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January 21, 1974

Fred B. BLACK, Jr., Plaintiff,

Charles R. Richey, District Judge.

The opinion of the court was delivered by: RICHEY


 This suit pertains to the admitted electronic surveillance of the Plaintiff's suite in the Sheraton Carlton Hotel in Washington, D.C. by FBI agents between February 7, 1963 to April 25, 1963. The discovery of certain FBI files has been the central controversy in this case since its inception seven years ago. The Court has considered two previous motions to compel. The first, a motion to compel answers to interrogatories and compel production was denied on the ground that the information sought was protected by the Informer's Privilege. 47 F.R.D. 263 (D.D.C 1969) (Sirica, C.J.). The second motion sought to compel answers regarding the extent of the government's investigation of the Plaintiff at the time of the electronic surveillance, and also sought information concerning the "leads" the FBI developed as a result of the surveillance. The Court denied this motion on the grounds that the Plaintiff's showing of his need for the information did not outweigh the public's interest in preventing disclosure. 50 F.R.D. 130 (D.D.C. 1970) (Sirica, C.J.).

 On July 10, 1973, this Court ordered the United States to allow the Plaintiff to inspect and copy: (1) all documents containing leads obtained from the eavesdropping, including the FBI reports of April 17, 1963 and July 12, 1963; (2) all communications in response to the eavesdropping material, including any airtels the Washington, D.C. office of the FBI received in response to the airtels it sent out requesting information concerning the Plaintiff; and (3) all documents relating to the leaving in place of the microphone after April 25, 1963 and any subsequent activation of the microphone. As of this date the United States has refused to comply with this order. It has refused to do so based on its claim of executive privilege which was made in an affidavit by the then Attorney General Elliot Richardson and filed October 19, 1973. The affidavit claims executive privilege as to the remainder of the file -- that which had not previously been disclosed.

 The Court has granted the Plaintiff's Motion for Partial Summary Judgment on the issue of liability, since the United States has admitted that it conducted the surveillance and disseminated the information obtained as a result of the surveillance. The sole issue remaining is the question of damages. The Plaintiff maintains that the documents he seeks are necessary to substantiate his claim for damages caused by the dissemination of the surveillance information and its fruits. Earlier, the Court felt the information the Plaintiff needed could be obtained without disclosure of the documents. The Court, therefore, found that the Plaintiff's need did not outweigh possible public interest in maintaining the confidentiality of the files. However, the suggested alternative -- deposing the FBI agents involved in the surveillance regarding dissemination of the information -- has proved to be an inadequate method of obtaining the necessary evidence.

 In considering the question of executive privilege, the Court must resolve three questions: (1) Is there a recognized claim of executive privilege; (2) Is the claim properly invoked; and (3) Is the claim applicable under the circumstances of this case.

 The Attorney General's affidavit does not state the basis on which he rests his claim of executive privilege. The claim can be founded upon the constitutional basis of separation of powers or upon a statutory provision, i.e. the Housekeeping Act, 5 U.S.C. § 301, or the Freedom of Information Act exemptions, 5 U.S.C. § 552(b). *fn1" The Court assumes the claim rests upon the broader constitutional basis.

 Without digressing into a lengthy analysis of the scope of the privilege, suffice it to say that the privilege is a discretionary one based upon the constitutional doctrine of separation of powers among the executive, judicial and legislative branches of the Government. It exempts the executive from disclosure requirements applicable to the ordinary citizen or organization, where such exemption is necessary to the discharge of highly important executive responsibilities involved in maintaining governmental operations. Carl Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena, 40 F.R.D. 318 (D.D.C. 1966). The privilege applies not only to the obvious -- military and diplomatic secrets -- but also includes documents integral to an appropriate exercise of the executive's domestic decisional and policy making functions -- those documents reflecting the frank expression necessary in intra-governmental advisory and deliberative communications. United States v. Article of Drug, etc., 43 F.R.D. 181, 190 (D. Del. 1967); Carl Zeiss, supra ; Rosee v. Board of Trade of City of Chicago, 36 F.R.D. 684, 689 (N.D. Ill. 1965); United States v. Procter & Gamble Company, 25 F.R.D. 485, 489 (D.N.J. 1960); See United States v. Reynolds, 345 U.S. 1, 73 S. Ct. 528, 97 L. Ed. 727 (1953); Republic of China v. National Union Fire Insurance Co., 142 F. Supp. 551 (D. Md. 1956); United States v. Burr, 25 Fed. Cas. p. 30, No. 14,692d (C.C.D. Va. 1807).

 However, the claim of executive privilege is not absolute. E.g., Nixon v. Sirica (United States v. Sirica) (In Re Grand Jury Proceedings), D.C. Cir., 159 U.S. App. D.C. 58, 487 F.2d 700 (decided October 12, 1973). The Court must determine whether the circumstances are appropriate for the claim of privilege. E.g., Reynolds, supra; Nixon, supra. Recognition of the claim requires a delicate balancing of competing interests; the public's interest in preserving confidentiality to promote open communication necessary for an orderly functioning of the government, and the individual's need for disclosure of particular information. The question at the core of any claim of executive privilege is whether the damage resulting from disclosure outweighs the need for a just resolution of a legal dispute.

 In the course of its consideration of the claim, the Court has given the requisite thoughtful regard to the Attorney General's affidavit describing the documents and stating the reasons for maintaining confidentiality. Carl Zeiss, supra, 40 F.R.D. at 327, and cases cited therein. This Court is reluctant to act in any manner which could appear inconsistent with the Court's recognition of the affiant's widely acknowledged personal integrity. Furthermore, the Court is reluctant to employ its power to force an executive officer to disclose reasoning or other considerations which underlie a decision she was fully authorized to make. However, in the instant case, the Court is faced with two flaws in the claim. First, the claim was not asserted in the proper manner. Second, the claim seeks to shelter improper, unauthorized acts from disclosure.

 A. The Claim Was Improperly Asserted

 The Attorney General's affidavit claims the privilege as to all of the FBI file which has not been disclosed. The file is approximately 6,000 pages long. The affidavit subdivides all the documents in the file into eight general categories. It then discusses in very general terms the reasons for preserving the confidentiality of each category of documents as a whole. The reasons for nondisclosure include "informer's privilege", inter-office memoranda, investigatory file, or irrelevancy to the case. There is no specific mention of the ...

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