Full opinion text
MEMORANDUM OPINION AND ORDER ROVNER, District Judge. Plaintiff Thomas J. Marzen, general counsel of the National League Center for the Medically Dependent and Disabled in Indianapolis, Indiana, brought this action under the Freedom of Information Act, 5 U.S.C. § 552 (“FOIA”), seeking to compel the defendants to disclose certain records. The defendants consist of the United States Department of Health and Human Services (“HHS”), the Secretary of HHS, and two subordinate officials of HHS. Specifically at issue are four records from an investigation by the Office for Civil Rights of HHS into possible discrimination against a handicapped individual involving the withholding of medical care from a newborn infant. The investigation involved the “Infant Doe” incident in Bloomington, Indiana, in which certain medical treatment was withheld from a Down’s syndrome baby with a blocked esophagus who subsequently died. The government refused to release the records citing Exemptions 5, 6, 7(A), and 7(C) of FOIA, 5 U.S.C. §§ 552(b)(5), 552(b)(6), 552(b)(7)(A), and 552(b)(7)(C). In February, 1984, plaintiff filed his complaint for injunctive relief pursuant to 5 U.S.C. §§ 552(a)(3) and 552(a)(4)(B). The government then released some of the requested records, and, on May 12, 1984, filed a Vaughn index as required by Vaughn v. Rosen, 484 F.2d 820 (D.C.Cir.1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974), but continued to withhold four sets of documents under the exemptions cited above. Presently pending before this Court are the parties’ cross-motions for summary judgment. In addition, the government seeks dismissal of defendants Sermier and Roberts on the basis that FOIA does not permit suits against subordinate agency officials. The parties agree that there is no material disputed issue of fact which cannot be resolved by the parties’ various submissions. The motions are granted in part and denied in part for the reasons stated below. FACTS The baby identified in the documents as Infant Doe was born at 8:10 p.m. on Friday, April 9,1982, in Bloomington Hospital, Bloomington, Indiana. At birth, the baby was diagnosed as having Down’s syndrome and also a defective esophagus. Two doctors recommended surgery to correct the blocked esophagus, but the parents decided against surgery or any other treatment, except sedation as necessary. Everyone involved in the situation recognized that the baby would soon die if the surgery was not performed. Infant Doe was delivered by Dr. Walter Owens, an obstetrician with privileges at Bloomington Hospital. Dr. Paul Wenzler, a general practitioner who had been the family physician for the parents, was the infant’s initial attending physician. Both Dr. Owens and Dr. Wenzler tentatively diagnosed Down’s syndrome, and Dr. Wenzler requested a consultation from Dr. James Schaffer, a pediatrician at Blooming-ton Hospital, who agreed with the Down’s syndrome diagnosis and also believed that the infant had tracheoesophageal fistula, a developmental anomaly characterized by an abnormal connection between the trachea and the esophagus resulting in the inability of food and fluids to pass from the mouth to the stomach. Dr. Wenzler and Dr. Schaffer recommended that Infant Doe be transferred immediately to Riley Hospital at the University of Indiana Medical Center, the designated neonatal high risk center, where necessary surgery to correct the tracheoesophageal fistula could be performed. A fourth doctor, Dr. James Laughlin, also a pediatrician on staff at Bloomington Hospital, examined Infant Doe and agreed with the diagnosis already made. He expressly noted, however, “There is clinically no evidence of other congenital anomalies. Further work-up work will be necessary to confirm internal organ defects.” He agreed with the recommendation of Dr. Wenzler and Dr. Schaffer that the infant be transferred immediately for surgery to correct the esophageal atresia. The parents of Infant Doe rejected the recommendation for surgery. At 2:45 p.m. that same day, Saturday, April 10, 1982, the parents signed the following statement by which they approved Dr. Owens’ proposed course of action “that the child remain at Bloomington Hospital with full knowledge that surgery to correct tracheoesophageal fistula was not possible at Bloomington Hospital and that within a short period of time the child would succumb due to inability to receive nutriment and/or pneumonia.” The infant’s medical chart noted that the parents requested that four guidelines be followed in the care of Infant Doe: “(1) Formula may be given if personnel wish, with full recognition that this will likely cause pneumonia and may speed child’s demise. (2) No IV’s. (3) No antibiotics. (4) Sedation as necessary if infant appears to be in pain or distress.” The same day, at the instigation of the attorney for Bloomington Hospital, an emergency hearing was held before Judge John G. Baker of the Monroe County Circuit Court. During the hearing, Blooming-ton Hospital made no representation concerning the appropriate course of treatment which should be followed. Instead, the hospital’s position was that it did not have the knowledge or authority to make diagnoses or to prescribe treatment. The hospital asked the Court to issue a declaratory judgment concerning the proper course of treatment for Infant Doe. Dr. Schaffer testified that the surgery on the esophagus was 90% likely to be successful. Dr. Owens testified that he and two other doctors concurred that the recommended course of treatment should be basic techniques “to aid in keeping the child comfortable and free of pain” because “the possibility of a minimally adequate quality of life was non-existent due to the child’s severe and irreversible mental retardation.” Dr. Laughlin disagreed because “he knew of at least three instances in his practice where a child suffering from Down’s Syndrome had a reasonable quality of life,” although he knew of no instance of children who had both Down’s syndrome and tracheoesophageal fistula. The infant’s father testified that he had been a public school teacher for over seven years and on occasion had worked closely with handicapped children and with children with Down’s syndrome and that “he and his wife felt that minimally acceptable quality of life was never present for a child suffering from such a condition.” He further testified that, after consulting with all four doctors, he and his wife had determined that it was in “the best interest of Infant Doe and the two children at home and their family entity as a whole, that the course of treatment prescribed by Dr. Owens should be followed.” At the conclusion of the hearing, Judge Baker held that the parents, “after having been fully informed of the opinions of two sets of physicians, have the right to choose a medically recommended coursé of treatment for their child in the present circumstances.” In a subsequent letter, apparently to a citizen, Judge Baker elaborated on his rationale, stating: In the “Infant Doe” case, it could not be said that the parents were not acting in the best interests of the child, even though other parents might have acted differently. It is a harsh view that no life is preferable to life, but the great weight of the medical testimony at the hearing I conducted was that even if the proposed surgery was successful, the possibility of a minimally adequate quality of life was non-existent. In his written