Agency: FBI
Originator: DOJ
From: RUCKELSHAUS
To: EOUSA
Document date: 9/1/70
Document type: PAPER, TEXTUAL DOCUMENT

## Page 1

Released under the John F. Kennedy Assassination Records COllection Act of 1992 (11 USt 2107 Hotel.

DATE: 11-14-2017

JFK Assassination System

Date:

4/14/201

Identification Form

Agency Information

AGENCY: FBI

RECORD NUMBER :

124-10325-10075

RECORD SERIES :

HQ

AGENCY FILE NUMBER:

197-636-4, 5

Document Information

ORIGINATOR: DOJ

FROM: [Restricted]

TO : EOUSA

TITLE :

DATE: 09/01/1970

'PAGES:

SUBJECTS :

HAROLD WEISBERG

DOCUMENT TYPE : PAPER, TEXTUAL DOCUMENT

CLASSIFICATION: Unclassified

RESTRICTIONS : Consulted

CURRENT STATUS: Withhold

DATE OF LAST REVIEW: 06/11/1998

OPENING CRITERIA: APPROVAL OF DOJ

COMMENTS:

REFERRED TO DOJ, INC MEMO

v9.1

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Released under the John F. Kennedy Assassination Records Collection

Ant it

1992 711 USc 2107 Hote).

DATE: 11-14-2017

V.

United States Attorney

Distriot of Columbia

September 16, 1970

William D. Ruckelshaus

Assistant Attorney General, Civil Division

By: Harlend F. Leathers

Chief, General Istigation Section

WDR:JPArelrad:bd

145-12-1449

FEDERAL GOVERNMENT

Harola weisberg V. Department of Justice

USDO D.C. Civil Action No. 2301-70

Our memorandum to you dated September 1, 1970 pointed out,

Inter alie, that the recorde plointiff seeks in this action are

exempt from disclosure because they are part of FBI Investigation

files.

The correctness of oir position bas been reaffirmed recent-

ly by Judge Sirica.

Black v. Sheraton Com of America, toRol.

730, 132-133 (D Đ.C. 1970).

We suggest you incorporate citatio

of this case in the brief in support of the motion suggested in-

our prior memorandun.

VEG-D

Cc:

Mr. J. Edgar Hoover

Director, Federal Bureau

na DEUL 8E latestigation

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DoeId: 32312826

Page 2

197-636-5

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DISECIOS

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Released under the John F. Kennedy Assassination Records Collection Aot o1 1992

144 030

DATE;

11-14-2017

sion

PR

EP-8 1970.

United States Attorney

District of Columbia

W112lan D, Fuckelshaus

TEDERAL

GOVEENNENT

September 1, 1970

WDE: JEAxelrad:bd

145-12-3449

Assistent Attorney General, Civil Division

Harland Fe Leathers

Chief, General Litigation Section

Herold Weisberg V: Department of Justice.

USDC D:Coy Civil Action No: 230170

Inclosed are 1) copy of memorandum from the FBI dated

Auguat 20, 1970; and 2) original and four coples of an affi=

davit executed by Special Agent Marion E. Williams.

For the

reasons given below we suggest that you file a motion to dis

miss or, in the alternative, for summary judgment pursuant

to Rules 12(b) (2)(6) and 56 of the Federal Rules of Civil Pro-

cedure, supported by Mr, Milliams" affidavit, before our time

to respond to the complaint runs.

The sole basis of jurisdiction alleged in the complaint

is 5 U.S.0, 552, (Couplaint,

Par: 1). Hovever, 5 U.S.C. 552

(b)(7) exempte from 5 U.S.C. 552 "investigatory files compiled

for law enforement purposes except to the extent available by

Jay to a party other than an agenoy."

(emphasis added),

Mr. Tolson.

Mr.

Sullivan

Mr.

Mohr

Mr. Bichop

Mr. BrennanCD..

Mr. Callahan

Mr. Casper.

The. Erad

Mr.

Pot

p Mi. Gule..

farel

Mr. Walters

Mr. S yars

Tele. Room.

Miss

Holmes

iss

Gandy

The woole thrust of the exemption is to protect fron disclogure

012 files which the Government compiles

1p the course of law

Enforcement investigations which may or fict leanto formal

proceedings. As the Court held in Barcetbacca Choettom. v.

om ton: 271 F. Supp: 591, 592-393 02318867)

"In general tems I agree witif the Aloney

5197-1036-

Goneral's analyals of the nature and ccope of

the exemption, in his Memorandun on the Public

Infonation Section of the Administrative Pro-

cedure Act, dated June 1967, wherein he states

at Do 38:

n 2 0F

2451351/938-7

*The effect

on the, puner

availability to

inves gatoryat nes solthe extent to which

256

Congréss end hel'gure have madel then ovati-

gants

VECE mEd TeEburdens of the Jencks

266

SEP 22 1970

5.004-451970

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5307

7148

39210052

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Released'unter the John F. Kennedy Assassination Records Collection Act of 1992 (44 USC 2107 Hote).

