Kiraly v. F.B.I.

• Citation: 728 F.2d 273
• Decision Date: 16 February 1984
• Docket Number: No. 82-3265,82-3265
• Parties: William KIRALY, Plaintiff-Appellant, v. FEDERAL BUREAU OF INVESTIGATION; William H. Webster, Director; Cleveland Office, FBI; Stanley Czarnecki, Special Agent; Dept. of Justice; Benjamin R. Civilletti, Acting Attorney General; Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms; John G. Krogman, Director, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 273

728 F.2d 273

William KIRALY, Plaintiff-Appellant, v. FEDERAL BUREAU OF INVESTIGATION; William H. Webster Director; Cleveland Office, FBI; Stanley Czarnecki Special Agent; Dept. of Justice; Benjamin R. Civilletti Acting Attorney General; Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms; John G. Krogman Director, Defendants-Appellees.

No. 82-3265.

United States Court of Appeals, Sixth Circuit.

Argued Nov. 17, 1983.

Decided Feb. 16, 1984.

Richard J. Aynes, argued, Akron, Ohio, for plaintiff-appellant.

Randolph Baxter, argued, Asst. U.S. Atty., Cleveland, Ohio, for defendants-appellees.

Before MERRITT and WELLFORD, Circuit Judges, and WEICK, Senior Circuit Judge.

WELLFORD, Circuit Judge.

William Kiraly appeals the summary judgment entered against him in his suit to enforce disclosure of certain documents pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. Sec. 552. ¹ After conducting an in camera review, the district court concluded that the documents were properly withheld under the exemption provisions of the FOIA. 5 U.S.C. Sec. 552(b). We AFFIRM.

On the morning of May 12, 1975, the office-residence of Daniel Greene was destroyed by an explosion. Mr. Greene escaped without serious injury. Kiraly was later tried and convicted of aggravated arson and conspiracy to commit aggravated murder. (Northern District of Ohio, Case No. C-78-398). His conviction was affirmed by the State Court of Appeals. State v. Kiraly, 56 Ohio App.2d 37, 381 N.E.2d 649 (1977).

The state's theory was that Kiraly was involved in organized crime, and the attempt on Mr. Greene was a part of a power struggle. In an effort to develop a habeas corpus petition, Kiraly, on August 4, 1978, submitted administrative reports to the Federal Bureau of Investigation (FBI) and the Bureau of Alcohol, Tobacco and Firearms (ATF). Pursuant to FOIA, he sought all information concerning himself and certain other individuals, which may have related in some way to his criminal conviction.

On September 12, 1978, the FBI informed Kiraly that no information regarding individuals other than himself would be disclosed without written authorization from such person. Subsequently, the FBI released a number of documents relating to Kiraly. In making this disclosure, the FBI edited certain information and totally withheld other material, invoking FOIA exceptions under 5 U.S.C. Sec. 552(b). ² No information pertaining to individuals other than the appellant, however, was turned over. The pertinent provisions of FOIA are exemptions (b)(6) and (b)(7)(C); records will be disclosed unless they constitute an unwarranted invasion of personal privacy. Therefore, if there is no written consent to release the records of a third party and if the disclosure of the records would constitute an unwarranted invasion of privacy, both FOIA and the Privacy Act forbid release. If disclosure would not be an unwarranted invasion of privacy, FOIA would require disclosure and the Privacy Act would not prohibit release. Accordingly, the FOIA exemptions are controlling.

On October 11, 1979, appellant filed suit in the United States District Court for the Northern District of Ohio, against the defendants, including the FBI, to require disclosure of the materials which had been withheld. ³ The district court granted the defendants' summary judgment motion.

For purposes of this appeal, Kiraly has limited the documents he is seeking to those concerning Daniel Greene, now deceased, ⁴ and those relating to another witness who testified at Kiraly's state trial. ⁵ We embrace the thoughtful opinion of District Judge John M. Manos, and borrow heavily from it in reaching our conclusions. ⁶

I.

We acknowledge, as a matter of general principle, that the FOIA "mandates a policy of broad disclosure of government documents when production is properly requested." Church of Scientology v. U.S. Dept. of Defense, 611 F.2d 738, 741-42 (9th Cir.1979). When a request is made, an agency may withhold a document, or portions thereof, only if the information contained in the document falls within one or more of nine statutory exemptions to the disclosure requirement contained in Sec. 522(b). The pertinent exemption in this case allows an agency to withhold:

investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would ... (C) constitute an unwarranted invasion of personal privacy (D) disclose the identity of a confidential source and, in the case of a record compiled by a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence investigation, confidential information furnished only by the confidential source....

