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April 22, 1991


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


Plaintiff Herman Ferguson ("Ferguson") moves to compel defendant Federal Bureau of Investigation ("FBI") to reprocess and eliminate redactions in his 1980 and 1989 requests for documents or, in the alternative, to prepare a second, more detailed index of material it claims is exempt from disclosure, under the Freedom of Information Act ("FOIA"). 5 U.S.C. § 552 et seq. The FBI moves for partial summary judgment pursuant to Fed.R.Civ.P. 56 and plaintiff cross moved pursuant to Fed.R.Civ.P. 56(f) for an order continuing or denying defendant's motion for summary judgment and directing defendant to submit to discovery.*fn1

By Order and Opinion dated December 18, 1990, 752 F. Supp. 634, the Court reserved decision on defendant's motion for partial summary judgment and on plaintiff's motions for discovery and to compel reprocessing of the document requests, pending in camera review of specified relevant documents, which were provided by the FBI in accordance with a list submitted by plaintiff as being redacted documents potentially of the most interest, together with an in camera affidavit of Joseph Smith providing a sample analysis of one document (31). In Camera Declaration of Joseph P. Smith, December 27, 1990 ("in camera Smith Declaration"). That review has been conducted. As a result, the Court denies defendant's motion for partial summary judgment.

The exemptions cited as supporting the redactions were too broadly applied to the documents without sufficient justification. Accordingly, there exist issues of fact as to whether defendant has adequately searched for and produced documents responsive to plaintiff's request, releasing reasonably segregable portions in accordance with the statute. Plaintiff's motions for another Vaughn index and to compel discovery are denied without prejudice to renewal after compliance with this decision has been completed. The Court orders the defendant to reprocess its document production and release without redactions the portions specified below and to produce, for in camera review, entirely unredacted copies of all its files produced to date. The Court suggests that because almost 23 years have elapsed since the plaintiff's conviction and because of the desirability of reducing public speculation about the conduct of the FBI in the 1960's, the Attorney General should consider whether the policy of waiving legal exemptions for withholding historic investigatory records over 15 years old, H.R.Conf.Rep. No. 93-1380, 93rd Cong., 2d Sess. (1974), 1974 U.S.Code Cong. & Admin.News p. 6267, reprinted in 120 Cong.Rec. 32597, 32600 (daily ed. September 25, 1974) (Conference Report on the Freedom of Information Act amendments), should not be applied to this FOIA request.


Plaintiff Ferguson was an educator and a leader in Black Nationalist politics in New York in the 1960's. In June of 1967, he and several acquaintances were arrested on various criminal charges related to their involvement with groups called the Revolutionary Action Movement ("RAM"), the Black Brotherhood Improvement Association ("BBIA") and the Jamaica Rifle and Pistol Club ("JRPC"). In the summer of 1968, Ferguson was convicted in New York Supreme Court, Queens County, with co-defendant Arthur Harris, of conspiracy to murder two other black leaders: Whitney M. Young, Jr. of the National Urban League ("Urban League") and Roy Wilkins of the National Association for the Advancement of Colored People ("NAACP"). Ferguson was sentenced to a prison term of 3 1/2 to 7 years. He was released on bond pending appeal. After hearing that his last appeal had been denied, Ferguson fled the country and lived as a fugitive for almost two decades. While a fugitive, Ferguson made an FOIA request in August 1980 for documents located at FBI headquarters which related to him; some documents were delivered in redacted form to plaintiff's attorney in January 1984. In 1989, Ferguson returned to New York and was arrested. He made another FOIA request in April 1989, seeking documents from files at FBI headquarters and the New York and Philadelphia field offices of the FBI. This action, which sought expedited processing of the files in view of the criminal proceeding against Ferguson, was commenced on July 26, 1989. On October 24, 1989, this Court ordered expedited processing of documents for the period 1963-70, within 85 days, and Vaughn indices for that period within 32 days thereafter. On January 31, 1990, the Court made a further order requiring a Vaughn index for the latter period. In June, 1990, Ferguson pleaded guilty in state court to jumping bail and was sentenced to one year in prison which he is serving concurrently with the original sentence on the conspiracy to murder charge.

Ferguson asserts that he was framed in the 1967-68 prosecution and that the FBI has in its possession either exculpatory material or material which would lead to exculpatory evidence. He alleges that during the 1968 trial and the subsequent appeals he was wrongfully deprived of the statements of witnesses against him, exculpatory evidence, and the names of informants against him, citing Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957) and People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881 (N.Y. 1961). The major witness against Ferguson and his co-defendant, Arthur Harris, at the 1968 trial was Edward Lee Howlette, an undercover New York City policeman attached to the New York City Police Department's Bureau of Special Services ("BOSS"), who infiltrated the group led by Ferguson and testified extensively about the conspiracy for which Ferguson and Harris were convicted.*fn2

In response to Ferguson's FOIA request, the FBI has searched for records by reviewing its general indices for cards bearing the name "Herman Benjamin Ferguson" (plaintiff's full name) and variations thereof. The search of FBI headquarters files located three main files and twenty four cross-references indexed to his name. Declaration of Regina M. Superneau, February 16, 1990 ("Superneau Declaration"), ¶¶ 13-14. The three main files are classified under numbers 88, 100 and 157. Classification 88 concerns fugitive investigations; classification 100 is described as "Internal Security" or "Security Matters"; classification 157 is described as "Civil Unrest", often paired, as is Ferguson's file, with a sub-caption of "Racial Matters." Id, ¶¶ 15-17. The cross-references include eleven "serials" from the FBI Headquarters "COINTELPRO" file*fn3 and fall into six investigative classifications: 88, 100, 157 (described above); 32 — "Identification"; 62 — "Miscellaneous," which consists of documents related to a general investigation of "Black Extremists-Racial Matters"; and 105 — "Internal Security or Security Matter." Superneau Declaration, ¶ 18.

