Department of Justice, In re

• Decision Date: 05 August 1993
• Docket Number: Nos. 91-2080,91-2164,s. 91-2080
• Parties: In re DEPARTMENT OF JUSTICE, Petitioner. Barbara Ann CRANCER, Appellee, v. UNITED STATES DEPARTMENT OF JUSTICE, Appellant. Eighth Circuit
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1302

999 F.2d 1302

62 USLW 2105

In re DEPARTMENT OF JUSTICE, Petitioner Barbara Ann CRANCER, Appellee, v. UNITED STATES DEPARTMENT OF JUSTICE, Appellant.

Nos. 91-2080, 91-2164.

United States Court of Appeals,

Eighth Circuit.

Submitted May 11, 1992.

Decided Aug. 5, 1993.

Scott R. McIntosh, Washington, DC, argued (Stuart M. Gerson, Stephen B. Higgins, Leonard Schaitman and Scott R. McIntosh, on the petition for rehearing), for appellant.

Richard E. Greenberg, Clayton, MO, argued, for appellee.

Before RICHARD S. ARNOLD, Chief Judge, McMILLIAN, JOHN R. GIBSON, FAGG, BOWMAN, WOLLMAN, MAGILL, BEAM, LOKEN, and HANSEN, Circuit Judges, En Banc.

WOLLMAN, Circuit Judge.

In In re Department of Justice, 950 F.2d 530 (8th Cir.1991) (Crancer I ), a panel of this court upheld the district court's order requiring the government to provide a Vaughn ¹ index after the government had invoked Exemption 7(A) of the Freedom of Information Act, 5 U.S.C. § 552(b)(7)(A) (1988). We granted the government's suggestion for rehearing en banc and vacated the panel's decision. We now issue a writ of mandamus, vacate the challenged order, and remand the case to the district court for further proceedings.

I.

In 1987, Barbara Ann Crancer filed a Freedom of Information Act (FOIA) request with the Department of Justice. Crancer sought the release of certain information uncovered during the investigation conducted by the Federal Bureau of Investigation into the disappearance of her father, Jimmy Hoffa, the former president of the International Brotherhood of Teamsters. The FBI's investigation has resulted in the accumulation of more than 13,800 pages of records relating to Hoffa's disappearance.

The Department denied Crancer's request on the basis of Exemption 7(A), contending that the Hoffa FBI file contains "records or information compiled for law enforcement purposes," the release of which "could reasonably be expected to interfere with enforcement proceedings." 5 U.S.C. § 552(b)(7)(A).

After exhausting her administrative remedies, Crancer brought suit to compel the Department to provide her with the documents she had requested. During the pendency of her suit, Crancer filed a second, broader request seeking any and all materials relating to the FBI's investigation into Hoffa's disappearance. After this request was administratively denied by the Department, also on the basis of Exemption 7(A), Crancer amended her complaint to include her second request.

The Department moved for summary judgment on the basis of the claimed exemption. The district court ordered the Department to provide Crancer with a Vaughn index so that she could effectively oppose the government's pending motion. The court's order required the Department to produce an "itemized, indexed inventory of every agency record or portion thereof responsive to plaintiff's FOIA request," together with a "detailed justification statement covering each refusal to release [an] agency record[ ] or portions thereof." D.Ct. Order of July 27, 1990, at 1. The Department asked the court to reconsider its order directing the production of the Vaughn index. This request was denied. The Department then requested that the district court modify its earlier order and allow the Department to provide a categorical description of the documents contained in the Hoffa FBI file. The Department submitted a list of nine categories of documents and an affidavit describing the potential interference with enforcement proceedings that would result if it were required to compile a Vaughn index. The district court denied this request and ordered the Department to submit the Vaughn index to a magistrate judge for in camera review.

In lieu of submitting a Vaughn index, the Department asked the magistrate judge to review the actual documents in camera. The magistrate judge denied this request, but extended the time period in which the Vaughn index was to be submitted. The Department then asked the district court to The Department then sought relief from this court, asserting jurisdiction under the collateral order doctrine, Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), or the All Writs Act, 28 U.S.C. § 1651(b).

                reconsider the magistrate judge's order or, in the alternative, to certify the matter for interlocutory appeal.   These requests were also denied
                

In Crancer I, the panel asserted jurisdiction under the All Writs Act and upheld the district court's order requiring the preparation of a Vaughn index. The panel first determined that the Department could not be required to provide a specific factual showing and explanation describing why each document is exempt. It went on to hold, however, that the Department could be required to make a specific factual showing to demonstrate why each document belongs in a certain category, along with an explanation describing why the category itself is exempt from disclosure.

