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,

(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

(b)(1)(A) and Federal Rule of Civil Procedure 72(a).

See Pagano v. Frank,

(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),

(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,

(1st Cir. 1994) (quoting

(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,

(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."

Exemption 7(C),

(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."

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.,

(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,

(1989). Therefore, Exemption 6

imposes a more stringent requirement upon a government agency

seeking to justify withholding. Beck v. United States Dept, of

Justice,

(D.C. Cir. 1993); see also United

States Dept, of State v. Rav,

(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,

. 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,

(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,

(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."

(b)(6). However, because the government has not met its burden of showing

6 Reporters Committee,

; In re Dept, of Justice,

. 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,

;

see also United States Dept, of Justice v. Landano,

(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,

("[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,

; In re Dept, of Justice,

. 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."

(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,

(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,

, 1309-

10; Curran,

. "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,

.

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.,

(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,

. 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,

(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,

, 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,

(D.C. Cir.

1989), cert, denied,

(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,

(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.

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