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ABRAMSON v. FBI

July 1, 1983

HOWARD S. ABRAMSON, Plaintiff
v.
FEDERAL BUREAU OF INVESTIGATION, et al., Defendants



The opinion of the court was delivered by: RICHEY

 This Freedom of Information Act case is before the Court on remand from the Court of Appeals, following affirmance of this Court's decision by the United States Supreme Court in FBI v. Abramson, 456 U.S. 615, 102 S. Ct. 2054, 72 L. Ed. 2d 376 (1982). The Supreme Court, reversing the Court of Appeals, agreed with this Court that certain information contained in a group of "name check" summaries and attachments compiled for the White House by the FBI were exempt from disclosure under Exemption 7(C) to the Freedom of Information Act, 5 U.S.C. § 552(b)(7)(C). The Supreme Court held that information contained in records originally compiled for legitimate law enforcement purposes did not lose its exemption from disclosure by being reproduced in the name check summaries, which were not compiled for legitimate law enforcement purposes. After the Supreme Court remanded to the Court of Appeals, plaintiff persuaded the Court of Appeals that he had never conceded that the information underlying the name check summaries and the attachments thereto was in fact compiled for legitimate law enforcement purposes. The Court of Appeals therefore remanded the case to this Court to determine whether Abramson had ever made such a concession. The Court of Appeals stated that, if there was no such concession,

 
"it is the agency's burden to establish that the requested information originated in a record protected by Exemption 7," FBI v. Abramson, 456 U.S. 615, 102 S. Ct. 2054, 2064, 72 L. Ed. 2d 376 (1982), and the District Court should determine whether this burden has been satisfied by applying the standards set forth . . . in Pratt v. Webster, 218 U.S. App. D.C. 17, 673 F.2d 408 (D.C. Cir. 1982).

 Abramson v. FBI, No. 79-2500 (D.C. Cir. Nov. 28, 1982). In this Court, the parties filed motions for summary judgment directed to these inquiries, which the Court shall now decide.

 In accordance with the Court of Appeals' direction, this Court first set out to determine whether plaintiff had conceded that the information underlying the name check summaries and attachments had been compiled for legitimate law enforcement purposes. Although defendants pointed to an unrebutted affidavit on this question that they had submitted in the original proceeding in this Court, plaintiff argued strenuously that he had never conceded the question in either that proceeding or any of the subsequent appellate proceedings. After the Court suggested to the parties that they confer amongst themselves in an effort to resolve the matter, the parties returned to Court and stated that they definitely did disagree whether the information underlying the name check summaries was originally compiled for legitimate law enforcement purposes, and that this should be the sole question for the Court to decide. Thus, the Court has proceeded to address this question using the formulation articulated by the Court of Appeals: whether defendants have met their burden of establishing that this information was in fact originally compiled for legitimate law enforcement purposes.

 II. DEFENDANTS HAVE MET THEIR BURDEN OF ESTABLISHING THAT THE UNDERLYING INFORMATION WAS ORIGINALLY COMPILED FOR LEGITIMATE LAW ENFORCEMENT PURPOSES.

 In making the determination whether defendants have satisfied their burden of establishing that the information underlying the name check summaries was originally compiled for legitimate law enforcement purposes, the Court of Appeals directed this Court to apply the standards set forth in Pratt v. Webster, 218 U.S. App. D.C. 17, 673 F.2d 408 (D.C. Cir. 1982). As defendants have hastened to point out, Pratt dictated the application of a "deferential attitude toward the claims of 'law enforcement purpose' made by a criminal law enforcement agency," such as the FBI. Id. at 418. The decision stated that "a court can accept less exacting proof from such an agency that the purpose underlying disputed documents is law enforcement." Id.

 Pratt also set forth a two-part test against which an agency's assertion of law enforcement purpose should be gauged:

 
(1) "the agency's investigatory activities that give rise to the documents sought must be related to the enforcement of federal laws or to the maintenance of national security."
 
(2) "the nexus between the investigation and one of the agency's law enforcement duties must be based on information sufficient to support at least 'a colorable claim' of its rationality."

 Id. at 420-21. Defendants argued that they have satisfied the first prong of this test by tracing each and every individual segment of information withheld from the summaries pursuant to Exemption 7, identifying the type of investigation and the dates upon which the withheld portions of information were obtained, and attesting to this information by affidavit. Defendants contend that they have satisfied the second prong of the test by attesting to the fact that the deleted information was originally compiled for law enforcement purposes, and by identifying the type of law enforcement investigation involved as either a background investigation for appointment to office, an investigation to determine if a person had violated federal criminal law, or an investigation to obtain information leading to the arrest of a person violating federal criminal law. Defendants also maintain that the affidavit they have submitted in support of their withholding is far more specific than that sanctioned by the Court of Appeals in Pratt.

 In resolving these conflicting claims, it is important to note precisely what information is in issue here. As defendants point out, the only information in dispute here is that withheld pursuant to Exemption 7(C), *fn2" which exempts information contained in law enforcement records the disclosure of which would cause an unwarranted invasion of personal privacy. 5 U.S.C. § 552(b)(7)(C). In this case, the information deleted pursuant to Exemption 7(C) appears in the name check summaries on Adam Walinsky, John Kenneth Galbraith, Cesar Chavez, and Paul ...


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