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SHAW v. U.S. DEPT. OF STATE

February 28, 1983

GARY SHAW, Plaintiff,
v.
U.S. DEPARTMENT OF STATE, et al., Defendants; BERNARD FENSTERWALD, JR., Plaintiff, v. U.S. DEPARTMENT OF JUSTICE, Defendant



The opinion of the court was delivered by: GREEN

 Plaintiffs in these consolidated cases have long been investigating the mysterious circumstances surrounding the assassination of President John F. Kennedy. To further their search, and pursuant to the Freedom of Information Act, 5 U.S.C. § 552 ("FOIA" or "Act"), plaintiffs requested access to records in the possession of defendants pertaining to several individuals allegedly part of a plot by exiled French Secret Army terrorists to murder the American President. *fn1" Now before the Court are defendants' motions for summary judgment and plaintiffs' oppositions thereto.

 In any FOIA case, the Court is to "determine the matter de novo, and . . . the burden is on the agency to sustain its action." 5 U.S.C. § 552(a)(4)(B) (1976). Summary judgment may be granted if the moving party proves that no substantial and material facts are in dispute and that he is entitled to judgment as a matter of law. McGehee v. Central Intelligence Agency, 697 F.2d 1095, 1100, 225 U.S. App. D.C. 205 (D.C. Cir. 1983); Weisberg v. United States Dep't of Justice, 200 U.S. App. D.C. 312, 627 F.2d 365, 368 (D.C. Cir. 1980); Founding Church of Scientology v. National Security Agency, 197 U.S. App. D.C. 305, 610 F.2d 824, 836 (D.C. Cir. 1979). To prevail in a FOIA suit, "the defending agency must prove that each document that falls within the class requested either has been produced, is unidentifiable or is wholly exempt from the Act's inspection requirements." Id., quoting National Cable Television Ass'n v. FCC, 156 U.S. App. D.C. 91, 479 F.2d 183, 186 (D.C. Cir. 1973) (footnote omitted).

 Defendants Department of State (State), the Immigration and Naturalization Service of the Department of Justice (INS) and the Drug Enforcement Agency of the Department of Justice (DEA) *fn2" maintain that they were unable to locate any records with the identifying information provided by plaintiffs. Plaintiffs' claims against those agencies concern the adequacy of the search performed.

 Defendants the Federal Bureau of Investigation (FBI) and the Central Intelligence Agency (CIA), however, have withheld some documents in their entirety and some portions of documents, relying on particular exemptions to the Act. Affidavits have been submitted demonstrating the applicability of the exemptions invoked and have been given the requisite "substantial weight" in the reviewing process. See, e.g., Hayden v. National Security Agency, 608 F.2d 1381, 1384 (D.C. Cir. 1979), cert. denied, 446 U.S. 937, 100 S. Ct. 2156, 64 L. Ed. 2d 790 (1980). If the affidavits

 
describe the documents and justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith . . .

 then summary judgment is appropriate. Military Audit Project v. Casey, 211 U.S. App. D.C. 135, 656 F.2d 724, 738 (D.C. Cir. 1981). Although it was not obligatory, in this case to expedite resolution of these matters, the Court inspected a sample of the CIA documents as designated by counsel and all of the FBI documents to determine whether denial of access was indeed justified under the Act.

 I. Department of State

 Civil Action No. 80-1056

 On April 20, 1979 plaintiff Shaw requested access to records of any kind relating to Michael Victor Mertz, Christian David and Thomas Eli Davis, III. *fn3" By letters dated July 10, 1979, August 21, 1979 and August 28, 1979, defendant released 45 documents in full and 19 in part, pertaining to Christian David. Defendant also informed plaintiff, by letter dated September 5, 1979, that with reference to Thomas Eli Davis, III, partial release would be made from documents referred to the State Department by the F.B.I. *fn4" Approximately 8 months later, on March 19, 1980, plaintiff's counsel wrote to State's FOIA Appeal Board formally appealing State's ostensible denial of access to records pertaining to Davis since plaintiff had received none to date. *fn5"

 Defendant's motion for summary judgment is supported by the affidavits of Thomas W. Ainsworth, Acting Deputy Assistant Secretary for the Classification/Declassification Center of the Department of State and Frank M. Machak, Chief of the Information Access and Services Division of the Department of State's Foreign Affairs Information Management Center. The Ainsworth affidavit includes a Vaughn index *fn6" justifying the withholding of all or part of 34 documents pertinent to plaintiff's requests.

