Keys v. U.S. Dept. of Justice

• Decision Date: 02 October 1987
• Docket Number: No. 86-5485,86-5485
• Citation: 265 U.S.App.D.C. 189,830 F.2d 337
• Parties: Arthur B. KEYS, Jr., Appellant, v. UNITED STATES DEPARTMENT OF JUSTICE, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 337

830 F.2d 337

265 U.S.App.D.C. 189

Arthur B. KEYS, Jr., Appellant, v. UNITED STATES DEPARTMENT OF JUSTICE, et al.

No. 86-5485.

United States Court of Appeals District of Columbia Circuit.

Argued March 25, 1987.

Decided Oct. 2, 1987.

Appeal from the United States District Court for the District of Columbia (Civil Action No. 85-02588).

Carl S. Nadler, with whom William B. Bonvillian, Washington, D.C., were on the brief, for appellant.

Thomas J. McIntyre, Atty., Dept. of Justice, with whom Joseph E. diGenova, U.S. Atty., Royce C. Lamberth and R. Craig Lawrence, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellees.

Before RUTH BADER GINSBURG and WILLIAMS, Circuit Judges, and McGOWAN, Senior Circuit Judge.

WILLIAMS, Circuit Judge:

Appellant brought this action under the Freedom of Information Act ("FOIA"), 5 U.S.C. Sec. 552(a)(4)(B) (1982), seeking release of Federal Bureau of Investigation files relating to Louis Adamic. The District Court granted summary judgment to the government. Appellant challenges the FBI's reliance on exemptions for "personal privacy" and "confidential sources" (exemptions 7(C) and 7(D), 5 U.S.C. Sec. 552(b)(7)(C), (D) (1982), as amended by Pub.L. No. 99-570, Sec. 1802(a) (Oct. 27, 1986)), and the adequacy of the Vaughn index submitted in support of the FBI's motion for summary judgment. ¹

I. BACKGROUND

Louis Adamic was a prominent American author and social commentator of Yugoslav descent. His writings led to acquaintance with President and Mrs. Roosevelt, and he involved himself in issues of American foreign policy toward Yugoslavia during World War II. He was a staunch advocate of aid for Marshal Tito.

In November 1945, Elizabeth Bentley accused him of espionage, prompting a five-year FBI investigation of his activities. In September 1951, Adamic died under suspicious circumstances: his body was found in his burning farmhouse, with a bullet in his head and a rifle across his legs. While the New Jersey State Police Department concluded that Adamic had committed suicide, many in the Yugoslav community maintain that he was murdered. The FBI collected the police reports on Adamic's death as well as miscellaneous information from other sources, some of it suggesting foreign involvement in Adamic's death. Joint Appendix ("J.A.") at 145-46.

Arthur B. Keys, an author who is researching the American immigrant experience, submitted a FOIA request to the FBI for documents relating to Adamic. Specifically, he requested all the records in one main file on Adamic and any references to Adamic in a file on espionage activities led by Nathan Gregory Silvermaster. The FBI released most of the responsive material but withheld or redacted portions of some documents under several FOIA exemptions including, as relevant here, exemptions 1 (classified information) and 7 (law enforcement information). See 5 U.S.C. Sec. 552(b)(1), (7).

Upon exhausting his administrative remedies (which resulted in some supplemental releases), Keys filed this suit to compel disclosure of the information still withheld. ² The government moved for summary judgment, and supported its motion with several affidavits constituting a "Vaughn index" of the documents withheld. See 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). Keys noticed the depositions of three of the affiants to determine whether they had considered the age of the documents in question in assessing certain exemptions. The District Court stayed discovery and--on the basis of the Vaughn index and in camera review of all pages withheld in their entireties--granted the government's summary judgment motion. Keys now appeals, contending that exemptions 7(C) and 7(D) were improperly invoked and that the government's Vaughn index was inadequate. We affirm.

II. EXEMPTION7

The FBI claimed exemptions 7(C) or 7(D) for most of the information it withheld. Exemption 7 applies generally to "records or information compiled for law enforcement purposes...." 5 U.S.C. Sec. 552(b)(7) (1982), as amended by Pub.L. No. 99-570, Sec. 1802(a) (Oct. 27, 1986). But it exempts such documents from disclosure only to the extent that production of the information might be expected to produce one of six specified harms, see id. Sec. 552(b)(7)(A)--(F). Thus, in order to prevail on an exemption 7 claim, the government must bear its burden of demonstrating both the threshold law enforcement purpose and the danger that at least one of the specified harms would flow from disclosure. See FBI v. Abramson, 456 U.S. 615, 622, 102 S.Ct. 2054, 2059, 72 L.Ed.2d 376 (1982). We address the threshold requirement and then the specific requirements of exemptions 7(D) and 7(C).

