Opinions of the United
1995 Decisions States Court of Appeals
for the Third Circuit
8-1-1995
Davin v Dept of Justice
Precedential or Non-Precedential:
Docket 94-3590
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 94-3590
ERIC DAVIN,
Appellant
v.
UNITED STATES DEPARTMENT OF JUSTICE,
FEDERAL BUREAU OF INVESTIGATION
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 92-cv-01122)
Argued May 16, 1995
BEFORE: COWEN, LEWIS and GARTH
Circuit Judges
(Filed August 1, l995 )
Marketa Sims (argued)
Reed, Smith, Shaw & McClay
435 Sixth Avenue
Pittsburgh, PA 15219-1886
COUNSEL FOR APPELLANT
ERIC DAVIN
Bonnie R. Schlueter
Michael L. Ivory (argued)
Office of United States Attorney
633 United States Post Office
and Courthouse
Pittsburgh, PA 15219
COUNSEL FOR APPELLEE
U.S. DEPARTMENT OF JUSTICE,
FEDERAL BUREAU OF INVESTIGATION
OPINION
1
COWEN, Circuit Judge.
Eric Davin appeals from the order of the district court
granting summary judgment in favor of the United States
Department of Justice, Federal Bureau of Investigation ("the FBI"
or "the government") in a Freedom of Information Act ("FOIA")
action. In response to a FOIA request by Davin, the FBI
submitted to the district court a Vaughn index that set forth
coded justifications and corresponding explanations for its
withholding of approximately 7,400 pages of information. Because
the Vaughn index submitted by the government did not sufficiently
describe the information withheld, the district court did not
have an adequate factual basis for determining whether the
claimed exemptions applied to the individual documents.
Accordingly, we will reverse the order of the district court and
remand this matter for further determinations consistent with
principles articulated in this opinion.
I.
Davin is a graduate history student at the University
of Pittsburgh in the field of labor history. In order to
complete his doctoral dissertation, in April 1986 Davin filed a
FOIA request with the FBI seeking "a complete and thorough search
of all filing systems and locations for all records . . .
pertaining to David Lasser and The Workers Alliance of America."
App. at 99 (emphasis in original). The Workers Alliance of
2
America ("WAA") was a nationwide organization representing the
interests of thousands of unemployed individuals during the
1930's and 1940's. For a time, the WAA was headed by David
Lasser. Because the WAA did not keep minutes of its meetings,
there are no other archives of information on its activities.
Lasser, who is now in his nineties, has provided the FBI with a
letter authorizing release of his files.
The WAA was investigated by the FBI during the 1930's
after the FBI received information that the organization was a
front for the Communist Party of America. The purpose of the
investigation was to determine the extent of Communist influence,
and the identity of WAA members who were members of the Communist
Party at the time. The FBI also investigated Lasser. According
to the FBI, Communists had captured positions of control within
the WAA by 1936. In 1940, Lasser resigned, claiming the WAA was
a front organization for the Communist Party.
In response to Davin's request, the FBI located nine
relevant files at either national headquarters or at the New York
field office. The FBI described the files as follows:
FBIHQ main file, 61-7586, (45 sections)
corresponds to NYFO main file, 100-3638, (6
sections). Both files pertain to an internal
security investigation and were compiled for
law enforcement purposes. A 61
classification is entitled "Treason or
Misprision of Treason" and involves
violations of Title 18, U.S.C., Sections
2381, 2382, 2389, 2390, 756 and 757. A 100
classification is entitled "Domestic
Security" and covers investigations by the
FBI in the domestic security field; e.g.,
Smith Act violations. The Attorney General
declared WAA to be within the purview of
3
Executive Order 9835, and later Executive
Order 10450. The first serial is dated March
5, 1936, and the last serial is dated October
21, 1960. . . .
FBIHQ main file, 124-2592 is a loyalty
investigation of David Lasser consisting of
two sections. This classification covers
security and loyalty investigations of
personnel employed by or under consideration
of employment with the European Recovery
Program. Investigation was conducted under
Public Law 472, 80th Congress. The first
serial in this file is dated January 25,
1949, and the last serial is dated October
29, 1951.
FBIHQ main file 121-413, (Loyalty of
Government Employees) consisting of one
section, pertains to a preliminary inquiry to
ascertain if David Lasser was associated with
the Communist Party or its front
organizations. Investigation of David Lasser
under the provision of Executive Order 9835 .
. . was instituted by the FBI on April 22,
1948. The first serial of this file is dated
October 24, 1947, and the last serial is
dated October 30, 1963.
FBIHQ main file, 151-748 involves one
section. This classification covers
referrals from the Office of Personnel
Management where an allegation has been
received regarding an applicant's loyalty to
the U.S. Government. The Agency for
International Development had requested the
FBI to conduct a full field investigation
under the provisions of Public Law 298, The
Foreign Assistance Act of 1961, as amended.
David Lasser was interviewed by the FBI in
1963 under the provisions of Executive Order
10450 . . . . The first serial is dated
December 12, 1963, and the last serial in
this file is dated January 29, 1976.
FBIHQ main file, 126-706 consists of one
section concerning a name check request on
David Lasser for clearance for access to
highly classified material by National
Security Resources Board. This
classification covers background
4
investigation conducted on individuals who
are to be assigned to duties under the
International Development Program. The first
and last serials are dated November 14, 1950,
and November 15, 1950, respectively.
FBIHQ main file 65-66314, (Espionage)
consisting of one section which contains
documentation based on information received
concerning the possibility that David Lasser
could be some individual who could divert
information to the detriment of the defense
of the United States. No investigation was
conducted. This file was opened on September
22, 1960 and closed on September 27, 1960.
FBIHQ main file, 47-13920 is a two-page file
which contains information that a
representative of WAA had made a claim that
he had authority from the Federal Government
to represent individuals in claims of various
municipalities. This file was opened and
closed on February 19, 1938. This
classification is entitled "Impersonation"
and covers violations of Title 18, U.S.C.,
Sections 912, 913, 915, and 916.
FBIHQ main file, 61-10652 (two sections) was
initially compiled to determine if David
Lasser might act as an informant for the FBI
or if he would be willing to supply details
concerning Communist Party activities in WAA.
The first serial of this file is dated June
20, 1940, and the last document in the file
is dated February 8, 1951.
Declaration of Special Agent Robert A. Moran, App. at 60-63
(footnotes omitted) [hereinafter all citations to the Appendix
refer to the Moran declaration].
The FBI asserts that its records relating to the WAA
total approximately 9,200 pages and its records on David Lasser
contain approximately 1,200 pages. As of May 18, 1991, the FBI
had released to Davin only 113 pages regarding the WAA and 150
pages on Lasser.
5
In April 1992, Davin filed a complaint for injunctive
relief demanding the production of the documents. Subsequently,
pursuant to an agreement between the parties, Davin and the
government submitted a joint motion to stay the case for 130 days
to permit the government to submit a Vaughn index.1 This motion
stipulated that the FBI had reviewed 6,889 documents pursuant to
Davin's FOIA request, had released 2,970 pages to Davin, and
claimed exemptions to the remaining 3,919 pages. The joint
motion further provided that the government would select
approximately 500 documents (roughly every fourteenth or
fifteenth page), compile a Vaughn index and submit it to the
court with a motion for summary judgment.
Included in the government's subsequent motion for
summary judgment was a declaration by FBI Special Agent Robert
Moran. The purpose of Moran's declaration was to provide the
court and Davin with a description of the material being withheld
and justifications for the government's assertions of FOIA
exemptions to withhold certain information contained in the
records. The declaration consisted of correspondences concerning
Davin's request, an explanation of the FBI's central records
system and electronic surveillance index, a list of records
pertaining to Davin's request, a sampling and definition of
1
A Vaughn index is an index correlating each withheld document,
or a portion thereof, with a specific exemption and relevant part
of an agency's justification for nondisclosure. The Vaughn index
is a tool designed to aid the court in determining whether the
agency has properly withheld the information requested. See
Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973) (Vaughn I), cert.
denied, 415 U.S. 977, 94 S. Ct. 1564 (1974).
6
documents, a detailed explanation of the coded format used for
justification of deleted material, and the justification for
redacted materials.
A sampling of 500 pages was selected from the files.
Each page was identified with a document number and indicated the
file from which it came. An explanation of the types of
documents in the sampling was also supplied. Portions of the
documents were redacted. Located in proximity to the redacted
material was a series of letters and numbers which corresponded
to specific FOIA exemptions. In those instances where an entire
page was redacted, justification code numbers for the withholding
were substituted for the deleted page.
To determine the pertinent justification for deleted
material on each processed document, the reader would refer to
the document in question, note the code number adjacent to the
deleted material and refer to the corresponding code categories.
The memorandum then listed twenty-seven justification categories
for withholding information, along with an explanation of the
various categories.
