FOUNDING CHURCH OF SCIENTOLOGY OF WASHINGTON, D. C., INC.
v.
Donald T. REGAN, Secretary of the Treasury, et al.
No. 80-1546.
United States Court of Appeals,
District of Columbia Circuit.
Argued Jan. 28, 1981.
Decided Dec. 31, 1981.
Appeal was taken from orders of the United States District Court for the
District of Columbia, William B. Bryant, Chief Judge, 490 F.Supp. 144,
requiring the United States National Central Bureau of the International Police
Organization to disclose documentary materials previously received from foreign
police agencies through Interpol concerning the Church of Scientology, under
the Freedom of Information Act, and to retrieve and index similar documents
from Interpol's files in Paris. The Court of Appeals, Spottswood W. Robinson,
III, Chief Judge, held that: (1) "confidential source" within exemption for
records obtained from confidential source for law enforcement purposes is not
limited to individuals and may include institutions such as Interpol; (2) such
exemption does not require showing that enforcement proceedings are currently
under way or the existence of actual contemplated enforcement proceeding, but
only that the materials were amassed for law enforcement purposes; and (3)
USNCB is not branch or agent of Interpol and cannot be required to retrieve and
index documents already forwarded to Interpol.
Reversed and remanded.
[1] RECORDS
Within Freedom of Information Act exemption with respect to law enforcement
records furnished by confidential source, "confidential source" is not
limited to individuals but extends to institutions, including Interpol. 5
U.S.C.A. s 552(b)(7)(D).
See publication Words and Phrases for other judicial constructions and
definitions.
[2] RECORDS
Under Freedom of Information Act exemption with respect to investigatory
records compiled for law enforcement purposes furnished by confidential source,
there is no requirement of a showing that enforcement proceedings are currently
under way or that there is an actual contemplated enforcement proceeding, but
only that the materials were amassed for law enforcement purposes. 5
U.S.C.A. s 552(b)(7)(A, D).
[3] RECORDS
Freedom of Information Act empowers federal courts to compel disclosure of
agency records improperly withheld, but does not confer authority on the courts
to command agency to acquire possession or control of records they do not
already have. 5 U.S.C.A. s 552(a).
[4] RECORDS
Although the United States National Central Bureau is an affiliate of Interpol,
it is neither a branch nor an agent of Interpol, and thus it cannot be
required under the Freedom of Information Act to retrieve and index documents
already forwarded to Interpol, nor did its retrieval of some Interpol documents
preclude it from refusing attempt to obtain the rest. 5 U.S.C.A. s
552(a)(6)(B).
*1159 **340 Appeal from the United States District Court for the District
of Columbia (D.C.Civil Action No. 75-1471).
Marleigh Dover, Lang, Dept. of Justice, with whom Alice Daniel, Asst. Atty.
Gen., Washington, D. C., at the time the brief was filed, Charles F. C. Ruff,
U. S. Atty., and Leonard Schaitman, Dept. of Justice, Washington, D. C., were
on the brief, for appellants.
Robert A. Seefried, with whom Earl C. Dudley, Jr., Washington, D. C., was on
the brief, for appellee.
Before ROBINSON, Chief Judge, McGOWAN, Senior Circuit Judge, and PARKER,
District Judge [FN*].
FN* Of the United States District Court for the District of Columbia,
sitting by designation pursuant to 28 U.S.C. s 292(a) (1976).
Opinion for the court filed by Chief Judge SPOTTSWOOD W. ROBINSON, III.
SPOTTSWOOD W. ROBINSON, III, Chief Judge:
The Government appeals from an order of the District Court, 490 F.Supp.
144, requiring the United States National Central Bureau (USNCB) of the
International Police Organization (Interpol) to disclose documentary materials,
previously received from foreign police agencies through Interpol, concerning
the Founding Church of Scientology of Washington, D. C., Inc. In reaching this
determination, the court rejected the Government's [FN1] argument that Interpol
is a confidential source within the meaning of Exemption 7(D) of the Freedom of
Information Act (FOIA).[FN2] The court further directed the Government to
retrieve and index similar documents, formerly but not currently in the
possession of USNCB, from Interpol's files at its headquarters in Paris,
France. Recent decisions of the Supreme Court and this court, by our analysis,
control the questions here at issue, and require us to reverse the order under
review.
