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GABRIELLI v. UNITED STATES DOJ

August 29, 1984

Robert M. GABRIELLI, Plaintiff,
v.
UNITED STATES DEPARTMENT OF JUSTICE, Federal Bureau of Investigation, and William H. Webster, Director, Federal Bureau of Investigation, Defendants.



The opinion of the court was delivered by: MINER

MEMORANDUM-DECISION and ORDER

MINER, District Judge.

 I

 This action involves a disputed request for information under the Freedom of Information Act, 5 U.S.C. § 552 ("FOIA"). The action is brought pursuant to 5 U.S.C. § 552 and jurisdiction is predicated upon 5 U.S.C. § 552(a)(4)(B). *fn1" Before the Court are motions by all parties for summary judgment, Fed.R.Civ.P. 56(a), (b).

 II

 Plaintiff commenced this action on May 6, 1983, *fn2" seeking injunctive relief directing defendants to release to plaintiff the information subject to his FOIA request. The facts underlying that request and the present action are relatively simple.

 By letter dated March 3, 1982, plaintiff requested of the Federal Bureau of Investigation ("FBI") any records or other printed material pertaining to himself or his activities. On August 24, 1982, the FBI complied with plaintiff's request by releasing eight of the sixteen pages contained in its file on plaintiff. Redactions on five of the eight released pages were substantial. On August 27, 1982, plaintiff took an administrative appeal, see 5 U.S.C. § 552(a)(6)(A), of the limited disclosure provided. On November 17, 1982, the initial action by the FBI was affirmed in all respects.

 The apparent basis for plaintiff's original FOIA request is an interesting, though troubling, one. Plaintiff is and has been for the past eleven years, a police officer with the New Paltz, New York, Police Department. Although it is not clear whether plaintiff was aware of this prior to his FOIA request, a complaint charging civil rights violations had been lodged against plaintiff with the FBI in July of 1980. The complaint stemmed from an incident in which plaintiff was involved in his official police capacity. After a brief investigation, the FBI determined that the complaint was unfounded. The investigation that ensued as a result of the complaint, however, led to the FBI's accumulation of a thirteen page file on plaintiff. *fn3" While the FBI's investigation has long since ceased, and while the incident prompting it is now more than four years old, plaintiff's curiosity apparently has been piqued by the FBI's disclosure of some of its records. For whatever reasons, plaintiff now desires to uncoveer all the details of the complaint made against him.

 The parties are in complete agreement regarding the facts underlying the instant complaint. The issue to be resolved on these motions is whether the FBI "improperly withheld," 5 U.S.C. § 552(a)(4)(B), the information requested by plaintiff. The Court heard oral argument on both motions on May 4, 1984. Decision on the motions was reserved pending submission by defendants of unredacted copies of the requested materials for in camera review. 5 U.S.C. § 552(a)(4)(B). That submission was received in chambers on May 11, 1984, along with defendants' supplemental memorandum of law. Although afforded the opportunity, plaintiff declined to offer additional submissions.

 After careful review of the unredacted documents and thorough consideration of counsels' arguments, the Court is persuaded that defendants have met their burden of establishing the propriety of their non-disclosure, see 5 U.S.C. § 552(a)(4)(B), and summary judgment in their favor therefore is warranted.

 III

 At the outset, the Court must deal briefly with defendant William Webster's claim that, as an individual, he is not a proper party to this action. Specifically, defendant argues that under the FOIA, the jurisdiction of the district courts is limited to enjoining an "agency" from withholding records and to ordering production of agency records improperly withheld. See 5 U.S.C. § 552(a)(4)(B). In support of his contention, defendant relies on Morpurgo v. Board of Higher Education, 423 F. Supp. 704, 714 n. 26 (S.D.N.Y.1976), and Ott v. Levi, 419 F. Supp. 750, 751-52 (E.D. Mo.1976). The rule in this circuit, however, appears to be otherwise. Diamond v. Federal Bureau of Investigation, 532 F. Supp. 216, 220 (S.D.N.Y.1981), aff'd, 707 F.2d 75 (2d Cir.1983), cert. denied, 465 U.S. 1004, 104 S. Ct. 995, 79 L. Ed. 2d 228 (1984) (William Webster and other individuals retained as defendants); see also Hamlin v. Kelley, 433 F. Supp. 180, 181 (N.D.Ill.1977) ("so many cases under this statute have been sustained against heads of departments, units and agencies that their susceptibility to suit is well established"). Accordingly, this aspect of defendant's motion must be denied.

 The dispositive issue concerning both parties' motions revolves around the correctness of the defendants' position that the redacted material falls within two of the FOIA's disclosure exemptions. In particular, defendants rely on 5 U.S.C. §§ 552(b)(7)(C) and 552(b)(7)(D). These sections exempt from otherwise required disclosure

 investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would . . . (C) constitute a unwarranted invasion of personal privacy, [or] (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 ...


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