Dow Jones & Co., Inc. v. Department of Justice

• Decision Date: 08 November 1990
• Docket Number: No. 89-5353,89-5353
• Citation: 286 U.S.App.D.C. 349,917 F.2d 571
• Parties: DOW JONES & COMPANY, INC., Appellant, v. DEPARTMENT OF JUSTICE.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 571

917 F.2d 571

286 U.S.App.D.C. 349

DOW JONES & COMPANY, INC., Appellant, v. DEPARTMENT OF JUSTICE.

No. 89-5353.

United States Court of Appeals, District of Columbia Circuit.

Argued April 30, 1990.

Decided July 24, 1990.

Suggestion for Rehearing En Banc Denied Oct. 5, 1990.

As Amended Nov. 8, 1990.

Appeal from the United States District Court for the District of Columbia.

John F. Manning, of the bar of the Supreme Court of the Com. of Pa., pro hac vice, by special leave of the Court, with whom Larry L. Simms, Washington, D.C., was on the brief, for appellant. Paul Blankenstein, Washington, D.C., also entered an appearance, for appellant.

Nathan Dodell, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., John D. Bates and R. Craig Lawrence, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.

Before EDWARDS, SILBERMAN and WILLIAMS, Circuit Judges.

Opinion for the Court filed by Circuit Judge SILBERMAN.

Concurring Opinion filed by Circuit Judge HARRY T. EDWARDS.

SILBERMAN, Circuit Judge:

Dow Jones & Company, Inc. appeals from the judgment of the district court denying it access under the Freedom of Information Act ("FOIA"), 5 U.S.C. Sec. 552, to redacted portions of a letter sent by the Justice Department to the House Committee on Standards of Official Conduct (the "House Ethics Committee"). The letter summarized the results of a Justice Department probe into possible criminal wrongdoing by Fernand J. St Germain, who at the time was a member of Congress and Chairman of the House Committee on Banking, Finance, and Urban Affairs. The Department had declined to pursue an indictment, but it decided to inform the House Ethics Committee about the information it had collected. Because we conclude that the redacted information was obtained from confidential sources in the course of a criminal investigation, we affirm the district court's judgment that the entire redacted portion of the letter is exempt from disclosure under FOIA.

I.

On May 31, 1988, John C. Keeney, the Acting Assistant Attorney General of the Criminal Division of the Justice Department, sent a letter to Representative Julian C. Dixon, Chairman of the House Ethics Committee. The letter revealed that the Justice Department had been conducting a grand jury investigation into whether Representative St Germain's receipt of free meals and entertainment was in violation of any criminal laws. The Department explained that "because certain technical requirements of the relevant statutes make it uncertain that [the Department] would be able to meet the standard of proof of guilt beyond a reasonable doubt," it had declined to prosecute. But the Department also stated in the letter that the investigation had uncovered "substantial evidence of serious and sustained misconduct by Representative St Germain," and the Department explained that it was therefore referring the matter to the Ethics Committee to determine whether any House standards of conduct had been violated. Crucially for this case, the letter outlined some of the information the Department had obtained in interviews conducted in the course of the investigation.

On July 28, 1988, Dow Jones requested a copy of the letter under FOIA. Approximately one month later, the Justice Department, relying on the privacy-based exemptions under the statute, declined to release the letter. In November, Dow Jones filed suit in the district court to compel disclosure. ¹

The district court granted the Department's motion for summary judgment, sustaining the Department's denial of the FOIA request. See Dow Jones & Co., Inc. v. Department of Justice, 724 F.Supp. 985 (D.D.C.1989). The court held that the Department could properly withhold the redacted portion under Exemption 5 of FOIA, 5 U.S.C. Sec. 552(b)(5), which excludes from disclosure certain "inter-agency" and "intra-agency" documents that reflect an agency's deliberative process. See id. at 989. That interpretation of Exemption 5 would bar completely disclosure of the redacted portion of the letter; nevertheless, as a prudential matter, the court went on to consider the applicability of other FOIA exemptions asserted by the government.

