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ABRAMS v. FEDERAL BUREAU OF INVESTIGATION

April 21, 1981

ARNOLD ABRAMS, PLAINTIFF,
v.
FEDERAL BUREAU OF INVESTIGATION, UNITED STATES DEPARTMENT OF JUSTICE AND CENTRAL INTELLIGENCE AGENCY, DEFENDANTS.



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

MEMORANDUM OPINION

Plaintiff has filed this action under the Freedom of Information Act to compel the defendant federal agencies to produce documents from their files which relate to him and which they have refused to produce pursuant to his requests and to require the agencies to supply him with the information they have deleted from the documents which they have produced. The plaintiff has made a motion for partial summary judgment as to the information deleted from two documents which the FBI has produced, documents 59 and 60. For the reasons hereinafter stated, we grant plaintiff's motion for summary judgment in part, and deny it in part; we grant summary judgment for defendant in part.

I

Document 59 is a 1963 memorandum from the FBI Chicago office to the Director of the FBI. The memorandum noted that plaintiff had been hired as a consulting psychologist for the Chicago Police Department and that, according to the FBI's files, plaintiff was a member of the Communist Party. Authority to reveal Abrams' Communist Party membership to a third party was requested. That authority was granted by the Director in document 60. The FBI released documents 59 and 60 to plaintiff; deletions, however, concealed the names of FBI agents, the source or sources for the agency's information about plaintiff, and the identity of the party to whom the FBI revealed its information.

The FBI claims that the deleted information is exempt under section (b)(7) of the FOIA.

(b) This section does not apply to matters that are —

    (7) investigatory records compiled for law
  enforcement purposes, but only to the extent that the
  production of such records would (A) interfere with
  enforcement proceedings, (B) deprive a person of a
  right to a fair trial or an impartial adjudication,
  (C) constitute an unwarranted invasion of personal
  privacy, (D) disclose the identity of a confidential
  source and, in the case of a record compiled by a
  criminal law enforcement authority in the course of a
  criminal investigation, or by an agency conducting a
  lawful national security intelligence investigation,
  confidential information furnished only by the
  confidential source, (E) disclose investigative
  techniques and procedures, or (F) endanger the life
  or physical safety of law enforcement personnel;
  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). Specifically, the FBI relies on the personal privacy exemption contained in section (b)(7)(C) and the confidential source exemption contained in section (b)(7)(D).

II

Courts are divided on the meaning of the phrase "investigatory records compiled for law enforcement purposes" when the agency invoking exemption 7 is the FBI. Neither the FOIA itself nor its legislative history define those terms. Some courts have held that before the FBI can withhold information on the basis of exemption 7, it must prove "that the agency was gathering information with the good faith belief that the subject may violate or has violated federal law [rather than] merely monitoring the subject for purposes unrelated to enforcement of federal law." Lamont v. Department of Justice, 475 F. Supp. 761, 773 (S.D.N.Y. 1979). See also Church of Scientology of California v. United States Department of the Army, 611 F.2d 738, 748 (9th Cir. 1979) ("An agency which has a clear law enforcement mandate, such as the FBI, need only establish a `rational nexus' between enforcement of a federal law and the document for which exemption is claimed."); Ramo v. Department of the Navy, 487 F. Supp. 127, 131 (N.D.Cal. 1979) (the FBI must "show a sufficient connection between the conduct of the investigation and legitimate concerns for maintaining national security or preventing criminal activity); Black v. Sheraton Corporation of America, 371 F. Supp. 97, 102 (D.D.C. 1974) (investigatory file exemption is not applicable if the investigation was not related to a law enforcement proceeding but was conducted for intelligence purposes). Other courts, however, have held that proof of a law enforcement purpose for a particular investigation is not a prerequisite to the application of exemption 7 to FBI documents. Kuehnert v. FBI, 620 F.2d 662, 666 (8th Cir. 1980); Irons v. Bell, 596 F.2d 468, 476 (1st Cir. 1979).

We hold, as did the courts in Kuehnert v. FBI and Irons v. Bell, that all FBI investigatory records are "compiled for law enforcement purposes" regardless of the legality of the particular investigation or the sufficiency of the connection between the investigation and enforcement of a federal law. The exemptions in section (b)(7) represent congressional efforts to accommodate both a democracy's interest in public access to government processes and government and individual interests in confidentiality. See Senate Debate & Vote, May 30, 1974, reprinted in Freedom of Information Act and Amendments of 1974 (P.L. 93-592) Source Book: Legislative History, Texts, and Other Documents 334 (1975) (remarks of Senator Hart). Application of exemption 7 to all FBI investigatory records maintains that balance with less harm to those conflicting interests than does selective application based on an evaluation of the propriety of a particular investigation.

We reject the latter approach, which attaches legal significance to the apparent lack of law enforcement purpose in an FBI investigation, for several reasons. First, notwithstanding the tests for law enforcement purpose formulated by other courts, no adequate, concrete standards can be articulated to distinguish

  between a colorably justifiable investigation that
  turned out to be a blind alley and an investigation
  that was bogus from the beginning. At best, the
  district court would be forced, on a record grown
  cold after years or decades, to second or third guess
  the ...

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