Senate of the Com. of Puerto Rico on Behalf of Judiciary Committee v. U.S. Dept. of Justice

• Decision Date: 23 June 1987
• Docket Number: No. 86-5257,86-5257
• Citation: 823 F.2d 574
• Parties: SENATE OF THE COMMONWEALTH OF PUERTO RICO on Behalf of JUDICIARY COMMITTEE, Appellant v. UNITED STATES DEPARTMENT OF JUSTICE, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 574

823 F.2d 574

262 U.S.App.D.C. 166

SENATE OF THE COMMONWEALTH OF PUERTO RICO on Behalf of JUDICIARY COMMITTEE, Appellant v. UNITED STATES DEPARTMENT OF JUSTICE, et al.

No. 86-5257.

United States Court of Appeals, District of Columbia Circuit.

Argued Feb. 3, 1987.

Decided June 23, 1987.

Appeal from the United States District Court for the District of Columbia (Civil Action No. 84-01829).

Stephen L. Braga, with whom Herbert J. Miller, Jr. and Raymond G. Larroca, Washington, D.C., were on the brief, for appellant.

Robert E.L. Eaton, Jr., Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty., Royce C. Lamberth and R. Craig Lawrence, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellees.

Before RUTH BADER GINSBURG, BUCKLEY and D.H. GINSBURG, Circuit Judges.

Opinion for the Court filed by Circuit Judge RUTH BADER GINSBURG.

RUTH BADER GINSBURG, Circuit Judge:

This appeal challenges several rulings made by the district court in a Freedom of Information Act (FOIA) case. The requesting party is the Senate of the Commonwealth of Puerto Rico; the agency addressed is the Department of Justice (DOJ). Several years ago, the Senate of Puerto Rico launched an investigation into possible official complicity in a 1978 politically-inspired homicide; as part of that endeavor, the Senate submitted a FOIA request to the DOJ seeking information relating to the homicide. The DOJ released some of the material sought in the request, but claimed various FOIA exemptions for several withheld documents. In a series of rulings, the district court upheld all of the DOJ's exemption claims.

We conclude that the district court ruled correctly regarding the DOJ's claim that production of certain law enforcement records "would ... constitute an unwarranted invasion of personal privacy." 5 U.S.C. Sec. 552(b)(7)(C). We vacate the other contested rulings, however, because the record does not bear out the DOJ's exemption claims. We remand those portions of the case so that the DOJ will be afforded an opportunity to sustain its claims. If, on remand, the DOJ does not provide adequate support for the asserted exemptions, it will be obliged to release the material still sought by the Senate of Puerto Rico.

I.

On July 25, 1978, two Puerto Rican political activists, Arnaldo Rosado and Carlos Soto, were killed by Puerto Rican police officers at Cerro Maravilla, a remote mountain location some distance from San Juan. The incident soon generated fierce controversy as conflicting accounts of the day's events emerged. The official explanation The Special Investigations Division of the Puerto Rico Department of Justice issued a report on this affair in August 1978, absolving the police of culpability in the two deaths. Further investigations (in 1978 and 1980) were undertaken by the Civil Rights Division of the DOJ and other federal law enforcement authorities, including the Federal Bureau of Investigation (FBI), to determine whether the police officers had violated the victims' civil rights. No criminal charges were brought as a result of these inquiries, and the DOJ's investigations were formally closed on April 16, 1980. ¹

--that Rosado and Soto had arrived at Cerro Maravilla intending to blow up a nearby television transmission tower and had fired on the officers, who retaliated in self-defense--was contradicted by several eyewitnesses to the shooting; both the taxi driver, who had transported Rosado, Soto, and a third individual (later identified as a government undercover agent) to the scene, and a technician working at the transmission station, claimed that Rosado and Soto surrendered without a struggle and had been taken, unharmed, into custody before the fatal shots were fired.

In early 1981, the Judiciary Committee of the Senate of Puerto Rico began yet another investigation into the Cerro Maravilla incident. As part of that probe, the Senate submitted to the DOJ, pursuant to FOIA, 5 U.S.C. Sec. 552 (1982), a request for "all evidence" collected by the DOJ during its earlier investigations. ²

