Weisberg v. United States Dept. of Justice, Civ. A. No. 77-226.

• Decision Date: 05 October 1977
• Docket Number: Civ. A. No. 77-226.
• Citation: 438 F. Supp. 492
• Parties: Harold WEISBERG, Plaintiff, v. U. S. DEPARTMENT OF JUSTICE et al., Defendants.
• Court: U.S. District Court — District of Columbia

438 F. Supp. 492

Harold WEISBERG, Plaintiff, v. U. S. DEPARTMENT OF JUSTICE et al., Defendants.

Civ. A. No. 77-226.

United States District Court, District of Columbia, Civil Division.

October 5, 1977.

James Hiram Lesar, Washington, D. C., for plaintiff.

Michael J. Ryan, Asst. U.S. Atty., Washington, D. C., for defendants.

MEMORANDUM OPINION

JOHN H. PRATT, District Judge.

This matter is before the Court on defendants' motion for summary judgment. Plaintiff has brought suit under the Freedom of Information Act ("FOIA") to obtain materials relating to scientific and ballistics tests alleged to have been performed on items of evidence in the assassination of President John F. Kennedy. 5 U.S.C. § 552(b)(7) (Supp. V 1975). The defendants are the United States Department of Justice, to which plaintiff has directed his requests for laboratory records of the Federal Bureau of Investigation, and the United States Energy Research and Development Administration ("ERDA"), to which plaintiff has directed requests for records of the Atomic Energy Commission ("AEC"), ERDA's predecessor agency.¹

Although the Government's submissions to the plaintiff have been voluminous, plaintiff maintains that much of what he has received was unsought, and that much of what he has sought has not been tendered to him. The Government's position, on the other hand, remains, first, that it has complied fully with plaintiff's requests as to materials extant, and second, that it cannot possibly comply with the remaining requests because the materials sought do not exist.

In moving for summary judgment, the Government bears the burden of demonstrating that no genuine issue of material fact impedes its right to judgment as a matter of law. Fed.R.Civ.P. 56(c); Bloomgarden v. Coyer, 156 U.S.App.D.C. 109, 116, 479 F.2d 201, 208 (1973). Although mere assertions in the pleadings will not suffice to defeat a motion for summary judgment, Dewey v. Clark, 86 U.S.App.D.C. 137, 141, 180 F.2d 766, 770 (1950), matters of fact are to be viewed in the light most favorable to the party opposing the motion. Nyhus v. Travel Management Corp., 151 U.S.App. D.C. 269, 271, 466 F.2d 440, 442 (1972); Semaan v. Mumford, 118 U.S.App.D.C. 282, 283, 335 F.2d 704, 705 n. 2 (1964).

I. BACKGROUND OF THE ACTION.

Plaintiff's initial quest for scientific investigatory data related to the assassination of President Kennedy was frustrated in the courts on the ground that the data sought lay within the purview of FOIA exemption seven, covering investigative matter. Weisberg v. United States Department of Justice, 160 U.S.App.D.C. 71, 489 F.2d 1195 (1973) (en banc), cert. denied, 416 U.S. 993, 94 S.Ct. 2405, 40 L.Ed.2d 772 (1974); see Act of June 5, 1967, Pub.L.No.90-23, § 1, 81 Stat. 54 (current version of 5 U.S.C. § 552(b)(7) (Supp. V 1975)). Congress subsequently narrowed the scope of exemption seven, and plaintiff renewed his requests. Act of Nov. 21, 1974, Pub.L.No.93-502, § 2, 88 Stat. 1563, amending 5 U.S.C. § 552(b)(7) (1970). On July 15, 1975, this Court dismissed the action as moot, and plaintiff took an appeal. A panel of the United States Court of Appeals for the District of Columbia Circuit reversed, and remanded for further proceedings. Weisberg v. United States Department of Justice, 177 U.S. App.D.C. 161, 543 F.2d 308 (1976). The Court of Appeals identified five categories of investigative tests as to which plaintiff had made demands "which raise material factual questions still in dispute." Id. at 163, 543 F.2d at 310. As the Court of Appeals noted, however, there remain other categories of tests, such as the microscopic examinations performed on certain items of evidence, as to which plaintiff asserts his requests have not evoked satisfactory response. Id. at 164, 543 F.2d at 311. These categories, as well as the five enumerated in in the Court of Appeals opinion, must figure in consideration of the motion for summary judgment. In addition to identifying several of the factual areas to be explored on remand, the Court of Appeals specified an exploratory technique, namely the taking of the testimony, by deposition or otherwise, with an opportunity for cross-examination in any case, of the individuals who actually conducted the tests, the results of which plaintiff has requested. Id. at 163, 164, 543 F.2d at 310, 311.

