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Samahon v. Federal Bureau of Investigation

United States District Court, E.D. Pennsylvania

August 25, 2014

TUAN SAMAHON, Plaintiff,
v.
FEDERAL BUREAU OF INVESTIGATION, et al., Defendants

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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For TUAN SAMAHON, Plaintiff: MARY BETH LYON, LEAD ATTORNEY, VILLANOVA LAW SCHOOL, VILLANOVA, PA.

For FEDERAL BUREAU OF INVESTIGATION, U.S. DEPARTMENT OF JUSTICE, Defendants: RICHARD M. BERNSTEIN, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, PHILADELPHIA, PA.

MEMORANDUM

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EDUARDO C. ROBRENO, J.

This is a case about abuse of governmental power by senior officials in the federal government. Although technically framed as a request for disclosure of certain information in the files of the Federal Bureau of Investigation (" FBI" ) pursuant to the Freedom of Information Act

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(" FOIA" ), at bottom, the case is about the ability of the federal government to pry into the private lives of U.S. citizens with virtual impunity.

The case implicates the highest levels of the federal government, including President Lyndon B. Johnson, Associate Justice of the Supreme Court Abe Fortas, and senior FBI officials including FBI Director J. Edgar Hoover. The subject of the government's interest was George Hamilton, a film and television actor who at the time (circa 1966) was dating Lynda Bird Johnson, the President's oldest daughter.

It appears that either out of fatherly worry or fears of political embarrassment, President Johnson was concerned with the relationship. This concern led him to involve both the FBI and Associate Justice Abe Fortas in a " discreet investigation" of George Hamilton's personal life. The facts of this inquiry conducted by FBI agents are enshrined in the records of the FBI and lie at the center of this case. Ultimately, the inquiry uncovered little, if any, negative information about George Hamilton, but it reveals much about the ways and means of the government's investigation of private citizens in the 1960s.

This memorandum opinion proceeds in four parts. First, the opinion discusses the procedural and factual background of the case. Second, it delineates the general principles of the FOIA that govern the Court's analysis. Third, it examines the factual submissions provided to the Court by the FBI. Finally, it applies the law to those facts to determine whether the FBI properly withheld the requested information. For the reasons explained herein, the Court concludes that the FBI's denial of Plaintiff's requests was in violation of the broad disclosure requirements set forth in the FOIA.

I. BACKGROUND

Plaintiff Tuan Samahon (" Plaintiff" ) is a professor of law at Villanova Law School who is researching the 1969 resignation of Associate Justice Abe Fortas from the United States Supreme Court. Compl. ¶ 1, ECF No. 1. Specifically, Plaintiff is focusing on the potential role that the FBI, under the direction of former FBI Director J. Edgar Hoover, had in Justice Fortas's resignation.

As part of that research, Plaintiff submitted a FOIA request to the FBI on January 4, 2010, requesting disclosure of a copy of an internal FBI memorandum referred to as the " DeLoach Memorandum." Compl. ¶ 6. The DeLoach Memorandum is a two-page document dated October 25, 1966, that was sent by then-Deputy FBI Director Cartha DeLoach to Clyde Tolson, the Associate Director of the FBI at the time. Compl. ¶ 7 & Ex. 1, DeLoach Memo 1. In response to the FOIA request, the FBI provided a copy of the DeLoach Memorandum to Plaintiff, but redacted from the document two fifteen-character segments (hereinafter referred to as the " Redacted Memorandum" ).[1] Compl. ¶ 8 & DeLoach Mem. 1. According to the FBI's representations to Plaintiff, those two redactions contain the name of a living individual. Compl. ¶ ¶ 10, 38.

As is apparent even with the redactions, the subject of the DeLoach Memorandum is a telephone conversation DeLoach had with Justice Fortas on the morning of October 25, 1966. The first redaction occurs in the subject line of the memo, which states: " RE: CONVERSATION WITH JUSTICE FORTAS - [REDACTED]

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MATTER; BLACK CASE." DeLoach Mem. 1. The second redaction is in the first paragraph of the document, which reads as follows:

For record purposes, Justice Fortas called at 10:30 this morning to express appreciation for the information the Director had me furnish him concerning the [REDACTED] matter. Justice Fortas advised he agreed with the Director that no further action need be taken at this time. He stated he would get in touch with us in the event further inquiries should be made.

