Aspin v. Department of Defense

• Decision Date: 26 November 1973
• Docket Number: No. 72-2147.,72-2147.
• Citation: 491 F.2d 24
• Parties: Les ASPIN, Appellant, William B. Broydrick et al. v. DEPARTMENT OF DEFENSE, Melvin R. Laird, Secretary of Defense, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

491 F.2d 24 (1973)

Les ASPIN, Appellant, William B. Broydrick et al. v. DEPARTMENT OF DEFENSE, Melvin R. Laird, Secretary of Defense, et al.

No. 72-2147.

United States Court of Appeals, District of Columbia Circuit.

Argued September 24, 1973.

Decided November 26, 1973.

Benny L. Kass, Washington, D. C., for appellants.

David G. Larimer, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty., John A. Terry and Michael A. Katz, Asst. U. S. Attys., were on the brief, for appellees.

Before TAMM, MacKINNON and ROBB, Circuit Judges.

TAMM, Circuit Judge:

Honorable Les Aspin¹ appeals from an order of the United States District Court for the District of Columbia, granting appellees' motion for summary judgment in a suit brought pursuant to § 552 of the Administrative Procedure Act, 5 U.S.C. § 552(a)(3) (1970).² Appellant Aspin asks that appellee release a document entitled "Department of the Army Review of the Preliminary Investigations into the My Lai Incident." This document is commonly known as the "Peers Commission Report" because it was written by Lieutenant General William R. Peers, U.S.A. We will follow this practice and refer herein to the "Peers Commission Report." The trial court held that the entire Peers Commission Report was exempt from FOIA disclosure because: (1) it was an investigatory file compiled for law enforcement purposes, thus exempt under 5 U.S.C. § 552(b)(7) (1970);³ and (2) it was an intra-agency memorandum within the exemption from disclosure created by 5 U.S.C. § 552(b)(5) (1970).⁴ For the reasons stated below, we affirm.

I. The Facts

In 1969 Mr. Ronald Ridenhour, a former Army enlisted man, wrote to the Secretary of Defense and others inquiring into alleged atrocities committed by elements of the 23rd Army Division during the period 16-19 March 1968. On November 26, 1969, as a result of Mr. Ridenhour's communication, Stanley R. Resor, then Secretary of the Army, and General William C. Westmoreland, then United States Army Chief of Staff, directed Lieutenant General William R. Peers to begin an investigation to determine:

the nature and the scope of the original U.S. Army investigation(s) of the alleged My Lai (4) incident which occurred 16 March 1968 in Quang Ngai Province, Republic of Vietnam. Your investigation will include a determination of the adequacy of the investigation(s) or inquiries on this subject, their subsequent reviews and reports within the chain of command, and possible suppression or withholding of information by persons involved in the incident.⁵

Affidavits submitted to the trial court reveal that the focus of the investigation was to be "primarily directed toward discovering and toward obtaining evidence of possible offenses under the Uniform Code of Military Justice . . . with a view toward prosecution if warranted."⁶ Pursuant to this directive, General Peers, conducted an extensive investigation during the period from December 1969 to March 1970. The Commission interrogated many witnesses and assembled documentary evidence.⁷ While the inquiry was primarily concerned with the depth and adequacy of the investigation of the My Lai incident conducted by officers of the 23rd Division, it was also necessary to investigate the alleged criminal conduct occurring during the My Lai operation itself.⁸

The Peers Commission Report, here sought by appellant, is the end product of these investigations. The report, submitted March 14, 1970, consists of forty-two bound books which are arranged into four volumes. Volume I, comprising twelve chapters and three annexes, contains the actual Report of Investigation. Volume II consists of thirty-three books of verbatim transcripts of witnesses' testimony. Volume III is comprised of seven books of documentary evidence (e.g. reports, maps, photographs etc.). Volume IV contains statements received by Army criminal investigators as part of the Peers Commission investigation or other criminal investigations.⁹

We note that certain portions of the Report bear the security classification "Confidential" or "Secret."¹⁰ They were so classified by General Peers pursuant to authority delegated to him under Executive Order No. 10501, 3 C.F.R. 280 (January 1, 1970), as amended.¹¹ Certain portions of the Peers Commission Report were released to the public in March 1970,¹² and are contained in the record before us. The entire Peers Commission Report was given to the Armed Services Committees of both houses of Congress.

The Army, relying upon evidence compiled by General Peers and contained in his report, brought charges against fifteen officers for violations of the Uniform Code of Military Justice.¹³ One of these prosecutions, that of First Lieutenant William L. Calley, culminated in a conviction of murder. Lieutenant Calley's appeal is now pending before the Court of Military Appeals.

