Michael Alan Crooker v. Bureau of Alcohol, Tobacco & Firearms

670 F.2d 1051, 216 U.S. App. D.C. 232

• Court: Court of Appeals for the D.C. Circuit
• Decided: December 16, 1981
• Docket: 80-1278
• Status: Published

Opinions

EDWARDS, Circuit Judge:

In Department of the Air Force v. Rose, 425 U.S. 352, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976), the Supreme Court left undecided the question whether Exemption 2 of the Freedom of Information Act (FOIA)¹ permits a federal agency to withhold documents whose “disclosure may risk circumvention of agency regulation.”² In the present case we are presented squarely with that question.

This appeal involves a claim by the Government that portions of an agent’s training manual of the Bureau of Alcohol, Tobacco & Firearms (BATF) should not be released pursuant to FOIA since to do so “would benefit those attempting to violate the law and avoid detection.”³ Careful analysis of the statutory language of FOIA, its legislative history, and the ease law leads us to conclude that Congress enacted Exemption 2 to shield from disclosure materials such as the portions of the BATF manual at issue here. Accordingly, we hold that since the document for which disclosure is sought meets the test of “predominant internality,” and since its disclosure significantly risks circumvention of federal statutes or regulations, the document is exempt from disclosure under Exemption 2.

Nothing in this decision should be taken to question the result reached in our previous decision in Jordan v. United States Dep’t of Justice, 591 F.2d 753 (D.C.Cir.1978) (en banc). While our decision may appear inconsistent with one of the bare legal holdings in Jordan, see id. at 771, we nevertheless believe that from the facts as presented in Jordan, the result in that case would be identical under the test we announce today. It is the rationale in Jordan we reject insofar as it suggests that virtually all law enforcement manuals must be disclosed under FOIA.

I. BACKGROUND

In mid-1978 Michael Crooker filed a FOIA request with the Bureau of Alcohol, Tobacco & Firearms, seeking a copy of an agency manual entitled “Surveillance of Premises, Vehicles and Persons — New Agent Training.” Complaint If 5, located in Record (R.) at 1. BATF initially denied Crooker’s request in its entirety; however, following an administrative appeal, G. R. Dickerson, the Director of BATF, ordered the release of the manual except for portions of pages eight through twenty-nine. In his affidavit to the District Court, Director Dickerson wrote that “[t]he deletions which appear in the document released to Mr. Crooker are all based on 5 U.S.C. (a)(2)(C) and (b)(2) [Exemption 2],” ⁴ and that portions of the manual were withheld because their release “would benefit those attempting to violate the law and avoid detection.” Affidavit of G. R. Dickerson, R. at 10.⁵

After receiving Director Dickerson’s decision on his administrative appeal, Crooker filed a pro se complaint in the District Court seeking to compel BATF officials to produce the entire BATF manual. Complaint 115, R. at 1. Crooker subsequently moved for summary judgment, but did not support his motion with any affidavits or other documents.⁶

In response, the Government filed a “Motion to Dismiss or, in the Alternative, for Summary Judgment.” R. at 10. In support of its motion, the Government included Dickerson’s affidavit, as well as original and updated versions of the BATF manual for in camera inspection. The Government’s “Statement of Material Facts As to Which There Is No Genuine Issue” consisted solely of the first eight paragraphs of Dickerson’s affidavit. See R. at 10.

Crooker responded to the Government’s motion by filing a memorandum of points and authorities, and renewing his own plea for summary judgment. See Reply Memorandum, R. at 12. Crooker submitted no affidavits with his Reply Memorandum, and he made no attempt to contest the assertion in Dickerson’s affidavit that release of the entire BATF manual “would benefit those attempting to violate the law and avoid detection.” Rather, Crooker argued that “we are dealing with a manual that directly affects the public at large: surveillance of members of the public by federal authorities. The citizenry certainly has a significant interest in the manner in which they are spied on by agents of the federal government.” Reply Memorandum, R. at 12.⁷

After examining the BATF manual in camera, the District Court granted the Government’s motion for summary judgment and denied Crooker’s motion for summary judgment as well as his request for attorney’s fees and costs. In its brief order, the court held the material to be protected from disclosure under Exemption 2, citing this court’s decision in Cox v. United States Dep’t of Justice, 601 F.2d 1 (D.C.Cir.1979). See Order, R. at 13.

Crooker appealed the District Court’s decision,⁸ and a three-judge panel of this court decided without argument on November 12, 1980, that, under the holding of Jordan v. United States Dep’t of Justice, 591 F.2d 753 (D.C.Cir.1978) (en banc), the withheld portions of the BATF manual were not protected from disclosure by Exemption 2. On January 30, 1981, a majority of the full court of appeals voted to vacate the panel opinion and rehear the case en banc. The only issue on appeal before this court is whether certain portions of the BATF manual — “Surveillance of Premises, Vehicles and Persons — New Agent Training” — are exempt from disclosure under Exemption 2 of FOIA.⁹

II. EXEMPTION 2 AND ITS LEGISLATIVE HISTORY

A. The Structure of FOIA

Congress enacted the Freedom of Information Act, 5 U.S.C. § 552 (1976 & Supp. Ill 1979), in 1966 to replace section 3 of the Administrative Procedure Act, finding the existing statute to be “full of loopholes which allow agencies to deny legitimate information to the public.” S.Rep.No.813, 89th Cong., 1st Sess. 3 (1965). It is clear that FOIA was designed to embody “a general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language and to provide a court procedure by which citizens and the press may obtain information wrongfully withheld.” Id.

As presently enacted, FOIA contains three distinct subsections setting forth the circumstances under which an agency must release information to the public.¹⁰ Section (a)(1) covers information that must be published in the Federal Register, and section (a)(2) covers materials that must be made “available for public inspection and copying . . . unless the materials are promptly published and copies offered for sale.” Section (a)(3), under which Crooker requested the BATF manual, provides:

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 describes such records and (B) is made in accordance with published rules . . . shall make the records promptly available to any person.

5 U.S.C. § 552(a)(3) (1976).

Section (b) of the FOIA sets forth nine exemptions to disclosure.¹¹ In particular, section (b)(2), commonly called Exemption 2, provides that:

(b) This section [FOIA] does not apply to matters that are—

(2) related solely to the internal personnel rules and practices of an agency.

Id. § 552(b)(2). Whether or not portions of the BATF manual are exempt from disclosure depends on the scope of Exemption 2. To answer that question, we examine the language and legislative history of Exemption 2.

B. The Language and Legislative History of Exemption 2

Resort to the legislative history of a statutory provision is not necessary when the meaning of the provision is plain from its language. See Markham v. Colonial Mortgage Service Co., Associates, Inc., 605 F.2d 566, 569 (D.C.Cir.1979). In this case — at least at first blush — the BATF manual appears to be encompassed by the literal language of Exemption 2. Nonetheless, we recognize that other interpretations of the brief language of Exemption 2 are possible. Accordingly, after examining the language of Exemption 2, we will turn to its legislative history to determine the underlying congressional intent.

In Jordan v. United States Dep’t of Justice, 591 F.2d 753, 763 (D.C.Cir.1978) (en banc), this court held that the phrase “personnel rules and practices” in Exemption 2 refers only to “pay, pensions, vacations, hours of work, lunch hours, parking etc.” Yet, in cases similar to the present one, involving requests for disclosure of a BATF “Raids and Searches” manual, the Second and Ninth Circuits have come to the opposite conclusion. In denying disclosure, these courts have held that, “[fjrom its wording, [Exemption 2] would appear to apply to the contested portions of the [BATF] manual.” Hardy v. Bureau of Alcohol, Tobacco & Firearms, 631 F.2d 653, 655 (9th Cir. 1980). See Caplan v. Bureau of Alcohol, Tobacco & Firearms, 587 F.2d 544, 546 (2d Cir. 1978). We agree with the conclusions reached by the Ninth and Second Circuits regarding the meaning to be attributed to the statutory language. We thus hold that the words “personnel rules and practices” encompass not merely minor employment matters, but may cover other rules and practices governing agency personnel, including significant matters like job training for law enforcement personnel.

The word “internal” in Exemption 2 plainly limits the exemption to those rules and practices that affect the internal workings of an agency. “Related solely to” limits the exemption to those matters that are truly internal, and not of legitimate public interest.¹² In his concurring opinion in Vaughn v. Rosen (Vaughn II), 523 F.2d 1136 (D.C.Cir.1975), Judge Leventhal aptly observed that:

In some attenuated sense, virtually everything that goes on in the Federal Government, and much that goes on outside of it, could be said to be “related” through some chain of circumstances to the “internal personnel rules and practices of an agency.” The potentially all-encompassing sweep of a broad exemption of this type undercuts the vitality of any such approach. The legislature added the qualification that limited the exemption to items “relating solely” to internal personnel practices. Various opinions have relied on “solely” as a means of limiting the range of the (b)(2) exemption. That phrase too is open to an all-or-nothing interpretation; there are few events in our society today that occur without so much as a tiny ripple effect outside their area of prime impact. Thus pushed to their logical ends, “relating” is potentially all-encompassing while “solely” is potentially all-excluding. It seems unlikely that Congress intended either extreme, and that “solely” in this context has to be given the construction, consonant with reasonableness, of “predominantly.”

Id. at 1150-51 (Leventhal, J., concurring) (footnote omitted). Pursuing this rationale in his concurring opinion in Jordan, Judge Leventhal, joined by Chief Judge Robinson, concluded that:

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. That composite presents a matter that involves solely internal personnel rules and internal practices of an agency for purposes of making Exemption 2 applicable.

Jordan v. United States Dep’t of Justice, 591 F.2d at 783 (Leventhal, J., concurring).

We agree with this interpretation of the literal meaning of Exemption 2. Aceord-ingly, we believe that the disputed portions of the BATF manual for new agents — setting forth law enforcement investigatory techniques — fall within the compass of Exemption 2.

Despite our conclusion regarding the reasonable interpretation to be given the language of Exemption 2, we recognize that other interpretations are plausible. Consequently, we look to the legislative history of the exemption to determine whether it is possible to find a congressional intent that is plainly contrary to the meaning that we ascribe to Exemption 2.

Exemption 2 was a part of the original FOIA enacted in 1966. Despite amendments to FOIA in 1967, 1974, 1976, and 1978, the language of Exemption 2 has remained unchanged.¹³ Consequently, the principal sources of legislative history concerning the exemption are the congressional hearings, reports, and debates prior to the 1966 enactment of FOIA.

