F e b r u a r y 1 1 , 1 9 9 3
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 91-1334
BEATRICE MAYNARD,
Plaintiff, Appellee,
v.
CENTRAL INTELLIGENCE AGENCY,
Defendant, Appellant.
No. 92-1615
BEATRICE MAYNARD,
Plaintiff, Appellant,
v.
CENTRAL INTELLIGENCE AGENCY, ET AL.,
Defendants, Appellees.
ERRATA SHEET
The opinion of this Court issued on February 4, 1993, is
amended as follows:
On page 3, line 7, delete "lower court's".
On page 3, after "it." on line 3 of second paragraph, add
footnote 3 as follows: For the record, that order was not issued
by the Judge from whose final orders the appeal is taken."
On page 34, line 17, replace "appropriate" with
"inappropriate".
February 11, 1993 UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 91-1334
BEATRICE MAYNARD,
Plaintiff, Appellee,
v.
CENTRAL INTELLIGENCE AGENCY,
Defendant, Appellant.
No. 92-1615
BEATRICE MAYNARD,
Plaintiff, Appellant,
v.
CENTRAL INTELLIGENCE AGENCY, ET AL.,
Defendants, Appellees.
ERRATA SHEET
The opinion of this Court issued on February 4, 1993, is
amended as follows:
On page 47, last line, replace "Costs to appellees." with
"Costs to appellees in No. 92-1615 and to appellant in No. 91-
1334."
February 5, 1993 UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 91-1334
BEATRICE MAYNARD,
Plaintiff, Appellee,
v.
CENTRAL INTELLIGENCE AGENCY,
Defendant, Appellant.
No. 92-1615
BEATRICE MAYNARD,
Plaintiff, Appellant,
v.
CENTRAL INTELLIGENCE AGENCY, ET AL.,
Defendants, Appellees.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Breyer, Chief Judge,
Campbell, Senior Circuit Judge,
and Torruella, Circuit Judge.
Steven J. Lyman with whom Law Office of Carl D. McCue was on
brief for plaintiff.
John P. Schnitker, Appellate Staff, Civil Division, Department of
Justice, with whom Stuart M. Gerson, Assistant Attorney General,
Richard S. Cohen, United States Attorney, and Leonard Schaitman,
Appellate Staff, Civil Division, Department of Justice, were on briefs
for defendants.
February 4, 1993
CAMPBELL, Senior Circuit Judge. Plaintiff Beatrice
Maynard brought this action in the district court to compel
disclosure under the Freedom of Information Act ("FOIA"), 5
U.S.C. 552, of certain government documents and parts of
documents pertaining to the disappearance of her former
husband, Robert Thompson, during a flight over Cuba in
December of 1961. Maynard had sought information about this
from various agencies, including the Central Intelligence
Agency ("CIA"), the Federal Bureau of Investigation ("FBI"),
the Defense Intelligence Agency ("DIA"), the State
Department, the Immigration and Naturalization Service
("INS"), the United States Customs Service ("Customs
Service"), the Federal Aviation Administration ("FAA"), the
National Personnel Records Center ("NPRC"), and the Navy
Department.1 While certain records and other materials were
provided to her, Maynard felt that she was entitled to more,
and so brought this suit.
After reviewing several documents in camera, the
district court ordered disclosure of two items of information
one name and one paragraph that the government had
expressly redacted from materials it had furnished to
plaintiff. The CIA appeals from the court's direction to
reveal the paragraph, arguing that the paragraph was properly
1. The district court granted the parties' stipulated
dismissal of the FAA, the NPRC, and the Navy in February
1990.
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withheld under FOIA's Exemptions 1 and 3, 5 U.S.C.
552(b)(1), (3).2 In all other respects, the district court
granted summary judgment in favor of the defendant agencies,
denying plaintiff's requests for further information, for
further document searches, and for attorney's fees.
Plaintiff now appeals from these judgments.
Finding that Exemptions 1 and 3 authorize the CIA's
withholding of the redacted paragraph, we reverse the order
requiring the CIA to disclose it3. We affirm the district
court's grant of summary judgment for the defendant agencies.
I.
1. The CIA's Appeal
On January 22, 1987, plaintiff submitted FOIA
requests to the defendant agencies, seeking any information
2. FOIA Exemption 1 provides that the FOIA's disclosure
requirements do not apply to matters that are "(1)(A)
specifically authorized under criteria established by an
Executive order to be kept secret in the interest of national
defense or foreign policy and (B) are in fact properly
classified pursuant to such Executive order." 5 U.S.C.
552(b)(1). The information at issue here was classified
pursuant to Executive Order 12356, 47 Fed. Reg. 14874 (1982).
FOIA Exemption 3 pertains to matters that are exempted
from disclosure by a statute that either "(A) requires that
the matters be withheld from the public in such a manner as
to leave no discretion on the issue, or (B) establishes
particular criteria for withholding or refers to particular
types of matters to be withheld." 5 U.S.C. 552(b)(3). The
exempting statute here is 50 U.S.C. 403(d)(3), which
provides that "the Director of Central Intelligence shall be
responsible for protecting intelligence sources and methods
from unauthorized disclosure."
3. For the record, that order was not issued by the Judge
from whose final orders the appeal is taken.
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they might have concerning her former husband, Robert
Thompson. She said he disappeared along with Robert Swanner
on a flight over Cuba, in December of 1961. Thompson
apparently was involved in the distribution of anti-Castro
leaflets; plaintiff believed him to have worked for the CIA.
Among documents produced by the FBI in response to
plaintiff's requests was a redacted memo dated December 22,
1961. The FBI informed plaintiff that the excised
information had originated with the CIA and was being
withheld under FOIA Exemptions 1 and 3 at the CIA's request.
Plaintiff brought this action in the district court in
February 1988, seeking more complete disclosure, including
disclosure of the withheld paragraph.
After the agency defendants moved for summary
judgment, the district court in March of 1990 ordered the
government to submit for the court's in camera inspection all
withheld and redacted documents in their complete form. The
government did so on May 1, 1990. Among the documents
submitted were thirty-two pages the FBI had located in its
search for documents responsive to plaintiff's FOIA
request.4 This material included the redacted memo of
4. The State Department also submitted for in camera review
a document on which the State Department had redacted certain
identifying information, such as the names of individuals,
for personal privacy concerns pursuant to FOIA Exemption 6.
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December 22, 1961 that has since become the subject of the
CIA's appeal.
To help explain its position, the CIA submitted to
the district court the public declaration of Katherine M.
Stricker, an Information Review Officer for the CIA's
Directorate of Operations. With respect to Exemption 1,
which exempts national security information classified
pursuant to an Executive Order, Stricker explained that she
had personally reviewed the classification determinations
under the standards of Executive Order 12356. Based on that
review, Stricker determined that the withheld information
would "reveal the identity of an intelligence source or
disclose an intelligence method," the unauthorized disclosure
of which, "either by itself or in the context of other
information, reasonably could be expected to cause damage to
the national security." See Executive Order 12356,
1.3(a)(4), (c), 47 Fed. Reg. 14874, 14876. Accordingly, she
said, the information was properly classified at the "SECRET
level" and was exempt from disclosure under FOIA Exemption 1.
With respect to Exemption 3, which protects
information exempted from disclosure by statute, Stricker
explained that, similar to Executive Order 12356, the
National Security Act, 50 U.S.C. 403(d)(3), requires the
Director of the CIA to protect intelligence sources and
methods from unauthorized disclosure. Stricker concluded
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that the redacted information fell within the ambit of the
statute because it identified the use of particular
intelligence methods used during specific time periods.
According to Stricker, the release of such information would
allow hostile intelligence organizations to neutralize the
use of those methods, thereby causing a concomitant loss of
intelligence.
On November 14, 1990, the district court ordered
the government to give to plaintiff information from three of
the documents subject to in camera review. This included the
information at issue here the third full paragraph on page
2 of the December 22, 1961 memo.5 The CIA moved for
reconsideration of the portion of the court's order regarding
the redacted paragraph and submitted an in camera declaration
by Stricker, which explained in further detail the nature of
the information withheld. On February 1, 1991, the district
court granted the CIA's motion for reconsideration, but on
reconsideration, the court affirmed its earlier ruling,
finding that "the movant's assertion that disclosure will
5. The district court's order of November 14, 1990, also
required disclosure of material contained in two other
documents: (1) a single name (E.L. Johnson) contained in an
FBI document dated November 20, 1961; and (2) the third full
paragraph of an FBI memorandum dated July 5, 1962. The FBI
requested the district court to reconsider the portion of the
order regarding the July 5, 1962 memorandum, arguing that the
material was exempt from disclosure under FOIA Exemption 7(D)
as information obtained from a confidential source. The
district court granted the FBI's motion for reconsideration
and vacated that portion of its order on February 1, 1991.
