4 F.3d 1227 (3rd Cir. 1993), 91-5916, McDonnell v. United States

Docket Nº:Appellants at No. 91-5916.
Citation:4 F.3d 1227
Party Name:Robert J. McDONNELL; Frederick N. Rasmussen, Appellants at Nos. 91-5951 & 5993, v. UNITED STATES of America; Department of the Navy; Department of Justice, United States of America and Department of Justice,
Case Date:September 21, 1993
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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4 F.3d 1227 (3rd Cir. 1993)

Robert J. McDONNELL; Frederick N. Rasmussen, Appellants at

Nos. 91-5951 & 5993,


UNITED STATES of America; Department of the Navy;

Department of Justice,

United States of America and Department of Justice,

Appellants at No. 91-5916.

Nos. 91-5916, 91-5951 and 91-5993.

United States Court of Appeals, Third Circuit

September 21, 1993

Argued Aug. 19, 1992.

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Joseph J. Hillman, Jr. (argued), Belmar, NJ, for appellants Robert J. McDonnell and Frederick N. Rasmussen.

Stuart M. Gerson, Asst. Atty. Gen., Michael Chertoff, U.S. Atty., John F. Daly (argued), Leonard Schaitman, John P. Schnitker, U.S. Dept. of Justice, Civil Div., Appellate Staff, Washington, DC, for appellants U.S. and Dept. of Justice.

Before HUTCHINSON, COWEN and WEIS, Circuit Judges.


HUTCHINSON, Circuit Judge.

Appellants and cross-appellees Robert J. McDonnell and Frederick N. Rasmussen (collectively "Plaintiffs") 1 filed this action in the United States District Court for the District of New Jersey against appellees and cross-appellants the Department of the Navy ("Navy") and the Department of Justice ("DOJ") in its capacity as representative of the Federal Bureau of Investigation ("FBI") (collectively the "Government"). Plaintiffs seek disclosure under the Freedom of Information Act ("FOIA"), 5 U.S.C.A. Sec. 552 (West 1977 & Supp.1993), of certain information the Government has withheld concerning the 1934 Morro Castle disaster. The Morro Castle disaster occurred when a fire broke out on an ocean liner just off the coast of New Jersey on September 8, 1934. SeeUnited States v. Abbott, 89 F.2d 166, 166 (2d Cir.1937). Over one hundred deaths resulted. Strange circumstances surrounded the fire. Just hours prior to the fire the Captain of the ship died, and there was a delay of almost an hour between the outbreak of the fire and the sending of an SOS signal. Seeid. (overturning conviction of chief officer and engineer of ship for criminal negligence in operation of vessel); see generally Thomas Gallagher, Fire At Sea (1959) (concluding that fire on Morro Castle was deliberately set by ship's radio officer). Both Plaintiffs and the Government filed cross-motions for summary judgment. The district court granted each and denied each in part. All parties now appeal the portions of the district court's judgment adverse to their respective positions.

For the reasons that follow, we will affirm the order of the district court granting summary judgment to the Government under FOIA Exemptions 1 (matters relating to national security), 7(C) (records compiled for law enforcement purposes, disclosure of which would constitute an unwarranted invasion of personal privacy), and 7(D) (disclosure of identity of confidential sources or information they provide). 5 U.S.C.A. Sec. 552(B)(1), (7)(C), (7)(D). We will also affirm the district court's order granting summary judgment to the Government under Exemption 3 (matters specifically exempted

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from disclosure by statute) insofar as it permits the Government to withhold grand jury material, but we will reverse that order insofar as it permits the Government to withhold certain juvenile delinquency records requested by McDonnell. Id. Sec. 552(b)(3). We will vacate the portion of the district court's order granting summary judgment to the Government under Exemption 6 and remand for further factual development. We will also vacate the district court's order granting summary judgment to McDonnell under Exemption 7(D) and remand for reconsideration in light of United States Dep't of Justice v. Landano, --- U.S. ----, ---- - ----, 113 S.Ct. 2014, 2019-23, 124 L.Ed.2d 84 (1993). Finally, we will reverse the order of the district court granting summary judgment to McDonnell under Exemption 7(C).

I. Factual and Procedural History

Plaintiffs are authors who are interested in the events surrounding the fire aboard the ocean liner Morro Castle and its subsequent grounding off the coast of Asbury Park, New Jersey on September 8, 1934. The FBI conducted an investigation following this disaster under the special maritime jurisdiction of the United States, 18 U.S.C.A. Secs. 7, 13 (West 1969 & Supp.1993), in order to determine the cause of the fire and why so many lives were lost. A federal grand jury ultimately returned indictments against the owners and certain officers of the Morro Castle, charging them with willful neglect of duty under 18 U.S.C.A. Sec. 1115 (West 1984). SeeUnited States v. Abbott, 89 F.2d 166 (2d Cir.1937) (overturning conviction of chief officer and engineer for violation of statute).

