Lead Opinion
Opinion for the Court filed by Circuit Judge TATEL.
Opinion concurring in part and dissenting in part filed by Circuit Judge KAVANAUGH.
In this Freedom of Information Act case, a Texas death-row inmate seeks information from the Federal Bureau of Investigation that he alleges might corroborate his claim that four other men actually committed the quadruple homicide for which he was convicted. The FBI provided a so-called Glomar response, neither confirming nor denying whether it has records regarding three of the four men (the fourth has died). The FBI defends this response under FOIA Exemption 7(C), which permits agencies to withhold information contained in law-enforcement records to protect against unwarranted invasions of personal privacy. Applying the Supreme Court’s decision in National Archives & Records Administration v. Favish, we conclude that (1) the public has an interest in knowing whether the federal government is withholding information that could corroborate a death-row inmate’s claim of innocence, and (2) that interest outweighs the three men’s privacy interest in having the FBI not disclose whether it possesses any information linking them to the murders. We thus reverse the district court’s approval of the FBI’s Glomar response. And with only minor exceptions, we affirm the district court’s rejection of appellant’s other arguments.
I.
Appellant Anthony Roth represents Lester Leroy Bower, Jr., who is on death row in Texas for four murders committed over a quarter century ago. In January 2008, Roth filed FOIA requests with the FBI and the Executive Office for United States Attorneys seeking information concerning the FBI’s investigation of the murders and about four individuals who Bower claims are the real killers. Although Bower was prosecuted by the state of Texas, the FBI, believing that the murders implicated various federal laws, jointly investigated the crime with local authorities. An Assistant
“FOIA requires every federal agency, upon request, to make ‘promptly available to any person’ any ‘records’ so long as the request ‘reasonably describes such records.’ ” Assassination Archives & Research Ctr. v. CIA,
Understanding the FOIA issues in this case requires fairly detailed knowledge of the facts underlying Bower’s capital-murder convictions. On the evening of October 8, 1983, law enforcement authorities discovered the bodies of Bobby Glen Tate, Ronald Mays, Philip Good, and Jerry Mack Brown at Tate’s ranch near Sherman, Texas. Bower v. State,
The victims’ bodies were found in a hangar where Tate stored ultralight aircraft. Id. at 889. Although an ultralight owned by another person was in the hangar when the bodies were discovered, Tate’s ultralight was missing. Id. at 889-90. Before the shootings, Philip Good had been assisting Tate in his effort to sell his ultralight. Id. at 889. Good’s widow testified that shortly before the murders, Good had told her that he thought he had found a buyer and that the buyer was planning to pick up Tate’s ultralight on October 8. Id.
Records showed that Bower made three calls to the Good residence in the days leading up to the murders. Id. at 891. Although Bower admitted calling to inquire about an advertisement Good had placed in Glider Rider magazine, he told FBI investigators that “he had never bought an ultra light, that he had not been in Sherman on the day of the murders, that he had not met Philip Good on the day of the murders and had never met him in person, that he did not know where the
Searching Bower’s home, law enforcement officers found, among other things, an instruction manual for a Ruger .22-caliber pistol; information on silencers; a form letter from Catawba Enterprises, a company that dealt primarily in silencer parts; and.a record of the firearms that Bower had acquired and sold, which showed that he had purchased a Ruger RST-6 .22-caliber pistol on February 12, 1982, and then sold it to himself on March 1,1982. Id. In Bower’s garage, authorities discovered two ultralight tires and rims with the name “Tate” scratched into each rim. Id. They also seized ultralight tubing that later tests revealed bore a fingerprint from one of the murder victims. Id. In addition, authorities discovered a pair of rubber boots and a blue nylon bag, both of which were stained with blood. Id. at 892-93.
The investigation also revealed that the .22-caliber subsonic Julio Fiocchi bullets used in the murders were “specialty item[s]” not sold “over the counter” at sporting-goods stores. Id. at 893. Records of Bingham Limited, the sole United States distributor of Julio Fiocchi ammunition, indicated that the company “had shipped three boxes of Fiocchi .22 long rifle sub-sonic hollow point ammunition to [Bower] on February 12, 1982 and five more boxes on December 10, 1982.” Id.
