Cottone, Salvatore v. Reno, Janet

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 1, 1999 Decided October 26, 1999

No. 98-5497

Salvatore Cottone,
Appellant

v.

Janet Reno, Attorney General of the United States
Department of Justice,
Appellee

Appeal from the United States District Court
for the District of Columbia
(No. 94cv01598)

Edwin E. Huddleson, III argued the cause and filed the
briefs for appellant.

David T. Smorodin, Assistant United States Attorney,
argued the cause for appellee. With him on the brief were
Wilma A. Lewis, United States Attorney, and R. Craig
Lawrence, Assistant United States Attorney.

 Before: Edwards, Chief Judge, Wald and Williams,
Circuit Judges.

Opinion for the Court filed by Circuit Judge Wald.

Wald, Circuit Judge: The principal question in this case is
whether wiretapped recordings, otherwise exempt from dis-
closure under the Freedom of Information Act ("FOIA"),
must nevertheless be released when a requester precisely
identifies specific tapes that have been introduced into evi-
dence and played in open court during a public criminal trial.
We hold that unless the government can rebut such a specific
showing by demonstrating that the recordings have since
been destroyed or otherwise removed from the public record,
they must be released under FOIA. We accordingly reverse
the judgment of the district court to the contrary. Moreover,
because the district court neglected to address whether the
government properly withheld other requested tape record-
ings, we must remand for further proceedings.

I. Background

Arising from a criminal investigation of the Colombian and
Sicilian Mafia's involvement in the Northern Virginia-
Washington, D.C. drug trade, the government successfully
prosecuted appellant Salvatore Cottone on fourteen counts of
drug and racketeering-related offenses. See United States v.
Cottone, 928 F.2d 400, 1991 WL 34996 (4th Cir. 1991) (per
curiam) (table). Among the evidence that the government
marshaled during Cottone's trial were telephone conversa-
tions recorded by surreptitious wiretap and recorded conver-
sations procured by undercover agents wearing hidden re-
corders during face-to-face meetings with Cottone. In open
court, before the jury and the public gallery, the government
played these tapes and introduced them into evidence. As is
the practice when tapes are played at trial, however, the court
reporter did not transcribe the contents of the recorded
conversations into the trial transcript. Rather, with each
tape that the government played, the reporter indicated in
the transcript the precise date and time that the conversation
had been recorded, the unique identification number assigned

to that tape at trial, and noted that it had been "played for
the Court and jury." See, e.g., App. 104-06 (Tape T-101
recorded on Sept. 12, 1986 at 10:32 a.m.); App. 117 (Tape T-
102 recorded on Sept. 12, 1986 at 5:02 p.m.); App. 126-27
(Tape T-105 recorded on Sept. 30, 1986 at 5:45 p.m.); App.
129-31 (Tape T-107 recorded on Sept. 30, 1986 at 8:34 p.m.);
App. 144-45 (Tape T-108 recorded on January 12, 1987 at
12:36 p.m.). At no point during the trial or thereafter did the
government move to place these tapes under seal.

By letter dated January 27, 1992, Cottone tendered a FOIA
request to the Federal Bureau of Investigation ("FBI") for
copies of all documents and tape recordings cross-referenced
to his name, including those tapes that the government had
played for the jury during his trial. Although the FBI
eventually produced over 1300 pages of responsive docu-
ments, it disclosed in part only two tape recordings, each one
heavily redacted pursuant to Exemption 7(C), which insulates
from mandatory disclosure records or information compiled
for law enforcement purposes that, if produced, "could rea-
sonably be expected to constitute an unwarranted invasion of
privacy." 5 U.S.C. s 552(b)(7)(C). Invoking Exemption 3,
which protects information "specifically exempted from disclo-
sure" by another statute, 5 U.S.C. s 552(b)(3), the FBI
withheld in full all other responsive tape recordings. Unlike
the two redacted tapes that the FBI produced, these remain-
ing conversations had been obtained by wiretap pursuant to
Title III of the Omnibus Crime Control and Safe Streets Act
of 1968, Pub. L. No. 90-351, 82 Stat. 197 (codified as amended
at 18 U.S.C. ss 2510-2521 (1994 & Supp. IV 1998)) ("Title
III"), which, we have explained on several occasions, "falls
squarely within the scope of Exemption 3 because its lan-
guage clearly evinces Congress' intent that intercepted mate-
rial, except in a few well-defined circumstances, remain se-
cret." Davis v. United States Dep't of Justice, 968 F.2d 1276,
1280-81 (D.C. Cir. 1992) (quotation omitted); accord Lam
Lek Chong v. United States Drug Enforcement Admin., 929
F.2d 729, 733-34 (D.C. Cir. 1991).

