No. 95-804 In the Supreme Court of the United States OCTOBER TERM, 1995 UNITED STATES DEPARTMENT OF JUSTICE AND FEDERAL BUREAU OF INVESTIGATION, PETITIONERS v. SETH ROSENFELD ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT PETITION FOR A WRIT OF CERTIORARI DREW S. DAYS, III Solicitor General FRANK W. HUNGER Assistant Attorney General EDWIN S. KNEEDLER Deputy Solicitor General IRVING L. GORNSTEIN Assistant to the Solicitor General LEONARD SCHAITMAN FREDDI LIPSTEIN ROBERT M. LOEB Attorneys Department of Justice Washington, D.C. 20530 (202) 514-2217 ---------------------------------------- Page Break ---------------------------------------- QUESTIONS PRESENTED 1. Whether the Federal Bureau of Investigation properly treated its investigative records at issue in this case as "records or information compiled for law enforcement purposes" within the meaning of Exemption 7 of the Freedom of Information Act (FOIA), 5 U.S.C. 552(b)(7). 2. Whether factual determinations made by a district court on summary judgment in a FOIA case, like such determinations made on summary judgment in other cases, are subject to de novo appellate review to determine whether there is a genuine issue of material fact. (I) ---------------------------------------- Page Break ---------------------------------------- TABLE OF CONTENTS Page Opinions below . . . . 1 Jurisdiction . . . . 2 Statutory provisions involved . . . . 2 Statement . . . . 2 Reasons for granting the petition . . . . 10 Conclusion . . . . 28 Appendix A . . . . 1a Appendix B . . . . 27a Appendix C . . . . 84a Appendix D . . . . 132a Appendix E . . . . 133a TABLE OF AUTHORITIES Cases: Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970) . . . . 26 Anderson v. City of Bessemer City, 470 U.S. 564 (1985) . . . . 26 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) . . . . 25 Arenberg v. DEA, 849 F.2d 579 (llth Cir. 1988) . . . . 16 Becker v. IRS, 34 F.3d 398 (7th Cir. 1994) . . . . 24 Binion v. United States Dep't of Justice, 695 F.2d 1189 (9th Cir. 1983) . . . . 6-7 Bowers v. United States Dep't of Justice, 930 F.2d 350 (4th Cir.), cert. denied, 502 U.S. 911 (1991) . . . . 25 Calhoun v. Lyng, 864 F.2d 34 (5th Cir. 1988) . . . . 24 Church of Scientology v. United States Dep't of Army, 611 F.2d 738 (9th Cir. 1979) . . . . 8, 15, 24 Church of Scientology, Int'l v. United States Dep't of Justice, 30 F.3d 224 (lst Cir. 1994) . . . . 24 Curran v. Department of Justice, 813 F.2d 473 (lst Cir. 1987) . . . . 13 (III) ---------------------------------------- Page Break ---------------------------------------- Cases-Continued: Page Davin v. United States Dep't of Justice, 60 F.3d 1043 (3d Cir. 1995) . . . . 16 Department of Air Force v. Rose, 425 U.S. 352 (1976) . . . . 23 Eastman Kodak Co. v. Image Technical Ser- vices, Inc., 504 U.S. 451 (1992) . . . . 26 Ethyl Corp. V. EPA, 25 F.3d 1241 (4th Cir. 1994) . . . . 25 FBI v. Abramson, 456 U.S. 615 (1982) . . . . 17 FTC v. Grolier Inc., 462 U.S. 19 (1983) . . . . 20 Gallant v. NLRB, 26 F.3d 168 (D.C. Cir. 1994) . . . . 24 Hale v. United States Dep't of Justice, 973 F.2d 894 (lOth Cir. 1992), vacated and re- manded, 1138. Ct. 3029, modified on remand, 2F.3d 1055 (10th Cir. 1993) . . . . 24 Irons v, Bell, 596 F.2d 468 (lst Cir. 1979) . . . . 13, 17, 18, 23 John Doe Agency v. John Doe Corp., 493 U.S. 146. (1989) . . . . 12, 18 Jones v. FBI, 41 F.3d 238 (6th Cir. 1994) . . . . 13, 14 17,22,25 King v. United States Dep't of Justice, 830 F.2d 210 (D.C. Cir. 1987) . . . . 16 Kuehnert v. FBI, 620 F.2d 662 (8th Cir. 1980) . . . . 13 Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 113 S. Ct. 1160 (1993) . . . . 27 Manna v. United States Dep't of Justice, 51 F.3d 1158 (3d Cir. 1995), cert. denied, No. 95-464 (Nov. 13, 1995) . . . . 24 Miscavige v. IRS, 2 F.3d 366 (11th Cir. 1993) . . . . 24 NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214 (1978) . . . . 20 Petroleum Info. Corp. v. United States Dep't of Interior, 976 F.2d 1429 (D.C. Cir. 1992) . . . . 24 ---------------------------------------- Page Break ---------------------------------------- Cases-Continued: Page Pratt v. Webster, 673 F.2d 408 (D.C. Cir. 1982) . . . . 8, 15, 20, 21 Shaw v. FBI, 749 F.2d 58 (D.C. Cir. 1984) . . . . 16, 22 United States v. Diebold, Inc., 369 U.S. 654 (1962) . . . . 26 United States Dep't of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749 (1989) . . . . 20, 21 Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974) . . . . 3 Williams v. FBI, 730 F.2d 882 (2d Cir. 1984) . . . . 13, 14, 17, 18 Statutes and rules: Communist Control Act of 1954, 50 U.S.C. 841- 844 . . . . 4 Freedom of Information Act, 5 U.S.C. 552 . . . . 2 5 U.S.C. 552(a)(3) . . . . 12 5 U.S.C. 552(b)(7) (Exemption 7) . . . . passim 5 U.S.C. 552(b)(7)(C) (Exemption 7(C)) . . . . 2-3, 5 6, 17,23 5 U.S.C. 552(b)(7)(D) (Exemption 7(D)) . . . . 2-3, 5 6, 17, 23 Subversive Activities Control Act of 1950, 50 U.S.C. 781-798 . . . . 4 10 U.S.C. 332 . . . . 4 10 U.S.C. 333 . . . . 4 18 U.S.C. 231 . . . . 4 18 U.S.C. 245(b)(3) . . . . 4 18 U.S.C. 2101 . . . . 4 18 U.S.C. 2383 . . . . 3-4 18 U.S.C. 2384 . . . . 4 18 U.S.C. 2385 . . . . 4 Fed. R. Civ. P.: Rule 56 . . . . 11, 25, 26 Rule 56(c) . . . . 25 ---------------------------------------- Page Break ---------------------------------------- VI Miscellaneous: Page 112 Cong. Rec. 13,659 (1966) . . . . 21 120 Cong. Rec. (1974): p. 17,034 . . . . 21 p. 36,878 . . . . 21 p. 36,879 . . . . 21 H.R. Rep. No. 1497, 89th Cong., 2d Sess. (1966) . . . . 21 6 J. Moore, Moore's Federal Practice (2d ed. 1995) . . . . 26 Note, Threshold Requirements for the FBI Under Exemption 7 of the Freedom of Infor- mation Act, 86 Mich. L. Rev, 620 (1987) . . . . 16 S. Rep. No. 813, 89th Cong., 1st Sess. (1965) . . . . 21 10 C. Wright, A. Miller, & M.K. Kane, Federal practice and Procedure (2d ed. 1983) . . . . 26 ---------------------------------------- Page Break ---------------------------------------- In the Supreme Court of the United States OCTOBER TERM, 1995 No. UNITED STATES DEPARTMENT OF JUSTICE AND FEDERAL BUREAU OF INVESTIGATION, PETITIONERS v. SETH ROSENFELD ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT PETITION FOR A WRIT OF CERTIORARI The Solicitor General, on behalf of the United States Department of Justice and the Federal Bureau of Investigation, respectfully petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Ninth Circuit in this case. OPINIONS BELOW The opinion of the court of appeals (App., infra, la- 26a) is reported at 57 F.3d 803. The opinion of the district court (App., infra, 27a-83a) is reported at 761 F. Supp, 1440. The opinion of the magistrate (App., infra, 84a-131a) is unreported. (1) ---------------------------------------- Page Break ---------------------------------------- 2 JURISDICTION The judgment of the court of appeals was entered on June 12, 1995. A petition for rehearing was denied on August 24, 1995. App., infra, 132a. The jurisdic- tion of this Court is invoked under 28 U.S.C. 1254(1). STATUTORY PROVISIONS INVOLVED The relevant provisions of the Freedom of Informa- tion Act, 5 U.S.C. 552, are reproduced at App., infra, 133a-135a. STATEMENT 1. Respondent Seth Rosenfeld filed requests with the Federal Bureau of Investigation (FBI) under the Freedom of Information Act (FOIA), 5 U.S.C. 552, for information relating to investigative activities of the FBI at the University of California, Berkeley (UC Berkeley). Respondent specifically sought informa- tion concerning the Free- Speech Movement (FSM), Clark Kerr, Marguerite Higgins, and a six other subjects not at issue here. The FSM organized dem- onstrations at UC Berkeley in the 1960s. Kerr was Chancellor of UC Berkeley from 1952 to 1958 and President of the UC system from 1958 to 1967. Higgins was married to a high-ranking military officer and wrote about the FSM as a journalist. The FBI released some of the documents bearing on those three subjects in their entirety, released some in redacted form, and withheld others in their entirety. App., infra, la-2a, 28a-30a. Respondent filed suit in the United States District Court for the Northern District of California seeking release of all withheld information from the FSM, Kerr, and Higgins files. In resisting disclosure, the government relied primarily on FOIA Exemptions ---------------------------------------- Page Break ---------------------------------------- 3 7(C) and 7(D). Exemption 7(C) protects "records or information compiled for law enforcement purposes * * * [which] could reasonably be expected to constitute an unwarranted invasion of personal pri- vacy." 5 U.S.C. 552(b)(7)(C). Exemption 7(D) protects "records or information compiled for law enforcement purposes * * * [which] could reasonably be expected to disclose the identity of a confidential source." 5 U.S.C. 552(b)(7)(D). At issue in this petition is the meaning of the threshold requirement common to both that the records or information must be "compiled for law enforcement purposes." 2. The district court referred the case to a magistrate. The government submitted a Vaughn index of a representative sample of documents, ex- plaining the justification for withholding information in those documents. See Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974). The government also submitted declarations from FBI agents explaining the law enforcement purposes of the FSM, Higgins, and Kerr materials and de- tailing the grounds for withholding information to protect the privacy of third persons and the identity of confidential sources. One of the declarations explained that the FBI initiated its investigation of the FSM on the basis of evidence that the FSM "was heavily influenced, if not at times controlled, by individuals who were" members of or affiliated with subversive organizations." C.A. E.R. 763. In particular, the declaration noted, two of the FSM's leaders and several other prominent members of the FSM were affiliated with subversive organizations. Ibid. The FBI had authority under several statutes to investigate the activities of sub- versive organizations. Id. at 158 (citing 18 U.S.C. ---------------------------------------- Page Break ---------------------------------------- 4 2383 (rebellion. or insurrection); 18 U.S.C. 2384 (seditious. conspiracy); 18 U.S.C. 2385 (advocating the overthrow of the government); 50 U.S.C. 781-798 (Subversive Activities Control Act of 1950); 50 U.S.C. 841-844 (Communist Control Act of 1954)). The FBI also investigated the FSM because of the potential for civil disorder." C.A.E.R. 763. The FSM engaged in numerous acts of civil -disobedience that gave rise to that concern, including the occupation of Sproul Hall on the UC Berkeley campus that resulted in the arrest of approximately 800 demonstrators. Id. at 763-764. The FBI had authority under several stat- utes to report on civil disorders. Id. at 158 (citing 10 U.S.C. 332 and 333; 18 U.S.C. 231, 245(b)(3) and 2101). Another FBI declaration explained that the in- vestigation of Higgins "began after it was learned in 1950 that Higgins was going to marry an Air Force Major General who was Chief of Intelligence for the European Command." C.A.E.R. 163. That marriage was of concern to the FBI because "Higgins had pre- viously been married to a communist." Ibid. The FBI conducted its investigation of Higgins "principally during 1954 and 1955, to clarify information con- cerning her association or contact with [members Of the Communist Party] and sympathizers during the 1940's." Ibid: Because of her marriage to a high- ranking officer and her prior association with com- munists, the FBI was concerned about the possibility y of "espionage, counter-espionage and sabotage." ibid. The FBI declarations disclosed that the FBI con- ducted four background investigations of Kerr. In 1947, the Atomic Energy Commission (AEC) re- quested an FBI investigation of Kerr because the AEC was considering him for appointment as an advisor. C.A.E.R: 168. In 1952, the AEC requested ---------------------------------------- Page Break ---------------------------------------- 5 another investigation of Kerr because his position as Chancellor of UC Berkeley gave him access to classi- fied material. Ibid. In 1958, the White House re- quested a background investigation of Kerr for possible appointment to the International Develop- ment Advisory Board. Id. at 167. Finally, in 1964, the White House requested an investigation of Kerr for possible appointment to the Board of the Communica- tions Satellite Corporation. Id. at 169. In addition, because Kerr was a prominent individual, the FBI continually received unsolicited information about him. Id. at 766. The FBI placed that information into its existing investigative files. Id. at 766-767. The declarations identified several categories of information that were withheld under Exemption 7(C) to protect the privacy of third persons. That infor- mation included the names of FBI agents, the names of state and local law enforcement officials, informa- tion that would reveal an investigative interest in third parties, the names and identifying information of persons who provided information to the FBI, and other similar information. C.A.E.R. 187-188, 202-213. Pursuant to Exemption 7(D), the FBI withheld information that would identify confidential sources, including sources who had been assigned permanent symbol numbers. The identities of symbol sources are so sensitive that they are not revealed even within the FBI except on a "need-to-know" basis. C.A. E.R. 188, 213-215. In many instances, the symbol sources were members of organizations that advocated the violent overthrow of the government or that engaged in terrorist acts. Id. at 215-216. Dis- closing the identity of some of those sources would have exposed the sources and their families to a risk of retaliation. E.g., C.A. Supp. E.R. B63, B65-B66. ---------------------------------------- Page Break ---------------------------------------- 6 After considering the government's declarations, respondent's opposing declarations, and the docu- ments themselves, the magistrate submitted her re- port to the district court. App., infra, 84a-131a. Viewing the question as "extremely close," the mag- istrate assumed for purposes of her recommendation that the relevant documents were all compiled for law enforcement purposes, Id. at 88a. On that assump- tion, the magistrate recommended upholding some of the withholdings under Exemptions 7(C) and 7(D) and rejecting others. Id. at 93a-130a. Although the magistrate declined to adopt the view that symbol sources should automatically be treated as con- fidential sources, she inferred an implied assurance of confidentiality based on a fact-pattern common to all of the symbol sources involved in the FSM, Kerr, and Higgins investigations-that they operated as informants who attended small meetings of sub- versive groups. Id. at 89a-90a. 3. After reviewing the magistrate's report and conducting its own review, the district court issued its decision. App., infra, 27a-83a. The court held that in order to satisfy the threshold standard under Exemption 7 that the records were compiled for law enforcement purposes, the government was required to show a" rational nexus' between its enforcement duties and the document for which Exemption 7 is claimed." Id. at 34a (quoting Binion v. United States Dep't of Justice, 695 F.2d 1189, 1193-1194 (9th Cir. 1983)). Applying that test, the court found "sufficient evidence that the investigating [of the FSM] was opened and initially pursued for the legitimate purpose of ascertaining the role of subversive organi- zations in the FSM, and the potential for civil disorder in connection with the campus protest." Id. ---------------------------------------- Page Break ---------------------------------------- 7 at 38a. Relying principally on an FBI investigative memorandum dated January 19, 1965, however, the court found that, by that date, the FBI had concluded that "the FSM was not controlled by subversive organizations" and that "neither national security nor civil disorder were threatened by the campus protests." Id. at 45a. At that point, the court determined, the FBI's investigation "appears to have become a case' of routine monitoring of the FSM for intelligence purposes." Id. at 45a-46a. The court therefore treated January 19, 1965, "as a cut-off point for the scope of a law enforcement purpose exemption under [5 U.S.C. 552(b) (7)]," and ordered all FSM documents compiled after that date disclosed, unless protected by another exemption. Id. at 46a-47a. The court adopted with only minor changes the magis- trate's rulings on the privacy and confidentiality claims relating to the pre-January 19, 1965, FSM documents. Id. at 46a, 48a-49a. See generally id. at 50a-61a. The court then ordered the FBI to apply the "representative rulings" to all the documents re- sponsive to respondent's FOIA request and to release all non-exempt materials. Id. at 49a. The district court found "nothing in the Higgins documents that indicates any legitimate law. enforce- ment purpose." App., infra, 47a. The court also found that the Kerr documents "as a whole * * * do not relate to any investigation performed in connection with a legitimate law enforcement purpose." Ibid. The court therefore `ordered the entire Higgins and Kerr files released, except for a few records in the Kerr files found to be covered by Exemption 7 and material protected by other exemptions. Id. at 47a- 48a, 67a-79a. ---------------------------------------- Page Break ---------------------------------------- 8 4. With two limited exceptions, the court of appeals affirmed the district court's rulings. App., infra, 1a- 26a. The court of appeals first held that it would review factual issues arising from the district court's grant of summary judgment under a "special stan- dard" applicable only to FOIA cases. Id. at 4a. As explained by the court, "[i]nstead of determining whether a genuine issue of material fact exists, * * * [w]e inquire whether an adequate factual basis supports the district court's rulings [and] [i]f such a basis exists, we overturn the ruling only if it is clearly erroneous." Ibid. The court next held that to satisfy the Exemption 7 threshold, the government was required to "establish a 'rational nexus' between enforcement of a federal law and the document for which [a law enforcement] exemption is claimed." Id. at 7a (quoting Church of Scientology v. United States Dep't of Army, 611 F.2d 738, 748 (9th Cir. 1979) (brackets added by the court below)). Under that approach, the court of appeals explained, a court should not second-guess the FBI's decision to investigate if there is a "plausible basis" for the decision. Id. at 8a. But it made clear that a "court need not accept the government's claim that a previous investigation had a law enforcement purpose if the asserted purpose is 'pretextual or wholly unbelievable.'" Id. at 7a-8a (quoting Pratt v. Webster, 673 F.2d 408, 421 (D.C. Cir. 1982)). Applying the rational nexus test and the clearly erroneous stan- dard of review, the court then affirmed as not clearly erroneous the district court's findings that the post- January 19, 1965, FSM documents, the Higgins documents, and most of the Kerr documents were not compiled for law enforcement purposes. Id. at 8a-14a. ---------------------------------------- Page Break ---------------------------------------- 9 The court of appeals specifically held that the district court "did not clearly err in determining that any post-cutoff law enforcement purpose was invoked only as a pretext to monitor the subjects of the FSM investigation." App., infra, 13a. In reaching that conclusion, the court cited several documents from the FSM files, including the January 19, 1965, memorandum, which reported that there was no evidence that the FSM and UC demonstrations were controlled by communists. Id. at 14a. With respect to the Higgins documents, the court of appeals held that the evidence that the FBI investigated her as a security precaution because she was married to an intelligence officer "would demon- strate a plausible law enforcement purpose." App., infra, 8a. The court concluded, however, that evi- dence that the FBI did not investigate Higgins until four years after her marriage, "contemporaneously with a tour of Russia by her," "suggested that the government's purpose was a pretext to investigate her for her activities in the Soviet Union, and the district court did not clearly err in finding that the asserted purpose was in fact pretextual." Ibid. With respect to the Kerr documents, the court held that the evidence that the FBI conducted four back- ground investigations of Kerr was sufficient to show that the documents connected to those investigations "were compiled with a rational nexus to a law enforcement purpose." App., infra, 9a-10a. The court observed, however, that "the government's evidence does not preclude the possibility that the asserted purpose for which these documents were compiled was pretextual. Nor did compel the district court or compel us now to find that the rest of the docu- ments in the Kerr file were compiled with the same ---------------------------------------- Page Break ---------------------------------------- 10 purpose." Id. at ll0a. The court stated that re- spondent had "introduced evidence showing that the FBI waged a concerted effort in the late 1950s and 1960s to have Kerr fired from the presidency of UC Berkeley." Ibid.; see id. at 10a-lla. That evidence, the court concluded, supported "a presumption that any other documents compiled after the campaign against Kerr began were compiled with no rational nexus to an asserted law enforcement purpose." Id. at 11a. With the- exception of the reports on Kerr's background investigations, the court concluded, the presumption could not be rebutted. The court there- fore affirmed the district court's finding of no law enforcement purpose with respect to the documents other than the: background reports. It reversed the district court's finding of no law enforcement purpose for the 1953 background report, which preceded the alleged campaign against Kerr, and it remanded for a determination whether the 1964 background report was compiled for a legitimate purpose. Id. at lla-12a. REASONS FOR GRANTING THE PETITION Exemption 7 of the Freedom of Information Act protects from "mandatory public disclosure "records or information compiled for law enforcement pur- poses," when production of the documents could lead to an unwarranted invasion of personal privacy, dis- closure of a confidential source, or one of four other specified harms. 5 U.S.C. 552(b)(7). Four courts of appeals have held that FBI investigative records inherently meet the threshold requirement of having been "compiled for law enforcement purposes." Those courts do not require that the FBI affirmatively establish as a factual matter in each case-perhaps many years after an investigation has been closed- ---------------------------------------- Page Break ---------------------------------------- 11 the specific law enforcement reasons for which parti- cular investigative records were compiled. By con- trast, the court below and two other courts of appeals have held that, in order to satisfy the threshold requirement, the FBI must affirmatively demon- strate that the particular investigative records at issue bear a "rational nexus" to the enforcement of federal law or protection of national security. The Ninth Circuit's holding to that effect in this case is inconsistent with the principle established in this Court's cases that the Exemption 7 threshold should be construed in a functional manner to. avoid the release of the kind of sensitive information protected by that Exemption. The ruling below would require the FBI to disclose the identity of numerous con- fidential sources, some of whom may be exposed to a genuine risk of retaliation, and it threatens the FBI's ability to perform its law enforcement mission Re- view by this Court is therefore warranted. This case also presents the question of what stan- dard of appellate review should be applied to deter- minations made by the district court in ruling on a motion for summary judgment in FOIA cases. There is a sharp conflict in the circuits on that issue as well. Four courts of appeals, including the Ninth Cir- cuit in this case, review such determinations under a clearly erroneous standard. By contrast, four other courts of appeals review de novo a district court's determination of whether there is a genuine issue of material fact. The clearly erroneous standard of re- view cannot be reconciled with Federal Rule of Civil Procedure 56, which precludes the entry of summary judgment when there is a genuine issue of material fact, and contains no exception for FOIA cases. Re- view on that issue is also warranted. ---------------------------------------- Page Break ---------------------------------------- 12 1. a. Under the FOIA, a federal agency's records are generally subject to full disclosure. 5 U.S.C. 552(a)(3). Because public disclosure is not always in the public interest, however, the Act contains nine exemptions. Exemption 7, at issue here, allows an agency to withhold "records or information compiled far law enforcement purposes," to the extent that the production of such records or information could lead to one or more of six specified harms. 5 U.S.C. 552(b)(7). Those harms include: (A) interference with an enforcement proceeding, (B) deprivation of a fair trial, (C) an unwarranted invasion of personal privacy, (D) disclosure of a confidential source, (E) disclosure of a law enforcement technique, and (F) endanger- ment of a person's life or physical safety. Ibid. As the text of Exemption 7 makes clear, to justify the withholding of records under Exemption 7, the government must establish that the records are "compiled for law enforcement purposes" and that "disclosure would effectuate one or more of the six specified harms." John Doe Agency v. John Doe Corp., 493 U.S. 146, 156 (1989). Accordingly, if a government agency seeking to withhold documents is unable to establish that the records fall within the threshold category, the consequence is that it may not invoke Exemption 7 to protect even the most sensitive information in its files. Given that serious consequence, the proper construction of the threshold requirement is of crucial importance. b. The courts of appeals are sharply divided on the proper stand-red for deciding whether FBI investi- gative records satisfy the law-enforcement purposes threshold. Recognizing that FBI investigative rec- ords are precisely the kind of records that Congress intended to protect under Exemption 7, four circuits ---------------------------------------- Page Break ---------------------------------------- 13 have held that such records are inherently "compiled for law enforcement purposes." Irons v. Bell, 596 F.2d 468,473-476 (lst Cir. 1979); Williams v. FBI, 730 F.2d 882,884-885 (2d Cir. 1984); Jones v. FBI, 41 F.3d 238, 245-246 (6th Cir. 1994); Kuehnert v. FBI, 620 F.2d 662, 666 (8th Cir. 1980). Irons is the leading case. There, the First Circuit concluded that the FBI had failed to show as a factual matter that some of the documents it had withheld were related to the enforcement of a federal law. 596 F.2d at 472. The court held, however, that the absence of such particularized proof was not fatal to the government's Exemption 7 claim, because Congress viewed the investigative records of law enforcement agencies as "inherently records compiled for `law enforcement purposes'" Id. at 475; see also Curran v. Department of Justice, 813 F.2d 473, 474-475 (lst Cir. 1987) ("[T]he Bureau's files, generally, bask under [the] prophylactic umbrella [of Exemption 7]."). In Kuehnert, the Eighth Circuit also concluded that the government had failed to produce particular- ized proof of a connection between certain documents it had withheld and the enforcement of any federal law. 620 F.2d at 665-666. The court nonetheless held that the documents were protected by Exemption 7. Id. at 666-667. Agreeing with the First Circuit's deci- sion in Irons, the court held that, "because the docu- ments here in issue comprise investigatory records of a criminal law enforcement agency, * * * they meet exemption 7's threshold requirement of having been `compiled for law enforcement purposes.'" Ibid. In Williams, the Second Circuit reached a conclu- sion that "substantially accords with that adopted by the First and Eighth Circuits." 730 F.2d at 886. In Williams, the district court had denied the FBI's ---------------------------------------- Page Break ---------------------------------------- 14 Exemption 7 claim based on its view that the group investigated could not credibly have been regarded as posing any threat of a criminal offense. Id. at 883. The Second Circuit reversed, holding that "Congress assumed that all investigatory records of the FBI were compiled for a law enforcement purpose," id. at 884, and that such records are therefore protected under Exemption 7 "whether or not the reviewing judicial tribunal believes there was a sound law en- forcement basis for the particular investigation," id. at 883. Finally, in Jones, the Sixth Circuit expressed its general agreement with the test adopted by the First, Second, and Eighth Circuits, which it characterized as "a per se rule, under which records compiled by a law enforcement agency qualify as `records compiled for law enforcement purposes' under FOIA" 41 F.3d at 245. The court cautioned that "there may be cases in which an investigation is so far beyond the author- ity of the agency or so Gestapo like-in its methods that we would say that it does not meet the test for the law enforcement exception." Id. at 246. Finding that the FBI's methods in that case "were not so far out of bounds that the overall investigation is outside the law enforcement exception," however," the court concluded that the documents at issue were compiled for law enforcement purposes. Ibid. In contrast, the standard articulated by the court of appeals in this case provides for a district court to inquire into the motives and justifications for the particular FBI investigation that is the subject of the records requested under the FOIA, in order to deter- mine whether the investigation was in fact legiti- mate. Thus, the court below specifically held that, to satisfy the law enforcement threshold, the govern- ---------------------------------------- Page Break ---------------------------------------- 15 ment is required to "establish a 'rational nexus' be- tween enforcement of a federal law and the document for which [a law enforcement] exemption is claimed." App., infra, 7a (quoting Church of Scientology United States Dep't of Army, 611 F.2d 738, 748 (9th Cir. 1979) (brackets added by court below)). Under that approach, a court may reject the government's claim that a prior investigation had a law enforcement purpose if the court concludes, on the basis of its own assessment, that "the asserted purpose is `pretextual or wholly unbelievable.'" Id. at 7a-8a (quoting Pratt v. Webster, 673 F.2d 408,421 (D.C. Cir. 1982)). As the foregoing quotation from Pratt v. Webster indicates, the Ninth Circuit in this case purported to follow the approach articulated by the D.C. Circuit. In Pratt, the D.C. Circuit held that "there are two critical conditions that must be met for a law enforcement agency to pass the Exemption 7 threshold." 673 F.2d at 420. First, "the agency should be able to identify a particular individual or a particular incident as the object of its investigation and the connection between that individual or incident and a possible security risk or violation of federal law." Ibid. 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." Id. at 421 (emphasis omitted). The agency's basis for the claimed connection, the court added, could not be "pretextual or wholly unbelievable." Ibid. In subsequent cases, the D.C. Circuit has clarified that, under its approach, when the government meets both prongs of the Pratt test, the burden shifts to the plaintiff to produce evidence that the asserted law enforcement rationale for an investigation is in fact ---------------------------------------- Page Break ---------------------------------------- 16 pretextual. King v. United States Dep't of Justice, 830 F.2d 210,231-232 (1987); Shaw v. FBI, 749 F.2d 58, 63-64 (1984) (Scalia, J.). The government's initial showing is judged under an "objective" standard and "suffices to establish the exemption only if it is unrefuted by persuasive evidence that in fact another, nonqualifying reason prompted the investigation." Shaw, 749 F.2d at 63-64. The Third Circuit takes the same approach. In Davin v. United States Dep't of Justice, 60 F.3d 1043, 1053-1056 (1995), the Third Circuit expressly adopted "the two-prong `rational nexus' test articulated by the Court of Appeals for the District of Columbia Circuit in Pratt." Id. at 1056. Thus, the conflict in the circuits on the standard for determining whether FBI investigative records have been compiled for law enforcement purposes could not be clearer. See Arenberg v. DEA, 849 F.2d 579, 580-581 (llth Cir. 1988) (noting the circuit conflict); Note, Threshold Requirements for the FBI Under Exemption Y of the Freedom of Information Act, 86 Mich, L. Rev, 620 (1987) (discussing the circuit conflict). This Court should grant certiorari to resolve the circuit-conflict on that recurring issue. c. The Ninth Circuit seriously misconstrued the threshold standard in holding that the FBI's investi- gative records satisfy the law enforcement purpose threshold in a case such as this only if the govern- ment can affirmatively persuade a court on the facts of the particular case that there was a plausible basis for the investigation. and that its asserted purposes were not pretextual. This Court has deemed it "critical that the compiled-for-law-enforcement re- quirement be construed to avoid the release of infor- mation that would produce the undesirable results ---------------------------------------- Page Break ---------------------------------------- 17 specified [in Exemption 7]." FBI v. Abramson, 456 U.S. 615, 630 (1982). The Ninth Circuit's approach has the opposite effect. For example, Exemption 7(D) is intended "to pro- tect the confidentiality of sources and thus to en- hance the ability of federal agencies to gain their cooperation." Jones, 41 F.3d at 245. Under the Ninth Circuit's approach, however, the government's ability to protect such sources would "turn on the vagaries of judicial hindsight as to the merits or wisdom of an investigation." Williams, 730 F.2d at 885. Faced with such a risk of exposure, potential sources might well refuse to cooperate with the government in the first place, thereby creating a very real danger of "re- stricting the flow of essential information to the Government." FBI v. Abramson, 456 U.S. at 628 n.12. Similarly, Exemption 7(C) protects against "unwar- ranted invasions] of personal privacy." 