FILED
United States Court of Appeals
Tenth Circuit
PU BL ISH
September 7, 2007
Elisabeth A. Shumaker
UNITED STATES COURT O F APPEALS Clerk of Court
TENTH CIRCUIT
JESSE C. TRENTAD UE,
Plaintiff - Appellant,
v.
Nos. 04-4200 & 06-4129
IN TEGRITY COM M ITTEE, a
subdivision of the President’s Council
on Integrity and Efficiency,
Defendant - Appellee. 1
Appeal from the United States District Court
for the District of Utah
(D.C. No. 2:03-CV-339-TS)
Jesse C. Trentadue, Salt Lake City, Utah, Pro Se for Plaintiff - A ppellant.
Peter R. M aier, Appellate Staff Civil Division (Peter D. Keisler, Assistant
Attorney General, Paul M . W arner, United States A ttorney, and Leonard
Schaitman, Appellate Staff Civil Division with him on the briefs), Department of
Justice, W ashington, D.C. for Defendant - Appellee.
Before KELLY, HE N RY, and LUCERO, Circuit Judges.
L UC ER O, Circuit Judge.
1
This suit originally named the President’s Council on Integrity and
Efficiency (“PCIE”) as a defendant in addition to the Integrity Committee (“IC”).
Because PCIE w as dismissed from this suit, we have amended the caption to list
only the IC as defendant–appellee.
Jesse Trentadue appeals a district court’s order rejecting his Freedom of
Information Act (“FOIA”) and constitutional claims to certain documents in the
possession of the IC, and denying his motion for additional findings of fact. W e
conclude that, although some severable portions of the documents at issue may be
withheld under FO IA’s exemptions, most of the material falls outside the
exemptions and must be disclosed. Accordingly, we REVERSE IN PART and
R EM A N D to the district court for further proceedings consistent with this
opinion.
I
In the early morning hours of August 21, 1995, staff at the Federal Transfer
Center in Oklahoma City, Oklahoma found the bloody body of Kenneth M ichael
Trentadue hanging in his cell. W e need not repeat here the grisly details of that
death, which are discussed fully in Estate of Trentadue ex rel. Aguilar v. United
States, 397 F.3d 840, 847-49 (10th Cir. 2005). The Bureau of Prisons (“BOP”)
initially investigated Trentadue’s death, but ceased soon after the Federal Bureau
of Investigation (“FBI”) opened its own criminal inquiry. After the Trentadue
family expressed concern over the FBI’s conduct, the Civil Rights Division of the
U.S. Department of Justice (“DOJ”) began overseeing the investigation.
Following lengthy grand jury proceedings, the DOJ concluded no credible
evidence supported the theory that Trentadue was murdered. The DOJ Office of
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the Inspector General (“OIG”) subsequently reviewed that investigation, finding
that Trentadue had committed suicide, but also disclosing a number of “serious
deficiencies.” Id. at 850. The Oklahoma City Police Department also looked into
Trentadue’s death, and it too concluded he committed suicide.
Nevertheless, the Trentadue family remains convinced that Kenneth was
murdered by either prison staff or other prisoners. After a summary of the sealed
OIG report was released to the public, Jesse Trentadue, Kenneth’s brother, filed
an administrative complaint with the IC, a committee of PCIE, alleging
misconduct by DOJ Inspector General (“IG”) Glen Fine and his staff.
PC IE is an interagency, executive branch body created to “identify, review ,
and discuss areas of weakness and vulnerability in Federal programs and
operations to fraud, waste, and abuse, and [to] develop plans for coordinated,
Governmentwide activities that address these problems and promote economy and
efficiency in Federal programs and operations.” Exec. Order No. 12,805 § 3(a),
57 Fed. Reg. 20,627 (M ay 14, 1992). In conjunction with the Executive Council
on Integrity and Efficiency, the chairperson of PCIE created the IC, which was
later empow ered to “receive, review, and refer for investigation allegations of
wrongdoing against IGs and certain staff members of the OIGs.” Exec. Order No.
12,993 § 1(a), 61 Fed. Reg. 13,043 (M ar. 21, 1996). Upon receiving an
allegation, the IC determines whether there is a “substantial likelihood” of
wrongdoing. Id. § 2(c). If so, it refers the allegation to the appropriate authority
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or investigates the matter itself. Id. The investigative body then submits a report
to the IC, which must decide to either forward the report to the chairperson of
PCIE with a recommendation, or take no further action. Id. § 4(a)-(c). Executive
Order 12,993 concludes by noting that it is “intended only to improve the internal
management of the executive branch and is not intended to create any right or
benefit, substantive or procedural, enforceable at law by a party against the
United States, its agencies, its officers, or any person.” Id. § 7.
Trentadue’s allegations were assigned Case Number 349 by the IC and
referred to the DOJ Public Integrity Section to determine whether a criminal
investigation was appropriate. Although the DOJ decided not to pursue criminal
charges, the IC requested a response to Trentadue’s allegations from Fine. He
complied in September 2002. Trentadue subsequently requested to view any
docum ents submitted by Fine, but the IC did not disclose Fine’s response. On
November 26, 2002, the IC sent Trentadue a letter stating it would take no further
action with respect to his allegations. Trentadue, however, apparently did not
receive that letter and inquired as to the status of the IC’s investigation in
February 2003. The IC then resent the November 26 letter indicating its
investigation was closed.
Upon learning that the IC intended to take no action, Trentadue filed a
FO IA request, seeking: (1) any IC reports or rulings issued in Case Number 349,
(2) copies of all documents submitted by the DOJ or OIG to the IC, (3) copies of
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all documents sent from the IC or PCIE to the DOJ or OIG, and (4) any record
indicating that the IC actually mailed the November 26 letter on November 26. In
response, the IC conducted a review of its records and concluded that Trentadue
was already in possession of two responsive documents: the November 26, 2002
letter, and a redacted version of OIG’s November 1999 report regarding the
investigation of Kenneth’s death. Relying on the FOIA exemptions codified at 5
U.S.C. § 552(b)(5), (6), and (7)(C), however, the IC withheld 94 pages of
responsive documents.
