670 F.2d 1051 (D.C. Cir. 1981), 80-1278, Crooker v. Bureau of Alcohol, Tobacco & Firearms

Docket Nº:80-1278.
Citation:670 F.2d 1051
Party Name:Michael Alan CROOKER, Appellant, v. BUREAU OF ALCOHOL, TOBACCO & FIREARMS, et al.
Case Date:December 08, 1981
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 1051

670 F.2d 1051 (D.C. Cir. 1981)

Michael Alan CROOKER, Appellant,

v.

BUREAU OF ALCOHOL, TOBACCO & FIREARMS, et al.

No. 80-1278.

United States Court of Appeals, District of Columbia Circuit

December 8, 1981

Argued May 28, 1981.

As Amended Dec. 16, 1981.

Katherine A. Meyer, with whom David C. Vladeck and Alan B. Morrison, Washington, D.C., were on the brief for appellant.

Michael Kimmel, Atty., Dept. of Justice, with whom Thomas S. Martin, Acting Asst. Atty. Gen., Charles F. C. Ruff, U. S. Atty. and Leonard Schaitman, Atty., Dept. of Justice, Washington, D.C., were on the brief for appellees. John A. Terry, Michael W.

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Farrell and Barry M. Tapp, Asst. U. S. Attys., Washington, D.C., also entered appearance for appellees.

Victor H. Kramer and Douglas L. Parker, Washington, D.C., were on the brief for amicus curiae, Jordan and Wasserstrom urging affirmance.

Before ROBINSON, Chief Judge, and WRIGHT, TAMM, MacKINNON, ROBB, WILKEY, WALD, MIKVA, EDWARDS and GINSBURG, Circuit Judges.

TABLE OF CONTENTS Page I. BACKGROUND ............................................... 1053 II. EXEMPTION 2 AND ITS LEGISLATIVE HISTORY ................... 1055 A. The Structure of FOIA .................................. 1055 B. The Language and Legislative History of Exemption 2 .... 1056 1. FOIA in the Senate .................................. 1057 2. FOIA in the House ................................... 1059 III. OTHER INDICATIONS OF CONGRESSIONAL INTENT ................. 1061 A. Section (a)(2)(C) ...................................... 1062 B. Section (b)(7)(E) ...................................... 1063 IV. CONCLUSIONS TO BE DRAWN FROM THE LEGISLATIVE HISTORY ...... 1065 V. THE CASE LAW ON EXEMPTION 2 ............................... 1066 A. Supreme Court Precedent ................................ 1066 B. D.C. Circuit Case Law .................................. 1066 C. Case Law in Other Circuits ............................. 1077 1. Cases Relying on Section (a)(2)(C) .................. 1077 2. Cases Relying on Exemption 2 ........................ 1071 VI. DISPOSITION OF THE PRESENT CASE ........................... 1072 VII. CONCLUSION ................................................ 1075

Opinion for the court filed by Circuit Judge EDWARDS. [*]

Concurring opinions * filed by Circuit Judge MacKINNON, Circuit Judge MIKVA and Circuit Judge GINSBURG.

Dissenting opinion filed by Circuit Judge WILKEY.

EDWARDS, Circuit Judge:

In Department of the Air Force v. Rose, 425 U.S. 352, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976), the Supreme Court left undecided the question whether Exemption 2 of the Freedom of Information Act (FOIA) 1 permits

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a federal agency to withhold documents whose "disclosure may risk circumvention of agency regulation." 2 In the present case we are presented squarely with that question.

This appeal involves a claim by the Government that portions of an agent's training manual of the Bureau of Alcohol, Tobacco & Firearms (BATF) should not be released pursuant to FOIA since to do so "would benefit those attempting to violate the law and avoid detection." 3 Careful analysis of the statutory language of FOIA, its legislative history, and the case law leads us to conclude that Congress enacted Exemption 2 to shield from disclosure materials such as the portions of the BATF manual at issue here. Accordingly, we hold that since the document for which disclosure is sought meets the test of "predominant internality," and since its disclosure significantly risks circumvention of federal statutes or regulations, the document is exempt from disclosure under Exemption 2.

Nothing in this decision should be taken to question the result reached in our previous decision in Jordan v. United States Dep't of Justice, 591 F.2d 753 (D.C.Cir.1978) (en banc). While our decision may appear inconsistent with one of the bare legal holdings in Jordan, see id. at 771, we nevertheless believe that from the facts as presented in Jordan, the result in that case would be identical under the test we announce today. It is the rationale in Jordan we reject insofar as it suggests that virtually all law enforcement manuals must be disclosed under FOIA.