In June 1985, Plaintiffs began their quest for information regarding the Morro Castle fire and its subsequent investigation. In their first correspondence with the Office of Congressional and Public Affairs, dated June 14, 1985, Plaintiffs requested, under the FOIA, records pertaining to the Morro Castle, George White Rogers, George Alagna, and the "Black Tom" explosion. On July 29, 1985, Plaintiffs expanded their original request to include John B. Duffy. On March 24, 1986, the FBI released 666 of 1,029 pages regarding the Morro Castle and specified the exemptions claimed for the withheld documents.

On March 31, 1986, Plaintiffs appealed the FBI's refusal to release the withheld documents. The FBI released additional documents regarding the Morro Castle on May 21, 1986. On June 3, 1986, it released documents concerning George White Rogers. On July 14, 1986, the Office of Information and Privacy ("OIP") advised Plaintiffs some additional records pertaining to deceased individuals in the Morro Castle file would be released, but the FBI's decision to withhold the remainder of the requested documents would be affirmed.

On August 18, 1986, Plaintiffs appealed the FBI's withholding of the remaining records containing information about George White Rogers. The OIP denied this appeal on October 9, 1986, and also informed Plaintiffs that the FBI would not release information regarding George Alagna until it received evidence of his death.

In the course of processing Plaintiffs' original June 1985 request, the FBI located three Navy documents. It sent two of these documents to the Naval Military Personnel Command ("NMPC") and the third to the Naval Investigative Service Command ("NISCOM") for evaluation. Lieutenant Commander Brian D. Robertson of the Judge Advocate General's Corps ("JAG Corps") reviewed the two documents sent to NMPC and determined that one document could be released in its entirety. Robertson included an unredacted copy of this document with a letter to Plaintiffs dated June 9, 1986, notifying them that the NMPC had received two documents from the FBI that were responsive to Plaintiffs' original FOIA request. This letter also advised Plaintiffs that Robertson had sent the second document to the Office of Naval Intelligence for classification review. After examining the document, the Deputy Director of Naval Intelligence advised NMPC that it was no longer classified. The second document was accordingly released to Plaintiffs in its entirety.

NISCOM reviewed the third document and ultimately released it to Plaintiffs with deletions made pursuant to 5 U.S.C.A. Sec. 552(b)(7)(C) (West 1977 & Supp.1993).

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Plaintiffs appealed this decision to the Secretary of the Navy on August 25, 1986. This appeal was denied.

Approximately one year later, Plaintiffs filed a separate request for information on George White Rogers, John B. Duffy, Admiral W.F. Halsey, and other matters directly with NISCOM. NISCOM's search for this information disclosed no relevant documents or files. Because Plaintiffs did not ask NISCOM to forward their request to other divisions of the Department of Navy, no further search was conducted.

On August 22, 1988, Plaintiffs filed a complaint in federal district court seeking disclosure under the FOIA of the requested information withheld by the Government. 2 Plaintiffs sought preliminary and permanent injunctions ordering the disclosure of the following information:

  1. The Navy records of George White Rogers.

  2. The Navy records concerning "the outcome of the [Oscar] Niger investigation."

  3. Information pertaining to Oscar Niger.

  4. A threatening letter allegedly written by George White Rogers to Admiral Halsey.

  5. Information withheld by the FBI pertaining to the Morro Castle, George Alagna, John B. Duffy, and the "Black Tom" file.

    Plaintiffs also requested legible copies of all released documents, and that the court perform an in camera inspection of the withheld and redacted documents in order to ascertain the propriety of nondisclosure based on the specific exemptions asserted by the Government.

    The Government filed an answer on November 4, 1988, generally denying Plaintiffs' claims and raising various defenses. In January 1989, Plaintiffs filed a motion for in camera inspection of the documents sought in the complaint. The Government responded that the motion was premature because it had not yet submitted its Vaughn index specifying the withheld documents and detailing the agency's justification for claiming exemption. SeePatterson by Patterson v. FBI, 893 F.2d 595, 599 n. 7 (3d Cir.), cert. denied, 498 U.S. 812, 111 S.Ct. 48, 112 L.Ed.2d 24 (1990) (citing 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)). For this reason, the magistrate judge denied Plaintiffs' motion without prejudice.

    On March 13, 1989, the Government filed its Vaughn index. It included the following proffers in support of the withheld documents: (1) the declaration of FBI Special Agent ("SA") William Earl Whaley regarding the material withheld...

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