Moran's declaration listed the FBI Main Files regarding
Lasser and the WAA, but did not contain any factual description
of the specific documents and portions of the documents withheld.
Instead, Special Agent Moran offered generic explanations of the
"justification categories" used to encode the Vaughn index. No
specific index was created to factually link the generic
descriptions with the encoded deletions, and the explanations
themselves did not refer to Lasser or the WAA or any other fact
7
connected with this action. No attempt was made to provide an
individual rationale for the withholding of specific information.
The government asserted that of the 10,400 pages
identified (9,200 on the WAA and 1,200 on Lasser), 2,970 had been
released to Davin and that the remaining pages were being
withheld under the following FOIA exemptions: (1) Category
(b)(7)(C) Unwarranted Invasion of Personal Privacy; (2) Category
(b)(7)(D) Confidential Source Material; (3) Category (b)(7)(E)
Investigative Techniques and Procedures; and (4) Category (b)(2)
Information related Solely to the Internal Personnel Rules and
Practices of an Agency.
Following receipt of the declaration and exhibits,
Davin filed a motion to compel production of documents for in
camera review, arguing that the district court could not make an
accurate determination of the validity of the redactions based
upon the government's Vaughn index without review of the
documents. Davin asserted that the government had failed to
provide any factual information describing the individual
documents withheld and thus failed to demonstrate the
applicability of the exemptions it claimed.
The district court ordered an evidentiary hearing in
which Agent Moran testified about twenty-five of the
approximately 7,400 documents that had been withheld. These
documents were selected by Davin from the "Treason or Misprision
of Treason" file. Twenty-two of these pages were blackened out
in their entirety. Agent Moran described the various categories
8
under which the documents were withheld, although he did not
testify to the contents of the withheld documents themselves.
The district court held that Agent Moran's testimony,
together with the Vaughn index, demonstrated with "reasonable
specificity" why the documents were exempt from disclosure.
Accordingly, the district court granted the government's motion
for summary judgment and denied Davin's motion to compel in
camera examination. This appeal followed.
II.
A two-tiered test governs our review of an order of the
district court granting summary judgment in proceedings seeking
disclosure of information under FOIA. We must "first decide
whether the district court had an adequate factual basis for its
determination." McDonnell v. United States, 4 F.3d 1227, 1242
(3d Cir. 1993) (citing Patterson by Patterson v. FBI, 893 F.2d
595, 600 (3d Cir.), cert. denied, 498 U.S. 812, 111 S. Ct. 48
(1990)). This review is de novo and requires us to examine the
affidavits below to determine "whether the agency's explanation
was full and specific enough to afford the FOIA requester a
meaningful opportunity to contest, and the district court an
adequate foundation to review, the soundness of the withholding."
Id. (quoting King v. Department of Justice, 830 F.2d 210, 217-18
(D.C. Cir. 1987)).
9
After reviewing the affidavits, "[i]f this Court
concludes that the affidavits presented a sufficient factual
basis for the district court's determination, it must then decide
whether that determination was clearly erroneous." Id.
(citations omitted). Factual findings are clearly erroneous "'if
the findings are unsupported by substantial evidence, lack
adequate evidentiary support in the record, are against the clear
weight of the evidence or where the district court has
misapprehended the weight of the evidence.'" Id. (quoting Lame
v. Department of Justice, 767 F.2d 66, 70 (3d Cir. 1985) (Lame
II)).
The district court exercised jurisdiction in this
matter pursuant to 5 U.S.C. § 552(a)(4)(B) (1988) and 28 U.S.C.
§1331 (1988). Our jurisdiction in this appeal rests on 28 U.S.C.
§ 1291 (1988).
III.
Congress enacted the Freedom of Information Act, 5
U.S.C. § 552, in order "to facilitate public access to Government
documents." United States Dep't of State v. Ray, 502 U.S. 164,
173, 112 S. Ct. 541, 547 (1991). Premised on the belief that "an
informed electorate is vital to the proper operation of a
democracy," FOIA was intended to create an expedient tool for
disseminating information and holding the government accountable.
Coastal States Gas Corp. v. Department of Energy, 644 F.2d 969,
974 (3d Cir. 1981) (quoting S. Rep. No. 813, 89th Cong., 1st
Sess. 3 (1965)). Consistent with this purpose, FOIA requires
10
governmental agencies to make promptly available any records
requested unless the requested information is exempt from
disclosure under one of the nine specific exemptions set forth in
the FOIA statute itself. 5 U.S.C. § 552(b) (1988 & Supp. V
1993).
The Act creates a strong presumption in favor of
disclosure, Department of Air Force v. Rose, 425 U.S. 352, 361,
96 S. Ct. 1595, 1599 (1976), and requires the district court to
conduct a de novo review of a government agency's determination
to withhold requested information. 5 U.S.C. § 552(a)(4)(B). The
agency has the burden of showing that a statutory exemption
applies. Id. Moreover, any reasonably segregable portion of a
record must be made available to the person requesting the
record. 5 U.S.C. § 552(b).
The review of FOIA cases "is made difficult by the fact
that the party seeking disclosure does not know the contents of
the information sought and is, therefore, helpless to contradict
the government's description of the information or effectively
assist the trial judge." Ferri v. Bell, 645 F.2d 1213, 1222 (3d
Cir. 1981), modified, 671 F.2d 769 (3d Cir. 1992). In order to
"transform a potentially ineffective, inquisitorial proceeding
against an agency that controls information into a meaningful
adversarial process," the reviewing court may order the
government to prepare a "Vaughn" index, identifying each document
withheld, the statutory exemption claimed, and a particularized
description of how each document withheld falls within a
statutory exemption. Coastal States, 644 F.2d at 984. We have
11
adopted the principles and procedures outlined in Vaughn. See,
e.g., Ferri, 645 F.2d at 1222 & n.11.
The function of a Vaughn index and public affidavit is
to establish a detailed factual basis for application of the
claimed FOIA exemptions to each of the documents withheld. In
McDonnell v. United States, 4 F.3d 1227 (3d Cir. 1993), we
explained:
The significance of agency affidavits in a
FOIA case cannot be underestimated . . . .
Affidavits submitted by a governmental agency
in justification for its exemption claims
must therefore strive to correct, however
imperfectly, the asymmetrical distribution of
knowledge that characterizes FOIA litigation.
The detailed public index which in Vaughn we
required of withholding agencies is intended
to do just that . . . . Thus, when an agency
seeks to withhold information, it must
provide "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."
Id. at 1241 (quoting King, 830 F.2d at 218-19).
While there is no set formula for a Vaughn index, the
hallmark test is "that the requester and the trial judge be able
to derive from the index a clear explanation of why each document
or portion of a document withheld is putatively exempt from
disclosure." Hinton v. Department of Justice, 844 F.2d 126, 129
(3d Cir. 1988). An agency is entitled to summary judgment when
the agency's affidavits:
describe the withheld information and the
justification for withholding with reasonable
specificity, demonstrating a logical
connection between the information and the
12
claimed exemption . . ., and are not
controverted by either contrary evidence in
the record nor by evidence of agency bad
faith.
American Friends Serv. Comm. v. Department of Defense, 831 F.2d
441, 444 (3d Cir. 1987) (quoting Abbotts v. Nuclear Regulatory
Comm., 766 F.2d 604, 606 (D.C. Cir. 1985) (internal quotations
and citations omitted)).
A.
The fundamental inquiry in this case centers on whether
the "categorical" method of indexing utilized by the government
constitutes an adequate Vaughn index. The government offered the
declaration of Agent Moran as its Vaughn index. The Moran
declaration described the FBI's generalized FOIA procedures,
including a summary of exemption "justification categories." It
set forth a detailed explanation of the justification categories
used to redact the material included in the declaration. Each
justification category was denoted by a three or four letter
code. These codes appeared next to the redacted portions of the
exhibits. The government maintains that this declaration, in
conjunction with Agent Moran's testimony, was a sufficiently
adequate Vaughn index that permitted the district court to review
all of the exemption claims advanced.
In its brief the government provided representative
examples of the categorical indexing method it used. For
instance, the declaration explained that code "b7D-3" appearing
next to the first redacted paragraph means that the information
13
was withheld because it was provided to the FBI by a source who
had "received an express promise that it would be held in
confidence" and contained information that could lead to the
source's identity. App. at 87. The declaration further
explained that disclosure had the potential of causing "great
harm to the source," and of harming the FBI because of the
"chilling effect on the activities and cooperation of other
sources." App. at 88. As a second example, the government
demonstrated that the list of names and addresses provided by the
confidential source were withheld under category "b7C-6." The
declaration explained that this category means that the
information was withheld to prevent an unwarranted invasion of
privacy of the individuals named, since disclosure could
"announce to the world that they were of investigative interest
to the FBI and therefore permit derogatory inferences to be made
therefrom." App. at 79.
