Opinion for the Court filed by District Judge GASCH.
GASCH, District Judge:
This Freedom of Information Act (FOIA)
At issue in this litigation are approximately five hundred thousand pages of documents
Because even this limited request encompassed a massive number of documents, FCG agreed to allow WSPF more than the ten day time period prescribed by 5 U.S.C. § 552(a)(6)(A) to respond fully to its request. After reviewing the entire "Townhouse" file, WSPF released a few documents but withheld the vast majority in reliance on one or more FOIA exemptions. FCG requested immediate review of representative documents from the I.T.T. and Hughes-Rebozo files. After these requests were treated in a similar fashion, FCG commenced this action in the district court on September 30, 1976.
Shortly after filing the complaint, FCG made a motion to require WSPF to produce an index of the withheld documents in accordance with the dictates of Vaughn v. Rosen, 157 U.S.App.D.C. 340, 484 F.2d 820 (1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974). WSPF opposed the Vaughn motion and moved for a stay of proceedings in accordance with 5 U.S.C. § 552(a)(6)(C).
In April 1977, FCG suggested that, rather than continue a document by document review, WSPF review the closing memoranda of each of the six investigations. Shortly after the parties had struck this agreement, WSPF was finally terminated and custody of the documents was transferred to the National Archives and Records Service (NARS). NARS completed the review of the closing memoranda, including those of the Townhouse file, the I.T.T. file and the Hughes-Rebozo file which had previously been reviewed by WSPF. As a result of this review, a substantial amount of information not previously made available was released.
As to the information still being withheld, NARS filed affidavits, detailed Vaughn indices and copies of the redacted documents with the district court. NARS
A. Exemptions Pursuant to 5 U.S.C. § 552(b)(7)(C)
NARS contends, and the district court concluded, that a substantial amount of information contained in these files is properly exempt from disclosure under FOIA Exemption 7(C). That section exempts from the FOIA mandatory disclosure requirements:
5 U.S.C. § 552(b)(7)(C). FCG apparently concedes for the purpose of this appeal that the information in question is contained in "investigatory records compiled for law enforcement purposes."
The district court upheld the invocation of Exemption 7(C) for the following three general categories of information: (1) information which would reflect investigations of allegations of possible wrongdoing by individuals who were neither indicted nor prosecuted; (2) information which revealed facts pertaining to individuals who were not the targets of investigation; and (3) information which would reveal the identity of a confidential source.
Appellant contends that the district court failed to properly balance these competing interests in this case. Appellant argues that most of the information in question was not properly within Exemption 7(C) because the individuals to whom it relates are high level government and corporate officials whose interest in privacy is at best minimal. FCG further urges that, in any event, this type of information is not of the type contemplated by the FOIA privacy exemptions. Finally, FCG argues that the district court underestimated the public interest in disclosure of this information.
At the outset, it should be noted that, while similar in scope and application, Exemptions 6 and 7 of the FOIA are distinguishable in two significant respects. First, while Exemption 6 refers to "a clearly unwarranted invasion of personal privacy," Exemption 7(C)'s reference is to an "unwarranted invasion of personal privacy." The omission of the word "clearly" from the Exemption 7(C) standard was a considered choice made during the passage of the 1974 amendments to that section, Pub.L. No. 93-502, § 2(b), 88 Stat. 1563,
Furthermore, this second distinction serves to illuminate the reasoning behind the first. As Judge Pratt observed in Congressional News Syndicate v. United States Department of Justice, 438 F.Supp. 538 (D.D.C.1977):
438 F.Supp. at 541. Thus, it is apparent that, contrary to appellant's contention, information in an investigatory file tending to indicate that a named individual has been investigated for suspected criminal activity is, at least as a threshold matter, an appropriate subject for exemption under 7(C). Baez v. Department of Justice, 208 U.S.App.D.C. 199, 209, 647 F.2d 1328, 1338 (1980); Kuehnert v. FBI, 620 F.2d 662, 667 (8th Cir. 1980) (citing Librach v. FBI, 587 F.2d 372, 373 (8th Cir. 1978), cert. denied, 440 U.S. 910, 99 S.Ct. 1222, 59 L.Ed.2d 459 (1979); Maroscia v. Levi, 569 F.2d 1000, 1002 (7th Cir. 1977)).
