several points Bassiouni allegedly made during the speech, but does not contain the speech in its
entirety nor any direct quotations or context for the remarks.

By letter dated April 23, 2001, Bassiouni wrote to the FBI seeking amendment of the
records on the grounds that they were not accurate; they directly or indirectly described the
exercise of Bassiouni’s First Amendment activities; their continued maintenance was not
relevant to a legitimate statutory purpose; they were not timely; and portions of the record were
not complete. By letter dated February 6, 2002, the FBI issued a denial of Bassiouni’s request for
amendment, contending that the “records maintained in the FBI central records system are
exempt” from the amendment provisions of the Privacy Act. Although the letter noted that the
FBI nonetheless would consider the amendments offered by Bassiouni, the letter rejected
Bassiouni’s amendment request because “it is our judgment that the information is a reasonably
accurate, relevant, and timely account of the results of our investigation and is completely
relevant to the investigative purpose for which it was collected.”

On March 4, 2002, Bassiouni filed a written appeal from this denial of amendment.
Among other things, Bassiouni stated that the inclusion in his file of references to organizations
such as the PFLP and the PLO “constitutes an unconstitutional effort to implicitly link me to
these groups and to thereby damage my reputation solely through guilt by association.” On or
about September 25, 2002, Bassiouni received an undated letter from the FBI denying
Bassiouni’s appeal. The letter informed Bassiouni that he could send a “Statement of
Disagreement” to the FBI to be included in the file. There is no indication that Bassiouni ever
did so. The FBI continues to maintain the records in its Central Records System (“CRS”).

(Garrity Decl. J 4.)


words” contained in the statute is irrelevant given the details he provides. Krupkowski explains
that “in 1975 an investigative conclusion was reached that Mr. Bassiouni himself was not a
member of any terrorist organization.” (Krupkowski Decl. 6.) This conclusion clearly implies
that the material in the records, upon which this conclusion was based, was “compiled for law
enforcement purposes” — namely, determining if Bassiouni was a member of a terrorist
organization. Thus, the records are exempt from subsection (d)’s amendment requirements.
Bassiouni argues that even if the records are exempt from subsection (d), they are not
exempt from the standards set forth in (e)(5). Bassiouni points out, correctly, that subsection (k)
of the Privacy Act does not permit an agency to exempt its records from subsection (e)(5). See 5
US.C. § 552a(k) (“The head of an agency may promulgate regulations . . . to exempt any system
of records from subsections (c)(3), (d), (e)(1), (e)(4)(G), (A), and (1) and (f) of this section if the
system of records is — . . . (2) investigatory material compiled for law enforcement purposes.”).
However, it does not follow that an agency can “simply bypass the statutory prohibition on
exempting law enforcement records from subsection (e)(5) by exempting itself from subsection
(d).” (PI. Resp., at 12.) An agency that exempts itself from subsection (d) still may be sued for
damages by an individual for (e)(5) violations if the agency makes any “determination . . .
adverse to the individual” on the basis of such records (giving rise to an action for damages under
§ 552a(g)(1)(C)) or if its failure to comply with (e)(5) has an “adverse effect” on the individual
(giving rise to an action for damages under § 552a(g)(1)(D)).! See Hidalgo v. Bureau of

Prisons, 2002 WL 1997999 (D.C. Cir. Aug 29, 2002) (per curium) (“Although [the records at

‘Though neither party addresses the issue, the same analysis applies to the FBI’s alleged violations of
subsection (e)(7).


information regarding Mr. Bassiouni.” If the FBI receives such information, Bassiouni’s current
records will be necessary to provide a context in which to evaluate the newly received
information. “Such information can be properly assessed only in the context of the information
we currently possess.”
Third, the records in question “remain important for evaluating source reliability.”
Krupkowski explains,
When the FBI receives source information, it often is not capable of verifying the validity
of that information at the time. The FBI tries to verify that information over time, such as
by comparing it to future information or events. It also continually uses all information at
its disposal to evaluate the reliability of confidential sources. That is, if Source A
provides information that turns out to be inaccurate or false, as proven by later events or
information from other sources, then that reflects on the reliability of Source A. We
would have to evaluate our continued operation of Source A, and also re-evaluate any
investigative conclusions/actions taken based on information from Source A, even in
other cases. Thus, it is critically important for the FBI to maintain source information
over a long period of time.
Because the FBI may rely on the same sources for years, source information “remains relevant as
long as the same source is used.”
Finally, Krupkowski states that the records are important for their “historic and
accountability purposes.” Krupowski explains that if there were a terrorist attack “even remotely
related” to the individuals or groups with which Bassiouni has had contact, “there will be an

intense interest in what the FBI knew and when it knew it. Destruction or amendment of the

records would impede such an inquiry.”


