Powell v. United States Dept. of Justice

• Decision Date: 15 May 1984
• Docket Number: No. C-82-0326-MHP.,C-82-0326-MHP.
• Citation: 584 F. Supp. 1508
• Court: U.S. District Court — Northern District of California
• Parties: John W. POWELL, Plaintiff, v. UNITED STATES of America, DEPARTMENT OF JUSTICE, Defendants.

584 F. Supp. 1508

John W. POWELL, Plaintiff, v. UNITED STATES of America, DEPARTMENT OF JUSTICE, Defendants.

No. C-82-0326-MHP.

United States District Court, N.D. California.

May 15, 1984.

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Thomas Steel, San Francisco, Cal., for plaintiff.

Barbara Parker, Asst. U.S. Atty., San Francisco, Cal., for defendants.

OPINION RE IN CAMERA REVIEW

PATEL, District Judge.

Plaintiff John Powell, his wife Sylvia Powell and Julian Schuman were journalists residing in China both before and after the 1949 Chinese Revolution. During the Korean War they were editors of the China Monthly Review, an English language journal published in China, which contained articles critical of the United States' conduct in the war. When the Powells and Schuman returned to the United States in 1953, they became victims of McCarthyism and the anti-communist zealotry then prevalent in Washington. They were subpoenaed to testify before various congressional committees, and high officials in the government called for their prosecution. In 1956 the government indicted the Powells and Schuman on charges of sedition based solely on the content of the articles they published in the China Monthly Review. Trial finally commenced in 1959 and ended in a mistrial a few days after the government had begun its case in chief. Immediately thereafter the government filed a superseding indictment charging the Powells and Schuman with treason, a capital offense, and sedition. Two years later, in 1961, the government dismissed this indictment.

On November 28, 1978, plaintiff filed a Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, request with the Department of Justice ("Department") for all documents pertaining to the Powell-Schuman indictment during the years 1956 to 1961. He subsequently brought suit in this court to enforce his rights under the Act. Pursuant to court order, he has now obtained the release of over two thousand pages of documents. However, the Department has withheld a large number of documents and has deleted substantial portions of those released, claiming that these records are exempt from disclosure pursuant to Exemptions 1, 5, 6, and 7 of the Act. 5 U.S.C. § 552(b)(1), (5), (6), (7).

At issue now is the validity of the Department's exemption claims. Plaintiff has moved for partial summary judgment and for in camera review of the documents, and the Department has cross-moved for summary judgment. The court, having carefully considered the arguments of counsel and the papers submitted as well as the Vaughn indices and documents produced, grants plaintiff's motion for in camera inspection and denies the summary judgment motions.

Following oral argument on the motions the court ordered that the government submit the disputed documents for in camera review, and the government has produced them. As discussed below in more detail, the court will permit the government to submit supplementary supporting affidavits before the court engages in its in camera review. To guide the government the court has set forth not only its reasons for granting the request for in camera review, but also its views on the various exemptions at issue in this case.

I. In Camera Review

The FOIA mandates a policy of broad disclosure of government documents. An agency may withhold a document only if the information contained in the document comes under one of the nine exemptions listed in § 552(b), which exemptions are to be construed narrowly. FBI v. Abramson, 456 U.S. 615, 630-31, 102 S.Ct. 2054, 2063-64, 72 L.Ed.2d 376 (1982); Department of the Air Force v. Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 1599, 48 L.Ed.2d 11 (1976); Church of Scientology of California v. U.S. Department of the Army, 611 F.2d 738, 742 (9th Cir.1980). Furthermore, § 552(b) specifically provides that "any reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt...." See Church of Scientology, 611 F.2d at 743-44.

The district court must review the exemptions claimed de novo, and the burden is on the government to establish that the exemptions are justified. Van Bourg, Allen, Weinberg & Roger v. NLRB, 728 F.2d 1270 at 1272 (9th Cir.1984); Church of Scientology, 611 F.2d at 742; 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). In order to satisfy this burden, the government may not rely on "conclusory and generalized allegations of exemptions," Church of Scientology, 611 F.2d at 742 (quoting Vaughn, 484 F.2d at 826), which preclude adversarial testing of the exemption claim and place the burden of wading through the documents on the court. Rather, it must present sufficient evidence to enable the court to make an independent assessment of the exemption claims. At a minimum, where a substantial number of documents are at issue, this will require affidavits or declarations which index each deletion and state the exemptions claimed along with a detailed description of the material withheld and justification for its withholding. Vaughn v. Rosen, 484 F.2d at 826-28.

