Providence Journal Co. v. U.S. Dept. of Army

• Decision Date: 04 June 1992
• Docket Number: No. 92-1166,92-1166
• Citation: 981 F.2d 552
• Parties: PROVIDENCE JOURNAL COMPANY and Gerald M. Carbone, Plaintiffs, Appellees, v. UNITED STATES DEPARTMENT OF the ARMY, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 552

981 F.2d 552

PROVIDENCE JOURNAL COMPANY and Gerald M. Carbone, Plaintiffs, Appellees, v. UNITED STATES DEPARTMENT OF the ARMY, Defendant, Appellant.

No. 92-1166.

United States Court of Appeals,

First Circuit.

Heard June 4, 1992.

Decided December 8, 1992.

John S. Koppel, Atty. Civ. Div., U.S. Dept. of Justice, Washington, DC, with whom Lincoln C. Almond, U.S. Atty., Providence, RI, Stuart M. Gerson, Asst. U.S. Atty. Gen., Leonard Schaitman, Lt. Col. Richard D. Rosen and Major Patrick W. Lisowski, Washington, DC, were on brief, for defendant, appellant.

Joseph V. Cavanagh, Jr. with whom Michael DiBiase, Karen A. Pelczarski and Blish & Cavanagh, Providence, RI, were on brief, for plaintiffs, appellees.

Before CYR, Circuit Judge, RONEY, ^* Senior Circuit Judge, and BOUDIN, Circuit Judge.

CYR, Circuit Judge.

This appeal is taken from a district court judgment directing the United States Department of the Army ("Army") to disclose to the Providence Journal Company ("Journal"), pursuant to a Freedom of Information Act ("FOIA") request, numerous documents relating to an internal criminal investigation into allegations against six officers of the Rhode Island National Guard ("RING"). The Army contends that the documents are protected from compelled disclosure under three FOIA exemptions.

I BACKGROUND

During 1988, the Office of the Inspector General of the Army ("IG") received four anonymous letters implicating six RING officers in alleged misconduct punishable either by internal disciplinary action or by court-martial under the Uniform Code of Military Justice. See 10 U.S.C. §§ 801-946 (1985 & Supp.1992). The Army Vice Chief of Staff ("VCOS") directed the IG to investigate the charges against two "senior" officers and to submit a report to the Army officer ("Army command") invested with the authority to determine whether either disciplinary action or court-martial was warranted. The allegations against the four junior officers were referred to the National Guard Bureau.

In order to foster cooperation and curb possible fears of reprisal or harassment, the IG's office, which has no subpoena power, promises confidentiality--as to both witness identity and statement content--"to the maximum extent possible, particularly when it is specifically requested." Department of Army Regulation ("DAR") 20-1, p 1-15a. The IG interviewed twenty-seven witnesses in the course of the investigation. Three witnesses waived their right to confidentiality. In December 1989, the IG submitted a report ("IG Report"), which was "approved" by the Army VCOS. Army regulations provide that "approval" of an IG report does not connote official In due course, the Journal and one of its reporters filed an FOIA request for "all documents pertaining to the Inspector General's investigation of the Rhode Island National Guard." See 5 U.S.C. § 552 (1990). The Army released a redacted version of the IG Report, withholding several exhibits in reliance on four FOIA exemptions. See id. §§ 552(b)(5) (exemption for predecisional intra-agency memoranda), (6), (7)(C) (exemptions to safeguard against unwarranted invasions of privacy), and (7)(D) (exemption for information provided by a "confidential source"). Following an unsuccessful administrative appeal to the Army General Counsel, the Journal filed suit in the United States District Court for the District of Rhode Island to compel disclosure of the unredacted documents pursuant to 5 U.S.C. § 552(a)(4)(B). The parties filed cross-motions for summary judgment. The district court directed the Army to submit a so-called Vaughn Index, see Vaughn v. Rosen, 484 F.2d 820, 824 (D.C.Cir.1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974), which lists the precise grounds for the Army's exemption claims with respect to each redaction or withheld document, as follows:

                Army adoption of its findings or recommendations.   DAR 20-1, p 3-1c.   The record reveals no further Army action on the IG Report
                

A. IG Report

1 Identity of the six RING officers who were targets of the investigation [Exemptions 6 & 7(C) ];

2,6 IG's conclusions as to whether each allegation was substantiated or unsubstantiated [Exemption 5];

3,5 IG's synopsis of each allegation and findings of fact [Exemptions 5 & 7(D) ];

4 Statements provided by confidential and non-confidential witnesses [Exemptions 5 & 7(D) ];

7 IG's final recommendations regarding further disciplinary action [Exemption 5];

B. Full transcript of statement by Nonconfidential source [Exemptions 5 & 7(D) ];

C-E. Internal memoranda and directives between Army VCOS and IG's Office [Exemptions 6, 7(C) & 7(D) ];

F-I. Four anonymous letters [Exemptions 6, 7(C) & 7(D) ];

