"FOIA Lawsuit Results in Release of Thousands of Documents" by Rebecca Moore
With the court-ordered participation of a dozen other federal agencies, the FBI has released thousands of previously-withheld pages in its files on Jonestown and Peoples Temple. As a result of those releases - most of which occurred within the last 12 months - court filings and government documents in the lawsuit McGehee & Moore v. U.S. Department of Justice now fill a twenty-four inch file box.
The lawsuit was filed in September 2001 in order to compel the FBI to provide an index to materials it released to us in 2000. But the case is both more complex, and yet more simple, than that. It is more complex in that the initial release of 48,000+ documents on three compact discs led to a number of other legal issues; and it is more simple in that it comes down to meeting the basic requirements of the Freedom of Information Act.
While the case is not yet as complicated, or lengthy, as Jarndyce and Jarndyce in Dickens' Bleak House, it does entail a number of considerations. First, of course, is the lack of an index which would enable people using the discs to locate the records they were looking for. Second, the FBI had referred a number of documents in its possession to various government agencies, thus avoiding evaluation and release of their contents. Third, the FBI and other agencies withheld a number of documents by claiming a variety of exemptions which range from national security to privacy. Fourth, the thoroughness of the initial search which comprises the three CDs is now in question, given the recent release to us of documents which apparently do not appear on them (though, without an index to the CDs' contents, it is hard to tell). Finally, the illegibility of some documents makes their release meaningless, for all practical purposes.
This article examines each of these issues in turn. It reports on the progress of the case after four years in litigation. But first, it presents the background and events leading up to its filing.
In October 1998 we filed a FOIA request with the FBI asking for a copy of all lists it had used to compile the final tally of Peoples Temple members who died in Jonestown. A month and a half later the FBI replied that it had located 48,738 pages of material "which may or may not be related" to the request. The agency said it would duplicate the pages at the cost of $.10 per page (although the first 100 pages would be free). As an alternative, we could examine the documents at no cost in the FBI Reading Room in Washington, D.C. Since neither $4863.80 nor a trip to D.C. was feasible, we wrote to several members of Congress asking for help. Rep. Henry Waxman (D-Calif.) interceded on our behalf. After a series of negotiations, the FBI agreed to put all of the documents onto compact disks, thus maximizing the release of documents while lowering the cost to requesters.
In the meantime, we had filed a number of additional FOI applications. These included a request for documents on my sister Carolyn Moore Layton; a request for "Dear Dad" letters collected in Jonestown; a request for documents used in preparing for trials against Larry Layton, who was accused of conspiracy to kill Congressman Leo Ryan; a request for records on seven Peoples Temple leaders; and other assorted issues.
In May 2000 the FBI sent us three CDs at no charge and a cover letter which stated that all of our requests were being addressed with this release. No index accompanied the CDs. Further, because the documents had been stored as graphic files (PDF) - in order to preserve their integrity as individual documents - the CDs were not computer-searchable. The FBI did provide an inventory folder to view the PDF contents of each CD, but an inventory is not the same as an index. In other words, a user might find an FBI inventory listing of "Cuban contacts," but have to search each individual page in order to find an individual's name - whether it was Fidel Castro or a Temple member who might have made such contacts - or a particular topic within the FBI designation.
At the same time, the FBI informed us that there were no main file records on a number of Temple leaders, including Carolyn Layton, Eugene Chaikin, Larry Schacht, Maria Katsaris, or Michael Prokes, among others.
Within a week we appealed the FBI's use of the (b)(6) exemption to the FOIA, which allows agencies to withhold "files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." For one thing, as we noted in our appeal letter, more than a dozen key figures were dead, from U.S. Ambassador John Burke, to Guyana Prime Minister Forbes Burnham. For another, many people had waived their right to privacy by writing books or going public in the media with denunciations of the Temple, such as Deborah Layton Blakey, George Klineman, or Tim Stoen. More than ninety people were interviewed on the record by Tim Reiterman and John Jacobs for the book Raven, and we provided their names and the page numbers of their statements. Other people voluntarily gave news media interviews, and still others involuntarily had their names appear in published reports. For all of these individuals we argued that - at least to the extent of their involvement Peoples Temple - they could not claim any privacy rights.
We also appealed the FBI's use of the (b)(7) exemption which allows withholding of records compiled for law enforcement purposes. Since the only person ever tried and convicted of a crime connected with Jonestown was Larry Layton, and since he was incarcerated at the time, we considered law enforcement issues to be moot. In addition, since the Temple had declared bankruptcy in December 1978, and its assets distributed within a few years - and 20 years before we filed our requests - we believe there were no further civil or criminal causes which warranted continued protection.