In April 2003, Trentadue filed a complaint in federal district court against
the IC and PCIE. Trentadue subsequently moved to dismiss his claims against
PCIE, and the dispute narrowed to two records: the set of documents submitted
by Fine to the IC, and an IC scheduling notice. Trentadue asserted claims to
these records under FOIA, as well as the First and Fifth A mendments.
Both parties filed cross motions for summary judgment, with the IC arguing
that the documents were properly withheld under FOIA exemptions 5, 6, 7(A),
and 7(C). In support of its motion, the IC submitted a sworn declaration from
Noel Hillman, Chief of DOJ’s Public Integrity Section, who averred that release
of the contested materials “w ould interfere w ith the Public Integrity Section’s
ongoing, related criminal investigation.” After an in camera review of the
records, the district court granted the IC’s m otion for summary judgment with
respect to Fine’s submissions to the IC. The court concluded that the documents
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were properly withheld under § 552(b)(7)(A ), because their disclosure “could
reasonably be expected to interfere with enforcement proceedings.” It also
granted summary judgment to Trentadue on his claim for release of the
scheduling notice. Finally, the court dismissed Trentadue’s constitutional cause
of action for failure to state a claim. Trentadue then filed a motion for additional
findings and amendment of judgment, which the district court denied.
Trentadue appealed the district court’s adverse rulings under docket number
04-4200 in this court. While his appeal was pending, the IC released two
additional documents to Trentadue. The first is a one-page cover letter
accompanying a substitute page submitted by Fine to the IC. The second is an
attachment to Fine’s substantive comments, consisting solely of a district court
order in Estate of K enneth M ichael Trentadue v. United States, No. CIV-97-849-L
(W .D. Okla. M ay 1, 2001). 2
W hile his appeal was pending, Trentadue pursued a separate FOIA case in
federal court. Hillman submitted a similar declaration in that case, claiming that
release of the information sought by Trentadue would compromise an ongoing
investigation. The district court, however, noted a “conflict in the record as to
whether there is in fact an ongoing investigation being conducted by the Public
2
Although the issue is no longer before us in the present appeal, we are
perplexed that the district court, after an in camera review, held that the release of
this public court record “could reasonably be expected to interfere with
enforcement proceedings.”
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Integrity Section.” Trentadue v. Fed. Transfer Ctr., No. 2:03-CV-00946, slip op.
at 2 (D . Utah M ay 23, 2005). It ordered Hillman to appear before the court to
testify, in camera if necessary, as to the status of the investigation. Id. Hillman
then submitted an additional declaration stating that the Public Integrity Section
had closed its investigation. Following this declaration, the IC filed a motion for
partial vacatur and remand w ith this court, noting that with the conclusion of the
Public Integrity Section’s investigation, § 552(b)(7)(A) no longer justified
withholding the documents at issue. W e granted that motion, vacating the district
court’s grant of summary judgment to the IC and remanding to determine whether
one of the other FO IA exemptions asserted by the IC justified withholding. See
Trentadue v. Integrity Comm., No. 04-4200 (10th Cir. Sept. 27, 2005).
On remand, the parties filed supplemental briefs concerning the
applicability of § 552(b)(5), (6), and (7)(C). In support of its arguments, the IC
submitted a declaration from W illiam G ressman, a Senior Associate General
Counsel w ith the U.S. Office of Government Ethics. Gressman stated,
“Protection of IG Fine’s submission specifically and IG responses generally is
necessary to ensure free, open, and candid discussion between the IC and subject
IG .” The district court was persuaded by this declaration and found that
§ 552(b)(5) allowed the IC to withhold each of the disputed documents in their
entirety. It further found that § 552(b)(6) and (7)(C) justified withholding
information identifying law enforcement personnel, including those accused of
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misconduct, as well as information identifying third parties with no connection to
law enforcement.
Trentadue again appealed and was assigned a second docket number, 06-
4129. This court later consolidated his two appeals. See Trentadue v. Integrity
Comm., Nos. 04-4200 & 06-4129 (10th Cir. June 1, 2006).
II
“A popular Government, without popular information, or the means of
acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both.
Knowledge will forever govern ignorance; And a people w ho mean to be their
own Governors, must arm themselves with the power which knowledge gives.”
James M adison, Letter to W .T. Barry (A ug. 4, 1822), reprinted in The Complete
M adison, 337 (Saul K. Padover ed., 1953). Heeding the w isdom of M adison’s
words, Congress passed FOIA in 1966, to provide a public right of access,
enforceable in federal court, to agency records. See 5 U .S.C. § 552. The purpose
of the Act “is to ensure an informed citizenry, vital to the functioning of a
democratic society, needed to check against corruption and to hold the governors
accountable to the governed.” NLRB v. Robbins Tire & Rubber Co., 437 U.S.
214, 242 (1978); see also 110 Cong. Rec. 17,087 (1964) (statement of Sen.
Edward V. Long) (“A government by secrecy benefits no one. It injures the
people it seeks to serve; it damages its own integrity and operation. It breeds
distrust, dampens the fervor of its citizens and mocks their loyalty.”).
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Notwithstanding FOIA’s aspiration of governmental transparency, Congress
recognized that disclosure of certain classes of documents could harm legitimate
government interests. See Casad v. U.S. Dep’t of Health & Human Servs., 301
F.3d 1247, 1250-51 (10th Cir. 2002). Thus Congress created nine specific
exemptions allowing agencies to withhold otherw ise responsive documents. 5
U.S.C. § 552(b). The following four exemptions are relevant to this appeal:
This section does not apply to matters that are –
...
(5) inter-agency or intra-agency memorandums or letters which
would not be available by law to a party other than an agency in
litigation with the agency;
(6) personnel and medical files and similar files the disclosure of
which would constitute a clearly unwarranted invasion of personal
privacy;
(7) records or information compiled for law enforcement purposes,
but only to the extent that the production of such law enforcement
records or information (A) could reasonably be expected to interfere
with enforcement proceedings, . . . [or] (C) could reasonably be
expected to constitute an unwarranted invasion of personal privacy . .
