United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 7, 2001 Decided June 12, 2001
No. 00-5211
Gregory Smith,
Appellant
v.
U. S. Department of Justice,
Appellee
Appeal from the United States District Court
for the District of Columbia
(No. 99cv00784)
Sidney A. Rosenzweig, appointed by the court, argued the
cause as amicus curiae on the side of appellant. With him on
the brief was Robert S. Litt.
Gregory Smith, appearing pro se, was on the brief for
appellant.
Lisa Barsoomian, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Wilma A.
Lewis, U.S. Attorney at the time the brief was filed, and R.
Craig Lawrence, Assistant U.S. Attorney.
Before: Williams, Ginsburg, and Rogers, Circuit Judges.
Opinion for the Court filed by Circuit Judge Ginsburg.
Ginsburg, Circuit Judge: While incarcerated at a federal
correctional institution, Gregory Smith placed several calls to
his attorney. Although an unmonitored telephone was avail-
able for this purpose, Smith used a telephone line on which he
knew all calls were monitored and recorded pursuant to a
policy of the Bureau of Prisons. Smith claims that during the
conversations the attorney effectively acknowledged that he
had not provided Smith with constitutionally adequate assis-
tance.
Smith later asked the Bureau of Prisons, under the Free-
dom of Information Act, 5 U.S.C. s 552, for copies of the
recordings it made of the conversations. The Government
denied the request on the sole ground that the recordings fall
within Exemption 3 of the FOIA because Title III of the
Omnibus Crime Control and Safe Streets Act, 18 U.S.C.
ss 2510 et seq., bars their disclosure. When Smith sought
judicial review, the district court granted summary judgment
for the Government. As we read Title III it is inapplicable to
the recordings at issue. Therefore, under the FOIA Smith is
entitled to the recordings. Smith -- who appeared pro se
and briefed the case creditably both in the district court and
here -- is now aided by an amicus curiae we appointed for
the occasion; we make no further distinction between Smith's
arguments and those of the amicus.
Analysis
Exemption 3 of the FOIA makes the general requirement
of disclosure inapplicable to materials
specifically exempted from disclosure by statute ... pro-
vided that such statute (A) requires that the matters be
withheld from the public in such a manner as to leave no
discretion on the issue, or (B) establishes particular
criteria for withholding or refers to particular types of
matters to be withheld.
5 U.S.C. s 552(b)(3). We have held that Title III, 18 U.S.C.
ss 2510 et seq., which limits the electronic interception and
disclosure of various communications, is just such an exempt-
ing statute because it "refer[s] to particular types of matters
to be withheld." Lam Lek Chong v. DEA, 929 F.2d 729, 733
(1991). Accordingly, Smith concedes that if the non-
disclosure provisions of Title III apply to the recordings he
seeks, then so does Exemption 3 of the FOIA. Whether the
district court correctly granted summary judgment for the
Government therefore turns upon whether Title III pro-
scribes disclosure of the recordings.
Subject to certain exceptions, Title III makes it unlawful
for a person to "intercept" "any wire, oral, or electronic
communication." 18 U.S.C. s 2511. The Government here
contends that the prison authorities, by recording the conver-
sations Smith had with his attorney, "intercepted" those
communications and did so lawfully, as authorized by the
consent exception in 18 U.S.C. s 2511(2)(c) ("person acting
under of color of law [may] intercept ... where ... one of the
parties to the communication has given prior consent"). The
Government then reasons that because Title III expressly
permits certain specifically-described types of disclosure (for
example, in court testimony) of communications obtained "by
any means authorized" in Title III, 18 U.S.C. s 2517, it
implicitly forbids any other type of disclosure, including dis-
closure pursuant to the FOIA.
Smith correctly identifies the fundamental defect in the
Government's argument: the recordings he seeks were not
the product of an "interception," consensual or otherwise,
governed by Title III; therefore, they are not subject to
whatever limitations Title III places upon the disclosure of
information that does result from a covered interception.
Here " 'intercept' means the aural or other acquisition of ...
any wire, electronic, or oral communication through the use of
any electronic, mechanical, or other device." 8 U.S.C.
s 2510(4). "[E]lectronic, mechanical, or other device," in
turn,
means any device or apparatus which can be used to
intercept a wire, oral, or electronic communication other
than--
(a) any telephone or telegraph instrument, equipment
or facility, or any component thereof, ...
(ii) being used ... by an investigative or law en-
forcement officer in the ordinary course of his
duties.
18 U.S.C. s 2510(5) (emphasis supplied). The latter defini-
tion consists first of an inclusionary clause specifying the
equipment associated with a proscribed interception, and then
of an exclusionary provision -- of which s 2510(a)(ii) is
part -- specifying "acquisitions" that remain outside the
statutory definition of an "interception." We have no doubt
that the recordings Smith seeks fall under the exclusionary
terms of s 2510(5)(a)(ii): They were obtained by "law en-
forcement officers" (the prison authorities) who "used," "in
the ordinary course of [their] duties," some telephone "instru-
ment, equipment or facility, or [a] component thereof."
