Carpenter v. U.S. Dept. of Justice, 06-1489.

Citation470 F.3d 434
Decision Date12 December 2006
Docket NumberNo. 06-1489.,06-1489.
PartiesDaniel E. CARPENTER, Plaintiff, Appellant, v. UNITED STATES DEPARTMENT OF JUSTICE, United States Attorney for the District of Massachusetts, Defendants, Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)

Malik W. Ghachem for appellant.

Peter D. Keisler, Assistant Attorney General, with whom Michael Sullivan, United States Attorney, Leonard Schaitman and Steve Frank, Attorneys, Appellate Staff, Civil Division, Department of Justice, were on brief for appellees.

Before LIPEZ, Circuit Judge, CYR, Senior Circuit Judge, and SINGAL,* District Judge.

SINGAL, District Judge.

Plaintiff, Daniel Carpenter ("Carpenter"), filed a Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 (2006), request with the United States Attorney's Office ("USAO") for the District of Massachusetts requesting documents that a third party provided to the USAO in connection with the government's investigation and prosecution of Plaintiff's business activities. This appeal is taken from a district court order granting summary judgment for Defendants, the United States Department of Justice and the USAO for the District of Massachusetts ("the Government"), and thereby denying Carpenter's FOIA request. On appeal, Carpenter maintains that the requested materials are subject to disclosure because the public interest in disclosure outweighs any privacy interest maintained in the materials. We affirm the district court's order.

I. Background

By letter dated August 18, 2004, Carpenter filed a FOIA request with the USAO in Boston. Carpenter petitioned for materials that a third party, John Koresko, Esq. ("Koresko"), allegedly provided to the USAO in support of the Government's prosecution of Carpenter's business activities.1 According to Carpenter, he and Koresko are direct competitors in the field of welfare benefit plan design and administration. Carpenter alleges that Koresko provided information and materials to the USAO, on which his indictment was based, and that he needs the materials to ensure that Koresko did not provide false or misleading materials. The FOIA request, therefore, sought to compel disclosure of "[a]ll documents, correspondence, records or files provided by or obtained from [Koresko]" that related to Carpenter's businesses, welfare plans or criminal prosecution, or "reflect any conversation with [Koresko]."2

After several rounds of correspondence and because the Government failed to respond to the FOIA request within the twenty-day statutory time limit, 5 U.S.C. § 552(a)(6)(A), Carpenter filed this FOIA suit on January 28, 2005. The Government responded to both the FOIA request and the lawsuit by declining to either confirm or deny the existence of the requested materials (a "Glomar response"3) and asserting that any such records would be exempt from disclosure.4 Carpenter moved for summary judgment on June 17, 2005 and the Government cross-moved for summary judgment on July 1, 2005.5

After conducting an in camera review, the district court denied Carpenter's motion for summary judgment and granted the Government's cross-motion for summary judgment via an Endorsement Order.6 The district court held that the materials at issue were exempt from disclosure under Exemption 7(C) of the FOIA, which exempts from disclosure "records or information compiled for law enforcement purposes but only to the extent that" such information "could reasonably be expected to constitute an unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(7)(C).

Carpenter filed a timely motion for reconsideration, arguing that the court had erred in relying upon Quinon v. FBI, 86 F.3d 1222 (D.C.Cir.1996), in reaching its decision. On December 12, 2006, the district court denied Plaintiff's motion. This appeal followed.

Our review of the district court's determination that the materials are exempt from disclosure is de novo. Church of Scientology Int'l v. U.S. Dep't of Justice, 30 F.3d 224, 228 (1st Cir.1994). Our discussion begins with a general review of the FOIA standards and its exemptions.

II. Discussion

The FOIA was intended to expose the operations of federal agencies "to the light of public scrutiny." Dep't of the Air Force v. Rose, 425 U.S. 352, 372, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976); Providence Journal Co. v. U.S. Dep't of the Army, 981 F.2d 552, 556 (1st Cir.1992) (noting that the FOIA seeks to prevent "the development and application of a body of 'secret law'"). The basic policy of full agency disclosure within the FOIA furthers the right of citizens to know "what their government is up to," U.S. Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 773, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989) (quoting EPA v. Mink, 410 U.S. 73, 105, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973) (Douglas, J., dissenting)), and promotes an informed citizenry, which is vital to democracy. NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242, 98 S.Ct. 2311, 57 L.Ed.2d 159 (1978). Thus, in response to a FOIA request, a governmental agency must make promptly available to any person those materials in the possession of the agency, unless the agency can establish that the materials fall within one of nine exemptions. 5 U.S.C. § 552(a)(3).

