Church of Scientology International v. United States Department of Justice

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 94-1112

CHURCH OF SCIENTOLOGY INTERNATIONAL,

Plaintiff, Appellant,

v.

UNITED STATES DEPARTMENT OF JUSTICE,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. A. David Mazzone, Senior U.S. District Judge]

Before

Selya, Circuit Judge,

Coffin and Bownes, Senior Circuit Judges.

Kendrick L. Moxon for appellant.

George B. Henderson, II, Assistant United States Attorney, with

whom Donald K. Stern, United States Attorney, was on brief for

appellee.

July 26, 1994

COFFIN, Senior Circuit Judge. The plaintiff Church of

Scientology International brought this action under the Freedom

of Information Act (FOIA), 5 U.S.C. 552, to compel disclosure

of documents held by the Department of Justice pertaining to the

Church and related entities. The Department released about 1,000

pages in full or in part, but withheld more than 700 additional

pages based on various FOIA exemptions. The Church objected to

both the breadth of the Department's internal search for

documents and the number of exemptions asserted. The district

court granted summary judgment for the government. On appeal,

the Church argues that the government has not satisfied its

burden of showing that no further documents are subject to

release, and that the court consequently erred in granting

judgment as a matter of law. We affirm part of the court's

decision, but vacate the remainder and remand for further

proceedings.

I. Background

In September 1988, the Department's Executive Office for

United States Attorneys (EOUSA) received a FOIA request from the

Church seeking all records located in the U.S. Attorney's office

in Boston that concerned the Church, two related Church entities,

or Scientology in general. The Church particularly was

interested in documents about a check fraud scheme involving the

Church as a victim, and a later extortion plot against the Church

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arising from the fraud.1 In April 1990, the EOUSA released 542

pages in full or in part, and informed the Church that additional

responsive material had been withheld pursuant to specified FOIA

exemptions. The government also reported that other documents

had been referred to the agencies from which they had originated

for consideration of release.

The Church administratively appealed, challenging the

adequacy of the search and the validity of the exemptions. In

September 1992, having received no response, the Church filed

this action. The records concerning the Church's request were

then reviewed by a special assistant U.S. attorney, Charlene

Stawicki, who concluded that the lapse of time since the original

search made it difficult to ascertain how it was performed. She

therefore arranged a new search, the nature of which is detailed

fully in the district court's opinion. It suffices to say here

that the search involved the use of a comprehensive computerized

record-tracking system.

The new search led to the release of an additional 459 pages

in full and 14 pages in part. Two further reviews of the

documents, one following the Supreme Court's clarification of

FOIA law in United States Dep't of Justice v. Landano, 113 S. Ct.

2014 (1993), and another based on a new policy statement from

1 The Church asserts two primary purposes for its document
request. First, it believes that false reports about the Church
have precipitated FBI harassment of Church members and
investigators, and Church officials therefore want to acquire any
such reports so that the information may be corrected. Second,
the Church wants to learn why the government did not prosecute
more than one individual in the check fraud scheme.

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President Clinton and Attorney General Reno,2 resulted in the

release of approximately 75 more pages in full and 15 in part.

This succession of disclosures left about 744 pages withheld

in full and approximately two dozen withheld in part. The bases

for these withholdings were set forth in declarations by two

Department attorneys,3 and in a Vaughn index.4 The index, a

now standard tool conceived by the District of Columbia circuit

to facilitate resolution of FOIA disputes, provides a brief

description of each of the 191 withheld documents and identifies

the exemptions assertedly permitting their nondisclosure.

In ruling on the government's motion for summary judgment,

the district court found that these materials adequately

justified both the scope of the search and the withholdings. Its

decision can be broken down into four separate conclusions: (1)

the search itself was done reasonably, and the documents produced

fulfilled the government's obligation under FOIA; (2) the Vaughn

index generally was sufficiently detailed to permit the court to

2 The new policy emphasized a commitment to openness, and
urged agencies to withhold documents that technically might fall
within an exemption only when "the agency reasonably foresees
that disclosure would be harmful to an interest protected by that
exemption."

3 A 12-page declaration was submitted by John F. Boseker
(the "Boseker Declaration"), an attorney advisor with the EOUSA,
whose responsibilities include the review of requests made under
FOIA and the Privacy Act, 5 U.S.C. 552a. Bonnie L. Gay,
attorney in charge of the Executive Office's FOIA/Privacy Act
Unit, provided supplemental information in a six-page
declaration.

4 The name of the index is derived from the seminal case,
Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973).

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review the Department's claims of exemption; (3) the index and

supporting affidavits specifically supported the exemptions

claimed by the Department to justify withholding documents; and

(4) discovery was unwarranted because the government's showing

was adequate, and discovery would be unlikely to result in a

different outcome while placing a substantial burden on the

Department and the court.

The Church now claims that the district court abused its

discretion in refusing discovery and awarding summary judgment

based on the submitted declarations and Vaughn index, asserting

that these items were too vague and conclusory to support the

exemption claims. The Church also challenges the reasonableness

of the search conducted by the Department, claiming that the

search was too narrowly circumscribed.

Our review of the district court's determination that the

government was entitled to summary judgment based on its index

and affidavits is de novo. See Licari v. Ferruzzi, 22 F.3d 344,

346-47 (1st Cir. 1994) (summary judgment standard); Wiener v.

FBI, 943 F.2d 972, 978 (9th Cir. 1991) (FOIA standard). Our

discussion begins with a review of general FOIA standards and

principles.

II. The Freedom of Information Act

The FOIA requires government agencies to "make . . .

promptly available" to any person, upon request, whatever

"records" the agency possesses unless those "records" fall within

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any of nine listed exemptions. 5 U.S.C. 552(a)(3), (b).5 The

statute's basic purpose is "to ensure an informed citizenry,

vital to the functioning of a democratic society," NLRB v.

Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978), or, stated

more specifically, "`to open agency action to the light of public

scrutiny,'" Department of Justice v. Reporters Committee, 489

U.S. 749, 772 (1989) (citation omitted). The policy underlying

FOIA is thus one of broad disclosure, and the government must

supply any information requested by any individual unless it

determines that a specific exemption, narrowly construed,

applies. Aronson v. IRS, 973 F.2d 962, 966 (1st Cir. 1992). The

government bears the burden of demonstrating the applicability of

a claimed exemption, Maynard v. CIA, 986 F.2d 547, 557-58 (1st

Cir. 1993); In Re Department of Justice, 999 F.2d 1302, 1305 (8th

Cir. 1993) (en banc), and the district court must determine de

novo whether the queried agency has met this burden, Aronson, 973

F.2d at 966.

FOIA also provides for partial disclosure of documents that

contain some exempted information, mandating that "all reasonably

segregable, non-exempt portions of any agency records must, after

deletion of the exempt material, be disclosed to a requester, 5

U.S.C. 552(b)," Wightman v. Bureau of Alcohol, Tobacco &

Firearms, 755 F.2d 979, 983 (1st Cir. 1985). In determining

segregability, "courts must construe the exemptions narrowly with

5 The exemptions protect, inter alia, privacy and

confidentiality interests, the secrecy of grand jury proceedings,
and matters covered by the attorney-client privilege.

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the emphasis on disclosure," id.. An agency may withhold non-

exempt information only if it "`is so interspersed with exempt

material that separation by the agency, and policing of this by

the courts would impose an inordinate burden,'" Id. (quoting Lead

Industries Ass'n v. Occupational Safety and Health Admin., 610

F.2d 70, 86 (2d Cir. 1979)). See also Krikorian v. Department of

State, 984 F.2d 461, 466 (D.C. Cir. 1993) ("`non-exempt portions

of a document must be disclosed unless they are inextricably

intertwined with exempt portions'" (citation omitted)).

To assure the broadest possible disclosure, courts often

direct a government agency seeking to withhold documents to

supply the opposing party and the court with a Vaughn index,

which includes a general description of each document sought by

the FOIA requester and explains the agency's justification for

nondisclosure of each individual document or portion of a

document. Maynard, 986 F.2d at 556-57; Vaughn, 484 F.2d at 823-

28. Such an index is viewed as necessary to protect the

adversary process in a FOIA case, in which only the party

opposing disclosure will have access to all the facts. Wiener,

943 F.2d at 977; Vaughn, 484 F.2d at 823-28. We previously have

identified a trio of functions served by the index:

[I]t 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.

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Maynard, 986 F.2d at 557 (quoting 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))). See also In Re Department of Justice, 999 F.2d at 1305.

Although FOIA's primary thrust is to promote openness, the

Supreme Court also has recognized a Congressional intent "to

provide `workable rules' of FOIA disclosure," Landano, 113 S. Ct.

at 2023 (citing cases). To that end, the Court has interpreted

the statute as permitting agencies to exempt certain records on a

categorical basis, rather than requiring a document-by-document

consideration. In Reporters Committee, for example, the Court

concluded that criminal "rap sheet" information is categorically

exempt from disclosure because the release of such information

invariably constitutes an unwarranted invasion of privacy.6 489

U.S. at 780. The Court has reached a similar conclusion with

respect to the exemption of material furnished by sources, see

Landano, 113 S. Ct. at 2022, holding that "when certain

circumstances characteristically support an inference of

confidentiality," the Government may justify nondisclosure

without detailing the circumstances surrounding a particular

interview.7

6 The Court in Reporters Committee was construing FOIA

Exemption 7(C), which allows the Government to withhold law
enforcement records or information whose production "could
reasonably be expected to constitute an unwarranted invasion of
personal privacy," 5 U.S.C. 552(b)(7)(C).

7 Landano concerned Exemption 7(D), which permits the

Government to withhold

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FOIA's general philosophy remains, however, one of "`full

agency disclosure,'" Aronson, 973 F.2d at 966 (quoting Department

of Air Force v. Rose, 425 U.S. 352, 360 (1976) (quoting S. Rep.

No. 813, 89th Cong., 1st Sess. 3 (1965))), and courts have the

obligation to interpret its reach "generously, in order to

achieve the FOIA's basic aim: sunlight," id.. See also Landano,

113 F.2d at 2024.

What usually remains unspoken, but is a reality often

affecting attitudes and conduct implementing FOIA, is the very

considerable burden laid on both the government and the trial

court in searching files for multitudinous documents, analyzing

them, and justifying not only any exclusion relied upon but any

refusal to redact and segregate the disclosable from the

residually privileged. This burden often is exacerbated by the

apparent lack of any perceptible public purpose on the part of

the requester. In such a case, already burdened courts and

agencies may deem FOIA's dedication to the importance of

"sunlight" as unrealistic. We thoroughly appreciate this kind of

tension. We are dealing with a law that complicates the task of

governing. Yet, its goals are worthy, and we are bound to honor

records or information compiled for law enforcement
purposes, but only to the extent that the production of
such law enforcement records or information . . . could
reasonably be expected to disclose the identity of a
confidential source, . . . , and, in the case of a
record or information compiled by criminal law
enforcement authority in the course of a criminal
investigation . . . , information furnished by a
confidential source.

552(b)(7)(D).

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both its letter and its spirit. Moreover, as in any "hard case,"

we must constantly remind ourselves that our decision establishes

principles that must be generally applicable -- both to requests

that seem merely annoying and to those that may reflect the most

vital concerns of citizens. Cf. Senate of Puerto Rico v.

Department of Justice, 823 F.2d 574, 587 (D.C. Cir. 1987) ("The

costs must be borne . . . if the congressional policy embodied in

FOIA is to be well served.")

III. Did the Government Meet Its Burden?

A. Adequacy of the Search

When the Church submitted its request for documents in

September 1988, it triggered a responsibility on the part of the

Department of Justice to do a reasonably thorough search of its

records and to turn over all responsive materials except those

for which it could prove an exemption from disclosure. Maynard,

986 F.2d at 559. The Church has two primary complaints about

what transpired. First, it claims that the search was too

narrow, and, consequently, that more responsive documents should

have been found. Second, it claims that the Department has

failed to meet its burden of proving that all of the withheld

materials are exempt from disclosure. Like the district court,

the parties break this issue into three components: (1) is the

index generally too vague? (2) are the specific claims of

exemption supportable? (3) did the court abuse its discretion in

denying discovery?

