The opinion of the court was delivered by: ROBINSON, JR.
Before the Court are Cross Motions for Summary Judgment in the above captioned Freedom of Information Act litigation. 5 U.S.C. § 552(b), et seq. (1976). Plaintiff is seeking approximately 700 documents which Defendant has withheld pursuant to Exemptions 5, 7(C) and 7(D). Id. §§ 552(b), 5, 7(C) and 7(D) (1976).
The sought documents were generated by a SEC investigation of Canadian Javelin (CJ) and subsequent enforcement actions brought against the Company.
I. The Claimed Exemptions
Defendants contend that staff papers are privileged under the work production doctrine, under the attorney-client privilege and under governmental privilege and thus, under Exemption 5, were properly withheld. The SEC argues that a district court's finding in a civil discovery context that claims of privilege as to the sought documents were "well founded"
is dispositive of the Exemption 5 claims in this case. The SEC further contends that staff summaries of fact are exempt because they reflect staff judgment and are part of the deliberative process which Exemption 5 protects.
As to information provided the SEC by foreign sources, the SEC maintains that information is exempt under Exemption 5 as "inter-agency/intra-agency memos." The SEC also relies on Exemption 7(D), which protects confidential sources to the extent release of investigatory records would reveal those sources, in withholding foreign source information. The SEC asserts that the foreign source information was from a confidential source received under a promise of confidentiality and thus is subject to Exemption 7(D).
Names, addresses, social security numbers and phone numbers of individuals mentioned in securities transactions reports, bank records, list of subscribers, SEC memos and other records were withheld pursuant to Exemption 7(C), the investigatory records/personal privacy exemption. Plaintiff maintains that the individuals' names and other information are needed in connection with litigation in which CJ is engaged.
Finally, Defendants assert that the Chairman of the SEC, the General Counsel and the FOIA officer are not proper parties defendant in the FOIA action.
II. The Exemption Five Issues
Exemption 5 of FOIA allows an agency to withhold "inter-agency or intra-agency memoranda or letters which would not be available by law to a party other than an agency in litigation with an agency." 5 U.S.C. § 552(b)(5) (1976). The basis of this exception to the liberal disclosure policy of the Act is:
"the free and uninhibited exchange and communication of opinions, ideas, and points of view-a process as essential to the wise functioning of a big government as it is to any organized human effort."
Ackerly v. Ley, 137 U.S. App. D.C. 133, 420 F.2d 1336, 1341 (D.C.Cir.1969). Defendants rely on Exemption 5 in withholding SEC files relating to the Canadian Javelin investigation and enforcement proceedings, including factual summaries and information submitted by foreign sources.
Defendants are correct in asserting that Exemption 5 incorporates civil discovery privileges. See Coastal States Gas Corp. v. Department of Energy, 199 U.S. App. D.C. 272, 617 F.2d 854, 862 (D.C.Cir.1980). The attorney-client privilege is incorporated into Exemption 5, Mead Data Central v. Department of Air Force, 184 U.S. App. D.C. 350, 566 F.2d 242, 256 (D.C.Cir.1977), as is the work product doctrine, NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 154, 95 S. Ct. 1504, 1518, 44 L. Ed. 2d 29 (1975), and governmental privilege. Id. at 150, 95 S. Ct. at 1516.
Defendants are mistaken, however, when they suggest that a prior ruling in a federal district court on civil discovery privileges as to the sought documents is controlling in this FOIA case. An examination for purposes of Exemption 5 is independent of any other judicial examination. H.Rep.No.793, 95th Cong., 1st Sess. at 6. The decisions reached by this Court are based upon an independent examination and are not premised on the earlier federal court examination of the claimed privileges.
Defendants do not make out a case for employment of Exemption 5 via the attorney-client privilege. A fundamental prerequisite of the attorney-client privilege is confidentiality at the decision making level both at the time of the communication and subsequent to it. Coastal States, 617 F.2d at 863. Such confidentiality requires limited access to the documents within the agency itself. Id. Nowhere in the pleadings or affidavits does the SEC demonstrate the confidentiality required for invocation of the ...