CHURCH OF SCIENTOLOGY OF CALIFORNIA, a non-profit corporation, Plaintiff-
Appellant,
UNITED STATES POSTAL SERVICE, Benjamin Bailer, Postmaster General, Postal
Inspection Service, William J. Cotter, Chief Inspector, Defendants-Appellees.
Ninth Circuit.
A church appealed from a summary judgment entered against it in the United
States District Court for the Central District of California, Manuel L. Real,
J., in its Freedom of Information Act suit against the Postal Service seeking
release of records assertedly gathered during the course of law enforcement
investigations of the church and its members.  The Court of Appeals, Ely,
Circuit Judge, held that remand was necessary to permit the trial court to
consider the effect of intervening amendments to the Freedom of Information
Reversed and remanded.
In suit by church against Postal Service to obtain, under Freedom of
Information Act, release to church of records assertedly gathered during course
of law enforcement investigations of church and its members, remand to trial
court was necessary to permit it to consider effect of intervening amendments
to Freedom of Information Act affecting exemption of records specifically
exempted by law.  5 U.S.C.A. ss 552, 552(a)(3), (b), (b)(3, 5-7),
552b;  39 U.S.C.A. ss 101 et seq., 410(b)(1), (c)(6).
*902 Barry L. Weissman (argued), Beverly Hills, Cal., for plaintiff-
appellant.
Leonard Schaitman of Dept. of Justice, Washington, D. C., Mark N. Mutterperl
(argued), of Dept. of Justice, Washington, D. C., for defendants-appellees.
Appeal from the United States District Court for the Central District of
Before ELY and TRASK, Circuit Judges, and EAST,[FN*] District Judge.
FN* Honorable William G. East, Senior District Judge, District of Oregon,
sitting by designation.
ELY, Circuit Judge:
The Church of Scientology of California (the Church) appeals from a summary
judgment entered against it and in favor of the United States Postal Service.
The District Court upheld the refusal of the Postal Service to release to the
Church a number of records assertedly gathered during the course of law
enforcement investigations of the Church and its members.
*903 I.
The Church filed its Freedom of Information Act (FOIA) request [FN1] with the
Postal Service seeking access to information compiled by the service relating
to the Church, any of its affiliated organizations, or its founder, L. Ron
Hubbard.  After conducting an extensive search of its files, the Postal Service
released numerous documents to the requestor.  Not all the information in its
files relating to the Church and its activities was disclosed, however.  A
number of documents were withheld from disclosure as the alleged fruits of
Postal Inspection Service investigations of possible criminal offenses.[FN2]
FN1. The Postal Reorganization Act, 39 U.S.C. s 101 Et seq., extended
the reach of the FOIA, 5 U.S.C. s 552, to the newly created Postal
Service.  39 U.S.C. s 410(b)(1).  Pursuant thereto, the appellant
requested that the Postal Service provide it with certain records, in
accordance with 5 U.S.C. s 552(a)(3), which reads in pertinent part:
(3) . . .  each agency, upon any request for records which (A) reasonably
describes such records and (B) is made in accordance with published
rules . . .  shall make the records promptly available to any person.
FN2. The Postal Service also resisted disclosing an additional fourteen
pages of materials, contending that release of the information would
constitute a clearly unwarranted invasion of personal privacy within the
meaning of 5 U.S.C. s 552(b)(6) (Exemption 6).  At oral argument, the
Government's attorney represented to the panel that these materials would
be turned over to the Church.  In reliance upon such representations, we
hold that the questions raised by the withholding of these fourteen pages
are moot; hence, we do not reach the Exemption 6 issue.
When the refusal to disclose was challenged in the District Court, the Postal
Service defended its withholding on the basis of Exemption 3 of the FOIA [FN3]
and the investigatory file exemption of the Postal Reorganization Act, 39
U.S.C. s 410(c)(6).[FN4]  After examining the requested materials In camera,
the District Court adopted the Government's characterization of the records as
having been compiled during law enforcement investigations.  The District Court
also concluded that 39 U.S.C. s 410(c)(6) was a specific exempting statute
of the sort described in FOIA Exemption 3; therefore, the Church's request for
the Postal Service documents was denied.  Because it concluded that the Postal
Reorganization Act's s 410(c)(6) specifically excluded Postal Service
investigatory files from FOIA compelled disclosure, the District Court did not
reach the Government's alternative grounds for nondisclosure based upon
Exemptions 5 and 7.[FN5]
FN3. At the time the District Court entered its judgment, Exemption 3
excepted from the disclosure requirements of the FOIA any information
"specifically exempted from disclosure by statute."  As discussed Infra,
Exemption 3 was subsequently amended to read as follows:
(b) This section does not apply to matters that are
(3) specifically exempted from disclosure by statute (other than section
552b of this title), provided that such statute (A) requires that the
matters be withheld from the public in such a manner as to leave no
discretion on the issue, or (B) establishes particular criteria for
withholding or refers to particular types of matters to be withheld . . . .
FN4. The investigatory files exemption claimed by the Postal Service,
39 U.S.C. s 410(c)(6), reads as follows:
(c) Subsection (b)(1) of this section shall not require the disclosure of
(6) investigatory files, whether or not considered closed, compiled for law
enforcement purposes except to the extent available by law to a party other
than the Postal Service.
