Roth Ex Rel. Bower v. United States Department of Justice

1161 inability might suffering to communicate.” from mental prove be disease Caldwell, 1333, rendering mentally or him incompe- United States v. defect Battle, (D.C.Cir.1975); tent, 4241(a), § court 1349 n. 70 accord 18 U.S.C. did not in denying 613 F.3d at 263. abuse its discretion Jones’ mo- plea tion to withdraw his without first Finally, although Jones not ex- does holding competency hearing ordering pressly persistence try- that his contend another examination. ing plea from a to withdraw favorable itself agreement was sufficient reason Ill suffering men-

believe that he was from a defect, tal he disease or does hint reasons, forgoing For the affirm we acting “some observers believed” he was district denial court’s of Jones’ motion to “irrationally” doing Appellant’s so. Br. guilty his plea. keeping withdraw with rejected sug- 29. The district court general practice, this court’s we remand gestion, concluding that problem Jones’ Jones’ ineffective assistance counsel capacity” was not “mental but “obstinan- claim, appeal, raised the first time on cy” “just decided didn’t like the [he] —he evidentiary for an hearing before dis- (Nov. Sentencing Hr’g deal cut.” Tr. [he] 5 supra trict court. See note 3. 2009). ground have no over- We So ordered. Perez, turning that conclusion. Gf that, (concluding although F.3d at legal defendant “held dubious views and

pursued strategy, an inadvisable none dis- provided reasonable cause for the

trict question competence court to his trial”).

stand By attorney psychol- contrast to the Anthony ROTH, C. behalf Lester oppor- ogist, judge the district did have an Bower, Jr., Appellant L. hearings tunity the course six —to —over speak with Jones observe his demean- UNITED STATES DEPARTMENT basis, or. judge On that told Jones: JUSTICE, Appellee. OF observing you “I’ve been on the court you’ve several been I occasions here.... No. 09-5428. think anything wrong don’t there’s Appeals, States United Court of your you’re I com- perfectly head. think District Columbia Circuit. (Nov. 24, petent.” Sentencing Hr’g Tr. 5 2009). Battle, held in As we “[b]ecause Argued Jan. 2011. ‘evidence of a defendant’s ... demeanor at Decided June trial ... com- determining relevant’ [is] petency,” justified “court [i]s a district

relying part on its own observations” as

determining competency whether exami- required.

nation or F.3d at hearing (quoting Drope, 896).

S.Ct. because noth- And there was

ing give before the the record court to

“reasonable cause” to believe that Jones In- Bureau of from the Federal

formation might corrobo- alleges that he vestigation actually that four other men his claim rate quadruple homicide committed FBI provid- The which he was convicted. response, neither Glomar ed so-called denying whether it has rec- confirming nor (the three of the four men regarding ords died). FBI defends this fourth has 7(C), under FOIA response to withhold infor- permits agencies which rec- mation contained law-enforcement inva- protect against unwarranted ords Applying the personal privacy. sions decision in National Ar- Supreme Court’s v. Fav- chives & Records Administration (1) ish, we conclude federal knowing interest whether the withholding information in- a death-row that could corroborate (2) innocence, and mate’s claim of men’s outweighs privacy interest the three having the FBI not disclose link- any it possesses whether thus re- ing them to the murders. We of the approval verse the district court’s argued ap- the cause for Peter Buscemi response. only And with FBI’s Glomar him on the briefs were pellant. With exceptions, we affirm the district minor Anthony Roth. Speights E. and C. Grace rejection appellant’s argu- other court’s Fields, Attor- Rhonda C. Assistant U.S. ments. appellee. cause for With

ney, argued the Machen, her on the brief were Ronald C. I. Lawrence, Jr., Attorney, Craig and R. Anthony represents Les- Appellant Attorney. Assistant U.S. Bower, Jr., Leroy who is on death row ter over in Texas for four murders committed TATEL, ROGERS, Before: January In quarter century ago. KAVANAUGH, Judges. Circuit the FBI requests Roth filed FOIA by filed Opinion for the Court Circuit States and the Executive Office United Judge TATEL. concerning Attorneys seeking information investigation of the murders and the FBI’s part Opinion concurring Bower claims about four individuals who dissenting part by Judge filed Circuit Although killers. Bower was are the real KAVANAUGH. Texas, FBI, by the state of prosecuted TATEL, Judge: Circuit vari- believing implicated that the murders laws, jointly investigated the Act Freedom of Information ous federal An case, in- crime with local authorities. Assistant inmate seeks a Texas death-row Attorney underlying capital-mur- as a mem- the facts Bower’s served United States evening der On the prosecution team. convictions. Octo- ber of 8, 1983, enforcement ber law authorities every requires federal “FOIA Bobby Tate, discovered the bodies Glen ‘promptly make upon request, to agency, Good, Mays, Philip Jerry Ronald any person’ any ‘records’ so available to Brown at ranch Mack Tate’s near Sher- ‘reasonably long request as the describes man, State, Texas. Bower v. 769 S.W.2d ” Archives & such records.’ Assassination (Tex.Crim.App.1989), 889-90 over- CIA, Research Ctr. State, part by ruled in Heitman v. (D.C.Cir.2003) (quoting U.S.C. (Tex.Crim.App.1991). S.W.2d 681 From 552(a)(3)(A)). Although § the Act “re bodies, investigators the victims’ retrieved full general philosophy agency flects a .22-caliber, subsonic, eleven hollow-point disclosure,” “provides it for several ex bullets manufactured Julio Fiocchi. Id. agency may under which an emptions at 890. Tests run on those bullets and requested deny disclosure records.” casings their shell indicated that “the shots (internal omitted). marks quotation Id. were fired from either an AR-7 .22 caliber agency “bears the burden of estab rifle, Ruger .22 caliber semi-automatic applicability” any exemption lishing pistol, High Standard .22 caliber sem- invokes, agency and “even if es [the] pistol.” iautomatic Markings Id. on the exemption, tablishes an it must nonethe and other bullets forensic evidence re- reasonably segregable, disclose all less vealed a silencer had been used. Id. nonexempt requested of the ree portions ord(s).” The victims’ bodies were found in a 57-58; han- also 5 U.S.C. Id. see (b). case, gar ultralight where Tate stored aircraft. 552(a)(4)(B), § In this we must Although ultralight Id. at 889. owned properly consider whether the FBI with person hangar another was when responsive held information to Roth’s discovered, the bodies were Tate’s ultra- statutory requests under three ex light missing. was Id. at 889-90. Before covering emptions: “per shootings, Philip Good been had assist- sonnel and medical flies and similar flies ing Tate in his effort to sell his ultralight. the disclosure of which would constitute a Id. at 889. Good’s widow testified that clearly personal unwarranted invasion shortly murders, 7(C), before the had told Good privacy”; Exemption covering “rec buyer that he a thought her he had found compiled for en ords information law buyer planning pick up and that the was to purposes,” forcement the disclosure of ultralight Tate’s on October Id. 8. reasonably expected which be to “could constitute an unwarranted invasion of Records showed Bower made three 7(D), personal privacy”; to in days calls the Good residence (among covering things) other records or leading up to the murders. at Id. 891. “compiled by criminal law en Although calling Bower admitted to in- in a authorities] forcement the course of quire about an advertisement Good had investigation” criminal that “could reason placed magazine, Rider he told Glider ably expected identity be to disclose the investigators that “he had never of a confidential source” or “information bought light, an ultra that he had not been by” furnished such a source. 5 U.S.C. murders, day on the of the Sherman (7)(C)-(D). 552(b)(6), § Philip that he had not met Good on the met him

