LASKER, District Judge.
This suit grows out of plaintiffs' efforts to secure documents and records in the possession of the Securities and Exchange Commission ("SEC") for use by plaintiffs in a pending civil action against Occidental Petroleum Corporation and its officers. The papers are in the custody of the SEC as a result of an investigation of Occidental made by it which had been settled by a consent decree enjoining violations of § 10(b)
Plaintiffs seek, under provisions of the Freedom of Information Act, 5 U.S.C. § 552, to compel the SEC to disclose to them the information secured in the SEC investigation of Occidental.
Two motions are before the court: Plaintiffs move for an injunction under the Act compelling defendants to disclose.
SUMMARY JUDGMENT AND THE EXEMPTION UNDER § 552(b) (7)
Section 552(a) requires government agencies to disclose upon request broad categories of information in their files. Section 552(b) lists nine exemptions from the obligation to disclose.
Section 552(b) (7) reads as follows:
Plaintiffs contend that neither the plain meaning of the exemption's language nor its legislative history supports the SEC position. Further, they argue that, since the investigation was terminated in a consent decree on March 5, 1971, and the SEC has failed to establish that any further investigation will occur, the Commission has not met the burden of demonstrating that exemption (7) is now applicable.
The courts have divided on the question whether § 552(b) (7) provides a blanket exemption for all investigatory files. Cowles Communications v. Department of Justice, 325 F.Supp. 726 (N.D.Cal.D.C. 1971), held that investigatory files "need not be produced whether [enforcement] proceedings be contemplated or not." However, where, as here, the investigation by the agency has been completed, the exemption of § 552(b) (7) has been held not to apply.
As in Cooney v. Sun Shipping & Drydock Co., 288 F.Supp. 708, 711 (E.D. Pa.1968), the question is presented "whether files once classified `investigatory files' may forever after retain that characterization so as to be immune from
This construction of the "investigatory files" exemption finds support in the language of § 552, which explicitly provides (§ 552(c)) that "[t]his section does not authorize withholding of information or limit the availability of records to the public, except as specifically stated in this section." It protects adequately the government's interest in maintaining its files undisclosed for so long as it is actually or reasonably likely to be involved in an investigation for law enforcement purposes, and at the same time carries out the policy of the Act "to increase significantly the public availability of agency records." LaMorte v. Mansfield, 438 F.2d 448, 451 (2d Cir. 1971).
THE (b) (3), (4) and (5) EXEMPTIONS
Having concluded that defendants cannot rely upon § 552(b) (7), it remains to be determined whether or not any of the files sought are exempt under § 552(b) (3), (4) or (5).
Section 552(b) (4) exempts from disclosure "trade secrets and commercial or financial information obtained from a person and privileged or confidential"; section 552(b) (5) exempts "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency." As the record stands, it is impossible to determine whether and to what extent the files contain material covered by either the exemptions of (b) (4) or (5). Certainly it is reasonable to assume, however, that the files contain some information which may fall within the various categories enumerated in (b) (4), and the provisions of (b) (5) may apply to some extent as well. Such a determination must be made in camera in the first instance.
Section 552(a) (3) of the Act requires the court to expedite the determination of such questions. Since the files sought here are voluminous, containing 25 individual transcripts numbering 2100 pages and some 5000 pages of other documents,
There remains for discussion the Commission's claim that the "(b) (3)" exemption applies. That clause provides that disclosure need not be made as to materials "specifically exempted from disclosure by statute." The Commission claims that, since 18 U.S.C. § 1905 provides inter alia that an officer of the United States is liable criminally if he discloses investigatory material where "not authorized by law," the material here sought is exempt under § 552(b) (3).
But this circular reasoning adds nothing to the defendants' armory. 18 U.S.C. § 1905 does not establish an exemption from the Freedom of Information
Defendants' motion for summary judgment is denied. A decision on plaintiffs' motion for an injunction is deferred pending the receipt of the report of the special master and the court's action thereon.
Submit order, including provisions for reference to the special master.
Although plaintiffs' request for SEC records is broad, the SEC's objections to it clearly indicate that the SEC knows the records being sought. "[T]his is all that the identifiability requirement contemplates. The fact that to find the material would be a difficult or time-consuming task is of no importance in making this determination; an agency may make such charges for this work as permitted by the statute. Wellford v. Hardin, 315 F.Supp. 175, 177 (D.Md.1970), aff'd 444 F.2d 21 (4th Cir., 1971).
The clause is specific and when viewed in the context of the right of "any person" under § 552(a) to obtain information ought not be narrowly construed. Any person may obtain material from investigatory files to the extent that the rules of discovery would make them available. See Davis, The Information Act: A Preliminary Analysis," 34 U.Chi.L. Rev. 761, 799-800 (1966); Attorney-General's Memorandum on the Public Information Section of the Administrative Procedure Act, at 38 (1967).