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WEISBERG v. U.S. DOJ

October 5, 1977

HAROLD WEISBERG, Plaintiff,
v.
U.S. DEPARTMENT OF JUSTICE et al., Defendants



The opinion of the court was delivered by: PRATT

 This matter is before the Court on defendants' motion for summary judgment. Plaintiff has brought suit under the Freedom of Information Act ("FOIA") to obtain materials relating to scientific and ballistics tests alleged to have been performed on items of evidence in the assassination of President John F. Kennedy. 5 U.S.C. § 552(b)(7) (Supp. V 1975). The defendants are the United States Department of Justice, to which plaintiff has directed his requests for laboratory records of the Federal Bureau of Investigation, and the United States Energy Research and Development Administration ("ERDA"), to which plaintiff has directed requests for records of the Atomic Energy Commission ("AEC"), ERDA's predecessor agency. *fn1"

 In moving for summary judgment, the Government bears the burden of demonstrating that no genuine issue of material fact impedes its right to judgment as a matter of law. Fed. R. Civ. P. 56(c); Bloomgarden v. Coyer, 156 U.S. App. D.C. 109, 479 F.2d 201, 208 (1973). Although mere assertions in the pleadings will not suffice to defeat a motion for summary judgment, Dewey v. Clark, 86 U.S. App. D.C. 137, 180 F.2d 766, 770 (1950), matters of fact are to be viewed in the light most favorable to the party opposing the motion. Nyhus v. Travel Management Corp., 151 U.S. App. D.C. 269, 466 F.2d 440, 442 (1972); Semaan v. Mumford, 118 U.S. App. D.C. 282, 335 F.2d 704, 705 n.2 (1964).

 I. BACKGROUND OF THE ACTION.

 Plaintiff's initial quest for scientific investigatory data related to the assassination of President Kennedy was frustrated in the courts on the ground that the data sought lay within the purview of FOIA exemption seven, covering investigative matter. Weisberg v. United States Department of Justice, 160 U.S. App. D.C. 71, 489 F.2d 1195 (1973) (en banc), cert. denied, 416 U.S. 993, 40 L. Ed. 2d 772, 94 S. Ct. 2405 (1974); see Act of June 5, 1967, Pub. L. No. 90-23, § 1, 81 Stat. 54 (current version at 5 U.S.C. § 552(b)(7) (Supp. V 1975)). Congress subsequently narrowed the scope of exemption seven, and plaintiff renewed his requests. Act of Nov. 21, 1974, Pub. L. No. 93-502, § 2, 88 Stat. 1563, amending 5 U.S.C. § 552(b)(7) (1970). On July 15, 1975, this Court dismissed the action as moot, and plaintiff took an appeal. A panel of the United States Court of Appeals for the District of Columbia Circuit reversed, and remanded for further proceedings. Weisberg v. United States Department of Justice, 177 U.S. App. D.C. 161, 543 F.2d 308 (1976). The Court of Appeals identified five categories of investigative tests as to which plaintiff had made demands "which raise material factual questions still in dispute." Id. at 163, 543 F.2d at 310. As the Court of Appeals noted, however, there remain other categories of tests, such as the microscopic examinations performed on certain items of evidence, as to which plaintiff asserts his requests have not evoked satisfactory response. Id. at 164, 543 F.2d at 311. These categories, as well as the five enumerated in the Court of Appeals opinion, must figure in consideration of the motion for summary judgment. In addition to identifying several of the factual areas to be explored on remand, the Court of Appeals specified an exploratory technique, namely the taking of the testimony, by deposition or otherwise, with an opportunity for cross-examination in any case, of the individuals who actually conducted the tests, the results of which plaintiff has requested. Id. at 163, 164, 543 F.2d at 310, 311.

