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
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 ...