Donovan v. F.B.I.

• Decision Date: 24 November 1986
• Docket Number: 1575,D,Nos. 1494,s. 1494
• Citation: 806 F.2d 55
• Court: U.S. Court of Appeals — Second Circuit
• Parties: Michael DONOVAN, William Ford, James Kazel, and Judy Keogh, Plaintiffs-Appellants, Cross-Appellees, v. FEDERAL BUREAU OF INVESTIGATION, Defendant-Appellee, Cross-Appellant. ockets 86-6052, 86-6058.

Page 55

806 F.2d 55

Michael DONOVAN, William Ford, James Kazel, and Judy Keogh Plaintiffs-Appellants, Cross-Appellees, v. FEDERAL BUREAU OF INVESTIGATION, Defendant-Appellee, Cross-Appellant.

Nos. 1494, 1575, Dockets 86-6052, 86-6058.

United States Court of Appeals Second Circuit.

Argued Aug. 11, 1986.

Decided Nov. 24, 1986.

Eric M. Freedman, New York City (Robert S. Smith, Jennifer B. Cohen), Paul, Weiss, Rivkind, Wharton & Garrison, Michael C. Posner, New York City (Diane Orentlicher), The Lawyers Committee for International Human Rights, for plaintiff-appellants, cross-appellees.

Steven E. Obus, New York City, Asst. U.S. Atty. for the S.D. of N.Y. (Rudolf W. Giuliani, U.S. Atty., for the S.D. of N.Y., Gerald T. Ford, Asst. U.S. Atty. for the S.D. of New York), for defendant-appellee, cross-appellant.

Before PRATT and MINER, Circuit Judges, and RE, Chief Judge, United States Court of International Trade, sitting by designation pursuant to 28 U.S.C. Sec. 293(a) (1982).

RE, Chief Judge:

Plaintiffs-appellants appeal from a judgment of the United States District Court for the Southern District of New York, which denied their motion for summary judgment under the Freedom of Information Act (FOIA), 5 U.S.C. Sec. 552, and, after an in camera review, withheld disclosure of 15 of 23 documents. Defendant-appellee, the Federal Bureau of Investigation, has cross-appealed as to 6 of the documents or parts of documents which were ordered disclosed.

Two questions are presented on this appeal: first, whether the District Court abused its discretion by having reviewed the documents in camera, and, second, whether the District Court properly ordered the disclosure of all or portions of documents 41, 84, 85, 86, 222, and 227.

This Court affirms the judgment of the District Court insofar as it pertains to plaintiffs' appeal, and grants the defendant judgment on the cross-appeal, modified so as to exempt from disclosure, pursuant to Exemption 7D of the FOIA, the contested portions of documents 222, 227, and 41.

Procedural History

On July 20, 1982, plaintiffs, the families of four American churchwomen who were murdered in El Salvador, commenced this action to compel disclosure of all government documents pertaining to the FBI's investigation of the murders. The FBI responded by asserting that Exemption 7A of the FOIA, 5 U.S.C. Sec. 552(b)(7)(A), exempted from disclosure the entire 10-volume, 2912-page file.

On August 12, 1983, the District Court granted plaintiffs' motion for partial summary judgment, and ordered disclosure of most of the documents. See Donovan v. FBI, 579 F.Supp. 1111 (S.D.N.Y.1983). Upon the government's motion for reconsideration, however, the District Court, after an in camera review, held that Exemption 7A protected all but 162 of the requested documents. As to the documents held to be exempt from disclosure, the court held that the FBI would be required to provide a so-called Vaughn affidavit or index to explain its contention that the documents were exempt from disclosure. See Donovan v. FBI, 579 F.Supp. at 1125. Both parties appealed, and, while the appeals were pending, the government of El Salvador tried and convicted five members of its National Guard for the murders of the churchwomen. Hence, the FBI notified this Court that it would withdraw its Exemption 7A claim, and that it would reprocess the documents. On August 4, 1984, this Court dismissed the appeals as moot, and remanded the case to the District Court. See Donovan v. FBI, 751 F.2d 368 (2d Cir.1984).

Upon remand, the FBI released most of the file, but asserted various exemptions for some of the documents. On February 8, 1984, plaintiffs requested a Vaughn index for 34 documents that were withheld in their entirety, 72 documents withheld in part, 58 State Department documents withheld in part, and an additional 37 documents if they were relevant to the murders. Accordingly, the government provided a 70-page affidavit prepared by FBI agent Martell (the Martell affidavit), together with additional declarations from the particular agencies involved. On July 31, 1985, the plaintiffs moved for an order to direct the government to provide another, more detailed, Vaughn affidavit. This motion was limited to 23 documents. The government opposed this motion, and contended that, since the Martell affidavit satisfied its burden under the FOIA, summary judgment should be granted in its favor.

