Opinion for the Court filed by Senior Circuit Judge DANAHER.
Dissenting opinion filed by Chief Judge BAZELON."
ON REHEARING EN BANC
DANAHER, Senior Circuit Judge:
Relying upon 5 U.S.C. § 552(a)(3) of the Freedom of Information Act, appellant in the district court sought to compel disclosure of certain materials
(b) This section shall not apply to matters that are
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(7) investigatory files compiled for law enforcement purposes . . . .
The district court without opinion granted the Department's motion to dismiss.
President Kennedy was pronounced dead at 1:00 p. m. on Friday, November 22, 1963. That day, at 2:38 p. m., Lyndon B. Johnson was sworn in as the thirty-sixth President of the United States and immediately by plane left Texas for Washington.
Director Hoover testified before the Warren Commission that
Appellant has argued on brief that the FBI materials could not have been compiled for law enforcement purposes since, in 1963 the State of Texas but not United States "had jurisdiction over the crime."
Clearly, in the day and time of it all, the President contemplated collaboration with Texas authorities by agents of the Secret Service and of the Federal Bureau of Investigation looking to the early apprehension and ultimately the conviction of whoever murdered President Kennedy. It was speedily developed that the rifle from which the assassin's bullets had been fired had been shipped to one Lee Harvey Oswald. The latter was placed under arrest and charged with the perpetration of the crime. Two days later, as an investigation of massive proportions got under way, Oswald, then in the custody of Dallas Police, was fatally shot by one Jack Ruby.
Director Hoover further testified before the Warren Commission
To glean some understanding of the magnitude of the investigatory organization which was speedily activated, we may turn to the Foreword of the Warren Commission Report, xii, from which we quote:
We deem it demonstrated beyond peradventure that the Department's files: (1) were investigatory in nature; and (2) were compiled for law enforcement purposes.
While the statute speaks for itself in the respect under consideration, we may note that the legislative history additionally explains:
There can be no question that 5 U.S.C. § 552 had as its principal purpose that there was to be disclosure to the public of the manner in which the Government conducts its business. Congress additionally was concerned with the dilemma in which the public finds itself when forced to "litigate with agencies on the basis of secret laws or incomplete information."
We are not here speaking of trade secrets, or personnel and medical files, or patent information or internal revenue returns, or yet other material which, by statute (see, e. g., 41 CFR § 105-60.604, 1972), had been specifically exempted from disclosure. We are not treating of geological information or matter required by Executive order to be kept secret. We are not discussing any problem except that of compelled disclosure of Federal Bureau of Investigation investigatory files
This appellant, in his letter of May 16, 1970 attached as an exhibit to his complaint, submitted to the Department of Justice the following:
Appellant then transmitted the Department's form entitled "Request For Access To Official Record Under 5 U.S. C. 552(a) and 28 CFR Part 16," describing the material set forth in our footnote 3, supra. A further exhibit attached to the appellant's complaint discloses that the Department under date of June 12, 1970, wrote:
Our problem thus stems from what follows under the Freedom of Information Act after the Attorney General's exercise of the decisional process devolving upon him.
The Department of Justice, headed by the Attorney General, 28 U.S.C. § 503, includes the Federal Bureau of Investigation, 28 U.S.C. § 531. The Attorney General is directly charged under 28 U. S.C. § 534 with the duty to acquire, collect, classify and preserve identification, criminal identification, crime and other records, and to exchange such records with and for the official use of authorized officials, not only of the federal government, but of the States and cities. So it was that the Bureau collaborated with the Dallas police.
Obviously, the statutory scheme of organization, as above referred to, calls for the exercise of discretion by the Attorney General respecting execution of the duties devolving upon him, and through him, upon the Federal Bureau of Investigation. We have no doubt whatever that Congress was fully alive to the problem where investigatory files of the FBI were involved.
