Hinton v. Department of Justice
| Decision Date | 14 April 1988 |
| Docket Number | No. 87-1390,87-1390 |
| Parties | , 25 Fed. R. Evid. Serv. 830 William H. HINTON v. The DEPARTMENT OF JUSTICE and the Federal Bureau of Investigation, Appellants. |
| Court | U.S. Court of Appeals — Third Circuit |
Edward S.G. Dennis, Jr., U.S. Atty., Philadelphia, Pa., Richard K. Willard, Asst. Atty. Gen., Leonard Schaitman, E. Roy Hawkens (argued), Attys., Appellate Staff Civ. Div., Dept. of Justice, Washington, D.C., for appellants.
Theodore M. Lieverman (argued), Philadelphia, Pa., for appellee.
Before SLOVITER and COWEN, Circuit Judges, and DEBEVOISE, District Judge. *
William Hinton filed this action more than seven years ago seeking the release of FBI documents pertaining to him under the Freedom of Information Act. Because the FBI withheld all or portions of a large number of the documents requested, the district court directed the FBI to prepare a Vaughn index, a detailed index correlating each withheld item with the statutory justification. The FBI appeals. We must determine as an initial matter whether we have jurisdiction over its appeal.
Hinton is an author and agricultural expert who has been particularly interested in the People's Republic of China throughout his career. He spent at least six years living in that country and returned home in 1953. He has since revisited on numerous occasions and authored many books and articles on China. The FBI has over the years conducted extensive investigation into Hinton's activities in China, in the Communist Party of Eastern Pennsylvania and Delaware from which he was expelled in 1964, and in various other groups.
In February 1980, Hinton wrote to the FBI invoking the terms of the Freedom of Information Act (FOIA), 5 U.S.C. Sec. 552 (1982), to request any and all records kept by the Bureau concerning him. In the course of the next year, he exhausted the agency process due him under FOIA without securing any documents. On February 23, 1981, Hinton brought this FOIA suit, stating that he needed the requested information for a forthcoming book.
The initial issue before the district court was not whether information had been improperly withheld, but whether the FBI should be ordered to expedite its processing of Hinton's request. Although the FBI was, as the court noted, "diligently handling plaintiff's request," it was faced with a substantial backlog of unfilled FOIA requests. Hinton v. FBI, 527 F.Supp. 223, 224 (E.D.Pa.1981). Hinton pointed to the urgency of his need for the material and sought summary judgment and immediate processing of his request. In November, 1981, the district court, attempting to balance Hinton's needs with the rights of other FOIA requesters awaiting action by the FBI, ordered a "timed, 'piecemeal' " processing of the documents. Id. at 225. Under its order, Hinton was to specify the priority of the various requested documents; the FBI was to carry out its screening in accordance with Hinton's priorities and release cleared documents at ninety-day intervals. Id. By August, 1985, the requested files had been processed, and the FBI had made the disclosures it deemed appropriate.
There are 10,462 pages of documents (excluding duplicates) responsive to Hinton's request. For FOIA purposes, pages of documents must be distinguished from documents. For example, in one case one document consisted of 100 pages. See Meeropol v. Meese, 790 F.2d 942, 958 (D.C.Cir.1986). Although on occasion the FBI has confused the terms in this case, it is clear that the relevant references throughout are to number of pages only.
According to a breakdown compiled by the FBI, the information sought by Hinton falls into six general categories: 51 percent of the records pertain to Hinton's activities in China between 1947 and 1953, and to possible perjury and violation of the Foreign Agents Registration Act; 15 percent of the records arose out of monitoring of Hinton's activities as a member of the Communist Party of Eastern Pennsylvania and Delaware between 1957 and his expulsion in 1964; 4 percent of the material pertains to the FBI's monitoring of Hinton's "participation in antiwar activities and his travels about giving pro-Communist Chinese speeches" between 1965 and 1967; about 10 percent of the material was gathered between 1970 and 1977 on "Hinton's positions and activities in the Revolutionary Union and the United States-China People's Friendship Association"; just over 4 percent of the material is composed of information derived from such public sources as newspapers, magazines and books; finally about 15 percent of the material is made up of " 'See' references wherein Hinton's name came to [FBI] attention incident to the investigation of an organization or another person." App. at 62-65.
