UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
August 12, 1983
MICHAEL DONOVAN, WILLIAM FORD, JAMES KAZEL and JUDY KEOGH, Plaintiffs,
FEDERAL BUREAU OF INVESTIGATION, Defendant
The opinion of the court was delivered by: SWEET
Plaintiffs in this action are next-of-kin of four American churchwomen -- Maureen Clarke, Jean Donovan, Ita Ford and Dorothy Kazel -- who were murdered in El Salvador on December 2, 1980. After exhausting their administrative remedies, plaintiffs brought this suit under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 et seq., to compel the disclosure of documents originated by the Federal Bureau of Investigation ("FBI")
in the course of its investigation into the murders. The parties have cross-moved for partial summary judgment pursuant to Rule 56 Fed.R.Civ.P. The narrow issue before the court on these motions is the applicability of the FOIA Exemption 7(A), 5 U.S.C. § 552(b)(7)(A).
The absence of authority on the subject and the sensitivity of any portion of the mosaic which makes up the relationship between the United States and El Salvador add significance to what is by the nature a difficult question. For the reasons set forth below, plaintiffs' motion is granted to the extent indicated herein and defendant's motion is denied.
According to the Government, in order to assist the investigative and prosecutive efforts undertaken by the government of El Salvador in connection with the murders of the four American women, the FBI provided investigative advice to the American Embassy officials and to responsible El Salvadoran authorities. The FBI has also provided, upon request, laboratory services and other technical assistance to the government of El Salvador.
Although a trial against those charged with the murders appears to be contemplated by the El Salvadoran government, this record does not indicate if and when such a trial will commence.
In response to plaintiffs' FOIA request, the FBI has concluded that plaintiffs seek the disclosure of approximately 180 documents (consisting of some 600 pages) which relate to the technical and other investigative assistance provided by the FBI to the El Salvadoran authorities. The documents include fingerprint examinations, ballistics tests, polygraph examinations and other laboratory examinations, as well as the results of interviews by the FBI in El Salvador and in the United States. In his first declaration, Douglass C. Ogden ("Ogden"), Special Agent of the FBI, has defined the generic categories of the documents which have been withheld, i.e., "teletypes", "airtels", "laboratory reports" and "letterhead memorandum", with little description of the contents of the documents. In a second declaration submitted after oral argument, Ogden sought to specify how release of the requested documents would interfere with the El Salvadoran proceedings.
A January 20, 1983 State Department telegram sent to plaintiffs indicates that the presiding judge of the trial in El Salvador and the Fiscal General (the Chief Prosecutor) reported that they had no objection to the plaintiffs obtaining the complete FBI test results. On or about January 6, 1983, counsel for plaintiffs and plaintiff William Ford traveled to El Salvador and met with the presiding judge and Fiscal General concerning the prosecution of the individuals responsible for the murders of the four churchwomen. In his affidavit, counsel for plaintiffs states that the Fiscal General advised him that his office neither possessed nor would seek to obtain any documents or physical evidence collected by the FBI relating to the killings. The Fiscal General also advised that under El Salvadoran law, only evidence obtained under the supervision of a judge within territorial limits of El Salvador may be introduced at trial. Consequently, the plaintiffs claim, the results of the FBI's ballistics tests, polygraph tests, fingerprint analyses and other technical studies prepared in the FBI's laboratory in Washington, D.C., are likely to be excluded from trial unless such tests can be reproduced in El Salvador. The Fiscal General informed counsel for plaintiffs that such reproduction would be virtually impossible.
In its papers and at oral argument, the Government took the position that only the El Salvadoran government "has the final word with respect to the officials' claimed non-objection to disclosure," and that the statements made by the presiding judge and Fiscal General were not dispositive. However, some time in the middle of June, 1983, the Assistant United States Attorney in this matter communicated to the court that the El Salvadoran government had informed the State Department that it did not oppose the release to one of the plaintiffs of certain material compiled by the FBI. At that time, the Government withdrew this motion. Several days later, the Assistant United States Attorney communicated that the FBI decided not to withdraw the motion and wanted to pursue its claim under Exemption 7(A). The court directed that the Government submit an affidavit clarifying the matter.
