Bonner v. U.S. Dept. of State

• Decision Date: 26 March 1991
• Docket Number: No. 90-5111,90-5111
• Citation: 289 U.S.App.D.C. 56,928 F.2d 1148
• Parties: , 18 Media L. Rep. 2064 Raymond T. BONNER, Appellant, v. UNITED STATES DEPARTMENT OF STATE.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1148

928 F.2d 1148

289 U.S.App.D.C. 56, 18 Media L. Rep. 2064

Raymond T. BONNER, Appellant, v. UNITED STATES DEPARTMENT OF STATE.

No. 90-5111.

United States Court of Appeals District of Columbia Circuit.

Argued Feb. 12, 1991.

Decided March 26, 1991.

Appeal from the United States District Court for the District of Columbia (Civil Action No. 86-00769).

Emilio W. Cividanes, with whom David W. Danner, Ronald L. Plesser, and Sheryl L. Walter, Washington, D.C., were on the brief, for appellant.

Edward R. Cohen, Atty., Dept. of Justice, with whom Stuart M. Gerson, Asst. Atty. Gen., Jay B. Stephens, U.S. Atty., and Leonard Schaitman, Atty., Dept. of Justice, were on the brief, for appellee. E. Roy Hawkens, Atty., Dept. of Justice, Washington, D.C., entered an appearance for appellee.

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

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

RUTH BADER GINSBURG, Circuit Judge:

This appeal concerns the use of representative sampling in Freedom of Information Act ("FOIA") cases to determine the validity of an agency's FOIA exemption claims. We consider, in particular, the effect on representative sampling when an agency releases some of the sample documents without excisions, instead of justifying their continued redaction. We hold that, in order to maintain the representativeness of the sample, a district court must determine whether the released material was properly withheld when initially reviewed by the agency.

I.

Raymond Bonner, an author and a journalist, filed approximately 86 FOIA requests in 1984 and 1985 seeking documents from the United States Department of State regarding U.S.-Philippines relations. ¹ Dissatisfied with the pace at which the State Department was processing his requests, Bonner commenced this civil action in March 1986. After negotiations, Bonner agreed to reduce the scope of his requests and the State Department agreed to expedite its processing. Eventually, the Department identified 4,641 documents as responsive to Bonner's requests. By July 1987, 2,827 of these documents were released in full, 1,033 were released with portions redacted, and 743 were completely withheld.

With 1,776 documents still in dispute, the State Department and Bonner agreed, in September 1987, to test State's FOIA exemption claims through a sampling procedure. Under the agreement, Bonner would choose 63 documents from the partially redacted group of 1,033 documents, and the State Department would prepare a "Vaughn index," summarily describing the withheld information and presenting State's justification for each deletion. See Vaughn v. Rosen, 484 F.2d 820 (D.C.Cir.1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974). ² In addition, the State Department would prepare a less detailed descriptive index of the 743 fully withheld documents, identifying each document by author, recipient, date, type (e.g., telegram, memorandum), subject matter, number of pages, and any brief title used internally by State (e.g., cable numbers). The terms of this agreement were set out in a district court order. See Bonner v. United States Dep't of State, No. 86-0769 (D.D.C. Sept. 15, 1987) (Stipulation and Order), reproduced in Joint Appendix ("J.A.") at 11.

A few months later, the State Department furnished Bonner with the Department's Vaughn index. ³ The index, however, covered only 44 of the 63 sample documents. In the course of preparing the Vaughn index in late 1987, the State Department determined that 19 of the documents could be released in full "due to the change of circumstances and the passage of time." See Declaration of John Eaves, December 9, 1987, at 2, J.A. at 22. Without referring to the originally redacted contents of these 19 documents, and then accounting for the initial withholdings, the State Department simply released the documents in full to Bonner. ⁴

In February 1988, Bonner and the State Department filed cross-motions for partial summary judgment regarding the sample documents. Along with his motion, Bonner submitted the Vaughn index covering the 44 redacted documents, the texts of all 63 sample documents as originally redacted, and the full texts of the 19 documents as newly released. The redacted texts of the 63 sample documents contained marginal notations at the point of the redaction citing the State Department's authority under FOIA, 5 U.S.C. Sec. 552(b), and Executive Order No. 12,356, 47 Fed.Reg. 14,874 (1982), for the excisions.

