774 F. Supp. 815 (1991) | Cited 0 times | S.D. New York | September 13, 1991


The Federal Bureau of Investigation ("FBI") moves pursuant toRules 59 and 62 of the Federal Rules of Civil Procedure forreconsideration, clarification and a stay of this Court's priorOpinion and Order dated April 22, 1991 (familiarity with whichis presumed). The FBI had moved for partial summary judgment asto the sufficiency of its production of documents dated 1963-70which contained references to plaintiff Herman Ferguson("Ferguson"), which the FBI had produced in heavily redactedform based on its interpretation of the statutory exemptionscontained in the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552(as amended). After reviewing in camera an unredactedsample consisting of 89 documents, the Court denied the FBI'smotion for partial summary judgment, partially granted theplaintiff's motion for reprocessing as specified in thatOpinion, denied plaintiff's motions for another Vaughn indexand discovery, ordered the FBI to produce certain documents incamera to the Court as specified in that Opinion and Order, andordered it to release to plaintiff Herman Ferguson certaininformation from the 89 documents reviewed in camera by theCourt. Ferguson v. FBI, 762 F. Supp. 1082 (S.D.N.Y. 1991).

In response to the Court's order, the FBI submits a secondin camera declaration of Special Agent Joseph P. Smith and apublic declaration of Special Agent Smith, both dated May 6,1991, and makes the instant motions.

The Court notes that in its prior opinion, it suggested thatthe government ascertain whether the Attorney General wouldconsider applying in this case the Department of Justice policyenunciated in 1974, cited with approval in the legislativehistory, of waiving legal FOIA exemptions as to historicinvestigatory records over fifteen years old. 762 F. Supp. at1085. In response, the government submits the statement by FBISpecial Agent Smith,1 who states that he has "consultedwith personnel in the Office of Information and Privacy, towhom the Attorney General has delegated authority concerningFreedom of Information Act issues pursuant to 28 C.F.R. 0.23a,concerning a waiver of the exemptions . . ." Special AgentSmith states that "Richard L. Huff, Co-Director of the Officeof Information and Privacy has advised me that he hasdetermined that there is insufficient historical interest inthese records to warrant discretionary disclosure under 28C.F.R. 50.8." SecondDeclaration of Joseph P. Smith ("Second Smith Decl."), May 6,1991, ¶ 3.

28 C.F.R. 50.8, promulgated in 1984, represents a slightchange of the 1974 policy of the Department of Justice. Itprovides as follows:

(a) The Department of Justice recognizes that portions of certain investigatory files compiled by the Department for law enforcement purposes, although of significant historical interest, are nevertheless exempt from mandatory disclosure under the Freedom of Information Act, 5 U.S.C. § 552, as amended. In responding to requests pursuant to that Act, it is the general policy of the Department that such files that are more than fifteen years old and that are no longer substantially related to current law enforcement activities will be processed for disclosure subject to deletions to the minimum extent necessary to protect law enforcement efficiency, personal privacy, or other legitimate interests that would be implicated by the disclosure of such files.

28 C.F.R. 50.8.2 28 C.F.R. 50.8 states that,with respect to investigatory files over fifteenyears old and no longer substantially related tocurrent law enforcement activities, the generalpolicy of the Department is that they "will beprocessed for disclosure subject to deletions to theminimum extent necessary to protect law enforcementefficiency, personal privacy, or other legitimateinterests that would be implicated" by disclosure.The records in the files received here are well over15 years old and not claimed to be substantiallyrelated to current law enforcement activities. Thepolicy as enunciated is not stated to be conditionalon the making of a prior determination that therecords are of "sufficient" historical interest.Indeed, not only is the finding of "insufficienthistorical interest" not a ground for refusing toapply the stated governmental policy, it isimpossible to reconcile with this Court's ruling inDecember, 1990:

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.