Bower was convicted of the four murders and sentenced to death in April 1984. After Bower’s efforts to overturn his sentence and conviction on direct appeal and through a state habeas petition failed, he filed a federal habeas petition under 28 U.S.C. § 2254 in the U.S. District Court for the Eastern District of Texas. See Bower v. Quartemian,
In June 2000, the district court held an evidentiary hearing on Bower’s claim of ineffective assistance of counsel at which Bower testified — something he had not done at his criminal trial. Bower v. Director, Tex. Dep’t of Crim. Justice-Inst’l Div., No. 1:92cv182, slip op. at 1, 25, 28-29 (E.D.Tex. Sept. 6, 2002) (“Bower Habeas Op.”). Bower explained that he contacted Philip Good in the fall of 1983 because he was interested in purchasing an ultralight airplane. Id. at 25. Good then introduced Bower to Tate, who wanted to sell his ultralight. Id. at 25-27. According to Bower, he met Good and Tate at Tate’s ranch around 3:00 p.m. on October 8. Id. at 26. After agreeing to buy the ultralight, Bower gave Tate $3000 and wrote an IOU for $1500 on a business card. Id. at 26-27. Bower testified that he then left the ranch with the ultralight at approximately 4:00 p.m. Id. at 27.
Bower’s testimony in the habeas proceedings contradicted his earlier statements to FBI investigators — that he had not gone to Sherman to meet Good and had not purchased Tate’s ultralight. Bower,
After the district court denied Bower’s habeas petition, Bower filed a motion to alter or amend the judgment, arguing (among other things) that the court had failed to fully address his Brady claim. In particular, Bower contended that information produced by the FBI in response to FOIA requests filed by his habeas attorneys demonstrated that prosecutors in his criminal case had withheld material, exculpatory evidence. Bower’s habeas attorneys first filed a FOIA request with the FBI in 1989. The FBI responded in 1990 by releasing approximately 850 pages of documents, many “extensively redacted.” Roth Deck ¶ 5. In November 1999, Bower’s attorneys filed another request, which they subsequently asked the FBI to expedite after the Eastern District of Texas granted Bower’s request for an evidentiary hearing. But the FBI failed to release any responsive materials until January 31, 2001 — after the district court had concluded its evidentiary hearing but before it had issued its decision denying Bower’s habeas petition. The FBI’s 2001 FOIA response included approximately 1500 pages, far more than the 850 released in 1990, and many of the previously released documents reflected fewer redactions. According to Roth, the FBI’s 2001 FOIA response revealed five types of material, exculpatory evidence not previously made available to Bower’s trial or habeas counsel:
1. Tate was involved in illegal gambling — in particular, “cock fighting” — and drug dealing and may have been killed because “he had used the proceeds from drug sales to pay off his gambling debts instead of repaying his drug source.” Appellant’s Opening Br. 13.
2. An FBI agent was able to find and purchase Julio Fiocchi .22-caliber subsonic ammunition at a Dallas gun show, thus undermining the prosecution’s portrayal of the ammunition as “rare,” “unusual,” “exotic,” and “unique.” Appellant’s Reply Br. 19-20 (internal quotation marks omitted).
3. Although FBI agents “had collected samples of [Fiocchi] ammunition*1170 from the same lot number as had been sold to ... Bower ... in order to compare the lead bullets’ ‘elemental analysis’ with the bullets taken from the victims’ bodies,” the Assistant United States Attorney working on the case had a “discussion” with FBI agents on April 11,1984, following which the FBI terminated its effort before it had completed its analysis of the bullets. Appellant’s Opening Br. 14.
4. Contrary to the prosecution’s claim that Fiocchi .22-caliber subsonic ammunition has but one use — killing people — “[n]otes of FBI interviews with persons who had purchased [the ammunition] disclosed that the ammunition was used” for various legitimate purposes, including reducing noise in indoor shooting ranges, teaching shooting to people who do not like loud noises, and eliminating “varmint[s] in a populated area without alarming the entire neighborhood.” Id. at 14-15.
5. Catawba silencer tubes for Ruger pistols “were readily available from many sources,” thus “undermin[ing] the prosecution’s effort to ascribe sinister significance to the fact that ... Bower had once placed an order with Catawba.” Id. at 15.
