United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 26, 1998 Decided April 7, 1998
No. 96-5250
Brett C. Kimberlin,
Appellant
v.
Department of Justice,
Appellee
Appeal from the United States District Court
for the District of Columbia
(No. 95cv01328)
Julia Court, appointed by the court, argued the cause as
amicus curiae supporting appellant, with whom Thomas M.
Barba was on the briefs. Brett C. Kimberlin, appearing pro
se, entered an appearance.
Cynthia A. Schnedar, Assistant U.S. Attorney, argued the
cause for appellee, with whom Mary Lou Leary, U.S. Attor-
ney at the time the brief was filed, and R. Craig Lawrence,
Assistant U.S. Attorney, were on the brief.
Before: Ginsburg, Henderson, and Randolph, Circuit
Judges.
Opinion for the Court filed by Circuit Judge Ginsburg.
Ginsburg, Circuit Judge: Appellant Brett C. Kimberlin
sued the Department of Justice seeking disclosure, pursuant
to the Freedom of Information Act, 5 U.S.C. s 552, of docu-
ments relating to an investigation of an Assistant United
States Attorney by the Department's Office of Professional
Responsibility. The district court determined that the Gov-
ernment properly withheld the information pursuant to Ex-
emption 7(C) to the FOIA because the Department had
compiled the requested information for "law enforcement
purposes." See 5 U.S.C. s 552(b)(7)(C). We agree that the
nature of the withheld information brings it presumptively
within Exemption 7(C). Because the district court failed to
determine whether any of the information could be segregat-
ed and disclosed without compromising the nondisclosable
material, however, we remand the case to the district court.
I. BACKGROUND
In 1982 the Drug Enforcement Administration investigated
and found baseless certain allegations that then-U.S. Senator
Dan Quayle had used cocaine. During the 1992 presidential
campaign, renewed speculation in the media about Quayle's
alleged cocaine use led AUSA John Thar, of the Southern
District of Indiana, to disclose the findings of the 1982
investigation to the Indianapolis Star with the following
explanation:
I'm disclosing what I have, with approval, simply because
so much has been made out of nothing.... It's all been
so misconstrued.... I'm making an honest disclosure of
what was found, hoping to put an end to it.
James A. Gillaspy, Feds Reveal Details of Quayle Drug
Probe, Indianapolis Star, Nov. 13, 1991, at 1. The Star
described Thar's disclosure as "a rare departure from the
Department of Justice policy of withholding comment about
any investigation." The Office of Professional Responsibility,
which handles allegations of improper conduct by DOJ offi-
cials, investigated the disclosure. In response to an inquiry
from the press Thar acknowledged that he was disciplined as
a result of the OPR investigation at a level of severity
somewhere between "you've done something wrong" and
"you're fired." Aaron M. Freiwald, Quayle Accuser Presses
Conspiracy Claims, Legal Times, March 30, 1992 at 1, 20.
In 1994 Kimberlin sought disclosure pursuant to the FOIA
of "all papers, documents and things pertaining to the OPR
investigation" of Thar. Initially the OPR gave a standard
Glomar response, refusing either to confirm or to deny that
such an investigation had taken place. Cf. Phillippi v. CIA,
546 F.2d 1009, 1011 (D.C. Cir. 1976) (CIA refused to confirm
or deny existence of information regarding research vessel
Glomar Explorer). When Kimberlin brought suit in district
court to compel disclosure and confronted the OPR with
evidence that Thar had acknowledged publicly that the OPR
had investigated his disclosure to the Star, the OPR withdrew
its Glomar response and released two press clippings from its
file on the investigation. The OPR withheld the balance of
the file on the ground that it comes within Exemption 7(C) to
the FOIA, which provides that an agency may withhold
"records or information compiled for law enforcement pur-
poses" to the extent that the production thereof "could rea-
sonably be expected to constitute an unwarranted invasion of
personal privacy." 5 U.S.C. s 552(b)(7)(C).
The district court reviewed in camera some or all of the
OPR file, together with a memorandum from the Government
detailing its reasons for withholding the contents of the file.
Upon cross-motions for summary judgment, the district court
held that "the Government has properly invoked Exemption
7(C) and may continue to withhold such information from
public disclosure." Kimberlin v. Department of Justice, 921
F. Supp. 833, 836 (D.D.C. 1996). Kimberlin appealed, and
this court appointed an amicus curiae to argue in support of
Kimberlin.
