Ferguson v. FBI

774 F. Supp. 815

Herman Benjamin FERGUSON, Plaintiff, v. FEDERAL BUREAU OF INVESTIGATION, Defendant.

No. 89 Civ. 5071 (RPP).

United States District Court, S.D. New York.

September 13, 1991.

COPYRIGHT MATERIAL OMITTED

Center for Constitutional Rights, New York City by Joan P. Gibbs, for plaintiff Herman Ferguson.

Otto G. Obermaier, U.S. Atty. S.D.N.Y., New York City by Steven I. Froot, Asst. U.S. Atty., for defendant F.B.I.

OPINION AND ORDER

ROBERT P. PATTERSON, Jr., District Judge.

The Federal Bureau of Investigation ("FBI") moves pursuant to Rules 59 and 62 of the Federal Rules of Civil Procedure for reconsideration, clarification and a stay of this Court's prior Opinion and Order dated April 22, 1991 (familiarity with which is presumed). The FBI had moved for partial summary judgment as to the sufficiency of its production of documents dated 1963-70 which contained references to plaintiff Herman Ferguson ("Ferguson"), which the FBI had produced in heavily redacted form based on its interpretation of the statutory exemptions contained in the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 (as amended). After reviewing in camera an unredacted sample consisting of 89 documents, the Court denied the FBI's motion for partial summary judgment, partially granted the plaintiff's motion for reprocessing as specified in that Opinion, denied plaintiff's motions for another Vaughn index and discovery, ordered the FBI to produce certain documents in camera to the Court as specified in that Opinion and Order, and ordered it to release to plaintiff Herman Ferguson certain information from the 89 documents reviewed in camera by the Court. Ferguson v. FBI, 762 F.Supp. 1082 (S.D.N.Y.1991).

In response to the Court's order, the FBI submits a second in camera declaration of Special Agent Joseph P. Smith and a public declaration of Special Agent Smith, both dated May 6, 1991, and makes the instant motions.

The Court notes that in its prior opinion, it suggested that the government ascertain whether the Attorney General would consider applying in this case the Department of Justice policy enunciated in 1974, cited with approval in the legislative history, of waiving legal FOIA exemptions as to historic investigatory records over fifteen years old. 762 F.Supp. at 1085. In response, the government submits the statement by FBI Special Agent Smith,¹ who states that he has "consulted with personnel in the Office of Information and Privacy, to whom the Attorney General has delegated authority concerning Freedom of Information Act issues pursuant to 28 C.F.R. 0.23a, concerning a waiver of the exemptions ..." Special Agent Smith states that "Richard L. Huff, Co-Director of the Office of Information and Privacy has advised me that he has determined that there is insufficient historical interest in these records to warrant discretionary disclosure under 28 C.F.R. 50.8." Second Declaration of Joseph P. Smith ("Second Smith Decl."), May 6, 1991, ¶ 3.

28 C.F.R. 50.8, promulgated in 1984, represents a slight change of the 1974 policy of the Department of Justice. It provides as follows:

(a) The Department of Justice recognizes that portions of certain investigatory files compiled by the Department for law enforcement purposes, although of significant historical interest, are nevertheless exempt from mandatory disclosure under the Freedom of Information Act, 5 U.S.C. 552, as amended. In responding to requests pursuant to that Act, it is the general policy of the Department that such files that are more than fifteen years old and that are no longer substantially related to current law enforcement activities will be processed for disclosure subject to deletions to the minimum extent necessary to protect law enforcement efficiency, personal privacy, or other legitimate interests that would be implicated by the disclosure of such files.

28 C.F.R. 50.8.² 28 C.F.R. 50.8 states that, with respect to investigatory files over fifteen years old and no longer substantially related to current law enforcement activities, the general policy of the Department is that they "will be processed for disclosure subject to deletions to the minimum extent necessary to protect law enforcement efficiency, personal privacy, or other legitimate interests that would be implicated" by disclosure. The records in the files received here are well over 15 years old and not claimed to be substantially related to current law enforcement activities. The policy as enunciated is not stated to be conditional on the making of a prior determination that the records are of "sufficient" historical interest. Indeed, not only is the finding of "insufficient historical interest" not a ground for refusing to apply the stated governmental policy, it is impossible to reconcile with this Court's ruling in December, 1990:

The Court recognizes, in addition, that twenty-two years have elapsed since the conviction of plaintiff for the crime for which he is currently in prison; that the FBI internal document cited by the Court in its Opinion of October 24, 1989 describes non-investigative techniques involving prominent black nationalist figures in the 1960's which are contrary to our constitutional heritage; that plaintiff was a prominent black nationalist figure in those years; and that among African-American citizens in particular, as well as others, there is a strong public interest in determining whether any such non-investigative techniques were utilized in connection with the prosecution of plaintiff.

