SPRECHER, Circuit Judge.
The primary issue presented in this appeal is whether an undisclosed portion of a memorandum to the Watergate Special Prosecutor from the Counsel to the Special Prosecutor is exempt from disclosure under the Freedom of Information Act (FOIA), 5 U.S.C. § 552.
Plaintiff requested from Watergate Special Prosecutor Charles F. C. Ruff a copy of the August 29, 1974, memorandum written by Philip Lacovara, then Counsel to the Special Prosecutor, and addressed to Leon Jaworski, then the Special Prosecutor. This request was denied initially on the ground that the Lacovara memorandum was governed by exemption five of the FOIA, 5 U.S.C. § 552(b)(5), which exempts from disclosure "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency. . ." The plaintiff sought reconsideration of this denial of his request and, upon reexamination, Special Prosecutor Ruff maintained that the memorandum was not subject to disclosure with the exception of one legal citation.
The plaintiff then filed suit in the district court under the Freedom of Information Act seeking disclosure of the Lacovara memorandum. The district court concluded that the memorandum was exempt from disclosure under exemption five and therefore dismissed plaintiff's complaint for want of jurisdiction. Plaintiff appeals from that decision and our jurisdiction derives from 28 U.S.C. § 1291.
The Watergate Special Prosecution Force (WSPF) was organized as an independent investigatory and prosecutive agency
Plaintiff is concerned with the decision not to seek the indictment of former President Richard M. Nixon. It is clear that the above quoted regulations gave the Special Prosecutor full authority to press for criminal liability concerning President Nixon. Leon Jaworski, upon his resignation as Special Prosecutor in October of 1974, informed then Attorney General Saxbe of the WSPF decision not to seek indictment of President Nixon in a letter accompanying his letter of resignation. Mr. Jaworski therein stated his reasons for not seeking an indictment of President Nixon after Mr. Nixon received a "full, free and absolute" pardon from President Ford on September 8, 1974. Mr. Jaworski based this decision on the memorandum written by Philip Lacovara, which Mr. Jaworski stated was on file in the office of the Special Prosecutor and from which he quoted Lacovara's conclusion to the effect that to seek indictment of President Nixon after the pardon would be futile.
We agree with the district court that the Lacovara memorandum must initially be regarded as a "predecisional intra-agency legal memorandum falling within the provisions of 5 U.S.C. § 552(b)(5) and therefore exempt from the compelled disclosure provisions of the Freedom of Information Act, as amended."
The relationship between exemption five and section (a)(2)(A) of the FOIA was addressed by the Supreme Court in NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 153-54, 95 S.Ct. 1504, 1518, 44 L.Ed.2d 29 (1975):
Therefore, the initial question is whether the WSPF Report of October, 1975, can be regarded as such a final opinion.
The Court in Sears considered the question of what constitutes a "final opinion" made in the "adjudication of cases" within the meaning of 5 U.S.C. § 552(a)(2)(A). There, the concern was with Appeals Memoranda sent from the General Counsel to the Regional Director of the NLRB deciding whether or not to issue a complaint on the basis of a "charge" filed by a private party with the Board. The Court analyzed the meaning of "final opinion":
Concerning the possible criminal liability of President Nixon, the WSPF was given full authority, as quoted above in the regulations, to investigate and determine whether to prosecute allegations specifically involving the President. The Special Prosecutor was guaranteed complete independence and the Attorney General declared that he would "not countermand or interfere with the Special Prosecutor's decisions or actions."
We wish to emphasize that we view our conclusion regarding this construction of 5 U.S.C. § 552(a)(2)(A) on the facts presented here to be very narrow. That is, although we hold on the facts of this case that the WSPF Report is a final disposition for purposes of the FOIA, we come to this conclusion "[w]ithout deciding whether a public prosecutor makes `law' when he decides not to prosecute or whether memoranda explaining such decisions are `final opinions' . . . ."
Concluding that the WSPF Report is a final disposition does not end our inquiry. Plaintiff does not seek the WSPF Report itself but rather requests the Lacovara memorandum which the WSPF Report quotes and relies on in explaining its decision not to seek President Nixon's indictment. Plaintiff argues that the Lacovara memorandum was expressly adopted or incorporated by reference into the WSPF Report, and must be disclosed as part of the "final disposition" of the allegations concerning Mr. Nixon despite the claim of a section five exemption.
The Supreme Court in Sears also addressed the question of exemption from disclosure for memoranda incorporated by reference in non-exempt final disposition documents and the rule set forth there must initially guide us:
It is not disputed that the WSPF Report expressly adopted the Lacovara memorandum, at least in part, since it is quoted in the Report along with the Jaworski letter
More than the mere quotation of a legal memorandum is involved here.
In a case such as this where an underlying memorandum is expressly relied on in a final agency dispositional document, even though only part of it is expressly reproduced, we hold that a presumption in favor of disclosability of the memorandum as a whole is created. This presumption is subject to rebuttal by the agency challenging disclosure upon the showing that other portions of the memorandum fall within the coverage of some exemption other than exemption five. The creation of this rebuttable presumption is consistent with Sears and with the purpose of the FOIA to allow maximum disclosure subject only to specified limited exceptions.
In the instant case, defendants do not claim that the material in the remainder of the Lacovara memorandum falls within a separate statutory exemption. Rather, they contend that further disclosure would impinge the attorney-client privilege and reveal the decision-making process of the WSPF. These are the basic policies that underlie exemption five of the FOIA.
Likewise, defendants' contention that disclosure will reveal the underlying decision-making processes of the agency, with consequential inhibiting effects, must fail when a memorandum is adopted by an agency as part of its final disposition. The Court in Sears answered that claim in this manner:
In summary, while we agree with the district court that the Lacovara memorandum must initially be regarded as nondisclosable under exemption five, the memorandum lost this exempt status when it was quoted and expressly adopted or incorporated by reference by the WSPF Report, which must be regarded as the final disposition of the allegations involving former President Nixon. Moreover, since we conclude that the WSPF Report expressly adopts or incorporates the whole Lacovara memorandum, that memorandum must be considered presumptively disclosable, subject to any claim of other applicable exemptions. No other exemptions have been shown to be applicable here. Therefore, the Lacovara memorandum must be disclosed and the district court is instructed, pursuant to 5 U.S.C. § 552(a)(4)(B), to enjoin defendants from withholding the Lacovara memorandum and to order the production of this memorandum which was improperly withheld from plaintiff.
REVERSED AND REMANDED.
Moreover, the decision not to seek the indictment of President Nixon adds support to the claim that the Report is a final disposition. If indictment had been sought, litigation would have ensued, and the conclusion of the matter would have been in a judicial forum. Here, however, there will be no judicial opinion because further litigation has been foreclosed by the decision not to seek indictment. As the Court in Sears, 421 U.S. 132, 155, 95 S.Ct. 1504, 1519, 44 L.Ed.2d 29, declared:
The district court cited Montrose Chemical Corp. v. Train, 160 U.S.App.D.C. 270, 491 F.2d 63 (1974), as support for its denial of disclosure in this case. The issue raised there, however, did not relate to the incorporation of a legal memorandum into an agency final opinion. Rather, the question was whether evidence summaries prepared by Environmental Protection Agency assistants were "factual" and thereby disclosable under EPA v. Mink, 410 U.S. 73, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973), or "deliberative" and thereby within exemption five.
Moreover, in dictum relating to the question of incorporation, the Montrose court, 160 U.S.App.D.C. 270, 491 F.2d 63, 70 (1974), declared:
(Emphasis in original and footnote omitted).