Carpenter v. United States Department of Justice

United States Court of Appeals
For the First Circuit

No. 06-1489

DANIEL E. CARPENTER,

Plaintiff, Appellant,

v.

UNITED STATES DEPARTMENT OF JUSTICE, UNITED STATES ATTORNEY FOR
THE DISTRICT OF MASSACHUSETTS,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Morris E. Lasker, U.S. District Judge]

Before

Lipez, Circuit Judge,
Cyr, Senior Circuit Judge,
and Singal,* District Judge.

Malik W. Ghachem for appellant.
Peter D. Keisler, Assistant Attorney General, with whom
Michael Sullivan, United States Attorney, Leonard Schaitman and
Steve Frank, Attorneys, Appellate Staff, Civil Division,
Department of Justice, were on brief for appellees.

December 12, 2006

*
Of the District of Maine, sitting by designation.
 SINGAL, District Judge. Plaintiff, Daniel Carpenter

(“Carpenter”), filed a Freedom of Information Act (“FOIA”), 5

U.S.C. § 552 (2006), request with the United States Attorney’s

Office (“USAO”) for the District of Massachusetts requesting

documents that a third party provided to the USAO in connection

with the government’s investigation and prosecution of

Plaintiff’s business activities. This appeal is taken from a

district court order granting summary judgment for Defendants,

the United States Department of Justice and the USAO for the

District of Massachusetts (“the Government”), and thereby denying

Carpenter’s FOIA request. On appeal, Carpenter maintains that

the requested materials are subject to disclosure because the

public interest in disclosure outweighs any privacy interest

maintained in the materials. We affirm the district court’s

order.

I. Background

By letter dated August 18, 2004, Carpenter filed a FOIA

request with the USAO in Boston. Carpenter petitioned for

materials that a third party, John Koresko, Esq. (“Koresko”),

allegedly provided to the USAO in support of the Government’s

prosecution of Carpenter’s business activities.1 According to

1
Prior to the FOIA request, Carpenter was indicted and
subsequently tried on fourteen counts of wire fraud in violation of
18 U.S.C. § 1343 and five counts of mail fraud in violation of 18

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Carpenter, he and Koresko are direct competitors in the field of

welfare benefit plan design and administration. Carpenter

alleges that Koresko provided information and materials to the

USAO, on which his indictment was based, and that he needs the

materials to ensure that Koresko did not provide false or

misleading materials. The FOIA request, therefore, sought to

compel disclosure of “[a]ll documents, correspondence, records or

files provided by or obtained from [Koresko]” that related to

Carpenter’s businesses, welfare plans or criminal prosecution, or

“reflect any conversation with [Koresko].”2

U.S.C. § 1341. On July 27, 2005, a jury found Carpenter guilty on
all counts. The conviction was overturned, however, and a new
trial ordered. In the motion for acquittal, Carpenter argued that
there was insufficient evidence to convict. The district court
found sufficient evidence but granted a new trial on the ground of
prosecutorial misconduct in the closing argument. United States v.
Carpenter, 405 F. Supp. 2d 85, 103 (D. Mass. 2005).
2
Carpenter requested the following materials:

a. All documents, correspondence, records, or files
provided by or obtained from John Koresko, V, Esq.
that refer to, relate to, or reflect (a) Daniel E.
Carpenter; (b) Benistar Property Exchange Trust
Co., Inc.; (c) Benistar, Ltd.; (d) Benistar 419
Plan Services, Inc.; (e) Benistar 419 Plan; (f)
Benistar Admin Services, Inc.; (g) the
investigation leading to United States v.
Carpenter, Criminal No. 04-10029-GAO; or (h) the
case itself after the indictment issued.

b. All documents that refer to, relate to, or
reflect any conversation with John J. Koresko, V,
Esq.

