Opinion
Samuel H. Seymour, Robert A. Seefried, Walter G. Birkel, Jr., Washington, D. C., for plaintiff.
Carol Buehrens, Dept. of Justice, Washington, D. C., for defendants.
OPINION
JOHN LEWIS SMITH, Jr., District Judge.
In this Freedom of Information Act case, the Church of Scientology of California seeks from the Treasury Department's Office of the Assistant Secretary for Enforcement, Operations, and Tariff Claims (EOTA), Office of General Counsel, and the U.S. Secret Service records in their possession pertaining to the Church, its founder L. Ron Hubbard, and the subject of scientology in general. Defendants are the U.S. Treasury, the U.S. Secret Service, the Secretary of the Treasury, and the Director of Secret Service. The matter comes before the Court on defendants' Motion for Summary Judgment and plaintiff's Motion to Compel.
Plaintiff's initial request for records was made to the Treasury Department and its component agencies on December 19, 1974. By the time the complaint instituting this action was filed, one hundred forty-five documents had been identified to the request. Of these, ninety-six had been surrendered. The remaining forty-nine were being withheld under the aegis of Exemption 5 to the Act, 5 U.S.C. s 552(b)(5), which protects "inter-agency or intra-agency memorandums or letters which would not be available by law to a party . . . in litigation with the agency". On April 19, 1977, plaintiff advised the government that "in the spirit of reasonableness and compromise" it was withdrawing its request to all but twenty of the documents. However, plaintiff noted that the Secret Service had acknowledged in its answers to interrogatories that it had not searched for the requested records through the Treasury Enforcement Communications System (TECS). Plaintiff asked that such a search be completed. On May 13, the government turned over the complete text of ten of the twenty, and the partial text of three more.
The Secret Service does not have terminal facilities allowing it direct access to TECS and is not a user of the system. Consequently, any request for records in the system should be directed to the Department of Customs, which administers TECS.
Eight of the ten documents remaining in dispute are from EOTA. James Featherstone, Deputy Assistant Secretary for EOTA, describes them as follows:
Referring to dictum in a 1952 Supreme Court decision that only the head of an agency may invoke executive privilege, plaintiff urges that Mr. Featherstone's affidavit is insufficient. See Reynolds v. United States, 345 U.S. 1, 73 S.Ct. 528, 97 L.Ed. 727 (1952). See also, Carl Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena, 40 F.R.D. 318 (D.D.C.1966), aff'd 128 U.S.App.D.C. 10, 384 F.2d 979, cert. denied, 389 U.S. 952, 88 S.Ct. 334, 19 L.Ed.2d 361 (1967). That language is not pertinent here. The courts have recognized several aspects to executive privilege. See, e. g., Reynolds v. United States, supra; Environmental Protection Agency v. Mink, 410 U.S. 73, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973); Senate Select Committee on Presidential Campaign Activities v. Nixon, 162 U.S.App.D.C. 183, 498 F.2d 725 (D.C.Cir.1975); Ethyl Corporation v. Environmental Protection Agency, 478 F.2d 47 (4th Cir. 1973). In light of the many FOIA cases filed each year, court adherence to the Reynolds dictum in cases not dealing with the constitutional facet of the privilege would impose on agency heads a tremendous burden. Reynolds does not require such a result, and common sense prohibits it.
The other two documents are described in the affidavit of Hugo Ranta, Assistant General Counsel, from whose office they emanate.
See footnote 2, supra.
Essentially, Exemption 5 protects "those documents, and only those documents, normally privileged in the civil discovery context." NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149, 95 S.Ct. 1504, 1515, 44 L.Ed.2d 29 (1975). See EPA v. Mink, 410 U.S. 73, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973) .