Niemeier v. Watergate Special Prosecution Force, 76-2296
| Decision Date | 09 November 1977 |
| Docket Number | No. 76-2296,76-2296 |
| Citation | 565 F.2d 967 |
| Parties | 3 Media L. Rep. 1321 Paul J. NIEMEIER, Plaintiff-Appellant, v. WATERGATE SPECIAL PROSECUTION FORCE, and Charles F. C. Ruff, Special Prosecutor, Watergate Special Prosecution Force, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Rodolphe J. A. deSeife, Glen Ellyn, Ill., for plaintiff-appellant.
Thomas G. Wilson, Atty., Appellate Section, Civ. Div., Dept. of Justice, Washington, D. C., Leonard Schaitman, Appellate Section, Dept. of Justice, Washington, D. C., Thomas P. Sullivan, U. S. Atty., Chicago, Ill., for defendants-appellees.
Before CASTLE, Senior Circuit Judge, SWYGERT and SPRECHER, Circuit Judges.
The primary issue presented in this appeal is whether an undisclosed portion of a memorandum to the Watergate Special Prosecutor from the Counsel to the Special Prosecutor is exempt from disclosure under the Freedom of Information Act (FOIA), 5 U.S.C. § 552.
Plaintiff requested from Watergate Special Prosecutor Charles F. C. Ruff a copy of the August 29, 1974, memorandum written by Philip Lacovara, then Counsel to the Special Prosecutor, and addressed to Leon Jaworski, then the Special Prosecutor. This request was denied initially on the ground that the Lacovara memorandum was governed by exemption five of the FOIA, 5 U.S.C. § 552(b)(5), which exempts from disclosure "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 . . . ." The plaintiff sought reconsideration of this denial of his request and, upon reexamination, Special Prosecutor Ruff maintained that the memorandum was not subject to disclosure with the exception of one legal citation. 1
The plaintiff then filed suit in the district court under the Freedom of Information Act seeking disclosure of the Lacovara memorandum. The district court concluded that the memorandum was exempt from disclosure under exemption five and therefore dismissed plaintiff's complaint for want of jurisdiction. Plaintiff appeals from that decision and our jurisdiction derives from 28 U.S.C. § 1291.
The Watergate Special Prosecution Force (WSPF) was organized as an independent investigatory and prosecutive agency 2 within the Department of Justice. The duties and responsibilities of the Watergate Special Prosecutor were set forth in a formal Department of Justice regulation 3 which provided that the Special Prosecutor was delegated by the Attorney General "full authority for investigating and prosecuting offenses against the United States" including "allegations involving the President." 4 Specifically, pursuant to this broad authority, the Special Prosecutor was to determine "whether or not to prosecute any individual . . . ." 5
Plaintiff is concerned with the decision not to seek the indictment of former President Richard M. Nixon. It is clear that the above quoted regulations gave the Special Prosecutor full authority to press for criminal liability concerning President Nixon. Leon Jaworski, upon his resignation as Special Prosecutor in October of 1974, informed then Attorney General Saxbe of the WSPF decision not to seek indictment of President Nixon in a letter accompanying his letter of resignation. Mr. Jaworski therein stated his reasons for not seeking an indictment of President Nixon after Mr. Nixon received a "full, free and absolute" pardon from President Ford on September 8, 1974. Mr. Jaworski based this decision on the memorandum written by Philip Lacovara, which Mr. Jaworski stated was on file in the office of the Special Prosecutor and from which he quoted Lacovara's conclusion to the effect that to seek indictment of President Nixon after the pardon would be futile. 6 Both the Jaworski letter and the same portion of the Lacovara memorandum were subsequently quoted in the final report of the WSPF of October, 1975, in the section entitled, "Actions Related To President Nixon's Possible Criminal Liability," 7 which explained the WSPF reasons for not seeking the indictment of President Nixon.
We agree with the district court that the Lacovara memorandum must initially be regarded as a "predecisional intra-agency legal memorandum falling within the provisions of 5 U.S.C. § 552(b)(5) and therefore exempt from the compelled disclosure provisions of the Freedom of Information Act, as amended." 8 The decision in this case, however, does not rest there. Rather, plaintiff claims that this exemption is overridden by the fact that the Lacovara memorandum was expressly adopted or incorporated as part of a final disposition of the allegations of criminal liability of President Nixon and is therefore disclosable under 5 U.S.C. § 552(a)(2)(A). 9
The relationship between exemption five and section (a)(2)(A) of the FOIA was addressed by the Supreme Court in NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 153-54, 95 S.Ct. 1504, 1518, 44 L.Ed.2d 29 (1975):
(W)ith respect at least to "final opinions," which not only invariably explain agency action already taken or an agency decision already made, but also constitute "final dispositions" of matters by an agency, . . . we hold that Exemption 5 can never apply.
