Justice Dept. seeks dismissal of FOIA suit by Villanova law professor

By Jon Campisi | Nov 28, 2012

The Federal Bureau of Investigation is seeking the dismissal of a lawsuit initiated by a

The Federal Bureau of Investigation is seeking the dismissal of a lawsuit initiated by a

local law school professor who desires to get his hands on an un-redacted memorandum from the 1960s relating to the resignation of former U.S. Supreme Court Justice Abe Fortas.

Tuan Samahon, a tenured professor at Villanova Law School, which is located just outside of Philadelphia, filed suit against the FBI and the Justice Department this summer over claims that the government improperly denied his 2010 Freedom of Information Act request for an un-redacted document concerning the FBI’s supposed “questionable” encounter with Fortas in October 1966.

Fortas resigned from the high court three years later.

Samahon, who teaches and researches in the fields of constitutional law and federal courts, has been conducting research into Fortas’s “untimely” resignation from the bench, and the causes of his stepping down, including supposed abuses of power by then-FBI Director J. Edgar Hoover and his associates, the plaintiff’s complaint states.

Samahon’s FOIA request sought a document titled the “DeLoach Memorandum,” which related to an October 1966 case called Black v. United States, which dealt with federal agents’ use of electronic surveillance.

Fortas, a sitting justice at the time, had recused himself from participating in that case, and therefore ended up leaking the high court’s confidential deliberations in the case, the DeLoach Memorandum had stated, according to Samahon’s lawsuit.

Samahon’s complaint alleges that his FOIA request ended up being redacted, although he claims the redactions were improper, since no medical information, personnel file information or other confidential information was included in the redactions.

On Nov. 16, Zane David Memeger, the U.S. Attorney for the Eastern District of Pennsylvania, along with two assistant U.S. attorneys, filed a motion for summary judgment on behalf of the federal government.

The motion states that the DeLoach document provided to Samahon under his FOIA request involves the deletion of merely one name, and submits that the FBI properly redacted the name in question, “because, in this instance, the privacy concerns embodied by FOIA trump whatever public interest would be served, if any, by disclosure.”

The motion further asserts that the courts have historically shown “particular solicitude for the privacy of individuals whose names appear in the files of law enforcement agencies.”

The government’s attorneys also argue that the identity of people who are, or have been, subject of FBI interest could subject those people to harassment or embarrassment.

“And, to release the identity of persons who are merely mentioned in these records and of no investigatory interest to the FBI ‘could cause unsolicited and unnecessary attention to be focused on them,’” the motion continues.

Attorneys with the Justice Department attached to the filing the affidavit of David M. Hardy, section chief of the Record/Information Dissemination Section of the Records Management Division, who was involved in Samahon’s initial FOIA request.

In closing, attorneys stated that the case should be dismissed because the FOIA request contains the name of a living individual who was the subject of an FBI background and security investigation, the disclosure of which could subject the person to embarrassment or “otherwise stigmatize him or her.”

“Identification of the person by name would do nothing to advance the ‘core’ purposes of the FOIA, i.e. shedding light on the activities of the government and showing the public ‘what the government is up to,’” the motion reads.

The court docket in the case shows that Samahon has until Jan. 4, 2013, to submit a motion opposing the defendants’ motion for summary judgment.

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