The government asserts that the use of a coded index
system sufficiently fulfills the functions served by the classic
Vaughn index, but in a more efficient and clear manner. Davin
argues that such a categorical approach, without the inclusion of
specific factual information that correlates the claimed
exemptions to the withheld documents, is not a sufficient Vaughn
index. We agree with Davin.
In McDonnell we held that in order for the FBI to
fulfill its burden to establish that materials withheld are
exempt from FOIA, "[t]he agency may meet this burden by filing
affidavits describing the material withheld and detailing why it
14
fits within the claimed exemption." McDonnell, 4 F.3d at 1241
(emphasis added) (citing King, 830 F.2d at 217-18). See also
Lame v. United States Dep't of Justice, 654 F.2d 917, 928 (3d
Cir. 1981) (Lame I) (the district court "should have had an
explanation by the FBI of why in each case disclosure would
result in embarrassment or harassment either to the individual
interviewed or to third parties" (emphasis added)). This
precedent requires that the agency provide the "connective
tissue" between the document, the deletion, the exemption and the
explanation. It is insufficient for the agency to simply cite
categorical codes, and then provide a generic explanation of what
the codes signify. See King, 830 F.2d at 223-34 ("A withholding
agency must describe each document or portion thereof withheld,
and for each withholding it must discuss the consequences of
disclosing the sought-after information. . . . Categorical
description of redacted material coupled with categorical
indication of anticipated consequences of disclosure is clearly
inadequate." (emphasis in original)(footnote omitted)).
In the case at hand, the government's references to
causing "great harm to the source," App. at 88, and to the
possibility that disclosure could "announce to the world that
they were of investigative interest to the FBI and therefore
permit derogatory inferences to be made therefrom," App. at 79,
are generic explanations broad enough to apply to any FOIA
request. They are not tied to the content of the specific
redactions. The justification codes and the explanations offered
by the government lack an explanation of how the release of the
15
information would violate the privacy interests and pose
potential risk to certain individuals. Moreover, throughout his
testimony, Agent Moran reiterated the broad categorical
explanations recited in his declaration; he did not refer to
specific facts. Thus, Agent Moran's testimony sheds no new light
on the government's reasons for nondisclosure.
While the use of the categorical method does not per se
render a Vaughn index inadequate, an agency using justification
codes must also include specific factual information concerning
the documents withheld and correlate the claimed exemptions to
the withheld documents. Compare Keys v. United States Dep't of
Justice, 830 F.2d 337, 350 (D.C. Cir. 1987) (upholding use of
indexing system where "the affidavit placed each document into
its historical and investigative context") with King, 830 F.2d at
221 (similar coding system found wanting "because we are left
with no contextual description for documents or substantial
portions of documents withheld in their entirety") and Wiener v.
FBI, 943 F.2d 972, 978-79 (9th Cir. 1991) ("boilerplate"
explanations of coded index found inadequate since "[n]o effort
is made to tailor the explanation to the specific document
withheld"), cert. denied, U.S. , 112 S. Ct. 3013 (1992). As
the Court of Appeals for the D.C. Circuit warned: "the goal of
descriptive accuracy is not to be sacrificed to the niceties of a
particular classification scheme." King, 830 F.2d at 225. Thus,
"a coding system might be employed to indicate applicability of a
given response to more than one segment of redacted material,"
but only "so long as the information supplied remains responsive
16
to each deleted segment without becoming categorical in tenor."
Id. at 224 (emphasis added).
The Vaughn index provided by the government affords
Davin little or no meaningful opportunity to argue for release of
particular documents. Indeed, the index provides no information
about particular documents that might be useful in evaluating the
propriety of the decision to withhold. Because of the paucity of
factual information related to the district court, the
categorical justification codes could not provide a sufficient
factual basis from which the district court could make its
determination. Accordingly, on the record before us, we hold
that the district court could not fulfill its duty of ruling on
the applicability of the claimed exemptions on the basis of the
coded indexing system utilized by the government for its Vaughn
index.
B.
Davin further contends that the district court erred in
failing to require the FBI to release all reasonably segregable
portions of the sample documents. Davin also maintains that the
FBI is required under FOIA to provide him with all reasonably
segregable material of all the 10,000 pages of material, not just
the sampled material. FOIA mandates that "[a]ny reasonable
segregable portion of a record shall be provided to any person
requesting such record after deletion of the portions which are
exempt under this subsection." 5 U.S.C. § 552(b). In
determining segregability, courts must construe the exemptions
17
narrowly with the emphasis on disclosure. Wightman v. Bureau of
Alcohol, Tobacco & Firearms, 755 F.2d 979, 982 (1st Cir. 1985).
The district court found that the FBI complied with its
obligation.
It is the agency's burden to prove that the withheld
portions are not segregable from the non-exempt material. 5
U.S.C. § 552(a)(4)(B). In the case at bar, the only evidence
submitted by the government in support of its position was Agent
Moran's conclusory statement that "[e]very effort has been made
to provide the plaintiff with all reasonably segregable portions
on [sic] the sampled material." App. at 67. Nowhere in Moran's
declaration did he describe the process by which he determined
that all reasonably segregable material of each of the withheld
documents or portions of documents had been released. Nor did
the government provide a factual recitation of why certain
materials are not reasonably segregable.
In its brief the government points, as an example, to
Exhibits C-1 through C-7 which Agent Moran explained had been
provided by a source under the express promise of
confidentiality. Government's Brief at 19-20. According to the
government, these documents contained a narrative in which a
number of individuals involved with the WAA were named. Exhibit
C-1 bore two coded references: "b7C-6" and "b7D-3." The
government explained that category b7C-6 refers to the names of
individuals who are of investigative interest to the FBI.
According to Moran's declaration, the release of this information
would constitute an unwarranted invasion of privacy. App. at 79-
18
80. Category b7D-3 indicates that the information was provided
by an individual who had received an express promise of
confidentiality. App. at 87. The government notes that a
portion of C-8 was released because the identity of the
confidential source could not be ascertained.
This representative example provided by the government
itself, as an illustration of its proper efforts to provide Davin
with all reasonably segregable information, in fact reflects the
inadequacy of the government's efforts. The government fails to
indicate why the privacy interests at stake could not be
protected simply by redacting particular identifying information.
Without some further elaboration of the document's contents,
Davin is unable to dispute the FBI's assertion that more
information is not segregable. Cf. Church of Scientology Int'l
v. United States Dep't of Justice, 30 F.3d 224, 232 n.11 (1st
Cir. 1994) (the government "needs to provide more than [an]
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?").
The Moran declaration is comprised of assertions that
documents were withheld because they contain the type of
information generally protected by a particular exemption. The
statements regarding segregability are wholly conclusory,
19
providing no information that would enable Davin to evaluate the
FBI's decisions to withhold. On remand, the government must
provide an adequate factual basis for the district court to
determine whether Davin has been afforded all reasonably
segregable information.2
Furthermore, the government must provide Davin with all
reasonably segregable non-exempt information, not just the non-
exempt information found in the sampled documents. The
government maintains that it is only required to produce all
reasonably segregable material from the sampled material. It
claims that because Davin agreed to a representative sampling of
approximately 500 pages of the 6,689 documents selected he
"should abide by his decision." Government's Brief at 19.
2
In addition to making findings without sufficient evidentiary
support, the district court may have also erred in holding that
more information was not reasonably segregable. Although our
scope of review on appeal is limited in this context, see
McDonnell, 4 F.3d at 1242, it appears that certain information
could be disclosed without jeopardizing possibly exempt
information. We note the colloquy between Agent Moran and
counsel for Davin regarding the deletions of certain headings in
the table of contents of a 200 page report. Agent Moran
testified that the deletions did not contain the name of a
confidential source or confidential information, but rather the
headings were redacted "because some of the information would
indicate possibly a particular area of the country" from where
the informant was operating and might, therefore, lead the
requester back to the identity of a particular confidential
source. App. at 618. We do not find it likely that a reference
to a particular "area of the country" would lead to the identity
of individuals who were given promises of confidentiality. On
remand, if after receiving a sufficient factual basis the court
determines that certain information is exempt from disclosure,
the district court should reexamine whether seemingly non-
identifying information such as this geographical information
should also be withheld.
20
The purpose of the Vaughn index is to help specify in a
large document which portions of the document are disclosable and
which are allegedly exempt. Vaughn v. Rosen, 484 F.2d 820, 827
(D.C. Cir. 1973) (Vaughn I), cert. denied, 415 U.S. 977, 94 S.
Ct. 1564 (1974). The indexing system "subdivide[s] the document
under consideration into manageable parts," so that once the
issues are focused, the reviewing court will have an easier task
"rul[ing] on each element of the itemized list" than it would if
the "agency were permitted to make a generalized argument in
favor of exemption." Id.
Courts have upheld the use of a representative sample,
such as the sample stipulated to in this case. See, e.g.,
Weisberg v. United States Dep't of Justice, 745 F.2d 1476, 1490
(D.C. Cir. 1984); Vaughn v. Rosen, 523 F.2d 1136, 1140 (D.C. Cir.
