Dunkelberger v. Department of Justice

• Decision Date: 29 June 1990
• Docket Number: No. 88-5356,88-5356
• Parties: , 17 Media L. Rep. 2298 Lloyd DUNKELBERGER, Appellant, v. DEPARTMENT OF JUSTICE, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 779

906 F.2d 779

285 U.S.App.D.C. 85, 17 Media L. Rep. 2298

Lloyd DUNKELBERGER, Appellant, v. DEPARTMENT OF JUSTICE, et al.

No. 88-5356.

United States Court of Appeals, District of Columbia Circuit.

Argued Jan. 12, 1990.

Decided June 29, 1990.

Deborah R. Linfield, New York City, with whom Wallace A. Christensen, Washington, D.C., was on the brief, for appellant.

Nathan Dodell, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., and R. Craig Lawrence and John D. Bates, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellees.

Before SILBERMAN, BUCKLEY, and SENTELLE, Circuit Judges.

Opinion for the court filed by Circuit Judge BUCKLEY.

BUCKLEY, Circuit Judge:

Lloyd Dunkelberger, a reporter for the New York Times Regional Newspaper Group, appeals the district court's grant of summary judgment denying his request for information from the Federal Bureau of Investigation pursuant to the Freedom of Information Act. Dunkelberger had sought information relating to the alleged suspension of an FBI agent for misconduct that supposedly occurred in connection with an investigation of a prominent state official and his nephew. Because an in camera inspection of certain submitted personnel materials revealed no information warranting disclosure, we affirm the district court's decision.

I. BACKGROUND

The facts of this case spring from a Federal Bureau of Investigation probe of former Florida State Senate President Mallory Horne and his nephew, Melvin Horne, focusing on their alleged laundering of money on behalf of drug smugglers. The FBI investigation resulted in a highly publicized trial in which Mallory Horne was acquitted and his nephew convicted.

Both before and after the trial, Senator Horne maintained that the FBI had acted improperly in its investigation, specifically in its use of undercover agents, including Special Agent Matthew Pellegrino. The FBI denied an informal request from Dunkelberger for information concerning any administrative disciplinary action that might have been taken against Pellegrino relating to his participation in the Horne investigation. Thereupon, in October 1987, Dunkelberger made a formal request to the FBI under the Freedom of Information Act ("FOIA"), 5 U.S.C. Sec. 552 (1982), for access to FBI records relating to any such disciplinary action. In the request, Dunkelberger specifically asked for copies of the letter of reprimand or suspension that he alleged Pellegrino had received.

FOIA provides that an agency, upon request, must make its records "promptly available to any person" requesting them, provided the request "reasonably describes" the records sought. 5 U.S.C. Sec. 552(a)(3). FOIA exempts nine specific categories of information from its disclosure requirements. Two such exemptions are relevant here. One protects "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. Sec. 552(b)(6) ("Exemption 6"). The other exempts "records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information ... (C) could reasonably be expected to constitute an unwarranted invasion of personal privacy." 5 U.S.C. Sec. 552(b)(7)(C) ("Exemption 7(C)").

In denying Dunkelberger's request, the FBI stated that it could neither confirm nor deny the existence of the records sought by Dunkelberger, and stated that if any such records did exist, their disclosure could constitute an unwarranted invasion of personal privacy and thus would be protected under Exemptions 6 and 7(C). Dunkelberger took an administrative appeal of this decision to the Assistant Attorney General in charge of the Office of Legal Policy, who affirmed the initial decision denying disclosure under both exemptions.

Dunkelberger then brought suit against the Department of Justice to compel disclosure pursuant to 5 U.S.C. Sec. 552(a)(4)(B). The district court granted summary judgment in favor of the Department. Dunkelberger v. Department of Justice, Civ. No. 88-1432, mem. op., 1988 WL 104959 (D.D.C. Sept. 30, 1988) ("Memorandum Opinion"). The court conducted an in camera investigation of certain personnel materials submitted by the FBI and found that they were "compiled for law enforcement purposes" and thus satisfied the threshold requirement for application of Exemption 7. Id. at 2. This aspect of the ruling is not contested by the parties. The court then determined, on the basis of its in camera inspection, that Pellegrino's privacy interest "significantly outweigh[ed]" any public interest in disclosure, and observed that the public interest in the proper review of the FBI's activities "can be adequately addressed by the agency's congressional oversight committees." Memorandum Opinion at 3. Having found the information at issue "clearly within the purview" of Exemption 7(C), id., the court entered summary judgment in favor of the Department without reaching its alternative claim that the material was protected from disclosure by Exemption 6.

On appeal, Dunkelberger asserts that the district court erred (a) in refusing to order the release of the requested documents and (b) in relying on congressional oversight committees to protect the public interest in the adequate policing of agency activities. As the court's reference to the role of congressional oversight committees was not critical to its decision, we will address only the first claim of error.

II. DISCUSSION

Dunkelberger does not suggest that the FBI withheld any document from the district court that was relevant to his request. Therefore, the issue before us is whether the court was correct in ruling that the documents examined in camera were not subject to disclosure under Exemption 7(C). We do not address the applicability of Exemption 6 because the district court did not rule on that issue.

Exemption 7(C) excludes from mandatory 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 constitute an unwarranted invasion of personal privacy....

5 U.S.C. Sec. 552(b)(7)(C). As the statutory language makes clear, whether disclosure of requested law enforcement records is required turns on whether any such disclosure could reasonably be expected to result in an "unwarranted" invasion of privacy. The Supreme Court's recent decision in United States Dep't of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989), confirms that the specific reference to "unwarranted" in Exemption 7(C) "indicate[s] that a court must balance the public interest in disclosure against the interest Congress intended the Exemption to protect." Id. 109 S.Ct. at 1483.

Under the balancing test adopted by this circuit in Stern v. FBI, 737 F.2d 84, 91-92 (D.C.Cir.1984), a court must first identify the privacy interests at stake. Stern recognizes that a government employee has at least a minimal privacy interest in his own employment record and evaluation history, which includes a

general interest in the nondisclosure of diverse bits and pieces of information, both positive and negative, that the government, acting as an employer, has obtained and kept in the employee's personnel file.

737 F.2d at 91. Exemption 7(C) takes particular note of the "strong interest" of individuals, whether they be suspects, witnesses, or investigators, "in not being associated unwarrantedly with alleged criminal activity." Id. at 91-92.

Second, the court must identify the public interest in disclosure. In Stern we dealt with a request for the identity of several FBI employees...