Patriarca v. FBI
| Decision Date | 16 July 1986 |
| Docket Number | Civ. A. No. 85-0707B. |
| Citation | 639 F. Supp. 1193 |
| Parties | Raymond J. PATRIARCA v. FEDERAL BUREAU OF INVESTIGATION and William Webster, Director and United States Department of Justice and Edwin Meese, Attorney General and the Providence Journal Company. |
| Court | U.S. District Court — District of Rhode Island |
John F. Cicilline, Providence, R.I., for plaintiff.
Joseph Cavanagh, Edward Hindle, Knight Edwards, Matthew Medeiros, Edwards & Angell, Providence, R.I., for defendant Journal.
Mona S. Butler, Vincent M. Garvey, Dept. of Justice, Washington, D.C., Everett Sammartino, Asst. U.S. Atty., Providence, R.I., for defendant FBI.
The Government Defendants (Department of Justice, Edwin Meese, Attorney General, Federal Bureau of Investigation, William Webster, Director) have moved to dismiss this action for lack of subject matter jurisdiction and for failure to state a claim upon which relief may be granted. The original complaint was filed November 8, 1985. The Government Defendants and the Defendant Providence Journal Company (Journal) each filed a motion to dismiss. Plaintiff's motion to amend his complaint was granted. Thereafter the Journal filed an answer and the Government Defendants filed a motion to dismiss. It is the Government's motion to dismiss which is addressed in this opinion.
This controversy has a history. Between the years 1962 and 1965, the FBI maintained an electronic device called a "bug" which recorded conversations within the premises located at 168 Atwells Avenue, in the City of Providence. The property was occupied by Raymond L.S. Patriarca, who police officials claimed was the head of Organized Crime in south-eastern New England. The bug was placed without benefit of a warrant of any kind. It was placed in violation of the Fourth Amendment prohibition of unlawful searches and seizures. The information that was obtained through the use of the bug was obtained by the Government in violation of the Fourth Amendment to the United States Constitution.
The Defendant Providence Journal Company is the publisher of newspapers of wide circulation in the State of Rhode Island. It sought disclosure of the tapes from the Department of Justice. The initial request, made November 1, 1976, was refused on the basis that the disclosure of investigatory files compiled for law enforcement purposes would be "an unwarranted invasion of privacy" under the Freedom of Information Act, 5 U.S.C. § 552(b)(7)(C). The Journal brought suit in this district to compel disclosure of logs and memoranda made by agents from the tapes which had by that time been erased. Providence Journal Co. v. F.B.I., 460 F.Supp. 762 (D.R.I.1978), rev'd, 602 F.2d 1010 (1st Cir.1979), cert. denied, 444 U.S. 1071, 100 S.Ct. 1015, 62 L.Ed.2d 752 (1980).
Raymond L.S. Patriarca (Plaintiff's father) was allowed to intervene because of the personal nature of his privacy interest which he sought to protect. Providence Journal, 460 F.Supp. at 766. The court stated that "... Mr. Patriarca has a colorable claim arising directly under the Fourth Amendment for injunctive relief to protect his right to be free of unreasonable searches and seizures and governmental impropriety with regard to those seizures." 460 F.Supp. at 767. In a decision several months later, the court barred disclosure of information relating to family relationship, family matters and their private lives. 460 F.Supp. at 789. Raymond L.S. Patriarca died in July of 1984. His son, Raymond J. Patriarca, is the Plaintiff in the present action and asserts similar Fourth Amendment claims.
The seeds of the present controversy were sown on September 26, 1984 when the Journal again requested from the FBI copies or access to transcripts, summaries or tapes of the 1962-1965 illegal electronic surveillance of Raymond L.S. Patriarca's business office. In its request, the Journal notified the FBI that Raymond L.S. Patriarca had died in July of 1984, but it made no reference whatsoever to the earlier litigation involving the FBI in which the Journal had been denied the information. In early 1985, the FBI notified the Journal that its request under the Freedom of Information Act had been accepted. The materials became available to the Journal in June, 1985.1 Some of the information concerning Raymond J. Patriarca was published by the Journal.