5 U.S.C. Sec. 552(b)(7)(C) and (D).

We have two tasks in reviewing judgments on FOIA issues: (1) to determine whether the district court had an adequate factual basis for its decision, and (2) if an adequate factual basis was established, the court must determine whether the decision below was clearly erroneous. Church of Scientology v. U.S. Dept. of Defense, 611 F.2d at 742.

Section (a)(4)(B) of FOIA places the burden of establishing the exemption on the agency. The courts have developed several methods to allow agencies to sustain their burden without disclosing the information in the process. The judges may examine the documents in camera. However, the courts have also recognized that if "the documents in issue constitute hundreds of pages" such an inspection would be a poor use of judicial resources. Weissman v. Central Intelligence Agency, 565 F.2d 692 (D.C.Cir.1977); 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). "An agency should be given the opportunity, by means of detailed affidavits or oral testimony, to establish the satisfaction of the District Court that the documents sought fall clearly beyond the range of material ... [subject to disclosure]." Vaughn, id. at 826, n. 20, citing Environmental Protection Agency v. Mink, 410 U.S. 73, 93, 93 S.Ct. 827, 838, 35 L.Ed.2d 119 (1973). The court in Vaughn further held that "[a]n analysis sufficiently detailed would not have to contain factual descriptions that if made public would compromise the secret nature of the information, but could ordinarily be composed without excessive reference to the actual document." 484 F.2d at 826-27. The court "must be satisfied that proper procedures have been followed, and that by its sufficient description the contested document logically falls into the category of the exemption indicated." Weissman, 565 F.2d at 697.

In this case, the district court conducted an in camera inspection of certain FBI documents, and was provided with detailed affidavits of the agencies. The FBI's affidavit identified the file searched, explained why the file was established, disclosed the number of documents in the file, disclosed the number of pages in each document, and explained why the exemptions were claimed. The ATF's affidavit categorized the documents, identified each document by date and number of pages, explained why the exemptions were claimed, and often summarized the subject matter of the document. The district court was satisfied that "the documents withheld fall clearly beyond the range of the material subject to disclosure." We find that the district court did have an adequate factual basis for its decision. Irons v. Bell, 596 F.2d 468, 471 n. 6 (1st Cir.1979); Church of Scientology v. U.S. Dept. of Defense, 611 F.2d at 743; Ingle v. Department of Justice, 698 F.2d 259 (6th Cir.1983).

This Court must therefore determine whether the trial court was clearly erroneous in reaching its decision. Church of Scientology v. U.S. Dept. of Defense, 611 F.2d at 743. See, Mead Data Central, Inc. v. United States Department of the Air Force, 566 F.2d 242, 251 (D.C.Cir.1977). Both parties have recognized the two pronged test set forth by this Court to determine whether disclosure would constitute an unwarranted invasion of personal privacy under (b)(7)(C). The first inquiry is whether public access to the information sought constitutes an invasion of privacy. If there is such an invasion, the question becomes whether the invasion is justified by any countervailing public benefit from its disclosure. Madeira Nursing Center, Inc. v. N.L.R.B. Region No. 9, 615 F.2d 728 (6th Cir.1980).

In the present case the information withheld is from the investigatory records of law enforcement agencies. Many of the deletions concern "people who were investigated for suspected criminal activity or who were otherwise mentioned therein, but who were not indicted or tried." Librach v. Federal Bureau of Investigation, 587 F.2d 372, 373 (8th Cir.1978), cert. denied, 440 U.S. 910, 99 S.Ct. 1222, 59 L.Ed.2d 459 (1979). Disclosure of such information could subject a person to embarrassment, harassment and even physical danger. In Librach the court held that disclosure of such information was "a clearly unwarranted invasion of personal privacy." Id. In Keuhnert v. FBI, 620 F.2d 662 (8th Cir.1980), the court, in ruling on exemptions claimed by the FBI, held that "information on persons other than the plaintiff who were mentioned in reports concerning the plaintiff" was properly withheld under exemption (b)(7)(C). See also Ingle v. Department of Justice, supra.

Kiraly argues that because Greene is now dead, Greene has no surviving privacy interests which would justify the withholding of documents or other information relating to him. As support for his argument, Kiraly cites Cordell v. Detective Publication, Inc., 419 F.2d 989 (6th Cir.1969), and Maritote v. Desilu Productions, 345 F.2d 418 (7th Cir.1965). These cases stand for the traditional torts law proposition that the right to recovery for invasion of privacy is purely personal and "lapses with the death of the person who enjoyed it." Co...