CHURCH OF SCIENTOLOGY INTERNATIONAL, Plaintiff, Appellant,
v.
UNITED STATES DEPARTMENT OF JUSTICE, Defendant, Appellee.
No. 94-1112.
United States Court of Appeals,
First Circuit.
Heard May 4, 1994.
Decided July 26, 1994.
Church brought Freedom of Information Act (FOIA) action to compel disclosure
of records in United States Attorney's Office that concerned the church and the
investigation of an alleged check fraud scheme in which church was the victim
and an extortion plot arising out of that fraud. The United States District
Court for the District of Massachusetts, A. David Mazzone, Senior District
Judge, granted summary judgment for the government based on its Vaughn
index and supporting documents. Church appealed. The Court of Appeals,
Coffin, Senior Circuit Judge, held that: (1) the Justice Department's search
of its records was adequate; (2) the Vaughn index and declarations
submitted with it did not sufficiently describe the withheld documents or
sufficiently justify withholding, rather than redaction, of documents; (3) the
mere fact that a grand jury has been exposed to requested information does not
automatically mean that the grand jury secrecy rule specifically exempts
documents from disclosure; (4) the government must supply sufficient
information about the subject litigation or investigation when it seeks to
exempt agency memoranda and letters or information compiled for law enforcement
purposes; and (5) the government must explain why redaction would be
insufficient to satisfy the purposes of the personal privacy exemption.
Judgment affirmed in part and vacated and remanded in part.
[1] RECORDS
Policy underlying Freedom of Information Act (FOIA) is one of broad disclosure,
and government must supply any information requested unless government
determines that specific exemption, narrowly construed, applies. 5
U.S.C.A. s 552.
[2] RECORDS
Government bears burden of demonstrating applicability of claimed Freedom of
Information Act (FOIA) exemption and district court must determine de novo
whether agency has met its burden. 5 U.S.C.A. ss 552, 552(a)(3), (b).
[2] RECORDS
Government bears burden of demonstrating applicability of claimed Freedom of
Information Act (FOIA) exemption and district court must determine de novo
whether agency has met its burden. 5 U.S.C.A. ss 552, 552(a)(3), (b).
[3] RECORDS
Freedom of Information Act (FOIA) permits partial disclosure of documents that
contain some exempted information; FOIA mandates disclosure to requester of
all reasonably segregable, nonexempt portions of any agency records, after
deletion of exempt material. 5 U.S.C.A. s 552(b).
[4] RECORDS
Freedom of Information Act (FOIA) allows agency to withhold nonexempt material
in records containing both exempt and nonexempt material only if nonexempt
information is so interspersed with exempt material that separation by agency,
and policing by courts, would impose undue burden. 5 U.S.C.A. s 552(b).
[5] RECORDS
Vaughn index, which includes general description of each document sought by
requester and which explains agency's justification for nondisclosure of each
individual document or portion thereof, is necessary to protect adversary
process in Freedom of Information Act (FOIA) action; generally only
nondisclosing party would have access to all the facts. 5 U.S.C.A. s
552(b).
[6] RECORDS
Freedom of Information Act (FOIA) allows agency to exempt some records on
categorical basis, rather than on document-by-document basis, if circumstances
characteristically support inference of confidentiality. 5 U.S.C.A. s
552(b).
[7] RECORDS
Goals of Freedom of Information Act (FOIA) are worthy, and courts are bound to
honor both purpose and letter of FOIA, even in "hard case" in which there is no
perceptible public purpose on part of requester. 5 U.S.C.A. s 552.
[7] RECORDS
Goals of Freedom of Information Act (FOIA) are worthy, and courts are bound to
honor both purpose and letter of FOIA, even in "hard case" in which there is no
perceptible public purpose on part of requester. 5 U.S.C.A. s 552.
[8] RECORDS
Justice Department conducted adequate search for records requested by church
under Freedom of Information Act (FOIA); employee who was responsible for
search used computerized record system and employee personally searched
computer files for specific documents responsive to request. 5 U.S.C.A. s
552.
[9] RECORDS
Vaughn index and declarations submitted with it did not sufficiently
describe withheld documents other than to make broad statements that documents
were withheld because they contained type of information protected by specified
Freedom of Information Act (FOIA) exemptions; declarations did not demonstrate
detailed analysis by government and did not permit meaningful foundation for
review. 5 U.S.C.A. s 552(b).
[10] RECORDS
Vaughn index and declarations submitted with it did not sufficiently justify
Justice Department's withholding of documents requested by church under Freedom
of Information Act (FOIA); Department merely identified claimed FOIA exemption
but did not indicate why its concerns could not be addressed by redacting
document, rather than withholding it completely, and Department did not produce
even redacted documents for district court to review. 5 U.S.C.A. s 552(b).
[11] RECORDS
Government's lack of bad faith in supplying inadequate Vaughn index and
declarations did not relieve Justice Department of its obligation in the first
instance to provide enough information to enable adversary process to operate
in Freedom of Information Act (FOIA) action. 5 U.S.C.A. s 552(b).
[12] RECORDS
Church's failure to request in camera review of requested documents did not
relieve Justice Department of its obligation in the first instance to provide
enough information to enable adversary process to operate in Freedom of
Information Act (FOIA) action. 5 U.S.C.A. s 552(b).
[13] RECORDS
Nature of requested documents and particular Freedom of Information Act (FOIA)
exemption asserted in response may be relevant in assessing adequacy of
Vaughn index and declarations submitted with it. 5 U.S.C.A. s 552(b).
[14] RECORDS
Categorical approach to nondisclosure of documents requested under Freedom of
Information Act (FOIA) is permissible only when government can establish that,
in every case, particular type of information may be withheld regardless of
specific surrounding circumstances. 5 U.S.C.A. s 552(b).
[15] RECORDS
Although Vaughn index with less detail may be approved if records requested
under Freedom of Information Act (FOIA) are voluminous, government must still
provide meaningful detail in support of its withholdings. 5 U.S.C.A. s
552(b).
[16] RECORDS
Government need not provide so much detail in Vaughn index and declarations
submitted with it that government risks compromising very interests it seeks to
protect by asserting Freedom of Information Act (FOIA) exemption. 5
U.S.C.A. s 552(b).
[17] RECORDS
Mere fact that grand jury has been exposed to information requested under
Freedom of Information Act (FOIA) does not automatically mean that grand jury
secrecy rule specifically exempts documents from disclosure; government must
explain basis for its conclusion that grand jury secrecy rule and, thus, FOIA
exemption for material specifically exempted by statute, would permit
withholding of documents not identified as grand jury exhibits, but simply
included in grand jury files. 5 U.S.C.A. s 552(b)(3); Fed.Rules
Cr.Proc.Rule 6(e), 18 U.S.C.A.
[18] RECORDS
To use attorney work-product privilege to assert that Freedom of Information
Act (FOIA) exemption permits withholding of interagency or intraagency
memoranda or letters, government must prove that documents were prepared under
direction of attorney in contemplation of litigation. 5 U.S.C.A. s
552(b)(5).
[19] RECORDS
To use attorney work-product privilege to assert that Freedom of Information
Act (FOIA) exemption permits withholding of interagency or intraagency
memoranda or letters, government must identify, either by name or through
factual description, litigation for which documents were created and must
explain why work-product privilege applies to all parts of document. 5
U.S.C.A. s 552(b)(5).