Ferguson v. FBI, 752 F. Supp. 634, 637 (S.D.N.Y. 1990). Thecompelling public interest in governmental accountability andthe urgent need for public confidence in the justice ofcriminal convictions and the fairness of the judicial system(all at issue here), particularly among African-Americancitizens, are beyond dispute and would be well served by asfull a release as possible of the records compiled on Ferguson.The "significant historical interest" of these documents isevident in the many works of a historical nature which havebeen published on the subject of the FBI's role in Americanhistory and politics of the latter part of this century,3especially theFBI's response to political dissent, and in the voluminousFinal Report of the Senate's Select Committee to StudyGovernmental Operations With Respect to IntelligenceActivities, Senate Report No. 94-755, 94th Cong., 2d Sess.(1976) (the "Church Committee Report"), cited in Lamont v.Dep't of Justice, 475 F. Supp. 761, 765 n. 5 (S.D.N.Y. 1979).That Ferguson, a man in his seventies, is still alive and seeksthese documents in order collaterally to attack his convictionof criminal charges does not lessen their historicalsignificance, just as his sole personal need for disclosure maynot be relevant to whether or not there is a public interest indisclosure. Cf. Dep't of Justice v. Reporters Comm. for Freedomof the Press, 489 U.S. 749, 109 S.Ct. 1468, 1480-81, 103L.Ed.2d 774 (1989); United States Dep't of Justice v. Julian,486 U.S. 1, 14, 108 S.Ct. 1606, 1614, 100 L.Ed.2d 1 (1988);Dep't of the Air Force v. Rose, 425 U.S. 352, 372, 96 S.Ct.1592, 1604, 48 L.Ed.2d 11 (1976); NLRB v. Sears, Roebuck & Co.,421 U.S. 132, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975).

The United States Attorney is ordered to determine from theAssistant Attorney General in charge of the Office of LegalPolicy, or from the acting Attorney General, whether theAttorney General will exercise his discretion to waive, inwhole or in part, application of the exemptions to thedocuments here at issue, in view of their age, their lack ofrelationship to current law enforcement activities, and theCourt's earlier findings that they are of substantial publicinterest.

In connection with this determination, the Court brings tothe government's attention the decisions of the AppellateDivision, Second Department, which upheld plaintiff's 1968conviction by a panel divided 3 to 2 and the decision of theNew York Court of Appeals which upheld plaintiff's convictionin a 4 to 3 decision. The government's attention is called alsoto:

(1) the following portion of the Appellate Division'sdissenting opinion:

Later that day proof was adduced, over defense counsel's objection, that a prior list of people to be assassinated by RAM included Senator Robert Kennedy. . . . In our opinion it was seriously prejudicial error not to grant a mistrial and not to adjourn this trial until the fall. The shocking emotional impact of Senator Kennedy's assassination, the dramatic funeral service and the public mourning for his tragic end — all occurring while defendants were on trial for conspiring to assassinate two other prominent public figures — inevitably must have prejudiced the jurors against these defendants, particularly since Senator Kennedy himself was one of those originally marked for assassination by them. . . .

People v. Ferguson, 32 A.D.2d 936, 938-39, 302 N.Y.S.2d 950,953-54 (N.Y.A.D.2d Dep't 1969) (Benjamin and Martuscello, JJ.,dissenting) (emphasis added).

2) the following language in the Appellate Division'smajority opinion:

There is no disagreement on the part of the members of this court as to the admissibility of the testimony that Robert Kennedy's name was included on the assassination list. The evidence of the broader conspiracy bore on the motivation of the specific conspiracy with which defendants were charged . . .

People v. Ferguson, supra, 32 A.D.2d at 937, 302 N.Y.S.2d at951, aff'd, People v. Ferguson, 25 N.Y.2d 728, 307 N.Y.S.2d228, 255 N.E.2d 567 (1969).

3) the unredacted news articles in Exhibit 2 to the FirstSuperneau Decl., No. 3 of 8, Serials 23-37 of HQ 100-443173,and Exhibit 3, No. 4 of 16, Serials 211-300 of N Y 100-153704,containing reports that it was Howlette's trial testimony thatSenator Kennedy and President Johnson were assassinationtargets of Ferguson.

4) the redacted first paragraph of page 31 of Document 49 ofthe in camera production; and

5) the principles of justice expressed in Brady v. Maryland,373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), as well asGiglio v. United States, 405 U.S. 150, 153-54,92 S.Ct. 763, 765-66, 31 L.Ed.2d 104 (1972), Napue v. Illinois,360 U.S. 264, 269, 271, 79 S.Ct. 1173, 1177, 1178, 3 L.Ed.2d1217 (1959) and Roviaro v. United States, 353 U.S. 53, 77 S.Ct.623, 1 L.Ed.2d 639 (1957); see also, People v. Rosario, 9N Y2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881 (1961), cert.denied, 368 U.S. 866, 82 S.Ct. 117, 7 L.Ed.2d 64 (1961).

