MEMORANDUM OPINION AND ORDER
JOINER, District Judge.
This case is before the court on three motions: defendant's motion to dismiss; plaintiffs' motion to amend the complaint; and plaintiffs' motion to compel. In this suit, plaintiffs seek damages from the United States for the death of their mother, Viola Liuzzo, a civil rights worker who was murdered in 1965.
The facts of this case are reported in detail in an earlier opinion of this court, Liuzzo v. United States, 485 F.Supp. 1274 (E.D.Mich.1980). Plaintiffs allege that the government, through the Federal Bureau of Investigation, was responsible for their mother's death, and that certain agents mishandled and abused their mother's body after her death. These allegations are discussed in detail below.
Defendant's motion to dismiss is based on F.R.C.P. 12(b)(1) and (6), and asserts that the court lacks subject matter jurisdiction to entertain this action and that plaintiffs' complaint fails to state a claim on which relief can be granted. Following the hearing on the motion to dismiss, plaintiffs moved to amend their complaint. The court indicated to the parties at that time that both motions would be decided together, and that oral argument on the motion to amend would not be entertained. Finally, plaintiffs have moved to compel the production of the "Rowe Task Force Report" under F.R.C.P. 37. Production of the report has been resisted by defendant on the basis of privilege.
I. Motion to Amend Complaint
Turning first to the motion to amend the complaint, the court notes that the amended complaint does not differ substantially in legal theory from the complaint originally filed, and supplements factual allegations contained in the original complaint. Defendant opposes this motion, asserting that plaintiffs have delayed in presenting it to the court, and that defendant will be prejudiced if the court allows the amended complaint. Precisely how the government will be prejudiced, however, is not explained. Defendant further argues that the amended complaint should not be allowed because it cannot survive the motion to dismiss.
In view of the lack of demonstrated prejudice to defendant, the court believes that the amended complaint should be allowed. Defendant's arguments in support of its motion to dismiss are readily transferable to the amended complaint and are, in fact, reiterated by defendant in its brief opposing the motion to amend. Allowance of the amended complaint, moreover, is in furtherance of the liberal policy of Rule 15. Accordingly, plaintiffs' motion to amend is granted.
II. Motion to Dismiss
Plaintiffs seek damages in this case for the death of their mother in 1965. In March of that year, Viola Liuzzo traveled to Alabama to participate in the Selma-Montgomery voting rights march. While traveling between the two cities, her car was overtaken by a car occupied by members of the Ku Klux Klan. Shots were fired at Mrs. Liuzzo and she died of the injuries sustained. One of the occupants of the Klan car was Gary Thomas Rowe, an F.B.I. informant.
Plaintiffs allege that the F.B.I. recruited Rowe as an informant in the Klan, and that the F.B.I. exercised direct, continuous, and complete control over Rowe while he performed his duties as a Klan informant. They further allege that Rowe was paid for his services, and at all times acted within the scope of his authority under instruction and supervision given by the F.B.I. According to plaintiffs, the F.B.I. agents who recruited Rowe knew or should have known that he lacked the necessary stability and responsibility required by F.B.I. policy. It is further alleged that Rowe's control agents failed to provide the necessary training and supervision to insure that Rowe performed his duties lawfully and responsibly. Moreover, plaintiffs allege that Rowe's control agents knew of and negligently and wrongfully authorized Rowe to participate in and provoke violent and illegal acts. Plaintiffs further allege that Rowe's control agent wrongfully and negligently authorized Rowe to participate in the activities which culminated in Mrs. Liuzzo's death, regardless of the fact that the agent knew or should have known that violent and illegal acts would occur. Plaintiffs set forth six claims based on these allegations:
Amended Complaint, paragraph 18.
A. Jurisdiction under the Federal Tort Claims Act
Section 1346(b) of Title 28 provides:
This section's waiver of sovereign immunity and provision for jurisdiction of actions against the United States does not apply to every type of claim. Section 2680 of Title 28 specifically excepts certain claims from the application of § 1346(b). The government relies on two of the exceptions to the waiver of sovereign immunity, the assault and battery exception and the discretionary function exception, § 2680(h) and (a) respectively.
1. The Assault and Battery Exception
Subsection (h) of § 2680 provides for an exception to the general waiver of sovereign immunity in § 1346(b) for:
Defendant argues, based on this provision, that plaintiffs' claims arise out of the assault and battery of Mrs. Liuzzo and are thus barred. According to defendant, artful, skilled, and innovative pleading cannot alter the character of this case from one "arising out of" an assault and battery to one sounding in negligence. Moreover, defendant argues that the proviso to subsection (h) does not apply to plaintiffs' claims because Rowe was not an "investigative or law enforcement officer" within the meaning of the proviso.
