Church of Scientology (the Church) appeals from the district court's refusal to order the United States Postal Service to comply with the Church's Freedom of Information Act (FOIA) request. The district court decision came after this court remanded the case for consideration of the effect of the 1976 FOIA amendments on the Postal Service's claimed exemption.1 The Church contends that the FOIA fully applies to the Postal Service and that the Postal Reorganization Act's investigatory files exemption, 39 U.S.C. § 410(c)(6), is not an exempting statute within the meaning of the amended FOIA, 5 U.S.C. § 552(b)(3). We agree, and reverse the judgment of the district court.

The Postal Reorganization Act, 39 U.S.C. §§ 101-5604, extended the reach of the FOIA to the newly created Postal Service. In accordance with the FOIA, 5 U.S.C. § 552(a)(3),2 the Church sought to obtain any records in possession of the Postal Service that concerned the Church. The Postal Service released numerous documents to the Church, but withheld certain materials, compiled during its investigations of possible criminal offenses.

Unconvinced that the documents were properly withheld, the Church brought a district court action to compel disclosure. After an in camera inspection of the documents, the district court concluded that the files had been compiled for law enforcement purposes. The court granted summary judgment to the Postal Service, holding that the investigatory files were specifically exempted from disclosure by the FOIA, 5 U.S.C. § 552(b)(3) (Exemption 3),3 which incorporates the postal exemption, 39 U.S.C. § 410(c)(6).4

On appeal, this court remanded to the district court to determine whether section 410(c)(6) qualified as an exempting statute within the meaning of the amended version of Exemption 3. 593 F.2d at 904. The district court was also instructed that if it determined that section 410(c)(6) was such an exempting statute, it should then decide whether the Postal Service had complied with its own regulation, found at 39 C.F.R. § 265.6(c),5 and whether the documents were properly withheld under FOIA Exemptions 5 and 7,6 the alternative grounds claimed by the Postal Service. Id. at 905 n.7.

The parties simultaneously filed motions for summary judgment in the district court, addressing the issues raised in the remand order, reviving old arguments, and formulating new ones. The district court granted the Postal Service's motion for summary judgment finding that (1) section 410(c)(6) constitutes an exempting statute under the amended FOIA Exemption 3; (2) the information was properly withheld as material "compiled for law enforcement purposes; " and (3) the Postal Service regulations are permissive and thus do not require disclosure. The Church again appeals.

The Church argues that the district court erred in holding that section 410(c) (6) is an exempting statute within the meaning of amended FOIA Exemption 3. As originally enacted, Exemption 3 simply shielded material "specifically exempted from disclosure by statute." In 1976, Congress narrowed Exemption 3 to cover a statute only if it "(A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld ...."7

The legislative purpose of this amendment has been thoroughly discussed elsewhere. For example, in Irons & Sears v. Dann, 606 F.2d 1215, 1219-20 (D.C.Cir.1979), cert. denied, Irons & Sears v. Commissioner of Patents & Trademarks, 444 U.S. 1075, 100 S. Ct. 1021, 62 L. Ed. 2d 757 (1980), the court summed up the legislative history by stating:

Congress' goal was to overrule legislatively the Supreme Court's decision in Administrator, FAA v. Robertson, 422 U.S. 255, 95 S. Ct. 2140, 45 L. Ed. 2d 164 (1975), which had given an expansive reading to the version of Exemption 3 then in force. The amended text and its legislative history make clear that Congress did not want the exemption to be triggered by every statute that in any way gives administrators discretion to withhold documents from the public. On the contrary, ... (i)t provided that only explicit nondisclosure statutes that evidence a congressional determination that certain materials ought to be kept in confidence will be sufficient to qualify under the exemption (footnotes omitted).8

"Congress did not, however, itself undertake to sort out those nondisclosure statutes that it comprehended as remaining within the exemption from those that it intended to exclude. Instead, it left that task for the courts ...." American Jewish Congress v. Kreps, 574 F.2d 624, 628 (D.C.Cir.1978).

