Opinion for the Court filed by Circuit Judge GINSBURG.
GINSBURG, Circuit Judge:
Exemption 7(A) of the Freedom of Information Act (FOIA), 5 U.S.C. § 552(b)(7)(A), permits an agency to withhold from public disclosure "investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would ... interfere with enforcement proceedings." This case presents the novel question whether the Food and Drug Administration (FDA) may rely upon Exemption 7(A) in justification of a blanket refusal to release to a third party any information submitted by a potential target of an FDA enforcement action. The district court answered that question in the affirmative. 518 F.Supp. 1114 (D.D.C.1981). We conclude that the district court's response was too quick and categorical to comport with the congressional directive. That directive, we hold, requires a more particularized showing by the government and a more precise examination by the district court before a judgment may be made that the production sought would "interfere with enforcement proceedings."
Appellant Campbell held various technical positions with appellee Eli Lilly and Company for a quarter-century. From April 1973 through January 8, 1978, he worked on research teams studying the drugs darvon, aprindine, and monensin.
On July 21, 1980, while appellate review of his state court action was pending, Campbell sought access to four categories of documents concerning the FDA investigation. His letter request asked the agency for an opportunity to inspect and copy:
Joint Appendix (J.A.) 6. This specification was designed to elicit only those documents provided by or available to Lilly or its past and present employees, not internal FDA materials.
On August 14, 1980, the FDA notified Campbell that it had no records responsive to category 1 of his request and invoked Exemptions 4
On February 2, 1981, the district court granted Lilly's unopposed motion to intervene as a party-defendant. J.A. 33. Pursuant to its established policy requiring the submitter of confidential commercial information to defend the trade secret status of such materials in FOIA litigation, see 21 C.F.R. § 20.53 (1981),
On February 25, 1981, the agency submitted three public and four in camera affidavits in support of its position that all documents in its possession responsive to Campbell's FOIA request are records properly withheld under Exemption 7. On April 6, the government moved for summary judgment on this basis. On July 21, the district court granted this motion and entered an order dismissing the case. Campbell thereupon appealed, contending that the court had misconstrued Exemption 7
To establish that Exemption 7 permits withholding documents in its possession, an agency must show (1) that the requested documents are "investigatory records compiled for law enforcement purposes," and (2) that release of the material would have one of the six adverse consequences specified in the Act. FBI v. Abramson, 456 U.S. 615, ___, 102 S.Ct. 2054, 2059, 72 L.Ed.2d 376 (1982). Campbell concedes that the documents he seeks satisfy the first requirement: the FDA obtained the requested information in connection with its investigation of Campbell's allegations that Lilly had failed to submit reports required by law concerning the safety of darvon, aprindine, and monensin. The controversy before us centers upon whether disclosure of these records would, as stated in Exemption 7(A), "interfere with enforcement proceedings."
Both sides press extreme positions on the showing an agency must make to establish the requisite interference. Campbell asserts that Exemption 7(A) applies "only on a document-by-document basis." Brief of Plaintiff-Appellant at 10. The government maintains, and the district court ruled, that an agency carries its burden simply by demonstrating that "the withheld information was clearly related to [an ongoing investigation]." 518 F.Supp. at 1115. We reject both formulations. Campbell's would impose an unreasonably onerous standard upon the agency; the FDA's would automatically shield from disclosure all records relating to an ongoing investigation.
Throughout this litigation, in the district court and on appeal, the FDA has responded to a case other than the one Campbell brought. To assure that, on remand, the government will advert specifically to the case at hand, we underscore the nature of Campbell's request.
This is not a situation in which the potential target of an enforcement action seeks access to records not in its possession. Instead, a third party is attempting to procure materials that a target prepared and submitted to the agency. Campbell confined his FOIA request to four categories of documents "obtained by the Food and Drug Administration in connection with the FDA's investigation of Eli Lilly and Company concerning Lilly's suppression of adverse drug reaction data and/or toxicological information regarding the drugs darvon, apridine [sic] and monensin." J.A. 6. He
Remarkably, in light of a request so circumscribed, the government's submissions appear to assume that Campbell seeks a full accounting of the investigation in progress. For example, the in camera affidavits describe the course and conduct of the investigation and the various sources from which evidence was gathered. Three of these affidavits contain lists of records, some acquired from sources other than Lilly or its present and former officers or employees, and some prepared by FDA officials. No submission lists clearly and discretely the agency records responsive to Campbell's request.
