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DONOVAN v. FBI

January 6, 1986

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


The opinion of the court was delivered by: SWEET

SWEET, D.J.

Presently before the court as a result of a submission on September 20, 1985 is the motion of plaintiffs Michael Donovan, William Ford, James Kazel and Judy Keogh (the "Plaintiffs") for summary judgment and the cross-motion of defendant Federal Bureau of Investigation ("FBI") for similar relief. At issue is the adequacy of the FBI's 70-page affidavit sworn to April 30, 1985, drafted to meet the indexing requirements set out in Vaughn v. Rosen, 157 U.S. App. D.C. 340, 484 F.2d 820 (D.C.Cir.), cert. denied, 415 U.S. 977, 39 L. Ed. 2d 873, 94 S. Ct. 1564 (1974) (hereinafter "Vaughn affidavit"), with respect to the agency's documents relating to its investigation of the murder of Jean Donovan and three nuns in El Salvador on December 2, 1980. The Plaintiffs seek summary judgment to require an additional Vaughn affidavit. The FBI opposes the motion and also seeks summary judgment dismissing the complaint on the grounds that the withheld documents, or portions of documents, are authorized by the exemptions cited. The Plaintiffs' motion, although well-founded, is denied, and the documents at issue will be withheld or produced as set forth below as a consequence of the court's in camera review.

 This Freedom of Information Act ("FOIA") request relates to our government's concern and activity with respect to the murder of four American churchwomen in El Salvador in 1980. Files were maintained by the FBI which included material also maintained by the Department of State ("State"), the Department of Justice ("Justice"), the Central Ingelligence Intelligence Agency ("CIA"), the U.S. Customs Service ("Custom"), and the U.S. Marshal's Service ("Marshals"). The request has already been the subject of extensive litigation chronicled below. In addition, events have overtaken the request in some regards, because an investigation and rendered a report to the Secretary of State, The Churchwomen Murders: A Report to the Secretary of State and on May 25, 1984 five former Salvadoran guardsmen were convicted of the murder. Notwithstanding these and other events, a glance at the daily headlines and a reflection upon the anguish of the Plaintiffs establish that issues here presented possess great sensitivity and significance. In view of these special circumstances, the time has come to resolve these issues with a final disposition although in another case and at another time it would be appropriate to require an additional Vaughn index.

 Prior Proceedings

 The Plaintiffs served their first FOIA request on the FBI on March 11, 1982, and served a follow-up request on January 4, 1983. The FBI initially asserted that all documents in its ten volume, 2912 page file were exempt from disclosure under FOIA exemption 7(A) which protects investigatory records compiled for law enforcement purposes, the release of which would "interfere with enforcement proceedings."

 On February 8, 1984, this court, reconsidering its prior order of August 12, 1983 granting the Plaintiffs' partial summary judgment, held that exemption 7(A) protected all but 162 of the documents in the FBI's file. Nonetheless, this court held that the assertion of a blanket exemption for the entire file was inappropriate and that a Vaughn affidavit should have been prepared. Donovan v. FBI, 579 F. Supp. 1111, 1125-26 (S.D.N.Y. 1983). Both sides appealed this court's ruling to the Court of Appeals.

 While appeals were pending, five Salvadoran National Guardsmen were convicted in El Salvador of the churchwomen's murders. Shortly thereafter, the FBI informed the Court of Appeals and the Plaintiffs that it would no longer assert exemption 7(A) with respect to the churchwomen's file, and would re-process the ten volume file, asserting at that time any other FOIA exemptions it deemed applicable. The FBI completed its processing of documents on December 6, 1984.

 The release of the ten volumes to the Plaintiffs was completed on December 6, 1984. By letter dated February 8, 1985 the Plaintiffs requested defendant to prepare a Vaughn affidavit for all 34 documents that were withheld in their entirety, some 72 FBI documents that were withheld in their entirety, some 72 FBI documents that were withheld in part, 58 State Department documents that were withheld in part, and another 37 documents only if they related to the churchwomen's murder. Accordingly, on May 6, 1985, the FBI produced the Seventh Declaration of D. F. Martell, sworn to April 30, the Declaration of Sherry L. Davis, sworn to the same day, the 186-page Declaration of John Eaves, and the 12-page Declaration of Louis J. Dube, sworn to May 1, 1985. On July 31, 1985, the Plaintiffs filed the instant motion for an order requiring defendant to provide an additional Vaughn affidavit, limiting their application to 23 documents.

 All documents were numbered sequentially at the time of the initial motions, and the following are now at issue in connection with this motion:

 6,83,88,225,643,11,83 A,92,227,644 A&B,17 A,84,92 A,308,41,85,108,321,70,86, 222,470 A

 The FBI's treatment of 644 A & B as two documents will be adopted for the sake of convenience as demonstrated below.

