Maydak v. US. Dept. of Justice

• Decision Date: 18 July 2000
• Docket Number: No. 98-5492,98-5492
• Citation: 218 F.3d 760
• Parties: (D.C. Cir. 2000) Keith Maydak Appellant v. United States Department of Justice, Appellee
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 760

218 F.3d 760 (D.C. Cir. 2000)

Keith Maydak Appellant v. United States Department of Justice, Appellee

No. 98-5492

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 3, 2000

Decided July 18, 2000

Appeal from the United States District Court for the District of Columbia(No. 97cv01830)

Keith Maydak, appearing pro se, was on the brief for appellant.

David C. Belt, appointed by the court, argued the cause as amicus curiae on the side of appellant. With him on the briefs was Deanne E. Maynard.

Daria J. Zane, Assistant United States Attorney, argued the cause for appellee. With her on the brief were Wilma A. Lewis, U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.

Before: Silberman, Sentelle and Rogers, Circuit Judges.

Opinion for the Court filed by Circuit Judge Sentelle.

Sentelle, Circuit Judge:

Keith Maydak seeks the release under the Freedom of Information Act ("FOIA") of copies of law enforcement records compiled by the U.S. Attorney's Office for the Western District of Pennsylvania in connection with his criminal prosecution for various offenses. The government originally denied Maydak's FOIA request by invoking FOIA Exemption 7(A), which permits the withholding of law enforcement records which if produced "could reasonably be expected to interfere with enforcement proceedings." 5 U.S.C. § 552(b)(7)(A) (1994). The district court granted summary judgment for the government on that basis, holding that it could withhold the documents. Having now abandoned its assertion of Exemption 7(A), however, the Department of Justice ("DOJ") seeks a remand of this case so that it might defend the applicability of other FOIA exemptions. Because the DOJ has failed to explain adequately why it could not have pleaded the other exemptions on which it wished to rely in the original district court proceedings, we deny the motion for remand, reverse the district court's judgment, and order the release of all requested documents to Maydak.

I. Background

Maydak was convicted of wire fraud, mail fraud, access device fraud, and money laundering in the United States District Court for the Western District of Pennsylvania in 1994. He currently remains incarcerated for those crimes. On September 23, 1994, while his appeal from his criminal conviction was pending, Maydak filed with the United States Attorney's Office for the Western District of Pennsylvania a request under FOIA and the Privacy Act, 5 U.S.C. § 552a, for "copies of any and all documents which pertain to me, mention me, or list my name." On October 6, 1994, that request was forwarded to the Executive Office for United States Attorneys ("EOUSA").

On November 15, 1994, the EOUSA by letter denied Maydak's request in full, relying solely on FOIA Exemption 7(A).Exemption 7(A) exempts from FOIA disclosure requirements "records or information compiled for law enforcement purposes ... to the extent that the production of such law enforcement records or information ... could reasonably be expected to interfere with enforcement proceedings...." 5 U.S.C. § 552(b)(7)(A). The principal purpose of Exemption 7(A) is to prevent disclosures which might prematurely reveal the government's cases in court, its evidence and strategies, or the nature, scope, direction, and focus of its investigations, and thereby enable suspects to establish defenses or fraudulent alibis or to destroy or alter evidence. See NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 227, 241-42 (1978);see also 37A Am. Jur. 2d Freedom of Information Acts § 303 (1994). Another recognized goal of Exemption 7(A) is to prevent litigants from identifying and intimidating or harassing witnesses. See Robbins Tire, 437 U.S. at 239-40. In its denial letter, the EOUSA stated that "portions of the information" contained in Maydak's file were "being considered in connection with" his pending appeal, and thus that the government was withholding all of the requested documents pursuant to Exemption 7(A). Maydak filed a timely appeal of the EOUSA's denial with the Department of Justice's Office of Information and Privacy ("OIP"). On August 8, 1995, the Third Circuit affirmed Mayak's conviction and sentence. See United States v. Maydak, 66 F.3d 313 (3d Cir. 1995) (table).On May 29, 1996, the OIP informed Maydak that it was remanding his FOIA request for reprocessing because the EOUSA had concluded that Exemption 7(A) no longer applied.

