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ANTONELLI v. FEDERAL BUREAU OF INVESTIGATION

United States District Court, Northern District of Illinois, E.D


April 6, 1982

MICHAEL C. ANTONELLI, PLAINTIFF,
v.
FEDERAL BUREAU OF INVESTIGATION, ET AL., DEFENDANTS.

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

  MEMORANDUM OPINION

In this thirty-seven count complaint plaintiff Michael C. Antonelli seeks information from the Federal Bureau of Investigation ("FBI") concerning himself and several third parties under the Freedom of Information Act, 5 U.S.C. § 552 (1976) ("FOIA").*fn1 Defendants have moved for summary judgment on twenty of the counts. The summary judgment motion can be dealt with most effectively by breaking it down into six subparts: on seven counts defendants refuse to confirm or deny the existence of any files concerning the subjects of the inquiries, relying on the privacy interests of the third parties;*fn2 on four counts defendants allege that a search of the central files of the FBI failed to reveal any request for the information by the plaintiff and therefore no further search was conducted*fn3; on one count defendants admit receiving plaintiff's request and the written consent of the subject of the inquiry but allege that there are "doubts about the authenticity" of the consent and that it has now been revoked and accordingly, refuse any production*fn4; on one count defendants allege that a search was conducted and no files were found under the name submitted by the plaintiff*fn5; and on another count defendants allege that they are unable to conduct a search because the request by the plaintiff does not correspond to any classification index used by the FBI.*fn6 Defendants have produced a substantial amount of material pursuant to all or part of five of plaintiff's requests, but plaintiff challenges the sufficiency of the production and the exemptions relied on by the FBI in deleting portions of the documents.*fn7 Finally, defendants have offered to produce the requested material for two counts of the complaint if plaintiff tenders the 10¢ per page copying fee, or plaintiff's representatives can examine the material free of charge in the FOIA reading room at the FBI headquarters in Washington, D.C.*fn8 Plaintiff has responded with a cross motion for summary judgment asserting that defendants' response to the complaint is generally inadequate.

The purpose and function of the FOIA are, by now, well known in this circuit and the court sees no need to review them in detail here. See Stein v. Department of Justice and Federal Bureau of Investigation, 662 F.2d 1245 (7th Cir. 1981); Miller v. Bell, 661 F.2d 623 (7th Cir. 1981); Terkel v. Kelly, 599 F.2d 214 (7th Cir. 1979), cert. denied, 444 U.S. 1013, 100 S.Ct. 662, 62 L.Ed.2d 642 (1980); Scherer v. Kelley, 584 F.2d 170 (7th Cir. 1978), cert. denied, 440 U.S. 964, 99 S.Ct. 1511, 59 L.Ed.2d 778 (1979); Maroscia v. Levi, 569 F.2d 1000 (7th Cir. 1977). See also Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974).

The Act requires that an initial request to the agency for the release of information be acted upon in ten days and that any denial of release may be administratively appealed and the appeal decided within twenty days. 5 U.S.C. § 552(a)(6)(A)(i) and (ii). See generally Stein, 662 F.2d at 1252. In order to withhold information requested the agency must rely on the specific exemptions set out in § 552(b) of the Act. The agency has the burden of sustaining its claim of exemption and the exemptions are to be narrowly construed in order to further the policy of disclosure which is at the heart of the statute. Department of Air Force v. Rose, 425 U.S. 352, 360-70, 96 S.Ct. 1592, 1598-03, 48 L.Ed.2d 11 (1976); Vaughn v. Rosen, 484 F.2d at 823; Soucie v. David, 448 F.2d 1067, 1080 (D.C. Cir. 1971). This burden can be met if the agency submits affidavits that

  (1) describe the withheld documents and the
  justifications for non-disclosure with reasonably
  specific detail, (2) demonstrate that the
  information withheld falls logically within the
  claimed exemption, and (3) are not controverted
  by either contrary evidence in the record or by
  evidence of agency bad faith. Military Audit
  Project v. Casey, 656 F.2d 724 (1981); Lesar v.
  Dep't. of Justice, 636 F.2d 472 (D.C. Cir. 1980);
  Hayden v. National Security Agency/Central Security
  Serv., 608 F.2d 1381 (D.C. Cir. 1979), cert.
  denied, 446 U.S. 937, 100 S.Ct. 2156, 64 L.Ed.2d
  790 (1980); Terkel v. Kelly, 599 F.2d 214. Stein
  v. Dep't. of Justice and FBI, 662 F.2d at 1253.

