Telegraph v. Department of Justice CV-95-521-M 07/01/96 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Telegraph Publishing Company, Inc., Plaintiff,
v. Civil No. 95-521-M
United States Department of Justice, Defendant.
O R D E R
The plaintiff. Telegraph Publishing Company, Inc.
("Telegraph"), submitted a reguest under the Freedom of
Information Act ("FOIA") for access to records related to the
investigation and prosecution of three Nashua aldermen. The
Executive Office for United States Attorneys denied the reguest
on grounds that the Privacy Act and FOIA Exemptions 6 and 7 (C)
prohibit release of the information. Telegraph then filed suit
seeking disclosure of the reguested material. In an order dated
March 29, 1996, Magistrate Judge Muirhead granted Telegraph's
motion for production of a so-called Vaughn index of the withheld
documents.1 Presently before the court is the government's
motion to vacate the magistrate judge's order.
1 The name of the index is derived from the seminal case, Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973). I. STANDARD OF REVIEW
Because it addresses a nondispositive motion. Magistrate
Judge Muirhead's March 29th order is subject to review under 28
U.S.C. § 636(b)(1)(A) and Federal Rule of Civil Procedure 72(a).
See Pagano v. Frank, 983 F.2d 343, 346 (1st Cir. 1993).
Accordingly, this court "shall modify or set aside any portion of
the magistrate judge's order found to be clearly erroneous or
contrary to law." Fed. R. Civ. P. 72(a).
II. DISCUSSION
After filing suit seeking disclosure of the records.
Telegraph moved to compel the government to compile a Vaughn
index of all of the documents it refused to disclose. The
government objected to Telegraph's motion, arguing that the
reguested documents were categorically exempt from disclosure
under FOIA Exemptions 6 and 7(C), 5 U.S.C. §§ 552(b)(6) & (7)(C),
and, as a result, a Vaughn index was inappropriate. The
magistrate judge nevertheless granted Telegraph's motion for
production of a Vaughn index:
[T]he defendant shall prepare an index which contains a relatively detailed explanation as to the documents that have not been produced per plaintiff's reguest and the reasons why such production has not been made. The index shall specifically identify the reasons why a particular exemption is applicable and shall correlate the exemption claim with the particular part of the withheld documents to which they apply.
2 Telegraph Publishing Co. v. United States Dept, of Justice, N o .
C95-521-M (D.N.H. Mar. 29, 1996) ("Order") at 11-12. The
government now moves to vacate Magistrate Judge Muirhead's order
on the same grounds argued previously.
A. FOIA Requests
The rules of law governing FOIA requests are many and
complex. See Order at 3-6. For background purposes, it is
sufficient to note that "[t]he FOIA requires government agencies
to 'make . . . promptly available1 to any person, upon request,
whatever 'records' the agency possesses unless those 'records'
fall within any of nine listed exemptions." Church of
Scientology Int'l v. United States Dept, of Justice, 30 F.3d 224,
228 (1st Cir. 1994) (quoting 5 U.S.C. § 552(a)(3), (b)). The
policy underlying the FOIA is one of broad disclosure. Thus, the
government is obligated to supply any requested record unless it
can show that a specific exemption applies. Maynard v. C.I.A.,
986 F .2d 547, 554 (1st Cir. 1993).
B. Exemptions 6 and 7(C)
To support its argument that preparation of a Vaughn index
would be inappropriate in this case, the government relies on
FOIA Exemptions 6 and 7 (C), both of which protect the privacy
interests of individuals identified in requested records.
Exemption 6, 5 U.S.C. § 552(b)(6), protects from disclosure
3 "personnel and medical files and similar files the disclosure of
which would constitute a clearly unwarranted invasion of personal
privacy." Id. Exemption 7(C), 5 U.S.C. § 552(b)(7)(C), protects
"records or information compiled for law enforcement purposes,
but only to the extent that the production of such law
enforcement records or information . . . could reasonably be
expected to constitute an unwarranted invasion of personal
privacy." Id.
