Dennis J. Sladek v. Peter Bensinger, in His Capacity as Administrator, Washington, D. C., and Drug Enforcement Administration

605 F.2d 899, 1979 U.S. App. LEXIS 10730

• Court: Court of Appeals for the Fifth Circuit
• Decided: November 2, 1979
• Docket: 77-3247
• Status: Published

Opinions

GODBOLD, Circuit Judge:

This is a Freedom of Information Act (FOIA) case, 5 U.S.C. § 552, brought against the Drug Enforcement Administration (DEA) seeking the release of portions of the DEA Agent’s Manual concerning aspects of the DEA’s handling of confidential informants and search warrant procedures. The district court ordered disclosure of the portions of the manual requested by Sladek.¹ On appeal the DEA asserts three reasons for overruling the district court: (1) the manual is not subject to the mandatory disclosure provisions of the FOIA; (2) the contested portions of the manual are exempted from disclosure by the investigatory records exemption, § 552(b)(7); and (3) the manual is exempt under the internal personnel rules exemption, § 552(b)(2).²

I. Administrative manuals and § 552(a)(2)(C)

The first step in analyzing an FOIA request is to determine whether the requested material is subject to the disclosure requirements of 5 U.S.C. § 552(a). There are two subsections possibly requiring disclosure. Subsection (a)(2)(C) requires an agency to make available for public inspection and copying “administrative staff manuals and instructions to staff that affect a member of the public.” Subsection (a)(3) is a catch-all provision that requires an agency to make available upon request records not covered by § (a)(1) [designated records required to be published in the Federal Register] or by § (a)(2) [designated records required to be made available for public inspection and copying]:

(3) Except with respect to the records made available under paragraphs (1) and (2) of this subsection, each agency, upon any request for records which (A) reasonably describe such records and (B) is made in accordance with published rules stating the time, place, fees (if any), and procedures to be followed, shall make the records promptly available to any person.

The DEA contends that its manual is not covered by § (a)(2)(C) because it is a law enforcement manual. The distinction drawn in the legislative history between law enforcement materials and the “administrative” manuals and instructions referred to in § (a)(2)(C), has given rise to what has been called the “law enforcement exception.” The Senate Report on the FOIA contains this explanation:

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 actions.

Sen.Rep.No.813, 89th Cong., 1st Sess. 2 (1965). Necessarily, the courts have laid down criteria for determining whether materials are “administrative” or “law enforcement.” This court in Stokes v. Brennan, 476 F.2d 699, 701-02 (CA5, 1973), adopted the Sixth Circuit’s approach in Hawkes v. Internal Revenue Service, 467 F.2d 787, 795 (CA6, 1972), for determining whether a government manual falls within the law enforcement exception to disclosure. As stated in Hawkes the law enforcement exception only bars “disclosure of information which, if known to the public, would significantly impede the enforcement process.” 467 F.2d at 795 (emphasis in original). On the basis of that understanding of the limited nature of the law enforcement exception, the Stokes court ordered production of the Occupational Safety and Health Administration (OSHA) manual and other materials for training compliance officers. The manual included “concise explanations of inspection procedures and detailed discussions of the standards to be enforced.” 476 F.2d at 702. The court concluded that an employer’s detailed analysis of the OSHA materials would not enable him to avoid compliance with safety and health standards.

Our in camera review of the contested portions of the DEA manual leads us to the same conclusion reached by the district court in this case: disclosure of the sections of the manual dealing with informants and search warrants would not obstruct the DEA’s law enforcement efforts. The sections concerning informants, §§ 6234.31, 6612.46 and 6832.2, merely deal with DEA procedures for handling informants’ statements, when they should be reduced to writing and their format, what to do with “walk-in” informants, and procedures for keeping track of unreliable informants. The DEA contends that publication of its procedures for handling informants is likely to make an already skittish breed even more hesitant to provide information. We see no reason why this should occur. On the contrary, publication of how informants are treated may reduce unnecessary mystery and make some persons more willing to disclose information concerning criminal activity.

