The opinion of the court was delivered by: WOLIN
Currently before the Court is the motion of defendant Federal Bureau of Investigation ("FBI") for summary judgment as to the first and second causes of action of plaintiff Todd Patterson's complaint and to dismiss the third cause of action. For the reasons set forth below, and after having reviewed in camera documents withheld by the FBI, the Court grants summary judgment in favor of the FBI dismissing the first, second and third causes of action of plaintiff's complaint. However, in consideration of the FBI's offer to expunge the name of plaintiff from any files it may possess, the Court encourages the FBI to abide by its offer and to expunge the plaintiff's name from all files, indexes or records maintained by the FBI that encompass the First Amendment activities of Todd Patterson.
I. BACKGROUND AND PROCEDURAL HISTORY
The facts of this case vividly illustrate the parental concern and public consternation which can be produced when the apparently remote world of high-tech intelligence and counter-intelligence is applied to the everyday world of grade school and school projects in the name of national security.
In 1983, plaintiff Todd Patterson, then a sixth grade elementary school student, decided to write an encyclopedia of the world. Not being content with the local library's resources, Todd undertook to write to all the countries of the world, 169 in all, to obtain information. Significantly, plaintiff enclosed much of his correspondence in envelopes bearing the return address of Laboratory Disposable Products, a business Todd's parents operate from their home.
The flood of international correspondence which Todd's project engendered apparently caught the eye of the FBI, through means and methods which the FBI does not wish revealed on account of national security concerns. Todd and his parents contend that many pieces of mail from foreign countries were received in damaged condition, particularly mail from the Soviet Union. The FBI, through affidavits and other supporting papers, denies any responsibility for opening or damaging Todd's mail.
What is undisputed is that, besides mail, Todd's project also caused Todd to receive a visit from the FBI. In late 1983, Agent John E. Butenschoen, from the FBI's Parsippany, New Jersey branch, appeared unannounced at the plaintiff's home in North Haledon, New Jersey. Agent Butenschoen spoke to Todd's mother and father, the latter by telephone, concerning Todd's project. Agent Butenschoen was shown Todd's room, the correspondence received by plaintiff, and the purpose Todd was using the correspondence for.
Agent Butenschoen requested that plaintiff, who was at elementary school at the time of the visit, call the agent. Soon after the visit, Todd did call Agent Butenschoen and spoke with him regarding plaintiff's project and his information requests to other countries.
As a result of Todd's project and the visit by Agent Butenschoen, it is clear that the FBI came to maintain at least one file on the plaintiff. Lieberman Affidavit, p. 7. On or about July 13, 1983, an FBI airtel was written relating to Laboratory Disposable Products. The document requested that the Newark Division "conduct appropriate investigation regarding the captioned company in accordance with Attorney General Guidelines." Defendant's Notice of Motion for Summary Judgment, Exhibit B, Document No. 1.
While Agent Butenschoen's visit to the Pattersons and the February 23, 1984 memorandum should have been the end of the matter, the Patterson's involuntary foray, whether real or imagined, into the world of counter-intelligence and national security, was not yet complete. During the summer of 1984, Todd Patterson received an invitation for a visit from the Soviet Mission in New York City. Concerned that the FBI was somehow monitoring plaintiff's activities, plaintiff's father requested that Todd contact Agent Butenschoen. Todd did so and informed the agent of the invitation. The agent requested that Todd report back to him after the visit. Affidavit of Todd Patterson, p. 3. Todd's visit to the Soviet Mission and his subsequent " debriefing" apparently went off without incident.
The FBI continues to maintain that it conducted no further investigation of plaintiff after 1983. Defendant's Reply Memorandum, p. 3. However, an airtel dated December 5, 1985, released by the FBI, along with five attachments that were not released, demonstrates that as of that date some entity of the United States Government continued to conduct activities that involved the plaintiff. Defendant's Notice of Motion, Exhibit B, Document No. 5. The FBI responds, somewhat cryptically, that "the specifics of how that 1985 airtel information came to the FBI is, of course, covered by the military and state secrets privilege, but it was not through any further investigation by the FBI." Defendant's Reply Memorandum, p. 3.
Finally, throughout the entire period of plaintiff's contact with the FBI and other unknown forces of counter-intelligence, up to the present, plaintiff maintains that at least 50 pieces of mail have been received in damaged condition, most of which originated in the Soviet Union. Plaintiff's Statement of Material Facts, para. 9. Plaintiff and his parents also report of hearing strange background noises on their telephones since 1983. Indeed, a now deceased employee of the Pattersons is said to have heard a voice say "Operator, this is not the phone I want tapped." Id. at para. 16.
