Schrecker v. U.S. Dept. of Justice

• Decision Date: 18 November 2003
• Docket Number: No. 02-5317.,02-5317.
• Citation: 349 F.3d 657
• Parties: Ellen W. SCHRECKER, Appellant, v. UNITED STATES DEPARTMENT OF JUSTICE, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 657

349 F.3d 657

Ellen W. SCHRECKER, Appellant, v. UNITED STATES DEPARTMENT OF JUSTICE, Appellee.

No. 02-5317.

United States Court of Appeals, District of Columbia Circuit.

Argued October 17, 2003.

Decided November 18, 2003.

Appeal from the United States District Court for the District of Columbia (No. 95cv00026).

James H. Lesar argued the cause and filed the briefs for appellant.

Michael J. Ryan, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Roscoe C. Howard, Jr., United States Attorney, and R. Craig Lawrence, Assistant United States Attorney.

Michael E. Tankersley was on the brief for amici curiae Public Citizen, Inc., et al. in support of appellant.

Before: GINSBURG, Chief Judge, EDWARDS, Circuit Judge, and WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS.

HARRY T. EDWARDS, Circuit Judge:

Ellen Schrecker appeals the District Court's decision granting summary judgment to the U.S. Department of Justice ("the Government"), in a case arising out of Schrecker's Freedom of Information Act ("FOIA") request for Federal Bureau of Investigation ("FBI") records relating to McCarthy-era investigations of Gerhart Eisler and Clinton Jencks. The Government produced over 24,000 pages of responsive documents, but redacted names and other information identifying third-party individuals mentioned in those records pursuant to Exemption 7(C) in FOIA. Exemption 7(C) permits an agency to withhold information compiled for law enforcement purposes where disclosure of such information "could reasonably be expected to constitute an unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(7)(C) (1996).

In a prior appeal involving the same parties, we remanded the case to the District Court in order for the Government to show that it had taken "certain basic steps" to ascertain whether the individuals whose names were withheld under Exemption 7(C) are living or dead. Schrecker v. United States Dep't of Justice, 254 F.3d 162, 167 (D.C.Cir.2001). Schrecker now challenges the District Court's findings on remand that the Government's efforts were adequate and that nondisclosure of the information under Exemption 7(C) is justified. See Schrecker v. United States Dep't of Justice, 217 F.Supp.2d 29 (D.D.C. 2002). We affirm the judgment of the District Court.

I. BACKGROUND

This appeal is the latest installment in a saga that began 15 years ago. Appellant Ellen Schrecker is a history professor, a published author, and an expert on McCarthyism. In 1988, she submitted a FOIA request for FBI records on Gerhart Eisler and Clinton Jencks. Both were the subjects of FBI investigations during the McCarthy Era, in 1947 and 1953, respectively. Schrecker v. United States Dep't of Justice, 14 F.Supp.2d 111, 114 (D.D.C. 1998). Schrecker resubmitted her request in November 1994, after the Government withheld a portion of the documents responsive to her initial request. Two months later she initiated this law suit in the District Court, challenging the adequacy of the FBI's releases. Id.

In 1998, after the Government had conceded that "a `significant portion' of its withholdings may have been inappropriate," the District Court ordered the Government to reprocess all withholdings from responsive documents. Id. at 117. After reprocessing, the Government prepared a 100-page Vaughn index from over 24,000 pages of responsive documents. See Schrecker v. United States Dep't of Justice, 74 F.Supp.2d 26, 28 (D.D.C.1999). A Vaughn index describes the information withheld from a sample of the responsive documents selected by the requesting party and explains the relevance of the FOIA exemption under which each item is withheld. See Vaughn v. Rosen, 484 F.2d 820, 826-28 (D.C.Cir.1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974).

In 1999, the District Court granted the Government's motion for summary judgment, upholding the Government's decision to withhold information from the responsive documents on the basis of six FOIA exemptions, including Exemption 7(C). Schrecker, 74 F.Supp.2d at 29-35. On appeal, we affirmed the District Court's decision with two exceptions. We first held that because the Government had acknowledged the previous existence of responsive "ticklers" (duplicate files, usually maintained by FBI supervisors, that contain copies of documents which may not have survived in other filing systems and may contain unique annotations), the Government was required to search for these records. Schrecker, 254 F.3d at 164-65.

