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FERGUSON v. F.B.I.

January 31, 1990

HERMAN BENJAMIN FERGUSON, PLAINTIFF,
v.
FEDERAL BUREAU OF INVESTIGATION, DEFENDANT.



The opinion of the court was delivered by: Robert P. Patterson, Jr., District Judge.

On October 24, 1989, in Ferguson v. FBI, 722 F. Supp. 1137, 1145 (S.D.N.Y. 1989), the Court ordered that:

  (1) the Defendant's motion to extend the time required
      to respond to Plaintiff's  requests under the
      Freedom of Information Act [(FOIA)] is GRANTED IN
      PART AND DENIED IN PART;
  (2) the Plaintiff's motion for a preliminary injunction
      is GRANTED IN PART AND DENIED IN PART;
  (3) the Defendant, within 85 days of the receipt of
      this order, is to complete processing all documents
      from the 1963-1970 portion of Plaintiff's April
      1989 request for documents relating to himself;
      first, the Defendant shall process the January
      1965-October 1968 portion of these documents; after
      Defendant has prepared and served upon Plaintiff
      the January 1965-October 1968 portion of the April
      1989 request, Defendant is to commence processing
      the documents from the periods January 1963-December
      1965 and November 1968-December 1970.
  (4) the Defendant, within 32 days of the completion
      of its response to the 1963-1970 portion of the
      April 1989 request, is to prepare and serve upon
      Plaintiff a Vaughn index of the 1963-1970 portion
      of the documents produced pursuant to the 1980
      request.
  (5) the Defendant is to work diligently and in good
      faith to respond to the 1971-1989 portion of the
      April 1989 request for documents and to prepare
      a Vaughn index for the 1971-1980 portion of the
      documents produced pursuant to the 1980 request
      for documents.

Defendant on January 18, 1990 timely provided plaintiff with the 1963-1970 portion of the April 1989 request. Plaintiff has provided the Court with a copy of those records produced. Among these are documents containing redactions and certain documents are blacked out in their entirety. On January 25, 1990, plaintiff presented the Court with an order to show cause, requesting a hearing on why an order should not be issued:

  (1) sanctioning defendant for "its deliberate
      disobedience of this Court's Opinion and Order of
      October 24, 1989 and for arbitrarily and capriciously
      withholding documents responsive to plaintiff's
      FOIA requests";
  (2) requiring defendant to reprocess of the 1963-1970
      portion of the April 1989 request;
  (3) requiring defendant to produce a Vaughn index in
      120 days for the 1963-1970 portion of the April 1989
      request;
  (4) requiring defendant to produce for in camera
      inspection all documents responsive to the 1989
      request which were compiled from 1963 through
      July 1967.

Both parties appeared before the Court for oral argument and defendant has submitted a memorandum in response to plaintiff's papers and plaintiff has submitted a reply memorandum.

The intentions of Congress govern the Court's response to plaintiff's allegations that portions of those documents processed in the last three months were improperly redacted. Congress provided for a procedure to challenge "agency records improperly withheld" under ...


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