Rosenfeld v. U.S. Dept. of Justice

• Decision Date: 12 June 1995
• Docket Number: No. 91-16538,91-16538
• Citation: 57 F.3d 803
• Parties: 23 Media L. Rep. 2101 Seth ROSENFELD, Plaintiff-Appellee, v. UNITED STATES DEPARTMENT OF JUSTICE; the Federal Bureau of Investigation, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 803

57 F.3d 803

23 Media L. Rep. 2101

Seth ROSENFELD, Plaintiff-Appellee, v. UNITED STATES DEPARTMENT OF JUSTICE; the Federal Bureau of Investigation, Defendants-Appellants.

No. 91-16538.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Sept. 16, 1992.

Submission Vacated May 7, 1993.

Resubmitted Jan. 24, 1995.

Decided June 12, 1995.

Freddi Lipstein, U.S. Dept. of Justice, Washington, DC, for defendants-appellants.

Thomas Steel, Steel, Clarence & Buckley, San Francisco, CA, for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of California.

Before: SCHROEDER, NORRIS, and BRUNETTI, Circuit Judges.

BRUNETTI, Circuit Judge:

Seth Rosenfeld sued the Department of Justice and the Federal Bureau of Investigation (the government) under the Freedom of Information Act (FOIA) to obtain information about FBI investigations of several individuals and 1960s protests at the University of California, Berkeley. The government appeals from the district court's grant of summary judgment, which ordered the government to release various documents it sought to withhold under FOIA exemptions.

I. Background and Proceedings Below

From late 1981 through early 1984, Rosenfeld filed requests with the Federal Bureau of Investigation (FBI) under FOIA, 5 U.S.C. Sec. 552. ¹ Rosenfeld sought release of documents relating to the FBI's investigation of people and organizations involved in the Free Speech Movement (FSM). The FSM organized demonstrations at the University of California, Berkeley (UC Berkeley), which protested campus regulations restricting political activities on campus grounds. The FBI located 8,432 documents responsive to the requests. It released 1,795 pages in their entirety, released 4,985 in redacted form, and withheld 1,652 pages in their entirety.

The parties litigated over documents in nine FBI files, but the government only appeals from rulings on documents in three, the FSM, Higgins, and Kerr files. As part III describes in greater detail, the government began investigations of the FSM out of a concern that its leaders were members of communist or subversive organizations. Clark Kerr was Chancellor of the UC Berkeley campus from 1952 to 1958 and President of the UC system from 1958 to 1967. Marguerite Higgins wrote about the FSM as a journalist.

Rosenfeld filed suit in the District Court for the Northern District of California on February 22, 1985, seeking release of the withheld information. The district court referred the matter to a magistrate. The parties agreed to focus their dispute on a representative sample of documents, using the court's ruling on these documents as guidance in processing and releasing the approximately 6,600 disputed documents. The FBI filed a Vaughn index ² on a representative sample of 200 disputed documents picked by both parties and an additional index for 250 additional documents chosen by Rosenfeld. Both parties also filed declarations (some in camera ) in support of their arguments. The magistrate conducted in camera review of the full texts of the indexed documents and 36 additional pages requested by the FBI. On February 3, 1988, the magistrate filed her opinion and recommendations.

On March 29, 1991, the district court issued its opinion based in part on the magistrate's recommendation and its own independent review of the record. 761 F.Supp. 1440 (N.D.Cal.1991). The court made two general findings relevant to this appeal. First, the court held that no document in the FSM file generated after January 19, 1965 qualified for any exemption 7 withholding requests because none of these documents were compiled with a law enforcement purpose. Id. at 1448. Second, the court found that the documents in the Kerr file also were not filed for a law enforcement purpose. Id. at 1449. As to the remaining exemptions in these and other files, the court set out its specific findings in the appendix to its opinion. Id. at 1450-63. The district court ordered the FBI to reprocess and release the remaining documents in accordance with its opinion. The court also ordered that any requested documents not yet indexed by the government be indexed and submitted to the court.

The government moved for reconsideration of this judgment. Two of the government's reasons for reconsideration are relevant to this appeal. The government argued that certain documents filed in the FSM file had been cross-filed into that file from other FBI investigatory files, and were exempt for a law enforcement purpose not connected to the FSM investigation. The government also asked the district court to reconsider some of its findings in light of the Supreme Court's decision in United States Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989). On September 23, 1991, the district court denied the government's motion for reconsideration.

