Stein v. Department of Justice and Federal Bureau of Investigation, s. 79-1615

• Decision Date: 17 November 1981
• Docket Number: Nos. 79-1615,79-2185,80-2387,s. 79-1615
• Citation: 662 F.2d 1245
• Parties: Melvyn E. STEIN, Plaintiff-Appellant/Cross-Appellee, v. DEPARTMENT OF JUSTICE AND FEDERAL BUREAU OF INVESTIGATION, Defendants-Appellees/Cross-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1245

662 F.2d 1245

Melvyn E. STEIN, Plaintiff-Appellant/Cross-Appellee, v. DEPARTMENT OF JUSTICE AND FEDERAL BUREAU OF INVESTIGATION Defendants-Appellees/Cross-Appellants.

Nos. 79-1615, 79-2185, 80-2387.

United States Court of Appeals Seventh Circuit.

Argued Feb. 23, 1981.

Decided Oct. 19, 1981.

As Modified on Denial of Rehearing and Rehearing En Banc

Nov. 17, 1981.

Rodolphe J. A. De Seife, Howard Univ. School of Law, Washington, D. C., for plaintiff-appellant/cross-appellee.

Alfred R. Mollin, Dept. of Justice, Washington, D. C., for defendants-appellees/cross-appellants.

Before FAIRCHILD, Senior Circuit Judge, PELL, Circuit Judge, CRABB, District Judge. ^*

CRABB, District Judge.

These cases involve appeals from various orders of the district court requiring disclosure of some government documents and allowing others to be withheld, all pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552 et seq. (1976). The tangled history of these cases makes it necessary to outline the prior proceedings in some detail.

I. PROCEDURAL HISTORY

In October of 1975, plaintiff-appellant Melvyn Stein made a request under the Freedom of Information Act and the Privacy Act, 5 U.S.C. § 552 et seq. (1976), to the Federal Bureau of Investigation (FBI) for all documents in its possession pertaining to him. ¹

On January 7, 1977, the FBI released 39 pages of documents to Stein, stating that other documents had been withheld in whole or in part pursuant to exemptions in the FOIA and the Privacy Act. One of the released documents indicated that the FBI had released to Polish intelligence authorities information concerning Stein, who, as a lawyer, represents Polish clients. Appellant filed an administrative appeal from the agency's decision to withhold documents. The agency did not respond within the required twenty-day period, 5 U.S.C. § 552(a)(6)(A)(ii), and appellant filed suit in the district court on March 22, 1977.

On May 17, 1977, the FBI released eleven additional documents to Stein. On June 20, 1977, the FBI submitted to the trial court an affidavit in which the director of the Office of Privacy and Information Appeals stated that a substantial backlog of appeals existed and that the appeals were being processed roughly in chronological order. On August 2, 1977, apparently after resolution of Stein's administrative appeal, the FBI released another eleven documents to appellant.

On September 23, 1977, the FBI submitted to the district court an index of the withheld documents, as well as two public affidavits in support of the agency's decision to withhold the documents. The parties then filed cross motions for summary judgment.

On November 17, 1978, the district court granted the FBI's motion for summary judgment and denied Stein's request for disclosure of documents relating to an investigation of appellant conducted by the FBI in 1956 when appellant was seeking employment with the federal government. Appellant has not challenged that decision. The trial court found that the FBI's public affidavits did not provide an adequate basis on which to decide whether to require disclosure of a second group of documents pertaining to internal security investigations conducted by the FBI in the early 1970's, including the transmission of information regarding appellant to Polish authorities. The court ordered the FBI to submit the documents for in camera inspection. The FBI complied with this order, and also submitted an affidavit of an agent of the FBI for in camera review.

A. Appeal No. 79-1615: Trial Court Decision of March 28, 1979

In a decision and order entered March 28, 1979, the district court granted the FBI's (appellee's) motion for summary judgment and ordered nondisclosure of all withheld documents. In its decision, the trial court agreed with the agency's assertion that thirteen entire documents and parts of two others were properly withheld pursuant to 5 U.S.C. § 552(b)(1) (hereafter sometimes referred to as (b)(1)), which exempts from disclosure matters that are:

(1)(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order.

