Joseph Alan Lykins v. United States Department of Justice and Attorney General of the United States

Virginiа (hereinafter referred to as the WRIGHT, Before WALD and ED- “Virginia Court”). District The Commis- WARDS, Judges. Circuit sion withheld the on entire ground that it was a court document rather Opinion for court filed Circuit by record, than an agency and that it therefore Judge J. WRIGHT. SKELLY was not FOIA. See U.S.C. 552(a)(3) (4)(B) (1982) (providing & § dissenting in Opinion part concurring agencies make records” “agency available part by Judge filed HARRY Circuit T. granting District Courts EDWARDS. authority to order production “agency WRIGHT, J. Judge: SKELLY Circuit improperly withheld”). records In this Freedom of Information Act (2) (the Portions a letter “Benoit let- (FOIA) prisoner- ter”) federal from Probation Thyra Officer Benoit —a sought relief in for the District Court a Parole Commission employee, dated March 1981. The alleges refusal of the United Parole Com- Commission States that disclosure of mission the еxcised portions to release three documents him: the letter would the identity reveal of a his a report, few lines excised source, confidential and those portions are from a by probation letter written officer privileged Exemptions 7(C) therefore to the Commission, and a re- psychological (D) FOIA. U.S.C. port written about him. The District Court 552(b)(7)(C) (D) (1982).1 & granted the Commission’s motion for sum- mary judgment appellant’s and dismissed (3) A “psychological test screening re- opinion suit. In this we reverse the District port” (hereinafter referred to the “psy- Court with re- chological report”), dated December port and the psychological report, af- 1977, and prepared by the Bureau of Pris- firm the District Court’s ons staff. This was its withheld in Commission did not have release the entirety Exemptions under FOIA 5 and 7(C), material excised from the letter. 552(b)(5) (7)(C) (1982),2 5 U.S.C. § & here, provisions only 1. Insofar as relevant dential information furnished the confi- * * apply “investigato- FOIA state that does not dential source ry compiled pur- for records law enforcement poses, produc- but to the extent that the 552(b)(5) 2. Section excludes from FOIA “inter- ** * (C) tion of such records would constitute intra-agency let- memorandums or personal privacy, an unwarranted invasion ters which would not be available party law to a (D) identity disclose the of a [or] confidential litigation other than an and, compiled by source the case of a record agency[.].” portions The relevant authority law a criminal enforcement 552(b)(7)(C) quoted supra. note 1 * * * investigation, course оf criminal confi- withheld”). improperly records “agency would be ground that disclosure on the that, re- on appellant's part court also held based in potentially disruptive programs. to institutional sponse Marble information in the camera affidavit, were the Benoit letter pro- Meanwhile, as the Commission urged for reasons FOIA exempt from filed cessing request, appellant appellant’s government. Finally, court held by the the District Court complaint in that, again on in camera re- based (hereinafter District Columbia affidavit, Court”) on Janu- ferred as “D.C. 22, 1982 he February 1982. On ary the FOIA also came within summary judgment, moved government. Appellant here by the urged for sum- filed cross-motion government holdings.3 of these challenges all mary judgment May its motion with accompanied Report II. The Presentence Ana- Marble, Chief Case of Linda affidavits Justice, Dep’t In v. U.S. Carson Appeals for National Board the lyst (hereinafter “public (D.C.Cir.1980), the this court held Commission 631 F.2d 1008 Parole Torrans, Chief affidavit”), Billy and Marble presentence report agency is an that a Virginia District Officer for the Probation In for of FOIA. purposes affidavit”). (hereinafter the “Torrans Court the ignores rationale the Parole Commission hearing held a on The D.C. District Court once underlying our Carson decision and (in appellant’s 23 absence be- September rejected we again argument the advances and liti- appellant cause was incarcerated Carson; argument reduces to appellees’ se), which the pro his FOIA case gating that, рresentence because re the assertion supplemental affidavit requested court (which ports originate the courts not the psy- the Benoit letter and concerning FOIA), originating the “agencies” under 8 the chological report. On October may under current law continue to court submitted a second affidavit of report after has been turned control the (hereinafter the “in camera Linda Marble the Parole Commission. Under over to complete affidavit”), along with CIA, 607 principles developed Goland psycho- copies of the Benoit letter vacated in on (D.C.Cir.1978), F.2d 339 logical report. grounds, (D.C.Cir.1979), 607 F.2d 367 other 27, 1982 the On October D.C. 927, 100 1312, denied, 63 445 S.Ct. cert. opinion entered a memorandum would be (1980), such control L.Ed.2d granting government’s motion order rеport a “court sufficient to make The court held that judgment. summary record,” “agency record,” an rather than report agency presentence scope thus of FOIA. Fur outside How- thus to FOIA. record and thermore, and the D.C. District appellees ever, that, the Vir- the court held because Court seem to believe that presentence Court “considers ginia District over District Court’s assertions control documents which confidential court if report, not sufficient presentence it loans to Parole Commission record, status of deny carry out stat- enable the Commission nonetheless be sufficient to make should function,” ‍‌‌​‌​‌‌​‌​​​‌​‌‌​​‌‌​​​‌​‌​‌‌​‌‌‌‌‌‌​​​‌​‌‌​​‌​‌‍Opinion Memorandum utory withholding the Parole Commission’s (October Action No. 82-241 D.D.C.Civil of this “improper.” result 1982) (Dist.Ct.Op.) at Appendix (JA) Joint reasoning line of would be same as the “improp- had not the Parole Commission rejected presen we in Carson: result meaning within the withheld it erly” beyond scope tence would be 552(a)(4)(B) (1982) (granting Dis- U.S.C. § authority to order release FOIA. Courts trict any Privacy allegations rejected not raise Act issues also does The District Court argument appeal, complaint on the District appellant’s he in his brief or was entitled pursuant Privacy these issues are not before decisions on of the materials Court’s some (1982). court. 552a Because Act U.S.C. reaffirm our decision “agencies” purposes

