author: J. SKELLY WRIGHT, Circuit Judge: MacKINNON, Circuit Judge,

text:
    UNITED STATES of America v. Anthony F. WRIGHT, Appellant
    No. 72-1356.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Jan. 11, 1973.
    Decided Oct. 9, 1973.
    Rehearing Denied Dec. 27, 1973.

      Stanley B. Cohen, Washington, D. C. (appointed by this court), for appellant.
    William G. Schaffer, Washington, D. C., for the Public Defender Service.
    Paul L. Friedman, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty., and John A. Terry and Philip L. Cohan, Asst. U. S. Attys., were on the brief, for appellee.
    Before BAZELON, Chief Judge, and WRIGHT and MacKINNON, Circuit Judges.
   J. SKELLY WRIGHT, Circuit Judge:

Appellant’s court-appointed counsel employed an investigator from the Pub-lie Defender Service to interview potential witnesses. The investigator did so and sent to counsel a report consisting of summaries of the interviews. At trial the court ordered the investigator, who had testified as a defense witness, to turn over a copy of the report to the Government. The main question raised on this appeal concerns the propriety of this procedure. We believe the trial court erred in ordering disclosure of the report to the Government, and accordingly we reverse.

I

Following a trial by jury, appellant was found guilty of armed robbery and assault with a dangerous weapon, for which he received concurrent sentences of two to six years and one to three years respectively. The Government’s case consisted of the testimony of the victim, Lonnie Richardson, and two arresting officers. Accepting their testimony, appellant and another man confronted Richardson at a bus stop at about 3:30 one morning in August 1971, trying to sell him a charge-a-plate. Richardson rejected the offer and the two left. Richardson went off to get a cup of coffee to take home, and when he returned to the bus stop the two approached again and appellant asked if he had any money. Richardson testified that appellant threatened him with a soda bottle, saying he would “bust me in my head” if Richardson did not give them anything. Richardson admitted having some change in his change purse, and appellant removed 70 cents from the purse while his accomplice took a dollar from Richardson’s pocket. The two then fled.

Immediately after the robbery, Richardson telephoned the police. When they arrived by car at about 4:00 A.M., Richardson got into the back seat of the car and began to give the officers descriptions of his assailants. While seated there he saw two men about a block away and told the officers they were the men who robbed him. The police drove up alongside the two men and arrested appellant. The accomplice ran away and was not apprehended. Richardson made an on-the-scene identification of appellant as one of the robbers.

In his opening statement defense counsel indicated he would prove Richardson was a homosexual. The trial court interrupted and called counsel to the bench, desiring an explanation of the relevance of Richardson’s alleged homosexuality. Defense counsel said he intended to prove an occasion when Richardson saw appellant talking to a homosexual. Richardson allegedly stared at appellant and appellant did not return the stare. According to defense counsel, the stare indicated a desire on Richardson’s part to make sexual advances toward appellant, and the robbery charge was fabricated because of appellant’s failure to accede to the advances. The court felt the incident was so ambiguous and susceptible to misinterpretation that its proof would amount to an appeal to the jury to disbelieve Richardson simply because he was a homosexual. And it barred further reference to the matter.

Appellant offered two alibi witnesses. William Holloway testified that on the morning in question he was driving with appellant and Teresa Fleming, Holloway’s cousin, near DuPont Circle and Rhode Island Avenue, N.W., far from the scene of the robbery. Defense counsel then called Teresa Fleming, who testified she had known appellant for a long time and was dating him the month the robbery allegedly took place. She was unable, however, to remember anything concerning the morning in question and was dismissed as a witness by the court since she. had no relevant evidence to contribute.

Robert Reeves, an investigator for the Public Defender Service who had investigated the case for defense counsel, was the last defense witness. Reeves first testified about his examination of the lighting conditions at the scene of the crime. He then testified that he interviewed Richardson several months after the offense, recounting what Richardson had told him and relying on his present recollection of the interview without reference to any notes or reports. With only minor exceptions, Richardson’s interview as reported by Reeves was consistent with Richardson’s trial testimony. At the outset of his cross-examination of Reeves, the prosecutor moved for production of Reeves’ investigative report. Over objection, the trial court ordered the report produced and turned over to the prosecutor.

The Government made two uses of the report. In cross-examining Reeves, the Government showed that Reeves had slightly misstated his interview with Richardson, thereby dispelling whatever minor inconsistencies existed between Richardson’s in-eourt testimony and Richardson’s interview as reported by Reeves’ direct testimony. More importantly, as the Government was quick to notice, the investigative report obtained from Reeves included not only a summary of Reeves’ interview with Richardson, but also summaries of his interviews with other potential witnesses, including Miss Fleming, who Holloway testified accompanied Holloway and appellant as they drove around DuPont Circle about the time of the robbery. The investigative report read:

“8. On January 25, 1972, at about 7:30 P.M. this investigator called Miss Teresa Fleming by phone * * * and obtained the following information :
“a. Miss Fleming stated that she does know Anthony Wright, but he is not and never has been her boyfriend.
“b. Miss Fleming stated that she did not pick Anthony Wright up during the month of August or any other time at 2:00 or 3:00 a.m. and ride anywhere with him.
“c. Miss Fleming stated that she has never rode to DuPont Circle or 14th and Rhode Island Avenue, N.W., with Anthony Wright.
“d. Miss Fleming stated that if Anthony Wright said that he rode with her to visit anyone, he is a liar.”

The Government quickly took advantage of this unexpected treasure. Reeves was called as a Government rebuttal witness; he recounted, over objection by defense counsel, that he had interviewed Miss Fleming, that she had denied ever driving around with appellant at 2:00 or 3:00 in the morning any time during August, and that she had said if appellant said otherwise he was a liar.

During its closing argument the Government told the jury it could take into consideration in its deliberations the demeanor of the defendant. The defense immediately objected — the defendant had not taken the stand and his demean- or as a witness was not at issue. The court overruled the objection and the Government proceeded to expand on the point, saying:

“Mr. Anthony Wright has been present throughout this trial, has found a good part of it humorous, other parts he couldn’t stand. And you may definitely consider his demeanor in your deliberations.”

The record does not reflect the precise conduct to which the prosecutor was referring, but it appears appellant’s conduct led to his removal from the courtroom on one occasion after the jury had left, appellant in open court asked to be returned to his cell on another occasion, and appellant shouted something to the court at this time.

Three issues are raised on this appeal: (1) the court’s refusal to allow the defense to present evidence showing that Richardson was a homosexual and had stared at appellant on one occasion; (2) the prosecutor’s closing argument; and (3) the court’s ruling that Reeves turn over his report to the Government.

II

The first two issues need not detain us long. We cannot say it was an abuse of the trial court’s discretion to reject the line of questioning proffered by the defense with respect to homosexuality. As we have noted elsewhere, “Evidence of homosexuality has an enormous proclivity for humiliation and degradation of a participant in a fashion completely unrelated to testimonial honesty.” Tinker v. United States, 135 U.S.App.D.C. 125, 127, 417 F.2d 542, 544, cert. denied, 396 U.S. 864, 90 S.Ct. 141, 24 L.Ed.2d 118 (1969). In ruling on evidentiary matters, the trial judge must balance the probative value of testimony against potential prejudice, and his exercise of discretion will not be disturbed on appeal save for grave abuse. See Hardy v. United States, 118 U.S.App.D.C. 253, 254, 335 F.2d 288, 289 (1964). Bias is unquestionably highly relevant and rejection of a sexual advance may , well give rise to bias, but here the proof of such an advance and its rejection was so ambiguous that the trial court cannot be said to have abused its discretion. Tinker v. United States, supra.

We cannot accept the Government’s contention that there was nothing improper about the prosecutor’s closing argument. A defendant has no right to disregard the dignity, order and decorum of judicial proceedings. Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). But this does not mean that his courtroom behavior off the witness stand is in any sense legally relevant to the question of his guilt or innocence of the crime charged. Unless and until the accused puts his character at issue by giving evidence of his good character or by taking the stand and raising an issue as to his credibility, the prosecutor is forbidden to introduce evidence of the bad character of the accused simply to prove that he is a bad man likely to engage in criminal conduct. See Michelson v. United States, 335 U.S. 469, 475-476, 69 S.Ct. 213, 93 L.Ed. 168 (1948); United States v. Fox, 154 U.S.App.D.C. 1, 4-5, 473 F.2d 131, 134-135 (1972).

This basic principle cannot be circumvented by allowing the prosecutor to comment on the character of the accused as evidenced by his courtroom behavior. That the jury witnesses the courtroom behavior in any event does not make it proper for the prosecutor to tell them, with the court’s approval, that they may consider it as evidence of guilt. What the jury may infer, given no help from the court, is one thing. What it may infer when the court in effect tells it that the courtroom behavior of the accused constitutes evidence against him is something altogether different. Cf. Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). If anything, when requested by the defense the proper course for the trial court where a defendant has engaged in unruly courtroom conduct is to instruct the jury to ignore the defendant’s behavior in its deliberations.

III

Although objection was made at trial, appellant has not specifically-raised on this appeal the propriety of allowing the Government to call the defense investigator as a Government rebuttal witness and to question him about his interview with Miss Fleming. Appellate counsel may well have felt this issue was subsumed within the question, raised on appeal and in the District Court, of the court’s ordering the investigator to give a copy of his report to the prosecutor, as it is evident that the prosecutor never would have known about the interview with Miss Fleming but for seeing the report. We think, however, the issues are analytically separable. Regardless of whether it was proper to order the report turned over to the prosecutor, a question we- defer to Part IV infra, it was error to permit the prosecutor to question the investigator about his interview with Miss Fleming.