Having determined that this information falls within the threshold requirements of Exemption 7(C), the question remains whether the district court properly struck the balance between the public interest in disclosure and the individual's interest in privacy. The traditional role of the prosecutor in our criminal justice system provides a relevant background against which to address the issues raised by this appeal.
As the district court properly noted, the decision to prosecute an individual for a crime is one typically entrusted solely to the prosecutor's discretion and rarely subject to judicial review or public scrutiny. 485 F.Supp. at 6; see Newman v. United States, 127 U.S.App.D.C. 263, 264, 382 F.2d 479, 480 (1967). See also United States v. Bell, 165 U.S.App.D.C. 140, 155, 506 F.2d 207, 222 (1974). The exercise of that discretion is properly informed by a variety of factors and not solely by the prosecutor's determination of the prognosis for a successful prosecution. Nader v. Saxbe, 162 U.S.App.D.C. 89, 92 n.18, 497 F.2d 676, 679 n.18 (1974).
The decision to prosecute an individual for a crime is attended by consequences beyond the risk of conviction. When the individual or the crime has attracted general notoriety, institution of proceedings typically provokes widespread speculation attended by at least some damage to the reputation of the individual involved. Common experience teaches that this speculation is not quieted when, and if, a jury finally announces its verdict. Typically, the decision not to prosecute insulates individuals who have been investigated but not charged from this rather significant intrusion into their lives. In Baez v. Department of Justice, 208 U.S.App.D.C. 199, 647 F.2d 1328 (1980), this Court quoted with apparent approval from an affidavit submitted to the district court prepared by an agent of the Federal Bureau of Investigation as follows:
208 U.S.App.D.C. at 209, 647 F.2d at 1338. Obviously, this is true, with equal if not greater force, as it pertains to individuals who were the subjects of investigations by WSPF.
Appellant contends, however, that where, as here, the individuals are public figures, high level government or corporate officials, their privacy interests are entitled to little, if any, consideration. This Court has already explicitly rejected the proposition that government officials, by virtue of their positions, forfeit their personal privacy for FOIA purposes. Baez v. Department of Justice, 208 U.S.App.D.C. at 210, 647 F.2d at 1339; Lesar v. Department of Justice, 204 U.S.App.D.C. at 215, 636 F.2d at 487; accord, Nix v. United States, 572 F.2d 998, 1006 (4th Cir. 1978); Maroscia v. Levi, 569 F.2d at 1002.
202 U.S.App.D.C. at 184, 628 F.2d at 184 (footnotes omitted).
We might be persuaded under appropriate circumstances that an individual's status as a "public figure" would tip the 7(C) balance in favor of disclosure. This is not, however, such a case. While such a status might somewhat diminish an individual's interest in privacy, the degree of intrusion occasioned by disclosure is necessarily dependent upon the character of the information in question. As we have already indicated, revelation of the fact that an individual has been investigated for suspected criminal activity represents a significant intrusion on that individual's privacy cognizable under Exemption 7(C). The degree of intrusion is indeed potentially augmented by the fact that the individual is a well known figure and the investigation one which attracts as much national attention as those conducted by the WSPF.
Likewise, we cannot say that in conducting the balance the district court gave insufficient weight to the public's interest in disclosure. In finding that the public interest in disclosure was insufficient to overcome the legitimate privacy interests of the individuals in question, the district court observed:
485 F.Supp. at 6. This assessment standing alone might appear to understate the public interest in disclosure. When viewed within the total context of this case, however, it appears to express a view which we endorse, that the legitimate and substantial privacy interests of individuals under these circumstances cannot be overridden by a general public curiosity. Rushford v. Civiletti, 485 F.Supp. 477, 479-80 (D.D.C.1980), aff'd mem., 656 F.2d 900 (D.C.Cir. 1981).
In sum, we do not state a per se rule that, in every case where individuals have been investigated but not charged with a crime, that information is properly exempt from disclosure under Exemption 7(C). We adhere to the view that any per se approach would be inconsistent with the Court's duty to balance de novo the privacy interests at stake against the public interest in disclosure. We do observe, however, that release of this type of information represents a severe intrusion on the privacy interests of the individuals in question and should yield only where exceptional interests militate in favor of disclosure.
