JOHN DOE AGENCY AND JOHN DOE GOVERNMENT AGENCY, APPLICANTS V. JOHN DOE CORPORATION No. A-552 (88-1083) In the Supreme Court of the United States October Term, 1988 Application to Recall and to Stay Mandate of the United States Court of Appeals for the Second Circuit and to Stay Order of the United States District Court for the Eastern District of New York Pending Certiorari Petition for a Writ of Certiorari of the Mandate of the United States Court of Appeals for the Second Circuit Pursuant to Rules 43 and 44 of the Rules of this Court and 28 U.S.C. 1651 and 2101(f), the Solicitor General, on behalf of John Doe Agency and John Doe Government Agency, /1/ applies to this Court for (1) a recall and stay, pending the disposition of a petition for a writ of certiorari, of the mandate of the United States Court of Appeals for the Second Circuit issued November 28, 1988, and (2) a stay of the district court's order of December 12, 1988, on remand from the court of appeals, requiring disclosure of the Vaughn index prepared in this case. /2/ The lower courts have refused to stay those orders. A petition for a writ of certiorari has already been filed (No. 88-1083). In the decision that the government has asked this Court to review -- John Doe Corp. v. John Doe Agency, 850 F.2d 105 (2d Cir. 1988) -- the court of appeals rejected the government's justification for withholding information pursuant to Exemption 7 of the Freedom of Information Act (FOIA), 5 U.S.C. (& Supp. IV) 552(b)(7), and remanded the case to the district court. /3/ According to the court of appeals, the records at issue could not be withheld under Exemption 7 because, whether or not their release would interfere with law enforcement proceedings, they were not "compiled for law enforcement purposes." Because the decision of the court of appeals did not require the government to release any documents, we did not seek a stay in this Court immediately after the court of appeals denied a stay of mandate and issued its mandate on November 28, 1988. Now, however, the district court has entered a disclosure order, and the court of appeals has refused to stay that order. The requested order from this Court is necessary (1) to prevent the disclosure of information contained in the Vaughn index because such disclosure could reasonably be expected to interfere with an important law enforcement investigation; and (2) to avoid mooting a significant portion of the decision of the court of appeals before the government can obtain this Court's review. /4/ The decision of the court of appeals will seriously impair the ability of numerous federal agencies to conduct their law enforcement responsibilities. Many agencies collect through routine monitoring functions information that later becomes an essential part of a criminal (or other law enforcement) investigation. The panel's ruling would require federal agencies to segregate and disclose all such records or information even though, at the time of the FOIA request, they were an integral part of a legitimate criminal (or other law enforcement) investigation. Such disclosure would be quite disruptive to law enforcement proceedings at the investigative stage. Attached to this application is a copy of the petition for a writ of certiorari, which includes in its appendix the opinion of the court of appeals, the opinion of the district court (with the names of the parties deleted), the order of the court of appeals denying the petition for rehearing and suggestion of rehearing en banc, and the judgment of the court of appeals (issued as mandate November 28, 1988). Also attached is the order of the district court dated December 12, 1988 (with the names of the parties deleted), requiring disclosure of the Vaughn index. We are informed that the Second Circuit denied a stay of that order earlier today, January 10, 1989, but we have not yet received a written order from the court of appeals. Other documents pertinent to this application are contained in the joint appendix that was filed under seal in the court of appeals. We have supplied a copy of that joint appendix under seal to the Clerk of this Court. We have also supplied to the Clerk under seal the declaration of Assistant United States Attorney Sean O'Shea, dated December 9, 1988. STATEMENT 1. In 1978, John Doe Agency exchanged letters with John Doe Corporation (Corporation or respondent) concerning the allocation of certain costs incurred by Corporation under its contracts (see Pet. App. 2a). In a letter dated May 2, 1978, John Doe Agency asserted that those costs were wrongly charged to a technical overhead account when they should have been charged directly to certain government contracts (ibid.). Corporation responded on July 11, 1978, defending its allocation (ibid.). The issue was revived eight years later, in 1986, during a grand jury investigation of possible fraudulent practices by Corporation (see Pet. App. 2a). That investigation was opened on July 18, 1985, with