Ferguson v. FBI, 752 F.Supp. 634, 637 (S.D.N.Y.1990). The compelling public interest in governmental accountability and the urgent need for public confidence in the justice of criminal convictions and the fairness of the judicial system (all at issue here), particularly among African-American citizens, are beyond dispute and would be well served by as full a release as possible of the records compiled on Ferguson. The "significant historical interest" of these documents is evident in the many works of a historical nature which have been published on the subject of the FBI's role in American history and politics of the latter part of this century,³ especially the FBI's response to political dissent, and in the voluminous Final Report of the Senate's Select Committee to Study Governmental Operations With Respect to Intelligence Activities, Senate Report No. 94-755, 94th Cong., 2d Sess. (1976) (the "Church Committee Report"), cited in Lamont v. Dep't of Justice, 475 F.Supp. 761, 765 n. 5 (S.D.N.Y.1979). That Ferguson, a man in his seventies, is still alive and seeks these documents in order collaterally to attack his conviction of criminal charges does not lessen their historical significance, just as his sole personal need for disclosure may not be relevant to whether or not there is a public interest in disclosure. Cf. Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 109 S.Ct. 1468, 1480-81, 103 L.Ed.2d 774 (1989); United States Dep't of Justice v. Julian, 486 U.S. 1, 14, 108 S.Ct. 1606, 1614, 100 L.Ed.2d 1 (1988); Dep't of the Air Force v. Rose, 425 U.S. 352, 372, 96 S.Ct. 1592, 1604, 48 L.Ed.2d 11 (1976); NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975).

The United States Attorney is ordered to determine from the Assistant Attorney General in charge of the Office of Legal Policy, or from the acting Attorney General, whether the Attorney General will exercise his discretion to waive, in whole or in part, application of the exemptions to the documents here at issue, in view of their age, their lack of relationship to current law enforcement activities, and the Court's earlier findings that they are of substantial public interest.

In connection with this determination, the Court brings to the government's attention the decisions of the Appellate Division, Second Department, which upheld plaintiff's 1968 conviction by a panel divided 3 to 2 and the decision of the New York Court of Appeals which upheld plaintiff's conviction in a 4 to 3 decision. The government's attention is called also to:

(1) the following portion of the Appellate Division's dissenting opinion:

Later that day proof was adduced, over defense counsel's objection, that a prior list of people to be assassinated by RAM included Senator Robert Kennedy.... In our opinion it was seriously prejudicial error not to grant a mistrial and not to adjourn this trial until the fall. The shocking emotional impact of Senator Kennedy's assassination, the dramatic funeral service and the public mourning for his tragic end — all occurring while defendants were on trial for conspiring to assassinate two other prominent public figures — inevitably must have prejudiced the jurors against these defendants, particularly since Senator Kennedy himself was one of those originally marked for assassination by them....

People v. Ferguson, 32 A.D.2d 936, 938-39, 302 N.Y.S.2d 950, 953-54 (N.Y.A.D.2d Dep't 1969) (Benjamin and Martuscello, JJ., dissenting) (emphasis added).

2) the following language in the Appellate Division's majority opinion:

There is no disagreement on the part of the members of this court as to the admissibility of the testimony that Robert Kennedy's name was included on the assassination list. The evidence of the broader conspiracy bore on the motivation of the specific conspiracy with which defendants were charged ...

People v. Ferguson, supra, 32 A.D.2d at 937, 302 N.Y.S.2d at 951, aff'd, People v. Ferguson, 25 N.Y.2d 728, 307 N.Y.S.2d 228, 255 N.E.2d 567 (1969).

3) the unredacted news articles in Exhibit 2 to the First Superneau Decl., No. 3 of 8, Serials 23-37 of HQ XXX-XXXXXX, and Exhibit 3, No. 4 of 16, Serials 211-300 of NY 100-153704, containing reports that it was Howlette's trial testimony that Senator Kennedy and President Johnson were assassination targets of Ferguson.

4) the redacted first paragraph of page 31 of Document 49 of the in camera...