FN5. Exemptions 5 and 7 except from the disclosure requirements of the
FOIA inter-agency or intra-agency memorandums and law enforcement
investigatory files, respectively.  The exemptions read as follows:
(5) inter-agency or intra-agency memorandums or letters which would not be
available by law to a party other than an agency in litigation with the
agency;
(7) investigatory records compiled for law enforcement purposes, but only
to the extent that the production of such records would (A) interfere with
enforcement proceedings, (B) deprive a person of a right to a fair trial or
an impartial adjudication, (C) constitute an unwarranted invasion of
personal privacy, (D) disclose the identity of a confidential source and,
in the case of a record compiled by a criminal law enforcement authority in
the course of a criminal investigation, or by an agency conducting a lawful
national security intelligence investigation, confidential information
furnished only by the confidential source, (E) disclose investigative
techniques and procedures, or (F) endanger the life or physical safety of
law enforcement personnel . . . .
*904 We remand to the District Court in order that it may consider the
impact of recent amendments to the FOIA as well as pertinent legislative
history.  Both shed light as to the manner in which the exemptions raised by
the Government should be construed.
Since the time of the challenged Order, filed December 19, 1975, Congress
amended the FOIA [FN6] by qualifying Exemption 3 with conditions that a statute
must satisfy if it is to be considered as one specifically exempting
disclosure.  Thus, as amended, Exemption 3 now provides that an exempting
statute must either (A) require that information in an agency's possession be
withheld from the public in such a manner as to leave No discretion on the
issue, or (B) establish particular criteria for withholding information or
refer with particularity to the types of matters to be withheld.
FN6. Government In The Sunshine Act, Pub.L. No. 94-409, enacted September
13, 1976 and made effective 180 days thereafter.
We have recently held that the amended version of FOIA Exemption 3 should
govern the actions of a government agency, even though the amendment did not
become effective until the time of an appeal already pending.  Lee
Pharmaceuticals v. Kreps, 577 F.2d 610, 614 (9th Cir. 1978).  The legislative
history to the amendment clearly evinces Congress' intention to overrule the
Supreme Court's expansive interpretation given to the original version of
Exemption 3 in Administrator, FAA v. Robertson, 422 U.S. 255, 95 S.Ct. 2140,
45 L.Ed.2d 164 (1972).  Some of the more significant history reads:
Believing that the decision misconceives the intent of exemption (3), the
committee recommends that the exemption be amended to exempt only material
Required to be withheld from the public by any statute establishing particular
criteria or referring to particular types of information.
H.R.Rep.No.94-880, 94th Cong. 2d Sess. (1976), reprinted in 3 U.S.Code Cong.
and Admin.News, pp. 2183, 2205.  (Emphasis added.)
The consideration of deference leads us to believe that the District Court
should be allowed the first opportunity to consider whether 39 U.S.C. s
410(c) (6) qualifies as an exempting statute within the meaning of 5 U.S.C.
s 552(b) (3), as amended.[FN7]
FN7. In the event the District Court finds that 39 U.S.C. s 410(c)(6)
is a specific exempting statute of the kind referred to in Exemption 3 of
the FOIA, as amended, then the District Court must also address the issue
of whether the Postal Service has complied with its own regulation, found
at 39 C.F.R. s 265.6(c).  General Services Administration v. Benson,
415 F.2d 878, 880 (9th Cir. 1969) ("Regulations reasonably adapted to the
administration of a congressional act, and not inconsistent with any
statute, have 'the force and effect of law.' " (citations omitted).) The
Government contends that the regulation invests the Postal Service with
discretion either to release to or withhold from a requestor investigatory
files.  See 39 C.F.R. s 265.6(c), which reads as follows:
(c) Investigatory records.  (1) Investigatory files compiled for law
enforcement purposes, whether or not considered closed, are exempt by
statute from mandatory disclosure except to the extent otherwise available
by law to a party other than the Postal Service, 39 U.S.C. s 410(c)(6).
As a matter of policy, however, the Postal Service will normally make
investigatory records available upon request unless the production of these
records would:
(i) Interfere with enforcement proceedings,
(ii) Deprive a person of a right to a fair trial or an impartial
adjudication,
(iii) Constitute an unwarranted invasion of personal privacy,
(iv) Disclose the identity of a confidential source, and, in the case of a
record compiled by the Postal Inspection Service in the course of a
criminal investigation or of a lawful national security intelligence
investigation, confidential information furnished only by the confidential
(v) Disclose investigative techniques and procedures, or
(vi) Endanger the life or physical safety of law enforcement personnel.
(2) Authority to disclose investigatory records to persons outside the
Postal Service must be obtained from the Chief Postal Inspector, United
States Postal Service, Washington, D.C. 20260, or his designee.
The initial assumption found within the regulation, that law enforcement
files of the Postal Service are unqualifiedly exempt from mandatory
disclosure, is, of course, the very issue to be addressed by the District
Court on remand.  As a matter of internal policy, the Postal Service has
adopted, by means of this regulation, the investigatory records standards
imposed upon most other governmental agencies by Exemption 7.  See note 5,
Supra.  The Postal Service has argued that by including the word "normally"
within the regulation, that the Postal Service has retained discretion to
withhold requested information irrespective of whether one of the
regulation's enumerated harms exists.  We question whether such an
interpretation could be harmonized with Congress' expressed intent when it
limited the scope of Exemption 3 of the FOIA by depriving agency
administrators of discretion to disclose information under their control.
See Lee Pharmaceuticals v. Kreps, supra, 577 F.2d at 615.  We suggest,
as an alternative to the Government's interpretation, a reading of the
regulation that would require the Postal Service to release investigatory
files in the Normal case.  Thus, in accord with this alternative
interpretation, only in the exceptional case when the Postal Service
demonstrates the existence of one of the six enumerated dangers could the
Postal Service justify a denial of a request for disclosure.
In the event the District Court finds that 39 U.S.C. s 410(c)(6) did not
survive as a specific statutory exemption following the amendment to
Exemption 3 in 1976, the District Court nonetheless should consider whether
the documents are properly withheld under Exemptions 5 and 7, the
alternative grounds raised by the Postal Service in the District Court.