Similarly, all of the affidavits repeat the government's dominant assertion that disclosure of the documents could aid Lilly or other potential targets in determining the scope, direction, and focus of the investigation. This may well be true of information gathered from sources outside the Lilly firm and materials generated by the agency itself. However, the government's submissions do not explain how information submitted by the company's present and former officers or employees since the FDA began its investigation could reveal the direction of the investigation to Lilly or alert it to anything it does not know already. The government's submissions are similarly unilluminating with regard to the prospects for tipping off other targets. In addition, the record does not indicate how disclosure to other persons of materials that Lilly has turned over to the agency would lead to alteration or destruction of evidence. The government makes that claim but, consonant with the style it has adopted for its other assertions of interference with the investigation, it offers not even a slim bill of particulars.
Instead of describing the range and depth of its investigation, the government should have responded to the FOIA request as Campbell framed it. The response should have focused on documents Lilly personnel submitted after the FDA began its investigation of Campbell's charges. The references to information supplied by other sources or generated within the agency itself were not warranted and may have conveyed to the district court an inaccurate impression of the dimensions of this case. The FDA should have explained how the material Campbell in fact sought, and only that material, would reveal to potential targets — Lilly or others — the scope, direction, and focus of the inquiry or otherwise interfere with the investigation. On remand, in the discretion of the district court, such explanations may be made in camera. See infra pp. 265-266.
With a view to this restatement of the claim Campbell presented — a claim centered on information Lilly provided after the FDA launched its investigation, not a sweeping demand for the variety of information the agency has gathered — we turn to the guides to decision we have found in the legislative history of Exemption 7(A) and in the relevant case law.
The legislative history of Exemption 7(A), limited as it is,
In 1974, Congress undertook an extensive revision of the FOIA. The bills that ultimately reached the floor suggested no change in Exemption 7.
Senator Hart explained that the new Exemption 7(A) was meant to apply
1975 Source Book, supra note 15, at 333. The amendment had a particular purpose. It would restore the intent of the Congress that had enacted the original FOIA by rejecting four decisions of this court. Id. at 335 (remarks of Sen. Kennedy), 349 (colloquy between Sens. Kennedy & Hart). Those decisions had applied Exemption 7 to materials related to investigations that had been terminated and to cases in which no enforcement action was contemplated.
President Ford vetoed the bill, in part because he believed that the revised Exemption 7 would subject the millions of pages of investigatory files to "compulsory disclosure at the behest of any person unless the Government could prove to a court — separately for each paragraph of each document — that disclosure `would' cause a type of harm specified in the amendment." Id. at 484. Various legislators argued that the President had exaggerated the administrative burden and deleterious effects of the changes. In particular, Senator Hart emphasized that Exemption 7(A) would eliminate "agency incentive to commingle various information into one enormous investigatory file and then claim it is too difficult" to separate exempt from nonexempt records. Id. at 451. See also id. at 406 (remarks of Rep. Moorhead), 413 (remarks of Rep. Reid), 420-21 (remarks of Rep. Erlenborn), 424 (remarks of Rep. Horton), 440 (remarks of Sen. Kennedy). Congress then overrode the veto.
Congress did not have specifically in view the novel case of a request for information supplied to an agency by the target of an investigation when it considered current Exemption 7(A). The history of revised Exemption 7, however, strongly suggests that the standard urged by the government and adopted by the district court is incompatible with the congressional intent to heighten or refine agency attention to FOIA requests. If an agency may withhold any document merely because it relates to a pending investigation, the 1974 version of Exemption 7(A) would apply to everything properly placed in investigatory files, yet Congress plainly mandated a focus upon records, not files. Furthermore, the "clearly related to [an ongoing investigation]" test fails to distinguish between records generated within the agency or otherwise "not in the possession of known or potential defendants," the typical Exemption 7(A) situation to which Senator Hart referred, and documents submitted to the government by such targets in the course of an investigation. By lumping the two together, the test would render it unnecessary for the agency to show in the latter case precisely how the disclosure would "imped[e] any necessary investigation before the [law enforcement] proceeding." See supra p. 262.
