Providence Journal Co. v. FBI

• Decision Date: 15 May 1978
• Docket Number: Civ. A. No. 77-0526.
• Citation: 460 F. Supp. 762
• Parties: PROVIDENCE JOURNAL CO., Plaintiff, v. FEDERAL BUREAU OF INVESTIGATION et al., Defendants, and Raymond L. S. Patriarca, Intervenor.
• Court: U.S. District Court — District of Rhode Island

460 F. Supp. 762

PROVIDENCE JOURNAL CO., Plaintiff, v. FEDERAL BUREAU OF INVESTIGATION et al., Defendants and Raymond L. S. Patriarca, Intervenor.

Civ. A. No. 77-0526.

United States District Court, D. Rhode Island.

May 15, 1978.

COPYRIGHT MATERIAL OMITTED

Matthew F. Medeiros, of Edwards & Angell, Providence, R. I., for plaintiff.

Vincent M. Garvey, Civ. Div., U. S. Dept. of Justice, Washington, D. C., Everett C. Sammartino, Asst. U. S. Atty., R. I., Providence, R. I., Harris L. Berson, Providence, R. I., Harvey Brower, Lawrence, Mass., for defendants.

OPINION

PETTINE, Chief Judge.

This case counterposes rights of privacy, under the Freedom of Information Act¹ and guaranteed by the Constitution, against the right of a newspaper, which asserts the public's interest, to compel disclosure of governmental files concerning a public figure. At issue are FBI logs derived from an illegal electronic surveillance.

Between March 1962 and July 1965, the FBI tape recorded conversations via an electronic listening device or "bug" implanted without a warrant at the National Cigarette Service, 168 Atwells Ave., Providence, Rhode Island, the place of business of Raymond L. S. Patriarca. Agents then compiled logs and memoranda from those tapes before erasing them. A history of this surveillance may be found in United States v. Taglianetti, 274 F.Supp. 220 (D.R.I. 1967), aff'd 398 F.2d 558 (1st Cir.), aff'd per curiam 394 U.S. 316, 89 S.Ct. 1099, 22 L.Ed.2d 303 (1969), a case involving the prosecution of one of Mr. Patriarca's business associates for tax evasion. At that time the Providence Journal, the leading newspaper in Rhode Island, published the transcripts of the surveillance which had been disclosed in court.

The Providence Journal now seeks complete disclosure of all logs and memoranda derived from the three years of surveillance in the belief that the logs contain information about organized crime in New England and its relationship with various Rhode Island public officials and business and financial leaders.

The Providence Journal submitted a request to the FBI for these documents pursuant to the Freedom of Information Act (FOIA) on November 1, 1976. It indicated that it intended to publish the documents and to use them as the basis for investigative reporting; and it deemed that disclosure was in the public interest and might promote more effective and vigorous law-enforcement.

Clarence Kelley, Director of the FBI, formally refused, on June 10, 1977, to disclose the material based on the investigatory file exemption² of FOIA. Disclosure, he asserted, would wrongly interfere with enforcement proceedings, constitute an unwarranted invasion of privacy and divulge a confidential source, 5 U.S.C. §§ 552(b)(7)(A), (C), (D). The newspaper appealed to the Attorney General. When no answer was forthcoming within the statutory period, the Providence Journal filed this suit to compel disclosure, pursuant to 5 U.S.C. § 552(a)(4)(B). Subsequently, the Deputy Attorney General affirmed Director Kelley's refusal to disclose, but only on the basis that disclosure of these "investigatory files compiled for law-enforcement purposes" would "constitute an unwarranted invasion of privacy". Therefore, only that one claim of exemption, 5 U.S.C. § 552(b)(7)(C), is presented to this Court by the Department of Justice.

To protect his privacy interests in the logs and memoranda, Raymond Patriarca moved to intervene in this litigation. In response to Mr. Patriarca's motion of October 7, 1977, for a temporary restraining order to halt any voluntary disclosure by the Department of Justice, this Court ordered the defendant to give notice prior to any proposed release of documents.

On September 7, 1977 at a pre-trial conference called by the Court and attended by counsel, the Court raised sua sponte a number of preliminary legal issues which it felt had to be briefed in order to resolve the complex legal questions presented by this litigation. These issues, as set forth in the Court's Order of September 13, 1977, are as follows:

1. Whether the Freedom of Information Act (5 U.S.C. § 552) and the Privacy Act (5 U.S.C. § 552a), when read in light of the Fourth Amendment, require an agency to disclose information which was obtained in violation of that Amendment.

