The FOUNDING CHURCH OF SCIENTOLOGY OF WASHINGTON, D. C. INC., Plaintiff,
v.
UNITED STATES MARSHALS SERVICE, et al., Defendants.
Civ. A. No. 80-1479.
United States District Court, District of Columbia.
Dec. 31, 1980.
In an action brought pursuant to the Freedom of Information Act, the District
Court, Norma Holloway Johnson, J., held that: (1) where report issued by
Federal Bureau of Investigation concerned investigation undertaken pursuant to
certain threats made against judge, who had valid interest in being able to
converse candidly with FBI about circumstances surrounding such and without
fear of subsequent public disclosure of the statements, and in view of fact
that FBI agents and others had legitimate privacy interest in preserving
secrecy of matters that could subject them to annoyance or harassment in either
their official or private lives, circumstances dictated protection of privacy
of investigation under Freedom of Information Act; (2) the report having been
compiled under circumstances from which assurances of confidentiality might be
reasonably inferred, the Act protected identities of the sources of information
as well as the information itself; and (3) affidavits were insufficient to
establish completeness of file search conducted by defendants in response to
request addressed to United States Marshal for the District of Columbia under
Freedom of Information Act.
Defendants' alternative motion for summary judgment granted in part; motion to
dismiss and alternative motion for summary judgment insofar as relating to
adequacy of file search denied without prejudice; defense motion for
protective order granted.
[1] RECORDS
Where report was compiled by Federal Bureau of Investigation acting in course
of criminal investigation for law enforcement purposes, court was required, for
purposes of suit under Freedom of Information Act, to ascertain whether there
was privacy interest involved, and, if so, to balance privacy interest against
public interest in disclosure. 5 U.S.C.A. s 552(b)(7)(C).
[2] RECORDS
Where report issued by Federal Bureau of Investigation concerned investigation
undertaken pursuant to certain threats made against judge, who had valid
interest in being able to converse candidly with FBI about circumstances
surrounding such and without fear of subsequent public disclosure of the
statements, and in view of fact that FBI agents and others had legitimate
privacy interest in preserving secrecy of matters that could subject them to
annoyance or harassment in either their official or private lives,
circumstances dictated protection of privacy of investigators under Freedom of
Information Act. 5 U.S.C.A. s 552(b)(7)(C).
[3] RECORDS
Where it had been found that report of Federal Bureau of Investigation was
protected from disclosure under Freedom of Information Act as an investigatory
record compiled for law enforcement purposes as to which there was privacy
interest involved and where report was compiled under circumstances from which
assurances of confidentiality might be reasonably inferred, the act protected
identities of the sources of information as well as the information itself.
5 U.S.C.A. s 552(b)(7)(C, D).
[4] RECORDS
Affidavits were insufficient to establish completeness of file search conducted
by defendants in response to request addressed to United States Marshal for the
District of Columbia under Freedom of Information Act. 5 U.S.C.A. s 552.
*152 George T. Volsky, Washington, D. C., for plaintiff.
Rebecca L. Ross, Asst. U. S. Atty., Washington, D. C., for defendants.
MEMORANDUM OPINION
NORMA HOLLOWAY JOHNSON, District Judge.
This matter is before the Court on the defendants' motion to dismiss or, in
the alternative, for summary judgment, and defendants' motion for protective
order. The plaintiff has filed oppositions to both motions.
This action was brought pursuant to the Freedom of Information Act, 5
U.S.C. s 552 (1976) (FOIA). By letter dated April 1, 1980, the plaintiff,
through one of its members, requested that the U.S. Marshal for the District of
Columbia provide it with all files, documents, memoranda, orders, or any other
records under the control of or located in the physical office of the United
States Marshals Service relating to the assignment of personnel to United
States District Court Judge Charles Richey, while he was presiding over
hearings in Los Angeles, California, in the case of United States v. Mary
Sue Hubbard, D.C., 493 F.Supp. 202, during July 1979. By letter dated May 14,
1980, the U.S. Marshals Service responded that it had conducted a search of its
files and could locate no documents pertaining to a personal security detail on
Judge Richey while he was presiding over the hearing of the aforementioned
case. The letter further stated that their records indicated that two deputies
from the District of Columbia office were assigned to the United States
Marshals Office for the Central District of California for a court security
detail, commencing July 1 and terminating July 23, 1979. The letter listed
three documents pertaining to the assignment, and stated that the documents
were exempt from disclosure pursuant to Exemption Two of the Freedom of
Information Act. On May 20, 1980, *153 the requester appealed the
defendants' denial of the requested documents. The appeal was not processed in
a timely fashion, and the plaintiff filed suit on June 13, 1980.