In ruling on Bower’s motion to alter or amend the judgment, the district court concluded that Bower had failed to show that his Brady rights had been violated. The court observed that Bower’s trial attorney admitted that he was aware of rumors that “some of the victims were engaged in nefarious activities such as cock fighting and drug dealing.” Bower v. Director, Tex. Dep’t of Crim. Justice-Inst’l Div., No. 92cv182, slip op. at 14-15 (E.D.Tex. June 13, 2003). As a result, the district court concluded, the FBI’s failure to disclose the evidence its agents collected regarding Tate’s illicit activities “constitute[d] harmless error.” Id. at 15. The district court also determined that (1) the fact that the ammunition used to commit the murders was available at gun shows did “not necessarily mean that it [was] not rare and/or exotic”; (2) the FBI’s failure to disclose that its investigation revealed that subsonic ammunition could be used for legitimate purposes was “harmless error” because “Bower’s counsel testified that he did not find Bower’s purchase of subsonic ammunition suspicious,” thus indicating that he “was able to think of noncriminal uses for the ammunition”; and (3) evidence that “other individuals were able, after being requested by the F.B.I., to obtain silencer tubes through mail order does not establish that many other people in [the Sherman area] actually owned such weaponry at the time the killings occurred.” Id. at 13-14. The district court never discussed the evidence indicating that just as Bower’s trial was beginning, the FBI called off a planned comparison between the bullets extracted from the victims’ bodies and bullets from the same lot number as those purchased by Bower.
Although the district court denied Bower’s habeas petition, it granted Bower a certificate of appealability on his claim of ineffective assistance of counsel and his Brady claim. See 28 U.S.C. § 2253(c) (providing that a state prisoner may not appeal a district court’s denial of his habeas petition without first obtaining a “certificate of appealability,” which may be issued “only if the applicant has made a substantial showing of the denial of a constitutional right”). The Fifth Circuit affirmed. With respect to Bower’s Brady claim, the Fifth Circuit determined that “[n]one of the evidence argued to support ... [the] claim, in the form of over 2,000 pages of FBI files, is exculpatory; that is, none of the evidence is sufficient to ‘under
A Texas state court stayed Bower’s execution in July 2008 and subsequently granted his motion for DNA testing of certain crime scene evidence. Those state court proceedings remain pending, and no execution date is currently scheduled.
Roth submitted the FOIA requests at issue in this case in January 2008. Since the parties no longer dispute any issues regarding the request Roth addressed to the Executive Office for United States Attorneys, we shall focus exclusively on Roth’s two requests for documents from the FBI. Roth v. U.S. Dep’t of Justice,
The FBI gave a “Glomar response” to Roth’s first request. Id. at 166. In such a response the government neither confirms nor denies the existence of the requested records. The response is named for the Hughes Glomar Explorer, a ship used in a classified Central Intelligence Agency project “to raise a sunken Soviet submarine from the floor of the Pacific Ocean to recover the missiles, codes, and communications equipment onboard for analysis by United States military and intelligence experts.” Phillippi v. CIA,
With respect to Roth’s second FOIA request — for records contained in particular FBI files — only 62 pages of documents are still at issue, 36 of which the FBI has withheld in their entirety and 26 of which have been released but contain redactions that Roth claims the FBI has failed to adequately justify. According to the FBI, it has properly withheld information contained in these documents under FOIA Exemptions 6 and 7(C), as well as Exemption 7(D), which, as we have explained, protects from disclosure criminal-investigative records that if produced “could reasonably be expected to disclose the identity of a confidential source” or “information furnished by” such a source. 5 U.S.C. § 552(b)(7)(D).
The FBI provided the district court with a Vaughn index and then a supplemental Vaughn index that described the withheld information and explained its reasons for refusing to disclose it. See Vaughn v. Rosen,
Ruling on the FBI’s motion for summary judgment, the district court determined that the Glomar response was proper and that, with only a few exceptions, the FBI’s withholding of information from the documents submitted for in camera review found support in one or more FOIA exemptions. See Roth,
II.
