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

April 28, 1980

HAROLD WEISBERG, APPELLANT

v.

UNITED STATES DEPARTMENT OF JUSTICE, ET AL. 1980.CDC.90 DATE DECIDED: APRIL 28, 1980



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

UNITED STATES COURT OF APPEALS, DISTRICT OF COLUMBIA CIRCUIT

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

APPELLATE PANEL:

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE ROBINSON

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 ...


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