The United States Attorney is ordered to comply with thecourt order of April 22, 1991 by submitting a declaration bythe Assistant Attorney General for the Office of Legal Policyor from the acting Attorney General of their position on theapplication of this policy to the files at issue here. If therecords are deemed of "insufficient historical interest," theUnited States Attorney is ordered to state the basis for thatdetermination and its applicability to 28 C.F.R. 50.8. TheUnited States Attorney is ordered to submit this declaration tothe Court on this matter within ten days after the date ofentry of this Opinion and Order.

Finally, the Court notes that the government has not compliedwith the Court's prior order to produce to the Court, incamera, unredacted copies of the documents previously producedto the Court only in redacted form and to compile certain otherinformation to assist the Court's in camera review of thosedocuments. The motion for a stay, which has not been denied orgranted prior to the issuance of this opinion, was notaddressed to that aspect of the Court's order. The FOIA itselfprovides for in camera review by the District Court and thegovernment cannot claim irreparable harm to itself by providingthe materials necessary for the Court to carry out itsstatutory duty. The government is ordered to produce theunredacted documents for in camera review by September 20,1991. 5 U.S.C. § 552(a)(4)(G).


I. Motion for Clarification

The motion for clarification is denied. The FBI requests thatthe Court clarify its prior Opinion and Order "to provide thatno documents or information submitted by the FBI to the Courtin camera will be released by the Court directly or indirectlyto plaintiff, but rather in the event a release of documents orportions of documents is ordered by this Court, the documentssubmitted in camera will be returned to the FBI for release bythe FBI in accordance with such order." Defendant's MemorandumIn Support of Motion for Reconsideration, at 2.

The Opinion and Order of April 22, 1991 is clear as to thatthe Court will review in camera the documents to be produced inunredacted form to the Court. No suggestion of further Courtaction was made in the opinion of April 22, 1991.

The FBI complains that the Court has revealed that certainredacted records consist entirely of a copy of the supersededstate court indictments against Ferguson upon which he wasarraigned and copies of pamphlets in support of Ferguson whichapparently were handed out at public rallies, claiming thatthese too are "information" supplied by confidential sourcesand so exempt from disclosure, regardless of the fact that theyare either public records or documents which it is not arguedwould reveal the identity of a source. The purpose and languageof the statute do not allow for the government's interpretationnor has any binding judicial precedent been cited to the Courtto support this complaint of the FBI. In addition, thelegislative history of the FOIA also indicates that the Senatedecided that an amendment of the statute was unnecessary toprovide expressly that an agency is not obligated to copy"public records" such as "court records" and "newspaperclippings," which are in its files, but could choose either toidentify their presence to a requester or to supply copies ofthem. Hearings on the Freedom of Information Reform Act,Subcommittee on the Constitution, Senate Committee on theJudiciary, S.Hrg. No. 98-699, 98th Cong., 2d Sess., at 53-54(1983). The content of the hearings indicates that courtrecords and other public documents found in the files are notsubject to thelimited exemptions provided by the FOIA,4 which are to benarrowly construed, resolving doubts in favor of disclosure.Julian v. United States Dep't of Justice, 806 F.2d 1411 (9thCir. 1986), aff'd sub nom. United States Dep't of Justice v.Julian, 486 U.S. 1, 108 S.Ct. 1606, 100 L.Ed.2d 1 (1988); seealso, Donovan v. FBI, 806 F.2d 55, 58 (2d Cir. 1986).

Furthermore, a copy of the superseding indictment, whichincorporated the earlier, superseded charges, was released inthis proceeding to plaintiff in its entirety. Exhibit 2 to theFirst Superneau Declaration ("First Superneau Decl."), Number2 of 8, in HQ 100-443173. Some of the pamphlets mentioned bythe Court in its prior opinion were also previously released intheir entirety to plaintiff, such as pamphlets attached toDocuments 66 and 87 of the in camera production; similar publicflyers urging attendance at support rallies or contributions toa defense fund were also previously released in theirentirety.5 The fact that those documents have beenpreviously released creates doubt as to whether they or otherpamphlets should be withheld when they are found in otherfiles. FOIA requires the Court to resolve doubts in light ofthe strong public policy favoring disclosure. Accordingly, theFBI's complaints about the ordered disclosure are found to lackadequate foundation. Indeed, the reluctance to disclose suchdocuments which are clearly non-exempt and are reasonablysegregable raises the question of whether the FBI is making agood faith effort to comply with the FOIA.

