Ferguson v. F.B.I.
| Decision Date | 09 March 1992 |
| Docket Number | D,No. 848,848 |
| Citation | 957 F.2d 1059 |
| Parties | Herman Benjamin FERGUSON, Plaintiff-Appellee, v. FEDERAL BUREAU OF INVESTIGATION, Defendant-Appellant. ocket 91-6248. |
| Court | U.S. Court of Appeals — Second Circuit |
Steven I. Froot, New York City, Asst. U.S. Atty., S.D.N.Y. (Otto G. Obermaier, U.S. Atty., S.D.N.Y., Thomas A. Zaccaro, of counsel), for defendant-appellant.
Joan P. Gibbs, New York City (Suzanne L. Shende, Center for Constitutional Rights, of counsel), for plaintiff-appellee.
Kate Martin and Mark A. Srere, Washington, D.C. (American Civil Liberties Union Foundation, of counsel), for appellee, amicus curiae.
Before KAUFMAN *, PRATT and MINER, Circuit Judges.
Defendant-appellant Federal Bureau of Investigation ("FBI") appeals from an order of the United States District Court for the Southern District of New York, Robert P. Patterson, Jr., Judge, directing the FBI to release to plaintiff-appellee Herman Benjamin Ferguson, substantial portions of FBI investigatory files, including information about confidential sources, pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. The FBI refused to provide Ferguson, a convicted felon who seeks information to clear his name, with unredacted information compiled in its files. It claimed that the information need not be disclosed pursuant to applicable FOIA exemptions. See 5 U.S.C. § 552(b)(7)(C) & (D). The district court disagreed and ordered disclosure of some of this information, as well as further in camera submissions for future consideration of other information. A panel of this court granted the FBI's motion for a stay pending appeal of the district court's order.
Ferguson is a former black activist who, in 1968, was convicted of conspiring to murder two civil rights leaders: Whitney Young, Jr., then Executive Director of the National Urban League, and Roy Wilkins, then National Director of the National Association for the Advancement of Colored People ("NAACP"). He was sentenced to serve a prison term of three and one-half to seven years, but was released on bond pending appeal. Upon learning that his last appeal had been denied, he fled the United States to live as a fugitive in the Republic of Guyana for over 18 years.
Before his arrest, Ferguson had been employed by the New York City Board of Education for almost twenty years in various Ferguson was arrested along with 16 other African-American activists, all alleged to be members of the Revolutionary Action Movement ("RAM"), the Black Brotherhood Improvement Association ("BBIA"), and the Jamaica Rifle and Pistol Club ("JRPC"). He and his 16 co-defendants were charged with conspiracy to commit advocacy of criminal anarchy and advocacy of criminal anarchy. He and another co-defendant were charged in a separate indictment with conspiracy to murder Young and Wilkins. He was ultimately convicted of the conspiracy to murder, and the charges under the first indictment were dropped, dismissed, or otherwise disposed of without trials or imposition of prison terms. This disposition made Ferguson suspicious either that some of his co-defendants were employed by, providing information to, or manipulated by, the FBI and/or the New York City Police Department ("NYPD"), or that the prosecution brought the criminal anarchy indictment merely to chill the defendants' expression of their political beliefs and deprive Ferguson of their testimony at his trial on conspiracy to murder.
positions, academic and administrative. He had been active in various civil rights and Black nationalist organizations and causes, and among other things, had been the chair of the Education Committee of the Organization of Afro-American Unity, an organization established by Malcolm X shortly before his murder
In 1989, Ferguson returned to the United States from Guyana, and was immediately arrested. He subsequently pled guilty to bail-jumping and is serving a one-year term for that offense concurrently with the original sentence for conspiracy to murder. He recently qualified for a work release program, and now spends three nights in prison and four nights at home each week. He is employed full-time as the Chair of the Department of Black History in the school of the Resurrection Roman Catholic Church, where he is also an instructor on that subject. He also teaches part-time in New York City at one of the colleges of the City University of New York.
Ferguson filed a motion for a new trial in state court, asserting his innocence in the conspiracy to murder Young and Wilkins. This motion was denied, and his application for leave to appeal to the Appellate Division, Second Department is presently pending.