On July 5, 1983, a declaration of D. F. Martell ("Martell"), Special Agent of the FBI, was submitted. The declaration provides:
Recently, the FBI received a communication for the United States Department of State advising that the Government of El Salvador did not oppose the release of certain material compiled by the FBI. Specifically, the State Department advised that Dr. Mario Adalberto Rivera, the Attorney General of El Salvador, did not oppose the release of laboratory examinations and polygraph tests conducted by the FBI in the investigation into the deaths of the four churchwomen to William Ford, brother of Ita Ford, one of the churchwomen.
Since receipt of the aforementioned communication, consideration has been given by the FBI to withdrawal of its assertion of (b)(7)(A) and to the release of whatever material is not exempt under other provisions of the FOIA. As a result, the FBI believes clarification should be sought from Dr. Rivera regarding his lack of opposition to the release of this material to a relative of one of the slain churchwomen. The FBI believes Dr. Rivera should be queried as to whether or not he is aware that release to anyone, including the relatives of the four churchwomen, constitutes a general release under the FOIA and, consequently, requires the same information to be released to other individuals who have already requested it and to any making a subsequent similar request.
Further, if Dr. Rivera is not aware of this, then the FBI needs to know or he should advise what impact such a release would have on prospective enforcement proceedings. Therefore, at least until these concerns have been addressed by Dr. Rivera, exemption (b)(7)(A) will continue to be asserted.
The FBI did not state that Dr. Rivera would be "queried," nor has it indicated that Dr. Rivera has been "queried."
On July 26, 1983, counsel for plaintiffs submitted an affidavit in response to Martell's declaration. Counsel met with Dr. Rivera in El Salvador on July 6, 1983, and informed him of the FBI's desire to make certain that Dr. Rivera understood the implications of his consent to the release of the documents. Counsel states he was told by Dr. Rivera that he "has absolutely no objection to the release of the documents under any circumstances."
Under El Salvadoran law, plaintiffs are entitled to hire an attorney called an accusador particular to function as a type of adjunct prosecutor to represent their interests in the prosecution of the case. See 38 Record 112, 139 n.1 (March 1983). As a preliminary step toward this end, plaintiff William Ford submitted a "Declaration of an Injured Person" to the presiding judge, at the request of the Fiscal General, "to assist the court in bringing to justice all the individuals who are responsible for this crime."
The Freedom of Information Act sets forth a policy of broad disclosure of government documents in order "to ensure an informed citizenry, vital to the functioning of a democratic society." FBI v. Abramson, 456 U.S. 615, , 102 S. Ct. 2054, 2059, 72 L. Ed. 2d 376 (1982) (citing NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242, 57 L. Ed. 2d 159, 98 S. Ct. 2311 (1978); EPA v. Mink, 410 U.S. 73, 93 S. Ct. 827, 35 L. Ed. 2d 119 (1973)). In Abramson, the Supreme Court explained that although the FOIA favors broad disclosure, Congress, through Exemption 7, recognized that certain information is entitled to protection:
Congress realized that legitimate governmental and private interests could be harmed by release of certain types of information and provided nine specific exemptions under which disclosure could be refused. Here we are concerned with Exemption 7, which was intended to prevent premature disclosure of investigatory materials which might be used in a law enforcement action. This provision originally exempted "investigatory files compiled for law enforcement purposes except to the extent available by law to a private party." A sweeping interpretation given the exemption by some courts permitted the unlimited withholding of files merely by classifying them as investigatory files compiled for law enforcement purposes. As a result, the exemption underwent a major revision in 1974. As amended, Exemption 7 authorizes disclosure of law enforcement records unless the agency can demonstrate one of six specific harms.
456 U.S. at 621, 102 S. Ct. at 2059. Exemption 7 now protects:
investigatory records compiled for law enforcement purposes but only to the extent that production of such records would (A) interfere with enforcement proceedings, (B) deprive a person of a right to a fair trial or 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.
5 U.S.C. § 552(b)(7). Judicial review of an asserted Exemption 7 privilege requires a two-part inquiry: first, a requested document must be shown to have been an investigatory record "compiled for law enforcement purposes," and second, if so shown, the agency must demonstrate that release of the material would have one of the six results specified in the Act. FBI v. Abramson, supra, 456 U.S. at 622, 102 S. Ct. at 2059 (footnote omitted).
The current motions for partial summary judgment present a novel issue of law, namely whether Congress intended investigatory records "compiled for law enforcement purposes" to encompass investigatory records compiled for foreign law enforcement purposes.
