Church of Scientology of California v. U.S. Dept. of Army

• Decision Date: 07 November 1979
• Docket Number: Nos. 78-1168,78-1169,s. 78-1168
• Citation: 611 F.2d 738
• Parties: CHURCH OF SCIENTOLOGY OF CALIFORNIA, a nonprofit corporation, Plaintiff- Appellant, v. UNITED STATES DEPARTMENT OF the ARMY: Howard H. Callaway, Secretary of the Army; U. S. Intelligence Agency; Major Aaron, Assistant Chief of Staff for Army Intelligence, Defendants-Appellees. CHURCH OF SCIENTOLOGY OF CALIFORNIA, a nonprofit corporation, Plaintiff- Appellant, v. UNITED STATES DEPARTMENT OF DEFENSE; Office of the Secretary of Defense; James R. Schlesinger, Secretary of the Department of Defense; United States Department of the Navy; J. Wm. Middendorf II, Secretary of the Navy; Naval Intelligence Command: Rear Admiral E. F. Rectanus, Director of Naval Intelligence, Defendants- Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 738

611 F.2d 738

CHURCH OF SCIENTOLOGY OF CALIFORNIA, a nonprofit

corporation, Plaintiff- Appellant, v. UNITED STATES DEPARTMENT OF the ARMY: Howard H. Callaway,

Secretary of the Army; U. S. Intelligence Agency;

Major Aaron, Assistant Chief of Staff

for Army Intelligence,

Defendants-Appellees.

CHURCH OF SCIENTOLOGY OF CALIFORNIA, a nonprofit

corporation, Plaintiff- Appellant, v. UNITED STATES DEPARTMENT OF DEFENSE; Office of the Secretary

of Defense; James R. Schlesinger, Secretary of the

Department of Defense; United States Department of the Navy;

J. Wm. Middendorf II, Secretary of the Navy; Naval

Intelligence Command: Rear Admiral E. F. Rectanus, Director

of Naval Intelligence, Defendants- Appellees.

Nos. 78-1168, 78-1169.

United States Court of Appeals Ninth Circuit.

Nov. 7, 1979.

As Amended on Denial of Rehearing April 7, 1980.

As Modified.

Suggestion for Rehearing En Banc in No. 78-1169 Rejected

April 7, 1980.

Barry Leigh Weissman, Beverly Hills, Cal., for plaintiff-appellant.

Barbara L. Herwig, Dept. of Justice, Washington, D. C., for defendants-appellees.

On Appeal from the United States District Court for the Central District of California.

Before TUTTLE, ^* TRASK, and ANDERSON, Circuit Judges.

J. BLAINE ANDERSON, Circuit Judge:

Plaintiff Church of Scientology of California ("the Church") appeals in these cases, consolidated on appeal for oral argument and disposition, from judgments of the district court pertaining to certain documents requested of the defendants under the Freedom of Information Act, 5 U.S.C. § 552. The judgments upheld the actions of the defendants in releasing certain documents with details excised, and their refusal to release three documents in any form. We affirm in part and reverse in part.

I. JURISDICTION

The district court took jurisdiction pursuant to 5 U.S.C. § 552(a)(4)(B). Our jurisdiction on appeal is based upon our authority to review the final order of a district court, 28 U.S.C. § 1291.

II. THE PROCEEDINGS BELOW

The Church filed requests pursuant to the Freedom of Information Act, 5 U.S.C. § 552, for any documents pertaining to the Church or its founder, L. Ron Hubbard, which were in the possession of defendant Department of Defense ("Defense"), and defendant Department of the Army ("Army"). Both defendants complied with the requests, releasing a number of documents in their entirety, releasing only edited versions of others, and refusing to release any portion of certain documents.

Dissatisfied from some of the defendants' responses, the Church resorted to legal action to compel disclosure. On September 9, 1975, the Church filed a complaint seeking an injunction against withholding of records in Church of Scientology v. United States Department of the Army, No. CV-75-3056-F. On December 4, 1975, the Church filed a similar complaint in Church of Scientology v. United States Department of Defense, No. CV-75-4072-F. On June 2, 1977, the court below granted summary judgment for the defendants in each case.

Numerous documents were involved. The Church appeals in each case the court's rulings on specific documents. In Department of Defense, the Church's appeal involves three documents, two of which were released with portions excised, and the other withheld entirely. In Department of the Army, the Church appeals on six documents, four of which were released with portions excised, and the other two withheld entirely. For all but two of the documents, the court below found that release of the excised information was protected by one of several specific exemptions to disclosure under the Freedom of Information Act. The court withheld two documents in Department of the Army because each was the subject of pending litigation in another federal district. Details on specific documents will be developed in the course of this opinion.

III. THE FREEDOM OF INFORMATION ACT

The Freedom of Information Act, 5 U.S.C. § 552, mandates a policy of broad disclosure of government documents when production is properly requested. 552(a)(3) reads:

". . . each agency, upon any request for records which (A) reasonably describes such records and (B) is made in accordance with published rules stating the time, place, fees (if any), and procedures to be followed, shall make the records promptly available to any person."

