Court sees legitimate interest in Hoover’s personal files

D.C. CIRCUIT–A federal District Court in Washington, D.C., must actually read the “official and confidential” files of the late FBI Director J. Edgar Hoover to determine whether the privacy and other exemptions to the Freedom of Information Act apply, the U.S. Court of Appeals (D.C. Cir.) ruled in mid-April.

The court rejected the government’s claim that Hoover’s files, kept in his own office, were of “minimal” public interest and, at the appeals hearing in January, elicited an admission from the government’s attorney that the records demonstrated abuses of power “among the worst” in the history of the country.

The panel unanimously rejected the lower court’s grant of summary judgment to the government. Judge David Sentelle wrote for the panel that the request was “designed to disclose misconduct at the highest levels of the FBI.” The requester, British author Anthony Summers, “rightly expects” the court to carefully assess the public’s interest in the files, Sentelle wrote.

Prior to the appellate hearing, the panel ordered the government’s attorney to read the documents before the hearing or bring someone from the Justice Department who had done so.

Judge Laurence Silberman, concurring, noted that 25 years ago as acting Attorney General he had read the requested files, which he described as Hoover’s collections of “scandalous material on public figures to be used for political blackmail.” In weighing public and private interests, the documents as a group are of the “very highest public interest,” he said.

He also said that privacy interests in each case would differ. Certain “White House staffers and newspaper owners” investigated for political reasons “might be rather proud” of being targeted, he said. And although targets of the FBI’s “dirt-gathering activities” might have an overwhelming privacy interest, many of those persons are now dead.

Judge Stephen Williams, also concurring, said the FBI had not even checked whether persons whose privacy it invoked were alive or dead, raising questions about its reasonableness in invoking the privacy exemption because the FBI does not invoke the exemption to protect the interests of dead persons.

Summers wrote “Official and Confidential: The Secret Life of J. Edgar Hoover,” published in 1993. He had filed his FOI request with the FBI in 1986 for the files Hoover kept in his personal office. He sued for the records in 1987 and has continually tried to get more information on Hoover’s files.

The FBI processed about 18,000 pages of records, releasing some of the records but withholding many others under FOI exemptions protecting classified information (Exemption 1), personal privacy (Exemption 6), and law enforcement information (Exemption 7) to the extent that it would damage personal privacy, reveal confidential sources or make law enforcement techniques public. (Summers v. Department of Justice; counsel to Summers: James Lesar, Washington, D.C., and Dan Alcorn, Vienna, Va.)