JOHN DOE AGENCY v. JOHN DOE CORP.
Legal provision: Freedom of Information, Sunshine, or Privacy Act
Argument of Edwin S. Kneedler
Chief Justice Rehnquist: We will hear argument now on number 88-1083, John Doe Agency and John Doe Government Agency versus John Doe Corporation.
Mr. Kneedler: Thank you, Mr. Chief Justice, and may it please the Court:
This case concerns the interpretation of the law enforcement exemption to the Freedom of Information Act.
That exemption, Exemption 7, provides that the Act
"does not apply to matters that are records or information compiled for law enforcement purposes. "
if the production of the records or information would produce any one of six enumerated harms.
This Court has repeatedly recognized the importance of the public and private interests that are protected by Exemption 7, in Robbins Tire, in Abramson and in Reporters Committee.
Unknown Speaker: Mr. Kneedler, do you know anything about how the parties all got this John Doe denomination in the District Court?
Mr. Kneedler: There was the proceeding... the Court of Appeals granted a motion for the proceedings on appeal to proceed under seal, and as a result of that, the... the... we have... we have continued to comply with the, with the requirement that the agencies be referred to as John Doe Agency and John Doe Government Agency.
We have... we have no objection to disclosing the names of the agencies.
We have just continued under that practice because that was the order in the Court of Appeals.
Unknown Speaker: The Court of Appeals directed--
Mr. Kneedler: Right.
Unknown Speaker: --that everybody be designated as a John Doe?
Mr. Kneedler: or... or... under seal... under seal, so that... at least with the names under seal, so that the public would not know.
Unknown Speaker: Thank you.
Mr. Kneedler: As I have said, the Court has repeatedly recognized the importance of these law enforcement interests, and after Abramson was decided, Congress in fact built upon Abramson and expanded the coverage of Exemption 7, to ensure that law enforcement information would be protected irrespective of the format in which it was collected.
Foremost among the purposes of Exemption 7, as this Court and Congress have repeatedly stated, was to protect the government's case from interference.
The circumstances of this case well illustrate the importance of Exemption 7 in this regard.
The Freedom of Information Act request was submitted in the context of an ongoing grand jury proceeding.
It was submitted by a target of that investigation, and the District Court specifically found that the... this... that production of the documents would jeopardize the proceedings.
The Court of Appeals--
Unknown Speaker: Mr. Kneedler, at the time the request was made here, had the documents in your view been compiled or were they compiled after the request was made?
Mr. Kneedler: --The documents were compiled after the request was made, but in our view they were... they were compiled... compiled for law enforcement purposes; they were compiled for law enforcement purposes before the request was denied.
The sequence of events was that the Freedom of Information Act... the... the grand jury... or the criminal investigation began in 1985.
There was a subpoena in 1986, in February, to the corporation.
As a result of that, the corporation alerted to the investigation and filed a FOIA request in September of 1986 with the John Doe Agency, the auditing agency involved in the case.
That agency consulted with the law enforcement agency involved in the case, and on the advice of that law enforcement agency, denied the request on November 18.
And then on November 20th, the documents deemed responsive to the FOIA request were transferred from the first agency to the second agency.
Unknown Speaker: What constituted the compilation?
Mr. Kneedler: I... I think... I think most... in the sense that the statute uses the term compilation, I think that once the, the Department of Justice, in this... in the course of this consultation said yes, indeed, these documents are relevant to our investigation, we want them, and don't disclose them, we think at that point the records were, were gathered together or incorporated--
Unknown Speaker: The request by the agency to withhold them constitutes a compilation, in your view?
Mr. Kneedler: --Well, there are several senses in which they could be.
I... I think... I think the initial sense--
Unknown Speaker: Is that what you are asking us to adopt as the rule?
Mr. Kneedler: --Yes.
The Court doesn't have to adopt that... the Court doesn't have to go that far in this case because the records were subsequently transphysically transferred to the second agency, and they are included in a larger collection of documents that the second agency has.
Unknown Speaker: Well, one could take the position that you have to physically assemble the documents somehow, I suppose?
Mr. Kneedler: Or, or gather them, take, take them together.
That, that would be one possible construction, I suppose, of, of the Act.
And here that was done, because the second agency gathered the documents, put them... put them in its files, which concededly, its files concededly--
Unknown Speaker: Well, depending upon the timing.
Now, you could read the statute as meaning they have to be compiled when the request is made, I suppose?
Mr. Kneedler: --I, I don't think that... I don't think that construction would be... would fit with the sense of the statute.
This isn't a situation in which there... in which there should be a race to the documents in the sense of who has a prior lien on them, or something like that.
Unknown Speaker: When do you say, Mr. Kneedler, they were compiled?
Mr. Kneedler: --Excuse me, when?
Unknown Speaker: When?
Mr. Kneedler: When.
Well, in our... it is our view that they were compiled at the time that the second agency, through the... speaking through the Assistant United States Attorney, said yes, those documents are included in the subject matter of our investigation.
After the first agency consulted with the second agency.
Unknown Speaker: Well, the second is the FBI, is that it?
Mr. Kneedler: Uh, yes.
Unknown Speaker: And the first is DCAA?
Mr. Kneedler: Uh yes, that is... yes.
Unknown Speaker: Were they ever compiled by DCAA?
Mr. Kneedler: Yes.
DCA... DCAA retrieved the documents from its files and at that... consulted with the FBI, and the FBI said yes, those documents are relevant to the... to the investigation.
At that point, the documents took on the status of being compiled for law enforcement purposes.
In our view, the statute was--
Unknown Speaker: At that point, before the transfer of the documents to the FBI?
Mr. Kneedler: --Yes.
We think that they were compiled even before that.
The Court doesn't have to reach that, that question in this case because in any event by the time the District Court was asked to act in this case the documents had been transferred.
At that point, at the very least, they were... they had the status of being compiled for law enforcement purposes in the files of the second agency, and they were no... they wouldn't have been improperly withheld at that point because the information they contained was compiled by... by the second agency.
Unknown Speaker: Under your approach, though, don't we run into something of an ante litem motem problem?
I mean, can the... the government just undertake this compilation after it knows that the documents are going to be requested?
Mr. Kneedler: Well, as... as long as, as long as the documents become protected at any period of time, the... the exemption applies.
And that... and... and by the same token, if the exemption doesn't apply after a certain period of time.