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'reveal its sources and methods' in a matter now
approximately thirty years old is without substance and is,
indeed, the height of bureaucratic disingenuousness." The
CIA appeals from this order.
-9-
A. FOIA Exemption 3
The FOIA gives members of the public access to
documents held in government files. Every federal agency
"upon any request for records which . . . reasonably
describes such records" must make the records "promptly
available to any person." 5 U.S.C. 552(a)(3). Nine
categories of documents are exempted from this broad
disclosure requirement.
Exemption 3 permits a federal agency to
withhold matters that are:
(3) specifically exempted from disclosure
by statute . . . provided that such
statute (A) requires that the matters be
withheld from the public in such a manner
as to leave no discretion on the issue,
or (B) establishes particular criteria
for withholding or refers to particular
types of matters to be withheld.
5 U.S.C. 552(b)(3). Two questions need to be answered in
determining whether Exemption 3 applies in a particular
situation. CIA v. Sims, 471 U.S. 159, 167 (1985). First,
does the statute constitute a "statutory exemption to
disclosure within the meaning of Exemption 3"? Second, is
the requested information "included within" the statute's
"protection"? Id.
The first question has already been answered
affirmatively for present purposes. In Sims, the Supreme
Court held that 50 U.S.C. 403(d)(3), which provides that
"the Director of Central Intelligence shall be responsible
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for protecting intelligence sources and methods from
unauthorized disclosure," is an Exemption 3 statute because
it specifies the types of material to be withheld under
subpart (B) of the Exemption. 471 U.S. at 167-68; accord
Knight v. CIA, 872 F.2d 660, 663 (5th Cir. 1989), cert.
denied, 494 U.S. 1004 (1990); Miller v. Casey, 730 F.2d 773,
777 (D.C. Cir. 1984).
In answering the second question whether the
requested information is included within the statute's
"protection" this court has stated that,
once a court determines that the statute
in question is an Exemption 3 statute,
and that the information requested at
least arguably falls within the statute,
FOIA de novo review normally ends.
Aronson v. IRS, 973 F.2d 962, 965, 967 (1st Cir. 1992).
The Supreme Court has said,
it is the responsibility of the Director
of Central Intelligence, not that of the
judiciary, to weigh the variety of
complex and subtle factors in determining
whether disclosure of information may
lead to an unacceptable risk of
compromising the Agency's intelligence-
gathering process.
Sims, 471 U.S. at 180. In the intelligence area, the Court
has commented that judges "have little or no background in
the delicate business of intelligence gathering" and may be
unable to comprehend the significance of material that
appears to be innocuous, but in fact can reveal a significant
intelligence source or method. Id. at 176. Therefore, in
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determining whether withheld material relates to intelligence
sources or methods, a court must "accord substantial weight
and due consideration to the CIA's affidavits." E.g.,
Fitzgibbon v. CIA, 911 F.2d 755, 762 (D.C. Cir. 1990); see
Sims 471 U.S. at 170 ("Congress intended to give the Director
of Central Intelligence broad power to protect the secrecy
and integrity of the intelligence process").
We have examined the unredacted version of the
December 22, 1961 memorandum. In our opinion, it is at very
least "arguable" that the requested paragraph falls within 50
U.S.C. 403(d)(3) for the reason the CIA gave, to wit, that
it could reveal intelligence methods. See Sims, 471 U.S. at
180-81; Aronson, 973 F.2d at 967. Giving due deference to
the agency's determination, we hold that the paragraph is
exempt from disclosure under FOIA Exemption 3 and 50 U.S.C.
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403(d)(3). The district court erred in ruling otherwise.6
B. FOIA Exemption 1
While our decision under Exemption 3 ends the
matter, we note that FOIA Exemption 1 leads to the same
result. Exemption 1 permits the withholding of matters that
are:
(1)(A) specifically authorized under
criteria established by an Executive
order to be kept secret in the interest
of national defense or foreign policy and
(B) are in fact properly classified
pursuant to such Executive order.
5 U.S.C. 552(b)(1). Executive Order 12356, upon which the
CIA relies, specifically authorizes the withholding of
information concerning "intelligence sources and methods,"
6. We do not agree with the district court that merely
because the information here is thirty years old, it cannot
detrimentally reveal intelligence sources or methods.
Plaintiff conceded at oral argument before this court that if
the withheld information relates to intelligence sources or
methods, the passage of thirty years, by itself, is
insufficient to require an agency to disclose the
information. Courts have generally rejected the contention
that the mere age of intelligence information rules out
Exemption 3. Fitzgibbon, 911 F.2d at 763-64. Reluctance
stems from recognition that it is virtually impossible for an
outsider to ascertain what effect the passage of time may or
may not have had to mitigate the harm from disclosure of
sources and methods. Such is true, certainly, as to events
that have occurred well within the careers of living persons
including governmental leaders (like Cuba's leader) still in
power. The CIA, not the judiciary, is better able to weigh
the risks that disclosure of such information may reveal
intelligence sources and methods so as to endanger national
security. Courts have accordingly upheld pursuant to
Exemption 3 and 50 U.S.C. 403(d)(3) the withholding of
information as old as that sought by plaintiff here. Sims,
471 U.S. at 180 (approximately thirty-year-old information);
Fitzgibbon 911 F.2d at 763-64 (same).
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1.3(a)(4), 47 Fed. Reg. 14874, 14876, and declares that
unauthorized disclosure of "intelligence sources and methods"
is "presumed to cause damage to the national security,"
1.3(c), 47 Fed. Reg. at 14876.
When, as here, Exemptions 1 and 3 are claimed on
the basis of potential disclosure of intelligence sources or
methods, the standard of reviewing an agency's decision to
withhold information is essentially the same.7 Hrones v.
CIA, 685 F.2d 13, 17 (1st Cir. 1982); Military Audit Project
v. Casey, 656 F.2d 724, 736-37 n.39 (D.C. Cir. 1981)
(Exemption 3 and 1 provide overlapping protection in cases
involving intelligence sources and methods); see Sims, 471
U.S. at 190 n.6 (Marshall, J., concurring) (current Executive
Order 12356 moves Exemption 1 closer to Exemption 3 than its
predecessor Executive Order 12065). Courts, therefore,
accord substantial deference to the CIA's determination that
information must be withheld under Exemption 1, and will
uphold the agency's decision so long as the withheld
information "logically falls into the category of the
exemption indicated," and there is no evidence of bad faith
7. Although the standards are substantially identical,
courts, in reviewing Exemption 1 claims, state that their
review is de novo. E.g., Goldberg v. United States Dept. of
State, 818 F.2d 71, 77 (D.C. Cir. 1987), cert. denied, 485
U.S. 904 (1988). In carrying out this de novo review, courts
"accord substantial weight to an agency's affidavit
concerning the details of the classified status of the
disputed record." S. Conf. Rep. No. 1200, 93d Cong., 2d
Sess. 12 (1974), reprinted in 1974 U.S.C.C.A.N. 6290.
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on the part of the agency. E.g., Bell v. United States, 563
F.2d 484, 487 (1st Cir. 1977); King v. United States Dep. of
Justice, 830 F.2d 210, 217 (D.C. Cir. 1987). As already
stated, the information withheld by the CIA in this case
"arguably" or "logically" pertains to intelligence methods.
There is no evidence of bad faith on the part of the
agency.8 The redacted paragraph is, therefore, exempt from
disclosure under FOIA Exemption 1 as well as under Exemption
3.9
8. Plaintiff contends that the district court improperly
denied discovery, which could have revealed agency bad faith.
To support this argument, plaintiff cites Weisberg v. United
States Dept. of Justice, 627 F.2d 365, 370-71 (D.C. Cir.
