Roth Ex Rel. Bower v. United States Department of Justice

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 25, 2011 Decided June 28, 2011

No. 09-5428

ANTHONY C. ROTH, ON BEHALF OF LESTER L. BOWER, JR.,
APPELLANT

v.

UNITED STATES DEPARTMENT OF JUSTICE,
APPELLEE

Appeal from the United States District Court
for the District of Columbia
(No. 1:08-cv-00822)

Peter Buscemi argued the cause for appellant. With him
on the briefs were Grace E. Speights and Anthony C. Roth.

Rhonda C. Fields, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Ronald C.
Machen, Jr., U.S. Attorney, and R. Craig Lawrence, Assistant
U.S. Attorney.

Before: ROGERS, TATEL, and KAVANAUGH, Circuit
Judges.

Opinion for the Court filed by Circuit Judge TATEL.
 2
Opinion concurring in part and dissenting in part filed by
Circuit Judge KAVANAUGH.

TATEL, Circuit Judge: In this Freedom of Information
Act case, a Texas death-row inmate seeks information from
the Federal Bureau of Investigation that he alleges might
corroborate his claim that four other men actually committed
the quadruple homicide for which he was convicted. The FBI
provided a so-called Glomar response, neither confirming nor
denying whether it has records regarding three of the four
men (the fourth has died). The FBI defends this response
under FOIA Exemption 7(C), which permits agencies to
withhold information contained in law-enforcement records to
protect against unwarranted invasions of personal privacy.
Applying the Supreme Court’s decision in National Archives
& Records Administration v. Favish, we conclude that (1) the
public has an interest in knowing whether the federal
government is withholding information that could corroborate
a death-row inmate’s claim of innocence, and (2) that interest
outweighs the three men’s privacy interest in having the FBI
not disclose whether it possesses any information linking
them to the murders. We thus reverse the district court’s
approval of the FBI’s Glomar response. And with only minor
exceptions, we affirm the district court’s rejection of
appellant’s other arguments.

I.
Appellant Anthony Roth represents Lester Leroy Bower,
Jr., who is on death row in Texas for four murders committed
over a quarter century ago. In January 2008, Roth filed FOIA
requests with the FBI and the Executive Office for United
States Attorneys seeking information concerning the FBI’s
investigation of the murders and about four individuals who
Bower claims are the real killers. Although Bower was
prosecuted by the state of Texas, the FBI, believing that the
 3
murders implicated various federal laws, jointly investigated
the crime with local authorities. An Assistant United States
Attorney served as a member of the prosecution team.

“FOIA requires every federal agency, upon request, to
make ‘promptly available to any person’ any ‘records’ so long
as the request ‘reasonably describes such records.’ ”
Assassination Archives & Research Ctr. v. CIA, 334 F.3d 55,
57 (D.C. Cir. 2003) (quoting 5 U.S.C. § 552(a)(3)(A)).
Although the Act “reflects a general philosophy of full agency
disclosure,” it “provides for several exemptions under which
an agency may deny disclosure of the requested records.” Id.
(internal quotation marks omitted). The agency “bears the
burden of establishing the applicability” of any exemption it
invokes, and “even if [the] agency establishes an exemption,
it must nonetheless disclose all reasonably segregable,
nonexempt portions of the requested record(s).” Id. at 57–58;
see also 5 U.S.C. § 552(a)(4)(B), (b). In this case, we must
consider whether the FBI properly withheld information
responsive to Roth’s FOIA requests under three statutory
exemptions: Exemption 6, covering “personnel and medical
files and similar files the disclosure of which would constitute
a clearly unwarranted invasion of personal privacy”;
Exemption 7(C), covering “records or information compiled
for law enforcement purposes,” the disclosure of which
“could reasonably be expected to constitute an unwarranted
invasion of personal privacy”; and Exemption 7(D), covering
(among other things) records or information “compiled by
criminal law enforcement authorit[ies] in the course of a
criminal investigation” that “could reasonably be expected to
disclose the identity of a confidential source” or “information
furnished by” such a source. 5 U.S.C. § 552(b)(6), (7)(C)–
(D).
 4
Understanding the FOIA issues in this case requires fairly
detailed knowledge of the facts underlying Bower’s capital-
murder convictions. On the evening of October 8, 1983, law
enforcement authorities discovered the bodies of Bobby Glen
Tate, Ronald Mays, Philip Good, and Jerry Mack Brown at
Tate’s ranch near Sherman, Texas. Bower v. State, 769
S.W.2d 887, 889–90 (Tex. Crim. App. 1989), overruled in
part by Heitman v. State, 815 S.W.2d 681 (Tex. Crim. App.
1991). From the victims’ bodies, investigators retrieved
eleven .22-caliber, subsonic, hollow-point bullets
manufactured by Julio Fiocchi. Id. at 890. Tests run on those
bullets and their shell casings indicated that “the shots were
fired from either an AR-7 .22 caliber rifle, a Ruger .22 caliber
semi-automatic pistol, or a High Standard .22 caliber semi-
automatic pistol.” Id. Markings on the bullets and other
forensic evidence revealed that a silencer had been used. Id.

The victims’ bodies were found in a hangar where Tate
stored ultralight aircraft. Id. at 889. Although an ultralight
owned by another person was in the hangar when the bodies
were discovered, Tate’s ultralight was missing. Id. at 889–90.
Before the shootings, Philip Good had been assisting Tate in
his effort to sell his ultralight. Id. at 889. Good’s widow
testified that shortly before the murders, Good had told her
that he thought he had found a buyer and that the buyer was
planning to pick up Tate’s ultralight on October 8. Id.

Records showed that Bower made three calls to the Good
residence in the days leading up to the murders. Id. at 891.
Although Bower admitted calling to inquire about an
advertisement Good had placed in Glider Rider magazine, he
told FBI investigators that “he had never bought an ultra light,
that he had not been in Sherman on the day of the murders,
that he had not met Philip Good on the day of the murders and
had never met him in person, that he did not know where the
 5
missing ultra light was, and that he had never seen the missing
ultra light.” Id. at 891–92. Bower also admitted to owning a
number of firearms but denied owning a .22-caliber handgun.
Id. at 891. At the time, Bower was licensed to sell firearms
and ammunition. Id. at 892.

Searching Bower’s home, law enforcement officers
found, among other things, an instruction manual for a Ruger
.22-caliber pistol; information on silencers; a form letter from
Catawba Enterprises, a company that dealt primarily in
silencer parts; and a record of the firearms that Bower had
acquired and sold, which showed that he had purchased a
Ruger RST-6 .22-caliber pistol on February 12, 1982, and
then sold it to himself on March 1, 1982. Id. In Bower’s
garage, authorities discovered two ultralight tires and rims
with the name “Tate” scratched into each rim. Id. They also
seized ultralight tubing that later tests revealed bore a
fingerprint from one of the murder victims. Id. In addition,
authorities discovered a pair of rubber boots and a blue nylon
bag, both of which were stained with blood. Id. at 892–93.

The investigation also revealed that the .22-caliber
subsonic Julio Fiocchi bullets used in the murders were
“specialty item[s]” not sold “over the counter” at sporting-
goods stores. Id. at 893. Records of Bingham Limited, the
sole United States distributor of Julio Fiocchi ammunition,
indicated that the company “had shipped three boxes of
Fiocchi .22 long rifle sub-sonic hollow point ammunition to
[Bower] on February 12, 1982 and five more boxes on
December 10, 1982.” Id.

Bower was convicted of the four murders and sentenced
to death in April 1984. After Bower’s efforts to overturn his
sentence and conviction on direct appeal and through a state
habeas petition failed, he filed a federal habeas petition under
 6
28 U.S.C. § 2254 in the U.S. District Court for the Eastern
District of Texas. See Bower v. Quarterman, 497 F.3d 459,
465–66 (5th Cir. 2007). Among other things, Bower argued
that his trial attorney was ineffective and that the government
had withheld material, exculpatory evidence in violation of its
obligations under Brady v. Maryland, 373 U.S. 83, 87 (1963).

In June 2000, the district court held an evidentiary
hearing on Bower’s claim of ineffective assistance of counsel
at which Bower testified—something he had not done at his
criminal trial. Bower v. Director, Tex. Dep’t of Crim. Justice–
Inst’l Div., No. 1:92cv182, slip op. at 1, 25, 28–29 (E.D. Tex.
Sept. 6, 2002) (“Bower Habeas Op.”). Bower explained that
he contacted Philip Good in the fall of 1983 because he was
interested in purchasing an ultralight airplane. Id. at 25. Good
then introduced Bower to Tate, who wanted to sell his
ultralight. Id. at 25–27. According to Bower, he met Good and
Tate at Tate’s ranch around 3:00 p.m. on October 8. Id. at 26.
After agreeing to buy the ultralight, Bower gave Tate $3000
and wrote an IOU for $1500 on a business card. Id. at 26–27.
Bower testified that he then left the ranch with the ultralight at
approximately 4:00 p.m. Id. at 27.

Bower’s testimony in the habeas proceedings
contradicted his earlier statements to FBI investigators—that
he had not gone to Sherman to meet Good and had not
purchased Tate’s ultralight. Bower, 769 S.W.2d at 891–92.
Nevertheless, Roth—Bower’s attorney and appellant in this
case—contends that “[c]ritical components of . . . Bower’s
account are corroborated” by evidence in the prosecution’s
investigative files. Appellant’s Opening Br. 6. Specifically, he
points to evidence that soon after the shootings, Tate’s widow
called the local sheriff’s office to ask whether “$3,000 or a
large check” had been found on Tate’s body, as well as to
evidence that the medical examiner discovered a single
 7
business card, later lost by law enforcement officials, in
Tate’s shirt pocket. Id. at 6–7. Furthermore, and central to this
case, two witnesses have come forward since Bower’s
criminal trial and provided sworn statements indicating that
the murders were committed not by Bower, but instead by
four Oklahoma drug dealers: Brett (“Bear”) Leckie, Chestley
(“Ches”) Galen Gordon, Lynn Langford, and Robert
(“Rocky”) T. Ford. See id. at 7–10; Compl. ¶ 12. The first
witness, Langford’s girlfriend at the time of the murders,
testified at the Eastern District of Texas habeas hearing that
she had driven with Langford from Hillsboro, Texas, to
Lexington, Oklahoma, the day after the shootings. Bower
Habeas Op., No. 1:92cv182, slip op. at 23. According to the
ex-girlfriend, when the couple passed through Sherman,
Langford “got down low in the seat and stated that he had
killed some people the day before in Sherman in a drug deal
that went bad.” Id. About a week later, the witness testified,
“she overheard [Langford] and another man named ‘Ches’
bragging about the killings and how they had stolen an
ultralight.” Id. According to Roth, the second witness,
Leckie’s widow, has stated in a sworn affidavit that she
overheard various conversations from late 1983 through 1985
in which “her husband and his friends, including Ches and
Lynn, talk[ed] about four men who were shot at an airplane
hangar in Sherman, Texas over a drug deal that went bad.”
Appellant’s Opening Br. 9.