For example under Exemption 7, if a grand jury investigation terminates, then under Exemption 7(A) that exemption would no longer apply, because the documents are... would no longer be serving the purpose for... for which they were gathered in a pending proceeding.
So, what... what we are saying is that... is that... an investigation is a dynamic thing.
And on... at this case the investigation came in, or the FOIA request came in right in the middle, or actually fairly early in the investigation.
And it's... it's not necessarily true that the investigating agency would have all of the information yet in hand.
And in fact in this case, the FOIA request may well have alerted the agency to particular documents in its possession that were relevant to the investigation.
Unknown Speaker: Mr. Kneedler, why was the transfer to the FBI so promptly made?
Mr. Kneedler: Because they... because, to, to bring them promptly within the control of the FBI because they were relevant to the ongoing investigation.
The... both the... the... the agency that had them and the FBI acted responsibly.
The... the two agencies work, work as a team in an investigation like this.
The FBI doesn't have the expertise, uh, uh, with the details of every program in which fraud or corruption might arise, and so the FBI has to rely on the expertise of the other agencies, in, in this case the auditing agency.
The auditing agency said we want to tell you we have relevant information; and the FBI says you're right, it does, please... please give it to us and we'll send somebody over for it.
And it was done contemporaneously with the denial of the FOIA request.
And... I, I should point out that after the corporation appealed the denial by the, the DCAA through its procedures, that agency stated that the request was being denied because the records were under the control and possession of the FBI.
And that acknowledging--
Unknown Speaker: That is why I asked... that is why I asked the question.
Mr. Kneedler: --Well... but there's no suggestion that this was done to, to avoid complying with the FOIA request.
Unknown Speaker: There... there isn't?
Mr. Kneedler: Uh, I am not aware of any... I mean, that, that argument... that argument could be made, but not for, not for... not for any devious purpose at all.
The records became... came, came to the attention of the investigators, they concluded they were relevant and properly included them within the... within the investigative file.
Unknown Speaker: I have one other... I have one other question.
Has the grand jury ever, ever acted with respect to the corporation?
Mr. Kneedler: --No, the... I'm informed that the investigation is, is still pending, although all of the documents at issue here were submitted to the... to the grand jury after... after they were received by, by the agency.
Unknown Speaker: I take it that, in some circumstances, the audit agency could itself assert this exemption, if it thought a fraud had been committed and it was compiling documents?
Mr. Kneedler: Uh, yes--
Unknown Speaker: In other words, it is not necessary that the FBI be implicated at all?
Mr. Kneedler: --No, no.
In this case... in this case, that makes it especially vivid that the exemption is, is invoked.
But under, under established case law, once an audit or, or an... or a monitoring becomes focused on possible wrongdoing in a, in a specific context, that becomes an investigation.
And that may well occur by, by an auditing agency.
Therefore, I... I would just like to urge the Court not, not to suggest, because it wasn't challenged in this case, that the audit was not... did not have law enforcement purposes.
That is not to suggest that every audit conducted by this agency doesn't have law enforcement--
Unknown Speaker: Was it necessary in this case to find that it was the FBI's request that triggered the exemption?
Mr. Kneedler: --It, it was not, because I think if the... again that makes it vivid, but if... but, but even, even if, even if the DCAA had never... had never consulted with the FBI, that... after it retrieved the documents, looked at them and said we know these are relevant to this ongoing investigation, and denied it on that ground and then transferred them to the FBI, the same result would obtain because--
Unknown Speaker: Well, then, it wasn't the FBI request that triggered the exemption?
Mr. Kneedler: --Well, there was consultation between the two.
The record doesn't disclose who, who... who originated the idea or the decision to withhold them.
But the denial letter says that on the direction and advise of the Assistant United States Attorney the records were denied.
But that is consistent with the relationship of the two agencies in a law enforcement situation.
Under Title 28 the Attorney General is given control over criminal investigations.
Section 533 directs the Attorney General to appoint officials to... investigate and prosecute crimes against the United States; the U.S. attorneys have that responsibility.
And under Section 516, the Department of Justice is given responsibility to litigate cases involving the United States... including securing evidence.
So those statutory provisions at least mean that when there is a criminal investigation going on, that it is entirely proper that the Justice Department be consulted and that the Justice Department have at least a primary say in whether the documents should be withheld.
Unknown Speaker: Mr. Kneedler, it is a very strange result, isn't it, that had the agency complied with the request before consulting with the FBI, or had it decided not to consult, the document would have been openly available to the public.
Or, had the request be... been made before the FBI decided to compile the documents, that... anybody could have gotten the documents?
Mr. Kneedler: No.
Maybe... maybe I misspoke, but at the time... at, at the time the request came in, there was already a criminal investigation going on.
Unknown Speaker: But the documents hadn't been compiled for that criminal investigation, according to your theory.
Mr. Kneedler: Not at the time the request came in, but at the time it was retrieved, and, and its relevance to the investigation was, was identified, at that point the agency categorized it and included it within the... within the--
Unknown Speaker: But at any time before that, the very same document could have gotten out, so that this, this person was just a couple of days too late, perhaps?
Mr. Kneedler: --No, I... I think what... presumably, whenever it was requested, at least after the criminal investigation was initiated, whenever it was requested and had been retrieved by the agency, the same result would have followed.
Unknown Speaker: If the agency consulted the FBI.
Mr. Kneedler: Well, no, as I, as I... as I say, that happened in this case and that makes... that makes it clear, but if the agency on its own said this is relevant to an ongoing investigation, law enforcement investigation, of this corporation, and says... and this had to do with cost overcharges in a particular year, and they retrieved the records and looked at them and say--
Unknown Speaker: What if it had been asked for the day before the investigation was complete... was, was begun, then there is no doubt that the same document could have been obtained?
Mr. Kneedler: --Well, at, at least if an investigation was not begun before there was a response.
Unknown Speaker: So, the document just changes its character from, from having, you know, been compiled.
And you say compiled means gathered and assembled?
Mr. Kneedler: It means gathered, gathered together, assembled--
Unknown Speaker: And that is the only thing it can mean?
Mr. Kneedler: --Well, it can mean... well, it... I suppose it could mean shuffling documents together in a file.
Unknown Speaker: Suppose I say he compiled a wonderful pitching record, you know, a particular athlete compiled a wonderful pitching record.
Do you think that would describe his... I don't know, getting... cutting out of newspapers--
Mr. Kneedler: No, no, no.
