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LAROUCHE v. KELLEY

September 1, 1981

Lyndon H. LAROUCHE, Jr., et al., Plaintiffs,
v.
Clarence KELLEY, et al., Defendants



The opinion of the court was delivered by: LOWE

MEMORANDUM OPINION AND ORDER

The present and third pre-trial, written opinion in this protracted litigation is occasioned by the parties' cross-motions for partial summary judgment and by plaintiffs' motion in the alternative for in camera inspection of documents. The issue presented for resolution by the Court involves plaintiffs' alleged right under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, to disclosure of information withheld by the Federal Bureau of Investigation ("FBI") contained in documents and reports already released to them in part. At the request of plaintiffs, *fn1" the Court has undertaken an independent, in camera examination of the fourteen representative documents selected by plaintiffs *fn2" to ascertain the validity of the claimed exemptions from disclosure under the FOIA. On the basis of that considered review, the Court finds that the withholding of the particular items of information is authorized by the substantive criteria governing the exemptions asserted by the FBI. It further finds that the FBI observed the formal procedures mandated by the FOIA and the agency's own regulations in classifying and withholding the information. *fn3"

 HISTORY OF PROCEEDINGS

 This action was commenced on December 5, 1975. Plaintiffs alleged three causes of action: (1) disruptive and unconstitutional surveillance of plaintiffs, who include (a) Lyndon H. LaRouche, Chairman of the United States Labor Party ("USLP") and the National Caucus of Labor Committees ("NCLC"), (b) the USLP, an unincorporated political committee, (c) the NCLC, an unincorporated political association, and (d) 13 individual members and/or officers of the two political groups; (2) illegal refusal by defendants under the FOIA to furnish plaintiffs with the excised portions of the approximately 6000 pages of documents released by the FBI to the plaintiffs; *fn4" and (3) intent by the FBI to release to the public at large a number of documents relating to plaintiffs and allegedly containing harmful, slanderous, and fabricated information, in violation of the Privacy Act, 5 U.S.C. § 552a(b)(2).

 The subject of the FOIA-related cause of action, and the present cross-motions for partial summary judgment, is the information compiled by the FBI during its investigation of the NCLC, its members, and their various activities. *fn5" A first demand upon the FBI was made under the FOIA for files pertaining to the NCLC investigation and the present plaintiffs on October 29, 1975. *fn6" Pursuant to that request a first group of documents was released in April 1977, consisting of approximately 5300 pages of material. *fn7" An additional request was made on July 3, 1977. *fn8" By March 1978, approximately 7400 pages of documents from the NCLC files had been turned over to plaintiffs. *fn9" However, the FBI deleted certain information from many of the documents it released, claiming various exemptions to disclosure under the FOIA. *fn10"

 Because the requested documents were not released in full, plaintiffs demanded a detailed index and itemization of the documents involved, the exemptions claimed by the FBI for the deleted material, and the classification procedure/standards observed. In response, defendants submitted several Vaughn affidavits. *fn11" See Affidavit of David G. Binney, Special Agent of the FBI, dated March 29, 1978; Second Affidavit of David G. Binney, dated August 25, 1978; Affidavit of Robert D. Shea, Special Agent of the FBI Assigned to Document Classification and Review Section, dated August 28, 1978; Second Affidavit of Robert D. Shea, dated November 6, 1978; Third Affidavit of David G. Binney, dated November 6, 1978; Fourth Affidavit of David G. Binney, dated September 20, 1979; and Affidavit of Peter W. Kellen, Special Agent of the FBI, dated June 17, 1980. On the basis of those affidavits, defendants have contested plaintiffs' motion for partial summary judgment and have cross-moved for partial summary judgment.

 Approximately one year after this lawsuit was initiated, Judge Owen, then presiding Judge, issued an opinion addressing a number of plaintiffs' substantive claims and defendants' affirmative defenses. See LaRouche v. Kelley, No. 75-6010, Memorandum and Order (S.D.N.Y. February 15, 1977). Judge Owen granted defendants' motion to dismiss defendant FBI on the ground that Congress had not provided authority to sue that agency. Memorandum and Order at 4. He denied plaintiffs' request for expedited treatment of their FOIA claims as moot and speculative. Id. at 8. He denied plaintiffs' motion for preliminary injunction on the basis of the defendants' consent " "not to interfere with petitions and with normal electoral processes,' at the time or in the future...." (citation omitted) Id. at 10. Plaintiffs' request for injunctive or declaratory relief for alleged violation of their constitutional rights was denied because the claims did not present a justiciable controversy. Judge Owen found no objective "chill" of First Amendment rights, or threatened, future objective harm. *fn12" Id. at 11-12.

 On February 28, 1979 the parties entered into a stipulation providing:

 
1. Defendants and the Federal Bureau of Investigation ("the FBI') are enjoined from releasing to requesters under the Freedom of Information Act or the Privacy Act, and from making available to the public generally, other than plaintiffs herein, any of the documents in their possession ... production of which has been requested by plaintiffs herein pursuant to the Freedom of Information Act
 
....

