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BRANCH v. FBI

April 13, 1987

Taylor Branch, Plaintiff,
v.
Federal Bureau Of Investigation, Defendant



The opinion of the court was delivered by: RICHEY

 I. BACKGROUND

 Plaintiff, a writer and historian, seeks FBI files generated between the years 1952 and 1963 concerning Stanley Levinson. Mr. Levinson was a friend and advisor of Dr. Martin Luther King. Plaintiff originally sought access to the Levinson files by requesting an opportunity to read them in the FBI's public reading room. Although some of the Levinson files were provided to plaintiff, most were withheld.

 Plaintiff appealed the withholding of this information by letters dated February 9, 1984 and June 29, 1984. On April 23, 1984 and August 14, 1984, the Department of Justice affirmed the FBI's withholding of this information and notified plaintiff that any information withheld because it was classified would be sent to the Departmental Review Committee to determine whether continued classification was warranted. Upon review, part of one page was declassified and released.

 By letter dated April 3, 1986, plaintiff's representative challenged the withholding of the Levinson files. On June 9, 1986, the decision to withhold the information was again affirmed and the classified material was referred to the Departmental Review Committee to determine whether it warranted continued classification.

 On June 13, 1986 the plaintiff filed this action. The information at issue is contained in 314 documents totalling 863 pages. The Court ordered the FBI to supply an index of the documents in accordance with Vaughn v. Rosen, 157 U.S. App. D.C. 340, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977, 39 L. Ed. 2d 873, 94 S. Ct. 1564 (1974). The FBI claims that the information was properly withheld pursuant to FOIA Exemptions 1, 2, 7(C) and 7(D). Pending are defendant's motion for summary judgment and plaintiff's motion for in camera inspection.

 II. DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

 A. The "Coded Format" Satisfies the Requirements of Vaughn v. Rosen.

 Preliminarily, the Court must determine whether defendant's "coded format" satisfies the requirements of Vaughn v. Rosen, 157 U.S. App. D.C. 340, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977, 39 L. Ed. 2d 873, 94 S. Ct. 1564 (1974). Because the defending agency bears the burden of proof, 5 U.S.C. § 552(a)(4)(B), it must submit a Vaughn index -- an itemized index, correlating each withheld document with a specific FOIA exemption and the agency's reason for withholding the information. See, e.g., Vaughn v. Rosen, 484 F.2d at 487. If the index is not sufficiently detailed to permit the Court to conduct a de novo review, the court may remand and order the submission of a more detailed index. See, e.g., Founding Church of Scientology v. Bell, 195 U.S. App. D.C. 363, 603 F.2d 945, 949 (D.C. Cir. 1979).

 Defendant has not submitted a traditional Vaughn index serially describing each document and why it is being withheld. Instead, defendant has provided redacted copies of the documents at issue. On each document is a code describing the FOIA exemption being asserted and the nature of the information being withheld. For example, the code (b)(7)(C)-7 indicates that the information is being withheld pursuant to FOIA Exemption 7(C) and that it contains the names of non-Federal law enforcement officers. See Llewellyn Declaration para. 26; see also Peterson Declaration paras. 7-10 (explaining how the coded format works). By cross-referencing the code with the declarations, defendant's justification for withholding the information is explained. See, e.g., Llewellyn Declaration para. 30.

 B. With the Exception of the Information Characterized by the Code "(b)(1) 4b," the Defendant Has Properly Invoked Exemption 1; the Information Denoted "(b)(1)4b," Must be Described With More Specificity.

 Information may be withheld pursuant to Exemption 1 of the FOIA if it is national security information concerning national defense or foreign relations and has been properly classified in accordance with the substantive and procedural requirements of an executive order (EO). See 5 U.S.C. § 552(b)(1). Plaintiff concedes that defendant has classified the information at issue in accordance with the applicable EO -- EO 12356. See Plaintiff's Opposition at 7. Plaintiff only contends that defendant has not carried its burden of proving with adequate specificity that the information logically falls under the substantive criteria of EO 12356. See Weissman v. CIA, 184 U.S. ...


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