1980), in which the D.C. Circuit noted that discovery may be
appropriate when the adequacy of an agency's search is in
doubt. As discussed below, the agencies' affidavits
demonstrate that their searches here were adequate. See
Gillin v. IRS, No. 92-1803, slip. op. at 10 (1st Cir.
December 7, 1992) (citing Goland v. CIA, 607 F.2d 339, 355
(D.C. Cir. 1978)) (absent showing of bad faith sufficient to
impugn agency's affidavit demonstrating adequacy of search,
district court has discretion to forego discovery), cert.
denied, 445 U.S. 927 (1980). In any case, plaintiff's claims
that the district court abused its discretion by denying her
discovery are devoid of merit. See infra at 42-43. Thus,
Weisberg is inapposite.
9. As with Exemption 3, the passage of some thirty years
does not, by itself, invalidate the CIA's showing under
Exemption 1. Executive Order 12356 provides, without time
limit, that "[i]nformation shall be classified as long as
required by national security considerations." 1.4(a), 47
Fed. Reg. at 14877. Unlike its predecessor Executive Order
12065, Executive Order 12356 does not create a presumption
favoring disclosure of information once it reaches a certain
age. Courts have recognized that it would be extremely
difficult for the judiciary to set particular time
limitations upon Exemption 1, at least within time parameters
of the duration we are discussing here. Bonner v. United
States Dept. of State, 724 F. Supp. 1028, 1033 n.15 (D.D.C.
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2. Plaintiff's Appeal
Plaintiff alleges numerous errors in the district
court's discovery orders, grants of summary judgment, and
denial of attorney's fees. Plaintiff complains specifically
of the following district court actions: 1) denying
plaintiff's request for Vaughn indices;10 2) ruling that
the defendant agencies had conducted adequate searches; 3)
ruling that the government had properly claimed exemptions
under the FOIA; 4) denying various discovery requests; and 5)
denying attorney's fees to plaintiff. We address each of
these claims of error and find that none has any merit.
A. Vaughn Index
1989), vacated on other grounds, 928 F.2d 1148 (D.C. Cir.
1991). In this case, after review of the paragraph in
question, Information Review Officer Stricker concluded that
the "classification [of this information] should be
maintained" in the interests of national security. We are
not in a position to "second-guess" the CIA's conclusion
regarding the need for continued classification of this
material. Branch v. FBI, 700 F. Supp. 47, 48-49 & n.4
(D.D.C. 1988); see Sims, 471 U.S. at 178 ("[w]hat may seem
trivial to the uninformed, may appear of great moment to one
who has a broad view of the scene and may put the questioned
item of information in its proper context.") (citations and
internal quotations omitted); Bell, 563 F.2d at 486-87
(upholding under Exemption 1 the withholding of approximately
thirty-year-old information). But see Wiener v. FBI, 943
F.2d 972, 981 n.15 (9th Cir. 1991) (asking under Executive
Order 12356 whether it is reasonable to expect disclosure of
a twenty-year-old investigation to reveal the existence of a
current intelligence investigation), cert. denied, 112 S. Ct.
3013 (1992).
10. The name of these indices is derived from the seminal
case, Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert.
denied, 415 U.S. 977 (1974).
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Plaintiff contends that the district court erred in
denying plaintiff's motion to compel each defendant agency to
prepare a Vaughn index. A Vaughn index correlates
information that an agency decides to withhold with the
particular FOIA exemption or exemptions, explaining the
agency's justification for nondisclosure. E.g., Curran v.
Department of Justice, 813 F.2d 473, 475 n.4 (1st Cir. 1987);
Wightman v. Bureau of Alcohol, Tobacco & Firearms, 755 F.2d
979, 981 n.1 (1st Cir. 1985). An adequate Vaughn index
serves three functions:
it forces the government to analyze
carefully any material withheld, it
enables the trial court to fulfill its
duty of ruling on the applicability of
the exemption, and it enables the
adversary system to operate by giving the
requester as much information as
possible, on the basis of which he can
present his case to the trial court.
Keys v. United States Dept. of Justice, 830 F.2d 337, 349
(D.C. Cir. 1987) (quoting Lykins v. United States Dept. of
Justice, 725 F.2d 1455, 1463 (D.C. Cir. 1984)). We find no
merit in plaintiff's claim of improper denial of Vaughn
indices here.11 A Vaughn index was obviously not
11. Although plaintiff frames her claim as one of improper
denial of Vaughn indices, her brief suggests that plaintiff
also contests the adequacy of the Vaughn indices that were,
in fact, provided by certain of the defendant agencies.
Because a district court must have an adequate factual basis
for making determinations as to the applicability of claimed
FOIA exemptions, e.g., Bowers v. United States Dept. of
Justice, 930 F.2d 350, 353 (4th Cir.), cert. denied, 112 S.
Ct. 308 (1991); Ingle v. United States Dept. of Justice, 698
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called for from the INS, the DIA or the Customs Service.
These agencies disclaimed possession of any documents
material to plaintiff's request. A Vaughn index could not
even have been prepared in such circumstances.
As for the CIA, the district court denied
plaintiff's motion for a Vaughn index, without prejudice,
because plaintiff had failed to supply the CIA with data
e.g., the city or county of Thompson's birth and a copy of
his birth certificate that the CIA said was necessary to
complete its search. Although plaintiff subsequently
furnished the CIA with the requested information, the record
nowhere indicates that plaintiff renewed her request for a
Vaughn index from the CIA.
The CIA did file, in connection with its summary
judgment motion, both public and in camera declarations,
asserting that particular information redacted or expressly
withheld was exempt from the FOIA under Exemptions 1 and 3
because it would reveal intelligence sources or methods. One
such declaration was that of Information Review Officer
Stricker. While this lacked specifics, a more detailed
affidavit could have revealed the very intelligence sources
or methods that the CIA wished to keep secret. See, e.g.,
F.2d 259, 263 (6th Cir. 1983), we address both the adequacy
of the agencies' Vaughn indices and the propriety of the
district court's decision with respect to plaintiff's initial
motion for Vaughn indices.
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Doyle v. FBI, 722 F.2d 554, 556 (9th Cir. 1983) ("In certain
FOIA cases -- usually when national security exemptions are
claimed -- the government's public description of a document
and the reasons for exemption may reveal the very information
that the government claims is exempt from disclosure.");
Church of Scientology v. United States Dept. of Army, 611
F.2d 738, 742 (9th Cir. 1979) ("the government need not
specify its objections in such detail as to compromise the
secrecy of the information.").
When, as here, the agency, for good reason, does
not furnish publicly the kind of detail required for a
satisfactory Vaughn index, a district court may review
documents in camera. E.g., NLRB v. Robbins Tire & Rubber
Co., 437 U.S. 214, 224 (1978) ("[t]he in camera review
provision is discretionary by its terms, and is designed to
be invoked when the issue before the District Court could not
be otherwise resolved"); Church of Scientology, 611 F.2d at
742 (if court finds agency affidavits to be "too generalized
to establish eligibility for an exemption, it may, in its
discretion, proceed to examine the disputed documents in
camera for a first-hand determination of their exempt
status"). Discretionary in camera review enables the court
to "determine whether the failure of the affidavit stemmed
from mere inadvertence or from a truly overbroad reading of
the exemption by the agency." Irons v. Bell, 596 F.2d 468,
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471 n.6 (1st Cir. 1979). The government, however, retains at
all times the burden of proving the exempt status of withheld
documents.12 E.g., Church of Scientology, 611 F.2d at 743.
In camera review is particularly appropriate when
the documents withheld are brief and limited in number. See,
e.g., Ingle v. Department of Justice, 698 F.2d 259, 264 (6th
Cir. 1983) ("full in camera reviews are appropriate in cases
involving a very limited number of relatively brief
documents"); Church of Scientology, 611 F.2d at 743 ("small
number of documents requested, and their relative brevity,
12. The 1974 amendments to the FOIA, P.L. 93-502, 88 Stat.
1561, 1562 (1974), expressly state that the government
retains the burden of proving a document's exempt status even
when a district court conducts in camera review:
[The district court] may examine the contents of such
agency records in camera to determine whether such
records or any part thereof shall be withheld under any
of the exemptions set forth in subsection (b) of this
section, and the burden is on the agency to sustain its
action.
