The non-disclosed portions of the letter summarize the evidence of St Germain's alleged misconduct. The evidence against a person is "inextricably intertwined" with the decision whether to file ethics charges. Thus it is not severable factual material. Compare Ryan, 617 F.2d at 791 (answers to questions such as how many persons Senators considered as possible nominees for judgeships and what was the make-up of any commission used to evaluate potential nominees clearly disclosable factual material; questions regarding the background of persons considered might be exempt).
In sum, Exemption 5 applies and the material is not severable, and therefore DOJ properly withheld the letter.
B) Work Product Privilege :
This privilege protects material prepared by attorneys in contemplation of litigation.
Plaintiff argues, much as it did with respect to the deliberative process privilege, that the privilege cannot apply because the referral letter was prepared after DOJ had decided not to prosecute; thus it was not prepared in contemplation of litigation.
DOJ counters that the work-product privilege should apply because it recites facts, and opinions about those facts, that the attorneys developed during the course of investigation. It sidesteps the "contemplation of litigation" requirement by arguing that the work-product privilege survives the end of the litigation. It further argues that the "purposes of the [FOIA] exemptions do not disappear when the information is incorporated in a new document or otherwise put to a different use." Defendant's Response to Plaintiff's Cross-Motion for Summary Judgment and Reply to Plaintiff's Opposition to Defendant's Motion for Summary Judgment, at 9-10 (quoting FBI v. Abramson, 456 U.S. 615, 629 n. 12, 72 L. Ed. 2d 376, 102 S. Ct. 2054 (1982)). DOJ's arguments are without merit.
That the work product privilege survives the end of litigation is irrelevant, because it only survives if it applied in the first instance. If the privilege never attached, it cannot survive. If the document was not prepared in contemplation of litigation, the work-product privilege never attached. DOJ virtually admits that the document was not prepared in contemplation of litigation.
Therefore its argument that the privilege survives the completion of litigation is meaningless.
This analysis also takes care of DOJ's attempt to extend Abramson. The purposes of an exemption may not disappear when the information is re-stated, but the exemption must be satisfied before the exemption's purposes appear; the exemption was not satisfied, because an essential requirement was not present, therefore there is no purpose to disappear. Moreover, there is no indication that Abramson, which involved the law enforcement privileges of exemption 7, will be extended to cover non-privileged restatements of material covered by an exemption other than exemption 7.
Exemption 7(C) :
This exemption covers "records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information . . . could reasonably be expected to constitute an unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(7)(C). In applying this exemption, the court must balance the privacy interests of affected individuals with the public interest in disclosure. The privacy interests at stake are those of St Germain and the witnesses listed in the referral letter.
Generally speaking, DOJ contends that the balancing act done in the grand jury disclosure matter was equivalent to what needs to be done under exemption 7(C). Therefore no further disclosure is warranted. Plaintiff counters that the different source for the right to disclosure (FOIA as compared to common law right of access to open judicial records), the prior disclosures in the grand jury matter, and the existence of a federal statute requiring disclosure of free meals accepted by Congressmen,
which statute was not brought to the attention of the court in the grand jury disclosure matter, mandates further disclosures. Plaintiff's first two arguments are without merit; its third, however, would compel further disclosure.
A) The Privacy Interests of St Germain :
Because court records are presumed open, and first amendment rights are implicated, the different source of the right to disclosure does little if anything to advance the inquiry. The task is the same -- to balance the privacy interests in disclosure against the public interests in disclosure. It is doubtful that the public has a greater interest in open agency records compared to its interest in open court records.
Contrary to plaintiff's assertion, the prior disclosures ordered in the grand jury disclosure matter, which revealed that St Germain was the subject of a criminal investigation and the general contours of the investigation, do not totally destroy St Germain's privacy interests. Further disclosures would likely renew interest in the matter, with a corresponding invasion of privacy. See Bast v. Department of Justice, 214 U.S. App. D.C. 433, 665 F.2d 1251, 1255 (D.C.Cir. 1981) ("Renewed publicity brings with it a renewed invasion of privacy. The renewed intrusion is subject, in its own right, to FOIA protection."). St Germain would likely now have to respond to the specific evidence against him, as set forth in the referral letter. Thus St Germain still has a privacy interest, subject to the effect of the federal statute requiring disclosure of acceptance of free meals, which must be balanced against the public interests in disclosure.
The public interest in disclosure, however, was arguably satisfied by the prior disclosures. The prior disclosures revealed the substance of the alleged wrongdoing and the government's reasons why the criminal justice system was inadequate to redress it. Again subject to the effect of the federal statute requiring disclosure of acceptance of free meals, it is arguable that plaintiff has not established the public interest in disclosure of the details of the investigation, in light of the disclosure as to the general contours of the investigation. Cf. King v. United States Department of Justice, 265 U.S. App. D.C. 62, 830 F.2d 210, 234 (D.C. Cir. 1987) (party seeking to invade a person's privacy interests under exemption 7(C) must "support 'adequately . . . [its] "public interest" claim with respect to the specific information being withheld.'") (quoting Senate of the Commonwealth of Puerto Rico v. United States Dep't of Justice, 262 U.S. App. D.C. 166, 823 F.2d 574, 588 (D.C.Cir. 1987)) (emphasis in original).
