Weisberg v. US Dept. of Justice

• Decision Date: 05 April 1983
• Docket Number: No. 82-1072.,82-1072.
• Citation: 705 F.2d 1344
• Parties: Harold WEISBERG, Appellant, v. U.S. DEPARTMENT OF JUSTICE, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

705 F.2d 1344

Harold WEISBERG, Appellant, v. U.S. DEPARTMENT OF JUSTICE, et al.

No. 82-1072.

United States Court of Appeals, District of Columbia Circuit.

Argued September 28, 1982.

Decided April 5, 1983.

As Amended April 5, 1983.

COPYRIGHT MATERIAL OMITTED

James H. Lesar, Washington, D.C., for appellant.

William G. Cole, Atty., Dept. of Justice, Washington, D.C., of the bar of the Supreme Court of Tennessee pro hac vice by special leave of Court, with whom Stanley S. Harris, U.S. Atty., and Leonard Schaitman, Atty., Dept. of Justice, Washington, D.C., were on the brief, for appellees.

Before MacKINNON and GINSBURG, Circuit Judges, and McGOWAN, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge McGOWAN.

McGOWAN, Senior Circuit Judge:

This is Harold Weisberg's fourth—and final—appearance before this court in connection with the Freedom of Information Act suit he initiated in 1970 to uncover documents bearing on the assassination of President Kennedy. We find that the government has finally proven the adequacy of its search for all documents Weisberg has requested, and accordingly we affirm the District Court's grant of summary judgment.

I

In 1970 Weisberg brought suit in District Court to compel the Federal Bureau of Investigation (FBI) to release spectrographic analyses of several items of evidence from the Kennedy assassination. See Weisberg v. U.S. Department of Justice, 489 F.2d 1195, 1196-97 (D.C.Cir.1973) (en banc) "Weisberg I", cert. denied, 416 U.S. 993, 94 S.Ct. 2405, 40 L.Ed.2d 772 (1974). The FBI claimed that it had properly denied Weisberg's request for these analyses under exemption 7 of the Freedom of Information Act ("FOIA" or "the Act"), a provision protecting investigatory files compiled for law enforcement purposes. See Act of June 5, 1967, Pub.L. No. 90-23, 81 Stat. 54, 55. Sitting en banc in 1973, this court upheld the FBI's exemption claim. Weisberg I. The following year, however, Congress amended the Act and narrowed the scope of exemption 7. Act of Nov. 21, 1974, Pub.L. No. 93-502, § 2, 88 Stat. 1561, 1563-64 (codified at 5 U.S.C. § 552(b)(7) (1976)).

In 1975, on the first day the new amendment took effect, Weisberg brought suit to speed up compliance with a renewed request, broadened to seek analyses of certain Kennedy assassination evidence by means not only of spectrographic testing but of neutron activation testing as well.¹ In his request to the Department of Justice, Weisberg demanded not to be misunderstood: he sought "only the final scientific reports on these tests. Not raw materials, not laboratory work, only the conclusions as embodied in the full report, or the report itself." Appendix ("App.") 342 (Nov. 27, 1974 letter from Weisberg to Deputy Attorney General). Noting that much of Weisberg's request as so limited was available simply through the National Archives, the Attorney General wrote Weisberg six days after he filed suit to see if he would be interested in obtaining any of the FBI's materials on the assassination beyond the "`final reports'" Weisberg requested. R. 12 (attachment B). To discuss the Attorney General's offer, Weisberg and his attorney attended a meeting with FBI officials on March 14, 1975; Weisberg said he would indeed be interested in the raw data pertaining to the spectrographic testing and the neutron activation analysis. R. 12 (Weisberg affidavit ¶¶ 23-24). To reduce his copying expenses, Weisberg asked not to receive a specified subset of the materials, including the photographic plates from the spectrographic examinations. As for the records Weisberg did want, the FBI furnished several installments over the next few weeks. With an installment sent April 10, 1975, the FBI told Weisberg it had fully responded to his FOIA request as supplemented by his requests at the March 14 meeting. R. 17 (attachment to exhibit 1).

