Weisberg v. US Department of Justice

• Decision Date: 24 October 1973
• Docket Number: No. 71-1026.,71-1026.
• Citation: 489 F.2d 1195
• Parties: Harold WEISBERG, Appellant, v. U. S. DEPARTMENT OF JUSTICE.
• Court: U.S. Court of Appeals — District of Columbia Circuit

489 F.2d 1195 (1973)

Harold WEISBERG, Appellant, v. U. S. DEPARTMENT OF JUSTICE.

No. 71-1026.

United States Court of Appeals, District of Columbia Circuit.

Decided October 24, 1973.

Bernard Fensterwald, Jr., Washington, D. C., with whom James H. Lesar, Washington, D. C., was on the brief, for appellant.

Walter H. Fleischer, Atty., Dept. of Justice, with whom Asst. Atty. Gen. L. Patrick Gray, III, at the time the brief was filed, Thomas A. Flannery, U. S. Atty., at the time the brief was filed, Harold H. Titus, Jr., U. S. Atty., and Barbara L. Herwig, Atty., Dept. of Justice, were on the brief, for appellee. Alan S. Rosenthal, Atty., Dept. of Justice, also entered an appearance for appellee.

Before: BAZELON, Chief Judge, DANAHER, Senior Circuit Judge, WRIGHT, McGOWAN, TAMM, LEVENTHAL, ROBINSON, MacKINNON, ROBB and WILKEY, Circuit Judges, sitting en banc.

Opinion for the Court filed by Senior Circuit Judge DANAHER.

Dissenting opinion filed by Chief Judge BAZELON."

ON REHEARING EN BANC

DANAHER, Senior Circuit Judge:

Relying upon 5 U.S.C. § 552(a)(3) of the Freedom of Information Act, appellant in the district court sought to compel disclosure of certain materials¹ compiled by the Federal Bureau of Investigation following the assassination of the late President Kennedy. Appellant argued that he is a professional writer who has published four books treating of the Kennedy assassination. The Department of Justice moved that the complaint be dismissed or, alternatively, for summary judgment, predicating its position upon Section 552(b)(7) of the Act which, as here pertinent, provides:

(b) This section shall not apply to matters that are

* * * * * *

(7) investigatory files compiled for law enforcement purposes . . . .

The district court without opinion granted the Department's motion to dismiss.² We are satisfied that the record before us clearly demonstrates the desired materials³ were part of the investigatory files compiled by the FBI for law enforcement purposes, and, as such, are exempt from the disclosure sought to be compelled. Accordingly, we affirm.⁴

I.

President Kennedy was pronounced dead at 1:00 p. m. on Friday, November 22, 1963. That day, at 2:38 p. m., Lyndon B. Johnson was sworn in as the thirty-sixth President of the United States and immediately by plane left Texas for Washington.

Director Hoover testified before the Warren Commission that

When President Johnson returned to Washington he communicated with me within the first 24 hours and asked the Bureau to pick up the investigation of the assassination because as you are aware, there is no federal jurisdiction for such an investigation. It is not a Federal crime to kill or attack the President or Vice President or any of the continuity of officers who would succeed to the presidency.

Appellant has argued on brief that the FBI materials could not have been compiled for law enforcement purposes since, in 1963 the State of Texas but not United States "had jurisdiction over the crime."⁵ He thus contended that he was "entitled to the sought material as a matter of law and not as a matter of grace."

Clearly, in the day and time of it all, the President contemplated collaboration with Texas authorities by agents of the Secret Service and of the Federal Bureau of Investigation looking to the early apprehension and ultimately the conviction of whoever murdered President Kennedy. It was speedily developed that the rifle from which the assassin's bullets had been fired had been shipped to one Lee Harvey Oswald. The latter was placed under arrest and charged with the perpetration of the crime. Two days later, as an investigation of massive proportions got under way, Oswald, then in the custody of Dallas Police, was fatally shot by one Jack Ruby.

Director Hoover further testified before the Warren Commission⁶ thus:

However, the President has a right to request the Bureau to make special investigations, and in this instance he asked that this investigation be made. I immediately assigned a special force headed by the special agent in charge at Dallas, Texas, to initiate the investigation, and to get all details and facts concerning it, which we obtained, and then prepared a report which we submitted to the Attorney General for transmission to the President. Hearings before the Warren Commission, Vol. 5, p. 98.

