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DONOVAN v. FBI

August 12, 1983

MICHAEL DONOVAN, WILLIAM FORD, JAMES KAZEL and JUDY KEOGH, Plaintiffs,
v.
FEDERAL BUREAU OF INVESTIGATION, Defendant


Sweet, D.J.


The opinion of the court was delivered by: SWEET

SWEET, D.J.

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") *fn1" 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). *fn2" 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.

 Background

 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. *fn3" 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."

 Discussion

 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 ...


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