Shaw v. US Dept. of State, Civ. A. No. 80-1056

• Citation: 559 F. Supp. 1053
• Decision Date: 28 February 1983
• Docket Number: 81-0942.,Civ. A. No. 80-1056
• Parties: Gary SHAW, Plaintiff, v. U.S. DEPARTMENT OF STATE, et al., Defendants. Bernard FENSTERWALD, Jr., Plaintiff, v. U.S. DEPARTMENT OF JUSTICE, Defendant.
• Court: U.S. District Court — District of Columbia

559 F. Supp. 1053

Gary SHAW, Plaintiff, v. U.S. DEPARTMENT OF STATE, et al., Defendants.

Bernard FENSTERWALD, Jr., Plaintiff, v. U.S. DEPARTMENT OF JUSTICE, Defendant.

Civ. A. Nos. 80-1056, 81-0942.

United States District Court, District of Columbia.

February 28, 1983.

COPYRIGHT MATERIAL OMITTED

Bernard Fensterwald, Jr., Fensterwald & Associates, Arlington, Va., for plaintiffs.

Nathan Dodell, Asst. U.S. Atty., Miriam M. Nisbet, U.S. Dept. of Justice, Washington, D.C., for defendants.

MEMORANDUM OPINION

JOYCE HENS GREEN, District Judge.

Plaintiffs in these consolidated cases have long been investigating the mysterious circumstances surrounding the assassination of President John F. Kennedy. To further their search, and pursuant to the Freedom of Information Act, 5 U.S.C. § 552 ("FOIA" or "Act"), plaintiffs requested access to records in the possession of defendants pertaining to several individuals allegedly part of a plot by exiled French Secret Army terrorists to murder the American President.¹ Now before the Court are defendants' motions for summary judgment and plaintiffs' oppositions thereto.

In any FOIA case, the Court is to "determine the matter de novo, and ... the burden is on the agency to sustain its action." 5 U.S.C. § 552(a)(4)(B) (1976). Summary judgment may be granted if the moving party proves that no substantial and material facts are in dispute and that he is entitled to judgment as a matter of law. McGehee v. Central Intelligence Agency, 697 F.2d 1095 at 1100 (D.C.Cir.1983); Weisberg v. United States Dep't of Justice, 627 F.2d 365, 368 (D.C.Cir.1980); Founding Church of Scientology v. National Security Agency, 610 F.2d 824, 836 (D.C.Cir.1979). To prevail in a FOIA suit, "the defending agency must prove that each document that falls within the class requested either has been produced, is unidentifiable or is wholly exempt from the Act's inspection requirements." Id., quoting National Cable Television Ass'n v. FCC, 479 F.2d 183, 186 (D.C. Cir.1973) (footnote omitted).

Defendants Department of State (State), the Immigration and Naturalization Service of the Department of Justice (INS) and the Drug Enforcement Agency of the Department of Justice (DEA)² maintain that they were unable to locate any records with the identifying information provided by plaintiffs. Plaintiffs' claims against those agencies concern the adequacy of the search performed.

Defendants the Federal Bureau of Investigation (FBI) and the Central Intelligence Agency (CIA), however, have withheld some documents in their entirety and some portions of documents, relying on particular exemptions to the Act. Affidavits have been submitted demonstrating the applicability of the exemptions invoked and have been given the requisite "substantial weight" in the reviewing process. See, e.g., Hayden v. National Security Agency, 608 F.2d 1381, 1384 (D.C.Cir.1979), cert. denied, 446 U.S. 937, 100 S.Ct. 2156, 64 L.Ed.2d 790 (1980). If the affidavits

describe the documents and justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith ...

then summary judgment is appropriate. Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C.Cir.1981). Although it was not obligatory, in this case to expedite resolution of these matters, the Court inspected a sample of the CIA documents as designated by counsel and all of the FBI documents to determine whether denial of access was indeed justified under the Act.

I. Department of State

Civil Action No. 80-1056

On April 20, 1979 plaintiff Shaw requested access to records of any kind relating to Michael Victor Mertz, Christian David and Thomas Eli Davis, III.³ By letters dated July 10, 1979, August 21, 1979 and August 28, 1979, defendant released 45 documents in full and 19 in part, pertaining to Christian David. Defendant also informed plaintiff, by letter dated September 5, 1979, that with reference to Thomas Eli Davis, III, partial release would be made from documents referred to the State Department by the FBI.⁴ Approximately 8 months later, on March 19, 1980, plaintiff's counsel wrote to State's FOIA Appeal Board formally appealing State's ostensible denial of access to records pertaining to Davis since plaintiff had received none to date.⁵

Defendant's motion for summary judgment is supported by the affidavits of Thomas W. Ainsworth, Acting Deputy Assistant Secretary for the Classification/Declassification Center of the Department of State and Frank M. Machak, Chief of the Information Access and Services Division of the Department of State's Foreign Affairs Information Management Center. The Ainsworth affidavit includes a Vaughn index⁶ justifying the withholding of all or part of 34 documents pertinent to plaintiff's requests.

