Spirko v. United States Postal Service

                        United States Court of Appeals


                     FOR THE DISTRICT OF COLUMBIA CIRCUIT


               Argued May 11, 1998       Decided July 7, 1998 


                                 No. 97-5153


                            John G. Spirko, Jr., 

                                  Appellant


                                      v.


                        United States Postal Service, 

                                   Appellee


                Appeal from the United States District Court 

                        for the District of Columbia 

                               (No. 96cv00458)


     Dale A. Baich, Assistant Federal Public Defender for the 
District of Arizona, argued the cause and filed the briefs for 
appellant.

     Charles F. Flynn, Assistant U.S. Attorney, argued the 
cause for appellee, with whom Wilma A. Lewis, U.S. Attor-
ney, and R. Craig Lawrence, Assistant U.S. Attorney, were 
on the brief.



     Before:  Henderson, Rogers and Garland, Circuit Judges.

     Opinion for the Court filed by Circuit Judge Rogers.

     Rogers, Circuit Judge:  The main issue in this appeal is 
whether the district court abused its discretion in conducting 
an in camera inspection of documents requested under the 
Freedom of Information Act, 5 U.S.C. s 552 (1994) ("FOIA"), 
without first ordering the agency to produce a more detailed 
description of the withheld documents in accordance with 
Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973).  John G. 
Spirko, Jr., appeals from the grant of summary judgment to 
the United States Postal Service in his FOIA action, contend-
ing that the Postal Service did not satisfy its obligation under 
Vaughn to justify its decision to withhold requested docu-
ments, and that the district court erred by reviewing the 
documents in camera rather than ordering further Vaughn 
indexing by the agency.  Spirko also contends that the dis-
trict court, after conducting its in camera inspection, erred in 
finding that certain documents were properly withheld pursu-
ant to Exemption 7(C) of FOIA, which allows agencies to 
withhold documents compiled for law enforcement purposes 
whose disclosure "could reasonably be expected to constitute 
an unwarranted invasion of personal privacy."  5 U.S.C. 
s 552(b)(7)(C).  Alleging that the Postal Service withheld 
exculpatory evidence during his criminal trial and engaged in 
other wrongdoing, he contends that the public interest in 
exposing this misconduct is sufficient to remove the docu-
ments from Exemption 7(C).  We find no abuse of discretion 
by the district court in deciding that in camera review would 
provide the most expeditious and fair resolution of Spirko's 
FOIA request.  Furthermore, we agree with the district 
court that the requested documents are unrelated to Spirko's 
allegations of agency misconduct and, therefore, the docu-
ments were properly withheld under Exemption 7(C).  Ac-
cordingly, we affirm.

                                      I.


     In 1984, John Spirko was convicted in a state court for the 
abduction and murder of Betty Jane Mottinger, the Postmas-



ter of Elgin, Ohio. One alleged co-conspirator, Delaney Gib-
son, Jr., was also indicted, but has yet to be tried.  According 
to the Postal Service, other suspects remain at large, and the 
agency's criminal investigation remains open.

     On March 6, 1992, Spirko requested access to documents 
held by the Postal Service concerning its investigation of the 
Mottinger murder.  As subsequently explained in his court 
pleadings, he was evidently searching for exculpatory evi-
dence that the Postal Service allegedly withheld at his trial.  
The requested records included information contained in the 
"desk file" of Inspector Paul M. Hartman, the case agent for 
the investigation, and forty pages of records referred to the 
Postal Service by the Federal Bureau of Investigation 
("FBI") for processing.  After an initial determination by the 
agency and an administrative appeal by Spirko, the Postal 
Service eventually released approximately two hundred 
pages, some of which had been redacted to protect the 
identities of suspects, witnesses, and law enforcement offi-
cials.1  The released documents included all forty pages from 
the FBI referral;  however, the agency withheld the majority 
of Inspector Hartman's desk file.

