Londrigan v. Federal Bureau of Investigation

• Decision Date: 31 December 1981
• Docket Number: No. 79-1403,79-1403
• Citation: 670 F.2d 1164
• Parties: Joseph P. LONDRIGAN, Appellant v. FEDERAL BUREAU OF INVESTIGATION.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1164

670 F.2d 1164

216 U.S.App.D.C. 345

Joseph P. LONDRIGAN, Appellant v. FEDERAL BUREAU OF INVESTIGATION.

No. 79-1403.

United States Court of Appeals, District of Columbia Circuit.

Argued Feb. 22, 1980.

Decided Dec. 31, 1981.

Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 78-1360).

William A. Dobrovir, Washington, D. C., with whom Joseph D. Gebhardt, Washington, D. C., was on the brief, for appellant.

Mark N. Mutterperl, Atty., Dept. of Justice, Washington, D. C., with whom Earl J. Silbert, U. S. Atty., Washington, D. C., at the time the brief was filed, and Leonard Schaitman, Atty., Dept. of Justice, Washington, D. C., were on the brief, for appellee.

Before ROBINSON, Chief Judge, and MacKINNON and MIKVA, Circuit Judges.

Opinion for the Court filed by Chief Judge AUBREY E. ROBINSON, Jr.

Dissenting Opinion filed by Circuit Judge MacKINNON.

AUBREY E. ROBINSON, Jr., Chief Judge:

The controversy in this case centers on the efforts of the appellant, Joseph P. Londrigan, to uncover the identities of persons who furnished information about him to the appellee, the Federal Bureau of Investigation, during the course of an investigation of his qualifications for federal employment. Presented for decision is a question going to the very heart of the Privacy Act of 1974: ¹ What must an agency demonstrate in order to withhold information pursuant to Exemption (k)(5) on grounds that it was obtained under an implied promise of confidentiality? ² Implicitly concluding that invocation of Exemption (k)(5) by an agency requires only a minimal showing, the District Court granted summary judgment in favor of the FBI. On the basis of our interpretation of Exemption (k)(5), we find that the record before the court was insufficient to support a summary disposition. We further find that the court ruled incorrectly on two Rule 56 ³ motions made by Londrigan in an attempt to fortify his opposition to an award of summary judgment. Accordingly, we reverse the District Court's rulings and remand the case for further proceedings.

I. Background

The data specifically sought by Londrigan are the names of persons who provided the FBI with information about him in 1961, long before the advent of the Privacy Act, when he was under investigation for a position as a Peace Corps volunteer. The FBI's file includes statements from private individuals as well as from employees of schools, businesses, and state and local governmental agencies.

Londrigan initiated his endeavor to obtain his FBI file in October, 1975, when he wrote to his congressman to ask for assistance in acquiring it. His letter was forwarded to the FBI, and in March, 1976, he received copies of the materials on file, albeit with substantial deletions made assertedly under authority of Exemption (k)(5) of the Privacy Act. ⁴ Dissatisfied with the redacted documents, Londrigan appealed the agency's decision to withhold the deleted portions to the Deputy Attorney General. His appeal proved unsuccessful, and in July, 1978, he brought suit in the District Court.

Shortly after answering Londrigan's complaint, the FBI submitted a motion for summary judgment supported only by an affidavit prepared by Special Agent Charles J. Wroblewski, then a supervisor of the FBI's Freedom of Information-Privacy Act Branch. ⁵ Wroblewski averred that the statements therein were "based upon (his) knowledge, upon information available to (him) in (his) official capacity, and upon decisions reached in accordance therewith." ⁶ The crux of Wroblewski's affidavit was his view that

(p)ersons interviewed often assume, quite logically, that the information they furnish is only for the official use of the FBI in the fulfillment of its responsibilities, and that, the identities and the fact of their cooperation with the FBI will not be publicly exposed. Without that implied confidentiality, the fear of such exposure would inhibit the cooperation of otherwise conscientious citizens. ⁷

Wroblewski did not participate in the Londrigan investigation himself, and apparently made no effort to contact any of the agents who had conducted the recorded interviews. ⁸ What he tells us is that

(i)n conducting the background investigation regarding (Londrigan's) application for the position of Peace Corps Volunteer, the following groupings of individuals were considered to be implied confidential sources: school personnel, personal references, neighborhood and social acquaintances business associates, and former employees. ⁹