On August 23, 1996, Maydak filed in the Western District of Pennsylvania a motion pursuant to 28 U.S.C. § 2255 to vacate his sentence. Maydak had waived his right to counsel at sentencing. In his § 2255 motion, he claimed that the waiver was not voluntary, knowing and intelligent because the court had not first explained to him the consequences of proceeding pro se, and thus that he was entitled to a new sentencing. On September 11, 1996, the district court dismissed Maydak's § 2255 motion. In November 1996, Maydak filed a motion in the Third Circuit for a certificate of appealability to challenge that dismissal. On February 7, 1997, EOUSA again denied Maydak's FOIA request on Exemption 7(A) grounds because of the pending § 2255 motion. Maydak again filed a timely appeal with the OIP. On April 10, 1997, the Third Circuit denied Maydak's motion for a certificate of appealability. And on June 12, 1997, the OIP informed Maydak that it was again remanding his FOIA request for reprocessing because the EOUSA had concluded that Exemption 7(A) no longer applied.

In response to the OIP's July 1997 remand of his FOIA request, on August 13, 1997, Maydak filed a complaint in the United States District Court for the District of Columbia seeking an order requiring the government to provide the records and a list of all documents withheld. In proceedings before the district court, Maydak asserted that the documents he requested were not exempt from disclosure under FOIA Exemption 7(A). Because he had already been convicted, Maydak contended that there were no "enforcement proceedings" pending with which release of the requested documents could interfere. The DOJ maintained that Exemption 7(A) continued to apply because the proceedings addressing Maydak's post-conviction motions (including but not limited to the August 23, 1996, § 2255 motion pending when his FOIA request was reprocessed) derived from and were part of the original law enforcement proceedings, and disclosure would interfere with the DOJ's ability to respond to those motions.The DOJ also argued that, should any of the motions result in the vacating of Maydak's conviction, disclosure of the requested documents could interfere with the government's ability to prosecute him again.

To support its argument that disclosure would interfere with those ongoing proceedings and to satisfy the government's burden of proof in denying a FOIA claim, the DOJ presented declarations from Paul E. Hull, the AUSA in the Western District of Pennsylvania who prosecuted Maydak, and from John F. Boseker, an attorney adviser in the EOUSA. The declarations grouped the requested records into categories and offered generic reasons for withholding the documents in each. It is well established that the government can satisfy its burden of proof under Exemption 7(A) by utilizing this format. See, e.g., Robbins Tire, 437 U.S. at 236;Bevis v. Department of State, 801 F.2d 1386, 1390 (D.C. Cir. 1986); Crooker v. Bureau of Alcohol, Tobacco and Firearms, 789 F.2d 64, 66-67 (D.C. Cir. 1986).

While his FOIA case was pending, on September 18, 1997, Maydak filed in the Western District of Pennsylvania a motion for a new trial based on newly discovered evidence pursuant to Federal Rule of Criminal Procedure 33. On March 25, 1998, the district court denied the motion, and Maydak appealed. On May 27, 1999, the Third Circuit affirmed the district court's decision. See United States v. Maydak, 182 F.3d 904 (3d Cir. 1999) (table). On September 16, 1999, Maydak filed a petition for a writ of certiorari in the United States Supreme Court, which petition was subsequently denied on November 29, 1999. See Maydak v. United States, 120 S. Ct. 556 (1999).

Additionally, on October 22, 1997, Maydak filed in the Third Circuit a motion for leave to file another § 2255 petition, seeking to reassert the invalid waiver of counsel at sentencing issue. On November 17, 1997, the Third Circuit denied that motion as well, but stayed its denial pending disposition of another case. The Third Circuit finally disposed of Maydak's motion to file another § 2255 petition on January 11, 2000.

Returning to Maydak's FOIA claim, on September 1, 1998, the district court agreed with the DOJ that the release of the requested documents would interfere with enforcement proceedings in the event that Maydak's pending post-conviction motions and appeals succeeded. Accordingly, the court held that the government properly withheld the records under Exemption 7(A), and granted summary judgment in favor of the DOJ. Maydak appealed the district court's decision to this court. We appointed an amicus curiae ("Amicus") and certified two questions: (1) whether FOIA Exemption 7(A) continues to apply as long as a criminal defendant is pursuing a post-conviction collateral attack on the judgment or sentence entered in a criminal enforcement proceeding to which the withheld records relate; and (2) whether the DOJ, through its submissions below, met its burden of justifying its invocation of Exemption 7(A) to shield all the records it identified as falling within the various record categories, as well as the residual records not specifically categorized.

On June 18, 1999, the DOJ conceded partial error with respect to the second of these issues, allowing specifically that the statement in the Hull declaration that "[m]ost of the documents can be placed into one of the [listed] categories" was inadequate to meet the government's burden under Exemption 7(A) with respect to those documents...