In providing its Glomar response to Roth’s request for information regarding Gordon, Langford, and Ford, the FBI relied on Exemptions 6 and 7(C), arguing
Exemption 7(C), which requires the government to prove only that disclosure “could reasonably be expected to constitute an unwarranted invasion of personal privacy,” is “somewhat broader” than Exemption 6, which requires proof of a “clearly unwarranted invasion of personal privacy.” U.S. Dep’t of Justice v. Reporters Comm. for Freedom of the Press,
Although not disputing that the information contained in the documents submitted for in camera review was “compiled for law enforcement purposes,” Roth contends that the FBI has failed to demonstrate that any undisclosed records it might have regarding Gordon, Langford, or Ford were compiled for such purposes. As Roth correctly notes, “FBI records are not law enforcement records [under FOIA] simply by virtue of the function that the FBI serves.” Vymetalik v. FBI,
Roth argues that the privacy interests implicated by his FOIA requests are attenuated for two reasons: (1) more than a quarter century has passed since the 1983 murders, and (2) since Gordon, Langford, and Ford have significant criminal records, they would likely suffer less embarrassment and reputational harm from being associated with the FBI’s investigation of the murders than would ordinary, law-abiding citizens. Especially given the particularly heinous nature of the 1983 murders, however, neither of these arguments is persuasive. If, as we held in Schrecker v. Department of Justice,
Having determined that Roth’s FOIA requests implicate substantial privacy interests protected by Exemption 7(C), we turn to the central question in this case: precisely what public interest would be furthered through disclosure? Roth
We pause to emphasize the distinction between the two types of public interest claimed by Roth. Since the right to the disclosure of material, exculpatory evidence recognized in Brady protects a defendant’s right to a fair trial, see Brady,
Furthermore, we have no doubt that the second, non-Bro(%-related public interest identified by Roth is substantial. In recent years, high-profile exonerations of death-row inmates have generated considerable public interest in the potential innocence of individuals sentenced to death. See Death Penalty Info. Ctr., The Innocence List, http://www.deathpenaltyinfo. org/innocence-list-those-freed-death-row (last visited June 16, 2011) (listing 138 death-row inmates who, since 1973, have been pardoned based on new evidence of innocence or have had them convictions overturned and either were not retried or were acquitted at retrial). This interest has manifested itself in several media, including newspaper articles, editorials, journalistic exposés, novels, and plays. See, e.g., Jessica Blank & Erik Jensen, The Exonerated (2004); John Grisham, The Confession (2010); David Grann, Trial by Fire: Did Texas Execute an Innocent Man?, New Yorker, Sept. 7, 2009, at 42; see also Editorial, The Death Penalty: It’s Time for Capital Punishment To Become Texas History, Houston Chron., Jan. 2, 2011, at Bll (calling for the abolition of the death penalty in Texas because “accumulating evidence indicates that the current application of the death penalty in [the state] involves an unacceptably high risk of killing innocent people”); Tim Madigan, Witness Says Condemned Man Isn’t Responsible for 1988 Slayings, Star-Telegram (FtWorth, Tex.), June 29, 2008, at IB (discussing Bower’s effort to prove his innocence).
The government insists that “Bower’s status as an individual facing capital punishment should not affect” our analysis under Exemption 7(C). Appellee’s Br. 37. We disagree. The fact that Bower has been sentenced to the ultimate punishment strengthens the public’s interest in knowing whether the FBI’s files contain information that could corroborate his claim of innocence. The case on which the government relies, Loving v. Department of Defense, 550 F.3d 32 (D.C.Cir.2008), says nothing to the contrary. True, we said in Loving — which dealt with FOIA Exemption 5, not Exemption 7(C) — that the fact
Having concluded that the second type of public interest is both distinct from the first and substantial, we must now consider whether either of the public interests identified by Roth requires the FBI to disclose information withheld under Exemption 7(C). We can easily dispose of Roth’s challenge to the FBI’s withholding of information from the documents that we and the district court reviewed in camera. Turning first to the public’s interest in revealing Brady violations, we highly doubt that any of the information withheld under Exemption 7(C) qualifies as Brady material. But even if reasonable minds could disagree on this point, we believe that the privacy interests of the individuals named in the documents outweigh any public interest in disclosure. At most, the documents contain information that one might consider to lie near the hazy borderline separating material from immaterial evidence. See Kyles,
With respect to the second public interest identified by Roth — the public’s interest in knowing whether the FBI is withholding information that could help exonerate a potentially innocent death-row inmate — our in camera review also revealed no information withheld under Exemption 7(C) that would substantially corroborate Bower’s claim that Leckie, Gordon, Langford, and Ford were the true killers. True, as Roth argues, “it is entirely possible that the importance of the withheld documents would only be clear to one who has extensive knowledge of the Bower trial, sentencing, and habeas proceedings.” Appellant’s Opening Br. 39. But we can only weigh the public and private interests at stake based on the record before us, and it was Roth’s responsibility to provide the district court and this Court with the information necessary to perform that balancing. Based on the information presented to us, we conclude that the FBI acted appropriately in redacting information under Exemption 7(C) from the in camera documents.
