Samahon v. Fed. Bureau of Investigation

• Decision Date: 25 August 2014
• Docket Number: Civil Action No. 12–4839.
• Parties: Tuan SAMAHON, Plaintiff, v. FEDERAL BUREAU OF INVESTIGATION, et al., Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

40 F.Supp.3d 498

Tuan SAMAHON, Plaintiff,

v.FEDERAL BUREAU OF INVESTIGATION, et al., Defendants.

Civil Action No. 12–4839.

United States District Court, E.D. Pennsylvania.

Signed Aug. 25, 2014

Motions granted in part and denied in part. Mary Beth Lyon, Mary Emily Pagano, Matthew Nicodemo, Villanova Law School, Villanova, PA, for Plaintiff.

Richard M. Bernstein, U.S. Attorney's Office, Philadelphia, PA, for Defendants.

MEMORANDUM

EDUARDO C. ROBRENO, District Judge.

This is a case about abuse of governmental power by senior officials in the federal government. Although technically framed as a request for disclosure of certain information in the files of the Federal Bureau of Investigation (“FBI”) pursuant to the Freedom of Information Act (“FOIA”), at bottom, the case is about the ability of the federal government to pry into the private lives of U.S. citizens with virtual impunity.

The case implicates the highest levels of the federal government, including President Lyndon B. Johnson, Associate Justice of the Supreme Court Abe Fortas, and senior FBI officials including FBI Director J. Edgar Hoover. The subject of the government's interest was George Hamilton, a film and television actor who at the time (circa 1966) was dating Lynda Bird Johnson, the President's oldest daughter.

It appears that either out of fatherly worry or fears of political embarrassment, President Johnson was concerned with the relationship. This concern led him to involve both the FBI and Associate Justice Abe Fortas in a “discreet investigation” of George Hamilton's personal life. The facts of this inquiry conducted by FBI agents are enshrined in the records of the FBI and lie at the center of this case. Ultimately, the inquiry uncovered little, if any, negative information about George Hamilton, but it reveals much about the ways and means of the government's investigation of private citizens in the 1960s.

This memorandum opinion proceeds in four parts. First, the opinion discusses the procedural and factual background of the case. Second, it delineates the general principles of the FOIA that govern the Court's analysis. Third, it examines the factual submissions provided to the Court by the FBI. Finally, it applies the law to those facts to determine whether the FBI properly withheld the requested information. For the reasons explained herein, the Court concludes that the FBI's denial of Plaintiff's requests was in violation of the broad disclosure requirements set forth in the FOIA.

I. BACKGROUND

Plaintiff Tuan Samahon (“Plaintiff”) is a professor of law at Villanova Law School who is researching the 1969 resignation of Associate Justice Abe Fortas from the United States Supreme Court. Compl. ¶ 1, ECF No. 1. Specifically, Plaintiff is focusing on the potential role that the FBI, under the direction of former FBI Director J. Edgar Hoover, had in Justice Fortas's resignation.

As part of that research, Plaintiff submitted a FOIA request to the FBI on January 4, 2010, requesting disclosure of a copy of an internal FBI memorandum referred to as the “DeLoach Memorandum.” Compl. ¶ 6. The DeLoach Memorandum is a two-page document dated October 25, 1966, that was sent by then-Deputy FBI Director Cartha DeLoach to Clyde Tolson, the Associate Director of the FBI at the time. Compl. ¶ 7 & Ex. 1, DeLoach Memo 1. In response to the FOIA request, the FBI provided a copy of the DeLoach Memorandum to Plaintiff, but redacted from the document two fifteen-character segments (hereinafter referred to as the “Redacted Memorandum”).¹ Compl. ¶ 8 & DeLoach Mem. 1. According to the FBI's representations to Plaintiff, those two redactions contain the name of a living individual. Compl. ¶¶ 10, 38.

As is apparent even with the redactions, the subject of the DeLoach Memorandum is a telephone conversation DeLoach had with Justice Fortas on the morning of October 25, 1966. The first redaction occurs in the subject line of the memo, which states: “RE: CONVERSATION WITH JUSTICE FORTAS—[REDACTED] MATTER; BLACK CASE.” DeLoach Mem. 1. The second redaction is in the first paragraph of the document, which reads as follows:

For record purposes, Justice Fortas called at 10:30 this morning to express appreciation for the information the Director had me furnish him concerning the [REDACTED] matter. Justice Fortas advised he agreed with the Director that no further action need be taken at this time. He stated he would get in touch with us in the event further inquiries should be made.

Id.

