Opinion for the Court filed by WILKEY, Circuit Judge.
Concurring opinion filed by BAZELON, Circuit Judge.
Dissenting opinion filed by MacKINNON, Circuit Judge.
OUTLINE OF THE OPINION
Introduction................................. 755 I. BACKGROUND ......................................... 755 A. Statutory Framework ............................. 755 B. Factual and Procedural History .................. 757 II. DISCUSSION OF THE ASSERTED BASIS OF NON-DISCLOSURE .................................. 759 A. Appellant's (a)(2) Claim ........................ 759 B. Appellant's (b)(2) Claim ........................ 763 1. Statutory Language ........................... 763 2. Legislative History .......................... 767 C. Appellant's (b)(5) Claim ........................ 771 1. The Deliberative Process Privilege Claim ........................................ 772 2. The Attorney Work Product Claim 774 3. The Prosecutorial Discretion Privilege .................................... 776 D. Appellant's (b)(7) Claim ........................ 779 III. CONCLUSION ......................................... 780
WILKEY, Circuit Judge:
This case arises under the Freedom of Information Act (the "Act").
While we agree with the district court that these documents are releasable under the Act, we do not agree that they are releasable under subsection (a)(2). Rather, we conclude that these documents are disclosable under subsection (a)(3). We also find that the statutory exemptions from disclosure timely claimed by the Department of Justice in this case—Exemptions 2 and 5—are inapplicable. Finally, we hold that Exemption 7, which appellant invoked for the first time on this appeal, was not timely raised. Accordingly, the Order and Judgment of the district court is affirmed as modified.
A. Statutory Framework
Congress enacted the Freedom of Information Act for the express purpose of increasing disclosure of government records. It was designed "to pierce the veil of administrative secrecy and open agency action to the light of public scrutiny."
The FOIA is codified at 5 U.S.C. § 552, and its structure is by now familiar. The first part of the statute—subsection (a)—mandates the disclosure of records by government agencies. It is divided into
Finally, and most comprehensively, paragraph (a)(3) requires disclosure, on demand, of all other reasonably described records not already released under paragraphs (a)(1) and (a)(2). It provides in pertinent part:
Thus, these three paragraphs—(a)(1), (a)(2), and (a)(3)—are alternative disclosure channels, and paragraph (a)(3) serves as a catch-all provision, mandating disclosure of material that does not fall within the categories set forth in the preceding two paragraphs.
Of course, FOIA does not command the disclosure of all government records. Congress realized that some secrecy is necessary for the government to function. Consequently, the second part of the statute—subsection (b)—enumerates nine categories of records that are exempt from the Act's disclosure requirement. These limited exceptions, however, "do not obscure the basic policy that disclosure, not secrecy, is the dominant objective of the Act."
B. Factual and Procedural History
On 13 November 1975 appellee Jordan filed an FOIA request with the Deputy Attorney General, seeking access to the charging manuals, rules, and guidelines used by the Office of the United States Attorney for the District of Columbia in deciding (1) "which persons should be prosecuted for suspected violations of criminal laws in the District of Columbia, and/or the manner in which prosecutorial discretion will be exercised", and (2) "which persons suspected of violations of criminal laws will be eligible for rehabilitation programs which divert such individuals from criminal prosecution."
In the course of discovery it was determined that there are at least 30 documents in the Office of the United States Attorney for the District of Columbia that fall within the description of materials requested by Jordan.
The first pertinent document is the "Papering and Screening Manual for the Superior Court Division" (the Manual). Most of the information contained in this 178-page Manual is administrative, concerning such matters as payment of witnesses, papering procedures, sample forms, office organization, and the like.
The second pertinent document is a 6-page memorandum entitled "Pre-Trial Diversion Guidelines" (the "Guidelines"). These guidelines set forth the criteria for eligibility in three separate pre-trial diversion programs. One of the three programs discussed in the guidelines is the First Offender Treatment (FOT) program, and the
On 24 March 1976 Jordan moved for partial summary judgment with respect to (1) the entire "Papering and Screening Manual", and (2) the FOT Guidelines contained in the "Pre-Trial Diversion Guidelines". Jordan contended that the Department of Justice was required by subsection (a)(2) of the Act to index both of these documents and make them "available for public inspection and copying" as "statements of policy . . adopted by the agency" under (a)(2)(B) and as "administrative staff manuals and instructions to staff" under (a)(2)(C).
On 30 April 1976 the U.S. Attorney for the District of Columbia wrote Jordan's counsel, stating:
Subsequently, the Department of Justice filed its cross-motion for partial summary judgment with respect to the 10 withheld paragraphs in the Manual and the FOT guidelines, claiming that this material was covered by subsection (b)(2), which exempts from disclosure matters "related solely to internal personnel rules and practices of an agency", and by subsection (b)(5), which exempts from disclosure "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 Department also stressed what it viewed as the pernicious consequences that would result from disclosure:
The case was argued before District Judge Waddy on 13 January 1976. Judge Waddy ruled from the bench, and, on the following day, the district court issued a written Order and Judgment that granted appellee's motion for summary judgment and declared that the Manual and the Guidelines were releasable under subsection (a)(2) of the Act. The Department of Justice
II. DISCUSSION OF THE ASSERTED BASES OF NON-DISCLOSURE
The Department of Justice contends on this appeal that the withheld portions of the Manual and the FOT Guidelines are exempt from mandatory public disclosure under the FOIA. It relies on four specific provisions in the Act: paragraph (a)(2), and exemptions (b)(2), (b)(5), and (b)(7). We shall examine these claims seriatim.
A. Appellant's (a)(2) Claim
The district court held that the Manual and Guidelines sought by appellee Jordan were releasable under paragraph (a)(2) of the Act. As we have already noted, that paragraph requires that certain enumerated materials, including "administrative staff manuals", be indexed and made available for public inspection and copying even without a demand. The Department of Justice argues that this ruling by the district court was erroneous. Its contention is that the materials at issue in this case are not "administrative staff manuals" but rather are "law-enforcement manuals" and, as such, are not releasable under paragraph (a)(2).
The Department's position finds ample support in the legislative history. The original version of FOIA introduced into the Senate did not contain the word "administrative" before the words "staff manuals" in paragraph (a)(2); clause (C) of that paragraph referred only to "staff manuals."
The House report explained this amendment in similar terms:
It is evident, then, that by inserting the word "administrative" in paragraph (a)(2), Congress intended to make a distinction between "administrative" manuals, on the one hand, and "law enforcement" manuals, on the other. It is also clear that Congress intended that the former material should be subject to the indexing and public inspection and copying requirements of paragraph (a)(2) and that the latter material should not be included within the coverage of this paragraph.
The line between these two categories—"administrative" matters and "law enforcement" matters—is not exactly clear, and it
However, the mere fact that the material requested by appellee does not fall within the scope of paragraph (a)(2) does not mean that it is exempt from disclosure under the Act. As we have already noted, subsection (a) provides for three different methods of making information available to the public: (a)(1) requires certain matter to be published in the Federal Register; (a)(2) requires certain matter to be indexed and made available for public inspection and copying even without demand; and (a)(3) requires the release on demand of all reasonably described records that have not already been made available under (a)(1) or (a)(2). Thus, paragraph (a)(2) is but one of three alternative disclosure channels in the Act. If particular records, such as the Manual and Guidelines in this case, do not fall within the scope of (a)(2), it does not mean that such documents are not disclosable under the Act. It means only that they are not subject to the particular indexing and public inspection and copying requirements of that paragraph; these same documents may nevertheless be covered by either (a)(1) or (a)(3). Indeed, (a)(3) is a catch-all provision, and virtually every agency record which does not fall within (a)(1) or (a)(2) is disclosable under (a)(3) unless it falls within one of the nine exemptions in subsection (b).
In the instant case we have already concluded that the Manual and Guidelines sought by appellee Jordan are not covered by (a)(2); nor do they appear to fall within the categories of materials enumerated in (a)(1). However, they clearly fall within the scope of (a)(3). There is no doubt that these documents are "agency records"; there is no doubt that appellee Jordan has requested these documents "in accordance with the rules" of the Department of Justice; there is no doubt that appellee Jordan's request "reasonably describes" the records sought; and it is clear that these documents have not already been made available under (a)(1) or (a)(2). Under these circumstances, then, the Department of Justice must make the Manual and Guidelines "promptly available" to Jordan under paragraph (a)(3), unless these documents are exempted from disclosure by at least one of the nine specific exemptions delineated in subsection (b).
