Biberman v. Federal Bureau of Investigation

• Decision Date: 05 January 1982
• Docket Number: No. 79 Civ. 2313 (MEL).,79 Civ. 2313 (MEL).
• Citation: 528 F. Supp. 1140
• Parties: Dana BIBERMAN, Judith Clark, Jennifer Dohrn, Eve Rosahn and Natalee Rosenstein, Plaintiffs, v. FEDERAL BUREAU OF INVESTIGATION, William H. Webster, Director, Federal Bureau of Investigation, United States Department of Justice, William French Smith, Attorney General of the United States, Defendants.
• Court: U.S. District Court — Southern District of New York

528 F. Supp. 1140

Dana BIBERMAN, Judith Clark, Jennifer Dohrn, Eve Rosahn and Natalee Rosenstein, Plaintiffs, v. FEDERAL BUREAU OF INVESTIGATION, William H. Webster, Director, Federal Bureau of Investigation, United States Department of Justice, William French Smith, Attorney General of the United States, Defendants.

No. 79 Civ. 2313 (MEL).

United States District Court, S. D. New York.

January 5, 1982.

Susan V. Tipograph, New York City, for plaintiffs.

Natalee Rosenstein, pro se.

John S. Martin, Jr., U. S. Atty., S. D. N. Y., New York City, for defendants; William J. Hibsher, Asst. U. S. Atty., Thomas J. Coyle, Federal Bureau of Investigation, Legal Counsel Division, New York City, of counsel.

LASKER, District Judge.

This action is an outgrowth of Clark v. United States, currently pending before this Court. The Clark complaint alleges that plaintiffs have been the subjects of a counter-intelligence program which included break-ins, burglaries, wiretappings, and numerous other forms of harassment, in violation of their Constitutional, statutory, and common law rights. The defendants originally included a number of former high government officials, such as Richard Nixon and L. Patrick Gray,¹ as well as former Federal Bureau of Investigation ("FBI") agents Edward Miller and W. Mark Felt. One of the most striking facts in the background of Clark is that several of the defendants in that case have been indicted, and two have been convicted after jury trials,² for actions that are among the subjects in the Clark complaint.

The Clark plaintiffs, confronting alleged obstacles in securing discovery in that action, exercised their rights under the Freedom of Information Act, 5 U.S.C. § 552, ("FOIA"), to supplement their discovery efforts. Plaintiffs made a FOIA request to the FBI for copies of documents related to them. In response, numerous documents were delivered to plaintiffs, many of which, however, were heavily redacted. Considering defendants' response to be insufficient, plaintiffs commenced this action. Plaintiffs moved pursuant to Vaughn v. Rosen, 484 F.2d 820 (C.A.D.C.1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974) for an itemization and index of the documents produced and a justification of all exemptions claimed under the FOIA. The FBI submitted "Vaughn affidavits" in response to plaintiffs' motion. Plaintiffs contend that the FBI's response to their FOIA request was inadequate in two respects: 1) the exemptions claimed were not justified, either by the Vaughn affidavits, or under the standards established by the relevant case law; and 2) the FBI failed to conduct a complete search of its records. Both parties have moved for summary judgment pursuant to Fed.R.Civ.Pr. 56.

The Exemptions

Allegedly in reliance on the exemptions specified by the FOIA, substantial deletions were made by defendants in the documents provided to plaintiffs. Although the Vaughn affidavits did not appear to be inadequate, it seemed appropriate, in view of the extraordinary background of the case, to conduct an in camera inspection of the unexcised documents. However, on account of the voluminous nature of the files in question, it was determined that one file would be reviewed as a sample of all of the claims of exemption. The parties approved the sampling method, although agreement was not reached on which file was to be used as a sample. The Court decided to use the file of plaintiff Rosahn because, although it is the shortest, it is nevertheless sufficiently voluminous to constitute a reasonable sample of the types of deletions in all the files and to permit a determination as to whether the deletions were permissible under the statutory exemptions to the FOIA.

In the course of the in camera review of the Rosahn file, certain notations were found on the documents, the meaning of which were unclear. A meeting was held, on the record, although in the absence of plaintiffs' counsel, at which two FBI agents explained what the notations meant and what the relations of the notations were to the exemptions under the Act and to the contents of the Vaughn affidavits. The record of the meeting has been sealed.

On the basis of the Vaughn affidavits and the in camera inspection, we conclude that the deletions in the documents provided to plaintiffs are justified by the FOIA exemptions.