Plaintiffs contend that the Government has failed to meet the first prong of the Exemption 7(A) test in that Exemption 7 applies only to federal law enforcement records, which plaintiffs define as records compiled by a federal agency for the purpose of investigating violations of federal law. Their argument is not unlike that made by plaintiff and rejected by the court in Wojtczak v. Department of Justice, 548 F. Supp. 143 (E.D.Pa. 1982), the only case cited by the parties which considers the applicability of Exemption 7 to law enforcement other than federal law enforcement.
In Wojtczak, plaintiff brought an action pursuant to the FOIA seeking to compel the disclosure of information withheld by the FBI in response to his request for all FBI documents pertaining to him. The documents contained results of laboratory tests which the FBI conducted at the request of local law enforcement authorities in connection with plaintiff's trial on state charges of rape. The FBI claimed that the documents were exempt under 5 U.S.C. § 552(b)(7)(D). Plaintiff argued that Exemption 7 applies only to investigatory records compiled for federal law enforcement, and not to records pertaining to state law enforcement activity. Id. at 145. The court held that nothing in Exemption 7 caselaw, the language of Exemption 7 or the legislative history of Exemption 7 limits its scope to federal law enforcement. Id. at 147-48. The analysis employed in Wojtczak is useful in this case.
In support of their argument that Exemption 7 covers only records compiled for the purpose of enforcing federal law, plaintiffs cite several cases. See, e.g., Pratt v. Webster, 218 U.S. App. D.C. 17, 673 F.2d 408, 420 (D.C.Cir. 1982) ("the agency's investigatory activities must be related to the enforcement of federal laws . . ."); Church of Scientology v. Department of the Army, 611 F.2d 738, 748 (9th Cir. 1979) ("an agency which has a clear law enforcement mandate, such as the FBI, need only establish a 'rational nexus' between enforcement of a federal law and the document for which an exemption is claimed"); Malizia v. Department of Justice, 519 F. Supp. 338, 347 (S.D.N.Y. 1981) (Weinfeld, J.) ("to meet this requirement an agency must demonstrate at least 'a colorable claim of a rational nexus' between activities being investigated and violations of federal laws"); Lamont v. Department of Justice, 475 F. Supp. 761, 773 (S.D.N.Y. 1979) (Weinfeld, J.) ("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"). However, all of these cases involved federal criminal investigations. None focused on the question of whether Exemption 7 applies to all law enforcement investigatory records contained in the files of federal agencies or whether it applies only to the law enforcement records concerning federal crimes. There is nothing in the reasoning of those decisions to indicate that the references to federal law enforcement in connection with Exemption 7 had to do with anything more than the fact that those cases involved federal law.
Similarly, with respect to Exemption 7 legislative history which is sparse indeed, see Campbell v. Department of Health & Human Services, 221 U.S. App. D.C. 1, 682 F.2d 256, 261 (D.C.Cir. 1982) (citing FBI v. Abramson, supra, U.S. at , 102 S. Ct. at 2065 (O'Connor, J., dissenting), the plaintiffs' citations do little more than show that Congress did not specifically address the question of foreign law enforcement. References to "crime rising in this country," House Committee on Government Operations and Senate Committee on the Judiciary, 94th Congress, 1st Session, Freedom of Information Act and Amendments of 1974 (P.L. 93-502) Source Book: Legislative History, Texts, and Other Documents, 479 (Jt. Comm. Print, 1975) (remarks of Sen. Clark) ("1975 Source Book "), and "fighting the growing menace of crime in America," 1975 Source Book at 406 (remarks of Sen. Hart), simply demonstrate that Congress' immediate concern was that disclosure under the FOIA had to be tempered by the need to fight crime in this country. The legislative history, however, is devoid of any message that Congress intended to limit "law enforcement" for Exemption 7 purposes to federal law enforcement in this country. Similarly, with respect to the Attorney General's Memorandum on the 1974 FOIA Amendments which provides that an agency should produce investigatory records except where the purpose for which the agency holds or uses the records "becomes substantially violation-oriented, i.e., becomes re-focused on preventing, discovering or applying sanctions against noncompliance with federal statutes or regulations," 1975 Source Book at 516, the memorandum does not indicate that the Attorney General at any time considered and offered an opinion on the issue currently before the court. Cf. Wojtczak v. Department of Justice, supra, 548 F. Supp. at 147 (Exemption 7's applicability to records involving FBI aid to local law enforcement agencies).
