Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS.
HARRY T. EDWARDS, Circuit Judge:
This case is a logical sequel to the decision of this Circuit a little more than a year ago in Abramson v. Federal Bureau of Investigation, 658 F.2d 806 (D.C.Cir.1980), cert. granted, 452 U.S. 937, 101 S.Ct. 3079, 69 L.Ed.2d 951 (1981) (No. 80-1735). In Abramson we held, inter alia, that documents in the possession of the Federal Bureau
The decision in Abramson, however, did not reach one of the principal questions raised by this appeal. Because the Government did not challenge the finding in Abramson that the records at issue were not compiled for law enforcement purposes, we had no occasion to pass upon the appropriate judicial test for determining whether documents held by the FBI are indeed "investigatory records compiled for law enforcement purposes." This case, however, requires us to express and apply such a test.
In this case, Elmer G. ("Geronimo") Pratt, a former officer of the Black Panther Party, requested from the FBI all documents and records filed under his name and all other records containing his name or pertaining to him. Through his original request to the FBI, administrative appeals within the agency, and his action in the District Court, Pratt has obtained over 1,200 documents in whole or in part. At issue on this appeal is the proper treatment to be accorded twenty documents, all of which were generated by the FBI's Counter-Intelligence Program ("COINTELPRO") activities directed at the Black Panther Party.
The District Court held that the disputed documents were not the result of "any legitimate law enforcement purpose," Pratt v. Webster, 508 F.Supp. 751, 761 (D.D.C.1981), and hence did not satisfy the Exemption 7 threshold. Although we note that certain of these documents evince illegal FBI practices, we are constrained to find that the records sought derived at least in part from a purpose to enforce and prevent violations of the criminal laws. In light of this finding, we must reverse the decision of the District Court denying the Government's requests for nondisclosure. We remand so that the District Court may consider the proper application of the subparts of Exemption 7 to the twenty documents in question.
A. Factual Background
During the late 1960s, plaintiff-appellee Pratt was the Deputy Minister of Defense for the Southern California Branch of the Black Panther Party ("BPP"). During the late 1960s and early 1970s the Black Panther Party was the object of intensive scrutiny by the FBI as an allegedly subversive, and potentially violent, domestic organization.
On July 28, 1972, Pratt was found guilty of murder and robbery in a California state court and, on August 28, 1972, he was sentenced to a term of life imprisonment, which he is presently serving in San Quentin Prison.
Based in part on his belief that the FBI possessed documents that would verify his presence in Oakland on December 18, 1968, and thus substantiate his alibi, Pratt filed two FOIA requests with the FBI. Complaint ¶¶ 3, 8, 12, 25, reprinted in Jt.App. at 7-9, 12. On June 5, 1976, Pratt requested then FBI Director Clarence Kelley to provide him with:
On May 20, 1977, the FBI released 499 partially expurgated pages to Pratt. Pratt appealed certain deletions within the agency and, on September 8, 1977, he made a supplemental request for "any records pertaining to him which may be contained in the Bureau's files concerning" five named organizations and twenty-two named individuals.
Through his supplemental request and the processing of his administrative appeals, Pratt eventually obtained access to over 1,000 documents, totaling several thousand pages. The FBI deleted portions of many of these documents, claiming that the deletions were justified by Exemptions 1, 2, 7(C), 7(D), 7(E) and 7(F) of FOIA.
B. Proceedings in the District Court
The District Court directed the FBI to submit affidavits, pursuant to Vaughn v. Rosen, 484 F.2d 820 (D.C.Cir.1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974), indexing and explaining the agency's deletions. The court determined that the first Vaughn index was inadequate and ordered the FBI to submit new and more detailed Vaughn filings. These were submitted in November 1979.