FN1. We refer to the appellants collectively as "the Government."
FN2. 5 U.S.C. s 552(b)(7)(D) (1976), quoted in text infra at note 15.
I. BACKGROUND
Throughout this controversy, the focus has been on documents pertaining to the
Church that are or were held by USNCB, the agency maintaining liaison between
Interpol and the United States. Interpol [FN3] is an international body
organized "to ensure and promote the widest possible mutual assistance between
all criminal police authorities within the limits of the law existing in the
different countries and in the spirit of the 'Universal Declaration of Human
Rights.' " [FN4] The organization has its secretariat in Paris, France, where
experts in various branches of law enforcement work to assist member countries
in coordinating international efforts in that field by compiling and exchanging
information on criminal activity.
FN3. Our description of Interpol and USNCB is taken primarily from one of
the affidavits submitted to the District Court. Third affidavit of
Marydale Drury (filed May 8, 1980), J. App. 146 (hereinafter cited as Drury
Affidavit). Another description of Interpol and its operations may be
found in Sami v. United States, 199 U.S.App.D.C. 173, 617 F.2d 755
(1979). See also Steinberg v. Interpol, No. 80-1336 (D.C.Cir. Oct. 23,
1981).
FN4. Interpol Const. art. 2 (1968), quoted in Sami v. United States,
supra note 5, 199 U.S.App.D.C. at 176-177, 617 F.2d at 758-759 (1979).
Interpol has established a world wide communications network, but all actual
investigative and enforcement functions are performed by domestic police
authorities of participating governments. Each member country designates a
national law enforcement agency-the United States has appointed USNCB-referred
to as its "national central bureau," to serve as a message and information
exchange between that country and Interpol. Official inquiries emanating from
law enforcement entities within a member country are channeled
*1160 **341 through its national central bureau to Interpol, and the
route is reversed for responses. The national central bureaus thus serve as
transmitters between domestic law enforcers and Interpol, which, in turn, is
the conduit of communication among the national central bureaus of different
nations.
In 1975, the Church presented a FOIA request for access to all USNCB records
relating to the Church and its founder, L. Ronald Hubbard.[FN5] Reacting
thereto, USNCB released numerous documents, in whole or in part, but declined
to disclose thirty-seven documents invoking Exemptions 2 [FN6] and 7(C) [FN7]
of FOIA as to some of the documents and claiming that all were shielded by
Exemption 7(D).[FN8] In addition, USNCB informed the Church that several of
the documents desired had been forwarded to Interpol in Paris, and that no
copies had been retained.
FN5. The request was subsequently narrowed to records falling under
several specific headings. See Complaint, Exhibit C, J. App. 21.
FN6. 5 U.S.C. s 552(b)(2) (1976).
FN7. 5 U.S.C. s 552(b)(7)(C) (1976).
FN8. 5 U.S.C. s 552(b)(7)(D) (1976), quoted in text infra at note 20.
Dissatisfied with this disposition, the Church filed suit in the District
Court in an effort to obtain all of the materials it had asked for. The court
conducted an in camera inspection of the documents still in USNCB's possession
and sustained the Government's Exemption 2 and Exemption 7(C) claims as to
some,[FN9] but rejected its Exemption 7(D) argument that all of the documents
could justifiably be withheld because they consisted of confidential
information furnished only by a confidential source-that is, Interpol.[FN10]
The court rested its holding on two independent grounds, ruling that only
persons, not institutions, can be confidential sources within the meaning of
Exemption 7(D),[FN11] and that the Government had failed to demonstrate that
the documents were compiled in the course of actual law enforcement activity.
[FN12] Consequently, the court ordered USNCB to release the information sought
by the Church and not protected by Exemptions 2 and 7(C).[FN13]
FN9. Founding Church of Scientology v. Miller, 490 F.Supp. 144, 146-
147 (D.D.C.1980). Cross-motions for summary judgment provided the
procedural posture of the case.
FN10. Id. at 147-150.
FN11. Id. at 149.
FN12. Id.
FN13. Id. at 150.