declaratory judgment dated April 12, 1982, Judge Baker also appointed the Monroe County Department of Public Welfare (“MCDPW”) as guardian ad litem for Infant Doe to determine whether to appeal his judgment. At 10:00 p.m. that same day, the six-member Child Protection Team of the MCDPW met at Bloomington Hospital to determine whether to appeal Judge Baker’s decision. Those also present included the four Bloomington doctors mentioned above, the parents of another Down’s syndrome child who testified as to the hardships of raising such a child, and an attorney for Infant Doe’s parents, who suggested the presence of additional medical complications, including a heart condition. No minutes or records of this meeting were kept by the MCDPW. After deliberating for approximately one hour, and without reviewing Infant Doe’s medical records, the members of the Child Protection Team decided not to appeal Judge Baker’s decision, and they filed their report to that effect with Judge Baker on Tuesday, April 13, 1982. Judge Baker nonetheless immediately appointed on April 13, 1982 Philip C. Hill, a Bloomington attorney, who also represented Dr. Laughlin, as guardian ad litem to prosecute an appropriate appeal from his ruling. Mr. Hill filed a petition for a temporary restraining order to provide treatment for Infant Doe, which Judge Baker denied at 10:50 p.m. That same day, the county prosecutor sought an order from the Monroe County Circuit Court, Juvenile Court Docket that the MCDPW take immediate custody of Infant Doe and provide emergency treatment. This action was taken pursuant to Indiana Code 31-6-4-10, under which a county prosecutor or county department of public welfare may file a petition to declare a child to be “a child in need of services” (referred to as a “CHINS petition”). Under that statute, a “child in need of services” includes a child whose “physical or mental condition is seriously impaired or seriously endangered as a result of the inability, refusal or neglect of his parent, guardian or custodian to supply the child with necessary food, clothing, shelter, medical care, education or supervision.” I.C. 31-6-4-10. Dr. Laughlin and Mr. Hill asked the county prosecutor to file the CHINS petition because the MCDPW had already concluded that the parental decision was not wrongful. The CHINS petition argued that Infant Doe’s life was endangered by the refusal of his parents to provide necessary medical care and was supported by affidavits from Drs. Laughlin and Schaffer. Finally, also on April 13, 1982, Mr. Hill, as guardian ad litem for Infant Doe, and the county prosecutor sought an emergency order from the Indiana Supreme Court in the form of a writ of mandamus to the Monroe County Circuit Court to order the treatment of the child. On Wednesday, April 14, 1982, Judge Spencer denied the county prosecutor’s petition for an order declaring Infant Doe to be “a child in need of services” under Indiana law because “the State has failed to show that this child’s physical or mental condition is seriously impaired or seriously endangered as a result of the inability, refusal, or neglect of his parents to supply the child with necessary food and medical care.” Also on that day, the Indiana Supreme Court denied the petition for a writ of mandamus without issuing a written opinion. At 10:03 p.m. on April 15, 1982, Infant Doe was pronounced dead by Drs. Schaffer, Laughlin, and Owens while attorneys acting as his guardian ad litem were attempting to appeal to the United States Supreme Court. The Indiana Supreme Court sealed all records the next day, April 16, 1982. The Office for Civil Rights (“OCR”) of HHS initiated an investigation, pursuant to its purported responsibility under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, for investigating possible violations of that Act by recipients of federal funds. The investigation focused on Bloomington Hospital and the MCDPW, both of which had received HHS funds. The MCDPW initially resisted cooperation with the investigation, but it eventually supplied the documents that OCR had requested after OCR stressed that the confidentiality of the records would be protected pursuant to OCR regulations, specifically 45 C.F.R. § 80.6(c), and after the Chief Justice of the Indiana Supreme Court had issued an order allowing the MCDPW to turn the documents over to HHS and ordering HHS to keep them confidential. The investigation was conducted by an investigator in OCR’s Regional Office in Chicago. He prepared a draft report on the investigation and, in accordance with OCR practice, sent it to OCR headquarters. The draft report included excerpts from the medical records that were not quoted in records already made available to the public. This draft report is one of the records at issue in this case. Later, a final draft was prepared which ultimately was produced pursuant to the plaintiff’s FOIA request. OCR’s investigation of the Infant Doe incident was completed without a recommendation for the initiation of enforcement proceedings under the Rehabilitation Act. The investigation centered on Bloomington Hospital and MCDPW as recipients of federal funds. The Bloomington Hospital took the position that “it did everything within its power to obtain authority to see that surgery was provided.” The MCDPW took the position that, because the Indiana courts decided that Infant Doe was not a “child in need of services” under Indiana law, that determination was dispositive. Therefore, the MCDPW could not be shown to have withheld discriminatorily child protective services from a “qualified” handicapped individual. Since April, 1982, two developments have occurred which affect the issue of whether the MCDPW achieved voluntary compliance with the Rehabilitation Act. First, the Indiana legislature amended its child abuse and neglect law to add to Indiana Code 31-6-4-3 the following: A child in need of services includes a handicapped child who is deprived of nutrition that is necessary to sustain life, or who is deprived of medical or surgical intervention that is necessary to remedy or ameliorate a life-threatening medical condition, if the nutrition or medical or surgical intervention is generally provided to a similarly situated handicapped or nonhandicapped child. Second, the Indiana Department of Public Welfare adopted procedures and methods of administration in compliance with 45 C.F.R. § 84.55(c), a regulation designed to assure that county public welfare departments use their statutory authority to prevent instances of medical neglect of handicapped infants. These newly adopted procedures incorporated the state statutory amendment and all of the elements specified in 45 C.F.R. § 84.55(c). Because the Director of the MCDPW assured OCR that the MCDPW was functioning in accordance with the new procedures, OCR’s investigation ended without an immediate recommendation for further action. The FOIA request that led to this suit essentially sought all records in OCR’s possession relating to the Infant Doe incident. Plaintiff is counsel to the guardian ad litem of Infant Doe and was formerly Chief Staff Counsel of the Americans United for Life Legal Defense Fund, a public interest law firm providing legal services for “human beings at all stages of biological development, regardless of age or condition of dependency.” (Affidavit of Thomas J. Mar-zen, ¶ 1.) Plaintiff filed this action in that capacity, and he acknowledges in his