Defendants have submitted an affidavit from James M. Krupkowski (“Krupkowski”), a
Supervisory Special Agent and the Chief Division Counsel of the FBI Chicago Field Office,
explaining, to the extent possible on the public record, why the records pertaining to Bassiouni
were collected and why the FBI continues to maintain the records. Krupkowski states that the
records were collected in the early 1970s, when “the stakes were high in the FBI’s investigations
into Middle East terrorist threats.” The investigative relevance of the information regarding
Bassiouni is classified, but in 1975 “an investigative conclusion was reached that Mr. Bassiouni
was not a member of any terrorist organization.” Krupkowski states that “there were a few brief
investigative efforts” regarding Bassiouni subsequent to 1975 “because he continued to come to
our attention,” but “given the context provided by our earlier investigative records, quick
conclusions were reached that he was not a member of a terrorist organization and not involved
in terrorist activity.”

However, Krupkowski states that information regarding Bassiouni continues to be
“relevant to, and necessary for, current investigative interests.” Though the specific law
enforcement interests for maintaining the records are classified, Krupkowski provides the
following general explanation.

First, the FBI has amended its investigative priorities, naming as its number one priority
to “protect the United States from terrorist attack.” Investigation into the criminal activities of
Middle Eastern terrorist organizations remains a vital element of the FBI’s counterterrorism
efforts.

Second, Krupkowski states, “given the nature, breadth and depth of Mr. Bassiouni’s

contacts and activities, I believe it is extremely likely that FBI Chicago will continue to receive


FBI’s refusal to amend the records under subsection (d)(3), rather than its alleged violations of
(e)(5) and (e)(7), that give rise to this cause of action.

The Privacy Act provides that the head of an agency may promulgate rules to exempt any
system of records from the Act’s subsection (d) amendment procedures if, inter alia, the system
of records contains “investigatory material compiled for law enforcement purposes.” Id.

§ 552a(k)(2). The FBI has promulgated regulations that specifically exempt records maintained

in its CRS from the amendment provisions of subsection (d) to the extent that the information in

the system is subject to exemption pursuant to subsection (k). See 16 C.F.R. § 16.96(a)(1). The

regulation explains that records maintained in the CRS must be exempt from subsection (d)
because to require the FBI to amend information thought to be incorrect, irrelevant or
untimely, because of the nature of the information collected and the essential length of
time it is maintained, would create an impossible administrative burden by forcing the
agency to continuously retrograde its investigation attempting to resolve questions of
accuracy, etc.

Id. § 16.96(b)(2)(iii).

Because the records at issue are maintained in the CRS, they are exempt from the
amendment procedures of subsection (d), and thus from an amendment suit under (g)(1)(A), if
they were “compiled for law enforcement purposes.” The FBI argues that the Krupkowski
Declaration “explains that the records consist of investigatory material compiled for law
enforcement purposes.” (Def. Mot. for Summ. J., at 8, citing Krupkowski Decl. {4 & 6.)
Bassiouni argues that the Krupkowski Declaration does not confirm that the records were
“compiled for law enforcement purposes,” but states only that the records “are being maintained

as a necessary function of lawful investigations related to important FBI investigative interests.”

(Pl. Resp., at 10.) Bassiouni’s argument is unconvincing. Krupkowski’s omission of the “magic


Minute Order Form (06°97)

ye”

United States District Court, Northern District of Illinois

plaintiff.

do ff [Other docket entry]

OFRCP4(n) CO Local Rule 41.1

OO FRCP41(a\(1)

a) [For further detail see order attached to the original minute order.]

