Davis v. Department of Justice

• Decision Date: 22 August 2006
• Docket Number: No. 04-5406.,04-5406.
• Citation: 460 F.3d 92
• Parties: John DAVIS, Appellant v. DEPARTMENT OF JUSTICE, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

460 F.3d 92

John DAVIS, Appellant v. DEPARTMENT OF JUSTICE, Appellee.

No. 04-5406.

United States Court of Appeals, District of Columbia Circuit.

Argued February 13, 2006.

Decided August 22, 2006.

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Appeal from the United States District Court for the District of Columbia (No. 88cv00130).

James H. Lesar argued the cause and filed the briefs for appellant.

Heather Graham-Oliver, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief were Kenneth L. Wainstein, U.S. Attorney, and Michael J. Ryan, Assistant U.S. Attorney. R. Craig Lawrence, Assistant U.S. Attorney, entered an appearance.

Before: RANDOLPH and GARLAND, Circuit Judges, and WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge GARLAND.

GARLAND, Circuit Judge.

This case involves four audiotapes recorded more than twenty-five years ago during an FBI corruption investigation in Louisiana. The plaintiff, an author, seeks release of the tapes under the Freedom of Information Act (FOIA), 5 U.S.C. § 552. There are two speakers on the tapes, one a "prominent individual" who was a subject of the FBI's investigation, and the other an "undercover informant" in that investigation. The only question on this appeal is whether the FBI has undertaken reasonable steps to determine whether the speakers are now dead, in which event the privacy interests weighing against release would be diminished.

The FBI has not been able to determine whether either speaker is dead or alive. It says it cannot determine whether the speakers are over 100 years old (and thus presumed dead under FBI practice), because neither mentioned his birth date during the conversations that were surreptitiously recorded. It says it cannot determine whether the speakers are dead by referring to a Social Security database, because neither announced his social security number during the conversations. And it declines to search its own files for the speakers' birth dates or social security numbers, because that is not its practice. The Bureau does not appear to have contemplated other ways of determining whether the speakers are dead, such as Googling them.¹

We conclude that the FBI has not "made a reasonable effort to ascertain" whether the two speakers, on whose behalf it has invoked a privacy exemption from FOIA, are living or dead. Schrecker v. Dep't of Justice, 349 F.3d 657, 662 (D.C.Cir.2003) ("Schrecker II"). As a consequence, there is a serious "`question whether the Bureau's invocation of the privacy interest represented a reasonable response to the FOIA request.'" Id. (quoting Summers v. Dep't of Justice, 140 F.3d 1077, 1085 (D.C.Cir.1998) (Williams, J., concurring)). We therefore reverse the district court's dismissal of the plaintiff's FOIA complaint and remand for further proceedings.

I

This is the fourth time we have considered an appeal arising out of the FOIA dispute between Davis and the FBI. In 1986, Davis submitted a FOIA request for all audiotapes recorded during an FBI criminal investigation known as "BRILAB." That investigation, conducted during 1979-80, concerned bribery and racketeering activities among organized crime figures, politicians, and labor unions in Louisiana. The investigation led to the indictment of five individuals, two of whom were ultimately convicted—including reputed Mafia boss Carlos Marcello.² Portions of more than 130 BRILAB tape recordings were played at the defendants' 1981 trial. Davis sought the tapes as background for a book he subsequently published in 1989. See JOHN H. DAVIS, MAFIA KINGFISH: CARLOS MARCELLO AND THE ASSASSINATION OF JOHN F. KENNEDY (McGraw-Hill 1989).

After the government refused to release the tapes, Davis brought suit pursuant to FOIA. See 5 U.S.C. § 552(a)(4)(B). The government contended that each tape was properly withheld under one or more statutory exemptions, but the district court concluded that material "unconditionally revealed in open court . . . enter[s] the public domain beyond recall for all time" and therefore cannot be withheld under FOIA. Davis v. Dep't of Justice, No. 88-0130, Order at 3 (D.D.C. May 6, 1991). Although the government argued that it was no longer possible to determine which of a "play list" of 163 taped excerpts had actually been played in the courtroom, the district court held that the government bore the burden of showing that the tapes had not entered the public record and must "suffer the consequences of the impasse." Id. at 4. The court ordered release of all the tapes.

On appeal, this court reversed. See Davis v. Dep't of Justice, 968 F.2d 1276, 1282 (D.C.Cir.1992) ("Davis I"). We held that, while the ultimate burden of persuasion remains on the government, "a party who asserts that material is publicly available carries the burden of production on that issue." Davis I, 968 F.2d at 1279 (emphasis omitted). We then remanded to give Davis an opportunity to show that the tapes he sought, or portions of them, were played at the trial. Id. at 1282.

