Senate of the Commonwealth of Puerto Rico on Behalf of Judiciary Committee, Appellant V. United States Department of Justice, et al. No. 86-5257 united states court of appeals for the district of columbia circuit




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Senate of the Commonwealth of Puerto Rico on Behalf of Judiciary Committee, Appellant v. United States Department of Justice, et al.
No. 86-5257
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
262 U.S. App. D.C. 166; 823 F.2d 574; 1987 U.S. App. LEXIS 7955
February 3, 1987, Argued
June 23, 1987, Decided
PRIOR HISTORY:

[**1] Appeal from the United States District Court for the District of Columbia, Civil Action No. 84-01829.


COUNSEL:

Stephen L. Braga, with whom Herbert J. Miller, Jr. and Raymond J. Larroca were on the brief, for Appellant.

Robert E.L. Eaton, Jr., Assistant United States Attorney, with whom Joseph E. diGenova, United States Attorney, Royce C. Lamberth and R. Craig Lawrence, Assistant United States Attorneys were on the brief, for Appellees.
JUDGES:

Ruth B. Ginsburg, Buckley and D. H. Ginsburg, Circuit Judges. Opinion for the Court filed by Circuit Judge Ruth B. Ginsburg.


OPINIONBY:

GINSBURG


OPINION:
[*577] GINSBURG, RUTH B., Circuit Judge:

This appeal challenges several rulings made by the district court in a Freedom of Information Act (FOIA) case. The requesting party is the Senate of the Commonwealth of Puerto Rico; the agency addressed is the Department of Justice (DOJ). Several years ago, the Senate of Puerto Rico launched an investigation into possible official complicity in a 1978 politically-inspired homicide; as part of that endeavor, the Senate submitted a FOIA request to the DOJ seeking information relating to the homicide. The DOJ released some of the material sought in the request, but claimed various [**2] FOIA exemptions for several withheld documents. In a series of rulings, the district court upheld all of the DOJ's exemption claims.

We conclude that the district court ruled correctly regarding the DOJ's claim that production of certain law enforcement records "would . . . constitute an unwarranted invasion of personal privacy." 5 U.S.C. § 552 (b) (7) (C). We vacate the orther contested rulings, however, because the record does not bear out the DOJ's exemption claims. We remand those portions of the case so that the DOJ will be afforded an opportunity to sustain its claims. If, on remand, the DOJ does not provide adequate support for the asserted exemptions, it will be obliged to release the material still sought by the Senate of Puerto Rico.

I.


On July 25, 1978, two Puerto Rican political activists, Arnaldo Rosado and Carlos Soto, were killed by Puerto Rican police officers at Cerro Maravilla, a remote mountain location some distance from San Juan. The incident soon generated fierce controversy as conflicting accounts of the day's events emerged. The official explanation [*578] -- that Rosado and Soto had arrived at Cerro Maravilla intending to blow up a nearby television transmission [**3] tower and had fired on the officers, who retaliated in self-defense -- was contradicted by several eyewitnesses to the shooting; both the taxi driver, who had transported Rosado, Soto, and a third individual (later identified as a government undercover agent) to the scene, and a technician working at the transmission station, claimed that Rosado and Soto surrendered without a struggle and had been taken, unharmed, into custody before the fatal shots were fired.

The Special Investigations Division of the Puerto Rico Department of Justice issued a report on this affair in August 1978, absolving the police of culpability in the two deaths. Further investigations (in 1978 and 1980) were undertaken by the Civil Rights Division of the DOJ and other federal law enforcement authorities, including the Federal Bureau of Investigation (FBI), to determine whether the police officers had violated the victims' civil rights. No criminal charges were brought as a result of these inquiries, and the DOJ's investigations were formally closed on April 16, 1980. n1


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n1 Declaration of Deputy Assistant Attorney General James P. Turner para. 8 (Aug. 18, 1984), Joint Appendix (J.A.) at 31.


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In early 1981, [**4] the Judiciary Committee of the Senate of Puerto Rico began yet another investigation into the Cerro Maravilla incident. As part of that probe, the Senate submitted to the DOJ, pursuant to FOIA, 5 U.S.C. § 552 (1982), a request for "all evidence" collected by the DOJ during its earlier investigations. n2


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n2 Letter from Counsel to the Judiciary Committee of the Senate of Puerto Rico to the Deputy Attorney General (May 26, 1981), J.A. at 5-6.