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 After several rounds of correspondence and because the

Government failed to respond to the FOIA request within the

twenty-day statutory time limit, 5 U.S.C. § 552(a)(6)(A),

Carpenter filed this FOIA suit on January 28, 2005. The

Government responded to both the FOIA request and the lawsuit by

declining to either confirm or deny the existence of the

requested materials (a “Glomar response”3) and asserting that any

such records would be exempt from disclosure.4 Carpenter moved

3
The “Glomar response” derives its name from a ship, the
Hughes Glomar Explorer, “built (we now know) to recover a sunken
Soviet submarine, but disguised as a private vessel for mining
manganese nodules from the ocean floor.” Bassiouni v. CIA, 392
F.3d 244, 246 (1st Cir. 2004). See generally Phillippi v. CIA, 546
F.2d 1009 (D.C. Cir. 1976).
4
The Executive Office for the United States Attorneys
(“EOUSA”) responded to the FOIA request by stating:

EOUSA can neither confirm nor deny that such records
exist. If in fact, they did exist, all such records as
you have requested cannot be released absent express
authorization and consent of the third party, Mr.
Koresko, proof that he is deceased, or a clear
demonstration that the public interest in disclosure
outweighs the personal privacy interest and that
significant public benefit would result from the
disclosure of the requested records . . . . These records
are also categorically exempt from disclosure pursuant to
sections (b)(6) and (b)(7)(C) of the Freedom of
Information Act, 5 U.S.C. 552.

Although the Government officially continues to refuse to
confirm or deny the existence of any materials or documents
responsive to the FOIA request, both the district court and this
Court have conducted an in camera review of the materials. In
addition, the government referred to “e-mails” in its brief.
(Appellee’s Br. 27.) In short, the arguments presented on appeal

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for summary judgment on June 17, 2005 and the Government cross-

moved for summary judgment on July 1, 2005.5

After conducting an in camera review, the district court

denied Carpenter’s motion for summary judgment and granted the

Government’s cross-motion for summary judgment via an Endorsement

Order.6 The district court held that the materials at issue were

exempt from disclosure under Exemption 7(C) of the FOIA, which

exempts from disclosure “records or information compiled for law

enforcement purposes but only to the extent that” such

information “could reasonably be expected to constitute an

unwarranted invasion of personal privacy.” 5 U.S.C. § 552

(b)(7)(C).

Carpenter filed a timely motion for reconsideration, arguing

that the court had erred in relying upon Quinon v. FBI, 86 F.3d

proceed on the assumption that responsive documents exist. Thus,
this Court’s analysis similarly proceeds based on the premise that
the Government has at least some documents responsive to
Plaintiff’s FOIA request.
5
On June 17, 2005, Carpenter also filed an “emergency” motion
for discovery in his criminal proceeding, seeking the same
documents as those in the FOIA request. United States v. Carpenter,
Crim. No. 04-10029-GAO (Docket # 80). On June 30, 2005, the
district court ordered that the USAO submit the disputed documents
for an in camera review. On February 17, 2006, the court denied
nunc pro tunc the motion for discovery.
6
The district court, however, held the government’s Glomar
reply insufficient where neither national security nor foreign
intelligence was at issue.

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1222 (D.C. Cir. 1996), in reaching its decision. On December 12,

2006, the district court denied Plaintiff’s motion. This appeal

followed.

Our review of the district court’s determination that the

materials are exempt from disclosure is de novo. Church of

Scientology Int’l v. U.S. Dep’t of Justice, 30 F.3d 224, 228 (1st

Cir. 1994). Our discussion begins with a general review of the

FOIA standards and its exemptions.

II. Discussion

The FOIA was intended to expose the operations of federal

agencies “to the light of public scrutiny.” U.S. Dep’t of the Air

Force v. Rose, 425 U.S. 352, 372 (1976); Providence Journal Co.

v. U.S. Dep’t of the Army, 981 F.2d 552, 556 (1st Cir. 1992)

(noting that the FOIA seeks to prevent “the development and

application of a body of ‘secret law’”). The basic policy of

full agency disclosure within the FOIA furthers the right of

citizens to know “what their government is up to,” U.S. Dep’t of

Justice v. Reporters Comm. for Freedom of the Press, 489 U.S.