Understanding day the FOIA issues of the murders and had never requires fairly knowledge person, case detailed that he did not know where the § in the District Court was, he had U.S.C. U.S. and that missing light ultra at the Eastern District of Texas. See missing light.” ultra Id. never seen 459, Quartemian, owning a 465- admitted to Bower v. Bower also 891-92. (5th Cir.2007). owning Among things, a other but denied number of firearms At the argued attorney Id. at 891. that his trial was handgun. Bower .22-caliber time, sell firearms had licensed to Bower was ineffective and material, exculpatory Id. at 892. evidence in and ammunition. withheld Brady v. obligations of its under violation home, law enforce- Searching Bower’s 87, 1194, 83, Maryland, 373 found, among things, other officers ment (1963). 10 L.Ed.2d .22- Ruger for a an manual instruction silencers; on a pistol; information caliber 2000, In the district court held an June a Enterprises, form letter from Catawba on claim of evidentiary hearing Bower’s primarily that dealt silencer company at ineffective assistance of counsel which of the firearms that parts; record and.a something he had not Bower testified — sold, which acquired had Bower criminal v. Di done at his trial. Bower purchased Ruger had showed he rector, Tex. Crim. Justice-Inst’l 12, pistol February on RST-6 .22-caliber Div., 1:92cv182, slip op. at 28-29 No. it to himself on March and then sold (E.D.Tex. 2002) (“Bower Sept. Habeas 1,1982. garage, In Bower’s authorities Id. that he contacted Op.”). explained Bower ultralight discovered two tires and rims in the fall of 1983 because he Philip Good each with the name “Tate” scratched into ultralight purchasing was interested ultralight tubing They rim. Id. also seized at then introduced airplane. Id. 25. Good a fingerprint that later tests revealed bore Tate, his Bower to who wanted sell from one of the murder victims. Id. According 25-27. ultralight. Id. at addition, pair authorities discovered Bower, Tate at he met Good and Tate’s nylon bag, rubber boots and blue both p.m. ranch Id. at around 3:00 October 8. which stained with blood. Id. at 892- were buy ultralight, agreeing 26. After 93. gave Tate and wrote an IOU Bower $3000 on a business card. Id. at 26-27. investigation $1500 also that the revealed that he then the ranch Bower testified left subsonic Julio Fiocchi .22-caliber bullets ultralight approximately with the 4:00 “specialty used the murders were p.m. Id. at 27. the counter” at sold “over item[s]” Rec- sporting-goods stores. Id. testimony in the pro- Bower’s habeas Limited, Bingham the sole ords of United contradicted his earlier state- ceedings of Julio Fiocchi ammuni- States distributor investigators ments to FBI he had —that tion, company indicated that “had gone to to meet Good and not Sherman long three of Fiocchi .22 shipped boxes ultralight. Tate’s Bow- purchased had not ammunition to point rifle sub-sonic hollow er, Nevertheless, at 769 S.W.2d 891-92. 12, February on 1982 and five [Bower] attorney appellant Roth —Bower’s and more boxes on December 1982.” Id. compo- this case—contends that “[c]ritical ... account are corrobo- was convicted of the four mur- nents of Bower’s Bower by prosecution’s rated” evidence in the April ders and sentenced to death 1984. Appellant’s Opening investigative After efforts to overturn his sen- files. Bower’s to evidence appeal Specifically, points and Br. 6. he tence and conviction direct failed, shootings, Tate’s widow petition a he that soon after through state habeas office to ask petition under 28 called the local sheriffs filed a federal habeas “$3,000 large requests by check” had FOIA filed his habeas attor- whether body, as well as to neys found on Tate’s prosecutors been demonstrated his material, that the medical examiner discov- evidence criminal case had withheld excul- card, by single business later lost ered a patory evidence. Bower’s habeas attor- officials, in Tate’s shirt law enforcement neys request first filed FOIA with the Furthermore, and Id. 6-7. pocket. FBI in FBI responded 1989. The in 1990 case, have central to this two witnesses by releasing approximately pages since Bower’s criminal trial come forward documents, many “extensively redacted.” indicating statements provided and sworn ¶ Roth Deck 5. In November Bower’s that the murders were committed attorneys filed another request, they which Bower, drug instead four Oklahoma but FBI subsequently expedite asked the (“Bear”) Leckie, Chestley dealers: Brett grant- after the Eastern District of Texas (“Ches”) Gordon, Lynn Langford, Galen request evidentiary ed Bower’s for an T. (“Rocky”) and Robert Ford. See id. hearing. But the failed to release ¶ 7-10; witness, Compl. 12. The first any responsive January materials until Langford’s girlfriend at the time of the 2001—after the district court had conclud- murders, testified at the Eastern District evidentiary hearing ed its but before it had hearing habeas that she had driv- of Texas denying issued its decision Bower’s habeas Hillsboro, Texas, to Langford en with from petition. The FBI’s 2001 response Oklahoma, day Lexington, after the approximately included 1500 pages, far shootings. Op., Bower Habeas No. more than the 850 released I:92cvl82, slip According at 23. to the op. many previously of the released documents ex-girlfriend, couple passed when the reflected fewer redactions. According to Sherman, through Langford “got down low Roth, the FBI’s 2001 FOIA response re- in the seat and stated that he had killed material, types vealed five exculpatory people day some before Sherman evidence not previously made available to drug deal that went bad.” Id. About a Bower’s trial or habeas counsel: later, testified, week the witness “she over- 1. Tate in illegal gam- was involved [Langford] man heard and another named bling particular, fight- “cock —in bragging killings about the and how ‘Ches’ ing” drug dealing may —and they ultralight.” had stolen an Id. Accord- have been killed because “he had Roth, witness, ing to the second Leckie’s proceeds drug used the from sales to widow, has stated in a sworn affidavit that off pay gambling his debts instead of she overheard various conversations from repaying drug Appel- his source.” through late 1983 1985 in which “her hus- Opening Br. lant’s 13. friends, including band and his Ches and 2. An FBI agent was able to find and Lynn, about four men who were talk[ed] Sherman, purchase Julio Fiocchi airplane hangar shot at an .22-caliber drug gun Texas over a deal that went bad.” subsonic ammunition at a Dallas show, Br. Appellant’s Opening undermining prosecu- thus portrayal tion’s ammunition as After the district court denied Bower’s “rare,” “exotic,” “unusual,” petition, habeas filed a motion to Bower “unique.” Appellant’s Reply Br. 19- judgment, arguing alter or amend the (internal quotation marks omit- other that the court had (among things) ted). fully Brady failed to address his claim. In Although agents 3. FBI “had collected particular, Bower contended informa- produced by response samples tion the FBI in to ammunition [Fiocchi] agents collected had to disclose the evidence its the same lot number as

from illicit activities “consti- regarding Tate’s ... ... Bower order been sold to at 15. The harmless error.” Id. tute[d] ‘elemen- compare to the lead bullets’ (1) determined that district court also analysis’ with the bullets taken tal that the ammunition used to commit fact bodies,” the Assis- from the victims’ gun murders was available at shows Attorney working tant United States necessarily mean that it not [was] did “not a “discussion” with on the case had (2) exotic”; the FBI’s failure rare and/or 11,1984, follow- agents April on investigation that its revealed to disclose the FBI terminated its ing which ammunition could be used that subsonic completed it had its effort before purposes was “harmless er- legitimate analysis Appellant’s of the bullets. ror” because “Bower’s counsel testified Br. 14. Opening purchase that he did not find Bower’s Contrary prosecution’s to the claim in- suspicious,” subsonic ammunition thus that Fiocchi .22-caliber subsonic am- think dicating that he “was able to of non- killing munition has but one use— (3) ammunition”; criminal uses for the of FBI interviews people “[n]otes — able, evidence that “other individuals were persons purchased had who F.B.I., by the to being requested after that the disclosed [the ammunition] through mail order obtain silencer tubes ammunition was used” for various many people does not establish that other including legitimate purposes, reduc- actually Sherman owned such [the area] shooting ranges, ing noise indoor weaponry killings the time the oc- teaching shooting people who do Id. at 13-14. The district court curred.” noises, eliminating like not loud indicating never the evidence discussed populated in a area with- “varmint[s] just beginning, as Bower’s trial was alarming neighbor- out the entire planned comparison the FBI called off a hood.” Id. 14-15. between the bullets extracted from the Ruger 5. Catawba silencer tubes from the victims’ bodies and bullets same readily from pistols “were available purchased lot number as those Bower. sources,” many “undermin[ing] thus Although the district court denied Bow- prosecution’s effort to ascribe petition, granted er’s Bower a habeas significance sinister to the fact that appealability certificate of on his claim of placed ... had Bower once order ineffective assistance of counsel and his with Catawba.” Id. at 15. 2253(c) Brady § claim. See U.S.C. ruling Bower’s motion alter (providing prisoner may that a state judgment, amend the the district court appeal district court’s denial his habe- concluded that Bower had failed to show a “certif- petition obtaining as without first Brady rights that his had been violated. may of appealability,” icate which be is- The court observed that Bower’s trial at “only applicant sued if the has made a torney admitted that he was aware of ru showing of the of a con- substantial denial mors that “some of the victims were en right”). stitutional The Fifth Circuit af- gaged in nefarious activities such as cock Brady respect firmed. With to Bower’s fighting drug dealing.” claim, Bower v. Di the Fifth determined that Circuit rector, support Tex. Crim. Justice-Inst’l argued the evidence “[n]one Div., 92cv182, claim, 2,000 slip at 14-15 ... op. No. the form over [the] (E.D.Tex. 2003). result, is, files, pages exculpatory; June As a of FBI concluded, the failure none of the evidence is sufficient to ‘under- district court FBI’s jury’s alleges in the verdict.’” who Bower were the real killers— confidence mine Leckie, Gordon, Bower, Langford, and Ford. The (quoting Spence v. 497 F.3d at (5th Cir.1996)). request sought documents from Johnson, 989, second 80 F.3d containing FBI files particular information that the FBI docu- emphasized court regarding investigation its of the 1983 linking “evidence the contained no ments at 157 n. 2. murders. See id. alleged illegal ac- murders to the victims’ Instead, merely the documents tivity.” Id. gave The FBI a response” “Glomar investigative theories of which summarized request. Roth’s first Id. at 166. In such a ... didn’t Bower’s counsel “was aware but response neither confirms court extensively pursue himself.” Id. The requested nor denies existence that the documents’ refer- also observed response records. The is named for the purchased to individuals who had ences Hughes Explorer, ship a in a Glomar used legitimate pur- ammunition for Fiocchi Intelligence Agency pro- classified Central “directly poses did not contradict ject “to raise a sunken Soviet submarine evidence that the ammunition was from the floor of the Pacific state’s Ocean to missiles, codes, Ultimately, widely available.” Id. recover and communi equipment analysis by cations onboard for although concluded that the docu- court military intelligence United States ex disclosed in the FBI’s 2001 FOIA ments CIA, perts.” Phillippi v. 655 F.2d for an “provid[edj support some response (D.C.Cir.1981); Military see also Au crime, theory theory alternative of the Project Casey, dit 656 F.2d 728-29 of, Bower’s counsel was well aware which (D.C.Cir.1981); Aid, Project Matthew Azo contradicted] none of the files History rian: The CIA’s by the state circumstantial evidence used Declassified Explorer, Security the Glomar Nat’l Ar Accordingly, the to convict Bower.” Id. chive, http://www.gwu.edu/fisarchiv/ court concluded that the withheld evidence (Feb. nukevault/ebb305/index.htm not material and thus that the FBI’s was 2010) link (providing partially to a de- to Bower’s failure to disclose the evidence article the Hughes classified about Glomar attorney Brady. did not violate Id. trial Explorer from the fall 1985 edition of the stayed A Texas state court Bower’s exe- journal in-house Studies in Intelli- CIA’s July subsequently cution in 2008 and journalist’s gence). Responding to testing of granted his motion for DNA request regarding for records state certain crime scene evidence. Those alleged efforts to convince media CIA’s pending, and no proceedings court remain they outlets not to make what had currently execution date is scheduled. Hughes Explor- learned about the Glomar requests Roth submitted the FOIA er, Agency refused to either confirm or January issue this case Since deny it had such records. whether See any parties longer dispute no issues CIA, 1009, 1011-12 Phillippi v. request Roth addressed to regarding (D.C.Cir.1976). Thus the term “Glomar At- the Executive Office for United States In response” entered the FOIA lexicon. torneys, exclusively focus us, we shall the case before the FBI refused to requests for documents from deny Roth’s two contained confirm or whether its files Justice, 656 regarding the FBI. Roth v. U.S. the five individuals (D.D.C.2009). proof n. 3 In F.Supp.2d request named Roth’s without sought “any they and all rec- were either dead or had consent- request one Roth, Buckner, release of the information. relating Jerry ords” Bower’s ed to the of this F.Supp.2d support at 158. attorney, trial and the four individuals 1172 camera review as well. See 5 U.S.C. the FBI relied on FOIA response,

