Investigacion Jorge Eliécer Gaitán, Jorge Eliecer Gaitan, Bogotazo

UNITED STATES DISTRICT COURT
DISTRICT OF COLUMBIA

____________________________________________ PAUL WOLF, Plaintiff, v. CENTRAL INTELLIGENCE AGENCY, et. al. Defendants. ____________________________________________ Civ. No. 01-00729 (PLF)
MEMORANDUM IN OPPOSITION TO FBI'S
MOTION FOR SUMMARY JUDGMENT
The Plaintiff, Paul Wolf, hereby presents this his memorandum in opposition to the FBI's motion for summary judgment in this case.

Facts
This is an action under the Freedom of Information Act ("FOIA"), 5 USC Section 552, as amended, to order the production of CENTRAL INTELLIGENCE AGENCY ("CIA") and FEDERAL BUREAU OF INVESTIGATION ("FBI") records concerning JORGE ELIECER GAITAN, Colombian Presidential candidate born January 26, 1903 in Bogota, Colombia, and assassinated on April 9, 1948 in Bogota.
The requested records will contribute significantly to public understanding of the operations or activities of the government as they reflect the activities of U.S. government agencies with respect to important formative events in the modern political life of the nation of Colombia. Colombia is now the subject of a multi-billion dollar United States aid program funded by U.S. taxpayers. This Court has jurisdiction over this action pursuant to 5 USC Section 552 (a) (4) (B) .
Plaintiff PAUL WOLF is an independent researcher and writer who resides in Apex, North Carolina and is working on a research and publishing project on the subject matter of these requests. Mr. Wolf publishes the results of his research about Colombia to the U.S. and international press and on a website he created and updates regularly. Defendants CENTRAL INTELLIGENCE AGENCY and FEDERAL BUREAU OF INVESTIGATION are agencies of the United States government, and have possession and control over records that Plaintiff seeks.
By letter dated October 27, 2000 to the FBI in Washington, Plaintiff requested any and all records concerning JORGE ELIECER GAITAN, Colombian Presidential candidate born January 26, 1903 in Bogota, Colombia, and assassinated on April 9, 1948 in Bogota. Exhibit A to Hodes Declaration attached to FBI brief.
With respect to Plaintiff's request, on November 6, 2000 FBI responded to the request by requesting either a privacy waiver or proof of death of GAITAN. (FBI assigned the request FOIA Request No. 0932523-000). Exhibit B to Hodes Declaration.
By letter dated November 12, 2000 Plaintiff forwarded to FBI proof of death in the form of a Scotland Yard investigation of the assassination of JORGE ELIECER GAITAN (the government of Colombia commissioned Britain's Scotland Yard to investigate the assassination). Exhibit C to Hodes Declaration. By letter dated December 5, 2000 FBI acknowledged its receipt of the Scotland Yard report. Exhibit D to Hodes Declaration.
On April 4, 2001 Plaintiff Wolf filed this action in this court seeking an order compelling the release of the requested information. On May 8, 2001 FBI made a partial release of 14 pages of responsive material. Exhibit E to Hodes Declaration. On June 12, 2001 FBI reviewed the material again and made additional releases of information to plaintiff previously withheld. Exhibits F & G to Hodes Declaration. on June 19, 2001 the State Department forwarded to Mr. Wolf three pages of information referred to it by the FBI pursuant to this request, a 1956 State Department memorandum entitled "SABADO Urges That an Investigation be Reopened into the Murder of Jorge Eliecer Gaitan". This material contains redactions made by the FBI, but no redactions by the State Department. Exhibit 1 hereto.

ARGUMENT
1. The FBI search failed to find numerous responsive FBI records, copies of which plaintiff found in State Department files at the National Archives. The FBI must search for and account for these unproduced records, and all others located as a result of these efforts.

