UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 94-1112
CHURCH OF SCIENTOLOGY INTERNATIONAL,
Plaintiff, Appellant,
v.
UNITED STATES DEPARTMENT OF JUSTICE,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. A. David Mazzone, Senior U.S. District Judge]
Before
Selya, Circuit Judge,
Coffin and Bownes, Senior Circuit Judges.
Kendrick L. Moxon for appellant.
George B. Henderson, II, Assistant United States Attorney, with
whom Donald K. Stern, United States Attorney, was on brief for
appellee.
July 26, 1994
COFFIN, Senior Circuit Judge. The plaintiff Church of
Scientology International brought this action under the Freedom
of Information Act (FOIA), 5 U.S.C. 552, to compel disclosure
of documents held by the Department of Justice pertaining to the
Church and related entities. The Department released about 1,000
pages in full or in part, but withheld more than 700 additional
pages based on various FOIA exemptions. The Church objected to
both the breadth of the Department's internal search for
documents and the number of exemptions asserted. The district
court granted summary judgment for the government. On appeal,
the Church argues that the government has not satisfied its
burden of showing that no further documents are subject to
release, and that the court consequently erred in granting
judgment as a matter of law. We affirm part of the court's
decision, but vacate the remainder and remand for further
proceedings.
I. Background
In September 1988, the Department's Executive Office for
United States Attorneys (EOUSA) received a FOIA request from the
Church seeking all records located in the U.S. Attorney's office
in Boston that concerned the Church, two related Church entities,
or Scientology in general. The Church particularly was
interested in documents about a check fraud scheme involving the
Church as a victim, and a later extortion plot against the Church
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arising from the fraud.1 In April 1990, the EOUSA released 542
pages in full or in part, and informed the Church that additional
responsive material had been withheld pursuant to specified FOIA
exemptions. The government also reported that other documents
had been referred to the agencies from which they had originated
for consideration of release.
The Church administratively appealed, challenging the
adequacy of the search and the validity of the exemptions. In
September 1992, having received no response, the Church filed
this action. The records concerning the Church's request were
then reviewed by a special assistant U.S. attorney, Charlene
Stawicki, who concluded that the lapse of time since the original
search made it difficult to ascertain how it was performed. She
therefore arranged a new search, the nature of which is detailed
fully in the district court's opinion. It suffices to say here
that the search involved the use of a comprehensive computerized
record-tracking system.
The new search led to the release of an additional 459 pages
in full and 14 pages in part. Two further reviews of the
documents, one following the Supreme Court's clarification of
FOIA law in United States Dep't of Justice v. Landano, 113 S. Ct.
2014 (1993), and another based on a new policy statement from
1 The Church asserts two primary purposes for its document
request. First, it believes that false reports about the Church
have precipitated FBI harassment of Church members and
investigators, and Church officials therefore want to acquire any
such reports so that the information may be corrected. Second,
the Church wants to learn why the government did not prosecute
more than one individual in the check fraud scheme.
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President Clinton and Attorney General Reno,2 resulted in the
release of approximately 75 more pages in full and 15 in part.
This succession of disclosures left about 744 pages withheld
in full and approximately two dozen withheld in part. The bases
for these withholdings were set forth in declarations by two
Department attorneys,3 and in a Vaughn index.4 The index, a
now standard tool conceived by the District of Columbia circuit
to facilitate resolution of FOIA disputes, provides a brief
description of each of the 191 withheld documents and identifies
the exemptions assertedly permitting their nondisclosure.
In ruling on the government's motion for summary judgment,
the district court found that these materials adequately
justified both the scope of the search and the withholdings. Its
decision can be broken down into four separate conclusions: (1)
the search itself was done reasonably, and the documents produced
fulfilled the government's obligation under FOIA; (2) the Vaughn
index generally was sufficiently detailed to permit the court to
2 The new policy emphasized a commitment to openness, and
urged agencies to withhold documents that technically might fall
within an exemption only when "the agency reasonably foresees
that disclosure would be harmful to an interest protected by that
exemption."
3 A 12-page declaration was submitted by John F. Boseker
(the "Boseker Declaration"), an attorney advisor with the EOUSA,
whose responsibilities include the review of requests made under
FOIA and the Privacy Act, 5 U.S.C. 552a. Bonnie L. Gay,
attorney in charge of the Executive Office's FOIA/Privacy Act
Unit, provided supplemental information in a six-page
declaration.
4 The name of the index is derived from the seminal case,
Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973).
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review the Department's claims of exemption; (3) the index and
supporting affidavits specifically supported the exemptions
claimed by the Department to justify withholding documents; and
(4) discovery was unwarranted because the government's showing
was adequate, and discovery would be unlikely to result in a
different outcome while placing a substantial burden on the
Department and the court.
The Church now claims that the district court abused its
discretion in refusing discovery and awarding summary judgment
based on the submitted declarations and Vaughn index, asserting
that these items were too vague and conclusory to support the
exemption claims. The Church also challenges the reasonableness
of the search conducted by the Department, claiming that the
search was too narrowly circumscribed.
Our review of the district court's determination that the
government was entitled to summary judgment based on its index
and affidavits is de novo. See Licari v. Ferruzzi, 22 F.3d 344,
346-47 (1st Cir. 1994) (summary judgment standard); Wiener v.
FBI, 943 F.2d 972, 978 (9th Cir. 1991) (FOIA standard). Our
discussion begins with a review of general FOIA standards and
principles.
II. The Freedom of Information Act
The FOIA requires government agencies to "make . . .
promptly available" to any person, upon request, whatever
"records" the agency possesses unless those "records" fall within
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any of nine listed exemptions. 5 U.S.C. 552(a)(3), (b).5 The
statute's basic purpose is "to ensure an informed citizenry,
vital to the functioning of a democratic society," NLRB v.
Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978), or, stated
more specifically, "`to open agency action to the light of public
scrutiny,'" Department of Justice v. Reporters Committee, 489
U.S. 749, 772 (1989) (citation omitted). The policy underlying
FOIA is thus one of broad disclosure, and the government must
supply any information requested by any individual unless it
determines that a specific exemption, narrowly construed,
applies. Aronson v. IRS, 973 F.2d 962, 966 (1st Cir. 1992). The
government bears the burden of demonstrating the applicability of
a claimed exemption, Maynard v. CIA, 986 F.2d 547, 557-58 (1st
Cir. 1993); In Re Department of Justice, 999 F.2d 1302, 1305 (8th
Cir. 1993) (en banc), and the district court must determine de
novo whether the queried agency has met this burden, Aronson, 973
F.2d at 966.
