Canadian Javelin v. Securities & Exch. Com'n, Civ. A. No. 79-0643.

• Decision Date: 30 October 1980
• Docket Number: Civ. A. No. 79-0643.
• Citation: 501 F. Supp. 898
• Parties: CANADIAN JAVELIN, LTD., Plaintiff, v. SECURITIES AND EXCHANGE COMMISSION et al., Defendants.
• Court: U.S. District Court — District of Columbia

501 F. Supp. 898

CANADIAN JAVELIN, LTD., Plaintiff, v. SECURITIES AND EXCHANGE COMMISSION et al., Defendants.

Civ. A. No. 79-0643.

United States District Court, District of Columbia.

October 30, 1980.

COPYRIGHT MATERIAL OMITTED

William M. Hoiles, Washington, D. C., for plaintiff.

Stephen E. Cavan, Robert Lipsher, Linda D. Fienberg, Paul Gonson, Michael K. Wolensky, Securities and Exchange Commission, Washington, D. C., for defendants.

MEMORANDUM OPINION

AUBREY E. ROBINSON, Jr., District Judge.

Before the Court are Cross Motions for Summary Judgment in the above captioned Freedom of Information Act litigation. 5 U.S.C. § 552(b), et seq. (1976). Plaintiff is seeking approximately 700 documents which Defendant has withheld pursuant to Exemptions 5, 7(C) and 7(D). Id. §§ 552(b), 5, 7(C) and 7(D) (1976).¹ The sought documents were generated by a SEC investigation of Canadian Javelin (CJ) and subsequent enforcement actions brought against the Company.²

I. The Claimed Exemptions

Defendants contend that staff papers are privileged under the work production doctrine, under the attorney-client privilege and under governmental privilege and thus, under Exemption 5, were properly withheld. The SEC argues that a district court's finding in a civil discovery context that claims of privilege as to the sought documents were "well founded"³ is dispositive of the Exemption 5 claims in this case. The SEC further contends that staff summaries of fact are exempt because they reflect staff judgment and are part of the deliberative process which Exemption 5 protects.

As to information provided the SEC by foreign sources, the SEC maintains that information is exempt under Exemption 5 as "inter-agency/intra-agency memos." The SEC also relies on Exemption 7(D), which protects confidential sources to the extent release of investigatory records would reveal those sources, in withholding foreign source information. The SEC asserts that the foreign source information was from a confidential source received under a promise of confidentiality and thus is subject to Exemption 7(D).

Names, addresses, social security numbers and phone numbers of individuals mentioned in securities transactions reports, bank records, list of subscribers, SEC memos and other records were withheld pursuant to Exemption 7(C), the investigatory records/personal privacy exemption. Plaintiff maintains that the individuals' names and other information are needed in connection with litigation in which CJ is engaged.

Finally, Defendants assert that the Chairman of the SEC, the General Counsel and the FOIA officer are not proper parties defendant in the FOIA action.

II. The Exemption Five Issues

Exemption 5 of FOIA allows an agency to withhold "inter agency or intra-agency memoranda or letters which would not be available by law to a party other than an agency in litigation with an agency." 5 U.S.C. § 552(b)(5) (1976). The basis of this exception to the liberal disclosure policy of the Act is:

"the free and uninhibited exchange and communication of opinions, ideas, and points of view a process as essential to the wise functioning of a big government as it is to any organized human effort."

Ackerly v. Ley, 420 F.2d 1336, 1341 (D.C. Cir.1969). Defendants rely on Exemption 5 in withholding SEC files relating to the Canadian Javelin investigation and enforcement proceedings, including factual summaries and information submitted by foreign sources.

Defendants are correct in asserting that Exemption 5 incorporates civil discovery privileges. See Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854, 862 (D.C.Cir.1980). The attorney-client privilege is incorporated into Exemption 5, Mead Data Central v. Department of Air Force, 566 F.2d 242, 256 (D.C.Cir.1977), as is the work product doctrine, NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 154, 95 S.Ct. 1504, 1518, 44 L.Ed.2d 29 (1975), and governmental privilege. Id. at 150, 95 S.Ct. at 1516.

Defendants are mistaken, however, when they suggest that a prior ruling in a federal district court on civil discovery privileges as to the sought documents is controlling in this FOIA case. An examination for purposes of Exemption 5 is independent of any other judicial examination. H.Rep.No. 793, 95th Cong., 1st Sess. at 6. The decisions reached by this Court are based upon an independent examination and are not premised on the earlier federal court examination of the claimed privileges.⁴

Defendants do not make out a case for employment of Exemption 5 via the attorney-client privilege. A fundamental prerequisite of the attorney-client privilege is confidentiality at the decision making level both at the time of the communication and subsequent to it. Coastal States, 617 F.2d at 863. Such confidentiality requires limited access to the documents within the agency itself. Id. Nowhere in the pleadings or affidavits does the SEC demonstrate the confidentiality required for invocation of the attorney-client privilege. Therefore, no documents may be withheld pursuant to Exemption 5 through the attorney-client privilege.

