Struth v. FBI

• Decision Date: 30 October 1987
• Docket Number: No. 82-C-51.,82-C-51.
• Citation: 673 F. Supp. 949
• Parties: Sandra STRUTH, Plaintiff, v. FEDERAL BUREAU OF INVESTIGATION, Defendant.
• Court: U.S. District Court — Eastern District of Wisconsin

673 F. Supp. 949

Sandra STRUTH, Plaintiff, v. FEDERAL BUREAU OF INVESTIGATION, Defendant.

No. 82-C-51.

United States District Court, E.D. Wisconsin.

October 30, 1987.

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COPYRIGHT MATERIAL OMITTED

Curry First, Perry, First, Lerner, Quindel & Kuhn, Milwaukee, Wis., for plaintiff.

Mel S. Johnson, Asst. U.S. Atty., Milwaukee, Wis., for defendant.

DECISION AND ORDER

CURRAN, District Judge.

Sandra Struth brings the above-captioned action pursuant to the Freedom of Information Act (FOIA), 5 U.S.C.A. § 552 (West 1977 & Supp.1987), seeking to compel the disclosure of information in the possession of the Federal Bureau of Investigation (FBI). She claims that the FBI is improperly withholding documents she has requested under FOIA relating to an investigation of her involvement in the early 1970's with an organization known as the New American Movement (NAM). Jurisdiction in this court is founded upon 5 U.S.C.A. § 552(a)(4) (West 1977 & Supp. 1987).

I. PROCEDURAL BACKGROUND

The plaintiff first sought the release of information from the defendant by a letter to FBI headquarters dated March 27, 1981. In response to this request the FBI sent Struth two pages of documents. See Complaint at Exhibit A. Also in 1981, the plaintiff mailed a request to the San Francisco field office of the FBI pursuant to the then-effective regulations establishing field offices as separate record systems. See Complaint at Exhibit B. The San Francisco office sent the plaintiff forty-one pages of documents and advised her that it had located eighty-five pages identifiable with her request. The defendant explained by letter that:

44 complete pages have been withheld from release to you. 39 pages have been withheld in their entirety in that the material is currently and properly classified (b)(1). 2 pages have been withheld under (b)(7)(D), in that the material if released would tend to identify a person who has furnished us information under the expressed promise of confidentiality. On the remaining 3 pages, exemption (b)(1) was assured in conjunction with (b)(7)(D) as explained above.

Complaint at Exhibit C. The defendant had made excissions and deletions on at least twelve of the forty-one pages released to the plaintiff. See Complaint at Exhibit D.

On August 11, 1981, the plaintiff appealed the withholding of information to FBI headquarters in Washington, D.C. See Complaint at Exhibit E. Shortly thereafter, the FBI released additional information to the plaintiff, although it continued to withhold what the plaintiff terms "significant aspects" of her appeal. The parties agree that the plaintiff had exhausted all her administrative remedies before filing her complaint in federal court on January 21, 1982. See letter from Assistant United States Attorney Mel Johnson to the Honorable Thomas J. Curran (received February 1, 1985).

In the instant lawsuit Struth claims that:

Plaintiff is entitled, pursuant to 5 U.S. C. § 552(a) et seq. and according to federal statutory law as well as the United States Constitution to inspect and copy the requested documents as well as have the totality of documents concerning plaintiff in custody of the defendants destroyed so that defendants no longer have in their custody any documents, including copies, pertaining to plaintiff and particularly the constitutionally protected activities she engaged in under the First Amendment to the United States Constitution.

Complaint at ¶ 14. In her prayer for relief the plaintiff asks:

1. That this court order defendants to produce the requested documents to her in their totality including without any deletions or excissions so that she may inspect and copy such.

2. That this court order defendants in so producing to plaintiff all such documents and defendants not retain in their custody or control any originals or copies of any documents whatsoever.

3. That this court award plaintiff her costs and disbursements in this action pursuant to 5 U.S.C. § 552(a)(4)(E) and, in addition, her reasonable attorney's fees.

Complaint at 4.

After the defendant answered, the plaintiff requested what is known as a Vaughn index—an itemization of the documents claimed to be exempt. See Vaughn v. Rosen, 484 F.2d 820 (D.C.Cir.1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed. 2d 873 (1974). In response, the government filed the declarations of FBI Special Agents Douglass C. Ogden and Richard A. McCauley. Agent McCauley, who at the time served in a supervisory capacity at FBI headquarters, provided a public index for the material sought by the plaintiff and withheld from disclosure pursuant to Exemption 1 of the FOIA. See 5 U.S.C.A. § 552(b)(1) (West 1977 & Supp.1987). Agent Ogden, another FBI supervisor of records, provided the FBI's justification for the assertion of the other FOIA exemptions applied to the material at issue.