The FBI strenuously refutes the Patterson's allegations of mail tampering and wiretapping, and the FBI characterizes the employee's story as an attempt to feed "Mr. Patterson's paranoid fantasy of governmental wiretapping." Defendant's Reply Memorandum, p. 2.
In early 1987, plaintiff learned that he could request access to records the FBI might be maintaining on him through use of the Freedom of Information Act ("FOIA").
Pursuant to FOIA, plaintiff made a request to the FBI in Washington, D.C. for "copies of my personal file in your records." Exhibit A-7 to defendant's notice of motion for summary judgment. By letter dated August 12, 1987, plaintiff was informed that "the information pertaining to you in FBIHQ records is exempt from disclosure pursuant to Title 5, United States Code, Section 552(b)(1) and Title 5, United States Code, Section 552a(j)(2)."
Plaintiff appealed the denial of his FOIA request by letter from his father to the Department of Justice's Office of Information and Privacy. On October 20, 1987, Richard L. Huff, co-director of the Office of Information and Privacy, notified plaintiff that his FOIA appeal had been denied. Plaintiff was also notified of his right to seek judicial review of the agency's determination in the United States District Court. One month later, Huff wrote to inform the Pattersons that, after a further review of Todd's request, six pages of the plaintiff's file were being declassified. Exhibit A-11. In March, 1988, plaintiff initiated a second FOIA request, this time directed at the FBI's Newark Field Office. In May of 1988, Todd initiated a civil suit through his father, Edgar Patterson, against defendants FBI, John Doe, an unknown employee of the United States Government, and John Doe Agency, an unknown agency of the United States Government.
Plaintiff's suit seeks injunctive relief and/or damages under three distinct causes of action: failure to comply with FOIA; violations of the Privacy Act, 5 U.S.C. § 552a et seq., as a result of the FBI's maintenance of files describing plaintiff's exercise of rights guaranteed by the First Amendment; and violations of plaintiff's First and Fourth Amendment rights and of 18 U.S.C. § 1702 and 19 U.S.C. § 482, statutes relating to the U.S. mail.
On September 26, 1988, the FBI filed the summary judgment motion now before the Court. At the close of oral argument on defendant's motion, the Court reserved decision and ordered the defendant to submit an in camera affidavit establishing a rational link between specific law enforcement objectives and statutes and the files which the FBI maintained on the First Amendment activities of the plaintiff. Subsequent to oral argument, the Court further ordered that the FBI submit to the Court for in camera inspection certain specified documents which the FBI is seeking to withhold from the plaintiff. Letter and Order, December 30, 1988 (attached as Appendix A to this Opinion). The FBI responded to the Court's order by submitting for in camera inspection by the Court the entire content of records maintained by the FBI concerning plaintiff's FOIA request. The defendant also formerly invoked the military and state secrets privilege in response to discovery sought by the plaintiff by means of an affidavit of Attorney General Dick Thornburgh dated January 13, 1989.
A. Plaintiff's FOIA Claim
In all FOIA cases, the role of the District Court is to review de novo all agency claims that material requested pursuant to FOIA is subject to an exemption contained in the statute.
In such a case, the agency bears the burden of justifying its decision to withhold requested information.
King v. U.S. Dept. of Justice, 265 U.S. App. D.C. 62, 830 F.2d 210, 217 (D.C. Cir. 1987); Miller v. Casey, 235 U.S. App. D.C. 11, 730 F.2d 773, 776 (D.C. Cir. 1984). The agency may meet this burden through the filing of affidavits that describe the material withheld and articulate why the material falls within the claimed exemption. King, 830 F.2d at 217; Military Audit Project v. Casey, 211 U.S. App. D.C. 135, 656 F.2d 724, 738 (D.C. Cir. 1981). In the present case, the FBI claims that the withheld material falls under Exemption 1 of FOIA, relating to National Security, and Exemption 7, concerning protection of privacy.