Defendants correctly applied Exemption 5 through the work product doctrine. Materials are exempt from disclosure under the work product doctrine, as embodied in Exemption 5, so long as prepared in anticipation of litigation. Jordan v. Department of Justice, 591 F.2d 753, 775 (D.C.Cir.1978). Inasmuch as the files requested by Plaintiff concern three court enforcement actions against CJ,⁵ and since investigations by the SEC are conducted with an eye towards litigation, 15 U.S.C. § 780 (1976), those documents prepared by SEC attorneys or professionals working under attorney supervision are exempt from disclosure.

Predecisional staff papers, including memoranda sent by the Division of Enforcement to the Commission (e. g. Nos. 180, 269 and 458) were properly withheld under the governmental privilege leg of Exemption 5. That exemption is primarily intended to protect the decision making processes of government. NLRB v. Sears, Roebuck & Co., 421 U.S. at 150, 95 S.Ct. at 1516. Plaintiff maintains that factual summaries, even though part of predecisional memoranda, may not be withheld. Plaintiff is wrong in its contention.

Summaries of factual evidence may be exempt insofar as they reflect staff judgment. Montrose Chemical Corp. v. Train, 491 F.2d 63, 68-71 (D.C.Cir.1974). See also Lead Industries Association, Inc. v. OSHA, 610 F.2d 70 (2d Cir. 1979). Disclosing factual summaries may reveal "the deliberative process of summarization itself" by demonstrating which facts the SEC considered significant in pursuing the enforcement actions against CJ. Lead Industries, 610 F.2d at 85. In Washington Research Project, Inc. v. HEW, 504 F.2d 238, 250-51 (D.C.Cir.1974), cert. denied, 421 U.S. 963, 95 S.Ct. 1951, 44 L.Ed.2d 450 (1975), the Court explained that "the judgmental element arises through the necessity to select and emphasize certain facts at the expense of others." Id. Exemption 5 was drafted to protect from public view such deliberative processes of federal agencies. NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975). The Exemption 5 claim of the SEC as to the factual summaries prepared by its staff seem well founded.

Not so well founded is the SEC's employment of Exemption 5 to shield information supplied by "foreign sources." Exemption 5 has been extended to cover information provided by outside consultants despite the fact that the exemption on its face protects only inter-/intra-agency memoranda. See, e. g., Washington Research Project v. HEW, 504 F.2d 238 (D.C.Cir. 1974).⁶ While there appears no reason why the opinions and recommendations of temporary foreign consultants should not be protected under Exemption 5, as are those of other outside entities, this case is not an appropriate one for extension of Exemption 5 to cover the instant foreign source information. The materials provided by the foreign sources were already in existence at the time the SEC requested them. The foreign sources did not compile or generate previously nonexistent material; no materials were provided which were advisory or consultative. Since "Exemption 5 was created to protect the deliberative process of the government by ensuring that persons in an advisory role would be able to express their opinions freely to agency decision makers without fear of publicity," Ryan v. Department of Justice, 617 F.2d 781, 789 (D.C.Cir.1980), citing H.R.Rep.No.1497, 89th Cong., 2d Sess. 10 (1966); S.Rep.No.813, 89th Cong., 1st Sess. 9 (1965), U.S.Code Cong. & Admin. News 1966 p. 2418, the purpose of that exemption would not be furthered by shielding foreign source file material which was not created for purposes of advice or opinion to the SEC in its consideration of an agency matter. The SEC is therefore not allowed to use Exemption 5 to withhold the foreign source material.⁷

III. The Exemption Seven Issues

Although the SEC cannot employ Exemption 5 to shield foreign source information, its use of Exemption 7(D) is partially applicable. Protection of confidential sources is the goal of Exemption 7(D).⁸ This Circuit has recently stated that the term "source" encompasses entities such as "state, local and foreign law enforcement agencies as well as individuals such as private citizens and paid informants." Lesar v. Department of Justice, 636 F.2d 472 at 489 (D.C.Cir.1980) (emphasis added). In order for sources to be protected, the information they provide must be submitted under a promise of confidentiality.⁹ H.R. Conf.Rep.No.93 1380, 93d Cong., 2d Sess. 13 (1974).

In this case, Defendants have not met their burden of showing a promise of confidentiality as to all documents withheld pursuant to Exemption 7(D). While certain documents stated a request for confidential treatment on their face (e. g. Nos. 98, 99, 263, 264, 296, 308, 310, 495, 741, 838) and are subject to Exemption 7(D), this Court cannot infer a...