II. Motion for Reconsideration

The motion for reconsideration of defendant's motion forpartial summary judgment is denied. The Court notes that itsprior decision denied the FBI's motion for partial summaryjudgment, on the ground that issues of fact existed as towhether the exemptions were properly applied. The governmenthas not raised any controlling decision or factual matter whichthe Court overlooked in its opinion of April 22, 1991. LocalCivil Rule 3(j). The FBI has still failed to meet its burden ofshowing that each of the many records produced in redacted formwas compiled for law enforcement purposes. "As amended,Exemption 7 requires the Government to demonstrate that arecord is 'compiled for law enforcement purposes' and thatdisclosure would effectuate one or more of the six specifiedharms. . . . These changes require consideration of the natureof each particular document as to which exemption was claimed."John Doe Agency v. John Doe Corp., 493 U.S. 146, 110 S.Ct. 471,477, 107 L.Ed.2d 462 (1989) (emphasis in original).6 TheCourt's reasoning has been adequatelystated in its prior opinion.7 The Court also ordered therelease of specific records contained in the limited number ofdocuments reviewed in camera. This opinion will revisit thatportion of the prior opinion.

III. The NYCPD and Edward Howlette

The government argues that the Court erred in ordering thedisclosure of records and information not otherwise exempted,which were supplied by the New York City Police Department orEdward Howlette, relevant to the testimony elicited atplaintiff's trial.8 It asserts that exemption (b)(7)(D)applies to all information supplied by a confidential source,whatever the content or risk of source identification, and thatthe subsequent disclosure of a source's identity andinformation in no way affects the exemption. The FBI has takenthe position that neither Howlette nor any electronicsurveillance or mail covers were themselves the FBIs'sources.9 Rather, the FBI argues, if the FBIs' source wasthe "state or local law enforcement agency" itself, passing oninformation it got from Howlette or non-human sources, the FBIis entitled to apply exemption (b)(7)(D) to all informationsupplied by the channelling source (the local agency), in spiteof Howlette's lengthy testimony and the fact that thegovernment concedes technical devices are not protected sourcesunder FOIA.

If the "protected" source of the surveillance information wasthe New York City Police Department ("NYCPD") itself, as seemslikely from the FBI's arguments, the government has not carriedits burden of convincing the Court that exemption (b)(7)(D)properly applies, as discussed in the prior opinion and below.

Here, Howlette testified at plaintiff's trial that he was anundercover New York City policeman who was assigned to theNYCPD's Bureau of Special Services ("BOSS"). The role of BOSSin the surveillance of Ferguson and RAM has already been widelydisclosed to plaintiff and the public10 and was apparentlytestified to by Howlette and others at Ferguson's trial in1968. 762 F. Supp. at 1098. On November 7, 1990, pursuant to theNew York State Freedom of Information Law, N.Y. Public OfficersL. §§ 84-90, the NYCPD released to Ferguson all the records inits possession relating to Ferguson, RAM and the Jamaica Rifleand Pistol Club, among others. Declaration of Joan P. Gibbs,May 15, 1991 ("Gibbs Decl."), ¶ 2.11 The documents are,with one or two minor exceptions, completely unredacted anddisclose throughout the names of individual police officers andtheir supervisors as well as the content of surveillingofficers' reports, names of third party sources and theinformation provided by the latter, and names of third partiesalso under surveillance. This undisputed assertion is deemed toconstitute a waiver by the NYCPD of the confidentiality of thatinformation.

The government has failed to explain to the Court why, inview of the NYCPD's own release of its files, the FBI continuesto claim that the NYCPD and BOSS still qualify as confidentialsources whose identities and information, unless otherwiseexempted, are exempt from disclosure under exemption (b)(7)(C)or (b)(7)(D) of the FOIA.12

