Meeropol v. Meese
| Citation | 790 F.2d 942,252 U.S.App.D.C. 381 |
| Decision Date | 28 May 1986 |
| Docket Number | No. 84-5283,84-5283 |
| Parties | Michael MEEROPOL, a/k/a Rosenberg, et al., Appellants v. Edwin MEESE III, Attorney General of the United States, et al. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeal from the United States District Court for the District of Columbia (Civil Action No. 75-1121).
Marshall Perlin, New York City, for appellants.
Freddi Lipstein, Atty., Dept. of Justice, with whom Joseph E. diGenova, U.S. Atty., Richard K. Willard, Acting Asst. Atty. Gen. and Leonard Schaitman, Atty., Dept. of Justice, Washington, D.C., were on brief, for appellees.
Before BORK and SCALIA, Circuit Judges, and MacKINNON, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge BORK.
On February 20, 1975, Michael and Robert Meeropol made a formal request under the Freedom of Information Act ("FOIA"), 5 U.S.C. Sec. 552 (1982), to the Criminal Division of the Department of Justice ("DOJ"), the Offices of the Attorney General and Deputy Attorney General, the Federal Bureau of Investigation ("FBI"), the Central Intelligence Agency ("CIA"), the Energy Research and Development Administration ("ERDA"), and the Offices of the United States Attorneys in the District of New Mexico and in the Southern District of New York. The request to these agencies sought "all of the records relating directly or indirectly to investigation and prosecution of our parents," Letter from Michael and Robert Meeropol to the Office of the Deputy Attorney General (Feb. 20, 1975), Joint Appendix ("J.A.") at 60-62. The Meeropols' parents, Julius and Ethel Rosenberg, had been convicted in 1951 of conspiring to transmit information to the Soviet Union relating to the development of the atomic bomb, and were executed in 1953.
The FOIA request expressly included, but was not limited to, all records relating to any of eleven named persons 1 and the 100 persons on the prosecution's witness list at the Rosenberg trial. The scope of the request was therefore enormous. It was perhaps the most extensive FOIA request ever made. In an interoffice government memorandum, George Calhoun, the Deputy Chief of the Internal Security Section of DOJ, described it as "one of the most definitive requests I have ever seen." Calhoun noted, "I have no doubt in my mind what they want--they want everything having to do with the Rosenberg case." Calhoun Memorandum, J.A. at 304 (emphasis in original).
On July 14, 1975, plaintiffs filed in federal district court the complaint that initiated these proceedings, charging that the government was willfully failing to produce records to which they were legally entitled. In the ensuing ten years the defendant agencies, under court order, retrieved approximately 500,000 pages of records and released approximately 200,000 of those pages to the defendants. Judge June Green, who presided over the proceedings since their inception, eventually granted the motions for summary judgment filed by each of the defendants over the course of the last seven years. The plaintiffs' claims have now all been dismissed, save those for attorneys' fees and litigation costs. Plaintiffs appeal from the three orders granting summary judgments as well as from an additional order issued in 1984 denying a motion by plaintiffs to require the defendants to turn over certain specific records.
In order to provide an outline of the course this extraordinarily complex litigation has taken, we will initially set out only the main features of its history. Additional details will be introduced at later points in the opinion, as they become relevant to the legal analysis. For ease of comprehension, we divide the litigation into three chronological phases.