In an effort to meet his burden under Davis I, Davis produced docket entries and transcripts from the Marcello trial. In response, the FBI released 157 of the 163 tapes and said it would have released another tape but could not find it. The FBI continued to withhold the five remaining tapes on the basis of FOIA Exemption 7(C), which permits an agency to withhold otherwise disclosable records if they were "compiled for law enforcement purposes" and their release "could reasonably be expected to constitute an unwarranted invasion of personal privacy." See 5 U.S.C. § 552(b)(7)(C). The district court sustained the FBI's actions. See Davis v. Dep't of Justice, No. 88-0130, Order at 15 (D.D.C. Oct. 16, 1997).

Davis appealed a second time. In Davis II, we upheld the district court's determination that the FBI's search for the missing tape was adequate. See Davis v. Dep't of Justice, 1998 WL 545422, at *1 (D.C.Cir. July 31, 1998) ("Davis II"). We again remanded, however, this time for the court to determine "whether any of the five tapes withheld in their entirety . . . contains material that can be segregated and disclosed without unwarrantably impinging upon anyone's privacy." Id.

On remand, the FBI determined that it could release one of the five tapes because the principal speaker on the tape had died. But the Bureau concluded that the remaining four tapes were wholly subject to Exemption 7(C), because it could not determine whether the speakers on those tapes were living or dead. See Decl. of Scott A. Hodes ¶¶ 5, 7 (Nov. 24, 1998). Citing an FBI affidavit, see id. ¶ 7, the district court held that the "defendant has made adequate efforts to establish that the speakers on these tapes are not deceased." Davis v. Dep't of Justice, No. 88-0130, Order at 2 (D.D.C. Sept. 15, 2000).

Once again, Davis appealed. In Davis III, we summarily reversed the district court and again remanded the case. See Davis v. Dep't of Justice, 2001 WL 1488882, at *1 (D.C.Cir. Oct.17, 2001) ("Davis III"). "The FBI's affidavit," we held, was "insufficient to determine the extent of the Bureau's efforts to ascertain whether putative beneficiaries of Exemption 7(C) are alive or dead." Id. As a consequence, we were "unable to say `whether the Government reasonably balanced the interests in personal privacy against the public interest in release of the information at issue.'" Id. (quoting Schrecker v. Dep't of Justice, 254 F.3d 162, 167 (D.C.Cir.2001) ("Schrecker I")). Citing our recent opinion in Schrecker v. Department of Justice, we remanded so that "the FBI may document what sources it consulted, and the district court can decide in the first instance whether the government `did all it should have done, and whether it may withhold the disputed information pursuant to Exemption 7(C).'" Id. (quoting Schrecker I, 254 F.3d at 167).

Following our remand order, the FBI filed two more affidavits, spelling out the steps it took to determine whether the speakers were dead or alive, and declaring that those steps did not establish that the speakers on the tapes were deceased. See Second Decl. of Scott A. Hodes (Feb. 26, 2002); Third Decl. of Scott A. Hodes (July 11, 2002). We detail those steps in Part II.A below. The FBI's filings make clear that there are only "two speakers on the audiotapes at issue." Def.'s Mot. for Recons. at 3 (citing Fourth Decl. of Scott A. Hodes ¶ 4 (Aug. 7, 2002)). According to the government, the four tapes come from the FBI's undercover investigation of a "prominent individual," and the speakers are that "prominent individual and the undercover informant." Appellee's Br. 11 (citing affidavits).

In July 2002, unsatisfied with the government's efforts, the district court ordered the FBI to advise each of the two speakers, "by first class mail[,] . . . of defendant's obligation pursuant to this Order to [release the tapes] unless the speaker objects thereto in writing within 30 days." Davis v. Dep't of Justice, No. 88-0130, Order at 1 (D.D.C. July 23, 2002). More than a year later, after this court issued a subsequent opinion in the Schrecker case, see Schrecker II, 349 F.3d at 657, the government asked the district court to reconsider that order. On August 31, 2004, the court granted the motion to reconsider, "relieve[d] the government from undertaking the additional tasks mandated" in its July 2002 order, and granted summary judgment in favor of the FBI. Davis v. Dep't of Justice, No. 88-0130, Order at 1 (D.D.C. Aug 31, 2004).

Davis then filed his fourth notice of appeal, challenging both the district court's grant of summary judgment dismissing his FOIA complaint, and an earlier order denying his motion for an award of attorney's fees. We consider the former in Part II and the latter in Part III. We "review de novo a decision granting summary judgment to an agency claiming to have complied with FOIA." Schrecker II, 349 F.3d at 661-62. We also review de novo a district court's...