Glomar 552(a)(4)(B) 7(C), which, § a district court (permitting as ex- 6 and Exemptions above, in a case to examine withheld docu- exempt certain FOIA plained camera). protect Importantly, the ments in since the from disclosure to documents provided response 5 FBI a Glomar to Roth’s parties. interests of third See privacy (7)(C). 552(b)(6), request concerning FBI for information § The later FOIA U.S.C. Gordon, Ford, no regarding Langford, Leckie we have request Roth’s processed way whether the FBI has in- knowing evidence that Leckie provided after Roth died, linking the men to the 1983 mur- dropped and Roth has his re- formation had Jerry other than regarding information ders files those listed quest Roth, request. In F.Supp.2d Buckner. at 158. Roth’s second FOIA other words, Thus, we not know docu- only responses the FBI’s Glomar do whether the Gordon, regarding Langford, produced and Ford re- ments the for in camera only review are the documents main at issue. Id. possession might implicate that Gor- FBI’s to Roth’s second FOIA respect With don, Langford, or Ford. particu- request records contained —for only Ruling on the FBI’s motion for pages lar FBI documents sum- files— issue, mary judgment, are still at 36 of which the FBI has the district court deter- entirety that response prop- withheld their and 26 of which mined the Glomar was that, only a exceptions, have been released but contain redactions er and few withholding that Roth claims the FBI has failed to FBI’s of information from the FBI, adequately justify. According to the documents submitted for in camera review properly support it has withheld information con- found in one or more ex- Roth, emptions. F.Supp.2d tained in these documents under FOIA See 7(C), Exemptions Exemp- appeal, challenges 6 and as well as 159-67. On (1) 7(D), which, explained, tion as we have district had court’s conclusions he identify sufficiently from disclosure criminal-investi- failed to protects compelling gative produced justify records that if “could rea- the disclosure of sonably expected to that might be disclose identi- intrude on third- ty party privacy protected by of a confidential source” or “information interests Ex- (2) 7(C), by” emptions furnished such a source. 5 U.S.C. 6 and 552(b)(7)(D). § government had satisfied its burden of proving that the un- information withheld FBI provided the district court with 7(D) der was furnished Vaughn supplemental index and then a reasonably expected could be to disclose Vaughn index described the withheld identity of a confidential source. Our explained information and its reasons for summary review of the district court’s refusing Vaughn to disclose it. See v. judgment decision is de novo. See Juarez (D.C.Cir.1973) Rosen, F.2d 826-28 Justice, (requiring agencies resisting FOIA disclo- (D.C.Cir.2008). they sure to index the information are withholding provide non-conclusory and to II. so). justifications doing The district disputed providing response court reviewed in camera the its Glomar responsive request regarding documents that were to Roth’s Roth’s for information Ford, Gordon, Langford, the FBI re- request, second FOIA and those docu- 7(C), arguing ments have been for our lied on 6 and Exemptions submitted compiled purposes. for such it or Ford were confirming whether mere act of that the notes, correctly men “FBI records regarding these As Roth are has records even with criminal to them records [under tend associate not law enforcement FOIA] would constituting an unwarranted activity, thus by virtue of the function that the simply FBI also privacy. their FBI, invasion of Vymetalik FBI v. 785 F.2d serves.” justify with- exemptions these (D.C.Cir.1986). invoked example, 1095 For contained the docu- holding information joba compiles regarding the FBI records for in camera review. ments submitted may scope fall outside the applicant protect privacy sought it particular, 7(C). (distin- Exemption See id. 1096 employ- law enforcement interests of “local by guishing generated “between records ees; merely mentioned parties third investigation enforcement and those law state, local, records; and non-FBI employment investiga- an generated personnel; par- third government federal 7(C) tion”). Furthermore, Exemption interest; investigative parties third ties of applicability have no to information would FBI; information to provided who intelligence-gathering in an illicit obtained [i.e., indi- personnel institution commercial lacking any rational nexus to the operation retailers, for manufactur- working viduals FBI’s law-enforcement duties. See Pratt Roth, ers, entities].” other commercial (D.C.Cir. Webster, v. 419-21 (footnotes at 161-62 omit- F.Supp.2d 1982). case, however, In this there is no ted). that the FBI reason to believe would have 7(C), requires which Exemption Gordon, regarding information compiled prove only that disclosure Langford, or Ford the context of a outside expected to consti reasonably “could be investigation. law-enforcement legitimate personal unwarranted invasion of tute an Accordingly, interpreted the FBI Roth’s than Ex is “somewhat broader” privacy,” request regarding for information these requires proof which emption investiga- criminal request men “as for “clearly personal unwarranted invasion of parties.” information about ... tive third Reporters U.S. Justice privacy.” ¶24. Hardy the FBI Second Decl. As Press, 489 Freedom the C omm. out, by stating seeking that “he is points 749, 756, 1468, 103 L.Ed.2d relating persons to the ‘documents ” (1989). If the information withheld killers,’ the real have been identified as for law enforcement “compiled here was essentially confirmed that Roth has implicating Exemption thus purposes,” likely compiled he seeks was information 7(C), have no need to con then we would purposes. (quot- for law-enforcement Id. all separately because Exemption sider ing Opp’n Pl.’s Mem. in to Mot. for Summ. that would fall within 7). court, Like the district we thus J. also be im scope Exemption would the FBI has satisfied its conclude Exemption under mune from disclosure showing that all docu- threshold burden of 7(C). in- responsive requests, ments to Roth’s Gordon, any that relate to cluding might

Although not that the disputing Ford, Langford, compiled were for law in the documents information contained Roth, purposes. enforcement review was “com submitted for in camera result, 6,166. F.Supp.2d at 161 n. As a we piled purposes,” for law enforcement 7(C) than Exemption focus on rather shall contends that the FBI has failed to demon of the Exemption 6 since broader records it any strate that undisclosed Gordon, two. regarding Langford, might have certainly disclosure individuals continue to have a