The original complaint, filed in July of 1975, charged that the defendants were deliberately withholding records that were relevant under the terms of the request and subject to disclosure. The complaint asked that the defendants be ordered to produce an inventory of the documents in their possession encompassed by the request, with a view to the ultimate release of the documents not specifically exempt from disclosure under FOIA. The complaint also sought an interim order enjoining the defendants from destroying or in any way altering the documents requested. Complaint, J.A. at 3-48. On August 1, 1975, Judge Green issued an order enjoining the defendants from destroying or in any way altering the relevant documents, J.A. at 59, and on August 27, 1975, she issued a second order requiring each of the defendants, over the course of the next three months, to file inventories of all relevant documents in their possession along with itemized, detailed and cross-referenced refusal justifications for each relevant document claimed to be exempt from disclosure. J.A. at 63-67. 2
Affidavits were filed in response to the August 27 order. Defendants then moved for partial summary judgment, asking the court to rule that their inventories were complete and that they were in compliance with the August 27 order. ERDA moved as well for a partial summary judgment that the ERDA documents the agency claimed to be exempt from disclosure had been properly withheld. Plaintiffs opposed these motions. Asserting that the inventories were incomplete and inadequate, they asked that the FBI be held in contempt. They also requested permission to conduct depositions of the FBI agents who had supervised the search as a means of examining the thoroughness of the inventories and the validity of the justifications for withholdings. The court responded to the accumulated motions in an order issued on January 20, 1976. Opinion and Order of Jan. 20, 1976, J.A. at 69-74. The court denied the motions for summary judgment, finding that "legitimate questions" had been raised about the completeness of the inventories, and that "given the complexity of this case," the affidavits alone did not establish that every deletion was proper. Therefore, material issues of fact remained. Id. at 2, J.A. at 70. "For similar reasons"--i.e., the breadth and complexity of the search requested--the court denied the motion to hold the FBI in contempt. "This case involves an extensive request, and it appears that the defendants have made reasonable efforts to comply with the Court's orders." Id. at 3, J.A. at 71.
Plaintiffs had specifically complained in an affidavit accompanying their contempt motion that the FBI had searched only its headquarters, and not any field offices, and asked that the field offices be ordered searched as well. Affidavit of Marshall Perlin (Dec. 22, 1975) at 30-31, J.A. at 293-94. The court ruled that an inventory of all fifty-nine field offices would be "counterproductive," but ordered a search and inventory of the Albuquerque field office, since that office had conducted the investigation of one of the key principals, David Greenglass. Opinion of Jan 20, 1976, at 4, J.A. at 72. Finally, the court held the request for depositions in abeyance and ordered that withheld documents be submitted for in camera inspection, so that the court could determine whether the statutory exemptions had been properly invoked. It was apparently the court's intention at the time to conduct an agency by agency in camera examination of withheld documents. It thus began by requiring ERDA to submit all withholdings claimed under 5 U.S.C. Secs. 552(b)(6), 552(b)(7)(C) and 552(b)(7)(D) (1982), and indicated that an FBI submission would be requested next. Id. at 3, J.A. at 71. This method of examining documents withheld was discarded in later phases of the litigation and a sampling method employed instead.
In July of 1976, the court issued an order permitting the plaintiffs to depose six named FBI agents and one named DOJ official. Order of July 23, 1976, J.A. at 76. Two of those agents, Thomas Bresson and John Powers, were in fact deposed. Attorneys for the plaintiffs and the FBI then entered into settlement negotiations, which ended in December of 1977 without satisfactory resolution of the outstanding issues.
The FBI was the exclusive focus of this phase of the litigation. After the settlement negotiations broke down, Judge Green issued a new order, defining the scope of the search. Order of Jan. 12, 1978 ("1978 Order"), J.A. at 92-94. The purpose of this order was to set out exactly which files the FBI would be required to search in order to "end any debate over the scope of this action." Id. at 93. The FBI was ordered to search:
(a) The main subject files in its New York field office for 97 named persons and organizations;
(b) the "see references" in its New York field office for the eleven persons named in the original FOIA request; 3
(c) the main subject files in its headquarters for 83 named individuals, all of whom were also among the 97 listed in (a); and
(d) the main subject files in the office of origin for each of the 83 named individuals listed in (c) whose office of origin was not New York. 4
As amended one month later, the 1978 Order required the FBI to search, process documents at the rate of 40,000 pages per month and to release all "non-exempt, non-duplicative records." The district court held in abeyance the demand for detailed justifications for records claimed to be exempt. J.A. at 93, 99.
The 1978 Order is central to our review of this case. In defining the scope of the search required of the FBI, the district court established the standard by which the adequacy of the FBI's compliance would later be measured.
On November 19, 1979, the district court granted the FBI's motion for partial summary judgment, having concluded "that the FBI has complied substantially with the searching, processing and retrieval of documents ordered on January 12, 1978." Order of Nov. 19, 1979 ("1979 Order"), J.A. at 102. The 1979 Order is one of the four orders from which plaintiffs appea...
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