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ROSENFELD v. UNITED STATES DOJ

March 29, 1991

SETH ROSENFELD, Plaintiff,
v.
UNITED STATES DEPARTMENT OF JUSTICE, et al., Defendants



The opinion of the court was delivered by: PATEL

 Plaintiff filed this action under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, to obtain documents from the files of the Federal Bureau of Investigation ("FBI"), with processing fees waived under 5 U.S.C. § 552(a)(4) (A). The matter subsequently was referred to a federal magistrate for evaluation of defendants' claims that certain documents were exempt from disclosure under FOIA. The case is now before this court to resolve objections by both plaintiff and defendants to the magistrate's report. Having reviewed the magistrate's report and considered the memoranda of the parties, for the following reasons, the court accepts, with minor modifications, the magistrate's rulings on individual documents; finds that documents in the Free Speech Movement file generated prior to January 19, 1965 satisfy the Exemption (b)(7) threshold showing of law enforcement purpose; finds that documents in the Free Speech Movement file generated January 19, 1965 and after do not meet the Exemption (b)(7) threshold and should be released in their entirety unless they qualify under a different exemption; and adopts the schedule for reprocessing and release of documents outlined below.

 BACKGROUND

 Plaintiff Seth Rosenfeld is a journalist and author currently employed by the San Francisco Examiner. His areas of specialty are government policy and constitutional rights of individuals. While at the Examiner and earlier, as a student journalist for the Daily Californian at the University of California, plaintiff wrote a number of articles focusing on the FBI's investigation, surveillance and infiltration of student political groups in the 1960s, including the Free Speech Movement ("FSM") and the anti-war movement. In 1982, plaintiff published a five-part series in the Daily Californian entitled "The Berkeley Files: 17 Years of FBI Surveillance in Berkeley." The series won several national journalism awards and was widely reprinted and reported.

 Plaintiff is currently gathering materials for a book on the FBI's role in and impact on the political climate of the University of California at Berkeley ("UCB") and the Berkeley community. Beginning in 1981, plaintiff made a series of requests under the Freedom of Information Act for the release of documents from FBI files. When the FBI failed to release the requested documents, and after exhausting his administrative remedies, plaintiff filed two suits under the FOIA's judicial review provision, 5 U.S.C. § 552(a)(4)(B).

 Through action number C-85-2247 MHP, plaintiff sought release of eight categories of documents related to his research. He requested FBI documents concerning: 1) Edwin W. Pauley, a former Regent of the University of California, well-known for his opposition to student protesters during the 1960s; 2) Clark Kerr, Chancellor of the Berkeley campus from 1952 to 1958 and president of the University of California system from 1958 to 1967; 3) the Free Speech Movement, a student protest group which existed during 1964 and 1965 at Berkeley and other U.C. campuses; 4) The Daily Californian, a U.C. Berkeley student newspaper which reported extensively on the Free Speech Movement, the anti-war movement, and other student activities during the 1960s; 5) Max Scherr, founder, editor and publisher of The Berkeley Barb, an "underground" newspaper which played a key role in the political life of Berkeley and the national student movement; 6) Marguerite Higgins, a Pulitzer Prize-winning journalist who wrote extensively about the student and anti-war movements at the University of California; 7) CACTUS, an FBI program monitoring the political activities of certain Berkeley residents; and 8) James Rector, who was killed by Berkeley Sheriff's officers during the People's Park protest in May 1969.

 In action number C-85-1709 MHP, plaintiff sought release of all information contained in file number 105-22479 of the San Francisco field office of the FBI. The information is related to "special operations" conducted as part of the FBI's Counter-Intelligence Program (COINTELPRO) investigating the activities of political organizations. The court consolidated the two actions.

 Defendants identified a total of 8,432 pages responsive to plaintiff's request in FBI files. Of those, 1,795 pages were released in their entirety; 4,985 pages were released with redactions; and 1,652 pages were withheld in full. In 1985, the court found, pursuant to the Act, that the information plaintiff received in the released materials would primarily benefit the general public and accordingly held that plaintiff was entitled to a fee waiver under 5 U.S.C. § 552(a)(4)(A). The court therefore ordered that all materials released to plaintiff be provided without duplication charges. Order, C-85-2247 MHP/C-85-1709 MHP, Oct. 29, 1985. The remaining dispute centers on whether defendants have properly withheld all or part of the 6,637 pages for which defendants claim statutory exemptions from disclosure.

