OPERATION CLAMBAKE: SCIENTOLOGY COURT FILES

Part of a public library containing court papers related to lawsuits involving Scientology in some way. Collected to help lawyers and critics of Scientology in future lawsuits from or against this cult. Please report back if this has been of help, or send new contributions to the collection. Thanks. Andreas Heldal-Lund (heldal@online.no)




    The FOUNDING CHURCH OF SCIENTOLOGY OF WASHINGTON, D. C. INC., Plaintiff,
                                       v.
               UNITED STATES MARSHALS SERVICE, et al., Defendants.
                              Civ. A. No. 80-1479.
               United States District Court, District of Columbia.
                                 Dec. 31, 1980.
  In an action brought pursuant to the Freedom of Information Act, the District
 Court, Norma Holloway Johnson, J., held that: (1) where report issued by
 Federal Bureau of Investigation concerned investigation undertaken pursuant to
 certain threats made against judge, who had valid interest in being able to
 converse candidly with FBI about circumstances surrounding such and without
 fear of subsequent public disclosure of the statements, and in view of fact
 that FBI agents and others had legitimate privacy interest in preserving
 secrecy of matters that could subject them to annoyance or harassment in either
 their official or private lives, circumstances dictated protection of privacy
 of investigation under Freedom of Information Act; (2) the report having been
 compiled under circumstances from which assurances of confidentiality might be
 reasonably inferred, the Act protected identities of the sources of information
 as well as the information itself; and (3) affidavits were insufficient to
 establish completeness of file search conducted by defendants in response to
 request addressed to United States Marshal for the District of Columbia under
 Freedom of Information Act.
  Defendants' alternative motion for summary judgment granted in part; motion to
 dismiss and alternative motion for summary judgment insofar as relating to
 adequacy of file search denied without prejudice; defense motion for
 protective order granted.

 [1] RECORDS
 Where report was compiled by Federal Bureau of Investigation acting in course
 of criminal investigation for law enforcement purposes, court was required, for
 purposes of suit under Freedom of Information Act, to ascertain whether there
 was privacy interest involved, and, if so, to balance privacy interest against
 public interest in disclosure.  5 U.S.C.A. s 552(b)(7)(C).

 [2] RECORDS
 Where report issued by Federal Bureau of Investigation concerned investigation
 undertaken pursuant to certain threats made against judge, who had valid
 interest in being able to converse candidly with FBI about circumstances
 surrounding such and without fear of subsequent public disclosure of the
 statements, and in view of fact that FBI agents and others had legitimate
 privacy interest in preserving secrecy of matters that could subject them to
 annoyance or harassment in either their official or private lives,
 circumstances dictated protection of privacy of investigators under Freedom of
 Information Act.  5 U.S.C.A. s 552(b)(7)(C).

 [3] RECORDS
 Where it had been found that report of Federal Bureau of Investigation was
 protected from disclosure under Freedom of Information Act as an investigatory
 record compiled for law enforcement purposes as to which there was privacy
 interest involved and where report was compiled under circumstances from which
 assurances of confidentiality might be reasonably inferred, the act protected
 identities of the sources of information as well as the information itself.
 5 U.S.C.A. s 552(b)(7)(C, D).

 [4] RECORDS
 Affidavits were insufficient to establish completeness of file search conducted
 by defendants in response to request addressed to United States Marshal for the
 District of Columbia under Freedom of Information Act.  5 U.S.C.A. s 552.
  *152 George T. Volsky, Washington, D. C., for plaintiff.
  Rebecca L. Ross, Asst. U. S. Atty., Washington, D. C., for defendants.
                               MEMORANDUM OPINION

