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ELY v. F.B.I.

April 10, 1987

DAVID ELY, PLAINTIFF,
v.
FEDERAL BUREAU OF INVESTIGATION, DEFENDANT.



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

OPINION ORDER

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.

Background

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.

I

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 ...


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