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04/28/80 Harold Weisberg, v. United States Department


April 28, 1980




Before BAZELON, Senior Circuit Judge, and ROBINSON, Circuit Judge, and VAN DUSEN,* United States Circuit Judge for the Third Circuit.


Appeal from the United States District Court from the District of Columbia (D.C. Civil Action No. 75-0226).



Harold Weisberg appears here for the third time in his decade-long crusade under the Freedom of Information Act (the Act) *fn1 for documents bearing on the assassination of President Kennedy. *fn2 The present appeal is from a summary judgment in the District Court holding that the Department of Justice has disclosed all available material within the scope of Weisberg's quest. *fn3 Our review of the record constrains us to conclude that the Department's demonstration on that score was inadequate for purposes of summary judgment. Accordingly, we reverse the judgment and remand the case for further proceedings. I

In 1970, Weisberg petitioned the Federal Bureau of Investigation for release of spectrographic analyses of several items of Kennedy-assassination evidence. *fn4 The FBI denied his request, claiming that the analyses were protected from disclosure by Exemption 7 of the Act, *fn5 a provision shielding investigatory files compiled for law enforcement purposes. *fn6 In 1973, this court, sitting en banc, upheld that determination. *fn7 Following our decision, however, Congress amended the Act and narrowed the scope of Exemption 7. *fn8

Weisberg then renewed his demands for investigatory data, directing them to both the FBI and the Atomic Energy Commission. *fn9 Although some documents were disclosed, Weisberg felt that the agencies had made an inadequate response, and attempted to establish through interrogatories that there were additional records not provided to him. *fn10 On the agencies' motion, the District Court quashed the interrogatories as "oppressive," found that the agencies had "complied substantially" with Weisberg's requests, and dismissed his case as moot. *fn11 We reversed, however, finding material disputed facts regarding the existence of relevant but unreleased records, and holding that Weisberg was entitled to further discovery. *fn12

In remanding for that purpose, we expressed the opinion that success in locating the desired data might be promoted if Weisberg sought testimony from those who conducted the scientific tests and generated the records, instead of questioning present custodians of the files. *fn13 Weisberg followed this suggestion and deposed four FBI agents who had personal knowledge of the tests performed. *fn14 He also resubmitted interrogatories and requests for production of documents to the FBI and the Energy Research and Development Administration , the successor to the Atomic Energy Commission. *fn15 Weisberg then endeavored to depose FBI Special Agent John W. Kilty on the scope of the search that had been made of FBI files. *fn16 Kilty had earlier executed two affidavits avowing that the files contained no information of interest to Weisberg other than that already furnished him. *fn17

The Department of Justice moved for a protective order to prevent the deposition, and to quash an accompanying subpoena, on the grounds that they would be unduly burdensome and would exceed the scope of our earlier remand, which the Department interpreted as confining discovery to testimony by those directly involved in creating the investigative records. *fn18 The District Court, persuaded that the deposition would impose "an unnecessary burden," granted the motion, *fn19 and, in a subsequent memorandum opinion, awarded the Department a summary judgment, holding that it had adequately demonstrated that all available documents within the purview of Weisberg's demands had been released, and thus had met its burden of showing that there remained no genuine issue of material fact. *fn20

Weisberg now appeals this disposition, contending that summary judgment was improper because the depositions and the responses to his interrogatories identified documents not given to him, and the Department had not substantiated a file search of a caliber sufficient to assure retrieval of all existing data. After carefully reviewing the record before us, we find that there remains a genuine issue of material fact as to whether all extant documents encompassed by Weisberg's request have been located. *fn21 II

Only recently we summarized the principles governing the propriety of granting summary judgment on a claim that an agency has fully discharged the disclosure responsibility imposed by the Act. We said: *fn22

It is well settled in Freedom of Information Act cases as in any others that "summary judgment may be granted only if the moving party proves that no substantial and material facts are in dispute and that he is entitled to judgment as a matter of law." *fn23 It is equally settled in federal procedural law that

(t)he party seeking summary judgment has the burden of showing there is no genuine issue of material fact, even on issues where the other party would have the burden of proof at trial, and even if the opponent presents no conflicting evidentiary matter. "he inferences to be drawn from the underlying facts . . . must be viewed in the light most favorable to the party opposing the motion." *fn24

So, to prevail in a Freedom of Information Act suit, "the defending agency must prove that each document that falls within the class requested either has been produced, is unidentifiable or is wholly exempt from the Act's inspection requirements." *fn25

The Department of Justice relies entirely on a claim of complete disclosure. Thus, to prevail, it must demonstrate that there was no genuine issue respecting its assertion that all requested documents in its possession had been both unearthed and unmasked. In an effort to do so, the Department first contends that Agent Kilty's affidavits made a prima facie showing that the file search was thorough enough to uncover any data meeting Weisberg's specifications. *fn26 The Department further asserts that Weisberg failed to rebut this preliminary showing because the evidence adduced during discovery did not identify anything responsive to his request that has not now been disclosed. *fn27 When, however, the evidence is viewed in the light most favorable to Weisberg as indubitably it must be *fn28 we find that solicited but unproduced material may still be in FBI files. *fn29 As the record presently stands, the FBI's affirmations on the quality of the search do not eliminate that possibility. *fn30