Congress knows full well that in the first instance an Attorney General in myriad situations must exercise the discretion conferred upon him by law. He must evaluate the evidence necessary to an informed judgment. He must decide whether to prosecute or not. He must decide whom to prosecute. He must decide when to prosecute. Functions in this area belong to the Executive under the Constitution, Article II, Sections 1 and 3, and, as here, specifically to the Attorney General under 28 U.S.C. § 509. Consider problems such as we find were assessed in Pugach v. Klein, 193 F.Supp. 630, 634-635 (S.D. N.Y.1961), and Moses v. Kennedy, 219 F.Supp. 762, 765 (1963), aff'd sub nom., Moses v. Katzenbach, 119 U.S.App.D.C. 352, 342 F.2d 931 (1965). As Judge Wright there said
And see Newman v. United States, 127 U.S.App.D.C. 263, 265, 382 F.2d 479, 481 (opinion by present Chief Justice Burger, 1967). The Attorney General's prosecutorial discretion is broad, indeed, and ordinarily at least, is not subject to judicial review. Inmates of Attica Correctional Facility v. Rockefeller, 477 F.2d 375, 380 (2 Cir. 1973); Powell v. Katzenbach, 123 U.S.App.D.C. 250, 359 F.2d 234 (D.C.Cir. 1965), cert. denied, 384 U.S. 906, 86 S.Ct. 1341, 16 L.Ed.2d 349 (1966); Touhy v. Ragen, 340 U.S. 462, 467-469, 71 S.Ct. 416, 95 L.Ed. 417 (1951); cf. Adams v. Richardson, 156 U.S.App.D.C. 267, 480 F.2d 1159 (en banc, June 12, 1973); but we suggested that immunity respecting the exercise of discretion may well be unavailable were the Department to be under investigation by a court or grand jury when fraud or corruption might be involved, Committee for Nuclear Responsibility, Inc. v. Seaborg, 149 U.S.App.D.C. 385, 391, 463 F.2d 788, 794 (1971). But this much is certain, (5 U.S.C. § 301 as part of Pub.L. 89-554, 80 Stat. 379), the Attorney
Congress surely realized that disclosure was not to be required in certain prescribed classifications. For example, section 552(b) provided that the section as a whole was not to apply to matters that are (3) "specifically exempted from disclosure by statute." See, as illustrative, the statutes identified in 41 CFR § 105-60.604 (1972).
Again, section 552(b)(1) exempted from disclosure matters "specifically required by Executive order to be kept secret in the interest of the national defense or foreign policy." That very language gave rise to an issue which this court first considered, followed by the Supreme Court's definitive pronouncements as to the steps to be taken respecting disclosure of materials coming within section 552(b)(5). Ruling that we misapplied that section,
Lest there be any doubt as to the Supreme Court's teaching respecting Exemption (b)(1), its opinion, 410 U.S. at 84, 93 S.Ct. at 834, emphasized:
There was to be no room for challenge, no "balancing" function, no in camera inspection. Rather, upon the basis of the "showing and in such circumstances, petitioners had met their burden of demonstrating that the documents were entitled to protection under Exemption 1, and the duty of the District Court under § 552(a)(3) was therefore at an end." EPA v. Mink, 410 U.S. at 84, 93 S.Ct. at 835.
In that very case, strikingly different treatment was prescribed even as to executive materials claimed to be immune from disclosure under Exemption 5. EPA v. Mink, 410 U.S. at 85 et seq., 93 S.Ct. 827. The applicability of Exemption 7 no less will turn ultimately upon a determination by the district court
Granted that the Attorney General may designate certain investigatory files as having been compiled for law enforcement purposes, his ipse dixit does not finalize the matter, for there remains the judicial function of determining whether that classification be proper. Where the district court can conclude that the Attorney General's designation and classification are correct, the Freedom of Information Act requires no more. Here the record overwhelmingly demonstrates how and under what circumstances the files were compiled and that indeed they were "investigatory files compiled for law enforcement purposes." When the District Judge made that determination, he correctly perceived that his duty in achieving the will
Thus he ruled that there was no claim upon which relief could be granted, that there was no issue as to any material fact, and that the Department was entitled to judgment as a matter of law.