As to Edward Howlette, the Court respectfully does not agreewith the authorities relied on by the government, Irons v. FBI,880 F.2d 1446 (1st Cir. 1989), and Kimberlin v. Dep't ofTreasury, 774 F.2d 204 (7th Cir. 1985). As was noted in Brettiv. Dep't of Justice, 1990 WL 84366, 1990 U.S. LEXIS 7514(N.D.N.Y. 1990), the law in the Second Circuit is that "theproper interpretation of the term 'confidential source'includes an informant who is promised or reasonably expectsconfidentiality unless and until the agency needs to call himas a witness at trial." United Technologies Corp. v. NLRB,777 F.2d 90, 94 (2d Cir. 1985) (emphasis added). "The privilegebelongs to the beneficiary of the promise of confidentialityand continues until he or she waives it." Id. at 96. In fact,based on United Technologies, the Court finds the Ironsdissent, 880 F.2d at 1457, as it interprets FOIA, morepersuasive than the majority opinion. Furthermore, the factspresented in Irons and Kimberlin are distinguishable fromthe present matter. None of the cases cited by the governmentis analogous to the facts of this situation. Here, theconfidential source is claimed to have been a local lawenforcement agency, but that agency has waived its right toconfidentiality by releasing its own reports. This caseinvolves an individual who testified at great length to thesame events on which he reported, which reports are now soughtunder the FOIA by the accused against whom he testified. Noneof the cases cited involved that kind of situation. At most,those cases hold that where confidential information isindependently revealed, as a result of independent revelations,or the requester comes to know that certain information hasbecome public through someone other than the confidentialsource, then the mere fact of that revelation or therequester's independent knowledge does not deprive theconfidential source of the protection of exemption(b)(7)(C) or (D).13 Irons, supra, at 1448; Kimberlin,supra, at 205-09. Here too, the plaintiff was the subject ofHowlette's testimony and the NYCPD and BOSS records. TheCourt's order of April 22, 1991 requires the FBI only todisclose to plaintiff information of which Howlette was theoriginal source, limited to the same investigation of Fergusonas to which Howlette testified at Ferguson's trial: i.e.,Howlette's infiltration of RAM and JRPC, what went on at themeetings, what were Ferguson's and Howlette's roles, thealleged violent plans and action of Ferguson and Harris, andthe alleged conspiracy to murder Young and Wilkins. Similarly,the Court is ordering the FBI to produce to plaintiffunredacted copies of records and information, of which theNYCPD or BOSS was the source, concerning Ferguson's involvementin these matters. 762 F. Supp. at 1096-98.

The Court's limited order of disclosure in its April 22, 1991opinion is consistent with the articulation of the AttorneyGeneral's 1975 Memorandum for implementation of the 1974Amendments.

Once it is determined that a request pertains to 'investigatory records compiled for law enforcement purposes,' the next question is whether release of the material would involve one of the six types of harm specified in clauses (A) through (F) of amended exemption 7. If not, the material must be released despite its character as an investigatory record compiled for law enforcement purposes, and (generally speaking) even when the requester is currently involved in civil or criminal proceedings with the Government.14

1975 Source Book, supra, Appendix 5, at 516-17 (emphasisadded). The government has failed to show how the limited orderof release of records and information received from the NYCPDand thus of Howlette would cause any harm, under the specialfactual circumstances of this case.

The disclosure of this information, more than two decadesafter the events at issue, will not seriously damage the FBI'sability to gather information from non-federal law enforcementagencies. The Court has strictly limited its order ofdisclosure to a few specific documents, which recordinformation from a source, the NYCPD, which, it is undisputed,has waived confidentiality by release of its own records. Thegovernment has failed to articulate any reason why non-federallaw enforcement agencies would be deterred from sharinginformation with the FBI as a result of disclosure under thesefactual circumstances. On the record before the Court, themandate of FOIA would not be served by a failure of this Courtto order to limited disclosure contained in its previousopinion.

IV. Assertions of (b)(7)(C) Exemptions

In response to the Court's concern that (b)(7)(C) has beenapplied, in many cases, concurrently with (b)(7)(D), withoutadequate explanation, the FBI responds that it is FBI policy todo so. This response is insufficient to meet the statute'srequirements and does not provide the Court with enoughinformation to carry out its in camera review in a responsiblemanner. The FBI's syllogism on this motion, rejected by theCourt in its prior Opinion and Order, runs as follows: 1) allFBI records are compiled for law enforcement purposes; 2) allFBI investigations are eithercriminal investigations or lawful national securityintelligence investigations; 3) every individual, lawenforcement agency or other institution who gives informationto the FBI is therefore both a witness or other third partywith a privacy interest, and a confidential source, underexemption 7 of the FOIA; 4) therefore all information in FBIinvestigatory files, supplied to the FBI by all individuals,law enforcement agencies or institutions is exempt fromdisclosure under 7(C) and 7(D) together. Accepting thesearguments would exempt all but the most trivial FBI recordsfrom application of the FOIA, which is clearly against thepurpose and wording of the statute.15 It would also rendermeaningless the distinction, described in the Vaughn indexgiven to the Court, between "third parties interviewed," and"informants within the common meaning of the term and notmerely conscientious or cooperative citizens," contrasted inthe Second Superneau Decl., ¶¶ 53 and 56, and ¶ 63. The NYCPD'srelease of its unredacted files also eliminates the basis forthe FBI's application of certain (b)(7)(C) exemptions, which itstated it applied when the information was "not known to theplaintiff or to the general public." Second Superneau Decl., ¶¶51-52. The Court adheres to its earlier holding as to (b)(7)(C)exemptions.