Turning to the plain language of the statute, Exemption 7(A) exempts from the FOIA disclosure "records compiled for law enforcement purposes" where disclosure would interfere with enforcement proceedings. The FOIA does not say "records compiled for federal law enforcement purposes," nor does it make any distinction between federal and foreign law enforcement. Cf. Wojtczak v. Department of Justice, supra, 548 F. Supp. at 147 (no distinction between federal and local law enforcement). Aware that "the notion that because the words of a statute are plain its meaning is also plain is merely pernicious oversimplification," United States v. Monia, 317 U.S. 424, 431, 87 L. Ed. 376, 63 S. Ct. 409 (1943) (Frankfurter, J., dissenting), it remains my duty "to find that interpretation which can most fairly be said to be imbedded in the statute, in the sense of being most harmonious with its scheme and the general purposes that Congress manifested." FBI v. Abramson, supra, 456 U.S. at 625, 102 S. Ct. at 2061 n.7 (quoting NLRB v. Lion Oil Co., 352 U.S. 282, 297, 1 L. Ed. 2d 331, 77 S. Ct. 330 (1957) (Frankfurter, J., concurring and dissenting).
In Scientology v. Department of Justice, 612 F.2d 417 (9th Cir. 1979), the Ninth Circuit noted that "words used in a statute are to be given their ordinary meaning in the absence of persuasive reasons to the contrary." Id. at 420 n.10 (citing Trans Alaska Pipeline cases, 436 U.S. 631, 98 S. Ct. 2053, 56 L. Ed. 2d 591 (1978); Banks v. Chicago Grain Trimmers, 390 U.S. 459, 20 L. Ed. 2d 30, 88 S. Ct. 1140 (1968)). The plaintiffs have not set forth any persuasive reasons for not giving the language of Exemption 7 its plain meaning. Plaintiffs do suggest that under the construction of Exemption 7(A) adopted here, courts will be required to engage in the difficult tasks of first analyzing foreign law and then determining the extent that the release of certain documents would impede a foreign law enforcement proceeding. The presence of difficult issues is not, of course, sufficient to reject an interpretation that accords with congressional intent. Interpretation of foreign law, while frequently no easy task, is dealt with on occasion by federal courts. See, e.g., Corporation Venezolana de Fomento v. Vintero Sales Corporation, No. 76 Civ. 1671 (S.D.N.Y. 1982), aff'd, 712 F.2d 33 (2d Cir. 1983)(per curiam); Rule 44.1 Fed.R.Civ.P. The Government, of course, bears the burden of proving the applicability of a claimed exemption.
As explained by the FBI, because the victims were American citizens and because of the intense public reaction in the United States, our government became heavily involved in supporting the efforts of El Salvador to identify and bring to trial the perpetrators of those crimes. It is undisputed that the FBI investigation undertaken and lab tests performed which generated the documents requested by plaintiffs involve law enforcement, that is, the investigation and prosecution of the murder of four American churchwomen in El Salvador. In Wojtczak, the court found that the detrimental effect which disclosure of the records would have on the FBI's long-standing practice of assisting state and local police was a strong policy consideration supporting its interpretation of Exemption 7. See 548 F. Supp. at 147. An analogous consideration is equally strong here where FBI activities are undertaken in cooperation with other federal agencies and foreign law enforcement agencies, see note 3 supra. The FBI's aid to these authorities presumably benefits the United States both at home and abroad, particularly in a case such as this where the lives of Americans were taken abroad. The FBI does participate in law enforcement in other countries, and much of the information prepared for other federal agencies in connection with such law enforcement as well as for foreign law enforcement agencies is likely to contain sensitive information which might interfere with enforcement, information which the agencies and parties to the investigation would not want disclosed to the general public or the subjects of the investigations. See Wojtczak v. Department of Justice, supra, 548 F. Supp. at 148. Indeed, refusing to apply Exemption 7 to foreign law enforcement might have the practical effect of interfering with cooperation and information sharing between the United States and foreign law enforcement agencies. See Founding Church of Scientology of Washington, D.C. v. Levi, 579 F. Supp. 1060, slip op. at 6, 8 (D.D.C. 1982) (approving FBI's use of Exemption 7(D) to protect the identity of foreign, state and local law enforcement agencies and noting that release of confidential information could result in "reconsideration" of these agencies' willingness to exchange essential information).
