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COTTON v. ADAMS

June 25, 1992

CATHERINE COTTON Plaintiff,
v.
ROBERT MCC. ADAMS, Defendant.



The opinion of the court was delivered by: CHARLES R. RICHEY

 INTRODUCTION

 Pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, Plaintiff Catherine Cotton seeks "a copy of any and all reports of the Office of Inspector General of the Smithsonian, respecting Andrea G. Snyder, a Senior Buyer at the Smithsonian Institution's Museum Shops, and Kathy Borrus, a Merchandise Manager at the Smithsonian Institution's Museum Shops." Plaintiff's FOIA Request, attached as Exhibit A to Plaintiff's Motion for Summary Judgment. The Defendant Smithsonian Institution has released two of the four documents responsive to the Plaintiff's request. *fn1" The parties have filed cross-motions for summary judgment with respect to the agency's decision to withhold the remaining two documents in their entireties under FOIA Exemptions (b)(6) and (b)(7)(C). See 5 U.S.C. §§ 552(b)(6), (b)(7)(C). The Defendant also petitions the Court to reconsider its determination that the Smithsonian Institution is an "agency" subject to the FOIA. See Order, Cotton v. Adams, Civ. 91-2827 (D.D.C., March 18, 1992) and Transcript of March 18, 1992 Motions Hearing.

 ANALYSIS

 A.THE DEFENDANT'S MOTION FOR RECONSIDERATION OF THE COURT'S MARCH 18, 1992 ORDER SHALL BE DENIED.

 On March 18, 1992, after hearing oral argument and upon consideration of the pleadings, this Court determined that the Smithsonian Institution is subject to the FOIA. See Transcript of March 18, 1992 Motions Hearing; Order, Cotton v. Adams, Civ. 91-2827 (D.D.C., March 18, 1992) (denying Defendant's Motion to Dismiss on this basis). The Defendant's Motion for Reconsideration does not present any new arguments or evidence. Rather, the Defendant reiterates its legal arguments.

 Upon reconsideration of the Defendant's claims, the Court does not find any basis to alter its prior decision. As the Plaintiff pointed out, Congress amended the definition of "agency" in § 552(f) of the FOIA in order "to include those entities which may not be considered agencies under section 551(1) of Title 5, U.S. Code, *fn2" but which perform governmental functions and control information of interest to the public." H.R. Rep. No. 876, 93rd Cong., 2d Sess. 8-9 (1974), reprinted in 1974 U.S. Code Cong. & Admin. News at 6274. The Smithsonian is subject to the FOIA because it performs governmental functions as a center of scholarship and national museum responsible for the safekeeping and maintenance of national treasures. See Expeditions Unlimited Aquatic Enterprises, Inc. v. Smithsonian Institution, 566 F.2d 289-296 (D.C. Cir. 1977), cert. denied, 438 U.S. 915, 57 L. Ed. 2d 1160 , 98 S. Ct. 3144 (1978) (finding that the Smithsonian is an agency for purposes of the Federal Tort Claims Act).

 Moreover, as the Court explained at the Hearing, the Smithsonian's structure reveals its status as an authority of the government properly subject to the FOIA. The parties do not dispute that the Smithsonian receives federal funds for many of its operations, that it is chartered by an Act of Congress, and that it has a majority of civil service employees. Furthermore, the Smithsonian receives the benefits of agency status by virtue of the fact that it receives representation from the United States Attorney, absolute governmental immunity in libel suits, and other benefits in property transfers. For all of these reasons, as well as those expressed at the conclusion of the March 18, 1992 Hearing, the Court finds that the Smithsonian is subject to the FOIA.

 B. THE GOVERNMENT HAS NOT ESTABLISHED THAT THE RECORDS AT ISSUE WERE COMPILED FOR LAW ENFORCEMENT PURPOSES WITHIN THE MEANING OF FOIA EXEMPTION 7(C).

 An agency's investigation of its own employees is for 'law enforcement purposes' only if it focuses 'directly on specifically alleged illegal acts, illegal acts of particular identified officials, acts which could, if proved, result in civil or criminal sanctions.

 Stern v. FBI, supra, (citations omitted). See also Greenpeace, U.S.A., Inc. v. Environmental Protection Agency, 735 F. Supp. 13, 15 (D.D.C. 1990) (records pertaining to whether an EPA employee violated EPA regulations concerning appearances at industry-sponsored functions do not qualify as records compiled for law enforcement purposes under Exemption 7).

 The Defendant has not established that the two documents at issue were compiled for "law enforcement" purposes and therefore cannot claim the broad protections of Exemption 7(C). The Defendant merely asserts that, because the Inspector General conducted an investigation, the documents responsive to Plaintiff's FOIA requests "plainly must have been compiled for law enforcement purposes." Defendant's Reply to Plaintiff's Opposition, filed May 6, 1992, at 3. The Defendant's assertion of a law enforcement purpose does not comport with the record in this case, however. Although both parties agree that the Inspector General has the ability to conduct investigations as part of the prosecution of a civil or criminal violation, both parties acknowledge that the Inspector General also investigates internal matters concerning agency inefficiency and mismanagement. *fn5" As in Greenpeace v. EPA, supra, the investigation to which these documents pertain could merely involve an alleged violation of the Smithsonian's own rules. Therefore, the fact that the Inspector General conducted an investigation, without more, does not allow the Court to infer that the investigation had a law enforcement purpose and the Court must deny the Defendant's Motion for Summary Judgment on the basis of Exemption 7(C).

 C. THE NAMED INDIVIDUALS HAVE AN EXEMPTION 6 PRIVACY INTEREST IN THESE MATERIALS WHICH OUTWEIGHS THE ASSERTED PUBLIC INTEREST IN THEIR RELEASE AND WHICH ...


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