Church of Scientology of California, a Non-profitcorporation, Plaintiff-appellant, v. United States Postal Service, Benjamin Bailer, Postmastergeneral, Postal Inspection Service, William J.cotter, Chief Inspector, Defendants-appellees, 593 F.2d 902 (9th Cir. 1979)

Honorable William G. East, Senior District Judge, District of Oregon, sitting by designation

The Postal Reorganization Act, 39 U.S.C. § 101 Et seq., extended the reach of the FOIA, 5 U.S.C. § 552, to the newly created Postal Service. 39 U.S.C. § 410(b) (1). Pursuant thereto, the appellant requested that the Postal Service provide it with certain records, in accordance with 5 U.S.C. § 552(a) (3), which reads in pertinent part:

(a)

(3) . . . each agency, upon any request for records which (A) reasonably describes such records and (B) is made in accordance with published rules . . . shall make the records promptly available to any person.

The Postal Service also resisted disclosing an additional fourteen pages of materials, contending that release of the information would constitute a clearly unwarranted invasion of personal privacy within the meaning of 5 U.S.C. § 552(b) (6) (Exemption 6). At oral argument, the Government's attorney represented to the panel that these materials would be turned over to the Church. In reliance upon such representations, we hold that the questions raised by the withholding of these fourteen pages are moot; hence, we do not reach the Exemption 6 issue

At the time the District Court entered its judgment, Exemption 3 excepted from the disclosure requirements of the FOIA any information "specifically exempted from disclosure by statute." As discussed Infra, Exemption 3 was subsequently amended to read as follows:

(b) This section does not apply to matters that are

(3) specifically exempted from disclosure by statute (other than section 552b of this title), provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld . . . .

The investigatory files exemption claimed by the Postal Service, 39 U.S.C. § 410(c) (6), reads as follows:

(c) Subsection (b) (1) of this section shall not require the disclosure of

(6) investigatory files, whether or not considered closed, compiled for law enforcement purposes except to the extent available by law to a party other than the Postal Service.

Exemptions 5 and 7 except from the disclosure requirements of the FOIA inter-agency or intra-agency memorandums and law enforcement investigatory files, respectively. The exemptions read as follows:

(b) This section does not apply to matters that are

(5) inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency;

(7) investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records 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 course 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 . . . .

Government In The Sunshine Act, Pub. L. No. 94-409, enacted September 13, 1976 and made effective 180 days thereafter

In the event the District Court finds that 39 U.S.C. § 410(c) (6) is a specific exempting statute of the kind referred to in Exemption 3 of the FOIA, as amended, then the District Court must also address the issue of whether the Postal Service has complied with its own regulation, found at 39 C.F.R. § 265.6(c). General Services Administration v. Benson, 415 F.2d 878, 880 (9th Cir. 1969) ("Regulations reasonably adapted to the administration of a congressional act, and not inconsistent with any statute, have 'the force and effect of law.' " (citations omitted).) The Government contends that the regulation invests the Postal Service with discretion either to release to or withhold from a requestor investigatory files. See 39 C.F.R. § 265.6(c), which reads as follows:

(c) Investigatory records. (1) Investigatory files compiled for law enforcement purposes, whether or not considered closed, are exempt by statute from mandatory disclosure except to the extent otherwise available by law to a party other than the Postal Service, 39 U.S.C. § 410(c) (6). As a matter of policy, however, the Postal Service will normally make investigatory records available upon request unless the production of these records would:

(i) Interfere with enforcement proceedings,

(ii) Deprive a person of a right to a fair trial or an impartial adjudication,

(iii) Constitute an unwarranted invasion of personal privacy,

(iv) Disclose the identity of a confidential source, and, in the case of a record compiled by the Postal Inspection Service in the course of a criminal investigation or of a lawful national security intelligence investigation, confidential information furnished only by the confidential source,

(v) Disclose investigative techniques and procedures, or

(vi) Endanger the life or physical safety of law enforcement personnel.

(2) Authority to disclose investigatory records to persons outside the Postal Service must be obtained from the Chief Postal Inspector, United States Postal Service, Washington, D.C. 20260, or his designee.

The initial assumption found within the regulation, that law enforcement files of the Postal Service are unqualifiedly exempt from mandatory disclosure, is, of course, the very issue to be addressed by the District Court on remand. As a matter of internal policy, the Postal Service has adopted, by means of this regulation, the investigatory records standards imposed upon most other governmental agencies by Exemption 7. See note 5, Supra. The Postal Service has argued that by including the word "normally" within the regulation, that the Postal Service has retained discretion to withhold requested information irrespective of whether one of the regulation's enumerated harms exists. We question whether such an interpretation could be harmonized with Congress' expressed intent when it limited the scope of Exemption 3 of the FOIA by depriving agency administrators of discretion to disclose information under their control. See Lee Pharmaceuticals v. Kreps, supra, 577 F.2d at 615. We suggest, as an alternative to the Government's interpretation, a reading of the regulation that would require the Postal Service to release investigatory files in the Normal case. Thus, in accord with this alternative interpretation, only in the exceptional case when the Postal Service demonstrates the existence of one of the six enumerated dangers could the Postal Service justify a denial of a request for disclosure.

In the event the District Court finds that 39 U.S.C. § 410(c) (6) did not survive as a specific statutory exemption following the amendment to Exemption 3 in 1976, the District Court nonetheless should consider whether the documents are properly withheld under Exemptions 5 and 7, the alternative grounds raised by the Postal Service in the District Court.