After the district court denied Bower’s habeas petition,
Bower filed a motion to alter or amend the judgment, arguing
(among other things) that the court had failed to fully address
his Brady claim. In particular, Bower contended that
information produced by the FBI in response to FOIA
requests filed by his habeas attorneys demonstrated that
prosecutors in his criminal case had withheld material,
exculpatory evidence. Bower’s habeas attorneys first filed a
 8
FOIA request with the FBI in 1989. The FBI responded in
1990 by releasing approximately 850 pages of documents,
many “extensively redacted.” Roth Decl. ¶ 5. In November
1999, Bower’s attorneys filed another request, which they
subsequently asked the FBI to expedite after the Eastern
District of Texas granted Bower’s request for an evidentiary
hearing. But the FBI failed to release any responsive materials
until January 31, 2001—after the district court had concluded
its evidentiary hearing but before it had issued its decision
denying Bower’s habeas petition. The FBI’s 2001 FOIA
response included approximately 1500 pages, far more than
the 850 released in 1990, and many of the previously released
documents reflected fewer redactions. According to Roth, the
FBI’s 2001 FOIA response revealed five types of material,
exculpatory evidence not previously made available to
Bower’s trial or habeas counsel:

1. Tate was involved in illegal gambling—in particular,
“cock fighting”—and drug dealing and may have been
killed because “he had used the proceeds from drug
sales to pay off his gambling debts instead of repaying
his drug source.” Appellant’s Opening Br. 13.

2. An FBI agent was able to find and purchase Julio
Fiocchi .22-caliber subsonic ammunition at a Dallas
gun show, thus undermining the prosecution’s
portrayal of the ammunition as “rare,” “unusual,”
“exotic,” and “unique.” Appellant’s Reply Br. 19–20
(internal quotation marks omitted).

3. Although FBI agents “had collected samples of
[Fiocchi] ammunition from the same lot number as
had been sold to . . . Bower . . . in order to compare
the lead bullets’ ‘elemental analysis’ with the bullets
taken from the victims’ bodies,” the Assistant United
 9
States Attorney working on the case had a
“discussion” with FBI agents on April 11, 1984,
following which the FBI terminated its effort before it
had completed its analysis of the bullets. Appellant’s
Opening Br. 14.

4. Contrary to the prosecution’s claim that Fiocchi .22-
caliber subsonic ammunition has but one use—killing
people—“[n]otes of FBI interviews with persons who
had purchased [the ammunition] disclosed that the
ammunition was used” for various legitimate
purposes, including reducing noise in indoor shooting
ranges, teaching shooting to people who do not like
loud noises, and eliminating “varmint[s] in a
populated area without alarming the entire
neighborhood.” Id. at 14–15.

5. Catawba silencer tubes for Ruger pistols “were readily
available from many sources,” thus “undermin[ing]
the prosecution’s effort to ascribe sinister significance
to the fact that . . . Bower had once placed an order
with Catawba.” Id. at 15.

In ruling on Bower’s motion to alter or amend the
judgment, the district court concluded that Bower had failed
to show that his Brady rights had been violated. The court
observed that Bower’s trial attorney admitted that he was
aware of rumors that “some of the victims were engaged in
nefarious activities such as cock fighting and drug dealing.”
Bower v. Director, Tex. Dep’t of Crim. Justice–Inst’l Div.,
No. 92cv182, slip op. at 14–15 (E.D. Tex. June 13, 2003). As
a result, the district court concluded, the FBI’s failure to
disclose the evidence its agents collected regarding Tate’s
illicit activities “constitute[d] harmless error.” Id. at 15. The
district court also determined that (1) the fact that the
 10
ammunition used to commit the murders was available at gun
shows did “not necessarily mean that it [was] not rare and/or
exotic”; (2) the FBI’s failure to disclose that its investigation
revealed that subsonic ammunition could be used for
legitimate purposes was “harmless error” because “Bower’s
counsel testified that he did not find Bower’s purchase of
subsonic ammunition suspicious,” thus indicating that he
“was able to think of non-criminal uses for the ammunition”;
and (3) evidence that “other individuals were able, after being
requested by the F.B.I., to obtain silencer tubes through mail
order does not establish that many other people in [the
Sherman area] actually owned such weaponry at the time the
killings occurred.” Id. at 13–14. The district court never
discussed the evidence indicating that just as Bower’s trial
was beginning, the FBI called off a planned comparison
between the bullets extracted from the victims’ bodies and
bullets from the same lot number as those purchased by
Bower.

Although the district court denied Bower’s habeas
petition, it granted Bower a certificate of appealability on his
claim of ineffective assistance of counsel and his Brady claim.
See 28 U.S.C. § 2253(c) (providing that a state prisoner may
not appeal a district court’s denial of his habeas petition
without first obtaining a “certificate of appealability,” which
may be issued “only if the applicant has made a substantial
showing of the denial of a constitutional right”). The Fifth
Circuit affirmed. With respect to Bower’s Brady claim, the
Fifth Circuit determined that “[n]one of the evidence argued
to support . . . [the] claim, in the form of over 2,000 pages of
FBI files, is exculpatory; that is, none of the evidence is
sufficient to ‘undermine confidence in the jury’s verdict.’ ”
Bower, 497 F.3d at 477 (quoting Spence v. Johnson, 80 F.3d
989, 999 (5th Cir. 1996)). The court emphasized that the FBI
documents contained no “evidence linking the murders to the
 11
victims’ alleged illegal activity.” Id. Instead, the documents
merely summarized investigative theories of which Bower’s
counsel “was aware . . . but didn’t extensively pursue
himself.” Id. The court also observed that the documents’
references to individuals who had purchased Fiocchi
ammunition for legitimate purposes did not “directly
contradict the state’s evidence that the ammunition was not
widely available.” Id. Ultimately, the court concluded that
although the documents disclosed in the FBI’s 2001 FOIA
response “provid[ed] some support for an alternative theory of
the crime, a theory which Bower’s counsel was well aware of,
none of the FBI files contradict[ed] the circumstantial
evidence used by the state to convict Bower.” Id.
Accordingly, the court concluded that the withheld evidence
was not material and thus that the FBI’s failure to disclose the
evidence to Bower’s trial attorney did not violate Brady. Id.

A Texas state court stayed Bower’s execution in July
2008 and subsequently granted his motion for DNA testing of
certain crime scene evidence. Those state court proceedings
remain pending, and no execution date is currently scheduled.

Roth submitted the FOIA requests at issue in this case in
January 2008. Since the parties no longer dispute any issues
regarding the request Roth addressed to the Executive Office
for United States Attorneys, we shall focus exclusively on
Roth’s two requests for documents from the FBI. Roth v. U.S.
Dep’t of Justice, 656 F. Supp. 2d 153, 159 n.3 (D.D.C. 2009).
In one request Roth sought “any and all records” relating to
Jerry Buckner, Bower’s trial attorney, and the four individuals
who Bower alleges were the real killers—Leckie, Gordon,
Langford, and Ford. The second request sought documents
from particular FBI files containing information regarding its
investigation of the 1983 murders. See id. at 157 n.2.
 12
The FBI gave a “Glomar response” to Roth’s first
request. Id. at 166. In such a response the government neither
confirms nor denies the existence of the requested records.
The response is named for the Hughes Glomar Explorer, a
ship used in a classified Central Intelligence Agency project
“to raise a sunken Soviet submarine from the floor of the
Pacific Ocean to recover the missiles, codes, and
communications equipment onboard for analysis by United
States military and intelligence experts.” Phillippi v. CIA, 655
F.2d 1325, 1327 (D.C. Cir. 1981); see also Military Audit
Project v. Casey, 656 F.2d 724, 728–29 (D.C. Cir. 1981);
Matthew Aid, Project Azorian: The CIA’s Declassified
History of the Glomar Explorer, Nat’l Security Archive,
http://www.gwu.edu/~nsarchiv/nukevault/ebb305/index.htm
(Feb. 12, 2010) (providing a link to a partially declassified
article about the Hughes Glomar Explorer from the fall 1985
edition of the CIA’s in-house journal Studies in Intelligence).
Responding to a journalist’s FOIA request for records
regarding the CIA’s alleged efforts to convince media outlets
not to make public what they had learned about the Hughes
Glomar Explorer, the Agency refused to either confirm or
deny whether it had such records. See Phillippi v. CIA, 546
F.2d 1009, 1011–12 (D.C. Cir. 1976). Thus the term “Glomar
response” entered the FOIA lexicon. In the case before us, the
FBI refused to confirm or deny whether its files contained
information regarding the five individuals named in Roth’s
request without proof that they were either dead or had
consented to the release of the information. Roth, 656 F.
Supp. 2d at 158. In support of this Glomar response, the FBI
relied on FOIA Exemptions 6 and 7(C), which, as explained
above, exempt certain government documents from disclosure
to protect the privacy interests of third parties. See 5 U.S.C. §
552(b)(6), (7)(C). The FBI later processed Roth’s request
regarding Leckie after Roth provided evidence that Leckie
had died, and Roth has dropped his request for information
 13
regarding Jerry Buckner. Roth, 656 F. Supp. 2d at 158. Thus,
only the FBI’s Glomar responses regarding Gordon,
Langford, and Ford remain at issue. Id.

