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Keeney v. Federal Bureau of Investigation

decided: September 3, 1980.

STEVEN HARRIS KEENEY, PLAINTIFF-APPELLEE,
v.
FEDERAL BUREAU OF INVESTIGATION, CLARENCE M. KELLEY, DIRECTOR, FEDERAL BUREAU OF INVESTIGATION, UNITED STATES DEPARTMENT OF JUSTICE, AND EDWARD H. LEVI, ATTORNEY GENERAL OF THE UNITED STATES, DEFENDANTS-APPELLANTS



Appeal from a judgment of the United States District Court for the District of Connecticut, T. Emmet Clarie, Chief Judge, ordering the defendant Federal Bureau of Investigation to disclose certain information to plaintiff pursuant to the Freedom of Information Act. Vacated and remanded for further proceedings.

Before Lumbard, Mansfield and Kearse, Circuit Judges.

Author: Kearse

Defendants appeals from so much of a judgment of the United States District Court for the District of Connecticut, T. Emmet Clarie, Chief Judge, as ordered the Federal Bureau of Investigation ("FBI") to disclose to plaintiff, pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 (1976), certain information supplied to the FBI by local law enforcement agencies. Because we conclude that such agencies may constitute "confidential source(s)," information from which may be exempt from disclosure under § 552(b)(7)(D), we vacate the judgment and remand for further proceedings.

FACTS

In the late 1960's the FBI compiled a dossier on plaintiff in connection with his New Left activities and his position as president of the Trinity College chapter of the Students for a Democratic Society. Plaintiff was apparently never prosecuted under federal law for any such activities. The FBI eventually closed its file on plaintiff and took his name off its list of potentially dangerous persons.

On July 27, 1975, plaintiff wrote to the FBI requesting copies of all files kept or maintained by the FBI concerning him. On August 24, 1975, at the FBI's request, he furnished additional information to enable it to make an accurate search of its records. During the ensuing year, plaintiff received no documents from the FBI, despite several follow-up requests and the intervention of plaintiff's congressman. The FBI explained that the delay was caused by an administrative backlog and the need to refer plaintiff's request to the FBI's Intelligence Division because some of the information in plaintiff's dossier was considered "classified." Plaintiff filed an appeal within the FBI but no action was taken on his appeal, apparently because the Appeals Unit also was suffering a backlog.

Plaintiff filed this action on October 8, 1976, seeking release of all of the FBI's documents concerning him. Meanwhile, the FBI had written to plaintiff on October 5, 1976, to advise him that 80 pages of material would be released to him upon his payment of an $8.00 duplicating fee. Plaintiff paid this fee and the 80 pages were released to him, but with substantial excisions. In response to plaintiff's administrative appeal, the FBI later released additional pages of material, consisting both of new material and of pages from the original release, now made available with less extensive deletions.

With these releases made, the dispute in the district court centered on the propriety of the deletions from the materials released and of the FBI's continued withholding of certain documents. Both sides moved for summary judgment. In support of their motion for summary judgment, the defendants submitted an affidavit by an FBI records supervisor, together with copies of the documents released and a comprehensive index which described in general terms the documents withheld, the information deleted from the released documents, and the FOIA exemption relied on for each withholding or deletion.

The motions for summary judgment were referred to Magistrate F. Owen Eagan, who, after receiving additional evidence and argument, filed a report recommending that the FBI be ordered to disclose to plaintiff any and all information concerning him still withheld by it, with seven exceptions.*fn1 This recommended ruling rejected the defendants' contention that, pursuant to FOIA exemption 7(D), the FBI should not be required to disclose information received in confidence from local law enforcement agencies:

(T)he FBI may not withhold any information transmitted by local law enforcement agencies on the grounds that they are confidential sources. Section (b)(7)(D) "does not extend to entities such as corporations, credit bureaus, or other organizations, including law enforcement agencies."

(Magistrate's Report at 8-9, quoting Ferguson v. Kelley, 448 F. Supp. 919, 925 (N.D.Ill.1978), on motion for reconsideration, 455 F. Supp. 324 (N.D.Ill.1978)). By endorsement on the report, the district court adopted the magistrate's findings of fact and conclusions of law, and judgment was entered accordingly.

Defendants appeal only from so much of the district court judgment as orders disclosure of information supplied by local law enforcement agencies. Plaintiff has not cross-appealed with respect to any of the exceptions to disclosure allowed by the judgment. The sole issue on this appeal, therefore, is whether local law enforcement agencies may constitute "confidential source(s)" for purposes of exemption from disclosure.

Discussion

FOIA provides in general that agency records must be disclosed to the public on request. 5 U.S.C. § 552(a). The statute provides a number of exemptions, however, including ...


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