628 F. 2d 179 - Common Cause v. National Archives and Records Service

Pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552 (1976), Common Cause seeks from the National Archives and Records Service certain documents and memoranda compiled by the Watergate Special Prosecution Force (WSPF).1 The documents and memoranda sought are those which reveal the identities of candidates for federal office to whom nineteen named corporations have admitted making or have been alleged to have made unlawful campaign contributions during the period 1968-73.2

The FOIA request filed by Common Cause was granted with respect to certain contributions of each of the corporations, for the given reason that the information had already been publicly disclosed through judicial proceedings or agency filings.3 Information with respect to other contributions was withheld, however, because in the opinion of WSPF, disclosure "might subject the alleged recipients to embarrassment and public obloquy without the benefit of formal judicial proceedings." App. 9. Denial of access was grounded in the FOIA's exemption for law enforcement investigatory records whose disclosure would constitute an "unwarranted invasion of personal privacy," 5 U.S.C. § 552(b)(7)(C) (1976) (hereinafter 7(C)).4

The district court agreed with WSPF, and on motion of appellee entered summary judgment in appellee's favor on the basis of 7(C), dismissing Common Cause's complaint for declaratory and injunctive relief. After reviewing the record we find that genuine issues of material fact preclude the entry of summary judgment at this point. Accordingly, we vacate the judgment below and remand for further proceedings.

According to the original response to the Common Cause request, the information withheld derives from accounts of witnesses given in confidence upon the assurance by the WSPF "that (such) information could be provided in confidence unless needed in a formal judicial proceeding initiated by this Office (the WSPF)." App. 9. Most of the nineteen corporations with respect to which information was sought had been charged with criminal conduct under a special policy announced by the WSPF on October 17, 1973. As described in the 1975 Report of the WSPF, that policy provided that if corporate officers had made voluntary disclosure of corporate contributions,

the corporation would be charged with violating Section 610 of Title 18 of the U.S. Code, which prohibits corporate contributions, and the primarily responsible corporate officer would be charged under the same statute with consenting to the making of such a contribution. The officer's cooperation in bringing the violation to WSPF's attention would be reflected in a one-count misdemeanor charge of "nonwillful" consent, as distinct from the felony of "willful" consent, and in a decision not to charge other officers or include additional counts. Variations of this pattern would be based on unusual degrees of cooperation, on obstructive conduct, or on other unique circumstances.

After filing its complaint in district court, Common Cause attempted to discover the nature of the material withheld; but this line of discovery was cut short when, pursuant to a motion filed together with the motion for summary judgment, a protective order was entered.6

Thus, apart from the information which was given in the original FOIA response, the only description of the materials sought which was available to appellant or to the court was provided by an affidavit of former Special Prosecutor Charles Ruff.7 The affidavit, which was submitted in support of appellee's motion for summary judgment, stated:

Documents, correspondence, memoranda or other writings in the file of the WSPF responsive to plaintiff's request but which were not provided to plaintiff originated either in grand jury proceedings or in office interviews of, or letters from, witnesses or their attorneys.

The names of Federal candidates and the amount of the alleged contributions, in most instances, represent only the recollection of corporate officials and are unsupported and uncorporated (sic). Similarly, the documents sought by plaintiff do not reflect whether a contribution, if, in fact, given, was received by the Federal candidate, a member of his staff or a political committee operating in his behalf.

No federal candidate whose name appears on documents responsive to plaintiff's request has been prosecuted for the knowing receipt of a corporate contribution. Similarly, none of the information sought by plaintiff has been subjected to the scrutiny of a formal judicial proceeding.

. . . Conduct investigated by the WSPF carries with it an aura of political corruption and criminality not otherwise attendant. The release to plaintiff of the names of Federal candidates whose names have not previously been disclosed, either in a charging instrument or in proceedings initiated by another Federal agency, may subject those individuals to public embarrassment and ridicule by linking them to a criminal investigation conducted by the WSPF with the attendant adverse inferences to be drawn therefrom when no such inferences are warranted.

Those persons whose names are released by the prosecutor or from the prosecutor's files may be required to defend conduct for which no criminal charges have been brought and which has not been subjected to the rigors of a judicial proceeding.

Plaintiff has been denied access to these documents on the basis of 5 U.S.C. § 552(b)(7)(C).

App. 19-20.

On the basis of this affidavit, the district court granted appellee's motion for summary judgment. Recognizing that exemption 7(C) is "to be applied using a de novo balancing test, weighing the privacy interest and the extent of the invasion thereto against the public interest in disclosure,"8 the district judge nonetheless found the Ruff affidavit dispositive, concluding from it that the documents withheld were "compiled from the recollection of (corporate officials) often years after the possible contribution" and that the information they contain "has not been verified but is unsubstantiated." App. 95. Because (1) "the release of names of alleged recipients could give rise to an implication of criminality," (2) "the resulting harm to the individual could be great," and (3) "the persons involved in the present case have never been prosecuted for any . . . crime, nor will they ever be,"9 the trial judge found that disclosure of the kinds of materials described in the Ruff affidavit would constitute an "unwarranted invasion of personal privacy."

Common Cause argues, inter alia, that disputed areas of fact remain; principally the reliability of the information contained in the withheld documents and the likelihood of any harm to the recipients named therein. The organization contends that both factors are relevant and necessary to the court's de novo determination whether an "unwarranted invasion of privacy" would result from disclosure.

