Friedman v. FBI

• Decision Date: 05 October 1984
• Docket Number: Civ. A. No. C78-309A.
• Citation: 605 F. Supp. 306
• Parties: Roger FRIEDMAN, Plaintiff, v. FEDERAL BUREAU OF INVESTIGATION, et al., Defendants.
• Court: U.S. District Court — Northern District of Georgia

605 F. Supp. 306

Roger FRIEDMAN, Plaintiff, v. FEDERAL BUREAU OF INVESTIGATION, et al., Defendants.

Civ. A. No. C78-309A.

United States District Court, N.D. Georgia, Atlanta Division.

October 6, 1981.

October 5, 1984.

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Roger Friedman, pro se.

Myles Eastwood, Asst. U.S. Atty., Atlanta, Ga., for defendants.

Supplemental Order of Court October 5, 1984.

ORDER OF COURT

HORACE T. WARD, District Judge.

This action is brought pursuant to the Freedom of Information Act against the Federal Bureau of Investigation and the Justice Department as a whole. Jurisdiction in this court is founded on 5 U.S.C. § 552(a)(4)(B). Plaintiff first sought the release of information from defendants by letter dated August 31, 1977.¹ Also in 1977, plaintiff mailed requests to the San Francisco, New York, Atlanta, and Boston field offices of the FBI pursuant to then regulations establishing field offices as separate record systems. On January 28, 1978, plaintiff mailed an FOIA request to the Department of Justice's Office of Management and Finance, and was advised of an indefinite delay due to need of consultation with the FBI. At the time of the filing of the complaint on February 24, 1978, plaintiff had received no documents. By Order dated May 3, 1978, Judge O'Kelley denied as premature plaintiff's Vaughn v. Rosen (I), 484 F.2d 820 (D.C.Cir.1973) cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974) motion for itemization of withheld records. On April 11, 1978, the FBI delivered some of the documents requested by plaintiff. By Order dated September 6, 1978, Judge O'Kelley granted plaintiff's Vaughn motion as to the FBI so that plaintiff would have sufficient information with which to challenge FBI claims of exemption. The itemization was filed on October 6, 1978, in the form of an Affidavit and as an answer to an interrogatory.

As a threshold matter, the court must clarify the materials encompassed within the plaintiff's action. Plaintiff contends that the scope of his action includes requests sent to the field offices in 1977, and to the following field offices in May of 1978: Atlanta, Savannah, Baltimore, Charlotte, N.C., Detroit, Jackson, Miss., and Columbia, S.C. Plaintiff's 1978 request makes specific reference to records compiled on the Mt. Beulah conference of Southeastern Underground Newspapers held in October, 1970, and the Ann Arbor Conference held in July, 1979. Materials located by the Jackson office have been withheld pursuant to the national security exemption of the FOIA, and documents at the Charlotte office have been destroyed. Plaintiff's position regarding the scope of the action led him to include in his motion for summary judgment, certain "Undisputed Material Facts." The facts refer to inadequate or unjustified government processing of the request on the Mt. Beulah Conference and illegal destruction of documents in Charlotte. Plaintiff also seeks court orders to produce all records requested.² However, it cannot be disputed that the complaint dealt only with the Washington and Boston FOIA requests. The defendants contend that those requests are the only ones material to this lawsuit. Defendants have structured their response to the motion for summary judgment, their cross-motion for summary judgment, and their statement of material facts in support of their motion, in line with that contention. The court will not comment on the merits of defendants' or plaintiff's arguments regarding Local Rule 91.72. Technical discussions of Local Rules are inappropriate in the face of the necessity to clarify the proper scope of this action.

Plaintiff relies on the September 6, 1978 Order of Judge O'Kelley to justify including field office requests within this action. Judge O'Kelley ruled that plaintiff's Vaughn v. Rosen motion, originally filed on February 27, 1978 and denied as premature, should be granted as to the FBI so that plaintiff would have sufficient information with which to challenge claims of exemption. Judge O'Kelley also ruled that the plaintiff was deemed to have exhausted administrative appeals due to delay by other divisions of the Department of Justice. Therefore, the motion of defendants to stay proceedings was denied, and plaintiff's motion to compel was granted. Defendants' answers to plaintiff's interrogatories were filed on October 6, 1978. The court does not read Judge O'Kelley's ruling to enlarge the scope of the action beyond those requests considered in the complaint and original Vaughn motion. Accordingly, disputes specifically concerning documents outside this action will not be addressed. Thus, the court rules that the standards for determining whether the FOIA has been complied with should be applied to the Washington and Boston requests only. All the Boston documents are covered by the FBI national office release, but some material has been withheld in reliance on FOIA exemptions.