At the outset, it is clear that, to the extent that the assault and battery exception to the general waiver of sovereign immunity applies to plaintiffs' claims in this case, plaintiffs derive no benefit from the proviso to subsection (h) which operates to allow claims for certain intentional torts of certain investigative or law enforcement officers. That proviso, added to the FTCA in 1974, by its terms applies to claims which arise
This construction has been adopted by a number of courts. Ames v. United States, 600 F.2d 183 (8th Cir. 1979); Gaudet v. United States, 517 F.2d 1034 (5th Cir. 1975); Pennington v. United States, 406 F.Supp. 850 (E.D.N.Y.1976); Dupree v. Village of Hempstead, 401 F.Supp. 1398 (E.D.N.Y. 1975).
The conduct for which plaintiffs seek to hold the government liable occurred well before the date on which the proviso to subsection (h) was enacted. It follows from this that the government cannot, under § 2680(h), be vicariously liable for any assault or battery committed by a government employee in this case.
The causes of action asserted by plaintiffs can be read to assert the vicarious liability of the government for the murder of their mother. To the extent they can be so read, these claims are barred. However, the allegations in the amended complaint go far beyond this narrow theory of liability, and assert that the government is directly liable for Mrs. Liuzzo's death by its negligent and wrongful conduct. These allegations include negligent and wrongful hiring, training and supervision of Rowe, negligent and wrongful failure to prevent the murder, and F.B.I. agents' negligent and wrongful authorization to Rowe to commit illegal acts. The question presented by these claims is whether they are barred by § 2680(h). As the discussion below demonstrates, this question must be answered in the negative.
As noted above, § 1346(b) provides a general waiver of sovereign immunity for claims for injuries "caused by the negligent or wrongful act or omission of any employee of the Government ..." In this respect, it is essential to note that the negligent and wrongful acts and omissions alleged by plaintiffs are those of the agents who hired, trained, and supervised Rowe, authorized him to engage in violent and illegal activities, and failed to prevent the murder. Likewise, plaintiffs allege that Rowe wrongfully and negligently failed to prevent the murder.
Section 2680(h), however, bars claims "arising out of" assault and battery. As noted above, however, plaintiffs' claims arise out of conduct which was not the commission of the murder itself. "When injuries directly resulting from assaults and batteries may be reasonably alleged to have
It is worthy of emphasis that plaintiffs are not attempting to characterize the actual battery in this case as one negligently committed. Such an attempt would not succeed, as the cases clearly indicate. Lambertson v. United States, 528 F.2d 441 (2d Cir. 1976), cert. den. 426 U.S. 921, 96 S.Ct. 2627, 49 L.Ed.2d 374 (1976); Klein v. United States, 268 F.2d 63 (4th Cir. 1959); Smith v. United States, 330 F.Supp. 867 (E.D.Mich. 1971); Nichols v. United States, 236 F.Supp. 260 (N.D.Miss.1964). Rather, the conduct alleged to have been negligently or wrongfully committed is conduct apart from the murder but which is alleged to have proximately caused the murder.
Nonetheless, the issue is not so easily resolved. A number of cases have held that the waiver of sovereign immunity does not apply when a party seeks to hold the government directly liable for the negligence of its employees, which negligence is in turn alleged to be a proximate cause of an assault or battery committed by another government employee. Naisbitt v. United States, 611 F.2d 1350 (10th Cir. 1980); Pennington v. United States, 406 F.Supp. 850 (E.D.N.Y.1976); Collins v. United States, 259 F.Supp. 363 (E.D.Pa.1966). If this line of cases were followed, the question whether the court has jurisdiction to entertain this suit would be answered differently, depending on whether a Klansman killed Mrs. Liuzzo or Gary Rowe, alleged to be a government employee, killed Mrs. Liuzzo.
The leading case setting forth the distinction between assaults committed by employees and third persons is Panella v. United States, 216 F.2d 622 (2d Cir. 1954). There the court held that a federal inmate's tort action for injuries sustained from an assault by another inmate, but allegedly caused by the negligence of employees of the government, was not barred by § 2680(h). In reaching this conclusion the court distinguished situations in which an assault is committed by a government employee:
In this case, the essence of plaintiffs' claims is the alleged negligence and wrongdoing of government employees which led up to Mrs. Liuzzo's death. The "essence" of their claims does not change merely because the assault may have been committed by a government employee.
