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MALIZIA v. UNITED STATES DOJ

July 6, 1981

Ernest MALIZIA, Plaintiff,
v.
UNITED STATES DEPARTMENT OF JUSTICE, and Its Agents, Subordinates and Employees, Defendants



The opinion of the court was delivered by: WEINFELD

Plaintiff, Ernest Malizia, a/k/a Harry Luppes, appearing pro se, is currently incarcerated in the United States Penitentiary at Lewisburg, Pennsylvania. He was one of seven major international narcotics dealers who on September 22, 1974 escaped from the Federal House of Detention ("FHD") in New York City. *fn1" The jailbreak prompted an investigation by the Federal Bureau of Investigation ("FBI") to determine possible violations of various federal laws and to locate and apprehend the escaped prisoners, all of whom, according to an FBI report, were considered armed and extremely dangerous. The investigation into the jailbreak and related irregularities in the FHD included massive interviews with inmates, their attorneys and visitors, as well as guards and prison officials, and uncovered the complicity of several of these individuals. The escape was executed through the use of three duplicate keys that had been manufactured outside the FHD from wax molds crafted by accomplices inside the jail who had access to the original keys. The search for the escaped prisoners spanned various regions of the United States and several foreign countries. The crimes under investigation included conspiracy to escape, escape, assisting escape, escape assisted by a federal officer, harboring an escaped prisoner and obstruction of a criminal investigation. *fn2"

Malizia evaded the FBI for 21/2 years until his capture on February 4, 1977 at the Miami International Airport. Thereafter he pled guilty in United States District Court for the Southern District of New York to counts of bribery, conspiracy and escape, *fn3" and was sentenced to five years imprisonment on each count, to run concurrently with each other and consecutively to a ten-year sentence imposed in 1973 on drug charges. He is currently serving these sentences.

 After these convictions, plaintiff requested a copy of all records concerning him from the FBI and the Executive Office for United States Attorneys ("Executive Office") pursuant to the Freedom of Information Act ("FOIA") *fn4" and the Privacy Act. *fn5" A search of its files by the FBI yielded three so-called "main" files on Malizia: one on the investigation of his role in the escape; a second on the search for his whereabouts; and a third on the fugitive investigation of another of the seven escaped prisoners, Enrique Barrera, which contained substantial information on Malizia. The FBI's search for Barrera terminated after his body was recovered on July 6, 1976, dead of gunshot wounds, from the river Seine in Paris, France. *fn6" Although over 840 pages of the 104 documents contained in these files were released to Malizia, the FBI and the Drug Enforcement Administration ("DEA"), to which certain files had been referred, determined not to disclose the balance, which contained significant portions of these files, and their decision was all but completely upheld on administrative appeal.

 Malizia, in his request to the Executive Office, sought copies of all documents pertaining to him in the files of the United States Attorney's Offices, particularly in those offices for the Southern District of New York, the Southern District of Florida, and the District of New Jersey. The Executive Office's initial search of the indices of the systems of records in the District of New Jersey and the Southern District of Florida failed to reveal any material pertaining to the request, although later a file was found in the Southern District of Florida concerning Malizia's removal to the Southern District of New York following his arrest at the Miami International Airport. This file consisted of three pages that were released to Malizia in their entirety and four pages originating from the FBI that were processed as part of the other FBI files. The file of the United States Attorney's Office for the Southern District of New York contained material on Malizia, some of which was sent to the FBI and the DEA, from which it had originated, and the remainder of which was withheld in its entirety under claimed exemptions. After Malizia's administrative appeal, which resulted in a partial remand, fifty-one pages in this file were determined to be releasable, but five documents are still withheld in their entirety. The material sent to the FBI was found previously to have been made available to Malizia as part of the file at issue in this suit. *fn7"

 Malizia brought this suit to compel release of the undisclosed documents. Defendants now move for summary judgment on the basis of the Vaughn v. Rosen *fn8" affidavits submitted and without resort to in camera inspection. Malizia responds by requesting the Court in effect to examine the withheld material in camera. *fn9"

 Although § 552(a)(4)(B) provides in pertinent part that a district court "may examine the contents of ... 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," an in camera inspection is not automatic and is not required when the Government's affidavits and actions make a plausible case for exemption. *fn10" While this Court has not hesitated to make a detailed in camera inspection of voluminous documents covering a period of almost thirty years, *fn11" there is need for restraint when the agency makes an appropriate showing for exemption. An agency may sustain its burden of proof as to claimed exemptions by submission of affidavits that describe with reasonable specificity the nature of the documents at issue and the claimed justification for nondisclosure, and that indicate the requested material logically comes within the claimed exemption. *fn12" The mere possibility that "some bits of non-exempt material may be found among exempt material, even after a thorough agency evaluation," does not automatically trigger in camera inspection. *fn13" Only when the record is vague or the agency claims too sweeping or suggestive of bad faith should a district court conduct an in camera examination to look for segregable non-exempt matter. *fn14" Similarly, when it is clear from the record that an agency has not exempted whole documents merely because they contained some exempt material, in camera inspection is both unnecessary and unwise. *fn15"

