Wiener v. F.B.I., 88-5867

Citation943 F.2d 972
Decision Date26 September 1991
Docket NumberNo. 88-5867,88-5867
PartiesJonathan M. WIENER, Plaintiff-Appellant, v. FEDERAL BUREAU OF INVESTIGATION; Federal Bureau of Investigation, Los Angeles Field Office; Federal Bureau of Investigation, New York Field Office; Federal Bureau of Investigation, Detroit Field Office, Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Mark D. Rosenbaum, American Civil Liberties Union Foundation of Southern California, Dan Marmalefsky, Hufstedler, Miller, Kaus & Beardsley, Los Angeles, Cal., for plaintiff-appellant.

Miriam McIntire Nisbet, U.S. Dept. of Justice, Washington, D.C., for defendants-appellees.

Judith R. Epstein, Crosby, Heafey, Roach & May, Oakland, Cal., for amicus.

Appeal from the United States District Court for the Central District of California.

Before BROWNING, SCHROEDER and FERGUSON, Circuit Judges.

JAMES R. BROWNING, Circuit Judge:

Professor Jonathan M. Wiener, Professor of History at the University of California, Irvine, filed a request under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 (1988), for disclosure of records of the Federal Bureau of Investigation concerning John Lennon, late member of the Beatles. Professor Wiener sought to further his research into John Lennon's life, 1 and to bolster his thesis that the investigation of Mr. Lennon by the FBI in the late 1960s and early 1970s reflected the use of executive agency power to suppress political dissent.

The FBI withheld some of the requested records as exempt from disclosure by the terms of the Act. 2 Weiner filed this action to compel complete disclosure and moved to require the FBI to explain why each document withheld was exempt. In response, the FBI filed affidavits of two FBI agents and one CIA agent justifying the withholdings in general terms. The district court ordered the FBI to submit in camera further justification for the withholdings. The FBI filed two additional affidavits and a copy of each withheld document. 3 The court then granted the FBI's motion for summary judgment.

Wiener appealed contending: (1) the public affidavits were inadequate; (2) the district court's findings of fact and law were insufficient; and (3) there were triable issues of fact with respect to the propriety of the claims of exemption. We agree with Wiener's first two contentions and reverse. We do not find it necessary to reach Wiener's third claim.

I

Ordinarily, rules of discovery give each party access to the evidence upon which the court will rely in resolving the dispute between them. In a FOIA case, however, because the issue is whether one party will disclose documents to the other, only the party opposing disclosure will have access to all the facts. See King v. Dep't of Justice, 830 F.2d 210, 218 (D.C.Cir.1987); Vaughn v. Rosen, 484 F.2d 820, 823-25 (D.C.Cir.1973).

"This lack of knowledge by the party seeking disclosure seriously distorts the traditional adversary nature of our legal system[ ]." Vaughn, 484 F.2d at 824. The party requesting disclosure must rely upon his adversary's representations as to the material withheld, and the court is deprived of the benefit of informed advocacy to draw its attention to the weaknesses in the withholding agency's arguments. It is simply "unreasonable to expect a trial judge to do as thorough a job of illumination and characterization as would a party interested in the case." Id. at 825.

In recognition of this problem, government agencies seeking to withhold documents requested under the FOIA have been required to supply the opposing party and the court with a "Vaughn index," 4 identifying each document withheld, the statutory exemption claimed, and a particularized explanation of how disclosure of the particular document would damage the interest protected by the claimed exemption. See King, 830 F.2d at 223-24 (describing the content of a Vaughn index); Mead Data Central, Inc. v. Dep't of the Air Force, 566 F.2d 242, 251 (D.C.Cir.1977) (same). The purpose of the index is to "afford the FOIA requester a meaningful opportunity to contest, and the district court an adequate foundation to review, the soundness of the withholding." King, 830 F.2d at 218. The index thus functions to restore the adversary process to some extent, and to permit more effective judicial review of the agency's decision. 5

The district court required a Vaughn index in this case. In response to the court's order, the FBI supplied the court and Wiener with the affidavits of three federal agents; the FBI later filed two additional public affidavits. 6 Whether the government's public affidavits constituted an adequate Vaughn index is a question of law reviewed de novo. Binion v. Dep't of Justice, 695 F.2d 1189, 1193 (9th Cir.1983). We conclude they did not.