II.

We first examine whether, and the basis upon which, we have jurisdiction to hear this case.

We possess discretionary writ-issuing authority under the All Writs Act, 28 U.S.C. § 1651(b). As noted by the panel in Crancer I, mandamus is "available only in those exceptional circumstances amounting to a judicial usurpation of power." In re Ford Motor Co., 751 F.2d 274, 275 (8th Cir.1984).

The panel determined that:

[The Department's] argument is a novel one and has not been directly addressed by any court. If [the Department] is correct in its contention that the district court lacked authority to order a Vaughn index, then a writ would be the proper remedy. Because the issue of whether the writ is available is intertwined with the merits of this interlocutory matter, we must decide whether the district court had authority to require a Vaughn-type index in these circumstances.

Crancer I, 950 F.2d at 532 (citation omitted). We agree with the panel's analysis and believe that this case presents a unique situation. Thus, we conclude that we have jurisdiction to decide the question whether the district court's order directing the Department to produce a Vaughn index in the face of the Department's invocation of Exemption 7(A) constituted a judicial usurpation of power.

III.

"The basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed." NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242, 98 S.Ct. 2311, 2327, 57 L.Ed.2d 159 (1978). Consistent with this policy of broad disclosure, the government is required to release all requested information upon the demand of any member of the public. Id. at 221, 98 S.Ct. at 2316; see also Curran v. Department of Justice, 813 F.2d 473 (1st Cir.1987); Irons v. FBI, 811 F.2d 681, 685 (1st Cir.1987). Congress fashioned certain explicit exemptions from disclosure, however, in order to preserve vital government policies and, in some cases, to protect individuals. See 5 U.S.C. § 552(b)(1)-)9; see also Robbins Tire, 437 U.S. at 220-21, 98 S.Ct. at 2316 ("Congress carefully structured nine exemptions from the otherwise mandatory disclosure requirements in order to protect specified confidentiality and privacy interests.").

Once information is requested under FOIA, therefore, the government must provide the information unless it determines that a specific exemption applies. Likewise, the government bears the burden of demonstrating that the claimed exemption applies. 5 U.S.C. § 552(a)(4)(B). The district court must determine de novo whether the government has satisfied its burden. Id.

In the face of a claimed statutory exemption, district courts have sometimes required the government to provide a Vaughn index. "This indexing procedure is perceived as necessary to permit the district court and the requesting party to evaluate the [government's] decision to withhold records and to ensure its compliance with the mandates of the FOIA." Barney v. IRS, 618 F.2d 1268, 1272 (8th Cir.1980) (per curiam).

A Vaughn index provides a specific factual description of each document sought by the FOIA requester. Specifically, such an index includes a general description of each document's contents, including information about the document's creation, such as date, time, and place. Crancer I, 950 F.2d at 533. "For each document, the exemption claimed by the government is identified, and an explanation as to why the exemption applies to the document in question is provided." Id.; see also Barney, 618 F.2d at 1272.

Exemption 7(A) of FOIA provides that the act "does not apply to matters that are--* * * (7) records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information (A) could reasonably be expected to interfere with enforcement proceedings[.]" 5 U.S.C. § 552(b)(7)(A). The government contends that the courts have interpreted this exemption differently from other FOIA exemptions, with the result that a district court may not order the production of a Vaughn index when Exemption 7(A) is invoked.

In NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 98 S.Ct. 2311, 57 L.Ed.2d 159 (1978), the Supreme Court addressed the burden that the government must bear when asserting Exemption 7(A). In that case, the FOIA requester, an employer, sought from the National Labor Relations Board all statements made by potential witnesses prior to a Board hearing on the employer's unfair labor practices. Id. at 216, 98 S.Ct. at 2314. On appeal, the employer argued that the district court had erred by not requiring the government to make an individualized showing that each withheld document fit within the limits of Exemption 7(A). The Supreme Court rejected this argument, interpreting Exemption 7(A) of FOIA to require the government to prove that "with respect to particular kinds of enforcement proceedings, disclosure of...