UNITED STATES DISTRICT COURT, SOUTHERN DISTRICT OF NEW YORK
July 2, 1979
CORLISS LAMONT, Plaintiff, against DEPARTMENT OF JUSTICE, Defendant.
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.
FOIA In Camera Review
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 material issues as to whether the Government's rationales for nondisclosure in fact justify all the deletions for which they are asserted.
Exemption 1: Classified Matters
Under Exemption 1 as rewritten by the 1974 Amendments, the Government must establish that withheld matters are "(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order."
The documents at issue are currently classified under Executive Order 12065,
which sets forth detailed procedural mandates for classification and continued classification of material and two general substantive requirements: (1) that the information concern a specified "category" of data related to national security, including "foreign government information; intelligence activities, sources or methods; foreign relations or foreign activities of the United States"
and (2) that "an original classification authority also determines that (the information's) unauthorized disclosure reasonably could be expected to cause at least identifiable damage to the national security."
The FBI's affidavits establish that proper procedures for agency review of classified documents were followed in this case. They also set forth five rationales for nondisclosure, one of which is invoked to support the claim of exemption for each of 115 documents or parts thereof: Disclosure would reveal (1) a secret intelligence method, (2) a secret intelligence source, (3) the FBI's cooperation with a foreign police agency which has asked that its cooperation be kept confidential, (4) the FBI's interest in a specific foreign relations matter, or (5) information classified by a foreign intelligence agency.
Lamont concedes that the latter, to wit, the information classified by a foreign intelligence agency, may be withheld but contends that the first four rationales do not implicate the "national defense or foreign policy."
However, the Court is persuaded that the interests identified in the FBI's affidavits are such that their disclosure might cause "identifiable damage to the national security": the Government's ability to gather intelligence information essential to national defense and security could be undermined if its secret sources and investigatory methods whether used in domestic or foreign intelligence operations were disclosed to the public, and the disclosure of the FBI's interest in a foreign relations matter or cooperation with a foreign police agency could not only damage the Bureau's ability to gather information but could also impair diplomatic relations.
Deferring to the expert judgment and policymaking authority of the Executive Department, the Court holds that the Department has satisfied its burden under the first prong of Exemption 1, that the criteria for classification are valid under Executive Order 12065.
The Court's inquiry does not end with this finding, for the withheld material must be shown "in fact" to be "properly classified" under the criteria delineated in the Government's affidavits. The Court has no problem in granting summary judgment to defendant with respect to the documents classified by foreign agencies, as the only factual issue is whether the agency actually made the classification, and plaintiff does not dispute the point.
With regard to the other matter, however, the Government's claims for exemption do not so clearly emerge.
The first problem with the Department's submissions is that there is no sufficient description to demonstrate that a document logically falls into the category asserted by the affidavits.
There is no attempt to explain why each withheld document would have the untoward results of disclosing intelligence sources or methods or revealing the FBI's interest in a foreign relations matter or cooperation with a foreign policy agency. The affidavits are content merely to pigeonhole each withholding in one of the categories. Other courts in the last two years have declined to grant summary judgment where the Government's description of the withheld documents was similarly conclusory or factually inadequate.
Further questions are raised upon analysis of the FBI's explanation of specific deletions. For instance, document 405A is represented to be a one- page letter containing "classified data . . . confined to paragraph two," yet the entire document has been withheld pursuant to Exemption 1. Similarly overbroad assertion of privilege for entire pages or whole documents is replicated in many other documents, with no explanation of why nonconfidential material cannot be segregated from the validly classified information.
Another example: pages seven through nineteen of document 44, a report on Lamont, are not disclosed because they would reveal "intelligence sources and methods"; but in other, analogous, reports the Department did excise the names and identifying information while disclosing the bulk of the pages.
In sum, the Government's reasons, when carefully compared with the pattern of nondisclosure, suggest that the Department may have withheld segregable nonexempt material when it classified whole documents or parts thereof as "confidential." This is not to say that any bad faith or lack of due diligence is involved, for "government officials who would not stoop to misrepresentation may reflect an inherent tendency to resist disclosure."
