Congressional News Syndicate v. US Dept. of Justice

• Decision Date: 13 October 1977
• Docket Number: Civ. A. No. 77-0882.
• Citation: 438 F. Supp. 538
• Parties: CONGRESSIONAL NEWS SYNDICATE, Plaintiff, v. UNITED STATES DEPARTMENT OF JUSTICE et al., Defendants.
• Court: U.S. District Court — District of Columbia

438 F. Supp. 538

CONGRESSIONAL NEWS SYNDICATE, Plaintiff, v. UNITED STATES DEPARTMENT OF JUSTICE et al., Defendants.

Civ. A. No. 77-0882.

United States District Court, District of Columbia, Civil Division.

October 13, 1977.

Leonard B. Terr, Washington, D. C., for plaintiff.

Barbara L. Ward, Dept. of Justice, Washington, D. C., for defendants.

MEMORANDUM OPINION

JOHN H. PRATT, District Judge.

This is an action under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 (Supp. V 1975), to compel disclosure of certain materials alleged to have been obtained or compiled by the Watergate Special Prosecution Force ("WSPF") in the course of one of its numerous investigations. The parties' cross-motions for summary judgment are directed to the issue whether the materials in question are within the purview of Exemption 7(C) of FOIA, which provides that FOIA disclosure requirements do not apply to investigatory records compiled for law enforcement purposes if production of the records would constitute an unwarranted invasion of personal privacy. 5 U.S.C. § 552(b)(7)(C).

To prevail on its motion for summary judgment, a party must demonstrate that the absence of any genuine issue of material fact entitles it to judgment as a matter of law. Fed.R.Civ.P. 56(c); Bloomgarden v. Coyer, 156 U.S.App.D.C. 109, 116, 479 F.2d 201, 208 (1973). Issues of fact are to be construed in the light most favorable to the other party. Semaan v. Mumford, 118 U.S. App.D.C. 282, 283 n. 2, 335 F.2d 704, 705 n. 2 (1964).

A. BACKGROUND.

The Watergate Special Prosecution Force was created pursuant to the Attorney General's statutory power to appoint officers to conduct special investigations. 28 U.S.C. §§ 515, 533 (1970). The WSPF functioned as a unit within the Department of Justice, its duties and responsibilities having been "carved out of the area of responsibility previously assigned to the Assistant Attorney General in charge of the Criminal Division." United States v. Andreas, 374 F.Supp. 402, 412 (D.Minn.1974); 28 C.F.R. § 0.1, 0.37-.38 (1976); see also id., Appendix to Subpart G-1 (defining special prosecutor's duties and responsibilities). Before its termination June 20, 1977, the WSPF conducted numerous investigations, including one of a secret program, allegedly sponsored by the White House, for raising and disbursing funds to certain Republican candidates in the 1970 Congressional elections. Affidavit of Charles F. C. Ruff, former Watergate Special Prosecutor, at 3 (July 7, 1977) hereinafter "Ruff Affidavit"; id., Exh. A (comprising portions of Watergate Special Prosecution Force Report) hereinafter "WSPF Report". Nicknamed the "Townhouse Operation" because of its headquarters in a Washington, D.C. townhouse, the operation ultimately raised and disbursed about three million dollars, forwarded in the form of checks from contributors, and distributed to particular campaign committees according to directions from members of the White House staff. WSPF Report, at 79. The details of the operation came to light when WSPF investigators interviewed Jack Gleason, a former White House aide who both arranged to receive contributors' checks and forwarded them to campaigns. Id. Gleason supplied the WSPF with records revealing the operation in full detail. Id. The WSPF concluded that the Townhouse Operation constituted a political committee operating in violation of those provisions of the Federal Corrupt Practices Act requiring such committees to file financial reports and elect officers. Id.; Ruff Affidavit, at 3; see Federal Corrupt Practices Act, c. 368, tit. III, §§ 302(c), 303-04, 43 Stat. 1070-73 (1925), repealed, Pub.L. No. 92-225, tit. IV, § 405, 86 Stat. 20 (1972) (current version at 2 U.S.C.A. §§ 431(c), 432, 434 (Cum.Supp. 1977)). Gleason, Harry Dent, Gleason's White House contact, and Herbert Kalmbach, a fundraiser for the operation, all pleaded guilty to violations of the Federal Corrupt Practices Act. WSPF Report, at 79; Ruff Affidavit, at 3. WSPF prosecutors considered the possible criminal liability of others involved in the Townhouse Operation, including contributors and recipients of the funds in question, but none was prosecuted. Id.