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We readily can dispose of the first issue. As we have

noted, the adequacy of an agency's search for documents under

FOIA is judged by a standard of reasonableness. Maynard, 986

F.2d at 559. "The crucial issue is not whether relevant

documents might exist, but whether the agency's search was

`reasonably calculated to discover the requested documents.'"

Id. (citation omitted). The district court properly identified

and applied this standard here, finding that the search was

adequate based on the details provided in the Stawicki affidavit.

Ms. Stawicki stated that she directed the second search for

documents conducted after the Church filed suit, that the search

was conducted through a computerized record system whose

capabilities she described, that a manual search would be

impossible, and that she personally searched the computer files

for specific documents responsive to the Church's request. The

court found that this information, in the absence of any evidence

of bad faith, was sufficient. We agree, and thus affirm its

conclusion.8

The Church's second complaint is more compelling. Although

implicitly contending that the government has withheld an

excessive number of documents, the Church at this juncture really

is making a more limited argument. It maintains that the

affidavits and Vaughn index were too vague and conclusory to

8 The Church made two specific arguments regarding the
inadequacy of the Department's search, neither of which were
raised before the district court. We therefore need not, and do
not, address them here. See Watkins v. Ponte, 987 F.2d 27, 29

(1st Cir. 1993).

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permit it or the district court meaningfully to evaluate the

Department's exemption claims, and the Church therefore asserts

that it was entitled to more information, either through

discovery or a revised index, before the summary judgment motion

properly could be decided.

B. General Inadequacies of the Index and Affidavits

We have studied carefully the affidavits and index,

considering separately each of the 191 entries, and are persuaded

that, with respect to many documents, the government has failed

to support adequately its claim of exemption.9 Each entry

contains four types of information: (1) the number of pages in

the document; (2) a brief description of the nature of the

document; (3) the content of the withheld portions; and (4) the

statutory exemption numbers claimed to support nondisclosure.

Document No. 4, for example, is entered in the index as follows:

[Pages] [Description] [Content/withheld portions]

[Exemptions]

21 Typed AUSA notes Attorney work product b(5)
(undated) document marshalling facts b(7)(D)
and sources of information b(7)(C)
created in contemplation of
litigation. Confidentiality
referenced throughout
document. References Third
Party Individuals throughout.
(WIF [withheld in full])

9 Some of these documents have been released in whole or in
part as a result of the administration's openness policy. See

supra note 2. The government identifies these documents as Nos.

58, 63-66, 69, 71-73, 77-81, 84-86 and 88-90.

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In our view, the descriptions for many of the documents are

too cursory to permit debate, or an informed judgment, about

whether they properly may be withheld. As with Document No. 4,

multiple exemption numbers are noted beside many entries, without

any correlation between a particular exemption and the sections

of the document to which it relates. Most documents, including

lengthy ones like No. 4, are withheld in their entirety, without

any reference to segregability.

The declarations submitted with the index contain only

general and conclusory assertions concerning the documents. For

example, with respect to documents claimed to be exempt under the

privacy provision, Exemption 7(C), see supra note 6, the Boseker

declaration first describes the types of information to which the

exemption applies,10 and then states categorically that "there

10 Paragraph 15 of the declaration states:

This exemption applies to withhold identities of
and personal information about third party individuals,
release of which could subject such persons to unwanted
and even unlawful efforts to gain further access to
them or personal information, harassment or harm,
exposure to unwanted and/or derogatory publicity and
inferences arising from their connection to the case,
all to their detriment.

This exemption also applies to withhold identities
of individuals such as special agents, government
employees, and local law enforcement personnel who
participated in the investigation and prosecution of
the referenced cases. Individual duties and
assignments are not public and such publicity as would
likely arise from disclosure would seriously impede, if
not totally jeopardize law enforcement effectiveness in
subsequent cases, even subjecting such individuals to
harassment or harm. These persons have protected
privacy interests in the conduct of law enforcement
investigations.

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was no public interest in the release of this information nor any

interest which would counterbalance the individual's privacy in

the information withheld under this exemption." The declaration

states that each document was evaluated for segregability, and

that, where a document was withheld in its entirety, "EOUSA

determined that no meaningful portions could reasonably be

released without destroying the integrity of such document as a

whole."

The Gay declaration supports the privacy withholdings by

emphasizing that the Church's reported policy of retribution

against its perceived enemies provided the basis for the

Department's substantial concern about protecting the personal

privacy of government employees and third party contacts. Gay

repeats essentially the same general conclusion about

segregability offered by Boseker: "There are no segregable

portions which have not been released which could be released

without creating a substantial risk of disclosing information

protected from disclosure."

These declarations are written too generally to supplement

the index in any meaningful way. They treat the documents within

various exemption categories as a group, without referring to

specific documents, and make broad statements essentially

explaining that the documents were withheld because they contain

the type of information generally protected by that particular

exemption. The statements regarding segregability are wholly

conclusory, providing no information that would enable a

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requester to evaluate the agency's decisions. Thus, none of the

functions of the index identified in Maynard are served: the

declarations do not demonstrate careful analysis of each document

by the government; the court has not been assisted in its duty of

ruling on the applicability of an exemption; and the adversary

system has not been visibly strengthened. See supra p. 7.

Although "[t]here is no set formula for a Vaughn index,"

Hinton v. Department of Justice, 844 F.2d 126, 129 (3d Cir.

1988), to serve its purpose the listing "`must supply "a

relatively detailed justification, specifically identifying the

reasons why a particular exemption is relevant and correlating

those claims with the particular part of a withheld document to

which they apply,"'" Krikorian, 984 at 467 (citations omitted)

(emphasis in original). It is "the function, not the form, which

is important," Hinton, 844 F.2d at 129, and the question is

whether the particular taxonomy employed "afford[s] the FOIA

requester a meaningful opportunity to contest, and the district

court an adequate foundation to review, the soundness of the

withholding," Wiener, 943 F.2d at 977-78.

The lack of justification for withholding lengthy documents

in their entirety is the most pervasive problem with the index.