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The DOJ, citing a backlog of FOIA requests, n3 placed response to the Senate's request on a waiting list on which the matter remained for more than two years, a delay which was to have important repercussions for this case. Despite the unavailability of the federal records, the Senate of Puerto Rico's investigation continued, culminating in highly-publicized televised hearings in the fall of 1983. The DOJ also returned to the fray; in August 1983, it reopened its investigation on the basis of new evidence indicating that several witnesses in its original investigations had perjured themselves. Amid this mounting activity, in December 1983, the DOJ responded to the Senate of Puerto Rico's FOIA request. Referring to the reopened investigation, the [**5] DOJ asserted that most of the requested material was covered by section (b) (7) (A) of FOIA, n4 which exempts from disclosure "investigatory records compiled for law enforcement purposes . . . to the extent that the production of such records would interfere with enforcement proceedings." 5 U.S.C. § 552 (b) (7) (A). Certain documents -- records of proceedings before a grand jury and intra-agency memoranda -- were withheld on the basis of FOIA exemptions (b) (3) and (b) (5), and fifty-five items were released to the Senate. n5 The Senate of Puerto Rico pursued an administrative appeal from the decision to withhold the bulk of the requested material.


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n3 Letter from Assistant Attorney General William B. Reynolds to the Judiciary Committee of the Senate of Puerto Rico (Aug. 6, 1981), J.A. at 7.

n4 Letter from Deputy Assistant James P. Turner to the Judiciary Committee (Dec. 5, 1983), J.A. at 10-12.

n5 Id.


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In the interim, on February 6, 1984, a federal grand jury in Puerto Rico returned a forty-four count indictment against ten police officers involved in the Cerro Maravilla incident, and a criminal trial commenced shortly thereafter. In mid-April, the DOJ's Office of Legal Policy [**6] affirmed the initial DOJ action on the Senate's FOIA request, n6 and on June 15, 1984, the Senate filed suit seeking release of the withheld items, see 5 U.S.C. § 552(a) (4) (B), along with costs and attorney fees. See id. § 552 (a) (4) (E). The defendants promptly [*579] moved for summary judgment solely on the basis of exemption (7) (A), n7 there being, in their words, "no question that the records at issue . . . are investigatory and were compiled for a law enforcement purpose"; release of the records, defendants stated, would "obvious[ly]" interfere with the ongoing enforcement proceedings. n8 The Senate of Puerto Rico filed a cross-motion for summary judgment, arguing that the defendants had not carried their burden n9 of establishing affirmatively that release of the requested documents would indeed interfere with the federal prosecution then underway.


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n6 Letter from Acting Assistant Attorney General Roger Clegg to Counsel for the Judiciary Committee (Apr. 12, 1984), J.A. at 24-25.

n7 The defendants noted that "although other FOIA exemptions are mentioned in the [accompanying] declarations, they are not relied upon at this time." Memorandum of Points and Authorities in Support of Defendants' Motion for Summary Judgment at 3 n.1.

n8 Id. at 4.

n9 The "burden is on the agency to sustain" its decision to withhold information. 5 U.S.C. § 552 (a) (4) (B); see EPA v. Mink, 410 U.S. 73, 79, 35 L. Ed. 2d 119, 93 S. Ct. 827 (1973).
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While these motions were pending before the district judge, in late March 1985, the criminal trial in the federal district court in Puerto Rico came to an end, with guilty verdicts returned against the principal defendants. The district judge then ordered the parties to "apprise the Court of their respective positions in light of this development," n10 and specifically directed them to address the question "whether the defendants' (7) (A) [claim] is now moot." n11 The defendants, by affidavit, acknowledged that exemption (7) (A), on the basis originally claimed, "no longer applies to the records pertaining to the events at Cerro Maravilla." n12 The district judge thereupon held that the previously-filed motions for summary judgment were moot; rejecting the Senate of Puerto Rico's request for immediate entry of judgment in its favor, the judge ordered the defendants to "reevaluate" plaintiff's request "and to disclose to plaintiffs all documents [**8] not falling under a legitimate exemption." n13