To determine whether reasonably expected significant being be to consti interest in not associated “could personal an invasion of investigation quadru tute unwarranted into a brutal 7(C), privacy” purposes thirty than ple homicide committed less privacy must “balance the interests Furthermore, we years ago. argument Roth’s compromised that would be disclosure Gordon, privacy Lang- that the interests of in release of the against interest ford, by and Ford are diminished their information.” Davis v. U.S. requested contrary criminal records runs to the Su Justice, 1276, 968 F.2d 1281 Dep’t in preme recognition Department Court’s of (D.C.Cir.1992). have no doubt that We Reporters v. Committee Justice of significant requests implicate Roth’s FOIA that even Freedom the Press convicted of “long privacy interests. As we have rec privacy criminals have substantial inter “ ognized,” the ‘mention of an individual’s “rap est their sheets.” 489 U.S. at 762- engen name in a law enforcement file will 71, 776-80, 1468; 109 S.Ct. see also speculation der comment and and carries a Justice, Dep’t McNamera v. U.S. 974 of ” stigmatizing connotation.’ Schrecker v. (W.D.Tex.1997) 946, F.Supp. 959 (noting Justice, 657, F.3d of any that “the court was unable to find case (D.C.Cir.2003) CIA, (quoting Fitzgibbon v. holding prisoner privacy that a has fewer (D.C.Cir.1990)). 911 F.2d We information, rights private in disclosure of only targets that not have thus held of public other than for information made investigations, law-enforcement but also during proceedings, the criminal than the “witnesses, informants, investigat and ... us”). rest of But even if individuals with ing agents” have a “substantial interest” might criminal records have some cases ensuring relationship that their to the in privacy being reduced interest not (inter vestigations “remains secret.” Id. activity associated with criminal because omitted); nal quotation marks see also Sa reputations already their have been tar- Servs., SEC, Inc. v. feCard crimes, previous nished their this is (D.C.Cir.1991). hardly Gordon, such case. Most of argues privacy that the interests Langford, and Ford’s convictions are for implicated requests his FOIA are atten- drug firearms and offenses. Sikes Deck (1) uated two reasons: more than a ¶¶ Although pleaded guilty 4-6. Gordon quarter century passed since the 1983 ¶ deadly 4(b), weapon, to assault with a id. (2) murders, Gordon, Langford, since presented Roth has no any evidence that records, significant and Ford have criminal previously of the three men has been ac- they likely would suffer less embarrass- murder, much cused less convicted of reputational being ment and harm from reason, crime. For being this associat- investigation associated with the FBI’s quadruple likely ed with a homicide would ordinary, the murders than would law- precisely type cause them of embar- abiding Especially citizens. given par- Ex- reputational rassment and harm that ticularly heinous nature of the 1983 mur- 7(C) emption designed guard against. is ders, however, arguments neither of these If, Having determined that Roth’s persuasive. as we held in Schrecker Justice, requests implicate priva Department substantial 349 F.3d at 7(C), cy protected by Exemption passage approximately a half centu- interests ry “materially question did not we turn to the central diminish” individu- privacy als’ being precisely public interests associat- case: what interest would McCarthy-era investigations, ed with through then be furthered disclosure? Roth (1) showing bears the burden of that “the in avoiding the execution innocent public sought interest to be advanced is a man.” Pl.’s Mem. in Opp’n to Mot. for one, significant specific an interest more 1; (“[T]he Summ. J. see also id. having than the information for its own public in'knowing interest whether the fed- (2) sake,” the information he eral prosecuted and obtained likely “is to advance that seeks interest.” the death penalty against proper per- Nat’l Archives & Records Admin. v. Fav outweighs privacy son interests in this ish, 157, 172, 541 U.S. 158 twenty-five year (bolding old case.” (2004). Roth, L.Ed.2d 319 According underlining capitalization omitted and disclosure will further the interest altered)). words appeal, And on Roth al- First, ways. two will advance the leges that the “FBI continues to withhold public’s in knowing whether the and redact decades-old documents that government complied federal with its Bra- may help to prevent the execution of an material, dy obligation to disclose exculpa- asserts, innocent man” and public “The tory information to Bower’s trial counsel. powerful interest in understanding the Even in though prosecuted Bower was a procedures governmental actions that Texas court rather than a state federal lead to capital sentences in ensuring court, Justice, Department appellee potentially that exculpatory evidence is case, in dispute this does not person disclosed before a is executed.” Attorney par- Assistant United States who Appellant’s 17, 35; Opening Br. see also ticipated capital in trial Bower’s murder (“The id. at 20 requested documents by duty only any Brady had a not to learn of Roth touch upon objective the core material in the possession, FBI’s but also FOIA—to light shed on what the govern- to disclose it to Bower’s trial counsel. See up ment is to—at a time in which the 419, 437, Kyles Whitley, 514 U.S. 115 public interest in penalty the death in Tex- (1995) (“[T]he 1555, S.Ct. 131 L.Ed.2d 490 as, potential the State’s executing inno- prosecutor duty individual has a to learn of persons, cent possible and the withholding any favorable evidence known to the oth- level.”). exculpatory material high is at a acting government’s ers on the behalf in pause We to emphasize the dis case, Second, including police.”). tinction types between the two of public generally, and more Roth asserts that dis- interest claimed Roth. Since the closure will public’s further the interest in right material, to the disclosure of excul knowing whether the FBI withholding is patory recognized Brady evidence pro information that could corroborate right trial, tects a defendant’s to a fair death-row inmate’s claim of innocence. 87, Brady, 1194, see at 373 U.S. Although public this second interest was the determination of whether information not mentioned the district court’s deci- purposes is “material” for Brady fo sion and receives scant attention in the cuses how the information government’s brief, relates to appellate see Appel- other information known at the lee’s Br. 23-24 time of (suggesting Roth failed trial, 434, Kyles, see U.S. at public articulate the second interest at S.Ct. (“The level), question the district-court is not whether the we believe that adequately likely Roth in defendant would more than raised the issue both court have received a district and here. the district different verdict with the court, evidence, argued “[p]roduction that the but whether its absence he trial, of the documents at issue received a fair [in this understood as a trial case] could serve the resulting worthy substantial in a verdict confi- Ctr., Penalty Info. The Inno- dence.”). however, See Death that ev- It possible, List, http://www.deathpenaltyinfo. possession be- cence government’s idence only in material appear org/innocence-list-those-freed-death-row fore trial will 2011) (last trial. developed (listing after evidence visited June light of Although who, very case. since have inmates Consider death-row unlikely that disclo- found Fifth Circuit on new evidence of pardoned been based in the produced materials sure of the convictions or have had them innocence would have response FBI’s 2001 either were not retried or overturned and trial, Bower’s retrial). made difference at This interest acquitted were Bower, 476-77, since see media, in- itself several has manifested trial, have come forward who witnesses editorials, articles, jour- cluding newspaper in the 1983 mur- implicated others have See, novels, exposés, plays. nalistic state- of those ders. The combination Jensen, Blank & Erik The e.g., Jessica contained in the the materials ments and (2004); Grisham, The Exonerated John well response could FBI’s 2001 FOIA Grann, (2010); David Trial Confession person to doubt Bow- lead a reasonable Innocent Texas Execute an Fire: Did words, the docu- In other guilt. er’s 42; Man?, Yorker, Sept. New may mate- appear in 2001 ments released Editorial, Penalty: Death It’s see also only light post- of the witnesses’ rial To Become Capital Time Punishment Court, Supreme The trial statements. Chron., 2, History, Houston Jan. Texas however, Brady gener- that has indicated 2011, the (calling at Bll for the abolition of for evalu- ally wrong “is the framework” in “accumu- penalty death Texas because disclo- ating government’s post-trial the that the current lating evidence indicates Attorney’s obligations. Dist. sure Office penalty in application [the the death Osborne, v. the Third Judicial Dist. unacceptably high an risk of involves state] - -, 2308, 2320, 174 U.S. 129 S.Ct. Tim killing people”); Madigan, innocent (2009); see also v. L.Ed.2d 38 Skinner Re- Says Condemned Man Isn’t Witness — 1289, Switzer, -, 131 S.Ct. sponsible Slayings, Star-Tele- (2011) (“Brady an- 179 L.Ed.2d 233 (FtWorth, Tex.), 29, 2008, at gram June ad- requirement a constitutional nounced prove his (discussing IB Bower’s effort to prose- first and foremost to the dressed innocence). Thus, the pretrial.”). cution’s conduct knowing in whether the public’s interest government insists that “Bower’s complied with its federal facing capital pun- status as an individual obligations at the time of Bower’s Brady analysis not affect” our ishment should fully narrower than and does not trial is 7(C). Exemption Appellee’s Br. 37. under in- public’s general the more encompass disagree. The fact that Bower has We knowing in whether the is terest punishment been sentenced to the ultimate could cor- withholding information that interest in know- strengthens public’s Bower’s claim of innocence. roborate files contain infor- ing whether the FBI’s claim of mation that could corroborate his Furthermore, that the we have no doubt govern- The case on which the innocence. second, non-Bro(%-related public interest relies, De- Loving Department ment by Roth is substantial. re- identified (D.C.Cir.2008), says F.3d 32 fense, 550 years, high-profile cent exonerations True, in contrary. we said nothing to the generated inmates consid- death-row have Exemp- Loving dealt with FOIA inno- potential erable —which 7(C) the fact Exemption tion of individuals sentenced to death. cence —that 7(C) requester capital qualifies was a withheld under that the FOIA Brady as material. But even if bearing on the merits” of reasonable had “no prisoner (internal point, could disagree minds on this we quotation request. Id. at 39 his privacy believe interests of the omitted); marks see also U.S.C. individuals named the documents out- 552(b)(5) (providing § FOIA’s disclo- weigh any public interest in disclosure. ... requirement apply “does not sure most, At the documents contain informa- inter-agency intra-agency memoran- might tion that one consider to lie near or letters which would not be avail- dums hazy separating borderline material other than an by party law to able Kyles, from immaterial evidence. See agency”). agency litigation (noting U.S. at 115 S.Ct. 1555 merely But this statement reiterated what determining whether withheld evidence is Reporters Supreme Court said Com- for purposes Brady, “material” a court for cases in which the “Except mittee: should consider whether “the favorable ev- on a claim objection to disclosure based reasonably idence could be taken to put privilege person requesting and the dis- light the whole case such a different as party protected by privi- closure is verdict,” to undermine confidence identity lege, requesting party inquiry that is difficult for us to under- bearing has no on the merits of his or her produce take here since Roth has failed to Comm., request.” Reporters trial). the transcripts of Bower’s Al- 1468; U.S. at see also Lov- though certainly Bower has an intense ing, (quoting Reporters 550 F.3d at 39 personal interest in in- obtaining whatever Comm.). principle requires nothing This formation might Brady bolster the claims legal analysis more than that our remain presenting he is in his collateral attacks on unaffected the fact that this case was conviction, his personal Bower’s stake in lawyer brought representing Bower requested the release of the information is by party a instead of no relation to balancing public “irrelevant” to the of and Bower, academic, reporter, such as a or third-party privacy required by interests citizen simply individual interested Bow- 7(C). DEA, Exemption Mays v. 234 F.3d As weigh public er’s case. we interest 1324, (D.C.Cir.2000). 