Binion v. U.S. Dept. of Justice, 82-5316
| Decision Date | 06 January 1983 |
| Docket Number | No. 82-5316,82-5316 |
| Citation | 695 F.2d 1189 |
| Parties | Lester Ben BINION, Plaintiff-Appellee, v. UNITED STATES DEPARTMENT OF JUSTICE; William F. Smith, Attorney General; Edward C. Schults, Deputy Attorney General; David C. Stephenson, Acting Pardon Attorney; Raymond P. Theim, Attorney-Advisor; Rudolph W. Giuliani, Associate Attorney General; Quinlan J. Shea, Jr., Director, Office of Privacy and Information Appeals, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Ninth Circuit |
William G. Cole, Atty., Washington, D.C., for defendants-appellants.
Ronald Plesser, Blum & Nash, Washington, D.C., for plaintiff-appellee.
Appeal from the United States District Court for the District of Nevada.
Before WRIGHT, ANDERSON, and CANBY, Circuit Judges.
The Department of Justice appeals from an order mandating the disclosure of materials, requested under the Freedom of Information Act (FOIA), 5 U.S.C. Sec. 552, and the Privacy Act, id. Sec. 552a, about plaintiff's application for a presidential pardon.
This appeal presents us with two issues of first impression:
(1) Does the Privacy Act exemption for a criminal law enforcement agency's system of specified records cover the Pardon Attorney's deliberative documents created after completion of the pardon applicant's sentence?
(2) Does the FOIA exemption for "investigatory records compiled for law enforcement purposes" cover FBI records collected solely for a pardon investigation?
The lower court answered both questions in the negative. We reverse.
The plaintiff, Lester Ben Binion, was convicted of a federal tax offense over 25 years ago. He completed all obligations connected with that conviction on November 28, 1966. During and after his probation he made applications for a presidential pardon.
The Constitution confers on the President "power to grant reprieves and pardons for offenses against the United States." U.S. Const. Art. II, Sec. 2, cl. 1. A presidential pardon is an act of grace. The applicant has no due process rights in the process. "Seldom, if ever, has this power of executive clemency been subjected to review by the courts." Solesbee v. Balkcom, 339 U.S. 9, 12, 70 S.Ct. 457, 458, 94 L.Ed. 604 (1950).
The Pardon Attorney in the Department of Justice receives, investigates, and makes recommendations about pardon applications for the Attorney General, who advises the President. 28 C.F.R. Secs. 0.35-.36, 1.1-1.7. In investigating these applications, the Pardon Attorney may use reports or services of other agencies, including the FBI. Id. Secs. 0.35, 1.7(a). He requested the FBI's assistance in verifying Binion's pardon application. That bureau made investigations and compiled records with the results, incorporating information from unrelated criminal investigations.
Binion's pardon applications were unsuccessful. In 1979, while a new application was pending, he made requests to the Department of Justice under the FOIA and the Privacy Act for all records about his pardon applications.
Binion's disclosure requests were denied. After exhausting his administrative remedies, he filed this action seeking an order directing release of the materials.
The government subsequently released most of the information to him. Of the 49 documents the FBI had compiled, all were released, minus certain excisions. Of the 140 documents the Pardon Attorney had compiled, 111 were released in full and 17 in part.
The trial judge concluded that, unless the remaining material came within both an FOIA exemption and a Privacy Act exemption, it had to be disclosed. The government has not pursued this issue, and it is not before us in this appeal. In any event, the Privacy Act specifically forbids reliance on an FOIA exemption to withhold material disclosable to the individual under the Privacy Act. 5 U.S.C. Sec. 552a(q).
The Office of the Pardon Attorney withheld from 39 documents it had compiled on Binion material containing advisory information, deliberative comments, opinions, and recommendations. It cited the FOIA's "deliberative process" exemption, 5 U.S.C. Sec. 552(b)(5) ("Exemption 5") and the Privacy Act's "general exemption," id. Sec. 552a(j)(2), 1 for these withholdings. The trial judge determined that as a matter of law the Pardon Attorney's documents did not fit within the language of the applicable Privacy Act exemption and ordered them disclosed.