A final ground for not granting summary judgment is that plaintiff has raised a material issue of fact that would mandate disclosure and declassification if borne out by the Court's in camera inspection: have the intelligence methods and FBI interest in foreign affairs matters already been specifically revealed to the public? If so, there is no reason such material cannot now be disclosed to Lamont. The "sunshine" purposes of the FOIA would be thwarted if information remained classified after it became part of the public domain.
The Government raises the valid concern that such a search of the public record would be unduly burdensome, but plaintiff urges that any survey may be confined to seven sources, including the Church Committee Report and the files of two pending court cases.
These materials have revealed much about FBI activities and techniques; the Court itself is willing to compare their revelations with the allegedly secret methods and foreign actions that have been classified in Lamont's file to determine whether withholding is justified.
Accordingly, the Court, for the reasons set forth above, denies summary judgment where entire documents or substantial parts thereof have been withheld pursuant to Exemption 1 because they are said to reveal confidential sources,
or FBI cooperation with a foreign agency or interest in a foreign affairs matter.
Only by examining this material can the Court make a confident determination, since the present record is beclouded with conclusory allegations and inconsistencies. On the other hand, the above-mentioned problems do not prevent the Court from granting summary judgment where the defendant has excised just the names of confidential sources and the context and size of the deletion bear out the claim, as noted below.
In these instances, the record is adequate to give the Court objective verification in support of the Government's position.
Exemption 7: Law Enforcement Matters
The bulk of the Department's assertions of privilege fall under Exemption 7, which allows nondisclosure of
investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would (A) interfere with enforcement proceedings, (B) deprive a person of a right to a fair trial or an impartial adjudication, (C) constitute an unwarranted invasion of personal privacy, (D) disclose the identity of a confidential source and, in the case of a record compiled by a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence investigation, confidential information furnished only by the confidential source, (E) disclose investigative techniques and procedures, or (F) endanger the life or physical safety of law enforcement personnel . . . .
This exemption has been invoked to justify deletion of parts of documents names, phrases, paragraphs. To support summary judgment upholding nondisclosure of the deleted matter, the Department must prove (1) that the matter is contained in a law enforcement record and (2) that the information falls under one of the six subcategories of the exemption.
Law Enforcement Records
The threshold determination in Exemption 7 cases is whether the information at issue is found in "investigatory records compiled for law enforcement purposes," or, stated another way, whether the documents containing deletions were generated as part of an investigation focused on "preventing, discovering or applying sanctions against noncompliance with federal statutes or regulations."
The appropriate test is whether the records indicate that the agency was gathering information with the good faith belief that the subject may violate or has violated federal law, or was merely monitoring the subject for purposes unrelated to enforcement of federal law.
Plaintiff concedes that the FBI's investigation between 1953 and 1955 was carried out pursuant to the FBI's law enforcement powers, as the documents relate directly to evidence-gathering for a possible perjury prosecution.
As to other documents in the Lamont file covering other periods, there is dispute. Defendant relies on the Smith Act
and the analogous provisions of the Subversive Activities Control Act ("SACA")
to justify the "law enforcement" nature of the FBI's investigation of Lamont from 1942 to 1953 and 1955 to 1972. Those statutes make it unlawful to organize or attempt to organize "any society, group, or assembly of persons who teach, advocate, or encourage the overthrow or destruction of any such government by force or violence; or (to become) a member of, or (to affiliate) with, any such society, group, or assembly of persons, knowing the purposes thereof."
The Bureau's information on Lamont in the 1940's can reasonably be read to suggest a basis for a claim of possible violation of the literal terms of the Smith Act, and one stated purpose of the FBI's efforts was to obtain evidence of alleged violation of the Act for purposes of a potential prosecution. While the investigation was closed at least twice due to lack of concrete evidence, the agency reopened it upon its pursuit of new leads designed to uncover such evidence. The investigation of Corliss Lamont from 1942 to 1953 was sufficiently related to the discovery of possible infractions of the Smith Act to bring the records of that period under the threshold requirement in Exemption 7.
What is less clear is the connection between law enforcement and the FBI's continued surveillance of Lamont from 1955 to 1972. Plaintiff was maintained on the Index only because of his association with various educational and political organizations which enforcement authorities suspected were Communist fronts, but there is nothing in the record now before the Court to indicate that the FBI conceived of this association as violative of the Smith Act or evidencing a possibility of future violation of that law.
