Armstrong v. Executive Office of the President
| Decision Date | 25 October 1996 |
| Docket Number | No. 95-5377,95-5377 |
| Citation | 97 F.3d 575 |
| Parties | Scott ARMSTRONG, Appellant, v. EXECUTIVE OFFICE OF THE PRESIDENT, et al., Appellees. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeal from the United States District Court for the District of Columbia (No. 89cv00142).
Michael E. Tankersley, Washington, DC, argued the cause, for appellant, with whom Lucinda A. Sikes and Alan B. Morrison, were on the briefs.
Michael S. Raab, Attorney, United States Department of Justice, Washington, DC, argued the cause, for appellees, with whom Frank W. Hunger, Assistant Attorney General, Eric H. Holder, Jr., United States Attorney, Leonard Schaitman, Attorney, and Freddi Lipstein, Senior Counsel, United States Department of Justice, were on the brief.
Before: WALD, SILBERMAN and SENTELLE, Circuit Judges.
Opinion for the Court filed by Circuit Judge SENTELLE.
Appellant Scott Armstrong appeals from three of the district court's rulings in his Freedom of Information Act (FOIA) lawsuit. Armstrong argues that the district court erred by failing to conduct in camera review of four documents, by accepting an internally inconsistent explanation for why information in another document was withheld, and holding that the government need not reveal the names of lower-level FBI agents who participated in meetings at the White House. Armstrong initially raised a fourth contention that has since been mooted by the government's subsequent release of the document in question. We affirm the district court's ruling as to Armstrong's first two contentions. We reverse and remand the district court's judgment as to the third. We vacate the district court's judgment as to the issue that has now become moot.
The claims before this court today arise from a three-count lawsuit originally brought by Armstrong in 1989. This court has dealt with other issues arising from this case in Armstrong v. Executive Office of the President, 90 F.3d 553 (D.C.Cir.1996) (), Armstrong v. Executive Office of the President, 1 F.3d 1274 (D.C.Cir.1993), and Armstrong v. Bush, 924 F.2d 282 (D.C.Cir.1991). The district court has issued numerous orders and opinions.
Armstrong's original FOIA request was for all documents from the Reagan Administration found in the Professional Office System (PROFS) maintained by the Executive Office of the President (EOP) and the National Security Council (NSC). PROFS is an office automation system that contains information such as e-mail correspondence, memoranda, and calendars. This initial request was for an enormous number of documents.
The number of documents requested has been substantially reduced over the course of this litigation. In February 1992, appellant narrowed his request to a subset of the PROFS materials. In September of that year the district court entered a stipulation and order that the government process and release PROFS materials that had already been printed out in hard copy. In January 1994, the district court entered another order, further narrowing the scope of appellant's request and ordering the government to comply. The scope of the request has been further limited by an agreement between the parties.
In response to these requests, the government has released a substantial number of documents, many of which have had portions redacted. Appellant has, over the years, challenged these redactions and the government has responded to some of these challenges by releasing the requested documents in full. The remaining redacted documents are described in the Vaughn index prepared for this litigation.
The parties filed cross motions for summary judgment. Appellant requested that the district court review 17 documents in camera, urged the court to compel the disclosure of the names of lower-level FBI agents who attended White House meetings, and challenged the government's failure to disclose a one-page Office of Science and Technology Policy (OSTP) document. The district court ruled that it would review four documents in camera, but upheld the government's refusal to disclose the names of the FBI agents and the OSTP document. After reviewing the four documents in camera, along with an in camera affidavit supplied by the government, the district court held that all of the redactions were justified. The issue regarding the OSTP document has been mooted by the government's disclosure of the document. Appellant now makes three challenges to the district court's ruling.