     Thereafter, Spirko filed suit under the Freedom of Infor-
mation Act for access to the remaining documents.  The 
Postal Service moved for summary judgment, relying upon a 
declaration by Inspector Hartman that detailed the contents 
of his desk file and justified the withholding of certain docu-
ments under various exemptions to FOIA disclosure require-
ments.2  Finding Inspector Hartman's declaration inade-
quate, Spirko moved to compel the Postal Service to submit 
an index with more specific details regarding the nature and 
approximate content of the withheld documents, pursuant to 
Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973).  The district 
court denied Spirko's motion and instead, relying on Quion 

__________
     1  On appeal, Spirko does not challenge the propriety of the 
redactions.

     2  Specifically, Inspector Hartman claimed that he had properly 
withheld documents from his desk file under Exemptions 7(A), (C), 
(D), and (F).  See 5 U.S.C. s 552(b)(7).



v. FBI, 86 F.3d 1222 (D.C. Cir. 1996), ordered the Postal 
Service to submit the withheld documents from Inspector 
Hartman's desk file for in camera examination.  After re-
counting the withheld documents and releasing several addi-
tional pages, the Postal Service ultimately delivered 472 
pages for review by the court along with an affidavit specify-
ing the page numbers of the documents it continued to 
withhold and the claimed exemptions for each withheld page.

     Following in camera review, the district court granted the 
Postal Service's motion for summary judgment on all but 
three pages.  The court found that most of the pages were 
covered by Exemption 7(C), which exempts information com-
piled for law enforcement purposes that "could reasonably be 
expected to constitute an unwarranted invasion of personal 
privacy." 3  5 U.S.C. s 552(b)(7)(C).  These pages were "com-
prised of hand-written notes about suspects and law enforce-
ment records, primarily in the form of 'rap sheets,' finger-
prints, and photos."  The court also found that several pages 
had been properly withheld under Exemption 7(F), which 
covers documents whose release "could reasonably be expect-
ed to endanger the life or physical safety of any individual."  
Id. s 552(b)(7)(F).  Nevertheless, the district court concluded 
that the government had failed to sustain its claim under 
Exemption 7(D) that the release of three particular pages 
might "reasonably be expected to disclose the identity of a 
confidential source ... [or] information furnished by a confi-
dential source," id. s 552(b)(7)(D), and ordered the Postal 
Service to make a particularized showing "as to how release 
of [the] pages ... will either result in the disclosure of a 
confidential source or reveal information furnished by a confi-
dential source."  Ultimately, the Postal Service released two 

__________
     3  The district court found that the Postal Service had failed to 
sustain its claim that many of the documents fell under Exemption 
7(A), which covers "records or information compiled for law enforce-
ment purposes" whose release "could reasonably be expected to 
interfere with enforcement proceedings."  5 U.S.C. s 552(b)(7)(A).  
These documents, however, were fully covered by Exemption 7(C).  
See id. s 552(b)(7)(C).



of the pages in their entirety and the third in redacted form, 
and the district court upheld the redactions as proper.

     Spirko moved to amend or alter the judgment, pursuant to 
Federal Rule of Civil Procedure 59(e), asserting that he could 
provide new evidence of wrongdoing by the Postal Service in 
the investigation of the Mottinger murder and his subsequent 
prosecution.  Spirko claimed that the Postal Service had 
withheld exculpatory evidence from him during the course of 
his criminal trial, in violation of Brady v. Maryland, 373 U.S. 
83 (1963), and also alluded to other instances of misconduct at 
the Cleveland, Ohio, Post Office that had been a subject of 
congressional investigation.  This evidence of wrongdoing, 
Spirko argued, supported his claim that releasing the docu-
ments withheld under Exemption 7(C) would promote the 
public interest by "shedding light on the improper operations 
and questionable investigative activities" of the Postal Ser-
vice.  The district court agreed that this was "new evidence" 
but, relying on its prior in camera inspection of the disputed 
documents, stated that the documents "do not confirm or 
refute the allegations of government misconduct."  Thus, the 
court found no reason to alter its ruling that the withholding 
was proper.

                                     II.