5 U.S.C. 552(b)(7)C). Yet the Ninth Circuit's nexus test would protect an individual's personal privacy under Exemp- tion 7 only when the FBI is subsequently able to sat- isfy a court that its investigative activities furthered law enforcement purposes. If a court concludes that the FBI's decision to investigate was not objectively justified or that the asserted investigative purpose is pretextual, the Ninth Circuit's approach would preclude reliance on Exemption 7 to protect that individual's privacy. Such a result "would harm innocent individuals who had no way to test the legality of an FBI investigation," Irons, 596 F.2d at 474. Because the Ninth Circuit's approach "subjects informants to revelation and possible reprisals" and "threatens private citizens with the exposure of personal secrets" whenever a district court deter- mines through hindsight that an FBI investigation ---------------------------------------- Page Break ---------------------------------------- 18 was unfounded, it produces a result that is "wholly at odds with the purposes of Exemption 7." Williams, 730 F.2d at 885. The Ninth Circuit's rule is also inconsistent with this Court's insistence that the law-enforcement-pur poses threshold "is not to be construed in a non- functional way." John Doe Agency, 493 U.S. at 157. In particular, the Ninth Circuit's test places "an unmanageable burden upon district courts." Irons, 596 F.2d at 474. As the First Circuit has explained, "[a]t best, the district court would be forced, on a record grown cold after years or decades, to second or third guess the judgment of a Special Agent in Charge that an investigation was warranted." Ibid. This case is a good example of such judicial second- guessing. The district court found that the FBI opened its FSM investigation for the legitimate pur- pose of ascertaining the role of subversive organiza- tions in the FSM and the potential for civil disorder. App., infra, 12a-13a, 38a, 46a. The court found, how- ever, that, by January 19, 1965, that purpose had disintegrated, and the FBI began routine monitoring of the FSM for non-law enforcement purposes. Id. at 13a-14a, 46a-47a. In reaching that conclusion, the district court placed great weight on an FBI memo- randum dated January 19, 1965, which simply reported that the FBI did not have "sufficient information" to indicate the degree of influence that subversives were exercising over the FSM. Id. at 44a, 46a n.4; see C.A. E.R. 469. That same memorandum, however, stated that the FBI "will remain alert for further information which might tend to show the degree of influence." Ibid. The Ninth Circuit affirmed the district court's finding, reasoning that the district court "did not clearly err in determining that any ---------------------------------------- Page Break ---------------------------------------- 19 post-cutoff law enforcement purpose was invoked only as a pretext to monitor the subjects of the FSM investigation." App., infra, 13a. The district court's analysis (which the court of appeals affirmed), highlights the difficulties that en- sue when a court attempts to determine, years after the fact and on the basis of a cold record, whether the FBI had a sound basis for proceeding with an investigation and whether the government's asserted purposes were pretextual. It is commonplace for FBI agents to report that they have not yet discovered evidence of illegal activity, but that they will continue to monitor the situation. The FBI does not end an investigation every time the trail grows cold or a lead turns out to be a dead end. Under the Ninth Circuit's standard, however, when FBI agents continue to investigate without yet finding evidence of wrong- doing, they run the risk of later being found to have transformed a legitimate investigation into imper- missible monitoring. The case dramatically illustrates the unfortunate consequences of that approach. Because the district court concluded that the government failed to estab- lish a law enforcement purpose for the FSM docu- ments compiled after January 19, 1965, it ordered the government to release all FSM documents complied after that date. Our review indicates that release of those documents will disclose the identity of 89 sources who were assigned a permanent symbol num- ber and 28 non-symbol sources who were given express assurances of confidentiality. The identities of symbol sources are so sensitive that they are not revealed within the FBI except on a "need-to-know" basis. The symbol sources who would have to be disclosed under the district court's order include ---------------------------------------- Page Break ---------------------------------------- 20 members of subversive organizations who informed on those groups. See pages 5-6, supra. The danger that some of those symbol Sources will suffer serious reprisals if their identities are now revealed cannot be discounted. 1. d. In Pratt, the D.C. Circuit concluded that a per se rule that FBI investigative records are "compiled for law enforcement, purposes" cannot be squared with the plain language of Exemption 7, because in some extremely rare instances, law enforcement agencies might act outside the scope of their law enforcement mission and conduct investigations for non-law enforcement reasons. 673 F.2d at 415 & n.14, 417 n.19, 418.. This Court has held, however, that, in the interest of furthering the FOIA's purpose of "expediting disclosure by means-of workable rules," it is appropriate to adopt a "categorical rule" and to disregard individual circumstances when a class of information characteristically" fits within an ex- emption. United States Dep't of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 776,779 (1989); FTC v. Grolier Inc., 462 U.S. 19, 27-28 (1983]; NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214,224 (1978). That principle is applicable here. As the D.C. Circuit itself recognized in Pratt, "the FBI's investigative records are typically compiled for ___________________(footnotes) 1 Although the magistrate declined to adopt a per se rule that all symbol sources were confidential sources, she found that the fact pattern common to the symbol sources justified an inference of an implied assurance of confidentiality. App., infra, 89a-90a. The district court approved the magistrate's approach on that issue; Id. at 48a. Accordingly, but for the lower courts' ruling on the threshold issue of law enforcement purposes, all of the symbol sources connected with the FSM investigation would have been protected. ---------------------------------------- Page Break ---------------------------------------- 21 a law enforcement purpose," and "there is perhaps no better example of the usual application of Exemption 7." 673 F.2d at 415 n.14. Indeed, the legislative his- tory of both the original Act and the 1974 amendments to the Act leaves no doubt that Exemption 7 was primarily designed to protect the investigative ret- orals of the FBI. H.R. Rep. No. 1497, 89th Cong., 2d Sess. 2 (1966) (Exemption 7 protects "material such as the Federal Bureau of Investigation files"); S. Rep. No. 813, 89th Cong., 1st Sess. 3 (1965) ("It is * * * necessary for the very operation of our Government to allow it to keep confidential material, such as the investigatory files of the Federal Bureau of Investi- gation."); 112 Cong. Rec. 13,659 (1966) (Rep. Gal- lagher) (the bill "prevents the disclosure of `sensitive' Government information such as FBI files"); ibid. ("The FBI would be protected under exemption No. 7 "); 120 Cong. Rec. 17,034 (1974) (Sen. Kennedy) (referring to Exemption 7 records as "investigatory records of the FBI"); id. at 36,878 (Sen. Byrd) (same); id. at 36,879 (Sen. Mondale) (same). Moreover, as discussed above, the task of identifying rare instances in which FBI agents might have conducted an investi- gation for non-law enforcement reasons strains both the competence of courts and the ability of agency personnel to respond promptly to FOIA requests based largely on, a review of the documents them- selves. "[T]he standard virtues of bright-line rules are thus present, and the difficulties attendant to ad hoc adjudication may be avoided." Reporters Com- mittee, 489 U.S. at 780. 2. ___________________(footnotes) 2 None of the courts of appeals that have adopted a cate- gorical rule has addressed the situation in which there is an express statement by an authoritative governmental official ---------------------------------------- Page Break ---------------------------------------- 22 A categorical approach to the threshold issue does not result in unfairness to those seeking the dis- closure of information under the FOIA, because the conclusion that records have been compiled for law enforcement purposes does not by itself justify the withholding of any records. The government must additionally show that production of the information would lead to one of the specified statutory harms, such as an unwarranted invasion of personal privacy or the disclosure of a confidential source. As the Sixth Circuit has explained "Congress considered the enumeration of these specific bases for with- holding material [under Exemption 7] to be the principal means for narrowing the law enforcement exemption. me concern about overbroad withholding should therefore be addressed by proper scrutiny of the claimed exemptions themselves and not by use of a blunt instrument at the threshold which would harm the other policies Congress deemed important." Jones, 41 F.3d at 246. ___________________(footnotes) that the investigation to which the requested records pertain was conducted, solely for a non-law enforcement purpose. Although that question likewise is not presented in this case, we assume that Exemption 7 would not be applied in such a situation to protect information from public disclosure. In those circumstances, the danger of judicial second-guessing or speculation regarding the true purposes of the investigation would not be present, Cf. Shaw v. FBI, 749 F.2d at 64 (addressing existence of law enforcement purposes on the basis of sworn testimony by FBI Director stating reason for FBI investigation of assassination of President Kennedy, but holding that Director's stated reason, assisting. state officials in investigation of state crime, fell within law enforcement pur- poses of FBI). The courts below" did not rely on such an authoritative agency representation in this case. ---------------------------------------- Page Break ---------------------------------------- 23 Nor does. a categorical approach to the threshold question impair the FOIA'S purpose of exposing gov- ernment action to public scrutiny. See Department of Air Force v. Rose, 425 U.S. 352, 361 (1976). Even when the names of confidential sources and other sensitive information are withheld under Exemption 7's six specific categories, information shedding light on the nature of the government's conduct is ordinar- ily released. See Irons, 596 F.2d at 475. This case is illustrative. Although the FBI withheld information that would intrude on personal privacy or disclose the identity of a confidential source, it released thousands of pages of documents bearing on its investigative activities at UC Berkeley. e. The question presented here is a recurring one and its resolution is of substantial importance. The FBI receives a large number of requests for informa- tion every year. For example, in 1994, it received almost 10,000 new requests for information. In the requests processed in that year, the FBI asserted Exemption 7(C) in order to protect personal privacy in response to more than 1000 requests for infor- mation. It asserted Exemption 7(D) to protect confi- dential sources in response to 600 such requests. The rule adopted by the Ninth Circuit jeopardizes the FBI's ability to continue to provide that protection. Even more significantly, the court of appeals' deci- sion could have a chilling effect on the FBI's ability to recruit future sources. Confidential sources are indispensable in the FBI's effort to protect public safety and national security. Individuals who other- wise might be receptive to providing vital information to the FBI in espionage, drug trafficking, bombing, organized crime, or terrorist cases must not be deterred from doing so because of a fear that their ---------------------------------------- Page Break ---------------------------------------- 24 identities will later be disclosed in a FOIA action. Because the court of appeals' decision threatens to create just such a deterrent effect, review by this Court is warranted. 2. a. Certiorari should also be granted to resolve a conflict in the circuits on the standard hat should be applied by a court of appeals in reviewing a district court's determinations regarding issues of fact at the summary judgment stage of a FOIA case. Instead of determining, whether there is an issue of material fact to be resolved, the Ninth Circuit and three other circuits inquire whether an adequate factual basis supports the district court's rulings, and, if so, whether the court's determination is clearly erron- eous. App., infra, 4a; Manna v. United States Dep `t of Justice, 51 F.3d 1158, 1162-1168 (3d Cir. 1995), cert. denied, No. 95-464 (Nov. 13, 1995); Calhoun v. Lyng, 864 F.2d 34,26 (5th Cir. 1988); Becker v. IRS, 34 F.3d 398, 402 (7th Cir. 1994); Church of-Scientology v. United State Dep't of Army, 611 F.2d at 742-743; Miscavige v. IRS, 2 F.3d 366,367 (llth Cir. 1993). By contrast, four other circuits have heId that district court rulings on factual issues at the summary judgment stage in FOIA cases, like such rulings in other cases, should be reviewed de novo to determine whether there is a genuine issue of material fact. Hale v. United States Dep't of Justice, 973 F.2d 894, 897 (lOth Cir. 1992), vacated on other grounds and remanded, 113 S. Ct. 30.29, modified on remand, 2 F.3d 1055 (lOth Cir. 1993) (overruling in part on other grounds Hale, 973 F.2d at 899-900); Gallant v. NLRB, 26 F.3d 168, 171 (D.C. Cir. 1994); Petroleum Info. Corp. v. United States Dep't of Interior, 976 F.2d 1429, 1433 & n.3 (D.C. Cir. 1992); Church of Scien - tology, Int'1 v. United States Dep't of Justice, 30 F.3d ---------------------------------------- Page Break ---------------------------------------- 25 224, 228 (lst Cir. 1994); Jones, 41 F.3d at 242 (6th Cir.). One circuit has adopted a hybrid of those two standards. Ethyl Corp. v. EPA, 25 F.3d 1241, 1246 (4th Cir. 1994); Bowers v. United States Dep't of Justice, 930 F.2d 350,353 (4th Cir.), cert. denied, 502 U.S. 911 (1991). Because that conflict in the circuits implicates the scope of review in all FOIA cases, it warrants this Court's resolution. b. The Ninth Circuit's holding that district court rulings on summary judgment in FOIA cases are subject to clearly erroneous review cannot be recon- ciled with Federal Rule of Civil Procedure 56. Under the terms of Rule 56, a district court has no authority to resolve disputed factual issues at that stage. Summary judgment may be entered only when the records shows 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." Fed. R. Civ. P. 56(c). As this Court has explained, "[t]he inquiry performed is the threshold inquiry of determining whether there is the need for a trial-whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242,250 (1986). Summary judgment is warranted only when the evidence "is so one-sided that one party must prevail as a matter of law." Id. at 251-252. Because a district court has no authority to resolve disputed factual issues under Rule 56 and the sole question resolved is a legal one, the standard of re- view on appeal is de novo. The relevant inquiry is the same as the one undertaken by the district court- whether it appears that there is no genuine issue as to any material fact and that the moving party is ---------------------------------------- Page Break ---------------------------------------- 26 entitled to judgment as a matter of law. Eastman Kodak Co. v. Image Technical Services, Inc., 504 U.S. 451,465 n.10 (.1992) ("[O]n summary judgment we may examine the record de novo without relying upon the lower courts' understanding."); Adickes v. S.H. Kress & Co., 398 U.S. 144, 153. (1970) ("Our own scrutiny of the [record] convinces us that summary judgment was improper here, for we think respondent failed to carry" its burden of showing the absence of any gen- uine issue of fact."); United States v. Diebold, Inc., 369 U.S. 654; 655 (1962) (per curiam) (because "[a] study of the record * * * leads us to believe that inferences contrary to those drawn by the trial court might be permissible[,] * * * it was improper for the District Court to decide the [case] on a motion for summary judgment"); see also 6 J. Moore, Moore's Federal Practice "Par" 56.27[1], at 850-852 (2d ed. 1995) (summary judgment findings are subject to de novo review to determine whether there is a material issue of fact); 10 C. Wright, A. Miller, & M.K. Kane, Fed- eral Practice and Procedure 2716, at 643 (2d ed. 1983) (same): The clearly erroneous rule, which re- quires an appellate court to defer to a district court's choice between two permissible views of the evidence, Anderson v. City of Bessemer City, 470 U.S. 564, 573- 575 (1985), cannot apply when the district court had no authority to make such a choice in the first place. The Ninth Circuit expressed no disagreement with those principles as a general matter. Instead, it apparently believed that it had authority to create an exception to those principles for FOIA cases. App. infra, 4a. Neither Rule 56 nor the Federal Rules of Appellate procedure contain an exception for FOIA cases, and federal courts have no authority to create such exceptions for specific categories of cases. Com- ---------------------------------------- Page Break ---------------------------------------- 27 pare Leatherman v. Tarrant County Narcotics Intel- ligence & Coordination Unit, 113 S. Ct. 1160, 1163 (1993). c. The application of the clearly erroneous stan- dard of review played a significant role in the Ninth Circuit's decision. See App., infra, 4a. For example, the court expressly invoked that standard in deferring to the district court's determinations that the government's asserted purposes for compiling the Higgins files and the post-January 19, 1965, FSM files were pretextual. See App., infra, 8a (referring to the district court's "finding" with respect to the Higgins files); id. at 13a-14a (deferring to what the district court "found" with respect to the FSM documents). Had the court of appeals viewed the relevant question to be whether there was a genuine issue of material fact on the pretext issue, it would have been compelled to reverse the district court's grant of summary judgment. The government submitted sworn decla- rations from FBI agents explaining the legitimate purposes of the FSM and Higgins investigations. See pages 3-6, supra. At the very least, those submis- sions created a genuine issue of material fact on the issue of pretext, precluding an award of summary judgment against the government. 3. Only by applying a clearly erroneous standard of review, rather than the ordinary summary judgment standard, was the court of appeals able to avoid the conclusion that the district court's grant of summary judgment in respondent's favor was in error. ___________________(footnotes) 3 The discussion in the text of course assumes, contrary to our submission in point 1, that such a factual inquiry is proper on the threshold question of "law enforcement purposes" under Exemption 7. ---------------------------------------- Page Break ---------------------------------------- 28 CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted, DREW S. DAYS, III Solicitor General FRANK W. HUNGER Assistant Attorney General EDWIN S. KNEEDLER Deputy Solicitor General IRVING L. GORNSTEIN Assistant to the Solicitor General LEONARD SCHAITMAN FREDDI LIPSTEIN ROBERT M. LOEB Attorneys November 1995 ---------------------------------------- Page Break ---------------------------------------- APPENDIX A UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 91-16538 SETH ROSENFELD, PLAINTIFF-APPELLEE v. UNITED STATES DEPARTMENT OF JUSTICE; THE FEDERAL BUREAU OF INVESTIGATION, DEFENDANTS-APPELLANTS Argued and Submitted Sept. 16,1992. Submission Vacated May 7, 1993. Resubmitted Jan. 24, 1995. Decided June 12, 1995. BEFORE: SCHROEDER, NORRIS, and BRUNETTI, Circuit Judges. BRUNETTI, Circuit Judge: I. Background and Proceedings Below From late 1981 through early 1984, Rosenfeld filed requests with the Federal Bureau of Investigation (FBI) under FOIA, 5 U.S.C.552.1. Rosenfeld sought release of documents relating to the FBI's investiga- tion of people and organizations involved in the Free Speech Movement (FSM). The FSM organized demonstrations at the University of California, ___________________(footnotes) 1. Hereinafter, references to "section" refer to sections in title 5 of the United States Code. (1a) ---------------------------------------- Page Break ---------------------------------------- 2a Berkeley (UC Berkeley), which protested campus re- gulations restricting political activities on campus grounds. The FBI located 8,432 documents respon- sive to the requests. It released. 1,795 pages in their entirety, released 4,985 in redacted form, and withheld 1,652 pages in their entirety. The parties litigated over documents in nine FBI files, but the government only appeals from rulings on documents in three, the FSM, Higgins, and Kerr files. As part III describes in greater detail, the gov- ernment began investigations of the FSM out of a concern that its leaders were members of communist or subversive organizations. Clark Kerr was Chan- cellor of the UC Berkeley campus from 1952 to 1958 and President of the UC system from 1958 to 1967. Marguerite Higgins wrote about the FSM as a journalist. Rosenfeld filed suit in the District Court for the Northern District of California on February 22, 1985, seeking release of the withheld information, The district court referred the matter to a magistrate. The parties agreed to focus their dispute on a re- presentative sample of documents, using the court's ruling on these documents as guidance in processing and releasing the approximately 6,600 disputed documents. The FBI filed a Vaughn index 2. on a representative sample of 200 disputed documents picked by both parties and an additional index for 250 additional documents chosen by Rosenfeld. Both parties also filed declarations (some in camera ) in support of their arguments. The magistrate con- ___________________(footnotes) 2. See Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973). ---------------------------------------- Page Break ---------------------------------------- 3a ducted in camera review of the full texts of the indexed documents and 36 additional pages requested by the FBI. On February 3, 1988, the magistrate filed her opinion and recommendations. On March 29, 1991, the district court issued its opinion based in part on the magistrate's recom- mendation and its own independent review of the record. 761 F. Supp. 1440 (N.D. Cal. 1991). The court made two general findings relevant to this appeal. First, the court held that no document in the FSM file generated after January 19, 1965 qualified for any exemption 7 withholding requests because none of these documents were compiled with a law enforce- ment purpose. Id. at 1448. Second, the court found that the documents in the Kerr file also were not filed for a law enforcement purpose. Id. at 1449. As to the remaining exemptions in these and other files, the court set out its specific findings in the appendix to its opinion, Id. at 1450-63. The district court ordered the FBI to reprocess and release the remaining documents in accordance with its opinion. The court also ordered that any requested documents not yet indexed by the government be indexed and submitted to the court. The government moved for reconsideration of this judgment. Two of the government's reasons for recon- sideration are relevant to this appeal. The govern- ment argued that certain documents filed in the FSM file had been cross-filed into that file from other FBI investigatory files, and were exempt for a law en- forcement purpose not connected to the FSM investigation. The government also asked the dis- trict court to reconsider some of its findings in light ---------------------------------------- Page Break ---------------------------------------- 4a of the Supreme Court's decision in United States Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749,109 S. Ct. 1468,103 L.Ed.2d 774 (1989). On September 23, 1991, the district court denied the government's motion for reconsideration. The district court had subject matter jurisdiction of this case under 28 U.S.C. 1331. The government filed a timely notice of appeal of the order denying reconsideration on September 27, 1991. 3. We have jurisdiction under 28 U.S.C. 1291. II. Standard of Review We review the legal conclusions in the district court's grant of summary judgment de novo. In this circuit, we apply a special standard to review factual issues arising in an appeal from a grant of summary judgment in a FOIA case. Instead of determining whether a genuine issue of material fact exists, we employ the following two-step standard. We inquire whether an adequate factual basis supports the district court's ruling. If such a basis exists, we overturn the ruling only if it is clearly erroneous. Painting Indus. Market Recovery Fund v. Dep't of Air Force, 26 F.3d 1479,1482 (9th Cir. 1994). III. Exemption 1: Information Classified in the Interest of National Security The district court denied the government's re- quests to withhold material from FSM Dots. 51 and 495, Higgins Doc. 22, and Kerr Doe. 244 on exemption ___________________(footnotes) 3 The version of Federal Rule of Appellate Procedure 4 in effect in 1991 only allowed a party to file a notice of appeal after the district court had disposed of all pending post- judgment motions. ---------------------------------------- Page Break ---------------------------------------- 5a 1 grounds. 4. 761 F. Supp. at 1451, 1454, 1456-57, 1461. The government appeals from these denials. The government bore the burden to sustain each of its exemption 1 claims, To carry this burden, the gov- ernment needed to "provide the court and [Rosenfeld] with information sufficient to determine whether the source was truly a confidential one and why dis- closure of the withheld information would lead to exposure of the source." Wiener v. FBI, 943 F.2d 972, 980 (9th Cir. 1991). The government needed to "describe [the] particular withheld document, identify the kind of information found in that document that would expose the confidential sources, or describe the injury to national security that would follow from the disclosure of the confidential source of the particular document." Id. at 981. It would not have been enough to rely "on general assertions that disclosure of certain categories of facts may result in disclosure of the source and disclosure of the source may lead to a variety of consequences detrimental to national security." Id. Neither the government's appeal briefs nor its withholding requests demonstrate with any parti- cularity why portions of FSM Dec. 51, Higgins Dec. 22, or Kerr. Doc 244 should be exempted from the dis- ___________________(footnotes) 4 Exemption 1 allows the government to withhold "matters that are . . . specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and . . . are in fact properly classified pursuant to such an Executive order." 5 U.S.C. 552(b)(l). Hereinafter, all "exemption" references refer to FOIA exemptions under Section 552(b). ---------------------------------------- Page Break ---------------------------------------- 6a closure order. The district court correctly concluded that the government did not carry its burden as to these withholding requests. The government asks us to reverse the district court for not having afforded the government's classification decisions substantial weight. See id., at 980. This contention does not per- suade us because the government failed to make an initial showing which would justify deference by the district court. See id. Having reviewed the government's request to withhold information from FSM Dec. 495, we are satisfied that the government carried its burden. The government showed with particularity how disclosure might reveal the identity of an intelligence source. The district court sustained the government's re- quest in part by allowing the government to delete information identifying the informant, but ruled that the document, edited accordingly, would not reveal the informant's identity. 761 F. Supp. at 1454. We are satisfied that the district court gave the govern- ment's request substantial weight, and find that the district court did not clearly err in finding that FSM Doc. 495 could' be disclosed in part while still accom- modating the government's classification interest. IV. Exemption 7: Documents Ordered Dis- closed As Having No Law Enforcement Purpose A. The Rational Nexus Test The remaining document disclosures all raise issues about 5 U.S.C. 552(b)(7). This section in- cludes six different exemptions, all of which share the threshold requirement that the withheld record be ---------------------------------------- Page Break ---------------------------------------- 7a "compiled for law enforcement purposes." The dis- trict court denied some withholding requests because the documents were not compiled for any law enforce- ment purpose, and others because, although the documents met this threshold requirement, they did not satisfy the requirements of any of the particular exemptions. This part addresses rulings that documents had no law enforcement purpose. Parts IV, V, and VI consider exemption 7(C), 7(D), and 7(E) issues, respectively. The government always bears the burden to show that a given document is covered by an exemption and should be withheld. 5 U.S.C. 552(a)(4)(B). However, in this case, the government's burden for satisfying the threshold requirement of exemption 7 is easier to satisfy than the burden for other requirements. The releasing agency in this case, the Federal Bureau of Investigation, has a clear law enforcement mandate. Binion v. Department of Justice, 695 F.2d 1189, 1194 (9th Cir. 1983). Because of this mandate, the govern- ment "need only establish a `rational nexus' between enforcement of a federal law and the document for which [a law enforcement] exemption is claimed." Church of Scientology v. Department of the Army, 611 F.2d 738,748 (9th Cir. 1979). The rational nexus test requires courts to accord a degree of deference to a law enforcement agency's decisions to investigate. The court need not accept the government's claim that a previous investigation had a law enforcement purpose if the asserted pur- pose is "pretextual or wholly unbelievable." Pratt v. ---------------------------------------- Page Break ---------------------------------------- 8a Webster, 673 F.2d 408, 421 (D.C. Cir. 1982). 5. How- ever, in other circumstances, the court should not "second-guess a law enforcement agency's decision to investigate if there is a plausible basis for the decision." Id., cited in Wilkinson v. FBI, 633 F. Supp. 336,343 (C.D. Cal. 1986). B. Marguerite Higgins The government appeals from the district court's ruling that "[t]here is nothing in the [Marguerite] Higgins documents that indicates any legitimate law enforcement purpose within the purview of the statutes and the case law." 761 F. Supp. at 1449. The government presented declarations below that the FBI investigated Higgins as a security precaution before she married a chief of intelligence for a major theater of military command. While this evidence would demonstrate a plausible law enforcement pur- pose, there was also evidence that the FBI did not investigate her until four years after her marriage, contemporaneously with a tour of Russia by her. This evidence suggested that the government's pur- pose was a pretext to investigate her for her activities in the Soviet Union, and the district court did not clearly err in finding that the asserted purpose was in fact pretextual. ___________________(footnotes) 5 The District of Columbia Circuits test for a law enforce- ment agency's showing of law enforcement purpose resembles ours closely. If the agency's investigatory activities that give rise to the documents at issue relate to federal law enforcement or national security, "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." Pratt, 673 F.2d at 420-21. ---------------------------------------- Page Break ---------------------------------------- 9a C. Clark Kerr The government also appeals from the district court's conclusion that "[t]he Clark Kerr documents as a whole are not entitled to a (b)(7) exemption since it is clear that they do not relate to any investigation performed in connection with a legitimate law en- forcement purpose." 