Nix v. U.S.

• Decision Date: 28 February 1978
• Docket Number: No. 76-1898,76-1898
• Citation: 572 F.2d 998
• Parties: Daniel NIX, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 998

572 F.2d 998

Daniel NIX, Appellant, v. UNITED STATES of America, Appellee.

No. 76-1898.

United States Court of Appeals, Fourth Circuit.

Argued Feb. 16, 1977.

Decided Feb. 28, 1978.

Clay G. Guthridge, Third Year Law Student (Allan R. Holmes, Columbia, S. C., Legal Aid Service Agency, on brief), for appellant.

Thomas G. Wilson, Atty., Dept. of Justice, Washington, D. C. (Rex E. Lee, Asst. Atty. Gen., Washington, D. C., Mark W. Buyck, Jr., U. S. Atty., Columbia, S. C., Morton Hollander and Leonard Schaitman, Attys., Appellate Section, Civil Division, Dept. of Justice, Washington, D. C., on brief), for appellee.

Before CRAVEN ^* and WIDENER, Circuit Judges, and COPENHAVER, District Judge. ^**

COPENHAVER, District Judge:

In April 1974, appellant Nix was incarcerated at the South Carolina Central Correctional Institution of Columbia. Nix alleges he was gassed and beaten by several of the institution's guards without provocation on his part. As a consequence of that incident, two letters written by four of Nix's fellow inmates were received by the Federal Bureau of Investigation (FBI), complaining of the ill treatment afforded Nix. Subsequently, FBI agents interviewed some thirty persons, consisting of inmates, prison guards and a prison supervisory official. A statement was also obtained from a physician. The results of this investigation of the alleged violation of Nix's civil rights were brought to the attention of an assistant United States Attorney for the District of South Carolina, who deemed the case to be without prosecutive merit.

Nix brings this action pursuant to the Freedom of Information Act (hereinafter referred to as FOIA), 5 U.S.C. § 552, as amended. ¹ He seeks the inmate letters, interview reports, and various other materials compiled by the FBI in the course of its investigation. This appeal is from an order of the district court dismissing appellant's complaint. We affirm save for one item of medical material refused Nix and the names of guards omitted from an FBI interview with inmate Isenock, who consented to release of his interview.

Prior to institution of this suit, Nix unsuccessfully sought to obtain these materials from the Civil Rights Division of the Department of Justice. After commencement of this action, Nix was furnished with the following materials, constituting but a minor portion of that which he requested:

1. A copy of the FBI's interview with Nix.

2. A half-page synopsis of the events leading to the FBI investigation.

3. A one-page statement concerning the civil action filed by Nix and another against several members of the South Carolina Department of Corrections.

4. Two one-page drawings of the cellblock area where Nix was confined.

5. A one-sentence statement that an assistant United States Attorney had found the alleged beating and gassing of Nix to be without prosecutive merit.

6. Four photographs of Nix depicting his injuries.

Various deletions were made from the material so furnished, including FBI file numbers, the names of the investigating or reporting FBI agents, identification numbers, some preprinted form language and the name of the assistant United States Attorney. ²

Subsequently, Nix also received from the FBI a copy of the report of its interview with inmate Isenock. Nix had obtained Isenock's consent for this purpose and the FBI deemed the inmate's consent to be a waiver of his right to privacy. Deletions were made from the interview report, including the names of guards mentioned by Isenock. ³ In view of Isenock's consent, there is no justification for the deletion of the names of the guards as given by him and whose names are also to be found in the released copy of the FBI's interview with Nix. Accordingly, the Isenock statement as released is to be issued anew with the names of the guards inserted as set forth in the interview report by the FBI agent.

At the direction of the court below, the FBI filed the disputed material with the court for an in camera inspection in keeping with the provisions of 5 U.S.C. § 552(a)(4)(B). Both the district court and this court have examined the disputed material which consists essentially of the following:

1. The two letters written by four inmates alerting the FBI to Nix's alleged ill treatment

2. Reports of interviews with guards who were suspects, inmates who were witnesses and a prison supervisory official

3. Report of a physician's statement

4. Names of third parties, such as FBI agents, prosecutors, witnesses and suspects

5. Reports obtained from sources within a non-federal law enforcement agency

6. Various internal procedural items such as the investigation title and file numbers, as well as items deemed cover letters.