Id.

The DeLoach Memorandum then describes DeLoach's ex parte discussion with Justice Fortas regarding the matter of Black v. United States, 385 U.S. 26, 87 S.Ct. 190, 17 L.Ed.2d 26 (1966), a case that was pending before the Supreme Court at the time. DeLoach Mem. 1. The Black case involved the use of federal wiretapping and electronic surveillance investigative techniques, Compl. ¶ 13, and DeLoach indicated to Justice Fortas that the FBI was " somewhat concerned" with the case's potential outcome, DeLoach Mem. 1. According to the DeLoach Memorandum, DeLoach asked Justice Fortas " when a decision would be handed down." Id. Justice Fortas had recused himself from the case, but he indicated to DeLoach that there would probably be a decision in a week, and he advised DeLoach that the Court's decision " would not be definitive" and that the Court thought the case " should not be handled at [the] Supreme Court level." Id.; see also Compl. ¶ 15. DeLoach interpreted that statement to mean that the case would be remanded to the lower court. DeLoach Mem. 1. The Memorandum concludes by stating: " Pursuant to the Director's instructions, we are immediately checking to find out the identity of the judge who handled this matter in the lower court. A memorandum will be sent through on him just as soon as his identity is ascertained." Id. Finally, the DeLoach Memorandum includes an " addendum" asserting that Justice Fortas did not act improperly or violate ethical requirements by divulging information about the Black case.[2] Id. at 2. A copy of the Redacted Memorandum is attached to this memorandum as " Exhibit A."

Based on his previous research on Justice Fortas and the Hoover FBI, Plaintiff theorizes that the DeLoach Memorandum reflects an effort by the FBI to blackmail Justice Fortas into providing improper information about the Supreme Court's handling of the Black case. Pl.'s Cross-Mot. Summ. J. 30, ECF No. 13. Specifically, Plaintiff speculates that the redacted name is a person with whom Justice Fortas had some sort of illicit or improper relationship, and that DeLoach used the FBI's knowledge of that relationship to intimidate Justice Fortas into unethically disclosing details about the Black case. See id. at 30-33. Plaintiff supports that theory with various forms of historical evidence, including a documented encounter between Justice Fortas and DeLoach in which DeLoach shared with Fortas an allegation that Fortas had engaged in sexual acts with a male prostitute at a time before his nomination to the Supreme Court. Id.; see also Compl. Ex. 2, Tolson Letter, July 24, 1967.

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On August 22, 2012, after exhausting his administrative remedies, Plaintiff filed the original complaint in the instant litigation (the " Original Complaint" ) against the FBI and the U.S. Department of Justice (collectively, " the Government" ), in which Plaintiff asserts that the FBI's redaction of the DeLoach Memorandum was in violation of the FOIA and of the Administrative Procedure Act (" APA" ). The parties filed cross-motions for summary judgment and, on August 27, 2013, the Court denied the motions without prejudice, finding there to be insufficient evidence in the record for the Court to determine whether any of the FOIA's exemptions to disclosure apply. See Defs.' Mot. Summ. J. 1, ECF No. 9; Pl.'s Cross-Mot. Summ. J. 1; Order, Aug. 27, 2013, ECF No. 17. The parties subsequently filed supplemental motions for summary judgment, which are ripe for resolution. See Defs.' Suppl. Mot. Summ. J. 1, ECF No. 23; Pl.'s Renewed Mot. Summ. J., ECF No. 27.