Although we conclude that the district court's ruling rests upon an overly expansive reading of Exemption 7(A), we cannot attribute to the provision the meaning Campbell urges, which would require the FDA to justify on a document-by-document basis its withholding of any of the records
The leading case under Exemption 7(A) is NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 98 S.Ct. 2311, 57 L.Ed.2d 159 (1978). In Robbins Tire, an employer charged with committing unfair labor practices sought, in advance of the administrative hearing on those charges, to obtain copies of statements submitted to the NLRB by all prospective witnesses. The Board denied the request, claiming that prehearing disclosure would interfere with the enforcement proceedings. The employer argued that the Board had failed to show specifically that release of the particular statements would impede the investigation.
The Court, in a three-step analysis, upheld the agency's position. First, it observed that the language of Exemption 7(A), unlike the terms of other subdivisions of the investigatory records exception, "appears to contemplate that certain generic determinations might be made." Id. at 223-24, 98 S.Ct. at 2317-18.
Id. at 236, 98 S.Ct. at 2324. Third, the Court examined the possible consequences of prehearing disclosure of statements of prospective witnesses and held that the Board had satisfied its burden of demonstrating that such premature revelation would interfere with enforcement proceedings. Id. at 236-42, 98 S.Ct. at 2323-27.
The Supreme Court's analysis in Robbins Tire is sufficient to dispose of Campbell's contention that the FDA must justify its withholding of each and every document responsive to his request.
Even the decisions relied upon by the FDA suggest that the district court acted with unwarranted haste in dismissing Campbell's complaint. For example, the court in Stephenson v. IRS, 629 F.2d 1140 (5th Cir.1980), vacated a grant of summary judgment for the government because the affidavit describing the withheld documents afforded an inadequate factual basis for the decision. In contrast to this case, all of the decisions the FDA cites involved FOIA requests by actual or potential targets of concrete, prospective enforcement proceedings for materials compiled by the investigative agency or derived from third parties and to which the requester otherwise had no access. See, e.g., id. at 1143 n.5 (memoranda of IRS interviews with and records received from third parties, summonses and other documentary requests to such persons, internal memoranda and work sheets of IRS agents, and sworn statements of third parties); Barney v. IRS, 618 F.2d 1268, 1271 n.5 (8th Cir.1980) (per curiam) (copies of all information the IRS compiled on requesters since specified date); Moorefield v. United States Secret Service, 611 F.2d 1021, 1022 (5th Cir.) (all documents concerning requester), cert. denied, 449 U.S. 909, 101 S.Ct. 283, 66 L.Ed.2d 139 (1980); Grabinski v. IRS, 478 F.Supp. 486, 487 (E.D.Mo.1979) (information received from and letters to and from third parties, and memoranda, notes, and work sheets prepared by IRS agents); Steinberg v. IRS, 463 F.Supp. 1272, 1273 (S.D.Fla.1979) (internal IRS documents regarding audits and investigations, notes of agents conducting a specific investigation, correspondence between the IRS and other agencies and prospective witnesses).