After these declarations were on file, the defendant moved for dismissal or, in the alternative, for summary judgment on the ground that the FBI had demonstrated that the requested records are protected by one or more statutory exemptions. The FBI maintains that:

As set forth in the Ogden and McCauley affidavits, the FBI processed plaintiff's FOIA request and released all documents responsive to the request with deletions pursuant to the provisions of Title 5, U.S.C. § 552(b)(1), (b)(2), (7)(C) and (b)(7)(D).... such exemptions are entirely justified under the law.

Memorandum in Support of Defendants' Motion to Dismiss or in the Alternative for Summary Judgment at 2.

In response, the plaintiff moved for an in camera inspection of the documents withheld and asked that a ruling on the dispositive motion be stayed until pretrial discovery was completed. See Federal Rule of Civil Procedure 56(f). The government countered by moving for a protective order staying all discovery until the resolution of the dispositive motion. The plaintiff, in turn, moved for an order compelling discovery.

In this posture this case was transferred to this court where the discovery disputes continued through April of 1986. The court then ordered the parties to file stipulated facts and to file final briefs addressing the motion for summary judgment.¹ In addition, the plaintiff's motion for an in camera inspection, which was not opposed by the defendant, was granted. See Orders of May 15, 1986 and February 26, 1986. In compliance with the Order, the FBI submitted eighty-eight pages of documents under seal. Having now examined these documents, the court will address the summary judgment motion.

II. LEGAL STANDARDS

Section 552(a)(4)(B) of the Freedom of Information Act provides that:

On complaint, the district court of the United States in the district in which the complainant resides, or has her principal place of business, or in which the agency records are situated, or in the District of Columbia, has jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant. In such a case the court shall determine the matter de novo, and may examine the contents of such agency records in camera to determine whether such records or any part thereof shall be withheld under any of the exemptions set forth in subsection (b) of this section and the burden is on the agency to sustain its action.

5 U.S.C.A. § 552(a)(4)(B) (West 1977 & Supp.1987).

Summary judgment is commonly used to adjudicate FOIA cases. See, e.g., Miller v. United States Department of State, 779 F.2d 1378 (8th Cir.1985). However, unlike in other civil actions, a decision to grant or deny summary judgment in a FOIA suit does not hinge on the existence of a genuine issue of material fact. See Hemenway v. Hughes, 601 F.Supp. 1002, 1004 (D.D.C. 1985). Rather, summary judgment can be granted on the basis of agency affidavits "when the affidavits describe `the 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 sic by evidence of agency bad faith.'" Miller v. Casey, 730 F.2d 773, 776 (D.C.Cir. 1984), quoting Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C.Cir.1981). Accord Ely v. Federal Bureau of Investigation, 658 F.Supp. 615, 617 (C.D.Ill.1987). If all these requisites are met, such affidavits are usually accorded substantial weight. See, e.g., Gardels v. CIA, 689 F.2d 1100, 1104 (D.C.Cir.1982); Taylor v. Department of the Army, 684 F.2d 99, 106-07 (D.C.Cir.1982); Allen v. Department of Defense, 658 F.Supp. 15, 18 (D.D.C.1986). Courts have consistently held that a requester's opinion disputing the risk created by disclosure is not sufficient to preclude summary judgment for the agency, when the agency possessing the relevant expertise has provided sufficiently detailed affidavits. See, e.g., Gardels, 689 F.2d at 1006 n. 5.

Rule 56(e) of the Federal Rules of Civil Procedure provides that an affidavit must be based upon the personal knowledge of the affiant, must demonstrate the affiant's competency to testify as to matters stated, and must set forth only facts which would be admissible in evidence. Unsworn declarations, such as the ones filed in the instant case, are also permitted. See 28 U.S.C. § 1746. In FOIA cases, the declaration of an agency official knowledgeable in the way information is gathered satisfies this personal knowledge requirement. See, e.g., Spannaus v. United States Department of Justice, 813 F.2d 1285, 1289 (4th Cir. 1987); Laborers' International Union v. United States Department of Justice, 578 F.Supp. 52, 55-56 (D.D.C.1983) (affiant competent where observations based on review of investigative report and upon general familiarity with the nature of investigations similar to that documented in requested report), aff'd, 772 F.2d 919 (D.C. Cir.1984).

If a motion is properly supported, summary...