Lesar v. U.S. Dept. of Justice
| Decision Date | 15 July 1980 |
| Citation | 204 U.S.App.D.C. 200,636 F.2d 472 |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 77-0692).
James H. Lesar, pro se.
Linda Jan S. Pack, Atty., Dept. of Justice, Washington, D. C., with whom Alice Daniel, Asst. Atty. Gen., Charles F. C. Ruff, U. S. Atty., Leonard Schaitman, Atty., Dept. of Justice, Washington, D. C., were on the brief for appellee. Barbara L. Herwig, Atty., Dept. of Justice, Washington, D. C., entered an appearance for appellee.
Before BAZELON, Senior Circuit Judge, and WILKEY and EDWARDS, Circuit Judges.
Opinion for the Court filed by Circuit Judge WILKEY.
This case arises under the Freedom of Information Act (FOIA). 1 Appellant requested certain reports and documents from the United States Department of Justice (Department) pertaining to the FBI's investigation of Dr. Martin Luther King, Jr. and its investigation of the assassination of Dr. King. The United States District Court granted summary judgment to the Department on grounds that the documents at issue were exempt from disclosure under Exemptions 1, 2, 7(C) and 7(D) of the FOIA, 2 and appellant seeks to challenge that order here. For reasons elaborated below, we affirm in all respects.
The chronology of events must be elaborated in some detail. On 24 November 1975 Attorney General Edward H. Levi directed the Civil Rights Division of the Department of Justice to review all Department and FBI files pertaining to Dr. King. The overall purpose of this inquiry was to determine whether the investigation of Dr. King's assassination should be reopened. Specifically, the Civil Rights Division was instructed to ascertain whether the FBI was involved directly or indirectly in the assassination of Dr. King and to assess the substance of the claim that the FBI had conducted an extensive operation to harass Dr. King. 3
Several months later on 31 March 1976, Robert A. Murphy, the head of the Criminal Section of the Civil Rights Division, completed a fifty-one page report (Murphy Report) detailing the results of the inquiry. The Murphy Report and accompanying memorandum stated that no evidence existed that the FBI was involved in any way in the assassination of Dr. King or that the FBI's investigation of the King assassination was anything less than thorough. 4 The Report further stated that the FBI had placed Dr. King under constant electronic surveillance from late 1963 until Dr. King's death in April 1968. The Report concluded that, although the surveillance initially was undertaken as part of a legitimate security investigation to determine whether Dr. King or some of his affiliates were under Communist influence, 5 it soon after degenerated into a campaign "to discredit and to neutralize Dr. King and to remove him from a leadership role in the civil rights movement." 6 The Murphy Report and accompanying memorandum, together with a cover memorandum (Pottinger Memorandum), dated 9 April 1976, from J. Stanley Pottinger, the Assistant Attorney General for the Civil Rights Division, were transmitted to the Attorney General.
Soon after receiving these reports, Attorney General Levi directed Michael E. Shaheen, head of the Department's Office of Professional Responsibility, to complete the review undertaken by the Civil Rights Division. A special Task Force was created for this purpose, and on 11 January 1977 the Task Force submitted to the Attorney General its final report entitled "Report of the Justice Department Task Force to Review the FBI Martin Luther King, Jr. Security and Assassination Investigations" (Task Force Report). 7 The Task Force Report, consisting of 149 pages and 3 voluminous appendices, reached the same conclusions as those drawn in the Murphy Report. This Report was released to the public on 18 February 1977 with the exception of the three appendices to the Report.
The two Civil Rights Division memoranda, i. e., the Murphy Report and the Pottinger Memorandum, as well as the three appendices to the Task Force Report are the subject of dispute in this case.
In his FOIA request dated 7 February 1977 appellant sought the following: (1) any directive instructing the Civil Rights Division to review the investigation of the King assassination, (2) the Murphy Report and accompanying Pottinger Memorandum detailing the results of the inquiry conducted by the Civil Rights Division, (3) any press release from the Civil Rights Division on the review of the King assassination, (4) any directive instructing the Office of Professional Responsibility of the Department to complete the review of the investigation of Dr. King's assassination, (5) any directive to the Task Force setting forth its purpose, and (6) the Task Force Report detailing the results of the Task Force study of the King assassination. 8 Appellant was provided with complete copies of the documents identified in items 1, 3, and 4 of his request and was advised that no documents existed responsive to item 5 of his request. 9 Items 2 and 6 thus remain subject to demand.