Two recent district court decisions illustrate the focused analysis of Exemption 7(A) claims contemplated under Robbins Tire. In Parker/Hunter, Inc. v. SEC, [1981-1982 Transfer Binder] Fed.Sec.L.Rep. (CCH) ¶ 98,279, at 91,778-79 (D.D.C. Apr. 29, 1981), the court required the agency to supplement its initial submissions, which stated only in general terms that disclosure of the requested information could jeopardize future enforcement action by revealing the direction of the investigation and the strength of the evidence. The court pointedly observed that the proffered justification would warrant withholding any document in an open investigatory file, contrary to the holding of Robbins Tire. The supplemental affidavit, which the court found adequate to support the agency's position, "describe[d] in detail the material in the SEC files that [was] responsive to each category of plaintiff's request, and describe[d] how disclosure of the material in each category would interfere with enforcement proceedings." Id. at 91,778. Similarly, in OKC Corp. v. Williams, 489 F.Supp. 576, 583-86 (N.D.Tex.1980), the target of an SEC investigation sought access to fourteen broad categories of agency records. The court
The unusual facts of the case at hand, moreover, should have signaled to the district court with particular clarity the court's responsibility to insist on a presentation by the FDA tuned to Campbell's request, and the need to apply to the government's affidavits a more rigorous analysis. Unlike the requesters in previous Exemption 7(A) cases, Campbell is not an actual or potential target of an FDA enforcement proceeding who seeks early discovery of the strength of the government's case in order to tailor his defense. Rather, he is a third party seeking information to which a potential target apparently has access and, indeed, has submitted to the agency. This circumstance does not mean that Campbell must prevail in resisting the government's invocation of Exemption 7(A). It does mean, however, that the district court must conduct a more focused and particularized review of the documentation on which the government bases its claim that the information Campbell seeks would interfere with the investigation.
On remand, the district court should require the submission of affidavits and entertain argument addressing the precise terms of Campbell's request. The government's submissions should relate with particularity to the documents submitted to the FDA by Lilly and its present and former officers or employees after that agency commenced its investigation of Campbell's allegations. The government may focus upon categories of records encompassed by the request; a document-by-document response is not required under Exemption 7(A). However organized, the submissions must demonstrate specifically how each document or category of documents, if disclosed, would interfere with the investigation, for example, how revelation of any particular record or record category identified as responsive to Campbell's request would reveal to particular targets, actual or potential, the scope, direction, or focus of the FDA inquiry.
Materials submitted to justify withholding the documents Campbell requested may contain information that could itself interfere with subsequent enforcement proceedings. For this reason, the district court, in its discretion, may accept in camera submissions. This court has expressed grave reservations regarding nonpublic government presentations absent sensitive national security concerns. See, e.g., Yeager v. DEA, 678 F.2d 315, 323 (D.C.Cir.1982). Accordingly, the district court should attempt to develop as complete a public record as possible. See Phillippi v. CIA, 546 F.2d 1009, 1013 (D.C.Cir.1976).
At the same time, we recognize that the focus of Exemption 7(A) differs from that of other FOIA exceptions. Generic rather than document-by-document determinations may be made in ruling upon the application of Exemption 7(A). The government must show only that the documents at issue are investigatory records compiled for law enforcement purposes, a matter not in dispute in this case, and that disclosure of each type of record requested would interfere with pending enforcement proceedings. In such a situation, the interests of the adversary process may be outweighed by the agency's legitimate interest in secrecy. See Barney, supra, 618 F.2d at 1272-73.
We do not consider the application vel non of Exemptions 7(B) and 7(C) because the district court did not explain why it concluded that these provisions authorize withholding the information at issue. See supra note 5. As with Exemption 7(A), the government does not meet its burden, nor does the district court discharge its responsibility, through conclusory statements, unaccompanied
The Exemption 4 issue remains open. See supra note 4. In the event that the district court determines documents encompassed by Campbell's request are not covered by Exemption 7, the Exemption 4 issue will be ripe for consideration.
For the reasons stated, we conclude that the district court should not have dismissed Campbell's complaint on the basis of the showing made by the government. Accordingly, we vacate the judgment and remand the case for further proceedings consistent with this opinion.
The district court accepted the FDA's assertion that Exemptions 7(B) and 7(C) justified refusal to disclose the requested information, see 518 F.Supp. at 1115, but did not explain why it agreed with the agency. Neither the FDA nor Lilly offers substantive arguments on these provisions. Campbell discusses them only in a footnote. See Brief of Plaintiff-Appellant at 15 n.2.
Since the record contains and Campbell offers no basis to question the agency's veracity or good faith, we accept the FDA's representation that it has no documents responsive to category 1 of Campbell's request. See Barney v. IRS, 618 F.2d 1268, 1274 (8th Cir.1980) (per curiam). Cf. Stephenson v. IRS, 629 F.2d 1140, 1145 (5th Cir.1980) (where subsequent developments suggest that certain withheld information was not in fact exempt under 7(A), court may order submission of more detailed justification of agency position).