Summers v. Department of Justice

• Decision Date: 17 April 1998
• Docket Number: No. 97-5002.,97-5002.
• Parties: Anthony SUMMERS, Appellant, v. DEPARTMENT OF JUSTICE, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

140 F.3d 1077

Anthony SUMMERS, Appellant, v. DEPARTMENT OF JUSTICE, Appellee.

No. 97-5002.

United States Court of Appeals, District of Columbia Circuit.

Argued Jan. 8, 1998.

Decided April 17, 1998.

Appeal from the United States District Court for the District of Columbia (No. 87cv03168).

Daniel S. Alcorn argued the cause for appellant. James H. Lesar, Washington, DC, was on the briefs.

Melanie A. Pustay, Senior Counsel, United States Department of Justice, Washington, DC, argued the cause for appellee, with whom Mary Lou Leary, United States Attorney at the time the brief was filed, and R. Craig Lawrence, Assistant United States Attorney, were on the brief.

Before: SILBERMAN, WILLIAMS and SENTELLE, Circuit Judges.

Opinion for the court filed by Circuit Judge SENTELLE.

Concurring opinion filed by Circuit Judge SILBERMAN.

Concurring opinion filed by Circuit Judge STEPHEN F. WILLIAMS.

SENTELLE, Circuit Judge:

In this case arising under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 (1997), author Anthony Summers seeks to compel release of the official and confidential records of former FBI Director J. Edgar Hoover. Summers and the government filed cross-motions for summary judgment on the issue of Summers's entitlement to disputed documents. The district court granted the motion of the government and denied that of the plaintiff in a summary order without explanation. Although we review grants of summary judgment de novo, and the law does not require district judges to enter findings of fact or conclusions of law in the grant of such motions, because of the unique nature of FOIA litigation our precedents under that statute permit remand for the development of an adequate explanation when we find an abuse of discretion in the failure of the district court to provide one. As this is such a case, we remand for further proceedings.

I. Background

J. Edgar Hoover maintained an extensive array of FBI files in his office at FBI Headquarters. These documents — the so-called "official and confidential" files — include FBI files that Hoover had charged out of the FBI's central records system; Hoover's official and personal correspondence; as well as various FBI memoranda. In December of 1986, Anthony Summers, appellant here, filed a FOIA request with the FBI seeking release of Hoover's official and confidential files.

In response to Summers's FOIA request, the FBI first released approximately 6,500 pages of material that had previously been made public under an earlier FOIA request. In addition, the FBI reprocessed the official and confidential files, ultimately releasing about 12,000 additional pages to Summers. In doing so, the FBI withheld portions of these files pursuant to exemptions 1, 2, 6, 7(C), 7(D), and 7(E) of the FOIA. See 5 U.S.C. § 552(b).

Challenging the FBI's claimed exemptions, Summers filed a lawsuit against the United States Department of Justice in November 1987. By agreement of the parties, Summers selected 500 pages of the official and confidential files to serve as the basis for the FBI's Vaughnindex, setting forth its justifications for refusing disclosure. The parties subsequently filed cross-motions for summary judgment addressing the FBI's withholding of certain documents and portions of documents. In support of its motion, the government submitted eight affidavits prepared by FBI Special Agents. These affidavits purported to explain the nature of the withheld information, and stated which FOIA exemption or exemptions were intended to justify the withholding.

After the cross-motions for summary judgment became ripe for decision, the district court scheduled a status-call/motions hearing for November 1, 1996. A transcript of the hearing, which lasted approximately three minutes, appears below:

THE DEPUTY CLERK: Civil Action 87-3168, Anthony Summers v. Department of Justice. Mr. Lesar for the plaintiff, Melanie Pustay for the defendant.

MR. LESAR: Good morning, Your Honor.

THE COURT: Good morning, ladies and gentlemen. I have come to the conclusion in reviewing this case that it is a dead stalemate at the moment, that there are going to be no more documents released, there's going to be no settlement, and that there is really no alternative left to simply deciding the motions. I take it you concur?

MR. LESAR: I certainly concur, yes.

THE COURT: Well, we have reviewed the file, reviewed the documents, made more than a cursory, but less than a total review of the affidavits, the documents that have been withheld and the exemptions claimed for them, and I am satisfied that the exemptions are properly claimed Mr. Lesar, so I'm going to grant the government's motion and deny yours. If you can persuade the court of appeals to the contrary, more power to you.

