41 F.3d 238 (6th Cir. 1994), 92-3962, Jones v. F.B.I.

Docket Nº:92-3962.
Citation:41 F.3d 238
Party Name:Harllel B. JONES, Plaintiff-Appellant, v. FEDERAL BUREAU OF INVESTIGATION, Defendant-Appellee.
Case Date:November 17, 1994
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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41 F.3d 238 (6th Cir. 1994)

Harllel B. JONES, Plaintiff-Appellant,

v.

FEDERAL BUREAU OF INVESTIGATION, Defendant-Appellee.

No. 92-3962.

United States Court of Appeals, Sixth Circuit

November 17, 1994

Argued Oct. 14, 1994.

Page 239

Richard L. Aynes (argued and briefed), Akron, OH, for plaintiff-appellant.

Leonard Schaitman, Robert M. Loeb, U.S. Dept. of Justice, Civ. Div., Appellate Staff, John F. Daly (briefed), U.S. Dept. of Justice, Elizabeth A. Pugh, David M. Souders, Malcolm L. Stewart (argued and briefed), U.S. Dept. of Justice, Civ. Div., Washington, DC, for defendant-appellee.

Before: MERRITT, Chief Judge; and CELEBREZZE and JONES, Circuit Judges.

MERRITT, Chief Judge.

Plaintiff Harllel Jones was the founder and leader of a group called "Afro Set" or the "Black Nationalist Party for Self Defense" in Cleveland in the 1960s and 1970s. Almost twenty years ago, Jones filed requests pursuant to the "Freedom of Information Act" (FOIA), 5 U.S.C. Sec. 552, seeking all documents pertaining to himself or Afro Set held by the defendant Federal Bureau of Investigation and the United States Secret Service. The FBI eventually located 2,936 responsive documents comprising 10,485 pages, primarily within four central FBI files and various corresponding Cleveland and Cincinnati field office files. The agency released 485 pages in their entirety; released 9,157 pages with

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portions redacted; and withheld 845 pages in their entirety.

In 1977, Jones filed suit in federal district court to compel release of the withheld material. 1 Eight different district judges were responsible for the case at different times over the course of fifteen years, 2 until in August 1992 Judge Matia entered an order granting summary judgment to the FBI. Jones appeals this order.

Because of its controversial historical background, as well as the long delays and enormous number of responsive documents, this is a particularly difficult case. Prior to judging the individual statutory exemptions claimed by the FBI to justify its withholdings, we must decide two important questions of FOIA law: first, under what circumstances a district court should look beyond the affidavits submitted by the defendant agency and examine responsive documents in unredacted form in camera; second, whether material responsive to a FOIA request may be withheld under any of the exemptions created by subsection (b)(7) of the FOIA statute if some of the underlying activities may not have conformed with legitimate law enforcement purposes.

I. Background

Beginning in 1965 and apparently continuing until 1977, Harllel Jones and Afro Set were targets of the FBI's Black Nationalist Counterintelligence Program (COINTELPRO). Seen in its best light, COINTELPRO was organized to gather information on violent individuals and groups, some of whom intended to overthrow our constitutional government. Seen in worse light, COINTELPRO targeted African-Americans of local and national prominence as part of organized resistance to their struggles to secure civil rights for all Americans. To illustrate, COINTELPRO's targets included both the Black Panther Party, whose membership included undeniably violent individuals, and the Rev. Dr. Martin Luther King, whose birthday we now celebrate as a national holiday. It is well known, for example, that the FBI expended considerable resources attempting to undermine the work of Dr. King by linking him to allegedly subversive organizations and by discovering details of his personal life. See Lesar v. U.S. Dep't of Justice, 636 F.2d 472, 487 (D.C.Cir.1980).

In 1976, the Senate Select Committee on Intelligence (the Church Committee) issued a report documenting systematic violations of civil rights by the FBI and other intelligence and security organizations. 3 COINTELPRO was among the operations discussed in the report, which quoted at length from an FBI internal memorandum describing COINTELPRO's goals. According to this memorandum, the FBI's goals were to "Prevent the coalition of militant black nationalist groups"; "Prevent the rise of a 'messiah' who could unify, and electrify, the militant black nationalist movement"; "Prevent violence on the part of black nationalist groups"; "Prevent militant black nationalist groups and leaders from gaining respectability "; and "Prevent the long-range growth of militant black nationalist organizations, especially among youth" (emphasis in original). The Church Committee characterized COINTELPRO as "a sophisticated vigilante operation aimed squarely at preventing the exercise of First Amendment rights[.]" Senate Report, Book III at 6. The Seventh Circuit stated that this memorandum is "damning evidence indicating the COINTELPRO was intended to do much more than simply 'prevent violence[.]' " Hampton v. Hanrahan, 600 F.2d 600, 608-09 (7th Cir.1979), rev'd in part on other grounds, 446 U.S. 754, 100 S.Ct. 1987, 64 L.Ed.2d 670 (1980). In his brief on appeal Jones cites numerous publications describing the misconduct of the FBI. There seems little doubt that under COINTELPRO the

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agency did not observe its duty to uphold the civil liberties of American citizens.

