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June 16, 1983

Center For Auto Safety, Plaintiff
Department Of Justice, Defendant

Hogan, D.J.

The opinion of the court was delivered by: HOGAN


 I. Introduction

 This case is before the Court on cross-motions for summary judgment. Plaintiff, the Center for Auto Safety (the "Center"), requests declaratory and injunctive relief requiring the Defendant, the Department of Justice ("DOJ" or the "Government"), to release certain documents requested by it under the Freedom of Information Act ("FOIA"). *fn1" The documents concern the DOJ's consent to the modification of certain restrictions in a 1969 antitrust Consent Decree entered into by the automotive industry (hereinafter the "Consent Decree"). *fn2"

 The principal questions presented in this case are whether the documents requested are exempt from disclosure pursuant to Exemption 5 *fn3" and/or Exemption 7(A) *fn4" of the FOIA. 5 U.S.C. Sec. 552(b)(5), (7)(A). This requires the Court to carefully review the plaintiff's request and decide whether the statutory presumption in favor of disclosure is overcome by the language and purpose of either Exemption 5 or Exemption 7(A). *fn5"

 II. Procedural and Factual Background

 In order to decipher which documents are at issue in this case, it is necessary to review the initial request of the plaintiff and the DOJ's responses thereto. The Center filed its FOIA request on November 25, 1981, noting its interest in the automobile industry antitrust case. It requested the release of all documents, records, and communications prepared in connection with the Government's decision to seek a modification of the Consent Decree. Plaintiff's Exh. A. After requesting additional time on November 25, 1981, the DOJ responded on January 5, 1982. Defendant's Exh. B. It disclosed some 139 pages of documents, withholding portions thereof, and withheld 53 documents in their entirety. Declaration of Leo D. Neshkes, par. 6, and Defendant's Exh. B. The portions of the first 139 pages were withheld pursuant to Exemptions 7(C) and 7(D) of the FOIA, while the latter 53 documents were withheld pursuant to Exemption 7(A) and, in part, under Exemption 5. *fn6"

 By letter dated May 24, 1982, the DOJ responded to plaintiff's appeal and released 16 additional documents. Neshkes Declaration, pars. 8, 9; Defendant's Exh. D. The response noted that the additional materials released consisted of all those documents withheld "exclusively" pursuant to Exemption 7(A) and that the remaining 37 documents, or portions thereof, are withheld pursuant to Exemptions 5 and 7(A). Id.

 Shortly thereafter on June 3, 1982, the DOJ filed a motion for summary judgment with respect to all of the documents embraced by the complaint in this case. In its motion, the DOJ contends that the remaining 37 documents, an index of which is attached as Defendant's Exh. E [not reported. -- CCH.], are properly exempt from mandatory disclosure pursuant to both Exemptions 5 and 7(A). *fn9"

 The documents can be divided into three separate groups for analytical purposes. The first group, Document Nos. 1-4 and 23, consists of those documents prepared by the DOJ in connection with the modification to the Consent Decree, but which were not shown to defendants in the Consent Decree case. The second group, Document Nos. 5-10, 12-20, and 24-37, consists of those documents prepared by the DOJ in connection with the modification to the Consent Decree but which were shown or transmitted to the defendants. The third group, Document Nos. 11, 21, and 22, consists of those documents prepared by the defendants in the Consent Decree case and submitted to the DOJ in connection with its decision to propose a modification to the Consent Decree. Plaintiffs, in their Reply Memorandum at 11 n. 3, after reviewing the DOJ's motion and index of documents, withdrew their claim for any "documents which were not furnished by or shared with the Smog Conspiracy Defendants. (Documents number 1-4 and 23 . . .)." Accordingly, the court finds the only questions remaining before it concern the second and third groups of documents since the first group is not to be disclosed.

 The DOJ argues that all of the remaining documents are exempt from mandatory disclosure under FOIA. Both Exemption 5 and Exemption 7(A) are cited as independent grounds for withholding all or part of the remaining 32 documents. In support of its motion for summary judgment, two affidavits are attached from Leo D. Neshkes *fn10" and Bernard M. Hollander, *fn11" which set forth in detail the nature and function of the documents withheld and the potential harms which would flow from release of the documents. The essence of the DOJ's argument is that: (1) the documents withheld are an integral part of the Department's decision-making process leading to the modification of the consent decree and are exempt from disclosure as internal predecisional government documents under Exemption 5; *fn12" and (2) the same documents are investigatory records whose disclosure would interfere with on-going enforcement activities in the Consent Decree case and in other consent decree negotiations within the meaning of Exemption 7(A).