To glean some understanding of the magnitude of the investigatory organization which was speedily activated, we may turn to the Foreword of the Warren Commission Report, xii, from which we quote:

The scope and detail of the investigative effort by the Federal and State agencies are suggested in part by statistics from the Federal Bureau of Investigation and the Secret Service. Immediately after the assassination more than 80 additional FBI personnel were transferred to the Dallas office on a temporary basis to assist in the investigation. Beginning November 22, 1963, the Federal Bureau of Investigation conducted approximately 25,000 interviews and reinterviews of persons having information of possible relevance to the investigation and by September 11, 1964, submitted over 2,300 reports totaling approximately 25,400 pages to the Commission. During the same period the Secret Service conducted approximately 1,550 interviews and submitted 800 reports totaling some 4,600 pages.

We deem it demonstrated beyond peradventure that the Department's files: (1) were investigatory in nature; and (2) were compiled for law enforcement purposes.⁷ When that much shall have been established, as is so clearly the situation on this record, and the district judge shall so determine, such files are exempt from compelled disclosure.

II.

While the statute speaks for itself in the respect under consideration, we may note that the legislative history additionally explains:

It is also necessary for the very operation of our Government to allow it to keep confidential certain material, such as the investigatory files of the Federal Bureau of Investigation.⁸

In slightly different context to be sure, Judge Hays analyzed the Congressional purpose thus:

If an agency\'s investigatory files were obtainable without limitation after the investigation was concluded, future law enforcement efforts by the agency could be seriously hindered. The agency\'s investigatory techniques and procedures would be revealed. The names of people who volunteered the information that had prompted the investigation initially or who contributed information during the course of the investigation would be disclosed. The possibility of such disclosure would tend severely to limit the agencies\' possibilities for investigation and enforcement of the law since these agencies rely, to a large extent, on voluntary cooperation and on information from informants.⁹ (Emphasis added).

There can be no question that 5 U.S.C. § 552 had as its principal purpose that there was to be disclosure to the public of the manner in which the Government conducts its business. Congress additionally was concerned with the dilemma in which the public finds itself when forced to "litigate with agencies on the basis of secret laws or incomplete information."¹⁰ We have repeatedly made evident our appreciation of the principle that generally disclosure, and not withholding, of information is called for, especially where there is an adversarial posture presented as in Bristol-Myers Co. v. FTC, 138 U.S. App.D.C. 22, 25, 424 F.2d 935, 938, cert. denied, 400 U.S. 824, 91 S.Ct. 46, 27 L. Ed.2d 52 (1970).¹¹ But the remedy appropriately provided in § 552(a)(3) is not available in every situation, and as we have previously noted, § 552(b) is explicit that § 552 does not apply to matters that are specifically exempted.

We are not here speaking of trade secrets, or personnel and medical files, or patent information or internal revenue returns, or yet other material which, by statute (see, e. g., 41 CFR § 105-60.604, 1972), had been specifically exempted from disclosure. We are not treating of geological information or matter required by Executive order to be kept secret. We are not discussing any problem except that of compelled disclosure of Federal Bureau of Investigation investigatory files^** compiled for law enforcement purposes. Certainly the answer does not depend upon what this appellant desires to accomplish if access be afforded. The Court has told us that the Act does not "by its terms, permit inquiry into particularized needs of the individual seeking the information." EPA v. Mink, 410 U.S. at 86, 93 S.Ct. at 835. Against the background we have hereinbefore set out, we may appropriately turn, particularly as a frame of reference, to the correspondence between the appellant and the Department prior to the institution of this action.

This appellant, in his letter of May 16, 1970 attached as an exhibit to his complaint, submitted to the Department of Justice the following:

With regard to the spectrographic analysis, if you are not aware of it, not then having been in your present position, I think you should know that if it does not agree in the most minute detail with the interpretation put upon it by the Warren Commission, their Report is a fiction.

Appellant then transmitted the Department's form entitled "Request For Access To Official Record Under 5 U.S. C. 552(a) and 28 CFR Part 16," describing the material set forth in our footnote 3, supra. A further exhibit attached to the appellant's complaint discloses that the Department under date of June 12, 1970, wrote:

Spectrographic Analyses: You have asked for access to the spectrographic analyses conducted on certain bullet evidence involved in the assassination.

I regret that I am unable to grant your request in that the work notes and raw analytical data on which the results of the spectrographic tests are based are part of the investigative files of the FBI and are specifically exempted from public disclosure as investigatory files compiled for law

...