The opinion of the court was delivered by: GASCH
[EDITOR'S NOTE: The following court-provided text does not appear at this cite in 431 F. Supp.]
Upon consideration of all motions pending in this action and the memoranda of points and authorities filed in support thereof and in opposition thereto, and upon further consideration of the argument of counsel in open Court, the entire record herein, and for the reasons briefly set forth in the Court's Memorandum issued this day, it is by the Court this 5th day of February, 1977
ORDERED that the plaintiffs' motions to compel, to show cause, and for partial summary judgment be, and hereby are, denied; and it is further
ORDERED that the defendant's motion for summary judgment be, and hereby is, granted except insofar as herein below provided; and it is further
ORDERED that, with respect to plaintiffs' alternative argument that the "obstruction of justice" files should be segregated as to their factual content and then disclosed, plaintiffs shall file an appropriate motion in this connection within ten days of the date of this Order if they wish to further pursue said claim; and it is further
ORDERED that this action will be dismissed in its entirety should plaintiffs choose not to file a further motion with the Court.
Oliver Gasch, UNITED STATES DISTRICT JUDGE
This is an action arising under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as amended by Pub. L. 93-502, 88 Stat. 1561-1564. Plaintiffs seek access to records of the Federal Bureau of Investigation and of the Department of Justice which were compiled in the course of those agencies' investigations of matters surrounding the death of Karen Silkwood, an employee of the Kerr-McGee Corporation, a major manufacturer of plutonium and uranium fuels for nuclear reactors. Plaintiffs also seek documents related to the Department of Justice and FBI investigations of the contamination of Ms. Silkwood by plutonium and of the possibility of obstruction of justice in connection with these investigations. The three investigatory files are referred to as the "death investigation," "obstruction of justice," and "contamination" files by the parties and will be referred to in that manner by the Court.
The subject of these investigations is one which has apparently aroused considerable public -- and even congressional
interest. Karen Silkwood was employed at a Kerr-McGee plutonium fuel facility in Oklahoma where she was apparently quite active in her union's affairs. On November 13, 1974, in the midst of representing her union in ongoing contract negotiations with Kerr-McGee, Ms. Silkwood was killed in an automobile crash while allegedly en route to a meeting with a union official and a reporter for the New York Times. There apparently exists some evidence that her automobile may have been driven off the road by another car, but no other vehicle has ever been found. Further, a file of documents which Ms. Silkwood was reportedly carrying at the time of her death was never recovered.
Plaintiffs are National Public Radio, a nonprofit corporation providing network services to public radio stations nationwide, and Barbara Newman, a reporter for that organization. On May 1, 1975, they filed an FOIA request which sought access to the entire "death investigation" and "contamination" files.
These documents were (and, in part, remain) in the files of the FBI and of the Criminal Division of the Department of Justice. The latter agency granted plaintiffs' request only as to those documents which arguably did not constitute either inter- or intra-agency memoranda and letters, attorneys' notes and work product, or correspondence received by the Criminal Division. The FBI categorically denied access to all requested documents in its possession, with the exception of certain "public source information."
On June 10, 1975, plaintiff Newman appealed this disposition of her request to the Attorney General. On September 16, Deputy Attorney General Harold R. Tyler affirmed the decisions of the FBI and Criminal Division in large part; he did, however, grant plaintiffs access to one additional letter emanating from the Criminal Division and to fifty-eight additional papers of FBI records. The remainder of the Criminal Division and FBI "death investigation" and "contamination" files were withheld as exempted from disclosure under Exemptions 2 and 5, and 7(A), respectively, of the FOIA, 5 U.S.C. § 552(b)(2), (5), (7)(A).
Since much of the material sought by plaintiffs has now been released to them,
the only remaining matters contested by the parties involve the "contamination" file, which defendant has withheld in its entirety as exempt under § 552(b)(7)(A), and that portion of the Criminal Division's part of the "death investigation" file to which the parties refer as the "closing memoranda," withheld as exempt under § 552(b)(5). The parties have each moved for summary judgment on the "contamination" file issue and defendant has moved for summary judgment as to the entire case.