 In February and March, 1977, plaintiff took the depositions of four former and present employees of the Federal Bureau of Investigation laboratory, all of whom worked directly with evidence associated with the assassination. The four are Robert A. Frazier, employed as a special agent in the laboratory's firearms and toolmarks unit during the investigation of the assassination, and retired from the FBI as of April 1975; John F. Gallagher, assigned to the laboratory's spectrographic unit during the investigation, and retired as of January 1975; Lyndal L. Shaneyfelt, assigned as a documents examiner and photographic specialist for the laboratory between 1955 and 1975, when he retired from the Bureau; and Cortlandt Cunningham, formerly a special agent supervisor in the firearms and toolmarks unit during the investigation, and presently chief of the unit. Frazier and Cunningham were deposed February 24, 1977, and Gallagher and Shaneyfelt were deposed March 28, 1977. At each deposition save that of former Special Agent Gallagher, examination was by plaintiff's counsel only, with occasionally interposed objections from counsel for the defendants. At a hearing March 30, 1977, counsel for plaintiff indicated that no further depositions of FBI employees who had participated in the Bureau's investigation were planned. *fn2" Weisberg v. United States Department of Justice, No. 75-226, Tr. at 4 (D.D.C. March 30, 1977). These representations controvert the suggestion in an affidavit of the plaintiff that "[this] Court refused me the depositions my counsel and I consider necessary to meet what I regard as the mandate of the court of appeals . .." Affidavit of Harold Weisberg para. 165, at 34 (July 28, 1977) [hereinafter "Weisberg Affidavit"]. Read broadly, the mandate of the Court of Appeals was to resolve whether the data sought exist on "the basis of the best available evidence, i.e., the witnesses who had personal knowledge of events at the time the investigation was made." 177 U.S. App. D.C. at 164, 543 F.2d at 311. Plaintiff has not sought to depose any such witness other than the four whose depositions were taken. To borrow the metaphor employed by the Court of Appeals in its opinion above, the legal engine of cross-examination has done its work on plaintiff's behalf with respect to witnesses with direct knowledge of the FBI investigation into the President's assassination. 177 U.S. App. D.C. at 164, 543 F.2d at 311. The issue devolves to what the evidence adduced in the four depositions establishes, and thence to whether there now remains a genuine issue as to whether the Government has complied with the strictures of the FOIA.

 II. THE EVIDENCE ADDUCED.

 The testimony of all four deponents related not only to specific pieces of assassination evidence and the tests performed, or not performed, upon them, but also to the procedures, and occasionally lack of procedures, employed in those sections of the FBI laboratory with which the deponents were familiar. These laboratory procedures bear significantly on the question whether much of the material plaintiff seeks exists.

 Laboratory Procedures. The laboratory's Scientific Analysis Section, was known at the time of the investigation as the Physics and Chemistry Section; then, as now, the section comprised several disparate units, including the firearms and toolmarks unit, and the spectrographic unit, which in 1963-64 was responsible for both emissions spectrography and neutron activation analysis. Cunningham Deposition, at 4-5. During the investigation of the Presidential assassination, investigating agencies in the field -- the Dallas Police Department, the Secret Service, and the FBI -- forwarded the evidence to the FBI laboratory, in some instances directly to the firearms and toolmarks unit. Frazier Deposition, at 5, 7-8; Cunningham Deposition, at 8. Ordinarily, the evidence would be accompanied by a statement of the matters sought to be ascertained through laboratory testing, as, for example, the presence of gunpowder on a piece of evidence. Frazier Deposition, at 6, 8. The decision as to the specific tests to be conducted, however, was made within the laboratory. Id. at 8-9; Cunningham Deposition, at 8-9; Gallagher Deposition, at 26-27. The decisionmaking process as to which tests would be appropriate apparently was highly informal: in some cases, Frazier, the laboratory examiner with direct responsibility for the Physics and Chemistry Section's efforts in the investigation, conferred with his superiors on the tests to be performed, Cunningham Deposition, at 8-9, and in others, he and the individual examiners who would conduct the tests conferred on which tests to perform. Frazier Deposition, at 8; Gallagher Deposition, at 27. In still other instances, if the individual examiner determined that tests outside his domain were called for, he and his supervisor (Frazier, in most cases) would approach examiners in the other units with jurisdiction over the requisite type of testing. Cunningham Deposition, at 10; Frazier Deposition, at 8-9; Shaneyfelt Deposition, at 14. Only rarely were these conferences on tests to be performed recorded in communications between the conferees, or in notes made by one of them. Cunningham Deposition, at 10; Frazier Deposition, at 8-9; Gallagher Deposition, at 27-28.

 The tests determined to be appropriate for a given item of physical evidence typically were conducted by examiners working individually, or under the direct supervision of the individual examiner. Cunningham Deposition, at 10; Frazier Deposition, at 10. Three examiners in the firearms and toolmarks unit collaborated on the testing within that unit, all three having been present during all tests conducted by the unit on assassination evidence, save a velocity test. Cunningham Deposition, at 53. Several examiners tested items of evidence in the spectrography unit, although they appear to have worked separately. Gallagher Deposition, at 7, 35-37.