 But the legal sufficiency of that index is not in issue: "In opposing the motion of the State Department for summary judgment, plaintiff limits himself to contesting the adequacy of the search." *fn7" Plaintiff contends that State should have more than one document on Jean Rene Souetre. Yet, as the Machak affidavit points out, plaintiff never requested information regarding this individual from this defendant. *fn8" The one document which was released to plaintiff about Souetre had been referred to the Department of State by the CIA.

 Plaintiff also questions State's response that it located no documents relating to Michael Victor Mertz. Machak's affidavit explains the coordinated search process undertaken for any material on Mertz. Seven record systems were thoroughly reviewed but nothing pertaining to Mertz was discovered. In addition, each of the 34 documents listed in the Ainsworth affidavit as having been released to plaintiff with portions deleted or as having been withheld in their entirety, was reviewed for references to Mertz. Mertz was not mentioned in the deleted portions of the 19 documents released in part, nor in any of the 15 documents withheld altogether. Particularly, since plaintiff's letter of appeal concerned Davis only, it is determined that State's search with reference to Mertz was more than sufficient. See, e.g., Goland v. Central Intelligence Agency, 197 U.S. App. D.C. 25, 607 F.2d 339, 352-53, 369-70 (D.C. Cir. 1978), cert. denied, 445 U.S. 927, 63 L. Ed. 2d 759, 100 S. Ct. 1312 (1980).

 Finally, plaintiff challenges the adequacy of defendant's search for information pertaining to Thomas Eli Davis, III. According to the Machak affidavit the four record systems searched did not turn up any additional documents pertaining to Davis. However, duplicates of six documents which had been referred to State by the FBI were located in the Security Records. Plaintiff was notified of these items and the applicable exemptions supporting non-disclosure of some parts of them on September 5, 1979. But plaintiff objects specifically to defendant's failure to locate Davis' passport file. Defendant has submitted ample documentation of the unsuccessful search efforts of the Passport Office. *fn9" An agency's search for FOIA documents need only be reasonable. McGehee v. CIA, slip op. at 10; Founding Church of Scientology v. NSA, 610 F.2d at 837; Goland v. CIA, 607 F.2d at 353. Based on the thoroughness of the searches conducted as evidenced by the detailed affidavits discussed herein, it is determined that the Department of State's search was indeed adequate and it therefore appears that summary judgment should be granted in its favor.

 II. Immigration and Naturalization Service

 A. Civil Action No. 80-1056

 By letter dated March 9, 1978 plaintiff requested access to all records, including photographs, pertaining to Jean Souetre, a/k/a Michael Roux, a/k/a Michael Hertz. *fn10" Attached to his request was a copy of a CIA document previously released to plaintiff providing background information on Souetre. *fn11" Defendant responded that no records could be located and more identifying data would be required. *fn12" Plaintiff learned that Souetre was born October 15, 1930 in the Gironde area of France and forwarded that information to defendant on December 4, 1978. *fn13" On April 11, 1979 defendant informed plaintiff that it had been unable to locate any records responsive to his requests. One record was found for one of the aliases but did not match the date and place of birth provided by plaintiff. INS invoked Exemption (b)(7)(C) of the FOIA to deny access to that record, as the disclosure would constitute a "clear and unwarranted invasion of privacy." *fn14" The Court has inspected this document in camera and has verified that defendant's assessment is correct. Another document pertaining to that individual was subsequently located and produced for in camera inspection but it, too, upon review fails to coincide with the information provided by plaintiff.

 Accompanying defendant's motion and in support thereof is the affidavit of William J. Chambers, District Director of the Dallas, Texas District Office of the United States Immigration and Naturalization Service, which recounts the history and contents of communications between the plaintiff and defendant as described above, and the affidavit of Cecil G. Christian, Chief, Records Administration and Information Branch of the United States Immigration and Naturalization Service, *fn15" which describes the process of retrieving and locating files in the automated index and manually.

