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PHILADELPHIA NEWSPAPERS, INC. v. HUD OF THE UNITED

March 9, 1972

PHILADELPHIA NEWSPAPERS, INC.
v.
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT OF the UNITED STATES et al.


John W. Lord, Jr., District Judge.


The opinion of the court was delivered by: LORD, JR.

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 *fn1" 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 *fn2" 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." *fn3"

 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.

 I

 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." *fn4" 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 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, *fn7" it falls outside the ambit of protection given by the exemption. *fn8"

 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 *fn9" 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. *fn10" 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, *fn11" and correctly held that truly investigatory documents, pertaining to evaluations and policy recommendations, were exempt. Again, that is not the case before us. *fn12"

  II

 The investigatory files exemption

 The government next claims that these names and addresses are protected as part of investigatory files. *fn13" 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 ...


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