The Department of Justice strongly challenges this conclusion, contending that staff
The three paragraphs in subsection (a) of the Act are not exempting provisions. The only exemptions in the Act are to be found in subsection (b). The nine specific exemptions set forth in that subsection are exclusive. As the Act is structured, then, an agency is not justified in withholding records from public disclosure unless those records fall within the specific terms of at least one of the nine exemptions in subsection (b). This is clear from both the statute's plain language and its legislative history. Subsection (c) of the Act, for example, provides that the FOIA
The Senate Committee report states that the purpose of subsection (c) is to
Moreover, paragraph (a)(4)(B), part of the 1974 amendments to the Act, provides that reviewing courts may examine withheld records in camera
Even more compelling, the last sentence of subsection (b) clearly states that only matters specifically exempted by that subsection may be withheld by an agency:
We agree with the Senate that § 552(c), together with § 552(a)(4)(B) and § 552(b), does make the matter "clear beyond doubt." Finally, the case law confines the Act's exemptions to those enumerated in subsection (b).
It is thus clear that limitations in paragraph (a)(2) with respect to law enforcement manuals, do not "exempt" material from disclosure under paragraph (a)(3), since the only exemptions in the Act, as Congress has expressly declared, are in subsection (b). The nonapplicability of either (a)(1) or (a)(2) does not foreclose the possibility of disclosure under (a)(3), for otherwise (a)(3) has no purpose.
Still, the Justice Department contends that Congress' purpose in excluding law enforcement matters from (a)(2) would be completely defeated by including these same matters in (a)(3), and that in order to give effect to the limitations in (a)(2), we must read (a)(2)(C) as creating an exemption in addition to the nine in subsection (b). We recognize that this argument is not frivolous; however, we point out that it does not necessarily follow that Congress' purpose in limiting the scope of (a)(2) will be frustrated by giving full effect to (a)(3), for we must give some effect to Congress' purpose in defining three different modes of disclosure for different types of documents.
On the one hand, it may be, as appellant suggests, that Congress' purpose in excluding law enforcement matters from (a)(2) was to protect these matters from all forms of disclosure. In order for us to read the legislative history in this way, however, we would have to suppose that Congress made an egregious legislative error by placing what it intended to be an exemption in the wrong subsection of the Act, and we would also have to ignore the clear and repeated statements in the statute itself and in other parts of the legislative history that the Act permits withholding documents only to the extent that such documents fall within a specific exemption in subsection (b). We are reluctant to give ambiguous legislative history this much weight. As we recently stated concerning the FOIA: "Ambiguous inferences from the legislative history cannot supplant the clear mandate of the language of the statute."
On the other hand, it may be that Congress did not intend to give complete protection to the "law enforcement" materials it excluded from (a)(2). Paragraphs (a)(2) and (a)(3) provide for different methods of disclosure: (a)(2) requires the public indexing of materials and their automatic release to the public; (a)(3) requires release only upon the filing of a request reasonably describing the material sought. In placing the limitation on the accessibility of law enforcement materials in paragraph (a)(2) rather than in subsection (b), it may be that Congress intended to extend some, but not complete, protection to these materials; that is, Congress intended to protect law enforcement manuals from automatic public indexing and disclosure under (a)(2) but not from disclosure on demand under (a)(3). This may be thought a somewhat peculiar regime and one that may not be in the public's interest, but it is not a wholly irrational one, and this reading of the legislative history of paragraph (a)(2) is at least consistent with the plain wording of the statute and other, less ambiguous, parts of the legislative history. We feel constrained to accept this interpretation in the absence of clearer guidance from the legislative branch: If Congress has made a mistake in drafting this law, Congress must repair it.
B. Appellant's (b)(2) Claim
The Department of Justice contends that the withheld portions of the Manual and the FOT Guidelines are exempted from mandatory disclosure by subsection (b)(2). We think it is clear from the statutory language and the legislative history of subsection (b)(2) that this position is without merit.
1. Statutory Language
According to its terms, subsection (b)(2) exempts from disclosure matters "related solely to the internal personnel rules and practices of an agency." There are three key words in this short description of exempted material: "solely", "internal", and "personnel".
"Internal", as modifying or limiting "personal rules and practices of an agency", would seem to refer to those rules and practices that concern relations among the employees of an agency, as distinct from rules and practices that might relate to, or have a more direct impact upon, members of the public. The rules and practices by which an agency orders its own affairs among its own personnel would seem to invite little public interest in disclosure. Conversely, rules and practices that have a definite impact on the public would seem to be a more fit subject for disclosure to the public. The former might properly be described as "internal", the latter as "external" rules and practices. On this basis, the Manual and Guidelines sought by appellee should be more properly described as "external" rather than "internal", although this is not the decisive division.
"Personnel" is the real problem for the Government agency here seeking to avoid disclosure. It is almost impossible to look at this short, simple exemption on its face, "related solely to the internal personnel rules and practices of an agency," and say that this description was intended to cover the Manual and Guidelines here. The word "personnel" would normally connote matters relating to pay, pensions, vacations, hours of work, lunch hours, parking, etc.—precisely the kind of trivia that was indeed described by the Senate's comment on the coverage of this particular exemption.
Finally, the word "solely" emphasizes the limited scope of Exemption 2, whatever the other words are deciphered to mean.
It can only be concluded from the face of the statute that the Guidelines at issue here are not within the specific language of Exemption 2.
In Ginsburg, Feldman & Bress v. FEA,
This interpretation cannot be sustained. It is violative of basic rules of English grammar, contrary to the legislative history of the exemption, and incompatible with the general purpose of the Act. Indeed, every court which has considered the specific language of Exemption 2 has concluded, for good and sufficient reasons, that the phrase "internal personnel" modifies both "rules" and "practices".
Grammatically, it is clear that "internal" modifies "practices". "Internal" is an adjective which requires completion by the prepositional clause "of an agency". Whatever is modified by "internal" must be internal to something. "Internal" is orphaned unless it relates to the clause "of an agency". It is basic grammar that both nouns bracketed by the word "internal" and the phrase "of an agency" are modified by "internal". Moreover, while it is conceivable that "personnel" applies only to "rules", the preferred construction is that it modifies both nouns in the dyad "rules and practices". If Congress intended to sever "practices" from "internal personnel rules", it would have preserved parallel construction by inserting the article "the" before the word "practices".
We need not rely solely on the rules of grammar to determine that Congress had no intention of exempting a general category of information relating to "practices of an agency". It is clear from the legislative history of this particular clause, with direct reference to its grammatical construction, that Congress intended the exemption to be read as a composite clause, covering only internal personnel matters.
The phrasing of Exemption 2 is traceable to Congressional dissatisfaction with the exemption from disclosure under former Section 3 of the Administrative Procedures Act of "any matter relating solely to the internal management of an agency."
Even more convincingly, it is clear from both the House and Senate hearings on Freedom of Information legislation in the 89th Congress that everyone concerned in both the legislative and executive branches understood that the words "internal personnel" applied to all of Exemption 2. For example, on the first day of House hearings on H.R. 5012, Congressman John E. Moss, Chairman of the Foreign Operations and Government Information Subcommittee of the House Government Operations Committee, Benny L. Kass, counsel to the subcommittee, and Norbert A. Schlei, Assistant Attorney General, Office of Legal Counsel, discussed the scope of the phrase "internal personnel rules and practices":
It is clear from this exchange that Congressman Moss, author of H.R. 5012, had intended the words "internal personnel" to apply to both "rules" and "practices". He apparently wanted investigative manuals covered by the exemption, but he was told flatly that the word "personnel" precluded such interpretation. He acknowledged this, but stated his concern that excising "personnel" would "open the barn door" by leaving a broad exemption for all "internal rules and practices". The Senate was also told by several witnesses (at its hearings on the FOIA) that the proposed legislation did not protect investigative manuals and that if the Senate wanted to protect this material it would either have to expand Exemption 2,
Finally, it is clear in reading Exemption 2 in the context of the Act as a whole that Congress intended to limit the word "practices" to "internal personnel" matters. The recognized purpose of the Act is to assure the broadest possible access to governmental records. Accordingly, the disclosure requirements are to be construed broadly, the exemptions narrowly. If the Justice Department's reading of Exemption 2 were accepted, the Act would not apply to "matters that are . . . related solely to the . . . practices of an agency." This would be an unlimited exemption, so broad that it would effectively swallow the rest of
In short, a survey of every intrinsic and extrinsic aid relevant to interpretation of Exemption 2 supports our reading of the provision's specific language. The words "internal personnel" modify both the terms "rules" and "practices", and, if anything is clear, it is that the documents at issue here do not relate "solely" to "internal" or to "personnel" matters. Indeed, they may be said to relate primarily to external substantive matters.
