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FOIA Appeal from Denial of Access to FBI COINTELPRO 

Files Regarding Professor Morris Starsky

As a matter of administrative discretion, the Department of Justice should grant the FOIA request of an 

attorney for the FBI’s COINTELPRO-New Left files regarding his client, a professor at Arizona 

State University and an active member of the Socialist Workers Party.

FOIA Exemption (7) is technically applicable to the withheld documents. However, like all of the 

exemptions, Exemption (7) is only discretionary, and should not be asserted unless such action is in 

the public interest. Assertion of the exemption is not recommended for these documents.

November 27, 1974

MEMORANDUM OPINION FOR THE ATTORNEY GENERAL

This memorandum transmits for your signature a proposed disposition of Mr. 

Kyman’s appeal, on behalf of his client, Professor Morris Starsky, from Director 

Kelley’s denial of Mr. Kyman’s request for access to all Federal Bureau of 

Investigation (“FBI”) records pertaining to his client. Fourteen of the documents 

are in COINTELPRO files and the rest are in investigatory files. Director Kelley’s 

denial was predicated on Exemptions (7), (1), and (5) of the Freedom of Information Act (“FOIA”), exempting from mandatory disclosure, respectively, 

investigatory files compiled for law enforcement purposes, material classified 

pursuant to executive order, and inter-agency or intra-agency memoranda involved 

in the government’s internal deliberations. 5 U.S.C. § 552(b)(7), (1) & (5). A response is due immediately.1

The proposed response affirms almost all of Director Kelley’s denial, but grants 

access as a matter of administrative discretion to some of the 14 documents 

pertaining to Professor Starsky generated as part of the COINTELPRO-New Left 

program.

I. Documents at Issue

Mr. Kyman has requested access to all Bureau files and records pertaining to 

his client and is especially interested in any communication between the Bureau 

and the Board of Regents of the University of Arizona. In addition to the 14 

documents pertaining to Professor Starsky in the COINTELPRO-New Left files, 

he is the subject of four conventional FBI investigatory law enforcement files. We 

 

1 At the request of the Bureau the original due date of September 16, 1974 was extended to October 

15, 1974 by letter dated September 11, 1974. A copy of this extension letter is attached to Mr. Kyman’s 

appeal letter of August 13, 1974. The due date was further extended to November 15, 1974 by letter of 

this Office dated October 21, 1974. On November 15 I advised Mr. Kyman by telephone that a positive 

response would soon be forthcoming.
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recommend that access to all of these be denied on the basis of Exemptions (7) 

and (1).

With regard to the 14 COINTELPRO documents, we recommend withholding 

four of them in their entirety on the basis of Exemptions (1), (7), and (5). For 

another four, we recommend release with deletions of material that either can be 

considered outside the scope of Mr. Kyman’s request or whose release would 

either constitute an unwarranted invasion of personal privacy of individuals other 

than Mr. Starsky (Exemption (6)) or jeopardize FBI sources or informants 

(Exemption (7)). The remaining six documents we recommend making available 

without deletions.

Among the COINTELPRO documents, the most serious difficulty is presented 

by the anonymous letter addressed to the Arizona State University (“ASU”) 

Faculty Committee on Academic Freedom and Tenure, which was conducting 

hearings on Professor Starsky’s continued tenure as a faculty member. It was 

signed “a concerned alumnus” by an FBI agent with the prior approval of the 

Director; it was designed to neutralize Starsky as an active member of the Socialist 

Workers Party, by discrediting him in his academic community.

The letter related as true an alleged incident in which Professor Starsky, his 

wife, and two male associates invaded the apartment of a student co-worker and 

threatened to beat him unless he returned certain socialist material he had borrowed. It went on to characterize the incident as evidence of the totalitarian nature 

of Professor Starsky’s academic socialism, analogous to that advocated by 

Himmler or Beria. It suggested that if Starsky were not insulated by his position at 

the University, he would have been properly punished for this conduct.2

The following subsequent events are relevant to the gravity with which this 

letter must be regarded: The Committee to which the letter was addressed did not 

recommend Starsky’s dismissal, but the University’s Regents overrode that 

decision. It is uncertain whether the letter or its contents were considered by the 

Regents.3 Starsky sued in federal court to be reinstated, in which suit he was 

 

2 We disagree with the Bureau’s characterization of the contents of this letter as “factual.” Although 

the narrative was taken from the Bureau’s substantive subversive investigatory file on Professor 

Starsky, the incident described is only documented by the ASU student’s complaint to the local police. 

This complaint was voluntarily dropped, and there is no proof that the incident actually took place as 

alleged. Furthermore, the letter questions Professor Starsky’s competence and fitness as a University 

employee because of the qualities evidenced by the alleged incident. This judgmental conclusion can in 

no way be considered “factual.”