Upon encountering similarly imprecise indices, the District of

Columbia Circuit recently noted, in words equally apt here, that

the materials submitted

"[we]re written in terms of documents, not information,
but `[t]he focus in the FOIA is information, not
documents, and an agency cannot justify withholding an

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entire document simply by showing that it contains some
exempt material.'"

Krikorian, 984 F.2d at 467 (citation omitted). We think it

fruitful to examine closely several entries as a way of

demonstrating the index's deficiencies:

* Document No. 5 is a 32-page declaration, with four pages

of supporting exhibits. The contents column contains the

following information:

Individual third party declaration of and concerning
relationship with Church. Not evidenced as admitted
into court or on public record, so deemed confidential
statement. (WIF)

The entire document is withheld pursuant to Exemption 7(C), the

personal privacy exemption. The entry fails, however, to

indicate why privacy concerns could not be met simply by deleting

identifying information. Without some further elaboration of the

document's contents, the Church is unable to dispute the claim

that no portion of the 36 pages is segregable.11

*Document No. 6 is an 11-page affidavit from a third party

containing the following information:

11 The government states in its brief with respect to this
document that "the EOUSA could properly determine that even
partial disclosure might well allow plaintiffs to identify the
declarant through the nature of the information disclosed." The
government unquestionably could make such a determination, but it
needs to provide more than this unsupported conclusion to justify
withholding the whole document. Is the document full of personal
anecdotes, whose perspective would tend to reveal the declarant,
thus supporting this conclusion? Or does the document simply
give one individual's description of the way the Church generally
treats members, and thus arguably include material that could be
segregated from the identifying information?

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Individual third party affidavit concerning Church and
other matters. Not evidenced as admitted into court or
on public record, so deemed confidential. (WIF)

The entire document is withheld pursuant to Exemption 7(C), as

well as under the Privacy Act, 5 U.S.C. 552a(j)(2).12 Again,

no attention is given to segregability. What were the "other

matters" described? This entry unquestionably fails to supply

the Church with enough information "`to permit [it] to present

its case effectively,'" Orion Research Inc. v. EPA, 615 F.2d 551,

553 (1st Cir. 1980) (citation omitted), the function the index

was conceived to perform.

*Document No. 20 is a 49-page deposition transcript

described as follows:

Transcript of deposition of third party individual
taken by private reporting service in Commonwealth of
Mass. (WIF)

The entire document is withheld pursuant to Exemption 7(C), yet

nothing in the entry indicates why the privacy interest at stake

could not be protected simply by redacting identifying

information.

12 Section (j)(2) exempts from mandatory disclosure records
maintained by an agency that performs as its principal function
any activity pertaining to the enforcement of criminal laws.
Section (k)(2) of the Act similarly exempts certain investigatory
materials compiled for law enforcement purposes in other than
criminal matters. Although the Boseker Declaration states that
all of the relevant records in this case were exempt under one or
the other of the Privacy Act provisions, only certain of the
entries include (j)(2) as a justification for nondisclosure.
See, e.g., Document Nos. 6, 11, 13, 15-19, 43, 46, 53, 55, 56,

58, 60-62, 75, 76, 95, 109, 111, 115-121, 123, 125, 127, 146,
185, 187, 190, 191.

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*Document No. 96 is a six-page deposition summary, withheld

pursuant to Exemption 7(C), and described only as a "[s]ummary of

deposition of third party individual." Segregability once again

is not addressed. The entry for Document No. 104, also a six-

page deposition summary, is similarly deficient.

*Document No. 141 is a 29-page declaration withheld pursuant

to 7(C), described as follows:

Third party individual/source declaration. Not public
record or waiver of confidentiality. (WIF)

As with other entries, there is no explanation about why the

deletion of identifying information would not suffice to meet

privacy concerns.

The district court concluded that the index, as supplemented

by the Boseker and Gay declarations, fulfilled the government's

obligation to supply "reasoned justification" for its

withholdings, and it noted that the Church had presented no

evidence suggesting bad faith in the government's response. The

court observed that the government had supported the individual

withholdings with greater specificity than this court had

ratified in Maynard.

In our view, however, the government's showing fell short of

providing the Church with a "`meaningful opportunity,'" see

Wiener, 943 F.2d at 977, to challenge a substantial number of its

unilateral decisions to withhold documents, thus depriving the

district court of "the controverting illumination that would

ordinarily accompany a request to review a lower court's factual

determination," Vaughn, 484 F.2d at 825. We disagree with the

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district court that the showing exceeded that affirmed in

Maynard. In that case, see 986 F.2d at 557-59, the FBI produced

the withheld documents in redacted form, withholding only those

portions that it claimed were exempt. Next to each portion

withheld, the FBI provided a coded reference to exemption claims

specifically identified in a separately filed declaration. The

government also provided copies of the unredacted documents for

the court's in camera review. Unlike this case, therefore, the

court in Maynard was able to perform a close review of individual

documents.

The government suggests that, in the absence of any

legitimate question of good faith, its repeated review of the

documents, each time leading to a conclusion that no significant

non-exempt segments could be released, is sufficient to justify

its withholding decisions and failure to segregate. It claims

that the only meaningful way to test the Department's

determinations would have been through in camera review, which

the Church did not request.

A lack of bad faith on the part of the government, however,

does not relieve it of its obligation in the first instance to

provide enough information to enable the adversary process to

operate in FOIA cases. The presumption of good faith accorded to

agency affidavits, see Carney v. Department of Justice, 19 F.3d

807, 812 (2d Cir. 1994), petition for cert. filed, 63 U.S.L.W.

3009 (U.S. June 21, 1994) (No. 93-2141); Maynard, 986 F.2d at

560, can only be applicable when the agency has provided a

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reasonably detailed explanation for its withholdings, see

Maynard, 986 F.2d at 560. A court may not without good reason

second-guess an agency's explanation, but it also cannot

discharge its de novo review obligation unless that explanation

is sufficiently specific.

