The opinion of the court was delivered by: Hogan, District Judge.
This is a lawsuit under the FOIA, 5 U.S.C. § 552, in which
plaintiff is seeking documents relating to the criminal
investigation of the Reverend Sun Myung Moon ("Reverend Moon")
and Mr. Takeru Kamiyama ("Mr. Kamiyama") for alleged violations
of the federal tax laws.
By a letter dated March 7, 1997, Heggestad requested all
documents relating to the decision to prosecute in the case of
United States v. Moon, et al., including but not limited to
five documents specifically listed in the request: (1) the Tax
Division's initial memorandum dated August 4, 1981, recommending
that prosecution be declined; (2) the memorandum dated August
17, 1981, prepared by a Senior Reviewer in the Criminal Section
of the Tax Division concurring with the August 4, 1981
memorandum; (3) the August 20, 1981 decision of the Chief of the
Tax Division's Criminal Section that prosecution should be
declined; (4) the August 21, 1981 recommendation by Mr. Martin
Flumenbaum, Assistant U.S. Attorney for the Southern District of
New York, to Acting Assistant Deputy Attorney General for the
Tax Division that Mr. Kamiyama and Reverend Moon be prosecuted;
and (5) the September 10, 1981 memorandum decision of the Acting
Deputy Assistant Attorney General for the Tax Division, Mr.
Gilbert Andrews ("Andrews"), approving criminal proceedings.
Complaint ¶ 5; Ferrel Decl. ¶ 3. On August 27, 1997, the DOJ
responded to plaintiffs request by releasing three documents in
full, withholding five documents in part, and withholding two
documents in their entirety. Complaint ¶ 6; Ferrel Decl. ¶ 14.
These documents were withheld on the grounds that the materials
were exempt from disclosure under the FOIA pursuant to Exemption
3, in conjunction with Fed.R.Civ.P. 6(e) and 26 U.S.C. § 6103,
relating to confidential grand jury information; Exemption 5, in
conjunction with the attorney work product and deliberative
process privileges; and Exemption 7(C) relating to the
unwarranted invasion of the privacy of third parties. Complaint,
Attachment 2 (8/27/97 letter from Ferrel to plaintiff).
On November 14, 1997, plaintiff appealed the denial of his
request and cited three documents allegedly falling within the
scope of the request that had not been produced: (1) the August
17, 1981 Reviewer's concurrence in the August 4, 1981
recommendation that prosecution should be declined; (2) the
August 20, 1981 memorandum opinion by the Chief of the Criminal
Section, Stanley Krysa ("Krysa"), that prosecution should be
declined; and (3) an August 9, 1984 letter from the Assistant
Attorney General to Senator Orin Hatch regarding the Tax
Division's subsequent authorization to prosecute Reverend Moon
and Mr. Kamiyama. The August 9, 1984 letter to Senator Orin
Hatch ("Hatch letter") was not construed by the DOJ as falling
within plaintiffs March 7, 1997 FOIA request. Ferrel Decl. ¶ 3.
Plaintiff filed another FOIA request on May 4, 1998
for this letter. Id. On September 11, 1998, the Hatch letter
was released in part to plaintiff. Ferrel Supp. Decl. ¶ 5.
On January 9, 1998, plaintiff filed the instant action to
compel production of the withheld agency records. On July 23,
1998, plaintiff submitted an additional FOIA request to the DOJ
along with a power of attorney for Reverend Moon. Ferrel Supp.
Decl. ¶ 2. Because the July 23, 1998 FOIA request sought several
of the same documents at issue in this lawsuit and provided a
power of attorney for the Reverend Moon, the parties agreed to
stay this proceeding so that defendant could process the July
23, 1998 request in an attempt to narrow the issues for the
Court. Pursuant to a Consent Order entered by the Court on
September 10, 1998, this matter was stayed pending the DOJ's
processing of the new FOIA request.*fn2
On September 15, 1998, the DOJ responded to plaintiffs July
23, 1998 FOIA request. Ferrel Supp. Dec. ¶ 3. The DOJ released
portions of three documents which contain tax return information
relating to Reverend Moon; this information was previously
withheld pursuant to 26 U.S.C. § 1603 in conjunction with FOIA
Exemption 3, but was released as a result of the power of
attorney provided for Reverend Moon. Ferrel Supp. Dec. ¶ 4.
Therefore, the lawsuit is moot with respect to page 7 of
document 1, the released portions of pages 2 and 3 of document
2, and the released portions of pages 2 through 5 of document
II. APPLICABLE LEGAL STANDARD
A. The Freedom of Information Act
Plaintiff's claims arise under the FOIA, 5 U.S.C. § 552. The
FOIA provides a rule of general disclosure by government
agencies upon request. Mandatory disclosure enables the public
to gain access to government information so that it can review
the government's performance of its statutory duties, thereby
promoting governmental honesty. United States Dep't of Defense
v. Fed. Labor Relations Auth., 510 U.S. 487, 495-96, 114 S.Ct.
1006, 127 L.Ed.2d 325 (1994). Accordingly, district courts have
the authority to order the production of agency records where
the agency improperly withholds their records. United States
Dep't of Justice v. Tax Analysts, 492 U.S. 136, 141, 109 S.Ct.
2841, 106 L.Ed.2d 112 (1989); see also Katz v. Nat'l Archives &
Records Admin., 862 F. Supp. 476, 478 (D.C. 1994). However, an
agency may withhold agency records which fall under one of the
nine enumerated exemptions under the FOIA. See
5 U.S.C. § 552(b). The government has the burden of justifying its
withholding of documents pursuant to one or more of these
exemptions. Katz, 862 F. Supp. at 478.
The defendant is withholding two documents in full and five
documents in part, based on Exemption 3 in conjunction with
Fed.R.Crim.P. 6(e), Exemption 5 in conjunction with the attorney
work-product and ...