affidavit that, as counsel to the guardian of Infant Doe, he was aware of all the information he requested from HHS except for Infant Doe’s medical records, which were not a part of the original court records but which were sealed by the Indiana Supreme Court at the parents’ request after Infant Doe’s death. (Marzen Affidavit, If 3.) Plaintiff declares that, although he was privy to the documents he requested except for the medical records, he considers himself bound by the order of the Indiana Supreme Court not to disclose the documents he secured as counsel to the guardian of Infant Doe. (Marzen Affidavit, ¶ 5.) He seeks disclosure of the documents for public inspection. He also wishes to be able to participate in the debate on a case of “great public interest” which “has generated significant journalistic commentary, wide public concern, and political consequences of the highest order.” (Marzen Affidavit, 11118, 9.) Plaintiff concludes his affidavit by stating: 11. Because of the clear public interest to be served by disclosure of the requested documents and because the Indiana judiciary steadfastly refused to allow them to be released, I decided to seek these documents from the Department of Health and Human Services under the Freedom of Information Act after it became apparent that the Department would take no action against Bloomington Hospital or any other individual or entity involved in the decision-making process leading to Infant Doe’s death. Secured in this fashion, the documents would not be subject to the same legal and ethical constraints that adhere to the documents I secured and inspected as counsel to the guardian of Infant Doe. Should I secure them from the Department I would submit them to interested publishers and researchers so that they could become matters of public record, analysis, and commentary. 12. My sole purpose in pursuing this action is to expose the legal process and medical circumstances that attended the death of Infant Doe to public scrutiny. I have no interest in exposing the identity of either the parents of Infant Doe or of Infant Doe. As an attorney and as a private citizen, I am motivated by a firm belief in the policy that underlies both the Freedom of Information Act and the First Amendment to the United States Constitution favoring full public disclosure of and debate on all matters of public import, such as the circumstances that attended judicial sanction of the death of Infant Doe. (Marzen Affidavit, ¶1¶ 11, 12.) Access to all records requested by plaintiff and located by OCR was initially denied, partly because the investigation was still open and disclosura could interfere with that investigation. Plaintiffs administrative appeal was denied for the same reason. After that appeal was denied, the investigative phase of the OCR proceeding was closed, and HHS released a number of documents to plaintiff, primarily correspondence between OCR and the state agencies, pleadings filed with and papers issued by the state courts, and the final version of the OCR Investigative Report, which explains the issues in the investigation and contains facts relevant to those issues. At this stage, the government continues to withhold only four sets of records: document 1 is the medical records of the Infant Doe incident from Bloomington Hospital; document 2 is the report to the Monroe County Circuit Court from the Director of the MCDPW; document 3 is a roster of the members of the Child Protection Team; and document 4 is the draft of the Investigative Report. DISCUSSION FOIA was designed to expose both the processes of government and governmental records to public scrutiny unless the requested records are exempt under nine “clearly delineated statutory exemptions.” Department of Air Force v. Rose, 425 U.S. 352, 360-61, 96 S.Ct. 1592, 1598-99, 48 L.Ed.2d 11 (1976). The exemptions claimed here by the government for each category of documents are Exemptions 5, 6, 7(A), and 7(C). First, the government claims that documents 1-3 are non-disclosable under Exemption 7(A) which protects “investigatory records compiled for law enforcement purposes” to the extent that disclosure would “interfere with enforcement proceedings.” 5 U.S.C. § 552(b)(7)(A). The government contends that failure to preserve the confidentiality of investigatory records would make it much more difficult, if not impossible, to obtain such documents quickly in future investigations. Indeed, it was only on the promise of guaranteed confidentiality, to the extent allowed by law, that the government obtained the records in this case. Second, the government claims that the Infant Doe medical records (and the portions of those records excerpted in the draft Investigative Report) are protected by Exemptions 6 and 7(C) of FOIA. Exemption 6 protects records “the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6). Exemption 7(C) protects , law enforcement investigatory records to the extent that disclosure would “constitute an unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C). The government contends that because the medical records contain the intimate details of Infant Doe’s condition and of the parents’ responses and conduct throughout the six day period of the baby’s life, disclosure of those records would constitute a clearly unwarranted invasion of the parents’ privacy while serving no public interest. Similarly, the government claims that disclosing the Child Protection Team membership roster and that portion of document 2 that lists the names of members of the Team would invade the team members’ privacy unnecessarily and could result in harassment of those individuals. Finally, the government contends that the draft investigatory report is protected by the evidentiary privilege for memoranda that are part of the government’s deliberative process and by Exemption 5 of FOIA which protects “intra-agency memorandums ... which would not be available by law to a party other than an agency in litigation with the agency.” 5 U.S.C. § 552(b)(5). See also United States v. Weber Aircraft Corp., 465 U.S. 792, 104 S.Ct. 1488, 79 L.Ed.2d 814 (1984); Federal Trade Commission v. Grolier, Inc., 462 U.S. 19, 103 S.Ct. 2209, 76 L.Ed.2d 387 (1983). Plaintiff responds first by emphasizing the enormous degree of public interest spawned by the Bloomington Infant Doe case which must be balanced against the various privacy interests involved under Exemptions 6 and 7(C) of the FOIA. As proof of the extent of public interest, plaintiff contends that the Chicago Tribune considered this Infant Doe case as the primary catalyst for the “Infant Doe regulations” and for the Child Abuse Amendments of 1984. See, e.g., Chicago Tribune, Oct. 10, 1984, sec. 1, p. 4; Dec. 8, 1984, sec. 1, p. 10. The case has also spawned a host of legal commentary. See, e.g., Shapiro, Medical Treatment of Defective Newborns: An Answer to the “Baby Doe" Dilemma, 20 Harv.J. on Legis. 