Corporation named as a subject. The grand jury issued its first subpoena to Corporation on February 21, 1986. Corporation made a FOIA request on September 30, 1986, to John Doe Agency for "all documents, (etc.) that are related in any way to the subject matter of the (1978) correspondence between (John Doe Agency) and (Corporation)" (C.A. App. 1). John Doe Agency denied the request on November 18, 1986, "(u)pon the advice and direction" of an Assistant United States Attorney (id. at 25). On November 20, 1986, the requested records were transferred from John Doe Agency to John Doe Government Agency, a federal law enforcement agency. On February 3, 1987, Corporation made a FOIA request to John Doe Government Agency for "all documents that are related in any way to the subject matter of the (1978) correspondence between (John Doe Agency) and (Corporation)" (C.A. App. 38). John Doe Government Agency denied the request, relying on Exemption 7 (id. at 40). Corporation filed an administrative appeal (id. at 41). When its appeal was not ruled on within the prescribed time, Corporation filed suit in the United States District Court for the Eastern District of New York (id. at 9, 11). 2. In the district court proceedings, the government opposed disclosure on the basis that the documents are exempt under Exemption 7(A) and 7(E) (see C.A. App. 106). The court ordered the government "to prepare a Vaughn index and to answer plaintiff's interrogatories and to submit these documents to the court for an in camera examination" (id. at 109-110). After conducting the in camera examination, the district court held that the defendants could not be required to turn any of the documents over to Corporation because "there is a substantial risk that disclosure of any of this material, the documents, the Vaughn index and the answers to (Corporation's) interrogatories, would jeopardize the grand jury proceeding" (Pet. App. 14a). 3. On June 23, 1988, the court of appeals ruled that Exemption 7 did not protect the documents from disclosure because they were not "compiled for law enforcement purposes" (Pet. App. 7a-8a) -- a phrase the court construed to mean originally obtained or generated for law enforcement purposes. The court's entire analysis of this important issue was as follows (ibid.): The district court held that the documents were exempt under FOIA Subsection (b)(7), which exempts from disclosure "matters that are . . . records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information() could reasonably be expected to interfere with enforcement proceedings." Although the district court concluded that disclosure would "jeopardize" the "grand jury proceedings, it made no finding as to whether the records sought were "compiled for law enforcement purposes." Such a finding is essential to a valid claim of exemption under Subsection (b)(7). * * * In the instant case, the documents requested were generated by Agency independent of any investigation in the course of its routine monitoring of Corporation's accounting procedures with regard to Corporation's defense contracts. The records were compiled in 1978, seven years before the investigation began in 1985. They were thus not "compiled for law enforcement purposes" and are not exempted by Subsection (b)(7). The 1974 amendments to the FOIA make it clear that a governmental entity cannot withhold materials under the FOIA on the ground that materials that were not investigatory records when compiled have since acquired investigative significance. Originally, the FOIA exemption in question applied to "investigatory files." In 1974, however, Congress substituted the word "records" for "files" to insure that documents produced in the routine course of government operations would not be withheld under Subsection (b)(7) merely because they had been commingled with investigative materials generated later in the course of a law enforcement proceeding. (NLRB v.) Robbins Tire & Rubber (Co.), 437 U.S. (214,) 227-30 ((1978)); see also (FBI v.) Abramson, 456 U.S. (615,) 626-27 ((1982)). 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 thus contravenes the obvious intent of the 1974 amendments to FOIA. See Hatcher (v. United States Postal Service), 556 F.Supp. (331,) 335 ((D.D.C. 1982)). We realize that compliance with the FOIA may compel the government to disclose matters that are ordinarily beyond the scope of discovery in criminal investigations and thus may enable a potential defendant to prepare responses to the investigation and to construct a defense to criminal charges. That is a concern that should be addressed to Congress, however. 4. The government filed a petition for rehearing and suggestion of rehearing en banc, which the court of appeals denied on November 8, 1988 (Pet. App. 17a). The government then filed a motion for a stay of the issuance of the mandate, and the court of appeals denied that motion on November 28, 1988. 