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RAY v. UNITED STATES DOJ

September 17, 1982

JAMES E. RAY, Plaintiff,
v.
UNITED STATES DEPARTMENT OF JUSTICE, Defendant



The opinion of the court was delivered by: RICHEY

 UNITED STATES DISTRICT JUDGE, CHARLES R. RICHEY.

 This case is before the Court on Cross Motions for Summary Judgment. For the reasons set forth herein, both Motions shall be granted in part.

 BACKGROUND AND ANALYSIS

 Plaintiff has filed numerous requests under the Freedom of Information Act ("FOIA") 5 U.S.C. § 552 and the Privacy Act ("PA") 5 U.S.C. § 552a, for information which he claims will exculpate or tend to exculpate him in the killing of Dr. Martin Luther King. Seven specific requests are at issue in this suit. The requests will be considered in chronological order.

 On October 15, 1979 plaintiff requested access to (a) the police files pertaining to individuals who threatened the life of Dr. King; (b) information related to the police investigation of the killing; and (c) material classified under Executive Order 11652. This material is the same information that was held to be exempt from disclosure under FOIA in Lesar v. Department of Justice, 455 F. Supp. 921 (D.D.C. 1978) aff'd 204 U.S. App. D.C. 200, 636 F.2d 472 (D.C. Cir. 1980). Plaintiff acknowledges this fact in paragraph 3 of his complaint where he states: "The plaintiff requested the release to him of all documents not released to Lesar." But, a District of Columbia District Court, in a decision affirmed by the Court of Appeals, has already determined that the documents plaintiff seeks are exempt from disclosure. Thus, under the doctrine of stare decisis the Court need not consider the question anew.

 In plaintiff's third request, on March 13, 1979, he sought access to all files concerning Percy Foreman, Esquire. *fn2" The Department of Justice ("DOJ") Criminal Division conducted a search of its records and informed plaintiff that the index indicated that there was one file answering this description, however, that file could not be located. Consequently, there is no information being withheld, rather, the information plaintiff seeks is missing. Moreover, the Court finds that should the defendant locate such file or files, the plaintiff is not entitled to receive them. The PA provides that information such as that which plaintiff seeks may not be disclosed unless the individual about whom the information is concerned authorizes such disclosure. 5 U.S.C. § 552a(b). Mr. Foreman has not consented to release of this information. Additionally, FOIA exemption 6 prevents release of "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(6). See also, 5 U.S.C. § 552(b)(7)(C) (investigatory records exempt from disclosure if release would constitute an unwarranted invasion of personal privacy). Release of the information that plaintiff requests would constitute just such an invasion of privacy. The information is thus exempt from disclosure. *fn3"

 Plaintiff's request was also directed to the Executive Office of the United States Attorney ("EOUSA"). That office advised plaintiff that it would not even confirm or deny the existence of the material plaintiff requested absent a waiver from Mr. Foreman. As previously noted, Mr. Foreman did not provide such a waiver. Thus, in accordance with the analysis set forth above, the Court finds that the defendant acted properly in dealing with plaintiff's third request.

 In a letter dated May 2, 1980, plaintiff made his fourth request. He petitioned for access to certain documents of the Special Task Force reviewing the events surrounding the King assassination. The defendant properly denied this request that it was duplicative of plaintiff's October 15, 1979 request and sought documents already determined to be exempt from disclosure in Lesar, supra.

 Plaintiff's fifth request, on January 15, 1981 sought access to records relating to the efforts of the State of Tennessee to transfer him to federal custody. Plaintiff contends that his requests "were never answered substantially." The Court holds that the defendant responded to plaintiff's request to the full extent required by law. Plaintiff's request was forwarded to a number of different government offices. The first of these, the Criminal Division of the DOJ informed plaintiff that it had no records responsive to his request. The second office, EOUSA, referred the petition to the Office of the Attorney General and the Bureau of Prisons. The Office of the Attorney General released all relevant documents. The Bureau of Prisons released all documents except one. Upon in camera inspection the Court finds that the document that was withheld was properly retained under FOIA exemption 5. 5 U.S.C. § 552(b)(5). The disputed document was a memorandum from the General Counsel to the Director of the Bureau of Prisons. As such, it is exempt from disclosure as attorney work product. See Coastal States Gas Corp. v. Department of Energy, 199 U.S. App. D.C. 272, 617 F.2d 854, 862 (D.C. Cir. 1980).

 Plaintiff's sixth request on April 20, 1981 sought access to documents pertaining to DOJ representation of Conrad Baetz in Ray v. United States Department of Justice, C.A. No. 80-0963 (E.D. Miss.). Both the EOUSA and the Civil Division of the DOJ -- the agencies to which the request was referred -- made full disclosure of all documents responsive to the request.

 Plaintiff made his seventh and final request on May 7, 1981, seeking access to a personal file concerning Congressman Louis Stokes. *fn4" The FBI informed plaintiff that the PA required written authorization from the individual whose file was requested before the file would be released. 5 U.S.C. § 552a(b). Because such authorization was not forthcoming, the FBI did not act further upon plaintiff's request. The Court holds that the FBI acted properly and lawfully in this regard.

 In addition to plaintiff's specific allegations related to the delineated requests discussed above, Plaintiff's Motion for summary judgment alleges generally, that defendant has failed to provide accurate information as to the documents in its possession. Relying upon Pratt v. Webster, 508 F. Supp. 751 (D.D.C. 1981) plaintiff contends that the Court should require the DOJ to submit an affidavit stating whether or not certain files contain information about plaintiff. However, plaintiffs reliance on Pratt is misplaced. The plaintiff in Pratt introduced sufficient evidence to "raise serious and sufficient enough doubts about bad faith to ...


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