Unknown Speaker: --and a lot of pitching records of other pitchers and, and gathering them all together?
Mr. Kneedler: No, no, what I... and that's--
Unknown Speaker: It means he produced it, right, didn't he?
He accomplished it himself.
Can't it bear that meaning?
Mr. Kneedler: --It could bear that meaning, but, but looking at it in the context of, of what FOIA is, is aimed at, which is... which is, I think, the, the important thing, these, these were records that were categorized by both the FBI and DCAA as being relevant to the law enforcement investigation.
Unknown Speaker: Mr. Kneedler, there's another requirement for this exemption, and namely it has to interfere, be reasonably understood to interfere with a--
Mr. Kneedler: Right, and that's--
Unknown Speaker: --and if these documents had been requested before any investigation had been started, it would be awfully hard to say it was interfering with the investigation.
Mr. Kneedler: --Right.
So, so under, under... under either that specific requirement of 7(A) or the threshold--
Unknown Speaker: Well, what was the reasonable... what was the reasonable possibility of interference with an investigation here?
The, the requesting party must have had copies of them already.
Mr. Kneedler: --Well, we don't know what it had... we don't know what it had copies of.
A lot of... a lot of the documents--
Unknown Speaker: Well, they were the, they were the... they were the parties to the correspondence, initially.
Mr. Kneedler: --That is true, but, but in the... a lot of the documents, a very substantial amount of the documents in a case such as this by an auditing agency like DCAA, are... all, all of the audit work papers that the agency itself generates.
It could involve, in, in, in a typical case it could involve interviews with witnesses, it could involve--
Unknown Speaker: So, it involved more documents than just the initial correspondence?
Mr. Kneedler: --Oh, absolutely.
And the initial correspondence is in the record.
The... the Respondent has the initial correspondence.
He is just trying to look behind at the information that he doesn't have.
If he already had these documents he wouldn't be requesting... it wouldn't be requested.
Unknown Speaker: I don't understand this exchange.
Are you asserting that in addition to meeting... to meeting D, you have to meet A?
Mr. Kneedler: No, no, what--
Unknown Speaker: You wouldn't have to show that these documents could reasonably be expected to interfere with enforcement proceedings.
You wouldn't have to show that, if--
Mr. Kneedler: --If one of the other exemptions--
Unknown Speaker: --if the one you are arguing applied: D.
That is what we're arguing about.
Mr. Kneedler: --No, we are arguing principally A here, not D.
We are arguing interference with the... with the ongoing investigation.
Unknown Speaker: Oh, you are not arguing... well, for that you don't have to show it was compiled, do you?
You don't have to show that it was compiled by a criminal law enforcement authority.
A doesn't require compilation by a criminal law enforcement authority.
Mr. Kneedler: Not by a criminal law enforcement authority, but--
Unknown Speaker: So, what are we arguing about this for?
Mr. Kneedler: --No, but the, the threshold, it, it has... the, the... all of Exemption 7 has an additional threshold, which is that the Act doesn't apply to records or information compiled for law enforcement purposes.
And then each of the subparagraphs follows.
There is separate requirement for a law enforcement investigation agency.
Unknown Speaker: I see.
I thought it always had to be compiled for law enforcement purposes--
Mr. Kneedler: Yes, that's... that's true.
Unknown Speaker: --plus, it has to meet A, B, C, or D.
Mr. Kneedler: Right, and the protection against any, any suggestion of, of overreaching or abuse is to check to see whether the particular record or information satisfies one of the substantive of harms that Congress was concerned about.
In, in... in Abramson this Court said, in, in construing this exact compiled-for-law-enforcement-purposes provision, said it is critical that the compiled-for-law-enforcement requirement be construed to avoid the release of information that would produce the undesirable result specified.
And... in other words, the Court said that the exemption has to be construed in a coherent manner, so that, so that information the Congress was especially concerned about wouldn't fall between the cracks.
And I think it is significant in this regard that Congress in 1986, after Abramson, amended Exemption 7(A) and, and... to provide not simply that records compiled for law enforcement purposes, but also information compiled for law enforcement purposes, could be withheld.
And it was the absence of the word information that was of significance to the dissenters in Abramson because the Act at that point only referred to records.
And in fact the pertinent Senate report, as this Court recognized in, in Reporters Committee, was one prepared in 1983, specifically endorses Abram... Abramson and says that these amendments which were intended to ease the burden of law enforcement agencies were
"intended to ensure that sensitive law enforcement information is protected under Exemption 7 regardless of the particular format or record in which... in which the record is maintained. "
So, it is obvious that Congress was endorsing the view that this Court took in Abramson, that it is necessary to focus on whether the information that is at issue would produce, as long as it is categorized or identified for law enforcement purposes, would produce one of the six enumerated harms.
Unknown Speaker: What did the District Court... excuse me.
Abramson was five to four decision, as so many are.
Is what you have just said the answer to this question?
Could those of us in the dissent in Abramson vote in your favor here--
Mr. Kneedler: Yes.
Unknown Speaker: --and be consistent with that?
Mr. Kneedler: Yes.
That is what I was attempting to say.
That the addition of the word information... the absence of the word information was of particular relevance to the dissenters in Abramson, as I read those opinions, and Congress expanded the definition specifically to include information.
And here, there is, is no doubt that the information contained in these records is now compiled by the FBI.
Now, copies of several... of some pages of the documents were retained by DCAA when the entire batch was sent to the FBI, but that doesn't detract from the fact that the information has the status of being compiled for law enforcement purposes.
Unknown Speaker: Mr. Kneedler, do you think the District Judge made the findings that there was... that you asked for, in regard to subsection A, B, or C?
Is there a finding that the records could reasonably be... a disclosure could reasonably be expected to interfere with enforcement proceedings?
Mr. Kneedler: Well, what the District Court said was that the... that the... that production of the records or information would jeopardize, could reasonably be expected to jeopardize the grand jury investigation.
Unknown Speaker: I don't understand that.
Mr. Kneedler: Well, I... I think... I--
Unknown Speaker: What does that mean in practical terms?
How could the disclosure of these records interfere with the grand jury proceedings?
Mr. Kneedler: --I think... I think by grand jury investigation the District Court meant the entire investigation under the control of the Assistant United States Attorney, which included the submission of these, these documents to the grand jury.
