Schrecker v. U.S. Department of Justice

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 19, 2001 Decided June 26, 2001

No. 00-5033

Ellen W. Schrecker,
Appellant

v.

U.S. Department of Justice,
Appellee

Appeal from the United States District Court
for the District of Columbia
(No. 95cv00026)

James H. Lesar argued the cause and filed the briefs for
appellant.

Michael J. Ryan, Assistant U.S. Attorney, argued the
cause for appellee. With him on the briefs were Wilma A.
Lewis, U.S. Attorney at the time the briefs were filed, and R.
Craig Lawrence, Assistant U.S. Attorney.

 Before: Williams, Ginsburg and Garland, Circuit Judges.

Opinion for the Court filed by Circuit Judge Ginsburg.

Ginsburg, Circuit Judge: Ellen Schrecker appeals the
judgment of the district court rejecting her claims that the
Federal Bureau of Investigation violated the Freedom of
Information Act, 5 U.S.C. s 552, by failing to conduct an
adequate search for information responsive to her FOIA
request, and that both the FBI and the National Labor
Relations Board violated that Act by improperly withholding
responsive information they had located. See Schrecker v.
U.S. Dep't of Justice, 74 F. Supp. 2d 26 (D.D.C. 1999). We
reverse with respect both to the adequacy of the search and
to one aspect of Schrecker's claim regarding Exemption 7(C)
of the FOIA. With respect to her other claims, we affirm.

I. Background

In October 1988 Schrecker filed a FOIA request seeking
information regarding Gerhard Eisler and Clinton Jencks,
suspected communists whom the FBI had investigated in the
1940s and 1950s. The FBI released some documents to
Schrecker and withheld others pursuant to various exemp-
tions to the FOIA. In 1994 Schrecker filed a new request for
the same information and, less than two months later, initi-
ated this lawsuit.

In 1998 the district court directed the FBI to reprocess all
responsive material. Schrecker v. U.S. Dep't of Justice, 14
F. Supp. 2d 111, 117 (D.D.C. 1998) ("Under the FBI's own
admission, a 'significant portion,' of its withholdings may have
been inappropriate.... [T]his court orders that the defen-
dant reprocess all withholdings and submit appropriate affi-
davits regarding any future withholdings"). After reprocess-
ing the responsive material, the Government prepared a
Vaughn index stating, with respect to a sample of the disput-
ed material, its basis for withholding each item. Subsequent-
ly, the district court granted the Government's motion for
summary judgment.

 II. Analysis

Upon appeal Schrecker argues that the Government con-
ducted an inadequate search for documents and improperly
withheld information pursuant to a number of exemptions to
the FOIA.

A. Adequacy of Search

Schrecker argues the FBI conducted an inadequate search
because it did not search for "ticklers." As this court ex-
plained in Campbell v. United States, 164 F.3d 20, 27 n.1
(1998):

A "tickler" is a duplicate file containing copies of docu-
ments, usually kept by a supervisor. Such files can be of
interest to a FOIA requester because they could contain
documents that failed to survive in other filing systems
or that include unique annotations.

The Government acknowledges both that there were at one
time ticklers for certain FBI files responsive to Schrecker's
request and that it did not search for them, but it argues that
it did not need to do so because ticklers are not indexed to
the FBI's Central Records System. We are not a little
dismayed by the Government's position, for we rejected this
self-same argument in Campbell. Id. at 28 (holding that
where FOIA request includes ticklers and agency's initial
search reveals that responsive ticklers existed at one time,
then a search for ticklers is presumptively necessary). As
the Government must know, this panel is bound not only by
good sense but also by circuit law to reject this argument
once again. See, e.g., Brewster v. Commissioner of Internal
Revenue, 607 F.2d 1369, 1373-74 (D.C. Cir. 1979) (panels
bound to follow circuit precedent until en banc court or
Supreme Court overrules that precedent).

