(through 1970) on the ground that it has properly searched for
and produced all the documents to which the plaintiff is
entitled under the FOIA, taking into account the statutory
exemptions from disclosure, in properly redacted form.
Ferguson opposes the motion, alleging bad faith and errors in
the FBI's processing of his requests, and seeks reprocessing or
a more detailed index indicating the nature of the information
redacted and the justification for redacting it. Plaintiff also
cross moves for a court order denying summary judgment and
directing the FBI to submit to discovery, arguing that his
ability to oppose summary judgment is hampered by his inability
to get information from the FBI. Fed.R.Civ.P. 56(f).
Pursuant to the oral argument on October 10, 1990, Ferguson
submitted a list of documents considered most relevant to his
claims, on October 16, 1990.
To grant a motion for summary judgment a court must find that
there is no genuine issue as to any material fact, and that the
moving party is entitled to judgment because, after sufficient
time for discovery, the non-movant has failed to make a
sufficient showing of an essential element of its case as to
which it has the burden of proof. Celotex Corp. v. Catrett,
477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). See also,
Anderson v. Liberty Lobby, 477 U.S. 242, 106 S.Ct. 2505, 91
L.Ed.2d 202 (1986). The burden rests on the moving party to
demonstrate the absence of a genuine issue of material fact,
Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26
L.Ed.2d 142 (1970), and the Court must view the facts in the
light most favorable to the non-moving party. Meiri v. Dacon,
759 F.2d 989, 997 (2nd Cir. 1985), cert. denied, 474 U.S. 829,
106 S.Ct. 91, 88 L.Ed.2d 74 (1985).
Defendant asserts that its affidavits and indices
sufficiently show that the FBI has fully complied with its
duties under the FOIA. The FOIA embodies a strong policy in
favor of disclosure to the public. John Doe Agency v. John Doe
Corporation, ___ U.S. ___, 110 S.Ct. 471, 107 L.Ed.2d 462
(1989), reh'g denied, ___ U.S. ___, 110 S.Ct. 884, 107 L.Ed.2d
966 (1990); Donovan v. FBI, 806 F.2d 55, 57 (2nd Cir. 1986).
"[W]hen the Government declines to disclose a document the
burden is upon the agency to prove de novo in trial court that
the information sought fits under one of the exemptions to the
FOIA." Vaughn v. Rosen, 484 F.2d 820, 823 (D.C. Cir. 1973),
cert. denied sub nom. Rosen v. Vaughn, 415 U.S. 977, 94 S.Ct.
1564, 39 L.Ed.2d 873 (1974). The FOIA is to be liberally
construed in favor of disclosure and its exemptions are to be
narrowly construed. Julian v. United States Dept. of Justice,
806 F.2d 1411 (9th Cir. 1986), aff'd sub nom. United States
Dept. of Justice v. Julian, 486 U.S. 1, 108 S.Ct. 1606, 100
L.Ed.2d 1 (1988).
The FOIA specifically provides that "the district court
. . . may examine the contents of such agency records in camera
to determine whether such records" are exempt from disclosure.
5 U.S.C. § 552(a)(4)(B) (1982). While it may be true that such
review is exceptional, "the propriety of such review is a
matter entrusted to the district court's discretion." Local 3,
I.B.E.W., AFL-CIO v. N.L.R.B., 845 F.2d 1177 (2d Cir. 1988). A
district court may consider several factors in deciding whether
in camera review is warranted, Donovan, 806 F.2d at 59,
including (a) judicial economy, (b) the conclusory nature of
the agency affidavits, (c) bad faith on the part of the agency,
(d) disputes concerning the contents of the documents, (e)
whether the agency requests an in camera inspection, and (f)
the strong public interest in disclosure. Id. See also, Allen
v. CIA, 636 F.2d 1287, 1298-99 (D.C. Cir. 1980).
Although plaintiff contests the sufficiency of the search and
asks for discovery on the adequacy of the search, he offers no
support for such a request. On the basis of evidence presently
before the Court, the declarations of Smith, Davis, Stricker
and Superneau, the Court finds that defendant has complied with
its obligations under FOIA to make a search of its files.