1975) (Vaughn II). Nevertheless, any decision as to those
documents is applicable to all of the documents at issue. See
Vaughn II, 523 F.2d at 1140 (noting that parties stipulated that
any decision regarding the representative sample is applicable to
all of the documents). Accordingly, on remand the district court
should reexamine the material in the sample, and any rulings it
makes regarding those materials must then be applied to the
entire body of the requested information. The government is then
obligated to provide Davin all the reasonably segregable material
of all the 10,000 pages requested, based upon the district
court's ruling.
These two holdings regarding general deficiencies in
the government's Vaughn index alone require reversal of the
21
district court's order and remand for further fact finding.
However, because on remand the district court may reach
determinations of specific exemptions, we find it instructive to
clarify certain contested issues and delineate the proper legal
standards for future resolution.
IV.
For the majority of the withheld information, the
government has claimed exemptions under 5 U.S.C. § 552(b)(7),
which applies to records or information compiled for law
enforcement purposes. Section 552(b)(7) provides, in relevant
part, that the following is exempt from disclosure:
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, (D)
could reasonably be expected to disclose the
identity of a confidential source, . . .
which furnished information on a confidential
basis, and, in the case of a record or
information compiled by a criminal law
enforcement authority in the course of a
criminal investigation or by an agency
conducting a lawful national security
intelligence investigation, information
furnished by a confidential source, (E) would
disclose techniques and procedures for law
enforcement investigations or prosecutions .
. . if such disclosure could reasonably be
expected to risk circumvention of the law . .
. .
5 U.S.C. § 552(b)(7) (1988 & Supp. V 1993). Thus, in order to
prevail on an Exemption 7 claim, the government must bear its
burden of demonstrating for every record that: (1) the
22
information the FBI seeks to conceal was "compiled for law
enforcement purposes," and (2) disclosure would produce one of
the specified harms enumerated in the statute. United States
Dep't of Justice v. Landano, U.S. , , 113 S. Ct. 2014,
2019 (1993); Federal Bureau of Investigation v. Abramson, 456
U.S. 615, 622, 102 S. Ct. 2054, 2059-60 (1982).
A.
In reviewing the government's withholding of records
under any subsection of § 552(b)(7), the district court must
first be satisfied that those materials qualify as "records or
information compiled for law enforcement purposes."3 There is
disagreement among the courts of appeals about how to make this
threshold determination.
3
While the focus of this case is upon documents compiled for
putative criminal investigations, we note that "records or
information compiled for law enforcement purposes" are not
limited to records or information compiled for criminal
investigations. While criminal investigation is certainly one
law enforcement purpose, there are also additional law
enforcement purposes which are not necessarily criminal in
nature. Indeed, the statute itself treats both "criminal
investigation[s]" and "national security intelligence
investigation[s]" as subsets of law enforcement records in
Exemption 7(D). Thus, other agencies that have some law
enforcement duties, such as the Equal Employment Opportunity
Commission in investigating violations of Title VII, the Internal
Revenue Service in enforcing the tax laws, and the National Labor
Relations Board in conducting unfair labor practice proceedings,
may also justify withholding information under Exemption 7. Note,
however, that an agency whose principal function is not law
enforcement bears the burden of proving that "the records it
seeks to shelter under Exemption 7 were compiled for adjudicatory
or enforcement purposes." Stern v. FBI, 737 F.2d 84, 88 (D.C.
Cir. 1984); see also infra at [typescript at 26-28]
(discussing Committee on Masonic Homes v. NLRB, 556 F.2d 214,
218-19 (3d Cir. 1977)).
23
The government suggests that we follow the courts who
have adopted a per se rule, under which all records compiled by
law enforcement agencies such as the FBI qualify as "records
compiled for law enforcement purposes" pursuant to the (b)(7)
exception. See Jones v. Federal Bureau of Investigation, 41 F.3d
238, 245-46 (6th Cir. 1994) (determining that the per se rule
comports more fully with the policies Congress enacted in FOIA);
Ferguson v. FBI, 957 F.2d 1059, 1070 (2d Cir. 1992) (district
court should not engage in factual inquiry as to legitimacy of
law enforcement purpose); Curran v. Department of Justice, 813
F.2d 473, 475 (1st Cir. 1987) ("[T]he investigatory records of
law enforcement agencies are inherently records compiled for 'law
enforcement purposes' within the meaning of Exemption 7."
(citation omitted)); Kuehnert v. FBI, 620 F.2d 662, 666 (8th Cir.
1980) (a showing of law enforcement purpose of a particular
investigation is not a precondition to FBI's invocation of
Exemption 7).
In contrast, the Court of Appeals for the District of
Columbia Circuit has rejected a per se rule, and adopted a two-
part test that must be satisfied in order for a law enforcement
agency to pass the Exemption 7 threshold. See Pratt v. Webster,
673 F.2d 408 (D.C. Cir. 1982). In Pratt, the court described the
two "critical conditions" of what has been named the "rational
nexus" rule:
First, the agency's investigatory activities
that give rise to the documents sought must
be related to the enforcement of federal laws
or to the maintenance of national security.
To satisfy this requirement of a "nexus," the
24
agency should be able to identify a
particular individual or a particular
incident as the object of its investigation
and the connection between that individual or
incident and a possible security risk or
violation of federal law. The possible
violation or security risk is necessary to
establish that the agency acted within its
principal function of law enforcement, rather
than merely engaging in a general monitoring
of private individuals' activities. . . .
Second, the nexus between the
investigation and one of the agency's law
enforcement duties must be based on
information sufficient to support at least "a
colorable claim" of its rationality. . . .
Such an agency, in order to carry out its
functions, often must act upon unverified
tips and suspicions based upon mere tidbits
of information. A court, therefore, should
be hesitant to second-guess a law enforcement
agency's decision to investigate if there is
a plausible basis for its decision. Nor is
it necessary for the investigation to lead to
a criminal prosecution or other enforcement
proceeding in order to satisfy the "law
enforcement purpose" criterion. . . .
Thus, . . . [i]n order to pass the FOIA
Exemption 7 threshold, such an agency must
establish that its investigatory activities
are realistically based on a legitimate
concern that federal laws have been or may be
violated or that national security may be
breached. Either of these concerns must have
some plausible basis and have a rational
connection to the object of the agency's
investigation.
Pratt, 673 F.2d at 420-21 (emphasis in the original) (citations
and footnotes omitted). See also King, 830 F.2d at 229 (FBI
records are not deemed law enforcement records simply by virtue
of the function that the FBI serves, but rather the two-prong
Pratt test must be applied to determine the threshold showing
25
requisite). The Court of Appeals for the Ninth Circuit has also
adopted a "rational nexus" standard. See, e.g., Wiener, 943 F.2d
at 985 ("No withholding under any of the exemptions listed in
section 552(b)(7) is valid unless the withholding agency
establishes a '"rational nexus" between its law enforcement
duties and the document for which Exemption 7 is claimed.'"
(citations omitted)).
We have not directly ruled on what must be established
in order to meet the threshold requirement. We find, however,
some guidance from our prior precedents. In Committee on Masonic
Homes v. NLRB, 556 F.2d 214 (3d Cir. 1977), an employer had
requested from the National Labor Relations Board ("NLRB") all
union authorization cards that had been submitted by the union as
evidence of support. The NLRB claimed that the cards were exempt
from disclosure under Exemption 7. The NLRB argued that it had
an enforcement purpose -- enforcing the National Labor Relations
Act -- for which the union authorization cards under question
were compiled. We held that under the circumstances of that
case, there was no "law enforcement purpose" pursuant to
Exemption 7, because "'law enforcement purposes' must relate to
some type of formal proceedings, and one that is pending." Id. at
219; see also Ferri, 645 F.2d at 1223 ("[T]he 'investigatory
records' exemption is to be construed literally. It contemplates
files compiled with a specific, formal proceeding or
investigation in mind.").
The precedential force of Masonic Homes can be
questioned for two reasons. First, we decided Masonic Homes
26
prior to the 1986 Amendment to FOIA that replaced the language
"investigatory records compiled for law enforcement purposes,"
with the present language of § 552(b)(7), "records or information
compiled for law enforcement purposes." This amended language
can appear to have been intended to broaden the exemption's
reach. We learn from the legislative history, however, that
Congress' action was not intended to modify the threshold showing
of law-enforcement purpose. The report of the Senate Judiciary
Committee on S. 774, 98th Cong., 1st Sess. (1983), stated that
the amendment "does not affect the threshold question of whether
'records or information' withheld under (b)(7) were 'compiled for
law enforcement purposes.' This standard would still have to be
satisfied in order to claim the protection of the (b)(7)
exemption." S. Rep. No. 221, 98th Cong., 1st Sess. 23 (1983),
reprinted in relevant part in, 132 Cong. Rec. H9466 (daily ed.
