Michael Alan Crooker v. Bureau of Alcohol, Tobacco & Firearms
216 U.S. App. D.C. 232, 670 F.2d 1051 (1981)
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Rule of Law:
Under the Freedom of Information Act (FOIA), Exemption 2 protects from mandatory disclosure documents that are predominantly internal and whose disclosure would create a significant risk of circumvention of agency regulations or statutes, including law enforcement manuals detailing investigative techniques.
Facts:
- Michael Crooker, a federal prisoner, filed a Freedom of Information Act (FOIA) request with the Bureau of Alcohol, Tobacco & Firearms (BATF).
- Crooker sought a copy of an agency manual entitled 'Surveillance of Premises, Vehicles and Persons — New Agent Training.'
- Following an administrative appeal, the Director of BATF released the manual but withheld portions that detailed methods and techniques for conducting surveillance of criminal suspects.
- The Director of BATF asserted in an affidavit that releasing the withheld portions 'would benefit those attempting to violate the law and avoid detection.'
- Crooker did not contest the government's factual assertion that releasing the complete manual would risk circumvention of the law.
Procedural Posture:
- Michael Crooker filed a pro se complaint in the U.S. District Court seeking to compel the BATF to produce the entire training manual.
- Both Crooker and the Government filed motions for summary judgment, with the Government submitting the manual for in camera inspection.
- The District Court granted the Government's motion for summary judgment, holding the material was protected from disclosure under Exemption 2.
- Crooker appealed the District Court's decision to the U.S. Court of Appeals for the D.C. Circuit.
- A three-judge panel of the Court of Appeals reversed the District Court, holding that under circuit precedent the manual was not protected by Exemption 2.
- A majority of the full Court of Appeals then voted to vacate the panel's opinion and rehear the case en banc.
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Issue:
Does Exemption 2 of the Freedom of Information Act (FOIA), which exempts matters "related solely to the internal personnel rules and practices of an agency," permit a federal agency to withhold portions of a law enforcement training manual where disclosure would risk circumvention of the law?
Opinions:
Majority - Edwards, Circuit Judge
Yes. A document is exempt from disclosure under Exemption 2 if it is for predominantly internal purposes and its disclosure significantly risks circumvention of agency regulations or statutes. The court establishes a two-part test requiring that the material be 1) 'predominantly internal,' and 2) that its disclosure creates a 'significant risk' of circumvention of the law. This approach rejects the narrow interpretation from this court's prior decision in Jordan v. U.S. Dep't of Justice, which limited Exemption 2 to trivial 'house-keeping' matters. The court finds the House Report on FOIA, which explicitly mentioned exempting investigator manuals, to be more persuasive on this issue than the Senate Report's focus on minor employment matters. It also looks to the overall structure of FOIA, noting that other exemptions (like 7(E)) show a broader congressional intent to protect law enforcement methods. The result in Jordan is distinguished on the grounds that the prosecutorial guidelines at issue there constituted 'secret law' regulating the public and were not 'predominantly internal,' unlike the BATF surveillance manual, which only instructs agents on how to observe public behavior.
Dissenting - Wilkey, Circuit Judge
No. Exemption 2 does not permit an agency to withhold a law enforcement training manual on the basis of circumvention risk. The majority improperly overrules the court's recent en banc decision in Jordan, which correctly interpreted Exemption 2. The plain language of the exemption, specifically the word 'personnel,' points to minor employment matters, not substantive law enforcement techniques. The Senate Report, which was before both houses of Congress, is the authoritative legislative history and supports this narrow reading. The conflicting House Report was 'last minute chicanery' and should be disregarded. Furthermore, the majority's new two-part test is unworkable, as a document cannot logically be both 'predominantly internal' and also have a public impact significant enough to enable circumvention of the law.
Concurring - MacKinnon, Circuit Judge
Yes. The manual is exempt from disclosure. The dissent's reliance on Jordan is misplaced because the rationale in that case did not command a true majority, given the separate concurrences focusing on 'secret law' and 'predominant internality.' The House and Senate reports are not contradictory; the Senate report provided non-exclusive 'examples' of exempt materials, while the House report provided other, more substantive examples. Additionally, section (a)(2)(C) of FOIA, which requires disclosure of only 'administrative' staff manuals, implicitly creates a 'law enforcement exception' that independently justifies withholding the manual.
Concurring - Mikva, Circuit Judge
Yes. The manual should be withheld. This case is factually distinct from Jordan, which involved 'secret law' in the form of prosecutorial guidelines, whereas this case concerns a law enforcement manual for catching criminals. Applying a wooden, literal interpretation of the statute to require disclosure would lead to an absurd result that Congress could not have intended. The court's role is to interpret statutes reasonably and avoid ascribing to Congress an intent to provide criminals with the means to evade detection and arrest.
Concurring - Ginsburg, Circuit Judge
Yes. The court's new two-pronged test is a plausible interpretation of Exemption 2 and justifies withholding the manual. However, the majority's attempt to distinguish the result in Jordan is unpersuasive and 'muddles where it should illuminate.' The prosecutorial guidelines in Jordan also carried a significant risk of law circumvention and were not traditional public-regulating rules. The distinction between 'observing' public behavior (the BATF manual) and 'regulating' it (the Jordan guidelines) is weak and does not provide a secure guide for future cases.
Analysis:
This en banc decision significantly broadens the scope of FOIA Exemption 2 in the influential D.C. Circuit, explicitly overturning the narrow 'house-keeping' interpretation previously established in Jordan v. U.S. Dep't of Justice. By creating a new two-part test focusing on 'predominant internality' and the 'risk of circumvention,' the ruling allows agencies to withhold law enforcement manuals and other sensitive internal documents. This decision aligns the D.C. Circuit's jurisprudence with that of other circuits, creating a more uniform national standard that strengthens the government's ability to protect sensitive law enforcement materials from disclosure under FOIA.