Weisberg insisted that the FBI was still withholding relevant documents, a fact he attempted to establish through interrogatories. The District Court, however, quashed the interrogatories as "oppressive," found that the government had "complied substantially" with Weisberg's demands, and accordingly dismissed the case as moot. Transcript of May 21, 1975, Hearing at 22; Transcript of July 15, 1975, Hearing at 19. Noting that Weisberg had been denied the chance to establish his case through interrogatories or depositions, we reversed and remanded for further discovery. Weisberg v. U.S. Department of Justice, 543 F.2d 308 (D.C.Cir.1976) "Weisberg II". Without attempting "to unravel the conflicting claims, assertions, or responses," we found a material factual dispute in the question whether relevant but unreleased documents still existed. Id. at 310-11.

In remanding the case, we chided Weisberg for addressing his questions only to the present custodians of the files and suggested that he attempt to question those with firsthand knowledge of the tests conducted and records generated. Id. at 311. Thus, on remand, Weisberg deposed four FBI agents involved with testing of Kennedy assassination evidence. He also received answers to interrogatories and to requests for production of documents from the Department of Justice and the Energy Research and Development Administration. Finally, nine months after our remand, Weisberg attempted to depose FBI Special Agent John W. Kilty, who had executed two affidavits before the remand claiming that his searches of FBI files revealed no documents within Weisberg's request that the agency had not already furnished. The District Court, however, found that the Kilty deposition would be "an unnecessary burden," R. 39, and awarded the government summary judgment in an opinion that discussed in detail the results of the discovery to date and concluded that the FBI had released all relevant documents still in its possession. Weisberg v. U.S. Department of Justice, 438 F.Supp. 492 (D.D.C.1977) "Post-Weisberg-II remand".

On the third appeal to this court, the government offered two arguments in support of the District Court's summary judgment award. First, it said that the two Kilty affidavits attested to thorough searches for all relevant documents. Second, even apart from the searches, it argued that the District Court opinion had shown that the records Weisberg said the agency had still not released either were no longer in the FBI's possession or had never been created in the first place. We found these arguments insufficient and remanded for further proceedings. Weisberg v. United States Department of Justice, 627 F.2d 365 (D.C.Cir.1980) "Weisberg III". In the first place, we found the Kilty search affidavits too conclusory to justify summary judgment: they "do not denote which files were searched or by whom, do not reflect any systematic approach to document location, and do not provide information specific enough to enable Weisberg to challenge the procedures utilized." Id. at 371. We also explained that our suggestion in Weisberg II that Weisberg question those with direct knowledge of the tests conducted was not intended to limit the discovery on remand to those persons, id. at 367 n. 13, and that the Kilty deposition was therefore fully appropriate. As for the government's second claim, we held that the evidence cited by the District Court, in the absence of an adequately documented search, was insufficient to show that no material factual disputes remained concerning whether the agency had released all relevant documents.

On this last point, we found the government unable to carry its burden of showing it had provided all relevant documents with respect to three specific categories. First, Weisberg pointed out that the FBI had not given him a copy of the spectrographic plate from a test of a lead smear found on a curbstone in Dealey Plaza; the test was apparently designed to determine whether the smear might have been caused by a bullet involved in the assassination.² The government admitted that the plate once existed, but pointed to a statement by an FBI agent that the plate must have been discarded in one of the laboratory's periodic housecleanings. See Weisberg III, 627 F.2d at 369. Second, Weisberg said he had not received the computer printouts from neutron activation analysis performed on specimen Q3, a bullet fragment found on the right front seat of the presidential limousine, and on specimen Q15, scrapings of residue from the car's windshield. The District Court speculated that these printouts might not have been kept because they duplicated information that agents who analyzed the printouts had recorded on worksheets, copies of which had already been provided to Weisberg. Post-Weisberg-II remand, 438 F.Supp. at 503. Finally, FBI Special Agent Robert A. Frazier testified in a deposition after our remand in Weisberg II that he had asked another agent, possibly Paul Stombaugh, to examine the shirt President Kennedy wore the day of the shooting to determine whether two ragged holes near where the shirt buttoned together at the collar—one on the band of material bearing the buttons and one on the overlapping buttonhole band—coincided when the shirt was buttoned. Weisberg said that the results of an examination by Stombaugh, if indeed they were written down, had not been provided. The District Court noted that Frazier had testified before the Warren Commission that he had conducted this examination himself. Thus, the District Court was persuaded that Frazier's recent deposition testimony, more than a dozen years after the events in question, was simply mistaken, and that Stombaugh had not performed any such test at all. Id. at 502-03. We found the explanations with respect to all three areas of evidence to be plausible, but held that in the absence of a fully documented search they were not sufficient to satisfy the government's burden on summary judgment of showing that no material disputed facts remained. We remanded for the government to provide further...