We here Carson: of FOIA. the hands of 551(1)(B) (1982). the U.S.C. The Carson Parole under current law is an approved Commission court neither nor disapproved the result, purposes record fоr of FOIA. We Cook but held law concern- reject reject- we again arguments ing once the use of presentence reports had ed in we decline to enter- changed Carson and also substantially in two since ways guise arguments First, tain these under the of a 32(c) time of Cook. Rule of the Fed- of what is an “improper” discussion with- eral required Rules Criminal Procedure We our holding. believe that Carson deci- sentencing courts to disclose much of the sion enough points. was clear presentence reports contents of to request- remain, hope if doubts ing imposing defendants before sentence. that our finally discussion here settles the provision This been had added in status of reports under FOIA. had “substantially sentencing dilute[d] presentence report.” court’s control over the A. Agency Records Carson, supra, 631 F.2d at 1012. Second— CIA, In and more supra, importantly Congress Goland v. this court grap- — pled recently given with the the Parole problem of what constitutes Commission im- “agency portant responsibilities purposes record” for to pre- FOIA. reports. sentence Goland CIA had refused release The Parole Commission concerning Act, records legislative history Reorganization 94-233, Pub.L. organic the CIA’s statutes. This court had required af- the Parole Commis- Stat. ground firmed the refusal on the presentence that the sion to reports use making (a sought transcript determinations, document of a secret parole see 18 U.S.C. 4207 § Representatives hearing) House (1982), was had required courts to transmit congressional document rather than an reports the the Parole Commission for The agency record. court purposes, 4205(e). Goland stated see id. The stat- appropriate that the test to determine ute had required also the Parole Commis- agency whether a document was an grant requesting sion to prisoners “reasona- record was “whether under all the facts ble to presentence reports access” in most the case passed 4208(b). the document has from the id. cases. See Because the pre- Congress property control of and become reports sentence thus had come to serve an subject disposition agency to the free important the function in the Commission’s de- cisionmaking which the document resides.” process, the court Carson con- F.2d at 347. the cluded that Commission exercised con- reports. siderable control over the There- applied Carson the to presen- Goland test fore, Goland, reports under the were as a reports. Circuit, tence The 10th v. Cook law matter of to be considered agency (10th Willingham, Cir.1968) 400 F.2d 885 records.4 curiam), (per had held with little discussion that presentence reports agency are not important It is to emphasize scope records, on the ground that such the Carson Nowhere in holding. Carson is courts, were prepared which are not so there much as a hint that the history of that, government argues contrary sentencing ability

