The opinion of the court was delivered by: SPORKIN
Stanley Sporkin, United States District Judge
This case comes before me on the parties' cross motions for summary judgment. Plaintiff Gould Incorporated (Gould) has brought this action under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, to enjoin the General Services Administration (GSA) from withholding certain records. The records at issue are two post-award audit reports prepared by the GSA's Office of Inspector General (OIG) and supporting materials, including certain records obtained from Gould.
The defendant has denied plaintiff access to these records on the ground that they are exempt from disclosure pursuant to Exemption 7(A) of FOIA. According to the GSA, the records at issue are "records or information compiled for law enforcement purposes." 5 U.S.C. § 552(b)(7)(A). Defendant contends that disclosure of these records "could reasonably be expected to interfere with enforcement proceedings." Id. § (b)(7)(A). Plaintiff takes issue with both of these contentions and advances several other arguments.
The central argument plaintiff advances, however, relates to defendant's assertion that the records at issue were "compiled for law enforcement purposes." According to plaintiff, "the threshold legal issue" I must resolve is:
Plaintiff's Memorandum of Points and Authorities in Support of Plaintiff's Motion for Partial Summary Judgment ("Plaintiff's Summary Judgment Brief") at 2.
Because otherwise non-exempt documents created by a government agency may subsequently become eligible for Exemption 7(a) if they are thereafter "compiled for law enforcement purposes," I have resolved this "threshold legal issue" in favor of defendant GSA. The post-award audit reports at issue in this case were "compiled for law enforcement purposes."
Because the records sought in this case are now an integral part of an ongoing criminal investigation, and because their disclosure "could reasonably be expected to interfere with [those] enforcement proceedings," 5 U.S.C. § 552 (b)(7)(A), defendant is entitled to Summary Judgment.
Beginning in October 1980, the DeAnza Systems, Inc. ("DeAnza") and its successor company, Gould Inc. Imaging and Graphics Division ("Gould") have had a series of GSA Multiple Award Schedule ("MAS") contracts for the purchase of image array processors. The first two contracts (GS-00S-6385 and GS-00S-41001) were for one year terms. The third contract (GS-GS-00S-45271) was in effect from July 19, 1982 to May 31, 1984. See Declaration of Otis R. Duvernay, Jr. ("Duvernay Declaration") at para. 8. Gould's fourth GSA MAS contract (GS-00F-78072) -- which is the focus of this controversy -- was entered into on November 30, 1984 and was scheduled to expire on September 30, 1987.
In 1984, the OIG's Field Office of Audits in San Francisco, California,
conducted a pre-award audit of a pricing proposal submitted by Gould in response to a GSA solicitation for a $ 2.4 million MAS contract to supply instruments and laboratory equipment. According to defendant, "the pre-award audit raised questions regarding the extent to which Gould had properly disclosed to GSA discounts offered to some of its other customers." Defendant's Summary Judgment Brief at 4. A copy of the pre-award audit was provided to Gould on July 10, 1984. See Duvernay Declaration at para. 4.
As a result of the findings of the pre-award audit, particularly concerns raised about certain pricing discounts, GSA delayed awarding the (fourth) contract to Gould. Subsequent explanations by Gould satisfied GSA's concerns. Accordingly, GSA awarded the fourth contract (GS-00F-78072) to Gould on November 30, 1984. See Duvernay Declaration at para. 5.
On June 26, 1984, prior to the award of contract GS-00F-78072, the Office of Audits provided the Regional Inspector General for Investigation in San Francisco with its pre-award audit findings. On February 25, 1985, the Office of Investigations advised the Office of Audits that it would not initiate an investigation of Gould at that time. It asked the Office of Audits to keep it informed if any further developments took place during the post-award audits of Gould's earlier contracts.
In September, 1985, the Office of Audits began a post-award audit of Gould's third contract, GS-00S-45271, which was for the supply of imaging processing systems, and which was in effect from July 19, 1982 to May 31, 1984. After preliminary work on this audit was completed, the scope of the audit was expanded to conclude the first year of Gould's (fourth) contract GS-00F-78072, even though this three-year contract had not yet been completed. According to defendant, initiation of a post-award audit prior to the completion of the contract is not GSA's common practice. See Duvernay Declaration at paras. 3, 7, 10.