1. FOIA in the Senate

“Freedom of Information Act” bills were introduced in both the House and the Senate during the First Session of the Eighty-ninth -Congress.¹⁴ In mid-May 1965, the Senate held extensive hearings on its version of the new FOIA, S. 1160, receiving comments from numerous private groups and federal agencies.¹⁵ As with an earlier version, S. 1666, which had been introduced and passed by the Senate in the previous Congress,¹⁶ several federal agencies vigorously opposed passage of the bill.¹⁷ The Senators themselves, however, made no comments on the witnesses’ objections or on the scope of Exemption 2.¹⁸ Consequently, the Senate hearings provide little enlightenment as to Congress’ intent concerning Exemption 2.¹⁹

The principal expression of the Senate’s understanding of FOIA, and in particular Exemption 2, is found in the Senate Report, S.Rep.No.813, 89th Cong., 1st Sess. (1965). In the section outlining the purpose of the bill, the Senate Report identified the inadequacies of the existing section 3 of the Administrative Procedure Act, and claimed that the new bill would “establish a general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language.” Id. at 3. But, the Report also took note of certain “cross-currents” explicitly enacted into the bill:

At the same time that a broad philosophy of “freedom of information” is enacted into law, . . . [i]t is also necessary for the very operation of our Government to allow it to keep confidential certain material, such as the investigatory files of the Federal Bureau of Investigation.

Id. Thus, the Senate Report clearly recognized that the broad policy of full disclosure must be tempered in order to protect the “operation of our Government.”

The Senate Report’s description of Exemption 2 is brief, providing only a non-exclusive list of examples of matters exempt from disclosure:

Exemption No. 2 relates only to 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.

Id. at 8. There is no additional discussion of Exemption 2 in the Senate Report, and there was absolutely no debate in the Senate on S. 1160.²⁰

2. FOIA in the House

During the First Session of the Eighty-ninth Congress, several bills to amend section 3 of the APA were introduced in the House. The House Subcommittee on Foreign Operations and Government Information held hearings on these bills from March 30 to April 5, 1965, nearly a month and a half before the Senate hearings on S. 1160.21 The principal House measure under consideration was H.R. 5012,²² which provided in part:

(c) This section does not authorize withholding information from the public or limiting the availability of records to the public except matters that are ... (2) related solely to the internal personnel rules and practices of any agency.

House Hearings on H.R. 5012, supra note 21, at 3. In all material respects the language of Exemption 2 in H.R. 5012 was identical to the language in the Senate bill that later became law.²³

The House hearings unequivocally reveal that Exemption 2 was intended to cover investigatory materials. During an exchange involving Congressman Moss, the principal sponsor of the bill and chairman of the subcommittee holding the hearings, Mr. Kass, counsel to the subcommittee, and Mr. Schlei, Assistant Attorney General, Congressman Moss said, in response to Mr. Schlei’s objection that Exemption 2 “did not go far enough:”

What [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 FBI agent.

Id. at 29,²⁴

Several months after completion of the Moss hearings on H.R. 5012, the House Committee on Government Operations took up consideration of S. 1160,²⁵ and reported the bill without amendment on May 9,1966. See 112 Cong.Rec. 10053 (1966). The House Report on S. 1160, H.R.Rep.No.1497, 89th Cong., 2d Sess. 3 (1966), reiterates the general view expressed in the Senate Report that section 3 of the APA “has become the major statutory excuse for withholding Government records from public view.”

In its description of Exemption 2, the House Report stated:

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.

Id. at 10. Plainly, the House Report’s brief description of Exemption 2 differs from the Senate Report’s description in important respects.

This deviation has been discussed in other opinions,²⁶ and it comes to this: The Senate Report expressly states that documents concerning minor matters of employment — like sick leave policy — are exempt from disclosure, whereas the House Report indicates that such matters should be released. The so-called contradiction between the House and Senate Reports, however, exists only with respect to the exemption of trivial employment matters. The House Report’s statement that Exemption 2 permits exemption of more substantive matters — such as “manuals of procedure for Government investigators or examiners” — is uncontro-verted by the Senate Report.²⁷

Another important source of congressional intent is the House debate on S. 1160.²⁸ Congressman Moss, who had introduced similar legislation (H.R. 5012) in the House, and had conducted hearings on S. 1160, carefully noted the cross-currents of congressional concern expressed in the bill:

[T]he committee has, with the utmost sense of responsibility, attempted to achieve a balance between a public need to know and a necessary restraint upon access to information in specific instances. The bill lists nine categories of Federal documents which may be withheld to protect the national security or permit effective operation of the Government.

112 Cong.Ree. 13641 (1966) (remarks of Rep. Moss). Representative Dole also spoke in support of S. 1160, indicating his belief that

the bill takes into consideration the right to know of every citizen while affording the safeguards necessary to the effective functioning of Government.

Id. at 13655 (remarks of Rep. Dole). Representative Gallagher was even more specific:

I would like to reiterate that the bill also prevents the disclosure of other types of “sensitive” Government information such as . . . income tax auditors’ manual.

Income tax auditors’ manual would be protected under No. 2 — “related solely to internal personnel rules and practices.”

Id. at 13659 (remarks of Rep. Gallagher).

From these brief, but uncontradicted, statements in the House debate on S. 1160, we can see that the members of the House recognized that the unrestricted release of government documents might interfere with the “effective operation of the Government,” and that the nine exemptions were included in S. 1160 to prevent such interference. More specifically and importantly, supporters of S. 1160 were not challenged in their claim that government investigatory manuals were protected under Exemption 2.

We believe that the remarks from the debate are highly instructive. Particularly because in the present case Crooker has not disputed that release of the BATF manual will help individuals to evade the law, we are loathe to construe the statute in a way contrary to the express feelings of one house, on a point on which the other house made no comment.

III. OTHER INDICATIONS OF CONGRESSIONAL INTENT

The legislative history of Exemption 2 is not the only source of congressional intent regarding its scope. Indeed, it is

fundamental that a section of a statute should not be read in isolation from the context of the whole Act, and that in fulfilling our responsibility in interpreting legislation, “we must not be guided by a single sentence or member of a sentence, but [should] look to the provisions of the whole law, and to its object and policy.”

Richards v. United States, 369 U.S. 1, 11, 82 S.Ct. 585, 591, 7 L.Ed.2d 492 (1962) (footnote omitted).²⁹ As this court stated in Certified Color Mfrs. Ass’n v. Mathews, 543 F.2d 284, 296 (D.C.Cir.1976), “[i]t is a fundamental rule of statutory construction that legislative enactments be construed in a manner designed to give effect to all parts while avoiding a result contrary to the apparent intent of Congress.” ³⁰

As we have seen above, Congress believed that FOIA resolved two crucial but potentially conflicting interests: the right of the citizenry to know what the Government is doing, and the legitimate but limited need for secrecy to maintain the effective operation of Government. Two other subsections of FOIA, section (a)(2)(C) and section (b)(7)(E) [Exemption 7(E) ], reinforce the conclusion that Congress was aware of the need to protect investigative techniques from disclosure, and that Congress took action to prevent their disclosure. In short, these provisions reveal that Congress did not intend that FOIA would frustrate law enforcement efforts. While the congressional purpose behind these two sections is not dispositive to the question regarding Exemption 2, their inclusion in FOIA points to the conclusion that Congress believed that FOIA would not mandate release of materials containing law enforcement investigative techniques.

A. Section (a)(2)(C)

Section (a)(2)(C) provides:

(2) Each agency, in accordance with published rules, shall make available for public inspection and copying—

(C) administrative staff manuals and instructions to staff that affect a member of the public;

unless the materials are promptly published and copies offered for sale.

When S. 1160 was originally introduced in the Senate, the provision that was later to become section (a)(2)(C)³¹ referred to “staff manuals” and not “administrative staff manuals.” During Senate hearings on S. 1160, several witnesses expressed their fears that this language would mandate release of information that could damage or hinder law enforcement efforts. For example, Professor Kenneth C. Davis stated that the provision

goes too far and needs to be cut back. For instance, one who is investigated may be affected by instructions to the investigator about how to investigate, but some such instructions are properly confidential.

Senate Hearings on S. 1160, supra note 15, at 178 (statement of Kenneth C. Davis). The Securities and Exchange Commission, while declining to give an opinion on the scope of the provision, stated that

we fear its possible effect on our investigative and other enforcement activities. We agree that the public should have access to such materials as will facilitate compliance with the law and transactions with the agency. But disclosure of investigative techniques set out in staff training manuals, for example, would virtually provide a blueprint for evading the law to prospective violators.

Id. at 292 (Memorandum of the Securities and Exchange Commission to the Comm, on the Judiciary). The Department of Agriculture concurred:

The Department is strongly opposed to this provision. There are many types of staff manuals and instructions to staff that may affect members of the public but should not be published or made available for public inspection and copying. For example, staff manuals concerning investigation procedures or techniques to develop evidence of alleged violations of regulatory statutes . . . may affect members of the public but they are internal in nature and should not be published or made available to the public.

Id. at 381 (Detailed Analysis of S. 1336 by the U. S. Dep’t of Agriculture).

Although the members of the Senate subcommittee did not respond directly to these comments, the committee report recommended adding the word “administrative” to the expression “staff manual.” See S.Rep.No.813, 89th Cong., 1st Sess. 1 (1965). In discussing the proposed amendment to S. 1160, the Senate Report stated that:

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.

Id. at 2.

The House Report explained in more detail the scope of the provision:

[A]n 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, prosecutions, or settlement of cases.

H.R.Rep.No.1497, 89th Cong., 2d Sess. 7-8 (1966), U.S.Code Cong. & Admin.News 1966, pp. 2418, 2424.

Clearly, one of the “cross-currents” apparent from reviewing section (a)(2)(C) and its legislative history is Congress’ deep concern that manuals setting forth guidelines for auditing or inspection procedures should not be released to the public. Moreover, Congress acted specifically to prevent such a result, consistent with the secondary emphasis in the statute — that FOIA not be drafted so as to interfere with the effective operation of Government.

