The opinion of the court was delivered by: WEINFELD
Plaintiff, Corliss Lamont, the subject of a three-decade period of surveillance by the Federal Bureau of Investigation ("FBI"), petitioned the Department of Justice (the "Department") for disclosure of all FBI records containing information relating to him, pursuant to the Freedom of Information Act of 1966 ("FOIA" or the "Act").
In response, the Department released only 274 of the 2739 pages of material in its file on Lamont. He then commenced the instant lawsuit to compel release of the remainder, following which defendant disclosed an additional 1692 pages. Lamont continues to seek full disclosure of all documents and information, which the Department resists upon claims of exemption from disclosure under the Act.
Both parties moved for summary judgment; in the alternative, plaintiff requested the Court to examine the withheld materials in camera to determine the validity of the Department's claims of exemption. The Court referred the matter to a Magistrate, who supervised the agency's compilation of an index that keys each withholding to a specific assertion of privilege. The index reflects (1) material released to Lamont without restrictions, (2) material from which portions have been deleted, with indications of such deletions, and (3) material that has been withheld entirely. The Department also submitted several affidavits of FBI agents familiar with the Lamont file supporting the claimed exemptions.
The Magistrate issued a report recommending that the Court not examine the nondisclosed material in camera, but instead grant the defendant's motion for summary judgment based solely upon the Government's affidavits and index. Lamont urges rejection of the Magistrate's recommendations and presses his motion for summary judgment or an in camera inspection.
The documents released by the Department provide a useful factual perspective for the legal arguments in the case. They reveal that the FBI's thirty-year interest in plaintiff's activities covers three distinct periods: (1) an intermittent investigation into his suspected connection with the Communist Party and its goals (1942-1953), (2) an intensive search for evidence and witnesses to support a perjury prosecution based upon his denial of membership in the Communist Party (1953-1955), and (3) a more generalized gathering of information concerning Lamont's organizational activities and his financial contributions to certain groups (1955-1972).
In January 1944, FBI Director J. Edgar Hoover directed the preparation of a report on Lamont. The report, dated June 24, 1944, stated that, according to various confidential informants, he was a member of the Communist Party and several so-called "Communist front" organizations and was the author of articles and books, "most of which have followed Marxist ideology, propagandized the Soviet Union and advocated close collaboration between the U.S. and Russia."
Shortly thereafter, Lamont was placed on the "Security Index," an FBI surveillance program to monitor the activities of persons considered inimical to the country's internal security.
One purpose of the investigation, which continued sporadically for the next nine years, was to obtain "admissible evidence which will prove directly or circumstantially his membership in or affiliation with the Communist Party, and knowledge of the revolutionary aims and purposes of that organization."
Throughout his career Lamont persistently has denied any affiliation with the Communist Party.
On September 23, 1953, Lamont affirmed before the McCarthy Committee of the United States Senate that "I am not now and never have been a member of the Communist Party."
Thereafter the FBI, at the instigation of the Department of Justice, conducted an extensive investigation to obtain proof upon which to ground a perjury indictment. Despite a massive effort over an extended period,
detailed in reports labeled "SECURITY MATTER C/PERJURY," the FBI in September 1955 notified the Department that, having failed to locate witnesses necessary for a successful prosecution, it had concluded its investigation and had no plans for further evidence-gathering relating to a perjury prosecution.
After 1955, the FBI reports on plaintiff were less frequent, but he was nonetheless maintained on the Security Index after periodic agency review because he "continue(d) as Chairman of the Bill of Rights Fund and remain(ed) a contributor to various CP front groups";
aside from Lamont's financial contributions, his personal appearances and speeches in behalf of these organizations and his large production of books, articles, and pamphlets were constantly monitored as part of the Index surveillance. Thus the reports after 1955 contain information relating primarily to Lamont's travels, his writings and lectures, and his contact with public groups suspected of affiliation with or instigation by the Communist Party the National Committee for Anglo-Soviet Friendship, the American Committee for Protection of the Foreign Born, the Emergency Civil Liberties Committee, and the Bill of Rights Fund.