On April 6, 1979, while the District Court proceedings were pending, Congressman Paul McCloskey requested the FBI "to determine whether there is any evidence in the files to indicate the possibility of Pratt's innocence or doubt as to Pratt's guilt" of the December 18, 1968 Santa Monica murder. In response to Congressman McCloskey's request, the FBI conducted a search
On February 15, 1980, the FBI moved for summary judgment based on its second Vaughn index and the completeness of its document production. On February 12, 1981, the District Court denied the FBI's motion for summary judgment. Pratt v. Webster, 508 F.Supp. 751 (D.D.C.1981). The District Court ordered all documents containing redactions based on Exemptions 1 and 7(E) submitted for in camera review. 508 F.Supp. at 756-58, 760-61. The deletions from partially disclosed documents based on Exemptions 2, 7(C) and 7(D) were upheld, id. at 758-60, with the exception of nine documents generated by COINTELPRO activities. The District Court held that these COINTELPRO documents could not "reasonably be considered or interpreted as generated through any legitimate law enforcement purpose," and hence could not "be redacted pursuant to exemption (b)(7)." Id. at 761. Finally, the District Court ordered the agency to explain certain inadequacies in its search of FBI Headquarters files and expanded the scope of Pratt's FOIA suit to include all documents generated by COINTELPRO concerning Pratt. Id. at 762-64.
In response to an Order of the District Court, dated February 13, 1981, the FBI identified for the court sixteen COINTELPRO documents contained in the June 1980 release of documents from the search of FBI California field offices. The FBI also submitted an affidavit and index seeking to justify deletions from twelve of these documents. The agency sought reconsideration of the court's earlier ruling that COINTELPRO documents were not "compiled for law enforcement purposes" and hence not within Exemption 7's purview; in the alternative, the agency claimed that Exemption 6 of FOIA
In a June 16, 1981 Memorandum Opinion, the District Court ordered the release of material from five documents that had been expurgated based on an Exemption 1 claim. Deletions from fifty-seven other documents based on Exemption 1 and from two documents based on Exemption 7(E) were approved after in camera review. Pratt v. Webster, ___ F.Supp. ___, Civ. No. 78-1688, Memorandum Opinion at 2-4 (D.D.C. June 16, 1981), reprinted in Jt. App. at 336-38. The District Court also sought further explanation of the scope of the agency's document search. Id. at 5-9, reprinted in Jt.App. at 339-43. Finally, the District Court refused to alter its previous ruling on the applicability of Exemption 7 to COINTELPRO documents, accepted a deletion from one COINTELPRO document based on Exemption 6, and sought further description of the proposed deletions from four other COINTELPRO documents. Id. at 9-12, reprinted in Jt.App. at 343-46.
On August 7, 1981, the District Court approved the deletion of identifying information from one additional COINTELPRO document based on the FBI's Exemption 6 claim. The District Court also ordered release of the remaining COINTELPRO documents in their entirety, denied the Government's request for a stay of disclosure pending appeal, and granted summary judgment to the defendants in all remaining aspects of the case. Pratt v. Webster, Civ. No. 78-1688 (D.D.C. Aug. 7, 1981), reprinted in Jt.App. at 377-80.
II. LEGAL ANALYSIS OF THE EXEMPTION 7 THRESHOLD
A. The Existence of an Exemption 7 Threshold for Law Enforcement Agencies
The Freedom of Information Act was enacted by Congress in 1966, and substantively amended in 1974 and 1976, in order to provide a statutory right of public access to documents and records held by agencies of the federal government. As such, FOIA embodies "a general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language." S.Rep.No.813, 89th Cong., 1st Sess. 3 (1965). Subsection (a)(3) of the Act, under which Pratt has proceeded in this case, requires "each agency" to make available upon request any records it possesses "to any person." 5 U.S.C. § 552(a)(3) (1976).
The broad right of access and disclosure under FOIA is subject to nine exemptions set out in subsection (b), 5 U.S.C. § 552(b) (1976). See 5 U.S.C. § 552(c) (Supp. IV 1980). Like the rest of the Act, all but two of these exemptions on their face apply with equal force and effect to all federal agencies.
