Payne v. Dept of Justice

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 16, 1997
• Docket: 96-30840
• Status: Unpublished

Opinion

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

_______________________

No. 96-30840 Summary Calendar _______________________

R. E. PAYNE,

Plaintiff-Appellant,

versus

DEPARTMENT OF JUSTICE; FEDERAL BUREAU OF INVESTIGATION,

Defendants-Appellees.

_________________________________________________________________

Appeal from the United States District Court for the Eastern District of Louisiana (95-CV-2968-A) _________________________________________________________________

July 11, 1997

Before JONES, DeMOSS, AND PARKER, Circuit Judges.

PER CURIAM:*

Appellant R.E. Payne appeals the district court’s order

granting the Department of Justice’s and the Federal Bureau of

Investigation’s (the “FBI”) motion for summary judgment and

rejecting his FOIA requests. For the following reasons, we

affirm.

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. BACKGROUND

In response to a defamation suit filed by John Volz

against appellant R.E. Payne for information contained in several

publications indicating that Volz had accepted bribes in

connection with his position as a United States Attorney for the

Eastern District of Louisiana and that Volz had ties to the

Mafia, Payne submitted a request to the FBI under the Freedom of

Information Act (“FOIA”), 5 U.S.C. § 552. Payne sought tape

recordings made during a criminal investigation of reputed Mafia

boss Carlos Marcello during the FBI’s BRILAB operation. Payne

also sought any FBI reports summarizing or characterizing the

tape recordings. The Government notified Payne that they did not

have any recordings or documents which would fulfill his request.

On September 8, 1995, Payne filed suit against the

appellees asserting a right to injunctive and declaratory relief

under the FOIA. He sought the same information he previously

requested, except he expanded his request to include one

additional date. On that same day, Payne also filed a Motion for

a Vaughn1 index. The district court denied Payne’s motion, but

reserved his right to reurge the motion “[o]nce the defendants

have had sufficient time to review their files, answer the

1 See Vaughn v. Rosen, 484 F.2d 820, 828 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974). The purpose of a Vaughn index is to evaluate the adequacy of an agency’s response to a FOIA request. See Voinche v. FBI, 999 F.2d 962, 963 n.* (5th Cir. 1993).

2 complaint, and prepare any dispositive motions.” Payne never

reurged the motion.

Pursuant to his newly expanded request, the FBI

conducted another search to determine whether records or tape

recordings responsive to Payne’s request were located in its New

Orleans Division. The search revealed six tape recordings. It

was subsequently determined that, although responsive to Payne’s

request, the tapes would be withheld under Exemptions 3 and 7(c)

of the FOIA, 5 U.S.C. § 552(b)(3), (b)(7).

On May 30, 1996, the Government filed a motion for

summary judgment contending that it fully discharged its

obligations to Payne because under the FOIA the search for the

requested records was reasonable and the tape recordings were

exempt. The district court granted the motion, holding that the

tape recordings, having been obtained pursuant to Title III of

the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C.

§§ 2510-2521, fell within the scope of Exemption 3 of the FOIA.

Payne timely appealed.

DISCUSSION

We review de novo the district court’s decision

regarding whether items are exempt under FOIA. See Avondale

Indus., Inc. v. NLRB, 90 F.3d 955, 958 (5th Cir. 1996); Voinche

v. FBI, 999 F.2d 962, 963 (5th cir. 1993). In a FOIA case, the

agency has the burden of justifying nondisclosure. See 5 U.S.C.

3 § 552(a)(4)(B). To prevail, an agency must first establish that

it conducted an adequate search for responsive documents, “using

methods which can be reasonably expected to produce the

information requested.” See Oglesby v. U.S. Dep’t of Army, 920

F.2d 57, 68 (D.C. Cir. 1990). An agency may establish

reasonableness through affidavits that provide a reasonably

detailed and non-conclusional description of the agency’s search

methods. See Patterson v. IRS, 56 F.3d 832, 836 (7th Cir. 1995).

If the agency demonstrates that it conducted a reasonable search,

the FOIA requester can rebut the agency affidavits by producing

tangible evidence of bad faith. See Minier v. CIA, 88 F.3d 796,

803 (9th Cir. 1996) (citing Carter v. U.S. Dep’t of Commerce, 830

F.2d 388, 393 (D.C. Cir. 1987)).

