United States Court of Appeals
For the First Circuit
No. 06-1489
DANIEL E. CARPENTER,
Plaintiff, Appellant,
v.
UNITED STATES DEPARTMENT OF JUSTICE, UNITED STATES ATTORNEY FOR
THE DISTRICT OF MASSACHUSETTS,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Morris E. Lasker, U.S. District Judge]
Before
Lipez, Circuit Judge,
Cyr, Senior Circuit Judge,
and Singal,* District Judge.
Malik W. Ghachem for appellant.
Peter D. Keisler, Assistant Attorney General, with whom
Michael Sullivan, United States Attorney, Leonard Schaitman and
Steve Frank, Attorneys, Appellate Staff, Civil Division,
Department of Justice, were on brief for appellees.
December 12, 2006
*
Of the District of Maine, sitting by designation.
SINGAL, District Judge. Plaintiff, Daniel Carpenter
(“Carpenter”), filed a Freedom of Information Act (“FOIA”), 5
U.S.C. § 552 (2006), request with the United States Attorney’s
Office (“USAO”) for the District of Massachusetts requesting
documents that a third party provided to the USAO in connection
with the government’s investigation and prosecution of
Plaintiff’s business activities. This appeal is taken from a
district court order granting summary judgment for Defendants,
the United States Department of Justice and the USAO for the
District of Massachusetts (“the Government”), and thereby denying
Carpenter’s FOIA request. On appeal, Carpenter maintains that
the requested materials are subject to disclosure because the
public interest in disclosure outweighs any privacy interest
maintained in the materials. We affirm the district court’s
order.
I. Background
By letter dated August 18, 2004, Carpenter filed a FOIA
request with the USAO in Boston. Carpenter petitioned for
materials that a third party, John Koresko, Esq. (“Koresko”),
allegedly provided to the USAO in support of the Government’s
prosecution of Carpenter’s business activities.1 According to
1
Prior to the FOIA request, Carpenter was indicted and
subsequently tried on fourteen counts of wire fraud in violation of
18 U.S.C. § 1343 and five counts of mail fraud in violation of 18
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Carpenter, he and Koresko are direct competitors in the field of
welfare benefit plan design and administration. Carpenter
alleges that Koresko provided information and materials to the
USAO, on which his indictment was based, and that he needs the
materials to ensure that Koresko did not provide false or
misleading materials. The FOIA request, therefore, sought to
compel disclosure of “[a]ll documents, correspondence, records or
files provided by or obtained from [Koresko]” that related to
Carpenter’s businesses, welfare plans or criminal prosecution, or
“reflect any conversation with [Koresko].”2
U.S.C. § 1341. On July 27, 2005, a jury found Carpenter guilty on
all counts. The conviction was overturned, however, and a new
trial ordered. In the motion for acquittal, Carpenter argued that
there was insufficient evidence to convict. The district court
found sufficient evidence but granted a new trial on the ground of
prosecutorial misconduct in the closing argument. United States v.
Carpenter, 405 F. Supp. 2d 85, 103 (D. Mass. 2005).
2
Carpenter requested the following materials:
a. All documents, correspondence, records, or files
provided by or obtained from John Koresko, V, Esq.
that refer to, relate to, or reflect (a) Daniel E.
Carpenter; (b) Benistar Property Exchange Trust
Co., Inc.; (c) Benistar, Ltd.; (d) Benistar 419
Plan Services, Inc.; (e) Benistar 419 Plan; (f)
Benistar Admin Services, Inc.; (g) the
investigation leading to United States v.
Carpenter, Criminal No. 04-10029-GAO; or (h) the
case itself after the indictment issued.
b. All documents that refer to, relate to, or
reflect any conversation with John J. Koresko, V,
Esq.