In this case we are primarily concerned with the appropriate interpretation of one exemption, Exemption 7, as applied to a single agency, the FBI. There is no indication in the threshold language of Exemption 7 that it does not apply to documents held by the FBI. Rather, in all cases Exemption 7 protects from disclosure "investigatory records compiled for law enforcement purposes, but only to the extent that" one of the exemption's subparts applies. This statutory language on its face prescribes a three-part test for withholding information under Exemption 7: In order to be withheld, the material (1) must be an "investigatory record," (2) must have been "compiled for law enforcement purposes," and (3) must satisfy the requirements of one of the six subparts of Exemption 7.
Irons, 596 F.2d at 474, quoted in part in Kuehnert, 620 F.2d at 666.
The simplest response to the Government's contention that FBI records per se meet the threshold criterion of Exemption 7 is that that argument has been rejected by this Circuit in Abramson v. FBI, 658 F.2d 806 (D.C.Cir.1980), cert. granted, 452 U.S. 937, 101 S.Ct. 3079, 69 L.Ed.2d 951 (1981).
The Government argues that Abramson does not foreclose their contention that records held by the FBI per se satisfy the Exemption 7 threshold. Appellants' Brief
The three-pronged test for Exemption 7 claims that the Abramson opinion sets out, 658 F.2d at 811-12, follows from the plain meaning of the statute,
B. The Definition of the Exemption 7 Threshold Test for Law Enforcement Agencies
Our conclusion that a threshold test exists for the application of FOIA Exemption 7 to documents held by law enforcement agencies is, however, only the beginning of our inquiry. The resolution of this case necessarily requires the expression of that threshold test and its application to the COINTELPRO documents presented here.
1. The Deference Accorded Law Enforcement Agencies Claiming a "Law Enforcement Purpose"
While FOIA makes no distinction on its face between agencies whose principal function is criminal law enforcement and agencies with both law enforcement and administrative functions, it would be unnecessarily wooden to treat both groups identically when they claim Exemption 7 as a basis for withholding. In fact, courts often accord different treatment to Exemption 7 claims from different agencies. E.g., Church of Scientology v. Department of the Army, 611 F.2d 738, 748 (9th Cir. 1979); Irons v. Bell, 596 F.2d 468, 473 (1st Cir. 1979); Ramo v. Department of the Navy, 487 F.Supp. 127, 130-31 (N.D.Cal.1979), appeal docketed, No. 79-4791 (9th Cir. Aug. 6, 1981) (submission vacated pending Supreme Court decision in FBI v. Abramson); see Note, FOIA Exemption 7 and Broader Disclosure of Unlawful FBI Investigations, 65 Minn.L.Rev. 1139, 1145-49 (1981). This judicial development, most often taking the form of more exacting scrutiny of Exemption 7 claims by agencies whose principal function is not law enforcement, is well-grounded in congressional purpose, common
First, Congress amended Exemption 7 of FOIA in 1974 in response to a series of decisions by this Circuit that had interpreted the exemption rigidly.
Second, in its 1974 amendment to Exemption 7, Congress set out six subparts to the exemption representing the potential harms that it believed justified nondisclosure of government investigatory records. These subparts, perhaps predictably, apply more extensively in criminal than in civil law enforcement.
Third, courts can usually assume that government agencies act within the scope of their legislated authority. This assumption is not the product of wishful judicial thinking, but instead results from our observations over time that, despite occasional and regrettable lapses, government agencies typically go about their intended business. This experience has specific application to the court's consideration of FOIA Exemption 7 claims by different types of federal agencies.
On the one hand, the assumption that a mixed-function agency is acting within the scope of its authority tells a court nothing about whether it has met the Exemption 7 threshold requirement of a "law enforcement purpose." Law enforcement, indeed, is often one of such an agency's proper functions, but other functions are also a major part of the agency's day-to-day business. Thus, a court must scrutinize with some skepticism the particular purpose claimed for disputed documents redacted under FOIA Exemption 7. Ramo v. Department of the Navy, 487 F.Supp. 127, 131 (N.D.Cal.1979), appeal docketed, No. 79-4791 (9th Cir. Aug. 6, 1981) (submission vacated pending Supreme Court decision in FBI v. Abramson). If courts accept a mixed-function agency's claims of "law enforcement purpose" without thoughtful consideration, the excessive withholding of agency records which Congress denounced and sought to avoid with the 1974 amendments might well result.
