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SCHRECKER v. U.S. DOJ

August 12, 1998

ELLEN W. SCHRECKER, Plaintiff,
v.
U.S. DEPARTMENT OF JUSTICE, Defendant.



The opinion of the court was delivered by: LAMBERTH

MEMORANDUM OPINION

 This matter comes before the court on the cross-motions for summary judgment, pursuant to Fed. R. Civ. P. 56(c), of plaintiff Ellen Schrecker and defendant U.S. Department of Justice. Based upon the memoranda in support of and in opposition to the cross-motions, the entire record thereto and the relevant law, plaintiff's motions will be granted in part and denied in part; defendant's motions will be denied.

 I. Background

 A. Factual and Procedural History

 Plaintiff Ellen Schrecker first wrote to the Federal Bureau of Investigation ("FBI") on October 3, 1988 when she submitted a request for agency records maintained in FBI headquarters and field offices on Gerhart Eisler and Clinton Jencks. Both were subjects of Justice Department investigations during the McCarthy Era, in 1947 and 1953 respectively. Eisler was a German communist who lived in the United States from either the late 1930's or 1941 until 1949. The Justice Department indicted Jencks, an official of the Mine, Mill and Smelter Workers International Union in New Mexico, for filing a false affidavit under the Taft-Hartley law.

 Schrecker requested these documents as part of her research for a book on related matters. Her requests were incorporated into a new request from her counsel on November 25, 1994. In accordance with the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, Schrecker filed this lawsuit, concerning the adequacy of the FBI's releases on January 6, 1995.

 On April 24, 1989, the FBI had released 947 of 1356 pages responsive to her request on Eisler, but withheld certain documents or portions thereof, invoking 5 U.S.C. §§ 352(b)(1)(information containing classified national security information); 552(b)(3)(pursuant to Fed. R. Crim. P. 6(e))(information containing grand jury materials); 552(b)(7)(C)(information that could reasonably be expected to constitute an unwarranted invasion of personal privacy); 552(b)(7)(D)(information that could reasonably be expected to disclose the identity of a confidential source); and 552(b)(7)(E)(information that would disclose techniques and procedures for law enforcement investigations and prosecutions). On August 20, 1991, the FBI had released 594 out of 690 processed pages relating to Eisler. The FBI next released 4,121 pages out 4,245 Eisler pages on April 13, 1995. FBI headquarters released the next set of documents on July 14, 1995, providing 2,656 out of 3,461 pages on Eisler. Subsequently the FBI released 2,252 out of 3,106 pages on November 6, 1995, withholding information in concert with all the aforementioned FOIA exemptions as well as 5 U.S.C. § 552(b)(2)(information that pertains solely to the internal personnel rules and practices of an agency).

 In response to the requests for material on Jencks, FBI headquarters first released 837 out of 950 pages on March 9, 1995. On May 1, 1995, FBI headquarters provided a second set of documents, releasing 1,277 of 1,501 pages. FBI headquarters released 2,645 out of 3,136 pages on June 30, 1995. Pages or portions of pages were withheld by the FBI pursuant to FOIA Exemptions 1, 2, 3, 7(C), 7(D), and 7(E). Subsequently, on September 20, 1995, the FBI headquarters released Jencks documents from two files that were reprocessed under new classification procedures.

 FBI field offices also released documents in response to Schrecker's request. The first set came from the FBI's El Paso Field Office on October 9, 1996, when it released 50 of 54 pages on Jencks. Pages or portions were withheld pursuant to FOIA Exemptions 2, 3(pursuant to Fed. R. Crim. P. 6(e)), 7(C), and 7(D). The FBI's Albuquerque Field Office released 90 of 104 pages responsive to the request for Jencks documents on November 29, 1996. For these documents, the FBI invoked FOIA Exemptions 1, 2, 7(C) and (7)(D).

 Problems in this litigation resulted from filing delays, difficulties in the search process, and disputes between the parties over fee waivers. On August 6, 1997, this court granted plaintiff's motion for summary judgment as to a fee waiver. This court found, under the fee waiver standard, that the documents at issue were in the public interest and would not be used primarily for the commercial interest of the plaintiff. Accordingly, this court ordered the defendant to waive all copying fees and return any and all fees paid by plaintiff. Following that order, the FBI released additional documents on or about August 29, 1997.

 This case suffered further delay when the parties failed to meet deadlines established pursuant to a Stipulation and Amended Scheduling Order on September 29, 1997. Consequently, the court issued another order for timely compliance with new deadlines regarding two tracks of summary judgment motions. The parties finally submitted the appropriate filings for the first track and this court proceeded to evaluate their claims. Since the parties continued to argue points for their first summary judgment motions in their filings supporting their second motions for summary judgment, this court takes those arguments and revelations into account in this memorandum.

 Defendant Department of Justice initially argued in favor of summary judgment, contending that documents were properly withheld and redacted pursuant to FOIA. Since that time, the agency has changed that contention regarding Exemptions 1 and 7(E). Conversely, Schrecker asks the court to award summary judgment in her favor, arguing that documents were redacted and withheld improperly, especially in light of the release of previously withheld documents, recent political changes and the number of years that have passed since the investigations. She also moves that this court 1) order the defendant to conduct a further search for responsive documents; 2) order the defendant to reprocess the documents at issue; 3) order defendant to consult standard sources to determine whether the persons to whom redacted material pertains are deceased; and 4) permit the plaintiff to engage in limited discovery.

 II. FOIA Standard of Review :

 The Freedom of Information Act, 5 U.S.C. § 552, as amended by the Freedom of Information Reform Act of 1986, §§ 1801-04 of Pub.L. No. 99-570, 100 Stat. 3207, 3207-48 (1986) establishes a statutory right for citizens to gain access to government information. The Act creates a basic presumption that agency records should be accessible to the public and commands government agencies to make records available upon demand unless the request falls within one of the nine exemptions.

 Summary judgment in a FOIA action is appropriate when the pleadings together with the declarations show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Fed. R.Civ. P. 56(c); Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 91 L. Ed. 2d 202, 106 S. Ct. 2505; Alyeska Pipeline Serv. Co. v. EPA, 272 U.S. App. D.C. 355, 856 F.2d 309, 313 (D.C. Cir. 1988) (mere conflict in affidavits not sufficient to preclude an award of summary judgment); Weisberg v. Department of Justice, 200 U.S. App. D.C. 312, 627 F.2d 365, 368 (D.C. Cir. 1980). Courts review FOIA suits de novo. However, the agency carries the burden of justifying nondisclosure, See 5 U.S.C. § 552(a)(4)(B); Department of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 755, 103 L. Ed. 2d 774, 109 S. Ct. 1468 (1989).

 Agencies may rely on the declarations of its officials in order to sustain this burden of proof in a FOIA case. See Oglesby v. Department of the Army, 287 U.S. App. D.C. 126, 920 F.2d 57, 68 (D.C. Cir. 1990); Goland v. CIA, 197 U.S. App. D.C. 25, 607 F.2d 339, 352 (D.C. Cir. 1978). The agency's declarations are accorded a presumption of expertise. Pharmaceutical Manufacturers Ass'n v. Weinberger, 411 F. Supp. 576, 578 (D.D.C. 1976). However, the declarations must be clear, specific and adequately detailed; they must describe the withheld information and the reason for nondisclosure in a factual ...


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