Subsequent to the initiation of this action, defendants conducted a second
search of their files, finding two additional documents potentially responsive
to plaintiff's request. One document which originated in the Federal Bureau of
Investigation was referred to that agency for analysis. In July 1980, the FBI
denied access to this document based on Exemptions 7(C) and 7(D) of the FOIA.
Contemporaneous with the filing of the motion to dismiss or, in the
alternative, for summary judgment, defendants released the three documents
which had been withheld from plaintiff pursuant to Exemption 2. Defendants
also released one of two documents discovered during the file search conducted
after the plaintiff filed suit. The defendants continue to withhold from the
plaintiff one document, a nine-page FBI Investigation Report which is
responsive to plaintiff's request, claiming that Exemptions 7(C) and 7(D) of
the FOIA authorize their nondisclosure of this document. However, defendants
have submitted the report to the Court for in camera inspection.
In support of their motion to dismiss or, in the alternative for summary
judgment, defendants have submitted four affidavits, three of which pertain to
the file searches conducted (Affidavits of Louis G. Villaescusa, Lawrence E.
Fischer and Werner R. Koehler). The fourth affidavit relates to the
applicability of Exemptions 7(C) and 7(D) to the withheld document (Affidavit
of John N. Phillips). Defendants assert that Exemption 7(C), which authorizes
the withholding of "investigatory records compiled for law enforcement purposes
but only to the extent that the production of such records would ... constitute
an unwarranted invasion of personal privacy", applies to the FBI report because
there is no doubt that it is an investigatory record compiled for law
enforcement purposes, and that since the report deals with an investigation
surrounding a threat to Judge Richey's life, disclosure of the report would
constitute an invasion of his privacy. Defendants argue that if Judge Richey's
interest in privacy is balanced against the public's very general interest in
disclosure of the document, it is clear that the document should be withheld in
its entirety. Further, defendants assert that portions of the document are
being withheld from the plaintiff because they contain the names and other
identifying data of third parties and confidential sources whose privacy is
entitled to protection.
Defendants claim that Exemption 7(D) of the FOIA, which permits an agency to
withhold "investigatory records compiled for law enforcement purposes but only
to the extent that the production of such records would ... disclose the
identity of a confidential source and, in the case of a record compiled by a
criminal law enforcement authority in the course of a criminal investigation,
or by an agency conducting a lawful national security intelligence
investigation, confidential information furnished only by the confidential
source", also applies to the FBI report, and is invoked to protect third
parties and sources who gave information to the FBI in the course of the
investigation.
The plaintiff opposes the defendants' motion to dismiss or, in the
alternative, for summary judgment on two different grounds. First, the
plaintiff asserts there is a genuine dispute as to the adequacy of the search
conducted by defendants for documents responsive to plaintiff's request.
Plaintiff has produced in the record of this case a document, which is
apparently responsive to the FOIA request, entitled "Operations Order, Special
Security for Federal Building, U.S. Courthouse, 312 N. Spring Street, Los
Angeles, California 90012". The document originated with the Federal
Protective Service and is addressed to the U.S. Marshal, among others. The
plaintiff claims it obtained this document not from defendants, but from the
originator, pursuant to a FOIA request. Thus, plaintiff argues that
defendants' failure to produce the document, or to explain why it was not
*154 uncovered during the defendants' search of their files, raises a
genuine issue as to the adequacy of the search conducted. Plaintiff further
contends that the fact the defendants found additional documents upon repeated
searches raises the permissible inference that the searches were not thorough.
The plaintiff maintains, moreover, that the affidavits submitted by defendants
in support of their motion are totally inadequate and fail to meet the
standards for agency affidavits as set forth in Weisberg v. United States
Department of Justice, 200 U.S.App.D.C. 312, 627 F.2d 365 (1980). Thus, the
plaintiff contends that summary judgment must be denied because the defendants
have failed to demonstrate the absence of disputed facts.
The plaintiff also opposes the defendants' claim that Exemptions 7(C) and 7(D)
of the FOIA are applicable to the FBI report which is withheld from the
plaintiff. The plaintiff contends that defendants have failed to establish
that the report was compiled for law enforcement purposes, that there are
legitimate privacy interests at stake, or that the public interest in the
report is outweighed by any privacy interests that may exist. The plaintiff
further asserts that defendants have not made the requisite showing, pursuant
to Exemption 7(D), that the information contained in the FBI report was
received from sources external to the agency, that the information is
confidential and that the agency promised to keep the information in
confidence.