 Plaintiff responds that neither exemption applies because all of the documents were shown to or submitted by the defendants in the Consent Decree case and were part of a cooperative effort to revise the Consent Decree in defendants' favor. The plaintiff alternatively reasons that Exemption 5 cannot be read to apply to the documents because they were not internal agency documents within the meaning of FOIA. Disclosure to the Consent Decree defendants, plaintiff contends, destroys the documents' internal status. In addition, plaintiff independently argues that Exemption 7 is inapplicable because the nature of the cooperation between the parties in seeking to ameliorate the terms of the 1969 Consent Decree would turn the meaning of law enforcement purpose and investigatory records on its head.

 III. Exemption 5

 The first issue presented is whether Exemption 5 authorizes the DOJ to withhold all or part of 32 documents, three of which were generated outside the agency and 29 of which were prepared by the agency in connection with the Consent Decree modification negotiations and either shown to or transmitted to the defendants in that case.

 Exemption 5 provides that the mandatory disclosure provisions of the FOIA do not apply to "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. Sec. 552(b)(5). In other words, the burden is on the DOJ to establish that the documents: "(1) are 'inter-agency or intra-agency memorandums or letters,' and (2) consist of material that 'would not be available by law to a party . . . in litigation with the agency.'" Federal Open Market Committee v. Merrill, supra, 443 U.S. at 352; Coastal States Gas Corp. v. Department of Energy, 199 U.S. App. D.C. 272, 617 F.2d 854, 862, 868 (D.C. Cir. 1980).

 The DOJ argues strenuously that both the documents prepared by the government and shown to the Consent Decree defendants and the documents prepared by the Consent Decree defendants are "intra-agency . . . memorandums or letters." In support of their arguments the DOJ cites Ryan v. Department of Justice, 199 U.S. App. D.C. 199, 617 F.2d 781 (D.C. Cir. 1980); Brockway v. Department of the Air Force, 518 F.2d 1184 (8th Cir. 1975); Wu v. National Endowment for Humanities, 460 F.2d 1030 (5th Cir. 1972), cert. denied, 410 U.S. 926, 35 L. Ed. 2d 586, 93 S. Ct. 1352 (1973); and Soucie v. David, 145 U.S. App. D.C. 144, 448 F.2d 1067 (D.C. Cir. 1971). The Court finds each of these cases to be distinguishable from this case.

 In Ryan, the D.C. Circuit considered whether advice solicited by the DOJ from individual Senators concerning judicial selection procedures was an "inter-agency or intra-agency" memoranda or letters. 617 F.2d at 784. The Court held that the documents fell within the meaning of "inter-agency" and "intra-agency," although prepared outside the agency. Id. at 789-90. Central to its decision, however, was the fact that the advice was obtained on the Department's initiative. Id. at 789. *fn13"

 In this case, the DOJ has not refuted plaintiff's contention that the Consent Decree defendants submitted documents in an effort to seek modification of the 1969 Consent Decree. The fact that the DOJ originally brought the suit resulting in the Consent Decree is too remote an event to categorize the letters as a response to a DOJ request. *fn14"

 It is also relevant that the Senators, unlike the Consent Decree defendants, are part of the federal government and exercise, collectively, concurrent power with the Executive Branch with respect to judicial nominations, a governmental function. U.S. Const., Art. II Sec. 2 Cl. 2. The modification of a consent decree, on the other hand, involves negotiations between the DOJ and its adversary. It is not a purely internal governmental matter in which the DOJ is simply seeking the advice of disinterested consultants. *fn15"

 In Brockway, the Eighth Circuit held that statements of witnesses to military personnel in a military aircraft safety investigation, as opposed to a pre-suit investigation, were exempt as intra-agency documents. 518 F.2d at 1194. The Court recognized the special importance of uncovering causes of aviation accidents and encouraging frank discussion, but expressly limited its interpretation of Exemption 5 to the "narrow facts" of the case and noted that it is the exception, not the rule, where disclosure defeats rather than supports the quality of government action. Id. More recently, however, the Ninth Circuit, in Weber Aircraft Corp. v. United States, held that similar statements of witnesses in a military aircraft accident investigation did not fall within Exemption 5. *fn16" Even under Brockway, it is still not clear whether "sunlight" is detrimental to the DOJ's Consent Decree negotiation process, and whether that fact, if true, is an adequate reason to preclude disclosure under FOIA. *fn17"

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