Then, with the supplemental motions still pending, Plaintiff was granted leave to file a supplemental complaint regarding an additional alleged FOIA violation that arose during the course of the litigation (the " Supplemental Complaint" ). Suppl. Compl., ECF No. 30. The Supplemental Complaint addresses the FBI's handling of a second FOIA request filed by Plaintiff on October 19, 2012. That FOIA request sought the contents of " FBI File No. 62-HQ-110654," which is the file in which the DeLoach Memorandum is located, and, according to the FBI, is the background check file for the individual whose name is redacted from the DeLoach Memorandum. The FBI acknowledged receipt of Plaintiff's FOIA request by letter dated October 24, 2012, but it did not otherwise respond to the request until Plaintiff filed the Supplemental Complaint, at which point the FBI categorically withheld the file by letter dated December 9, 2013. See Pl.'s Mot. Leave File Suppl. Compl. Ex. B., Request Confirmation, Oct. 24, 2012, ECF No. 21-2; Pl.'s Mot. Leave File 2nd Suppl. Compl. Ex. 1, FOIA Denial Letter, Dec. 9, 2013, ECF No. 36. The Court then granted Plaintiff leave to add a second FOIA claim to the Supplemental Complaint based upon the Government's alleged failure to release reasonably segregable, nonexempt material from the requested file. See Order, Jan. 28, 2014, ECF No. 37. The parties have filed cross-motions for summary judgment on the claims in the Supplemental Complaint, and those motions are also now ripe for resolution. See Defs.' 2nd Suppl. Mot. Summ. J. 1, ECF No. 35; Pl.'s 3rd Mot. Summ. J. 1, ECF No. 38.

In an effort to resolve the pending sets of cross-motions for summary judgment, the Court ordered the Government to submit an unredacted version of the DeLoach Memorandum for in camera review. Order, Apr. 23, 2014, ECF No. 41. The Court further requested a supplemental affidavit and document index describing more precisely the basis for withholding the documents that are the subject of the second FOIA request. Id. After reviewing those submissions, the Court also ordered an in camera review of FBI File No. 62-HQ-110654 (hereinafter, the " Withheld File" ), as well as a response from Plaintiff to the Government's supplemental submissions. Order, May 29, 2014, ECF No. 48. Finally, the Court ordered an ex parte hearing with counsel for the Government, which was held on June 27, 2014. Order, June 19, 2014, ECF No. 51. In advance of the hearing, Plaintiff submitted proposed questions for the Court to ask the Government, which the Court took under advisement. Pl.'s Statement, June 26, 2014, ECF No. 52. The entire matter is now ripe for disposition.

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II. THE FREEDOM OF INFORMATION ACT

Under the FOIA, " any agency, upon any request," must " make records promptly available to any person." ACLU of N.J. v. FBI, 733 F.3d 526, 531 (3d Cir. 2013) (quoting 5 U.S.C. § 552(a)(3)(A)) (internal quotation marks omitted). The purpose of the statute is " to facilitate public access to Government documents," and the statute reflects " a general philosophy of full agency disclosure." Manna v. U.S. Dep't of Justice, 51 F.3d 1158, 1163 (3d Cir. 1995) (internal quotation marks omitted); see also United States Dep't of State v. Ray, 502 U.S. 164, 173, 112 S.Ct. 541, 116 L.Ed.2d 526 (1991) (" The statute was designed 'to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny.'" (quoting Dep't of Air Force v. Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976))). As such, there is a " strong presumption in favor of disclosure." Ray, 502 U.S. at 173.

But despite the strong presumption in favor of disclosure, public access to government information is not " all encompassing." Sheet Metal Workers Int'l Ass'n, Local Union No. 19 v. U.S. Dep't of Veterans Affairs, 135 F.3d 891, 897 (3d Cir. 1998) (internal quotation marks omitted). In particular, the FOIA exempts nine categories of documents from its broad disclosure requirements. See 5 U.S.C. § 552(b); United States DOJ v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 755, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989). Most relevant here are Exemptions 6 and 7(C), which are described in depth below. Put simply, Exemption 6 exempts from disclosure " personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(6). Exemption 7(C) " excludes records or information compiled for law enforcement purposes, 'but only to the extent that the production of such [materials] . . . could reasonably be expected to constitute an unwarranted invasion of personal privacy.'" Reporters Comm., 489 U.S. at 756 (quoting § 552(b)(7)(C)) (alterations in original). Once triggered, both exemptions require courts to " balance the public interest in disclosure against the interest Congress intended the exemption to protect." United States DOD v. FLRA, 510 U.S. 487, 495, 114 S.Ct. 1006, 127 L.Ed.2d 325 (1994) (alteration omitted).