1327 a FOIA is not case, at Loving stake neither nor discovery substitute for in criminal cases Reporters Committee bars us from consid- Instead, proceedings. or in habeas its fact ering that Bower has been sen- protect is to purpose right “the citizens’ to tenced to death. government be informed about “what their ” Having concluded that the sec Comm., up Reporters to.’ 489 U.S. at type public ond of interest is both distinct 773, Mink, EPA (quoting 109 S.Ct. 1468 v. substantial, from first we and must 73, 105, 827, 410 U.S. 35 L.Ed.2d now whether the public consider either of (1973) J., (Douglas, dissenting)). 119 Al- interests Roth requires identified though public might a signif- well have FBI to disclose information withheld un in knowing icant interest whether the fed- 7(C). Exemption easily der canWe dis government engaged Brady eral in blatant pose challenge of Roth’s to the FBI’s with case, capital violations in a we are confi- of holding information from the documents that dent none of the documents we have that we and the district court reviewed in any camera reviewed in reveals such Turning camera. to in public’s first egregious government misconduct. Cf. violations, in revealing Brady Boyd terest we v. Crim. Div. the U.S. (D.C.Cir. Justice, highly any doubt that of the information 475 F.3d 387-88 acknowledge must 2007) agencies in which a rule that in a case (stating, FOIA responsive to non-capital drug existence of convicted of defendant provide specific, that non- sought request records FOIA weapons offenses “Brady-related conclusory justifications withholding might reveal he claimed misconduct,” information, of a F.2d at “single Vaughn, that a instance that see to 826-28, only ... would not suffice when con- Brady they permitted violation are wrongdoing government pattern denying show a the existence of records firming “ significant privacy cognizable as could overcome harm under would itself ‘cause ” stake”). CIA, interest v. exception,’ an FOIA Wolf (D.C.Cir.2007) (quoting Gar- F.3d public the second respect With to (D.C.Cir. dels CIA public’s identified Roth—the interest 1982)). Thus, determining whether the the FBI is knowing interest whether response, properly provided a Glomar help that could withholding information “the fact of the we must consider whether innocent death- potentially exonerate request- existence or nonexistence of [the also inmate —our in camera review row exemp- records falls within ed] information withheld under revealed no merely acknowledging tion.” Id. Since 7(C) substantially Exemption that would regarding FBI has information that Leckie, corroborate Bower’s claim Gordon, Langford, and Ford would tend to Gordon, Ford were the Langford, and activity, thus associate them with criminal True, argues, “it is true killers. as Roth impinging privacy, on their the FBI’s Glo- entirely importance possible response, countervailing mar absent a only the withheld documents would be disclosure, public appropri- interest in was knowledge clear to one who extensive 7(C). Where, ate under as trial, sentencing, of the Bower and habeas here, public the asserted is the Appellant’s Opening Br. proceedings.” misconduct, the revealing only weigh But can 39. we Supreme decision in National Ar- Court’s private at stake based on interests v. Fav- chives & Records Administration us, and it was Roth’s the record before requires requester ish that the FOIA “es- the district court responsibility provide suspicion” tablish more than a bare and this Court with the information nec misconduct. 541 U.S. S.Ct. essary balancing. Based perform Instead, requester pro- “the must us, presented on the information we duce evidence that would warrant a belief appropriately conclude that the FBI acted person alleged a reasonable that redacting in information under have oc- impropriety might Government 7(C) from the in camera documents. Only curred.” Id. if Roth satisfies this to response The FBI’s Glomar requirement proceed will we to threshold request regarding Roth’s for information Gordon, Langford, and Ford’s in- balance Gordon, Langford, presents and Ford having the FBI neither confirm terest FBI more difficult issues. Since the relating of records deny nor the existence deny refused to confirm or whether it has against public them interest at to men, have regarding information these we Boyd, stake. See way any informa knowing no whether qualify Brady begin as with the first might tion have would We by Roth-—the interest know- material could corroborate Bower’s identified government the federal violat- ing claim of innocence. Because Glomar re whether Brady obligations at the time of sponses exception general are an to the ed its trial, during that trial. As evidence that the feder- learned his the FBI Bower’s produce to to failed what he believes is mate might well have failed government al exculpatory regarding rial and information to infor- Brady, points Roth comply with ”). government the murders.... If the for the that he claims was disclosed mation challenge wished to Roth’s failure pres time in the FBI’s 2001 FOIA re- first a sworn ent declaration or other evidence above, explained As the docu- sponse. demonstrating pro that the information in 2001 indicated that one produced ments previously duced in 2001 had not been was involved in ille- of the murder victims disclosed, it should have done so dealing; that gal gambling drug Julio Catrett, Corp. district court. See Celotex ammunition Fiocchi .22-caliber subsonic 317, 323, 7 U.S. 47 gun shows and has purchased could be (1986) (“[A] party seeking L.Ed.2d 265 uses; just that as Bower’s trial legitimate summary judgment always bears the ini FBI beginning against was decided tial responsibility informing the district planned comparison ahead with a going motion, court of the basis for its and iden- the bullets taken from the victims’ between tifying portions ‘the pleadings, those lot num- and bullets from the same bodies depositions, interrogatories, answers to purchased; Bower had ber as file, together and admissions on with the readily are avail- Catawba silencer tubes affidavits, any,’ if which it believes demon- many able from sources. genuine of a strate absence issue of in government For part, its 56(c) (quoting material fact.” Fed.R.Civ.P. rely on the docu sists that Roth cannot (1986))). government’s single com- his produced support ments 2001 to ment that “Roth proffer any failed to ha[d] argument because in the district Brady evidence, evidence, compelling much less any proof court he failed to offer engaged any that the FBI illegal activi- provided those documents were ty” hardly was sufficient to alert Roth that agree trial Bower’s counsel 1984. We government challenge meant his argument “silly.” with Roth that this claim that the information revealed in 2001 Reply Br. 1. In the district Appellant’s not previously had been turned over to court, clearly argued Roth that the 2001 attorney. trial Reply Bower’s Def.’s & Bra response contained undisclosed Opp’n to PL’s Cross Mot. 14. Had the ¶ dy Compl. (alleging material. See challenge raised in the Attorney’s and the U.S. Office court, might responded district have provide had failed to evidence to Bower’s stating with an affidavit that the informa- Brady trial counsel “in violation of v. Ma produced tion 2001 was not disclosed at ryland”); Opp’n Pl.’s Mem. in to Defi’s the time of Bower’s trial. See Roth Decl. (“The ¶ Mot. for Summ. J. 6 Director, Bower v. Tex. documents withheld from the 1990 Div., and/or No. Crim. Justice-Inst’l I:92cvl82 produced in 2001 production (E.D.Tex. 2002) FOIA but July in a (averring sup included evidence that would have in declaration submitted Bower’s federal and, Mr. in Plain ported Bower’s defense proceeding habeas that of the doc- “[m]ost view, material, exculpato tiffs constituted produced uments in FOIA re- ry information that should have been sponse” were not made available to Bow- trial, counsel). turned over to the defense before having er’s trial But failed to pursuant Brady Maryland....”); id. in court in argument raise the the district (“Through put at 28 documents that the a manner sufficient to Roth on notice it, ..., government in 2001 Mr. has of the need to rebut finally released Bower regarding files contain records Gor- doing so for the first time FBI’s barred from See, Ford, don, e.g., Dep’t Langford, Elliott v. U.S. Roth must show appeal. (D.C.Cir.2010). 842, 851 Agric., person 596 F.3d that a reasonable could believe (1) result, fa that the following might As a we shall assume be true: that the in 2001 the FBI released drug vorable evidence dealers the real kill- Oklahoma were (2) trial provided ers, had not been to Bower’s withholding the FBI is and counsel. information that could corroborate Favish, 174, 124 theory. See 541 U.S. at how assumption, Even under this view, S.Ct. 1570. In our Roth has made ever, argument has Roth’s —that showings. both knowing interest in whether significant federal failed to disclose trial, Since Bower’s two witnesses— Gordon, Lang- Brady regarding material Langford’s ex-girlfriend and Leckie’s wid- ford, at the Favish or Ford —still falters im- provided ow—have sworn statements (1) that argues threshold. Roth the FBI’s plicating drug the Oklahoma dealers. response contained undisclosed FOIA combined When with the evidence (2) material, Brady that one can infer response that one of FBI’s FOIA might from fact that the FBI have may murder victims have involved been But possession. other such material its illegal gambling drug dealing step argument given the first of this fails that the ammunition used in the murders Fifth affirming Circuit’s decision prosecution was not as rare as the claimed petition. denial of Bower’s federal habeas uses, put legitimate and could be these Bower, Reviewing See 497 F.3d at 476-77. might witnesses’ statements well cause a very FBI disclosures Roth contends person guilt. reasonable to doubt Bower’s material, Brady constituted the Fifth Cir respect showing With to the second Roth cuit concluded that the information “was person must make—that a reasonable purposes Brady. not material” for Id. might could believe that the FBI be with- requires at 477. Our case law that we holding information that could corroborate defer to this decision. Martin v. See Bower’s claim of can innocence—there be Justice, 446, 453, 456-58 no doubt that past the FBI (D.C.Cir.2007) (deferring to a district failed to disclose information favorable to in a separate pro court’s decision habeas upon request. agency’s Bower ceeding that sought by the information response FOIA contained information that requester Brady was FOIA “not materi was neither disclosed to Bower’s trial al”). produced response counsel nor to simi-