749, 773 (1989) (quoting EPA v. Mink, 410 U.S. 73, 105 (1973)

(Douglas, J., dissenting)), and promotes an informed citizenry,

which is vital to democracy. NLRB v. Robbins Tire & Rubber Co.,

437 U.S. 214, 242 (1978). Thus, in response to a FOIA request, a

governmental agency must make promptly available to any person

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those materials in the possession of the agency, unless the

agency can establish that the materials fall within one of nine

exemptions. 5 U.S.C. § 552(a)(3).

To effectuate the goals of the FOIA while safeguarding the

efficient administration of the government, the FOIA provides

that certain categories of materials are exempted from the

general requirements of disclosure. Id. § 552(b); Providence

Journal Co., 981 F.2d at 556. The nine FOIA exemptions are to be

construed narrowly, with any doubts resolved in favor of

disclosure. U.S. Dep’t of Justice v. Julian, 486 U.S. 1, 8

(1988); Providence Journal Co., 981 F.2d at 557. The government

bears the burden of proving that withheld materials fall within

one of the statutory exemptions, 5 U.S.C. § 552(a)(4)(B); Orion

Research, Inc., v. EPA, 615 F.2d 551, 553 (1st Cir. 1980), and

district courts are required to make de novo determinations as to

the validity of the asserted exemptions. 5 U.S.C. §

552(a)(4)(B); see also Reporters Comm., 489 U.S. at 755;

Providence Journal Co., 981 F.2d at 556-57.

Exemption 7(C) formed the sole basis for the district

court’s determination that the requested materials need not be

disclosed.

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 This exemption permits an agency to withhold records or

information compiled for law enforcement purposes,7 “but only to

the extent that the production of such [materials] . . . could

reasonably be expected to constitute an unwarranted invasion of

personal privacy.” § 552(b)(7)(C). The application of Exemption

7(C) requires the court to balance the privacy interest at stake

in revealing the materials with the public interest in their

release. Reporters Comm., 489 U.S. at 762; Maynard v. CIA, 986

F.2d 547, 566 (1st Cir. 1993).

A. The Privacy Interest

The privacy interest protected by Exemption 7(C) is not a

“cramped” or limited notion of personal privacy. See Reporters

Comm., 489 U.S. at 762-63. Instead, Exemption 7(C) protects a

broad notion of personal privacy, including an individual’s

interest in avoiding disclosure of personal matters. Id. at 762.

This notion of privacy “encompass[es] the individual’s control of

information concerning his or her person,” and “when, how, and to

what extent information about them is communicated to others.”

7
The materials subject to the FOIA request were provided by
Koresko to aid in the investigation and prosecution of Carpenter’s
business activities by the USAO. The USAO, a law enforcement
agency, has established a “rational nexus” between the “activities
being investigated and violations of federal law” and the relevant
documents. See Irons v. Bell, 596 F.2d 468, 472 (1st Cir. 1979).
The record clearly supports, and the parties do not contest, that
the documents were gathered for law enforcement purposes.

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Id. at 789, 764 n.16. The individual, and not the agency in

possession of the records, controls the privacy interest. See

Reporters Comm., 489 U.S. at 763-65; Sherman v. U.S. Dep’t of the

Army, 244 F.3d 357, 363 (5th Cir. 2001) (providing that the

individual controls the privacy interest at stake in FOIA

exemptions).

Furthermore, where the provider of the information or

records is a private individual, “the privacy interest . . . is

at its apex.” Reporters Comm., 489 U.S. at 780; Nat’l Archives &

Records Admin. v. Favish, 541 U.S. 157, 166 (2004). In Reporters

Committee, the Supreme Court pointed to the provisions of the

FOIA allowing the redaction of an individual’s identifying

information and the segregation of exempt portions of the record

in concluding that the “disclosure of records regarding private

citizens, identifiable by name, is not what the framers of the

FOIA had in mind.”8 489 U.S. at 765-66. The central purpose of

the FOIA is to reveal government action, not to expose the

actions of private third parties and their participation in law

enforcement to the public. See id. at 774 (“[T]he 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

8
Specifically, the Supreme Court pointed to Sections
552(a)(2) and 552(b).

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private citizens that happens to be in the warehouse of the

Government be so disclosed.”). With this general understanding

of the privacy interest protected by Exemption 7(C), we turn to

the facts at hand.