A. Law Enforcement Purposes

Until recently, exemption 7 required a threshold showing that the documents in question were "investigatory records compiled for law enforcement purposes...." See 5 U.S.C. Sec. 552(b)(7) (1982). After the District Court entered judgment but prior to oral argument before us, the Freedom of Information Reform Act of 1986 broadened the scope of the exemption 7 threshold by replacing "investigatory records" with the more general term "documents or information." Pub.L. No. 99-570, Sec. 1802(a) (Oct. 27, 1986) (to be codified at 5 U.S.C. Sec. 552(b)(7)); see id. Sec. 1804(a) (amendment applies "to any civil action pending" on Oct. 27, 1986).

On the requirement that survives the 1986 amendments ("compiled for law enforcement purposes"), the controlling precedent is Pratt v. Webster, 673 F.2d 408 (D.C.Cir.1982). Central to Pratt 's analysis was its conclusion that a "criminal law enforcement agency['s]" invocation of "law enforcement purposes" warrants greater deference than do like claims by other agencies. 673 F.2d at 418. Rooted in the proposition that government agencies "typically go about their intended business," id. at 417-18, this view clearly survives the 1986 amendments.

In light of that deference, Pratt requires simply that the nexus between the agency's activity (under the old scheme, an "investigation") and its law enforcement duties "must be based on information sufficient to support at least 'a colorable claim' of its rationality." Id. at 421 (emphasis omitted). An objective finding of such a nexus is refutable only by "persuasive evidence that in fact another, nonqualifying reason prompted the investigation." Shaw v. FBI, 749 F.2d 58, 63 (D.C.Cir.1984). As the validity of this test does not depend in the slightest upon whether the agency activity in question is an "investigation" or a "compilation," it too remains unaltered by the 1986 amendments.

Application of Pratt 's nexus test to this case is straightforward. The parties have conveniently sorted the documents at issue into three roughly chronological categories, based upon the government's purported motive for their compilation.

Between 1941 and 1945, a government affidavit avers, two directives prompted the creation and compilation of Adamic's file. J.A. at 142. Most of the information on Adamic was gathered pursuant to a 1939 presidential directive that the FBI gather information "relating to espionage, counterespionage, sabotage, subversive activities and violations of neutrality laws." Id. All documents gathered pursuant to that directive were characterized as "Security Matter," id. at 23, and filed under "classification 100," which corresponds to the label "Internal Security," id.

The only document inserted into Adamic's file in the first period that does not appear clearly to have been prompted by the presidential directive is a 10-page memorandum, dated December 1, 1941, created in response to FBI Director J. Edgar Hoover's scrawled query, "What do we know about Adamic?" Id. at 143. The memo compiles references to Adamic in other files. According to the government affidavit:

Most of the information [deleted from that memorandum] was from treason investigations.... One reference was from another file in the 100 [Internal Security] classification and one from a file in the 39 (Falsely Claiming Citizenship) classification [of the FBI's filing system].

Id.

The government has satisfied its burden of demonstrating that it compiled the documents in this first category pursuant to an objectively reasonable law enforcement purpose. Concededly, Hoover's cryptic query bespoke no particular motive. But that is irrelevant. The bits of information withheld from the responding memorandum merely reiterated material that indisputably was "compiled [in other documents] for law enforcement purposes." Accordingly, those bits fall within exemption 7's purview, regardless of the purpose of the document that compiles them. See FBI v. Abramson, 456 U.S. at 623-31, 102 S.Ct. at 2060-64.

As to the remainder (and bulk) of the information withheld in the first category, appellant does not dispute that the terms of the 1939 presidential directive ("espionage, counterespionage, sabotage, subversive activities and violations of neutrality laws") could in some circumstance furnish an objectively reasonable motive to gather information in the name of national security or law enforcement. He disputes instead the reasonableness of the FBI's reliance on that directive to collect the information on Adamic.

Plaintiff's claim depends on a suggestion that documents nominally gathered pursuant to obviously qualifying law enforcement objectives were in reality not so. Plaintiff offers nothing to support such a suggestion, and what data we have supports the opposite. Practically every document in Adamic's file in the first category bears the telltale "Internal Security--C" label. Merely to stamp a document "national security" does not of course make that characterization reasonable. The label does, however, suggest that the document's preparer considered that characterization reasonable. Cf. Smith v. Nixon, 807 F.2d 197, 202 (D.C.Cir.1986). That so many FBI preparers...