Once it is established that the agency conducted a

reasonable search, the agency must then prove that “each document

that falls within the class requested either has been produced,

is unidentifiable, or is wholly exempt from the Act’s inspection

requirements.” Miller v. United States Dep’t of State, 779 F.2d

1378, 1382-83 (8th Cir. 1985) (quoting Nat’l Cable Television

Ass’n v. FCC, 479 F.2d 183, 186 (D.C. Cir. 1973))(internal

quotation marks omitted). If the agency is asserting that a

document is exempt from disclosure, it may sustain its burden

through the submission of detailed affidavits or declarations

that identify the documents and explain why they fall within the

4 claimed exemptions. See King v. U.S. Dep’t of Justice, 830 F.2d

210, 217 (D.C. Cir. 1987).

Payne asserts that the FBI failed to perform a

reasonable search and may have acted to conceal the tapes. He

argues that the FBI should have found the tapes sooner and that

the delay in locating the tapes shows the unreasonableness of the

search. His argument is unavailing. The Government established

the reasonableness of its search through the affidavits of Bobbie

S. Olivari and Elizabeth M. Nemeth, the employees responsible for

conducting the search. The affidavits set forth the manner in

which the search was conducted, the files and databases searched,

and the results of the search. Delay in locating a document is

significant only to the extent that the evidence indicates that

the delay resulted from a bad faith refusal to cooperate. See

Miller, 779 F.2d at 1386; Perry v. Block, 684 F.2d 121, 128 (D.C.

Cir. 1982) (adequacy of agency search upheld notwithstanding

delay of over one and one-half years).

Payne also complains that certain tapes that he

believes exist have not been listed. He avers that the failure

of the FBI to list the tapes is further evidence of the

inadequacy of the search and its bad faith. However, an agency

affidavit is accorded a preemption of good faith, which cannot be

rebutted by “purely speculative claims about the existence and

5 discoverability of other documents.” Ground Saucer Watch, Inc.

v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981).

Payne’s allegations of conspiracy and cover-ups,

without tangible evidence to support his assertions, are

insufficient to overcome the Government’s submissions. The

agency’s submissions establish that there is no genuine issue of

material fact as to the reasonableness of the FBI’s search.

Further, the district court determined that the tape

recordings, having been obtained pursuant to Title III of the

Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §

2510-21, fell within the scope of Exemption 3 of the FOIA. Payne

asserts only that the district court erred in determining that

Title III communications fell within Exemption 3. His argument

is without merit.

Exemption 3 of the FOIA exempts from disclosure matters

that are:

. . . specifically exempted from disclosure by statute . . . provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld.

5 U.S.C. § 552(b)(3). Title II prohibits the disclosure of

materials obtained through the use of electronic surveillance

except in very specific, limited circumstances. See 18 U.S.C. §

2517. Contrary to Payne’s assertions, Title III falls squarely

within the scope of Exemption 3 of FOIA. See Davis v. United

6 States Dep’t of Justice, 968 F.2d 1276, 1280-81 (D.C. Cir. 1992);

Lam Lek Chong v. U.S. DEA, 929 F.2d 729, 733-34 (D.C. Cir. 1991).

The district court did not err in concluding that the subject

tapes were exempt.

As to Payne’s assertion that the district court erred

in denying his request for a Vaughn index and responses to

interrogatories, this court will intervene in discovery matters

only upon a clear showing of manifest injustice -- where the

lower court’s discovery order was plainly wrong and resulted in

substantial prejudice to the aggrieved party. See Maynard v.

CIA, 986 F.2d 547, 567 (1st Cir. 1993). Payne’s request for a

Vaughn index was denied as premature, and the district court

specifically reserved Payne’s right to reurge his request. Payne

chose not to do so. As to the interrogatories, Payne’s attorney

represented to the court that the information responsive to the

interrogatories was possibly under seal in the BRILAB

prosecution. The court directed Payne to file a motion to unseal

and to keep the court apprised of his efforts. Again, Payne

chose not to do so. The district court did not abuse its

discretion, and we perceive no error here.

AFFIRMED.