B. Section (b)(7)(E)

Similar indications of congressional intent are apparent from the 1974 amendments to FOIA. Following the Act’s passage in 1966, it became clear to many members of Congress that a number of federal agencies were using Exemption 7 to block legitimate requests for information.³² In response to the intransigence of these agencies, Congress revised Exemption 7 as a part of the 1974 amendments to FOIA.

As reported by the Senate Judiciary Committee, the original version of S. 2543, which later emerged as the 1974 legislation amending FOIA, left Exemption 7 intact. See S.Rep.No.854, 93d Cong., 2d Sess. (1974).³³ During the Senate debate, however, Senator Hart offered an amendment listing the specific circumstances under which a document would be exempt under Exemption 7. In part, his proposal provided that records need not be disclosed if they are:

(7) Investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would . . . (D) disclose investigative techniques and procedures.

See 120 Cong.Rec. 17033 (1974). In this amendment, Senator Hart recognized the legitimate law enforcement need for withholding some materials from disclosure:

[T]he amendment would protect against the release of investigative techniques and procedures where such techniques and procedures are not generally known outside the Government.

Id. at 17034 (remarks of Sen. Hart).

Senator Kennedy, speaking in support of the amendment, made it clear that Senator Hart’s addition was necessary to force courts to follow the original intent of Congress in enacting FOIA:

[W]hether or not this amendment is adopted, I would like to make it clear that I believe the courts have, in narrowly and mechanically interpreting the seventh exemption, strayed from the requirements and the spirit of the Freedom of Information Act .... I thus want the record to show that by accepting the Senator’s amendment we will be reemphasizing and clarifying what the law presently requires.

Id. at 17034-35 (remarks of Sen. Kennedy) (emphasis added). After the debate, the Senate adopted Senator Hart’s amendment and the entire bill.

The House, meanwhile, considered a similar bill, H.R. 12471. As reported out of committee, the House bill included no changes to Exemption 7. See H.R.Rep.No. 876, 93d Cong., 2d Sess. (1974), U.S.Code Cong. & Admin.News 1974/ p. 6267; 120 Cong.Rec. 6814 (1974) (remarks of Rep. Fas-cell) (“The pending legislation, therefore, does not change the language of eight of the nine exemptions.”) The bill, as reported, was passed in the House.

The conference committee appointed to iron out the differences between the Senate and House bills³⁴ adopted the Senate amendment to Exemption 7 and added an additional provision,³⁵ see H.R.Rep.No.1380, 93d Cong., 2d Sess. 12 (1974), but its explanation of Exemption 7(E) adds little to the language of the amendment.³⁶ Both the House and the Senate passed the bill, as reported by the conference committee, which now included Senator Hart’s amendments to Exemption 7.³⁷

Again, the legislative history of Exemption 7(E) is not dispositive of the issue before this court, but it is instructive.³⁸ Because Exemption 7(E) was not added to change FOIA but to “reemphasize and clarify” Congress’ original intent, the 1974 Amendments provide valuable insight into Congress’ intent when it enacted FOIA, and Exemption 2, in 1966.

IV. CONCLUSIONS TO BE DRAWN FROM THE LEGISLATIVE HISTORY

At this point in the discussion, it is appropriate to set forth certain critical conclusions distilled from the legislative history of FOIA. Clearly, FOIA was primarily envisioned as a workable disclosure statute that would eliminate the pervasive secrecy of the Federal Government. But our recognition of this explicit purpose should not obscure a secondary, but nevertheless fundamental, aspect of the bill — i.e. to exempt certain limited categories of documents from mandatory disclosure in order to protect individual rights and to permit the effective operation of the Government. In order to implement this secondary purpose, Congress included in FOIA nine exemptions from mandatory disclosure.

From the House, we have unequivocal statements in the hearings, the House Report, and the debate that Exemption 2 was intended to shield internal instructions to law enforcement agents from mandatory disclosure.³⁹ The Senate gives us less guidance since the Senators made no useful comments during the Senate hearings, and held no debate at all on FOIA. The Senate Report indicates that Exemption 2 covers minor employment matters, but it does not expressly limit the scope of Exemption 2 to such matters. Thus, the legislative history from the Senate and House is not contradictory as regards materials that would “aid in circumvention of the law.” Instead the Senate was silent on this point, and the House stated that such materials would be exempt from mandatory disclosure.

Other provisions of FOIA also demonstrate the “cross-currents” of concerns that Congress hoped to resolve in FOIA. In both sections (a)(2)(C) and (b)(7)(E) [Exemption 7(E)], Congress acted to block the production of materials that would result in the disclosure of investigatory techniques. In attempting to interpret FOIA as a consistent whole, we must recognize that these two sections are at least indicators of what Congress believed FOIA would do. It would be inconsistent to no small degree to hold that Exemption 2 would not bar the disclosure of investigatory techniques when contained in a manual restricted to internal use, but that Exemption 7(E) would exempt the release of such techniques if contained in an “investigatory record.” We see no reason, absent some persuasive evidence in the legislative history, to attribute such confused motives to Congress.

Furthermore, upon reflection, it would appear that the Senate and House interpretations of Exemption 2 may be reconcilable. The Senate’s concern in Exemption 2 was with matters so minor as to be of no genuine public concern, as opposed to “more substantial matters which might be the subject of legitimate public interest.” Vaughn v. Rosen (Vaughn II), 523 F.2d at 1142. The House, however, felt that certain substantial matters were not “the subject of legitimate public interest,” notably investigatory techniques used by law enforcement agencies. • From both houses, however, comes the common intent to use Exemption 2 to exempt from disclosure those internal personnel matters not “the subject of legitimate public interest.”

This is not to say that it is up to the courts to decide what matters are of legitimate public interest. Congress has made the determination that except for certain specified materials, all government documents are of legitimate public interest. In the present case we are not deciding what is in the public interest. Rather, by application of the statutory language, and direct reference to the legislative history, we must determine what matters Congress sought to exempt from disclosure. It will not do to apply individual provisions of the statute woodenly, oblivious to Congress’. intention that FOIA not frustrate law enforcement efforts. Rather it is our job to interpret the law as we believe Congress meant it to be read.

V. THE CASE LAW ON EXEMPTION 2

Several courts of appeals have considered whether to release documents similar to the BATF manual sought by Crooker in the present case. A review of these cases shows that each of these circuits, except for the District of Columbia Circuit, has refused to order the release of such materials. Some of these decisions have rested on Exemption 2, others on section (a)(2)(C).

A. Supreme Court Precedent

The starting point for most circuit court decisions on Exemption 2 is the Supreme Court’s decision in Department of the Air Force v. Rose, 425 U.S. 352, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976). In Rose the respondents sought to obtain case summaries of honor and ethics hearings at the Air Force Academy. Although the District Court ruled that Exemption 2 protected the summaries from disclosure, the Supreme Court reversed, holding that the summaries must be released.

In its discussion of Exemption 2, the Supreme Court recognized the explicit contradiction in the House and Senate Reports concerning whether minor employment matters are exempt from disclosure. The Court concluded that, “in this regard,” the Senate Report was the more authoritative. See id. at 367, 96 S.Ct. at 1602. But the Court was also careful to note the emphasis in the House Report on the availability of Exemption 2 to prevent the release of materials that would result in the disclosure of investigative techniques. In this regard, the Court wrote:

Those cases relying on the House, rather than the Senate, interpretation of Exemption 2, and permitting agency withholding of matters of some public interest, have done so only where 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. . . . Moreover, the legislative history indicates that this was the primary concern of the committee drafting the House Report.

Id. at 364, 96 S.Ct. at 1600 (citations omitted) (emphasis added).⁴⁰ Later in the opinion the Court repeated that it accepted the Senate interpretation of the exemption on minor employment matters in part “because we think the primary focus of the House Report was on exemption of disclosures that might enable the regulated to circumvent agency regulation.” Id. at 366-67, 96 S.Ct. 1601-02. Finally, the Court noted:

In sum, we think that, at least where the situation is not one where disclosure may risk circumvention of agency regulation, Exemption 2 is not applicable to matters subject to such a genuine and significant public interest.

Id. at 369, 96 S.Ct. at 1603 (emphasis added).

Clearly, Rose left open the question that faces us in the present case. At the same time, it is equally clear that the Supreme Court considered as substantial the argument that Exemption 2 might be construed to cover internal agency materials where disclosure might risk circumvention of the law.

B. D.C. Circuit Case Law

The first significant case in this circuit dealing with the scope of Exemption 2 was Vaughn v. Rosen (Vaughn II), 523 F.2d 1136 (D.C.Cir.1975). In Vaughn II, the plaintiff had sought the release of “Evaluation of Personnel Management” reports, prepared by the Civil Service Commission, to provide advice to agencies on how to improve their personnel programs. After considering the conflict between the Senate and House Reports, the court of appeals concluded “that the Senate Committee Report is authoritative and that Exemption 2 exempts from disclosure only routine ‘house-keeping’ matters in which it can be presumed the public lacks any substantial interest.” Id. at 1141. The court believed that “the Senate Report indicates that the line sought to be drawn is one between minor or trivial matters and those more substantial matters which might be the subject of legitimate public interest.” Id. at 1142 (emphasis added). As a consequence of its analysis, the court ordered the reports released.

Part of the rationale underlying the decision in Vaughn II is that FOIA is a broad disclosure statute, and that any uncertainty in interpreting the Act “requires us to choose that interpretation most favoring disclosure.” Id.41 Yet this interpretative approach may be too superficial, for it fails to take into account all of the “cross-currents” of concerns expressed by those members of Congress supporting the enactment of FOIA.⁴²

Judge Leventhal, who concurred separately in Vaughn II, considered the majority’s . analysis — that the Senate Report should be given greater weight than the House Report because the bill was passed first in the Senate — to be

a novel and totally unpersuasive canon of statutory construction .... The argument that the Senate Report was “available” to the House members is theoretical: The members of the House committee did have the Senate Report, but they departed from it.

Id. at 1148.⁴³ Moreover, he believed that even if the Senate Report afforded more disclosure, and thus was “more in keeping with the overall purpose of disclosure^] that does not answer questions about the construction of any particular provision.” Id.

In considering Exemption 2, Judge Lev-enthal reasoned that it “apparently signified a determination that the public interest would not be furthered by a requirement of public disclosure of certain ‘internal’ matters.” Id. at 1150. Since, however, the documents sought in Vaughn II were neither solely nor even predominantly⁴⁴ related to the internal practices of an agency, he believed that they should be released.