The DeLoach Memorandum then describes DeLoach's ex parte discussion with Justice Fortas regarding the matter of Black v. United States, 385 U.S. 26, 87 S.Ct. 190, 17 L.Ed.2d 26 (1966), a case that was pending before the Supreme Court at the time. DeLoach Mem. 1. The Black case involved the use of federal wiretapping and electronic surveillance investigative techniques, Compl. ¶ 13, and DeLoach indicated to Justice Fortas that the FBI was “somewhat concerned” with the case's potential outcome, DeLoach Mem. 1. According to the DeLoach Memorandum, DeLoach asked Justice Fortas “when a decision would be handed down.” Id. Justice Fortas had recused himself from the case, but he indicated to DeLoach that there would probably be a decision in a week, and he advised DeLoach that the Court's decision “would not be definitive” and that the Court thought the case “should not be handled at [the] Supreme Court level.” Id.; see also Compl. ¶ 15. DeLoach interpreted that statement to mean that the case would be remanded to the lower court. DeLoach Mem. 1. The Memorandum concludes by stating: “Pursuant to the Director's instructions, we are immediately checking to find out the identity of the judge who handled this matter in the lower court. A memorandum will be sent through on him just as soon as his identity is ascertained.” Id. Finally, the DeLoach Memorandum includes an “addendum” asserting that Justice Fortas did not act improperly or violate ethical requirements by divulging information about the Black case. ² Id. at 2. A copy of the Redacted Memorandum is attached to this memorandum as “Exhibit A.”

Based on his previous research on Justice Fortas and the Hoover FBI, Plaintiff theorizes that the DeLoach Memorandum reflects an effort by the FBI to blackmail Justice Fortas into providing improper information about the Supreme Court's handling of the Black case. Pl.'s Cross–Mot. Summ. J. 30, ECF No. 13. Specifically, Plaintiff speculates that the redacted name is a person with whom Justice Fortas had some sort of illicit or improper relationship, and that DeLoach used the FBI's knowledge of that relationship to intimidate Justice Fortas into unethically disclosing details about the Black case. See id. at 30–33. Plaintiff supports that theory with various forms of historical evidence, including a documented encounter between Justice Fortas and DeLoach in which DeLoach shared with Fortas an allegation that Fortas had engaged in sexual acts with a male prostitute at a time before his nomination to the Supreme Court. Id.; see also Compl. Ex. 2, Tolson Letter, July 24, 1967.

On August 22, 2012, after exhausting his administrative remedies, Plaintiff filed the original complaint in the instant litigation (the “Original Complaint”) against the FBI and the U.S. Department of Justice (collectively, “the Government”), in which Plaintiff asserts that the FBI's redaction of the DeLoach Memorandum was in violation of the FOIA and of the Administrative Procedure Act (“APA”). The parties filed cross-motions for summary judgment and, on August 27, 2013, the Court denied the motions without prejudice, finding there to be insufficient evidence in the record for the Court to determine whether any of the FOIA's exemptions to disclosure apply. See Defs.' Mot. Summ. J. 1, ECF No. 9; Pl.'s Cross–Mot. Summ. J. 1; Order, Aug. 27, 2013, ECF No. 17. The parties subsequently filed supplemental motions for summary judgment, which are ripe for resolution. See Defs.' Suppl. Mot. Summ. J. 1, ECF No. 23; Pl.'s Renewed Mot. Summ. J., ECF No. 27.

Then, with the supplemental motions still pending, Plaintiff was granted leave to file a supplemental complaint regarding an additional alleged FOIA violation that arose during the course of the litigation (the “Supplemental Complaint”). Suppl. Compl., ECF No. 30. The Supplemental Complaint addresses the FBI's handling of a second FOIA request filed by Plaintiff on October 19, 2012. That FOIA request sought the contents of “FBI File No. 62–HQ–110654,” which is the file in which the DeLoach Memorandum is located, and, according to the FBI, is the background check file for the individual whose name is redacted from the DeLoach Memorandum. The FBI acknowledged receipt of Plaintiff's FOIA request by letter dated October 24, 2012, but it did not otherwise respond to the request until Plaintiff filed the Supplemental Complaint, at which point the FBI categorically withheld the file by letter dated December 9, 2013. See Pl.'s Mot. Leave File Suppl. Compl. Ex. B., Request Confirmation, Oct. 24, 2012, ECF No. 21–2; Pl.'s Mot. Leave File 2nd Suppl. Compl. Ex. 1, FOIA Denial Letter, Dec. 9, 2013, ECF No. 36. The Court then granted Plaintiff leave to add a second FOIA claim to the Supplemental Complaint based upon the Government's alleged failure to release reasonably segregable, nonexempt material from the requested file. See Order, Jan. 28, 2014, ECF No. 37. The parties have filed cross-motions for summary judgment on the claims in the Supplemental Complaint, and those motions are also now ripe for resolution. See Defs.' 2nd Suppl. Mot. Summ. J. 1, ECF No. 35; Pl.'s 3rd Mot. Summ. J. 1, ECF No. 38.

In an effort to resolve the pending sets of cross-motions for summary judgment, the Court ordered the Government to submit an unredacted version of the DeLoach Memorandum for in camera review. Order, Apr. 23, 2014, ECF No. 41. The Court further requested a supplemental affidavit and...