The other affiant, Patrick Collins, also in a supervisory position with the FBI, confirms Breen's interpretation of the documents, primarily on the basis of his "general experience with similar such reports," and his familiarity with the practice and procedure of the FBI. He states that while he was in charge of the FBI's national organized crime program in New York City, he received a copy of the Philadelphia report prepared by Breen and used it in preparing a national report on La Cosa Nostra for 1971. As to the personal profile card, he avers simply that he once saw it in FBI files.
I conclude that these affidavits present a wholly insufficient basis for the entry of summary judgment on the issue of truth. It is true that the factual allegations contained in the affidavits are uncontroverted, except by general denials made by plaintiff in his complaint and reiterated in his present affidavit and responsive brief. Moreover, as noted in my August 30 memorandum opinion, such general denials are ordinarily unavailing against specific factual allegations contained in a movant's affidavit. See, e.g., Tunnell v. Wiley, 514 F.2d 971 (3d Cir. 1975); Smith v. Webb, 420 F. Supp. 600 (E.D.Pa. 1976). But this court must also recognize the difficulty that plaintiff would have in specifically controverting these particular factual allegations. It would be a challenging task indeed for him to "prove a negative" in this case, see Mathis, supra, 455 F. Supp. at 414; Corabi, supra, 441 Pa. at 449, 273 A.2d at 908-09, i. e., by establishing that FBI agents have never tape-recorded Russell Bufalino describing Philip Medico as a Mafia chief. As a practical matter, the only denial that the plaintiff can make is a general denial.
This practical consideration must be viewed in light of the fact that, in Pennsylvania, the burden of proof on the issue of truth rests with the defendant, not the plaintiff. It has been announced by both the legislature and the courts of this state that it is for the defendant to prove the truth of the statement, rather than for the plaintiff to prove its falsity. See 42 Pa.C.S.A. § 8343; Corabi, supra, 441 Pa. at 449, 273 A.2d at 908. Cf. Herbert v. Lando, 441 U.S. 153, 175, 99 S. Ct. 1635, 1649, 60 L. Ed. 2d 115 (1979) (noting recent judicial trend toward shifting burden of proof on truth issue from defendant to plaintiff). In other words, the falsity of the defamatory statement should be presumed. Corabi, supra.
A related consideration springs from federal procedural law. Under Rule 56 of the Federal Rules of Civil Procedure, material submitted in support of a motion for summary judgment must be viewed in the light most favorable to the opposing party. Adickes v. Kress & Co., 398 U.S. 144, 157, 90 S. Ct. 1598, 1608, 26 L. Ed. 2d 142 (1970). The opposing party is entitled to the benefit of all reasonable doubts and inferences that may arise in connection with the motion. Harold Friedman Inc. v. Thorofare Markets Inc., 587 F.2d 127, 131 (3d Cir. 1978).
In whatever light the present affidavits are viewed, they are sufficient to establish the authenticity of the attached documents as official FBI materials. Both affiants state that they are former FBI officials who, through personal acquaintance with the documents in question, are able to identify them as official FBI records maintained in the ordinary course of FBI activity.
However, even granting the authenticity of the documents, and assuming arguendo that they would be admissible into evidence at trial, I am of the opinion that a firmer factual foundation than this is necessary to establish the truth of the publication and thus to justify the granting of summary judgment in this case. Neither affiant appears to have any personal knowledge of the factual bases for the proffered documents. Even the one affiant who claims to have directed and supervised the preparation of one of the documents professes no personal awareness of the source of the information contained therein, and gives no indication that he actually participated in the gathering of that information. No affidavit has been presented by any individual who actually installed the electronic listening device allegedly used, who actually monitored it, who produced or was ever personally aware of a tape-recording made from it, who actually transcribed such a tape-recording, or who was personally aware of the identity of all the participants in any relevant conversation so recorded and capable of accurately attributing speech among them. Thus, there is no information on the present record from which this court can make any conclusive finding as to the truth of the allegedly defamatory statements contained in the FBI documents. Inasmuch as the plaintiff has repeatedly and specifically denied that he is a "capodecina" in La Cosa Nostra he has raised a significant factual issue as to the likelihood that the FBI ever recorded anyone uttering such a description of him. The conclusion that this dispute is sufficient to prevent summary judgment upon the issue of truth is inescapable, when defendant's affidavits, replete with factual gaps and displaying only a partial basis in direct personal knowledge, are weighed against all the presumptions and inferences to which a non-moving libel plaintiff is entitled.