I mean, these documents were submitted some time ago, the investigation is ongoing, and the Vaughn index and interrogatories that were prepared in this case were submitted under, under seal.
They are filed with the clerk of this Court.
That... the Vaughn index explains in considerable detail how the disclosure of these records would interfere with the, with the investigation.
And this Court in, in other contexts has recognized a number of ways in which that might happen.
In, in Robbins Tire, for example with witness statements, the Court recognized that premature disclosure of witness statements could lead to intimidation or correction of the stories of witnesses.
The disclosure of--
Unknown Speaker: We don't have that... danger here, do we?
Mr. Kneedler: --Well, I mean, I can't... yes, I, I... there... the Assistant United States Attorney in a public affidavit in, in support of a stay did say that the... that the records might disclose the identities of witnesses, and there is always the possibility that witnesses' testimonies... witnesses' testimony could be coached in a way that would interfere with an investigation.
The disclosure of the records would also show the direction and, and strategy of the investigation.
It would show what documents the government had and, perhaps more significantly, what it didn't have.
Unknown Speaker: It wouldn't show the direction or strategy of the... of the investigation unless you were foolish enough to tell the person when the person got them that these had been compiled for law enforcement purposes.
If you didn't tell them that they were part of the investigation file the person wouldn't have any more reason to believe that this was part of the investigation than any other document received under FOIA.
Mr. Kneedler: Well, I think in the typical case, precisely because the FBI and DCAA do work as a team, or the FBI and whatever agency work as a team, the requestor could reasonably expect that the... that the records in the hands of one of the agencies either are or soon will be part of the... part of the investigation.
Unknown Speaker: Maybe, but it wouldn't, wouldn't indicate the direction of the investigation.
You don't know whether the investigators--
Mr. Kneedler: Well, it would show what records--
Unknown Speaker: --Records they had--
Mr. Kneedler: --the government had at its, its disposal.
Unknown Speaker: --That is so, but so, so would any FOIA... any FOIA request.
So every document that you turn over fits, fits the definition of A, then.
Mr. Kneedler: But that has been one of the principal purposes of protecting what... of Exemption 7(A), which is designed to prevent premature discovery, as was particularly recognized in, in Robbins Tire... discovery that precedes the time that it is provided for under the rules of the applicable proceeding.
Unknown Speaker: Mr. Kneedler, I am still interested in the word compiled now.
The prologue to 7 speaks of records compiled, but later on 7(D) uses the same terminology, it says in the case of a record compiled.
Now, under the Freedom of Information Act, a record can mean a single document, can't it, a single... unlike files, it means a single piece of paper is a record.
Mr. Kneedler: Well, not necessarily a single piece of paper.
It could mean a document which would have a number of--
Unknown Speaker: Yes, but it could mean a single piece of paper, too, couldn't it?
Mr. Kneedler: --It could mean, yes.
Unknown Speaker: Now, how do you compile a single piece of paper, except in the sense that I used the word compile?
Mr. Kneedler: Well, I, I, I think that's one of the... the... that's a good example of why the word compiled has to be given a meaning that comports with the overall purposes of the statute, which is that once a particular document has become the subject matter or included in the subject matter of the investigation, that it is compiled.
Unknown Speaker: It may mean produced.
Why wouldn't that be in accord?
If, if you interpret compile the way you just have, would you... would you say that a document that is exempt under 7(D) would lose its status after the investigation is terminated and the compilation is broken up?
Mr. Kneedler: Well, not... when, when you're speaking... when you're speaking of a confidential source, which is what D does, that protection extends... in fact, it is one of the principal purposes.
It has to extend beyond the time of the investigation.
Unknown Speaker: I, I agree with that, but I don't know how you could extend the extension beyond the break-up of the criminal investigation if the only thing that causes it to be a record compiled is the gathering together of it for a criminal investigation.
Mr. Kneedler: But, but one of--
Unknown Speaker: I think you are shooting yourself in the foot.
Mr. Kneedler: --D will terminate as soon as the compilation is eliminated.
No, the investigation terminates, but under this Court's decision in Abramson, once the documents are originally... or become compiled, attain the status of being compiled for law enforcement purposes, at that point, they continue their protection even beyond that point, and it is critical that they do so.
Unknown Speaker: Mr. Kneedler, what is the difference between compiled and filed?
Mr. Kneedler: Compiled and filed?
Unknown Speaker: Yes.
Mr. Kneedler: I think in many cases there may not be any.
I think the work... word... I think the word filed--
Unknown Speaker: Well, why did they use filed here?
Mr. Kneedler: --Uh, I'm, I'm not sure why they did.
I think compiled has a... compiled has a broader connotation that suggests the categorization of the records, rather than the physical act of putting them in a file.
Unknown Speaker: Before you sit down, I would like to get back to the Chief Justice's question.
Who asked for the John Doe designation?
Mr. Kneedler: It is my understanding that the Respondent asked for it.
Unknown Speaker: Your understanding.
Do the records show it?
Mr. Kneedler: Uh, uh, yes, I, I think it does.
I, I'm sorry, I don't specifically recall.
I think it was the Respondent.
Unknown Speaker: You don't think it is important as to who asked for it?
Mr. Kneedler: We have no objection to, to lifting it, and, and, we never have, particularly with respect to our, our agencies.
Unknown Speaker: I don't see how you can have any objection does [inaudible] in any record.
Mr. Kneedler: Well, we have no... we have no objection to disclosing the names of, of the particular agencies.
Unknown Speaker: But the government did ask for it, didn't it?
Mr. Kneedler: I don't think we... I don't think we asked for the... I could be wrong, but I don't think we asked for the, for the protection of the, of the two agencies, because we would not normally care about the... about the disclosure of the identity agencies.
If there are no further questions, I will save the balance of my time for rebuttal.
Unknown Speaker: Mr. Eisenberg.
Would you enlighten us, Mr. Eisenberg, what you know about the designation requirement of John Does in this case?
Argument of Milton Eisenberg
Mr. Eisenberg: Your Honor, we, the corporation, requested that the records be sealed after an affidavit was filed by the Assistant United States Attorney which... a public affidavit in the FOIA case, which disclosed for the first time, by name, the subject of a grand jury investigation.
And because we didn't know what was going to come after that affidavit... it turns out that is the only affidavit on the facts ever submitted in this case.
But because we didn't know what was coming next, we asked under Rule 6(e), that the records in the case be placed under seal.