Whatever Miss Fleming told Reeves during the interview was hearsay coming from his mouth at trial. It was plainly an out-of-court statement introduced to prove the truth of the matter asserted, namely to refute Holloway’s testimony that he had been driving around with Miss Fleming and appellant the morning of the robbery. Since Miss Fleming had previously been called as a witness for the defense, it might be argued that her prior statement to Reeves was admissible to impeach her in-court testimony. The problem with this approach, however, is that when called as a defense witness Miss Fleming could not remember anything concerning the morning in question. That she had contributed absolutely nothing to the defense case is indicated by the fact that the judge dismissed her as a witness without even giving the prosecution an opportunity to cross-examine her; nor did the prosecution seek such an opportunity.

Moreover, procedures governing introduction and use of prior inconsistent statements were not followed in this ease. Before introducing extrinsic proof of a witness’ prior inconsistent statement, the witness must be asked whether he or she made the statement and must be given an opportunity to explain it. Gordon v. Thomas, 63 App.D.C. 148, 70 F.2d 752 (1934); District of Columbia v. Chessin, 61 App.D.C. 260, 61 F.2d 523 (1932); Washington & O. D. Ry. Co. v. Smith, 53 App.D.C. 184, 289 F. 582 (1923); Gordon v. United States, 53 App.D.C. 154, 289 F. 552 (1923). See also 3A J. Wigmore Evidence § 1019 (Chadbourn rev. 1970); C. McCormick, Evidence § 37 (1954); Rule 613(b), Proposed Federal Rules of Evidence. This procedure was not employed here; the prosecution did not even seek an opportunity to cross-examine Miss Fleming. More importantly, prior inconsistent statements are admissible only for impeachment purposes, not as substantive evidence to prove the truth of the matter asserted, and the jury should be instructed to this effect. See United States v. McClain, 142 U.S.App.D.C. 213, 440 F.2d 241 (1971); Jones v. United States, 128 U.S.App.D.C. 36, 385 F.2d 296 (1967); Cannady v. United States, 122 U.S.App.D.C. 99, 351 F.2d 796 (1965); Byrd v. United States, 119 U.S.App.D.C. 360, 342 F.2d 939 (1965).

In the instant case, however, neither the prosecutor nor the trial court conceived of the investigator’s testimony about his interview with Miss Fleming as impeaching her testimony as a defense witness; rather, they regarded it as substantive evidence that she did not drive around DuPont Circle and Rhode Island Avenue with Holloway and appellant the morning of the robbery. In his closing argument to the jury the prosecutor stated: “Mr. Holloway also told you that Teresa Fleming was with him. She told you she doesn’t remember that at all. She just doesn’t remember that at all. And, moreover, she told Robert Reeves * * * that if Anthony Wright said that, he’s a liar.” And the trial court did not give any instruction to limit the jury’s use of the testimony. Nor can there be any doubt that the error was prejudicial, as it directly contradicted the sole defense raised at the trial.

IV

Ordering a defense investigator to turn over a copy of his investigative report to the Government is such an unprecedented procedure that most of the legal questions it raises are as uncharted as they are fundamental. Among the issues we find lurking in use of the procedure in the instant case are: (1) the Fifth Amendment privilege against self-incrimination; (2) the permissible scope of discovery by the Government under Rule 16(c) of the Federal Rules of Criminal Procedure and application of the exceptions in that rule to discovery during trial; (3) the scope of the attorney-client privilege and its relation to investigators employed by defense counsel; (4) the scope of the “work product” doctrine in criminal procedure and its relation to investigators employed by defense counsel; (5) the relationship between the attorney-client privilege, the. work product doctrine, and the Sixth Amendment’s guarantee of effective assistance of counsel; (6) the extent to which the attorney-client privilege and the protections of the work product doctrine are waived when the defense offers an investigator as a defense witness; (7) reconciliation of defense counsel’s dual role as representative of his client’s interests and officer of the court.

These are weighty issues indeed, and the court is inclined to avoid reaching them as much as possible. We think it best to begin by placing in perspective the trial court’s production order in this case. Once having done so, it appears we can analyze the legality of the court’s order without reaching most of these matters.

The transcript does not reflect any determination on the part of the trial court to break new ground in the law of criminal discovery, as the Government now asks us to do. Rather the production order seems to reflect simply a misapplication, in the hurry of an ongoing trial, of two basic rules of evidence and criminal procedure.

It is a hornbook rule of evidence that, had investigator Reeves used parts of his report to refresh his recollection while on the witness stand, the prosecution would be entitled to examine those parts of the report and would be permitted to make use of those parts of the report in cross-examining Reeves. Jackson v. United States, 5 Cir., 250 F. 2d 897, 900 (1958); United States v. Goldman, 2 Cir., 118 F.2d 310, 314-315, cert. denied, 313 U.S. 588, 61 S.Ct. 1109, 85 L.Ed. 1543 (1941); Capital Traction Co. v. Hoover, 45 App.D.C. 247, 253 (1916); 3 J. Wigmore, Evidence § 752 (Chadbourn rev. 1970). In the present case, however, it is evident Reeves did not use the report to refresh his recollection on the witness stand. Though we need not decide the question, even were we to accept an expansion of that rule to situations where the witness uses the document to refresh his recollection before testifying, compare Rule 612, Proposed Federal Rules of Evidence, with McGill v. United States, 106 U.S. App.D.C. 136, 270 F.2d 329 (1959), we still could not justify the court’s production order. When the prosecution began its cross-examination of Reeves, no attempt was made to ascertain whether Reeves used the report to refresh his recollection prior to taking the stand. Indeed, the prosecution’s first question on cross-examination was: “Could I have a copy of your report, please, Mr. Reeves ?”

The Government now argues that Reeves must have referred to his report to refresh his recollection, but we can find nothing in the record warranting this assumption. Reeves testified he interviewed Richardson on January 19, 1972, and the trial took place on February 10-11, 1972, less than one month later. It is quite plausible that Reeves gave his testimony without refreshing his recollection by reference to his report.

In addition, the rules governing documents used to refresh recollection could in no event justify requiring Reeves to turn over his entire investigative report to the prosecution. As a defense witness Reeves testified only as to two matters — his interview with Richardson on January 19 and his examination of the lighting conditions at the scene of the crime. Assuming they had been used to refresh his recollection at trial, those parts of his investigative report relative to this testimony and of possible use to the Government in cross-examining Reeves with respect to this testimony would have to be turned over to the prosecution. But there was nothing in the investigative report on Reeves’ examination of the lighting conditions. And the report contained much information totally irrelevant to the January 19 interview with Richardson, including summaries of interviews with police officers, another interview with Richardson, and the interview with Miss Fleming. Even if Reeves used the report to refresh his recollection, only those parts of the report relating to his testimony on direct need have been turned over to the Government. See 3 J. Wigmore, supra, § 762 at 140; cf. Mosson v. Liberty Fast Freight Co., 2 Cir., 124 F.2d 448 (1942).

The second explanation for the trial court’s production order is as a misapplication of the Jencks Act, 18 U. S.C. § 3500 (1970). That Act, the details of which are not here relevant, requires the Government to turn over to the defense prior statements of Government witnesses. By its express terms the Act has no application whatever to defense witnesses and statements in the possession of the defense. To the extent the trial court thought it was applying the Jencks Act, it was simply wrong in saying it made no difference whether Reeves was a defense or a Government witness.

Confronted with what appears to be no more than plain error in applying rules of evidence and criminal procedure, the Government now asks us to broaden these rules to encompass the court’s production order. Simply stated, the Government proposes that this court adopt a common law rule of evidence and discovery which requires the defense, after its witness has testified on direct examination, to turn over to the prosecution prior statements of that witness in its possession so that those statements could be used by the Government to cross-examine the witness. In effect this rule would make the Jeneks Act applicable in principle if not in express terms to the defense as well as to the prosecution.

Applying this rule to the present case, the defense would be required to turn over that part of Reeves’ investigative report relating to Reeves’ direct testimony — that is, those parts of the report summarizing Reeves’ interview with Richardson. Since Miss Fleming also testified as a defense witness, the Government contends the defense was required to turn over all of her prior statements in its possession, including Reeves’ summary of his interview with her.

Rather than focus on the issues delineated at the beginning of this section, we think the real question before us is whether we should develop a common law rule of evidence and criminal procedure which applies the Jeneks Act to defense witnesses and their prior statements in the possession of the defense.

The Government couches its proposal in appealing language. We are reminded that “the judicial process is a search for truth, not an adversary game,” United States v. Perry, 153 U.S.App.D. C. 89, 92, 471 F.2d 1057, 1063 (1972) (emphasis in original), and that “due process fairness and the interest of truth necessitate adjustment from the one-time conception of a criminal trial as a sporting contest between the two sides.” United States v. Reese, 149 U.S.App.D.C. 427, 430, 463 F.2d 830, 833 (1972). With these truisms we cannot quarrel, but we nevertheless are compelled to reject the Governnent’s invitation to take another small step forward on what Mr. Justice Holmes called “The Path of the Law.

The proposed rule, whether viewed as a rule of discovery at trial or as a rule of evidence, involves a significant change in traditional trial procedures. We have been cited to only a few state jurisdictions where similar rules have been adopted. In addition, the Government’s proposal touches upon matters which have been considered and treated in detail by statute and by rule.

