Ingle v. Department of Justice

• Decision Date: 17 January 1983
• Docket Number: 81-5441,Nos. 81-5440,s. 81-5440
• Citation: 698 F.2d 259
• Parties: Joseph INGLE, et al., Plaintiffs-Appellees, Cross-Appellants, v. DEPARTMENT OF JUSTICE, Defendant-Appellant, Cross-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 259

698 F.2d 259

Joseph INGLE, et al., Plaintiffs-Appellees, Cross-Appellants, v. DEPARTMENT OF JUSTICE, Defendant-Appellant, Cross-Appellee.

Nos. 81-5440, 81-5441.

United States Court of Appeals Sixth Circuit.

Argued Oct. 19, 1982.

Decided Jan. 17, 1983.

Marleigh D. Dover (argued), Leonard Schaitman, U.S. Dept. of Justice, Appellate Staff-Civil Div., Washington, D.C., for defendant-appellant, cross-appellee.

Larry D. Woods, Woods, Bryan, Woods & Watson, William J. Marett, Jr. (argued), Nashville, Tenn., for plaintiffs-appellees, cross-appellants.

Before KENNEDY and KRUPANSKY, Circuit Judges, and CECIL, ^* Senior Circuit Judge.

KRUPANSKY, Circuit Judge.

The present action involves cross-appeals by the plaintiff Joseph B. Ingle (Ingle) and the defendant Department of Justice (Justice) from an order of the United States District Court for the Middle District of Tennessee which held, following an in camera inspection, that various specific statutory exemptions asserted by Justice to the disclosure of portions of 26 pages of documents to Ingle pursuant to a Freedom of Information Act (FOIA), 5 U.S.C. Sec. 552, request were properly invoked, but that Justice's characterization of two additional documents incorporating 28 pages as beyond the scope of Ingle's request was improper. Ingle appeals from that portion of the order upholding the statutory exemptions. Justice however does not directly contend that the district judge erred in reclassifying the two documents as being within the scope of the request; rather, the government seeks a remand to permit it to delete those portions of the two additional documents which it contends are exempt. Ingle, moreover, seeks attorney fees as a prevailing party.

The salient facts of this action are straight-forward. Ingle is the director of the Southern Coalition on Jails and Prisons, Inc. (SCJP), an organization that describes itself as "a group of ministers and lay people carrying on a ministry to visit prisoners and proclaim liberty to captives." On November 1, 1978, Ingle made a FOIA demand upon Justice for "any and all reports on myself and any organization I am a member of (the Committee of Southern Churchmen, Southern Prison Ministry, The Southern Coalition on Jails and Prisons)."

Justice responded by stating that 366 pages of documents were located, of which number 325 pages were withheld in their entirety, with the remaining 41 pages supplied with deletions made pursuant to various exemptions. Ingle perfected an administrative appeal which was denied.

Ingle thereupon filed an action in district court seeking, inter alia, an order to produce all of the documents in their entirety, an expedited hearing and an award of attorney fees. Justice filed with the Court three affidavits of FBI Special Agents who had reviewed the documents and a motion for summary judgment asserting that the affidavits sufficiently demonstrated compliance, as a matter of fact, with exemptions (b)(1), (b)(7)(C) and (b)(7)(D) of the FOIA, 5 U.S.C. Sec. 552.

On January 16, 1981, the district judge ruled that the statute required in camera inspection of all documents to determine if the exemptions were proper. The district court further stated that because the affidavits were "conclusory," the agency's judgment was not entitled to substantial weight and held that "the documents must be submitted to this Court in their entirety for in camera inspection." It must be noted that neither party has appealed from the decision of the district court to conduct an in camera inspection.

Subsequently, Justice released 307 pages of the formerly withheld documents which were copies of a magazine apparently published by SCJP. The remaining 59 pages were submitted for in camera review.

On March 9, 1981, the district judge issued the following Memorandum and Order, here set forth in its entirety:

Documents 10 and 11 contain huge deletions. The reason given is that the material is "outside the scope." Apparently this reference means that the material is outside the scope of plaintiff's request. As noted in this Court's previous memorandum, plaintiffs have asked the Department of Justice for "any and all reports on myself and any organization I am a member of (the Committee of Southern Churchmen, Southern Prison Ministry, The Southern Coalition on Jails and Prisons)." The agency could contend that plaintiffs' request is not specific enough for it to obtain the material relevant to the request. Once the material is discovered, however, defendant cannot refuse to disclose it unless a specific statutory exemption is applicable. Even though no specific statutory exemption is cited to this Court regarding Documents 10 and 11, the Court has scrutinized the documents to see whether a statutory exemption would be applicable. Having found no exemption applicable to the material withheld in Documents 10 and 11, defendant must release this material to plaintiffs.