137 (1983); Comment, Defective Newborns: Inconsistent Application of Legal Principles Emphasized By the Infant Doe Case, 14 Tex.Tech.L.Rev. 569 (1983); Comment, The Legacy of Infant Doe, 34 Baylor L.Rev. 699 (1982). Plaintiff identifies two components of the public interest in support of disclosure: (1) the lawful disclosure of the complete facts surrounding the birth, care, and death of Infant Doe to stimulate public debate based on accurate information; and (2) the examination of the records as a means of overseeing and evaluating the mandate of OCR to investigate “Infant Doe” incidents under Section 504 of the Rehabilitation Act of 1973 and the similar mandate of Indiana officials to investigate such incidents under Indiana law. As to the first component, plaintiff stresses that to date, reports of the Infant Doe incident have been neither complete nor accurate. Because the First Amendment contains “the antecedent assumption that valuable public debate — as well as other civic behavior — must be informed,” Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 587, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980) (J. Brennan, concurring), plaintiff contends that the fundamental value of First Amendment principles is shattered when the true facts are suppressed and the facts assumed are inaccurate. Plaintiff and others who have submitted affidavits in support of the plaintiff’s motion for summary judgment recognize that the identities of Infant Doe and his parents “are wholly irrelevant to the larger concern that the rights of handicapped newborns be protected” (Plaintiff's Brief at 7) and seek disclosure of the records with all references to the identities of the Does deleted. Plaintiff and the other affiants represent public interest groups who are vitally concerned with the rights of handicapped persons, and they believe that the disclosure of accurate information will help them to demonstrate their view that “intentional starvation is an arbitrary and capricious course of action, which should never be undertaken with regard to Down’s Syndrome newborns.” (Plaintiff’s Brief at 7.) As to the second component of the public interest identified above, plaintiff stresses that it is crucial for an accurately informed electorate to maintain accountability over state and federal public officials. Indeed, “the people’s right to know what their government is doing” was the basis upon which FOIA was enacted, as its legislative history repeatedly indicates. This interest includes even salary and other information concerning public employees, Aug v. National Railroad Passenger Corp., 425 F.Supp. 946, 951 (D.D.C.1976), and extends to state and local government employees as well as to employees of the federal government. The media have questioned the government’s handling of the Infant Doe incident and others like it, and plaintiff asserts that access to the requested records will permit the public to better assess the validity of these accusations and evaluate whether the government conducted the investigation properly. As a corollary, knowledge of the identities of the members of the Child Protection Team is essential to the rights of citizens to hold their elected and appointed officials accountable: “Secret Star Chambers are not accountable to the people.” (Plaintiff’s Brief at 9.) FOIA expressly provides that when a governmental agency refuses to disclose records so that the party who requested the records must file suit to obtain them, “the burden is on the agency to sustain its action.” 5 U.S.C. § 552(a)(4)(B). “To meet this burden and to assist the court in making its determination, the agency must provide detailed justification for its claim of exemption, addressing the requested documents specifically and in a manner allowing for adequate adversary testing.” Antonelli v. Drug Enforcement Administration, 739 F.2d 302, 303 (7th Cir.1984). It normally does this through the submission of a Vaughn index. Vaughn v. Rosen, 484 F.2d at 823. The nine statutory exemptions are exclusive, narrowly construed, and limited so as not to “obscure the basic policy that disclosure, not secrecy, is the dominant objective of the Act.” Department of the Air Force v. Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 1599, 48 L.Ed.2d 11 (1976); see also Federal Bureau of Investigation v. Abramson, 456 U.S. 615, 630, 102 S.Ct. 2054, 2063, 72 L.Ed.2d 376 (1982); N.L.R.B. v. Robbins Tire & Rubber Co., 437 U.S. 214, 220-21, 98 S.Ct. 2311, 2316, 57 L.Ed.2d 159 (1978). Reflecting this policy, the FOIA exemptions are permissive and not mandatory in the sense that FOIA permits exemption but does not require it. General Dynamics Corp. v. Marshall, 572 F.2d 1211, 1216 (8th Cir.1978), vacated on other grounds, 441 U.S. 919, 99 S.Ct. 2024, 60 L.Ed.2d 392 (1979). Moreover, FOIA specifically provides that “any reasonably segregable portion of a record shall be provided ... after deletion of the portions which are exempt under this subsection [b].” 5 U.S.C. § 552(b). Finally, although other statutes may exempt specific information from disclosure under FOIA, no agency regulation can circumvent FOIA by prohibiting disclosure of information otherwise required to be disclosed under FOIA. Washington Research Project, Inc. v. Department of Health, Education and Welfare, 504 F.2d 238, 253 (D.C.Cir.1974), cert. denied, 421 U.S. 963, 95 S.Ct. 1951, 44 L.Ed.2d 450 (1975). See also Mobil Oil Corp. v. Federal Trade Commission, 406 F.Supp. 305, 310 (S.D.N.Y.1976), Burroughs Corp. v. Schlesinger, 403 F.Supp. 633, 637 (E.D.Va.1975). Indeed, the legislative history of FOIA indicates that no agency has the “statutory authority to extend blanket exemption, let alone to solicit the exemptions of confidentiality.” 1975 Source Book, supra note 3, at 23. Although the parties’ briefs in this case focus on whether the various exemptions to FOIA may be applied to preclude disclosure, a more fundamental issue must be addressed first: whether the requested records are “agency records” within the meaning of FOIA. FOIA empowers federal courts to order an agency to produce “agency records improperly withheld” from an individual requesting access. 5 U.S.C. § 552(a)(4)(B). The agency whose “records” are at issue in this case is the Office for Civil Rights of the Department of Health and Human Services. According to the government, OCR has the responsibility to investigate possible acts of discrimination against those who are handicapped in violation of Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794. HHS has promulgated regulations implementing Section 504 at 45 C.F.R. § 84. Under 45 C.F.R. § 84.61, the procedures set forth at 45 C.F.R. §§ 80.6 through 80.10, and at 45 C.F.R. § .81, apply to investigations of potential violations of Section 504. According to the government, 45 C.F.R. § 80.7(c) authorizes HHS to investigate potential violations of Section 504, and 45 C.F.R. § 80.6(c) requires recipients of HHS funds to provide the government access to information in connection with the compliance investigation. OCR conducted this Infant Doe investigation purportedly pursuant to the authority vested in it under Section 504 as implemented through these regulations. The Second Circuit has held, however, that HHS lacked statutory authority to conduct “Infant Doe” type investigations and to compel the production of medical records under Section 504 of the Rehabilitation Act of 1973. United States v. University Hospital, State University of New York at Stony Brook, 729 F.2d 144 (2d Cir.1984); American Hospital Ass’n v. Heckler, 585 F.Supp. 541 (S.D.N.Y.1984), aff'd, 794 F.2d 676 (2d Cir.1984), cert. granted, — U.S. -, 105 S.Ct. 3475, 87 L.Ed.2d 611 (1985). If the Second Circuit’s position is affirmed in pertinent part by the Supreme Court, the primary crucial question in this case becomes: are records which were obtained by a governmental agency, purportedly under statutory authority for investigation and compliance purposes, which