Dunaway v. Webster

• Decision Date: 09 July 1981
• Docket Number: No. C-77-0907 RFP.,C-77-0907 RFP.
• Citation: 519 F. Supp. 1059
• Parties: David K. DUNAWAY, Plaintiff, v. William H. WEBSTER, et al., Defendants.
• Court: U.S. District Court — Northern District of California

519 F. Supp. 1059

David K. DUNAWAY, Plaintiff, v. William H. WEBSTER, et al., Defendants.

No. C-77-0907 RFP.

United States District Court, N. D. California.

July 9, 1981.

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Steven L. Mayer, San Francisco, Cal., for plaintiff David K. Dunaway.

G. William Hunter, U. S. Atty., William T. McGivern, Jr., Asst. U. S. Atty., San Francisco, Cal., for defendant William H. Webster.

PECKHAM, Chief Judge.

This action, whose origins date back over five years, has become, to paraphrase another judge's characterization of an earlier case, a Frankenstein monster posing as a suit under the Freedom of Information Act, 5 U.S.C. § 552 ("FOIA"). See Eisen v. Carlisle and Jaquelin, 391 F.2d 555, 572 (2d Cir. 1968). This court has now reviewed almost 350 documents in camera to consider if the various exemptions claimed by the government were proper. Having waded through this mass of documents and claims of exemption, we well understand why courts have generally avoided the quagmire of in camera inspections under the FOIA, particularly where a large number of documents are at issue. See Fensterwald v. United States Central Intelligence Agency, 443 F.Supp. 667, 669 (D.D.C.1977). It is the court's hope that the rulings made today will be used by the parties as a guide to resolving the remaining disputes over the exemptions claimed in the documents which were not inspected in camera. Id.

David Dunaway wrote to the Federal Bureau of Investigation ("FBI") on May 23, 1976, requesting all materials in the FBI's files concerning The Almanac Singers, a musical group which performed from 1940 until 1945; The Weavers, a musical group which performed nationally from 1949 until 1962; People's Songs, Inc., an organization of songwriters which published the People's Songs Bulletin from 1946 until 1950; and People's Artist, an organization of musicians which existed from 1945 until 1952.¹ After a series of communications between Mr. Dunaway, the FBI, and other government agencies, which were the originating agencies for some of the relevant documents, some of the documents in the files were released in full, some were released in part, and some were withheld in their entirety.

This action was filed on May 4, 1977. On October 13, 1977, the parties stipulated to an order entered by Judge Poole,² referring the matter to a magistrate for in camera inspection of some of the documents which were withheld entirely or in part. To make such an examination manageable, the parties agreed that the plaintiff would select a portion of the documents to be actually inspected by the magistrate. The parties apparently presumed that the magistrate's decision would allow them then easily to apply its guidelines to the remaining documents to determine if any further material from the other documents should be released. The plaintiff selected approximately 340 documents to be examined.

After a long period of delay, most of which was attributable to the continuing failure of the government to turn over the relevant documents, the magistrate issued preliminary findings in October 1979, upholding the claimed exemptions in their entirety. Those findings were made final on January 30, 1980.

This matter then returned to this court, in accordance with the prior stipulation.³ The court issued an order on June 25, 1980, requiring the government to submit proposed findings of fact which would provide the substantiation for the claimed exemptions which had not been provided either by the original affidavits filed by the government, or, unfortunately, by the findings of the magistrate. This court stated in that order that it felt it could not rule on the basis of the record before it, unless it was willing to do so as a matter of faith. Not only would it not do so, but it could not do so under the law. Since the FOIA clearly places the burden of proof on the government, 5 U.S.C. § 552(a)(4)(B), the court ordered the government to produce evidence sufficient to carry that burden. Church of Scientology of California v. U. S. Department of the Army, 611 F.2d 738, 742-43 (9th Cir. 1979) (in camera inspection is not a substitute for government's burden of proof). In response, the defendants simply (1) referred the court to the affidavits which they had already submitted and which the court had already indicated were inadequate, and (2) repeated their recitation of conclusory findings which tracked the language of the statute.

Because of the continued failure of the government to meet its burden of proof, this court on August 4, 1980 ordered that the documents be released in their entirety.

