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LIEVERMAN v. UNITED STATES DOJ

September 27, 1984

THEODORE M. LIEVERMAN
v.
UNITED STATES DEPARTMENT OF JUSTICE



The opinion of the court was delivered by: GILES

 GILES, J.

 In this Freedom of Information Act (FOIA), 5 U.S.C. § 552, case, Theodore M. Lieverman seeks to compel disclosure of certain documents, and portions thereof, which have been withheld by the Federal Bureau of Investigation (FBI). The parties have filed cross motions for summary judgment. Lieverman requested either the release of the withheld documents or an in camera inspection by this court to determine whether the documents have been properly withheld. The government asserted that the records have been properly withheld in accordance with certain FOIA exemptions. After hearing oral argument, this court decided to conduct an in camera inspection because some of the documents seemingly could not contain material protected by the exemptions. *fn1" In addition, the withheld documents were relatively few in number so that an in camera inspection was not overly burdensome. *fn2" The in camera inspection revealed that the documents have been properly withheld. Therefore, this court shall now grant the government's motion for summary judgment.

 Lieverman appealed the FBI's decision. On appeal, additional documents were released to him. With the exception of the release of these additional records, the initial administrative decision was upheld.

 Lieverman subsequently filed this civil action seeking judicial review of the administrative decisions. The parties stipulated to the government's filing a Vaughn index in which the FBI would give specific reasons explaining why certain records were withheld from Lieverman. *fn3" Two special agents prepared affidavits in which they explained and justified each withholding. These affidavits and sanitized copies of the records in dispute were submitted as the Vaughn index. Special Agent Gary Haegele prepared his affidavit after he independently reviewed the records withheld pursuant to Exemption (b)(1). This exemption protects from disclosure all records which are:

 
(A) specifically authorized under criteria established by an Executive order to be kept secret in the interests of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order.

 He conducted his review pursuant to the criteria of Executive Order 12, 356, 47 Fed. Reg. 14874 (1982), which went into effect on August 1, 1982. *fn4" He concluded that the withheld records contained information regarding intelligence activities, sources and methods entitling these documents to classification under § 1.3(a)(4) of Executive Order 12,356. Under § 1.3(c) of Executive Order 12,356 "unauthorized disclosure of . . . the identity of a confidential foreign source, or intelligence sources or methods is presumed to cause damage to the national security." Consequently, he classified the relevant material as "confidential" in accordance with § 1.1(a)(3). In his affidavit, Special Agent Michael Beyer explained the steps taken by the FBI in responding to Lieverman's request, the files that were searched, the reasons for a file on Lieverman and the rationale for withholding certain records pursuant to Exemptions (b)(2), (b)(7)(C) and (b)(7)(D).

 Exemption (b)(2), 5 U.S.C. § 552(b)(2), exempts from disclosure matters that are "related solely to the internal personnel rules and practices of an agency." This exemption applies to "routine matters" of "merely internal significance" in which the public lacks any substantial or legitimate interest. Dept. of the Air Force v. Rose, 425 U.S. 352, 369-70, 48 L. Ed. 2d 11, 96 S. Ct. 1592 (1976). The FBI withheld "source symbol numbers" which it uses to refer to agents or informants in FBI records under this exemption.

 Exemption (b)(7)(C) and (D), 5 U.S.C. § (b)(7)(C) and (D) exempts from disclosure:

 
Investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would . . . (C) constitute an unwarranted invasion of personal privacy, (D) disclose the identity of a confidential source and, in the case of a record compiled . . . by an agency conducting a lawful national security intelligence investigation, confidential information furnished only by the confidential source . . .

 The FBI invoked Exemption (b)(7)(C) to protect the identities of FBI personnel, third parties mentioned in FBI records, third parties who provided information to the FBI during the course of their employment and state and local law enforcement officers. Exemption (b)(7)(D) was invoked to protect source symbol numbers and file numbers, the names of individuals who were confidential sources, the identities of commercial institutions providing information and information from a state or local law enforcement agency.

 Lieverman has made numerous objections to the invocation of these exemptions which can be ...


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