Fund for Constitutional Government v. National Archives and Records Service

Citations: 656 F.2d 856; 211 U.S. App. D.C. 267Docket: 79-2047, 79-2084

Court: Court of Appeals for the D.C. Circuit; July 31, 1981; Federal Appellate Court

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The case involves the Fund for Constitutional Government (FCG) appealing against the National Archives and Records Service regarding the denial of access to approximately 500,000 pages of documents from the Watergate Special Prosecution Force (WSPF). FCG's initial FOIA request, made in November 1975, sought all non-exempt records of investigations from May 25, 1973, to October 15, 1975. After WSPF denied the broad request, FCG submitted a more specific request regarding several key investigations. WSPF released a few documents but withheld the majority, citing FOIA exemptions, particularly Exemption 7(C) related to personal privacy and grand jury secrecy under Fed. R. Crim. P. 6(e). 

FCG subsequently filed a lawsuit in September 1976, seeking review of the withheld documents and requested a Vaughn index to clarify the basis for withholding. The district court initially granted WSPF a stay in proceedings. In April 1977, FCG proposed a more efficient review process focusing on the closing memoranda of the six investigations, but WSPF was eventually terminated, and the documents were transferred to the National Archives.

The appellate court affirmed the district court's application of FOIA exemptions but remanded the case for reconsideration of attorney fees, noting that the litigation had significantly influenced the release of documents. The court also addressed the definition of "substantially prevail" concerning attorney fee awards under FOIA.

NARS completed its review of closing memoranda for the Townhouse, I.T.T., and Hughes-Rebozo files, resulting in the release of previously unavailable information. However, certain information remained withheld, prompting NARS to file affidavits, Vaughn indices, and redacted documents with the district court. On March 3, 1978, NARS moved for summary judgment, which the district court treated as a motion for partial summary judgment. The court ordered the release of specific documents to FCG but upheld exemptions for the majority of the information. It later entered final judgment while retaining jurisdiction for compliance monitoring.

NARS and the district court argued that much of the withheld information was exempt from disclosure under FOIA Exemption 7(C), which protects investigatory records from mandatory disclosure to prevent unwarranted invasions of personal privacy. FCG conceded that the information was part of law enforcement investigatory records but contested the application of Exemption 7(C). The court recognized three categories of information exempt under this provision: 1) details reflecting investigations of allegations against unindicted individuals, 2) facts about non-target individuals, and 3) the identities of confidential sources. While FOIA favors disclosure, Congress deemed it necessary to balance public access against personal privacy interests. FCG argued that the district court inadequately balanced these interests, asserting that the information pertained to high-level officials with minimal privacy interests and that the public interest in disclosure was underestimated.

Exemptions 6 and 7 of the Freedom of Information Act (FOIA) are differentiated by two main points. First, Exemption 6 protects against 'a clearly unwarranted invasion of personal privacy,' while Exemption 7(C) protects against an 'unwarranted invasion of personal privacy,' with the omission of 'clearly' in Exemption 7(C) reflecting an intent to offer broader privacy protections as established in the 1974 amendments. Second, Exemption 6 is limited to information in personnel, medical, or similar files, whereas Exemption 7 applies to information in investigatory records compiled for law enforcement. Exemption 6 is restricted to intimate personal information, while Exemption 7 does not impose similar limitations, allowing for broader application regarding investigatory files. The distinction in breadth between these exemptions is further supported by the potential for an individual’s name in investigatory files to provoke speculation and rumor, unlike names in personnel files. The text notes that information indicating an individual was investigated for suspected criminal activity is appropriate for Exemption 7(C). The district court must evaluate whether it properly balanced public interest in disclosure against the individual's privacy rights, particularly regarding the prosecutor's discretion in criminal prosecutions, which is generally not subject to public scrutiny.

