Cox v. U.S. Dept. of Justice, 77-1392

• Decision Date: 21 June 1978
• Docket Number: No. 77-1392,77-1392
• Citation: 576 F.2d 1302
• Parties: Eddie David COX, Appellant, v. UNITED STATES DEPARTMENT OF JUSTICE, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1302

576 F.2d 1302

Eddie David COX, Appellant, v. UNITED STATES DEPARTMENT OF JUSTICE, Appellee.

No. 77-1392.

United States Court of Appeals,

Eighth Circuit.

Submitted Dec. 13, 1977.

Decided May 25, 1978.

Rehearing Denied June 21, 1978.

Bruce C. Houdek, Kansas City, Mo., for appellant.

Michael Kimmel, Atty., Dept. of Justice, Appellate Section, Civil Division, Washington, D.C., argued, Barbara Allen Babcock, Asst. Atty. Gen., Washington, D.C., Ronald S. Reed, Jr., U.S. Atty., Kansas City, Mo., and Leonard Schaitman, and Michael Kimmell, Washington, D.C., on brief, for appellee.

Before LAY, BRIGHT, and HENLEY, Circuit Judges.

BRIGHT, Circuit Judge.

Eddie David Cox brought this action against the Department of Justice and the Drug Enforcement Administration (DEA), an agency within the Department of Justice, to obtain disclosure of information he had requested under the Freedom of Information Act, 5 U.S.C. § 552 (1976). The district court ordered partial disclosure but denied further relief. Cox appeals. We affirm in part and remand for further proceedings.

I. The Freedom of Information Act.

Congress enacted the Freedom of Information Act (FOIA) for the express purpose of increasing disclosure of government records. According to the Senate Report accompanying the original version of FOIA passed in 1966, ¹ the statute reflects "a general philosophy of full agency disclosure" and protects "the public's right to know the operations of its Government." ² Congress amended the statute in 1974 ³ to strengthen the disclosure requirement. The House Report on the amendments noted that "(t)his bill seeks to reach the goal of more efficient, prompt, and full disclosure of information." ⁴

Section 552(a) of FOIA directs government agencies to disclose certain types of records and describes the manner of disclosure required. Subsection (a)(1) lists records that must be published in the Federal Register. Subsection (a) (2) lists records that must be made available for public inspection and copying. Subsection (a)(3) contains a catch-all provision requiring disclosure of records not covered by (a)(1) or (a)(2). These provisions are to be interpreted broadly to achieve the goal of full disclosure. See Department of Air Force v. Rose, 425 U.S. 352, 360-61, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976); NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 136, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975).

Congress realized, however, that some confidentiality is necessary for the government to function. Section 552(b) therefore lists nine categories of records that are exempt from FOIA's disclosure requirements. The exemptions relevant to the present case are as follows:

(b) This section does not apply to matters that are

(2) related solely to the internal personnel rules and practices of an agency;

(5) inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency;

(7) investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would (A) interfere with enforcement proceedings, (B) deprive a person of a right to a fair trial or an impartial adjudication, (C) constitute an unwarranted invasion of personal privacy, (D) disclose the identity of a confidential source and, in the case of a record compiled by a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence investigation, confidential information furnished only by the confidential source, (E) disclose investigative techniques and procedures, or (F) endanger the life or physical safety of law enforcement personnel(.)

The exemptions provided by subsection (b) "must be narrowly construed." Department of Air Force v. Rose, supra, 425 U.S. at 361, 96 S.Ct. 1592.

II. The Cox Requests.

Cox, a convict presently confined at the federal penitentiary at Marion, Illinois, submitted two FOIA requests to the Justice Department in 1975. ⁵ In the first, he requested disclosure of his DEA "violator classification identifier"; in the second request, he sought a copy of the DEA Agents Manual. The Government denied these requests on grounds that the information was exempt from disclosure under FOIA. ⁶ Cox then brought this action, in which he asked the district court to enjoin the Government from withholding the requested records and to order production of the records.

