Summers v. Department of Justice , 140 F.3d 1077 ( 1998 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 8, 1998 Decided April 17, 1998
No. 97-5002
Anthony Summers,
Appellant
v.
Department of Justice,
Appellee
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 was on the briefs.
Melanie A. Pustay, Senior Counsel, United States Depart-
ment of Justice, 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 Williams.
Sentelle, Circuit Judge: In this case arising under the
Freedom of Information Act ("FOIA"), 5 U.S.C. s 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 grant-
ed 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. s 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 Vaughn index, setting forth its
justifications for refusing disclosure. The parties subse-
quently 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 submit-
ted 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, ap-
pears below:
THE DEPUTY CLERK: Civil Action 87-3168, Anthony
Summers v. Department of Jus-
tice. Mr. Lesar for the plain-
tiff, Melanie Pustay for the de-
fendant.
MR. LESAR: Good morning, Your Honor.
THE COURT: Good morning, ladies and gen-
tlemen. I have come to the
onclusion 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 re-
ally 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 affida-
vits, the documents that have
been withheld and the exemp-
tions claimed for them, and I
am satisfied that the exemp-
tions 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, fur-
ther release of documents, a lit-
tle 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 as-
sume that the court will be issu-
ing a written order?
THE COURT:I'm not going to write an opin-
ion, just a summary order, and
then you can reiterate every-
thing 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 govern-
ment.
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, non-
exempt 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 govern-
ment's proposed order verbatim, without waiting for Sum-
mers to file a response.
Summers filed a timely notice of appeal from the district
court's grant of summary judgment in favor of the govern-
ment.
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 grant-
ing 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 genu-
ine 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 con-
clusions 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
FOIA, enacted in 1966, reflects "a general philosophy of full
agency disclosure." United States Dep't of Defense v. FLRA,
510 U.S. 487, 494 (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. s 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, the statute contains nine exemptions
under which agencies may refuse to disclose requested infor-
mation. 5 U.S.C. s 552(b). These exemptions stem from
Congress's recognition that the release of certain information
may harm legitimate governmental or private interests.
When an agency declines to produce a requested document,
the agency bears the burden before the trial court of proving
the applicability of claimed statutory exemptions. 5 U.S.C.
s 552(a)(4)(B). To carry this burden, an agency must submit
a "Vaughn index" to explain why it has withheld information.
See Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973). The
Vaughn index "must adequately describe each withheld docu-
ment or deletion from a released document," and "must state
the exemption claimed for each deletion or withheld docu-
ment, and explain why the exemption is relevant." Founding
Church of Scientology v. Bell, 603 F.2d 945, 949 (D.C. Cir.
1979).
Under the FOIA, district courts reviewing agency decisions
must "determine the matter de novo, and may examine the
contents of [requested] agency records in camera to deter-
mine whether such records or any part thereof shall be
withheld under any of the [applicable] exemptions...." 5
U.S.C. s 552(a)(4)(B). If a district court determines that an
agency has withheld information improperly, the court may
order the agency to produce that information. Id. Each of the nine exemptions requires the withholding agency in the
first instance and the reviewing court in the second to make
distinct decisions as to factual questions. When the district
court reviews an agency's Vaughn index to verify the validity
of each claimed exemption, its determination resembles a
fact-finding process. Such a review usually, if not always,
comes in the context of cross-motions for summary judgment
which we then review de novo, which means "in the FOIA
context ... that we ascertain whether the agency has sus-
tained its burden of demonstrating that the documents re-
quested are not 'agency records' or are exempt from disclo-
sure under the FOIA." Gallant, 26 F.3d at 171 (quoting
United States Dep't of Justice v. Tax Analysts, 492 U.S. 136,
142 n.3 (1989)).
While the process of reviewing a Vaughn index and the
accompanying documents for fact-specific questions may be
an onerous one for a district court, it is at least triply so for
an appellate court. We do not underestimate the task of the
district judge in having to acquire access to reams of paper,
make intensive review of that material, and reach document-
specific conclusions. Nonetheless, for three judges to either
simultaneously or seriatim acquire and peruse the same docu-
ments and then attempt a collegial decision is still more
daunting. As the Ninth Circuit has put it, "[t]he appellate
court is particularly ill-equipped to conduct its own investiga-
tion into the propriety of claims for non-disclosure." Van
Bourg, Allen, Weinberg & Roger v. NLRB, 656 F.2d 1356,
1358 (9 th Cir. 1981) (citing Vaughn, supra).
