TAMM, Circuit Judge:
Honorable Les Aspin
I. The Facts
In 1969 Mr. Ronald Ridenhour, a former Army enlisted man, wrote to the Secretary of Defense and others inquiring into alleged atrocities committed by elements of the 23rd Army Division during the period 16-19 March 1968. On November 26, 1969, as a result of Mr. Ridenhour's communication, Stanley R. Resor, then Secretary of the Army, and General William C. Westmoreland, then United States Army Chief of Staff, directed Lieutenant General William R. Peers to begin an investigation to determine:
Affidavits submitted to the trial court reveal that the focus of the investigation was to be "primarily directed toward discovering and toward obtaining evidence of possible offenses under the Uniform Code of Military Justice . . . with a view toward prosecution if warranted."
The Peers Commission Report, here sought by appellant, is the end product of these investigations. The report, submitted March 14, 1970, consists of forty-two bound books which are arranged into four volumes. Volume I, comprising twelve chapters and three annexes, contains the actual Report of Investigation. Volume II consists of thirty-three books of verbatim transcripts of witnesses' testimony. Volume III is comprised of seven books of documentary evidence (e.g. reports, maps, photographs etc.). Volume IV contains statements received by Army criminal investigators as part of the Peers Commission investigation or other criminal investigations.
The Army, relying upon evidence compiled by General Peers and contained in his report, brought charges against fifteen officers for violations of the Uniform Code of Military Justice.
Appellant, on February 18, 1972, wrote to then Secretary of Defense Melvin Laird, requesting public release of the entire report pursuant to FOIA. On March 1, 1972, Mr. Robert W. Berry, General Counsel of the Army, replied stating that it was the opinion of the Army that release to the public would not be possible at that time. Appellant then commenced this action, as a private citizen,
II. The Trial Court Ruling
The trial court, in granting appellees' motion for summary judgment, found that "[t]he documents sought are investigatory files compiled for law enforcement purposes and are exempt from disclosure because of specific exemptions provided in the Freedom of Information Act. 5 U.S.C. § 552(b)(7)."
The trial court also found that Volume I of the Peers Commission Report enjoyed additional exemption from disclosure as an intra-agency memorandum within the meaning of 5 U.S.C. § 552(b)(5). Volume I was held to satisfy § 552(b)(5) because it was made up "principally of internal working papers in which opinions are expressed and policies formulated and recommended."
Appellant urges that the trial court erred in its holding that the Peers Commission Report constituted "investigatory files compiled for law enforcement purposes" within the meaning of FOIA § 552(b)(7). Two distinct errors are asserted: (1) that the report is not an "investigatory file"; and (2) that even if it were once an "investigatory file", the report is no longer entitled to § 7 exemption because no courts-martial are to be held in the future; i.e. that a § 7 exemption cannot, apparently as a matter of law, continue as to documents which were involved in prior law enforcement proceedings.
In support of the first alleged error, appellant directs this court's attention to the letter which Lieutenant General Peers received from his superiors directing him to commence an investigation. There it was said:
Further, appellant points to language in the Affidavit of General Westmoreland:
Relying upon the emphasized text supra, appellant argues in conclusory fashion that:
It is our opinion that appellant's attempt to characterize the Peers Commission activities as an "investigat[ion] of the investigation" is but a frivolous semantic device. The trial court's duty in FOIA cases is clear. It must examine the total record to determine "whether the files sought . . . relate to anything that can fairly be characterized as an enforcement proceeding." Bristol-Myers Co. v. FTC, 138 U.S.App.D.C. 22, 424 F.2d 935, 939, cert. denied, 400 U.S. 824, 91 S.Ct. 46, 27 L.Ed.2d 52 (1970). In the recent case of Weisberg v. United States Department of Justice, 160 U.S.App.D.C. ___, 489 F.2d 1195 (1973) this court, sitting en banc, held that a trial court's determination must focus on "how and under what circumstances the files were compiled . . . ." Weisberg, supra, at ___, 489 F.2d at 1202.
Our own careful review of the entire record, Vaughn v. Rosen, 157 U.S.App. D.C. 340, at 345, 484 F.2d 820, at 825 convinces us that the trial court was correct in holding that the Peers Commission Report met the criteria of the § 7 exemption. The detailed affidavits submitted amply demonstrate the stated purposes of the investigation, the manner in which it was conducted, and its results.
The purpose of the investigation appears clear: to determine the adequacy of the United States Army's investigation of the My Lai incident to ascertain
We view the language cited by appellant as meaning simply that General Peers' investigation was to be an indpendent one; he was not to interfere with the activities of the Criminal Investigation Division [CID] which was investigating the activities at My Lai during the period in question. General Peers was to focus on the later investigation of the incident by the officers responsible for such an inquiry.