With respect to Roth’s second FOIA request—for records
contained in particular FBI files—only 62 pages of documents
are still at issue, 36 of which the FBI has withheld in their
entirety and 26 of which have been released but contain
redactions that Roth claims the FBI has failed to adequately
justify. According to the FBI, it has properly withheld
information contained in these documents under FOIA
Exemptions 6 and 7(C), as well as Exemption 7(D), which, as
we have explained, protects from disclosure criminal-
investigative records that if produced “could reasonably be
expected to disclose the identity of a confidential source” or
“information furnished by” such a source. 5 U.S.C. §
552(b)(7)(D).

The FBI provided the district court with a Vaughn index
and then a supplemental Vaughn index that described the
withheld information and explained its reasons for refusing to
disclose it. See Vaughn v. Rosen, 484 F.2d 820, 826–28 (D.C.
Cir. 1973) (requiring agencies resisting FOIA disclosure to
index the information they are withholding and to provide
non-conclusory justifications for doing so). The district court
reviewed in camera the disputed documents that were
responsive to Roth’s second FOIA request, and those
documents have been submitted for our in camera review as
well. See 5 U.S.C. § 552(a)(4)(B) (permitting a district court
in a FOIA case to examine withheld documents in camera).
Importantly, since the FBI provided a Glomar response to
Roth’s FOIA request for information concerning Gordon,
Langford, and Ford, we have no way of knowing whether the
FBI has information linking the men to the 1983 murders in
files other than those listed in Roth’s second FOIA request. In
 14
other words, we do not know whether the documents the FBI
produced for in camera review are the only documents in the
FBI’s possession that might implicate Gordon, Langford, or
Ford.

Ruling on the FBI’s motion for summary judgment, the
district court determined that the Glomar response was proper
and that, with only a few exceptions, the FBI’s withholding of
information from the documents submitted for in camera
review found support in one or more FOIA exemptions. See
Roth, 656 F. Supp. 2d at 159–67. On appeal, Roth challenges
the district court’s conclusions (1) that he had failed to
identify a sufficiently compelling public interest to justify the
disclosure of information that might intrude on third-party
privacy interests protected by Exemptions 6 and 7(C), and (2)
that the government had satisfied its burden of proving that
the information withheld under Exemption 7(D) was
furnished by or could reasonably be expected to disclose the
identity of a confidential source. Our review of the district
court’s summary judgment decision is de novo. See Juarez v.
Dep’t of Justice, 518 F.3d 54, 58 (D.C. Cir. 2008).

II.
In providing its Glomar response to Roth’s request for
information regarding Gordon, Langford, and Ford, the FBI
relied on Exemptions 6 and 7(C), arguing that the mere act of
confirming whether it even has records regarding these men
would tend to associate them with criminal activity, thus
constituting an unwarranted invasion of their privacy. The
FBI also invoked these exemptions to justify withholding
information contained in the documents submitted for in
camera review. In particular, it sought to protect the privacy
interests of “local law enforcement employees; third parties
merely mentioned in FBI records; state, local, and non-FBI
federal government personnel; third parties of investigative
 15
interest; third parties who provided information to the FBI;
and commercial institution personnel [i.e., individuals
working for retailers, manufacturers, and other commercial
entities].” Roth, 656 F. Supp. 2d at 161–62 (footnotes
omitted).

Exemption 7(C), which requires the government to prove
only that disclosure “could reasonably be expected to
constitute an unwarranted invasion of personal privacy,” is
“somewhat broader” than Exemption 6, which requires proof
of a “clearly unwarranted invasion of personal privacy.” U.S.
Dep’t of Justice v. Reporters Comm. for Freedom of the
Press, 489 U.S. 749, 756 (1989). If the information withheld
here was “compiled for law enforcement purposes,” thus
implicating Exemption 7(C), then we would have no need to
consider Exemption 6 separately because all information that
would fall within the scope of Exemption 6 would also be
immune from disclosure under Exemption 7(C).

Although not disputing that the information contained in
the documents submitted for in camera review was “compiled
for law enforcement purposes,” Roth contends that the FBI
has failed to demonstrate that any undisclosed records it
might have regarding Gordon, Langford, or Ford were
compiled for such purposes. As Roth correctly notes, “FBI
records are not law enforcement records [under FOIA] simply
by virtue of the function that the FBI serves.” Vymetalik v.
FBI, 785 F.2d 1090, 1095 (D.C. Cir. 1986). For example,
records the FBI compiles regarding a job applicant may fall
outside the scope of Exemption 7(C). See id. at 1096
(distinguishing “between records generated by a law
enforcement investigation and those generated by an
employment investigation”). Furthermore, Exemption 7(C)
would have no applicability to information obtained in an
illicit intelligence-gathering operation lacking any rational
 16
nexus to the FBI’s law-enforcement duties. See Pratt v.
Webster, 673 F.2d 408, 419–21 (D.C. Cir. 1982). In this case,
however, there is no reason to believe that the FBI would
have compiled information regarding Gordon, Langford, or
Ford outside the context of a legitimate law-enforcement
investigation. Accordingly, the FBI interpreted Roth’s request
for information regarding these men “as a request for criminal
investigative information about . . . third parties.” Second
Hardy Decl. ¶ 24. As the FBI points out, by stating that “he is
seeking ‘documents relating to the persons that have been
identified as the real killers,’ ” Roth has essentially confirmed
that the information he seeks was likely compiled for law-
enforcement purposes. Id. (quoting Pl.’s Mem. in Opp’n to
Mot. for Summ. J. 7). Like the district court, we thus conclude
that the FBI has satisfied its threshold burden of showing that
all documents responsive to Roth’s requests, including any
that might relate to Gordon, Langford, or Ford, were compiled
for law enforcement purposes. Roth, 656 F. Supp. 2d at 161
n.6, 166. As a result, we shall focus on Exemption 7(C) rather
than Exemption 6 since it is the broader of the two.

To determine whether disclosure “could reasonably be
expected to constitute an unwarranted invasion of personal
privacy” for purposes of Exemption 7(C), we must “balance
the privacy interests that would be compromised by disclosure
against the public interest in release of the requested
information.” Davis v. U.S. Dep’t of Justice, 968 F.2d 1276,
1281 (D.C. Cir. 1992). We have no doubt that Roth’s FOIA
requests implicate significant privacy interests. As we have
“long recognized,” the “ ‘mention of an individual’s name in
a law enforcement file will engender comment and
speculation and carries a stigmatizing connotation.’ ”
Schrecker v. U.S. Dep’t of Justice, 349 F.3d 657, 666 (D.C.
Cir. 2003) (quoting Fitzgibbon v. CIA, 911 F.2d 755, 767
(D.C. Cir. 1990)). We have thus held that not only the targets
 17
of law-enforcement investigations, but also “witnesses,
informants, and . . . investigating agents” have a “substantial
interest” in ensuring that their relationship to the
investigations “remains secret.” Id. (internal quotation marks
omitted); see also SafeCard Servs., Inc. v. SEC, 926 F.2d
1197, 1205 (D.C. Cir. 1991).

Roth argues that the privacy interests implicated by his
FOIA requests are attenuated for two reasons: (1) more than a
quarter century has passed since the 1983 murders, and (2)
since Gordon, Langford, and Ford have significant criminal
records, they would likely suffer less embarrassment and
reputational harm from being associated with the FBI’s
investigation of the murders than would ordinary, law-abiding
citizens. Especially given the particularly heinous nature of
the 1983 murders, however, neither of these arguments is
persuasive. If, as we held in Schrecker v. Department of
Justice, 349 F.3d at 666, the passage of approximately a half
century did not “materially diminish” individuals’ privacy
interests in not being associated with McCarthy-era
investigations, then certainly individuals continue to have a
significant interest in not being associated with an
investigation into a brutal quadruple homicide committed less
than thirty years ago. Furthermore, Roth’s argument that the
privacy interests of Gordon, Langford, and Ford are
diminished by their criminal records runs contrary to the
Supreme Court’s recognition in Department of Justice v.
Reporters Committee for Freedom of the Press that even
convicted criminals have a substantial privacy interest in their
“rap sheets.” 489 U.S. at 762–71, 776–80; see also
McNamera v. U.S. Dep’t of Justice, 974 F. Supp. 946, 959
(W.D. Tex. 1997) (noting that “the court was unable to find
any case holding that a prisoner has fewer privacy rights in
disclosure of private information, other than for information
made public during the criminal proceedings, than the rest of
 18
us”). But even if individuals with criminal records might in
some cases have a reduced privacy interest in not being
associated with criminal activity because their reputations
have already been tarnished by their previous crimes, this is
hardly such a case. Most of Gordon, Langford, and Ford’s
convictions are for firearms and drug offenses. Sikes Decl. ¶¶
4–6. Although Gordon pleaded guilty to assault with a deadly
weapon, id. ¶ 4(b), Roth has presented no evidence that any of
the three men has previously been accused of murder, much
less convicted of the crime. For this reason, being associated
with a quadruple homicide would likely cause them precisely
the type of embarrassment and reputational harm that
Exemption 7(C) is designed to guard against.