Among the items identified through discovery was a spectrographic plate made during testing of a lead smear from the Dealey Plaza curbstone to determine whether it was caused by a bullet involved in the assassination. *fn31 The Department does not deny that this plate once existed; instead, in attempted explanation of the FBI's failure to produce the plate, the Department points to a statement by FBI Special Agent William R. Heilman that he believed the plate was discarded in one of the periodic housecleanings by the laboratory. *fn32 True it is that this morsel of evidence could lead to the conclusion, reached by the District Court, that the spectrographic plate is no longer in the FBI's possession. *fn33 But Heilman asserts no personal knowledge that the plate really was discarded, so another permissible inference is that Heilman is incorrect in his belief and that the plate remains somewhere in the FBI's domain. A factual question thus persists, and it was inappropriate for the District Court to undertake to resolve it at the stage of summary judgment. *fn34

The deposition of FBI Special Agent John F. Gallagher indicated that neutron activation analysis was conducted on specimen Q3, a bullet fragment found on the right front seat of the presidential limousine, and on specimen Q15, residues collected by scraping the vehicle's windshield. *fn35 Weisberg claimed that the computer printouts containing the raw data from the NAA testings have been withheld. Agent Gallagher testified responsively that these data sheets may not have been kept because they were duplicative of information recorded on worksheets at the time of the testing, *fn36 copies of which have been provided to Weisberg. *fn37 Again, although the District Court took this evidence as sufficient to demonstrate that the printouts were no longer available, *fn38 that result was not compelled. Viewing the evidence in the light most favorable to Weisberg, one might easily infer that the printouts were not discarded and are still in the FBI's possession.

FBI Special Agent Robert A. Frazier stated that he had asked another agent, possibly Paul Stombaugh, to conduct an examination of the shirt worn by the President to determine whether two holes in the collar overlapped a question bearing on whether both holes were made by a single bullet. *fn39 After comparing this with Frazier's contradictory testimony before the Warren Commission, the District Court concluded that Frazier examined the shirt himself, and therefore that Stombaugh had not made any such examination at all. *fn40 The court's deduction was hardly illogical but, more to the point, was not inexorably required; while Frazier's Warren Commission testimony may have been the correct version, from aught that appeared his deposition statements could have been more accurate. Weisberg, we repeat, should have been the beneficiary of the inference more favorable to him that Stombaugh did make the examination and his report is somewhere in FBI files.

Thus, accepting the indications most favorable to Weisberg, at least these three documents should have turned up during the search of FBI files. *fn41 Since the Department did not show positively that the primary facts are not susceptible to this interpretation, it was not entitled to summary judgment. *fn42 The Department asserts, however, that even if the record did not establish that all once-existing records had either been produced or discarded, the affidavit of Agent Kilty adequately demonstrated the thoroughness of the FBI file search and negated any inference that other requested documents still remained in the files. *fn43

We have heretofore taken pains to define the role of affidavits in situations of this sort: *fn44

f course, in adjudicating the adequacy of the agency's identification and retrieval efforts, the trial court may be warranted in relying upon agency affidavits, for these "are equally trustworthy when they aver that all documents have been produced or are unidentifiable as when they aver that identified documents are exempt." *fn45 To justify that degree of confidence, however, supporting affidavits must be " "relatively detailed' and nonconclusory and must be submitted in good faith." *fn46 Even if these conditions are met the requester may nonetheless produce countervailing evidence, and if the sufficiency of the agency's identification or retrieval procedure is genuinely in issue, summary judgment is not in order.

Kilty's affidavit states only that:

I have conducted a review of FBI files which would contain information that Mr. Weisberg has requested. . . . The FBI files to the best of my knowledge do not include any information requested by Mr. Weisberg other than the information made available to him. *fn47

Even if, as the Department argues, this is to be read as an indication of a review of all FBI files potentially containing information Weisberg demanded, *fn48 the affidavit gives no detail as to the scope of the examination and thus is insufficient as a matter of law to establish its completeness. *fn49 This is particularly so in view of the inferences, arising from the other evidence, *fn50 that some documents once existing may not have been discarded and thus remain in the files.

Unlike earlier cases in which summary judgment was predicated in part on a finding that the document search was complete, *fn51 the agency affidavits now before us do not denote which files were searched or by whom, do not reflect any systematic approach to document location, and do not provide information specific enough to enable Weisberg to challenge the procedures utilized. Under these circumstances, issues genuinely existed as to the thoroughness of the FBI search, and consequently summary judgment was improper. Moreover, since resolution of these disputes was essential to disposition of Weisberg's several claims, the District Court should have permitted him to depose at least Agent Kilty and perhaps others who examined the files. Courts have ample authority to protect agencies from oppressive discovery for example, by limiting the scope of permissible questioning *fn52 and surely they need not sanction depositions down to the level of each individual participating in the search. *fn53 But the court becomes unduly restrictive when it bans further investigation while the adequacy of the search remains in doubt. *fn54

The judgment appealed from is reversed, and the case is remanded to the District Court to enable further proceedings consistent with this opinion.

Reversed and remanded.


* Sitting by designation pursuant to 28 U.S.C. ยง 291(a) (1976).

Opinion for the Court filed by Circuit Judge SPOTTSWOOD W. ROBINSON, III.

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