In an April 14, 1977 letter to Charles F. C. Ruff, Watergate Special Prosecutor at that time, Ken Cummins of the Congressional News Syndicate submitted a FOIA request for WSPF records relating to the Townhouse Operation. See Plaintiff's Cross-Motion for Summary Judgment, Exh. 1. The Congressional News Syndicate (CNS) "is an independent news-gathering organization incorporated in the District of Columbia and composed of a number of free-lance journalists and writers." Affidavit of Lewis Perdue, CNS Board Member, at 1 (July 25, 1977). The request in general was directed to "information concerning the roles of Robert J. Conkling and Jack Gleason in the 1970 `Townhouse' illegal fundraising operation." Letter from Ken Cummins to Charles F. C. Ruff. The letter identifies Conkling as one of those involved in the operation whom the WSPF investigated but never prosecuted. The specific material requested falls into two categories: first, "the records outlining the contributions made to the secret project and the expenditures of the Townhouse operation," and second, material relating to the alleged investigation of Conkling as a possible participant in the Townhouse Operation for purposes of potential criminal liability. Id.¹

Special Prosecutor Ruff responded to the CNS request by letter dated April 28, 1977, denying both facets of plaintiff's request. The denial as to records of contributions and expenditures was premised on three grounds:

(1) That the identities of contributors and recipients are exempt from disclosure under FOIA Exemption 7(C) because production would constitute an unwarranted invasion of privacy and subject the individuals concerned to "public ridicule or embarrassment" (2) That, during the plea-bargaining process, the Government made assurances that the identities of recipients and contributors would be released only in the context of a formal judicial proceeding initiated by the WSPF; and

(3) That disclosure of certain White House documents relating to the identity of contributors and recipients would violate the terms of an order of this Court.

In its pleadings, the Government has pressed only the first of these grounds as a basis for nondisclosure.

As to the request for material covering the WSPF probe into Conkling's involvement, the letter declined to confirm or deny the existence of such material, citing the WSPF policy of requiring a notarized authorization from the subject of the alleged investigation before responding to FOIA requests. Letter from Charles F. C. Ruff, Watergate Special Prosecutor, to Ken Cummins, CNS, at 2 (April 28, 1977). Such authorization does not appear from the record.

The letter closed by informing CNS of its right to challenge the denial of access by an action to compel production of the requested material, 5 U.S.C. § 552(a)(4)(B), there being no right of administrative appeal from the Special Prosecutor's denial of a FOIA request.

There appear no procedural impediments, in the way of failure to exhaust administrative remedies, or lack of standing or ripeness, to consideration of this matter on its merits.

B. FOIA EXEMPTION 7(C).

The sole question presented by the cross-motions is whether the FOIA mandates production of the materials requested, or any segregable portion thereof. The Government's argument for withholding the material rests upon one exemption only, i. e., that which governs "investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would . . . constitute an unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(7)(C) (Supp. V 1975). The operative phrase, "unwarranted invasion of privacy," entered the Act by way of 1974 amendments intended to counteract judicial expansion of the investigatory files exemption. Freedom of Information Act and Amendments of 1974, Pub.L. No. 93-502, § 2(b), 88 Stat. 1563; see 120 Cong.Rec. S9336 (remarks of Sen. Hart). The language of FOIA Exemption 7(C) parallels that of Exemption 6, covering "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(6) (1970). Originally, Exemption 7(C) repeated the "clearly unwarranted" standard of Exemption 6, but the conferees on the 1974 amendments agreed to delete the word "clearly" in response to a Presidential request. See Letter from President Gerald R. Ford to Sen. Edward M. Kennedy (Aug. 20, 1974), reprinted in Freedom of Information Act and Amendments of 1974 (P.L. 93-502) Source Book: Legislative History, Texts, and Other Documents 368-70; Letter from Sen. Edward M. Kennedy, Chairman, Senate Conferees, and Rep. William S. Moorhead, Chairman, House Conferees, to President Gerald R. Ford (Sept. 23, 1974), reprinted in Source Book, supra, at 370-72. The difference in wording between the two exemptions was advised and not accidental; its effect is to make Exemption 7(C) a somewhat broader shield against disclosure than Exemption 6. See Department of the Air Force v. Rose, 425 U.S. 352, 378-79, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1975). The difference in breadth, in turn, is attributable to the inherent distinctions between investigatory files and personnel, medical and similar files: that an individual's name appears in files of the latter kind, without more, will probably not engender comment and speculation, while, as the Government argues here, an individual whose name surfaces in connection with an investigation may, without more, become the subject of rumor and innuendo. Defendants' Memorandum in Support of their Motion for Summary Judgment, at 6-7 (hereinafter defendants' Memorandum).

Despite this difference in breadth, the two exemptions are to be applied according to the same...