When assessing whether a record is covered by one of those exemptions, courts must keep in mind that " whether an invasion of privacy is warranted cannot turn on the purposes for which the request for information is made." Id. at 496 (quoting Reporters Comm., 489 U.S. at 771) (emphasis omitted). As the Supreme Court has repeatedly explained, " Congress 'clearly intended' the FOIA 'to give any member of the public as much right to disclosure as one with a special interest [in a particular document].'" Reporters Comm., 489 U.S. at 771 (quoting NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975)) (alteration in original). Therefore, except in cases involving a claim of privilege, " the identity of the requesting party has no bearing on the merits of his or her FOIA request." Id. The Supreme Court has further cautioned lower courts to remember " that once there is disclosure, the information belongs to the general public." Nat'l Archives & Records Admin. v. Favish, 541 U.S. 157, 174, 124 S.Ct. 1570, 158 L.Ed.2d 319 (2004). " There is no mechanism under [the] FOIA for a protective order allowing only the requester to see whether the information

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bears out his theory, or for proscribing its general dissemination." Id.

Finally, because of the presumption favoring disclosure, judicial review of an agency decision to withhold records differs from review of other agency actions, which generally " must be upheld if supported by substantial evidence and not arbitrary or capricious." Reporters Comm., 489 U.S. at 755. The FOIA adopts a more rigorous form of judicial review, " expressly plac[ing] the burden 'on the agency to sustain its action' and direct[ing] the district courts to 'determine the matter de novo.'" Id. (quoting 5 U.S.C. § 552(a)(4)(B)). The Third Circuit has held that an agency can meet its burden " by filing affidavits describing the material withheld and detailing why it fits within the claimed exemption." Manna, 51 F.3d at 1163. If those affidavits " describe the withheld information and the justification for withholding with reasonable specificity, demonstrating a logical connection between the information and the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith," then the agency is generally entitled to summary judgment. Id. at 1163-64 (quoting Am. Friends Serv. Comm. v. Dep't of Defense, 831 F.2d 441, 444 (3d Cir. 1987)). If a district court determines that the agency's showing is inadequate to meet its burden, however, the court has jurisdiction " to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant." 5 U.S.C. § 552(a)(4)(B).

III. FACTUAL BASIS FOR THE COURT'S ANALYSIS

Before evaluating whether an asserted exemption to disclosure applies, a district court must ensure that it has an " adequate factual basis" to make an informed determination. McDonnell v. United States, 4 F.3d 1227, 1242 (3d Cir. 1993). In most FOIA cases, there is an inherent imbalance in the litigation, as " the party seeking disclosure does not know the contents of the information sought," and so is " helpless to contradict the government's description of the information or effectively assist the trial judge." Davin v. United States DOJ, 60 F.3d 1043, 1049 (3d Cir. 1995). To correct that " asymmetrical distribution of knowledge," courts generally require the agency to submit public affidavits, often referred to as a Vaughn index,[3] that " establish a detailed factual basis for application of the claimed FOIA exemptions to each of the documents withheld." Id. at 1049-50. Ideally, such public affidavits will " 'permit adequate adversary testing of the agency's claimed right to an exemption,' and enable 'the District Court to make a rational decision whether the withheld material must be produced without actually viewing the documents themselves." McDonnell, 4 F.3d at 1241 (quoting King v. U.S. Dep't of Justice, 830 F.2d 210, 219, 265 U.S.App.D.C. 62 (D.C. Cir. 1987)).

If the public affidavits prove insufficient for the court to make a reasoned determination, however, the FOIA grants district courts the authority to order in camera inspection of agency records. 5 U.S.C. § 552(a)(4)(B) (providing that the court " may examine the contents of such agency records in camera to determine

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whether such records or any part thereof shall be withheld" ); see also Lame v. U.S. Dep't of Justice, 654 F.2d 917, 922 (3d Cir. 1981) (" In both the ordinary and the exceptional case, in camera affidavits and submissions are authorized and the district court may resort to them in arriving at its ultimate determination." ). The court may also proceed ex parte to the extent necessary to protect against unintended disclosure of withheld information. Long v. IRS, 742 F.2d 1173, 1182 (9th Cir. 1984); see also Alexander v. FBI, 192 F.R.D. 37, 40 (D.D.C. 2000) (explaining that the circumstances required the court to " review[] the entire investigative file in camera, as well as conduct[] an ex parte, in camera hearing with the government regarding the applicability of the law enforcement privilege to [the] documents" ).

