Providence Journal Co. v. FBI

• Decision Date: 05 October 1978
• Docket Number: Civ. A. No. 77-0526.
• Citation: 460 F. Supp. 778
• Parties: PROVIDENCE JOURNAL CO., Plaintiff, v. FEDERAL BUREAU OF INVESTIGATION et al., Defendants, and Raymond L. S. Patriarca, Intervenor.
• Court: U.S. District Court — District of Rhode Island

460 F. Supp. 778

PROVIDENCE JOURNAL CO., Plaintiff, v. FEDERAL BUREAU OF INVESTIGATION et al., Defendants, and Raymond L. S. Patriarca, Intervenor.

Civ. A. No. 77-0526.

United States District Court, D. Rhode Island.

October 5, 1978.

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Matthew F. Medeiros of Edwards & Angell, Providence, R. I., for plaintiff.

Vincent M. Garvey, Civ. Div., U. S. Dept. of Justice, Washington, D. C., Everett C. Sammartino, Asst. U. S. Atty., R. I., Providence, R. I., Harris L. Berson, Providence, R. I., Harvey Brower, Lawrence, Mass., for defendants.

OPINION

Travel of the Case

PETTINE, Chief Judge.

On May 15, 1978 this Court rendered an opinion in this case disposing of five preliminary questions¹ and concluded that: Mr. Patriarca "has standing to intervene and assert claims arising under the fourth amendment, 5 U.S.C. §§ 552, 552a, 702, 706 (1976) with jurisdiction conferred by 28 U.S. C.A. § 1331 (1976)"; "the electronic surveillance at issue in this case is not exempt from disclosure pursuant to (FOIA) exemption 3 because the specific prohibitions against disclosure in Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-20 (1976) do not apply retroactively"; "(g)uided by the FOIA standard `unwarranted invasion of personal privacy', as that clause is given meaning by the developing case law, this Court can strike a balance between the individual interest in privacy and the public's interest in disclosure, which will be reasonable and which will not breach Mr. Patriarca's constitutionally protected privacy interest"; "Mr. Patriarca (had) forfeited and waived whatever fourth amendment right he had to have the government refrain from disclosing the illegally seized conversations and their fruits"; and that "first amendment interests counsel not the withholding of information but its disclosure". The Court deferred resolution of exemptions, §§ 552(b) 4, 6, 7 and ordered the government to either consent to the preparation of a document index or serve a memorandum of law in opposition thereto.

On June 6, 1978 the plaintiff and defendant stipulated, with approval of the Court, that the document index need not be prepared and that all the documents would be submitted to the Court for in camera inspection.

Pursuant to this stipulation the FBI delivered two cartons containing approximately two thousand documents consisting of over seven thousand pages. Subsequently, the plaintiff and defendants submitted cross motions for summary judgment,² arguing, respectively, that exemption 7(C) mandates complete disclosure or complete withholding.³

I undertook to read the documents in light of the arguments for summary judgment, and after a week of reading a number of these documents, I concluded that no useful purpose would be served in continuing this laborious and time consuming task. All those documents I read sounded the same theme with only slight variations as they involved different individuals and locales. There is no reason to believe the rest of the papers would offer anything new. I have, therefore, concluded that the defendant, i. e., the United States Government, if it sees fit to further object to revelation, should carry the burden of specifically identifying the sections of each document to which it objects, setting forth as to each objection the government's factual detailed reasons for doing so in light of the standards set forth in this opinion. Requiring the government to make specific objections is consistent with the statutory scheme which places the burden "on the agency to sustain its action" in withholding documents. 5 U.S.C. § 552(a)(4)(B).⁴ The government must demonstrate a threat to privacy interests "more palpable than mere possibilities", Dept. of Air Force v. Rose, 425 U.S. 352, 380 n. 19, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976).⁵

STANDARDS FOR DISCLOSURE

EXEMPTION 7(C): PRIOR CASE LAW

In order to protect personal privacy, FOIA and the Privacy Act together interpose a neutral magistrate between the Government's mandate to disclose and the individual's interest in his privacy. Even before the Privacy Act created a cause of action by which an individual could invoke judicial scrutiny, FOIA by itself provided, in exemptions 7(C) and 6, for the judicial balancing of privacy claims against the public interest in disclosure. As Senator Cranston noted in floor debate on the 1974 FOIA amendments, "Turning to the courts as a disinterested third party to resolve disputes . . . between individuals and the government is in keeping with centuries of American tradition."⁶

