Before ROBINSON, Chief Judge, BAZELON, Senior Circuit Judge, and ROBB, Circuit Judge.
UNITED STATES COURT OF APPEALS, DISTRICT OF COLUMBIA CIRCUIT
Appeal from the United States District Court for the District of Columbia (Civil Action No. 80-01172).
Opinion for the Court filed by Circuit Judge ROBB.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE ROBB
This is an action under the Freedom of Information Act, 5 U.S.C. § 552 (1976 & Supp. IV 1980), by Playboy Enterprises, Inc. against the Department of Justice. Playboy seeks to compel disclosure of a report prepared by the Department's Office of Professional Responsibility. The report relates to the activities of one Gary Thomas Rowe, Jr., an FBI informant, and the treatment of Rowe by the FBI. The Department asserted in the District Court that certain parts of the report are protected by various provisions of the FOIA, and in addition contended that the entire report is exempt from disclosure under 5 U.S.C. § 552(b)(5) (1976), known as Exemption 5. Exemption 5 provides that the Freedom of Information Act "does not apply to matters that are ... 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." The District Court accepted the Department's claims of protection for specific parts of the report, but rejected the all-inclusive Exemption 5 argument. The Department appeals, alleging that the court misapplied Exemption 5.
In July of 1978 the New York Times published a series of articles concerning allegations that in the early 1960s G. Thomas Rowe, Jr., had committed violent crimes while working as an FBI informant inside the Ku Klux Klan. The newspaper stories were followed by an ABC television "documentary" program suggesting that in March of 1965 Rowe fired the bullet which killed Viola Liuzzo, a civil rights worker. Mrs. Liuzzo was shot while traveling an Alabama highway on her return from participation in the Selma to Montgomery freedom march.
In response to these stories, Senators Kennedy and Abourezk, the Chairman and a member of the Senate Judiciary Committee, submitted a written request to the Department for a report on the matter. After a preliminary investigation by the Department's Office of Professional Responsibility, the Attorney General, on October 24, 1978, established a task force within that office to make a detailed report. On November 2, 1978 the Attorney General set out three issues for the task force to explore:
(1) Whether FBI personnel acted improperly in handling Mr. Gary Thomas Rowe while he served as a Bureau Informant within the United Klans of America ;
(2) Whether Civil Rights Division attorneys, who tried United States v. Eaton, et al. (the federal civil rights case arising out of the highway murder of Mrs. Viola Liuzzo), were aware of Mr. Rowe's alleged unreliability or suspected he was unreliable; and
(3) Whether there is any evidence to substantiate the allegation that Mr. Rowe was responsible for the death of Mrs. Viola Liuzzo (to the extent this is possible without prejudicing the rights of Mr. Rowe or the State of Alabama in view of Mr. Rowe's recent state indictment for the murder).
In July of 1979, after working on the investigation for more than eight months, the task force submitted a 302-page document to the Attorney General, called the "Rowe Report." In preparing the Report, the task force reviewed approximately 800 volumes of FBI records located in Atlanta, Birmingham, Mobile, Savannah, and Washington, D.C., and conducted sixty-four interviews of past and present FBI agents, Justice Department attorneys, state and local law enforcement officials, FBI informants, and Ku Klux Klan members. On December 15, 1980, after this litigation began, the Attorney General submitted to Senator Kennedy a twenty-five page "Summary of Results" of the investigation.
On March 21, 1980 Playboy submitted a FOIA request for the Rowe Report. On April 4, 1980, having received no response from the Department, Playboy filed an administrative appeal. On April 11, 1980 the Department denied Playboy's March 21 request, claiming the entire Report was ...