In conducting its de novo review the district court has discretion to conduct an in camera review of the documents if the public record does not provide a sufficient basis for analyzing the claimed exemption. 5 U.S.C. § 552(a)(4)(B). See Stein, 662 F.2d at 1253. In certain limited situations involving sensitive issues of national security the affidavits themselves may be filed in camera, see Phillipi v. Central Intelligence Agency, 546 F.2d 1009, 1011-13 (D.C. Cir. 1976); Hayden v. National Security Agency/Central Security Service, 608 F.2d at 1384-86, but the general rule is that the affidavits must be filed publicly and the opposing party given the opportunity to criticize and contest the claimed exemptions. Id.

While the contours of the specific exemptions in § 552(b) are still being shaped and application of the exemptions to particular facts is often hotly contested, the procedures used as outlined above are well settled. In light of those procedures we find defendants' response to counts 2, 3, 8, 19, 30, 31 and 33 incredible. Defendants have not only refused to turn over any documents to the plaintiff pursuant to these counts, they have refused to confirm or deny the existence of any of the requested files and have provided the court and the plaintiff absolutely no information on which to base a judgment of whether the requested material is exempt from the FOIA. While they have cited no case authority in support of their position, defendants rely principally on the Privacy Act, 5 U.S.C. § 552a (1976) for the proposition that absent written authorization from the subject of the inquiry they are prohibited from even acknowledging whether the requested files exist. Additionally, defendants cite § 552(b)(7)(C) and (D) in defense of the "FBI's [] action in refusing to confirm or deny the existence of records concerning third parties in the absence of their notarized authorizations." Defendants' Reply on Motion for Summary Judgment at 2. Defendants appear to treat these two arguments interchangeably, but we believe they are distinct and we address each separately.

The Privacy Act was passed in 1974 in part to promote greater respect for the privacy of citizens by government and prohibit unnecessary and excessive exchange of personal information within the government and to outside individuals. See S.Rep. 93-1183, 93d Cong., 2d Sess., reprinted in [1974] U.S.Code Cong. & Admin.News 6916; see also Florida Medical Ass'n v. Department of Health, Education & Welfare (HEW), 479 F. Supp. 1291, 1305-07 (M.D. Fla. 1979); Local 2047, American Federation of Government Employees v. Defense General Supply Center, 423 F. Supp. 481, 483-86 n. 9-10 (E.D.Va. 1976).

The FBI's position on the impact of the Privacy Act is set out in the detailed affidavit of agent Donald Smith. (Hereinafter "Smith Aff."). In essence the Bureau is of the opinion that the Privacy Act overrides the FOIA and prohibits the disclosure of any "personal" information about a third party without their notarized authorization. Smith Aff. ¶ 68. Moreover, "[t]he FBI has further advised [plaintiff] that to confirm or deny investigative interest in the individual identified by plaintiff would, of itself, reveal personal information concerning a third party." Id.

The defendants' position was expressly rejected by Congress in drafting the Privacy Act and, so far as we have been able to discover,*fn* every court that has considered it. The Act itself states:

    (b) Conditions of disclosure. — No agency shall
  disclose any record which is contained in a system
  of records by any means of communication to any
  person or to another agency, except pursuant to a
  written request by, or with the prior written
  consent of, the individual to whom the record
  pertains, unless the disclosure of the record would
  be —

    (2) required under section 552 of this title;
  5 U.S.C. § 552a(b)(2) (1976) (emphasis supplied).

Thus, the Privacy Act was not intended to override the FOIA and in operation only prohibits the release of information not covered by the FOIA or the discretionary release of material which, while exempt from the FOIA, the agency might have previously chosen to release. See Providence Journal Cov. F.B.I., 460 F. Supp. 762, 767 (D.R.I. 1978). If a request is made of an agency under the FOIA, disclosure is mandatory unless one of the enumerated exemptions applies. See Florida Medical Association v. HEW, 470 F. Supp. at 1306 ("Thus, since the Privacy Act expressly defers to the mandatory disclosure provisions of the FOIA, . . . ., information which is not exempt under Exemption 6 from disclosure would receive no Privacy Act protection."). See also Brown v. FBI, No. 79 CV 767, slip op. at 10 (N.D.N.Y. 1981) ("In considering the federal Privacy Act disclosure exemptions alone, it is apparent that plaintiff is barred under it from obtaining the records requested unless disclosure is required under the FOIA. . . . Since disclosure may be warranted under the FOIA, as provided for in 5 U.S.C. § 552, the Court must examine the FOIA exemptions to determine whether the[y] are applicable here.") (emphasis supplied), aff'd, 658 F.2d 71, 76 (2d Cir. 1981) ("[T]he decision to disclose or withhold the requested information depends entirely on the interpretation and applications of the claimed [FOIA] exemptions."); Providence Journal Co. v. F.B.I., 460 F. Supp. 762, 767 (D.R.I. 1978) ("Thus an agency which is required to disclose material under FOIA (that is material not covered by a FOIA exemption) can release it without bringing into play the requirement of § 552a(b) that permission first be obtained."). The position of the defendants in this litigation that they are prohibited by the Privacy Act from even searching for files under the names submitted by plaintiff absent prior written authorization is clearly erroneous. The only way defendants can resist plaintiff's FOIA requests is to rely on one of the enumerated exemptions in the Act and meet their burden of establishing that the exemption applies to those records. Defendants have failed to meet their burden in this case.*fn9

