673 F.2d 408 (D.C. Cir. 1982), 81-1907, Pratt v. Webster

Docket Nº:81-1907, 81-1922.
Citation:673 F.2d 408
Opinion Judge:HARRY T. EDWARDS, Circuit Judge:
Party Name:Elmer G. PRATT, v. William H. WEBSTER, Director, Federal Bureau of Investigation, et al., Appellants. Elmer G. PRATT v. William H. WEBSTER, Director, Federal Bureau of Investigation, et al., Appellants.
Attorney:Susan Sleater, Dept. of Justice, Washington, D. C., with whom Charles F. C. Ruff, U.S. Atty., and Leonard Schaitman, Dept. of Justice, Washington, D. C., were on the brief for appellants. Jonathan W. Lubell, New York City, for appellee. David G. Lubell, Newark, N. J., and William H. Schaap, Washi...
Judge Panel:Before MacKINNON, ROBB and EDWARDS, Circuit Judges.
Case Date:January 22, 1982
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 408

673 F.2d 408 (D.C. Cir. 1982)

Elmer G. PRATT,

v.

William H. WEBSTER, Director, Federal Bureau of Investigation, et al., Appellants.

Elmer G. PRATT

v.

William H. WEBSTER, Director, Federal Bureau of Investigation, et al., Appellants.

Nos. 81-1907, 81-1922.

United States Court of Appeals, District of Columbia.

January 22, 1982

         Argued Nov. 19, 1981.

         Plaintiff filed a proceeding against the Federal Bureau of Investigation relying on provisions of the Freedom of Information Act and the Privacy Act. The United States District Court for the District of Columbia, 508 F.Supp. 751, Barrington D. Parker, J., held that certain documents were not the result of any legitimate law enforcement purpose, and thus ordered their disclosure. The FBI appealed. The Court of Appeals, Harry T. Edwards, Circuit Judge, held that federal agencies, including the FBI, must meet the threshold requirements of the exemption from disclosure for investigatory records compiled for law enforcement purposes before they may withhold requested documents on the basis of any of its subparts, and that the FBI sufficiently established that those documents were exempt from disclosure as investigatory records, even though methods used by the FBI in its counterintelligence program may have been improper.

         Reversed and remanded.

Page 409

         Appeals from the United States District Court for the District of Columbia (D.C.Civil Action No. 78-1688).

          Susan Sleater, Dept. of Justice, Washington, D. C., with whom Charles F. C. Ruff, U.S. Atty., and Leonard Schaitman, Dept. of Justice, Washington, D. C., were on the brief for appellants.

          Jonathan W. Lubell, New York City, for appellee. David G. Lubell, Newark, N. J., and William H. Schaap, Washington, D. C., also entered appearances for appellee.

          Before MacKINNON, ROBB and EDWARDS, Circuit Judges.

         OPINION

         HARRY T. EDWARDS, Circuit Judge:

          This case is a logical sequel to the decision of this Circuit a little more than a year ago in Abramson v. Federal Bureau of Investigation, 658 F.2d 806 (D.C.Cir.1980), cert. granted, 452 U.S. 937, 101 S.Ct. 3079, 69 L.Ed.2d 951 (1981) (No. 80-1735). In Abramson we held, inter alia, that documents in the possession of the Federal Bureau

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of Investigation (" FBI" ) must satisfy the threshold language of Exemption 7 of the Freedom of Information Act (" FOIA" ) 1-" investigatory records compiled for law enforcement purposes" -before any of the constituent parts of Exemption 7 may be asserted as a basis for nondisclosure of agency records requested under the Act.2Abramson, 658 F.2d at 811-12. Because the District Court in Abramson found that certain of the requested records (i.e., " name check" summaries) were compiled solely for political purposes, and because the Government did not challenge that finding on review, see id. at 810-11, that case presented the question of whether the threshold language of Exemption 7 was to have any application to the FBI. Based on the plain meaning of section (b)(7) of FOIA, we held that it did.

         The decision in Abramson, however, did not reach one of the principal questions raised by this appeal. Because the Government did not challenge the finding in Abramson that the records at issue were not compiled for law enforcement purposes, we had no occasion to pass upon the appropriate judicial test for determining whether documents held by the FBI are indeed " investigatory records compiled for law enforcement purposes." This case, however, requires us to express and apply such a test.

         In this case, Elmer G. (" Geronimo" ) Pratt, a former officer of the Black Panther Party, requested from the FBI all documents and records filed under his name and all other records containing his name or pertaining to him. Through his original request to the FBI, administrative appeals within the agency, and his action in the District Court, Pratt has obtained over 1,200 documents in whole or in part. At issue on this appeal is the proper treatment to be accorded twenty documents, all of which were generated by the FBI's Counter-Intelligence Program (" COINTELPRO" ) activities directed at the Black Panther Party.