FOIA requires the government to make public any non-exempt material that is "reasonably segregable" from a record that is otherwise legitimately withheld. 5 U.S.C. § 552(b). In making a determination as to segregability or any other question under FOIA, a district court judge "may examine the contents of ... agency records in camera...." 5 U.S.C. § 552(a)(4)(B). This Circuit has interpreted this language to give district court judges broad discretion in determining whether in camera review is appropriate. Center for Auto Safety v. Environmental Protection Agency, 731 F.2d 16, 20 (D.C.Cir.1984); Ray v. Turner, 587 F.2d 1187, 1195 (D.C.Cir.1978).
We have also held, however, that the district court judge's discretion is not unlimited. Summary judgment may not be appropriate without in camera review when agency affidavits in support of a claim of exemption are insufficiently detailed or there is evidence of bad faith on the part of the agency. Quinon v. Federal Bureau of Investigation, 86 F.3d 1222, 1228 (D.C.Cir.1996); Hayden v. National Security Agency, 608 F.2d 1381, 1387 (D.C.Cir.1979), cert. denied, 446 U.S. 937, 100 S.Ct. 2156, 64 L.Ed.2d 790 (1980). In addition, a district court may err by " 'simply approv[ing] the withholding of an entire document without entering a finding on segregability, or lack thereof.' " Schiller v. National Labor Relations Board, 964 F.2d 1205, 1210 (D.C.Cir.1992) (quoting Powell v. United States Bureau of Prisons, 927 F.2d 1239, 1242 n. 4 (D.C.Cir.1991)).
Armstrong does not dispute that the government has met its burden that some portion of each of these four documents is exempt from disclosure. He argues rather that the government has not adequately explained why the exempt material in these documents is not segregable from the non-exempt material. He contends that in the absence of an adequate explanation as to non-segregability, the district court judge could not have upheld these exemption claims without conducting in camera review.
We affirm the district court's holding that the government has provided an adequate explanation for the non-segregability of each of these four documents. The government affidavits provided here show with "reasonable specificity" why the documents cannot be further segregated. See Quinon, 86 F.3d at 1227; Mead Data Central v. United States Department of Air Force, 566 F.2d 242, 261 (D.C.Cir.1977). Given the legal adequacy of these explanations, the district court did not abuse its discretion in declining to conduct in camera review. 5 U.S.C. § 552(a)(4)(B) () (emphasis added).
Document B-1 is an e-mail message from Oliver North entitled "Smoking Gun?" With the exception of the introductory phrase "At my request," the entire message has been redacted. In his Third Declaration, David Van Tassel of the NSC and the National Archives and Records Administration explained that "smoking gun" refers not to any covert activity by North or any other American official, but rather to a piece of intelligence about a foreign terrorist group. Third Van Tassel Decl. at p 10. Van Tassel went on to explain that the "redacted segment cannot be segregated further because it discusses throughout intelligence data as well as cooperative counter-terrorist actions flowing from that intelligence." Id.
Appellant challenges the adequacy of this explanation for non-segregability. He contends that because the Second Van Tassel Declaration described this document as being in two portions, the Third Van Tassel Declaration's explanation is inadequate because it doesn't distinguish between the two portions of the document. This, he contends, violates Schiller, 964 F.2d at 1209, which requires an agency to correlate claimed exemptions with particular passages in withheld documents.
The rule of Schiller, however, was not violated here. Schiller requires the agency to correlate claimed exemptions with particular passages. The agency did this. The Third Van Tassel Declaration explains that the document could not be further segregated because it discusses sensitive intelligence data "throughout." This clearly covers both portions of the document that the Second Van Tassel Declaration originally described. This explanation is far more than what was given in Schiller where this court said that the district court and the Board "appear[ed] to have overlooked the segregability requirement." Id.
The government affidavit showed with "reasonable specificity" why this document could not be further segregated. The district court judge had enough information to make his decision whether to grant summary judgment on this document. He chose to do so without conducting in camera review. This was not an abuse of discretion.
Document B-2 is a six-page PROFS note entitled "CONFRONTING LIBYA IN THE PRESENT POLITICAL CONTEXT." The entire text of the document after the subject page has been redacted. The Vaughn Index described this document as containing a lengthy analysis of the situation in Libya. The Third Van Tassel...
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