Carpenter brought this FOIA action to compel disclosure of

information or records provided by or concerning Koresko in

connection with the Government’s investigation and prosecution of

Carpenter’s business activities. We agree with the district

court that a person need not be the subject of the investigation

to have a substantial privacy interest in maintaining the secrecy

of his involvement with the investigation. See Maynard, 986 F.2d

at 566; Fitzgibbon v. CIA, 911 F.2d 755, 767 (D.C. Cir. 1990).

Rather, precedents suggest that individuals maintain a privacy

interest under the FOIA in their identity as government

informants and in not being positively associated with a criminal

matter. See, e.g., Maynard, 986 F.2d at 566; Fitzgibbon, 911

F.2d at 767.

Although Koresko is not, strictly speaking, a government

informant, his privacy interest is analogous to that of an

informant. This Court has long protected the identities of

witnesses and informants in law enforcement records. Maynard,

986 F.2d at 566 (stating that “FBI agents, support personnel,

confidential sources, and investigatory targets all have

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significant privacy interests in not having their names

revealed”); New England Apple Council v. Donovan, 725 F.2d 139,

142 (1st Cir. 1984); see also Fitzgibbon, 911 F.2d at 767

(“[P]ersons involved in FBI investigations - even if they are not

the subject of the investigation - ‘have a substantial interest

in seeing that their participation remains secret.’”).

While Koresko’s identity is known and Carpenter alleges that

he assisted the Government in its prosecution, it is a further

invasion of Koresko’s protected privacy interest to positively

identify him with a given criminal matter and reveal the records

or information that he provided. See Fitzgibbon, 911 F.2d at 767

(“[E]xemption 7(C) takes particular note of the ‘strong interest’

of individuals, whether they be suspects, witnesses, or

investigators, ‘in not being associated unwarrantedly with

alleged criminal activity.’”). Koresko, as a private individual,

maintains control over information concerning his person and his

involvement with the criminal justice system, and he alone

controls “when, how, and to what extent [that] information” will

be revealed. Reporters Comm., 489 U.S. at 764 n.16.

Carpenter, however, asserts that Koresko has waived any

privacy interest via his alleged involvement in the Government’s

prosecution. Plaintiff bases this contention on a letter from a

Congressman attached to Koresko’s motion to quash a subpoena in

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an unrelated administrative proceeding. The letter stated: “I

understand that Mr. Koresko has been of assistance to your

office, the Boston office of the DOL/EBSA and Assistant U.S.

Attorney Michael Pineault in the Boston office of the United

States Attorney.”9 (Appellant App. 60.) This, at best, tenuous

connection to the Carpenter investigation is insufficient to

waive Koresko’s privacy interest.10 The assertion that Koresko’s

identity as an informant in the Carpenter investigation arguably

can be determined from another source does not terminate his

privacy interest. See L & C Marine Transp., Ltd. v. United

States, 740 F.2d 919, 922 (11th Cir. 1984). That information has

been released to the public domain, especially where the release

is limited, has little bearing on the privacy interest.

Reporters Comm., 489 U.S. at 763-64. Indeed, in modern society

9
In addition, Carpenter points to statements made by
Assistant U.S. Attorney (“AUSA”) Pineault during the final pretrial
conference for Carpenter’s prosecution. AUSA Pineault referenced
that Koresko filed a number of pleadings related to civil disputes
between various individuals and companies and Benistar LTD. These
statements, however, are not properly before the Court on appeal
because Carpenter waived this argument by failing to raise it in
his opening brief. See Levin v. Dalva Bros., Inc., 459 F.3d 68, 76
n.4 (1st Cir. 2006).
10
AUSA Pineault was the prosecutor in charge of Carpenter’s
investigation and prosecution. AUSAs, however, handle numerous
cases simultaneously, and the affidavit makes no mention of the
specific case with which Koresko assisted AUSA Pineault.

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there is little information that has not been released to

another. Id. at 763.

Thus, an intention by Koresko to waive his privacy interest

cannot be distilled from an affidavit of a Congressman attached

to his motion to quash a subpoena in an unrelated case.