Surely, "legitimate government and private interests could be harmed by release of certain types of information" held by the FBI concerning El Salvadoran law enforcement. See FBI v. Abramson, supra, U.S. at , 102 S. Ct. at 2059.
In sum, Congress made Exemption 7 applicable to all "records compiled for law enforcement purposes." There appears to be no instance in which the federal judiciary, legislature or executive has reflected upon Exemption 7's applicability to records involving FBI aid in foreign law enforcement and concluded that the exemption does not apply. Further, the plain language of the exemption compels the result reached here. And finally, strong policy considerations support this interpretation. Given the congressional concerns underlying Exemption 7, I decline to construe the scope of Exemption 7 as limited to federal law enforcement, a construction which in my view is unreasonable and without support.
This result is not inconsistent with "the oft-repeated caveat that the FOIA exemptions are to be narrowly construed." FBI v. Abramson, supra, U.S. at ; 102 S. Ct. at 2064 (citing Department of Air Force v. Rose, 425 U.S. 352, 361, 48 L. Ed. 2d 11, 96 S. Ct. 1592 (1976)). Like the Supreme Court in Abramson, I am "not asked in this case to expand Exemption 7 to agencies or material not envisioned by Congress." Id. The purpose of the FOIA is to serve disclosure of federal agency activity, not as a means for private parties to find out what facts or opinions foreign, state or local law enforcement agencies have collected or made on them or others. Church of Scientology v. Department of Justice, supra, 612 F.2d at 427 (citations omitted). Although the scope of Exemption 7(D) concerning the disclosure of confidential sources was at issue in Church of Scientology, the Ninth Circuit's discussion of statutory construction is helpful here:
While one may employ the general purpose of the act as justification to narrowly construe the exemptions where there is an absence of congressional intent on a particular area covered by one of the exemptions, one must remember that the congressional intent in enacting the exemption was to preserve, not destroy, confidentiality in certain necessary situations. Consequently to say, as appellant does here, that one's interpretation of the exemption is consistent with the general purpose of the FOIA is to ignore the congressional intent which caused and required the enactment of the exemptions in the first place.
Id. at 426. Similarly, to say here that plaintiffs' interpretation of the exemption is consistent with the general purpose of the FOIA is to ignore Congress' recognition of the necessity for exempting from disclosure the type of information created by the FBI in this case.
Having concluded that the first prong of Exemption 7(A) has been met, I turn to the second, whether the release of the requested documents will interfere with the El Salvadoran trial of those accused of the murder of the four American churchwomen. It is important to keep in mind that the amendment of Exemption 7 in 1974, enumerating six particular objectives of the exemption, see FBI v. Abramson, supra, U.S. at ; 102 S. Ct. at 2062, was designed to eliminate "blanket exemptions" for Government records simply because they were found in investigatory files compiled for law enforcement purposes. See id.; NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 236, 57 L. Ed. 2d 159, 98 S. Ct. 2311 (1978).
Although courts have held that the Government may carry its burden of proof under Exemption 7(A) with general rather than document-by-document responses to the request, see Campbell v. Department of Health and Human Services, 221 U.S. App. D.C. 1, 682 F.2d 256, 265 (D.C.Cir. 1982); Moorefield v. United States Secret Service, 611 F.2d 1021, 1023-24 (5th Cir. 1980), the Government's submissions "must demonstrate specifically how each document or category of documents, if disclosed, would interfere with the investigation." Campbell, supra, 682 F.2d at 265. In other words, to prevail, the Government "must show, by more than conclusory statement, how the particular kinds of investigatory records requested would interfere with a pending enforcement proceeding." Id. at 259.
There is an extra dimension to an analysis of whether the Government has met the second prong of exemption 7(A) in a case involving a foreign enforcement proceeding, a dimension nonexistent in a case involving a domestic enforcement proceeding. In the former case, since there is no federal enforcement proceeding over which the United States has control, the FBI is not automatically presumed to know how the proceeding will unravel -- who will be named as witnesses, what evidence will be introduced at trial, what strategy will be used, etc. The court may not so easily "determine the likely effect of disclosure in a common sense, generic manner," Peltier v. Department of Justice, No. 79-2722 slip op. at 18 (D.D.C. 1983) (quoting Copus v. Rougeau, 504 F. Supp. 534, 538-39 (D.D.C. 1980)), since the nature and scope of foreign enforcement proceedings are not as readily apparent or ascertainable as are those of domestic enforcement proceedings, for instance, of a hearing and investigation conducted by the National Labor Relations Board, see NLRB v. Robbins Tire & Rubber Co., supra. Although affidavits on personal knowledge from foreign authorities describing such proceedings and the risks of disclosure are not necessarily required or dispositive, they would certainly aid the court in its determination of whether the second prong of Exemption 7(A) has been met.