Having disposed argu of Roth’s lar requests submitted on Bower’s above, explained ment that he is entitled to further disclo behalf in 1989. As Bower public’s previously sures based on the interest re now relies on some of this un- violations, vealing Brady we turn to the disclosed information to bolster his claim interesting question far more of whether The fact that the FBI innocence. with- may approxi- overcome the FBI’s Glomar re held such information until trial, sponse public’s general mately years based on the more seventeen after Bower’s knowing whether the FBI is “would warrant a a reasonable belief withholding person” information that corrob that the FBI have “might” could other potentially orate Bower’s claim of To exculpatory innocence. its files, likely possibly including demonstrate that information re- this interest is Gordon, by disclosing garding Langford, be advanced whether the or Ford. Id.

1181 only after the apparent became defendant argument, At oral sentenced. disregard the state had been convicted and See urged us to counsel Osborne, Skinner, 1300; ex-girlfriend because at 129 Langford’s ments of in Texas found that Certainly, court is no indi- a state habeas S.Ct. at 2320. there story bore setting Circuit, forth her conducting affidavit cation that the Fifth Bower, reliability.” parte Ex analysis, “no indicia Brady its considered the affida- 33429-A, 33428-A, 33426-A, 33427-A, Nos. Langford’s ex-girlfriend and Leck- vits (Tex. 2 15th Dist.Ct. Jan. slip op. at Bower, 497 F.3d at 476- ie’s widow. See 1990). this contention for by raising But result, there is no conflict be- 77. As a gov argument, time at oral the first tween the Fifth Circuit’s affirmance meaningful Roth of a deprived ernment our petition denial of Bower’s habeas and is respond. argument opportunity that a holding here that Roth has shown States v. thus forfeited. See United person reasonable could believe that (D.C.Cir. Southerland, 1360 might withholding FBI information that be 2007) raised for (noting argument that an Bower’s claim of inno- could corroborate argument generally time at oral is the first cence. forfeited). addition, In al considered obligations Roth has satisfied his Since litigation filed in this though Roth has not Favish, proceed under we must to balance Langford’s ex-girlfriend the affidavits public private interests at stake in widow, denying decision Leekie’s Favish, this case. at petition federal habeas describes Bower’s 1570; Boyd, see also S.Ct. F.3d testimony given by Langford’s ex-girl Gordon, Langford, and Ford Although see Bower Ha proceedings, friend in those significant avoiding any have a interest 23-24, 1:92cv182,slip Op., op. No. beas investigation a criminal association with nei government’s appeal brief on see, homicide, quadruple e.g., into a infor summary Roth’s of the disputes ther Schrecker, 666, the public 349 F.3d at also of Leck mation contained the affidavit compelling knowing has a interest challenges specifically ie’s widow nor refusing the FBI to disclose whether is with the failure to file the affidavit Roth’s help that could exonerate Ford, court, see United States district interests, Weighing competing Bower. Cir.1999) (6th n. F.3d tilts decided- we conclude that the balance (“Even arguments by fail appellees waive ly disclosing in favor of whether the FBI’s them.”). ing to brief Gordon, linking files contain information Brady argument, In contrast to Roth’s investiga- Langford, or Ford to the FBI’s Fifth the deference we owe the Circuit’s result, we shall killings. tion of the As prevent us from habeas decision does rejection the district court’s reverse the Fav- concluding that Roth has satisfied FBI’s re- challenge Roth’s to the Glomar respect to his claim that ish standard with sponse proceed- and remand for further in knowing has an interest ings. withholding informa- whether the is so, however, emphasize we doing tion that could corroborate a death-row it has the FBI need not disclose whether That claim of innocence. inmate’s the three men that information about way hinges complex- the doctrinal in no investigation to its into the 1983 unrelated progeny. As ex- Brady ities of and its in know- above, public’s murders. The interest is it is at best unclear plained infor- the FBI’s files contain ing whether Brady framework extent which Bower’s materiality mation that could corroborate to evidence whose apply would innocence, in- knowing Despite assumption not in all ise. the dissent’s claim may formation the FBI have about contrary, expressly this circuit re- said, That the FBI will need three men. deciding adopt frained from whether to any to reveal the existence of records con- categorical public’s rule that the interest Gordon, or Ford to the necting Langford, revealing Brady cannot violations over- mur- agency’s investigation into Exemp- come invocations of course, exist, they if ders. Of such records 7(C). Martin, tion See 488 F.3d at 458 one or more FOIA may well fall within (noting that open “issue remains an if in course example, For exemptions. circuit”). question Certainly, in this we the FBI obtained the investigation of its public’s have never held that the interest Gordon, Lang- history records of criminal revealing Brady categori- violations is ford, Ford, im- those records would be cally insufficient to warrant disclosure Reporters mune from disclosure. See where, here, as an individual has been Comm., 776-80, U.S. at 109 S.Ct. 1468. clear, sentenced to death. And to be we But fact that fall the mere records within a True, reach holding no such here. we exemption provides justification no distinguished have in- public’s between the failing acknowledge their existence. knowing gov- terest in whether the federal significant public Given the interest Brady rights ernment violated Bower’s knowing whether the FBI withholding is public’s and the in learning interest wheth- potentially help information that could withholding er the FBI is information that innocence, prove Bower his the FBI must could corroborate Bower’s claim of inno- produce any linking either records it has supra cence. See But pp. 1175-76. our Gordon, Langford, investiga- or Ford to its drawing of this distinction had nothing to murders, tion into the four or it must question categori- do with the of whether a practice follow the normal in FOIA cases requesters cal rule bars FOIA from identifying the records has withheld seek- stating its for doing ing reasons so. See Brady implicating third-party material Vaughn, 484 F.2d at 826-28. Instead, privacy interests. we discussed Brady difference between Roth’s

Taking approach, a different the dissent -Brady non (1) public-interest related theories presents following syllogism: our to explain why the Fifth Circuit’s habeas categorical case law has embraced the rule decision, that the undermined public’s revealing fatally interest Bra- which Roth’s dy violations “does not suffice to override Brady-related theory, did not also doom privacy parties interests of third his non-Brady theory. supra p. See files,” named in ... law enforcement Dis- Perhaps recognizing the weakness of its (2) 1188; senting Op. purposes syllogism, the dissent also contends that FOIA, “meaningful” there is no difference Supreme Reporters Court’s decision in public’s learning between the interest supports categorical Committee rule that Brady public’s violations and the interest public’s learning whether uncovering government’s post-trial the government withholding withholding of information that could cor- that could corroborate a in- death-row roborate a convicted defendant’s claim of mate’s claim of innocence cannot overcome (3) 1167; therefore, innocence, id. at our third-party privacy protected by interests law supports categorical case rule that 7(C). Reporters But Commit- outweigh privacy the latter interest cannot 7(C), readily distinguishable tee is from this protected by Exemption interests see There, The syllogism prem- requesters sought id. fails at the first case. the FOIA record, public where that interest is history processes criminal tion citizen’s private a conclud of which the Court the disclosure The dissent cites directly addressed.” Id. or to further nothing” do “little would ed in authority support proposition, no of this public informing of purpose FOIA’s hardly surprising. simply It which is to.” up is the[] about “what say public’s makes no sense to that (internal 773-75, 109 at S.Ct. 1468 489 U.S. particular in a of information piece interest omitted); id. at marks see also quotation merely mecha- multiple reduced because (“[W]e cate hold as a S.Ct. 1468 obtaining exist for that infor- might nisms request party’s matter that third gorical much of the The dissent makes mation. or information law enforcement records type of fact that information reasonably be private citizen can about may criminal through be available seeks privacy, to invade that citizen’s expected 1166-67, discovery. civil id. at See no request when the seeks and that ‘offi But we have made clear that the 1169-70. about Government cial information’ merely records that Gov criminal agency, availability but of and civil potential inva storing, happens be ernment way discovery in no bars an individual ” (empha privacy is ‘unwarranted.’ sion obtaining through from FOIA added)). Here, contrast, by requiring sis exemption applies. where no otherwise possesses it FBI to disclose whether Justice, Morgan v. U.S. See Gordon, linking Langford, or any records (D.C.Cir.1991). “Indeed, F.2d quadruple investigation to its of the Ford there are situations in which FOIA will con light “shed ... on the murder would access to information that would permit Id. at agency.” Government a[] duct discovery.” available Id. through not be 773, 109 it would particular, 1468. In S.Ct. omitted). (internal Fur- quotation marks revealing public’s further interest thermore, litigation the “criminal and civil withholding the FBI is informa whether would by discussed the dissent processes” that could the claim tion corroborate who, to a requester unavailable FOIA helped put a man it on be innocence of whom Report (noting Roth, row. id. death has no with Bow- relationship unlike Cf. Committee, the “not requesters did ers Dissenting dissent’s Op. er. 1189. The about the con anything intend to discover appears approach thus inconsistent agency possession of the that ha[d] duct that “the principle fundamental FOIA records”). requested has no identity requesting party of the “[B]orrow[ing] Reporters words bearing on the merits of his or her FOIA Committee,” be- the dissent nonetheless Comm., Reporters 489 U.S. request.” public that the balance between lieves reasons, 771, 109 1468. all these S.Ct. For “characteristically tipwill interests private of course with the dis- although agree we re- in favor of when a ... non-disclosure Reporters makes sent Committee Information private about quester seeks categorical “may appro- be clear rules to a in files related parties third contained cases, be- priate” we nonetheless Dissenting Op. at prosecution.” criminal justify lieve that the dissent has failed Because, answers, Why? dissent 1189. categorical because proposed approach its accurately assessing public “the persuasive provided explanation no liability exposing prosecutorial criminal or into a why particular “case fits as to invariably investigative misconduct is the balance genus [between which the exis- lessened the FOIA context characteristically litiga- private interests] traditional criminal and civil tence of tips one direction.” Id. at S.Ct. or “information furnished” such a 552(b)(7)(D). § source. 5 U.S.C. 7(D) agency invoking Exemption bears the Finally, in our sealing minds proving burden of that it applies, and with point, categorical approach dissent’s FBI, producing respect risks to the it consequences enough absurd is not for the highly Congress we doubt intended. For agency to claim that all providing sources rationale, example, under the dissent’s information in the of course a criminal appears that uphold we would have to investigation do so aon confidential basis. withholding FBI’s of information under Landano, Dep’t See U.S. Justice v. 508 of 7(C) Exemption if even we knew for cer- 165, 171, 181, 2014, U.S. 113 124 S.Ct. tain from the FBI’s in camera submission (1993). Instead, L.Ed.2d 84 the FBI must agency that the deliberately withholding “point to narrowly more circum- defined conclusively records showing that ... support stances that the inference” of drug Oklahoma dealers were the true kill- 179, confidentiality. Id. at 113 S.Ct. 2014. adopt ers. We decline to a rule so at odds express When no assurance of confidential- prodisclosure with “FOIA’s purpose.” exists, ity courts consider a number of Favish, 174, 124 S.Ct. 1570. factors to determine whether the source Instead, engaged we have balancing “spoke nonetheless with understanding contemplated 7(C), by Exemption conclud- that the communication would remain con- ing case, that in the circumstances of this 172, fidential.” Id. at 113 S.Ct. 2014. where the FOIA requester has surmount- These factors include “the character of the fairly ed the substantial hurdle of showing issue,” crime at “the source’s relation to that a person reasonable could believe that crime,” whether the source received FBI might be withholding information payment, and whether the source has an that could corroborate a death-row in- “ongoing relationship” with the law innocence, en- mate’s claim of the balance mili- agency forcement and typically tates in favor of communi- fuller disclosure. See id. cates with (noting agency “only Exemp- at locations 7(C) tion requires courts “to balance the and under conditions which assure the con- party’s] privacy [third against tact will not be noticed.” Id. at disclosure”). public interest in (internal S.Ct. 2014 quotation marks omit- ted). Even when the FBI contends that a III. source received an express assurance of This brings finally us challenge Roth’s must, confidentiality, it “permit order to to the FBI’s withholding of information judicial review,” meaningful present suffi- 7(D). under Exemption This issue relates cient evidence that such an assurance was only to information redacted from the doc- given. fact Campbell Dep’t v. U.S. of uments we have reviewed in camera. It Justice, (D.C.Cir.1998). 164 F.3d implications has no for the FBI’s Glomar response, which the agency sought justi- 7(C), Unlike Exemptions 6 and 7(C). fy only Exemption under 7(D) Exemption requires balancing no private interests. See Parker v. Where, here, as the records at Justice, issue were “compiled by criminal law en (D.C.Cir.1991). If production the FBI’s forcement authorities] the course of a criminal investigative records “could rea criminal investigation,” they are covered 7(D) sonably expected be to disclose the identi Exemption if producing the rec reasonably ty ords “could expected a confidential be to dis source” or “information close the identity of a confidential source, source” by” furnished such a that ends the judicial review its matter, FBI is entitled to withhold era to confirm conclu- and the 7(D). 7(D) Exemption 5 sions. The invoked records under 552(b)(7)(D). four respect categories § sources: U.S.C. agencies; local law enforcement infor- complains that the FBI’s assigned mants who have been confidential supplemental Vaughn Vaughn index numbers; symbol parties source third “only generic re index contain statements symbol without source numbers who none- confidentiality,” failing to thus sat garding provided theless information under an ex- isfy proving the FBI’s burden press of confidentiality; assurance and from or withheld information came could parties provided third who information un- confidential identify Appellant’s a source. an implied confidentiality. der assurance of law, ease Opening Br. 44. Under our Roth, See 656 at 165. have F.Supp.2d We invoking exemption a FOIA must agencies sufficiency no to assess need the of the explanation a provide specific, detailed FBI’s explanation for its conclusion that applies the why exemption the to withheld agencies local law enforcement provided F.2d at Vaughn, materials. 484 826- See an information with expectation of confi- Reviewing documents in camera is no 28. dentiality because limited the amount of obligation government’s “substitute for the information that the FBI withheld based provide public jus to indexes detailed implicates on rationale personal this also Lykins possible.” tifications whenever privacy interests thus falls within the Justice, 7(C). scope Exemption respect With to (D.C.Cir.1984). Requiring agencies to source-symbol-number informants, public explanations for their redac provide in its explains Vaughn index that it testing of the tions allows for adversarial “assigns symbol permanent source num- claims, focus agencies’ helps which ... bers to confidential informants who important on most court’s attention report on regular information to the FBI litigation may reveal not issues an pursuant ‘express’ basis to assurance of agencies’ in the apparent otherwise flaws ¶ confidentiality.” Hardy First Deck 83. id.; reasoning. Vaughn, see See also directly challenge Given that Roth fails to said, recog at That have F.2d we on appeal, statement we conclude nized “that there are occasions when ex the FBI borne of proving has its burden public justification would threaten tensive it an provided express assurance of very to reveal for which a information confidentiality source-symbol-num- to the Lykins, exemption is claimed.” ber informants mentioned cam- Although in F.2d at 1463. such case an era Mays, documents. See F.3d agency required provide is still as much (upholding withholding FBI’s 1328-29 it explanation “giving as can without of information furnished infor- “coded it away trying the information to with mant” an “describing] based on affidavit hold,” explanation it may supplement its practice identifying the DEA’s standard by making the documents available with such codes confidential informants” camera review. Id. 1463-64. (internal omitted)). quotation marks Here, generally the FBI has struck an balance, 7(D) appropriate publicly explaining remaining Exemption redac- why the extent it can concluded that tions relate to informants whom the FBI assigned symbol information un- no source numbers. provided certain sources implied Having or reviewed the documents and the express der assurance indexes, Vaughn think it confidentiality relying and then cam- we obvious most of these provided individuals infor- communication would remain confiden- Landano, express implied mation under an as- tial.” 508 U.S. at confidentiality. surance of The docu- S.Ct. 2014. parties ments have labeled But our in camera review dis 98-99, 111, and convey 477” “Roth/Bower closes two instances which the FBI’s provided by two sources who explanation stated for redacting informa “specifically requested [that] their identi- 7(D) tion under fails to corre they ties not be disclosed because feared spond to actually the information con ¶87. reprisal.” Hardy First Decl. In- tained Although documents. deed, the documents themselves contain FBI claims that paragraph the last positive gave indications that the FBI 108 contains information pro Roth/Bower express sources assurances of confiden- vided an informant who had been as tiality. Specifically, the documents state signed symbol number, a source no such that one source anony- “desired to remain informant is mentioned in that paragraph. mous,” and the name of the second Instead, the paragraph describes informa source by is followed “protect the words tion by obtained a local law enforcement identity” in parentheses. Similarly, agent in an interview with a named indi 206 indicates that the source Roth/Bower vidual. The problematic other redactions discussed in that document “confidentially appear carryover in the paragraph of information, advised” the FBI of certain Although 112-13. the FBI Roth/Bower thus indicating that the source had an properly has redacted information from expectation of confidentiality. With re- paragraph’s this second sentence that re spect to sup- the FBI’s Roth/Bower source-symbol-number lates to a infor plemental Vaughn explains index that the mant, it has provide failed to any support source discussed in the “provid- document for its contention that each of the other ed information to the FBI for a number sources discussed in carryover the para years of as a confidential informant with graph received express assurances of con express an promise of confidentiality.” ¶ fidentiality. See First Hardy Decl. 87- ¶20. Hardy Second Decl. Finally, the ¶ 88; Hardy Second Decl. 18.