Oct. 8, 1986); see King, 830 F.2d at 229 n.141 (providing
detailed legislative history of the 1986 Amendment to Exemption
7). Accordingly, we can be assured that our holding in Masonic
Homes has not been undercut by legislative fiat.
Second, because the withholding agency in Masonic Homes
was the NLRB, it is unclear whether our conclusion that "law
enforcement purposes" must relate to some type of formal
enforcement proceeding, has an application to an agency whose
principal function is criminal law enforcement. See Pratt, 673
F.2d at 421 n.33 ("We believe that the Third Circuit's conclusion
that '"law enforcement purposes" must relate to some type of
enforcement proceeding, and one that is pending,' has no
27
application to an agency whose principal function is criminal law
enforcement. Therefore, we also dismiss the First Circuit's
concern . . . that the need to shield legitimate law enforcement
efforts from harmful FOIA disclosures might lead to frivolous
prosecutions." (citations omitted)).
While we are not bound to extend our holding in Masonic
Homes to a law enforcement agency such as the FBI, at minimum,
our statements in Masonic Homes indicate a rejection of a per se
rule. Accordingly, we must devise a test to apply to law
enforcement agencies that requires the agency to sustain its
burden of establishing the threshold element of Exemption 7.
We believe the preferable test is an adaptation of the
two-prong "rational nexus" test articulated by the Court of
Appeals for the District of Columbia Circuit in Pratt. Under
this test, the government must identify a particular individual
or incident as the object of the investigation and specify the
connection of the individual or incident to a potential violation
of law or security risk. The agency must then demonstrate that
this relationship is based upon information "sufficient to
support at least a 'colorable claim' of its rationality." Pratt,
673 F.2d at 421.
The D.C. Circuit has explained that the threshold
showing required by Pratt is an "objective" one, and "suffices to
establish the exemption only if it is unrefuted by persuasive
evidence that in fact another, nonqualifying reason prompted the
investigation," such as where an investigation is conducted "for
28
purposes of harassment." Shaw v. FBI, 749 F.2d 58, 63-64 (D.C.
Cir. 1984).
In the present case, the FBI submitted a description of
the nine files pertaining to Davin's FOIA request in the Moran
declaration, as quoted above. See supra at [typescript at 3-
5]. The declaration clearly identifies David Lasser and the WAA
as the targets of the investigations, thereby fulfilling the
first prong of the Pratt test. The declaration, however, plainly
failed to specify the connection between Lasser and the WAA, and
the possible security risk or violation of federal law.
As a preliminary matter, the declaration only contained
a general description of the files and did not describe the nexus
between each document and a particular investigation. Indeed,
the government failed even to identify the investigations to
which each document in the nine FBI files pertained.
Furthermore, the declaration does little more than cite
to the criminal statutes, executive orders, and public laws
pursuant to which the investigations were undertaken, "presumably
indicating that somewhere within the parameters of these general
provisions were criminal acts that the FBI suspected [Lasser and
the WAA] of committing." King, 830 F.2d at 230. While the
second prong inquiry is "necessarily deferential" to the agency,
Pratt, 673 F.2d at 421, we believe that the simple recitation of
statutes, orders and public laws is an insufficient showing of a
rational nexus to a legitimate law enforcement concern. The FBI
has failed to meet its burden in the district court because
neither Agent Moran's declaration nor his testimony provide any
29
detail concerning the supposed law enforcement activities that
generated each of the documents in the Vaughn index. The FBI
must come forward with additional evidence to support its claim
of a law enforcement purpose.
In addition, we note that even the skeletal
descriptions of the files provided by Agent Moran cast doubt on
the government's assertion that the files were related to a law
enforcement purpose: while the nine files cover investigations
spanning over forty years, the government has not pointed to a
single arrest, indictment or conviction.
We acknowledge that the Supreme Court has indicated
there is no requirement for the compilation of information to be
effected by a specific time. See John Doe Agency v. John Doe
Corp., 493 U.S. 146, 153, 110 S. Ct. 471, 476 (1989). Nor do we
require evidence of an actual indictment or conviction in order
for the government to fulfill its burden of proving that its
investigation pertained to a law enforcement purpose. However,
on the record before us, the government must allege additional
specific facts that demonstrate "the agency was gathering
information with the good faith belief that the subject may
violate or has violated federal law," and was not "merely
monitoring the subject for purposes unrelated to enforcement of
the law." Lamont v. Department of Justice, 475 F. Supp. 761, 773
(S.D.N.Y. 1979) (citing, inter alia, Masonic Homes, 556 F.2d at
219). If the government's investigation did not ultimately
result in any arrests, indictments or other proceedings, then the
government may sustain its burden under § 552(b)(7) by explaining
30
why it decided not to follow through with the investigations. The
Vaughn index in this case, however, provides Davin with no
information whatsoever about the initiation, breadth or results
of the investigations. The paucity of information about these
lengthy investigations casts doubt on the government's assertion
that withheld documents pertain to law enforcement
investigations, and has made impossible Davin's challenge to the
government's claim.
The Court of Appeals for the Ninth Circuit was faced
with similar circumstances in Wiener, where the FBI refused to
release files to a historian concerning political investigations
of John Lennon. In that case, the FBI claimed Exemption 7,
alleging that:
John Lennon was under investigation for
possible violations of the Civil Disobedience
Act of 1968, 18 U.S.C. § 231 (1988), and the
Anti-Riot Act, 18 U.S.C. § 2101 (1988),
because of his association with a radical
group known as the Election Year Strategy
Information Center (EYSIC).
Wiener, 943 F.2d at 985-96. The court rejected the FBI's claims,
holding that:
The Civil Disobedience Act and the Anti-Riot
Act are very broad criminal statutes,
prohibiting a wide variety of conduct.
Citations to these statues do little to
inform Wiener of the claimed law enforcement
purpose underlying the investigation of John
Lennon. Without providing Wiener with
further details of the kinds of criminal
activity of which John Lennon was allegedly
suspected, Wiener cannot effectively argue
that the claimed law enforcement purpose was
in effect a pretext.
31
Id. at 986.
The statutes that criminalize treason, misprision of
treason, recruiting for service against the United States, and
the other criminal activities that the FBI was "investigating"
are no less broad than the Civil Disobedience Act or the Anti-
Riot Act. The FBI's blanket references to these statutes do not
adequately inform Davin of the claimed law enforcement purposes
of the FBI investigation of the WAA and Lasser. Accordingly, on
remand, the government must provide additional facts regarding
the law enforcement investigations implicated by each of the
documents withheld under any (b)(7) exemption.
B.
If, on remand, the district court concludes that the
government has demonstrated a rational nexus between its law
enforcement duties and the particular document or portions
withheld, then the district court will reach the specific
exemptions of subsections of § 552(b)(7). The government asserts
that information was exempt from disclosure under subsection
(7)(C) Unwarranted Invasion of Personal Privacy, (7)(D)
Confidential Source Material, and (7)(E) Investigative Techniques
and Procedures. We will address each exemption seriatim.
1. § 552(b)(7)(C)
Exemption 7(C) permits withholding of records or
information compiled for law enforcement purposes to the extent
that production "could reasonably be expected to constitute an
32
unwarranted invasion of personal privacy." 5 U.S.C.
§552(b)(7)(C). Agent Moran identified nine privacy interests
that implicated Exemption 7(C): (1) the identities or identifiers
of FBI personnel; (2) the names and identifying data of financial
institution or commercial enterprise employees; (3) identities of
non-FBI federal government employees; (4) names and identifying
data of non-federal government law enforcement officers; (5)
names and identifying data of state and local government
employees; (6) names and identifying data pertaining to third
parties who were of investigative interest; (7) names and
identifying data for third parties who were merely mentioned; (8)
file numbers related to third parties; and (9) names and
identifying information of individuals who provided information
to the FBI.
We set forth the standards for evaluating a 7(C) claim
in Lame I, where we held:
The Section 7(C) privacy exemption does not
prohibit all disclosures which invade
personal privacy, but only disclosures which
entail an unwarranted invasion of personal
privacy . . . . "Exemption 7(C)'s protection
of personal privacy is not absolute . . . .
[T]he proper approach to [a] request under a
privacy based exemption such as 7(C) is a de
novo balancing test, weighing the privacy
interest and the extent to which it is
invaded on the one hand, against the public
benefit that would result from disclosure, on
the other."
Lame I, 654 F.2d at 922-23 (quoting Ferri, 645 F.2d at 1217). See
also McDonnell, 4 F.3d at 1254.
33
a. Privacy Interests
In United States Dep't of Justice v. Reporters Comm.
for Freedom of the Press, 489 U.S. 749, 109 S. Ct. 1468 (1989),
the Supreme Court provided guidance on the proper understanding
of "privacy interest." Quoting from Webster's dictionary, the
Court stated that information may be classified as "private" if
it is "intended for or restricted to the use of a particular
person or group or class of persons: not freely available to the
public." Id. at 763-64, 109 S. Ct. at 1477 (footnote omitted).