THE DEFENSE OF PRIVILEGE
Among the possible defenses to an action for defamation, the Restatement includes, in addition to the defense of truth, a number of different common-law privileges, conditional as well as absolute. One such conditional privilege is entitled "Report of Official Proceeding or Public Meeting," and provides as follows:
The publication of defamatory matter concerning another in a report of an official action or proceeding or of a meeting open to the public that deals with a matter of public concern is privileged if the report is accurate and complete or a fair abridgement of the occurrence reported.
Restatement (Second) of Torts § 611.
The Pennsylvania Supreme Court has not yet expressly adopted this provision, although it has adopted its direct predecessor, section 611 of the original Restatement. See Purcell v. Westinghouse Broadcasting Co., 411 Pa. 167, 191 A.2d 662 (1963); Sciandra v. Lynett, 409 Pa. 595, 187 A.2d 586 (1963). As Judge Luongo of this court recently concluded, however, the two versions are "substantially similar," and there is every indication that the new section 611 is now the law of Pennsylvania. Mathis, supra, 455 F. Supp. at 415-16. Indeed, insofar as the old section 611 provided for a privilege concerning "publication of a report of ... proceedings of a(n) ... administrative body or an executive officer of the United States," it seems that the two versions are, under the circumstances of the case at bar, functionally identical.
The privilege contained in section 611 thus should be regarded as the law of Pennsylvania, which this court is bound to follow in this diversity libel action. See Byrd v. Blue Ridge Rural Elec. Coop., Inc., 356 U.S. 525, 78 S. Ct. 893, 2 L. Ed. 2d 953 (1958); Hartmann v. Time, Inc., 166 F.2d 127 (3d Cir.), cert. denied, 334 U.S. 838, 68 S. Ct. 1495, 92 L. Ed. 1763 (1948). Moreover, the question of whether a privilege exists presents an issue of law for the court to determine. See Sciandra, supra at 606, 187 A.2d 586; Restatement (Second) of Torts § 619. I believe, therefore, that it is appropriate to consider the issue of privilege on the present motion for summary judgment.
The "official reports" privilege contained in section 611 has so far been applied by Pennsylvania courts only to records that are available to the public; its applicability to non-public records has not yet been tested. Two cases applying Pennsylvania law have unambiguously held that the privilege attaches to official reports that are intentionally released to the press. In Sciandra v. Lynett, supra, defendant newspaper published certain defamatory and/or false material about the plaintiff material that had been directly derived from a report of an official state investigation into a number of suspected organized crime figures.
The report had been publicly released to the press three weeks earlier. Citing the original section 611, the Pennsylvania Supreme Court held that "upon the theory that it is in the public interest that information be made available as to what takes place in public affairs, a newspaper has the privilege to report the acts of the executive or administrative officials of government." Id., 409 Pa. at 600, 187 A.2d at 588. The court further held that the newspaper had done nothing to abuse the privilege, i. e., by publishing something less than a substantially accurate account of the official report, or by publishing it solely for the purpose of causing harm to the person defamed. Id.
The other Pennsylvania case upon the subject of publicly released official reports is Mathis v. Philadelphia Newspapers, Inc., supra. In that case, defendants published information and a photograph supplied by the Philadelphia Police Department and the FBI, erroneously identifying the plaintiff as one of two suspects in a recent bank robbery. This court, per Judge Luongo, declined to hold that it was reasonable and non-negligent, as a matter of law, for defendants to have relied upon the accuracy of a photograph supplied by the FBI. The question of whether that reliance was reasonable enough to avoid liability for defamation, he concluded, presented a triable issue of fact for the jury. Id., 455 F. Supp. at 414-15. Nevertheless, he found that the photograph and accompanying information that had been released by the police to the news media constituted an "informal" governmental report, within the ambit of the privilege contained in the new section 611. He added that under the Restatement formulation, the privilege "exists even though the publisher himself does not believe the defamatory words he reports to be true and even when he knows them to be false." Id. at 417, quoting Restatement (Second) of Torts § 611, comment a (1977). Accord, Restatement, Torts § 611 (1938). The opinion echoed the holding of the Sciandra case that the privilege remains a qualified one, and may be lost if abused through inaccurate publication of the official report or through publication made solely for the purpose of causing harm to the person defamed.