FOIA also provides for partial disclosure of documents that
contain some exempted information, mandating that "all reasonably
segregable, non-exempt portions of any agency records must, after
deletion of the exempt material, be disclosed to a requester, 5
U.S.C. 552(b)," Wightman v. Bureau of Alcohol, Tobacco &
Firearms, 755 F.2d 979, 983 (1st Cir. 1985). In determining
segregability, "courts must construe the exemptions narrowly with
5 The exemptions protect, inter alia, privacy and
confidentiality interests, the secrecy of grand jury proceedings,
and matters covered by the attorney-client privilege.
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the emphasis on disclosure," id.. An agency may withhold non-
exempt information only if it "`is so interspersed with exempt
material that separation by the agency, and policing of this by
the courts would impose an inordinate burden,'" Id. (quoting Lead
Industries Ass'n v. Occupational Safety and Health Admin., 610
F.2d 70, 86 (2d Cir. 1979)). See also Krikorian v. Department of
State, 984 F.2d 461, 466 (D.C. Cir. 1993) ("`non-exempt portions
of a document must be disclosed unless they are inextricably
intertwined with exempt portions'" (citation omitted)).
To assure the broadest possible disclosure, courts often
direct a government agency seeking to withhold documents to
supply the opposing party and the court with a Vaughn index,
which includes a general description of each document sought by
the FOIA requester and explains the agency's justification for
nondisclosure of each individual document or portion of a
document. Maynard, 986 F.2d at 556-57; Vaughn, 484 F.2d at 823-
28. Such an index is viewed as necessary to protect the
adversary process in a FOIA case, in which only the party
opposing disclosure will have access to all the facts. Wiener,
943 F.2d at 977; Vaughn, 484 F.2d at 823-28. We previously have
identified a trio of functions served by the index:
[I]t forces the government to analyze carefully any
material withheld, it enables the trial court to
fulfill its duty of ruling on the applicability of the
exemption, and it enables the adversary system to
operate by giving the requester as much information as
possible, on the basis of which he can present his case
to the trial court.
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Maynard, 986 F.2d at 557 (quoting Keys v. United States Dept. of
Justice, 830 F.2d 337, 349 (D.C. Cir. 1987) (quoting Lykins v.
United States Dept. of Justice, 725 F.2d 1455, 1463 (D.C. Cir.
1984))). See also In Re Department of Justice, 999 F.2d at 1305.
Although FOIA's primary thrust is to promote openness, the
Supreme Court also has recognized a Congressional intent "to
provide `workable rules' of FOIA disclosure," Landano, 113 S. Ct.
at 2023 (citing cases). To that end, the Court has interpreted
the statute as permitting agencies to exempt certain records on a
categorical basis, rather than requiring a document-by-document
consideration. In Reporters Committee, for example, the Court
concluded that criminal "rap sheet" information is categorically
exempt from disclosure because the release of such information
invariably constitutes an unwarranted invasion of privacy.6 489
U.S. at 780. The Court has reached a similar conclusion with
respect to the exemption of material furnished by sources, see
Landano, 113 S. Ct. at 2022, holding that "when certain
circumstances characteristically support an inference of
confidentiality," the Government may justify nondisclosure
without detailing the circumstances surrounding a particular
interview.7
6 The Court in Reporters Committee was construing FOIA
Exemption 7(C), which allows the Government to withhold law
enforcement records or information whose production "could
reasonably be expected to constitute an unwarranted invasion of
personal privacy," 5 U.S.C. 552(b)(7)(C).
7 Landano concerned Exemption 7(D), which permits the
Government to withhold
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FOIA's general philosophy remains, however, one of "`full
agency disclosure,'" Aronson, 973 F.2d at 966 (quoting Department
of Air Force v. Rose, 425 U.S. 352, 360 (1976) (quoting S. Rep.
No. 813, 89th Cong., 1st Sess. 3 (1965))), and courts have the
obligation to interpret its reach "generously, in order to
achieve the FOIA's basic aim: sunlight," id.. See also Landano,
113 F.2d at 2024.
What usually remains unspoken, but is a reality often
affecting attitudes and conduct implementing FOIA, is the very
considerable burden laid on both the government and the trial
court in searching files for multitudinous documents, analyzing
them, and justifying not only any exclusion relied upon but any
refusal to redact and segregate the disclosable from the
residually privileged. This burden often is exacerbated by the
apparent lack of any perceptible public purpose on the part of
the requester. In such a case, already burdened courts and
agencies may deem FOIA's dedication to the importance of
"sunlight" as unrealistic. We thoroughly appreciate this kind of
tension. We are dealing with a law that complicates the task of
governing. Yet, its goals are worthy, and we are bound to honor
records or information compiled for law enforcement
purposes, but only to the extent that the production of
such law enforcement records or information . . . could
reasonably be expected to disclose the identity of a
confidential source, . . . , and, in the case of a
record or information compiled by criminal law
enforcement authority in the course of a criminal
investigation . . . , information furnished by a
confidential source.
552(b)(7)(D).
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both its letter and its spirit. Moreover, as in any "hard case,"
we must constantly remind ourselves that our decision establishes
principles that must be generally applicable -- both to requests
that seem merely annoying and to those that may reflect the most
vital concerns of citizens. Cf. Senate of Puerto Rico v.
Department of Justice, 823 F.2d 574, 587 (D.C. Cir. 1987) ("The
costs must be borne . . . if the congressional policy embodied in
FOIA is to be well served.")
III. Did the Government Meet Its Burden?
A. Adequacy of the Search
When the Church submitted its request for documents in
September 1988, it triggered a responsibility on the part of the
Department of Justice to do a reasonably thorough search of its
records and to turn over all responsive materials except those
for which it could prove an exemption from disclosure. Maynard,
986 F.2d at 559. The Church has two primary complaints about
what transpired. First, it claims that the search was too
narrow, and, consequently, that more responsive documents should
have been found. Second, it claims that the Department has
failed to meet its burden of proving that all of the withheld
materials are exempt from disclosure. Like the district court,
the parties break this issue into three components: (1) is the
index generally too vague? (2) are the specific claims of
exemption supportable? (3) did the court abuse its discretion in
denying discovery?
