Trentadue v. Integrity Committee

• Decision Date: 07 September 2007
• Docket Number: No. 04-4200.,No. 06-4129.,04-4200.,06-4129.
• Citation: 501 F.3d 1215
• Parties: Jesse C. TRENTADUE, Plaintiff-Appellant, v. INTEGRITY COMMITTEE, a subdivision of the President's Council on Integrity and Efficiency, Defendant-Appellee.<SMALL><SUP>1</SUP></SMALL>
• Court: U.S. Court of Appeals — Tenth Circuit

501 F.3d 1215

Jesse C. TRENTADUE, Plaintiff-Appellant, v. INTEGRITY COMMITTEE, a subdivision of the President's Council on Integrity and Efficiency, Defendant-Appellee.¹

No. 04-4200.

No. 06-4129.

United States Court of Appeals, Tenth Circuit.

September 7, 2007.

Jesse C. Trentadue, Salt Lake City, UT, Pro Se for Plaintiff-Appellant.

Peter R. Maier, Appellate Staff Civil Division (Peter D. Keisler, Assistant Attorney General, Paul M. Warner, United States Attorney, and Leonard Schaitman, Appellate Staff Civil Division with him on the briefs), Department of Justice, Washington, D.C. for Defendant-Appellee.

Before KELLY, HENRY, and LUCERO, Circuit Judges.

LUCERO, Circuit Judge.

Jesse Trentadue appeals a district court's order rejecting his Freedom of Information Act ("FOIA") and constitutional claims to certain documents in the possession of the IC, and denying his motion for additional findings of fact. We conclude that, although some severable portions of the documents at issue may be withheld under FOIA's exemptions, most of the material falls outside the exemptions and must be disclosed. Accordingly, we REVERSE IN PART and REMAND to the district court for further proceedings consistent with this opinion.

I

In the early morning hours of August 21, 1995, staff at the Federal Transfer Center in Oklahoma City, Oklahoma found the bloody body of Kenneth Michael Trentadue hanging in his cell. We need not repeat here the grisly details of that death, which are discussed fully in Estate of Trentadue ex rel. Aguilar v. United States, 397 F.3d 840, 847-49 (10th Cir. 2005). The Bureau of Prisons ("BOP") initially investigated Trentadue's death, but ceased soon after the Federal Bureau of Investigation ("FBI") opened its own criminal inquiry. After the Trentadue family expressed concern over the FBI's conduct, the Civil Rights Division of the U.S. Department of Justice ("DOJ") began overseeing the investigation. Following lengthy grand jury proceedings, the DOJ concluded no credible evidence supported the theory that Trentadue was murdered. The DOJ Office of the Inspector General ("OIG") subsequently reviewed that investigation, finding that Trentadue had committed suicide, but also disclosing a number of "serious deficiencies." Id. at 850. The Oklahoma City Police Department also looked into Trentadue's death, and it too concluded he committed suicide.

Nevertheless, the Trentadue family remains convinced that Kenneth was murdered by either prison staff or other prisoners. After a summary of the sealed OIG report was released to the public, Jesse Trentadue, Kenneth's brother, filed an administrative complaint with the IC, a committee of PCIE, alleging misconduct by DOJ Inspector General ("IG") Glen Fine and his staff.

PCIE is an interagency, executive branch body created to "identify, review, and discuss areas of weakness and vulnerability in Federal programs and operations to fraud, waste, and abuse, and [to] develop plans for coordinated, Governmentwide activities that address these problems and promote economy and efficiency in Federal programs and operations." Exec. Order No. 12,805 § 3(a), 57 Fed.Reg. 20,627 (May 14, 1992). In conjunction with the Executive Council on Integrity and Efficiency, the chairperson of PCIE created the IC, which was later empowered to "receive, review, and refer for investigation allegations of wrongdoing against IGs and certain staff members of the OIGs." Exec. Order No. 12,993 § 1(a), 61 Fed.Reg. 13,043 (Mar. 21, 1996). Upon receiving an allegation, the IC determines whether there is a "substantial likelihood" of wrongdoing. Id. § 2(c). If so, it refers the allegation to the appropriate authority or investigates the matter itself. Id. The investigative body then submits a report to the IC, which must decide to either forward the report to the chairperson of PCIE with a recommendation, or take no further action. Id. § 4(a)-(c). Executive Order 12,993 concludes by noting that it is "intended only to improve the internal management of the executive branch and is not intended to create any right or benefit, substantive or procedural, enforceable at law by a party against the United States, its agencies, its officers, or any person." Id. § 7.

