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Alexander v. Federal Bureau of Investigation

May 17, 2000

CARA LESLIE ALEXANDER, ET AL., PLAINTIFFS,
V.
FEDERAL BUREAU OF INVESTIGATION, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Royce C. Lamberth United States District Court

MEMORANDUM AND ORDER

This matter comes before the court on Plaintiffs' Motion [944] to Compel Production of Documents Regarding Second Request to the Executive Office of the President and for Further Relief the Court Deems Just and Proper. Upon consideration of this motion, and the opposition and reply thereto, the court will GRANT IN PART, DENY IN PART, AND DEFER IN PART plaintiffs' motion, as discussed and ordered below.

I. Background

The underlying allegations in this case arise from what has become popularly known as "Filegate." Plaintiffs allege that their privacy interests were violated when the FBI improperly handed over to the White House hundreds of FBI files of former

political appointees and government employees from the Reagan and Bush Administrations.

This particular dispute revolves around requests for the production of documents served on the Executive Office of the President ("EOP") on October 27, 1998. The EOP served its responses and produced documents on January 14, 1999. These responses, however, included several objections to the requests as irrelevant, unduly burdensome, or beyond the scope of this court's orders. Plaintiffs initially filed their motion to compel documents regarding their second request for documents on March 26, 1999. Plaintiffs then withdrew that motion, and the parties engaged in negotiations regarding the plaintiffs' motion. The EOP provided plaintiffs with supplemental information and documentation on April 22, and April 29, 1999.

On June 14, 1999, plaintiffs filed a revised motion to compel documents. After this motion was filed, the parties engaged in further discussions and several more of the plaintiffs' arguments were rendered moot. Plaintiffs, however, still seek to compel documents relating to several of their requests. These remaining requests include requests for documents relating to Linda Tripp and Kathleen Willey, a list of those individuals whose FBI files were requested by the White House during Craig Livingstone's tenure there, certain e-mails and hard drives of relevant individuals, documents relating to Mrs. Clinton's and EOP computers and the information contained therein, certain documents regarding "Travelgate" and "Filegate", documents relating to a 1975 Memorandum to Counsel for the President on FOIA, and telephone logs and related billing records for nine individuals. In light of recent developments regarding the records management of White House e- mails, the plaintiffs' requests for e-mails and hard drives will be addressed later in a separate opinion. The remaining requests, however, are addressed below.

II Analysis

1. Documents regarding Kathleen Willey and Linda Tripp (Request Nos. 1-3, 79)

A. Documents related to requests for and uses of

Willey's and Tripp's FBI information, including such information received or given to James Carville or the EIP (Request Nos. 1-2, 79).

In their first and second requests, plaintiffs seek all documents related to any requests for or use of information in FBI files or government records pertaining to Kathleen Willey and Linda Tripp. Plaintiffs further seek all documents referring or related to Willey and Tripp obtained from or provided to James Carville or the Education and Information Project, Inc. ("EIP"). "Parties may obtain discovery regarding any matter not privileged, which is relevant to the subject matter involved in the pending action." FED. R. CIV. P. 26 (b). As the EOP points out, this court has already ruled on the relevance of issues concerning Willey and Tripp to this case.

With regards to Kathleen Willey, the court has allowed discovery into the letters sent from her to President Clinton, which were publicly released by the White House after Willey's appearance on "60 Minutes". See Alexander v. FBI, Civ. No. 96-2123, Memorandum and Order at 3 (D.D.C. Dec. 7, 1998). This court found such discovery to be relevant to the pending case because if, as this court has since found, those letters were "maintained in a way that implicated the Privacy Act, then [their] misuse could prove to be circumstantial evidence of file misuse aimed at the plaintiffs in the case at bar." Id.; see also Alexander v. FBI, Civ. No. 96-2123, Memorandum and Order at 17 (D.D.C. March 29, 2000) (finding that the Willey letters were maintained in a way that implicated the Privacy Act). Regarding Linda Tripp, this court has held that documents relating to the Department of Defense's release of information from Ms. Tripp's security clearance form, or other alleged misuse of Ms. Tripp's government files, are relevant to the case at bar. See Alexander v. FBI, Civ. No. 96-2123, Order at 6-7 (D.D.C. April 12, 1998); Alexander v. FBI, Civ. No. 96-2123, Memorandum and Order at 3 (D.D.C. December 7, 1998).