More relevant for the instant appeal, we found that the record was not sufficiently developed to permit proper review of the Government's invocation of Exemption 7(C). The fact of an individual's death, we held, is a relevant factor in determining whether the Government properly withheld the individual's personal information under Exemption 7(C). Id. at 166. The Government affirmed that it had investigated whether the relevant individuals were deceased, relying on several clues and sources: (1) Who Was Who, a book of famous individuals; (2) the "100-year rule," which presumes that an individual is dead if his or her birth date appears in the responsive record and is more than 100 years old; and (3) "other readily available information." The record showed that the "other readily available information" included internal FBI records, but it was unclear as to whether it also included the Social Security Death Index ("SSDI"), a privately maintained database using Social Security Administration data. Id. at 166-67.

We held that, "[w]ithout confirmation that the Government took certain basic steps to ascertain whether an individual was dead or alive, we are unable to say whether the Government reasonably balanced the interests in personal privacy against the public interest in release of the information at issue." Id. at 167. We reversed the District Court's grant of summary judgment on the Exemption 7(C) withholdings and remanded the case for further proceedings. The court instructed that, on remand, the Government should be permitted to document the "other readily available information" upon which it relied. The District Court then could properly evaluate whether the Government "did all it should have done" and, on this basis, determine whether the Exemption 7(C) withholding was justified. Id.

On remand, the District Court again granted summary judgment for the Government, relying in significant part on two declarations from Scott A. Hodes, then Acting Chief of the Litigation Unit, Freedom of Information-Privacy Acts Section at FBI Headquarters. See Schrecker, 217 F.Supp.2d at 34-38. The court found that the Government's search for responsive "ticklers" satisfied the Government's duty under FOIA. Id. at 34-35. With regard to Exemption 7(C), the court found that the Government had investigated the life status of the individuals whose names were withheld, using the following clues and sources: Who Was Who; the 100-year rule; previous FOIA requests; "internal sources"; and SSDI searches where the individual's social security number appeared in the responsive records. Id. at 37. The District Court rejected Schrecker's argument that the FBI should use name-based searching of the SSDI when social security numbers are not available, finding that a social security number is necessary to verify that an individual listed in the database is the same individual appearing in the responsive document. The court found that it would be unduly burdensome for the Government to search unresponsive files for the social security number of every individual mentioned in a responsive document. Id. at 38.

The District Court accordingly held that the Government had done all it was required to do in investigating whether the individuals whose personal information was withheld were dead. The court also concluded that the Government had appropriately balanced privacy and public interests in withholding the information under Exemption 7(C) and, therefore, held that the Government was entitled to summary judgment. Id. at 38-39. Schrecker now appeals the District Court's decision as to the Exemption 7(C) issues. Public Citizen, Inc., and seven other organizations ("Amici") were granted leave by the court to file a joint amicus brief in support of Schrecker.

II. ANALYSIS

A. FOIA Exemption 7(C)

FOIA Exemption 7(C) provides, in relevant part, that an agency may withhold "records or information compiled for law enforcement purposes" to the extent that their production "could reasonably be expected to constitute an unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(7)(C) (1996). Exemption 7(C) requires the agency and the reviewing court to weigh the public interest in the release of information against the privacy interest in nondisclosure. See United States Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 762, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989).

The public interest in disclosure must be evaluated in light of FOIA's central purpose: "to open agency action to the light of public scrutiny." Id. at 772, 109 S.Ct. 1468 (quoting Dep't of Air Force v. Rose, 425 U.S. 352, 372, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976)). This inquiry, moreover, should focus not on the general public interest in the subject matter of the FOIA request, but rather on the incremental value of the specific information being withheld. See, e.g., King v. United States Dep't of Justice, 830 F.2d 210, 234 (D.C.Cir.1987).

On the privacy side of the ledger, our decisions have consistently supported nondisclosure of names or other information identifying individuals appearing in law enforcement records, including investigators, suspects, witnesses, and informants. See Fitzgibbon v. Cent. Intelligence Agency, 911 F.2d 755, 767-68 (D.C.Cir.1990); Keys v. United States Dep't of Justice, 830 F.2d 337, 347-48 (D.C.Cir.1987); King, 830 F.2d at 234-35; ...