The court in Panella reviewed at length the "meagre" legislative history relating to the assault and battery exception. Id. at 625-26. Such history as there is does not compel the conclusion that Congress intended to bar negligence suits of the type filed by plaintiffs here. While there are indications that intentional torts by government employees should not be actionable, a reasonable inference to draw from the legislative history is that Congress was concerned with vicarious liability for these intentional torts, and not direct liability for negligent and wrongful conduct. For example, § 2680(h) was described as barring claims for certain intentional torts which would be "difficult to make a defense against, and which are easily exaggerated." Id. at 626, citing Hearings on S. 2690, 76th Cong., 3d Sess., p. 39. It is not evident to this court how a negligence action such as the one before it is any more difficult to defend against than any other negligence action in which it is alleged that certain duties were owed to the plaintiff and that these duties were breached. Nor is it evident how such claims can be more easily exaggerated than claims in any other negligence action.
The Panella court cautioned that the Federal Tort Claims Act should be read so as to make it "consistent and equitable." Id. at 624. However, the result that Panella directs the court to reach in this case, if the facts proved at trial result in a finding that a government employee fired the fatal shot, would be neither consistent nor equitable. Indeed, other courts have applied Panella to virtually identical fact situations and have reached opposite conclusions regarding the proper scope of § 2680(h). Compare Pennington v. United States, supra, and Naisbitt v. United States, supra, with Gale v. United States, supra.
Because the conduct on which governmental liability is premised here is not the intentional tort which caused Mrs. Liuzzo's death, but rather is conduct which allegedly made her murder possible and proximately caused her death, plaintiffs' claims are not barred by § 2680(h). This analysis applies the provisions of that section in an equitable and consistent manner, and thus prevents dismissal pursuant to the assault and battery exceptions regardless of whether Rowe was, under the law, a government employee and the person who fired the fatal shot. Bryson v. United States, supra; Loritts v. United States, supra.
2. The Discretionary Function Exception
Section 2680(a) excepts from the general waiver of sovereign immunity:
Defendant argues that the allegations made by plaintiffs all relate to the exercise of discretionary judgment by the F.B.I. and that plaintiffs' claims are thus barred by § 2680(a). Defendant invites the court to focus its attention with regard to this issue on only two aspects of Rowe's involvement in the F.B.I. — to the authorization he received on the morning of the murder from his contact agent to go along on the mission, and to the decision made by high officials to utilize informants to penetrate Klan secrecy. However, the court declines to accept this invitation for it is at once both too narrow and too broad, and would require that the court overlook specific allegations in the complaint concerning activities which are not barred by the discretionary function exception.
The discretionary function exception immunizes the government from liability for acts or omissions of its employees while formulating policy. Downs v. United
From the foregoing it is clear that any claims relating to the formulation of government policy are barred by operation of § 2680(a), but that claims which arise out of the manner in which a particular situation is handled, and which are based on allegations that existing, valid regulations were wrongfully or negligently implemented are not so barred. Downs, supra; Miller, supra. Moreover, the mere exercise of judgment does not automatically insulate the government from liability for, as the court in Downs has noted, almost every human endeavor involves the exercise of judgment to some degree. Downs, supra, 522 F.2d at 995.
Plaintiffs in this case allege that negligent and wrongful acts of Rowe and certain F.B.I. agents proximately caused their mother's death, and that these acts were done in violation of state and federal law and F.B.I. policy. Plaintiffs specifically allege that Rowe was wrongfully and negligently recruited, trained, and supervised, and that Rowe and the F.B.I. wrongfully failed to prevent their mother's murder. Finally, plaintiffs assert that the F.B.I. contact agents wrongfully and negligently authorized the commission of illegal acts. All of this is alleged to be in contravention of state and federal law and F.B.I. policy, and to be a proximate cause of the murder.
To the extent that these causes of action can be read to attack the actual formulation of F.B.I. policy regarding the use of informants, plaintiffs' claims are barred. The government is correct in its argument that it has not waived its sovereign immunity for claims arising out of the decision to use informants or to "wage war" on the Klan. Equally correct is its argument that it cannot be liable for the formulation of policy with regard to how its informants are to be recruited, hired, trained, and supervised. Plaintiffs do not, however, challenge F.B.I. policy as negligently formulated, but attack instead the implementation of that policy vis-a-vis Gary Thomas Rowe. Plaintiffs' Supplemental Memorandum in Opposition to Motion to Dismiss, p. 6. As the following discussion demonstrates, these claims are not barred.