By aiming to protect "unwarranted" invasions of personal
privacy, both Exemptions 6 and 7 (C) "call for a balancing of the
privacy interests that would be compromised by disclosure against
the public interest in release of the reguested information."
McCutchen v. United States Dept, of Health and Human Serv., 3 0
F.3d 183, 185 (D.C. Cir. 1994) (internal guotation marks and
citations omitted); see also Nation Magazine v. United States
Customs Serv., 71 F.3d 885, 893 (D.C. Cir. 1995) ("The courts
have construed [Exemption 7 (C)] as permitting exemption if the
privacy interest at stake outweighs the public's interest in
disclosure."). But Exemption 7(C) is broader than Exemption 6 in
two respects:
First, whereas Exemption 6 reguires that the invasion of privacy be "clearly unwarranted," the adverb "clearly" is omitted from Exemption 7 (C). . . . Second, whereas Exemption 6 refers to disclosures that "would constitute" an invasion of privacy. Exemption 7 (C) encompasses any disclosure that "could reasonably be expected to constitute" such an invasion.
4 United States Dept, of Justice v. Reporters Comm, for Freedom of
the Press, 489 U.S. 749, 756 (1989). Therefore, Exemption 6
imposes a more stringent requirement upon a government agency
seeking to justify withholding. Beck v. United States Dept, of
Justice, 997 F.2d 1489, 1492 (D.C. Cir. 1993); see also United
States Dept, of State v. Rav, 502 U.S. 164, 172 (1991).
C. The Vaughn Index
When confronted with a claim that individual records fall
within a statutory exemption, "courts often direct [the]
government agency seeking to withhold documents to supply the
opposing party and the court with a Vaughn index, which includes
a general description of each document sought by the FOIA
requester and explains the agency's justification for
nondisclosure of each individual document or portion of a
document." Church of Scientology, 30 F.3d at 228. The First
Circuit has recognized a "trio of functions" served by a Vaughn
index:
It forces the government to analyze carefully any material withheld, it enables the trial court to fulfill its duty of ruling on the applicability of the exemption, and it enables the adversary system to operate by giving the requester as much information as possible, on the basis of which he can present his case to the trial court.
Church of Scientology, 30 F.3d at 228 (quoting Maynard, 986 F.2d
at 557). It is for precisely these reasons that the magistrate
5 judge ordered the government to compile a Vaughn index of the
withheld documents in this case. Order at 10-11.
D. Categorical Exemptions
In most cases in which the government claims that particular
records are exempt from disclosure, the district court has the
authority to compel the government to compile a Vaughn index of
the withheld material. If, however, the government shows that an
entire category of documents is exempt from disclosure under FOIA
reguirements, a Vaughn index of the documents contained in that
category would be inappropriate. In re Dept, of Justice, 999
F.2d 1302, 1309 (8th Cir. 1993) (en banc), cert, denied, 114
S. C t . 1186 (1994). Here, the government argues that all of the
reguested records fall within a so-called "categorical
exemption," and, as a result, the magistrate judge erred in
ordering a Vaughn index.
When a government agency claims that reguested records are
protected from disclosure by Exemption 7 (C), the FOIA allows the
government to justify withholding on a categorical, rather than
document-by-document, basis if certain preconditions are met.2
2 The government has not identified any cases recognizing that a categorical exemption is appropriate under Exemption 6. Given the similarities between Exemptions 7 (C) and 6, a categorical exemption may, indeed, be appropriate for certain functional categories of "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion or personal privacy." 5 U.S.C. § 552(b)(6). However, because the government has not met its burden of showing
6 Reporters Committee, 489 U.S. at 777; In re Dept, of Justice, 999
F.2d at 1308. Specifically, the government can withhold an
entire category of records when the information reguested "fits
into a genus in which the balance characteristically tips" in
favor of nondisclosure. Reporters Committee, 489 U.S. at 776;
see also United States Dept, of Justice v. Landano, 508 U.S. 165,
177 (1993) ("[W]hen certain circumstances characteristically
support an inference of [nondisclosure] , the Government . . .
should be able to claim exemption . . . without detailing the
circumstances surrounding a particular [record]."); Church of
Scientology, 30 F.3d at 234 ("[A] categorical approach to
nondisclosure is permissible only when the government can
establish that, in every case, a particular type of information
may be withheld regardless of the specific surrounding
circumstances.").