The FBI relied primarily on three exemptions in making deletions from the documents sent to plaintiffs: section 552(b)(1), the national security exemption; section 552(b)(7)(C), the privacy exemption; and section 552(b)(7)(D), the exemption for confidential sources.

The national security exemption, § 552(b)(1), provides that materials are exempt if "authorized under criteria established by an Executive Order to be kept secret in the interest of national defense or foreign policy and ... in fact properly classified pursuant to such Executive Order." The Executive Order ("EO") controlling this case is EO 12065, 43 Fed.Reg. 28949 (June 28, 1978). Plaintiffs' principal argument is that EO 12065 provides that materials classified thereunder must reasonably be expected to cause identifiable damage to national security, and that the FBI has failed to identify any specific damage to national security which can reasonably be expected to flow from disclosure of this information. In response, defendants rely primarily on the affidavit of Special Agent Klossner, which lists a number of possible harms resulting from disclosure of the excised portions, including death of a source, discontinuance of a source's services, and damage to ongoing intelligence activities. Such harms, if they exist, constitute identifiable damage to national security.

The standard for determining the applicability of the national security exemption has been established:

"Summary judgment should be granted to the Government if its affidavits appear to be made in good faith, describe the contested document so that it logically fits into the asserted exemption, and are substantially unrebutted by plaintiff."

Lamont v. Department of Justice, 475 F.Supp. 761, 768 (S.D.N.Y.1979) (Weinfeld, J.)

There is no reason to doubt Agent Klossner's good faith, nor has any specific rebuttal been offered by plaintiffs. The in camera inspection of the documents was intended to determine whether the documents "logically fit into the asserted exemption"; we are satisfied that they do.

Subsection (b)(7)(C) provides an exemption for "investigatory records compiled for law enforcement purposes ... to the extent that production of such records would ... constitute an unwarranted invasion of privacy..." The items deleted under this exemption are the names of FBI agents, of other government employees and of third parties, and personal information about the third parties. It is uncontested that (b)(7)(C) requires the striking of a balance between the public's interest in the information and the privacy interests of the individuals concerned. Columbia Packing Co. v. United States Dept. of Agriculture, 563 F.2d 495, 498 (1st Cir. 1977). The public interests at stake here have been balanced against similar privacy interests often enough in the past that the outcome is beyond dispute.

"It has consistently been held that Exemption 7(c) protects the names of FBI agents and other nonpolicymaking government officials associated with investigations, for `public identification of any of these individuals could conceivably subject them to harassment and annoyance in the conduct of their official duties and in their private lives. While the right to privacy to these FBI agents is perhaps minimal ... the public interest in the identification of the FBI agents who conducted the investigation ... appears to be even less.' Similarly, the exemption shields identities of third persons subject to FBI inquiries or cooperating in such investigations."

Lamont v. Department of Justice, supra, 475 F.Supp. at 777. The exemptions claimed under subsection (b)(7)(C) are accordingly upheld.

Subsection (b)(7)(D) provides for the exemption of records compiled for law enforcement purposes which would disclose the identity of a confidential source. Pursuant to this exemption, defendants have withheld the names and symbols of FBI confidential sources, and information furnished by sources where such information could lead to identification of the source. Plaintiff argues, first, that the exemption does not apply because the affidavits do not set forth facts demonstrating that the sources were promised confidentiality. The exemption, however, does not require a finding that express assurances of confidentiality were given, as long as the circumstances were such that an assurance of confidentiality could reasonably be implied, T. V. Tower, Inc. v. Marshall, 444 F.Supp. 1233, 1235 (D.D.C.1978). To the extent that the affidavits failed to set forth sufficient facts to allow a determination that such circumstances existed, those omissions have been cured by the in camera inspection of the Rosahn file.

Second, plaintiffs argue that credit bureaus, banks, local governments, and the like cannot be considered confidential sources and that if such institutions are among the sources whose identities were deleted, the deletions were unjustified. Plaintiffs contend that such institutions do not have any reasonable expectation in or need for privacy with regard to these matters. This argument is foreclosed by Keeney v. Federal Bureau of Investigation, 630 F.2d 114 (2d Cir. 1980) in which local law enforcement agencies were held to constitute confidential sources for the purposes of subsection (b)(7)(D). Although the holding of Keeney extended only to local law enforcement agencies, the reasoning leaves no doubt that credit bureaus and banks must be accorded the same protections. See Keeney, supra at 117 ("the word `source' is routinely used to refer also to statements ... by ... corporations, and so forth.... Nothing in that...