The federal statute requiring disclosure of acceptance of free meals, 2 U.S.C. § 702(a),
tips the balance in favor of disclosure. The district courts in this circuit have often held that disclosure statutes such as this strips away whatever privacy interest the public official may have with respect to the subject matter required to be reported; significantly, the executive branch usually acquieces in these holdings.
See Common Cause v. National Archives & Records Service, 202 U.S. App. D.C. 179, 628 F.2d 179, 184-85 (D.C. Cir. 1980) (citing Congressional News Syndicate v. United States Department of Justice, 438 F. Supp. 538, 543 (D.D.C. 1977), a case never appealed by the government, and Fund for Constitutional Government v. National Archives & Records Service, 485 F. Supp. 1 (D.D.C. 1978) (ordering release in accord with Congressional News), affirmed in part, reversed in part, 211 U.S. App. D.C. 267, 656 F.2d 856 (D.C.Cir. 1981)); see also Fund for Constitutional Government, 656 F.2d at 865 n. 21 (noting that the district court ordered release of material of the same character as that in Congressional News Syndicate, which part of the order was not at issue in the appeal).
The statute requires the reports to be in detail, and the reports are available to public inspection. See note 9 supra. Thus the statute makes the details a matter of public interest. And it is hard to see what privacy interests St Germain has in material of the type that should be filed and made available to the public, particularly in light of the prior disclosure. Therefore, the public interest in further disclosure would outweigh the privacy interests of St Germain.
B) The Privacy Interests of the Third Parties :
The third parties involved in this case are the sources of information for the letter and the owner of the restaurant where the meals were eaten.
Plaintiff does not really argue that it is entitled to disclosure of the identity of the third parties. But it notes that their interests can be protected by redactions. DOJ claims that redactions are insufficient, but does not explain why. If disclosure were otherwise appropriate, the Court would agree that redactions could protect the privacy interests of the third parties.
Exemption 7(D) :
This exemption protects "records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information . . . could reasonably be expected to disclose the identity of a confidential source . . . and, in the case of a record or information compiled by criminal law enforcement authority in the course of a criminal investigation . . ., information furnished by a confidential source." 5 U.S.C. § 552(b)(7)(D).
There is no doubt that the letter contains "information compiled for law enforcement purposes"; therefore the threshold test for the applicability of exemption 7 is satisfied. Likewise, there is no doubt that the information was "compiled by law enforcement authority in the course of a criminal investigation." The only dispute is whether DOJ has established that the information was "furnished by a confidential source." If it has, the information is not subject to disclosure, regardless of whether disclosure would reveal the identity of the source.
To establish that these sources understood that the information they provided would remain confidential,
DOJ provides two affidavits. One, from another case, describes the need for confidentiality generally, the types of circumstances requiring confidentiality, the problems for law enforcement if confidentiality was not assured, that confidentiality is the general rule, etc. The second affidavit is from the agent who conducted the interviews that formed the basis of the letter. He agrees with the first affidavit's conclusions that the "circumstances of interviews create an atmosphere in which a promise of confidentiality is understood"; and "that was true in this investigation." Bird Affidavit at 2.
Plaintiff contends that the affidavits do not sufficiently establish the circumstances of the interviews to allow the Court to conclude that the sources were "confidential"; the affidavits do not elaborate on the allegation that the "personal association" between the witnesses and St Germain indicate circumstances giving rise to an implied promise of confidentiality.
After reviewing the letter in camera,12 the Court agrees that the primary witness and the primary witness' associate can be considered "confidential" sources. Each of these persons had an "apparent conflict in allegiance present[ing] 'a circumstance from which the implied assurance of confidentiality could reasonably be inferred.'" King v. DOJ, 265 U.S. App. D.C. 62, 830 F.2d 210, 235 (D.C. Cir. 1987) (quoting district court opinion, 586 F. Supp. 286, 296 (D.D.C. 1983)).
The Court cannot say the same for other sources. Nothing, other than the general and conclusory affidavits, about the other sources or the circumstances in which they were interviewed provides a basis for inferring confidentiality. They have no known personal association with St Germain. Unless the Court were to hold that every interview contains an implied promise of confidentiality, which it refuses to do, DOJ has failed to show that these witnesses provided "confidential information." Thus, if disclosure were otherwise appropriate, while the information given by the primary witnesses would be protected, the information given by the other witnesses would not be covered by the exemption.
Exemption 5 applies, because the Court construes it along with the structure of the Act to protect the deliberative process of the government and not just of executive agencies. None of the material is severable, and DOJ properly withheld the letter.
The work-product privilege does not apply because the referral letter was not prepared in contemplation of litigation.
Applying exemption 7(C) would require further disclosure, subject to redactions to protect the privacy of other individuals named in the letter; St Germain's privacy interest does not, by itself, require redactions.
Applying exemption 7(D) would require redactions of information given by the primary witnesses; but DOJ has not sustained its burden of showing that the other witnesses were given assurances of confidentiality.
An appropriate Order accompanies this Memorandum.
Date: July 10, 1989
ORDER - July 10, 1989, Filed
In accordance with the Memorandum entered this date, it is by the Court this 10th day of July, 1989,
ORDERED, that Defendant's Motion for Summary Judgment is GRANTED; and it is
FURTHER ORDERED, that Plaintiff's cross-motion for summary judgment is DENIED; and it is
FURTHER ORDERED, that Plaintiff's complaint is DISMISSED WITH PREJUDICE.