2. Legislative History
With respect to the legislative history of this particular exemption, the Justice Department is in an even weaker position than with respect to its argument on the face of the statute, because the Supreme Court, in Department of the Air Force et al. v. Rose, et al. and this court in Vaughn v. Rosen (Vaughn II) have construed and discussed at length the legislative history of this exemption.
The perils of reliance on legislative history are nowhere better illustrated than with regard to Exemption 2, for rarely can there be found two such contradictory explanations of a statute's meaning than in the Senate and House Reports. The Senate Report on the Freedom of Information Act stated:
Diametrically opposite was the House Report:
Thus, the Senate Report interprets Exemption 2 as exempting only trivial "housekeeping" matters in which it can be presumed the public lacks any substantial interest. The language of the House Report, however, "carries the potential of exempting a wide swath of information under the category of `operating rules, guidelines and manuals of procedures.'"
As a liminal matter, it must be remembered that committee reports are not the law; they are only aids in interpreting statutory language and are useful only to the extent they fairly reflect congressional intent.
In Vaughn II we expressed several reasons for preferring the Senate Report. First, we noted that the Senate Report language was more consistent with the actual wording of the statute, whereas the House Report appeared in several areas to depart from and indeed contradict the statutory language of the Act. This is an important factor in determining the relative reliability of committee reports.
Finally, we addressed in Vaughn II what one commentator has called the "abuse of legislative history" which was involved in adoption of the House Report.
Mr. Kass then pointed out eight sections in the House Report in which the Justice Department was able to get the language it wanted. Not surprisingly, the seventh area was the Report's description of Exemption 2. Mr. Kass concluded:
This background is relevant to the weight that the House Report should be accorded as an item of legislative history. Statements in the report of a single House are not reliable guides to congressional intent where, as here, they have been inserted in an effort to change the meaning of the statutory language already adopted by the House which initiated the legislation. As Professor Davis said:
The position of this Court in Vaughn II has recently been vindicated by the action of the House of Representatives itself in passing the "Government in the Sunshine Act of 1976."
Of course, Professor Davis is correct, for it is a well established principle that courts may look to subsequent legislation as an aid in the interpretation of prior legislation dealing with the same or similar subject matter.
Applying this principle, it is highly significant that the Government in the Sunshine Act, enacted in 1976, carries over verbatim most of the exemptions in the Freedom of Information Act, including the specific language of Exemption 2. Thus, 5 U.S.C. § 552b(c)(2) exempts from the Act's open meeting requirement portions of meetings likely to "relate solely to the internal personnel rules and practices of an agency." The House Report to the Sunshine Act gives the same narrow interpretation to this exemption as the Senate did in 1965:
It thus appears that by 1976 the House of Representatives had repudiated the sweeping language concerning Exemption 2 contained in its 1966 report on the Freedom of Information Act.
This Court's rejection of the House Report has recently been vindicated by the Supreme Court. Five months after our decision in Vaughn II, the Supreme Court in Department of the Air Force et al. v. Rose
In concluding its discussion of Exemption 2, the Supreme Court stated: "In sum, we think that, at least where the situation is not one where disclosure may risk circumvention of agency regulation, Exemption 2 is not applicable to matters subject to such a genuine and significant public interest. . . . Rather, the general thrust of the exemption is simply to relieve agencies of the burden of assembling and maintaining for public inspection matter in which the public could not reasonably be expected to have an interest."
From the words "at least where the situation is not one where disclosure may risk circumvention of agency regulation," the Justice Department argues that the Supreme Court implied that Exemption 2 should be stretched to cover such a situation. We cannot agree; this language of the Supreme Court means no more than that the Court cautiously left open the question of what to do about any exemption "where disclosure may risk circumvention of agency regulation." With the question left open, we have confronted the problem here, and as our analysis of the statutory language of Exemption 2 and its legislative history demonstrates, Exemption 2 was not designed to protect documents whose disclosure might risk circumvention of agency regulation, whatever would be the merits of such a provision. Exemption 2 is much more limited, as we have described. We thus hold that the documents sought by appellee are not exempt from disclosure under Exemption 2. We now turn to appellant's claim under Exemption 5.
C. Appellant's (b)(5) Claim
At the outset we note the Justice Department's steadily diminishing reliance on Exemption 5 as a ground for withholding these documents. First, the U.S. Attorney's Office denied access by a letter which cited Exemption 5 only as a ground for denying public access. Then, in the District Court, the Government relied on both Exemptions 5 and 2. In this court, in its Original Brief filed before the panel, the appellant Department of Justice relied on § 552(a)(2), Exemption 2, and Exemption 5, in that order, plus a section citing Exemption 7 as "relevant to the intent of Congress."
Exemption 5 of the Act,
From the language of this exemption, it is clear that Congress has attempted to incorporate into the FOIA certain principles of civil discovery law. Specifically, Exemption 5 is designed "to exempt [from disclosure] those documents, and only those documents, normally privileged in the civil discovery context."
In its original brief on appeal the Department of Justice relied on three distinct evidentiary privileges in support of its Exemption 5 claim.
1. The Deliberative Process Privilege Claim
One of the traditional evidentiary privileges available to the Government in the civil discovery context is the common-sense, common-law deliberative process privilege.
As the legislative history makes clear, Congress' principal purpose in adopting Exemption 5 was to protect the confidentiality of the pre-decisional deliberative process. The Senate Report states:
The House Report described the exemption in similar terms:
Guided by these expressions of legislative intent, the cases uniformly hold that Exemption 5 was designed to embody the traditional evidentiary privilege that attaches to predecisional, deliberative communications within an agency.
In order for a written document to be covered by this traditional evidentiary privilege, and hence shielded from disclosure by Exemption 5 of the Act, at least two prerequisites must be met. First, the document must be "pre-decisional." The privilege protects only communications between subordinates and superiors that are actually antecedent to the adoption of an agency policy. Communications that occur after a policy has already been settled upon—for example, a communication promulgating or implementing an established policy—are not privileged. The various rationales for the privilege evanesce once a final policy decision has been reached. Cessat ratione: cessat lex. As the Supreme Court held in NLRB v. Sears:
However, it is not enough that a communication precede the adoption of an agency policy. The second prerequisite to privileged status is that the communication must be "deliberative", that is, it must actually be related to the process by which policies are formulated. As we emphasized in Vaughn v. Rosen, timing alone does not determine whether a specified document is protected by the privilege:
Applying these principles to the documents sought by appellee Jordan in this case, it is clear that neither the withheld portions of the Manual nor the FOT Guidelines falls within the protection for the pre-decisional deliberative process embodied in Exemption 5. Both documents are instructions or guidelines issued by the U.S. Attorney and directed at his subordinates. They consist of positive rules that create definite standards for Assistant U.S. Attorneys to follow. The substantive content of these guidelines has already been determined by the U.S. Attorney. While they may not be absolutely binding on each Assistant, the guidelines do express the settled and established policy of the U.S. Attorney's Office. The Manual and FOT Guidelines thus represent the promulgation and implementation of policies that have already been adopted. Since the Manual and FOT Guidelines undeniably govern all of the office's work, they constitute its "effective policy" and thus are neither "predecisional" nor "deliberative."
2. The Attorney Work Product Claim
In the landmark case of Hickman v. Taylor,
This work-product rule is not limited to private parties; the case law establishes that the privilege applies to the work products of Government attorneys as well.
The Senate Report to the FOIA states that Exemption 5 "would include the working papers of the agency attorney and documents which would come within the attorney-client privilege if applied to private parties."
The work-product rule does not extend to every written document generated by an attorney; it does not shield from disclosure everything that a lawyer does. Its purpose is more narrow, its reach more modest. The Supreme Court articulated the rule's rationale in the Hickman case:
It is clear from this statement that the purpose of the privilege is to encourage effective legal representation within the framework of the adversary system by removing counsel's fears that his thoughts and information will be invaded by his adversary.