I. FBI Compliance with Plaintiff's Request under the FOIA

The FBI maintains index cards in two general categories. "Main" cards bear the name of an individual, organization, activity or the like, which is the main subject of a file in the system. A "see" card bears the name of an individual, organization, activity or the like, which has been cross-referenced with the "main" card's subject. The second King Affidavit, as amended, established that the "see" cards refer a reader to all documents in which a subject is indexed. The FBI indexes names and information considered relevant for future retrieval. The affidavit states that "`see' references contain insufficient information by which a positive identification can be made with a given name ... receipt of additional information can assist in making positive identification or in locating the file in which the requested information is maintained." Apparently, the relationship between the request and the file appearing on the "see" card is not alone always enough to tell the FBI what part of the "see" file is requested or should be revealed.

In the case at bar, plaintiff requested information on himself "and his activities," and he listed files which he requested to be searched. The search was conducted by locating those files which appeared on "main" and "see" cards. Plaintiff argues that this search was not responsive to the request. The FOIA requires production of all records "reasonably described by the request." 5 U.S.C. § 552(a)(3). The defendants describe the request as one seeking "all documents on himself." Such a description acts to justify the scope of the search, but it is not helpful in dealing with the plaintiff's argument. The request clearly seeks access to materials on FBI investigations of political activities with which he was affiliated. The problem occurs because personal involvement in any given activity may, or may not, result in a "see" card. Thus, undisputed facts pose the following legal question: Is the FBI fulfilling its duties under the FOIA by searching only the "main" and "see" cards when the plaintiff includes a request for materials about investigations of specified activities in which he was involved?

A similar question has been addressed by the District Court of Massachusetts. Stern v. United States, No. 77-3812-C (D.Mass. August 25, 1980). The plaintiff requested that the FBI provide him with any documents in the FBI's possession which referred to plaintiff or any of his alleged activities. He also listed several organizations with which he was involved, such as the National Lawyers Guild. The plaintiff claimed that a search of the indices is incomplete if limited to the FBI's "main" and "see" cards. However, the court ruled that FOIA responsibilities are satisfied by a search of its general indices. The court reasoned that it is in the best interests of the FBI to index all references which it might need to retrieve in the future. Further, that interest acts as a safeguard against any danger that the FBI might narrow the scope of its indices in an effort to narrow the application of the FOIA to its agency.

This court agrees with the reasoning of the District Court of Massachusetts. Accordingly, the FBI's "main" and "see" search policy comports with FOIA responsibilities when a request seeks materials pertaining to an individual and his activities.³ However, plaintiff in the instant case appears to argue that the scope of his request is not restricted to information "pertaining to" himself. He appears to contend that the request seeks materials about investigative material on organizations and activities beyond those referring to his own personal involvement. If this was the case, then a search limited to "main" and "see" materials would not be fully responsive to the request. However, the demand for materials which do not focus on personal involvement seeks matter not "reasonably described" by the request. 5 U.S.C. § 552(a)(3). The FBI construed the request to be one seeking information "pertaining to the subject" of materials. The agency thus technically avoids the mandate of 28 C.F.R. § 16.3(d)(2) (1980), giving the requester an opportunity to confer with personnel to reformulate a request which was denied on grounds that it did not reasonably describe records sought. Since the request is at best ambiguous, the court does not find that defendant failed to make a "good faith attempt to assist the requester." See Ferri v. Bell, 645 F.2d 1213 (3rd Cir.1981).

II. Exemptions

Only a portion of the documents returned by the "see" reference cards were released to plaintiff. The FBI first consulted its "main" index which indicated a file on plaintiff under "Security Matter-New Left." There were eight references on a "see" card, and defendants processed the referenced material "pertaining to" plaintiff. Second King Affidavit, ¶ 12. Withholding was based on FOIA exemptions (b)(7)(C) and (b)(7)(D). Under 5 U.S.C. § 552(b), agency records are exempt from...