Varona Pacheco v. FEDERAL BUR. OF INVESTIGATION, Civ. No. 77-28.

Citation456 F. Supp. 1024
Decision Date12 September 1978
Docket NumberCiv. No. 77-28.
PartiesJose Antonio VARONA PACHECO, Plaintiff, v. FEDERAL BUREAU OF INVESTIGATION, United States Department of Justice, Attorney General of the United States and Clarence M. Kelley, Director of the F.B.I., Defendants.
CourtU.S. District Court — District of Puerto Rico

COPYRIGHT MATERIAL OMITTED

Olaguibet A. López Pacheco, Hato Rey, P. R., for plaintiff.

Julio Morales Sanchez, U. S. Atty., Old San Juan, P. R., for defendants.

OPINION AND ORDER

TOLEDO, Chief Judge.

The original complaint in this case was filed on January 5, 1977. The action was brought pursuant to the provisions of the Freedom of Information and Privacy Act, Title 5, United States Code, Section 552(a)(4)(B), ("the Act"), seeking the production of records kept by the Federal Bureau of Investigation pertaining to plaintiff and his activities. Shortly after the filing, we stayed the action pending plaintiff's exhaustion of the available administrative remedies.

Thereafter, on January 24, 1978, after exhausting the administrative remedies, plaintiff filed an amended complaint alleging in essence that all of the documents and/or information withheld from plaintiff and as to which defendants claimed exemption under the Act, were withheld arbitrarily and capriciously and without lawful reason. This amended complaint was answered on March 1, 1978.

At the present time, there are several motions pending resolution by this Court. On June 1, 1978, plaintiff filed a motion and supporting memorandum requesting the holding of an in camera inspection of plaintiff's record including the documents in dispute. This was opposed to by defendants on July 10, 1978. On July 5, 1978, defendants filed a motion to dismiss and brief support thereto, which was opposed by plaintiff on July 19, 1978. On July 10, 1978, defendants filed a motion for summary judgment with a brief, which was opposed to by plaintiff's filing of August 3, 1978. Because the motion to dismiss, if granted, would render the remaining ones academic, we shall consider it first.

I. DEFENDANTS' MOTION TO DISMISS

Defendants have moved to dismiss the instant action pursuant to Rule 12 of the Federal Rules of Civil Procedure as against the Federal Bureau of Investigation ("FBI"), the Attorney General of the United States, and Clarence M. Kelley, Director of the FBI, on the grounds that they are not proper party defendants under the Act, Title 5, United States Code, Section 552 (1970 and Supp. IV, 1974).

The named defendants in this case, both in the original and the amended complaint, are: (1) Federal Bureau of Investigation; (2) the United States Department of Justice; (3) the Attorney General of the United States, and (4) Mr. Clarence M. Kelley, Director of the FBI, who has been now substituted as per our Order of July 21, 1978, by Mr. William H. Webster, the present Director of the FBI.

In support of their contention defendants allege that the Act here in question grants jurisdiction to the Federal district courts "to enjoin an agency from withholding agency records", Title 5, United States Code, Section 552(a)(4)(B), and that the statutory definition of "agency"1 does not encompass either individuals or component parts of an agency.

Thus, it is alleged that the Attorney General of the United States, and the FBI Director have been improperly included herein because they are Government officials, and clearly not "agencies" within the meaning of the Act. In regard to the FBI it is contended that the same is a component part of the Department of Justice and thus is not a proper party defendant under the Freedom of Information Act.

Two unpublished opinions are cited for the proposition that the Act here in question does not authorize a complaint against the moving defendants. Barely legible copies of the same were attached to defendants' brief. The first one is Burke v. Kelley, Civil Action No. 75-336-C3 (February 11, 1976, D.C.Kansas). In that case the Court dismissed the complaint against the Director of the FBI after finding that it lacked jurisdiction because the Department of Justice had not been included as a defendant.

In Shouse v. Burris, Civil Action No. CV475-198 (December 23, 1975, D.C.Ga.S. D.), the Court ruled in almost identical terms as in Burke, supra.

