Jenks v. United States Secret Service, C-3-81-173.

• Decision Date: 12 June 1981
• Docket Number: No. C-3-81-173.,C-3-81-173.
• Citation: 517 F. Supp. 307
• Parties: Harold J. JENKS, Plaintiff, v. UNITED STATES SECRET SERVICE, Defendant.
• Court: U.S. District Court — Southern District of Ohio

517 F. Supp. 307

Harold J. JENKS, Plaintiff, v. UNITED STATES SECRET SERVICE, Defendant.

No. C-3-81-173.

United States District Court, S. D. Ohio, W. D.

June 12, 1981.

Jeffrey E. Froelich, Dayton, Ohio, for plaintiff.

Robert J. Fogarty, Dayton, Ohio, for defendant.

DECISION AND ENTRY OVERRULING CROSS MOTIONS FOR SUMMARY JUDGMENT; CERTAIN PROCEDURES ORDERED OF GOVERNMENT

RICE, District Judge.

This action was commenced under the Freedom of Information Act (FOIA), 5 U.S.C. § 552 (1976), by Harold J. Jenks against the United States Secret Service. On approximately December 4, 1980, plaintiff, who is presently awaiting trial in this Court on a five count indictment for alleged illegal counterfeiting activities, made his initial request for information from defendant, seeking all records and files concerning himself and John H. Puckett. Puckett, who is not a party to this action, is expected to appear as a government witness at plaintiff's criminal trial, and is in the government's Witness Protection Program.

On December 31, 1980, plaintiff was informed by an FOIA officer that his records were exempt from disclosure and were, therefore, being withheld. The records concerning Puckett were not specifically mentioned in this correspondence. On January 7, 1981, plaintiff administratively appealed the denial, and again sought all information in defendant's records and files concerning both himself and Puckett. The present suit was commenced on January 29, 1981, at which time no determination had been rendered on plaintiff's appeal.

In a letter dated February 23, 1981, plaintiff was informed by Myron I. Weinstein, Deputy Director of the Secret Service, that a timely determination of plaintiff's appeal was not possible, due to a voluminous backlog. However, Deputy Director Weinstein did inform plaintiff that he had reviewed the relevant documents, and was satisfied that they had been properly withheld.

This matter is now before the Court on the parties' cross motions for summary judgment on the issue of whether defendant has properly withheld the information sought by plaintiff. For the reasons set forth below, the Court concludes that neither motion is well taken, and both are, therefore, overruled.

A. DISCUSSION

The role of the court in resolving an FOIA request dispute is set forth in 5 U.S.C. § 552(a)(4)(B) (1976). This section requires the court to "make a de novo determination of whether records were properly withheld under any of the FOIA exemption provisions." Barney v. IRS, 618 F.2d 1268, 1272 (8th Cir. 1980). See also, Kanter v. IRS, 433 F.Supp. 812 (N.D.Ill. 1977); Ray v. Turner, 587 F.2d 1187 (D.C. Cir. 1978). "The agency which seeks to deny disclosure has the burden `to prove ... that the information sought fits under one of the exemptions.'" Kanter v. IRS, 433 F.Supp. 812, 816 (N.D.Ill.1977), quoting, Vaughn v. Rosen, 484 F.2d 820, 823 (D.C. Cir. 1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974).

Because "disclosure, not secrecy, is the dominant objective of the Act," Department of Air Force v. Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 1599, 48 L.Ed.2d 11 (1976), the exemptions are to be narrowly construed. Id. Blanket exemptions are not favored by the courts. New England Medical Center Hospital v. NLRB, 548 F.2d 377, 386 (1st Cir. 1976); see also, Department of Air Force v. Rose, supra, 425 U.S. at 371-72, 96 S.Ct. at 1603-04. "As a general proposition, an agency opposing disclosure must address its objections to specific documents or specific parts of documents." Moorefield v. United States Secret Service, 611 F.2d 1021, 1023 (5th Cir. 1980).

