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ELY v. F.B.I.

United States District Court, Central District of Illinois, Springfield Division

April 10, 1987


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


Lexis and Westlaw tell us that Ely has been reported in 16 cases.*fn1

And that doesn't count the unreported ones!

Ely is a pro se gadfly.*fn2

This case is his fifth one in this Court alone — and he loses.

David Ely, a federal prisoner, brings this action pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, and the Privacy Act, 5 U.S.C. § 552a, challenging the withholding of records and exemptions claimed by the Defendant, the Federal Bureau of Investigation (FBI).

The FBI moves for summary judgment. Fed.R.Civ.P. 56. Motion allowed.


Ely's complaint seeks the disclosure of information deleted from 96 pages of documents produced by the FBI in response to Ely's request under the FOIA.*fn3 The FBI withheld the deleted information on the basis of a number of exemptions to the FOIA. Ely's complaint also requests the production of additional documents he says are being withheld by the FBI. That claim, however, has already been litigated in another court and will be given res judicata effect. This case deals only with the propriety of the exemptions claimed by the FBI, which was not at issue in the other court proceedings.*fn4

The Freedom of Information Act "sets forth a policy of broad disclosure of government documents in order to insure an informed citizenry, vital to the functioning of a democratic society." Kimberlin v. Dept. of Treasury, 774 F.2d 204, 206 (7th Cir. 1985), citing FBI v. Abramson, 456 U.S. 615, 621, 102 S.Ct. 2054, 2059, 72 L.Ed.2d 376 (1982). Under the Act, an agency must release information in its possession unless it falls within one of the nine statutory exemptions to the Act. Miller v. Bell, 661 F.2d 623, 626 (7th Cir. 1981), cert. denied, 456 U.S. 960, 102 S.Ct. 2035, 72 L.Ed.2d 484 (1982). The policy embodied by the Act favors disclosure; therefore, the exemptions are to be narrowly construed. Id.


In order to satisfy its burden of proving the applicability of the exemptions claimed by the FBI, the Government submitted two separate affidavits: each by Special Agent D.F. Martell. These affidavits contain a detailed explanation for the nondisclosure of each deleted segment of the documents produced to Ely. After reviewing these affidavits and Ely's evidence and objection to them, the Court finds that summary judgment in favor of the Government is appropriate without in camera inspection of the deleted portions of the documents. See Kimberlin, 774 F.2d at 210.

In camera review of documents is discretionary, see 5 U.S.C. § 552(a)(4)(B); the provision for such review is designed to be invoked only when the issue before the district court could not otherwise be resolved. NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 224, 98 S.Ct. 2311, 2318, 57 L.Ed.2d 159 (1978); Center for Auto Safety v. EPA, 731 F.2d 16, 22-23 (D.C.Cir. 1984). Government affidavits "are sufficient to justify summary judgment under the FOIA without in camera inspection where the affidavits (1) describe the withheld documents and the justification for nondisclosure with reasonably specific detail, (2) demonstrate that the information withheld falls logically within the claimed exemption, and (3) are not controverted either by contrary evidence in the record or by evidence of agency bad faith." Kimberlin, 774 F.2d at 210, quoting Stein v. Dept. of Justice & FBI, 662 F.2d 1245, 1253 (7th Cir. 1981). See also Ely v. Federal Bureau of Investigation, 781 F.2d 1487 (11th Cir. 1986).

In the present case, Martell's affidavits meet this standard: they describe in detail the justifications for nondisclosure, and indicate how the withheld information logically falls within the exemptions. In response, Ely does not level an attack upon the specific exemptions claimed by the FBI, but instead focuses upon "evidence" of agency bad faith. The Court will, therefore, turn to a brief discussion of Ely's major contentions.*fn5


A complaint Ely registers at numerous points in his pleadings is that the FBI withheld records without claiming exemptions for the material. To a certain extent, this argument is answered by Ely's prior litigation, which found that the FBI has either released all documents responsive to Ely's request, or has claimed exemptions from disclosure. (See End Note 4, supra). Most notably, however, Martell's affidavit establishes that the FBI did in fact claim exemptions for every item of information not released.*fn6 Ely's first complaint is therefore without merit.

Ely next contends that the confidential sources deleted from his records were not in fact confidential since they did not ask the FBI to withhold their names and the information they provided. In addition, Ely alleges that these sources were not given express assurances that their names and any data furnished would not be disclosed. This allegation, however, is completely unsupported by competent evidence, and Martell's affidavit establishes the contrary.*fn7

Information that would tend to identify confidential FBI sources is covered by 5 U.S.C. § 552(b)(7)(D) which exempts from disclosure:

  (7) Investigatory records complied for law enforcement purposes
  but only to the extent that the production of such records
  would . . . (D) disclose the identity of a confidential source
  and . . . confidential information furnished only by the
  confidential source.

Ely maintains that the Government failed to make the requisite showing of confidentiality. The Court does not agree.

In Miller v. Bell, our circuit noted that Congress enacted subsection (7)(D) for the specific purpose of preserving the personal privacy and confidentiality of police sources. Given that purpose, the Court concluded that "[u]nless there is evidence to the contrary in the record, we believe such promises of confidentiality are inherently implicit in FBI interviews conducted pursuant to a criminal investigation." 661 F.2d at 627. See also Kimberlin, 774 F.2d at 208. Under the Miller analysis, Ely's failure to provide any evidence that the sources deleted from the disclosed documents were anything other than confidential is fatal to his argument. Moreover, there is a realistic possibility that disclosure of this information or the names of the citizens could result in harassment and unwarranted invasions of privacy. Congress clearly intended that this prospect be avoided through the subsection (7)(D) exemption, which the Court finds was properly invoked by the FBI.

Ely finally attacks the sufficiency of Martell's affidavits. As stated previously, the Court believes that the affidavits set forth, in sufficient detail, a logical explanation for each of the claimed exemptions. Martell's affidavit of September 14, 1984, explains in coded form the exemptions and justifications for withholding material from disclosure. Although the affidavit is lengthy and fairly complex,*fn8 that complexity was due in no small part to the breadth of Ely's request and his continued accusations of wrongdoing by the FBI.

The Court concludes that Martell's affidavit meets the Stein test for proving the applicability of the FBI's claimed exemptions. Accordingly, Defendant's motion for summary judgment is ALLOWED.

The Clerk is ordered to enter judgment in favor of the Defendant and against the Plaintiff on all counts.


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