..
Id.
In considering whether information should be disclosed, two guiding
principles apply. First, FOIA is to be broadly construed in favor of disclosure.
Alirez v. NLRB, 676 F.2d 423, 425 (10th Cir. 1982). Second, its exemptions are
to be narrowly circumscribed. Irons & Sears v. Dann, 606 F.2d 1215, 1219 (D.C.
Cir. 1979). FO IA further provides that “[a]ny reasonably, segregable portion of a
record shall be provided to any person requesting such record after deletion of the
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portions which are exempt.” § 552(b). The federal agency resisting disclosure
bears the burden of justifying withholding. Alirez, 676 F.2d at 425.
W hether a FOIA exemption justifies withholding a record is a question of
law that we review de novo. Casad, 301 F.3d at 1251. Because this appeal arises
from a grant of summary judgment in favor of the IC, we review the record and
all reasonable inferences to be drawn therefrom in the light most favorable to
Trentadue. Hale v. U.S. Dep’t of Justice, 226 F.3d 1200, 1203 (10th Cir. 2000).
A
Exemption 5 excuses disclosure of “inter-agency or intra-agency
memorandums or letters which would not be available by law to a party other than
an agency in litigation with the agency.” § 552(b)(5). In other w ords, it protects
documents that would be covered by any privilege that an agency could assert in a
civil proceeding. One such privilege is the deliberative process privilege, which
shields “documents reflecting advisory opinions, recommendations and
deliberations compromising part of a process by which governmental decisions
and policies are formulated.” D ep’t of the Interior v. Klammath W ater Users
Protective Ass’n, 532 U.S. 1, 8 (2001). Recognizing that “officials will not
comm unicate candidly among themselves if each remark is a potential item of
discovery,” the deliberative process privilege is primarily designed to “enhance
the quality of agency decisions by protecting open and frank discussion among
those who make them w ithin the Government.” Id. at 8-9 (quotations and
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citations omitted). It further serves to prevent the premature disclosure of
proposed policies, and avoids “misleading the public by dissemination of
documents suggesting reasons and rationales for a course of action which w ere
not in fact the ultimate reasons for the agency’s action.” Coastal States Gas Corp.
v. Dep’t of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980). However, consistent
with FO IA’s general policy of broad disclosure, Exemption 5 is to be construed
“as narrowly as consistent with efficient Government operation.” S. Rep. No. 89-
813, at 9 (1965).
Courts have struggled to precisely delineate the scope of Exemption 5, but
two requirements are clear: Privileged documents must be both predecisional and
deliberative. See M apother v. Dep’t of Justice, 3 F.3d 1533, 1537 (D.C. Cir.
1993). As to the first criterion, we must distinguish between “predecisional
memoranda prepared in order to assist an agency decisionmaker in arriving at his
decision, which are exempt from disclosure, and postdecisional memoranda
setting forth the reasons for an agency decision already made, which are not.”
Renegotiation Bd. v. Grumman Aircraft Eng’g Corp., 421 U.S. 168, 184 (1975).
The second prong, whether a document is “deliberative,” has proven more
difficult to cabin. See Coastal States G as, 617 F.2d at 867 (“The cases in this
area are of limited help to us, because the deliberative process privilege is so
dependent upon the individual document and the role it plays in the administrative
process.”). In EPA v. M ink, 410 U.S. 73 (1973), the Court distinguished between
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deliberative and factual materials: “Exemption 5 . . . requires different treatment
for material reflecting deliberative or policy-making processes on the one hand,
and purely factual, investigative matters on the other.” Id. at 89. It held that
Exemption 5 does not protect “memoranda consisting only of compiled factual
material or purely factual material contained in deliberative memoranda and
severable from its context.” Id. at 87-88. Consistent with FO IA’s general
severability requirement, see 5 U.S.C. § 552(b), factual materials are generally
not privileged unless they are “inextricably intertwined with policy-making
processes.” Nat’l W ildlife Fed’n v. U.S. Forest Serv., 861 F.2d 1114, 1119 (9th
Cir. 1988). Non-factual materials that express opinions or recommendations, on
the other hand, are clearly protected. See, e.g., NLRB v. Sears, Roebuck & Co.,
421 U.S. 132, 150 (1975) (“The cases . . . focus on documents reflecting advisory
opinions, recommendations and deliberations comprising part of a process by
which governmental decisions and policies are formulated.”) (citation and
quotation omitted); Coastal States Gas, 617 F.2d at 866 (“The exemption thus
covers recommendations, draft documents, proposals, suggestions, and other
subjective documents which reflect the personal opinions of the writer rather than
the policy of the agency.”).
Follow ing the Court’s exhortation to apply a “flexible, commonsense
approach” to factual/deliberative classifications, M ink, 410 U.S. at 91, it has been
noted that “courts must be careful not to become victims of their own semantics,”
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M ead Data Cent., Inc. v. U.S. Dep’t of the Air Force, 566 F.2d 242, 256 (D.C.
Cir. 1977). Reasoning that Exemption 5 “is intended to protect the deliberative
process of government and not just deliberative material,” the M ead Data court
held that “[i]n some circumstances . . . the disclosure of even purely factual
material may so expose the deliberative process within an agency that it must be
deemed exempted.” Id.
Taking that approach even further, the Ninth Circuit has adopted a
“process-oriented” or “functional” test that exempts “[f]actual materials . . . to the
extent that they reveal the mental processes of decisionmakers.” Nat’l W ildlife
Fed’n, 861 F.2d at 1119. Thus, “whenever the unveiling of factual materials
would be tantamount to the ‘publication of the evaluation and analysis of the
multitudinous facts’ conducted by the agency, the deliberative process privilege
applies.” Id. (quoting M ontrose Chem. Corp. of Cal. v. Train, 491 F.2d 63, 68
(D.C. Cir. 1974)). By contrast, the Eleventh Circuit has explicitly rejected that
approach, holding instead that “[t]he fact/opinion distinction continues to be an
efficient and workable standard for separating out what is, and what is not,
deliberative.” Fla. House of Representatives v. U.S. Dep’t of Commerce, 961
F.2d 941, 949 (11th Cir. 1992).