Additionally, the fact that the Church did not request in

camera review in no way lessens the government's burden to make

an adequate showing. FOIA provides for in camera review, at the

district court's discretion, if the court finds the agency's

materials in support of exemption to be too generalized. See id.

at 557. In other words, in camera review is a tool available to

a court when the government's showing otherwise is inadequate to

satisfy the burden of proving the exempt status of withheld

documents. Id. at 557-58. The Church had no obligation to

request such a review.

We emphasize that the index examples described above are

merely illustrative, and that numerous other entries suffer from

similar imprecision. We by no means suggest, however, that every

entry is vulnerable. The index is notably inadequate with

respect to lengthier documents, where the lack of correlation

between the exemptions claimed and specific portions of the

document, and the failure to address segregability, combine to

make the government's showing particularly vague. In contrast, a

number of documents consist of a single page. It is fairly

inferable from the entries for many of these that there is no

meaningful segregable non-exempt content, and we see nothing to

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be gained from requiring more detail. See, e.g., Document Nos.

8, 9, 48, 56, 59, 127. Similarly, where multiple exemptions are

claimed for these short documents, the lack of correlation

typically is not a problem.

The government makes two points regarding the adequacy of

its declarations and Vaughn index that warrant response. First,

it asserts that the degree of detail required in an index depends

upon the nature of the documents at issue and the particular

exemption asserted. We agree that different approaches apply to

the various statutory exemptions, and we will discuss the

specific exemptions claimed by the government in the next

section. At this juncture, we note simply that a categorical

approach to nondisclosure is permissible only when the government

can establish that, in every case, a particular type of

information may be withheld regardless of the specific

surrounding cirumstances. See supra p. 8.

The government also observes that courts have approved

indices with less detail where the records at issue are

voluminous, citing Meeropol v. Meese, 790 F.2d 942, 956-57 (D.C.

Cir. 1986). In Meeropol, government agencies retrieved

approximately 500,000 pages of records and released approximately

200,000 as a result of what the court described as perhaps "the

most demanding FOIA request ever filed," id. at 951. Both the

search and the methods used to evalute the search in that case

were extraordinary, and, in our view, do not support the

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sufficiency of a sketchy index in this case.13 Giving full

weight to the concern that the government should not be subjected

to unrealistically exhaustive labors, we nevertheless are

convinced that the task of reconsidering the 191 documents,

adding meaningful detail or explanation where necessary, would

not pose an unreasonable burden on the government. Indeed,

including this information at the outset would have required

negligible incremental effort.

Moreover, even when generic exemptions are appropriate, the

Supreme Court contemplates that the government provide meaningful

detail in support of its withholdings. In Landano, the Court

rejected the government's argument that a source should be

presumed confidential within the meaning of Exemption 7(D)

whenever the source provides information to the FBI in the course

of a criminal investigation. It held, however, that the

inference could be supported by reference to more narrowly

defined generic circumstances. For example, it would be

reasonable to infer that paid informants normally expect their

cooperation with the FBI to be kept confidential. Similarly, the

13 The government's other citation for this point, Weisberg

v. Department of Justice, 745 F.2d 1476, 1483 (D.C. Cir. 1984),

also involved a tremendous search, resulting in disclosure of
approximately 60,000 pages of documents. The district court in
that case ordered preparation of a Vaughn index of every two

hundredth page of responsive material, a supplement to that
index, and in camera submission of a number of documents wihheld

in their entirety. Id. at 1489-90. The circuit approved the

sampling procedure because the number of documents was so great
and "it would not realistically be possible to review each and
every one." Id. at 1490.

-22-

character of the crime at issue or the source's relation to the

crime could support such an inference.

It is not enough, however, for the government simply to

state blandly that the source's relationship to the crime permits

an inference of confidentiality. Rather, the government has an

obligation to spell out that relationship:

[W]hen a document containing confidential source
information is requested, it generally will be possible
to establish factors such as the nature of the crime
that was investigated and the source's relation to it.
Armed with this information, the requester will have a
more realistic opportunity to develop an argument that
the circumstances do not support an inference of
confidentiality.

Landano, 113 S. Ct. at 2024.

Of course, as the Court acknowledged in the next sentence of

this passage from Landano, the government is not expected to

provide so much detail in its supporting materials that it risks

compromising the very interests it is seeking to protect. The

agency may request in camera review as a way of demonstrating

that no further specificity should be required, and reviewing

courts should consider carefully whether such a step is feasible

and appropriate. As much as possible should be done openly,

however, keeping in mind the goal of advancing adversarial

testing of agency decisions. See Wiener, 943 F.2d at 979

("Unless the agency discloses `as much information as possible

without thwarting the [claimed] exemption's purpose . . . , the

adversarialprocessisunnecessarilycompromised."(citationomitted)).

We strongly believe that there are meaningful additions that

could be made to the Vaughn index in this case without

-23-

jeopardizing the interests at stake. In the next section, which

discusses the specific exemptions invoked by the Department, we

note some particular suggestions for improvement.

C. Specific Exemptions

The Department invoked six different FOIA exemptions, alone

or in combination, in support of its withholdings. On appeal,

the Church does not challenge the government's use of either

Exemption 2, which protects from disclosure information related

solely to the internal personnel rules and practices of an

agency, see 5 U.S.C. 552(b)(2), or Exemption 7(F), which

provides for withholding of law enforcement information that

"could reasonably be expected to endanger the life or physical

safety of any individual," 5 U.S.C. 552(b)(7)(F).

(1) Exemption (b)(3) and Fed. R. Crim. P. 6(e). FOIA

Exemption 3, 5 U.S.C. 552(b)(3), allows the withholding of

materials that are "specifically exempted from disclosure by

statute . . . ." The parties agree that the Department properly

invoked this provision to withhold grand jury materials made

exempt from disclosure by Rule 6(e) of the Federal Rules of

Criminal Procedure. See Fund for Constitutional Gov't v.

National Archives and Records Serv., 656 F.2d 856, 867 (D.C. Cir.

1981). The Church complains, however, that it is impossible to

determine from the Vaughn index and affidavits whether all of the

documents for which the Department asserted this privilege

genuinely constitute "grand jury" material.

-24-

As the district court recognized, the scope of secrecy

afforded grand jury materials is "necessarily broad." Id. at

869.