 Defendant has moved for summary judgment on the basis that a thorough search produced no records responsive to plaintiff's request. Plaintiff opposes this motion, alleging the inadequacy of defendant's search in view of Mertz's trips to the United States, Roux's naturalization in 1970 and a possible investigation of Davis for loss of citizenship. However, plaintiff's request to INS was for records pertaining to Souetre, a/k/a Hertz, a/k/a Roux. Davis was not a subject of any request to INS in this action, and although INS apparently conducted a search for records pertaining to Mertz, *fn16" plaintiff never initiated that search, according to the documentation before the Court. The Christian affidavit explains that an additional microfilm search for the period 1940-60 could be performed but that would take one person approximately three days. Considering that the automated records have been searched and that the microfilm records have been searched from 1960 forward, it is determined that defendant's search meets the test of reasonableness and that therefore summary judgment is likewise appropriate as to it. The sufficiency of the agency's identification or retrieval process is not genuinely in issue here. See cases cited at slip op. at 6, supra.

 B. Civil Action No. 81-0942

 By letters of various dates in 1980 addressed to the INS Regional and District Offices plaintiff Fensterwald requested records relating to Michael Victor Mertz, born in the Moselle area of France, circa 1921; Jean Rene Souetre, born in the Gironde area of France, circa 1930; and Michael Roux, date of place of birth unknown. *fn17" Twenty-six of the 29 offices responded that they conducted as thorough a search as was possible given the limited information provided by plaintiff but were unable to locate any records relating to the subjects of his request. The remaining offices requested additional information. *fn18" Although the INS Central Office in Washington, D.C. had not received a similar request it nevertheless conducted a search of its Master Index, its Intelligence Index and its Top Priority Program Index for records pertaining to Mertz, Souetre and Roux but none were discovered. The Central Office then wired all INS Districts and Field Offices to conduct a similar search and again no responsive records were located. *fn19" INS has moved for summary judgment in Fensterwald based upon its failure to locate any responsive records. Plaintiff's concern *fn20" is whether the few records INS has produced in camera pertain to his request. Since the Court has determined that they do not, summary judgment shall be granted in favor of INS in Fensterwald.

 III. Drug Enforcement Administration

 Civil Action No. 81-0942 *fn21"

 By letter dated March 14, 1980 explaining his interest in pursuing the investigation of the assassination of President Kennedy, and his belief that Mertz was involved in the drug trade, plaintiff Fensterwald requested records maintained by DEA Headquarters, Washington, D.C., regarding Michael Victor Mertz and Rene Souetre during the year 1963. *fn22" By letter dated April 28, 1980 plaintiff requested records maintained by DEA District or Field Offices regarding Jean Rene Souetre, Michael Victor Mertz and Michael Roux. *fn23"

 DEA advised plaintiff by letter dated September 24, 1980, that unless the information sought on third parties is in the public domain plaintiff would need to obtain notarized releases from the subjects of his request before any records could be made available to him. *fn24" Plaintiff appealed that decision. On April 13, 1981 the Office of Privacy and Information Appeals informed plaintiff that DEA maintained no records indexed to any of the three names that pertain to the Kennedy assassination, nor had DEA identified any records on these individuals for the period 1962-64. *fn25" In accordance with established DEA policy (which plaintiff questions) the requests directed to the Field Offices were handled as part of the request directed to DEA Headquarters, since duplicates of documents which exist at the Field Offices are maintained there in a centralized record keeping system. *fn26" DEA final determinations with respect to FOIA requests are based on the composite of all material responsive to a request, possessed by DEA and verified through inquiries to the Field Offices. *fn27"

 DEA conducted additional searches but each failed to produce documents which originated during the period established in plaintiff's request. *fn28" Also, three FOIA specialists manually reviewed all identifiable file references to the subject of plaintiff's request but discovered no references to the Kennedy assassination. *fn29"

 Plaintiff's principal objection to the DEA search is that he never intended his request to be limited to records which originated during the years 1962-64. *fn30" In response to that objection, as a matter of discretion, DEA undertook an additional search. *fn31" DEA requested 15 domestic and foreign offices to conduct a complete file search for records pertaining to each of the subjects for the time period 1962-1978. The offices were instructed to search the Narcotics and Dangerous Drug Information System and any existing manual file card indices. *fn32" DEA does have file references to one or more of the subjects of plaintiff's request but they relate only to the investigation of illicit narcotic traffic and not at all to the Kennedy assassination. *fn33" Although plaintiff claims his request is not limited to information relating to the Kennedy assassination, as originally worded and as characterized in his administrative appeal, it conveys no other meaning. *fn34" The three Collier affidavits describe DEA's search in detail and convince the Court of its adequacy.

 IV. Federal Bureau of ...


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