Holy Spirit Ass'n for Unification of World Christianity v. F. B. I.

• Decision Date: 03 August 1982
• Docket Number: No. 81-2349,81-2349
• Citation: 683 F.2d 562
• Parties: HOLY SPIRIT ASSOCIATION FOR the UNIFICATION OF WORLD CHRISTIANITY, Appellant, v. FEDERAL BUREAU OF INVESTIGATION et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 562

683 F.2d 562

221 U.S.App.D.C. 221

HOLY SPIRIT ASSOCIATION FOR the UNIFICATION OF WORLD CHRISTIANITY, Appellant, v. FEDERAL BUREAU OF INVESTIGATION et al.

No. 81-2349.

United States Court of Appeals District of Columbia Circuit.

Argued May 18, 1982.

Decided July 23, 1982.

As Amended Aug. 3, 1982.

Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 79-01339).

Dorothy Sellers, with whom Douglas Mishkin, Washington, D. C., was on the brief, for appellant.

Susan Sleater, Dept. of Justice, with whom Stanley S. Harris, U. S. Atty., and Leonard Schaitman, Dept. of Justice, Washington, D. C., were on the brief, for appellees. Kenneth M. Raisler and John Oliver Birch, Asst. U. S. Attys., Washington, D. C., entered appearances for appellees.

Before WRIGHT, MacKINNON and EDWARDS, Circuit Judges.

Opinion for the court PER CURIAM.

Concurring opinion filed by Circuit Judge MacKINNON.

PER CURIAM:

Exemption 7(C) of the Freedom of Information Act permits an agency to withhold "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) (1976). In this case the Federal Bureau of Investigation invoked Exemption 7(C) to support its deletion of names, addresses, and other identifying information from documents it released to the Holy Spirit Association (Unification Church) pursuant to the church's FOIA request. The church filed suit in the United States District Court for the District of Columbia to compel disclosure of the remaining material. In its affidavit the FBI stated that it had conducted an investigation to determine whether the Unification Church had violated two federal statutes: the kidnaping provision, 18 U.S.C. § 1201 (1976), and the Foreign Agents Registration Act, 22 U.S.C. § 611 et seq. (1976). Joint Appendix (JA) 23-24. The FBI affidavit also contended that release of the identifying information would constitute an unwarranted invasion of personal privacy. JA 33-36.

The District Court found that the government's Exemption 7(C) claim was justified and granted summary judgment in the government's favor. JA 432-440. Subsequently the FBI located and processed an additional set of documents, from which it deleted identifying material in reliance on Exemption 7(C). After reviewing affidavits from the FBI, the District Court granted summary judgment for the government with respect to these deletions. JA 602-608, 616.

We affirm the rulings of the District Court, generally for the reasons stated in its opinions. The court found that the documents in question were "investigatory records" within the meaning of Exemption 7; this finding of fact was not clearly erroneous. We also endorse the District Court's discussion of the information that the FBI should generally include in affidavits claiming the protection of Exemption 7:

(T)he agent's affidavit does not spell out specifically when the investigations of the Unification Church began, how long they lasted and whether any persons were later indicted. This information may be necessary in some cases and should be routinely offered to the Court. * * *

JA 437. In this case, as the District Court explained, the imprecision of the FBI's affidavit, "(i)f indeed it is a procedural defect, * * * is not fatal * * *." Id. However, inclusion of more detailed information about the relevant investigations would facilitate an accurate determination of whether the documents in question are "investigatory records."

The judgments of the District Court are

Affirmed.

MacKINNON, Circuit Judge (concurring).

The opinion by the court holds that the documents sought by appellants were exempt from disclosure under Exemption 7(C) of the Freedom of Information Act, 5 U.S.C. § 552(b)(7)(C) (1976), and I concur in that opinion. It affirms the District Court on one reason given for its decision. I write additionally to point out that I believe the other reason given by the District Court for barring disclosure-Exemption 6-is also valid.

Communications of the sort in issue in this case, whether made directly to the agency or made to the citizen's representative in Congress and subsequently forwarded to the law enforcement agency-as were some of the letters here involved ¹-will frequently contain information of an intensely personal sort relating to that person's social, personal, financial, or, as in this case, family situation. In such cases, because the invasion of personal privacy resulting from disclosure would have serious consequences both for the individuals involved and for the general public, I believe that the information is exempted from disclosure both by Exemption 7(C) ² where it is contained in a law enforcement record compiled for an investigatory purpose, and by Exemption 6 ³ where it is found in other agency records.