In response to these two appeals, the FBI sent a letter in September 2000 which affirmed its earlier decisions and denied both of our appeals. It did release two pages, however - a newspaper article from the Ukiah Daily Journal and one from the Sun Reporter - which should not have been classified in the first place.
The misuse of exemptions prompted us to file a FOIA suit against the FBI a year later. The release of thousands of documents in an inexpensive format was an initial step toward being responsive to those wanting to learn more about government interest in Peoples Temple and Jonestown. At the same time, however, without an index or searchable format, the CDs effectively hide information rather than revealing it by inundating requesters with an abundance of riches. Furthermore, the fact that the FBI responded to our appeals (dated May and July respectively) within a few months (September) indicated that the agency either had a searchable index which it wasn't telling us about; or, more likely, that it did not review each and every use of the exemptions, as required by law.
We also pointed out that some documents had been initially reviewed in 1979 and the early 1980s, and while the use of the exemptions at that time - especially concerning privacy - might have been legitimate, the passage of time should open all documents for review. The FBI had conducted a second review in the early 1990s, undoubtedly in response to a FOIA lawsuit filed by the Church of Scientology, which had resulted in the release of 40,000 additional pages, primarily information relating to its investigation of Leo Ryan's assassination; however, many of the pages we sought weren't even identified, much less considered, in that review. In the meantime, President Clinton had issued an Executive Order in 1994 calling for increased openness under the FOIA. In some respects, the creation of the CDs responded to this directive. In others, however, it did not, because FOIA staff at the FBI failed to recognize that more than twenty years had elapsed since Jonestown, and had declined to review exemptions accordingly.
Thus, on 30 August 2001 we filed a complaint for injunctive relief in U.S. District Court for the District of Columbia on the issues of exemptions and a usable index to the documents. We drew Judge John Garrett Penn on the bench. Our attorney was, and is, James H. Lesar.
Referrals to Other Agencies
A number of motions, counter-motions, and legal maneuvering occurred in the three years before Judge Penn issued an order on 23 November 2004 requiring the Department of Justice to file a report on the referrals of documents the FBI had made to other agencies. The case had grown from its challenge to the FBI's exemptions and the request for an index, to incorporate several additional issues.
For one thing, we had challenged the adequacy of the FBI's search for records. Although a FOIA caseworker at the FBI declared in November 2001 that the FBI had no lists of people who died in Jonestown, we received such a list from the FBI in January 2002. Thus, our FOIA request of October 1998 was finally answered.
Lesar concluded from this that not only had the FBI attempted to narrowly construe our request, but that its initial searches were inadequate. He also noted to the court that the FBI had failed to account for the many referrals made to other agencies (and thus, the de facto withholding of information), in contravention of previous court decisions in this matter. Judge Penn agreed, and on 6 June 2003 allowed our suit to be amended to examine the adequacy of the FBI's search and the issue of referrals, as well as its original request for a review of exemptions and an index.
We received a two hundred-page handwritten inventory the FBI had prepared in 1994 and 1995 that listed all of the records it felt belonged to other agencies - or at least required their permission prior to FBI release. It also recorded exemptions the FBI applied to the documents. By the end of this year we will have received all of the items noted, and then some, since the final tally is greater than that appearing in the 1994 and 1995 inventory.
The referrals presented an interesting challenge. They are identified on the CDs merely as items referred; but they are not described in any way other than to note the originating agency. What emerged from the release of these items is that a number of documents are not even mentioned on the CDs, such as documents from the White House. Still others did not appear on the inventory sheets provided by the FBI. In other words, according to the FBI's own records, the material presented on the CDs was incomplete.
Many, if not most, of these documents duplicate material already made public by other federal offices, such as the State Department, for example, and the Air Force. There were few surprises among the hundreds of cables released. Some helpful information emerged, however, in the form of various lists. The roll of people living in Jonestown who had registered as permanent residents of Guyana will clarify to a certain extent who exactly was living there. Numerous catalogs of survivors, those who died, those identified in the mortuary, and so on will help update and correct various rosters that appear on our website.
Reviewing these releases in conjunction with material already in the public domain will broaden society's understanding of Jonestown and Peoples Temple. It will also help set the historical record straight by providing factual information in the form of names, dates, times, places, and actions. For instance, a cable from the Defense Department to the FBI dated 24 November 1978 states that all 405 bodies found in Jonestown would be evacuated on that day; a short time later, a second cable states that many more dead were found under the bodies just removed. Other cables show that intensive efforts were made to search for survivors, including offering rewards to Amerindians for any information about the whereabouts of residents of Jonestown.
