181 F.3d 279 (2nd Cir. 1999), 98-6035, Halpern v FBI

Docket Nº:Docket No. 98-6035
Citation:181 F.3d 279
Case Date:June 22, 1999
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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181 F.3d 279 (2nd Cir. 1999)

ERIC B. HALPERN, Dr., Plaintiff-Appellant,




Docket No. 98-6035

United States Court of Appeals, Second Circuit

June 22, 1999

Argued: October 5, 1998

Plaintiff Eric B. Halpern appeals from a judgment entered on January 26, 1998 in the United States District Court for the Western District of New York (Richard J. Arcara, J.), granting summary judgment against plaintiff's claim that the Federal Bureau of Investigation improperly withheld information responsive to plaintiff's request under the Freedom of Information Act, 5 U.S.C. §552 (1994).

Affirmed in part, reversed in part, and remanded.

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RALPH L. HALPERN, Buffalo, New York (Nicole C. Johnson, Jaeckle Fleischmann & Mugel, LLP, Buffalo, New York, of counsel), for Plaintiff-Appellant.

LYNN S. EDELMAN, Assistant United States Attorney, Buffalo, New York (Denise E. O'Donnell, United States Attorney, Western District of New York, Buffalo, New York, of counsel), for Defendant-Appellee.

Before: CARDAMONE, PARKER, and SACK, Circuit Judges

CARDAMONE, Circuit Judge:

This appeal requires us to reconcile conflicting public policy concerns embedded in the Freedom of Information Act, 5 U.S.C. §552 (1994) (FOIA). Plaintiff Dr. Eric B. Halpern (plaintiff or appellant), who asserted that the Federal Bureau of Investigation improperly withheld information he requested under the Freedom of Information Act, appeals from a judgment entered on January 26, 1998 in the United States District Court for the Western District of New York before Judge Richard J. Arcara, which granted summary judgment in favor of the government and denied appellant's motion for the same relief.

Enacted by Congress in 1966 as a revision of §3 of the Administrative Procedure Act, 5 U.S.C. §1002 (1964), FOIA is broadly intended to permit citizens access to information in the possession of the federal government that is unnecessarily sheltered from public view. It emphasizes a preference for the fullest possible agency disclosure of such information consistent with a responsible balancing of competing concerns included in nine categories of documents exempted from the Act's disclosure requirements. See United States Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 754-55 (1989).

The policy of full disclosure of all information not exempted serves the need for citizens to know what their government is up to and, generally, where the information

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sought sheds light on an executive agency's performance of its official duties, full access to the information serves FOIA's purposes. There is a certain tension in balancing the public interest in having the government operate in the sunshine against the interests set forth in the exemptions that may, by shielding disclosure of information, keep the public in the dark. See id. at 762. In resolving the conflict in this case, we must analyze two declarations furnished by the government to justify its refusal to disclose the information appellant sought. Under our precedents, such declarations are required to describe in reasonably specific terms the nature of the documents and the justification for nondisclosure. Although the author of one of the declarations wrote much, she said little; and she said nothing in particular that would justify withholding the documents the requester sought.

The records in question were compiled by the federal government while it surveilled the unionization of the meatpacking industry during the 1930s. The Federal Bureau of Investigation (FBI), desires to withhold portions of these voluminous records from Halpern under FOIA's exemptions from disclosure. Those exemptions, the discussion of which is the subject of this appeal, are national security, personal privacy, and confidentiality. To reconcile the noted incompatible policy concerns, we follow the path carved out by Congress in 1966: one that protects both interests as much as possible but places special emphasis on granting the fullest possible disclosure.


Plaintiff is a lecturer in American History at University College London, England. He is an expert on unionism in the American meatpacking industry and has published extensively on the subject, perhaps most notably in his recent book, Down on the Killing Floor (1997). (The book traces the history of Chicago's meatpacking industry for 50 years from 1904-54, with particular emphasis on race relations among the packinghouse workers in Chicago's Southside slaughterhouses.)