I

The personal privacy protected by Exemptions 6 and 7(C) is implicated anytime revelation of the contents of information would "subject the person to whom they pertain to embarrassment, harassment, disgrace, loss of employment or friends." Brown v. FBI, 658 F.2d 71, 75 (2d Cir. 1981). See Department of the Air Force v. Rose, 425 U.S. 352, 357, 96 S.Ct. 1592, 1597, 48 L.Ed.2d 11 (1976). Particularly significant privacy interests are involved where, as here, the information has come into the government's possession in the initiation or course of an investigation into possible violations of the law or generally because of its status as a law enforcement agency.

First, the action of those communicating with an agency like the FBI, whether directly or through their elected representatives, necessarily places them at risk of harassment by those who are the subjects of their communication. The law took account of this risk long before the advent of the Freedom of Information Act, in recognizing the so-called "informer's privilege" against disclosure of the identity of a confidential informant. See Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). As with the FOIA exemptions, see Chrysler Corporation v. Brown, 441 U.S. 281, 99 S.Ct. 1705, 60 L.Ed.2d 208 (1979) (exemptions do not give private right of action to compel government to withhold information), the privilege against revelation belongs to the government, not the informer. Roviaro v. United States, 353 U.S. at 59, 77 S.Ct. at 627. Both, however, are directed at the protection of the private citizen's expectation that when he provides (usually voluntarily) information to the government he will not be damaged in his person or reputation by disclosure of the source. The public has a concomitant interest in avoiding such damage as would deter others from similar cooperation. Maroscia v. Levi, 569 F.2d 1000, 1002 (7th Cir. 1977). Most law enforcement agencies place great reliance upon voluntary citizen assistance in solving crimes and apprehending law violators. "Those cooperating with law enforcement should not now pay the price of full disclosure of personal detail." Lesar v. Department of Justice, 636 F.2d 472, 488 (D.C.Cir.1980) (quoting district court opinion, 455 F.Supp. 921, 925 (D.D.C.1978)). ⁴

Where a person's fear of reprisals from the subject of his communication is reasonable, on the basis either of demonstrated fact or of the inferences to be drawn from reasonable claims he makes, privacy interests support the application of both Exemption 6 and Exemption 7(C). A good example is furnished by Church of Scientology v. Department of State, 493 F.Supp. 418 (D.D.C.1980). There, plaintiff sought disclosure from the FBI and Department of State of the identities of persons who "provided information and participated in the investigation of the Church of Scientology." Id. at 421. The court, invoking both exemptions, refused to order such disclosure, taking particular note of the fact that

(p)laintiff has a practice of harassing its "suppressors." Some documents ... describe bizarre situations and harsh punishments involving disenchanted Scientologists.

Id. The letters here similarly describe "bizarre" and possibly illegal activities in which the writers suspect the Holy Spirit Association of being engaged. Even if such suspicions ultimately prove to be unfounded, it cannot be doubted that at the time they voiced them, those communicating with the authorities could reasonably have feared reprisals against themselves or their family members. ⁵

In addition to the fear of harassment, the privacy interests of one who calls possible violations of law to the attention of enforcement authorities also comprehend the effect of the "stigma" sometimes attached to such cooperation with the authorities. As we recently observed in Bast v. Department of Justice, 665 F.2d 1251, 1254 (D.C.Cir.1981), "Exemption 7(C) recognizes the stigma potentially associated with law enforcement investigations," and thus counsels great deference to the privacy interests of those who communicate with law enforcement agencies in the course of an investigation.

II

The foregoing considerations apply with equal vigor to those communications brought to the attention of law enforcement agencies by a member of Congress acting on behalf of his constituent. A number of documents sought in the present case were letters sent by citizens to their representatives calling attention either to suspected violations of federal law of varying generality ⁶ or to specific incidents involving the writer's own family members. ⁷ The latter documents in particular reveal intimate personal details concerning the behavior and personal relationships of the writers and their subjects. For example, Document 38 includes a letter from a constituent to Senator Hart stating that the correspondent, "terminally ill with cancer," has "a daughter, who 4 days after being released from a psychiatric hospital was taken by this cult and...