The FBI’s Glomar response to Roth’s request for information regarding Gordon, Langford, and Ford presents more difficult issues. Since the FBI has refused to confirm or deny whether it has information regarding these men, we have no way of knowing whether any information it might have would qualify as Brady material or could corroborate Bower’s claim of innocence. Because Glomar responses are an exception to the general rule that agencies must acknowledge the existence of information responsive to a FOIA request and provide specific, nonconclusory justifications for withholding that information, see Vaughn,
We begin with the first public interest identified by Roth- — the interest in knowing whether the federal government violated its Brady obligations at the time of
For its part, the government insists that Roth cannot rely on the documents produced in 2001 to support his Brady argument because in the district court he failed to offer any proof that those documents were not provided to Bower’s trial counsel in 1984. We agree with Roth that this argument is “silly.” Appellant’s Reply Br. 1. In the district court, Roth clearly argued that the 2001 FOIA response contained undisclosed Brady material. See Compl. ¶ 9 (alleging that the FBI and the U.S. Attorney’s Office had failed to provide evidence to Bower’s trial counsel “in violation of Brady v. Maryland”); Pl.’s Mem. in Opp’n to Defi’s Mot. for Summ. J. 6 (“The information and/or documents withheld from the 1990 FOIA production but produced in 2001 included evidence that would have supported Mr. Bower’s defense and, in Plaintiffs view, constituted material, exculpatory information that should have been turned over to the defense before trial, pursuant to Brady v. Maryland....”); id. at 28 (“Through documents that the FBI finally released in 2001 ..., Mr. Bower has learned that during his trial, the FBI failed to produce what he believes is material and exculpatory information regarding the murders.... ”). If the government wished to challenge Roth’s failure to present a sworn declaration or other evidence demonstrating that the information produced in 2001 had not previously been disclosed, it should have done so in the district court. See Celotex Corp. v. Catrett, 477 U.S. 317, 323,
Even under this assumption, however, Roth’s argument — that the public has a significant interest in knowing whether the federal government failed to disclose Brady material regarding Gordon, Lang-ford, or Ford — still falters at the Favish threshold. Roth argues (1) that the FBI’s 2001 FOIA response contained undisclosed Brady material, and (2) that one can infer from this fact that the FBI might have other such material in its possession. But the first step of this argument fails given the Fifth Circuit’s decision affirming the denial of Bower’s federal habeas petition. See Bower,
Having disposed of Roth’s argument that he is entitled to further disclosures based on the public’s interest in revealing Brady violations, we turn to the far more interesting question of whether Roth may overcome the FBI’s Glomar response based on the public’s more general interest in knowing whether the FBI is withholding information that could corroborate Bower’s claim of innocence. To demonstrate that this interest is likely to be advanced by disclosing whether the FBI’s files contain records regarding Gordon, Langford, or Ford, Roth must show that a reasonable person could believe that the following might be true: (1) that the Oklahoma drug dealers were the real killers, and (2) that the FBI is withholding information that could corroborate that theory. See Favish,
Since Bower’s trial, two witnesses— Langford’s ex-girlfriend and Leckie’s widow — have provided sworn statements implicating the Oklahoma drug dealers. When combined with the evidence in the FBI’s 2001 FOIA response that one of the murder victims may have been involved with illegal gambling and drug dealing and that the ammunition used in the murders was not as rare as the prosecution claimed and could be put to legitimate uses, these witnesses’ statements might well cause a reasonable person to doubt Bower’s guilt. With respect to the second showing Roth must make — that a reasonable person could believe that the FBI might be withholding information that could corroborate Bower’s claim of innocence — there can be no doubt that the FBI in the past has failed to disclose information favorable to Bower upon request. The agency’s 2001 FOIA response contained information that was neither disclosed to Bower’s trial counsel nor produced in response to similar FOIA requests submitted on Bower’s behalf in 1989. As explained above, Bower now relies on some of this previously undisclosed information to bolster his claim of innocence. The fact that the FBI withheld such information until 2001, approximately seventeen years after Bower’s trial, “would warrant a belief by a reasonable person” that the FBI “might” have other potentially exculpatory information in its files, possibly including information regarding Gordon, Langford, or Ford. Id.