The Government’s proposal would, in effect, have us modify the language of the Jeneks Act so it would apply to defense as well as Government witnesses, achieving a result which even the Government admits was not within the contemplation of Congress. The rule-makers have dealt with this problem also, through promulgation of the Federal Rules of Criminal Procedure, particularly Rule 16(c). The Government concedes that Rule 16(c) is the only rule expressly dealing with a right of discovery on behalf of the Government. By its terms it applies only where the defense has taken advantage of reciprocal rights of discovery. Moreover, the rule entitles the Government to discover only documents “which the defendant intends to produce at trial * * * .” Finally, the rule states:

“Except as to scientific or medical reports, this subdivision does not authorize the discovery or inspection of reports, memoranda, or other internal defense documents made by the defendant, or his attorneys or agents in connection with the investigation or defense of the case, or of statements made by the defendant, or by government or defense witnesses, or by prospective government or defense witnesses, to the defendant, his agents or attorneys.”

The intent of the rule-makers was to immunize from discovery the material which would be subject to in-court discovery under the Government’s proposal, since it expressly exempts “statements made by * * * defense witnesses, to the defendant [’s] agents * * * .”

The rule-makers have also examined the matter covered by the Government's proposal very recently in Rule 612 of the Proposed Federal Rules of Evidence which provides:

“Except as otherwise provided in criminal proceedings by 18 USC § 3500 [the Jencks Act], if a witness uses a writing to refresh his memory for the purpose of testifying, either before or while testifying, an adverse party is entitled to have it produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. * * * ”

The Advisory Committee’s Note emphasizes the obvious:

“ * * * The [Jencks Act] applies only to government witnesses; the rule applies to all witnesses. The statute contains no requirement that the statement be consulted for purposes of refreshment before or while testifying; the rule so requires. * * * »

The Government’s proposal would have us modify this rule of evidence, now being considered in Congress, by doing away with the requirement that the statement be used to refresh recollection either before or while testifying.

In many areas of criminal procedure the courts bear a special responsibility for developing the common law to satisfy maturing notions of fairness and justice. Some of these areas — for example, definition of standards relating to insanity and criminal responsibility —are the courts’ domain because the legislatures and the rule-makers have not yet seen fit to intrude on an historical process of common law development. In other areas — for example, protection of the constitutional rights of the accused —the courts bear a special responsibility under our constitutional system since they, rather than the Congress or the rule-makers, remain the final arbiters of what the Constitution demands.

The present case, in contrast, is quite different. With respect to issues touched on by the Government’s proposal, primary responsibility for development of the law has been assumed by Congress and the rule-makers. No doubt, there always remains room for case-by-case development of the law — to fill gaps in a statute or rule, to solve problems not considered by the draftsmen, or to interpret text in a manner which achieves substantial justice. The Government’s proposal in this case, however, works a major change in procedure. Depending on one’s perspective, it would expand or narrow the specific rights and privileges granted by statute and by rule, and would be in conflict with the plain language of these provisions. Cf. Palermo v. United States, 360 U.S. 343, 79 S.Ct. 1217, 3 L.Ed.2d 1287 (1959).

Equally if not more important, we cannot fail to recognize the weighty constitutional interests that could be affected by creating a right of discovery of prior statements of defense witnesses. In many instances the Government’s rule would require the defense to turn over to the prosecution evidence incriminating the defendant. In this very case, for example, the rule is used to justify requiring the defense to turn over to the prosecution the prior statement of Miss Fleming which unquestionably tended to incriminate the defendant.

In other respects the rule would entail excessive judicial intrusion into the files of the defense. For example, Jencks Act procedures require in camera inspection by the court to separate the parts of the prior statement relating to the witness’ in-eourt testimony from the parts not so relating. Only matters relating to the in-court testimony must be turned over to the opposing side. See note 8 supra. Application of this procedure to statements in the possession of the defense would in some instances require the defense to open up its files to perusal by the trial court.

In both these respects the procedure suggested by the Government raises, in our view, substantial questions as to its validity under the Fifth Amendment. The due process clause of the Constitution imposes an affirmative duty on the Government to reveal evidence helpful to the defense. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The Jencks Act is only one aspect of this duty. See Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103 (1957). The defense, however, has no reciprocal duty. “Although the Government is bound to disclose all exculpatory evidence within its control, defense counsel is under no obligation to reveal evidence which would aid the prosecution.” Levin v. Katzenbach, 124 U.S.App.D.C. 158, 166, 363 F.2d 287, 295 (1966) (Burger, J., dissenting). Quite the contrary, the Fifth Amendment provides that the defense cannot be required to turn over evidence favorable to the prosecution. In criminal cases, then, discovery must inevitably remain basically a one-way street.

This principle is firmly imbedded in our common law tradition. As Lord Mansfield once observed, “[I]n civil causes, the Court will force parties to produce evidence which may prove against themselves; or leave the refusal to do it (after proper notice) as a strong presumption, to the jury. * * * But in a criminal or penal cause, the defendant is never forced to produce any evidence; though he should hold it in his hands, in Court.” Roe dem. Haldane v. Harvey, 4 Burr. 2489, 98 Eng.Rep. 302, 305 (K.B. 1769). Production of documents in response to a motion to order production may be refused under the protection of the privilege. In Wigmore’s words, “This is universally conceded.” 8 J. Wigmore, Evidence § 2264 at 379 (McNaughton rev. 1961). The Supreme Court of the United States long ago recognized the point:

<<* * ■>:- ^nd any compulsory discovery by extorting the party’s oath, or compelling the production of his private books and papers, to convict him of crime, or to forfeit his property, is contrary to the principles of a free government. It is abhorrent to the instincts of an Englishman; it is abhorrent to the instincts of an American. It may suit the purposes of despotic power; but it cannot abide the pure atmosphere of political liberty and personal freedom.”

Boyd v. United States, 116 U.S. 616, 631-632, 6 S.Ct. 524, 533, 29 L.Ed. 746 (1886).

There has been some attempt in recent years to increase the Government’s right to discovery in criminal cases — for example, through statutes requiring the defense to give pretrial notice of the names of witnesses to be called as part of an alibi defense. But as the Supreme Court has emphasized in holding such statutes constitutional under the Fifth Amendment, they only require the defense to turn over to the Government information which the defense intends to reveal at trial. See Williams v. Florida, 399 U.S. 78, 85, 90 S.Ct. 1893, 26 L.Ed. 2d 446 (1970). Alibi statutes, the Court reasoned, affect only the timing of disclosure, and the defendant has no Fifth Amendment privilege to mount an eleventh hour defense. Id. at 82, 90 S. Ct. 1893. The Government’s proposal in the instant case is entirely different. It would require the defense to turn over information which the defense never intended to use at trial.

The Government’s proposal does not further any legitimate governmental interest in avoiding surprise at trial. Compare Wardius v. Oregon, 412 U.S. 470, 93 S.Ct. 2208, 37 L.Ed.2d 82 (1973). Under Williams and pursuant to Rule 87 of the District Court Rules, the Government could have compelled pretrial disclosure of the names of alibi witnesses, including Miss Fleming, in advance of trial. The Government could then have interviewed those witnesses in an effort to obtain impeachment or rebuttal evidence. But the Government did not avail itself of this procedure. Instead it seeks a rule which does not help it avoid surprise, but, rather, helps it make its case against the áccused.

The defendant has a right under the Fifth Amendment to compel the state to investigate its own ease, find its own evidence, and prove its own facts. The defense has no duty to help the prosecution convict the defendant. We therefore reject any rule which would require the defense to turn over to the prosecution prior statements of defense witnesses which could be used by the prosecution as evidence against the accused.

Reversed.

MacKINNON, Circuit Judge,

dissenting:

I see no privilege in the report of an investigator for the defense to the extent that it contains statements of witnesses (not the defendant). I accordingly believe that the court properly ordered it to be produced. Investigative reports of the Government are required to be turned over to the defense when they contain facts contrary to those testified in court and I would apply the same standard to investigators for the defense. Since I find no error in the trial I would accordingly affirm the judgment of conviction.

      . As part of the Government’s ease-in-chief Richardson testified that he had seen appellant in the store at which Richardson worked on one previous occasion. According to Reeves, however, Richardson stated in the interview that he had worked in the store for about five years, that appellant had been a customer in the store for a period of about two years, and that Richardson had «seen appellant in the store several times.

      . On cross-examination it appeared that Reeves’ report said that Richardson had told Reeves: “I was able to identify him because I know him when I see him. He has been a customer at the store where I work for several years. I know him by sight and by seeing him in the neighborhood over a period of several years.” Thus, while Richardson had told Reeves that he had worked in the store for several years, he never specifically stated that he had seen appellant on several occasions in the store, but rather only that appellant “has been a customer at the store * * Hs

      . “Our decisions reflect great solicitude for an endeavor by the accused to establish bias on the part of a prosecution witness. They establish the propriety of the showing either by cross-examination or by extrinsic evidence, and indicate the broad range over which the inquiry may extend, * * * ”
      Austin v. United States, 135 U.S.App.D.C. 240, 243, 418 F.2d 456, 459 (1969). (Footnotes omitted.)

      . “(b) Extrinsic Evidence of Prior Inconsistent Statement hy Witness. — Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate him thereon, or the interests of justice otherwise require. * * * ”

      . Rule 801(d)(1) of the Proposed Federal Rules of Evidence would amend this common law limitation by providing that prior inconsistent statements of a declarant who testified at trial and is subject to cross-examination are not hearsay. Until such time as the Proposed Rules become effective, see note 13 infra, the common law rule will be followed in this jurisdiction.