5 U.S.C. 552(a)(4)(B). The legislative history of the 1974
amendments to the FOIA further clarifies the district court's
discretion in conducting in camera review and the
government's burden of proof:
While in camera examinations need not be automatic, in
many situations it will plainly be necessary and
appropriate. Before the court orders in camera
inspection, the Government should be given the
opportunity to establish by means of testimony or
detailed affidavits that the documents are clearly
exempt from disclosure. The burden remains on the
Government under this law.
S. Conf. Rep. No. 1200, 93d Cong., 2d Sess. 9 (1974),
reprinted in 1974 U.S.C.C.A.N. 6267, 6287-88.
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made these cases appropriate instances for exercise of the
district court's inspection prerogative."). On the other
hand, "where the documents in issue constitute hundreds or
even thousands of pages, it is unreasonable to expect a trial
judge to do as thorough job of illumination and
characterization as would a party interested in the case."
Vaughn v. Rosen, 484 F.2d 820, 825 (D.C. Cir. 1973), cert.
denied, 415 U.S. 977 (1974).
The district court here conducted an in camera
inspection of the relatively limited number of documents in
which the CIA claimed exemptions. This provided an adequate
factual basis for the district court's decision and obviated
the need for further Vaughn indices from the CIA. See, e.g.,
Irons, 596 F.2d at 471 (in camera inspection of documents
along with in camera testimony can fully establish
applicability of FOIA exemption); King, 830 F.2d at 228
(after holding that Vaughn index was inadequate, D.C. Circuit
suggests that district court on remand can review documents
in camera).
With respect to the State Department, the district
court denied plaintiff's request for a Vaughn index because
plaintiff did not contest the adequacy of the State
Department's claimed exemption. The State Department
reported that it had found four documents responsive to
plaintiff's request. It released three of these in their
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entirety and the fourth with minor excisions to protect
personal privacy interests pursuant to FOIA Exemption 6. The
plaintiff did not challenge the excisions under Exemption 6,
rendering unwarranted a Vaughn index at that time. The State
Department subsequently submitted a declaration, explaining
that it had withheld names and other identifying information,
such as date and place of birth, address and occupation, of
persons other than plaintiff's deceased husband, because
"disclosure could subject these individuals or their families
to possible embarrassment or harassment." This declaration
fully met any requirement under Vaughn that the State
Department provide a reasoned justification for its
withholdings. Furthermore, the State Department submitted
the one redacted document to the district court for in camera
review.
Finally, in respect to the FBI, the district court
granted plaintiff's motion for a Vaughn index. The FBI
thereupon submitted two detailed declarations by David R.
Lieberman, a special agent in the Freedom of Information-
Privacy Acts Section of the FBI. Mr. Lieberman explained
that the FBI had released twenty-five of forty-four pages of
material to plaintiff, and justified, by means of coded
indices,13 the withholding of information in order to
13. In a "coded" format, an agency breaks down its FOIA
exemptions into subcategories, explains the nondisclosure
rationale for each subcategory, and then correlates the
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protect the personal privacy of former FBI agents and third
parties (Exemption 7(C)) and to protect the identities of and
information provided by confidential sources (Exemption
7(D)). Furthermore, as with the CIA and the State
Department, the government submitted all of the FBI's
documents for in camera review. The Lieberman declarations
and coded indices, in conjunction with the district court's
in camera review of the documents, were adequate to meet any
requirements under Vaughn that the government provide a
reasoned justification for its withholdings. See, e.g.,
subcategories to each document or portion withheld. For
example, the Lieberman declaration was accompanied by copies
of the documents in their redacted form. Next to each
redaction was a code designation that corresponds to a FOIA
exemption and a subcategory of information. For instance,
one of the subcategories for information withheld under
Exemption 7(C) was names and initials of FBI agents and
support personnel. A coded symbol (b7C-1) would appear next
to any deletions that fit within this exemption and
subcategory of information. Use of coded indices has been
explicitly approved by several circuit courts as long as each
deletion is correlated "specifically and unambiguously to the
corresponding exemption," and the agency affidavit places
"each document into its historical and investigative
context." See, e.g., Keys v. United States Dept. of Justice,
830 F.2d 337, 349-50 (D.C. Cir. 1987). Use of coded indices
is fully consistent with the Supreme Court's endorsement of
"workable rules," under which general categories of
information may be withheld under certain FOIA exemptions
"without regard to individual circumstances." See United
States Dept. of Justice v. Reporters Committee for Freedom of
the Press, 489 U.S. 749, 779-80 (1989) (upholding use of
categorical rules in Exemption 7(C) context). We therefore
agree with these circuits that "it is the function, not the
form, of the index that is important," and that coded indices
can, in some instances, accomplish the functions of Vaughn
"more efficiently and clearly than would the classical Vaughn
indices." Keys, 830 F.2d at 349.
-23-
Lykins, 725 F.2d at 1464 (when "an agency has released most
of the contents of a document and has otherwise met its FOIA
obligations in good faith, a public statement that the
remaining small portions would reveal a confidential source -
- coupled with in camera review of the excised portions of
the document . . . is sufficient to meet Vaughn's
requirements.").
Plaintiff's claim of improper denial of Vaughn
indices is, therefore, groundless and unsupported.
C. The Adequacy of the Searches
Plaintiff next contends that the defendant agencies
did not conduct adequate searches for responsive documents.
Plaintiff directs most of her brief to this argument.
However, as with plaintiff's arguments regarding the
defendant agencies' Vaughn indices, plaintiff's contentions
with respect to the adequacy of the agencies' searches lack
merit and, in some instances, ignore agency affidavits that
cure deficiencies noted by the district court in earlier
affidavits.
The adequacy of an agency's search for documents
under the FOIA is judged by a standard of reasonableness and
depends upon the facts of each case. E.g., Weisberg v.
United States Dept. of Justice, 745 F.2d 1476, 1485 (D.C.
1984). The crucial issue is not whether relevant documents
might exist, but whether the agency's search was "reasonably
-24-
calculated to discover the requested documents." Safecard
Servs., Inc. v. S.E.C., 926 F.2d 1197, 1201 (D.C. Cir. 1991).
In order to establish the adequacy of its search,
the agency may rely upon affidavits provided they are
relatively detailed and nonconclusory, and are submitted by
responsible agency officials in good faith. E.g., Miller v.
United States Dept. of State, 779 F.2d 1378, 1383 (8th Cir.
1985); Weisberg, 745 F.2d at 1485. A satisfactory agency
affidavit should, at a minimum, describe in reasonable detail
the scope and method by which the search was conducted. See,
e.g., Oglesby, 920 F.2d at 68; Perry v. Block, 684 F.2d 121,
127 (D.C. Cir. 1982). The affidavit should additionally
"describe at least generally the structure of the agency's
file system which makes further search difficult." Church of
Scientology of Cal. v. I.R.S., 792 F.2d 146, 151 (D.C. Cir.
1986) (Scalia, J.).
If an agency fails to establish through reasonably
detailed affidavits that its search was reasonable, the FOIA
requester may avert summary judgment merely by showing that
the agency might have discovered a responsive document had
the agency conducted a reasonable search. E.g., Weisberg v.
United States Dept. of Justice, 705 F.2d 1344, 1351 (D.C.
Cir. 1983). However, if an agency demonstrates that it has
conducted a reasonably thorough search, the FOIA requester
-25-
can rebut the agency's affidavit only by showing that the
agency's search was not made in good faith. Miller, 779 F.2d
at 1383. An agency's affidavit is "accorded a presumption of
good faith, which cannot be rebutted by 'purely speculative
claims about the existence and discoverability of other
documents.'" Safecard Servs., 926 F.2d at 1200 (quoting
Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C.
Cir. 1981)).
Plaintiff complains, first, that the FBI, the
Customs Service, and the State Department failed to search
"alternate spellings" and "files containing the information
of cohorts." Plaintiff also charges that unspecified "clues"
contained in the four documents released to her by the State
Department "might have indicated" other potential
repositories of information that the State Department should
have searched. Plaintiff's FOIA request, however, was
limited to "information pertaining to Robert Thompson."14
Because the scope of a search is limited by a plaintiff's
FOIA request, there is no general requirement that an agency
search secondary references or variant spellings. See Gillin
v. IRS, No. 92-1803, slip op. at 6 (1st Cir. December 7,
1992) (quoting Meeropol v. Meese, 790 F.2d 942, 955 (D.C.