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After several rounds of correspondence and because the
Government failed to respond to the FOIA request within the
twenty-day statutory time limit, 5 U.S.C. § 552(a)(6)(A),
Carpenter filed this FOIA suit on January 28, 2005. The
Government responded to both the FOIA request and the lawsuit by
declining to either confirm or deny the existence of the
requested materials (a “Glomar response”3) and asserting that any
such records would be exempt from disclosure.4 Carpenter moved
3
The “Glomar response” derives its name from a ship, the
Hughes Glomar Explorer, “built (we now know) to recover a sunken
Soviet submarine, but disguised as a private vessel for mining
manganese nodules from the ocean floor.” Bassiouni v. CIA, 392
F.3d 244, 246 (1st Cir. 2004). See generally Phillippi v. CIA, 546
F.2d 1009 (D.C. Cir. 1976).
4
The Executive Office for the United States Attorneys
(“EOUSA”) responded to the FOIA request by stating:
EOUSA can neither confirm nor deny that such records
exist. If in fact, they did exist, all such records as
you have requested cannot be released absent express
authorization and consent of the third party, Mr.
Koresko, proof that he is deceased, or a clear
demonstration that the public interest in disclosure
outweighs the personal privacy interest and that
significant public benefit would result from the
disclosure of the requested records . . . . These records
are also categorically exempt from disclosure pursuant to
sections (b)(6) and (b)(7)(C) of the Freedom of
Information Act, 5 U.S.C. 552.
Although the Government officially continues to refuse to
confirm or deny the existence of any materials or documents
responsive to the FOIA request, both the district court and this
Court have conducted an in camera review of the materials. In
addition, the government referred to “e-mails” in its brief.
(Appellee’s Br. 27.) In short, the arguments presented on appeal
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for summary judgment on June 17, 2005 and the Government cross-
moved for summary judgment on July 1, 2005.5
After conducting an in camera review, the district court
denied Carpenter’s motion for summary judgment and granted the
Government’s cross-motion for summary judgment via an Endorsement
Order.6 The district court held that the materials at issue were
exempt from disclosure under Exemption 7(C) of the FOIA, which
exempts from disclosure “records or information compiled for law
enforcement purposes but only to the extent that” such
information “could reasonably be expected to constitute an
unwarranted invasion of personal privacy.” 5 U.S.C. § 552
(b)(7)(C).
Carpenter filed a timely motion for reconsideration, arguing
that the court had erred in relying upon Quinon v. FBI, 86 F.3d
proceed on the assumption that responsive documents exist. Thus,
this Court’s analysis similarly proceeds based on the premise that
the Government has at least some documents responsive to
Plaintiff’s FOIA request.
5
On June 17, 2005, Carpenter also filed an “emergency” motion
for discovery in his criminal proceeding, seeking the same
documents as those in the FOIA request. United States v. Carpenter,
Crim. No. 04-10029-GAO (Docket # 80). On June 30, 2005, the
district court ordered that the USAO submit the disputed documents
for an in camera review. On February 17, 2006, the court denied
nunc pro tunc the motion for discovery.
6
The district court, however, held the government’s Glomar
reply insufficient where neither national security nor foreign
intelligence was at issue.
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1222 (D.C. Cir. 1996), in reaching its decision. On December 12,
2006, the district court denied Plaintiff’s motion. This appeal
followed.
Our review of the district court’s determination that the
materials are exempt from disclosure is de novo. Church of
Scientology Int’l v. U.S. Dep’t of Justice, 30 F.3d 224, 228 (1st
Cir. 1994). Our discussion begins with a general review of the
FOIA standards and its exemptions.
II. Discussion
The FOIA was intended to expose the operations of federal
agencies “to the light of public scrutiny.” U.S. Dep’t of the Air
Force v. Rose, 425 U.S. 352, 372 (1976); Providence Journal Co.
v. U.S. Dep’t of the Army, 981 F.2d 552, 556 (1st Cir. 1992)
(noting that the FOIA seeks to prevent “the development and
application of a body of ‘secret law’”). The basic policy of
full agency disclosure within the FOIA furthers the right of
citizens to know “what their government is up to,” U.S. Dep’t of
Justice v. Reporters Comm. for Freedom of the Press, 489 U.S.
749, 773 (1989) (quoting EPA v. Mink, 410 U.S. 73, 105 (1973)
(Douglas, J., dissenting)), and promotes an informed citizenry,
which is vital to democracy. NLRB v. Robbins Tire & Rubber Co.,
437 U.S. 214, 242 (1978). Thus, in response to a FOIA request, a
governmental agency must make promptly available to any person
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those materials in the possession of the agency, unless the
agency can establish that the materials fall within one of nine
exemptions. 5 U.S.C. § 552(a)(3).
