Records on cause of FBI probe will not be disclosed

Records on cause of FBI probe will not be disclosed

03/25/96

CALIFORNIA–A California businessman who says his former business partners caused the FBI to investigate him in order to gain leverage in defending his lawsuit against them cannot have records showing how the FBI probe was instigated, a federal appellate court ruled in early March.

Reversing a lower court, the U.S. Court of Appeals in San Francisco (9th Cir.) told Steven Schiffer he could not have the records because disclosure would intrude upon personal privacy and disclose the identity of a confidential source.

Once it is established that disclosure of information will jeopardize interests protected by the FOI Act, then the information is categorically exempt, the appeals panel said.

In 1987 Schiffer sued his former business partners including Thomas Sherwood over the control of two companies and ultimately accused Sherwood of numerous abuses including defamation, abuse of process and malicious prosecution. According to Schiffer, Sherwood concocted a murder-for-hire plot in which Schiffer had sought a “hit man” to kill Sherwood and his wife and had caused the FBI to investigate. In 1989 Schiffer filed a FOI request with the agency for the records and ultimately sued for them in federal District Court in San Francisco.

After several years, Schiffer and Sherwood reached a settlement that would keep Schiffer from bringing any further suits against Sherwood even for defamation, but Schiffer continued to press his FOI suit, saying he hoped to satisfy his own personal curiosity about the records in the FBI’s files.

In January 1994, the federal district judge, characterizing the case as a civil litigation grown “completely out of hand,” ruled after reviewing the FBI’s records in chambers that Schiffer could see them, with names of agents deleted, as long as he agreed not to disclose them to anyone else. The judge said that in the protracted litigation, everyone knew the bulk of the contents of the records.

The government appealed, however, insisting that the law did not allow release of information that would associate a named individual with a law enforcement investigation. The privacy and confidential source arms of the FOI Act’s law enforcement exemption (Exemption 7(c) and (d)) prohibited release to anyone, even Schiffer, it said.

The panel also rejected Schiffer’s arguments on appeal that the public has an interest in determining whether undue influence affected the FBI’s decision to investigate him, and in knowing what actions the government takes concerning them as private citizens. The public has a diminished interest in disclosure where there is no evidence of wrongdoing, the panel ruled. (Schiffer v. FBI; requester’s attorney: Joseph Burton, San Francisco)