In 1978, this court decided Jordan v. United States Dep’t of Justice, 591 F.2d 753 (D.C.Cir.1978) (en banc).45 The plaintiff, Jordan, sought from the Justice Department two documents relating to guidelines for prosecutorial discretion. In an affidavit, the United States Attorney stated that release of these documents would permit individuals to “exploit these policies [of prosecutorial discretion] by committing crimes within these select categories, thereby escaping prosecution.” 591 F.2d at 758.⁴⁶ Examining the language of Exemption 2, the majority in Jordan held that the “[t]he Manual or Guidelines of the type at issue are simply not ‘personnel’ rules or practices,” and that, therefore, “from the face of the statute . . . the Guidelines at issue here are not within the specific language of Exemption 2.” Id. at 763. Apparently in partial justification of this holding, the majority opinion added that “Exemption 2 was not designed to protect documents whose disclosure might risk circumvention of agency regulation.” Id. at 771.

Regarding the legislative history of Exemption 2, the majority in Jordan concluded that the interpretations of Exemption 2 in the House and Senate Reports conflicted, and that the Senate Report gave the preferred construction. The majority accepted the Senate Report to the exclusion of the House Report because it believed that the Senate Report was more consistent with the language of Exemption 2, that the House Report offered no useful guidelines for agency officials, that the House interpretation was too sweeping (and thus inconsistent with the overall purpose of FOIA), and that “the House Report was the product of last minute chicanery by interested members of the House.” Id. at 768.

A total of five judges signed the majority opinion. One of them, Judge Bazelon, also wrote separately to emphasize his belief that “an important feature of [the] decision” was to eliminate “secret law,” such as the guidelines for prosecutorial discretion. Id. at 781 (Bazelon, J., concurring).

Judge Leventhal, with Chief Judge Robinson joining him, concurred separately. Judge Leventhal wrote that where “disclosure would permit circumvention of the law, and there is no substantial, valid external interest of the community at large in revelation,” internal instructions to investigators would be exempt under Exemption 2. Id. at 783. He argued that while the House Report was not as persuasive generally as the Senate Report, it was “not a nullity.” Id. Nonetheless, he and Chief Judge Robinson joined in affirming the District Court since they believed that Jordan was not

a case of predominant internality, but rather a case of substantial public interest in disclosure that is not offset by an interest in preventing circumvention of law or regulations.

Id. at 784.

Judge MacKinnon, joined by Judge Robb, dissented, largely on the basis that section (a)(2)(C) exempted the documents from disclosure. See id. at 785-96 (MacKinnon, J., dissenting).

Following Jordan, this circuit issued Cox v. United States Dep’t of Justice, 601 F.2d 1 (D.C.Cir.1979). In a brief per curiam opinion,⁴⁷ the court held that a “Marshal’s Manual” — which gave details concerning the U. S. Marshals’ weapons and handcuffs, and their transportation of prisoners — was protected from disclosure under Exemption 2 since the “deleted portions of the Manual unquestionably fall within subsection (b)’s exemption for routine matters of merely internal interest.” Id. at 4. The court sought to distinguish Jordan in that:

The undisclosed material [sought by Cox] does not purport to regulate activities among members of 'the public. Nor does it set standards to be followed by agency personnel in deciding whether to proceed against or to take action affecting members of the public.

Id. at 5.

In Lesar v. United States Dep’t of Justice, 636 F.2d 472 (D.C.Cir.1980), the plaintiff sought reports and documents from the Justice Department concerning the FBI’s investigation of the assassination of Martin Luther King. On the basis of Exemption 2, the Department resisted disclosure of “symbols used to refer to FBI informants in FBI documents and records.” Id. at 485. This court held:

We also find that the informant codes plainly fall within the ambit of Exemption 2. The means by which the FBI refers to informants in its investigative files is a matter of internal significance in which the public has no substantial interest.

Id. at 485-86. In support of the proposition that “the public has no legitimate interest in gaining information that could lead to the exposure of confidential sources,” id. at 486, the court cited Exemption 7(D), which exempts from disclosure “information that would disclose the identity of a confidential source in investigatory records.” Id. at n.78. Thus, in Lesar, the court referred to the language of another FOIA provision in order to determine the congressional intent underlying Exemption 2. It is also significant that Lesar does'not restrict the scope of Exemption 2 to minor employment matters, as the court did in Jordan.⁴⁸

From these cases it is plain that there is some uncertainty in this circuit regarding the scope of Exemption 2: While Cox purports to follow the analysis in Jordan, its result seems inconsistent with the rationale of Jordan ⁴⁹ Moreover, the logic and even result of Lesar seem at odds with that in Jordan. In Lesar the court referred to Exemption 7(D) to decide whether the public had a legitimate interest in disclosure sufficient to overcome Exemption 2. To the extent Jordan holds that Exemption 2 does not exempt law enforcement training or investigative manuals, despite the language of Exemption 7(E), it would appear to be inconsistent with the approach followed in Lesar.

C. Case Law in Other Circuits

The cases from other circuits may be divided into two categories: those that have exempted law enforcement investigatory manuals under section (a)(2)(C); and those that have used Exemption 2 to exempt internal law enforcement manuals whose disclosure would risk circumvention of the law.⁵⁰

1. Cases Relying on Section (a)(2)(C)

The first court of appeals decision to consider the conflict between the Senate and House Reports was Hawkes v. Internal Revenue Service, 467 F.2d 787 (6th Cir. 1972). In Hawkes the appellant sought an IRS tax manual in order to prepare his defense on charges of criminal tax fraud. The Sixth Circuit held that the Senate and House Reports were in complete contradiction, and that the language of the Senate Report was controlling.⁵¹ As a result, the court concluded that it was unlikely that Exemption 2 barred the disclosure of the manual since “we believe that the internal practices and policies referred to in (b)(2) relate only to the employee-employer type concerns upon which the Senate Report focused.” Id. at 797.⁵²

Despite its ruling on Exemption 2, the court in Hawkes found that the Senate had added the word “administrative” in section (a)(2)(C) of FOIA, see note 1, supra, “to bar disclosure of information which, if known to the public, would significantly impede the enforcement process.” Id. at 795 (emphasis in original).⁵³ Thus, although the Sixth Circuit held that Exemption 2 does not exempt certain internal manuals describing investigative techniques, it ruled that Congress had exempted the manuals under another section of FOIA.

In 1978, the Eighth Circuit decided Cox v. United States Dep’t of Justice (Cox I), 576 F.2d 1302 (8th Cir. 1978), in which federal agencies cited Exemption 2 and section (a)(2)(C) to resist disclosure of a “Drug Enforcement Agency [DEA] Agents Manual.” The court quoted extensively from the Sixth Circuit’s opinion in Hawkes v. Internal Revenue Service, 467 F.2d 789 (6th Cir. 1972) , and the Fifth Circuit’s opinion in Stokes v. Brennan, 476 F.2d 699 (5th Cir. 1973) , in holding that materials that may aid in evasion of the law would be exempt under section (a)(2)(C). The court also wrote that

(b)(7) does not apply directly to the present case. It does, however, demonstrate an intention by Congress to restrict public access to some law enforcement information, and the section serves as a practical guide for determining which information in the DEA Agents Manual may be withheld from the public.

Id. at 1308. The court’s sole reference to Exemption 2 was to state that “(b)(2) exempts only ‘housekeeping’ matters in which ‘the public could not reasonably be expected to have an interest.’ ” Id. at 1309-10, quoting Department of the Air Force v. Rose, 425 U.S. at 369-70, 96 S.Ct. at 1603.

This opinion was followed one year later by Cox v. Levi, 592 F.2d 460 (8th Cir. 1979), in which the plaintiff sought the “FBI Manual of Rules and Regulations” and the “FBI Manual of Instructions.” The District Court had held that Exemption 2 exempted those portions of the Manual of Instructions that related to FBI investigative techniques and procedures, “the disclosure of which would impede the agency in its efforts to carry out its law enforcement responsibilities.” Id. at 462. The Eighth Circuit affirmed the judgment of the District Court holding, however, that those pages whose disclosure would impede law enforcement efforts were exempt not under Exemption 2, but under section (a)(2)(C). The court expressly noted that in Cox I, it had “adopted the narrow interpretation of exemption (b)(2) contained in the Senate Report on the FOIA.” Id. In a footnote, the court stated that Cox I “implicitly rejected” the House Report. Id. at n.6.⁵⁴

Thus, the Sixth and Eighth Circuits have rejected the argument that Exemption 2 exempts agency manuals whose disclosure may risk circumvention of the law. However, both of these circuits have found that section (a)(2)(C) exempts such materials from disclosure, thus lending support to the proposition that Congress did not want these materials released.⁵⁵

2. Cases Relying on Exemption 2

After the Eighth Circuit decided Cox I, the Second Circuit issued Caplan v. Bureau of Alcohol, Tobacco & Firearms, 587 F.2d 544 (2d Cir. 1978), in which the plaintiff had sought a BATF pamphlet entitled “Raids and Searches.” The Court of Appeals agreed with the District Court’s specific finding that “the release of such parts of the pamphlet would hinder investigations, enable violators to avoid detection and jeopardize the safety of Government agents.” Id. at 545. The Second Circuit relied heavily on language in the Supreme Court’s decision in Rose where the Court had qualified its holding: “at least where the situation is not one where the disclosure may risk circumvention of agency regulation, Exemption 2 is not applicable to matters subject to such a genuine significant public interest.” Id. at 547, quoting Rose, 425 U.S. at 369, 96 S.Ct. at 1603 (emphasis in Caplan). The Second Circuit opinion reasoned that the disputed pamphlet did not involve “secret law,” but focused “on the techniques for apprehending those who engage in breaking the law.” Id. at 548. Considering “the full Senate Report,” including its discussion of section (a)(2)(C), the court was “persuaded that the (b)(2) exemption, as the Supreme Court suggested in Rose, includes internal material such as the withheld portions of the BATF manual where disclosure may .risk circumvention of agency regulation.” Id.⁵⁶

Following Caplan, the Ninth Circuit issued Hardy v. Bureau of Alcohol, Tobacco & Firearms, 631 F.2d 653 (9th Cir. 1980). As in Caplan, the plaintiff sought portions of a manual entitled “Raids and Searches.” In an affidavit, BATF “explained how disclosure would enable violators to evade or hinder law enforcement personnel.” Id. at 655. The court wrote that, but for the conflicting House and Senate Reports, “[fjrom its wording, [Exemption 2] would appear to apply to the contested portions of the manual here.” Id.

