Schiffer v. F.B.I.

• Citation: 78 F.3d 1405
• Decision Date: 08 March 1996
• Docket Number: No. 94-15472,94-15472
• Parties: 96 Cal. Daily Op. Serv. 1608, 96 Daily Journal D.A.R. 2730 Steven SCHIFFER, Plaintiff-Appellee, v. The FEDERAL BUREAU OF INVESTIGATION; United States Department of Justice, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1405

78 F.3d 1405

96 Cal. Daily Op. Serv. 1608, 96 Daily Journal

D.A.R. 2730

Steven SCHIFFER, Plaintiff-Appellee, v. The FEDERAL BUREAU OF INVESTIGATION; United States Department of Justice, Defendants-Appellants.

No. 94-15472.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Nov. 16, 1995.

Decided March 8, 1996.

Appeal from the United States District Court for the Northern District of California, Charles A. Legge, District Judge, Presiding.

William G. Cole, United States Department of Justice, Washington, D.C., for defendants-appellants.

Joseph M. Burton, Sideman & Bancroft, San Francisco, California, for plaintiff-appellee.

Before: WALLACE and LEAVY, Circuit Judges, and BAIRD, ^* District Judge.

WALLACE, Circuit Judge:

The Federal Bureau of Investigation (FBI) appeals from a district court order requiring limited disclosure of certain law enforcement documents pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552. The district court exercised jurisdiction pursuant to 5 U.S.C. § 552(a)(4)(B). We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291, and we reverse.

I

As the district court stated, this case arises from "civil litigation that [ ] got completely out of hand." In 1987, Steven Schiffer filed a civil lawsuit against his former business partners, including Thomas Sherwood, which concerned the control of two companies and included claims for breach of contract, breach of fiduciary duty, bad faith denial of contract, defamation, abuse of process, and malicious prosecution. According to Schiffer, Sherwood attempted to gain leverage in the suit by accusing Schiffer of hiring a "hit man" to kill Sherwood and his wife. Schiffer contends that Sherwood then reported Schiffer's "plot" to a personal friend of Sherwood's who was a former agent of the Central Intelligence Agency, James M. Potts. According to Schiffer, Potts used his connections with the FBI to persuade it to instigate an investigation of the alleged murder-for-hire plot. In connection with this investigation, the FBI generated the documents at issue in this case. Much of the information contained in the requested documents was disclosed during six years of litigation over Schiffer's civil suit.

On November 8, 1989, Schiffer submitted a FOIA request to the FBI in an effort to obtain information contained in the FBI's files pertaining to its investigation of him. On May 29, 1990, the FBI informed Schiffer that 49 pages of information comprising 15 documents related to his request, of which the FBI released portions of five pages. It released portions of two additional pages on December 27, 1991, following an administrative appeal, and two more pages in redacted form on January 27, 1992. The FBI refused to release the remaining pages, asserting that the information requested was exempted from disclosure under 5 U.S.C. § 552(b)(7)(C) and (D). Those provisions exempt from disclosure law enforcement records or other information compiled for law enforcement purposes to the extent that disclosure could result in an unwarranted invasion of personal privacy, section 552(b)(7)(C), or could disclose the identity of a confidential source, section 552(b)(7)(D).

Because the FBI refused to disclose the remaining documents, Schiffer filed this action in federal court, and testified in his declaration that he had "great personal interest" in obtaining the documents because they "appear to be highly prejudicial." The FBI submitted all the documents implicated by Schiffer's FOIA request to the district court for in camera review. Following a hearing on the FBI's motion for summary judgment and Schiffer's cross-motion for summary judgment, the district court ordered the FBI to disclose the remaining documents, with two minor redactions.

The district court first rejected the FBI's argument that the documents were exempt under section 552(b)(7)(C). It held that because the persons named in the FBI documents were for the most part already known to Schiffer, "the major [privacy] interest at issue here, if there is any at all, is ... Mr. Schiffer's own interest and confidentiality." The district court also rejected the FBI's asserted exemption under section 552(b)(7)(D), finding that the witnesses interviewed did not receive confidential informant status and that there was "not any clandestine or [ ] top security type of investigation." Recognizing that Schiffer wanted the documents merely to satisfy his "curiosity," the district court limited their disclosure by ordering Schiffer not to "provide copies of the documents [or] disclose their contents to any other person or company."

