ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (Civil Action No. 79-4047)
Before Adams and Garth, Circuit Judges and Dumbauld, District Judge.*fn*
Anthony Lame appeals from the district court's entry of summary judgment for the United States Department of Justice in his action under the Freedom of Information Act. The district court held that the complete text of all the documents that Lame sought were exempt from FOIA disclosure. We hold that the district court did not utilize proper procedures in determining which documents or which portion of documents were exempt. Thus, its ruling based on inadequate submissions cannot be sustained. Accordingly, we reverse and remand.
Anthony Lame, the manager of an investigative reporting unit for a television station, planned to write a book concerning the "new" FBI. The book was to focus on the successful federal prosecution of Representative Herbert Fineman and Senator Henry J. Cianfrani, both former members of the legislature of the Commonwealth of Pennsylvania.*fn1 On November 10, 1978 Lame requested access to the files that the United States Department of Justice maintained on the two prosecutions. Thereafter, he narrowed his request to include only Federal Bureau of Investigation FD-302 Forms ("forms utilized by the FBI to record information which may later become testimony" Toole affidavit, App. at 125a) reflecting interviews with individuals who, for the most part, he named.*fn2
The FBI answered that it was unable to respond until Lame obtained and submitted notarized authorizations of the individuals whose FD-302s he sought. Lame refused to submit authorizations. Instead he demanded that the FBI rule on his request without them. The FBI informed Lame on March 7, 1979 that all the materials he sought were exempt from disclosure under 5 U.S.C. §§ 552(b)(7) (C) (unwarranted invasion of privacy exemption) and (7)(D) (confidential source and confidential information exemption).*fn3 Lame took an administrative appeal to the Department of Justice, but the Office of Privacy and Information Appeals of that department affirmed the FBI's initial decision.
Lame then filed a complaint in the United States District Court for the Eastern District of Pennsylvania on November 7, 1979, seeking the release of the requested documents. Subsequently, Lame filed three sets of Interrogatories and two Requests for Production of Documents.
The government refused to supply any of the information Lame was seeking. Accordingly, Lame moved to compel discovery and the FBI moved for a protective order. The district court did not rule on either of these motions.
Both Lame and the government then filed motions for summary judgment. Attached to the government's motion was an affidavit of FBI Special Agent Daniel Toole (App. at 122a). Toole refused to confirm or deny the existence of the FD-302s sought by Lame, and set forth his reasons why he believed the information sought was exempt.
Lame submitted an affidavit with his motion for summary judgment. He explained that he had compiled the list of individuals whose 302s he desired by having reviewed the transcript of the trial of Representative Herbert Fineman and the related prosecution of Martin Abrams, and by having examined the Change of Plea Memorandum filed in the Senator Henry J. Cianfrani prosecution. A copy of the Cianfrani Change of Plea Memorandum was appended to Lame's affidavit. Lame's memorandum of law essentially maintained that since most of the information he sought was already public, the privacy and confidentiality exemptions should not preclude disclosure.
After oral argument the district court found this record inadequate on which to decide the summary judgment motions, and on June 24, 1980 granted the government thirty days in which to supplement the record.
The government then submitted an in camera affidavit to which several 302 forms were attached.*fn4 The in camera affidavit repeated the government's legal claims of exemption under §§ 552(b)(7)(C) and (7)(D). The affidavit also discussed in general terms the FBI's position that disclosure would invade the privacy of named individuals, as well as the privacy of third parties mentioned. It claimed that in order to obtain the 302 interviews, assurances either express or implied, had been given to the interviewees that there would be no indiscriminate release to the public of their identities. The affidavit then specifically discussed the sample 302s attached to the affidavit.
On this record, the district court granted summary judgment for the government. The court first treated the privacy exception, balancing the public interest in learning about FBI techniques, against the embarrassment, harassment, and risk to personal safety that revelation of an interviewee's role might cause. The district court found it "highly relevant" that the material sought by Lame, or its equivalent, was to a large degree available by other means. It concluded that the privacy interests outweighed the public interest in disclosure and accordingly held that the 7(C) exemption was "properly asserted".
The district court next held that the 7(D) confidential source exemption was also applicable. The court failed to find whether the FBI had made express assurances of confidentiality or whether under the circumstances, assurances of confidentiality could reasonably be inferred. Maroscia v. Levi, 569 F.2d 1000, 1002 (7th Cir. 1977). On the record before it, the district court held that the government had met its burden of proving that the requested material was exempt from production.
Lame appeals, arguing that the procedure utilized by the district court was improper, and that the district court had erred in finding that the privacy and confidentiality exemptions were applicable. The government responds that the material sought was uniformly exempt, and accordingly that the procedure followed by the district court was proper because any further disclosure would reveal exempt information.
We turn first to an examination of the basic procedures to be used in Freedom of Information Act cases. We also examine the nature of the Section 7(C) and (D) exemptions in order to determine the merits of Lame's claim that the procedure employed by the district court were improper.