It encompasses not only the direct revelation of grand
jury transcripts but also the disclosure of information
which would reveal "the identities of witnesses or
jurors, the substance of testimony, the strategy or
direction of the investigation, the deliberations or
questions of the jurors, and the like."

Id. (quoting SEC v. Dresser Indus., Inc., 628 F.2d 1368, 1382

(D.C. Cir. 1980)). In addition, unlike actions under other FOIA

exemptions, agency decisions to withhold materials under

Exemption 3 are entitled to some deference. We have observed

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," Maynard, 986 F.2d at 554 (quoting Aronson, 973 F.2d at

965, 967).

We are satisfied that, under this standard, documents

identified as grand jury exhibits, and whose contents are

testimonial in nature or otherwise directly associated with the

grand jury process, such as affidavits and deposition

transcripts, ordinarily may be withheld simply on the basis of

their status as exhibits.14 We distinguish such materials from

business records or similar documents "created for purposes

independent of grand jury investigations, which have legitimate

14 This would include, inter alia, document Nos. 2 (grand

jury list of documents), 3 (exhibits list), 130-33, 142, 148,
153, 163, 172, 173, 181, 182, 184, 187, 188-90.

-25-

uses unrelated to the substance of the grand jury proceedings,"

United States v. Dynavac, Inc., 6 F.3d 1407, 1412 (9th Cir.

1993). Although these documents, too, may be subject to

nondisclosure under Exemption 3 if they are grand jury exhibits,

the government needs to provide some basis for a claim that

releasing them will implicate the secrecy concerns protected by

Rule 6(e).15

The requirement that the government explain the basis for

its conclusion that Rule 6(e), and thus Exemption 3, at least

arguably permits withholding of certain documents applies a

fortiori to materials not specifically identified as grand jury

exhibits, but which simply were located in grand jury files. In

this case, for example, Document Nos. 164, 166-170, 174-180 and

183 are labelled as "Grand Jury Materials," and most were found

in a file marked "Grand Jury."16 There is no indication,

15 We think it reasonable for an agency to withhold any
document containing a grand jury exhibit sticker or that is
otherwise explicitly identified on its face as a grand jury
exhibit, as release of such documents reasonably could be viewed
as revealing the focus of the grand jury investigation. See Fund

for Constitutional Gov't v. National Archives and Records Serv.,

656 F.2d 856, 869 (D.C. Cir. 1981) (information "identifying
documents considered by the grand jury . . . falls within the
broad reach of grand jury secrecy . . . ."). See, e.g., Document

Nos. 35, 52. Whether some portion of the document is segregable,
however, also needs to be considered and addressed.

16 The inadequacy of the Vaughn index is well illustrated by

the entries for Document Nos. 178 and 179. Both documents are
identified as one-page declarations, with 20-page attachments.
No. 178 is described as originating "from file marked `Grand
Jury,'" while 179 is identified only as "Grand Jury Materials."
Both are claimed exempt under Exemption 3, as well as Exemption
7(C), but no specifics are given as to the contents of the
documents and whether all, or only part, of the document
implicates privacy concerns.

-26-

however, whether the materials impermissibly would reveal the

inner workings of the grand jury. It cannot be that exposure to

the grand jury immunizes information from future disclosure,

regardless of its impact on the interest underlying Rule 6(e).

See Senate of Puerto Rico, 823 F.2d at 582 ("There is no per se

rule against disclosure of any and all information which has

reached the grand jury chambers . . . .").17 The government is

obligated to offer some support for its claim that release of the

sought-after documents would compromise the secrecy of the grand

jury process.18

(2) Exemption (b)(5). FOIA Exemption 5, 5 U.S.C.

552(b)(5), permits withholding of "inter-agency or intra-agency

memorandums or letters which would not be available by law to a

party other than an agency in litigation with the agency." This

exemption has been interpreted to encompass "those documents, and

only those documents, normally privileged in the civil discovery

context," NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975).

Consistent with a change in policy by the Clinton Administration,

17 Indeed, we suspect that a number of documents found in
grand jury files would not be identifiable as connected to a
grand jury proceeding at all because they were generated for
another purpose, and presumably would not be labeled as grand
jury material upon release.

18 We have tried through our approach to the grand jury
issue to tread a path that honors the requester's entitlement to
an adequate and lawful explanation for any withholding decision,
but protects the government from unreasonable burdens in
justifying nondisclosure. The government's obligation thus is
minimal except for materials assertedly connected to a grand jury
investigation that bear no facial connection to grand jury
proceedings.

-27-

the Department has since the time of the district court's opinion

released a number of documents previously withheld based on the

attorney-client and deliberative process privileges, and now

invokes Exemption 5 only for certain documents assertedly

protected by the attorney work-product privilege.

To withhold a document based on this privilege, the

Department must prove that it was prepared under the direction of

an attorney in contemplation of litigation. See Senate of Puerto

Rico, 823 F.2d at 586; Sprague v. Director, Office of Workers'

Comp. Programs, Etc., 688 F.2d 862, 869 (1st Cir. 1982). And, as

with all exemptions, it must offer some basis for concluding that

there are no segregable, nonexempt portions of the document. The

district court found that the Boseker declaration and Vaughn

index justified all of the Exemption 5 withholdings, and it

pointed to Boseker's assertion that the records to which the

work-product privilege was applied reflect "such matters as trial

preparation, trial strategy, interpretations, and personal

evaluations and opinions pertinent to the Church's and other

third party individuals' civil and criminal cases."

The court specifically considered Document No. 4, whose

entry in the Vaughn index we previously have quoted, see supra p.

12, and concluded that the entry was sufficient to validate the

Department's decision to withhold the entire document under

Exemption 5. We do not agree. For purposes of this exemption,

the Vaughn index states only that document No. 4 consists of 21

pages of typed attorney notes "marshalling facts and sources of

-28-

information created in contemplation of litigation." The Boseker

declaration adds to this only generalized comments about all of

the documents for which the work-product privilege was asserted.

We believe that, at a minimum, an agency seeking to withhold a

document in its entirety under this exemption must identify the

litigation for which the document was created (either by name or

through factual description) and explain why the work-product

privilege applies to all portions of the document.