Plaintiff cites the case of Hamlin v. Kelley, 433 F.Supp. 180 (1977), in his opposition to defendants' contention. We have carefully analyzed this case and find it to be a better precedent than those advanced by defendants. Hamlin presents a factual situation most akin to that present herein. In that case the United States Attorney General, the FBI, and the FBI Director sought to have the complaint dismissed as against them on grounds identical to the ones herein advanced: that they were not "agencies" within the meaning of the Act. The Court rejected this contention and denied the motion to dismiss on said grounds2 by stating:

"Section 551 of the APA 5 U.S.C. § 551 defines "agency" to mean ". . . each authority of the Government of the United States, whether or not it is within or subject to review by another agency . . ." The Attorney General and the Director of the FBI, sued in their official capacity as custodians of the requested documents, are named defendants in this case precisely because they are the individuals most responsible for the policy and decisions of the Department of Justice and the FBI and because they are the final authorities of the administration of FOIA Freedom of Information Act within those departments.
Further, so many cases under this statute have been sustained against heads of departments, units and agencies that their susceptibility to suit is well established; and the motion to dismiss Levi and Kelley can only be considered frivolous.
Similarly, the FBI has long been recognized as a proper party to actions filed under FOIA. The District of Columbia Circuit found that the definition of "agency" cited above included "any administrative unit with substantial independent authority in the exercise of specific functions." Soucie v. David, 145 U.S.App.D.C. 144, 448 F.2d 1067 (1971). Defendant FBI meets this test and is a proper party to this action." Id. at pp. 181-182.

It is interesting to note that Hamlin was issued after the 1974 amendments, the legislative history of which is cited by defendants in support of their motion to dismiss. However, we do not think that the unpublished jurisprudence cited by defendants and the Hamlin case are irreconcilable, or that Hamlin rules against the legislative history cited by defendants in their brief. We think that the meaning of the legislative history cited and all the cases mentioned above is that the agency be included as a defendant so that its highest official be allowed to make a determination as to how to implement the Freedom of Information Act. It seems to us that defendants FBI, the Attorney General of the United States and Mr. Kelley, are proper parties in this action. Therefore, the motion to dismiss is DENIED for the grounds expounded by the United States District Court for the Northern District of Illinois.

II. DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND PLAINTIFF'S MOTION FOR AN "IN CAMERA" INSPECTION OF DOCUMENTS

In their motion for summary judgment defendants contend that the present action should be dismissed because there is no genuine issue as to any material fact and that, as a matter of law, they are entitled to judgment in their favor.

In the amended complaint filed herein it is alleged that the documents and/or information which defendants withheld from plaintiff and as to which defendants claimed exemption under the Act, were withheld arbitrarily and without lawful reason. It is also claimed therein that defendants have refused to amend the records to eliminate therefrom "false, untrue and incorrect information on plaintiff Varona Pacheco."

In support of their motion for summary judgment defendants have filed detailed affidavits by Special Agents of the FBI in which the records requested by plaintiff were indexed, they described the contents of each excised or withheld document, and cited the specific exemption under which the FBI has denied the disclosure. It is further stated that the only issue existing herein is one of law, that is, whether under the FOIA plaintiff is entitled to the disclosure of the withheld information. They further allege that summary judgment can be granted at this stage by examining the administrative proceedings afforded plaintiff herein and the affidavits of FBI Special Agents Murphy and Dean and that there is no need for further proceedings for an in camera inspection of documents.

On June, 1, 1978, plaintiff filed a motion requesting that the Court undertake an in camera inspection to determine which, if any, portions of the records withheld by defendants were exempt from disclosure under Title 5, U.S.C., Sections 552 and 552a. Thus, in his opposition to the motion for summary judgment plaintiff urged that the in camera inspection should be undertaken, and summary judgment in favor of defendants should not be granted because their affidavits show bad faith in that they try to justify non-disclosure of documents in the FBI files by making generalized claims of exemptions, while at the same time opposing plaintiff's motion for an in camera inspection of the entire file.

In Weissman v. CIA, 184 U.S.App. D.C. 117, 565 F.2d 692 (1977), it was decided that the holding of an in camera inspection of documents was left to the discretion of the court. It was therein suggested that before the court order such an inspection, the Government should be given an opportunity to establish by means of testimony or detailed affidavits that the documents are clearly exempt from disclosure. See Id. 184 U.S.App.D.C. at 122, 565 F.2d at 697. The court went as far as to offer a guideline 184 U.S.App.D.C. at page 123, 565 F.2d at page 698 when it stated, (quoting from the...

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