30 F.3d 224 (1st Cir. 1994), 94-1112, Church of Scientology Intern. v. United States Dept. of Justice

Docket Nº:94-1112.
Citation:30 F.3d 224
Case Date:July 26, 1994
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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30 F.3d 224 (1st Cir. 1994)




No. 94-1112.

United States Court of Appeals, First Circuit

July 26, 1994

Heard May 4, 1994.

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[Copyrighted Material Omitted]

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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. Sec. 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

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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. 1 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.

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, --- U.S. ----, 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, 2 resulted in the release of approximately 75 more pages in full and 15 in part.

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, 3 and in a Vaughn index. 4 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.

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

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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

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. Sec. 552(a)(3), (b). 5 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.

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. Sec. 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)).

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,

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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.

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, --- 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...

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