We did not ask for this designation of the caption, and have never thought it made any difference whether the defendant agencies are identified by their name or by some John Doe reference--
Unknown Speaker: Well, how about the name of your client?
Mr. Eisenberg: --We do... we do not, since the government has also just volunteered that the grand jury investigation is continuing, we do not believe that the client's... the subject of the investigation's name should be identified in the caption or in--
Unknown Speaker: You don't think litigation in federal courts under FOIA is a matter of, of public... public notice?
Mr. Eisenberg: --Your Honor, I don't want to make an issue of this because, in fact, this is a public corporation which has disclosed in numerous SEC filings all of the details with respect to this investigation of which it is aware.
From documents like the affidavit in this case, there is no secret of who the corporation is and... but the reason... I just want the Court to understand that the only reason we had for requesting that the... any portion of the case be kept in confidence was because the initial affidavit for the first time disclosed the name, by name, that this corporation was under grand jury investigation and under Rule 6, there's specific provision for placing under seal matters affecting the grand jury.
Unknown Speaker: Thank you.
But, but you have no objection to the disclosure of the name of the company now?
Mr. Eisenberg: Your Honor, we... the, the name of the company has been disclosed in the media.
It has been disclosed--
Unknown Speaker: Well, but do you have any--
Mr. Eisenberg: --in SEC proceedings.
Unknown Speaker: --Suppose we asked you if we could amend the caption to the--
Mr. Eisenberg: --Yes, I have no objection to the Court amending the caption, if it finds that more efficient or useful in the Court's discussion of the case or decision in the case.
Unknown Speaker: --If we have a lot of cases called John Doe v. John Doe it will be hard to refer to them, you know.
Mr. Eisenberg: Yes, Your Honor, but there are... there are quite a few of them already, I believe.
We have wandered somewhat from the record in this case in the course of the government's presentation of the facts.
I would like to emphasize, as I just have, that there is only one affidavit on the facts in the record in this case.
And it appears on page 60 and 61 of the joint appendix.
It's an affidavit submitted by an Assistant United States Attorney, named Sean O'Shea, who was the grand jury attorney.
And it states all the facts that were in this record when the District Court made its decision and when the Court of Appeals made its decision, with one qualification.
There were a number of exhibits attached to the government's answer to the complaint, which are also in the record.
And all that he says about the facts is that the documents in this case were removed from the DCAA by the FBI for the purpose of presenting them to a grand jury, that the documents were compiled by the DCAA.
There is no statement in this affidavit or in any subsequent affidavit that they were ever compiled by the FBI or recompiled by the FBI, or that they were compiled by the DCAA for any law enforcement purpose.
It is clear from the affidavit that they were compiled in the normal routine of the agency's performance of its oversight functions, in this case, reviewing contractor charging practices under government defense contracts.
There is no suggestion in this affidavit or in any other affidavit that the DCAA was cooperating in a law enforcement investigation with the FBI at any time.
What the record establishes, and this now is mainly through the exhibits and some affidavits that were submitted after the court decisions in connection with stay motions and the like, is that these documents were generated in 1978 by the DCAA in connection with one of these routine government contract audits, that they were in the DCAA's files for eight years after that, in fact in dead storage.
The first response to the request to the DCAA for the documents is give us more time to locate them; they are very old.
Obviously, they were not being used for any law enforcement purpose at that time.
They were used for archival purposes.
They were sitting in the dead files of the DCAA.
There is no suggestion any place in this record that at any time after they were retrieved from dead storage and withheld from the requestor, the corporation, that they assumed a law enforcement purposes in the DCAA's possession.
What the DCAA said when they denied production of the documents was the FBI, in fact an Assistant United States Attorney, whom they designate by name, Mr. Milton, has directed us to withhold these documents.
Therefore, we can't give them to you.
And in a later... and, and there is in the record the letter from the DCAA to the same Assistant U.S. Attorney, in which they say to the U.S. Attorney, since you have now directed us to withhold these documents and you have possession of them, will you handle this appeal that the corporation is filing.
No indication of any cooperation, joint effort, consultation.
This was the FBI saying to the DCAA, don't comply with this FOIA request.
We don't want you to give any of these documents to this corporation, and then seizing them from the DCAA and saying, in the affidavit they filed, we are going to present them to a grand jury; therefore for that reason, because these are going to be grand jury materials, you should not disclose them to this corporation.
Unknown Speaker: Assuming that all happened, though, the way you said, and I don't doubt it, Mr. Eisenberg, how, how does that advance your case?
Mr. Eisenberg: --I, I think it, it, it should be decisive, Your Honor, because the critical time in any case for determining whether documents have been compiled for a law enforcement purpose has to be the time the documents are requested or, at least, the time when the request is denied by the agency.
Unknown Speaker: Why is that so?
It is certainly not the case for classified documents, for example.
It is well established that you can classify a document after the request is made and then decline the request on the basis that it is classified.
Why should this be any different?
Mr. Eisenberg: Well, then, it's... it's the very differences, Your Honor, between Exemption 1 and Exemption 7, that I think make it clear why that should not be the case under Exemption 7.
Under Exemption 1, which applies to documents relating to national security, the exemption incorporates by reference an executive order.
The classification of documents depends on what the executive order permits and provides for.
Those documents contain state secrets.
It makes no difference to their status when or for what purpose they were generated, or where they are located.
Unknown Speaker: But just because something is classifiable under the executive order does not mean that it is classified.
Many things that are classifiable are not classified.
Mr. Eisenberg: Yes, Your Honor, but the--
Unknown Speaker: Isn't that right?
And you acknowledge that you can classify them after the FOIA request and then deny the request, saying this is a classified document.
Mr. Eisenberg: --That is all, al true, Your Honor, under Exemption 1, but the reason for it is that the executive order incorporated specifically into the statutory exemption provides that documents may be classified or reclassified after a request is made under FOIA.
Unknown Speaker: Well, Mr. Eisenberg, doesn't the statute for Exemption 7 give the agency a ten-day period, which can be expanded if needed, in order to respond and in order to determine whether the records should be compiled for law enforcement purposes?
Mr. Eisenberg: I... I'm not sure that the ten-day period is in order to determine whether the documents should, at some point after the request, be compiled, but--
Unknown Speaker: Well, that is an interpretation one could place upon the statute, isn't it?
Mr. Eisenberg: --Yes, yes.