The substance of the affidavits consisted of redacted copies of documents partially withheld and blacked out copies of documents withheld in their entirety, with one or more handwritten four digit codes written next to each withheld portion. The first two digits of each code identified the statutory exemption claimed by the FBI. For example, the notation "(b)(1)," is a reference to 5 U.S.C. § 552(b)(1), and indicates that the exemption for properly classified documents ("Exemption 1") was claimed. The next two digits of each code refer to one of a number of categories of information listed in the affidavits into which the withheld information allegedly fell. For example, "c3" refers to "detailed information pertaining to/or provided by an intelligence source." The affidavits list up to nine categories of information for each of the statutory exemptions claimed.

The affidavits then state in general terms why each category of information should be withheld. The explanation given for the withholding of "(b)(1) c3" information (detailed information provided by an intelligence source) is representative:

Information of this category is either specific in nature or of a unique character, and thereby could lead to the identification of a source. For example, this information may contain details obtained from a one-on-one conversation between a source and another individual. It may be of such detail that it pinpoints a critical time frame or reflects a special vantage point from which the source was reporting. The information may be more or less verbatim from a source's report and thus reveal a style of reporting peculiar to that source along with other clues as to authorship, such as handwritten or typewritten reports of the informant. The nature of the information may be such that only a handful of parties would have access to it. It is the degree of specificity of this information that endangers the source's continued anonymity....

(Emphasis added). Precisely the same explanation is given for each "(b)(1) c3" withholding.

These "boilerplate" explanations were drawn from a "master" response filed by the FBI for many FOIA requests. 7 No effort is made to tailor the explanation to the specific document withheld. Remarkably, in the original Vaughn index submitted by the FBI, John Lennon's name does not appear at all. 8 The explanations offered are precisely the sort of "[c]ategorical description[s] of redacted material coupled with categorical indication of anticipated consequences of disclosure" the D.C. Circuit properly rejected in King as "clearly inadequate." King, 830 F.2d at 224.

This categorical approach affords Wiener little or no opportunity to argue for release of particular documents. The most obvious obstacle to effective advocacy is the FBI's decision to state alternatively several possible reasons for withholding documents, without identifying the specific reason or reasons for withholding each particular document. Effective advocacy is possible only if the requester knows the precise basis for nondisclosure. King, 830 F.2d at 218-19. The agency may give alternative reasons for withholding a document only if each reason is applicable to the document at issue.

Moreover, the level of specificity in the index submitted in this case is insufficient. "Specificity is the defining requirement of the Vaughn index." King, 830 F.2d at 219; see also Vaughn, 484 F.2d at 827. Unless the agency discloses "as much information as possible without thwarting the [claimed] exemption's purpose," King, 830 F.2d at 224, the adversarial process is unnecessarily compromised. The FBI did not disclose all it could. Indeed, the index provides no information about particular documents and portions of documents that might be useful in contesting nondisclosure--the two principal affidavits of Agents Chester and Peterson make no reference to any particular document at all.

In camera review of the withheld documents by the court is not an acceptable substitute for an adequate Vaughn index. In camera review does not permit effective advocacy. See Doyle v. FBI, 722 F.2d 554, 556 (9th Cir.1983); Vaughn, 484 F.2d at 825. Therefore, resort to in camera review is appropriate only after "the government has submitted as detailed public affidavits and testimony as possible." Doyle, 722 F.2d at 556; see also, Ingle v. Dep't of Justice, 698 F.2d 259, 266 (6th Cir.1983) ("no court should consider in camera review if a Vaughn Index can adequately resolve the issue"). In camera review may supplement an adequate Vaughn index, but may not replace it. 9 Cf. NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 224, 98 S.Ct. 2311, 2318, 57 L.Ed.2d 159 (1978) ("in camera review ... is designed to be invoked when the issue before the District Court could not be otherwise resolved").

In revising the Vaughn index on remand, the FBI 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...

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