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n10 Order, C.A. No. 84-1829 (D.D.C. Apr. 11, 1985), J.A. at 51.

n11 Id.

n12 Declaration of FOIA officer Janet L. Blizard (Apr. 20, 1985), J.A. at 52-53.

n13 Order, C.A. No. 84-1829 (D.D.C. May 10, 1985), J.A. at 56-59.
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As a result of that reevaluation, approximately 900 additional pages were released to the Senate, but the DOJ continued to resist disclosure of other material in its possession. On October 5, 1985, the DOJ renewed its motion for summary judgment, supported by two declarations asserting FOIA exemptions (b)(2), (3), (5), (7)(A), (7)(C) and (7)(D) to justify the continued withholding of documents in whole or in part. Following the submission of an opposition to this motion, and the Senate's own cross-motion for summary judgment, the district court granted the defendants' motion in every particular save one; the exception related to the DOJ's claim that disclosure of nineteen pages would interfere with a separate investigation then in progress in Puerto Rico, and thus fell within exemption (7)(A). n14


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n14 Memorandum Opinion, C.A. No. 84-1829 (D.D.C. Feb. 7, 1986), J.A. at 109-20.


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The court directed the defendants to "submit more particular facts" n15 about this separate, ongoing investigation. The defendants responded that "release of any further details . . . would seriously impair those enforcement proceedings by disclosing the evidence which has been developed, the evidence which the Government is still developing, and the precise direction and scope of the proceedings." n16 The district judge then ordered production of the nineteen pages for in camera inspection. n17 At the conclusion of that inspection, the judge upheld the (7) (A) exemption, noting that, in view of the nature of that exemption, he could not "further describe [his] reasons" [*580] for so ruling. n18 The Senate of Puerto Rico appeals from the district court's final dispositions.


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n15 Id. at 12, J.A. at 120.

n16 Declaration of Special Agent Robert J. Chester at 2-3 (Feb. 20, 1986), J.A. at 124-25. [**9]

n17 Order, C.A. No. 84-1829 (D.D.C. Mar. 14, 1986), J.A. at 128-30.

n18 Order, C.A. No. 84-1829 (D.D.C. Mar. 26, 1986), J.A. at 131-32.
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II.


The Senate's first argument on appeal relates to the district court's May 10, 1985 order holding the defendants' original (7) (A) claim moot and ordering a reevaluation of all withheld material. In the Senate's view, the court should have granted the Senate's pending summary judgment motion immediately, thereby ordering production of all requested material, once the sole justification defendants had originally pressed for withholding that material no longer applied. Given the special circumstances of this case, we hold that the district judge properly rejected the Senate's plea.

In Holy Spirit Association v. CIA, 205 U.S. App. D.C. 91, 636 F.2d 838, 846 (D.C. Cir. 1980), vacated in part as moot, 455 U.S. 997, 71 L. Ed. 2d 858, 102 S. Ct. 1626 (1982), we emphasized that "agencies [may] not make new exemption claims to a district court after the judge has ruled in the other party's favor," nor may they "wait until appeal to raise additional claims of exemption or additional [**10] rationales for the same claim." See also Ryan v. Department of Justice, 199 U.S. App. D.C. 199, 617 F.2d 781, 792 (D.C. Cir. 1980) (warning of the "danger of permitting the Government to raise its FOIA exemption claims one at a time, at different stages of a district court proceeding"); Grumman Aircraft Engineering Corp. v. Renegotiation Board, 157 U.S. App. D.C. 121, 482 F.2d 710, 721-22 (D.C. Cir. 1973) (upholding denial of agency's motion for rehearing in which it raised, for the first time, claim of executive privilege), rev'd on other grounds, 421 U.S. 168, 95 S. Ct. 1491, 44 L. Ed. 2d 57 (1975); cf. Vaughn v. Rosen, 173 U.S. App. D.C. 187, 523 F.2d 1136, 1143 (D.C. Cir. 1975) (appeals court would not consider rationale for applying exemption not raised in district court).