      . Adequate factual investigation is clearly a component of effective assistance of counsel, see, e. g., Shepherd v. Hunter, 10 Cir., 163 F.2d 872 (1967); People v. Bennett, 29 N. Y.2d 462, 329 N.Y.S.2d 801, 280 N.E.2d 637 (1972); American Bar Association Project on Standards for Criminal Justice, Standards Relating to the Defense Function § 4.1 (Approved Draft 1971), but providing such investigative assistance for the indigent defendant has proved difficult. See, e. g., Reilly v. Berry, 250 N.Y. 456, 461, 166 N.E. 165, 167 (1929); Note, The Indigent’s Right to an Adequate Defense: Expert and Investigational Resources in Criminal Proceedings, 55 Corn.L.Rev. 632 (1970); Note, Right to Aid in Addition to Counsel for Indigent Defendants, 47 Minn.L.Rev. 1054 (1963). The District of Columbia Bar is fortunate in that the local Public Defender Service provides professional investigative and support services to court-appointed attorneys, and the operation of that Service would obviously be affected by the Government’s proposal in this 'case.

      . See also Rule 612, Proposed Federal Rules of Evidence:
      “ * * * If it is claimed that the writing contains matters not related to the subject matter of the testimony, the judge shall examine the writing in camera, excise any portions not so related, and order delivery of the remainder to the party entitled thereto. Any portion withheld over objections shall be preserved and made available to the appellate court in the event of an appeal. * * * ”

      . Under the Jeneks Act, after a witness called by the United States has testified on direct examination the court must order the Government to produce any statement of the witness in its possession “which relates to the subject matter as to which the witness has testified.” 18 U.S.C. § 3500(b) (1970). If the Government claims the statement contains matter not relating to the subject matter of the testimony of the witness, the court must hold an in camera inspection to excise portions of the statement not so relating. 18 U.S.C. § 3500(c).

      . The Government also argues that defense counsel had an ethical obligation as an officer of the court either to disclose the summary of the interview with Miss Fleming or to refrain from calling her as a defense witness, citing ABA Project, op. cit. supra note 6, at § 7.5(a). That section provides: “It is unprofessional conduct for a lawyer knowingly to offer false evidence, whether by documents, tangible evidence, or the testimony of witnesses.” Even assuming Miss Fleming’s in-court testimony was inconsistent with her interview with the defense investigator, defense counsel may well have believed Miss Fleming was telling the truth on the stand and had lied to the investigator. Section 7.5(a) merely prohibits knowingly using false evidence or presenting a witness knowing that he intends to perjure himself. See id., Commentary a, at 268. We reject the Government’s contention that the record in this case indicates unprofessional conduct on the part of defense counsel.

      . Holmes, The Path of the Law, 10 Harv.L.Rev. 457 (1897).

      . State v. Montague, 55 N.J. 387, 262 A.2d 398 (1970); People v. Damon, 24 N.Y.2d 256, 299 N.Y.S.2d 830, 247 N.E.2d 651 (1969); People v. Sanders, 110 Ill.App.2d 85, 249 N.E.2d 124 (1969).

      . This limitation is central to the argument supporting the constitutionality of the rule. See I C. Wright, Federal Practice and Procedure § 255 at 520 (1969). Cf. Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970). See also Prudhomme v. Superior Court of Los Angeles County, 2 Cal.3d 320, 85 Cal.Rptr. 129, 134, 466 P.2d 673, 678 (1970):
      “ * * * A reasonable demand for factual information which * * * pertains to a particular defense or defenses and seeks only that information which defendant intends to introduce at trial, may present no substantial hazards of self-incrimination and therefore justify the trial judge in determining that under the facts and circumstances in the case before him it clearly appears that disclosure cannot possibly tend to incriminate defendant. However, unless those criteria are met, discovery should be refused.”
      (Footnotes omitted.)

      . The rules will not go into effect unless and until they are expressly approved by Congress. Pub.Law No. 93-12, 87 Stat. 9 (1973).

      . Indeed, the only exception developed to date seems to be for pretrial disclosure to the Government of information the defendant intends to reveal at trial, as in Rule 16(c), and in notice of alibi statutes approved in Williams v. Florida, supra note 12, but there is serious question even as to the permissible breadth of this exception under the Fifth Amendment. Compare Jones v. Superior Court of Nevada County, 58 Cal.2d 56, 22 Cal.Rptr. 879, 372 P.2d 919 (1962), with Prudhomme v. Superior Court of Los Angeles County, supra note 12.

      . The Government argues that the Boyd principle is limited to situations where the defendant is asked to produce his own prior incriminating statements, not the incriminating statements of others in his possession. It argues that the Fifth Amendment applies only where the incriminating product of compulsion is the defendant’s testimony or “evidence relating to some communicative act or writing” by the defendant. See Schmerber v. California, 384 U.S. 757, 765, 86 S.Ct. 1826, 1833, 16 L.Ed.2d 908 (1966). This argument has evidently been accepted by those state courts which require the defense to produce prior statements of defense witnesses. See, e. g., People v. Damon, supra note 11, 24 N.Y.2d at 261, 299 N.Y.S.2d at 834, 247 N.E.2d at 654: “These statements were not those of the defendant but of witnesses offered by the defendant. In no sense can it be said that he is being compelled to produce incriminating statements of his own.”
      This line of analysis, however, is plainly inconsistent with the rationale of the privilege. Dean Wigmore, no friend of the privilege, also concedes that the privilege applies only to "testimonial compulsion,” 8 J. Wigmore, Evidence § 2263 at 379 (McNaughton rev. 1961) (emphasis in original). But as lie says:
      “:¡: * * jt follows that the production of documents or chattels by a person (whether ordinary witness or party witness) in response to a subpoena, or to a motion to order production, or to other form of process relying on his moral responsibility for truthtelling, may be refused under the protection of the privilege. This is universally conceded. For though the documents or chattels thus sought be not oral in form, and though they be already in existence and not desired to be first written and created by a testimonial act or utterance of the person in response to the process, still there is a testimonial disclosure implicit in their production. It is the witness’ assurance, compelled as an incident of the process, that the articles produced are the ones demanded. No meaningful distinction can be drawn between a communication necessarily implied by legally compelled conduct and one authenticating the articles expressly made under compulsion in court. * * * ”

        Id., § 2264 at 379-380 (footnote omitted ; emphasis in original).
      One of the basic rationales of the privilege is “our unwillingness to subject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt * * *.” Murphy v. Waterfront Comm’n of New York Harbor, 378 U.S. 52, 55, 84 S.Ct. 1594, 1596, 12 L.Ed.2d 678 (1964). See also Couch v. United States, 409 U.S. 322, 328, 93 S.Ct. 611, 34 L.Ed.2d 548 (1973). Where the Government compels a defendant in a criminal case to produce a particular incriminating document, whether or not the document contains the defendant’s own prior statements, the defendant faces this trilemma. He can produce the sought after document, thereby implicitly stating that the document produced is the one requested, and provide evidence against himself. He can perjure himself in two ways: he can refuse production on the ground that he does not have the requested item, or he can produce something other than the document requested— for example, a forged nonincriminating version of the document. Or lie can simply refuse production and subject himself to a contempt sanction. Compelled production of a document in the possession of the defendant, whether or not it is a document written by the defendant, thus involves a “communicative act” by the defendant within the protection of the privilege. “[I]t is possession of papers sought by the government, not ownership, which sets the stage for exercise of the governmental compulsion which it is the purpose of the privilege to prohibit.” Couch v. United States, supra, 409 U.S. at 330 n. 12, 93 S.Ct. at 617, quoting United States v. Cohen, 9 Cir., 388 F.2d 464, 468 (1967). See also United States v. White, 322 U.S. 694, 699, 64 S.Ct. 1248, 88 L.Ed. 1542 (1944); In re Grant, S.D.N.Y., 198 F.708, 709 (1912) (Hand, J.), affirmed, 227 U.S. 74, 33 S.Ct. 190, 57 L.Ed. 423 (1913) :
      “ * s * For instance, suppose that A., knowing that B. has papers which would incriminate him, gets wrongful possession of them from B., whom they do not incriminate. If B. is content, and leaves A. in possession, I do not under- . stand that it would be any answer whatever to A. to say: ‘You cannot keep these back, because you came by them wrongfully, or at least you have no right to them now.’ All the law considers is whether A. has got possession in fact, and whether the documents actually will tend to incriminate him. To get them in evidence the law would have to force him to bring them out of a possession which is good enough against any one but B. Certainly, I can find nothing in the books which suggests such a distinction, and it contradicts the whole history of the matter. For the privilege runs along side by side with the power to compel production, and that power depends only upon serving the actual possessor. * * * ”

        Schmerber, which involved compelled withdrawal of a blood sample from the defendant, is fully consistent with this approach. In permitting his blood to be removed, an individual makes no implicit statement comparable to that implicit in producing a requested document. The defendant need not choose between incrimination and perjury, since no opportunity for perjury is intrinsic to the procedure. As the Court noted in Schmerber, “Petitioner’s testimonial capacities were in no way implicated; indeed, his participation, except as a donor, was irrelevant to the results of the test, which depend on chemical analysis and on that alone.” 384 U.S. at 765, 86 S.Ct. at 1832.

      . See Note, The Supreme Court 1969 Term, 84 Harv.L.Rev. 1, 171 (1970). In this respect alibi statutes are similar to the kind of discovery permitted by the Government under Rule 16(c). See text at pp. 1190-1191 supra. Even the proposed amendments to Rule 16(c), which broaden prosecutorial discovery in several respects, would continue to limit discovery to documents “which the defendant intends to introduce in evidence at the trial” or the names and addresses of the witnesses “he intends to call at the trial.” See Preliminary Draft of Proposed Amendments to the Federal Rules of Criminal Procedure for the United States District Courts, 48 F.R.D. 553, 591-592 (Rules 16(b) (1) (i) & (iii)) (1970).

