Ferguson v. Kelly, 76 C 3898.

• Decision Date: 28 July 1978
• Docket Number: No. 76 C 3898.,76 C 3898.
• Citation: 455 F. Supp. 324
• Parties: A. F. FERGUSON, Plaintiff, v. Clarence KELLY, Federal Bureau of Investigation, Edward Levi and Department of Justice, Defendants.
• Court: U.S. District Court — Northern District of Illinois

455 F. Supp. 324

A. F. FERGUSON, Plaintiff, v. Clarence KELLY, Federal Bureau of Investigation, Edward Levi and Department of Justice, Defendants.

No. 76 C 3898.

United States District Court, N. D. Illinois, E. D.

July 28, 1978.

Arthur W. Friedman, of Devoe, Shadur & Krupp, Chicago, Ill., for plaintiff.

Antonio J. Curiel, Asst. U. S. Atty., Chicago, Ill., for defendants.

MEMORANDUM OPINION

GRADY, District Judge.

Plaintiff in this action filed October 21, 1976, sought the disclosure of documents by defendants pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 et seq. Plaintiff made a general request in May 1975 for information pertaining to him in the possession of the Federal Bureau of Investigation ("FBI"). In September 1975, the agency released some documents and withheld others on the basis they were exempt from disclosure. Plaintiff pursued his administrative remedies and then sued in this court, seeking disclosure of the remaining material. In an opinion dated September 29, 1977, we granted defendants partial summary judgment and required in camera inspection of other documents before ruling on the propriety of defendants' withholding. After the in camera inspection, we granted partial summary judgment for both plaintiff and defendants on April 10, 1978. Both parties have moved for reconsideration.

Plaintiff does not disagree with our ruling of April 10. Rather, he claims that through certain disclosed documents he became aware that there were other documents referring to him in the agency's possession. Through a report of the Controller General of the United States dated December 26, 1977, plaintiff claims he learned that the FBI maintains other information systems, and that not all information is retrievable through the only system that the FBI searched. Thus, plaintiff requests that we vacate our judgment for the limited purpose of directing the FBI to re-examine all appropriate indices and record-keeping systems, namely electronic surveillance indices ("ELSUR") maintained by FBI headquarters and most field offices, and systems maintained by four appropriate field offices, New York, Chicago, San Francisco and Minneapolis. Defendants respond that this information is more properly the subject of a new request and that compliance would be burdensome.

That response to a FOIA request may be time-consuming or burdensome is not a valid defense. Wellford v. Hardin, 315 F.Supp. 175 (D.Md.1970), aff'd, 444 F.2d 21 (4th Cir. 1971). Allowing such a defense would undercut the Act's broad policy of disclosure. Charges for expenses incurred are allowable. 28 C.F.R. § 16.9 (1977). However, 5 U.S.C. § 552(a)(3) does specify that the request for records should "(A) reasonably describe such records. . . ." Such description is an aid to identification of the records to be searched. Since plaintiff's original request did not indicate which field offices might have information regarding him, we conclude that he had not reasonably described those records he wanted searched. Without this focus, defendants had no duty to plaintiff to search all field offices. Plaintiff certainly cannot broaden his request at this point in the litigation.

Plaintiff, however, maintains that he only recently became aware of the existence of field office or the ELSUR information systems. In view of these extenuating circumstances, and in the interest of justice, he argues, the FBI should now be required to expand its search. We note that the Justice Department had published in the Federal Register on August 27, 1975, and every year thereafter a description of its record-keeping systems. 40 Fed.Reg. 38,766 (1975). A number of systems were listed for the FBI, including the Central Record system and the ELSUR indices. Moreover, the description of the Central system indicates that the field offices have records that are not kept in the Central system. Plaintiff could have learned of these other record-keeping systems prior to the filing of his complaint in October 1976. The affidavit of Alan Hoyt filed in support of defendants' motion for summary judgment on April 29, 1977, states that only the Central Records System was searched following plaintiff's request for disclosure. Thus, plaintiff should have known more than a year ago that not all the FBI record systems had been searched. Leave to file an amended complaint seeking to compel defendants to perform a more complete search should have been requested. Plaintiff has delayed too long. We will not vacate our judgment to force the agency to search other files.

Defendants request that we reconsider our decision to order disclosure of information which defendants had claimed was exempt under 5 U.S.C. § 552(b)(7)(C), (D), (E).¹ Defendants contend that references to "security flashes" ought to be deleted because it is the type of investigative technique meant to be protected by (b)(7)(E). We reiterate that our in camera review of the documents concerned and the in camera "(b)(7)(E)" affidavit does not convince us that "security flashes" or the tagging of fingerprints falls within the protection of (b)(7)(E). Since the use of "flashes" is generally well known or suspected, it is not so unique as to warrant the exemption.

Defendants object under exemption (b)(7)(D) to our...