Defendant maintains that the decision made by Rowe's contact agent to instruct him to go along on the mission which culminated in Mrs. Liuzzo's murder was an exercise of a discretionary function. However, the similarity of the circumstances
In Downs, the government was sued for the deaths of hijacking victims resulting from the negligence of an F.B.I. agent. The agent in that case refused to accede to the hijacker's demand that the hijacked plane be refueled, and disabled the aircraft's engines with rifle fire. The hijacker then shot his hostages and himself. Hijacking policy had previously been promulgated by the F.B.I. The court concluded that the agent was not making policy in responding to the situation, and held that the claims were not barred by § 2680(a).
The decision of Rowe's contact agent to authorize Rowe's participation in the mission which ended Mrs. Liuzzo's life is of the same nature — a response to a particular situation. Like the agent in Downs, the agent in this case was operating under F.B.I. policy
The analysis employed in Downs reveals that plaintiffs' remaining claims regarding the implementation of F.B.I. policy by agents with regard to Rowe's recruitment, training, supervision and instructions are not barred by § 2680(a).
In response to defendant's arguments that their claims are barred by § 2680(a), plaintiffs make an additional argument raising an issue which is unnecessary to resolve at this time. Plaintiffs argue that the discretionary function exception does not apply to unconstitutional and illegal acts, and that any policy authorizing such conduct would not be protected by § 2680(a). This argument is based primarily on Hatahley v. United States, 351 U.S. 173, 76 S.Ct. 745, 100 L.Ed. 1065 (1956), and Birnbaum v. United States, 588 F.2d 319 (2d Cir. 1978). To the extent that plaintiffs attack the implementation of F.B.I. policy with regard to Rowe, the court has already concluded that their claims are not barred by § 2680(a). The argument based on Hatahley and Birnbaum applies, if at all, if it is shown that F.B.I. policy authorized and sanctioned illegal and unconstitutional conduct.
In summary, defendant's motion to dismiss on jurisdictional grounds is granted in part only. Section 2680 imposes exceptions to the general waiver of sovereign immunity contained in § 1346(b) and thus limits the permissible scope of this law suit. Under § 2680(h), the government is free from vicarious liability for Mrs. Liuzzo's murder. Under § 2680(a), the government is free from liability for claims arising out of the formulation of policy with regard to informants and the decision to use informants in its war on the Klan. However, plaintiffs' claims which are based on the negligent and wrongful conduct of government employees in the implementation of policy with regard to Rowe are not barred by either section. The question whether the discretionary function exception applies to claims arising out of acts done pursuant to policy which authorized illegal and unconstitutional acts is reserved pending the presentation of proofs on this issue.
B. Motion to Dismiss for Failure to State a Claim on Which Relief can be Granted under F.R.C.P. 12(b)(6)
Under 28 U.S.C. § 1346(b), the United States can be liable for negligent or wrongful acts or omissions of its employees under circumstances where the United States, "if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." The government bases its motion to dismiss for failure to state a claim on the argument that Alabama law, the state in which Mrs. Liuzzo was murdered, imposes no duty to warn of or prevent a crime. Plaintiffs argue that such a duty does exist, and that their complaint does state viable causes of action.
At the outset, two issues require clarification. First, although the government contends that plaintiffs' entire complaint fails to state a claim on which relief can be granted, its arguments are directed only to the causes of action based on the F.B.I. and Rowe's failure to prevent the murder, found in paragraphs 18(b) and (e) of the amended complaint. Plaintiffs' other three causes of action are based on affirmative acts which allegedly caused Mrs. Liuzzo's death. Because defendant does not address itself to these causes of action, the court will likewise limit itself to the question whether the failure to prevent the murder by the F.B.I. and Rowe states a viable cause of action.