authority was later declared to be non-existent, nonetheless “agency records” within the scope of FOIA that must be disclosed unless an exemption applies? Despite this Court’s specific request that the parties address this question in supplemental briefs, neither party has done so adequately. The government’s supplemental brief does not discuss the issue at all, and the plaintiff addresses it only with arguments which are either irrelevant, superficial, or border on the frivolous. Plaintiff argues first that OCR did not obtain these Infant Doe records under the regulations struck down in American Hospital Ass’n or in University Hospital, but under Section 504’s procedural regulations that have never been questioned. This argument is so disingenuous that it bears quoting in full: In AHA v. Heckler, 585 F.Supp. 541 (S.D.N.Y.1984), the plaintiffs challenged the “final regulations” promulgated by the Department of Health and Human Services (HHS) (“45 C.F.R. § 84.55(b)-(e), 49 Fed.Reg. 1622, et seq____”) Id. at 542 (Infant Doe regulations). The proposed rules were published on July 5, 1983 at 48 Fed.Reg. 30846. In contrast, HHS first requested access to the Infant Doe records by letter of December 22, 1982 and again by letter of April 1, 1983. See Exhibit C infra (Letter of April 1, 1983 from Betty Lou Dotson, Director, Office of Civil Rights to Mr. James R. Cummings, Director, Monroe County Department of Public Welfare). The April 1 letter demanded compliance with § 504 pursuant to “45 C.F.R. § 80.6(c), made applicable to 45 C.F.R. Part 84 by 45 C.F.R. § 84.61.” Id. at 2. 45 C.F.R. 84.61ff are the regulations which incorporated the procedural regulations of Title VI for purposes of § 504. The validity of 45 C.F.R. § 84.61ff has never been contested; to the contrary, it is quite clear that they are valid, since 504 was patterned after Title VI. Alexander v. Choate [469 U.S. 287], 105 S.Ct. 712, 716-17 n. 7, 718, n. 13, 722, n. 24 [83 L.Ed.2d 661] (1985), Consolidated Rail Corp. v. Darrone, [465 U.S. 624] 104 S.Ct. 1248, 1254-55 n. 16 [79 L.Ed.2d 568] (1984). In Darrone, the Supreme Court held “that [the] 1978 Amendments to the [Rehabilitation] Act were intended to codify the regulations enforcing 504.” Alexander, 105 S.Ct. at 722-23 n. 24. And, the regulations existing at the time of the 1978 amendments included 45 C.F.R. § 84.61. 42 Fed.Reg. 22677 (1977), 42 Fed.Reg. 22888 (1977). Thus, these records were obtained by HHS under procedural regulations which incorporated the procedures of Title VI, not under the Infant Doe regulations enjoined in AHA. Accordingly, even if the Supreme Court affirmed the decision in AHA, striking the Infant Doe regulations, the decision will have no effect on the records in this case. (Plaintiffs Supplemental Brief at 3-4; emphasis in original; footnote omitted.) The obvious problem with this argument is that it completely misses the point. The point underlying the Second Circuit’s decisions in American Hospital Ass’n and in University Hospital is that HHS lacks statutory authority to conduct investigations of Infant Doe-type incidents under Section 504 and to require compliance therewith. The particular, specific regulations under which HHS believed it had the authority to conduct such investigations, gather documents, and require compliance are wholly irrelevant to the issue of whether Congress intended to grant that authority under Section 504 in the first place. The Second Circuit squarely held that Congress did not. Thus, the Supreme Court cases plaintiff cites to support his argument that the regulations which incorporated the procedural regulations of Title VI for purposes of Section 504 have been upheld are irrelevant to whether HHS properly applied those procedural regulations to investigations within its authority under Section 504. Because the Second Circuit has held that HHS had no such authority, the form of the Infant Doe regulations, procedural or otherwise, does not matter. Indeed, plaintiff so conceded during oral argument requested by this Court specifically on this question: Now, your Honor, I concede that if the Supreme Court in Bowen vs. American Hospital Association was to broadly hold that Section 504 does not in any way apply to the medical treatment of handicapped newborns, then they could not obtain the records under Title [VI] procedural regulations or under the Infant Doe regulations, especially in the future. sk a}: 9k ‡ >jc If there was [a] broad' holding in the Bowen case, by the Supreme Court upholding, the Second Circuit Court of Appeals, that 504 does not in any respect apply to the handicapped infants, then, yes, it would be invalid for the Department to obtain records under the Infant Doe regulations or under the Title [VI] procedural regulations. (Transcript of Oral Argument, Feb. 3,1986, at 4-5, 7.) Second, plaintiff contends that the Second Circuit’s decisions can have no legal effect on this case because the injunction entered in American Hospital Ass’n, by which Judge Brieant declared that actions to regulate treatment in “currently pending investigations and other enforcement actions are declared invalid and unlawful,” did not enjoin either the investigation OCR undertook in this case, which is completed, or any enforcement proceeding relating to these Infant Doe records, which apparently is not contemplated. This argument is a red herring: no one has suggested that this Court would be violating Judge Breiant’s injunction by ordering production of the requested records in this case. Finally, the plaintiff argues that the Second Circuit’s decisions can have no legal effect on this case because the validity of the Infant Doe regulations does not affect the status of these records as “agency records” under FOIA. Plaintiff contends that the term “agency records” under FOIA is construed by courts to mean records within the possession, custody, or control of the agency. See, e.g., Kissinger v. Reporters Committee For Freedom of the Press, 445 U.S. 136, 100 S.Ct. 960, 63 L.Ed.2d 267 (1980). Because there is no question that these records are in the possession, custody, and control of OCR, plaintiff contends they are “agency records” within the meaning of FOIA. The government does not dispute this contention; surprisingly enough, the government agrees with plaintiff. (Transcript of Oral Argument, Feb. 3, 1986, at 12.) This Court cannot agree. The Court finds the notion that every member of the public may have access to otherwise unobtainable records through the vehicle of a FOIA request to a governmental agency that had no legal authority to obtain the records in the first place to be abhorrent. Plaintiff admits that he has been unable to locate any case addressing whether records obtained by an agency under regulations later declared invalid are “agency records” subject to disclosure under FOIA. This Court too has not located such a case. But the plaintiff leaps to the conclusion, without analysis, that the only relevant considerations are whether the records are in the “possession, control, or custody” of the agency. (Plaintiff’s Supplemental Brief at 9-10.) The mere fact that no court has either been confronted with or focused upon the question before; however, is no excuse to evade careful analysis when the facts mandate that the question be reached. Because this issue apparently is one of first impression, this Court recognizes that it must proceed carefully. FOIA itself does not define the phrase “agency records,” and the legislative history does not provide meaningful assistance on what sort of materials Congress intended FOIA to encompass. See, e.g., Kissinger, 445 U.S. at 151, 100 S.Ct. at 968; Forsham v. Harris, 445 U.S. 169, 100 S.Ct. 977, 63 L.Ed.2d 293 (1980); McGehee v. C.I.A., 697 F.2d 1095, 1106 (D.C.Cir.1983), modified on other grounds, 711 F.2d 1076 (D.C.Cir.1983). Consequently, plaintiff is correct when he asserts that courts have generally focused on whether the record is in the “possession, control, or custody” of the agency. In Kissinger, the Supreme Court held that if a document has been transferred to, and is in the possession of, a nonagency, an agency has no affirmative duty to institute a retrieval action when the documents are requested under FOIA, and the agency does not “improperly withhold” the records by refusing to institute such a retrieval action. 