John Doe v. John Doe/Dissent Stevens

Justice STEVENS, dissenting.

In order to justify the application of Exemption 7 of the Freedom of Information Act (FOIA), the Government has the burden of demonstrating that a request calls for "records or information compiled for law enforcement purposes." The Government can sustain that burden in either of two ways: (1) by demonstrating that the requested records and information were originally compiled for law enforcement purposes, or (2) by demonstrating that even though they had been generated for other purposes, they were subsequently recompiled for law enforcement purposes.

The Court states the correct standard for a "compilation," but then inexplicably fails to apply it to the facts of this case. Ante, at 155, n. 6. A compilation is "something composed of materials collected and assembled from various sources or other documents." Ante, at 153. It is not sufficient that the Government records or information "could reasonably be expected to interfere with enforcement proceedings." 5 U.S.C. § 552(b)(7)(A). The Exemption is primarily designed to protect law enforcement agencies from requests for information that they have gathered for law enforcement purposes. Therefore, under the FOIA, records or information whose production would interfere with enforcement proceedings are exempt only when, by virtue of their "incorporat[ion] in a law enforcement 'mosaic,' " Gould Inc. v. General Services Administration, 688 F.Supp. 689, 698 (DC 1988), they take on law enforcement significance. In this case, the proper application of these principles is clear.

It is undisputed that the original FOIA request to the Defense Contract Audit Agency (DCAA) called for documents that had been compiled by that agency for non-law-enforcement purposes and that the documents were still in the possession of the agency at the time the request was received. Indeed, they were still in the DCAA's possession on November 18, 1986, when the request was denied. The claim that the documents were "compiled" is supported only by a letter stating that the DCAA had been advised by the United States' Attorney's Office that the documents were exempt under the law enforcement Exemption and an averment in an affidavit of counsel that the documents were transferred to the FBI's custody on November 20, 1986, after the Government had invoked the Exemption. #fn-s-1

The Court has repeatedly emphasized, what is explicit in the terms of the FOIA, that "the burden is on the agency to sustain its action." 5 U.S.C. § 552(a)(4)(B); see ante, at 152; Department of Justice v. Tax Analysts, 492 U.S. 136, 142, n. 3, 109 S.Ct. 2841, 2846, n. 3, 106 L.Ed.2d 112 (1989); Department of Justice v. Reporters Committee for Freedom of Press, 489 U.S. 749, 755, 109 S.Ct. 1468, 1472, 103 L.Ed.2d 774 (1989). The basic policy of the Act "is in favor of disclosure." NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 220, 98 S.Ct. 2311, 2316, 57 L.Ed.2d 159 (1978). As I understand the record in this case, the Government has at most established a request by a prosecutor that the requested documents be kept secret and a naked transfer of otherwise nonexempt documents from a civilian agency to the FBI. Such a transfer is not a compilation. That is what I understand to be the Court of Appeals' holding, and I am persuaded that it was entirely correct. The Government has not met its burden under the FOIA and there is no reason why it should be given a second opportunity to prove its case.

I respectfully dissent.