 Following the release of materials not claimed to be subject to any of the statutory FOIA exemptions, the court referred the matter to Federal Magistrate Claudia Wilken to determine whether defendants properly applied the FOIA exemptions in withholding the remaining documents. In its Order referring the matter, this court instructed the magistrate:

 
1. To review in camera two hundred and fifty (250) documents plaintiffs will select per this order for Vaughn indexing *fn1" to determine whether the Freedom of Information Act ("FOIA") exceptions that the FBI applies are appropriately taken;
 
2. To review in camera two hundred (200) documents which will be selected by plaintiffs from the pool of documents the FBI has already Vaughn indexed to determine whether the FBI has applied the FOIA exceptions fairly;
 
3. To review on a random basis such other documents filed by defendant and indexed pursuant to Vaughn as the Magistrate deems necessary to satisfy herself that exceptions have been properly taken;
 
4. To evaluate whether the Vaughn indexes the FBI has prepared and will prepare as identified in this Order, and the materials they have released consequent to that indexing, conform to the requirements of Magistrate Wilken's July 25, 1986 order.

 Order, C-85-2247 MHP/C-85-1709 MHP (Consolidated), March 20, 1987.

 On February 3, 1988, the magistrate filed a report of her findings and recommendations. In the report, she concluded that for documents withheld pursuant to 5 U.S.C. § 552(b)(7), the question of whether a sufficient threshold showing of law enforcement purpose had been made with respect to the Free Speech Movement investigation was a close one, and she reserved that question for the court. In addition, in reviewing individual documents, the magistrate found that a substantial number of the exemptions claimed by defendants were not well-taken. She recommended that the court order defendants to release forthwith the documents which were not legitimately exempt and that defendants be required to reprocess the remaining documents in accordance with her rulings. The magistrate also suggested that plaintiff be given the opportunity to select a further 250 documents for indexing.

 Both plaintiff and defendants filed objections to the magistrate's report.

 DISCUSSION

 I. EXEMPTIONS TO THE FREEDOM OF INFORMATION ACT

 "Disclosure, not secrecy, is the dominant objective of the Act." Department of the Air Force v. Rose, 425 U.S. 352, 361, 48 L. Ed. 2d 11, 96 S. Ct. 1592 (1976). In enacting the Freedom of Information Act, 5 U.S.C. § 552 ("FOIA"), the goal of Congress was "'to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny.'" Id. (quoting Rose v. Department of the Air Force, 495 F.2d 261, 263 (2d Cir. 1974)). Accordingly, the basic policy embodied in FOIA is that agency documents are subject to disclosure unless they fall into one of the nine exemptions enumerated in the statute. See 5 U.S.C. § 552(b). The exemptions are to be construed narrowly, with the burden on the government to justify exemption. John Doe Agency v. John Doe Corp., 493 U.S. 146, 110 S. Ct. 471, 475, 107 L. Ed. 2d 462 (1989) (citations omitted); Church of Scientology of California v. United States Department of the Army, 611 F.2d 738, 742 (9th Cir. 1980).

 Exemption (b)(7) ("Exemption 7" or "(b)(7)") of the FOIA shields from disclosure "records or information compiled for law enforcement purposes" if disclosure would, or with respect to some exceptions could reasonably be expected to, result in one or more of six specified harms. 5 U.S.C. § 552(b)(7). *fn2" Information may be withheld under Exemption 7, therefore, only if both parts of the standard are met. First, a requested document must constitute a record or contain information compiled for law enforcement purposes. If it satisfies this threshold, the agency then must demonstrate that release of the material would threaten one or more of the six harms specified. Keys v. United States Dept. of Justice, 265 U.S. App. D.C. 189, 830 F.2d 337, 340 (D.C. Cir. 1987).

 Although many circuits, including the Ninth, accord deference to the judgment of law enforcement agencies such as the FBI in an Exemption 7 threshold determination, Binion v. United States Department of Justice, 695 F.2d 1189, 1193-94 (9th Cir. 1983), the agency must nonetheless establish a "rational nexus" between its law enforcement duties and the document for which Exemption 7 is claimed. Id. (citing Church of Scientology, 611 F.2d at 748). "The FBI must establish that its investigative activities are 'realistically based on a legitimate concern that federal laws have been or may be violated or that national security may be breached.'" Powell v. United States Dep't of Justice, 584 F. Supp. 1508, 1522 (N.D. Cal. 1984) (quoting Pratt v. Webster, 218 U.S. App. D.C. 17, 673 F.2d 408, 420-21 (D.C. Cir. 1982)). If an agency "was merely monitoring the subject for purposes unrelated to enforcement of federal law," a threshold showing has not been made. Lamont v. Department of Justice, 475 F. Supp. 761, 773 (S.D.N.Y. 1979); but cf. Curran v. Department of Justice, 813 F.2d 473, 475 (1st Cir. 1987) ("'investigatory records of law enforcement agencies are inherently records compiled for "law enforcement purposes" within the meaning of Exemption 7.'") (quoting Irons v. Bell, 596 F.2d 468, 475 (1st Cir. 1979)). *fn3"