As indicated above, the FBI has submitted two declarations of Special Agent Ogden. The first defines the FBI's general categories of documents, i.e., "letter", "polygraph report", "photograph", without indicating which documents fall into each or providing any information about the documents themselves. Ogden goes little beyond summarizing the documents as representing "the entire gamut of cooperation between the FBI and the authorities investigating the murders of the four churchwomen in El Salvador, including the assistance provided and advice rendered by the FBI," and then asserting that premature release would interfere with the El Salvadoran prosecution. Under Exemption 7(A), federal courts may accept generic determinations that disclosure of particular types of records generally would interfere with the enforcement proceedings. Freedberg v. Department of the Navy, 581 F. Supp. 3, slip op. at 3 (D.D.C. 1982) (citing NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 234-35, 57 L. Ed. 2d 159, 98 S. Ct. 2311 (1978)). The FBI's categorization in Ogden's first declaration, however, is of little value since no effort is made to show just how, for instance, disclosure of "airtels" or "teletypes" would interfere with the proceedings. Thus, the FBI's generic categorization in and of itself fails to demonstrate how release of documents would interfere with the trial.
In response to the question raised at oral argument as to whether the FBI had met its burden of proof under Exemption 7(A) in setting forth in sufficient detail the requisite harm that would flow from the release of the requested documents, the Government submitted Ogden's second declaration. Ogden adds nothing factually to his first declaration but sets forth the following potential harms which may result from the premature release of the requested documents:
(A) the destruction or alteration of evidence;
(B) the identification of witnesses who possess information relative to the investigation and the possible harm to, or intimidation of those witnesses;
(C) the use of information released to establish fraudulent alibis to counteract evidence developed by investigators;
(D) the reluctance of sources of information released to continue providing accurate information without fear of discovery and/or reprisal; and
(E) the premature and untimely release of suspects, and dismissal of the case, due to massive pretrial publicity which would make a fair and impartial trial impossible.
Focusing on the potential harms from disclosure of only the documents relating to the laboratory reports, Ogden explains:
Among the material withheld are laboratory reports which include, inter alia, the results of ballistics tests, hair and fiber examinations, and fingerprint examinations. Clearly, an individual in possession of this information could use it to destroy or alter evidence, establish fraudulent alibis or counteract evidence developed by investigators. This is especially true of individuals who were heretofore not privy to the actual results of these investigations and who would attempt to thwart the investigation for sundry reasons. Assume, for example, a suspect was not aware that hair or fiber samples were located at the crime scene. Such results could be nullified by destruction of the material from which the fiber came, or fabrication of alibis to explain the presence of the hair or the fibers. The alibis could conceivably include explanations of prior meetings with the victims where the exchange of hair or fibers could have taken place, or other plausible explanations thereby attenuating the evidentiary value of the examinations. This reasoning is equally applicable to the results of the fingerprint examinations. An individual who was aware that his fingerprints were located at the crime scene could also develop alibis explaining away the presence of his fingerprints. The disclosure of the ballistics tests could also lead to destruction or alteration of evidence or the development of alibis regarding the location of the murder weapons on the day in question. These are all potential harms, but they are nonetheless real possibilities.
Also included among the material are polygraph reports. Polygraph examinations are used as investigative aids and are administered to both witnesses and subjects of an investigation. In the instant case, regardless of who was polygraphed, the disclosure of the results of a polygraph examination would clearly have a deleterious affect on prospective enforcement proceedings. Were the results known, it could lead to intimidation of witnesses and possible suspects in the investigation.
As indicated above, the FBI addressed primarily the potential effects of the premature release of the lab reports which include, inter alia, the results of ballistics tests, hair, fiber, and fingerprint examinations and polygraph reports, and photographs of evidentiary items used as aids in conducting the lab exams. There has been no offer by the Government to submit documents to the court for in camera inspection.