Unsatisfied with the FBI's response to his FOIA request,
Cottone brought suit in the district court. With respect to

the two tapes that the FBI had redacted pursuant to Exemp-
tion 7(C), he argued that neither tape jeopardized any legiti-
mate privacy interest because those persons identified on the
tapes had either consented to disclosure or had died. As for
the remaining tapes putatively protected from disclosure
under Exemption 3, Cottone essentially maintained that the
government had waived its Exemption 3 claim once it placed
those tapes into the public domain by playing them to the
jury and admitting them into evidence during his criminal
trial. In its initial opinion adjudicating the parties' cross-
motions for summary judgment and then again in its opinion
disposing of Cottone's motion for reconsideration, the district
court rejected Cottone's waiver argument. Although ac-
knowledging that otherwise exempt materials lose their privi-
leged status under FOIA once they find their way into the
public domain, the district court found that Cottone had not
met his burden of "showing that there is a permanent record
of the exact portion" of the tapes that he requested. Cottone
v. FBI, Civ. No. 94-1598 (JR), slip op. at 3 (D.D.C. Oct. 7,
1998). Having determined that the FBI properly invoked
Exemption 3 to withhold the wiretapped recordings, the
district court granted the agency's motion for summary judg-
ment and dismissed the case. In neither of its opinions,
however, did the court address whether the FBI properly
invoked Exemption 7(C) to redact most of the two disclosed
tapes. To this date, the FBI has yet to submit an agency
affidavit and Vaughn index justifying its Exemption 7(C)
redactions.

II. Discussion

A. The Exemption 3 Withholdings

Two propositions, each firmly anchored in our prior FOIA
decisions, must be set forth at the outset. The first is that,
subject to an important, albeit narrow exception, the wire-
tapped recordings obtained pursuant to Title III that Cottone
requested are ordinarily exempt from disclosure under Ex-
emption 3, 5 U.S.C. s 552(b)(3). See Davis, 968 F.2d at
1280-81; Lam Lek Chong, 929 F.2d at 733-34. The second

proposition, however, is the exception that qualifies this oth-
erwise absolute rule. Under our public-domain doctrine,
materials normally immunized from disclosure under FOIA
lose their protective cloak once disclosed and preserved in a
permanent public record. See Niagara Mohawk Power Corp.
v. United States Dep't of Energy, 169 F.3d 16, 19 (D.C. Cir.
1999) (Exemption 4); Public Citizen v. Department of State,
11 F.3d 198, 201-03 (D.C. Cir. 1993) (Exemption 1); Davis,
968 F.2d at 1276 (Exemptions 3 & 7(C)); Afshar v. Depart-
ment of State, 702 F.2d 1125, 1130-34 (D.C. Cir. 1983) (Ex-
emptions 1 & 3). For as we have recently observed, "the
logic of FOIA" mandates that where information requested
"is truly public, then enforcement of an exemption cannot
fulfill its purposes." Niagara Mohawk, 169 F.3d at 19; see
also Davis, 968 F.2d at 1279 ("We have held, however, that
the government cannot rely on an otherwise valid exemption
claim to justify withholding information that has been 'official-
ly acknowledged' or is in the 'public domain.' ").

With these established principles of law in mind, we turn
now to examine whether the ordinarily exempt Title III-
wiretapped recordings that Cottone requested entered the
public domain and thereby shed their Exemption 3 protection.
On this issue, the party advocating disclosure bears the initial
burden of production; for were it otherwise, the government
would face the daunting task of proving a negative: that
requested information had not been previously disclosed. See
Niagara Mohawk, 169 F.3d at 19; Davis, 968 F.2d at 1279.
To satisfy his burden, Cottone must "point[ ] to specific
information in the public domain that appears to duplicate
that being withheld." Afshar, 702 F.2d at 1130.