761 F. Supp. at 1449. We agree with the district court's conclusion except as to two documents in the Kerr file. The government argued for withholding Kerr files because they were compiled to complete four per- sonnel investigations. The FBI undertook a 1947 in- vestigation on behalf of the Atomic Energy Com- mission (AEC), which was considering Kerr for an appointment as a labor advisor. It performed a 1953 investigation on behalf of the AEC again, because Kerr, as Chancellor of the University of California, had access to classified matters from UC nuclear energy laboratories. (Rosenfeld sought access to the report of this investigation, labeled Kerr Doc. 1 in the district court's index.) The FBI completed a 1958 investigation on behalf of the White House, which was considering Kerr for an appointment to the Inter- national Development Advisory Board. Last, it per- formed a 1964 investigation on behalf of the White House, which was considering him for an appointment to the Board of the Communications Satellite Cor- poration. (Rosenfeld also sought access to this docu- ment, labeled Kerr Dec. 21 in the district court's index.) We have held that FBI pardon applicant investiga- tions satisfy the rational nexus test. Binion, 695 ---------------------------------------- Page Break ---------------------------------------- 10a F.2d at 1194. We think that FBI government appointment investigations also satisfy the rational nexus test. As a result, the government has satisfied its burden of showing that these four records were compiled with a rational nexus to a law enforcement purpose. How-ever, the government's evidence does not preclude the possibility that the asserted purpose for which these documents were compiled was pretextual. Nor did it compel the district court or compel us now to find that the rest of the documents in the Kerr file were compiled with the same purpose. Rosenfeld introduced evidence showing that the FBI waged a concerted effort in the late 1950s and 1960s to have Kerr fired from the presidency of UC Berkeley. The earliest evidence of this effort is Dec. 2, a memorandum dated two months before the 1958 investigation. The memo notes that Kerr was formally inaugurated as President of UC Berkeley, and offers investigative information about Kerr "merely for [the FBI's] information and in the event that the Bureau may receive some inquiry con- cerning Dr. Kerr, who at best is a highly contro- versial figure in California education." We will not recite all of the documentation for this campaign to fire Kerr, but we will describe some of the highlights. FBI agents counted the number of Regents on Berkeley's Board of Regents who would support or oppose an attempt to have Kerr removed as President. One agent made a recommendation to the file in 1965 that Kerr be fired for his "lack of administration" during student protests, Last, then FBI-Director J. Edgar Hoover" made a notation on the margin of one report that he knew "Kerr is no good." ---------------------------------------- Page Break ---------------------------------------- lla These documents all support a conclusion that these reports were compiled with no rational nexus to a plausible law enforcement purpose-that any asserted purpose for compiling these documents was pretextual. Dec. 2 suggests that the FBI knew no investigation was pending and that the FBI had no reason to investigate him. The later documents all strongly support the suspicion that the FBI was investigating Kerr to have him removed from the UC administration, because FBI officials disagreed with his politics or his handling of administrative matters. Conspicuously absent from these documents is any connection to any possible criminal liability by Kerr. While the statements of dislike for Kerr in the record are egregious, the other documents constitute "pre- cisely the sort of generalized monitoring and information-gathering that are not related to the Bureau's law enforcement duties." Lamont v. Department of Justice, 475 F. Supp. 761, 775 (S.D.N.Y. 1979). We also agree with the district court that these documents support a presumption that any other documents compiled after the campaign against Kerr began were compiled with no rational nexus to an asserted law enforcement purpose. The only documents in the Kerr file for which such a presumption might be rebutted are the reports of the personnel investigations. Rosenfeld seeks disclo- sure of two of the four personnel investigations, the 1953 report (Doe. 1) and the 1964 report (Dec. 21). Since the earliest evidence of the campaign to have Kerr fired is in 1958, there is no factual basis to conclude that the campaign extended back to 1953. Thus, no evidence in the record rebuts the govern- ment's asserted law enforcement purpose, to conduct ---------------------------------------- Page Break ---------------------------------------- 12a a background check requested by another agency. We therefore reverse and remand for a determination whether any of the specific exemption 7 exemptions apply to Kerr Doc. 1. The 1964 report, Dec. 21, was compiled after the campaign against Kerr started. The district court's opinion gives no indication whether the court considered that the document might have been com- piled for a legitimate purpose, a personnel report, even if contemporaneous documents were compiled for a different purpose. See id. at 1449, 1457. We remand for a determination whether other evidence renders unbelievable the government's assertion that Dec. 21 was compiled to complete a personnel background check. The government has presented no other evidence rebutting the evidence that documents in the Kerr file compiled after 1958 were compiled with an illegitimate law enforcement purpose, to have Kerr fired from his position in the UC system. We affirm the district court's rulings as to the rest of the Kerr file. D. The Free Speech Movement The government sought to withhold many docu- ments in the FSM file under the various exemption `i exemptions. The district court ruled that the govern- ment showed a law enforcement purpose covering FSM documents dated before January 19, 1965. 761 F. Supp. at 1444-45. However, it concluded that the investigation's rational nexus to a law enforcement purpose expired as of that date, and thus declined to allow withholding of documents after that date on ---------------------------------------- Page Break ---------------------------------------- 13a exemption 7 grounds. Id. at 1448. The government appeals from the portion of the district court's opinion ordering it to disclose all post-cutoff FSM documents not ordered withheld under an exemption other than exemption 7. The government asserted two purposes that could have supported the conclusion that all the records in the FSM file, pre- and post-cutoff, were compiled with a law enforcement purpose. The district court found that the FBI investigated whether and to what extent the FSM was influenced by subversive organizations or would be likely to lead to civil disorder. Id. at 1445. The FBI corroborated these two purposes by identify- ing two individuals in the FSM leadership with com- munist leanings and indicating the potential for disorder in the demonstrations and civil disobedience occurring at UC Berkeley in 1964. Id. The district court concluded that the records put in the FSM file from October 1964 to January 1965 were compiled with a law enforcement purpose. However, the court also concluded that this purpose "disinte- grated)" that the FBI invoked it merely as a pretext to pursue routine monitoring, with respect to docu- ments put in the file after January 19, 1965. See id. at 1445, 1448. Neither party contests the court's finding of a valid law enforcement purpose from October 1964 to January 1965. We affirm the district court's ruling because the court did not clearly err in determining that any post-cutoff law enforcement purpose was invoked only as a pretext to monitor the subjects of the FSM investigation. The record contains a January 28, ---------------------------------------- Page Break ---------------------------------------- 14a 1965, memorandum showing that the FBI gave in- formation about some of the investigation subjects to a member of the UC Board of Regents at the request of then-CIA Director John McCone. A later memo indicated that the Regent would use the information to "curtail, harass and at times eliminate Com- munists and ultra liberal members on the faculty." These documents strongly suggest that the January 28 memo was compiled to harass political opponents of the FBI's allies among the Regents, not to investi- gate subversion and civil disorder. They also suggest that by that date the FBI may no longer have had a legitimate purpose to continue its investigation of the FSM subjects. The FSM file also contains many reports compiled after the cutoff date about the activities of Mario Savio, an FSM leader. Read together, the documents admit that the FBI found he had negligible contacts with communists, and suggest the FBI was interested in investigating him for his "contemptuous attitude" instead of his possible sub- versiveness. The district court found that a January 19, 1965, memorandum, which reported that the FSM and the UC demonstrations were not controlled by com- munists, was the last document in the FSM file to be compiled with a law enforcement purpose. Based on our review of the documents that followed this memorandum, we cannot say that the district court clearly erred in determining that this was the last document compiled with a rational nexus to a legitimate law enforcement purpose. We affirm the district court's exemption 7 ruling as to documents compiled directly into the FSM file. ---------------------------------------- Page Break ---------------------------------------- 15a E. Channelized Documents The last set of documents subject to an exemption 7 challenge are documents cross-filed (channelized) into the FSM file from other FBI investigation files. The government argues, citing FBI v. Abramson, 456 U.S. 615,626, 102 S. Ct. 2054, 2061-62, 72 L.Ed.2d 376 (1982), that because these documents were exempt in the files in which they were originally compiled, the district court should not have ordered their dis- closure even if the court ordered the disclosure of the file in which they were channelized. The government did not raise this argument to the district court in its summary judgment motion it first raised the argument in support of recon- sideration of the summary judgment ruling. The district court refused to reconsider because the government failed to show why it could not have presented the argument to the court before summary judgment. The district court did not abuse its dis- cretion in declining to consider an argument raised for the first time on reconsideration without a good excuse. Schanen v. Department of Justice, 762 F.2d 805, 807, 808 (9th Cir. 1985), modified on other grounds, 798 F.2d 348 (9th Cir. 1985). We thus affirm the district court's rulings on the channelized docu- ments. V. Exemption 7(C): Information Invading Privacy The district court ordered the disclosure of some pre-cutoff FSM documents notwithstanding govern- ---------------------------------------- Page Break ---------------------------------------- 16a ment requests to exempt them under exemption 7(C). 6. See 761 F. Supp. at 1450-54. After the district court issued its opinion, the government moved for the court to reconsider its 7(C) rulings in light of De- partment of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 109 S.Ct. 1468,103 L.Ed.2d 774 (1989), which was decided after the parties submitted their papers on the cross-motions for summary judgment. The government appeals from the district court's denial of the reconsideration motion. It also asks us to reverse portions of the district court's ruling in light of Department of State v. Ray, 502 U.S. 164,112 S.Ct. 541, 116 L.Ed.2d 526 (1991), which was decided on or after the district court's order denying recon- sideration. Instead of appealing from orders to dis- close individual documents, the government argues that the district court applied the law erroneously in three respect., and that these errors require us to reverse the disclosure orders for many documents. Before we consider these alleged errors, which all go to the privacy interests at stake for individual docu- ments, we review the public interest at stake for all the documents. Exemption 7(C) requires us to balance the privacy interests of the individuals protected by the non- disclosure against the public interest at stake. Reporters Comm., 489 U.S. at 762, 109 S.Ct. at 1476. The sole cognizable public interest for FOIA is the ___________________(footnotes) 6 Section 552(b)(7)(C) allows the government to withhold" documents which are compiled for a law enforcement purpose and which "constitute an unwarranted invasion of privacy." ---------------------------------------- Page Break ---------------------------------------- 17a interest "to open agency action to the light of public scrutiny," to inform the citizenry "about what their government is up to." Id. at 772,773, 109 S.Ct. at 1481, 1481-82 (internal quotations omitted). We agree with the district court that this interest exists here. It certainly serves FOIA'S purpose to disclose publicly records that document whether the FBI abused its law enforcement mandate by over- zealously investigating a political protest movement to which some members of the government then may have objected. The government argues that the issue here is the extent of the public interest in knowing the identities of the subjects of these documents, not the interest in the other contents of the documents. The govern- ment's point comports with Supreme Court prece- dent. In Ray, 7. the Court analyzed the interest in public access to interviews the Department of State conducted with repatriated Haitian refugees. The Department of State conducted these interviews to determine whether Haiti's government was retaliat- ing against the returnees for having attempted to ___________________(footnotes) 7 The Court applied exemption 6, not exemption 7(C), in Ray. Section 552(b)(6) allows the government to withhold "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of per- sonal privacy." Exemptions 6 and 7(C) both involve balancing public interests against privacy interests, but exemption 6 with- holding requests require a showing of a more intrusive invasion of privacy. While exemption 6 cases have limited relevance to exemption 7(C) cases with respect to balancing, they are certainly relevant in describing how to define the interests at stake. ---------------------------------------- Page Break ---------------------------------------- 18a leave the country. Ray, 502 U.S. at 167-69, 112 S. Ct. at 544. The Court recognized that the public interest was "whether the State Department ha[d] adequately monitored Haiti's compliance with its promise not to prosecute returnees." Id. at 177-79, 112 S. Ct. at 549. The Court was convinced, however, that this interest could be served without releasing the names of the interviewees. Id.; see also Reporters Comm., 489 U.S. at 773-74, 109 S. Ct. at 1481-82; Department of Air Force v. Rose, 425 U.S. 352, 372,96 S. Ct. 1592,1604,48 L.Ed.2d 11 (1976). We conclude that this precedent is distinguishable because the public interest in this case may not be served without disclosing the names of the investiga- tion subjects. The public interest in this case is knowing whether and to what extent the FBI in- vestigated individuals for participating in political protests, not federal criminal activity. Disclosing the names of the investigation subjects would make it possible to compare the FBI's investigations to a roster of the FSM'S leadership. Therefore, disclosing the names of investigation subjects promotes the public interest, of this FOIA request. In light of this strong public interest, we consider the, government's arguments about the district court's weighing of privacy interests. The govern- ment first asserts that the district court erred in giving minimal weight to the privacy interests of the subjects of its investigations, contrary to Reporters Committee and Ray. We find nothing in the record to suggest that the district court made such an error. None of the court's findings as to the FSM documents denied a 7(C) exemption because the only privacy ---------------------------------------- Page Break ---------------------------------------- 19a interest was the interest of an investigated third party in keeping the investigative report confidential. See 761 F. Supp. at 1450-54. 8. We see no basis here to disturb the district court's rulings. The government also argues that the district court erred by concluding that "the passage of time" dimin- ished investigation subjects' interest in keeping secret the events reported in the investigation. However, having reviewed the specific rulings that the government would have us reverse on this basis, FSM Docs. 42 and 402, we note that this argument incorrectly characterizes the district court's use of the passage of time. In Dec. 42, the court ordered a police officer's name disclosed, but not the police unit where he was stationed, Id. at 1450. The court rea- soned that "[d]ue to the . . . passage of time, it is un- likely that disclosure of the unit would lead to the identity of the officer." Id. In FSM Doc. 402, the ___________________(footnotes) 8 The government offers only one piece of evidence of the district court's alleged error. The government asserts that at the hearing on the motion for reconsideration, the court stated, with reference to Reporters Committee, "I don't very honestly see how that changes things." However, this assertion takes the court's statement out of context. The court was speaking to a request by the government for the court to hear the merits of the motion, notwithstanding a serious factual question about whether the government failed to file and serve the motion in a timely manner. The court's comment about the new Supreme Court decision not "chang[ing] things" speaks to the court's refusal to hear oral argument on the merits of the motion. The court decided on the bench that the new Supreme Court case was not enough reason to grant oral argument when the court normally did not hear argument on reconsideration motions and when there was a possibility that the district court had no jurisdiction to consider the merits. ---------------------------------------- Page Break ---------------------------------------- 20a court ordered the disclosure of a party's name be- cause the name "is only a first name, and a common one at that," and because "[r]elease would not identify the person, especially given the passage of time." Id. at 1453. The district court in each of these cases respected the document subject's privacy by refusing to order the disclosure. of the subject's name. The court ordered the disclosure of information that might in some circumstances lead to the identity of the person. However, the court found in each case as a matter of fact that the information was not likely to identify the party, in part because it would be impracticable to conduct an identity search more than twenty-five years later. The district court accommodated, not disregarded, the subjects' privacy. Last, the government argues that the district court erred by affording less weight to the privacy in- terests of the subjects of some documents, because those subjects. were well-known to have been active in the FSM. The government did not specifically iden- tify for us the documents affected by this alleged error. We presume from our review of the district court's opinion that the government is appealing from the orders to. disclose names in FSM Docs. 42, 342, 352, and 371 on this basis. See 761 F. Supp. at 1450-53. The court overruled the requests to withhold names in these documents because "the individuals in ques- tion engaged in activities which made it very likely that the FBI, would take an investigative interest in them. Confirmation that the FBI did take such an interest adds little or nothing to whatever con- ---------------------------------------- Page Break ---------------------------------------- 21a sequences the already-public knowledge of their ac- tivities may have." Id. at 1450. On this issue, we share the government's concern that the district court's characterization of the sub- jects' privacy interests may be "cramped." Reporters Comm., 489 U.S. at 763, 109 S.Ct. at 1476-77. Dis- closing the names of an investigation subject would not merely confirm that the FBI took an investigative interest in that person. The contents of the investi- gation file might exceed the scope of the FSM investigation. For instance, the file could contain highly personal information, the disclosure of which could prove embarrassing. See Ray, 502 U.S. at 175-77, 112 S. Ct. at 548. Furthermore, the investiga- tive reports could contain information indicating that the subject was involved in criminal activity un- related to the FSM. The subjects' high profiles in the FSM would not lessen their interest in keeping secret this separate information, We have held that it is better to err on the side of subjects' privacy interests even in cases where they may have held themselves out. Cf. Church of Scientology Int'l v. IRS, 995 F.2d 916, 920-21 (9th Cir. 1993) (declining to construe subjects' oral waiver to objection to dis- closure of the information at issue as an actual waiver). We remand the district court's judgment as to FSM Dots. 42, 342, 352, and 371. The district court should determine whether these documents contain informa- tion, relating to individuals whose names have been withheld, that exceeds the scope of FSM criminal investigations. We cannot make this determination because it is factual in nature. If the documents have ---------------------------------------- Page Break ---------------------------------------- 22a no such information, the district court's rulings on them may stand. If the documents do contain infor- mation unrelated to the FSM, the district court should determine how much release of this informa- tion would invade the privacy of individuals whose names have been withheld, and balance this interest against the strong public interest in access to the individuals' identities. We affirm the district court's rulings on exemption 7(C) requests in all other re- spects. VI. Exemption 7(D): Information Disclosing Confidential Informants The Government argues that the court applied incorrect legal standards in evaluating the FBI's claims of exemption from release of information under 5 U.S.C. 552(b)(7)(D). That provision permits the government to withhold records or information compiled for law enforcement purposes, [to the extent those records] 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. The government bears the burden of establishing the applicability of the exemption. Department of Justice v. Landano, - U.S. -, -, 113 S. Ct. 2014, 2019, 124 L.Ed.2d 84 (1993). Under this exemption, a source is "confidential" if it "provided information under an express assurance of confidentiality or in circumstances from which such an assurance could be reasonably inferred." Id. at _, _, 113 S.Ct. at ---------------------------------------- Page Break ---------------------------------------- 23a 2019-2020 (quoting S. Rep. No. 93-1200, at 13 (1974), reprinted in 1974 U.S.C.C.A.N. 6267, 6291). The focus, therefore, is not whether "the requested document is of the type that the agency usually treats as confidential, but whether the particular source spoke with an understanding that the communication would remain confidential." Id. at -, 113 S. Ct. at 2019 (emphasis in original). The Government argued in its original briefs to this court that the district court should have applied a presumption of confidentiality to sources that pro- vided information in the course of the FBI investigations. The Supreme Court has since fore- closed this argument. In Landano, the Court rejected the view held by the D. C., Second, Seventh, Eighth, and Tenth Circuits that a presumption of confidentiality attaches from the mere fact of an FBI investigation. See Dow Jones & Co. v. Dep't of Justice, 917 F.2d 571, 576 (D.C. Cir. 1990); Donovan V. FBI, 806 F.2d 55,61 (2d Cir. 1986); Kimberlin v. Dep`t of Treasury, 774 F.2d 204, 208 (7th Cir. 1985); Parton v. Dep't of Justice, 727 F.2d 774, 776 (8th Cir. 1984); KTVY-TV v. United States, 919 F.2d 1465, 1470 (l0th Cir. 1990). Instead, the Court set forth a framework under which the confidentiality determination turns on the circumstances under which the subject pro- vided the requested information. Landano, - U.S. at -, 113 S. Ct. at 2023. Landano did not affect the application of exemption 7(D) to sources and information covered by an express assurance of confidentiality. We have observed" that such an express promise of confidentiality is "virtu- ally unassailable." Wiener v. FBI, 943 F.2d 972, 986 ---------------------------------------- Page Break ---------------------------------------- 24a (9th Cir. 1991), cert. denied, - U.S. -, 112 S. Ct. 3013, 120 L.Ed.2d 886 (1992). It is also easy to prove "The FBI need only establish the informant was told his name would be held in confidence." Id. The government asserts the district court erred in denying protection to several records over claims of express grants of confidence. It specifically objects to the court's refusal to treat all symbol numbered sources as protected by express grants of con- fidentiality. The government argued below, and again on appeal, that symbol numbered sources receive assurances from the FBI that their relationship with the FBI will not be revealed to the public, and there- fore qualify as a class for exemption 7(D) protection. The district court apparently concluded otherwise. Although the government reargues the point that in fact these sources were granted express assurances of confidence; it has not pointed to anything in the record that indicates persuasively that all of these sources were "told [their] name[s] would be held in confidence." Id. We have no basis upon which to disturb the district court's conclusions. Further, our own review of the individual document rulings indicates that the court observed scrupulously the sanctity of the legitimate claims of express grants of confidence. We discern no error in the court's treat- ment of the express confidence Claims. We now turn to the district court's denial of requests to withhold documents allegedly acquired through implied assurances of confidentiality. The district court rejected the government's argu- ment that FBI sources inherently qualify for the "implied assurance" protection, and conducted a ---------------------------------------- Page Break ---------------------------------------- 25a document-specific and source-specific inquiry. The court's inquiry comported with Landano`s command to analyze documents individually. Landano, - U.S. at -, 113 S. Ct. at 2019. The inquiry also anticipated Landano's command to infer that the informant received an implied assurance of confidentiality only if factors like the nature of the crime being investigated and the source's relationship with the FBI made it reasonable to infer that the informant expected such an assurance. Id. at -, 113 S. Ct. at 2023. We affirm the district court's rulings denying certain documents exempt status under Exemption 7(D). VII. Exemption 7(E): Information Likely to Disclose a Law Enforcement Technique The government appeals from the denial of its sole request under Exemption 7(E), to withhold a portion of FSM Doc. 42. 9. The district court denied the request because the law enforcement technique at issue, a pretext phone call, "would leap to the mind of the most simpleminded investigator." 761 F. Supp. at 1450. The district court's decision is supported by holdings from district courts of the District of Columbia Circuit, that Exemption 7(E) only exempts investigative techniques not generally known to the public. National Sec. Archive v. FBI, 759 F. Supp. 872, 885 (D.D.C. 1991); Albuquerque Publishing Co. v. Department of Justice, 726 F. Supp. 851, 857 (D.D.C. 1989), ___________________(footnotes) 9 Section 552(b)(7)(E) exempts a record from disclosure if it was compiled for law enforcement purposes and would "dis- close investigative techniques and procedures," ---------------------------------------- Page Break ---------------------------------------- 26a We agree with these courts' reasoning, and adopt it as the law of this Circuit. It would not serve the purposes of FOIA to allow the government to with- hold information to keep secret an investigative tech- nique that is routine and generally known. Accord- ingly, the district court did not err in applying a routine-technique exception to Exemption 7(E). We find no error in the court's finding that a pretext phone call constitutes an investigative technique generally known to the public. We are not persuaded by the government's argument that the technique at issue is more precise, namely, the "use of the identity of a particular in- dividual, Mario Savio, as the pretext. This argument proves too much. If we were to follow such reasoning, the government could- withhold information under Exemption 7(E) under any circumstances, no matter how obvious the investigative practice at issue, simply by saying that the "investigative technique" at issue is not the practice but the application of the practice to the particular facts underlying that FOIA request. VIII. Conclusion We affirm the district court's judgment in all respects except the following. We reverse the ruling on Dec. 1 in the Kerr file, and remand the ruling on Doc. 21 in this file for further consideration in light of Section III.C of this opinion. We remand the rulings on FSM Dots. 42, 342, 352, and 371 for pro- ceedings consistent with part IV of this opinion. AFFIRM-ED in part, REVERSED in part, and REMANDED. ---------------------------------------- Page Break ---------------------------------------- 27a APPENDIX B UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA NOS. C-85-1709 MHP, C-85-2247 MHP. SETH ROSENFELD, PLAINTIFF v. UNITED STATES DEPARTMENT OF JUSTICE, ET AL., DEFENDANTS MAR. 29,1991 OPINION PATEL, District Judge. Plaintiff filed this action under the Freedom of Information Act (FOIA), 5 U.S.C. 552, to obtain documents from the files of the Federal Bureau of Investigation ("FBI"), with processing fees waived under 5 U.S.C. 552(a)(4)(A). The matter subse- quently was referred to a federal magistrate for evaluation of defendants' claims that certain docu- ments were exempt from disclosure under FOIA. The case is now before this court to resolve objections by both plaintiff and defendants to the magistrate's report. Having reviewed the magistrate's report and considered the memoranda of the parties, for the following reasons, the court accepts, with minor modifications, the magistrate's rulings on individual ---------------------------------------- Page Break ---------------------------------------- 28a documents; finds that documents in the Free Speech Movement file generated prior to January 19, 1965 satisfy the Exemption (b)(7) threshold showing of law enforcement purpose; finds that documents in the Free Speech Movement file generated January 19, 1965 and after do not meet the Exemption (b)(7) threshold and should be released in their entirety unless they qualify under a different exemption; and adopts the schedule for processing and release of documents outlined below. BACKGROUND Plaintiff Seth Rosenfeld is a journalist and author currently employed by the San Francisco Examine. His areas of specialty are government policy and constitutional rights of individuals. While at the Examiner and earlier, as student journalist for the Daily Californian at the University of California, plaintiff wrote a number of articles focusing on the FBI's investigation, surveillance and infiltration of student political groups in the 1960s, including the Free Speech Movement ("FSM") and the anti-war movement. In 1982, plaintiff published a five-part series in the Daily Californian entitled "The Berkeley Files: 17 Years of FBI Surveillance in Berkeley." The series won several national journal- ism awards and was widely reprinted and reported. Plaintiff is currently gathering materials for a book on the FBI's role in and impact on the political climate of the University of California at Berkeley ("UCB") and the Berkeley community. Beginning in 1981, plaintiff made a series of requests under the Freedom of Information Act for the release of docu- ments from FBI files. When the FBI failed to release the requested documents, and after exhausting his ---------------------------------------- Page Break ---------------------------------------- 29a administrative remedies, plaintiff filed two suits under the FOIA's judicial review provision, 5 U.S.C. 552(a)(4)(B). Through action number C-85-2247 MHP, plaintiff sought release of eight categories of documents related to his research. He requested FBI documents concerning: 1) Edwin W. Pauley, a former Regent of the University of California, well-known for his opposition to student protesters during the 1960s; 2) Clark Kerr, Chancellor of the Berkeley campus from 1952 to 1958 and president of the University of California system from 1958 to 1967; 3) the Free Speech Movement, a student protest group which existed during 1964 and 1965 at Berkeley and other U.C. campuses; 4) The Daily Californian, a U.C. Berkeley student newspaper which reported exten- sively on the Free Speech Movement, the anti-war movement, and other student activities during the 1960s; 5) Max Scherr, founder, editor and publisher of The Berkeley Barb, an "underground" newspaper which played a key role in the political life of Berkeley and the national student movement; 6) Marguerite Higgins, a Pulitzer Prize-winning journalist who wrote extensively about the student and anti-war movements at the University of California; 7) CACTUS, an FBI program monitoring the political activities of certain Berkeley residents; and 8) James Rector, who was killed by Berkeley Sheriff's officers during the People's Park protest in May 1969. In action number C-85-1709 MHP, plaintiff sought release of all information contained in file number 105-22479 of the San Francisco field office of the FBI. ---------------------------------------- Page Break ---------------------------------------- 30a The information is related to "special operations" conducted as part of the FBI's Counter-Intelligence Program (COINTELPRO) investigating the activi- ties of political organizations. The court consolidated the two actions. Defendants identified a total of 8,432 pages re- sponsive to plaintiff's request in FBI files. Of those, 1,795 pages were released in their entirety; 4,985 pages were released with redactions; and 1,652 pages were withheld in full. In 1985, the court found, pursuant to the Act, that the information plaintiff received in the. released materials would primarily benefit the general public and accordingly held that plaintiff was entitled to a fee waiver under 5 U.S.C. 552(a)(4)(A). The court therefore ordered that all materials released to plaintiff be provided without duplication charges. Order, C-85-2247 MHP/C-85-1709 MHP, Oct. 29,1985. The remaining dispute centers on whether defendants have properly withheld all or part of the 6,637 pages for which defendants claim statutory exemptions from disclosure. Following the release of materials not claimed to be subject to any of the statutory FOIA exemptions, the court referred the matter to Federal Magistrate Claudia Wilken to determine whether defendants properly applied the FOIA exemptions in withholding the remaining documents. In its Order referring the matter, this court instructed the magistrate: 1. To review in camera two hundred and fifty (250) documents plaintiffs will select per this ---------------------------------------- Page Break ---------------------------------------- 31a order for Vaughn indexing 1. to determine whether the Freedom of Information Act ("FOIA") exceptions that the FBI applies are appropriately taken; 2. To review in camera two hundred (200) docu- ments which will be selected by plaintiffs from the pool of documents the FBI has already Vaughn in- dexed to determine whether the FBI has applied the FOIA exceptions fairly; 3. To review on a random basis such other documents filed by defendant and indexed pur- suant to Vaughn as the Magistrate deems neces- sary to satisfy herself that exceptions have been properly taken; 4. To evaluate whether the Vaughn indexes the FBI has prepared and will prepare as identified in this Order, and, the materials they have released consequent to that indexing, conform to the requirements of Magistrate Wilken's July 25, 1986 order. Order, C-85-2247 MHP/C-85-1709 MHP (Consoli- dated), March 20,1987. ___________________(footnotes) 1 Vaughn indexing is a procedure whereby agencies claim- ing that requested documents are exempt from release under FOIA must itemize and index for the court the documents and portions of documents they seek to withhold, in order for the court to assess the applicability of each claimed exemption. See Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974). The pro- cedure is intended to avoid the necessity of the court's examin- ing each contested document in camera, while nonetheless af- fording the court an opportunity to evaluate defendant's claims of exemption. ---------------------------------------- Page Break ---------------------------------------- 32a On February 3, 1988, the magistrate filed a report of her findings and recommendations. In the report, she concluded that for documents withheld pursuant to 5 U.S.C. 552(b)(7), the question of whether a sufficient threshold showing of law enforcement purpose had been made with respect to the Free Speech Movement investigation was a close one, and she reserved that question for the court. "In addition, in reviewing individual documents, the magistrate found that a substantial number of the exemptions claimed by defendants were not well-taken. She recommended that the court order defendants" to release forthwith the documents which were not legitimately exempt and that defendants be required to reprocess the remaining documents in accordance with her rulings. The magistrate also suggested that plaintiff be given the opportunity to select a further 250 documents for indexing. Both plaintiff and defendants filed objections to the magistrate's report. DISCUSSION I. EXEMPTIONS TO THE FREEDOM 0F IN- FORMATION ACT "Disclosure, not secrecy, is the dominant objective of the Act." Department of the Air Force v. Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 1599,48 L.Ed.2d 11 (1976). In enacting the Freedom of Information Act, 5 U.S.C. 552 ("FOIA"), the goal of Congress was "`to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny.'" Id. (quoting Rose v. Department of the Air Force, 495 F.2d 261, 263 (2d Cir. 1974)). Accordingly, the basic policy embodied in FOIA is that agency documents are ---------------------------------------- Page Break ---------------------------------------- 33a subject to disclosure unless they fall into one of the nine exemptions enumerated in the statute. See 5 U.S.C. 552(b). The exemptions are to be construed narrowly, with the burden on the government to justify exemption. John Doe Agency v. John Doe corp., 493 U.S. 146,110 S. Ct. 471,475, 107 L.Ed.2d 462 (1989) (citations omitted); Church of Scientology of California v. United States Department of the Army, 611 F.2d 738,742 (9th Cir.1980). Exemption (b)(7) ("Exemption 7" or "(b)(7)") of the FOIA shields from disclosure "records or information compiled for law enforcement purposes" if disclosure would, or with respect to some exceptions could reasonably be expected to, result in one or more of six specified harms. 5 U.S.C. 552(b)(7). 2. Information ___________________(footnotes) 2 In total, section 552(b)(7) exempts from disclosure: records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information (A) could reasonably be expected to interfere with enforcement proceedings, (B) would deprive a person of a right to a fair trial or an impartial adjudication, (C) could reasonably be expected to constitute an unwarranted invasion of personal privacy, (D) could reasonably be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source, (E) would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such dis- ---------------------------------------- Page Break ---------------------------------------- 34a may be withheld under Exemption 7, therefore, only if both parts of the standard are met. First, a requested document must constitute a record or contain infor- mation compiled for law enforcement purposes. If it satisfies this threshold, the agency then must demonstrate that release of the material would threaten one or more of the six harms specified. Keys v. United States Dept. of Justice, 830 F.2d 337, 340 (D.C. Cir. 1987). Although many circuits, including the Ninth, ac- cord deference to the judgment of law enforcement agencies such as the FBI in an Exemption 7 threshold determination, Binion v. United States Department of Justice, 695 F.2d 1189, 1193-94 (9th Cir. 1983), the agency must nonetheless establish a "rational nexus)" between its law enforcement duties and the document for which Exemption 7 is claimed. Id (citing Church of Scientology, 611 F.2d at 748). "[T]he FBI must establish that its investigative activities are `realisti- cally based on a legitimate concern that federal laws ___________________(footnotes) closure could reasonably be expected to risk circumvention of the law or (F) could reasonably be expected to endanger the life or physical safety of any individual. The 1986 amendments to the Freedom of Information Act expanded the coverage of the exemptions from "investigatory records compiled for law enforcement purposes" to "records or information compiled for law enforcement purposes." 5 U.S.C. 552(b)(7) (Supp: IV 1986). In addition, the amendments selec- tively changed the requirement that disclosure "would" cause one of the enumerated harms to requiring that disclosure "could reasonably be expected to" cause one of the enumerated harms. 5 U.S.C. 552(b)(7)(A), (C), (D), (E) and (F) (Supp. IV 1986). Because the amendments apply to "any civil action pending on [October 27, 1986]" they govern this action. ---------------------------------------- Page Break ---------------------------------------- 35a have been or may be violated or that national security may be breached.'" Powell v. United States Dep't of Justice, 584 F.Supp. 1508, 1522 (N.D. Cal. 1984) (quoting Pratt v. Webster, 673 F.2d 408, 420-21 (D.C. Cir. 1982)). If an agency "was merely monitoring the subject for purposes unrelated to enforcement of federal law" a threshold showing has not been made. Lamont v. Department of Justice, 475 F.Supp. 761, 773 (S.D.N.Y. 1979); but of Curran v. Department of Justice, 813 F.2d 473, 475 (lst Cir. 1987) (" `investi- gatory records of law enforcement agencies are inherently records compiled for "law enforcement purposes" within the meaning of Exemption 7.'") (quoting Irons v. Bell, 596 F.2d 468, 475 (lst Cir. 1979)). 3. ___________________(footnotes) 3 The court notes that while numerous cases have discussed the issue of whether records compiled for an illegal or im- proper purpose can be exempted from disclosure under Ex- emption 7, cases actually deciding that issue are rare. See, e.g., Federal Bureau of Investigation v. Abramson, 456 U.S. 615, 625, 102 S. Ct. 2054,2061, 72 L.Ed.2d 376 (1982) (information in law enforcement records remains exempt under Exemption 7 when recompiled in another document for non-law enforce- ment purposes); see also Lesar v. United States Dep't of Jus- tice, 636 F.2d 472 (D.C. Cir. 1980) (documents of special task force summarizing FBI surveillance of Dr. Martin Luther King, Jr. were law enforcement records, even if actual surveil- lance records themselves, where surveillance was for no proper law enforcement purpose, would not qualify as law enforce- ment records). ---------------------------------------- Page Break ---------------------------------------- 36a II. Free Speech Movement A. Rational Nexus Plaintiff Seth Rosenfeld contends that the FBI has failed to make a threshold showing that its in- vestigation of the Free Speech Movement and related groups or members was undertaken for a law enforcement purpose. Instead, plaintiff maintains that "the FBI's overriding purpose was to influence social policy and intervene in a controversial political dispute over the handling of the FSM by the UC Administration." Pl. Reply Memorandum re: In Camera Review, August 24, 1987, at 1. In response; defendants have submitted numerous declarations, including one classified declaration and a classified document index, in support of their position that the activities in question were within the scope of the FBI's authority to investigate law enforcement violations. At a hearing before this court in April 1988, defendants stated, in response to questioning by the court, that the Bureau was investigating possible violations of laws prohibiting seditious conspiracy and violence. The FBI's Internal Security file on the FSM was opened in October 1964, following campus demonstra- tions to protest regulations restricting on-campus political activity. Llewellyn Decl. "Par" 131. Its purpose was to ascertain the influence or involvement in FSM of persons associated with subversive groups, defined by the FBI as "groups whose goals are to achieve political or social change through activities that involve force or violence, or who advocate anarchy, or are under the control or direction of hostile foreign ---------------------------------------- Page Break ---------------------------------------- 37a powers." Lieberman Decl. "Par" 7 n.1. The targeted groups included the Communist Party of the United States of America ("CPUSA"), Young Socialist Alli- ance, Progressive Labor Party, Socialist Workers Party, and various CPUSA "front-groups," such as the W.E.B. DuBois Club. LLewellyn Decl. "Par" 131. To satisfy the Exemption 7 threshold, defendants cite the FBI's statutory authority to investigate potential violations of federal law governing espio- nage and related subversive activities, 18 U.S.C. 2383 (Rebellion or insurrection), 18 U.S.C. 2384 (Seditious conspiracy), 18 U.S.C. 2385 (Advocating overthrow of Government), 50 U.S.C. 781-98" (In- ternal Security Act of 1950) and 841-44 (Com- munist Control Act of 1954). They also cite their authority to investigate civil disorders pursuant to various statutes, including 10 U.S.C. 332 and 333 (Insurrection), 18 U.S.C. 231 (Civil disorders), 18 U.S.C. 245(b)(3) (Civil Rights-Federally protected activities) and 18 U.S.C. 2101 (Riots). Id. In addition, defendants seek exemption for a number of documents regarding other groups, including the CPUSA, Socialist Workers Party, Italian-American Cultural Society, and UCB activities other than the FSM that were "channelized" into the FBI-San Fran- cisco file because of references to FSM or related activities. Id. Defendants assert that the FBI investigation was based upon "evidence [that] indicated [the FSM] was heavily influenced, if not at times controlled, by individuals who were members of or affiliated with subversive organizations." Lieberman Decl. "Par" 7. Ref- ---------------------------------------- Page Break ---------------------------------------- 38a erence is made to "prominent figures in the FSM" who were members of CPUSA, the Socialist Workers Part y and other organizations. However, only two individuals are named: Bettina Aptheker, a member of CPUSA and officer of the Berkeley W.E.B. DuBois Club, who is identified as "principal leader" of the FSM; and Art Goldberg, another FSM leader, who is described as a "publicly professed . . . Marxist" but not otherwise alleged to have been a member of or affiliated with any of the enumerated "subversive" organizations. Id. Defendants also cite the need to monitor the FSM because of the potential for civil disorder. They refer to the ongoing public demonstrations and acts of civil disobedience On campus, including the occupation of Sproul Hall at UCB, which resulted in the arrests of approximately 800 demonstrators. Id. . The presence of a law enforcement purpose in the FSM investigation is a close question. Although de- fendants' supporting declarations are woefully short on specific detail and long on conclusory assertions, the court finds sufficient evidence that the investi- gation was opened and initially pursued for the legitimate purpose of ascertaining the role of sub- versive organizations in the FSM, and the potential for civil disorder in connection with the campus protest. Uncertainty about the origin and leadership of the organization and its role in cam-pus civil dis- obedience suggest a "plausible basis" for undertaking the investigation, Pratt, 673 F.2d at 421 ("in order to carry out its functions, [a law enforcement agency] often must act upon unverified tips and suspicions based upon mere tidbits of information. A court, ---------------------------------------- Page Break ---------------------------------------- 39a therefore, should be hesitant to second-guess a law enforcement agency's decision to investigate if there is a plausible basis for its decision."). However, the court will go on to consider whether the entire FSM file satisfies the law enforcement purpose threshold of Exemption 7. B. Disintegration of Rational Nexus Although the court will uphold a claim of law enforcement purpose by the FBI upon demonstration of a "rational nexus" between its law enforcement duties and the specific documents for which Ex- emption 7 is claimed, the court is not required "to sanction agency claims that are pretextual or otherwise strain credulity." King v. United States Department of Justice, 830 F.2d 210, 230 (D.C. Cir. 1987) (citing Pratt, 673 F.2d at 421). The exemption is established "only if it is unrefuted by persuasive evidence that in fact another, nonqualifying reason prompted the investigation, [as] for example [where an investigation is conducted] for purposes of harassment." Id. (quoting Shaw v. FBI, 749 F.2d 58, 63-64 (D.C. Cir. 1984)). Plaintiffs have argued that the FBI's concerns about subversive influences, seditious conspiracy and civil disorder were without foundation and, more important, that the FBI itself soon recognized that those concerns were without foundation. Plaintiffs have submitted previously released internal FBI documents and memoranda and other exhibits in support of their allegations. Based upon this evidence, the court makes the following observations: ---------------------------------------- Page Break ---------------------------------------- 40a 1) The FBI's memorandum of October 20, 1964 describes the Bureau's initial investigation of the FSM. Rosenfeld Decl., Ex. A, Attachment 1. It reports that the protests concerned a university rule barring on-campus political activity, and noted that campus groups, including the Campus Congress of Racial Equality, Young Republicans and Young Democrats set up information tables on campus to protest the rule. The memorandum lists the names of eight students suspended for violating the university rules and briefly describes their political activities. Virtually none of these activities indicate direct involvement with identified "subversive organiza- tions"; they include such activities as Jacqueline Goldberg's role as a delegate from the UCB chapter of Women for Peace to a conference in Moscow in 1963; Mario Savio's participation in a sit-in demonstration at the Sheraton-Palace Hotel in 1964; and Arthur and Jacqueline Goldberg's role in organizing a campus demonstration to prove the inadequacy of fall-out shelters. In addition, the memorandum contains the names and brief descriptions of individuals identified at the Sproul Hall sit-in. The Appendices to the memorandum list and describe various nationwide and local groups suspected of subversive activities. Id. at 2. The information about demonstration participants was furnished to then-Governor Edmund ("Pat") Brown at his request. In reaction to the protests, the governor had informed to the FBI of his intention that the Regents take more aggressive action to govern the university in order to prevent university gover- nance by the faculty, which was perceived to be ---------------------------------------- Page Break ---------------------------------------- 41a sympathetic to the protests. Rosenfeld Decl., Ex. A, Attachment 2 at 2. 2) Following the arrests of 800 demonstrators at the Sproul Hall sit-in on December 3, 1964, there was massive picketing at all entrances to the campus and to campus buildings. The FBI's memorandum states that all picketing was peaceful, with no incidents reported. It further states that the names of the 800 demonstrators arrested at Sproul Hall would be obtained from confidential sources and "checked against the indices of the San Francisco office." Rosenfeld Decl., Ex. A, Attachment 4 at 6. 3) Although the FBI targeted FSM leader Mario Savio for intensive investigation and surveillance, monitoring his participation in rallies and tracking his plane flights around the country, a memorandum dated December 10, 1964 states that "[t]o date investi- gation has not developed any information indicating that Savio has been affiliated with any subversive groups; however, during the current demonstrations at Berkeley he has been been extremely close to and in frequent company of Bettina Aptheker"; Aptheker is identified by the author of the memorandum as "an active member of the CP [Communist Party] and leader in the DuBois Youth Club." Rosenfeld Decl., Ex. A, Attachment 6 at 3. 4) The FBI undertook an investigation into the role of Professor Leon Wofsy in the Academic Senate, a majority of whose members supported the FSM and the student demonstrators. In a memorandum dated December 12, 1964, the Bureau concludes that Wofsy, who had been active in the CP prior to 1965, "has had ---------------------------------------- Page Break ---------------------------------------- 42a only a minor part, if any, in promoting the unrest in connection with the student demonstrations," and that as one of the 1500 members of the Academic Senate, "[Wofsy] has exerted no more influence on final decisions than any other single faculty mem- ber." Rosenfeld Decl., Ex. A, Attachment 8 at 1, 3. Moreover, the December 12 memorandum reports that the demonstrations concerned an internal uni- versity matter, concluding that "three basic groups are involved in this campus dispute: administration, faculty and students." Id. at 2. 5) Further background checks continued to reveal few demonstrators having affiliations with subversive groups, and no significant control or influence by such groups in the FSM. A letterhead memorandum dated December 14, 1964 reports that FSM leaders Mario Savio, Stephen Weissman and Suzanne Gold- berg "have not been identified to date as participants in subversive groups." Rosenfeld Decl., Ex. A, Attachment 10 at 2. Again Bettina Aptheker is iden- tified as an FSM leader and member of the Com- minist Party. Particularly revealing evidence of defendant's realization that the Free Speech Movement was not controlled by subversive organization and did not threaten imminent civil disorder is found in the final paragraph of the December 14, 1964 memorandum, which states: This is another good example of a demon- stration which, while not communist originated or controlled, has been exploited by a few com- ---------------------------------------- Page Break ---------------------------------------- 43a munists for their own end. This whole affair points to the need for the Bureau to take all action within its jurisdiction to protect over 26,000 students at the University from a few hundred students containing within their ranks a handful of communists that would mislead, confuse and bewilder a great many students to their own detriment. While this memorandum concerns only the University of California at Berkeley, the same things could happen at other colleges across the land. We need to and will give continuous attention to this matter. Id. at 3 (emphasis added). 6) A memorandum dated December 18, 1964 reports that despite repeated FBI directives to substantiate the involvement of subversive organizations in the FSM, "[i]t would appear from the information avail- able to date that although there were subversives who took part in the demonstrations that [sic] the demonstrations would have taken place anyway and no information has been received or developed to date that these demonstrations were suggested, operated, or controlled by the communist party [sic]." Rosenfeld Dec., Ex. A, Attachment 15 at 7 (emphasis added). The memorandum also notes that the FSM was composed of many campus organizations, including the Campus College Republicans, Conservatives for an Open Campus, and Young Democrats. Id. 7) This failure to substantiate that the FSM was influenced or controlled by subversive organizations, or that it posed a significant threat to civil order, is a ---------------------------------------- Page Break ---------------------------------------- 44a continuing theme of subsequent memoranda, For example, an airtel dated January 8, 1965 reports that "sufficient information has not been developed to show a degree of influence by the Communist Party, either before or during the demonstrations," and that "subversive participation in the demonstrations did not have any bearing on the measure of success achieved. . . . [T]he demonstrations would have taken place with or without any participation by subver- sives, because of the basic grievances." Rosenfeld Decl., Ex. A, Attachment 16 at 2. 8) A memorandum dated January, 19, 1965 sharply distinguished the campus FSM demonstrations from the 1960 San Francisco City Hall demonstrations protesting the House Un-American Activities Com- mittee's issuance- of subpoenas to witnesses with suspected communist affiliations. Rosenfeld Decl., Ex. A, Attachment 18 at 2. The memorandum noted that "[i]n the current UC demonstration, communist affiliation or participation is not of primary concern to any of the demonstrators . . . . [T]here were over 22 different organizations involved, raging [sic] in views from the far left to the far right . . . plus a large number of demonstrators who are not affiliated with any organization." It concludes: "No information has been reported from any confidential informants indicating that the CP played a direct role in the UC demonstrations. " Id. (emphasis added). C. Conclusion Plaintiff Rosenfeld has submitted detailed docu- mentary evidence indicating that the FBI conducted extensive investigation and surveillance of the Free Speech Movement and its participants from the ---------------------------------------- Page Break ---------------------------------------- 45a FSM'S inception, It also is clear that the FBI concluded on the basis of its own information that the FSM was concerned with a matter of internal university administration and not subversive causes; that the FSM was not controlled by subversive organizations; that the vast majority of the student leaders of the FSM were not affiliated with any of the enumerated subversive organizations; and that neither national security nor civil order were threatened by the campus protests. The evidence preferred by the plaintiff, consisting almost exclusively of documents from the FBI's own files, is highly persuasive on these issues. Thus the case at bar clearly is distinguishable from Keys v. United States Dept of Justice, 830 F.2d 337 (D.C. Cir. 1987). In Keys, the court upheld an Exemption 7 claim on a minimal showing of law enforcement purpose, finding that the plaintiff/requester had presented no evidence to refute, and had offered no reason to suspect, the government's colorable claim. Id. at 341-43. Although the court finds that the FBI investigation of the FSM was begun in good faith and with a plausible basis, it is also evident that the Bureau's continued investigation revealed that there was little or no "information sufficient to support at least `a colorable claim' of [the investigation's] rationality." Pratt v. Webster, 673 F.2d at 420-21. This is clearly a case in which what began as a colorable claim based on scant evidence ceased to be a colorable claim as the evidence accumulated. What may have begun as a good faith effort to determine the extent of partici- pation and influence in the FSM by subversive organi- ---------------------------------------- Page Break ---------------------------------------- 46a zations appears to have become a case of routine monitoring of the FSM for intelligence purposes. Such routine monitoring, surveillance and informa- tion-gathering is not a permissible law enforcement purpose under Exemption 7. Lament v. Dept of JUS- tice, 475 F.Supp. at 773-76. Attempting to identify a date certain on which the FBI's investigation lost its rational nexus and took on a nonqualifying purpose is like trying to identify the moment at which a once-hirsute man became bald. However, the court concludes that at least by January 19, 1965, 4. the FBI's initial law enforcement-related suspicions were demonstrably unfounded. The court thus will treat that date as a cut-off point for the scope of a law enforcement purpose exemption under 03)(7). Therefore, the court finds: (1) that the defendants have established a law enforcement purpose for FSM documents generated prior to January 19, 1965; and that all such documents or portions of documents may be withheld if they satisfy the second prong of the test for Exemption 7. However, the court also finds that plaintiff has provided persuasive evidence that by January 19, 1965, another, nonqualifying purpose came to drive the ___________________(footnotes) 4. The memorandum of that date concludes, as did earlier memoranda, that there is no information indicating that the Communist Party had a direct role in the UC demonstrations; that the demonstrations were focused on internal university policy and that participation in the FSM included a broad range of student organizations. Rosenfeld Decl., Ex. A, Attach- ment 18 at 2. ---------------------------------------- Page Break ---------------------------------------- 47a FBI's continued monitoring and investigation of the FSM. (2) Thus, all documents and portions of documents in the FSM file generated from January 19, 1965 forward do not satisfy the Exemption 7 threshold and may not be withheld unless they have been held to fall within the terms of another exemption. (3) The James Rector documents submitted to the court are entitled to exemption under section 552(b)(7) since they all relate to a legitimate law en- forcement purpose, viz., the investigation and prose- cution of persons involved in the death of James Rector. The extent to which exceptions are granted under (b)(7) is set forth in the Appendix. (4) To the extent that exemptions are claimed for portions of the Marguerite Higgins file pursuant to (b)(7), they are not well-taken. There is nothing in the Higgins documents that indicates any legitimate law enforcement purpose within the purview of the statutes and case law discussed above. However, other exemptions under (b)(1) and (b)(2) are permitted as discussed in the Appendix. References to infor- mant numbers continue to be deleted under (b)(l). Except as deletions are permitted in the Appendix, all of the documents shall be released. (5) The Clark Kerr documents as a whole are not entitled to a(b)(7) exemption since it is clear that they do not relate to any investigation performed in connection with a legitimate law enforcement pur- pose. To the extent that discrete items within those documents are subject to (b)(7) exemptions, they are ---------------------------------------- Page Break ---------------------------------------- 48a discussed in the Appendix along with other claimed exemptions. Except for the deletions allowed in the Appendix, the documents shall be turned over in their entirety. (6) In the Max Scherr documents, only three references are made to portions of entries under (b)(7). These appear to be related to legitimate law enforcement activity and, unless provided otherwise in the Appendix, are entitled to a(b)(7) exemption. III. MAGISTRATE'S FINDINGS AND RECOM- MENDATIONS A. Specific Findings Magistrate Claudia Wilken has carefully and thoroughly reviewed in camera four hundred and fifty (450) documents already Vaughn-indexed or selected for Vaughn-indexing by the plaintiff. In addition, defendants were permitted to submit ad- ditional declarations, including in camera declara- tions, in support of the claimed exemptions, and the plaintiff was permitted to file a factual response in the form of a "counter-Vaughn index," with documentary inhibits. Having reviewed the magistrate's findings and the parties' objections to those findings, the court adopts the magistrate's analysis of individual dele- tions with only minor changes, which are reflected below. In addition, in light of the court's finding that the Exemption 7 threshold has been met with respect to the FSM file only for those documents generated prior to January 19, 1965, the magistrate's findings with respect to FSM documents have been modified to reflect this holding. Thus, FSM documents gener- ---------------------------------------- Page Break ---------------------------------------- 49a ated from January 19, 1965 forward must be released unless defendants have claimed and the court has recognized the applicability to these deletions of other exemptions under the Freedom of Information Act or the Privacy Act. Finally, in those instances mentioned below where further declarations will be permitted, such de- clarations should be provided within thirty (30) days from the date of this order. B. Representative Rulings Both the general and specific rulings below should be viewed as representative rulings. The remainder of the documents identified in plaintiffs FOIA request, which were not part of the in camera sample, shall be reprocessed in a manner consistent with these rulings, and release of these reprocessed documents shall be made within thirty (30) days of the date of this order. For purposes of this reprocessing, the court adopts the plaintiffs proposed test for "representative rulings." Pl. Opp. to Def. Obj. to Magistrate's Report at 2-3. Thus, identical documents or documents containing identical information, and similar docu- ments or documents containing substantially identi- cal information, are to be released to the same extent as documents reviewed in camera and ruled upon. C. Further Vaughn Indexing The court assumes that all requested documents have been Vaughn-indexed and orders that they be processed in accordance with the findings below taken as representative rulings. ---------------------------------------- Page Break ---------------------------------------- 50a If, however, plaintiff has requested documents which have not yet been Vaughn-indexed, the parties shall so advise the court within twenty (20) days of the date of filing of this order. Defendants will then have thirty (30) days from the date of such notice to the court to submit the indices. Defendants should also provide the court in camera with the names of all sources deleted from the indexed document to permit the court to check those names against plaintiffs list of previously disclosed or deceased sources. A Special Master to be compensated by the defendants will then review these additional indices and documents. IT IS SO ORDERED. APPENDIX: ANALYSIS OF INDIVIDUAL DELETIONS EXHIBIT B-FREE SPEECH MOVEMENT DOCUMENTS Document 2 In view of this court's holding in its Opinion supra at 1445-50, "Exemption 7 is not well-taken. The document was generated after January 19, 1965. Since no legitimate law enforce- ment nexus exists, the exceptions in (b)(7)(A)-(F) do not apply. Therefore, the document must be released in its entirety. The court denies plaintiff's request to release the in camera declarations made- by defendants with respect to deletions that had originally been made on pages 4, 5 and 7, or with respect to any other deletions. ---------------------------------------- Page Break ---------------------------------------- 51a Document 27 The document itself is entitled to exemption as a pre-January 19, 1965 transmittal. However, the organizational affiliation and location of the source shall be disclosed; the size of the organiza- tion, the nature of the information, and the passage of time make it unlikely that this would lead to disclosure of the source. Document 42 This document is exempt under (b)(7), since it originated before January 19, 1965. Therefore, the court turns to the (b)(7) exceptions. The organizational affiliation of the source on page 1, paragraph 1 could reasonably be expected to reveal the source due to limited access to the detailed information provided. This source did ask for con- fidentiality. The (b)(7)(D) exemption is upheld. The only justification for deletion of the names in the list of files to which copies of this information were routed, hereinafter referred to as the copy count, is privacy. [Exemption (b)(7)(C)]. Here, as is frequently the case