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.
B. Summary Judgment
Under the FOIA, a district court conducts de novo review to
determine whether the government may properly withhold the
requested records under any of FOIA's nine exemptions.
5 U.S.C. § 552(a)(4)(B) & (b)(1)-(9). To sustain its burden of
justifying nondisclosure of records under the FOIA, the
government must submit affidavits or declarations describing the
withheld material with reasonable specificity and the grounds
for exemption. PHE, Inc. v. Dept. of Justice, 983 F.2d 248,
250 (D.C.Cir. 1993). In order to withstand a motion for summary
judgment, the opposing party must set forth
specific facts showing that there is a genuine issue of material
fact in dispute. Fed.R.Civ.P. 56(e). Where the pleadings and
affidavits show that there is no genuine issue of fact and that
the moving party is entitled to judgment as a matter of law,
summary judgment is appropriate. See id.; see also Alyeska
Pipeline Serv. Co. v. Envtl. Protection Agency, 856 F.2d 309,
313-14 (D.C.Cir. 1988).
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 deliberative process privileges, and Exemption
7(C) of the FOIA.
A. Exemption 3
Portions of documents 1, 2, 6, and 10 were withheld from
release pursuant to FOIA Exemption 3 in conjunction with
Fed.R.Crim.P. 6(e). FOIA Exemption 3 provides that the
disclosure provisions of the FOIA do not apply to matters that
are specifically exempted from disclosure by statute. Rule 6(e)
of the Federal Rules of Criminal Procedure has been held by the
Court of Appeals for this Circuit to constitute a statute within
the meaning of FOIA Exemption 3. Fund for Constitutional Gov't
v. Nat'l Archives and Records Serv., 656 F.2d 856 (D.C.Cir.
1981). In Fund for Constitutional Gov't, the Court determined
that information which would reveal matters occurring before the
grand jury or elucidate the inner workings of the grand jury was
exempt from disclosure under the FOIA. Id. at 869-70. Both the
District Court and the Court of Appeals upheld the withholding
of information naming or identifying grand jury witnesses,
quoting or summarizing grand jury testimony, evaluating
testimony, discussing the scope, focus, and direction of the
grand jury investigations, and identifying documents considered
by the grand jury and conclusions reached as a result of the
grand jury investigations. Id. at 869.
In this case, the prosecution recommendations at issue refer
to or summarize testimony of grand jury witnesses or evidence
presented to the grand jury. Ferrel Decl. ¶ 12. Release of these
withheld materials would not only reveal the scope and direction
of the grand jury's investigation but would also identify and
describe specific evidence considered by the grand jury.*fn3
Id. Therefore, this material was properly withheld pursuant to
B. Exemption 5
FOIA Exemption 5 protects "interagency or intra-agency
memorandums or letters which would not be available by law to a
party . . . in litigation with the agency."
5 U.S.C. § 552(b)(5). This exemption has been construed to encompass
documents normally privileged in the civil discovery context.
NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149, 95 S.Ct.
1504, 44 L.Ed.2d 29 (1975). Thus, Exemption 5 has been held to
include documents which are protected by the deliberative
process privilege, Russell v. Dep't of the Air Force,
682 F.2d 1045, 1048 (D.C.Cir. 1982), as well as documents which
constitute attorney work-product. Coastal States Gas Corp. v.
Dep't of Energy, 617 F.2d 854, 865 (D.C.Cir. 1980).
The deliberative process privilege is designed to protect the
agency decision-making from injury. NLRB, 421 U.S. at 151, 95
S.Ct. 1504. This privilege protects not only particular
documents, but also the integrity of the deliberative process
itself.*fn4 Documents created by an agency as part of the
deliberative process which precedes its final decision are
exempt from disclosure under the FOIA. Russell, 682 F.2d at
1047-48. According to the United States Court of Appeals for the
District of Columbia:
Exemption (b)(5) shields from the mandatory
disclosure requirement of the FOIA the deliberative
process that precedes most decisions of government
agencies . . . Thus, the exemption protects not only
communications which are themselves deliberative in
nature, but all communications which, if revealed,
would expose to public view the deliberative process
of an agency.
Id.; see also Williams v. U.S. Dep't of Justice, 556 F. Supp. 63,
66 (D.C. 1982).