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We readily can dispose of the first issue. As we have
noted, the adequacy of an agency's search for documents under
FOIA is judged by a standard of reasonableness. Maynard, 986
F.2d at 559. "The crucial issue is not whether relevant
documents might exist, but whether the agency's search was
`reasonably calculated to discover the requested documents.'"
Id. (citation omitted). The district court properly identified
and applied this standard here, finding that the search was
adequate based on the details provided in the Stawicki affidavit.
Ms. Stawicki stated that she directed the second search for
documents conducted after the Church filed suit, that the search
was conducted through a computerized record system whose
capabilities she described, that a manual search would be
impossible, and that she personally searched the computer files
for specific documents responsive to the Church's request. The
court found that this information, in the absence of any evidence
of bad faith, was sufficient. We agree, and thus affirm its
conclusion.8
The Church's second complaint is more compelling. Although
implicitly contending that the government has withheld an
excessive number of documents, the Church at this juncture really
is making a more limited argument. It maintains that the
affidavits and Vaughn index were too vague and conclusory to
8 The Church made two specific arguments regarding the
inadequacy of the Department's search, neither of which were
raised before the district court. We therefore need not, and do
not, address them here. See Watkins v. Ponte, 987 F.2d 27, 29
(1st Cir. 1993).
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permit it or the district court meaningfully to evaluate the
Department's exemption claims, and the Church therefore asserts
that it was entitled to more information, either through
discovery or a revised index, before the summary judgment motion
properly could be decided.
B. General Inadequacies of the Index and Affidavits
We have studied carefully the affidavits and index,
considering separately each of the 191 entries, and are persuaded
that, with respect to many documents, the government has failed
to support adequately its claim of exemption.9 Each entry
contains four types of information: (1) the number of pages in
the document; (2) a brief description of the nature of the
document; (3) the content of the withheld portions; and (4) the
statutory exemption numbers claimed to support nondisclosure.
Document No. 4, for example, is entered in the index as follows:
[Pages] [Description] [Content/withheld portions]
[Exemptions]
21 Typed AUSA notes Attorney work product b(5)
(undated) document marshalling facts b(7)(D)
and sources of information b(7)(C)
created in contemplation of
litigation. Confidentiality
referenced throughout
document. References Third
Party Individuals throughout.
(WIF [withheld in full])
9 Some of these documents have been released in whole or in
part as a result of the administration's openness policy. See
supra note 2. The government identifies these documents as Nos.
58, 63-66, 69, 71-73, 77-81, 84-86 and 88-90.
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In our view, the descriptions for many of the documents are
too cursory to permit debate, or an informed judgment, about
whether they properly may be withheld. As with Document No. 4,
multiple exemption numbers are noted beside many entries, without
any correlation between a particular exemption and the sections
of the document to which it relates. Most documents, including
lengthy ones like No. 4, are withheld in their entirety, without
any reference to segregability.
The declarations submitted with the index contain only
general and conclusory assertions concerning the documents. For
example, with respect to documents claimed to be exempt under the
privacy provision, Exemption 7(C), see supra note 6, the Boseker
declaration first describes the types of information to which the
exemption applies,10 and then states categorically that "there
10 Paragraph 15 of the declaration states:
This exemption applies to withhold identities of
and personal information about third party individuals,
release of which could subject such persons to unwanted
and even unlawful efforts to gain further access to
them or personal information, harassment or harm,
exposure to unwanted and/or derogatory publicity and
inferences arising from their connection to the case,
all to their detriment.
This exemption also applies to withhold identities
of individuals such as special agents, government
employees, and local law enforcement personnel who
participated in the investigation and prosecution of
the referenced cases. Individual duties and
assignments are not public and such publicity as would
likely arise from disclosure would seriously impede, if
not totally jeopardize law enforcement effectiveness in
subsequent cases, even subjecting such individuals to
harassment or harm. These persons have protected
privacy interests in the conduct of law enforcement
investigations.
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was no public interest in the release of this information nor any
interest which would counterbalance the individual's privacy in
the information withheld under this exemption." The declaration
states that each document was evaluated for segregability, and
that, where a document was withheld in its entirety, "EOUSA
determined that no meaningful portions could reasonably be
released without destroying the integrity of such document as a
whole."
The Gay declaration supports the privacy withholdings by
emphasizing that the Church's reported policy of retribution
against its perceived enemies provided the basis for the
Department's substantial concern about protecting the personal
privacy of government employees and third party contacts. Gay
repeats essentially the same general conclusion about
segregability offered by Boseker: "There are no segregable
portions which have not been released which could be released
without creating a substantial risk of disclosing information
protected from disclosure."
These declarations are written too generally to supplement
the index in any meaningful way. They treat the documents within
various exemption categories as a group, without referring to
specific documents, and make broad statements essentially
explaining that the documents were withheld because they contain
the type of information generally protected by that particular
exemption. The statements regarding segregability are wholly
conclusory, providing no information that would enable a
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requester to evaluate the agency's decisions. Thus, none of the
functions of the index identified in Maynard are served: the
declarations do not demonstrate careful analysis of each document
by the government; the court has not been assisted in its duty of
ruling on the applicability of an exemption; and the adversary
system has not been visibly strengthened. See supra p. 7.
Although "[t]here is no set formula for a Vaughn index,"
Hinton v. Department of Justice, 844 F.2d 126, 129 (3d Cir.
1988), to serve its purpose the listing "`must supply "a
relatively detailed justification, specifically identifying the
reasons why a particular exemption is relevant and correlating
those claims with the particular part of a withheld document to
which they apply,"'" Krikorian, 984 at 467 (citations omitted)
(emphasis in original). It is "the function, not the form, which
is important," Hinton, 844 F.2d at 129, and the question is
whether the particular taxonomy employed "afford[s] the FOIA
requester a meaningful opportunity to contest, and the district
court an adequate foundation to review, the soundness of the
withholding," Wiener, 943 F.2d at 977-78.