5. On December 12, 1988, the district court held that the decision of the court of appeals required that the government turn over the Vaughn index to Corporation. The district court stayed its order requiring disclosure until December 16, 1988, so that the government could seek a stay from the Second Circuit. The government filed a notice of appeal from the district court's order on December 13, 1988, and filed a motion for stay in the Second Circuit on December 16, 1988. /5/ On December 29, 1988, the government filed a petition for a writ of certiorari seeking review of the Second Circuit's June 1988 decision. On January 10, 1989, the Second Circuit denied the government's motion for a stay. ARGUMENT The district court's December 12 order requires that the government turn over to Corporation the Vaughn index prepared in this case. Disclosure of that material would be likely to interfere with an important law enforcement investigation. /6/ Moreover, disclosure of the Vaughn index would moot that portion of the case before this Court has a chance to review it. And, unless this Court stays and recalls the mandate of the court of appeals, the district court may order release of the underlying documents, thus mooting the entire case. On an application for a stay pending the filing of a petition for a writ of certiorari, the applicant must show that (1) there is a "reasonable probability" that four Justices will consider the certiorari issue sufficiently meritorious to grant certiorari; (2) there is a "fair prospect" that a majority of the Court will conclude that the decision below on the merits was erroneous; and (3) that irreparable harm will result from the denial of a stay. In addition, in close cases, it may be appropriate to balance the equities, by exploring the relative harms to the parties and to the public at large. Rostker v. Goldberg, 448 U.S. 1306, 1308 (1980) (Brennan, J., in chambers). The existence of irreparable harm from the orders that the government seeks to stay is not open to reasonable dispute, nor is there any basis to doubt that the balance of equities cuts decidedly in favor of the grant of a stay. As stated in the declaration of Sean O'Shea, dated December 9, 1988, disclosure of the Vaughn index, as required by the district court's order of December 12, 1988, can reasonably be expected to interfere with an ongoing law enforcement investigation. /7/ Moreover, the required disclosure would render moot that part of the decision of the court of appeals that requires disclosure of the Vaughn index and thereby prevent the government from seeking this Court's review of that part of the decision -- an irreparable injury that supports the grant of a stay. See Providence Journal Co. v. FBI, 595 F.2d 889, 890 (1st Cir. 1979). Granting the requested stay will serve the public interest by preventing premature disclosure that will harm an ongoing criminal investigation until this Court has had an opportunity to review the important legal issue involved in this case. And, as the court of appeals itself expressly recognized (Pet. App. 8a), the decision below would provide respondent with information earlier than provided by the rules governing criminal discovery; that interest in premature criminal discovery -- the only interest of respondent's that is at issue with respect to this application -- deserves no weight in the balance of equities. The only debatable question, therefore, is whether the requisite fair prospect of a grant of certiorari and reversal exists. Although the decision below does not conflict with any decision of another court of appeals, we submit that it is so plainly wrong, and that its deleterious effect on law enforcement would be so great, that review by this Court is clearly warranted. /8/ 1. The statute does not use the phrase "originally compiled," nor does the word "compiled" itself connote a distinction between the original act of obtaining information and the act of gathering it from other sources -- inside or outside the government. /9/ To the contrary, The introduction of such a narrowing term ("originally") would undercut Congress' deliberate selection of the word "compiled" for usage in the statute. According to Websters' Ninth Collegiate Dictionary, the word "compile" means: to collect and edit into a volume; to compose out of materials from other documents; to run (as a program) through a compiler; to build up gradually . . . (1985). A compilation of information or materials "compiled" for law enforcement purposes therefore can be "composed out of materials from other documents" -- including other documents already generated or collected by the government for non-law enforcement purposes. Therefore, materials originally drafted, generated, or even compiled for one purpose -- even if that purpose is benign -- subsequently can be "compiled for law enforcement purposes." Gould Inc. v. GSA, 688 F. Supp. 689, 697-698 (D.D.C. 1988). The opinion of the court of appeals in the present case does not accord the word "compiled" its plain meaning or