Addressing the Church's contention that it was also entitled, by an earlier
decision of the District Court,[FN14] to the documents forwarded by USNCB to
Interpol, the court ordered USNCB to obtain and submit a Vaughn index [FN15] of
the materials previously returned to Interpol.[FN16] On the Government's
motion for reconsideration, the court reexamined its document-retrieval order
in light of the Supreme Court's intervening decision in Kissinger v. Reporters
Committee for Freedom of the Press.[FN17] Adopting the view that USNCB is
essentially a field facility of Interpol, the court reasoned that "Congress
expected agencies to search for their documents in affiliate offices," [FN18]
concluded that Kissinger was not controlling in the circumstances presented,
and reaffirmed its original ruling.[FN19]
FN14. Founding Church of Scientology v. Blumenthal, No. 75-1471 (D.D.C.
Aug. 11, 1977), clarified sub nom. Founding Church of Scientology v.
Simon, No. 75-1471 (D.D.C. Nov. 3, 1978).
FN15. See Vaughn v. Rosen, 157 U.S.App.D.C. 340, 484 F.2d 820 (1973),
cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974).
FN16. 490 F.Supp. at 150.
FN17. 445 U.S. 136, 100 S.Ct. 960, 63 L.Ed.2d 267 (1980).
FN18. Founding Church of Scientology v. Miller, 490 F.Supp. 144, 150,
151 (D.D.C. May 13, 1980) (memorandum and order on reconsideration)
(hereinafter cited as "Decision on Reconsideration").
FN19. Id. The court subsequently granted the Government's motion for a
stay of the disclosure order pending appeal. Founding Church of
Scientology v. Miller, Civ.No.75-1471 (D.D.C. May 28, 1980) (stay order),
J. App. 526.
*1161 **342 II. EXEMPTION 7(D)
A. The Meaning of "Confidential Source"
(1) Exemption 7(D) of FOIA insulates from mandatory disclosure
investigatory records compiled for law enforcement purposes, but only to the
extent that the production of such records would ... disclose the identity of a
confidential source and, in the case of a record compiled by a criminal law
enforcement authority in the course of a criminal investigation, or by an
agency conducting a lawful national security intelligence investigation,
confidential information furnished only by the confidential source.... [FN20]
FN20. 5 U.S.C. s 552(b)(7)(D) (1976).
In part, the District Court based its ruling that Exemption 7(D) was
inapplicable on its view that the term "confidential source" was meant to apply
only to individuals and not to institutions.[FN21] In the interval since the
court made this interpretation, however, we have decided two cases taking the
diametrically opposite stance.
FN21. Founding Church of Scientology v. Miller, supra note 9, 490
F.Supp. at 147-149.
In Lesar v. United States Department of Justice,[FN22] we were confronted with
the question whether the Department was justified in refusing to disclose an
appendix to a special task force report on the assassination of Dr. Martin
Luther King, Jr. The contents of the appendix included investigative files
compiled by the Memphis, Tennessee, and Atlanta, Georgia, police departments
and surrendered to the Federal Bureau of Investigation in return for a promise
of confidentiality. We held that the materials constituted confidential
information furnished only by a confidential source, and thus that they could
lawfully be withheld.[FN23] In so determining, we rebuffed Lesar's argument
that Exemption 7(D) safeguards only information provided by human sources. Our
study of the legislative history of this exemption revealed that "Congress did
not intend to distinguish among the types of sources, afforded protection under
Exemption 7(D)." [FN24] We therefore held "that the word 'source' in Exemption
7(D) includes not only individuals such as private citizens and paid informants
but also entities such as the state and local law enforcement agencies (there)
involved." [FN25] We reaffirmed this position in Baez v. United States
Department of Justice,[FN26] where we held that " 'the word source includes
nonfederal entities such as state, local, and foreign law enforcement
agencies." [FN27]
FN22. 204 U.S.App.D.C. 200, 636 F.2d 472 (1980).
FN23. Id. at 220, 636 F.2d at 492.
FN24. Id. at 219, 636 F.2d at 491.
FN25. Id.
FN26. 208 U.S.App.D.C. 199, 647 F.2d 1328 (1980).