The government's counter-arguments boil down to a claim that disclosure of information compiled for criminal investigatory reasons which identifies persons who are not subsequently charged with crime or otherwise publicly associated with the events investigated will result in virtually every case in an "unwarranted invasion of personal privacy."10 Relying on the Ruff affidavit, the government stresses the inconclusiveness of the information provided by witnesses in the documents at issue, asserting that it is in most instances unsupported and uncorroborated and pointing out that the documents often do not reflect whether the alleged contribution was actually received by the candidate and if so by or through whom.11

We do not believe that summary judgment was appropriate at this juncture in the proceeding. Although we acknowledge good policy reasons for nondisclosure under 7(C) of the identities of persons investigated but never subsequently prosecuted for crimes, we are not prepared to state this as the rule for every case and we do not know enough about the documents at issue here to make any more refined ruling than that.12

It is true that several courts have approved nondisclosure of the names of the unindicted targets of investigation under the 7(C) exemption,13 but this case presents some special circumstances which have provoked different results in cases in our own district court. Without suggesting that the presence of these circumstances will always or even usually tip the balance in favor of disclosure under 7(C), we mention two. First, the individuals whose privacy interests are argued here were candidates for federal office, not private citizens. As such they may have been "public figures" with less privacy interest than others in information relating to their candidacies.14

Second, the information sought about them concerned campaign contributions, contributions which were then and are now required by law to be reported publicly.15 According to one district court, "the Federal Corrupt Practices Act disclosure requirements (16 strip contributors and recipients equally of whatever cloak of privacy their relationship would have had in the statute's absence." Congressional News Syndicate v. United States Department of Justice, 438 F.Supp. 538, 543 (D.D.C.1977). Accord, Fund for Constitutional Government v. National Archives and Records Service, 485 F.Supp. 1 (D.D.C.1978), modified, (D.D.C. Apr. 25, 1979) (ordering release in accord with Congressional News of information about campaign contributions "regarding persons who actually violated the (Federal Corrupt Practices) Act" or which involve "possible culpability" under that Act).

The district court here seemed to distinguish the Congressional News decision (never appealed by the government) on the ground that the "Townhouse Operation" ledger sheets listing contributors and recipients there disclosed,17 were prepared by the investigatory target for its own purposes rather than by the investigators for purposes of the investigation.18

The government employs this distinction in the service of its own argument concerning the reliability of the information contained in the materials. Independently prepared materials, it argues, are more akin to the public reports required by law, and therefore more reliable, than narrative accounts of the witnesses who may have been motivated by assurances of lenient treatment. In fact, the district court appeared to place great store in the uncorroborated nature of the accusations and did not repudiate the Congressional News rationale requiring disclosure of certain information concerning campaign contributions.

For precisely that reason we believe that appellant was entitled to find out more about the alleged unreliability of the information sought. Common Cause asserts that the information was provided under oath and subject to perjury sanctions and that in some cases the disclosures may have been made on advice of counsel.19 We note also that the one staff memorandum released showed that the WSPF investigator there involved had demanded and was supplied with corroboration of the information provided by a corporate officer. This procedure may well have been followed in other instances.

Passage of time between the events and their disclosure to the WSPF investigators was also mentioned by the trial judge as a factor indicating unreliability, but this factor too must have varied from witness to witness, since the investigation was commenced in 1973 and covered events from 1968 to 1973. The point is that some of the information may be just as documented or reliable as the ledgers in Congressional News ; we simply do not know. We think a determination of the unreliability of the requested information requires more information about the nature of the materials withheld: e. g., the directness or indirectness of the informant's knowledge, the recency or remoteness of the event, and the nature and extent of corroboration or lack thereof. Appellant's first argument concerning disputed issues of fact is thus well taken.

Appellant's second argument concerning disputed issues of fact points to the parties' differing assessments of the actual harm which disclosure would inflict. We are uncertain of the precise relevance of this factor to disclosure under 7(C).

The material already disclosed reveals a wide range of recipients, amounts and media of contribution, covering all parts of the political spectrum and involving both incumbents and contenders, successful candidates and also-rans, currently active figures and political retirees. However, the extent to which the "warrant" for disclosure should depend upon such factors is unclear. We think there is at least an analytic line to be drawn between damage to a candidate's reputation and injury (caused by such damage) to that candidate's present or future political career. Obviously, the extent of harm to a political career would vary with the person's current status as well as with the nature and circumstances of the alleged contribution; but one may well assume that any taint would do some harm to an alleged recipient's reputation.

Moreover, circumstances or allegations which suggest high culpability may factor into both sides of the privacy balance in such a way that their presence or absence would make little difference to the outcome; that is, the more culpable the behavior suggested by the circumstances or allegations revealed, the more damaging the disclosure to the candidate's reputation, but for the same reason, the public interest in having the information disclosed might be greater.20 We do not intend to conclude the issue, however, and leave to the district court as an initial matter the determination whether and to what extent factors bearing upon potential "harm" may be pursued through discovery or should enter into a judgment of the propriety of disclosure under 7(C).

Discovery can be controlled by the trial judge or magistrate to avoid both undue prolongation of the case and premature disclosure of the very material sought to be protected. It could be that a more particularized affidavit or an annotated Vaughn index21 would be sufficient for the trial judge to strike the proper balance. If not, the trial judge may, of course, consider the possibility of in camera examination.22

Nondisclosure of some or all of the documents might be justified, but we cannot and do not decide that now. We remand to permit presentation to the trial judge of additional facts concerning the nature and reliability of the requested information contained in the materials withheld and concerning other factors deemed relevant by the trial judge to the balancing required by 7(C).23 See Weisberg v. United States Department of Justice, 543 F.2d 308 (D.C. Cir. 1976).

Vacated and Remanded.