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Donovan v. Federal Bureau of Investigation

decided: November 24, 1986.

MICHAEL DONOVAN, WILLIAM FORD, JAMES KAZEL, AND JUDY KEOGH, PLAINTIFFS-APPELLANTS, CROSS-APPELLEES,
v.
FEDERAL BUREAU OF INVESTIGATION, DEFENDANT-APPELLEE, CROSS-APPELLANT



Appeal from an order of the United States District Court for the Southern District of New York (Sweet, J.) which denied plaintiffs-appellants' motion for summary judgment under the Freedom of Information Act, 5 U.S.C. § 552, and which withheld disclosure of 15 documents. Defendant-appellee, the FBI, cross-appeals as to 6 documents which were ordered to be disclosed. Affirmed in part and reversed in part.

Author: RE

Before: PRATT and MINER, Circuit Judges, and RE, Chief Judge, United States Court of International Trade, sitting by designation pursuant to 28 U.S.C. § 293(a)(1982).

RE, Chief Judge

Plaintiffs-appellants appeal from a judgment of the United States District Court for the Southern District of New York, which denied their motion for summary judgment under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, and, after an in camera review, withheld disclosure of 15 of 23 documents. Defendant-appellee, the Federal Bureau of Investigation, has cross-appealed as to 6 of the documents or parts of documents which were ordered disclosed.

Two questions are presented on this appeal: first, whether the District Court abused its discretion by having reviewed the documents in camera, and, second, whether the District Court properly ordered the disclosure of all or portions of documents 41, 84, 85, 86, 222, and 227.

This Court affirms the judgment of the District Court insofar as it pertains to plaintiffs' appeal, and grants the defendant judgment on the cross-appeal, modified so as to exempt form disclosure, pursuant to Exemption 7D of the FOIA, the contested portions of documents 222, 227, and 41.

Procedural History

On July 20, 1982, plaintiffs, the families of four American churchwomen who were murdered in El Salvador, commenced this action to compel disclosure of all government documents pertaining to the FBI's investigation of the murders. The FBI responded by asserting that Exemption 7A of the FOIA, 5 U.S.C. § 552(b)(7)(A), exempted from disclosure the entire 10-volume, 2912-page file.

On August 12, 1983, the District Court granted plaintiffs' motion for partial summary judgment, and ordered disclosure of most of the documents. See Donovan v. FBI, 579 F. Supp. 1111 (S.D.N.Y. 1983). upon the government's motion for reconsideration, however, the District Court, after an in camera review, held that Exemption 7A protected all but 162 of the requested documents. As to the documents held to be exempt from disclosure, the court held that the FBI would be required to provide a so-called Vaughn affidavit or index to explain its contention that the documents were exempt from disclosure. See Donovan v. FBI, 579 F. Supp. at 1125. Both parties appealed, and, while the appeals were pending, the government of El Salvador tried and convicted five members of its National Guard for the murders of the churchwomen. Hence, the FBI notified this Court that it would withdraw its Exemption 7A claim, and that it would reprocess the documents. On August 4, 1984, this Court dismissed the appeals as moot, and remanded the case to the District Court. See Donovan v. FBI, Nos. 84-6102, 84-6114 (2d Cir. Aug. 1, 1984).

Upon remand, the FBI released most of the file, but asserted various exemptions for some of the documents. On February 8, 1984, plaintiffs requested a Vaughn index for 34 documents that were withheld in their entirety, 72 documents withheld in part, 58 State Department documents withheld in part, and an additional 37 documents if they were relevant to the murders. Accordingly, the government provided a 70-page affidavit prepared by FBI agent Martell (The Martell affidavit), together with additional declarations from the particular agencies involved. On July 31, 1985, the plaintiffs moved for an order to direct the government to provide another, more detailed, Vaughn affidavit. This motion was limited to 23 documents. The government opposed this motion, and contended that, since the Martell affidavit satisfied its burden under the FOIA, summary judgment should be granted in its favor.

On these cross-motions, the District Court held that the affidavit failed to satisfy the agency's responsibility under the FOIA. Donovan v. FBI, 625 F. Supp. 808, 812 (S.D.N.Y. 1986). Instead of ordering the government to provide another affidavit, the court itself undertook to review the documents in camera. After the in camera review, the court upheld the withholding of 15 of the documents, and ordered the disclosure of the remaining eight documents.

On January 17, 1986 the government moved to reargue the District Court's order as to six documents, referred to as documents 41, 84, 85, 86, 222, and 227. The District Court denied the motion, and ordered the release or disclosure of additional portions of document 86. See Donovan v. FBI, 633 F. Supp. 35 (S.D.N.Y. 1986). Thereafter, the government appealed the order directing disclosure of certain deletions in documents 41, 84, 85, 86, 222, and 227, and plaintiffs appealed the judgment exempting the 15 documents from disclosure.

Discussion

In enacting the Freedom of Information Act, codified as part of the Administrative Procedure Act, Congress expressed the strong policy which favors the disclosure to the public of information in the possession of federal agencies. See, e.g., CIA v. Sims, 471 U.S. 159, 105 S. Ct. 1881, 1886, 85 L. Ed. 2d 173 (1985); Chrysler Corp. v. Brown, 441 U.S. 281, 285, 60 L. Ed. 2d 208, 99 S. Ct. 1705 (1979); Brown v. FBI, 658 F.2d 71, 73, (2d Cir. 1981). The legislation has been described as "an attempt to meet the demand for ...


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