4. The to the court’s forbid the defend- court, the Carson languagе report conclusion copy ant to retain after sentenc- 32(c) against Rule fact militates conclu- ing. appellees Carson Brief n. 3. The report sion reached there —that a court, result, reaching necessarily dis- agency points is an record. The that, argument. posed of this But note even language 32(c) out that the amended of Rule holding today, under our the court’s discretion requires judge that a disclose to a defendant require part report return of or all of the presentence report impos- much of the before For, nullity. report far if the from even an sentence, ing requires still all but return of thereby record, discoverable; agency it is not copies court, report “unless in its remains, possibility recognized, as Carson discretion!,] permits.” govern- otherwise report may that all or remain confi- argues report ment that hold the discover- exemptions. dential under FOIA’s meaningless able under FOIA would render that, presentence report although the hold ques- the particular presentence record, it not been “im agency on the court’s decision. was an any bearing tion had law, Dist.Ct.Op. at that the withheld. See Rather, properly” Carson court held concerning presen- a Delaware Dis Sylvania JA 79. GTE usage, as the well injunction had issued an forbid the Parole Commission trict Court reports gave tence Safety Under Go- Com over them.5 the Consumer Products ding considerable control course, land, (CPSC) releasing existence of control certain docu mission intо records agency injunction the documents After the public. made ments issued, filed a FOIA. Consumers Union suit was seeking release of D.C. District Court originating argue here Appellees defense in under FOIA. CPSC’s documents so restrict use of a entity may improperly was that it had not that suit it sends to an covered documents, its with because withheld that the document remains under the to the Del merely obedience never originating agency control of Supreme court Court aware order. record. In this case the becomes with agreed agency’s CPSC affidavit claims that it the Vir- Torrans improper; holding of the documents was ginia “policy” District Court’s “[a]ll “impropriety” prerequisite such is a since to be loaned to are deemed Presentences to order relеase of documents a court and Bureau Pris- Parole Commission FOIA, Reporters Kissinger see enable out their offi- carry ons to them Press, 445 for Freedom of the Committee functions, returned to the cial and should be 100 S.Ct. L.Ed.2d use, such Court after [Virginia District] held (1980), Supreme upon request. Disclosure of Presentence grant could not such D.C. District Court Reports has authorized so far as been relief. 4208(b)(2).” comply with U.S.C. [§] Virginia JA According appellees, Court, According the D.C. District en- policy District Court's assertion of forbidding “policy” presen- it to control over the abled retain presen the Parole Commission to release tence when transferred injunction reports analogous to the tence to Parole the Commission. by that was issued the Delaware District in GTE the rea Sylvania. Court Carson, appel In the of we find face fact undermines soning Sylvania of GTE merit. argument lees’ to be without Given holding. District Court’s As the reports serve D.C. presentence functions that noted, congres Sylvania Court GTE was an usage Supreme accord with actual enactment, Virginia sional District of the “established doctrine that application of were irrelevant subject Court’s assertions control is persons injunctive to an order whether purposes determining of jurisdiction are by expect sued a court with agency was an record. is modified or obey ed to that decree until it Carson, As held in the fact is that we reversed, grounds they proper even if have its Virginia policy District Court —whatever 386,100 at object to to the order.” 445 U.S. pre not and cannot control may be—does 1201. The rationale of that deci S.Ct. at it turned reports sentence after has them sion, in such well-known cases as elucidated the Parole Commission. over to Workers, Mine United States v. United 91 L.Ed. 330 U.S. S.Ct. Improperly B. Withheld (1947), Birmingham, v. City and Walker of 314-321, 87 1828- District Court relied on S.Ct. The D.C. GTE Union, (1967), is that 18 L.Ed.2d 1210 those Inc. v. Consumers 445 U.S. Sylvania, expected to 375, 100 (1980), object to a court order are S.Ct. 63 L.Ed.2d who every dispositive in case. be mis- It is true that Goland had referred to It would a 5. “all formulating language pos- the control to read this to foreclose the facts of case” take usage using sibility types By See 607 F.2d at 347. law and make certain this lan- test. records, regardless evidently point guage, mi- of the court intended out of documents particular particular indiсia of control nor factual variations cases. that no will be by make their means of the override objection appellant’s right rules under FOIA to which procedures accord with see report. may Whatever pow- judicial system operates, for a court’s abili- er of the District Virginia Court to order its ty procedures to command adherence to its own on “policies” business the basis of character, disputes depends to resolve its abili- court cannot articu- ty compel obedience to orders properly lating its desires on its own motion deter- procedures provide issued. Those rules and mine the rights parties third not before object a fair it opportunity appeal jurisdiction. over whom it has no rulings, mistaken and еven interested indi- consequence accepting the D.C. parties proceed- viduals who are not to the District Court’s understanding of Syl- GTE ings have opportunity to intervene un- again vania would be once to let in through der the modern Federal Rules Civil Pro- arguments rejected back door the See, e.g., cedure. Fed.R.Civ.P. Virginia Carson. The “poli- District Court’s however, case, relevant, all, In cy” there were no for- if at the question judicial mal no proceedings, opportunity for whether it has retained control pre- ‍‌‌​‌​‌‌​‌​​​‌​‌‌​​‌‌​​​‌​‌​‌‌​‌‌‌‌‌‌​​​‌​‌‌​​‌​‌‍object Mr. Lykins “policy,” to the court’s sentence and thus prevented intervention, no chance for and no becoming concrete an agency subject controversy above, case or Virginia before the Dis- FOIA. As we discussed in Carson trict In very Court.6 we answered that question holding that circumstances — Sylvania’s different from GTE formal in- cannot so retain control. junction proceeding issued after a inquiry to which The into whether a document Consumers Union could have easily “improperly” become withheld is very different Virginia party “poli- inquiry, directed .not desires —the cy” greater originating (whether deserves no deference than the court, it be a expressed