V. Dead Sources

In its prior opinion, the Court directed the FBI to ascertainwhether records related to sources who are now dead had beenredacted and to inform the Court as to which persons were deador if the FBI was unable to determine that fact. The FBI hasnot done so and complains that it has no obligation to do so,since, it argues, the fact of a source's death would not affectapplication of the b(7) exemptions. With regard to recordsredacted under (b)(7)(C), that exemption requires a balancingof the source's privacy interest against the interest indisclosure. A dead person's privacy interest may survive his orher death, but it is necessarily greatly diminished by deathand must be balanced against the plaintiff's interest and thepublic interest in disclosure. Upon the FBI's compliance withthe Court's order, the Court will be in a position to weigh anydecedent's privacy interests against the interests favoringdisclosure.

VI. Motion for Stay

The FBI moves for a stay of the Court's prior Order andOpinion to the extent that the order requires disclosure ofdocuments to plaintiff, pending appeal. To obtain a stay,defendant must show a likelihood of success on the merits,irreparable injury to it absent a stay, public interest infavor of a stay, and no significant injury to the plaintiff.Defendant has shown none of the above. Its legal and factualarguments continue to be deficient, in spite of the Courthaving given it several opportunities in the past two years tojustify its position, with specific reference to areas ofconcern. While it is true that disclosure irrevocably changesthe status quo, the FBI has not shown that there is any harm toit in the disclosure of the few records, out of thousands (mostof which are more than two decades old), which it was orderedto disclose. Many of the people involved are dead; none of theofficials whose policies dictated the surveillance at issue arestill in those positions. The public interest falls moreheavily on the side of disclosure, in light of Ferguson'scontinued claim of innocence despite his conviction, thehistory of the FBI during this period, and the compellingpublic interest in assuring the fairness of the judicialprocess and the ultimate accountability of government agenciesas mandated by the FOIA. John Doe Agency, supra. Further delayin compliancewith the Court's orders is unwarranted, since the plaintiffcontinues to be incarcerated for a conviction which he hopes tochallenge on the basis of released FBI records. The governmenthaving failed to persuade the Court that a stay is justified,the FBI's motion for a stay of the order to disclose pendingappeal is denied. Landano v. United States Dep't of Justice,758 F. Supp. 1021, 1027 (D.N.J. 1991).


In light of the FBI's repeated inability to carry its burdenunder the FOIA as to certain exemptions and its failure toestablish a legitimate contemporary law enforcement purpose forthe compilation of records which it deleted under exemption(b)(7) in documents dated 1963-1970 and located in the filesclassified or cross-referenced under the numbers 62, 100, 105and 157, and its failure to show by contemporary documents thatthe investigations at issue were either criminal investigationsor lawful national security intelligence investigations under(b)(7)(D), the Court adheres to its earlier opinion denying theFBI partial summary judgment. For the reasons discussed as tothe application of the (b)(7)(C) and (b)(7)(D) exemptions, theCourt adheres to its earlier ruling with regard to records forwhich the New York City Police Department or Edward Howlette orany non-human device or technique was the source, which appearin the 89 documents reviewed in camera. The FBI is also orderedto make the in camera submissions to the Court which werepreviously ordered, 762 F. Supp. at 1094, and have not beenproduced, within ten days of the entry of this opinion andorder. 5 U.S.C. § 552(a)(4)(G).

The motion for a stay of the Court's Order and Opinion ofApril 22, 1991 and of the above order is denied. No stay isgranted as to the order to make in camera submissions to thisCourt and no such motion will be entertained.


1. Special Agent Smith is the FBI employee who hassupervised the processing of the FOIA request at issue here andfound by the Court to be flawed. According to his priordeclaration, dated September 24, 1990, he was also a fieldinvestigative agent from 1969 to 1979. Declaration of Joseph P.Smith, September 24, 1990, ¶ 2, n. 1. From 1971 to 1979 he heldthat position in the New York Field Office of the FBI, whosefiles and actions are many of those at issue here.