In their brief and the affidavit of agent Smith defendants rely on the exemptions provided by § 552(b)(6), (7)(C) and (7)(D). Those provisions permit the agency to withhold "personnel and medical files and similar files" and/or "investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records" constitutes a "clearly unwarranted invasion of personal privacy" or would disclose the identity of a confidential source.*fn10 Smith Aff. ¶¶ 71, 74-79. Defendants do not, however, apply the exemptions to particular files because, as we indicated earlier, they have refused to search for the files requested without prior written authorization from the third party. Instead, defendants argue in the hypothetical;

    If investigative files concerning these
  individuals are to be found within FBI systems of
  records, they would be compiled during the course
  of specific FBI investigations conducted pursuant
  to various federal statutes. . . . As such, they
  would constitute "investigatory records compiled
  for law enforcement purposes" within the meaning of
  the (b)(7) exemption of the FOIA. . . . Should it
  be determined that documents concerning certain
  individuals exist in personnel or medical files or
  files of a similar nature being maintained by the
  FBI, such documents would be withholdable pursuant
  to the (b)(6) exemption of the FOIA. Smith Aff. ¶
  71 (emphasis supplied).

In defense of that position agent Smith asserts

    The inference drawn from the fact that an
  individual was the subject of an FBI
  investigation is the FBI's belief that the
  individual was engaged in some conduct which is
  in violation of some criminal or civil statute,
  rule or regulation or that

  the individual was engaged in some activity which
  may have been detrimental to the national
  security of the United States. Such an inference
  clearly holds the individual up to public
  speculation and ridicule which can only cause the
  individual embarrassment, harassment and
  potential physical harm. Smith Aff. ¶ 74.

In their brief defendants take the position that

  [the] FBI's [] action in refusing to confirm or
  deny the existence of records concerning third
  parties in the absence of their notarized
  authorizations, citing the (b)(7)(C) and/or (D)
  privacy and confidential source
  exemptions, . . ., has been repeatedly upheld by
  the U.S. Court of Appeals for the Seventh Circuit.
  See Maroscia v. Levi, 569 F.2d 1000 (7th Cir.
  1977); Terkel v. Kelley, 599 F.2d 214 (7th Cir.
  1979), . . .; Scherer v. Kelley, 584 F.2d 170 (7th
  Cir. 1978), . . .; Miller v. Webster, et al.,
  [661 F.2d 623 (7th Cir. 1981)]. Defendants' Reply on
  Motion for Partial Summary Judgment at 2.

None of the cited cases supports the extreme position taken by defendants in this litigation. In each case the agency involved, usually the FBI, supplied the court and the plaintiff with detailed affidavits describing the nature of the material sought, producing the material for which no exemption applied, and outlining in various degrees of detail, why all or portions of the requested files should be exempt. See Miller v. Bell, 661 F.2d at 627 ("Special Agent King's lengthy and detailed affidavit . . . identifies each type of excision and relates them in particular detail to the relevant claimed exemption."); Terkel v. Kelley, 599 F.2d at 217 ("[T]he agency has furnished lengthy detailed descriptions of all documents released, the nature of portions excised, the statutory source of the exemptions claim, the reason the exemptions were claimed, and the standards [relied upon]. The affidavit contains a document by document index in which each document is described [and] the deleted portions are outlined as to quantity and general character. . ."); Scherer v. Kelley, 584 F.2d at 175 ("[W]e find that the FBI [and other agencies] all provided the court with a sufficiently detailed means of cross-reference. Those three agencies submitted sworn affidavits which comprehensively set forth the exemptions upon which the agency had relied when it excised portions of its file pertaining to Scherer and set forth the reasons underlying their use."); Maroscia v. Levi, 569 F.2d at 1001 ("The files have been produced for our in camera inspection and they have been reviewed. The portions asserted to be exempt were marked in red."). Even a cursory reading of those cases indicates that they do not sanction the agency in asserting a blanket refusal to produce documents based on a hypothetical assertion of third party privacy interests. In at least one case the court indicated that withholding entire pages of documents was not justified where deleting identifying material would adequately protect the interests served by the claimed exemption. See Terkel, 599 F.2d at 217-218.

