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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 14, 2003 Decided May 20, 2003
No. 98-5340
GREGORY EUGENE AUGUST,
APPELLANT
v.
FEDERAL BUREAU OF INVESTIGATION AND
DEPARTMENT OF JUSTICE,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 97cv00769)
Andrew W. Bagley, appointed by the court, argued the
cause as amicus curiae for appellant. With him on the briefs
was J. Michael Klise.
Gregory E. August filed a pro se brief.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
John S. Koppel, Attorney, U.S. Department of Justice,
argued the cause for appellees. With him on the brief were
Roscoe C. Howard, Jr., U.S. Attorney, Leonard Schaitman,
Attorney, U.S. Department of Justice, and R. Craig Law-
rence, Assistant U.S. Attorney. Kathleen M. Frye and Robin
M. Earnest, Assistant U.S. Attorneys, entered appearances.
Before: EDWARDS, RANDOLPH and TATEL, Circuit Judges.
Opinion for the Court filed by Circuit Judge TATEL.
TATEL, Circuit Judge: Responding to a federal prisoner’s
Freedom of Information Act request for his investigative file,
the Federal Bureau of Investigation withheld the bulk of the
requested materials pursuant to FOIA Exemption 7(A), which
exempts from disclosure any records that could reasonably be
expected to interfere with ongoing law-enforcement proceed-
ings. After the district court granted summary judgment in
favor of the Government and while that ruling was pending
on appeal, however, the law-enforcement proceedings against
the prisoner ended, thus undermining the Government’s reli-
ance on Exemption 7(A). Citing this court’s decision in
Maydak v. Department of Justice, 218 F.3d 760 (D.C. Cir.
2000), which held that the Government generally waives any
FOIA exemption it fails to raise at the initial proceedings
before the district court, the FOIA requester here seeks
wholesale disclosure of his criminal file on the ground that the
Government waived its right to invoke any exemptions other
than 7(A). But because the Government has provided clear
evidence that wholesale disclosure would jeopardize the safe-
ty and privacy of third parties involved in the FBI’s investiga-
tion, and because we believe the Government’s failure to
invoke all applicable exemptions in the original district court
proceedings was the result of a reasonable mistake, rather
than an attempt to gain a tactical advantage over the FOIA
requester, we remand to allow the Government to demon-
strate the applicability of other FOIA exemptions to withhold
third parties’ names and other identifying information.
3
I.
After receiving an eight-year sentence for financial fraud,
Appellant Gregory E. August sent the Federal Bureau of
Investigation a pro se request pursuant to the Freedom of
Information Act, 5 U.S.C. § 552 et seq., seeking all Bureau
records pertaining to him. Although the FBI released some
public-source material after redacting names and telephone
numbers of Bureau personnel, it withheld the bulk of the
information August requested under FOIA Exemption 7(A),
which permits the government to withhold ‘‘records or infor-
mation compiled for law enforcement purposes TTT to the
extent that production of such law enforcement records or
information TTT could reasonably be expected to interfere
with enforcement proceedings.’’ 5 U.S.C. § 552(b)(7)(A).
August brought suit in the United States District Court for
the District of Columbia to compel disclosure of the materials
the FBI withheld. The district court granted summary judg-
ment in favor of the Government. On appeal, this court
remanded, directing the FBI to provide a more specific
explanation of its nondisclosure of materials pursuant to
Exemption 7(A). August v. FBI, No. 98–5340 (D.C. Cir.
March 2, 1999) (unpublished order). By the time the case
returned to the district court on remand, however, August’s
conviction had been affirmed. Because there were no longer
any ongoing law-enforcement proceedings, the Government
abandoned its reliance on Exemption 7(A) and requested a
stay to allow it to process all documents pursuant to other
FOIA exemptions. Finding that it lacked jurisdiction to
grant the relief the Government requested, the district court
denied the stay motion and ordered the record returned to
this court.