MR. LESAR: I'll try.

THE COURT: All right. This case has been around since 1987. It would be nice — it's coming up on its tenth anniversary, in other words.

MR. LESAR: Yes.

THE COURT: It would be nice if there was some prospect that there were going to be further reviews, further release of documents, a little flexibility on the part of Mr. Summers, but I gather that there won't be, and so let's — let's just move it along.

MR. LESAR: All right.

MS. PUSTAY: Thank you, your honor.

MR. LESAR: Thank you, your honor. I assume that the court will be issuing a written order?

THE COURT: I'm not going to write an opinion, just a summary order, and then you can reiterate everything that you've said on the fifth floor.

MR. LESAR: All right, thank you.

THE COURT: Let them worry with it for a while.

MR. LESAR: All right.

The district court issued its "summary order" on the same day that the hearing took place. The order stated that "upon consideration of" the record, including the affidavits of three FBI agents and "the Court's own review of a sampling of the redacted documents and Vaughn indices, ... the materials withheld by defendant are, in fact, properly withheld under the Freedom of Information Act." The two-page order did not refer to any particular withheld document, nor did it refer to any of the specific FOIA exemptions raised by the government.

Three days after the district court issued its decision, the government notified the court that it is reversible error not to make "specific findings of segregability regarding each of the withheld documents." See Krikorian v. Department of State, 984 F.2d 461, 467 (D.C.Cir.1993). Attempting to correct this problem, the government submitted a proposed order stating that "all legal requirements for the exemptions invoked by defendant pursuant to the Freedom of Information Act ... have been satisfied, and that all reasonably segregable, nonexempt material has been disclosed." The proposed order further stated that it was "just and proper" to grant the government's summary judgment motion "for the reasons set forth in Defendant's Motion for Summary Judgment and supporting papers." The district judge signed the government's proposed order verbatim, without waiting for Summers to file a response.

Summers filed a timely notice of appeal from the district court's grant of summary judgment in favor of the government.

II. Discussion

A

Our analysis of this case focuses not on whether our review of the district court's decision discloses error, but rather on the nature of our review. As the government rightly points out, it is well-understood law that "[w]e review orders granting summary judgment de novo." Gallant v. NLRB, 26 F.3d 168, 171 (D.C.Cir.1994). This is so because in our review of decisions granting summary judgment we must decide the same question that was before the district court: "[t]hat is, we must determine whether there is on the record `no genuine issue as to any material fact.'" Id. (quoting Fed.R.Civ.P. 56(c)). For that reason, we normally do not require the district court to make findings of fact or conclusions of law in support of orders granting summary judgment. Indeed, the Federal Rules specifically provide "findings of fact and conclusions of law are unnecessary on decisions of motions under Rule ... 56." Fed.R.Civ.P. 52(a).

Not only is it the general rule that we do not require findings of fact and conclusions of law in decisions allowing summary judgment, in the ordinary run of cases this rule is a most sensible one. As the granting of summary judgment depends in the first instance on the lack of issues of material fact, if the trial judge had to engage in the weighing of evidence and the finding of fact in order to reach a decision, then a grant of summary judgment would not be in order. Further, as noted above, our task on appeal is the same as the task faced by the district court — reviewing the record de novo to determine whether genuine issues of material fact would preclude summary judgment. Thus, because our own review is coterminous with that of the district court, the findings and legal conclusions of a district court could be no more than useful and desirable in ordering our review.

However, due to the peculiar nature of the FOIA, we have created exceptions to the normal summary judgment review processes applicable to litigation under that statute. The FOLA, enacted in 1966, reflects "a general philosophy of full agency disclosure." United States Dep't of Defense v. FLRA, 510 U.S. 487, 494, 114 S.Ct. 1006, 1011-12, 127 L.Ed.2d 325 (1994) (citation omitted). In keeping with this goal, the Act requires every agency, "upon any request for records which ... reasonably describes such records," to make such records "promptly available to any person." 5 U.S.C. § 552(a)(3). Although "disclosure, not secrecy, is the dominant objective of [the FOIA]," United States Dep't of Defense, 510 U.S. at 494, 114 S.Ct. at 1012, the statute contains nine exemptions under which agencies may refuse to disclose requested information. 5 U.S.C. § 552(b). These exemptions stem from Congress's recognition that the release of certain information may harm...