From its in camera review of the record, the court found that the documents were properly classified pursuant to Executive Order 11,652, 3 C.F.R. 1085 (1971-75 Compilation), agreeing with the agency that:

Some of the documents would either directly or by inference reveal intelligence sources or techniques, and release of any of the documents might prejudice "a specific foreign relations" matter. We cannot say more about the documents without revealing exempt information.

Stein v. Dep't of Justice, No. 77-C-954 (N.D.Ill. March 28, 1979).

The government also argued, and the trial court agreed, that four entire documents, all found to be exempt under (b)(1), and parts of six other documents were exempt under 5 U.S.C. § 552(b)(7)(C), which allows nondisclosure of:

(7) investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would...

(C) constitute an unwarranted invasion of personal privacy.

Finally, the trial court found that portions of three documents were properly withheld pursuant to 5 U.S.C. § 552(b)(7)(D) (hereafter sometimes referred to as (b)(7)), which allows the government to withhold the names of confidential sources and their confidential information if obtained during the course of either a criminal investigation or a "lawful national security intelligence investigation."

Stein appealed the order of the district court raising four issues: (1) appellees' submission of an ex parte, in camera affidavit, and the trial court's apparent reliance on the affidavit, violated appellant's right to due process of law; (2) the classification of the documents after appellant made his FOIA request was not proper, apparently under Executive Order 12,065, 3 C.F.R. 190 (1979) which appellant asserted should have been applied to his case; ² (3) in turning over to Polish intelligence authorities information regarding appellant, and in refusing to provide appellant with the same information, defendants violated various constitutional rights of appellant, as well as various federal statutes; and (4) the documents involved in this lawsuit were not exempt under any of the three FOIA provisions asserted by the government.

While the appeal of this case was pending, the government asked this court to remand the case to the district court. The government based its motion primarily on the fact that newspapers in Chicago had published stories relating in some way to the documents at issue. The government indicated that it wished to reevaluate the desirability of maintaining the classified status of the documents sought by appellant Stein. This court granted the government's motion on January 11, 1980, and remanded the case "to the district court for the limited purpose of allowing the defendants-appellees to conduct a reevaluation of the classification of the documents in question, and to submit that reevaluation to the district court for further proceedings." This court ordered also that after the district court entered its order after remand, "such order shall be transmitted to this court as a supplement to record, and proceedings in this court will resume...."

B. Appeal No. 80-2387: District Court Order of March 24, 1980

After remand, the government reevaluated the classifications of the documents under exemption (b)(1) and Executive Order 12,065, which had become effective on December 1, 1978, superseding Executive Order 11,652 under which the original classification had been made. The reevaluation resulted in the documents being given enhanced classification, from "confidential" to "secret." See generally Executive Order 12,065, 3 C.F.R. 191, Sec. 1-1.

On March 7, 1980, two agents of the FBI visited the district judge and told him that they were conducting an espionage investigation. The agents sought to learn whether the judge or any member of his staff had been responsible for giving information regarding the classified documents to various news media. The agents asked the judge to undergo a polygraph examination, to which he agreed at first. He later decided not to undergo such a test.

On March 24, 1980, acting on a motion by the government to adopt the March 28, 1979 order allowing the withholding of the documents, the district court reversed its earlier decision and ordered that the government disclose substantially all the documents sought by appellant Stein. The court found that the withheld documents were "innocuous and ludicrous" and that no harm could come "from telling Mr. Stein what the agents were saying about him." Stein v. Dep't of Justice, No. 77-C-954 (N.D.Ill. Mar. 24, 1980). However, the district court ordered that "names other than Stein's may be deleted." The district court approved this limited nondisclosure pursuant to exemptions (b) (1) and (b)(7)(C) and (D).

After the district court entered its order, the government disclosed a substantial portion of the documents at issue. The government then moved the district court for reconsideration of its disclosure order. In support of its motion for reconsideration, the government submitted in camera to the district court copies of the documents at issue and a classified affidavit prepared by an FBI agent who attempted to justify nondisclosure of the remaining documents. The trial court refused to accept these in camera submissions and, on September 4, 1980, denied the government's motion for reconsideration.

The government then filed a cross-appeal of the district court decision ordering disclosure of the documents. The government maintains that the public affidavits of the FBI sustained the government's burden of showing that the documents at issue are exempt from disclosure; and...