1. Exemption 1 - National Security
Exemption 1 of FOIA enables an agency to refrain from disclosing information that is "specifically authorized under criteria established by an Executive Order to be kept secret in the interest of the national defense or foreign policy and . . . [is] in fact properly classified pursuant to such Executive Order." 5 U.S.C. § 552(b)(1). The relevant Executive Order in this case is Executive Order on National Security Information, No. 12356, 47 Fed. Reg. 14874, issued by President Reagan on April 2, 1982, becoming effective on August 1, 1982.
When determining if an agency has properly withheld information pursuant to Exemption 1, a district court, as in all FOIA cases, must conduct a de novo review. However, both the legislative history of FOIA and the subsequent caselaw suggest that courts must "accord substantial weight to an agency's affidavit concerning the details of the classified status of a disputed record" given that "executive departments responsible for national defense and foreign policy matters have unique insights into what adverse effects might occur as a result of public disclosure." Salisbury v. United States, 223 U.S. App. D.C. 243, 690 F.2d 966, 970 (D.C. Cir. 1982) (quoting S. Rep. No. 1200, 93 Cong. 2d Sess. 12 (1974) (conference report) reprinted in 1974, U.S. Code Cong. & Admin. News, pp. 6267, 6290); accord King v. U.S. Department of Justice, 830 F.2d at 217 ("The court owes substantial weight to detailed agency explanations in the national security context.").
Even with the substantial weight standard, a court should grant summary judgment to an agency invoking Exemption 1 only if the agency supplies affidavits
that describe the withheld documents and the justifications for non-disclosure in sufficient detail and particularity so as to demonstrate that "material withheld is logically within the domain of the exemption claimed." King v. U.S. Department of Justice, 830 F.2d at 217. Moreover, a court should refrain from considering the agency affidavits dispositive if there is contradictory evidence in the record or if the specter of agency bad faith is demonstrated to the court. Id.; Miller v. Casey, 730 F.2d at 776; Military Audit Project v. Casey, 656 F.2d at 738.
In the case at hand, the FBI has produced the affidavit of Special Agent Philip W. Thomas to serve as a Vaughn index with regard to the application of Exemption One to plaintiff's FOIA requests. As the relevant section of FOIA, 5 U.S.C. § 552(b)(1), requires, the Thomas affidavit seeks to demonstrate that the withheld material is under the purview of an Executive Order and has been properly classified pursuant to such order.
Taking the procedural requirement first, the Court is satisfied that the Thomas affidavit sufficiently establishes that the FBI adhered to the procedural requirements of Executive Order 12356 when the withheld FOIA material was classified. EO 12356, §§ 1.5(a)(1)-(4), 1.6.
Turning to the substantive requirement of EO 12356, the Court must evaluate the merits of the Thomas affidavit's assertion that the withheld material fits under the classification criteria of EO 12356. The Thomas affidavit places its reliance on EO 12356, § 1.3(a)(4), which provides:
Sec. 1.3 Classification Categories.
(a) Information shall be considered for classification if it concerns:
(4) intelligence activities (including special activities), or intelligence sources or methods.
The above provision must be read in conjunction with EO 12356, § 1.3(b):
Information that is determined to concern one or more of the categories in Section 1.3(a) shall be classified when an original classification authority also determines that its unauthorized disclosure, either by itself or in the context of other information, reasonably could be expected to cause damage to the national security.
The FBI's choice to rely on the sources and methods classification category of the Executive Order struck the Court as eminently sensible considering the unlikelihood that any intelligence collected on a grade school student such as Todd would directly implicate the security of the Republic. However, upon initial review, the Court was unconvinced that the Thomas affidavit sufficiently demonstrated that the material withheld by the FBI in response to plaintiff's FOIA request belonged under the purview of EO 12356 § 1.3(a)(4), and that release of the withheld material reasonably could be expected to cause damage to the national security. In particular, the Court found that the Thomas Affidavit was unduly vague and repetitive in referring to the withholding of Document No. 4 in Exhibit B of the FBI's notice of motion, a one-page FBI airtel dated January 6, 1984, along with 17 attached pages, and Document No. 5, a one-page FBI airtel dated December 5, 1985, along with five attached pages.
While mindful of the limitations faced by the FBI in its attempt to describe why classified material is exempt from FOIA, the Court was concerned that allowing the FBI's cursory description of 24 pages of withheld material to suffice would not comport with this Court's task of conducting a meaningful de novo review of defendant's decision to withhold material under FOIA. Therefore, the Court ordered the FBI to submit the relevant withheld material for in camera inspection, although cognizant of the presumption that recourse to in camera inspection of classified documents ...