Dettmann v. U.S. Dept. of Justice
| Decision Date | 03 December 1986 |
| Docket Number | No. 85-5728,85-5728 |
| Citation | 802 F.2d 1472 |
| Parties | Sonia DETTMANN, Appellant, v. U.S. DEPARTMENT OF JUSTICE. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
James H. Lesar, Washington, D.C., for appellant.
Margaret A. Irving, Asst. U.S. Atty., 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 appellee.
Before BORK and STARR, Circuit Judges, and GESELL, * District Judge.
Opinion for the Court filed by Circuit Judge STARR.
Appeal is taken in this FOIA case from the District Court's grant of summary judgment in favor of the Government. The principal issue before us concerns the propriety of the FBI's treatment of the FOIA request submitted by appellant, Sonia Dettmann, as it related to documents concerning investigations of events, organizations, or individuals other than Dettmann but which contained Dettmann's name. These sorts of records are designated as "see" references by the FBI and constitute a recurring question in the administration of FOIA as it pertains to the FBI.
In January 1977, Dettmann, through counsel, submitted a FOIA request to the FBI for "copies of all documents ... which contain my name or make reference to me or any activities I have allegedly engaged in...." Complaint, Exhibit 1, Joint Appendix (J.A.) at 9. The Bureau released a number of documents, but withheld others, thereby prompting an administrative appeal by Dettmann in September 1977. That appeal led to another round of disclosures in March 1978. Importantly for the issue before us, the FBI's response to Dettmann in March 1978 specifically stated:
Also enclosed are additional documents which you will note relate to our investigation of other events, organizations or individuals. These references are referred to as "see" references. Inasmuch as your client's name was mentioned in each of those documents, only those portions containing a reference to her have been processed for release to you along with additional material to indicate the context in which her name was recorded.
Declaration of David H. Cook, Exhibit 2 (Letter from Allen H. McCreight, Chief, FOIA-Privacy Act Branch to Sonia Dettman (Mar. 1, 1978) (emphasis added)).
This response, setting forth the FBI's general practice with respect to "see" references, prompted a reply from Dettmann's counsel contesting various aspects of the FBI's action but raising no objection to the Bureau's treatment of the "see" reference material. 1 Several months later, in October 1978, Dettmann wrote to the Director of the FBI clarifying her original request so as to encompass records located in any FBI Field Office. This letter specifically referred to the Bureau's "see" reference system, requesting that a Field Office search be made of records under Dettmann's name "or any other descriptive caption under which records in the Central Records System have been located under any 'see reference' system." The letter further requested "that the records of any other Field Office which is the Office of Origin of any 'see referenced' records located in the FBI Headquarters Central Records System be searched." Complaint, Exhibit 2, J.A. at 11.
This pattern of FBI response and requester dissatisfaction continued into the following year. In February 1979, Dettmann complained in writing to the Bureau about treatment of her request for documents from the various Field Offices. She also appealed certain deletions from the Electronic Surveillance Records Systems which had previously been released. Not a word was said, however, in protest against the FBI's practice with respect to "see" reference materials.
This lawsuit was filed in April 1982. The two-page complaint chronicled the several requests to and communications with the Bureau and averred in general terms:
Although the FBI has released some documents to plaintiff, it continues to wrongfully withhold records, or portions thereof, which should be made available to her under the provisions of the Freedom of Information and Privacy Acts.
Complaint p 9, J.A. at 7. The Bureau answered the complaint and thereafter moved for partial summary judgment as to the FBI Headquarters main file indexed to Dettmann and to those "see" references to her contained in the FBI Headquarters "GILROB" file (pertaining to a bank robbery investigation, see supra note 1). This motion was followed in due course by a full-blown motion for summary judgment, supported by various declarations, as to all other FBI Headquarters "see" references and certain FBI Field Office files indexed to Dettmann. These motions elicited not only Dettmann's opposition but a request for discovery, which in turn prompted a supplemental declaration from one of the FBI officials. Further submissions were filed by the Government in early 1984.