For a document to be covered by the deliberative process
privilege, two requirements must be satisfied. First, it must be
predecisional, that is, "antecedent to the adoption of agency
policy." Jordan v. Dep't of Justice, 591 F.2d 753, 774
(D.C.Cir. 1978) (en banc), overruled in part on other grounds,
Crooker v. Bureau of Alcohol, Tobacco, and Firearms,
670 F.2d 1051 (D.C.Cir. 1981) (en banc). To show that a document is
predecisional, the agency need not identify a specific final
agency decision; it is sufficient to establish "what
deliberative process is involved, and the role played by the
documents at issue in the course of that process." Coastal
States Gas Corp., 617 F.2d at 868.
Second, the document must be deliberative in nature, i.e.,
it must be "a direct part of the deliberative process in that it
makes recommendations or expresses opinions on legal or policy
matters." Vaughn v. Rosen, 523 F.2d 1136, 1143-44 (D.C.Cir.
1975). Deliberative documents frequently consist of "advisory
opinions, recommendations and deliberations comprising part of a
process by which governmental decisions and policies are
formulated." NLRB, 421 U.S. at 150, 95 S.Ct. 1504.
Documents covered by the deliberative process privilege are
often also protected by the attorney work-product privilege. The
attorney work-product privilege protects material gathered and
memoranda prepared by an attorney in anticipation of litigation.
Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451
(1947). The primary purpose of this privilege is to protect
against disclosure the mental impressions, conclusions,
opinions, or legal theories of an attorney or other
representative of a party concerning litigation. See
Fed.R.Civ.P. 26(b)(3). However, it is well established that the
privilege covers factual materials prepared in anticipation of
litigation, as well as mental impressions, conclusions,
opinions, and legal theories. Tax Analysts v. IRS,
117 F.3d 607, 620 (D.C.Cir. 1997).
A document may be "prepared in anticipation of litigation" so
as to qualify for the attorney work-product privilege even
without a case already docketed or where the agency is unable to
identify the specific claim to which the document relates.
Schiller v. NLRB, 964 F.2d 1205, 1208 (D.C.Cir. 1992) (the
privilege "extends to documents prepared in anticipation of
foreseeable litigation, even if no specific claim is
contemplated.") The primary purpose for the creation of the
document is the critical issue. Delaney, Migdail & Young,
Chartered v. IRS, 826 F.2d 124, 127 (D.C.Cir. 1987). Thus, the
privilege extends to documents that "address the types of legal
challenges likely to be mounted against a proposed program,
potential defenses available to the agency, and the likely
outcome," even where the identity of the prospective litigation
opponent is unknown. Id. at 127.
In this case, the defendant has withheld four categories of
materials on the basis of the deliberative process and attorney
work-product privileges: portions of the IRS and United States
Attorney prosecution recommendations (documents 1, 6, and 10);
most of the Tax Division prosecution memoranda (documents 2, 3,
and 4); parts of a memorandum of a meeting regarding whether the
prosecution decision should be reviewed by higher authority in
the Department of Justice (document 9), and portions of the
August 9, 1984 letter from Robert A. McConnell to Senator Orrin
G. Hatch. Ferrel Decl. ¶ 19; Third Ferrel Decl. ¶ 2 and Exhibit
A thereto. The Court will first address the validity of
withholding the prosecution memoranda and will then resolve the
issues raised by the Hatch letter.
1. The Prosecution Memoranda (Documents 1, 2, 3, 4, 6, 9,
Defendant claims that portions of documents 1, 2, 6, 9, and 10
and the entirety of documents 3 and 4 are protected by the
deliberative process privilege because they were created as part
of the give-and-take process as the decision of whether to
prosecute moved up the line of authority within the Department
of Justice. Def. Mot. at 17. Moreover, defendant contends that
these documents are also protected by the attorney work-product
privilege because they were prepared by attorneys to aid in
their determination of whether to authorize prosecution of the
targets of their criminal investigation. Id. at 19. Plaintiff
questions both whether the withheld portions of the documents
were pre-decisional and whether they were created in
anticipation of litigation.
The determining issue here is what constituted the final
decision in this case: the decision of the Chief of the Criminal
Section of the Tax Division, Krysa, to decline prosecution; or
the decision made by the Acting Deputy Assistant Attorney
General in the Tax Division, Andrews, authorizing prosecution.