The IC argues that factual material should be protected whenever it would
“expose the deliberative process,” citing W olfe v. Department of Health & Human
Services, 839 F.2d 768, 774 (D.C. Cir. 1988) (en banc). However, information is
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not protected simply because disclosure would reveal some minor or obvious
detail of an agency’s decisionmaking process. W ere that the test, Exemption 5
would sw allow FOIA entirely. It is difficult to imagine a document that would
not divulge some tidbit regarding an agency’s deliberative process. M oreover, the
IC’s overly broad reading is contrary to our duty to construe FOIA’s exemptions
narrowly. See Irons & Sears, 606 F.2d at 1219.
Consistent with our sister circuits, we hold that factual information may be
protected under Exemption 5 under certain narrow circumstances: when
disclosure would “so expose the deliberative process within an agency that it must
be deemed exempted.” M ead D ata, 566 F.2d at 256 (emphasis added); see also
Nat’l W ildlife Fed’n, 861 F.2d at 1119 (applying Exemption 5 to factual materials
when disclosure “would be tantamount to the publication of the [agency’s]
evaluation and analysis”) (quotation omitted). But see Fla. House of
Representatives, 961 F.2d at 949.
Looking to the cases the IC cites in support of its reading only bolsters a
narrower view of Exemption 5. In W olfe, plaintiffs sought a “Regulation Log”
used by the Department of Health and Human Services to internally track the
status of certain regulatory actions. 838 F.2d at 771. Although the information
contained in the log was purely factual, showing the dates of transmittal from one
agency to another, such information had the effect of revealing the
recommendations of each agency:
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[I]f the information requested is made public and shows a transmittal
from the [Food and Drug Administration (“FDA”)] to [the
D epartment of H ealth and Human Services], it is known that the FDA
has proposed to regulate a particular subject, and if no transmittal is
shown, it is known that the FDA has decided not to recommend such
regulation or not to recommend it yet.
Id. In other words, the fact that a transmittal had occurred was “the functional
equivalent of an intra-agency or inter-agency memorandum that states, ‘W e
recommend that a regulation on this [named] subject matter be promulgated.’” Id.
at 774. Because such a recommendation is undeniably protected by Exemption 5,
the court sensibly extended that protection to the nominally factual, but
operatively deliberative, transmittals.
Similarly, in National W ildlife Federation, the plaintiff requested working
drafts of a National Forest Plan and the environmental impact statements
associated with it. 861 F.2d at 1115. The district court noted that plaintiffs could
simply compare the contested draft documents prepared by low er-level Forest
Service personnel to the final documents adopted by the agency in order to
“reconstruct the predecisional judgments of the administrator.” Id. at 1122.
Again, the release of such purely factual material would have had the effect of
disclosing deliberative material.
M ontrose Chemical Corp. follows the same logic. In that case, plaintiff
sought staff memos summarizing the evidence presented at an EPA hearing on the
pesticide DDT. 491 F.2d at 64. The full record of that hearing, spanning some
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9200 pages, was already publicly available. Id. at 70. Accordingly, “[t]he only
new information which disclosure of these summaries would provide M ontrose
concerns the mental processes of the agency.” Id. at 68 (quotation marks
omitted). The court held that the disputed materials were shielded by Exemption
5 because disclosure would reveal “what advice as to importance and
unimportance of facts the Administrator received, and how much of it he
accepted.” Id. at 70. That holding explicitly rested on the public’s ability to
compare the summaries with the record as a whole. See id. at 71 (“W here the
factual material is not already in the public domain, a different result might be
reached.”).
These cases have carved out a limited exception to the general rule that
factual materials are not privileged under Exemption 5. However, that exception
is limited to situations in which disclosure of factual content would reveal
deliberative information by allowing the public to easily infer the latter from the
former. We recognize that one D .C. Circuit case cited by the IC, M apother,
appears to take a more expansive view, and would “shelter factual summaries that
were written to assist the making of a discretionary decision,” at least where “the
selection of the facts thought to be relevant clearly involves the formulation or
exercise of . . . policy-oriented judgment or the process by which policy is
formulated.” 3 F.3d at 1539 (quotations and citation omitted). To the extent that
M apother allows an agency to withhold factual material simply because it reflects
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a choice as to w hich facts to include in a document, we reject that approach. A s
an earlier D.C. Circuit case persuasively noted:
Anyone making a report must of necessity select the facts to be
mentioned in it; but a report does not become a part of the
deliberative process merely because it contains only those facts
which the person making the report thinks material. If this were not
so, every factual report would be protected as a part of the
deliberative process.
Playboy Enters., Inc. v. Dep’t of Justice, 677 F.2d 931, 935 (D.C. Cir. 1982); see
also Nat’l W ildlife Fed’n, 861 F.2d at 1119. M oreover, the M apother approach,
which would result in the protection of much (if not most) factual material, runs
contrary to M ink’s clear approval of the factual/deliberative distinction. 410 U.S.
at 89 (“Exemption 5 . . . requires different treatment for material reflecting
deliberative or policy-making processes on the one hand, and purely factual,
investigative matters on the other.”).
To summarize, we hold that factual materials are not privileged under
Exemption 5 unless: (1) they are inextricably intertwined with deliberative
materials, Nat’l W ildlife Fed’n, 861 F.2d at 1119, or (2) their disclosure would
reveal deliberative material, as contemplated in National W ildlife Federation, 861
F.2d at 1122, W olfe, 838 F.2d at 774, and M ontrose Chemical Corp. 491 F.2d at
at 68. These limited exceptions to the general rule that factual material is not
privileged comport with Congress’ demand that we construe Exemption 5 “as
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narrowly as consistent with efficient Government operation.” S. Rep. No. 89-813,
at 9.