As presently written, the entry for document No. 4 indicates

that at least some of the 21 pages of notes involve material

covered by the attorney work-product privilege. Because there is

no correlation between the three claimed exemptions (Nos. b(5),

b(7)(D), b(7)(C)) and specific portions of the document, however,

it is not clear whether Exemption 5 is intended to justify

withholding of the entire document. Moreover, the index does not

disclose the nature of this document: Is it a draft of a

pretrial memorandum?; an internal memorandum evaluating whether

to file charges or whom to call as witnesses?; or simply a

summary of all information collected to date? Neither the Church

nor the court is able to evaluate meaningfully whether all of the

factual material properly is exempted from disclosure because it

is integrated into the document as part of the attorney's pre-

trial work, in which event it appropriately could be withheld,

see Mervin v. FTC, 591 F.2d 821, 826 (D.C. Cir. 1978), or whether

the agency has overstepped proper boundaries in determining what

constitutes a document prepared in anticipation of litigation.

-29-

In Mervin, the majority concluded that further government

affidavits or in camera review was unnecessary for a

determination of segregability because the affidavit already

submitted demonstrated that any factual material in the four

documents at issue there "is incidental to and bound up with,

discussion of litigation strategy and the deliberative processes

of attorneys actively preparing their defense for a pending

lawsuit." Id.19 We do not believe such a conclusion can be

reached in this case based on the information provided thus far

for a number of documents claimed exempt under Exemption 5. See,

e.g., Document Nos. 4, 40 (74-page "prosecution memo"), 76, 91,

92 and 139.20 Certain other documents for which the Department

has invoked Exemption 5 simply are not adequately described to

permit meaningful review of the withholding decision. See, e.g.,

Document Nos. 105-109.21

19 The district court in this case relied on Mervin in

upholding the Department's application of Exemption 5, noting
that an attorney's affidavit sufficed there to prove that factual
material contained within the documents fell within the work-
product privilege. Unlike the affidavit in Mervin, however, the

affidavits here are not document-specific, and are thus much less
informative.

20 We note that factual material contained within a document
subject to the work product privilege often will be embraced
within the privilege, and thus be exempt from disclosure. See A.

Michael's Piano, Inc. v. FTC, 18 F.3d 138, 147 (2d Cir. 1994);

Martin v. Office of Special Counsel, MSPB, 819 F.2d 1181, 1186

(D.C. Cir. 1987).

21 We reiterate a point made earlier, that the lack of
specificity poses a particular problem with respect to lengthier
documents. Although the entries for a number of shorter
documents suffer some of the same inadequacies -- notably lack of
correlation between text and exemptions, and failure to address
segregability -- the brevity of these documents makes it

-30-

(3) Exemption b(7)(C). FOIA exemption 7(C), 5 U.S.C.

552(b)(7)(C), exempts from disclosure information compiled for

law enforcement purposes that "could reasonably be expected to

constitute an unwarranted invasion of personal privacy." The

Boseker and Gay declarations state that the Department relied on

Exemption 7(C) to withhold names and other personal information

about various individuals, including personnel of the United

States Attorney's Office and FBI agents, other federal, state and

local government personnel, and individuals who provided

information to the FBI or the USAO.

The parties agree that Exemption 7(C) requires balancing the

privacy interests at issue against any public interest in

disclosure, see Reporters Committee, 489 U.S. at 762, and further

agree that information identifying specific individuals usually

may be withheld because of these individuals' "significant

privacy interests in not having their names revealed," Maynard,

986 F.2d at 566. The Church, however, contends that the

Department's Vaughn index repeatedly fails to explain why the

agency has withheld an entire document rather than releasing it

with the identifying information redacted.22

reasonable to validate the government's withholding decision with
little or no additional information. For example, if the
Department simply identifies the prosecution for which Document
No. 43 was prepared, no further details are necessary. See also,

e.g., entries for Document Nos. 68, 70, 74, 93.

22 In its brief, the government suggests that it was
warranted in dispensing with the item-by-item detail that
ordinarily is necessary to justify Exemption 7(C) withholdings
because a categorical determination to withhold personal
information is permissible in the absence of a demonstrated

-31-

We have pointed to just such deficiencies in our earlier

discussion of particular documents, see supra pp. 15-17, and need

not retread that ground. It suffices to say at this point that

many of the index entries for documents assertedly exempt under

Exemption 7(C) lack the necessary specificity for a meaningful

review of the agency's decision to withhold them in their

entirety. The district court did not address the Exemption 7

segregability issue.

(4) Exemption b(7)(D). FOIA exemption 7(D), 5 U.S.C.

552(b)(7)(D), protects from disclosure

records or information compiled for law enforcement
purposes . . . [that] could reasonably be expected to
disclose the identity of a confidential source . . .
and, in the case of a record or information compiled by
criminal law enforcement authority in the course of a
criminal investigation . . . information furnished by a
confidential source.

The exemption protects the identity of a confidential source, any

information that could identify such a source, and all

information furnished by such a source. Irons v. FBI, 880 F.2d

1446, 1447 (1st Cir. 1989) (en banc). The Supreme Court's

public interest in that information. We agree that the Church
has not put forward a public interest in the names or other

personal indentifying information that would override the strong
privacy interest in such information contained in law enforcement
files, see Maynard, 986 F.2d at 566. A categorical exclusion for

identifying information therefore is appropriate here. Cf.

SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1205-06 (D.C. Cir.

1991). This conclusion does not resolve the Church's central
claim, however -- that the government failed to demonstrate on an
item-by-item basis why documents should not be released with the
personal identifying information redacted. Cf. Norwood v. FAA,

993 F.2d 570, 574-75 (6th Cir. 1993) (under privacy Exemption 6,
"excluding from disclosure any and all fragments of information
that might assist a diligent researcher in identifying a person .
. . is not supportable").

-32-

Landano decision, 113 S. Ct. 2014, which we have described

earlier, see supra at pp. 8, 21-22, addressed the government's

contention that all sources supplying information to a law

enforcement agency during a criminal investigation should be

presumed confidential within the meaning of Exemption 7. The

Court rejected this broad presumption, ruling instead that a

source properly is considered confidential only if there has been

an express assurance of confidentiality or if the particular

circumstances support an inference of confidentiality. When the

factors suggesting confidentiality are present, the government

may withhold a document under Exemption 7(D) without detailing

the circumstances surrounding a particular interview. Id. at

2023-24.