The court in Hardy specifically rejected the Fifth, Sixth, and Eighth Circuits’ reliance of section (a)(2)(C) to exempt the material. It also rejected the D. C. Circuit’s rationale in Cox v. United States Dep’t of Justice, 601 F.2d 1, 4 (D.C.Cir.1979), denying disclosure because the materials were those “in which the public could not reasonably be expected to have a legitimate interest,” since such a rule “places courts in the difficult position of determining when the interest of the public in governmental matters is ‘legitimate.’ ” 631 F.2d at 656.

Instead, the Ninth Circuit followed the rationale in Caplan that materials were exempt from disclosure under Exemption 2 if “the disclosure . . . may risk circumvention of agency regulation.” Id. The court believed that Exemption 2’s language was fully applicable since “[mjaterials instructing law enforcement agents on how to investigate violations concern internal personnel practices.” Id. The court remanded the case to the District Court “to determine whether [deleted portions of the manual] involve law enforcement material, the disclosure of which would risk circumvention of agency regulation.” Id. at 658.⁵⁷

From this survey, it appears that the case law on Exemption 2 is scattered. It is important to note, however, that every circuit that has considered the issue, except the District of Columbia Circuit in Jordan, has held that FOIA does not mandate the release of investigatory manuals where disclosure may risk circumvention of agency regulation.

VI. DISPOSITION OF THE PRESENT CASE

Our review of the statutory language of Exemption 2,. its underlying legislative history, and the other provisions in FOIA leads us to agree with the Second and Ninth Circuits that the portions of the BATF manual withheld in this case are protected from disclosure under Exemption 2.

We stress that the language of Exemption 2 supports our conclusion of nondisclosure. The instructions to BATF agents contained in the BATF manual are not written to regulate the public. Likewise, the manual does not embody any “secret law” of the agency.⁵⁸ Rather, the deleted portions of the manual refer to investigative techniques, in the form of prescribed rules and practices for agency personnel. Indeed, it is uncontroverted that the disputed rules here have been developed predominantly for internal uses.

Obviously, the deleted portions of the manual, as with any “internal personnel rules and practices of an agency,” have some effect on the public-at-large. As Judge Leventhal noted in Vaughn II, “there are few events in our society today that occur without so much as a tiny ripple effect outside their area of prime impact.” 523 F.2d at 1150 (Leventhal, J., concurring). The critical considerations here, however, are that the manual is used for predominantly internal purposes; it is designed to establish rules and practices for agency personnel, j.e., law enforcement investigatory techniques; it involves no “secret law” of the agency; and it is conceded that public disclosure would risk circumvention of agency regulations. Given these considerations, we hold that the deleted portions of the BATF manual are exempt from disclosure under Exemption 2.

Although the majority opinion in Jordan stated that the language of Exemption 2 “would seem to refer to those rules and practices that concern relations among the employees of an agency,” 591 F.2d at 763, and that “personnel” “normally connote[s] matters relating to pay, pension, vacations, hours of work, lunch hours, parking, etc.,” id., we feel that the meaning of Exemption 2 is not so limited. In fact, as observed above, two other circuits agree that “[fjrom •its wording, [Exemption 2] would appear to apply to the contested portions of the manual here.” Hardy v. Bureau of Alcohol, Tobacco & Firearms, 631 F.2d 653, 655 (9th Cir. 1980). Thus, while we recognize that the language of Exemption 2 alone may not answer the issue presented in this case, we conclude that it supports our judgment.

To the extent that the legislative history underlying FOIA is helpful, it also supports our conclusion. In both the House hearings and the House debates, members of the House spoke without contradiction that Exemption 2 was designed to protect law enforcement investigatory manuals from disclosure. The House Report reiterates that point. The Senate hearings give little indication of congressional intent and there were no Senate debates. The Senate Report, while helpful in providing some guidance in interpreting the language of Exemption 2, is not inconsistent with the House Report with respect to the question of investigative manuals.⁵⁹

We are also concerned that every other circuit considering the issue has barred the mandatory release of these materials, whether through the use of Exemption 2 or section (a)(2)(C). In particular, the Second and Ninth Circuits have specifically held such materials exempt under Exemption 2. Embracing the language of the Supreme Court in Rose, they have held “that law enforcement materials, disclosure of which may risk circumvention of agency regulation, are exempt from disclosure.” Hardy v. Bureau of Alcohol, Tobacco & Firearms, 631 F.2d 653, 657 (9th Cir. 1980); Caplan v. Bureau of Alcohol, Tobacco & Firearms, 587 F.2d 544, 548 (2d Cir. 1978). These decisions are hardly surprising since the overall design of FOIA, the explicit comments made in the House, the cautionary words of the Supreme Court in Rose, and even common sense, would seem to belie any suggestion that Congress enacted a statute whose provisions undermined its criminal statutes and the effectiveness of law enforcement agencies.

It is not up to this court to balance the public interest in disclosure against any reason for avoiding disclosure.⁶⁰ Congress has done the necessary balancing and enacted FOIA to represent the “cross-currents” of concern.⁶¹ Rather, our job is to determine congressional intent. In determining that intent, we, of course, look to the statute, its structure, and its purpose as expressed in the legislative history. Consequently, we must construe Exemption 2 narrowly in or-

der to be consistent with congressional intent that FOIA be a disclosure statute. Yet, it will not do for us to act on the primary purpose of the statute to the exclusion of all other express congressional concerns. As we have shown above, Congress evidenced a secondary purpose when it enacted FOIA of preserving the effective operation of governmental agencies. We must consider this purpose, too, when we construe Exemption 2.

Accordingly, we hold that if a document for which disclosure is sought meets the test of “predominant internality,” and if disclosure significantly risks circumvention of agency regulations or statutes, then Exemption 2 exempts the material from mandatory disclosure. In this formulation, we adopt the Supreme Court’s language in Rose as well as the expression “predominant internality” as used by Judge Leventhal in his concurring opinion in Vaughn II. We add the word “significantly” to stress the narrow scope of our construction of Exemption 2; in all cases in which the Government relies on Exemption 2, it remains the Government’s burden to prove the “significant risk.”

While our decision may appear inconsistent with one of the bare legal holdings in Jordan, see 591 F.2d at 771, we nevertheless believe that from the facts as presented in Jordan, the result in that case would be identical under the test we announce today. It is the rationale in Jordan we reject insofar as it suggests that virtually all law enforcement manuals must be disclosed under FOIA.⁶²

We turn away from the rationale of Jordan because it does not appear to comport with the full congressional intent underlying FOIA. The approach suggested in Jordan, rather than seeking to reconcile the Senate and House understandings of Exemption 2 in FOIA, chooses one report to the absolute exclusion of the other. We find this approach unacceptable in the context of this case.⁶³

Jordan goes farther than is necessary to reach its result. While it may have been possible that release of the prosecutorial documents in Jordan would help some individuals to evade the law, that fact is not clear from the opinion. First, even though the Government argued the point on appeal, there was no finding in the District Court or the Court of Appeals that release of the documents would risk circumvention of the law.⁶⁴ Second, it is not clear that release of such documents would actually risk circumvention. As Judge Leventhal pointed out in his concurrence in Jordan, federal prosecutors who resign to go into private practice as defense attorneys “take with them their knowledge of such guidelines [on pros-ecutorial discretion].” 591 F.2d at 784.⁶⁵ Disclosure of the manual in Jordan would not help individuals evade detection by law enforcement authorities, but release of the BATF manual in the present case might. See note 5, supra.

But even assuming that the guidelines in Jordan may aid some individuals in evading the law, the guidelines are not “predominantly internal.” They are, as Judge Bazel-on emphasized in his concurring opinion in Jordan, a source of “secret law,” as important to the regulation of public behavior as if they had been codified. As this court stated in Scott v. United States, 419 F.2d 264, 277 (D.C.Cir.1969),

the standard's which guide prosecutors in the exercise of their discretion are as much a part of the law as the rules applied in court. Indeed, the impact of such standards is more decisive for many defendants than that of any other legal rules.

The guidelines on prosecutorial discretion are instructions to agency personnel (e.g., prosecutors) on how to regulate members of the public. Knowledge of those regulations may be as significant to members of the public as is knowledge of statutory sentencing provisions. The BATF manual, on the other hand, is not concerned with regulating the behavior of the public, but consists solely of instructions to agency personnel. There is no attempt to modify or regulate public behavior — only to observe it for illegal activity. Accordingly, under the rule we announce today, the result in Jordan —release of the documents on prosecutorial discretion — would be the same.

VII. CONCLUSION

For the foregoing reasons we affirm the judgment of the District Court in holding that portions of the BATF manual are exempt under Exemption 2.

So ordered.

1 . 5 U.S.C. § 552(b)(2) (1976). The Freedom of Information Act may be found at 5 U.S.C. § 552 (1976 & Supp. Ill 1979). In relevant part, FOIA provides:

(a) Each agency shall make available to the public information as follows:

il) Each agency shall separately state and currently publish in the Federal Register for the guidance of the public—

(A) descriptions of its central and field organization and the established places at which, the employees (and in the case of a uniformed service, the members) from whom, and the methods whereby, the public may obtain information, make submittals or requests, or obtain decisions;

(B) statements of the general course and method by which its functions are channeled and determined, including the nature and requirements of all formal and informal procedures available;

(C) rules of procedure, descriptions of forms available or the places at which forms may be obtained, and instructions as to the scope and contents of all papers, reports, or examinations;

(D) substantive rules of general applicability adopted as authorized by law, and statements of general policy or interpretations of general applicability formulated and adopted by the agency; and

2 . 425 U.S. at 369, 96 S.Ct. at 1603. See id. at 364, 96 S.Ct. at 1600.

(E) each amendment, revision, or repeal of the foregoing.

(2) Each agency, in accordance with published rules, shall make available for public.inspection and copying—

(A) final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases;

(B) those statements of policy and interpretations which have been adopted by the agency and are not published in the Federal Register; and

(C) administrative staff manuals and instructions to staff that affect a member of the public; unless the materials are promptly published and copies offered for sale....

(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 describes 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.

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

(2) related solely to the internal personnel rules and practices of an agency;

(7) 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.