governmen- desires of other or other Congress, governmental body not body. tal To the extent by FOIA), Parole covered but at the question Commission has control of competent jurisdiction whether court of we held “poli- in Carson —the over parties matter and over the —as Virginia cies” of the District Court do not injunction.7 has issued a valid Considera- fact, evidently way outsiders had no issued as a of a concrete case or knowing supposed “policy” controversy until some before the court. And if the Vir- (long ginia jurisdiction Lykins’ time in March District Court had after re- issue injunction port binding Commission, had been the Parole transmitted to the Parole Com- mission) “order” when the therefore cannot be the kind District Court be- withholding gan stamping presentence would make Commission’s released to agencies “proper” Sylvania. stating stamp under GTE other “policy” with a rubber confidentiality. affidavit, support Torrans United Mine Workers lends no holdings JA injunc- 61. Given our in this it is claim that the “order” here awas valid presence unyielding clear that the or deserving absence the rubber tion of the obedience that Lykins’ stamp presentence report Supreme required own is Court in that case. For holding irrelevant. In accord with our principle Carson of United Mine Workers is not here, stamp any re-affirmed pronouncement regardless the rubber would have that of a court — keep becoming to failed agency from jurisdic- an whether the court has matter very secrecy record. tion or whether is an there Article III case or Virginia “policy” controversy District absolutely Court’s illustrates be followed —must why “policy” upon penalty contempt Rather, one reason is not entitled to of a citation. undeviating Supreme the kind of obedience the proposi- the case stands for the more modest jurisdiction Court ordered in Mine Workers аnd Walker. tion that a court has inherent to jurisdiction own in determine its post-argument govern- In a submission the order it issues while it makes this “policy” 290, binding. has ment informed us that the is determination See 330 U.S. at 292-293, Virginia District Court now in an enshrined S.Ct. at 695. There Virginia “order” dated December 1983. The issuance that the or- indication der analysis anything of this order or does affect our our to do with concrete case it, presentence report being controversy conclusion that improperly before and United Mine Virginia The withheld. District therefore cloaks it with no additional Workers course, text, injunction dignity. Court’s “order” was not as we in we are Of questioning state Sylvania, Virginia ability kind at issue in GTE because was not here differ- report merit somewhat of the Go- application relevant to tions ever, we affirm if and what follows rarely, analyses, test would ent land control to respect juris- holding into the Court’s inquiry to the latter the District relevant to transform letter of a court. We refuse Benoit and reverse diction inquiry opportunity psychological report. into an the latter of control issues parties re-litigate Benoit Letter The A. re- properly that should be over documents test control in terms of the Goland solved stated The affidavit records. to a source and reference “[fjive sentences Proba- excised from letter from U.S. were III. The Benoit Letter J. to Michael Thyra R.J. Benoit tion Officer Report Psychological Re- Santella, Analyst of the Northeast Case por- court the excised The trial held that purpоse March 1981. The dated gion, Benoit with- properly tion of the letter was of in- source protect was to confidential 7(D) of Exemptions 7(C) and held under known which would become formation FOIA, (D) (1982), 552(b)(7)(C) & U.S.C. § identity person’s disclosure of the through prop- psychological report that the 48. The information JA supplied.” or the 7(C), 5 and Exemptions withheld under erly For released. of the letter was remainder 552(b)(5) (7)(C) (1982). 5 U.S.C. & follow, we hold that reasons that exemptions ap- found District Court District coupled with the information — part on the basis of information plicable the deleted in camera inspection Court’s affidavit. contained in the camera Marble sufficient of the letter —was Dist.Ct.Op. 2-3, Appel- JA 77-78. excisions. justify challenge not seem the Com- lant does v. Ro The seminal information to right mission’s withhold sen, (D.C.Cir.1973), cert. de 484 F.2d 820 identities sources protect the of confidential nied, 39 L.Ed.2d 415 U.S. S.Ct. 7(D). 7(C) and general Exemptions (1974), established that the argues the court Appellant instead any rea supply requester must to a FOIA (1) in cam- relying upon committed error segregable, nonexempt portions sonably affidavits, (2) require more failing era exempt that are from documents informa- particularized public detailed and Id. at disclosure requirements. FOIA’s contents of tion from about the 825-827; DEA, 678 F.2d Yeager see also seg- possible the materials withheld and the (D.C.Cir.1982) (discussing 322 & n. 16 nonprivi- regability privileged parts segregable”); of term meaning “reasonably (3) explicate leged parts, failing 552(b) reasonably (1982) (“Any 5 U.S.C. specifically findings necessary more pro shall be segregable pоrtion of a record demonstrate that the claimed any person requesting letter and the vided to such applicable. Benoit Lykins housekeeping plaintiff appear “orders” like before the to issue could challenge “order,” type organize effect would its own business. court to of this Rather, permit of this to force we are that an “order” be to District Court plaintiffs legal seeking presentence ori- type of the in- does not have the effect Sylvania bring ginating junctions Mine in that their FOIA in GTE or United district complaints Congress explicitly laid there. But Workers. here is cases in which the result we reach venue in FOIA in “the district We note resides, complainant principal by significant policy supported considerations. or has his the business, plaсe Virginia in which the “order” were or If the situated, Ly- injunction, of Co- Mr. are in the District as a full-scale then records or treated right 552(a)(4)(B) (1982). may statutory Thus of ac- 5 U.S.C. § be denied his lumbia.” kins right tion, very plaintiff plaintiff ‍‌‌​‌​‌‌​‌​​​‌​‌‌​​‌‌​​​‌​‌​‌‌​‌‌‌‌‌‌​​​‌​‌‌​​‌​‌‍to venue like would be denied his it is unclear how a the statutory unjusti- challenge express the intention. Lykins order as in accord with could rate, why fied; although petition any there is the for intervention comes At no reason mind, ongoing proceeding interests in has its own there is District Court —which Moreover, preferred fo- even if at stake —should be a he could intervene. the which which a FOIA to hear case. were a mechanism rum there

