Reporters Committee for Freedom of Press v. U.S. Dept. of Justice, s. 85-6020
| Decision Date | 10 April 1987 |
| Docket Number | 85-6144,Nos. 85-6020,s. 85-6020 |
| Citation | 259 U.S.App.D.C. 426,816 F.2d 730 |
| Parties | , 55 USLW 2606, 14 Media L. Rep. 1108 The REPORTERS COMMITTEE FOR FREEDOM OF the PRESS, et al., Appellants, v. UNITED STATES DEPARTMENT OF JUSTICE, et al. (Two Cases) |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeals from the United States District Court for the District of Columbia (Civil Action No. 79-03308).
Victoria Louise Radd, with whom Kevin T. Baine, Washington, D.C., was on the brief for appellants.
John F. Daly, Dept. of Justice, with whom Richard K. Willard, Asst. Atty. Gen., Dept. of Justice, Joseph E. diGenova, U.S. Atty., Leonard Schaitman, Dept. of Justice, Washington, D.C., were on the brief for appellees.
Douglas Letter, Washington, D.C., entered an appearance for appellees in No. 85-6020.
Before STARR and SILBERMAN, Circuit Judges, and McGOWAN, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge SILBERMAN.
This appeal is from a summary judgment entered by the district court dismissing a suit brought by Robert Schakne, a CBS News correspondent, and The Reporters Committee for Freedom of the Press ("Reporters"), an association of journalists, under the Freedom of Information Act ("FOIA"), 5 U.S.C. Sec. 552(a)(4)(B) (1982). Reporters and Schakne sought to compel the Department of Justice and the Federal Bureau of Investigation to produce "any records indicating any arrests, indictments, acquittals, convictions and sentences of Phillip Medico, Charles Medico, or Samuel Medico, by state, local or federal law enforcement agencies or courts." 1 But Reporters and Schakne limited their request to documents containing information that was a "matter[ ] of public record."
Schakne's original FOIA request, filed with the Department of Justice on February 3, 1978, was not so limited, and sought in addition records on William Medico, the deceased brother of the above-named individuals. When the request was denied Schakne sent letters of appeal to the Department of Justice Office of Privacy and Information Appeals, stating for the first time that "most, if not all, of the requested documents would be on the public record in the jurisdiction in which the criminal justice procedures were invoked." On June 14, 1978, Quinlan Shea, director of the office, affirmed the denial with respect to the living individuals, citing FOIA privacy Exemptions 6 and 7(C). Shea, however, modified the initial denials by ordering the release of records relating to the deceased William Medico. Schakne thus received what was purported to be the only record the Department of Justice and the FBI had on William Medico: his "rap sheet." 2
Reporters also filed a request with the Department of Justice on September 21, 1978, calling for the same documents sought by Schakne. The request was denied, the denial appealed, and on January 15, 1979, the Office of Privacy and Information Appeals affirmed the denial in full, citing Exemption 7(C), and Exemption 3 in conjunction with 28 U.S.C. Sec. 534(b) (1982). On March 13, 1979, in response to an inquiry by CBS News, Attorney General Griffin Bell explained that while "criminal history contained in other Department of Justice files might be released if not otherwise exempt under the Freedom of Information Act," the Department of Justice was "prohibited by statute and case law from releasing ... 'rap sheets,' " and therefore rap sheets were exempt under Exemption 3. The June 14, 1978 release of the deceased William Medico's rap sheet was described as a mistake--the result of earlier confusion over the Department's position.