The DOJ, citing a backlog of FOIA requests, ³ placed response to the Senate's request on a waiting list on which the matter remained for more than two years, a delay which was to have important repercussions for this case. Despite the unavailability of the federal records, the Senate of Puerto Rico's investigation continued, culminating in highly-publicized televised hearings in the fall of 1983. The DOJ also returned to the fray; in August 1983, it reopened its investigation on the basis of new evidence indicating that several witnesses in its original investigations had perjured themselves. Amid this mounting activity, in December 1983, the DOJ responded to the Senate of Puerto Rico's FOIA request. Referring to the reopened investigation, the DOJ asserted that most of the requested material was covered by section (b)(7)(A) of FOIA, ⁴ which exempts from disclosure "investigatory records compiled for law enforcement purposes ... to the extent that the production of such records would interfere with enforcement proceedings." 5 U.S.C. Sec. 552(b)(7)(A). Certain documents--records of proceedings before a grand jury and intra-agency memoranda--were withheld on the basis of FOIA exemptions (b)(3) and (b)(5), and fifty-five items were released to the Senate. ⁵ The Senate of Puerto Rico pursued an administrative appeal from the decision to withhold the bulk of the requested material.

In the interim, on February 6, 1984, a federal grand jury in Puerto Rico returned a forty-four count indictment against ten police officers involved in the Cerro Maravilla incident, and a criminal trial commenced shortly thereafter. In mid-April, the DOJ's Office of Legal Policy affirmed the initial DOJ action on the Senate's FOIA request, ⁶ and on June 15, 1984, the Senate filed suit seeking release of the withheld items, see 5 U.S.C. Sec. 552(a)(4)(B), along with costs and attorney fees. See id. Sec. 552(a)(4)(E). The defendants promptly While these motions were pending before the district judge, in late March 1985, the criminal trial in the federal district court in Puerto Rico came to an end, with guilty verdicts returned against the principal defendants. The district judge then ordered the parties to "apprise the Court of their respective positions in light of this development," ¹⁰ and specifically directed them to address the question "whether the defendants' (7)(A) [claim] is now moot." ¹¹ The defendants, by affidavit, acknowledged that exemption (7)(A), on the basis originally claimed, "no longer applies to the records pertaining to the events at Cerro Maravilla." ¹² The district judge thereupon held that the previously-filed motions for summary judgment were moot; rejecting the Senate of Puerto Rico's request for immediate entry of judgment in its favor, the judge ordered the defendants to "reevaluate" plaintiff's request "and to disclose to plaintiffs all documents not falling under a legitimate exemption." ¹³

                moved for summary judgment solely on the basis of exemption (7)(A), 7 there being, in their words, "no question that the records at issue ... are investigatory and were compiled for a law enforcement purpose";  release of the records, defendants stated, would "obvious[ly]" interfere with the ongoing enforcement proceedings. 8   The Senate of Puerto Rico filed a cross-motion for summary judgment, arguing that the defendants had not carried their burden 9 of establishing affirmatively that release of the requested documents would indeed interfere with the federal prosecution then underway
                

As a result of that reevaluation, approximately 900 additional pages were released to the Senate, but the DOJ continued to resist disclosure of other material in its possession. On October 5, 1985, the DOJ renewed its motion for summary judgment, supported by two declarations asserting FOIA exemptions (B)(2), (3), (5), (7)(A), (7)(C) and (7)(D) to justify the continued withholding of documents in whole or in part. Following the submission of an opposition to this motion, and the Senate's own cross-motion for summary judgment, the district court granted the defendants' motion in every particular save one; the exception related to the DOJ's claim that disclosure of nineteen pages would interfere with a separate investigation then in progress in Puerto Rico, and thus fell within exemption (7)(A). ¹⁴

The court directed the defendants to "submit more particular facts" ¹⁵ about this separate, ongoing investigation. The defendants responded that "release of any further details ... would seriously impair those enforcement proceedings by disclosing the evidence which has been developed, the evidence which the Government is still developing, and the precise direction and scope of the proceedings." ¹⁶ The district judge then ordered production of the nineteen pages for in camera inspection. ¹⁷ At the conclusion of that inspection, the judge upheld the (7)(A) exemption, noting that, in view of the nature of that exemption, he could not "further describe [his] reasons"

                for so ruling. 18   The Senate of Puerto Rico appeals from the district court's final dispositions.
                

II.

The Senate's first argument on appeal relates to the district court's May 10, 1985 order holding the defendants' original (7)(A) claim moot and ordering a reevaluation of all withheld material. In the Senate's view, the court should have granted the Senate's pending summary judgment motion immediately, thereby ordering production of all requested material, once the sole justification defendants had originally pressed for withholding that material no longer applied. Given the special circumstances of this case, we hold that the district judge properly rejected the Senate's plea.

In Holy Spirit Association v. CIA, 636 F.2d 838, 846 (D.C.Cir.1980), vacated in part as moot, 455 U.S. 997, 102 S.Ct. 1626, 71 L.Ed.2d 858 (1982), we emphasized that "agencies [may] not make new exemption...