W e turn now to the documents implicated in the present case.
1
Two of the documents at issue are essentially the same record. The first is
a cover letter from Fine to the IC, and the second is a replacement page submitted
by Fine to correct a scrivener’s error in the initial letter. The IC has already
disclosed the first paragraph and the first line of the second paragraph of the
cover letter, but has withheld the remainder based on Exemption 5.
M uch of the withheld portion is Fine’s opinion regarding the proper scope
of IC authority. As such, it clearly falls within the deliberative process privilege
as “reflecting advisory opinions, recommendations and deliberations.” Sears,
Roebuck & Co., 421 U.S. at 150 (citation and quotation omitted).
However, a significant portion of the letter— almost all of page two— does
not reflect Fine’s opinions at all; it merely states historical facts about the O IG’s
investigation into Kenneth’s death. 3 This portion of the letter is not inextricably
intertwined with exempt material— the two or three sentences in which Fine
3
This material includes the identities of various officials and their roles in
drafting the OIG report on the DOJ’s investigation into Kenneth’s death.
However, unlike its arguments regarding Fine’s substantive response, the IC does
not contend that § 552(b)(6) or (7)(C) justify withholding such information.
Accordingly, we do not consider whether withholding would be permissible under
these alternative exemptions.
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expresses an opinion are easily severed and would not shed any light on Fine’s
unrelated factual statements. Nor would disclosing this purely factual
information expose the deliberative process in any meaningful way.
A third class of information included in the letter lists the individuals
involved in preparing the OIG’s response to the IC. It comprises the paragraph
spanning pages one and two. Again, this material is not inextricably intertwined
with deliberative material; the final sentence expresses Fine’s opinion, but the
remainder contains only facts. Also like the prior material, disclosure of these
facts would not expose the deliberative process under any reasonable definition of
that term. Accordingly, this third class of information is not protected by
Exemption 5.
2
The final document remaining in dispute, and by far the largest, is Fine’s
substantive response to the IC. W ith respect to this document, the district court
held:
The Court rejects the contention that the Court should attempt to
segregate materials from within the document that may be considered
“deliberative” from those which are not, such as statements of fact.
The Court believes that if the author of a document knows that parts
of the document may or may not be disclosed to the public depending
on how the author parses his words, that it would undermine the
quality of the author’s response and w ould frustrate the purpose
behind exemption 5. Even if this approach is legally incorrect, the
Court finds that in this case it cannot segregate the “factual” from the
“deliberative” materials . . . because they are inextricably
intertwined.
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The district court’s statement cannot be squared with the clear edict of § 552(b),
which mandates that “[a]ny reasonably, segregable portion of a record shall be
provided to any person requesting such record after deletion of the portions which
are exempt.” The court’s concern that authors may parse their language out of
fear of disclosure is misguided. W hether a portion of a document is deliberative
is an objective question, and it is the duty of courts to answer that question. The
manner in which an author organizes her thoughts may make that duty more or
less difficult, but the solution is not to simply abdicate and allow withholding en
masse. Policy considerations are not a license to rewrite FOIA; rejecting the
factual/deliberative distinction in favor of an approach focused solely on policy
would belie Congressional intent and run afoul of clear Supreme Court precedent.
See M ink, 410 U.S. at 89. The district court thus erred in refusing to conduct a
severability analysis.
The court provided an alternative basis for its ruling, ostensibly finding that
every factual statement in Fine’s response was “inextricably intertwined” with
deliberative material. The IC urges us to review this finding for clear error, citing
W illamette Industries, Inc. v. United States, 689 F.2d 865, 868 (9th Cir. 1982). It
is unclear to us whether we should review the severability issue, a mixed question
of law and fact, for clear error or de novo. See M ullan v. Quickie Aircraft Corp.,
797 F.2d 845, 850 (10th Cir. 1986) (holding a mixed question of law and fact is
present when “the issue is only whether the facts must meet the statutory
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standard. If what must be decided in the mixed question involves primarily a
consideration of legal principles, then the appellate court reviews de novo.”). W e
need not rule on the issue, however, because w e conclude that the district court
erred even under the more deferential clear error standard.
The introduction to Fine’s response, covering the first seven pages of the
document, is almost entirely unprotected. These pages provide general
background information on Kenneth’s death and the subsequent investigations and
lawsuits, generally expanding on the summary provided on page two of Fine’s
cover letter. Like that summary, disclosing this purely factual content would not
reveal any deliberative material by inference.
One section of the introduction is exempt, but it is readily severable from
the remainder. On page four, the report discusses the O IG’s recommended course
of action with respect to several individuals who were accused of misconduct.
This material is clearly deliberative, as it states the opinion of the OIG as
transmitted to the ultimate decisionmakers. It is predecisional, in that it was
“prepared in order to assist an agency decisionmaker in arriving at his decision,”
rather than “setting forth the reasons for an agency decision already made.”
Grumman Aircraft Eng’g Corp., 421 U.S. at 184. The fact that this predecisional
recommendation is reported here, many years after the ultimate decisions were
made, does not alter our conclusion; we look to whether a recommendation was
made prior to a final decision, not to the date of subsequent reports that mention
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it. Discussions of these OIG recommendations are accordingly protected, and
must be severed from the surrounding non-exempt material.
On page eight, the response shifts into a discussion of the OIG’s opinion
regarding the proper scope of IC inquiries. 4 Like similar material in his cover
letter, these inter-agency recommendations fall under the protection of Exemption
5. The full section, which continues to page ten, was properly withheld.
Finally, we come to Fine’s substantive responses to Trentadue’s
allegations. The IC characterizes these pages as “Fine’s own opinions and
positions and those of his staff.” W e disagree with its assessment. Having
review ed the material, it is clear that it, too, is largely factual, though a small
amount of deliberative material is sprinkled throughout. Those portions may be
withheld, but they are readily severable.
