JOHN DOE AGENCY AND JOHN DOE GOVERNMENT AGENCY, PETITIONERS V. JOHN DOE CORPORATION No. 88-1083 In The Supreme Court Of The United States October Term, 1988 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Second Circuit Reply Memorandum For The Petitioners There is perhaps no better testament to the incorrectness of the ruling of the court of appeals, which makes the threshold "compiled for law enforcement purposes" criterion of Exemption 7 /1/ depend on whether a document was originally compiled for law enforcement purposes, than the position that respondent has taken in its brief in opposition. Rather than acknowledge and defend the holding of the court of appeals, respondent struggles mightily to convince the Court that the court of appeals really did not decide any recurring legal issue and that the court of appeals was instead relying on facts that make this case unique and unworthy of this Court's attention. But see John Doe Agency v. John Doe Corp., No. 88-1083 (A-552) (Jan. 30, 1989) (Marshall, J., in chambers), slip op. 2, 4. When respondent ultimately does address the merits of an issue resembling the one that the court of appeals decided, respondent succeeds only in refuting an argument that we have never made and in seriously misapprehending the thrust of this Court's decision in FBI v. Abramson, 456 U.S. 615 (1982). Contrary to respondent's contentions, it is manifest that the decision of the court of appeals in this case is incorrect, and that that erroneous decision would, if allowed to stand, immediately have damaging and far-reaching implications for federal law enforcement. 1. Respondent's effort to paint the opinion of the court of appeals as fact-specific is misdirected. Respondent quotes five statements of the court of appeals that, according to respondent, reflect the "unusual circumstances" of this case. Br. in Opp. 11. Yet the first two statements -- that the documents at issue were generated independent of any investigation and seven years before any investigation began -- lack any legal significance unless one first subscribes to the holding of the court of appeals that documents are "compiled for law enforcement purposes" only if they were originally so compiled. /2/ The third statement that respondent quotes /3/ is merely a legal conclusion -- which we have shown to be incorrect (see Pet. 11-13). /4/ And the fourth and fifth statements that respondent quotes come from a part of the opinion (Pet. App. 8a-10a) that discusses an issue (the application of Fed. R. Crim. P. 6(e)) completely different from the one on which we petitioned for certiorari. Notwithstanding respondent's effort to cloud the point, the passage of the opinion below that deals with Exemption 7 (Pet. App. 6a-8a; see Pet. 6-7) relies on one and only one fact in determining that the records at issue were not "compiled for law enforcement purposes": that they were generated by John Doe Agency for purposes other than law enforcement before they were compiled by John Doe Government Agency for law enforcement purposes. The court of appeals most assuredly did not rest its decision on any doubt about the proposition that release of the records at issue would jeopardize law enforcement proceedings; the court never disputed that this case would come within the terms of Exemption 7(A) if the threshold "compiled for law enforcement purposes" criterion were met. /5/ See generally John Doe Agency v. John Doe Corp., No. 88-1083 (A-552) (Jan. 30, 1989) (Marshall, J., in chambers), slip op. 3. Respondent now suggest (Br. in Opp. 11-12) that the government's assertion of Exemption 7(A) was too broad for reasons other than the application of the threshold "compiled for law enforcement purposes" test, but that issue was resolved against resolved against respondent by the only court that has passed on it (Pet. App. 13a-14a) and simply is not before this Court. /6/ Respondent further argues that "(t)he only effect of the Court of Appeals decision is to prohibit the government from withholding otherwise non-exempt records by the expedient of transferring the records to an FBI investigative file after they are requested" (Br. in Opp. 2). Yet the opinion below does not even mention -- much less treat as dispositive -- the fact that the documents at issue were transferred from John Doe Agency to John Doe Government Agency after John Doe Agency received respondent's FOIA request. The effect of the decision below, if followed, would be to make application of Exemption 7 depend on when the government first generated or obtained particular documents -- the consideration that the court of appeals did treat as dispositive -- not on a consideration that the court of appeals did not even mention. And, as we showed in the petition, making disclosure mandatory for all documents not originally compiled for law enforcement purposes is a serious error. Nor is respondent correct in suggesting that the court of appeals should have ruled the way it did merely because John Doe Government Agency, as part of a legitimate law enforcement investigation, compiled these documents while respondent's FOIA request was pending, rather than earlier. FOIA litigation is not a game in which Congress intended that law enforcement interest be frustrated so long as the FOIA requester asks the noninvestigative agency for particular records before the investigative agency does the same. Cf. FBI v. Abramson, supra (refusing to exalt format over substance in construing "compiled for law enforcement purposes"). Rather, in this area of FOIA law as in others, it is entirely appropriate for the government, after a FOIA request as well as