The EOP states in its opposition that, consistent with the court's prior ruling, it searched and produced all documents relating to "the maintenance and release" and "requests from the White House Counsel's Office" of those "documents concerning Ms. Willey that have been publicly released." Opposition by Defendant EOP to Plaintiffs' Motion to Compel Documents Regarding Second Request to EOP at 5,8. The EOP further states that it has searched for and provided documents relating to the Department of Defense's release of Tripp's security clearance form, and any other alleged misuse, as set out by this court. See id. at 7. In response to Request 79, the EOP states that it searched for and produced all documents obtained from or provided to James Carville or the Education and Information Project "relating to the maintenance and release of documents concerning Ms. Willey that have been publicly released, and documents relating to [the Department of Defense's] release of information from Ms. Tripp's security clearance form." Id. at 9. Therefore, the EOP has already provided all relevant material responsive to the plaintiffs' request.

Plaintiffs are not entitled to documents concerning proper requests and uses of Willey's and Tripp's FBI information, as this information clearly has no relevance to the pending action. Plaintiffs' request is also denied to the extent that it seeks information relating to any misuse of Willey's and Tripp's FBI information other than those particular instances already addressed. As this court has previously stated, it will not "allow plaintiffs to discover information on all of the White House's alleged adversaries without any proper factual grounds to support such discovery." Alexander v FBI, Civil No. 96-2123, Memorandum and Opinion at 11 (D.D.C. December 7, 1998)(denying discovery into matters concerning Monica Lewinsky). This court has allowed discovery into matters concerning Willey and Tripp due to the fact that the plaintiffs presented the court with "discrete factual bas[es]" to support their theory of file misuse, and "the type of misuse paralleled the allegations of plaintiffs in the case at bar." Id.

The plaintiffs have presented no evidence of any misuse of Willey's and Tripp's FBI information other than the release of Willey's letters and Tripp's security clearance form. As the EOP has already produced all documents concerning these instances of misuse, the plaintiffs' requests for any other documents pertaining to Willey's and Tripp's FBI information are denied.

B. Documents showing the EOP's filing system for documents relating to Linda Tripp (Request No. 3).

In their third request, plaintiffs seek all documents sufficient to show the filing system in the EOP for documents relating to Linda Tripp. *fn1 The EOP also objected to this request, arguing that the information the plaintiffs seek is irrelevant. The party seeking to compel information bears the burden of first demonstrating its relevance. See Alexander v. FBI, Civil No. 96-2123, Memorandum and Order at 3 (D.D.C. March 6, 2000); Alexander v FBI, 186 F.R.D. 185, 187 (D.D.C. 1999); Alexander v. FBI, 186 F.R.D. 21, 45 (D.D.C. 1998). The plaintiffs correctly state that information regarding the filing system from which records that were publicly released were obtained is relevant because the Privacy Act protects records depending on how they were stored. The EOP responds, however, that with regards to publicly released Tripp records, information regarding their filing system is irrelevant because "it was the Department of Defense that released the information concerning Ms. Tripp." EOP Opposition at 9.

Plaintiffs allege that they have evidence of a "direct link" between the White House and the release of this information. This evidence, however, consists only of the fact that, shortly before Tripp's information was published in an article in The New Yorker, Jane Mayer, the author of that article called a deputy of then-current White House Press Secretary Mike McCurry, at which time the deputy referred her to the Department of Defense. The court finds that such evidence is insufficient to establish the relevance of the EOP's filing system in this case. The evidence before this court indicates only that the Department of Defense released Tripp's security form from their files. Plaintiffs' additional evidence of a brief contact between Jane Mayer and a deputy at the White House fails to establish that the EOP also participated in the release of Tripp's form, or any other FBI information, in violation of the Privacy Act. Therefore, the plaintiffs' request is denied.

2. Plaintiffs' request for a list of persons whose FBI reports were requested by the White House during Craig ...


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