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January 30, 1979


The opinion of the court was delivered by: Marshall, District Judge.


Plaintiff brought this action against the Department of Justice and the Federal Bureau of Investigation (FBI) under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, and the Privacy Act, 5 U.S.C. § 552a, seeking production of documents in the possession of the FBI and the United States Attorney for the Northern District of Illinois. Jurisdiction is predicated upon 28 U.S.C. § 1361. After requesting documents relating to an alleged wiretap on his telephone, plaintiff received some documents and portions of documents from the FBI. Not satisfied with the extent of the FBI's disclosure, plaintiff brought this suit seeking production of the withheld portions of the FBI documents and any documents concerning him in the possession of the United States Attorney's office. Plaintiff also subsequently amended his complaint to seek further indexing and itemization by the FBI. We granted plaintiff's motion for further indexing. Because of the FBI's alleged refusal to justify its withholding of information, and because of the delay involved in producing indexing, plaintiff has now sought sanctions against defendants. Several motions are now pending: plaintiff's and defendants' motions for summary judgment, defendants' motion to dismiss, defendants' motion for reconsideration of our order granting further indexing, and plaintiff's motion for sanctions.


On February 8, 1973, plaintiff, a former research scientist with Argonne National Laboratories, complained to the Chicago office of the FBI about a possible wiretap on his telephone. The FBI investigated plaintiff's complaint, and in January, 1974, the United States Attorney's office for the Northern District of Illinois declined prosecution. Because plaintiff's only further recourse was a civil action, and because plaintiff believed that the FBI's investigation had been inadequate, plaintiff sought to learn more about the investigation through a FOIA request. Plaintiff made several requests for documents relating to a possible wiretap on his telephone and the FBI's investigation, including requests to James Thompson, then United States Attorney for the Northern District of Illinois, and the Department of Justice. After extended correspondence between plaintiff and the Department of Justice, the FBI on October 22, 1976 released some documents to plaintiff, with deletions of information allegedly exempt under exemptions (b)(2), (b)(7)(C) and (b)(7)(D) of the FOIA. Additional documents were released to plaintiff on February 23, 1977. After exhausting his administrative remedies, plaintiff brought this action on September 7, 1977.

On September 21, 1977, we ordered defendants to provide an index and justification for the material withheld from the twelve documents released to plaintiff. On November 4, 1977, defendants filed an index which purported to justify the withheld information on the basis of exemptions in the FOIA. On January 16, 1978 plaintiff moved for summary judgment as to the withheld portions of the documents. Defendants filed a cross motion for summary judgment. Alternatively, defendants moved to dismiss plaintiff's complaint as to the FBI, Director Kelley, and Attorney General Bell on the grounds that they are not proper parties to the action. Not satisfied with the index supplied by the defendants, plaintiff moved for sanctions against defendants for failure to fully comply with our order to provide an index. We denied this motion without prejudice on February 6, 1978. On June 2, 1978, plaintiff moved for further indexing, justification, and itemization, alleging that the FBI had not searched all possible sources of documents. We granted this motion on June 30, 1978 and ordered the government to comply within forty-five days. The government instead moved on July 25 for reconsideration of our order granting further indexing. The plaintiff then renewed his earlier motion for sanctions.

Defendants' Motion to Dismiss

Defendants assert that the FBI, William H. Webster,*fn1 and Attorney General Griffin Bell are not proper parties to this action because they are not "agencies" to which a request for documents can be directed within the meaning of the FOIA. See 5 U.S.C. § 552. The legislative history to the 1974 amendments to the FOIA clearly indicates that the FBI is such an agency for FOIA purposes. According to the legislative history, Congress intended the FOIA to apply to criminal law enforcement authorities, and the FBI is such an authority. House Rep. No. 93-876, 1974 U.S.Code Cong. & Admin.News, pp. 6267, 6291-92. See Hamlin v. Kelley, 433 F. Supp. 180, 181 (N.D.Ill. 1977). Defendants' motion to dismiss the FBI is denied. Similarly, Attorney General Bell and Director Webster, who are sued in their official capacities as custodians of the documents, are proper parties. They are responsible for the administration of the FOIA within the Department of Justice and the FBI and would act on any order by this court directing the FBI to produce the withheld information. See id. Defendants' motion to dismiss Attorney General Bell and Director Webster is denied.

         Plaintiff's and Defendants' Motions for Summary

The purpose of the FOIA is to allow access to official information, which often has been unjustifiably withheld from public scrutiny. See Environmental Protection Agency v. Mink, 410 U.S. 73, 80, 93 S.Ct. 827, 832, 35 L.Ed.2d 119 (1973). Thus an agency must release information in its possession unless the information falls within one of the Act's nine statutory exemptions contained in 5 U.S.C. § 552(b). To insure that the Act's policies favoring disclosure are served, the nine exemptions are to be narrowly construed. Theriault v. United States, 395 F. Supp. 637, 641 (C.D.Calif. 1975); B & C Tire Co. v. IRS, 376 F. Supp. 708 (N.D.Ala. 1974). Moreover, the statute provides that the district court must make a de novo review of the administrative decision and the burden is on the agency to justify its action in withholding documents. 5 U.S.C. § 552(a)(4)(B).