J. Travel vouchers [Exemptions 6, 7(C) & 7(D) ]. ¹

Following an in camera inspection of the unredacted documents, the district court granted partial summary judgment and directed the Army to release the entire IG Report, excepting only the names (and other identifying information) of the confidential sources (Vaughn Index §§ A3, A4, A5) and the various intra-agency memoranda (Vaughn Index §§ C-E). ²

II

DISCUSSION

The FOIA was designed to expose the operations of federal agencies to public scrutiny without endangering efficient administration, as a means of deterring the development and application of a body of "secret law." See Department of Air Force v. Rose, 425 U.S. 352, 360-61, 96 S.Ct. 1592, 599, 48 L.Ed.2d 11 (1976); ³ NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 153, 95 S.Ct. 1504, 1518, 44 L.Ed.2d 29 (1975). As the FOIA presumes public entitlement to agency information, an agency which would withhold information must establish its right to an FOIA exemption. See 5 U.S.C. § 552(a)(4)(B). The district court must make a de novo determination as to the validity of the agency's exemption

                claim.   See Department of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 755, 109 S.Ct. 1468, 1472, 103 L.Ed.2d 774 (1989).   FOIA exemptions are construed narrowly, Department of Justice v. Julian, 486 U.S. 1, 8, 108 S.Ct. 1606, 1611, 100 L.Ed.2d 1 (1988);  Curran v. Department of Justice, 813 F.2d 473, 473-74 (1st Cir.1987), and any "[d]oubts are customarily to be resolved in favor of openness."  Irons v. FBI, 811 F.2d 681, 685 (1st Cir.1987) [hereinafter "Irons I "]
                

A. Exemption 5

With respect to the IG Report's "subjective" evaluation of the evidence against the two senior RING officers, as well as the IG's recommendations to the Army VCOS, the Army asserts a claim under Exemption 5 which prohibits compelled disclosure of "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. § 552(b)(5). Agency documents which would not be obtainable by a private litigant in an action against the agency under normal discovery rules (e.g., attorney-client, work-product, executive privilege) are protected from disclosure under Exemption 5. United States v. Weber Aircraft Corp., 465 U.S. 792, 799, 104 S.Ct. 1488, 1492, 79 L.Ed.2d 814 (1984); EPA v. Mink, 410 U.S. 73, 86, 93 S.Ct. 827, 835, 35 L.Ed.2d 119 (1973). The Army relies on the executive or "deliberative process" privilege, see, e.g., id. at 85-86, 93 S.Ct. at 835 (1973) (national security memo on nuclear testing prepared for President), which is designed to safeguard and promote agency decisionmaking processes in at least three ways:

[I]t serves to assure that subordinates within an agency will feel free to provide the decisionmaker with their uninhibited opinions and recommendations without fear of later being subject to public ridicule or criticism; to protect against premature disclosure of proposed policies before they have been finally formulated or adopted; and to protect against confusing the issues and misleading the public by dissemination of documents suggesting reasons and rationales for a course of action which were not in fact the ultimate reasons for the agency's action.

Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854, 866 (D.C.Cir.1980); see also Schell v. Department of Health and Human Servs., 843 F.2d 933, 939 (6th Cir.1988). After considering any potential impact public disclosure might have on the employee-advisor, the agency decisionmaker, and the public, the court should construe Exemption 5 as narrowly as is "consistent with efficient Government operation." Mink, 410 U.S. at 89, 93 S.Ct. at 837 (citation omitted). Normally, a document will qualify for protection under Exemption 5 if it is both "predecisional" and "deliberative." See Dow Jones & Co. v. Department of Justice, 908 F.2d 1006, 1008-09 (D.C.Cir.1990).

1. "Predecisional Document" Test

A document will be considered "predecisional" if the agency can (i) pinpoint the specific agency decision to which the document correlates, Paisley v. CIA, 712 F.2d 686, 698 (D.C.Cir.1983), (ii) establish that its author prepared the document for the purpose of assisting the agency official charged with making the agency decision, Renegotiation Bd. v. Grumman Aircraft Eng'g Corp., 421 U.S. 168, 184, 95 S.Ct. 1491, 1500, 44 L.Ed.2d 57 (1975); Hopkins v. Department of Hous. and Urban Dev., 929 F.2d 81, 84 (2d Cir.1991); Coastal States, 617 F.2d at 866, and (iii) verify that the document "precedes, in temporal sequence, the 'decision' to which it relates." Senate of Puerto Rico v. Department of Justice, 823 F.2d 574, 585 (D.C.Cir.1987). The Journal concedes that the Army VCOS ordered the IG to conduct the preliminary criminal investigation and that Army command, not the IG, is the final decisionmaker as to whether there is to be any further disciplinary or prosecutorial action against the RING officers. See Rules for Court-Martial 306(a) ("Each commander has discretion to dispose of offenses...."); Hopkins, 929 F.2d at 85 (document "predecisional" if its author "lacked any authority to take final agency action").

Thus, the IG Report would be a...