In connection with his ongoing research in this field, Dr. Halpern submitted written requests to the FBI in 1989 and 1990 asking for the release of those records that would reveal the government's surveillance of the meatpacking industry during the 20 years between 1933 and 1954. On February 21, 1989 he requested "FBI case files pertaining to the activities of Herbert and Jane March," information regarding various Communist activities, and files covering the principal packinghouse owners: Armour, Swift, Wilson, Roberts & Oake, P.D. Brennan, Reliable, Agar, Illinois Meat, and G.H. Hammond. See generally March v. Committee of Bar Examiners, 433 P.2d 191 (Cal. 1967) (discussing Herbert March's role in the unionization movement). Plaintiff's later requests asked for searches of specific FBI filing systems, as well as for information about Henry Johnson.

Pursuant to plaintiff's FOIA requests, the FBI conducted searches for the requested subjects in its Central Records System (CRS). Within the CRS, records are indexed by subject into two general categories: the "main" index and the "reference" index. A record is retrievable through the "main" index if the name of the requested individual, organization, or activity is the main subject of that file. By contrast, a record is retrievable through the "reference" index if the file contains no more than a mention or reference (also known as a cross-reference) to the requested individual, organization, or activity. Normally, the FBI will process a file appearing in this latter index only when the search of the CRS does not locate any files on the requested subject through the "main" index. Otherwise, the requester is merely advised of the existence of cross-references and asked whether he would like those cross-references processed as well.

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On several occasions between 1991 and 1993, the FBI released documents on the subjects of Halpern's FOIA requests as retrieved through the "main" index, but it withheld numerous pages either in whole or in part, citing national security, agency personnel rules and practices, personal privacy, and confidentiality interests. In most of its mailings, the FBI listed the main files it had uncovered and advised plaintiff that there were "additional references to the subjects of your FOIA requests in files relating to other individuals, organizations, events, or activities." In 1993, the FBI advised Halpern, "We will process these references if you now make a specific request for them," but Halpern failed to make such a request until February 15, 1995, nearly two years later.

The government further advised Halpern that additional information it had found pursuant to his requests was being withheld after consultation with other agencies from which the information had originated. One of these agencies, the United States Army Intelligence and Security Command (Army Intelligence), eventually declassified and released some of the information it had originally asked the FBI to have withheld from plaintiff. In late 1994 the FBI itself turned over an additional file on Herbert March - one previously misclassified by reason of a clerical error - and also released other information declassified pursuant to new guidelines issued by the United States Attorney General in October 1993. The total amount of material released to Halpern, including both the original releases and the later reclassifications, was 2400 pages, although many of those pages were partially or almost entirely redacted.

On January 10, 1994 plaintiff appealed to the Department of Justice Office of Legal Policy, Office of Information and Privacy for review of the FBI's refusals to turn over all the files he sought. His appeal focused on the failure to release "records generated, or documenting activities occurring, during the period 1930-39" and the redactions of information made by the FBI in material it had already released to him. On May 24, 1994 the Office of Information and Privacy largely affirmed the FBI's actions, while noting the FBI's intent eventually to process the "cross references pertaining to Herbert and Jane March."

On June 3, 1994 plaintiff filed an amended complaint in the Western District of New York before Judge Arcara, naming the U.S. Department of Justice as defendant and claiming that the information he sought under 5 U.S.C. §552(a)(4)(B) had been wrongfully withheld. The complaint sought preliminary and permanent injunctive relief against the continued withholding of the information encompassed by his original FOIA requests. In 1995 the FBI and plaintiff both moved for summary judgment. The district court, which had referred the matter to Magistrate Judge Leslie G. Foschio, granted the government's motion in January 1998 after adopting the findings of the magistrate judge. Judgment was entered in favor of the government on January 26, 1998. This appeal followed.


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