On the other hand, the generally accurate assumption that federal agencies act within their legislated purposes implies that an agency whose principal mission is criminal law enforcement will more often than not satisfy the Exemption 7 threshold criterion.
Thus, we conclude that a court may apply a more deferential attitude toward the claims of "law enforcement purpose" made by a criminal law enforcement agency. The result of this conclusion is that our prior precedent identifying the standard for ascertaining law enforcement purpose vel
2. The "Law Enforcement Purpose" of Law Enforcement Agencies
On one of the few occasions that required this Circuit to ascertain the presence or absence of a "law enforcement purpose" for FOIA Exemption 7, in a case involving a mixed-function agency, the court drew a line between general agency oversight (including program monitoring) and agency investigations specifically directed at allegedly illegal activity. Rural Housing Alliance v. Department of Agriculture, 498 F.2d 73, 81-82 (D.C.Cir.1974).
Because we believe that a court may apply a more deferential standard with respect to claims of "law enforcement purpose" made by a criminal law enforcement agency, the test enunciated in Rural Housing is not adequate to dispose of the question at issue here. We must, therefore, consider alternative tests suggested by other courts.
The various courts that have rejected the per se argument, i.e., that all law enforcement agency files manifest a law enforcement purpose, have, quite naturally, each phrased their tests in slightly different language. For example, Judge Weinfeld has opined: "The appropriate test is whether the records indicate that the agency was gathering information with the good faith belief that the subject may violate or has violated federal law, or was merely monitoring the subject for purposes unrelated to enforcement of federal law." Lamont v. Department of Justice, 475 F.Supp. 761, 773 (S.D.N.Y.1979) (footnote omitted). The Northern District of California announced "a liberal test that would require that the FBI show a sufficient connection between the conduct of the investigation and legitimate concerns for maintaining national security or preventing criminal activity." Ramo v. Department of the Navy, 487 F.Supp. 127, 131 (N.D.Cal.1979), appeal docketed, No. 79-4791 (9th Cir. Aug. 6, 1981) (submission vacated pending Supreme Court decision in FBI v. Abramson).
As we read these various tests, however phrased, and consider the applicable language of FOIA (and the related legislative history), it appears inescapable to us that there are two critical conditions that must be met for a law enforcement agency to pass the Exemption 7 threshold. First, the agency's investigatory activities that give rise to the documents sought must be related to the enforcement of federal laws or to the maintenance of national security. To satisfy this requirement of a "nexus," the agency should be able to identify a particular individual or a particular incident as the object of its investigation and the connection between that individual or incident and a possible security risk or violation of federal law. The possible violation or security risk is necessary to establish that the agency acted within its principal function of law enforcement, rather than merely engaging in a general monitoring of private individuals' activities. While Congress intended that "law enforcement purpose" be broadly construed,
Second, the nexus between the investigation and one of the agency's law enforcement duties must be based on information sufficient to support at least "a colorable claim" of its rationality. This second condition is deferential to the particular problems of a criminal law enforcement agency. Such an agency, in order to carry out its functions, often must act upon unverified tips and suspicions based upon mere tidbits of information. A court, therefore, should be hesitant to second-guess a law enforcement agency's decision to investigate if there is a plausible basis for its decision. Nor is it necessary for the investigation to lead to a criminal prosecution or other enforcement proceeding in order to satisfy the "law enforcement purpose" criterion. E.g., Bast v. Department of Justice, 665 F.2d 1251, 1254 (D.C.Cir.1981); Rural Housing Alliance v. Department of Agriculture, 498 F.2d 73, 82 n.48 (D.C.Cir.1974); cf. Founding Church of Scientology, Inc. v. Regan, 670 F.2d 1158, 1161 (D.C.Cir.1981) (enforcement proceeding not required for operation of Exemption 7(D)).