In contrast to Roth’s Brady argument, the deference we owe the Fifth Circuit’s habeas decision does not prevent us from concluding that Roth has satisfied the Favish standard with respect to his claim that the public has an interest in knowing whether the FBI is withholding information that could corroborate a death-row inmate’s claim of innocence. That interest in no way hinges on the doctrinal complexities of Brady and its progeny. As explained above, it is at best unclear the extent to which the Brady framework would apply to evidence whose materiality became apparent only after the defendant had been convicted and sentenced. See Skinner,
Since Roth has satisfied his obligations under Favish, we must proceed to balance the public and private interests at stake in this case. Favish,
In doing so, however, we emphasize that the FBI need not disclose whether it has information about the three men that is unrelated to its investigation into the 1983 murders. The public’s interest is in knowing whether the FBI’s files contain information that could corroborate Bower’s
Taking a different approach, the dissent presents the following syllogism: (1) our case law has embraced the categorical rule that the public’s interest in revealing Brady violations “does not suffice to override the privacy interests of third parties named in ... law enforcement files,” Dissenting Op. at 1188; (2) for purposes of FOIA, there is no “meaningful” difference between the public’s interest in learning of Brady violations and the public’s interest in uncovering the government’s post-trial withholding of information that could corroborate a convicted defendant’s claim of innocence, id. at 1167; (3) therefore, our case law supports a categorical rule that the latter interest cannot outweigh privacy interests protected by Exemption 7(C), see id. The syllogism fails at the first premise. Despite the dissent’s assumption to the contrary, this circuit has expressly refrained from deciding whether to adopt a categorical rule that the public’s interest in revealing Brady violations cannot overcome government invocations of Exemption 7(C). See Martin,
Perhaps recognizing the weakness of its syllogism, the dissent also contends that the Supreme Court’s decision in Reporters Committee supports a categorical rule that the public’s interest in learning whether the government is withholding information that could corroborate a death-row inmate’s claim of innocence cannot overcome third-party privacy interests protected by Exemption 7(C). But Reporters Committee is readily distinguishable from this case. There, the FOIA requesters sought
“[B]orrow[ing] the words of Reporters Committee,” the dissent nonetheless believes that the balance between public and private interests “characteristically will tip ... in favor of non-disclosure when a requester seeks private Information about third parties contained in files related to a criminal prosecution.” Dissenting Op. at 1189. Why? Because, the dissent answers, “the public interest in accurately assessing criminal liability or exposing prosecutorial or investigative misconduct is invariably lessened in the FOIA context by the existence of traditional criminal and civil litigation processes where that public interest is directly addressed.” Id. The dissent cites no authority in support of this proposition, which is hardly surprising. It simply makes no sense to say that the public’s interest in a particular piece of information is reduced merely because multiple mechanisms might exist for obtaining that information. The dissent makes much of the fact that the type of information Roth seeks may be available through criminal and civil discovery. See id. at 1166-67, 1169-70. But we have made clear that the potential availability of criminal and civil discovery in no way bars an individual from obtaining information through FOIA where no exemption otherwise applies. See Morgan v. U.S. Dep’t of Justice,
Finally, and in our minds sealing the point, the dissent’s categorical approach risks producing absurd consequences that we highly doubt Congress intended. For example, under the dissent’s rationale, it appears that we would have to uphold the FBI’s withholding of information under Exemption 7(C) even if we knew for certain from the FBI’s in camera submission that the agency is deliberately withholding records conclusively showing that the Oklahoma drug dealers were the true killers. We decline to adopt a rule so at odds with “FOIA’s prodisclosure purpose.” Favish,
III.
This brings us finally to Roth’s challenge to the FBI’s withholding of information under Exemption 7(D). This issue relates only to information redacted from the documents we have reviewed in camera. It has no implications for the FBI’s Glomar response, which the agency sought to justify only under Exemption 7(C).
Where, as here, the records at issue were “compiled by criminal law enforcement authorities] in the course of a criminal investigation,” they are covered by Exemption 7(D) if producing the records “could reasonably be expected to disclose the identity of a confidential source” or “information furnished” by such a source. 5 U.S.C. § 552(b)(7)(D). The agency invoking Exemption 7(D) bears the burden of proving that it applies, and with respect to the FBI, it is not enough for the agency to claim that all sources providing information in the course of a criminal investigation do so on a confidential basis. See U.S. Dep’t of Justice v. Landano,
Unlike Exemptions 6 and 7(C), Exemption 7(D) requires no balancing of public and private interests. See Parker v. Dep’t of Justice,
Roth complains that the FBI’s Vaughn index and supplemental Vaughn index contain “only generic statements regarding confidentiality,” thus failing to satisfy the FBI’s burden of proving that the withheld information came from or could identify a confidential source. Appellant’s Opening Br. 44. Under our ease law, agencies invoking a FOIA exemption must provide a specific, detailed explanation of why the exemption applies to the withheld materials. See Vaughn,
Here, the FBI has generally struck an appropriate balance, publicly explaining to the extent it can why it has concluded that certain sources provided information under an express or implied assurance of confidentiality and then relying on in camera judicial review to confirm its conclusions. The FBI invoked Exemption 7(D) with respect to four categories of sources: local law enforcement agencies; informants who have been assigned confidential source symbol numbers; third parties without source symbol numbers who nonetheless provided information under an express assurance of confidentiality; and third parties who provided information under an implied assurance of confidentiality. See Roth,
The remaining Exemption 7(D) redactions relate to informants to whom the FBI assigned no source symbol numbers. Having reviewed the documents and the Vaughn indexes, we think it obvious that
But our in camera review discloses two instances in which the FBI’s stated explanation for redacting information under Exemption 7(D) fails to correspond to the information actually contained in the documents. Although the FBI claims that the last paragraph of Roth/Bower 108 contains information provided by an informant who had been assigned a source symbol number, no such informant is mentioned in that paragraph. Instead, the paragraph describes information obtained by a local law enforcement agent in an interview with a named individual. The other problematic redactions appear in the carryover paragraph of Roth/Bower 112-13. Although the FBI has properly redacted information from this paragraph’s second sentence that relates to a source-symbol-number informant, it has failed to provide any support for its contention that each of the other sources discussed in the carryover paragraph received express assurances of confidentiality. See First Hardy Decl. ¶ 87-88; Second Hardy Decl. ¶ 18.