[20] RECORDS
Information supplied when government claimed that Freedom of Information Act's
(FOIA) personal privacy exemption shielded entire documents sought by church
was insufficient to explain why privacy interests at stake could not be
protected by redacting identifying information. 5 U.S.C.A. s 552(b)(7)(C).
[21] RECORDS
Invocation of Freedom of Information Act's (FOIA) exemption for information
compiled for law enforcement purposes requires that government specify whether
source of information was expressly or impliedly granted confidentiality or to
specify surrounding circumstances to support assertion of implied
confidentiality. 5 U.S.C.A. s 552(b)(7)(D).
[22] RECORDS
Government does not sufficiently invoke Freedom of Information Act's (FOIA)
exemption for information compiled for law enforcement purposes to shield
entire documents by stating generally that confidentiality was implied from
relationship between author of document and subject investigation, but
government need not supply so much information that any confidentiality
surrounding source of information is destroyed. 5 U.S.C.A. s 552(b)(7)(D).
[23] RECORDS
Government's obligation when it claims information as exempt from disclosure
under Freedom of Information Act (FOIA) is to provide enough information about
each document to permit effective advocacy by requester. 5 U.S.C.A. s
552(b).
*226 Kendrick L. Moxon, Los Angeles, CA, for appellant.
George B. Henderson, II, Asst. U.S. Atty., with whom Donald K. Stern, U.S.
Atty., Boston, MA, was on brief, for appellee.
Before SELYA, Circuit Judge, COFFIN and BOWNES, Senior Circuit Judges.
COFFIN, Senior Circuit Judge.
The plaintiff Church of Scientology International brought this action
under the Freedom of Information Act (FOIA), 5 U.S.C. s 552, to compel
disclosure of documents held by the Department of Justice pertaining to the
Church and related entities. The Department released about 1,000 pages in full
or in part, but withheld more than 700 additional pages based on various FOIA
exemptions. The Church objected to both the breadth of the Department's
internal search for documents and the number of exemptions asserted. The
district court granted summary judgment for the government. On appeal, the
Church argues that the government has not satisfied its burden of showing that
no further documents are subject to release, and that the court consequently
erred in granting judgment as a matter of law. We affirm part of the court's
decision, but vacate the remainder and remand for further proceedings.
I. Background
In September 1988, the Department's Executive Office for United States
Attorneys (EOUSA) received a FOIA request from the Church seeking all records
located in the U.S. Attorney's office in Boston that concerned *227 the
Church, two related Church entities, or Scientology in general. The Church
particularly was interested in documents about a check fraud scheme involving
the Church as a victim, and a later extortion plot against the Church arising
from the fraud. [FN1] In April 1990, the EOUSA released 542 pages in full or
in part, and informed the Church that additional responsive material had been
withheld pursuant to specified FOIA exemptions. The government also reported
that other documents had been referred to the agencies from which they had
originated for consideration of release.
FN1. The Church asserts two primary purposes for its document request.
First, it believes that false reports about the Church have precipitated
FBI harassment of Church members and investigators, and Church officials
therefore want to acquire any such reports so that the information may be
corrected. Second, the Church wants to learn why the government did not
prosecute more than one individual in the check fraud scheme.
The Church administratively appealed, challenging the adequacy of the search
and the validity of the exemptions. In September 1992, having received no
response, the Church filed this action. The records concerning the Church's
request were then reviewed by a special assistant U.S. attorney, Charlene
Stawicki, who concluded that the lapse of time since the original search made
it difficult to ascertain how it was performed. She therefore arranged a new
search, the nature of which is detailed fully in the district court's opinion.
It suffices to say here that the search involved the use of a comprehensive
computerized record-tracking system.
The new search led to the release of an additional 459 pages in full and 14
pages in part. Two further reviews of the documents, one following the Supreme
Court's clarification of FOIA law in United States Dep't of Justice v.
Landano, 508 U.S. 165, 113 S.Ct. 2014, 124 L.Ed.2d 84 (1993), and another based
on a new policy statement from President Clinton and Attorney General Reno,
[FN2] resulted in the release of approximately 75 more pages in full and 15 in
part.
FN2. The new policy emphasized a commitment to openness, and urged
agencies to withhold documents that technically might fall within an
exemption only when "the agency reasonably foresees that disclosure would
be harmful to an interest protected by that exemption."
This succession of disclosures left about 744 pages withheld in full and
approximately two dozen withheld in part. The bases for these withholdings
were set forth in declarations by two Department attorneys, [FN3] and in a
Vaughn index. [FN4] The index, a now standard tool conceived by the
District of Columbia circuit to facilitate resolution of FOIA disputes,
provides a brief description of each of the 191 withheld documents and
identifies the exemptions assertedly permitting their nondisclosure.
FN3. A 12-page declaration was submitted by John F. Boseker (the "Boseker
Declaration"), an attorney advisor with the EOUSA, whose responsibilities
include the review of requests made under FOIA and the Privacy Act, 5
U.S.C. s 552a. Bonnie L. Gay, attorney in charge of the Executive Office's
FOIA/Privacy Act Unit, provided supplemental information in a six-page
declaration.
FN4. The name of the index is derived from the seminal case, Vaughn v.
Rosen, 484 F.2d 820 (D.C.Cir.1973).
In ruling on the government's motion for summary judgment, the district
court found that these materials adequately justified both the scope of the
search and the withholdings. Its decision can be broken down into four
separate conclusions: (1) the search itself was done reasonably, and the
documents produced fulfilled the government's obligation under FOIA; (2) the
Vaughn index generally was sufficiently detailed to permit the court to
review the Department's claims of exemption; (3) the index and supporting
affidavits specifically supported the exemptions claimed by the Department to
justify withholding documents; and (4) discovery was unwarranted because the
government's showing was adequate, and discovery would be unlikely to result in
a different outcome while placing a substantial burden on the Department and
the court.
The Church now claims that the district court abused its discretion in
refusing discovery and awarding summary judgment based *228 on the submitted
declarations and Vaughn index, asserting that these items were too vague and
conclusory to support the exemption claims. The Church also challenges the
reasonableness of the search conducted by the Department, claiming that the
search was too narrowly circumscribed.
Our review of the district court's determination that the government was
entitled to summary judgment based on its index and affidavits is de novo.
See Licari v. Ferruzzi, 22 F.3d 344, 346-47 (1st Cir.1994) (summary judgment
standard); Wiener v. FBI, 943 F.2d 972, 978 (9th Cir.1991) (FOIA
standard). Our discussion begins with a review of general FOIA standards and
principles.