Attorney General Bell's letter did not fully explain the Department's policy regarding release of rap sheets. Apparently there are two circumstances under which the Department--despite lacking explicit statutory authorization--believes that it has discretion to release rap sheets (or the information contained on them) to private citizens. First, the Department will release rap sheets to the subject of the rap sheet, 28 C.F.R. Sec. 16.32 (1986), because of Department of Justice Order No. 556-73, 38 Fed.Reg. 32,806 (1973). Second, the Department's regulations provide that rap sheets can be made available "[f]or issuance of press releases and publicity designed to effect the apprehension of wanted persons...." 28 C.F.R. Sec. 20.33(a)(4) (1986). This "wanted persons" exception exists, according to the Department's brief, because it is "plainly among the 'coordinated law enforcement activities ...' that Sec. 534 was designed to facilitate." 3
Reporters and Schakne were not satisfied with the government's response, and filed suit on December 7, 1979. On October 1, 1981, the court ordered the Department to a file a Vaughn index detailing the exact nature of the documents being withheld, and an affidavit explaining, inter alia, the extent of the search conducted on behalf of Reporters and Schakne. In response to the court's order, the FBI conducted an "expanded" search of its Central Records System, discovered an additional document that made reference to the deceased William Medico, and released the document. But the FBI refused to submit an index of the records withheld, explaining in an affidavit that public acknowledgment of the mere existence of such information requested by Reporters and Schakne might constitute a clearly unwarranted invasion of the subject's personal privacy.
While the suit was pending, Phillip and Samuel Medico died, leaving only one subject of the request--Charles Medico--still living. On April 29, 1983, the chief of the FBI's Freedom of Information--Privacy Acts Section, Records Management Division sent Reporters and Schakne letters indicating that since Phillip and Samuel Medico had died, the FBI would release "any FBI records responsive to [the] FOIA request" concerning the two--in order "[t]o be consistent" with the previous release of the records of the deceased William Medico. Insofar as this decision offered release of rap sheets of deceased subjects, it was plainly inconsistent with the Department's position that the Department was prohibited from releasing rap sheets to third-party members of the general public. The Department's brief explains the action as an effort to "largely moot the present controversy." The FBI attached to the letters copies of a document from the Central Records System containing references to Phillip Medico, and revealed that in fact there were no rap sheets on Phillip or Samuel Medico. With regard to Charles Medico, the still living subject of the request, the FBI partially abandoned the Department's earlier position that the records (other than rap sheets) were exempt from release under Exemption 7(C), and stated "any financial crime information which might be contained in the FBI Central Records System could be disclosed in the public interest." No such information was released, however, because none existed. The Department of Justice Criminal Division and the Drug Enforcement Administration also wrote similar letters on the same date to Reporters and Schakne, indicating that no records at all had been found on Phillip and Samuel Medico, and that no "financial crime information" had been found on Charles Medico.
The district court then dismissed the suit. The only records the Department still refused to release (or acknowledge the existence of) were Charles Medico's rap sheet and records (other than rap sheets) containing "non-financial crime" information on Charles Medico. The court held that Charles Medico's rap sheet would be exempt from disclosure under FOIA because 28 U.S.C. Sec. 534 was an Exemption 3 withholding statute that "specifically exempt[s]" rap sheets from disclosure by requiring they "be withheld from the general public in such a manner as to leave no discretion on the issue." Further, after reviewing an in camera submission by the government, the court held that any other records on Charles Medico containing "non-financial crime" information would be exempt from release under FOIA privacy Exemptions 6 and 7(C).
Normally, when we construe statutes first interpreted by executive departments or independent administrative agencies we are obliged to give deference to the department or agency interpretation. Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). That is so because Congress is presumed to delegate to expert agencies, and not to the judiciary, the authority to reasonably define and apply less than precise statutory terminology, id. at 844, 865--unless the legislative history of a particular statute carries a specific intent. Id. at 842, 104 S.Ct. at 2781. FOIA, however, is an unusual statute; it applies to all government agencies, and thus no one executive branch entity is entrusted with its primary interpretation. Moreover, since the statute's purpose--disclosure of certain information held by the government--creates tension with the understandable reluctance of government agencies to part with that information, Congress intended that the primary interpretive responsibilities rest on the judiciary, whose institutional interests are not in conflict with that statutory purpose. See H.R.Rep. No. 1497, 89th Cong., 2d Sess. 30 (1966), U.S.Code Cong. & Admin.News 1966, p. 2418 ().
Many statutes other than FOIA bear upon the government's authority to disclose information to the public. In the absence of FOIA we would, pursuant to Chevron, defer to an agency's reasonable interpretation of such statutes. FOIA, however, directs federal agencies to comply with "any request for records," 5 U.S.C. Sec. 552(a)...
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