The decision not to prosecute an individual does not indicate the prosecutor's view on their guilt or innocence. Prosecution carries consequences that extend beyond the risk of conviction, particularly when the individual or crime is widely publicized, often leading to reputational damage that persists even after a jury's verdict. Choosing not to prosecute protects individuals who have been investigated but not charged from significant public intrusion into their lives. In the case of Baez v. Department of Justice, the court highlighted the privacy invasion that would occur if the identities of uncharged individuals were disclosed, particularly in the context of FBI investigations. 

The appellant argues that public figures, such as high-ranking government or corporate officials, should have diminished privacy interests. However, prior court rulings have maintained that government officials do not forfeit their privacy rights under the Freedom of Information Act (FOIA). While there may be circumstances where a public figure's status could lessen their privacy protections, this case does not exemplify those conditions. The court noted that the individuals in question were candidates for federal office, which could reduce their privacy interests concerning campaign-related information. However, the potential intrusion from disclosing that an individual has been investigated for criminal activity remains significant, particularly given the attention such investigations garner. Revealing such information could unfairly compel these individuals to defend themselves publicly, outside the protections typically available in criminal proceedings.

The district court appropriately weighted the public interest in disclosure against the privacy interests of individuals involved in the Watergate scandal. It concluded that the public interest did not outweigh significant privacy concerns, noting that thorough assessments by all three branches of government had already occurred and that no further prosecutions were anticipated. This perspective aligns with the endorsement that legitimate privacy interests cannot be overridden by mere public curiosity. The court did not establish a blanket rule that information on uncharged individuals is always exempt under Exemption 7(C), maintaining that each case requires a careful balance of privacy and public interest. It emphasized that the release of such information constitutes a serious intrusion on privacy rights, warranting disclosure only under exceptional circumstances, which were not present in this instance.

Regarding FOIA Exemption 3, the district court found that certain information was properly withheld based on a statutory exemption, specifically referencing Fed. R. Crim. P. 6(e), which restricts the disclosure of grand jury materials. The appellant argued that the district court incorrectly relied on Rule 6(e) since it is not a statute for Exemption 3 purposes, citing a previous case. However, the court clarified that Rule 6(e) was enacted by Congress, distinguishing it from the previously cited rule, and thus qualifies for Exemption 3. It noted that Congress has the authority to amend or suspend these rules, and the adoption of Rule 6(e) followed a proper legislative process involving congressional oversight.

Congress enacted a modified version of Rule 6(e), establishing it as a statute that governs the disclosure of grand jury information. Rule 6(e) clearly states that disclosure is the exception, not the rule, and such information can only be disclosed under specific conditions, primarily through a court order. This rule is deemed absolute for the purposes of FOIA Exemption 3, which applies to information withheld under its provisions. 

The legislative history indicates that Rule 6(e) aims to maintain the secrecy of grand jury proceedings, allowing for limited exceptions, such as disclosure to government attorneys or pursuant to a court order. The only relevant exception for this case would be disclosure directed by a court in relation to a judicial proceeding. However, this exception does not apply when the proceeding aims specifically to obtain disclosure. Thus, the case is governed by the general rule of secrecy.

The court's inquiry is not about balancing secrecy against disclosure interests but rather whether the requested disclosure would reveal matters occurring before the grand jury. The district court correctly applied the rule to the information at hand. The Supreme Court has reiterated the rationale for maintaining grand jury secrecy, which includes encouraging witness participation, protecting witnesses from retribution, preventing potential flight or influence by those facing indictment, and shielding exonerated individuals from public scrutiny. The secrecy extends beyond direct transcript disclosure to include any information that might reveal witness identities, testimony substance, investigative strategies, or juror deliberations.

The district court upheld the application of Exemption 3, which protects grand jury information, regarding the following categories: names or identities of grand jury witnesses, summaries or evaluations of grand jury testimony, discussions about the investigations' scope and direction, and documents reviewed by the grand jury. This information is shielded from disclosure under FOIA Exemption 3 and Fed. R. Crim. P. 6(e), as revealing it would expose the inner workings of the grand jury process. While the names of potential witnesses and documents subpoenaed are clearly exempt, the potential disclosure of other related documents could also inadvertently reveal investigative strategies. The appellant’s request pertains to information tied directly to grand jury investigations, not for independent purposes, thus reinforcing the exemption from disclosure.