It is difficult on this record to reconcile the FBI's claim of interference with the position apparently taken by the El Salvadoran government that it has no objection to the release of laboratory examinations and polygraph tests conducted by the FBI. One must presume that the El Salvadoran government is best able to evaluate the potential harms that would flow from the release of these documents, and it is difficult to assess the role of plaintiffs' accusador particular with respect to his use of the requested information.
The applicability of Exemption 7(A) is not, of course, governed by what a foreign sovereign says or does, but rather by a demonstration that release of the requested document would interfere with a law enforcement proceeding, in this instance, in El Salvador. However, the Government has not come forth with any evidence to rebut plaintiffs' assertion that the El Salvadoran government has "absolutely no objection to the release of the documents under any circumstances." Granted, this particular assertion is hearsay, but given the prior communications from the government and its officials on this subject, in the absence of any response from the Government, it is the only direct evidence on the subject. Although Ogden's second declaration better identifies the harms that would flow from disclosure of the documents pertaining to the lab reports and polygraph tests, the Government's silence or inaction with respect to the El Salvadoran government's view on this subject diminishes the strength of the declaration considerably. In sum, on this record the Government's conclusory assertion that "the very nature of the records at issue in this case makes clear that their release . . . would of necessity 'interfere with enforcement proceedings'," is outweighed by the El Salvadoran government's nonobjection to disclosure.
Similarly, with respect to plaintiffs' claim that certain items will be inadmissible at trial, while nothing in Exemption 7(A) suggests that the FBI must demonstrate that withheld test and lab results are admissible in the El Salvadoran proceeding, the Government is not relieved of its burden of showing how their disclosure would interfere with the El Salvadoran proceeding by a blanket assertion without specification or an explanation of the significance of such information to the prosecution.
For these reasons, I conclude that the Government has failed to meet its burden of proof on the second prong of Exemption 7(A) with respect to the release of the lab exams and polygraph tests. Although the FBI may ultimately be successful in claiming some other exemption, this particular exemption is inapplicable to these particular documents.
Parenthetically, on the subject of delay, although the eventual trial of those accused of the murder of the four churchwomen appears to be contemplated at this time, it is worth noting that Exemption 7(A) cannot justify withholding unless the material withheld relates to a "'concrete prospective law enforcement proceeding.'" Carson v. Department of Justice, 203 U.S. App. D.C. 426, 631 F.2d 1008, 1018 (D.C.Cir. 1980) (citing remarks of Sen. Hart, quoted in NLRB v. Robbins Tire & Rubber Co., supra, 437 U.S. at 232). Given the continuous delays in the trial of murders which took place over two and a half years ago, and given the ongoing violence and political turbulence in El Salvador, there is certainly some question as to when, if ever, the trial will take place.
Turning to the other documents, I decline to determine the applicability of Exemption 7(A) at this time. Except for the lab reports and polygraph tests discussed above, it is simply unclear what substantive categories of information the FBI is claiming as exempt. There are scattered references in the Government's papers to documents alleged to concern contacts by FBI representatives in El Salvador with El Salvadoran authorities regarding the direction of the investigation and advice on how to proceed, to consideration of particular cooperating witnesses of investigative interest to El Salvadoran authorities, and to confidential interviews conducted in El Salvador and in the United States. The Government has not clarified whether these substantive areas encompass all of the remaining documents after separating out those pertaining to the lab reports and polygraph tests. The Government has taken the position that "there is no reasonably segregable portion of any of the withheld material which can be released." In taking this position, the Government has made it difficult for the court to consider the documents which are separate and distinct from those pertaining to the lab reports and polygraph tests. As indicated above, the difficulty is compounded by the fact that the proceeding is a foreign one and the court cannot simply take judicial notice of how various documents might be used in or interfere with the prosecution. The best course to follow with respect to these remaining documents is to consider all of the claimed exemptions at one time.
For the reasons stated, plaintiffs' motion for partial summary judgment is granted to the extent indicated herein, and defendant's motion is denied. A conference will be held in September to schedule further proceedings in this and related actions, see note 1, supra, particularly in light of the Vaughn index recently submitted by the State Department in connection with Donovan v. Department of State, 82 Civ. 4287 (S.D.N.Y. 1982).
IT IS SO ORDERED.