If Andrews made the final decision, then all documents prepared
prior to the adoption of this decision are exempt from
disclosure, because they are prepared by people without final
decisionmaking authority, they were prepared prior to the
adoption of a final decision, and they are part of the
give-and-take of the decision-making process. On the other hand,
if Krysa made the final decision, then both his decision and
Andrews' subsequent decision would likely be outside the
protection of Exemption 5.
Plaintiff asserts that the prosecution memoranda at issue in
this case are final opinions analogous to the Appeals and Advice
Memoranda discussed in NLRB, 421 U.S. at 132, 95 S.Ct. 1504.
In NLRB, the
Court determined that memoranda in which the General Counsel
declined to file a complaint constituted the final opinions of
the General Counsel, because the General Counsel's decision to
dismiss the charge constituted a final disposition of the case
and no complaint would be filed. In this case, the prosecution
memoranda at issue were not the final disposition of the case,
because a decision was subsequently made to prosecute and the
prosecution did in fact occur. Thus, the rationale set forth
with respect to the memoranda constituting final opinions in
NLRB is inapplicable here.
Plaintiffs reliance on Taxation With Representation Fund v.
IRS, 646 F.2d 666 (D.C.Cir. 1981) is equally misplaced. That
case involved the policy-making function of an agency, not the
internal decision-making process of an agency regarding a
specific criminal prosecution. The General Counsel's Memoranda,
Technical Memoranda, and Actions on Decisions at issue in
Taxation With Representation were final opinions, final
decisions, and documents which explained these decisions, or
regulations which were already determined by the agency. Id.
at 681. Many of these documents were indexed, published
internally, and relied upon by the agency for future
decisions.*fn5 The prosecution memoranda at issue in this
case share none of these characteristics.
Here it is undisputed that both the IRS and the United States
Attorneys' Office had already recommended prosecution, while the
line attorney, reviewer, and Chief of the Criminal Section of
the Tax Division recommended against prosecution. Defendant
claims that the ultimate authority for making the final decision
regarding prosecution in this type of "exceptional case" was
vested in the office of the Assistant Attorney General of the
Tax Division, not the Chief of the Criminal Section of that
Division. Third Ferrel Decl. at ¶ 4 and Exhibit A thereto at 2
(August 9, 1984 letter to Senator Hatch). This case was
exceptional, according to defendant, because it was a high
profile case and because there was an initial conflict between
the IRS's and the United States Attorney's recommendations and
the recommendations of the Tax Division attorneys assigned to
the case. Third Ferrel Decl. ¶ 4. Tax Division Directive No. 37
¶ 4(a) and Tax Division Directive No. 15 ¶¶ 4(a) and (d)
authorize the Assistant Attorney General to make final decisions
in exceptional cases.
While the Court recognizes that Directive 37, which supersedes
Directive 15, permits the Criminal Chief to make a final
decision regarding prosecution in certain instances, the Court
notes that there is nothing in the delegation directives that
precludes the Chief of the Tax Division's Criminal Section from
forwarding sensitive cases to the Assistant Attorney General of
the Division for a final decision. Directive No. 37 merely
identifies circumstances in which the Assistant Attorney General
has authorized his subordinates to make decisions on behalf of
the agency; there is no prohibition against the Assistant
Attorney General making final decisions himself. Moreover, it is
well established that the head of an agency retains the
authority to make final decisions for the agency even if he or
she delegates the authority to make these decisions to his or
her subordinates. See, e.g., Knight v. United Land Ass'n,
142 U.S. 161, 176-82, 12 S.Ct. 258, 35 L.Ed. 974 (1891) ("As a
general proposition of administrative agency law, the head of an
administrative agency has the power to review and revise acts of
subordinates where, as here, the powers in question are
vested in the subordinate under the supervision and direction of
the superior or the power to administer is vested in the
superior."); see also Morrow v. Clayton, 326 F.2d 36, 45-46
(10th Cir. 1963) (holding that the Secretary of Agriculture and
his subordinates had the authority to review and change lower
subordinates' actions, despite the delegation of authority over
the subject matter to the lower subordinates). Thus, the fact
that a subordinate was authorized to take certain actions does
not deprive his superiors of their authority to make final
decisions for the agency in certain cases.*fn6 Therefore,
there is no basis for plaintiffs claim that the Assistant
Attorney General's prosecution decision could not have been the
"final decision" in this case because he lacked the authority to
make such a decision.