To effectuate the goals of the FOIA while safeguarding the
efficient administration of the government, the FOIA provides
that certain categories of materials are exempted from the
general requirements of disclosure. Id. § 552(b); Providence
Journal Co., 981 F.2d at 556. The nine FOIA exemptions are to be
construed narrowly, with any doubts resolved in favor of
disclosure. U.S. Dep’t of Justice v. Julian, 486 U.S. 1, 8
(1988); Providence Journal Co., 981 F.2d at 557. The government
bears the burden of proving that withheld materials fall within
one of the statutory exemptions, 5 U.S.C. § 552(a)(4)(B); Orion
Research, Inc., v. EPA, 615 F.2d 551, 553 (1st Cir. 1980), and
district courts are required to make de novo determinations as to
the validity of the asserted exemptions. 5 U.S.C. §
552(a)(4)(B); see also Reporters Comm., 489 U.S. at 755;
Providence Journal Co., 981 F.2d at 556-57.
Exemption 7(C) formed the sole basis for the district
court’s determination that the requested materials need not be
disclosed.
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This exemption permits an agency to withhold records or
information compiled for law enforcement purposes,7 “but only to
the extent that the production of such [materials] . . . could
reasonably be expected to constitute an unwarranted invasion of
personal privacy.” § 552(b)(7)(C). The application of Exemption
7(C) requires the court to balance the privacy interest at stake
in revealing the materials with the public interest in their
release. Reporters Comm., 489 U.S. at 762; Maynard v. CIA, 986
F.2d 547, 566 (1st Cir. 1993).
A. The Privacy Interest
The privacy interest protected by Exemption 7(C) is not a
“cramped” or limited notion of personal privacy. See Reporters
Comm., 489 U.S. at 762-63. Instead, Exemption 7(C) protects a
broad notion of personal privacy, including an individual’s
interest in avoiding disclosure of personal matters. Id. at 762.
This notion of privacy “encompass[es] the individual’s control of
information concerning his or her person,” and “when, how, and to
what extent information about them is communicated to others.”
7
The materials subject to the FOIA request were provided by
Koresko to aid in the investigation and prosecution of Carpenter’s
business activities by the USAO. The USAO, a law enforcement
agency, has established a “rational nexus” between the “activities
being investigated and violations of federal law” and the relevant
documents. See Irons v. Bell, 596 F.2d 468, 472 (1st Cir. 1979).
The record clearly supports, and the parties do not contest, that
the documents were gathered for law enforcement purposes.
-8-
Id. at 789, 764 n.16. The individual, and not the agency in
possession of the records, controls the privacy interest. See
Reporters Comm., 489 U.S. at 763-65; Sherman v. U.S. Dep’t of the
Army, 244 F.3d 357, 363 (5th Cir. 2001) (providing that the
individual controls the privacy interest at stake in FOIA
exemptions).
Furthermore, where the provider of the information or
records is a private individual, “the privacy interest . . . is
at its apex.” Reporters Comm., 489 U.S. at 780; Nat’l Archives &
Records Admin. v. Favish, 541 U.S. 157, 166 (2004). In Reporters
Committee, the Supreme Court pointed to the provisions of the
FOIA allowing the redaction of an individual’s identifying
information and the segregation of exempt portions of the record
in concluding that the “disclosure of records regarding private
citizens, identifiable by name, is not what the framers of the
FOIA had in mind.”8 489 U.S. at 765-66. The central purpose of
the FOIA is to reveal government action, not to expose the
actions of private third parties and their participation in law
enforcement to the public. See id. at 774 (“[T]he FOIA’s central
purpose is to ensure that the Government’s activities be opened
to the sharp eye of public scrutiny, not that information about
8
Specifically, the Supreme Court pointed to Sections
552(a)(2) and 552(b).
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private citizens that happens to be in the warehouse of the
Government be so disclosed.”). With this general understanding
of the privacy interest protected by Exemption 7(C), we turn to
the facts at hand.