3 . Affidavit of G. R. Dickerson, Director, Bureau of Alcohol, Tobacco & Firearms, located in Record (R.) at 10.

4 . Despite the Director’s reliance in his affidavit on § (a)(2)(C), reprinted in note 1, supra, the only issue on appeal is the applicability of Exemption 2. In its petition to this court suggesting a rehearing en banc, the Government expressly disclaimed reliance on § (a)(2)(C). See Petition for Rehearing with Suggestion of Rehearing En Banc at 8 n.4.

5 . Paragraph 8 of Dickerson’s affidavit states: 8. Although it was possible to segregate the disclosable information from the nondisclosa-ble information on pages 8 through 18, that was impossible with respect to pages 19 through 29. Therefore, these pages were withheld from disclosure in their entirety. The deletions which appear in the document released to Mr. Crooker are all based on 5 U.S.C. §§ 552(a)(2)(C) and (b)(2). Since ATF P 4510.4 [the designation of the manual in question] is a law enforcement manual detailing methods and procedures for conducting surveillance of criminal suspects and contains extensive information concerning methods, strategies, techniques, and guidelines to be employed by ATF special agents in performance of their duties and since this material would benefit those attempting to violate the law and avoid detection, and possibly endanger the lives or safety of ATF special agents and others, and since this information is not secret law, we may properly withhold this information in accordance with the authority set out above.

6 . Crooker included with his motion for summary judgment a statement of material facts as to which there was no genuine issue; the statement simply listed the different actions taken during the processing of his FOIA request. See Plaintiffs Statement of Material Facts Not in Dispute, R. at 4.

7 . Because Crooker did not contest the Government’s assertions that release of the deleted portions of the manual “would benefit those attempting to violate the law and avoid detection,” Rule 56(e) of the Federal Rules of Civil Procedure requires this court to take the Government’s assertions as true. Rule 56(e) provides that:

When a motion for summary judgment is made and supported as provided in this rule [i.e., with affidavits], an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

In other words, failure to raise a genuine issue as to a material fact constitutes a concession that the uncontested fact is true for purposes of summary judgment.

8 . Crooker has not appealed the trial court’s denial of his request for attorney’s fees and costs.

9 . For the purposes of the en banc hearing, this court specially appointed Katherine A. Meyer, David C. Vladeck, and Alan B. Morrison to represent the appellant. This court wishes to thank counsel, and in particular Ms. Meyer, for their outstanding advocacy on the appellant’s behalf.

10 . See note 1, supra.

11 . Some circuits have held that by adding the word “administrative” to the phrase “staff manuals” in § (a)(2)(C), see note 1, supra, Congress implicitly created an additional exemption for law enforcement manuals. See Hawkes v. Internal Revenue Service, 467 F.2d 787, 793-96 (6th Cir. 1972); Cox v. United States Dep’t of Justice, 576 F.2d 1302, 1307-09 (8th Cir. 1978). However, this circuit has consistently held that the exemptions listed in § (b) must provide the sole bases for an agency’s decision not to release an agency record to the public. As FOIA itself states:

[FOIA] does not authorize withholding of information or limit the availability of records to the public, except as specifically stated.

5 U.S.C. § 552(c) (1976). See S.Rep.No.813, 89th Cong., 1st Sess. 10 (1965) (“The purpose of [§ 552(c) ] is to make it clear beyond doubt that all materials of the Government are to be made available to the public . .. unless explicitly allowed to be kept secret by one of the exemptions in subsection [b]”) (emphasis in original).

Accordingly, we leave undisturbed the holding in Jordan v. United States Dep’t of Justice, 591 F.2d 753, 760-63 (D.C.Cir.1978) (en banc), that § (a)(2)(C), requiring that “administrative staff manuals” be made available for inspection and copying, does not by itself exempt the BATF manual from disclosure. Whether the language and legislative history of § (a)(2)(C) shed light on the congressional intent underlying Exemption 2 is another matter. See section III.A, infra.

12 . As we discuss later in this opinion, it is not for the courts to determine when disclosure is in the public interest; rather, the courts are to decide what Congress intended with respect to the scope of Exemption 2. See note 60, infra.

13 . In 1967 Congress amended FOIA so that §§ (a)-(d) appeared in §§ (a)(l)-(a)(4), respectively. Section (e), which originally contained the exemptions, became § (b). See Pub.L.No. 90 -23, 81 Stat. 54 (1967). Thus, although the formal designation of Exemption 2 changed, its language did not.

14 . The Senate bill, S. 1160, was introduced on February 17, 1965. See 111 Cong.Rec. 2780 (1965). The principal House bill, H.R. 5012, was introduced the same day. See id. at 2946.

Prior to the Eighty-ninth Congress, several bills, including S. 1666, were introduced in the Senate to amend § 3 of the Administrative Procedure Act. See S.Rep.No.813, 89th Cong., 1st Sess. 3-4 (1965). During the Eighty-eighth Congress, the Senate passed S. 1666, but not in time for full consideration by the House. Nonetheless, S. 1666 is useful in determining the congressional intent behind Exemption 2 since the Senate Report accompanying S. 1160, which eventually became FOIA, asserted that “[t]he present bill [S. 1160] is substantially S. 1666, as passed by the Senate.” Id. at 4.

S. 1666 contained two “Exemption 2’s.” The first one, which applied only to materials to be published in the Federal Register, was identically worded to the original Exemption 2 of the discredited § 3 of the APA: materials need not be disclosed “to the extent there is involved ... (2) any matter relating solely to the internal management of an agency.” The second Exemption 2, which applied to agency opinions, orders, rules, and records, was identical to the current Exemption 2 as enacted in FOIA. The language of this second Exemption 2 is “similar to [the exemption] in subsection (a) [for Federal Register materials], but more tightly drawn.” S.Rep.No.1219, 88th Cong., 2d Sess. 12 (1964). The only conclusion we may fairly draw from the language in S.Rep.No.1219 and the language of Exemption 2 as it evolved to its present form is that the current Exemption 2 is more narrow than the original Exemption 2 of § 3 of the APA. How much more narrow, however, depends on the congressional intent as expressed in the reports, debates, and hearings preceding enactment of FOIA.

During the Senate hearings on S. 1666, the subcommittee members made only one comment in response to fears expressed by some witnesses that S. 1666 would impede law enforcement efforts. When Paul Dixon, Chairman of the Federal Trade Commission, spoke in opposition to the bill, Senator Long reassured him that: “The committee, I am sure, and the Congress, wouldn’t want to do anything that would seriously hurt the law enforcement pro vision of any agency.” See Freedom of Information: Hearings before the Subcommittee on Administrative Practice and Procedure of the Committee on the Judiciary on S. 1666 and S. 1663, 88th Cong., 1st Sess. 166 (Oct. .28-31, 1963) (statement of Paul R. Dixon).

15 . See Administrative Procedure Act: Hearings before the Subcommittee on Administrative Practice and Procedure of the Committee on the Judiciary on S. 1160, S. 1336, S. 1758, and S. 1879, 89th Cong., 1st Sess. (May 12-21, 1965) [hereinafter Senate Hearings on S. 1160]. The legislative history of Exemption 2 has been recounted by this court in Jordan v. United States Dep’t of Justice, 591 F.2d 753 (D.C.Cir.1978) (en banc), and Vaughn v. Rosen (Vaughn II), 523 F.2d 1136 (D.C.Cir.1975). However, because the case before us was heard en banc, and because the outcome of the case turns on congressional intent as expressed in the legislative history, we feel that the history merits a fresh review.

16 . See note 14, supra.

17 . Some witnesses specifically objected to Exemption 2. For example, Edwin Raines, the Assistant General Counsel of the Department of the .Treasury stated that: “The second exemption .. . [does not go] far enough. There are many other internal agency documents which should not be released. The investigative manuals of the Secret Service and the Bureau of Narcotics, for example, contain information the release of which would only be of assistance to criminals in telling them how to plot their crimes so as best to escape detection. Surely such information should be protected.” Senate Hearings on S. 1160, supra note 15, at 34 (statement of Edwin F. Raines). See also id. at 439 (Letter from General Counsel of Dep’t of Treasury to Senator Eastland, Chairman of the Committee on the Judiciary, reiterating the Department’s views).

18 . Of course, a decision not to act on the objections to Exemption 2, especially on those raised by witnesses who opposed the entire bill, does not create an inference that the exemption would have permitted disclosure of all law enforcement manuals. The Senators may have felt that the existing language of Exemption 2 adequately dealt with the expressed fears of these witnesses. Cf. Federal Public Records Law (Part 1): Hearings before a Subcommittee of the Committee on Government Operations on H.R. 5012 et al., 89th Cong., 1st Sess. 29 (Mar. 30-Apr. 5, 1965) (Rep. Moss, in response to similar objections, stating that Exemption 2 was intended to cover “the guidelines given to an FBI agent”).

19 . Some witnesses at the Senate hearings testified that the provision requiring “staff manuals” to be available for inspection and copying [now contained in § (a)(2)(C) ] would permit investigative techniques and manuals to be released to the public. See Senate Hearings on S. 1160, at 178 (statement of Professor Kenneth C. Davis); id. at 292 (Memorandum of the Securities and Exchange Comm’n to the Comm, on the Judiciary); id. at 381-82 (Detailed Analysis of S. 1336 by the U. S. Dep’t of Agriculture). The Senate later dealt with these objections. See section III. A, infra.

20 . The Senate hearings were completed on May 21, 1965. S.Rep.No.813, which recommended passage of S. 1160 with minor amendments, was issued on October 4, 1965. The Senate passed the amended bill on October 13, 1965, see 111 Cong.Rec. 26820 (1965), and referred it to the House Committee on Government Operations on October 14. See id. at 27055.

21 . See Federal Public Records Law (Part 1): Hearings before a Subcommittee of the Committee on Government Operations on H.R. 5012 et al., 89th Cong., 1st Sess. (Mar. 30-Apr. 5, 1965) [hereinafter House Hearings on H.R. 5012],

22 . H.R. 5012 was introduced by Congressman Moss, who chaired the House hearings. Several other identical bills were considered at the same time.

23 . In fact, the other exemptions listed in H.R. 5012 were substantially identical to those listed in S. 1160.

24 . The entire exchange is reprinted here:

Mr. Kass. Mr. Schlei, what is your interpretation of exemption No. 2? What information would fall under those records relating solely to the internal personnel rules and practices of an agency? How does your agency interpret that?

