Donovan v. FBI, 82 Civ. 4766 (RWS).

• Decision Date: 17 April 1986
• Docket Number: No. 82 Civ. 4766 (RWS).,82 Civ. 4766 (RWS).
• Citation: 633 F. Supp. 35
• Parties: Michael DONOVAN, William Ford, James Kazel and Judy Keogh, Plaintiffs, v. FEDERAL BUREAU OF INVESTIGATION, Defendant.
• Court: U.S. District Court — Southern District of New York

633 F. Supp. 35

Michael DONOVAN, William Ford, James Kazel and Judy Keogh, Plaintiffs, v. FEDERAL BUREAU OF INVESTIGATION, Defendant.

No. 82 Civ. 4766 (RWS).

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

April 17, 1986.

Paul, Weiss, Rifkind, Wharton & Garrison, The Lawyers Committee for Intern. Human Rights, New York City, for plaintiffs; Robert S. Smith, Eric M. Freedman, Michael Posner, Diane Orentlicher, of counsel.

Rudolph W. Giuliani, U.S. Atty., S.D. N.Y., New York City, for defendant; Gerald T. Ford, Asst. U.S. Atty., of counsel.

OPINION

SWEET, District Judge.

The Federal Bureau of Investigation ("FBI") has brought this motion to reargue certain aspects of the court's opinion of January 6, 1986 which directed the FBI to disclose portions of eight documents in connection with a Freedom of Information Act ("FOIA") suit brought by Michael Donovan, William Ford, James Kazel, and Judy Keogh (the "Plaintiffs"). The FOIA request concerns government documents relating to an investigation into the murder of four American churchwomen in El Salvador in 1980.

The FBI seeks to reargue the court's decision with regard to five of the documents for which disclosure was ordered. In support of its motion, the FBI has proffered an additional exemption for one document and has requested leave to file in camera affidavits in support of other claimed exemptions which were denied in the earlier opinion. Of course, as Local Rule 3(j) requires, a party moving for reargument must set forth "matters or controlling decisions" which were overlooked, not additional matters which might influence the court. See Herbert v. Lando, 603 F.Supp. 983 (S.D.N.Y.1985), aff'd, 781 F.2d 298 (2d Cir.1986); New York Guardian Mortgagee Corp. v. Cleveland, 473 F.Supp. 409, 420 (S.D.N.Y.1979).

While the post hoc classification of documents, Miller v. Department of State, 779 F.2d 1378, 1388 (8th Cir.1985), and the belated assertion of new exemptions, Lame v. Department of Justice, 767 F.2d 66, 71 n. 7 (3rd Cir.1985), have been permitted under certain circumstances, in each case, the classifying agency has set forth the additional grounds for refusing disclosure before a final determination on the merits has been rendered by the district court. Cf. Jordan v. Department of Justice, 591 F.2d 753, 780 (D.C.Cir.1978). In this case, the FBI argued in response to the plaintiff's motion for a more detailed Vaughn affidavit that its earlier submission adequately set forth the basis for each of its claimed exemptions. Therefore, having successfully closed the record, the FBI will not now be granted the opportunity selectively to reopen it on this motion to reargue. A brief review of the disclosures ordered by the previous opinion demonstrates that there was no overlooked basis which would require a different conclusion, except as to an inconsistent treatment of one document.

A portion of Document 41 was ordered disclosed notwithstanding the FBI's claim to exemption 7(D). This exemption applies to the identity of and information from a confidential source in connection with a law enforcement proceeding. The determination of whether a person is a confidential source is a question of fact. See Keeney v. Federal Bureau of Investigation, 630 F.2d 114, 119-20 (2d Cir.1980) ("Whether or not the information whose disclosure is requested under FOIA was furnished ... on the express or implied understanding that it was to be kept confidential, however, is a question of fact to be determined with each request."). As determined by the court on the basis of a "functional" analysis of the document, see Diamond v. Federal Bureau of Investigation, 707 F.2d 75, 78 (2d Cir.1983), the foreign official did not make this statement in order to...