Therefore, the initial question is whether the WSPF Report of October, 1975, can be regarded as such a final opinion.
The Court in Sears considered the question of what constitutes a "final opinion" made in the "adjudication of cases" within the meaning of 5 U.S.C. § 552(a)(2)(A). There, the concern was with Appeals Memoranda sent from the General Counsel to the Regional Director of the NLRB deciding whether or not to issue a complaint on the basis of a "charge" filed by a private party with the Board. The Court analyzed the meaning of "final opinion":
The decision to dismiss a charge is a decision in a "case" and constitutes an "adjudication": an "adjudication" is defined under the Administrative Procedure Act, of which 5 U.S.C. § 552 is a part, as "agency process for the formulation of an order," 5 U.S.C. § 551(7); an "order" is defined as "the whole or part of a final disposition whether affirmative (or) negative . . . of an agency in a matter . . .," 5 U.S.C. § 551(6) (emphasis added); and the dismissal of a charge, as noted above, is a "final disposition." Since an Advice or Appeals Memorandum explains the reasons for the "final disposition" it plainly qualifies as an "opinion"; and falls within 5 U.S.C. § 552(a)(2)(A). 10
Concerning the possible criminal liability of President Nixon, the WSPF was given full authority, as quoted above in the regulations, to investigate and determine whether to prosecute allegations specifically involving the President. The Special Prosecutor was guaranteed complete independence and the Attorney General declared that he would "not countermand or interfere with the Special Prosecutor's decisions or actions." 11 The regulations further required that the Special Prosecutor "upon completion of his assignment submit a final report to the appropriate persons or entities of the Congress." 12 Thus, the WSPF Report was a required culminating act in the mandate of the WSPF to investigate, inter alia, allegations involving the President. 13
The decision contained in the WSPF Report of October, 1975, not to seek indictment of President Nixon was as final a disposition as a decision by the WSPF could be, representing, as it did, an unreviewable decision regarding its mandate to investigate and prosecute allegations involving the President. Under these unique circumstances, we hold that the Watergate Special Prosecution Force Report of October, 1975, is a final disposition, as it relates to the charges concerning President Nixon, within the meaning of 5 U.S.C. § 552(a)(2)(A). 14
We wish to emphasize that we view our conclusion regarding this construction of 5 U.S.C. § 552(a)(2)(A) on the facts presented here to be very narrow. That is, although we hold on the facts of this case that the WSPF Report is a final disposition for purposes of the FOIA, we come to this conclusion "(w)ithout deciding whether a public prosecutor makes 'law' when he decides not to prosecute or whether memoranda explaining such decisions are 'final opinions' . . . ." 15
Concluding that the WSPF Report is a final disposition does not end our inquiry. Plaintiff does not seek the WSPF Report itself but rather requests the Lacovara memorandum which the WSPF Report quotes and relies on in explaining its decision not to seek President Nixon's indictment. Plaintiff argues that the Lacovara memorandum was expressly adopted or incorporated by reference into the WSPF Report, and must be disclosed as part of the "final disposition" of the allegations concerning Mr. Nixon despite the claim of a section five exemption. 16
The Supreme Court in Sears also addressed the question of exemption from disclosure for memoranda incorporated by reference in non-exempt final disposition documents and the rule set forth there must initially guide us:
Thus, we hold that, if an agency chooses expressly to adopt or incorporate by reference an intra-agency memorandum previously covered by Exemption 5 in what would otherwise be a final opinion, that memorandum may be withheld only on the ground that it falls within the coverage of some exemption other than Exemption 5. 17
It is not disputed that the WSPF Report expressly adopted the Lacovara memorandum, at least in part, since it is quoted in the Report along with the Jaworski letter stating that the memorandum is on "file in this office." 18 Defendants do not deny that part of the Lacovara memorandum was adopted by the WSPF Report but rather contend that the only portion adopted is the one that is quoted in both the Jaworski letter and the WSPF Report, together with an additional legal citation which was disclosed to plaintiff. 19 On this basis defendants claim that the rest of the memorandum must be...
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