Mr. Schlei. Well, we’re inclined to be critical of that exception because it did not seem to us actually that the personnel rules and practices of an agency, many of them, ought to be exempt. They ought to be public. How you handle various personnel problems and where somebody goes to complain if he is treated wrongly by his superior, and so on. All those things I would suppose should be public. They should be upon a bulletin board.

And there are some personnel rules and practices that ought to be exempt, and I think that — let’s see—

Mr. Kass. It is No. 2.

Mr. Schlei. And so that exception, it seemed to us, protected from disclosure things that did not need protection, as well as perhaps not going far enough as to some aspects of information that the Government gets about its employees.

Mr. Kass. Where an individual is, let’s assume, fired from the agency — for cause we hope — would the facts and circumstances surrounding this discharge fall 'within the personnel practices of an agency as you read it?

Mr. Schlei. I should not think so, although you are talking here about records that are related to the “practices” of an agency, and conceivably a record, although it contained only a summary of some facts, say, might be related to the “practices, personnel practices,” of the agency, part of a file, part of a series of documents.

I am just talking off the top of my head about that problem, but I would say that you could get a situation where a factual statement or document came within that exception.

Mr. Kass. We are all talking, as you say, off the top of our heads. We are trying to create legislative history to determine what we intend.

Mr. Moss. What this was intended to cover was instances such ás 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 FBI agent.

Mr. Schlei. Ah! Then the word “personnel” should be stricken. Because “personnel” I think connoted certainly to use the employee relations, employee management rules and practices of an agency. What you meant was material related solely to the internal rules and practices of any agency for the guidance of its employees — something like that.

I do agree that there should be protection for the instructions given to FBI agents and bank examiners; people who, if they are going to operate in expectable ways, cannot do their jobs. Their instructions have to be withheld.

But I think that word “personnel” does not do the job well enough, Mr. Chairman. I am sure it can be done.

Mr. Moss. We will hope to seek a way of doing the job without, exempting internal rules and practices.

Mr. Schlei. I suppose that could cover quite a lot of ground, Mr. Chairman.

Mr. Moss. Because I am afraid that we would there open the barn door to everything.

Mr. Schlei. Well, it is one of those things, Mr. Chairman, that just shows how hard it is to cover the whole Government with a few words. There are a number of problems.

Mr. Moss. Oh, we recognize the difficulty and the complexity, but we are perfectly willing to work at it.

Mr. Schlei. All right, sir.

House Hearings on H.R. 5012, at 29-30 (statement of Norbert A. Schlei).

In Jordan v. United States Dep’t of Justice, 591 F.2d 753, 766 (D.C.Cir.1978) (en banc), this court recognized that Representative Moss “wanted investigative manuals covered by [Exemption 2).” The opinion, however, also implies that Mr. Schlei’s interpretation of the wording of Exemption 2 should be given greater weight than that of Representative Moss. Since in this case we are seeking congressional intent, we cannot follow the suggestion that Mr. Schlei’s interpretation of Exemption 2 is to be given predominant weight over that of a congressman and chief sponsor of the bill.

Other witnesses before the House subcommittee apparently felt that no problem existed under Exemption 2. For example, Clark Mol-lenhoff, Vice Chairman of Sigma Delta Chi’s Committee for Advancement of Freedom of Information, indicated his belief that Exemption 2 should cover “instructions to FBI agents:”

Mr. Kass. Would a definition of personnel rules include, in your estimation, instructions to FBI agents, or instructions to Secret Service agents, as exempt from disclosure?

Mr. Mollenhoff. I think those should be exempt.

Mr. Kass. They should be exempt?

Mr. Mollenhoff. Yes. I don’t think that that particular area is something that we should want to get into. The only time that that should be gone into is extraordinary circumstances where a proper committee of Congress would feel there is something wrong with the way it is being handled.

Mr. Kass. But as to the relationship between the executive and the public, they should not be given even that information?

Mr. Mollenhoff. No.

House Hearings on H.R. 5012, at 151 (statement of Clark R. Mollenhoff).

25 . See note 20, supra.

26 . See, e.g., Department of the Air Force v. Rose, 425 U.S. 352, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976); Sladek v. Bensinger, 605 F.2d 899 (5th Cir. 1979); Jordan v. United States Dep't of Justice, 591 F.2d 753 (D.C.Cir.1978) (en banc); and Vaughn v. Rosen (Vaughn II), 523 F.2d 1136 (D.C.Cir.1975).

27 . By noting that “the primary focus of the House Report was on exemption of disclosures . that might enable the regulated to circumvent agency regulation,” the Supreme Court in Rose recognized that the conflict between the committee reports exists only as regards minor employment matters. See 425 U.S. 366-67, 96 S.Ct. 1601-02.

28 . As stated above, S. 1160 passed the Senate without debate or objection.

29 . Quoting Mastro Plastics Corp. v. National Labor Relations Board, 350 U.S. 270, 285, 76 S.Ct. 349, 359, 100 L.Ed. 309 (1956), quoting from United States v. Boisdore’s Heirs, 8 How. 113, 122, 12 L.Ed. 1009 (1850).

30 . We note that we do not find it particularly significant that Congress enacted in 1976 a provision in the Government in Sunshine Act identically worded to Exemption 2 of FOIA. See Pub.L.No.94-409, § 3(a), 90 Stat. 1241 (1976). The House Report described the Sunshine Act provision as

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 agency policies governing employees’ dealings with the public, such as manuals or directives setting forth job functions or procedures.

H.R.Rep.No.880 (Part I), 94th Cong., 2d Sess. 9 (1976). We cannot follow the suggestion in Jordan, 591 F.2d at 770-71, that the House, in an entirely different act, repudiated its understanding of a provision in FOIA. Had the House meant to invest Exemption 2 in FOIA with a different meaning, it would have done so at any of the several times Congress amended FOIA.

31 . At that time § (a)(2)(C) was designated § (b)(C). See note 13, supra.

32 . The original provision, as enacted in FOIA in 1966, read:

The provisions of this section shall not be applicable to matters that are . . .

(7) investigatory files compiled for law enforcement purposes except to the extent available by law to a private party.

33 . In fact the Senate Report specifically stated that “S. 2543 does not amend the substance of the exemptions to disclosure spelled out in subsection (b).” Id. at 1. At the same time, by leaving the language of the exemptions unchanged, the Committee did not mean to imply acceptance of “judicial decisions which unduly constrict application of the Act." Id. at 7.

34 . In order to enable both houses formally to consider the same bill, the Senate struck the whole text of H.R. 12471 and substituted the text of S. 2543 in its entirety.

35 . Because of another conference committee change, the “investigative techniques and procedures” provision was moved from § (b)(7)(D) to its present place at § (b)(7)(E).

36 . The Report simply noted that:

The conferees wish to make clear that the scope of this exception against disclosure of “investigative techniques and procedures” should not be interpreted to include routine techniques and procedures already well known to the public, such as ballistics tests, fingerprinting, and other scientific tests or commonly known techniques. Nor is this exception intended to include records falling within the scope of subsection 552(a)(2) of the Freedom of Information law, such as administrative staff manuals and instructions to staff that affect a member of the public.

Id. at 12-13.

37 . Although President Ford vetoed the bill, both the House and the Senate promptly overrode the veto.

38 . The usefulness of Exemption 7(E) in our analysis is illustrated by Lesar v. United States Dep’t of Justice, 636 F.2d 472, 486 (D.C.Cir.1980), in which this court relied on Exemption 7(D) in deciding that “the public has no legitimate interest in gaining information that could lead to the exposure of confidential sources.” Because the public had no “legitimate interest,” the court held that the information was exempt under Exemption 2.

39 . It bears repeating that the House hearings were completed before the Senate held hearings on and passed S. 1160. Consequently, it is hardly sensible to disregard other consistent indications of House intent occurring after passage of the Senate bill on the speculative grounds that some members of the House engaged in “last minute chicanery” to undermine the Senate’s action. See Jordan, 591 F.2d at 768-69. The House expressed its intent on Exemption 2 both before and after the Senate expressed its views on the matter in the Senate Report.

40 . The Court acknowledged that Rose was not a case where knowledge of administrative procedures might help individuals to circumvent the law. See id. at 364, 96 S.Ct. at 1600.

41 . The Vaughn II opinion also follows the analysis in Hawkes v. Internal Revenue Service, 467 F.2d 787, 794 (6th Cir. 1972), that the Senate Report must be given predominant weight since it was the only report available to the members of both houses. See 523 F.2d at 1142—43. In support of its argument, the Vaughn II court quotes Professor Davis that “[t]he basic principal is quite elementary: The content of the law must depend upon the intent of both Houses, not of just one.” Id. at 1142, quoting Davis, Administrative Law Treatise, § 3A.31 (1970 Supp.) at 175. Yet the problem before us is that the intent of the House and that of the Senate, as expressed in the Committee Reports, are not identical. It is the job of this court to find an interpretation that best comports with the understanding of both houses.

42 . In Rose, the Supreme Court quoted extensively from Vaughn II for the proposition that, in general, the Senate Report’s interpretation of Exemption 2 is preferable to the House Report’s. The Supreme Court, however, carefully limited its approval to matters where disclosure would not risk circumvention of the law. See 425 U.S. at 369, 96 S.Ct. at 1603.

43 . Judge Leventhal also noted that “the realities of the legislative process” were that the House members voting on the bill had only copies of the bill and the House Report, and probably never saw the Senate Report. Id.

44 . As noted above, Judge Leventhal reasoned that the word “solely” in § (b)(2) must mean “predominantly” since “[solely] is open to an all-or-nothing interpretation; there are few events in our society today that occur without so much as a tiny ripple effect outside their area of primary impact.” Id. at 1150. Concluding that Congress could not have intended such an extreme interpretation, he settled on “predominantly.”

45 . Although a fuller discussion of the impact on Jordan by our decision today is given in the next section, a brief synopsis is useful here in order to understand the development of the case law regarding Exemption 2.

46 . The District Court, however, made no factual finding that release of the documents would aid individuals in circumvention of the law. See Jordan v. United States Dep’t of Justice, C.A. No. 76-0276 (D.D.C. Jan. 18, 1977). Moreover, unlike in the present case, the plaintiffs disputed the Government’s assertion that release of the prosecutorial guidelines would hinder law enforcement in that the guidelines did not involve law enforcement techniques and methods. See Plaintiff’s Memorandum in Opposition to Defendant’s Cross-Motion for Partial Summary Judgment, at 6-8.

