Bowers v. U.S. Dept. of Justice

• Decision Date: 03 June 1991
• Docket Number: No. 90-2063,90-2063
• Citation: 930 F.2d 350
• Parties: Bruce BOWERS, Plaintiff-Appellee, v. U.S. DEPARTMENT OF JUSTICE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 350

930 F.2d 350

Bruce BOWERS, Plaintiff-Appellee, v. U.S. DEPARTMENT OF JUSTICE, Defendant-Appellant.

No. 90-2063.

United States Court of Appeals, Fourth Circuit.

Argued Jan. 8, 1991.

Decided April 11, 1991.

As Amended June 3, 1991.

John Peter Schnitker, Civ. Div., U.S. Dept. of Justice, Washington, D.C., for defendant-appellant.

James Hiram Lesar, Washington, D.C., argued (Bernard Fensterwald, III, Fensterwald & Alcorn, P.C., Vienna, Va., on brief), for plaintiff-appellee.

Before HALL and CHAPMAN, Circuit Judges, and COPENHAVER, United States District Judge for the Southern District of West Virginia, sitting by designation.

CHAPMAN, Circuit Judge:

This is an appeal by the Department of Justice from an order of the district court directing the disclosure of the complete, unredacted FBI files on Ingrid Vanda Noreiko and Jacob Znatnajs. The order was the result of a suit by plaintiff Bruce Bowers under the Freedom of Information Act (FOIA), 5 U.S.C. Sec. 552. Plaintiff is a journalist and is seeking the information in connection with news broadcasts and with a book he is writing. After an in camera review of the unredacted files and the written declarations submitted by the Department as to why the information was withheld, how it qualified for exemption from disclosure under 5 U.S.C. Sec. 552(b), and why it should not be released, the district court found that neither Noreiko nor Znatnajs had held a position of trust or confidence with any government, had not been shown to have handled or observed any confidential information, and had not been involved in matters involving national security, and that there "was no reason in national security or otherwise for the withholding of the information about Noreiko and Znatnajs from disclosure under the Freedom of Information Act." We find that the district court erred in not applying the proper standards in its review of the records, in not giving any weight to the detailed explanations of the agency as to why the undisclosed information should be withheld, in not addressing and applying the exceptions found in 5 U.S.C. Sec. 552(b), and in not finding facts to support its order releasing the files. The action of the district court is clearly erroneous, and we reverse.

I

In late 1984 and early 1985, plaintiff Bruce Bowers sought disclosure from the FBI and the CIA of all documents relating to Valentine Kamenev, Ingrid Noreiko and Jacob Znatnajs. Kamenev is a Soviet diplomat, who has served as press attache in the Soviet Embassy in Washington, as Deputy Head of the Press Department of the Soviet Ministry of Foreign Affairs in Moscow, and as Consul General in the Soviet Consulate in San Francisco. Znatnajs was a Russian subject, born in Latvia, who had illegally entered the United States in 1946 and had died in New York City in 1985. Noreiko immigrated to the United States in 1974 from the Soviet Union, and she has become an American citizen. Noreiko may be related to Znatnajs.

Bowers first requested information about Kamenev in December 1984 from the FBI. This request was denied. Thereafter plaintiff submitted requests to the FBI for release of information concerning Znatnajs and Noreiko. Some information was released on Znatnajs and Noreiko, but other documents and information were withheld under exceptions to the Freedom of Information Act. After Bowers had exhausted his administrative remedies, he brought the present action and moved for an index as provided in 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). Vaughn requires an agency in denying a request for documents under the Freedom of Information Act to furnish detailed justifications for exemption claims, itemize and index documents in such a manner as to correlate justifications for refusal to disclose where actual portions of documents are claimed to be exempt. Id. at 826-27. The government answered and denied the plaintiff's claims. The district court directed the government to prepare Vaughn indices. An 80 page declaration from FBI special agent John Mencer was filed concerning the Noreiko and Znatnajs files and redacted copies of 42 documents from the Znatnajs file were released. A seven page declaration from special agent Robert Peterson concerning the Kamenev file was filed. As to Noreiko, the agent indicated that the investigation was still open and claimed that exemption (7)(A) ¹ applied to the withholding of documents pertaining to Noreiko.