even acknowledge that the word, in ordinary usage, refers to an act that can be performed many times on the same documents or information. /10/ For example, the court stated (Pet. App. 7a) that the fact that "(t)he records were compiled in 1978" proved, without more, that they were "not 'compiled' for law enforcement purposes'" -- a theory analogous to saying, for example, that opinions of this Court collected in a constitutional law casebook could not have been compiled for the purpose of teaching a course in constitutional law because they were not originally generated for that purpose. Likewise, the court referred to the records in this case (Pet. App. 7a-8a) as "materials that were not investigatory records when compiled (but) have since acquired investigative significance." Yet the materials most assuredly did have investigative significance when compiled by John Doe Government Agency. Only by giving the word "compiled" something other than its ordinary meaning could the court of appeals reach the conclusion it did. Cf. Beech Aircraft Corp. v. Rainey, No. 87-981 (Dec. 12, 1988), slip op. 9-10 (criticizing lower court's interpretation of a rule of evidence because that interpretation unjustifiably departed from the precise words used in the rule and their dictionary definition). 2. The court of appeals also relied on the legislative history of the 1974 amendments to FOIA to support its reasoning. Even if we assume that the court of appeals was correct in looking to the legislative history at all, despite the plain language of the statute supporting the government's position, the court seriously misinterpreted the legislative record. In Ditlow v. Brinegar, 494 F.2d 1073 (D.C. Cir. 1974), the court held that everything found in an investigatory file compiled for law enforcement purposes was automatically exempt from mandatory disclosure under the then-current version of Exemption 7, 5 U.S.C. (1970 ed.) 552(b)(7). Fearing that agencies would use that rule to commingle otherwise nonexempt material with exempt material in law enforcement files, Congress amended the statute in 1974 to overrule Ditlow (and three other D.C. Circuit decisions). See generally NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 227-230 (1978) (surveying legislative history). Congress did not, however, change in any way the statutory phrase "compiled for law enforcement purposes." Rather, it changed the description of the exempted material from "investigatory files compiled for law enforcement purposes" (5 U.S.C. (1970 ed.) 552(b)(7) (emphasis added)) to "investigatory records compiled for law enforcement purposes" (5 U.S.C. (1982 ed.) 552(b)(7) (emphasis added)). /11/ In addition, Congress changed the status of having been "compiled for law enforcement purposes" from a sufficient condition for withholding to a necessary condition, adding the further requirement that the records meet one of six specific criteria. The clear thrust of the 1974 amendments is to make an agency and a court look at each individual record and to determine whether withholding that record is justified by one of six specific policies. In that way, unwarranted withholding by "commingling" is prevented. The court of appeals devised a completely dissimilar way to prevent withholding by "commingling," i.e., to construe the word "compiled" to mean "originally compiled." Yet the legislative history shows very plainly that Congress had another method altogether in mind for achieving its desired -- and quite different result. Congress wanted to do away with broad categorical determinations and substitute record-specific examination, yet the court of appeals has interpreted Congress's action as a mandate to engage in broad categorical determinations and to release records that fit precisely within the categories that Congress fashioned. That is a serious error. /12/ See generally Gould, 688 F. Supp. at 702. 3. The court of appeals essentially acknowledged that its opinion led to an anomalous result, but the court suggested that it was only following the dictates of the statute (Pet. App. 8a): We realize that compliance with the FOIA (as interpreted by the court of appeals) may compel the government to disclose matters that are ordinarily beyond the scope of discovery in criminal investigations and thus may enable a potential defendant to prepare responses to the investigation and to construct a defense to criminal charges. That is a concern that should be addressed to Congress, however. That reasoning, which would be unassailable if the court had indeed reached a result compelled by the statute's plain language or shown by the legislative history to be Congress's clear intention, rings hollow in light of the court's departure from the plain language of the statute and its adoption of an approach that is not supported by the legislative history. Cf. FBI v. Abramson, 456 U.S. 615, 625 n.7 (1982). Moreover, the court's reasoning markedly departs from the approach that this Court