Defendant also claims that the Office of Audits -- per Mr. Duvernay, the auditor chiefly responsible for the Gould matter, -- kept the Office of Investigations informed about its findings during the course of its post-award audits. See Cavallo Declaration at para. 5; Duvernay Declaration at para. 6. These draft audit reports were substantially completed by March 20, 1986.
Based on the findings in the post-award audits, it was determined that Mr. Duvernay's pencil draft audit reports would not be reduced to final draft reports for review by the contracting officer and contractor.
Instead, they were converted into two final audit reports dated October 29 and 31, 1986, and were transmitted directly to the Inspector General's Field Office of Investigations at that time.
The audit reports submitted to the OIG'S Office of Investigations by Duvernay are the subject of a current investigation being conducted jointly by the Office of Investigations and the United States Attorney's Office in San Francisco.
The records collected and generated by the Office of Audits during its post-award audit are now an integral part of this investigative effort. See Cavallo Declaration at para. 6.
This all occurred prior to Gould's filing of its January 15, 1987, FOIA request with GSA seeking among other things, "all audit reports from audits conducted by the GSA of [Gould] or Deanza Systems, Inc., and all supporting documents thereto; all [Gould] documents held by or otherwise in the possession of GSA; and all indices, catalogs, descriptions, or other lists of documents relating to all GSA audits of [Gould]."
On February 5, 1987, Defendant denied plaintiff access to the requested materials on the ground that they were exempt from disclosure pursuant to Exemption 7(A) of FOIA.
According to defendant, access to the audit reports and related documents was denied to plaintiff because they:
. . . contain the names of witnesses and sources of information and also consist of records furnished in confidence to the OIG by these sources. The documents also contain auditor Duvernay's opinions and articulations of his suspicions of fraud which resulted from information gathered during the post-award audits, including information provided by Gould employees.
See Cavallo Declaration at paras. 7-8; Defendant's Statement at para. 9. After exhausting its administrative appeals,
plaintiff filed this action on May 15, 1987.
The Freedom of Information Act was enacted by Congress in 1966, and substantively amended in 1974, 1976 and 1986 to provide a statutory right of public access to documents and records held by federal government agencies. The Act sets forth "a policy of broad disclosure of Government documents in order 'to ensure an informed citizenry, vital to the functioning of a democratic society.'" Federal Bureau of Investigation v. Abramson, 456 U.S. 615, 621, 72 L. Ed. 2d 376, 102 S. Ct. 2054 (1982) (quoting NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 57 L. Ed. 2d 159, 98 S. Ct. 2311 (1978)). The FOIA requires disclosure of requested records and documents unless the requested material fits within one of the nine statutory exemptions set out in subsection (b), 5 U.S.C. § 552(b).
This case concerns the appropriate interpretation of Exemption 7, as applied to the GSA. The seventh exemption of FOIA provides in relevant part that:
(b) This section does not apply to matters that are:
(7) records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information
(A) could reasonably be expected to interfere with enforcement proceedings. . . .
5 U.S.C. § 552(b)(7)(A) (as amended in 1986 by Pub. L. 99-570). In order to fall within Exemption 7(A), records or information must be "compiled for law enforcement purposes" and it must be established by the agency that their production "could reasonably be expected to interfere with enforcement proceedings." 5 U.S.C. § 552 (b)(7)(A); Abramson, 456 U.S. at 622-23; Bevis v. Department of State, 255 U.S. App. D.C. 347, 801 F.2d 1386, 1388 (D.C. Cir. 1986).
A. The Records Were Compiled for Law Enforcement Purposes
Defendant has suggested two related, but independent bases for finding that the audit reports were "compiled for law enforcement purposes." First, defendants contend that the original drafting of the audit reports by Duvernay and the Office of Audits constituted a compilation of records for law enforcement purposes. In the alternative, assuming that the documents were not initially prepared for law enforcement purposes, defendant contends that the subsequent inclusion -- or compiliation -- of these ...