Stern v. F.B.I., 83-1861

• Decision Date: 15 June 1984
• Docket Number: No. 83-1861,83-1861
• Citation: 737 F.2d 84,237 U.S.App.D.C. 302
• Parties: Carl STERN v. FEDERAL BUREAU OF INVESTIGATION, et al., Appellants.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 84

737 F.2d 84

237 U.S.App.D.C. 302

Carl STERN v. FEDERAL BUREAU OF INVESTIGATION, et al., Appellants.

No. 83-1861.

United States Court of Appeals, District of Columbia Circuit.

Argued Feb. 29, 1984.

Decided June 15, 1984.

Appeal from the United States District Court for the District of Columbia (Civil Action No. 81-02516).

Cornish F. Hitchcock, Washington, D.C., with whom Alan B. Morrison, Washington, D.C., was on the brief, for appellee.

Christine R. Whittaker, Attorney, Dept. of Justice, Washington, D.C., with whom J. Paul McGrath, Asst. Atty. Gen., Dept. of Justice, Stanley S. Harris, U.S. Atty., Washington, D.C. (at the time the brief was filed), and Leonard Schaitman, Attorney, Dept. of Justice, Washington, D.C., were on the brief, for appellants.

Before WALD, MIKVA and DAVIS ^*, Circuit Judges.

Opinion for the Court filed by Circuit Judge MIKVA.

MIKVA, Circuit Judge:

The Federal Bureau of Investigation (FBI) appeals from a district court order requiring disclosure of the names of three FBI employees investigated in connection with a possible cover-up of illegal FBI surveillance activities. No criminal charges were brought against these employees, but the FBI censured them for negligent job performance. The district court found that the Freedom of Information Act (FOIA), 5 U.S.C. Sec. 552 (1982), requires the FBI to release the names and that none of the FOIA disclosure exemptions are applicable in this case. We reverse in part and affirm in part. We hold that the FBI may withhold the identities of two of the censured employees under Exemption 7(C) of the FOIA. We agree with the district court, however, that the public's interest in disclosure of the identity of the third employee--a high level official found to have participated knowingly in the cover-up--outweighs that employee's privacy interest under both Exemption 6 and Exemption 7(C) of the FOIA. We agree with the district court, therefore, that the FBI must disclose the name of that particular employee.

I. BACKGROUND

This case arises from the discovery in the 1970's of the FBI's wide-spread illegal surveillance of political activists through the use of surreptitious entries and wiretappings. The Department of Justice (DOJ) conducted a full-scale investigation of the FBI's illegal activities, culminating in the April 1978 indictment of former high-level FBI officials L. Patrick Gray, III, W. Mark Felt, and Edward S. Miller. In the course of its investigation, the DOJ obtained information suggesting that the FBI, and perhaps one or more DOJ attorneys, failed to disclose fully surreptitious entries in response to inquiries made by the General Accounting Office (GAO) in 1974, by several congressional committees in 1975, and by attorneys involved in a suit against numerous federal officials that was filed in 1973 by the Socialist Workers Party (SWP).

In response to this evidence, in April 1978, Attorney General Griffin B. Bell directed FBI Director William Webster to conduct an inquiry to determine whether FBI officials acted improperly in failing to discover and report all instances of surreptitious entry. See Office of the Attorney General, Press Release (April 10, 1978). The FBI investigation which followed was conducted by the FBI's Office of Professional Responsibility and led to a report to the Attorney General ("the FBI Report" or "the Report") that was released to the public in July 1980. See Report of FBI Director William H. Webster to Attorney General Benjamin Civiletti (February 19, 1980).

The Report set forth the "most probable causes for the FBI's failure to respond completely and accurately" to each of the various inquiries regarding FBI illegal surreptitious entries. It acknowledged that some FBI employees had intentionally withheld crucial information and that others contributed inadvertently to the cover-up through negligence and general bureaucratic bungling. No criminal indictments followed the FBI's investigation. The FBI employees found to be primarily responsible for the cover-up no longer worked for the FBI, and no action was taken against them. The FBI, however, censured for negligent job performance three employees who had contributed to the cover-up and who were still employed by the FBI. It is the release of the identities of these three employees that is at issue in this case.