Accordingly, the FBI has failed to bear its burden of proving that the information redacted from the last paragraph of Roth/Bower 108 and the carryover paragraph of Roth/Bower 112-13 (with the exception of the second sentence) falls within the scope of Exemption 7(D). That said, the FBI has properly invoked Exemptions 6 and 7(C) to withhold information implicating personal privacy interests. We leave the task of separating the wheat from the chaff to the district court in the first instance. Specifically, the court should first determine which portions of the two paragraphs fall within Exemptions 6 and 7(C) and then order the FBI to produce all segregable, non-exempt infor
IV.
For the foregoing reasons, we affirm in part, reverse in part, and remand for farther proceedings consistent with this opinion.
So ordered.
Concurrence Opinion
concurring in part and dissenting in part
In 1984, Lester Bower was convicted by a Texas state-court jury of murdering four men. Bower was sentenced to death. His conviction and death sentence have been affirmed on appeal, in state habeas proceedings, and in federal habeas proceedings.
Bower maintains that he is innocent. He cites two witnesses who came forward and suggested that four Oklahoma drug dealers were responsible for these murders.
Pursuant to Texas law, Bower is pursuing a post-conviction DNA proceeding in Texas state court in an attempt to show his innocence. His execution remains on hold as a matter of state law while that process continues.
This is a federal Freedom of Information Act case, not a criminal, habeas, or clemency proceeding. Bower’s attorney, Anthony Roth, submitted FOIA requests and asked the FBI to release documents related to the underlying criminal investigation of these killings, as well as records relating to the four men that Bower claims committed the murders.
Because the original criminal investigation into these murders was conducted by federal as well as state investigators, the FBI possessed a number of responsive documents. The FBI turned over many of those documents to Roth in response to his FOIA request. But the FBI declined to produce documents (or portions thereof) that contained private information about third parties, including about the three still-living Oklahoma drug dealers. In declining to produce such information, the FBI cited FOIA Exemption 7(C). That exemption authorizes the Government to withhold law enforcement files the disclosure of which “could reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C).
Interpreting Exemption 7(C), the Supreme Court and this Court have ruled that FOIA ordinarily is not a proper tool for the public to obtain information from law enforcement files relating to a criminal prosecution when disclosing the information would infringe the privacy interests of third parties. See Dep’t of Justice v. Reporters Committee for Freedom of the Press,
As this Court has said, “privacy interests are particularly difficult to overcome when law enforcement information regarding third parties is implicated.” Martin,
Roth argues that the requested documents would show that the Federal Government withheld exculpatory information and violated its Brady obligations with respect to Bower’s 1984 Texas state-court trial. But the claimed Brady violation has been addressed in Bower’s criminal and habeas proceedings and, as our precedents have consistently indicated, does not suffice to override the privacy interests of third parties named in such law enforcement files. See, e.g., Martin,
Roth also suggests — albeit only in passing — that this case is not controlled by the settled FOIA precedents because those cases are about proving the defendant’s innocence at trial. Here, according to Roth, the requested documents, in conjunction with the witnesses who emerged after trial, could demonstrate Bower’s innocence during the ongoing post-conviction proceedings. The majority opinion has accepted Roth’s argument and distinguished (i) the public interest in showing a criminal defendant’s innocence at trial from (ii) the public interest in showing a criminal defendant’s innocence during a post-conviction proceeding. In my view, that distinction makes little sense under Exemption 7(C) and finds no support in the case law. For purposes of FOIA, Roth’s post-conviction theory does not differ in any meaningful way from the Brady-based theory that our precedents have consistently rejected. After all, if FOIA does not require disclosure of private information that could exonerate a man at trial, how can FOIA require disclosure of private information that could exonerate a man in a post-conviction habeas or clemency proceeding? The majority opinion cannot persuasively answer that question.