47 . Judges MacKinnon and Robb, who dissented in Jordan, signed the opinion for the court. Judge Wright, who joined the majority in Jordan, concurred in the result.

48 . There is one other case of some significance in this circuit. In Allen v. Central Intelligence Agency, 636 F.2d 1287 (D.C.Cir.1980), the court held that portions of agency documents that contained “filing and routing instructions” were not exempt from disclosure under Exemption 2. See id. at 1289-90. Although the court noted that the narrow scope of Exemption 2, as reflected in the Senate Report, would not exempt the filing and routing instructions from disclosure, it also noted that it “is even doubtful that the filing and routing instructions would be exempt under the broader reading of the exemption given in the House report,” since disclosure “would not cause such ‘circumvention of agency regulations.’ ” Id. at 1290 n.20.

49 . One case that apparently has caused some confusion is Ginsburg, Feldman & Bress v. Federal Energy Administration, 591 F.2d 717 (D.C.Cir.1978), vacated and affd by an evenly divided court, 591 F.2d 752 (D.C.Cir.1978) (en banc). In Ginsburg the appellant sought an agency manual containing guidelines and instructions to agency employees who audit oil refineries. The District Court had denied the manual to the appellant.

Because the panel opinion was vacated (on the same day Jordan was issued), and the District Court decision was affirmed by an equally divided court, there is no opinion of the court. The confusion arises largely because the five judge majority in Jordan (which ordered release of the document) shrank to four judges in Ginsburg. Moreover, Judge Leventhal, who wrote a concurrence in Jordan, did not take part in the decision of Ginsburg. For whatever reason, the court felt differently about the release of the FEA auditor’s manual in Ginsburg than it did about the United States Attorney’s prosecutorial discretion guidelines in Jordan. We do not rely on Ginsburg in deciding the case before us, but we feel that the apparent inconsistency in the results in Jordan and Ginsburg indicates the need to resolve any doubts about the law of Exemption 2 in this circuit.

Further evidence of confusion about the meaning of Jordan may be found in several recent unpublished District Court decisions. See Zamnik v. United States Dep’t of State, C.A. No. 79-1072 (D.D.C. Aug. 28, 1979) (using Exemption 2, as well as Exemption 7(E), to deny the plaintiff access to a State Department manual relating to protective services for the President); Cox v. United States Dep’t of Justice, C.A. No. 78-1944 (D.D.C. May 8, 1979) (using Exemption 2 to protect certain DEA manuals from disclosure); Sturgeon v. Dep’t of Treasury, C.A. No. 77-1961, mem. op. at 4-5 (D.D.C. Jan. 30, 1979) (using Exemption 2 to exempt portions of a Secret Service Manual that involved "internal instructions to government investigators relating to the methods they are to use in investigating crimes”).

50 . A third- category of cases involves those circuits that have not decided whether Exemption 2 applies to documents whose disclosure would risk circumvention of the law. See Ma-roscia v. Levi, 569 F.2d 1000 (7th Cir. 1977); Nix v. United States, 572 F.2d 998, 1005 (4th Cir. 1978) (using Exemption 2 to exempt “file numbers, routing stamps, cover letters and secretary initials” from disclosure since these matters “are ordinarily not of such genuine and significant public interest as to require FOIA disclosure"). Significantly, neither of these circuits has interpreted “internal personnel rules and practices” strictly to mean “those rules and practices that concern relations among the employees of an agency,” as did this court in Jordan. Thus, even the Fourth and Seventh Circuits do not appear to follow Jordan.

In Ferri v. Bell, 645 F.2d 1213 (3d Cir. 1981), the court rejected the Government’s argument that information regarding procurement and control of electronic surveillance services involved “trivial housekeeping matters” and thus were exempt under Exemption 2. Id. at 23. Nonetheless, the court did not reject the applicability of Exemption 2. “It remains open to the government on remand to demonstrate by detailed affidavit that disclosure would impede the agency’s law enforcement effectiveness.” Id. at 24. The court, however, declined to rule definitively on the legal issue — involving the applicability of Exemption 2 where disclosure risks circumvention of the law — until after the Government “has demonstrated on remand how its effectiveness would be threatened by disclosure in this case.” Id. (emphasis in original).

In Stokes v. Brennan, 476 F.2d 699 (5th Cir. 1973), the plaintiff sought disclosure of a manual entitled “Training Course for Compliance Safety and Health Officers.” The District Court ordered the materials released under § (a)(2)(C), and the appellate court affirmed that decision, largely on the basis of Hawkes v. Internal Revenue Service, 467 F.2d 787 (6th Cir. 1972), and its finding that disclosure of the manual would not help the public to evade the law. Id. at 701-02.

In a subsequent case, Sladek v. Bensinger, 605 F.2d 899, 902 (5th Cir. 1979), the Fifth Circuit held that since

disclosure of the sections of the DEA manual [on handling confidential informants and search warrant procedures] requested by Sla-dek would not impede law enforcement efforts there is no need for us to choose between the Second Circuit’s and the D. C. Circuit’s interpretation of Exemption 2 when disclosure would risk circumvention of the law.

51 . The Hawkes court felt that the Senate Report was controlling since “the plain import of the (b)(2) language clearly favors the Senate’s interpretation” 467 F.2d at 797, and because only the Senate interpretation was before both Houses of Congress. “To adopt the statutory interpretation put forward in the House Report would be to allow a single house of the Congress to effectively alter the meaning placed on proposed legislation by the other house without altering a word of the text. We do not believe that this represents a wise approach to statutory interpretation.” Id. But see note 41, supra, and note 63, infra.

52 . The court remanded the case to the District Court to reconsider the appellant’s disclosure request in light of the principles announced in Hawkes.

53 . As an example of what it meant, the court stated: “Similarly interrogation techniques or the mechanics of an F.B.I. ‘stakeout’ arrangement properly could be excluded from disclosure under (a)(2)(C).” Id.

54 . In a recent case, Kuehnert v. Federal Bureau of Investigation, 620 F.2d 662, 667 (8th Cir. 1980), the court expressed its doubts that “information for investigative lead purposes” falls within Exemption 2. The court remanded the case for an in camera inspection of the documents.

55 . Professor Davis also believes that § (a)(2)(C) permits an agency to exempt from disclosure law enforcement manuals. See Davis, Administrative Law Treatise § 5.4, 5.30 (2d ed.) (1980 Supp.).

56 . See also Polymers, Inc. v. National Labor Relations Board, 414 F.2d 999, 1005-06 (2d Cir. 1969), cert. denied, 396 U.S. 1010, 90 S.Ct. 570, 24 L.Ed.2d 502 (1970) (relying on the House Report to exempt from disclosure an “internal advisory document for the use of Board personnel”).

57 . Crooker concedes that Caplan and Hardy are not distinguishable from his case. See Appellant’s brief at 23.

58 . In Rose, the Supreme Court stated that Exemption 2

was not designed to authorize withholding of all matters except otherwise secret law bearing directly on the propriety of actions of members of the public. Rather, the general thrust of the exemption is simply to relieve agencies of the burden of assembling and maintaining for public inspection matter in which the public could not reasonably be expected to have an interest.

425 U.S. at 369-70, 96 S.Ct. at 1603 (emphasis added). With respect to “matter in which the public could not reasonably be expected to have an interest,” the Court, at 425 U.S. 370, n.7, 96 S.Ct. 1603 n.7, cited the concurring opinion of Judge Leventhal in Vaughn v. Rosen (Vaughn II), 523 F.2d at 1150, which reads in part:

there is still a legislative inclination that while the public has a right to know all the activities of an agency that bear on its intentions concerning outsiders, whether formal or informal interpretations and instructions, when purely “internal” matters are involved there is a combination of diminished valid interest in the outsiders relative to the administrative burden imposed, plus a recognition that management of government needs some elbow room in developing and revising internal practices, so as to achieve efficiency, without becoming embroiled in continuous public discussion. The problem is to give effect to both of these policy goals without rendering either of them nugatory by a too broadly sweeping construction of the statutory provisions.

59 . To the extent that the legislative history of earlier bills is useful, it also supports the conclusion that Congress intended to exempt investigatory manuals from disclosure under Exemption 2. See note 14, supra.

60 . Nor is it for this court to decide which disclosures are in the public interest. Thus, to this extent we reject language in Cox v. United States Dep’t of Justice, 601 F.2d 1, 5 (D.C.Cir.1979) and in Jordan v. United States Dep’t of Justice, 591 F.2d 753, 783 (D.C.Cir.1978) (en banc) (Leventhal, J., concurring), suggesting that the courts are to decide when there is a legitimate public interest in disclosure.

61 . We note that in two other exemptions, 7(C) and 6, “the court is called upon to balance the conflicting interests and values involved; in other exemptions Congress has struck the balance and the duty of the court is limited to finding whether the material is within the defined category.” Lesar v. United States Dep’t of Justice, 636 F.2d 472, 486 n.80 (D.C.Cir.1980). See Department of the Air Force v. Rose, 425 U.S. at 370-73, 96 S.Ct. at 1603-04.

62 . At oral argument, appellant’s counsel conceded that under Jordan nearly every law enforcement manual must be released to the public.

63 . The Jordan opinion chose the Senate Report over the House Report in part to prevent “last minute chicanery” in the House from dictating the meaning of the statute. The expressed fear is that Senate intent will never become law if the House writes a conflicting report, but avoids a conference committee by passing the bill without amendment.

Yet, in its vigorous efforts to protect the Senate, the majority in Jordan has gone to the opposite extreme, in a sense doing the very thing it feared might happen. Under the Jordan interpretation, congressional intent expressed in the House is given no weight at all. Particularly since both houses were considering bills with identical Exemption 2 provisions, and some of the House legislative history predates the Senate legislative history, we should avoid if possible the extreme approach taken in Jordan. Instead, we believe the proper route is to try to reconcile legislative intent expressed in the House with that in the Senate.

64 . See note 46, supra.

65 . In the present case, by contrast, the Government submitted an uncontested affidavit to the District Court detailing how release of the entire BATF manual would aid in circumvention of the law. Because it was uncontested, the affidavit is to be taken as true in reviewing a motion for summary judgment. See note 7, supra.