II. The Freedom of Information Act
[1][2] The FOIA requires government agencies to "make ... promptly
available" to any person, upon request, whatever "records" the agency possesses
unless those "records" fall within any of nine listed exemptions. 5
U.S.C. s 552(a)(3), (b). [FN5] The statute's basic purpose is "to ensure an
informed citizenry, vital to the functioning of a democratic society," NLRB
v. Robbins Tire & Rubber Co., 437 U.S. 214, 242, 98 S.Ct. 2311, 2327, 57
L.Ed.2d 159 (1978), or, stated more specifically, " 'to open agency action to
the light of public scrutiny,' " Department of Justice v. Reporters
Committee, 489 U.S. 749, 772, 109 S.Ct. 1468, 1481, 103 L.Ed.2d 774
(1989) (citation omitted). The policy underlying FOIA is thus one of broad
disclosure, and the government must supply any information requested by any
individual unless it determines that a specific exemption, narrowly construed,
applies. Aronson v. IRS, 973 F.2d 962, 966 (1st Cir.1992). The government
bears the burden of demonstrating the applicability of a claimed exemption,
Maynard v. CIA, 986 F.2d 547, 557-58 (1st Cir.1993); In Re Department of
Justice, 999 F.2d 1302, 1305 (8th Cir.1993) (en banc), and the district court
must determine de novo whether the queried agency has met this burden,
Aronson, 973 F.2d at 966.
FN5. The exemptions protect, inter alia, privacy and confidentiality
interests, the secrecy of grand jury proceedings, and matters covered by
the attorney-client privilege.
[3][4] FOIA also provides for partial disclosure of documents that contain
some exempted information, mandating that "all reasonably segregable, non-
exempt portions of any agency records must, after deletion of the exempt
material, be disclosed to a requester, 5 U.S.C. s 552(b)," Wightman v.
Bureau of Alcohol, Tobacco & Firearms, 755 F.2d 979, 983 (1st Cir.1985). In
determining segregability, "courts must construe the exemptions narrowly with
the emphasis on disclosure," id.. An agency may withhold non-exempt
information only if it " 'is so interspersed with exempt material that
separation by the agency, and policing of this by the courts would impose an
inordinate burden,' " Id. (quoting Lead Industries Ass'n v. Occupational
Safety and Health Admin., 610 F.2d 70, 86 (2d Cir.1979)). See also
Krikorian v. Department of State, 984 F.2d 461, 466 (D.C.Cir.1993) (" 'non-
exempt portions of a document must be disclosed unless they are inextricably
intertwined with exempt portions' " (citation omitted)).
[5] To assure the broadest possible disclosure, courts often direct a
government agency seeking to withhold documents to supply the opposing party
and the court with a Vaughn index, which includes a general description of
each document sought by the FOIA requester and explains the agency's
justification for nondisclosure of each individual document or portion of a
document. Maynard, 986 F.2d at 556-57; Vaughn, 484 F.2d at 823-28.
Such an index is viewed as necessary to protect the adversary process in a FOIA
case, in which only the party opposing disclosure will have access to all the
facts. Wiener, 943 F.2d at 977; Vaughn, 484 F.2d at 823-28. We
previously have identified a trio of functions served by the index:
[I]t forces the government to analyze carefully any material withheld, it
enables the trial court to fulfill its duty of ruling on the applicability of
the exemption, and it enables the adversary system to operate by giving the
requester as much information as possible, on the basis of which he can present
his case to the trial court.
Maynard, 986 F.2d at 557 (quoting Keys v. United States Dept. of
Justice, 830 F.2d 337, *229 349 (D.C.Cir.1987) (quoting Lykins v. United
States Dept. of Justice, 725 F.2d 1455, 1463 (D.C.Cir.1984))). See also In
Re Department of Justice, 999 F.2d at 1305.
[6] Although FOIA's primary thrust is to promote openness, the Supreme Court
also has recognized a Congressional intent "to provide 'workable rules' of FOIA
disclosure," Landano, 508 U.S. at ----, 113 S.Ct. at 2023 (citing cases).
To that end, the Court has interpreted the statute as permitting agencies to
exempt certain records on a categorical basis, rather than requiring a
document-by-document consideration. In Reporters Committee, for example,
the Court concluded that criminal "rap sheet" information is categorically
exempt from disclosure because the release of such information invariably
constitutes an unwarranted invasion of privacy. [FN6] 489 U.S. at 780, 109
S.Ct. at 1485. The Court has reached a similar conclusion with respect to the
exemption of material furnished by sources, see Landano, 508 U.S. at ----,
113 S.Ct. at 2022, holding that "when certain circumstances characteristically
support an inference of confidentiality," the Government may justify
nondisclosure without detailing the circumstances surrounding a particular
interview. [FN7]
FN6. The Court in Reporters Committee was construing FOIA Exemption
7(C), which allows the Government to withhold law enforcement records or
information whose production "could reasonably be expected to constitute an
unwarranted invasion of personal privacy," 5 U.S.C. s 552(b)(7)(C).
FN7. Landano concerned Exemption 7(D), which permits the Government to
withhold
records or information compiled for law enforcement purposes, but only to
the extent that the production of such law enforcement records or
information ... could reasonably be expected to disclose the identity of a
confidential source, ..., and, in the case of a record or information
compiled by criminal law enforcement authority in the course of a criminal
investigation ..., information furnished by a confidential source.
s 552(b)(7)(D).
FOIA's general philosophy remains, however, one of " 'full agency
disclosure,' " Aronson, 973 F.2d at 966 (quoting Department of Air Force
v. Rose, 425 U.S. 352, 360, 96 S.Ct. 1592, 1599, 48 L.Ed.2d 11 (1976) (quoting
S.Rep. No. 813, 89th Cong., 1st Sess. 3 (1965))), and courts have the
obligation to interpret its reach "generously, in order to achieve the FOIA's
basic aim: sunlight," id.. See also Landano, 508 U.S. at ----, 113
S.Ct. at 2024.
[7] What usually remains unspoken, but is a reality often affecting
attitudes and conduct implementing FOIA, is the very considerable burden laid
on both the government and the trial court in searching files for multitudinous
documents, analyzing them, and justifying not only any exclusion relied upon
but any refusal to redact and segregate the disclosable from the residually
privileged. This burden often is exacerbated by the apparent lack of any
perceptible public purpose on the part of the requester. In such a case,
already burdened courts and agencies may deem FOIA's dedication to the
importance of "sunlight" as unrealistic. We thoroughly appreciate this kind of
tension. We are dealing with a law that complicates the task of governing.
Yet, its goals are worthy, and we are bound to honor both its letter and its
spirit. Moreover, as in any "hard case," we must constantly remind ourselves
that our decision establishes principles that must be generally applicable--
both to requests that seem merely annoying and to those that may reflect the
most vital concerns of citizens. Cf. Senate of Puerto Rico v. Department of
Justice, 823 F.2d 574, 587 (D.C.Cir.1987) ("The costs must be borne ... if the
congressional policy embodied in FOIA is to be well served.")
III. Did the Government Meet Its Burden?
A. Adequacy of the Search
When the Church submitted its request for documents in September 1988,
it triggered a responsibility on the part of the Department of Justice to do a
reasonably thorough search of its records and to turn over all responsive
materials except those for which it could prove an exemption from disclosure.
Maynard, 986 F.2d at 559. The Church has two primary complaints about what
transpired. First, it claims that the search was too narrow, and,
consequently, that more responsive *230 documents should have been found.
Second, it claims that the Department has failed to meet its burden of proving
that all of the withheld materials are exempt from disclosure. Like the
district court, the parties break this issue into three components: (1) is the
index generally too vague? (2) are the specific claims of exemption
supportable? (3) did the court abuse its discretion in denying discovery?
[8] We readily can dispose of the first issue. As we have noted, the
adequacy of an agency's search for documents under FOIA is judged by a standard
of reasonableness. Maynard, 986 F.2d at 559. "The crucial issue is not
whether relevant documents might exist, but whether the agency's search was
'reasonably calculated to discover the requested documents.' " Id.
