Irons v. Bell

• Decision Date: 27 March 1979
• Docket Number: No. 78-1350,78-1350
• Citation: 596 F.2d 468
• Parties: 4 Media L. Rep. 2465 Peter Hanlon IRONS, Plaintiff, Appellee, v. Griffin B. BELL et al., Defendants, Appellants.
• Court: U.S. Court of Appeals — First Circuit

Page 468

596 F.2d 468

4 Media L. Rep. 2465

Peter Hanlon IRONS, Plaintiff, Appellee, v. Griffin B. BELL et al., Defendants, Appellants.

No. 78-1350.

United States Court of Appeals, First Circuit.

Argued Dec. 5, 1978.

Decided March 27, 1979.

Patricia G. Reeves, Atty., App. Staff, Civil Division, Dept. of Justice, Washington, D. C., with whom Barbara Allen Babcock, Asst. Atty. Gen., Washington, D. C., Edward F. Harrington, U. S. Atty., Boston, Mass., and Leonard Schaitman, Atty., App. Staff, Civil Division, Dept. of Justice, Washington, D. C., were on brief, for defendants, appellants.

Peter H. Irons, on brief, pro se.

Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.

COFFIN, Chief Judge.

This is an appeal in a suit brought pursuant to the Freedom of Information Act (FOIA) and the Privacy Act. 5 U.S.C. §§ 552 & 552a. The government appeals from that portion of the district court's order which required the Federal Bureau of Investigation (FBI) to release to plaintiff-appellee twenty-five documents allegedly immune from disclosure under Exemption 7(D) of the FOIA. 5 U.S.C. § 552(b)(7)(D). ¹ On cross motions for summary judgment, the district court ruled that the records in issue were not compiled for "law enforcement purposes" and therefore were not covered by the exemption claimed. We reverse and remand.

The turmoil of the 1960's and the response of the FBI to that unrest are at the heart of this case. Appellee was a student activist, civil rights organizer, and draft resister. He is now an attorney. In April of 1975 appellee filed a FOIA and Privacy Act request with the FBI for release of:

"All records, reports, notes, memoranda and any and all other material prepared by, received by, or otherwise in the possession of the Federal Bureau of Investigation, relating to Peter Hanlon Irons."

The FBI released the major portion of two main investigative files on appellee one concerning his violation of the Selective Service Act and the other resulting from his application for a Presidential Pardon of that violation. The FBI's record search also revealed a number of "see" or cross references to appellee in files resulting from investigation of various political organizations with which appellee had been associated and in so-called "control" files on such subjects as all race-related demonstrations taking place in the state of Maryland. The FBI claimed that much of this material was exempt under various provisions of FOIA. Plaintiff brought suit to compel release.

Although the FBI moved with glacial celerity throughout the proceedings and continually opposed In camera inspection of unclassified documents, much of the disputed material was ultimately released and appellee compromised on a number of his claims. Most of the documents allegedly exempt under 7(D) were released in expurgated form with everything on the page, except appellee's name, blocked out. See 5 U.S.C. § 552(b) (reasonably segregable portions of a record must be released after deletion of exempt material). By the time the district court was prepared to rule on the cross motions for summary judgment, the FBI had narrowed its 7(D) claim to include only information that tended to reveal the identity of a confidential source. No claim was made under the provision of 7(D) relating to information obtained solely from a confidential source in the course of a criminal investigation. Appellee in turn conceded that the names of confidential sources need not be revealed. Nevertheless, appellee argued before the district court that the exemption for information tending to reveal the identity of a confidential source did not apply because the investigations involved were illegal surveillance and harassment of political organizations and activities. In response, the FBI filed an affidavit of Special Agent Nugent, purporting to set forth the law enforcement purpose underlying each of the files in which appellee's name appeared. On the basis of the affidavit, without In camera inspection, the district court held that the documents represented "routine monitoring of various activities". The court clarified its intent in an order granting a stay pending appeal, stating that it was "persuaded that the files represent unfocused domestic monitoring for purposes deemed generally prophylactic and were not generated 'for law enforcement purposes' within the meaning of 5 U.S.C. § 552(b)(7)."