In view of the work-product rule's underlying rationale, we think it clear that the Manual and FOT Guidelines sought by appellee do not fall within this privilege. Neither the Manual nor the Guidelines were prepared in anticipation of a particular trial; in fact, they were not even prepared in anticipation of trials in general. Rather, these documents were promulgated as general standards to guide the Government lawyers in determining whether or not to bring an individual to trial in the first place. The guidelines and instructions set forth in these documents do not relate to
3. The Prosecutorial Discretion Privilege
In its initial brief on this appeal, the Department of Justice referred in only one paragraph to the "executive privilege" and lawyers' "work-product" privilege as grounds for withholding portions of the Manual and the FOT Guidelines under Exemption 5.
In spite of its specific, although fleeting, mention of the "predecisional" and "work-product" factors in its Original Brief, supra, in its Reply Brief the Justice Department disclaimed reliance on the executive and work-product privileges and rested its Exemption 5 claim solely on an asserted prosecutorial discretion privilege. The Reply Brief states in pertinent part:
This is the full extent of the Department's argumentation regarding the existence of a so-called "prosecutorial discretion privilege," and we must say that we are somewhat unclear as to exact contours of the privilege asserted.
The Department of Justice acknowledges that appellee Jordan does not seek access to documents reflecting the reasons for prosecution or non-prosecution in particular cases or explaining such decisions. Appellee seeks only policy guidelines and manuals of general applicability, established prior to and independently of a prosecutorial decision in any particular case. The Department's position thus seems to boil down to this: in the prosecution of any particular criminal case, the defense usually cannot discover the various factors and reasonings behind that particular decision to prosecute; therefore, Government guidelines delineating the standards to be applied in all criminal cases to determine which cases shall be diverted from prosecution are not discoverable
The Executive Branch of the Government has, or has claimed, quite a number of unique privileges; some are rooted in the common law, others are purportedly based on constitutional doctrines. The following governmental privileges are well-recognized:
The Department of Justice appears to rest its claim of privilege on essentially two lines of cases. The first line of cases stand for the proposition that a prosecutor's exercise of discretion is not reviewable by the courts. Representative of these cases is our decision in Newman v. United States, where we discussed at length the nature of prosecutorial discretion:
The second line of cases relied on by the Justice Department involve situations in which criminal defendants have challenged
We fail to see how the authorities cited by the Department to Justice support its assertion of a general privilege relating to prosecutorial discretion. The cases regarding the non-reviewability of prosecutorial discretion are simply inapplicable. Our decision today does not challenge these cases. The issue of reviewability is separate and distinct from the issue whether guidelines governing the exercise of prosecutorial discretion should be made available to the public. There are no doubt some who hope that the disclosure of prosecutorial guidelines will lead to judicial review of prosecutorial action based on those guidelines; but, that issue is not before us in this case.
We also find that the selective prosecution cases relied upon by the Department of Justice are distinguishable. These are criminal cases in which defendants are seeking access to the particular reasons for prosecution in individual cases. Even if there is a privilege relating to this type of particularistic information, the case law offers no support for the position that this privilege would extend to guidelines of general applicability established prior to and independently of the decision in any particular case. Moreover, because these cases are criminal, they are governed by criminal discovery
We have thus examined the range of recognized evidentiary privileges and the authorities relied upon by the Department of Justice, and we have concluded simply that no recognized privilege exists such as would protect the withheld portions of the Manual and the FOT Guidelines from disclosure in the civil discovery context. Hence, the district court was correct in holding that Exemption 5 was inapplicable to these documents.
D. Appellant's (b)(7) Claim
Initially the Justice Department relied on one exemption—Exemption 5—in denying appellee Jordan's request for documents. In the District Court, the Department expanded its defense, relying on two exemptions—Exemptions 2 and 5. In its initial appellate briefs in this court, the Department continued its reliance on only these two exemptions, plus a reference to § 552(a)(2).
In our view, this Exemption 7 claim was not timely made by the Department, and consequently there is no need to consider its merits.
It is basic that the FOIA establishes a statutory presumption that all federal records are available to "any person." This presumption is rebutted only by evidence presented by an agency that the item sought is exempt from disclosure under one of the nine enumerated exemptions. The agency bears the full burden of proof when an exemption is claimed to apply.
This principle derives not only from the basic requirements of the FOIA itself, but also from the fundamental precept that issues on appeal are to be confined to those duly presented to the trial court.
From a practical standpoint, there are at least three situations in which an agency might be led to invoke an exemption on appeal for the first time. First, an agency might invoke an exemption for the first time on appeal in order to gain a tactical advantage over the requestor. Clearly, it is not consistent with the broad remedial purpose of the FOIA to permit such agency maneuvering. Second, an agency might be forced to invoke an exemption for the first time on appeal because of a substantial change in the factual context of the case or because of an interim development in applicable legal doctrine. Third, the agency might have an "afterthought" following district court proceedings. Normally, if an agency gives thorough and proper consideration to the disclosability of documents when it should, that is, when it receives the request in the first instance, then it should be able to cite all possibly relevant exemptions well before the appellate stage. However, we recognize that there could be circumstances where, through pure mistake, the Government attorneys had not invoked the correct exemption in the district court. If the value of the material which otherwise would be subject to disclosure were obviously high, e. g., confidential information compromising the nation's foreign relations or national security, and it appeared highly likely was intended to be protected by one of the nine enumerated exemptions, then under 28 U.S.C. § 2106, the appellate court would have discretion to "remand the cause and . . . require such further proceedings to be had as may be just under the circumstances." Such discretion might likewise be exercised in the second example above-cited.
By foreseeing that there may be situations where the appellate court's discretion should be exercised to order a remand for further consideration by the trial court, we do not by any means imply that either the district or appellate court has a free-ranging discretion in FOIA cases. It is a salutary rule, applicable in most cases and in the case at bar, that an appellate court will brush aside a claim put forward for the first time on appeal without reasonable cause or explanation. We find that this case presents no reason that warrants invocation of the residual discretion available under 28 U.S.C. § 2106.
The Department of Justice's position ultimately reduces to a "public policy" argument for maintaining the confidentiality of the Manual and Guidelines sought by appellee Jordan. The assertion is that disclosure of these materials would "tip off" potential violators on how to break the law and avoid prosecution. Thus, according to the Department, releasing these documents will only benefit those who seek to circumvent the law; the law-abiding citizen gains nothing. Moreover, if public announcement of prosecution policy is made, the Department contends, the U.S. Attorney will be placed in the position of giving carte blanche and public encouragement to certain criminal activity. Faced with this situation, the only alternative is to do away with the guidelines and either prosecute every criminal violation, or more likely, allow a policy of non-prosecution of certain offenses to exist on a sub rosa, less controlled, and less uniform, word-of-mouth basis. These arguments have much merit, but they are simply not pertinent to the legal issues posed under the FOIA.
In effect, the Justice Department urges this court to balance the public interest in protecting these particular documents against disclosure against any legitimate interest these plaintiffs or other members of the public may have in utilizing these documents. This is an exhortation to balance disclosure of the individual documents involved in this particular case against the public interest in confidentiality. This the Court cannot do. The Freedom of Information Act certainly does not permit a court to balance the public good or harm involved in a disclosure or confidential retention of any
On reflection, it becomes clear that for a court to balance the public interest in disclosure or nondisclosure, with reference to the particular documents involved in a case, would destroy completely the effectiveness of the Freedom of Information Act. This procedure was what occurred before the passage of the Act in 1966. The whole scheme of the Act, as analyzed above, is to decree: first, in Section 552(a) the particular methods by which all records are to be made available to the public, whether (1) published in the Federal Register, or (2) made available for inspection and copying, or (3) to be made available upon request; and second, following the mandate of disclosure, in Section 552(a) are listed the nine specific enumerated exemptions.
The whole question of whether any Governmental document should be disclosed or protected against disclosure is a matter of public policy for legislative determination in the first instance. There is no constitutional question involved here on which a court might feel free to express itself. The whole question of what is to be disclosed is one on which the Congress has spoken in precise, enumerated detail.
If Congress has erred, Congress has erred, and it is not for this or any other court to rewrite a statute, in which we might consider to have been omitted necessary items in a list of exemptions against disclosure. "[T]he making of such exemptions is the function of the legislature, not the court."
Affirmed as Modified.
BAZELON, Circuit Judge, concurring:
I concur in the court's opinion, and write separately only to stress what I view as an important feature of this decision: hereafter the settled standards which guide the United States Attorney's discretion will be available to the Bench, Bar and the public at large. One of the principal purposes of the Freedom of Information Act is to eliminate "secret law."