In his motion for partial summary judgment, ⁵ Bonner argued that the State Department's full release of the 19 documents, without accounting for the excisions originally made, destroyed the representativeness of the sample. Bonner also argued that the Department's late release of the 19 documents, and its exclusion of them from the Vaughn index, evidenced the Department's arbitrariness and bad faith in evaluating Bonner's FOIA requests. Finally, Bonner challenged the national security exemptions asserted by the State Department for the excisions in 31 of the 44 redacted documents. ⁶

The district court granted the Department's partial summary judgment motion and denied Bonner's. See Bonner v. United States Dep't of State, 724 F.Supp. 1028 (D.D.C.1989). Bonner had "offer[ed] no evidence that the sample's representativeness ha[d] been destroyed," the district judge stated. Id. at 1030. The judge noted in this context that Bonner sought district court determination whether the newly released information in the 19 documents had been properly withheld when the State Department first turned over information in response to Bonner's FOIA requests. Declining to undertake such a document-by-document examination, the district judge declared: "Once the information has been released, a court has no role to play." Id. at 1030 n. 4 (citing Tijerina v. Walters, 821 F.2d 789, 799 (D.C.Cir.1987) and Crooker v. United States State Dep't, 628 F.2d 9, 10 (D.C.Cir.1980)). The district court further found that the release of the 19 documents was the result of "a reasoned determination that these documents could safely be released" and did not "evidence agency arbitrariness or bad faith." Id. at 1030.

With regard to the 44 documents covered by the Vaughn index, the district court concluded that the State Department had adequately justified its national security exemption claims, 5 U.S.C. Sec. 552(b)(1). See id. at 1033. Bonner does not now take issue with that determination, nor does he further press his charge of agency bad faith.

In the months following the partial summary judgment, the parties conducted settlement negotiations that proved fruitless. Bonner then filed a series of discovery requests seeking additional information on the 743 fully withheld documents and a fuller explanation of the "change of circumstances and the passage of time" that allowed the State Department to release without excisions the 19 once redacted documents. In March 1990, the district court entered a final order denying Bonner's discovery requests and dismissing the action with prejudice. See Bonner v. United States Dep't of State, No. 86-769 (D.D.C. March 9, 1990) (Order), J.A. at 43. The court found "[l]ogically implicit" in the parties' stipulation concerning the representative sample, an "understanding that the Court's ruling concerning the sample would apply to all of the approximately 1,800 documents at issue in this case." Id. at 2, J.A. at 44.

II.

Representative sampling is an appropriate procedure to test an agency's FOIA exemption claims when a large number of documents are involved. See, e.g., Meeropol v. Meese, 790 F.2d 942, 958 (D.C.Cir.1986); Weisberg v. United States Dep't of Justice, 745 F.2d 1476, 1490 (D.C.Cir.1984). Representative sampling allows the court and the parties to reduce a voluminous FOIA exemption case to a manageable number of items that can be evaluated individually through a Vaughn index or an in camera inspection. If the sample is well-chosen, a court can, with some confidence, "extrapolate its conclusions from the representative sample to the larger group of withheld materials." Fensterwald v. United States Central Intelligence Agency, 443 F.Supp. 667, 669 (D.D.C.1977).

Representative sampling thus involves a trade-off between the high degree of confidence that comes from examining every item for which exemption is claimed, and the limitations of time and resources that constrain agencies, courts, and FOIA requesters alike. But the technique will yield satisfactory results only if the sample employed is sufficiently representative, and if the documents in the sample are treated in a consistent manner.

The 63 document sample here was selected by agreement of the parties. There is therefore no attack on the sample's capacity to represent the entire group of 1,776 documents. ⁷ The question before this court, then, is whether the release of the 19 documents in full, with no accounting for the original withholding, undermined the confidence one can have that the Department correctly invoked FOIA to shield information contained in the 1,713 documents not described in the Vaughn index. ⁸

The district court reviewed individually the State Department's exemption claims for each of the 44 documents. That court believed, however, that it had no similar role to play with respect to the 19 documents newly released in full. Given the importance in a sampling case that all items in the sample be treated consistently, we are not satisfied that the sample's reliability remained intact despite the elimination of 19 documents from court review. The 19 documents, judging by the State Department's full release of them, are indeed different from the 44. In contrast to the 44, the 19 contain information the State Department considered a threat to national security in 1985 and 1986, but not in 1987. While we agree with the district court that the full release of the 19 documents...