  NORMA HOLLOWAY JOHNSON, District Judge.
  This matter is before the Court on the defendants' motion to dismiss or, in
 the alternative, for summary judgment, and defendants' motion for protective
 order.  The plaintiff has filed oppositions to both motions.
  This action was brought pursuant to the Freedom of Information Act, 5
 U.S.C. s 552 (1976) (FOIA).  By letter dated April 1, 1980, the plaintiff,
 through one of its members, requested that the U.S. Marshal for the District of
 Columbia provide it with all files, documents, memoranda, orders, or any other
 records under the control of or located in the physical office of the United
 States Marshals Service relating to the assignment of personnel to United
 States District Court Judge Charles Richey, while he was presiding over
 hearings in Los Angeles, California, in the case of United States v. Mary
 Sue Hubbard, D.C., 493 F.Supp. 202, during July 1979.  By letter dated May 14,
 1980, the U.S. Marshals Service responded that it had conducted a search of its
 files and could locate no documents pertaining to a personal security detail on
 Judge Richey while he was presiding over the hearing of the aforementioned
 case.  The letter further stated that their records indicated that two deputies
 from the District of Columbia office were assigned to the United States
 Marshals Office for the Central District of California for a court security
 detail, commencing July 1 and terminating July 23, 1979.  The letter listed
 three documents pertaining to the assignment, and stated that the documents
 were exempt from disclosure pursuant to Exemption Two of the Freedom of
 Information Act.  On May 20, 1980, *153 the requester appealed the
 defendants' denial of the requested documents.  The appeal was not processed in
 a timely fashion, and the plaintiff filed suit on June 13, 1980.
  Subsequent to the initiation of this action, defendants conducted a second
 search of their files, finding two additional documents potentially responsive
 to plaintiff's request.  One document which originated in the Federal Bureau of
 Investigation was referred to that agency for analysis.  In July 1980, the FBI
 denied access to this document based on Exemptions 7(C) and 7(D) of the FOIA.
  Contemporaneous with the filing of the motion to dismiss or, in the
 alternative, for summary judgment, defendants released the three documents
 which had been withheld from plaintiff pursuant to Exemption 2.  Defendants
 also released one of two documents discovered during the file search conducted
 after the plaintiff filed suit.  The defendants continue to withhold from the
 plaintiff one document, a nine-page FBI Investigation Report which is
 responsive to plaintiff's request, claiming that Exemptions 7(C) and 7(D) of
 the FOIA authorize their nondisclosure of this document.  However, defendants
 have submitted the report to the Court for in camera inspection.
  In support of their motion to dismiss or, in the alternative for summary
 judgment, defendants have submitted four affidavits, three of which pertain to
 the file searches conducted (Affidavits of Louis G. Villaescusa, Lawrence E.
 Fischer and Werner R. Koehler).  The fourth affidavit relates to the
 applicability of Exemptions 7(C) and 7(D) to the withheld document (Affidavit
 of John N. Phillips).  Defendants assert that Exemption 7(C), which authorizes
 the withholding of "investigatory records compiled for law enforcement purposes
 but only to the extent that the production of such records would ... constitute
 an unwarranted invasion of personal privacy", applies to the FBI report because
 there is no doubt that it is an investigatory record compiled for law
 enforcement purposes, and that since the report deals with an investigation
 surrounding a threat to Judge Richey's life, disclosure of the report would
 constitute an invasion of his privacy.  Defendants argue that if Judge Richey's
 interest in privacy is balanced against the public's very general interest in
 disclosure of the document, it is clear that the document should be withheld in
 its entirety.  Further, defendants assert that portions of the document are
 being withheld from the plaintiff because they contain the names and other
 identifying data of third parties and confidential sources whose privacy is
 entitled to protection.
  Defendants claim that Exemption 7(D) of the FOIA, which permits an agency to
 withhold "investigatory records compiled for law enforcement purposes but only
 to the extent that the production of such records would ... disclose the
 identity of a confidential source and, in the case of a record compiled by a
 criminal law enforcement authority in the course of a criminal investigation,
 or by an agency conducting a lawful national security intelligence
 investigation, confidential information furnished only by the confidential
 source", also applies to the FBI report, and is invoked to protect third
 parties and sources who gave information to the FBI in the course of the
 investigation.
  The plaintiff opposes the defendants' motion to dismiss or, in the
 alternative, for summary judgment on two different grounds.  First, the
 plaintiff asserts there is a genuine dispute as to the adequacy of the search
 conducted by defendants for documents responsive to plaintiff's request.
 Plaintiff has produced in the record of this case a document, which is
 apparently responsive to the FOIA request, entitled "Operations Order, Special
 Security for Federal Building, U.S. Courthouse, 312 N. Spring Street, Los
 Angeles, California 90012".  The document originated with the Federal
 Protective Service and is addressed to the U.S. Marshal, among others.  The
 plaintiff claims it obtained this document not from defendants, but from the
 originator, pursuant to a FOIA request.  Thus, plaintiff argues that
 defendants' failure to produce the document, or to explain why it was not
 *154 uncovered during the defendants' search of their files, raises a
 genuine issue as to the adequacy of the search conducted.  Plaintiff further