below, it is well-known that the individuals in question engaged in activities which made it very likely that the FBI would take an in- vestigative interest in them. Confirmation that the FBI did take such an interest adds little or nothing to whatever consequences the already-public knowledge of their activities may have. The names shall be dis- closed. Deletions on page 2, paragraphs 2 and 5, are two of the few instances in which plaintiff seeks disclosure of the identities of Special Agents for a particular reason. The court finds that the reason advanced ---------------------------------------- Page Break ---------------------------------------- 52a here does outweigh the agents' privacy interests and that the names should be disclosed. Exemption (b)(7)(E), law enforcement techniques, is claimed for the deletion on page 2, paragraph 4. The particular pretext used in the telephone call described here is personal to Mario Savio; the general category of pretext would leap to the mind of the most simple- minded investigator, to paraphrase Judge Peckham in Dunaway v. Webster, 519 F.Supp. 1059, 1070 (N.D. Cal. 1981). It shall be disclosed. On page 3, paragraph 2, the New York City Police Unit, but not the officer's name, shall be disclosed. Due to the nature of the information and the passage of time, it is unlikely that disclosure of the unit would lead to the identity of the officer. The officer's name is exempt pursuant to (b)(7)(C), Paragraph 4 shall be disclosed. There is no privacy interest here since the names are mentioned elsewhere and the document itself recites that no information was located about them. Document 51 Under the court's Exemption 7 holding, this document is exempt subject to the following exceptions. On page 1 the prefix to Wofsy's file number should be released. It is already public knowledge that he engaged in activity likely to bring about this type of investigation. Although the magis- trate upheld the deletions on pages 6, 7 and 8 under (b)(l) or (b)(7)(D) or (b)(6), the court finds that para- graphs 1 and 2 on page 6 contain information that is likely to have been public knowledge in light of the rest of the article and therefore shall. be disclosed. In addition, pages 7 and 8 indicate that Wofsy knew he ---------------------------------------- Page Break ---------------------------------------- 53a was talking to an FBI agent. Finally, at page 8 with regard to Dondoroff, the number of sources and generalized nature of the information are not likely to result in disclosure of sources. Therefore, the infor- mation on pages 6, 7 and 8 shall be released in full. Deletions at pages 9 and 10 concern information that is generally known and not private, and so could. not reasonably be expected to identify the source or impermissible invade the subject's privacy. Defen- dants have released some of this information as of November 2, 1987, after the briefing on the documents selected for in camera review. It is not clear from defendants' submission whether they are claiming the second prong of exemption (b)(7)(D) with regard to page 9, paragraph 1. As noted, the material could not reasonably be expected to identify the source and thus is not exempt under the first prong. The second prong protects material received from confidential sources and compiled in a criminal or national security investigation, appar- ently without regard to whether the material would identify the source. This test is more rigorous than that which is required to find a law enforcement purpose to justify a(b)(7) claim. Powell v. United States, 584 F. Supp. 1508 at 1530 (N.D. Cal. 1984). The information here does not appear to be compiled for the purpose of a criminal or legitimate national security investigation and shall be released. Document 52 This is a pre-January 19, 1965 transmittal and is generally exempt under (b)(7). Some of the documentation provided by plaintiff in this case leads the court to conclude that the source ---------------------------------------- Page Break ---------------------------------------- 54a protected at page 1, paragraph 3 is one whose identity and role have already been disclosed. The (b)(7)(D) exemption is therefore overruled. The names in the copy count deletions shall be disclosed; the FBI's interest in these individuals is already evident, as discussed above. The same is true of the name on page 3, paragraph 1. The privacy interest is especially attenuated here since no information was located on this person. The names and addresses on page 2 are properly deleted pursuant to Exemption (b)(7)(D), as an implied assurance of confidentiality can be inferred from. the circumstances. Page 3, paragraph 4 protects a source,. whose desire for confidentiality can be inferred as a matter of fact from the document. Exemptions (b)(7)(C) and (D), or (b)(6) are appropriate. Document 72 Since this document is dated February 2, 1965, it is not exempt under the court's opinion and shall be turned over in its entirety. Document 75 The face of the document, obtained from a source, does not disclose the source or indicate that it was accessible to only a few persons, as defendants allege. One entire page has been withheld from in camera review without explanation. More- over, the document bears no date. The court there- fore concludes that defendants have failed to establish that the document comes within the narrow exclusion of (b)(7) and orders its release. Document 77 The date that is deleted here could disclose the source under the circumstances. The date and name are exempt since they predate the period set by the court in its opinion, ---------------------------------------- Page Break ---------------------------------------- 55a Document 92 This document is not exempt since it was generated after January 19, 1965. It shall be released in its entirety. Document 128 This post-January 19, 1965 docu- ment is not exempt and shall be turned over. Document 129 Since this document is referred to in Document 128, it shall also be released. Even though this memorandum was issued before January 19, 1965, it is not an agency-generated memorandum, it is a CBS News release. Its significance for agency purposes was indicated by the March 4, 1965 trans- mittal, which is Document 128. Therefore, Document 129 shall also be disclosed. Documents 139 and 140 The (b)(7) exemption is denied pursuant to this court's Opinion. The docu- ment shall be released subject to the (b)(1) deletions. Unless the source appears on plaintiff's lists of deceased or revealed sources, the (b)(1) exemptions will stand. Documents 150-313 Documents 150, 151, 161, 181, 188, 218, 256, 257, 258, 267, 268, 283, 284 and 313 are all post-January 19, 1965. In fact, many of them are dated several years later. For example, Document 268 is pertinent to another era. However, as to the follow- ing documents the (b)(1) deletions are upheld unless the source appears on plaintiff's lists of deceased or revealed sources: Document 150 Lines 1, 5 and 8 could reasonably be expected to disclose a confidential source and may be deleted unless the source appears on plaintiffs ---------------------------------------- Page Break ---------------------------------------- 56a lists of deceased or revealed sources. [Exemption (b)(1)]. Lines 6 and 7, however, would not lead to the identity of the source and shall be disclosed. Document 188 Defendants have made an adequate showing of the confidentiality of the source whose identity is protected in this document, pursuant to exemption (b)(l) Portions of the redacted informa- tion could reasonably be expected to identify the source. The first page may therefore be deleted. However, since the document indicates that there were approximately 100 people present, disclosure of the rest is not likely to lead to the source. Therefore, pages 2 and 3 shall be disclosed up to the words "Action," etc. on page 3. Document 321 This document, dated October 29, 1964, satisfies the threshold under this court's holding on Exemption 7. Applying the (b)(7) excep- tions, the name and position of the Post Office em- ployee who gave this information to the FBI are properly deleted. [Exemption (b)(7)(C) or (b)(6)]. The name of the Post Office box holder shall be disclosed. Defendants do not dispute plaintiff's allegation that commercial Post Office box holders are not entitled to confidentiality. Since the name and the connection with the Free Speech Movement are not confidential, the further fact that the FBI took an interest in this person is self-evident and detracts no further from the privacy interests of the individual. Document 342 Exemption 7 applies to this document pursuant to the court's Opinion. However, the subject of this document and his role are well-known and, with the exception of personal in- ---------------------------------------- Page Break ---------------------------------------- 57a formation, protection of his identity is unjustified. The source in paragraph 2 is not an undisclosed source and shall be revealed. The other party mentioned in paragraph 2 and in the copy count is also well-known and in addition is deceased, His name shall be disclosed. (It was in fact disclosed on November 2, 1987, after the briefing on the documents selected for in camera review). Both of these names were on plaintiff's list of previously released names, provided to defendants in June, 1986. Documents 352-402 Each of these documents is dated before the court-delineated cut-off date of January 19, 1965, and is entitled to exemption with the exceptions under (b)(7) as noted below: Document 352 The deletion in the copy count is a person well known to have engaged in activities likely to bring him to the attention of the FBI, and thus disclosure of his name in this context would detract no further from his privacy interests. Document 355 The name in the first deletion and the fact mentioned about him appear in other docu- mentation submitted by plaintiff and thus shall be disclosed here. Document 357 Plaintiff does not seek the names of commercial institutions that provided information to the FBI; the name of the source may remain deleted. The information would disclose the source, and therefore may remain deleted. The first two deletions on page 4 shall be disclosed because the person in question is well-known. ---------------------------------------- Page Break ---------------------------------------- 58a Document 368 The deletions in this document again rely upon an inference, not accepted by this court, that non federal law enforcement agencies would not wish it known that they cooperate with the FBI. Deletion is particularly unjustified for those on plaintiff's list of previously revealed sources. Unless a further factual showing can be made, these (b)(7)(D) deletions are not well-taken. Document 391 Because this person's activities with respect to the Free Speech Movement are well-known, his file number, name and all of the information in this document, with the exception of paragraphs 2 and 3 on page 2 and the last paragraph on page 3, shall be released. The deleted paragraphs invade the subject's privacy, and this invasion is not outweighed by the public interest. [Exemption (b)(7)(C)]. (The prefix of his file number was released on November 2, 1987). The name in the copy count should also be revealed. Document 373 The names, but not the positions, of, law enforcement officers may be deleted. The holder of the Post Office box mentioned in paragraphs 3 and 4 shall be disclosed since," as discussed above, commercial Post Office box holders are not entitled to confidentiality. However, the handwritten note in- vades the privacy of a third party, which is not out- weighed by the public interest. [Exemption (b)(7)(C)]. Document 402 The name deleted in this document is only a first name, and a common one at that. Re- lease would not identify the person, especially given the passage of time. It shall be revealed. ---------------------------------------- Page Break ---------------------------------------- 59a Document 408 This document, dated January 25, 1965, is not exempt under (b)(7) and shall be released. Document 414 The exemption under (b)(7) is upheld since this document pre-dates January 19, 1965. However, the names in the copy count shall be disclosed since they are disclosed elsewhere. It is clear that they engaged in activities likely to cause them to be of investigative interest to the FBI, and confirmation that they were in fact of investigative interest to the FBI discloses nothing more. Some of the names were released on November 2, 1987. The deletion of the names of the Special Agents from the body of the report is proper as their privacy interests outweigh any public interest in their identity. The one exception to this is the name of an agent whose identity and activities in this context are already well-known. His name shall be disclosed. Document 427 This document shall be released, since the court's holding on Exemption 7 excludes it from the exemption. Document 436 The (b)(7) exemption applies to this document which pre-dates January 19, 1965. In addi- tion, the names and file numbers of these confidential sources are properly deleted. However, the rest of paragraph 1 could be disclosed without identifying these sources. The remainder of the document details activities among such a small group of persons that their disclosure could reasonably be expected to identify the source. [Exemptions (b)(7)(D)]. The information is such that it would also impermissible implicate the privacy interests of the third parties mentioned. ---------------------------------------- Page Break ---------------------------------------- 60a Documents 454-753 All of these documents lack a legitimate law enforcement nexus based on the court's holding and, except as noted below, shall be released in their entirety. Document 495 Portions of this document are exempt under (b)(l) because they contain information regarding intelligence sources. The claims asserted under (b)(1) for other portions of the memorandum are not well-taken. The type of information disseminated to the informant is not sufficiently specific so as to identify the informant. Nor would it disclose intel- ligence methods. The "method" described is nothing more than what a reasonable person would do in order to obtain information in the ordinary course of her affairs. Therefore, pages 1, 2 and 3 shall be released with the informant's name, address and other identifying information deleted. The locator numbers and names or other identifying information of any Special Agents may also be deleted. Document 634 Although this document is not entitled to an exemption under (b)(7), it contains information on a small group activity which could identify the source and is therefore exempt under (b)(l). The context is adequate to justify an inference of an implied assurance of confidentiality and defendants make an adequate showing that the source is dive and undisclosed. All of the deletions are pro- perly taken. Documents 759 and 760 These documents are pre- January 19, 1965 and are exempt under (b)(7) except as follows: There is no indication that the person whose ---------------------------------------- Page Break ---------------------------------------- 61a identity is protected by these deletions wished to have his views kept confidential. The views are not particularly personal, and the public interest outweighs whatever limited privacy interests this person may have. The third party mentioned tangen- tially in Document 760 is publicly known to have played the role mentioned here and thus also need not be protected. EXHIBIT C- JAMES RECTOR FILE Document 8 The paragraph of text on the cover page shall be released, The defendants state that this paragraph refers to information given by a non-federal law enforcement agency but this fact, if true, does not appear in the text. Furthermore, for the reasons discussed above it does not appear that knowledge of the cooperation of federal and non-federal law enforcement agencies would be deleterious to either. The field office deleted from the copy count shall be disclosed. As will be noted below, the witness whose identity might be revealed by the disclosure of this field office shall be disclosed in any event. The handwritten word on the lower left hand corner shall be disclosed since the paragraph of text is to be disclosed. The Special Agents' names at the top and at the bottom may be deleted here as elsewhere. The person whose identity is concealed by the deletions on page 10 shall be revealed. There is no indication that (s)he spoke pursuant to either an express or implied assurance of confidentiality and his or her position is such that it seems likely that his or her issuing of such information would be expected. ---------------------------------------- Page Break ---------------------------------------- 62a Again, the name ordered released on page 10 should also be released on page 11. Furthermore, the name of the doctor in paragraphs 2, 3 and 4 should be disclosed. other documents indicate that his role in this in- cident is already a matter of public knowledge. The identity and role of the person whose identity is concealed by the deletions on page 12 and 13 is also a matter of public record and there is no indication that he or she spoke with an express or implied assurance of confidentiality. The information given is not particularly private. It shall be released. The person whose identity is protected on pages 14 through 16 was a witness at trial, according to infor- mation provided by plaintiff on July 20, 1987. Defendants make no mention of this fact, nor any showing that his identity should be protected in spite of it. There is no indication that he spoke with either an express or implied assurance of confidentiality. The deletions are improper. Powell v. United States, 584 F. Supp. at 1529. The name of the police officer in question may be deleted on page 17, but the agency shall be disclosed for the reasons discussed above. Paragraph 3, with the exception of the officer's name, shall be released. Paragraph 4 may remain exempt in the interest of the privacy of the person mentioned. None of the exemptions claimed on pages 18 through 20 is well-taken, with the exception of the name of the Special Agent. The witness whose identity is protected here testified at trial and his role in the incidents in question is publicly known. The third parties whom he mentions on page 20 also ---------------------------------------- Page Break ---------------------------------------- 63a testified. There is no reason to believe that any of these people would wish their identities or roles to be kept confidential. Again, defendants do not even men- tion that these people testified, much less provide a particular showing that this information should be protected in spite of their testimony. Document 17 None of the deletions on the cover page through page 5 are well-taken, with the ex- ception of the Special Agents' names and initials. The person whose identity is protected here testified in court with regard to this incident. There is no indication that he spoke with either an express or implied assurance of confidentiality or that he would wish his, identity or role in the incidents to be kept confidential. None of the information impinges upon his privacy interests with the exception of the deletions on page 6, which are exempt. Document 52 The name of the particular Selec- tive Service employee who provided the information may remain deleted on cover page A. With respect to the rest of the document, many of the persons whose identities are protected by the deletions were trial witnesses or persons whose identities and roles in the events in question were otherwise publicly known. For the reasons discussed above, many of them shall be released. Specifically, on page 1 the name of the first person mentioned in the synopsis need not be released; how- ever, the second and third names shall be released, along with the text about the third person. The deletion in the last line of that paragraph may stand. On page 2, the name of the person mentioned in ---------------------------------------- Page Break ---------------------------------------- 64a paragraph 1a may remain deleted, 1b shall be disclosed and 1C may remain deleted. On page 3, the person in paragraph d shall be disclosed as shall the person in paragraph e. The name of the person in paragraph f may remain deleted. The person in paragraph g shall be disclosed. The first person mentioned in paragraph h shall, be disclosed; the name of the second may remain deleted. The person mentioned on page 4 may remain protected. On page 5, the person named at la may be protected; 1b shall be disclosed; 1C may remain protected; and 1d shall be disclosed as shall the paragraphs of text following Id. The name designated 1h, however, may remain deleted from this paragraph. 1e shall be disclosed; 1f is exempt; and 1g shall be disclosed. The name of the Special Agent in paragraph 3 may remain deleted. The deletions on pages 6, 7 and 8 may stand. The court was unable to find the person interviewed at pages 7 and 8 in any of the documentation of witnesses who testified or who were known to have observed the events in question. However, if defendant is aware that this person's role was known then his name here and elsewhere shall also be disclosed. The person identified at pages 6, 7 and 8 spoke freely with agents, appeared in a newspaper photo related to the incident, indicated willingness to be located for further inter- view, and was a witness who could have and may have been called at trial. Thus there is no indication that he provided information with an expectation of privacy and his name shall be disclosed. Pages 9 through 18 contain information from various persons, ail of whom testified. All of these deletions shall be disclosed with the exception, as usual, of the Special Agents' names and initials. The deletions on page 19 ---------------------------------------- Page Break ---------------------------------------- 65a shall be disclosed. The deletion on page 201 paragraph 1 may stand. The remainder of the deletions on that page shall be disclosed. As to page 21, the fourth name and information about the person named shall be disclosed. The remainder of the information is pro- perly deleted in the interests of the privacy of the per- sons mentioned. Document 61 The (b)(7)(C) exemption claim on page 1 is well-taken. The (b)(7)(D) information on the first and second page's shall be disclosed as the person mentioned here was not interviewed and did not be- come a source. Disclosure of the name on these two pages would not lead to identification of the person named on pages 3 and 4 who was interviewed and may be protected as a confidential source. Documents 252 through 397 The deletions on these pages are well-taken. The privacy interests of third persons which would be impinged by release of these documents outweighs the somewhat attenuated public interest in their disclosure. Document 398 The deletions in this document protect the identity of a person who stated that he was willing to testify. Accordingly, it does not appear that he desired that his interview remain confidential. Nothing in the report impinges upon his privacy interest with the exception of the information on cover page A, the last line of page 1, and lines 7-10 on page 6. Documents 405 and 406 The deletions here are properly exempt. Release of the information would unjustifiably impinge upon the privacy interests of ---------------------------------------- Page Break ---------------------------------------- 66a third parties mentioned with no correspondingly weighty public interest. Document 408 The first person mentioned in the synopsis cm page- 1 may be protected. The second, third and fourth persons mentioned shall be disclosed. The information in the last two lines of the synopsis is exempt for reasons of the privacy of a third person mentioned. The first deletion on page 3 is proper, the second is not. The deletion on page 5 may stand. The information deleted on page 6, paragraphs 1, 2 and the first three lines of paragraph 3 shall be disclosed. The person whose identity is protected here appeared voluntarily at an FBI office to give Information. There is no indication that (s)he did so with any expectation of confidentiality. The third person mentioned in paragraph 3, lines 6 through 12, may remain exempt in the interest of his privacy. The deletions in paragraph 4 are not well-taken. The deletions, on pages 7, 8 and 9 may stand in the interest of privacy of third persons mentioned, which is not outweighed by the public interest. The deletion on page 10, paragraph 1 shall be disclosed; paragraph 2 need not be. On page 11, the information at III may remain deleted in the interest of the privacy of the person mentioned, which is not outweighed by the public interest. The name deleted in paragraph IV, subparagraph 1, shall be disclosed as this person testified in court and no reason is advanced to protect his identity in spite of his testimony. The name of the person protected on page 12 may remain deleted as the court was unable to find any indication that he testified or that his role in the events was known. The person whose identity is protected on pages 13 through 16 testified and did not appear to desire ---------------------------------------- Page Break ---------------------------------------- 67a confidentiality. A third person mentioned on page 14, paragraph 2, lines 3 through 5, maybe protected. He does not appear to be mentioned elsewhere, and his privacy interests are not outweighed by the minimal public interest in his identity. EXHIBIT D-MARGUERITE HIGGINS Document 22 Page 1 The Special Agent's name may be deleted here as throughout, except where specifically men- tioned. The alias in the second deletion has been released elsewhere and shall be released. The third deletion is properly taken in that its release would disclose intelligence capability. [Exemption (b)(l)] Page 2 The temporary source symbol numbers should be released where the identity of the source has been disclosed. The deletions made in the first full paragraph pursuant to Exemption (b)(l) are overruled. The "source" and "intelligence capability" demonstrated here are self-evident. The (b)(l) dele- tions in the second full paragraph are well-taken. Page 3 The temporary source symbol number here shall be released if the underlying source has been released. Pages 5 and 6 Plaintiff does not seek the identity of agencies of this type. The T-numbers here shall be disclosed if the underlying source has been disclosed. Pages 17, 18 and 19 Only the (b)(2) exemptions are upheld. The rest of the page shall be disclosed. ---------------------------------------- Page Break ---------------------------------------- 68a Page 21 Lines 4 through 6, 9, and 10 of paragraph 1 contain Special Agent names which may be protected. The remaining deletions in this paragraph are based on exemption (b)(1). However, the only "intelligence capability" they reveal is self-evident. They shall be disclosed. The (b)(5) exemption claim raised by the Air Force here and on page 22 is frivolous. The docu- ment contains no "advice, opinions or suggestions" and does not reveal any deliberative process. All information on this page shall be disclosed except as allowed above. Page 22 The information on this page shall be disclosed except for informant information, which is exempt pursuant to exemption (b)(1), unless the source has been revealed. Page 23 The T-numbers shall be revealed here for the reasons discussed above. Page 25 Only the (b)(2) exemption is upheld. The rest of the page shall be disclosed. Page 52 The first deletion on page 1, the alias, is disclosed elsewhere and shall be disclosed. The deletions in paragraph 1 shall be disclosed for reasons discussed above. Given the nature of the information in paragraph 2, the passage of time, and the deaths of Marguerite Higgins and the other person mentioned, it seems extraordinarily unlikely that release of this information would allow anyone to discern the identity of the source of the information. Unless some further showing can be made, this information shall be released. ---------------------------------------- Page Break ---------------------------------------- 69a The comments above apply to page 2 as well. The intelligence-gathering method mentioned here is self-evident and thus can be disclosed safely, unless some further showing can be made. Summary The court emphasizes that all documents in this file shall be turned over in their entirety except to the extent that (b)(1) and (b)(2) exemptions are allowed. EXHIBIT E-CLARK KERR Document 2 The deletions on page 2 attempt to conceal an incident which, as plaintiff correctly points out, revealed extensively elsewhere. The only further fact that appears here is confirmation that the FBI investigated the incident. However, the nature of the incident is such that it is self-evident that the FBI would take an interest in it and no further invasion of privacy appears from confirmation that it did. Defendants' declarant Llewelyn at para- graph 242 states that information is released if the subject is obviously known to be the subject of investigation. That is certainly the case here. This information shall be released here and elsewhere. Document 27 The prefix of the file number here can be released, and the file number as a whole shall be released if in fact it is Kagel's. The FBI's interest in him and the reasons for it are obvious from other documents, and nothing further would be revealed by this release. Document 33 The deletion at page 1 has been re- scinded by the Central Intelligence Agency ("CIA"). ---------------------------------------- Page Break ---------------------------------------- 70a The justification for its prior withholding is not apparent. The information on page 2 shall be revealed for the reasons discussed above in connection with document 2. Document 56 The court finds no "rational nexus" between this particular document and the law en- forcement duties of the FBI. Considering the infor- mation-or lack thereof-developed about Dr. Kerr's affiliation with subversive organizations in the FBI's 1953 applicant suitability investigations (see E 133), the kind of "information" presented in this document (see especially paragraph 4, lines 4-8) does not indicate a "good, faith belief that the subject may violate or has violated federal law." This is especially true since the document post-dates Yates v. United States, 354 U.S. 298, 77 S, Ct. 1064, 1 L.Ed.2d 1356 (1957), which established that the Smith Act and analogous laws allowed prosecution only of active members of the Communist Party with specific intent to advocate the forcible overthrow of the United States Government. See Lament v. Dep't of Justice, 475 F. Supp. at 774. Defendants do not controvert plaintiff's allegation that no applicant suitability investigation was under- way in 1958 to justify compilation of this information. Rather, its purpose, as described in related Document 134, was "merely for [the Bureau's] information and in the event that the Bureau may receive some in- quiry concerning Dr. Kerr, who at best is a highly controversial figure in California education." Ac- cordingly the (k)(5), (j)(2) and (b)17) exemptions are not well-taken. Although not claimed, the Court has considered Exemption (b)(6) and finds that the high ---------------------------------------- Page Break ---------------------------------------- 71a degree of public interest in this document outweighs the privacy interests of the individuals mentioned, especially given their public positions. Furthermore, if the confidential source of this information is deceased or already disclosed, as may be the case, the information would not be exempt even if a law enforcement nexus existed. Document 65 There is no indication that the person whose name is deleted on page 1 desired or was promised confidentiality. In fact there are indications to the contrary. Defendants argue an implied assurance of confidentiality from the nature of the information. However, this would certainly be out- weighed by an express statement that confidentiality was not desired. Furthermore, the person mentioned here is disclosed in documents provided by plaintiff. The person mentioned on page 2 at line 4 shall be disclosed, The FBI's investigative interest in the person mentioned at lines 5 through 6. is apparent from other documents and the name shall be disclosed here. As to line 7, the fact that the FBI is attempting to interview a certain person does not qualify that person as a confidential source; the name shall be disclosed. Document 67 Defendants claim that this docu- ment recites that the reporting officer states that the source here needed confidentiality. However, the document does not support this claim. The name on pages 1 and 2 shall be disclosed. As plaintiff states, there is no showing that the source in the last dele- tion on page 2 was an applicant suitability interviewee ---------------------------------------- Page Break ---------------------------------------- 72a as defendants claim. A further showing would be needed to justify this deletion. , Documents 69, 70, 71 and 73. The information de- leted here was fully disclosed in earlier FOIA releases. In fact, plaintiff cited unredacted copies of some of these very documents to the FBI in June 1986, in support of his inclusion of Mr. Combs in his list of disclosed sources. Although defendants had agreed to reprocess the documents in light of plain- tiff's showing, these redactions were still claimed in October 1986. Plaintiff pointed this out again in his second declaration in support of his motion for summary judgment, filed February 23, 1987. Never- theless, defendants continued to claim these exemp- tions in the documents submitted for in camera review on May 19, 1987. Finally, on November 2, 1987, Documents 71 and 73, but not documents 69 and 70, were released. Defendants' only explanation is "in- evitable processing inconsistencies." These circum- stances raise serious doubt about the care and good faith with which defendants have processed these requests. Document 72. It may be, as plaintiff argues, that there was no legitimate law enforcement or applicant suitability