Many of these reports are of a pedestrian nature, recording his comings and goings and reiterating large blocks of material culled from prior reports. Although it does not appear that serious consideration was given to the possibility of prosecution for any federal crimes after 1955,
Lamont's file remained open until 1972, when his name was removed from "ADEX," the successor program to the Security Index.
Conceding that the Act reflects " "a general philosophy of full agency disclosure,' "
the Department relies on two of the FOIA's exemptions from disclosure to sustain its withholdings: Exemption 1, which protects properly classified national security material, and Exemption 7, which shields certain investigatory records compiled for law enforcement proposes.
The Magistrate found that since "the investigation of plaintiff involved "national security' and also possible violation of various criminal statutes," the threshold requirements of the two exemptions were satisfied; he recommended granting summary judgment to defendant based upon the further finding that the Department's review of the material and its affidavits established a prima facie case for nondisclosure. Relying on Weissman v. CIA,
the Magistrate also recommended that plaintiff's petition for an in camera inspection be denied because the Department's affidavits made the claims of exemption in good faith and adequately stated the basis for not disclosing the withheld items.
The Court, however, is of the view that its discretion to examine withheld documents in camera is not limited to instances where the Government's affidavits are suggestive of bad faith. The Department's expansive reading of the language of Weissman, adopted by the Magistrate, would appear inconsistent with the basic mandate of the Act, as amended in 1974:
"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 . . . and the burden is on the agency to sustain its action."
Moreover, the requirement that "any reasonably segregable portion of a record" shall be released to an FOIA claimant
and the fact-specific phrasing of Exemptions 1 and 7
indicate that Congress did not intend the Court passively to accept even the most sincerely advanced agency statements without having a factual basis supporting the claimed exemption.
This reading of the statute is supported by the legislative history of the 1974 Amendments, enacted over a strong presidential veto. The Senate Report cited "extensive abuses" in agency classification and withholding of information as the reason for Congress' amendment of the FOIA, so that "someone other than interested parties officials with power to classify and conceal information" could undertake an objective and independent review of administrative refusals to disclose information, particularly that cloaked under the rubric of "national security."
The Conference Committee accepted the Senate version of the in camera inspection provision and added that "(w)hile In camera inspection need not be automatic, in many instances it will plainly be necessary and appropriate. Before the court orders In camera inspection, the Government should be given the opportunity to establish by means of testimony or detailed affidavits that the documents are clearly exempt from disclosure. The burden remains on the Government under this law."
With respect to classified national security documents, most courts have concurred with the general test advanced in Weissman : summary judgment should be granted to the Government if its affidavits appear to be made in good faith, describe the contested document so that it logically fits into the asserted exemption, and are substantially unrebutted by plaintiff.
A subsequent panel of the District of Columbia Circuit has clarified the first prong of the Weissman holding so that "in camera inspection does not depend upon a finding or even tentative finding of bad faith" but may be ordered as a result of "an uneasiness, or a doubt (the judge) wants satisfied before he takes responsibility for a de novo determination."
This Court concurs that a showing of agency bad faith is not a Sine qua non of an in camera examination; otherwise, the judgment of the officials claiming the exemption representing an interested party in the litigation would be conclusive, and the Court's adjudicatory role all but eliminated.
While such an examination may be time-consuming, it would be no more burdensome than the line-by-line review that the Court has already made of the several thousand pages that constitute the record in this case. Thus, absent affidavits or other proof that convincingly establish the legal and factual validity of each claim of exemption, the Court, in its discretion, is of the view that an in camera inspection is normally required for it to fulfill its duty to make a de novo determination whether each withholding is justified under the statute and is limited to properly exempt matter.
Upon its review of the Lamont file, the context of deleted or withheld material, and the affidavits setting forth the basis on which the information is asserted to be exempt, the Court is satisfied that the Government has carried its burden of proof as to certain of the deletions and is, therefore, entitled to partial summary judgment on those items, as set forth hereafter. With respect to the balance, the Department will be required to submit the deleted material to the Court for examination, since plaintiff raises ...