Lesar v. United States Dept. of Justice, Civ. A. No. 77-0692.

• Decision Date: 28 July 1978
• Docket Number: Civ. A. No. 77-0692.
• Parties: James H. LESAR, Plaintiff, v. UNITED STATES DEPARTMENT OF JUSTICE et al., Defendants.
• Court: U.S. District Court — District of Columbia

455 F. Supp. 921

James H. LESAR, Plaintiff, v. UNITED STATES DEPARTMENT OF JUSTICE et al., Defendants.

Civ. A. No. 77-0692.

United States District Court, District of Columbia.

July 28, 1978.

COPYRIGHT MATERIAL OMITTED

James H. Lesar, pro se.

Lynne K. Zusman, Daniel J. Metcalfe, Dept. of Justice, Washington, D. C., for defendants.

MEMORANDUM OPINION

GESELL, District Judge.

This case comes before the Court on cross-motions for summary judgment and concerns the efforts of the pro se plaintiff, an attorney,¹ to gain access under the Freedom of Information Act (FOIA), 5 U.S.C. § 552 (1976), to papers and investigative reports in the custody or control of the Department of Justice relating primarily to the assassination of Martin Luther King, Jr. The issues have been fully briefed and argued.

The vast bulk of the material requested has been supplied in whole or in part. The controversy here concerns documents or portions of documents withheld under various exemptions. Detailed affidavits and indices have been filed by the Department, and in all instances the nature of the document and exemptions claimed are clearly described. It is not necessary to discuss each document in dispute. The papers fall under certain general categories and will be dealt with accordingly.

(1) Security investigation. For a period of many months prior to his death, the FBI placed Dr. King and certain of his immediate colleagues under constant surveillance. Records of microphonic surveillance have been inventoried and are sealed at Archives by Order of The Honorable John Lewis Smith, Jr. dated January 31, 1977, in consolidated Civil Actions Nos. 76-1185 and 1186. These materials remain subject to release by order from a court of competent jurisdiction requiring disclosure. Defendant originally relied solely on Judge Smith's Order as ground for refusing disclosure of any of the papers covered by the Order. At oral argument the Court indicated that the FOIA may still apply to these materials. Thereafter the papers were individually reviewed by appropriate Justice Department personnel and processed under FOIA. The results of this examination are detailed in affidavit form.

Plaintiff stated at oral argument that he had no interest in these papers insofar as they reveal intimate private conversations or sexual activity. He presses, however, for any materials relating to political matters. These materials fall into two categories:

(1) Papers containing mostly political, nonpersonal conversations have now been identified and will be released upon order of this Court. The Court directs that these papers be released.

(2) Other material has been released but mostly in expurgated form. Each deletion is keyed to one of the following FOIA exemptions: b(1), b(2), b(7)(C), (D), and (E). When the expurgated documents are reviewed in context it appears that defendants have proceeded in good faith and deleted only material within the exemptions claimed. Plaintiff suggests that material impinging on privacy interests should be disclosed and denied the protection of b(7)(C) because the surveillance conducted by the FBI was illegal and therefore not law enforcement. Illegality or legality does not determine the applicability of this exemption. No further disclosures from the materials sequestered under Judge Smith's Order is required except as indicated above.

(2) Records obtained from Memphis and Atlanta Police. Exemption for these records is claimed under b(7)(D) with the assertion that the exemption applies to cooperating law enforcement agencies as "confidential sources." Both police departments submitted the records to the Department of Justice in confidence. The Memphis records which are of special interest to plaintiff are shown to have been disclosed to the FBI under strict assurances of confidentiality and with dubious subpoena protection. It may well be that these police records are not in fact agency records. Compare Goland v. CIA, No. 76-1800, slip op. at 7-14 (D.C.Cir., May 23, 1978) with Forsham v. Califano, No. 76-1308, slip op. at 16 n. 19, 18 (D.C.Cir., July 11, 1978).

Assuming without deciding that the police records have become agency records the Court concluded that the exemption claimed could best be determined after an in camera inspection which would fully disclose the nature of the materials involved and enable the Court to balance the public interest against those strong considerations of policy underlying the exemptions claimed. The documents proved self-explanatory and no supplemental in camera proceedings on a sealed record were necessary.

The Atlanta records detail various threats on the life of Dr. King by named individuals and tips or other information from Dr. King's entourage concerning threats or suspicious activity.

The Memphis records are far more voluminous since they cover the immediate investigation of the killing and subsequent investigation of leads and suspects. These materials disclose police investigative techniques in detail. Numerous persons were interviewed and always their name, address and other personal data are reported. The materials include informal reports of tips or inquiries as well as formal Q & A interrogations of certain persons. Documentation is complete covering detailed surveys of the scene, the body, the presumed site from which the shot was fired, contemporaneous cruiser dispatches, and reports summarizing activities. The investigation appears to have been thorough and conscientious.

In support of the exemption it is strenuously contended that FBI cooperation with state and local law enforcing agencies will be seriously harmed if material from cooperating local police agencies is not treated as "confidential source" data. A b(7)(D) claim of exemption has frequently been sustained under comparable circumstances. See Nix v. United States, 572 F.2d 998 (4th Cir. 1978); Church of Scientology v. United States Dept. of Justice, 410 F.Supp. 1297 (C.D.Cal.1976), and various unreported decisions cited by the Government. The exemption will be sustained here. The Court finds no substantial countervailing public interest in disclosure and notes that the bulk, if not all, of the material is of a nature that would bring it under other FOIA exemptions if processed sheet-by-sheet.

Plaintiff desires to use discovery techniques in an attempt to substantiate his...