     Spirko's primary contention on appeal is that the district 
court erred by conducting an in camera review of the with-
held documents without first requiring a more detailed affida-
vit from the Postal Service.  He maintains that an in camera 
inspection is not an adequate substitute for a sufficient 
Vaughn index, see Schiller v. NLRB, 964 F.2d 1205, 1209 
(D.C. Cir. 1992);  Lykins v. United States Dep't of Justice, 
725 F.2d 1455, 1463 (D.C. Cir. 1984), and that we should 
remand this case to the district court with instructions to 
order the Postal Service to submit a more detailed index.

     In 1974, Congress amended FOIA to authorize district 
courts to "examine the contents of" requested records "in 
camera to determine whether such records or any part there-
of shall be withheld."  5 U.S.C. s 552(a)(4)(B).  This court 



has repeatedly explained that "[t]he decision whether to 
perform in camera inspection is left to the 'broad discretion 
of the trial court judge.' "   Lam Lek Chong v. DEA, 929 F.2d 
729, 735 (D.C. Cir. 1991) (quoting Carter v. United States 
Dep't of Commerce, 830 F.2d 388, 392 (D.C. Cir. 1987));  
accord Quion, 86 F.3d at 1227;  Center for Auto Safety v. 
EPA, 731 F.2d 16, 25 (D.C. Cir. 1984).  Accordingly, we 
review the district court's decision to inspect the documents 
in camera only for abuse of discretion.  See Armstrong v. 
Executive Office of the President, 97 F.3d 575, 577-78 (D.C. 
Cir. 1996);  Center for Auto Safety, 731 F.2d at 22.

     Spirko contends that the district court abused its discretion 
by resorting to in camera review so hastily.  By inspecting 
the documents in camera instead of ordering the government 
to submit a properly detailed index, Spirko contends, the 
court risks relieving the government of its obligations under 
Vaughn, eliminating the adversary role of the requester in 
defining the nature of the documents sought, and placing an 
undue burden on judicial resources.  See Quion, 86 F.3d at 
1228;  Lykins, 725 F.2d at 1463;  Vaughn, 484 F.2d at 824-25.  
Thus, Spirko warns, the district court in the instant case 
"may have sanctioned a procedure which will encourage the 
government to file less-than-sufficient Vaughn indices" and 
relieve the burden on government agencies to analyze and 
justify the nondisclosure of withheld information.  See 5 
U.S.C. s 552(a)(4)(B);  Lykins, 725 F.2d at 1463;  Vaughn, 
484 F.2d at 825-26.

     Unlike the instant case, FOIA requesters commonly appeal 
a district court's refusal to inspect documents in camera 
despite the alleged insufficiency of the Vaughn index.   See, 
e.g., PHE, Inc. v. Dep't of Justice, 983 F.2d 248, 251-53 (D.C. 
Cir. 1993);  Lam Lek Chong, 929 F.2d at 735;  Carter, 830 
F.2d at 392-94.  The requester usually prefers such an 
examination since the alternative is the district court's sole 
reliance on the affidavits and descriptions of the agency.  
Indeed, on occasion this court has remanded FOIA cases to 
the district court for failing to conduct an in camera examina-
tion.  See, e.g., Quion, 86 F.3d at 1232;  PHE, Inc., 983 F.2d 
at 253;  Allen v. CIA, 636 F.2d 1287, 1299-1300 (D.C. Cir. 



1980).  In doing so, the court has specifically noted "that in 
camera inspection may be particularly appropriate when ei-
ther the agency affidavits are insufficiently detailed to permit 
meaningful review of exemption claims or there is evidence of 
bad faith on the part of the agency," when the number of 
withheld documents is relatively small, and "when the dispute 
turns on the contents of the withheld documents, and not the 
parties' interpretations of those documents."  Quion, 86 
F.3d at 1228;  see also Carter, 830 F.2d at 392-93.  These 
factors identify circumstances under which it would be error 
for the district court not to review the documents in camera, 
but they do not present the only circumstances under which 
the district court may do so.  As the court explained in Ray 
v. Turner, 587 F.2d 1187 (D.C. Cir. 1978) (per curiam), "[i ]n 
camera inspection does not depend on a finding or even 
tentative finding of bad faith.  A judge has discretion to order 
in camera inspection on the basis of an uneasiness, on a 
doubt that he wants satisfied before he takes responsibility 
for a de novo determination."  Id. at 1195.  "The ultimate 
criterion is simply this:  Whether the district judge believes 
that in camera inspection is needed in order to make a 
responsible de novo determination on the claims of exemp-
tion."  Id. Thus, "in cases in which a look at the withheld 
material itself would be useful, we have fully approved in 
camera examination of the withheld material by the trial 
court."  Lykins, 725 F.2d at 1463.