1463 portions after deletion of the which are mission released virtually the entire con- subsection.”). exempt under appellant’s tents of file (including over 138 government justi- then the burden of addition, bears documents). the Commission nondisclosure of withheld docu- fying the segregated exempt portions of the Be- documents, or portions Yeager, ments see noit letter (approximately five sentences) 320; 678 F.2d at Dep’t Jordan v. U.S. from the nonexempt portions of the letter Justice, (D.C.Cir.1978) (en 591 F.2d 779 (approximately sentences). 12 Although banc); 552(a)(4)(B) (1982). U.S.C. the formally Commission did not prepare a government requester must the supply letter, Vaughn public index to the Mar- itemizing detailed indexes item each with- provided ble affidavit fact all of the held, item, exemptions claimed information that such an index would have why exemption and the reasons applies disclosed: the amount excised, of materiаl to that Vaughn, item. F.2d at 827-828. material, claimed for the necessary, To the extent the government justification supporting the applica- supply support must affidavits its the exemptions tion of material. The of exemption. claims properly District Court examined camera letter, the entire Benoit which was

This detailed affixed procedure serves at the in camera Marble purposes: govern least three it forces the affidavit. The District Court concluded analyze carefully any ment material that release withheld, it enables the trial court to fulfill five additional sentences would have com- duty ruling applicability promised legitimately source, confidential and it exemption, adversary enables the Exemptions and therefоre ruled that 7(C) system operate requester by giving 7(D) applied. We hold that the District as much possible, information as on the procedure Court followed reasonable basis which he can present his case letter, respect to the Benoit we have no trial purpose court. Because this last can reason believe that it reached an incor- only be served if the detailed indexes and rect result. justifications requester, are available to the Appellant object seems some- required have that as much information conclusory what justification nature of the possible public. made public affidavit, offered in the cases which a look at the withheld mate would therefore have us remand this issue useful, rial itself would bе fully we have to the District Court with instructions that approved in camera examination of the government required should be to make withheld material the trial court. See public further information about the delet- CIA, v. 546 F.2d Phillippi 1012-1013 ed of the Benoit letter. To be (D.C.Cir.1976) (“It is clear that the FOIA sure, one of square holdings contemplates that will courts resolve was that may not justify fundamental issues in contested cases on withholding information in FOIA cases on basis of camera examinations of sweeping conclusory basis state- CIA, documents.”); relevant Allen v. concerning applicability ments of FOIA (D.C.Cir.1980) (dis F.2d 1294-1300 exemptions. But we do believe that cussing utility of in camera review of can on the facts demonstrate course, withheld material). Of such cam government’s this case that the justifiсation era examination is not a substitute for the improper under Vaughn. government’s obligation to provide detailed public justifications indexes and whenever recognized This court has that there Rather, possible. it will in most cases assist are occasions when public justifi extensive the District Court as supplement cation would very threaten to reveal testing detailed record and adversary information for which a FOIA exemption is government’s justifications for with See, NSA, e.g., Hayden claimed. holding information. (D.C.Cir.1979), F.2d 1384-1385 cert. denied,