 II. FREE SPEECH MOVEMENT

 A. Rational Nexus

 Plaintiff Seth Rosenfeld contends that the FBI has failed to make a threshold showing that its investigation of the Free Speech Movement and related groups or members was undertaken for a law enforcement purpose. Instead, plaintiff maintains that "the FBI's overriding purpose was to influence social policy and intervene in a controversial political dispute over the handling of the FSM by the UC Administration." Pl. Reply Memorandum re: In Camera Review, August 24, 1987, at 1.

 In response, defendants have submitted numerous declarations, including one classified declaration and a classified document index, in support of their position that the activities in question were within the scope of the FBI's authority to investigate law enforcement violations. At a hearing before this court in April 1988, defendants stated, in response to questioning by the court, that the Bureau was investigating possible violations of laws prohibiting seditious conspiracy and violence.

 To satisfy the Exemption 7 threshold, defendants cite the FBI's statutory authority to investigate potential violations of federal law governing espionage and related subversive activities, 18 U.S.C. § 2383 (Rebellion or insurrection), 18 U.S.C. § 2384 (Seditious conspiracy), 18 U.S.C. § 2385 (Advocating overthrow of Government), 50 U.S.C. §§ 781-98 (Internal Security Act of 1950) and §§ 841-44 (Communist Control Act of 1954). They also cite their authority to investigate civil disorders pursuant to various statutes, including 10 U.S.C. §§ 332 and 333 (Insurrection), 18 U.S.C. § 231 (Civil disorders), 18 U.S.C. § 245(b)(3) (Civil Rights-Federally protected activities) and 18 U.S.C. § 2101 (Riots). Id.

 In addition, defendants seek exemption for a number of documents regarding other groups, including the CPUSA, Socialist Workers Party, Italian-American Cultural Society, and UCB activities other than the FSM that were "channelized" into the FBI-San Francisco file because of references to FSM or related activities. Id.

 Defendants assert that the FBI investigation was based upon "evidence [that] indicated [the FSM] was heavily influenced, if not at times controlled, by individuals who were members of or affiliated with subversive organizations." Lieberman Decl. para. 7. Reference is made to "prominent figures in the FSM" who were members of CPUSA, the Socialist Workers Party and other organizations. However, only two individuals are named: Bettina Aptheker, a member of CPUSA and officer of the Berkeley W.E.B. DuBois Club, who is identified as "principal leader" of the FSM; and Art Goldberg, another FSM leader, who is described as a "publicly professed . . . Marxist" but not otherwise alleged to have been a member of or affiliated with any of the enumerated "subversive" organizations. Id.

 Defendants also cite the need to monitor the FSM because of the potential for civil disorder. They refer to the ongoing public demonstrations and acts of civil disobedience on campus, including the occupation of Sproul Hall at UCB, which resulted in the arrests of approximately 800 demonstrators. Id.

 The presence of a law enforcement purpose in the FSM investigation is a close question. Although defendants' supporting declarations are woefully short on specific detail and long on conclusory assertions, the court finds sufficient evidence that the investigation was opened and initially pursued for the legitimate purpose of ascertaining the role of subversive organizations in the FSM, and the potential for civil disorder in connection with the campus protest. Uncertainty about the origin and leadership of the organization and its role in campus civil disobedience suggest a "plausible basis" for undertaking the investigation. Pratt, 673 F.2d at 421 ("in order to carry out its functions, [a law enforcement agency] often must act upon unverified tips and suspicions based upon mere tidbits of information. A court, therefore, should be hesitant to second-guess a law enforcement agency's decision to investigate if there is a plausible basis for its decision.").

 However, the court will go on to consider whether the entire FSM file satisfies the law enforcement purpose threshold of Exemption 7.