Vaughn index states that the source dis- Accordingly, the FBI has failed to bear cussed in “pro- and 256 Roth/Bower its burden of proving that the information specific vided detailed information that is redacted from the paragraph last singular in of concerning nature the criminal 108 and [Bower], carryover para- involving associates, activities Roth/Bower his (with graph of subjects other 112-13 of the ex- [the inves- Roth/Bower FBI’s] and/or sentence) ¶81. ception of the tigation.” second Hardy First falls within Decl. Al- 7(D). though scope Exemption of said, this That quite statement conclusory, the FBI might properly the FBI well invoked difficulty Exemptions have had 7(C) revealing much 6 and more to withhold information without information impli- running cating personal the risk divulging privacy the source’s interests. We identity. Having leave the task of separating reviewed the wheat Roth/Bower camera, 254 and 256 in from the chaff we conclude that to the district court in the given the brutal nature of first quadruple instance. Specifically, the court homicide and the source’s relationship should first portions determine which with at victims, least some of the paragraphs two fall Exemptions within likely 7(C) source provided information to the 6 and and then order the FBI to FBI “with an understanding that produce all segregable, non-exempt infor- 552(b) original investiga- (“Any § rea- criminal Because 5 U.S.C. mation. See conducted a record into these murders was portion of tion sonably segregable investigators, as any requesting as well state person to federal provided shall be responsive portions possessed deletion of the number such after record subsection.”). many under over exempt this FBI turned which are documents. response documents Roth his those IV. But FBI declined to request. thereof) (or reasons, portions documents foregoing produce we affirm For the far- private remand for contained information about part, part, reverse and opin- parties, including ther consistent with about three proceedings third ion. In de- still-living drug Oklahoma dealers. information, clining produce such ordered.

So 7(C). That FBI cited FOIA KAVANAUGH, Judge, Circuit exemption authorizes the Government to part part dissenting concurring the disclo- law enforcement files withhold reasonably expect- “could be of which sure Bower was convicted Lester invasion to constitute unwarranted ed four jury murdering state-court Texas personal privacy.” 5 U.S.C. His was sentenced to death. men. Bower 552(b)(7)(C). § been death sentence have conviction pro- habeas appeal, state affirmed 7(C), the Su Interpreting Exemption proceed- federal habeas ceedings, and this have ruled preme Court Court ings. ordinarily a tool proper that FOIA is not innocent. maintains that he is Bower to information from public for the obtain forward He two witnesses who came cites files to a criminal relating law enforcement drug that four suggested Oklahoma informa disclosing when the prosecution mur- responsible for these dealers were infringe interests of privacy tion would the ders. v. Re parties. Dep’t third See Justice of law, pursu- to Texas Bower is Pursuant Freedom porters Committee of for ing proceeding DNA post-conviction Press, 749, 761-71, 780, 109 S.Ct. 489 U.S. show attempt court in an Texas state (1989); 1468, L.Ed.2d see 103 774 also on his His execution remains innocence. Admin. v. Fav Nat’l Archives & Records matter of state law while hold as a 157, 173-75, ish, 1570, 541 U.S. process continues. (2004); Dep’t v. 158 L.Ed.2d 319 Martin of Justice, 446, (D.C.Cir.2007); F.3d 488 457 Informa- is a federal Freedom of

This Dep’t Boyd v. habeas, Criminal Division case, criminal, tion Act not of of (D.C.Cir. Justice, 381, F.3d 475 387-88 attorney, proceeding. Bower’s clemency States, 2007); Oguaju v. 378 F.3d Roth, United requests Anthony submitted 1115, (D.C.Cir.2004); 1116-17 Schrecker v. FBI to release documents asked Justice, 657, F.3d Dep’t 349 666 investi- underlying to the criminal related (D.C.Cir.2003); Spirko v. U.S. Postal records gation killings, these as well as 992, (D.C.Cir.1998); Serv., 147 F.3d claims 998-99 relating to the four men that Bower Re- Computer Social the murders. committed Professionals for lic). separate solely opinion, opinion majority This focuses join Part III of the I 7(D). 7(C) Exemption I dissent Exemption addresses which issue. II, which Part addresses from 1188 Serv., argues 72