B. Exemptions Pursuant to 5 U.S.C. § 552(b)(3) and Fed.R.Crim.P. 6
The district court found that a substantial amount of information deleted from the documents was properly withheld on the basis of FOIA Exemption 3 which exempts from the Act's mandatory disclosure requirements:
5 U.S.C. § 552(b)(3). In this case, NARS and the district court relied upon Fed.R.Crim.P. 6(e), 18 U.S.C., as a relevant statute. Rule 6(e), which is reprinted in pertinent part below, provides, with certain exceptions, a prohibition on disclosure of "matters occurring before the grand jury."
1. Rule 6(e) as a Statute Under Exemption 3
At the outset, appellant contends that the district court's reliance on Rule 6(e) was misplaced because the Rules of Criminal Procedure do not qualify as statutes for Exemption 3 purposes. The contention finds its genesis in this Court's decision in Founding Church of Scientology v. Bell, 195 U.S.App.D.C. 363, 603 F.2d 945 (1979) (per curiam). In Scientology, this Court held that a protective order entered in other litigation between the parties pursuant to Fed.R.Civ.P. 26(c) did not serve as an appropriate basis for invocation of Exemption 3 because the rule simply was not a statute.
Congress has delegated authority to prescribe rules for the conduct of criminal litigation in the federal courts to the United States Supreme Court. 18 U.S.C. § 3771.
Rule 6(e), however, was not enacted as a result of the ninety day layover provision of 18 U.S.C. § 3771. By order of April 26, 1976, the Supreme Court adopted amendments to the Federal Rules of Criminal Procedure which were duly reported to Congress. Congress voted to delay the effective date of several of the proposed rules, among them Rule 6(e), "until August 1, 1977, or until and to the extent approved by Act of Congress, whichever is earlier." Pub.L. No. 94-349 § 1, 90 Stat. 822 (1976). Subsequently, Congress, by statute, enacted a modified version of Rule 6(e) in substantially its present form. Pub.L. No. 95-78, § 2(a), 91 Stat. 319 (1977).
Appellant apparently concedes that Rule 6(e), if a statute, satisfies the other criteria set forth in Exemption 3. We
2. The Scope of Rule 6(e)
Having determined that Rule 6(e) is a relevant statute within the meaning of FOIA Exemption 3, the only remaining inquiry is whether information withheld on that basis is actually included within the reach of the rule. See Goland v. CIA, 197 U.S.App.D.C. 25, 36, 607 F.2d 339, 350 (1978), cert. denied, 445 U.S. 927, 100 S.Ct. 1312, 63 L.Ed.2d 759 (1980).
Four exceptions to the general rule of secrecy are enumerated in the rule. The first two, involving limited disclosure to government attorneys and other government personnel, are clearly inapplicable. Rule 6(e)(3)(A). The remaining two permit disclosure pursuant only to a court order. The fourth permits disclosure to a criminal defendant for use in preparing a motion to dismiss an indictment. Rule 6(e)(3)(C)(ii). The only exception even arguably applicable to the present proceedings is that which permits disclosure "when so directed by a court preliminarily to or in connection with a judicial proceeding." Rule 6(e)(3)(C)(i). But an examination of the language and legislative history of that section reveals that it contemplates disclosure in the course of parallel civil proceedings and "does not include the very proceeding instituted for the purpose of obtaining disclosure." Hiss v. Department of Justice, 441 F.Supp. 69, 70 (S.D.N.Y.1977); see S.Rep. No. 354, 95th Cong., 1st Sess. 8 (1977); 123 Cong.Rec. 25196 (1977) (remarks of Rep. Wiggins).
Thus, this case is governed by the general rule and not its exceptions. Because the exceptions have no application in
We believe that the district court properly applied the rule to the information at issue in the present case. The rationale for maintaining grand jury secrecy has recently been restated by the Supreme Court:
Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. at 219, 99 S.Ct. at 1673 (citing United States v. Rose, 215 F.2d 617, 628-629 (3d Cir. 1954)). In order to effectuate these objectives, the scope of the secrecy is necessarily broad. It encompasses not only the direct revelation of grand jury transcripts but also the disclosure of information which would reveal "the identities of witnesses or jurors, the substance of testimony, the strategy or direction of the investigation, the deliberations or questions of the jurors, and the like." SEC v. Dresser Industries, Inc., 202 U.S.App.D.C. at 359, 628 F.2d at 1382.