The interposing of a neutral magistrate, a model analogous to the requirement of a magistrate found in the fourth amendment's warrant clause, see United States v. United States District Court, 407 U.S. 297, 315-18, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972), has been recognized to have wide applicability in the protection of privacy. Thus Justice Powell noted that

the potential for abuse is particularly acute where, as here, the legislative scheme permits access to this private banking information without invocation of the judicial process. In such instances, the important responsibility for balancing societal and individual interests is left to unreviewed executive discretion, rather than the scrutiny of a neutral magistrate. California Bankers Ass'n v. Shultz, 416 U.S. 21, 79, 94 S.Ct. 1494, 1526, 39 L.Ed.2d 812 (1974) (Powell, J., concurring).

While most FOIA exemptions eschew judicial balancing, exemptions 7(C) and 6 require it in order to safeguard privacy. The Supreme Court has affirmed that

Congress sought to construct an exemption that would require a balancing of the individual's right of privacy against the preservation of the basic purpose of the Freedom of Information Act . . .. Dept. of Air Force v. Rose, 425 U.S. at 372, 96 S.Ct. at 1604.

While Rose dealt with exemption 6, we shall treat 6 and 7(C) as identical in meaning because of their similarity of purpose and language, except that an unwarranted invasion of personal privacy permits withholding of investigatory files under exemption 7(C), but only a clearly unwarranted invasion of personal privacy permits withholding of personnel, medical and other files under exemption 6.

1) A developing case law has begun to give meaning to these exemptions and to strike an appropriate balance between individual privacy and public disclosure. The case law has defined the "privacy" which FOIA protects largely in terms of the content of information and has tried to demarcate those informational topics which are deeply private from those which are only minimally private.

Cases begin their search for a definition of privacy with the phrases "`intimate details' of a `highly personal' nature"⁷ and "commonly thought of as private" matters.⁸ One court has singled out "information regarding marital status, legitimacy of children, identity of fathers of children, medical condition, welfare payments, alcoholic consumption, family fights, reputation . . ." as involving intimate details;⁹ added to these are religious and philosophic beliefs¹⁰ and travel history.¹¹ Courts have also tried to define privacy by the emotion which disclosure evokes: matters are private which, if disclosed, evoke embarrassment¹² in a person of normal sensibilities. Various cases have protected information about an individual's job performance, such as supervisors' comments or conclusions about the appropriateness of his civil service classification.¹³ While corporations have no privacy,¹⁴ personal financial information is protected,¹⁵ including information about small businesses when the individual and corporation are identical.¹⁶ Medical information is not per se protected;¹⁷ thus a court has permitted disclosure of a study indicating that persons in certain locations may have been subjected to unusual amounts of radiation.¹⁸ While past criminal activity¹⁹ and prison²⁰ records are private, disclosure may be warranted by the public interest.²¹ Courts have disagreed as to whether union authorization cards are confidential.²² Finally, the Supreme Court has said that the legislative history shows that exemption 6 refers in particular to the kind of files maintained by HEW, the Selective Service and the Veterans' Administration; such files contain "`vast amounts of personal data' concerning an individual . . . showing, for example, where he was born, the names of his parents, where he has lived from time to time, his high school or other school records, results of examinations, evaluations of his work performances." Dept. of Air Force v. Rose, 425 U.S. at 377, 96 S.Ct. at 1606.

Some courts will engage in a balancing of interests only if they first determine that a substantial invasion of privacy is threatened,²³ while others balance regardless of the seriousness of the threatened invasion.²⁴ These latter courts have thus had to review the privacy interests involved in the disclosure of only names and addresses²⁵ and marital status.²⁶ This has thrust upon them a more relative and contextual definition of privacy and less of a content-based definition. For example, a disclosure of only a name, ordinarily not private, in the context of Watergate could be quite embarrassing.²⁷ These latter courts have also come to recognize that privacy includes an interest in being free from intrusions, solicitations, mailings and harassments.²⁸ For example, courts have had to consider the degree to which a mere disclosure of a name would subject recipients to disagreeable harassment²⁹ or beneficial solicitations.³⁰

While such courts have begun to treat privacy as a broader concept than a pure content-based definition allows, courts have only incidentally suggested that the manner in which the government obtains information determines whether it is private. No court has withheld disclosure solely on the ground that the manner in which the information was obtained...