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STONE v. FBI

January 3, 1990

GREGORY STONE, et al, Plaintiffs,
v.
FEDERAL BUREAU OF INVESTIGATION, et al, Defendants



The opinion of the court was delivered by: RICHEY

 I. Factual Background

 The plaintiffs are scholars who have spent a considerable amount of time studying the 1968 assassination of Senator Kennedy and the ensuing investigation ("RFK investigation") by the FBI and the Los Angeles Police Department ("LAPD"). In pursuit of their research into the RFK investigation, the plaintiffs filed FOIA requests with FBI headquarters and with the FBI's Los Angeles Field Office. In response, the defendants released over 10,000 pages of FBI documents from their RFK investigation file. In many instances the defendants deleted the names of FBI agents or LAPD officers mentioned in the released documents, relying on Exemption 7(C) of the FOIA. *fn1" The defendants seemed to release a name only on those rare occasions when: (1) that agent or officer had been in a "supervisory," as opposed to a "street," position in the RFK investigation because supervisory agents had already received a certain amount of publicity or (2) that agent or officer's involvement in the RFK investigation was already a matter of public record and the document named him or her in precisely the same context as had previously been made public.

 Dissatisfied with the defendants' deletion of the names, the plaintiffs pursued their administrative remedies. The defendants responded by disclosing the names of LAPD officers that had been previously released by the LAPD. The plaintiffs then filed this lawsuit.

 II. Analysis

 It is well-established that the FOIA places the burden upon the agency to prove that requested information should not be released and that the Court must review de novo the agency's decision not to disclose. 5 U.S.C. § 552(a)(4)(B). Moreover, courts must construe FOIA exemptions narrowly because "disclosure, not secrecy, is the dominant objective of the [FOIA]." Department of the Air Force v. Rose, 425 U.S. 352, 361, 48 L. Ed. 2d 11, 96 S. Ct. 1592 (1976). Exemption 7(C), as amended in 1986, requires that information be disclosed except for "records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information . . . could reasonably be expected to constitute an unwarranted invasion of personal privacy." § 552(b)(7)(C). There is no dispute that the information requested in this case satisfies the threshold requirement of having been compiled for law enforcement purposes.

 Thus, in deciding whether Exemption 7(C) authorizes the defendants' refusal to release the names requested by the plaintiffs, this Court must balance the privacy interests of the "non-supervisory" FBI agents and LAPD law enforcement officers *fn2" named in the FBI's RFK investigation file against the public's interest in learning the identities of the individuals who were directly involved in the minute details of this investigation. See United States Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 109 S. Ct. 1468, 1476, 103 L. Ed. 2d 774 (1989); Lesar v. United States Dep't of Justice, 204 U.S. App. D.C. 200, 636 F.2d 472, 486 (D.C.Cir. 1980).

 A. The Agents' Privacy Interests

 In the plaintiffs' view, the most significant aspect of the privacy analysis in this case seems to be that the FBI agents are not private citizens and that therefore the agents' privacy interests are de minimis. However, as the United States Court of Appeals for this Circuit has stated:

 
The [FBI] agent by virtue of his official status does not forego altogether any privacy claim in matters related to official business. As several courts have recognized, these agents have a legitimate interest in preserving the secrecy of matters that conceivably could subject them to annoyance or harassment in either their official or private lives.

 Lesar, 636 F.2d at 487; see also Bast v. United States Dep't of Justice, 214 U.S. App. D.C. 433, 665 F.2d 1251, 1255 (D.C.Cir. 1981) ("Government officials do not surrender all rights to personal privacy when they accept a public appointment. While an individual's official position may enter the 7(C) balance, it does not determine, of its own accord, that the privacy interest is outweighed." (citations omitted)); Nix v. United States, 572 F.2d 998, 1006 (4th Cir. 1978) ("One who serves his state or nation as a career public servant is not thereby stripped of every vestige of personal privacy, even with respect to the discharge of his official duties.").

 Thus, the agents' status as public officials does not rob them of their privacy rights, especially in light of the lengthy period of time that has elapsed. Senator Kennedy was assassinated over twenty years ago, and the parties agree that many of the FBI agents who participated in the RFK investigation have long since retired. Whether they have retired, moved on to another profession, or continue to serve their state or Nation as law enforcement officials, these agents have earned the right to be "left alone" unless an important public interest outweighs that right. The privacy concerns of these FBI agents may not be quite as important as those of private citizens, which are at the "apex" of the privacy rights protected by Exemption 7(C). See Reporters Comm., 109 S. Ct. at 1485. But that alone should not lead this Court, in effect, to write a "public official" exception into the very FOIA exemption that Congress has carefully drafted and amended to strike a proper balance between disclosing information and protecting individual privacy interests.

 The defendants' arguments on the privacy side of the scale fit into one of three categories. First, the defendants contend that any publicity, whether positive or negative, about the identity of an agent involved in the RFK investigation "can seriously hinder his/her future effectiveness and ability to conduct other investigations." Defendants' Statement of Material Facts Not In Issue para. 12. The defendants also state that lower-level agents who were merely carrying out their assigned duties during the RFK investigation should not be subjected to "unnecessary, unofficial questioning as to the conduct of an investigation." Id. The defendants' third argument is that, because individuals who have been investigated by FBI agents carry grudges for years and "will sometimes seek any excuse to harass" them, the release of an FBI agent's identity with respect to a particular ...


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