445 U.S. at 139, 100 S.Ct. at 963. Noting expressly that “agency possession or control is prerequisite to triggering any duties under the FOIA,” id. at 151, 100 S.Ct. at 968, the Court held that the mere physical location of records does not convert them into agency records if they were not controlled, generated, or used by the agency for any purpose. Id. at 157, 100 S.Ct. at 972. Similarly, in Forsham v. Harris, 445 U.S. 169, 100 S.Ct. 977, 63 L.Ed.2d 293 (1980), the Court held that written data which have not been “obtained” by a federal agency, but are generated, owned, and possessed by a privately controlled organization receiving federal study grants, are not “agency records.” Id. at 171, 100 S.Ct. at 980. Thus, “neither an agency’s access to documents (that is, its unexercised power to obtain them) nor even the agency’s physical custody of documents (not created by the agency) is' enough, in and of itself, to turn documents into agency records.” General Electric Co. v. United States Nuclear Regulatory Commission, 750 F.2d 1394, 1400 (7th Cir.1984). No federal case directly holds that before records may be considered “agency records” subject to disclosure under FOIA, they must have been obtained pursuant to the agency’s legal authority to áccess to those records. Nonetheless, there is language in Supreme Court cases that suggests the converse: i.e., that a federal right of access to records in and of itself does not necessarily render the records “agency records” under FOIA. See, e.g., Forsham, supra, 445 U.S. at 171, 185-86, 100 S.Ct. at 980, 986-87. The Forsham case, and every other case cited by the parties, rests on the implicit assumption that the records obtained by the agencies in those cases were obtained pursuant to legal authority to do so. Indeed, this assumption is implicit in FOIA itself because Congress could not have intended to expose to public scrutiny documents that the agency itself had no legal authority to examine. Congress set forth this assumption expressly in the Privacy Act, 5 U.S.C. § 552a(e)(l): (e) Agency requirements. — Each agency that maintains a system of records shall— (1) maintain in its records only such information about an individual as is relevant and necessary to accomplish a purpose of the agency required to be accomplished by statute or by executive order of the President____ (Emphasis supplied.) See also Clarkson v. Internal Revenue Service, 678 F.2d 1368, 1377 (11th Cir.1982) (Subsection (e)(1) “provides a general overall prohibition against the collection and maintenance of information which is irrelevant to the purposes of an agency.”) This Court hesitates to vest great weight on the Privacy Act both because it was passed subsequent to FOIA and because those statutes were informed by different congressional concerns. At bottom, FOIA is a disclosure statute, whereas the “purpose of the [Privacy Act] is to provide certain safeguards for an individual against an invasion of personal privacy by [establishing certain requirements for] Federal agencies____” Privacy Act of 1974, Pub.L. No. 93-579 § 2(b) (1974); Privacy Act Source Book at 501. However, the Privacy Act was enacted only 40 days after Congress had overridden President Ford’s veto of the 1974 FOIA amendments. Because of the absence of either a statutory definition of, or of legislative history on, the term “agency records” in FOIA, and because Congress considered and passed both the 1974 FOIA amendments and the Privacy Act virtually simultaneously, no better evidence than the Privacy Act and its legislative history exists that Congress did not intend agencies to maintain records and divulge them to the public unless authorized to do so by statute. The legislative history of Section 552a(e)(l) the Privacy Act demonstrates conclusively that Congress deemed the agency’s statutory authorization to collect and maintain records about an individual to be so important as to be of constitutional magnitude. The Senate Report on the Senate version of the statute that ultimately was enacted as Section 552a(e)(l) states: Subsection 201(a)(1). Provides that each Federal agency shall collect, solicit and maintain only such personal information as is relevant and necessary to accomplish a statutory purpose of the agency. This section, therefore, governs the first phase of the process which is the gathering of the information in the first place. The provision reaffirms the basic principles of good management and public administration by assuring that the kinds of information about people which an agency seeks to gather or solicit and the criteria in programs for investigating people are judged by an official at the highest level to be relevant to the needs of the agency as dictated by statute. Second, it requires a decision that the collection of information or investigation of people along certain information lines is necessary in that the needs of the agency and goals of the program cannot reasonably be met through alternative means. $ # , Sjt }¡C * $ This section is designed to assure observance of basic principles of privacy and due process by requiring that where an agency delves into an area of personal privacy in the course of meeting government’s needs, its actions may not be arbitrary, but rather, must be authorized, and found to be not only reasonable, but warranted by the overriding needs of society as the agency is responsible for administering to those needs. S.Rep. No. 93-1183, 93rd Cong., 2d Sess. 46-47 (1974) U.S.Code Cong. & Admin. News 1974, pp. 6916, 6961-6962, Privacy Act Source Book, supra, at 199-200 (emphasis supplied). This Court cannot condone a construction of the term “agency records” in FOIA that flies in the face of Congress’s mandate in the Privacy Act “to assure observance of basic principles of privacy and due process” by requiring that agency record collection and maintenance be authorized “by statute or by executive order of the President.” 