Plaintiff Wolf has made his own search for responsive records in the National Archives system and has located numerous copies of FBI records responsive to his request among State Department records in the national archives system. The FBI records were not produced or accounted for in the FBI's presentation to this court. The original FBI records are not at the National Archives and remain in the possession of the FBI, according to information provided to Mr. Wolf by the National Archives.
Plaintiff examined State Department files in the National Archives system for the years 1945-1948 as part of his research. In these State Department files he found numerous copies of FBI memoranda forwarded to the State Department by the FBI. These FBI documents contain extensive reporting and analysis of the activities of subject of Plaintiff's FOIA request, JORGE ELIECER GAITAN, and of GAITAN's political movement in Colombia. See Exhibit 2 hereto, copies of FBI documents from State Department files. None of these records have been produced or accounted for by the FBI in this case, and clearly the FBI search has been inadequate in failing to account for these many responsive records.
A possible explanation for the failure to locate these records is contained in the FBI's presentation at page 14 of Exhibit G to the Hodes Declaration. At page 14 is a memo dated July 26, 1946 from the FBI's legal attache in Bogota, Edwin 0. Johnson to Director, FBI, which states in part,

In view of the fact that he represents dissident elements of the Liberal Party and his activities tie in with the political picture as a whole in Colombia, this individual case file is being closed and his activities subsequent to April, 1946, are being reported in the Bogota file, "POLITICAL SITUATION IN COLOMBIA - FOREIGN POLITICAL MATTER".

The Hodes Declaration filed by the government does not describe any actions taken to search this new file said by FBI's own records to contain records related to GAITAN. Rather the Hodes Declaration describes only a search of the individual file on GAITAN, HQ 109-317, which resulted in the release of records to date. Hodes Declaration, p. 7. Thus the FBI's own declaration contains evidence of the existence of unsearched and unproduced responsive records. Nor does the Hodes Declaration contain a statement that all files likely to contain responsive materials were searched. For these reasons the search described in this case is inadequate and cannot support a summary judgment. Nation Magazine v. H.S., 71 F.3d 885,890 (D.C.Cir. 1995).
The Court of Appeals for our circuit further addressed the standard for what constitutes an adequate search for records in the FOIA context in the recent case Campbell v. United States Department of Justice, 164 F.3d 20 (D.C.Cir. 1998). The Court of Appeals held that an agency must revise its assessment of what is a reasonable search for records in a particular case to account for leads that emerge during its inquiry. A court should then evaluate the reasonableness of an agency's search based on what the agency knew at the conclusion of the search rather than what the agency speculated at its inception. If the record leaves substantial doubt as to the sufficiency of the search, summary judgment for the agency is not proper. Campbell, 164 F.3d at 27-28.
The Court of Appeals again addressed this issue in the recent case Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 327 (D.C.Cir. 1999), where the Court held that positive indications of overlooked materials would prevent a grant of summary judgment for the agency.
Further, in order to obtain summary judgment, FBI must show that no issue of genuine fact exists with respect to these tests, and the facts must be viewed by the court in the light most favorable to the requestor. Weisberg v. U.S. Dept. of Justice, 745 F.2d 1476,1485 (D.C.Cir. 1984).
On this record, FBI is not entitled to summary judgment and the court must order the FBI to conduct a search in all places where responsive records would be located to find all relevant unproduced records, including the file named "POLITICAL SITUATION IN COLOMBIA - FOREIGN POLITICAL MATTER" referred to at Page 14 of Exhibit G to the Hodes Declaration, and other file names and numbers apparent on the face of the documents found by Plaintiff and produced herewith. The FBI must be required to search in all record systems which might contain the records, and must search under file headings and numbers revealed on the copies of the FBI records located by Plaintiff. Further, FBI must search in places where files from the FBI's Legal Attaches in Bogota in the 1940's might be stored.
2. Additionally plaintiff located references in State Department documents to activities of FBI legal attaches related to JORGE ELIECER GAITAN that are not reflected in the documents released by the FBI, nor the copies of FBI records found by Plaintiff.

In addition to copies of FBI records related to GAITAN, plaintiff located State Department records for the period 1945-48 in the National Archives system that refer to actions of FBI legal attaches related to GAITAN and his movement. See Exhibit 3 hereto. However these activities of FBI employees are not reflected in the documents produced by the FBI, nor the other FBI records copies of which plaintiff located in State Department files. Plaintiff therefore believes that there are FBI records that document these activities of its employees in relation to GAITAN. Plaintiff located State Department records that show that eight (8) FBI legal attaches worked in the U.S. embassy in Bogota during the period 1945-48. Given the FBI's extensive file documentation procedures there must exist records created by these attaches, and they have not been located to date by FBI's search.
This Court must require the FBI to search for these records in any file storage systems that might contain records created by Legal Attaches in Colombia in the 1940's.

3. The FBI has not presented evidence that it undertook basic steps to ascertain whether individuals are dead or alive and therefore the b(7)(C) exemption claims fails.