We begin our review of this conclusion by sorting out the various statutory grounds urged by appellee to support the district court's holding. Specifically, appellee argued before the district court and at length before this court that the Privacy Act significantly narrows the scope of FOIA exemptions for law enforcement records. Appellee is correct that under § 552a(g), FOIA exemptions do not provide a ground to withhold material available under the Privacy Act. Moreover, under § 552a(e)(7), the kind of general monitoring of associations involved here is illegal "unless pertinent to and within the scope of an authorized law enforcement activity." ² Nevertheless, we find that the Privacy Act adds nothing to appellee's rights under the FOIA. ³

First, although the Privacy Act bans the "maintenance" of general records on associations, we are not certain that Congress intended to reach files that may have been legally compiled prior to passage of the Act. Moreover, even if present "maintenance" of records concerning activities protected by the First Amendment is illegal under § 552a(e)(7), the Privacy Act does not make such illegality grounds for release. ⁴

Second, appellee argues at length that the legislative history of the Privacy Act makes clear that investigative records may not be exempted for longer than is necessary to commence criminal prosecution. S.Rep. No. 93-1183, 93d Cong., 2d Sess. (1974), Reprinted in (1974) U.S.Code Cong. & Admin.News pp. 6916, 6989. Unfortunately for appellee, the compromise version of the Act, drafted by House and Senate committee staffs and presented on the floor without committee consideration or report, eliminated the Senate's special restriction on continued exemption of law enforcement investigative records. 120 Cong.Rec. 40400-09. The plain language of the statute as enacted allows an agency to promulgate regulations exempting "investigatory material compiled for law enforcement purposes". 5 U.S.C. § 552a(k)(2). None of the additional conditions found in Exemption 7 of FOIA, such as disclosure of a confidential source, need be met before the Privacy Act exemption applies. The Department of Justice has promulgated the necessary regulations to exempt FBI records in 28 C.F.R. § 16.96 (1976). Thus, the Privacy Act adds nothing to appellee's rights under FOIA.

We turn next to the problem found by the trial court: lack of law enforcement purpose. For reasons set forth below, we hold that the failure of the Nugent affidavit to establish such a purpose was not a germane factor. But we nevertheless review the sufficiency of the affidavit because the nature of its contents affects our ultimate decision on the continued need for an In camera inspection. We have carefully examined the Nugent affidavit, and we agree with the trial court that if the FBI were required to establish a law enforcement purpose in order to avail itself of Exemption 7, this affidavit would be inadequate. Many of the law enforcement purposes alleged in the Nugent affidavit are little more than self-serving declarations that do not illustrate even an ephemeral possibility of enforcement of federal laws. See Rural Housing Alliance v. United States Dep't of Agric., 162 U.S.App.D.C. 122, 498 F.2d 73, 82 n. 48 (1974). Such bare conclusory allegations would not suffice to establish an essential fact concerning the applicability of an FOIA exemption. See Weissman v. Central Intelligence Agency, 184 U.S.App.D.C. 117, 565 F.2d 692, 697 (1977); Vaughn v. Rosen, 157 U.S.App.D.C. 340, 484 F.2d 820 (1973); Cowles Communications, Inc. v. Dep't of Justice, 325 F.Supp. 726, 727 (N.D.Calif.1971). ⁵

In refusing to credit the FBI's affidavit, we do not imply that the investigations involved were necessarily witch hunts. In camera inspection of the documents and the files in which they are contained, along with In camera testimony on a sealed record if necessary, See Lesar v. Dep't of Justice, 455 F.Supp. 921 (D.D.C.1978), might fully establish a law enforcement purpose. ⁶ We state only that the Nugent affidavit either fails to go far enough to establish or, in some cases, seems to contradict the factual existence of a law enforcement purpose. In most cases, the affidavit reveals no more than the FBI's knowledge of the existence of an association and of its political opposition to governmental policies. In a few cases, the oblique allegation is made that "information" about the organization was received at FBI headquarters. ⁷ In some cases, the affidavit reveals that the FBI itself, after initial investigation, thought there was no reason to suspect an organization. ⁸ Yet, although the investigation was technically closed, informants continued to supply information to the file.

We do not accept the proposition that merely associating and expressing opposition to government policies, without more, triggers an FBI obligation to conduct a lengthy investigation and infiltration of political and religious associations. ⁹ The FBI's conclusory invocation of Executive Order 10450 and other internal security laws ¹⁰ does not alter this conviction. An affidavit dealing with this type of investigation should at least allege facts establishing a colorable claim of a rational nexus between the organizations and activities being investigated and violations of federal laws. The allegations relating to some of the documents in issue are sufficient to establish such a nexus. Nevertheless, we must agree with the trial court that the affidavit is insufficient as to many documents.

Those...