The opinion of the court was delivered by: GREENE
This is an action under the Freedom of Information Act (5 U.S.C. § 552) and the Privacy Act (5 U.S.C. § 552a) in which the plaintiff seeks to compel the disclosure of FBI files pertaining to him. A substantial amount of material was released administratively but a number of documents were withheld in whole or in part. The parties have filed voluminous memoranda and other documents and the Court has heard oral argument.
The FBI defends the withholding of many of the documents under the national security exemption to the Freedom of Information Act (Exemption 1) and that of others under the law enforcement exemption (Exemption 7). The principal issue with regard to these exemptions is whether the Federal Bureau of Investigation is and has been acting in good faith. In this regard, plaintiff claims that there were and are no legitimate national security or law enforcement reasons either for the government's investigation of him or for the government's present withholding of the files. In his view, that investigation was "bogus from the beginning,"
and designed solely to discredit him as an opponent of State Department policy toward Greece. These assertions are not frivolous on their face,
and the Court must therefore resolve the good faith issue.
In this connection, plaintiff requests, and the FBI vigorously opposes, an in camera inspection of the relevant documents. The Court has carefully reviewed the documents filed on behalf of defendant, including the affidavits of FBI Special Agents James H. King and Jerry M. Graves, and it has concluded that it cannot rely on these papers alone in making its decision. The affidavits and other document submitted by defendant are insufficiently specific to permit the drawing of definitive conclusions, particularly in light of the basic conflict referred to above. Accordingly, the Court has conducted an in camera inspection of the disputed documents.
Twenty-three documents have been withheld, in whole or in part, under the national security exemption.
All of these documents were classified in accordance with the procedural requirements of Executive Orders 11652 and 12065. As concerns substance, defendant contends, and its affidavits aver, that release of the documents could reasonably be expected to cause identifiable damage to the national security.
The standard of review with respect to classified documents has been fixed a number of times by the U.S. Court of Appeals for this Circuit. As that court stated in Halperin v. CIA, supra, at 148,
To be sure, the court's remarks were made in cases where the trial courts had ruled strictly on the papers, without the benefit of an in camera inspection. However, the limited scope and competence of judicial officers is as true in the one situation as in the other, and the rule of deference applies a fortiori where the Court has actually viewed the documents.
Within this general framework, the Court must still consider, however, whether release on national security by the agency is made in bad faith, where, as is true here, the agency's statements are called into question by some contradictory evidence. See Halperin, supra, at pp. 147, 148. Similarly, Exemption 7 is not available if the documents in question were not compiled "for law enforcement purposes," that is, if the agency was not gathering the information in the good faith belief that the subject may violate or had violated federal law. Cf. Weissman v. CIA, 184 U.S. App. D.C. 117, 565 F.2d 692, 694-95 (D.C. Cir. 1977).
Plaintiff asserts that the FBI inquiry here was conducted for the purely political purpose "to "get' something on an embarrassing opponent of the State Department policy favoring the Greek dictatorship"
obviously not a legitimate law enforcement reason. Defendant claims, to the contrary, that the investigations of plaintiff were conducted strictly for law enforcement purposes. The Court has examined the documents with this conflict between the parties in mind.
It is necessary, first of all, to draw a distinction between the purpose of the investigation and the purpose of the act of withholding the documents. Even if it were true, as plaintiff claims, that the investigation was bogus, it would not necessarily follow that he would be entitled to the release of all the documents irrespective of the consequences in terms of the types of injury described in note 4 supra. Thus, the identity of sources could well be subject to withholding under Exemption 1 (or possibly Exemption 3) even if the particular investigation in which the source participated did not meet the FOIA standards.
Some of the material sought by plaintiff is in this category and may be subject to withholding on that basis alone.
In any event, the Court finds, based upon its review of the documents, that the investigation of plaintiff by the FBI was not a mere sham designed to intimidate or embarrass him in his role of critic of Greek or American policy. The information available to the FBI could lead a reasonably prudent government official to conclude that plaintiff may have been violating the Foreign Agents Registration Act, that he might be subject to deportation, or that by his contacts with and financial support from others he might be involved in improper relationships with foreign powers.
The documents in plaintiff's file indicate that various officials were operating on such assumptions. To be sure, to an extent conclusions in that regard are bound to be subjective, and the Court cannot, in this FOIA action, review what was actually in the minds of those who ordered plaintiff investigated or continued with that investigation once it had begun.
But based upon the objective factors on the public record and those gleaned from the in camera inspection the Court cannot affirmatively find that the FBI and those making requests of it were acting in bad faith. See Hayden v. National Security Agency, 197 U.S. App. D.C. 224, 608 F.2d 1381, 1388 (D.C. Cir. 1979); Baez v. U. S. Dept. of Justice, supra, at pp. 1332-1333.
As the court said in Irons v. Bell, 596 F.2d 468, 474 (1st Cir. 1979),
... we are hard pressed to conceive of a standard that would enable a district court to distinguish at an in camera proceeding between a colorably justifiable investigation that turned out to be a blind alley ...