Next the Government argues it need not search for the
ticklers responsive to Schrecker's request because, under
FBI policy during the time it investigated Eisler and Jencks,
ticklers were to be retained for only 60 days. The Govern-
ment acknowledges that the FBI granted requests to retain
some ticklers past the 60 day mark, but it explains that even

those documents were retained "with the understanding that
they will be disposed of as soon as they no longer serve a
useful purpose." See, e.g., Memoranda to Mr. Boardman
from A.H. Belmont re: Retention of Ticklers, Domestic Intel-
ligence Division, dated August 5 and November 9, 1955.
Schrecker points out, however, that there is no evidence the
reprieved documents were ever destroyed despite the FBI's
practice of "recording the destruction of records." The Gov-
ernment does not rebut this argument and, without such
evidence, the standard "no longer serv[ing] a useful purpose"
is simply too vague to obviate the need for a search. Under
that standard, the ticklers might well be extant in the files of
some cautious bureaucrat.

Finally, the Government argues that searching for ticklers
would be unduly burdensome. We readily acknowledge that
"there are some limits on what an agency must do to satisfy
its FOIA obligations." Nation Magazine, Washington Bu-
reau v. U.S. Customs Serv., 71 F.3d 885, 891-892 (D.C. Cir.
1995) (holding search through 23 years of unindexed files
would impose unreasonable burden upon agency). Schrecker
claims, however, and the Government does not deny, that in
other cases the FBI has managed to locate ticklers:

For example, in connection with the FBI's investigation
into the assassination of Dr. Martin Luther King, Jr., a
file of several hundred tickler copies was maintained by
FBI Supervisor Richard Long.... In another instance,
the FBI processed some twenty volumes of ticklers
compiled in connection with the assassination of Presi-
dent John F. Kennedy.

Nor does the Government deny that the Bureau retains the
files of higher-level supervisors after they depart, or that in
the past it has managed to locate ticklers in the files of such
higher-ups. It is not improbable, therefore, that the Bureau
both has the files of some supervisors who received ticklers in
the Eisler and Jencks investigations and that those files are
indexed and include the responsive ticklers. Schrecker ob-
serves further that "[s]ome of the files of the high supervisory
officials listed on the Eisler and Jencks records as recipients

of ticklers may already have been processed for public release
and can be searched for ticklers pertaining to these cases."
In response to this observation, the Government raises the
prospect that a search for ticklers might "compel[ ] an
agency-wide, desk-to-desk, manual search for ticklers," but it
points to nothing in the record to suggest that the search
actually required will be unduly burdensome. Accordingly,
we reverse the judgment of the district court on this claim.

B. Exemption 1

Exemption 1 to the FOIA permits an agency to withhold
information if it is "specifically authorized under criteria
established by an Executive order" to do so "in the interest of
national defense or foreign policy." 5 U.S.C. s 552(b)(1). In
this case, Schrecker argues that the FBI erred in withholding
information pursuant to Exemption 1 because, among other
things, it withheld documents related to the identity of confi-
dential sources under the theory that "[a]ll sources, dead or
alive, active or inactive, must be protected for all time be-
cause otherwise current and potential sources will fear revela-
tion of their identities at some point." According to Schreck-
er, this rationale for withholding is too broad because it would
"recreate[ ] the presumption of damage to national security
due to disclosure of an intelligence source which EO 12958
eliminated."

The Government responds that it did not apply a presump-
tion but, rather, pursuant to Executive Order 12958 consid-
ered the potential harm of releasing information about the
sources implicated in this case and concluded the information
should be withheld in order to protect national security.
Specifically, the Government's declarant, Scott Hodes, testi-
fied that he:

personally and independently.... determined that the
remaining portions of classified information ... are ex-
empt from automatic declassification pursuant [to] EO
12958, s 3.4(b) as the release of the specific information
should be expected to reveal the identity of a confidential
human source ... or reveal the identity of a human

 intelligence source when the unauthorized disclosure of
that source would clearly and demonstrably damage the
national security interests of the United States.... [by
harming] the FBI's ability to ... continuously recruit
sources for current and future use.

Second Hodes Declaration at 13-14; see also Third Hodes
Declaration at p p 3, 7.