Name of ged Je Joan H. Lefkow Sing uf Oe
CASE NUMBER 02 C 8918 DATE 9/10/2004
CASE Bassiouni vs. Federal Bureau of Investigation
TITLE
[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]
DOCKET ENTRY:
qd) Oo Filed motion of [ use listing in “Motion” box above.]
(2) Oo Brief in support of motion due
(3) Qo Answer brief to motiondue___. Reply to answer brief due.
(4) oO Ruling/Hearing on _____set for
(5) oO Status hearing[held/continued to] [set for/re-set for] on set for at
(6) o Pretrial conference[held/continued to] [set for/re-set for] on setfor_ ss at_
(Cp) Q Trialfset for/re-set for}on __—_at
(8) o [Bench/Jury trial] [Hearing] held/continued to saat
(9) o This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OFRCP41(a)(2).

Plaintiff's motion for summary judgment [23-1] is denied and defendant’s
motion for summary judgment [22-1] is granted. Judgment is entered in favor of defendant and against

No notices required.

v Mail AO 450 form.

v | Notices mailed by judge's staff.
Notified counsel by telephone.

Docketing to mail notices

Copy to judge/magistrate judge.

MD

No notices required, advised in open court.

courtroom
deputy’s
initials

Date/time received in
central Clerk’s Office

2

usnber of notices

SEP 1.4 2004

date dockeled

JX”

docketing deputy initials

9/10/2004

date mailed notice

MD

‘mailing deputy initials



issue] are not exempt from 5 U.S.C. § 552a(e)(5)'s accuracy requirements, the Privacy Act
permits only suits for damages for violation of this provision, and appellant's complaint seeks
only injunctive relief.”).
CONCLUSION

Because the records at issue are exempt from § 552a(d) amendment procedures,
Bassiouni’s claim under § 552a(g)(1)(A) fails. Bassiouni has failed to establish that this action is
viable under any other provision of the Privacy Act. Thus, Bassiouni’s motion for summary
judgment [# 19] is denied, and the FBI’s motion for summary judgment [# 22] is granted. The

clerk is instructed to enter judgment in favor of the defendant. Case is terminated.

ENTER: yee Ot Fthhr—
JOAN HUMPHREY LEFKOW
Dated: September 10, 2004 United States District Judge

10



DISCUSSION

The Privacy Act is primarily designed to provide individuals with more control over the
gathering, dissemination, and accuracy of information about themselves contained in government
files. See Vymetalik v. Federal Bureau of Investigation, 785 F.2d 1090, 1092 (D.C. Cir. 1986).
To accomplish this purpose, the Act requires each government agency to “maintain all records
which are used by the agency in making any determination about any individual with such
accuracy, relevance, timeliness, and completeness as is reasonably necessary to assure fairness to
the individual in the determination.” 5 U.S.C. § 552a(e)(5). Furthermore, the Act prohibits
government agencies from maintaining records “describing how any individual exercises rights
guaranteed by the First Amendment . . . unless pertinent to and within the scope of an authorized
law enforcement activity.” Id. § 552a(e)(7).

Bassiouni alleges that the records at issue are not “accurate, relevant, timely, and
complete” as required by § 552a(e)(5) and that the records describe Bassiouni’s First
Amendment activities, in violation of § 552a(e)(7). However, violations of (e)(5) and (e)(7) do
not, in themselves, give rise to a cause of action. Subsections (e)(5) and (e)(7) simply set forth
standards to which records must conform. See U.S. DEP’T OF JUSTICE, FREEDOM OF
INFORMATION ACT GUIDE & PRIVACY ACT OVERVIEW 858 (May 2002 ed.). Bassiouni’s cause of
action arises solely under § 552a(g)(1)(A). See Bassiouni v. FBI, 2003 WL 22227189 (N.D. Ill.
Sept. 26, 2003). Subsection (g)(1)(A) provides that whenever an agency “makes a determination
under subsection (d)(3) of this section not to amend an individual’s record in accordance with his

request . . . the individual may bring a civil action against the agency.” In other words, it is the