      . DEFENSE OF ALIBI (A) DEMAND BY PROSECUTOR:
      NOTICE BY DEFENDANT. When a defendant in a criminal case proposes to offer the defense of alibi, he shall, unless the judge at pretrial directs otherwise, upon written demand of the prosecutor stating the time, date and place at which the alleged offense was committed, serve upon the prosecutor within 20 days a written notice of his intention, and shall state therein the specific place or places at which the defendant claims to have been at the time of the alleged offense and the names and addresses of the witnesses upon whom he intends to rely to establish such alibi.
      (B) NOTICE BY PROSECUTOR. Within ten (10) days thereafter, prosecutor shall serve upon the defendant or his attorney a written notice stating the names and addresses of the witnesses upon whom the Government intends to rely to establish the defendant’s presence at the scene of the alleged offense.
      (C) FAILURE TO COMPLY: RIGHT OF DEFENDANT TO TESTIFY. Upon the failure of either party to comply with the respective requirements of this rule, the Court shall, except for good cause shown, exclude the testimony of any witness offered by such party as to the defendant’s absence from, or presence at, the scene of the alleged offense. This rule shall not limit the right of the defendant to testify in his own behalf,


source: Caselaw Access Project

author: DANAHER, Senior Circuit Judge: BAZELON, Chief Judge,

license: Public Domain

text:
    Harold WEISBERG, Appellant, v. U. S. DEPARTMENT OF JUSTICE.
    No. 71-1026.
    United States Court of Appeals, District of Columbia Circuit.
    On Rehearing En Banc.
    Decided Oct. 24, 1973.

      Bernard Fensterwald, Jr., Washington, D. C., with whom James H. Lesar, Washington, D. C., was on the brief, for appellant.
    Walter H. Fleischer, Atty., Dept, of Justice, with whom Asst. Atty. Gen. L. Patrick Gray, III, at the time the brief was filed, Thomas A. Flannery, U. S. Atty., at the time the brief was filed, Harold H. Titus, Jr., U. S. Atty., and Barbara L. Herwig, Atty., Dept, of Justice, were on the brief, for appellee. Alan S. Rosenthal, Atty., Dept, of Justice, also entered an appearance for ap-pellee.
    Before: BAZELON, Chief Judge, DANAHER, Senior Circuit Judge, WRIGHT, McGOWAN, TAMM, LEV-ENTHAL, ROBINSON, MacKINNON, ROBB and WILKEY, Circuit Judges, sitting en banc.
   ON REHEARING EN BANC

DANAHER, Senior Circuit Judge:

Relying upon 5 U.S.C. § 552(a)(3) of the Freedom of Information Act, appellant in the district court sought to compel disclosure of certain materials compiled by the Federal Bureau of Investigation following the assassination of the late President Kennedy. Appellant argued that he is a professional writer who has published four books treating of the Kennedy assassination. The Department of Justice moved that the complaint be dismissed or, alternatively, for summary judgment, predicating its position upon Section 552(b)(7) of the Act which, as here pertinent, provides:

(b) This section shall not apply to matters that are

* -* * * * *

(7) investigatory files compiled for law enforcement purposes ....

The district court without opinion granted the Department’s motion to dismiss. We are satisfied that the record before us clearly demonstrates the desired materials were part of the investigatory files compiled by the FBI for law enforcement purposes, and, as such, are exempt from the disclosure sought to be compelled. Accordingly, we affirm.

I.

President ' Kennedy was pronounced dead at 1:00 p. m. on Friday, November 22, 1963. That day, at 2:38 p. m., Lyndon B. Johnson was sworn in as the thirty-sixth President of the United States and immediately by plane left Texas for Washington.

Director Hoover testified before the Warren Commission that

When President Johnson returned to Washington he communicated with me within the first 24 hours and asked - the Bureau to pick up the investigation of the assassination because as you are aware, there is no federal jurisdiction for such an investigation. It is not a Federal crime to kill or attack the President or Vice President or any of the continuity of officers who would succeed to the presidency.

Appellant has argued on brief that the FBI materials could not have been compiled for law enforcement purposes since, in 1963 the State of Texas but not United States “had jurisdiction over the crime.” He thus contended that he was “entitled to the sought material as a matter of law and not as a matter of grace.”

Clearly, in the day and time of it all, the President contemplated collaboration with Texas authorities by agents of the Secret Service and of the Federal Bureau of Investigation looking to the early apprehension and ultimately the conviction of whoever murdered President Kennedy. It was speedily developed that the rifle from which the assassin’s bullets had been fired had been shipped to one Lee Harvey Oswald. The latter was placed under arrest and charged with the perpetration of the crime. Two days later, as an investigation of massive proportions got under way, Oswald, then in the custody of Dallas Police, was fatally shot by one Jack Ruby.

Director Hoover further testified before the Warren Commission thus:

However, the President has a right to request the Bureau to make special investigations, and in this instance he asked that this investigation be made. I immediately assigned a special force headed by the special agent in charge at Dallas, Texas, to initiate the investigation, and to get all details and facts concerning it, which we obtained, and then prepared a report which we submitted to the Attorney General for transmission to the President. [Hearings before the Warren Commission, Vol. 5, p. 98.]

To glean some understanding of the magnitude of the investigatory organization which was speedily activated, we may turn to the Foreword of the Warren Commission Report, xii, from which we quote:

The scope and detail of the investigative effort by the Federal and State agencies are suggested in part by statistics from the Federal Bureau of Investigation and the Secret Service. Immediately after the assassination more than 80 additional FBI personnel were transferred to the Dallas office on a temporary basis to assist in the investigation. Beginning November 22, 1963, the Federal Bureau of Investigation conducted approximately 25,000 interviews and reinterviews of persons having information of possible relevance to the investigation and by September 11, 1964, submitted over 2,300 reports totaling approximately 25,400 pages to the Commission. During the same period the Secret Service conducted approximately 1,550 interviews and submitted 800 reports totaling some 4,600 pages.

We deem it demonstrated beyond peradventure that the Department’s files: (1) were investigatory in nature; and (2) were compiled for law enforcement purposes. When that much shall have been established, as is so clearly the situation on this record, and the district judge shall so determine, such files are exempt from compelled disclosure.

II.

While the statute speaks for itself in the respect under consideration, we may note that the legislative history additionally explains:

It is also necessary for the very operation of our Government to allow it to keep confidential certain material, such as the investigatory files of the Federal Bureau of Investigation.

In slightly different context to be sure, Judge Hays analyzed the Congressional purpose thus:

If an agency’s investigatory files were obtainable without limitation after the investigation was concluded, future law enforcement efforts by the agency could be seriously hindered. The agency’s investigatory techniques and procedures would he revealed. The names of people who volunteered the information that had prompted the investigation initially or who contributed information during the course of the investigation would be disclosed. The possibility of sugh disclosure would tend severely to limit the agencies’ possibilities for investigation and enforcement of the law since these agencies rely, to a large extent, on voluntary cooperation and on information from informants. (Emphasis added).

There can be no question that 5 U.S.C. § 552 had as its principal purpose that there was to be disclosure to the public of the manner in which the Government conducts its business. Congress additionally was concerned with the dilemma in which the public finds itself when forced to “litigate with agencies on the basis of secret laws or incomplete information.” We have repeatedly made evident our appreciation of the principle that generally disclosure, and not withholding, of information is called for, especially where there is an adversarial posture presented as in Bristol-Myers Co. v. FTC, 138 U.S.App.D.C. 22, 25, 424 F.2d 935, 938, cert. denied, 400 U.S. 824, 91 S.Ct. 46, 27 L.Ed.2d 52 (1970). But the remedy appropriately provided in § 552(a)(3) is not available in every situation, and as we have previously noted, § 552(b) is explicit that § 552 does not apply to matters that are specifically exempted.

We are not here speaking of trade secrets, or personnel and medical files, or patent information or internal revenue returns, or yet other material which, by statute (see, e. g., 41 CFR § 105-60.604, 1972), had been specifically exempted from disclosure. We are not treating of geological information or matter required by Executive order to be kept secret. We are not discussing any problem except that of compelled disclosure of Federal Bureau of Investigation investigatory files compiled for law en-foreement purposes. Certainly the answer does not depend upon what this appellant desires to accomplish if access be afforded. The Court has told us that the Act does not “by its terms, permit inquiry into particularized needs of the individual seeking the information.” EPA v. Mink, 410 Ú.S. at 86, 93 S.Ct. at 835. Against the background we have hereinbefore set out, we may appropriately turn, particularly as 'a frame of reference, to the correspondence between the appellant and the Department prior to the institution of this action.

This appellant, in his letter of May 16, 1970 attached as an exhibit to his complaint, submitted to-the Department of Justice the following:

With regard to the spectrographie analysis, if you are not aware of it, not then having been in your present position, 1’ think you should know that if it does not agree in the most minute detail with the interpretation put upon it by the Warren Commission, their Report is a fiction.

Appellant then transmitted the Department’s form entitled “Request For Access To Official Record Under 5 U.S. C. 552(a) and 28 CFR Part 16,” describing the material set forth in our footnote 3, swpra. A further exhibit attached to the appellant’s complaint discloses that the Department under date of June 12, 1970, wrote:

Spectrographie Analyses: You have asked for access to the spectrographie analyses conducted on certain bullet evidence involved in the assassination.

I regret that I am unable to grant your request in that the work notes and raw analytical data on which the results of the spectrographie tests are based are part of the investigative files of the FBI and are specifically exempted from public disclosure as investigatory files compiled for law enforcement purposes. 5 U.S.C. 552(b) (7). The results of the spectrographic tests are adequately shown in the report of the Warren Commission where (Volume 5, pages 67, 69, 73 and 74) it is specifically set forth that the metal fragments were analyzed spec-trographically and found to be similar in composition.