The Postal Service apparently concedes that section 410(c) fails to meet the requirements of subsection (A) of Exemption 3 because it gives the agency complete discretion to grant or withhold investigatory files by providing that the section incorporating the FOIA "shall not require disclosure" in certain cases.9 It contends, however, that the (c)(6) provision need satisfy only one of the two subsections in order to qualify as an FOIA exempting statute, and that it in fact meets the subsection (B) criteria.

a. The Legal Standard

Subsection (B) necessarily contemplates some exercise of administrative discretion, "but its unmistakable thrust, like that of subsection (A), is to assure that the basic policy decision on governmental secrecy be made by the Legislative rather than the Executive branch." Id. The Postal Service argues that the "investigatory files compiled for law enforcement purposes" protected by (c)(6), are "particular types of matters to be withheld," and therefore satisfy subsection (B). It points out that (c)(6) requires no "guesswork" and sets up no "indefinite delineation of categories." Specifying such a concrete category, the Postal Service suggests, is all that subsection (B) requires.

This Postal Service premise, however, rests on too simplistic an analysis of subsection (B) and its judicial gloss. In American Jewish Congress, the District of Columbia Circuit held that section 7(c) of the Export Administration Act, 50 U.S.C. App. § 2406(c), was not an exempting statute under Exemption 3. That statute prohibited disclosure of "information ... deemed confidential or with reference to which a request for confidential treatment is made by the person furnishing such information," unless the agency decides that withholding the information, "is contrary to the national interest." In determining that the requirements of neither subsection (A) nor (B) were satisfied, the court stated:

Nondisclosure is countenanced by Subsection (B) if, but only if, the enactment is the product of congressional appreciation of the dangers inherent in airing particular data and incorporates a formula whereby the administrator may determine precisely whether disclosure in any instance would pose the hazard that Congress foresaw.

574 F.2d at 628-29.

In other words, the policy that the legislature, not the executive, should make decisions about secrecy is frustrated if a statute includes "within its sweep provisions reflecting no more than a vague apprehension that an agency might someday fall heir to sensitive information." Id. at 628.

The American Jewish Congress court, then, suggests two necessary considerations in deciding whether a given "criterion" or enumerated matter satisfies subsection (B). First, a court must consider the underlying congressional intent to exempt material from the FOIA. Somehow Congress must manifest its appreciation of the specific dangers of disclosure, and thus its intent to exempt, or subsection (B) goes unsatisfied. Second, a court must analyze, as it does under subsection (A), the amount of discretion left to the agency. For, as the court noted, statutes setting forth very general benchmarks for secrecy "in fact delegate to administrators the entire burden of identifying the problems disclosure might generate" and thus "do not satisfy subsection (B)'s requirement that Congress have articulated 'particular criteria.' " Id. at 629.

Contrary to the Postal Service's contention, nothing in the line of cases that find certain provisions are exempting statutes within the meaning of Exemption 3 suggests otherwise. For example, in Lee Pharmaceuticals v. Kreps, 577 F.2d 610 (9th Cir. 1978), this court examined section 122 of the Patent Act, 35 U.S.C. § 122, in light of FOIA Exemption 3. Section 122 provides that patent applications must not be released unless the applicant gives authority, release is necessary to carry out other congressional provisions, or the Commissioner determines it is necessary because of "special circumstances." In holding that section 122 is a subsection (B) exempting statute, the court looked to both legislative intent and degree of discretion. It stressed that nothing in the legislative history supported the view that Congress intended to exclude section 122 from FOIA coverage. 577 F.2d at 617. In fact, it found to hold otherwise would mean "destruction of the patent system." Id. Accord Irons & Sears v. Dann, 606 F.2d at 1221. Further, although the court recognized that subsection (B) "could provide for limited discretionary disclosure," in quoting Sears v. Gottschalk, 502 F.2d 122, 126-27 (4th Cir. 1974), cert. denied sub nom., Sears v. Dann, 422 U.S. 1056, 95 S. Ct. 2680, 45 L. Ed. 2d 709 (1975), the court suggested that the absence of guidelines for the Commissioner's exercise of discretion "would not be determinative" because "applications for patents" is a narrow enough class of items. Id. at 616 n.8.