Of these documents, 2,204 pages were released in their entirety, 4,916 pages were released in more or less heavily redacted form, and 3,342 pages were entirely withheld. Most redacted and withheld material was assertedly within three FOIA exemptions: exemption 1, protecting national security information, 5 U.S.C. Sec. 552(b)(1); exemption 7(C), protecting law-enforcement investigatory records the release of which would constitute an unwarranted invasion of personal privacy, id. Sec. 552(b)(7)(C); and exemption 7(D), protecting the identities of confidential law enforcement sources, id. Sec. 552(b)(7)(D).
Hinton then moved the court to order the FBI to prepare an index as first required in 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), which would provide detailed justifications for non-disclosure cross-referenced to specific segments of non-disclosed material. Id. at 826-28. The FBI argued, without submitting any affidavit or other factual support, that such an order "would not only be an extraordinary and unwarranted drain upon the resources of this agency and would impede the processing of other [FOIA] requests, but would also place undue burden upon the Court." App. at 98. The FBI suggested as an alternative that it be permitted to index only every 100th page, which in its view would give the court and Hinton a sufficient sampling of the agency's reasoning to allow them to make informed evaluations of the agency's compliance. After briefing on the issue, the district court on May 7, 1987 ordered the FBI to prepare a full Vaughn index.
The FBI appeals. It reads the district court's opinion as concluding that a modified Vaughn index such as it proposed is never permissible, and argues that such a conclusion is erroneous as a matter of law. Hinton has moved to dismiss the appeal for lack of appellate jurisdiction.
An order requiring a federal agency to prepare a Vaughn index is designed to balance an individual's right to disclosure of documents pursuant to FOIA's underlying purpose of opening government conduct to scrutiny by an informed, active citizenry, see, e.g., N.L.R.B. v. Robbins Tire & Rubber Co., 437 U.S. 214, 242, 98 S.Ct. 2311, 2326, 57 L.Ed.2d 159 (1978); Coastal States Gas Corp. v. Department of Energy, 644 F.2d 969, 974 (3d Cir.1981), with the agency's right to withhold documents that fall within FOIA's clearly-delineated exceptions to the general rule of disclosure, see 5 U.S.C. Sec. 552(b); EPA v. Mink, 410 U.S. 73, 79, 93 S.Ct. 827, 832, 35 L.Ed.2d 119 (1973). The district court has a statutory obligation to carry out a de novo review of agency claims of exemption, 5 U.S.C. Sec. 552(a)(4)(B), and we have described its task as being "to transform a potentially ineffective, inquisitorial proceeding against an agency that controls the information into a meaningful adversarial process." Coastal States, 644 F.2d at 984. Obviously, a court faced only with an agency's claim that the documents are exempt cannot carry out meaningful de novo review, and the requester's inability to challenge the agency's position "seriously distorts the traditional adversary nature of our legal system's form of dispute resolution." Vaughn, 484 F.2d at 824.
The statutory provision for discretionary in camera review of withheld materials by the trial judge, 5 U.S.C. Sec. 552(a)(4)(B); see H.R.Rep. No. 876, 93d Cong., 2d Sess. 7, reprinted in 1974 U.S. Code Cong. & Admin. News 6267, 6273, does not provide a complete solution, because such review may impose a significant burden on the court. The court is also deprived of the illumination to be derived from the requester's counsel. As the Vaughn court observed: "If the morass of material is so great that court review becomes impossible, there is a possibility that an agency could simply point to selected, clearly exempt portions, ignore disclosable sections and persuade the court that the entire mass is exempt." 484 F.2d at 826; see Coastal States, 644 F.2d at 984.
The Supreme Court first suggested in EPA v. Mink that the need for in camera review might be obviated by requiring the agency to justify its withholding by detailed affidavits or testimony. See 410 U.S. at 93, 93 S.Ct. at 839. In Vaughn, the Court of Appeals for the District of Columbia Circuit adopted this suggestion by requiring the government to subdivide each "document under consideration into manageable parts cross-referenced to the relevant portion of the Government's justification" for withholding. 484 F.2d at 827. Other courts, including this one, then adopted use of the Vaughn index, see, e.g., Ferri v. Bell, 645 F.2d 1213, 1222 & n. 11 (3d Cir.1981), modified, 671 F.2d 769 (3d Cir.1982); see generally R. Bouchard & J. Franklin, Guidebook to the Freedom of Information and Privacy Acts 93-94 (Supp.1985), and the Senate Judiciary Committee has expressed its support for the Vaughn approach, see S.Rep. No. 854, 93d Cong., 2d Sess. 14-15 (1974).
There is no set formula for a Vaughn index; subsequent decisions from the D.C. Circuit have...
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