Our problem thus stems from what follows under the Freedom of Information Act after the Attorney General’s exercise of the decisional process devolving upon him.

III.

The Department of Justice, headed by the Attorney General, 28 U.S.C. § 503, includes the Federal Bureau of Investigation, 28 U.S.C. § 531. The Attorney General is directly charged under 28 U. S.C. § 534 with the duty to acquire, collect, classify and preserve identification, criminal identification, crime and other records, and to exchange such records with and for the official use of authorized officials, not only of the federal government, but of the States and cities. So it was that the Bureau collaborated with the Dallas police.

Further appreciation of the daily activity of the Bureau may be seen in its annual report for 1972. The FBI had developed more than 345,000 items of criminal intelligence which had been disseminated to other Federal, state and local agencies engaged in law enforcement. More than 495,000 examinations of evidence had been conducted by the FBI laboratory to be submitted to law enforcement agencies. Organized crime investigations had ranged throughout the nation. Discretion respecting disclosure of the records in such matters devolved upon the Attorney General by virtue of 28 U.S.C. § 534. Moreover, under subsection (b) thereof, the exchange of records so gathered may be “subject to cancellation if dissemination is made outside the receiving departments or related agencies,” Congress provided. It may to some appear unthinkable that the criminal investigatory files of the Bureau of Investigation, compiled for law enforcement purposes, are to be thrown open to some “person” as defined in 5 U.S.C. § 551(2) who asserts entitlement in reliance upon § 552(a)(3). Yet our appellant claims his “right” as a matter of law since in November, 1963, it was not a federal crime to kill a President. We need only surmise the consequences to law enforcement if any “person,” knowing full well that an investigation has been conducted, can ask some federal court to compel disclosure of the Bureau’s files.

Obviously, the statutory scheme of organization, as above referred to, calls for the exercise of discretion by the Attorney General respecting execution of the duties devolving upon him, and through him, upon the Federal Bureau of Investigation. We have no doubt whatever that Congress was fully alive to the problem where investigatory files of the FBI were involved.

Congress knows full well that in the first instance an Attorney General in myriad situations must exercise the discretion conferred upon him by law. He must evaluate the evidence necessary to an informed judgment. He must decide whether to prosecute or not. He must decide whom to prosecute. He must decide when to prosecute. Functions in this area belong to the Executive under the Constitution, Article II, Sections 1 and 3, and, as here, specifically to the Attorney General under 28 U. S.C. § 509. Consider problems such as we find were assessed in Pugach v. Klein, 193 F.Supp. 630, 634-635 (S.D. N.Y.1961), and Moses v. Kennedy, 219 F.Supp. 762, 765 (1963), aff’d sub nom., Moses v. Katzenbach, 119 U.S.App.D.C. 352, 342 F.2d 931 (1965). As Judge Wright there said

.• . an investigation as to the adequacy or the execution of these laws is not a matter within the jurisdiction of the judicial branch of this Government.

And see Newman v. United States, 127 U.S.App.D.C. 263, 265, 382 F.2d 479, 481 (opinion by present Chief Justice Burger, 1967). The Attorney General’s prosecutorial discretion is broad, indeed, and ordinarily at least, is not subject to judicial review. Inmates of Attica Correctional Facility v. Rockefeller, 477 F.2d 375, 380 (2 Cir. 1973); Powell v. Katzenbach, 123 U.S.App.D.C. 250, 359 F.2d 234 (D.C.Cir. 1965), cert. denied, 384 U.S. 906, 86 S.Ct. 1341, 16 L.Ed.2d 349, (1966); Touhy v. Ragen, 340 U.S. 462, 467-469, 71 S.Ct. 416, 95 L.Ed. 417 (1951); cf. Adams v. Richardson, 156 U.S.App.D.C. 267, 480 F.2d 1159 (en banc, June 12, 1973); but we suggested that immunity respecting the exercise of discretion may well be unavailable were the Department to be under investigation by a court or grand jury when fraud or corruption might be involved, Committee for Nuclear Responsibility, Inc. v. Seaborg, 149 U.S.App.D.C. 385, 391, 463 F.2d 788, 794 (1971). But this much is certain, (5 U.S.C. § 301 as part of Pub.L. 89-554, 80 Stat. 379), the Attorney General, like the heads of other Executive departments,, was authorized to refuse disclosure under Exemption 7 if he could determine as here that the issue involved investigatory files compiled for law enforcement purposes.

IV.

Congress surely realized that disclosure was not to be required in certain prescribed classifications. For example, section 552(b) provided that the section as a whole was not to apply to matters that are (3) “specifically exempted from disclosure by statute.” See, as illustrative, the statutes identified in 41 CFR § 105-60.604 (1972).

Again, section 552(b)(1) exempted from disclosure matters “specifically required by Executive order to be kept secret in the interest of the national defense or foreign policy.” That very language gave rise to an issue which this court first considered, followed by the Supreme Court’s definitive pronouncements as to the steps to be taken respecting disclosure of materials coming within section 552(b)(5). Ruling that we misapplied that section, the Court reversed, EPA v. Mink, 410 U.S. 73, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973), observing at 82, 93 S.Ct. at 833 after a review of the legislative history,

Rather than some vague standard, the test was to be simply whether the President has determined by executive, order that particular documents are to be kept secret. The language of the Act itself is sufficiently clear in this respect, but the legislative history disposes of any possible argument that Congress intended the Freedom of Information Act to subject executive security classifications to judicial review at the insistence of anyone who might seek to question them.

Lest there be any doubt as to the Supreme Court’s teaching respecting Exemption (b)(1), its opinion, 410 U.S. at 84, 93 S.Ct. at 834, emphasized:

What has been said thus far makes wholly untenable any claim that the Act intended to subject the soundness of executive security classifications to judicial review at the insistence of • any objecting citizen.

There was to be no room for challenge, no “balancing” function, no in camera inspection. Rather, upon the basis of the “showing and in such circumstances, petitioners had met their burden of demonstrating that the documents were entitled to protection under Exemption 1, and the duty of the District Court under § 552(a)(3) was therefore at an end.” EPA v. Mink, 410 U.S. at 84, 93 S.Ct. at 835.

In that very case, strikingly different treatment was prescribed even as to executive materials claimed to be immune from disclosure under Exemption 5. EPA v. Mink, 410 U.S. at 85 et seq., 93 S.Ct. 827. The applicability of Exemption 7 no less will turn ultimately upon a determination by the district court that disclosure is not required — as in the instant case.

Granted that the Attorney General may designate certain investigatory files as having been compiled for law enforcement purposes, his ipse dixit does not finalize the matter, for there remains the judicial function of determining whether that classification be proper. Where the district court can conclude that the Attorney General’s designation and classification are correct, the Freedom of Information Act requires no more. Here the record overwhelmingly demonstrates how and under what circumstances the files were compiled and that indeed they were “investigatory files compiled for law enforcement purposes.” When the District Judge made that determination, he correctly perceived that his duty in achieving the will of Congress under the Freedom of Information Act was at an end.

Thus he ruled that there was no claim upon which relief could be granted, that there was no issue as to any material fact, and that the Department was entitled to judgment as a matter of law. The action was thereupon dismissed.

Affirmed.

BAZELON, Chief Judge,

dissenting:

In Environmental Protection Agency v. Mink, Mr. Justice White, writing for a majority of the Court, reviewed the legislative history of one section of the Freedom of Information Act, that which exempts from disclosure “matters that are (1) specifically required by Executive order to be kept secret in the interest of the national defense or foreign policy.” On the basis of the legislative history and the explicit statutory language, the majority concluded that “Congress chose to follow the Executive’s determinations in these matters Rather than follow some vague standard, the test was to be simply whether the President has determined by Executive Order that particular documents are to be kept secret.”

In this case, appellant Weisberg seeks the following information:

Spectrographic analysis of bullet, fragments of bullet and other objects, including garments and part of vehicle and curbstone said to have been struck by bullet and/or fragments during assassination of President Kennedy and wounding of Governor Connally.

In response to Weisberg’s request for this information, the Justice Department stated:

. that the work notes and raw analytical data on which the results of the spectrographic tests are based are part of the investigative files of the FBI and are specifically exempted from public disclosures as investigatory files compiled for law enforcement purposes. 5 U.S.C. 552(b)(7). The results of the spectrographic tests are adequately shown in the report of the Warren Commission where (Volume 5, pages 67, 69, 73 and 74) it is specifically set forth that the metal fragments were analyzed spectrographi-eally and found to be similar in composition.

Thus, we deal in this case, not with Section . 552(b) (1), but with Section 552(b)(7). The latter provision exempts from disclosure “matters that are investigatory files compiled for law enforcement purposes except to the extent available by law to a party other than an agency.” I have no doubt that, as Judge Danaher’s majority opinion concludes, the information sought in this case is lodged in a file originally compiled for law enforcement purposes. I cannot, however, agree with the majority that this fact automatically brings the information within the ambit of Section 552(b)(7). There remains the question whether such information is to be considered as resting solely within an “investigative file” when the results of the spectrographic tests have been made public in the Warren Commission report and when there is no indication that the Government contemplates use of the information for law enforcement purposes.