sponsibility requested v. U.S. Secret F.3d docu- 897, (D.C.Cir.1996); Maga 903-05 Nation ments would show that the Federal Gov- Service, 885, information v. 71 F.3d withheld exculpatory U.S. Customs ernment zine (D.C.Cir.1995); Dep’t its Brady obligations 896 Davis v. Jus and violated (D.C.Cir. tice, 1276, 968 F.2d Bower’s respect 1281-82 1984 Texas state-court SEC, 1992); Servs., v. Brady Inc. 926 trial. But claimed has violation SafeCard 1197, (D.C.Cir.1991); F.2d 1205-06 Fitz been addressed in Bower’s criminal and 755, and, v. gibbon proceedings 911 F.2d 767-68 habeas precedents as our CIA (D.C.Cir.1990); Justice, indicated, King consistently v. Dep’t have does suf- (D.C.Cir.1987); F.2d 233-35 Fund fice to the privacy override interests of parties Constitutional Gov’t v. Nat’l Archives third named in such law enforce- Serv., See, Martin, e.g., & Records 656 F.2d 861-66 ment files. F.3d at (D.C.Cir.1981); Justice, 457; Dep’t 387-88; Baez v. Boyd, Oguaju, F.3d at (D.C.Cir.1980); F.2d 1337-39 378 F.3d at 1117. cf. Justice, Morgan suggests Roth also only pass- —albeit Walsh, (D.C.Cir.1991); North v. 881 ing case is not controlled —that (D.C.Cir.1989). 1088,1094 F.2d precedents settled FOIA because those cases are about proving the defendant’s said, As this “privacy Court has inter- Here, trial. according innocence are particularly ests difficult to overcome Roth, requested documents, in con- law regard- when enforcement information junction with the emerged witnesses who Martin, ing parties implicated.” third trial, could after demonstrate in- Bower’s Moreover, F.3d at 457. Supreme “the during ongoing post-convic- nocence has made requests Court clear that proceedings. opinion tion The majority party third such are strongly has accepted argument Roth’s distin- disfavored.” Id. the context of an Ex- (i) guished showing interest in 7(C) emption challenge, Supreme criminal defendant’s trial innocence at Court stated that “disclosure of rec- (ii) public from the interest a showing citizens, regarding private ords identifiable criminal during defendant’s a innocence name, by is not what the framers of the post-conviction view, proceeding. my FOIA had in Reporters mind.” Commit- that distinction makes little under sense tee, 765, 489 U.S. at 109 1468. As S.Ct. 7(C) and finds no support the courts have explained, public inter- FOIA, law. the case For purposes of est ensuring people that innocent are post-conviction theory Roth’s not does dif- wrongly subjected not convicted or any meaningful way fer in Brady- from the prosecutorial or investigative misconduct is theory precedents based that our have properly ordinary vindicated crimi- consistently rejected. all, After if FOIA litigation nal civil processes—where require does not disclosure of in- private personal privacy weighty is not as a con- formation that could exonerate a man at sideration as is under FOIA. See Fed. trial, can require how of disclosure 16; Brady Maryland, 373 R. Crim.P. private information that could a exonerate 83, 86, 1194, U.S. 83 S.Ct. 10 L.Ed.2d 215 post-conviction man in a clem- habeas or (1963); 26; see also Fed.R.CivP. Bivens v. ency proceeding? opinion The majority Six Unknown Named Agents Federal of persuasively cannot question. answer that Narcotics, 388, Bureau 403 U.S. 91 of 1999, (1971); S.Ct. 29 precedents L.Ed.2d 619 The FOIA set forth a clear § juridical U.S.C. principle namely, that FOIA or- — parties of are interests third who private privacy be used to obtain dinarily cannot files re- enforcement documents are law named in law from enforcement information Indeed, prosecution. strong. majority Consis- invariably to a criminal lating statutory refers acknowledges text —which that those interests opinion with the tent reasonably be that “could “significant.” Maj. Op. to disclosures at 1174. And are an in- unwarranted expected accurately constitute public assessing interest in privacy,” U.S.C. personal of vasion liability prosecutorial or exposing criminal added) 552(b)(7)(C) Su- (emphasis § invariably is investigative —the misconduct specifically promoted has preme Court in the FOIA context the exis- lessened Exemp- rules in FOIA categorical of use litiga- of criminal and civil tence traditional 7(C) Justice v. cases. See tion public where is processes tion that interest Landano, 177, 165, 113 S.Ct. 508 U.S. Therefore, directly Re- addressed. (1993) (Reporters 2014, 124 L.Ed.2d approach is porters categorical Committee categorical ap- of a “approval Committee’s appropriate here. part phrase on the was based proach majority opinion argues The that to,’ which reasonably expected be ‘could not articulated specifically case law has in 1986 to ease Gov- Congress adopted a It is categorical principle. such true invoking Exemption 7 ernment’s burden precedents have forth expan- not set effect replace a focus reasoning rejecting arguments sive a standard of particular disclosure here, the kind advanced no doubt objective ... based on reasonableness argument ultimately because the is insuffi- test”) (internal quotation marks cita- Here, law. cient a matter of FOIA as omitted; original). The tions alteration majority charting is opinion because the “categorical deci- Court stated course, attempted I have to explain new may and individual appropriate be sions undergirds reasoning the essential disregarded a case fits circumstances when majority opin- those many decisions. charac- genus into a in which the balance ion that the FOIA Report counters teristically tips in one direction.” Committee, merely because there are 489 U.S. at 109 S.Ct. lessened ers 1468; obtaining Tire & Rubber NLRB v. Robbins other avenues cf. Co., relating to criminal from the (1978) (similarly approving L.Ed.2d 159 But what reason other than prosecution. approach under Ex categorical generic alternative forums existence those 7(A)). instances, In such “a emption dis reject- support long could our line cases justice a of holds for parity the scales ing requests private information to individual regard class of cases without in to crimi- law enforcement files related circumstances; virtues of the standard all, in prosecution? nal After considered and present, rules are thus the bright-line the criminal civil isolation from other and adjudication to attendant ad hoc difficulties ensuring in processes, public the interest Committee, Reporters may be avoided.” person wrongly is not that an innocent 780, 109 at 489 U.S. S.Ct. 1468. high, imprisoned extraordinarily yet is it is in Exemption insufficient routinely deemed Reporters words Com- To borrow the of 7(C) The reason is evident: Other mittee, cases. tips the balance characteristi- —and processes exist criminal and civil to vindi- cally will favor non-disclosure tip of —in majority The public cate that interest. informa- requester private when a seeks holdings to opinion purports accept in files parties tion about third contained like prior rejecting cases claims The our prosecution. related to a criminal 1190

Roth’s, their rejects precedential but it essential ratio- support creating a new nale and offers no other rationale to ex- penalty exception death important 7(C). those plain privacy decisions. protection Exemption Creating any exception such is a decision present key For purposes, point is properly Congress left to and the Execu- long precedent that there is a line of re- justifying tive Branch. In death its new jecting argument the kind of advanced penalty exception, the majority opinion by here Roth. Those cases have estab- volley, lobs a rhetorical saying that lished fashion a prin- common-law-like opposing position would allow govern- ciple ordinarily that FOIA does not au- deliberately ment to kill an knowingly a requester thorize- disclosure when seeks wildly innocent man. That is inaccurate. about private parties third habeas, processes traditional such as contained files related to a criminal clemency, constitutionally and the like are prosecution. Recognizing principle is designed and statutorily prevent such encouraged consistent by— with—indeed travesty justice. Supreme As the Court Reporters Committee. said, “the framers of the FOIA” did afield, Reaching farther the majority have in mind “disclosure of re- records non-7(C) opinion also cites a saying case citizens, garding private identifiable availability discovery that the does not Committee, Reporters name.” 489 U.S. defeat a FOIA exemption claim “where no Moreover, S.Ct. if federal (cit- applies.” Maj. Op. otherwise at 1183 are violating officials their le- Justice, ing Morgan Dep’t gal and ethical disclosure responsibilities (D.C.Cir.1991)). Of course that’s justice clemency the criminal fo- true. But that’s not the issue here. The rums, why opin- is unclear the majority question here how weigh pub- concerns ion thinks same those officials would sud- 7(C) privacy lic and interests cases. In denly comply with FOIA orders. 7(C) context, Exemption the cases es- tablish that the asserted interest in elsewhere, general Here as categori- determining guilt a defendant’s is lessened cal principles can be overcome extraor- because vindicated Collins, dinary cases. Herrera v. Cf. ordinary civil processes. criminal and 425-26, S.Ct. end, majority (1993) opinion (O’Connor, J., distin- L.Ed.2d 203 concur- guishes away applicable case, prece- ring). however, slew In this Roth seeks by decreeing dents a new penalty death to undermine Bower’s conviction and show 7(C)’s exception alleged prosecutorial overrides misconduct—inter- protection personal privacy. The result ests that routinely have been asserted case, in this FOIA majority rejected opin- in FOIA cases as insufficient to admission, 7(C)’s ion’s own would be different if override Exemption protection for Bower serving See, were personal Martin, a sentence of life im- privacy. e.g., course, prisonment. Of 457; 387-88; Boyd, information F.3d 475 F.3d at sought goes guilt, here to Bower’s Oguaju, 1116-17; not to Spirko, his majority opinion’s sentence. The 998-99; rea- F.3d at Computer Professionals soning, which rests on Bower’s death sen- Responsibility, Social 72 F.3d at 903- for tence, is thus odd fit with the nature of 05. prosecutorial Claims of innocence and that, sought. Beyond information investigative or misconduct of form or one major problem majority with the opinion’s failing disclose relevant evi- another — approach dence, is that is no statutory witnesses, there pressuring encouraging or majority dissent from the respectfully I example— for testimony, allowing false or regarding Exemption decision opinion’s defense in by the arguments are standard 7(C). The crimi- prosecutions. criminal federal expose and re- designed to

nal process counter-charges. charges

solve such jBivens are § 1983 actions

And civil re- citizens to seek as well for

available investigative prosecutorial for

dress contrast, FOIA, was

misconduct. public disclosure require

designed to serve those order private COLUMBIA, Appellee OF DISTRICT purposes. ment and able to system In other obtain accommodates forums, challenge ^[*] discovery from the Govern- Bower has ^[*] his guilt. ^[*] pre-conviction rightly Our been legal Chike Offices A. IJEABUONWU LLC, Appellants. of Chike A. No. 09-7092. Ijeabuonwu, and Law the criminal through innocence claims of Appeals, United States Court legal system accom- And our trial itself. of Columbia Circuit. District claims of inno- post-conviction modates 18, 2011. Argued Jan. newly those based on including cence— through new trial discovered evidence— June 2011. Decided motions, appeals, proceedings, habeas clemency process, and recent executive pro- such as the procedures DNA

times in Bower’s employed that Texas has

cess Herrera, 506 generally

case. See

411-16, ques- If are there guilt, those are Bower’s

tions about ques- resolving those

proper forums for judicial I believe it essential

tions. particu- officials to

and executive ensure — cases—that claims

larly penalty death newly discovered innocence based on giv- But properly explored. are

evidence protection personal critical

en FOIA’s many processes other

privacy and the in- vindicating a defendant’s

available for claim, Supreme Court

nocence ordinarily have held

this Court infor- tool to obtain appropriate

is not an relating files from law enforcement

mation when disclosure prosecution a criminal privacy interests infringe

would principle con- parties. That settled

third this case.

trols

Case Details

Case Name: Roth Ex Rel. Bower v. United States Department of Justice

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

Date Published: Jun 28, 2011

Citation: 642 F.3d 1161

Docket Number: 09-5428

Court Abbreviation: D.C. Cir.