In August 1970 members of Afro Set shot two police officers in Cleveland, killing one. In March 1972, based primarily upon information supplied by a member of Afro Set who had become a confidential FBI informant, Jones was convicted in state court of second-degree murder and shooting with intent to kill or wound. The informant, a co-defendant and admitted triggerman, testified that Jones had ordered the members of Afro Set to shoot police officers and security guards at random in retaliation for the shooting of an Afro Set member by a security guard. In return, first-degree murder charges against the informant were dropped. In 1975, the same year he filed his FOIA requests, Jones filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254, asking that his conviction be vacated on the ground that the prosecution had failed to provide his counsel with either an exculpatory written statement of a co-indicted witness or the fact of the prosecution's agreement to drop charges against the main informant. The habeas court granted the writ in 1977 and Jones was freed. Jones v. Jago, 428 F.Supp. 405 (N.D. Ohio 1977), aff'd, 575 F.2d 1164 (6th Cir.), cert. denied, 439 U.S. 883, 99 S.Ct. 223, 58 L.Ed.2d 196 (1978). From the record before us, it appears that the documents he obtained through his FOIA requests helped Jones win his habeas case. The state failed in its attempt to have him re-imprisoned pending retrial and in 1978 the charges were dismissed.

II. Procedural History

The FBI justified its withholdings in this case under exemptions set forth in 5 U.S.C. Sec. 552(b). 4 Early in the case, Jones moved to require the FBI to submit a Vaughn index of the entire document set. A Vaughn index is a routine device through which the defendant agency describes the responsive documents withheld or redacted and indicates why the exemptions claimed apply to the withheld material. Vaughn v. Rosen, 484 F.2d 820, 826-27 (D.C.Cir.1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974). Jones's motion was denied as premature, and it is unclear to us why no significant action was taken in the case during the next five years.

In late 1982, the FBI moved for leave to employ a random sample to select a smaller group of representative documents, for which the agency would then produce a Vaughn index. Plaintiff renewed his motion to require defendants to file a complete index. The district court granted the FBI's motion on the ground that "[t]o require the defendant to produce a Vaughn index covering each and every page of the withheld documents would be an excessive burden at this stage of the proceedings." Order, April 14, 1983, at 3. The FBI submitted the sample in redacted form to the district court in March 1984 along with the declarations of Special Agents Walter Scheuplein, Jr., and Robert F. Peterson, two affidavits which together constituted the original Vaughn index in this case. These affidavits explained the agency's central records system, related the FBI's search for and collection of documents, described the preparation of the sample, and justified the exemptions claimed. Since the original sample included none of the fourteen documents with material withheld under Exemption 7(E), later in 1984 the FBI submitted these documents to the court with a second declaration from Agent Scheuplein. This brought the total number of documents before the court to 72. At the same time that he approved the use of the sample, Judge Bell also granted the FBI's motion for a protective order staying discovery. Order, April 14, 1983, at 4-5.

The FBI moved for summary judgment on the basis of the sample and affidavits. Plaintiff filed his own cross-motion for summary judgment, and the case remained on these motions for a number of years before being referred to a magistrate judge in early 1990.

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In June 1991 the magistrate recommended granting the FBI's motion for summary judgment, and in August 1992 Judge Matia so granted, holding that the affidavits and sample were sufficient information on which to base a finding and that on this basis the FBI had properly claimed the various exemptions at issue. Opinion and Order, Aug. 12, 1992.

III. Basis of Review

A district court reviews de novo an agency's decisions regarding a FOIA request. 5 U.S.C. Sec. 552(a)(4)(B). As this appeal is from a grant of summary judgment, our review is de novo as well. FOIA cases typically come up on appeal in this fashion, based on the defendant agency's Vaughn affidavits and before the plaintiff has had a chance to engage in discovery. This is a peculiar posture, difficult for our adversarial system to handle. The problem goes to the very nature of these actions as petitions for the...

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