Brown v. Federal Bureau of Investigation

• Decision Date: 24 August 1981
• Docket Number: D,No. 1516,1516
• Citation: 658 F.2d 71
• Parties: Gerald BROWN, Plaintiff-Appellant, v. FEDERAL BUREAU OF INVESTIGATION, William H. Webster, Director, and United States Department of Justice, William French Smith, Attorney General, Defendants-Appellees. ocket 81-6064.
• Court: U.S. Court of Appeals — Second Circuit

Page 71

658 F.2d 71

Gerald BROWN, Plaintiff-Appellant, v. FEDERAL BUREAU OF INVESTIGATION, William H. Webster Director, and United States Department of Justice William French Smith, Attorney General Defendants-Appellees.

No. 1516, Docket 81-6064.

United States Court of Appeals, Second Circuit.

Argued June 12, 1981.

Decided Aug. 24, 1981.

Ronald R. Benjamin, Binghamton, N. Y., for plaintiff-appellant.

George H. Lowe, U. S. Atty., N. D. N. Y., Syracuse, N. Y. (Joseph A. Pavone, Asst. U. S. Atty., Syracuse, N. Y., of counsel), for defendants-appellees.

Before OAKES and KEARSE, Circuit Judges, and RE, ^* Chief Judge.

RE, Chief Judge:

This is an appeal from a judgment of Judge McCurn of the U. S. District Court for the Northern District of New York, which granted summary judgment to the defendant-respondent, the Federal Bureau of Investigation, and which dismissed the plaintiff-appellant, Mr. Brown's complaint. Plaintiff-appellant, Brown, sought an order directing the F.B.I. to disclose to the plaintiff certain information concerning a Ms. Shepardson, pursuant to a request made under the Freedom of Information Act, 5 U.S.C. § 552. Since we agree with the judgment of the District Court, we affirm.

On September 16, 1976, Gerald Brown, the plaintiff in this action, was convicted in the U. S. District Court of kidnapping Mary Shepardson. As the victim of the kidnapping, Ms. Shepardson was a key prosecution witness at the trial. Mr. Brown's conviction was affirmed on appeal ¹ and he is currently serving a 25-year sentence.

On September 10, 1979, Mr. Brown submitted a Freedom of Information Act request to the F.B.I., which sought access to any information in its files, concerning monetary or other benefits received by Ms. Shepardson in return for her testimony; her involvement in the government's Witness Protection Program; information as to the custody of Ms. Shepardson's children; Ms. Shepardson's criminal record; and any information relating to her possible involvement with illegal drugs.

The F.B.I. denied this request, explaining that the information sought was personal to Ms. Shepardson; its release without her consent was prohibited by the Privacy Act, 5 U.S.C. § 552a; and that there was insufficient public interest in the information requested to require its disclosure under the Freedom of Information Act.

Mr. Brown appealed the denial of his request to the Department of Justice. In denying his appeal, the Department informed him that the only F.B.I. records indexed to Ms. Shepardson were those dealing with the initial kidnapping investigation. Mr. Brown next sought an order from the District Court for the Northern District of New York, permitting access to the requested records. The F.B.I., in its answer, stated that the information had been properly withheld because its disclosure would constitute an unwarranted invasion of Ms. Shepardson's privacy, and cross-moved for dismissal.

Plaintiff subsequently moved for an order requiring the defendants to provide a detailed justification for withholding the requested information, including an itemization and index which would correlate specific statements in the justification with actual portions of the requested documents.

The F.B.I. opposed the motion, contending that the requested information was exempt from FOIA disclosure under 5 U.S.C. § 552(b)(6) which exempts from disclosure "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy"; and also under 5 U.S.C. § 552(b)(7) which exempts from disclosure "investigatory records compiled for law enforcement purposes ... to the extent that the production of such records would ... constitute an unwarranted invasion of personal privacy." The F.B.I. further contended that, even if the requested records were not exempted from disclosure under the FOIA, it was prohibited by the Privacy Act, 5 U.S.C. § 552a(b), from disclosing that information without the consent of the individual to whom it pertained.