The defendants have replied to the plaintiff's opposition to their motion
maintaining that the search conducted pursuant to the FOIA request was thorough
and complete and within the scope of the request, and that the affidavits
submitted on this issue are sufficient to establish that the search was
adequate.
Upon consideration of the defendants' motion to dismiss or, in the
alternative, for summary judgment, the plaintiff's opposition thereto, the
entire record before the Court and upon in camera review of the FBI
Investigation Report, the Court finds that the defendants have properly invoked
Exemption 7(C) and 7(D) of the FOIA as to the FBI report, and the Court upholds
the defendants' nondisclosure of the report to the plaintiff. Accordingly, the
Court will grant summary judgment in favor of defendants on this issue.
However, the Court further finds that defendants have not demonstrated the
absence of disputed facts as to the adequacy of the search of their files
conducted in response to plaintiff's FOIA request, and the Court will deny
summary judgment on this point.
(1, 2) Upon in camera review of the FBI Investigation Report the Court finds
that the Federal Bureau of Investigation is a criminal law enforcement
authority and that the report at issue was compiled by the FBI acting in the
course of a criminal investigation for law enforcement purposes [FN*]. Thus,
the report is an investigatory record compiled for law enforcement purposes.
To ascertain whether Exemption 7(C) of the FOIA is validly asserted, the Court
must determine whether there is a privacy interest involved, and if so, balance
the privacy interest against the public interest in disclosure, Department
of the Air Force v. Rose, 425 U.S. 352, 370-73, 96 S.Ct. 1592, 1603-05, 48
L.Ed.2d 11 (1975). The Court finds there are legitimate privacy interests
involved in this matter. The entire report concerns an investigation
undertaken pursuant to certain threats made against Judge Richey, who has a
valid interest in being able to converse candidly with the FBI about the
circumstances surrounding the threats and without fear of subsequent public
disclosure of his statements. Also, the FBI agents and others who investigated
the matter have a legitimate privacy interest in preserving the secrecy of
matters that could subject them to annoyance or harassment in either their
official or private lives. Lesar v. United States Department of Justice,
636 F.2d 472, at 487 (D.C.Cir., 1980), slip opinion *155 at 29. The
circumstances present in this matter dictate the protection of the privacy of
the investigators. Furthermore, witnesses and others who provided information
to the FBI have a valid concern for their privacy and should be free from
anxiety that their names or other information by which they can be identified
will be revealed to the public solely by virtue of their cooperation with law
enforcement officials. The Court is persuaded by its in camera review of the
FBI report, and by the affidavit submitted by defendants that there are
legitimate personal privacy interests involved in the report. The Court is not
persuaded by plaintiff's characterizations of the public interest in disclosure
of the report. The Court does acknowledge that under certain circumstances the
public is concerned about the conduct of the Federal Judiciary and events that
may affect that conduct. However, the information contained in the FBI report
is not of the type in which the plaintiff contends the public has an interest.
Therefore, on balancing the privacy interests of the individuals against the
public interest in disclosure, the Court finds the privacy interests far
outweigh the public interest in this instance. The Court concludes as a matter
of law that the FBI Investigation Report is an investigatory record compiled
for law enforcement purposes, the disclosure of which would constitute an
unwarranted invasion of personal privacy. The Court has carefully considered
whether the report contains any reasonably segregable portions which can be
released to the plaintiff. While the Court cannot now reveal the nature of the
information contained in the report without risking harm to the privacy
interests it has determined are entitled to protection, the Court can state
that the information is so intertwined that to release portions of the report
could result in injury to those privacy interests. Concluding that the report
does not contain any reasonably segregable portions, the Court finds that
Exemption 7(C) of the FOIA applies to the report in its entirety.
FN* The investigation was instituted under 18 U.S.C. s 372, Conspiracy
to injure or impede an officer. (Affidavit of John N. Phillips).
(3) The Court also finds as a matter of fact, that a substantial portion of
the FBI Investigation Report consists of confidential information furnished
only by confidential sources. As a matter of law, since the report was
compiled by a law enforcement authority in the course of a criminal
investigation under circumstances from which assurances of confidentiality may
be reasonably inferred,[FN**] Exemption 7(D) of the FOIA protects the
identities of the sources of the information, as well as the information
itself. Church of Scientology v. U.S. Department of Justice, 410 F.Supp.