The Question of Exemption
The referring agencies applied their own exemptions to the release of material, to which the FBI added its own, in a contradictory and conflicting manner. Some items reveal the names of those who survived the tragedy of 18 November; some items withhold them under a privacy exemption. Given the fact that the names were released by the State Department to various news agencies in 1978, and that comprehensive lists were published in The New York Times and other news outlets, these privacy protections seem arbitrary and capricious. Another example: Dr. Joseph Lowery, then-president of the Southern Christian Leadership Conference, is mentioned by name in one document as attending the Black Church Consultation on the Implications of Jonestown in February 1979, while in another document his name is withheld. There are many examples of this kind of inconsistency in application of the exemptions.
Even when referring agencies released all information, the FBI applied its own exemptions. Still more disturbing is that the documents have a declassification date of 25 years from the date of review, rather than the date of the original document. This means that a cable originating within the State Department dated 18 December 1978 - and released by the State Department pursuant to this lawsuit - has a declassification date of 5 May 2029. That's because on 5 May 2004, when the FBI reviewed State's recent decision to release the cable, it applied the (b)(1) national security exemption, and thus started the 25-year clock ticking.
It is also clear from the referrals, as well as from the initial CD released by the FBI, that neither State Department nor the FBI has considered the itemized log of people we have identified who no longer, if ever, merit (b)(7) privacy considerations. Newly-applied exemptions that withhold information on 25-year-old documents result in classification as if this disaster happened last week, or last year, or perhaps on 11 September 2001. This lack of historical perspective - the failure to consider Peoples Temple and Jonestown in light of the end of the Cold War, the fall of Communism, and changing politics within the Western Hemisphere - explains why national security and privacy exemptions are made, but it does not justify them.
The release of these documents under court order raises several perplexing problems. First, to which agency do requesters file appeals regarding exemptions: to the FBI? or to the originating agency? Second, will they now be scanned and added to the CDs? These are questions the court may have to resolve.
Scope of Search
Our amended complaint also challenged the adequacy of the FBI's search for documents responsive to our request. In May 2000, the FBI said it had no "main file" records on Carolyn Moore Layton, Laurence Schacht, Maria Katsaris, and a number of other key figures who died in Jonestown. But in response to the lawsuit, the FBI was able to find a number of documents, both on CD (e.g., Maria Katsaris and Mike Prokes) and apparently not on CD. Individual hardcopies of items sent to us revealed a number of FBI interests.
One report indicated that the government spied on Larry Schacht in 1965 when he participated in an antiwar peace vigil outside the LBJ Ranch in Texas. The report noted his marijuana use, and his connection with the Houston Citizens for Action in Vietnam. It also mentioned its failed attempt to "get" him through his draft board in Houston. Richard Tropp ran afoul of the government by being party to a class action suit filed in Nashville in 1968 which asked for an injunction against National Guard units being sent to the troubled city. (The injunction was denied.) Eugene Chaikin's father and mother were born in Russia, and his father, David Wolff Chaikin, had subscribed to The People's World in 1942, and was a member of the Los Angeles Communist Party in 1951. Of course, since various FBI documents spell his name Chalkin - or Chaikan or, in one instance referenced a Fonoa Charkin - it's hard to tell if it's the right person. This party was under surveillance on suspicion of espionage: he was working at Hughes Aircraft.
Surprisingly, the FBI said it did not find anything on my sister Ann Elizabeth Moore, although the archives of the California Historical Society and the San Diego State University Library both have extensive documents - received under previous FBI FOIA requests - which she either wrote, is referenced, or have her signature on. The same is true for Jann Gurvich, who also reportedly had no documentation. Furthermore, are there no case files on the FOIA lawsuit Moore v. FBI which in 1983 challenged the national security exemptions made in the file on my sister Carolyn Layton? The file released to us in 2004 gave us even less than the initial release.
There is other evidence that the original search was inadequate. Documents on the CDs start and stop in the middle. There are gaps which show an incomplete search, such as the journal kept by Temple member Edith Roller. The diary extends over hundreds of pages, following Roller's activities in San Francisco and her move to Guyana. But bits and pieces of the journal appear scattered across separate CDs, and several months are missing. In addition, Roller notes the arrival of about 130 people between September 1977 and June 1978, but the meticulously-maintained Temple logs are gone, as are agricultural reports from the same time period.