14. Plaintiff sent identical FOIA requests to each defendant
agency stating the following: "I am requesting, through the
FOIA, any information you may have concerning my former
husband, Robert Thompson. He disappeared along with Robert
Swanner on a flight over Cuba in December of 1961."
-26-
Cir. 1986)) ("The adequacy of an agency's search 'is measured
by the reasonableness of the effort in light of the specific
request.'"). Nor is there any requirement that an agency
conduct further searches on the basis of unspecified "clues"
in released documents.
Second, plaintiff complains that the declarations
submitted by the FBI and the CIA were not based on personal
knowledge. However, an agency need not submit an affidavit
from the employee who actually conducted the search.
Instead, an agency may rely on an affidavit of an agency
employee responsible for supervising the search. E.g.,
Safecard Servs., 926 F.2d at 1201; cf. Weisberg v. United
States Dept. of Justice, 627 F.2d 365, 369 (D.C. Cir. 1980)
(court holds that affidavit was inadequate because it was not
based upon personal knowledge of affiant or anyone else),
appeal on remand, 705 F.2d 1344 (D.C. Cir. 1983). Here, the
FBI submitted several declarations of David Lieberman, a
supervisor in the FOIA section of the FBI's records division,
who reviewed the information in his official capacity.
Similarly, the CIA submitted the declarations of John Wright
and Katherine Stricker, the persons responsible for directing
FOIA searches at the CIA and determining the applicability of
FOIA exemptions. These affidavits, although partly second-
hand, are sufficient to satisfy the government's burden of
submitting affidavits of responsible agency officials.
-27-
Plaintiff also makes numerous arguments directed at
just one of the defendant agencies. With respect to the FBI,
plaintiff contends that the FBI improperly limited its search
to "105, 106" references, rather than to all references.
This argument was first raised in an untimely motion for
reconsideration and was denied because it "should have been
raised earlier." This court, therefore, reviews the denial
only for an abuse of discretion. E.g., National Metal
Finishing Co. v. Barclays American/Commercial, Inc., 899 F.2d
119, 125 (1st Cir. 1990). In any case, plaintiff's argument
is contrary to the facts. The FBI submitted a declaration
explaining that the "105, 106" reference was contained on a
1969 FOIA search slip, not plaintiff's 1987 search slip.
Consequently, the agency did not limit its search for
documents responsive to plaintiff's FOIA request to the "105,
106" reference. The district court clearly did not abuse its
discretion in denying plaintiff's motion for reconsideration
on the basis of the scope of the FBI's search.
With respect to the CIA, plaintiff complains that
summary judgment was improper because the CIA's affidavits
were not sufficiently detailed to enable plaintiff to
challenge the adequacy of the CIA's search. Plaintiff
further argues that, in any case, it is clear that the CIA's
search was inadequate because a 1963 memorandum released to
plaintiff contains a reference to other "records," which have
-28-
not been disclosed. According to plaintiff, the potential
existence of other records with no explanation by the CIA for
its failure to produce those other records demonstrates the
inadequacy of the CIA's search for responsive documents.
Plaintiff's argument regarding the sufficiency of
the CIA's affidavits is unpersuasive. The CIA submitted
several public declarations by John H. Wright, its
Information and Privacy Coordinator, explaining that the CIA
conducted two searches first, of officially released
documents15 and, second, of the records of the three
Directorates where it believed responsive records would be
found, including the Directorates of Operations (records of
clandestine foreign intelligence and counter intelligence
activities), Intelligence (records interpreting important
world events), and Administration (records of employees).
Wright's declaration of December 7, 1988 sets forth in a very
general manner the method by which the CIA retrieves
documents.16 The Wright declaration further explains that
15. The search of officially released documents yielded one
responsive document, which was forwarded to plaintiff. This
document, a March 20, 1963 memorandum, states that the CIA
had no connection with plaintiff's husband or the flight in
question.
16. The Wright declaration explains that the CIA's records
systems are diverse, decentralized, and compartmentalized in
order to enhance security of documents by minimizing
accidental disclosure of sensitive information. With respect
to the CIA's method of retrieving documents, the declaration
states the following:
-29-
3. The nature and design of the CIA records
systems are determined by the nature of the Agency's
intelligence activities and responsibilities. Documents
are generally retrievable if they are in a file which
contains a collection of documents on the same subject,
and the subject is indexed in a system that alerts a
searcher to the existence and location of the file, or
if the document is individually indexed in a system that
alerts a searcher to the document. If information is
stored other than on paper, it must be indexed in a
manner which alerts the searcher to its existence and
location. The manner in which the CIA indexes
information for storage and retrieval purposes varies
according to the nature of the intelligence activity
that the records are intended to support. Our ability
to retrieve data from a given records system is
determined by what information has been stored in the
system and how the system is designed for retrieval
purposes.
4. It is crucial to note that the CIA records
storage processing and retrieval systems are designed
and programmed to respond to the particular intelligence
responsibilities and problems of the component using the
system. For example, a component charged with political
analysis of a particular foreign power may organize its
files under various subjects--names of prominent
politicians, party names, geographical concentrations of
power, etc. Another component, with a different
intelligence mission, may set up its files in a totally
different fashion. Accordingly, the structure of
particular records systems are not uniform but, rather,
differ according to the intelligence responsibilities of
the component maintaining the system. Moreover, some
records systems are such an integral part of the
associated intelligence activity that the record system
necessarily bears the same classification as the
intelligence activity. . . .
5. When Privacy Act and FOIA requests are received
in the Information Services Division (ISD), the initial
reception point for all such requests received by the
CIA, a determination is made by experienced personnel in
ISD as to what components of the Agency might reasonably
be expected to possess records which might be responsive
to each request. Copies of the requesting letter are
then forwarded to each such component with instructions
that a search be made for any responsive documents.
This initial step is called "tasking" of the components.
Searches are then routinely made among all indices that
-30-
some of the record systems searched in response to
plaintiff's FOIA request are classified.17 According to
Wright, "a detailed discussion would entail the disclosure of
classified information, including information revealing
intelligence sources and methods." Since public disclosure
of additional details about the CIA's structure and its FOIA
search here was not possible, the CIA submitted an in camera
declaration detailing the searches conducted by the CIA for
responsive documents. After reviewing the public and in
might logically have any information relating to . . .
the substance of request under the FOIA. In this
regard, it is necessary to understand that the search
for records in each individual component is dependent
upon the component's unique indexing system. The
indices are the source of any clues into the existence
and location of responsive records. For example, the
indexing systems for records contained in the
Directorate of Operations (DO) are not the same as those
used in the Office of Security (OS). Therefore, the
search for records in each component must be carried out
by an individual who has knowledge of that component's
indexing system. . . .
The declaration, however, provides no details as to the CIA's
search for documents responsive to plaintiff's FOIA request.
17. The National Security Act, 50 U.S.C. 403g, provides in
relevant part:
In the interests of the security of the foreign
intelligence activities of the United States and in
order further to implement the proviso of section
403(d)(3) of this title that the Director of Central
Intelligence shall be responsible for protecting
intelligence sources and methods from unauthorized
disclosure, the Agency shall be exempted from . . . the
provisions of any other law which requires the
publication or disclosure of the organization,
functions, names, official titles, salaries, or numbers
of personnel employed by the Agency.
-31-
camera declarations of Mr. Wright, we are satisfied that the
CIA's search was "reasonably calculated to discover the
requested documents." See Safecard Servs., 926 F.2d at 1201.
As the CIA has provided relatively detailed
affidavits demonstrating the reasonableness of its search, we
reject plaintiff's argument regarding the 1963 memorandum's
reference to other "records." As the district court noted,
the fact a 1963 document refers to the existence of other
records does not independently generate an issue of material
fact rendering summary judgment improper so long as
reasonably detailed, nonconclusory affidavits demonstrate the
reasonableness of the agency's search performed in 1990.
See, e.g., Miller, 779 F.2d at 1385.
As to the Customs Service, plaintiff contends that
summary judgment on the adequacy of the agency's search was
improper because (1) the Customs Service improperly limited
its search to its automated Treasury Enforcement
Communications System ("TECS"); (2) the declarations
submitted by the Customs
Service are inconsistent; and (3) the Customs Service did not
search possible border crossing records for the period prior
to 1982 because it would involve "significant effort."