The lack of justification for withholding lengthy documents
in their entirety is the most pervasive problem with the index.
Upon encountering similarly imprecise indices, the District of
Columbia Circuit recently noted, in words equally apt here, that
the materials submitted
"[we]re written in terms of documents, not information,
but `[t]he focus in the FOIA is information, not
documents, and an agency cannot justify withholding an
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entire document simply by showing that it contains some
exempt material.'"
Krikorian, 984 F.2d at 467 (citation omitted). We think it
fruitful to examine closely several entries as a way of
demonstrating the index's deficiencies:
* Document No. 5 is a 32-page declaration, with four pages
of supporting exhibits. The contents column contains the
following information:
Individual third party declaration of and concerning
relationship with Church. Not evidenced as admitted
into court or on public record, so deemed confidential
statement. (WIF)
The entire document is withheld pursuant to Exemption 7(C), the
personal privacy exemption. The entry fails, however, to
indicate why privacy concerns could not be met simply by deleting
identifying information. Without some further elaboration of the
document's contents, the Church is unable to dispute the claim
that no portion of the 36 pages is segregable.11
*Document No. 6 is an 11-page affidavit from a third party
containing the following information:
11 The government states in its brief with respect to this
document that "the EOUSA could properly determine that even
partial disclosure might well allow plaintiffs to identify the
declarant through the nature of the information disclosed." The
government unquestionably could make such a determination, but it
needs to provide more than this unsupported conclusion to justify
withholding the whole document. Is the document full of personal
anecdotes, whose perspective would tend to reveal the declarant,
thus supporting this conclusion? Or does the document simply
give one individual's description of the way the Church generally
treats members, and thus arguably include material that could be
segregated from the identifying information?
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Individual third party affidavit concerning Church and
other matters. Not evidenced as admitted into court or
on public record, so deemed confidential. (WIF)
The entire document is withheld pursuant to Exemption 7(C), as
well as under the Privacy Act, 5 U.S.C. 552a(j)(2).12 Again,
no attention is given to segregability. What were the "other
matters" described? This entry unquestionably fails to supply
the Church with enough information "`to permit [it] to present
its case effectively,'" Orion Research Inc. v. EPA, 615 F.2d 551,
553 (1st Cir. 1980) (citation omitted), the function the index
was conceived to perform.
*Document No. 20 is a 49-page deposition transcript
described as follows:
Transcript of deposition of third party individual
taken by private reporting service in Commonwealth of
Mass. (WIF)
The entire document is withheld pursuant to Exemption 7(C), yet
nothing in the entry indicates why the privacy interest at stake
could not be protected simply by redacting identifying
information.
12 Section (j)(2) exempts from mandatory disclosure records
maintained by an agency that performs as its principal function
any activity pertaining to the enforcement of criminal laws.
Section (k)(2) of the Act similarly exempts certain investigatory
materials compiled for law enforcement purposes in other than
criminal matters. Although the Boseker Declaration states that
all of the relevant records in this case were exempt under one or
the other of the Privacy Act provisions, only certain of the
entries include (j)(2) as a justification for nondisclosure.
See, e.g., Document Nos. 6, 11, 13, 15-19, 43, 46, 53, 55, 56,
58, 60-62, 75, 76, 95, 109, 111, 115-121, 123, 125, 127, 146,
185, 187, 190, 191.
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*Document No. 96 is a six-page deposition summary, withheld
pursuant to Exemption 7(C), and described only as a "[s]ummary of
deposition of third party individual." Segregability once again
is not addressed. The entry for Document No. 104, also a six-
page deposition summary, is similarly deficient.
*Document No. 141 is a 29-page declaration withheld pursuant
to 7(C), described as follows:
Third party individual/source declaration. Not public
record or waiver of confidentiality. (WIF)
As with other entries, there is no explanation about why the
deletion of identifying information would not suffice to meet
privacy concerns.
The district court concluded that the index, as supplemented
by the Boseker and Gay declarations, fulfilled the government's
obligation to supply "reasoned justification" for its
withholdings, and it noted that the Church had presented no
evidence suggesting bad faith in the government's response. The
court observed that the government had supported the individual
withholdings with greater specificity than this court had
ratified in Maynard.
In our view, however, the government's showing fell short of
providing the Church with a "`meaningful opportunity,'" see
Wiener, 943 F.2d at 977, to challenge a substantial number of its
unilateral decisions to withhold documents, thus depriving the
district court of "the controverting illumination that would
ordinarily accompany a request to review a lower court's factual
determination," Vaughn, 484 F.2d at 825. We disagree with the
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district court that the showing exceeded that affirmed in
Maynard. In that case, see 986 F.2d at 557-59, the FBI produced
the withheld documents in redacted form, withholding only those
portions that it claimed were exempt. Next to each portion
withheld, the FBI provided a coded reference to exemption claims
specifically identified in a separately filed declaration. The
government also provided copies of the unredacted documents for
the court's in camera review. Unlike this case, therefore, the
court in Maynard was able to perform a close review of individual
documents.
The government suggests that, in the absence of any
legitimate question of good faith, its repeated review of the
documents, each time leading to a conclusion that no significant
non-exempt segments could be released, is sufficient to justify
its withholding decisions and failure to segregate. It claims
that the only meaningful way to test the Department's
determinations would have been through in camera review, which
the Church did not request.
A lack of bad faith on the part of the government, however,
does not relieve it of its obligation in the first instance to
provide enough information to enable the adversary process to
operate in FOIA cases. The presumption of good faith accorded to
agency affidavits, see Carney v. Department of Justice, 19 F.3d
807, 812 (2d Cir. 1994), petition for cert. filed, 63 U.S.L.W.
3009 (U.S. June 21, 1994) (No. 93-2141); Maynard, 986 F.2d at
560, can only be applicable when the agency has provided a
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reasonably detailed explanation for its withholdings, see
Maynard, 986 F.2d at 560. A court may not without good reason
second-guess an agency's explanation, but it also cannot
discharge its de novo review obligation unless that explanation
is sufficiently specific.