     With such broad discretion vested in the district court, this 
court has yet to identify particular circumstances under which 
in camera inspection would be inappropriate, although sever-
al concerns counsel against hasty resort to in camera review:  
"in camera review should not be resorted to as a matter of 
course, simply on a theory that 'it can't hurt.' "  Quion, 86 
F.3d at 1228 (quoting Ray, 587 F.2d at 1195);  see also PHE, 
Inc., 983 F.2d at 253.  Not only may in camera inspection 
place a substantial burden on judicial resources, see Quion, 
86 F.3d at 1228;  Allen, 636 F.2d at 1298;  Vaughn, 484 F.2d 
at 825, but when the agency has not satisfied its Vaughn 
indexing duties, in camera review also "deprives the FOIA 
requester of an opportunity to present his interpretation of 


the withheld documents," Quion, 86 F.3d at 1228.  Indeed, 
absent some "adversary testing," the district court may be at 
a disadvantage in evaluating the government's characteriza-
tions of the withheld documents.  Vaughn, 484 F.2d at 825, 
828;  see also Lykins, 725 F.2d at 1463.  Furthermore, this 
court has expressed concern "that a decision based on an in 
camera review may have little precedential value," Quion, 
86 F.3d at 1228, and may not be amenable to meaningful 
review by an appellate court.  See Vaughn, 484 F.2d at 825;  
cf. Summers v. Department of Justice, 140 F.3d 1077, 1080-
81 (D.C. Cir. 1998).

     Consequently, this court has repeatedly observed that a 
district court should not undertake in camera review of 
withheld documents as a substitute for requiring an agency's 
explanation of its claimed exemptions in accordance with 
Vaughn.  See, e.g., PHE, Inc., 983 F.2d at 253;  Schiller, 964 
F.2d at 1209;  Lykins, 725 F.2d at 1463.  The district court 
"should first offer the agency the opportunity to demonstrate, 
through detailed affidavits and oral testimony, that the with-
held information is clearly exempt and contains no segrega-
ble, nonexempt portions."  Allen, 636 F.2d at 1298.  The 
agency must provide a Vaughn affidavit explaining its rea-
sons for withholding the documents so as to alert the FOIA 
requester to the nature of the documents and the claimed 
exemptions and allow the requester to challenge the agency's 
assertions.  If the agency fails to provide a sufficiently de-
tailed explanation to enable the district court to make a de 
novo determination of the agency's claims of exemption, the 
district court then has several options, including inspecting 
the documents in camera, requesting further affidavits, or 
allowing the plaintiff discovery.   See id.

     Here, the Postal Service submitted a declaration from the 
inspector in charge of the Mottinger investigation.  Inspector 
Hartman's declaration placed the withheld documents in 
three general categories:  (1) suspect files, (2) letters from a 
confidential informant unrelated to the Mottinger case, and 
(3) fingerprints and palm prints of former suspects.  Only the 
first category required further elaboration.  According to 
Inspector Hartman's declaration, the suspect files contained 



information pertaining to suspects and former suspects in-
cluding

     information supplied by local and state law enforcement 
     agencies ..., narratives and computer generated print-
     outs of criminal activity of former suspects, photographs 
     of former suspects, criminal histories and descriptions of 
     suspects and former suspects, an interview of a former 
     suspect pertaining to other unrelated crimes, and inspec-
     tors' notes containing information from state, local, and 
     federal law enforcement agencies pertaining to suspects 
     and former suspects.

