New England Apple Council v. Donovan, 83-1400

• Citation: 725 F.2d 139
• Decision Date: 18 January 1984
• Docket Number: No. 83-1400,83-1400
• Parties: 99 Lab.Cas. P 34,494 NEW ENGLAND APPLE COUNCIL, et al., Plaintiffs, Appellees, v. Raymond J. DONOVAN, Secretary of Labor, Defendant, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 139

725 F.2d 139

99 Lab.Cas. P 34,494

NEW ENGLAND APPLE COUNCIL, et al., Plaintiffs, Appellees, v. Raymond J. DONOVAN, Secretary of Labor, Defendant, Appellant.

No. 83-1400.

United States Court of Appeals First Circuit.

Argued Nov. 7, 1983.

Decided Jan. 18, 1984.

Nicholas S. Zeppos, Atty., Appellate Staff, Civ. Div., Dept. of Justice, Washington, D.C., with whom J. Paul McGrath, Asst. Atty. Gen., William F. Weld, U.S. Atty., Boston, Mass., Leonard Schaitman, Atty., Appellate Staff, Civ. Div., Dept. of Justice, Sofia P. Petters and Richard T. Galgay, Attys., U.S. Dept. of Labor, Washington, D.C., were on brief, for defendant, appellant.

S. Steven Karalekas, Washington, D.C., with whom John B. Beaty, and Charles, Karalekas, McCahill & Wilson, Washington, D.C., were on brief, for plaintiffs, appellees.

Before COFFIN, Circuit Judge, SWYGERT, ^* Senior Circuit Judge, and BREYER, Circuit Judge.

COFFIN, Circuit Judge.

This case requires us to construe the scope of the personal privacy exemption of the Freedom of Information Act (FOIA), 5 U.S.C. Sec. 552(b)(7)(C). Plaintiffs-appellees, the New England Apple Council (NEAC) and its member growers, seek release of the names of individuals variously involved in an investigation of NEAC conducted in 1979 by the Office of the Inspector General (OIG) of the Department of Labor. NEAC is an organization of east coast apple growers. The grand jury investigation conducted by OIG personnel focused on the activities of the NEAC in its hiring of foreign workers. After several months of investigation, the United States Attorney declined prosecution.

NEAC subsequently filed a FOIA request for all records possessed by the Labor Department concerning the grand jury investigation of NEAC and its member growers. The Labor Department released some documents, but withheld all or portions of others. NEAC then filed suit under FOIA in federal district court to gain access to the withheld information. As part of the court proceedings, the Labor Department filed a Vaughn index affidavit specifying the documents available, those withheld, and the reasons for withholding. Vaughn v. Rosen, 484 F.2d 820 (D.C.Cir.1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974).

For the purposes of this appeal, the withheld material falls into two groups: (1) the names of OIG non-supervisory law enforcement personnel who participated in the grand jury investigation of NEAC; and (2) the name of one individual who provided information to law enforcement personnel during the investigation. The Labor Department claims that the names of its investigators merit the protection of FOIA exemption 7(C), 5 U.S.C. Sec. 552(b)(7)(C), and that the name of the individual who supplied information to the investigators falls within FOIA exemptions 7(C) and 7(D), 5 U.S.C. Sec. 552(b)(7)(C) & (D). ¹

After the parties submitted cross-motions for summary judgment with supporting materials, the district court ordered the release of all information at stake in this appeal. See New England Apple Council, Inc. v. Donovan, 560 F.Supp. 231 (D.Mass.1983). The court ruled that exemption 7(C) provided no basis for withholding the names of OIC law enforcement personnel involved in the investigation. The court also rejected the Labor Department's claim that the identity of the individual who supplied information to law enforcement officials was protected from disclosure under exemptions 7(C) or 7(D). ²

I. FOIA

This court begins from the familiar premise that FOIA exemptions are to be narrowly construed, Department of the Air Force v. Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 1599, 48 L.Ed.2d 11 (1976), to effectuate FOIA's basic policy in favor of disclosure of government-held information. FBI v. Abramson, 456 U.S. 615, 630-31, 102 S.Ct. 2054, 2063-64 (1982). To preserve certain necessary functions of government and to protect individuals who would be damaged by disclosure, FOIA contains nine explicit exemptions from the general rule of disclosure. 5 U.S.C. Sec. 552(b)(1)-(9). These exemptions represent "the congressional determination of the types of information that the Executive Branch must have the option to keep confidential, if it so chooses". EPA v. Mink, 410 U.S. 73, 80, 93 S.Ct. 827, 832, 35 L.Ed.2d 119 (1973); see also Baldrige v. Shapiro, 455 U.S. 345, 352, 102 S.Ct. 1103, 1108, 71 L.Ed.2d 199 (1982).