The FBI's position here is clearly at odds with the procedures adopted in this and other circuits and violates the requirements of the FOIA. If we were to hold that agent Smith's affidavit asserting that admitting the existence of an FBI file alone constitutes a "clearly unwarranted invasion of personal privacy" without even requiring a description of what the file is about we would be creating a blanket exemption from the FOIA which the FBI could assert at its discretion. The Congress specifically rejected such a broad exemption from the requirements of the act and we decline to permit it to be fashioned here.*fn11 If defendants wish to resist the plaintiff's request for particular documents they must follow the procedure outlined in Stein and "(1) describe the withheld documents and the justifications for non-disclosure with reasonably specific detail, [and) (2) demonstrate that the information withheld falls logically within the claimed exemption." 662 F.2d at 1253. Merely stating that if some files exist they would necessarily be exempt in their entirety will not suffice. Defendants' motion for summary judgment on counts 2, 3, 8, 19, 30, and 31 is denied. Defendants are ordered to search for the requested material and produce the documents, identifying any claimed exemptions and the reasons for the exemption with reference to the particular documents, within 30 days.

Defendants move to dismiss counts 15, 25, 26 and 28 on the grounds that after a thorough search of the FBI's central file no FOIA requests by plaintiff were discovered for the persons covered by these counts. The affidavit of agent Smith adequately details the FBI search procedure and if uncontroverted would constitute a clear grounds for dismissal. The Act requires that before the district court may entertain an action under the statute plaintiff must exhaust available administrative procedures.*fn12 Such procedures obviously include providing the agency with an initial FOIA request. However, here the assertions of agent Smith are controverted by plaintiff. Plaintiff has attached to his complaint*fn13 a copy of an initial request and letter appealing the FBI's failure to produce the requested documents in the statutory ten day period. Plaintiff's Complaint, Count XV, Ex. A, B; Count XXV, Ex. A, B; Count XXVI, Ex. A, B; Count XXVIII, Ex. A, B. On the cross motions for summary judgment we must construe the factual issues in a way most favorable to the opposing party. Poller v. Columbia Broadcasting System, 368 U.S. 464, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962). Thus, under normal circumstances, the cross motions for summary judgment would be denied.

However, on the facts of this case, we do not believe conducting a hearing will be helpful in deciding the issue, while it will undoubtably impose a substantial burden on the parties.*fn14 What we have here is a standoff: plaintiff asserts that he mailed the initial request and the notice of appeal and defendants assert that they never received them. There is no doubt, however, that defendants received a copy of the requests contained in these counts upon service of the complaint in this case. In order to economize what would otherwise be an unnecessarily long and unhelpful process, we will grant defendants' motion to dismiss these counts but treat service of the complaint as an official request under the FOIA for release of the information requested. If in the ten day statutory period from the date of this opinion defendants do not comply with the request, plaintiff may file an administrative appeal on which he is entitled to a ruling in twenty days. If plaintiff is not satisfied with the disposition of his request he may again initiate suit to compel disclosure and we will consolidate that suit with the remaining portions of the case currently before us.*fn15 With the above understanding, defendants' motion to dismiss counts 15, 25, 26 and 28 is granted without prejudice.

Defendants' motion to dismiss with respect to counts 11, 13, 16, and the portion of 36 dealing with Ray Miller is well founded. Count 13 requests material in connection with "case number 74 CR 806." The affidavit of agent Smith adequately explains that the FBI does not index files or materials by criminal docket numbers and therefore has no way to trace the material sought. Smith Aff. ¶ 82. With respect to Ray Miller the affidavit of agent Smith that a search of the general indices of the central records system of the FBI has failed to reveal any file under the name identified is dispositive. Smith Aff. ¶ 80. Defendants can do no more than search their files and they cannot turn over what they do not have. Finally defendants' assertion by way of affidavit that they are ready to turn over the files requested on Patricia Hearst and the late Mayor Richard Daley if plaintiff pays the 10¢ per page copying fee is dispositive of counts 11 and 16. Smith Aff. ¶ 83; Affidavit of Agent Sherry Davis ¶ 1-11 (hereinafter "Davis Aff."). Plaintiff's request to receive the documents free of charge was denied pursuant to statute and applicable regulations. See Davis Aff. ¶ 9-11, Ex. F, G; 5 U.S.C. § 552(a)(4)(A) and 28 C.F.R. ¶ 16.9(a), (b). We agree with defendants that plaintiff has failed to establish that he seeks release of these documents in the general public interest as opposed to his own private use and he therefore fails to meet the standards for requiring a fee waiver. Id. Accordingly, counts 11, 13, 16 and the portion of count 36 identified above are dismissed.