Having determined that Roth’s FOIA requests implicate
substantial privacy interests protected by Exemption 7(C), we
turn to the central question in this case: precisely what public
interest would be furthered through disclosure? Roth bears the
burden of showing (1) that “the public interest sought to be
advanced is a significant one, an interest more specific than
having the information for its own sake,” and (2) that the
information he seeks “is likely to advance that interest.” Nat’l
Archives & Records Admin. v. Favish, 541 U.S. 157, 172
(2004). According to Roth, disclosure will further the public
interest in two ways. First, it will advance the public’s interest
in knowing whether the federal government complied with its
Brady obligation to disclose material, exculpatory information
to Bower’s trial counsel. Even though Bower was prosecuted
in a Texas state court rather than a federal court, the
Department of Justice, appellee in this case, does not dispute
that the Assistant United States Attorney who participated in
Bower’s capital murder trial had a duty not only to learn of
any Brady material in the FBI’s possession, but also to
disclose it to Bower’s trial counsel. See Kyles v. Whitley, 514
U.S. 419, 437 (1995) (“[T]he individual prosecutor has a duty
 19
to learn of any favorable evidence known to the others acting
on the government’s behalf in the case, including the
police.”). Second, and more generally, Roth asserts disclosure
will further the public’s interest in knowing whether the FBI
is withholding information that could corroborate a death-row
inmate’s claim of innocence. Although this second public
interest was not mentioned in the district court’s decision and
receives scant attention in the government’s appellate brief,
see Appellee’s Br. 23–24 (suggesting that Roth failed to
articulate the second public interest at the district-court level),
we believe that Roth adequately raised the issue both in the
district court and here. In the district court, Roth argued that
the “[p]roduction of the documents at issue [in this case]
could serve the substantial public interest in avoiding the
execution of an innocent man.” Pl.’s Mem. in Opp’n to Mot.
for Summ. J. 1; see also id. at 26 (“[T]he public interest in
knowing whether the federal government prosecuted and
obtained the death penalty against the proper person
outweighs privacy interests in this twenty-five year old case.”
(bolding and underlining omitted and capitalization of words
altered)). And on appeal, Roth alleges that the “FBI continues
to withhold and redact decades-old documents that may help
to prevent the execution of an innocent man” and asserts,
“The public has a powerful interest in understanding the
procedures and governmental actions that lead to capital
sentences and in ensuring that potentially exculpatory
evidence is disclosed before a person is executed.”
Appellant’s Opening Br. 17, 35; see also id. at 20 (“The
documents requested by Roth touch upon the core objective
of FOIA—to shed light on what the government is up to—at a
time in which the public interest in the death penalty in Texas,
the State’s potential for executing innocent persons, and the
possible withholding of exculpatory material is at a high
level.”).
 20
We pause to emphasize the distinction between the two
types of public interest claimed by Roth. Since the right to the
disclosure of material, exculpatory evidence recognized in
Brady protects a defendant’s right to a fair trial, see Brady,
373 U.S. at 87, the determination of whether information is
“material” for purposes of Brady focuses on how the
information relates to other information known at the time of
trial, see Kyles, 514 U.S. at 434 (“The question is not whether
the defendant would more likely than not have received a
different verdict with the evidence, but whether in its absence
he received a fair trial, understood as a trial resulting in a
verdict worthy of confidence.”). It is possible, however, that
evidence in the government’s possession before trial will
appear material only in light of evidence developed after trial.
Consider this very case. Although the Fifth Circuit found it
unlikely that disclosure of the materials produced in the FBI’s
2001 FOIA response would have made a difference in
Bower’s 1984 trial, see Bower, 497 F.3d at 476–77, since that
trial, witnesses have come forward who have implicated
others in the 1983 murders. The combination of those
statements and the materials contained in the FBI’s 2001
FOIA response could well lead a reasonable person to doubt
Bower’s guilt. In other words, the documents released in 2001
may appear material only in light of the witnesses’ post-trial
statements. The Supreme Court, however, has indicated that
Brady generally “is the wrong framework” for evaluating the
government’s post-trial disclosure obligations. Dist.
Attorney’s Office for the Third Judicial Dist. v. Osborne, 129
S. Ct. 2308, 2320 (2009); see also Skinner v. Switzer, 131 S.
Ct. 1289, 1300 (2011) (“Brady announced a constitutional
requirement addressed first and foremost to the prosecution’s
conduct pretrial.”). Thus, the public’s interest in knowing
whether the federal government complied with its Brady
obligations at the time of Bower’s trial is narrower than and
does not fully encompass the public’s more general interest in
 21
knowing whether the FBI is withholding information that
could corroborate Bower’s claim of innocence.

Furthermore, we have no doubt that the second, non-
Brady-related public interest identified by Roth is substantial.
In recent years, high-profile exonerations of death-row
inmates have generated considerable public interest in the
potential innocence of individuals sentenced to death. See
Death Penalty Info. Ctr., The Innocence List,
http://www.deathpenaltyinfo.org/innocence-list-those-freed-
death-row (last visited June 16, 2011) (listing 138 death-row
inmates who, since 1973, have been pardoned based on new
evidence of innocence or have had their convictions
overturned and either were not retried or were acquitted at
retrial). This interest has manifested itself in several media,
including newspaper articles, editorials, journalistic exposés,
novels, and plays. See, e.g., Jessica Blank & Erik Jensen, The
Exonerated (2004); John Grisham, The Confession (2010);
David Grann, Trial by Fire: Did Texas Execute an Innocent
Man?, New Yorker, Sept. 7, 2009, at 42; see also Editorial,
The Death Penalty: It’s Time for Capital Punishment To
Become Texas History, Houston Chron., Jan. 2, 2011, at B11
(calling for the abolition of the death penalty in Texas because
“accumulating evidence indicates that the current application
of the death penalty in [the state] involves an unacceptably
high risk of killing innocent people”); Tim Madigan, Witness
Says Condemned Man Isn’t Responsible for 1983 Slayings,
Star-Telegram (Ft. Worth, Tex.), June 29, 2008, at 1B
(discussing Bower’s effort to prove his innocence).

The government insists that “Bower’s status as an
individual facing capital punishment should not affect” our
analysis under Exemption 7(C). Appellee’s Br. 37. We
disagree. The fact that Bower has been sentenced to the
ultimate punishment strengthens the public’s interest in
 22
knowing whether the FBI’s files contain information that
could corroborate his claim of innocence. The case on which
the government relies, Loving v. Department of Defense, 550
F.3d 32 (D.C. Cir. 2008), says nothing to the contrary. True,
we said in Loving—which dealt with FOIA Exemption 5, not
Exemption 7(C)—that the fact that the FOIA requester was a
capital prisoner had “no bearing on the merits” of his request.
Id. at 39 (internal quotation marks omitted); see also 5 U.S.C.
§ 552(b)(5) (providing that FOIA’s disclosure requirement
“does not apply to . . . inter-agency or intra-agency
memorandums or letters which would not be available by law
to a party other than an agency in litigation with the agency”).
But this statement merely reiterated what the Supreme Court
said in Reporters Committee: “Except for cases in which the
objection to disclosure is based on a claim of privilege and the
person requesting disclosure is the party protected by the
privilege, the identity of the requesting party has no bearing
on the merits of his or her FOIA request.” Reporters Comm.,
489 U.S. at 771; see also Loving, 550 F.3d at 39 (quoting
Reporters Comm.). This principle requires nothing more than
that our legal analysis remain unaffected by the fact that this
case was brought by a lawyer representing Bower instead of
by a party with no relation to Bower, such as a reporter,
academic, or individual citizen simply interested in Bower’s
case. As we weigh the public interest at stake in this case,
neither Loving nor Reporters Committee bars us from
considering the fact that Bower has been sentenced to death.

Having concluded that the second type of public interest
is both distinct from the first and substantial, we must now
consider whether either of the public interests identified by
Roth requires the FBI to disclose information withheld under
Exemption 7(C). We can easily dispose of Roth’s challenge to
the FBI’s withholding of information from the documents that
we and the district court reviewed in camera. Turning first to
 23
the public’s interest in revealing Brady violations, we highly
doubt that any of the information withheld under Exemption
7(C) qualifies as Brady material. But even if reasonable minds
could disagree on this point, we believe that the privacy
interests of the individuals named in the documents outweigh
any public interest in disclosure. At most, the documents
contain information that one might consider to lie near the
hazy borderline separating material from immaterial evidence.
See Kyles, 514 U.S. at 435 (noting that in determining
whether withheld evidence is “material” for purposes of
Brady, a court should consider whether “the favorable
evidence could reasonably be taken to put the whole case in
such a different light as to undermine confidence in the
verdict,” an inquiry that is difficult for us to undertake here
since Roth has failed to produce the transcripts of Bower’s
trial). Although Bower certainly has an intense personal
interest in obtaining whatever information might bolster the
Brady claims he is presenting in his collateral attacks on his
conviction, Bower’s personal stake in the release of the
requested information is “irrelevant” to the balancing of
public and third-party privacy interests required by
Exemption 7(C). Mays v. DEA, 234 F.3d 1324, 1327 (D.C.
Cir. 2000). FOIA is not a substitute for discovery in criminal
cases or in habeas proceedings. Instead, its purpose is to
protect “the citizens’ right to be informed about ‘what their
government is up to.’ ” Reporters Comm., 489 U.S. at 773
(quoting EPA v. Mink, 410 U.S. 73, 105 (1973) (Douglas, J.,
dissenting)). Although the public might well have a
significant interest in knowing whether the federal
government engaged in blatant Brady violations in a capital
case, we are confident that none of the documents we have
reviewed in camera reveals any such egregious government
misconduct. Cf. Boyd v. Crim. Div. of the U.S. Dep’t of
Justice, 475 F.3d 381, 387–88 (D.C. Cir. 2007) (stating, in a
FOIA case in which a defendant convicted of non-capital drug
 24
and weapons offenses sought records that he claimed might
reveal “Brady-related misconduct,” that a “single instance of
a Brady violation . . . would not suffice to show a pattern of
government wrongdoing as could overcome the significant
privacy interest at stake”).

With respect to the second public interest identified by
Roth—the public’s interest in knowing whether the FBI is
withholding information that could help exonerate a
potentially innocent death-row inmate—our in camera review
also revealed no information withheld under Exemption 7(C)
that would substantially corroborate Bower’s claim that
Leckie, Gordon, Langford, and Ford were the true killers.
True, as Roth argues, “it is entirely possible that the
importance of the withheld documents would only be clear to
one who has extensive knowledge of the Bower trial,
sentencing, and habeas proceedings.” Appellant’s Opening
Br. 39. But we can only weigh the public and private interests
at stake based on the record before us, and it was Roth’s
responsibility to provide the district court and this Court with
the information necessary to perform that balancing. Based on
the information presented to us, we conclude that the FBI
acted appropriately in redacting information under Exemption
7(C) from the in camera documents.