         The District Court held that the disputed documents were not the result of " any legitimate law enforcement purpose," Pratt v. Webster, 508 F.Supp. 751, 761 (D.D.C.1981), and hence did not satisfy the Exemption 7 threshold. Although we note that certain of these documents evince illegal FBI practices, we are constrained to find that the records sought derived at least in part from a purpose to enforce and prevent violations of the criminal laws. In light of this finding, we must reverse the decision of the District Court denying the Government's requests for nondisclosure. We remand so that the District Court may consider the proper application of the subparts of Exemption 7 to the twenty documents in question.

         I. BACKGROUND

         A. Factual Background

          During the late 1960s, plaintiff-appellee Pratt was the Deputy Minister of Defense for the Southern California Branch of the Black Panther Party (" BPP" ). During the late 1960s and early 1970s the Black Panther Party was the object of intensive scrutiny by the FBI as an allegedly subversive, and potentially violent,

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domestic organization.3 Pratt's position in the BPP made his activities a likely subject of concern and surveillance by the FBI.

         On July 28, 1972, Pratt was found guilty of murder and robbery in a California state court and, on August 28, 1972, he was sentenced to a term of life imprisonment, which he is presently serving in San Quentin Prison.4 The murder for which Pratt was convicted occurred on December 18, 1968, in Santa Monica, California. Pratt has consistently maintained his innocence of that crime, claiming that on the night of the murder he was attending a meeting with BPP officials in Oakland, California, several hundred miles from Santa Monica.

         Based in part on his belief that the FBI possessed documents that would verify his presence in Oakland on December 18, 1968, and thus substantiate his alibi, Pratt filed two FOIA requests with the FBI. Complaint PP 3, 8, 12, 25, reprinted in Jt.App. at 7-9, 12. On June 5, 1976, Pratt requested then FBI Director Clarence Kelley to provide him with:

All files, records, memoranda, or other data or materials filed under my name or obtainable by your agency by searching through other files and materials for documents which contain my name.

         On May 20, 1977, the FBI released 499 partially expurgated pages to Pratt. Pratt appealed certain deletions within the agency and, on September 8, 1977, he made a supplemental request for " any records pertaining to him which may be contained in the Bureau's files concerning" five named organizations and twenty-two named individuals.

         Through his supplemental request and the processing of his administrative appeals, Pratt eventually obtained access to over 1,000 documents, totaling several thousand pages. The FBI deleted portions of many of these documents, claiming that the deletions were justified by Exemptions 1, 2, 7(C), 7(D), 7(E) and 7(F) of FOIA.5 Because Pratt and his counsel believed that the deletions made in the released documents did not comply with FOIA and that the FBI had not fully searched its files, Pratt instituted this action in the District Court seeking to compel a further search and full disclosure.

         B. Proceedings in the District Court

         The District Court directed the FBI to submit affidavits, pursuant to Vaughn v. Rosen, 484 F.2d 820 (D.C.Cir.1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974), indexing and explaining the agency's deletions. The court determined that the first Vaughn index was inadequate and ordered the FBI to submit new and more detailed Vaughn filings. These were submitted in November 1979.

          On April 6, 1979, while the District Court proceedings were pending, Congressman Paul McCloskey requested the FBI " to determine whether there is any evidence in the files to indicate the possibility of Pratt's innocence or doubt as to Pratt's guilt" of the December 18, 1968 Santa Monica murder. In response to Congressman McCloskey's request, the FBI conducted a search

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of its California field offices.6 On June 18, 1980, as a result of this search, the FBI released to Pratt 1,290 pages of previously withheld documents.

         On February 15, 1980, the FBI moved for summary judgment based on its second Vaughn index and the completeness of its document production. On February 12, 1981, the District Court denied the FBI's motion for summary judgment. Pratt v. Webster, 508 F.Supp. 751 (D.D.C.1981). The District Court ordered all documents containing redactions based on Exemptions 1 and 7(E) submitted for in camera review. 508 F.Supp. at 756-58, 760-61. The deletions from partially disclosed documents based on Exemptions 2, 7(C) and 7(D) were upheld, id. at 758-60, with the exception of nine documents generated by COINTELPRO activities. The District Court held that these COINTELPRO documents could not " reasonably be considered or interpreted as generated through any legitimate law enforcement purpose," and hence could not " be redacted pursuant to exemption (b)(7)." Id. at 761. Finally, the District Court ordered the agency to explain certain inadequacies in its search of FBI Headquarters files and expanded the scope of Pratt's FOIA suit to include all documents generated by COINTELPRO concerning Pratt. Id. at 762-64.

         In response to an Order of the District Court, dated February 13, 1981, the FBI identified for the court sixteen COINTELPRO...

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