In 1980, while living in Guyana as a fugitive, Ferguson, through his attorney, had submitted a FOIA request to the FBI seeking all documents relating to him at FBI headquarters. In 1984, in response to this request, the FBI produced approximately 1000 pages of information in redacted form.
Upon his return to the United States, Ferguson made a second FOIA request to the FBI, seeking documents relating to him, not only from FBI headquarters, but also from the New York and Philadelphia field offices. The FBI disclosed to Ferguson what it characterizes as all nonexempt material, including material that had been referred for review to the Department of the Army, Department of the Navy, Bureau of Alcohol, Tobacco, and Firearms, Department of State, and Central Intelligence Agency.
In addition to pursuing the present action, Ferguson has also sought records directly from the NYPD, the agency actually responsible for the investigation that led to his arrest and subsequent conviction, under the New York Freedom of Information Law.N.Y.Pub.Off.Law §§ 84-90. On November 7, 1990, the NYPD released to Ferguson records relating to its investigation of several groups with which he was associated during the 1960s.
Much of the information he seeks focuses on the NYPD and Edward Lee Howlette, an undercover New York City policeman who infiltrated the group led by Ferguson and testified extensively at his criminal trial about the conspiracy. The reason for these requests is Ferguson's belief that the government has exculpatory material or material which could lead to exculpatory evidence. He asserts that he was framed for the conspiracy to murder Young and Wilkins, and now seeks to clear his name.
Ferguson brought this action in July 1989, seeking a preliminary injunction to compel the FBI to expedite the processing of his FOIA requests. Subsequent orders of the district court set specific deadlines with which the FBI complied. The FBI also provided Ferguson with a Vaughn index, see Vaughn v. Rosen, 484 F.2d 820 (D.C.Cir.1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974), setting forth the reasons for the FOIA exemptions claimed for the material withheld.
In May 1990, Ferguson filed a motion requesting the district court to reprocess and eliminate the redactions in the material supplied by the FBI in response to his 1980 and 1989 requests, or, in the alternative, to require the FBI to prepare a more detailed index of materials the FBI claims is exempt from disclosure. The FBI cross-moved for partial summary judgment on the ground that it had fully complied with the FOIA requirements and the district court's prior orders. By order dated December 18, 1990, the district court declined to order the FBI to conduct a new search, but ordered the FBI to submit unredacted samples of documents for in camera review, and otherwise withheld decision on the pending motions. Subsequently, by order dated April 22, 1991, after completing its in camera review of the sample documents, the district court denied the FBI's motion for partial summary judgment and denied Ferguson's motions for reprocessing his FOIA requests and to compel discovery, subject to later renewal. 762 F.Supp. 1082. The court also ordered the FBI to release to Ferguson certain categories of withheld information and to make further in camera submissions.
The FBI then moved, pursuant to Fed.R.Civ.P. 59(e) and 62(b), for reconsideration, clarification, and stay of the April 22 order. The district court, by order dated September 16, 1991, denied the FBI's motion in its entirety and reaffirmed its prior orders. 774 F.Supp. 815. The FBI's motion for stay pending appeal was denied by the district court, but a panel of this court granted the stay.
It is from the effects of the April 22 and September 16 orders that the FBI appeals. These orders contained specific directions to the FBI and specifically addressed the applicability of two FOIA exemptions claimed by the FBI: exemption 7(C) for the privacy interests of the source, and exemption 7(D) for confidential source identity and information. 5 U.S.C. § 552(b)(7)(C) & (D). Throughout this opinion we also refer to the directions within the two orders as "orders". Pursuant to exemption 7(D), the FBI withheld seven categories of information relating to confidential sources. Pursuant to exemption 7(C), the FBI withheld seven categories of private personal information.
The FBI appeals from the following summarized portions of the two district court orders in which the court ordered the FBI:
(1) To submit for in camera review further proof that the FBI had compiled information on Ferguson for a legitimate law enforcement purpose. Otherwise, the court held that the information withheld pursuant to exemption 7(D) should be disclosed to Ferguson, because it was not satisfied that the FBI had met its burden of showing a legitimate law enforcement purpose sufficient to claim the exemption.
(2) To disclose all information, the original source of which was Edward Lee Howlette, an officer of the NYPD, and the NYPD itself, notwithstanding the applicability of exemption 7(D) and their status as confidential sources.
(3) To...
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