Defendants have relied on several exemptions to justify withholding portions of the requested documents.*fn2 Defendants relied on exemption (b)(7)(C) to delete the names of FBI agents, individuals questioned during the investigation of plaintiff's wiretap complaint, information which would tend to identify those individuals, and information concerning two United States Senators and one Congressman. Exemption (b)(7)(C) exempts investigatory records compiled for law enforcement purposes to the extent that disclosure would constitute an unwarranted invasion of personal privacy. To hold that information is exempt from disclosure under (b)(7)(C), we must find that the records were compiled for law enforcement purposes, that personal privacy interests attach to the withheld information, and that disclosure would constitute an unwarranted invasion of those privacy interests.

The information withheld here clearly consists of records compiled for law enforcement purposes. If a privacy interest is implicated, then we would adopt the test the Supreme Court formulated with respect to exemption (b)(6) in Department of Air Force v. Rose, 425 U.S. 352, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976). Exemption (b)(6) is similar to exemption (b)(7)(C) in that (b)(6) exempts information from personnel files, the disclosure of which would constitute a "clearly unwarranted invasion of personal privacy."*fn3 The Court in Rose indicated that the exemption requires "a balancing of the individual's right to privacy against the preservation of the basic purpose of the Freedom of Information Act `to open agency action to the light of public scrutiny.'" Id. at 372, 96 S.Ct. at 1604.

FBI agents do have a privacy interest in the potential disclosure of their names in connection with a FOIA request regarding a particular investigation. A government employee does not completely lose his personal privacy with respect to the discharge of his official duties. Nix v. United States, 572 F.2d 998, 1005-06 (4th Cir. 1978). Identification possibly could subject the agents to "harassment and annoyance in the conduct of their official duties and in their private lives." Id. See also Maroscia v. Levi, 569 F.2d 1000, 1002 (7th Cir. 1977); Flower v. FBI, 448 F. Supp. 567, 571 (W.D.Tex. 1978). The defendants also assert that disclosure of agents' names could jeopardize future undercover assignments. See King affidavit.

Balanced against the privacy interests is the public interest in the investigation and disclosure of possible violations of federal statutes. With complete disclosure, plaintiff would be able to determine whether the FBI's investigation of the alleged wiretap was complete and adequate. Moreover, although the Act was not designed to benefit private litigants, NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 143 n. 10, 95 S.Ct. 1504, 1513 n. 10, 44 L.Ed.2d 29 (1975), the public interest in preventing and discovering illegal wiretaps may be vindicated in some cases only by a private litigant's resort to a civil action under 18 U.S.C. § 2520. Just as the vindication of constitutional rights by private litigants in § 1983 actions serves the public interest, the vindication of important statutory rights such as those embodied in 18 U.S.C. § 2520 also serve the public interest. Thus if plaintiff needs the names of the FBI agents to maintain a suit under § 2520, then the release of the names would benefit a public interest. We must emphasize that plaintiff could not tip the balance in his favor by pointing to his personal interest in a thorough investigation of a wiretap on his phone, an interest which is admittedly greater than the public's interest in such an investigation. We merely note here that the public interest in such an investigation coincides to a certain extent with plaintiff's own interest.

In balancing the privacy interests of the FBI agents with the public interest in disclosure, we must not perform the balancing act in a vacuum. Instead of weighing the potential dangers to FBI agents or the possible benefits to the public interest in the abstract, we must consider these dangers or benefits in the context of the facts of this particular case. This is not a case in which the plaintiff seeking disclosure of names of agents has been investigated for possible criminal violations. See Maroscia v. Levi, supra at 1002. Accordingly, we perceive no possible danger to the agents resulting from disclosure of their names to plaintiff, nor have defendants hypothesized any such danger. Thus we are left with an abstract potential for harassment and annoyance and the possibility that future undercover investigations could be jeopardized as justifications for the deletion of the agents' names. These potential invasions of privacy would exist in every case involving disclosure of agents' names, and the government has not indicated any reason for speculating that the potential is greater in this case.

The exemptions to disclosure are to be narrowly construed, and Congress amended exemption (b)(7) in 1974 because of the broad application courts were giving it. Charlotte-Mecklenburg Hospital Authority v. Perry, 571 F.2d 195 (4th Cir. 1978). Thus once we have found a public interest in disclosure, and the government has not pointed to any circumstance peculiar to this case which indicates greater potential for harassment, annoyance, or the compromising of undercover assignments than would be present in every case, we shall resolve the balancing test in favor of disclosure. Cf. Nix v. United States, supra at 1006 (no public interest found); Flower v. FBI, supra at 571; Tarnapol v. FBI, 442 F. Supp. 5, 8 (D.D.C. 1977). In weighing the public interest in disclosure against the privacy interests, we conclude that the ...

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