In the case at bar, defendant has not addressed its objections to any specific documents or portions thereof. It has not apprised the Court of the number of documents involved, nor has it attempted to itemize, index, or otherwise identify the contents of the records and files, except in very general and conclusory terms. Defendant has submitted the affidavit of Myron Weinstein, Deputy Director of the Secret Service, which contains a lengthy discussion of his basis for invoking various FOIA exemptions with respect to documents which are physically located in Washington, D. C., but which does not contain a concrete description of the contents of the records. Defendant has also submitted the affidavit of Special Agent Kelley J. Stanard, which gives the following general description of the files located in Dayton, Ohio:

These documents consist of investigative reports, lab reports, inter and intra agency memoranda, grand jury exhibits, the identity of persons interviewed pursuant to this criminal investigation, the identity and personal data concerning third parties mentioned as suspects of a criminal investigation, the identity of federal law enforcement officers, and public records.

Affidavit of Stanard, para. 3. This affidavit does not indicate the volume of the files involved nor does it indicate, even in approximate terms, how many documents fall into the various broad categories.

Defendant has taken the position that all of the documents fall into the category of investigatory records compiled for law enforcement purposes, and as such, contain no information concerning plaintiff or Puckett, which is subject to disclosure under the FOIA. Stated differently, defendant has made a blanket denial of plaintiff's request on the ground that all of the information sought is exempt pursuant to 5 U.S.C. § 552(b)(7)(A) (1976) ("Exemption (7)(A)"), which provides:

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

(7) investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would (a) interfere with enforcement proceedings.

Defendant acknowledges that an agency must ordinarily justify the invocation of an FOIA exemption from specificity; however, because of the special nature of Exemption (7)(A), defendant contends that its burden is less rigorous. Defendant asserts that, on the basis of the materials submitted, the Court can and should make a generic determination that the release of the disputed documents would likely interfere with the pending enforcement proceedings, and, therefore, they need not be produced. Defendant points out that plaintiff seeks the records regarding himself and Puckett primarily to obtain information for use at his criminal trial. Thus, according to defendant, a generic determination regarding the files will serve the purpose of Exemption (7)(A), which is to "prevent harm to the Government's case in court by not allowing a litigant earlier or greater access to investigatory files than he would otherwise have." Freedom of Information Act and Amendments of 1974, Pub.L. 92-502, Source Book, Joint Committee on Printing, 94th Cong., 1st Sess. at 332-333 (statement of Senator Hart).

Having examined the defendant's affidavits, and having considered the applicable authorities, the Court does not discount the possibility that a generic determination can be made with respect to some or even all of the documents which have been withheld by defendant. However, the Court does not believe that such a determination can properly be made solely on the basis of defendant's assertion that all of the documents at issue fall into the broad category of "investigatory records," or on the basis of the materials currently before the Court.

Defendant places heavy reliance for its position on Moorefield v. United States Secret Service, 611 F.2d 1021 (5th Cir. 1980). Therein, appellant, who had twice been convicted for threatening the life of the President of the United States, sought access to the file maintained on him by the Secret Service. Id. at 1022. The agency denied the request in toto, on the ground that all of the information contained in the file was exempt under one or more of the FOIA exemptions. It did not give particularized justification for its decision. The district court approved the denial, but did so without indicating which exemptions were applicable. The Fifth Circuit made a generic determination under Exemption (7)(A) that disclosure of Moorefield's file would likely interfere with enforcement proceedings, and affirmed the decision, without requiring the agency to set forth its specific objections to disclosure, and without requiring the district court to make a finding with respect to each document claimed to be exempt.

Moorefield bears certain similarities to the case at bar. However, it is distinguishable in one crucial respect. Unlike the case at bar, the contents of Moorefield's file had been made available to the courts. The district court examined the file in camera before sustaining the agency's denial. Id. at 1023. The Fifth Circuit stated in the course of its opinion:

The documents in the Moorefield file are plainly "investigatory records" prepared for "law enforcement purposes." citation omitted They include background and other matters specifically relevant to Moorefield, and were prepared to help the Service fulfil its duty ... of ensuring the lives and safety of the President, members of his family, and certain other people.

Id. at 1024 (footnote omitted). From this description, it is reasonable to infer that the Fifth Circuit, like the district court, had first hand knowledge of the contents of the file.

Thus, while it is clear that the Fifth Circuit did make a generic determination that disclosure of Moorefield's file would likely interfere with enforcement proceedings, it is also readily apparent that the determination was based on a familiarity with the actual contents of the disputed file, and not on the agency's general and abstract description thereof. In this Court's opinion, Moorefield is, therefore, inapplicable, and does not support the type of "sight unseen" generic determination which defendant urges the Court to make in the case at bar.

Nor does NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 98 S.Ct. 2311, 57...