FN27. Id. at 211, 647 F.2d at 1340. The appellant had requested the
FBI to produce all information referring to her in files maintained under
her name or under the names of other individuals or organizations. Id.
at 201, 647 F.2d at 1330. Invoking Exemption 7(D), the Government wanted
to withhold the identities of state, local, and foreign agencies that had
provided information to the agency in confidence. Reiterating the
substance of our holding in Lesar, we upheld the FBI's refusal to
release the data sought, commenting that "Exemption 7(D) protects not only
information furnished by a confidential source but the identity of the
confidential source as well." Id. at 211, 647 F.2d at 1340.
We realize that Baez and Lesar are distinguishable on their facts. The
names of the confidential institutional sources in Baez were unknown, but
the identities of the suppliers of the records sought in Lesar -the
Atlanta and Memphis police departments-were clearly established. In the
present case, it has been suggested that the Lesar holding was in error
because Exemption 7(D) cannot apply when the identity of the confidential
source has already been disclosed and the sole purpose of withholding is to
protect the information and not its source. But whatever the merit of this
thesis, we do not consider it, for we are bound by our prior holding in
Lesar. In the case before us, Interpol is in a position precisely
analogous to that of the Atlanta and Memphis police departments in Lesar.
Although it is known that Interpol was the source of the information in
dispute-if indeed it is a confidential source, see note 47 infra-Lesar
compels us to uphold USNCB's refusal to disclose the materials provided by
Interpol.
In any event, we do not think this distinction is important here. USNCB
has refused to release the records here sought because it fears divulgence
of the identities of the foreign police authorities that submitted the
materials to Interpol for transmittal to USNCB, as well as the sources
utilized by those authorities and the substance of the information
provided. See Drury Affidavit, supra note 3, at 9-14, J. App. 154-159.
In this respect, Interpol was merely a conduit for those confidential
sources. To command the release of information received from Interpol when
that would not be required had USNCB received the data directly from the
foreign law enforcement agencies would be nonsensical. Thus, contrary to
the Church's assertions, this really is a case where the effort is to
shield both the identity of the confidential sources and the information
they supplied.
*1162 **343 In light of Lesar and Baez, the construction that the
District Court placed on "confidential source" cannot be accepted.
B. The Necessity of an "Actual, Contemplated Law Enforcement Proceeding"
(2) Additionally to concluding that the Government was unable to satisfy the
confidential-source requirement of Exemption 7(D), the District Court ruled
that the documents requested by the Church must be relinquished because the
Government had not shown that the information withheld was obtained "in the
course of an 'actual, contemplated enforcement proceeding.' " [FN28] The court
found that the materials in question had been compiled for law enforcement
purposes,[FN29] but it ruled that the absence of an ongoing law enforcement
proceeding was fatal to the Government's dependence on Exemption 7(D) to
protect the data from disclosure.[FN30] We agree with the Government that this
holding is in error. The pertinent language of Exemption 7(D) refers
specifically to assemblies of information for "law enforcement purposes,"
[FN31] and we see no reason to read any further requirement into it.
FN28. Founding Church of Scientology v. Miller, supra note 9, 490
F.Supp. at 149.
FN29. Id. at 147. More precisely, the District Court stated that
"(d)espite its lack of law enforcement authority, there can be no question
that the records involved here were compiled by Interpol to relay to other
police entities 'for law enforcement purposes.' " Id. Given the context
of the District Court's statement, it appears that "Interpol" refers to
USNCB as well as to the international organization headquartered in Paris.
The nature of the "law enforcement purposes" requirement has been explored
previously by this court, see, e.g., Abramson v. FBI, 212
U.S.App.D.C. ---, 658 F.2d 806 (1980), cert. granted, --- U.S. ----, 101
S.Ct. 3079, 69 L.Ed.2d 951 (U.S.1981); Weissman v. CIA, 184 U.S.App.D.C.
117, 119-121, 565 F.2d 692, 694-696 (1977); Rural Housing Alliance v.
United States Dep't of Agriculture, 162 U.S.App.D.C. 122, 128-131, 498 F.2d
73, 79-82 (1974) (decided prior to enactment of 1974 FOIA amendments), as
well as other circuits, see, e.g., Irons v. Bell, 596 F.2d 468, 472-476
(1st Cir. 1979); Kuehnert v. FBI, 620 F.2d 662, 666-667 (8th Cir. 1980);
Founding Church of Scientology v. United States Dep't of Army, 611 F.2d
738, 748-749 (9th Cir. 1979). Since no challenge has been raised to the
holding that the documents were compiled for law enforcement purposes, we
need not address that question in this case.