At that point, the case was held in abeyance pending a
decision in Maydak, which also presented the question of
whether to permit the Government to raise additional FOIA
exemptions after its initial reliance on Exemption 7(A) was
undermined by the conclusion of law-enforcement proceed-
ings. In our decision in that case, we denied the Government
the opportunity to raise additional FOIA exemptions and
4
ordered wholesale disclosure of the requested materials. 218
F.3d 760. Applying Maydak to August’s pending appeal, this
court vacated the grant of summary judgment on Exemption
7(A) and directed the Government to release the withheld
materials. August v. FBI, No. 98–5340, 2002 WL 335534
(D.C. Cir. Jan. 23, 2002) (per curiam order).
The Government filed a petition for panel rehearing, re-
questing permission to redact material covered by other law-
enforcement exemptions. The Government attached to its
petition the in camera declaration of FBI Special Agent
Randy L. Durney to establish the applicability of FOIA
Exemptions 7(C), 7(D), and 7(F), which allow the Government
to withhold information that ‘‘could reasonably be expected to
constitute an unwarranted invasion of personal privacy,’’ ‘‘to
disclose the identity of a confidential source,’’ or ‘‘to endanger
the life or physical safety of any individual,’’ respectively. 5
U.S.C. § 552(b)(7)(C), (D), (F). In his declaration, Durney
explains that the records August requested include names of
confidential sources, as well as the dates of birth, social
security numbers, and home addresses of persons interviewed
in the course of the investigation and of others who testified
for the Government at trial. Durney states that because
August has a history of violent behavior, release of the
information would pose a risk to these persons’ safety and
privacy. Agreeing to rehear the case, we vacated our earlier
order and appointed an amicus curiae to present arguments
in support of August’s position. August v. FBI, No. 98–5340,
2002 WL 31010076 (D.C. Cir. Aug. 5, 2002) (per curiam
order).
II.
Two powerful, competing interests are at stake in this case.
The first is the interest in judicial finality and economy, which
has ‘‘special force in the FOIA context, because the statutory
goals—efficient, prompt, and full disclosure of information—
can be frustrated by agency actions that operate to delay the
ultimate resolution of the disclosure request.’’ Senate of the
Commonwealth of Puerto Rico v. United States Dep’t of
5
Justice, 823 F.2d 574, 580 (D.C. Cir. 1987) (internal quotation
marks and citations omitted) (emphasis in original). Particu-
larly wary of agency attempts ‘‘to play cat and mouse by
withholding its most powerful cannon until after the District
Court has decided the case and then springing it on surprised
opponents and the judge,’’ id. (internal quotation marks and
citation omitted), we have ‘‘plainly and repeatedly told the
government that, as a general rule, it must assert all exemp-
tions at the same time, in the original district court proceed-
ings,’’ Maydak, 218 F.3d at 764–65.
But although FOIA strongly favors prompt disclosure, its
nine enumerated exemptions are designed to protect those
‘‘legitimate governmental and private interests’’ that might be
‘‘harmed by release of certain types of information.’’ John
Doe Agency v. John Doe Corp., 493 U.S. 146, 152 (1989)
(internal quotation marks omitted). Given the drafters’ rec-
ognition that the harms of disclosure may in some cases
outweigh its benefits, we have avoided adopting a ‘‘rigid
‘press it at the threshold, or lose it for all times’ approach to
TTT agenc[ies’] FOIA exemption claims.’’ Senate of Puerto
Rico, 823 F.2d at 581. Instead, we have repeatedly acknowl-
edged that there are some ‘‘extraordinary’’ circumstances in
which courts of appeals may exercise their authority under 28
U.S.C. § 2106 to require ‘‘such further proceedings to be had
as may be just under the circumstances,’’ in order to allow the
government to raise FOIA exemption claims it failed to raise
the first time around. Maydak, 218 F.3d at 767.
