645 F.2d 1213 (3rd Cir. 1981), 79-2414, Ferri v. Bell

Docket Nº:79-2414.
Citation:645 F.2d 1213
Party Name:Francis Rick FERRI, Appellant, v. BELL, The Honorable Griffin, United States Attorney General, United States Department of Justice. Griffith, Blair, U. S. Atty. Western District of Pa., Thornburg, Richard, Former U. S. Atty. Western District of Pa. Special Agent in Charge FBI Operations in the Western Dist. of Pa., Former Special Agent in Charge FB
Case Date:April 01, 1981
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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645 F.2d 1213 (3rd Cir. 1981)

Francis Rick FERRI, Appellant,


BELL, The Honorable Griffin, United States Attorney General,

United States Department of Justice. Griffith, Blair, U. S.

Atty. Western District of Pa., Thornburg, Richard, Former U.

S. Atty. Western District of Pa. Special Agent in Charge FBI

Operations in the Western Dist. of Pa., Former Special Agent

in Charge FBI Operations in the West Dist. of Pa.

No. 79-2414.

United States Court of Appeals, Third Circuit

April 1, 1981

Submitted under Third Circuit Rule 12(6) Jan. 19, 1981.

As Amended April 9, 1981.

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[Copyrighted Material Omitted]

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Francis Rick Ferri, appellant pro se.

Carlon M. O'Malley, Jr., U. S. Atty., Joseph F. Cimini, Asst. U. S. Atty., Scranton, Pa., for appellee; Thomas W. Richardson, Federal Bureau of Investigation, Washington, D. C., of counsel.

Before ADAMS, GIBBONS and VAN DUSEN, Circuit Judges.


GIBBONS, Circuit Judge:

The instant appeal arises out of a civil action brought under the Freedom of Information Act (FOIA), 5 U.S.C. § 552(a)(4)(B), to compel the Justice Department to produce certain documents which it claims are exempt. At the time this suit commenced, appellant Ferri was serving a 31 year sentence in the United States Penitentiary at Lewisburg, Pennsylvania, for mail fraud, influencing a government witness, and firearms violations. He sought to compel production of (1) his sentencing judge's recommendation, Form 235; (2) the "rap sheet" i. e. conviction and arrest record 1 of one Lynn Dunn, and (3) information pertaining to the purchase, use, and inventory control of electronic eavesdropping devices by the Justice Department in Western Pennsylvania. Ruling on cross-motions for summary judgment, the district court granted Ferri access to the conviction record of Dunn, but denied all his other requests, including the one for Dunn's arrest record. On appeal, Ferri protests the withholding of this latter record, as well as the blanket denial of any information regarding the purchase and control of surveillance equipment. He does not press his claim to the Form 235 sentencing recommendation.


Ferri first requested disclosure by letters directed or referred to the FBI. Dunn's record of prior convictions was first sought by letter dated January 3, 1977. Twice being rebuffed, he appealed to the Justice Department's Office of Privacy and Information Appeals, which informed him of its formal denial on November 8, 1977.

Processing of Ferri's request for information pertaining to the procurement and circulation of surveillance equipment proceeded much more slowly. That request was first submitted by letter on July 26, 1976. The letter contained five questions, set out in the margin. 2 By letter dated October 13, 1976, Ferri was asked to reformulate his request in order to provide a clearer description of the information he desired. No offer of assistance was extended, despite Justice Department regulations making that practice mandatory. See 28 C.F.R. § 16.3(d)(2) (1980). Immediately, Ferri attempted to comply by expanding his request to nine, more lengthy questions. The final submission asked:

1) From 'whom' does the F.B.I. in Pittsburgh, Pa. obtain its electronic surveillance

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equipment, wire tapping devices, honing devices, listening bugs, pen registers, long range honing devices, etc.?

2) The method used to request such usage of these devices? Copies of applications not limited to wire tapping applications but all devices.

3) The method used to order said devices?

4) The inventory control of said devices? The parties whose responsibility was the inventory control?

5) The names of the F.B.I. personnel trained and authorized to operate each of the above said type devices?

6) Does the F.B.I. 'loan' any of these devices to other gov. agencies? The method(s) of? Whom? The inventory listing of such?

7) Does the F.B.I. authorize State police authorities to assist them in using these devices, or any local police agency?

8) The specific number of such devices in the control etc. of the F.B.I. in each of the above items. The specific number of each device in the F.B.I. offices or control thereof agents etc. from the years of 1971 thru 1973, the weekly summary reports thereof etc.

9) Does this office know of any usage of these devices in relation to the undersigned?

