holding that “belated classification of certain documents” relating to the assassination of Dr. Martin Luther King, Jr., was insignificant and “did not undermine” the agency’s decision to classify such investigatory records compiled for law enforcement purposes as exempt from disclosure under FOIA exemption for a matter authorized to be kept secret by an executive order in the interest of national defense of foreign policy
How later courts described this case
- holding that “belated classification of certain documents” relating to the assassination of Dr. Martin Luther King, Jr., was insignificant and “did not undermine” the agency’s decision to classify such investigatory records compiled for law enforcement purposes as exempt from disclosure under FOIA exemption for a matter authorized to be kept secret by an executive order in the interest of national defense of foreign policy
- holding that although the “surveillance of [the FBI’s target] strayed beyond the bounds of its initial lawful security aim, that does not preclude the possibility that the actual surveillance documents and the Task Force materials that comment upon those documents may nevertheless contain information of a sensitive nature, the disclosure of which could compromise legitimate secrecy needs”
- recognizing that symbol source numbers “bear no relation to the substantive contents of the records,” are only valuable because they “control the internal and external dissemination of the actual identities of FBI informants,” are of no legitimate public interest, and, if released, “could lead to the exposure of confidential sources referred to in criminal investigative files ... ”
- holding that although the FBI’s surveillance “strayed beyond the bounds of its initial lawful security aim, that does not preclude the possibility that the actual surveillance documents and the Task Force materials that comment upon those documents may nevertheless contain information of a sensitive nature, the disclosure of which could compromise legitimate secrecy needs”
Written by the judges who cited it.
The opinion
BAZELON, Senior Circuit Judge,
concurring:
I write separately only to highlight two troubling issues.
First, appellant claimed that Exemption 1 of the Freedom of Information Act (FOIA), 5 U.S.C. § 552 (1976), should not apply to agency materials produced without a lawful purpose. As I read Judge Wilkey’s thoughtful opinion, this claim is not foreclosed in some future case. It is merely rejected here because 1) an affidavit adequately demonstrates the sensitivity of the contested materials and the legitimate security needs served by nondisclosure; and 2) there is no evidence of bad faith by the agency in its decision to withhold the documents. See Majority Opinion, at 483.
Second, appellant claimed that surveillance records generated through an agency investigation that strayed beyond its lawful scope should not be shielded from disclosure merely because they have been appended to the report of a subsequent, legitimate inquiry. See Majority Opinion, 487. Critical to the court’s rejection of this claim here is the fact that the original surveillance records are not themselves sought by appellant and the subsequent investigation does fulfill legitimate law enforcement purposes. Only notes describing the original documents, notes produced by investigators in the subsequent agency inquiry, were included in the requested appendix. Id. Thus, the court has not reached the question of whether a subsequent agency investigation can engulf and subsume records from a prior illegitimate agency action for the purposes of the Freedom of Information Act. This question points to a two-pronged risk. First, agencies may seek through a subsequent secret report to shield from public access materials that by themselves deserve no protection under FOIA. Secondly, the opposite danger could ensue: private parties may successfully obtain access to protected materials simply because they have been incorporated into a subsequent, unprotected agency document. Resolution of the tensions between these risks and the purposes of FOIA must await another day.