purpose to the information protected here. However, the deleted source volunteered his infor- mation to the FBI and asked for confidentiality in the apparent belief that his information did not have law enforcement implications. That he may have been wrong should not necessarily result in disclosures that would be embarrassing to him. This source is not on any of plaintiffs lists of deceased or revealed sources. The information that would lead to his ---------------------------------------- Page Break ---------------------------------------- 73a identity should be concealed pursuant to exemption (b)(6), if not (b)(7)(C) or (D). However, the person mentioned on page 1, paragraph 1, lines 1 and 2, and paragraph 3, line 4, shall be disclosed. Further, the second deletion at page 2, line 5, could safely be disclosed. The last sentence on page 4, continuing to page 5 shall be disclosed, exclusive of the name. The last paragraph, line 1, second deletion, shall be disclosed. Document 80 The deletion here is an attempt to protect the identity of a person who gave a certain letter to the FBI. Defendants claim a Privacy Act (k)(5) exemption even though the letter was received after the last background check on Dr. Kerr was completed. Defendants explain that volunteered information about Dr. Kerr was placed in his existing applicant suitability files. Defendants' filing system, however, does not convert volunteered information into information gathered by the FBI solely for the purpose of an applicant investigation. While the source might feel some embarrassment over pro- viding the information, given the source's public posi- tion, this consideration is outweighed by the public interest. The letter shall be disclosed in unredacted form. Document 87 This document likewise cannot be converted to a (k)(5) exempt document by being placed in an applicant suitability file. The court does not concur in defendants' view that the face of the document implies a desire for confidentiality. The document relates to a meeting of a public body and the informant volunteered the information. There is no suggestion that he expected confidentiality and, given ---------------------------------------- Page Break ---------------------------------------- 74a his position, he should not have expected it. The name deleted here shall be released. Document 89: This document is the same as Docu- ment 141 and will be discussed below. Document 127 For reasons discussed above, the deletions on this page, with the exception of the Special Agent's name, the T-number and the commer- cial institution name, are not properly taken. On page 2, the name and identification of a source who asked for confidentiality and the permanent source symbol number of a second source are properly deleted. The last two sentences, however, are too general and the document too old to tend to identify a source. Some documents submitted by plaintiffs are relevant on this point. Document 133 The temporary source symbol number on pages 1 and 2 need not be disclosed. Plaintiff does not contest the deletions on pages 5 through 8a, and 10 through 13. The deletion on page 8a, paragraph 4, shall be disclosed for the reasons discussed above, with the exception of the name and address in the last two lines of the deletion. The source in paragraph 5 need not be disclosed. Plaintiff does not seek the names of financial institutions who cooperated with the FBI. Page 9, paragraphs 1, .2, 3 and 7 shall be disclosed for the reasons discussed above. The name and ad- dress of the third party appearing on page 9a, para- graph 1, not released elsewhere, maybe deleted. The rest shall be disclosed. Paragraph 2, lines 3 and 4 shall be disclosed for reasons discussed above. Lines 5 ---------------------------------------- Page Break ---------------------------------------- 75a and 6 are properly deleted as revelatory of a con- fidential intelligence source or method. Lines 6 through 9 are properly exempt as impinging on the privacy interests of a tangential third party. It is not at all apparent how the deleted information in paragraph 3 would disclose an intelligence source or method. Unless a further showing can be made, it shall be disclosed. The second and third names in the paragraph, however, may remain deleted for reasons of privacy. Paragraph 5, lines 1 through 3, shall be disclosed for reasons discussed above. Lines 4 through 7 contain deletions for which exemption (b)(1) is claimed. It is unclear how this information would disclose an intelligence source or method. The infor- mation could have been obtained from many sources by several methods. The particular method men- tioned in the declaration is an obvious one. Absent a further showing, this information shall be disclosed. One of the temporary source symbol numbers on page 14 shall be disclosed. As long as the identity of a source is disclosed, there would appear to be no rea- son not to disclose its temporary number. The re- maining exemptions on that page are well-taken. The deletions at page 15 are not well-taken for reasons discussed above. Document 134 This document is related to Docu- ment E 56, and the analysis and outcome are the same. Document 137 The source here earlier requested and was given an express assurance of confidentiality. The deleted information would identify this source. While there may not be a law enforcement purpose for ---------------------------------------- Page Break ---------------------------------------- 76a the information, disclosure of the source's role would be embarrassing. Since the source is tangential, public interest does not outweigh his privacy interest and a (b)(6) exemption is proper. Document 138. The first source mentioned here shall be disclosed for reasons discussed above. The name in the heading shall be disclosed, as it is disclosed elsewhere. The facts disclosed about this person are well-known and it is self-evident that these facts would have aroused FBI interest. Thus, the further information that these facts did arouse FBI interest involves no additional invasion of privacy. The third source shall be disclosed as the information was given in sworn testimony and thus was not intended to be confidential. Documents 140 and 141 Release of Document 141 (aka Document 89) would reveal the source of that document, who is also protected in Document 140. However, defendants do not claim a law enforcement purpose for this collection of information. Defen- dants' (k)(5) claim is not applicable since the infor- mation was received after the last background check on Dr. Kerr. Plaintiff's documents indicate that the role of this source is well-known. Thus, although this source might be embarrassed at disclosure of the particular activity he engaged in this instance, the information here is relatively significant to the public interest and on balance the court concludes that the information shall be released. Document 183 Defendants' claims with regard to the source on page 1 are extremely puzzling and raise further doubts about the care and good faith with ---------------------------------------- Page Break ---------------------------------------- 77a which these requests were processed. Defendants initially claimed that this source desired confidential- ity. They then conceded that their documents specifi- cally reflected that the source stated he did not desire confidentiality. Then, finally, in defendants' reply to plaintiffs "counter-Vaughn index," they revert to claiming that this source did desire confidentiality. Defendants further claimed that identification of this source would lead to identification of others within the document. This claim is specious as there is no relation between this source and the others in the document. This source shall be revealed. The source deleted in paragraph 2 provided positive information about Dr. Kerr. This does not lead to an inference that he desired confidentiality. The deleted source at page Z shall be revealed for the same reason. The source at pages 3 through 5 shall be disclosed for reasons discussed above. The fact that the source at page 6 gave positive information leads to an inference that he did not desire confidentiality. His name shall be disclosed. Document 187 The deletion at page 1, paragraph 3, properly protects the identity of an applicant suit- ability source who requested confidentiality. The de- letion at page 2, line 1 is properly taken. The source at line 9 shall be revealed. Defendants' claim, in their "Justifications" filed May 19, 1987, is that the release provided by plaintiff for the information in paragraph 2 was too old to be accepted by the IRS. Plaintiff responds that the release was timely when provided but became too old only because the FBI delayed in providing it to the IRS. Defendants do not reply to this claim. The information shall be released. This ---------------------------------------- Page Break ---------------------------------------- 78a tactic on defendants' part raises further doubt as to the good faith with which they processed these claims. 1. Document 188 . Again, the positive sentiments ex- pressed by the informants on page 3, paragraphs 4 and 5 and page 4, paragraphs 1 and 2 lead to an inference that they did not desire confidentiality. In addition, one of them is disclosed elsewhere. The deletions on page 4, paragraph 3, page 5 and page 6, paragraph 2 are not well-taken for reasons discussed above. The date in paragraph 6 may remain deleted. The first four deletions on page 7 protect a source who does not appear to have expected confidentiality, and so shall be revealed. Since the only claim with regard to the last deletion is that it would disclose the source of the story, it shall also be disclosed. The first deletion on page 8 is properly taken in the interest of the privacy of a tangential third party. Paragraphs 2 and 3 properly protect the identity of a source who requested confidentiality, as does page 9, paragraph 1. Page 9, paragraph 2 shall be disclosed. The source in paragraph 3 may be protected. The nature of the information gives rise to an implied as- surance of confidentiality. Defendants further argue here, as elsewhere, that an implied assurance of confidentiality should be inferred from the fact that a ___________________(footnotes) 1 The court notes that in their summary judgment plead- ings, defendants argued that the reason for withholding tax information was that plaintiff did not supply a release specific to tax information. Plaintiff did not dispute that, but re- sponded that an agency regulation was not sufficient to trigger exemption (b)(3). Apparently this argument has been aban- doned by defendants. ---------------------------------------- Page Break ---------------------------------------- 79a source had access to information few others had. This claim makes no sense if the information given did not make use of such restricted access. Document 227 The title and deleted paragraph on the cover page shall be disclosed for reasons dis- cussed above. Page 2, paragraphs 2, 3 and 4 need not be disclosed; plaintiff does not seek the names of financial institutions or temporary source numbers. Paragraph 5 contains a proper deletion for a per- manent source symbol number. However, the re- mainder of the information presented is too old and too general to identify the source. Documents pre- sented by plaintiff are relevant here. This infor- mation shall be disclosed, Page 3, paragraphs 3, 4, and 5 properly protect the privacy interest of third parties who are tangential to plaintiff's interests. Document 239 The deletions here are properly taken. [Exemption (b)(l)]. Plaintiff's concern that `the documents were classified after the date scheduled for their release is ill-placed. Document 244. Again, plaintiffs concern that the document was classified after its release date is ill-placed. However, the deletion does not disclose to the court any information regarding an intelligence method. It shall be released. EXHIBIT F-COINTELPRO Document 64 Defendants claim that this entire document is exempt as providing information about intelligence analysis, sources and methods. The court finds that much of Part 1 is in the nature of an ---------------------------------------- Page Break ---------------------------------------- 80a essay on the political movement in question. It draws on public sources such as books, newspapers, current events and the views of well-known philosophers. It does not appear to disclose any intelligence sources or methods. The opinions expressed by the author do not appear to correlate to any particular actions, interests or methods. The method of analysis used is not particularly distinctive. One might expect to read an essay such as this in a magazine. Accordingly, the court has determined that certain portions of Part I can properly be released the cover page; paragraphs 1 and 2 of the Introduction, the Table of Contents, exclusive of the list of countries; the cover page of Part I; page 1 through paragraph 1 of page 4 page 5, paragraph 2 through page 7, paragraph 2, exclusive of the footnote; page 8, paragraph 3 (exclusive of the footnote) through page 9, paragraph 2; page 10, paragraph 2 through page 11; page 12, paragraph 2; page 13, paragraphs 2 and 3; page 14, paragraph 3 through page 15, paragraph 2, exclusive of the footnote. The names of government agents and identifying numbers are properly deleted. Part II of this document contains specific informa- tion with regard to foreign groups and individuals that could well reveal intelligence sources and interests. However, Part II also contains information regarding a number of groups and individuals, many of whom are well-known and whose political sentiments have been public knowledge for some time. Wholesale exemption is not justified where there has been no attempt to justify the particular deletions. Since there has been no attempt to particularize or dis- ---------------------------------------- Page Break ---------------------------------------- 81a tinguish among groups or individuals, the exemption is abused and Part II shall be turned over in its entirety. EXHIBIT II-MAX SCHERR Document 2 Plaintiff has established that the person mentioned on page 1 and the information about him or her has been released elsewhere. Absent an additional showing, it appears that nothing new would be disclosed by release of the information here, with which may properly remain deleted as tending to identify an intelligence source. Document 6 The temporary source symbol numbers on page 1 need not be released. The information in paragraph 1 is disclosed elsewhere and shall be disclosed here. Paragraphs 2 through 4 are properly deleted to protect a confidential source. The deletions on page 2, paragraph 1 are also proper to protect a confidential source. However, the name and address contained herein shall be disclosed. The information in paragraphs 2 and 4 is well-known and its release would not disclose the source. Paragraphs 3 and 5 may remain deleted. Paragraphs 6 and 7 shall be disclosed, with the exception of the name of a third party therein, as it is information discussed else- where that would not identify the source. The infor- mation deleted from page 3, paragraphs 1, 2, 4 and 5, except the source in number 5, shall be disclosed, for the same reasons. ---------------------------------------- Page Break ---------------------------------------- 82a The deletion on page 4, paragraph 2 is proper. The identities of the T-number sources are properly pro- tected. Much of the information that the court ordered disclosed above is addressed in the declaration of Sherry Davis. She is concerned that disclosure of this information would disclose a particular source and characteristics thereof. However, a reading of the deleted information does not suggest to the court that the source or its characteristics would be implicated by release of the information. The information shall be disclosed. EXHIBIT J-CACTUS PROGRAM Documents 2 and 3 Virtually all of each of these two documents was originally withheld by the CIA. On October 27, 1986, portions of the documents were disclosed, indicating that CACTUS was a cryptonym for use in teletype communications between the FBI and the CIA. The CIA still claimed, however, that further release would reveal a "CIA administrative methodology used to restrict the flow of sensitive information . . . still utilized at the present time . . . . " Dube Decl., October 28,1986, "Par." 38. On September l, 1987, however, the CIA further re- vealed the subject matter that should be denoted "CACTUS," and that use of the cryptonym would facilitate prompt action on the communication. With that release, most of the information in the docu- ments was revealed, and it became apparent that no "administrative methodology" was mentioned other than the use of the cryptonyms and teletypes, both of ---------------------------------------- Page Break ---------------------------------------- 83a which were already apparent from the 1986 dis- closure. This chain of events raises still more doubt about the care and good faith with which plaintiff's FOIA requests were processed. The remaining deletions protect only examples of the types of teletypes that should be designated CACTUS, and names" of government agents. These are properly deleted, since they would either disclose particular matters of intelligence interest to the CIA or invade the privacy of third persons mentioned who are not well-known or who are tangential to plaintiff's inquiry, or both. [Exemptions (b)(l), (b)(3) and (b)(6)]. ---------------------------------------- Page Break ---------------------------------------- 84a APPENDIX C UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA No. C-85-2247 MHP (CW) No. C-85-1709 MHP (CW) [CONSOLIDATED CASES] SETH ROSENFELD, PLAINTIFF v. UNITED STATES DEPARTMENT OF JUSTICE AND FEDERAL BUREAU OF INVESTIGATION DEFENDANTS [FILED FEB. 3, 1988] MAGISTRATE'S REPORT This matter was referred to undersigned by the Honorable Marilyn Hall Patel for the following deter- minations: 1. To review in camera two hundred and fifty (250) documents plaintiffs will select per this order for Vaughn indexing to determine whether the Freedom of Information Act ("FOIA") excep- tions that the FBI applies are appropriately taken; ---------------------------------------- Page Break ---------------------------------------- 85a 2. To review in camera two hundred (200) documents which will be selected by plaintiff from the pool of documents the FBI has already Vaughn indexed to determine whether the FBI has applied the FOIA exceptions fairly: 3. To review on a random basis such other documents filed by defendant and indexed pur- suant to Vaughn as the Magistrate deems neces- sary to satisfy herself that exceptions have been properly taken; 4. To evaluate whether the Vaughn indexes the FBI has prepared and will prepare as identi- fied in this Order, and the materials they have released consequent to that indexing, conform to the requirements of Magistrate Wilken's July 25, 1986 order. Defendants presented in camera unredacted copies of the documents referred to in Judge Patel's order, along with "Detailed Justifications" for each deletion, and additional declarations, some field in camera. Defendants were permitted to provide additional documents and justifications for review which had not been selected by plaintiffs. Plaintiff was permitted to file a detailed factual response in the form of a "counter Vaughn index," with documentary exhibits. Defendants responded and plaintiff replied. Defen- dants also released additional information which had earlier been claimed exempt, and this set off another spate of memoranda. The undersigned has painstakingly reviewed all of this material, as well as defendants' original Vaughn index declarations, and the cross-motions for sum- ---------------------------------------- Page Break ---------------------------------------- 86a mary judgment with their voluminous supporting declarations and exhibits. The appropriateness of the exemptions claimed in the documents selected for in camera review will be addressed in detail below. In summary, in response to paragraphs 1 and 2 of Judge Patel's order, the under- signed finds that a substantial number of exemptions were not well-taken. In the light of that finding, the undersigned did not deem it necessary to review any additional documents. (See paragraph 3 of the order.) Paragraph 4 of Judge Patel's order refers to plaintiffs' claim that in complying with the July 25, 1986 indexing order of the undersigned, defendants used an unusual definition of the term "documents" with the effect of depriving plaintiff of his expected opportunity to select some of the documents to be indexed. Upon review of all the material on this point, the undersigned finds that, in complying with the indexing order, defendants did employ a definition of the term "document" different from that employed earlier in processing the documents. Based upon the original usage of the term, plaintiff estimated that he would be allowed to select 500 documents for indexing. As a result of the new definition, he was not allowed to select any documents. This effect has already been partially remedied. in Judge Patel's order, as plaintiff selected 250 additional documents to be indexed for the in camera review. The undersigned was not asked to provide recom- mendations in the light of these findings, but volun- teers the following nonetheless. In those instances mentioned below where further declarations could be provided, they should be, within two weeks of the order. In all other instances where exemptions were overruled, the material should be released forthwith. ---------------------------------------- Page Break ---------------------------------------- 87a Those rulings should also be viewed as representative rulings and the remainder of the documents should be reprocessed and further releases made in compliance, within 30 days. Unless plaintiff is satisfied with that release, he should be allowed immediately to select at least 250 additional documents for indexing which should be completed 30 days thereafter. (Alterna- tively, the Court might wish to order all of the deletions not released on reprocessing to be indexed.) These indices and, if necessary, the documents could then be reviewed by the Court, or by a Special Master compensated by defendants. Defendants should also provide the Court in camera with the names of all the sources whose names are concealed in the indexed documents so that the Court can independently check these against plaintiffs list of previously disclosed sources. Before proceeding to the detailed analysis of the exemption claims, some general observations can be made. The FOIA favors disclosure, the purpose of the Act being to ensure an informed citizenry. 5 U.S.C. 552(a) (3); Department of the Air Force v. Rose, 425 U.S. 352,361 (1976); NLRB v. Robbins Tire & Rubber Co., 437 U.S. 213 (1978). To this end, the nine statutory exemptions are to be narrowly construed, with the burden on the government to justify exemp- tion. Rose at 360-61; Church of Scientology v. Dept. of the Army, 611 F.2d 738, 742 (9th Cir. 1980). This burden may not be met with conclusory and general- ized allegations of exemptions. Church of Scientology at 742, citing Vaughn v. Rosen, 484 F.2d 820, 826 (D.C. Cir. 1973). The District Court is to review the agency's decision de novo. 5 U.S.C. 552 (a) (4) (B); Van Bourg, Allen, Weinberg & Roger v. NLRB, 751 F.2d 1270,1272 (9th Cir. 1985). ---------------------------------------- Page Break ---------------------------------------- 88a The threshold showing that must be made for invocation of FOIA Exemption 7 is that the informa- tion was compiled for law enforcement purposes. The test has been articulated as follows: The Ninth Circuit nonetheless requires that "an agency with a clear law enforcement mandate such as the FBI . . . establish . . . a 'rational nexus' between its law enforcement duties and the document for which Exemption 7 is claimed." In other words, the FBI must establish that its investigative activities are "realistically based on a legitimate concern that federal laws have been or may be violated or that national security may be breached. " Thus the question is whether the records indicate that " the agency was gathering information with the good faith belief that the subject may violate or has violated federal law, or was merely monitoring the subject for purposes unrelated to enforcement of federal law." (Cita- tions omitted). Powell v. United States Dept. of Justice, 584 F.Supp. 1508, 1521-22 (N.D. Cal. 1984). Plaintiff urges that this test has not been passed here, particularly with respect to the Free Speech Movement. The undersigned finds this to be an extremely close question, and one of such broad significance that it is most appropriately resolved by the District Court Judge with the ultimate responsi- bility for this case. Accordingly, the undersigned will assume in the rulings below that the law enforcement nexus exists with respect to the Free Speech Move- ment investigation generally. If it does not, all the Exemption 7 claims would be overruled, except those covered concurrently by other exemptions. ---------------------------------------- Page Break ---------------------------------------- 89a Necessary to invoke FOIA Exemption (b) (7) (D) and Privacy Act Exemption (k) (5) which protect confidential sources is a finding of an express or implied assurance of confidentiality. Following Powell v. United States, 584 F.Supp. at 1528-1529, the Court will not find such an assurance from the mere fact that a source's identity is concealed by the FBI in the document, whether by use of a permanent or temporary source symbol number or otherwise. An express assurance of confidentiality will be found if it appears in the facet of the document. A conclusory statement in a declaration, unsupported by specific facts, that an express assurance was given will not be sufficient, as the Court cannot be sure that the declarants are basing their declarations on any- thing more than the fact that the identity is concealed in the document. Whether an implied assurance of confidentiality should be inferred will depend upon an analysis of the facts of each deletion as they appear on the face of the document or in additional facts supplied in the dec- larations. An example common in these documents is where an informant attended a small meeting of a political group in essentially an undercover capacity, pretending to be sympathetic to the group, and then informed on the group to the FBI. The Court would infer an implied assurance of confidentiality from such facts. (The Court notes that disclosure of the fact that a person had informed under these circum- stances would be embarrassing and an invasion of his or her privacy, even if not done for law enforcement purposes, exempt under (b) (6), unless outweighed by the public interest in disclosure. See Lamont v. Dept. of Justice, 475 F.Supp. 761, 779-782 (S.D.N.Y. 1979); Dunaway v. Webster, 519 F. Supp. 1059, 1071- ---------------------------------------- Page Break ---------------------------------------- 90a 1073 (N.D. Cal. 1981); Powell v. United States, 5784 F. Supp. at 1528. Even if a source was given an express or implied assurance of confidentiality, the source may no longer be confidential if his or her role as source has already been revealed. Powell v. United States, 584 F.Supp. at 1530. And information otherwise exempt pursuant to the privacy considerations addressed in Exemptions (b) (6) and (b) (7) (c) may no longer be exempt if it has already been revealed or if the subject is deceased. Id. at p. 1526. While the FBI is under no duty affirmatively to investigate these things, here, as in Powell, plaintiff provided to defendants, on June 27, 1986, lists of persons previously identified in FOIA releases, deceased persons, and previously revealed informants, with supporting documentation. Powell v. United States, 584 F.Supp. at 1528 teaches that defendants must consult such lists in indexing FOIA requests. If the name of a person on a list is nonetheless withheld, defendants must explain why. There are many instances in these documents where names on plaintiff's lists remained deleted, without any mention of the list, either to controvert plaintiff's facts or to explain why the deletion is proper irre- spective of those facts. (A few such examples will be pointed out where relevant below. Not all of the examples can be mentioned, however, without mooting a further showing by defendants or any appeal they may wish to take.) Exempt where specifically mentioned, plaintiff does not seek disclosure of the names or initials of Special Agents or support staff. Accordingly, in each in- stance below, except where specifically stated to the contrary, such deletions are upheld pursuant to Exemptions (b) (7) (C) and (b) (6). ---------------------------------------- Page Break ---------------------------------------- 91a The permanent source numbers for human sources are properly deleted in each instance below and plaintiff does not claim otherwise, except where the identity of the underlying source itself has been disclosed. In the latter instance there is no reason to withhold the permanent source number. The method used to assign these numbers-a geographic code followed by a number and a subject matter code-has already been disclosed. Defendant's argument that release of these numbers would reveal how many in- formants exist in a given geographic area is uncon- vincing, and even if true would not allow anyone to identify or avoid them. The same analysis applies to temporary source numbers or "T" numbers. These are used in numeri- cal order to conceal the sources within a given document, i.e. T1, T2 and T3, but the same numbers do not carry over from document to document, i.e. T1 in one document might be T6 or T12 in another. Plaintiff does not seek the T-numbers of confidential sources but does seek those of revealed sources. The possibility of learning useful information from the temporary numbers of a revealed source is remote. Defendant's argument that disclosure of the number of sources referred to in a particular document might reveal the "scope and depth" of the FBI's interest in a subject is unconvincing. Often there is a list of the temporary numbers and sources at the end of the document, and the items, even though redacted, can simply be counted. Temporary source numbers should be disclosed in the documents whenever the underlying source has been revealed. Plaintiff does not concede that permanent source numbers for technical sources, e.g. wiretaps, are pro- perly exempt. Plaintiff relies on Wilkinson v. FBI, ---------------------------------------- Page Break ---------------------------------------- 92a 633 F. Supp. 336 (C.D. Cal, 1986) where the Court found that the public interest in the FBI' use of technical sources outweighed the FBI's interest in secrecy. Defendants here invoke exemption (b) (2), claiming that disclosure of the numbers would risk circumvention of agency regulation, As noted above, the scheme for assigning these numbers is known. Even if it could be inferred from the release of a source number that the FBI had a given number of technical sources, perhaps wiretaps, in a certain city, defendants have not explained how this knowledge would help a wrongdoer avoid one of them. Permanent and temporary source numbers for technical sources shall be disclosed wherever they appear in the docu- ments. Plaintiff objects to the filing of in camera declarations by defendants, and asks that they be released, summarized or disregarded. This issue was addressed by the Ninth Circuit in Pollard v. FBI, 705 F.2d 1151 (9th Cir. 1983). In that case the District Court found that the public affidavit offered by the agency was insufficient to support the agency's claim of national security exemption (b) (l). Accordingly, the court conducted an in camera review of the, docu- ments, and allowed the government to submit further in camera affidavits to explain the relevance of the exemption claimed to the documents under review. On appeal, plaintiff argued, inter alia, that the use of nonpublic affidavits offended common law tradition, due process, and the FOIA The court disagreed, holding that an in camera review, including the use of nonpublic affidavits, is appropriate if the trial court has first determined that the public affidavits provide an inadequate basis for evaluating the exemptions claimed. Pollard, 705 F.2d at 1153-54. The court in ---------------------------------------- Page Break ---------------------------------------- 93a dicta emphasized that the trial court should make as complete a public record as possible before resorting to an in camera review and/or in camera affidavits, but clearly found that in camera affidavits were not per se improper. Id., at 1154; accord, Long v. IRS, 742F.2d 1173, 1184 (9th Cir. 1984). Here, Judge Patel has determined that the public affidavits are inadequate, and referred the matter for in camera review. Accordingly, the in camera declarations will be considered and will not be disclosed. We turn now to an analysis of the individual deletions. EXHIBIT B - FREE SPEECH MOVEMENT DOCU- MENTS Document 2 This document contains information received from sources to whom, defendant claims, express assurances of confidentiality were made. That claim is not supported on the fact of the document or by any facts provided. However, the circumstances do support an inference that implied assurances of confidentiality were provided. The information given was so detailed and known to such a limited group of people that disclosure of the infor- mation could reasonably be expected to reveal the identities of the sources. Unless these sources appear on plaintiffs lists of deceased or revealed sources, the deletions made at page 3, paragraphs 6 and 8 are proper. [Exemption (b) (7) (D).] These deletions are proper even if no law enforcement nexus exists as release would constitute a clearly unwarranted invasion of the personal privacy of the sources and of a tangential third party mentioned therein which outweighs the limited public interest in its disclosure. [Exemption (b) (6).] ---------------------------------------- Page Break ---------------------------------------- 