The reasons that support my position are fully stated in Judge Frank Kaufman’s majority opinion for the panel that originally heard this case, an opinion in which I concurred and which was withdrawn when the case was ordered to be reheard en banc. I set forth here the central part of Judge Kaufman’s opinion:

In Bristol-Myers Company v. F. T. C. [138 U.S.App.D.C. 22], 424 F.2d 935, 939-40 (D.C.Cir.), cert. denied, 400 U.S. 824 [91 S.Ct. 46, 27 L.Ed.2d 52] (1970), Chief Judge Bazelon, in reversing the grant of a motion to dismiss the plaintiff’s Freedom of Information Act complaint, and in commenting upon the 5 U.S.C. § 552(b) (7) exemption, wrote:
* * * [T]he agency cannot, consistent with the broad disclosure mandate of the Act, protect all its files with the label “investigatory” and a suggestion that enforcement proceedings may be launched at some unspecified future date. Thus the District Court must determine whether the prospect of enforcement proceedings is concrete enough to bring into operation the exemption for investigatory files, and if so whether the particular documents sought by the company are nevertheless discoverable.

In the within case, no criminal or civil action relating to the death of President Kennedy is pending nor is it indicated by the Government that any such future action is contemplated by anyone. Nor is Weisberg the subject of any investigation. He simply asks for information which he alleges he is entitled to have made available to him under 5 U.S.C. § 552(a)(3). The language of Section 552, supported abundantly by the legislative history of the Freedom of Information Act, places the burden on the Government to show, why non-revelation should be permitted, and requires that exemptions from disclosure be narrowly construed and that ambiguities be resolved in favor of disclosure. See generally Getman v. N. L. R. B. [146 U.S.App.D.C. 209], 450 F.2d 670, 672 (D.C.Cir. 1971); Soucie v. David [151 U.S.App.D.C. 144], 448 F.2d 1067, 1080 (D.C.Cir. 1971); Wellford v. Hardin, 444 F.2d 21, 25 (4th Cir. 1971); Bristol-Myers Company v. F. T. C., supra at 938-40; M. A. Shapiro & Co. v. Securities & Exchange Comm’n, 339 F.Supp. 467, 469, 470 (D.D.C.1972); cf. LaMorte v. Mansfield, 438 F.2d 448 (2d Cir. 1971) (Friendly, J.). In Wellford v. Hardin, supra at 25, Judge Butzner commented that 5 U.S.C. § 552(c) provides that the Act “ ‘does not authorize withholding of information or limit the availability of records to the public, except as specifically stated’ ” and noted Professor Davis’ emphasis upon “ ‘[t]he pull of the word “specifically” .’” K. Davis, The Information Act: A Preliminary. Analysis, 34 U.Chi.L.Rev. 761, 783 (1967).

* * -x- * * *

. The Court below granted the Government’s motion to dismiss, not its motion for summary judgment. Thus, it seemingly accorded no weight to the affidavit of Agent Williams. But even if that affidavit is given full consideration, it is a document which is most general and conclusory and which in no way explains how the disclosure of the records sought is likely to reveal the identity of confidential informants, or to subject persons to blackmail, or to disclose the names of criminal suspects, or in any other way to hinder F.B.I. efficiency. The conclusion that the disclosure Weisberg seeks will cause any of those harms is neither compelled nor readily apparent, and therefore does not satisfy the Department’s burden of proving under 5 U.S.C. § 552(b)(7), as the Department must, some basis for fearing such harm. Neither the F.B.I. nor any other governmental agency can shoulder that burden by simply stating as a matter of fact that it has so done, or by simply labelling as investigatory a file which it neither intends to use, nor contemplates making use of, in the future for law enforcement purposes, at least not without establishing the nature of some harm which is likely to result from public disclosure of the file. Something more than mere edict or labelling is required if the Freedom of Information Act is to accomplish its “primary purpose, i. e., ‘to increase the citizen’s access to government records.’ ”

The above was, of course, written in the context of the facts of this case. In most cases perhaps, the Government may satisfy its burden of proof simply by establishing that the information sought was compiled for investigatory purposes and rests in an investigatory file, none of the contents of which have ever been made public. But that is not the case here.

I continue to agree with Judge Kaufman that the purpose of the Act should not be defeated if there is available a judicial technique for advancing it and at the same time ensuring that no harm comes to the interests Congress intended to protect. In camera inspection, as required by the remand order of the withdrawn opinion, is such a technique. The fact that, in Mink, the Supreme Court determined that the language and legislative history of the Section (b)(1) exemption did not permit the use of in camera inspection does not mean that the technique is unsuitable in every case involving the Section (b) (7) exemption. Indeed, its use seems most suitable in this case. Without it, the public will have to rely entirely upon the Justice Department’s opinion that “[t]he results of the spectrographic tests are adequately shown in the report of the Warren Commission. . . . ”

I suggest that Congress, in enacting the Freedom of Information Act did not intend that the public would so have to rely.

Accordingly, I dissent, and continue to adhere to the views on this issue expressed by Judge Kaufman in his majority opinion for the panel.

      . The appellant’s complaint in paragraph 6 had alleged that after the assassination of President Kennedy on November 22, 1963, the Federal Bureau of Investigation had spectrographically analyzed and compared the following items:
      a) the bullet found on the stretcher of either President Kennedy or Governor John Connally of Texas (Identified as Exhibit 399 of the President’s Commission on the Assassination of President Kennedy, hereafter referred to as the Warren Commission) ;
      b) bullet fragment from front seat cushion of the President’s limousine ;
      c) bullet fragment from beside front seat;
      d) metal fragments from the President’s head;
      1 e) metal fragment from the arm of Governor Connally;
      f) three metal fragments recovered from rear floor board carpet of limousine ;
      g) metal scrapings from inside surface of windshield of limousine ; and
      h) metal scrapings from curb in Dealey Plaza which was struck by bullet or fragment.

      . Following argument of Weisberg’s appeal, the respective opinions of a divided court were vacated when we entered our order for rehearing en hanc.

      . Prior to the institution of this action the Attorney General had denied appellant’s application for administrative relief wherein he described as “records” the following:
      Speetrographic analysis of bullet, fragments of bullet and other objects, including garments and part of vehicle and curbstone said to have been struck by bullet and/or fragments during assassination of President Kennedy and wounding of Governor Connally.

      . The appellant chose not to counter the Department’s affidavit filed in support of its Rule 12(b) (6) motion to dismiss for failure to state a claim upon which relief could be granted, or alternatively, for summary judgment. No material issue of fact was presented in any event. See Irons v. Schuyler, 151 U.S.App.D.C. 23, 28, 465 F.2d 608, 613, cert. denied, 409 U.S. 1076, 93 S.Ct. 682, 34 L.Ed.2d 664 (1972); cf. Carter v. Stanton, 405 U.S. 669 at 671, 92 S.Ct. 1232, 31 L.Ed.2d 569 (1972); and see Nichols v. United States, 460 F.2d 671, 675 (10 Cir..), cert. denied, 409 U.S. 966, 93 S.Ct. 268, 34 L.Ed.2d 232 (1972).

      . Congress by Pub.L. 89-141 approved August 28, 1965, 18 U.S.C. § 1751, prescribed penalties to apply in cases of assassination of a president and other identified officers and dealt with conspiracies to accomplish any such proscribed offense.

      . By Executive Order No. 11130, 28 Fed.Reg. 12789 (1963), President Johnson appointed a Special Commission under the Chairmanship of Chief Justice Warren “to examine the evidence developed by the Federal Bureau of Investigation and any additional evidence that may hereafter come to light or be uncovered by federal or state authorities.” Congress cooperated and passed Public Law 88-202, approved December 13, 1963, authorizing the Commission to require the át-tendance of witnesses and the production of evidence.

      . We are not at this point concerned with the “except” clause of subsection (7) which protects the Department’s files “except to the extent available by law to a party other than an agency.” See the definition of “party” in 5 U.S.C. § 551(3) and note 15, infra.

      . S.Rep.No.813, 89th Cong., 1st Sess., at 3 (1965); see also H.R.Rep.No.1497, 89th Cong., 2d Sess., at 6 (1966). EPA v. Mink, 410 U.S. 73, 80, n. 6, 92 S.Ct. 827, 35 L.Ed. 2d 119 (1973), Frankel v. Securities and Exchange Commission, 460 F.2d 813, 817, (2 Cir.), cert. denied, 409 U.S. 882, 93 S.Ct. 125, 34 L.Ed.2d 146 (1972); and see Cowles Communications, Inc. v. Department of Justice, 325 F.Supp. 726, 727 (N.D.Cal.1971), (where in-camera inspection was directed only to ascertain whether or not there was an investigatory file compiled for law enforcement purposes). And see Evans v. Department of Transportation of United States, 446 F.2d 821, 824, n. 1, (5 Cir. 1971), cert. denied, 405 U.S. 918, 92 S.Ct. 984, 30 L.Ed.2d 788 (1972) and N. L. R. B. v. Clement Brothers Co., 407 F.2d 1027 (5 Cir. 1969).

      . Frankel v. Securities and Exchange Commission, supra, note 8, 460 F.2d at 818.

      . Bannercraft Clothing Company, Inc. v. Renegotiation Board, 151 U.S.App.D.C. 174, 181, 466 F.2d 345, 352 (1972) cert. granted, 410 U.S. 907 (1973); and see American Mail Line Ltd. v. Gulick, 133 U.S.App.D.C. 382, 411 F.2d 696 (1969); see also Grumman Aircraft Engineering Corp. v. The Renegotiation Board, 157 U.S.App.D.C. 121, 482 F.2d 710 (1973).