 B. Disintegration of Rational Nexus

 Plaintiffs have argued that the FBI's concerns about subversive influences, seditious conspiracy and civil disorder were without foundation and, more important, that the FBI itself soon recognized that those concerns were without foundation. Plaintiffs have submitted previously released internal FBI documents and memoranda and other exhibits in support of their allegations. Based upon this evidence, the court makes the following observations:

 1) The FBI's memorandum of October 20, 1964 describes the Bureau's initial investigation of the FSM. Rosenfeld Decl., Ex. A, Attachment 1. It reports that the protests concerned a university rule barring on-campus political activity, and noted that campus groups, including the Campus Congress of Racial Equality, Young Republicans and Young Democrats set up information tables on campus to protest the rule. The memorandum lists the names of eight students suspended for violating the university rules and briefly describes their political activities. Virtually none of these activities indicate direct involvement with identified "subversive organizations"; they include such activities as Jacqueline Goldberg's role as a delegate from the UCB chapter of Women for Peace to a conference in Moscow in 1963; Mario Savio's participation in a sit-in demonstration at the Sheraton-Palace Hotel in 1964; and Arthur and Jacqueline Goldberg's role in organizing a campus demonstration to prove the inadequacy of fall-out shelters. In addition, the memorandum contains the names and brief descriptions of individuals identified at the Sproul Hall sit-in. The Appendices to the memorandum list and describe various nationwide and local groups suspected of subversive activities. Id. at 2.

 The information about demonstration participants was furnished to then-Governor Edmund ("Pat") Brown at his request. In reaction to the protests, the governor had informed the FBI of his intention that the Regents take more aggressive action to govern the university in order to prevent university governance by the faculty, which was perceived to be sympathetic to the protests. Rosenfeld Decl., Ex. A, Attachment 2 at 2.

 2) Following the arrests of 800 demonstrators at the Sproul Hall sit-in on December 3, 1964, there was massive picketing at all entrances to the campus and to campus buildings. The FBI's memorandum states that all picketing was peaceful, with no incidents reported. It further states that the names of the 800 demonstrators arrested at Sproul Hall would be obtained from confidential sources and "checked against the indices of the San Francisco office." Rosenfeld Decl., Ex. A, Attachment 4 at 6.

 3) Although the FBI targeted FSM leader Mario Savio for intensive investigation and surveillance, monitoring his participation in rallies and tracking his plane flights around the country, a memorandum dated December 10, 1964 states that "to date investigation has not developed any information indicating that Savio has been affiliated with any subversive groups; however, during the current demonstrations at Berkeley he has been been extremely close to and in frequent company of Bettina Aptheker"; Aptheker is identified by the author of the memorandum as "an active member of the CP [Communist Party] and leader in the DuBois Youth Club." Rosenfeld Decl., Ex. A, Attachment 6 at 3.

 4) The FBI undertook an investigation into the role of Professor Leon Wofsy in the Academic Senate, a majority of whose members supported the FSM and the student demonstrators. In a memorandum dated December 12, 1964, the Bureau concludes that Wofsy, who had been active in the CP prior to 1965, "has had only a minor part, if any, in promoting the unrest in connection with the student demonstrations," and that as one of the 1500 members of the Academic Senate, "[Wofsy] has exerted no more influence on final decisions than any other single faculty member." Rosenfeld Decl., Ex. A, Attachment 8 at 1, 3.

 Moreover, the December 12 memorandum reports that the demonstrations concerned an internal university matter, concluding that "three basic groups are involved in this campus dispute: administration, faculty and students." Id. at 2.

 5) Further background checks continued to reveal few demonstrators having affiliations with subversive groups, and no significant control or influence by such groups in the FSM. A letterhead memorandum dated December 14, 1964 reports that FSM leaders Mario Savio, Stephen Weissman and Suzanne Goldberg "have not been identified to date as participants in subversive groups." Rosenfeld Decl., Ex. A, Attachment 10 at 2. Again Bettina Aptheker is identified as an FSM leader and member of the Communist Party.

 Particularly revealing evidence of defendant's realization that the Free Speech Movement was not controlled by subversive organization and did not threaten imminent civil disorder is found in the final paragraph of the December 14, 1964 memorandum, which states:

 
This is another good example of a demonstration which, while not communist originated or controlled, has been exploited by a few communists for their own end. This whole affair points to the need for the Bureau to take all action within its jurisdiction to protect over 26,000 students at the University from a few hundred students containing within their ranks a handful of communists that would mislead, confuse and bewilder a great many students to their own detriment. While this memorandum concerns only the University of California at Berkeley, the same things could happen at other colleges across the land. We need to and will give continuous attention to this matter.

 Id. at 3 (emphasis added).

