591 F.2d 753 (D.C. Cir. 1978), 77-1240, Jordan v. United States Dept. of Justice

Docket Nº:77-1240.
Citation:591 F.2d 753
Party Name:William JORDAN et al. v. UNITED STATES DEPARTMENT OF JUSTICE, Appellant.
Case Date:October 31, 1978
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 753

591 F.2d 753 (D.C. Cir. 1978)

William JORDAN et al.

v.

UNITED STATES DEPARTMENT OF JUSTICE, Appellant.

No. 77-1240.

United States Court of Appeals, District of Columbia Circuit

October 31, 1978

Page 754

Hamilton P. Fox, III, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., Carl S. Rauh, Principal Asst. U. S. Atty., John A. Terry, Robert N. Ford and Joseph Guerrieri, Jr., Asst. U. S. Attys., Washington, D. C., were on the brief, for appellant.

Victor H. Kramer, Washington, D. C., with whom Charles E. Hill, Washington, D. C., and Judy Sello, Washington, D. C., were on the brief, for appellee.

Also Leonard Schaitman, Atty., Dept. of Justice, Washington, D. C., entered an appearance for appellant.

Before WRIGHT, Chief Judge, and BAZELON, McGOWAN, TAMM, LEVENTHAL, ROBINSON, MacKINNON, ROBB and WILKEY, Circuit Judges.

Opinion for the Court filed by WILKEY, Circuit Judge.

Concurring opinion filed by BAZELON, Circuit Judge.

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LEVENTHAL, Circuit Judge, joined by SPOTTSWOOD W. ROBINSON, III, Circuit Judge, concurring.

Dissenting opinion filed by MacKINNON, Circuit Judge.

OUTLINE OF THE OPINION

Page 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"). 1 Appellant is the United States Department of Justice; appellee is William Jordan, a law student at Georgetown University Law Center. The records at issue are two documents relating to the exercise of prosecutorial discretion by the United States Attorney for the District of Columbia and his assistants. The district court held that the Department of Justice is required to index these documents and to make them available for public inspection and copying under subsection (a)(2) of the Act. 2

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.

I. BACKGROUND

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." 3 According to the Senate Report accompanying the original version of FOIA passed in 1966, 4 the statute reflects "a general philosophy of full agency disclosure" and protects "the public's right to know the operations of its government." 5 Congress amended the statute in 1974 6 to strengthen the disclosure requirement. The House Report on the amendments noted that "(t)his bill seeks to reach the goal of more efficient, prompt, and full disclosure of information." 7

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

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three parts, setting forth Three methods by which agencies must make information available to the public. Paragraph (a)(1), not otherwise relevant in this case, requires that certain enumerated types of material be published in the Federal Register. Paragraph (a)(2) requires that certain other types of material be indexed and made available for public inspection and copying. The materials encompassed by paragraph (2) are automatically available for public inspection; no demand is necessary. It was into this category that the district court found that the materials in this case fell. Specifically, this paragraph provides in pertinent part:

(2) Each agency, in accordance with published rules, shall make available for public inspection and copying

(B) those statements of policy and interpretations which have been adopted by the agency and are not published in the Federal Register; and

(C) administrative staff manuals and instructions to staff that affect a member of the public. . . .

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:

(3) Except with respect to the records made available under paragraphs (1) and (2) of this subsection, each agency, upon any request for records which (A) reasonably describe such records and (B) is made in accordance with published rules stating the time, place, fees (if any) and procedures to be followed, shall make the records promptly available to any person.

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." 8 The nine enumerated exemptions are "exclusive" 9 and "must be narrowly construed." 10 The exemptions relevant to the present case are as follows:

(b) This section does not apply to matters that are

(2) related solely to the internal personnel rules and practices of an agency;

(5) inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency;

(7) investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would (A) interfere with enforcement proceedings, (B) deprive a person of a right to a fair trial or an impartial adjudication, (C) constitute an unwarranted invasion of personal privacy, (D) disclose the identity of a confidential source and, in the

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case of a record compiled by a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence investigation, confidential information furnished only by the confidential source, (E) disclose investigative techniques and procedures, or (F) endanger the life or physical safety of law enforcement personnel;

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." 11 The Department of Justice denied Jordan's request on 3 February 1976, claiming that the requested documents were exempt from disclosure by subsection (b)(5) of the Act. 12 Jordan filed this suit in the district court on 19 February 1976, seeking review of the Department's action. 13

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. 14 However, only two of these documents are pertinent in this case.

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. 15 However, there are ten paragraphs in the Manual that contain specific guidelines and criteria which Assistant United States Attorneys are expected to consider in handling certain offenses. Specifically, the guidelines contained in these ten paragraphs cover the following subjects: (1) situations in which non-prosecution is warranted for certain sex-related offenses (paragraph No. 316); (2) situations in which selective prosecution is warranted for...

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