      . And see, generally, our discussion in Getman v. National Labor Relations Board, 146 U.S.App.D.C. 209, 218, 450 F.2d 670, 679-680 (1971); Sterling Drug, Inc. v. Federal Trade Commission, 146 U.S.App.D.C. 237, 244, 450 F.2d 698, 705 (1971); Soucie v. David, 145 U.S.App.D.C. 144, 154, 448 F.2d 1067, 1077 (1971); Irons v. Schuyler, 151 U.S.App.D.C. 23, 465 F.2d 608, cert. denied, 409 U.S. 1076, 93 S.Ct. 682, 34 L.Ed.2d 664 (1972); Grumman Aircraft Engineering Corp. v. Renegotiation Board, 138 U.S.App. D.C. 147, 425 F.2d 578 (1970).
      Nothing in the foregoing cases runs counter to the Supreme Court’s treatment in EPA v. Mink, 410 U.S. 73, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973).

       Attorney General Richardson, acting pursuant to Title 28 U.S.C. Section 509, by Order No. 528-73, July 11, 1973, 38 Fed.Reg. No. 136, 19029, [and see 5 U.S.C. § 301] has amended earlier regulations relating to materials exempted from compulsory disclosure under the Freedom of Information Act. “Possible releases that may be considered under this section are at the sole discretion of the Attorney General and of those persons to whom authority hereunder may be delegated.” The Order provides for access to material within the Department’s investigatory files compiled for law enforcement purposes “that are more than fifteen years old” subject to certain deletions which include “(4) Investigatory techniques and procedures.’’ (Emphasis added) Compare text quoted supra, and identified in Frankel v. Securities and Exchange Commission, 460 F.2d at 817-818, n. 9, supra.

      . Such cooperation regularly follows as a matter of duty in aid of law enforcement, indeed the magnitude of the effort, scarcely realized, has been delineated in Menard v. Mitchell, 328 F.Supp. 718, 721-722 (D.D.C. 1971), following our remand in that case, 139 U.S.App.D.C. 113, 430 F.2d 486 (1970).
      Cf. Public Law 88-245, the Appropriations Act of 1964, providing funds for the Federal Bureau of Investigation for the “protection of the person of the President of the United States; acquisition . . . and preservation of identification and other records and their exchange with, and for the official use of, the duly authorized officials of States . . . , such exchange to be subject to cancellation if dissemination is made outside the receiving departments.”

      . Mink v. Environmental Protection Agency, 150 U.S.App.D.C. 233, 464 F.2d 742 (1971).

      . Cf. Cowles Communications, Inc. v. Department of Justice, supra, n. 8. See generally the discussion in Vaughn v. Rosen, 157 U.S.App.D.C. 340, 484 F.2d 820 (Aug. 20, 1973).

      . This appellant also argued that if Oswald had lived and had been brought to trial, he would have had a legal right to the spectro-graphic analyses here in question, and accordingly Weisberg must be accorded an equal right. He based this claim upon so much of subsection (b) (7) as appears in the clause “except to the extent available by law to a party other than an agency.” Aside from the fact that there was no such prosecution, Oswald’s “right” would have been recognized only to the extent that the wanted material could have been “available by law,” and then only to himself as a “party” as defined in § 551(3). This appellant does not come within the definition of “party.” The import of this language was discussed in EPA v. Mink, 410 U.S. at 86, 93 S.Ct. at 835, indeed the Court would have allowed public access only to such materials as “a private party could discover in litigation with the agency.” The short answer to appellant’s claim in this respect is that he does not come within the terms of the Act. He was not engaged in litigation with an agency, and neither was Oswald.

      . Cf. Nichols v. United States, 460 F.2d 671 (10 Cir.), cert. denied, 409 U.S. 966, 93 S.Ct. 268, 34 L.Ed.2d 232 (1972).
      Our appellant had sought to test the spec-trographic analyses of materials (listed in our n. 3, supra) not unlike certain items listed in note 1 of Nichols, supra. There Nichols had sought to make his own scientific analysis of the described material, which the court found to be specifically exempted from disclosure by statute, pointing to § 552(b)(3). The opinion cited Pub.L. 89-318, 79 Stat. 1185, November 2, 1965, where the Attorney General acting in “the national interest” designated evidence considered by the Warren Commission to “be preserved.” Such evidence pursuant to § 4 of that Act was to be placed under the jurisdiction of the Administrator of General Services for preservation under such rules and regulations as the Administrator might prescribe. (See generally, 41 CFR § 105-60.101, §§ 105-60.601, 60.602 and 60.604; and Vol. 11, Part 17, 23,002 Congressional Record, 89th Cong. 1st Sess., Sept. 7, 1965).
      The court found — without more — that the rules and regulations are clearly within the grant of authority of Pub.L. 89-318, and that the materials sought by Nichols came within the exemption of § 552(b) (3).
      [Special “Regulations Concerning Procedures for Reference Service on Warren Commission and Related Items of Evidence,” National Archives Record Group 272, provide in subsection 5, in part, that materials which have been subjected to techniques of detailed scientific examination “will be withheld from researchers as a means of protecting them from possible physical damage or alteration and in order to preserve their evidentiary integrity in the event of any further official investigation of the assassination of President John F. Kennedy.”]

      . 410 U.S. 73, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973).

      . 5 U.S.C. § 552(b) (1) (1970).

      . 410 U.S. at 81-82, 93 S.Ct. at 833.

      . United States District Judge for the District of Maryland; Judge Kaufman sat in this case by designation pursuant to 28 U.S. C. § 292(d) (1970).

      . The footnotes of Judge Kaufman’s opinion have been renumbered.

      . S.Rep.No.813, 89th Cong., 1st Sess. 3 (1965), hereinafter cited as Senate Report. House Report at 5.

      . Weisberg contends that certain parts of the Williams’ affidavit do not qualify for consideration under Federal Civil Rule 56. Those contentions, on remand, should, if Weisberg desires, be brought to the attention of the District Court.

      . An F.B.I. investigatory file may generally relate to organized or other crime and may not have been originally intended for use in the prosecution of any named individuals, or, even if so originally intended, may no longer be intended for such use. The data contained in such a file may, however, require the protection of secrecy so as not to dry up future sources of information or to pose a danger to the persons who supplied the information or to prevent invasion of personal privacy. 5 U.S.C. § 552(b)(7) would appear sufficiently flexible to include within its protection such an investigatory file when and if such protection is required. Frankel v. Securities & Exchange Commission, 460 F.2d 813 (2d Cir. 1972); Evans v. Department of Transportation, 446 F.2d 821, 823-824 (5th Cir. 1971), cert. denied, 405 U.S. 918, 92 S.Ct. 984, 30 L.Ed.2d 788 (1972); Cowles Communications, Inc. v. Department of Justice, 325 F.Supp. 726, 727 (N.D.Calif. 1971). In such instances, in camera inspection by the District Court might be appropriate. See discussion infra at n. [11].

      . “The burden of proof is placed upon the agency which is the only party able to justify the withholding.” House Report at 9. And see the specific wording of 5 U.S.C. § 552(a)(3) .... While it may be that the introductory words of Section 552(b) make the burden of proof provisions of Section 552(a)(3) inapplicable in determining whether the Section 552(b) exceptions apply {but see the contrary approach taken in all opinions, majority, concurring and dissenting, in Environmental Protection Agency et al. v. Mink et al., 410 U.S. 73, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973), and the Ninth Circuit’s seeming assumption to the contrary in Epstein v. Resor, 421 F.2d 930, 932 (9th Cir. 1970)), that contention in no way compels any different conclusions than those expressed in this opinion. The underlying philosophy of Section 552 favors disclosure. See Senate Report at 3. Section 552(c) provides that Section 552 “does not authorize withholding of information or limit the availability of records to the public, except as specifically stated in this section.” See the decision supra at pp. 7-8 re Well-ford v. Hardin, supra. The thrust of Section 552(c) is that exceptions from the disclosure provisions of Section 552 are to be carefully construed. See House Report at 11; Senate Report at 10. To place the burden of proof on the plaintiff to prove the nonapplicability of a Section 552(b) exception when the Government as a rule has knowledge of nearly all the facts relevant to such an exception would be contrary to the disclosure philosophy of all of Section 552 and specifically of Section 552(c). Moreover, placing the burden of proof on the plaintiff would also seemingly run contrary to the underlying philosophy set forth in the House Report which, in explaining why the burden of proof was placed on the agency to justify the withholding of information in Section 552(a)(3), stated (at 9): “A private citizen cannot be asked to prove that an agency has withheld information improperly because he will not know the reasons for the agency action.” See also Senate Report at 8. That same reasoning would seem equally applicable in determining the relationship among 552(a)(3), 552(b)(7) and 552(c). * * * * ¡¡!

      . Getman v. N. L. R. B., 450 F.2d supra at 672, in which Judge Wright quoted from Judge Bazelon’s opinion in Bristol-Myers. See Philadelphia Newspapers, Inc. v. Department of H. & U. D., 343 F.Supp. 1176, 1180 (E.D.Pa.1972); Cowles Communications, Inc. v. Department of Justice, supra, 325 F.Supp. at 727.
      “For the great majority of different records, the public as a whole has a right to know what its Government is doing” (emphasis supplied), Senate Report at 5-6. And see also the “conclusion” in House Report at 12: “A democratic society requires an informed, intelligent electorate, and the intelligence of the electorate varies as the quantity and quality of its information varies. A danger signal to our democratic society in the United States is the fact that such a political truism needs repeating. * * »

      . As Judge Kaufman observed in note 8 of the withdrawn opinion,
      [I]n this ease no Executive order, and no matter of national defense or foreign policy, is asserted to be involved. Further, it is to be noted that in remanding in connection with the application of 5 U.S.C. § 552(b) (5) exempting “inter-agency or in-tra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency”, Mr. Justice White in the Environmental Protection Agency case placed the burden of showing entitlement to the (b) (5) exemption upon the Government.

      . Emphasis supplied.