In February and March, 1977, plaintiff took the depositions of four former and present employees of the Federal Bureau of Investigation laboratory, all of whom worked directly with evidence associated with the assassination. The four are Robert A. Frazier, employed as a special agent in the laboratory's firearms and toolmarks unit during the investigation of the assassination, and retired from the FBI as of April 1975; John F. Gallagher, assigned to the laboratory's spectrographic unit during the investigation, and retired as of January 1975; Lyndal L. Shaneyfelt, assigned as a documents examiner and photographic specialists for the laboratory between 1955 and 1975, when he retired from the Bureau; and Cortlandt Cunningham, formerly a special agent supervisor in the firearms and toolmarks unit during the investigation, and presently chief of the unit. Frazier and Cunningham were deposed February 24, 1977, and Gallagher and Shaneyfelt were deposed March 28, 1977. At each deposition save that of former Special Agent Gallagher, examination was by plaintiff's counsel only, with occasionally interposed objections from counsel for the defendants. At a hearing March 30, 1977, counsel for plaintiff indicated that no further depositions of FBI employees who had participated in the Bureau's investigation were planned.²Weisberg v. United States Department of Justice, No. 75-226, Tr. at 4 (D.D.C. March 30, 1977). These representations controvert the suggestion in an affidavit of the plaintiff that "this Court refused me the depositions my counsel and I consider necessary to meet what I regard as the mandate of the court of appeals . ." Affidavit of Harold Weisberg ¶ 165, at 34 (July 28, 1977) hereinafter "Weisberg Affidavit". Read broadly, the mandate of the Court of Appeals was to resolve whether the data sought exist on "the basis of the best available evidence, i. e., the witnesses who had personal knowledge of events at the time the investigation was made." 177 U.S.App.D.C. at 164, 543 F.2d at 311. Plaintiff has not sought to depose any such witness other than the four whose depositions were taken. To borrow the metaphor employed by the Court of Appeals in its opinion above, the legal engine of cross-examination has done its work on plaintiff's behalf with respect to witnesses with direct knowledge of the FBI investigation into the President's assassination. 177 U.S.App.D.C. at 164, 543 F.2d at 311. The issue devolves to what the evidence adduced in the four depositions establishes, and thence to whether there now remains a genuine issue as to whether the Government has complied with the strictures of the FOIA.

II. THE EVIDENCE ADDUCED.

The testimony of all four deponents related not only to specific pieces of assassination evidence and the tests performed, or not performed, upon them, but also to the procedures, and occasionally lack of procedures, employed in those sections of the FBI laboratory with which the deponents were familiar. These laboratory procedures bear significantly on the question whether much of the material plaintiff seeks exists.

Laboratory Procedures. The laboratory's Scientific Analysis Section, was known at the time of the investigation as the Physics and Chemistry Section; then, as now, the section comprised several disparate units, including the firearms and toolmarks unit, and the spectrographic unit, which in 1963-64 was responsible for both emissions spectrography and neutron activation analysis. Cunningham Deposition, at 4-5. During the investigation of the Presidential assassination, investigating agencies in the field — the Dallas Police Department, the Secret Service, and the FBI — forwarded the evidence to the FBI laboratory, in some instances directly to the firearms and toolmarks unit. Frazier Deposition, at 5, 7-8; Cunningham Deposition, at 8. Ordinarily, the evidence would be accompanied by a statement of the matters sought to be ascertained through laboratory testing, as, for example, the presence of gunpowder on a piece of evidence. Frazier Deposition, at 6, 8. The decision as to the specific tests to be conducted, however, was made within the laboratory. Id. at 8-9; Cunningham Deposition, at 8-9; Gallagher Deposition, at 26-27. The decisionmaking process as to which tests would be appropriate apparently was highly informal: in some cases, Frazier, the laboratory examiner with direct responsibility for the Physics and Chemistry Section's efforts in the investigation, conferred with his superiors on the tests to be performed, Cunningham Deposition, at 8-9, and in others, he and the individual examiners who would conduct the tests conferred on which tests to perform. Frazier Deposition, at 8; Gallagher Deposition, at 27. In still other instances, if the individual examiner determined that tests outside his domain were called for, he and his supervisor (Frazier, in most cases) would approach examiners in the other units with jurisdiction over the requisite type of testing. Cunningham Deposition, at 10; Frazier Deposition, at 8-9; Shaneyfelt Deposition, at 14. Only rarely were these conferences on tests to be performed recorded in communications between the conferees, or in notes made by one of them. Cunningham Deposition, at 10; Frazier Deposition, at 8-9; Gallagher Deposition, at 27-28.

The tests determined to be appropriate for a given item of physical evidence typically were conducted by examiners working individually, or under the direct supervision of the individual examiner. Cunningham Deposition, at 10; Frazier Deposition, at 10. Three examiners in the firearms and toolmarks unit collaborated on the...