took in FBI v. Abramson, supra. The issue in that case -- closely related to the issue here -- was whether information originally compiled for law enforcement purposes and meeting the other criteria of Exemption 7 lost its exempt status when it was recompiled for non-law-enforcement purposes. In answering that question in the negative, the Court reasoned that the statutory language and legislative history were ambiguous and that therefore the Court would answer the question presented by reference to "the intention of Congress, * * * the structure of the Act, and * * * the purposes of the statute" (456 U.S. at 625 (footnote omitted)). Significantly, in assessing those guides to Congress's intent, the Court specifically ruled that "(t)he enumeration of (six) categories of undesirable consequences (in Exemption 7) indicates that Congress believed the harm of disclosing this type of information would outweigh its benefits" (id. at 627-628). The Court found "nothing to suggest, and no reason for believing, that Congress would have preferred a different outcome simply because the information is now reproduced in a non-law-enforcement record" (id. at 628). The rationale of Abramson indicates that "compiled for law enforcement purposes" is not to be construed as a high, or highly technical, barrier to claims of exemption. Rather, in light of the 1974 amendments, the emphasis should be placed on the six criteria that Congress specified as prerequisites to withholding. The requirement that records or information be "compiled for law enforcement purposes" is not meaningless, but neither is it to be construed in a restrictive or non-functional way. To the extent that there is ambiguity in that statutory requirement as applied to a particular case, Abramson teaches that it should be resolved in favor of deeming a particular record to be a law enforcement record and disclosing it or not disclosing it depending on the application of subsections (A)-(F) of Exemption 7. Congress has recently expressed approval of the practical approach adopted by this Court in Abramson. See S. Rep. 98-221, 98th Cong., 1st Sess. 23 (1983) (containing pertinent discussion and citing Abramson twice with apparent approval). Exemption 7, as amended in 1986, applies to "records or information compiled for law enforcement purposes." The amendment plainly is designed "to ensure that sensitive law enforcement information is protected under Exemption 7 regardless of the particular format or record in which it is maintained." Ibid. (emphasis added). /13/ Congress's most recent view of how Exemption 7 is to be applied is thus very much at odds with the hypertechnical approach of the court of appeals in this case. /14/ The court's decision is also at odds with earlier pronouncements of this Court concerning the purposes of Exemption 7. In NLRB v. Robbins Tire & Rubber Co., 437 U.S. at 224-225 (citations omitted), this Court summarized those purposes: In originally enacting Exemption 7, Congress recognized that law enforcement agencies had legitimate needs to keep certain records confidential, lest the agencies be hindered in their investigations or placed at a disadvantage when it came time to present their cases. Foremost among the purposes of this Exemption was to prevent "harm (to) the Government's case in court" * * * by not allowing litigants "earlier or greater access" to agency investigatory files than they would otherwise have * * *. See also Alyeska Pipeline Service Co. v. EPA, 856 F.2d 309, 313 (D.C. Cir. 1988). Such "earlier or greater access" is precisely what the court of appeals has given respondent in this case -- as the court acknowledged (Pet. App. 8a). 4. Even if there were more substantial grounds to support the decision of the court of appeals, the issue presented is of such importance that it would merit this Court's review. If the decision of the court of appeals stands, it will seriously impair the ability of numerous federal agencies to conduct their law enforcement responsibilities. Many agencies -- such as those involved with defense or other government contracts, the Drug Enforcement Administration, and the Internal Revenue Service -- collect through routine monitoring functions information that later becomes an essential part of a criminal (or other) law enforcement investigation. /15/ The ruling of the court of appeals would require federal agencies to segregate and disclose all such records or information even though those records or information were, at the time of the FOIA request, an integral part of a legitimate, ongoing criminal (or other law enforcement) investigation. /16/ Such disclosure would prematurely alert potential defendants to the existence of an investigation, identify strengths and weaknesses of the government's case, and disclose the specific focus of a grand jury (or other) investigation. That is precisely why Congress has refrained from authorizing premature criminal discovery in any other context, and we submit