The Senate of Puerto Rico invokes the Holy Spirit rule here, despite the absence of a formal district court "rul[ing] in the [Senate's] favor"; n19 when the original (7) (A) exemption claims became moot, the Senate argues, the situation became functionally indistinguishable from one in which a district [**11] court had already ruled against the agency. Although we recognize that the absence of a "ruling" so denominated by the district court is not a dispositive factor, and that there may be circumstances in which withdrawal of an agency's prime exemption claim should preclude the agency's fresh assertion of additional exemptions, we are persuaded that such preclusion is not warranted in this case.
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n19 As noted earlier, see supra p. 6, the cross-motions for summary judgment were still pending when the district court issued its May 10 order.


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Our decisions in this area reflect interrelated concerns. First, the "interests of judicial finality and economy," Holy Spirit, 636 F.2d at 846, have special force in the FOIA context, because the statutory goals -- "efficient, prompt, and full disclosure of information," Jordan v. Department of Justice, 591 F.2d 753, 755, 192 U.S. App. D.C. 144 (1978) (en banc) (emphasis added) -- can be frustrated by agency actions that operate to delay the ultimate resolution of the disclosure request. See Ryan, 617 F.2d at 792 (delay accompanying agency's assertion of exemptions seriatim "could easily render the appellants' claim futile"). Furthermore, fairness to parties seeking disclosure [**12] ordinarily requires that they be accorded a full and concentrated opportunity to challenge and test comprehensively the agency's evidence regarding all claimed exemptions. See Jordan 591 F.2d at 779-80. We will not allow an agency "to play cat and mouse by withholding its most powerful cannon until after the District Court has decided the case and then springing it on surprised opponents and the judge." Grumman Aircraft, 482 F.2d at 722.

The district judge signaled no failure to appreciate and grapple with these considerations when he allowed the DOJ to reevaluate [*581] its exemption claims in light of the intervention of events that rendered its prime claim moot. The record does not suggest anything less than a good faith belief on the DOJ's part that it was fully justified in withholding the documents in question for the reason claimed. Nor does the Senate contend that the DOJ acted irresponsibly, with a purpose to delay, in failing to anticipate the swift course of the federal prosecution in Puerto Rico. In short, the DOJ cannot fairly be charged [**13] with playing cat to the Senate of Puerto Rico's mouse, nor can the Senate fairly claim to have been taken completely by surprise by the additional exemption claims. n20
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n20 See supra p. 5 and note 7.


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We thus reject the Senate's contention that the termination of the trial in Puerto Rico, and the attendant collapse of defendants' original (7) (A) claim, are "functional[ly] equivalent" to an adverse ruling by the district court. We note, moreover, that even if the district court had "ruled in the Senate's favor" by granting its motion for summary judgment, this case might have been the exceptional one in which the DOJ would have been granted permission to raise additional exemption claims on appeal. As this court has observed:

From a practical standpoint, . . . an agency might be led to invoke an exemption on appeal for the first time . . . in order to gain a tactical advantage over the requestor. Clearly, it is not consistent with the broad remedial purpose of the FOIA to permit such agency maneuvering. Second, an agency might be forced to invoke an exemption for the first time on appeal because of a substantial change in the factual context of the case or because of an interim [**14] development in applicable legal doctrine . . . . [The agency] should be able to cite all possibly relevant exemptions well before the appellate stage . . . . [However, if] the value of the material which otherwise would be subject to disclosure were obviously high . . ., and it appeared highly likely was intended to be protected by one of the nine enumerated exemptions, then under 28 U.S.C. § 2106, the appellate court would have discretion to "remand the cause and . . . require such further proceedings to be had as may be just under the circumstances." Such discretion might likewise be exercised in the second example above-cited.


Jordan, 591 F.2d at 780 (emphasis added); see also Washington Post Co. v. Department of Health and Human Services, 254 U.S. App. D.C. 160, 795 F.2d 205, 208-09 (D.C. Cir. 1986) (government cannot raise new element of a numbered exemption after remand absent "'extraordinary circumstance[s]' justifying an exception to the rule that the government must assert all of its exemptions in the original proceedings before the district court"). We make no broad pronouncement here on whether or when conclusion of the law enforcement proceedings with reference to which a (7) (A) claim is advanced constitutes a "substantial [**15] change in the factual context of the case" sufficient to invoke an appellate court's discretion under 28 U.S.C. § 2106 to require "further proceedings . . . just under the circumstances." It suffices to hold that the district judge did not abuse his discretion when he evaluated the situation at hand as one inappropriate for application of a rigid "press it at the threshold, or lose it for all times" approach to the agency's FOIA exemption claims.