t5] principles These sufficient to dis- 100 S.Ct. pose of the Benoit letter. (1980). The Parole Com- in Particularly L.Ed.2d cases in in Marble affi- proffered public fication source identity of a confidential which issue, Vaughn’s violate strictures davit does not is 7(D) at Exemption conclusоry in- sweeping and against overly divulge to more government be unable may Cf. Lesar exemptions. FOIA giving away vocation information without publicly Justice, Dep’t of 636 F.2d it is withhold. trying the information short, (D.C.Cir.1980). In we do not here has in which an this kind of Vaughn’s require- exception of a document make of the contents released most ments; rather, require- that those obligations FOIA hold has met its and otherwise in case. faith, that the were met this public a statement ments good a remaining portions would reveal small Psychological Report B. The in camera coupled with confidential source— of the docu- review of the excised raises more seri- psychological The CIA, court, see Allen v. by the trial ment document was entire problems. ous (“Sufficiently at 1298 de- supra, 636 F.2d who hаs had appellant, thus withheld justifications public tailed affidavits] [in even the kinds to discover opportunity little impossible is often agency’s withholding in the document. of material contained * ** justifications would re- because such Moreover, affidavit states public to be sought pro- information very veal the screening test psychological only that “[a] Vaughn’s to meet tected.”) sufficient —is 29, 1977, prepared report dated December principle We hold requirements. Staff, was de- by Bureau of Prison’s [sic] letter, affirm the governs the Benoit and diagnostic as it contains material and nied District Court on this basis.8 psychological psychiatric a or conclusions of which, Lykins, if known Mr. case should not be nature holding Our his re- potentially disruptive to agencies and would be grant approval construed to The af- sponse programs.” ignore Vaughn’s standards institutional trial courts to question does not discuss nondisclosure means of fidavit justify and to statements; might segrega- we re- of the general parts what conclusory and disclosure, nor ble and therefore fully procedures main committed particular parts when an it relate specified Vaughn. does exemptions, nor does it particular a FOIA great has a deal of docu- disclosed a lines information about significant and few reveal ment withholds circumstanc- identity length of a confidential would reveal Therefore, production.9 source, surrounding es the trial court’s camera when clearly as a affidavit insufficient public that such confidential review confirms revealed, justi- Vaughn the kind of index.10 source would be public public This is all of the information in Marble affidavit is sufficient un- If the concerning psychological report. standards, Vaughn record then the trial court’s der conclusory findings that release own somewhat government suggests 10. The endanger would a confidential source simi- withholding justify is sufficient justification larly appropriate: of such further Exemptions report under entire small excision this context would itself 7(C), regulations at because “Commission endanger the source. (1981) 2.56(c)(l)-(3) permit with- 28 C.F.R. diagnostic material ob- material and Ly- goes “Mr. to state that 9. The affidavit confidentiality, promise under a tained presently Arlington an inmate kins * ** diagnostic prepare members such staff County Center. Commission’s Detention ap- promise.” Brief for material under such a 2.56(c)(1) protects regulations C.F.R. pellees at far we are able to tell from 16. So as material, diagnostic members in and staff [sic] case, appellant learned in this first the record promise preparing such do so under Exemption government claiming confidentiality per 2.56(c)(2). 28 C.F.R. § its motion for sum- when the filed stamped EXEMPT’ ‘FOI The document mary judgment and first learned that deny meaning would Bureau of Prisons that the 7(C) claiming Exemption government was requester under Freedom of Informa- to a opinion he the District Court’s when read inter-agency below, memorandum con- tion Act point out it is the As we this case. professional taining product staff notify work of a index function containing opinions claimed, being and conclusions.” JA exеmption plaintiff legitimacy accepting submission, cam of the in camera Hayden, see (as opposed era to in affidavits camera re supra, 608 F.2d at 1388. documents) view of withheld has troubled The above standards concerning the use past. Although this court in the in camera inof camera affidavits arise from the judi- review of withheld documents is permissible system’s cial interest in an effective adver- (and encouraged), even we have held that sary system. In Vaughn emphasized we trial court should not use in camera affida importance the crucial providing as much necessary and, vits unless if such affidavits possible information as plaintiffs, to FOIA used, are it should be certain make adversary so system can function public record as as complete possible. See effectively assisting the trial court Dep’t Arieff v. Navy, 712 F.2d make a determination and producing 1470-1471 (D.C.Cir.1988); Campbell v. record that is susceptible to appellate re- HHS, Dep’t (D.C.Cir. 682 F.2d view. Vaughn, supra, 484 F.2d at 823- 1982); Yeager DEA, supra, v. 678 F.2d at 826; 324; accord Yeager, supra, 678 F.2d at 324-325; CIA, supra, Allen v. 636 F.2d at Phillippi, supra, 546 F.2d at 1013. Even in 63; Turner, n. Ray v. 587 F.2d cases which we have permitted camera (D.C.Cir.1978) 1211 n. 43 (Wright, J., con affidavits, we have noted that they only