Underlying the Freedom of Information Act, as we recently noted in Coastal Gas Corp. v. Department of Energy, 644 F.2d 969 (3d Cir. 1981), is a belief that "an informed electorate is vital to the proper operation of a democracy." Id., at 974, quoting S.Rep.No.813, 89th Cong., 1st Sess. 3 (1965). Upon an appropriate FOIA request, federal agencies are therefore required to release promptly the information requested that is in their possession, subject to nine statutory exemptions. If the agency has failed to release the requested information, and administrative appeals have been exhausted, the individual seeking disclosure can obtain review of the agency's denial in a federal district court. Review is de novo and the Act places the burden of establishing that the requested materials are exempt from disclosure upon the agency. 5 U.S.C. § 552(a)(4)(B). Any reasonably segregable, non-exempt portion of a record is to be made available to the person requesting that record. Id.
The District of Columbia Circuit has developed FOIA procedures designed to allow informed adversarial argument, promote efficient judicial review at both the trial and appellate levels, and discourage conclusory claims of exemption. In the ordinary case, the agency must provide a detailed public justification for its claims of exemption. This justification must be accompanied by an index that "would correlate statements made in the Government's refusal justification with the actual portions of the document." Vaughn v. Rosen, 157 U.S. App. D.C. 340, 484 F.2d 820, 827 (D.C.Cir.1973) cert. denied, 415 U.S. 977, 94 S. Ct. 1564, 39 L. Ed. 2d 873 (1979). There is support for the Vaughn procedures in the legislative history, see S.Rep. No. 93-854, 93d Cong. 2d Sess. 15 (1974) and they have been adopted by our court, see Ferri v. Bell, 645 F.2d 1213, 1222 (3d Cir. 1981); Coastal States Gas Corp. v. Department of Energy, 644 F.2d 969 (3d Cir. 1981). After the legal and factual issues in dispute have been put in focus by this procedure, the district court may still have to engage in an in camera inspection to determine whether the "records or any part thereof shall be withheld." 5 U.S.C. § 552(a)(4)(B) (1976). See Ferri v. Bell, supra, 645 F.2d at 1222.
In an unusual case the agency may not be able to provide the detailed index which Vaughn requires because such an index could reveal the very information that the agency claims is protected from disclosure. The agency, however, must still provide a "public affidavit explaining in as much detail as possible" the basis for the claimed exemption. Phillippi v. Central Intelligence Agency, 178 U.S. App. D.C. 243, 546 F.2d 1009, 1013 (D.C.Cir.1976). Obviously, the in camera procedure assumes greater importance when the public affidavit relies on generalities and provides little detail.
In Phillippi the requester sought records concerning the efforts of the CIA to convince the news media to withhold publishing their knowledge of the Glomar Explorer project. The CIA claimed it could not admit or deny the existence of the records sought because any connection of the CIA with the Glomar Explorer was itself exempt information. The district court granted summary judgment for the government based on two in camera affidavits along with a public affidavit by the CIA which was filed in support of the CIA's motion to have all material related to the case submitted to the court in camera. The Court of Appeals held that in the peculiar context of that case, where the government could neither confirm nor deny the existence of the documents, the use of in camera affidavits was proper. The court cautioned that before the district court should resort to the in camera examination, it should first:
require the Agency to provide a public affidavit explaining in as much detail as is possible the basis for its claim that it can be required neither to confirm nor to deny the existence of the requested records. The Agency's arguments should then be subject to testing by appellant, who should be allowed to seek appropriate discovery when necessary to clarify the Agency's position or to identify the procedures by which that position was established. Only after the issues have been identified by this process should the District Court, if necessary, consider arguments or information which the Agency is unable to make public.
Id. at 1013 (footnote omitted).
The Phillippi court then remanded to the district court because the appellant had not been given an opportunity to engage in appropriate discovery, and because the public affidavit had been prepared for another case, not for Phillippi. We approved the Phillippi standard in Ferri:
And if the agency is unable to articulate publicly the specific disclosure it fears and the specific harm that would ensue, then in camera inspection of a more detailed affidavit must be resorted to. See Phillippi v. Central Intelligence Agency, supra, 546 F.2d at 1013.
In sum, under ordinary circumstances a Vaughn index correlating justifications for non-disclosure with the particular portions of the documents requested, will generally suffice to narrow the disputed issues and permit a reasoned disposition by the district court. In a special circumstance such as the one presented by Phillippi, the public response by the government may of necessity be limited to an argument as to why no detailed information may be provided publicly. Such a response will alert the requester and the court to the bases on which the government is resisting disclosure so that, at the least, the government's theory may be contested by the requester. In both the ordinary and the exceptional case, in camera affidavits and submissions are authorized and the district court may resort to them in arriving at its ultimate determination. In both instances, the district court must have furnished to it, in whatever form, public or private, all of the detailed justifications advanced ...