Likewise, in Founding Church of Scientology v. National Security Agency, 610 F.2d 824 (D.C.Cir.1979), the District of Columbia Circuit held that a provision involving the National Security Agency satisfied subsection (B), but not (A). In so holding, the court stated that an examination of the statute "and its legislative history confirms the view that it manifests a 'congressional appreciation of the dangers inherent in airing particular data,' and thus satisfies the strictures of Subsection (B) (footnote omitted)." 610 F.2d at 827-28.

b. Legislative Intent

In first turning to the question whether the legislature intended to exempt Postal Service investigatory files from FOIA disclosure, we do not find that Congress appreciated the dangers inherent in disclosing "investigatory files", thereby formulating criteria "whereby the administrator may determine precisely whether disclosure in any instance would pose the hazard that Congress foresaw."10 American Jewish Congress, 574 F.2d at 628-29. To the contrary, in amending FOIA Exemption 7, Congress made strong statements about the hazards of agencies withholding, carte blanche, any information thrust into an "investigatory file."

The legislative history of Exemption 7, then, provides persuasive evidence of the congressional attitude toward exemption of investigatory materials. As originally enacted, Exemption 7 simply permitted nondisclosure of "investigatory files compiled for law enforcement purposes except to the extent available by law to a private party." 80 Stat. 251 (1966). The only difference between the original Exemption 7 and the (c)(6) postal exemption is that the latter additionally covers investigatory files, "whether or not considered closed."11 In 1974, FOIA Exemption 7 was rewritten to permit the nondisclosure of "investigatory records compiled for law enforcement purposes, but only to the extent that producing such records " would involve one of six enumerated dangers (emphasis added).12

The Supreme Court thoroughly reviewed the legislative history and purpose of Exemption 7 in NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 98 S. Ct. 2311, 57 L. Ed. 2d 159.13 In proposing the amendment, "Senator Hart emphasized his concern that 'material cannot be and ought not be exempted merely because it can be categorized as an investigatory file compiled for law enforcement purposes.' " Id. at 227, 98 S.Ct. at 2319, quoting the Freedom of Information Act Source Book, Sen. Doc. 93-82, Subcommittee on Administrative Practice & Procedure, Senate Judiciary Committee, 93rd Cong., 2d Sess. 332 (1974). As Congressman Moorehead explained to the House, this concern derived from " 'recent court decisions' that had applied the exemptions to investigatory files 'even if they ha(d) long since lost any requirement for secrecy.' " Id. at 230, 98 S.Ct. at 2321, quoting H.R.Rep.No.92-1419, 92d Cong., 2d Sess. (1972).14 Such cases, "in Senator Hart's view, erected a 'stone wall' against public access to any material in an investigatory file." Id. at 229, 98 S.Ct. at 2320.15

In originally enacting Exemption 7, then, Congress recognized that "law enforcement agencies had legitimate needs to keep certain records confidential, lest the agencies be hindered in their investigations or placed at a disadvantage when it came time to present their case." Id. at 224, 98 S.Ct. at 2318. The thrust of congressional concern and its purpose in its amendment of Exemption 7, however, "was to indicate that 'with passage of time, ... when the investigation is all over and the purpose and point of it has expired, it would no longer be an interference with enforcement proceedings and there ought to be ... disclosure.' " Id. at 232, 98 S.Ct. at 2322.