There remain only two search warrant sections that the DEA has refused to release. The sections on obtaining warrants and search procedures have been made public. Disclosure of the sections dealing with planning prior to entry, § 6653.1 and gaining entry, § 6653.2, would not impede law enforcement efforts. The material contained in the planning prior to entry section concerns trivial details of an insignificant nature. The gaining entry section, on the other hand, in addition to stating several general procedures for securing the searched area, states generally applicable legal rules for gaining entry to the premises. We see no difference between this section and the inspection procedures ordered disclosed in Stokes.

The material requested by Sladek does not fall within the law enforcement exception to (a)(2)(C) and must be disclosed under that section unless it falls within one of the categories of materials that are exempt from disclosure under § 552(b).

Because we conclude that the sections here in question must be disclosed under (a)(2)(C), it is not necessary for us to address disclosure under (a)(3).³

II. Exemption 2: internal personnel rules and practices

The DEA contends that its Agent’s Manual falls within Exemption 2, which provides that matters that are “related solely to the internal personnel rules and practices of an agency” are not subject to the disclosure requirements of § 552(a). We conclude that only the section of the manual dealing with planning prior to entry falls within this exemption.

The meaning of Exemption 2 has been the subject of extensive litigation. The main source of confusion is the conflicting legislative history. The Senate Report interpreted Exemption 2 very narrowly:

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 hour, statements of policy as to sick leave, and the like.

Sen.Rep.No.813, 89th Cong., 1st Sess. 8 (1965). The House Report on the other hand gave Exemption 2 a broader scope:

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 condition and routine administrative procedures which are withheld under the present law.

H.R.Rep.No.1497, 89th Cong., 2d Sess. 10 (1966), U.S.Code Cong. & Admin.News 1966, pp. 2418, 2427. The DEA» urges that for purposes of this case the House Report properly reflects the types of materials Exemption 2 was intended to except from the FOIA disclosure requirements.

In Department of Air Force v. Rose, 425 U.S. 352, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976), the Supreme Court concluded that in most cases the Senate’s version of Exemption 2 defines the scope to be given its coverage. Only “matter in which the public could not reasonably be expected to have an interest,” is within the scope of Exemption 2. Id. at 369-70, 96 S.Ct. at 1603, 48 L.Ed.2d at 26 (footnote omitted). This court in Stokes v. Brennan, supra at 703, reached the same conclusion. Accord, Jordan v. U. S. Department of Justice, 192 U.S.App.D.C. 144, 154-162, 591 F.2d 753, 763-71 (D.C.Cir., 1978); Vaughn v. Rosen, 173 U.S.App.D.C. 187, 192, 523 F.2d 1136, 1141 (D.C.Cir., 1975); Hawkes v. Internal Revenue Service, supra at 796-97. The Rose Court, however, left open the question whether the House Report would be followed in a case “where disclosure may risk circumvention of agency regulation.” 425 U.S. at 369, 96 S.Ct. at 1603, 48 L.Ed.2d at 26. The Second Circuit and D.C. Circuit recently split on this issue. The Second Circuit in Caplan v. Bureau of Alcohol, Tobacco & Firearms, 587 F.2d 544 (CA2, 1978), concluded that Exemption 2 covered the Bureau of Alcohol, Tobacco & Firearms (BATF) pamphlet “Raids and Searches” because disclosure of the pamphlet would risk circumvention of the agency regulation. The D.C. Circuit on the other hand concluded in Jordan v. U. S. Department of Justice, supra 192 U.S.App.D.C. at 162, 591 F.2d at 771, that even if disclosure may lead to circumvention of agency regulations, Exemption 2 is nevertheless limited to excepting documents in which the public could not possibly have any interest. Because we have concluded that disclosure of the sections of the DEA manual requested by Sladek would not impede law enforcement efforts there is no need for us to choose between the Second Circuit’s and D.C. Circuit’s interpretations of Exemption 2 when disclosure would risk circumvention of the law.⁴ The Supreme Court made clear in Rose that Exemption 2 only covers matters in which the public has no interest where there is no risk that disclosure would impede law enforcement efforts.

The DEA argues that portions of § 6612.-46 are exempt under Exemption 2 because there is no genuine public interest in them. We disagree. They concern DEA procedures for keeping track of unreliable informers. This is not the type of trivial rule, such as allocation of parking facilities, that is covered by Exemption 2. We do think, however, that § 6653.1, planning prior to entry, is so trivial that there could be no public interest in its contents. See Cox v. Department of Justice, 195 U.S.App.D.C. 189, 192-194, 601 F.2d 1, 4-6 (D.C.Cir., 1979). That section is, therefore, exempted from FOIA’s disclosure requirements.

