The opinion of the court was delivered by: HARRIS
Stanley S. Harris, United States District Judge.
This matter is before the Court on plaintiffs' motion to compel a Vaughn index and on defendants' motion to dismiss. For the reasons set forth below, both motions are denied.
Plaintiffs, Michael O'Rourke and his wife, Margie Lieb O'Rourke, brought this action to order production of what they contend are improperly withheld agency records under the Freedom of Information Act (FOIA), 5 U.S.C. § 552. The requested records generally pertain to Michael O'Rourke's administrative detention without bond by the Immigration and Naturalization Service (INS).
Michael O'Rourke had been held for almost four years at the time this action was filed in July 1983 in the United States District Court for the Southern District of New York. In June 1984, the Supreme Court denied certiorari in O'Rourke v. INS, 467 U.S. 1256, 104 S. Ct. 3546, 82 L. Ed. 2d 849 in which O'Rourke appealed the decision of the INS to require his deportation from the United States.
I. Defendants' Motion To Dismiss
Defendants have moved to dismiss the complaint on two principal grounds: lack of standing and the equitable doctrine of "unclean hands."
Michael O'Rourke is a citizen of the Republic of Ireland. Imprisoned in his own country, he escaped and made his way to the United States, which he entered under an assumed name. According to the findings of the Immigration Court, he admits his past membership in the Irish Republican Army (IRA). The criminal activities resulting in his convictions in the Republic of Ireland were undertaken on behalf of either the IRA or the Provisional Irish Republican Army (PIRA).
Defendants urge that Michael O'Rourke lacks standing due to his status as a nonresident alien.
Under defendants' interpretation, court remedies established by the FOIA are limited to American citizens.
Using well-established principles of statutory construction, an interpreting court looks first to the ordinary language of a statute to determine its meaning. See, e.g., Consumer Prod. Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 64 L. Ed. 2d 766, 100 S. Ct. 2051 (1980). Section 552(a)(3) of the FOIA requires "each agency, upon any request for records which (A) reasonably describes such records and (B) is made in accordance with published rules . . . and procedures to be followed, shall make the records promptly available to any person." "Person" is defined in § 551 to "include an individual, partnership, corporation, association, or public or private organization other than an agency." Section 4(B), which provides for judicial review, speaks only in terms of "the complainant." On its face, then, the statute's provisions are not restricted to citizens. It is worth noting that the Privacy Act, 5 U.S.C. § 552a(a)(2), does specify that its provisions apply only to "a citizen of the United States or an alien lawfully admitted." Congress thus distinguishes between a "citizen" and "any person" when it wishes to do so.
The Government urges, however, that the legislative history of the FOIA demonstrates clear congressional intent contrary to the plain language of the statute. While it is true that the legislative history evinces a desire to provide remedies to aggrieved citizens and to create an informed, intelligent electorate, there is insufficient ...