Trentadue's allegations were assigned Case Number 349 by the IC and referred to the DOJ Public Integrity Section to determine whether a criminal investigation was appropriate. Although the DOJ decided not to pursue criminal charges, the IC requested a response to Trentadue's allegations from Fine. He complied in September 2002. Trentadue subsequently requested to view any documents submitted by Fine, but the IC did not disclose Fine's response. On November 26, 2002, the IC sent Trentadue a letter stating it would take no further action with respect to his allegations. Trentadue, however, apparently did not receive that letter and inquired as to the status of the IC's investigation in February 2003. The IC then resent the November 26 letter indicating its investigation was closed.

Upon learning that the IC intended to take no action, Trentadue filed a FOIA request, seeking: (1) any IC reports or rulings issued in Case Number 349, (2) copies of all documents submitted by the DOJ or OIG to the IC, (3) copies of all documents sent from the IC or PCIE to the DOJ or OIG, and (4) any record indicating that the IC actually mailed the November 26 letter on November 26. In response, the IC conducted a review of its records and concluded that Trentadue was already in possession of two responsive documents: the November 26, 2002 letter, and a redacted version of OIG's November 1999 report regarding the investigation of Kenneth's death. Relying on the FOIA exemptions codified at 5 U.S.C. § 552(b)(5), (6), and (7)(C), however, the IC withheld 94 pages of responsive documents.

In April 2003, Trentadue filed a complaint in federal district court against the IC and PCIE. Trentadue subsequently moved to dismiss his claims against PCIE, and the dispute narrowed to two records: the set of documents submitted by Fine to the IC, and an IC scheduling notice. Trentadue asserted claims to these records under FOIA, as well as the First and Fifth Amendments.

Both parties filed cross motions for summary judgment, with the IC arguing that the documents were properly withheld under FOIA exemptions 5, 6, 7(A), and 7(C). In support of its motion, the IC submitted a sworn declaration from Noel Hillman, Chief of DOJ's Public Integrity Section, who averred that release of the contested materials "would interfere with the Public Integrity Section's ongoing, related criminal investigation." After an in camera review of the records, the district court granted the IC's motion for summary judgment with respect to Fine's submissions to the IC. The court concluded that the documents were properly withheld under § 552(b)(7)(A), because their disclosure "could reasonably be expected to interfere with enforcement proceedings." It also granted summary judgment to Trentadue on his claim for release of the scheduling notice. Finally, the court dismissed Trentadue's constitutional cause of action for failure to state a claim. Trentadue then filed a motion for additional findings and amendment of judgment, which the district court denied.

Trentadue appealed the district court's adverse rulings under docket number 04-4200 in this court. While his appeal was pending, the IC released two additional documents to Trentadue. The first is a one-page cover letter accompanying a substitute page submitted by Fine to the IC. The second is an attachment to Fine's substantive comments, consisting solely of a district court order in Estate of Kenneth Michael Trentadue v. United States, No. CIV-97-849-L (W.D.Okla. May 1, 2001).²

While his appeal was pending, Trentadue pursued a separate FOIA case in federal court. Hillman submitted a similar declaration in that case, claiming that release of the information sought by Trentadue would compromise an ongoing investigation. The district court, however, noted a "conflict in the record as to whether there is in fact an ongoing investigation being conducted by the Public Integrity Section." Trentadue v. Fed. Transfer Ctr., No. 2:03-CV-00946, slip op. at 2 (D.Utah May 23, 2005). It ordered Hillman to appear before the court to testify, in camera if necessary, as to the status of the investigation. Id. Hillman then submitted an additional declaration stating that the Public Integrity Section had closed its investigation. Following this declaration, the IC filed a motion for partial vacatur and remand with this court, noting that with the conclusion of the Public Integrity Section's investigation, § 552(b)(7)(A) no longer justified withholding the documents at issue. We granted that motion, vacating the district court's grant of summary judgment to the IC and remanding to determine whether one of the other FOIA exemptions asserted by the IC justified withholding. See Trentadue v. Integrity Comm., No. 04-4200 (10th Cir. Sept.27, 2005).

On remand, the parties filed supplemental briefs concerning the applicability of § 552(b)(5), (6), and (7)(C). In support of its arguments, the IC submitted a declaration from William Gressman, a Senior Associate General Counsel with the U.S. Office of Government Ethics. Gressman stated, "Protection of IG Fine's submission specifically and IG responses generally is necessary to ensure free, open, and candid discussion between the IC and subject IG." The district court was persuaded by this declaration and found that § 552(b)(5) allowed the IC to withhold each of the disputed documents in their entirety. It further found that § 552(b)(6) and (7)(C) justified withholding information identifying law enforcement personnel, including those accused of misconduct, as well as information identifying third parties with no connection to law enforcement.

Trentadue again appealed and was assigned a second docket number, 06-4129. This...