At the district court's request, the Government submitted the records in question for in camera inspection. The Government also submitted affidavits by Frederick A. Rody, Jr., acting deputy administrator of the DEA, and Thomas M. Burton, a DEA special agent assigned to DEA's Freedom of Information Division, setting forth the reasons for the denial. After viewing the in camera materials and considering the Government's motion for summary judgment, the district court reached the following conclusion:

A thorough and painstaking study of the materials produced compels the conclusion that the violator classification number is exempt from disclosure because its disclosure may significantly impair law enforcement. And almost all of the Drug Enforcement Administration Agents' Manual is exempt from disclosure for the same reason and for the additional reason that some of the exempt material relates solely to the internal personnal rules and practices of the Drug Enforcement Administration in which there can be no public interest in disclosure.

The district court ordered disclosure of a subchapter entitled "Executive Clemency" but denied Cox' request for the other information. ⁷ Cox appealed.

III. The DEA Agents Manual.

A.

Before deciding whether the exemptions in FOIA apply, we must first determine whether the FOIA disclosure requirements apply to this manual. If the material does not fall within one of the three categories contained in section 552(a), disclosure is not required.

Subsection (a)(1) lists the records that must be published in the Federal Register. ⁸ The Agents Manual does not fall within this category.

Subsection (a)(2) lists the records that must be made available to the public for inspection and copying. ⁹ These include the following:

(C) administrative staff manuals and instructions to staff that affect a member of the public * * *.

The DEA Agents Manual is a "staff manual" and therefore is covered by subsection (a)(2)(C). Two circuit courts that have considered FOIA's application to somewhat similar materials agreed with this conclusion. See Stokes v. Brennan, 476 F.2d 699 (5th Cir. 1973) (material used to train OSHA compliance officers); Hawkes v. Internal Revenue Service, 467 F.2d 787 (6th Cir. 1972) (Internal Revenue Manual).

Subsection (a)(3) contains a catch-all provision that requires disclosure of records other than those covered by (a)(1) and (2). ¹⁰ Subsection (a)(3) creates a problem in interpreting FOIA: If (a)(2)(C) applies to the manual but does not require disclosure, does (a)(3) nevertheless require disclosure? We think not. We agree with the conclusion of Professor Davis, who has analyzed this problem and believes that the specific legislative intent behind (a)(2) controls the more general intent behind (a)(3):

Even if none of the nine exemptions applies, some "records" may be free from required disclosure under (a)(3) because of the legislative intent behind (a) (2). (K. Davis, Administrative Law Treatise 56 (Supp.1976).)

Thus, we focus our inquiry on the question whether subsection (a)(2)(C) requires disclosure.

The original version of FOIA introduced into the Senate did not contain the word "administrative" before the word "manuals" in subsection (a)(2)(C). ¹¹ The Committee on the Judiciary added that term for the express purpose of distinguishing "administrative matters" from "law enforcement matters." It explained the purpose of the amendment as follows:

Amendment No. 1: The limitation of the staff manuals and instructions affecting the public which must be made available to the public to those which pertain to administrative matters rather than to law enforcement matters protects the traditional confidential nature of instructions to Government personnel prosecuting violations of law in court, while permitting a public examination of the basis for administrative action. (S.Rep. No. 813, supra note 2, at 2 (emphasis added).)

The distinction between law enforcement matters and administrative matters is not easily drawn. In Hawkes v. Internal Revenue Service, 467 F.2d 787 (6th Cir. 1972), the Sixth Circuit wrestled with this problem in the difficult context of an agency whose administrative actions frequently lead to law enforcement proceedings. Hawkes, a defendant in a criminal tax fraud case, requested copies of "portions of the Internal Revenue Manual relating to the examination of returns, interrogation of taxpayers by agents of the Service and other matters which Hawkes felt would be useful in preparing a defense." Id. at 789. The court gave the following analysis of (a)(2)(C):

(I)t would seem logical to assume that the intent of the limit on (a)(2)(C) was to bar disclosure of information which, if known to the public, would significantly impede the enforcement process.

Law enforcement is the process by which a society secures compliance with its duly adopted rules. Enforcement is adversely affected only when information is made available which allows persons simultaneously to violate the law and to avoid detection. Information which merely enables an individual to conform his actions to an agency's understanding of the law applied by that agency does not impede law enforcement and is not excluded from compulsory disclosure under (a) (2)(C).

The exception for law enforcement materials contained in (a)(2)(C) is, as suggested above, a very narrow one and is to be applied only where the sole effect of disclosure would be to enable law violators to escape detection....