(citation omitted). The district court properly identified and applied this
standard here, finding that the search was adequate based on the details
provided in the Stawicki affidavit.
Ms. Stawicki stated that she directed the second search for documents
conducted after the Church filed suit, that the search was conducted through a
computerized record system whose capabilities she described, that a manual
search would be impossible, and that she personally searched the computer files
for specific documents responsive to the Church's request. The court found
that this information, in the absence of any evidence of bad faith, was
sufficient. We agree, and thus affirm its conclusion. [FN8]
FN8. The Church made two specific arguments regarding the inadequacy of
the Department's search, neither of which were raised before the district
court. We therefore need not, and do not, address them here. See
Watkins v. Ponte, 987 F.2d 27, 29 (1st Cir.1993).
The Church's second complaint is more compelling. Although implicitly
contending that the government has withheld an excessive number of documents,
the Church at this juncture really is making a more limited argument. It
maintains that the affidavits and Vaughn index were too vague and conclusory
to permit it or the district court meaningfully to evaluate the Department's
exemption claims, and the Church therefore asserts that it was entitled to more
information, either through discovery or a revised index, before the summary
judgment motion properly could be decided.
B. General Inadequacies of the Index and Affidavits
We have studied carefully the affidavits and index, considering separately
each of the 191 entries, and are persuaded that, with respect to many
documents, the government has failed to support adequately its claim of
exemption. [FN9] Each entry contains four types of information: (1) the
number of pages in the document; (2) a brief description of the nature of the
document; (3) the content of the withheld portions; and (4) the statutory
exemption numbers claimed to support nondisclosure. Document No. 4, for
example, is entered in the index as follows:
FN9. Some of these documents have been released in whole or in part as a
result of the administration's openness policy. See supra note 2. The
government identifies these documents as Nos. 58, 63-66, 69, 71-73, 77-
81, 84-86 and 88-90.
[Pages] [Description] [Content/withheld portions] [Exemptions]
21 Typed AUSA Attorney work product document b(5) b(7)(D)
notes marshalling facts and sources of b(7)(C)
(undated) information created in
contemplation of litigation.
Confidentiality referenced
throughout document. References
Third Party Individuals throughout.
(WIF [withheld in full] )
[9] In our view, the descriptions for many of the documents are too
cursory to permit debate, or an informed judgment, about whether they properly
may be withheld. As with Document No. 4, multiple exemption numbers are noted
beside many entries, without any correlation between a particular exemption and
the sections of the *231 document to which it relates. Most documents,
including lengthy ones like No. 4, are withheld in their entirety, without any
reference to segregability.
The declarations submitted with the index contain only general and conclusory
assertions concerning the documents. For example, with respect to documents
claimed to be exempt under the privacy provision, Exemption 7(C), see supra
note 6, the Boseker declaration first describes the types of information to
which the exemption applies, [FN10] and then states categorically that "there
was no public interest in the release of this information nor any interest
which would counterbalance the individual's privacy in the information withheld
under this exemption." The declaration states that each document was evaluated
for segregability, and that, where a document was withheld in its entirety,
"EOUSA determined that no meaningful portions could reasonably be released
without destroying the integrity of such document as a whole."
FN10. Paragraph 15 of the declaration states:
This exemption applies to withhold identities of and personal information
about third party individuals, release of which could subject such persons
to unwanted and even unlawful efforts to gain further access to them or
personal information, harassment or harm, exposure to unwanted and/or
derogatory publicity and inferences arising from their connection to the
case, all to their detriment.
This exemption also applies to withhold identities of individuals such as
special agents, government employees, and local law enforcement personnel
who participated in the investigation and prosecution of the referenced
cases. Individual duties and assignments are not public and such publicity
as would likely arise from disclosure would seriously impede, if not
totally jeopardize law enforcement effectiveness in subsequent cases, even
subjecting such individuals to harassment or harm. These persons have
protected privacy interests in the conduct of law enforcement
investigations.
The Gay declaration supports the privacy withholdings by emphasizing that the
Church's reported policy of retribution against its perceived enemies provided
the basis for the Department's substantial concern about protecting the
personal privacy of government employees and third party contacts. Gay repeats
essentially the same general conclusion about segregability offered by
Boseker: "There are no segregable portions which have not been released which
could be released without creating a substantial risk of disclosing information
protected from disclosure."
These declarations are written too generally to supplement the index in any
meaningful way. They treat the documents within various exemption categories
as a group, without referring to specific documents, and make broad statements
essentially explaining that the documents were withheld because they contain
the type of information generally protected by that particular exemption. The
statements regarding segregability are wholly conclusory, providing no
information that would enable a requester to evaluate the agency's decisions.
Thus, none of the functions of the index identified in Maynard are served:
the declarations do not demonstrate careful analysis of each document by the
government; the court has not been assisted in its duty of ruling on the
applicability of an exemption; and the adversary system has not been visibly
strengthened. See supra p. 228.
Although "[t]here is no set formula for a Vaughn index," Hinton v.
Department of Justice, 844 F.2d 126, 129 (3d Cir.1988), to serve its purpose
the listing " 'must supply "a relatively detailed justification, specifically
identifying the reasons why a particular exemption is relevant and correlating
those claims with the particular part of a withheld document to which they
apply," ' " Krikorian, 984 F.2d at 467 (citations omitted) (emphasis in
original). It is "the function, not the form, which is important," Hinton,
844 F.2d at 129, and the question is whether the particular taxonomy employed
"afford[s] the FOIA requester a meaningful opportunity to contest, and the
district court an adequate foundation to review, the soundness of the
withholding," Wiener, 943 F.2d at 977-78.
[10] The lack of justification for withholding lengthy documents in their
entirety is the most pervasive problem with the index. Upon encountering
similarly imprecise indices, the District of Columbia Circuit recently
*232 noted, in words equally apt here, that the materials submitted
"[we]re written in terms of documents, not information, but '[t]he focus in
the FOIA is information, not documents, and an agency cannot justify
withholding an entire document simply by showing that it contains some exempt
material.' "
Krikorian, 984 F.2d at 467 (citation omitted). We think it fruitful to
examine closely several entries as a way of demonstrating the index's
deficiencies:
*Document No. 5 is a 32-page declaration, with four pages of supporting
exhibits. The contents column contains the following information:
Individual third party declaration of and concerning relationship with
Church. Not evidenced as admitted into court or on public record, so deemed
confidential statement. (WIF)
The entire document is withheld pursuant to Exemption 7(C), the personal
privacy exemption. The entry fails, however, to indicate why privacy concerns
could not be met simply by deleting identifying information. Without some
further elaboration of the document's contents, the Church is unable to dispute
the claim that no portion of the 36 pages is segregable. [FN11]
FN11. The government states in its brief with respect to this document
that "the EOUSA could properly determine that even partial disclosure might
well allow plaintiffs to identify the declarant through the nature of the
information disclosed." The government unquestionably could make such a
determination, but it needs to provide more than this unsupported
conclusion to justify withholding the whole document. Is the document full
of personal anecdotes, whose perspective would tend to reveal the
declarant, thus supporting this conclusion? Or does the document simply
give one individual's description of the way the Church generally treats
members, and thus arguably include material that could be segregated from
the identifying information?
