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DOHERTY v. UNITED STATES DOJ

October 30, 1984

JOSEPH PATRICK THOMAS DOHERTY, Plaintiff, against UNITED STATES DEPARTMENT OF JUSTICE, et al., Defendants.


The opinion of the court was delivered by: BRIEANT

MEMORANDUM AND ORDER

Brient, J.

 Plaintiff, Joseph Patrick Thomas Doherty, seeks to obtain certain records of the Federal Bureau of Investigation ("FBI") pursuant to the Freedom of Information Act ("FOIA"). This Court has subject matter jurisdiction pursuant to 5 U.S.C. § 552. The Government has moved pursuant to Rule 12, F.R.Civ.P. for an order dismissing this action, essentially for want of standing.

 The Government asserts, and this Court assumes that plaintiff is a 29 year old British subject from the Six Counties, who entered the United States on a false passport in the early part of 1982 and found employment, residing here until his arrest more than a year later. According to the Government Memorandum submitted in support of this motion, Mr. Doherty belonged first to a youth gang, and at age 17 joined the Provisional Wing of the Irish Republican Army in its fight for independence. The Government goes on to inform the Court that while so engaged, Mr. Dohertywas convicted for transporting explosives in a hijacked car. Released after serving five years in prison, Mr. Doherty was convicted of murder, sentenced to life imprisonment, escaped from prison and came to the United States as a fugitive. He is now resisting deportation and/or extradition. In a seven page description, Mr. Doherty is described in lurid detail as a terrorist, a liar, a smuggler of arms, an ambusher and a hostage-taker, who used a machine gun in a residential neighborhood, all apparently in what he regards as a fight for freedom and in support of a just cause. However, the Court is perplexed as to how these prior acts become relevant upon the construction of the FOIA or whether an undocumented resident alien may sue thereunder.

 In June, 1983, plaintiff was apprehended by the Immigration and Naturalization Service ("INS"). On July 5, 1983 plaintiff wrote to the FBI and requested documents "retrievable in a search for files listed under [his] name." Plaintiff's request was made pursuant to 5 U.S.C. §§ 552 and 552a of the FOIA and the Privacy Act of 1974.

 The Department of Justice denied plaintiff's request, asserting that its FBI records were exempt under 5 U.S.C. § 552(b)(7)(A), the subsection which protects from disclosure records compiled for law enforcement purposes, the production of which would interfere with enforcement proceedings. Upon administration appeal, the Department of Justice affirmed the decision to deny plaintiff access to the agency records on that ground. Having exhausted hisadministrative remedy, plaintiff filed his complaint on May 8, 1984.

 Rather that litigate the applicability of the claimed exemption from disclosure, the Government has chosen to move for dismissal of plaintiff's complaint under Rule 12(b)(1) and (b)(6). Its position is that the complaint fails to state a claim because an undocumented alien has no right to access to information under the FOIA. Thus the narrow issue presented to this Court is whether, under § 552(a)(4)(B), Doherty is able to sue at all.

 Since 1966, when Congress enacted the FOIA, the Act has been interpreted to require broad disclosure. Department of Air Force v. Rose, 425 U.S. 352, 360-62, 48 L. Ed. 2d 11, 96 S. Ct. 1592 (1976). The FOIA revised the public disclosure section of the Administrative Procedure Act, 5 U.S.C. § 1002, because Congress found that agencies were not disclosing sufficiently information which ought to be available to the public. S.Rep.No. 813, 89th Cong., 1st Sess. 3-4 (1965); H.R.Rep. No. 1497, 89th Cong., 2d Sess. 1-6, reprinted in 1966 U.S. Code Cong. & Adm. News 2418, 2418-22 [hereinafter cited as House Report].

 In order to achieve the goal of broad disclosure, the FOIA requires an agency to make information available unless it falls within one of the nine exemptions listed in § 552(b). NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 221, 57 L. Ed. 2d 159, 98 S. Ct. 2311 (1978). The list of exemptions is exclusive, 5 U.S.C. § 552(c), and the exemptions are to be narrowly construed. Title Guarantee Co. v. NLRB 534 F.2d 484, 488-89 (2d Cir. 1976). In sum, the basic policy of the Act is to promote public disclosure, not secrecy. Department of Air Force v. Rose, 425 U.S. at 361. Mindful of this Congressional purpose, this Court must consider the meaning of the statutory language defining who has a right to receive the Government's records, and who may complain to the district court when such access is denied.

 Section 552(a)(3) states that "each agency, upon any request for records which (A) reasonably describes such records and (B) is made in accordance with published rules stating the time, place, fees (if any), and procedures to be followed, shall make the records promptly available to any person" (emphasis added). Under established principles of statutory construction, this Court must first examine the language of the statute and give the statutory terms their ordinary meaning. "Absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive." Consumer Product Safety Commission v. GTE Sylvania, Inc., 447 U.S. 102, 108, 64 L. Ed. 2d 766, 100 S. Ct. 2051 (1980).

 Section 552(a)(3) by its terms applies to "any person." Likewise, §§ 552(a)(1) and 552(c) refer to "the public." Section 552(a)(4)(B), the judicial review section, refers to the "complainant." Nothing in the literal language of the statute suggests that disclosure depends upon the status as to citizenship or residency of the person requesting information. Nevertheless, the Government contends that the FOIA restricts judicial review to American citizens. Because the Government disputes the ordinary meaning of the statutory terms, the Court will consult the legislative history of the Act, although no ambiguity is perceived. Congress knows the difference between "persons" and "citizens." Both terms appear frequently in legislation and in the Constitution itself. They are different in meaning, and the difference is well known.

 One of the ways that Congress broadened the Government's disclosure obligations when it passed the FOIA was to eliminate at least one aspect of standing as a ground for resistance. Before 1966, the statute provided that records be made available to "persons properly and directly concerned except information held confidential for good cause found." House Report, 1966 U.S. Code & Adm. News at 2421, quoting § 3 of the Administrative Procedure Act. The FOIA eliminated the "properly and directly concerned" or "none of your business" test or defense, partly because it was "relied upon almost daily to withhold Government information from the public." Id. at 2422. Eliminating this test also served to shift any emphasis from who was making the request, to whether the records themselves ought to be public information. As one commentator explained the Act's new text:

 "The Act's sole concern is with what must be made public or not made public. The Act never provides for disclosure to some private parties and withholding from others. The main provision of section 3 says that information is to be made available "to the public" and the central provision of subsection (c) requires availability of records to "any person." [U]nder the Act, Uncle Sam's information is either made public or not made public.The Act never requires it to be protected from all except those who have a special need for it." Davis, The Information Act: A Preliminary Analysis, 34 U. Chi. L. Rev. 761, 765 (1967).

 In adding to the textual change making records available to any person, Congress in 1966 provided no restrictive definition of the term "person." Unlike the Privacy Act of 1974, which states that "the term "individual" means a citizen of the United States or an alien lawfully admitted for permanent residence," 5 U.S.C. § 552a(a)(2), the FOIA nowhere alters or limits the ordinary meaning of the term "person." Nor does the FOIA alter the earlier definitional section of the Administrative Procedure Act which states that a person is "an individual, partnership, corporation, association ...


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