Carpenter brought this FOIA action to compel disclosure of
information or records provided by or concerning Koresko in
connection with the Government’s investigation and prosecution of
Carpenter’s business activities. We agree with the district
court that a person need not be the subject of the investigation
to have a substantial privacy interest in maintaining the secrecy
of his involvement with the investigation. See Maynard, 986 F.2d
at 566; Fitzgibbon v. CIA, 911 F.2d 755, 767 (D.C. Cir. 1990).
Rather, precedents suggest that individuals maintain a privacy
interest under the FOIA in their identity as government
informants and in not being positively associated with a criminal
matter. See, e.g., Maynard, 986 F.2d at 566; Fitzgibbon, 911
F.2d at 767.
Although Koresko is not, strictly speaking, a government
informant, his privacy interest is analogous to that of an
informant. This Court has long protected the identities of
witnesses and informants in law enforcement records. Maynard,
986 F.2d at 566 (stating that “FBI agents, support personnel,
confidential sources, and investigatory targets all have
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significant privacy interests in not having their names
revealed”); New England Apple Council v. Donovan, 725 F.2d 139,
142 (1st Cir. 1984); see also Fitzgibbon, 911 F.2d at 767
(“[P]ersons involved in FBI investigations - even if they are not
the subject of the investigation - ‘have a substantial interest
in seeing that their participation remains secret.’”).
While Koresko’s identity is known and Carpenter alleges that
he assisted the Government in its prosecution, it is a further
invasion of Koresko’s protected privacy interest to positively
identify him with a given criminal matter and reveal the records
or information that he provided. See Fitzgibbon, 911 F.2d at 767
(“[E]xemption 7(C) takes particular note of the ‘strong interest’
of individuals, whether they be suspects, witnesses, or
investigators, ‘in not being associated unwarrantedly with
alleged criminal activity.’”). Koresko, as a private individual,
maintains control over information concerning his person and his
involvement with the criminal justice system, and he alone
controls “when, how, and to what extent [that] information” will
be revealed. Reporters Comm., 489 U.S. at 764 n.16.
Carpenter, however, asserts that Koresko has waived any
privacy interest via his alleged involvement in the Government’s
prosecution. Plaintiff bases this contention on a letter from a
Congressman attached to Koresko’s motion to quash a subpoena in
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an unrelated administrative proceeding. The letter stated: “I
understand that Mr. Koresko has been of assistance to your
office, the Boston office of the DOL/EBSA and Assistant U.S.
Attorney Michael Pineault in the Boston office of the United
States Attorney.”9 (Appellant App. 60.) This, at best, tenuous
connection to the Carpenter investigation is insufficient to
waive Koresko’s privacy interest.10 The assertion that Koresko’s
identity as an informant in the Carpenter investigation arguably
can be determined from another source does not terminate his
privacy interest. See L & C Marine Transp., Ltd. v. United
States, 740 F.2d 919, 922 (11th Cir. 1984). That information has
been released to the public domain, especially where the release
is limited, has little bearing on the privacy interest.
Reporters Comm., 489 U.S. at 763-64. Indeed, in modern society
9
In addition, Carpenter points to statements made by
Assistant U.S. Attorney (“AUSA”) Pineault during the final pretrial
conference for Carpenter’s prosecution. AUSA Pineault referenced
that Koresko filed a number of pleadings related to civil disputes
between various individuals and companies and Benistar LTD. These
statements, however, are not properly before the Court on appeal
because Carpenter waived this argument by failing to raise it in
his opening brief. See Levin v. Dalva Bros., Inc., 459 F.3d 68, 76
n.4 (1st Cir. 2006).
10
AUSA Pineault was the prosecutor in charge of Carpenter’s
investigation and prosecution. AUSAs, however, handle numerous
cases simultaneously, and the affidavit makes no mention of the
specific case with which Koresko assisted AUSA Pineault.
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there is little information that has not been released to
another. Id. at 763.
Thus, an intention by Koresko to waive his privacy interest
cannot be distilled from an affidavit of a Congressman attached
to his motion to quash a subpoena in an unrelated case.