In Church of Scientology the Ninth Circuit adopted the Vaughn analysis and went on to state that in camera review under § 552(a)(4)(B) is sometimes required to determine whether a document is exempt:

If, however, the court finds the affidavits or testimony submitted too generalized to establish eligibility for an exemption, it may, in its discretion, proceed to examine the disputed documents in camera for a first-hand determination of their exempt status. 5 U.S.C. § 552(a)(4)(B).... Though the burden remains at all times on the government to establish exempt status, in camera inspection may supplement an otherwise sketchy set of affidavits. By first-hand inspection, the court may determine whether the weakness of the affidavits is a result of poor draftsmanship or a flimsy exemption claim.

611 F.2d at 742-43 (footnotes and citations omitted). See also Pollard v. FBI, 705 F.2d 1151, 1153-54 (9th Cir.1983) (in camera review appropriate where government testimony and affidavits have failed to provide sufficient basis for court's determination on exemption claim).

However, in camera review is not to be used as a substitute for an inadequate Vaughn index. The government has the burden of proving it is entitled to withhold a document. It must do so by presenting an adequate Vaughn index from which eligibility for exemptions can be determined. Only where the government has made a bona fide attempt to provide a sufficient index and the claim for exemption cannot be evaluated merely from the index should the court embark upon the burdensome task of in camera review.

The Sixth Circuit recently reviewed the standards among the circuits for in camera review in Ingle v. Department of Justice, 698 F.2d 259, 264-67 (6th Cir.1983), and set forth four factors which should guide district courts in determining whether to engage in discretionary review: (1) the burden which in camera review will impose upon themselves and the appellate courts; (2) evidence of agency bad faith; (3) the strength of the public interest involved in the particular case; and (4) the request of the parties for court review of the documents. Ingle, 698 F.2d at 267.

Considering these factors, in camera review is appropriate as to some documents. With respect to others, the government's Vaughn index is inadequate and its inadequacy is not justified. Additional declarations or affidavits are required as set forth in Section II.

The court notes first that plaintiff has specifically requested in camera review. Furthermore, there is substantial public interest in the information at issue in the materials sought, as discussed further in Section II(C)(2)(c) below.

The fact that the Department's conduct has manifested a bad faith disregard for plaintiff's rights under the FOIA and for its obligation under the law¹ weighs heavily in the court's decision in the instant case.² The Department's response to plaintiff's FOIA request has been characterized by both substantial delay and gross inadequacy.

Plaintiff filed his first FOIA request with the Department on November 28, 1978 and on February 11, 1980, the Department informed plaintiff that he was number 109 on a first-come-first-serve list of major document request projects. Over a year later, on March 18, 1981, the Department wrote that there were still 105 requests preceding his. Projecting into the future this rate of three requests per year, plaintiff could have reasonably assumed that the Department would not comply with his request until the year 2016. In January 1982, having still received no documents, plaintiff filed the present lawsuit seeking to enjoin the Department to turn over all non-exempt documents responsive to his FOIA request.

On April 19, 1982, this court issued an order designed to prevent any further delays. Specifically, it ordered the government (within twenty working days) to release to plaintiff all documents responsive to his request and to prepare a detailed Vaughn index for all exemptions claimed. Yet the Department and its subdivisions, the Department of Justice Office of Legal Policy ("OLP"), the Executive Office of the United States Attorneys ("EOUSA"), and the Federal Bureau of Investigation ("FBI"), failed to comply with the court's deadline or with a stipulated thirty-day extended deadline. Not until mid-December 1982, after a motion for contempt had been filed, did the Department finally produce the bulk of the documents which it believes are responsive to plaintiff's request and are non-exempt, and various Vaughn indices.

Even after this extended delay, the affidavits submitted by the Department are entirely inadequate and fail to comply with this court's order or with Vaughn. In fact, the FBI has presented no index at all. Instead, it has placed code symbols next to each...