 contends that the fact the defendants found additional documents upon repeated
 searches raises the permissible inference that the searches were not thorough.
 The plaintiff maintains, moreover, that the affidavits submitted by defendants
 in support of their motion are totally inadequate and fail to meet the
 standards for agency affidavits as set forth in Weisberg v. United States
 Department of Justice, 200 U.S.App.D.C. 312, 627 F.2d 365 (1980).  Thus, the
 plaintiff contends that summary judgment must be denied because the defendants
 have failed to demonstrate the absence of disputed facts.
  The plaintiff also opposes the defendants' claim that Exemptions 7(C) and 7(D)
 of the FOIA are applicable to the FBI report which is withheld from the
 plaintiff.  The plaintiff contends that defendants have failed to establish
 that the report was compiled for law enforcement purposes, that there are
 legitimate privacy interests at stake, or that the public interest in the
 report is outweighed by any privacy interests that may exist.  The plaintiff
 further asserts that defendants have not made the requisite showing, pursuant
 to Exemption 7(D), that the information contained in the FBI report was
 received from sources external to the agency, that the information is
 confidential and that the agency promised to keep the information in
 confidence.
  The defendants have replied to the plaintiff's opposition to their motion
 maintaining that the search conducted pursuant to the FOIA request was thorough
 and complete and within the scope of the request, and that the affidavits
 submitted on this issue are sufficient to establish that the search was
 adequate.
  Upon consideration of the defendants' motion to dismiss or, in the
 alternative, for summary judgment, the plaintiff's opposition thereto, the
 entire record before the Court and upon in camera review of the FBI
 Investigation Report, the Court finds that the defendants have properly invoked
 Exemption 7(C) and 7(D) of the FOIA as to the FBI report, and the Court upholds
 the defendants' nondisclosure of the report to the plaintiff.  Accordingly, the
 Court will grant summary judgment in favor of defendants on this issue.
 However, the Court further finds that defendants have not demonstrated the
 absence of disputed facts as to the adequacy of the search of their files
 conducted in response to plaintiff's FOIA request, and the Court will deny
 summary judgment on this point.
  (1, 2) Upon in camera review of the FBI Investigation Report the Court finds
 that the Federal Bureau of Investigation is a criminal law enforcement
 authority and that the report at issue was compiled by the FBI acting in the
 course of a criminal investigation for law enforcement purposes [FN*].  Thus,
 the report is an investigatory record compiled for law enforcement purposes.
 To ascertain whether Exemption 7(C) of the FOIA is validly asserted, the Court
 must determine whether there is a privacy interest involved, and if so, balance
 the privacy interest against the public interest in disclosure, Department
 of the Air Force v. Rose, 425 U.S. 352, 370-73, 96 S.Ct. 1592, 1603-05, 48
 L.Ed.2d 11 (1975).  The Court finds there are legitimate privacy interests
 involved in this matter.  The entire report concerns an investigation
 undertaken pursuant to certain threats made against Judge Richey, who has a
 valid interest in being able to converse candidly with the FBI about the
 circumstances surrounding the threats and without fear of subsequent public
 disclosure of his statements.  Also, the FBI agents and others who investigated
 the matter have a legitimate privacy interest in preserving the secrecy of
 matters that could subject them to annoyance or harassment in either their
 official or private lives.  Lesar v. United States Department of Justice,
 636 F.2d 472, at 487 (D.C.Cir., 1980), slip opinion *155 at 29.  The
 circumstances present in this matter dictate the protection of the privacy of
 the investigators.  Furthermore, witnesses and others who provided information
 to the FBI have a valid concern for their privacy and should be free from
 anxiety that their names or other information by which they can be identified
 will be revealed to the public solely by virtue of their cooperation with law
 enforcement officials.  The Court is persuaded by its in camera review of the
 FBI report, and by the affidavit submitted by defendants that there are
 legitimate personal privacy interests involved in the report.  The Court is not
 persuaded by plaintiff's characterizations of the public interest in disclosure
 of the report.  The Court does acknowledge that under certain circumstances the
 public is concerned about the conduct of the Federal Judiciary and events that
 may affect that conduct.  However, the information contained in the FBI report
 is not of the type in which the plaintiff contends the public has an interest.
 Therefore, on balancing the privacy interests of the individuals against the
 public interest in disclosure, the Court finds the privacy interests far
 outweigh the public interest in this instance.  The Court concludes as a matter
 of law that the FBI Investigation Report is an investigatory record compiled
 for law enforcement purposes, the disclosure of which would constitute an
 unwarranted invasion of personal privacy.  The Court has carefully considered
 whether the report contains any reasonably segregable portions which can be
 released to the plaintiff.  While the Court cannot now reveal the nature of the
 information contained in the report without risking harm to the privacy
 interests it has determined are entitled to protection, the Court can state
 that the information is so intertwined that to release portions of the report
 could result in injury to those privacy interests.  Concluding that the report
 does not contain any reasonably segregable portions, the Court finds that
 Exemption 7(C) of the FOIA applies to the report in its entirety.