Over the course of the litigation, a number of redacted copies of documents have been delivered to the plaintiff. After the government's motion for summary judgment was denied, the district court directed that unredacted copies of all of the documents and the justification for the government's withholding be submitted to the court for in camera inspection. This resulted in the government submitting for the in camera inspection of the court unredacted copies of the three files, including copies marked to show the portions withheld from the plaintiff by the FBI and CIA pursuant to Freedom of Information Act exemptions (1), (2), (3), (6), (7)(C), (7)(D), and (7)(E) and by the United States Marshal's Service pursuant to Freedom of Information exemption (7)(C). 5 U.S.C. Sec. 552(b)(1), (2), (3), (6), (7)(C), (D), and (E). Also submitted were in camera declarations of Phillip W. Thomas and Robert F. Peterson and public declarations of Robert F. Peterson explaining the reasons for withholding the entire Kamenev file. The court was also furnished public declarations of special agent John Mencer and Robert F. Peterson explaining the reasons for withholding the materials from the Znatnajs file, and an in camera declaration of Phillip W. Thomas and public declarations of Robert F. Peterson, John Frederick Mencer and Lee E. Carle explaining the reasons for withholding the materials from the Noreiko file. Thereafter the government submitted the in camera declaration of Earl E. Pitts. These declarations exceeded 480 pages and explained in detail why Sec. 552(b) exemptions applied to the information and documents withheld.

On March 7, 1990 the district court denied plaintiff's request for the production of the Kamenev file, but it directed that the complete FBI files ² on Noreiko and Znatnajs be made available to the plaintiff on or before April 15, 1990. Following defendant's notice of appeal, we stayed the district court's order pending the outcome of this appeal.

We are no longer concerned with the Kamenev file because no appeal was taken from the district court's action in denying production of this file.

II

The appellant claims error by the district court in ordering disclosure of the information relating to Znatnajs and Noreiko because (1) the court failed to accord "substantial weight" to the expert opinions submitted by way of declarations of agents of the FBI and the CIA, the executive branch agencies charged with determining what information the government may properly release, and (2) the court summarily ordered disclosure of information after the FBI and the CIA had determined such information to be properly withheld from the plaintiff under the FOIA exemptions (1), (2), (6), (7)(C), (7)(D) and (7)(E) and met their burden of demonstrating that the information was properly exempt from disclosure.

The standard of review in FOIA cases is limited to determining " 'whether (1) the district court had an adequate factual basis for the decision rendered and (2) whether upon this basis the decision reached is clearly erroneous.' " Spannaus v. Department of Justice, 813 F.2d 1285, 1288 (4th Cir.1987) (quoting Willard v. Commissioner, 776 F.2d 100, 104 (4th Cir.1985)). Spannaus makes clear that the words "clearly erroneous" as used in that opinion do not refer to the standard of review provided by Rule 52(a) of the Federal Rules of Civil Procedure, and that any findings of fact made on a summary judgment motion are not entitled to the clearly erroneous protection on review. Of course, legal errors are reviewed de novo. Simmons v. Department of Justice, 796 F.2d 709, 710 (4th Cir.1986).

III

The FOIA was enacted as a general disclosure statute pertaining to all federal records, but Congress "realized that legitimate governmental and private interests could be harmed by release of certain types of information." FBI v. Abramson, 456 U.S. 615, 621, 102 S.Ct. 2054, 2059, 72 L.Ed.2d 376 (1982), and as a result Congress provided the exemptions set forth in Sec. 552(b).

In general, the FOIA exemptions are to be narrowly construed in favor of disclosure. J.P. Stevens & Co. v. Perry, 710 F.2d 136, 139 (4th Cir.1983). However, the act expressly recognizes that "public disclosure is not always in the public interest." Baldrige v. Shapiro, 455 U.S. 345, 352, 102 S.Ct. 1103, 1108, 71 L.Ed.2d 199 (1982).

The government is claiming that the information contained in the files is exempt from disclosure under one or more of exemptions (1), (2), (3), (6), (7)(C), (7)(D), and (7)(E) of Sec. 552(b). Section 552(b) of the FOIA provides:

This section does not apply to matters that are--

(1)(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive Order;

(2) related solely to the internal personnel rules and practices of the agency;

(3) specifically exempted from disclosure by statute (other than Section 552b of this title), provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld;

. . . . .

(6) personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy;

(7) records or information...