Similarly, the Sixth Circuit has found that FBI agents did not

waive the protections provided by Exemption 7(C) by testifying at

the FOIA requester’s habeas proceeding. Jones v. FBI, 41 F.3d

238, 247 (6th Cir. 1994) (“The fact that an agent decided or was

required to testify or otherwise come forward in other settings

does not give plaintiff a right under FOIA to documents . . .

.”). Exemption 7(C) leaves the decision about whether and how to

reveal personal information to the individual. Reporters Comm.,

489 U.S. at 763. Because there is a valid privacy interest, the

requested documents will only be revealed where “the public

interest sought to be advanced is a significant one, an interest

more specific than having the information for its own sake.”

Favish, 541 U.S. at 172.

B. The Public Interest

Whether an invasion of privacy is unwarranted will “turn on

the nature of the requested document and its relationship to ‘the

basic purpose of the [FOIA] to open agency action to the light of

public scrutiny.’” Reporters Comm., 489 U.S. at 772 (quoting

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Dep’t of the Air Force v. Rose, 425 U.S. 352, 372 (1976)).

Neither the specific purpose for which the information is

requested nor the identity of the requesting party has any

bearing on the evaluation. Id. at 771; Fed. Labor Relations

Auth. v. U.S. Dep’t of Navy, 941 F.2d 49, 56 (1st Cir. 1991).

The asserted public interest must shed light on a federal

agency’s performance of its statutory duties. Reporters Comm.,

489 U.S. at 773; Maynard, 986 F.2d at 566. Indeed, the “core

purpose” of the FOIA, to which the public interest must relate,

is to ensure that government activities are open to public

scrutiny, not that information about private citizens, which

happens to be in the government’s possession, be disclosed.

Reporters Comm., 489 U.S. at 774; Maynard, 986 F.2d at 566.

Carpenter asserts that there is a valid public interest in

“determin[ing] whether a business rival has provided the

Government with false information about him” so that Carpenter

can correct any misleading or incorrect information.

(Appellant’s Br. 8.)

To the extent Carpenter is seeking to obtain the documents

that Koresko provided to the government, no public interest is

served because reviewing such documents tells the public nothing

about the actions of the government. Furthermore, Carpenter does

not seek to determine how the government responded to the

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information, but instead whether Koresko revealed any information

or documents. In Reporters Committee, the Supreme Court held

that the rap sheet of a Mafia boss was not the subject of public

concern despite the allegation that the Mafia boss had obtained

Department of Defense contracts through a corrupt Congressman.

489 U.S. at 774-75. The Court stated that the rap sheet would

reveal nothing about the Congressman’s behavior or about the

conduct of the Department of Defense. Id.; accord Maynard, 986

F.2d at 566 (providing that the disclosure of the names of low-

level FBI agents and support personnel would not reveal what the

government is up to). Similarly, revealing any records or

information supplied by Koresko, a private third party, would

tell the public nothing about the actions of an AUSA or the

Department of Justice. Further, were the Court to find a valid

public interest here, virtually every criminal defendant or

target of an FBI investigation would be entitled to FOIA

disclosure by insinuating that the government had acted on false

information.

Rather, the asserted public interest in those documents

centers on Carpenter’s criminal trial and his own innocence.

Here, it is telling that Carpenter requested materials similar to

those that are the subject of the FOIA request through discovery

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in his criminal trial.11 There is no public interest in

supplementing an individual’s request for discovery. NLRB v.

Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978) (providing

that the “FOIA was not intended to function as a private

discovery tool”); New England Apple Council, 725 F.2d at 139.

Further, the innocence or guilt of a particular defendant tells

the Court “nothing about matters of substantive law enforcement

policy that are properly the subject of public concern.” Neely

v. FBI, 208 F.3d 461, 464 (4th Cir. 2000) (holding that there is

no cognizable FOIA interest in a defendant’s need for information

to establish his own innocence).

To the extent, however, that any of the requested material

would reveal how the government responded to informants and

others who offer information, a public interest might be served.

Carpenter’s request for “[a]ll documents that refer to, relate

to, or reflect any conversation with . . . Koresko” could shed

light on possible government misconduct. Nonetheless, Carpenter

11
See supra note 5. Further, in Carpenter’s Emergency Motion
for Summary Judgment, he requested oral argument “as soon as
possible because he need[ed] the requested documents to help him
prepare his defense in United States v. Carpenter . . . .”