Second, plaintiffs' argument in opposition to the motion is based in part on the assertion that the duty owed to Mrs. Liuzzo arose by operation of the United States Constitution and federal law or regulations. It is clear, however, that constitutional torts as such are not recoverable under the FTCA. 28 U.S.C. § 1346(b); Birnbaum v. United States, 588 F.2d 319 (2d Cir. 1978). In a recent case, Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980), the Supreme Court resolved the question whether a party's ability to seek recovery against the United States under the Federal Tort Claims Act barred a suit against the individual employees for the constitutional torts committed. In answering this question in the negative, the Court distinguished constitutional tort suits under Bivens v. Six Unknown Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1976), from FTCA suits:
Plaintiffs fare no better with their assertion that defendant owed a duty of care which arose under federal statutes or regulations. Plaintiffs have not identified any specific statute or regulation which would govern the facts of this case, and the argument thus does not require detailed analysis. It is sufficient to note that breach of a duty imposed by federal law or regulation does not give rise to a cause of action independent of state law. The FTCA does not create substantive law, but rather allows suits against the United States based on the substantive law of the state where the wrongful act or omission occurred. Thus, federally imposed duties are relevant if, for example, state law creates a comparable duty, or if the state's common law recognizes the familiar doctrine that one who assumes a duty and thereby induces reliance on the performance of that duty, is liable for negligence in performance of that duty.
It has thus been established that Alabama law governs the determination of the issues raised by the government's motion to dismiss. The question presented is whether Alabama law imposed a duty to prevent the murder under the facts as alleged in plaintiffs' amended complaint. A survey of Alabama law, however, reveals no authority directly on point. This court must therefore act as it would in a diversity case, and predict what Alabama's highest court would do if faced with this issue. Commissioner v. Estate of Bosch, 387 U.S. 456, 87 S.Ct. 1776, 18 L.Ed.2d 886 (1967); Quinones v. United States, 492 F.2d 1269 (3d Cir. 1974); Peck v. United States, 470 F.Supp. 1003 (S.D.N.Y. 1979). Reference to general principles of tort law is appropriate in making this determination.
Discussion of the viability of plaintiffs' causes of action premised on the failure on the part of the F.B.I. and Rowe to prevent Mrs. Liuzzo's murder must start with the general rule that, absent other factors, there is no duty to prevent the commission of a tort or a crime. Peck v. United States, supra, 470 F.Supp. at 1016. See also, Restatement of the Law, Torts, 2d, § 314; Prosser, Torts, § 56 (4th ed. 1971) (hereinafter Prosser). Plaintiffs argue, however, that the facts alleged in their amended complaint create a situation in which such a duty should be imposed. Plaintiffs argue that because the F.B.I. recruited and trained and sent into action an unreliable and unstable informant over whom complete control was exercised, it is permissible to premise liability on the agents' failure to prevent the harm which they knew or should have known would occur to Mrs. Liuzzo. The court agrees.
Plaintiffs' theory of liability is premised on § 319 of the Restatement of the Law, Torts, 2d:
The comment to this section describes its application to the situation
The theory of liability embodied in § 319 is one which is well established in tort law, and has been held to create a duty on the part of employers to control employees, institutions to control inmates, hospitals to control patients, and parents to control children. See generally, Prosser, at 349-50. The essence of a cause of action under § 319 is the relationship between the defendant and the tortfeasor. Where the defendant has the ability to control a person who is known or should be known to engage in injurious conduct, the law appropriately requires the defendant to use reasonable care to control that person in order to prevent harm.
An analogous basis for recovery has been recognized under the law of Alabama in Swanner v. United States, 275 F.Supp. 1007 (M.D.Ala.1967), rev. on other grounds, 406 F.2d 716 (5th Cir. 1969), on remand, 309 F.Supp. 1183 (1970). There it was held that the special relationship between the victim, a government informant, and the government gave rise to the government's duty to protect him.
The concept that a special relationship — whether between the defendant and the victim or between the defendant and the tortfeasor — gives rise to a duty on the part of the defendant is well established in tort law. The court concludes, based on Swanner and § 319, that Alabama would recognize the cause of action asserted here. While defendant argues that the F.B.I. agents had no peculiar ability to control Rowe, significant factual questions remain as to the control exercised and exercisable as to this informant. Plaintiffs allege that the agents controlled Rowe, knew of his dangerous proclivities, and yet authorized him to take part in the mission which ended Mrs. Liuzzo's life. The facts as alleged state a cause of action premised on a duty to prevent harm which they knew or should have known would result.
More troublesome, however, is plaintiffs' cause of action based on Rowe's failure to prevent the murder found in paragraph 18(b) of the amended complaint. The Restatement basis for liability would clearly not apply to this cause of action, as plaintiffs have not even alleged that Rowe controlled or was able to control the Klansmen with whom he traveled on the day of the murder. No other basis for imposing a duty to prevent crime on an informant/infiltrator has been presented.