The district court decided that Exemption 7(C), 5 U.S.C. Sec. 552(b)(7)(C), which excludes documents the production of which "could reasonably be expected to constitute an unwarranted invasion of personal privacy," permitted the withholding of the names of the witnesses but not the substance of the interviews. See 724 F.Supp. at 991. And the court concluded that Exemption 7(D), 5 U.S.C. Sec. 552(b)(7)(D), which protects information obtained from confidential sources in the course of a criminal investigation, would shield only the identities of and information provided by the Department's "primary witness and the primary witness' associate." 724 F.Supp. at 992. The Department, according to the court, did not establish that the other witnesses were "confidential sources," and therefore the redacted parts of the letter discussing information provided by these nonconfidential sources would have had to have been released if the Department had relied only on Exemption 7(D). See id.

Dow Jones challenges all of the district court's determinations. The Department, however, has chosen to defend the court's judgment only on Exemptions 5 and 7(D) grounds--it has dropped the Exemption 7(C) claim.

II.

Under FOIA, "virtually every document generated by an agency is available to the public in one form or another, unless it falls within one of the Act's nine exemptions." NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 136, 95 S.Ct. 1504, 1509, 44 L.Ed.2d 29 (1975). Exemption 5 of the statute permits an agency to refuse to disclose to the public "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." 5 U.S.C. Sec. 552(b)(5). Since litigants can obtain virtually any unprivileged document, "[c]ourts have construed this exemption to encompass the protections traditionally afforded certain documents pursuant to evidentiary privileges in the civil discovery context, including materials which would be protected under the attorney-client privilege, the attorney work-product privilege, or the executive deliberative process privilege." Formaldehyde Institute v. Department of Health and Human Servs., 889 F.2d 1118, 1121 (D.C.Cir.1989) (internal quotation marks and citations omitted); see also United States v. Weber Aircraft Corp., 465 U.S. 792, 799, 104 S.Ct. 1488, 1492, 79 L.Ed.2d 814 (1984) (stating that "Exemption 5 simply incorporates civil discovery privileges").

The Justice Department here relies on the common law "deliberative process" or "executive" privilege as one of the privileges incorporated into Exemption 5. This ancient privilege is predicated on the recognition "that the quality of administrative decision-making would be seriously undermined if agencies were forced to operate in a fishbowl." Wolfe v. Department of Health and Human Servs., 839 F.2d 768, 773 (D.C.Cir.1988) (en banc ). We have said that "the purpose of Exemption 5 is to encourage the 'frank discussion of legal and policy issues.' " Id. (quoting S.REP. NO. 813, 89th Cong., 1st Sess. 9 (1965)). But--and this is the government's problem--in order to qualify for the deliberative process privilege under Exemption 5, the government must demonstrate that the document is either inter-agency or intra-agency in nature, and also that it is both predecisional and part of the agency's deliberative process. See id. at 774; see also Formaldehyde Institute, 889 F.2d at 1121.

The Department argues that the district court correctly decided that Exemption 5 covers materials sent from an Executive Branch agency to Congress. In other words, the government reads the word "inter-agency" to include inter-branch communications. The district court conceded that the government's interpretation does not comport with a "strict reading" of the language, but it thought a strict reading would frustrate the purpose of the statute. See 724 F.Supp. at 988. That is so, argues the government, because Congress exempted itself from FOIA, thereby protecting all of its internal deliberations. Therefore, it could not have intended that Executive Branch communications to Congress for the purpose of Congress' own internal deliberations be disclosable under FOIA.

It is an appealing argument. It may well be true that if Congress had thought about this question, the Exemption would have been drafted more broadly to include Executive Branch communications to Congress, such as the letter sought here. But Congress did not, and the words simply will not stretch to cover this situation, because Congress is simply not an agency.

Section 552(f) defines "agency" as follows:

For purposes of this section, the term "agency" as defined in section 551(1) of this title includes any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency.

5 U.S.C. Sec. 552(f). Section 551(1), in turn, defines "agency" for purposes of FOIA as "each authority of the Government of the United States, whether or not it is within or subject to review by another agency, but does not include ... the Congress ... [or] the courts of the United States." 5 U.S.C. Sec. 551(1) (emphasis added). Accordingly, we have previously recognized that members of Congress are not within the definition of agency under FOIA. See Formaldehyde Institute, 889 F.2d at 1122. The argument from anomaly that the government makes and the district court accepted is just not adequate to sidestep this statutory language. See Weber Aircraft, 465 U.S. at 802, 104 S.Ct. at 1494 (noting that "compelling evidence of congressional intent ... would be necessary...