The only issue on this appeal is whether appellees have a right of access under the Freedom of Information Act, 5 U.S.C. § 552, to correspondence between the National Highway Traffic Safety Administration and automobile manufacturers in connection with pending
Exemption 7 involves investigatory files compiled for law enforcement purposes, 5 U.S.C. § 552(b)(7). As the District Court recognized (at p. 1325), there is no dispute that the correspondence in question became part of NHTSA's investigatory file. Although the court also recognized that the correspondence in question "could conceivably lead to a civil enforcement proceeding," it went on to conclude that "the agency has not made the required showing that disclosure of the files sought is likely to create a concrete prospect of serious harm to its law enforcement efficiency,'" citing for this proposition, and quoting from, a decision of a division of this court. Weisberg v. Department of Justice, No. 71-1026 slip opinion dated February 23, 1973.
The division's opinion in Weisberg was, however, subsequently vacated by an order granting rehearing en banc; and the en banc disposition by this court of Weisberg, 160 U.S.App.D.C. ___, 489 F.2d 1195 (decided October 24, 1973), compels reversal of the result reached in this instance by the District Court. The court en banc in Weisberg held that, if the documents in issue are clearly to be classified as "investigatory files compiled for law enforcement purposes," the exemption attaches, and it is not in the province of the courts to second-guess the Congress by relying upon considerations which argue that the Government will not actually be injured by revelation in the particular case. We have explored with care the question of whether the correspondence in issue was compiled for law enforcement purposes, and we are of the opinion that it patently was, as appeared also to be the view of the District Court. Under these circumstances, exemption 7 was applicable, and the District Court, not having the benefit of Weisberg en banc, erred in holding that the correspondence should be disclosed.