In Vaughn, we recognized the burden placed upon the
district court when the government fails to establish with
sufficient specificity the basis of claimed exemption from
FOIA disclosure of specific documents. To alleviate that
burden, we established the requirement for a Vaughn index
so that a district judge could "examine and rule on each
element of the itemized list." 484 F.2d at 827. In so doing,
we further recognized that "[w]hen appealed, such an item-
ized ruling should be much more easily reviewed than would
be the case if the government agency were permitted to make
a generalized argument in favor of exemption." Id. When
the government has submitted such an itemized list, but the
district court has made only a generalized ruling, the burden
upon the district court has been (at least potentially) alleviat-
ed but the triple burden on the appellate court has not.
In recognition of the judicial efficiency to be gained by
requiring the district court to review the Vaughn index with
some specificity as we have required of the agency in its
filing, we determined in 1975 that it constitutes an "abuse of
discretion" for a district court "to deny a plaintiff's reasonable
request for clarification of an adverse summary judgment
order in an FOIA case." Schwartz v. Internal Revenue
Service, 511 F.2d 1303, 1307-08 (D.C. Cir. 1975). Further-
more, it is an abuse of discretion for the district court not to
make "specific findings of segregability regarding each of the
... documents" withheld in response to a FOIA application,
upon the plaintiff's reasonable request. Krikorian, 984 F.2d
at 467. The concerns of efficiency that apply to the question
of segregability vel non are relevant to all aspects of a
summary judgment upholding an agency's claimed exemp-
tions. We hold that the plaintiff's statement in the district
court assuming "that the court [would] be issuing a written
order" constituted a "reasonable request for clarification"
under Schwartz. We must therefore remand this controversy
as falling within the Schwartz exception to normal summary
judgment review process.
Later decisions of this and other circuits have reaffirmed
and clarified the Schwartz exception to Rule 52(a). See
Founding Church of Scientology, 603 F.2d at 950 ("District
Court decisions in FOIA cases must provide statements of
law that are both accurate and sufficiently detailed to estab-
lish that the careful de novo review prescribed by Congress
has in fact taken place."); Coastal States Gas Corp. v. De-
partment of Energy, 644 F.2d 969, 980 (3d Cir. 1981) (A
district court's obligation to state the legal basis for its
resolution of a FOIA summary judgment motion "is, in a
sense, implicit in the statutory duty of de novo review.").
Most similar to the present case is Truitt v. Department of
State, 897 F.2d 540 (D.C. Cir. 1990). In Truitt, as in the
present case, the agency from which the documents were
requested invoked several FOIA exemptions--in that case
five.1 In Truitt, the district court found "that the exemptions
claimed for the eight specific documents ... [were] appropri-
ately invoked and justified by the detailed descriptions given
of those documents." Id. at 547. We reversed, holding that
the district court's generalized treatment "leaves us unable to
engage in effective appellate review." Id. In the present
case, where there are thousands of documents, the district
court's generalized acceptance of the government's exemption
claims leaves us with the same inability.2
B
A brief review of the exemptions claimed and the nature of
the Hoover files starkly illustrates the reasons the Schwartz
rule is necessary for effective appellate review of complex
FOIA cases. Our comments in this review are not intended
to decide the questions which we raise, but only to highlight
the problems which the district judge should resolve before
this case is resumed at the trial level.
As we suggested above, the so-called "official and confiden-
tial" files were not kept in the FBI's central records system,
nor were they accessible by FBI personnel-at-large in the
regular course of their duties. All concerned generally agree
that Hoover maintained the files for his own purposes which
many, including the appellant, allege to have included improp-
________
1In the present case the FBI invokes either four or six, depend-
ing upon how one views the subsections of exemption 7.