94a The Court declines to release the in camera de- clarations made by defendants with respect to the deletions that had originally been made on pages 4, 5, and 7, or any others, as plaintiff requests. Document 27 The organizational affiliation and location of the source should be disclosed; the size of the organization, the nature of the information, and the passage of time make it unlikely that this would lead to disclosure of the source. Document 42 The organizational affiliation of the source in page 1, paragraph 1 could reasonably be expected to reveal the source due to the limited access to the detailed information provided. This source did ask for confidentiality. The (b) (7) (D) exemption is upheld. This source would also be exempt under (b) (6). The only justification for deletion of the names in the list of files to which copies of this information were routed, hereinafter referred to as the copy count, is privacy. [Exemption (b) (7) (C)]. Here, as is frequently the case below, it is well-know that the individuals in question engaged in activities which made it very likely that the FBI would take an investigative interest in them. Confirmation that the FBI did take such an interest adds little or nothing to whatever consequences the already-public knowledge of their activities may have. Deletions on page 2, paragraphs 2 and 5, are two of the few instances in which plaintiff does desire the identities of Special Agents for a particular reason. The reason advanced here does outweigh the agents' privacy interests. Exemption (b) (7) (E), law enforcement techniques, is claimed for the deletion on page 2, paragraph 4. The particular pretext used in the pretext telephone call ---------------------------------------- Page Break ---------------------------------------- 95a described here is personal to Mario Savio; the general category of pretext would leap to the mind of the most simpleminded investigator, to paraphrase Judge Peck- ham in Dunaway v. Webster, 519 F.Supp. at 1070. It shall be disclosed. On page 3, paragraph 2, the New York City Police Unit, but not the officer's name, should be disclosed. Due to the nature of the information and the passage of time, it is unlikely that the former would lead to the latter. The officer's name is exempt pursuant to (b) (7) (C) or (b) (6). Paragraph 4 should be disclosed. There is no privacy interest here since the names are mentioned elsewhere and the document itself recites that no information was located about them. Document 51 On page 1 the prefix to Wofsy's file number should be released. It is already public knowledge that he engaged in activity likely to bring about this type of investigation. The deletions on pages 6, 7 and 8 consist of detailed information that is not widely known and thus could reasonably be expected to identify the sources. The particular con- text and content here is such that an inference of an implied assurance of confidentiality y can be drawn. Unless these sources appear on plaintiff's lists of deceased or revealed sources, this information is exempt pursuant to (b) (1) or (b) (7) (D) or (b) (6). However, the deletions at pages 9 and 10 concern information that is generally known and not private, and so could not reasonably be expected to identify the source or impermissably invade the subject's privacy. Defendants have released some of this information as of November 2, 1987, after the briefing on the docu- ments selected for in camera review. It is not clear from defendants' submission whether they are claiming the second prong of exemption ---------------------------------------- Page Break ---------------------------------------- 96a (b) (7) (D) with regard to page 9, paragraph 1. As noted, the material could not reasonably be expected to identify the source and thus is not exempt under the first prong. The second prong protects material received from confidential sources, apparently without regard "to whether the material would identify the source, compiled in a criminal or national security investigation. This test is a more rigorous one than that required to find a law enforcement purpose to justify any (b) (7) claim. Powell V. United States, 584 F.Supp. at 1530. The information here does not appear to be compiled for the purpose of a criminal or legitimate national security investigation. Document 52 Some of the documentation provided by plaintiff in this case causes the Court to conclude that the source protected at page 1, paragraph 3 is one whose identity and role have already been disclosed. The (b) (7) (D) exemption is overruled. The names in the copy count deletions should be disclosed; the FBI's interest in these people is already evident, as is discussed above. The same is true of the name on page 3, paragraph 1. The privacy interest is espe- cially attenuated here since no information was located on this person. The names and addresses on page 2 are properly deleted pursuant to Exemption (b) (7) (D) or (b) (6) as an implied assurance of confidentiality y can be inferred from the circum- stances. Page 3, paragraph 4 protects a source, whose desire for confidentiality can be inferred as a matter of fact from the document. Exemptions (b) (7) (C) and (D), or (b) (5) are appropriate. Document 72 Paragraph 1 contains information that is detailed and not widely known and thus could reasonably be expected to identify the source. An ---------------------------------------- Page Break ---------------------------------------- 97a implied assurance of confidentiality can be inferred from the context. Unless the source appears on plaintiff's lists of deceased or revealed sources, the (b) (7) (D) exemption is well-taken. A (b) (6) exemp- tion would also be appropriate. Paragraphs 2 and 3 contain widely known information unlikely to identify the source. The privacy claim in paragraph 3 is not well-taken. While the release will reveal the FBI's investigative interest in a certain person, it will also reveal the innocuous reason for it. This information should be released. Document 75 The face of this document, obtained from a source, does not disclose the source or indicate that it was accessible to only a few persons, as defendants opine. Defendants must provide some facts to show that such is the case if this (b) (7) (D) exemption is to stand. The handwritten marginalia is properly exempted. Document 77 The date that is deleted here could disclose the source under the circumstances. The date and name are exempt. Document 92 The deletions here consist of information with regard to the activity of a group so small that disclosure could identify the source. An implied assurance of confidentiality can be inferred. Unless this source appears on plaintiff's lists of deceased or revealed sources, the (b) (7) (D) exemption will stand. The nature of the information also im- plicates the privacy interests of the source and the third persons mentioned. Their interests are not outweighed by the public interest here. Their names may remain deleted pursuant to exemptions (b) (7) (C) or (b) (6). Document 128 The confidential source's name and ---------------------------------------- Page Break ---------------------------------------- 98a position may be deleted. [Exemptions (b) (7) (D) or b) (6).] Due to the size of the source's company and the passage of time, however, it is unlikely that dis- closure of the company would identify the source. It should be disclosed. Document 129 This is the information provided by the source mentioned in Document 128. The source's identity should be adequately protected if the stamp on page 2 is covered. The rest of the memo could then be disclosed. A (b) (7) (D) second prong claim would not be well-taken. Documents 139 and 140 These deletions protect information with regard to the activity of a group so small that its disclosure could reasonably be expected to identify the source. It is apparent from the context that the source operated under at least an implied assurance of confidentiality. Unless the source appears on plaintiff's lists of deceased or revealed sources, the (b) (1) exemptions will stand. Document 150 Lines 1, 5 and 8 could reasonably be expected to disclose a confidential source and may be deleted unless the source appears on plaintiff's lists of deceased or revealed sources [Exemption (b) (1).] Lines 6 and 7, however, would not lead to the identity of the source and should be disclosed. The names in the copy count and the index disclose only the already evident fact of the FBI's investigative interest in the persons mentioned, as discussed above. These should be disclosed, except for the fifth name from the bottom. Document 151 The confidential source's name and title may remain deleted. [Exemptions (b) (7) (D) or (b) (6).] The source's organizational affiliation and location, however, would not disclose the source, due to the size of the organization, the passage of time and ---------------------------------------- Page Break ---------------------------------------- 99a the nature of the information, The remainder of the document details a particular activity that the source undertook which would identify the source. Document 161 The deletions detail various activities of small groups of people which would thus tend to identify the source. The context leads to an inference that the source operated with at least an implied assurance of confidentiality. The defendants state that the source was also given an express assurance of confidentiality, however, this does not appear on the document. Unless the source appears on plaintiffs lists of deceased or revealed sources, the deletions are proper. [Exemptions (b) (7) (D) or (b) (6).] Document 181 All of the deletions here, including the Special Agent named, are already publicly known and thus should be disclosed. This source appears on the list of revealed sources supplied by plaintiff to defendants in June of 1986, along with irrefutable supporting documentation in the form of a book he published describing his activities as an informant: I Lived Inside The Campus Revolution. The fact that the defendants claimed confidentiality for this source in October of 1986 raises a doubt about the care with which they processed this request, especially con- sidering the extent to which this source's activities have been revealed. The names in the copy count should also be disclosed since the fact of the FBI's investigative interest in them is self-evident, as discussed above. As of the November 2, 1987 repro- cessing, defendants continue to withhold the Special Agent's name without explaining why it should be, given that it is publicly known. Document 188 Defendants have made an adequate showing of the confidentiality of the source whose ---------------------------------------- Page Break ---------------------------------------- 100a identity is protected in this document, pursuant to exemption (b) (1). The redacted information could reasonably be expected to identify the source. Document 218, This source was given an express assurance of confidentiality on an earlier occasion, and is exempt pursuant to (b) (7) (D) or (b) (6). The deletions in pages 1 through 3 would tend to identify him. The deletion on page 4, paragraph 2, would not identify him and should be disclosed. Those on para- graph 4 would identify him. Document 256 These deletions protect a source reporting on the activity of a small group which thus would identify him or her. The context provides an inference of an implied assurance of confidentiality. Unless this source appears on plaintiff's lists of deceased or revealed sources, all of the deletions in this document are well-taken. [Exemptions (b) (7) (D) or (b) (6).] Documents 257 and 258 These deletions protect a source reporting on the activity of a small group which thus would identify him or her. The context provides an inference of an implied assurance of confidentiality. Unless this source appears on plain- tiff's lists of deceased or revealed sources, all of the deletions in these documents are well-taken, excep- tion that paragraph 2 on page 2 could be disclosed. [Exemptions (b) (7) (D) or (b) (6).] Document 267. The deletion of the name which appears in the heading of this document, and his or her position, is proper to protect his or her privacy interests, which would be impermissably com- promised by the content of the underlying document [Exemption (b) (6).] However, the deletions at lines 2 and 3 could be disclosed. The name of the confidential ---------------------------------------- Page Break ---------------------------------------- 101a source of the document, and his or her position, is properly deleted. [Exemptions (b) (7) (D) or (b) (6).1 Document 268 Although this document was obtained from the confidential source whose identity is protected above, due to the passage of time and the relatively wide accessibility of the document, it is unlikely that disclosure of the document would identify the source. The name and letterhead of the author of the document should remain deleted to protect his or her privacy interests, which are not outweighed by the public interest. However, again, due to the passage of time, it is unlikely that the content of the letter or of the attachment to it would identify the author. If a claim of the second prong of (b) (7) (D) is made, it is not well-taken. These should be discussed. Document 283 and 284 These documents contain information from a source about the activities of a group so small that disclosure could identify the source. It is also clear from the context that the source spoke with at least an implied assurance of confidentiality. Unless this source appears on plain- tiff's lists of deceased or revealed sources, the dele- tion is proper. Document 313 The name of the sender may pro- perly be deleted pursuant to Exemptions (b) (7) (C) or (b) (6) but the address could be disclosed with- out identifying the name. The name of the Special Agent recipient may likewise be deleted. Exemption (b) (7) (D) applies to non-federal law enforcement agencies if the agency was acting as a confidential source. Defendants' declarations essentially claim that all cooperation between non-federal and federal law enforcement agencies is confidential. Here, as elsewhere in these documents, the Court is not ---------------------------------------- Page Break ---------------------------------------- 102a convinced that non-federal law enforcement agencies would discontinue cooperating with the FBI were it known that they did so. To the contrary, it seems obvious that non-federal law enforcement agencies quite properly do cooperate with the FBI and vice versa. Furthermore, many of the non-federal law enforcement agencies deleted in these documents appear on plaintiff's list of disclosed sources, without controversion by defendants. Accordingly, the identi- ties of non-federal law enforcement agencies shall not be deemed to be confidential, unless a further factual showing is made. Document 321- The name and position of the Post Office employee who gave this information to the FBI is properly deleted. [Exemption (b) (7) (C) or (b) (6).] The name of the Post Office box holder shall be disclosed. Defendants do not dispute plaintiff's allegation that commercial Post Office box holders are not entitled to confidentiality. Since the name and the connection with the Free Speech Movement are not confidential, the further fact that the FBI took an interest in this person is self-evident and detracts no further from the privacy interests of the individual. Document 342 The subject of this document and his role are well-known and, with the exception of personal information, protection of his identity is unjustified. The source is paragraph 2 is not an undisclosed source and should be revealed. The other party mentioned in paragraph 3 and in the copy count is also well known and in addition is deceased. His name should be disclosed. (It was disclosed, on November 2, 1987, after the briefing on the documents selected for in camera review.) Both of these names ---------------------------------------- Page Break ---------------------------------------- 103a were on plaintiffs list of previously released names, provided to defendants in June, 1986. Document 352 The deletion in the copy count is a person well-known to have engaged in activities likely to bring him to the attention of the FBI and thus disclosure of his name in this context would detract no further from his privacy interests. Document 355 The name in the first deletion and the fact mentioned about him appear in other documentation submitted by plaintiff and thus should be disclosed here. Document 357 Plaintiff does not seek the names of commercial institutions which provided informa- tion to the FBI; the name of the source here may remain deleted. The information would disclose the source. The first two deletions on page 4 should be disclosed as the person in question is well-known. Document 368 The deletions in this document again rely on the inference, not shared by the Court, that non-federal law enforcement agencies would not wish it know that they cooperate with the FBI. Deletion is particularly unjustified for those on plaintiff's list of revealed sources. Unless a further factual showing can be made, these (b) (7) (D) deletions are not well-taken. Document 371 Because this person's activities with respect to the Free Speech Movement are well known, his file number, name and all of the infor- mation in this document, with the exception of paragraphs 2 and 3 on page 2 and the last paragraph on page 3, should be released. The deleted paragraphs invade the subject's privacy, which is not outweighed by the public interest. [Exemption (b) (7) (C) or (b) (6).] (The prefix of his file number was released on ---------------------------------------- Page Break ---------------------------------------- 104a November 2, 1987.) The name in the copy count should also be revealed. Document 373 The names, but not the positions, of law enforcement officers may remain deleted. The holder of the Post Office box mentioned in paragraphs 3 and 4 should be disclosed since, as discussed above, commercial Post Office box holders are not entitled to confidentiality. However, the handwritten note invades the privacy of a third party, which is not out- weighed by the public interest. [Exemption (b) (7) (c) or (b) (6).] Document 402 The name deleted in this docu- ment is only a first name, and a common one at that. Release would not identify the person, especially given the passage of time. It should be revealed. Document 408 This document reports on infor- mation provided by a source on an activity of a group so small that disclosure could reasonably be expected to identify the source. It is likewise clear from the context that the source spoke with at lease and implied assurance of confidentiality. Pursuant to Exemp- tions (b) (7) (D) or (b) (6), all of the deletions in this document are well-taken, with the exception of the names in the copy count. The activities of all of the people named in the copy count are well-known and their names would not provide a clue to the source. Document 414 The names in the copy count should be disclosed as they are disclosed elsewhere. It is clear that they engaged in activities likely to cause them to be of investigative interest to the FBI, and confirmation that they were in fact of investi- gative interest to the FBI discloses nothing more. (Some of the names were released on November 2, 1987.) The deletion of the names of the Special Agents from the body of the report is proper as their ---------------------------------------- Page Break ---------------------------------------- 105a privacy interests outweigh any public interest in their identity. The one exception to this is the name of an agent whose identity and activities in this context are already well-known. His name should be disclosed. Document 427 All of the deletions including, under the particular circumstances here, the copy count, could reasonably be expected to lead to the identity of this source. The context evidences that the source spoke under at least an implied assurance of confidentiality. Unless this source appears on plaintiff's lists of deceased and revealed sources, the deletions are well-taken. {Exemptions (b) (7) (D) and (b) (6).] Document 436 The names and file numbers of these confidential sources are properly deleted. How- ever, the rest of paragraph 1 could be disclosed with- out identifying these sources. The remainder of the document details activities among such a small group of persons that their disclosure could reasonably be expected to identify the source {Exemptions (b) (7) (D) or (b) (6).] The information is such that it would also impermissibly implicate the privacy interests of the third parties mentioned. Documents 454 and 455 The copy count includes names and file numbers of persons whose Free Speech Movement activities are well-known. They should be released. (Some were released on November 2, 1987.) Document 454 is the cover sheet to Document 455 which is a document received from a confidential source. Defendants state that this document could identify the source as it may not have been widely available. It seems likely that it was widely available, and the defendants must show that it was not, in order to avail themselves of this exemption. ---------------------------------------- Page Break ---------------------------------------- 106a Document 475 This is another document re- ceived from a source. This document was plainly intended for public presentation, and thus implicates no privacy interests. Further, it was apparently available to many persons, so that its disclosure would not identify the source. If defendants have information that the document in this format was not widely available they must present such information, or release the document. If the second prong of (b) (7) (D) is claimed, it is overruled; no criminal or national security investigation is implicated here. Document 495 This document contains detailed information that is not widely known, which could reasonably be expected to identify a source whose need for confidentiality is adequately established by defendants. There is no segregable portion of this information the release of which would be meaningful. [Exemption (b) (1), (b) (7) (D) and (b) (6).] Document 502 The subject of this document and his role in the Free Speech Movement is well-known; his identity should be released. Information in paragraph 2 is properly deleted as it would disclose a source who, it can be inferred from the context, would have spoken only with at least an implied assurance of confidentiality. [Exemptions (b) (7) (D) or (b) (6).] Paragraph 4 and the copy count contain deletions of a person who is deceased and thus should be disclosed. (The name was released on November 2, 1987.) Page 2, paragraph 1 should be disclosed. Paragraph 2 con- tains private information the release of which is not justified by public interest. The deletions in para- graphs 3 and 4 are properly taken as the information would identify the source, and the type of information leads to an inference that the source spoke with at least an implied assurance of confidentiality. [Exemp- ---------------------------------------- Page Break ---------------------------------------- 107a tions (b) (7) (D) or (b) (6).] On page 3, the file number and name of the subject, again, should be disclosed; the name of the Draft Board employee in question may remain deleted, but the number and location of the Draft Board should be disclosed. The first deletion in paragraph 2 unjustifiably invades the subject's legitimate privacy interests; the second deletion should be disclosed except for the last three words which also invade privacy interests. Document 514 This is a report from an informant on an activity, the disclosure of which could rea- sonably be expected to identify the informant. Defen- dants state that this informant spoke only with an express assurance of confidentiality. This does not appear on the document however, the context justi- fies and inference that the source had at least an implied assurance of confidentiality. Unless this source appears on plaintiff's lists of deceased and revealed sources, these deletions are properly taken. Document 525 The names in the copy count should all be disclosed. On page 2, the names are properly deleted, with the exception of the Special Agent named whose identity and role are public knowledge. In paragraph 3, the first deletion is not well-taken as the information protected is disclosed elsewhere. On page 3, paragraph 3, the person pro- tected is deceased. The agency protected is one known to have cooperated with the FBI, This infor- mation should be released. The deletion in paragraph 5 is not well-taken as it is public knowledge. The person protected in the deletion on page 4 is deceased and should be disclosed. Document 527 The first subject is deceased and his identity should be disclosed. (It has been, as of November 2, 1987.) The second subject is one whose ---------------------------------------- Page Break ---------------------------------------- 108a name does not appear elsewhere and thus is properly deleted to protect his privacy interests. The copy count should be disclosed. Document 543 The copy count should be dis- closed as the names are all mentioned in the body of the report and the FBI's investigative interest in them is apparent. Document 570 The copy count should be dis- closed as the names are all mentioned in the body of the report and the FBI's investigative interest in them is apparent. Document 571 The second Special Agent's name in paragraph 4 should be disclosed as should the name on page 2, paragraph 1. They are already publicly known. Document 618 The non-federal law enforcement agency should be disclosed for the reasons discussed above. The individual officer's name, however, is properly deleted. The Special Agent's name in the body of the report should be disclosed. Document 634 This document contains informa- tion on a small group activity which could identify the source. The context is adequate to justify an infer- ence of an implied assurance of confidentiality and defendants make an adequate showing that the source is alive and undisclosed. All of the deletions are properly taken. [Exemption (b) (l).] Document 636 Defendants state that the first source protected in these deletions was given an express assurance of confidentiality. This does not appear on the face of the document or from the context. A further showing as to this is necessary. Even if the source is properly protected it appears that many persons would have access to the infor- mation given by the source and thus the information ---------------------------------------- Page Break ---------------------------------------- 109a could be disclosed without identifying the source. If a (b) (7) (D) second prong claim is being made, it is overruled. The second source mentioned in the document may remain deleted, [Exemptions (b) (7) (C) or (b) (6),] but his or her agency should be disclosed as it is one both known to have cooperated with the FBI and one which would be unlikely to make a secret of its cooperation with the FBI, as discussed above. Documents 644 and 645 These documents contain information provided by a source who explicitly asked to be kept confidential. All of the deletions are proper as they could reasonably be expected to identify the source. There are no meaningfully segregable por- tions. All of these deletions are properly taken. [Exemptions (b) (7) (D) or (b) (6).] Document 753 The copy count should be disclosed as the names and the reasons for their interest to the FBI are disclosed elsewhere. Document 759 and 760 There is no indication that the person who identity is protected by these deletions wished to have his views kept confidential. The views are not particularly personal, and the public interest outweighs whatever limited privacy interests that this person may have. The third party mentioned tangentially in Document 760 is publicly known to have played the role mentioned here and thus also need not be protected. EXHIBIT C - JAMES RECTOR FILE Document 8 The paragraph of text on the cover page should be released. The defendants state that this paragraph refers to information given by a non- federal law enforcement agency but this fact, if true, does not appear in the text. Furthermore, for the reasons discussed above it does not appear that ---------------------------------------- Page Break ---------------------------------------- 110a knowledge of the cooperation of federal and non- federal law enforcement agencies would be deleteri- ous to either. The field office deleted from the copy count should be disclosed. As will be noted below, the witness whose identity might be revealed by the disclosure of this. field office should be disclosed in any event. The handwritten word on the lower left hand corner should be disclosed since the paragraph of text is to be disclosed. The Special Agents' names at the top and at the bottom may be deleted here as elsewhere. The person whose identity is concealed by the deletions on page 10 should be revealed. There is no indication that s/he spoke pursuant to either an express or implied assurance of confidentiality and his or her position is such that it seems likely that his or her issuing of such information would be expected. Again, the name ordered released on page 10 should also be released on page 11. Furthermore, the name of the doctor in paragraphs 2, 3 and 4 should be disclosed. Other documents indicate that his role in this incident is already a matter of public knowledge. The identity and role of the person whose identity is concealed by the deletions on page 12 and 13 is also a matter of public record and there is no indication that he or she spoke with an express or implied assurance of confidentiality. The information given is not particularly private. The person whose identity is protected on pages 14 through 16 was a witness at trial, according to information provided by plaintiff on July 20, 1987. Defendants make no mention of this fact, nor any showing that his identity should be protected in spite of it. There is no indication that he spoke with either ---------------------------------------- Page Break ---------------------------------------- 111a an express or implied assurance of confidentiality. The deletions are improper. Powell v. United States, 584 F. Supp. at 1529. The name of the policy officer in question may be deleted on page 17 but the agency should be disclosed for the reasons discussed above. Paragraph 3, with the exception of the officer's name, should be released. Paragraph 4 may remain exempt in the interest of the privacy of the person mentioned. None of the exemptions claimed on pages 18 through 20 is well-taken, with the exception of the name of the Special Agent. The witness whose identity is protected here testified at trial and his role in the incidents in question is publicly known. The third parties that he mentions on page 20 also testified. There is no reason to believe that any of these people would wish their identities or roles to be kept confidential. Again, defendants do not even mention that these people testified, much less provide a particular showing that this information should be protected in spite of their testimony. Document 17 None of the deletions on the cover page through page 5 are well-taken, with the ex- ception of the Special Agents' names and initials. The person whose identity is protected here testified in court with regard to this incident. There is no indica- tion that he spoke with either an express or implied assurance of confidentiality or that he would wish his identity or role in the incidents to be kept confiden- tial. None of the information impinges upon his privacy interests with the exception of the deletions on page 6 which are exempt. Document 52 The name of the particular Selec- tive Service employee who provided the information may remain deleted on cover page A. With respect to the rest, of the document, many of the persons whose ---------------------------------------- Page Break ---------------------------------------- 112a identities are protected by the deletions were trial witnesses or persons whose identities and roles in the events in question were otherwise publicly known. For the reasons discussed above, many of them should be released. Specifically, on page 1 the first person mentioned in the synopsis need not be released; however, the second and third persons should be released, along with the text about the third person. The deletion in the last line of that paragraph may stand. On page 2, the person mentioned in paragraph la may remain deleted, 1b should be disclosed and 1c may remain deleted. On page 3, the person in paragraph d should be disclosed as should the person in paragraph e. The person in paragraph f may remain deleted. The person in paragraph g should be disclosed. The first person mentioned in paragraph h should be disclosed; the second may remain deleted. The person men- tioned on page 4 may remain protected. On page 5, the person named at. la may be protected, 1b should be disclosed, 1c may remain protected, and Id should be disclosed as should the paragraphs of text following ld. The name. designated 1h, however, may remain deleted from this paragraph. 