*Document No. 6 is an 11-page affidavit from a third party containing the
following information:
Individual third party affidavit concerning Church and other matters. Not
evidenced as admitted into court or on public record, so deemed confidential.
(WIF)
The entire document is withheld pursuant to Exemption 7(C), as well as under
the Privacy Act, 5 U.S.C. s 552a(j)(2). [FN12] Again, no attention is given
to segregability. What were the "other matters" described? This entry
unquestionably fails to supply the Church with enough information " 'to permit
[it] to present its case effectively,' " Orion Research Inc. v. EPA, 615
F.2d 551, 553 (1st Cir.1980) (citation omitted), the function the index was
conceived to perform.
FN12. Section (j)(2) exempts from mandatory disclosure records maintained
by an agency that performs as its principal function any activity
pertaining to the enforcement of criminal laws. Section (k)(2) of the Act
similarly exempts certain investigatory materials compiled for law
enforcement purposes in other than criminal matters. Although the Boseker
Declaration states that all of the relevant records in this case were
exempt under one or the other of the Privacy Act provisions, only certain
of the entries include (j)(2) as a justification for nondisclosure. See,
e.g., Document Nos. 6, 11, 13, 15-19, 43, 46, 53, 55, 56, 58, 60-62, 75,
76, 95, 109, 111, 115-121, 123, 125, 127, 146, 185, 187, 190, 191.
*Document No. 20 is a 49-page deposition transcript described as follows:
Transcript of deposition of third party individual taken by private
reporting service in Commonwealth of Mass. (WIF)
The entire document is withheld pursuant to Exemption 7(C), yet nothing in the
entry indicates why the privacy interest at stake could not be protected simply
by redacting identifying information.
*Document No. 96 is a six-page deposition summary, withheld pursuant to
Exemption 7(C), and described only as a "[s]ummary of deposition of third party
individual." Segregability once again is not addressed. The entry for
Document No. 104, also a six-page deposition summary, is similarly deficient.
*Document No. 141 is a 29-page declaration withheld pursuant to 7(C),
described as follows:
Third party individual/source declaration. Not public record or waiver of
confidentiality. (WIF)
As with other entries, there is no explanation about why the deletion of
identifying information would not suffice to meet privacy concerns.
*233 The district court concluded that the index, as supplemented by the
Boseker and Gay declarations, fulfilled the government's obligation to supply
"reasoned justification" for its withholdings, and it noted that the Church had
presented no evidence suggesting bad faith in the government's response. The
court observed that the government had supported the individual withholdings
with greater specificity than this court had ratified in Maynard.
In our view, however, the government's showing fell short of providing the
Church with a " 'meaningful opportunity,' " see Wiener, 943 F.2d at 977, to
challenge a substantial number of its unilateral decisions to withhold
documents, thus depriving the district court of "the controverting illumination
that would ordinarily accompany a request to review a lower court's factual
determination," Vaughn, 484 F.2d at 825. We disagree with the district
court that the showing exceeded that affirmed in Maynard. In that case,
see 986 F.2d at 557-59, the FBI produced the withheld documents in redacted
form, withholding only those portions that it claimed were exempt. Next to
each portion withheld, the FBI provided a coded reference to exemption claims
specifically identified in a separately filed declaration. The government also
provided copies of the unredacted documents for the court's in camera review.
Unlike this case, therefore, the court in Maynard was able to perform a
close review of individual documents.
[11] The government suggests that, in the absence of any legitimate question
of good faith, its repeated review of the documents, each time leading to a
conclusion that no significant non-exempt segments could be released, is
sufficient to justify its withholding decisions and failure to segregate. It
claims that the only meaningful way to test the Department's determinations
would have been through in camera review, which the Church did not request.
A lack of bad faith on the part of the government, however, does not relieve
it of its obligation in the first instance to provide enough information to
enable the adversary process to operate in FOIA cases. The presumption of good
faith accorded to agency affidavits, see Carney v. Department of Justice, 19
F.3d 807, 812 (2d Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 86, 130
L.Ed.2d 38 (1994); Maynard, 986 F.2d at 560, can only be applicable when
the agency has provided a reasonably detailed explanation for its withholdings,
see Maynard, 986 F.2d at 560. A court may not without good reason second-
guess an agency's explanation, but it also cannot discharge its de novo review
obligation unless that explanation is sufficiently specific.
[12] Additionally, the fact that the Church did not request in camera
review in no way lessens the government's burden to make an adequate showing.
FOIA provides for in camera review, at the district court's discretion, if the
court finds the agency's materials in support of exemption to be too
generalized. See id. at 557. In other words, in camera review is a tool
available to a court when the government's showing otherwise is inadequate to
satisfy the burden of proving the exempt status of withheld documents. Id.
at 557-58. The Church had no obligation to request such a review.
We emphasize that the index examples described above are merely illustrative,
and that numerous other entries suffer from similar imprecision. We by no
means suggest, however, that every entry is vulnerable. The index is notably
inadequate with respect to lengthier documents, where the lack of correlation
between the exemptions claimed and specific portions of the document, and the
failure to address segregability, combine to make the government's showing
particularly vague. In contrast, a number of documents consist of a single
page. It is fairly inferable from the entries for many of these that there is
no meaningful segregable non-exempt content, and we see nothing to be gained
from requiring more detail. See, e.g., Document Nos. 8, 9, 48, 56, 59,
127. Similarly, where multiple exemptions are claimed for these short
documents, the lack of correlation typically is not a problem.
[13][14] The government makes two points regarding the adequacy of its
declarations and Vaughn index that warrant response. First, it asserts that
the degree of *234 detail required in an index depends upon the nature of
the documents at issue and the particular exemption asserted. We agree that
different approaches apply to the various statutory exemptions, and we will
discuss the specific exemptions claimed by the government in the next section.
At this juncture, we note simply that a categorical approach to nondisclosure
is permissible only when the government can establish that, in every case, a
particular type of information may be withheld regardless of the specific
surrounding circumstances. See supra p. 229.
[15] The government also observes that courts have approved indices with
less detail where the records at issue are voluminous, citing Meeropol v.
Meese, 790 F.2d 942, 956-57 (D.C.Cir.1986). In Meeropol, government
agencies retrieved approximately 500,000 pages of records and released
approximately 200,000 as a result of what the court described as perhaps "the
most demanding FOIA request ever filed," id. at 951. Both the search and
the methods used to evaluate the search in that case were extraordinary, and,
in our view, do not support the sufficiency of a sketchy index in this case.
[FN13] Giving full weight to the concern that the government should not be
subjected to unrealistically exhaustive labors, we nevertheless are convinced
that the task of reconsidering the 191 documents, adding meaningful detail or
explanation where necessary, would not pose an unreasonable burden on the
government. Indeed, including this information at the outset would have
required negligible incremental effort.
FN13. The government's other citation for this point, Weisberg v.
Department of Justice, 745 F.2d 1476, 1483 (D.C.Cir.1984), also involved a
tremendous search, resulting in disclosure of approximately 60,000 pages of
documents. The district court in that case ordered preparation of a
Vaughn index of every two hundredth page of responsive material, a
supplement to that index, and in camera submission of a number of documents
withheld in their entirety. Id. at 1489-90. The circuit approved the
sampling procedure because the number of documents was so great and "it
would not realistically be possible to review each and every one." Id.
at 1490.
