Patterson by Patterson v. F.B.I.

• Decision Date: 07 February 1990
• Docket Number: 89-5781,Nos. 89-5342,Nos. 89-5342 and 89-5781,s. 89-5342 and 89-5781,s. 89-5342
• Citation: 893 F.2d 595
• Parties: Todd PATTERSON, a Minor suing by his father, Edgar PATTERSON v. FEDERAL BUREAU OF INVESTIGATION, John Doe, an unknown employee of the United States Government and John Doe Agency, an unknown agency of the United States Government. Appeal of Todd PATTERSON in
• Court: U.S. Court of Appeals — Third Circuit

Page 595

893 F.2d 595

Todd PATTERSON, a Minor suing by his father, Edgar PATTERSON v. FEDERAL BUREAU OF INVESTIGATION, John Doe, an unknown employee of the United States Government and John Doe Agency, an unknown agency of the United States Government Appeal of Todd PATTERSON in Nos. 89-5342 and 89-5781.

Nos. 89-5342, 89-5781.

United States Court of Appeals Third Circuit.

Argued Nov. 9, 1989.

Decided Jan. 8, 1990.

Rehearing and Rehearing In Banc Denied Feb. 7, 1990.

Frank Askin (argued), Rutgers Constitutional Law, Newark, N.J., for appellant.

Susan C. Cassell, U.S. Attorney's Office, Newark, N.J., for all appellees.

Douglas Letter (argued), Robert E. Kopp, Dept. of Justice, Civil Div., Washington, D.C., for F.B.I.

Before MANSMANN and GREENBERG, Circuit Judges, and GAWTHROP, District Judge. ^*

OPINION OF THE COURT

MANSMANN, Circuit Judge.

These appeals were born of the ambitious efforts of a sixth grade elementary school student who, in the lawful exercise of his constitutional rights, caused himself to be the subject of an investigation by the Federal Bureau of Investigation ("FBI"). The appeals constitute yet another illustration of the competing need for disclosure of information by government agencies and the need to prevent injury to the national security.

Todd Patterson ("Todd") appeals from the district court's orders granting summary judgment to the FBI and denying his post-trial motion filed pursuant to Federal Rule of Civil Procedure 60(b). ¹ We hold that the information Todd seeks from the federal agency was properly exempt from disclosure. Therefore, we will affirm the judgment of the district court.

I.

In 1983, Todd, then a sixth grade elementary school student, embarked on a precocious endeavor to write an encyclopedia of the world as part of a school project. Deciding that his school's resources were inadequate, Todd wrote to 169 countries requesting information. Significantly, Todd enclosed much of this correspondence in envelopes bearing the return address of Laboratory Disposable Products, a business Todd's parents operated from their home.

The flood of international correspondence engendered by the project attracted the attention of the FBI by means and methods undisclosed by the FBI. In late 1983, an FBI agent appeared unannounced at Todd's home. The agent spoke to Todd's parents concerning Todd's activities and was shown the correspondence received in response to Todd's requests. Soon after the visit, Todd contacted the FBI agent and spoke with him regarding the school project and the information requests to other countries.

As a result of the school project and the visit by the FBI agent, the FBI came to maintain a file on Todd. ² The file contained a directive for the FBI's Newark Division to conduct an appropriate investigation of Laboratory Disposable Products in accordance with Attorney General Guidelines. Also included in the file is a memorandum, prepared on or about February 23 1984, that changed the subject heading from "Laboratory Disposable Products" to "Todd Patterson." The memorandum contains a description of Todd's project and states "Newark indices as well as local criminal checks negative on subject" and "[i]n view of the above, Newark contemplates no further investigation in this matter." 705 F.Supp. 1033, 1037 (D.N.J.1989).

The FBI maintains that it conducted no further investigation after 1983. ³ However, a document released by the FBI dated December 5, 1985, along with five attachments not released, demonstrate that as of that date some entity of the United States Government continued to monitor Todd's activities. Todd insists that surveillance remained in effect because he continued to receive pieces of mail in damaged condition. In addition, Todd and his parents report hearing strange background noises on their telephones since 1983.

In April, 1987, Todd requested, pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. Sec. 552 (1982), access to records the F.B.I. in Washington, D.C. might be maintaining on him. Todd was informed that the information he requested was exempt from disclosure under 5 U.S.C. Sec. 552(b)(1) and 5 U.S.C. Sec. 552a(j)(2). Todd appealed the denial of his FOIA request to the Department of Justice, Office of Information and Privacy, where the determination was upheld. Thereafter, Todd filed a second FOIA request, this time directed to the FBI's Newark field Office. ⁴

In May 1988, Todd initiated a civil suit against defendants FBI, John Doe (an unknown employee of the United States Government), and John Doe Agency (an unknown agency of the United States Government). Todd sought injunctive relief, damages, and disclosure of the requested documents. The complaint presented three distinct causes of action: (1) failure to comply with FOIA; (2) violations of the Privacy Act; and (3) violations of Todd's First and Fourth Amendment rights and of 18 U.S.C. Sec. 1702 and 19 U.S.C. Sec. 482, statutes relating to the U.S. Mail.

