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."