Moreover, even when generic exemptions are appropriate, the Supreme
Court contemplates that the government provide meaningful detail in support of
its withholdings. In Landano, the Court rejected the government's argument
that a source should be presumed confidential within the meaning of Exemption
7(D) whenever the source provides information to the FBI in the course of a
criminal investigation. It held, however, that the inference could be
supported by reference to more narrowly defined generic circumstances. For
example, it would be reasonable to infer that paid informants normally expect
their cooperation with the FBI to be kept confidential. Similarly, the
character of the crime at issue or the source's relation to the crime could
support such an inference.
It is not enough, however, for the government simply to state blandly that the
source's relationship to the crime permits an inference of confidentiality.
Rather, the government has an obligation to spell out that relationship:
[W]hen a document containing confidential source information is requested, it
generally will be possible to establish factors such as the nature of the crime
that was investigated and the source's relation to it. Armed with this
information, the requester will have a more realistic opportunity to develop an
argument that the circumstances do not support an inference of confidentiality.
Landano, 508 U.S. at ----, 113 S.Ct. at 2024.
[16] Of course, as the Court acknowledged in the next sentence of this
passage from Landano, the government is not expected to provide so much
detail in its supporting materials that it risks compromising the very
interests it is seeking to protect. The agency may request in camera review as
a way of demonstrating that no further specificity should be required, and
reviewing courts should consider carefully whether such a step is feasible and
appropriate. As much as possible should be done openly, however, keeping in
mind the goal of advancing adversarial testing of agency decisions. See
Wiener, 943 F.2d at 979 ("Unless the agency discloses 'as much information
as possible without thwarting the [claimed] exemption's *235 purpose ...,
the adversarial process is unnecessarily compromised." (citation omitted)).
We strongly believe that there are meaningful additions that could be made to
the Vaughn index in this case without jeopardizing the interests at stake.
In the next section, which discusses the specific exemptions invoked by the
Department, we note some particular suggestions for improvement.
C. Specific Exemptions
The Department invoked six different FOIA exemptions, alone or in combination,
in support of its withholdings. On appeal, the Church does not challenge the
government's use of either Exemption 2, which protects from disclosure
information related solely to the internal personnel rules and practices of an
agency, see 5 U.S.C. s 552(b)(2), or Exemption 7(F), which provides for
withholding of law enforcement information that "could reasonably be expected
to endanger the life or physical safety of any individual," 5 U.S.C. s
552(b)(7)(F).
[17] (1) Exemption (b)(3) and Fed.R.Crim.P. 6(e). FOIA Exemption
3, 5 U.S.C. s 552(b)(3), allows the withholding of materials that are
"specifically exempted from disclosure by statute...." The parties agree that
the Department properly invoked this provision to withhold grand jury materials
made exempt from disclosure by Rule 6(e) of the Federal Rules of Criminal
Procedure. See Fund for Constitutional Gov't v. National Archives and
Records Serv., 656 F.2d 856, 867 (D.C.Cir.1981). The Church complains,
however, that it is impossible to determine from the Vaughn index and
affidavits whether all of the documents for which the Department asserted this
privilege genuinely constitute "grand jury" material.
As the district court recognized, the scope of secrecy afforded grand jury
materials is "necessarily broad." Id. at 869.
It encompasses not only the direct revelation of grand jury transcripts but
also the disclosure of information which would reveal "the identities of
witnesses or jurors, the substance of testimony, the strategy or direction of
the investigation, the deliberations or questions of the jurors, and the like."
Id. (quoting SEC v. Dresser Indus., Inc., 628 F.2d 1368, 1382
(D.C.Cir.1980)). In addition, unlike actions under other FOIA exemptions,
agency decisions to withhold materials under Exemption 3 are entitled to some
deference. We have observed that "once a court determines that the statute in
question is an Exemption 3 statute, and that the information requested at least
arguably falls within the statute, FOIA de novo review normally ends,"
Maynard, 986 F.2d at 554 (quoting Aronson, 973 F.2d at 965, 967).
We are satisfied that, under this standard, documents identified as grand jury
exhibits, and whose contents are testimonial in nature or otherwise directly
associated with the grand jury process, such as affidavits and deposition
transcripts, ordinarily may be withheld simply on the basis of their status as
exhibits. [FN14] We distinguish such materials from business records or
similar documents "created for purposes independent of grand jury
investigations, which have legitimate uses unrelated to the substance of the
grand jury proceedings," United States v. Dynavac, Inc., 6 F.3d 1407, 1412
(9th Cir.1993). Although these documents, too, may be subject to nondisclosure
under Exemption 3 if they are grand jury exhibits, the government needs to
provide some basis for a claim that releasing them will implicate the secrecy
concerns protected by Rule 6(e). [FN15]
FN14. This would include, inter alia, document Nos. 2 (grand jury list
of documents), 3 (exhibits list), 130-33, 142, 148, 153, 163, 172, 173,
181, 182, 184, 187, 188-90.
FN15. We think it reasonable for an agency to withhold any document
containing a grand jury exhibit sticker or that is otherwise explicitly
identified on its face as a grand jury exhibit, as release of such
documents reasonably could be viewed as revealing the focus of the grand
jury investigation. See Fund for Constitutional Gov't v. National
Archives and Records Serv., 656 F.2d 856, 869 (D.C.Cir.1981) (information
"identifying documents considered by the grand jury ... falls within the
broad reach of grand jury secrecy...."). See, e.g., Document Nos. 35,
52. Whether some portion of the document is segregable, however, also
needs to be considered and addressed.
*236 The requirement that the government explain the basis for its
conclusion that Rule 6(e), and thus Exemption 3, at least arguably permits
withholding of certain documents applies a fortiori to materials not
specifically identified as grand jury exhibits, but which simply were located
in grand jury files. In this case, for example, Document Nos. 164, 166-170,
174-180 and 183 are labelled as "Grand Jury Materials," and most were found in
a file marked "Grand Jury." [FN16] There is no indication, however, whether
the materials impermissibly would reveal the inner workings of the grand jury.
It cannot be that exposure to the grand jury immunizes information from future
disclosure, regardless of its impact on the interest underlying Rule 6(e).
See Senate of Puerto Rico, 823 F.2d at 582 ("There is no per se rule against
disclosure of any and all information which has reached the grand jury
chambers...."). [FN17] The government is obligated to offer some support for
its claim that release of the sought-after documents would compromise the
secrecy of the grand jury process. [FN18]
FN16. The inadequacy of the Vaughn index is well illustrated by the
entries for Document Nos. 178 and 179. Both documents are identified as
one-page declarations, with 20-page attachments. No. 178 is described as
originating "from file marked 'Grand Jury,' " while 179 is identified only
as "Grand Jury Materials." Both are claimed exempt under Exemption 3, as
well as Exemption 7(C), but no specifics are given as to the contents of
the documents and whether all, or only part, of the document implicates
privacy concerns.
FN17. Indeed, we suspect that a number of documents found in grand jury
files would not be identifiable as connected to a grand jury proceeding at
all because they were generated for another purpose, and presumably would
not be labeled as grand jury material upon release.