FN30. Founding Church of Scientology v. Miller, supra note 9, 490
F.Supp. at 149.
FN31. 5 U.S.C. s 552(b)(7)(D), quoted in text supra at note 20. See
note 29 supra.
In deeming an ongoing enforcement activity a precondition to operation of
Exemption 7(D), the District Court relied to a large extent on NLRB v. Robins
Tire and Rubber Co.,[FN32] where the Supreme Court held that to invoke
Exemption 7(A) the Government must demonstrate that the information it seeks to
withhold was compiled during the course of "actual, contemplated enforcement
proceedings." [FN33] In marked contrast to Exemption 7(D), however, Exemption
7(A), safeguards materials compiled for law enforcement purposes "only to the
extent that the production of such records would ... interfere with enforcement
proceedings." [FN34] It is difficult to imagine how such interference could
occur except during the course of "actual contemplated enforcement
proceedings," and the risk of harm which Exemption 7(A) is designed to avoid
thus exists only for the period when enforcement efforts are actively being
pursued.
FN32. 437 U.S. 214, 98 S.Ct. 2311, 57 L.Ed.2d 159 (1978).
FN33. Id. at 232, 98 S.Ct. at 2322, 57 L.Ed.2d at 172.
FN34. 5 U.S.C. s 552(b)(7)(A) (1976).
Conversely, Exemption 7(D) protects against the damage that might be done by
*1163 **344 disclosure of the identity of a confidential source or release
of information supplied only by such a source. The danger inherent in
divulgence of such data is not eliminated by the culmination of enforcement
proceedings or by a decision that the information on hand does not warrant
initiation of such proceedings.[FN35] We therefore hold, that Exemption 7(D)
does not require a showing that enforcement proceedings are currently under
way, but only that the sought-after materials were amassed for law enforcement
purposes.[FN36] We therefore reject the District Court's holding that the
Government must demonstrate the existence of an actual contemplated enforcement
proceeding to satisfy the demands of Exemption 7(D).
FN35. See Bast v. United States Dep't of Justice, 665 F.2d 1251, at
1254 (5th Cir. 1981). See also Rural Housing Alliance v. United States
Dep't of Agriculture, supra note 29, 162 U.S.App.D.C. at 129, 498 F.2d at
80. Although decided prior to the 1974 amendments of FOIA, the policy
considerations expressed are still relevant.
FN36. We note that the question whether an ongoing enforcement proceeding
is required differs from the question whether the agency seeking refuge in
Exemption 7(D) compiled the information for law enforcement purposes, see
note 29 supra, and from the question whether the agency was conducting "a
criminal investigation, or ... a lawful national security intelligence
investigation," a prerequisite to operation of Exemption 7(D). 5 U.S.C.
s 552(b)(7)(D) (1976), quoted in text supra at note 20. In Lesar v.
Department of Justice, supra note 22, we indicated that the agency may
be required to demonstrate that withheld information was compiled in the
course of a legitimate investigation of that type. See Lesar v.
Department of Justice, supra note 22, 204 U.S.App.D.C. at 220, 636 F.2d at
492. Further guidance may be forthcoming from the Supreme Court since
certiorari was recently granted in a case involving a distinct but related
question. See Abramsom v. FBI, supra note 29 (certiorari granted on
question whether information compiled for law enforcement purposes and
privileged from disclosure under Exemption 7(C) loses its exempt status
when incorporated into records compiled for purposes other than law
enforcement). We need not address that issue in this case, however, since
the Church has not challenged the legitimacy of USNCB's purposes in
requesting the information concerning the Church from Interpol.