The Postal Service argues that the congressional concern that led to amendment of Exemption 7 should have no bearing here. Rather, it suggests that by virtue of its "special relationship to the Federal Government," the Postal Service enjoys the power to preempt the FOIA. This special relationship, the Postal Service contends, is manifested by section 410(a), 39 U.S.C., which provides:

(a) Except as provided by subsection (b) of this section, and except as otherwise provided in this title or insofar as such laws remain in force as rules or regulations of the Postal Service, no Federal law dealing with public or Federal contracts, property, works, officers, employees, budgets, or funds, including the provisions of chapters 5 and 7 of title 5, shall apply to the exercise of the powers of the Postal Service.

The argument is unconvincing. The Postal Reorganization Act was passed to "(e)liminate serious handicaps that (were then) imposed on the Postal Service by certain legislative, budgetary, financial, and personnel policies that are outmoded, unnecessary, and inconsistent with the modern management and business practices that must be available if the American public is to enjoy efficient and economical postal service ..." H.R.Rep.No.91-1104, 91st Cong., 2d Sess. 2, reprinted in (1970) U.S.Code Cong. & Ad. News, pp. 3649, 3650. In other words, by limiting the applicability of some federal laws, Congress intended to free the service from "shared management" so it could operate its day-to-day affairs in a more "businesslike way." Id. at 5, U.S.Code Cong. & Ad. News at 3653. In this effort, Congress surely did not mean to place the Postal Service on a pedestal removed from the reaches of social policy and legislation. To the contrary, Congress envisioned that its fundamental postal reform would place responsibility for "managing the system" in a single place, but "with appropriate safeguards against abuse of that responsibility and appropriate assurances of continued congressional surveillance." Id.

The Postal Service cites Zale Corp. v. United States Internal Revenue Service, 481 F. Supp. 486 (D.D.C.1979) as support for its theory of independence from the FOIA. In that case, the court held that a statute in the Internal Revenue Code governed despite a conflicting FOIA provision. The case is distinguishable.

In Zale, the court emphasized that Congress passed the IRS statute after the FOIA. Further, the court found that "the secrecy of tax returns and related information has long been favored in practice, and it is not surprising that Congress would seek to carve out a special protection for this unique and highly sensitive type of information." Id. at 489. Finally, the court noted the elaborate detail of the IRS section, and concluded that no evidence suggested Congress wished to frustrate its "clear purpose and structure." Id.

In the case sub judice, Congress passed the FOIA amendment after the postal exemption, not before as in Zale. And Congress provided a far more detailed structure in Exemption 7 than it had in the (c)(6) postal exemption. Moreover, the express purpose of the IRS statute in Zale stood in "sharp contrast to FOIA's stated preference for disclosure to the general public." Id. Presumably here the purpose of both statutes is to strike a balance between the public need for information and an agency's legitimate need to preserve confidentiality in its investigations. In any event, no evidence of a contrary purpose has been suggested, and we are unable to divine one.

c. Amount of Discretion

Not only do we find no congressional intent to exempt the Postal Service from the rigors of the FOIA, but we also conclude that section 410(c)(6) provides insufficient specificity to take it out of the impermissible range of agency discretion to make decisions rightfully belonging to the legislature. Unlike the exempting statute in Lee Pharmaceuticals v. Kreps, 577 F.2d 610 (9th Cir. 1978), cert. denied, 439 U.S. 1073, 99 S. Ct. 847, 59 L. Ed. 2d 40 (1979), section 410(c) permits the Postal Service total discretion to give or restrict any or all of its investigatory files.16 Thus, it is of no moment that (c)(6) narrows the range of documents to investigatory files "compiled for law enforcement purposes." Moreover, in amending Exemption 7 to read "investigatory records", Congress has already expressly decided that the term "investigatory files" allows too much agency discretion. Therefore, we hold that section 410(c)(6) is not an Exemption 3 statute.17

We reverse the judgment of the district court, but remand for a determination of the remaining issues whether the Postal Service failed to meet its statutory burden of proof,18 and whether the requested information is exempt from disclosure under FOIA Exemptions 5 and 7.

Reversed and remanded.