Indeed, such a belief could hardly have been a "good faith" one in light of the Supreme Court's interpretation of the Act in the late 1950's and early 1960's. The Court authoritatively read the Smith Act (and the analogous provisions of the SACA) to allow prosecution only of those individuals who were active members of the Communist Party with the specific intent to advocate the forcible overthrow of the United States Government.
The Lamont file after 1955 contains no suggestion of such activity; and, in any event, the FBI's suspicions about Lamont's alleged association with the Communist Party are limited to his activities in the 1930's and 1940's, not the period after 1955.
Moreover, the information collected by the FBI after 1955 related primarily to Lamont's speeches, publications, and public activities precisely the sort of generalized monitoring and information-gathering that are not related to the Bureau's law enforcement duties.
On the present record, there appears no connection between the post-1955 surveillance of plaintiff and good-faith enforcement of the Smith Act. Defendant further claims, though, that the entire file on Lamont was related to law enforcement goals because it was part of the Security Index program; plaintiff counters that the Index was sanctioned by no federal statute and was a program unrelated to valid law enforcement efforts. The only statute mentioned by either party is the Emergency Detention Act, which allowed "(t)he detention of persons who there is reasonable ground to believe probably will commit or conspire with others to commit espionage or sabotage . . . in a time of internal security national emergency."
The problem with defendant's reliance on the Detention Act is that the FBI does not appear to have operated the Index program under the auspices or criteria of the Detention Act. The criteria for inclusion on the Index were far broader than those of the Detention Act;
in fact, when the statute was passed in 1950, the FBI found it "unworkable" and did not alter the Index program, which it had initiated in 1943.
Not only is there no mention in the Lamont file of the Detention Act, but after 1955 it is patently clear that it was Lamont's lecturing, writings, and financial contributions that concerned it.
The Court expresses no opinion as to the legality or wisdom of the Index, but in the instant case it cannot say that the generalized surveillance of Lamont due to his listing on the Index was related to the FBI's duties to enforce federal law. Thus the Court at this time must deny summary judgment based on Exemption 7 for documents generated after the close of the perjury investigation. This does not settle the matter completely. Recognizing that "the focus of domestic surveillance may be less precise than that directed against more conventional types of crime," the Court will entertain further proof, including in camera submissions, that the post-1955 surveillance was based on a law-enforcement objective.
Exemption 7 Subcategories
When Congress amended the FOIA in 1974, it intended to narrow Exemption 7's application so that the Government would be required to specify some harm in order to claim the exemption, because material "ought not be exempt merely because it can be categorized as an investigatory file compiled for law enforcement purposes."
Consequently, even though the Department has carried its burden of proving that certain records in the Lamont file were compiled for law enforcement purposes, to justify summary judgment for its deletions within those documents, it must also establish that each deletion falls within one of the six subcategories. The Government here argues that the release of data would "(C) constitute an unwarranted invasion of personal privacy, (D) disclose the identity of a confidential source," or "(E) disclose investigative techniques and procedures."
Defendant relies on Exemption 7(C) ("unwarranted invasion of personal privacy") to justify withholding the names of FBI agents, other governmental employees working on the Lamont investigation, third parties associated with plaintiff or cooperating in the investigation, and other subjects of FBI inquiry or suspicion, together with any information that might identify these individuals. Plaintiff's main argument is that disclosure of mere names and identifying information does not invade "personal privacy," which, according to his view, is only implicated where the information is of an "intimate" nature. The Court finds plaintiff's rather fine distinction unsupported by the case law
and agrees with defendant's position: Exemption 7(C) protects against the disclosure of the identity of individuals where such disclosure would likely cause embarrassment or harassment to the third party, either because sensitive, derogatory, or intimate personal information about him or her is contained in the file Or because the person's cooperation with an FBI investigation would itself prove embarrassing.