5 U.S.C. § 552a(e)(l). In response, plaintiff first points to the obvious: FOIA’s exemptions are “explicitly made exclusive.” Environmental Protection Agency v. Mink, 410 U.S. 73, 79, 93 S.Ct. 827, 832, 35 L.Ed.2d 119 (1973). That response begs the question. If a record is not an “agency record” within the scope of FOIA in the first instance, the question of whether it also falls within the nine, narrowly construed Statutory exemptions never arises. Without citation to any authority, plaintiff contends secondly: How the agency obtains the records is immaterial. Indeed, if the CIA or any other agency notoriously stole records, it is inconceivable that they would not be subject to FOIA merely for that reason. Unless one of the nine exemptions applied, the public interest in disclosure might be even greater. Certainly, the interest of the public in “knowing what their government is doing” would be just as high. This is why withholding has been limited to the nine exemptions. (Plaintiff’s Supplemental Brief at 7.) Certainly, one of the purposes of FOIA is the underlying public interest in knowing what the government is doing. But that interest is served in and of itself by the Vaughn index which the government must prepare under Vaughn v. Rosen, supra, whenever it decides not to disclose documents under FOIA. The government must describe the document generally and list the reason for nondisclosure in the Vaughn index. At the oral argument held before this Court on February 3, 1986, neither the government nor plaintiff could adequately explain why they believed that the public’s interest in knowing how its government works is not protected satisfactorily by the government’s admission in a Vaughn index that the documents are not disclosable because they were obtained without authority or illegally. (Transcript of Oral Argument, Feb. 3, 1986, at 35-43.) The very example cited by the plaintiff illustrates the logic of the conclusion that the Vaughn index does in fact satisfy the public’s interest in knowing what the government is doing. If a governmental agency obtains records illegally, for example through theft, the public need know only that fact and the general nature and extent of the records stolen. The content of those records is not necessarily subject to public disclosure. An immediate illustration comes to mind. During the Watergate era, members of the “Plumbers” unit broke into the office of Daniel Ellsberg’s psychiatrist and stole his file on Ellsberg. Surely, Ellsberg’s psychiatric file, subsequently in the possession, custody, and control of the government, could not be disclosed to every member of the public merely because of those circumstances. The manner in which those records were obtained clearly is relevant to whether they properly were “agency records.” The public’s interest in knowing how its government works is satisfied to the extent necessary by the government’s admission in a Vaughn index that the documents were obtained only because they were stolen, an admission which no governmental agency would make lightly and which, by its very serious nature, suggests its truth. Of course, this conclusion applies only to documents which were generated elsewhere and which the federal governmental agency in question obtained without legal authority. It does not apply to documents which the governmental agency itself generates during the course of carrying out its functions. This case is illustrative. Documents 1, 2, and 3 originated at the Bloomington Hospital (i.e. Infant Doe’s medical records) or at the MCDPW (i.e., the report to the Monroe County Circuit Court from the Director of the MCDPW and the roster of the members of the Child Protection Team). Only document 4, the OCR’s draft of the Investigative Report, was generated by OCR itself. Although the public has a clearly protected governmental oversight interest in having access to reports generated by governmental agencies during the course of an investigation, the plaintiff has given no reason why the public should have access to records that otherwise would be barred to it merely because the federal government has undertaken an unauthorized and illegal course of action to obtain those records. When asked at oral argument why the public should now have access through a FOIA request to medical records of Infant Doe that are normally kept strictly confidential and why a Vaughn index disclosing that the records were obtained illegally would not suffice, plaintiff’s response was: Because, number one, the interest of the public is the information in the records, not whether the Government believes that it has them illegally or legally. The public information is what is in the record. And, secondly, FOIA was enacted so that Governmental explanations about what it’s doing isn’t the final answer. FOIA was enacted so that the public gets beyond what the Government says about what it is doing. And if the Government in a Vaughn Index was to say, well, we received these illegally, or it’s not in the public’s interest to know about this, FOIA is enacted for the public to get behind those statements and to know for itself what the Government is doing. If FOIA is intended to allow the public to know what the Government is doing, to allow the Government to respond in some vague, categorical answer, or to say that it’s not within the public’s interest is to, in fact, subvert the entire intention of FOIA. And so for the Government to say that these records were obtained illegally doesn’t satisfy the public’s right to know what the records, in fact, are. (Transcript of Oral Argument, Feb. 3,1986, at 36-37.) That response merely assumes the answer: to say that “the interest of the public is the information in the records” is to assume that the public has a right to the records themselves, regardless, of how they were obtained. But that precisely is the question: why should the public have access to documents illegally obtained solely because those documents are now. in the possession, custody, and control of the agency? Does not the very act of disclosure to the public of documents which never would have been in the public domain but for the illegal act of government compound that illegality? This Court holds that “agency records” do not include records obtained by a governmental agency without legal authority, express or implied, to do so. However, records which originate within the agency itself and which are generated by the agency, even during the course of an illegal investigation, are “agency records” within the scope of FOIA and are disclosable to the public unless a FOIA exemption applies. Of course, portions of government-generated reports that divulge information obtained from illegally acquired reports could not be disclosed because such disclosure would circumvent the rationale for not disclosing the illegally acquired reports themselves. Under this analysis, therefore, documents 1, 2, and 3 are not “agency records” and are non-disclosable under FOIA, but portions of the draft investigative report, document 4, are subject to disclosure, although a FOIA exemption may nonetheless preclude disclosure. This Court hesitates, however, to rest its analysis on this holding alone for two reasons. First, as noted above, this is an issue of first impression; it is an issue which is not adequately informed by FOIA’s legislative history; and it is an issue which, despite the Court’s request, has not been thoroughly and adequately briefed and argued by the parties. Second, the government has raised the interesting twist that, in this case, the government believed in good faith that it was authorized by the Rehabilitation Act of 1973 to conduct the Infant Doe investigation, and the Supreme Court may yet rule that the government did have such authority. The government apparently argues that when the government believes in good faith that it was authorized by statute to conduct an investigation and to obtain documents, those documents should be considered “agency records” within the scope of FOIA. This Court is not convinced that the government’s good faith belief should make any difference except that such a belief obviously would affect the reason for non-disclosure claimed in the Vaughn index. Here, the government claimed specific FOIA exemptions as reasons for nondisclosure and continues to argue the applicability of those exemptions forcefully in its briefs in this Court. Accordingly, the Court will analyze each of those claimed exemptions in the context of an alternative holding in this case. I. Exemption 7(A) Exemption 7(A) of FOIA protects “investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would ... interfere with enforcement proceedings....” 