decided: April 1, 1981; As Amended April 9, 1981.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
Before Adams, Gibbons and Van Dusen, Circuit Judges.
The instant appeal arises out of a civil action brought under the Freedom of Information Act (FOIA), 5 U.S.C. § 552(a)(4)(B), to compel the Justice Department to produce certain documents which it claims are exempt. At the time this suit commenced, appellant Ferri was serving a 31 year sentence in the United States Penitentiary at Lewisburg, Pennsylvania, for mail fraud, influencing a government witness, and firearms violations. He sought to compel production of (1) his sentencing judge's recommendation, Form 235; (2) the "rap sheet" i. e. conviction and arrest record*fn1 of one Lynn Dunn, and (3) information pertaining to the purchase, use, and inventory control of electronic eavesdropping devices by the Justice Department in Western Pennsylvania. Ruling on cross-motions for summary judgment, the district court granted Ferri access to the conviction record of Dunn, but denied all his other requests, including the one for Dunn's arrest record. On appeal, Ferri protests the withholding of this latter record, as well as the blanket denial of any information regarding the purchase and control of surveillance equipment. He does not press his claim to the Form 235 sentencing recommendation.
Ferri first requested disclosure by letters directed or referred to the FBI. Dunn's record of prior convictions was first sought by letter dated January 3, 1977. Twice being rebuffed, he appealed to the Justice Department's Office of Privacy and Information Appeals, which informed him of its formal denial on November 8, 1977.
Processing of Ferri's request for information pertaining to the procurement and circulation of surveillance equipment proceeded much more slowly. That request was first submitted by letter on July 26, 1976. The letter contained five questions, set out in the margin.*fn2 By letter dated October 13, 1976, Ferri was asked to reformulate his request in order to provide a clearer description of the information he desired. No offer of assistance was extended, despite Justice Department regulations making that practice mandatory. See 28 C.F.R. § 16.3(d)(2) (1980). Immediately, Ferri attempted to comply by expanding his request to nine, more lengthy questions. The final submission asked:
1) From "whom' does the F.B.I. in Pittsburgh, Pa. obtain its electronic surveillance equipment, wire tapping devices, honing devices, listening bugs, pen registers, long range honing devices, etc.?
2) The method used to request such usage of these devices? Copies of applications not limited to wire tapping applications but all devices.
3) The method used to order said devices?
4) The inventory control of said devices? The parties whose responsibility was the inventory control?
5) The names of the F.B.I. personnel trained and authorized to operate each of the above said type devices?
6) Does the F.B.I. "loan' any of these devices to other government agencies? The method(s) of? Whom? The inventory listing of such?
7) Does the F.B.I. authorize State police authorities to assist them in using these devices, or any local police agency?
8) The specific number of such devices in the control etc. of the F.B.I. in each of the above items. The specific number of each device in the F.B.I. offices or control thereof agents etc. from the years of 1971 thru 1973, the weekly summary reports thereof etc.
9) Does this office know of any usage of these devices in relation to the undersigned?
It was almost a year before Ferri heard from the FBI again.*fn3 By letter dated September 27, 1977, and signed by the then Director of the FBI, Clarence M. Kelley, the questions were answered to the following extent:
A search of our electronic surveillance indices revealed no record identifiable with you.
All electronic devices used by the FBI are procured by FBI Headquarters, where inventory control is maintained. Electronic surveillance is conducted under the authority of a court order of the Attorney General of the United States.
We may loan, upon formal request, equipment to other Government agencies for their use.
The FBI does not seek the assistance of State or local police authorities in ...