The opinion of the court was delivered by: BLOCH
Plaintiff, Francis Rick Ferri, brings this action for injunctive relief against defendant, the United States Department of Justice, pursuant to the Freedom of Information Act (hereinafter referred to as "FOIA"), 5 U.S.C. § 552(a), et seq. This Court is vested with jurisdiction pursuant to 5 U.S.C. § 552(a)(4)(B). Plaintiff was previously prosecuted and convicted in this Court and now seeks to compel the production of information concerning that prosecution and conviction. Specifically, plaintiff requests access to information concerning himself; the prosecuting attorney, Thomas Crawford; and witnesses, Herbert Wagner (Charles Herbert Wagner) and Lynn Dunn. In his complaint, the plaintiff alleges that he has exhausted the available administrative remedies in an attempt to secure the aforesaid information. The government claims that certain of the requested documents are exempt from disclosure and has filed Vaughn affidavits and indices.
After filing the Vaughn affidavits and indices, the government moved for summary judgment, alleging that there is no genuine issue as to any material fact presented by the action and that the government is entitled to judgment as a matter of law. By Opinion and Order of September 17, 1982 (Ferri v. United States Department of Justice, CA81-317 (docket entry No. 26)), this Court denied said motion because the government did not follow the applicable procedure when claiming an exemption by supplying the original copies of the documents, for which they were claiming exemption, for Court review.
See Lame v. United States Department of Justice, 654 F.2d 917, 922, 929 (3d Cir. 1981). The government has supplied the Court with the missing documents and has renewed its motion for summary judgment. For the reasons set forth below, the Court hereby grants the government's renewed motion for summary judgment.
Summary judgment may be granted only when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."
Fed.R.Civ.P. 56(c). The Third Circuit has clearly stated that summary judgment is warranted only upon a clear showing that no genuine issue of fact exists and that the law clearly favors summary judgment based on those facts. Ely v. Hall's Motor Transit Co., 590 F.2d 62, 66 (3d Cir.1978). These requirements guide the Court in its review of the government's motion.
The FOIA was promulgated to further the belief that "an informed electorate is vital to the proper operation of a democracy." Sen.Rep. No. 813, 89th Cong., 1st Sess. 3 (1965), reprinted in FOIA Source Book: Legislative Materials, Cases, Articles 38 (1974). "The Act's central provision instructs agencies, upon request, to release promptly responsive records in their possession, subject to nine specific exemptions." Coastal States Gas Corp. v. Department of Energy, 644 F.2d 969, 974 (3d Cir.1981) (footnotes omitted). The exemptions are set forth in 5 U.S.C. § 552(b)(1)-(9). These exemptions, if properly established, provide the government with protection. The FOIA places the burden of establishing an exemption upon the governmental agency involved. Ferri v. Bell, 645 F.2d 1213, 1221 (3d Cir.1981); Coastal States Gas Corp., 644 F.2d at 974. If the agency has failed to release the requested information by claiming an exemption or for other reasons, and if the administrative appeals have been exhausted, the individual seeking disclosure can obtain review of the agency's denial in a federal district court pursuant to 5 U.S.C. § 552(a)(4)(B).
That is exactly how the present issue has come before this Court.
The government does assert exemptions in this case as follows: (1) exemptions pursuant to 5 U.S.C. § 552(b)(2) to withhold information related solely to the internal personnel rules and practices of the agency; (2) exemptions pursuant to 5 U.S.C. § 552(b)(3) and Fed.R.Crim.P. 6(e) for grand jury material; (3) exemptions pursuant to 5 U.S.C. § 552(b)(5) to withhold inter-agency or intra-agency memorandums; (4) exemptions pursuant 5 U.S.C. § 552(b)(6) to withhold personnel and medical files, the disclosure of which would constitute an unwarranted invasion of privacy; (5) exemptions pursuant to 5 U.S.C. § 552(b)(7)(C) to withhold investigatory records of a law enforcement agency, the disclosure of which would constitute an unwarranted invasion of privacy; (6) exemptions pursuant to 5 U.S.C. § 552(b)(7)(D) to withhold information in order to protect confidential sources of information; and (7) exemptions pursuant to 5 U.S.C. § 552(b)(7)(F) to withhold investigatory records of a law enforcement agency, the disclosure of which would endanger the life or safety of law enforcement personnel.
If an exemption is claimed by the government, the Court must follow a certain procedure which originated with the case of Vaughn v. Rosen, 157 U.S. App. D.C. 340, 484 F.2d 820 (D.C.Cir.1973), cert. denied, 415 U.S. 977, 94 S. Ct. 1564, 39 L. Ed. 2d 873 (1979).
The Third Circuit adopted the Vaughn procedures in Ferri, 645 F.2d at 1222, and succinctly summarized the appropriate steps in that procedure in the Lame case. 654 F.2d at 921-922.
In Lame, the Third Circuit stated that, "in the ordinary case, the agency must provide a detailed public justification for its claims of exemption. This justification must be accompanied by an index that 'would correlate statements made in the government's refusal justification with the actual portions of the document.'" Id. at 921 (quoting Vaughn, 484 F.2d at 827). The filing of the Vaughn affidavits and indices serves to narrow the disputed issues and permits a reasonable disposition by the district court. Lame, 654 F.2d at 922. In certain unusual cases, the governmental agency may not believe that it is proper to file a detailed Vaughn index because such an index "could reveal the very information that the agency claims is protected from the disclosure." Id. at 921. In such cases, the agency is still required to file an affidavit which explains the basis for the claimed exemption. Phillippi v. Central Intelligence Agency, 178 U.S. App. D.C. 243, 546 F.2d 1009, 1113 (D.C.Cir.1976). Although a Phillippi -type response does not provide the requested information or Vaughn index, it does serve to reveal to the requesting party, and to the Court, the basis upon which the government is resisting disclosure; the requesting party is then in a position to contest the government's theory. In both the ordinary-type case, in which a Vaughn index is filed, and the Phillippi -type case, in which only a public affidavit is filed, "in camera affidavits and submissions are authorized and the district court may resort to them in arriving at its ultimate determination."