      FN* The investigation was instituted under 18 U.S.C. s 372, Conspiracy
     to injure or impede an officer.  (Affidavit of John N. Phillips).

  (3) The Court also finds as a matter of fact, that a substantial portion of
 the FBI Investigation Report consists of confidential information furnished
 only by confidential sources.  As a matter of law, since the report was
 compiled by a law enforcement authority in the course of a criminal
 investigation under circumstances from which assurances of confidentiality may
 be reasonably inferred,[FN**] Exemption 7(D) of the FOIA protects the
 identities of the sources of the information, as well as the information
 itself.  Church of Scientology v. U.S. Department of Justice, 410 F.Supp.
 1297, 1302 (C.D.Cal.1976), cited in Duffin v. Carlson, 636 F.2d 709, at 712
 (D.C.Cir., 1980).

      FN** Church of Scientology v. U.S. Department of Justice, 410 F.Supp.
     1297, 1302 (C.D.Cal.1976), quoting Committee on Government Operations &
     Committee on the Judiciary, 94th Cong., 1st Sess., Freedom of Information
     Act and Amendments of 1974 (P.L. 93-502, 88 Stat. 1561) at 230.

  (4) The Court has carefully examined the affidavits submitted by defendants
 in support of their claim that the search of their files was adequate.  To
 prevail on this issue the defendants must demonstrate there is no issue
 respecting their assertion that all requested documents in their possession
 have been uncovered.  The defendants' affidavits fail to make this showing.
 The Court of Appeals in this circuit has stated,
   (I)n adjudicating the adequacy of the agency's identification and retrieval
 efforts, the trial court may be warranted in relying upon agency affidavits,
 for these are equally trustworthy when they aver that all documents have been
 produced or are unidentifiable as when they aver that identified documents are
 exempt.  To justify that degree of confidence, however, supporting affidavits
 must be relatively detailed and nonconclusory and must be submitted in good
 faith.  Even if these conditions are met the requester may nonetheless produce
 countervailing evidence, and if the sufficiency of the agency's identification
 or retrieval procedure is genuinely in issue, summary judgment is not in
 order.  Founding Church *156 of Scientology v. NSA, 197 U.S.App.D.C. 305,
 317, 610 F.2d 824, 836 (1979) (citations omitted).
  The recent decision in Weisberg v. United States Department of Justice, 200
 U.S.App.D.C. 312, 627 F.2d 365 (1980) reflects the position in this circuit
 regarding the requirements of agency affidavits on this issue.  In Weisberg
 the court rejected agency affidavits which did not denote which files were
 searched or by whom, did not reflect any systematic approach to document
 location and did not provide information specific enough to enable the
 appellant to challenge the procedures utilized.  Weisberg v. United States
 Department of Justice, supra, 200 U.S.App.D.C. at 318, 627 F.2d at 371.  The
 court held that where the affidavit gave no detail as to the scope of the
 examination, it was insufficient as a matter of law to establish the
 completeness of the examination of the agency's files.  Id. 200 U.S.App.D.C.
 at 317, 627 F.2d at 370.
  The affidavits of Louis G. Villaescusa, Lawrence E. Fischer, and Werner R.
 Koehler are also insufficient to establish the completeness of the file search
 conducted by defendants.  They contain no indication of which files were
 searched, by whom, and do not reflect any systematic approach to document
 location.  The affidavit contain conclusory statements and refer only generally
 to searches conducted in various offices of the defendants.  The Court is not
 in a position to conduct a true de novo review of the adequacy of the search
 made by defendants.  Moreover, the plaintiff has succeeded in raising a genuine
 issue as to the adequacy of the search, pointing out that successive searches
 disclosed additional documents and the existence of one document that
 presumably should have been discovered but was not.  In light of these
 circumstances, the defendants' motion to dismiss or, in the alternative for
 summary judgment on this issue must be denied.
  The defendants have filed a motion for protective order requesting that the
 depositions of two agents of defendants not be taken until after plaintiff can
 demonstrate a need for discovery.  The defendants maintain in this motion that
 discovery is unnecessary, at least until the Court rules upon their motion to
 dismiss or, in the alternative, for summary judgment.  The plaintiff opposes
 the motion for protective order, contending that it has already shown there is
 a factual controversy surrounding the adequacy of the file search, and that it
 is entitled to discovery on this issue.
  Upon consideration of the defendants' motion for protective order, the
 plaintiff's opposition thereto, the entire record, and the decisions of this
 Court as contained in this memorandum opinion, the defendants' motion for
 protective order will be granted at this time.  However, the defendants are to
 file with the Court a detailed affidavit or affidavits which support(s) their
 assertions that the search of their files conducted in response to plaintiff's
 FOIA request was adequate.  In the preparation of the affidavits defendants
 should make note of the principles enumerated in this memorandum opinion.
  Upon receipt of defendants' submission, and after the plaintiff has had an
 opportunity to respond, the Court will again consider whether a factual issue
 exists as to the adequacy of the search.  If the Court finds the defendants'
 submission to be so lacking in detail and insufficient, as a matter of law to
 preclude dismissal or summary judgment, the Court will then allow the plaintiff
 to conduct discovery the nature and scope of which will be determined at a
 later date, when and if it becomes necessary and appropriate.
  Orders consistent with this memorandum opinion shall be entered.

End of file...