before, to take steps to ensure that sensitive documents are not disclosed. /7/ There is, moreover, not the slightest support in the record of this case for the proposition that, rather than engaging in legitimate law enforcement activity, John Doe Government Agency took these documents from John Doe Agency for the purpose of making an otherwise inapplicable FOIA exemption apply. Rather, as is obvious from the subpoenas issued in February 1986 and thereafter, which are what prompted respondent's September 1986 FOIA request in the first place, the government long before September 1986 was engaged in law enforcement investigation that focused on, among other things, respondent's accounting practices that are the subject of respondent's 1978 correspondence with John Doe Agency. John Doe Government Agency's request to John Doe Agency for the documents at issue here, and the subsequent transfer of documents in accordance with that request, was a natural and timely outgrowth of that investigation. Respondent has no right to obtain disclosures that "could reasonably be expected to interfere with enforcement proceedings," 5 U.S.C. 552(b)(7)(A) (Supp. IV 1986), just because its request for the records preceded rather than followed John Doe Government Agency's request to the same agency for the same documents as part of a legitimate law enforcement investigation. 2. To the very limited extent that respondent even tries to defend the analysis of the court of appeals (Br. in Opp. 13-16), respondent merely shows that it would be wrong to construe Exemption 7 to apply to every document in a law enforcement file, without further inquiry. But we have never asked that Exemption 7 be so construed in this case. /8/ We ask, instead, that the Court construe Exemption 7 to make withholding or disclosure of a particular record that has been compiled for law enforcement purposes (whether when originally obtained or at some later time) turn on whether the criteria of Subsections (A)-(F) of Exemption 7 are met. /9/ The court of appeals, by contrast, made disclosure turn entirely on the fact that the documents at issue were originally generated in 1978 but compiled for law enforcement purposes much later, without regard to the important substantive criteria of Subsections (A)-(F). That holding, as we have shown in our petition, disregards the plain language of the statute, misreads the legislative history, and is contrary to this Court's approach in FBI v. Abramson, 456 U.S. 615 (1982). /10/ Respondent's attempt to draw support from Abramson (Br. in Opp. 16) is strained and misguided. In Abramson, this Court held that a document once compiled for law enforcement purposes does not lose its Exemption 7 character of having been so compiled when it is recompiled for other purposes. That conclusion followed both from the language of the statute ("compiled" as opposed to "compiled solely" or some other variant) and from the unmistakable, overriding objective of Congress to protect records that meet the criteria of Subsections (A)-(F). The conclusion did not follow from any judicial insertion of the word "orginally" into the phrase "compiled for law enforcement purposes," as respondent suggests. This Court's language and rationale in Abramson are sharply at odds with respondent's position, not an aid to it. 3. Respondent urges this Court to let the erroneous decision of the Second Circuit stand -- and let respondent obtain disclosures that are expected to cause damage to an important criminal investigation of fraud in defense contracting -- on the ground that the decision does not conflict with any decision of another court of appeals (Br. in Opp. 9-10). As Justice Marshall observed in granting our application for a stay in this case, however, the case law has evolved sufficiently, and the divergent positions are sufficiently well developed, that this issue is an appropriate one for review by this Court. See John Doe Agency v. John Doe Corp., No. 88-1083 (A-552) (Jan. 30, 1989) (Marshall, J., in chambers), slip op. 4. Moreover, allowing the erroneous decision in this case to stand, even as the law of the Second Circuit, would likely have severely negative consequences for the public interest in general and for investigations of fraud in defense contracting in particular. The offices of the Unites States Attorneys for the Eastern, Southern, Northern, and Western Districts of New York and the Districts of Connecticut and Vermont inform us that there are approximately 45 pending investigations of defense contractor fraud in those districts. Each of those investigations -- as well as numerous other investigations arising out of the activities of non-law-enforcement agencies /11/ -- could be seriously impaired by a FOIA request similar to respondent's if the rule announced in the decision below were to remain the law of the Second Circuit while a sharper conflict in the circuits developed. For the foregoing reasons and those given in the petition, it is respectfully submitted that the petition for a writ of certiorari should be granted. WILLIAM C. BRYSON Acting Solicitor General FEBRUARY 1989 /1/ Exemption 7 of the Freedom of Information Act (FOIA) is 5 U.S.C. 552(b)(7) (1982 & Supp. IV 1986). /2/ It is true, as respondent notes (Br. in Opp. 11), that the court of appeals did not use the phrase "orginally compiled." Since the court used the word "compiled" throughout its opinion as if it meant "originally compiled" (e.g., Pet. App. 7a-8a (referring to the requested records as "materials that were not investigatory records when compiled (but have since acquired investigatory significance")), the court never