2In fairness, there were more than eight documents in the Truitt
case also, but eight apparently was the number of sample docu-
ments sought for in camera review. 897 F.2d at 547 n.53. In the
present case, 500 selected documents made up the Vaughn index.
er ones. For example, Summers and other writers assert
that Hoover's system of secret files constituted an important
means of exercising power in the political arena. See gener-
ally Athan Theoharis, From the Secret Files of J. Edgar
Hoover (1991); and Anthony Summers, Official and Confiden-
tial: The Secret Life of J. Edgar Hoover (1993). Although
the government may not have formally conceded the breadth
of the allegations against the late Director, neither has it
contended that Summers's characterization of the files and
their reason for being is without basis in fact. It is against
that background that the district court must measure the
applicability of the asserted FOIA exemptions. As we noted
above, the FBI withheld documents under several FOIA
exemptions: specifically, exemptions 1, 2, 6, 7(C), 7(D), and
7(E). The district court did not address in its summary order
which exemptions it found to be applicable, therefore we
presume it approved them all. Likewise, in its supplemental
order, entered after the appellee called to the attention of the
court that a failure to specifically address segregability of
nonexempt material was reversible error under Krikorian,
the court only generally cited to 5 U.S.C. s 552. Therefore,
we will highlight a few of the fact-related inquiries necessary
to determine the applicability of each of the listed categories
of exemption. We intend our discussion to illustrate, not
exhaust, those matters that are better handled in the first
instance by a court designed for the processing of fact than
by a collegial court better equipped for review.
After establishing the general availability of agency rec-
ords, the FOIA provides that "this section does not apply to
matters that are" listed in subsections thereafter. 5 U.S.C.
s 552(b). The FBI submissions claim exemption of some
documents under subsection (b)(1), which exempts matters
that are
(A) specifically authorized under criteria established by
an Executive order to be kept secret in the interest of
national defense or foreign policy and (B) are in fact
properly classified pursuant to such Executive order.
5 U.S.C. s 552(b)(1). To justify exemption under this subsec-
tion, the government must establish compliance with an ap-
propriate Executive Order and proper classification pursuant
to that Order. See generally Baez v. United States Dep't of
Justice, 647 F.2d 1328, 1331-37 (D.C. Cir. 1980). As to the
documents before us, this analysis is complicated by an
apparent change in the applicable Executive Order between
the time of classification (apparently January or February of
1989 as to most of the documents) and the time of litigation.
The newer order, Executive Order No. 12,958, differs consid-
erably from its predecessor, Executive Order No. 12,356.
Significantly, the newer order is less restrictive, reflecting
what it refers to as "dramatic changes" in national security
concerns in the late 1980's following the United States' victo-
ry in the Cold War.
We are not able to tell from the record which of these
Executive Orders the district court construed in concluding
that material withheld under the exemption met its criteria.
While we accept the government's argument that "substantial
weight" must be accorded agency affidavits "concerning the
details of the classified status" of the records at issue, Kriko-
rian, 984 F.2d at 464, we are ill-equipped to determine
whether the district court properly concluded that those
affidavits carried the day without an express determination of
which order's criteria he used as his template. We offer this
"two-orders" problem only as illustrative and not exhaustive
of the decisions that the district court must make in order to
determine the applicability of exemption 1, and that we
expect all district courts to elucidate in cases of this complexi-
ty in order to provide a foundation for appellate review.
Exemption 2 arises from 5 U.S.C. s 552(b)(2), which ex-
empts from disclosure documents that are "related solely to
the internal personnel rules and practices of an agency."
While the FBI made but little use of this exemption in its
claims before the district court, and the parties do not
address it on appeal, it does appear in the FBI's original
claim. Because the district court did not sort out its accept-
ances and rejections, we would expect after remand to learn
what, if any, material is covered by that exemption and why
such material is covered.
Exemption 6, 5 U.S.C. s 552(b)(6), permits withholding of
material "the disclosure of which would constitute a clearly
unwarranted invasion of personal privacy." This exemption
and the exemptions under subsection 7 may most clearly
demonstrate that a single-judge trial court is better suited to
perform the FOIA analysis in the first instance than a
multiple-judge appellate court. In order to uphold a claim
under exemption 6, the reviewing court must balance the
individual's right to privacy against the public's interest in
disclosure. See, e.g., Department of the Air Force v. Rose,
425 U.S. 352, 372 (1976). To make this decision, the court
must determine, inter alia, the nature of the public's right to
know and the extent of the privacy interest involved. A
similar balancing approach extends to claims of exemption
under subsections (7)(A) and (C). United States Dep't of
Justice v. Reporters Committee, 489 U.S. 749, 776-80 (1989).