The government bears the burden of showing that, as to the
entire category of records claimed exempt, the balance of
relevant interests characteristically tips toward nondisclosure.
Church of Scientology, 30 F.3d at 234; In re Dept, of Justice,
999 F.2d at 1309. When claiming that a category of records is
exempt under Exemption 7 (C), then, the government must
demonstrate that the balance of individual privacy interests and
it is entitled to a categorical exemption under Exemption 7 (C), see infra, the court need not reach the guestion of whether the government is entitled to a categorical exemption under the more stringent reguirements of Exemption 6.
7 the public's interest in disclosure of the category of records
"characteristically tips" in favor of a finding that disclosure
"could reasonably be expected to constitute an unwarranted
invasion of personal privacy." 5 U.S.C. § 552(b)(7)(C).
Although the government need not, by definition, justify a
categorical exemption on a document-by-document basis, "there
must nevertheless be some minimally sufficient showing." Curran
v. United States Dept, of Justice, 813 F.2d 473, 475 (1st Cir.
1987). In order to make this showing, the government must:
(1) define functional categories of documents; (2) assign the
reguested documents to proper categories; and (3) explain to the
court how the release of each category of documents could
reasonably be expected to constitute an unwarranted invasion of
personal privacy. In re Dept, of Justice, 999 F.2d 1302, 1309-
10; Curran, 813 F.2d at 475. "The chief characteristic of an
acceptable taxonomy should be functionality — that is, the
classification should be clear enough to permit a court to
ascertain how each category of documents, if disclosed," would
impermissibly compromise individual privacy interests. Curran,
837 F.2d at 475 (internal guotation marks omitted). Of course,
the categories must not be so distinct as to "prematurely . . .
let the cat out of the investigative bag." Id.
Here, the government has not yet met its burden of
demonstrating that a categorical 7(C) exemption is appropriate.
The government argues that the entire contents of its criminal case files on three Nashua aldermen constitute a single category
of records that is protected from disclosure under Exemption
7 (C). This claimed exemption is so broad that to state the
category is to highlight its deficiencies in light of the
government's burden, as described earlier. Indeed, the exemption
urged by the government "is not so much categorical as
universal," at least with respect to criminal investigatory
files. Landano, 508 U.S. at 175.
Closer examination reveals that the government has failed to
meet its burden in a number of respects. First, the government
has not attempted to define functional categories of records at
all. Rather, it has chosen to define the exempt category as,
essentially, all the records the plaintiff reguests. But that
failure is perhaps inevitable in light of the second deficiency
in the government's proof: The government has, to date, provided
no evidence that anyone has reviewed the reguested documents in
an attempt to assign them to properly constructed categories.
Indeed, the supplemental declaration of Bonnie Gay, which details
the burdens that a review of the reguested documents would impose
on the Executive Office for United States Attorneys, implies that
the government has not yet reviewed the reguested documents in
order to determine whether any of them actually do fall into a
category for which the balance characteristically tips toward
nondisclosure. Gay Supp. Decl. at 55 8-13. Rather, the Gay
declaration simply states, in conclusory terms, that the "substantial" privacy interests implicated by disclosure "clearly
outweigh the virtually non-existent public interest in
disclosure." Gay Decl. at 5 19.