Scott v. United States, 136 U.S.App.D.C. 377, 390, 419 F.2d 264, 277 (1969).
The public availability of these general policy manuals will serve fundamental interests in the criminal justice system by helping to assure that the exercise of prosecutorial discretion is even-handed, rational, and consonant with statutory intent, which are touchstones for the proper exercise of such discretion. See, e. g., Hutcherson v. United States, 120 U.S.App.D.C. 274, 284-287, 345 F.2d 964, 972-977 (1965) (Bazelon, C. J., concurring and dissenting), cert. denied, 382 U.S. 894, 86 S.Ct. 188, 15 L.Ed.2d 151 (1965).
I find it appropriate that the Freedom of Information Act, which was designed to shed sunlight on the processes of government, should direct its illuminating rays on this vitally important aspect of the criminal process.
LEVENTHAL, Circuit Judge, joined by SPOTTSWOOD W. ROBINSON, III, Circuit Judge, concurring:
I concur in affirmance. But I have reservations as to certain aspects of Judge Wilkey's opinion concerning Exemption 2.
Exemption 2 provides that the Act does not apply to matters that are—
All agree that the adoption of this wording in 1966 embodied a Congressional policy effectuating a narrower reach for the exemption than that previously provided for "any matter relating solely to the internal management of an agency." Rose, 425 U.S. at 362, 96 S.Ct. at 1600. The issue is the extent of the exemption as narrowed.
The Senate Report stated:
In my view, the critical words of Exemption 2 are "solely" and "internal." Exemption 2 applies only when the matters sought for disclosure are related solely to the internal personnel rules or to the internal practices of an agency.
The focus on what is internal is plain from the summarizing paragraph of Rose. The Rose litigation involved case summaries of honors and ethics hearings prepared by the cadet committee administering the honor code of the Air Force Academy, summaries that had been posted on squadroom bulletin boards and distributed to Academy faculty and officials. The Supreme Court said (425 U.S. at 369-79, 96 S.Ct. at 1603):
What is the legal posture of the situation specifically reserved in the first sentence of the above passage, one "where disclosure may risk circumvention of agency regulation?" Judge Wilkey puts it (at ___-___ of 192 U.S.App.D.C., at 771 of 591 F.2d) that this consideration simply plays no part in triggering Exemption 2. I disagree. In my view, Exemption 2 is applicable where the document consists of internal instructions to such government officials as investigators and bank examiners. In such a case disclosure would permit circumvention of the law, and there is no substantial, valid external interest of the community at large in revelation. That composite presents a matter that involves solely internal personnel rules and internal practices of an agency for purposes of making Exemption 2 applicable.
Judge Wilkey seems to be of the view that this construction is supported solely by the House Report, and that Report must be treated as a nullity. It is plain that the House Report is not as persuasive generally as the Senate Report, which is more congruent with the liberalizing disclosure purpose of the legislation.
Neither Rose, Vaughn II, nor Jordan involves an instance where the Senate Report—which only purports to offer examples of Exemption 2, and not an exhaustive catalog—is flatly inconsistent with the House Report. Judge Wilkey seems to assume that the House Report is to be disregarded if it speaks to a point that is not also addressed in the Senate Report. That is not the sense of the passage quoted from Justice Brennan's opinion.
The Supreme Court was hospitable to the House Report insofar as it provided an "exemption of disclosures that might enable the regulated to circumvent agency regulation." That feature may not be determinative but it is material. And when what is involved are internal instructions to such officials as bank examiners and investigators, and revelation would permit circumvention of law and regulations by the regulated and there is no substantial valid external interest, there is the essential quality of predominant internality
Apart from matters of taste involved in Judge Wilkey's reproach of House members for "chicanery" in interjecting belated legislative history (at ___ of 192 U.S.App.D.C., at 768-769 of 591 F.2d), it should perhaps be brought out that in the spring of 1965, at the outset of the House hearings and months prior to the Senate Report, Congressman John E. Moss, chairman of the subcommittee, while attended by committee
While assistant attorney general Norbert Schlei remarked that different wording would have to be provided to accomplish this objective, he confessedly was "just talking off the top of my head."
Having said all this, I join in the judgment of the court because I do not consider this to be a case of predominant internality, but rather a case of substantial public interest in disclosure that is not offset by an interest in preventing circumvention of law or regulations. The policies involved all relate to post-violation procedures. Defense counsel involved have a legitimate interest in knowing the general guidelines for prosecution vel non. Instructions to Assistant United States Attorneys are directives to a class typically in government service for a relatively modest period of time. When they resign, often to represent defendants, they take with them their knowledge of such guidelines. This is not improper, but other defendants represented by other defense counsel have an interest in equal treatment. The government can phrase its directives to provide escape clauses that permit the exercises of judgment to depart from general prosecution guidelines. The core requirement of Exemption 2 is predominant internality, and in my view that does not fairly characterize the case at bar.
* * * * * *
If Exemption 2 is not to be given this kind of interpretation, then I must acknowledge some sympathy for the opinions that implement the conviction that Congress's actions concerning § 552(a)(2)(C) (for availability of administrative manuals) contains an implication of non-disclosure for enforcement manuals "where the sole effect of disclosure would be to enable law violators to escape detection." Hawkes v. Internal Revenue Service, 467 F.2d 787, 795 (6th Cir. 1972). See also, Cox v. Department of Justice, 576 F.2d 1302, 1309 (8th Cir. 1978): "Thus, FOIA does not require disclosure of any portions of the manual [Drug Enforcement Agency Agents Manual] that relate to housekeeping matters or information that would impede law enforcement efforts."
* * * * * *
Upon consideration of Judge MacKinnon's dissenting opinion, I am inclined to agree that Exemption 7 should be considered in support of the district court judgment, especially in view of the fact that the complaint and the district court relied solely on § 552(a)(2) and the majority proceeds on a different ground. However, I am of the view that this case does not trigger Exemption 7, which only applies to "investigatory records compiled for law enforcement purposes." What is before us are general instructions to, and manuals for, prosecutors that enter the picture only after an investigation has been completed. The request for documents, if granted, would not reveal any "investigatory records" protected by Exemption 7, or present any of the specific harms to the law enforcement process that Exemption 7, as amended, was intended to avoid.
In its construction of § 552(a)(2)(C) the majority opinion by Judge Wilkey holds that the prosecuting instructions issued by the United States Attorney to aid his assistants are exempt from disclosure because of the congressional intent expressed in the committee reports they constitute "instructions to Government personnel prosecuting cases in court" and "`law enforcement matters' . . .— both the Manual and the Guidelines—[that] fall within this description of non-covered materials." Maj. Op., p. ____ of 192 U.S.App.D.C., p. 760 of 591 F.2d. Yet, in the very next sentence the majority holds that the prosecution instructions are not exempt from disclosure. Maj. Op., p. ____ of 192 U.S.App.D.C., p. 760 of 591 F.2d; see id. pp. _______ of 192 U.S.App.D.C., pp. 759-761 of 591 F.2d. In so ruling the majority violate the clear intent of Congress and the fundamental rule of statutory interpretation that a specific provision overrides a general provision addressed to the same concern. From such construction I respectfully dissent.
1. Section 552(a)(2) and the Specific Intent of Congress.
The construction indulged in by the majority opinion is reached by restricting (a)(2) to exempting prosecution instructions only from indexing and disclosure and then going on to hold that such exemption from disclosure is meaningless and that all such records are obtainable under (a)(3)
Subsection (a)(1) of § 552 requires that certain material be published in the Federal Register; (a)(2) requires "administrative staff manuals and instructions to staff that affect a member of the public" (emphasis added) to be made available for public inspection and copying; and (a)(3) provides that, except with respect to records made available under (a)(1) and (a)(2), each agency "upon any request" which "reasonably describes such records," and complies with agency rules as to time, place, fees and procedures, shall make the records promptly available to any person.
In enacting these provisions the Senate Committee Report specifically stated that it intended by its reference to "administrative staff manuals" in § 552(a)(2)(C)
S.Rep.No.813, 89th Cong., 1st Sess. 2 (1965) U.S.Code Cong. & Admin.News 1966, p. 2418 (emphasis added). There is nothing in the congressional intent so expressed to indicate that the Senate intended it to be restricted to exempting the disclosure of such records solely from indexing and disclosure and not from those provisions of the act that require only disclosure. In this respect the majority misread the statute. See Maj. Op., pp. ____ of 192 U.S.App.D.C., pp. 760-761 of 591 F.2d. Indexing of orders, opinions, instructions, etc., is not a requirement for exempting such records from disclosure but is only required if the agency seeks to rely thereon, use, or cite them as precedent against a party other than an agency, per § 552(a)(2)(C).