 Just as there was no established procedure for deciding which tests were to be performed on a particular item of evidence, there was no requirement that test results be expressed in a particular format, or expressed at all if the results were insignificant. In most instances, the examiner performing a test took notes during the testing. Cunningham Deposition, at 11; Frazier Deposition, at 10; Gallagher Deposition, at 38. However, all deponents testified to not having made notes on results they deemed insignificant or insufficiently reliable. Cunningham, for example, testified to his practice of making notes on a weapon's operating condition only if the weapon was not in normal working order. Cunningham Deposition, at 21. Gallagher explained the absence of observation data in a neutron activation analysis folder by suggesting that he might have skipped the step of noting down the readings and done the tabulations in his head. Gallagher Deposition, at 61-62. He indicated later that he did not report a thirty percent variation in primer residue data between shells because he did not consider the variation significant. Id. at 114. Shaneyfelt testified that he had not submitted a report on the four frames allegedly spliced out of the Zapruder film of the assassination because the film print from which he had worked was complete. Shaneyfelt Deposition, at 21.

 What an examiner did with test results likewise varied. In many instances, the examiner dictated a report on the tests conducted, either for use on its own or for incorporation in a more comprehensive report prepared by the examiner's superior. Frazier Deposition, at 11; Gallagher Deposition, at 38. Gallagher, however, indicated that he occasionally submitted data directly to Special Agent Frazier who transmuted the figures into prose. Gallagher Deposition, at 38. When the examiner himself prepared the report, he did not always include in it all the results obtained, as when the testing was done for "background purposes," Gallagher Deposition, at 57; when flaws in the testing itself cast the results in doubt, see id. at 71, or when the results would simply not be of value, in the examiner's judgment. Cunningham Deposition, at 47. In some instances, the examiner's failure to make a report is unexplained. See Cunningham Deposition, at 33, 53; Gallagher Deposition, at 73-74.

 After the report was prepared, one copy went into FBI files, another went to the "original contributor" of the item of evidence on which the report was based (generally the FBI's Dallas field office), and a third went to the examiner or examiners responsible, for them to retain informally with their notes of the tests. Cunningham Deposition, at 11-12, 17; Frazier Deposition, at 12, 15; Gallagher Deposition, at 86-87. Whether the Warren Commission received the actual reports, and how the reports the Commission received were transmitted, varied widely. Former Special Agent Frazier recalled the "mechanics" of the process as being, first, that the laboratory forwarded the report to the Dallas field office; next, that the Dallas office incorporated the report into its report to the Commission, and finally, that the latter report was transmitted to the Commission. Frazier Deposition, at 19-20. In practice, however, there appears to have been substantial, continuing and direct contact between laboratory personnel and the Commission. Cunningham Deposition, at 49-50; Frazier Deposition, at 20-21; Shaneyfelt Deposition, at 8. Frazier indicated that several laboratory employees, whose identities he could not recall, served as liaison between the laboratory and the Commission. Frazier Deposition, at 20. Cunningham stated that he "generated some correspondence" with the Commission every day during the laboratory's participation in the investigation. Cunningham Deposition, at 51. Shaneyfelt indicated that his reports went to the Commission via his section chief, and that he testified to the Commission, either live or by deposition, on all examinations he conducted. Shaneyfelt Deposition, at 8-9. In his affidavit of May 13, 1965, John W. Kilty, special agent assigned to the FBI laboratory in a supervisory capacity, stated that plaintiff had been told that all final FBI laboratory reports in the pertinent categories of testing had been furnished to the Commission. However, there apparently was no monitoring system known to deponents to log the transfer of final reports to the Commission, and no custodian within the laboratory to collect final laboratory reports. Frazier Deposition, at 68. It is clear, on the other hand, that not all examiners' observation notes went to the Commission, the rule being that examiners retained their notes except when the supervisor prepared a report directly from the notes. Cunningham Deposition, at 47, 52-53; Frazier Deposition, at 15; see Gallagher Deposition, at 73, 107. One instance of the latter occurred when Frazier used Gallagher's worksheets to prepare a report on testing of a bullet fragment; both the worksheets and the report went to the Commission, though only Frazier appeared before the Commission. Frazier Deposition, at 42-44; Gallagher Deposition, at 82, 84. Finally, neither observation notes, worksheets, nor final reports were distributed among units within the laboratory, absent a specific reason. Cunningham Deposition, at 12-13; Frazier Deposition, at 15, 18. Former Special Agent Gallagher testified that even within the spectrographic unit one examiner's report on testing would not necessarily, or even customarily, have been circulated among the other examiners in the same unit. Gallagher Deposition, at 7-8. An examiner who performed tests on a particular item of evidence thus might be unaware whether other units within the laboratory had performed other tests on the same item. E.g. Cunningham Deposition, at 22-23; Gallagher Deposition, at 6-7, 26; Shaneyfelt Deposition, at 16.

 Tests Performed on Assassination Evidence. The Court of Appeals opinion remanding this case for further consideration and testimony adverts to five areas of continuing factual dispute [ 177 U.S. App. D.C. at 163-64, 543 F.2d at 310-11]:

 
(1) Final reports of spectrographic analyses;
 
(2) Reports on neutron activation analyses of ...

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