After the Landano decision, the government re-evaluated all

of the documents to which it had applied Exemption 7(D), deleted

that provision as a basis for withholding 39 documents, and

consequently released an additional 20 pages of information to

the Church. The district court found that the remaining 7(D)

claims were supported adequately by the Vaughn index and the

affidavits.

Our review of the index, however, reveals a significant

number of entries invoking Exemption 7(D) that are insufficient

because they either fail to specify whether the source was

provided an express or implied grant of confidentiality, or do

not provide sufficient detail about the surrounding circumstances

to support an assertion of implied confidentiality.

-33-

Document No. 51 in the Vaughn index, for example, was

withheld based solely on Exemption 7(D). The full description

for the document is as follows:

Third party individual correspondence to AUSA regarding
draft declaration of third party individual witness
statements confidentially obtained. Source identified
as confidential elsewhere. (WIF)

The entry does not indicate where in the record this source was

identified as confidential. It could have been referring, for

example, to the immediately preceding entry, for Document No. 50.

That entry, however, concerns a 10-page cover letter and attached

letter described as follows:

Third party individual correspondence to AUSA regarding
attached handwritten letter and notes of third party
source of information gathered in course of
investigation. Implied confidentiality based upon
source and relationship to investigation. Refers to
not being at liberty to disclose source. (WIF).

We do not believe it is sufficient, under Landano, to invoke

Exemption 7(D) by stating generally that confidentiality was

implied from a relationship between the author of the document

and the investigation. The Supreme Court's Landano decision

clearly contemplates that a claim of implied confidentiality

ordinarily will require disclosure of the specific nature of the

factors urged in support of the implication, such as the type of

crime or the source's relationship to it. Only in this way will

the requester have a "realistic opportunity" to develop an

argument that the circumstances do not support an inference of

confidentiality, see Landano, 113 S. Ct. at 2024.

-34-

Thus, the government must provide more detail to meet its

burden of demonstrating that Document No. 50 falls within

Exemption 7(D).23 Document No. 51 is obviously likewise

deficient. Similar problems exist in other entries, including

Nos. 55, 60, 62, 67, 70, 76, 92, 93, 94, 97, 112, 113, 122-23,

127 and 129.24 We agree with the district court, however, that

an investigator's policy of affording confidentiality in

interviews is an adequate basis upon which the government may

consider the information provided to the investigator to be

confidential. See, e.g., Document Nos. 7 and 19. We suspect

that, in such cases, the government at the time of the document

search rarely would be in a position to learn the precise nature

of any discussion concerning confidentiality between the

investigator and interviewee. We think it reasonable to presume,

based on the investigator's policy, that he or she had given an

assurance of confidentiality.

IV. Where Do We Go From Here?

Our conclusion that the government has failed to provide

adequate support for withholding many of the 191 documents listed

23 The government, of course, need not provide so much
detail that the confidentiality is destroyed. It must, however,
explain as specifically as possible why providing additional
information would jeopardize the confidentiality interest. If
the explanation is too sketchy, in camera review may be

necessary.

24 We contrast these entries with those containing facts
providing a rationale for the inference of confidentiality, such
as No. 13 (author incarcerated); No. 100 (communication between
husband and wife); No. 101 (threats of harm and harassment); Nos.
102-03 (death threat), No. 120 (threatened harm)

-35-

in the Vaughn index requires that we vacate the summary judgment

for the agency and return the case to the district court for

further proceedings.

What precisely should happen upon remand we leave to the

district court's discretion. We offer a few thoughts, however,

about what occurs to us as a logical and appropriate course of

action. The court may wish to begin by asking the parties to

submit a brief statement identifying those documents it believes

need further justification in light of our decision. Aided by

these, the court could make its own determination of the

documents needing additional review, and then direct the

government to revise its submissions with respect to only those

specific records. Any dispute as to whether other entries should

be included could be raised at that time.

In any such proceeding, we assume the good faith and

reasonable cooperation of the requesting party as well as of the

government. Indeed, the workability of FOIA depends largely upon

the responsible, as well as responsive, efforts of the parties.

If, after the government has given additional attention to

the specified documents, the index remains opaque with respect to

certain documents and no other support is provided, the court has

various options for proceeding. It could choose to permit

discovery limited to specified documents, it could conduct an in

-36-

camera review of selected documents, it could order release of

somedocuments,or itcould directacombination ofthese procedures.25

We recognize that the Department already has provided a

significant amount of information to the Church, and we do not

minimize its effort. Its obligation, however, is to provide

enough information about each document to permit "effective

advocacy" by the requester:

[T]he [agency] must bear in mind that the purpose of
the index is not merely to inform the requester of the
agency's conclusion that a particular document is
exempt from disclosure under one or more of the
statutory exemptions, but to afford the requester an
opportunity to intelligently advocate release of the
withheld documents and to afford the court an
opportunity to intelligently judge the contest.

Senate of Puerto Rico, 823 F.2d at 979.

The judgment of the district court therefore is AFFIRMED as

to the adequacy of the search. The judgment is otherwise

25 The Church on appeal has made a broad challenge to the
adequacy of the government's explanations for withholding
documents, and has not argued about the merits of the withholding
decisions for those documents for which the index and affidavits
are sufficiently detailed. We likewise have focused on the
general adequacy of the showing, and have not considered the
merits of any particular withholding decision. We note, however,
that many of the index entries appear to support nondisclosure of
the documents, and we expect that the district court on remand
will simply reaffirm its previous determinations that those
documents are exempt from release.

We also have not considered the Church's contention that the
Department improperly referred approximately 300 pages of
material originating from other agencies to those agencies for
processing. The issue was not raised in the Church's opposition
to the motion for summary judgment, and we therefore decline to
consider it here. The district court may choose to take up this
matter on remand.

-37-

VACATED, and the case REMANDED for further proceedings consistent

with this decision. No costs.

-38-