FN18. We have tried through our approach to the grand jury issue to tread
a path that honors the requester's entitlement to an adequate and lawful
explanation for any withholding decision, but protects the government from
unreasonable burdens in justifying nondisclosure. The government's
obligation thus is minimal except for materials assertedly connected to a
grand jury investigation that bear no facial connection to grand jury
proceedings.
(2) Exemption (b)(5). FOIA Exemption 5, 5 U.S.C. s 552(b)(5),
permits withholding of "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." This exemption has been interpreted to encompass
"those documents, and only those documents, normally privileged in the civil
discovery context," NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149, 95
S.Ct. 1504, 1515-16, 44 L.Ed.2d 29 (1975). Consistent with a change in policy
by the Clinton Administration, the Department has since the time of the
district court's opinion released a number of documents previously withheld
based on the attorney-client and deliberative process privileges, and now
invokes Exemption 5 only for certain documents assertedly protected by the
attorney work-product privilege.
[18] To withhold a document based on this privilege, the Department must
prove that it was prepared under the direction of an attorney in contemplation
of litigation. See Senate of Puerto Rico, 823 F.2d at 586; Sprague v.
Director, Office of Workers' Comp. Programs, Etc., 688 F.2d 862, 869 (1st
Cir.1982). And, as with all exemptions, it must offer some basis for
concluding that there are no segregable, nonexempt portions of the document.
The district court found that the Boseker declaration and Vaughn index
justified all of the Exemption 5 withholdings, and it pointed to Boseker's
assertion that the records to which the work-product privilege was applied
reflect "such matters as trial preparation, trial strategy, interpretations,
and personal evaluations and opinions pertinent to the Church's and other third
party individuals' civil and criminal cases."
[19] The court specifically considered Document No. 4, whose entry in the
Vaughn index we previously have quoted, see supra p. 230, and concluded
that the entry was sufficient to validate the Department's decision to withhold
the entire document under Exemption 5. We do not agree. For purposes of this
exemption, the Vaughn index states only that document No. 4 consists of 21
pages of typed attorney notes "marshalling facts and sources of information
created in contemplation of litigation." The Boseker *237 declaration adds
to this only generalized comments about all of the documents for which the
work-product privilege was asserted. We believe that, at a minimum, an agency
seeking to withhold a document in its entirety under this exemption must
identify the litigation for which the document was created (either by name or
through factual description) and explain why the work-product privilege applies
to all portions of the document.
As presently written, the entry for document No. 4 indicates that at least
some of the 21 pages of notes involve material covered by the attorney work-
product privilege. Because there is no correlation between the three claimed
exemptions (Nos. b(5), b(7)(D), b(7)(C)) and specific portions of the document,
however, it is not clear whether Exemption 5 is intended to justify withholding
of the entire document. Moreover, the index does not disclose the nature of
this document: Is it a draft of a pretrial memorandum?; an internal
memorandum evaluating whether to file charges or whom to call as witnesses?;
or simply a summary of all information collected to date? Neither the Church
nor the court is able to evaluate meaningfully whether all of the factual
material properly is exempted from disclosure because it is integrated into the
document as part of the attorney's pre-trial work, in which event it
appropriately could be withheld, see Mervin v. FTC, 591 F.2d 821, 826
(D.C.Cir.1978), or whether the agency has overstepped proper boundaries in
determining what constitutes a document prepared in anticipation of litigation.
In Mervin, the majority concluded that further government affidavits
or in camera review was unnecessary for a determination of segregability
because the affidavit already submitted demonstrated that any factual material
in the four documents at issue there "is incidental to and bound up with,
discussion of litigation strategy and the deliberative processes of attorneys
actively preparing their defense for a pending lawsuit." Id. [FN19] We do
not believe such a conclusion can be reached in this case based on the
information provided thus far for a number of documents claimed exempt under
Exemption 5. See, e.g., Document Nos. 4, 40 (74-page "prosecution memo"),
76, 91, 92 and 139. [FN20] Certain other documents for which the Department
has invoked Exemption 5 simply are not adequately described to permit
meaningful review of the withholding decision. See, e.g., Document Nos.
105-109. [FN21]
FN19. The district court in this case relied on Mervin in upholding the
Department's application of Exemption 5, noting that an attorney's
affidavit sufficed there to prove that factual material contained within
the documents fell within the work-product privilege. Unlike the affidavit
in Mervin, however, the affidavits here are not document-specific, and
are thus much less informative.
FN20. We note that factual material contained within a document subject to
the work product privilege often will be embraced within the privilege, and
thus be exempt from disclosure. See A. Michael's Piano, Inc. v. FTC, 18
F.3d 138, 147 (2d Cir.1994); Martin v. Office of Special Counsel, MSPB,
819 F.2d 1181, 1186 (D.C.Cir.1987).
FN21. We reiterate a point made earlier, that the lack of specificity
poses a particular problem with respect to lengthier documents. Although
the entries for a number of shorter documents suffer some of the same
inadequacies--notably lack of correlation between text and exemptions, and
failure to address segregability--the brevity of these documents makes it
reasonable to validate the government's withholding decision with little or
no additional information. For example, if the Department simply
identifies the prosecution for which Document No. 43 was prepared, no
further details are necessary. See also, e.g., entries for Document
Nos. 68, 70, 74, 93.
[20] (3) Exemption b(7)(C). FOIA exemption 7(C), 5 U.S.C. s
552(b)(7)(C), exempts from disclosure information compiled for law enforcement
purposes that "could reasonably be expected to constitute an unwarranted
invasion of personal privacy." The Boseker and Gay declarations state that the
Department relied on Exemption 7(C) to withhold names and other personal
information about various individuals, including personnel of the United States
Attorney's Office and FBI agents, other federal, state and local government
personnel, and individuals who provided information to the FBI or the USAO.
The parties agree that Exemption 7(C) requires balancing the privacy interests
at issue against any public interest in disclosure, *238 see Reporters
Committee, 489 U.S. at 762, 109 S.Ct. at 1476, and further agree that
information identifying specific individuals usually may be withheld because of
these individuals' "significant privacy interests in not having their names
revealed," Maynard, 986 F.2d at 566. The Church, however, contends that the
Department's Vaughn index repeatedly fails to explain why the agency has
withheld an entire document rather than releasing it with the identifying
information redacted. [FN22]
FN22. In its brief, the government suggests that it was warranted in
dispensing with the item-by-item detail that ordinarily is necessary to
justify Exemption 7(C) withholdings because a categorical determination to
withhold personal information is permissible in the absence of a
demonstrated public interest in that information. We agree that the Church
has not put forward a public interest in the names or other personal
identifying information that would override the strong privacy interest in
such information contained in law enforcement files, see Maynard, 986
F.2d at 566. A categorical exclusion for identifying information therefore
is appropriate here. Cf. SafeCard Servs., Inc. v. SEC, 926 F.2d 1197,
1205-06 (D.C.Cir.1991). This conclusion does not resolve the Church's
central claim, however--that the government failed to demonstrate on an
item-by-item basis why documents should not be released with the personal
identifying information redacted. Cf. Norwood v. FAA, 993 F.2d 570,
574-75 (6th Cir.1993) (under privacy Exemption 6, "excluding from
disclosure any and all fragments of information that might assist a
diligent researcher in identifying a person ... is not supportable").