 The Vaughn Affidavit

 The Vaughn affidavits are collated in the Martell affidavit which has four sections; I: Summary of Administrative and Judicial Proceedings, Paragraphs 6-15; II: Following Trial and Convictions Blanket (b)(7)(A) Exemption No Longer Was Applicable and the Churchwomen File was Reprocessed, Paragraphs 16-18; III: Explanation of Format Utilized for the Justification of Deleted Material, Paragraphs 19-24; and IV: Justification Categories: Exemptions Asserted: Rationale Descriptions of Deleted Materials - - (b)(1), (b)(3), (b)(5), (b)(6), (b)(7)(A), (b)(7)(C), (b)(7)(D), (b)(7)(E) and (b)(7)(F), Paragraphs 25-107. The documents were attached in deleted form as Exhibit B to the Martell Declaration and were submitted in camera in their original form.

 The FBI Vaughn affidavit thus provides the following information: a listing of the numerical designation of the documents derived from the initial analysis of the file, a list of the exemptions relied upon as cited in the act, a rationale or explanation of each of the cited exemptions and finally copies of the documents at issue with the cited section relied upon added at the deleted portion. The Plaintiffs refer to these designations as "coded symbols." In some of the rationale sections (IV referred to above), certain of the numerically designated documents are referred to, but the affidavit as such does not contain a master listing describing the document at issue, a citation of the exemption relied upon and an explanation of the applicability of the exemption. The explanation of the applicability of the exemption is given in general terms, although in a number of instances the numerical designation of the document is given while in the explanation of other exemptions no particular documents are referred to. Of course, an examination of the document reveals the designation of the exemption relied upon but not the explanation.

 Both the Plaintiffs and the FBI cite the test for determining the adequacy of a Vaughn index that is set forth in Founding Church of Scientology v. Bell, 195 U.S. App. D.C. 363, 603 F.2d 945, 949 (D.C. Cir. 1979). The elements quoted are:

 (1) The index should be contained in one document; (2) The index must adequately describe each deletion ; and (3) The index must state the exemption claimed for each deletion and explain why the exemption is applicable to that deletion.

 These necessary elements have been widely accepted by the circuit courts and by the courts of this district. Osborn v. I.R.S., 754 F.2d 195, 196 (6th Cir. 1985); Davis v. CIA, 711 F.2d 858, 851 (8th Cir. 1983); Chilivis v. Securities and Exchange Commission, 673 F.2d 1205, 1208 n.9 (11th Cir. 1982); Holy Spirit Assn. v. U.S. Dept. of State, 526 F. Supp. 1022, 1025 (S.D.N.Y. 1981).

 The Plaintiff's launch two attacks on the adequacy of the Martell affidavit. The first is one of form, claiming that the affidavit fails to put the required elements in one place. The second attack claims that the explanations given are conclusory and not related with sufficient specificity to a particular document.

 The court in Powell v. United States Department of Justice, 584 F. Supp. 1508 (N.D.Cal. 1984) found an FBI affidavit striking similar to the one at issue here inadequate. It described that affidavit as follows:

 In fact, the FBI has presented no index at all. Instead, it has placed code symbols next to each deletion in the documents. These symbols correspond to a table which describes a category of information into which the deletion falls, and the affidavits of the Special Agents then supply generalized discussions of why a particular category of information is exempt. It appears that these discussions are broad enough to apply to any FOIA request, and they are in no way tied to the content of the specific deletions.

 Id. at 1513-14.

 Similarly, in Thorstad v. CIA, 494 F. Supp. 500 (S.D.N.Y. 1979), the Court found Vaughn affidavits insufficient where they failed to describe adequately the reason why the withheld information properly falls within the exemption. As the court noted with respect to one affidavit at issue: In a rather extreme example of the shortcomings of defendant's affidavits, the Conley affidavit devotes five pages to describing how the enclosure was classified and how its disclosure could affect national security, but without the slightest attempt to describe sufficiently the information contained in the document.

 Id. at 503.

 Presumably the form adopted by the FBI is the product of its experience and the exigencies of the demands placed upon the agency. However, the connective tissue between the document, the deletion or its description, the exemption and the explanation is missing, and in a number of instances the explanation is of such generality as to constitute in effect merely a repetition of the exemption rather than an explanation. Such an affidavit fails to fulfill the agency's responsibility under FOIA, a responsibility which must be carried out if the statute is to have its desired effect. Only after a careful review by the agency and the disclosure through a Vaughn affidavit can the adversarial procedure properly proceed and judicial de novo review properly be conducted with deference toward the agency's expertise. Indeed, the affidavit submitted by the FBI here seems motivated by the improper purposes which initially compelled the Vaughn court to require a more reasoned discussion of the withheld documents. As to the Vaughn opinion suggested:

 [S]ince the burden of determining the justifiability of a government claim of exemption currently falls on the court system there is an innate impetus that encourages agencies automatically to claim the broadest possible grounds for exemption for the greatest amount of information. Let the court decide. And the tactical ploy is, to the extent that the number of facts in dispute are increased, the efficiency of the court system involved in that dispute resolution will be decreased.

 It may well be that in instances of foreign government information for which an exemption is claimed pursuant to classification or national security information under Executive Order 12356, any explanation would compromise the exemption. If that is the explanation for the absence of an explanation, it should be so stated. However, it should be possible to state some explanation relating to the applicability of an exemption of a particular document in a ...


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