All of the information contained in these documents pertained 
to unrelated crimes committed by suspects other than Spirko.  
In his declaration, Inspector Hartman claimed that these 
documents were exempt from disclosure under FOIA Exemp-
tions 7(A), (C), (D) and (F) and discussed, in general terms, 
the reasons why the documents fell under each exemption.  A 
subsequent affidavit filed by the Postal Service at the time of 
its in camera submission listed the specific page numbers of 
the documents completely withheld from Inspector Hartman's 
desk file and the exemptions claimed for each page.

     Under Vaughn, the government is required to provide a 
detailed index to the requester "itemizing each item withheld, 
the exemptions claimed for that item, and the reasons why 
the exemption applies to that item." 4  Lykins, 725 F.2d at 
1463 (citing Vaughn, 484 F.2d at 827-28);  see also Summers, 
140 F.3d at 1080.  Spirko claims that the Postal Service's 
filings do not pass muster under this standard, but we find 
that the Postal Service's submissions were detailed enough 
that the district court did not abuse its discretion in deciding 
that it could inspect the disputed documents in camera 
without ordering further Vaughn indexing.  Although Inspec-
tor Hartman's declaration is fairly sweeping in its descrip-
tions, when coupled with the Postal Service's subsequent 
affidavit, it sufficiently explains the contents of the withheld 

__________
     4  The form of the Vaughn index is unimportant and affidavits 
providing similar information can suffice.  See Gallant v. NLRB, 26 
F.3d 168, 172-73 (D.C. Cir. 1994);  Lykins, 725 F.2d at 1463.


documents, the exemptions claimed for each page, the reasons 
for those exemptions, and the fact that none of the documents 
are segregable.5  Cf. Gallant v. NLRB, 26 F.3d 168, 173 (D.C. 
Cir. 1994);  Lykins, 725 F.2d at 1463.

     Spirko's objections to the district court's decision to inspect 
the documents in camera are unconvincing.  First, he charac-
terizes Inspector Hartman's affidavit as conclusory and 
vague, yet he does not indicate what more the Postal Service 
could have stated without revealing the information it sought 
to protect.  Clearly, "there are occasions when extensive 
public justification would threaten to reveal the very informa-
tion for which a FOIA exemption is claimed," particularly in 
the context of law enforcement records.  Lykins, 725 F.2d at 
1463.  Moreover, Spirko has failed to indicate how additional 
information could have provided further support for his argu-
ments before the district court or altered his response to the 
agency's claimed exemptions.6  Without suggesting how he 
has been harmed by the insufficiency of the Postal Service's 
Vaughn filings, we have no basis to conclude that Spirko's 
participation in the adversary process was compromised.

     Spirko also maintains that the district court should not 
have assumed the burden of reviewing the disputed docu-
ments in camera.  The district court concluded, however, 
that its review of the withheld documents would not burden 

__________
     5  We do not decide whether the Postal Service's submissions 
would have been sufficient for the district court to make a de novo 
determination on the claimed exemptions without in camera inspec-
tion of the documents.

     6  At oral argument, counsel for Spirko suggested that a more 
detailed Vaughn index could have indicated the number of suspects 
and witnesses mentioned in the withheld documents, their activities, 
and the precise number of pages that were comprised solely of 
fingerprints or palm prints.  Even if such detailed information 
would normally have been included in the Postal Service's Vaughn 
index, Spirko has not explained how such information would have 
helped his case or aided the district court in evaluating the agency's 
claimed exemptions.



judicial resources;  indeed, it stated that the alternative--
further Vaughn indexing--would not advance the "just, 
speedy and inexpensive determination" of the case.  Although 
the documents totaled 472 pages, the vast majority consisted 
of easily perused fingerprints, palm prints, photographs, and 
criminal "rap sheets" of suspects and former suspects.  Only 
a few pages contained handwritten notes or telephone mes-
sages that could require careful review by the district court.  
Under the circumstances, the district court acted within its 
discretion in denying Spirko's motion for further Vaughn 
indexing and proceeding instead to an in camera inspection of 
the documents.  Cf. Lykins, 725 F.2d at 1464.

                                     III.