All evidence in the record supports the conclusion that the
Assistant Attorney General made the final decision regarding
prosecution in this case. See Decls. of Krysa and Ferrel. In
fact, the Hatch Letter explicitly states that the case was
forwarded by the Criminal Chief to the Deputy Assistant Attorney
General for a final decision. See Hatch Letter (Exhibit A to
Def. Reply) at 2-4. Plaintiff has offered no evidence to rebut
the contention that the Assistant Attorney General made the
final decision here. Accordingly, the Court finds that the final
agency decision in this case was made by Andrews, Acting Deputy
Assistant Attorney General for the Tax Division.*fn7
Since the Court has now determined that the final agency
decision in this case was that of the Acting Deputy Assistant
Attorney General, all documents prepared by the agency with
regard to this prosecution prior to the final decision of
Andrews to authorize the prosecution of Reverend Moon and Mr.
Kamiyama would be considered predecisional and allowing release
of these memoranda would violate the intent of the deliberative
process privilege. In Firestone Tire & Rubber Co. v. Dep't of
Justice, 81-2 U.S. Tax Cas. (CCH) ¶ 9670, 1981 WL 1870 (D.C.
1981) (holding that memoranda prepared by various levels of
staff lawyers within the Department of Justice, Tax Division and
by an Assistant United States Attorney were exempt from
disclosure under FOIA Exemption 5), this court explained:
Taking the documents as a whole, it is apparent that
their disclosure would unquestionably chill the kind
of frank prosecutorial evaluations of tax cases in
the future that these memoranda evince . . .
Prevention of such "demoralization" of the litigative
process is a critical function of the traditional
attorney workproduct privilege . . . Congress
intended that documents like these, which amount to
opinion work-product, be protected from disclosure
Id. at *2. Therefore, all decisions made prior to the Acting
Deputy Assistant Attorney General's decision in this case would
be covered by the deliberative process privilege.
Plaintiffs argument that these prosecution memoranda are not
subject to the deliberative process and attorney work-product
privileges because they recommend declining prosecution is
unsupported by fact or law. None of the prosecution memoranda at
issue here "preclude litigation," as plaintiff contends, nor do
constitute a body of secret law. The fact that these memoranda
must have been recommendations flowing up the chain of command
to the ultimate decision-maker as part of the agency's
decision-making process is supported by the fact that the Acting
Deputy Assistant Attorney General declined to follow these
recommendations and instead authorized prosecution. Moreover, it
is well established that documents created by an attorney in the
course of an investigation prior to a decision to litigate may
be protected by Exemption 5. See SafeCard Serv's, Inc. v.
Securities and Exchange Comm'n, 926 F.2d 1197, 1202 (D.C.Cir.
1991); see also A. Michael's Piano, Inc. v. Federal Trade
Comm'n, 18 F.3d 138, 146 (2d Cir. 1994). "Where an attorney
prepares a document in the course of an active investigation
focusing upon specific events and a specific possible violation
by a specific party, it has litigation sufficiently `in mind'
for that document to qualify as attorney work product."
SafeCard Serv's, Inc., 18 F.3d at 146. Similarly, in A
Michael's Piano, Inc., the court held that Exemption 5 applies
even when a staff attorney is considering or recommending
closing an investigation instead of litigating a case. Id. at
146. "Here the FTC investigation was not closed at the time the
documents at issue were created, and the fact that staff members
may have thought that litigation might not ever occur does not
take the documents out of the scope [of Exemption 5]." Id.
The prosecution memoranda at issue here were created as an
integral part of the Tax Division's investigation and its
decision-making process with regard to whether or not to
prosecute Reverend Moon and Mr. Kamiyama. These documents
contain recommendations of the IRS, the United States Attorney
and the Tax Division; review notes; and letters and memoranda
concerning the handling of the case. Ferrel Decl. ¶ 15. This
material is precisely the type of information universally held
to be attorney work-product in the context of civil
discovery.*fn8 Tax Analysts, 117 F.3d at 620 (attorney
workproduct privilege protects "any part" of memoranda prepared
in anticipation of litigation).