The FBI Report supplied the general job title and detailed the involvement of each of the three censured FBI employees. According to the Report, two of those employees The second censured FBI employee found to have contributed inadvertently to the cover-up provided inaccurate and misleading information to the Senate Select Committee on Intelligence and the House Select Committee on Intelligence in 1975 regarding surreptitious entries conducted against the SWP and Weather Underground fugitives. This employee was responsible for handling the congressional requests for information. The FBI Report found that, while some experienced FBI agents (all retired) intentionally may have suppressed revelation of surreptitious entries, the censured employee's shortcoming was simply his lack of perseverance in gathering complete and accurate information. Id. at 23. In censuring this employee, Webster concluded that greater investigative initiative on the employee's part might have resulted in the discovery of illegal entries.

                contributed inadvertently to the cover-up.  One of those employees had been assigned to the FBI's Legal Counsel Division and was involved in the 1973 SWP litigation against the FBI.  Over a three-year period during the course of that litigation, the government denied having conducted surreptitious entries against the SWP.  This denial was based upon the FBI's repeated and erroneous assertions to the DOJ that no such entries had occurred.  Eventually, the DOJ learned of the entries and corrected the government's denial.  The FBI Report concluded that there was no "deliberate attempt on the part of any current employee to misrepresent ... the investigative techniques used in the SWP case."    Id. at 16.  An agent assigned to the Legal Counsel Division, however, was "censured for derelictions of his responsibilities."    Id. at 17.  In the censure letter to that employee, FBI Director Webster stated that, if the employee had reviewed pre-existing files more thoroughly, he might have discovered that the FBI's representations in the SWP litigation concerning surreptitious entries were false
                

The FBI concluded that a third employee, a Special Agent in Charge (SAC) in the FBI's New York office, knowingly participated in a cover-up during a 1974 GAO audit of the FBI's domestic intelligence operations. This SAC followed specific directions from an Assistant Director to exclude from a particular teletype to FBI Headquarters any information concerning surreptitious entries carried out against the Weather Underground. The Report found that "there was an apparently deliberate attempt to withhold the existence of surreptitious entries from the GAO in this one instance." FBI Report at 6. Although the "individual most likely responsible for this misrepresentation retired in 1976," the FBI censured the SAC for his participation in that misrepresentation. Id. The SAC's censure letter was much more critical than the censure letters received by the other two employees. Webster concluded that the SAC "took part in an effort to withhold information from GAO" and that such action was "intolerable for a senior bureau official."

In sum, two contributors to the cover-up who were still FBI employees in 1980 were employees who, according to the Report, appeared to have acted inadvertently. The FBI Report presented no evidence that these employees violated any federal law, that they intended to cover up the illegal FBI activity, or that they were even aware of such attempts by others. The third employee, however, was found to have participated knowingly in the cover-up.

Several weeks after the Attorney General released the FBI Report, appellee Carl Stern, a television news reporter, requested that the FBI disclose the names of the three FBI employees whose censure was described by the Report. When the FBI refused, and all administrative appeals were exhausted, Mr. Stern filed suit in district court, seeking to have the information released under FOIA. Although the DOJ subsequently released to him copies of the letters of censure received by the three FBI employees, the employees' names and all other identifying material were redacted from the copies. Mr. Stern proceeded with his demand that the FBI release the FBI employees' names.

Both parties moved for summary judgment and, in June 1983, the district court granted summary judgment for the plaintiff, ordering disclosure of the names of the three censured FBI employees. In doing so, the court held that none of the FOIA disclosure exemptions apply in this case. The FBI and DOJ appealed.

II. DISCUSSION

The central purpose of FOIA is to "open[ ] up the workings of government to public scrutiny" through the disclosure of government records. McGehee v. CIA, 697 F.2d 1095, 1108 (D.C.Cir.1983). Congress passed this legislation in the belief that "an informed electorate is vital to the proper operation of a democracy." Id. at 1108-09. See FBI v. Abramson, 456 U.S. 615, 621, 102 S.Ct. 2054, 2059, 72 L.Ed.2d 376 (1982); NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242, 98 S.Ct. 2311, 2327, 57 L.Ed.2d 159 (1978). Yet Congress also realized that there are some government records for which public disclosure would be so intrusive--either to private parties or to certain important government functions--that FOIA disclosure would be inappropriate. This realization prompted Congress, both when FOIA was passed and in subsequent amendments, to engraft onto the statute a series of nine exemptions for cases in which disclosure would be inappropriate. 5 U.S.C. Sec. 552(b). In this case we are concerned...