In Jordan v. United States Department of Justice, 591
F.2d 753 (D.C. Cir. 1978), we outlined the considerations
courts should take into account in deciding whether to exer-
cise their section 2106 discretion to allow the Government to
raise belated FOIA exemption claims. As we observed in
that case, ‘‘there are at least three situations in which an
agency might be led to invoke an exemption on appeal for the
first time.’’ Id. at 780. One of those situations is where the
Government deliberately withholds some of its FOIA claims
‘‘to gain a tactical advantage over the requestor,’’ a motive
undoubtedly inconsistent with FOIA’s ‘‘broad remedial pur-
pose’’ and which counsels denying the Government’s request
6
for remand. Id. That said, we also acknowledged that the
exercise of section 2106 discretion might be appropriate
where the agency’s motives for belatedly invoking FOIA
exemptions are less sinister, such as where an agency is
‘‘forced to invoke an exemption for the first time on appeal
because of a substantial change in the factual context of the
case or because of an interim development in applicable legal
doctrine.’’ Id. We also recognized that ‘‘there could be
circumstances where, through pure mistake, the Government
attorneys had not invoked the correct exemption in the
district court.’’ Id. In this latter situation, we stated that
[i]f the value of the material which otherwise would be
subject to disclosure were obviously high, [e].g., confiden-
tial information compromising the nation’s foreign rela-
tions or national security, and it appeared highly likely
was intended to be protected by one of the nine enumer-
ated exemptions, then under 28 U.S.C. § 2106, the appel-
late court would have discretion to ‘‘remand the cause
and require such further proceedings to be had as may
be just under the circumstances.’’
Id.; accord Ryan v. Dep’t of Justice, 617 F.2d 781, 792 (D.C.
Cir. 1980) (recognizing exception to general waiver rule where
‘‘sensitive, personal private information might be revealed’’);
Wash. Post v. Dep’t of Health & Human Servs., 795 F.2d 205,
208 (D.C. Cir. 1986).
Although Maydak affirmed Jordan’s flexible approach to
handling belated invocations of FOIA exemptions, 218 F.3d at
767, it ultimately determined that none of the circumstances
Jordan recognized as counseling remand was present: The
‘‘simple resolution of other litigation’’ is not the type of
‘‘interim development’’ that excuses the Government’s failure
to assert FOIA exemptions other than 7(A), and the Govern-
ment neither argued that that failure resulted from human
error nor offered evidence to substantiate the applicability of
other FOIA exemptions, id. at 768–69. Maydak concluded
that the Government’s failure to make an evidentiary showing
about the ‘‘dire consequences’’ that would ‘‘flow from the
release of the requested documents TTT strongly suggests the
7
sort of tactical maneuvering at a plaintiff’s expense that we
have explicitly rejected.’’ Id. at 769.
This case differs from Maydak in several important re-
spects. First, and most important, the Government seeks
only the opportunity to withhold ‘‘sensitive, personal private
information’’ pertaining to third parties involved in its investi-
gation of August, and it has provided clear evidence that
wholesale disclosure of the requested information would en-
danger such persons. According to the Durney Declaration,
August’s file includes the names and other identifying infor-
mation pertaining to confidential sources and other persons
who provided information in the course of the investigation.
Disclosure of this information, Durney declares, ‘‘could rea-
sonably be expected to endanger the life or safety’’ of such
persons, see 5 U.S.C. § 552(b)(7)(F), and ‘‘could reasonably be
expected to constitute an unwarranted invasion of personal
privacy,’’ see id. § 552(b)(7)(C), since release of such informa-
tion would expose them to the risk of physical harm, harass-
ment, and identity theft. Durney Decl. ¶ ¶ 25–34.