To effectuate the goals of the FOIA while safeguarding the efficient administration of the government, the FOIA provides that certain categories of materials are exempted from the general requirements of disclosure. Id. § 552(b); Providence Journal Co., 981 F.2d at 556. The nine FOIA exemptions are to be construed narrowly, with any doubts resolved in favor of disclosure. U.S. Dep't of Justice v. Julian, 486 U.S. 1, 8, 108 S.Ct. 1606, 100 L.Ed.2d 1 (1988); Providence Journal Co., 981 F.2d at 557. The government bears the burden of proving that withheld materials fall within one of the statutory exemptions, 5 U.S.C. § 552(a)(4)(B); Orion Research, Inc. v. EPA, 615 F.2d 551, 553 (1st Cir.1980), and district courts are required to make de novo determinations as to the validity of the asserted exemptions. 5 U.S.C. § 552(a)(4)(B); see also Reporters Comm., 489 U.S. at 755, 109 S.Ct. 1468; Providence Journal Co., 981 F.2d at 556-57.

Exemption 7(C) formed the sole basis for the district court's determination that the requested materials need not be disclosed.

This exemption permits an agency to withhold records or information compiled for law enforcement purposes,7 "but only to the extent that the production of such [materials] ... could reasonably be expected to constitute an unwarranted invasion of personal privacy." § 552(b)(7)(C). The application of Exemption 7(C) requires the court to balance the privacy interest at stake in revealing the materials with the public interest in their release. Reporters Comm., 489 U.S. at 762, 109 S.Ct. 1468; Maynard v. CIA, 986 F.2d 547, 566 (1st Cir.1993).

A. The Privacy Interest

The privacy interest protected by Exemption 7(C) is not a "cramped" or limited notion of personal privacy. See Reporters Comm., 489 U.S. at 762-63, 109 S.Ct. 1468. Instead, Exemption 7(C) protects a broad notion of personal privacy, including an individual's interest in avoiding disclosure of personal matters. Id. at 762, 109 S.Ct. 1468. This notion of privacy "encompass[es] the individual's control of information concerning his or her person," and "when, how, and to what extent information about them is communicated to others." Id. at 789, 764, 109 S.Ct. 1468 n. 16. The individual, and not the agency in possession of the records, controls the privacy interest. See Reporters Comm., 489 U.S. at 763-65, 109 S.Ct. 1468; Sherman v. U.S. Dep't of the Army, 244 F.3d 357, 363 (5th Cir.2001) (providing that the individual controls the privacy interest at stake in FOIA exemptions).

Furthermore, where the provider of the information or records is a private individual, "the privacy interest ... is at its apex." Reporters Comm., 489 U.S. at 780, 109 S.Ct. 1468; Nat'l Archives & Records Admin. v. Favish, 541 U.S. 157, 166, 124 S.Ct. 1570, 158 L.Ed.2d 319 (2004). In Reporters Committee, the Supreme Court pointed to the provisions of the FOIA allowing the redaction of an individual's identifying information and the segregation of exempt portions of the record in concluding that the "disclosure of records regarding private citizens, identifiable by name, is not what the framers of the FOIA had in mind."8 489 U.S. at 765-66, 109 S.Ct. 1468. The central purpose of the FOIA is to reveal government action, not to expose the actions of private third parties and their participation in law enforcement to the public. See id. at 774, 109 S.Ct. 1468 ("[T]he FOIA's central purpose is to ensure that the Government's activities be opened to the sharp eye of public scrutiny, not that information about private citizens that happens to be in the warehouse of the Government be so disclosed."). With this general understanding of the privacy interest protected by Exemption 7(C), we turn to the facts at hand.

Carpenter brought this FOIA action to compel disclosure of information or records provided by or concerning Koresko in connection with the Government's investigation and prosecution of Carpenter's business activities. We agree with the district court that a person need not be the subject of the investigation to have a substantial privacy interest in maintaining the secrecy of his involvement with the investigation. See Maynard, 986 F.2d at 566; Fitzgibbon v. CIA, 911 F.2d 755, 767 (D.C.Cir.1990). Rather, precedents suggest that individuals maintain a privacy interest under the FOIA in their identity as government informants and in not being positively associated with a criminal matter. See, e.g., Maynard, 986 F.2d at 566; Fitzgibbon, 911 F.2d at 767.

Although Koresko is not, strictly speaking, a government informant, his privacy interest is analogous to that of an informant. This Court has long protected the identities of...

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