The FBI’s Glomar response to Roth’s request for
information regarding Gordon, Langford, and Ford presents
more difficult issues. Since the FBI has refused to confirm or
deny whether it has information regarding these men, we have
no way of knowing whether any information it might have
would qualify as Brady material or could corroborate Bower’s
claim of innocence. Because Glomar responses are an
exception to the general rule that agencies must acknowledge
the existence of information responsive to a FOIA request and
provide specific, non-conclusory justifications for
 25
withholding that information, see Vaughn, 484 F.2d at 826–
28, they are permitted only when confirming or denying the
existence of records would itself “ ‘cause harm cognizable
under an FOIA exception,’ ” Wolf v. CIA, 473 F.3d 370, 374
(D.C. Cir. 2007) (quoting Gardels v. CIA, 689 F.2d 1100,
1103 (D.C. Cir. 1982)). Thus, in determining whether the FBI
properly provided a Glomar response, we must consider
whether “the fact of the existence or nonexistence of [the
requested] records falls within a FOIA exemption.” Id. Since
merely acknowledging that the FBI has information regarding
Gordon, Langford, and Ford would tend to associate them
with criminal activity, thus impinging on their privacy, the
FBI’s Glomar response, absent a countervailing public
interest in disclosure, was appropriate under Exemption 7(C).
Where, as here, the asserted public interest is the revealing of
government misconduct, the Supreme Court’s decision in
National Archives & Records Administration v. Favish
requires that the FOIA requester “establish more than a bare
suspicion” of misconduct. 541 U.S. at 174. Instead, “the
requester must produce evidence that would warrant a belief
by a reasonable person that the alleged Government
impropriety might have occurred.” Id. Only if Roth satisfies
this threshold requirement will we proceed to balance
Gordon, Langford, and Ford’s interest in having the FBI
neither confirm nor deny the existence of records relating to
them against the public interest at stake. See Boyd, 475 F.3d at
387.

We begin with the first public interest identified by
Roth—the interest in knowing whether the federal
government violated its Brady obligations at the time of
Bower’s trial. As evidence that the federal government might
well have failed to comply with Brady, Roth points to
information that he claims was disclosed for the first time in
the FBI’s 2001 FOIA response. As explained above, the
 26
documents produced in 2001 indicated that one of the murder
victims was involved in illegal gambling and drug dealing;
that Julio Fiocchi .22-caliber subsonic ammunition could be
purchased at gun shows and has legitimate uses; that just as
Bower’s trial was beginning the FBI decided against going
ahead with a planned comparison between the bullets taken
from the victims’ bodies and bullets from the same lot number
as Bower had purchased; and that Catawba silencer tubes are
readily available from many sources.

For its part, the government insists that Roth cannot rely
on the documents produced in 2001 to support his Brady
argument because in the district court he failed to offer any
proof that those documents were not provided to Bower’s trial
counsel in 1984. We agree with Roth that this argument is
“silly.” Appellant’s Reply Br. 1. In the district court, Roth
clearly argued that the 2001 FOIA response contained
undisclosed Brady material. See Compl. ¶ 9 (alleging that the
FBI and the U.S. Attorney’s Office had failed to provide
evidence to Bower’s trial counsel “in violation of Brady v.
Maryland”); Pl.’s Mem. in Opp’n to Def.’s Mot. for Summ. J.
6 (“The information and/or documents withheld from the
1990 FOIA production but produced in 2001 included
evidence that would have supported Mr. Bower’s defense and,
in Plaintiff’s view, constituted material, exculpatory
information that should have been turned over to the defense
before trial, pursuant to Brady v. Maryland . . . .”); id. at 28
(“Through documents that the FBI finally released in 2001 . . .
, Mr. Bower has learned that during his trial, the FBI failed to
produce what he believes is material and exculpatory
information regarding the murders . . . .”). If the government
wished to challenge Roth’s failure to present a sworn
declaration or other evidence demonstrating that the
information produced in 2001 had not previously been
disclosed, it should have done so in the district court. See
 27
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (“[A]
party seeking summary judgment always bears the initial
responsibility of informing the district court of the basis for its
motion, and identifying those portions of ‘the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any,’ which it believes
demonstrate the absence of a genuine issue of material fact.”
(quoting Fed. R. Civ. P. 56(c) (1986))). The government’s
single comment that “Roth ha[d] failed to proffer any
evidence, much less compelling evidence, that the FBI
engaged in any illegal activity” was hardly sufficient to alert
Roth that the government meant to challenge his claim that
the information revealed in 2001 had not previously been
turned over to Bower’s trial attorney. Def.’s Reply & Opp’n
to Pl.’s Cross Mot. 14. Had the government raised this
challenge in the district court, Roth might have responded
with an affidavit stating that the information produced in 2001
was not disclosed at the time of Bower’s trial. See Roth Decl.
¶ 12, Bower v. Director, Tex. Dep’t of Crim. Justice–Inst’l
Div., No. 1:92cv182 (E.D. Tex. July 12, 2002) (averring in a
declaration submitted in Bower’s federal habeas proceeding
that “[m]ost of the documents produced in the 2001 FOIA
response” were not made available to Bower’s trial counsel).
But having failed to raise the argument in the district court in
a manner sufficient to put Roth on notice of the need to rebut
it, the government is barred from doing so for the first time on
appeal. See, e.g., Elliott v. U.S. Dep’t of Agric., 596 F.3d 842,
851 (D.C. Cir. 2010). As a result, we shall assume that the
favorable evidence the FBI released in 2001 had not been
provided to Bower’s trial counsel.

Even under this assumption, however, Roth’s
argument—that the public has a significant interest in
knowing whether the federal government failed to disclose
Brady material regarding Gordon, Langford, or Ford—still
 28
falters at the Favish threshold. Roth argues (1) that the FBI’s
2001 FOIA response contained undisclosed Brady material,
and (2) that one can infer from this fact that the FBI might
have other such material in its possession. But the first step of
this argument fails given the Fifth Circuit’s decision affirming
the denial of Bower’s federal habeas petition. See Bower, 497
F.3d at 476–77. Reviewing the very FBI disclosures Roth
contends constituted Brady material, the Fifth Circuit
concluded that the information “was not material” for
purposes of Brady. Id. at 477. Our case law requires that we
defer to this decision. See Martin v. Dep’t of Justice, 488 F.3d
446, 453, 456–58 (D.C. Cir. 2007) (deferring to a district
court’s decision in a separate habeas proceeding that the
information sought by a FOIA requester was “not Brady
material”).

Having disposed of Roth’s argument that he is entitled to
further disclosures based on the public’s interest in revealing
Brady violations, we turn to the far more interesting question
of whether Roth may overcome the FBI’s Glomar response
based on the public’s more general interest in knowing
whether the FBI is withholding information that could
corroborate Bower’s claim of innocence. To demonstrate that
this interest is likely to be advanced by disclosing whether the
FBI’s files contain records regarding Gordon, Langford, or
Ford, Roth must show that a reasonable person could believe
that the following might be true: (1) that the Oklahoma drug
dealers were the real killers, and (2) that the FBI is
withholding information that could corroborate that theory.
See Favish, 541 U.S. at 174. In our view, Roth has made both
showings.

Since Bower’s trial, two witnesses—Langford’s ex-
girlfriend and Leckie’s widow—have provided sworn
statements implicating the Oklahoma drug dealers. When
 29
combined with the evidence in the FBI’s 2001 FOIA response
that one of the murder victims may have been involved with
illegal gambling and drug dealing and that the ammunition
used in the murders was not as rare as the prosecution claimed
and could be put to legitimate uses, these witnesses’
statements might well cause a reasonable person to doubt
Bower’s guilt. With respect to the second showing Roth must
make—that a reasonable person could believe that the FBI
might be withholding information that could corroborate
Bower’s claim of innocence—there can be no doubt that the
FBI in the past has failed to disclose information favorable to
Bower upon request. The agency’s 2001 FOIA response
contained information that was neither disclosed to Bower’s
trial counsel nor produced in response to similar FOIA
requests submitted on Bower’s behalf in 1989. As explained
above, Bower now relies on some of this previously
undisclosed information to bolster his claim of innocence.
The fact that the FBI withheld such information until 2001,
approximately seventeen years after Bower’s trial, “would
warrant a belief by a reasonable person” that the FBI “might”
have other potentially exculpatory information in its files,
possibly including information regarding Gordon, Langford,
or Ford. Id.

At oral argument, government counsel urged us to
disregard the statements of Langford’s ex-girlfriend because a
state habeas court in Texas found that an affidavit setting
forth her story bore “no indicia of reliability.” Ex parte
Bower, Nos. 33426-A, 33427-A, 33428-A, 33429-A, slip op.
at 2 (Tex. 15th Dist. Ct. Jan. 11, 1990). But by raising this
contention for the first time at oral argument, the government
deprived Roth of a meaningful opportunity to respond. The
argument is thus forfeited. See United States v. Southerland,
486 F.3d 1355, 1360 (D.C. Cir. 2007) (noting that an
argument raised for the first time at oral argument is generally
 30
considered forfeited). In addition, although Roth has not filed
in this litigation the affidavits of Langford’s ex-girlfriend and
Leckie’s widow, the decision denying Bower’s federal habeas
petition describes the testimony given by Langford’s ex-
girlfriend in those proceedings, see Bower Habeas Op., No.
1:92cv182, slip op. at 23–24, and the government’s brief on
appeal neither disputes Roth’s summary of the information
contained in the affidavit of Leckie’s widow nor specifically
challenges Roth’s failure to file the affidavit with the district
court, see United States v. Ford, 184 F.3d 566, 578 n.3 (6th
Cir. 1999) (“Even appellees waive arguments by failing to
brief them.”).

In contrast to Roth’s Brady argument, the deference we
owe the Fifth Circuit’s habeas decision does not prevent us
from concluding that Roth has satisfied the Favish standard
with respect to his claim that the public has an interest in
knowing whether the FBI is withholding information that
could corroborate a death-row inmate’s claim of innocence.
That interest in no way hinges on the doctrinal complexities
of Brady and its progeny. As explained above, it is at best
unclear the extent to which the Brady framework would apply
to evidence whose materiality became apparent only after the
defendant had been convicted and sentenced. See Skinner, 131
S. Ct. at 1300; Osborne, 129 S. Ct. at 2320. Certainly, there is
no indication that the Fifth Circuit, in conducting its Brady
analysis, considered the affidavits of Langford’s ex-girlfriend
and Leckie’s widow. See Bower, 497 F.3d at 476–77. As a
result, there is no conflict between the Fifth Circuit’s
affirmance of the denial of Bower’s habeas petition and our
holding here that Roth has shown that a reasonable person
could believe that the FBI might be withholding information
that could corroborate Bower’s claim of innocence.
 31
Since Roth has satisfied his obligations under Favish, we
must proceed to balance the public and private interests at
stake in this case. Favish, 541 U.S. at 174; see also Boyd, 475
F.3d at 387. Although Gordon, Langford, and Ford have a
significant interest in avoiding any association with a criminal
investigation into a quadruple homicide, see, e.g., Schrecker,
349 F.3d at 666, the public also has a compelling interest in
knowing whether the FBI is refusing to disclose information
that could help exonerate Bower. Weighing the competing
interests, we conclude that the balance tilts decidedly in favor
of disclosing whether the FBI’s files contain information
linking Gordon, Langford, or Ford to the FBI’s investigation
of the killings. As a result, we shall reverse the district court’s
rejection of Roth’s challenge to the FBI’s Glomar response
and remand for further proceedings.