3 The Bureau’s memorandum asserts that the Regents fired Starsky “for reasons unrelated to the 

anonymous letter.” This is true, if it refers to the reasons which the Regents expressed. It is also 

technically true if it refers to the “primary reason” which the court in Starsky v. Williams found to have 

been the true principal motivation of the Regents—namely, Starsky’s expression of unpopular views. 

353 F. Supp. 900, 927 (D. Ariz. 1972). But on the basis of the limited information we now possess, it is 

impossible to tell what effect the letter, or secondhand accounts of the letter, might have had on the 

Regents’ view of the case. In any event, regardless of whether there was any direct or indirect effect 

upon the firing, the matter would seem sufficiently serious if we merely accept the Phoenix agents’ 
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375

represented by the same lawyer who has made the present FOIA request in his 

behalf. The suit was a total success, the court finding that the Regents’ action was 

intended to repress Starsky’s free speech and violated his First Amendment rights. 

Starsky v. Williams, 353 F. Supp. 900 (D. Ariz. 1972).*

II. Applicability of Exemption (7) to the 14 COINTELPRONew Left Documents

The principal basis on which it might be asserted that the 14 COINTELPRONew Left documents can be withheld is Exemption (7), which protects “investigatory files compiled for law enforcement purposes.” Pub. L. No. 90-23, 81 Stat. 54, 

55 (1967) (adding 5 U.S.C. § 552(b)(7)). We do not find any basis for the 

applicability of other exemptions asserted by the FBI, a matter which we will 

discuss below.

In our view, it can be maintained that Exemption (7) is applicable, and such a 

position is consistent with the action you took previously in affirming the denial of 

most COINTELPRO documents to Fred Graham of CBS News. Such a position 

risks reversal by a judicial finding that the “investigatory files” exemption does 

not apply to files compiled for intelligence purposes;4 or that the “investigatory 

files” exemption is not a “blanket” exemption, applying to all documents contained within the applicable file, whether or not they individually are prepared for 

law enforcement purposes.

Because of considerations discussed below, we think the risks of a judicial 

finding that Exemption (7) is not applicable are much higher in this case than in 

Graham; as will also be discussed below, it may be a reversible abuse of the 

discretion conferred by the Exemption to withhold the documents in this case. 

Nonetheless, it is our position that the Exemption is technically applicable.

III. Advisability of Asserting Exemption (7)

Like all of the exemptions, Exemption (7) is only discretionary, and should not 

be asserted unless in your opinion such action is in the public interest. I cannot 

recommend such an exercise of your discretion in the present case.

 

own evaluation that the letter succeeded in thoroughly discrediting Professor Starsky in the academic 

community.

* Editor’s Note: The district court’s ruling in Starsky v. Williams was affirmed in part, reversed in 

part, and remanded for further proceedings, 512 F.2d 109 (9th Cir. 1975).

4 At the time you considered the Graham appeal, the D.C. district court had already so held, in Stern 

v. Richardson, 367 F. Supp 1316 (D.D.C. 1973). Since that time, the same court has reaffirmed this 

position. Black v. Sheraton Corp., 371 F. Supp. 97 (D.D.C. 1974).
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A. Policy Considerations

In the last analysis, the only policy reason for withholding most of the requested documents is to prevent a citizen from discovering the existence of possible 

misconduct and abuse of government power directed against him. In my view, this 

is not only no reason for asserting the exemption; it is a positive reason for 

declining to use it, even where other reasons for asserting it exist. The obtaining of 

information of this sort is perhaps the most important reason for which the 

Freedom of Information Act exists.

B. Practical Considerations

Even if you are able to sustain the denial in this case in the courts (which is far 

from certain and perhaps unlikely), the Freedom of Information Act revision 

recently passed would require the documents to be provided as soon as a new 

request is made under the newly enacted legislation. Pub. L. No. 93-502, § 2(b), 

88 Stat. 1561, 1564 (Nov. 21, 1974) (amending 5 U.S.C. § 522(b)(7)). We believe 

that the principal basis for withholding COINTELPRO documents of this type 

under the new legislation will be the “privacy” provision of the revised Exemption 

(7) (5 U.S.C. § 522(b)(7)(C))—which is unavailable here because it is the subject 

himself who is making the request.

Moreover, despite the modification of Exemption (7) in the recent legislation, 

judicial rejection of our assertion of non-coverage under the present law might well 

be based upon such a ground that it would impair our position with respect to 

COINTELPRO files when the new legislation becomes effective. For although 

under the new law Exemption (7) is eliminated as a files exemption, the specific 

bases for non-disclosure which the new Exemption (7) provides still apply only to 

“investigatory” records. It is only with respect to an “investigatory” record that 

withholding will be able to be supported on the basis of disclosure of investigative 

techniques (the new Exemption (7)(E), 5 U.S.C. § 552(b)(7)(E)) or disclosure of the 

identity of a confidential source (the new Exemption (7)(D), id. § 552(b)(7)(D)). 