This Cottone has done. As a threshold matter, our deci-
sions construing the venerable common-law right to inspect
and copy judicial records make it clear that audio tapes enter
the public domain once played and received into evidence.
See, e.g., In re National Broadcasting Co., 653 F.2d 609, 614
(D.C. Cir. 1981); United States v. Mitchell, 551 F.2d 1252,
1258 & n.21 (D.C. Cir. 1976), rev'd on other grounds sub nom.
Nixon v. Warner Communications, Inc., 435 U.S. 589 (1978).
We have long observed "the general rule ... that a trial is a

public event, and what transpires in the court room is public
property." In re National Broadcasting Co., 653 F.2d at 614
(internal quotations and brackets omitted); accord Craig v.
Harney, 331 U.S. 367, 374 (1947). Under this rule, we have
recognized that even after a trial has concluded, members of
the press may obtain copies of surreptitiously recorded audio
tapes that have been played in court and received into
evidence. See In re National Broadcasting Co., 653 F.2d at
614-16. Therefore, until destroyed or placed under seal,
tapes played in open court and admitted into evidence--no
less than the court reporter's transcript, the parties' briefs,
and the judge's orders and opinions--remain a part of the
public domain.

While our cases leave little doubt that audio tapes aired
publicly in open court become a part of the public domain, the
question remains whether Cottone has satisfied his "burden
of showing that there is a permanent public record of the
exact portions he wishes." Davis, 968 F.2d at 1280 (emphasis
added). The government maintains, and the district court
agreed, that our decision in Davis is dispositive. True, the
plaintiff in Davis, like Cottone, claimed that the public-
domain doctrine vitiated Exemption 3 protection for Title III-
wiretapped recordings that had been previously played in
open court during a criminal trial. But there the similarities
end. We rejected the plaintiff's waiver argument in Davis
because he could not identify which specific tapes had been
played during trial. Although the prosecutors had compiled a
"play list" of 163 excerpted tape recordings, not all were used,
"and apparently no one, including the court reporter, kept
any official record of the conversations played for the jury."
Id. at 1278. Under these circumstances, we concluded that it
simply was not enough "to show--as [Davis] ha[d] done--that
some of the tapes were played to shift the burden to the
government." Id. at 1280. Indeed, to have compelled disclo-
sure in the face of such uncertainty would have ignored the
"injury that disclosure might cause innocent third parties,"
who we believed, "should not suffer because neither the
government nor [the requester] can establish whether refer-
ences to them on the tapes are available elsewhere." Id.

 Unlike the situation we confronted in Davis, however,
Cottone has demonstrated precisely which recorded conversa-
tions were played in open court. Looking at the official
transcript of Cottone's trial, there are at least five audio tapes
that the court reporter specifically noted had been "played for
the Court and jury" and subsequently admitted into evidence.
And for each of these, the trial transcript clearly indicates the
precise date and time that the particular conversation was
recorded and the unique identification number assigned to the
tape. See, e.g., App. 104-06 (Tape T-101 recorded on Sept.
12, 1986 at 10:32 a.m.); App. 117 (Tape T-102 recorded on
Sept. 12, 1986 at 5:02 p.m.); App. 126-27 (Tape T-105 record-
ed on Sept. 30, 1986 at 5:45 p.m.); App. 129-31 (Tape T-107
recorded on Sept. 30, 1986 at 8:34 p.m.); App. 144-45 (Tape
T-108 recorded on January 12, 1987 at 12:36 p.m.). With
such a specific showing, we are not left to guess which tapes
have entered the public domain and which have not. In turn,
we may carefully tailor the FBI's disclosure duty to ensure
that we do not jeopardize the legitimate privacy interests of
innocent third parties whose names may be mentioned on
other Title III tapes never played during trial. Cottone,
therefore, has discharged his burden of production by point-
ing to specific tapes which, having been played in open court
and received into evidence, reside in the public domain and
mirror precisely the information that he has requested.

To be sure, we suggested in Davis that, to satisfy the
burden of production in public-domain cases, the FOIA re-
quester may have to produce a "hard copy" version of what
he requests. See Davis, 968 F.2d at 1280. Yet by no means
did Davis purport to establish a uniform, inflexible rule
requiring every public-domain claim to be substantiated with
a hard copy simulacrum of the sought-after material. Of
course, it will very often be the case that some type of hard
copy facsimile will be the only practicable way for a FOIA
requester to demonstrate that the specific information he has
solicited has indeed circulated into the public domain. And
this is as it should be; for while the "logic of FOIA" postu-
lates that an exemption can serve no purpose once informa-
tion--including sensitive law-enforcement intelligence--be-

comes public, Niagara Mohawk, 169 F.3d at 19, we must be
confident that the information sought is truly public and that
the requester receive no more than what is publicly available
before we find a waiver. See Fitzgibbon v. CIA, 911 F.2d 755,
765 (D.C. Cir. 1990); Afshar, 702 F.2d at 1130-32; Military
Audit Project v. Casey, 656 F.2d 724, 752 (D.C. Cir. 1981).
But here it would be an empty formalism to insist that
Cottone produce a hard-copy, verbatim transcription of the
audio tapes to prove which tapes were played at trial when he
has already produced a certified transcript from his trial that
indicates precisely which tapes were, in fact, played. Phrased
in the parlance of our public-domain cases, Cottone has
"point[ed] to specific information in the public domain that
appears to duplicate that being withheld." Afshar, 702 F.2d
at 1130.