Similarly, the Sixth Circuit has found that FBI agents did not
waive the protections provided by Exemption 7(C) by testifying at
the FOIA requester’s habeas proceeding. Jones v. FBI, 41 F.3d
238, 247 (6th Cir. 1994) (“The fact that an agent decided or was
required to testify or otherwise come forward in other settings
does not give plaintiff a right under FOIA to documents . . .
.”). Exemption 7(C) leaves the decision about whether and how to
reveal personal information to the individual. Reporters Comm.,
489 U.S. at 763. Because there is a valid privacy interest, the
requested documents will only be revealed where “the public
interest sought to be advanced is a significant one, an interest
more specific than having the information for its own sake.”
Favish, 541 U.S. at 172.
B. The Public Interest
Whether an invasion of privacy is unwarranted will “turn on
the nature of the requested document and its relationship to ‘the
basic purpose of the [FOIA] to open agency action to the light of
public scrutiny.’” Reporters Comm., 489 U.S. at 772 (quoting
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Dep’t of the Air Force v. Rose, 425 U.S. 352, 372 (1976)).
Neither the specific purpose for which the information is
requested nor the identity of the requesting party has any
bearing on the evaluation. Id. at 771; Fed. Labor Relations
Auth. v. U.S. Dep’t of Navy, 941 F.2d 49, 56 (1st Cir. 1991).
The asserted public interest must shed light on a federal
agency’s performance of its statutory duties. Reporters Comm.,
489 U.S. at 773; Maynard, 986 F.2d at 566. Indeed, the “core
purpose” of the FOIA, to which the public interest must relate,
is to ensure that government activities are open to public
scrutiny, not that information about private citizens, which
happens to be in the government’s possession, be disclosed.
Reporters Comm., 489 U.S. at 774; Maynard, 986 F.2d at 566.
Carpenter asserts that there is a valid public interest in
“determin[ing] whether a business rival has provided the
Government with false information about him” so that Carpenter
can correct any misleading or incorrect information.
(Appellant’s Br. 8.)
To the extent Carpenter is seeking to obtain the documents
that Koresko provided to the government, no public interest is
served because reviewing such documents tells the public nothing
about the actions of the government. Furthermore, Carpenter does
not seek to determine how the government responded to the
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information, but instead whether Koresko revealed any information
or documents. In Reporters Committee, the Supreme Court held
that the rap sheet of a Mafia boss was not the subject of public
concern despite the allegation that the Mafia boss had obtained
Department of Defense contracts through a corrupt Congressman.
489 U.S. at 774-75. The Court stated that the rap sheet would
reveal nothing about the Congressman’s behavior or about the
conduct of the Department of Defense. Id.; accord Maynard, 986
F.2d at 566 (providing that the disclosure of the names of low-
level FBI agents and support personnel would not reveal what the
government is up to). Similarly, revealing any records or
information supplied by Koresko, a private third party, would
tell the public nothing about the actions of an AUSA or the
Department of Justice. Further, were the Court to find a valid
public interest here, virtually every criminal defendant or
target of an FBI investigation would be entitled to FOIA
disclosure by insinuating that the government had acted on false
information.
Rather, the asserted public interest in those documents
centers on Carpenter’s criminal trial and his own innocence.
Here, it is telling that Carpenter requested materials similar to
those that are the subject of the FOIA request through discovery
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in his criminal trial.11 There is no public interest in
supplementing an individual’s request for discovery. NLRB v.
Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978) (providing
that the “FOIA was not intended to function as a private
discovery tool”); New England Apple Council, 725 F.2d at 139.
Further, the innocence or guilt of a particular defendant tells
the Court “nothing about matters of substantive law enforcement
policy that are properly the subject of public concern.” Neely
v. FBI, 208 F.3d 461, 464 (4th Cir. 2000) (holding that there is
no cognizable FOIA interest in a defendant’s need for information
to establish his own innocence).
To the extent, however, that any of the requested material
would reveal how the government responded to informants and
others who offer information, a public interest might be served.