As discussed above, see supra Part II.A, factual materials do not become
privileged merely because they represent a summary of a larger body of
information. See Nat’l W ildlife Fed’n, 861 F.2d at 1119; Playboy Enters., Inc.,
677 F.2d at 935. In this document, Fine responds to a set of discrete allegations
made by Trentadue. His factual responses do not shed light on any internal
deliberations. W ithout a final report from the IC, there is no way to discern how
4
This page includes the latter portion of Fine’s “roadmap” section, which
lays out a brief outline of the document’s body.
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Fine’s responses were incorporated into the actual deliberations. 5 Nor do the IC’s
particular phrasing and ordering of most of Trentadue’s allegations reveal
deliberative information. Had the IC selected certain allegations for response and
dismissed others, this might not be the case. See M apother, 3 F.3d at 1539-40
(distinguishing, even under a broader reading of Exemption 5, between summaries
“assembled through an exercise of judgment” and a “comprehensive collection of
the essential facts” in which “no known datum in the selected categories has been
omitted”). However, a comparison of Trentadue’s allegations with Fine’s
response reveals that they differ minimally.
There exist, however, two allegations that do not derive from Trentadue’s
complaint. They are found in Sections 15 and 16 of Fine’s response. It is unclear
from the record before us whether Trentadue advanced these claims in some
separate correspondence with the IC, or if they came from the IC itself. Because
Trentadue has failed to include in the record the documents from which the
allegations in Sections 15 and 16 derive, he has not carried his burden to provide
a sufficient appellate record on this point, and we must affirm the district court’s
holding that these Sections are protected. See Scott v. Hern, 216 F.3d 897, 912
(10th Cir. 2000).
5
W e note that Fine was outside of the decisionmaking process; as the
subject of the IC’s investigation he was not privy to its deliberations. See Casad,
301 F.3d at 1252 (noting that “the nature of the decisionmaking authority vested
in the officer or person issuing the disputed document” is helpful in determining
whether Exemption 5 is applicable) (quotation omitted).
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The severable, deliberative portions of Fine’s substantive responses are for
the most part comprised of inter-agency recommendations made during the
various investigations into Kenneth’s death. Like the material on page four, they
are both predecisional and deliberative. Information of this sort appears: at the
close of Section 1, at the close of Section 3, in footnote 7, at the beginning of
Section 8, at the close of Section 8, throughout most of Sections 9 and 10, and in
footnote 20. In addition, the document includes a smattering of recommendations
made by Fine to the IC. These statements, which consist of mere single
sentences, may also be withheld. They are found: in footnote 8, at the close of
Section 6, at the close of Section 14, and throughout the Conclusion. The
remainder of the document is not protected by Exemption 5.
B
Exemption 6 of FOIA excuses disclosure of “personnel and medical files
and similar files the disclosure of which would constitute a clearly unwarranted
invasion of personal privacy.” 5 U.S.C. § 552(b)(6). “Similar files” refers
broadly to “detailed Government records on an individual which can be identified
as applying to that individual.” U.S. Dep’t of State v. W ashington Post Co., 456
U .S. 595, 602 (1982) (quotation omitted); see also Forest Guardians v. FEM A ,
410 F.3d 1214, 1217 (10th Cir. 2005) (holding that “similar files” has a “broad,
rather than a narrow, meaning and encompasses all information that applies to a
particular individual”) (quotation omitted).
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In determining whether the release of such information would “constitute a
clearly unwarranted invasion of personal privacy,” w e must balance “the public
interest in disclosure against the privacy interest Congress intended the exemption
to protect.” Id. at 1217-18 (quotation and alteration omitted). W e must assess the
extent to which disclosure would contribute to the “public understanding of the
operations or activities of the government,” not the interests of the requesting
party. U.S. Dep’t of Def., 510 U.S. at 495 (quotation omitted). “Official
information that sheds light on an agency’s performance of its statutory duties
falls squarely within that statutory purpose”; however, that purpose “is not
fostered by disclosure of information about private citizens that is accumulated in
various governmental files but that reveals little or nothing about an agency’s
ow n conduct.” U.S. Dep’t of Justice v. Reporters Comm. for Freedom of Press,
489 U.S. 749, 773 (1989).
As noted above, the district court held that three types of information were
protected under Exemption 6, those relating to: law enforcement personnel
accused of misconduct, law enforcement personnel not accused of misconduct,
and individuals unrelated to law enforcement but tangentially mentioned in Fine’s
response. On appeal, Trentadue has expressly disclaimed any interest in the latter
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two categories. 6 Thus the only material in dispute is that which identifies law
enforcement personnel accused of misconduct.
The IC argues that individuals accused of misconduct have a significant
privacy interest in their identities, but much of the authority it cites is unhelpful
because it concerns private citizens, rather than government employees. See, e.g.,
Neely v. FBI, 208 F.3d 461, 464-65 (4th Cir. 2000) (criminal suspects); Computer
Profs. for Soc. Responsibility v. U.S. Secret Serv., 72 F.3d 897, 904 (D.C. Cir.
1996) (potential suspects). Obviously, information regarding private citizens w ill
contribute far less to “public understanding of the operations or activities of the
government,” U.S. Dep’t of Def., 510 U.S. at 495-96, than would information
about public employees.
M ost of the other cases cited by the IC deal with Exemption 7(C), which, as
discussed in Part II.C infra, is more protective than Exemption 6. See, e.g.,
M assey v. FBI, 3 F.3d 620, 624 (2d Cir. 1993); Stern v. FBI, 737 F.2d 84, 92-94
(D.C. Cir. 1984). However, this latter category of cases does inform our
judgment as to the various interests in play. In analyzing Exemption 7(C), our
Circuit has previously held that “law enforcement officials have a substantial
privacy interest in concealing their identity.” Hale v. U.S. Dep’t of Justice, 973
F.2d 894, 902 (10th Cir. 1992) (vacated on other grounds).
6
As Trentadue has relinquished his interest in these two categories of
information, the IC may appropriately refrain from disclosing it to him as outside
the scope of his request. W e reach no decision on the merits in this respect.