The documents concerned in the present case are, like the defamatory material in Mathis, official FBI documents. This much at least, as noted earlier, is adequately established by the Breen and Collins affidavits. In addition, the documents, like the report in Sciandra, relate to matters of great public interest concerning organized crime, and, in the present case, concerning the possible relationship between organized crime and an elected member of Congress. Thus, if it were to appear that these documents had been, like the official reports in both Mathis and Sciandra, properly released by the government to public use, then under the rule of those cases, they would be privileged.
It does not clearly appear on the present record, however, that we are dealing here with public documents. There is no indication one way or the other as to how these FBI materials came into the hands of the individuals responsible for preparing the magazine article in question. Thus, it is appropriate to give plaintiff, for summary judgment purposes, the benefit of the doubt on this issue, and to assume that the documents were secret and that their release to the defendant was unauthorized. Upon this assumption, therefore, the controlling question in this case is whether the section 611 privilege extends to documents which have never been intentionally released to the press or the public, but which have come into the defendant's hands only by way of an unauthorized news leak or some unlawful act.
The first place to seek guidance upon this issue, of course, would be the Restatement itself. Certainly, nothing in the text of section 611 precludes the possibility that the privilege applies to non-public as well as public reports. It is stated simply that the privilege applies to "a report of an official action or proceeding." The term "official action" is defined, in comment d, to include any "report by an officer or agency of the government." In contrast, it should be noted that when the privilege is asserted as to reports of non-official proceedings, the Restatement unambiguously requires that such proceedings be open to the general public and deal with matters of public concern. Restatement (Second) of Torts § 611 and comment i. Indeed, the Restatement simply reflects the lack of authority upon the issue, when it states, in comment d to section 611, that "it is not clear whether the privilege extends to a report of an official proceeding that is not public or available to the public under the law."
Similarly, the Pennsylvania Supreme Court in the Sciandra case has offered no guidance upon the public/non-public reports dichotomy. The only rationale for the section 611 privilege mentioned by the Sciandra court is "that it is in the public interest that information be made available as to what takes place in public affairs." 409 Pa. at 600, 187 A.2d at 588. Under the circumstances of the Sciandra case, it seems clear that in speaking of "public affairs," the court was not attempting a determinative distinction between public and non-public official reports, but was simply equating the word "official" as used in section 611 with the notion of public business, in the sense that all official reports, whether made public or not, issue from the public sector rather than from private individuals and are therefore of general public concern. In any event, it seems to me that such dictum is sufficiently ambiguous to invite clarification from other sources.
Absent clarification under Pennsylvania law, it seems appropriate to seek guidance from the law statutory as well as judicially created of other states. One related area which has received a fair amount of judicial attention in other jurisdictions is the status, under the common-law official records privilege, of police reports and other preliminary investigations by law enforcement entities matters not ordinarily made public. There is considerable authority to the effect that the republication of such reports is not privileged. Yerkie v. Post-Newsweek Stations, Michigan, Inc., 470 F. Supp. 91 (D.Md. 1979); Lancour v. Herald & Globe Ass'n, 111 Vt. 371, 17 A.2d 253 (1941); Burrows v. Pulitzer Publishing Co., 255 S.W. 925 (Mo.App. 1923); Williams v. Black, 24 S.D. 501, 124 N.W. 728 (1910); Billet v. Times-Democrat Publishing Co., 107 La. 751, 32 So. 17 (1902); Jastrzembski v. Marxhausen, 120 Mich. 677, 79 N.W. 935 (1899). See 53 C.J.S. Libel and Slander § 129. See also Kelley v. Hearst Corp., 2 App.Div.2d 480, 157 N.Y.S.2d 498 (1956); Nunnally v. Press Publishing Co., 110 App.Div. 10, 96 N.Y.S. 1042 (1905). These cases, however, were not decided upon the issue of whether the investigative reports were available to the public or not. Rather, the determinative question was whether the reports were sufficiently a part of the judicial process to bring them within the privilege to report judicial proceedings. The above state court cases concluded, fairly enough, that they were not.