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has failed to adequately support disclosure on that basis.12 As

the Supreme Court held in Favish,

where there is a privacy interest protected by
Exemption 7(C) and the public interest being asserted
is to show that responsible officials acted negligently
or otherwise improperly in the performance of their
duties, the requester must establish more than a bare
suspicion in order to obtain disclosure. Rather, the
requester must produce evidence that would warrant a
belief by a reasonable person that the alleged
Government impropriety might have occurred.

541 U.S. at 174. Carpenter’s bare suspicion does not amount to

evidence sufficient to allow a reasonable person to believe that

government impropriety occurred.

Because Carpenter has failed to establish a valid public

interest in the disclosure of the requested documents and

Exemption 7(C) protects the privacy interest of Koresko, we hold

that Exemption 7(C) warrants that the requested documents be

withheld in their entirety.

Because the lack of a public interest is determinative, we

turn only briefly to Carpenter’s additional arguments regarding

the Vaughn index and segregation of exempt portions of the

record.

12
At various points in the litigation, Carpenter insinuated
that the USAO engaged in selective prosecution. Because Carpenter
failed to raise this point in his opening brief, it is waived on
appeal. See Levin, 459 F.3d at 76.

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 C. The Vaughn Index and Segregation

To provide for the broadest possible disclosure and further

the adversary process, courts often require the withholding

agency to provide a “Vaughn” index.13 Church of Scientology

Int’l, 30 F.3d at 228; Providence Journal Co., 981 F.2d at 556.

Generally, a Vaughn index provides a broad description of the

requested material or information, and the agency’s reason for

withholding each document or portion of a document. See Church

of Scientology Int’l, 30 F.3d at 228. Nonetheless, a more

detailed statement of the requested materials may not be

necessary where the statement would reveal the very information

sought to be protected. See Maynard, 986 F.2d at 557.

The Vaughn index provided to the plaintiff and the court in

this case consisted of a declaration by John F. Boseker (“Boseker

declaration”), an Attorney Adviser in the Executive Office for

the United States Attorneys, United States Department of Justice.

The Boseker declaration set forth the Government’s Glomar

response, asserted that the requested documents were not required

to be disclosed under Exemption 7(C) and provided that there were

no reasonably segregable portions of the materials. Because

Carpenter failed to assert a cognizable public interest, the

government was not obligated to provide additional detail. See

13
See Vaughn v. Rosen, 484 F.2d 820, 824 (D.C. Cir. 1973).

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id. Even if Carpenter had asserted a valid public interest, the

appropriate method for a detailed evaluation of the competing

interests would have been through an in camera review because a

standard Vaughn index might result in disclosure of the very

information that the government attempted to protect. Id.

(“When, as here, the agency, for good reason, does not furnish

publicly the kind of detail required for a satisfactory Vaughn

index, a district court may review documents in camera.”).

The FOIA further mandates that “any reasonably segregable

portion of a record shall be provided to any person requesting

such records after deletion of the portions which are exempt

under [section 552(b)].” 5 U.S.C. § 552(b). Non-exempt

information or materials may be withheld only where it “is so

interspersed with exempt material that separation by the agency,

and policing of this by the courts would impose an inordinate

burden.” Church of Scientology Int’l, 30 F.3d at 228 (quoting

Wightman v. Bureau of Alcohol, Tobacco & Firearms, 755 F.2d 979,

983 (1st Cir. 1985)). The district court, in deciding that the

materials were exempt from disclosure, failed to make an express

finding that no part of the requested documents were non-exempt

and segregable from exempt portions.

Nonetheless, the Court is satisfied that the in camera

afforded the district court the opportunity to perform a review

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of the documents in light of the asserted exemptions and make the

required determinations regarding segregation. See Church of

Scientology Int’l, 30 F.3d at 233. Further, having reviewed the

documents, we find that there are no reasonably segregable

portions.

III. Conclusion

For these reasons, the order of the district court is

affirmed.

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