The opinion of the court was delivered by: KNAPP
Plaintiff in this Freedom of Information Act suit is an attorney who is writing a book on the constitutional implications of firearms control laws and their enforcement. He seeks disclosure of withheld portions of a pamphlet entitled "Raids and Searches" from the Bureau of Alcohol, Tobacco, and Firearms. The matter is now before us on cross-motions for summary judgment.
Pursuant to subsection (a)(4)(B) of 5 U.S.C. § 552 ["the Act"], the agency has submitted the entire pamphlet to the Court for in camera inspection. Upon inspection we have found that the withheld portions include descriptions of the equipment used in raids, methods of gaining entry to buildings by "force or strategy", factors relating to the timing of raids, techniques used by suspects to conceal contraband, and other topics.
Rex D. Davis, the director of the agency, has submitted an affidavit outlining section-by-section the agency's reasons for non-disclosure. Davis asserts that disclosure of various sections would hinder investigations, enable violators to avoid detection, and jeopardize the safety of government agents. We believe that release of some sections could indeed have these effects. However, the techniques described in other sections the agency seeks to withhold are matters of common knowledge and their disclosure could have no appreciable impact on enforcement. In support of non-disclosure the agency invokes the Act's (b)(2) and (b)(7) exemptions, as well as subsection (a)(2)(C).
Plaintiff has cited no cases, and our research has not uncovered any, in which courts have ordered release of a manual where the effect would be to impede enforcement or endanger agents. Courts that have considered disclosure of such material have exempted it under one or another of the provisions here relied on by the agency. However, after careful consideration of the cases, as well as the Act's language and legislative history, we are unable to conclude that any of those provisions apply. We are nonetheless hesitant to order disclosure of such sensitive material, especially in light of Congress' exemption from mandatory disclosure of identical material where contained in "investigatory records compiled for law enforcement purposes."
Because release here could lead to such regrettable consequences, and because Congress has so clearly indicated its concern over disclosure of "investigatory techniques" in other contexts, we feel that this case is one in which a court is warranted in exercising equitable discretion to decline to order disclosure under the Act.
We will first consider the provisions relied upon by the agency (which we find not to warrant withholding disclosure) and then discuss the exercise of our equitable discretion (which we have decided to exercise in favor of withholding some material).
I. Provisions Relied on by the Agency.
The agency claims that the withheld portions fall under the terms of subsection (b)(2), which exempts from mandatory disclosure matters "related solely to the internal personnel rules and practices of an agency." The Court of Appeals for this Circuit has noted that the House and Senate Reports on the (b)(2) exemption "diametrically clash". Rose v. Department of Air Force (2d Cir. 1974) 495 F.2d 261, 264, aff'd 425 U.S. 352, 48 L. Ed. 2d 11, 96 S. Ct. 1592 (1976). The Senate Report stated:
"Exemption No. 2 relates only to the internal personnel rules and practices of an agency. Examples of these may be rules as to personnel's use of parking facilities or regulations of lunch hours, statements of policy as to sick leave, and the like." S. Rep. No. 813, p.8.
The House Report on the other hand commented:
"2. Matters related solely to the internal personnel rules and practices of any agency: Operating rules, guidelines, and manuals of procedure for Government investigators or examiners would be exempt from disclosure, but this exemption would not cover all 'matters of internal management' such as employee relations and working conditions and routine administrative procedures which are withheld under the present law." H.R.Rep. No. 1497, p.10.
The Court of Appeals in Rose did not find it necessary to resolve this conflict.
Now faced with that necessity, we conclude that "personnel rules and practices", by the plain meaning of those words, relate only to issues concerning conditions of employment of the type on which the Senate Report focused. Accord, see Hawkes v. Internal Revenue Service (6th Cir. 1972) 467 F.2d 787, 797. The withheld portions manifestly are not of this ...