The district court upheld deletions under Exemption 3 for information: naming or identifying grand jury witnesses; quoting or summarizing grand jury testimony; evaluating testimony; discussing the scope, focus and direction of the grand jury investigations; and identifying documents considered by the grand jury and conclusions reached as a result of the grand jury investigations. 485 F.Supp. at 10; First Affidavit of James B. Rhoads, J.A. Exhibit 1, at 2. It is apparent that this information falls within the broad reach of grand jury secrecy as described above.
Disclosure of this information would reveal matters occurring before the grand jury and is, therefore, properly exempt from disclosure pursuant to FOIA Exemption 3 and Fed.R.Crim.P. 6(e). Witness names are clearly covered, as are documents subpoenaed as exhibits. Potential witnesses and potential documentary exhibits, while less clearly within the rule, if disclosed
This is not an instance where documentary information coincidentally before the grand jury would be revealed in such a manner that its revelation would not elucidate the inner workings of the grand jury. See SEC v. Dresser Industries, Inc., 202 U.S.App.D.C. at 360, 628 F.2d at 1383; United States v. Stanford, 589 F.2d 285, 291 (7th Cir. 1978), cert. denied, 440 U.S. 983, 99 S.Ct. 1794, 60 L.Ed.2d 244 (1979); United States v. Interstate Dress Carriers, 280 F.2d 52, 54 (2d Cir. 1960). In this case, appellant seeks information from an entity whose possession of that information is directly linked to its role relating to the grand jury investigations. The relevant inquiry is not whether the party seeking the information has an interest other than in its role in a grand jury investigation but whether revelation in the particular context would in fact reveal what was before the grand jury. See Murphy v. FBI, 490 F.Supp. 1138, 1141 (D.D.C.1980), vacated as moot, No. 80-518 (D.D.C. Jan. 8, 1981).
A passage from this Court's en banc decision in SEC v. Dresser Industries, Inc. will serve to illuminate the distinction between the situation addressed there and that present in this case. As stated by the Court in Dresser:
202 U.S.App.D.C. at 359-60, 628 F.2d at 1382-83 (footnote omitted).
C. Attorney's Fees
The FOIA provides that:
5 U.S.C. § 552(a)(4)(E). As this Court has recently observed:
Church of Scientology of California v. Harris, 209 U.S.App.D.C. 329, 332, 653 F.2d 584, 587 (1981). Eligibility is established by a determination that the moving party has "substantially prevailed" within the meaning of 5 U.S.C. § 552(a)(4)(E). Id.
Appellant predicates its eligibility for attorney fees not on that portion of
485 F.Supp. at 15 (quoting Nationwide Building Maintenance, Inc. v. Sampson, 182 U.S.App.D.C. at 95, 559 F.2d at 716). This is a finding of fact which is to be overturned only if clearly erroneous. Crooker v. U. S. Department of the Treasury, slip op. at 4 (citing Cox v. Department of Justice, 195 U.S.App.D.C. at 194, 601 F.2d at 6).
In holding that this finding was clearly erroneous, we rely in large part upon a factor which appears to have been overlooked by the district court; that is, appellant filed this action only after WSPF, in the early stages of processing this request, revealed that it would make only scant disclosures from the files in question. This is not a case where a FOIA requester, impatient with justifiable delays at the administrative level, resorts to the "squeaky wheel" technique of prematurely filing suit in an effort to secure preferential treatment. To the contrary, appellant exhibited a cooperative understanding of the administrative burden until it became apparent that the administrative process was not about to yield that to which it was entitled under the Act. It seems clear that appellant had in fact encountered virtually "absolute resistance to disclosure before [seeking] judicial review." Nationwide Building Maintenance, Inc. v. Sampson, 182 U.S.App.D.C. at 95, 559 F.2d at 716.
It is true that disclosure followed closely on the heels of processing in the more experienced hands of NARS. It is also true that WSPF with its reduced staff and in the process of winding down its operations was understandably ill-equipped to deal with a request of this magnitude. But it does not follow that these factors excuse the government's failure, albeit temporary, to comply with FOIA disclosure requirements. Cf. Crooker v. Department of the Treasury, slip op. at 4-5. Furthermore, the mere fact that a FOIA requester might have ultimately received the documents in question in the absence of litigation is not a sufficient basis for a finding that it has not substantially prevailed for purposes of an award of attorney fees. See id.
Rather, in addressing the question of whether a party who has received documents absent a court order requiring disclosure has substantially prevailed, the court must determine that:
Cox v. United States Department of Justice, 195 U.S.App.D.C. at 194, 553 F.2d at 6.
