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PLAYBOY ENTERPRISES v. UNITED STATES DOJ

March 31, 1981

PLAYBOY ENTERPRISES, INCORPORATED, Plaintiff,
v.
UNITED STATES DEPARTMENT OF JUSTICE, Defendant



The opinion of the court was delivered by: JOHNSON

MEMORANDUM OPINION

This action, brought pursuant to the Freedom of Information Act, 5 U.S.C. § 552 (1976) (FOIA), is before the Court upon cross-motions for summary judgment filed by the parties. The plaintiff Playboy Enterprises, Inc. has sought, and the defendant *fn1" United States Department of Justice has resisted, disclosure of the Gary Thomas Rowe, Jr. Task Force Report (Report). For the reasons more fully set forth below, the Court will deny the defendant's motion for summary judgment, grant the plaintiff's motion for summary judgment, and order the release to plaintiff of certain portions of the Report.

 Background of the Litigation

 In July 1978, Senators Edward M. Kennedy and James Abourezk expressed to the Justice Department an interest in receiving a report concerning allegations that Gary Thomas Rowe, Jr. had committed violent crimes while serving as an FBI informant within the Ku Klux Klan in Alabama during the early 1960's. *fn2" The 302 page document at issue in this case was prepared by a task force, convened within the Office of Professional Responsibility of the Department of Justice and at the direction of then Attorney General Griffin Bell, whose function it was to investigate and to review the activities of Rowe and the FBI's handling of him as an informant. Specifically, the task force of four attorneys was created to investigate and to report on the following: *fn3"

 
(1) Whether FBI personnel acted improperly in handling Mr. Gary Thomas Rowe while he served as a Bureau informant within the United Klans of America (UKA);
 
(2) Whether Civil Rights Division attorneys, who tried United States v. Eaton, et al. (the federal civil rights case arising out of the highway murder of Mrs. Viola Liuzzo), were aware of Mr. Rowe's alleged unreliability or suspected he was unreliable; and
 
(3) Whether there is any evidence to substantiate the allegation that Mr. Rowe was responsible for the death of Mrs. Viola Liuzzo (to the extent this is possible without prejudicing the rights of Mr. Rowe or the State of Alabama in view of Mr. Rowe's recent state indictment for the murder).

 Through an affidavit submitted by defendant in support of its motion, the defendant relates that between the end of October 1978 to the end of January 1979, the task force reviewed all of the pertinent portions of nearly 800 volumes of FBI records located in Washington, D.C., Birmingham, Mobile, Atlanta and Savannah. The next two months were spent conducting 64 interviews of present and former FBI Headquarters officials, FBI agents, Klansmen, FBI informants (including Gary Thomas Rowe), state and local law enforcement officials of Alabama, Department attorneys, and other individuals. The Report was submitted to the Attorney General in July 1979.

 In March 1980, the plaintiff sought access to the Report by filing with defendant a FOIA request. This request, as well as an appeal, was denied. The defendant asserts the Report is exempt from disclosure in its entirety on the basis of Exemptions 2, 3, 5, 6, and 7(A-D) of the FOIA, 5 U.S.C. §§ 552(b)(2), (b)(3), (b)(5), (b)(6), (b)(7)(A-D). Subsequent to the filing of the complaint in this case, defendant filed the first of two affidavits by Michael Shaheen, Counsel on Professional Responsibility. Pursuant to court order, a second affidavit by Michael Shaheen was filed, followed by defendant's motion for summary judgment accompanied by an affidavit of then-Attorney General Benjamin Civiletti. The plaintiff filed its cross-motion for summary judgment thereafter.

 In its motion for summary judgment the defendant contends that, notwithstanding other FOIA Exemptions which apply to the Report, the Report is exempt from disclosure in its entirety pursuant to Exemption 5 *fn4" of the FOIA which protects from disclosure the "deliberative process" of an agency. At a hearing on the cross-motions for summary judgment and by subsequent Order, *fn5" this Court directed defendant to submit for in camera review, a detailed affidavit describing more fully the nature of the deliberative process sought to be protected and the applicability of Exemption 5 to the document.

 The Court has considered carefully the memoranda of points and authorities in support of and in opposition to the cross-motions for summary judgment, the defendant's affidavits on the record, the in camera affidavit, the arguments of counsel for the parties and the entire record *fn6" before the Court. The Court finds that Exemption 5 is not properly invoked to withhold the entire Report. The Court also finds that Exemptions 2 and 6 do not apply to any portions of the Report. The inapplicability of these Exemptions, as well as the applicability of other claimed exemptions to portions of the Report, will be discussed seriatim.

 Exemption 5

 Exemption 5 of the Freedom of Information Act exempts from mandatory disclosure:

 
inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.

