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SAVADA v. UNITED STATES DOD

January 22, 1991

ALAN JAY SAVADA, Plaintiff,
v.
UNITED STATES DEPARTMENT OF DEFENSE, et al., Defendants



The opinion of the court was delivered by: PRATT

 JOHN H. PRATT, UNITED STATES DISTRICT JUDGE

 This is the second opinion regarding the cross-motions for summary judgment filed in this Privacy Act and Freedom of Information Act ("FOIA") matter. The facts underlying this dispute are set forth in the Memorandum Opinion issued by this court on November 14, 1990, 751 F. Supp. 240; there is no need to reiterate them in detail. It is enough to say that plaintiff, while employed at the Defense Mapping Agency, was denied a high level of security clearance, known as "SCI" clearance, in March of 1987. He subsequently sought to determine the basis for this denial by making a Privacy Act and FOIA request to the two agencies which were responsible for the investigation and assessment of his suitability for SCI clearance: the Defense Intelligence Agency ("DIA") and the Defense Investigative Service ("DIS").

 The majority of documents identified as responsive to plaintiff's request were released by the agencies. The agencies identified 220 documents as responsive to plaintiff's request, and as of November 14, 1990, only twenty-eight documents were being withheld in their entirety. In the November 14, 1990 Order (the "November Order") pertaining to these cross-motions for summary judgment, we required defendants to submit additional information to justify the withholding of these documents, finding the materials supplied as Vaughn indices in defendants' first round of filings lacked sufficient supporting details to justify the claimed exemptions from release under FOIA and the Privacy Act.

 On December 14, 1990, defendants filed a Supplemental Memorandum in Support of Their Motion for Summary Judgment. Supplied with this information, we are now able to make a final decision in this matter. Most of the documents had been withheld under a claim of work-product privilege, and the additional information lends credence to defendants' belief that litigation may arise from their actions regarding plaintiff's SCI clearance. Specifically, defendants' supplemental information provides evidence that plaintiff's "personal counsel" during the investigation, Dr. Frank Kameny, had repeatedly as early as 1983 threatened the agencies with both adverse publicity and litigation in retaliation for their actions, and that this individual was known by the agencies as someone who frequently litigated these matters. *fn1" Admittedly Kameny's rhetoric is vituperative and overblown. Despite this fact, we are satisfied that the agencies were faced with "a specific claim supported by concrete facts which would likely lead to litigation," Coastal States Gas Corp. v. Dept. of Energy, 199 U.S. App. D.C. 272, 617 F.2d 854, 865 (D.C. Cir. 1980), and therefore hold the agencies were warranted in withholding documents under the work-product exemptions. See 5 U.S.C. § 552(b)(5); 5 U.S.C. § 552a(d)(5). We will now address the specific documents withheld by each agency.

 DIS Documents

 Our November Order applied to eleven documents withheld by DIS. It now appears four of these documents had already been released, and that two additional documents are excused from release. Although plaintiff claimed that Documents 89, 95-97, 99-100 *fn2" were withheld by DIS, DIS now states these documents were referred to DIA for determination of suitability for release, and that Documents 89 and 95-97 (four documents) were released to the plaintiff with the service copy of Defendants' Motion for Summary Judgment, filed on January 3, 1990. Documents 99 and 100 are memorandum created while processing plaintiff's FOIA request, and therefore need not be disclosed. *fn3" This accounts for six of the eleven documents.

 Four of the five remaining documents have now been released in their entirety. DIS has submitted a Supplemental Declaration of Dale L. Hartig, Chief of the Office of Information and Public Affairs at DIS, which states that Documents 77, 78, 80, and 81 have been completely released, and that Document 79 has been released in part. Document 79, described as a memorandum prepared by the DIS general counsel discussing "litigation risks and strategies", was properly withheld under the work product exemption to both the Privacy Act and FOIA. See 5 U.S.C. § 552(b)(5); 5 U.S.C. § 552a(d)(5).

 The only remaining information being withheld by DIS are portions of three other documents: Documents 42, 49, and 76. Portions of Documents 42 and 49 are being withheld to protect the identities of individuals who gave information with a desire to remain anonymous. Such information is properly exempt from release under FOIA, 5 U.S.C. § 552(b)(7)(D), and the Privacy Act, 5 U.S.C. § 552a(k)(5). Since DIS released cover sheets of these documents which demonstrate that the sources of the information desired confidentiality, there is no need for an in camera inspection of these documents. *fn4"

 The last document which is being partially withheld is Document 76. The Hartig Declaration dated December 12, 1989 *fn5" states that Document 76 came from the DoD Component Inquiry File, which is not subject to the Privacy Act. The only information withheld from this document was the name and telephone number of an individual third party. We agree with the defendants that to release this information would constitute an invasion of privacy for that individual, and that therefore portions of this document were properly withheld under FOIA Exemption 7(C). 5 U.S.C. § 552(b)(7)(C); cf. Antonelli v. Sullivan, 732 F.2d 560, 562 (7th Cir. 1983) (without a legitimate need for witnesses' names and phone numbers, releasing such information to plaintiff in a FOIA suit would constitute an invasion of privacy for those witnesses).

 DIA Documents

 Our November Order required DIA to provide additional information concerning its withholding of seventeen documents. In support of its actions, DIA has submitted a Supplemental Declaration of Terry E. Bathen, the "Bathen Declaration", *fn6" which provides additional descriptions of these seventeen documents.

 
A one-page handwritten, undated note from Major Carl F. Meyer, an Assistant General Counsel, DIA to Mr. John Brock, the General Counsel, DIA requesting guidance on the amount of assistance on the Savada case. At the bottom of the note, Mr. Brock responds to two specific questions posed by Major Meyer and provides general guidance on future support if DIA is made a ...

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