Rehearing Denied September 24, 1974. See 502 F.2d 1179.
WILKEY, Circuit Judge:
We have before us once again the question of the proper interpretation of several exemptions from disclosure under the Freedom of Information Act [FOIA].
I. THE NATURE OF THE GOVERNMENT REPORT
The USDA report and the investigation which spawned it were stimulated by an RHA pamphlet, "Studies in Bad Housing in America—Abuse of Power." Utilizing a method of case-history documentation, this RHA tract charged the Farmers Home Administration [FmHA] staff with racial and national origin discrimination in arranging government loans under the Rural Housing Program in two counties in Florida.
RHA's request for a copy of the investigation report was denied. Instead, OIG made public the "Investigation Summary" and "Statistical Data" sections of the report. Citing exemptions 4, 5, 6, and 7 of FOIA as valid justification for keeping the remainder confidential, the Government did not release the remainder of the report because the Government felt that its form—detailed and intimate case histories of specified, named persons
The District Court, in considering RHA's motion for summary judgment, found that the report as a whole was not exempt from disclosure. However, the court recognized that there might be a need to delete details which would permit identification of the individuals involved. Consequently, the court ordered deletion of the names of applicants for loans, the names of those who complained to their Congressmen, those who were interviewed, attorneys, etc. Deletion of geographical references, applications for loans, and affidavits of applicants was likewise ordered.
USDA then filed a motion to clarify or amend the court's order. In support of the motion, USDA submitted an affidavit of the Inspector General, Nathaniel Kossack, explaining the Government's fear that the court order as framed would permit release of intimate details concerning persons who could be readily identified by those familiar with the situation, notwithstanding the deletions, thus exposing the individuals to embarrassment or possible reprisals.
II. EXEMPTION 6: PERSONNEL, MEDICAL, AND SIMILAR FILES
The FOIA was enacted to ensure public access to a wide range of government reports and information.
The District Court held that exemption 6 "has no application to this investigatory report." This holding was based on the view that the exemption "was designed to apply to detailed personal resumes and health records from agencies such as the Veterans Administration, welfare departments and the military."
While the District Judge provided no elaboration of his rationale in the form of findings, he implied that the report here could not be considered "similar files" under exemption 6. Looking to the purpose of exemption 6, on the contrary, we believe that the investigatory
Of course, our interpretation of the statute, concluding that the investigatory report comes within the class of similar files which exemption 6 aimed at protecting, does not resolve the question whether exemption 6 dictates nondisclosure here, for exemption 6 specifically permits protection only of those files whose disclosure would result in "a clearly unwarranted invasion of personal privacy."
In an opinion by Judge Wright, this court has previously considered the scope of the "clearly unwarranted invasion" language, in Getman v. NLRB.
These principles should be applied in evaluating the investigatory reports
One important factor which must be considered on remand is whether the deletions thus far ordered are sufficient to protect the privacy of the individuals. In construing the various exemptions, this court has often suggested deletions of certain protected matters so that the remainder of the document could be disclosed.
The District Judge should also consider any alternative sources of information which might be available. For example, the possibility of RHA asking individuals independently for similar information should be explored.
III. EXEMPTION 4: CONFIDENTIAL OR PRIVILEGED FINANCIAL INFORMATION
The USDA argues that exemption 4 also protects the investigatory report from disclosure. This exemption applies to "trade secrets and commercial or financial information obtained from a person and privileged or confidential."
While it is true that exemption 4 is primarily a trade secrets exemption, it also protects individuals from disclosure of financial information which is privileged or confidential. This court has recently described the scope and meaning of "confidential" in exemption 4 in National Parks & Conservation Association v. Morton. Judge Tamm concluded that,
As much of the information collected here related to loan applications, certainly some data is financial information which might merit confidential treatment.
We therefore remand to the District Court for reconsideration of exemption 4 for reasons similar to those discussed regarding exemption 6. While several of our Circuit's cases support the idea of deletions to permit disclosure of the remainder of the report,
IV. EXEMPTION 7: INVESTIGATORY FILES
This provision exempts from disclosure "investigatory files compiled for law enforcement purposes except to the extent available by law to a party other than an agency."
Since this decision on 9 May 1973 this Circuit has extensively considered exemption 7 in two cases, Weisberg v. U. S. Department of Justice,
The standard used by the District Judge is no longer proper under the Weisberg and Aspin decisions. In Weisberg, where FBI materials concerning the investigation of President Kennedy's death were sought, we held in an en banc decision by Judge Danaher that the files were exempt from disclosure because they were investigatory files compiled for law enforcement purposes.