Additionally, the fact that the Church did not request in
camera review in no way lessens the government's burden to make
an adequate showing. FOIA provides for in camera review, at the
district court's discretion, if the court finds the agency's
materials in support of exemption to be too generalized. See id.
at 557. In other words, in camera review is a tool available to
a court when the government's showing otherwise is inadequate to
satisfy the burden of proving the exempt status of withheld
documents. Id. at 557-58. The Church had no obligation to
request such a review.
We emphasize that the index examples described above are
merely illustrative, and that numerous other entries suffer from
similar imprecision. We by no means suggest, however, that every
entry is vulnerable. The index is notably inadequate with
respect to lengthier documents, where the lack of correlation
between the exemptions claimed and specific portions of the
document, and the failure to address segregability, combine to
make the government's showing particularly vague. In contrast, a
number of documents consist of a single page. It is fairly
inferable from the entries for many of these that there is no
meaningful segregable non-exempt content, and we see nothing to
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be gained from requiring more detail. See, e.g., Document Nos.
8, 9, 48, 56, 59, 127. Similarly, where multiple exemptions are
claimed for these short documents, the lack of correlation
typically is not a problem.
The government makes two points regarding the adequacy of
its declarations and Vaughn index that warrant response. First,
it asserts that the degree of detail required in an index depends
upon the nature of the documents at issue and the particular
exemption asserted. We agree that different approaches apply to
the various statutory exemptions, and we will discuss the
specific exemptions claimed by the government in the next
section. At this juncture, we note simply that a categorical
approach to nondisclosure is permissible only when the government
can establish that, in every case, a particular type of
information may be withheld regardless of the specific
surrounding cirumstances. See supra p. 8.
The government also observes that courts have approved
indices with less detail where the records at issue are
voluminous, citing Meeropol v. Meese, 790 F.2d 942, 956-57 (D.C.
Cir. 1986). In Meeropol, government agencies retrieved
approximately 500,000 pages of records and released approximately
200,000 as a result of what the court described as perhaps "the
most demanding FOIA request ever filed," id. at 951. Both the
search and the methods used to evalute the search in that case
were extraordinary, and, in our view, do not support the
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sufficiency of a sketchy index in this case.13 Giving full
weight to the concern that the government should not be subjected
to unrealistically exhaustive labors, we nevertheless are
convinced that the task of reconsidering the 191 documents,
adding meaningful detail or explanation where necessary, would
not pose an unreasonable burden on the government. Indeed,
including this information at the outset would have required
negligible incremental effort.
Moreover, even when generic exemptions are appropriate, the
Supreme Court contemplates that the government provide meaningful
detail in support of its withholdings. In Landano, the Court
rejected the government's argument that a source should be
presumed confidential within the meaning of Exemption 7(D)
whenever the source provides information to the FBI in the course
of a criminal investigation. It held, however, that the
inference could be supported by reference to more narrowly
defined generic circumstances. For example, it would be
reasonable to infer that paid informants normally expect their
cooperation with the FBI to be kept confidential. Similarly, the
13 The government's other citation for this point, Weisberg
v. Department of Justice, 745 F.2d 1476, 1483 (D.C. Cir. 1984),
also involved a tremendous search, resulting in disclosure of
approximately 60,000 pages of documents. The district court in
that case ordered preparation of a Vaughn index of every two
hundredth page of responsive material, a supplement to that
index, and in camera submission of a number of documents wihheld
in their entirety. Id. at 1489-90. The circuit approved the
sampling procedure because the number of documents was so great
and "it would not realistically be possible to review each and
every one." Id. at 1490.
-22-
character of the crime at issue or the source's relation to the
crime could support such an inference.
It is not enough, however, for the government simply to
state blandly that the source's relationship to the crime permits
an inference of confidentiality. Rather, the government has an
obligation to spell out that relationship:
[W]hen a document containing confidential source
information is requested, it generally will be possible
to establish factors such as the nature of the crime
that was investigated and the source's relation to it.
Armed with this information, the requester will have a
more realistic opportunity to develop an argument that
the circumstances do not support an inference of
confidentiality.
Landano, 113 S. Ct. at 2024.
Of course, as the Court acknowledged in the next sentence of
this passage from Landano, the government is not expected to
provide so much detail in its supporting materials that it risks
compromising the very interests it is seeking to protect. The
agency may request in camera review as a way of demonstrating
that no further specificity should be required, and reviewing
courts should consider carefully whether such a step is feasible
and appropriate. As much as possible should be done openly,
however, keeping in mind the goal of advancing adversarial
testing of agency decisions. See Wiener, 943 F.2d at 979
("Unless the agency discloses `as much information as possible
without thwarting the [claimed] exemption's purpose . . . , the
adversarialprocessisunnecessarilycompromised."(citationomitted)).
We strongly believe that there are meaningful additions that
could be made to the Vaughn index in this case without
-23-
jeopardizing the interests at stake. In the next section, which
discusses the specific exemptions invoked by the Department, we
note some particular suggestions for improvement.
C. Specific Exemptions
The Department invoked six different FOIA exemptions, alone
or in combination, in support of its withholdings. On appeal,
the Church does not challenge the government's use of either
Exemption 2, which protects from disclosure information related
solely to the internal personnel rules and practices of an
agency, see 5 U.S.C. 552(b)(2), or Exemption 7(F), which
provides for withholding of law enforcement information that
"could reasonably be expected to endanger the life or physical
safety of any individual," 5 U.S.C. 552(b)(7)(F).
(1) Exemption (b)(3) and Fed. R. Crim. P. 6(e). FOIA
Exemption 3, 5 U.S.C. 552(b)(3), allows the withholding of
materials that are "specifically exempted from disclosure by
statute . . . ." The parties agree that the Department properly
invoked this provision to withhold grand jury materials made
exempt from disclosure by Rule 6(e) of the Federal Rules of
Criminal Procedure. See Fund for Constitutional Gov't v.
National Archives and Records Serv., 656 F.2d 856, 867 (D.C. Cir.
1981). The Church complains, however, that it is impossible to
determine from the Vaughn index and affidavits whether all of the
documents for which the Department asserted this privilege
genuinely constitute "grand jury" material.
-24-
As the district court recognized, the scope of secrecy
afforded grand jury materials is "necessarily broad." Id. at
869.
