Pacheco v. Federal Bureau of Investigation

• Decision Date: 10 May 1979
• Docket Number: Civ. No. 76-83.
• Parties: Olaguibeet A. López PACHECO et al., Plaintiff, v. FEDERAL BUREAU OF INVESTIGATION et al., Defendants.
• Court: U.S. District Court — District of Puerto Rico

470 F. Supp. 1091

Olaguibeet A. López PACHECO et al., Plaintiff, v. FEDERAL BUREAU OF INVESTIGATION et al., Defendants.

Civ. No. 76-83.

United States District Court, D. Puerto Rico.

May 10, 1979.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Arturo Aponte Paré, Roberto Busó Aboy, Rafael L. Franco Gracia, Hato Rey, P. R., for plaintiff.

Julio Morales Sanchez, U. S. Atty., Hato Rey, P. R., for defendants.

DECISION AND ORDER

TORRUELLA, District Judge.

The present suit was commenced on January 23, 1976, when Plaintiff filed a complaint against the Federal Bureau of Investigation (hereinafter referred to as the F.B.I.) and its Director, seeking disclosure of certain records in their possession pertaining to Plaintiff and his son. Jurisdiction was predicated on the Freedom of Information Act, as amended, 5 U.S.C. § 552(a)(4)(B). Shortly after the initiation of suit, the Court stayed the proceedings pending exhaustion of the available administrative remedies.

Progressive disclosures were made by the agency as a result of Plaintiff's pursuit of his claims at the administrative level.¹ In the interim, Plaintiff's complaint herein was amended twice. As now framed by the extant pleading, this action is based on the Freedom of Information Act, as amended (hereinafter referred to as FOIA), 5 U.S.C. § 552 and the Freedom of Information and Privacy Act, as amended, (hereinafter referred to as FOIPA) 5 U.S.C. § 552a. Plaintiff seeks an injunction against withholding certain information, as well as an order directing Defendants to amend some of the records that have been disclosed. The named Defendants now are the F.B.I., its Director, the United States Department of Justice and the Attorney General of the United States.²

Several matters are pending resolution by this Court. On August 30, 1978 the Defendants filed a Motion for Summary Judgment asserting full compliance with their duties under the FOIA and the FOIPA. Plaintiff requested that consideration of said Motion be held in abeyance pending completion of his discovery endeavors. Hence, his opposition was not submitted until February 1, 1979.³ A Motion for In Camera Inspection and a Cross Motion for partial summary judgment were also filed by the Plaintiff on March 9, and April 12, 1979 respectively. As of this date, the first of these two requests remains unopposed.

Any resolution on the merits at the present instance would now be premature should an in camera examination be deemed necessary. We shall thus address ourselves to this aspect first.

I. PLAINTIFF'S MOTION FOR IN CAMERA INSPECTION.

Plaintiff vehemently requests that we hold an in camera examination of the entire records of himself and his son held by Defendants "to determine whether the records or any portion of the records held by Defendants . . . may be withheld from him under any of the exemptions claimed by Defendants and what records have been withheld without any claim of exemption."

The FOIA expressly provides for in camera examination of agency records. 5 U.S.C. § 552(a)(4)(B).⁴ However, the Act does not contemplate in camera line-by-line inspections whenever a FOIA Plaintiff expresses incredulity concerning the agency's deletions of portions of documents under 5 U.S.C. § 552(b) in fine. Weissman v. Central Intelligence Agency, 184 U.S.App.D.C. 117, 122-23, 565 F.2d 692, 697-698 (1977). Congress made it clear that this section merely "permits such in camera inspection at the discretion of the Court." H.R.Rep. No. 93-1380, Conference Rep. 93d Cong., 2d Sess. 9 (1974). Before such inspection is ordered, the Government must be afforded the opportunity to establish by means of testimony or detailed affidavits that the documents are clearly exempt from disclosure. Ibid. See also, S.Rep. No. 93-854, 93d Cong., 2d Sess. 15 (1974), U.S.Code Cong. & Admin.News 1974, p. 6267; Bell v. United States, 563 F.2d 484 (C.A. 1, 1977).

In the case at bar we do not believe that "the record is vague or the agency claims too sweeping or suggestive of bad faith" so as to warrant an in camera examination. Weissman v. Central Intelligence Agency, supra 184 U.S.App.D.C. at p. 123, 565 F.2d at p. 698. Although the burden of proof is on the agency claiming exemptions, and even though courts must apply that burden with an awareness that the Plaintiff is at a disadvantage in attempting to controvert the agency's assertions, it is also true that a submission by the agency of an index of withheld documents, accompanied by detailed justifications for their non-disclosure may adequately permit courts to evaluate the merits of Defendants' claims of exemptions. In this task, the court is expected to accord "substantial weight" to the agency's affidavit. Bell v. United States, supra, at 487. See, Ollestad v. Kelley, 573 F.2d 1109 (C.A. 9, 1978); Vaughn v. Rosen, 157 U.S.App.D.C. 340, 344, 484 F.2d 820, 824 (1973), cert. denied 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974).