1297, 1302 (C.D.Cal.1976), cited in Duffin v. Carlson, 636 F.2d 709, at 712
(D.C.Cir., 1980).
FN** Church of Scientology v. U.S. Department of Justice, 410 F.Supp.
1297, 1302 (C.D.Cal.1976), quoting Committee on Government Operations &
Committee on the Judiciary, 94th Cong., 1st Sess., Freedom of Information
Act and Amendments of 1974 (P.L. 93-502, 88 Stat. 1561) at 230.
(4) The Court has carefully examined the affidavits submitted by defendants
in support of their claim that the search of their files was adequate. To
prevail on this issue the defendants must demonstrate there is no issue
respecting their assertion that all requested documents in their possession
have been uncovered. The defendants' affidavits fail to make this showing.
The Court of Appeals in this circuit has stated,
(I)n adjudicating the adequacy of the agency's identification and retrieval
efforts, the trial court may be warranted in relying upon agency affidavits,
for these are equally trustworthy when they aver that all documents have been
produced or are unidentifiable as when they aver that identified documents are
exempt. To justify that degree of confidence, however, supporting affidavits
must be relatively detailed and nonconclusory and must be submitted in good
faith. Even if these conditions are met the requester may nonetheless produce
countervailing evidence, and if the sufficiency of the agency's identification
or retrieval procedure is genuinely in issue, summary judgment is not in
order. Founding Church *156 of Scientology v. NSA, 197 U.S.App.D.C. 305,
317, 610 F.2d 824, 836 (1979) (citations omitted).
The recent decision in Weisberg v. United States Department of Justice, 200
U.S.App.D.C. 312, 627 F.2d 365 (1980) reflects the position in this circuit
regarding the requirements of agency affidavits on this issue. In Weisberg
the court rejected agency affidavits which did not denote which files were
searched or by whom, did not reflect any systematic approach to document
location and did not provide information specific enough to enable the
appellant to challenge the procedures utilized. Weisberg v. United States
Department of Justice, supra, 200 U.S.App.D.C. at 318, 627 F.2d at 371. The
court held that where the affidavit gave no detail as to the scope of the
examination, it was insufficient as a matter of law to establish the
completeness of the examination of the agency's files. Id. 200 U.S.App.D.C.
at 317, 627 F.2d at 370.
The affidavits of Louis G. Villaescusa, Lawrence E. Fischer, and Werner R.
Koehler are also insufficient to establish the completeness of the file search
conducted by defendants. They contain no indication of which files were
searched, by whom, and do not reflect any systematic approach to document
location. The affidavit contain conclusory statements and refer only generally
to searches conducted in various offices of the defendants. The Court is not
in a position to conduct a true de novo review of the adequacy of the search
made by defendants. Moreover, the plaintiff has succeeded in raising a genuine
issue as to the adequacy of the search, pointing out that successive searches
disclosed additional documents and the existence of one document that
presumably should have been discovered but was not. In light of these
circumstances, the defendants' motion to dismiss or, in the alternative for
summary judgment on this issue must be denied.
The defendants have filed a motion for protective order requesting that the
depositions of two agents of defendants not be taken until after plaintiff can
demonstrate a need for discovery. The defendants maintain in this motion that
discovery is unnecessary, at least until the Court rules upon their motion to
dismiss or, in the alternative, for summary judgment. The plaintiff opposes
the motion for protective order, contending that it has already shown there is
a factual controversy surrounding the adequacy of the file search, and that it
is entitled to discovery on this issue.
Upon consideration of the defendants' motion for protective order, the
plaintiff's opposition thereto, the entire record, and the decisions of this
Court as contained in this memorandum opinion, the defendants' motion for
protective order will be granted at this time. However, the defendants are to
file with the Court a detailed affidavit or affidavits which support(s) their
assertions that the search of their files conducted in response to plaintiff's
FOIA request was adequate. In the preparation of the affidavits defendants
should make note of the principles enumerated in this memorandum opinion.
Upon receipt of defendants' submission, and after the plaintiff has had an
opportunity to respond, the Court will again consider whether a factual issue
exists as to the adequacy of the search. If the Court finds the defendants'
submission to be so lacking in detail and insufficient, as a matter of law to
preclude dismissal or summary judgment, the Court will then allow the plaintiff
to conduct discovery the nature and scope of which will be determined at a
later date, when and if it becomes necessary and appropriate.
Orders consistent with this memorandum opinion shall be entered.