In this case, the FBI has submitted as its Vaughn index several declarations of David M. Hardy, the FBI Section Chief of the Record/Information Dissemination Section, Records Management Division (the " Hardy Declarations" ). Because of the unique factual circumstances of this case, described below, those declarations proved insufficient to enable the Court to make a determination as to whether the documents were properly withheld, and so the Court also ordered an in camera review of the documents and held an ex parte hearing [4] with counsel for the Government regarding the basis for the asserted exemptions. The information revealed through both the public disclosures and the in camera review is described below.

A. Public Declarations

The FBI submitted a total of four Hardy Declarations that describe the factual and legal bases for asserting the relevant FOIA exemptions. The first declaration, dated November 14, 2012, was submitted as an exhibit to the Government's initial motion for summary judgment, and it addresses the redactions in the DeLoach Memorandum. Ex. to Defs.' Mot. Summ. J., 1st Hardy Decl., ECF No. 10. The second declaration, dated September 26, 2013, was submitted along with a supplemental motion for summary judgment in response to the Court's order denying the initial set of cross-motions without prejudice and requesting further explanation from the government. Ex. to Defs.' Suppl. Mot. Summ. J., 2nd Hardy Decl., ECF No. 23. That declaration again addresses the Redacted Memorandum. The third declaration, dated December 16, 2013 (and inaccurately labeled the " Second Declaration of David M. Hardy" ), was submitted as an exhibit to the Government's motion for summary judgment on the claims in the Supplemental Complaint. Ex. to Defs.' 2nd Suppl. Mot. Summ. J., 3rd Hardy Decl., ECF No. 35. Although it ostensibly addresses the bases for withholding FBI File No. 62-HQ-110654, it is almost identical to the second declaration, which perhaps explains the mislabeling of the document. Finally, the fourth declaration, dated May 23, 2014, was submitted in response to the Court's order requesting a " supplemental Vaughn Index that describes each of the withheld documents in FBI File Number 62-HQ-110654 and provides a particularized description of how each document falls within a statutory exemption." Order, Apr. 23, 2014, ECF No. 48. It describes more precisely the bases for categorically withholding the Withheld File and includes an

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index of the withheld documents. 4th Hardy Decl., May 23, 2014.

The Hardy Declarations can be more concisely summarized as follows:

Date Submitted

Subject

Exemptions Asserted

First Declaration

November 14, 2012

The Redacted Memorandum

Exemption 6

Exemption 7(C)

Second Declaration

September 26, 2013

The Redacted Memorandum

Exemption 6

Exemption 7(C)

Third Declaration

December 16, 2013

The Redacted Memorandum and the Withheld File

Exemption 6

Exemption 7(C)

Fourth Declaration

May 23, 2014

The Withheld File

Exemption 6

Exemption 7(C)

Exemption 7(D)[5]

Despite those numerous submissions, however, the FBI provided the Court with few factual details regarding the bases for the redactions and the subject matter of the Withheld File. Indeed, the Government acknowledged as much during the ex parte hearing, explaining that the FBI worried that publicly disclosing even small amounts of information could result in improper disclosure of protected information. See Tr. Ex Parte Hr'g 19. Nonetheless, the FBI did provide the following relevant factual details in the first three Hardy Declarations:

o The redactions in the DeLoach Memorandum contain the name of a person who is not deceased. 1st Hardy Decl. ¶ 18.
o That person was the subject of a " background and security investigation" conducted by the FBI " at the request of the White House" to " assist in the protection" of President Lyndon B. Johnson. 2nd Hardy Decl. ¶ 8.
o The individual under investigation " was not a government official, but was someone who could reasonably be expected to have access to locales in close proximity to or ...

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