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MURPHY v. FBI

May 28, 1980

CONGRESSMAN JOHN M. MURPHY, Plaintiff,
v.
FEDERAL BUREAU OF INVESTIGATION, et al., Defendants.



The opinion of the court was delivered by: FLANNERY

MEMORANDUM

In this Freedom of Information Act ("FOIA") case, the plaintiff, a United States congressman, seeks the release of materials in the custody of the Federal Bureau of Investigation. The agency records at issue stem from the defendants' so-called "ABSCAM" investigation. Representative Murphy specifically requests the disclosure of all ABSCAM aural and video recordings in which he appears. The defendants' Vaughn index reveals that the government withholds four videotapes recording the activities of the plaintiff.

 The plaintiff represents in Congress New York State's 17th Congressional District. The district includes parts of lower Manhattan and all of Staten Island. On February 2, 1980, WNBC-TV of New York City, reported that FBI agents, posing as businessmen and Arab sheiks, passed bribe money to several members of Congress. In return for the money, the Congressmen allegedly promised to exert influence on behalf of the agent-imposters. Some of the meetings between the Congressmen and the undercover agents were videotaped and recorded. The undercover investigation was termed Arab-Scam, or ABSCAM.

 The newspapers reported the story on the next day. In a front page article, the New York Times identified the plaintiff as one of six legislators five congressmen and one senator targeted by the two year undercover operation. The Staten Island Advance, which serves the plaintiff's district, also highlighted the story on February 3 and in subsequent days.

 Presently before the court are cross-motions for summary judgment and a motion challenging the sufficiency of the Vaughn v. Rosen itemization. The plaintiff claims that release of the tapes is necessary to ensure a fair re-election campaign. Vitaliano Affidavit, paragraph 12. The government avers that exemptions (b)(3) and (b)(7)(A) of the FOIA, 5 U.S.C. § 552(b)(3) & (b)(7)(A), sanction nondisclosure of the tapes. For the reasons set forth below, the court agrees with the government and will enter summary judgment on behalf of the defendants.

 I. EXEMPTION THREE

 Exemption three of the FOIA allows a government agency to withhold records that are:

 
Specifically exempted from disclosure by statute, provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld.

 The collateral statute claimed by the government herein is Federal Rule of Criminal Procedure 6(e). *fn1" This law protects the secrecy of grand jury proceedings. It provides, subject to limited exceptions, that "matters occurring before the grand jury" shall not be disclosed.

 The defendants argue that on February 5, 1980, a grand jury convened in the Eastern District of New York. The plaintiff is among the objects of the grand jury investigation. In connection with its duties, the grand jury examined the videotapes requested by the plaintiff. Since Rule 6(e) requires that secrecy prevail pursuant to materials presented to the grand jury, the tapes are allegedly exempt from disclosure.

 The plaintiff maintains that Rule 6(e) only prohibits the disclosure of materials that constitute "matters occurring before the grand jury." The videotapes allegedly fall outside the parameters of this term because they do not reveal the inner workings, scope, or direction of the grand jury proceedings. Accordingly, Rule 6(e) arguably fails to bar the release of the tapes.

 It is beyond question that under certain circumstances Rule 6(e) allows the release of grand jury materials. These circumstances were explicated in Hiss v. Dept. of Justice, 441 F. Supp. 69 (S.D.N.Y.1977). The plaintiff therein attempted to employ the FOIA to seek the release of grand jury testimony recorded in 1947-48. The court ruled that FOIA cannot affect the traditional rule of grand jury secrecy. But the court noted that Rule 6(e) delineates three exceptions: 1) a government attorney in the performance of his duties; 2) a demonstration that grounds exist to dismiss an indictment because of irregularities in the grand jury proceedings; and 3) a matter preliminary to a judicial proceeding. Id. at 70.

 Beyond the express exceptions explicated within the text of Rule 6(e), courts also recognize that documents desired for their intrinsic value may possibly not reveal "matters occurring before the grand jury." The plaintiff in Walter, Conston, Schurtman & Gimpel, P. C. v. Dept. of Justice, 79 Civ. 2918 (S.D.N.Y. Oct. 3, 1979), advanced this argument. He maintained that documents sought for their inherent value, rather than for obtaining an insight to the grand jury proceedings, may be released. The court denied disclosure. It found that despite the plaintiff's avowed interest in merely learning the contents of the documents, production nonetheless "would severely compromise the ...


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