It encompasses not only the direct revelation of grand
jury transcripts but also the disclosure of information
which would reveal "the identities of witnesses or
jurors, the substance of testimony, the strategy or
direction of the investigation, the deliberations or
questions of the jurors, and the like."
Id. (quoting SEC v. Dresser Indus., Inc., 628 F.2d 1368, 1382
(D.C. Cir. 1980)). In addition, unlike actions under other FOIA
exemptions, agency decisions to withhold materials under
Exemption 3 are entitled to some deference. We have observed
that "once a court determines that the statute in question is an
Exemption 3 statute, and that the information requested at least
arguably falls within the statute, FOIA de novo review normally
ends," Maynard, 986 F.2d at 554 (quoting Aronson, 973 F.2d at
965, 967).
We are satisfied that, under this standard, documents
identified as grand jury exhibits, and whose contents are
testimonial in nature or otherwise directly associated with the
grand jury process, such as affidavits and deposition
transcripts, ordinarily may be withheld simply on the basis of
their status as exhibits.14 We distinguish such materials from
business records or similar documents "created for purposes
independent of grand jury investigations, which have legitimate
14 This would include, inter alia, document Nos. 2 (grand
jury list of documents), 3 (exhibits list), 130-33, 142, 148,
153, 163, 172, 173, 181, 182, 184, 187, 188-90.
-25-
uses unrelated to the substance of the grand jury proceedings,"
United States v. Dynavac, Inc., 6 F.3d 1407, 1412 (9th Cir.
1993). Although these documents, too, may be subject to
nondisclosure under Exemption 3 if they are grand jury exhibits,
the government needs to provide some basis for a claim that
releasing them will implicate the secrecy concerns protected by
Rule 6(e).15
The requirement that the government explain the basis for
its conclusion that Rule 6(e), and thus Exemption 3, at least
arguably permits withholding of certain documents applies a
fortiori to materials not specifically identified as grand jury
exhibits, but which simply were located in grand jury files. In
this case, for example, Document Nos. 164, 166-170, 174-180 and
183 are labelled as "Grand Jury Materials," and most were found
in a file marked "Grand Jury."16 There is no indication,
15 We think it reasonable for an agency to withhold any
document containing a grand jury exhibit sticker or that is
otherwise explicitly identified on its face as a grand jury
exhibit, as release of such documents reasonably could be viewed
as revealing the focus of the grand jury investigation. See Fund
for Constitutional Gov't v. National Archives and Records Serv.,
656 F.2d 856, 869 (D.C. Cir. 1981) (information "identifying
documents considered by the grand jury . . . falls within the
broad reach of grand jury secrecy . . . ."). See, e.g., Document
Nos. 35, 52. Whether some portion of the document is segregable,
however, also needs to be considered and addressed.
16 The inadequacy of the Vaughn index is well illustrated by
the entries for Document Nos. 178 and 179. Both documents are
identified as one-page declarations, with 20-page attachments.
No. 178 is described as originating "from file marked `Grand
Jury,'" while 179 is identified only as "Grand Jury Materials."
Both are claimed exempt under Exemption 3, as well as Exemption
7(C), but no specifics are given as to the contents of the
documents and whether all, or only part, of the document
implicates privacy concerns.
-26-
however, whether the materials impermissibly would reveal the
inner workings of the grand jury. It cannot be that exposure to
the grand jury immunizes information from future disclosure,
regardless of its impact on the interest underlying Rule 6(e).
See Senate of Puerto Rico, 823 F.2d at 582 ("There is no per se
rule against disclosure of any and all information which has
reached the grand jury chambers . . . .").17 The government is
obligated to offer some support for its claim that release of the
sought-after documents would compromise the secrecy of the grand
jury process.18
(2) Exemption (b)(5). FOIA Exemption 5, 5 U.S.C.
552(b)(5), permits withholding of "inter-agency or intra-agency
memorandums or letters which would not be available by law to a
party other than an agency in litigation with the agency." This
exemption has been interpreted to encompass "those documents, and
only those documents, normally privileged in the civil discovery
context," NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975).
Consistent with a change in policy by the Clinton Administration,
17 Indeed, we suspect that a number of documents found in
grand jury files would not be identifiable as connected to a
grand jury proceeding at all because they were generated for
another purpose, and presumably would not be labeled as grand
jury material upon release.
18 We have tried through our approach to the grand jury
issue to tread a path that honors the requester's entitlement to
an adequate and lawful explanation for any withholding decision,
but protects the government from unreasonable burdens in
justifying nondisclosure. The government's obligation thus is
minimal except for materials assertedly connected to a grand jury
investigation that bear no facial connection to grand jury
proceedings.
-27-
the Department has since the time of the district court's opinion
released a number of documents previously withheld based on the
attorney-client and deliberative process privileges, and now
invokes Exemption 5 only for certain documents assertedly
protected by the attorney work-product privilege.
To withhold a document based on this privilege, the
Department must prove that it was prepared under the direction of
an attorney in contemplation of litigation. See Senate of Puerto
Rico, 823 F.2d at 586; Sprague v. Director, Office of Workers'
Comp. Programs, Etc., 688 F.2d 862, 869 (1st Cir. 1982). And, as
with all exemptions, it must offer some basis for concluding that
there are no segregable, nonexempt portions of the document. The
district court found that the Boseker declaration and Vaughn
index justified all of the Exemption 5 withholdings, and it
pointed to Boseker's assertion that the records to which the
work-product privilege was applied reflect "such matters as trial
preparation, trial strategy, interpretations, and personal
evaluations and opinions pertinent to the Church's and other
third party individuals' civil and criminal cases."
The court specifically considered Document No. 4, whose
entry in the Vaughn index we previously have quoted, see supra p.
12, and concluded that the entry was sufficient to validate the
Department's decision to withhold the entire document under
Exemption 5. We do not agree. For purposes of this exemption,
the Vaughn index states only that document No. 4 consists of 21
pages of typed attorney notes "marshalling facts and sources of
-28-
information created in contemplation of litigation." The Boseker
declaration adds to this only generalized comments about all of
the documents for which the work-product privilege was asserted.