     Spirko's challenge to the district court's finding that the 
bulk of the withheld documents had properly been withheld 
under Exemption 7(C) of FOIA merits only brief discussion.  
This court reviews de novo a "grant of summary judgment in 
favor of an agency which claims to have complied with 
FOIA," Nation Magazine v. United States Customs Serv., 71 
F.3d 885, 889 (D.C. Cir. 1995), and we have no occasion to 
disagree with the district court's decision to grant summary 
judgment to the Postal Service.

     Under Exemption 7(C), which covers "records or informa-
tion compiled for law enforcement purposes" whose disclosure 
"could reasonably be expected to constitute an unwarranted 
invasion of personal privacy," 5 U.S.C. s 552(b)(7)(C), an 
agency can withhold information "if the privacy interest at 
stake outweighs the public's interest in disclosure."  Nation 
Magazine, 71 F.3d at 893;  accord United States Dep't of 
Justice v. Reporters Committee for Freedom of the Press, 489 
U.S. 749, 762, 776 (1989).  Furthermore, this court has held 
that "when ... governmental misconduct is alleged as the 
justification for disclosure, the public interest is 'insubstantial' 
unless the requester puts forward 'compelling evidence that 
the agency denying the FOIA request is engaged in illegal 
activity' and shows that the information sought 'is necessary 
in order to confirm or refute that evidence.' "   Davis v. 



United States Dep't of Justice, 968 F.2d 1276, 1282 (D.C. Cir. 
1992) (quoting Safecard Servs., Inc. v. SEC, 926 F.2d 1197, 
1205-06 (D.C. Cir. 1991)).

     After performing the balancing analysis appropriate under 
Exemption 7(C), the district court found that the documents 
for which the Postal Service claimed the exemption--452 of 
the 472 pages submitted for in camera inspection--were 
properly withheld from disclosure.  The district court recog-
nized the strong privacy interests of the suspects and law 
enforcement officers identified in the withheld documents and 
found that Spirko had failed to assert any "clear public 
interest consideration to weigh against" these interests.  
Spirko then offered "new evidence" of agency wrongdoing as 
a justification for disclosure, but the district court found that 
this evidence did not alter the balance, for none of the 
requested documents either confirmed or refuted Spirko's 
"allegations of government misconduct."  Cf. id. at 1282.

     Upon our de novo review of the documents submitted in 
camera, we agree with the district court.  The vast majority 
of withheld pages consist of fingerprints, palm prints, photo-
graphs of former suspects, and computerized printouts of 
their criminal histories.  The documents also include notes or 
phone messages concerning witnesses, suspect interviews, 
and discussions with law enforcement officers.  None of the 
materials relate to the exculpatory information that Spirko 
claims was wrongfully withheld from him.  Neither do they 
have any bearing on other alleged instances of misconduct by 
the Postal Service.  All this was clearly and correctly ex-
plained in the district court's memorandum opinion.  Hence, 
Spirko's challenge to the district court's determination that 
the Postal Service properly withheld 452 pages under Exemp-
tion 7(C) is to no avail.

     Accordingly, because the district court did not abuse its 
discretion in denying Spirko's motion for further Vaughn 
indexing and conducting an in camera review of the docu-
ments withheld from Inspector Hartman's desk file, and 
because the district court properly determined that Exemp-



tion 7(C) barred disclosure of the bulk of these documents, we 
affirm the judgment.7

__________
     7  At oral argument and in a post-argument submission, Spirko 
contended that the district court erred by approving the Postal 
Service's withholding of entire documents without making specific 
findings as to whether each document contained segregable portions 
that could be released.  See Powell v. United States Bureau of 
Prisons, 927 F.2d 1239, 1242 (D.C. Cir. 1991).  Spirko, however, 
never squarely presented this argument in any of his briefs and 
therefore failed to raise it properly for review.  See Carducci v. 
Regan, 714 F.2d 171, 177 (D.C. Cir. 1983);  see also Fed. R. App. P. 
28(a)(6).  In any case, we agree with the district court's explicit 
statement that the withheld documents are not segregable because 
their "nature ... does not allow for effective redaction."