We recognized in Landano v. United States Dep't of Justice, 956
F.2d 422, 426 (3d Cir. 1992), vacated in part on other grounds
and remanded, U.S. , 113 S. Ct. 2014 (1993), "that
individuals involved in a criminal investigation -- including
suspects, witnesses, interviewees, and investigators -- possess
privacy interests, cognizable under Exemption 7(C), in not having
their names revealed in connection with disclosure of the fact
and subject matter of the investigation." Id. at 426 (citation
omitted). Suspects, interviewees and witnesses have a privacy
interest because disclosure may result in embarrassment or
harassment. Id. Law enforcement personnel involved in a
criminal investigation also have a cognizable privacy interest
under FOIA. Id. (citing Patterson, 893 F.2d at 601).
Accordingly, the individuals involved in the
investigations of David Lasser and the WAA have a privacy
interest in not having their identities disclosed.4 We note that
4
We note again the colloquy between Agent Moran and counsel for
Davin, in which Agent Moran concedes that certain information was
34
for some, the privacy interest may become diluted by the passage
of time, though under certain circumstances the potential for
embarrassment and harassment may also endure. Id. at 427. Thus,
when balancing the private and public interests, the district
court must determine the relative strength of an individual's
privacy interest.
The government and Davin dispute whether death
extinguishes an individual's privacy rights under FOIA, and if
so, whether the government is required to determine if the
individual is still alive. The first issue has been settled by
our holding in McDonnell, where we expressly announced that under
§ 552(b)(7)(C), "[p]ersons who are deceased have no privacy
interest in nondisclosure of their identities." McDonnell, 4
F.3d at 1257. Furthermore, with regard to a claimed privacy
exemption under § 552(b)(6), the exemption from disclosure of
personnel and medical files, we directed the government to
determine whether the subject of a FOIA request was deceased or
living. Id. at 1254. While we recognize that the standard for
evaluating privacy interests pursuant to Exemption 7(C) is
somewhat broader that the standard for Exemption 6, see Reporters
Committee, 489 U.S. at 756, 109 S. Ct. at 1473, we nonetheless do
redacted pursuant to Exemption 7(C) "[b]ecause some of the
information would indicate possibly a particular area of the
country" from where an informant was operating, which might lead
the requester to the informant's identity. App. at 618. See
supra note 2. While the FBI may assert individuals' privacy
interest in not having their identities disclosed, the privacy
interest only extends to the individuals' names and street
addresses, which need not be revealed, but not to cities,
occupations, or other "identifiers."
35
not perceive legitimate grounds for distinguishing between (b)(6)
and (b)(7)(C) on this issue.
The government voices a concern, however, that to
require the FBI to determine whether all of the hundreds of
individuals who are named in the files requested by Davin are
alive "would place a great, if not intolerable burden, on the
FBI." Government Brief at 33. We are mindful that the Supreme
Court has recognized a congressional intent "to provide
'"workable" rules' of FOIA disclosure." Landano, U.S. at ,
113 S. Ct. at 2023 (citations omitted). Accordingly, we hold
that it is within the discretion of the district court to require
an agency to demonstrate that the individuals upon whose behalf
it claims the privacy exemption are, in fact, alive. In
exercising its discretion, the district court should consider
such factors as the number of named individuals that must be
investigated, and the age of the requested records. If the
number of individuals is not excessive, the agency could be
required to determine whether the individuals are alive before
asserting a privacy interest on their behalf. However, after a
sufficient passage of time -- such as in our case where the
pertinent investigations began over sixty years ago (and in
McDonnell where the investigation began over seventy years before
the FOIA request) -- the probability of the named individuals
remaining alive diminishes. Under such circumstances, it would
be unreasonable for the district court not to assume that many of
the individuals named in the requested records have died, thereby
negating a privacy interest unless proving otherwise.
36
b. Public Benefit
The Reporters Committee decision also guides us in
identifying the relevant "public benefits" to be weighed against
the asserted privacy interests. The Supreme Court declared that:
whether disclosure of a private document
under Exemption 7(C) is warranted must turn
on the nature of the requested document and
its relationship to "the basic purpose of the
Freedom of Information Act 'to open agency
action to the light of public scrutiny'"
Department of Air Force v. Rose, 425 U.S.
[352], 372, 96 S. Ct. [1592], 1604 [(1976)],
rather than on the particular purpose for
which the document is being requested.
Reporters Committee, 489 U.S. at 772, 109 S. Ct. at 1481.
Accordingly, "[o]fficial information that sheds light on an
agency's performance of its statutory duties falls squarely
within that statutory purpose. That purpose, however, is not
fostered by disclosure of information about private citizens that
is accumulated in various government files but that reveals
little or nothing about an agency's own conduct." Id. at 773,
109 S. Ct. at 1481-82.
Davin asserts a strong public interest in illuminating
the government's operations and exposing possible misconduct with
regard with to the FBI's investigation of the WAA and Lasser. We
agree that the information requested by Davin appears to fall
within the statutory purpose of FOIA in informing the citizenry
about "what their government is up to." Id. at 773, 109 S. Ct.
at 1481 (quoting EPA v. Mink, 410 U.S. 73, 80, 93 S. Ct. 827, 832
(1973) (emphasis in original) (Douglas, J. dissenting)). The
37
district court must determine, however, whether that purpose is
fostered by disclosure of the identities of private citizens.
We are cognizant of the government's stated
justification for withholding: (1) names and identifying data of
non-federal law enforcement officers because "disclosure of their
identities would inhibit the cooperation and exchange of
information between law enforcement officials and the FBI, and
would suppress a vital source of information that the FBI relies
upon in order to pursue investigative interests against alleged
criminals, suspects or subjects of investigations," App. at 78;
and (2) identities of third parties who furnished information to
the FBI because disclosure "would seriously impede the FBI's
ability to gather future information." App. at 81. We held in
McDonnell that "the Government's asserted interest in assuring
future cooperation of witnesses with FBI investigations is not a
valid reason for refusing to disclose information under Exemption
7(C)." McDonnell, 4 F.3d at 1256. Accordingly, neither the FBI
nor the district court may consider this factor in considering
the public benefit of withholding the information.
c. Balancing Private and Public Interests
Davin and the government disagree over how to perform
the balancing between private and public interests. Davin refers
us to our decision in Lame I, where we emphasized that "[t]here
can be no question that the 7(C) balancing test must be conducted
with regard to each document, because the privacy interest and
the interest of the public in disclosure may vary from document
38
to document. Indeed, these interests may vary from portion to
portion of an individual document." Lame I, 654 F.2d at 923
(footnote omitted). In that case, we concluded that the FBI's
refusal to disclose most of the witness interview transcripts
could not be justified under Exemption 7(C), without explaining
why the interviews would result in embarrassment or harassment
either to the individuals interviewed or to third parties. Id.
at 928.
The government, in contrast, notes that the Supreme
Court in Reporters Committee permitted agencies to exempt certain
records categorically, as opposed to on a document-by-document
basis. In Reporters Committee, the Court stated that
"categorical decisions may be appropriate and individual
circumstances disregarded when a case fits into a genus in which
the balance characteristically tips in one direction," 489 U.S.
at 776, 109 S. Ct. at 1483, and concluded that "rap sheet"
information is categorically exempt under § 522(b)(7)(C) because
the release of such information always constitutes an unwarranted
invasion of privacy. Id. at 780, 109 S. Ct. at 1485.
While we believe that in the usual circumstance, an
individual's privacy interest in not having his or her identity
revealed in the context of a criminal or national security
investigation overrides the public benefit, we will refrain from
extending Reporters Committee to require a per se rule. We
similarly did not apply the categorical balancing approach in
Landano, when we determined that FBI informants and agents had a
privacy interest in not having their names disclosed in
39
connection with a criminal investigation, which outweighed the
asserted public interest (not recognized by FOIA) in discovering
wrongdoing by a state agency. Landano, 956 F.2d at 430-31.
Accordingly, while we do not comment on the proper
result of the balancing in this matter, we find it important to
note that the government must conduct a document by document
fact-specific balancing. Agent Moran dispatched all of the 7(C)
exemptions claimed in the 9,270 pages withheld by stating that in
each instance where information was withheld:
it was determined that individual privacy
interests were not outweighed by any public
interest. When the documents at issue were
reviewed . . . the passage of time and any
effect on the third party privacy interests
were considered. It was determined that the
privacy interests are stronger now than they
were when the records were created. To
reveal names in the context of these records
could reasonably be expected, due to the type
of the investigation to put the lives of
individuals in danger, cause embarrassment
and humiliation, and would therefore, be an
unwarranted invasion of privacy. The
disclosure of this information would not
contribute significantly to the public's
understanding of the operations or activities
of the Government.