The manner in which General Peers conducted his investigation clearly reveals that he perceived that his investigation was to be the ultimate basis for courts-martial for violations of military law. Affidavits reveal that each witness who appeared was warned of his constitutional right to remain silent. Further, persons suspected of violations received more extensive warnings as to the nature of the charges against them, their right to remain silent, and their right to counsel.
Therefore, to reiterate, we find after examination of the record, that the trial court was correct in concluding that the entire Peers Commission Report was produced as an "investigatory file compiled for law enforcement purposes." Thus it is entitled to exemption under FOIA § 552(b)(7).
Appellant's second contention raises the question of whether the exemption from disclosure of matter contained in an "investigatory file" which was compiled and actually utilized by an agency in law enforcement proceedings applies after these enforcement proceedings have terminated.
424 F.2d at 939-940 (emphasis added). From this language appellant argues that the "prospect of enforcement proceedings" could not be "concrete
To prevent the unauthorized use of a § 7 exemption by agencies as a shield against disclosure, there must be some method of assuring that the exemption is being properly invoked. Here 15 individuals were in fact already court-martialed on the basis of the Peers Commission Report, a showing which goes beyond the bare allegation that proceedings were merely contemplated at the time the files were compiled. Where, as here, enforcement proceedings have in fact resulted, there can be little doubt that files were compiled for law enforcement purposes. Frankel v. SEC, 460 F.2d 813 (2d Cir.), cert. denied, 409 U.S. 889, 93 S.Ct. 125, 34 L.Ed.2d 146 (1972) is more closely in point. In Frankel, the Securities and Exchange Commission commenced an investigation to ascertain whether a corporation had violated § 10(b) of the Securities and Exchange Act of 1934. The Commission compiled a substantial file, and on the basis of materials contained in this file, commenced a civil action against the corporation and its president. These proceedings culminated in a consent decree. Corporate shareholders then commenced a FOIA suit demanding release of the Commission's investigatory file. The trial court held since the investigation and prosecution terminated on the date of the consent decree, the § 7 exemption also terminated at that time. Frankel v. SEC, 336 F.Supp. 675, 678 (S.D.N.Y. 1971). The Court of Appeals for the Second Circuit reversed stating clearly "the § 552(b)(7) exemption from disclosure applies even after an investigation and an enforcement proceeding have been terminated . . . ." 460 F.2d at 817.
The Frankel court's analysis of the purposes behind the § 7 exemption was well reasoned and persuasive. The court concluded that legislative history revealed that Congress evidenced a twofold purpose in enacting the § 7 exemption for investigatory files.
460 F.2d at 817. Our reading of the pertinent legislative history, reproduced in the margin,
The Second Circuit elaborated on the undesirability of post-proceeding disclosure, saying:
460 F.2d at 817-818. See also, Evans v. Department of Transportation, 446 F.2d 821, 824 (5th Cir. 1971), cert. denied, 405 U.S. 918, 92 S.Ct. 944, 30 L.Ed.2d 788 (1972); Clement Brothers Co. v. NLRB, 282 F.Supp. 540, 542 (N.D.Ga.1968), aff'd, 407 F.2d 1027 (5th Cir. 1969).
We note also that the recent en banc decision of this court in Weisberg v. U. S. Department of Justice, supra, is consistent with our decision in this case. While the court in Weisberg expressly limited the question there to the application of the § 7 exemption to "Federal Bureau of Investigation files" (slip op. at 8), the point remains that a § 7 exemption was there upheld as applied to files almost ten years old where no prosecution was ever conducted. This squarely rebuts appellant's broad argument that when there is no longer any prospect for future enforcement proceedings (necessitated in Weisberg by the death of the only suspect) the § 7 exemption from disclosure must terminate as well.
We therefore hold that an exemption under § 552(b)(7), as investigatory files compiled for law enforcement purposes, remains available after the termination of investigation and enforcement proceedings. The entire Peers Commission Report, being a report entitled to protection under § 552(b)(7), continues to be protected under that exemption.
Since we have concluded that the entire Peers Commission Report is exempt from disclosure under FOIA § 522(b)(7), we find it unnecessary to consider, nor do we express any opinion on, whether the report is entitled to additional exemption as an intra-agency memorandum under § 552(b)(5). Likewise, we have no need to consider a third exemption here urged by appellee
For the reasons stated supra, the decision of the trial court is
In discussing the investigatory file exemption, the House Report stated: