# 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/9468904

## 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:** Concurrence by MacKINNON
- **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/9468904

## 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

*1076 MacKINNON, Circuit Judge
(concurring).
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.
I. THE DISSENT PLACES UNWARRANTED RELIANCE UPON OUR EN BANC OPINION IN JORDAN V. UNITED STATES DEPARTMENT OF JUSTICE
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 .
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 .
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 Jaw . . . 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 prosecuto-rial 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.
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:
“And when what is involved are internal instructions to such officials as bank ex *1077 aminers 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.”
Leventhal, J., concurring, 591 F.2d at 783 (emphasis added).
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.
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.
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.
II. THE HOUSE AND SENATE REPORTS ON THE 1966 AMENDMENTS TO THE FREEDOM OF INFORMATION ACT WERE NOT CONTRADICTORY
Exemption 2 of the Freedom of Information Act provides:
(b) This section [The FOIA Act] does not apply to matters that are — . . .
(2) related solely to the internal personnel rules and practices of an agency . . .
5 U.S.C. § 552 (b)(2) (1970), 81 Stat. 55 .
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: 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.
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:
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.
*1078 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).
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:
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.
591 F.2d at 784.
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 “[ejxamples” 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.
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).
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.
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.:
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.
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 determi *1079 native and excludes “confidential” law enforcement matter from disclosure.
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:
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.
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.
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.
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.
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 spe *1080 cific 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).
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.
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.
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:
FOIA Act 1966 House Report
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.
(H.R. Rep. No. 1497, 89th Cong., 2d Sess., 10(1966)).
Sunshine Act House Report
(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 memlxirs and to cover the handling of strictly internal matters. It does not include discussions or information dealing with agency policies governing employees' dealings 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.
H.R. Rep. No. 94-880, 94th Cong., 2nd Sess., 9 (1976).
*1081 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 Leven-thal, and the same result was reached with respect to the law enforcement matter in the contemporaneous panel opinion in Ginsburg, supra.
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.
III. THE ANALYSIS OF THE LEGISLATIVE HISTORY BY THE DISSENT IS ALSO FLAWED WITH RESPECT TO THE REASON SLATED FOR PREFERRING THE SENATE REPORT
Vaughn v. Rosen, 523 F.2d 1136, 1142 (D.C.Cir.1975) favored “reliance upon the *1082 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
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.
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.
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.
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.
591 F.2d 783 .
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.
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 offi-cio." 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.
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.
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. . . . ”
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.
*1083 IV. THE DISSENT MISCONSTRUES THE SENATE REPORT WITH RESPECT TO THE RESTRICTIVE EFFECT OF THE WORD “ONLY” IN EXEMPTION 2
The dissent at page 1097 asserts:
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).
However, the Senate Report that. is referred to does not support such a restrictive construction. The Senate Report actually states:
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.
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.
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.
V. THE DISSENT IMPROPERLY CHARGES THE HOUSE COMMITTEE WITH “CHICANERY” IN DRAFTING ITS COMMITTEE REPORT ON EXEMPTION 2. (DISSENT 1098-1099)
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.
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 *1084 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.
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.
VI. THE SUBSEQUENT ENACTMENT OF THE SUNSHINE ACT DOES NOT SUPPORT THE DISSENT’S CONSTRUCTION OF EXEMPTION 2 OF FOIA
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:
[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:
(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.
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.
Dissent at 1107 (Emphasis in original). Such construction is' not supported by the Act — the Sunshine Act. The operative provisions of Exemption 2 provide:
(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.
(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 — . . .
(2) relate solely to the internal personnel rules and practices of an agency. . .
We have already seen above that Exemption 2 of the FOIA extends to law enforcement manuals. As Judge Leventhal succinctly noted in Jordan, supra,
. . . 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.
*1085 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.
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.
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.
Under Exemption 7 (§ 552b(c)(7)), the disclosure requirements of the Act do not require meetings to be open that would
(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;
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.
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
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.
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 ex *1086 actly 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.
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.
. I would also rule that the effect of the recognized “law enforcement exception” in 5 U.S.C. § 552 (a)(2)(C) would exclude the law enforcement matter here involved from disclosure. See discussion at pages 1078-1079, infra.
See Vaughn v. Rosen, 173 U.S.App.D.C. 187, 201-202 , 523 F.2d 1136, 1150-51 (1975) (Leventhal, J., concurring) (“solely” is not to be given an extreme construction).
. The general rule of statutory construction is that a specific provision prevails over a more general one. Fourco Glass Co. v. Transmirra Corp., 353 U.S. 222, 228-29 , 77 S.Ct. 787, 791-92 , 1 L.Ed.2d 786 (1957) stated the rule as follows:
“However inclusive may be the general language of a statute, it ‘will not be held to apply to a matter specifically dealt with in another part of the same enactment. . . . Specific terms prevail over the general in the same or another statute which otherwise *1080 might be controlling.’ Ginsberg & Sons v. Popkin, 285 U.S. 204, 208 [ 52 S.Ct. 322, 323 , 76 L.Ed. 704 ].” MacEvoy Co. v. United States, 322 U.S. 102, 107 , 64 S.Ct. 890, 893 , 88 L.Ed. 1163 .
. This is the common intendment of people in writing and conversing, and is recognized in the application of provisos and special statutes over general statements and laws. Where statutes deal with a subject in both general and detailed terms, and there is conflict between the two, the detailed expression prevails. For example, Preiser v. Rodriguez, 411 U.S. 475, 489 , 93 S.Ct. 1827, 1836 , 36 L.Ed.2d 439 (1973) held that the “specific habeas corpus statute” prevails over the “general” civil rights statute, 42 U.S.C. § 1983 ; see also, Bulova Watch Co. v. United States, 365 U.S. 753, 758 , 81 S.Ct. 864, 867 , 6 L.Ed.2d 72 (1961); 4 Sutherland, Statutory Construction (Sands) § 51.05, 315 (1973); E. Crawford, Statutory Interpretation § 189 (1940). The same logic would recognize that when the two Houses were in agreement on the application of an act to a special situation, they would not be deemed to intend to override that specific conclusion by general language.
. Rose was the first case to so characterize this as a possible factor in determining exemption.
. Hearings Before a Subcommittee of the Committee on Government Operations on H.R. 5012 et al., 89th Cong., 1st Sess. 29 (March 30, 1965).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9468904. Public record. Not legal advice.