It is also of utmost significance to the issue with which we are confronted to note that the Senate indicated by its Committee Report, supra, that the statute was specifically providing for such exclusion from disclosure of such instructions because of the "traditional confidential nature of [prosecution] instructions." Thereby the Senate referred to the common law attorney-client privilege and Congress indicated that it intended
NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 154, 95 S.Ct. 1504, 1518, 44 L.Ed.2d 29 (1975) (emphasis added). In Mead Data Cent. Inc. v. U.S. Dept. of Air Force, 184 U.S.App.D.C. 350, 566 F.2d 242 (1977), we also recognized that the Department of the Air Force as an agency of Government was entitled to the same privilege as a private client for its "confidential communications to [its] attorney." In his dissent in Mead Data, Judge McGowan also recognized the privilege and would have applied it more broadly than the majority. 184 U.S.App.D.C. 371-372, 566 F.2d at 263-264.
The House Committee Report, in addition to that of the Senate, also included a statement indicating an intent to exempt from disclosure those "prosecution . . . staff manuals and instructions which set forth ["prosecution"] criteria or guidelines for the staff . . . ." And the House Report further indicated that it intended such interpretation to apply to all of S. 1160 and not to be confined solely to (a)(2) as the majority opinion contends:
H.R.Rep.No.1497, 89th Cong., 2d Sess. 7-8 (1966) U.S.Code Cong. & Admin.News 1966, p. 2424 (emphasis added). The statement italicized above is a continuation of the reference in the prior sentence to all provisions "under S. 1160." Thus, the language of the Report indicates a clear legislative intent to exempt from disclosure "under S. 1160"—i. e., the entire act, not just (a)(2)—those "staff manuals and instructions which set forth criteria or guidelines for the staff in . . . the selection or handling of cases . . . or criteria for . . .
And when the Senate Report refers to the "traditional confidential nature of [prosecution] instructions" and thereby indicates it is recognizing the common law privilege of such material, it indicates an additional intent that such material should be exempted from all disclosure requirements of the FOIA. It would be the height of absurdity to construe such recognition of the traditional confidential nature of prosecution instructions as being limited only to exemption from indexing, which is not required except for secret law. That would be no recognition at all of the traditional confidential nature of such instruction which is grounded in the traditional attorney-client relationship that exists between the Government and its prosecutors. See, p. ___ of 192 U.S.App.D.C., at pp. 786-787 of 591 F.2d supra. Thus, according to the intent expressed by both Houses, the specific exemption from disclosure extends to the entire Act including (a)(2) and (a)(3), and the last sentence of subsection (b). Cf. Maj. Op. p., ___ of ___ U.S.App.D.C., at p. 763 of 591 F.2d.
2. The Interpretation of Conflicting Specific and General Statutory Provisions.
In addition to the above interpretation based upon the specific intent expressed by both Houses of Congress recognizing the traditional confidential nature of such material and excluding prosecution instructions from all disclosure "under S. 1160" [the Act], such interpretation is also required by that rule of statutory construction which requires the specific exemption in (a)(2) to control the subsequent general provision of (a)(3) with which it might conflict. As the Supreme Court stated in Fourco Glass Co. v. Transmirra Corp., 353 U.S. 222, 77 S.Ct. 787, 1 L.Ed.2d 786 (1957):
353 U.S. at 228-29, 77 S.Ct. at 791. This principle was recently reiterated in Simpson v. United States, 435 U.S. 6, 98 S.Ct. 909, 55 L.Ed.2d 70 (1978), where Justice Brennan remarked:
435 U.S. at 15, 98 S.Ct. at 914.
With respect to this conflict in the FOIA Professor Davis stated:
K.C. Davis, Administrative Law in the Seventies 57 (1976).
195 U.S. at 125, 24 S.Ct. at 803. United States v. Salen, 235 U.S. 237, 249, 35 S.Ct. 51, 59 L.Ed. 210 (1914); United States v. Stever, 222 U.S. 167, 32 S.Ct. 51, 56 L.Ed. 145 (1911); Kepner v. United States, 195 U.S. 100, 24 S.Ct. 797, 49 L.Ed. 114 (1904); FTC v. Manager, Retail Credit Co., Miami Branch Office, 169 U.S.App.D.C. 271, 276-77, 515 F.2d 988, 993-94 (1975); Maiatico v. United States, 112 U.S.App.D.C. 295, 300-01, 302 F.2d 880, 885-86 (1962); American Telephone and Telegraph Co. v. FCC, 487 F.2d 864, 877 n.26 (2d Cir. 1973); Monte Vista Lodge v. Guardian Life Ins. Co. of America, 384 F.2d 126, 129 (9th Cir. 1967), cert. denied, 390 U.S. 950, 88 S.Ct. 1041, 19 L.Ed.2d 1142 (1968); Cuevas v. Sdrales, 344 F.2d 1019, 1020-21 (10th Cir. 1965), cert. denied, 382 U.S. 1014, 86 S.Ct. 625, 15 L.Ed.2d 528 (1966); United States ex rel. Chapman v. FPC, 191 F.2d 796 (4th Cir. 1951), aff'd 345 U.S. 153, 73 S.Ct. 609, 97 L.Ed. 918 (1953); Buffum v. Chase Nat. Bank of City of New York, 192 F.2d 58, 61 (7th Cir. 1951), cert. denied, 342 U.S. 944, 72 S.Ct. 558, 96 L.Ed. 702 (1952). Cf. United States v. Powell, 423 U.S. 87, 96 S.Ct. 316, 46 L.Ed.2d 228 (1975); United States v. Alpers, 338 U.S. 680, 682-83, 70 S.Ct. 352, 94 L.Ed. 457 (1950); Gooch v. United States, 297 U.S. 124, 128, 56 S.Ct. 395, 80 L.Ed. 522 (1936). It therefore clearly appears from the specific intent expressed in the Committee Reports and the applicable principles of statutory interpretation as recognized by the Supreme Court that Congress must be recognized by the foregoing specific expressions of intent to have purposely intended to exempt prosecution instructions from all disclosure and that it did not commit "legislative error" in doing so to arrive at "a somewhat peculiar regime." Cf. Wilkey, J., Opinion at p. ___ of 192 U.S.App.D.C., at p. 762 of 591 F.2d. Actually the novel claim of "legislative error" is an imaginative creation of the writer that was induced by an approach which applied a wooden interpretation to the entire statute. Such approach finds it impossible to recognize that Congress by (a)(2)(C) specifically exempted prosecution instructions—which all admit—and that such exemption is just as much "specifically stated in . . . section [§ 552]," see subsection (C), as any of the nine exemptions set forth in subsection (b). The intent of Congress with respect to both subsection (C) and the nine exemptions is to be determined from the language of the statute and from the Committee Reports. It appears that one of the basic defects in the majority opinion is its inability to recognize that both the House and Senate Reports also indicate the congressional intent of the statutory language.
3. The Majority's Treatment of the Exemptions and its Interjection of Subsection (a)(3) of section 552.
Since the legislative intent of both Houses with respect to (a)(2), as the majority opinion admits, plainly exempts "prosecuting . . . instructions," it is not necessary to find an additional exemption from disclosure in (b)(2) dealing with "internal personnel rules and practices of an agency", or in (b)(5) exempting certain "inter-agency or intra-agency memorandums", or in (b)(7) which exempts certain "investigatory records compiled for law enforcement purposes." However, it is perfectly clear that when the Senate Committee Report based its exemption of "prosecuting . . . instructions" upon their "traditional confidential nature" and indicated that the exemption, so based, extended not just to (a)(2) but to the entire act, that the (b)(5) exemption when it refers to "intra-agency memorandums . . . which would not be available by law to a party other than an agency in litigation with an agency" embodies the common law attorney-client privilege for prosecutorial instructions which the Senate Report encompassed. See p. ___ of 192 U.S.App.D.C., p. 786 of 591 F.2d, supra.