We believe that, at a minimum, an agency seeking to withhold a
document in its entirety under this exemption must identify the
litigation for which the document was created (either by name or
through factual description) and explain why the work-product
privilege applies to all portions of the document.
As presently written, the entry for document No. 4 indicates
that at least some of the 21 pages of notes involve material
covered by the attorney work-product privilege. Because there is
no correlation between the three claimed exemptions (Nos. b(5),
b(7)(D), b(7)(C)) and specific portions of the document, however,
it is not clear whether Exemption 5 is intended to justify
withholding of the entire document. Moreover, the index does not
disclose the nature of this document: Is it a draft of a
pretrial memorandum?; an internal memorandum evaluating whether
to file charges or whom to call as witnesses?; or simply a
summary of all information collected to date? Neither the Church
nor the court is able to evaluate meaningfully whether all of the
factual material properly is exempted from disclosure because it
is integrated into the document as part of the attorney's pre-
trial work, in which event it appropriately could be withheld,
see Mervin v. FTC, 591 F.2d 821, 826 (D.C. Cir. 1978), or whether
the agency has overstepped proper boundaries in determining what
constitutes a document prepared in anticipation of litigation.
-29-
In Mervin, the majority concluded that further government
affidavits or in camera review was unnecessary for a
determination of segregability because the affidavit already
submitted demonstrated that any factual material in the four
documents at issue there "is incidental to and bound up with,
discussion of litigation strategy and the deliberative processes
of attorneys actively preparing their defense for a pending
lawsuit." Id.19 We do not believe such a conclusion can be
reached in this case based on the information provided thus far
for a number of documents claimed exempt under Exemption 5. See,
e.g., Document Nos. 4, 40 (74-page "prosecution memo"), 76, 91,
92 and 139.20 Certain other documents for which the Department
has invoked Exemption 5 simply are not adequately described to
permit meaningful review of the withholding decision. See, e.g.,
Document Nos. 105-109.21
19 The district court in this case relied on Mervin in
upholding the Department's application of Exemption 5, noting
that an attorney's affidavit sufficed there to prove that factual
material contained within the documents fell within the work-
product privilege. Unlike the affidavit in Mervin, however, the
affidavits here are not document-specific, and are thus much less
informative.
20 We note that factual material contained within a document
subject to the work product privilege often will be embraced
within the privilege, and thus be exempt from disclosure. See A.
Michael's Piano, Inc. v. FTC, 18 F.3d 138, 147 (2d Cir. 1994);
Martin v. Office of Special Counsel, MSPB, 819 F.2d 1181, 1186
(D.C. Cir. 1987).
21 We reiterate a point made earlier, that the lack of
specificity poses a particular problem with respect to lengthier
documents. Although the entries for a number of shorter
documents suffer some of the same inadequacies -- notably lack of
correlation between text and exemptions, and failure to address
segregability -- the brevity of these documents makes it
-30-
(3) Exemption b(7)(C). FOIA exemption 7(C), 5 U.S.C.
552(b)(7)(C), exempts from disclosure information compiled for
law enforcement purposes that "could reasonably be expected to
constitute an unwarranted invasion of personal privacy." The
Boseker and Gay declarations state that the Department relied on
Exemption 7(C) to withhold names and other personal information
about various individuals, including personnel of the United
States Attorney's Office and FBI agents, other federal, state and
local government personnel, and individuals who provided
information to the FBI or the USAO.
The parties agree that Exemption 7(C) requires balancing the
privacy interests at issue against any public interest in
disclosure, see Reporters Committee, 489 U.S. at 762, and further
agree that information identifying specific individuals usually
may be withheld because of these individuals' "significant
privacy interests in not having their names revealed," Maynard,
986 F.2d at 566. The Church, however, contends that the
Department's Vaughn index repeatedly fails to explain why the
agency has withheld an entire document rather than releasing it
with the identifying information redacted.22
reasonable to validate the government's withholding decision with
little or no additional information. For example, if the
Department simply identifies the prosecution for which Document
No. 43 was prepared, no further details are necessary. See also,
e.g., entries for Document Nos. 68, 70, 74, 93.
22 In its brief, the government suggests that it was
warranted in dispensing with the item-by-item detail that
ordinarily is necessary to justify Exemption 7(C) withholdings
because a categorical determination to withhold personal
information is permissible in the absence of a demonstrated
-31-
We have pointed to just such deficiencies in our earlier
discussion of particular documents, see supra pp. 15-17, and need
not retread that ground. It suffices to say at this point that
many of the index entries for documents assertedly exempt under
Exemption 7(C) lack the necessary specificity for a meaningful
review of the agency's decision to withhold them in their
entirety. The district court did not address the Exemption 7
segregability issue.
(4) Exemption b(7)(D). FOIA exemption 7(D), 5 U.S.C.
552(b)(7)(D), protects from disclosure
records or information compiled for law enforcement
purposes . . . [that] could reasonably be expected to
disclose the identity of a confidential source . . .
and, in the case of a record or information compiled by
criminal law enforcement authority in the course of a
criminal investigation . . . information furnished by a
confidential source.
The exemption protects the identity of a confidential source, any
information that could identify such a source, and all
information furnished by such a source. Irons v. FBI, 880 F.2d
1446, 1447 (1st Cir. 1989) (en banc). The Supreme Court's
public interest in that information. We agree that the Church
has not put forward a public interest in the names or other
personal indentifying information that would override the strong
privacy interest in such information contained in law enforcement
files, see Maynard, 986 F.2d at 566. A categorical exclusion for
identifying information therefore is appropriate here. Cf.
SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1205-06 (D.C. Cir.
1991). This conclusion does not resolve the Church's central
claim, however -- that the government failed to demonstrate on an
item-by-item basis why documents should not be released with the
personal identifying information redacted. Cf. Norwood v. FAA,
993 F.2d 570, 574-75 (6th Cir. 1993) (under privacy Exemption 6,
"excluding from disclosure any and all fragments of information
that might assist a diligent researcher in identifying a person .
. . is not supportable").