The government moved for reconsideration of this order. In its papers, the government finally indicated that it was ready to meet at least one of the court's requests, that it submit a unified affidavit, as per Founding Church of Scientology of Washington, D. C. v. Bell, 603 F.2d 945, 948-49 (D.C.Cir.1979). There was no assurance provided, however, that the government could provide more particularized justifications for its claims. In fact, the affidavit of Special Agent Price, submitted with the government's moving papers, made it very clear that the government had no intention of providing any further justifications for those deletions made pursuant to 5 U.S.C. § 552(b)(1).⁴

Despite the inadequacies of the government's showing, the court decided to grant the motion for reconsideration. A great number of documents were at issue, the release of many of which it was claimed would damage national security and breach assurances of confidentiality made to third parties. The court also recognized that the inspection of the documents by the magistrate had been agreed to by both the parties and by the court itself. The magistrate had upheld the deletions in their entirety. Despite the inadequacy of his report, the agreement of the parties and the court to the in camera inspection and the outcome of that inspection put the matter in a different posture than if the court was considering the issue on a clean slate. The court also felt that an in camera examination of the documents might well result in a speedier final disposition of this matter than would forcing the circuit court to review an order releasing the documents in toto because of the inadequate record.

The court therefore agreed on October 3, 1980 to examine the 340 documents in camera. The court began immediately to examine the 143 documents for which claims of exemption under 5 U.S.C. § 552(b)(1) had been made, since the government was not willing to come forward with any further justification for its claims as to those documents. The other 197 documents were submitted to the court for examination 30 days later. The 30-day delay was designed to give the government yet another chance to file a unified affidavit which would provide the necessary justifications for its assertions as to those documents. The affidavit filed on November 3, 1980 by Special Agent David S. Byerly was still inadequate in some respects. Some of those inadequacies were overcome by the in camera inspection. Those gaps in the government's presentation not filled by the examination of the documents result today in rulings against the defendants. After over four years of litigation, numerous opportunities to amend the record, and repeated admonishment by the court that the government had failed to meet its burden of proof, justice demands that the plaintiff finally prevail as to those claims of exemption which remain unjustified. To second guess the government's arguments or to give the government any further opportunity to provide adequate justifications would make a mockery of the provisions of the FOIA which place the burden of proof on the government and which provide for a speedy judicial resolution of disputes under the Act, 5 U.S.C. § 552(a)(4)(D).

On the other hand, the court felt a great obligation to be particularly sensitive to the rights of third parties who are unrepresented in this action and yet who have a great stake in the disclosure or nondisclosure of much of the material at issue. This case is not like many requests under FOIA, where the material being requested concerns either the individual making the request, or some government project which only incidentally might touch on information provided by or concerning private individuals. E. g., Hayden v. National Security Agency, 608 F.2d 1381 (D.C.Cir.1979), cert. denied, 446 U.S. 937, 100 S.Ct. 2156, 64 L.Ed.2d 790 (1980); Hardy v. Bureau of Alcohol, Tobacco, and Firearms, 631 F.2d 653 (9th Cir. 1980). Here, much of the information concerns private persons who may or may not wish the information about them to be made public. In this context, the court had to be concerned that the interests of these individuals not be ridden over roughshod because of the government's dilatory tactics.⁵

With this in mind, we will now turn to a discussion of the claimed exemptions. The sheer volume of claims of exemption even in just those documents examined in camera prevent a detailed discussion as to every single claim. Instead, this opinion will discuss in general terms the categories of claimed exemptions and the type of documents for which they were claimed. The discussion will indicate how the court viewed such claims as applied to those particular types of documents. The appendix of this opinion then will go through all the deletions one by one and indicate summarily the court's ruling — either upholding the claim, denying it, or upholding it in part and denying it in part.

In considering all of the claimed exemptions, the court has been guided by the fact that it is to consider the application of the exemptions de novo, and that the burden of proof remains on the government. 5 U.S.C. § 552(a)(4)(B); Hayden v. National Security Agency, supra, 608 F.2d at 1384.

A. 5 U.S.C. § 552(b)(1)

The 1974 amendments to the FOIA made...