612 F.2d 417 (9th Cir. 1979), 76-2506, Church of Scientology of California v. United States Dept. of Justice

Docket Nº:76-2506.
Citation:612 F.2d 417
Party Name:CHURCH OF SCIENTOLOGY OF CALIFORNIA, A non-profit corporation, Plaintiff- Appellant, v. UNITED STATES DEPARTMENT OF JUSTICE, William B. Saxbe, Attorney General of the United States; Drug Enforcement Administration, Defendants-Appellees.
Case Date:November 08, 1979
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 417

612 F.2d 417 (9th Cir. 1979)


corporation, Plaintiff- Appellant,



Attorney General of the United States; Drug

Enforcement Administration, Defendants-Appellees.

No. 76-2506.

United States Court of Appeals, Ninth Circuit

November 8, 1979

Rehearing Denied Jan. 30, 1980.

Page 418

Joe Thrasher, Cameron, Shervey & Thrasher, Rice Lake, Wis., for plaintiff-appellant.

Leonard Schaitman, Washington, D. C., on brief; Paul Blankenstein, Washington, D. C., for defendants-appellees.

Appeal from the United States District Court For the Central District of California.

Before BARNES, WALLACE and TANG, Circuit Judges.

BARNES, Senior Circuit Judge.

Church of Scientology of California ("CSC") appeals the district court's upholding of the Drug Enforcement Administration's ("DEA") 1 decision not to disclose certain

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documents sought by CSC under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. The main issue on appeal is the scope of the term "confidential source" as used in the 7(D) exemption of the FOIA, 5 U.S.C. § 552(b)(7)(D). 2


On May 2, 1974, CSC requested that the DEA make available for copying and inspection all records and information in its possession regarding the activities of "The Church of Scientology of California, Church of Scientology, or Scientology". Initially, the DEA admitted the possession of only four documents relating to the "Church of Scientology". It stated that the information was contained in investigative files compiled for law enforcement purposes and therefore exempt from disclosure under the 7th exemption. 3 Subsequently, the DEA received 14 further requests for information as to CSC, its related entities and its founder L. Ron Hubbard.

After exhausting its administrative remedies, CSC brought this FOIA suit in the federal district court on December 4, 1974. In the meantime, the DEA had canvassed all of its 161 field offices, both foreign and domestic, and had located 126 other documents which were subject to CSC's requests. The majority of those materials were released to CSC. However, the DEA refused to produce fifteen documents in their entirety invoking the 7(C) 4 and 7(D) exemptions as to each of the documents plus other FOIA exemptions with respect to particular items. 5 In addition, portions of nine other documents were not released on the grounds of the 7(C) and 7(D) exemptions. 6 Of these twenty-four documents, eleven contained information from non-federal domestic law enforcement authorities, seven had data from foreign law enforcement sources, and the other six contained information supplied by individuals cooperating with the DEA.

At the hearing, the government presented witnesses who testified that information provided by one law enforcement agency to another is customarily given with the understanding that it will not be revealed to members of the general public without the prior approval of the providing source. 7 Further, it was established that foreign, state and local law enforcement entities would at least be very reluctant, if not prohibited by their own laws, from disclosing confidential information to a federal agency which could not guarantee the continued confidentiality of that information.

After hearing oral arguments from the parties, the district court judge examined the twenty-four contested documents In

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camera. Thereafter, he ordered a minor portion of that material to be released as he found it to have been improperly withheld. As to the bulk of the 24 documents, the court found that the government was justified in withholding the remaining documents pursuant to the 7(D) exemption. 8 In reaching his decision, the judge concluded that the term "confidential source" in the 7(D) exemption included foreign, state and local law enforcement agencies. Because the 7(D) exemption was found to be applicable to all of the documents still at issue, the judge did not rule on the other FOIA exemptions which the government had proffered to justify its refusal to release the materials.

CSC now appeals to this court, attacking both the district court's conclusion as to the scope of the 7(D) exemption and the sufficiency of its findings of fact. We are in substantial agreement with the district court's decision below for the reasons stated in its opinion, and we herein affirm. 9


A. Interpreting the 7(D) Exemption

From the language of the statute on its face, the 7(D) exemption excludes from mandatory disclosure investigatory records compiled for law enforcement purposes in two different situations: first, where the production would "disclose the identity of a confidential source" and, second, "in the 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", if the production would disclose "confidential information furnished only by the confidential source." 5 U.S.C. § 552(b)(7) (D). If we were only to look at the language of the 7(D) exemption and give the words utilized therein their plain and ordinary meaning, 10 we would be forced to conclude that the term "confidential source" refers simply to the origin of information, without distinction among the types of originators. Following that reading of the exemption, we would hold that "confidential source" includes foreign, state and local law enforcement agencies in its scope.

