Dickerson v. Department of Justice, 92-1458

• Decision Date: 30 April 1993
• Docket Number: No. 92-1458,92-1458
• Citation: 992 F.2d 1426
• Parties: Brian DICKERSON, Plaintiff-Appellant, v. DEPARTMENT OF JUSTICE, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1426

992 F.2d 1426

61 USLW 2698

Brian DICKERSON, Plaintiff-Appellant, v. DEPARTMENT OF JUSTICE, Defendant-Appellee.

No. 92-1458.

United States Court of Appeals Sixth Circuit.

Argued Jan. 19, 1993.

Decided April 30, 1993.

Herschel P. Fink (argued and briefed), Michael A. Gruskin (briefed), Steven M. Ribiat, Honigman, Miller, Schwartz & Cohn, Detroit, MI, for plaintiff-appellant.

L. Michael Wicks, Asst. U.S. Atty., Detroit, MI, Stephen G. Harvey, Leonard Schaitman, U.S. Dept. of Justice, Appellate Staff, Civil Div., Scott R. McIntosh (argued and briefed), U.S. Dept. of Justice, Appellate Div., Washington, DC, for defendant-appellee.

Before: NELSON and BATCHELDER, Circuit Judges; and BECKWITH, District Judge. ^*

DAVID A. NELSON, Circuit Judge.

Pursuant to the Freedom of Information Act--a statute which, subject to certain exceptions, makes federal government records available to anyone who asks for them--plaintiff Brian Dickerson requested the release of records on an investigation conducted by the Federal Bureau of Investigation into the disappearance of Jimmy Hoffa, former president of the Teamsters Union.

Citing 5 U.S.C. § 552(b)(7)(A), which exempts from disclosure "records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information ... could reasonably be expected to interfere with enforcement proceedings," the government denied the request. Mr. Dickerson brought suit in the Eastern District of Michigan to compel the Department of Justice to produce the records. The district court (La Plata, J.) ultimately decided that production was not required.

In making its decision the district court focused on the question whether a "concrete prospective law enforcement proceeding" ¹ could still be discerned--i.e., whether there was still a reasonable chance that someone would be prosecuted in connection with Mr. Hoffa's disappearance. Based on affidavits of several FBI officials and an in camera review of FBI file documents assembled for the purpose of briefing one of the affiants on the status of the investigation, the district court found that "the investigation into Hoffa's disappearance is active and continuing, with the clear direction of future criminal proceedings being instituted." The court further found that disclosure of the requested documents could reasonably be expected to interfere with such proceedings. The court made these findings without having required the government to provide a document-by-document analysis of the files.

The issues presented on appeal are (1) whether the district court abused its discretion in not insisting on a full document-by-document analysis and in limiting its in camera review to the briefing materials; (2) whether the district court dealt correctly with the factual side of the case; and (3) whether the district court ought to have found that at least some non-public portions of the investigatory files were not protected from disclosure. Resolving each of these issues in favor of the government, we shall affirm the judgment of the district court.

I

Jimmy Hoffa disappeared in Detroit, Michigan, on July 30, 1975. It is widely believed that he was abducted and killed. Mr. Hoffa's disappearance led to an FBI investigation that has not, to date, resulted in any criminal proceedings being brought.

The investigation is documented in two large files, one maintained in the FBI's field office in Detroit and the other at FBI headquarters in Washington. At the time with which we are concerned in this proceeding the headquarters file consisted of 67 volumes and the field office file consisted of 332 volumes.

On July 25, 1989, counsel for the Detroit Free Press, a newspaper that employs plaintiff Dickerson in an editorial capacity, sent sweeping Freedom of Information Act requests on the Hoffa investigation to Justice Department and FBI officials in Detroit and Washington. When the requests were denied, Mr. Dickerson sued the Department of Justice under 5 U.S.C. § 552(a)(4)(B), which gives federal district courts jurisdiction to order the production of agency records withheld improperly. This section of the statute, which places the burden of sustaining non-disclosure on the government, directs the court to determine the matter de novo. It also provides that the court "may examine the ... agency records in camera to determine whether such records or any part thereof shall be withheld under any of the exemptions set forth in [5 U.S.C. § 552(b) ]...."