When a request is made, an agency may withhold a document, or portions thereof, only if the information contained in the document falls within one of nine statutory exemptions to the disclosure requirement contained in § 552(b). Three of the nine section (b) exemptions are relevant to this appeal. (b)(1) exempts from disclosure information specifically authorized by an Executive order to be kept secret "in the interest of national defense or foreign policy" and which is properly classified pursuant to such an order. (b)(6) authorizes the withholding of information which would constitute a "clearly unwarranted invasion of personal privacy" if found in "personnel and medical files and similar files." (b)(7) exempts from disclosure "investigatory records compiled for law enforcement purposes" if disclosure would have one of several specified adverse effects.

The nine exemptions to the Act are to be narrowly construed. See, e. g., Bristol-Meyers Company v. F. T. C., 138 U.S.App.D.C. 22, 424 F.2d 935 (D.C.Cir. 1970), Cert. denied, 400 U.S. 824, 91 S.Ct. 46, 27 L.Ed.2d 52 (1970).

IV. THE STANDARD OF REVIEW

An appellate court has essentially two tasks in reviewing judgments on Freedom of Information Act issues: (1) the court must determine whether the district judge had an adequate factual basis for his or her decision, and (2) if an adequate factual basis was established, the court must determine whether the decision below was clearly erroneous.

A. Factual Basis: Significance of the In Camera Inspection

The burden is placed upon the government agency to establish that a given document is exempt from disclosure. See, e. g., Environmental Protection Agency v. Mink, 410 U.S. 73, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973); Harvey's Wagon Wheel, Inc. v. N. L. R. B., 550 F.2d 1139, 1141, 1142 (9th Cir. 1976). In meeting its burden of proof, the government may not rely upon "conclusory and generalized allegations of exemptions . . . ." Vaughn v. Rosen, 157 U.S.App.D.C. 340, 346, 484 F.2d 820, 826 (D.C.Cir. 1973). On the other hand, the government need not specify its objections in such detail as to compromise the secrecy of the information. Id.

The government may rely upon detailed affidavits or oral testimony so long as the evidence offered enables the court to make an independent assessment of the government's claim of exemption. Harvey's Wagon Wheel, Inc. v. N. L. R. B., 550 F.2d 1139, 1141 (9th Cir. 1976); See also Environmental Protection Agency v. Mink, 410 U.S. 73, 93, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973). If the agency supplies a reasonably detailed affidavit describing the document and facts sufficient to establish an exemption, then the district court need look no further in determining whether an exemption applies.

If, however, the court finds the affidavits or testimony submitted too generalized to establish eligibility for an exemption, it may, in its discretion, proceed to examine the disputed documents In camera for a first-hand determination of their exempt status. 5 U.S.C. § 552(a)(4)(B). One of the major purposes of the 1974 amendments to the Freedom of Information Act, P.L. 93-502, 88 Stat. 1561 (1974), was to clarify the discretion of the trial court to conduct an In camera inspection of classified government documents. ¹ Though the burden remains at all times on the government to establish exempt status, In camera inspection may supplement an otherwise sketchy set of affidavits. By first-hand inspection, the court may determine whether the weakness of the affidavits is a result of poor draftsmanship or a flimsy exemption claim. Irons v. Bell, 596 F.2d 468, 471, n.6 (1st Cir. 1979). Cf. Mead Data Central, Inc. v. United States Department of the Air Force, 184 U.S.App.D.C. 350, 359, 566 F.2d 242, 251 (D.C.Cir. 1977).

We cannot stress strongly enough, however, that the district court's inspection prerogative is not a substitute for the government's burden of proof, and should not be resorted to lightly. In cases involving requests for hundreds of documents, no trial court can reasonably be expected to wade through a mass of exhibits In camera. We also underscore similar limitations upon In camera inspection at the appellate level.

The Church here has argued that the government failed in either case to present sufficiently detailed affidavits or depositions, and thereby failed to meet its burden of proof. While we agree that some of the affidavits presented were drafted in a somewhat conclusory fashion, we find that the trial court properly undertook an In camera inspection of the disputed documents, and therefore had an adequate factual basis for its decision. The small number of documents requested, and their relative brevity, made these cases appropriate instances for exercise of the district court's inspection prerogative. In viewing both the edited and unedited versions of the documents, the trial court had the opportunity to inspect specific portions which the government claimed to be exempt from disclosure. We stress again, however, that the burden of proof in FOIA cases remains squarely on the government, and that In camera inspection is a procedure which the trial court need invoke only where it finds inspection appropriate, in its discretion.

B. The "Clearly Erroneous" Standard

Once we are satisfied that the trial court had an adequate basis to decide, we are guided by the "clearly erroneous" standard in evaluating the substance of that decision. See Mead Data Central, Inc. v. United States Department of the Air Force, 184 U.S.App.D.C. 350, 359, 566 F.2d 242, 251, n. 13 (D.C.Cir. 1977).

V. THE ISSUE OF SEGREGABILITY

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