Plaintiff's first two arguments are interrelated
and neither has any merit. The Custodian of Records for all
electronic records, Ellen Mulvenna, submitted three separate
-32-
detailed affidavits explaining the structure of the Customs
Service's record systems. Plaintiff suggests that the
Mulvenna declarations are inconsistent because the first
declaration states that the original TECS records date back
to the early 1970's and the second declaration states that
all investigatory records, including records in the 1960's,
are included in the TECS. Contrary to plaintiff's assertion,
these statements appear to be fully consistent. According to
the later Mulvenna affidavits, the TECS system was created in
1970. At that time, all existing records were placed in the
TECS. Therefore, as explained in the third Mulvenna
affidavit, the Customs Service's search was appropriately
limited to the TECS system since "[a]ny information on
Plaintiff's missing husband that might have been contained in
the records of the U.S. Customs Service as of the date that
the TECS system was created in 1970 would have been placed in
the TECS data system."
Plaintiff's challenge to the adequacy of the
Customs Service's search is also unpersuasive. While the
government's declarations acknowledged that a search of
border crossing data would involve "significant effort," they
also made clear that such data only exists for dates after
1976, fifteen years after plaintiff's husband disappeared.
It would seem reasonable, therefore, not to have searched the
-33-
border crossing data, quite apart from any special effort
involved.
Plaintiff's challenges to the State Department's
searches also lack merit. Plaintiff complains that (1) the
State Department did not identify who conducted the search or
specify the background and experience of that person; (2) the
State Department's declaration leaves open the inference that
some sources that are only 'likely' to contain information
were not searched; and (3) the declaration does not include a
"comprehensive listing of 'decentralized record systems.'"
There is, however, no general requirement for an
agency to disclose the identity and background of the actual
persons who process FOIA requests. Plaintiff relies on
Weisberg, 627 F.2d at 371, which reversed a district court's
grant of summary judgment because the agency affidavits did
not "denote which files were searched or by whom, [did] not
reflect any systematic approach to document location, and
[did] not provide information specific enough to enable
[plaintiff] to challenge the procedures utilized." Plaintiff
reads Weisberg too broadly. See Perry, 684 F.2d at 127
(noting that Weisberg "involved rather special facts that
tended to cast considerable doubt on the adequacy [of the
agency's search]" because "the agency's own assertions
supported an inference that specifically identified material,
solicited by the requester, might have remained in the
-34-
agency's possession."). The point of Weisberg and subsequent
cases is that search methods should be ones reasonably
calculated to locate the requested information, assuming it
exists. The State Department's declaration suffices to
demonstrate that its search methods met this standard.18
Plaintiff's second argument is that the State
Department's declaration "leaves open the inference that some
sources that are only 'likely' to contain information were
not searched." See Oglesby, 920 F.2d at 68 ("agency cannot
limit its search to only one record system if there are
others that are likely to turn up the information
requested"). Plaintiff appears to base this inference upon a
letter from the State Department declaring that it searched
the two record systems "most likely to contain the
information" requested. However, a subsequent State
18. The State Department's declaration explains that
responsive records, "if they existed, would likely be
expected to be contained in two records systems, namely: the
Central Records; and the Office of Overseas Citizens Services
[OCS]." While name searches of two of the three categories
of Central Records files (the Automated Document System and
the Lot Files) turned up no records, a name search of the
"personality cross-reference" to the Central Foreign Policy
Files (a third category of Central Records) identified
twenty-three responsive documents which had been sent to the
OCS "for action." The OCS retirement manifests along with a
document-by-document search revealed that nineteen of these
documents "had been destroyed in May, 1979, in accordance
with approved disposition schedules," leaving only "four
documents responsive to this request [that] were not
destroyed." Three of these documents were produced to
plaintiff with no excisions, and the fourth was produced with
minor excisions based on personal privacy grounds pursuant to
FOIA Exemption 6.
-35-
Department declaration by its Information and Privacy
Coordinator, Frank M. Machak, declared that searches were
conducted of all "record systems" that were "likely" to
contain the information requested.
Finally, plaintiff's demand for a "comprehensive
listing of 'decentralized records systems'" is also
unfounded. "There is no requirement that an agency search
every record system." Oglesby, 920 F.2d at 68. Nor is there
any requirement that an agency provide a comprehensive list
of record systems unlikely to contain responsive records.
Rather, an agency need only provide "[a] reasonably detailed
affidavit, setting forth the search terms and the type of
search performed, and averring that all files likely to
contain responsive materials . . . were searched," see, e.g.,
id., as well as a general description of the structure of the
agency's file system demonstrating why further search would
be overly burdensome, see Church of Scientology of Cal., 792
F.2d at 151. Because the State Department's affidavits fully
meet this standard, summary judgment on the adequacy of the
State Department's search was inappropriate.19
19. Plaintiff also suggests, without further argument or
explanation, that the State Department should have searched
the records of the "Cuba Desk" and the "Bureau of Politico-
Military Affairs." Plaintiff's suggestion seems factually
misguided. It appears that the records of the "Cuba Desk"
(the formal name for which is apparently the Office of Cuban
Affairs in the Bureau of Inter-American Affairs) were
searched. The Bureau of Politico-Military Affairs, on the
other hand, is apparently concerned with remote issues such
-36-
With respect to the DIA's search, plaintiff
contends that summary judgement was inappropriate because (1)
a document that was forwarded from the FBI to the DIA in 1963
was not located by the DIA in its 1990 search; and (2) the
DIA's declaration does not adequately explain the data bases
searched or the procedures for information retrieval.
As to plaintiff's first argument, "the fact that a
document once existed does not mean that it now exists; nor
does the fact that an agency created a document necessarily
imply that the agency has retained it." Miller, 779 F.2d at
1385. Thus the failure of the DIA to produce a copy of a
document, identified in a 1963 memo, does not mean that the
DIA's search in 1990 was inadequate, particularly when the
DIA has demonstrated that its 1990 search was reasonably
calculated to uncover responsive documents. Plaintiff's
second contention also lacks merit. The DIA's declaration
adequately explains the two data bases it searched.
According to the DIA's declaration, the Central Reference
Division of the DIA Directorate for Technical Services and
Support "searched its two data bases: the Intelligence
Report Index Summary Archive (IRISA) and the All Source
Document Index Archive (ASDIA)." IRISA "contains
as arms control, nuclear non-proliferation, outer space and
the coordination of military-related activities with foreign
policy. The records of the Bureau of Politico-Military
Affairs, therefore, seem unlikely to contain any responsive
documents.
-37-
bibliographic references to all human intelligence
information reports held or produced by DIA." ASDIA
"contains bibliographic citations to all intelligence
studies, contract reports, open source materials maintained
in the DIA library." These two data bases, therefore,
included all materials maintained by the DIA that were likely
to contain responsive documents. A search of these two data
bases failed to produce any information pertaining to
plaintiff's husband. While the DIA's declaration could have
described the actual search conducted in more detail, any
"arguable inadequacy of the search descriptions" is "no more
than marginal and does not render the grant of summary
judgment appropriate." See Perry, 684 F.2d at 127.
Finally, plaintiff contends that the INS's search
was inadequate because it took seventeen months to locate a
responsive file and because the file was lost in 1985 and not
found and turned over to plaintiff until after her appeal was
taken in 1992. Neither of these arguments is persuasive.
Plaintiff's first contention was raised initially in an
untimely motion for reconsideration. Therefore, we review
the district court's denial of this motion only for abuse of
discretion. See, e.g., National Metal Finishing Co., 899
F.2d at 125. Delay in locating a document "is significant
only to the extent that evidence shows that the delay
resulted from bad faith refusal to cooperate." Miller, 779
-38-
F.2d at 1386; accord Perry, 684 F.2d at 128 (court upholds
adequacy of agency search notwithstanding delay of over one
and one half years); Goland, 607 F.2d at 355 (agency delay,
by itself, is not indicative of lack of good faith). Because
plaintiff presented no evidence to suggest that the
seventeen-month delay resulted from bad faith, the district
court properly denied plaintiff's untimely motion for
reconsideration.
Plaintiff's second argument fares no better.