Thus, while our measure of a criminal law enforcement agency's "law enforcement purpose" is necessarily deferential, in recognition of the realities of these agencies' duties and the importance of their functions, it is not vacuous. In order to pass the FOIA Exemption 7 threshold, such an agency must establish that its investigatory activities are realistically based on a legitimate concern that federal laws have been or may be violated or that national security may be breached. Either of these concerns must have some plausible basis and have a rational connection to the object of the agency's investigation.
III. APPLICATION OF THE EXEMPTION 7 THRESHOLD IN THIS CASE
In this case the FBI averred that all of the records responsive to Pratt's FOIA request were "investigatory records compiled for law enforcement purposes." Affidavit of David S. Byerly at 7-10, 35 (Nov. 21, 1979), reprinted in Jt.App. at 79-82, 111. The District Court accepted this statement of purpose for all of the documents in the original production except for nine COINTELPRO documents, which it held "cannot reasonably be considered or interpreted as generated through any legitimate law enforcement purpose." Pratt v. Webster, 508 F.Supp. 751, 761 (D.D.C.1981). The District Court's February 13 Order led to the inclusion of sixteen additional COINTELPRO documents in this litigation, all of which had previously been identified during the field office search requested by Congressman McCloskey.
At the outset, it is clear that the District Court singled out this handful of documents only because they were designated as "COINTELPRO" documents. See id. Document 22, labeled as a COINTELPRO document, was the only document found to lack a law enforcement purpose out of a particular file of 156 documents. This entire file was a national security file generated by an investigation "instituted as a result of the FBI receiving information that [Pratt] was engaged in activities which could involve a violation of" 18 U.S.C. §§ 2383-2385 (1976), Affidavit of David S. Byerly at 8 (Nov. 21, 1979), reprinted in Jt.App. at 80. Documents 519 to 524 include eight documents, see note 8 supra, out of more than 400 referring to Pratt that were collected from investigatory files of other individuals or organizations by means of the FBI's "see" or cross references. The FBI averred that "[a]ll `see' reference documents herein are investigatory records compiled for law enforcement purposes and were collected in the course of lawful national security investigations or other mandated investigations imposed by law." Affidavit of David S. Byerly at 35 (Nov. 21, 1979), reprinted in Jt.App. at 111. The District Court accepted the FBI's claim of law enforcement purpose for all of these documents except for the eight bearing the appellation "COINTELPRO." Pratt v. Webster, 508 F.Supp. at 759-61.
We recognize, of course, that Exemption 7 refers to "records" rather than files, 5 U.S.C. § 552(b)(7) (1976), and that the location of a non-exempt document in an investigatory file does not necessarily make that document exempt from FOIA's disclosure requirements. See 5 U.S.C. § 552(b) (1976). We believe, however, that the District Court distinguished these nine documents from the other documents contained in the same files not on the FOIA grounds of law enforcement purpose, but on the grounds of law enforcement method.
The FBI's Counter-Intelligence Program has been the subject of congressional inquiry, see Church Committee Report, note 3 supra, and of individual litigation, see, e.g., Black Panther Party v. Smith, 661 F.2d 1243 (D.C.Cir.1981); Hobson v. Wilson, Civ. No. 76-1326 (D.D.C. Dec. 23, 1981) (judgment on verdict to anti-war demonstrators); Stern v. Richardson, 367 F.Supp. 1316 (D.D.C.1973). Those proceedings have established that COINTELPRO activities included the use of questionable, and at times illegal, methods. The documents at issue in this case also reveal questionable actions by the FBI to foment distrust and suspicion and to create and enhance dissension within the Black Panther Party. See Pratt v. Webster, 508 F.Supp. at 761; Jt.App. at 104-06, 113-41, 229-83. But whatever we may think of the FBI's methods, we cannot conclude therefrom that the COINTELPRO activities involved in this case lacked any law enforcement purpose.
