60 F.3d 1043 (3rd Cir. 1995), 94-3590, Davin v. United States Dept. of Justice

Docket Nº:94-3590.
Citation:60 F.3d 1043
Party Name:Eric DAVIN, Appellant, v. UNITED STATES DEPARTMENT OF JUSTICE, Federal Bureau of Investigation.
Case Date:August 01, 1995
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

Page 1043

60 F.3d 1043 (3rd Cir. 1995)

Eric DAVIN, Appellant,


UNITED STATES DEPARTMENT OF JUSTICE, Federal Bureau of Investigation.

No. 94-3590.

United States Court of Appeals, Third Circuit

August 1, 1995

Argued May 16, 1995.

Sur Petition for Rehearing Oct. 5, 1995.

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Marketa Sims (argued), Reed, Smith, Shaw & McClay, Pittsburgh, PA, for appellant Eric Davin.

Bonnie R. Schlueter, Michael L. Ivory (argued), Office of U.S. Atty., Pittsburgh, PA, for appellee U.S. Dept. of Justice, F.B.I.

Before: COWEN, LEWIS and GARTH, Circuit Judges.


COWEN, Circuit Judge.

Eric Davin appeals from the order of the district court granting summary judgment in favor of the United States Department of Justice, Federal Bureau of Investigation ("the FBI" or "the government") in a Freedom of Information Act ("FOIA") action. In response to a FOIA request by Davin, the FBI submitted to the district court a Vaughn index that set forth coded justifications and corresponding explanations for its withholding of approximately 7,400 pages of information. Because the Vaughn index submitted by the government did not sufficiently describe the information withheld, the district court did not have an adequate factual basis for determining whether the claimed exemptions applied to the individual documents. Accordingly, we will reverse the order of the district court and remand this matter for further determinations consistent with principles articulated in this opinion.


Davin is a graduate history student at the University of Pittsburgh in the field of labor history. In order to complete his doctoral dissertation, in April 1986 Davin filed a FOIA request with the FBI seeking "a complete and thorough search of all filing systems and locations for all records ... pertaining to David Lasser and The Workers Alliance of America." App. at 99 (emphasis in original). The Workers Alliance of America ("WAA") was a nationwide organization representing the interests of thousands of unemployed individuals during the 1930's and 1940's. For a time, the WAA was headed by David Lasser. Because the WAA did not keep minutes of its meetings, there are no other archives of information on its activities. Lasser, who is now in his nineties, has provided the FBI with a letter authorizing release of his files.

The WAA was investigated by the FBI during the 1930's after the FBI received information that the organization was a front for the Communist Party of America. The purpose of the investigation was to determine the extent of Communist influence, and the identity of WAA members who were members of the Communist Party at the time. The FBI also investigated Lasser. According to the FBI, Communists had captured positions of control within the WAA by 1936. In 1940, Lasser resigned, claiming the WAA was a front organization for the Communist Party.

In response to Davin's request, the FBI located nine relevant files at either national headquarters or at the New York field office. The FBI described the files as follows:

FBIHQ main file, 61-7586, (45 sections) corresponds to NYFO main file, 100-3638, (6 sections). Both files pertain to an internal security investigation and were compiled for law enforcement purposes. A 61 classification is entitled "Treason or Misprision of Treason" and involves violations of Title 18, U.S.C., Sections 2381, 2382, 2389, 2390, 756 and 757. A 100 classification is entitled "Domestic Security" and covers investigations by the FBI in the domestic security field; e.g., Smith Act violations. The Attorney General declared WAA to be within the purview of Executive Order 9835, and later Executive Order 10450. The first serial is dated March 5, 1936, and the last serial is dated October 21, 1960....

FBIHQ main file, 124-2592 is a loyalty investigation of David Lasser consisting of two sections. This classification covers security and loyalty investigations of personnel employed by or under consideration of employment with the European Recovery Program. Investigation was conducted under Public Law 472, 80th Congress. The first serial in this file is dated January 25, 1949, and the last serial is dated October 29, 1951.