Essentially, plaintiff argues that the fact that a file was
lost and then found undercuts the DIA's contention that its
search was reasonable. See Goland, 607 F.2d at 369-70. In
Goland, one week after the D.C. Circuit affirmed a district
court's conclusion that the CIA had conducted an adequate
search, see 607 F.2d 339 (D.C. Cir. 1978), the CIA informed
the Justice Department that it had discovered additional
documents responsive to the plaintiff's FOIA request while
the appeal had been pending. Although some of these
documents were subsequently released to the plaintiff, the
plaintiff sought to have the D.C. Circuit reconsider its
opinion as to the adequacy of the CIA's search, arguing that
the discovery of additional documents undercut the finding
that the search had been reasonable. The D.C. Circuit
rejected the argument, stating that "[t]he issue was not
whether any further documents might conceivably exist but
-39-
whether [the agency's] search for responsive documents was
adequate." 607 F.2d at 369-70. Although the court noted
that the discovery of additional documents may be evidence
that a search is not thorough, the court was satisfied that
"the original failure to uncover the documents was wholly
understandable and not inconsistent with the district court's
finding that the search was thorough." Id. at 370, 372; see
also Miller, 779 F.2d at 1386 (discovery of additional
documents is not conclusive of agency bad faith since belated
discovery may result merely from administrative inefficiency
or reluctant diligence on the part of the agency); Perry, 684
F.2d at 128 (discovery of additional documents indicated
"neither artifice nor subterfuge but rather, at worse (sic),
administrative inefficiency.").
Similarly here, the INS submitted a declaration to
the district court, explaining that the three-page document
responsive to plaintiff's FOIA request was lost in transit
from the Federal Records Center in Atlanta to the INS Central
Office in Washington, D.C. More important, the INS submitted
an additional declaration detailing the extensive steps taken
by the INS to locate the missing file, including computer and
manual shelf-by-shelf searches. In light of the detailed
affidavits demonstrating the adequacy of the INS's initial
search and the subsequent search for the missing file, we are
not persuaded that the district court was incorrect in
-40-
concluding that the searches were reasonable and in good
faith. Instead, the agency's initial inability to find the
missing file appears to be the result of administrative
inefficiency. Nor can we say that the agency's subsequent
discovery and release of the lost file impugns the integrity
of the INS's affidavits. Rather than bad faith, we think the
forthright disclosure by the INS that it had located the
misplaced file suggests good faith on the part of the agency.
See Meeropol, 790 F.2d at 953 ("what is expected of a law-
abiding agency is that it admit and correct error when error
is revealed.").
In sum, we are satisfied, as was the district
court, that each defendant agency presented reasonably
detailed, nonconclusory affidavits demonstrating the
reasonableness of their respective searches. We reject
plaintiff's suggestion that the agencies' affidavits were
insufficient to support summary judgment on the issue of the
adequacy of the agencies' searches.
D. FOIA Exemptions
Plaintiff contends that the district court
improperly upheld the FBI's withholding of information under
FOIA Exemption 6 and asks us to join all other defendants in
this argument. Exemption 6 permits withholding of the
following:
personnel and medical files and similar
files the disclosure of which would
-41-
constitute a clearly unwarranted invasion
of personal privacy.
5 U.S.C. 552(b)(6).
It is not surprising that plaintiff was unable to
find any justification under Exemption 6 for the FBI's
excisions since the FBI did not claim Exemption 6 as the
basis of its withholding. Rather, it claimed Exemption
7(C),20 which permits the withholding 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)(C).
In analyzing Exemption 7(C) claims, courts balance
"privacy" interests against any "public interest" in
disclosure. United States Dept. of Justice v. Reporters
Committee for Freedom of the Press, 489 U.S. 749, 762 (1989).
The FBI asserted three interests warranting privacy
protection: (1) the names and initials of low-level FBI
agents and support personnel; (2) the names and identifying
20. The FBI additionally relied on FOIA Exemption 7(D) to
justify certain withholdings. See 5 U.S.C. 552(b)(7)(D).
Exemption 7(D) provides protection for confidential source
information. See, e.g., Providence Journal Co. v. United
States Dept. of Army, No. 92-1166, slip op. at 20-21 (1st
Cir. December 8, 1992). As plaintiff has failed to present
any argumentation with respect to Exemption 7(D), she has
waived any claims of error regarding this exemption. See,
e.g., Elgabri v. Lekas, 964 F.2d 1255, 1261 (1st Cir. 1992).
-42-
data of third parties interviewed in the course of the FBI's
investigation; and (3) the names and identifying data of
third parties mentioned as subjects of the FBI's
investigation. The FBI's declaration details the potential
for harassment, reprisal or embarrassment if this information
is disclosed. FBI agents, support personnel, confidential
sources, and investigatory targets all have significant
privacy interests in not having their names revealed. New
England Apple Council v. Donovan, 725 F.2d 139, 142 (1st Cir.
1984) (career public servants); Safeguard, 926 F.2d at 1205
(investigatory targets); Fitzgibbon, 911 F.2d at 767
(suspects, witnesses, and investigators all have strong
privacy interest "in not being associated unwarrantedly with
alleged criminal activity.").
The Supreme Court recently held that the only
cognizable "public interest" for purposes of FOIA is "the
citizens' right to be informed about 'what their government
is up to.'" Reporters Committee, 489 U.S. at 773. "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 own conduct." Id.; Federal Labor Relations Auth.
(FLRA) v. United States Dept. of Navy, 941 F.2d 49, 57 (1st
Cir. 1991) ("[w]hatever non-zero privacy interest at stake,
under Reporters Committee, that interest cannot be outweighed
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by a public interest in disclosure -- whatever its weight or
significance -- that falls outside of the FOIA-cognizable
public interest in permitting the people to know what their
government is up to."); cf. Providence Journal Co. v. United
States Dept. of Army, No. 92-1166, slip op. at 35-36 (1st
Cir. December 8, 1992) (public has interest in disclosure of
governmental misconduct by high ranking agency officials).
Plaintiff here has failed to suggest how the
disclosure of the names would reveal what the government is
up to. We need not, therefore, dwell upon the balance
between privacy and public interests: "something . . .
outweighs nothing every time."21 Fitzgibbon, 911 F.2d at
768 (quoting NARFE v. Horner, 879 F.2d 873, 879 (D.C. Cir.
1989), cert. denied sub nom. NARFE v. Newman, 494 U.S. 1078
(1990). Accordingly, plaintiff's claim for disclosure fails
under Exemption 7(C).
Plaintiff's claim for disclosure fits no better
within Exemption 6. The only agency actually to rely on
Exemption 6 for any withholdings is the State Department. In
its declaration, the State Department explained that it had
21. For the same reason, the effect of the passage of time
upon the individual's privacy interests is simply irrelevant
when a FOIA requestor is unable to suggest any public
interest in the disclosure of names that would reveal what
the government is up to. Privacy interests, no matter how
minimal, will outweigh a nonexistent public interest. We
therefore reject plaintiff's suggestion that the FBI should
have considered "the mitigation of time" on documents over
twenty-five years old.
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withheld the names and other identifying information (i.e.,
date and place of birth, address and occupation), because
disclosure could subject individuals or their families to
harassment or embarrassment, and the public interest in
disclosure, if any, was minimal. This characterization seems
entirely justified.
As with Exemption 7(C), courts must balance the
relative privacy and public interests to determine whether
information is properly withheld under Exemption 6. Although
"the Government's burden in establishing the requisite
invasion of privacy to support an Exemption 6 claim is
heavier than the standard applicable to Exemption 7(C),"
United States Dept. of State v. Ray, 112 S. Ct. 541, 546
(1991) (citing Reporters Committee, 489 U.S. at 756), the
teachings of Reporters Committee with regard to the public
interest side of the equation apply equally in the Exemption
6 context, see id. at 549; FLRA, 941 F.2d at 56. Therefore,
any inquiry into the public interest in disclosure of
withheld information must focus "on the citizens' right to be
informed 'about what their government is up to.'" Id.
(quoting Reporters Committee, 489 U.S. at 773). Because
plaintiff has failed to point out how the withheld
information would reveal anything significant about the State
Department's "performance of its statutory duties," id.
