merits of this FBI investigation of many years ago and declines to pass opinion on the "McCarthy era" climate during which part of the FBI investigation occurred. Notwithstanding whatever conclusions may be rendered in hindsight, the tenor of the times in which this investigation was conducted conduced to a "colorable claim" of federal law violation. As the Court in Pratt admonished, "a court, therefore, should be hesitant to second-guess a law enforcement agency's decision to investigate if there is a plausible basis for its decision." Pratt v. Webster, 673 F.2d at 421.
Title 5 of the United States Code, § 552(b)(7)(C), exempts from mandatory disclosure "investigatory records compiled for law enforcement purposes, but only to the extent that the release of such records would . . . constitute an unwarranted invasion of personal privacy." The Court, already having determined that the materials constitute investigatory records compiled for law enforcement purposes, must determine next whether the release of such records would constitute an unwarranted invasion of privacy.
In this case, Defendant has invoked exemption 7(C) to withhold the following: identities of FBI personnel; identities of state or local law enforcement officials who provided investigatory information to the FBI; the identity of a single non-FBI federal employee, identities of third parties who provided information as a result of their employment position with institutional sources; identities of persons who are mentioned in FBI investigatory files, primarily wiretap transcripts or correspondence; and identities of third parties mentioned in FBI investigatory files who may or may not have been the subject of direct investigatory interest, including individuals alleged to have been involved in subversive or other illegal activities. Plaintiff opposes Defendant's invocation of exemption 7(C) with respect to the following categories of individuals on the ground that no privacy interests would be threatened by release of information pertaining to them: third parties who are mentioned in the files, third parties who are subjects or suspects in an FBI investigative file, and third parties who provided information to law enforcement officials.
Exemption 7(C) was designed to protect the "privacy of any person mentioned in . . . requested files and not only the person who was the object of the investigation." 120 Cong.Rec.S. 17033 (May 30, 1974). Where a privacy concern exists, disclosure is made only if the public's right to be informed is deemed to be of greater social importance. Department of Air Force v. Rose, 425 U.S. 352, 372-73, 96 S. Ct. 1592, 1604-05, 48 L. Ed. 2d 11 (1976). The private, personal, or pecuniary interest of a requester is not enough. Where the requester fails to assert a public interest purpose for disclosure, even a less then substantial invasion of another's privacy is unwarranted. Ditlow v. Shultz, 170 U.S. App. D.C. 352, 517 F.2d 166, 170-71 (D.C.Cir.1975).
It is well settled in this Circuit that those who are mentioned in investigatory files are entitled to exemption 7(C) protection. See, e.g., Iglesias v. Central Intelligence Agency, 525 F. Supp. 547 (D.D.C.1981). The same is true for those who were the subjects or suspects in an FBI investigative file. See, e.g., Baez v. Department of Justice, 208 U.S. App. D.C. 199, 647 F.2d 1328, 1338 (D.C.Cir.1980). Even more patent is the case for withholding the identities of third parties who provided information to law enforcement investigations. Lesar v. United States Department of Justice, 204 U.S. App. D.C. 200, 636 F.2d 472, 488 (D.C.Cir.1980). Given that these categories of persons are entitled to protection under 7(C), the Court must determine whether based on the facts of this case, the public's right to be informed outweighs the privacy of the individuals involved.
In this case, the individual making the request for this information is not connected in any way with the materials in question. Plaintiff seeks the information to aid her in writing a book about Carol King, who is the subject of the request. The Court is mindful, however, that the individual making the request is not only interested in these documents to satisfy her own curiosity, but is likely to use some or all of the information contained in these documents in the book which is likely to be circulated to the public. The Court acknowledges, therefore, that there is some public interest, although very minimal. Given that it "is difficult, if not impossible, to anticipate all respects in which disclosure might damage reputations or lead to personal embarrassment and discomfort," Lesar v. United States Department of Justice, 636 F.2d at 488, however, the Court declines to find that the public interest in this case outweighs the privacy interests of those third parties identified in the FBI investigative files.
