Church of Scientology of California v. U.S. Postal Service

• Decision Date: 15 December 1980
• Docket Number: No. 79-3655,79-3655
• Citation: 633 F.2d 1327
• Parties: 6 Media L. Rep. 2434 CHURCH OF SCIENTOLOGY OF CALIFORNIA, Plaintiff-Appellant, v. UNITED STATES POSTAL SERVICE et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1327

633 F.2d 1327

6 Media L. Rep. 2434

CHURCH OF SCIENTOLOGY OF CALIFORNIA, Plaintiff-Appellant, v. UNITED STATES POSTAL SERVICE et al., Defendants-Appellees.

No. 79-3655.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 5, 1980.

Decided Dec. 15, 1980.

Barry Leigh Weissman, Weissman & Weinstein, P. C., Beverly Hills, Cal., for plaintiff-appellant.

Alan L. Ferber, Washington, D. C., argued, for defendants-appellees; Leonard Schaitman, Alan L. Ferber, Dept. of Justice, Washington, D. C., on brief.

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

Before WRIGHT and TANG, Circuit Judges, and HANSON, ^* District Judge.

TANG, Circuit Judge:

Church of Scientology (the Church) appeals from the district court's refusal to order the United States Postal Service to comply with the Church's Freedom of Information Act (FOIA) request. The district court decision came after this court remanded the case for consideration of the effect of the 1976 FOIA amendments on the Postal Service's claimed exemption. ¹ The Church contends that the FOIA fully applies to the Postal Service and that the Postal Reorganization Act's investigatory files exemption, 39 U.S.C. § 410(c)(6), is not an exempting statute within the meaning of the amended FOIA, 5 U.S.C. § 552(b)(3). We agree, and reverse the judgment of the district court.

I. Facts

The Postal Reorganization Act, 39 U.S.C. §§ 101-5604, extended the reach of the FOIA to the newly created Postal Service. In accordance with the FOIA, 5 U.S.C. § 552(a)(3), ² the Church sought to obtain any records in possession of the Postal Service that concerned the Church. The Postal Service released numerous documents to the Church, but withheld certain materials, compiled during its investigations of possible criminal offenses.

Unconvinced that the documents were properly withheld, the Church brought a district court action to compel disclosure. After an in camera inspection of the documents, the district court concluded that the files had been compiled for law enforcement purposes. The court granted summary judgment to the Postal Service, holding that the investigatory files were specifically exempted from disclosure by the FOIA, 5 U.S.C. § 552(b)(3) (Exemption 3), ³ which incorporates the postal exemption, 39 U.S.C. § 410(c)(6). ⁴

On appeal, this court remanded to the district court to determine whether section 410(c)(6) qualified as an exempting statute within the meaning of the amended version of Exemption 3. 593 F.2d at 904. The district court was also instructed that if it determined that section 410(c)(6) was such an exempting statute, it should then decide whether the Postal Service had complied with its own regulation, found at 39 C.F.R. § 265.6(c), ⁵ and whether the documents were properly withheld under FOIA Exemptions 5 and 7, ⁶ the alternative grounds claimed by the Postal Service. Id. at 905 n.7.

The parties simultaneously filed motions for summary judgment in the district court, addressing the issues raised in the remand order, reviving old arguments, and formulating new ones. The district court granted the Postal Service's motion for summary judgment finding that (1) section 410(c)(6) constitutes an exempting statute under the amended FOIA Exemption 3; (2) the information was properly withheld as material "compiled for law enforcement purposes; " and (3) the Postal Service regulations are permissive and thus do not require disclosure. The Church again appeals.

II. Section 410(c)(6) as an Exempting Statute

The Church argues that the district court erred in holding that section 410(c) (6) is an exempting statute within the meaning of amended FOIA Exemption 3. As originally enacted, Exemption 3 simply shielded material "specifically exempted from disclosure by statute." In 1976, Congress narrowed Exemption 3 to cover a statute only if it "(A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld ...." ⁷

The legislative purpose of this amendment has been thoroughly discussed elsewhere. For example, in Irons & Sears v. Dann, 606 F.2d 1215, 1219-20 (D.C.Cir.1979), cert. denied, Irons & Sears v. Commissioner of Patents & Trademarks, 444 U.S. 1075, 100 S.Ct. 1021, 62 L.Ed.2d 757 (1980), the court summed up the legislative history by stating:

Congress' goal was to overrule legislatively the Supreme Court's decision in Administrator, FAA v. Robertson, 422 U.S. 255, 95 S.Ct. 2140, 45 L.Ed.2d 164 (1975), which had given an expansive reading to the version of Exemption 3 then in force. The amended text and its legislative history make clear that Congress did not want the exemption to be triggered by every statute that in any way gives administrators discretion to withhold documents from the public. On the contrary, ... (i)t provided that only explicit nondisclosure statutes that evidence a congressional determination that certain materials ought to be kept in confidence will be sufficient to qualify under the exemption (footnotes omitted). ⁸

"Congress did not, however, itself undertake to sort out those nondisclosure statutes that it comprehended as remaining within the exemption from those that it intended to exclude. Instead, it left that task for the courts ...." American Jewish Congress v. Kreps, 574 F.2d 624, 628 (D.C.Cir.1978).

The Postal Service apparently concedes that section 410(c) fails to meet the requirements of subsection (A) of Exemption 3 because it gives the agency complete discretion to grant or withhold investigatory files by providing that the section incorporating the FOIA "shall not require disclosure" in certain cases. ⁹ It contends, however, that the (c)(6) provision need satisfy only one of the two subsections in order to qualify as an FOIA exempting statute, and that it in fact meets the subsection (B) criteria.

a. The Legal Standard

Subsection (B) necessarily contemplates some exercise of administrative discretion, "but its unmistakable thrust, like that of subsection (A), is to assure that the basic policy decision on governmental secrecy be made by the Legislative rather than the Executive branch." Id. The Postal Service argues that the "investigatory files compiled for law enforcement purposes" protected by (c)(6), are "particular types of matters to be withheld," and therefore satisfy subsection (B). It points out that (c)(6) requires no "guesswork" and sets up no "indefinite delineation of categories." Specifying such a concrete category, the Postal Service suggests, is all that subsection (B) requires.

This Postal Service premise, however, rests on too simplistic an analysis of subsection (B) and its judicial gloss. In American Jewish Congress, the District of Columbia Circuit held that section 7(c) of the Export Administration Act, 50 U.S.C. App. § 2406(c), was not an exempting statute under Exemption 3. That statute prohibited disclosure of "information ... deemed confidential or with reference to which a request for confidential treatment is made by the person furnishing such information," unless the agency decides that withholding the information, "is contrary to the national interest." In determining that the requirements of neither subsection (A) nor (B) were satisfied, the court stated:

Nondisclosure is countenanced by Subsection (B) if, but only if, the enactment is the product of congressional appreciation of the dangers inherent in airing particular data and incorporates a formula whereby the administrator may determine precisely whether disclosure in any instance would pose the hazard that Congress foresaw.

574 F.2d at 628-29.

In other words, the policy that the legislature, not the executive, should make decisions about secrecy is frustrated if a statute includes "within its sweep provisions reflecting no more than a vague apprehension that an agency might someday fall heir to sensitive information." Id. at 628.

The American Jewish Congress court, then, suggests two necessary considerations in deciding whether a given "criterion" or enumerated matter satisfies subsection (B). First, a court must consider the underlying congressional intent to exempt material from the FOIA. Somehow Congress must manifest its appreciation of the specific dangers of disclosure, and thus its intent to exempt, or subsection (B) goes unsatisfied. Second, a court must analyze, as it does under subsection (A), the amount of discretion left to the agency. For, as the court noted, statutes setting forth very general benchmarks for secrecy "in fact delegate to administrators the entire burden of identifying the problems disclosure might generate" and thus "do not satisfy subsection (B)'s requirement that Congress have articulated 'particular criteria.' " Id. at 629.

Contrary to the Postal Service's contention, nothing in the line of cases that find certain provisions are exempting statutes within the meaning of Exemption 3 suggests otherwise. For example, in Lee Pharmaceuticals v. Kreps, 577 F.2d 610 (9th Cir. 1978), this court examined section 122 of the Patent Act, 35 U.S.C. § 122, in light of FOIA Exemption 3. Section 122 provides that patent applications must not be released unless the applicant gives authority, release is necessary to carry out other congressional provisions, or the Commissioner determines it is necessary because of "special circumstances." In holding that section 122 is a subsection (B) exempting statute, the court looked to both legislative intent and degree of discretion. It stressed that nothing in the legislative history supported the view that Congress intended to exclude section 122 from FOIA coverage. 577 F.2d at 617. In fact, it found to hold otherwise would mean "destruction of the patent system." Id. Accord Irons & Sears v. Dann, 606 F.2d at 1221. Further, although the court recognized that ...