Exemption 7(C)"s protection of personal privacy is not an absolute one, for the exemption prevents disclosure only if the invasion is "unwarranted." To make this determination, courts weigh "the privacy interest and the extent of the invasion thereof against the public interest in disclosure . . . "tilt(ing) the balance in favor of disclosure.' "
Although plaintiff contends that knowing the precise identity of individuals who assisted in FBI investigations is "crucial" to a public assessment of the nature of the Bureau's domestic intelligence operations, most courts have disagreed and have balanced in favor of the privacy right. Thus it has consistently been held that Exemption 7(C) protects the names of FBI agents and other nonpolicy-making government officials associated with investigations,
for "public identification of any of these individuals could conceivably subject them to harassment and annoyance in the conduct of their official duties and in their private lives. While the right of privacy to these FBI agents is perhaps minimal . . . the public interest in the identification of the FBI agents who conducted the investigation of alleged civil rights violation (appears) to be even less."
Similarly, the exemption shields identities of third persons subject to FBI inquiries or cooperating in such investigations.
The Court grants summary judgment for defendant for the names excised pursuant to Exemption 7(C) in the file from 1942 to 1955. The deletions are supported by law and are verified by their size and context; that is, where the blacked-out portion is limited to space into which a name (and an address or occupation) would fit and where the context of the sentence indicates a name is mentioned (for example, deleted names of FBI agents are often preceded by "SA" or "special agent") the Court is satisfied that the exemption is properly invoked.
On the other hand, where the excised matter covers whole paragraphs or several lines more than is necessary to strike out a name and address the Court, in its discretion, directs that the material be submitted for in camera inspection. This relates mainly to information that defendant claims would identify the third persons or agents if disclosed. The Court finds the claim tenable as a matter of law
and grants the Department summary judgment for brief deletions of such information but desires to examine the material where the excisions are lengthy, so that withholdings will be limited to segregable exempt matter.
Finally, the Court's own examination of the documents and the context of the deleted names establishes that certain third-party names are not properly withheld names of Lamont's associates when they are not mentioned as sources of FBI information or in a derogatory context, as well as names of persons who participated prominently in events that are part of the public record. In these instances, there is virtually no privacy interest of third parties that is implicated, for disclosure to plaintiff of his acquaintances would presumably not cause embarrassment to them, and persons participating in public events should assume that their conduct will be reported. Accordingly, the Court orders the release of these third-party names to plaintiff.
The Government relies, next, on Exemption 7(D) ("identity of confidential sources") to justify deletions of the names of the FBI's confidential informants and other confidential sources, as well as data they furnished that might identify them. Plaintiff does not question the application of this exemption to names of informants but contests the claim of privilege for names of other sources by demanding a factual showing that those interviewees were actually given "an express or implied assurance of confidentiality." For an investigation that ranged over a period of thirty years, it is questionable, as a practical matter, how the Department could ever make such a showing. For this reason, courts have taken a "functional" approach to such claims and have denied disclosure of the names of interviewees and other sources where it was apparent that the agency's "investigatory function depends for its existence upon information supplied by individuals who in many cases would suffer severe detriment if their identities were known."
The Court finds here that the names of interviewees and other confidential sources have been omitted "in circumstances from which such an assurance (of confidentiality) could be reasonably inferred," that is, in the course of an investigation that must have appeared highly serious and sensitive to the persons interviewed.
Not only should the names of interviewees be withheld under Exemption 7(D) on the grounds that they could reasonably have assumed that their identities would not later be revealed, but the Court further holds that since disclosure of their cooperation might now be embarrassing to them, their identities are also protected by Exemption 7(C).
Citizens who feel they have a duty to respond to governmental investigatory inquiries, even though they may disagree or question its purpose, are entitled to protection; their cooperation should not be penalized by public exposure at a later time, when it may not meet with community approbation. Thus the Court sustains the Department's excision of names contained in the Lamont file for the period 1942 to 1955, where the size and context of the deletion make it clear that it is limited to the name, address and occupation of a confidential informant (often signaled by a symbol or appearing in lists) or an interviewee.
However, in those instances where the deletion embraces additional information that might include nonexempt matter, summary judgment will be denied pending inspection of such documents;
in conducting its in camera review the Court will, when in doubt, defer to the judgment of the Department and will sustain its claims of exemption where the context of the material bears out the assertion that it is confidential information furnished only by the confidential sources or might identify the source if revealed to plaintiff.