Pursuant to this Court's memorandum and order of January 16, 1981, defendant has submitted the requested documents for in camera inspection. Having reviewed the documents and the supplementary affidavits, the Court concludes that defendant is entitled to withhold the matter for which specific statutory exemptions have been cited. The material that defendant has designated as "outside the scope" must be released.

The Court has before it ten documents, numbered Document 1 through 11 (no Document 8 was submitted), for inspection under this Freedom of Information Act request. In Documents 1, 2 and 3, defendant does not assert any statutory exemption and apparently is willing to release the documents to plaintiffs. In Document 4 defendant asserts two exemptions under 5 U.S.C. Sec. 522(b)(7)(C) [hereinafter cited as Exemption b7c]. The assertion of this exemption for these items is valid and therefore disclosure need not be made of the deleted items in Document 4.

Document 5 is lengthy and defendant asserts numerous statutory exemptions to disclosure. Exemptions under sections (b)(1) and (b)(7)(D) are asserted as well as Exemption b7c. The Justice Department has been careful to claim the minimum amount of material exempt. The bulk of the exempted matter in this document mentions sources and source references. Other exemptions concern matters that are within the personal privacy of the person named and should be of no concern to plaintiffs. The Court has reviewed these requested exemptions in detail and is satisfied that all are validly asserted. Therefore, all matters deleted from Document 5 need not be disclosed to plaintiffs.

Document 6 contains numerous b7c exemptions. These exemptions are validly asserted and defendant need not disclose this material. No exemptions are asserted in Document 7 and 9; Document 8 was not submitted for in camera review. (Apparently this omission was merely a clerical error on defendants' part because Document 8, as insignificant as it was, was submitted to the Court in a prior package.)

In sum, of the 59 pages submitted for inspection, 5 pages, denominated as Documents 1, 2, 3, 7 and 9, which were merely cover letters transmitting copies of the magazine and which were not asserted to be exempt at the time of review, were ordered released and are not now at issue. Documents 10 and 11, totalling 28 of the remaining 54 pages, were ordered released in full and the final 26 pages were released with deletions.

Subsequent to this order, Justice filed a Fed.R.Civ. P. 59(e) motion to "allow the Government to delete any exempted materials from documents 10 and 11" before disclosing them to Ingle. The government argued that it had properly decided not to index and submit affidavits addressing the exempt portions of Documents 10 and 11 until the disposition of threshold issue of whether the documents were within the scope of the request. Justice further urged that upon concluding that the documents were within the scope of Ingle's FOIA request, the district court should have permitted the FBI to apply its specialized knowledge and assert any statutory exemptions applicable to portions of Documents 10 and 11. The district judge denied this motion in a margin entry dated April 10, 1981.

As noted hereinabove, the decision of the trial judge to conduct an in camera review has not been directly challenged by either instant party. However, the examination by the trial court of the 59 pages of documents is a threshold consideration to this Court's application of the "clearly erroneous" test to the conclusions of the district judge. Simply stated, where the trial court relies solely upon a personal in camera inspection of documents as the basis for its decision evaluating FOIA exemptions, an appellate court may review such conclusion only by conducting a similar in camera review of the same documents. As stated by the D.C. Circuit in the polestar FOIA opinion of 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):

Ordinarily, the facts relevant to a dispute are more or less equally available to adverse parties. In a case arising under the FOIA this is not true, as we have noted, and hence the typical process of dispute resolution is impossible. In an effort to compensate, the trial court, as the trier of fact, may and often does examine the document in camera to determine whether the Government has properly characterized the information as exempt. Such an examination, however, may be very burdensome, and is necessarily conducted without benefit of criticism and illumination by a party with the actual interest in forcing disclosure. In theory, it is possible that a trial court could examine a document in sufficient depth to test the accuracy of a government characterization, particularly where the information is not extensive. But where the documents in issue constitute hundreds or even thousands of pages, it is unreasonable to expect a trial judge to do as thorough job of...