(quoting Reporters Committee, 489 U.S. at 773), and because
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the State Department has asserted a legitimate privacy
interest in withholding names and other identifying
information, we hold under the teachings of Ray and Reporters
Committee that disclosure would be a "clearly unwarranted
invasion of personal privacy." Accordingly, the information
was properly withheld under the FOIA Exemption 6.22
D. Discovery
Plaintiff contends that the district court
improperly granted protective orders barring certain
interrogatories and a proposed deposition of Dr. Orlando
Bosch-Avila, an individual incarcerated in federal prison in
Miami.23 Neither claim warrants appellate intervention
into the district court's broad discretion in managing
pretrial discovery. Intervention would be warranted "only
upon a clear showing of manifest injustice, that is, where
22. Because plaintiff does not challenge any of the other
bases for withholdings asserted by the government, plaintiff
has waived any claims concerning other FOIA exemptions.
E.g., Playboy Enterprises, Inc. v. Public Serv. Comm'n, 906
F.2d 25, 40-41 (1st Cir.), cert. denied sub nom. Cruz v.
Playboy Enterprises, Inc., 111 S. Ct. 388 (1990).
23. In support of her motion to take the deposition of Dr.
Bosch-Avila, plaintiff submitted the affidavit of Sherry Ann
Sullivan. Ms. Sullivan, a private investigator who is also
the head of "The Forgotten Families of the CIA," had brought
a similar FOIA suit to plaintiff's. In her affidavit,
Sullivan alleged that a confidential informant had personal
knowledge that Dr. Bosch-Avila had worked with both Robert
Thompson and her father, Geoffrey Sullivan, on CIA-sponsored
projects. Ms. Sullivan further alleged that the testimony of
Dr. Bosch-Avila would be "sufficient for the CIA to locate
the information and documents which have been requested by
Plaintiff and which the C.I.A. says it cannot locate."
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the lower court's discovery order was plainly wrong and
resulted in substantial prejudice to the aggrieved party."
Mack v. Great Atlantic & Pacific Tea Co., 871 F.2d 179, 186
(1st Cir. 1989). Examination into the facts relative to the
protective orders does not reveal "manifest injustice."
Plaintiff's barred interrogatories were served
approximately six months after the discovery deadline had
lapsed. Plaintiff did not present any compelling reason for
having ignored the deadline. With respect to the deposition
of Dr. Bosch-Avila, the government moved for a protective
order barring the deposition until plaintiff obtained the
consent of Dr. Bosch-Avila, a federal prisoner, and gave
advance notice to government counsel. The district court
granted the motion "without prejudice to the deposition of
the subject being noticed with at least 10 days notice to
defense counsel." Plaintiff did not seek to depose Dr.
Bosch-Avila at any later date. It thus appears that
plaintiff's failure to obtain the discovery in issue was the
result, in large part, of her own inaction. The district
court did not abuse its discretion in ruling as it did.
E. Attorney's Fees
Plaintiff contends that the district court erred in
not awarding her attorney's fees. A decision as to whether
to award attorney's fees is a matter within the sound
discretion of a trial court and will be reversed only for an
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abuse of that discretion. Aronson v. HUD, 866 F.2d 1, 2, 4
(1st Cir. 1989).
Under the FOIA, a district court may award
attorney's fees and costs to a plaintiff who has
"substantially prevailed." 5 U.S.C. 552(a)(4)(E). In
determining whether a plaintiff has "substantially prevailed"
within the meaning of 5 U.S.C. 552(a)(4)(E), a district
court must conduct a two-step inquiry. First, did plaintiff
"substantially prevail"? Second, if so, is plaintiff
entitled to an award based on a balancing of equitable
factors? Crooker v. United States Parole Comm'n, 776 F.2d
366, 367 (1st Cir. 1985).24
The district court in this case denied plaintiff's
motion for attorney's fees against all of the defendant
agencies, with the exception of the CIA,25 on the basis of
the first inquiry i.e., plaintiff had not substantially
24. These factors include the following: "(1) the benefit
to the public, if any, derived from the case; (2) the
commercial benefit to the complainant; (3) the nature of the
complainant's interest in the records sought; and (4) whether
the government's withholding of the records had a reasonable
basis in law." Aronson, 866 F.2d at 3 (quoting Crooker, 776
F.2d at 367); see also S. Conf. Rep. No. 1200, 93d Cong., 2d
Sess. (1974), reprinted in 1974 U.S.C.C.A.N. 6267, 6285, 6288
(indicating that Congress intended courts to consider these
factors in determining whether to exercise their discretion
to award attorney's fees pursuant to 5 U.S.C.
552(a)(4)(E)).
25. The district court decided to await resolution of the
CIA's appeal before deciding the issue of attorney's fees as
to the CIA.
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prevailed against any of the defendant agencies. This
conclusion was entirely correct. In order to prove that a
plaintiff substantially prevailed, a plaintiff must establish
that the filing of the litigation was "necessary" and "had a
causative effect on the disclosure of the requested
information." Crooker v. United States Dept. of Justice, 632
F.2d 916, 932 (1st Cir. 1980) (citing Vermont Low Income
Advocacy Council, Inc. (VLIAC) v. Usery, 546 F.2d 509, 513
(2d Cir. 1976)). At the time that the district court ruled
on the attorney's fee question, plaintiff's suit had resulted
in the disclosure of no documents from the DIA, the Customs
Service, or the INS. The district court therefore was
clearly justified in denying attorney's fees as to these
defendant agencies. Although the INS subsequently found and
delivered a lost document, there is no showing that the suit
was the cause of the delivery of this document. We see no
reason, therefore, to disturb the district court's finding
that plaintiff did not substantially prevail against the INS.
See Weisberg v. United States Dept. of Justice, 848 F.2d
1265, 1271 (D.C. Cir. 1988); VLIAC, 546 F.2d at 514-15 (FOIA
requester did not substantially prevail despite fact that
agency lost document and did not relocate it until after
litigation was filed).
Nor do we fault the district court's conclusion
that plaintiff did not substantially prevail against either
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the State Department or the FBI. Both agencies produced
documents to plaintiff after suit was filed. The chronology,
by itself however, is not determinative. E.g., Cazalas v.
United States Dept. of Justice, 660 F.2d 612, 619 (5th Cir.
1981) ("the mere fact that the documents requested were not
released until after the suit was instituted, without more,
is not enough to establish that a complainant has
substantially prevailed."); Cox v. United States Dept. of
Justice, 601 F.2d 1, 6 (D.C. Cir. 1979) (accord). With the
exception of a single name which the district court ordered
the FBI to disclose, plaintiff presented no evidence
suggesting that this litigation was necessary to obtain
requested information or that the litigation caused the
agency to produce the information. E.g., Crooker, 632 F.2d
at 922. Moreover, as the district court recognized, the
disclosure of a single name was of minimal importance when
compared with plaintiff's overall FOIA request. E.g., Union
of Concerned Scientists v. United States Nuclear Regulatory
Comm'n, 824 F.2d 1219, 1226 (D.C. Cir. 1987); Chilivis v.
SEC, 673 F.2d 1205, 1213 (11th Cir. 1982). Accordingly,
there was no abuse of discretion in the court's finding that
plaintiff did not substantially prevail against the FBI.
Plaintiff argues that this suit resulted in
progressively greater disclosure from the FBI, thus meeting
the causation requirement in 5 U.S.C. 552(a)(4)(E).
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According to plaintiff, after initiation of the litigation,
she was provided with material that had previously been
redacted. This argument, however, was raised for the first
time in an untimely motion for reconsideration, which the
district court properly denied. The FBI submitted an
affidavit explaining that the release of the great bulk of
the redacted material was the result of inter-agency process,
not this litigation, and the release of the remainder of the
previously redacted material occurred after the agency became
aware that the material had previously been released to
another individual (thereby requiring its release to
plaintiff). The district court was within its discretion in
concluding that plaintiff had not substantially prevailed,
and did not abuse its discretion by refusing to reconsider
this decision.
II.
The district court's order of November 14, 1990
compelling the CIA to disclose the third full paragraph on
page 2 of the December 22, 1961 memorandum is reversed.
The district court's subsequent orders granting
summary judgment to the CIA, the FBI, the State Department,
the Customs Service, the INS, and the DIA, as well as its
decision not to award attorney's fees, are all affirmed.
So ordered. Costs to appellees in No. 92-1615 and
to appellant in No. 91-1334.
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Maynard v. Agency
Combined Opinion