An evaluation of the record in light of the aforestated principles convinces us that no in camera review of documents need be conducted in this case. The Defendants have submitted copies of all the documents forwarded to Plaintiff. Those documents have been numbered and precisely identified in detailed affidavits by Special Agents John F. Loome, Jr., and Lowell B. Strong. These sworn statements, together with the detailed explanations which accompany each of the documents, describe in detail the contents of each excised or withheld record, citing and pinpointing the specific exemptions under which the F.B.I. has denied disclosure.

Most of the claimed exemptions pertain to portions of documents otherwise disclosed. The raison d'etre for the excisions can be reasonably gleaned from the exhibits on file. These factors tend to indicate that the agency has not exempted whole documents merely because they contained some exempt material. See, Weissman v. Central Intelligence Agency, supra, 184 U.S.App. D.C. at 123, 565 F.2d at 698.⁵ We believe that the record is sufficiently pellucid to permit legal rulings without having to undertake further probes at this stage. See, Vaughn v. Rosen, supra, 157 U.S.App.D.C. at 344, 484 F.2d at 824. See also, Mead Data Central, Inc. v. U. S. Dept. of Air Force, 184 U.S.App.D.C. 350, 566 F.2d 242 (1977); Fonda v. Central Intelligence Agency, 434 F.Supp. 498 (D.C.D.C., 1977); Marks v. Central Intelligence Agency, 426 F.Supp. 708 (D.C.D.C., 1976); Heublein, Inc. v. F. T. C., 457 F.Supp. 52 (D.C.D.C., 1978). As the Court of Appeals for the District of Columbia so aptly stated in Weissman v. Central Intelligence Agency, supra:

"In every FOIA case, there exists the possibility that Government affidavits claiming exemptions will be untruthful. Likewise, in every FOIA case it is possible that some bits of non-exempt material may be found among exempt material, even after a thorough agency evaluation. If . . . these possibilities are enough automatically to trigger an in camera investigation, one will be required in every FOIA case. This is clearly not what congress intended . . ." 184 U.S.App.D.C. at 122, 565 F.2d at 697 (footnote omitted).

Considering the above, Plaintiff's Motion for in camera inspection is hereby DENIED. We shall thus proceed to address the merits based on the record before us.

II. DEFENDANTS' MOTION FOR SUMMARY JUDGMENT.

Defendants contend that the present action can be resolved without a trial, in consonance with the criteria set forth in F.R.Civ.P. 56.

In the Second Amended Complaint filed herein it is alleged that the F.B.I. has possession of a photograph of Plaintiff, allegedly taken without his knowledge or permission, in asserted violation of Plaintiff's privacy rights; that the agency has failed to disclose records concerning Plaintiff and his son; that some of the information contained in the records of the F.B.I. is "false, untrue and baseless"; that Defendant agency maintains records describing how Plaintiff exercises rights guaranteed by the First Amendment in alleged violation of 5 U.S.C. § 552a(e)(7); that the F.B.I. has not specifically indicated the reason for each particular excision and failed to establish the applicability of the exemptions claimed;⁶ that the documents withheld from disclosure as records "currently and properly classified pursuant to Executive Order 11652" were not properly classified; that Defendant Agency has blocked Plaintiff's rights by failing to notify him of his right to judicial review as mandated in 5 U.S.C. § 552a(d)(3), and that Defendants have intentionally and willfully refused to comply with Plaintiff's request to amend his and his son's records. At this juncture, we deem it necessary to refer to certain general principles which ought to guide this Court in its resolution of the issues raised herein.

An agency faced with a request for information under the statute is bound to disclose all the information in its hands unless it is exempted. Morton-Norwich Products, Inc. v. Mathews, 415 F.Supp. 78, 81 (D.C.D.C., 1976). This principle mirrors the dual objectives embodied in the FOIA. It is true that the statute's limited exceptions "do not obscure the basic policy that disclosure, not secrecy, is the dominant objective of the Act." Department of Air Force v. Rose, 425 U.S. 352, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976). But on the other hand, the Act "seeks to preserve the confidentiality undeniably essential in certain areas of Government operations." F. A. A. Administrator v. Robertson, 422 U.S. 255, 261, 95 S.Ct. 2140, 2145, 45 L.Ed.2d 164 (1975). With these principles in mind, we will engage in the delicate task of balancing the competing interests at stake.

As we indicated hereinbefore, Defendants have filed detailed affidavits by Special Agents of the F.B.I., together with an Exhibit "V" in support of their Motion for Summary Judgment. Said Exhibit V is an indexed compilation of the documents released, the withheld...