Thus we remain skeptical about claims that the search which generated the CDs was as comprehensive as has been claimed. It does not appear that files the FBI may have maintained on individuals in Peoples Temple are necessarily on CD; there are significant gaps in the materials provided; and there are a number of duplicate items on disk. Nevertheless, the agency may proffer the CDs, and not conduct a search, in the mistaken belief that that is sufficiently responsive.
Legibility of the CDs
A final problem, and one not addressed thus far in the case but which pertains to adequacy of the FBI's response, is the fact that many of the items released on CD, as well as in hardcopy, are illegible. It is clear that the person preparing the documents for CD, which are scanned in PDF to retain their integrity as documents, either gained experience from the first disk to the second and third, or someone else took over: there is a noticeable difference in quality from the first to the last disks. This renders many of the documents, especially on the first CD, useless and nonresponsive to FOIA requesters.
Related to this is the presentation of about 600 photographs on disks 2 and 3, which were scanned from photocopies rather than from photographs. In many cases, it is difficult to tell what the photographs depict. They are not usable in their current form. To add insult to injury, visitors to the FBI Reading Room in Washington, D.C. also must look at photocopies, rather than photographs, in the FBI's possession. The agency will make photocopies - of photocopies? - available, but no longer duplicates photographs. This is a departure from the policy in effect as recently as 2000, when we received 80 photographs (not photocopies!) from the FBI, and scanned them ourselves. They are available on the site's photo archive.
These photographs have a singular significance. For many survivors and family members, the pictures taken in Jonestown or in Peoples Temple are the only images they have of their relatives. Thus the photographs, perhaps more than any other item, serve both a public purpose in depicting life in Jonestown, and a private purpose - of connecting people to their loved ones. They do not deserve to be relegated to the washed-out anonymous results of a photocopier.
The Point of Departure: An Index
Our initial complaint challenged the exemptions claimed for the documents on the CDs and asked for an index to navigate them as well. There is another kind of index in FOI law - a Vaughn index - which helps litigants determine which withheld documents are worth challenging. As a result, in most FOI cases over application of exemptions, a motion for a Vaughn index is among the first filed, and is often granted. In our case, we have not yet received one.
In the 1974 decision in Vaughn v. Rosen, the Circuit Court of Washington, D.C. stated that the burden of proof in justifying exemptions lay upon the agency, and that part of that responsibility entailed creation of an index to the materials, since "the party with the greatest interest in obtaining disclosure is at a loss to argue with desirable legal precision for the revelation of the concealed information." The Vaughn Court then proceeded to outline procedures under which the agency defendant in a FOIA suit is required to file an itemized, indexed inventory and detailed justification statement.
Again, a suit by the Church of Scientology helped to clarify this issue with a decision in the D.C. Circuit Court (1979) which identified the three indispensable elements of the index:
1) the index should be contained in one document, complete in itself.
2) the index must adequately describe each withheld document or deletion from a released document.
3) the index must state the exemption claimed for each deletion or withheld document, and explain why the exemption is relevant. The explanation of the exemption claim and the descriptions need not be so detailed as to reveal what the agency wishes to conceal, but they must be sufficiently specific to permit a reasoned judgment as to whether the material is actually exempted under FOIA.
Other court decisions have reaffirmed Vaughn procedures. The reason is that ordinarily the agency alone possesses knowledge of the precise content of withheld documents. In the case of the FBI's documents, however, this is not necessarily the case. Because hundreds of pages were released prior to the creation of the CDs and exist in other locations, some comparisons and educated guesses can be made. For example, the Bureau of Alcohol, Tobacco, and Firearms - reviewing a document referred to it by the FBI - exempted 26 of 27 pages describing the weapons traced from Jonestown to the U.S. from release. This same document, however, had been previously released in its entirety to us, and to other requesters, and its contents are posted under Primary Sources on our site. State Department documents which lacked national security exemptions that are housed at the California Historical Society and the San Diego State University Special Collections, are now released by the FBI with new exemptions.
Because we have closely monitored information about Jonestown and Peoples Temple for more than 25 years, in many respects we know more about the documents - at least in terms of their significance or lack thereof - than those reviewing them for the first time for whom the names and identities of individuals are completely foreign. As noted above, we have provided information to the FBI, as well as to the State Department, about privacy exemptions which should have been lifted due to the deaths of principals involved. This has not occurred.
In its initial response, the FBI answered our lawsuit in the same way it had our initial appeal of privacy exemptions, by saying that release of certain names would be an unwarranted invasion of personal privacy. This was a blanket claim, however: the agency did not look at individual documents, but merely asserted - without considering the exemptions on thousands and thousands of documents - that each and every exemption was legitimate or warranted.