-32-
Landano decision, 113 S. Ct. 2014, which we have described
earlier, see supra at pp. 8, 21-22, addressed the government's
contention that all sources supplying information to a law
enforcement agency during a criminal investigation should be
presumed confidential within the meaning of Exemption 7. The
Court rejected this broad presumption, ruling instead that a
source properly is considered confidential only if there has been
an express assurance of confidentiality or if the particular
circumstances support an inference of confidentiality. When the
factors suggesting confidentiality are present, the government
may withhold a document under Exemption 7(D) without detailing
the circumstances surrounding a particular interview. Id. at
2023-24.
After the Landano decision, the government re-evaluated all
of the documents to which it had applied Exemption 7(D), deleted
that provision as a basis for withholding 39 documents, and
consequently released an additional 20 pages of information to
the Church. The district court found that the remaining 7(D)
claims were supported adequately by the Vaughn index and the
affidavits.
Our review of the index, however, reveals a significant
number of entries invoking Exemption 7(D) that are insufficient
because they either fail to specify whether the source was
provided an express or implied grant of confidentiality, or do
not provide sufficient detail about the surrounding circumstances
to support an assertion of implied confidentiality.
-33-
Document No. 51 in the Vaughn index, for example, was
withheld based solely on Exemption 7(D). The full description
for the document is as follows:
Third party individual correspondence to AUSA regarding
draft declaration of third party individual witness
statements confidentially obtained. Source identified
as confidential elsewhere. (WIF)
The entry does not indicate where in the record this source was
identified as confidential. It could have been referring, for
example, to the immediately preceding entry, for Document No. 50.
That entry, however, concerns a 10-page cover letter and attached
letter described as follows:
Third party individual correspondence to AUSA regarding
attached handwritten letter and notes of third party
source of information gathered in course of
investigation. Implied confidentiality based upon
source and relationship to investigation. Refers to
not being at liberty to disclose source. (WIF).
We do not believe it is sufficient, under Landano, to invoke
Exemption 7(D) by stating generally that confidentiality was
implied from a relationship between the author of the document
and the investigation. The Supreme Court's Landano decision
clearly contemplates that a claim of implied confidentiality
ordinarily will require disclosure of the specific nature of the
factors urged in support of the implication, such as the type of
crime or the source's relationship to it. Only in this way will
the requester have a "realistic opportunity" to develop an
argument that the circumstances do not support an inference of
confidentiality, see Landano, 113 S. Ct. at 2024.
-34-
Thus, the government must provide more detail to meet its
burden of demonstrating that Document No. 50 falls within
Exemption 7(D).23 Document No. 51 is obviously likewise
deficient. Similar problems exist in other entries, including
Nos. 55, 60, 62, 67, 70, 76, 92, 93, 94, 97, 112, 113, 122-23,
127 and 129.24 We agree with the district court, however, that
an investigator's policy of affording confidentiality in
interviews is an adequate basis upon which the government may
consider the information provided to the investigator to be
confidential. See, e.g., Document Nos. 7 and 19. We suspect
that, in such cases, the government at the time of the document
search rarely would be in a position to learn the precise nature
of any discussion concerning confidentiality between the
investigator and interviewee. We think it reasonable to presume,
based on the investigator's policy, that he or she had given an
assurance of confidentiality.
IV. Where Do We Go From Here?
Our conclusion that the government has failed to provide
adequate support for withholding many of the 191 documents listed
23 The government, of course, need not provide so much
detail that the confidentiality is destroyed. It must, however,
explain as specifically as possible why providing additional
information would jeopardize the confidentiality interest. If
the explanation is too sketchy, in camera review may be
necessary.
24 We contrast these entries with those containing facts
providing a rationale for the inference of confidentiality, such
as No. 13 (author incarcerated); No. 100 (communication between
husband and wife); No. 101 (threats of harm and harassment); Nos.
102-03 (death threat), No. 120 (threatened harm)
-35-
in the Vaughn index requires that we vacate the summary judgment
for the agency and return the case to the district court for
further proceedings.
What precisely should happen upon remand we leave to the
district court's discretion. We offer a few thoughts, however,
about what occurs to us as a logical and appropriate course of
action. The court may wish to begin by asking the parties to
submit a brief statement identifying those documents it believes
need further justification in light of our decision. Aided by
these, the court could make its own determination of the
documents needing additional review, and then direct the
government to revise its submissions with respect to only those
specific records. Any dispute as to whether other entries should
be included could be raised at that time.
In any such proceeding, we assume the good faith and
reasonable cooperation of the requesting party as well as of the
government. Indeed, the workability of FOIA depends largely upon
the responsible, as well as responsive, efforts of the parties.
If, after the government has given additional attention to
the specified documents, the index remains opaque with respect to
certain documents and no other support is provided, the court has
various options for proceeding. It could choose to permit
discovery limited to specified documents, it could conduct an in
-36-
camera review of selected documents, it could order release of
somedocuments,or itcould directacombination ofthese procedures.25
We recognize that the Department already has provided a
significant amount of information to the Church, and we do not
minimize its effort. Its obligation, however, is to provide
enough information about each document to permit "effective
advocacy" by the requester:
[T]he [agency] must bear in mind that the purpose of
the index is not merely to inform the requester of the
agency's conclusion that a particular document is
exempt from disclosure under one or more of the
statutory exemptions, but to afford the requester an
opportunity to intelligently advocate release of the
withheld documents and to afford the court an
opportunity to intelligently judge the contest.
Senate of Puerto Rico, 823 F.2d at 979.
The judgment of the district court therefore is AFFIRMED as
to the adequacy of the search. The judgment is otherwise
25 The Church on appeal has made a broad challenge to the
adequacy of the government's explanations for withholding
documents, and has not argued about the merits of the withholding
decisions for those documents for which the index and affidavits
are sufficiently detailed. We likewise have focused on the
general adequacy of the showing, and have not considered the
merits of any particular withholding decision. We note, however,
that many of the index entries appear to support nondisclosure of
the documents, and we expect that the district court on remand
will simply reaffirm its previous determinations that those
documents are exempt from release.
We also have not considered the Church's contention that the
Department improperly referred approximately 300 pages of
material originating from other agencies to those agencies for
processing. The issue was not raised in the Church's opposition
to the motion for summary judgment, and we therefore decline to
consider it here. The district court may choose to take up this
matter on remand.
-37-
VACATED, and the case REMANDED for further proceedings consistent
with this decision. No costs.
-38-