III.


We turn next to the Senate's challenges to the district court's rulings upholding the DOJ's invocation of exemptions (b) (3), (b(5), and (b) (7) (C) to justify the continued withholding of specified material.

A. Exemption (b) (3): Grand Jury Exhibits

In its May 1981 request, the Senate asked for "all evidence collected by the U.S. Department of Justice and any of its sub-divisions" regarding the Cerro Maravilla events, n21 and added the following explanatory paragraph:

[*582] [This] request should be understood as to include all evidence, including sworn statements, photographs, police reports, pathological studies, ballistic and other forensic tests, etc., collected by the Department directly or received by the Department from [**16] local agencies or any other party interested in the matter, including, but not limited to, evidence submitted for the consideration of any Grand Jury or magistrate(s). n22

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n21 Letter, supra note 2.

n22 Id. (emphasis added).
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Exemption (b) (3) of FOIA permits an agency to withhold material "specifically exempted from disclosure by statute . . . provided that such statute [requires withholding] in such a manner as to leave no discretion on the issue." 5 U.S.C. § 552 (b) (3). The Federal Rules of Criminal Procedure, in turn, prohibit, with exceptions not relevant here, disclosure of "matters occurring before [a] grand jury." FED. R. CRIM. P. 6(e) (2). Relying on the incorporation of Rule 6(e) within exemption (b) (3), n23 the DOJ contended that "all grand jury transcripts and exhibits are exempt from mandatory disclosure," n24 thus "there can be no question that the exhibits considered by the grand jury investigating the Cerro Maravilla incident are entitled to protection pursuant to this exemption." n25


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n23 Although rules of procedure promulgated by the Supreme Court generally do not qualify as "statutes" for exemption (b) (3) purposes, see Founding Church of Scientology v. Bell, 195 U.S. App. D.C. 363, 603 F.2d 945, 952 (D.C. Cir. 1979), Rule 6(e) does so qualify because it was specifically adopted by an Act of Congress. Fund for Constitutional Government v. National Archives and Records Service, 211 U.S. App. D.C. 267, 656 F.2d 856, 867 (D.C. Cir. 1981). [**17]

n24 Turner Declaration, supra note 1, para. 18, J.A. at 37.

n25 Memorandum of Points and Authorities in Support of Defendants' Renewed Motion for Summary Judgment at 6.


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We have never embraced a reading of Rule 6(e) so literal as to draw "a veil of secrecy . . . over all matters occurring in the world that happen to be investigated by a grand jury." SEC v. Dresser Industries, Inc., 202 U.S. App. D.C. 345, 628 F.2d 1368, 1382 (D.C. Cir.) (en banc), cert. denied, 449 U.S. 993, 101 S. Ct. 529, 66 L. Ed. 2d 289 (1980). There is no per se rule against disclosure of any and all information which has reached the grand jury chambers; as the district court correctly observed, the touchstone is whether disclosure would "tend to reveal some secret aspect of the grand jury's investigation" such matters as "'the identities of witnesses or jurors, the substance of testimony, the strategy or direction of the investigation, the deliberations or questions of jurors, and the like.'" n26 The disclosure of information "coincidentally before the grand jury [which can] be revealed in such a manner that its revelation would not elucidate [**18] the inner workings of the grand jury" is not prohibited. Fund for Constitutional Government v. National Archives and Records Service, 211 U.S. App. D.C. 267, 656 F.2d 856, 870 (D.C. Cir. 1981); see also Dresser, 628 F.2d at 1383 ("The fact that a grand jury has subpoenaed documents concerning a particular matter does not insulate that matter from investigation in another forum."); United States v. Interstate Dress Carriers, Inc., 280 F.2d 52, 54 (2d Cir. 1960) (Rule 6(e)'s purpose is not "to foreclose from all future revelation to proper authorities the same information or documents which were presented to the grand jury"). Automatically sealing all that a grand jury sees or hears would enable the government to shield any information from public view indefinitely by the simple expedient of presenting it to the grand jury.

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