Regarding attorney's fees, the FOIA allows for the assessment of reasonable fees against the United States if the complainant has "substantially prevailed." The district court confirmed that eligibility does not hinge solely on a court order for disclosure but on whether the plaintiff has substantially prevailed under 5 U.S.C. 552(a)(4)(E). The appellant argued for fees based on voluntary document releases following litigation, but the court noted that those releases occurred largely after their transfer to the National Archives, where they underwent proper FOIA processing. The court concluded that the lawsuit did not significantly prompt the release of documents, leading to a determination that the appellant was not entitled to attorney's fees. This finding of fact, deemed not clearly erroneous, considered that the appellant initiated the lawsuit after learning of minimal disclosures from WSPF.

The case involves an appellant who demonstrated patience and cooperation with the administrative process under FOIA until it became clear that their request would not be fulfilled. The appellant faced significant resistance to disclosure and ultimately chose to initiate litigation, as the administrative entity, WSPF, was unable to adequately process the request due to limited staff and operational winding down. Although the appellant eventually received the requested documents after litigation began, this did not negate their status as having substantially prevailed for attorney fee purposes. The court emphasized the necessity of the lawsuit in obtaining the information, noting that the appellant faced an outright denial of their request before filing. The initiation of litigation was deemed a reasonable choice given the circumstances, establishing a causal link between the lawsuit and the eventual release of documents. The court concluded that the appellant is eligible for attorney fees, although the determination of whether to actually award fees remains with the district court, which did not address this issue after finding that the appellant had not substantially prevailed.

The Court has consistently delegated the initial determination of certain questions to the district court, as illustrated in various cases. On remand, the district court must assess FCG's entitlement to attorney fees. Exemption 7(C) of the FOIA protects the identities of individuals investigated for suspected criminal activity who are not charged or indicted. Although high-ranking officials may have reduced privacy interests, this does not favor disclosure in this instance. Additionally, Fed. R. Crim. P. 6(e) qualifies as an exempting statute under FOIA Exemption 3, pertaining to information before a grand jury, which the district court correctly deemed exempt from disclosure. FCG has "substantially prevailed" in this case, making it eligible for attorney fees, which the district court should evaluate upon remand. The opinion affirms in part, reverses in part, and remands for further proceedings. The discussion of Exemption 5 is deemed unnecessary as it pertains to deletions that are also covered by other exemptions. The district court clarified that certain information not exempt under Exemption 7(C) relies solely on Exemption 5, but the appellant's challenges do not address these specific deletions. The document also references the process for determining "exceptional circumstances" for FOIA requests when an agency faces overwhelming demand and is actively working to respond. Finally, while the decision resolves issues regarding closing memoranda, it does not fully conclude the case regarding underlying documents.

NARS has not appealed the district court's decision to release specific information. FCG argued that the closing memoranda for the I.T.T. and Hughes-Rebozo files were not considered investigative records since they were created post-investigation, but this argument was rejected by the district court and has not been pursued on appeal. The district court delineated categories of information exempt from disclosure under 5 U.S.C. § 552(b)(7)(C), which include allegations of wrongdoing by non-prosecuted individuals, evaluations of demeanor and credibility of witnesses, identification of evidence against unprosecuted individuals, confidential source identification, medical or emotional condition disclosures, prosecution decision discussions, information on individuals not linked to the investigation, summaries of statements related to unprosecuted individuals, and defense attorney negotiations reflecting client culpability. Additionally, the court upheld the withholding of information revealing confidential source identities under Exemption 7(D). FOIA Exemption 6 protects personnel and medical files from disclosure if it would lead to an unwarranted invasion of personal privacy. The 1974 amendments to FOIA aimed to clarify limitations on the withholding of investigatory files compiled for law enforcement, specifically to safeguard the privacy of all individuals mentioned in those files, not just the subjects of investigations.

