Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Bey v. United States Dep't of Justice

July 7, 2008

JERRY LEWIS BEY, PLAINTIFF,
v.
UNITED STATES DEPARTMENT OF JUSTICE, DEFENDANT.



The opinion of the court was delivered by: Gladys Kessler United States District Judge

MEMORANDUM OPINION

This matter is before the Court on Defendant's Status Report Regarding Its Disclosure of Segregable Records to Plaintiff [Dkt. #24]. Insofar as Defendant requests dismissal of this action as moot, the Court construes the submission as a motion to dismiss. The motion will be denied without prejudice.

I. BACKGROUND

In 1997, Plaintiff submitted the first of many requests for information about himself and his organization, the Moorish Science Temple of America, under the Freedom of Information Act ("FOIA"), see 5 U.S.C. § 552, to the entity now known as the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF").*fn1 See Memorandum of Points and Authorities in Support of Defendant's Motion for Summary Judgment ("Def.'s Mot."), Declaration of Averill P. Graham ("Graham Decl.") ¶ 3 & Ex. A (July 4, 1997 FOIA request). Plaintiff explained that ATF Special Agents obtained information about him and his organization, the Moorish Science Temple of America, from a pen register at his wife's residence, from video surveillance, and from witness interviews taken in the course of an investigation conducted in the 1980's through the early 1990's. See id., Ex. A at 1-3. According to Plaintiff, this information led to his arrest and ultimately to his criminal conviction. See id. at 3.

Relying on FOIA Exemption 7(A), the ATF refused to disclose any of the responsive records because there were "on-going enforcement proceedings" at that time. Graham Decl. ¶ 10. Plaintiff requested reconsideration of this decision in April 2000, id. ¶ 11, and on June 2, 2000, the ATF "released 100 partially redacted pages [and] advised [P]laintiff that another 357 pages remained in the file which he could receive upon receipt of the associated [copying] fee of $52.50." Id. ¶ 12; see id., Ex. J (June 2, 2000 letter from from A.P. Graham, Disclosure Specialist, ATF, Ref. 00-1499). The ATF released the remaining redacted pages on receipt of Plaintiff's payment in full of the copying fees. See id., Ex. L (July 3, 2000 letter from A.P. Graham, Ref. 00-1499).

In July 2000, Plaintiff submitted three FOIA requests to the ATF. See Compl. ¶¶ 5-6; Graham Decl. ¶¶ 15-17. In his first request, Plaintiff acknowledged receipt of the records released on July 3, 2000, and in addition sought release of "all pen registers, surve[i]llance logs, and toll records" for the period from "April 1986 to July 1986 . . . at 11882 San Remo." Graham Decl., Ex. M (July 17, 2000 letter from Plaintiff, Ref. 00-1499). Plaintiff believed that this information would be found in what he labelled the ATF's "1983 investigation file." Compl. ¶ 5. In his second request, Plaintiff sought "information maintained in [ATF] files on a Fred Knox, who was killed in St. Louis, Missouri on October 3, 1990," including "interviews of Mr. Knox and ATF agents in St. Louis between April 1989 and November 1990." Graham Decl., Ex. N (July 27, 2000 letter, Ref. "ATF Records on Fred Knox"). In his third request, Plaintiff sought "all records of a pen-register that the ATF . . . had on [his] telephone . . . from April 1986 through July 31, 1986," including "all surve[i]llance logs, notes, and any debriefing reports and photos." Id., Ex. P (July 27, 2000 letter, Ref. "ATF Records on Jerry Lewis Bey From May 1, 1986-July 31, 1986").

The ATF responded to the July 2000 requests by refusing to release pen register records under FOIA Exemptions 7(C) and 7(E), by stating that it found no videotapes, by releasing some information pertaining to Mr. Knox, and by denying the existence of a 1983 investigation file. Graham Decl. ¶ 19 & Ex. S (September 29, 2000 letter from A.P. Graham, Ref. 00-2239). According to the ATF, the only investigative file it maintained was "a 1988 case file," noting that "prior to that time ATF could have been part of a task force and was not necessarily the lead agency" conducting the investigation as Plaintiff suggested.*fn2 Id., Ex. S.