The general rule in tort law is that there is no duty to prevent the commission of a tort or crime. Peck v. United States, supra. The presence of other factors may lead to the imposition of such a duty, but the court is aware of none in this type of situation. Moreover, imposition of liability on the United States for its informant's failure to prevent a crime committed in his presence would have profound ramifications on the decision to use informants to aid in the investigation of crime. The court's comments in an earlier opinion on the use of informants are equally relevant here:
Imposition of a duty on informants to prevent crimes committed in their presence would go beyond settled principles of tort law and would also have effects on the use of informants, effects which this court is reluctant to cause. For these reasons, the court declines to hold that, as a matter of law, Alabama would impose such a duty. Consequently, defendant's motion to dismiss for failure to state a claim on which relief can be granted is granted only as to paragraph 18(b) of the amended complaint.
Summarizing, defendant's motion to dismiss is granted in part only. The court lacks jurisdiction of those claims which assert the vicarious liability of the government for Mrs. Liuzzo's death, and those claims which arise out of the formulation of informant policy or the decision to use informants against the Klan. As to these claims, the motion to dismiss is granted. Plaintiffs' cause of action asserted in paragraph 18(b) of the amended complaint is dismissed for failure to state a claim on which relief can be granted. Defendant's motion to dismiss is denied as to the balance of the case.
III. Motion to Compel
Plaintiffs have moved for an order compelling defendant to produce for inspection and copying a copy of the "Rowe Task Force Report." Plaintiffs initially sought this report pursuant to a request for the production of documents, and defendant objected on the basis of privilege. Prior to setting forth the positions of the parties with respect to this motion, the court will give a brief history of the Report in question.
In July of 1978, members of the Senate Judiciary Committee, Senators Edward M. Kennedy and James Abourzek, indicated an intent interest in receiving a full report of an investigation of allegations that Gary Thomas Rowe had committed illegal acts while an F.B.I. informant.
Following receipt and review of the OPR Rowe Task Force Report, Attorney General Civiletti requested certain modifications which, as of mid-October, had not yet been made. Plaintiffs moved to compel the production of the report in October of 1980, 15 months after the report was first delivered to the Attorney General. Oral argument on this motion was heard on December 16, 1980. On the day before the hearing, the Attorney General released a document entitled
The OPR Task Force Report exceeds 300 pages in length. The Task Force's investigation focused on
The Report contains information regarding Rowe's activities with the Klan from the time that he was recruited by the F.B.I. through the federal prosecution of the Klansmen for Mrs. Liuzzo's murder.
Plaintiffs argue that the Report contains information relevant to their causes of action and is thus discoverable under F.R.C.P. 26. Defendant contends that the Report is protected from disclosure by operation of executive privilege, and in support of this contention, has submitted the declarations of Attorney General Benjamin Civiletti and Counsel on Professional Responsibility Michael E. Shaheen, Jr. On December 18, the court ordered defendant to produce the Report for an in camera inspection. Defendant's initial position, as reflected in its brief, was that the court should deny plaintiffs' motion to compel without resort to an in camera inspection of the document. During oral argument, however, the government indicated its willingness to produce the Report for the court's inspection if the court so ordered.
The component of executive privilege asserted by defendant in this case is the "deliberative process" privilege. This privilege protects from discovery "intra-governmental documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated." Carl Zeiss Stiftung v. V. E. B. Carl Zeiss Jena, 40 F.R.D. 318, 324 (D.D.C. 1966), aff'd sub nom. V. E. B. Carl Zeiss, Jena v. Clark, 384 F.2d 979 (D.C.Cir.), cert. den. 389 U.S. 952, 88 S.Ct. 334, 19 L.Ed.2d 361 (1967). The theory on which the privilege is based is that candid and confidential internal debate is necessary to enable government officers to carry out their functions. "The purpose of this privilege is to foster freedom of expression among governmental employees involved in decision-making and policy formulation." McClelland v. Andrus, 606 F.2d 1278, 1287 (D.C. Cir.1979).
The privilege does not, however, provide blanket protection to intra-governmental communications. Factual data are not protected, as disclosure would not hinder the flow of information in the decision making process. In re Franklin National Bank Securities Litigation, 478 F.Supp. 577, 582 (E.D.N.Y.1979). The privilege protects communications that are a part of the decision making process, and raw data on which decisions can be formulated do not have the protection of the privilege. McClelland v. Andrus, supra, 606 F.2d at 1289; Vaughn v. Rosen, 523 F.2d 1136, 1143-45 (D.C.Cir. 1975).