Prior to the 1974 amendments to the Freedom of Information Act, virtually all of the material at issue here would have been deemed exempt simply on the ground that it constitutes part of the investigatory records compiled for law enforcement purposes by a criminal law enforcement authority in the course of a criminal investigation. Center for National Policy Review on Race & Urban Issues v. Weinberger, 163 U.S.App.D.C. 368, 502 F.2d 370 (1974).

The 1974 amendments, which were enacted on November 21, 1974, and became effective February 19, 1975, narrowed and defined the exemptions from disclosure as now set out in the subsections to 5 U.S.C. § 552(b). ⁴

The Justice Department contends that the withheld material is exempt from disclosure by virtue of the provisions of various subsections of section 552(b): (2) (internal personnel rules and practices); (6) (personnel and medical files, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy); (7)(C) (unwarranted invasion of personal privacy); and (7)(D) (confidential source identity and confidential information). In applying these exemption provisions, it would appear that Congress intended the courts to balance the public and private interests involved. The United States Supreme Court has so held in the course of employing the subsection (6) exemption. Department of the Air Force v. Rose, 425 U.S. 352, 372-73, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976). This court has found the balancing test to be equally appropriate when construing subsection (7)(C). Deering Milliken, Inc. v. Irving, 548 F.2d 1131, 1136 n.7 (4th Cir. 1977). We find the balancing test applicable as well to subsections (2) and (7)(D).

In employing the balancing test, we are mindful that FOIA exemptions are to be narrowly construed in accordance with the legislative purpose of Congress that disclosure rather than secrecy is the dominant objective of the Act. Department of the Air Force v. Rose, 425 U.S. at 360-61, 96 S.Ct. 1592. As we have recently observed, Congress, in enacting the 1974 FOIA amendments, was dissatisfied with the broad application given by the courts to exemption 7 of the original Act and with the limited extent to which the courts were allowing disclosure of investigatory files. Charlotte-Mecklenburg Hospital Authority v. Perry, 571 F.2d 195, No. 76-2272 (4th Cir. January 26, 1978). The FOIA exemptions, together with the balancing of private and public interests in keeping therewith, are to be construed and applied accordingly.

The record in this case indicates that Nix has also filed a civil rights suit in the same district court below on his own behalf and on behalf of an asserted class alleging mistreatment by the guards at the South Carolina Correctional Institution of Columbia. That suit concerns the same incident involved in the FBI investigation under consideration in this FOIA action as well as prison conditions generally. As this court observed in Deering Milliken, 548 F.2d at 1134-35, FOIA's purpose is to inform the public about the action of government agencies. It was not designed to supplement the rules of civil discovery. Thus, the right of Nix to obtain information is neither enhanced nor diminished because of his needs as a litigant, but is to be measured by the right of the

public to obtain the same information. I. The Inmate Letters

and FBI Interviews (Excluding Physician's Statement)

Although the four inmates did sign their names to the two letters to the FBI, the accusations of impropriety contained in the letters are of such a nature that individuals in the vulnerable position of these informers, facing potential reprisal from the very prison guards and prison officials against whom they complain, would hardly have made the charges unless they were confident that their identities would remain concealed. In applying the confidentiality exemption of subsection (7)(D), it is enough to show that the information was furnished under circumstances from which an assurance of confidentiality could be reasonably inferred. ⁵ Deering Milliken, 548 F.2d at 1137.

At the time the letters were written in May 1974, being prior to the 1974 FOIA amendments, the state of the law was such that investigatory files compiled for law enforcement purposes were deemed exempt from disclosure. ⁶ Although questions of confidentiality as well as privacy are to be determined in accordance with the present language of the statute, the district court properly considered the law applicable at the time the letters were written in determining the confidential nature of these communications. In view of the peril of reprisal confronting the inmate-informers and the state of the law as it existed when their letters were transmitted to the FBI, the finding by the court below that the letters were written and received under an implied assurance of confidentiality is amply supported by the record. Consequently the identity of each of the inmate authors is protected from disclosure by subsection (7)(D). This does not, we hasten to add, suggest that, had the inmate-informers written their letters after the effective date of the 1974 FOIA amendments, they would not be protected. Rather, we undertake now to pass only on those...