Fiumara v. Higgins, Civ. No. 82-403-D.

• Citation: 572 F. Supp. 1093
• Decision Date: 30 September 1983
• Docket Number: Civ. No. 82-403-D.
• Parties: Joseph J. FIUMARA v. Stephen E. HIGGINS, Acting Director, Bureau of Alcohol, Tobacco and Firearms, Department of the Treasury; Bureau of Alcohol, Tobacco and Firearms, Department of the Treasury.
• Court: U.S. District Court — District of New Hampshire

572 F. Supp. 1093

Joseph J. FIUMARA v. Stephen E. HIGGINS, Acting Director, Bureau of Alcohol, Tobacco and Firearms, Department of the Treasury; Bureau of Alcohol, Tobacco and Firearms, Department of the Treasury.

Civ. No. 82-403-D.

United States District Court, D. New Hampshire.

September 30, 1983.

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Steven E. Feld, Portsmouth, N.H., for plaintiff.

Robert J. Lynn, Asst. U.S. Atty., Concord, N.H., for defendants.

OPINION

DEVINE, Chief Judge.

Introduction

This action concerns the Freedom of Information Act ("FOIA"). Pursuant to FOIA, plaintiff seeks disclosure of information. The action is before the Court on cross motions for summary judgment. Jurisdiction is founded upon 28 U.S.C. § 1331 and 5 U.S.C. § 552(a)(4)(B).

The smoke has not cleared from the fire that occurred on March 1, 1980, at the Drop Anchor Motel in Hampton, New Hampshire. The fire led to an arson investigation conducted by the Bureau of Alcohol, Tobacco and Firearms, United States Department of the Treasury ("ATF"). Plaintiff, an owner of the motel, was a subject of the investigation. No charges or prosecution resulted from the investigation.

Defendant generated information throughout the investigation. Plaintiff sought this information through defendant's administrative process.¹ By letter dated February 17, 1982, plaintiff filed his initial FOIA request for all documents maintained by ATF regarding plaintiff. ATF located 36 pages determined to be within the scope of the request. By letter dated May 3, 1982, the Chief, ATF Disclosure Branch, disclosed 29 pages with deletions and seven pages in their entirety.

By letter dated May 10, 1982, plaintiff appealed to ATF regarding the withheld information and indicated that he believed additional records about him had not been disclosed. By letter dated June 16, 1982, the Acting Director of ATF upheld the decision of the Chief of ATF's Disclosure Branch with respect to the 29 pages disclosed with deletions. ATF also noted that it had found 54 additional pages, of which twenty-one were disclosed entirely, two pages were disclosed with deletions, and 31 pages were withheld entirely.

Plaintiff instituted this civil action on July 20, 1982. In preparation of defendant's case, the Assistant United States Attorney requested that ATF determine whether additional information concerning plaintiff existed. ATF discovered such additional information in the Post of Duty file in Boston. ATF alleged that because the Concord, New Hampshire, ATF office had been closed, the complete records had been forwarded to ATF in Boston. Apparently during the initial administrative requests, only the main case file was found and sent to ATF headquarters. The work file, i.e., the information found after plaintiff filed his complaint and the United States Attorney's office made its request, yielded 140 pages disclosed to plaintiff entirely, 27 pages disclosed to plaintiff with deletions, and 456 pages withheld from plaintiff entirely.

In sum, 713 pages were found by defendant to be within plaintiff's request. Of these, 168 pages were disclosed entirely, 58 pages were disclosed with deletions, and 487 pages were withheld in their entirety.

On May 24, 1983, the Court ordered defendant to file within 30 days a detailed index that would assist the Court in its efforts. The defendant ably complied, and the Court proceeded forthwith.²

Both parties move for summary judgment. Summary judgment is proper only if, viewing the record in the light most favorable to the nonmoving party, no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Early v. Eastern Transfer, 699 F.2d 552, 554-55 (1st Cir.1983); Condon v. Local 2944, United Steelworkers of America, 683 F.2d 590, 594 (1st Cir.1982). A dispute of fact is material if it affects the outcome of the litigation and is genuine if manifested by substantial evidence going beyond the allegations of the complaint. Pignons S.A. de Mecanique de Precision v. Polaroid Corporation, 657 F.2d 482, 486 (1st Cir.1981). The moving party bears the burden of showing that there is no genuine issue as to all the material facts necessary to entitle him to judgment. Donovan v. Agnew, 712 F.2d 1509 at 1515 (1st Cir.1983). Once the movant has made the required showing, the nonmoving party opposing summary judgment must demonstrate the existence of a genuine issue of material fact. Id.; White v. Hearst Corporation, 669 F.2d 14, 17 (1st Cir.1982). Summary judgment should not be granted to an agency if it does not submit proper documentation or if the documents submitted show that there are controverted facts. 15 Fed.Proc., L.Ed. § 38:313 (1983). Summary judgment to a plaintiff should not be granted unless, upon review of the index, the Court finds that the agency has clearly failed to establish that documents are exempt. Id.; see also Irons v. Bell, 596 F.2d 468, 471, n. 6 (1st Cir.1979) (even though burden of establishing applicability of exemption is on agency, it is risky to grant summary judgment when only competent evidence before court is agency's admittedly flawed affidavit).