It is significant to note that the very abuses by the government and the "McCarthy era" character of this investigation, as alleged by Plaintiff, far from justifying release of this information, have been held the precise reasons for withholding information pertaining to third parties. In Dunaway v. Webster, 519 F. Supp. 1059 (N.D.Cal.1981), as in the instant case, "virtually all of the material either identified individuals who were of investigative interest to the FBI, or contains information linking those individuals to activities or organizations which at that time were considered subversive." Id. at 1077. The requester there, like Plaintiff in this action, was an author who intended to write a book, utilizing the requested documents, "which likely would be widely circulated." Id. at 1077-78. After noting the "embarrassment and damage to reputation" which would result from release of information pertaining to individuals in connection with individuals or organizations "which have been considered subversive," Id. at 1078-79, the Court quoted with approval from Cerveny v. Central Intelligence Agency, 445 F. Supp. 772, 776 (D.Colo.1978):
"A moment's reflection upon recent political history and the excesses of the internal security investigations of the 1950's should be sufficient to signal caution in dealing with unverified derogatory material within the files of an intelligence gathering agency of government. Indiscriminate public disclosure of such material in response to a citizen's request would be as much an abuse of agency authority as an intentional release designed to damage persons. The impact on the individual is the same."
Id. at 1079. Plaintiff's claim of public interest sufficient to overcome the substantial privacy interest of the third parties contained in the FBI investigative files in this case is of no greater avail than that in Dunaway and the Court finds that the balance tips in favor of non-disclosure of the identities of third parties contained in the FBI investigative files.
Finally, the Court rejects Plaintiff's argument that the passage of time favors release of the identities of the third parties contained in the FBI files in this action. Such an argument was squarely rejected in Dunaway. There the Court found that the changing "mood of the country" and the fact that the public perception of the investigations of persons, as in the instant case, once thought to have engaged in subversive activities is subject to "great swing which occur with little warning . . ." supported the continued withholding of such third party information. Dunaway v. Webster, 519 F. Supp. at 1079.
Section 552(b)(7)(D) exempts from disclosure investigatory records compiled for law enforcement purposes, the production of which would disclose the identity of a confidential source and confidential information furnished by that source. In this case, the FBI has invoked exemption 7(D) to withhold source symbol numbers and letters; information provided to the FBI under express or implied assurances of confidentiality and the identities of the persons who provided the information; the identities of, and information provided to the FBI by financial or commercial institutions; and the identities of, and information provided to the FBI by local law enforcement agencies. Additionally, the FBI referred two one-page documents to the INS for review and response to the requestor. Such documents are contained in the investigatory file pertaining to Carol King and pertain to the identification of Communist Party members by a single source. These documents were reviewed by INS and released to Plaintiff, except for the name of the single informant which was withheld pursuant to exemption 7(D) because of an alleged implied assurance of confidentiality made to the informant at the time the information was supplied to INS. Plaintiff objects to the invocation of exemption 7(D) by the FBI and the INS only with respect to information provided under express or implied assurances of confidentiality and the identities of persons who provided such information.
Exemption 7(D) is properly invoked whether the confidential source provided information under an express assurance of confidentiality or under circumstances from which such an assurance could be reasonably inferred. Strauss v. Internal Revenue Service, 516 F. Supp. 1218, 1222 (D.D.C.1981). The Court has reviewed painstakingly each of the documents submitted with this motion. Defendant has excised from many documents the names of individuals who were interviewed during the internal security investigation at issue. In addition, information given by the source was also excised in some instances if the information given could have identified the source. Many documents were noted with the words "confidential informant" at the time that the document was originally composed. This is a clear indication that such informants were given express assurances of confidentiality and therefore, exemption 7(D) is properly invoked with respect to such documents.
Defendant also contend that other interviewees, although they were not given express assurances of confidentiality, were given implied assurances of confidentiality. Defendant alleges this with respect to the INS document. Given the tenor of the times when this investigation was conducted, and especially since many of the informants were in close association with Ms. King and organizations which were of interest to the FBI, it is more likely than not that such interviewees provided such information with the expectation that their identity and the information provided would remain confidential. This would seem to be a circumstance from which the implied assurance of confidentiality could reasonably be inferred. Strauss v. Internal Revenue Service, 516 F. Supp. at 1222. The content of the information, as well as the circumstances under which an investigation was conducted suggest that the sources of information "would hardly have made the charges unless they were confident that their identities would remain concealed." Nix v. United States, 572 F.2d 998, 1003 (4th Cir.1978).
© 1992-2004 VersusLaw Inc.