In doing so, however, we emphasize that the FBI need
not disclose whether it has information about the three men
that is unrelated to its investigation into the 1983 murders.
The public’s interest is in knowing whether the FBI’s files
contain information that could corroborate Bower’s claim of
innocence, not in knowing all information the FBI may have
about the three men. That said, the FBI will need to reveal the
existence of any records connecting Gordon, Langford, or
Ford to the agency’s investigation into the 1983 murders. Of
course, if such records exist, they may well fall within one or
more FOIA exemptions. For example, if in the course of its
investigation the FBI obtained the criminal history records of
Gordon, Langford, or Ford, those records would be immune
from disclosure. See Reporters Comm., 489 U.S. at 776–80.
But the mere fact that records fall within a FOIA exemption
provides no justification for failing to acknowledge their
existence. Given the significant public interest in knowing
whether the FBI is withholding information that could
potentially help Bower prove his innocence, the FBI must
 32
either produce any records it has linking Gordon, Langford, or
Ford to its investigation into the four murders, or it must
follow the normal practice in FOIA cases of identifying the
records it has withheld and stating its reasons for doing so.
See Vaughn, 484 F.2d at 826–28.

Taking a different approach, the dissent presents the
following syllogism: (1) our case law has embraced the
categorical rule that the public’s interest in revealing Brady
violations “does not suffice to override the privacy interests of
third parties named in . . . law enforcement files,” Dissenting
Op. at 3; (2) for purposes of FOIA, there is no “meaningful”
difference between the public’s interest in learning of Brady
violations and the public’s interest in uncovering the
government’s post-trial withholding of information that could
corroborate a convicted defendant’s claim of innocence, id. at
4; (3) therefore, our case law supports a categorical rule that
the latter interest cannot outweigh privacy interests protected
by Exemption 7(C), see id. The syllogism fails at the first
premise. Despite the dissent’s assumption to the contrary, this
circuit has expressly refrained from deciding whether to adopt
a categorical rule that the public’s interest in revealing Brady
violations cannot overcome government invocations of
Exemption 7(C). See Martin, 488 F.3d at 458 (noting that the
“issue remains an open question in this circuit”). Certainly,
we have never held that the public’s interest in revealing
Brady violations is categorically insufficient to warrant
disclosure where, as here, an individual has been sentenced to
death. And to be clear, we reach no such holding here. True,
we have distinguished between the public’s interest in
knowing whether the federal government violated Bower’s
Brady rights and the public’s interest in learning whether the
FBI is withholding information that could corroborate
Bower’s claim of innocence. See supra pp. 20–21. But our
drawing of this distinction had nothing to do with the question
 33
of whether a categorical rule bars FOIA requesters from
seeking Brady material implicating third-party privacy
interests. Instead, we discussed the difference between Roth’s
Brady and non-Brady related public-interest theories to
explain why the Fifth Circuit’s habeas decision, which fatally
undermined Roth’s Brady-related theory, did not also doom
his non-Brady theory. See supra p. 30.

Perhaps recognizing the weakness of its syllogism, the
dissent also contends that the Supreme Court’s decision in
Reporters Committee supports a categorical rule that the
public’s interest in learning whether the government is
withholding information that could corroborate a death-row
inmate’s claim of innocence cannot overcome third-party
privacy interests protected by Exemption 7(C). But Reporters
Committee is readily distinguishable from this case. There, the
FOIA requesters sought a private citizen’s criminal history
record, the disclosure of which the Court concluded would do
“little or nothing” to further FOIA’s purpose of informing the
public about “what the[] government is up to.” 489 U.S. at
773–75 (internal quotation marks omitted); see also id. at 780
(“[W]e hold as a categorical matter that a third party’s request
for law enforcement records or information about a private
citizen can reasonably be expected to invade that citizen’s
privacy, and that when the request seeks no ‘official
information’ about a Government agency, but merely records
that the Government happens to be storing, the invasion of
privacy is ‘unwarranted.’ ” (emphasis added)). Here, by
contrast, requiring the FBI to disclose whether it possesses
any records linking Gordon, Langford, or Ford to its
investigation of the quadruple murder would “shed . . . light
on the conduct of a[] Government agency.” Id. at 773. In
particular, it would further the public’s interest in revealing
whether the FBI is withholding information that could
corroborate the claim of innocence of a man whom it helped
 34
put on death row. Cf. id. (noting that in Reporters Committee,
the requesters did “not intend to discover anything about the
conduct of the agency that ha[d] possession of the requested
records”).

“[B]orrow[ing] the words of Reporters Committee,” the
dissent nonetheless believes that the balance between public
and private interests “characteristically will tip . . . in favor of
non-disclosure when a requester seeks private information
about third parties contained in files related to a criminal
prosecution.” Dissenting Op. at 5. Why? Because, the dissent
answers, “the public interest in accurately assessing criminal
liability or exposing prosecutorial or investigative misconduct
is invariably lessened in the FOIA context by the existence of
traditional criminal and civil litigation processes where that
public interest is directly addressed.” Id. The dissent cites no
authority in support of this proposition, which is hardly
surprising. It simply makes no sense to say that the public’s
interest in a particular piece of information is reduced merely
because multiple mechanisms might exist for obtaining that
information. The dissent makes much of the fact that the type
of information Roth seeks may be available through criminal
and civil discovery. See id. at 3, 8. But we have made clear
that the potential availability of criminal and civil discovery
in no way bars an individual from obtaining information
through FOIA where no exemption otherwise applies. See
Morgan v. U.S. Dep’t of Justice, 923 F.2d 195, 198 (D.C. Cir.
1991). “Indeed, there are situations in which FOIA will
permit access to information that would not be available
through discovery.” Id. (internal quotation marks omitted).
Furthermore, the “criminal and civil litigation processes”
discussed by the dissent would be unavailable to a FOIA
requester who, unlike Roth, has no relationship with Bower.
Dissenting Op. at 5. The dissent’s approach thus appears
inconsistent with the fundamental FOIA principle that “the
 35
identity of the requesting party has no bearing on the merits of
his or her FOIA request.” Reporters Comm., 489 U.S. at 771.
For all these reasons, although we of course agree with the
dissent that Reporters Committee makes clear that categorical
rules “may be appropriate” in FOIA cases, we nonetheless
believe that the dissent has failed to justify its proposed
categorical approach because it has provided no persuasive
explanation as to why this particular “case fits into a genus in
which the balance [between public and private interests]
characteristically tips in one direction.” Id. at 776.

Finally, and in our minds sealing the point, the dissent’s
categorical approach risks producing absurd consequences
that we highly doubt Congress intended. For example, under
the dissent’s rationale, it appears that we would have to
uphold the FBI’s withholding of information under
Exemption 7(C) even if we knew for certain from the FBI’s in
camera submission that the agency is deliberately
withholding records that conclusively show that the
Oklahoma drug dealers were the true killers. We decline to
adopt a rule so at odds with “FOIA’s prodisclosure purpose.”
Favish, 541 U.S. at 174. Instead, we have engaged in the
balancing contemplated by Exemption 7(C), concluding that
in the circumstances of this case, where the FOIA requester
has surmounted the fairly substantial hurdle of showing that a
reasonable person could believe that the FBI might be
withholding information that could corroborate a death-row
inmate’s claim of innocence, the balance militates in favor of
fuller disclosure. See id. at 171 (noting that Exemption 7(C)
requires courts “to balance the [third party’s] privacy interest
against the public interest in disclosure”).

III.
This brings us finally to Roth’s challenge to the FBI’s
withholding of information under Exemption 7(D). This issue
 36
relates only to information redacted from the documents we
have reviewed in camera. It has no implications for the FBI’s
Glomar response, which the agency sought to justify only
under Exemption 7(C).

Where, as here, the records at issue were “compiled by
criminal law enforcement authorit[ies] in the course of a
criminal investigation,” they are covered by Exemption 7(D)
if producing the records “could reasonably be expected to
disclose the identity of a confidential source” or “information
furnished” by such a source. 5 U.S.C. § 552(b)(7)(D). The
agency invoking Exemption 7(D) bears the burden of proving
that it applies, and with respect to the FBI, it is not enough for
the agency to claim that all sources providing information in
the course of a criminal investigation do so on a confidential
basis. See U.S. Dep’t of Justice v. Landano, 508 U.S. 165,
171, 181 (1993). Instead, the FBI must “point to more
narrowly defined circumstances that . . . support the
inference” of confidentiality. Id. at 179. When no express
assurance of confidentiality exists, courts consider a number
of factors to determine whether the source nonetheless “spoke
with an understanding that the communication would remain
confidential.” Id. at 172. These factors include “the character
of the crime at issue,” “the source’s relation to the crime,”
whether the source received payment, and whether the source
has an “ongoing relationship” with the law enforcement
agency and typically communicates with the agency “only at
locations and under conditions which assure the contact will
not be noticed.” Id. at 179 (internal quotation marks omitted).
Even when the FBI contends that a source received an express
assurance of confidentiality, it must, in order to “permit
meaningful judicial review,” present sufficient evidence that
such an assurance was in fact given. Campbell v. U.S. Dep’t
of Justice, 164 F.3d 20, 34 (D.C. Cir. 1998).
 37
Unlike Exemptions 6 and 7(C), Exemption 7(D) requires
no balancing of public and private interests. See Parker v.
Dep’t of Justice, 934 F.2d 375, 380 (D.C. Cir. 1991). If the
FBI’s production of criminal investigative records “could
reasonably be expected to disclose the identity of a
confidential source” or “information furnished by” such a
source, that ends the matter, and the FBI is entitled to
withhold the records under Exemption 7(D). 5 U.S.C. §
552(b)(7)(D).