In Aspin, decided one month after Weisberg, Judge Tamm's opinion for the court provided a more detailed analysis of exemption 7. The material at issue in Aspin was the report of the Peers Commission, which investigated the My Lai incident and subsequent Army investigation, with emphasis on evidence of possible offenses under the Uniform Code of Military Justice and possible future prosecution. Judge Tamm noted that the duty of the trial court was to "examine the total record to determine `whether the files sought ... relate to anything that can fairly be characterized as an enforcement proceeding.'"
In Aspin the purposes of exemption 7 were identified: the prevention of premature disclosure of an investigation's results, and the maintenance of confidentiality of both the procedures of investigation and the witnesses' revelations.
It is established now that the Government need not show "imminent adjudicatory proceedings or the concrete prospect of enforcement proceedings." What the Government is required to show is that the investigatory files were compiled for adjudicative or enforcement purposes. Whether the adjudication or enforcement has been completed is not determinative, nor is the degree of likelihood that the adjudication or enforcement may be imminent, as the District Judge here thought before Weisberg and Aspin. Here the investigation was undertaken to determine whether USDA's FmHA had engaged in racial discrimination. As a result of the investigation, USDA concluded that there had been no discrimination, and naturally there have been no enforcement proceedings. This result does not alter the basic
On its face, exemption 7's language appears broad enough to include all such internal audits. If this broad interpretation is accepted, however, we immediately encounter the problem that most information sought by the Government about its own operations is for the purpose ultimately of determining whether such operations comport with applicable law, and thus is "for law enforcement purposes." Any internal auditing or monitoring conceivably could result in disciplinary action, in dismissal, or indeed in criminal charges against the employees. But if this broad interpretation is correct, then the exemption swallows up the Act; exemption 7 defeats one central purpose of the Act to provide public access to information concerning the Government's own activities.
We think "investigatory files compiled for law enforcement purposes" must be given the same meaning, or a meaning to achieve the same result, whether the subject of the files is a government employee or an ordinary private citizen. While Congress did not confront this problem specifically, the examples cited of "investigatory files" and "law enforcement purposes" point to this interpretation.
V. EFFECT OF INDIVIDUAL'S CONSENT TO GOVERNMENT DISCLOSURE
The Government has offered to release information concerning any individual to RHA if the written authorization of the individual is obtained. Specifically, the Government wrote to RHA,
RHA did not obtain any individual releases.
The exemptions to the Freedom of Information Act place limits on compulsory disclosure; presumably the Government has power to waive an exemption. However, in so doing, the Government and a court, when its authority is invoked, must be alert to protect other interests in confidentiality besides those of the Government which are present in each of the nine exemptions, some more obviously than others. Much information is disclosed voluntarily and involuntarily (but with less difficulty than would otherwise be true), because the individuals supplying the information believe that, since the Government has power to protect confidentiality under the exemptions, it will do so.
This suggestion of the Government for obtaining individual releases protects the interest involved in exemption 6 that individuals' medical, personnel, or similar files not be indiscriminately disclosed. However, the ambiguous terms of the Government's offer to release should be clarified. It is unclear whether the Government would release personal information about one person which is furnished by a second person on simply the second's authorization, or only by the first's, or by both. One interest protected by exemption 7, that of enabling the investigatory process to proceed unimpeded by hesitancy of witnesses or disclosure of investigatory technique, which was not previously evaluated by the trial court, should not be overlooked on remand.
The trial court should weigh carefully several difficulties inherent in the release by individual consent of government compiled information on private
Finally, putting the same amount of information in the public domain could be achieved by private interviewing of those individuals who wish to participate. They can then reveal whatever information they desire, and this process might, as a practical matter, be no more time-consuming for RHA than obtaining formal consents to disclosure by the government. This approach would be similar to the approach taken for grand jury witnesses. We do not allow a grand jury witness' testimony to be revealed except under well-defined rules; however, the witness is usually free to come out of the grand jury and tell the public what he knows with regard to the subject of the grand jury inquiry.
We remand this case to the District Court for reconsideration of exemptions 4, 6, and 7, in light of this opinion. In so doing, we need not now confront the question of equitable discretion of the court to go beyond FOIA, which was suggested by USDA. We also do not consider the applicability of exemption 5,
Reversed and remanded.
Appendix at 43-44.
H.R.Rep.No.1497, 89th Cong., 2d Sess. 11 (1966) (citation omitted).
491 F.2d at 29 (citations omitted; emphasis original). We thus concluded in Aspin that the District Court's reliance on Bristol-Myers was misplaced.
Cf. Evans v. Department of Transportation, 446 F.2d 821 (5th Cir.), cert. denied, 405 U.S. 918, 92 S.Ct. 944, 30 L.Ed.2d 788 (1972).
Id. at ___, 502 F.2d at 373. Judge Leventhal separately analyzed the meaning of the phrases "investigatory files" and "law enforcement purposes." We have not found such separation necessary here, but have dealt with the elements as they "fuse and interact." Id. at ___, 502 F.2d at 374.