Moreover, under the rather unique circumstances of this case, we believe that a sufficient causal nexus exists between this litigation and the release of the documents to warrant a determination that appellant is eligible for attorney fees. It appears that NARS undertook to review the documents in question, including those already reviewed by WSPF, in conjunction with the duty it inherited as defendant in this action to prepare a detailed justification for the items withheld.
Our holding that appellant is eligible for an award of attorney fees does not determine that appellant should in fact receive an award of fees. The ultimate resolution of this question requires the district court to determine whether appellant is also entitled to attorney fees. After finding that appellant had not substantially prevailed, the district court did not go on to address the factors which govern the decision whether to award fees to a party who has established eligibility. This Court has consistently left that question to be determined
We have determined that Exemption 7(C) of the FOIA, as a threshold matter, protects from disclosure the names of individuals who are investigated for suspected criminal activity but are never subsequently charged or indicted. While it is conceivable that high level government and corporate officials may have a somewhat diminished interest in personal privacy, we do not believe that fact tips the balance in favor of disclosure under the circumstances of this case. We have also concluded that Fed.R.Crim.P. 6(e) is an exempting statute within the meaning of FOIA Exemption 3. Applicability of the exemption depends solely on whether disclosure would reveal matters occurring before the grand jury. As the information withheld on that basis in this case met that requirement, the district court properly concluded that it is exempt from FOIA disclosure. Finally, we have concluded that FCG did "substantially prevail" in this action and is therefore eligible for an award of attorney fees. On remand, the district court should determine whether FCG is also entitled to an award of fees.
Affirmed in part; reversed in part and remanded.
5 U.S.C. § 552(a)(6)(C).
178 U.S.App.D.C. at 319, 547 F.2d at 616.
485 F.Supp. at 8-9. The district court also found that all of the information which would reveal the identities of confidential sources was properly withheld under Exemption 7(D). 485 F.Supp. at 9.
5 U.S.C. § 552(b)(6).
Id. at 7-8.
485 F.Supp. at 13. Because, however, we find that information withheld under Exemption 5 and challenged by appellant is also properly exempt under Exemption 7(C), we do not undertake to explore the applicability of Exemption 5 to information of this character.
438 F.Supp. at 543; see Common Cause v. National Archives and Records Service, 202 U.S.App.D.C. at 183-84 n.11, 628 F.2d at 183-84 & n.11. This is not such a case. To the extent that information in the present files was of the same character as that in the Congressional News Syndicate case, and not otherwise exempt, the district court ordered its release. 485 F.Supp. at 7.
Rule 6(e), Fed.R.Crim.P., 18 U.S.C.
Founding Church of Scientology v. Bell, 195 U.S.App.D.C. at 370, 603 F.2d at 952 (footnotes omitted). It should be observed that other factors also dictated the result in the Scientology case. First, a Rule 26(c) protective order is largely a creature of the district court's discretion and, though the rule provides some guidance to the exercise of that discretion, the Court did not find that guidance sufficient to satisfy the requirements of Exemption 3. Id. Second, the Court observed that "[a] Rule 26(c) order is issued to avoid injury in the context of a particular suit between particular litigants" and, as such, provides an inappropriate standard by which to answer the distinct question pertaining to FOIA disclosure. Id. Neither of these observations are applicable to Fed.R.Crim.P. 6(e). It should also be noted that the Scientology holding stands in contrast to language contained in the Court's en banc decision in Killough v. United States, 114 U.S.App.D.C. 305, 315 F.2d 241 (1962), describing Fed.R.Crim.P. 5(a) as, "though in form a rule, [having] the full effect of statutory law." 114 U.S.App.D.C. at 306, 315 F.2d at 242.
197 U.S.App.D.C. at 36, 607 F.2d at 350.
441 U.S. at 222, 99 S.Ct. at 1674 (emphasis added).
Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. at 222, 99 S.Ct. at 1674.
Crooker v. U. S. Department of the Treasury, U.S.App.D.C., slip op. at 4-5.
In Scientology, the government argued that 31 documents had been released not as a result of litigation but as a result of their review under new guidelines established in a letter to agency heads from then Attorney General Bell. In rejecting this contention, Judge MacKinnon stated:
Church of Scientology of California v. Harris, 209 U.S.App.D.C. 329 at 334, 653 F.2d 584, at 589.