1e should be disclosed, 1f is exempt, and 1g should be disclosed. The Special Agent in paragraph 3 may remain deleted. The deletions on pages 6, 7 and 8 may stand. The Court was unable to find the person interviewed at pages 7 and 8 in any of the documentation of witnesses who testified or who were known to have observed the events in question. However, if defendant is aware that this person's role was known then his name here and elsewhere should also be disclosed. Absent such revelation, it can be inferred that this person received ---------------------------------------- Page Break ---------------------------------------- 113a an implied assurance of confidentiality since he was providing information in the course of a criminal investigation about criminal activities. Powell v. United States, 584 F. Supp. at 1529. Pages 9 through 18 contain information from various persons, all of whom testified. All of these deletions should be disclosed with the exception, as usual, of the Special Agents' names and initials. The deletions on page 19 should be disclosed. The deletion on page 20, para- graph 1 may stand. The remainder of the deletions on that page should be disclosed. As to page 21, the fourth name and information about him should be disclosed. The remainder of the information is pro- perly deleted in the interests of the privacy of the persons mentioned. Document 61 The (b) (7) (C) exemption claim on page 1 is well taken. The (b) (7) (D) information on the first and second pages should be disclosed as the person mentioned here was not interviewed and did not become a source. Disclosure of the name on these two pages would not lead to identification of the person named on pages 3 and 4 who was interviewed and may be protected as a confidential source. Document 252 through 397 The deletions on these pages are well-taken. The privacy interests of third persons which would be impinged by release of these documents outweighs the somewhat attenuated public interest in their disclosure. Document 398 The deletions in this document protect the identity of a person who stated that he was willing to testify. Accordingly, it does not appear that he desired that his interview remain confidential. Nothing in the report impinges upon his privacy interest with the exception of the information on ---------------------------------------- Page Break ---------------------------------------- 114a cover page A, the last line of page l, and lines 7-10 on page 6. Document 405 and 406 The deletions here are properly exempt. Release of the information would unjustifiably impinge upon the privacy interests of third parties mentioned with no correspondingly weighty public interest. Document 408 The first person mentioned in the synopsis on page 1 may be protected. The second, third and fourth persons mentioned should be dis- closed. The information in the last two lines of the synopsis is exempt for reasons of the privacy of a third person mentioned. The first deletion on page 3 is proper, the second is not. The deletion on page 5 may stand. The deletion on page 6, paragraphs 1, 2 and the first three lines of paragraph 3 should be disclosed. The person whose identity is protected here appeared voluntarily at an FBI office to give information. There is no indication that s/he did so with any expectation of confidentiality. The "third person mentioned in paragraph 3, lines 6 through 12, may remain exempt in the interest of his privacy. The deletions in paragraph 4 are not well-taken. The deletions on pages 7,8 and 9 may stand in the interest of the privacy of third persons mentioned, which is not outweighed by the public interest. The deletion on page 10, paragraph 1 should be disclosed; paragraph 2 need not be. On page 11, the information at 111 may remain deleted in the interest of the privacy of the person mentioned, which is not outweighed by the public interest. The name deleted in paragraph IV, subparagraph 1, should be disclosed as this person testified in court and no reason is advanced to protect his identity in spite of his testimony. The name of the person protected on page ---------------------------------------- Page Break ---------------------------------------- 115a 12 may remain deleted as the Court was unable to find any indication that he testified or that his role in the events was known. The person whose identity is protected on pages 13 through 16 testified and did not appear to desire confidentiality. A third person mentioned on page 14, paragraph 2, lines 3 through 5, may be protected. He does not appear to be mentioned elsewhere, and his privacy interests are not out- weighed by the minimal public interest in his identity. EXHIBIT D - MARGUERITE HIGGINS Document 22 Page 1 The Special Agent's name may be deleted here, as throughout except where specifically mentioned. The alias in the second deletion has been released elsewhere and should be released. The third deletion is properly taken in that release would disclose intelligence capability. [Exemption (b) (1)]. Page 2 The temporary source symbol numbers should be released where the identity of the source has been disclosed. The deletions taken in the first full paragraph pursuant to Exemption (b) (1) are overruled, unless some further showing can be made. The "source" and "intelligence capability" demon- strated here are self-evident. The (b) (1) deletions in the second full paragraph are well-taken. Page 3 The temporary source symbol number here should be released, if the underlying source has been. Pages 5 and 6 Plaintiff does not seek the identity of agencies of this type. The T-numbers here should be disclosed if the underlying source has been. Page 17 The privacy interests of most of the persons mentioned here would be impinged by release ---------------------------------------- Page Break ---------------------------------------- 116a of this information, and the public interest does not outweigh this. The few exceptions are those whose role in the events. in question is known. Thus, the fourth person on this page should be disclosed, along with the first person on page 18. The first five words of paragraph 4 on page 18 should be disclosed. Page 19 The deletions in. paragraph 2 are well- taken in the interests of the privacy of a third person mentioned, not outweighed by public interest. The last alias should be released as disclosed elsewhere. Page 21 Lines 4 through 6,9 and 10 of paragraph 1 contain Special Agent names which may be protected. The remaining deletions in this paragraph are based on exemption (b) (1). However, the only "intelligence capability" they reveal is self-evident. They should be disclosed, unless some further showing can be made. The deletions in paragraph 3 are well taken in the interests of the privacy of the persons mentioned, not outweighed by the public interest. Paragraphs 4 and 5 contain no information that is not disclosed else- where. The (b) (5) exemption claim raised by the Air Force here and on page 22 is frivolous. The document contains no "advice, opinions or suggestions" and does not reveal any deliberative process. The infor- mation should be disclosed. Page 22 The deletions m paragraph 1 should be disclosed as the information here is discussed else- where in released. documents. The deletions in para- graph 2 are proper in the interests of protecting the source's confidentiality. The context of the interview provides an inference of an implied assurance of confidentiality. [Exemption (b) (7) (D) or (b) (6).] The first informant on the list beginning on this page should be disclosed for reasons discussed above; the ---------------------------------------- Page Break ---------------------------------------- 117a second is properly exempt pursuant to exemption (b) (l). Page 23 The T-numbers should be revealed here for the reasons discussed above. Page 24 The interviewee and investigative sub- ject mentioned here may be protected in the interests of their privacy, which is not outweighed by the public interest. Page 25 The identity and source status of the person protected in paragraphs 1 and 2 is disclosed elsewhere and should be disclosed here. The person mentioned in paragraph 3 is likewise identified in the same context elsewhere, is deceased and thus should be disclosed. Document 52 The first deletion on page 1, the alias, is disclosed elsewhere and should be disclosed, The deletions in paragraph 1 should be disclosed for reasons discussed above. Given the nature of the information in paragraph 2, the passage of time, and the deaths of Marguerite Higgins and the other per- son mentioned, it seems extraordinarily unlikely that release of this information would allow anyone to discern the identity of the source of the information. Unless some further showing can be made, this information should be released. The comments above apply as to page 2 as well. The intelligence gathering method mentioned here is self- evident and can thus safely be disclosed, unless some further showing can be made. EXHIBIT E - CLARK KERR Document 2 The deletions on page 2 attempt to conceal an incident which, as plaintiff correctly points out, is revealed extensively elsewhere. The only further fact that appears here is confirmation ---------------------------------------- Page Break ---------------------------------------- 118a that the FBI investigated the incident. However, the nature of the incident is such that it is self-evident that the FBI would take an interest in it and no further invasion of privacy appears from confirmation that it did. Defendants" declarant Llewelyn at para- graph 242 states that information is released if the subject is obviously known to be the subject of investigation. That is certainly the case here. This information should be released here and elsewhere. Document 27. The prefix of the file number here can be released, and the file number as a whole should be released if in fact it is Kagel's. The FBI's interest in him and the reasons for it are obvious from other documents, and nothing further would be revealed by this release. Document 33 The deletion at page 1 has been rescinded by the CIA. The justification for its prior withholding is not apparent. The information on page 2 should be revealed for the reasons discussed above in connection with document 2. Document 56 The Court finds no "rational nexus" between this particular document and the law enforcement duties of the FBI. Considering the in- formation-r lack thereof-developed about Dr. Kerr's affiliation with subversive organizations in the FBI's 1953 applicant suitability investigations (see, E 133), the kind of "information" presented in this document (see especially paragraph 4, lines 4-8) does not indicate "good faith belief that the subject may violate or has violated federal law." This is especially true since the document post-dates Yates v. United States, 354 U.S. 298 (1957) which estab- lished that the Smith Act and analogous laws allowed prosecution only of active members of the Communist Party with the specific intent to advocate the forcible ---------------------------------------- Page Break ---------------------------------------- 119a overthrow of the United States Government. See, Lament v. Dept. of Justice, 475 F. Supp. at 774. Defendants do not controvert plaintiff's allegation that no applicant suitability investigation was under- way in 1958 to justify compilation of this information. Rather, its purpose is expressed in related Docu- ment 134. "merely for [the Bureau's] information and in the event that the Bureau may receive some inquiry concerning Dr. Kerr, who at best is a highly controversial figure in California education." Ac- cordingly, the (k) (5), (j) (2) and (b) (7) exemptions are not well-taken. Although not claimed, the Court has considered Exemption (b) (6) and finds that the high degree of public interest in this document outweighs the privacy interests of the individuals mentioned, especially given their public positions. Furthermore, if the confidential source of this information is deceased or already disclosed, as may be the case, the information would not be exempt even if a law enforcement nexus existed. Document 65 There is no indication that the person whose name is deleted on page 1 desired or was promised confidentiality. In fact there are indications to the contrary. Defendants argue an implied as- surance of confidentiality from the nature of the information. However, this would certainly be out- weighed by an express statement that confidentiality was not desired. Furthermore, the person mentioned here is disclosed in documents provided by plaintiff. The person mentioned on page 2 at line 4 should be disclosed. The FBI's investigative interest in the person mentioned at lines 5 through 6 is apparent from other documents and the name should be disclosed here. As to line 7, the fact that the FBI is attempting to interview a certain person does not ---------------------------------------- Page Break ---------------------------------------- 120a qualify that person as a confidential source; the name should be disclosed. Document 67 Defendants claim that this document recites that the supporting officer states that the source here needed confidentiality. However, the document does not support this claim. The name on pages 1 and 2 should be disclosed. As plaintiff states, there is no showing that the source in the last deletion on page 2 was an applicant suitability inter- viewee as defendants claim. A further showing would be needed to justify this deletion. Documents 69, 70, 71 and 73 The information de- leted here was fully disclosed in earlier FOLA re- leases. In fact plaintiff cited unredacted copies of some of these very documents to the FBI in June, 1986, in support of his inclusion of Mr. Combs in his list of disclosed sources. Although defendants had agreed to reprocess the documents in light of plain- tiff's showing, these redactions were still claimed in October, 1986. Plaintiff pointed this out again in his second declaration in support of his motion for summary judgment, filed February 23, 1987. Still defendants continued to claim these exemptions in the documents submitted for in camera review on May 19, 1987. Finally, on November 2, 1987, Documents 71 and 73, although still not documents 69 and 70, were released. Defendants' only explanation is that of "inevitable processing inconsistencies." These cir- cumstances raise serious doubt about the care and good faith with which defendants have processed these requests. Document 72. It may be, as plaintiff argues, that there was no legitimate law enforcement or applicant suitability purpose to the information protected here. However, the deleted source volunteered his infor- ---------------------------------------- Page Break ---------------------------------------- 121a mation to the FBI and asked for confidentiality in the apparent belief that his information did have law enforcement implications. That he may have been wrong should not necessarily result in disclosures that would be embarrassing to him. This source is not on any of plaintiffs lists of deceased or revealed sources. The information that would lead to his identity should be concealed pursuant to exemption (b) (6), if not (b) (7) (C) or (D). However, the person mentioned on page 1, paragraph 1, lines 1 and 2, and paragraph 3, line 4, should be disclosed. Further, the second deletion at page 2, line 5, could safely be disclosed. The last sentence on page 4, continuing to page 5 should be disclosed, exclusive of the name. The last paragraph, line 1, second deletion, should be dis- closed. Document 80 The deletion here protects the identity of a person who gave a certain letter to the FBI. Defendants claim a Privacy Act (k) (5) exemp- tion even though the letter was received after the last background check on Dr. Kerr was completed. De- fendants explain that volunteered information about Dr. Kerr was placed in his existing applicant suitability files. Defendants' filing system, however, does not convert volunteered information into infor- mation gathered by the FBI solely for the purpose of an applicant investigation. Disclosure of the fact that the source here gave the letter in question to the FBI might embarrass the source. Especially given the source's public position, this consideration is out- weighed by the public interest. It should be disclosed. Document 87 This document likewise cannot be converted to a (k) (5) exempt document by being placed in an applicant suitability file. The Court does not concur in defendants' view that the face of the ---------------------------------------- Page Break ---------------------------------------- 122a document implies a desire for confidentiality. The name deleted here should be released. Document 89 This document is the same as Document 141 and will be discussed below. Document 90 This deletion properly protects a confidential intelligence source and method. Document 127 For reasons discussed above, the deletions on this page, with the exception of the Special Agent's name, the T-number and the com- mercial institution name, are not properly taken. On page 2, the name and identification of a source who asked for confidentiality and the permanent source symbol number of a second source are properly deleted. The last two sentences, however, are too general and too old to tend to identify a source. Some documents submitted by plaintiffs are relevant on this point. Document 133 The temporary source symbol number on pages 1 and 2 need not be disclosed. Plaintiff does not contest the deletions on pages 5 through 8a, and 10 through 13. The deletion on page 8a, paragraph 4, should be disclosed for the reasons discussed above, with the exception of the name and address in the last two lines of the deletion. The source in paragraph 5 need not be disclosed. Plaintiff does not seek the names of financial institutions who cooperated with the FBI. Page 9, paragraphs 1,2, 3, and 7 should be disclosed for reasons discussed above. The name and address of the third party appearing on page 9a, paragraph 1, not released elsewhere, may be deleted. The rest should be disclosed. Paragraph 2, lines 3 and 4 should be dis- closed for reasons discussed above. Lines 5 through 6 are properly deleted as revelatory of a confidential intelligence source or method. Lines 6 through 9 are ---------------------------------------- Page Break ---------------------------------------- 123a properly exempt as impinging on the privacy in- terests of a tangential third party. It is not at all apparent how the deleted information in paragraph 3 would disclose an intelligence source or method. Unless a further showing can be made, it should be disclosed. The second and third names in the paragraph, however, may remain deleted for reasons of privacy. Paragraph 5, lines 1 through 3 should be disclosed for reasons discussed above. Lines 4 through 7 contain deletions for which exemp- tion (b) (1) is claimed. It is unclear how this infor- mation would disclose an intelligence source or method. The information could have been obtained from many sources by several methods. The particu- lar method mentioned in the declaration is an obvious one. Absent a further showing, this information should be disclosed. One of the temporary source symbol numbers on page 14 should be disclosed. As long as the identity of a source is disclosed, there would appear to be no reason not to disclose its temporary number. The remaining exemptions on that page are well-taken. The deletions at page 15 are not well-taken for rea- sons discussed above. Document 134 This document is related to Docu- ment E 56, and the analysis and outcome is the same. Document 137 The source here earlier requested and was given an express assurance of confidentiality. The deleted information would identify this source. While there may not be a law enforcement purpose for the information, disclosure of the source's role would be embarrassing. Since the source is tangential, public interest does not outweigh his privacy and a (b) (6) exemption is proper. ---------------------------------------- Page Break ---------------------------------------- 124a Document 138 The first source mentioned here should be disclosed for reasons discussed above. The name in the heading should be disclosed as it is disclosed elsewhere. The facts disclosed about this person are well known and it is self-evident that these facts would have instigated FBI interest. Thus, the further information that these facts did instigate FBI interest involves no additional invasion of privacy. The third source should be disclosed as the informat- ion was given in sworn testimony and thus was not intended to be confidential. Documents 140 and 141 Release of Document 141 (aka Document 89) would reveal the source of that document, who is also protected in Document 140. However, defendants do not claim a law enforcement purpose for this collection of information. Defen- dants' (k) (5) claim is not applicable since the informa- tion was received after the last background check on Dr. Kerr. Plaintiff's documents indicate that the role of this source is well known. Thus, while this source might be embarrassed at disclosure of the particular activity he engaged in this instance, because the information here is relatively significant to the public interest, on balance the information should be released. Document 183. Defendants' claims with regard to the source on page 1 are extremely puzzling and raise further doubts about the care and good faith with which these requests were processed. Defendants initially claimed that this source desired confidential- ity. They then conceded that their documents specifically reflected that the source stated he did not desire confidentiality. Then, finally, in defendants' reply to plaintiffs "counter-Vaughn index," they revert to claiming that this source did desire ---------------------------------------- Page Break ---------------------------------------- 125a confidentiality. Defendants further claimed that identification of this source would lead to identifica- tion of others within the document. The claim is specious as there is no relation between this source and the others in the document. This source should be revealed. The source deleted in paragraph 2 provided positive information about Dr. Kerr. This does not lead to an inference that he desired confidentiality. The deleted source at page 2 should be revealed for the same reason. The source at pages 3 through 5 should be disclosed for reasons discussed above. The fact that the source at page 6 gave positive information leads to an inference that he did not desire confidentiality. His name should be disclosed. Document 187 The deletion of page 1, paragraph 3 properly protects the identity of an applicant suitability source who requested confidentiality. The deletion at page 2, line 1 is properly taken. The source at line 9 should be revealed. Defendants' claim, in their "Justifications" filed May 19, 1987, is that the release provided by plaintiff for the informa- tion in paragraph 2 was too old to be accepted by the IRS. Plaintiff responds that the release was timely when provided but became too old only because the FBI delayed in providing it to the IRS. Defendants do not reply to this claim. The information should be released. This tactic. on defendants' part provides further doubt as to the good faith with which they processed these claims.* ___________________(footnotes) * The Court notes that in their summary judgment pleadings, the defendants argued that the reason for with- holding tax information was that plaintiff did not supply a release specific to tax information. Plaintiff did not dispute ---------------------------------------- Page Break ---------------------------------------- 126a Document 188 Again, the positive sentiments expressed by the informants on page 3, paragraphs 4 and 5 and page 4, paragraphs 1 and 2 lead to an in- ference that they did not desire confidentiality. In addition, one of them is disclosed elsewhere. The deletions on page 4, paragraph 3, page 5 and page 6, paragraph 2 are not well-taken for reasons discussed above. The deletion on page 6, paragraph 5 is properly taken. The date in paragraph 6 may remain deleted. The first four deletions on page 7 protect a source who does not appear to have expected confidentiality, and so should be revealed. Since the only claim with regard to the last deletion is that it would disclose the source of the story, it should also be disclosed. The first deletion on page 8 is properly taken in the interest of the privacy of a tangential third party. Paragraphs 2 and 3 properly protect the identity of a source who requested confidentiality, as does page 9, paragraph 1. Page 9, paragraph 2 should be disclosed. The source in paragraph 3 may be protected. The nature of the information gives rise to an implied assurance of confidentiality. Defendant further ar- gues here, as elsewhere, that an implied assurance of confidentiality should be inferred from the fact that a source had access to information few others had. This claim makes no sense if the information given did not make use of such restricted access to infor- mation. ___________________(footnotes) that, but responded that an agency regulation was not suf- ficient to trigger exemption (b) (3). Apparently this argument has been abandoned by defendants. ---------------------------------------- Page Break ---------------------------------------- 127a Document 227 The title and deleted paragraph on the cover page should be disclosed for reasons dis- cussed above. Page 2, paragraphs 2,3 and 4 need not be disclosed; plaintiff does not seek the names of finan- cial institutions or temporary source numbers. Para- graph 5 contains a proper deletion for a permanent source symbol number. However, the remainder of the information presented is too old and too general to identify the source. Documents presented by plaintiff are relevant here. This information should be dis- closed. Page 3, paragraphs 3,4 and 5 properly protect the privacy interest of third parties who are tangential to plaintiff's interests. Document 239 The deletions here are properly taken, [Exemption (b) (1)], Plaintiff's concern. that the documents were classified after the date sched- uled for their release is ill-placed. Document 244 Again, plaintiff's concern that the document was classified after its release date is ill- placed. However, the deletion does not disclose to the Court any information regarding an intelligence method, Unless a further showing can be made, it should be released. EXHIBIT F - COINTELPRO Document 64 Defendants claim that this entire document is exempt as providing information about intelligence analysis, sources and methods. The Court finds that much of Part I is in the nature of an essay on the political movement in question. It draws on public sources such as books, newspapers, current events and the views of well-known philosophers. It does not appear to disclose any intelligence sources or methods. The opinions expressed by the author do not appear to correlate to any particular actions, ---------------------------------------- Page Break ---------------------------------------- 128a interests or methods. The method of analysis used is not particularly distinctive. One might expect to read an essay such as this in a magazine. Accordingly, the Court has determined that certain portions of Part I, can safely be released: the cover page; paragraphs 1 and 2 of the Introduction; the Table of Contents, exclusive of the list of countries, the cover page of Part I; page 1 through paragraph 1 of page 4; page 5, paragraph 2 through page 7, paragraph 2, exclusive of the footnote; page 8, paragraph 3 (exclusive of the footnote) through page 9, paragraph 2; page 10, paragraph 2 through page 11; page 12, paragraph 2; page 13, paragraphs 2 and 3; page 14, paragraph 3 through page 15, paragraph 2, exclusive of the footnote. The names of government agents and identifying numbers are properly deleted. Part II of this document contains specific informa- tion with regard to foreign groups and individuals which could well reveal intelligence sources and interests. EXHIBIT H - MAX SCHERR Document 2 Plaintiff has established that the person mentioned on page 1 and the information about him or her has been released elsewhere. Absent an additional showing it appears that nothing new would be disclosed by release of the information here, with the exception of the last sentence of paragraph 2 which may properly remain deleted as tending to identify an intelligence source. Document 6 The temporary source symbol num- bers on page 1 need not be released. The information in paragraph 1 is disclosed elsewhere and should be disclosed here, unless a further showing can be made. ---------------------------------------- Page Break ---------------------------------------- 129a Paragraphs 2 through 4 are properly deleted to protect a confidential source. The deletions on page 2, paragraph 1 are also proper to protect a confidential source. However, the name and address contained herein could be disclosed. The information in paragraphs 2 and 4 is well-known and its release would not disclose the source. Paragraphs 3 and 5 may remain deleted. Paragraphs 3 and 5 may remain deleted. Paragraphs 6 and 7 should be dis- closed, with the exception of the name of a third party therein, as it is information discussed elsewhere that would not identify the source. The information deleted from page 3, paragraphs 1, 2, 4 and 5, except the source in number 5, should be disclosed, for the same reasons. The deletion on page 4, paragraph 2 is proper. The identities of the T-number sources are properly protected. Much of the information that the Court orders disclosed above is addressed in the declaration of Sherry Davis. She is concerned that disclosure of this information would disclose a particular source and characteristics thereof. However, a reading of the deleted information does not suggest to the Court that this source or its characteristics would be implicated by release of the information. Because these are (b) (1) claims, if further information is available to explicate this claim, the Court will receive it. EXHIBIT J - CACTUS' PROGRAM Documents 2 and 3 Virtually all of both of these documents was originally withheld by the CIA. On October 27, 1986, portions of the documents were disclosed, indicating that CACTUS was cryptonym ---------------------------------------- Page Break ---------------------------------------- 130a for use in teletype communications between FBI and the CIA. The CIA still claimed, however, that further release would reveal a "CIA administrative methodol- ogy used to restrict the flow of sensitive information . . . still utilized at the present time." Dube Declara- tion, October 28,1986, paragraph 38 On September 1, 1987, however, the CIA further revealed the subject matter that should be denoted "CACTUS," and that use of the cryptonym would facilitate prompt action on the communication. With that release, most of the information in the docu- ments was revealed, and it became apparent that no "administrative methodology" was mentioned other than the use of cryptonyms and teletypes, both of which were already apparent from the 1986 dis- closure. This chair of events raises still more doubt about the care and good faith with which plaintiff's FOIA requests were processed. The remaining deletions protect only examples of the types of teletypes that should be designated CACTUS, and names of government agents. These are properly deleted since they would either disclose particular matters of intelligence interest to the CIA or invade the privacy of third persons mentioned who are well-known and are tangential to plaintiffs in- quiry, or both. [Exemptions (b) (l), (b) (3) and (b) (6).] ---------------------------------------- Page Break ---------------------------------------- 131a The Magistrate recommends that the findings above be adopted, along with such further findings as are necessary to resolve the issues in dispute. Respectfully submitted, Dated: [Feb. 3, 1988] /s/ Claudia Wilken CLAUDIA WILKEN United States Magistrate ---------------------------------------- Page Break ---------------------------------------- 132a APPENDIX D NOT FOR PUBLICATION UNTIED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 91-16538 D.C. No. CV-85-01709-MHP SETH ROSENFELD, PLAINTIFF-APPELLEE v. UNITED STATES DEPARTMENT OF JUSTICE, THE FEDERAL BUREAU OF INVESTIGATION, DEFENDANTS- APPELLANTS [FIELD AUG. 24, 1995] ORDER BEFORE: SCHROEDER, NORRIS AND BRUNETTE, Circuit Judges. The panel has voted to deny the petition for re- hearing and to reject the suggestion for a rehearing en banc. The full court has been advised of the suggestion for en banc rehearing, and no judge of the court has requested a vote on the suggestion for rehearing en banc. Fed. R. App. P. 35(b). The petition for rehearing is denied and the suggestion for a rehearing en banc is rejected. ---------------------------------------- Page Break ---------------------------------------- 133a APPENDIX E Statutory Provision 552. Public information; agency rules, opin- ions, orders, records, and proceedings (a) Each agency shall make available to the public information as follows: * * * * * (3) Except with respect to the records made available under paragraphs (1) and (2) of this sub- section, each agency, upon any request for records which (A) reasonably describes such records and (B) is made in accordance with published rules stating the time, place, fees (if any), and procedures to be followed, shall make the records promptly available to any person. * * * * * [4](B) On complaint, the district court of. the United States in the district in which the complain- ant resides, or has his principal place of business, or in which the agency records are situated, or in the District of Columbia, has jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant. In such a case the court shall determine the matter de novo, and may examine the contents of such agency records in camera to determine whether such records or any part thereof shall be withheld under any of the exemptions set forth in subsection (b) of this section, and the burden is on the agency to sustain its action. ---------------------------------------- Page Break ---------------------------------------- 134a * * * * * (b) This section does not apply to matters that are- * * * * * (7) records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or infor- mation (A) could reasonably be expected to interfere with enforcement proceedings, (B) would deprive a person of a right to a fair trial or an impartial adjudication, (C) could reasonably be expected to constitute an unwarranted invasion of personal privacy, (D) could reasonably be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source, (E) would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law, or (F) could reasonably be expected to endanger the life or physical safety of any individual; * * * * * Any reasonable segregable portion of a record shall be provided to any person requesting such record after ---------------------------------------- Page Break ---------------------------------------- 135a deletion of the portions which are exempt under this subsection.