The FOIA precedents set forth a clear juridical principle — namely, that FOIA or
To borrow the words of Reporters Committee, the balance tips — and characteristically will tip — in favor of non-disclosure when a requester seeks private information about third parties contained in files related to a criminal prosecution. The privacy interests of third parties who are named in law enforcement documents are invariably strong. Indeed, the majority opinion acknowledges that those interests are “significant.” Maj. Op. at 1174. And the public interest in accurately assessing criminal liability or exposing prosecutorial or investigative misconduct is invariably lessened in the FOIA context by the existence of traditional criminal and civil litigation processes where that public interest is directly addressed. Therefore, the Reporters Committee categorical approach is appropriate here.
The majority opinion argues that the case law has not specifically articulated such a categorical principle. It is true that the precedents have not set forth expansive reasoning in rejecting arguments of the kind advanced by Roth here, no doubt because the argument is ultimately insufficient as a matter of FOIA law. Here, because the majority opinion is charting a new course, I have attempted to explain the essential reasoning that undergirds those many decisions. The majority opinion counters that the FOIA public interest is not lessened merely because there are other avenues for obtaining information from the government relating to a criminal prosecution. But what reason other than the existence of those alternative forums could support our long line of cases rejecting FOIA requests for private information in law enforcement files related to a criminal prosecution? After all, considered in isolation from the other criminal and civil processes, the public interest in ensuring that an innocent person is not wrongly imprisoned is extraordinarily high, yet it is routinely deemed insufficient in Exemption 7(C) cases. The reason is evident: Other criminal and civil processes exist to vindicate that public interest. The majority opinion purports to accept the holdings of our prior cases rejecting claims like
For present purposes, the key point is that there is a long line of precedent rejecting the kind of argument advanced here by Roth. Those cases have established in common-law-like fashion a principle that FOIA ordinarily does not authorize- disclosure when a requester seeks private information about third parties contained in files related to a criminal prosecution. Recognizing that principle is consistent with — indeed encouraged by— Reporters Committee.
Reaching farther afield, the majority opinion also cites a non-7(C) case saying that the availability of discovery does not defeat a FOIA claim “where no exemption otherwise applies.” Maj. Op. at 1183 (citing Morgan v. Dep’t of Justice,
In the end, the majority opinion distinguishes away a slew of applicable precedents by decreeing a new death penalty exception that overrides Exemption 7(C)’s protection of personal privacy. The result in this FOIA case, by the majority opinion’s own admission, would be different if Bower were serving a sentence of life imprisonment. Of course, the information sought here goes to Bower’s guilt, not to his sentence. The majority opinion’s reasoning, which rests on Bower’s death sentence, is thus an odd fit with the nature of the information sought. Beyond that, the major problem with the majority opinion’s approach is that there is no statutory or precedential support for creating a new death penalty exception to the important privacy protection in Exemption 7(C). Creating any such exception is a decision properly left to Congress and the Executive Branch. In justifying its new death penalty exception, the majority opinion lobs a rhetorical volley, saying that the opposing position would allow the government to deliberately and knowingly kill an innocent man. That is wildly inaccurate. The traditional processes such as habeas, clemency, and the like are constitutionally and statutorily designed to prevent such a travesty of justice. As the Supreme Court said, “the framers of the FOIA” did not have in mind “disclosure of records regarding private citizens, identifiable by name.” Reporters Committee,
Here as elsewhere, general or categorical principles can be overcome in extraordinary cases. Cf. Herrera v. Collins,
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In other forums, Bower has rightly been able to obtain discovery from the Government and challenge his guilt. Our legal system accommodates pre-conviction claims of innocence through the criminal trial itself. And our legal system accommodates post-conviction claims of innocence — including those based on newly discovered evidence — through new trial motions, appeals, habeas proceedings, the executive clemency process, and in recent times DNA procedures such as the process that Texas has employed in Bower’s case. See generally Herrera,
I respectfully dissent from the majority opinion’s decision regarding Exemption 7(C).
Notes
. I join Part III of the majority opinion, which addresses Exemption 7(D). I dissent from Part II, which addresses Exemption lic). This separate opinion focuses solely on the Exemption 7(C) issue.