I. BACKGROUND

In mid-1978 Michael Crooker filed a FOIA request with the Bureau of Alcohol, Tobacco & Firearms, seeking a copy of an agency manual entitled "Surveillance of Premises, Vehicles and Persons-New Agent Training." Complaint P 5, located in Record (R.) at 1. BATF initially denied Crooker's request in its entirety; however, following an administrative appeal, G. R. Dickerson, the Director of BATF, ordered the release of the manual except for portions of pages eight through twenty-nine. In his affidavit to the District Court, Director Dickerson wrote that "(t)he deletions which appear in the document released to Mr. Crooker are all based on 5 U.S.C.

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§§ 552(a)(2)(C) and (b)(2) (Exemption 2)," 4 and that portions of the manual were withheld because their release "would benefit those attempting to violate the law and avoid detection." Affidavit of G. R. Dickerson, R. at 10. 5

After receiving Director Dickerson's decision on his administrative appeal, Crooker filed a pro se complaint in the District Court seeking to compel BATF officials to produce the entire BATF manual. Complaint P 15, R. at 1. Crooker subsequently moved for summary judgment, but did not support his motion with any affidavits or other documents. 6

In response, the Government filed a "Motion to Dismiss or, in the Alternative, for Summary Judgment." R. at 10. In support of its motion, the Government included Dickerson's affidavit, as well as original and updated versions of the BATF manual for in camera inspection. The Government's "Statement of Material Facts As to Which There Is No Genuine Issue" consisted solely of the first eight paragraphs of Dickerson's affidavit. See R. at 10.

Crooker responded to the Government's motion by filing a memorandum of points and authorities, and renewing his own plea for summary judgment. See Reply Memorandum, R. at 12. Crooker submitted no affidavits with his Reply Memorandum, and he made no attempt to contest the assertion in Dickerson's affidavit that release of the entire BATF manual "would benefit those attempting to violate the law and avoid detection." Rather, Crooker argued that "we are dealing with a manual that directly affects the public at large: surveillance of members of the public by federal authorities. The citizenry certainly has a significant interest in the manner in which they are spied on by agents of the federal government." Reply Memorandum, R. at 12. 7

After examining the BATF manual in camera, the District Court granted the Government's motion for summary judgment and denied Crooker's motion for summary

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judgment as well as his request for attorney's fees and costs. In its brief order, the court held the material to be protected from disclosure under Exemption 2, citing this court's decision in Cox v. United States Dep't of Justice, 601 F.2d 1 (D.C.Cir.1979). See Order, R. at 13.

Crooker appealed the District Court's decision, 8 and a three-judge panel of this court decided without argument on November 12, 1980, that, under the holding of Jordan v. United States Dep't of Justice, 591 F.2d 753 (D.C.Cir.1978) (en banc), the withheld portions of the BATF manual were not protected from disclosure by Exemption 2. On January 30, 1981, a majority of the full court of appeals voted to vacate the panel opinion and rehear the case en banc. The only issue on appeal before this court is whether certain portions of the BATF manual-"Surveillance of Premises, Vehicles and Persons-New Agent Training"-are exempt from disclosure under Exemption 2 of FOIA. 9

II. EXEMPTION 2 AND ITS LEGISLATIVE HISTORY

A. The Structure of FOIA

Congress enacted the Freedom of Information Act, 5 U.S.C. § 552 (1976 & Supp. III 1979), in 1966 to replace section 3 of the Administrative Procedure Act, finding the existing statute to be "full of loopholes which allow agencies to deny legitimate information to the public." S.Rep.No.813, 89th Cong., 1st Sess. 3 (1965). It is clear that FOIA was designed to embody "a general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language and to provide a court procedure by which citizens and the press may obtain information wrongfully withheld." Id.

As presently enacted, FOIA contains three distinct subsections setting forth the circumstances under which an agency must release information to the public. 10 Section (a)(1) covers information that must be published in the Federal Register, and section (a)(2) covers materials that must be made "available for public inspection and copying ... unless the materials are promptly published and copies offered for sale." Section (a)(3), under which Crooker requested the BATF manual, provides:

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 describes such records and (B) is made in accordance with published rules ... shall make the records promptly available to any person.

5 U.S.C. § 552(a)(3) (1976).

Section (b) of the FOIA sets forth nine exemptions to disclosure. 11 In particular,

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section (b)(2), commonly called Exemption 2, provides that:

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

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

...

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