 5 U.S.C. § 552(b)(5). This exemption incorporates into the FOIA certain principles of civil discovery law, and "it is reasonable to construe Exemption 5 to exempt those documents, and only those documents, normally privileged in the civil discovery context." N.L.R.B. v. Sears, Roebuck & Co., 421 U.S. 132, 149, 95 S. Ct. 1504, 1515, 44 L. Ed. 2d 29 (1975). However, the situations are not identical, *fn7" and "at best the discovery rules can only be applied under Exemption 5 by way of rough analogies," EPA v. Mink, 410 U.S. 73, 86, 93 S. Ct. 827, 835, 35 L. Ed. 2d 119 (1973). It appears to be undisputed between the parties, and the Court is persuaded by the affidavits, that the Report qualifies as an "intra-agency memorandum" or document. The next inquiry then is whether the Report as an intra-agency memorandum falls within that class of documents protected by Exemption 5. As was stated most recently by the Court of Appeals in this Circuit:

 
The courts have recognized that Exemption 5 protects as a general rule, materials which would be protected under the attorney-client privilege, Mead Data Central, Inc., 184 U.S.App.D.C. at 360-363, 566 F.2d at 252-255; the attorney work product privilege, N.L.R.B. v. Sears, 421 U.S. at 154, 95 S. Ct. at 1518; Bristol-Myers Co. v. F. T. C., 194 U.S.App.D.C. 99, 598 F.2d 18 (1978); or the executive "deliberative process" privilege, EPA v. Mink, 410 U.S. at 85-90, 93 S. Ct. at 835-837, Vaughn v. Rosen, 173 U.S.App.D.C. 187, 523 F.2d 1136 (1975) (Vaughn II).

 Taxation With Representation Fund v. Internal Revenue Service, 646 F.2d 666, 676 (D.C.Cir.1981), citing Coastal States Gas Corp. v. Department of Energy, 199 U.S. App. D.C. 272, 617 F.2d 854, 862 (D.C.Cir.1980). Since the defendant Department of Justice relies exclusively on the deliberative process privilege, it is the only privilege the Court will consider.

 
There are essentially three policy bases for the privilege. First, it protects creative debate and candid consideration of alternatives within an agency, and, thereby improves the quality of agency policy decisions. Second, it protects the public from the confusion that would result from premature exposure to discussions occurring before the policies affecting it had actually been settled upon. And, third, it protects the integrity of the decisionmaking process itself by confirming that officials should be judged by what they decided, not for matters they considered before making up their minds.

 Jordan v. United States Department of Justice, 192 U.S.App.D.C. at 163-64, 591 F.2d at 773. (citations omitted). The Court in Jordan stated two prerequisites which must be met by a document for it to be covered by Exemption 5.

 
First, the document must be "pre-decisional'. The privilege protects only communications between subordinates and superiors that are actually antecedent to the adoption of an agency policy .... The second prerequisite to privileged status is that the communication must be "deliberative', that is, it must actually be related to the process by which policies are formulated. (Emphasis in the original).

 Jordan v. United States Department of Justice, 192 U.S.App.D.C. at 165, 591 F.2d at 774. The Court noted the language in Vaughn v. Rosen (Vaughn II), 173 U.S.App.D.C. 187, 194-95, 523 F.2d 1136, 1143-44 (1975) to the effect that:

 
It is not enough to assert, in the context of Exemption 5, that a document is used by a decisionmaker in the determination of policy.... Rather, to come within the privilege, and thus within Exemption 5, the document must be a direct part of the deliberative process in that it makes recommendations or expresses opinions on legal or policy matters. Put another way, pre-decisional materials are not exempt merely because they are pre-decisional; they must also be a part of the agency give-and-take of the deliberative process by which the decision itself is made.

 The Court is satisfied that the Report sought in the instant case is "pre-decisional" to the extent that it was used by the Attorney General as a basis for his report to Senator Kennedy. *fn8" However, as the cases have taught us, this determination is not enough to find the Report properly is withheld pursuant to Exemption 5.

 The defendant vigorously asserts that the entire Report is deliberative in nature arguing that it contains the results of analysis, evaluation, comparison, and selection done by the task force, and these tasks are at the heart of the deliberative process. Also, it advances, that the document is deliberative in nature is clear from the mandate given the task force which required not only that difficult and sensitive issues be investigated but also that recommendations be formulated with respect to possible actions which could be taken by the Department. The defendant is cognizant of the fact that the statute provides for the release of any reasonably segregable portions of a document, after deletions of the portions which are exempt under this subsection. 5 U.S.C. § 552(b). As applied to Exemption 5 and the deliberative process, the Supreme Court has stated that the exemption "requires different treatment for materials reflecting deliberative, or policymaking processes on the one hand, and purely factual investigative matters on the other". EPA v. Mink, 410 U.S. at 89, 93 S. Ct. at 837. However, the cases have held that Exemption 5 is intended to protect the deliberative process of government and not just deliberative material, Mead Data Central, Inc. v. United States Department of Air Force, 184 U.S.App.D.C. 350, 364, 566 F.2d 242, 256. In Montrose Chemical Corp. v. Train, 160 U.S.App.D.C. 270, 278, 491 F.2d 63, 71, (1974) the Court found:

 
When a summary of factual material on the public record is prepared by the staff of an agency administrator, for his use in making a complex decision, such a summary is part of the deliberative process, and is exempt from disclosure under Exemption 5 of the FOIA.

 The Court in Montrose also stated that, "the work of assistants in separating the wheat from the chaff is surely just as much part of the deliberative process as is the later milling by running the grist through the mind of the ...


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