Playboy Enterprises, Inc. v. Department of Justice

• Decision Date: 11 May 1982
• Docket Number: No. 81-1605,81-1605
• Citation: 677 F.2d 931,219 U.S.App.D.C. 343
• Parties: , 8 Media L. Rep. 1901 PLAYBOY ENTERPRISES, INC. v. DEPARTMENT OF JUSTICE, et al., Appellants.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 931

677 F.2d 931

219 U.S.App.D.C. 343, 8 Media L. Rep. 1901

PLAYBOY ENTERPRISES, INC. v. DEPARTMENT OF JUSTICE, et al., Appellants.

No. 81-1605.

United States Court of Appeals, District of Columbia Circuit.

Argued Sept. 22, 1981.

Decided May 11, 1982.

Mary A. McReynolds, Attorney, Dept. of Justice, Washington, D. C., with whom Charles F. C. Ruff, U. S. Atty., Washington, D. C., at the time the briefs were filed and Leonard Schaitman, Attorney, Dept. of Justice, Washington, D. C., were on the brief for appellants.

Joe R. Reeder, Washington, D. C., with whom Timothy J. May, Robert H. Koehler and Claudia L. Deering, Patton, Boggs & Blow, Washington, D. C., were on the brief for appellee.

Doris Peterson, New York City, and Charles N. Mason, Jr., Washington, D. C., were on the brief for amici curiae, Center for Constitutional Right, et al. urging affirmance.

Jack C. Landau, Washington, D. C., was on the brief for amici curiae Reporters Committee for Freedom of the Press, et al. urging affirmance.

Before ROBINSON, Chief Judge, BAZELON, Senior Circuit Judge, and ROBB, Circuit Judge.

Opinion for the Court filed by Circuit Judge ROBB.

ROBB, Circuit Judge:

This is an action under the Freedom of Information Act, 5 U.S.C. § 552 (1976 & Supp. IV 1980), by Playboy Enterprises, Inc. against the Department of Justice. Playboy seeks to compel disclosure of a report prepared by the Department's Office of Professional Responsibility. The report relates to the activities of one Gary Thomas Rowe, Jr., an FBI informant, and the treatment of Rowe by the FBI. The Department asserted in the District Court that certain parts of the report are protected by various provisions of the FOIA, and in addition contended that the entire report is exempt from disclosure under 5 U.S.C. § 552(b)(5) (1976), known as Exemption 5. Exemption 5 provides that the Freedom of Information Act "does not apply to matters that are ... 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 District Court accepted the Department's claims of protection for specific parts of the report, but rejected the all-inclusive Exemption 5 argument. The Department appeals, alleging that the court misapplied Exemption 5.

In July of 1978 the New York Times published a series of articles concerning allegations that in the early 1960s G. Thomas Rowe, Jr., had committed violent crimes while working as an FBI informant inside the Ku Klux Klan. The newspaper stories were followed by an ABC television "documentary" program suggesting that in March of 1965 Rowe fired the bullet which killed Viola Liuzzo, a civil rights worker. Mrs. Liuzzo was shot while traveling an Alabama highway on her return from participation in the Selma to Montgomery freedom march.

In response to these stories, Senators Kennedy and Abourezk, the Chairman and a member of the Senate Judiciary Committee, submitted a written request to the Department for a report on the matter. After a preliminary investigation by the Department's Office of Professional Responsibility, the Attorney General, on October 24, 1978, established a task force within that office to make a detailed report. On November 2, 1978 the Attorney General set out three issues for the task force to explore:

(1) Whether FBI personnel acted improperly in handling Mr. Gary Thomas Rowe while he served as a Bureau Informant within the United Klans of America (UKA);

(2) Whether Civil Rights Division attorneys, who tried United States v. Eaton, et al. (the federal civil rights case arising out of the highway murder of Mrs. Viola Liuzzo), were aware of Mr. Rowe's alleged unreliability or suspected he was unreliable; and

(3) Whether there is any evidence to substantiate the allegation that Mr. Rowe was responsible for the death of Mrs. Viola Liuzzo (to the extent this is possible without prejudicing the rights of Mr. Rowe or the State of Alabama in view of Mr. Rowe's recent state indictment for the murder).

(J.A. at 167)

In July of 1979, after working on the investigation for more than eight months, the task force submitted a 302-page document to the Attorney General, called the "Rowe Report." In preparing the Report, the task force reviewed approximately 800 volumes of FBI records located in Atlanta, Birmingham, Mobile, Savannah, and Washington, D. C., and conducted sixty-four interviews of past and present FBI agents, Justice Department attorneys, state and local law enforcement officials, FBI informants, and Ku Klux Klan members. On December 15, 1980, after this litigation began, the Attorney General submitted to Senator Kennedy a twenty-five page "Summary of Results" of the investigation.