Category E information meets the threshold for Exemption 6, while deletions in category D were upheld under Exemption 7(C) to protect the identities of confidential sources, also supported by Exemption 7(D). The necessity to evaluate additional withholding under Exemption 7(C) is negated by this determination. Several case precedents demonstrate the application of Exemption 7(C) for source protection, including *Maroscia v. Levi* and *Church of Scientology v. Dep't of State*. The document also references the American Bar Association's standards, indicating that prosecutors may decline to prosecute based on factors such as reasonable doubt of guilt, the extent of harm, and victim cooperation. The district court noted the importance of maintaining prosecutorial discretion free from public scrutiny, particularly concerning FOIA Exemption 5, which is deemed appropriate for the context of the Special Prosecutor's Office. Notably, in *Ferguson v. Kelley*, the court initially ruled against withholding FBI agents' names but later recognized their personal privacy under Exemption 7(C). Additionally, the *Congressional News Syndicate v. Dep't of Justice* case highlighted the transparency mandated by the Federal Corrupt Practices Act, contrasting it with the current situation where such disclosure is not applicable.

The district court mandated the release of information in the current files that aligns with the Congressional News Syndicate case, provided it is not otherwise exempt. While the court does not revive the government's "aura of Watergate" argument, it acknowledges that public interest in an investigation is a significant factor in evaluating Exemption 7(C). The decision in the Congressional News Syndicate case has not been directly reviewed but has received implicit approval in other rulings. 

Rule 6 of the Federal Rules of Criminal Procedure establishes a general rule of secrecy for grand jury proceedings, prohibiting disclosures by individuals involved, except under specific conditions. Exceptions include disclosures to government attorneys and necessary personnel to enforce federal law, as well as disclosures permitted by a court in connection with judicial proceedings or at a defendant's request regarding potential grounds for dismissing an indictment. 

Exemption 3 applies only to materials exempt from disclosure by statute, and the Federal Rules of Civil Procedure do not meet this criterion as they are established by the Supreme Court under delegated rulemaking authority, rather than being formally enacted by Congress.

The discretion of district courts in issuing Rule 26(c) protective orders was noted, with the court emphasizing that the existing guidance under the rule did not sufficiently meet the requirements of Exemption 3 for FOIA disclosures. A Rule 26(c) order is designed to prevent injury in specific cases between particular parties, which does not appropriately address the distinct issue of FOIA disclosure. This contrasts with the treatment of grand jury information under Fed. R. Crim. P. 6(e), which is considered exempt from FOIA disclosure, as supported by consistent case law. The statutory basis for civil litigation rules, under 28 U.S.C. 2072, emphasizes that such rules must not alter substantive rights. Amendments to Rule 6(e) in 1979 did not change its core provisions, which were clarified by Congress in 1977 to address access to grand jury information. The standard for disclosing grand jury information requires a showing of necessity to prevent injustice in another proceeding, with a greater need for disclosure than for secrecy. The age of grand jury proceedings is not relevant to FOIA considerations.

The general rule regarding the secrecy of grand jury proceedings does not make exceptions for older cases, and relevance to disclosure under Rule 6(e)(3)(C)(i) does not apply here. Disclosure risks not only the immediate grand jury but also future grand jury operations, as potential witnesses may hesitate to testify if they fear their statements could be revealed. Therefore, the interest in maintaining grand jury secrecy remains significant even after the grand jury has concluded its work. Rule 6(e) prohibits disclosure solely to individuals linked to the grand jury investigation, which may not apply to the circumstances in the Dresser case. The processing of a request by NARS began nine months after FCG initiated its action, and a year and a half after FCG's initial request. In Crooker, the court ruled that the government’s failure to respond to repeated inquiries about a document release warranted an award of attorney's fees, highlighting that negligence in response does not negate the effect of a refusal. In Scientology, the court held that while the release of documents was influenced by new guidelines, the initiation of litigation was the direct cause for their eventual disclosure. The court has identified four factors for district courts to consider when deciding on attorney fees for successful FOIA plaintiffs: the public benefit derived from the case, any commercial benefit to the plaintiff, the nature of the plaintiff's interest in the records, and the agency's legal basis for withholding the records.