curring in the remand); CIA, Phillippi v. permissible if “the interests of the adver- supra, 546 F.2d We permit at 1013. have sary process are outweighed” other cru- ted such in camera affidavits in national Hayden, supra, cial interests. cases, at A, F.2d security Hayden see supra, NS 608 F.2d at and have stated that the use of such affidavits is at the discretion In this District Court’s fail court, the trial Campbell, supra, 682 at F.2d ure to the government hold accepted contend, apрellees 260. As we have ‍‌‌​‌​‌‌​‌​​​‌​‌‌​​‌‌​​​‌​‌​‌‌​‌‌‌‌‌‌​​​‌​‌‌​​‌​‌‍never standards for submission of in camera affi limited the use inof camera affidavits davits it impossible made for adversary cases, security national but we have ex system to effectively function in the Dis pressed reservations about such use in cases trict Court. The record does not show any which do not involve national security. See effort court or the Campbell, supra, 265; 682 F.2d at Yeager, index; supply appellant ap 324-325; supra, Allen, 678 F.2d at supra, given pellant was no information concern 636 F.2d at 1298 n. 63 (procedures “should ing exemptions which were claimed for the be employed where absolutely neces report, surrounding circumstances sary”); Ray, supra, 587 F.2d at 1211 43n. creation, report’s the length report, of the (“procеdure must be reserved for unusual possibility of segregating exempt por especially circumstances”). sensitive nonexempt tions from portions, or When a trial court does make use of in identity of the author of the report. Cf. affidavits, camera it must see to it that FBI, Pollard v. 705 F.2d (9th justified such use is greatest extent Cir.1983) (in camera affidavit