The (b)(7) privacy exemption covers a multitude of concerns, from revealing law enforcement records or invading personal privacy, to identifying confidential sources or disclosing law enforcement techniques. Again, our knowledge of events makes clear that confidential sources have already been revealed, by authors such as George Klineman and David Conn, or Deborah Layton Blakey and Jeanne and Al Mills, who admit in their books that they met with federal agents to discuss their concerns about Peoples Temple. Many books and articles have revealed information which was unknown in 1978 and which agencies reviewing documents for possible release should take into account.
We are not looking to "out" anyone, and certainly respect the privacy of individuals who were interviewed by the FBI following the assassination of Ryan and the deaths in Jonestown. At the same time, if Dr. Hardat Sukhdeo made public statements after the deaths, why is the name of the doctor from the New Jersey College of Medicine blanked out in the documents? Why are the names of amateur radio licensees - whose names and call numbers are a matter of public record at the FCC - deleted? Why are the names of survivors withheld on some documents, and released on others (or, in the alternative, why is the name of an interview subject blacked out on one page, when on the same page, the subject is identified as Jim Jones' only natural born son)?
A Vaughn index is a crucial and necessary first step to unraveling the mass of exemptions. Such an index will not resolve all problems, however, since just as every exemption must be individually reviewed by an agency, each exemption must be individually challenged by a requester. And for the latest exemptions, 2029 - the year of declassification - is a long way off.
There are a number of steps that could be taken right now to remedy the situation. First, the FBI should resume its search for all documents pertaining to Peoples Temple. This would include files started on individual members, files started on the group under its various names, and files begun in response to reports from confidential informants. The search would have to include files generated by the FBI's offices in San Francisco, Los Angeles, and Indianapolis, as well as in Washington, D.C.
Second, the agency should review all exemptions, keeping in mind the fact that the documents are more than 27 years old and refer to events in the distant past, at least in geopolitical terms. The world is a vastly different place than it was in 1978. Many of the principals involved are dead. The issues of containing communism in the Western Hemisphere, monitoring liberal politics at home, and investigating the assassination of a U.S. official abroad are long past. We live in a very different world post-9/11; the documents should not be reviewed through the lenses of 9/11, or as if they had been generated since then. In just a few years the thirtieth anniversary of Jonestown will occur, the time period in which most classified documents are released. These facts must be recognized when considering the appropriateness of on-going exemptions.
Third, the FBI should inventory and categorize these documents into a usable system, with cross-referencing used as much as possible. While it may be impossible to randomly search various PDF files (we don't know), a more complete and descriptive inventory will help those receiving and using the CDs.
Fourth, at the conclusion/resolution of the lawsuit, a new set of CDs needs to be generated. This new collection should incorporate the materials we received as a result of the suit, including the FBI referrals made to other agencies which are now released. It should integrate other items newly discovered, such as files on individuals. It should include corrected scans of illegible documents; if that is not possible, then the best scan possible should be provided, along with an indication that this is the case. It should also add photographs scanned to photographic quality, as 600 dpi, which can be used by the public in a variety of ways such as documentaries, books, artworks.
We are hopeful that, working with the court and the Department of Justice, these steps can be taken. Over the years we have worked with a number of helpful individuals at Justice and in the FBI's Freedom of Information office. We have been able to obtain the Peoples Temple audiotape collection in order to transcribe and make available those tapes to the public. We have uploaded a limited number of photographs in the FBI's possession. We have written books and articles using documents obtained under the Freedom of Information Act. We have compiled a comprehensive list of those who died by employing State Department documents, censuses created by Peoples Temple and acquired under FOIA. We continue to use, and to share, the government documents we receive in order to more completely tell the story of Peoples Temple and Jonestown.
And we're not the only ones who are doing this. Many individuals - from relatives to artists to scholars - are using the documents as well. That is because in the history of religion in America, and in the imagination of American culture, Jonestown is enormous. The breadth and scope of the articles in this jonestown report, and on our site as a whole, offer testimony to that.
The deeper philosophical, religious and societal questions on Jonestown may never be answered. Hidden among the thousands of undiscovered, unprocessed, withheld and illegible pages are hundreds of possible answers. After 27 years of trying to get these answers, none of us are going to stop now.
(Rebecca Moore's other articles in this issues include Katrina and Jonestown and The Strange Case of Garry Scarff. She may be reached through this website. Thanks go to James Lesar and Don Beck for providing assistance in writing this article.)