II. ANALYSIS
The amicus argues that the district court erred in three
ways: first, by determining that the OPR's investigation was
for "law enforcement purposes" and hence potentially within
the scope of Exemption 7(C); second, by failing properly to
balance the interests for and against disclosure; and third, by
failing to order release of any reasonably segregable portion
of the OPR file. We review de novo the district court's grant
of summary judgment, applying the same standards that
governed the district court's decision. See The Nation Maga-
zine v. United States Customs Serv., 71 F.3d 885, 889 (D.C.
Cir. 1995).
A.Does Exemption 7(C) Apply?
Exemption 7(C) to the FOIA permits an agency to withhold
information "compiled for law enforcement purposes" to the
extent that such information "could reasonably be expected to
constitute an unwarranted invasion of personal privacy." 5
U.S.C. s 552(b)(7)(C). It does not exempt from disclosure, as
we have previously had occasion to note, "[i]nternal agency
investigations ... in which an agency, acting as the employer,
simply supervises its own employees." Stern v. F.B.I., 737
F.2d 84, 89 (1984). Material compiled in the course of such
internal agency monitoring does not come within Exemption
7(C) even though it "might reveal evidence that later could
give rise to a law enforcement investigation." Id. On the
other hand,
an agency's investigation of its own employees is for "law
enforcement purposes" ... if it focuses "directly on
specifically alleged illegal acts, illegal acts of particular
identified officials, acts which could, if proved, result in
civil or criminal sanctions."
Id. (quoting Rural Housing Alliance v. U.S. Dept. of Agricul-
ture, 498 F.2d 73, 81 (D.C. Cir. 1974)).
The OPR investigation here at issue was conducted in
response to and focused upon a specific, potentially illegal
release of information by a particular, identified official. The
investigation was intended to discover whether John Thar
had violated any law by revealing to the press information
concerning an investigation of the Vice-President, who was
then running for re-election. The investigation was not aim-
ing generally, as was the investigation in Rural Housing for
example, "to insure that [the agency's] employees are acting
in accordance with statutory mandate and the agency's own
regulations." 498 F.2d at 81. We conclude, therefore, that
the Government compiled the information in the OPR file for
law enforcement purposes, with the result that the Govern-
ment may withhold the requested records pursuant to Ex-
emption 7(C) if such disclosure "could reasonably be expected
to constitute an unwarranted invasion of personal privacy." 5
U.S.C. 552(b)(7)(C).
B.The Balance of Public and Private Interests
The district court weighed the interests for and against
disclosure as follows:
[P]ublic employees have an expectation that information
gathered in the course of internal investigations will
remain private. Beck v. Department of Justice, 997 F.2d
1489, 1494 (D.C. Cir. 1993). While the public does have
an interest in examining the internal disciplinary pro-
cesses of the Department of Justice, such public interest
cannot be held to be superior to the privacy interests of
those employees who may, from time to time, come
under the scrutiny of OPR. It would be grossly unfair to
release such information and subject dedicated public
servants to unnecessary scrutiny for every complaint
that has been filed, regardless of the merits.
921 F. Supp. at 836. In stating that "the public does have an
interest in examining the internal disciplinary processes of
the Department of Justice," the district court followed the
teaching of the Supreme Court that the main purpose of the
FOIA is to open agency action to the light of public scrutiny.
As the Supreme Court put the matter:
[A]lthough there is undoubtedly some public interest in
anyone's criminal history, especially if the history is in
some way related to the subject's dealing with a public
official or agency, the FOIA's central purpose is to
ensure that the Government's activities be opened to the
sharp eye of public scrutiny, not that information about
private citizens that happens to be in the warehouse of
the Government be so disclosed.
United States Dept. of Justice v. Reporters Committee for
Freedom of the Press, 489 U.S. 749, 774 (1988) (emphases
deleted).
The present parties take the Court's point, of course, but
they disagree about how disclosure of the OPR materials
concerning the investigation of Thar would serve the "central
purpose" of the FOIA. On the one hand, the amicus argues
that "the OPR records requested could not be more central to
FOIA's core purpose ... because by nature such records
contain information that examines and documents agency
action." On the other, the Government contends that "how
the Department of Justice handled one isolated case concern-
ing an alleged leak would not shed enough light on how the
Department in general handles any alleged leaks" to warrant
disclosure of the requested materials. The Government also
asserts that in this case Exemption 7(C) protects the privacy
interests not only of Thar but also of "third persons whose
identities would be revealed by release of the files."