In short, as the FBI admits, the Wroblewski affidavit reduces to the proposition that "any (background) investigation conducted prior to the effective date of the Privacy Act must be regarded as having been conducted under an implied promise of confidentiality." ¹⁰

In response to the FBI's summary-judgment motion, Londrigan moved to strike the Wroblewski affidavit pursuant to Rule 56(e) of the Federal Rules of Civil Procedure ¹¹ on grounds that it was not based upon personal knowledge. He also filed a motion pursuant to Rule 56(f) ¹² requesting a continuance in order to take the depositions of the agents who had actually prepared the contested documents. ¹³ The District Court denied the motion to strike and refused to allow Londrigan to depose the agents who had participated in the investigation. ¹⁴ The court did permit Londrigan to submit written interrogatories to the FBI. ¹⁵

Londrigan's interrogatories attempted to unearth the basis of the statements contained in the Wroblewski affidavit. In responding on behalf of the FBI, Wroblewski made several statements of particular relevance to the matter before us. For example, in addressing "what percentage of persons interviewed ... assume (that their identities will be kept confidential)," ¹⁶ Wroblewski replied that "(i)n 1961, when this investigation was conducted, 100% of the persons interviewed assumed that their identities and the fact of their cooperation with the FBI would not be publicly exposed." ¹⁷ As the bases for these conclusions Wroblewski designated his review of documents pertaining to the investigation, prior experience, and FBI policy, ¹⁸ and attempted to buttress his assertions by noting that "(a)t the time these interviews were conducted in 1961, no such law as the Privacy Act was envisioned. There was no expectation that the identity of anyone who furnished information to the FBI would be divulged." ¹⁹ Finally, and somewhat inconsistently given his claims that interviewees automatically assumed that their comments would be kept secret, Wroblewski noted that one of the Londrigan sources had "expressly requested confidentiality" since a notation to this effect was contained in the file. ²⁰

Despite these revelations of the tenuous nature of the affidavit's predicates, the District Court granted the Government's motion for summary judgment. ²¹ In so doing, the court stated that its decision was based on the entire record before it, but emphasized that

an examination of the documents at issue, particularly noting the types of individuals interviewed, such as school personnel, personal references, neighborhood and social acquaintances, and business associates and the substance of the questions asked such as inquiries about Plaintiff's character, reputation, loyalty, associates, and abilities, and further noting that the interviews were conducted by agents of the Federal Bureau of Investigation in 1961, reveal(ed) sufficient circumstances indicating the existence of implied promises of confidentiality.... ²²

Londrigan appeals this decision, as well as the District Court's disposition of his Rule 56 motions.

II. Exemption (k)(5) of the Privacy Act

The Privacy Act came into being in conjunction with 1974 legislation amending the Freedom of Information Act (FOIA). ²³ It had its genesis in a growing awareness that governmental agencies were accumulating an ever-expanding stockpile of information about private individuals that was readily susceptible to both misuse and the perpetuation of inaccuracies that the citizen would never know of, let alone have an opportunity to rebut or correct. In response to fear that "the secret gathering of information on people or the creation of secret information systems or data banks on Americans by employees of the departments and agencies of the executive branch" ²⁴ could soon make Orwell's vision of 1984 ²⁵ a reality, Congress designed the Privacy Act "to prevent the kind of illegal, unwise, overbroad investigation and record surveillance of law-abiding citizens produced in recent years from actions of over-zealous investigators, and the curiosity of some government administrators, or the wrongful disclosure and use, in some cases, of personal files held by Federal agencies." ²⁶

In providing for divulgence of the contents of agency records to individuals to whom they pertain, the structure of the Privacy Act is similar to that of the Freedom of Information Act. ²⁷ One of the Privacy Act's fundamental premises is that all records compiled on an individual must on request be revealed to that individual unless they fall within one or more specifically enumerated exemptions. ²⁸ This litigation implicates Exemption (k)(5), which protects from disclosure.

investigatory material compiled solely for the purpose of determining suitability, eligibility, or qualifications for Federal civilian employment, military service, Federal contracts, or access to classified information, but only to the extent that the disclosure of such material would reveal the identity of a source who furnished information to the Government under an express promise that the identity of the source would be held in confidence, or, prior to the effective date of this section, under an implied promise that the identity of the source would be held in confidence. ²⁹

The statutory language most critical to the case at bar refers to an "implied promise that the identity of...