The district court had subject matter jurisdiction of this case under 28 U.S.C. Sec. 1331. The government filed a timely notice of appeal of the order denying reconsideration on September 27, 1991. ³ We have jurisdiction under 28 U.S.C. Sec. 1291.

II. Standard of Review

We review the legal conclusions in the district court's grant of summary judgment de novo. In this circuit, we apply a special standard to review factual issues arising in an appeal from a grant of summary judgment in a FOIA case. Instead of determining whether a genuine issue of material fact exists, we employ the following two-step standard. We inquire whether an adequate factual basis supports the district court's ruling. If such a basis exists, we overturn the ruling only if it is clearly erroneous. Painting Indus. Market Recovery Fund v. Dep't of Air Force, 26 F.3d 1479, 1482 (9th Cir.1994).

III. Exemption 1: Information Classified in the Interest of National Security

The district court denied the government's requests to withhold material from FSM Docs. 51 and 495, Higgins Doc. 22, and Kerr Doc. 244 on exemption 1 grounds. ⁴ 761 F.Supp. at 1451, 1454, 1456-57, 1461. The government appeals from these denials.

The government bore the burden to sustain each of its exemption 1 claims. To carry this burden, the government needed to "provide the court and [Rosenfeld] with information sufficient to determine whether the source was truly a confidential one and why disclosure of the withheld information would lead to exposure of the source." Wiener v. FBI, 943 F.2d 972, 980 (9th Cir.1991). The government needed to "describe [the] particular withheld document, identify the kind of information found in that document that would expose the confidential sources, or describe the injury to national security that would follow from the disclosure of the confidential source of the particular document." Id. at 981. It would not have been enough to rely "on general assertions that disclosure of certain categories of facts may result in disclosure of the source and disclosure of the source may lead to a variety of consequences detrimental to national security." Id.

Neither the government's appeal briefs nor its withholding requests demonstrate with any particularity why portions of FSM Doc. 51, Higgins Doc. 22, or Kerr Doc. 244 should be exempted from the disclosure order. The district court correctly concluded that the government did not carry its burden as to these withholding requests. The government asks us to reverse the district court for not having afforded the government's classification decisions substantial weight. See id. at 980. This contention does not persuade us because the government failed to make an initial showing which would justify deference by the district court. See id.

Having reviewed the government's request to withhold information from FSM Doc. 495, we are satisfied that the government carried its burden. The government showed with particularity how disclosure might reveal the identity of an intelligence source. The district court sustained the government's request in part by allowing the government to delete information identifying the informant, but ruled that the document, edited accordingly, would not reveal the informant's identity. 761 F.Supp. at 1454. We are satisfied that the district court gave the government's request substantial weight, and find that the district court did not clearly err in finding that FSM Doc. 495 could be disclosed in part while still accommodating the government's classification interest.

IV. Exemption 7: Documents Ordered Disclosed As Having No Law Enforcement Purpose

A. The Rational Nexus Test

The remaining document disclosures all raise issues about 5 U.S.C. Sec. 552(b)(7). This section includes six different exemptions, all of which share the threshold requirement that the withheld record be "compiled for law enforcement purposes." The district court denied some withholding requests because the documents were not compiled for any law enforcement purpose, and others because, although the documents met this threshold requirement, they did not satisfy the requirements of any of the particular exemptions. This part addresses rulings that documents had no law enforcement purpose. Parts IV, V, and VI consider exemption 7(C), 7(D), and 7(E) issues, respectively.

The government always bears the burden to show that a given document is covered by an exemption and should be withheld. 5 U.S.C. Sec. 552(a)(4)(B). However, in this case, the government's burden for satisfying the threshold requirement of exemption 7 is easier to satisfy than the burden for other requirements. The releasing agency in this case, the Federal Bureau of Investigation, has a clear law enforcement mandate. Binion v. Department of Justice, 695 F.2d 1189, 1194 (9th Cir.1983). Because of this mandate, the government "need only establish a 'rational nexus' between enforcement of a federal law and the document for which [a law enforcement] exemption is claimed." Church of...