Significantly, for exemptions requiring such an analysis, the
Supreme Court has observed that the public interest rationale
of the FOIA "focuses on the citizens' right to be informed
about 'what their government is up to.' " Id. at 773. As the
appellant's FOIA request was designed to disclose miscon-
duct at the highest levels of the FBI, he rightly expects a
court to carefully assess that public interest in the balancing
process. We expect on remand that the district court will
provide a record of having done so.
On the other side of the balance, the privacy interests
involved in Hoover's files, or at least some of them, may not
be of the sort most esteemed by the statute. At oral argu-
ment, the government articulated a privacy interest purport-
edly involving the interest of individuals in not being known
to have associated with Hoover in his intelligence-collection
process. As the Supreme Court observed in Reporters Com-
mittee, "the privacy interest protected by Exemption 7(C) is
in fact at its apex" when the information sought "is in the
Government's control as a compilation, rather than as record
of 'what the Government is up to.' " Id. at 780. That being
the case, when, as here, the information is not a compilation
but rather a direct record of "what the government is up to,"
it would seem likely that any privacy interest is at its nadir.
Be that as it may, all of these inquiries are fact-intensive,
delicate, and far better suited in the first instance for the
ruminations of a single trial judge, expert at finding facts,
rather than for the deliberations of a three-judge committee
far more adept at finding fault.
Finally, subsection 7 exempts from the FOIA
records or information compiled for law enforcement
purposes, but only to the extent that the production of
such law enforcement records ... (C) could reasonably
be expected to constitute an unwarranted invasion of
personal privacy, (D) could reasonably be expected to
disclose the identity of a confidential source, including a
State, local, or foreign agency or authority or any private
institution which furnished information on a confidential
basis, ... [or] (E) would disclose techniques and proce-
dures for law enforcement investigations or prosecutions,
or would disclose guidelines for law enforcement investi-
gations or prosecutions, if such disclosure could reason-
ably be expected to risk circumvention of the law....
5 U.S.C. s 552(b)(7). As we have already noted, our review
of the district court's interest-balancing under exemptions 6
and 7(C) requires that it fully articulate the balance it reach-
es; in addition, all three sections of exemption 7 suggest
additional fact-intensive tasks which the district court must
perform if our review is to be both efficient and meaningful.
At the very threshold of section 7 exemption, the government
must show that the withheld material consists of "records or
information compiled for law enforcement purposes." Usual-
ly that question might be readily determined without the
creation of an extensive record. In this case, if the United
States is to establish that files kept in the office of the
director in Washington and not readily available to field
agents constitute law enforcement records or information for
FOIA purposes, then we would expect a clear demonstration
of how it has met that burden. Similarly, we would expect a
showing as to records exempted under 7(D) of how the
persons protected are "confidential sources" within the mean-
ing of the statute. On remand, the district court should
record why it concluded that the government met this bur-
den.
Again, the matters discussed in this section of our opinion
are offered as illustrative and not exhaustive of the type of
problem ill-suited to explication in the first instance by an
appellate court. Presumably, a first review by a district
court would not only provide gains in efficiency of any ulti-
mate review, but it might be expected to truncate or even
eliminate such review. That is, when a district court ade-
quately explains its ruling, the losing party might be con-
vinced that the district court is correct, or at least has not
fallen into reversible error, as to some or all of the matters in
controversy, and therefore bring such matters to rest at a
much earlier stage and at much less cost to the system.
III. Conclusion
For the foregoing reasons, we conclude that the record is
not adequate for us to afford proper review to the summary
judgment entered below. For that reason, we order that the
judgment be vacated and this case remanded for further
proceedings consistent with this opinion. In so doing, we
note that this matter has lingered long in the court system
and express the hope that it may be resolved before the
passage of too much more time.
So ordered.
Silberman, Circuit Judge, concurring: I find myself in a
rather strange situation in this case because, unlike the
district judge, I have in a sense reviewed Hoover's official and
confidential files "in camera," but did so almost 25 years ago
as the Deputy Attorney General (and Acting Attorney Gener-
al) of the United States. The Washington Post caused an
uproar when it revealed their existence in early 1975, and I
was obliged to read them in preparation for testimony before
the House Judiciary Committee. Strangely, although the
Washington Post knew about the files (and may well have
known about them for some time) senior officials in the
Justice Department did not. Even Clarence Kelley, then-
Director of the FBI, never realized that the file cabinets in
his outer office contained the long-rumored secret files of J.