2. 28 C.F.R. 0.23a states:

(a) There is established, in the Office of Legal Policy, the Office of Information and Privacy, which, under the general supervision and direction of the Assistant Attorney General, Office of Legal Policy, shall:

(1) Act on behalf of the Attorney General on Freedom of Information Act and Privacy Act appeals under §§ 16.8, 16.48, 16.50(d) and 16.52, respectively, under the supervision of the Assistant Attorney General, Office of Legal Policy, except that: (i) In the case of a denial of a request by the Assistant Attorney General, Office of Legal Policy, the Attorney General or his designee shall act on the appeal, and (ii) a denial of a request by the Attorney General shall constitute the final action of the Department on that request.


E.g., Curt Gentry, J. Edgar Hoover. The Man and the Secrets (1991); Athan Theoharis (Ed.), From the Secret Files of J. Edgar Hoover (1991); Kenneth O'Reilly, Racial Matters: The FBI's Secret File on Black America (1989); Taylor Branch, Parting the Waters: America in the King Years (1988); Richard G. Powers, Secrecy and Power. The Life of J. Edgar Hoover (1987); David J. Garrow, Bearing the Cross: Martin Luther King, Jr. and the Southern Christian Leadership Conference (1986).

4. The Court has looked to the legislative history of theFOIA for guidance, as have most courts considering theseissues, because the language of the exemption provisions is notunambiguous when read in isolation and alone it provides littleguidance to a court reviewing de novo an agency's claims ofexemption. See, e.g., NLRB v. Robbins Tire & Rubber Co.,437 U.S. 214, 224-36, 98 S.Ct. 2311, 2318-24, 57 L.Ed.2d 159(1978). Cf. John Doe Agency. v. John Doe Corp., 493 U.S. 146,110 S.Ct. 471, 476-77, 107 L.Ed.2d 462 (1989).

5. In its Vaughn affidavit to the Court (the SecondDeclaration of Regina Superneau, February 16, 1990, hereinafter"Second Superneau Decl."), the FBI originally declared that ithad used (b)(7)(D)-3 (information furnished by a confidentialsource), for example (applied to withhold some of thepamphlets), to redact information received from third partiesfor the specific reason that releasing such information mightreveal their identities. Second Superneau Decl., ¶¶ 65-66, 68.The same danger, disclosure of identity, was given as thereason for withholding pamphlets under (b)(7)(D)-2 (disclosureof reports of a law enforcement agency). Id., ¶ 63. The FBIseeks now, after the Court has pointed out that releasingpublic records and pamphlets handed out on the street cannotpossibly reveal the identity of the source, to change itsdeclaration to claim it is not necessary to show any danger ofdisclosure.

6. The Court also questioned whether the FBI's position wasthat the files on Ferguson were opened pursuant to a criminalinvestigation or a lawful national security intelligenceinvestigation, and the government has not responded. Thegovernment has cited only criminal statutes and has not citedany authority which would allow the Court to determine whetherthe records were compiled as part of a "lawful nationalsecurity intelligence investigation" under the FOIA. The Courtnotes that the phrase was strictly limited in the JointStatement of the Committee on Conference to refer only to"military security, national defense or foreign policy . . .[and] positive intelligence-gathering activities,counter-intelligence activities, and background securityinvestigations by governmental units which have authority toconduct such functions." Source Book: Legislative History,Texts, and Other Documents, Freedom of Information Act andAmendments of 1974 (P.L. 93-502), Joint Committee Print, March,1975 ("1975 Source Book"), 230. The exemption is limited tothose national security investigations which are lawful.Because the FBI has not explained how its activities meet anypart of this definition and has cited only criminal statutes,the Court finds that the FBI has taken the position that allrecords were compiled as part of legitimate criminalinvestigations.

7. The Court directed the government to submit contemporaryproof that the FBI in fact had a "justifiable suspicion" thatfederal law was in danger of being violated and thus had alegitimate law enforcement purpose for the compilation of therecords for use in its investigations and for the continuedmonitoring. The Court questioned whether the Smith Act and theInternal Security Act did, as claimed, supply the actualpurposes of these investigations in light of the strictlimitations which had been placed on the enforcement of thosestatutes by contemporary Supreme Court decisions and in lightof evidence to the contrary contained in the FBI records. 762F. Supp. at 1090-91, 1091 n. 13. See, e.g., unredacted FBIletter to the Secret Service, January 28, 1968, attached toDocument 13 of the short in camera production (no allegation ofthreats of bodily harm against government officials).