The FBI has redacted the names of certain individuals claiming FOIA exemption b(7)(C). Very recently the Court of Appeals for our circuit has held that the FBI must explain in its declarations what steps it has undertaken to determine whether a person is dead or alive where the FBI claims a b(7)(C) exemption. Schrecker v. U.S. Dept. of Justice, No. 00-5033, (D.C.Cir. June 26, 2001), copy of opinion from court website attached as Exhibit 4 hereto. The Court of Appeals explained that death of an individual diminishes the privacy interest which is protected under exemption b (7) (C) , and that the FBI must weigh the diminished privacy interest in its balance of public versus privacy interests.
In this case the FBI has not explained what steps it took to determine whether the persons named are dead or alive even though the documents in this case are over fifty-five years old. The age of the document makes it more likely that the individuals are deceased, and their privacy interest thus greatly reduced. In fact the FBI in this case released the names of FBI agents it determined to be deceased, a recognition that release in such circumstances is appropriate. Hodes Declaration, p. 15. FBI did not describe what efforts it undertook to determine whether FBI agents are still alive, nor whether the non-FBI personnel at issue are still living. Due to this deficiency, in light of the recent Schrecker case opinion, the FBI's motion for summary judgment must be denied.
Further FBI has not properly balanced privacy interests versus the public interest in this case. The public interest derives from the fact that the United States is currently engaged in a multi-billion dollar aid program to Colombia. There are allegations in Colombia that the United States engaged in improper activities related to the political movement and ultimate assassination of JORGE ELIECER GAITAN in 1948. The U.S. public needs to know the facts about truth of these allegations in order to be educated as to the wisdom of our aid program to Colombia. As is evident from the CIA Studies in Intelligence article "The Bogotazo", attached to Plaintiff's Motion for Summary Judgment against the CIA, the events surrounding the GAITAN movement and his assassination are seminal events in the modern history of Colombia, and in the formation of U.S. intelligence capabilities, that continue to affect events to the current day. Assuming that the allegations against the United States are untrue, the U.S. public should be informed through a full release of documents relating to GAITAN. If the allegations are in fact true in some part, this is information the U.S. public should have in making its political decisions as to whether to back the Colombia aid program today.
The FBI weighed none of these public interests, and ascribed much too much weight to the privacy interests as shown above. A proper weighing of the interests will result in the release of the requested information.

4. Informants are not personnel of the FBI and thus exemption b(2) does not apply.

FOIA Exemption b(2) exempts matters "related solely to the internal personnel rules and practices of an agency". FBI informants are not personnel of the FBI, rather they are non-FBI employee members of the public at large who provide information to that agency. It is likely that the informants in this case are foreign nationals given the nature of the documents, and they are thus even further removed from being "personnel" of the FBI. There is nothing in the Hodes declaration that states that the informants are personnel of the FBI, and counsel is informed by Attorney James H. Lesar that in the Campbell case cited above, the FBI admitted before the district court that FBI informants are not FBI employees. See Campbell v. U.S.. Dept. of Justice, Civ. Action No. 89-3016 (D.D.C.), Plaintiff's Local Rule 7.1(h) Statement, paragraph 34.
The Court of Appeals held emphatically in Jordan v. U.S. Dept. of Justice, 591 F.2d 753,763 (D.C.Cir. 1978) that the b(2) exemption is available only for internal personnel rules and internal personnel practices of an agency. The Court reasoned that such purely internal personnel matters would be of little interest to the public. Informants on the other hand are members of the public, and their activities are frequently of very high public interest due to the fact that their actions impact members of the public. (See Black MassThe Irish Mob, the FBI and a Devil's Deal, Lehr & O'Neill, BBS Public Affairs, New York, 2000 - a book by Boston Globe reporters about a lengthy pattern of extreme misconduct involving the FBI and its informant "Whitey" Bulger in Boston, Massachusetts, which resulted in numerous unprosecuted crimes by the informant, including multiple murder, and has resulted in the recent indictment of his FBI handler).
The Court of Appeals held that the plain meaning of the b(2) exemption is that it can only be used to withhold data related to internal personnel rules and internal personnel practices. This rationale does not support use of the exemption in this case involving non-personnel informants. Jordan, 591 F.2d 753, 763. The FBI's assertion of the b(2) exemption must be overruled by the court.

