OPINION AND ORDER
JOHN W. LORD, Jr., District Judge.
This is a proceeding under the Freedom of Information Act, 5 U.S.C.A. § 552 et seq. (hereinafter the Act). Plaintiff
seeks to compel the defendants to provide it with the names of certain appraisers who have, allegedly, appraised, far in excess of their value, dilapidated homes. As a result of these appraisals, furnished to the Federal Housing Authority (hereinafter sometimes FHA), low income buyers, particularly vulnerable to misinformation in economic matters, have been victimized into the purchase of these homes. For reasons set forth within the opinion, we reject the government's claims that these records are immune from disclosure as part of intra-agency memoranda and/or as part of investigatory files, and grant the plaintiff's request.
Since August of 1971, the Inquirer has published a series of articles based on investigations by staff reporters. These articles have detailed the alleged over-evaluations mentioned earlier. The paper's Executive Editor, John McMullan, formally demanded, on August 30, 1971, that, pursuant to the Act, the paper be supplied with the names and addresses of staff appraisers employed by the FHA since January 1, 1969. This information was supplied, although a request for the names and addresses of fee appraisers
who had evaluated certain properties for FHA insurance was denied. The government refused the request because, it alleged, the information was "exempt from disclosure [under the Act] as intra-agency memoranda and as matter that [was] part of investigatory files."
On September 30, 1971, plaintiff filed with Secretary Romney a petition for review of the regional administrator's denial; a review which was denied on November 11, 1971.
The Intra-Agency Memoranda Exemption
The history of the Freedom of Information Act establishes that its primary purpose was to increase the access of the public to information contained in government records. See, e.g., American Mail Line, Ltd. v. Gulick, 133 U.S. App. D.C. 382, 411 F.2d 696 (1969). Prior to enactment of this legislation, the prevailing statute was the Administrative Procedure Act, which was characterized as containing "loopholes which [allowed] agencies to deny legitimate information to the public."
The present act, which grew out of the hearings which so characterized the old legislation, was obviously intended therefore not only to plug those loopholes, but also to restrict severely any exemption to the Act.
The present Act provides
that each agency of the government, on request for identifiable records, "shall make the records promptly available to any person." It further provides that the determination of the district court shall be de novo, with the burden on the agency to justify the refusal to disclose. In addition, regulations promulgated by the Department of Housing and Urban Development (hereinafter sometimes HUD), provide that the agency must, in addition to its burden under the Act, demonstrate "a need in the public interest to withhold the information requested." 24 C.F.R. § 15.21.
This, we find, it has failed to do.
The claimed exemption under § 552(b)(5) is incorrect. This applies only to material subject to the executive privilege, i.e., internally created papers designed to assist in the deliberative or policy-making process of government. Where the material sought is essentially factual, and we believe that names and addresses are,
it falls outside the ambit of protection given by the exemption.
We state most emphatically at this juncture, because it will arise again and again as we distinguish government cases and arguments, that the names and addresses of appraisers are not part of the raw input that contributes to decision making. We also state most emphatically that we reject entirely the notion that the figures they put on houses for insurance purposes are merely that: recommended evaluations of buildings. They are not, and in our eyes cannot rise to be, part of the decision making process of any arm of the government. We hold today that the gap between suggested prices and policy recommendations within the protection of executive privilege is unbridgeable.
The government bases its claim that the exemption is applicable here on two cases, neither of which is controlling. In Ackerly v. Ley, 137 U.S. App. D.C. 133, 420 F.2d 1336 (1969), the appellate court was asked to review a district court determination of the relevance of the intra-agency exemption. The circuit found that it did not have before it a sufficient record on which to decide whether or not the exemption applied, and remanded the action to the trial court. The defendants' reliance here is on a footnote
of the appellate decision which cites the congressional policy behind the exemption, a policy which we have already reviewed and found not to be relevant to appraisers.
Freeman v. Seligson, 132 U.S. App. D.C. 56, 405 F.2d 1326 (1968), relied upon almost the same passage from the legislative history of the act,
and correctly held that truly investigatory documents, pertaining to evaluations and policy recommendations, were exempt. Again, that is not the case before us.
The investigatory files exemption
The government next claims that these names and addresses are protected as part of investigatory files.
This argument is roughly divided into three sections: that the material sought would not be discoverable in any case; that the information sought is part of grand jury documents and cannot be disclosed; and that if it were to be disclosed, and if it were to proceed from investigation to trial, the people named might be subject to prejudicial pre-trial publicity.
The first claim is the most quickly defeated. One purpose of Congress in creating this exemption was to limit those charged with violations of federal statutes to the discovery available to persons charged with violations of federal criminal law. Barceloneta Shoe Corp. v. Compton, 271 F. Supp. 591 (D.P.R. 1967). The exemption prevents a litigant from using the statute to achieve indirectly "an earlier or greater access to investigatory files than he would have directly."
However, an 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."
With regard to the second contention, investigatory files, we feel that the defendants have fallen into a fallacious line of reasoning, one which was predicted before the Act created the current flurry of litigation.
The Act is faulty in its use of the unsatisfactory term "files." Much of the contents of investigatory files compiled for purposes that may include law enforcement should not be exempt from required disclosure.
In Freeman v. Seligson, supra, 405 F.2d at 1340, cited again by the government in support of this argument, the court reviewed some of the documents requested, and found that they, as part of a preparation for prosecution, were exempt from discovery. The material here had no privileged character before its inclusion in grand jury investigative binders. Courts have on numerous occasions construed analogous questions, and in each instance found that where the material requested was not inherently privileged, the right to secret it was not available. In Small Business Administration v. Barron, 240 F. Supp. 434 (W.D.S.C. 1965), in which personal financial records and stock certificates were sought, the court declared
It is, of course, fundamental to proper assertion of the privilege that the material sought was itself in the original instance privileged material.
Id. at 448.