By letter dated November 22, 1999, Bassiouni wrote to the FBI seeking access to records
in possession of the FBI pertaining to him. By letter dated March 23, 2001, the FBI released
forty nine pages of records, with redactions, including a transmittal cover letter dated April 8,
1983, and five memoranda and appendices dated March 27, 1970, January 9, 1974, J uly 9, 1974,
January 23, 1975, and August 5, 1975, respectively. The records contain references to the
following organizations, along with descriptions of their leaders and the characteristics of the
organizations: (1) Organization of Arab Students; (2) Al Fatah; (3) Popular Front for the
Liberation of Palestine (“PFLP”); (4) Palestine Liberation Organization (“PLO”); (5) Arab
American Congress for Palestine (“AACP”); (6) Arab Scientists Association in the United States;
(7) Arab American Defense Committee, (8) Palestine Liberation Forces; (9) American Congress
for Palestine; (10) Palestine Liberation Army; and (11) the United Holy Land Fund. The records
describe a number of these organizations as being “terrorist” in nature, and one of the groups is
currently named on the United States Department of State’s List of Designated Foreign Terrorist
Organizations (“FTOs”). See OFFICE OF COUNTERTERRORISM, U.S. DEP’T OF STATE,
DESIGNATED FTOs (AUGUST 12, 2004) (listing the PFLP),
http://www. state.gov/s/ct/rls/fs/2004/35167.htm. None of the records state FBI conclusions that
Bassiouni is or was a member of any of these organizations, and Bassiouni has stated by affidavit
that he is not now nor has he ever been a member of any of these organizations. Bassiouni has
also stated that none of these organizations were a part of the AAAUG.

The records also contain a memorandum referring to a speech Bassiouni purportedly gave

at a banquet sponsored by the AACP on November 25, 1973. The memorandum summarizes



party seeking summary judgment bears the initial burden of proving there is no genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In response, the non-moving
party cannot rest on bare pleadings alone but must use the evidentiary tools listed above to
designate specific material facts showing that there is a genuine issue for trial. Id. at 324; Insolia
v. Philip Morris Inc., 216 F.3d 596, 598 (7th Cir. 2000). Although a bare contention that an
issue of fact exists is insufficient to create a factual dispute, Bellaver v. Quanex Corp., 200 F.3d
485, 492 (7th Cir. 2000), the court must construe all facts in a light most favorable to the non-
moving party as well as view all reasonable inferences in that party’s favor. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986).
FACTS

Bassiouni, an American citizen, is a former president of the Association for Arab-
American University Graduates (“AAAUG”) and a former president of the Mid-America Arab
Chamber of Commerce, Inc. He is currently president of DePaul University’s International
Human Rights Law Institute, the International Institute of Higher Studies in Siracusa, Italy, and
the International Association of Penal Law in Paris, France. In 1992, he was appointed a
member, and later chairman, of the United Nations (“U.N.”) Commission to Investigate
International Humanitarian Law Violations in the Former Yugoslavia. From 1995-1998, he was
elected vice-chairman of the U.N. General Assembly’s Committee for the Establishment of an
International Criminal Court and, in 1998, he was elected to the Drafting Committee of the U.N.
Diplomatic Conference on the Establishment of the International Criminal Court. See

http://www.law.depaul.edu/institutes_centeres/ihrli/.



UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS r

EASTERN DIVISION DOCKETED

MAHMOUD CHERIF BASSIOUNI ) SEP 1 4 2004
a/k/a M. CHERIF BASSIOUNI )
)
Plaintiff, )
)

v. ) _No.02. C8918
) Judge Joan H. Lefkow

FEDERAL BUREAU OF )
INVESTIGATION )
)
Defendant. )

MEMORANDUM OPINION AND ORDER

Plaintiff, Mahmoud Cherif Bassiouni (“Bassiouni”), brings this action for declaratory and
injunctive relief under the Privacy Act, 5 U.S.C. § 552a(g)(1)(A), seeking an injunction ordering
the Federal Bureau of Investigation (“FBI”) to amend FBI records pertaining to him. Bassiouni
alleges that the records are not “accurate, relevant, timely, and complete” as required by
§ 552a(e)(5) and that the records describe Bassiouni’s First Amendment activities, in violation of
§ 552a(e)(7). Before the court are cross-motions for summary judgment. For the reasons stated
below, Bassiouni’s motion for summary judgment is denied, and the FBI’s motion for summary
judgment is granted.

SUMMARY JUDGMENT STANDARDS

Summary judgment obviates the need for a trial where there is no genuine issue as to any
material fact and the moving party is entitled to judgment as a matter of Jaw. Fed. R. Civ. P.
56(c). To determine whether any genuine fact exists, the court must pierce the pleadings and
assess the proof as presented in depositions, answers to interrogatories, admissions, and

affidavits that are part of the record. Fed R. Civ. P. 56(c) Advisory Committee’s notes. The

Y