The requirements for invoking the privilege are set forth in United States v. Reynolds, 345 U.S. 1, 7-8, 73 S.Ct. 528, 531-532, 97 L.Ed. 727 (1953):
The declaration of Attorney General Civiletti includes such a formal claim, and sets
The government argues that the Report is privileged because it relates to internal advisory policy deliberations of the Department of Justice. The government states that the Report is but a tentative draft that was submitted to the Attorney General for revision. According to defendant, the Report constitutes a part of the decision-making process within the Department of Justice, and is protected by the privilege. Although it concedes that the privilege is a qualified one which can be overcome by an adequate showing of need by plaintiffs, the government argues that plaintiffs have failed to show a need for the Report, as the material is discoverable in other ways and from other sources.
Plaintiffs maintain that the Report is not privileged, as it is simply a report of an investigation into Rowe's activities and related matters. As such, according to plaintiffs, it consists of factual data not protected by the privilege. Alternatively, plaintiffs argue that at least those portions of the Report that are factual should be segregated and produced. Plaintiffs also argue that they have a substantial need for the Report as the evidence accumulated therein is not otherwise available to them. They also point to the relevancy of the Report to their causes of action and argue that disclosure is particularly warranted in this case as the government is the defendant in an action based on serious and substantial allegations of its own wrongdoing. In this type of situation, according to plaintiffs, the weight given to the government's professed need for secrecy must be reduced.
This motion poses a difficult issue. A formal claim of privilege has been made by the Attorney General of the United States, and he asserts that disclosure of this document would jeopardize the internal decision-making processes of the Department of Justice. This claim cannot be taken lightly. Courts are and should be reluctant to interfere with the internal processes of another branch of government.
Also before the court, however, are the five plaintiffs, children of a slain civil rights
The claim in this case is made under Rule 34 of the Federal Rules of Civil Procedure, with reference to Rule 26(b) as to the scope of discovery permitted. Rule 26(b) provides that a party, in this case the plaintiffs, "may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action...." The rule continues to emphasize the breadth of permissible discovery by stating:
The requested Report is relevant to the subject matter of this litigation. In fact it is a thorough investigation of Rowe's activities as an informant and his handling by the agents of the F.B.I., including his activity regarding the death of Mrs. Liuzzo. The Report contains information that would be admissible and would likely lead to the discovery of admissible evidence. Thus, except for the claim of privilege, the Report should be disclosed.
The court must accommodate the government's professed need for secrecy with the plaintiffs' need to prove their case. In reaching the proper resolution of the respective needs of the parties, guidance can be found in Proposed Rule 509 of the Federal Rules of Evidence.
"Official information" is defined in Rule 509(a)(2) to include information
Rule 509(e) suggests ways of accommodating the needs of the parties when a claim of privilege is sustained:
In this case, a formal claim of privilege by the Attorney General has been asserted. It is argued that disclosure of the report would jeopardize not only the deliberative processes involved in this investigation but in other investigations as well. Although the government produced the Report
In this situation, the court believes it would be inappropriate for it to go behind the declarations made by the Attorney General and Counsel on Professional Responsibility Michael Shaheen to make its own determination of the privilege claim. The declarations of these governmental officers are sufficient to find the Report presumptively privileged. Thus, although the court ordered the Report available for in camera inspection, no independent assessment of the privilege claim will be made which is based on the Report itself. This approach reduces judicial interference in the internal workings and autonomy of the executive branch, and gives due regard to the formal claim of privilege asserted by the Attorney General. This approach is particularly appropriate in a discreet civil action against the government. The government is in the best position to make the final judgment as to the need for the privilege when there are other effective ways to protect the plaintiffs.
The issue in this case is not the same as in United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974). There the court was faced with a confrontation between the executive claiming privilege and the court's effort to provide a fair forum for the prosecution of crime. There the court held that in such a confrontation the court must determine whether the privilege exists. In no other way could the interests of a fair prosecution be accommodated. In this case, the confrontation is between the executive claim of privilege and the efforts of plaintiffs in a civil action to obtain evidence relevant to that action. There is no need for the courts to intrude in this type of case and make the harsh determinations necessary in the Nixon case. Here there are intermediate steps that can be taken to protect the privilege as claimed and also to protect the plaintiffs. This court therefore sustains the claim of privilege based on the affidavits supporting the claim and will not order the production of the Report as requested by plaintiffs.
