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PRATT v. WEBSTER

February 12, 1981

Elmer G. PRATT, Plaintiff,
v.
William H. WEBSTER et al., Defendants



The opinion of the court was delivered by: PARKER

MEMORANDUM OPINION

The plaintiff, Elmer G. Pratt, has filed this proceeding against the Federal Bureau of Investigation (FBI or Bureau) relying upon the provisions of the Freedom of Information Act (FOIA), 5 U.S.C. § 552, and the Privacy Act, 5 U.S.C. § 552a. He requests records pertaining to him or retrieved during the course of conducting a search under his name. Pratt is the former Deputy Minister of Defense for the Southern California Branch of the Black Panther Party (BPP). He is currently serving a life sentence at San Quentin Prison arising from convictions of murder and robbery in a State of California court. The plaintiff maintains innocence of these crimes and that the FBI has custody and possession of various documents that would establish his contention. He relied upon an alibi defense at his state court trial and claimed that at the time of the crimes for which he was convicted, he was elsewhere attending a meeting with Black Panther Party officials in Oakland, California. The crimes occurred in Santa Monica, California, several hundred miles removed.

 This proceeding has generated a staggering number of documents. The FBI has identified more than 1,000 documents, most several pages in length, in response to the plaintiff's request. These documents refer to Pratt by name or by one of three aliases: "Geronimo", "G" and "GEE". While most of the documents were released, some were withheld in their entirety. Substantial portions of many of the documents have been deleted.

 Based upon the documents released and two Vaughn indexes *fn1" filed in this proceeding, the Bureau has moved for summary judgment. In the latest index withholdings are based on exemptions (b)(1), (2), (7)(C), (7)(D), (7)(E) and (7)(F) of the FOIA. After a review of the application of these exemptions, as well as the memoranda of points and authorities and affidavits of the parties, the Court concludes that grant of summary judgment to the Bureau is inappropriate. The Court also rules that documents with deletions based on alleged national security grounds, exemption (b)(1), and to protect investigative methods, exemption (b)(7)(E), shall be submitted for an in camera inspection; that documents involving FBI counter-intelligence program activities redacted under exemption (b)(7), shall be disclosed in their entirety; and that the Bureau shall submit, as explained infra at 19-23, additional justification, explanation and clarification of certain aspects of the scope of its search.

 BACKGROUND FACTS

 On June 5, 1976 Pratt filed a FOIA/Privacy Act request with FBI Director Clarence Kelly for:

 
All files, records, memoranda, or other data or materials filed under my name or obtainable by your agency by searching through other files and materials for documents which contain my name.

 On May 20, 1977, 499 pages of redacted material were released to him. Pratt appealed certain deletions within the Bureau. He also requested a second search of specific FBI files, electronic surveillance indexes, identification records and information outside the time frame of records already provided. *fn2" More documents were released as a result of Pratt's appeal of the first request and the initial disposition and appeal of his second request. *fn3" This litigation resulted because Pratt and his counsel considered that the deletions made in the released documents did not comply with the FOIA and judicial determinations construing its scope.

 Following the Court's instruction, the Bureau submitted an affidavit indexing its exclusions in accordance with the Vaughn requirements. The Court determined that the indexing was inadequate and that a more refined submission was required. A revised index was filed in November 1979.

 The Bureau has moved for summary judgment, relying on the adequacy of this second Vaughn index. In opposition, Pratt alleges that: the revised index is still inadequate; the Bureau cannot invoke a (b)(7) exemption to redact any of the documents because of the illegal nature of the FBI activities as to him; and, in any event, the Bureau has failed to conduct a thorough and complete search for the requested documents. In turn, Pratt requests the Court to order discovery; that the FBI continue and exhaust its search; and that it file a supplemental Vaughn index.

 In the remaining portion of this Opinion, a description of the Bureau's revised index will be presented followed by a discussion and analyses of the arguments in opposition to the government's motion.

 THE REVISED VAUGHN INDEX

 The Bureau's November, 1979 index is comprised of affidavits of two FBI Special Agents, David Byerly and Philip Cook. Byerly, a supervisor in the FOIA/Privacy Act Branch of the Bureau, provided an affidavit explaining each deletion from every document released. *fn4" His affidavit was supplemented by a sworn submission of Special Agent Philip Cook. Assigned as a classifier of FBI national security material, Cook's affidavit provided an explanation of all information deleted in the interest of national security under FOIA exemption (b)(1). *fn5"

 The voluminous documentation of Pratt's activity that has been identified by the Bureau is a result of extensive investigations into his activities and activities of other organizations, such as the Black Panther Party, that he has had some relationship to. Six main files were maintained on Pratt, as well as "see" or cross references to him in files of other objects of FBI investigations. Electronic surveillance records of Pratt, resulting from wiretaps of various BPP offices were also compiled. These documents were indexed in twenty-one volumes.