III. Investigatory files: Exemption 7

Exemption 7 covers “investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would (E) disclose investigative techniques and procedures.” § 552(b)(7). The language of Exemption 7 makes clear that only records compiled in the course of an investigation directed at specific persons are exempt and then only if disclosure would reveal investigative techniques and procedures.⁵ The DEA manual was not compiled in the course of a specific investigation. Exemption 7 is inapplicable. Cox v. U. S. Department of Justice, supra at 1310; see Cox v. Levi, 592 F.2d 460, 462 (CA8, 1979).

The portions of the DEA manual requested by Sladek are subject to disclosure under (a)(2)(C) and with the exception of the section dealing with planning prior to entry, § 6653.1, none of the exemptions covers the requested material.

The decision of the district court is AFFIRMED in part and REVERSED in part.

1 . The district court ordered the release of seven sections of the manual: § 6234.31 (handling statements made by informers); § 6612.46 (unreliable informants); § 6832.2 (screening “walk-in” informants); § 6651.1 (obtaining search warrants); § 6653.1 (planning the execution of a warrant); § 6653.2 (entry of the premises to be searched); § 6653.3B (search procedures). .After the district court decision the government released to Sladek portions of § 6612.46 and all of §§ 6651.1 and 6653.3B.

2 . In Cox v. U. S. Department of Justice, 576 F.2d 1302 (CA8, 1978), the Eighth Circuit considered whether the DEA manual which is the subject of this law suit, must be disclosed under the FOIA. The Cox court decided to remand the case to the DEA to determine whether the manual must be disclosed in light of its decision. Basically, the court concluded that if disclosure would impede law enforcement efforts the manual would not have to be disclosed.

3 . Relying on Cox v. U. S. Department of Justice, 576 F.2d 1302 (CA8, 1978), the DEA contends that the law enforcement exception to (a)(2)(C) impliedly carries over to (a)(3). The D.C. Circuit rejected this argument in Jordan v. U. S. Department of Justice, 192 U.S.App.D.C. 144, 591 F.2d 753 (D.C.Cir., 1978).

4 . The decision in Cox v. U. S. Department of Justice, 195 U.S.App.D.C. 189, 601 F.2d 1 (D.C. Cir., 1979), may indicate a retreat from the position the D.C. Circuit adopted in Jordan that circumvention of agency rules is not a basis for broadening the scope of Exemption 2. 173 U.S.App.D.C. at 162, 591 F.2d at 771. In Cox, the D.C. Circuit in summarizing the types of materials covered by Exemption 2 included “those portions of law enforcement manuals that prescribe the methods and strategy to be followed by law enforcement agents in the performance of their duties.” 195 U.S.App.D.C. at 192, 601 F.2d at 4. The court, however, based its decision on the ground that the material requested dealt with “routine matters of merely internal interest.” Id. at 192, 601 F.2d at 4 (footnote omitted).

The district courts in the D.C. Circuit have been reluctant to follow the meaning of Jordan. In both Sturgeon v. Department of Treasury, No. 77-1961 (D.D.C., January 30, 1979) (Secret Service operations manual), and Cox v. U. S. Department of Justice, No. 78-1944 (D.D.C., May 8, 1979) (DEA training manuals), the courts concluded that if disclosure of the requested material would risk circumvention of the law, it was covered by Exemption 2. See the following language from Jordan:

as our analysis of the statutory language of Exemption 2 and its legislative history demonstrates, Exemption 2 was not designed to protect documents whose disclosure might risk circumvention of agency regulation, whatever would be the merits of such a provision. Exemption 2 is much more limited, as we have described.

591 F.2d at 771.

5 . Exemption 7 does not “include routine techniques and procedures already well known to the public, such as ballistics tests, fingerprinting and other scientific tests or commonly known techniques.” Conf.Rep.No.93-1200, 93d Cong., 2d Sess. (1974), U.S.Code Cong. & Admin.News 1974, pp. 6267, 6291. We are inclined to believe that the remaining disputed section dealing with searches — gaining entry— falls within the category of well-known investigative techniques. The sections on informants are probably not as widely known.