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KATZ v. DOJ

August 21, 1979

NATHAN KATZ, Plaintiff, against THE DEPARTMENT OF JUSTICE, Defendant.


The opinion of the court was delivered by: LOWE

MEMORANDUM OPINION AND ORDER

MARY JOHNSON LOWE, D.J.

 Plaintiff, Nathan Katz, brings this action pursuant to the provisions of the Freedom of Information Act (FOIA), 5 U.S.C. Section 552 (hereinafter, "the Act"), to compel disclosure of materials in possession of the Federal Bureau of Investigation (hereinafter, the "FBI").

 By letter of counsel dated August 15, 1975, plaintiff requested the Deputy Attorney General, Department of Justice, to make available the following materials pursuant to the Freedom of Information Act and the application regulations of the Department of Justice:

 All records containing information about Nathan Katz or referring the Mr. Katz in any way which are possessed by the FBI, including, but not limited to letters, memoranda, tape recordings, electronic surveillance logs and investigative reports.

 By letter dated May 18, 1976, the Director of the FBI denied plaintiff's request in part by withholding in their entirety an unspecified number of records and deleting portions of those records which were released. *fn1"

 By letter of counsel dated June 8, 1976, plaintiff appealed to the Attorney General from the decision of the FBI. By letter dated September 30, 1976, the Deputy Attorney General affirmed the action of the Director of the FBI.

 Plaintiff commenced this action on December 3, 1976. The complaint alleges that the FBI wrongfully refused to disclose the withheld records to plaintiff despite his entitlement to them under the Freedom of Information Act. The complaint prays that the defendant be ordered to produce the records in their entirety. The complaint also asks that plaintiff be awarded reasonable attorneys' fees and other litigation costs and disbursements as provided for in 5 U.S.C. Section 552(a)(4)(E). The Government contends that the withholdings and deletions were proper pursuant to the exemptions set out in Section 552 of the Act.

 On May 2, 1977, plaintiff served upon the Government extensive interrogatories seeking, inter alia, information concerning the nature of the documents withheld and the exemptions in the Act justifying such withholdings. At a conference before the Court (Conner, J.) on May 6, 1977, the Government furnished to plaintiff an affidavit of FBI Special Agent Edwin Yee, sworn to March 10, 1977 which set forth the administrative proceedings which preceded this action and the nature of each of the documents or portions there of withheld with the exemptions relied upon for the withholdings.

 On June 10, 1977 plaintiff, through his attorneys, notified the Government of his contentions concerning the necessity for additional responses to the interrogatories beyond the information supplied in the March 10, 1977 Yee affidavit. On August 19, 1977 the Government served upon the plaintiff its Answers and Objections to the interrogatories.

 At a conference on September 16, 1977 he Court (Conner, J.) directed that the Government re-examine its responses to plaintiff's interrogatories to determine whether additional information could be provided. On November 23, 1977 the Government served and filed Supplemental Answers and Objections to the Interrogatories in question.

 The Government has now moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. The Government contends that the Yee affidavit and the Government's Answers and Objections to plaintiff's interrogatories establish as a matter of law the absence of any dispute as to the withheld documents and deletions and establish the Government's entitlement to withhold the materials.

 The Government bases its refusal to provide the plaintiff with the disputed materials on three separate exemptions set out in Section 552(b) of Title 5. These are, respectively, Section 552(b)(2), Section 552(b)(7)(c), and Section 552(b)(7)(d).

 By order dated April 19, 1979, this Court exercised its discretion pursuant to 5 U.S.C. Section 552(a)(4)(b) and ordered the defendant to submit the disputed documents for in camera inspection.

 This Court has carefully examined a copy of each original document submitted in camera and has determined that some of the exemptions asserted by the Government were proper, and that some were not.

 The Freedom of Information Act places the burden on an agency to sustain its actions whenever it withholds information under any of the exemptions provided by Section 552(b). Flower v. Federal Bureau of Investigation, 448 F. Supp. 567 (N.D. Tex., 1978). Furthermore, these limited exemptions "do not obscure the basic policy that disclosure, not secrecy, is the dominant policy of the Act." Department of the Air Force v. Rose, 425 U.S. 352, 361, 48 L. Ed. 2d 11, 96 S. Ct. 1592 (1976). The Court has conducted its in camera inspection with these tenants in mind. Most of the documents in question and indeed most of the pages of each document contain more than one deletion; in some cases, the Government claims more than one exemption for a given deletion. In undertaking its in camera inspection, the Court has attempted to evaluate each exemption and to summarize its findings with respect to the deletion or withholdings made pursuant to that exemption.

 (b)(2)

 Exemption (b)(2) exempts from disclosure information "related solely to the internal personnel rules and practices of an agency." The materials for which this exemption was claimed consist largely of administrative notations relating to the internal processing of the materials in plaintiff's file. These notations consist of the initials of FBI personnel responsible for approving or handing the documents, administrative markings such as file numbers, date stamps, or markings for routing, indexing, retrieval or dissemination to FBI or other law enforcement offices and personnel. The Court has found that the descriptions provided of these deletions were accurate and that the deletions were properly made pursuant to the (b)(2) exemption.

 Various transmittal memoranda were also withheld. These documents which were sometimes withheld in their entirety contain administrative information with respect to other documents which were released. However, some of these memoranda also contain substantive information relating to plaintiff, and where that is the case, that information must be released. The information, which appears in the second and third columns of pages 10, 11, and 12 of Document 3 must be made available to plaintiff. *fn2"

 The Court is troubled by the Government's claimed exemption for "lead materials" - statements which indicate possible future investigative steps or approaches or suggested courses of action. Although the Government withheld various materials pursuant to the (b)(2) exemption on the ground that they constitute "lead materials" it has offered no specific legal authority to support this application of that exemption. Several federal courts have questioned or rejected the argument that "lead materials" should qualify for the (b)(2) exemption. See Ferguson v. Kelley, 448 F. Supp. 919, 925 (D, Ill., 1978); Day v. F.B.I., 76 Civ. 3209 (Unpubl. opinion) (S.D.N.Y., March 10, 1977, Knapp, J.).

 Although the Supreme Court has not yet had occasion to consider that precise issue, it has recently considered the general scope of the (b)(2) - exemption. In Department of the Air Force v. Rose, supra, the Court held that:

 [At] least where the situation is not one where disclosure may risk circumvention of agency regulation, Exemption 2 is not applicable to matters subject to... a genuine and significant public interest.... [The] general thrust of the exemption is simply to relieve agencies of the burden of assembling and maintaining for public ...


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