Your Honor, that such interpretation could be placed on it.
But nothing happened here within that ten-day period to suggest that--
Unknown Speaker: But that isn't the... that certainly isn't the interpretation the Court of Appeals embraced.
The Court of Appeals said they either had to be initially compiled for law enforcement purposes, when they were first created.
Do you defend that rationale?
Mr. Eisenberg: --Your Honor, I not only defend it, I defend it happily and heartily, but that is--
Unknown Speaker: Well, that certainly eliminates this construction that you just said was one possible reading of the rule.
Mr. Eisenberg: --Your Honor, we have to put the Court of Appeals' opinion in its proper context, and that depends on the posture of the case when it was considered by the Court of Appeals.
The government did not present any Exemption 7 argument to the Court of Appeals.
The government's argument in the Court of Appeals was that Exemption 3 protected these documents from disclosure, because Rule 6(e) is a statute for Exemption E purposes.
And because these are now grand jury documents, Exemption 3 is the exemption that the Court of Appeals should focus on in determining whether they should be withheld.
That is what the Court of Appeals did.
Unknown Speaker: Yes, but the Court of Appeals certainly addressed the... the requirement as to... of the documents being compiled.
Mr. Eisenberg: Your Honor, it addressed it because the District Court, without making any determination that these documents had ever been compiled for law enforcement purposes, relied on Exemption 7 for his conclusion that their disclosure would interfere with the grand jury proceedings.
Unknown Speaker: Well, that is the decision the Court of Appeals was reviewing.
Mr. Eisenberg: It, it reviewed that decision, Your Honor, but I think in fairness--
Unknown Speaker: Then something is wrong.
Mr. Eisenberg: --Well, let me, let me... I want to make a full response to the Court's question, because that is a decision the Court must decide, this Court must decide, whether to affirm or reverse.
The government, relying on Exemption 3 in the Court of Appeals, could make all of the same arguments for not disclosing these documents because they were grand jury materials, without having to meet any threshold requirement.
And since they had made no record in the trial court and there was no record in the Court of Appeals suggesting remotely any of the things that have been suggested in the Supreme Court as the factual basis for such a determination, the, the government had a way of defending the withholding of the documents that avoided entirely the issue that Justice White has directed attention to: whether they were compiled for law enforcement.
Having made that tactical decision and lost on the Exemption 7 justification advance in the... I'm sorry, lost on the Exemption 3 justification advanced in the Court of Appeals, I don't think that adds any weight to the argument... to the attempt now to relitigate the same factual issue, whether, because these documents were presented to a grand jury, we should now focus on Exemption 7.
They didn't rely on Exemption 7 in the Court of Appeals--
Unknown Speaker: Well, that is the question presented in their petition for certiorari.
Mr. Eisenberg: --Yes, Your Honor, and we--
Unknown Speaker: And the Court of Appeals passed on it.
Mr. Eisenberg: --No, Your Honor, the Court of Appeals did not pass on it.
Unknown Speaker: I thought the Court of Appeals did pass on the Exemption 7.
Mr. Eisenberg: Oh, it considers Exemption 7, Your Honor, in this context: It says that the trial court relied on Exemption 7.
The trial court did not make any determination, any finding, with regard to whether the records were compiled.
That finding is essential for Exemption 7 to have any application.
Obviously, in this case, they weren't compiled for law enforcement purposes.
They were eight years old.
They were compiled prior to and independently of any law enforcement investigation.
They were in the dead files of the DCAA when they were requested.
They were not taken by the FBI or for presentation for any purpose until after that request--
Unknown Speaker: Mr. Eisenberg, in your brief in opposition to the petition for certiorari, your reasons for denying the writ... you give three reasons: There is no conflict in the Court of Appeals, the facts here are unique because the records were eight years old and the decision faithfully adheres to the language of the statute's legislative history.
Now, our cases require that if you are going to make a point that we can't reach the question presented by the, by the Petitioner, you must make it in your brief in opposition or it is deemed waived.
Mr. Eisenberg: --We, we're not suggesting that you can't reach the point, Your Honor.
We are suggesting only that the Court of Appeals did not make the broad ruling that Justice White--
Unknown Speaker: Well, here is a section in the Court of Appeals opinion that is headed up, Application of FOIA subsection (b)(7).
And it goes right ahead and concludes that the (b)(7) is not available.
Mr. Eisenberg: --Yes, Your Honor, and I am giving you the reason that the Court of Appeals gave.
The reason the Court of Appeals gave is that the only evidence in this record is that these documents were compiled by the DCAA.
That no record exists for any finding that they were subsequently or at any other time compiled or recompiled--
Unknown Speaker: Hold it there.
That unless they were compiled at... eight, eight years ago for some law enforcement purposes, they couldn't be compiled later for that purpose.
Mr. Eisenberg: --No, Your Honor, what the Court of Appeals said on that subject is that merely taking records that are not exempt under any of the statutory exemptions in the Freedom of Information Act and co-mingling them with a investigative file was not a basis for saying that those non-exempt records had acquired the exemption that applied to other records in that exempt file.
In so stating, all the, all the court of appeals was doing, in Judge Winter's opinion was paraphrasing this Court's decisions in Abramson and... and Robbins.
It was not making new law.
Unknown Speaker: The Court of Appeals says that... that a government entity cannot withhold materials requested under FOIA on the ground that materials that were not investigatory records when compiled have since acquired investigative significance.
Mr. Eisenberg: Yes, Your Honor, and it goes on to quote the Robbins and Abramson language construing the same compiled-for-law-enforcement-purposes language.
Unknown Speaker: That is really an argument... that, that is your argument on the merits really, why, why the government shouldn't prevail in its interpretation of Rule 7.
Mr. Eisenberg: Yes, Your Honor, it is our argument on the--
Unknown Speaker: So, you are defending against the question presented in the Petition.
Mr. Eisenberg: --That, that's right.
We are not suggesting that the Court can't reach the question.
We are suggesting that on the record in this case there is only one answer to that question.
And the answer is that on the record in this case, there is absolutely no evidence that these documents were compiled for law enforcement purposes by the DCAA or thereafter by any other agency.
Unknown Speaker: So, so say... you suggest that if the records show that the FBI requested these records and said to the agency, please find these records, we think they might be relevant, and the agency says well, here they are, and the FBI says they are relevant, send them over, you would say there is then evidence of, of their being compiled for law enforcement purposes?
