The Court finds the 29 documents fall within the scope of exemption 7(A).*
At the threshold, the Court determines that the 29 documents are "investigatory records" within the meaning of the FOIA as they were produced as part of the FTC investigation into the advertising practices of cigarette manufacturers.
The documents were also "compiled for law enforcement purposes". Courts have held that 7(A) applies when a law enforcement proceeding is "pending or contemplated", Coastal States Gas Corp. v. Department of Energy, 199 U.S. App. D.C. 272, 617 F.2d 854, 870 (D.C. Cir. 1980); or "in prospect", New England Medical Center Hospital v. NLRB, 548 F.2d 377, 383 (1976); or where the investigation will "hopefully lead to a prospective law enforcement proceeding", National Public Radio v. Bell, 431 F. Supp. 509, 514 (D.D.C.1977).
Interpreting the legislative history, courts have held that the purpose of the 1974 amendment to 7(A) was to allow disclosure of closed investigative files, while preventing it for active and prospective files, NLRB v. Robbins Tire & Rubber Co. (hereinafter Robbins ); 437 U.S. 214, 224-232, 98 S. Ct. 2311, 2318-2322, 57 L. Ed. 2d 159 (1978); see also, Title Guarantee Co. v. NLRB, 534 F.2d 484, 492 (2nd Cir. 1976) (quoting the Attorney General's Memorandum on the 1974 Amendments).
Senator Hart, the sponsor of the 1974 amendment stated that 7(A) prevented disclosure in those instances where it would harm "a concrete prospective law enforcement proceeding." 120 Cong.Rec. S9329 (Remarks of Senator Hart) (daily ed. May 30, 1974) (emphasis added).
A concrete and foreseeable possibility exists that enforcement litigation will ensue in the present case. The FTC staff investigation is active and the Commission has devoted substantial resources to it. Despite other possible outcomes of the investigation, such as a rulemaking proceeding, an enforcement proceeding is in prospect.
The final inquiry to be made is whether disclosure of the 29 documents would "interfere" with the government's case. All 29 documents at issue here relate directly to a survey to gather potential evidence for use in a future law enforcement adjudication. Disclosure would reveal preliminary evidence supporting the contemplated action, the focus of the investigation, important aspects of the planned strategy of Commission attorneys, the strengths and weaknesses of the government's case and the amount of resources devoted to the investigation. The documents in essence aggregate the impressions of many potential witnesses and the thrust of the contemplated case. In addition, document Nos. 22 and 23 are letters from consultants selected to review the survey to a Commission staff attorney, and thus identify individuals who Commission attorneys may seek as witnesses in future proceedings. Disclosure could also prematurely reveal the relative effectiveness of current health warnings.
Potential respondents would obtain an unfair litigation advantage by this premature disclosure. They could alter their litigation strategy as well as their pre-complaint activities to frustrate the imposition of effective remedies. Further, it could affect their responses to subsequent requests for information. Release of the documents would allow potential litigants insights into the FTC's strategy and evidence which it would not be able to obtain through established discovery procedures.
One of the principal congressional purposes in enacting exemption 7(A) is "to prevent harm (to) the Government's case in court ...". Robbins, supra, 437 U.S. at 224-25, 98 S. Ct. at 2318, 2319. The FOIA is not intended to function as a private discovery tool, id. at 242, 98 S. Ct. at 2327; Renegotiation Board v. Bannercraft Clothing Co., 415 U.S. 1, 22, 94 S. Ct. 1028, 1039, 39 L. Ed. 2d 123 (1974), nor is it intended to reveal the identity and testimony of potential witnesses. Robbins, supra, 437 U.S. at 239-42, 98 S. Ct. at 2325-2327.
Moreover, in order to invoke exemption 7(A), the government is not required to make a specific factual showing with respect to each withheld document that disclosure would actually interfere with a particular enforcement proceeding. Federal courts may make generic determinations that disclosure of particular types of investigatory records while a case is pending would generally interfere with enforcements proceedings. Id. at 236, 98 S. Ct. at 2323.
The Court finds release of the 29 documents would cause impermissible harm to the government's case. The Court further finds that the 29 documents are properly withheld in total, there being no reasonably segregable parts.
Accordingly, the Court holds that the plaintiff's motion should be denied and that the defendant is entitled to summary judgment. A separate order is attached hereto.
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