Appellant, on February 18, 1972, wrote to then Secretary of Defense Melvin Laird, requesting public release of the entire report pursuant to FOIA. On March 1, 1972, Mr. Robert W. Berry, General Counsel of the Army, replied stating that it was the opinion of the Army that release to the public would not be possible at that time. Appellant then commenced this action, as a private citizen,¹⁴ for public release of the entire Peers Commission Report.

II. The Trial Court Ruling

The trial court, in granting appellees' motion for summary judgment, found that "the documents sought are investigatory files compiled for law enforcement purposes and are exempt from disclosure because of specific exemptions provided in the Freedom of Information Act. 5 U.S.C. § 552(b)(7)."¹⁵ In so holding the court stated that the proper test for determining whether the investigatory files exemption of § 552(b)(7) applies is "whether the files sought relate to anything that can fairly be characterized as an enforcement proceeding."¹⁶ An examination of the Berry, Westmoreland and Ryker affidavits was found persuasive of the fact that the report "figured prominently in the initiation of subsequent court-martial proceedings."¹⁷

The trial court also found that Volume I of the Peers Commission Report enjoyed additional exemption from disclosure as an intra-agency memorandum within the meaning of 5 U.S.C. § 552(b)(5). Volume I was held to satisfy § 552(b)(5) because it was made up "principally of internal working papers in which opinions are expressed and policies formulated and recommended."¹⁸ Having found that Volume I was so exempt, the trial court held that because it viewed all other volumes as "appendices to Volume I," the remaining material would "share the same protection accorded Volume I."¹⁹

III.

Appellant urges that the trial court erred in its holding that the Peers Commission Report constituted "investigatory files compiled for law enforcement purposes" within the meaning of FOIA § 552(b)(7). Two distinct errors are asserted: (1) that the report is not an "investigatory file"; and (2) that even if it were once an "investigatory file", the report is no longer entitled to § 7 exemption because no courts-martial are to be held in the future; i.e. that a § 7 exemption cannot, apparently as a matter of law, continue as to documents which were involved in prior law enforcement proceedings.

In support of the first alleged error, appellant directs this court's attention to the letter which Lieutenant General Peers received from his superiors directing him to commence an investigation. There it was said:

Your investigation will be concerned with the time period beginning March 1968 until Mr. Ronald L. Ridenhour plaintiff in this action sent his letter, dated 29 March 1969 to the Secretary of Defense and others. The scope of your investigation does not include, nor will it interfere with, ongoing criminal investigations in progress.²⁰

Further, appellant points to language in the Affidavit of General Westmoreland:

4. General Peers subsequently expanded the scope of his inquiry to include allegations of criminal offenses at My Lai (4). Notwithstanding such expanded scope, however, the inquiry remained independent of investigative efforts of the CID.²¹

Relying upon the emphasized text supra, appellant argues in conclusory fashion that:

It would appear that this language is quite clear on its face. General Peers was not directed to make an investigation for law enforcement purposes; rather, he was instructed to investigate the investigation, so as to satisfy the Army, the Congress, and indeed the public that the Army was able to keep its own house in order.²²

It is our opinion that appellant's attempt to characterize the Peers Commission activities as an "investigation of the investigation" is but a frivolous semantic device. The trial court's duty in FOIA cases is clear. It must examine the total record to determine "whether the files sought . . . relate to anything that can fairly be characterized as an enforcement proceeding." Bristol-Myers Co. v. FTC, 138 U.S.App.D.C. 22, 424 F.2d 935, 939, cert. denied, 400 U.S. 824, 91 S.Ct. 46, 27 L.Ed.2d 52 (1970). In the recent case of Weisberg v. United States Department of Justice, 160 U.S.App.D.C. ___, 489 F.2d 1195 (1973) this court, sitting en banc, held that a trial court's determination must focus on "how and under what circumstances the files were compiled . . . ." Weisberg, supra, at ___, 489 F.2d at 1202.

Our own careful review of the entire record, Vaughn v. Rosen, 157 U.S.App. D.C. 340, at 345, 484 F.2d 820, at 825 convinces us that the trial court was correct in holding that the Peers Commission Report met the criteria of the § 7 exemption. The detailed affidavits submitted amply demonstrate the stated purposes of the investigation, the manner in which it was conducted, and its results.

The purpose of the investigation appears clear: to determine the adequacy of the United States Army's investigation of the My Lai incident to ascertain whether any officers involved suppressed or withheld information.²³ General...