possible record, accepted public on the see Yeager, 325; supra, 678 F.2d case which Phillippi, provided affidavit had supra, 546 1013,11 F.2d at and must then make “detailed description availa the withheld docu ble to the party adverse much possible ment”). short, as In rio oppor- litigate itself, so that he can the issues any involved in we are unable to find exemption. legitimate justification withholding for name of the author. because Even in circumstances in which the use of pro- remand to further fully justified, an in camera affidavit has been ceedings respect report, to this and be- obliga- the District Court still would retain the cause the issue of whether were tion to see it that materials withheld under properly psycholog- claimed with exemptions genuinely qualify for those litigated, see note 10 ical was never exemptions. instance, supra, pass given we do not on whether name of the author should be released to appears segregable part report. appellant. the in camera affidavit After an examination re- and part in and reversed Affirmed claim

tunity challenge government’s to Furthermore, no part. there was in exemption. manded finding the record for (and no basis in a crucial government had finding) that the EDWARDS, Judge, Circuit T. HARRY that out- in case secrecy

interest in this concurring part: dissenting and part effectively an weighed the importance majority’s respect with to I dissent adversary and that functioning system In report. the psychological treatment circumvention justify would therefore under the Freedom this case analyzing We therefore hold system that this case. Act, absolutely no mate- I find Information acceptance of predicates for proper that the psychological distinction between rial not met in this were camera affidavits majority and the Benoit letter. not have Court should and the District between significant no differences cites Marble affidavit relied the in camera upon and, as affirms to yet, two documеnts reaching its decision.12 I as to other. would affirm one but not the documents. both IV. Conclusion clearly indicates here reverse the District in this matter Because we The record holding Court’s that the list of claimed Lykins did not receive a that record, we was an remand exemptions Act Freedom of Information filings to with the District Court. or psychological either the to does not government the District Court however, It equally plain, Benoit letter. any particular seem to have asserted that affi- public of the contents apply to all FOIA would of the Lykins informed adequately davit report. of the District exemptions, nature of the claimed FOIA carefully Court should therefore consider issues enabling litigate any him to thus of ex- any whether new claims Therefore, by either raised document. Ryan v. emption permissible public affidavit was the extent Justice, (D.C. Dep’t of 617 F.2d 791-792 all, was deficient as equally deficient at Justice, Dep’t of Cir.1980), Jordan v. U.S. Nonetheless, because both documents. 779-781, Carson v. supra, 591 F.2d at adequate notice of the Govern- Lykins Justice, supra, 631 F.2d at Dep’t for both docu- proposed exemptions ment’s also reverse the District n. We event, ments, because, I can find psychological re- holding Court’s whatsoever disclosure no basis port exempt under FOIA. Our deci- report, I dissent from de- District Court's entirely sion based on the fail- The Government’s cision remand. require adequate public failure an to the strict in this case to adhere ure express and we report, Index requirements technical oрinion portions as to whether some view, In my at harmless error. was worst exempt. on report may remand under these circumstances require the District should remand empty and to merely engage formality ordinary comply require already overburdened cases, including release standards in FOIA Court to do the same. segregable portions of any reasonably index re- preparation specific lating any portions withheld exemptions. Finally, we affirm the excised exempt Benoit were letter

from release. letter, ruling on the Benoit the trial was suf- davit Marble affidavit

12. Because Vaughn’s apparent with re- reliance would be worst to meet standards court’s ficient States, Salisbury letter, v. United ‍‌‌​‌​‌‌​‌​​​‌​‌‌​​‌‌​​​‌​‌​‌‌​‌‌‌‌‌‌​​​‌​‌‌​​‌​‌‍spect District Court did harmless error. Cf. to the Benoit (D.C.Cir.1982). rely 973 n. 3 Marble affi- 690 F.2d not have to the in camera

Case Details

Case Name: Joseph Alan Lykins v. United States Department of Justice and Attorney General of the United States

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Jan 27, 1984

Citation: 725 F.2d 1455

Docket Number: 83-1031

Court Abbreviation: D.C. Cir.