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As to the public interest in the information at issue here, we agree with the
D.C. Circuit that the relevant interest is “only in knowing who the public servants
are that w ere involved in the governmental wrongdoing.” Stern, 737 F.2d at 92.
Because Exemption 6 protects only identifying information, an agency must still
disclose the fact that somebody was accused of misconduct and what steps, if any,
were subsequently taken. Thus disclosure of information protected by Exemption
6 would shed little light on the conduct of the agency; rather, it would simply
identify the alleged wrongdoer. Undoubtedly, there is a strong public interest in
“monitoring the conduct and actual performance of public officials.” Baez v.
U.S. Dep’t of Justice, 647 F.2d 1328, 1339 (D.C. Cir. 1980). Two factors affect
the weight of that interest: “the level of responsibility held by a federal
employee, as well as the activity for which such an employee has been censured.”
Stern, 737 F.2d at 92. The public interest in learning of a government employee’s
misconduct increases as one moves up an agency’s hierarchical ladder.
Turning to the information withheld in the present case, we conclude that
the identities of the individuals discussed on page four are protected by
Exemption 6. Each of these individuals was a low-level employee who
comm itted serious acts of misconduct. The public interest in learning how law
enforcement agencies dealt with these individuals is very high, and that
information must be released. Disclosing the names of the employees, however,
- 27 -
would shed little light on the operation of government. Identifying information
with respect to these individuals may be properly withheld under Exemption 6. 7
The IC also seeks to withhold significant portions of Fine’s response under
Exemption 6 because those portions answer Trentadue’s allegations with respect
to specific individuals. Their reliance on Exemption 6 is misplaced. In the
complaint Trentadue filed with the IC, a public document included in the record
of this appeal, he accused a number of individuals of w rongdoing. Fine’s
response to these accusations, by necessity, mentions the names of these
individuals. Disclosure of these names, when the allegations made against the
individuals are already part of the public record, would not invade the accused’s
privacy at all, much less constitute a “clearly unwarranted invasion of personal
privacy.” 5 U.S.C. § 552(b)(6). Consistent with our duty to construe FOIA’s
exemptions narrow ly, Irons & Sears, 606 F.2d at 1219, we conclude that these
portions are not protected by Exemption 6. Such information appears in Sections
1-12.
C
7
The IC’s notations regarding this protected information indicate that they
intend to redact large portions of the document. The only personal information
contained in the documents are the names of the individuals. Our holding that the
personal information of these individuals may be protected is thus limited to those
names. It should not be read as an endorsement of the IC’s approach, in which
entire pages would be protected to hide a handful of first and last names. W e
expressly reject their current redactions as vastly overbroad.
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Exemption 7(C) of FOIA closely tracks Exemption 6; it excuses disclosure
of “records or information compiled for law enforcement purposes, but only to the
extent that the production of such law enforcement records or information . . . (C)
could reasonably be expected to constitute an unwarranted invasion of personal
privacy.” 5 U.S.C. § 552(b)(7). The district court held that portions of Fine’s
substantive response that identified individuals accused of misconduct were
protected from disclosure under this exemption.
Exemption 7(C) is similar to, but more protective of privacy than,
Exem ption 6. See R eporters C omm., 489 U.S. at 756. The former allows
withholding of information that “could reasonably be expected to constitute” an
“unwarranted” invasion of privacy, while the latter is limited to disclosures that
“would constitute” an invasion of privacy that is “clearly unwarranted.” See U.S.
Dep’t of Def. v. Fed. Labor Relations Auth., 510 U.S. 487, 496 n.6 (1994).
Additionally, for Exemption 7(C) to apply, we must make a threshold
determination that the records for which the IC seeks protection were “compiled
for law enforcement purposes.” The IC urges us to adopt a per se rule that
documents compiled by law enforcement agencies “are inherently records
compiled for ‘law enforcement purposes’ within the meaning of Exemption 7.”
Curran v. Dep’t of Justice, 813 F.2d 473, 475 (1st Cir. 1987). Because we harbor
significant doubts as to whether the IC is a law enforcement agency, we decline to
espouse such a rule.
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Unlike a quintessential law enforcement agency that possesses an express
mandate to enforce the law, such as the Federal Bureau of Investigation, cf.
Campbell v. U.S. Dep’t of Justice, 164 F.3d 20, 32 (D.C. Cir. 1998), the IC is
“intended only to improve the internal management of the executive branch.”
Exec. Order No. 12,993 § 7, 61 Fed. Reg. 13,043 (M arch 21, 1996) (emphasis
added). Thus, although a portion of the IC’s authority is to “determine if there is
a substantial likelihood that [an] allegation . . . discloses a violation of any law,
rule or regulation,” its principal responsibility is limited to “refer[ring] the
allegation to the agency of the executive branch with appropriate jurisdiction over
the matter.” Id. § 2(c). Only in those rare cases where “a potentially meritorious
administrative allegation cannot be referred to an agency of the executive branch
with appropriate jurisdiction over the matter” can the Chair of the IC “cause a
thorough and timely investigation of the allegation to be conducted.” Id.
W e are not faced with such a rare case. Rather, these records w ere
compiled by Fine and his staff to assist the IC in complying with its duty to
“receive, review, and refer for investigation allegations of w rongdoing against
IGs and certain staff members of the OIGs.” Id. § 1(a). Thus, even if the IC had
discovered criminal activity in reviewing these allegations, it would have had no
authority to enforce any sanction. It would have been limited to merely referring
its results for investigation. And it is therein that our doubts about the status of
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the IC arise. 8 Despite our misgivings, however, we conclude that it is
unnecessary to resolve whether the records at issue were compiled for reasons of
law enforcement. A ssuming, w ithout deciding, that they were so compiled, w e
hold that the relevant public interest outweighs any privacy concerns with respect
to the bulk of this information and that it must therefore be disclosed.
Like Exemption 6, under Exemption 7(C) we balance the public’s interest
in obtaining “[o]fficial information that sheds light on an agency’s performance
of its statutory duties” against an individual’s interest in maintaining privacy.