We have pointed to just such deficiencies in our earlier discussion of
particular documents, see supra pp. 231-233, and need not retread that
ground. It suffices to say at this point that many of the index entries for
documents assertedly exempt under Exemption 7(C) lack the necessary specificity
for a meaningful review of the agency's decision to withhold them in their
entirety. The district court did not address the Exemption 7 segregability
issue.
[21] (4) Exemption b(7)(D). FOIA exemption 7(D), 5 U.S.C. s
552(b)(7)(D), protects from disclosure
records or information compiled for law enforcement purposes ... [that] could
reasonably be expected to disclose the identity of a confidential source ...
and, in the case of a record or information compiled by criminal law
enforcement authority in the course of a criminal investigation ... information
furnished by a confidential source.
The exemption protects the identity of a confidential source, any
information that could identify such a source, and all information furnished by
such a source. Irons v. FBI, 880 F.2d 1446, 1447 (1st Cir.1989) (en banc).
The Supreme Court's Landano decision, 508 U.S. at ----, 113 S.Ct. 2014,
which we have described earlier, see supra at pp. 228, 234, addressed the
government's contention that all sources supplying information to a law
enforcement agency during a criminal investigation should be presumed
confidential within the meaning of Exemption 7. The Court rejected this broad
presumption, ruling instead that a source properly is considered confidential
only if there has been an express assurance of confidentiality or if the
particular circumstances support an inference of confidentiality. When the
factors suggesting confidentiality are present, the government may withhold a
document under Exemption 7(D) without detailing the circumstances surrounding a
particular interview. Id. at ---- - ----, 113 S.Ct. at 2023-24.
After the Landano decision, the government re-evaluated all of the
documents to which it had applied Exemption 7(D), deleted that provision as a
basis for withholding 39 documents, and consequently released an additional 20
pages of information to the Church. The district court found that the
remaining 7(D) claims were supported adequately by the Vaughn index and the
affidavits.
Our review of the index, however, reveals a significant number of entries
invoking Exemption 7(D) that are insufficient because they either fail to
specify whether the source was provided an express or implied grant of
confidentiality, or do not provide sufficient detail about the surrounding
circumstances to support an assertion of implied confidentiality.
Document No. 51 in the Vaughn index, for example, was withheld based solely
on Exemption *239 7(D). The full description for the document is as
follows:
Third party individual correspondence to AUSA regarding draft declaration of
third party individual witness statements confidentially obtained. Source
identified as confidential elsewhere. (WIF)
The entry does not indicate where in the record this source was identified as
confidential. It could have been referring, for example, to the immediately
preceding entry, for Document No. 50. That entry, however, concerns a 10-page
cover letter and attached letter described as follows:
Third party individual correspondence to AUSA regarding attached handwritten
letter and notes of third party source of information gathered in course of
investigation. Implied confidentiality based upon source and relationship to
investigation. Refers to not being at liberty to disclose source. (WIF).
[22] We do not believe it is sufficient, under Landano, to invoke
Exemption 7(D) by stating generally that confidentiality was implied from a
relationship between the author of the document and the investigation. The
Supreme Court's Landano decision clearly contemplates that a claim of
implied confidentiality ordinarily will require disclosure of the specific
nature of the factors urged in support of the implication, such as the type of
crime or the source's relationship to it. Only in this way will the requester
have a "realistic opportunity" to develop an argument that the circumstances do
not support an inference of confidentiality, see Landano, 508 U.S. at ----,
113 S.Ct. at 2024.
Thus, the government must provide more detail to meet its burden of
demonstrating that Document No. 50 falls within Exemption 7(D). [FN23]
Document No. 51 is obviously likewise deficient. Similar problems exist in
other entries, including Nos. 55, 60, 62, 67, 70, 76, 92, 93, 94, 97, 112,
113, 122-23, 127 and 129. [FN24] We agree with the district court, however,
that an investigator's policy of affording confidentiality in interviews is an
adequate basis upon which the government may consider the information provided
to the investigator to be confidential. See, e.g., Document Nos. 7 and 19.
We suspect that, in such cases, the government at the time of the document
search rarely would be in a position to learn the precise nature of any
discussion concerning confidentiality between the investigator and
interviewee. We think it reasonable to presume, based on the investigator's
policy, that he or she had given an assurance of confidentiality.
FN23. The government, of course, need not provide so much detail that the
confidentiality is destroyed. It must, however, explain as specifically as
possible why providing additional information would jeopardize the
confidentiality interest. If the explanation is too sketchy, in camera
review may be necessary.
FN24. We contrast these entries with those containing facts providing a
rationale for the inference of confidentiality, such as No. 13 (author
incarcerated); No. 100 (communication between husband and wife); No. 101
(threats of harm and harassment); Nos. 102-03 (death threat); No. 120
(threatened harm).
IV. Where Do We Go From Here?
Our conclusion that the government has failed to provide adequate support for
withholding many of the 191 documents listed in the Vaughn index requires
that we vacate the summary judgment for the agency and return the case to the
district court for further proceedings.
What precisely should happen upon remand we leave to the district court's
discretion. We offer a few thoughts, however, about what occurs to us as a
logical and appropriate course of action. The court may wish to begin by
asking the parties to submit a brief statement identifying those documents it
believes need further justification in light of our decision. Aided by these,
the court could make its own determination of the documents needing additional
review, and then direct the government to revise its submissions with respect
to only those specific records. Any dispute as to whether other entries should
be included could be raised at that time.
In any such proceeding, we assume the good faith and reasonable cooperation of
the requesting party as well as of the government. Indeed, the workability of
FOIA depends *240 largely upon the responsible, as well as responsive,
efforts of the parties.
If, after the government has given additional attention to the specified
documents, the index remains opaque with respect to certain documents and no
other support is provided, the court has various options for proceeding. It
could choose to permit discovery limited to specified documents, it could
conduct an in camera review of selected documents, it could order release of
some documents, or it could direct a combination of these procedures. [FN25]
FN25. The Church on appeal has made a broad challenge to the adequacy of
the government's explanations for withholding documents, and has not argued
about the merits of the withholding decisions for those documents for which
the index and affidavits are sufficiently detailed. We likewise have
focused on the general adequacy of the showing, and have not considered the
merits of any particular withholding decision. We note, however, that many
of the index entries appear to support nondisclosure of the documents, and
we expect that the district court on remand will simply reaffirm its
previous determinations that those documents are exempt from release.
We also have not considered the Church's contention that the Department
improperly referred approximately 300 pages of material originating from
other agencies to those agencies for processing. The issue was not raised
in the Church's opposition to the motion for summary judgment, and we
therefore decline to consider it here. The district court may choose to
take up this matter on remand.
[23] We recognize that the Department already has provided a significant
amount of information to the Church, and we do not minimize its effort. Its
obligation, however, is to provide enough information about each document to
permit "effective advocacy" by the requester:
[T]he [agency] must bear in mind that the purpose of the index is not merely
to inform the requester of the agency's conclusion that a particular document
is exempt from disclosure under one or more of the statutory exemptions, but to
afford the requester an opportunity to intelligently advocate release of the
withheld documents and to afford the court an opportunity to intelligently
judge the contest.
Wiener, 943 F.2d at 979.
The judgment of the district court therefore is AFFIRMED as to the adequacy of
the search. The judgment is otherwise VACATED, and the case REMANDED for
further proceedings consistent with this decision. No costs.