Court allows author access to FBI documents

SECOND CIRCUIT–The author of “Down on the Killing Floor,” an historical account of race relations among packinghouse workers in Chicago’s Southside slaughterhouses, may now obtain documents the FBI withheld from him in the early 1990s as classified and as confidential source material while he was writing his book, which was published in 1997, a unanimous panel of the U.S. Court of Appeals in New York City ruled in late June.

However, the court allowed the agency to continue to invoke the law enforcement privacy exemption, even to protect newspaper clips in agency files, saying that a different standard prevails when privacy is asserted.

Eric Halpern, a lecturer in American History at University College London, filed Freedom of Information Act requests for the records in 1989 and 1990. He sued the agency in January 1994 in federal District Court in Buffalo after it withheld records from him.

The appeals panel reversed a lower court decision that the FBI could withhold records as classified, saying the FBI’s “boilerplate” affidavit of 37 pages failed to describe the reasons that particular documents were classified. Similarly, the panel rejected another agency affidavit saying it provided only “bare assertions” that sources had indeed been promised confidentiality. The panel noted that the FOI Act is an access statute requiring the government to withhold information only if it clearly shows that one of the Act’s exemptions applies.

However, the appeals panel allowed the FBI to invoke the privacy exemption for law enforcement records. The court noted that the FBI’s affidavits describing how records, including news clips, could intrude upon personal privacy were often vague, and that a more “generalized approach” is permitted in invoking the privacy exemptions to the FOI Act.

A “reasonable” level of specificity varies depending upon context, the court said in describing why it would demand specific explanations of how disclosure could harm national security before allowing records to be withheld for those reasons, but allow broad categorizations of records to be withheld for privacy reasons.

The appeals panel sent the case back to the federal District Court for further assessment of the classification and confidential source claims.

(Halpern v. FBI; author’s attorney: Ralph Halpern, Buffalo)