Plaintiffs' needs, however, can and will be met. Plaintiffs have asserted a substantial need for the information contained in the Report, a need which cannot be met in any other way. If protection of the Report from disclosure truly "deprives the plaintiffs of material evidence" to prove their allegations, the court will follow the suggested procedure in Rule 509(e) and enter a finding of liability on the part of the defendant as to the claims dealt with earlier in this memorandum opinion that remain in the case. The extent of plaintiffs' damages will then be the remaining issue as to those claims.
This approach, it should be emphasized, is adopted to reconcile the competing interests present in this particular case. Plaintiffs have survived two substantive motions to dismiss, and have presented the court with a case which is neither frivolous nor beyond belief. Indeed, the converse is true. The record in this case reflects evidence of considerable violent and illegal activity on the part of Gary Thomas Rowe, activity which was, at least at times, apparently known of by his contact agents. The court is not here deciding that plaintiffs have shown a substantial likelihood of success on the merits, but rather is simply stating that their claims are based on allegations which are, in part, currently supported by some evidence.
Moreover, this approach is appropriate in this type of case because it allows plaintiffs to realize their goals — the award of money damages for their losses — while not intruding on the internal processes of the executive branch. Nor is the government unduly penalized by the court's resolution of this issue. The material protected here does not consist of "state secrets," disclosure of which would jeopardize the security or welfare of this nation. Rather, the material sought pertains instead to social norms and policies which in turn relate to choices made by the government when faced with law enforcement needs, competition between the rights of individuals and the conduct of
The government asserts that there is no reasonable way in which facts in the Report can be separated from the conclusions. Because the substance of the Report deals directly with the issues involved in this law suit, because the government is claiming its privilege as to the whole Report, because the claim of privilege is sustained, and because the government asserts that there is no way in which non-privileged material can be separated out from the rest of the Report, only a very narrow issue remains for determination by this court. That issue is whether the plaintiffs are "deprived of material evidence" by the grant of the privilege. Proposed Rule 509(e). If they are, judgment of liability should be entered for the plaintiffs and a hearing set on damages. If they are not, the case should be set for trial on all issues remaining. Defendant points to the fact that over 10,000 pages of documents have been turned over to plaintiffs already. However, while the number of pages standing alone may appear impressive, mere numbers cannot reflect the adequacy of the information contained in the documents themselves. Plaintiffs point to the fact that many of their discovery requests have been objected to on various grounds, and state that the government "would have the court restrict plaintiffs' discovery within a circular cell which would bar access to the Report because its facts were `elsewhere available' and yet bar access to those facts because they were not `discoverable.'" Letter to the court from counsel for plaintiff Jack Novik, January 5, 1981.
The issue of whether the plaintiffs are "deprived of material evidence" by the claims and grant of privilege will be set for hearing. The parties are invited to offer within ten days suggestions to the court on efficient and probative methods to resolve this issue.
The declaration of Michael Shaheen is also offered in support of the claim of privilege. Mr. Shaheen states that he oversaw the work of the Task Force, and reviewed, commented on, and submitted the Report to Attorney General. He claims that the Report is a predecisional communication, and that to the extent that the Report includes factual accounts, these accounts are the composite product of selection, interpretation, and integration by the Task Force. According to Mr. Shaheen, there are no parts of the Report which are strictly factual and not part of the analytical process. Thus, he claims, no parts of the Report not already available can be segregated for release. He claims the Report must remain confidential in order to: protect the ability of the OPR and Department of Justice to receive information from individuals who would not come forward unless confidentiality is maintained; protect the lives of various informants; and protect the frank, candid environment within the Department of Justice necessary to the deliberative process.
Certain aspects of the declarations touch on privileges not briefed by defendant, e. g., the informant's privilege (protecting information which would jeopardize the safety of informants) and the protection of grand jury material under F.R.Cr.P. 6. This opinion does not deal with any privilege other than that briefed by the government, the deliberative process privilege. Defendant has attempted to reserve its ability to argue the applicability of these privileges should it become necessary. Memorandum to Accompany In Camera Submission, n.1. The court's resolution of this motion has rendered defendant's position on the other privileges moot. However, the court notes that the better procedure would have been to present all privilege claims in the first instance in order to avoid the necessity: (1) to determine if the nonassertion of claimed privileges operates to waive those claims, and (2) if the privileges are not so waived, to determine the issues involved on a motion to compel on a piecemeal basis. The defendant is instructed to follow this approach if a similar motion is presented in the future.