In addition, as explained in the Hatch letter, the concern
regarding release of
these deliberative documents in this case is great in light of
the fact that the preliminary recommendations of the attorneys
were based upon materials which were found by the courts to be
false*fn9 and which were submitted to the Tax Division for
the purpose of improperly influencing the agency's deliberative
process. Third Ferrel Decl., Exhibit A. Thus, not only do these
memoranda and the information contained therein fail to reflect
the final views of these attorneys based on the true facts,
these memoranda have no probative value to the public since they
are based on misrepresentations. For these reasons, these
documents and portions of documents were properly withheld under
the deliberative process and work-product privileges.*fn10
2. The Hatch Letter*fn11
Select portions of two paragraphs of the August 9, 1984 letter
from Robert A. McConnell to Senator Orin G. Hatch have been
redacted pursuant to Exemption 5, because defendant claims that
they contain information protected by the deliberative process
and attorney work-product privileges. Second Ferrel Decl. ¶ 5
and Exhibit 1 thereto.
Plaintiff claims that this letter is not covered by Exemption
5 because it was prepared after the Moon case had concluded.
However, the fact that the final decision to prosecute was made
and the litigation was concluded prior to the date of the Hatch
letter does not remove this information from Exemption 5 and the
attorney work-product privilege. Federal Trade Comm'n v.
Grolier, 462 U.S. 19, 103 S.Ct. 2209, 76 L.Ed.2d 387 (1983)
(holding attorney work-product was exempt from disclosure under
FOIA Exemption 5 even after the case was dismissed and
litigation terminated by the FTC). In fact, the Supreme Court
has held that "under Exemption 5, attorney work-product is
exempt from mandatory disclosure without regard to the status of
the litigation for which it was prepared." Id. at 28, 103
Plaintiff also argues that defendant has waived its
deliberative process or attorney work-product privileges with
respect to the information redacted from this letter, because
the information was
released to a third party Congressman. However, this Circuit has
explicitly held that a document otherwise covered by the
deliberative process privilege does not lose this status merely
because it was disclosed to a member of Congress without an
explicit warning of its confidential status. Murphy v. Dept. of
Army, et al., 613 F.2d 1151, 1159 (D.C.Cir. 1979); see also
Federal Bureau of Investigation v. Abramson, 456 U.S. 615, 102
S.Ct. 2054, 72 L.Ed.2d 376 (1982) (rejecting requestor's
argument that information protected by FOIA Exemption 7 is not
exempt when summarized in a new document not created for law
C. Exemption 7(C)
The defendant is withholding portions of document 1 pursuant
to FOIA subsection (b)(7)(C). Subsection (b)(7)(C) exempts from
disclosure records or information compiled for law enforcement
purposes to the extent that disclosure "could reasonably be
expected to constitute an unwarranted invasion of personal
To fall within the scope of FOIA Exemption 7(C), the records
must have been compiled for law enforcement purposes. See
Church of Scientology Int'l v. IRS, 995 F.2d 916 (9th Cir.
1993). To determine whether records were compiled for law
enforcement purposes, the Court must examine the agency itself
to determine whether the agency may exercise a law enforcement
function. Id. at 919. If the agency has the requisite law
enforcement mandate, the court will apply a balancing test to
determine if the public interest in disclosure outweighs the
individual privacy interests that would suffer from disclosure.
Id. at 919-20.
It is well established that the IRS has the requisite law
enforcement purpose to fall within the scope of FOIA Exemption
7(C). See, e.g. Lewis v. IRS, 823 F.2d 375, 379 (9th Cir.
1987); Church of Scientology, 995 F.2d at 919. Moreover, in
this case, the Court is satisfied that the privacy interests of
the grand jury witnesses greatly outweigh the public interest in
disclosure.*fn12 See U.S. Dept. of Justice v. Reporters
Committee for Freedom of the Press, 489 U.S. 749, 780, 109
S.Ct. 1468, 103 L.Ed.2d 774 (1989) (third party's request for
law enforcement records or information about a private citizen
can reasonably be expected to invade that citizen's privacy).
The information withheld pursuant to subsection (b)(7)(C)
consists of records created during the course of a grand jury
investigation to explore the allegations of possible violations
of federal law. Ferrel Decl. ¶ 20. Information was withheld
pertaining to the identities of certain grand jury witnesses.
Id. The privacy interests of these individuals clearly
outweighs any public interest in the information. Therefore,
this material was properly withheld pursuant to Exemption 7(C).
For the foregoing reasons, the Court will grant defendant's
Motion for Summary Judgment and this case will be dismissed with
prejudice. An order will accompany this opinion.