paused to make explicit what was certainly implicit in its opinion. Indeed, one can find in the court's opinion no basis, other than construing "compiled" to mean "originally compiled," for holding that the documents at issue were not "compiled for law enforcement purposes." /3/ "The attempt in the instant case to withhold documents generated in the course of routine audits because they are now part of an investigatory file * * * contravenes the obvious intent of the 1974 amendments to FOIA." Pet. App. 8a. /4/ The incorrectness of that legal conclusion is also demonstrated in several district court opinions, including the recent opinion in Crowell & Moring v. Department of Defense, Civ. No. 87-3432 (D.D.C. Jan. 12, 1989), slip op. 13-14. We have previously provided the Clerk ten copies of the Crowell & Moring opinion, and we are now also providing ten copies of the opinion in Raytheon Co. v. Department of the Navy, Civ. No. 88-94 (D.D.C. Jan. 5, 1989). /5/ This is equally true of disclosure of the Vaughn index. In its brief in opposition (at 5), as in its response to our stay application, respondent incorrectly implies that we somehow consented to the public filing of the Vaughn index and answers to interrogatories, but that the district court imposed an in camera procedure wholly on its own. As we have explained in our reply in support of the stay application, the government opposed the preparation of any Vaughn index or answers to interrogatories, on the ground that giving such documents to respondent would itself reveal information that respondent is seeking in this lawsuit but that should instead remain secret (C.A. App. 65-77). Because it took that broad position in resisting discovery, the government did not make the fallback suggestion that the documents be prepared but be submitted in camera, but the district court ordered that procedure because of the government's legitimate concerns. The district court has more recently found specifically that disclosure of the Vaughn index "would jeopardize the grand jury proceeding" (Pet. App. 14a). /6/ Respondent errs in calling our justifications for the application of Exemption 7(A) "conclusory and contradictory" (Br. in Opp. 12). The publicly proffered justifications for invoking Exemption 7(A), while hardly conclusory, are of necessity somewhat less specific than they otherwise might be, because greater specificity in pleadings that are accessible to respondent would itself compromise the integrity of the ongoing law enforcement investigation. There is nothing deficient -- and certainly neither court below suggested that there is anything deficient -- in the combined public, sealed, and in camera submissions that we have made to justify invoking Exemption 7(A). Nor is there anything "contradictory" about our exemption claims. The subpoenas were issued in the name of a regularly sitting grand jury, and the documents were then presented to a different grand jury that was empaneled on March 23, 1987, and was convened specifically for the investigation in which respondent is a target (see Br. in Opp. 3 n.2). That technique is standard and unquestionably proper. See generally, e.g., United States v. Thompson, 251 U.S. 407, 413-414 (1920); In re Grand Jury Proceedings States v. Goodman, 628 F.Supp. 323, 325 (M.D. Pa. 1985); United States v. Kleen Laundry & Cleaners, Inc., 381 F. Supp. 519 (E.D.N.Y. 1974). The December 9, 1988, declaration of Assistant United States Attorney Sean O'Shea refers to "documents which may not yet have been reviewed by the grand jury" (see Br. in Opp. 4 n.4) because we are concerned about documents that the government does not yet have. There is no contradiction between that reference and the correct statement in an earlier affidavit that all of the documents that are the subject of respondent's FOIA request have been presented to the grand jury. /7/ See generally Goldberg v. Department of State, 818 F.2d 71, 77 (D.C. Cir. 1987) (government may classify documents, and thus bring them within FOIA Exemption 1, 5 U.S.C. 552(b)(1), after FOIA request has been received), cert. denied, No. 87-655 (Feb. 29, 1988); Miller v. Department of State, 779 F.2d 1378, 1388 (8th Cir. 1986) (same); Baez v. Department of Justice, 647 F.2d 1328, 1332-1333 (D.C. Cir. 1980) (same). /8/ We entirely agree with respondent that "(t)he argument that a prosecutor can prevent disclosure of non-law enforcement records and information merely by making the documents part of an investigatory file has no support in any provision of the FOIA or its legislative history." Br. in Opp. 15. /9/ That determination does indeed depend on a "document by document, segment by segment, review of responsive records to determine whether they are subject to disclosure" (Br. in Opp. 12) -- a process to which we by no means object. We do object (see Pet. 17 n.16), however, to the quite difference requirement, which would follow from the reasoning of the court of appeals, that the government sift through a file of documents, all compiled for law enforcement purposes, and without regard to the criteria of Subsections (A)-(F) disclose each document that was not orginally so compiled. /10/ Last month alone, two courts agreed with our analysis and disagreed with that of the Second Circuit in this case. Crowell & Moring v. Department of Defense, slip op. 5-15; Raytheon Co. v. Department of the Navy, slip op. 8-9. /11/ E.g., American Business Institute v. Department of Education, Civ. No. 88-5165 (S.D.N.Y.) (pending FOIA case arising out of Department of Education investigation into fraudulent participation in federal student financial assistance programs).