it has not done so here. /17/ Before the Freedom of Information Act is to be construed to make so serious an inroad on effective law enforcement -- in the major investigation underlying this case and in many others as well -- this Court's attention is appropriate and necessary. Because the question presented by this case warrants a grant of certiorari, and because factors bearing on the propriety of a stay cut clearly in favor of granting relief, a stay should be granted pending the disposition of the government's petition for a writ of certiorari. CONCLUSION The mandate of the Second Circuit should be recalled and stayed, and the district court's disclosure order should be stayed, pending the disposition of a petition for a writ of certiorari. Respectfully submitted. CHARLES FRIED Solicitor General Department of Justice Washington, D.C. 20530 (202) 633-2217 JANUARY 1989 FOOTNOTES /1/ The papers in this case were sealed by order of the court of appeals. In its public opinion, the court of appeals refers to the defendants, which are entities of the federal government, as John Doe Agency and John Doe Government Agency. We continue those designations in this application. /2/ The Vaughn index (see Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974)) describes the documents that are being withheld by the Government pursuant to Exemption 7 of the Freedom of Information Act, 5 U.S.C. (& Supp. IV) 552(b)(7). The index was presented to the district court in camera. /3/ Exemption 7 exempts from mandatory disclosure "records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information" gives rise to one or more of six specified harms. 5 U.S.C. (& Supp. IV) 552(b)(7). In the present case, the district court determined that disclosure of the requested records, or even the Vaughn index, "could reasonably be expected to interfere with enforcement proceedings" (5 U.S.C. (Supp. IV) 552(b)(7)(A)). /4/ The case will certainly become moot in part, and may become entirely moot (if the district court enters orders requiring disclosure of the underlying documents), through the release of documents if the Court denies the stay that we are hereby requesting. The case may also become moot if the law enforcement investigation of John Doe Corporation terminates or if the grand jury indicts John Doe Corporation and the requested documents are made available through criminal discovery. /5/ The appeal from the district court's disclosure order is predicated on our belief that the June 1988 decision of the court of appeals (850 F.2d 105), on which the district court's order is based, is incorrect. If our appeal becomes moot because this Court denies the stay that we are now requesting and the Vaughn index is released, or if this Court does not ultimately reverse the Second Circuit's June 1988 decision, we will dismiss the appeal from the district court's order of December 12, 1988. /6/ The district court so determined, and the court of appeals did not disagree. Instead, the court of appeals regarded that consideration as irrelevant to the proper disposition of this case. /7/ Such disclosure would reveal to Corporation information from which it can prematurely ascertain the basis of the ongoing investigation. Release of the Vaughn index could reasonably be expected to (1) "provide plaintiff with valuable clues concerning the grand jury's strategy and the direction of its inquiry" (O'Shea declaration 2); (2) "apprise plaintiff, by negative inference, of types or classes of documents which may not yet have been reviewed by the grand jury, thereby creating the potential for such documents to be placed permanently beyond the grand jury's reach and hindering its investigation" (ibid.); and (3) "create the potential for plaintiff to * * * 'tailor its responses to Government's inquiries so as to provide the least possible relevant information * * * (thereby tending) to frustrate the (grand jury's) proceedings'" (ibid. (quoting Fedders Corp. v. FTC, 494 F. Supp. 325, 329 (S.D.N.Y.), aff'd mem., 646 F.2d 560 (2d Cir. 1980))). /8/ The decision of the court of appeals does conflict with the recent decision in Gould Inc. v. GSA, 688 F. Supp. 689 (D.D.C. 1988), in which Judge Sporkin analyzed the issue carefully and at length, and reached the opposite conclusion from that reached by the court of appeals, and the even more recent decision in Raytheon Co. v. Department of the Navy, Civ. No. 88-0094 (D.D.C. Jan. 5, 1989), slip op. 8-9. See also Fedders Corp. v. FTC, supra. But see Hatcher v. United States Postal Service, 556 F. Supp. 331, 335 (D.D.C. 1982); Goldschmidt v. United States Dep't of Agriculture, 557 F. Supp. 274, 276 (D.D.C. 1983). /9/ Under the analysis of the court of appeals, a federal law enforcement agency such as John Doe Government Agency "compiles" auditing records for law enforcement purposes when it gets them from, for example, Price Waterhouse or Arthur Andersen, but not when it gets them from another government agency, such as John