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COMMITTEE IN SOLIDARITY WITH EL SALVADOR v. SESSIO

May 9, 1990

COMMITTEE IN SOLIDARITY WITH THE PEOPLE OF EL SALVADOR (CISPES), et al., Plaintiffs,
v.
WILLIAM F. SESSIONS, et al., Defendants



The opinion of the court was delivered by: REVERCOMB

 GEORGE H. REVERCOMB, UNITED STATES DISTRICT JUDGE.

 The instant complaint was filed by individuals and organizations who were investigated by the Federal Bureau of Investigation ("FBI") for alleged terrorist activity pursuant to a tip by a paid informant who was later determined to be untrustworthy. The plaintiffs allege that the investigation was a violation of their rights under the first amendment and the Privacy Act of 1974, 5 U.S.C. ยง 552a.

 The defendants, the FBI and its current Director, have conceded that the investigation was flawed ab initio and have accordingly made arrangements to dispose of all of the records that were accumulated throughout the course of the investigation. Additionally, the defendants have disciplined the appropriate FBI personnel and amended the guidelines for the conduct of future investigations.

 This matter is before the Court pursuant to the defendants' motion to dismiss.

 I. First Amendment Claim

 This Court is without the jurisdictional authority to hear the plaintiffs' first amendment claims. Article III "case or controversy" is a jurisdictional predicate which is not satisfied in the instant action because of mootness and lack of standing.

 A. Mootness

 Article III of the Constitution limits the subject matter jurisdiction of the federal courts to the adjudication of actual ongoing controversies between litigants. Preiser v. Newkirk, 422 U.S. 395, 401, 45 L. Ed. 2d 272, 95 S. Ct. 2330 (1975). The plaintiff's personal stake in the controversy between the parties must continue to exist throughout the duration of the case or it becomes moot. Sosna v. Iowa, 419 U.S. 393, 402, 42 L. Ed. 2d 532, 95 S. Ct. 553 (1975). This limitation on the jurisdiction of federal courts requires the Court to settle only those legal questions that will "affect[] the behavior of the defendant towards the plaintiff." Hewitt v. Helms, 482 U.S. 755, 107 S. Ct. 2672, 2676, 96 L. Ed. 2d 654 (1987).

 At the time that the defendants filed their motion to dismiss, the Director had instructed that no disclosure be made without authority from senior officials at FBI Headquarters. The question of the ultimate disposition of those records, including what permanent restrictions should be placed on disclosure of information secured in the investigation, was under study. The Director testified before the House of Representatives that the charge of the working group is "to very carefully devise guidelines that will be sure, and make sure that those names [of individuals in the CISPES files] are not released unless there has been a very careful review and a very definite reason requiring [release]." More specifically, the Director testified that he had "ordered senior personnel at the Bureau to develop criteria for restricting dissemination of information in CISPES files except in response to Freedom of Information Act and Privacy Act requests."

 Those guidelines are now complete and the defendants have entered into an agreement with the National Archives and Records Service regarding the disposition of the CISPES records. The agreement is embodied in a letter of February 24, 1990 from the Director of the FBI to the Archivist of the United States and contains the approval signatures of both the Director and the Archivist. The agreement provides for the transfer of all CISPES records, including spinoff files and indices, to the Archives and the conditions under which such records can be retrieved and the purposes for which such records can be used. Accordingly, the defendants contend that the instant complaint is moot where the plaintiffs' prayer for relief seeks:

 
that a mandatory injunction issue, directing defendants to recover, collect and seal all copies of FBI files and records relating to the CISPES investigation and any of its spinoffs, including any and all indices, index cards, information in computer data bases or indices, and records or information contained in any other FBI or other federal agency files, and deposit such material in the National Archives upon terms and conditions to be determined by the Court. *fn1"

 Notwithstanding the agreement for disposal of the CISPES records, the plaintiffs contend that the instant case is not moot on the ground that the agreement does not cover copies of CISPES records that may have been provided to other entities. Plaintiffs correctly state that the agreement between the defendants and the Archivist

 
makes no reference to the CISPES information in the FBI files that was disseminated in computer data banks such as those maintained by the Terrorist Research Analytic Center (TRAC), the Terrorist Information System (TIS), and the Drug Enforcement Agency, or to CISPES information from the FBI files that was disseminated to the Department of State, ...

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