The Church Committee Report's discussion of the FBI's actions against the BPP (offered by Pratt as Exhibit 1 to his May 21, 1981 Memorandum of Points and Authorities in Opposition to Defendants' Motion for Summary Judgment, reprinted in Jt.App. at 316-34) quoted from a February 1968 FBI memorandum expanding the agency's program against what it termed "black nationalist groups," including the BPP. That memorandum described the program's goals as follows:
In particular, we believe that the documents at issue in this case evince law enforcement as a "significant aspect" of the FBI's purpose.
Documents COINT-1 to COINT-16 were located through the FBI's supplemental search for records concerning Pratt in the agency's California field offices. Several of these COINTELPRO documents are directly related to the documents disclosed from the previous search of FBI Headquarters. For example, document COINT-5 was apparently a supplement by the Los Angeles office to its previously dispatched document 520. See Jt.App. at 117-24, 240-41. In addition, the subject matter of these sixteen COINT documents is often the same as is found in documents 519 to 524. In short, these documents, but for their COINTELPRO label, are indistinguishable from other FBI documents for which the District Court found a law enforcement purpose. Moreover, these documents provide independent support for a claim of law enforcement purpose. Document COINT-1, for example, discusses cooperation with the Los Angeles Police Department in identifying violations of state and local laws, reports on the arrest of a BPP member for firearms violations, and identifies Pratt "as a possible bomb suspect." Jt.App. at 229-30.
Thus, we conclude that the District Court incorrectly distinguished COINTELPRO documents from other documents for which it found a law enforcement purpose. While the methods frequently used by the FBI in its COINTELPRO activities offer a ready distinction from more typical means of law enforcement, FOIA Exemption 7 refers to purposes rather than to methods. Because law enforcement was a significant aspect of the FBI's purpose, we conclude that the District Court erred in holding that these documents failed to pass the Exemption 7 threshold. Accordingly, we reverse its holding in this regard.
Because of public interest in the effective disclosure of malfeasance by government agencies, we feel compelled to add a few words about the practical effect of our decision and about the means for redress of any alleged wrongs committed by federal agencies.
FOIA requires disclosure of government records to the fullest extent possible and allows the withholding of only so much of the document as fits squarely within an enumerated exemption. In this case, for example, the Government primarily seeks only to delete the names of its FBI Special Agents and the identities of its confidential sources; the FBI's plans to increase discord within the Black Panther Party and to discredit its leaders have been revealed. The public's interest in the disclosure of government malfeasance is therefore not defeated by the FOIA exemptions or by our interpretation in this case of the reach of one of them.
Of course, nothing we say or hold represents our approval of the measures attributed to the FBI's Counter-Intelligence Program by the Church Committee Report, note 3 supra. The use of government force and deception to quash lawful political dissent and expression is antithetical to a democratic society. Where substantiated, we find these actions reprehensible.
The proper and most effective means of redress for these actions, however, is not a FOIA action. While a suit under the Freedom of Information Act is an important mechanism for discovering the malfeasance of government agencies, see, e.g., Stern v. Richardson, 367 F.Supp. 1316 (D.D.C.1973) (disclosing existence of COINTELPRO), it can do no more than reveal these actions. FOIA is thus a useful supplement to, but not a substitute for, private damage actions by aggrieved individuals and political action by concerned citizens and their representatives. The Church Committee Report is a prime example of the latter, and
For the foregoing reasons, we hold that the twenty COINTELPRO documents at issue in this appeal meet the "law enforcement purpose" criterion of the FOIA Exemption 7 threshold. As a result, we reverse the decision of the District Court in this regard and remand the case to the District Court for its consideration of the Government's claims for nondisclosure under Exemptions 7(C) and 7(D) and for any other proceedings consistent with this opinion.
MacKINNON, Circuit Judge.
A government motion requests the panel to modify its opinion insofar as it discusses the per se rule because otherwise "it creates the real prospect that the FBI will be ordered to disclose confidential sources" notwithstanding the great protection given confidential sources by 5 U.S.C. § 552(b)(7). I consider such possibility to be exceedingly remote, if not practically non-existent, considering the numerous protections for confidential sources, confidential information, and, investigative techniques and procedures, id., (E), that are set forth in § 552 and the Privacy Act, § 552a. See Duffin v. Carlson, 636 F.2d 709 (D.C.Cir.1981). Our opinion does not constitute a holding beyond the facts that are necessarily involved. And to the extent that any reference is made to the jury verdict in Hobson v. Wilson in the District Court, Civ. No. 76-1326 (D.D.C. Dec. 23, 1981), same should be considered as descriptive only and not to constitute any expression of our views on the merits of any factual or legal issue involved therein.