The FBI appealed from the district court's decision, reasserting that section 552(b)(1)(C) and (D) apply and arguing that the identity of the party requesting documents should not affect the application of FOIA. If we conclude that the documents are exempt for personal privacy under section 552(b)(7)(C), we will not need to reach the issue whether the witnesses who provided information to the FBI are "confidential informants" under section 552(b)(7)(D). We therefore first address the section 552(b)(7)(C) issue.

II

Ordinarily, we review a summary judgment de novo. First Pacific Bank v. Gilleran, 40 F.3d 1023, 1024 (9th Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 55, 133 L.Ed.2d 19 (1995). This requires us to view the evidence in the light most favorable to the nonmoving party and to determine whether there are any genuine issues of material fact and whether the district court applied the correct substantive law. Id. Determining the appropriate standard of review to apply to summary judgment in FOIA cases, however, has caused some confusion because of the peculiar circumstances presented by such cases.

In a typical FOIA case, the plaintiff must argue that a government agency has improperly withheld requested documents, even though only the agency knows their actual content. Wiener v. FBI, 943 F.2d 972, 977 (9th Cir.1991) (Wiener ), cert. denied, 505 U.S. 1212, 112 S.Ct. 3013, 120 L.Ed.2d 886 (1992); see also Jones v. FBI, 41 F.3d 238, 242 (6th Cir.1994) (Jones ). "This lack of knowledge by the party seeking disclosure seriously distorts the traditional adversar[ial process]." Wiener, 943 F.2d at 977. To address this problem, courts have created methods to be sure the requesting party and the deciding judge have sufficient information upon which to determine whether the government agency properly withheld the requested documents. These methods include creation of a "Vaughn index" (which identifies each document withheld, the statutory exemption claimed, and an explanation of how disclosure would damage the interest protected), and the submission of some other form of accounting for the withheld documents, such as an affidavit. See id. at 977-78 & n. 5 (describing contents and role of a Vaughn index and providing examples of circumstances where a Vaughn index is not required). A court also may review the requested documents in camera, but such review does not replace the need for an adequate Vaughn index or other accounting. Id. at 979.

Based on a Vaughn index and perhaps an in camera review, a district court must determine whether the requested documents fall within the claimed exemption. In reviewing the district court's FOIA action in a summary judgment, we do not ask whether there is a genuine issue of material fact because "the document says whatever it says." Assembly of the State of California v. United States Dept. of Commerce, 968 F.2d 916, 919 (9th Cir.1992) (Assembly of California ). Rarely are the facts in dispute. Thus, we first "determine whether the district judge had an adequate factual basis for his or her decision." Church of Scientology v. United States Dept. of the Army, 611 F.2d 738, 742 (9th Cir.1979) (Church of Scientology ). If so, we will overturn the district court's factual findings underlying its decision only if they are clearly erroneous. Id.

Some courts have followed Church of Scientology in applying the clearly erroneous standard not only to the factual findings underlying the district court's decision, but also to the decision whether a particular document falls within a FOIA exemption. See Davin v. United States Dept. of Justice, 60 F.3d 1043, 1049 (3d Cir.1995); Becker v. IRS, 34 F.3d 398, 402 (7th Cir.1994); Miscavige v. IRS, 2 F.3d 366, 367 (11th Cir.1993); but see Jones, 41 F.3d at 242 (applying same standard of appellate review applicable generally to summary judgments); Church of Scientology Int'l v. United States Dept. of Justice, 30 F.3d 224, 228 (1st Cir.1994) (same); Petroleum Information Corp. v. United States Dept. of the Interior, 976 F.2d 1429, 1433 (D.C.Cir.1992) (same).

We, too, have repeatedly applied the Church of Scientology clearly erroneous standard to a district court's final determination of whether a particular document is exempt under FOIA. See, e.g., Rosenfeld v. United States Dept. of Justice, 57 F.3d 803, 807 (9th Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 833, 133 L.Ed.2d 832 (1995); National Wildlife Federation v. United States Forest Service, 861 F.2d 1114, 1116 (9th Cir.1988); Lewis v. IRS, 823 F.2d 375, 378 (9th Cir.1987). In Assembly of California, we endorsed the Church of Scientology standard because in FOIA cases the district court's "findings of fact effectively determine our legal conclusions." See United States v. McConney, 728 F.2d 1195, 1204 (9th Cir.) (en banc) (applying clearly erroneous standard to trial court's negligence determination), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984); Assembly of California, 968 F.2d at 919 (citing McConney ). We also have recognized, however, that where, as here, the parties do not dispute that the district court had an adequate factual basis for its decision, we "review on purely legal grounds the judgment on cross-motions for summary judgment." Multnomah County Medical Society v....