Roth complains that the FBI’s Vaughn index and
supplemental Vaughn index contain “only generic statements
regarding confidentiality,” thus failing to satisfy the FBI’s
burden of proving that the withheld information came from or
could identify a confidential source. Appellant’s Opening Br.
44. Under our case law, agencies invoking a FOIA exemption
must provide a specific, detailed explanation of why the
exemption applies to the withheld materials. See Vaughn, 484
F.2d at 826–28. Reviewing documents in camera is no
“substitute for the government’s obligation to provide detailed
public indexes and justifications whenever possible.” Lykins
v. U.S. Dep’t of Justice, 725 F.2d 1455, 1463 (D.C. Cir.
1984). Requiring agencies to provide public explanations for
their redactions allows for adversarial testing of the agencies’
claims, which helps focus the court’s attention on the most
important issues in the litigation and may reveal not otherwise
apparent flaws in the agencies’ reasoning. See id.; see also
Vaughn, 484 F.2d at 828. That said, we have recognized “that
there are occasions when extensive public justification would
threaten to reveal the very information for which a FOIA
exemption is claimed.” Lykins, 725 F.2d at 1463. Although in
such a case an agency is still required to provide as much
public explanation as it can without “giving away the
information it is trying to withhold,” it may supplement its
 38
explanation by making the documents available for in camera
review. Id. at 1463–64.

Here, the FBI has generally struck an appropriate
balance, publicly explaining to the extent it can why it has
concluded that certain sources provided information under an
express or implied assurance of confidentiality and then
relying on in camera judicial review to confirm its
conclusions. The FBI invoked Exemption 7(D) with respect to
four categories of sources: local law enforcement agencies;
informants who have been assigned confidential source
symbol numbers; third parties without source symbol
numbers who nonetheless provided information under an
express assurance of confidentiality; and third parties who
provided information under an implied assurance of
confidentiality. See Roth, 656 F. Supp. 2d at 165. We have no
need to assess the sufficiency of the FBI’s explanation for its
conclusion that local law enforcement agencies provided
information with an expectation of confidentiality because the
limited amount of information that the FBI withheld based on
this rationale also implicates personal privacy interests and
thus falls within the scope of Exemption 7(C). With respect to
source-symbol-number informants, the FBI explains in its
Vaughn index that it “assigns permanent source symbol
numbers . . . to confidential informants who report
information to the FBI on a regular basis pursuant to an
‘express’ assurance of confidentiality.” First Hardy Decl. ¶
83. Given that Roth fails to directly challenge this statement
on appeal, we conclude that the FBI has borne its burden of
proving that it provided an express assurance of
confidentiality to the source-symbol-number informants
mentioned in the in camera documents. See Mays, 234 F.3d at
1328–29 (upholding the FBI’s withholding of information
furnished by a “coded informant” based on an affidavit
“describ[ing] the DEA’s standard practice of identifying
 39
confidential informants” with such codes (internal quotation
marks omitted)).

The remaining Exemption 7(D) redactions relate to
informants to whom the FBI assigned no source symbol
numbers. Having reviewed the documents and the Vaughn
indexes, we think it obvious that most of these individuals
provided information under an express or implied assurance
of confidentiality. The documents the parties have labeled
“Roth/Bower 98–99, 111, and 477” convey information
provided by two sources who “specifically requested [that]
their identities not be disclosed because they feared reprisal.”
First Hardy Decl. ¶ 87. Indeed, the documents themselves
contain positive indications that the FBI gave the sources
express assurances of confidentiality. Specifically, the
documents state that one source “desired to remain
anonymous,” and the name of the second source is followed
by the words “protect identity” in parentheses. Similarly,
Roth/Bower 206 indicates that the source discussed in that
document “confidentially advised” the FBI of certain
information, thus indicating that the source had an expectation
of confidentiality. With respect to Roth/Bower 129, the FBI’s
supplemental Vaughn index explains that the source discussed
in the document “provided information to the FBI for a
number of years as a confidential informant with an express
promise of confidentiality.” Second Hardy Decl. ¶ 20. Finally,
the Vaughn index states that the source discussed in
Roth/Bower 254 and 256 “provided specific detailed
information that is singular in nature concerning the criminal
activities involving [Bower], his associates, and/or other
subjects of [the FBI’s] investigation.” First Hardy Decl. ¶ 81.
Although this statement is quite conclusory, the FBI might
well have had difficulty revealing much more information
without running the risk of divulging the source’s identity.
Having reviewed Roth/Bower 254 and 256 in camera, we
 40
conclude that given the brutal nature of the quadruple
homicide and the source’s relationship with at least some of
the victims, the source likely provided information to the FBI
“with an understanding that the communication would remain
confidential.” Landano, 508 U.S. at 172.

But our in camera review discloses two instances in
which the FBI’s stated explanation for redacting information
under Exemption 7(D) fails to correspond to the information
actually contained in the documents. Although the FBI claims
that the last paragraph of Roth/Bower 108 contains
information provided by an informant who had been assigned
a source symbol number, no such informant is mentioned in
that paragraph. Instead, the paragraph describes information
obtained by a local law enforcement agent in an interview
with a named individual. The other problematic redactions
appear in the carryover paragraph of Roth/Bower 112–13.
Although the FBI has properly redacted information from this
paragraph’s second sentence that relates to a source-symbol-
number informant, it has failed to provide any support for its
contention that each of the other sources discussed in the
carryover paragraph received express assurances of
confidentiality. See First Hardy Decl. ¶ 87–88; Second Hardy
Decl. ¶ 18.

Accordingly, the FBI has failed to bear its burden of
proving that the information redacted from the last paragraph
of Roth/Bower 108 and the carryover paragraph of
Roth/Bower 112–13 (with the exception of the second
sentence) falls within the scope of Exemption 7(D). That said,
the FBI has properly invoked Exemptions 6 and 7(C) to
withhold information implicating personal privacy interests.
We leave the task of separating the wheat from the chaff to
the district court in the first instance. Specifically, the court
should first determine which portions of the two paragraphs
 41
fall within Exemptions 6 and 7(C) and then order the FBI to
produce all segregable, non-exempt information. See 5 U.S.C.
§ 552(b) (“Any reasonably segregable portion of a record
shall be provided to any person requesting such record after
deletion of the portions which are exempt under this
subsection.”).

IV.
For the foregoing reasons, we affirm in part, reverse in
part, and remand for further proceedings consistent with this
opinion.

So ordered.
 KAVANAUGH, Circuit Judge, concurring in part and
dissenting in part 1:

In 1984, Lester Bower was convicted by a Texas state-
court jury of murdering four men. Bower was sentenced to
death. His conviction and death sentence have been affirmed
on appeal, in state habeas proceedings, and in federal habeas
proceedings.

Bower maintains that he is innocent. He cites two
witnesses who came forward and suggested that four
Oklahoma drug dealers were responsible for these murders.

Pursuant to Texas law, Bower is pursuing a post-
conviction DNA proceeding in Texas state court in an attempt
to show his innocence. His execution remains on hold as a
matter of state law while that process continues.

This is a federal Freedom of Information Act case, not a
criminal, habeas, or clemency proceeding. Bower’s attorney,
Anthony Roth, submitted FOIA requests and asked the FBI to
release documents related to the underlying criminal
investigation of these killings, as well as records relating to
the four men that Bower claims committed the murders.

Because the original criminal investigation into these
murders was conducted by federal as well as state
investigators, the FBI possessed a number of responsive
documents. The FBI turned over many of those documents to
Roth in response to his FOIA request. But the FBI declined
to produce documents (or portions thereof) that contained
private information about third parties, including about the

1
I join Part III of the majority opinion, which addresses
Exemption 7(D). I dissent from Part II, which addresses Exemption
7(C). This separate opinion focuses solely on the Exemption 7(C)
issue.
 2

three still-living Oklahoma drug dealers. In declining to
produce such information, the FBI cited FOIA Exemption
7(C). That exemption authorizes the Government to withhold
law enforcement files the disclosure of which “could
reasonably be expected to constitute an unwarranted invasion
of personal privacy.” 5 U.S.C. § 552(b)(7)(C).

Interpreting Exemption 7(C), the Supreme Court and this
Court have ruled that FOIA ordinarily is not a proper tool for
the public to obtain information from law enforcement files
relating to a criminal prosecution when disclosing the
information would infringe the privacy interests of third
parties. See Dep’t of Justice v. Reporters Committee for
Freedom of the Press, 489 U.S. 749, 761-71, 780 (1989); see
also Nat’l Archives & Records Admin. v. Favish, 541 U.S.
157, 173-75 (2004); Martin v. Dep’t of Justice, 488 F.3d 446,
457 (D.C. Cir. 2007); Boyd v. Criminal Division of the Dep’t
of Justice, 475 F.3d 381, 387-88 (D.C. Cir. 2007); Oguaju v.
United States, 378 F.3d 1115, 1116-17 (D.C. Cir. 2004);
Schrecker v. Dep’t of Justice, 349 F.3d 657, 666 (D.C. Cir.
2003); Spirko v. U.S. Postal Serv., 147 F.3d 992, 998-99
(D.C. Cir. 1998); Computer Professionals for Social
Responsibility v. U.S. Secret Serv., 72 F.3d 897, 903-05 (D.C.
Cir. 1996); Nation Magazine v. U.S. Customs Service, 71 F.3d
885, 896 (D.C. Cir. 1995); Davis v. Dep’t of Justice, 968 F.2d
1276, 1281-82 (D.C. Cir. 1992); SafeCard Servs., Inc. v. SEC,
926 F.2d 1197, 1205-06 (D.C. Cir. 1991); Fitzgibbon v. CIA,
911 F.2d 755, 767-68 (D.C. Cir. 1990); King v. Dep’t of
Justice, 830 F.2d 210, 233-35 (D.C. Cir. 1987); Fund for
Constitutional Gov’t v. Nat’l Archives & Records Serv., 656
F.2d 856, 861-66 (D.C. Cir. 1981); Baez v. Dep’t of Justice,
647 F.2d 1328, 1337-39 (D.C. Cir. 1980); cf. Morgan v. Dep’t
of Justice, 923 F.2d 195, 198 (D.C. Cir. 1991); North v.
Walsh, 881 F.2d 1088, 1094 (D.C. Cir. 1989).