Based on these various filings, the District Court granted summary judgment. The court concluded that all segregable, non-exempt portions of the main files had in fact been released. As to the principal bone of contention before us, the "see" reference materials, the District Court held that the Bureau had released "the appropriate segments relating to the specific FOIA requests in that they have released the pages containing [Dettmann's] name and their context." Memorandum Opinion at 6. Citing three District Court decisions, 2 the trial court concluded that it would not require the Bureau to release "an entire document where plaintiff's name is only mentioned a few times" since the effect "would be to impose on the government a burdensome and time consuming task." Id. at 6-7. The court specifically observed in this respect that the Government's uncontradicted affidavits "sufficiently demonstrated that the portions of the 'see' reference of the documents withheld cover different subjects, refer to people unrelated to plaintiff and her activities, or, if related to plaintiff and thus within the scope of the request, fall within one of the nine FOIA exemptions." Id. at 7. 3
On appeal, Dettmann contends primarily that the District Court improperly sanctioned the Government's handling of the "see" reference files. Since we find Dettmann's other contentions to have been correctly analyzed and addressed by the District Court, 4 we confine ourselves to this point which Dettmann aptly describes as "[t]he crux of the dispute between the parties." Appellant's Reply Brief at 2.
We begin by acknowledging the force of Dettmann's primary argument. Her original FOIA request, carefully crafted by counsel, expressly asked for "all documents ... which contain my name or make any reference to me or any activities I have allegedly engaged in." Complaint, Exhibit 1, J.A. at 9 (emphasis added). Relying upon this broad language, Dettmann maintains that the FBI was duty bound to disclose the entire document(s) in the "see" reference files in which Dettmann's name (or a reference to her activities) was found. Dettmann attacks the contrary federal district court decisions, see supra note 2, upholding the FBI's practice in this respect as ill-considered and unreasoned. All she was bound to do, she contends, was to reasonably describe the records sought; here there is no contention, nor could there reasonably be, "that Dettmann failed adequately to describe the records she requested." Appellant's Reply Brief at 3. There is thus no quibble about her use of plain English; the dispute represents, rather, as Dettmann well describes it, the clash of a broadly worded request with the FBI's "general practice" in processing "see" reference materials. Id. (citing Third Supplemental Declaration of Walter Scheuplein, Jr., p 6, J.A. at 183-84).
Faced with this assault, the Government contends that the Bureau was correct in treating entire documents found in the "see" reference files as outside the scope of the request. Invoking Dettmann's post-request communications which describe her request as one for "FBI records 'relating to' herself," Appellee's Brief at 8, the Government contends that "[a] plain, common sense reading of appellant's requests ... indicates that she was interested in only those records that pertained to herself." Id. But the Government arrives at this favorable interpretation only by downplaying the wording of the original request--which as we have seen was broadly crafted in lawyerlike fashion--and emphasizing the subsequent communications that, arguably, narrowed the original dragnet language.
We decline to embrace the Government's parsimonious reading of Dettmann's request. But we also decline to, in effect, overturn an established, general practice of the FBI in coping with the increasing demands of FOIA requests when that practice was specifically brought to appellant's attention in writing and has since been judicially sanctioned. 5 Under these particular circumstances, we are persuaded that Dettmann's appeal must be rejected for failure to exhaust her administrative remedies. As we have previously related, appellant, through counsel, remonstrated with the FBI for various omissions and deletions, but not a word was said about the "see" reference methodology. Indeed, in the face of the Bureau's clear statement of its approach, Dettmann requested only the materials in the GILROB file, documents concerning her relationship with the late Stanley Bond, and semi-weekly FBI reports on her activities. See supra note 1. 6 In crafting this demand, Dettmann's counsel expressly mentioned the "see" reference system twice in the course of a three-paragraph letter, but interposed no general objection to the Bureau's processing of her request pursuant to that system.
We decline under these circumstances to countenance a failure at the administrative level to take issue with a sensible, general practice...
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