Mr. Eisenberg: --If, if that happened, if the FBI initiated the request because it had some reason to believe that, I would not say that merely removing otherwise non-exempt files would--
Unknown Speaker: But if all of that happened then the compilation requirement would be satisfied?
Mr. Eisenberg: --No, Your Honor.
That would not be a compilation.
That would be taking files from one place and relocating them to another place.
Let me... let me give you--
Unknown Speaker: Well, why shouldn't we give the word compiled its ordinary meaning, which certainly could encompass gathering up and assembling some records and sending them over to the FBI?
I, I mean, that would certainly be a plain, ordinary meaning of the word compiled.
Mr. Eisenberg: --Well, the, the government cited us to Webster's New Collegiate Dictionary for what it claimed were the ordinary meanings of the term to compile.
None of the definitions they cited included to seize, to transfer, to take custody of, to remove or to co-mingle.
And none of the definitions--
Unknown Speaker: How about to gather up and assemble?
Mr. Eisenberg: --Not in Webster's.
They did find in the third... in the reply brief, which we have not been able to respond to, they did find the third definition in Random House, the definition of compile as meaning gathering, for which the example given is the example Justice Scalia suggests.
Compiling data, that is the example given.
Random House says that the definitions in its dictionary are listed in a prescribed order.
The ordinary usage of the term is listed first, in speech or in any other usage.
And the more rare, archaic, technical usages are listed thereafter.
This is the third or fourth usages.
And it... and it, it's compiling data that is the example.
It is not simply relocating documents from one place to another place.
They could... the, the Congress could have said gathered up, it could have said used for law enforcement purpose, it could have said obtained for law enforcement... there are so... obtained for law enforcement purpose.
There are so many words it could have used.
But it chose one that has a very precise meaning, I have discovered since this case was briefed, in all of the dictionaries we have consulted.
And it is not the equivalent of what the FBI did in this case, whether they did it on their own initiative, in consultation with, or because they wanted to thwart the corporation's access to these records.
Unknown Speaker: Mr. Eisenberg, it is your position that if these records were originally engendered, or to use some word other than compiled,--
--put together, by DCAA eight years ago, and clearly, at that time, they were not for law enforcement purposes, they can never later attain the status of being compiled for law enforcement's purposes?
Mr. Eisenberg: No, Your Honor, that... that's... there is some law to that effect, but that position is not the position we have taken in our brief.
Because within the... there are cases like Crowell & Moring, for example, in which the audit report itself is the impetus for the law enforcement investigation.
And it is still within the agency's possession and control.
Obviously, that is a totally different situation than that in which the documents are not being used at any time by the agency for law enforcement purposes.
So I am not saying that there has to be an FBI removal in order for all agency documents to meet the threshold requirement.
Unknown Speaker: Well, could, could an agency that is not engaged in law enforcement compile documents which later would be said to be compiled for law enforcement purposes because the FBI or some other law enforcement agency needs them to prosecute someone?
Mr. Eisenberg: Well, I... it... it's very hard to deal with that in the abstract, without specific facts and documents--
Unknown Speaker: It, it could... you don't rule it out... you don't rule it out in the abstract?
Mr. Eisenberg: --But the court of appeals did not rule it out in the abstract; we do not rule it out in the abstract.
But in this case, there is no evidence that that ever happened.
And based on--
Unknown Speaker: Is, is the answer you gave to the Chief Justice consistent with the rationale of the Court of Appeals?
Mr. Eisenberg: --I... I it's entirely... consistent.
Unknown Speaker: It seems to me that it isn't, because I thought the Court of Appeals said they were created before the investigation and that ends the case.
Mr. Eisenberg: --That's what the Court of Appeals said, Justice Kennedy, in finding that these documents were compiled by the DCAA for non-law enforcement purposes.
It does not say that, because of that, they either could subsequently or could not subsequently be recompiled by any other agency, including the DCAA, for law enforcement purposes.
What they say is that there is no evidence, there is no record in this case, there is no argument in this case, there is no issue in this case as to whether that happened, because the government never asserted that.
Unknown Speaker: Mr. Eisenberg, I don't think that is a fair reading of the opinion.
They say the documents were compiled in '78 by this agency, seven years before any law enforcement agency got involved.
And then it says, they were thus not compiled for law enforcement purposes within the meaning... they, they say that is enough to--
Mr. Eisenberg: By that agency, the DCAA.
That is the finding that they are making.
Unknown Speaker: --No, that's not.
They were thus not (b)(7).
Mr. Eisenberg: Your Honor, if it has--
Unknown Speaker: So they were not compiled by anybody is what their holding is.
Mr. Eisenberg: --And that is why I think context and posture is so important.
There was no argument in the Court of Appeals by the government--
Unknown Speaker: Well, I understand your point there.
Mr. Eisenberg: --that they'd been, so the court--
Unknown Speaker: But, but their reasoning is that since they were compiled by a non law enforcement agency for a non-law enforcement purpose, and that' all the record shows, that's the end of the ball game.
That's what they say.
Mr. Eisenberg: --On this record, in light of these arguments and the government's position in the Court of Appeals, yes.
Not for all purposes, under all circumstances, in other cases where a different record is made.
Unknown Speaker: This is a good deal less significant than we thought it was, I suppose, when we granted cert--
Mr. Eisenberg: I, I, I... I'm honored--
Unknown Speaker: We are just reviewing whether they were, indeed, gathered, right?
You are willing to say you can gather them; they just weren't gathered here.
Is that it?
Mr. Eisenberg: --Your Honor, I am honored to be here at the first argument of the first day of the Court's new term, but I have no idea why this case should lead off the Court's new term.
It has no significance on the record in this case as the construction of these key words.
We point out in our brief that the government demeans Professor Howe's compilation of the Holmes-Laski Letters in his famous work by comparing it to what the FBI did in this case when it removed custody of these documents from the DCAA.
But let us, let us assume for a moment that instead of publishing this historic work, what Professor Howe did was this: He learned that someone else was on the trail of Justice Holmes' letters.
So first, he directed Justice Holmes not to disclose them to someone else or anybody else.
And then he appeared in Justice Holmes' chambers and removed the letters from Justice Holmes so that no member of the public could thereafter have access to them.
We might call such high-handed conduct by many names, but I don't think any of them would be compilation.
Without sugarcoating it, that is just what the FBI did in this case.