DATE: 11-14-2017

42-

statute (28 U.S.C. 3500) may obtain prior

statements given to an IBI agent or an SEC

trvestigatory by a witness who is testitying

in a pending case; but since such statenents

night contain information unfoirly denging

to the litigant or other persons, the now

IaM, like the Jencks stetute, does not permit

the statement to be made avattable to the

publie. In addition, the House report makes

clear that litigants are not to obtain special

benctits from this provicion, stating that

'S» 1160 is not intended to give & private

party indtrectly any earlier or greater access

to investigator files than he would have di-

rectly in such Litigation or proceedings.'

Accord:

As I suggested before, Congress could not have in-

tended to grant lesser rights of inspection and

copying of vitnesses' statements to persone wino

are faced with the deprivation of their llfe or

Liberty, than to persons faced only with renedial

adninistrative orders under regulatory statutes."

424 R.2a 935, 939 (D.C. Cir.

3527e

To like effect is the Court's decision in Clenent Brothers

Co. V. VLRB, 282 Fo Suppo 540, 542 (ID Ga 1968), with which the

Ntrth Circult has stated it "fully concurs,"

HERE V. Clement

Brothes Co., 407 I aa 1027, 1031 (5th Cir: 1969);

"Though the Court does not feel that it is

necessary to reiterate en exhaustive documentation

of the Act's logislative history, the following

statement is exemplary of numerous others which

make it clear that the plaintif's interpretation

nust be rejected:

"This exemption covere investigatory flles

related to enforcement of all kinds of lews,

labor and securitios leus as well as crimi-

nal lave

This vould include files prepared

in connection with related Government liti-

gation and adjudicative proceedings.

H.Ro

Report # 1497; 89th Congs, Zna §ess. D. 12.9

252.100.

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Released under the John F. Kennedy Assassination Records Collection Act of 1992 (44 USe 2107 Hote)

DATE: 11-14-2017

In sun, it is clear that the plaintiff could

obtain the employees' statements taken by the Board

if the employees had been called to testify - in

fact, the plaintift was given access to the state-

ments of the employces who did so testify. Howevery

the plaintiff is not entitled te employee stetements

absent such use.

Since, the records plaintiff seeks have not been nade part of

the record in agency proceedings, plaintiffs may not obtain then

"absent such use." y

Aecord: Benson v. United States, 309 F.

Sup: 2144 (D Neb. 1970)*

Unlike Bristol-Myers, V. FiC, supra, there can be no serious

question that the lit records plaintill seeks are exempt tron

disclosure: they are part of an "investigative file, which was

compiled for law enforcement purposes and is mintained by the

Federal Bureau of Investigation concerning the investigation of

the assassination of President John V. Kennedy. "

(01231 ams"

Affidavity Par. 3) -

This investigative file is not publicly

disclosed (Willians' Affidavit, Par. 4). Disclosure of such.

files would seriously hinds the operations of the FBI (Willtans"

Affidavit, Pero S). Thus, the above analysis establishes that

exemption 7 to 5 U:S.C. 552 applies to exempt the material plain-

seeke from disclosure;

In addition; the legislative history

to 5 U.S.0, 552 confirms that "It|he FBI would be protected under

exemption No. 7 prohibiting disclosure of 'investigatory files."

Remarks of Representative Gallegher, & strong supporter of the

legislation, Ö9th Cong., 2nd Sess., Cong. Record, D. 13026.

Insofar as dictun in Cooney We

Sun Shipbuilding & Drydock Co.,

288 F. Supp: 708 (G.D. Pa, 1966), which involved subpoene pro

ceedings, not a suit pursuant to 5 U.s.C. 552, is to the contrary,

it is plainly wrong for the reasons stated above. It is signifi-

cant that the language Congress ehose, "compiled for law enforce-

rent purposes" mas criticized at hearings on the proposed legis-

Lation as unduly restrictive. 89th Cong., Ist Session, Hearings

on Fol, 5012 before the Flouse Committee on Government Operations,

pp: 245-247 Notulthstanding this criticisn Congresa enacted

exemption 7

as referred to above because it thought the broad

protection against disclosure contained therein necessary to ef-

fective operation of the agencies thich compile investigation

reports:

In any event, the records plaintiff seels are presently

"aintained by the Federal Bureau of Investigation" as investiga

tory files, (Willems. Affidavit, Pare 3)

392081

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Released under the John F. Kennedy Assassination Records Collection Act of 1992 (14 USC 2107 note).

DATE: 11-14-2017

4, =

Indeed, Rep. Gallagher expressly noted that the bild (containing

enemotion 7 in a form similar to that enacted as 3 UeS.0• 552g0)

(7)) "prevents

the disclosure of . ;

"sensitive" Goverrment

information such es FBI files • •

Thus, the legislative:

history to 5 U,S.C. 552 and the decided cases are in accord

that plaintiff may not obtain the FBI records he sets.

Plesse send us copies of all papers filed and keep us informed

of all developnents.

Mro Je Edgar Hoover

Director, Federal Fureau of Investigation

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