5 U.S.C. § 552(b)(7)(A). The government contends that the medical records of Infant Doe, the roster of the Child Protection Team, and the report of the MCDPW to the Circuit Court of Monroe County, Indiana are all investigatory records of this nature. “Investigatory records” are records compiled as part of an inquiry into specific suspected violations of the law, not records generated pursuant to “routine administration, surveillance or oversight of Federal programs.” Goldschmidt v. United States Department of Agriculture, 557 F.Supp. 274, 276 (D.D.C.1983); see also Center for National Policy Review on Race and Urban Issues v. Weinberger, 502 F.2d 370, 373 (D.C.Cir.1974); Gregory v. Federal Deposit Insurance Corp., 470 F.Supp. 1329, 1333-34 (D.D.C.1979), rev’d on other grounds, 631 F.2d 896 (D.C.Cir.1980). Assuming that OCR is responsible for investigating possible discrimination against the handicapped in violation of Section 504 of the Rehabilitation Act of 1973— an assumption which the Second Circuit has held to be invalid and which is currently being considered by the Supreme Court — the government argues that documents 1-3 satisfy the threshold test of Exemption 7(A): i.e., that they are each law enforcement investigatory records whose release would interfere with enforcement proceedings. Production of these records would interfere with enforcement proceedings by discouraging the prompt cooperation of institutions that is crucial for investigating the withholding of medical care from handicapped infants. “Infant-Doe-type” investigations require immediate OCR access to sensitive and confidential records under especially difficult circumstances. To meet that need, OCR depends on the voluntary cooperation of hospitals and institutions maintaining the relevant records; the price of that cooperation has been OCR’s guarantee that the records obtained will remain confidential to the extent allowed by law. Voluntary cooperation is crucial to those investigations because OCR has no power to subpoena records. Consequently, OCR’s regulations guarantee the confidentiality of records it obtains, especially medical records: Information of a confidential nature obtained in connection with compliance^] evaluation or enforcement shall not be disclosed except where necessary in formal enforcement proceedings or where otherwise required by law. 45 C.F.R. § 80.6(c). According to the government, this guarantee was especially crucial in this case because of the intense publicity it received. OCR needed the cooperation of the local child protection agency, the MCDPW, which was itself a target of the investigation. The government concludes that ordering release of these records would undermine OCR’s ability to obtain necessary records in such investigations in the future, especially where a threat to life mandates rapid investigation. Plaintiff in essence accepts the government’s factual contentions as to the necessity for quick, voluntary compliance and as to the adverse effect disclosure of confidential medical records and other documents would have on future Infant Doe investigations and enforcement proceedings. Plaintiff contends, however, that the protection of Exemption 7(A) is limited to records whose disclosure would interfere with a pending enforcement proceeding involving those records and not to its effect on future proceedings. In support of this contention, plaintiff relies heavily on the legislative history of the 1974 amendments to FOIA and on the subsequent case law, particularly the Supreme Court’s decision in N.L.R.B. v. Robbins Tire & Rubber Co., 437 U.S. 214, 98 S.Ct. 2311, 57 L.Ed.2d 159 (1978). In that case, the records at issue were statements of “witnesses whose prior statements would, under the [NLRB]’s own rules, be disclosed to [the plaintiff] following the witnesses’ [unfair labor practice] hearing testimony.” Robbins Tire, supra, 437 U.S. 214, 218, 98 S.Ct. 2311, 2315, 57 L.Ed.2d 159 (1978). The Court held that such statements were exempt from disclosure under Exemption 7(A) prior to the unfair labor practice hearing and that the NLRB need not make a particularized showing in each case that disclosure of particular witness’ statements would interfere with pending enforcement proceedings. Although language exists in the Court’s opinion and in the legislative history both to support the plaintiff’s argument that Exemption 7(A) is unavailable if no enforcement proceeding involving the documents in question is pending or contemplated and to support the government’s contrary position, this Court finds the government’s contention that Exemption 7(A) applies when the government can demonstrate specific and substantial harm to future enforcement proceedings to be more reasonable for several reasons. First, the Court agrees with the government that: Not only does Robbins Tire lack any holding restricting Exemption 7(A) to interference with pending proceedings, but the logic of the decision actually supports applying the exemption to future interference. There were several bases for the Supreme Court’s holding that Exemption 7(A) covers witness statements in NLRB proceedings. While some focused on harms that would result in the instant, pending, proceeding, another basis for the holding was that the NLRB had to give the limited assurance of confidentiality in order to induce witnesses to cooperate. Id. [437 U.S.] at 240-41 [98 S.Ct. at 2325-26]. This part of the rationale is directed primarily at future cases — if the NLRB violates the assurances, it will have a chilling effect on witnesses in future cases. (Defendants’ Reply Brief at 9-10; emphasis in original; footnotes omitted.) Although plaintiff had several opportunities to respond to this contention both in the briefs and during oral argument, he did not do so except to argue that the only “chilling effect” at stake in Robbins was to the NLRB’s pending case — an unfair labor practice hearing. (Plaintiff’s Memorandum in Response to Defendants’ Second Supplemental Memorandum Regarding the Applicability of Van Bourg, Allen, Weinberg & Roger v. NLRB, 751 F.2d 982 (9th Cir.1985) at 8-9.) But the Supreme Court’s concerns about a possible chilling effect extended far beyond the pending unfair labor practice proceeding at issue, as the following language from the Court’s opinion demonstrates: Since the vast majority of the Board’s unfair labor practice proceedings are resolved short of hearing, without any need to disclose witness statements, those currently giving statements to Board investigators can have some assurancé that in most instances their statements will not be made public (at least until after the investigation and any adjudication is complete). The possibility that a FOIA-induced change in the Board’s prehearin