Second, the Government has admitted that it made a
mistake in failing to invoke FOIA Exemptions 7(C), 7(D), and
7(F) in the district court, acknowledging that it ‘‘did not fulfill
its responsibility under FOIA in a timely fashion.’’ Appel-
lees’ Br. at 12–13. The Government’s behavior in this case,
moreover, is far more consistent with simple human error
than with the kind of tactical maneuvering we disapproved in
Maydak. To begin with, at the time this litigation com-
menced, Maydak had not yet been decided, and under then-
governing law, the Government might quite plausibly have
believed that it could rely solely on Exemption 7(A) without
reviewing its voluminous investigative file on August to deter-
mine whether other exemptions might apply. See Senate of
Puerto Rico, 823 F.2d at 581 (holding that the district court
did not abuse its discretion in permitting the Government to
invoke other FOIA exemptions after its initial reliance on
7(A) ‘‘collapse[d],’’ and leaving open the question of whether
the conclusion of law-enforcement proceedings constitutes a
‘‘substantial change in the factual context of the case’’ suffi-
cient to invoke an appellate court’s section 2106 discretion to
remand). Indeed, Maydak was not decided until well after
8
the district court granted summary judgment in favor of the
Government on its Exemption 7(A) claim and this court
issued its order in August’s first appeal. In light of the
substantiation of the important third-party interests at stake,
it seems quite likely that the Government’s failure to invoke
Exemptions 7(C), 7(D), and 7(F) was not an effort to gain a
tactical advantage, as August argues, but rather stemmed
from its ultimately mistaken but reasonable belief that it
would have an opportunity to raise these exemptions if the
law-enforcement proceedings against August ended before his
FOIA case.
Nothing in Maydak requires that we order disclosure
solely to deter the Government from playing ‘‘cat and mouse
games’’ where, as here, not only did the Government’s behav-
ior result from a mistake, but doing so would endanger the
safety and privacy of third parties––who, after all, bear no
responsibility for the Government’s litigation strategy. The
law does not require that third parties pay for the Govern-
ment’s mistakes. Cf. Sherman v. United States Dep’t of the
Army, 244 F.3d 357, 364 (5th Cir. 2001) (holding that the
Government cannot waive FOIA Exemption 6 on behalf of the
individual whose privacy interests the exemption protects);
Computer Prof ’ls for Soc. Responsibility v. United States
Secret Serv., 72 F.3d 897, 903–04 (D.C. Cir. 1996) (holding
that the district court erred in refusing to grant the Secret
Service’s Fed. R. Civ. P. 60(b) motion to rehear arguments
about the applicability of FOIA Exemptions 7(C) and 7(D) in
light of the Secret Service’s belatedly proffered proof of a
promise of confidentiality, noting that the case was ‘‘not the
ordinary one,’’ since ‘‘it involves not only the interests of the
Secret Service, but that of a third party whose identity and
information are expressly protected by FOIA’’); Schanen v.
United States Dep’t of Justice, 798 F.2d 348, 349 (9th Cir.
1986) (reversing the denial of the Government’s Rule 60(b)
motion to allow it to make a belated response to a FOIA
request on the ground that ‘‘[r]elease of the documents would
endanger the lives and well-being of agents and informants’’).
Finally, remand is particularly appropriate in this case
because ‘‘the government has taken affirmative steps to abide
by Maydak, to guard against recurrence of this problem.’’
9
Appellees’ Br. at 24. Reiterating this point at oral argument,
counsel explained that the government has changed its policy
for the review of FOIA requests to ensure that all applicable
exemptions are raised at the outset.
To sum up, because the Government’s failure to raise all
FOIA exemptions at the outset resulted from human error,
because wholesale disclosure would pose a significant risk to
the safety and privacy of third parties, and because the
Government has taken steps to ensure that it does not make
the same mistake again, we see this case as inappropriate for
the rigid ‘‘press it at the threshold, or lose it for all times’’
approach urged by August. We remand to the district court
for in camera consideration of the applicability of FOIA
Exemptions 7(C), 7(D), and 7(F).
So ordered.