III. RETRIEVAL OF THE DOCUMENTS FROM INTERPOL HEADQUARTERS
(3) The Freedom of Information Act empowers federal courts to compel
disclosure of agency records improperly withheld, but does not confer authority
upon the courts to command agencies to acquire a possession or control of
records they do not already have. This principle was firmly established by the
Supreme Court's recent decision in Kissinger v. Reporters Committee for Freedom
of the Press,[FN37] in which the Court held that an agency could not be
required to undertake retrieval of documents removed-even though arguably
improperly-from its custody. The materials in question were notes of
Kissinger's telephone conversations during his tenure as Secretary of State and
Assistant to the President for National Security Affairs. Kissinger had taken
the documents with him when he left office, and the legality of their removal
was open to question.[FN38] Despite the fact that the agency might have been
able to regain possession of the documents by bringing suit against Kissinger
pursuant to specific authorization granted by the Federal Records Act,[FN39]
the Court held that it could not be required to do so.[FN40] The Court
reasoned that "Congress did not mean that an agency improperly withholds a
document which has been removed from the possession of the agency prior to the
filing of the FOIA request. In such a case, the agency has neither the custody
nor control necessary to enable it to withhold." [FN41]
FN37. Supra note 17.
FN38. 445 U.S. at 146-147, 100 S.Ct. at 966-967, 63 L.Ed.2d at 267.
FN39. 44 U.S.C. s 3106 (1976).
FN40. 445 U.S. at 150, 100 S.Ct. at 968-969, 63 L.Ed.2d at 281.
FN41. Id. at 150-151, 100 S.Ct. at 969, 63 L.Ed.2d at 281.
(4) In the case at bar, the District Court ruled that Kissinger was
inapposite because, in its view, USNCB and Interpol are *1164 **345 not
entities independent of each other. The court took the position that USNCB was
required to retrieve the sought-after documents from Interpol under the FOIA
section providing for search and collection of "the requested records from
field facilities and other establishments that are separate from the office
processing the request." [FN42] We do not agree with that rationale. Although
USNCB is an affiliate of Interpol, it serves only as the United States liaison
with the organization; it is neither a branch nor an agent of Interpol. This
characterization is in accord with Sami v. United States,[FN43] where we
held that "USNCB act(s) exclusively as an agent of the national government
which created, staffed, financed and equipped it," [FN44] and that therefore
the presence of USNCB in the District of Columbia was not enough to establish a
predicate for personal jurisdiction of the District Court over Interpol.[FN45]
FN42. Decision on Reconsideration, supra note 14, 490 F.Supp. at
151, citing 5 U.S.C. s 552(a)(6)(B) (1976). In cases where records are
located in field facilities the agency is permitted more time to produce
the sought-after materials. 5 U.S.C. s 552(a)(6)(B) (1976).
FN43. Supra note 4.
FN44. Id. at 178, 617 F.2d at 760.
FN45. Id. But cf. Steinberg v. Interpol, supra note 3.
The same reasoning applies full force in the instant case. If USNCB is not
sufficiently related to Interpol to subject the latter to the jurisdiction of
the District Court, surely Interpol is a third party in the eyes of Kissinger.
In sum, we agree with the Government that "(t)he relationship of the USNCB to
Interpol is ... like that of the United States to the United Nations. Although
a member of the organization, the USNCB is not Interpol." [FN46] Consequently,
we disapprove the District Court's order requiring USNBC to retrieve and index
the documents already forwarded to Interpol.
FN46. Brief for Appellants at 15. We decline to accept the Church's
argument that the Government's retrieval of some Interpol documents
precludes USNCB from refusing to attempt to obtain the rest.
For the reasons set forth, the District Court's orders appealed from are
reversed, and the case is remanded for further proceedings consistent with this
opinion.[FN47]
FN47. As counsel for the Government acknowledged at oral argument, one
question the District Court must determine on remand is whether or not
Interpol actually did furnish the requested information to USNCB in
confidence. The Government has suggested that the Interpol constitution
and at least one United Nations General Assembly resolution may be relevant
to this question, as would the affidavit of USNCB personnel asking for the
information.
We also pause to point out that we intend no comment one way or the other
on the sufficiency of the affidavits or Vaughn index provided to the
District Court by the Government. The court indicated that the Government
had been severely deficient in its responsibilities both with respect to
the affidavits and the indices submitted. Our decision in this case is
limited strictly to the three legal questions presented for review.
Contrary to the Church's contentions, we find no basis for extending our
review to an examination of the affidavits and indices before the District
Court. Whether or not summary judgment on the Exemption 7(D) issue
ultimately may be granted in favor of either party is for the District
Court to decide in the first instance.
So ordered.