Edgar Hoover.1
As is now generally known, the files revealed that Hoover,
through bureau agents, had collected over many years scan-
dalous material on public figures to be used for political
blackmail. They also contained shocking information as to
how the FBI had been used by several Presidents, most
notably Lyndon Johnson, as a political investigative unit to
gather dirt on political opponents. The Bureau even sought
to accommodate President Johnson by frustrating at least one
criminal investigation that would prove politically embarrass-
ing--and subsequently informing the White House as to the
identity of Treasury officials who aided the investigation.
There can be no doubt that these documents as a group are
of the very highest public interest. The public concern over
presidential misuses of power has been amply demonstrated
by the Act of Congress ensuring that "Watergate" material
from the Nixon White House be preserved and disclosed.
Indeed, these files may well cast some light on Watergate's
genesis. I suspect that Richard Nixon, who was reputed to
have threatened darkly during the Watergate investigation to
expose the misdeeds of prior Presidents (and probably wished
that the Post story had appeared a year earlier), was prompt-
________
1 That is not to say that I am confident that all of Hoover's files
were in those cabinets.
ed to gather political intelligence through private actors be-
cause he wanted what Johnson had obtained, yet did not trust
the FBI to provide it. Although the Bureau had the unmiti-
gated gall to claim in an affidavit before the district court that
the files "are of minimal public interest," counsel for the
government at least conceded at oral argument that the
public interest in the documents was high.
Turning to the other side of the equation, targets of the
FBI's dirt-gathering activities may have an overwhelming
privacy interest. The FBI, however, has made no reasonable
effort to determine whether these targets are now dead or
alive. If they are deceased, their privacy interest is almost
certainly diminished. And even for those who are alive, the
privacy interest may vary. Those who were investigated to
determine their political connections to Robert Kennedy--
whether President Johnson's White House staffers or certain
newspaper owners--might be rather proud to have been
targeted. Those who provided information to Hoover, inside
and outside government, which was not for law enforcement
purposes, are not, in my view, at all entitled to privacy. The
government seems to have taken the position in this case that
anyone, including those in the news media, who gave Hoover
or the FBI information about potential political enemies is
entitled to protection from exposure. I think that is absurd;
that the statute explicitly protects law enforcement confiden-
tial sources implies that non-law enforcement sources--here,
confidential sources of political information ("Hoover Friend-
lies")--are not protected. To be sure, some of the material in
the files may have been collected originally for law enforce-
ment purposes and therefore should be treated as such, but
having read the files I can confidently state that they were
not, repeat not, compiled for enforcement. The government
should not be allowed to claim the law enforcement privilege
merely by asserting that a file or document contains descrip-
tions of conduct that would be a crime under some law,
somewhere.
We are remanding to the district court and urging it to
proceed with alacrity. I know how busy our district judges
are and how formidable a pile of material this case presents,
but I urge Judge Jackson to read in camera as much of these
files as he can so that he will fully understand the enormous
public interest in these materials. Given their importance, I
would hope senior officials in the Justice Department, rather
than just an Assistant United States Attorney, would also
review the files. That could expedite proceedings.
Williams, Circuit Judge, concurring: I concur but wish to
add that one of the obstacles to granting the government's
motion for summary judgment may be that its affidavits are
obscure about how much effort it makes to find out if the
persons whose privacy it invokes are alive or dead. The
affidavit of Special Agent Llewellyn says that the Bureau did
not invoke either of the privacy exemptions (6 or 7(C)) if "the
FBI had knowledge from the responsive files or independent-
ly that a person is deceased." That of Special Agent Super-
neau similarly says that she did not withhold information
relating exclusively to "individuals that I know to be de-
ceased." It would seem to be consistent with these affidavits
that the agents have been completely passive on the issue,
taking death into account only if the fact has happened to
swim into their line of vision. If that is true, there would be a
question whether the Bureau's invocation of the privacy inter-
est represented a reasonable response to the FOIA request,
at least if the Bureau has, or has ready access to, data bases
that could resolve the issue.