Jaffe v. Central Intelligence Agency

520 F. Supp. 124, 1981 U.S. Dist. LEXIS 15339
District Court, District of Columbia·Decided August 11, 1981·No. Civ. A. No. 76-1394·Published·Cited by 2 cases

Opinion

MEMORANDUM ORDER

BARRINGTON D. PARKER, District Judge.

On July 10, 1981 the defendant Federal Bureau of Investigation (FBI or Bureau)1 filed a motion for an enlargement of time of six months to comply with this Court’s Order of June 10, 198Í.2 That Order, which required the release of some material and more detailed justification for withholding the remaining information, was based on the Court’s conclusions, detailed in a memorandum of the same date, that the FBI had failed to comply with the requirements of the Freedom of Information Act (FOIA) 5 U.S.C. § 552. The plaintiffs have opposed this motion and have renewed their earlier motion for sanctions, filed on July 30, 1979, in which they sought appropriate relief against the defendant for failure to comply with prior court orders. The Court conducted hearings with respect to such motions on July 24, 1981 and August 3, 1981 at which time it received testimony from Special Agent Peter W. Kellen concerning the need for an additional six months. After considering the government’s motion in light of the past record developed in this case and the recent filings of the FBI, the Court concludes that only a limited enlargement of time is justified.

In the more than five years of this FOIA litigation the defendant has submitted six separate rounds of justifications — involving a total of eleven justification affidavits— purporting to explain the Bureau’s failure to release all requested documents. In four separate orders this Court has concluded that the justifications were inadequate and directed the FBI to explain in an acceptable fashion its refusal to release all requested documents as required by 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 [125]*125(1974). To date, the FBI has failed to file adequate justifications.

The record in this ease reveals a clear history of delay and obstinacy by the Bureau. The original complaint was filed on July 27, 1976 and plaintiffs’ Vaughn v. Rosen motion seeking detailed indexing, itemization and justification, with accompanying memorandum, was filed approximately one month later. The subsequent developments are briefly summarized.

First Round Justifications: The FBI’s opposition to plaintiffs’ Vaughn v. Rosen motion was filed on September 7, 1976. The FBI also submitted the First Affidavit of G. R. Schweickhardt, sworn to on November 8, 1976 (as amended by the Second and Third Schweickhardt Affidavits sworn to on December 22,1976 and March 3,1977, respectively) and the First Affidavit of Richard G. Kinsey, sworn to on December 8, 1976 (pertaining specifically to classified documents). The plaintiffs replied to the government’s response on November 30, 1976 and in a supplemental reply, filed on December 6,1976. By Memorandum Order, filed April 7, 1977 this Court noted that, although the FBI justifications “complied in some respects with the dictates of Vaughn, the untailored, boiler-plate descriptions and justifications as well as the serious omissions and inconsistencies found in the affidavits render the government offerings insufficient” and directed that the FBI “prepare a detailed itemization, indexing and justification of the withheld materials.”

Second Round Justifications: The FBI then submitted the Fourth Affidavit of G. R. Schweickhardt and the Second Affidavit of Richard G. Kinsey, both sworn to on July 7, 1977. In informal discussions between the parties, the plaintiffs objected to the inadequacies of the Fourth Schweickhardt and Second Kinsey affidavits. The FBI agreed to submit another set of Vaughn justification affidavits.

Third Round Justifications: The FBI then offered the Fifth Affidavit of G. R. Schweickhardt and the Third Affidavit of Richard G. Kinsey, both sworn to on January 16,1978. Contending that the justification affidavits were still inadequate, on March 20, 1978, the plaintiffs moved to compel compliance. On April 21, 1978 this Court assigned the matter to Magistrate Henry H. Kennedy3 for hearing and determination. By Order dated May 26, 1978, Magistrate Kennedy recognized that the FBI had not complied, granted the plaintiffs’ motion and ordered the Bureau to “produce further descriptions .. .. ”

Fourth Round Justifications: The FBI next submitted a Sixth Affidavit of G. R. Schweickhardt, sworn to on June 8, 1978. Once again, contending that the justifications were inadequate, the plaintiffs made a renewed motion to compel compliance, filed on July 3, 1978. By order dated September 20, 1978 the Magistrate found merit in the plaintiffs’ contentions, concluded that the FBI justifications were “vague in the extreme” and ruled that the plaintiffs’ motion to compel should be granted.

Fifth Round Justifications: The FBI next filed on November 11, 1978 the affidavit of John Pramik. Plaintiffs again objected to the FBI’s justifications in a memorandum filed March 26, 1979. After a status hearing the Magistrate made it clear that the Pramik affidavit was inadequate. In response to plaintiffs’ objections, the FBI advised, that it would file “more particularized descriptions.” Defendants’ Report to the Court of May 29, 1979.

Sixth Round Justifications: The FBI next submitted on June 28, 1979 the affidavit of Jerry Graves. Again contending that the FBI justification affidavits were inadequate, on August 1, 1979, the plaintiffs moved to impose sanctions because of defendants’ failure to comply. The defendants opposed plaintiffs’ motion on August 17, 1979 and the plaintiffs submitted a reply memorandum on August 30, 1979. On October 29, 1979 Magistrate Kennedy concluded that the “descriptions in the Graves affi[126]*126davit, although varying in their degree of specificity, in general do not permit a reasonable de novo determination of exemption claims.” He then recommended that the District Court review the FBI documents in camera, and while observing that “there is substantial reason to doubt the good faith of the [FBI’s] efforts in this case,” denied plaintiffs’ motion for sanctions. On November 8, 1979, plaintiffs appealed to the District Court those aspects of plaintiffs’ motion which were denied by the Magistrate. The FBI did not file objections or comment on the Magistrate’s conclusion that the Bureau’s justifications were inadequate or that he questioned the good faith of their efforts.

At a status conference on May 30, 1980 this Court requested counsel to submit further briefing of the parties’ contentions. Plaintiffs submitted a supplemental memorandum in Support of Plaintiffs’ Motion For Further Justifications And To Impose Sanctions For Defendants’ Failure to Comply With Court Orders, on July 7, 1980 and the Bureau filed a Memorandum in Continued Opposition to Plaintiffs’ Pending Motion Concerning Adequacy Of The Government Vaughn v. Rosen Affidavit on July 25, 1980.

On June 10, 1981, following an in camera

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