The amicus faults the district court for creating a categori-
cal rule against disclosure of OPR files and argues that OPR
investigations
are not sufficiently uniform in the privacy interests at
stake, the subject matter involved, the rank of the public
officials involved, the type of misconduct investigated, or
a myriad of other factors, to comprise a single category
in which the balance would always tip in favor of exemp-
tion.
Cf. Reporters Committee, 489 U.S. at 776 ("categorical deci-
sions may be appropriate and individual circumstances disre-
garded when a case fits into a genus in which the balance [of
interests for and against disclosure] characteristically tips in
one direction"). For its part, the Government does not
disagree with the amicus that the balancing of interests with
regard to OPR files should be done on a case-by-case basis
rather than categorically; the Government just reads the
district court to have performed such an ad hoc balancing and
not to have created a categorical rule.
In view of the parties' agreement, and regardless what the
district court may have had in mind, we may assume for
purposes of this opinion that the balance of interests relating
to the disclosure of material in an OPR file will not so often
tip toward withholding that a categorical rule against disclo-
sure is appropriate. The alternative of case-by-case balanc-
ing should not be as complicated as implied by the amicus's
reference to a "myriad" of relevant factors, however, lest it
come to resemble the open-ended " 'kitchen sink' rule of
reason" in antitrust law. Charles F. Rule, Point: As Ameri-
can as Baseball, Apple Pie, or Guidelines, 4 Antitrust 31, 32
(1989); cf. Frank H. Easterbrook, The Limits of Antitrust, 63
Texas L. Rev. 1, 12 (1984) (commenting upon the rule of
reason that "[w]hen everything is relevant, nothing is disposi-
tive"). In view of the purpose of the FOIA, it will ordinarily
be enough for the court to consider, when balancing the
public interest in disclosure against the private interest in
exemption, the rank of the public official involved and the
seriousness of the misconduct alleged. Cf. Stern, 737 F.2d at
94 ("There is a decided difference between knowing partic-
ipation by a high-level officer in such deception and the
negligent performance of particular duties by the two other
lower-level employees").
Here the OPR has investigated a staff-level government
lawyer in connection with the possibly unauthorized and
perhaps illegal release of information to the press. Under
these circumstances, we have no doubt that disclosure of the
OPR investigative file would occasion an invasion of Thar's
privacy disproportionate to, and therefore "unwarranted" by,
such insight as the public would gain into "what the Govern-
ment is up to." Reporters Committee, 489 U.S. at 750.
The amicus urges upon us the particularized claim that
Thar "waived any privacy interest of his own when he admit-
ted to the press that he was investigated and disciplined for
releasing the Vice President's DEA files." But surely Thar
did not, merely by acknowledging the investigation and mak-
ing a vague reference to its conclusion, waive all his interest
in keeping the contents of the OPR file confidential. And
although government officials, as we have stated before, may
have a "somewhat diminished" privacy interest, they "do not
surrender all rights to personal privacy when they accept a
public appointment." Quion v. FBI, 86 F.3d 1222, 1230
(D.C. Cir. 1996).
That said, Thar's statement to the press undoubtedly does
diminish his interest in privacy: the public already knows
who he is, what he was accused of, and that he received a
relatively mild sanction. He still has a privacy interest,
however, in avoiding disclosure of the details of the investiga-
tion, of his misconduct, and of his punishment--and perhaps,
too, an interest in preventing hitherto speculative press re-
ports of his misconduct from receiving authoritative confirma-
tion from an official source. Cf. Bast v. Department of
Justice, 665 F.2d 1251, 1255 (D.C. Cir. 1981).
We agree with the district court's implication, therefore,
that official confirmation of what has been reported in the
press and the disclosure of additional details could reasonably
be expected to constitute an unwarranted invasion of Thar's
personal privacy. Accordingly, the Government properly as-
serted Exemption 7(C) as a bar to disclosure with respect to
Thar. It goes almost without saying, moreover, that individu-
als other than Thar whose names appear in the file retain a
strong privacy interest in not being associated with an inves-
tigation involving professional misconduct; hence, the Gov-
ernment correctly asserted Exemption 7(C) with respect to
them as well.
C.Segregability
The FOIA requires that "[a]ny reasonably segregable por-
tion of a record shall be provided to any person requesting
such record after deletion of the portions which are exempt."