Judge ROBB concurs in this statement.
5 U.S.C. § 552(b)(7) (1976) (emphasis added).
5 U.S.C. § 552(b)(1), (2) (1976). (Exemption 7 is set out in note 2 supra.)
5 U.S.C. § 552(b)(6) (1976).
Attorney General's Memorandum on the 1974 Amendments to the Freedom of Information Act 6-7 (Feb. 1975) (emphasis added), reprinted in House Comm. on Government Operations & Senate Comm. on the Judiciary, 94th Cong., 1st Sess., Freedom of Information Act and Amendments of 1974 (P.L. 93-502) Source Book: Legislative History, Texts, and Other Documents 516-17 (Jt.Comm.Print 1975) [hereinafter cited as 1975 Source Book].
Of course, the question presented in a petitioner's brief before the Supreme Court does not operate as a jurisdictional limit on the Court's authority to reach a proper disposition of a case. See Piper Aircraft Co. v. Reyno, 454 U.S. 235, 102 S.Ct. 252, 261 n.12, 70 L.Ed.2d 252 (1981). Nevertheless, even if the Court should reach beyond the "pass through" issue in Abramson and decide that Exemption 7's threshold language has no application to FBI records, that decision would not affect the outcome of this case. See section III infra.
Second, the Government argues that Abramson decided a different question than the one it now presents about the Exemption 7 threshold criterion. The Government observes that the Abramson panel decided the "pass through" question and that this issue is the one now pending before the Supreme Court. See note 12 supra. While this Circuit did decide the "pass through" question in Abramson, that was not the only issue presented. In fact, Abramson's brief in this court stated:
Brief for Appellant at 14, Abramson v. FBI, 658 F.2d 806 (D.C.Cir.1980). The Supreme Court's review of only a single issue (in fact, the only issue pursued by the Government) does not deny the presence of others in this court's decision in the case.
Notably, the Government has made no attempt to reconcile its per se argument in this case with either the language or the holding in Abramson.
The Government's legislative history argument — that Congress meant to describe FBI files by the threshold language of Exemption 7 rather than to limit the FBI's access to the exemption — further loses credibility on a close reading of the history. In 1973 committee hearings, for example, Assistant Attorney General Robert G. Dixon, Jr. of the Department of Justice Office of Legal Counsel suggested amending Exemption 7 to expand its reach: "If the act is to be amended, perhaps the time has come to put in an exemption expressly covering the files of the FBI and other Federal investigators working with the FBI." Hearings on H.R. 5425 and H.R. 4960 Before a Subcomm. of the House Comm. on Government Operations, 93d Cong., 1st Sess. 152 (1973). In 1974, of course, Congress did amend Exemption 7, but it did not expand the exemption's coverage as desired by Assistant Attorney General Dixon. In this case the Department of Justice now argues, without any explanation of Dixon's remarks, that Exemption 7 means exactly what Assistant Attorney General Dixon suggested and what Congress never enacted. We are unpersuaded.
See 120 Cong.Rec. 17,034 (1974), reprinted in 1975 Source Book, supra note 10, at 335-36.
120 Cong.Rec. 17,040 (1974), reprinted in 1975 Source Book, supra note 10, at 351. See also 120 Cong.Rec. 36,626 (1974), reprinted in 1975 Source Book, supra note 10, at 413-14 (remarks of Rep. Reid).
H.R.Rep.No.1380, 93d Cong., 2d Sess. 13 (1974), reprinted in 1975 Source Book, supra note 10, at 230. See Stein v. Department of Justice, 662 F.2d 1245, 1260-61 (7th Cir. 1981).