Once the FOIA requester has carried his burden of produc-
tion, it is up to the government, if it so chooses, to rebut the
plaintiff's proof by demonstrating that the specific tapes or
records identified have since been destroyed, placed under
seal, or otherwise removed from the public domain. The
FBI, however, has made no such showing here. Nothing in
the record suggests that the government, either during or
after Cottone's trial, moved to place under seal the tapes that
it played in court. Nor is there any indication that the tapes
Cottone has identified have since been destroyed. Indeed,
the FBI operates under a statutory mandate to preserve all
Title III-wiretapped recordings for ten years. See 18 U.S.C.
s 2518(8)(a). Therefore, because Cottone has identified spe-
cific audio tapes in the public domain that duplicate what he
has requested, and because the FBI has not rebutted this
showing, we conclude that Exemption 3 is inapplicable and
reverse the judgment of the district court accordingly.

Our decision, however, extends only to those tapes that
were played in open court. To the extent that Cottone seeks
Title III-wiretapped recordings that were not played in court
but were simply provided to his counsel as Brady material,
Exemption 3 remains inviolate. This is so because a constitu-
tionally compelled disclosure to a single party simply does not
enter the public domain. Moreover, even were these tapes

somehow understood to reside in the public domain, Cottone
certainly has not satisfied his burden of production and shown
which specific tapes the government tendered to his attorney
during pretrial discovery. Therefore, insofar as Cottone
seeks any Title III-wiretapped tapes that were not played in
open court and received into evidence, the judgment of the
district court is affirmed.

B. The Exemption 7(C) Withholdings

In his cross-motion for summary judgment Cottone argued
that the FBI had improperly invoked Exemption 7(C) to
redact virtually all portions of the two audio tapes that the
agency had released. For some reason, the district court
never ventured beyond Cottone's Exemption 3 objections,
dismissing the case without evaluating the propriety of the
FBI's Exemption 7(C) claim. Notwithstanding the district
court's oversight, on appeal the FBI maintains that the case
was properly dismissed anyway since, by its own determina-
tion, it validly applied Exemption 7(C).

Even were we inclined to review the agency's Exemption
7(C) redactions without first remanding to the district court,
the present record would preclude us from meaningfully
exercising our power of judicial review. To justify its invoca-
tion of a particular exemption, the agency must append a
declaration to its motion for summary judgment that "pro-
vide[s] detailed and specific information demonstrating 'that
material withheld is logically within the domain of the exemp-
tion claimed.' " Campbell v. United States Dep't of Justice,
164 F.3d 20, 30 (D.C. Cir. 1999) (quoting King v. United
States Dep't of Justice, 830 F.2d 210, 217 (D.C. Cir. 1987));
see also Vaughn v. Rosen, 484 F.2d 820, 827 (D.C. Cir. 1973).
This the FBI has completely failed to do. All that the agency
can point to is an unsworn cover letter sent to Cottone from
an official with the FBI that conclusorily asserts that "[t]he
long pauses constitute exempt information, much of it per-
taining to third parties." App. 181. We, therefore, must
remand this matter to the district court, which should instruct
the FBI to prepare a Vaughn index and declaration that
"supply a relatively detailed justification, specifically identify-

ing the reasons why a particular exemption is relevant and
correlating those claims with the particular part of [the]
withheld [tape] to which they apply." King, 830 F.2d at 224
(internal quotation omitted).

III. Conclusion

For the foregoing reasons, we reverse the district court's
judgment upholding the FBI's decision to withhold under
Exemption 3 audio tapes that Cottone has precisely identified
in the public domain, and remand with instructions to compel
the FBI to release those tapes. In all other respects, we
affirm the district court's judgment that Exemption 3 applies
to Title III-wiretapped conversations. On remand, the dis-
trict court should also order the FBI to prepare a Vaughn
index justifying its redactions under Exemption 7(C).

So ordered.