The discussion of (b)(2) and (b)(5) in Ginsburg, Feldman & Bress v. Federal Energy Administration, 192 U.S.App.D.C. ___, 591 F.2d 717 (1978), is also applicable here to a considerable extent. But since the instant documents are completely exempted by
With respect to Exemption 7, Ginsburg did not rely thereon as an additional basis for not requiring disclosure, but instead addressed (b)(7) merely as exemplary of the scheme and general intent of the Act. See id., at note 27 and accompanying text. While (b)(7) may have a stronger influence here it also has much the same significance that it occupied with respect to the Ginsburg records. Subsection (b)(7)(E) plainly indicates an intent to protect "investigative techniques and procedures" in law enforcement investigatory records. That being its intent it would hardly be sensible to attribute a contradictory intent to Congress to protect such procedures in investigatory documents and not in more general instructions to prosecutors. While this provision is not aimed directly at exempting prosecution instructions or manuals, except as the prosecuting instructions might be a part of investigatory records, it certainly is another instance where the Senate and the House agreed by specific language that both Houses intended to exempt law enforcement records that disclose investigative procedures. Prosecutorial instructions which specify offenses that should and should not be prosecuted constitute a significant part of "law enforcement . . . investigative . . procedures."
The majority opinion, however, refuses to discuss (b)(7) because it is asserted that the "claim was not timely made by the Department [of Justice], and consequently there is no need to consider its merits." Wilkey, J., Opinion at ___ of 192 U.S.App.D.C., at 779 of 591 F.2d. The majority opinion further states:
Maj. Op., at pp. ___, ___ of 192 U.S.App.D.C., at p. 779 of 591 F.2d. The majority opinion then engages in an extraneous discussion of situations where an issue is raised for the first time on appeal. This is almost complete dicta but it ends up by admitting, somewhat reluctantly, that appellate courts have some limited discretion particularly because of 28 U.S.C. § 2106.
In my opinion the rule is not as restrictive or limited as the majority opinion states. To my mind on an appeal in a civil case from a district court there is a considerable discretion vested in the appellate court which may vary dependent upon the nature of the issue, the nature of the new authority and to a considerable extent upon the certainty to which the issue may be resolved. If the issue requires the presentation of facts which were not developed below, or seeks to give a new ground for relief unrelated to the argument in the trial court or to raise a new cause of action, as was the case in Doe v. McMillan, 148 U.S.App.D.C. 280, 287, n.10, 459 F.2d 1304, 1311 n.10 (1972), reversed on other grounds, 412 U.S. 306, 93 S.Ct. 2018, 36 L.Ed.2d 912 (1973); see Ginsburg, supra, at note 34, or involves an administrative proceeding where the agency must explicate the
Thus, when a matter first presented on appeal is in the nature of additional support resulting from further research for a point already raised, or results as the majority recognizes "because of an interim development in applicable legal doctrine," Maj. Op. p. ___ of 192 U.S.App.D.C., at p. 780 of 591 F.2d (which is just this case with respect to Exemption 7) more latitude in considering the new ground is generally recognized to exist. Not recognizing this flexibility would amount to ignoring the authority given appellate courts by 28 U.S.C. § 2106, to "require such further proceedings to be had as may be just under the circumstances." I dissent from the majority's declaration that the law on the subject is as positively prohibitory as is indicated by its statement in the foregoing opinion, Maj. Op., pp. ___-___ of 192 U.S.App.D.C., at pp. 779-780 of 591 F.2d.
What happened here, and it must be presumed to happen in many FOIA cases, is that when the application was first made the agency denied it upon a single ground that it considered to be plain and determinative. With the tremendous quantity of FOIA cases that are developing I could not find a failure to file a completely exhaustive response to be unreasonable. There certainly is a great economy of time in so acting and not requiring that the statute and the decisions be fine combed to discover and assert every conceivable supporting authority. Doubtlessly the single ground is determinative of a great many requests. The same situation, and somewhat the same justification, develops to a lesser degree before the district court, particularly when the agency feels it has asserted conclusive legal authority for its action. The Agency may then see no necessity for asserting every cumulative authority. However, when its basis of decision is found to be insufficient and an appeal is necessary to this court it then feels it is necessary to marshall all its authority. That is how these situations arise and I feel that they should be dealt with realistically and where the new ground is raised because of a new decision, and same can be considered on the existing factual record made before the district court, I see no necessity, barring some other motivating consideration, to remand the case or to refuse to consider the legal authority so raised. In this case the Exemption 7 issue was raised because of our panel decision in Ginsburg, Feldman & Bress v. Federal Energy Administration, 192 U.S.App.D.C. ___, 591 F.2d 717 (1978), which is today affirmed en banc by an equally divided court.
However, where a new cause of action is sought to be raised for the first time on appeal, as appellants attempted before our court in Doe v. McMillan, 148 U.S.App.D.C. 280, 284 & n.10, 459 F.2d 1304, 1308 & n.10 (1972), rev'd on other grounds, 412 U.S. 306, 93 S.Ct. 2018, 36 L.Ed.2d 912 (1973), an appellate court obviously should refuse to consider it. Our opinion in Doe does not support the contention for which it is cited by the majority.
It is thus my view that since the Government did raise Exemption 7 in its original
However, regardless of what the majority does with the 7th exemption, it is my view that the majority opinion excessively limits the discretion that the courts of appeals and the Supreme Court may exercise with respect to considering authorities that are delayed in presentation but still may determine a controversy or furnish a basis for or influence a decision. In my view the majority opinion in this respect is far too dogmatic and in that excess of zeal and certainty of its own opinion it has actually blinded itself so that it cannot see that in this very case it has committed the very vice it railes against.
The complaint here in Jordan is based solely upon the claim that § 552(a)(2)(B) and (C) entitle plaintiff to the relief he requests. App. 6. Jordan argued his case on that basis. App. 53, 52-58. And the Order and Judgment of the District Court is based solely upon § 552(a)(2)(B) and (C). App. 76-77. Furthermore, in this court the majority agree that Jordan and the district court were in error in claiming and holding that (a)(2) required access to the requested records. This error is articulated by the majority opinion as follows:
Maj. Op., p. ___ of 192 U.S.App.D.C. at p. 763 of 591 F.2d (emphasis in original).
Then, in the very next sentence the majority proceeded to insert for the first time in this case a basis for decision that was never referred to in the pleadings, never discussed by either party in oral argument before the district court, never referred to or relied upon by the judgment of the district court, never referred to in any briefs to this court and never mentioned by either party in oral argument before this court en banc. Nevertheless, the next line of the majority opinion for the first time interjected a new theory for disclosure based on another subsection of the act, saying:
Maj. Op., p. ___ of 192 U.S.App.D.C. at p. 763 of 591 F.2d (emphasis in original). And it is upon the basis of subsection (a)(3) that the majority bases its decision that the records in question are disclosable notwithstanding its conclusion that they are exempted by (a)(2), the only subsection previously relied upon or discussed in the entire case. Thus, apart from its erroneous construction of (a)(3), which is pointed out above, the majority also violates its own pronouncement in considering and relying upon a section of the statute, and a theory for its construction, that had never previously been raised by anyone—anywhere. If the construction so belatedly advanced were sound, this contradiction of its announced principle which would preclude consideration of exemption 7 might have some justification, but, violating as it does sound rules of statutory construction it is in error in that respect as well as contrary to the majority's extravagant dicta which would unreasonably restrict appellate consideration strictly to matters and authority raised at the hearing stage. Actually, consideration of exemption 7 which was first mentioned by appellants in their initial brief would be a far lesser violation of the rule limiting appellee consideration as announced by the majority than the majority's interjection of subsection (a)(3) which never appeared in this case until the majority opinion was circulated.
4. The Sunshine Act.
Before proceeding with the discussion of the subject it should be noted that by interjecting the Sunshine Act argument the majority is interjecting this argument in its opinion for the first time in the case, contrary to the earlier condemnation of such procedure.
5 U.S.C. § 552b(c)(7). Written or oral instructions to investigators are a part of the "investigatory record" and it is too clear for argument that disclosure of prosecutorial instructions announcing that some violations might be prosecuted and others might not would certainly interfere with enforcement proceedings. These instructions are thus exempted by Exemption (7) of the Sunshine Act the same as they are by the Exemption (2) of the FOIA. But this case does not involve a Sunshine Act claim. The prosecution instructions also fall in the category of "guidelines . . . for Government investigators" that are exempted by § 552(b)(2) as explained by the House Report to the FOIA. See Ginsburg, at ___ of 192 U.S.App.D.C., at 723 of 591 F.2d.