App. at 75. This explanation stands in stark contrast to
McDonnell, where "[t]he Government set forth in an affidavit
specific reasons why these persons have a privacy interest in
nondisclosure of their identities." McDonnell, 4 F.3d at 1255.
Agent Moran's affidavit and testimony, and consequently, the
district court's findings, did not link the (b)(7)(C) exemption
to any of the individual documents. On remand, the government
40
must provide the district court with a more detailed balancing
effort.
2. § 552(b)(7)(D)
Exemption 7(D) excepts from disclosure records or
information compiled for law enforcement purposes, but only to
the extent that the production:
could reasonably be expected to disclose the
identity of a confidential source, . . .
which furnished information on a confidential
basis, and, in the case of a record or
information compiled by criminal law
enforcement authority in the course of a
criminal investigation or by an agency
conducting a lawful national security
intelligence investigation, information
furnished by a confidential source.
5 U.S.C. § 552(b)(7)(D). See also McDonnell, 4 F.3d at 1257.
The Supreme Court recently set forth the standards for
withholding a document under Exemption 7(D) in Landano. The
Supreme Court explained that a source is considered a
"confidential source" only "if the source `provided information
under an express assurance of confidentiality or in circumstances
from which such an assurance could reasonably be inferred.'"
Landano, U.S. at , 113 S. Ct. at 2019-20 (quoting H.R. Conf.
Rep. No. 1200, 93rd Cong., 2d Sess. 13 (1974), reprinted in 1974
U.S.C.C.A.N. 6285, 6291.
The government asserts that eight categories of
information pertinent to Davin's request fall under Exemption
7(D): (1) internal source symbols and code names assigned to
confidential informants; (2) internal symbol numbers which
41
pertained to informants; (3) information provided by sources
under an express promise of confidentiality; (4) temporary source
symbols; (5) names and identifying data of third parties who
provided information and were interviewed under an implied
promise of confidentiality; (6) information supplied by
institutions under an implied promise of confidentiality; (7)
identities of non-federal law enforcement officers who provided
information under an implied promise of confidentiality; and (8)
information provided by local or state bureaus or agencies under
an implied promise of confidentiality.
In Landano, the Supreme Court reemphasized that the
government bears the burden of establishing that Exemption 7(D)
applies. Landano, U.S. at , 113 S. Ct. at 2019. The Court
embarked on its discussion of implied assurances of
confidentiality after noting that the FBI in that case could not
attempt to demonstrate that it made explicit promises of
confidentiality, because "[t]hat sort of proof apparently often
is not possible: The FBI does not have a policy of discussing
confidentiality with every source, and when such discussions do
occur, agents do not always document them." Id. at , 113 S.
Ct. at 2020. We glean from these remarks that if an agency
attempts to withhold information under Exemption 7(D) by express
assurances of confidentiality, the agency is required to come
forward with probative evidence that the source did in fact
receive an express grant of confidentiality. Proof could take
the form of declarations from the agents who extended the express
grants of confidentiality, contemporaneous documents from the FBI
42
files reflecting the express grants of confidentiality, evidence
of a consistent policy of expressly granting confidentiality to
certain designated sources during the relevant time period, or
other such evidence that comports with the Federal Rules of
Evidence.
Rather than provide such proof, the government submits
Agent Moran's declaration that asserts an alleged policy of the
FBI to grant express assurances of confidentiality on a routine
basis.5 The declaration fails to cite any written policy or
5
Agent Moran stated in his declaration:
Exemption (b)(7)(D) was asserted to withhold
information received from a source under an
express promise that it would be held in
confidence, as well as information that could
lead to the source's identity. These sources
are symbol numbered sources, code name
sources, or individuals who specifically
requested confidentiality . . . .
As a matter of policy and practice, all
symbol numbered informants or code names
sources are given express assurances of
confidentiality. Illustrative of this
express assurance of confidentiality is the
manner in which such information is treated
within the FBI. The identities of such
sources are not referred to by the true name
in any FBI document which records the
information they furnished. The identities
of these sources are known to very few FBI
employees and are available only on a "need
to know" basis. These special precautions
are needed because of the sensitive nature of
the information being provided and harm that
may befall these sources if their identities
were revealed. The manner in which the FBI
actually obtains information from these
sources is also demonstrative of the express
assurance of confidentiality under which it
is received. The information is received
only under conditions which guarantee the
43
provide any assurance that the alleged policy has been applied
consistently over the years, and in this specific case. There is
no proof that these particular sources received express grants of
confidentiality.
The government argues that we indicated in McDonnell
that courts may rely upon agency declarations in determining
whether a source has received an express assurance of
confidentiality. McDonnell, 4 F.3d at 1258. In that case, we
held that the district court did not err in adopting the
magistrate judge's conclusion that the identity of and
information provided by two specific sources were exempt from
disclosure under (b)(7)(D) when the declaration stated one source
was given express assurance of confidentiality and the other
source was assigned a symbol source number and was never referred
to by name in the file. Id. The government also cites Wiener,
943 F.2d at 986, where the Court of Appeals for the Ninth Circuit
held that the FBI "need only establish the informant was told his
name would be held in confidence."
These holdings do not support the government's
assertion that it has sufficiently established that sources
received express grants of confidentiality. In McDonnell, the
agent provided information regarding the circumstances
contact will not be jeopardized. Derivative
ensuing investigations attributable to a
symbol numbered source have also been denied
as disclosure of such would reveal the
identity of the source.
App. at 87-88.
44
surrounding the interviews in which express grants of
confidentiality were given to the two specific sources in
question. McDonnell, 4 F.3d at 1257-58.6 No such specifics are
provided in the Moran declaration in this case. Furthermore,
while the Wiener court required the FBI to "establish the
informant was told his name would be held in confidence," the FBI
has failed to do so in this case since the government did not
present any evidence of its alleged policy or any evidence that
an express grant of confidentiality was in fact given to any
particular source.
On remand, the government, if it pursues an exception
for express promises of confidentiality, must produce evidence of
6
In McDonnell, we held that the district court did not err in
adopting the magistrate judge's conclusion that the identity of a
certain source was exempt from disclosure under Exemption 7(D),
when, based on Agent Llewellyn's declaration, the magistrate
judge "determined that the Government gave an express assurance
of confidentiality to an informant named in the files . . . . The
identity of this source was considered so sensitive that he or
she was assigned a symbol source number and was never referred to
by name in the file." McDonnell, 4 F.3d at 1258. While these
statements may appear to imply that the FBI only pointed to its
symbol source number policy to show that the sources received
express grants of confidentiality, it is clear from reading
McDonnell that the agent's declaration in fact provided detailed
information regarding the circumstances of the express grants of
confidentiality to the two specific sources involved in the
investigation. We wrote: "At oral argument on the parties'
cross-motions for summary judgment, the magistrate judge ordered
the FBI to submit a declaration regarding the circumstances
surrounding the interviews of third parties who were members of
the public. This order was in response to two letters McDonnell
has submitted from interviewees stating that they had not
received either express or implied assurances of confidentiality
when the FBI interviewed them." Id. at 1257 (emphasis added). In
response to this directive, the FBI submitted Agent Llewellyn's
declaration, which presumably, fulfilled the magistrate judge's
order.
45
its alleged policy and practice of giving all symbol numbered
informants or code name sources express assurances of
confidentiality, evidence that the policy was in force throughout
the forty years spanned by the documents at issue, and evidence
that the policy was applied to each of the separate
investigations and in each case in which a document or portion
has been withheld.
In addition to claiming that sources were given express
promises of confidentiality, the government also asserts that
some sources gave the FBI information under "an implied promise
of confidentiality." App. at 89. In Landano, the Supreme Court
explained that:
the Government is not entitled to a
presumption that a source is confidential
within the meaning of Exemption 7(D) whenever
the source provides information to the FBI in
the course of a criminal investigation.
More narrowly defined circumstances
however, can provide a basis for inferring
confidentiality. For example, when
circumstances such as the nature of the crime
investigated and the witness' relation to it
support an inference of confidentiality, the
Government is entitled to a presumption.
Landano, U.S. at , 113 S. Ct. at 2024. In that case, the
Court noted, but did not decide, that the sources at issue who
were witnesses to a gang-related shooting of a police officer,
might well be presumed to have spoken to the FBI on condition of
anonymity based on the circumstances under which they gave their
information. Id. at , 113 S. Ct. at 2023.