As of 1976, no prosecutions under the Smith Act had beeninitiated after 1957, the year of the decision in Yates v.United States, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356(1957). Intelligence Activities and the Rights of Americans(the "Church Committee Report"), Senate Report No. 94-755, BookII at 48 (94th Cong.2d Sess., April 26, 1976). The Departmentof Justice moratorium on Smith Act prosecutions, lasting atleast nineteen years, covers the entire period of the FBI'sinterest in Ferguson documented in the records from 1963-70 andit undercuts any claim by the FBI today that the monitoring ofFerguson's activities in that period was conducted in the goodfaith expectation that the FBI would find Ferguson had violatedor was in violation of this statute. See Lamont v. Dep't ofJustice, 475 F. Supp. 761, 774-75 (S.D.N.Y. 1979). The Court isnot aware that any Smith Act prosecutions have been initiatedin the additional fifteen years since 1976.

8. The government does not appear to be resisting theCourt's order to disclose the information provided by Lt. Col.Smith and Lt. Col. Smithson.

9. The government having failed to comply with the Court'sorder of April 22, 1991, to supply it in camera with codenumbers together with source identification, 762 F. Supp. at1094, is unable to verify these statements by the FBI at thistime, but for purposes of this opinion, the assertions will beaccepted as accurate. The government agrees that a "technicalsurveillance device such as a mail cover or electronicsurveillance cannot constitute a 'confidential source' forpurposes of Exemption 7(D)." Defendant's Memorandum in Supportof Motion for Clarification at 5.

10. Peter Zimroth, Perversions of Justice: The Prosecutionand Acquittal of the Panther 21 (Viking, 1974). See also,Handschu v. Special Services Division, 605 F. Supp. 1384,1396-99 (S.D.N.Y. 1985) (Haight, J.) (re BOSS surveillance ofcommunity activists); People v. Collier, 85 Misc.2d 529, 376N YS.2d 954, 960-61 (N.Y. Sup. Ct. 1975) (same).

11. Sampled contents of those files are attached to theGibbs Decl. as Exhibits 1-50.

12. "The (b)(7)(C)-4 exemption was asserted to withhold theidentities of cooperating non-Federal law enforcement officers.. . . when it was determined that their names were not known tothe plaintiff or to the general public. This exemption was usedin conjunction with (b)(7)(D)-4." Second Superneau Decl., ¶ 52.Clearly, with respect to the NYCPD's released files, thosenames are now known to the plaintiff.

13. Even Irons involved "the plaintiffs' claim that they areentitled to more than what the Smith Act trials in fact broughtto light." 880 F.2d at 1448 (emphasis in original).

14. The six are: 1) interference with enforcementproceedings; 2) deprivation of a fair trial; 3) unwarrantedinvasion of personal privacy; 4) disclosure of the identity ofa confidential source; 5) disclosure of investigativetechniques and procedures; and 6) endangering the life orsafety of law enforcement personnel. 5 U.S.C. § 552(b)(7). Theexemption for information supplied by a confidential source wasadded to address Senate and Presidential concerns that evenpieces of seemingly trivial information could be analysed toreveal the source's identity. 1975 Source Book, supra, at 371.This does not alter the fact that the actual harm sought to beavoided is the disclosure of identity itself. Cf. NLRB v.Robbins, supra. That reading was reaffirmed by the SupremeCourt after the 1986 amendments to exemption 7 in John DoeAgency, supra, 110 S.Ct. at 477, with reference to "sixspecified harms." Id.

15. Judge Sarokin recently noted in making a similar ruling:

[T]he government presents the following syllogism: (1) all information conveyed to the FBI during the course of a criminal investigation is furnished pursuant to an express or implied promise of confidentiality; (2) based upon such express or implied promise neither the source not the content of the information received from such source may be disclosed; (3) therefore, all information gathered by the FBI from any source during a criminal investigation is exempt from disclosure under exemption 7(D) of the FOIA. . . . To find as the government contends would totally eviscerate the statute and its policy and purpose.

Landano v. United States Dep't of Justice, 758 F. Supp. 1021,1022 (D.N.J. 1991).

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