In connection with their motion, the Federal Defendants have filed a document called a "Declaration." The Declaration is an affidavit by FBI Special Agent, Frank C. Underwood, III, who is Unit Chief in Disclosure Unit I, of the Freedom of Information—Privacy Acts Section of the Records Management Division at FBI Headquarters in Washington, D.C. In this affidavit, Special Agent Underwood specifically states that in accord with the Court's issuance of a preliminary injunction and the First Circuit's earlier decision, Providence Journal v. F.B.I., 602 F.2d 1010 (1979), since November 14, 1985 no further information regarding the illegal surveillance relative to, by or about Raymond J. Patriarca has been disclosed by Disclosure Unit I. Importantly, Special Agent Underwood states that the Records Management Division has determined that exemption 7(C) of the Freedom of Information Act (FOIA), 5 U.S.C. § 552(b)(7)(C), exempts from disclosure requests for surveillance information that are statements to, by or about Raymond J. Patriarca, not heretofore released.
In essence, the FBI has admitted that because of Exemption 7(C), the released information which sparked this controversy should not have been released. Defendant Journal obtained information to which it was not entitled because of, at the least, a mistake by the FBI. Clearly the Defendant Journal was on notice that the disclosure was a change of position and possibly an error by the FBI. The Journal was the Plaintiff in the earlier litigation and must be charged with notice of the First Circuit's opinion. This earlier decision dealt with, among other matters, Raymond L.S. Patriarca's private life and the private lives of family members, including Plaintiff Raymond J. Patriarca, regarding such matters as health, personal and religious beliefs and the like. The language of the Court of Appeals was clear and unambiguous in its denial of disclosure. The Court of Appeals had ruled that the information was exempted from disclosure under Exemption 7C, "solely on the ground that the manner in which the information was obtained forbids release ..." Providence Journal v. F.B.I., supra, at 1014. (emphasis added).
In his Amended Complaint, Plaintiff seeks declarative, injunctive and damages relief under the Fourth Amendment to the United States Constitution and under three federal statutes. Plaintiff seeks relief under the Freedom of Information Act, 5 U.S.C. § 552, which allows public access to certain government documents and information. Under this disclosure statute, there are specific exemptions including the privacy exemption which allow the government to withhold certain types of information. In addition, relief is sought under the Privacy Act. The Privacy Act, 5 U.S.C. § 552a, limits the information which a government agency may disclose from its records regarding an individual. The Privacy Act requires that strict records be maintained and has specific procedural requirements regarding the obtaining and release of any Government information. Plaintiff also seeks relief under Title III of the Omnibus Crime Control and Safe Streets Act of 1968. 18 U.S.C. §§ 2510-2520. The Congress passed Title III in order to strictly limit and control the use of electronic surveillance to protect the privacy interest of citizens and to provide a process for legitimate electronic surveillance.
The Government Defendants have moved to dismiss the action for lack of subject matter jurisdiction pursuant to Fed.R. Civ.P. 12(b)(1). Plaintiff has asserted federal question jurisdiction under 28 U.S.C. § 1331 for Counts 2, 3, and 4 of his Amended Complaint. Plaintiff also claims jurisdiction under the Privacy Act and specifically under 5 U.S.C. § 552a(g)(1) which states that:
This section of the statute authorizes a damage suit, but does not specifically confer federal jurisdiction. Federal question jurisdiction is however supported under 28 U.S.C. § 1331 which has been alleged in the Amended Complaint. Finally, Plaintiff claims damages under the doctrine of Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), for violation of his Fourth Amendment rights, a claim for which jurisdictional basis is found in 28 U.S.C. § 1331(a).
When reviewing a jurisdictional question based on a federal question, the non-moving party must show that he has alleged a claim under federal law and that the claim is not frivolous. Baker v. Carr, 369 U.S. 186,...
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