Reporters C omm., 489 U.S. at 773. Disclosure is in the public interest w hen it is
“likely to contribute significantly to public understanding of the operations or
activities of the government.” Id. at 775. The privacy interest protected
encompasses “the individual’s control of information concerning his or her
8
W e recognize that some of our sister circuits have concluded that records
collected by IGs in the ordinary course of their duties are records compiled for
law enforcement purposes w ithin the meaning of Exemption 7(C). See, e.g., Ortiz
v. U.S. Dep’t of Health & Human Servs., 70 F.3d 729, 732-33 (2d Cir. 1995)
(“An Inspector General of a federal government agency engages in law
enforcem ent activities w ithin the meaning of FOIA.”); Brant Const. Co. v. EPA ,
778 F.2d 1258, 1265 (7th Cir. 1985) (holding that letters sent to EPA OIG were
records compiled for law enforcement purposes); New England Apple Council v.
Donovan, 725 F.2d 139, 143 (1st Cir. 1984) (“The functions of O IG investigators
are not so different from the functions of FBI agents as to warrant divergent
treatment under FO IA exemption 7(C).”). This case is not one, however, in which
Fine was compiling the records to fulfill his duties as IG. The records at issue
here were compiled by the IC for the singular purpose of addressing Trentadue’s
allegations against Fine. M oreover, unlike typical Inspectors General, who have
explicit enforcement and investigatory mandates, see Donovan, 725 F.2d at 143,
the IC is limited to simply reviewing and referring for investigation, where
necessary, the allegations that it receives.
- 31 -
person” and involves “restriction of information to the use of a particular person
or group or class of persons.” Id. at 763-64.
W e have already concluded that any identifying information associated
with the low-level employees mentioned on page four of Fine’s response is
protected by Exemption 6. It follows from that holding that this same information
is also appropriately enveloped in the greater protection provided by Exemption
7(C). As to the remainder of Fine’s response, which addresses law enforcement
officials accused of misconduct who have already been publicly identified in
Trentadue’s original complaint and other public proceedings, we hold that,
despite the greater degree of protection afforded by Exemption 7(C), disclosure of
their names does not constitute an unwarranted invasion of personal privacy
within the meaning of Exemption 7(C). On balance, the important public interest
in understanding how the government responded to these serious allegations
outweighs any privacy interest the law enforcement officials have in the repeated
disclosure of their identities. Indeed, any interest they have in preventing the
further disclosure of their names is minimal, if not entirely nonexistent. W e
emphasize that their identities have already been publicly revealed in connection
with Trentadue’s original allegations; there is no continuing need for the IC to
huddle their names. Again, this information appears in Sections 1-12 of Fine’s
response.
D
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Trentadue requests that we remand this case with instructions to
immediately release the disputed documents. However, we hold that some
portions of these documents may be withheld. Accordingly, we leave the decision
on how to proceed following remand to the discretion of the district court,
consistent with this opinion.
III
Trentadue also asserts a constitutional claim to the documents at issue. H e
argues that the IC’s failure to provide him with the requested documents violates
his due process rights and his right of access to the courts. Because the district
court granted the IC ’s motion to dismiss this claim for failure to state a claim, w e
conduct de novo review. Tri-Crown, Inc. v. Am. Fed. Savs. & Loan Ass’n, 908
F.2d 578, 582 (10th Cir. 1990). W e will affirm only if Trentadue’s complaint,
view ed in the light most favorable to him, lacks “enough facts to state a claim to
relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955,
1974 (2007).
“The Due Process Clause guarantees due process only when a person is to
be deprived of life, liberty, or property.” Chambers v. Colo. Dep’t of Corrs., 205
F.3d 1237, 1242 (10th Cir. 2000). Trentadue has not demonstrated a life, liberty,
or property interest in the materials at issue. He has a liberty interest in his First
Amendment right to petition the government, but that right has not been violated.
He was allowed to petition the IC; the right to petition confers no attendant right
- 33 -
to a response from the government. See Smith v. Ark. State Highway Employees,
441 U.S. 463, 465 (1979).
Trentadue also had no right to participate in the IC process more generally.
W hen agencies conduct “nonadjucative, fact-finding investigations, rights such as
apprisal, confrontation, and cross-examination generally do not obtain.” Hannah
v. Larche, 363 U.S. 420, 446 (1960). Due Process rights are “not implicated
under such circumstances because an administrative investigation adjudicates no
legal rights.” SEC v. Jerry T. O’Brien, Inc., 467 U.S. 735, 742 (1984). The IC is
tasked with investigating Inspectors G eneral to ensure the executive branch is
operating with integrity. Trentadue’s life, liberty, and property could not be
jeopardized by such investigation.
IV
Finally, Trentadue raises two meritless claims. He first contends that the
court’s reliance on Exemption 7(A) in his original proceeding is not moot and
should be considered by this court. He is incorrect. The portion of the original
district court order ruling that exemption 7(A) applied to the contested documents
was vacated. See Trentadue v. Integrity Comm., No. 04-4200 (10th Cir. Sept. 27,
2005). There is no longer an order discussing exemption 7(A) from which he
could now appeal.
Trentadue also argues that the district court erred in denying his motion for
additional findings of fact. W e review a district court’s decision not to amend a
- 34 -
judgment for abuse of discretion. Price v. Philpot, 420 F.3d 1158, 1167 n.9 (10th
Cir. 2005). Trentadue filed a motion requesting the district court supplement its
judgment with additional findings of fact under Fed. R. Civ. P. 52(b). That rule,
however, applies only to cases in which a district court issues factual findings
following a trial on the merits. See Fed. R. Civ. P. 52(a). This case was
terminated on summary judgment. Trentadue offers no legal support for his
position; accordingly, we conclude that the district court did not abuse its
discretion. See Gross v. Burggraf Constr. Co., 53 F.3d 1531, 1547 (10th Cir.
1995).
V
The decision of the district court is REVERSED IN PART. W e
R EM A N D for further proceedings consistent with this opinion.
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