# Michael Alan Crooker v. Bureau of Alcohol, Tobacco & Firearms

> Court of Appeals for the D.C. Circuit · December 16, 1981 · 670 F.2d 1051

URL: https://www.frixlaw.com/law-library/cases/399388

## Case

- **Full name:** Michael Alan CROOKER, Appellant, v. BUREAU OF ALCOHOL, TOBACCO & FIREARMS, Et Al.
- **Court:** Court of Appeals for the D.C. Circuit
- **Decided:** December 16, 1981
- **Citations:** 670 F.2d 1051; 216 U.S. App. D.C. 232
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Robinson, Wright, Tamm, MacKinnon, Robb, Wilkey, Wald, Mikva, Edwards, Ginsburg, Exemption, History, Foia, Language, Senate, House, Intent, Conclusions, Precedent, Law, Circuits, Relying, Disposition, Vii, Conclusion
- **Cited by:** 271 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled by Milner v. Department of the Navy, 179 L. Ed. 2d 268 (2011).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/399388

## How later opinions describe it (automated extraction)

- holding that although government could rely on an exemption it raised for the first time in the district court, it could not do so for the first time in the appellate court because otherwise there would be prejudice to requesting party who had had no opportunity to challenge a…
- describing “predominantly internal” as information that is “designed to establish rules and practices for agency personnel, i.e., law enforcement investigatory techniques,” “involves no ‘secret law’ of the agency,” and “would risk circumvention of agency regulations” if disclosed

## Opinion text

670 F.2d 1051
216 U.S.App.D.C. 232 , 7 Media L. Rep. 2411
Michael Alan CROOKER, Appellant,
v.
BUREAU OF ALCOHOL, TOBACCO & FIREARMS, et al.
No. 80-1278.
United States Court of Appeals,
District of Columbia Circuit.
Argued May 28, 1981.
Decided Dec. 8, 1981.
As Amended Dec. 16, 1981.
Katherine A. Meyer, with whom David C. Vladeck and Alan B. Morrison, Washington, D.C., were on the brief for appellant.
Michael Kimmel, Atty., Dept. of Justice, with whom Thomas S. Martin, Acting Asst. Atty. Gen., Charles F. C. Ruff, U. S. Atty. and Leonard Schaitman, Atty., Dept. of Justice, Washington, D.C., were on the brief for appellees. John A. Terry, Michael W. Farrell and Barry M. Tapp, Asst. U. S. Attys., Washington, D.C., also entered appearance for appellees.
Victor H. Kramer and Douglas L. Parker, Washington, D.C., were on the brief for amicus curiae, Jordan and Wasserstrom urging affirmance.
Before ROBINSON, Chief Judge, and WRIGHT, TAMM, MacKINNON, ROBB, WILKEY, WALD, MIKVA, EDWARDS and GINSBURG, Circuit Judges.
1
Opinion for the court filed by Circuit Judge EDWARDS. *
2
Concurring opinions * filed by Circuit Judge MacKINNON, Circuit Judge MIKVA and Circuit Judge GINSBURG.
3
Dissenting opinion filed by Circuit Judge WILKEY.
4
TABLE OF CONTENTS
Page
I. BACKGROUND ............................................... 1053
II. EXEMPTION 2 AND ITS LEGISLATIVE HISTORY .................. 1055
A. The Structure of FOIA ................................. 1055
B. The Language and Legislative History of Exemption 2 ... 1056
1. FOIA in the Senate ................................. 1057
2. FOIA in the House .................................. 1059
III. OTHER INDICATIONS OF CONGRESSIONAL INTENT ................ 1061
A. Section (a)(2)(C) ..................................... 1062
B. Section (b)(7)(E) ..................................... 1063
IV. CONCLUSIONS TO BE DRAWN FROM THE LEGISLATIVE HISTORY ..... 1065
V. THE CASE LAW ON EXEMPTION 2 .............................. 1066
A. Supreme Court Precedent ............................... 1066
B. D.C. Circuit Case Law ................................. 1066
C. Case Law in Other Circuits ............................ 1077
1. Cases Relying on Section (a)(2)(C) ................. 1077
2. Cases Relying on Exemption 2 ....................... 1071
VI. DISPOSITION OF THE PRESENT CASE .......................... 1072
VII. CONCLUSION ............................................... 1075
EDWARDS, Circuit Judge:
5
In Department of the Air Force v. Rose, 425 U.S. 352 , 96 S.Ct. 1592 , 48 L.Ed.2d 11 (1976), the Supreme Court left undecided the question whether Exemption 2 of the Freedom of Information Act (FOIA) 1 permits a federal agency to withhold documents whose "disclosure may risk circumvention of agency regulation." 2 In the present case we are presented squarely with that question.
6
This appeal involves a claim by the Government that portions of an agent's training manual of the Bureau of Alcohol, Tobacco & Firearms (BATF) should not be released pursuant to FOIA since to do so "would benefit those attempting to violate the law and avoid detection." 3 Careful analysis of the statutory language of FOIA, its legislative history, and the case law leads us to conclude that Congress enacted Exemption 2 to shield from disclosure materials such as the portions of the BATF manual at issue here. Accordingly, we hold that since the document for which disclosure is sought meets the test of "predominant internality," and since its disclosure significantly risks circumvention of federal statutes or regulations, the document is exempt from disclosure under Exemption 2.
7
Nothing in this decision should be taken to question the result reached in our previous decision in Jordan v. United States Dep't of Justice, 591 F.2d 753 (D.C.Cir.1978) (en banc). While our decision may appear inconsistent with one of the bare legal holdings in Jordan, see id. at 771 , we nevertheless believe that from the facts as presented in Jordan, the result in that case would be identical under the test we announce today. It is the rationale in Jordan we reject insofar as it suggests that virtually all law enforcement manuals must be disclosed under FOIA.
I. BACKGROUND
8
In mid-1978 Michael Crooker filed a FOIA request with the Bureau of Alcohol, Tobacco & Firearms, seeking a copy of an agency manual entitled "Surveillance of Premises, Vehicles and Persons-New Agent Training." Complaint P 5, located in Record (R.) at 1. BATF initially denied Crooker's request in its entirety; however, following an administrative appeal, G. R. Dickerson, the Director of BATF, ordered the release of the manual except for portions of pages eight through twenty-nine. In his affidavit to the District Court, Director Dickerson wrote that "(t)he deletions which appear in the document released to Mr. Crooker are all based on 5 U.S.C. §§ 552 (a)(2)(C) and (b)(2) (Exemption 2)," 4 and that portions of the manual were withheld because their release "would benefit those attempting to violate the law and avoid detection." Affidavit of G. R. Dickerson, R. at 10. 5
9
After receiving Director Dickerson's decision on his administrative appeal, Crooker filed a pro se complaint in the District Court seeking to compel BATF officials to produce the entire BATF manual. Complaint P 15, R. at 1. Crooker subsequently moved for summary judgment, but did not support his motion with any affidavits or other documents. 6
10
In response, the Government filed a "Motion to Dismiss or, in the Alternative, for Summary Judgment." R. at 10. In support of its motion, the Government included Dickerson's affidavit, as well as original and updated versions of the BATF manual for in camera inspection. The Government's "Statement of Material Facts As to Which There Is No Genuine Issue" consisted solely of the first eight paragraphs of Dickerson's affidavit. See R. at 10.
11
Crooker responded to the Government's motion by filing a memorandum of points and authorities, and renewing his own plea for summary judgment. See Reply Memorandum, R. at 12. Crooker submitted no affidavits with his Reply Memorandum, and he made no attempt to contest the assertion in Dickerson's affidavit that release of the entire BATF manual "would benefit those attempting to violate the law and avoid detection." Rather, Crooker argued that "we are dealing with a manual that directly affects the public at large: surveillance of members of the public by federal authorities. The citizenry certainly has a significant interest in the manner in which they are spied on by agents of the federal government." Reply Memorandum, R. at 12. 7
12
After examining the BATF manual in camera, the District Court granted the Government's motion for summary judgment and denied Crooker's motion for summary judgment as well as his request for attorney's fees and costs. In its brief order, the court held the material to be protected from disclosure under Exemption 2, citing this court's decision in Cox v. United States Dep't of Justice, 601 F.2d 1 (D.C.Cir.1979). See Order, R. at 13.
13
Crooker appealed the District Court's decision, 8 and a three-judge panel of this court decided without argument on November 12, 1980, that, under the holding of Jordan v. United States Dep't of Justice, 591 F.2d 753 (D.C.Cir.1978) (en banc), the withheld portions of the BATF manual were not protected from disclosure by Exemption 2. On January 30, 1981, a majority of the full court of appeals voted to vacate the panel opinion and rehear the case en banc. The only issue on appeal before this court is whether certain portions of the BATF manual-"Surveillance of Premises, Vehicles and Persons-New Agent Training"-are exempt from disclosure under Exemption 2 of FOIA. 9
II. EXEMPTION 2 AND ITS LEGISLATIVE HISTORY
A. The Structure of FOIA
14
Congress enacted the Freedom of Information Act, 5 U.S.C. § 552 (1976 & Supp. III 1979), in 1966 to replace section 3 of the Administrative Procedure Act, finding the existing statute to be "full of loopholes which allow agencies to deny legitimate information to the public." S.Rep.No.813, 89th Cong., 1st Sess. 3 (1965). It is clear that FOIA was designed to embody "a general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language and to provide a court procedure by which citizens and the press may obtain information wrongfully withheld." Id.
15
As presently enacted, FOIA contains three distinct subsections setting forth the circumstances under which an agency must release information to the public. 10 Section (a)(1) covers information that must be published in the Federal Register, and section (a)(2) covers materials that must be made "available for public inspection and copying ... unless the materials are promptly published and copies offered for sale." Section (a)(3), under which Crooker requested the BATF manual, provides:
16
Except with respect to the records made available under paragraphs (1) and (2) of this subsection, each agency, upon any request for records which (A) reasonably describes such records and (B) is made in accordance with published rules ... shall make the records promptly available to any person.
17
5 U.S.C. § 552 (a)(3) (1976).
18
Section (b) of the FOIA sets forth nine exemptions to disclosure. 11 In particular, section (b)(2), commonly called Exemption 2, provides that:
19
(b) This section (FOIA) does not apply to matters that are-
20
(2) related solely to the internal personnel rules and practices of an agency.
21
Id. § 552(b)(2). Whether or not portions of the BATF manual are exempt from disclosure depends on the scope of Exemption 2. To answer that question, we examine the language and legislative history of Exemption 2.
22
B. The Language and Legislative History of Exemption 2
23
Resort to the legislative history of a statutory provision is not necessary when the meaning of the provision is plain from its language. See Markham v. Colonial Mortgage Service Co., Associates, Inc., 605 F.2d 566, 569 (D.C.Cir.1979). In this case-at least at first blush-the BATF manual appears to be encompassed by the literal language of Exemption 2. Nonetheless, we recognize that other interpretations of the brief language of Exemption 2 are possible. Accordingly, after examining the language of Exemption 2, we will turn to its legislative history to determine the underlying congressional intent.
24
In Jordan v. United States Dep't of Justice, 591 F.2d 753, 763 (D.C.Cir.1978) (en banc), this court held that the phrase "personnel rules and practices" in Exemption 2 refers only to "pay, pensions, vacations, hours of work, lunch hours, parking etc." Yet, in cases similar to the present one, involving requests for disclosure of a BATF "Raids and Searches" manual, the Second and Ninth Circuits have come to the opposite conclusion. In denying disclosure, these courts have held that, "(f)rom its wording, (Exemption 2) would appear to apply to the contested portions of the (BATF) manual." Hardy v. Bureau of Alcohol, Tobacco & Firearms, 631 F.2d 653, 655 (9th Cir. 1980). See Caplan v. Bureau of Alcohol, Tobacco & Firearms, 587 F.2d 544, 546 (2d Cir. 1978). We agree with the conclusions reached by the Ninth and Second Circuits regarding the meaning to be attributed to the statutory language. We thus hold that the words "personnel rules and practices" encompass not merely minor employment matters, but may cover other rules and practices governing agency personnel, including significant matters like job training for law enforcement personnel.
25
The word "internal" in Exemption 2 plainly limits the exemption to those rules and practices that affect the internal workings of an agency. "Related solely to" limits the exemption to those matters that are truly internal, and not of legitimate public interest. 12 In his concurring opinion in Vaughn v. Rosen (Vaughn II), 523 F.2d 1136 (D.C.Cir.1975), Judge Leventhal aptly observed that:
26
In some attenuated sense, virtually everything that goes on in the Federal Government, and much that goes on outside of it, could be said to be "related" through some chain of circumstances to the "internal personnel rules and practices of an agency." The potentially all-encompassing sweep of a broad exemption of this type undercuts the vitality of any such approach. The legislature added the qualification that limited the exemption to items "relating solely" to internal personnel practices. Various opinions have relied on "solely" as a means of limiting the range of the (b)(2) exemption. That phrase too is open to an all-or-nothing interpretation; there are few events in our society today that occur without so much as a tiny ripple effect outside their area of prime impact. Thus pushed to their logical ends, "relating" is potentially all-encompassing while "solely" is potentially all-excluding. It seems unlikely that Congress intended either extreme, and that "solely" in this context has to be given the construction, consonant with reasonableness, of "predominantly."Id. at 1150-51 (Leventhal, J., concurring) (footnote omitted). Pursuing this rationale in his concurring opinion in Jordan, Judge Leventhal, joined by Chief Judge Robinson, concluded that:
27
Exemption 2 is applicable where the document consists of internal instructions to such government officials as investigators and bank examiners. In such a case disclosure would permit circumvention of the law, and there is no substantial, valid external interest of the community at large in revelation. That composite presents a matter that involves solely internal personnel rules and internal practices of an agency for purposes of making Exemption 2 applicable.
28
Jordan v. United States Dep't of Justice, 591 F.2d at 783 (Leventhal, J., concurring).
29
We agree with this interpretation of the literal meaning of Exemption 2. Accordingly, we believe that the disputed portions of the BATF manual for new agents-setting forth law enforcement investigatory techniques-fall within the compass of Exemption 2.
30
Despite our conclusion regarding the reasonable interpretation to be given the language of Exemption 2, we recognize that other interpretations are plausible. Consequently, we look to the legislative history of the exemption to determine whether it is possible to find a congressional intent that is plainly contrary to the meaning that we ascribe to Exemption 2.
31
Exemption 2 was a part of the original FOIA enacted in 1966. Despite amendments to FOIA in 1967, 1974, 1976, and 1978, the language of Exemption 2 has remained unchanged. 13 Consequently, the principal sources of legislative history concerning the exemption are the congressional hearings, reports, and debates prior to the 1966 enactment of FOIA.
1. FOIA in the Senate
32
"Freedom of Information Act" bills were introduced in both the House and the Senate during the First Session of the Eighty-ninth Congress. 14 In mid-May 1965, the Senate held extensive hearings on its version of the new FOIA, S. 1160, receiving comments from numerous private groups and federal agencies. 15 As with an earlier version, S. 1666, which had been introduced and passed by the Senate in the previous Congress, 16 several federal agencies vigorously opposed passage of the bill. 17 The Senators themselves, however, made no comments on the witnesses' objections or on the scope of Exemption 2. 18 Consequently, the Senate hearings provide little enlightenment as to Congress' intent concerning Exemption 2. 19
33
The principal expression of the Senate's understanding of FOIA, and in particular Exemption 2, is found in the Senate Report, S.Rep.No.813, 89th Cong., 1st Sess. (1965). In the section outlining the purpose of the bill, the Senate Report identified the inadequacies of the existing section 3 of the Administrative Procedure Act, and claimed that the new bill would "establish a general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language." Id. at 3. But, the Report also took note of certain "cross-currents" explicitly enacted into the bill:
34
At the same time that a broad philosophy of "freedom of information" is enacted into law, ... (i)t is also necessary for the very operation of our Government to allow it to keep confidential certain material, such as the investigatory files of the Federal Bureau of Investigation.
35
Id. Thus, the Senate Report clearly recognized that the broad policy of full disclosure must be tempered in order to protect the "operation of our Government."
36
The Senate Report's description of Exemption 2 is brief, providing only a non-exclusive list of examples of matters exempt from disclosure:
37
Exemption No. 2 relates only to internal personnel rules and practices of an agency. Examples of these may be rules as to personnel's use of parking facilities or regulation of lunch hours, statements of policy as to sick leave, and the like.
38
Id. at 8. There is no additional discussion of Exemption 2 in the Senate Report, and there was absolutely no debate in the Senate on S. 1160. 20
2. FOIA in the House
39
During the First Session of the Eighty-ninth Congress, several bills to amend section 3 of the APA were introduced in the House. The House Subcommittee on Foreign Operations and Government Information held hearings on these bills from March 30 to April 5, 1965, nearly a month and a half before the Senate hearings on S. 1160. 21 The principal House measure under consideration was H.R. 5012, 22 which provided in part:
40
(c) This section does not authorize withholding information from the public or limiting the availability of records to the public except matters that are ... (2) related solely to the internal personnel rules and practices of any agency.
41
House Hearings on H.R. 5012, supra note 21, at 3. In all material respects the language of Exemption 2 in H.R. 5012 was identical to the language in the Senate bill that later became law. 23
42
The House hearings unequivocally reveal that Exemption 2 was intended to cover investigatory materials. During an exchange involving Congressman Moss, the principal sponsor of the bill and chairman of the subcommittee holding the hearings, Mr. Kass, counsel to the subcommittee, and Mr. Schlei, Assistant Attorney General, Congressman Moss said, in response to Mr. Schlei's objection that Exemption 2 "did not go far enough:"
43
What (Exemption 2) was intended to cover was instances such as the manuals of procedure that are handed to an examiner-a bank examiner, or a savings and loan examiner, or the guidelines given to an FBI agent.
Id. at 29. 24
44
Several months after completion of the Moss hearings on H.R. 5012, the House Committee on Government Operations took up consideration of S. 1160, 25 and reported the bill without amendment on May 9, 1966. See 112 Cong.Rec. 10053 (1966). The House Report on S. 1160, H.R.Rep.No.1497, 89th Cong., 2d Sess. 3 (1966), reiterates the general view expressed in the Senate Report that section 3 of the APA "has become the major statutory excuse for withholding Government records from public view."
45
In its description of Exemption 2, the House Report stated:
46
2. Matters related solely to the internal personnel rules and practices of any agency: Operating rules, guidelines, and manuals of procedure for Government investigators or examiners would be exempt from disclosure, but this exemption would not cover all "matters of internal management" such as employee relations and working conditions and routine administrative procedures which are withheld under the present law.
47
Id. at 10. Plainly, the House Report's brief description of Exemption 2 differs from the Senate Report's description in important respects.
48
This deviation has been discussed in other opinions, 26 and it comes to this: The Senate Report expressly states that documents concerning minor matters of employment-like sick leave policy-are exempt from disclosure, whereas the House Report indicates that such matters should be released. The so-called contradiction between the House and Senate Reports, however, exists only with respect to the exemption of trivial employment matters. The House Report's statement that Exemption 2 permits exemption of more substantive matters-such as "manuals of procedure for Government investigators or examiners"-is uncontroverted by the Senate Report. 27
49
Another important source of congressional intent is the House debate on S. 1160. 28 Congressman Moss, who had introduced similar legislation (H.R. 5012) in the House, and had conducted hearings on S. 1160, carefully noted the cross-currents of congressional concern expressed in the bill:
50
(T)he committee has, with the utmost sense of responsibility, attempted to achieve a balance between a public need to know and a necessary restraint upon access to information in specific instances. The bill lists nine categories of Federal documents which may be withheld to protect the national security or permit effective operation of the Government.
51
112 Cong.Rec. 13641 (1966) (remarks of Rep. Moss). Representative Dole also spoke in support of S. 1160, indicating his belief that
52
the bill takes into consideration the right to know of every citizen while affording the safeguards necessary to the effective functioning of Government.
53
Id. at 13655 (remarks of Rep. Dole). Representative Gallagher was even more specific:
54
I would like to reiterate that the bill also prevents the disclosure of other types of "sensitive" Government information such as ... income tax auditors' manual.
55
Income tax auditors' manual would be protected under No. 2-"related solely to internal personnel rules and practices."
56
Id. at 13659 (remarks of Rep. Gallagher).
57
From these brief, but uncontradicted, statements in the House debate on S. 1160, we can see that the members of the House recognized that the unrestricted release of government documents might interfere with the "effective operation of the Government," and that the nine exemptions were included in S. 1160 to prevent such interference. More specifically and importantly, supporters of S. 1160 were not challenged in their claim that government investigatory manuals were protected under Exemption 2.
58
We believe that the remarks from the debate are highly instructive. Particularly because in the present case Crooker has not disputed that release of the BATF manual will help individuals to evade the law, we are loathe to construe the statute in a way contrary to the express feelings of one house, on a point on which the other house made no comment.
59
III. OTHER INDICATIONS OF CONGRESSIONAL INTENT
60
The legislative history of Exemption 2 is not the only source of congressional intent regarding its scope. Indeed, it is
61
fundamental that a section of a statute should not be read in isolation from the context of the whole Act, and that in fulfilling our responsibility in interpreting legislation, "we must not be guided by a single sentence or member of a sentence, but (should) look to the provisions of the whole law, and to its object and policy."
62
Richards v. United States, 369 U.S. 1, 11 , 82 S.Ct. 585, 591 , 7 L.Ed.2d 492 (1962) (footnote omitted). 29 As this court stated in Certified Color Mfrs. Ass'n v. Mathews, 543 F.2d 284, 296 (D.C.Cir.1976), "(i)t is a fundamental rule of statutory construction that legislative enactments be construed in a manner designed to give effect to all parts while avoiding a result contrary to the apparent intent of Congress." 30
63
As we have seen above, Congress believed that FOIA resolved two crucial but potentially conflicting interests: the right of the citizenry to know what the Government is doing, and the legitimate but limited need for secrecy to maintain the effective operation of Government. Two other subsections of FOIA, section (a)(2)(C) and section (b)(7)(E) (Exemption 7(E) ), reinforce the conclusion that Congress was aware of the need to protect investigative techniques from disclosure, and that Congress took action to prevent their disclosure. In short, these provisions reveal that Congress did not intend that FOIA would frustrate law enforcement efforts. While the congressional purpose behind these two sections is not dispositive to the question regarding Exemption 2, their inclusion in FOIA points to the conclusion that Congress believed that FOIA would not mandate release of materials containing law enforcement investigative techniques.
A. Section (a)(2)(C)
Section (a)(2)(C) provides:
64
(2) Each agency, in accordance with published rules, shall make available for public inspection and copying-
65
(C) administrative staff manuals and instructions to staff that affect a member of the public;
66
unless the materials are promptly published and copies offered for sale.
67
When S. 1160 was originally introduced in the Senate, the provision that was later to become section (a)(2)(C) 31 referred to "staff manuals" and not "administrative staff manuals." During Senate hearings on S. 1160, several witnesses expressed their fears that this language would mandate release of information that could damage or hinder law enforcement efforts. For example, Professor Kenneth C. Davis stated that the provision
68
goes too far and needs to be cut back. For instance, one who is investigated may be affected by instructions to the investigator about how to investigate, but some such instructions are properly confidential.
69
Senate Hearings on S. 1160, supra note 15, at 178 (statement of Kenneth C. Davis). The Securities and Exchange Commission, while declining to give an opinion on the scope of the provision, stated that
70
we fear its possible effect on our investigative and other enforcement activities. We agree that the public should have access to such materials as will facilitate compliance with the law and transactions with the agency. But disclosure of investigative techniques set out in staff training manuals, for example, would virtually provide a blueprint for evading the law to prospective violators.
71
Id. at 292 (Memorandum of the Securities and Exchange Commission to the Comm. on the Judiciary). The Department of Agriculture concurred:
72
The Department is strongly opposed to this provision. There are many types of staff manuals and instructions to staff that may affect members of the public but should not be published or made available for public inspection and copying. For example, staff manuals concerning investigation procedures or techniques to develop evidence of alleged violations of regulatory statutes ... may affect members of the public but they are internal in nature and should not be published or made available to the public.
73
Id. at 381 (Detailed Analysis of S. 1336 by the U. S. Dep't of Agriculture).
74
Although the members of the Senate subcommittee did not respond directly to these comments, the committee report recommended adding the word "administrative" to the expression "staff manual." See S.Rep.No.813, 89th Cong., 1st Sess. 1 (1965). In discussing the proposed amendment to S. 1160, the Senate Report stated that:
75
The limitation of the staff manuals and instructions affecting the public which must be made available to the public to those which pertain to administrative matters rather than to law enforcement matters protects the traditional confidential nature of instructions to Government personnel prosecuting violations of law in court, while permitting a public examination of the basis for administrative action.
76
Id. at 2.
77
The House Report explained in more detail the scope of the provision:
78
(A)n agency may not be required to make available those portions of its staff manuals and instructions which set forth criteria or guidelines for the staff in auditing or inspection procedures, or in the selection or handling of cases, such as operational tactics, allowable tolerances, or criteria for defense, prosecutions, or settlement of cases.
79
H.R.Rep.No.1497, 89th Cong., 2d Sess. 7-8 (1966), U.S.Code Cong. & Admin.News 1966, pp. 2418, 2424.
80
Clearly, one of the "cross-currents" apparent from reviewing section (a)(2) (C) and its legislative history is Congress' deep concern that manuals setting forth guidelines for auditing or inspection procedures should not be released to the public. Moreover, Congress acted specifically to prevent such a result, consistent with the secondary emphasis in the statute-that FOIA not be drafted so as to interfere with the effective operation of Government.
B. Section (b)(7)(E)
81
Similar indications of congressional intent are apparent from the 1974 amendments to FOIA. Following the Act's passage in 1966, it became clear to many members of Congress that a number of federal agencies were using Exemption 7 to block legitimate requests for information. 32 In response to the intransigence of these agencies, Congress revised Exemption 7 as a part of the 1974 amendments to FOIA.
82
As reported by the Senate Judiciary Committee, the original version of S. 2543, which later emerged as the 1974 legislation amending FOIA, left Exemption 7 intact. See S.Rep.No.854, 93d Cong., 2d Sess. (1974). 33 During the Senate debate, however, Senator Hart offered an amendment listing the specific circumstances under which a document would be exempt under Exemption 7. In part, his proposal provided that records need not be disclosed if they are:
83
(7) Investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would ... (D) disclose investigative techniques and procedures.
84
See 120 Cong.Rec. 17033 (1974). In this amendment, Senator Hart recognized the legitimate law enforcement need for withholding some materials from disclosure:
85
(T)he amendment would protect against the release of investigative techniques and procedures where such techniques and procedures are not generally known outside the Government.
86
Id. at 17034 (remarks of Sen. Hart).
87
Senator Kennedy, speaking in support of the amendment, made it clear that Senator Hart's addition was necessary to force courts to follow the original intent of Congress in enacting FOIA:
88
(W)hether or not this amendment is adopted, I would like to make it clear that I believe the courts have, in narrowly and mechanically interpreting the seventh exemption, strayed from the requirements and the spirit of the Freedom of Information Act .... I thus want the record to show that by accepting the Senator's amendment we will be reemphasizing and clarifying what the law presently requires.
89
Id. at 17034-35 (remarks of Sen. Kennedy) (emphasis added). After the debate, the Senate adopted Senator Hart's amendment and the entire bill.
90
The House, meanwhile, considered a similar bill, H.R. 12471. As reported out of committee, the House bill included no changes to Exemption 7. See H.R.Rep.No.876, 93d Cong., 2d Sess. (1974), U.S.Code Cong. & Admin.News 1974, p. 6267; 120 Cong.Rec. 6814 (1974) (remarks of Rep. Fascell) ("The pending legislation, therefore, does not change the language of eight of the nine exemptions.") The bill, as reported, was passed in the House.
91
The conference committee appointed to iron out the differences between the Senate and House bills 34 adopted the Senate amendment to Exemption 7 and added an additional provision, 35 see H.R.Rep.No.1380, 93d Cong., 2d Sess. 12 (1974), but its explanation of Exemption 7(E) adds little to the language of the amendment. 36 Both the House and the Senate passed the bill, as reported by the conference committee, which now included Senator Hart's amendments to Exemption 7. 37
92
Again, the legislative history of Exemption 7(E) is not dispositive of the issue before this court, but it is instructive. 38 Because Exemption 7(E) was not added to change FOIA but to "reemphasize and clarify" Congress' original intent, the 1974 Amendments provide valuable insight into Congress' intent when it enacted FOIA, and Exemption 2, in 1966.
93
IV. CONCLUSIONS TO BE DRAWN FROM THE LEGISLATIVE HISTORY
94
At this point in the discussion, it is appropriate to set forth certain critical conclusions distilled from the legislative history of FOIA. Clearly, FOIA was primarily envisioned as a workable disclosure statute that would eliminate the pervasive secrecy of the Federal Government. But our recognition of this explicit purpose should not obscure a secondary, but nevertheless fundamental, aspect of the bill-i.e. to exempt certain limited categories of documents from mandatory disclosure in order to protect individual rights and to permit the effective operation of the Government. In order to implement this secondary purpose, Congress included in FOIA nine exemptions from mandatory disclosure.
95
From the House, we have unequivocal statements in the hearings, the House Report, and the debate that Exemption 2 was intended to shield internal instructions to law enforcement agents from mandatory disclosure. 39 The Senate gives us less guidance since the Senators made no useful comments during the Senate hearings, and held no debate at all on FOIA. The Senate Report indicates that Exemption 2 covers minor employment matters, but it does not expressly limit the scope of Exemption 2 to such matters. Thus, the legislative history from the Senate and House is not contradictory as regards materials that would "aid in circumvention of the law." Instead the Senate was silent on this point, and the House stated that such materials would be exempt from mandatory disclosure.
96
Other provisions of FOIA also demonstrate the "cross-currents" of concerns that Congress hoped to resolve in FOIA. In both sections (a)(2)(C) and (b)(7) (E) (Exemption 7(E) ), Congress acted to block the production of materials that would result in the disclosure of investigatory techniques. In attempting to interpret FOIA as a consistent whole, we must recognize that these two sections are at least indicators of what Congress believed FOIA would do. It would be inconsistent to no small degree to hold that Exemption 2 would not bar the disclosure of investigatory techniques when contained in a manual restricted to internal use, but that Exemption 7(E) would exempt the release of such techniques if contained in an "investigatory record." We see no reason, absent some persuasive evidence in the legislative history, to attribute such confused motives to Congress.
97
Furthermore, upon reflection, it would appear that the Senate and House interpretations of Exemption 2 may be reconcilable. The Senate's concern in Exemption 2 was with matters so minor as to be of no genuine public concern, as opposed to "more substantial matters which might be the subject of legitimate public interest." Vaughn v. Rosen (Vaughn II), 523 F.2d at 1142 . The House, however, felt that certain substantial matters were not "the subject of legitimate public interest," notably investigatory techniques used by law enforcement agencies. From both houses, however, comes the common intent to use Exemption 2 to exempt from disclosure those internal personnel matters not "the subject of legitimate public interest."
98
This is not to say that it is up to the courts to decide what matters are of legitimate public interest. Congress has made the determination that except for certain specified materials, all government documents are of legitimate public interest. In the present case we are not deciding what is in the public interest. Rather, by application of the statutory language, and direct reference to the legislative history, we must determine what matters Congress sought to exempt from disclosure. It will not do to apply individual provisions of the statute woodenly, oblivious to Congress' intention that FOIA not frustrate law enforcement efforts. Rather it is our job to interpret the law as we believe Congress meant it to be read.
V. THE CASE LAW ON EXEMPTION 2
99
Several courts of appeals have considered whether to release documents similar to the BATF manual sought by Crooker in the present case. A review of these cases shows that each of these circuits, except for the District of Columbia Circuit, has refused to order the release of such materials. Some of these decisions have rested on Exemption 2, others on section (a)(2)(C).
A. Supreme Court Precedent
100
The starting point for most circuit court decisions on Exemption 2 is the Supreme Court's decision in Department of the Air Force v. Rose, 425 U.S. 352 , 96 S.Ct. 1592 , 48 L.Ed.2d 11 (1976). In Rose the respondents sought to obtain case summaries of honor and ethics hearings at the Air Force Academy. Although the District Court ruled that Exemption 2 protected the summaries from disclosure, the Supreme Court reversed, holding that the summaries must be released.
101
In its discussion of Exemption 2, the Supreme Court recognized the explicit contradiction in the House and Senate Reports concerning whether minor employment matters are exempt from disclosure. The Court concluded that, "in this regard," the Senate Report was the more authoritative. See id. at 367 , 96 S.Ct. at 1602 . But the Court was also careful to note the emphasis in the House Report on the availability of Exemption 2 to prevent the release of materials that would result in the disclosure of investigative techniques. In this regard, the Court wrote:
102
Those cases relying on the House, rather than the Senate, interpretation of Exemption 2, and permitting agency withholding of matters of some public interest, have done so only where necessary to prevent the circumvention of agency regulations that might result from disclosure to the subjects of regulation of the procedural manuals and guidelines used by the agency in discharging its regulatory function.... Moreover, the legislative history indicates that this was the primary concern of the committee drafting the House Report.
103
Id. at 364 , 96 S.Ct. at 1600 (citations omitted) (emphasis added). 40 Later in the opinion the Court repeated that it accepted the Senate interpretation of the exemption on minor employment matters in part "because we think the primary focus of the House Report was on exemption of disclosures that might enable the regulated to circumvent agency regulation." Id. at 366-67 , 96 S.Ct. 1601 -02. Finally, the Court noted:
104
In sum, we think that, at least where the situation is not one where disclosure may risk circumvention of agency regulation, Exemption 2 is not applicable to matters subject to such a genuine and significant public interest.
105
Id. at 369, 96 S.Ct. at 1603 (emphasis added).
106
Clearly, Rose left open the question that faces us in the present case. At the same time, it is equally clear that the Supreme Court considered as substantial the argument that Exemption 2 might be construed to cover internal agency materials where disclosure might risk circumvention of the law.
B. D.C. Circuit Case Law
107
The first significant case in this circuit dealing with the scope of Exemption 2 was Vaughn v. Rosen (Vaughn II), 523 F.2d 1136 (D.C.Cir.1975). In Vaughn II, the plaintiff had sought the release of "Evaluation of Personnel Management" reports, prepared by the Civil Service Commission, to provide advice to agencies on how to improve their personnel programs. After considering the conflict between the Senate and House Reports, the court of appeals concluded "that the Senate Committee Report is authoritative and that Exemption 2 exempts from disclosure only routine 'house-keeping' matters in which it can be presumed the public lacks any substantial interest." Id. at 1141 . The court believed that "the Senate Report indicates that the line sought to be drawn is one between minor or trivial matters and those more substantial matters which might be the subject of legitimate public interest." Id. at 1142 (emphasis added). As a consequence of its analysis, the court ordered the reports released.
108
Part of the rationale underlying the decision in Vaughn II is that FOIA is a broad disclosure statute, and that any uncertainty in interpreting the Act "requires us to choose that interpretation most favoring disclosure." Id. 41 Yet this interpretative approach may be too superficial, for it fails to take into account all of the "cross-currents" of concerns expressed by those members of Congress supporting the enactment of FOIA. 42
109
Judge Leventhal, who concurred separately in Vaughn II, considered the majority's analysis-that the Senate Report should be given greater weight than the House Report because the bill was passed first in the Senate-to be
110
a novel and totally unpersuasive canon of statutory construction .... The argument that the Senate Report was "available" to the House members is theoretical: The members of the House committee did have the Senate Report, but they departed from it.
111
Id. at 1148 . 43 Moreover, he believed that even if the Senate Report afforded more disclosure, and thus was "more in keeping with the overall purpose of disclosure(,) that does not answer questions about the construction of any particular provision." Id.
112
In considering Exemption 2, Judge Leventhal reasoned that it "apparently signified a determination that the public interest would not be furthered by a requirement of public disclosure of certain 'internal' matters." Id. at 1150 . Since, however, the documents sought in Vaughn II were neither solely nor even predominantly 44 related to the internal practices of an agency, he believed that they should be released.
113
In 1978, this court decided Jordan v. United States Dep't of Justice, 591 F.2d 753 (D.C.Cir.1978) (en banc ). 45 The plaintiff, Jordan, sought from the Justice Department two documents relating to guidelines for prosecutorial discretion. In an affidavit, the United States Attorney stated that release of these documents would permit individuals to "exploit these policies (of prosecutorial discretion) by committing crimes within these select categories, thereby escaping prosecution." 591 F.2d at 758 . 46 Examining the language of Exemption 2, the majority in Jordan held that the "(t)he Manual or Guidelines of the type at issue are simply not 'personnel' rules or practices," and that, therefore, "from the face of the statute ... the Guidelines at issue here are not within the specific language of Exemption 2." Id. at 763 . Apparently in partial justification of this holding, the majority opinion added that "Exemption 2 was not designed to protect documents whose disclosure might risk circumvention of agency regulation." Id. at 771 .
114
Regarding the legislative history of Exemption 2, the majority in Jordan concluded that the interpretations of Exemption 2 in the House and Senate Reports conflicted, and that the Senate Report gave the preferred construction. The majority accepted the Senate Report to the exclusion of the House Report because it believed that the Senate Report was more consistent with the language of Exemption 2, that the House Report offered no useful guidelines for agency officials, that the House interpretation was too sweeping (and thus inconsistent with the overall purpose of FOIA), and that "the House Report was the product of last minute chicanery by interested members of the House." Id. at 768 .
115
A total of five judges signed the majority opinion. One of them, Judge Bazelon, also wrote separately to emphasize his belief that "an important feature of (the) decision" was to eliminate "secret law," such as the guidelines for prosecutorial discretion. Id. at 781 (Bazelon, J., concurring).
116
Judge Leventhal, with Chief Judge Robinson joining him, concurred separately. Judge Leventhal wrote that where "disclosure would permit circumvention of the law, and there is no substantial, valid external interest of the community at large in revelation," internal instructions to investigators would be exempt under Exemption 2. Id. at 783 . He argued that while the House Report was not as persuasive generally as the Senate Report, it was "not a nullity." Id. Nonetheless, he and Chief Judge Robinson joined in affirming the District Court since they believed that Jordan was not
117
a case of predominant internality, but rather a case of substantial public interest in disclosure that is not offset by an interest in preventing circumvention of law or regulations.
118
Id. at 784 .
119
Judge MacKinnon, joined by Judge Robb, dissented, largely on the basis that section (a)(2)(C) exempted the documents from disclosure. See id. at 785-96 (MacKinnon, J., dissenting).
120
Following Jordan, this circuit issued Cox v. United States Dep't of Justice, 601 F.2d 1 (D.C.Cir.1979). In a brief per curiam opinion, 47 the court held that a "Marshal's Manual"-which gave details concerning the U. S. Marshals' weapons and handcuffs, and their transportation of prisoners-was protected from disclosure under Exemption 2 since the "deleted portions of the Manual unquestionably fall within subsection (b)'s exemption for routine matters of merely internal interest." Id. at 4 . The court sought to distinguish Jordan in that:
121
The undisclosed material (sought by Cox) does not purport to regulate activities among members of the public. Nor does it set standards to be followed by agency personnel in deciding whether to proceed against or to take action affecting members of the public.
122
Id. at 5 .
123
In Lesar v. United States Dep't of Justice, 636 F.2d 472 (D.C.Cir.1980), the plaintiff sought reports and documents from the Justice Department concerning the FBI's investigation of the assassination of Martin Luther King. On the basis of Exemption 2, the Department resisted disclosure of "symbols used to refer to FBI informants in FBI documents and records." Id. at 485 . This court held:
124
We also find that the informant codes plainly fall within the ambit of Exemption 2. The means by which the FBI refers to informants in its investigative files is a matter of internal significance in which the public has no substantial interest.
125
Id. at 485-86 . In support of the proposition that "the public has no legitimate interest in gaining information that could lead to the exposure of confidential sources," id. at 486 , the court cited Exemption 7(D), which exempts from disclosure "information that would disclose the identity of a confidential source in investigatory records." Id. at n.78. Thus, in Lesar, the court referred to the language of another FOIA provision in order to determine the congressional intent underlying Exemption 2. It is also significant that Lesar does not restrict the scope of Exemption 2 to minor employment matters, as the court did in Jordan. 48
126
From these cases it is plain that there is some uncertainty in this circuit regarding the scope of Exemption 2: While Cox purports to follow the analysis in Jordan, its result seems inconsistent with the rationale of Jordan. 49 Moreover, the logic and even result of Lesar seem at odds with that in Jordan. In Lesar the court referred to Exemption 7(D) to decide whether the public had a legitimate interest in disclosure sufficient to overcome Exemption 2. To the extent Jordan holds that Exemption 2 does not exempt law enforcement training or investigative manuals, despite the language of Exemption 7(E), it would appear to be inconsistent with the approach followed in Lesar.
C. Case Law in Other Circuits
127
The cases from other circuits may be divided into two categories: those that have exempted law enforcement investigatory manuals under section (a)(2)(C); and those that have used Exemption 2 to exempt internal law enforcement manuals whose disclosure would risk circumvention of the law. 50
1. Cases Relying on Section (a)(2)(C)
128
The first court of appeals decision to consider the conflict between the Senate and House Reports was Hawkes v. Internal Revenue Service, 467 F.2d 787 (6th Cir. 1972). In Hawkes the appellant sought an IRS tax manual in order to prepare his defense on charges of criminal tax fraud. The Sixth Circuit held that the Senate and House Reports were in complete contradiction, and that the language of the Senate Report was controlling. 51 As a result, the court concluded that it was unlikely that Exemption 2 barred the disclosure of the manual since "we believe that the internal practices and policies referred to in (b)(2) relate only to the employee-employer type concerns upon which the Senate Report focused." Id. at 797 . 52
129
Despite its ruling on Exemption 2, the court in Hawkes found that the Senate had added the word "administrative" in section (a)(2)(C) of FOIA, see note 1, supra, "to bar disclosure of information which, if known to the public, would significantly impede the enforcement process." Id. at 795 (emphasis in original). 53 Thus, although the Sixth Circuit held that Exemption 2 does not exempt certain internal manuals describing investigative techniques, it ruled that Congress had exempted the manuals under another section of FOIA.
130
In 1978, the Eighth Circuit decided Cox v. United States Dep't of Justice (Cox I ), 576 F.2d 1302 (8th Cir. 1978), in which federal agencies cited Exemption 2 and section (a)(2)(C) to resist disclosure of a "Drug Enforcement Agency (DEA) Agents Manual." The court quoted extensively from the Sixth Circuit's opinion in Hawkes v. Internal Revenue Service, 467 F.2d 789 (6th Cir. 1972), and the Fifth Circuit's opinion in Stokes v. Brennan, 476 F.2d 699 (5th Cir. 1973), in holding that materials that may aid in evasion of the law would be exempt under section (a)(2)(C). The court also wrote that
131
(b)(7) does not apply directly to the present case. It does, however, demonstrate an intention by Congress to restrict public access to some law enforcement information, and the section serves as a practical guide for determining which information in the DEA Agents Manual may be withheld from the public.
132
Id. at 1308. The court's sole reference to Exemption 2 was to state that "(b) (2) exempts only 'housekeeping' matters in which 'the public could not reasonably be expected to have an interest.' " Id. at 1309-10, quoting Department of the Air Force v. Rose, 425 U.S. at 369-70 , 96 S.Ct. at 1603 .
133
This opinion was followed one year later by Cox v. Levi, 592 F.2d 460 (8th Cir. 1979), in which the plaintiff sought the "FBI Manual of Rules and Regulations" and the "FBI Manual of Instructions." The District Court had held that Exemption 2 exempted those portions of the Manual of Instructions that related to FBI investigative techniques and procedures, "the disclosure of which would impede the agency in its efforts to carry out its law enforcement responsibilities." Id. at 462 . The Eighth Circuit affirmed the judgment of the District Court holding, however, that those pages whose disclosure would impede law enforcement efforts were exempt not under Exemption 2, but under section (a)(2)(C). The court expressly noted that in Cox I, it had "adopted the narrow interpretation of exemption (b)(2) contained in the Senate Report on the FOIA." Id. In a footnote, the court stated that Cox I "implicitly rejected" the House Report. Id. at n.6. 54
134
Thus, the Sixth and Eighth Circuits have rejected the argument that Exemption 2 exempts agency manuals whose disclosure may risk circumvention of the law. However, both of these circuits have found that section (a)(2)(C) exempts such materials from disclosure, thus lending support to the proposition that Congress did not want these materials released. 55
2. Cases Relying on Exemption 2
135
After the Eighth Circuit decided Cox I, the Second Circuit issued Caplan v. Bureau of Alcohol, Tobacco & Firearms, 587 F.2d 544 (2d Cir. 1978), in which the plaintiff had sought a BATF pamphlet entitled "Raids and Searches." The Court of Appeals agreed with the District Court's specific finding that "the release of such parts of the pamphlet would hinder investigations, enable violators to avoid detection and jeopardize the safety of Government agents." Id. at 545 . The Second Circuit relied heavily on language in the Supreme Court's decision in Rose where the Court had qualified its holding: "at least where the situation is not one where the disclosure may risk circumvention of agency regulation, Exemption 2 is not applicable to matters subject to such a genuine significant public interest." Id. at 547 , quoting Rose, 425 U.S. at 369 , 96 S.Ct. at 1603 (emphasis in Caplan ). The Second Circuit opinion reasoned that the disputed pamphlet did not involve "secret law," but focused "on the techniques for apprehending those who engage in breaking the law." Id. at 548. Considering "the full Senate Report," including its discussion of section (a)(2)(C), the court was "persuaded that the (b)(2) exemption, as the Supreme Court suggested in Rose, includes internal material such as the withheld portions of the BATF manual where disclosure may risk circumvention of agency regulation." Id. 56
136
Following Caplan, the Ninth Circuit issued Hardy v. Bureau of Alcohol, Tobacco & Firearms, 631 F.2d 653 (9th Cir. 1980). As in Caplan, the plaintiff sought portions of a manual entitled "Raids and Searches." In an affidavit, BATF "explained how disclosure would enable violators to evade or hinder law enforcement personnel." Id. at 655 . The court wrote that, but for the conflicting House and Senate Reports, "(f)rom its wording, (Exemption 2) would appear to apply to the contested portions of the manual here." Id.
137
The court in Hardy specifically rejected the Fifth, Sixth, and Eighth Circuits' reliance of section (a)(2)(C) to exempt the material. It also rejected the D. C. Circuit's rationale in Cox v. United States Dep't of Justice, 601 F.2d 1, 4 (D.C.Cir.1979), denying disclosure because the materials were those "in which the public could not reasonably be expected to have a legitimate interest," since such a rule "places courts in the difficult position of determining when the interest of the public in governmental matters is 'legitimate.' " 631 F.2d at 656 .
138
Instead, the Ninth Circuit followed the rationale in Caplan that materials were exempt from disclosure under Exemption 2 if "the disclosure ... may risk circumvention of agency regulation." Id. The court believed that Exemption 2's language was fully applicable since "(m)aterials instructing law enforcement agents on how to investigate violations concern internal personnel practices." Id. The court remanded the case to the District Court "to determine whether (deleted portions of the manual) involve law enforcement material, the disclosure of which would risk circumvention of agency regulation." Id. at 658 . 57
139
From this survey, it appears that the case law on Exemption 2 is scattered. It is important to note, however, that every circuit that has considered the issue, except the District of Columbia Circuit in Jordan, has held that FOIA does not mandate the release of investigatory manuals where disclosure may risk circumvention of agency regulation.
VI. DISPOSITION OF THE PRESENT CASE
140
Our review of the statutory language of Exemption 2, its underlying legislative history, and the other provisions in FOIA leads us to agree with the Second and Ninth Circuits that the portions of the BATF manual withheld in this case are protected from disclosure under Exemption 2.
141
We stress that the language of Exemption 2 supports our conclusion of nondisclosure. The instructions to BATF agents contained in the BATF manual are not written to regulate the public. Likewise, the manual does not embody any "secret law" of the agency. 58 Rather, the deleted portions of the manual refer to investigative techniques, in the form of prescribed rules and practices for agency personnel. Indeed, it is uncontroverted that the disputed rules here have been developed predominantly for internal uses.
142
Obviously, the deleted portions of the manual, as with any "internal personnel rules and practices of an agency," have some effect on the public-at-large. As Judge Leventhal noted in Vaughn II, "there are few events in our society today that occur without so much as a tiny ripple effect outside their area of prime impact." 523 F.2d at 1150 (Leventhal, J., concurring). The critical considerations here, however, are that the manual is used for predominantly internal purposes; it is designed to establish rules and practices for agency personnel, i.e., law enforcement investigatory techniques; it involves no "secret law" of the agency; and it is conceded that public disclosure would risk circumvention of agency regulations. Given these considerations, we hold that the deleted portions of the BATF manual are exempt from disclosure under Exemption 2.
143
Although the majority opinion in Jordan stated that the language of Exemption 2 "would seem to refer to those rules and practices that concern relations among the employees of an agency," 591 F.2d at 763 , and that "personnel" "normally connote(s) matters relating to pay, pension, vacations, hours of work, lunch hours, parking, etc.," id., we feel that the meaning of Exemption 2 is not so limited. In fact, as observed above, two other circuits agree that "(f)rom its wording, (Exemption 2) would appear to apply to the contested portions of the manual here." Hardy v. Bureau of Alcohol, Tobacco & Firearms, 631 F.2d 653, 655 (9th Cir. 1980). Thus, while we recognize that the language of Exemption 2 alone may not answer the issue presented in this case, we conclude that it supports our judgment.
144
To the extent that the legislative history underlying FOIA is helpful, it also supports our conclusion. In both the House hearings and the House debates, members of the House spoke without contradiction that Exemption 2 was designed to protect law enforcement investigatory manuals from disclosure. The House Report reiterates that point. The Senate hearings give little indication of congressional intent and there were no Senate debates. The Senate Report, while helpful in providing some guidance in interpreting the language of Exemption 2, is not inconsistent with the House Report with respect to the question of investigative manuals. 59
145
We are also concerned that every other circuit considering the issue has barred the mandatory release of these materials, whether through the use of Exemption 2 or section (a)(2)(C). In particular, the Second and Ninth Circuits have specifically held such materials exempt under Exemption 2. Embracing the language of the Supreme Court in Rose, they have held "that law enforcement materials, disclosure of which may risk circumvention of agency regulation, are exempt from disclosure." Hardy v. Bureau of Alcohol, Tobacco & Firearms, 631 F.2d 653, 657 (9th Cir. 1980); Caplan v. Bureau of Alcohol, Tobacco & Firearms, 587 F.2d 544, 548 (2d Cir. 1978). These decisions are hardly surprising since the overall design of FOIA, the explicit comments made in the House, the cautionary words of the Supreme Court in Rose, and even common sense, would seem to belie any suggestion that Congress enacted a statute whose provisions undermined its criminal statutes and the effectiveness of law enforcement agencies.
146
It is not up to this court to balance the public interest in disclosure against any reason for avoiding disclosure. 60 Congress has done the necessary balancing and enacted FOIA to represent the "cross-currents" of concern. 61 Rather, our job is to determine congressional intent. In determining that intent, we, of course, look to the statute, its structure, and its purpose as expressed in the legislative history. Consequently, we must construe Exemption 2 narrowly in order to be consistent with congressional intent that FOIA be a disclosure statute. Yet, it will not do for us to act on the primary purpose of the statute to the exclusion of all other express congressional concerns. As we have shown above, Congress evidenced a secondary purpose when it enacted FOIA of preserving the effective operation of governmental agencies. We must consider this purpose, too, when we construe Exemption 2.
147
Accordingly, we hold that if a document for which disclosure is sought meets the test of "predominant internality," and if disclosure significantly risks circumvention of agency regulations or statutes, then Exemption 2 exempts the material from mandatory disclosure. In this formulation, we adopt the Supreme Court's language in Rose as well as the expression "predominant internality" as used by Judge Leventhal in his concurring opinion in Vaughn II. We add the word "significantly" to stress the narrow scope of our construction of Exemption 2; in all cases in which the Government relies on Exemption 2, it remains the Government's burden to prove the "significant risk."
148
While our decision may appear inconsistent with one of the bare legal holdings in Jordan, see 591 F.2d at 771 , we nevertheless believe that from the facts as presented in Jordan, the result in that case would be identical under the test we announce today. It is the rationale in Jordan we reject insofar as it suggests that virtually all law enforcement manuals must be disclosed under FOIA. 62
149
We turn away from the rationale of Jordan because it does not appear to comport with the full congressional intent underlying FOIA. The approach suggested in Jordan, rather than seeking to reconcile the Senate and House understandings of Exemption 2 in FOIA, chooses one report to the absolute exclusion of the other. We find this approach unacceptable in the context of this case. 63
150
Jordan goes farther than is necessary to reach its result. While it may have been possible that release of the prosecutorial documents in Jordan would help some individuals to evade the law, that fact is not clear from the opinion. First, even though the Government argued the point on appeal, there was no finding in the District Court or the Court of Appeals that release of the documents would risk circumvention of the law. 64 Second, it is not clear that release of such documents would actually risk circumvention. As Judge Leventhal pointed out in his concurrence in Jordan, federal prosecutors who resign to go into private practice as defense attorneys "take with them their knowledge of such guidelines (on prosecutorial discretion)." 591 F.2d at 784 . 65 Disclosure of the manual in Jordan would not help individuals evade detection by law enforcement authorities, but release of the BATF manual in the present case might. See note 5, supra.
151
But even assuming that the guidelines in Jordan may aid some individuals in evading the law, the guidelines are not "predominantly internal." They are, as Judge Bazelon emphasized in his concurring opinion in Jordan, a source of "secret law," as important to the regulation of public behavior as if they had been codified. As this court stated in Scott v. United States, 419 F.2d 264, 277 (D.C.Cir.1969),
152
the standards which guide prosecutors in the exercise of their discretion are as much a part of the law as the rules applied in court. Indeed, the impact of such standards is more decisive for many defendants than that of any other legal rules.
153
The guidelines on prosecutorial discretion are instructions to agency personnel (e.g., prosecutors) on how to regulate members of the public. Knowledge of those regulations may be as significant to members of the public as is knowledge of statutory sentencing provisions. The BATF manual, on the other hand, is not concerned with regulating the behavior of the public, but consists solely of instructions to agency personnel. There is no attempt to modify or regulate public behavior only to observe it for illegal activity. Accordingly, under the rule we announce today, the result in Jordan release of the documents on prosecutorial discretion would be the same.
VII. CONCLUSION
154
For the foregoing reasons we affirm the judgment of the District Court in holding that portions of the BATF manual are exempt under Exemption 2.
155
So ordered.
156
MacKINNON, Circuit Judge (concurring).
157
I concur in the majority opinion 1 and the separate opinion of Judge Mikva. In addition it is my opinion that the dissent is largely based on certain factual inaccuracies and flawed analyses that should be pointed out.
158
I. THE DISSENT PLACES UNWARRANTED RELIANCE UPON OUR EN BANC
159
OPINION IN JORDAN V. UNITED STATES DEPARTMENT OF JUSTICE
160
The most pervasive flaw in the dissent, as I perceive it, is the excessive reliance it places on its construction of the en banc opinion in Jordan v. United States Department of Justice, 591 F.2d 753 (D.C.Cir.1978). This reliance largely overlooks the rationale expressed by the concurring opinions of three of the seven judges that formed the majority. The case was heard en banc by nine judges, but only four judges concurred in the opinion without some comment or reservation. Thus, there was never a majority of the court in full support of the entire rationale of Jordan.
161
Judge Bazelon's concurrence stressed the "secret law" aspect of the case, 591 F.2d at 781-2 . The documentary matter at issue in Jordan, as Judge Bazelon noted, set forth "the settled standards which guide the United States Attorney's (prosecutorial) discretion." In his opinion this caused "secret law" to effect the decision. His concurring opinion would indicate that Jordan would not necessarily control with respect to a law enforcement manual that did not involve secret law. Judge Leventhal filed a concurring opinion, in which Judge Robinson concurred, voicing material reservations about the majority's opinion concerning Exemption 2. His opinion relied more on the absence of "predominant internality" in Jordan. Such "internality" however, is present here. Judge Robb also joined in my dissent and Judge Leventhal expressed agreement with respect to the weight given in my dissent to exemption 7 in interpreting the Act, 591 F.2d at 784 .
162
My dissent was based in part on the statement in the Senate Report that the legislative intent was to "protect( ) the traditional confidential nature of instructions to government personnel prosecuting violations of law ... S.Rep.No.813, 89th Cong., 1st Sess. 2 (1965) ..." 591 F.2d at 786 . It was my judgment that this statement of congressional intent covered the prosecutorial instructions to United States Attorneys like a glove, and hence they were exempt. I recognize, however, that the Act also sought to make "secret law" discloseable and that the prosecutorial instructions did, to a certain extent, include some "secret law"-but no secret law is involved here. Jordan is thus distinguishable.
163
This court's disposition of the companion case heard en banc with Jordan also indicates the limited effect which can be given to the court's opinion in Jordan. The case was entitled Ginsburg, Feldman & Bress v. Federal Energy Administration, 591 F.2d 717 (opinion vacated and reheard en banc, district court affirmed by equally divided court, four to four) 591 F.2d 752 (D.C.Cir.1978). Ginsburg involved a law enforcement manual, which set forth law enforcement matter consisting essentially of internal auditing instructions for investigators examining the large oil companies to determine if they were complying with government price regulations. Billions of dollars were involved. The instructions did not constitute secret law but knowledge of the instructions could assist those violating the law to evade detection. Judge Leventhal was recused in Ginsburg, but his concurring opinion in Jordan indicates quite clearly that had he participated he would have voted to hold that the law enforcement manual involved in Ginsburg was exempt from disclosure. The critical sentence in his concurring opinion in Jordan states:
164
"And when what is involved are internal instructions to such officials as bank examiners and investigators, and revelation would permit circumvention of law and regulations by the regulated and there is no substantial valid external interest, there is the essential quality of predominant internality 6 contemplated by Exemption 2."
165
Leventhal, J., concurring, 591 F.2d at 783 (emphasis added).
166
Judge Leventhal's vote would have provided the fifth vote necessary to affirm the holding of the panel opinion that law enforcement manuals were exempt. The opinion in Ginsburg is thus entitled to substantial consideration. This does not mean that I am contending it constitutes controlling precedent.
167
Of course, the precedential value of a panel opinion under ordinary circumstances is practically nil when the case is placed en banc, but when the votes of the judges in Ginsburg are coupled with the views expressed by the concurring and dissenting judges in Jordan, it is clear that decisive votes in Jordan really turned on the secret law and predominant internality aspects of the facts in that case. Such votes also indicate that a majority of all the judges in Jordan would exempt a law enforcement manual, such as we have here, where secret law is not involved and where revelation of its contents would permit individuals who were the subjects of investigatory surveillance to evade detection of their criminal activities.
168
Thus, even though the dissent here is not willing to recognize the extent to which secret law and predominant internality provided the controlling votes in Jordan, the votes of the concurring judges in Jordan and those who voted to affirm Ginsburg, and those who compose the majority here, do distinguish the prosecutorial instructions in Jordan from the Surveillance Training Manual in this case on factual grounds that are clearly distinguishable. Jordan is thus limited to cases involving secret law and predominant internality where the disclosure would not endanger law enforcement.
169
II. THE HOUSE AND SENATE REPORTS ON THE 1966 AMENDMENTS TO
170
THE FREEDOM OF INFORMATION ACT WERE NOT CONTRADICTORY
171
Exemption 2 of the Freedom of Information Act provides:
172
(b) This section (The FOIA Act) does not apply to matters that are-...
173
(2) related solely to the internal personnel rules and practices of an agency ...
174
5 U.S.C. § 552 (b)(2) (1970), 81 Stat. 55 .
175
The dissent takes the rigid position that the Committee Reports in the House and Senate are contradictory with respect to the intent expressed in Exemption 2. Dissent at 1093, 1096-1106. In my opinion they are not.
The Senate Committee Report stated:
176
Exemption No. 2 relates only to the internal personnel rules and practices of an agency. Examples of these may be rules as to personnel's use of parking facilities or regulations of lunch hours, statements of policy as to sick leave, and the like.
177
S.Rep.No. 813, 89th Cong., 1st Sess. 8 (October 4, 1965) (emphasis added). This sparse statement giving only four "examples" of "rules" was all the direct comment in the Senate Report on that exemption. The subsequent House Report on the Senate bill (which was the same as the House Bill), and which was filed during the next session of the 89th Congress, was more detailed as to the intent of Exemption 2. It explained that Exemption 2 was also intended to cover:
178
2. Matters related solely to the internal personnel rules and practices of an agency: Operating rules, guidelines, and manuals of procedure for Government investigators or examiners would be exempt from disclosure, but this exemption would not cover all 'matters of internal management' such as employee relations and working conditions and routine administrative procedures which are withheld under the present law.
179
H.R.Rep.No.1497, 89th Cong., 2d Sess. 10 (May 9, 1966), U.S.Code Cong. & Admin.News 1966, p. 2427 (footnote omitted) (emphasis added).
180
The dissent and some others contend that Exemption 2 is to be construed as though it read: "related solely to the internal personnel rules and internal personnel practices of an agency...." Such construction, however, would construe the exemption to say essentially the same thing twice as there may be little or no difference between an agency's "rules" and "practices." In my opinion, a sounder interpretation would be to read the exemption as extending "internal," but not "personnel," to modify "practices." Then "internal personnel rules" would refer to the agency's relations with its employees as an employer, as described in the Senate Report, and the "(internal ) practices of an agency" would encompass the matters described in the House Committee Report which limited the "practices" that were not exempted. This would also conform to the intent expressed by Congressman Moss, the principal author of the Freedom of Information Act, when he presided as Chairman on the opening day of the House Committee hearings in 1965:
181
Mr. Moss. What this (Exemption 2) was intended to cover was instances such as the manuals of procedure that are handed to an examiner-a bank examiner, or a savings and loan examiner, or the guidelines given to an F.B.I. agent.
182
591 F.2d at 784.
183
However, the dissent and some judges and commentators perceive what they consider to be a contradiction between the intent expressed in the Senate and House Committee Reports. In my judgment there is no contradiction expressed or intended. The Senate Committee Report merely gave several "(e)xamples" of the "rules" it intended to exempt and the House Committee report gave several examples of the "(internal) practices of agenc(ies)" that it intended to be exempt. There is nothing in the Senate Report indicating an intent to limit the exempt rules and practices to the few stated "examples." In fact characterizing them as "examples" indicates that the examples given are not the exclusive exempt matter.
184
To construe the act as not providing for the exemption from disclosure of "law enforcement matters" would also do violence to the intent of the Senate Committee expressed in § 552(a)(2)(C) to completely exclude "law enforcement matters" from inspection. What the dissent and many others forget, or never realize, is that the Senate and the House were in agreement on this phase of the bill that has been recognized as the "law enforcement exemption." See discussion, infra. This exemption was accomplished by amending the bill to provide that only "administrative staff manuals and instructions to staff that affect a member of the public" (emphasis added) should be available for public inspection and copying. 5 U.S.C. § 552 (a)(2)(C).
185
In enacting this statute, both houses of Congress stated in their Reports that they distinguish between manuals relating to (1) "law enforcement matters" and manuals relating to (2) "administrative matters," and indicated that they did not intend to require disclosure of the former.
186
The Senate Committee Report on this section of the bill repeats the statutory language that only "administrative staff manuals and instructions to staff that affect a member of the public" (emphasis added) are to be made available, and explains that its reference to "administrative" was intended specifically to exclude "law enforcement matters" from any disclosure requirement, i.e.:
187
The limitation of the staff manuals and instructions affecting the public which must be made available to the public to those which pertain to administrative matters rather than to law enforcement matters protects the traditional confidential nature of instructions to Government personnel prosecuting violations of law in court, while permitting a public examination of the basis for administrative action.
188
S.Rep.No.713, 89th Cong., 1st Sess. 2, 7 (1965) (emphasis added). If we are to rely exclusively on the Senate Report, as the dissent suggests, this comment is determinative and excludes "confidential" law enforcement matter from disclosure.
189
The House Committee Report on this portion of the bill, moreover, reflects the same intent as the Senate Report, but expresses its intent in greater detail. The House Report specifically states that the legislative intent was to require disclosure of secret law, and not Agency "guidelines for ... auditing or inspection," i.e. law enforcement matter:
190
In addition to the orders and opinions required to be made public by the present law, subsection (b) of S. 1160 would require agencies to make available statements of policy, interpretations, staff manuals, and instructions that affect any member of the public. This material is the end product of Federal administration. It has the force and effect of law in most cases, yet under the present statute these Federal agency decisions have been kept secret from the members of the public affected by the decisions.
191
As the Federal Government has extended its activities to solve the Nation's expanding problems and particularly in the 20 years since the Administrative Procedure Act was established the bureaucracy has developed its own form of case law. This law is embodied in thousands of orders, opinions, statements, and instructions issued by hundreds of agencies. This is the material which would be made available under subsection (b) of S. 1160. However, under S. 1160 an agency may not be required to make available for public inspection and copying any advisory interpretation on a specific set of facts which is requested by and addressed to a particular person, provided that such interpretation is not cited or relied upon by any officer or employee of the agency as a precedent in the disposition of other cases. Furthermore, an agency may not be required to make available those portions of its staff manuals and instructions which set forth criteria or guidelines for the staff in auditing or inspection procedures, or in the selection or handling of cases, such as operational tactics, allowable tolerances, or criteria for defense, prosecution, or settlement of cases.
192
H.R.Rep.No.1497, 89th Cong., 2d Sess. 7-8 (1966), U.S.Code Cong. & Admin.News 1966, pp. 2424-2425 (emphasis added). The italicized comment tracks the Senate Report in reflecting an intent to exempt law enforcement matter when the disclosure would enable law violators to escape detection.
193
The Senate Report thus clearly indicates that "staff manuals ... which pertain to law enforcement matters" need not be "made available to the public" and the House expresses a similar general intent to the extent that the matter constitutes internal practices not directly affecting the public and is not secret law. It would be difficult to find a more precise basis for exempting staff manuals relating to law enforcement matters than the congressional intent expressed by the statements in both the Senate and House Committee reports set forth above. Therefore, it must be concluded, when both reports are read in their entirety, that there is no contradiction between the two houses that "staff manuals ... which pertain to law enforcement matters ... (need not be) made available to the public." If we are to rely only on the Senate Report, as some suggest, such construction could not be plainer.
194
The specific agreement of the House and Senate Committee Reports to exclude from disclosure "law enforcement matters" and "staff manuals and instructions which set forth criteria or guidelines for the staff in auditing and inspection procedures" forecloses appellant's claim for disclosure regardless of ambiguities alleged to exist in some of the more general portions of the statute and the Committee Reports, 2 as specific statements of legislative intent usually prevail over more general provisions. 3 This forecloses an interpretation of the Act that would exclude law enforcement matter from disclosure under (a)(2)(C) and then turn about and require disclosure by § 552(a)(3).
195
It is thus foolhardy to look to the Senate Committee Report on Exemption 2 and conclude that a staff manual on a "law enforcement matter" that would endanger law enforcement is not exempt because the portion of the Senate Report that gave some examples of matter covered by Exemption 2 did not repeat its prior exclusion of "law enforcement matter." The Senate Report on Exemption 2 did not need to state that staff manuals on "law enforcement matters" were excluded by Exemption 2 because the Senate report had already specifically excluded them from all "inspection" and stated that they were not required to be "made available to the public." See S.Rep.No.713, p. 6, supra. Since law enforcement matters were never included in material that could be inspected there was no necessity for excluding them by Exemption 2, or by any other provision.
196
Having said this, it must be recognized that both committee reports treated law enforcement matter the same in (a)(2)(C), but the House Report also was specific in indicating that such matter was excluded by Exemption 2. Actually there was no necessity for Exemption 2 excluding "law enforcement matter." The net result, however, was the same, albeit the exemption was accomplished by two comments in the House Committee Report and one in the Senate Report.
197
A comparison of the House Report on Exemption 2 in the Freedom of Information Act and the Sunshine Act does not reflect, as the dissent indicates, that the House repudiated its 1966 report. The two reports provide:
198
FOIA Act Sunshine Act
House Report House Report
2. Matters related solely to (2) This exemption includes meetings
the internal personnel rules relating solely to an agency's internal
and practices of any agency: personne rules and practices. It is
Operating rules, guidelines, intended to protect the privacy of staff
and manuals of procedure for members and to cover the handling of
Government investigators or strictly internal matters. It does not
examiners would be exempt from include discussions or information dealing
disclosure, but this exemption with agency policies governing employees'
would not cover all 'matters of dealings with the public, such as manuals
internal management' such as or directives setting forth job functions
employee relations and working or procedures. As is the case with all of
conditions and routine the exemptions, a closing or withholding
administrative procedures which permitted by this paragraph should not be
are withheld under the present made if the public interest requires
law. otherwise.
(H.R. Rep. No. 1497, 89th H.R. Rep. No. 94-880, 94th Cong., 2nd
Cong.2d Sess., 10 (1966)) Sess., 9 (1976).
199
What appears most outstanding about the House Report on the Sunshine Bill is that it recognized and defines two categories of matters. First, "strictly internal matters" and, second, directions setting forth job functions or procedures. Confidential instructions to investigators and examiners addressed to them in their law enforcement function, the disclosure of which would allow circumvention of law, are clearly internal matters. While directions setting forth general job functions and procedures for employees dealing directly with the public are in the second category. The Sunshine Bill Report, dated 1976, reflects the same point as Judge Leventhal's 1978 interpretation of "predominant internality" by stating its intent "to cover the handling of strictly internal matters." That was not as explicit in the 1966 Report. Thus, if anything, the Committee Report on the Sunshine Act instead of repudiating the 1966 House Report indicates the same interpretation as that later placed on the FOIA by Judge Leventhal, and the same result was reached with respect to the law enforcement matter in the contemporaneous panel opinion in Ginsburg, supra.
200
The resulting situation explained above also explains why, as the dissent admits, no federal court has ever required the disclosure of a law enforcement manual, such as we have here, where the court found that disclosure would enable violators to escape detection. Dissent at 1112. Hardy v. Bureau of Alcohol, Tobacco & Firearms, 631 F.2d 653, 656-57 (9th Cir. 1980) ("Materials that solely concern law enforcement are exempt under Exemption 2 if disclosure may risk circumvention of agency regulation.") We reached the same result in Cox v. United States Department of Justice, 601 F.2d 1 (D.C.Cir.1979) (withholding disclosure of United States marshal's manual under Exemption 2); as did the Second Circuit in Caplan v. BATF, 587 F.2d 544 (2d Cir. 1978) (BATF Manual describing techniques for apprehending law violators, equipment used in making raids, methods of gaining entry to buildings used by law violators and methods used by law violators to conceal contraband was exempt from disclosure under Exemption 2). The same result is reached in the Eighth, Fifth and Sixth Circuits by applying the "law enforcement exception" implicit in § 552(a)(2) (C). Cox v. Levi, 592 F.2d 460, 463 (8th Cir. 1979); Cox v. United States Dept. of Justice, 576 F.2d 1302, 1307-09 (8th Cir. 1978); Sladek v. Bensinger, 605 F.2d 899 (5th Cir. 1979) (recognized the "law enforcement exception" under (a)(2)(C) but held the contested material in the DEA Manual dealing with informants and search warrants would not obstruct its law enforcement efforts); Stokes v. Brennan, 476 F.2d 699, 701-02 (5th Cir. 1973); Hawkes v. Internal Revenue Service, 467 F.2d 787, 794-95 (6th Cir. 1972). See 1 K. Davis, Administrative Law Treatise § 5.4 (2d ed. Supp.1980). 631 F.2d at 656-7 . Courts can use the (a)(2)(C) provision or Exemption 2 and conform to the intent expressed by both the Senate and House Reports. Such application of the statute also would not be contrary to Department of Air Force v. Rose, 425 U.S. 352, 369 , 96 S.Ct. 1592, 1603 , 48 L.Ed.2d 11 (1976) which based its decision to not apply Exemption 2 on the ground that the requested disclosure would "not risk circumvention of agency regulations" 4 and that there was a "genuine and significant public interest" in the matter, i.e., not "predominately internal" as Judge Leventhal later phrased it. The results in the above cited decisions support the conclusion that the Reports of the two houses are not contradictory.
201
III. THE ANALYSIS OF THE LEGISLATIVE HISTORY BY THE DISSENT
202
IS ALSO FLAWED WITH RESPECT TO THE REASON SLATED
FOR PREFERRING THE SENATE REPORT
203
Vaughn v. Rosen, 523 F.2d 1136, 1142 (D.C.Cir.1975) favored "reliance upon the Senate Report ... (because) it was the only report that was before both houses of Congress." The Supreme Court thereafter in Department of the Air Force v. Rose, supra, 425 U.S. at 366-67 , 96 S.Ct. at 1601-02 (1976) also stated that such fact was one of the reasons why it relied on the Senate Report but added that it "need not consider in (Rose)" the applicability of Exemption 2 in circumstances where such exemption from disclosure might be
204
necessary to prevent the circumvention of agency regulations that might result from disclosure to the subjects of regulation of the procedural manuals and guidelines used by the agency in discharging its regulatory function. See, e.g., Tietze v. Richardson, 342 F.Supp. 610 (S.D.Tex.1972), Cuneo v. Laird, 338 F.Supp. 504 (D.C.1972), rev'd on other grounds sub nom. Cuneo v. Schlesinger, 157 U.S.App.D.C. 368 , 484 F.2d 1086 (1973); City of Concord v. Ambrose, 333 F.Supp. 958 (N.D.Cal.1971) (dictum). Moreover, the legislative history indicates that this was the primary concern of the committee drafting the House Report.
205
425 U.S. at 364 , 96 S.Ct. at 1600 . The Supreme Court in Rose thus did not rule out the House Committee Report because it was not before both houses.
206
Judge Leventhal's concurring opinion in Jordan also points out that the remark quoted from Justice Brennan's opinion does not support an interpretation that the House Report is to be disregarded.
207
The Supreme Court was hospitable to the House Report insofar as it provided an "exemption of disclosures that might enable the regulated to circumvent agency regulation." That feature may not be determinative but it is material. And when what is involved are internal instructions to such officials as bank examiners and investigators, and revelation would permit circumvention of law and regulations by the regulated and there is no substantial valid external interest, there is the essential quality of predominant internality contemplated by Exemption 2.
208
591 F.2d 783 .
209
Jordan admits that the Supreme "Court cautiously left open the question of what to do about any exemption where disclosure may risk circumvention of agency regulation." 591 F.2d at 771. That caution was well advised.
210
The argument that the Senate Report was the only report before two houses possesses a surface plausibility to those unfamiliar with the practical workings of Congress. To others it is unknowledgeable, but because of the ascendancy it has obtained in some of these Exemption 2 cases it should be analyzed. As my colleague Judge Mikva remarked at oral argument in this case: "A Senate report in the House is functus officio." Each House legislates on its own committee report. Neither report can be denied. If they are in irreconcilable conflict, then to the extent of the conflict neither report can be given any effect except as support may come from other sources.
211
The situation with respect to the two committee reports in this case is fully discussed in my opinion in Ginsburg, Feldman & Bress v. FERC, 591 F.2d at 727, in which the district court was subsequently affirmed by an equally divided en banc court.
212
It is foreign to the normal practices and customs of either House to legislate on the basis of a printed report of the other House when it has a printed report of its own, and there is no indication in the legislative record of this bill that reference was made in the House proceedings to the Senate Report or that the letter was actually "before both houses...."
213
591 F.2d 727 . The contention that the Senate Report must prevail because it was "before both Houses," and the House Report was presumably only before the House, is at war with the actual workings of Congress. Thus, to the extent that the dissent relies upon Jordan and Vaughn it is flawed insofar as it claims that only the Senate Report reflects the true congressional intent.IV. THE DISSENT MISCONSTRUES THE SENATE REPORT WITH
RESPECT TO THE RESTRICTIVE EFFECT OF THE WORD
214
"ONLY" IN EXEMPTION 2
The dissent at page 1097 asserts:
215
The Senate Report states that Exemption 2 relates only to "rules as to personnel's use of parking facilities or regulation of lunch hours, statements of policy as to sick leave, and the like." (Emphasis in original).
216
However, the Senate Report that is referred to does not support such a restrictive construction. The Senate Report actually states:
217
Exemption No. 2 relates only to the internal personnel rules and practices of an agency. Examples of these may be rules as to personnel's use of parking facilities or regulation of lunch hours, statements of policy as to sick leave, and the like.
218
S.Rep.No.813, 89th Cong., 1st Sess. (1965) (emphasis added). Merely by comparing the dissent's statement with the actual language of the Committee Report it is plain that the dissent misstates and overstates the effect of the limiting word "only" so as to give the impression that the Senate Report supported a more restrictive construction to Exemption 2 than it actually expressed.
219
In this manner the dissent would read out of the Senate Report the statement that "personnel's use of parking facilities (and) regulation of lunch hours, statements of policy as to sick leave, and the like" were merely "examples" of exemptions and replace it with the incorrect statement that the Senate Report had stated that they were the "only" matters exempted from disclosure by Exemption 2. This misstatement of legislative intent is vital and material and is erroneous.
220
V. THE DISSENT IMPROPERLY CHARGES THE HOUSE COMMITTEE WITH
221
"CHICANERY" IN DRAFTING ITS COMMITTEE REPORT ON
EXEMPTION 2. (DISSENT 1098-1099)
222
Duplicate bills to amend the Freedom of Information Act were introduced during the 89th Congress, 1st Session in both houses on the same date. Their principal author was Representative Moss who is known in Congress and nationwide as the author of the Freedom of Information Act. The House hearings were held first, beginning on March 30, 1965-six weeks before the Senate hearings. Congressman Moss presided as Chairman. Early during the first day of the House Sub-Committee hearings Representative Moss stated, as above set forth, that the intent of Exemption 2, inter alia, was to exempt "manuals of procedure (for) ... examiner(s), or the guidelines given to an FBI agent," i.e., law enforcement manuals. House Hearings on H.R. 5012, 89th Cong. 1st Sess. at 29. As the principal author of the law this statement is definitive. In contrast, contrary testimony adduced from a witness admittedly "talking off the top of my head" 5 (Schlei, Kass) is no indication of congressional intent. The Senate hearings on the companion bill did not begin until some six weeks later on May 14th, and the Senate Committee Report, which is so much relied upon by the dissent, was not filed until October 4, 1965. This was over six months after the House hearings began before Congressman Moss in which he made his statement quoted above.
223
If there were anything to the argument that the separate Houses of Congress legislated upon expressions of legislative intent in the other House, then the House hearings which preceded the Senate Report by seven months would be entitled to as much, or more credence than the Senate Report. However, as explained above, in the en banc opinion here and in my opinion in Ginsburg, when the two reports are closely analyzed they are not inconsistent, 591 F.2d 723 -725. And there was no "chicanery" since the House Report, which issued after the Senate had passed the bill, indicated the same intent with respect to Exemption 2 as Congressman Moss had stated publicly at the very first hearing which antedated the Senate hearings and the Senate Report. This matter is discussed in full detail in my opinion in Ginsburg, 591 F.2d 723 -725, which upheld the district court decision.
224
Therefore, in general, law enforcement manuals, for reasons set forth above, are exempted from disclosure by (b)(2) as well as by (a)(2)(C). Some documents having some relationship to law enforcement, but with special peculiarities such as in Jordan, may be treated differently, but this is not such a case.
225
VI. THE SUBSEQUENT ENACTMENT OF THE SUNSHINE ACT DOES NOT
226
SUPPORT THE DISSENT'S CONSTRUCTION OF EXEMPTION 2 OF FOIA
227
In its far fetched search for support for its position the dissent asserts that its construction of Exemption 2 is supported by the subsequent inclusion in the Government in the Sunshine Act (Sunshine Act) P.L. 94-409, Act of September 13, 1976, 90 Stat. 1241 et seq., of a provision similar to Exemption 2 in the Freedom of Information Act. Specifically the dissent asserts:
228
(I)t is highly significant that the Government in the Sunshine Act, enacted in 1976, carries over verbatim most of the exemptions in the Freedom of Information Act, including the specific language of Exemption 2. Thus, 5 U.S.C. § 552b(c)(2) exempts from the Act's open meeting requirement portions of meetings likely to "relate solely to the internal personnel rules and practices of an agency." The House Report to the Sunshine Act gives the same narrow interpretation to this exemption as the Senate did in 1965:
229
(2) This exemption includes meetings relating solely to an agency's internal personnel rules and practices. It is intended to protect the privacy of staff members and to cover the handling of strictly internal matters. It does not include discussions or information dealing with the public, such as manuals or directives setting forth job functions or procedures. As is the case with all of the exemptions, a closing or withholding permitted by this paragraph should not be made if the public interest requires otherwise.
230
It thus appears that by 1976 the House of Representatives had repudiated the sweeping language concerning Exemption 2 contained in its 1966 report on the Freedom of Information Act.
231
Dissent at 1107 (Emphasis in original). Such construction is not supported by the Act-the Sunshine Act. The operative provisions of Exemption 2 provide:
232
(b) Members shall not jointly conduct or dispose of agency business other than in accordance with this section. Except as provided in subsection (c), every portion of every meeting of an agency shall be open to public observation.
233
(c) Except in a case where the agency finds that the public interest requires otherwise, the second sentence of subsection (b) shall not apply to any portion of an agency meeting ... where the agency properly determines that such portion or portions of its meeting or the disclosure of such information is likely to-...
234
(2) relate solely to the internal personnel rules and practices of an agency...
235
We have already seen above that Exemption 2 of the FOIA extends to law enforcement manuals. As Judge Leventhal succinctly noted in Jordan, supra,
236
... Exemption 2 is applicable where the document consists of internal instructions to such government officials as investigators and bank examiners. In such a case disclosure would permit circumvention of the law, and there is no substantial, valid external interest of the community at large in revelation.
237
591 F.2d at 783. This interpretation is supported by Hardy v. Bureau of Alcohol, Tobacco & Firearms, supra, Cox v. United States Department of Justice, 601 F.2d 1 (D.C.Cir.1979), Caplan v. BATF, supra.
238
Such an analysis of Exemption 2 of the FOIA readily applies to Exemption 2 of the Sunshine Act as well. Where, as in the instant case, a law enforcement manual is involved, we are, as in the Leventhal quotation, dealing with "internal instruction to such government officers as investigators ...;" "disclosure," that "would permit circumvention of the law." As such, it must not by the term of Exemption 2 of the Sunshine Act, be permitted.
239
It is also clear from the face of the Act itself that in addition to Exemption 2, additional exceptions to the general rule of open meetings have been made in Exemption 7 of the Act that would apply to law enforcement matter. The dissent's failure to read these two exemptions in pari materia undercuts its argument from the start.
240
Under Exemption 7 (§ 552b(c)(7)), the disclosure requirements of the Act do not require meetings to be open that would
241
(7) disclose investigatory records compiled for law enforcement purposes, or information which if written would be contained in such records, but only to the extent that the production of such records or information would (A) interfere with enforcement proceedings, (B) deprive a person of a right to a fair trial or an impartial adjudication, (C) constitute an unwarranted invasion of personal privacy, (D) disclose the identity of a confidential source and in the case of a record compiled by a criminal law enforcement authority in the court of a criminal investigation, or by an agency conducting a lawful national security intelligence investigation, confidential information furnished only by the confidential source, (E) disclose investigative techniques and procedures, or (F) endanger the life or physical safety of law enforcement personnel;
242
According to the dissent, were the contested contents of the BATF manual to be read or discussed at a meeting covered by the Sunshine Act, such information would not qualify for Exemption 2 protection and would be required to be disclosed in full to the public. Whether such construction is correct or not, it ignores the plain language of Exemption 7, which provides in definite terms that an agency need not disclose any information that would (A) interfere with enforcement proceedings; (E) disclose investigative techniques and procedures; or (F) endanger the life or physical safety of law enforcement personnel. Since the BATF manual covers agent "surveillance of premises, vehicles, and persons," it thus contains matter coming within the purview of all of the aforementioned subsections. Consequently, if the BATF Manual were the subject of a meeting covered by the Sunshine Act, by the terms of the above quoted clauses of subsection 7, the meeting would be exempt from disclosure. Thus, the Sunshine Act like the Freedom of Information Act does not rely exclusively on Exemption 2 to exempt law enforcement matter.
243
A specific example is indicated by considering the application to a concrete case of subsection (F) which provides that any meeting need not be open if it would "endanger the life or physical safety of law enforcement personnel." Such exemption would protect a meeting from being open to the "Sunshine" if it was likely to disclose matter in a United States
244
marshals' manual which dealt with the caliber of weapons and length of barrels on weapons used by marshals, the type of ammunition used and the number of rounds issued, the type of handcuffs used by marshals, the place where handcuff keys are secured, the radio transmission and receiving frequencies of operational units or with arrangements for prisoners during transportation such as procedures for inspecting prisoners during transport for objects to break open handcuffs.
245
In Cox v. United States Department of Justice, 601 F.2d 1 (D.C.Cir.1979) we upheld the exemption of such printed matter from disclosure under the Freedom of Information Act. The dissent criticizes such decision, Dissent, 1110, but such matter is exactly the type of information that, if it were to become public, would "endanger the life (and) physical safety of law enforcement personnel." In this respect the Sunshine Act like the Freedom of Information Act is specifically protective of law enforcement matters. The dissent's reliance on the Sunshine Act is accordingly groundless.
246
For the foregoing reasons, the dissent's assertion that the Sunshine Act and its Exemption 2 supports disclosure of the BATF manual is without foundation. Indeed, those provisions of the Sunshine Act that provide for the exemption of information from disclosure that is integrally related to law enforcement matters mandate precisely the opposite result.
MIKVA, Circuit Judge, concurring:
247
I join in Judge Edwards' responsible and well-reasoned opinion for the majority. Ordinarily, I would see no need for a separate statement of my views, but I find the dissent troublesome.
248
I disagree wholeheartedly with Judge Wilkey's conclusion that a "new majority" of this court has "decreed a remarkable reversal in both rationale and result" of Jordan v. United States Department of Justice, 591 F.2d 753 (D.C.Cir.1978) (en banc). Dissent at 1093, 1118. The composition of this court is different, but so is the nature of the materials whose release under the Freedom of Information Act (FOIA) is at issue here. Jordan concerned "manuals, rules, and guidelines used by a United States Attorney to guide his staff in deciding questions of prosecutorial discretion ...." K. Davis, Administrative Law Treatise § 5.4, at 18 (2d ed. 1980 Supp.). These were materials that at least one of the judges in Jordan found to be "secret law."
249
The settled practices of the government, in deciding which cases to prosecute and which cases to divert from the courts are, if not codified "law," at least as important as any statute to the individual charged with a crime....
250
The public availability of these general policy manuals will serve fundamental interests in the criminal justice system by helping to assure that the exercise of prosecutorial discretion is even-handed, rational, and consonant with statutory intent, which are touchstones for the proper exercise of such discretion.
251
591 F.2d at 781 (Bazelon, J., concurring).
252
In contrast, this dispute concerns a manual of the Bureau of Alcohol, Tobacco & Firearms (BATF) entitled "Surveillance of Premises, Vehicles and Persons-New Agent Training." This is a pamphlet that tells law-enforcement employees how to catch law-breakers. Michael Crooker, the litigant, is a federal prisoner. He has not disputed that release of the BATF manual will help individuals evade the law. There is a vast difference between the secret substantive and procedural law involved in Jordan and "information that would impede law enforcement efforts" such as the BATF material at issue here. See Cox v. Department of Justice, 576 F.2d 1302, 1309 (8th Cir. 1978). It may not always be a simple matter to analyze particular materials at the margin, of course, but the general distinction is sound. "Lines are not the worse for being narrow if they are drawn on rational considerations." 10 E. 40th St. Building, Inc. v. Callus, 325 U.S. 578, 584 , 65 S.Ct. 1227, 1230 , 89 L.Ed. 1806 (1945) (Frankfurter, J.). The release of material in Jordan served fundamental public interests and helped police those who police others. Disclosure of the BATF manual would not serve the same interest, and would unquestionably promote "circumvention of agency regulation." Department of the Air Force v. Rose, 425 U.S. 352, 369 , 96 S.Ct. 1592, 1603 , 48 L.Ed.2d 11 (1976). As the majority opinion emphasizes, nothing in this decision undercuts the result reached in Jordan. It is pejorative to suggest that the court "is playing a legislative game" and engaging in "improper" conduct, Dissent at 1093, when the composition of the case is so strikingly different.
253
It may fairly be asked, of course, whether the factual distinctions between Jordan and this case also justify different dispositions under the law. The portions of Judge Wilkey's dissent that probe the legislative history and subsequent commentators are praiseworthy. His careful analysis makes some solid arguments, and the fact that a majority of the court disagrees with his conclusion does not diminish their force. 1 Indeed, disputes over what is relevant evidence of congressional intent are to be expected when the words of the statute are ambiguous and the legislative history is contradictory. In the end, I concur because I agree with Judge Wilkey's statement for the court in Vaughn v. Rosen, 523 F.2d 1136, 1142 (D.C.Cir.1975), that even the Senate Report "indicates that the line sought to be drawn is one between minor or trivial matters and those more substantial matters which might be the subject of legitimate public interest." If Judge Wilkey simply disagreed as to which side of this line the BATF manual falls, there would be no need for this concurrence. There is another side to his dissent, however, that invites challenge.
254
I find implicit in the dissent a lamentable tendency to scorn the legislative process, an indictment that Judge Wilkey has himself leveled at the majority. He emphasizes "the contradictory Senate and House interpretations of Exemption 2," and contends that they cannot be reconciled. Dissent at 1093. He relies on several commentators who have charged that the House Report was an "abuse of legislative history," id. at 1099-1100; he calls it "the product of last minute chicanery," id. at 1099. Most importantly, he seems to attribute to Congress an obstinate irrationality. Although it is patent that "a reasonable Congress could not have intended to require disclosure of information that would impair law enforcement," K. Davis, supra at 21, Judge Wilkey concludes that the swarms of witnesses who warned of this effect seemingly to no avail shows that Congress intended exactly the opposite. Dissent at 1100-1104. Hurling judicial invective at legislators and their product hardly squares with respect for the legislative process.
255
Admittedly, as Judge Leventhal observed in his concurring opinion in Vaughn, the legislative history of Exemption 2 is both "confused" and "obscure." 2 523 F.2d at 1147 . This provides no excuse for picking with condescension at bits and pieces of the legislative history, however. For example, nothing in the Supreme Court's offhand statements in Rose forecloses doubt as to whether the Senate Report or the House Report is more reliable. Judge Leventhal, whose expertise on issues of legislative history was second to none, thoroughly demonstrated the error in the argument Judge Wilkey tries to make from their chronology:
256
The argument that the Senate Report was "available" to the House members is theoretical: The members of the House committee did have the Senate Report, but they departed from it.... As to the mass of members of the House, the realities of the legislative process advise that what they had furnished to them for floor consideration is the bill (here there were no differences from the Senate bill) and the House Report. They could theoretically send for the Senate Report, but what occasion would there be for such a rare step ...? Again as a matter of the legislative reality of the legislative process, each House regards its own position as distinctive, and its members rarely if ever refer to reports of the other chamber.
257
523 F.2d at 1148 (emphasis added). I suspect that entirely too much has been made of the apparent conflict between the House and Senate Reports both by courts and scholarly commentators, certainly more than any reasonable perspective on the legislative process can support. May not judicial notice be taken of the fact that committee reports are often authored entirely by staff members, and that in the rush and flurry of events active congressmen may never have an opportunity to read these reports at all? As Justice White observed in Cass v. United States, 417 U.S. 72, 83 , 94 S.Ct. 2167, 2173 , 40 L.Ed.2d 668 (1974), "In resolving ambiguity, we must allow ourselves some recognition of the existence of sheer inadvertence in the legislative process" (quoting Schmid v. United States, 436 F.2d 987, 992 (Ct.Cl.1971)). Cf. Perry v. Commerce Loan Co., 383 U.S. 392, 401 , 86 S.Ct. 852, 857 , 15 L.Ed.2d 827 (1966) (inclusion of section in statute found to have been "a legislative oversight").
258
Congress is composed of two bodies and 535 individuals; it is too much to expect that it will always speak with flawless consistency and clarity. When it does not, however, the task of courts is to reconcile ambiguous words with congressional policies in order to find a result consonant with what Congress intended to do. 3 "There is no invariable rule for the discovery of that intention. To take a few words from their context and with them thus isolated to attempt to determine their meaning, certainly would not contribute greatly to the discovery of the purpose of the draftsmen of a statute ...." United States v. American Trucking Ass'ns., 310 U.S. 534, 542 , 60 S.Ct. 1059, 1063 , 84 L.Ed. 1345 (1940). If there is a general precept, however, it is that courts must strain to interpret the results of the legislative process as reasonable and not ridiculous. "All laws should receive a sensible construction. General terms should be so limited in their application as not to lead to injustice, oppression, or an absurd consequence. It will always, therefore, be presumed that the legislature intended exceptions to its language, which would avoid results of this character." United States v. Kirby, 74 U.S. (7 Wall.) 482, 486-87 , 19 L.Ed. 278 (1868); see Jacobson v. Massachusetts, 197 U.S. 11, 39 , 25 S.Ct. 358, 366 , 49 L.Ed. 643 (1905).
259
The canon in favor of strict construction is not an inexorable command to override common sense and evident statutory purpose.... No rule of construction necessitates our acceptance of an interpretation resulting in patently absurd consequences. And the absence of any significant legislative history, other than has been related, may be indicative that Congress considered that there was no such problem as is now sought to be injected in the statutory wording ....
260
United States v. Brown, 333 U.S. 18, 25-27 , 68 S.Ct. 376, 379-380 , 92 L.Ed. 442 (1948). In the instant case, it is irrefutable that Congress did not intend the Freedom of Information Act to provide criminals with the means to evade detection and arrest. "Granted that the present problem could have been obviated by even more astute draftsmanship," id. at 25, 68 S.Ct. at 379 , there is no excuse for a court to strain to reach such an absurd and unreasonable result. 4 I agree with Judge Wilkey that it is not for us to correct errors of Congress, dissent at 1119, but neither may we ascribe to Congress errors that it clearly did not intend. Judge Wilkey urges a result that makes scofflaws of the Congress, or at least some of its members, and such contumely is unnecessary, unwise, and injudicious.
261
My second difficulty with Judge Wilkey's dissent grows out of the first. He tells us that "(t)he test of a judge who has taken an oath to uphold the law is the objectivity with which he interprets and enforces laws of which he thoroughly disapproves." Dissent at 1121. Where the meaning of legislation is plain, "it must be obeyed." United States v. Fisher, 6 U.S. (2 Cranch) 358, 386 , 2 L.Ed. 304 (1805) (Marshall, C.J.). It is an equally venerable principle, however, that courts have the duty discussed above to reject constructions that are "absurd" and "to expound (the words of a statute) so as to give some effect to the legislative will. Some latitude of construction, then, must be used." Wilson v. Mason, 5 U.S. (1 Cranch) 45, 102 , 2 L.Ed. 29 (1801) (Marshall, C. J.). See Huidekoper v. Douglass, 7 U.S. (3 Cranch) 1, 66 , 2 L.Ed. 347 (1805). "The interpretation of the meaning of statutes, as applied to justiciable controversies, is exclusively a judicial function." United States v. American Trucking Ass'ns., supra, 310 U.S. at 544 , 60 S.Ct. at 1064 .
262
If statutory interpretation were the simple, even mechanical task that Judge Wilkey implies, there might be a stronger basis for his dissent. There also would be a need for fewer judges, and appeals, and opinions. Unfortunately, our work is not that simple, and his statement that the majority is "playing ... a legislative game," dissent at 1093, may come across as a denunciation of far more distinguished judges than we. As Justice Frankfurter explained in Carpenters' Union v. NLRB, 357 U.S. 93 , 78 S.Ct. 1011 , 2 L.Ed.2d 1186 (1958):
263
The problem raised by these cases affords a striking illustration of the importance of the truism that it is the business of Congress to declare policy and not this Court's. The judicial function is confined to applying what Congress has enacted after ascertaining what it is that Congress has enacted. But such ascertainment, that is, construing legislation, is nothing like a mechanical endeavor. It could not be accomplished by the subtlest of modern "brain" machines. Because of the infirmities of language and the limited scope of science in legislative drafting, inevitably there enters into the construction of statutes the play of judicial judgment within the limits of the relevant legislative materials.
264
Id. at 100 , 78 S.Ct. at 1016 . See United States v. American Trucking Ass'ns., supra, 310 U.S. at 544 , 60 S.Ct. at 1064 (Justice Reed); United States v. Kirby, supra, 74 U.S. at 487 (Justice Field) ("The reason of the law in such cases should prevail over its letter"); Civil Rights Cases, 109 U.S. 3, 26 , 3 S.Ct. 18, 32 , 27 L.Ed. 835 (1883) (Justice Harlan) ("It is not the words of the law but the internal sense of it that makes the law: the letter of the law is the body; the sense and reason of the law is the soul"); Church of the Holy Trinity v. United States 143 U.S. 457, 472 , 36 L.Ed. 226 (1892) (Justice Brewer) ("the act, although within the letter, is not within the intention of the legislature, and therefore cannot be within the statute"). Judge Wilkey's test is either simplistic, or tars so many distinguished judges that the brush is wider than he could possibly defend.
265
Put another way, Judge Wilkey misapprehends the true distinction between the legislative and the judicial function. An appellate judge as much as a legislator, in Edmund Burke's words, owes his society "not his industry only, but his judgment." There are similarities between the two roles that cannot be denied. See, e.g., B. Cardozo, The Nature of the Judicial Process (1921); Hazard, The Supreme Court as a Legislature, 64 Cornell L.Rev. 1 (1978). Both roles require application of reason to statutes, analysis of facts, and the rational treatment of complex issues. This by no way means that appellate judges and legislators are the same, of course, although polemicists with hidden agendas may try to twist the point. The judge becomes an illicit legislator when he goes beyond a dispassionate interpretation of the intent and meaning of the legislature that enacted the law before him.
266
This observation must raise the question of who it is that truly seeks to legislate here. The majority opinion has applied the Freedom of Information Act in view of the intent of the several legislatures that passed, amended, or resisted amending it. We may have judged erroneously, of course. To paraphrase Justice Jackson, we are neither infallible nor final. Nevertheless, although our judgment may be wrong, it is no less a judgment in good faith. Judge Wilkey rejects any attempt to judge the intent of Congress, and woodenly focuses only on the words of the statute: "Its literal meaning should be given effect." Dissent at 1104. His version of the literal meaning leads to an absurd result that could not have been contemplated by Congress. Indeed, as Judge Wilkey stated in his decision for the panel that has been vacated, "we may regret that Congress has mandated the disclosure ...." Crooker v. Bureau of Alcohol, Tobacco & Firearms, --- F.2d ----, ----, No. 80-1278 (D.C.Cir. November 12, 1980), at 7. He commends the literal application of the statute with an eye toward "an effort to rewrite substantially the Freedom of Information Act" now underway in Congress, dissent at 1120, and confides that "(a)s a policy matter, I hope the Congress does a complete job of revision ...." Id. at 1120. Who, then, actually exceeds the bounds of the judicial role and seeks to legislate instead? Who, then, is truly diminishing public confidence in the work of our court?
267
Finally, I regret that Judge Wilkey chooses to "test" the bonafides of judicial oaths "to uphold the law," id. at 1121. I think Judge Wilkey can be true to his oath and the rest of the court can be true to theirs even though we disagree as to whether an adjudged felon is authorized by FOIA to utilize the BATF Manual on "Surveillance of Premises, Vehicles and Persons" for his own ends. I wish it had not been necessary to concur in a separate opinion, but the ironies of Judge Wilkey's dissent should not go unremarked.
GINSBURG, Circuit Judge, concurring:
268
The panel decision in this case followed the court's en banc decision in Jordan v. United States Dep't of Justice, 591 F.2d 753 (D.C.Cir.1978). The court, again sitting en banc, now turns away from the Jordan rationale but adheres to the result reached in that case. Maj. op. at 1053, 1074-1075. I find the current opinion a plausible interpretation of the language of Exemption 2, consistent with decisions in other circuits, "the overall design of FOIA, the explicit comments made in the House, the cautionary words of the Supreme Court in Rose, and even common sense." Maj. op. at 1074. I therefore concur in the opinion, with reservations limited to the explanation the court offers for preserving the Jordan judgment. The court concludes that "the result in (Jordan) would be identical under the test we announce today." Maj. op. at 1053, 1074. The manner in which the court's opinion spares the Jordan judgment while abandoning the Jordan r

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/399388. Public record. Not legal advice.