 Upon its careful, line-by-line review of the Malizia files as redacted, the context of deleted or withheld material and the Vaughn affidavits setting forth the bases on which the information is asserted to be exempt, the Court is satisfied that defendants have fully sustained their burden of proof as to the claimed exemptions and accordingly grants defendants' motion for summary judgment.

 Exemption 1

 Under Exemption 1, defendants must establish that withhold 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 classified pursuant to Executive Order." *fn16" Under this exemption, defendants seek to withhold air-tels, teletypes, letters and memoranda transmitted between the FBI and various foreign liaison offices. The documents at issue are classified under Executive Order 12065, *fn17" which sets forth detailed procedural mandates for original 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," *fn18" 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." *fn19"

 An affidavit submitted by the FBI establishes that the procedures for agency review of classified documents were followed in this case. *fn20" Prior to their submission to the Court, the documents were re-examined by an FBI Special Agent, designated by the Attorney General of the United States as both an original Top Secret classification authority and a de-classification authority, who found that they continued to meet the prescribed classification requirements. *fn21" The material sought to be withheld under Exemption 1 has been classified either "Secret" or "Confidential," *fn22" and each such paragraph has been justified separately.

 All of the material claimed to fall under this exemption is said to concern "foreign government information." *fn23" "Foreign government information" is defined as "information that has been provided to the United States in confidence by, or produced by the United States pursuant to a written joint arrangement requiring confidentiality with, a foreign government or international organization of governments." *fn24" Unauthorized disclosure of foreign government information is presumed to cause at least identifiable damage to the national security. *fn25"

 Both types of foreign government information are included in the material here at issue. As for information claimed to originate from a foreign government, the majority of these documents on their face indicate they are international correspondence between FBI domestic headquarters and "legats" stationed in various foreign capitols. As already noted, the escapees from the FHD were suspected of having fled to foreign countries, a suspicion that was reaffirmed by the gruesome discovery of Barrera's body in Paris. Accordingly, there is no reason to doubt the statements of origin contained in the FBI affidavit.

 Defendants also seek to withhold under this Exemption information produced by the United States pursuant to a written joint arrangement with a foreign government or international organization of governments. These deleted portions are stated to contain information naming foreign countries, liaison links or the extent of a cooperative endeavor. The context of the deleted segments on international correspondence is consistent with the statements in the affidavits as to their subject matter. Indeed, one segment in Document 91, which was claimed to contain information produced pursuant to a written joint arrangement with a foreign government or international organization of foreign governments showing the extent of a cooperative endeavor but apparently was inadvertently released to Malizia, in fact describes action taken by the United States embassies in Chile and Argentina to apprehend Barrera, evidently in response to information produced by a foreign government. It is clear that, even without the presumption of identifiable damage to the national security that is accorded foreign government information, *fn26" disclosure of such cooperation with foreign agencies "could not only damage the (FBI's) ability to gather information but could also impair diplomatic relations." *fn27" Again, the Court finds no reason to disbelieve the affidavits submitted by defendants. To the contrary, the events surrounding the escape and the efforts by law enforcement agencies to apprehend plaintiff and others lend strong support to their credence. Summary judgment on these items thus is granted.

 Exemption 2

 Under Exemption 2, defendants seek to withhold the symbol numbers of informants and other information used to identify a source. Exemption 2 exempts from the FOIA's disclosure requirements information pertaining solely to "the internal personnel rules and practices of an agency." *fn28" This exemption applies to "routine matters" of "merely internal significance" in which the public lacks any substantial or legitimate interest. *fn29" If there is some public interest in information otherwise falling under this exemption, the information can be withheld only if necessary to prevent circumvention of agency regulations that would result if procedural manuals and guidelines were disclosed. *fn30" Courts have upheld under Exemption 2 the withholding of administrative markings such as file numbers, initials, signatures and mail routing stamps, as well as references to prior FBI communications regarding control of an investigation. *fn31"

 Many of the deletions claimed to consist of such administrative markings are limited to the space in which, for example, a source's identification number would fit and the context of the sentence suggests that a source name or symbol is mentioned, that is, these particular deletions often are followed by "advised that" and the substantive information ...


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