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FBIHQ main file 121-413, (Loyalty of Government Employees) consisting of one section, pertains to a preliminary inquiry to ascertain if David Lasser was associated with the Communist Party or its front organizations. Investigation of David Lasser under the provision of Executive Order 9835 ... was instituted by the FBI on April 22, 1948. The first serial of this file is dated October 24, 1947, and the last serial is dated October 30, 1963.

FBIHQ main file, 151-748 involves one section. This classification covers referrals from the Office of Personnel Management where an allegation has been received regarding an applicant's loyalty to the U.S. Government. The Agency for International Development had requested the FBI to conduct a full field investigation under the provisions of Public Law 298, The Foreign Assistance Act of 1961, as amended. David Lasser was interviewed by the FBI in 1963 under the provisions of Executive Order 10450.... The first serial is dated December 12, 1963, and the last serial in this file is dated January 29, 1976.

FBIHQ main file, 126-706 consists of one section concerning a name check request on David Lasser for clearance for access to highly classified material by National Security Resources Board. This classification covers background investigation conducted on individuals who are to be assigned to duties under the International Development Program. The first and last serials are dated November 14, 1950, and November 15, 1950, respectively.

FBIHQ main file 65-66314, (Espionage) consisting of one section which contains documentation based on information received concerning the possibility that David Lasser could be some individual who could divert information to the detriment of the defense of the United States. No investigation was conducted. This file was opened on September 22, 1960 and closed on September 27, 1960.

FBIHQ main file, 47-13920 is a two-page file which contains information that a representative of WAA had made a claim that he had authority from the Federal Government to represent individuals in claims of various municipalities. This file was opened and closed on February 19, 1938. This classification is entitled "Impersonation" and covers violations of Title 18, U.S.C., Sections 912, 913, 915, and 916.

FBIHQ main file, 61-10652 (two sections) was initially compiled to determine if David Lasser might act as an informant for the FBI or if he would be willing to supply details concerning Communist Party activities in WAA. The first serial of this file is dated June 20, 1940, and the last document in the file is dated February 8, 1951.

Declaration of Special Agent Robert A. Moran, App. at 60-63 (footnotes omitted) [hereinafter all citations to the Appendix refer to the Moran declaration].

The FBI asserts that its records relating to the WAA total approximately 9,200 pages and its records on David Lasser contain approximately 1,200 pages. As of May 18, 1991, the FBI had released to Davin only 113 pages regarding the WAA and 150 pages on Lasser.

In April 1992, Davin filed a complaint for injunctive relief demanding the production of the documents. Subsequently, pursuant to an agreement between the parties, Davin and the government submitted a joint motion to stay the case for 130 days to permit the government to submit a Vaughn index. 1 This motion stipulated that the FBI had reviewed 6,889 documents pursuant to Davin's FOIA request, had released 2,970 pages to Davin, and claimed exemptions to the remaining 3,919 pages. The joint motion further provided that the government would select approximately 500 documents (roughly every fourteenth or fifteenth page), compile a Vaughn index and submit it to the court with a motion for summary judgment.

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Included in the government's subsequent motion for summary judgment was a declaration by FBI Special Agent Robert Moran. The purpose of Moran's declaration was to provide the court and Davin with a description of the material being withheld and justifications for the government's assertions of FOIA exemptions to withhold certain information contained in the records. The declaration consisted of correspondences concerning Davin's request, an explanation of the FBI's central records system and electronic surveillance index, a list of records pertaining to Davin's request, a sampling and definition of documents, a detailed explanation of the coded format used for justification of deleted material, and the justification for redacted materials.

A sampling of 500 pages was selected from the files. Each page was identified with a document number and indicated the file from which it came. An explanation of the types of documents in the sampling was also supplied. Portions of the documents were redacted. Located in proximity to the redacted material was a series of letters and numbers which corresponded to specific FOIA exemptions. In those instances where an entire page was redacted, justification code numbers for the withholding were substituted for the deleted page.

To determine the pertinent justification for deleted material on each processed document, the reader would refer to the document in question, note the code number adjacent to the deleted material and refer to the corresponding code categories. The memorandum then listed twenty-seven justification categories for withholding information, along with an explanation of the various categories.

Moran's declaration listed the FBI Main Files regarding Lasser and the WAA, but did...

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