5. The records at issue are not law enforcement records and FOIA exemption b(7)(D) does not apply.

The records at issue are not criminal investigative or law enforcement records, rather they are political reporting on political developments in the nation of Colombia. The FBI has not asserted the b(1) national security exemption for the records. Nor has the FBI in the Hodes Declaration or otherwise provided information to establish a connection between GAITAN and a possible security risk or violation of federal law, as is required under relevant case law. Pratt v. Webster, 673 F.2d 408,420 (D.C.Cir. 1982). Thus the FBI has entirely failed to establish that the threshold test for the b(7) exemption exists - that the records were compiled for law enforcement purposes as defined by the Court of Appeals in the Pratt v. Webster case cited above. (Plaintiff would note that the FBI refers in passing to GAITAN's "Fascist political activities", Hodes Decl. p. 7, n.1, however this statement is contradicted by the documents released in which the FBI states, "He (GAITAN) has been accused of being a Fascist and has actually used some Fascist methods, but he is strictly nationalistic." Page 2 of Exhibit G to the Hodes Declaration.)
The records at issue do not meet the threshold standard for being records compiled for law enforcement purposes, and the exemption claim should be denied.
6. The FBI's exemption b(7)(D) claim fails because the Hodes declaration does not contain probative evidence that the sources did in fact receive an express grant of confidentiality.

The FBI on page 16 of its brief states that the confidential informants at issue received express understandings of confidentiality. However, the Hodes declaration does not contain probative evidence that the sources did in fact receive an express grant of confidentiality as is required by a decision of our Court of Appeals in order for an agency to request summary judgment in an FOIA case. Campbell v. U.S. Dept. of Justice, 164 F.3d 20,34 (D.C.Cir. 1998). The Hodes declaration contains none of the forms of evidence cited in Campbell: notations on the face of a document, personal knowledge of an official familiar with the source, a statement by the source, or contemporaneous documents discussing practices or policies for dealing with similarly situated sources. Campbell, 164 F.3d at 34.
Rather the only specific evidence in the declaration is that informants are periodically indoctrinated against revealing their relationship with the FBI in any way. Hodes Declaration, p. 20. This statement is the reverse of what is required by Campbell, in that it shows the FBI's desire to keep the relationship with an informant secret, but says nothing about whether the informant required that the relationship be confidential.
The Hodes declaration fails to provide the probative evidence necessary to sustain an express assurance of confidentiality, and the FBI's motion for summary judgment must fail.

CONCLUSION
For the reason stated, the FBI's motion for summary judgment must be denied, and the Court should order the FBI to conduct an adequate search as outlined above, account for its records and release them to plaintiff, and to release the withheld information to plaintiff, or where FBI claims exemption, to justify its withholdings in accordance with law, as described above.

Respectfully submitted,

DANIEL S. ALCORN
Counsel for Plaintiff
D.C. Bar No. 383267
2952 Yarling Court
Falls Church, VA 22042
(703) 698-0225