5 U.S.C. s 552(b). More specifically, "[i]t has long been the
rule in this Circuit that non-exempt portions of a document
must be disclosed unless they are inextricably intertwined
with exempt portions." Mead Data Central, Inc. v. United
States Dep't of the Air Force, 566 F.2d 242, 260 (D.C. Cir.
1977).
The amicus argues that the "OPR's Vaughn index failed to
establish that OPR could not segregate and release nonex-
empt information" and, relatedly, that the district court erred
by failing to determine whether there are any non-exempt
portions of the requested information sufficiently segregable
that the OPR could have released them. Both points are
well-taken.
In order to withhold an entire file pursuant to Exemption
7(C), the Government must show that disclosure of any part
of the file "could reasonably be expected to constitute an
unwarranted invasion of personal privacy." Moreover, the
Government must make that showing in its Vaughn index and
in such affidavits as it may submit therewith. See generally
Vaughn v. Rosen, 484 F.2d 820, 827-28 (D.C. Cir. 1973)
(outlining requirements agency must meet in indexing docu-
ments for which it claims exemption from disclosure under
FOIA). We recently explained:
The purpose of a Vaughn index is to permit adequate
adversary testing of the agency's claimed right to an
exemption, and those who contest denials of FOIA re-
quests--who are, necessarily, at a disadvantage because
they have not seen the withheld documents--can gener-
ally prevail only by showing that the agency's Vaughn
index does not justify withholding information under the
exemptions invoked.
Schiller v. NLRB, 964 F.2d 1205, 1209 (D.C. Cir. 1992)
(citations omitted).
In the Vaughn index it submitted in this case, the Govern-
ment asserts only that entire documents are exempt from
disclosure. As the Government should know by now, howev-
er, "[t]he focus in the FOIA is information, not documents,
and an agency cannot justify withholding an entire document
simply by showing that it contains some exempt material."
Mead Data Central, 566 F.2d at 260. In the most egregious
instance the Government claims that Exemption 7(C) applies
to a 37-page document consisting of a cover letter and 36
pages described only as "material collected by the United
States Attorney's Office." As we have pointed out before,
"Vaughn itself requires agencies to 'specify in detail which
portions of the document are disclosable and which are
allegedly exempt.' 484 F.2d at 827. A submission that does
not do that does not even qualify as a 'Vaughn index.' "
Schiller, 964 F.2d at 1210.
The Government does argue that because "the requested
OPR file focuses completely on one government employee,"
the "[r]elease of any of the file, whether redacted or not,
would necessarily ... cause AUSA Thar's name to be associ-
ated with allegations of misconduct and could cause him
'great personal and professional embarrassment.' " Neither
the amicus nor the court, however, is obliged to accept that
conclusion without more specification of the types of material
in the file.
Perhaps because of the manifest inadequacy of the Govern-
ment's Vaughn index, the district court exercised its discre-
tion to perform its own in camera inspection of certain
documents in the file. The district court does not appear to
have considered the segregability issue in the course of its
inspection, however; the court made no findings regarding
segregability despite our prior guidance that "it is error for a
district court to simply approve the withholding of an entire
document without entering a finding on segregability, or the
lack thereof." Schiller, 964 F.2d at 1210 (quoting Church of
Scientology v. Department of the Army, 611 F.2d 738, 744
(9th Cir. 1979)). Therefore, we must remand this case to the
district court to determine whether any of the withheld
documents contains material that can be segregated and
disclosed without unwarrantably impinging upon anyone's
privacy. See Krikorian v. Department of State, 984 F.2d 461,
467 (D.C. Cir. 1993) (remanding "because the district court
did not make specific findings of segregability regarding each
of the withheld documents").
III. CONCLUSION
The district court correctly concluded that the OPR com-
piled its file on John Thar's release of information to the
Indianapolis Star for "law enforcement purposes." The
court also correctly determined that some information in the
OPR file falls within Exemption 7(C) to the FOIA: Thar was
not a high-ranking official in the Department of Justice, and
the alleged wrongdoing concerning which he was investigated
was not so serious that the public's interest in disclosure
warrants the invasion of Thar's privacy that would attend
disclosure of the investigative file. The district court erred,
however, in failing to make any finding regarding the segreg-
ability of such disclosable information as may be in the file.
Accordingly, we remand this matter for the district court to
establish whether any reasonably segregable portion of the
documents in the withheld OPR file can be disclosed.
So ordered.