2. Whether Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (18 U.S.C. §§ 2510 et seq.) or prior federal legislation would prevent disclosure of transcripts of conversations obtained through illegal means.

3. Whether the foregoing statute or prior such statutes are included within exemption (b)(3) of the Freedom of Information Act and thus specifically exempt from required disclosure.

4. Whether the public's right to know and the right of the press to publish information of public interest prevails over claims that the information was obtained in violation of the proposed intervenor's rights.

5. Whether Mr. Raymond L.S. Patriarca has a right to intervene in this action and, if so, whether he has standing to raise the above issues.

It is these issues the Court will now resolve.

MOTION TO INTERVENE

Preliminary Question No. 5, supra

Raymond Patriarca seeks to intervene in this suit under Fed.R.Civ.P. 24(a). To do so he must claim an interest relating to the property or transaction which is the subject of the action and be so situated that the disposition of the action may, as a practical matter, impair or impede his ability to protect that interest, unless his interest is adequately represented by existing parties.

Mr. Patriarca undoubtedly presents a colorable claim of interest in preserving the privacy of the logs and memoranda which are the subject of this action. Their disclosure would as a practical matter impede, in fact, destroy his ability to protect that interest. This much the plaintiff Providence Journal concedes, as it must. It also admits that the right of intervention in FOIA actions is clearly established.³

The plaintiff contends, however, that the United States adequately represents Mr. Patriarca's interest in his privacy. Rule 24(a) would not then permit intervention. Plaintiff points to the penalties which may be imposed under FOIA "for arbitrary and capricious withholding of documents,"⁴ and assures Mr. Patriarca that these penalties will cause the Department to put on a vigorous defense of its decision to withhold.

However, all that Mr. Patriarca must show under Rule 24(a) is that his interest may not be adequately represented; no showing of actual inadequacy is required.⁵ Mr. Patriarca's reluctance to rely on the Department of Justice to protect his privacy is understandable. Having been the subject of continuous electronic surveillance by the FBI for three years and the object of a successful U.S. prosecution for, among other charges, the use of the telephone in interstate commerce with the intent to commit murder and to further an unlawful gambling enterprise, Patriarca v. United States, 402 F.2d 314 (1st Cir. 1968), cert. denied, 393 U.S. 1022, 89 S.Ct. 633, 21 L.Ed.2d 567 (1969), Mr. Patriarca need not now rely on any supposed identity of interest between himself and the Government in keeping the fruits of its electronic surveillance confidential.

The plaintiff claims that Patriarca's assertion of the FOIA exemption⁶ for personnel and medical files is not sufficiently different from the Government's assertion of exemption 7 for investigatory files to establish his claim of inadequacy of representation. But no such difference in asserted defenses and claims need be shown by the intervenor. Mr. Patriarca has a particular, unique interest with regard to the logs and memoranda which differs from the more general interest which the Government has in protecting privacy and fulfilling its obligations under FOIA. The personal nature of the privacy interest makes intervention especially appropriate; denial of intervention with the resulting dependence on the Government is especially onerous. No one can better assert an interest in personal privacy than the person whose privacy is at stake.

Courts have not compelled private persons seeking intervention in other cases to depend on the Government's representation of the public interest, when the intervenor asserts some specialized interest justifying intervention.⁷ If private parties need not rely on the Government's vigorous assertion of the public interest but are granted their day in court, then surely Mr. Patriarca may have his say when the Government is asserting only his personal interest in privacy. The reasons, such as having a unified and coherent expression of the public interest, which might lead a court to rely exclusively on the Government's advocacy of the public interest are absent in such a case as this.

However, plaintiff argues that even if Mr. Patriarca has standing under Fed.R. Civ.P. 24(a), he lacks standing to intervene because this Court cannot grant him relief. Plaintiff argues that the grant of relief would turn this into a "reverse FOIA" action which it considers to "be inconsistent with the basic purpose of the FOIA, which was not to afford confidentiality, but to overcome restrictive agency interpretations of the original public information section . . .." Chrysler Corp. v. Schlesinger, 565 F.2d 1172, 1185 (3d Cir. 1977), cert. granted, 435 U.S. 914, 98 S.Ct. 1466, 55 L.Ed.2d 504 (1978).

Regardless of whether a reverse-FOIA action lies, 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 improprieties with regard to those seizures. He may assert that claim as intervenor in this suit.

With regard to the reverse-FOIA suit, the First Circuit has recognized that review of an agency determination to disclose may be had pursuant to the Administrative Procedures Act, 5 U.S.C. §§ 702-06 (1976), in light of standards derived from...