Thus, if we provoke a judicial decision to the effect that COINTELPRO records are 

not records compiled for investigative purposes, we have substantially impaired our 

position.

The chances of losing the present case in the courts are immensely greater than 

were the chances of losing the Graham request. We are, first of all, dealing with a 

requestor who has already filed and won a law suit dealing with the filing of these 

documents. Starsky v. Williams, 355 F. Supp. 900 (D. Ariz. 1972). The lawyer 

who represented him in that suit is representing him in this appeal. It is in our view 

certain that he will sue if the appeal is denied.

In the Graham request, since only “program” files were requested, it would 

have been possible to litigate the denial on a relatively abstract level, arguing that 

counter-intelligence programs, as programs, are a necessary form of preventive 
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377

law enforcement. There was a fair chance that this line of defense could have 

avoided any judicial receptivity to the suggestion that the documents in question 

should be examined in camera. In the present case, by contrast, there is a very 

specific, concrete set of actions which is the subject of the inquiry. It is unimaginable that a court would sustain our denial without looking at the documents in 

question. It is further unimaginable that having looked at the documents, it would 

fail to find some way to hold against us—perhaps by denying the “investigative” 

character of all COINTELPRO activities, with the adverse effects described 

above.

IV. Availability of Other Exemptions

Although our recommendation is not based upon the unavailability of exemption in this case, but rather on the undesirability of asserting it, it is nevertheless 

pertinent to discuss several other exemptions which the FBI memorandum asserts 

to be applicable. The Bureau asserts the applicability of Exemption (2), covering 

documents “related solely to the internal personnel rules and practices of an 

agency.” 5 U.S.C. § 552(b)(2). The assertion of the applicability of that exemption 

in a case similar to this was specifically rejected by the D.C. district court in the 

Stern case. 367 F. Supp. at 1319–20. It has generally been rejected in areas other 

than those which would involve disclosure of the government’s “play book.” See, 

e.g., Cuneo v. Laird, 338 F. Supp. 504 (D.D.C. 1972), rev’d and remanded in part,

484 F.2d 1086 (D.C. Cir. 1973); Hogan v. United States, --- F. Supp. --- (S.D. Fla. 

1974).*

The Bureau’s memorandum further asserts the possible applicability of Exemption (3), which permits the withholding of documents pertaining to matters 

“specifically exempted from disclosure by statute.” 5 U.S.C. § 552(b)(3). It relies 

for this on the general statute prohibiting communication of material “relating to 

the national defense” which “could be used to the injury of the United States or to 

the advantage of any foreign nation.” 18 U.S.C. § 793(d). Although there may be 

some COINTELPRO documents which may meet this description, the 14 

documents involved in the present appeal are assuredly not among them. The mere 

fact that Professor Starsky was being investigated because he was active in the 

Socialist Workers Party—without any indication or suspicion that he obtained any 

defense secrets or had any connection whatever with foreign powers—is by no 

stretch of the imagination sufficient to render all the documents pertaining to his 

investigation documents “relating to the national defense.” And it is even less 

 

* Editor’s Note: We have not located the unpublished decision cited here, but it is likely from the 

case of James J. Hogan v. United States, No. 73-1385 (S.D. Fla.), which is cited in the Freedom of 

Information Act Source Book, S. Doc. No. 93-82 (1974). The Freedom of Information Act Source 

Book indicates that the plaintiff in Hogan was seeking “the Department of Justice Wiretap Manual” 

and that the court denied the government’s motion to dismiss in October 1973. Id. at 188.
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likely, if they should relate to the national defense, that they could be used to the 

injury of the United States or to the advantage of any foreign nation.

V. Recommendation

We recommend disclosure of those documents and portions of those documents 

from the COINTELPRO-New Left files pertaining to Professor Starsky which are 

enumerated and recommended for disclosure.*In particular, we recommend the 

release in their entirety of (a) the April 7, 1970 Airtel requesting authorization to 

write the anonymous letter to the members of the Committee on Academic 

Freedom and Tenure; (b) the anonymous letter sent to the members (the author of 

which is not an alumnus of the University); (c) the April 24, 1970 instruction to 

write the letter; (d) the May 12, 1970 acknowledgement of the authorization; and 

(e) the June 30, 1970 letter from Phoenix to headquarters commenting on the 

results of the “neutralizing” activity.

ANTONIN SCALIA

Assistant Attorney General

Office of Legal Counsel

 

* Editor’s Note: The memorandum referred here to an attachment listing the COINTELPRO-New 

Left files recommended for disclosure. That attachment was not preserved in our daybooks. It appears 

that some, if not all, of the listed files were ultimately released. See Michael Newton, The FBI 

Encyclopedia 322-23 (2003); James K. Davis, Spying on America: The FBI’s Domestic Counterintelligence Program 59-60 (1992); Nicholas M. Horrock, Files of F.B.I. Showed It Harassed Teacher, N.Y. 

Times, Jan. 29, 1975, at 12.