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07/07/76 Harold Weisberg, v. U. S. Department of

July 7, 1976

HAROLD WEISBERG, APPELLANT

v.

U. S. DEPARTMENT OF JUSTICE, ET AL. 1976.CDC.167 DATE DECIDED: JULY 7, 1976



UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

Appeal from the United States District Court for the District of Columbia, D.C. Civil Action 75-0226.

APPELLATE PANEL:

Robinson and Wilkey, Circuit Judges and Jameson,* United States Senior District Judge for the District of Montana.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WILKEY

Wilkey, Circuit Judge:

Following our decision en banc in Weisberg v. Department of Justice *fn1 the Freedom of Information Act was amended *fn2 to facilitate access to certain investigatory files, those previously falling within Exemption 7. Plaintiff Weisberg accordingly renewed his request for scientific investigatory data compiled after the assassination of President Kennedy and the wounding of Governor Connally, alleged to be in the files of the Federal Bureau of Investigation and the United States Energy Research and Development Administration (formerly the Atomic Energy Commission). In the course of this renewed litigation under the Freedom of Information Act plaintiff made certain demands for the production of information and addressed interrogatories to the Department of Justice. After back and forth demands, responses, and conferences, which we need not detail here, data in various forms was furnished plaintiff, which he claims to be insufficient.

In hearings held on 21 May and 15 July 1975, the District Court (Pratt, J.) refused to order the Government to respond to plaintiff Weisberg's interrogatories, which it described as "oppressive," *fn3 found that the Government had "complied substantially" with plaintiff's demands *fn4 and accordingly granted defendants' motion to dismiss the action as moot. *fn5 The Government defendants' position, sustained by the District Court, was that all data which existed and which had been described in plaintiff's request had been furnished, and that other data for which Weisberg repeated his demands did not exist. Before reaching this overall conclusion that the Government defendants had "complied substantially," the trial court made no detailed findings of fact, nor did it list any material relevant facts as not in dispute and relied upon to support a summary judgment.

In response to his demands in this Freedom of Information Act suit plaintiff has received letters from Government officials, affidavits from Government employees, some scientific data which he requested, and other scientific data which he maintains he did not request and does not need; he has had conferences with Government officials; and he has heard the statements and arguments of Government counsel in court. He has not received all of the data which he has demanded and which he claims still to exist or to have existed at one time. He has not received an answer to any of his interrogatories, nor has he had the opportunity to examine a single live witness either on deposition or on trial before the District Court.

We make no attempt to unravel the conflicting claims, assertions, or responses, but we have identified certain demands which appear not to have been answered satisfactorily by the Government defendants, i.e., demands which raise material factual questions still in dispute.

1. Final reports of spectrographic analysis -- The FBI claims it does not have such "final reports" as sought by Weisberg. The FBI asserts that Special Agent Gallagher made an oral report of spectrographic analysis to Special Agent Frazier, who incorporated the oral report in a comprehensive report to the Dallas police, which is a public document, and which has been turned over to Weisberg. The Government asserts this is all there is. Special Agents Gallagher and Frazier are now retired from the FBI but both are living, yet no testimony or affidavit has been received from them.

2. Neutron activation analyses of bullet fragments -- The FBI asserts that these were very small samples and have been turned over to Weisberg. Plaintiff thinks there is more. The analyses were performed at the Oak Ridge National Laboratory with FBI participation. Apparently no one with personal knowledge of this has testified or furnished affidavits. The Government representative furnishing information by letter to plaintiff originally furnished incorrect information, which subsequently was corrected.

3. Raw data of the spectrographic and neutron activation analysis tests -- Weisberg claims that some of this has been withheld, particularly raw data on the Jarell-Ash spectrographic analysis. The FBI maintains that the only report of this is on a worksheet already furnished Weisberg, and that the Jarell-Ash spectrographic analysis results are on that worksheet.

4. Neutron activation analysis testing of clothing -- Plaintiff maintains he has been promised the results of such testing and that he has not received this, although admitting that he has received certain related materials from the National Archives. The FBI responds that the neutron activation analysis testing has not been furnished because it was never done, and that the statement in the original affidavit mentioning such testing was an error subsequently corrected by the responsible FBI Special Agent.

5. Emissions spectroscopy -- This allegedly was used to determine the elemental composition of the borders and edges of holes in clothing and metallic smears present on a windshield and a curbstone. The FBI maintains that the results were inconclusive and such results as the FBI has ...


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