But the legal sufficiency of that index is not in issue: "In opposing the motion of the State Department for summary judgment, plaintiff limits himself to contesting the adequacy of the search."⁷ Plaintiff contends that State should have more than one document on Jean Rene Souetre. Yet, as the Machak affidavit points out, plaintiff never requested information regarding this individual from this defendant.⁸ The one document which was released to plaintiff about Souetre had been referred to the Department of State by the CIA.

Plaintiff also questions State's response that it located no documents relating to Michael Victor Mertz. Machak's affidavit explains the coordinated search process undertaken for any material on Mertz. Seven record systems were thoroughly reviewed but nothing pertaining to Mertz was discovered. In addition, each of the 34 documents listed in the Ainsworth affidavit as having been released to plaintiff with portions deleted or as having been withheld in their entirety, was reviewed for references to Mertz. Mertz was not mentioned in the deleted portions of the 19 documents released in part, nor in any of the 15 documents withheld altogether. Particularly, since plaintiff's letter of appeal concerned Davis only, it is determined that State's search with reference to Mertz was more than sufficient. See, e.g., Goland v. Central Intelligence Agency, 607 F.2d 339, 352-53, 369-70 (D.C.Cir.1978), cert. denied, 445 U.S. 927, 100 S.Ct. 1312, 63 L.Ed.2d 759 (1980).

Finally, plaintiff challenges the adequacy of defendant's search for information pertaining to Thomas Eli Davis, III. According to the Machak affidavit the four record systems searched did not turn up any additional documents pertaining to Davis. However, duplicates of six documents which had been referred to State by the FBI were located in the Security Records. Plaintiff was notified of these items and the applicable exemptions supporting non-disclosure of some parts of them on September 5, 1979. But plaintiff objects specifically to defendant's failure to locate Davis' passport file. Defendant has submitted ample documentation of the unsuccessful search efforts of the Passport Office.⁹ An agency's search for FOIA documents need only be reasonable. McGehee v. CIA, 697 F.2d at 1100; Founding Church of Scientology v. NSA, 610 F.2d at 837; Goland v. CIA, 607 F.2d at 353. Based on the thoroughness of the searches conducted as evidenced by the detailed affidavits discussed herein, it is determined that the Department of State's search was indeed adequate and it therefore appears that summary judgment should be granted in its favor.

II. Immigration and Naturalization Service

A. Civil Action No. 80-1056

By letter dated March 9, 1978 plaintiff requested access to all records, including photographs, pertaining to Jean Souetre, a/k/a Michael Roux, a/k/a Michael Hertz.¹⁰ Attached to his request was a copy of a CIA document previously released to plaintiff providing background information on Souetre.¹¹ Defendant responded that no records could be located and more identifying data would be required.¹² Plaintiff learned that Souetre was born October 15, 1930 in the Gironde area of France and forwarded that information to defendant on December 4, 1978.¹³ On April 11, 1979 defendant informed plaintiff that it had been unable to locate any records responsive to his requests. One record was found for one of the aliases but did not match the date and place of birth provided by plaintiff. INS invoked Exemption (b)(7)(C) of the FOIA to deny access to that record, as the disclosure would constitute a "clear and unwarranted invasion of privacy."¹⁴ The Court has inspected this document in camera and has verified that defendant's assessment is correct. Another document pertaining to that individual was subsequently located and produced for in camera inspection but it, too, upon review fails to coincide with the information provided by plaintiff.

Accompanying defendant's motion and in support thereof is the affidavit of William J. Chambers, District Director of the Dallas, Texas District Office of the United States Immigration and Naturalization Service, which recounts the history and contents of communications between the plaintiff and defendant as described above, and the affidavit of Cecil G. Christian, Chief, Records Administration and Information Branch of the United States Immigration and Naturalization Service,¹⁵ which describes the process of retrieving and locating files in the automated index and manually.

Defendant has moved for summary judgment on the basis that a thorough search produced no records responsive to plaintiff's request. Plaintiff opposes this motion, alleging the inadequacy of defendant's search in view of Mertz's trips to the United States, Roux's naturalization in 1970 and a possible investigation of Davis for loss of citizenship. However, plaintiff's request to INS was for records pertaining to Souetre, a/k/a Hertz, a/k/a Roux. Davis was not a subject of any request to INS in this...