Defendant seeks partial summary judgment with respect to the 1980 FOIA request and the 1989 FOIA request as to documents through 1970 on the ground that it has reasonably and adequately searched for and produced all the documents to which the plaintiff is entitled under FOIA in properly redacted form, taking into account the statutory exemptions from disclosure. Ferguson opposes the motion and seeks reprocessing or a more detailed Vaughn index. 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).

At the Court's direction, following oral argument, Ferguson's counsel submitted a list of 89 documents considered potentially most relevant to his claims, on October 16, 1990. On December 18, 1990 the Court ordered production of, and the FBI shortly thereafter produced, the 89 unredacted documents for the Court's in camera review, together with the redacted documents, each containing the number of each exemption applied by the FBI for redaction prior to release of the documents to plaintiff.*fn4


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 as a matter of law because, after sufficient time for discovery, the non-moving party has not made 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). Summary judgment is appropriate if the evidence offered demonstrates that "there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." 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 (2d Cir. 1985), cert. denied, 474 U.S. 829, 106 S.Ct. 91, 88 L.Ed.2d 74 (1985).

To compel discovery or reprocessing of a FOIA request, the Court must find that the FBI has failed to comply with its statutory mandate. Under FOIA, an agency seeking to withhold information in its files must show that it is entitled to withhold it under the specific exemptions listed in the statute, 5 U.S.C. § 552(b)(2)-(9), which are meant to prevent specific harms from the release of certain records. The burden is on the agency to justify nondisclosure and the exemptions must be interpreted to give effect to the strong Congressional intent of favoring disclosure under FOIA. The exemptions from disclosure must be narrowly construed. John Doe Agency v. John Doe Corp., 493 U.S. 146, 110 S.Ct. 471, 475, 107 L.Ed.2d 462 (1989); FBI v. Abramson, 456 U.S. 615, 102 S.Ct. 2054, 72 L.Ed.2d 376 (1982). See also, Donovan v. FBI, 806 F.2d 55, 58 (2d Cir. 1986).

I.  The applicability of 552(b)(7)

The most numerous of the exemptions claimed by the FBI are sub-categories of the (b)(7) statutory exemption which refers to investigatory records "compiled for law enforcement purposes." 5 U.S.C. § 552(b)(7). In the documents produced for in camera review, the redactions are almost entirely claimed under (b)(7); the only other exemptions asserted in these 89 documents fall under (b)(2), which covers material such as internal FBI symbols. Accordingly, the Court has reviewed only assertions of (b)(7) exemptions in determining whether the FBI is entitled to partial summary judgment. That portion of the statute provides that such records are exempt from disclosure,

  but only to the extent that the production of such
  records (A) could reasonably be expected to
  interfere with enforcement proceedings, (B) would
  deprive a person of a right to a fair trial or an
  impartial adjudication, (C) could reasonably be
  expected to constitute an unwarranted invasion of
  personal privacy, (D) could reasonably be expected
  to disclose the identity of a confidential source,
  including a State, local, or foreign agency or
  authority or any private institution which
  furnished information on a confidential basis,
  and, in the case of a record or information
  compiled by criminal law enforcement authority
  [sic] in the course of a criminal investigation or
  by an agency conducting a lawful national security
  intelligence investigation, information furnished
  by a confidential source, (E) would disclose
  techniques and procedures for law enforcement
  investigations or prosecutions, or would disclose
  guidelines for law enforcement investigations or
  prosecutions if such disclosure could reasonably
  be expected to risk circumvention of the law, or
  (F) could reasonably be expected to endanger the
  life or physical safety of any individual;
  Any reasonably segregable portion of a record
  shall be provided to any person requesting such
  record after deletion of the portions which are
  exempt under this subsection.

5 U.S.C. § 552(b)(7) et seq.*fn5 For exemptions under (b)(7) to apply, the records must have been compiled "for law enforcement purposes" and one of the specific exemptions under (b)(7) must also apply. Abramson, supra, 456 U.S. at 632, 102 S.Ct. at 2064. Subdivision (a)(4)(B) of 5 U.S.C. § 552 provides:

  On complaint, the district court of the United
  States . . . has jurisdiction to enjoin the agency
  from withholding agency records and to order the
  production of any agency records improperly
  withheld from the complainant. In such a case the
  court shall determine the matter de novo, and may
  examine the contents of such agency records in
  camera to determine whether such records or any
  part thereof shall be withheld under any of the
  exemptions set forth in subsection (b) of this
  section, and the burden is on the agency to
  sustain its action.

5 U.S.C. § 552(a)(4)(B). Subdivision (d) of 5 U.S.C. § 552 provides:

  This section does not authorize withholding of
  information or limit the availability of records
  to the public, except as specifically stated in
  this section. This section is not authority to
  withhold information from Congress.

5 U.S.C. § 552(d). The Supreme Court has repeatedly recited the purpose and principles of FOIA, which require "full disclosure unless information is exempted under clearly delineated statutory language." John Doe Agency, supra, 110 S.Ct. at 475 (quoting Dep't of Air Force v. Rose, 425 U.S. 352, 360-61, 96 S.Ct. 1592, 1598-99, 48 L.Ed.2d 11 (1976)).

  The basic purpose of FOIA is to ensure an informed
  citizenry, vital to the functioning of a
  democratic society, needed to check against
  corruption and to hold the government accountable
  to the governed.

110 S.Ct. at 475 (quoting NLRB v. Robbins, 437 U.S. 214, 242, 98 S.Ct. 2311, 2327, ...

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