On these cross-motions, the District Court held that the affidavit failed to satisfy the agency's responsibility under the FOIA. Donovan v. FBI, 625 F.Supp. 808, 812 (S.D.N.Y.1986). Instead of ordering the government to provide another affidavit, the court itself undertook to review the documents in camera. After the in camera review, the court upheld the withholding of 15 of the documents, and ordered the disclosure of the remaining eight documents.

On January 17, 1986 the government moved to reargue the District Court's order as to six documents, referred to as documents 41, 84, 85, 86, 222, and 227. The District Court denied the motion, and ordered the release or disclosure of additional portions of document 86. See Donovan v. FBI, 633 F.Supp. 35 (S.D.N.Y.1986). Thereafter, the government appealed the order directing disclosure of certain deletions in documents 41, 84, 85, 86, 222, and 227, and plaintiffs appealed the judgment exempting the 15 documents from disclosure.

Discussion

In enacting the Freedom of Information Act, codified as part of the Administrative Procedure Act, Congress expressed the strong policy which favors the disclosure to the public of information in the possession of federal agencies. See, e.g., CIA v. Sims, 471 U.S. 159, 105 S.Ct. 1881, 1886, 85 L.Ed.2d 173 (1985); Chrysler Corp. v. Brown, 441 U.S. 281, 285, 99 S.Ct. 1705, 1709, 60 L.Ed.2d 208 (1979); Brown v. FBI, 658 F.2d 71, 73, (2d Cir.1981). The legislation has been described as "an attempt to meet the demand for open government while preserving workable confidentiality in governmental decisionmaking." Chrysler Corp. v. Brown, 441 U.S. at 292, 99 S.Ct. at 1713.

The FOIA provides that any person has a right of access to federal agency records, unless the records are protected from disclosure by one of the Act's nine exemptions. An agency that seeks to withhold information must show that its refusal to disclose falls within one of the nine specific exemptions. 5 U.S.C. Sec. 552(b)(2)-(9). Furthermore, the FOIA provides for de novo review of agency claims of exemptions, and the burden is upon the agency to justify nondisclosure. Id. Sec. 552(a)(4)(B). It is also clear that the exemptions are to be interpreted so as to effectuate the congressional policy which favors disclosure. See Ray v. Turner, 587 F.2d 1187, 1200 (D.C.Cir.1977) (Wright, C.J., concurring); Getman v. NLRB, 450 F.2d 670, 673-74 (D.C.Cir.1971). While favoring disclosure, courts must nevertheless give effect to the specific exemptions set forth in the FOIA. See 9 to 5 Organization for Women Office Workers v. Board of Governors, 721 F.2d 1, 11 (1st Cir.1983).

Since, in the usual case, it is only the agency that knows the precise content of the requested documents, the party seeking disclosure can only speculate as to their contents. See Brown v. FBI, 658 F.2d at 73-74; Vaughn v. Rosen, 484 F.2d 820, 822 (D.C.Cir.1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974). In order to compensate for this disadvantage, the "courts have required agencies to itemize and index the documents requested, segregate their disclosable and non-disclosable portions, and correlate each non-disclosable portion with the FOIA provision which exempts it from disclosure." Brown v. FBI, 658 F.2d at 74; See Vaughn v. Rosen, 484 F.2d at 827.

In Vaughn v. Rosen, 484 F.2d 820 (D.C.Cir.1973) from which the Vaughn index or affidavit derives its name, the plaintiff was denied access to certain reports which pertained to the personnel policies of several federal agencies. The plaintiff moved for disclosure of the documents pursuant to the FOIA, 5 U.S.C. Sec. 552(a)(3)(1970), and the defendant moved to dismiss on the ground that the documents were exempt from disclosure. The defendant contended that the information sought was exempt from disclosure because it "(1) related solely to the internal rules and practices of an agency; (2) constituted inter-agency or intra-agency memoranda or letters ... and (3) was composed of personal and medical files, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." 484 F.2d at 822-23 (footnotes omitted). The trial court granted the defendant's motion to dismiss. On appeal, the Court of Appeals for the District of Columbia Circuit remanded the case, and held that the record was insufficient to permit a determination as to whether the documents were subject to disclosure under the FOIA.

The court of appeals explained the necessity for an agency to supply the courts with a detailed index which separates disclosable from exempt material, and which provides an explanation and cross-reference to specific exemptions. Id. at 824. The court explained that the index would serve to: "(1) assure that a party's right to information is not submerged beneath governmental obfuscation and mischaracterization, and (2) permit the court system effectively and efficiently to evaluate the factual nature of disputed information." Id. at 826.

Although the requirements for an index and explanation have been widely recognized as useful tools, it must be emphasized that these requirements "are not ends in themselves," but are merely methods or procedures that assist the trial court in its do novo review. Brown v. FBI, 658 F.2d 71, 74 (2d Cir.1981).

In this case, plaintiffs maintain that they were entitled to receive a more detailed index of the requested documents, and that the District Court should not have reviewed the documents in camera. On this appeal, the...