On March 21, 1980 Playboy submitted a FOIA request for the Rowe Report. On April 4, 1980, having received no response from the Department, Playboy filed an administrative appeal. On April 11, 1980 the Department denied Playboy's March 21 request, claiming the entire Report was exempt from disclosure under 5 U.S.C. §§ 552(b)(2), (3), (5)-(7)(D) (1976). ¹

On May 8, 1980, in the absence of a timely response to its April 4 administrative appeal, Playboy commenced this action in the United States District Court for the District of Columbia. In its defense, the Department referred to the same exemptions invoked in its April 11 letter to Playboy.

The parties filed cross-motions for summary judgment. In ruling on the motions the District Court reviewed the pleadings and supporting memoranda, five affidavits submitted by the Department, one affidavit submitted by amicus curiae, the Attorney General's "Summary of Results" prepared for Congress, eighteen pages of the Rowe Report which had been released in an unrelated civil suit, and eleven pages of the Report which were submitted in camera. The court did not review the remaining 273 pages of the Report; neither party requested that it do so, nor did the court sua sponte request that the entire Rowe Report be made available for in camera review.

On March 31, 1981 the District Court, 516 F.Supp. 233, ordered that the Rowe Report be given only limited protection from disclosure. The court held that three exemptions applied: first, 5 U.S.C. § 552(b)(7) ² required the deletion of names and identifying data of FBI agents, certain third parties, and confidential sources, and the deletion of confidential information furnished only by confidential sources; second, 5 U.S.C. § 552(b)(3) ³ required the deletion of summaries of evidence received by a grand jury; and third, 5 U.S.C. § 552(b)(5) ⁴ required deletion of segments of the Report "specifically designated as conclusions, recommendations, opinions, or advice of the task force." (J.A. at 188) (emphasis in original) The District Court ordered that remaining portions of the Rowe Report be disclosed except for pages one through sixteen which were not addressed in the Order. The court stayed its Order pending resolution of this appeal.

On this appeal the Department makes three allegations of error; all concern the District Court's ruling on Exemption 5. The Department argues: (1) that the court erred in not extending protection to the entire Rowe Report under the deliberative process privilege encompassed by Exemption 5; (2) that aside from the court's determination of the deliberative process issue it was error to find that interlocutory discovery rulings concerning the Rowe Report made in separate non-FOIA civil actions were not conclusive on the Exemption 5 question; and (3) that, even assuming that the entire Rowe Report is not protected by Exemption 5, the District Court erred in limiting Exemption 5 protection to conclusions, recommendations, opinions, and advice that are "specifically" designated as such.

The "deliberative process privilege" of Exemption 5 protects from disclosure opinions and recommendations on which governmental decisions are based. EPA v. Mink, 410 U.S. 73, 89-91, 93 S.Ct. 827, 836-837, 35 L.Ed.2d 119 (1973); Brinton v. Department of State, 204 U.S.App.D.C. 328, 333-34, 636 F.2d 600, 605-06 (1980), cert. denied, 452 U.S. 905, 101 S.Ct. 3030, 69 L.Ed.2d 405 (1981); Jordon v. Department of Justice, 192 U.S.App.D.C. 144, 163, 591 F.2d 753, 772 (1978). The exemption does not protect "purely factual material appearing in ... documents in a form that is severable without compromising the private remainder of the documents." EPA v. Mink, 410 U.S. at 91, 93 S.Ct. at 837. The District Court found that the Rowe Report

contains some portions which reflect the advice, conclusions, and recommendations of the task force, and that these portions are protected from disclosure pursuant to Exemption 5. However, it is only those segments of the Report which consist of or contain the advice, conclusions, and recommendations of the task force on legal or policy matters, which are to be withheld.

(J.A. at 176-77) In other words, the court concluded that the factual material in the Report is severable from those parts which are protected. In its brief in this court Playboy endorses this analysis, emphasizing that it does not "wish to probe the process whereby the task force assigned reliability or weight to specific evidence. Rather, it merely seeks the facts that were uncovered in this investigation of alleged government misconduct in the early 1960's." (Brief for Appellee at 25-26) The Department, on the other hand, argues that the entire Rowe Report reflects the "choice, weighing and analysis of facts" by the task force, and is therefore protected as a part of the deliberative process. (Brief for Appellant at 25) According to the Department "it is the very narration of the facts that reflects the evidence selected and credited." Id.

We are not persuaded by the Department's argument. Anyone making a report must of necessity select the facts to be mentioned in it; but a report does not become a part of the deliberative process merely because it...