The Court now undertakes a review de novo. 5 U.S.C. § 552(a)(4)(B). The ultimate decision regarding the propriety of ATF's denial of access to information rests with the Court; the Court is not limited merely to a determination of whether ATF abused its discretion. Ray v. Turner, 587 F.2d 1187, 1190 (D.C.Cir.1978) (per curiam).

FOIA is our free society's response to unwarranted suppression of information by government. Congress sought principally to open administrative processes to the scrutiny of the press and general public when it passed FOIA. Renegotiation Board v. Bannercraft Clothing Co., Inc., 415 U.S. 1, 17, 94 S.Ct. 1028, 1037, 39 L.Ed.2d 123 (1974). The basic purpose of FOIA reflects a general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language. Department of the Air Force v. Rose, 425 U.S. 352, 360-61, 96 S.Ct. 1592, 1598-1599, 48 L.Ed.2d 11 (1976) ("Rose"). These exemptions are to be narrowly construed. Federal Bureau of Investigation v. Abramson, 456 U.S. 615, 630, 102 S.Ct. 2054, 2063, 72 L.Ed.2d 376 (1982); New England Medical Center Hospital v. National Labor Relations Board, 548 F.2d 377, 384 (1st Cir. 1976). The primary purpose of FOIA, however, is not to serve as a substitute for private litigants' civil or criminal discovery. See Baldrige v. Shapiro, 455 U.S. 345, 360 n. 14, 102 S.Ct. 1103, 1112, n. 14, 71 L.Ed.2d 199 (1982); Giza v. Secretary of Health, Education and Welfare, 628 F.2d 748, 751 (1st Cir.1980). FOIA instead clearly gives any member of the public as much right to disclosure as one with a special interest therein. National Labor Relations Board v. Sears, Roebuck & Co., 421 U.S. 132, 149, 95 S.Ct. 1504, 1515, 44 L.Ed.2d 29 (1975). Unless the requested material in the possession of a federal agency falls within one of the statutory exemptions, it must be made available on demand to any member of the general public. National Labor Relations Board v. Robbins Tire & Rubber Co., 437 U.S. 214, 221, 98 S.Ct. 2311, 2316, 57 L.Ed.2d 159 (1978).

Defendant withheld information under the following exemptions:

(b) This section does not apply to matters that are —

....

(2) related solely to the internal personnel rules and practices of an agency "Exemption 2";

(3) specifically exempted from disclosure by statute (other than section 552b of this title 5 USCS § 552b), provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld "Exemption 3";

....

(6) personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy "Exemption 6";

(7) investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would ... (C) constitute an unwarranted invasion of personal privacy "Exemption 7(C)", (D) disclose the identity of a confidential source and, in the case of a record compiled by a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence investigation, confidential information furnished only by the confidential source "Exemption 7(D)", (E) disclose investigative techniques and procedures "Exemption 7(E)", or (F) endanger the life or physical safety of law enforcement personnel "Exemption 7(F)"; ....

5 U.S.C. § 552. These limited exemptions do not obscure the basic policy that disclosure, not secrecy, is the dominant objective of FOIA. Rose, supra, 425 U.S. at 361, 96 S.Ct. at 1599.

Information Previously Released to Unauthorized Third Parties

The Court addresses plaintiff's troubling contention that defendant now seeks to withhold information it previously released to unauthorized third parties. Plaintiff claims that defendant disclosed to third parties information concerning plaintiff's telephone and/or financial records. See Deposition of Morris J. Torf, p. 117. Defendant does not respond.

It would be grossly unfair to permit records to be available to unauthorized third parties and at the same time deny access to the FOIA requester. See Cooper v. Department of Navy of United States, 594 F.2d 484, 486 (5th Cir.), cert. denied, 444 U.S. 926, 100 S.Ct. 266, 62 L.Ed.2d 183 (1979); see also Cooper v. Internal Revenue Service, 450 F.Supp. 752, 754 (D.D.C.1977) (release of evidentiary exhibits to court, thus opening information to public inspection, waives confidentiality exemption). Consequently, justice requires that defendant release to plaintiff all records sought by plaintiff which were...