UNITED STATES DISTRICT COURT
DISTRICT OF COLUMBIA

____________________________________________ PAUL WOLF, Plaintiff, v. CENTRAL INTELLIGENCE AGENCY, et. al. Defendants. ____________________________________________ Civ. No. 01-00729 (PLF)
PLAINTIFF'S STATEMENT OF MATERIAL FACTS GENUINELY IN DISPUTE
The Plaintiff, Paul Wolf, hereby presents this his statement of material facts genuinely in dispute pursuant to Local Civil Rule 7.1(h) in response to Defendant FBI's Statement of Material Facts as to Which There is No Genuine Dispute.
1. In response to paragraph 1 of Defendant FBI's Statement of Material Facts as to Which There is No Genuine Dispute, Plaintiff admits that he sent a request letter dated October 27, 2000 to the FBI, except that his request was for all records "concerning" Jorge Eliecer Gaitan and requests records at any location, not just FBI headquarters. Plaintiff refers to the request letter itself for its contents, which are not all described in Defendant's paragraph 1. See request letter, Exhibit A to Hodes Declaration.
2. Plaintiff admits in response to defendant's Paragraph 2 that FBI responded to him with a November 6, 2000 letter requesting either proof of death or a privacy waiver. The content of the letter speaks for itself and contains more material than set out in defendant's paragraph 2. See letter attached as Exhibit B to the Hodes Declaration.
3. Plaintiff admits FBI's paragraph 3, in that he provided proof of death of JORGE ELIECER GAITAN in the form of a November 12, 2000 letter to the FBI containing a copy of an investigation of GAITAN's assassination by Britain's Scotland Yard investigative agency, which had been commissioned by the Colombian government. See copy of letter and Scotland Yard report attached as Exhibit C to the Hodes Declaration.
4. Plaintiff admits the assertions of defendant's paragraph 4, and a copy of the acknowledgment letter is attached as Exhibit D to the Hodes Declaration.
5. Plaintiff admits that by letter dated May 8, 2001, FBI forwarded 14 pages of documents responsive to his request. The content of that letter speaks for itself. See letter attached as Exhibit E to Hodes Declaration.
6. Plaintiff admits that by letter dated June 12, 2001 FBI HQ furnished plaintiff with 14 pages of material on which the FBI had released more information than in the May 8, 2001 release. The 14 pages of documents contained with the June 12, 2001 release are the same 14 pages contained in the June 12, 2001 release. See letter and documents attached, Exhibit F to Hodes Declaration. Further on June 19, 2001 the State Department sent a letter to Plaintiff containing a release of 3 pages of material referred by the FBI to the State Department for release determination. The material contained redactions at the request of the FBI. See Exhibit 1 to Plaintiff's brief.
7. Plaintiff Wolf has made his own search for responsive records in the National Archives system and has located numerous copies of FBI records responsive to his request among State Department records. The FBI records were not produced or accounted for in the FBI's presentation to this court. The FBI records are not at the National Archives and remain with the FBI, according to information provided to Mr. Wolf by the National Archives. Plaintiff examined State Department files in the National Archives system for the years 1945-1948 as part of his research. In these State Department files he found numerous copies of FBI memoranda forwarded to the State Department by the FBI. These FBI documents contain extensive reporting and analysis of the activities of subject of Plaintiff's FOIA request, JORGE ELIECER GAITAN, and of GAITAN's political movement in Colombia. See Exhibit 2 hereto, copies of FBI documents from State Department files. None of these records have been produced or accounted for by the FBI in this case.
8. In addition to copies of FBI records related to GAITAN, plaintiff located State Department records for the period 1945-48 in the National Archives system that refer to actions of FBI legal attaches related to GAITAN and his movement. See Exhibit 3 hereto. However the activities of FBI employees are not reflected in the documents produced by the FBI, nor the other FBI records copies of which plaintiff located in State Department files. Plaintiff therefore believes that there are FBI records that document these activities of its employees in relation to GAITAN. Plaintiff located State Department records that show that eight (8) FBI legal attaches worked in the U.S. embassy in Bogota during the period 1945-48. Given the FBI's extensive file documentation procedures there must exist records created by these attaches, and they have not been located to date by FBI's search.
9. In this case the FBI has not explained what steps it took to determine whether the persons named are dead or alive even though the documents in this case are over fifty-five years old. The age of the document make is more likely that the individuals are deceased, and their privacy interest thus greatly reduced. In fact the FBI in this case released the names of FBI agents it determined to be deceased, a recognition that release in such circumstances is appropriate. Hodes Declaration, p. 15. FBI did not describe what efforts it undertook to determine whether FBI agents are still alive, nor whether the non-FBI personnel at issue are still living.
10. FBI informants are typically not personnel of the FBI, rather they are non-employees of the FBI who provide information to that agency. It is likely that the informants in this case are foreign nationals given the nature of the documents, and they are thus even further removed from the category of "personnel" of the FBI. Certainly nothing in the Hodes declaration states that the informants are personnel of the FBI, and thus the FBI's evidence cannot sustain its summary judgment motion.
11. The records at issue are not criminal investigative or law enforcement records. Rather they are political reporting on the known political developments in the nation of Colombia. FBI has not asserted the b(1) national security exemption for the records, nor has the FBI in the Hodes Declaration or otherwise provided information to establish a connection between GAITAN and a possible security risk or violation of federal law.
12. The FBI on page 16 of its brief states that the confidential informants at issue received express understandings of confidentiality. However, the Hodes declaration does not contain probative evidence that the sources did in fact receive an express grant of confidentiality as required by a decision of our Court of Appeals. Campbell v. U.S. Dept. of Justice, 164 F.3d 20,34 (D.C.Cir. 1998). The Hodes declaration contains none of the forms of evidence cited in Campbell, notations on the face of a document, personal knowledge of an official familiar with the source, a statement by the source or contemporaneous documents discussing practices or policies for dealing with similarly situated sources. 164 F.3d at 34.

Respectfully submitted,

DANIEL S. ALCORN
Counsel for Plaintiff
D.C. Bar No. 383267
2952 Yarling Court
Falls Church, VA 22042
(703) 698-0225