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SIMON v. UNITED STATES DOJ

November 27, 1990

BERNARD E. SIMON, M.D., Plaintiff,
v.
UNITED STATES DEPARTMENT OF JUSTICE, Defendant



The opinion of the court was delivered by: RICHEY

 Proceeding under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, and the Privacy Act, 5 U.S.C. § 552a, the plaintiff seeks the release of a "record" about him. This record consists of a one-page inter-office memorandum created by the Federal Bureau of Investigation ("FBI") in 1951 and a two-page indices search record apparently generated by the defendant's search of its files as the plaintiff requested. The defendant has refused to release any part of this three-page document and has filed a summary judgment motion which relies on a Privacy Act exemption and on the FOIA exemptions for records compiled for law enforcement purposes whose release either would constitute an unwarranted invasion of privacy or would disclose the identity of a confidential source or information furnished by that source. See § 552(b)(7)(C) & (D); see also § 552a(j)(2). Having conducted a close in camera inspection of the document at issue, see September 14, 1990 Order (directing defendant to submit document to Court for in camera inspection), and having carefully considered the parties' many filings, the applicable law, and the entire record herein, the Court will grant the defendant's summary judgment motion in large part and will order the defendant to release only small portions of the document.

 I. Background

 The plaintiff is a medical doctor who served with distinction in the Army during World War II and has had a long and impressive career in his field of plastic surgery. In 1935, while attending medical school at Columbia University, the plaintiff and various other students--members of an anti-war society--voluntarily injected themselves into a controversy involving their society's activities, which resulted in the university's widely publicized decision to deny readmission to the plaintiff and five other students. See Exhibits to Defendant's Summary Judgment Motion (N.Y. Times articles). The plaintiff subsequently obtained his medical degree from Johns Hopkins in 1937. What followed, in addition to the plaintiff's four-year stint in the Army, can be summarized as a successful medical career -- from both a practical and an academic point of view -- chock-full of publications, honors, awards, and positions of great responsibility at various hospitals.

 In 1988, the plaintiff initiated his FOIA/Privacy Act request by letter to an FBI field office in New York. The FBI informed him that a search of its files had uncovered a three-page record responsive to his request but that the record would be withheld in its entirety under certain FOIA and Privacy Act exemptions. After unsuccessfully pursuing an administrative appeal of this refusal to disclose the record, the plaintiff instituted this de novo civil action.

 II. Analysis

 The Court recognizes that the FOIA "sets forth a policy of broad disclosure of Government documents in order 'to ensure an informed citizenry, vital to the functioning of a democratic society.'" FBI v. Abramson, 456 U.S. 615, 621, 72 L. Ed. 2d 376, 102 S. Ct. 2054 (1982) (quoting NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242, 57 L. Ed. 2d 159, 98 S. Ct. 2311 (1978)). Although it is well established that "'disclosure, not secrecy, is the dominant objective of [FOIA],'" John Doe Agency v. John Doe Corp., 493 U.S. 146, 110 S. Ct. 471, 475, 107 L. Ed. 2d 462 (1989) (quoting Department of Air Force v. Rose, 425 U.S. 352, 361, 48 L. Ed. 2d 11, 96 S. Ct. 1592 (1965)), it is equally clear "that the statutory [FOIA] exemptions are intended to have meaningful reach and application." Id. Moreover, the burden is on the agency to establish that one of FOIA's exemptions shields the requested information from disclosure. Id. (quoting § 552(a)(4)(B)).

 Therefore, in this case, the Court must determine whether the document is exempt from disclosure, as the defendant contends, because those three pages are:

 
records or information compiled for law enforcement purposes [that] . . . (C) could reasonably be expected to constitute an unwarranted invasion of personal privacy [or] (D) could reasonably be expected to disclose the identity of a confidential source . . . and, in the case of a record or information compiled by criminal law enforcement authority in the course of a criminal investigation . . ., information furnished by a confidential source.

 § 552(b)(7). In addition, the Court must then make a separate determination as to whether the document is protected from disclosure by Exemption (j)(2) of the Privacy Act. § 552a(j)(2).

 A. Exemption 7(C)

 Any application of Exemption 7 requires a two-step process with a threshold analysis of whether the document at issue was compiled for law enforcement purposes. See Abramson, 456 U.S. at 622; Birch v. United States Postal Serv., 256 U.S. App. D.C. 128, 803 F.2d 1206, 1209 (D.C. Cir. 1986); Pratt v. Webster, 218 U.S. App. D.C. 17, 673 F.2d 408, 413 (D.C. Cir. 1982). Although in some cases this question may be little more than a "speed bump" on the road to the subsections of Exemption 7, see, e.g., Stone v. FBI, 727 F. Supp. 662, 663 (D.D.C. 1990); Gula v. Meese, 699 F. Supp. 956, 957 (D.D.C. 1988), here this issue is hotly contested and requires close scrutiny. The defendant contends that the record responsive to the plaintiff's request satisfies the law enforcement purpose threshold test because the FBI was investigating the plaintiff for possible violations of the Internal Security Act of 1950, 50 U.S.C. § 781 et seq., which made it illegal for persons in certain positions to conceal their affiliations with Communist organizations. The plaintiff objects vigorously to the defendant's classification of the record in this regard, arguing that he did not have any ties with Communist organizations and that his record as a medical doctor and World War II veteran is so distinguished that he could not possibly have been the subject of a proper FBI criminal investigation.

 The Court's in camera inspection of the document and an application of this Circuit's Pratt decision leads the Court to the inexorable conclusion that the defendant has met its burden of proving that this record was compiled for law enforcement purposes. *fn1" The plaintiff is correct that a document does not automatically meet FOIA's compiled-for-law-enforcement-purposes threshold merely by being in the FBI's possession. See Pratt, 673 F.2d at 414. However, instead of relying on such a bare-bones argument, the defendant has done much more here by: (1) citing a specific criminal statute under which the plaintiff was being investigated when the record was compiled; (2) pointing out that the document bears the file designation 100-107142 and that the 100 classification covers domestic security investigations, see Keys v. United States Dep't of Justice, 265 U.S. App. D.C. 189, 830 F.2d 337, 341 (D.C. Cir. 1987); and (3) presenting for in camera inspection the document itself, which supports the defendant's claim that it was investigating the plaintiff for possible Communist affiliations.

 The foregoing is sufficient to satisfy Pratt's deferential two-pronged test for determining whether a record was compiled for law enforcement purposes:

 
First, the agency's investigatory activities that give rise to the documents sought must be related to the enforcement of federal laws. . . . To satisfy this requirement of a "nexus," the agency should be able to identify a particular individual . . . as the object of its investigation and the connection between that individual . . . and a possible . . . violation of federal law . . . .
 
Second, the nexus between the investigation and one of the agency's law enforcement duties must be based on information sufficient to support at least "a colorable claim" of its rationality. This second condition is deferential to the particular problems of a criminal law enforcement agency. Such an agency, in order to carry out its functions, often must act upon unverified tips and suspicions based upon mere tidbits of information. A court, therefore, should be ...

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