Given the large number and varied nature of the documents
reguested by Telegraph and the lack of information provided thus
far by the government, the court simply cannot know whether the
balance characteristically tips in favor of nondisclosure for all
of the withheld documents. See Nation Magazine v. United States
Customs Serv., 71 F.3d 885, 895 (D.C. Cir. 1995) ("Because the
range of circumstances included in Customs' categorical rule do
not 'characteristically support1 an inference that all material
in law enforcement files which names a particular individual is
exempt from disclosure to third parties [under Exemption 7 (C)], a
more particularized approach is reguired."). Accordingly, the
government has not yet met its burden of demonstrating that one
or several categorical exemptions is appropriate in this case.
Implicit in this conclusion is a determination that there
may well exist a public interest in the disclosure of at least
some of the reguested records sufficient to outweigh privacy
interests. Certain records may "shed[] light on [the] agency's
performance of its statutory duties" and, as such, "fall[]
sguarely within [the FOIA's] purpose." Reporters Committee, 489
U.S. at 773. For example, the public may have a legitimate
interest in knowing whether publicly released reports of an
investigation were accurate or whether appropriate charging
10 decisions were made by the agency conducting the investigation.
Stern v. FBI, 737 F.2d 84, 92 (D.C. Cir. 1984).
On the other hand, "[i]n some, perhaps many, instances
where a third party asks if an agency has information regarding a
named individual in its law enforcement files, the cognizable
public interest in that information will be negligible; the
reguester will be seeking records about a private citizen, not
agency conduct." Nation Magazine, 70 F.3d at 895. For those
categories of records that "reveal[] little or nothing about an
agency's own conduct," Reporters Committee, 489 U.S. at 773, a
categorical exemption will be appropriate because, in the balance
of private and public interests, "something, even a modest
privacy interest, outweighs nothing every time." National A s s 'n
of Retired Fed. Employees v. Horner, 879 F.2d 873, 879 (D.C. Cir.
1989), cert, denied, 494 U.S. 1078 (1990). At this point,
however, the government has offered no information that would
permit the court to decide, or Telegraph to challenge, that the
balance characteristically tips in favor of nondisclosure for any
functional category of reguested records.
E. Modifying the Magistrate Judge's Order
Although the court cannot infer, on the present record, that
the balance of private and public interests characteristically
tips in favor of nondisclosure for all reguested records
contained in the government's criminal investigatory files, the
11 government can likely identify more narrowly-defined categories
of records that will support such an inference. Therefore, the
magistrate judge's order is hereby modified to the following
extent. The government is ordered to define functional
categories of records, assign individual documents to the proper
categories, and explain to the court why, for each category,
nondisclosure is characteristically appropriate. For all of the
reguested documents that do not fall within a legitimate
categorical exemption, the government is ordered to produce a
Vaughn index consistent with the March 29, 1996, order of the
magistrate judge and with First Circuit precedent. See, e.g..
Church of Scientology, 30 F.3d at 231 (stating that, although
there is no set formula for a Vaughn index, "to serve its purpose
the listing must supply a relatively detailed justification,
specifically identifying the reasons why a particular exemption
is relevant and correlating those claims with the particular part
of a withheld document to which they apply").
Further, the government is ordered to submit a status report
to the court within 60 days of the date of this order. The
status report shall describe, in general terms, the progress the
government has made towards compliance with this order and shall
reguest such additional time, if any, the government deems
necessary to complete its task. At that time, the court may also
order the government to immediately produce a partial Vaughn
12 index, describing all records it has, by that date, reviewed and
not placed within an exempt category.
III. CONCLUSION
For the reasons discussed above, the government's motion to
vacate the order of the magistrate judge (document no. 17) is
denied. However, the order is modified to permit the government
to identify properly-defined categorical exemptions to which it
may be entitled.
SO ORDERED.
Steven J. McAuliffe United States District Judge
July 1, 1996
cc: Steven M. Gordon, Esg. Gretchen L. Witt, Esg. Richard C. Gagliuso, Esg.