Doe Agency. Such a rule hardly comports with the plain meaning of the word "compile." /10/ This Court, by contrast, has specifically recognized -- in the context of Exemption 7 -- that documents can be compiled more than once. See FBI v. Abramson, 456 U.S. 615, 622 n.5 (1982) (rejecting argument "that information admittedly compiled in a law enforcement record loses its exemption when recompiled"). /11/ The statute has since been further amended, in an effort to expand its reach, to cover "records or information compiled for law enforcement purposes," without any requirement that the records or information be "investigatory" (5 U.S.C. (Supp. IV) 552(b)(7) (emphasis added)). See generally Attorney General's Memorandum on the 1986 Amendments to the Freedom of Information Act 5-9 (1987) (summarizing change to Exemption 7 threshold test, its legislative history, and its proper interpretation). /12/ In essence, the court of appeals has concluded that reading "compiled" to mean "originally compiled" will serve Congress's objective of preventing withholding by commingling and therefore must be the proper interpretation of the statute. "But no legislation pursues its purposes at all costs. Deciding what competing values will or will not be sacrificed to the achievement of a particular objective is the very essence of legislative choice -- and it frustrates rather than effectuates legislative intent simplistically to assume that whatever furthers the statute's primary objective must be the law." Rodriguez v. United States, 480 U.S. 522, 525-526 (1987). Here, Congress did not merely prohibit exemption by commingling; it also indicated the criteria by which records qualifying for the exemption are to be differentiated from the commingled records that do not qualify -- criteria that differ substantially from the broad-brush approach of the court of appeals. /13/ This report, which concerned a predecessor bill to what eventually became the 1986 amendments to Exemption 7, is recognized as authoritative concerning the meaning of those amendments. See King v. Department of Justice, 830 F.2d 210, 229 n.141 (D.C. Cir. 1987); 132 Cong. Rec. S14296 (daily ed. Sept. 30, 1986) (statement of Sen. Leahy) (Senate Report 98-221 "sets out the legislative history which should be considered to determine the scope of the section we are adopting in this bill"). /14/ The 1986 amendments, which apply fully to this case, were "intended to broaden the reach of this exemption and to ease considerably a Federal law enforcement agency's burden in invoking it." Irons v. FBI, 811 F.2d 681, 687 (1st Cir. 1987) (quoting 132 Cong. Rec. S16504 (daily ed. Oct. 15, 1986) (statement of Sen. Hatch)). See also, e.g., Arenberg v. DEA, 849 F.2d 579, 581 (11th Cir. 1988) ("It is quite clear * * * that Congress did not intend to jeopardize law enforcement activities by the Freedom of Information Act."). /15/ The federal agencies that have expressed to us their concerns about the harmful impact that the decision below could have on their ability to enforce the law include the Consumer Product Safety Commission, the Defense Contract Audit Agency, the Department of Commerce, the Department of Education, the Department of Labor, the Department of the Navy, the Department of State, the Department of the Treasury (on behalf of the Bureau of Alcohol, Tobacco, and Firearms, the Customs Service, and the Office of Foreign Assets Control), the Federal Bureau of Investigation, the Federal Trade Commission, the Internal Revenue Service, the Postal Service, the Small Business Administration, and the Antitrust, Civil, and Criminal Divisions of the Department of Justice. /16/ Although the records at issue in this case all came to the agency that now has them from a single other government agency, that will not necessarily be true in future cases in which targets of law enforcement requests seek premature criminal discovery under the decision below. The decision of the court of appeals presumably would require the law enforcement agency to sift through its files, which may come from many sources, and determine the original source of each record in order to determine whether it was "compiled" (in the sense in which the court of appeals used that word) originally for law enforcement purposes. That task -- which serves no policy goal that Congress could conceivably have had in mind -- could take on extremely burdensome proportions. /17/ In addition, although this case directly concerns Exemption 7(A), the panel's ruling construes the threshold requirement to all of Exemption 7, and thus would presumably prevent the government from invoking the protections provided by the other subsections of Exemption 7, including the protection of confidential informants, the privacy of innocent individuals named in law enforcement records, and the protection of the lives or physical safety of law enforcement officers or others identified in such records. See 5 U.S.C. (Supp. IV) 552(b)(7)(B)-(F). APPENDIX