Fitzgibbon v. US Secret Service, Civ. A. No. 86-1886 (HHG).

• Decision Date: 14 September 1990
• Docket Number: Civ. A. No. 86-1886 (HHG).
• Citation: 747 F. Supp. 51
• Parties: Alan L. FITZGIBBON, Plaintiff, v. U.S. SECRET SERVICE, et al., Defendants.
• Court: U.S. District Court — District of Columbia

747 F. Supp. 51

Alan L. FITZGIBBON, Plaintiff, v. U.S. SECRET SERVICE, et al., Defendants.

Civ. A. No. 86-1886 (HHG).

United States District Court, District of Columbia.

September 14, 1990.

COPYRIGHT MATERIAL OMITTED

James H. Lesar, Washington, D.C., for plaintiff.

Philip J. Lindenmuth, Atty.-Advisor, Office of Information and Privacy, U.S. Dept. of Justice, Washington, D.C., for defendants.

MEMORANDUM

HAROLD H. GREENE, District Judge.

This is the third of three related actions brought under the Freedom of Information Act (FOIA), 5 U.S.C. § 552 et seq., to obtain documents pertaining to the regime of Rafael Trujillo, head of state of the Dominican Republic until 1961. The instant action seeks information from the U.S. Secret Service and the Federal Bureau of Investigation regarding an alleged plot by agents of the Trujillo regime to assassinate then President Kennedy or kidnap his daughter Caroline.

I

Plaintiff is an historian researching alleged plots by the Trujillo regime in the United States. In the first two actions, he sought information from the Department of State and the Central Intelligence Agency ("CIA") related to the disappearance in 1986 of Jesus de Galindez, a Basque exile and critic of the Trujillo regime. Following an in camera review of CIA documents, this Court ordered the release of some documents and the withholding of others. Fitzgibbon v. CIA, 578 F.Supp. 704 (D.D.C. 1983). Both parties appealed, but the case was subsequently remanded for reconsideration in light of the Supreme Court's decision in CIA v. Sims, 471 U.S. 159, 105 S.Ct. 1881, 85 L.Ed.2d 173 (1985). This Court reversed major portions of its prior disclosure order, but it continued to require disclosure of a small number of documents. See Memorandum of May 19, 1989. Both parties again appealed, and the Court of Appeals affirmed in part and reversed in part, permitting defendants to withhold all of the documents at issue. See Fitzgibbon v. CIA, 911 F.2d 755 (D.C.Cir.1990).

The instant action began some five years ago when the plaintiff filed a FOIA request with the Secret Service for all documents pertaining to George Waldemar Mallen Jimenez (Mallen), Rafael Anselmo Rodriguez Molins (Molins), and an alleged plot to assassinate then President Kennedy or kidnap his daughter Caroline Kennedy. A second request sought photographs of Mallen and Molins. The Secret Service and the FBI, which had possession of a number of the documents sought, released some and withheld others pursuant to various FOIA exemptions. Plaintiff then brought the instant action seeking to compel disclosure of the withheld materials. Presently pending before the Court are defendant's motion for summary judgment and plaintiff's motion for an in camera inspection and to compel a further search.

II

Plaintiff first contends that the Secret Service should be required to conduct further searches to attempt to locate other documents responsive to his FOIA request. He asserts that further searches are warranted because the Secret Service did not describe the search it undertook and did not search its Chicago, New York, Miami and Washington, D.C. field offices, and that the paucity of material produced indicates that other responsive documents exist. These claims lack merit.

Affidavits submitted by the Secret Service attest to the fact it hand-searched its Criminal Records Section and otherwise searched its Intelligence Division and its Public Affairs division, the most likely locations for responsive files. See Phillips Declaration (Criminal Records Section); McCann Declaration (Intelligence Division), and Merletti Declaration (Public Affairs Division). No field offices were searched because field office investigation reports are routinely submitted to the Intelligence Division, and because field offices maintain closed files only for five years, at which time the files are sent to the Criminal Records Section. At the time of the search, the events underlying plaintiff's FOIA request were approximately twenty years old. It is therefore extremely unlikely that any responsive documents would still be in the field offices.