In response to item 2, appellant initially was denied access to the Murphy Report and Pottinger Memorandum on the ground that these documents had been classified in their entirety on 9 April 1976 and thus were exempt from disclosure under Exemption 1 of the FOIA. 10 Subsequently, on administrative appeal, certain portions of the documents, including the whole of the memorandum accompanying the Murphy Report, were declassified and released to appellant. 11 ] Other segments of the Murphy Report and Pottinger Memorandum still were withheld under Exemption 1, and also under Exemption 7(C) of the FOIA on the grounds that disclosure of these documents would constitute an unwarranted intrusion into the privacy of third parties. 12
In response to item 6 of appellant's request, appellant was provided with a copy of the Task Force Report by letter dated 23 February 1977. 13 By letter dated 10 March 1977 Lesar amended his request to include the three appendices to the Task Force Report. 14 Appendix A consists of eighteen exhibits and documents referred to in the body of the Report, and Appendix B contains the Task Force's typewritten notes on interviews of witnesses. Appendix C consists of twenty volumes: twelve of which are summaries of all FBI documents reviewed by the Task Force; and eight of which are non-Departmental records including, inter alia, Memphis and Atlanta police department records furnished to the Task Force for its review of the King assassination. In response to appellant's letter, the Office of Professional Responsibility initially withheld the materials in Appendix A and Appendix C and released every page of Appendix B, with minor deletions. 15
On administrative appeal the Department released certain additional materials from the appendices, and continued to withhold the remaining documents pursuant to various exemptions to the FOIA 16 and pursuant to the order of the United States District Court in Lee v. Kelley. 17 In Lee v. Kelley the district court had ordered the FBI's actual surveillance records and tapes on Dr. King and his associates placed under seal for fifty years. On the basis of this order, the Department concluded that it was not permitted to disclose those volumes of Appendix C to the Task Force Report that summarize the sealed surveillance materials. 18
On 21 April 1977 appellant brought suit in the United States District Court for the District of Columbia seeking disclosure of those documents still withheld. 19 In response to appellant's Vaughn v. Rosen motion 20 the Department on 1 February 1978 filed affidavits describing in detail the documents at issue and explaining the treatment of appellant's FOIA request. 21 The Department filed additional affidavits in support of its motion for summary judgment on 11 May 1978; 22 appellant filed a cross-motion for summary judgment on 12 May 1978 with supporting affidavits. 23 On the basis of the affidavits submitted and an in camera inspection of certain of the documents, the district court entered summary judgment for the Department on 31 July 1978. 24
The district court resolved the various issues before it according to the categories of materials in dispute: (1) the Task Force summaries of the FBI's electronic surveillance records and tapes of Dr. King; (2) classified information; (3) code symbols that refer to FBI informants; (4) privacy materials; and (5) Memphis and Atlanta police records, which were furnished to the Task Force in aid of its investigation of the assassination.
First, regarding the summaries of the sealed surveillance materials, Judge Gesell had informed the Department in a hearing held on the cross-motions for summary judgment that these documents might be subject to the FOIA even though the underlying surveillance records had been placed under seal. 25 Accordingly, the Department released certain portions to appellant, withheld other excerpts under various exemptions to the FOIA, and continued to withhold fifteen pages in their entirety solely in reliance on the district court order in Lee v. Kelley. After examining the affidavits submitted for these materials, Judge Gesell sustained the claimed exemptions under the FOIA, 26 but ruled that the pages withheld pursuant to the order in Lee v. Kelley must be released. 27 The latter ruling is not at issue here.
Second, the Department withheld certain portions of the Murphy Report, the Pottinger Memorandum, and Appendices A and C to the Task Force Report pursuant to Exemption 1 of the FOIA. On the basis of the...
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