By doing that, they thwarted the administrative process in this... in all FOIA cases, and they did it without any of the justifications in an executive order, such as apply to Exemption 1 cases, which specifically authorize that kind of process.
After an FOIA request is filed, by the explicit terms of the executive order, a document may be classified or reclassified.
That is not the case with respect to any of the other exemptions, and the fact that they had to say in an executive order documents can be classified or reclassified.
This... there is nothing about compiling or recompiling in Exemption 7 means that... if they had just said classified, they would not have assumed that classify meant classified or reclassified.
You wouldn't have to use both words if the government's interpretation of Exemption 7 have merit.
If I may borrow a phrase from the government's Reply Brief, it would trivialize Exemption 7's threshold test, to equate the conduct in this case with the compilation of information or records for law enforcement purpose.
Despite the focus on semantics and grammar in briefs, the argument between the corporation and the government is not just over words.
What the government really is concerned about is the ability of the subject... of a subject of an investigation to obtain any information, any evidence that might be useful to the subject of the investigation which he could not obtain prior to or unless he is indicted under the federal rules of criminal procedure.
It's because of those provisions in Exemption 7 that the President vetoed the 1974 bill, that the Attorney General testified, strenuously opposed it, and the FBI was apoplectic.
Prosecutors much prefer a system under which they can carry on their investigations with two, three or, in this case, over four years, this investigation, we are told, has been in progress, while the subjects are on standby, and then make whatever disclosures the federal rules permit in the 70 days between arraignment and trial, and as close to trial as they can make it in any particular case.
As North v. Walsh, which we discussed in our supplemental brief, points out, the Department of Justice has, in fact, again proposed an amendment which would prohibit use of the FOIA as a discovery device.
But Congress has not adopted that amendment.
And what it adopted, over the strenuous objections of the Department of Justice in 1974, which is language which contains no such limitation.
Having failed before Congress, the government would like an interpretation of Exemption 7's threshold requirement from this Court that would nullify its significance.
But to prevail in this case the government must stretch the facts beyond recognition, write its own dictionaries and rules of grammar, and convince the Court to rewrite the language of the statute and its legislative history, since, in our view, there is also no record in this case.
Unknown Speaker: Thank you, Mr. Eisenberg.
Your time has expired.
Mr. Kneedler, do you have rebuttal?
Rebuttal of Edwin S. Kneedler
Mr. Kneedler: I do, Mr. Chief Justice.
Unknown Speaker: You have four minutes.
Mr. Kneedler: Thank you.
There are several points I'd like to bring to the... to the Court's attention in, in the discussion that is focused on the word compiled.
I think it is important to understand what Congress was driving at and what it... what the responsible agencies understood Congress to be driving at.
Because, as this Court said in Abramson, Exemption 7 is, is an exemption of substance and not one of technicalities.
The first... the first thing I want to point out is a passage from the Attorney General's memorandum, page 6 of the Attorney General's memorandum on the 1974 amendments to FOIA, which is discussed in the District Court's opinion in Hatcher, which is discussed in the briefs, and it's the same page of the Attorney General's memorandum that was discussed by this Court in footnote 5 of Abramson.
And there the Court says... or there the Attorney General, in explaining the recently enacted... amendments, states that although ordinarily records used in monitoring agencies would not... or activities, would not be covered by Exemption 7, it then continues to say except where the purpose for which the records are held and used by the agency becomes substantially violation oriented, i.e., becomes refocused on preventing, discovering or applying sanctions against non-compliance with federal statutes or regulations.
So here we have a contemporaneous construction of the statute by the Attorney General in a memorandum that this Court has relied upon and agencies have relied on ever since, saying that the status of records, once they become refocused on a... on an exemption, is relevant.
The second thing is, in the legislative history Senator Philip Hart of Michigan, who was the sponsor of the amendment, described the threshold in the same sort of pragmatic terms in the same passage, another portion of which the Court discussed in Robbins Tire.
The... Senator Hart said that the amendment is broadly written, but he wanted to point out that the material cannot be exempt merely because it can be categorized, he used that word, as an investigatory file.
You also have to prove one of the six harms.
But he did use the word categorized, which is exactly the concept that we are trying to... explain is what the... what the amendment refers to.
And then he says in broad terms, the amendment... the exemption would apply whenever the government's case in court, a concrete prospective law enforcement proceeding, would be harmed by the premature release of evidence or information not in the possession of known or--
Unknown Speaker: Mr. Kneedler, if you read it that broadly really... your reading is that records or information in the possession of a law enforcement agency if it meets any other--
Mr. Kneedler: --No, it has... it has... it has to be focused on a particular, under, under 7(a) it would have to be focused on a particular law enforcement proceeding or investigation.
Unknown Speaker: --I understand, but as long as it is in the possession of an agency and meets some... any of the six other requirements, you would say it had been compiled.
Mr. Kneedler: It, it would have to be... it would have to be in the possession for law enforcement purposes.
Unknown Speaker: Well, I understand.
Mr. Kneedler: In other words, in, in DCAA they would have a lot of information but once it becomes refocused--
Unknown Speaker: Right, but compiled means in possession of, I think in your, your definition?
Mr. Kneedler: --No, it doesn't... well, compiled, compiled, compiled means--
Unknown Speaker: In your view, could anything in the possession of the agency for law enforcement purposes that meets these requirements not be compiled within the meaning of the statute?
Mr. Kneedler: --No, there... there, there also has to be an affirmative designation or selection of the document, or listing, identification of the document as germane to the law enforcement investigation.
And that, and that is exactly what happened here in response during the ten-day period when the agency had to decide whether to release it or, or keep it.
It concluded that it was relevant to the investigation.
So that is the length that is necessary.
Unknown Speaker: So under your theory, an agency could issue, the FBI could issue a notice to all agencies in the government saying X corporation is under investigation, we are interested in what kind of... what kind of... FOIA documents this corporation is trying to get in, in anticipating defense of this suit.
Therefore, whenever you get a FOIA request from this corporation let us know and we want to, we want to see the document, because it is relevant to our investigation.
Mr. Kneedler: No, it... it... it's... first of all, a court may be able to examine those facts and see whether it is sufficiently relevant to a concrete, focused investigation.
And secondly, the harms that Exemption 7 are designed to protect against is the principal protection against an overbroad application of the exemption.
Chief Justice Rehnquist: Thank you, Mr. Kneedler.
The case is submitted.