 6) A memorandum dated December 18, 1964 reports that despite repeated FBI directives to substantiate the involvement of subversive organizations in the FSM, "it would appear from the information available to date that although there were subversives who took part in the demonstrations that [sic] the demonstrations would have taken place anyway and no information has been received or developed to date that these demonstrations were suggested, operated, or controlled by the communist pary [sic]." Rosenfeld Decl., Ex. A, Attachment 15 at 7 (emphasis added). The memorandum also notes that the FSM was composed of many campus organizations, including the Campus College Republicans, Conservatives for an Open Campus, and Young Democrats. Id.

 7) This failure to substantiate that the FSM was influenced or controlled by subversive organizations, or that it posed a significant threat to civil order, is a continuing theme of subsequent memoranda. For example, an airtel dated January 8, 1965 reports that "sufficient information has not been developed to show a degree of influence by the Communist Party, either before or during the demonstrations," and that "subversive participation in the demonstrations did not have any bearing on the measure of success achieved. . . . The demonstrations would have taken place with or without any participation by subversives, because of the basic grievances." Rosenfeld Decl., Ex. A, Attachment 16 at 2.

 8) A memorandum dated January 19, 1965 sharply distinguished the campus FSM demonstrations from the 1960 San Francisco City Hall demonstrations protesting the House Un-American Activities Committee's issuance of subpoenas to witnesses with suspected communist affiliations. Rosenfeld Decl., Ex. A, Attachment 18 at 2. The memorandum noted that "in the current UC demonstration, communist affiliation or participation is not of primary concern to any of the demonstrators. . . . There were over 22 different organizations involved, raging [sic] in views from the far left to the far right . . . plus a large number of demonstrators who are not affiliated with any organization." It concludes: " No information has been reported from any confidential informants indicating that the CP played a direct role in the UC demonstrations." Id. (emphasis added).

 C. Conclusion

 Plaintiff Rosenfeld has submitted detailed documentary evidence indicating that the FBI conducted extensive investigation and surveillance of the Free Speech Movement and its participants from the FSM's inception. It also is clear that the FBI concluded on the basis of its own information that the FSM was concerned with a matter of internal university administration and not subversive causes; that the FSM was not controlled by subversive organizations; that the vast majority of the student leaders of the FSM were not affiliated with any of the enumerated subversive organizations; and that neither national security nor civil order were threatened by the campus protests.

 The evidence proffered by the plaintiff, consisting almost exclusively of documents from the FBI's own files, is highly persuasive on these issues. Thus the case at bar clearly is distinguishable from Keys v. United States Dept of Justice, 265 U.S. App. D.C. 189, 830 F.2d 337 (D.C. Cir. 1987). In Keys, the court upheld an Exemption 7 claim on a minimal showing of law enforcement purpose, finding that the plaintiff/requester had presented no evidence to refute, and had offered no reason to suspect, the government's colorable claim. Id. at 341-43.

 Although the court finds that the FBI investigation of the FSM was begun in good faith and with a plausible basis, it is also evident that the Bureau's continued investigation revealed that there was little or no "information sufficient to support at least 'a colorable claim' of [the investigation's] rationality." Pratt v. Webster, 673 F.2d at 420-21. This is clearly a case in which what began as a colorable claim based on scant evidence ceased to be a colorable claim as the evidence accumulated. What may have begun as a good faith effort to determine the extent of participation and influence in the FSM by subversive organizations appears to have become a case of routine monitoring of the FSM for intelligence purposes. Such routine monitoring, surveillance and information-gathering is not a permissible law enforcement purpose under Exemption 7. Lamont v. Dept. of Justice, 475 F. Supp. at 773-76.

 Attempting to identify a date certain on which the FBI's investigation lost its rational nexus and took on a nonqualifying purpose is like trying to identify the moment at which a once-hirsute man became bald. However, the court concludes that at least by January 19, 1965, *fn4" the FBI's initial law enforcement-related suspicions were demonstrably unfounded. The court thus will treat that date as a cut-off point for the scope of a law enforcement purpose exemption under (b)(7).

 Therefore, the court finds:

 (1) that the defendants have established a law enforcement purpose for FSM documents generated prior to January 19, 1965; and that all such documents or portions of documents may be withheld if they satisfy the second prong of the test for Exemption 7. However, the court also finds that plaintiff has provided persuasive evidence that by January 19, 1965, another, nonqualifying purpose came to drive the FBI's continued monitoring and investigation of the FSM.

 (2) Thus, all documents and portions of documents in the FSM file generated from January 19, 1965 forward do not satisfy the Exemption 7 threshold and may not be withheld unless they have been held to fall within the terms of another exemption.


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