While the affidavit is not entirely free of ambiguity, we
think it is most naturally to be read, as the Government
suggests, to say the FBI considered each source -- confiden-
tial or otherwise -- and determined in each case that release
of the information in question would damage national security
by dissuading current and future sources from cooperating.
Accordingly, we affirm the judgment with regard to informa-
tion related to the identity of intelligence sources.

C. Exemption 7(C)

Exemption 7(C) permits an agency to withhold information
compiled "for law enforcement purposes" if that information
"could reasonably be expected to constitute an unwarranted
invasion of personal privacy." 5 U.S.C. s 552(b)(7)(C). In
determining whether release of particular information is an
"unwarranted" invasion of privacy, an agency must balance
the type of privacy interest at stake against the public
interest in release of the type of information involved. See
U.S. Dep't of Justice v. Reporters Comm. for Freedom of the
Press, 489 U.S. 749 (1989).

Schrecker argues that in this case the FBI improperly
withheld information pursuant to Exemption 7(C) in part
because it failed to conduct an adequate investigation into
whether the individuals whose privacy might be invaded are
deceased. As the FBI concedes, the death of the subject of
personal information does diminish to some extent the privacy
interest in that information, though it by no means extin-
guishes that interest; one's own and one's relations' interests
in privacy ordinarily extend beyond one's death. See, e.g.,
Swidler & Berlin v. U.S., 524 U.S. 399, 406 (1998) ("the
attorney-client privilege continues after death"); Accuracy in

Media, Inc. v. National Park Serv., 194 F.3d 120, 121 (D.C.
Cir. 1999) (noting precedent under FOIA holding privacy
interests continue after death). The fact of death, therefore,
while not requiring the release of information, is a relevant
factor to be taken into account in the balancing decision
whether to release information.

The FBI explained as follows its efforts to establish death
in this case: "if we were aware that an individual was 100
years of age or older, or we were able to determine from Who
Was Who or from other readily available information that
individuals were deceased, we released their identities." Sec-
ond Hodes Decl., p 40. Upon inquiry at oral argument, the
Government represented that the "other readily available
information" to which the quoted affidavit refers includes the
Social Security database and the agency's internal records.
Although we find support in the record for the latter, we
cannot fairly read the vague wording used by the declarant
under oath as a statement that the Bureau consulted the
Social Security database. Without confirmation that the Gov-
ernment took certain basic steps to ascertain whether an
individual was dead or alive, we are unable to say whether the
Government reasonably balanced the interests in personal
privacy against the public interest in release of the informa-
tion at issue. We therefore reverse this aspect of the judg-
ment; on remand the Government may document what "other
readily available information" it consulted, and the district
court can decide in the first instance whether the Government
did all it should have done, and whether it may withhold the
disputed information pursuant to Exemption 7(C).

Relatedly, Schrecker argues that the Government failed to
weigh the privacy interests of the people it assumed were
alive, opting instead for a per se rule of withholding. The
Government denies using a per se rule and points us to the
Second Hodes Declaration at p 40:

In asserting this exemption, each piece of information
was scrutinized to determine the nature and strength of
the privacy interest of any individual whose name and/or
identifying data appears in the documents at issue. In

 withholding the information, the individual's privacy in-
terest was balanced against the public's interest in disclo-
sure. In each instance where information was withheld,
it was determined that individual privacy interests were
not outweighed by any public interest.

Although the next few sentences of the declaration appear to
state general principles rather than relate how the facts of
this case were weighed in the balance, the quoted passage
establishes that "in each instance where information was
withheld," the agency considered the private and public inter-
ests at stake. We therefore affirm the judgment of the
district court with regard to this claim.

III. Conclusion

Schrecker raises a number of other arguments against the
Government's invocation of various exemptions to the FOIA,
all of which we reject for substantially the reasons given by
the district court. See Schrecker, 74 F. Supp. 2d 26. With
respect both to the adequacy of the search for ticklers and to
the applicability of Exemption 7(c), we reverse the judgment
of the district court and remand this matter for further
proceedings consistent with this opinion. In all other re-
spects, the judgment is affirmed.

So ordered.