 That stipulation was the outgrowth of an Order to Show Cause proceeding instituted by plaintiffs to enjoin the FBI from making available to the general public records from the FBI files relating to the NCLC or USLP, which files were allegedly slanderous or otherwise harmful.

 Finally, in February of this year, the Court issued a second decision addressing various motions then pending. In that opinion, the Court dismissed defendants Levi and Kelley in their individual capacities for lack of personal jurisdiction. *fn13" It denied defendants' motion to dismiss the First Amendment claims, holding that those claims were not moot. *fn14" Finally, the Court denied the cross-motions for summary judgment, agreeing to conduct the in camera inspection that is the subject of the present decision.

 DISCUSSION

 I.

 INTRODUCTION

 In the course of its review of the fourteen documents, the withheld information, and the asserted exemptions permitting non-disclosure of that information, the Court has been mindful of several well-established precepts. First, the general philosophy of the FOIA is full agency disclosure. GTE Sylvania, Inc. v. Consumers Union of the United States, Inc., 445 U.S. 375, 385, 100 S. Ct. 1194, 1200, 63 L. Ed. 2d 467 (1980).

 
Without question, the Act is broadly conceived. It seeks to permit access to official information long shielded unnecessarily from public view and attempts to create a judicially enforceable public right to secure such information from possibly unwilling official hands.

 Environmental Protection Agency v. Mink, 410 U.S. 73, 80, 93 S. Ct. 827, 832, 35 L. Ed. 2d 119 (1973). See also GTE Sylvania, Inc. v. Consumers Union of the United States, Inc., 445 U.S. at 385-86, 100 S. Ct. at 1200-1201; Department of the Air Force v. Rose, 425 U.S. 352, 361, 96 S. Ct. 1592, 1599, 48 L. Ed. 2d 11 (1976); Fund for Constitutional Government v. National Archives and Records Service, 211 U.S. App. D.C. 267, 656 F.2d 856, at 862 (D.C.Cir. 1981).

 Second, within the FOIA, nine exemptions are expressly created permitting the Executive to withhold information from the public. However, these exemptions are limited and must be narrowly construed. *fn15" The burden is on the Government to sustain the claimed exemption. *fn16" Finally, the FOIA requires that the Court determine disputes arising out of an agency withholding of information de novo. *fn17" 5 U.S.C. § 552(a)(4). In the particular case at hand, unlike others, *fn18" the Court has had the benefit of reviewing the documents and deletions for itself. Therefore, although the Court will make reference to the Vaughn affidavits in its opinion, it has not relied on those affidavits alone in determining whether any of the nine exemptions aptly are invoked in this case. *fn19"

 II.

 DISPUTED DOCUMENTS

 A. Substantive Criteria

 The discussion of the Government's substantive FOIA claim *fn20" that the disputed materials were properly classified and withheld under the statutory exemptions is divided into three parts. The first discusses FOIA Exemption 1, 5 U.S.C. § 552(b)(1), as it has been asserted by the Government for each document. The second analyzes the exemptions claimed under FOIA Exemption 7(C), 5 U.S.C. § 552(b)(7)(C), for each document. The third section discusses FOIA Exemption 7(D) as it has been invoked by the Government for each of the 14 documents.

 1. Exemption 1

 The FOIA provides, in part:

 
(b) This section does not apply to matters that are
 
(1)(A) specifically authorized ... 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;
 
....

 5 U.S.C. § 552(b)(1). The present language was enacted in the 1974 Amendments to the FOIA. While specifically providing for de novo determination of contested records by the federal courts, including in camera examination, Congress expressly recognized at the time

 
that the Executive departments responsible for national defense and foreign policy matters have unique insights into what adverse affects might occur as a result of public disclosure of a particular classified record. Accordingly, the conferees expect that Federal courts, in making de novo determinations in section 552(b)(1) cases under the Freedom of Information law, will accord substantial weight to an agency's affidavit concerning the details of the classified status of the disputed record. (emphasis added)

 Conf.Rep. No. 93-1200, 93d Cong., 2d Sess. (1974), reprinted in (1974) U.S.Code Cong. & Ad.News 6290. *fn21" Examples cited by the conferees of information exempted under this category include restricted data, communication information, and intelligence sources and methods. Id.

 Because Exemption 1 incorporates criteria established by Executive Order as the test for exemption for reason of national defense or foreign policy, it is necessary to determine first the appropriate Executive Order to apply to the case at bar and second the substantive criteria set forth in that Order. The claimed exemptions in each of the 14 documents then must be measured against those standards.

 The question of "Which Order?" arises in this case because the documents were classified at the time when Executive Order No. 11652 *fn22" was in effect. That Order has since been superceded by Executive Order No. 12065, *fn23" which remains in effect at present.

 The very issue was put to and resolved by the Circuit Court of Appeals for the District of Columbia in Lesar v. United States Department of Justice, 204 U.S. App. D.C. 200, 636 F.2d 472 (D.C.Cir.1980). Based on its interpretation of Executive Order No. 12065 and its analysis of underlying policy considerations, the Court ruled:

 
The general principle espoused here, then, is that a reviewing court should assess classification under the Executive Order in force at the time the responsible official finally acts. (emphasis in original) ...

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