Carpenter’s request for “[a]ll documents that refer to, relate
to, or reflect any conversation with . . . Koresko” could shed
light on possible government misconduct. Nonetheless, Carpenter
11
See supra note 5. Further, in Carpenter’s Emergency Motion
for Summary Judgment, he requested oral argument “as soon as
possible because he need[ed] the requested documents to help him
prepare his defense in United States v. Carpenter . . . .”
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has failed to adequately support disclosure on that basis.12 As
the Supreme Court held in Favish,
where there is a privacy interest protected by
Exemption 7(C) and the public interest being asserted
is to show that responsible officials acted negligently
or otherwise improperly in the performance of their
duties, the requester must establish more than a bare
suspicion in order to obtain disclosure. Rather, the
requester must produce evidence that would warrant a
belief by a reasonable person that the alleged
Government impropriety might have occurred.
541 U.S. at 174. Carpenter’s bare suspicion does not amount to
evidence sufficient to allow a reasonable person to believe that
government impropriety occurred.
Because Carpenter has failed to establish a valid public
interest in the disclosure of the requested documents and
Exemption 7(C) protects the privacy interest of Koresko, we hold
that Exemption 7(C) warrants that the requested documents be
withheld in their entirety.
Because the lack of a public interest is determinative, we
turn only briefly to Carpenter’s additional arguments regarding
the Vaughn index and segregation of exempt portions of the
record.
12
At various points in the litigation, Carpenter insinuated
that the USAO engaged in selective prosecution. Because Carpenter
failed to raise this point in his opening brief, it is waived on
appeal. See Levin, 459 F.3d at 76.
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C. The Vaughn Index and Segregation
To provide for the broadest possible disclosure and further
the adversary process, courts often require the withholding
agency to provide a “Vaughn” index.13 Church of Scientology
Int’l, 30 F.3d at 228; Providence Journal Co., 981 F.2d at 556.
Generally, a Vaughn index provides a broad description of the
requested material or information, and the agency’s reason for
withholding each document or portion of a document. See Church
of Scientology Int’l, 30 F.3d at 228. Nonetheless, a more
detailed statement of the requested materials may not be
necessary where the statement would reveal the very information
sought to be protected. See Maynard, 986 F.2d at 557.
The Vaughn index provided to the plaintiff and the court in
this case consisted of a declaration by John F. Boseker (“Boseker
declaration”), an Attorney Adviser in the Executive Office for
the United States Attorneys, United States Department of Justice.
The Boseker declaration set forth the Government’s Glomar
response, asserted that the requested documents were not required
to be disclosed under Exemption 7(C) and provided that there were
no reasonably segregable portions of the materials. Because
Carpenter failed to assert a cognizable public interest, the
government was not obligated to provide additional detail. See
13
See Vaughn v. Rosen, 484 F.2d 820, 824 (D.C. Cir. 1973).
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id. Even if Carpenter had asserted a valid public interest, the
appropriate method for a detailed evaluation of the competing
interests would have been through an in camera review because a
standard Vaughn index might result in disclosure of the very
information that the government attempted to protect. Id.
(“When, as here, the agency, for good reason, does not furnish
publicly the kind of detail required for a satisfactory Vaughn
index, a district court may review documents in camera.”).
The FOIA further mandates that “any reasonably segregable
portion of a record shall be provided to any person requesting
such records after deletion of the portions which are exempt
under [section 552(b)].” 5 U.S.C. § 552(b). Non-exempt
information or materials may be withheld only where it “is so
interspersed with exempt material that separation by the agency,
and policing of this by the courts would impose an inordinate
burden.” Church of Scientology Int’l, 30 F.3d at 228 (quoting
Wightman v. Bureau of Alcohol, Tobacco & Firearms, 755 F.2d 979,
983 (1st Cir. 1985)). The district court, in deciding that the
materials were exempt from disclosure, failed to make an express
finding that no part of the requested documents were non-exempt
and segregable from exempt portions.
Nonetheless, the Court is satisfied that the in camera
afforded the district court the opportunity to perform a review
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of the documents in light of the asserted exemptions and make the
required determinations regarding segregation. See Church of
Scientology Int’l, 30 F.3d at 233. Further, having reviewed the
documents, we find that there are no reasonably segregable
portions.
III. Conclusion
For these reasons, the order of the district court is
affirmed.
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