In fact, the Government said as much before the district
court: "The ... provisions of Title III," here citing
s 2510(5)(a)(ii) and the consent exception, "ma[d]e the taping
of these calls legal." Government's Statement of Material
Facts Not in Genuine Dispute at p 9. Evidently, the Govern-
ment (and the district court) overlooked the point Smith made
in his own motion for summary judgment, namely, that
s 2510(5)(a)(ii) does not 'authorize' the recordings but instead
excludes them entirely from the coverage of the statute.
Now that Smith drives the point home, the Government has
changed its position.
The Government's current position, that the recordings do
not satisfy the terms of s 2510(5)(a)(ii), is contradicted by a
consistent line of cases admitting into evidence recordings
made by prison authorities who routinely monitor inmates'
conversations. Those cases hold that such recordings are not
unlawful under Title III because they come within the exclu-
sionary terms of s 2510(5)(a)(ii). See, e.g., United States v.
Van Poyck, 77 F.3d 285, 292 (9th Cir. 1996); United States v.
Daniels, 902 F.2d 1238, 1245 (7th Cir. 1990); United States v.
Feekes, 879 F.2d 1562, 1565-66 (7th Cir. 1989); United States
v. Paul, 614 F.2d 115, 117 (6th Cir. 1980). Indeed, that was
the position of the Government in each of the cited cases.
The Government nonetheless posits two reasons
s 2510(5)(a)(ii) does not embrace (and hence does not exclude
from Title III) the recordings here at issue; neither has real
bite. First, the Government asserts that the exclusion pro-
vided in s 2510(5)(a)(ii) "applies only to use of a telephone to
listen, not to use of a tape recorder to record." That con-
struction conflicts with the distinction, which is implicit in
Title III, between intercepting ("acqui[ring] the contents of
any ... communication," s 2510(4)) -- for which some prison
telephone "instrument, equipment or facility, or [some] com-
ponent thereof" was almost certainly used in this case -- and
recording that communication -- for which a separate device
well may have been used. See 18 U.S.C. s 2518(8) (a)
("contents of any ... communication intercepted by any
means authorized by this chapter shall, if possible, be record-
ed on tape or wire or other comparable device") (emphasis
supplied). We say "almost certainly" because the Govern-
ment introduced no evidence whatsoever regarding the equip-
ment it used to monitor the calls; more to the point, the
Government failed to prove that the means of intercepting the
calls did not involve use of the prison's telephone system or a
component thereof. Because the Government bears the bur-
den of showing that an exemption from the FOIA applies, see
Maydak v. DOJ, 218 F.3d 760, 764 (D.C. Cir. 2000), that
failure of proof alone forecloses its first argument.
Second, the Government asserts that "section 2510(5)(a)(ii)
applies only when the telephone is 'being used by ... an
investigative or law enforcement officer,' i.e. the officer is the
person using the telephone, not when the telephone is being
used by someone else and the officer is just using the tape
recorder." The statute is not susceptible to that construction
because it embraces use not only of a telephone but of any
telephone "equipment or facility, or any component thereof,"
18 U.S.C. s 2510(5); clearly, the law enforcement officer need
not be using the telephone itself, wherefore he need not be
participating in the conversation either. Moreover, 18 U.S.C.
s 2511(2)(c) separately authorizes "a person acting under
color of law to intercept a ... communication where such
person is a party to the conversation"; as the requirements of
that section are automatically met when a law enforcement
officer actually participates in the conversation, the Govern-
ment's reading would render s 2510(5)(a)(ii) superfluous.
Finally, the Government requests in the alternative that we
remand this case to the district court so it can there for the
first time raise certain other exemptions from the FOIA.
That avenue is barred:
We have plainly and repeatedly told the government
that, as a general rule, it must assert all exemptions at
the same time, in the original district court proceed-
ings.... FOIA was enacted to promote honesty and
reduce waste in government by exposing an agency's
performance of its statutory duties to public scrutiny....
As we have observed in the past, the delay caused by
permitting the government to raise its FOIA exemption
claims one at a time interferes both with the statutory
goals of "efficient, prompt, and full disclosure of informa-
tion," ... and with "interests of judicial finality and
economy."
Maydak, 218 F.3d at 764. The Government identifies no
"extraordinary circumstance" or "interim development" of
facts or of law, id. at 767, to warrant our departing from this
rule. Therefore, it must produce the recordings notwith-
standing any other FOIA exemptions it may assert in a
future case of this sort.
Conclusion
For the foregoing reasons, we hold that Smith is entitled to
the recordings he requested pursuant to the FOIA. The
judgment of the district court is, accordingly,
Reversed.