The FBI responded initially to the complaint by offering to expunge Todd's name from its records. The offer was never accepted. ⁵ Thereafter, the FBI filed a motion for summary judgment on the first and second causes of action, reasserting that the requested information was exempt from disclosure. As to the third cause of action, the FBI moved to dismiss pursuant to Fed.R.Civ.P. 12(b)(2). Following oral argument on the motion and in camera review of the withheld documents, the district court granted summary judgment to the FBI on February 7, 1989, on all three causes of action. ⁶ 705 F.Supp. 1033 (D.N.J.1989). Todd thereafter filed a motion, pursuant to Fed.R.Civ.P. 60(b), to vacate the judgment or in the alternative to supplement the record which was denied by the district court on August 18, 1989. We have jurisdiction to review the grant of a motion for summary judgment and the denial of a Rule 60(b) motion pursuant to 28 U.S.C. Sec. 1291.

II.

A.

Todd challenges the procedures employed by the district court in its adjudication of the alleged FOIA violation. In particular, Todd contends that the record does not justify the district court's use of an in camera affidavit and its further in camera examination of withheld documents.

In Lame v. United States Dept. of Justice, 654 F.2d 917, 922 (3d Cir.1981), we expressly authorized the use of in camera affidavits and submissions. We noted that in the ordinary case, "a Vaughn index correlating justifications for non-disclosure with the particular portions of the documents requested will generally suffice to narrow the disputed issues and permit a reasoned disposition by the district court." Lame, at 922. ⁷

However, there are cases, albeit unusual, where the preparation of a detailed Vaughn index would require an agency to disclose the very information that it seeks to withhold. Under these circumstances, we require an agency to submit a public affidavit setting forth, in as detailed terms as possible, the basis for the claimed exemption. Lame, 654 F.2d at 921. The district court must strive to make the public record as complete as possible, soliciting as much information as can be willingly released by the agency. If, however, "the agency is unable to articulate publicly the specific disclosure it fears and the specific harm that would ensue, then in camera inspection of a more detailed affidavit must be resorted to." See Ferri v. Bell, 645 F.2d 1213, 1224 (3d Cir.1981), opinion modified, 671 F.2d 769 (3d Cir.1982); Phillippi v. Central Intelligence Agency, 546 F.2d 1009, 1013 (D.C.Cir.1976). Moreover, to the extent that any public affidavits may appear sufficiently descriptive, it may nonetheless be necessary for the district court to examine the withheld documents in camera to determine whether the agency properly characterized the information as exempt. 5 U.S.C. Sec. 552(a)(4)(B); Lame, 654 F.2d at 921; Ferri, 645 F.2d at 1222; see also Phillippi, 546 F.2d at 1012 (FOIA clearly contemplates that courts will resolve fundamental issues in contested cases on the basis of in camera examination of relevant documents).

We believe the procedural events in the case sub judice are in accord with those procedures outlined above. In seeking discovery from the FBI, Todd propounded interrogatories questioning, inter alia, the internal investigatory procedures of the FBI and the identities of the persons and agencies assigned to Todd's case. The FBI provided answers to a few of the interrogatories, however, in most instances it claimed exemption from disclosure under the states military secrets privilege and 5 U.S.C. Sec. 552(b)(1) and Sec. 552(b)(7)(C) of the FOIA. In support of its claim of privilege, the FBI submitted the public affidavits of Special Agents Lieberman, Thomas, and Thorton. The purpose of the Thomas affidavit was to provide the district court with a Vaughn index for the records requested by Todd and withheld by the FBI. Lieberman's affidavit describes the withheld documents and sets forth justifications for those withholdings under the FOIA. Lastly, the Thorton affidavit states that the Patterson premises had never been the subject of electronic surveillance and the FBI was innocent of opening or intercepting any mail directed to the Pattersons.

Ostensibly, the district court found that these affidavits constituted sufficient proof of the privileged nature of the withheld information, for it was not until after oral argument on the FBI's motion for summary judgment that in camera inspection was ordered. Indeed, the district court's order directing the ex parte review indicated the following:

because certain issues were raised in oral argument that were not adequately addressed in the supporting papers, I have concluded that in camera inspection of certain withheld documents is required in order for this Court to assure itself that the FBI has acted in good faith with regard to its investigation of Todd Patterson, that the FBI complied with...