Weisberg v. United States Dep't of
Justice, 745 F.2d 1476 (D.C. Cir. 1984), reh'g denied,
763 F.2d 1436 (D.C. Cir. 1985); Meeropol v. Meese, 790 F.2d 942, 952-53,
956 (D.C. Cir. 1986).
Plaintiff also contests the exemptions from disclosure as
provided in 5 U.S.C. § 552(b). Plaintiff has attached ten
documents previously disclosed in Moore v. Levi, 75-6203 (MJL)
(S.D.N.Y.) and released with redactions to Ferguson. A
comparison of the two sets of released documents shows such
extensive redactions in defendant's FOIA production in this
case, utilizing exemptions (b)(6) and (b)(7), that some of
those documents are almost completely blacked out. In contrast,
with minor exceptions defendant disclosed those documents
almost in their entirety, including names of FBI personnel, in
Moore v. Levi.
Plaintiff also claims that Section 552(b) exemptions have
been used to withhold disclosable reports of public meetings
and information about public figures who are now deceased. He
asks for discovery with respect to defendant's reliance on
exemptions (b)(1), (b)(2), (b)(3), (b)(6) and (b)(7).
Defendant points to the propriety of each of the exemptions
and opposes such discovery. The scope of each relevant
Exemption (b)(1): secrecy in national defense and
foreign policy matters pursuant to executive
Exemption (b)(2): relating to internal personnel
rules and practices of an agency;
Exemption (b)(3): statutory exemptions (e.g.,
information received through grand jury
Exemption (b)(6): personnel files and medical
files involving personal privacy;
Exemption (b)(7): records compiled for law
enforcement purposes; but only to the extent that
such law enforcement records or information would
result in enumerated types of harm.
Under exemption (b)(7), defendant relies solely on three types
of harm: 1) information which under (b)(7)(C) could reasonably
be expected to constitute an unwarranted invasion of personal
privacy, e.g. information about FBI personnel; 2) information
which under (b)(7)(D) could reasonably be expected to disclose
the identity of a confidential source and 3) information which
under (b)(7)(E) would disclose an investigative technique
through portions of released records.
The tests relating to each of the exemptions give broad
discretion to the defendant in the application of those
exemptions. The Court is persuaded that discovery of defendant
by plaintiff as to the adequacy of defendant's reliance on the
exemptions would be an exercise in futility fraught with
refusals to answer based on the breadth of the exemptions
involved. It is true, however, that the affidavits submitted by
defendant are conclusory in nature as to the basis for applying
the exemptions, perhaps necessarily so in view of the enormous
number of documents involved.
The Court recognizes, in addition, that twenty-two years have
elapsed since the conviction of plaintiff for the crime for
which he is currently in prison; that the FBI internal document
cited by the Court in its Opinion of October 24, 1989 describes
non-investigative techniques involving prominent black
nationalist figures in the 1960's which are contrary to our
constitutional heritage; that plaintiff was a prominent black
nationalist figure in those years; and that among
African-American citizens in particular, as well as others,
there is a strong public interest in determining whether any
such non-investigative techniques were utilized in connection
with the prosecution of plaintiff.
Accordingly, in the interests of judicial economy and the
strong public interest in disclosure, as well as the conclusory
nature of the agency affidavits in applying the exemptions to
thousands of documents, the Court will conduct an in camera
review, not of the 3500 or more documents produced pursuant to
the 1980 and 1989 FOIA requests of plaintiff, but of those
documents contained in the October 16, 1990 submission of
plaintiff. "[A] finding of bad faith or contrary evidence is
not a prerequisite to an in camera review; a trial judge may
order such an inspection
`on the basis of an uneasiness, a doubt he wants satisfied
. . .'", Meeropol, 790 F.2d at 958 (quoting Ray v. Turner,
587 F.2d 1187, 1195 (D.C. Cir. 1978).
Decisions on defendant's motion for partial summary judgment
and plaintiff's motions for discovery and to compel
reprocessing of the document request are hereby reserved
pending the completion of the in camera review.
Defendant will produce for the Court's, review in camera the
documents identified in the October 16, 1990 submission on or
before December 27, 1990.
IT IS SO ORDERED.