The government moved for reconsideration, arguing that ten of the documents had been compiled before Binion's "release from supervision" and therefore qualified for the Privacy Act exemption. Apparently viewing this as yet another dilatory tactic by the government, the trial judge refused to credit the argument and responded that in any event the government had failed to substantiate its FOIA Exemption 5 claim for these withholdings.
The FBI withheld from its reports only material identifying special agents, confidential sources, and third parties. This material is concededly exempt from Privacy Act disclosure.
But the trial judge reasoned that any material originated solely in response to Binion's pardon application was not "compiled for law enforcement purposes" and therefore did not fit the FOIA exemption invoked, 5 U.S.C. Sec. 552(b)(7). 2 He then ordered this material disclosed, even though it revealed the identity of confidential sources.
Ultimately he allowed the FBI to withhold material, incorporated into Binion's pardon file, that had been collected in independent criminal investigations. Only the identifying material in six documents is at issue here.
The information sought is sensitive:
Release of such information to the subject would jeopardize the integrity of the investigative process, invade the right of candid and confidential communications among officials concerned with recommending clemency decisions to the President, and disclose the identity of persons who furnished information to the Government under an express or implied promise that their identities would be held in confidence.
28 C.F.R. Sec. 16.79.
The Privacy Act, 5 U.S.C. Sec. 552a, permits one to have access to records federal agencies maintain on him so that he may correct inaccuracies. Id. Sec. 552a(d). Agencies may promulgate rules to exempt specified classes of information from the access provisions. The Office of the Pardon Attorney has done so, see 28 C.F.R. Sec. 16.79, to exempt the material specified in the Privacy Act's "general exemption," 5 U.S.C. Sec. 552a(j)(2).
This general exemption allows criminal law enforcement agencies, including pardon authorities, to withhold three categories of information: (A) "rap sheets"; (B) information compiled for the purpose of a criminal investigation; and (C) reports on an individual compiled at any stage of enforcement proceedings between arrest or indictment through release from supervision. See note 1, supra.
The trial judge determined that the withheld pardon attorney documents did not fit the statutory description in any of the three categories.
The Pardon Attorney's first ten documents were compiled before November 28, 1966, the date on which Binion completed the obligations connected with his conviction. Subsection (C) of the general exemption clearly protects these from Privacy Act access. The remaining 29 documents, compiled thereafter, present us with a more difficult problem.
Pardons for federal offenses are constitutionally committed to the sole discretion of the President. He must be able to rely on the untrammeled advice of those charged with the task of assisting him in exercising this discretion.
As the Supreme Court said in an opinion dealing with the President's pardon authority:
Schick v. Reed, 419 U.S. 256, 263, 266, 95 S.Ct. 379, 383, 385, 42 L.Ed.2d 430 (1974).
Thus we examine this Privacy Act exemption with some care, to determine whether Congress intended to subject the Pardon Attorney's deliberations to disclosure. We do not believe that Congress so intended.
Legislative history reveals an ongoing concern that Privacy Act disclosures not interfere with law enforcement activities. The original Senate bill exempted law enforcement information if the access provisions would "seriously damage or impede the purpose for which the information is maintained." S.Rep. No. 1183, 93d Cong., 2d Sess. 75 (1974), reprinted in 1974 U.S.Code Cong. & Ad.News 6916, 6989.
The House version, which was substituted in large part for the Senate version, exempted criminal justice records. The House Report explained,
The Committee believes that such a broad exemption is permissible for these ... records because they contain particularly sensitive information.... Criminal justice records are so different in use from other kinds of records that their disclosure should be governed by separate legislation.
H.R.Rep. No. 1416, 93d Cong., 2d Sess. 18 (1974), reprinted in Senate & House Comms. on Gov't Operations, 93d Cong., 2d Sess., Legislative History of the Privacy Act of 1974, S. 3418 (P.L. 93-579): Source Book on Privacy 294, 311 (1976) (hereinafter cited as Source Book on Privacy).
The House Report urged agencies to make exempt records available to the person concerned when they could do so "without clearly infringing on the ability of the agencies to fulfill their missions," implying that the purpose of the general exemption was to protect each agency's central mission. Id. See also 120 Cong.Rec. 40,411 (1974) (statement of Sen. Hruska); id. at 36,906-07 (statements of Sens. Hruska and Percy).
The threshold language of the general exemption explicitly includes pardon authorities among...
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