All of the cases that we have found which have considered the question, with one exception, have agreed with the above interpretation of the language of the 7(D) exemption. See Nix v. United States, 572 F.2d 998, 1005 (4th Cir. 1978); Lopez Pacheco v. FBI, 470 F.Supp. 1091, 1103 (D.P.R.1979); Varona Pacheco v. FBI, 456 F.Supp. 1024, 1032 (D.P.R.1978); Lesar v. United States, 455 F.Supp. 921, 924 (D.D.C.1978); Cf., Mitsubishu Elec. Corp. v. United States Dep't of Justice, 1977-1 Trade Cases P 61,356 at p. 71,263 (D.D.C.1977) (held that the 7(D) exemption would cover multi-national companies as "confidential sources"); See also Terkel v. Kelly, 599 F.2d 214, 217 (7th Cir. 1979) (Dicta ); Contra Ferguson v. Kelley, 448 F.Supp. 919, 922 (N.D.Ill.1978), Supplemental opinion 448 F.Supp. at 925, On motion for reconsideration 455 F.Supp. 324, 326-27 (N.D.Ill.1978).

However, the sufficiency of a court's reliance solely upon the "plain meaning" of the language of a statute in interpreting its terms has come into question. See generally Murphy, Old Maxims Never Die: The "Plain Meaning Rule" and Statutory Interpretation in the "Modern" Federal Courts, 75 Col.L.Rev. 1299 (1975) ("Muprhy"). Recent pronouncements by the Supreme Court and this court have been somewhat inconsistent on this point. On the one hand, the Court in Train v. Colorado Pub. Interest Research Group, 426 U.S. 1, 96 S.Ct. 1938, 48 L.Ed.2d 434 (1976), held that it was error for the court of appeals to exclude reference to the legislative history of the statute in question when the appellate

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court's reliance on the plain meaning of the words in the statute produced a result which "would have marked a significant alteration of the pervasive regulatory scheme embodied in . . . (another statute)" and when that reliance contributed little to resolving the issue before the court of appeals. Train, supra, 426 U.S. at 23-24, 96 S.Ct. at 1948. In so deciding the Court held that there was no "rule of law" which forbids the use of extrinsic aids in construing the meaning of statutory language however clear the words may appear on "superficial examination". (Quoting from United States v. American Trucking Assns., 310 U.S. 534, 543-44, 60 S.Ct. 1059, 84 L.Ed. 1345 (1940).) Following the holding of the Train case, this circuit has permitted, on occasion, an expansive approach to the utilization of extrinsic aids such as legislative history in statutory interpretation. As stated in Pettis ex rel. United States v. Morrison-Knudsen Co., 577 F.2d 668, 671 (9th Cir. 1978):

We begin by noting that the language of 31 U.S.C. § 232(C) affords no crevice of ambiguity within which to nestle the exception Pettis seeks. It presents a face, smooth, sharp, and unyielding. Nonetheless, we must heed the Supreme Court's recent admonition in Train v. Colorado Public Interest Research Group, 426 U.S. 1, 9-10, 96 S.Ct. 1938, 48 L.Ed.2d 434 (1976), to examine relevant legislative history in the search for the intent of Congress even when the statute is clear and unambiguous on its face. It is always possible that Congress did not quite mean what it said and did not quite say what it meant.

On the other hand, the Supreme Court recently articulated the opposite position and seemingly reaffirmed the former "plain meaning rule". In Tennessee Valley Authority v. Hill, 437 U.S. 153, 184 n. 29, 98 S.Ct. 2279, 2296 n. 29, 57 L.Ed.2d 117 (1978), it was stated that: "When confronted with a statute which is plain and unambiguous on its face, we ordinarily do not look to legislative history as a guide to its meaning." Likewise, this circuit has also recently breathed new life into the rule. See United States v. Rone, 598 F.2d 564, 569 (1979) ("When no ambiguity is apparent on the face of a statute, an examination of legislative history is inappropriate."); Cf., Adams v. Morton, 581 F.2d 1314, 1320 (9th Cir. 1978), Cert. denied, Gros Ventre Tribes of Fort Belknap Indian Reservation, Montana v. United States, 440 U.S. 958, 99 S.Ct. 1498, 59 L.Ed.2d 771 (1979).

The plain meaning rule can be viewed as consisting of two propositions. Initially, the rule stands for the notion that if the language of a statute is clear and there is no ambiguity, then there is no need to "interpret" the language by resorting to the legislative history or other extrinsic aids. See e. g....

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