As this Court has said, “privacy interests are particularly
difficult to overcome when law enforcement information
 3

regarding third parties is implicated.” Martin, 488 F.3d at
457. Moreover, “the Supreme Court has made clear that
requests for such third party information are strongly
disfavored.” Id. In the context of an Exemption 7(C)
challenge, the Supreme Court has stated that “disclosure of
records regarding private citizens, identifiable by name, is not
what the framers of the FOIA had in mind.” Reporters
Committee, 489 U.S. at 765. As the courts have explained,
the public interest in ensuring that innocent people are not
wrongly convicted or subjected to prosecutorial or
investigative misconduct is properly vindicated in the
ordinary criminal and civil litigation processes – where
personal privacy is not as weighty a consideration as it is
under FOIA. See FED. R. CRIM. P. 16; Brady v. Maryland,
373 U.S. 83, 86 (1963); see also FED. R. CIV. P. 26; Bivens v.
Six Unknown Named Agents of Federal Bureau of Narcotics,
403 U.S. 388 (1971); 42 U.S.C. § 1983.

Roth argues that the requested documents would show
that the Federal Government withheld exculpatory
information and violated its Brady obligations with respect to
Bower’s 1984 Texas state-court trial. But the claimed Brady
violation has been addressed in Bower’s criminal and habeas
proceedings and, as our precedents have consistently
indicated, does not suffice to override the privacy interests of
third parties named in such law enforcement files. See, e.g.,
Martin, 488 F.3d at 457; Boyd, 475 F.3d at 387-88; Oguaju,
378 F.3d at 1117.

Roth also suggests – albeit only in passing – that this case
is not controlled by the settled FOIA precedents because those
cases are about proving the defendant’s innocence at trial.
Here, according to Roth, the requested documents, in
conjunction with the witnesses who emerged after trial, could
demonstrate Bower’s innocence during the ongoing post-
conviction proceedings. The majority opinion has accepted
Roth’s argument and distinguished (i) the public interest in
 4

showing a criminal defendant’s innocence at trial from (ii) the
public interest in showing a criminal defendant’s innocence
during a post-conviction proceeding. In my view, that
distinction makes little sense under Exemption 7(C) and finds
no support in the case law. For purposes of FOIA, Roth’s
post-conviction theory does not differ in any meaningful way
from the Brady-based theory that our precedents have
consistently rejected. After all, if FOIA does not require
disclosure of private information that could exonerate a man
at trial, how can FOIA require disclosure of private
information that could exonerate a man in a post-conviction
habeas or clemency proceeding? The majority opinion
cannot persuasively answer that question.

The FOIA precedents set forth a clear juridical principle
– namely, that FOIA ordinarily cannot be used to obtain
private information from law enforcement files relating to a
criminal prosecution. Consistent with the statutory text –
which refers to disclosures that “could reasonably be expected
to constitute an unwarranted invasion of personal privacy,” 5
U.S.C. § 552(b)(7)(C) (emphasis added) – the Supreme Court
has specifically promoted the use of categorical rules in FOIA
Exemption 7(C) cases. See Dep’t of Justice v. Landano, 508
U.S. 165, 177 (1993) (Reporters Committee’s “approval of a
categorical approach was based in part on the phrase ‘could
reasonably be expected to,’ which Congress adopted in 1986
to ease the Government’s burden of invoking Exemption 7
and to replace a focus on the effect of a particular disclosure
with a standard of reasonableness . . . based on an objective
test’”) (internal quotation marks and citations omitted;
alteration in original). The Court has stated that “categorical
decisions may be appropriate and individual circumstances
disregarded when a case fits into a genus in which the balance
characteristically tips in one direction.” Reporters
Committee, 489 U.S. at 776; cf. NLRB v. Robbins Tire &
Rubber Co., 437 U.S. 214, 236 (1978) (similarly approving
generic categorical approach under Exemption 7(A)). In such
 5

instances, “a disparity on the scales of justice holds for a class
of cases without regard to individual circumstances; the
standard virtues of bright-line rules are thus present, and the
difficulties attendant to ad hoc adjudication may be avoided.”
Reporters Committee, 489 U.S. at 780.

To borrow the words of Reporters Committee, the
balance tips – and characteristically will tip – in favor of non-
disclosure when a requester seeks private information about
third parties contained in files related to a criminal
prosecution. The privacy interests of third parties who are
named in law enforcement documents are invariably strong.
Indeed, the majority opinion acknowledges that those interests
are “significant.” Maj. Op. at 16. And the public interest in
accurately assessing criminal liability or exposing
prosecutorial or investigative misconduct is invariably
lessened in the FOIA context by the existence of traditional
criminal and civil litigation processes where that public
interest is directly addressed. Therefore, the Reporters
Committee categorical approach is appropriate here.

The majority opinion argues that the case law has not
specifically articulated such a categorical principle. It is true
that the precedents have not set forth expansive reasoning in
rejecting arguments of the kind advanced by Roth here, no
doubt because the argument is ultimately insufficient as a
matter of FOIA law. Here, because the majority opinion is
charting a new course, I have attempted to explain the
essential reasoning that undergirds those many decisions. The
majority opinion counters that the FOIA public interest is not
lessened merely because there are other avenues for obtaining
information from the government relating to a criminal
prosecution. But what reason other than the existence of
those alternative forums could support our long line of cases
rejecting FOIA requests for private information in law
enforcement files related to a criminal prosecution? After all,
considered in isolation from the other criminal and civil
 6

processes, the public interest in ensuring that an innocent
person is not wrongly imprisoned is extraordinarily high, yet
it is routinely deemed insufficient in Exemption 7(C) cases.
The reason is evident: Other criminal and civil processes
exist to vindicate that public interest. The majority opinion
purports to accept the holdings of our prior cases rejecting
claims like Roth’s, but it rejects their essential rationale and
offers no other rationale to explain those decisions.

For present purposes, the key point is that there is a long
line of precedent rejecting the kind of argument advanced
here by Roth. Those cases have established in common-law-
like fashion a principle that FOIA ordinarily does not
authorize disclosure when a requester seeks private
information about third parties contained in files related to a
criminal prosecution. Recognizing that principle is consistent
with – indeed encouraged by – Reporters Committee.

Reaching farther afield, the majority opinion also cites a
non-7(C) case saying that the availability of discovery does
not defeat a FOIA claim “where no exemption otherwise
applies.” Maj. Op. at 34 (citing Morgan v. Dep’t of Justice,
923 F.2d 195, 198 (D.C. Cir. 1991)). Of course that’s true.
But that’s not the issue here. The question here concerns how
to weigh public and privacy interests in 7(C) cases. In the
Exemption 7(C) context, the cases establish that the asserted
public interest in determining a defendant’s guilt is lessened
because that interest is vindicated in the ordinary criminal and
civil processes.

In the end, the majority opinion distinguishes away a
slew of applicable precedents by decreeing a new death
penalty exception that overrides Exemption 7(C)’s protection
of personal privacy. The result in this FOIA case, by the
majority opinion’s own admission, would be different if
Bower were serving a sentence of life imprisonment. Of
course, the information sought here goes to Bower’s guilt, not
 7

to his sentence. The majority opinion’s reasoning, which
rests on Bower’s death sentence, is thus an odd fit with the
nature of the information sought. Beyond that, the major
problem with the majority opinion’s approach is that there is
no statutory or precedential support for creating a new death
penalty exception to the important privacy protection in
Exemption 7(C). Creating any such exception is a decision
properly left to Congress and the Executive Branch. In
justifying its new death penalty exception, the majority
opinion lobs a rhetorical volley, saying that the opposing
position would allow the government to deliberately and
knowingly kill an innocent man. That is wildly inaccurate.
The traditional processes such as habeas, clemency, and the
like are constitutionally and statutorily designed to prevent
such a travesty of justice. As the Supreme Court said, “the
framers of the FOIA” did not have in mind “disclosure of
records regarding private citizens, identifiable by name.”
Reporters Committee, 489 U.S. at 765. Moreover, if federal
government officials are violating their legal and ethical
disclosure responsibilities in the criminal justice and
clemency forums, it is unclear why the majority opinion
thinks those same officials would suddenly comply with
FOIA orders.

Here as elsewhere, general or categorical principles can
be overcome in extraordinary cases. Cf. Herrera v. Collins,
506 U.S. 390, 425-26 (1993) (O’Connor, J., concurring). In
this case, however, Roth seeks to undermine Bower’s
conviction and show alleged prosecutorial misconduct –
interests that have been routinely asserted and rejected in
FOIA cases as insufficient to override Exemption 7(C)’s
protection for personal privacy. See, e.g., Martin, 488 F.3d at
457; Boyd, 475 F.3d at 387-88; Oguaju, 378 F.3d at 1116-17;
Spirko, 147 F.3d at 998-99; Computer Professionals for
Social Responsibility, 72 F.3d at 903-05. Claims of innocence
and prosecutorial or investigative misconduct of one form or
another – failing to disclose relevant evidence, pressuring
 8

witnesses, encouraging or allowing false testimony, for
example – are standard arguments by the defense in federal
criminal prosecutions. The criminal process is designed to
expose and resolve such charges and counter-charges. And
civil Bivens and § 1983 actions are available as well for
citizens to seek redress for prosecutorial or investigative
misconduct. FOIA, by contrast, was not designed to require
public disclosure of private information in order to serve
those purposes.

***

In other forums, Bower has rightly been able to obtain
discovery from the Government and challenge his guilt. Our
legal system accommodates pre-conviction claims of
innocence through the criminal trial itself. And our legal
system accommodates post-conviction claims of innocence –
including those based on newly discovered evidence –
through new trial motions, appeals, habeas proceedings, the
executive clemency process, and in recent times DNA
procedures such as the process that Texas has employed in
Bower’s case. See generally Herrera, 506 U.S. at 411-16. If
there are questions about Bower’s guilt, those are the proper
forums for resolving those questions. I believe it essential for
judicial and executive officials to ensure – particularly in
death penalty cases – that claims of innocence based on newly
discovered evidence are properly explored. But given FOIA’s
critical protection for personal privacy and the many other
processes available for vindicating a defendant’s innocence
claim, the Supreme Court and this Court have held that FOIA
ordinarily is not an appropriate tool to obtain information
from law enforcement files relating to a criminal prosecution
when disclosure would infringe the privacy interests of third
parties. That settled principle controls this case.

I respectfully dissent from the majority opinion’s
decision regarding Exemption 7(C).