The privilege to report judicial proceedings, however, is just one aspect of the privilege contained in section 611 of the Restatement. Other matters privileged under section 611 include reports of actions of executive officers, legislative proceedings, public meetings of a non-official nature, and quasi-judicial proceedings such as administrative hearings. Nevertheless, the tendency (only occasionally appearing in contemporary case law) to limit the privilege solely to its judicial application may be understood by reference to the fact that the judicial aspect of the privilege is older and more fully developed than any other. See The King v. Wright, 8 T.R. 293, 101 Eng.Rep. 1396 (1799); Pittock v. O'Niell, 63 Pa. 253 (1870); Dorr v. United States, 195 U.S. 138, 152, 24 S. Ct. 808, 814, 49 L. Ed. 128 (1904); Pulvermann v. A. S. Abell Co., 131 F. Supp. 617, 622 (D.Md. 1955). See generally, Barnett, The Privilege of Defamation by Private Report of Public Official Proceedings, 31 Ore. L. Rev. 185 (1952); 5 Va. L. Rev. 513 (1918); W. Prosser, Law of Torts § 118, at 830 (4th ed. 1971). Therefore, cases excluding police reports from the scope of the judicial records privilege are not particularly helpful in the present case, where the applicable law of privilege, as embodied in section 611, encompasses far more than just records of judicial proceedings. In fact, as noted earlier, Judge Luongo of this district specifically held in the Mathis case that even such "informal governmental reports" as police dossiers on persons suspected of criminal activity fall within the section 611 privilege. 455 F. Supp. at 416.
This is not to say, however, that the distinction, for purposes of a qualified privilege to defame, between public and non-public official action has not been explored by the courts. It has been addressed in a number of cases, always in the context of judicial proceedings, but never, as observed earlier, solely in the context of police reports or reports by other non-judicial official entities. The bulk of this case law comes from New York, where there has long been a statute governing the scope of the official reports privilege. Until 1956, the statutory privilege, contained in section 337 of New York's Civil Practice Act, applied to any "fair and true report of any judicial, legislative or other public and official proceedings." (emphasis added). New York courts consistently found that this language meant quite plainly that the only judicial proceedings covered by the privilege were those that were both public and official. See Kelley v. Hearst Corp., supra; Danziger v. Hearst Corp., 304 N.Y. 244, 107 N.E.2d 62 (1952); Nunnally v. Press Publishing Co., supra; 43 A.L.R.3d 634, 637, and cases cited therein. Accord, McCurdy v. Hughes, 63 N.D. 435, 248 N.W. 512 (1933).
In 1956, however, the statute was amended to delete the word "public." The remaining language now presents a codified version of the official reports privilege substantially similar to that contained in section 611 of the Restatement.
New York courts construing the new statute have extended its protection to reports of certain types of secret judicial proceedings. For example, in Keogh v. New York Herald Tribune Co., 51 Misc.2d 888, 274 N.Y.S.2d 302, aff'd, 28 App.Div.2d 1209, 285 N.Y.S.2d 262 (1966), the privilege was extended to secret grand jury proceedings. The court indicated in that case that the secrecy of grand jury proceedings nevertheless remained intact, and that the abrogation of defamation liability in that context was independent of existing punitive sanctions for violation of that secrecy. In Shiles v. News Syndicate Co., 27 N.Y.2d 9, 313 N.Y.S.2d 104, 261 N.E.2d 251 (1970), cert. denied, 400 U.S. 999, 91 S. Ct. 454, 27 L. Ed. 2d 450 (1971), although the New York Court of Appeals declined to extend the privilege to secret records filed in matrimonial actions, it nevertheless recognized that the amended statute was meant to apply "to certain quasi-judicial and nonjudicial proceedings such as those conducted by administrative agencies which are not generally considered to be "public' in nature or which might not be open to the public." 27 N.Y.2d at 17, 313 N.Y.S.2d at 110, 261 N.E.2d at 255.
In Gardner v. Poughkeepsie Newspapers, Inc., 68 Misc.2d 169, 326 N.Y.S.2d 913 the privilege was extended, upon the authority of the Keogh case, to sealed court records of juvenile proceedings.
The consensus of New York law thus would appear to support an expansive reading of section 611 in the present case, affording the protection of the privilege to non-public as well as public official reports. Accord, La.Rev.Stat.Ann. § 14:49 (1974) ("public or official proceeding").
Common-law authority from other states is not quite so helpful. Of the few older decisions those dating back to the turn of the century involving claims of privilege as to secret court documents, none focused clearly on the public/non-public distinction as a critical point. See 43 A.L.R.3d 634, 641, and cases cited therein. One recent federal decision, however, contains the following language:
If the information is contained in public records and derived from therein, there is an absolute privilege to publish. If, however, material is received from other than the public record, then the defendant newspaper assumes the risk that the information is incorrect. Times-Dispatch Publishing Co. v. Zoll, 148 Va. 850, 139 S.E. 505, 507 (1927).