BAZELON, Chief Judge, dissenting:
In Environmental Protection Agency v. Mink,
In this case, appellant Weisberg seeks the following information:
Thus, we deal in this case, not with Section 552(b)(1), but with Section 552(b)(7). The latter provision exempts from disclosure "matters that are . . . investigatory files compiled for law enforcement purposes except to the extent available by law to a party other than an agency." I have no doubt that, as Judge Danaher's majority opinion concludes, the information sought in this case is lodged in a file originally compiled for law enforcement purposes. I cannot, however, agree with the majority that this fact automatically brings the information within the ambit of Section 552(b)(7). There remains the question whether such information is to be considered as resting solely within an "investigative file" when the results of the spectrographic tests have been made public in the Warren Commission report and when there is no indication that the Government contemplates use of the information for law enforcement purposes.
The reasons that support my position are fully stated in Judge Frank Kaufman's
The above was, of course, written in the context of the facts of this case. In most cases perhaps, the Government may satisfy its burden of proof simply by establishing that the information sought was compiled for investigatory purposes and rests in an investigatory file, none of the contents of which have ever been made public. But that is not the case here.
I continue to agree with Judge Kaufman that the purpose of the Act should not be defeated if there is available a judicial technique for advancing it and at the same time ensuring that no harm comes to the interests Congress intended to protect. In camera inspection, as required by the remand order of the withdrawn opinion, is such a technique. The fact that, in Mink, the Supreme Court determined that the language and legislative history of the Section (b)(1) exemption did not permit the use of in camera inspection does not mean that the technique is unsuitable in every case involving the Section (b)(7) exemption.
Nothing in the foregoing cases runs counter to the Supreme Court's treatment in EPA v. Mink, 410 U.S. 73, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973).
Cf. Public Law 88-245, the Appropriations Act of 1964, providing funds for the Federal Bureau of Investigation for the "protection of the person of the President of the United States; acquisition . . . and preservation of identification and other records and their exchange with, and for the official use of, the duly authorized officials . . . of States . . ., such exchange to be subject to cancellation if dissemination is made outside the receiving departments." . . . of States . . ., such exchange to be subject to cancellation if dissemination is made outside the receiving departments."
Our appellant had sought to test the spectrographic analyses of materials (listed in our n. 3, supra) not unlike certain items listed in note 1 of Nichols, supra. There Nichols had sought to make his own scientific analysis of the described material, which the court found to be specifically exempted from disclosure by statute, pointing to § 552(b)(3). The opinion cited Pub.L. 89-318, 79 Stat. 1185, November 2, 1965, where the Attorney General acting in "the national interest" designated evidence considered by the Warren Commission to "be preserved." Such evidence pursuant to § 4 of that Act was to be placed under the jurisdiction of the Administrator of General Services for preservation under such rules and regulations as the Administrator might prescribe. (See generally, 41 CFR § 105-60.101, §§ 105-60.601, 60.602 and 60.604; and Vol. 11, Part 17, 23,002 Congressional Record, 89th Cong. 1st Sess., Sept. 7, 1965).
The court found — without more — that the rules and regulations are clearly within the grant of authority of Pub.L. 89-318, and that the materials sought by Nichols came within the exemption of § 552(b)(3).
[Special "Regulations Concerning Procedures for Reference Service on Warren Commission and Related Items of Evidence," National Archives Record Group 272, provide in subsection 5, in part, that materials which have been subjected to techniques of detailed scientific examination "will be withheld from researchers as a means of protecting them from possible physical damage or alteration and in order to preserve their evidentiary integrity in the event of any further official investigation of the assassination of President John F. Kennedy."]
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"For the great majority of different records, the public as a whole has a right to know what its Government is doing" (emphasis supplied), Senate Report at 5-6. And see also the "conclusion" in House Report at 12: "A democratic society requires an informed, intelligent electorate, and the intelligence of the electorate varies as the quantity and quality of its information varies. A danger signal to our democratic society in the United States is the fact that such a political truism needs repeating. * * *"