It is also a gross mistake for the majority opinion at ___-___ of 192 U.S.App.D.C., at 767-768 of 591 F.2d to overlook the fact that the House Committee Report, in expressing its intent with respect to Exemption 2 did not expand that exemption but generally restricted what might have been held to be exempted by "practices of an agency." If one were to look only to the Senate Committee Report as the majority urge, "practices of an agency" might have been construed as including "matters of internal management." Ginsburg, supra, at ___-___ of 192 U.S.App.D.C., at 726 of 591 F.2d. Thus, the House Committee Report actually closed a potentially large loophole when it stated that its intent in Exemption 2 was to exempt from disclosure "operating rules, guidelines, and manuals of procedure for government investigators or examiners . . ." H.R.Rep.No.1497, 89th Cong., 2d Sess. 10 U.S.Code Cong. & Admin.News 1966, p. 2427 (May 9, 1966) (footnote omitted).
It is also fatal to the argument advanced by the majority with respect to (b)(2) and the Sunshine Act that substantially the same exemption from disclosure, as the Government asserts, had been expressed earlier in the Committee Reports on the FOIA by both houses. The Senate Report had stated:
S.Rep.No.813, 89th Cong., 1st Sess. 2, 7 (1965) (emphasis added). (See also p. ___ of 192 U.S.App.D.C., pp. 786-787 of 591 F.2d, supra.) The House Report had expressed a similar intent:
H.R.Rep.No.1497, 89th Cong., 2d Sess. 7-8 (1966) U.S.Code Cong. & Admin.News 1966, pp. 2424-2425 (emphasis added). (See also pp. ___-___ of 192 U.S.App.D.C., pp. 787-788 of 591 F.2d, supra.) Jordan cannot overcome these expressions of legislative intent. Try as the majority may to inject some dispute between the two houses, or some deficiency in the expression of legislative intent, the two quotations above indicate their concurrence in exempting prosecution guidelines in law enforcement matters.
5. The Unsupported Charge by the Majority Opinion of "Chicanery" by the House Committee on Interstate and Foreign Commerce.
The majority opinion charges the House Committee on Interstate and Foreign Commerce (which was spearheaded by Representative Moss) with "chicanery" in attempting to inject improper congressional intent into the Senate bill through the House Committee Report. Time and space do not permit refutation of that charge except insofar as it may be relevant to this case—i. e., to Exemption 2.
When the bill reached the House from the Senate, the Senate Committee Report with respect to Exemption 2 only gave a few "[e]xamples" of the types of "rules" it was exempting from disclosure. It made no reference to the "practices of an agency." Thus, if no further committee explanation of Exemption 2 were given the "practices of an agency" would be wide open to be given their normal meaning and that might be held to constitute a very broad exemption. It might even be deemed to cover "matters of internal management" as the Act previously provided. However, one of the principal purposes of the bill was to repeal the "internal management" exemption which was a feature of the then existing law. "Practices of an agency" would also cover investigatory practices and many other practices, and all practices would be exempt from disclosure unless some limitation were placed on the statutory language. This was the possible construction that had crept into the bill when it reached the House.
Thus, because the Senate Committee Report left the "practices of an agency" part of the Exemption open to a very broad interpretation, which admittedly none of the authors ever intended, the House Committee Report went ahead and severely and specifically limited the breadth of the Exemption practically to operating rules, guidelines and investigatory manuals. It also further restricted the Exemption by providing that specific "matters of internal management" such as "employee relations and working conditions and routine administrative procedures" must be disclosed. The majority opinion mistakenly views this House action as broadening the Exemption. In reality the House Report closed a big loophole as is shown at pages ___-___ of 192 U.S.App.D.C., at pages 792-793 of 591 F.2d, supra. With respect to investigatory manuals it did nothing more than state the precise intent elsewhere stated by the Committee Reports in both the Senate and House with respect to administrative staff manuals, i. e., to exempt law enforcement matters and staff manuals and instructions which set forth criteria or guidelines for the staff in the handling of cases such as criteria for prosecution of cases (Ginsburg, supra at pp. ___-___ of 192 U.S.App.D.C., at p. 719 of 591 F.2d). And as to "matters of internal management" there is no disagreement that both Houses intended to repeal that existing statutory exemption. Thus, the House Report did a more workmanlike job in setting forth the admitted intent of both Houses on Exemption 2.
As to the charge of "chicanery" with respect to Exemption 2 the open proceedings in Congress completely belie the accusation. First, Congressman Moss, the principal House author of the bill and the acknowledged father of the Freedom of Information Act, stated publicly on the very first day of the House hearings, March 30, 1965, that the intent of Exemption 2 was to exempt operating rules, guidelines and certain
Thus, no person can contend that something deceitful was being done with respect to Exemption 2 when the House subsequently did precisely what the principal author of the bill publicly stated they intended to "work at." Nor can it be contended that the Senate did not have ample opportunity to be informed of the House position.
Fourth, the charge made in Ginsburg, supra (see Dissent at ___ of 192 U.S.App.D.C., at 746 of 591 F.2d) that there was some sinister "last minute chicanery by interested members of the House . . . just as the full committee in the House was about to report out the bill. . . ." (emphasis added), insofar as said charge is made with respect to Exemption 2, is flawed by the fact that committee reports are usually prepared near the final stage of a bill's passage. In view of the public statement of Congressman Moss made on March 30, 1965, over 13 months before the House Committee Report was filed on May 9, 1966 (H.Rep.No.1497, 89th Cong., 2d Sess. U.S.Code Cong. & Admin.News 1966, p. 2418), it cannot be contended that the portion of the report dealing with Exemption 2 constituted "last minute chicanery."
6. Miscellaneous Comments.
(a) The majority opinion states that several witnesses told the Senate, meaning the Senate subcommittee, that the exemptions would have to be expanded if it was desired to "protect investigative manuals." See Maj. Op., at ___ of 192 U.S.App.D.C., at 766 of 591 F.2d. None of these witnesses were Senators and their statements do not constitute expressions of congressional intent. The statements referred to are also greatly weakened as to any possible weight by the fact that they were made on May 12, 14, and 21 in 1965 before the Senate Committee Report was filed on October 4, 1965. They thus have little or no force. Their comments are entitled to no weight whatsoever as expressions of legislative intent of the Senate. Similarly, those comments in the House Hearings which were "off the top of [the] heads" of certain participants, not members of the House, are similarly not reflective of congressional intent.
(b) The majority opinion cites certain passages from Department of the Air Force v. Rose, 425 U.S. 352, 96 S.Ct. 1593, 48 L.Ed.2d 11 (1976), but the significant feature of that opinion is that it leaves open for future decision the fate of a claim under the FOIA "where disclosure may risk circumvention of agency regulation." 425 U.S. at 369, 96 S.Ct. at 1603. While the prosecution instructions here do not present the same clear-cut case as is presented by Ginsburg, the facts here are sufficiently similar to conclude that the question here is also open. See concurring opinion of Judge Leventhal.
(c) The statement of the majority opinion at ___ of 192 U.S.App.D.C., at 775 of 591 F.2d that "[n]either the Manual nor the [FOT] Guidelines . . . sought by appellee . . . were . . . even prepared in anticipation of trials in general" seems to be patently incorrect.
(d) In conclusion, I state my agreement with the statement in Judge Leventhal's opinion that:
(e) In my view, the majority opinion casts the statute and the issues here in a static mold and attempts to fit the facts of this case into a stereotype pattern that is contrary to both the character of the records here sought and the provisions of the statute and legislative history that applies thereto. What the majority opinion really does is rely solely on its insensitive construction of the bare language of the statute and ignore completely all congressional intent specifically expressed in the committee reports except for a monetary recognition of the intent expressed with respect to § (a)(2), which the opinion immediately negates.
To the extent expressed above I respectfully dissent from the majority opinion. Judge Robb joins in the foregoing opinion.
Cases which have given a broad interpretation to Exemption 2 have not set "practices of an agency" apart from "internal personnel rules." See Tietze v. Richardson, 342 F.Supp. 610 (S.D.Tex.1972); Cuneo v. Laird, 338 F.Supp. 504 (D.D.C.1972), rev'd on other grounds sub nom. Cuneo v. Schlesinger, 157 U.S.App.D.C. 368, 484 F.2d 1086 (1973), cert. denied sub nom. Vaughn v. Rosen, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974); City of Concord v. Ambrose, 333 F.Supp. 958 (N.D.Cal.1971).
See n. 3, infra. (Emphasis added).