It was almost a year before Ferri heard from the FBI again. 3 By letter dated September 27, 1977, and signed by the then Director of the FBI, Clarence M. Kelley, the questions were answered to the following extent:

A search of our electronic surveillance indices revealed no record identifiable with you.

All electronic devices used by the FBI are procured by FBI Headquarters, where inventory control is maintained. Electronic surveillance is conducted under the authority of a court order of the Attorney General of the United States.

We may loan, upon formal request, equipment to other Government agencies for their use.

The FBI does not seek the assistance of State or local police authorities in using electronic devices.

All the other requested information was deemed exempt from disclosure under various provisions of 5 U.S.C. § 552(b). Ferri appealed to the Office of Privacy and Information Appeals, which finally denied his request on May 15, 1978. The reason given for denial was cast somewhat differently than that given in previous correspondence. The agency's obligation under FOIA, it was explained, did not include answering "questions," but was limited to releasing "reasonably described records." Because Ferri had submitted requests for information, rather than records, it was suggested that the plaintiff reformulate his request specifying those documents he desired. Again, though, no offer of assistance was extended. Having exhausted his administrative appeals to the extent required by statute, Ferri filed his complaint in district court on August 25, 1978.


The complaint, insofar as it named as defendants local United States attorneys and FBI agents in charge of operations for the Western District of Pennsylvania, was dismissed. The remaining defendant, the Attorney General of the United States, was served with process and filed an answer. Thereupon, Ferri made numerous attempts to obtain and compel discovery. None of his discovery motions were ever ruled upon by the district court. Meanwhile, the Attorney General moved for summary judgment,

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submitting two supporting affidavits. One was by the Bureau of Prisons administrator in charge of FOIA requests, who explained why the Form 235 sentencing recommendation should not be disclosed. The other affidavit, and the only one which concerns us on appeal, was executed by Martin Wood, Special Agent, assigned to the FOIA Branch of the FBI's Records Management Division in Washington, D.C. Ferri filed a cross motion for summary judgment. After some additional briefing, but without the benefit of any discovery, testimony or in camera inspection, the court announced its decision denying access to all requested documents except Dunn's conviction record.


The court based its refusal to grant disclosure of Lynn Dunn's arrest records on both Exemption 6, 5 U.S.C. § 552(b)(6) (for personnel, medical, and similar files, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy) and Exemption 7(C), 5 U.S.C. § 552(b)(7)(C) (for investigatory records compiled for law enforcement purposes to the extent such records would constitute an unwarranted invasion of personal privacy). 4 Although the error was harmless, we believe reliance on section (b)(6) was inappropriate. The common denominator of the files covered by Exemption 6 is their "personal quality." Wine Hobby USA, Inc. v. Internal Revenue Service, 502 F.2d 133, 135 (3d Cir. 1974). Because of the societal significance attached to the event, an arrest clearly lacks the personal quality of a medical examination. Cf. Washington Post Co. v. Department of State, No. 80-1509 (D.C.Cir. Feb. 24, 1981) (citizenship records not "similar files" because citizenship is not an "intimate" detail). On the other hand, it seems logical to apply Exemption 7(C) in cases involving rap sheets, since such records more clearly fit the description of "investigatory records compiled for law enforcement purposes." 5 Accord, Tennessean Newspaper, Inc. v. Levi, 403 F.Supp. 1318 (M.D.Tenn.1975); cf. Lamont v. Department of Justice, 475 F.Supp. 761, 781 (S.D.N.Y.1979).

Exemption 7(C)'s protection of personal privacy is not absolute. As the trial court recognized, the proper approach to Ferri's request under a privacy-based exemption such as section 7(C) is a de novo balancing test, weighing the privacy interest and the extent to which it is invaded, on the one hand, against the public benefit that would result from disclosure, on the other. Committee on Masonic Homes of the R. W. Grand Lodge v. NLRB, 556 F.2d 214, 220 (3d Cir. 1977). See also Department of Air Force v. Rose, 425 U.S. 352, 373, 96 S.Ct. 1592, 1604, 48 L.Ed.2d 11 (1976); Wine Hobby USA Inc. v. IRS, supra; Tennessean Newspaper, Inc. v. Levi, supra.

The court's first task then is to evaluate whether disclosure of the arrest record would be an invasion of privacy. The privacy interest at stake in arrest records requested by third parties has previously been examined most often in the context of media access to information concerning arrested individuals. The issue was confronted in Tennessean Newspaper, Inc. v. Levi, supra. The Levi court held that arrests, in general, were "matters of...

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