Mr. Brown also requested that the court conduct an in camera inspection of the disputed records. The court denied this request, holding that the F.B.I.'s sworn affidavits constituted a sufficiently detailed justification for its refusal to disclose. Treating the F.B.I.'s cross motion to dismiss as one for summary judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure, the District Court granted summary judgment in favor of the F.B.I.

The question presented in this appeal is whether the District Court properly reviewed the F.B.I.'s refusal to disclose the requested information. Mr. Brown contends that the District Court erred in three respects; first, in denying his motion for a detailed justification of the claimed exemption; second, in denying his motion for an in camera inspection; and, third, in its interpretation of the claimed FOIA disclosure exemptions under 5 U.S.C. §§ 552(b)(6) and 552(b)(7).

When a government agency receives a request for information of a personal nature, pertaining to a person other than the one making the request, the agency must reconcile two conflicting duties: the duty to make available to the public the information in its possession; and the duty to safeguard the privacy of individual members of the public. These duties are enunciated in the Freedom of Information Act, 5 U.S.C. § 552, and the Privacy Act of 1974, 5 U.S.C. § 552a.

The Freedom of Information Act, and the judicial decisions which interpret and apply it, evidence a strong public policy in favor of public access to information in the possession of federal agencies. See Department of Air Force v. Rose, 425 U.S. 352, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976); E. P. A. v. Mink, 410 U.S. 73, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973). In keeping with this policy, the FOIA clearly specifies that when an agency withholds requested information "the burden is on the agency to sustain its action." 5 U.S.C. § 552(a)(4) (B). This is a necessary aspect of FOIA litigation because, in the typical case, only the agency knows the exact nature of the documents being withheld. See Ray v. Turner, 587 F.2d 1187 (D.C.Cir.1978); Mead Data Cent., Inc. v. U. S. Dept. of Air Force, 566 F.2d 242 (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). The party seeking to obtain documents usually can only speculate on their contents.

In an effort to compensate for this obvious disadvantage, courts have required agencies to itemize and index the documents requested, segregate their disclosable and non-disclosable portions, and correlate each non-disclosable portion with the FOIA provision which exempts it from disclosure. This procedure is intended to restore the adversarial balance needed to allow the court to reach a just and fair result. See Vaughn v. Rosen, 484 F.2d at 824. It has been recognized, however, that the itemizing and indexing of documents "are not ends in themselves, but only means by which an FOIA plaintiff gains the ability 'to present its case effectively' ". Information Acquisition Corp. v. Dept. of Justice, 444 F.Supp. 458, 462 (D.D.C.1978), quoting, Mead Data, 566 F.2d at 251. Thus, when the facts in plaintiff's possession are sufficient to allow an effective presentation of its case, an itemized and indexed justification of the specificity contemplated by Vaughn may be unnecessary. The District Court concluded that this was such a case, and we agree. The detailed requests made by Mr. Brown, focusing on private aspects of Ms. Shepardson's activities, belies any contention that he does not know the nature of the information that the F.B.I. has withheld.

Furthermore, the affidavit submitted by Mr. Underwood of the F.B.I. sets forth the reasons for withholding that information in detail sufficient to allow the District Court to make a determination with respect to the claimed exemptions. Thus, the equalization provided by the reasoning of the Vaughn case is not required here. This court, in Lead Industries Ass'n v. Occup. S. & H. Admin., 610 F.2d 70 (2nd Cir. 1979), endorsed the proposition that, in FOIA litigation:

It is only where the record is vague or the agency claims too sweeping or suggestive of bad faith that a District Court should conduct an in camera examination to look for segregable non-exempt matter ... Where it is clear from the record that an agency has not exempted whole documents merely because they contained some exempt material, it is unnecessary and often unwise to undertake such an examination.

Id., at 88, quoting Weissman v. Central Intelligence Agency, 565 F.2d 692, 698 (D.C.Cir.1977).

Plaintiff does not assert in this action that the F.B.I. is attempting to withhold patently disclosable information by lumping it together with arguably exempt matter. Accordingly, we find that the District Court did not abuse its discretion in denying plaintiff's motion for an in camera inspection of the requested documents.

As regards the substantive aspects of plaintiff's appeal, it must be noted that the Privacy Act absolutely prohibits the non-consensual release of information personal to Ms. Shepardson except as required under the FOIA. 5 U.S.C. § 552a(b). Therefore, the decision to disclose...