Even if the plaintiff were correct about the paucity of documents produced (and he is not, for defendants have turned over a substantial number of documents) — that alone would be of no legal consequence. The issue is not whether the agencies' searches uncovered responsive documents, but rather whether they were reasonable. Meeropol v. Meese, 790 F.2d 942, 952-53 (D.C.Cir.1986). Nothing proffered by plaintiff indicates that the searches were unreasonable. Even if some responsive documents have not been produced, no search for documents that are two decades old will be totally free from error. See Meeropol v. Meese, 790 F.2d at 943. Furthermore, the FOIA requires agencies to disclose only those records in existence at the time the request is made. "The fact that a document once existed does not mean that it now exists; nor does the fact that any agency created a document necessarily imply that the agency has retained it." Miller v. Department of State, 779 F.2d 1378, 1385 (8th Cir.1985). Thus, the fact that the plaintiff received fewer documents than he anticipated may suggest that the documents never existed; that they existed, but were somehow destroyed or lost; or that they still exist but were overlooked. However, that fact does not demonstrate that the search was unreasonable.

III

The Secret Service and FBI rely on a number of FOIA exemptions in withholding documents in part or in their entirety. Each exemption will be addressed separately.

A. Exemption (b)(1): Classified Information

FOIA Exemption (b)(1) permits an agency to withhold materials that are:

Specifically authorized under criteria established by an Executive Order to be kept secret in the interest of national defense or foreign policy; and (b) are, in fact, properly classified pursuant to such executive order.

5 U.S.C. § 552(b)(1). Pursuant to this exemption, the FBI has withheld two documents. The first is an FBI memorandum dated January 30, 1967 concerning an investigation of Molins. The FBI asserts that the information, which has been classified "confidential," came from an intelligence activity and that its disclosure would reveal the existence of a particular intelligence operation, allow an assessment of its areas or targets, and disclose the identity of an intelligence source. See Declaration of Special Agent Sherry L. Davis ¶¶ 12-14. The second document is a one-page FBI memorandum dated January 31, 1967 concerning an investigation of Mallen. Information in two paragraphs was designated "secret" and was given to the United States by a foreign government with the expectation that its source and substance would remain confidential. Id. at ¶¶ 15-18. Disclosure would reveal the existence of a secret working relationship between the United States and a foreign government. Id. at 18.¹

The affidavits in support of an Exemption One claim must describe the withheld information and the justification for withholding with reasonable specificity. Abbotts v. NRC, 766 F.2d 604, 607 (D.C.Cir. 1985). The affidavits here describe the subject of the memoranda, the approximate source of the information contained therein, and the harm likely to result from disclosure. They provide "a logical connection between the information and the claimed exemption." Abbotts, 766 F.2d at 607, quoting Salisbury v. United States, 690 F.2d 966, 970 (D.C.Cir.1982).

Plaintiff maintains that the FBI has failed to specify the harm that disclosure would cause to the individuals and operations mentioned in the documents. Opp. at 7. The Court of Appeals for this Circuit rejected a virtually identical argument in Military Audit Project v. Casey, 656 F.2d 724, 740-41 (D.C.Cir.1981). In that case, plaintiffs sought the names of corporations that had cooperated or contracted with the CIA, arguing that the CIA had failed to demonstrate that disclosure would harm these companies, particularly since several of the companies' involvement with the CIA was already a matter of public record. The Court of Appeals, however, concluded that the extent of the actual injury to the companies "is not critical" since the CIA had alleged that disclosure would discourage other companies from assisting it in the future. Id. at 741.

In the instant action, the FBI makes the similar and wholly plausible assertion that disclosure of the identity of the foreign government here would effectively discourage other foreign governments from providing information to the United States. It belabors the obvious to assert that many intelligence sources need or at least want anonymity, and that any intelligence agency unable to guarantee it will quickly discover that its well of information has dried up.

Plaintiff's arguments to the contrary are tantamount to a claim that, in order to pass muster, the affidavits must be so specific as to cause the very harm that the exemption was intended to avoid. That is obviously not appropriate. It is the nature of the FOIA's national security exemption that affidavits setting forth the reasons for claiming it are necessarily somewhat vaguer than those in support of claims for other exemptions. Cf. Abbotts, 766 F.2d at 606 (agency affidavits concerning classified status of documents in a FOIA review entitled to substantial weight).

Plaintiff's relies on King v. Department of Justice, 830 F.2d 210 (D.C.Cir. 1987), to support his claim that the Vaughn index prepared by the FBI is inadequate. The King decision, however, expressly turns on the unusual Vaughn index prepared by the FBI in that case. 830 F.2d at 219-25. The Vaughn index in King was a "coded" index which did not individually describe the requested documents but rather consisted of redacted copies of the withheld documents that were annotated by codes. King, 830 F.2d at 219. These codes were, in turn, explained in a code catalogue. In ...