Lame, 654 F.2d at 922. Finally, as evident from the Court's previous Opinion on summary judgment in this case, the government must give the Court an opportunity to review the documents which it claims exemption for. Id. at 922, 927.
As stated, the government has now produced the documents for which it claims exemptions, and the case is in a proper procedural posture that permits discussion of the merits of the summary judgment motion. To facilitate orderly discussion of the motion, the court discusses the requests for information separately in the following fashion: (1) requests relating to grand jury material; (2) requests relating to Herbert Wagner (Charles Herbert Wagner); (3) requests relating to Lynn Dunn; and (4) requests relating to Thomas Crawford and the plaintiff.
The record reveals that over 6,000 pages of grand jury testimony were located in connection with plaintiff's request. Newett Affidavit, p. 5 (docket entry No. 15).
The government has refused to release this information to the plaintiff, claiming that it is exempt under 5 U.S.C. § 552(b)(3),
which exempts those materials protected from disclosure by statute. Specifically, the government claims that Fed.R.Crim.P. 6(e) precludes disclosure of grand jury materials and that Rule 6(e) is a statute included within the protection of § 552(b)(3). This contention is supported by the case of Fund for Constitutional Government v. National Archives, 211 U.S. App. D.C. 267, 656 F.2d 856, 868 (D.C.Cir.1981) (cited with approval by the Third Circuit in In Re Grand Jury Matter, 682 F.2d 61, 64 n. 5 (1982)). In that case, the District of Columbia Circuit specifically addressed the issue of whether Rule 6(e) is a statute for purposes of § 552(b)(3). The Court held that it is such a statute, stating that "Congress, by statute, enacted a modified version of Rule 6(e) in substantially its present form." Fund for Constitutional Government, 656 F.2d at 867. On this basis, the Court concluded that the "rules ban on disclosure is for FOIA purposes absolute and falls within subpart (A) of Exemption 3." Id. at 868.
Parties seeking grand jury transcripts under Rule 6(e) must show that the material they seek is needed to avoid a possible injustice in another judicial proceeding, that the need for disclosure is greater than the need for continued secrecy, and that their request is structured to cover only material so needed.
Id. at 222, 99 S. Ct. at 1674. There has been no such showing here. In fact, the plaintiff concedes that the material is exempt; his only contention is that he is entitled to an indexing of the grand jury materials. The Court does not agree with plaintiff's contention. The Vaughn Court developed the indexing and affidavit procedure as a means of promoting informed adversial argument and testing the government's exemption claim. Since transcripts of grand jury testimony are clearly exempt under Rule 6(e) and § 552(b)(3) and since the defendant makes no allegation with respect to the Rule 6(e) exceptions, the Court sees no reason for the government to produce an indexing of the transcripts.
As stated, plaintiff seeks information concerning Herbert Wagner (Charles Herbert Wagner) (hereinafter referred to as "Wagner"), who was a witness at plaintiff's trial. Specifically, plaintiff requested Wagner's FBI "rap" sheet and other data that the FBI maintains on Wagner. Plaintiff's request identified Wagner as "one Herbert Wagner, (Charles Herbert Wagner), who in 1975 resided in Harrisburg, Pa., and was a witness for the government in U.S. of A. v. Ferri, Cr. No. 74-277 (W.D.Pa.) in February 1975." Answer, exhibit B (docket entry No. 4).
The FBI informed the plaintiff, by letter of August 8, 1980, that, based on the request, it lacked sufficient information to determine which of the more than one hundred Herbert Wagner references may be identifiable with Plaintiff's request. The FBI requested, in the August 8 letter, that plaintiff produce additional identifying material, such as Wagner's date of birth, place of birth, prior addresses, and current address, if possible. This position was again stated to the plaintiff by letter of September 14, 1981, from the United States Attorney for the Western District of Pennsylvania to plaintiff's counsel. Defendant's motion for summary judgment, exhibit B (docket entry No. 21). The plaintiff never provided, or attempted to provide, any additional information, and this requires an award of summary judgment in favor of the defendant with respect to this request.
To explain this decision, the Court first refers to the affidavit (docket entry No. 16) of Tom D. King, FBI special agent who serves in a supervisory capacity to the Freedom of Information-Privacy Acts section at FBI central headquarters in Washington, D.C. That affidavit explains the FBI central records system and general indices as well as the search procedures used to locate records. King's affidavit reveals that access to the system is afforded by general indices, arranged in alphabetical order and consisting of approximately 60 million index cards on various subject matters, including names of individuals. The index cards fall into two general categories as follows: (1) "main" index cards and (2) "see" index cards. A main index card carries the name of the individual, organization, or activity which is the main subject of a file kept in the system, while a see index card contains only a mention or reference to an individual, organization, or activity. See Section II of King affidavit (docket entry No. 16).
The affidavit further explains that once a search is requested under the FOIA, the FBI searches both the active and inactive indices to the central records system. The Bureau restricts its search to main files and certain see files considered to be main-file equivalents. The initial requests are handled in this fashion until such time as the requester is able to focus the search by narrowing his ...