46
Moran indicated that all the persons who provided
information under an implied promise of confidentiality were
individuals who "were past or present members of the WAA;
individuals who, through their employment, were in a position to
provide detailed information; or private citizens who attended
WAA meetings." App. at 90. In its brief, the government
asserts:
[T]he Alliance was suspected of being a
Communist front and engaging in seditious
activities. Given the nature of the
activities alleged, it could be presumed that
the Alliance would take measures to shield
them from law enforcement. Under these
circumstances, sources of insider information
operated under an implied assurance of
confidentiality. The same holds true for
individuals who reported matters discussed at
Workers Alliance meetings. The Alliance had
various chapters or branches located
throughout the country. Individuals who
attended meetings and then reported to the
FBI also did so under an implicit grant of
confidentiality. These individuals were
exposed to the risk of retaliation by
reporting on Alliance business to the FBI,
particularly if they were known to other
members of the local branch. In short,
sources providing detailed information
concerning the extent of Communist control of
labor organization and possible treasonous
activities of that organization would have
been concerned "that exposure would bring
harassment, ridicule or retaliation." Keys
v. Dep't of Justice, 830 F.2d [337,] 345-46
[(D.C. Cir. 1987)].
Government's Brief at 41-42.
We do not believe that this recitation sufficiently
describes circumstances that can provide a basis for inferring
confidentiality. The FBI has not offered evidence that any
47
member of the WAA engaged in acts of violence or harassment, or
threatened to do so. In light of the fact the government has
access to documents concerning the WAA spanning a period of forty
years, we assume that the government would be able to provide
examples illustrating its contention that the sources allegedly
were afraid of other WAA members. The government's citation to
Keys for the proposition that the sources sought implied
assurances of confidentiality actually emphasizes the distinction
between the circumstances of the two cases: Keys involved a
murder investigation by a foreign operative in which a source
would have good reason to be afraid "lest he meet the same fate."
Keys, 830 F.2d at 346.
The government has provided the court with generalized
allegations that the WAA was suspected of "being a Communist
front" and "engaging in seditious activities." In attempting to
prove that the sources received an implied promise of
confidentiality, the FBI relies heavily on the presumption that
people who speak to the FBI necessarily require confidentiality.
App. at 90-91. The Supreme Court rejected such a presumption in
Landano. U.S. at , 113 S. Ct. at 2022.
Recently in McDonnell, we were faced with a requester
seeking documents concerning information supplied by an alleged
confidential source regarding involvement of "a suspicious or
radical" member of the crew of a ship, who the FBI suspected was
involved with a suspicious fire aboard the ship. McDonnell, 4
F.3d at 1258. The government asserted that the information was
exempt because these circumstances established that the source
48
gave his information under an implied promise of confidentiality.
Id. We held that the government did not meet it burden under
Landano and remanded for further proceedings consistent with
principles articulated by the Supreme Court. In the case at
hand, the FBI has not even shown that the persons being
investigated were suspected of involvement in violent acts.
Accordingly, as we held in McDonnell, 4 F.3d at 1262, on remand,
the government must provide a further detailed factual recitation
in order to sustain its burden of showing circumstances that
provide a basis for inferring confidentiality.
As an added note, we mention the last clause of
§552(b)(7)(D), which exempts from disclosure the information that
a confidential source provides in a criminal or national security
investigation. While not directly before us on this appeal, we
do not foreclose the possibility that the FBI could withhold more
information than is justified to protect the identity of
confidential sources, assuming, of course, the government
adequately demonstrates that the information relates to a
criminal or national security investigation.
3. § 552(b)(7)(E)
The FBI has withheld documents and portions of
documents under Exemption 7(E), which allows an agency to
withhold records and information for law enforcement purposes
that "would disclose techniques and procedures for law
enforcement investigations or prosecutions." 5 U.S.C.
§552(b)(7)(E). Exemption 7(E) applies to law enforcement records
49
which, if disclosed, would risk circumvention of the law. PHE,
Inc. v. Department of Justice, 983 F.2d 248, 249-50 (D.C. Cir.
1993). This exemption, however, may not be asserted to withhold
"routine techniques and procedures already well-known to the
public, such as ballistic tests, fingerprinting, and other
scientific tests commonly known." Ferri, 645 F.2d at 1224
(citing H.R. Conf. Rep. No. 1200, 93rd Cong., 2d Sess. 12 (1974),
reprinted in 1974 U.S.C.C.A.N. 6285, 6291).
The government asserted this exemption, claiming the
techniques utilized yielded valuable information, and the
disclosure of certain information "would reveal the type of
effective investigative techniques and the relative utility of
these techniques could be diminished." App. at 95. The
government argues that despite the fact that certain law
enforcement techniques, such as the use of informants, may be
well known to the public, disclosure is nevertheless not
warranted where the circumstances surrounding the usefulness of
these techniques is not well known. According to the government,
"the manner in which informants are identified, recruited,
cultivated and handled by the FBI is not well-known," which is
especially true where, as here, "the FBI is investigating an
organization which is believed to be engaging in illegal
activities and has taken measures to shield such subversive
activities from law enforcement." Government Brief at 43. The
government maintains that groups who are suspected of criminal
wrongdoing today may be provided with information as to how the
FBI recruits internal informants, which may aid the groups in
50
detecting informants currently operating within their ranks. Id.
at 43-44.
The government has not offered any proof of these
assertions. If the government wishes to argue that the
information concerning the use of informants in the 1930's is of
such a specialized nature that it is still unknown to the public,
the government must introduce evidence of that fact. Moreover,
if the government submits evidence that specific documents it has
withheld contain secret information about techniques for
recruiting informants, it will have to establish that the release
of this information would risk circumvention of the law. The
speculation provided in the government's brief of political
groups' increased ability to detect informants within their ranks
is not supported by evidence. Accordingly, on remand, the
government must provide the district court with additional facts
to support exempted documents and portions of documents under
Exemption 7(E).
V.
Last, the government asserts that information was
exempt from disclosure under 5 U.S.C. § 552(b)(2), which applies
to matters pertaining solely to the internal personnel rules and
practices of an agency. This exemption pertains to "routine
matters" of "merely internal significance" in which the public
lacks any substantial interest. Department of the Air Force v.
Rose, 425 U.S. 352, 369-70, 96 S. Ct. 1592, 1603 (1976). The
materials claimed to fall within the (b)(2) exemption include the
51
following categories of information: (1) permanent source symbols
or code names assigned to confidential informants; (2) the file
numbers of permanent symbol numbered sources, (3) temporary
source symbols; and (4) administrative data, practices and
procedures. App. at 71-74.
Agent Moran claimed in his declaration that:
Information relative to matters of purely
internal, bureaucratic significance has been
withheld in certain documents as it pertains
to the administrative handling of purely
internal functions and policies of the FBI.
The information is not of obvious importance
in itself; but, if it were released to
plaintiff and combines with other known data,
in a "mosaic" analysis, it could lead to
identification of substantive information in
the file which has been withheld pursuant to
other 5 U.S.C. 552 exemptions. Disclosure of
this type of information would not add to the
public's understanding of the inner workings
of the Government.
Information has also been deleted from a
sample document which relates to FBIHQ
instructions to a field office concerning
agency business. This material relates to
procedures and practices to be followed to
effectively support investigative efforts.
App. at 74.
The government argues that informant codes fall within
the ambit of Exemption (b)(2). We agree. As the Court of
Appeals for the District of Columbia Circuit has noted, "[t]he
means by which the FBI refers to informants in its investigative
files is a matter of internal significance in which the public
has no substantial interest." Lesar v. United States Dep't of
52
Justice, 636 F.2d 472, 485-86 (D.C. Cir. 1980); see also Massey
v. FBI, 3 F.3d 620, 622 (2d Cir. 1993).
However, the description given by the Moran declaration
provided the district court with no information as to the content
of any of the withheld documents or portions of documents.
Accordingly, on remand, the government may assert exemptions
under (b)(2) if the district court is provided with sufficient
factual support for the withholdings.
CONCLUSION
Because the Vaughn affidavit submitted by the
government did not include a specific factual recitation linking
the documents or portions of documents in question with the
claimed FOIA exemptions, the district court was not provided with
an adequate factual basis for its determination. The order of
the district court granting summary judgment to the government
was inappropriate because the government did not sufficiently
"describe the withheld information and the justification for
withholding with reasonable specificity, demonstrating a logical
connection between the information and the claimed exemption[s]."
American Friends, 831 F.2d at 444 (quoting Abbotts, 766 F.2d at
606). Accordingly, we will remand this matter to the district
court for further fact finding7 and conclusions consistent with
the principles articulated in this opinion.
7
Fact finding may take the form of ordering a more detailed
supplemental Vaughn index and public affidavits. See, e.g.,
Wiener, 943 F.2d at 979; King, 830 F.3d at 225; Ferri, 645 F.2d
at 1225. If the district court is still concerned that it is
53
unable to make a responsible de novo determination, it may
proceed with in camera review. 5 U.S.C. § 552 (a)(4)(B). We
have discussed elsewhere the factors to be considered in deciding
whether in camera review is appropriate. See, e.g., Ferri, 645
F.2d at 1225-26; Lame I, 654 F.2d at 921-22.
54