In subsequent FOIA requests, Plaintiff sought records which he believed were gathered by ATF Special Agents in 1983. See Graham Decl. ¶¶ 20, 23 & Ex. T (May 11, 2001 letter, Ref. "FOIPA Disclosure on Jerry Lewis Bey And The Moorish Science Temple In 1983"), W (July 5, 2001 letter, Ref. 01-1718). The ATF maintained that it could not locate a 1983 investigative file. Id. ¶¶ 21-22, 24 & Ex. U, V, X (June 20, 2001, June 26, 2001, and July 23, 2001 letters from A.P. Graham). However, the ATF located a 1988 file "pertaining to the 'Moorish Science Temple'" which was "available upon request (ATF investigative file 33290 88 1540G).'" Id. ¶ 24. The ATF "deemed [the 1988 investigative file] not responsive since it is a 1988 case, and not a 1983 case as [Plaintiff] requested." Id., Ex. X (July 23, 2001 letter from A.P. Graham, Ref. 01-1869).

This 1988 investigative file pertaining to the Moorish Science Temple of America was the subject of Plaintiff's next FOIA request. Graham Decl. ¶ 25 & Ex. Y (July 31, 2001 letter, Ref. 01-1869). "Upon consultation with the United States Attorney's Office (USAO) for the Eastern District of Missouri (EDMO)," id. ¶ 26 n.4, the ATF determined that Plaintiff's criminal case remained open on appeal.

Id. ¶ 26. For this reason, the ATF refused to release the 1988 investigative file under FOIA Exemption 7(A). Id. & Ex. Z (August 13, 2001 letter from A.P. Graham, Ref. 01-2089). In addition, it relied on FOIA Exemptions 2, 7(C), and 7(E). Id., Ex. Z.

On July 30, 2003, Plaintiff submitted a FOIA request for "a copy of a June 7, 1983 ATF report written by [a] Special Agent . . . of the Bureau of Alcohol, Tobacco and Firearms" and for release of the entire 1988 investigative file. Graham Decl., Ex. PP (July 30, 2003 FOIA request, later designated Ref. 03-2174). This request led to the discovery of the 1983 investigative file (ATF File No. 33920 83 1501Y) in the office of the St. Louis Field Division, id. ¶ 41 n.6, the same 1983 investigative file that the agency steadfastly had denied existed. The ATF nonetheless refused to release the 1983 file under FOIA Exemption 7(A) because the requested records "related to an ongoing investigation." Id. ¶ 42; see id., Ex. QQ (August 12, 2003 letter from A.P. Graham, Ref. 03-2174).

The last FOIA request relevant to this civil action was for ATF File No. 7665 0683 1501 L (01), which pertained to Plaintiff and the Moorish Science Temple of America. Compl. ¶ 24; Graham Decl. ¶ 45 & Ex. TT (January 24, 2004 FOIA request). This file was part of the larger 1983 investigation file, ATF File No. 33920 83 1501Y, which had been withheld under Exemption 7(A).*fn3 Graham Decl. ¶¶ 41, 45. The ATF refused to release the requested file under FOIA Exemption 7(A). Id. ¶ 46 & Ex. UU (February 19, 2004 letter from A.P. Graham, Ref. 04-777 AG).

On the mistaken belief that there were no further criminal proceedings pending, the ATF released to Plaintiff a redacted copy of the June 7, 1983 report. Graham Decl. ¶ 44 & Ex. SS (January 6, 2004 letter from A.P. Graham, Ref. 03-2174). Plaintiff's subsequent efforts to secure release of the entire 1983 and 1998 investigative files were unsuccessful when it became known that criminal proceedings were ongoing. See Graham Decl. ¶¶ 45-60.

In his Complaint, Plaintiff alleges that the ATF fails to comply with FOIA as it refuses to release records pertaining to himself and to the Moorish Science Temple of America "located in [ATF] file 7665 0683 1501 (01), which [] originated out of the [ATF] St. Louis field office." Compl. ¶ 1. This file is the subject of Plaintiff's January 24, 2004 FOIA request and is a part of the 1983 investigation file, ATF File No. 33920 83 1501 Y. See Graham Decl. ¶¶ 41, 45 n.9 & Ex. TT. In addition, Plaintiff alleges that the ATF refuses to release records ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.