With respect to counts 6, 10, 17 and the remainder of count 36, defendants have produced and turned over to plaintiff a substantial amount of material. That material contains literally thousands of pages of documents, supported by affidavits from four FBI agents containing specific explanations for each exemption claimed and detailed indices of how the exemptions correspond to the documents. See Davis Aff., Ex. 7 ¶ 19-20, ex. EE; Affidavit of Agent Francis Garret, Ex. 8 ¶ 20-22, ex. O (the Garret affidavit explains the exemptions claimed on a cover page to each document produced rather than by way of a general index); Affidavit of Agent Walter Scheuplein, Ex. 9 ¶ 8, ex. L; Affidavit of Agent Douglas Ogden, Ex. 10, ¶ 5-6 (this affidavit also asserts the claimed exemptions by way of a cover page to each document disclosed rather than by way of a general index). We have reviewed the affidavits submitted and selectively viewed the documents submitted to plaintiff and we find that the affidavits are sufficient to establish the applicability of the § 552(b)(6) and (b)(7) exemptions claimed by defendants. In balancing the individuals' rights to privacy against the public interest in the disclosure sought here we believe the privacy interests asserted have the better of it. All of claimed exemptions relate to protections of named individuals; either FBI or other agents of government, sources during the course of criminal investigations, or third parties whose names came up during the course of criminal investigations. Plaintiff's desire for the documents apparently stems from his belief that all or part of the material is relevant to his proving that he was wrongly convicted of criminal activity.*fn16 While plaintiff need not assert any reason at all to require the agency to comply with his FOIA requests for documents which are not protected by an exemption, once an exemption is claimed the general public interest in release becomes relevant. See Department of Air Force v. Rose, 425 U.S. 352, 372, 96 S.Ct. 1592, 1604, 48 L.Ed.2d 11 (1976); Miller v. Bell, 661 F.2d at 628-31. On the facts of this case, we hold that the privacy interests prevail and disclosure would be unwarranted.

Plaintiff additionally contends that the Vaughn affidavits supplied him are vague and ambiguous. To the contrary, we find the affidavits more than sufficient to meet the requirements of Vaughn and its progeny. See Stein v. Dept. of Justice and FBI, 662 F.2d at 1260; Baez v. Dept. of Justice, 647 F.2d 1328 (D.C. Cir. 1980); Lesar v. Dept. of Justice, 636 F.2d 472 (D.C. Cir. 1980); Nix v. United States, 572 F.2d 998 (4th Cir. 1978); Vaughn v. Rosen, 484 F.2d 820, 826-28 (D.C. Cir. 1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974).*fn17 Accordingly, defendants' motion to dismiss with respect to counts 6, 10, 17 and 36 is granted.

Count 1 of plaintiff's complaint requests all documents under plaintiff's name. Defendants, for some reason the court has been unable to ascertain, treat this as a request for information on someone named Cologero Ravana. See Defendants' Motion for Partial Summary Judgment ¶ 9. The complaint contains plaintiff's original request for information, defendants' acknowledgement of the request, and plaintiff's appeal following defendants' failure to produce the requested material. Complaint count 1, ex. A-C. Defendants' reply to this request is unresponsive and plaintiff's motion for summary judgment on count 1 is therefore granted. Defendants to produce all material in their files relating to Michael Carmie Antonelli within the statutorily mandated period of ten days.

Finally, plaintiff has moved to dismiss without prejudice counts 18, 22, 29 and 32 of the complaint. The defendant has offered no objection and therefore those counts are dismissed without prejudice.

In summary, defendants' motion for summary judgment and plaintiff's cross motion for summary judgment are granted in part and denied in part. Counts 6, 10, 11, 13, 16, 17 and 36 are dismissed with prejudice. Counts 15, 25, 26 and 28 are dismissed without prejudice, and plaintiff is granted leave to reinstate if dissatisfied with defendants' response to the requests contained therein after production or denial and administrative appeal. Counts 18, 22, 29, and 32 are dismissed without prejudice. Defendants are ordered to respond to the requests in counts 2, 3, 7, 8, 19, 30, 31 and 33 by producing non-exempt documents and asserting with particularity any claimed exemptions within 30 days.*fn18 Plaintiff is granted summary judgment on count 1 and defendants are ordered to produce all documents requested in that count within ten days from the date of this order.


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