II. Disclosure of Identities of Law Enforcement Personnel

As stated above, the district court rejected the Labor Department's contention that the names of the non-supervisory law enforcement personnel who participated in the grand jury investigation of the NEAC should fall within exemption 7(C), which protects from disclosure "investigatory records compiled for law enforcement purposes ... to the extent that the production of such records would ... constitute an unwarranted invasion of personal privacy". The court rejected what it perceived to be the government's attempt to read exemption 7(C) as providing "an absolute bar to court ordered disclosure of the names of criminal law enforcement personnel". 560 F.Supp. at 235. The court held that exemption 7(C) protected government officials only from disclosure of "private facts" such as "legitimacy, medical condition, receipt of governmental assistance, or other personal details which an individual generally does not reveal to the public at large". Id.

This interpretation of exemption 7(C) runs against the grain of substantial precedent from other circuits. See Ingle v. Department of Justice, 698 F.2d 259, 269 (6th Cir.1983); Miller v. Bell, 661 F.2d 623, 629-30 (7th Cir.1981), cert. denied, 456 U.S. 960, 102 S.Ct. 2035, 72 L.Ed.2d 484 (1982); Lesar v. United States Department of Justice, 636 F.2d 472, 487 (D.C.Cir.1980); Nix v. United States, 572 F.2d 998, 1005-06 (4th Cir.1978). We agree with the following description, subscribed to by the Seventh and Fourth Circuits, of the privacy interests retained by government officials:

"One who serves his state or nation as a career public servant is not thereby stripped of every vestige of personal privacy, even with respect to the discharge of his official duties. Public identification of any of these individuals could conceivably subject them to harassment and annoyance in the conduct of their official duties and in their private lives."

Miller v. Bell, 661 F.2d at 630 (quoting Nix v. United States, 572 F.2d at 1006). Contrary to the position taken by the district court and NEAC, the protection of exemption 7(C) is not limited to cases involving "private facts" or an actual showing of harassment or other harm to government officials. See Miller v. Bell, 661 F.2d at 629-30; Lesar, 636 F.2d at 487. ³

NEAC contends that the circuit court decisions listed above protected the identities of agents of the Federal Bureau of Investigation (FBI) and that those cases cannot be extended to protect the identities of Labor Department OIG officials. NEAC would have this court distinguish typical FBI activities--including dangerous and sensitive tasks such as arrests, searches, and undercover work--from the typical activities of the OIG officials. NEAC would then have this court conclude that OIG officials have a lesser need than FBI agents to have their names withheld.

The functions of OIG investigators are not so different from the functions of FBI agents as to warrant divergent treatment under FOIA exemption 7(C). Both types of officials investigate federal crimes, serve in undercover capacities, perform surveillance, and conduct investigatory interviews. In the course of a criminal investigation, OIG officials may be deputized to make arrests or execute search warrants. See 28 C.F.R. Sec. 0.112 (1983). These officials must often investigate violent and other crimes in the course of combatting organized crime and labor racketeering, see 18 U.S.C. Sec. 1951 (Hobbs Act) (interference with commerce by threats or violence); 18 U.S.C. Sec. 664 (embezzlement of employee benefit plan funds), and the kind of farm-labor problems investigated in this case.

Even though OIG investigations into white collar criminal activity (of the sort investigated in this case to no avail) might not invite the type of animosity and motivation for reprisal activated by FBI searches and arrests pursuant to violent crimes, the individual officer's interest in retaining the capability to perform his tasks effectively by avoiding untoward annoyance or harassment is no less significant. The potential for this annoyance or harassment need not rise to the level of physical endangerment before the protection of 7(C) may be invoked. See Miller v. Bell, 661 F.2d at 630; Nix v. United States, 572 F.2d at 1006 & n. 8. ⁴ OIG officials who regularly investigate either businesses or unions could be neutralized if the industry trade association or labor union could obtain the names of investigators whenever those investigators probed the practices of their targets.

The district court's overly narrow interpretation of the OIG officials' privacy interest is compounded by the court's failure to balance the individuals' interest in having the government withhold their names and the public interest in disclosure. Exemption 7(C) permits the government to withhold law enforcement investigatory records only if disclosure would "constitute an unwarranted invasion of personal privacy". (Emphasis added). The modifier "unwarranted" requires courts to balance the competing interests at stake. See, e.g., Diamond v. FBI, 707 F.2d 75, 77 (2d Cir.1983) (balancing test mandated under exemption 7(C)), petition for cert. filed, 52 U.S.L.W. 3141 (U.S. Aug. 11, 1983); Fund for Constitutional Government v. National Archives & Records Service, 656 F.2d 856, 862 (D.C.Cir.1981) (exemption 7(C) requires balancing privacy interest against public interest in disclosure); Sands v. Murphy, 633 F.2d 968, 971 n. 4 (1st Cir.1980) (exemption 7(C) invites balancing); Providence Journal...