Rehearing Denied in No. 73-1090 August 30, 1973.
LEVENTHAL, Circuit Judge:
The issue before us is whether the Secretary of Health, Education and Welfare may resist disclosure of the material of 22 "open and active" files involving agency review of public school segregation and discrimination practices in northern localities. We hold that such material falls within exemption 7 of the Freedom of Information Act and reverse the order of the District Court requiring disclosure under that statute.
A. Statutory and Judicial Background
Racial discrimination in any activity or program that receives financial assistance from the Federal Government is prohibited by 42 U.S.C. § 2000d. Available enforcement procedures are outlined in § 2000d-1; the ultimate sanction is a termination of financial assistance following an administrative determination that racial discrimination exists.
To carry out its mandate under these provisions, the Office for Civil Rights of the Department of Health, Education and Welfare "undertake[s] factual investigations when there is reason to suspect that a public school or district which is the recipient of federal aid may be practicing racial segregation or discrimination." (complaint, item 5). Plaintiffs sought disclosure of files compiled in a large number of these investigations. After negotiations with HEW yielded a substantial number, but not all, of these files, plaintiffs brought an action to compel disclosure of the rest, asserting that the agency had a duty to disclose under the Freedom of Information Act, 5 U.S.C. § 552(a)(3). The agency claims that these files are exempt from disclosure under section 552(b)(7) of the FOIA, which provides:
Recent decisions of this court
B. "Compiled for law enforcement purposes"
For a file to be deemed to have been compiled for law enforcement purposes it is not necessary that an adjudication have been imminent or even likely, either at the time the material was amassed or at the time disclosure is sought under the FOIA. In Weisberg, supra, we held that exemption 7 applied to material relating to the assassination of President Kennedy long after the prospect of prosecution had passed. In Aspin v. Laird, supra, note 1, we held the exemption applicable to a report that formed the basis for prosecutions that, with one exception, had been concluded. See also 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). And in Ditlow v. Brinegar, supra, note 1, we held the exemption applicable to material amassed in connection with an enforcement proceeding that was merely "conceivable." Likelihood of adjudication is not the decisive determinant of whether a file has been compiled for law enforcement purposes.
Our cases have also established that the term "law enforcement" extends beyond criminal proceedings. Both Ditlow v. Brinegar, supra, and Bristol-Myers Co. v. FTC, 138 U.S.App. D.C. 22, 424 F.2d 935, cert. denied, 400 U.S. 824, 91 S.Ct. 46, 27 L.Ed.2d 52 (1970), endorsed the view propounded in the legislative history
It is not decisive for purposes of the applicability of exemption 7 that a relatively small number of investigations result in formal action. Where an agency, like HEW, has both voluntary compliance and formal determination functions, though the investigations may end up directed to one or both, the pertinent files are "compiled for law enforcement purposes."
C. "Investigatory files"
It is claimed that HEW is engaged merely in administering federal aid programs, and that the documents in question are ancillary to that task rather than investigatory in nature. If this characterization is correct, the material is not protected by exemption 7.
D. Overall Consequences
The two elements of the statute have been discussed separately for purposes of analysis, but they obviously fuse and interact. Taking the provision as a whole, we conclude that these 22 files fall within the literal meaning of the statute as "investigatory files compiled for law enforcement purposes." A. court may qualify the plain meaning of a statute when its consequences—plainly absurd, inequitable, or in conflict with legislative history—permit the court to discern a clear legislative intention to the contrary. But that is not the situation in the case at bar.
The policy reasons for the FOIA exemption for "investigatory files compiled for law enforcement purposes" include such matters as the protection of the identity of informants and other confidential records; the protection of persons who are being or have been investigated from unwarranted invasion of privacy and damage to reputation; and protection of agencies from disclosure of investigative techniques.
Without engaging in any "balance" of considerations, which would exceed our judicial role, we think it apparent that the policy considerations underlying exemption 7 are applicable in some measure to the files before us. The experience of the Office for Civil Rights is that only by keeping promises of strict confidentiality is it able to conduct thorough investigations. In an area as sensitive as school desegregation, investigators find that to secure cooperation, they must be able effectively to immunize those who would help from harassment, threats and social pressures. (A. 40). Finally, the agency's experience has been that its files often contain privileged material as well as material that is potentially and needlessly damaging to the careers and reputations of local teachers and school officials. (A. 42-3).
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Since these files are "investigatory files compiled for law enforcement purposes," our duty is "at an end." In view of our recent exemption 7 cases (supra note 1), which were not available to the District Court, its judgment must be
On Appellees Petition for Rehearing
On consideration of appellee's petition for rehearing, it is
Ordered by the Court that the aforesaid petition for rehearing is denied.
LEVENTHAL, Circuit Judge:
Appellee's petition for rehearing leads us to add a clarifying note, in order to avoid misunderstanding of our opinion. The FOIA provides for disclosure of government files unless an exemption is established—unless, in case of a claim that Exemption 7 is applicable, it is established that the controversy relates to "investigatory files compiled for law enforcement purposes." We cannot accept the contention that the Administrator's assertion that files are "investigatory"
In Rural Housing Alliance v. Department of Agriculture, 162 U.S.App.D.C. ___, 498 F.2d 73 (1974), we remanded for an evidentiary hearing as to the initial purpose of the investigation, in order to ascertain whether the files in fact were compiled for law enforcement purposes.
Our opinion in this case is entirely congruent with Rural Housing Alliance, likewise focusing on the initial purpose of the investigation. But we see no need for remand, for the instant case is relatively clear.
In this case, unlike Rural Housing Alliance, there was no internal audit of the functioning of Federal employees but an investigation of state institutions, and the petitioner in essence raised a question as to end results rather than initial purpose. Appellees acknowledged at the outset that the files were investigative in nature; their sole contention was that the prospect of law enforcement action was too remote for the exemption to apply. We rejected that contention in this case, but we did not mean that the exemption is established by the mere fact that one of the purposes of opening a file is investigative, or that sanctions hover as a possibility somewhere down the road, or that some material in some file may at some point be used for some law enforcement purpose. With that kind of extrapolation the exemption clause would reach so far as to swallow up the basic statutory presumption of disclosure. In considering whether a request for disclosure involves "investigatory files compiled for law enforcement purposes," the court will of course give consideration to the executive's submission, but it will be governed, not by logic pushed to extremes, but by good sense and the essential heft of the case.