Exemption 7(E) precludes disclosure of "investigative techniques and procedures." While the Government has used this exemption "sparingly," its invocation in specific documents has not been clearly articulated in its affidavits. While it is true, as defendant contends, that the FBI's success depends in large part on secret methods and techniques, the conclusory affidavits give the Court no factual basis to rule that the withheld portions have not in fact been disclosed to the public heretofore. Since Congress did not intend that Exemption 7(E) apply to "routine techniques or procedures which are generally known outside the Government,"
the Court would order disclosure of matter already part of the public domain. Accordingly, the Court will conduct its own examination of the material withheld under this exemption.
Exemption 6: Private Matters
The finding by the Court that defendant has not yet established that the files from 1955 to 1972 qualify under Exemption 7 does not end the present inquiry. Although the Government basically relies on Exemption 7 in its deletions of names and identifying information contained in reports, some of the cases cited in the Government's memoranda refer to Exemption 6, which protects from disclosure "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy."
The Court will examine the applicability of Exemption 6 to the investigatory documents for which, as already indicated, no clear relation to "law enforcement purposes"
has been demonstrated. To grant summary judgment for deletions based on Exemption 6, the Court must find, first, that excised information is contained in "personnel," "medical," or "similar" files and, second, that its disclosure would constitute a "clearly unwarranted invasion of personal privacy."
Because the data are not contained in either personnel or medical files, the first issue is whether the information is contained in "similar" files. The test for that determination was suggested by the Supreme Court in Department of Air Force v. Rose,
which held that case summaries of cadet disciplinary proceedings fell under the exemption: "the disclosure of these summaries implicates similar privacy values" as would release of personnel files, because " "identification of disciplined cadets . . . could expose the formerly accused men to lifelong embarrassment, perhaps disgrace, as well as practical disabilities, such as loss of employment or friends.' "
The Court relied on a Third Circuit decision
which had argued that the "similar files" language should be interpreted broadly; the "crucial question" was whether disclosure would implicate privacy values. "The common denominator in "personnel and medical and similar files' is the Personal quality of information in the file."
Thus, FBI internal security records containing names and identifying information of private citizens and government employees are "similar files" insofar as the disclosure of personal identities would involve privacy interests of the sort Congress intended to protect.
As in Rose, the release of material might expose innocent persons to embarrassment, particularly as "the excesses of the internal security investigations in the 1950s should be sufficient to signal caution in dealing with unverified derogatory material within the files of an intelligence gathering agency of government."
Once it has been determined that the files may be protected by Exemption 6, the inquiry indicated by Rose is " "a balancing of interests between the protection of an individual's private affairs from unnecessary public scrutiny, and the preservation of the public's right to governmental information.' "
The Rose balancing test is similar to that followed by courts applying Exemption 7(C).
Thus the Department may withhold the names of third persons and government employees pursuant to Exemption 6 for the same reason it could do so pursuant to Exemption 7(C): the public interest in knowing their precise identities is minimal, while persons involved in or subject to the post-War hunt for alleged Communists have a privacy interest in nondisclosure.
Similar considerations apply to the names of informants and interviewees, whose expectations imply an even more weighty privacy interest. Moreover, the public interest would be little served by identifying such persons by name; to the contrary, a public harm might accrue, as "it is doubtful that many would be willing to give information at all if they could not be assured of such privacy."
Accordingly, for the purported "law enforcement" documents in the Lamont file after 1955, the Court grants defendant summary judgment under Exemption 6 for the names of FBI agents and governmental employees,
third parties suspected by the FBI or otherwise mentioned in the file,
informants, confidential sources, and interviewees,
once again to the extent that the size and context of the deletion clearly bear out the claim of exemption. Summary judgment is denied to defendant for other deletions covering more than the name and position of third parties or confidential sources, which materials shall be submitted to the Court.
Finally, the Court grants summary judgment to plaintiff for names of his associates where they are mentioned in a nonderogatory or public context.
In sum the Court sustains on the present record the Department's withholdings described in footnotes 36, 47, 70, 77, 93, 94, and 95 above; material referred to in footnotes 73 and 97 shall be turned over to Lamont.
As to the remainder, set forth in footnotes 44, 45, 46, 72, 78, 80, and 96, the Department is directed to submit unexpurgated versions to the Court for its private inspection within thirty days of this disposition;
plaintiff shall submit to the Court copies of the materials described on page 46 of its Memorandum objecting to the Magistrate's Report.