 The six main files concerned national security, bank robbery conspiracy, passport falsification, fugitive status, and theft of government property. The Bureau released the national security file on the plaintiff in five volumes. These documents, 1 through 156, were listed as volumes AA(1) through AA(5) of the Vaughn index. *fn6" The documents covered an investigation based on information that Pratt was allegedly engaged in activities violative of certain provisions of Title 18 of the United States Criminal Code, including inciting rebellion or insurrection, conspiring to overthrow the government, and advocating the overthrow of the government. The documents, dating from January 1, 1969 to October 1, 1976, contain detailed and graphic reports on Pratt's activities.

 Because of concern that Pratt may have been involved in bank robberies, the Bureau maintained a bank robbery conspiracy file, indexed as documents 157 through 159 in volume BB. *fn7" Document 159 closes that investigation by concluding that there was no information on any BPP involvement in plotting bank robberies.

 Records relating to an investigation into possible passport falsification were released as documents 160 through 171 in volume CC. *fn8" Another file was maintained on the FBI's investigation into Pratt's fugitive status from August 1970 until he was apprehended in December 1970. *fn9" This file is composed of documents 172 through 195 in volume DD. The Bureau compiled documents 196 through 220 in volume EE on Pratt pursuant to an investigation into rioting and possession of firearms. *fn10" The sixth main file on Pratt contains records from a theft of government property investigation. *fn11" These are documents 221 through 278 in volume FF.

 The remaining records identified in the revised index fit into three categories. The first consists of four volumes containing "see" or cross references to Pratt in other files. These documents, 279 through 657a in volumes GG through JJ, are identifications of Pratt contained in the main files of other individuals or organizations that were the subject of FBI investigations. *fn12" Records pertaining to the Bureau's electronic surveillance tapes referred to as "ELSUR Logs" of BPP offices are the second category. These are documents 658 through 1233 in volumes KK through PP. *fn13" The final category consists of letters from FBI Director Hoover to the Attorney General requesting authorization to conduct wiretapping of various BPP offices and one BPP member. These are documents 1234 through 1239 in volume QQ. *fn14" No deletions were made in this last volume of the index.

 LEGAL ANALYSIS

 The Freedom of Information Act requires a de novo review by the district court reviewing an agency's decision to withhold documents. A document or a portion thereof can only be withheld from the requester if the information redacted falls within one of nine enumerated exemptions. 5 U.S.C. § 552(b).

 The burden is on the agency to demonstrate that the deleted material has been properly withheld. Holy Spirit Association for the Unification of World Christianity v. Central Intelligence Agency, No. 79-0151, slip op. 12-14 (D.C.Cir., Dec. 23, 1980); Baez v. United States Department of Justice, 208 U.S. App. D.C. 199, 647 F.2d 1328, at 1335, (D.C.Cir., 1980); Lesar v. United States Department of Justice, 204 U.S. App. D.C. 200, 636 F.2d 472, slip op. at 15 (D.C.Cir., July 15, 1980). These recent decisions also support the proposition that affidavits by responsible agency personnel, where complete, are to be accorded substantial weight by the Court. Baez, at 1335; Lesar at 481. Affidavits are complete if they demonstrate with reasonable specificity that the withheld material falls within the claimed exemption. Allen v. Central Intelligence Agency, 636 F.2d 1287, 1292 (D.C.Cir., 1980). Thus, the agency is entitled to summary judgment "if the description in the affidavits logically falls within the claimed exemption and if the information is neither controverted by contrary evidence in the record nor by evidence of agency bad faith." Baez, at 1335; see Lesar, at 481. *fn15"

 Exemption (b)(1)

 The (b)(1) exemption, 5 U.S.C. § 552(b)(1), protects from disclosure matters that are "(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order." Executive Order 12065 currently governs classifications on national security grounds. 3 C.F.R. 190 (1979). Classified documents must be designated "top secret", "secret", or "confidential". *fn16" Sixty-four documents were redacted under the Executive Order. The deletions are indexed on the cover page for each document and are also reviewed, document-by-document, in the Cook affidavit.

 Information withheld under exemption (b)(1), must satisfy both the procedural and substantive criteria of the Executive Order. The procedural criteria require that the classified document show:

 
(a) the identity of the original classifying authority;
 
(b) the office or origin;
 
(c) the date or event for declassification review; and
 
(d) one of the three classification designations (discussed supra at note 16).

 section 1-501. The substantive criteria under section 1-301 require that the information pertain to one of the following subject ...


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