The Department of Justice filed an answer admitting that there were no pending criminal proceedings directly relating to Mr. Hoffa's disappearance, but asserting that no documents had been improperly withheld. Both parties subsequently moved for summary judgment.

The plaintiff's summary judgment motion was accompanied by newspaper articles referring to a statement by Kenneth P. Walton, a retired head of the FBI's Detroit field office, to the effect that although he knew who had murdered Jimmy Hoffa, there would never be a prosecution because of the government's unwillingness to disclose confidential sources. The Justice Department filing was accompanied by "declarations," or affidavits, in which two FBI headquarters officials, Angus B. Llewellyn and Jim E. Moody, attested that the Hoffa investigation was still pending.

The Llewellyn declaration went on to give a general description of the contents of the investigatory files, categorizing the records by source or function. The declaration also sought to explain why law enforcement records contained in the files were exempt from production not only under subsection (7)(A) of 5 U.S.C. § 552(b), but also under subsection (7)(C) (exempting such records if they "could reasonably be expected to constitute an unwarranted invasion of personal privacy"); subsection (7)(D) (exempting them if they "could reasonably be expected to disclose the identity of a confidential source"); and subsection (7)(E) (exempting them if they "would disclose techniques and procedures for law enforcement investigations or prosecutions ... if such disclosure could reasonably be expected to risk circumvention of the law").

The Moody declaration focused on the (7)(A) exemption. The declaration explained, among other things, that

"The files responsive to plaintiff's [Freedom of Information Act] request contain documents detailing the FBI's theories regarding the case, investigative leads we're pursuing (and those we don't consider worthy of pursuit), information furnished by confidential sources, information indicating whom the prime suspects are considered to be, techniques being utilized by the FBI in this investigation, interviews of third parties and cooperating witnesses, results of laboratory and polygraph examinations, and suggestions as to how to proceed with this investigation."

The Moody declaration stated that the FBI was continuing its efforts to develop information for use in criminal proceedings, and the declaration sought to show why production of the records could reasonably be expected to interfere with such proceedings.

In January of 1991 the district court denied both of the motions for summary judgment on the ground that there was a material issue of fact concerning the prospect of future enforcement proceedings. The Justice Department moved for reconsideration, supporting its motion with a declaration executed by William M. Baker, the Assistant Director of the FBI in charge of the agency's Criminal Investigation Division.

Mr. Baker declared under penalty of perjury that it was his responsibility to determine whether the investigation into the Hoffa disappearance should be pursued; that in his judgment the investigation warranted the continuing efforts of the FBI; that he had allocated continued FBI resources to the investigation; that he believed "that the person(s) responsible for Mr. Hoffa's disappearance can be identified and prosecuted;" and that public disclosure of the information in the Hoffa file could reasonably be expected, for reasons specified in the declaration, to interfere with enforcement proceedings against those responsible for the disappearance. Mr. Baker further declared that the statement attributed to the former field office head "did not reflect and does not reflect official FBI policy."

In response to the motion for reconsideration plaintiff Dickerson filed a reply brief stating that Mr. Baker's declaration was essentially identical to one he had filed in a Freedom of Information Act suit brought in a federal district court in Missouri by Mr. Hoffa's daughter, Barbara Crancer. The brief pointed out that the declaration had not dissuaded the district court in Missouri from ordering the government to submit a Vaughn index on the smaller of the two Hoffa files, ² and it noted that FBI Director William Sessions had testified before a Senate Subcommittee that it is "doubtful" that the government will ever have sufficient evidence to bring to trial those responsible for Mr. Hoffa's disappearance. ³

Plaintiff Dickerson's reply brief further advised the court that the Missouri proceedings had disclosed the existence of two categories of documents that might quickly reveal the status of the Hoffa investigation: documents containing the results of high level strategy conferences, with synopses of the investigation to date, and memoranda updating the Director of the FBI on the status of the investigation. The plaintiff's brief suggested that the court conduct an in camera review of all documents in these two categories. Since the Missouri court had already ordered the Justice Department to prepare a Vaughn index on the 68-volume file from FBI headquarters in Washington, plaintiff Dickerson suggested that the Department should be ordered to produce a copy of that index as well.

In the meantime, plaintiff Dickerson had served notice of the depositions of FBI Director Sessions...