KRUPANSKY, Circuit Judge.
The present action involves cross-appeals by the plaintiff Joseph B. Ingle (Ingle) and the defendant Department of Justice (Justice) from an order of the United States District Court for the Middle District of Tennessee which held, following an in camera inspection, that various specific statutory exemptions asserted by Justice to the disclosure of portions of 26 pages of documents to Ingle pursuant to a Freedom of Information Act (FOIA), 5 U.S.C. § 552, request were properly invoked, but that Justice's characterization of two additional documents incorporating 28 pages as beyond the scope of Ingle's request was improper. Ingle appeals from that portion of the order upholding the statutory exemptions. Justice however does not directly contend that the district judge erred in reclassifying the two documents as being within the scope of the request; rather, the government seeks a remand to permit it to delete those portions of the two additional documents which it contends are exempt. Ingle, moreover, seeks attorney fees as a prevailing party.
The salient facts of this action are straight-forward. Ingle is the director of the Southern Coalition on Jails and Prisons, Inc. (SCJP), an organization that describes itself as "a group of ministers and lay people carrying on a ministry to visit prisoners and proclaim liberty to captives." On November 1, 1978, Ingle made a FOIA demand upon Justice for "any and all reports on myself and any organization I am a member of (the Committee of Southern Churchmen, Southern Prison Ministry, The Southern Coalition on Jails and Prisons)."
Justice responded by stating that 366 pages of documents were located, of which number 325 pages were withheld in their entirety, with the remaining 41 pages supplied with deletions made pursuant to various exemptions. Ingle perfected an administrative appeal which was denied.
Ingle thereupon filed an action in district court seeking, inter alia, an order to produce all of the documents in their entirety, an expedited hearing and an award of attorney fees. Justice filed with the Court three affidavits of FBI Special Agents who had reviewed the documents and a motion for summary judgment asserting that the affidavits sufficiently demonstrated compliance, as a matter of fact, with exemptions (b)(1), (b)(7)(C) and (b)(7)(D) of the FOIA, 5 U.S.C. § 552.
On January 16, 1981, the district judge ruled that the statute required in camera inspection of all documents to determine if the exemptions were proper. The district court further stated that because the affidavits were "conclusory," the agency's judgment was not entitled to substantial weight and held that "the documents must be submitted to this Court in their entirety for in camera inspection." It must be noted that neither party has appealed from the decision of the district court to conduct an in camera inspection.
On March 9, 1981, the district judge issued the following Memorandum and Order, here set forth in its entirety:
In sum, of the 59 pages submitted for inspection, 5 pages, denominated as Documents 1, 2, 3, 7 and 9, which were merely cover letters transmitting copies of the magazine and which were not asserted to be exempt at the time of review, were ordered released and are not now at issue. Documents 10 and 11, totalling 28 of the remaining 54 pages, were ordered released in full and the final 26 pages were released with deletions.
As noted hereinabove, the decision of the trial judge to conduct an in camera review has not been directly challenged by either instant party. However, the examination by the trial court of the 59 pages of documents is a threshold consideration to this Court's application of the "clearly erroneous" test to the conclusions of the district judge. Simply stated, where the trial court relies solely upon a personal in camera inspection of documents as the basis for its decision evaluating FOIA exemptions, an appellate court may review such conclusion only by conducting a similar in camera review of the same documents. As stated by the D.C. Circuit in the polestar FOIA opinion of Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir.1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974):
Id. at 824-825 (emphasis added).
It is for this reason that the D.C. Circuit, which is the forum most frequently confronting FOIA issues, developed a procedure characterized as the Vaughn Index whereby the government satisfies its burden of proof supporting claimed exemptions to disclosure with a detailed index of each paragraph or sentence sought to be withheld, cross-referenced to the government's statutory basis for the exemption. Id. at 826-828. Such detailed summaries permit the party seeking disclosure to knowingly argue for the release of the disputed information, and permit effective appellate review;
Subsequent to Vaughn I, Congress in 1974 amended the FOIA investing the district court with discretion to conduct in camera inspections without the necessity of relying upon agency affidavits. However, the legislative intent, as expressed in the conference report, clearly reflected the sense of Vaughn I that in camera reviews were to be a secondary tool of FOIA enforcement:
Precedent which followed Vaughn I and the 1974 FOIA amendments has evolved two major principles concerning in camera reviews: 1) such reviews are not generally favored for the reasons articulated in Vaughn I; and 2) full in camera reviews are appropriate in cases involving a very limited number of relatively brief documents.
The disabilities inherent in in camera review, first articulated in Vaughn I, have been restated by the D.C. Circuit in Weissman v. CIA, 565 F.2d 692, at 697 (1977) ("In camera inspections are burdensome and are conducted without the benefit of an adversary proceeding."); Mead Data Central, Inc. v. U.S. Department of Air Force, 566 F.2d 242, at 250, n. 10 (1977) ("In camera inspection of disputed documents places a very burdensome demand on federal trial courts * * * [and] also creates problems for appellate review."); Ray v. Turner, 587 F.2d 1187, at 1195 (1978) ("In camera inspection requires effort and resources and therefore a court should not resort to it routinely on the theory that `it can't hurt.'"): But see Allen v. CIA, 636 F.2d 1287 (D.C.Cir.1980).
Other circuits addressing the role of in camera review in FOIA cases have tended to emphasize the need for restraint which is at the core of Vaughn I. The Fifth Circuit in Stein v. FBI, 662 F.2d 1245, 1254 (5th Cir.1981) explicitly endorsed the initial use of a Vaughn Index, which should be the sole basis of decision where the descriptions contained therein are "reasonably specific"; such information as is described "falls logically within the claimed exemption"; and there is no contrary evidence or "evidence of agency bad faith." The court limited in camera review to instances where the public record is insufficient and public disclosure of a Vaughn Index would "compromise legitimate security interests." Id. at 1254.
The Second Circuit, in Brown v. FBI, 658 F.2d 71, 74 (2nd Cir.1981) restated its position on in camera review first articulated by that court in Lead Industries Ass'n v. OSHA, 610 F.2d 70 (2nd Cir.1979):
The Third Circuit, likewise, has recently reaffirmed its support of the Vaughn Index as the initial FOIA enforcement tool. Lame v. U.S. Dept. of Justice, 654 F.2d 917, 921 (3rd Cir.1981) citing Ferri v. Bell, 645 F.2d 1213, 1222 (3rd Cir.1981), reh. on other grnds., 671 F.2d 769 (1982); Coastal States Gas Corp. v. Dept. of Energy, 644 F.2d 969 (3rd Cir.1981).
The Eighth Circuit is perhaps the most clearly committed to the restrained use of in camera review in FOIA cases. In Barney
The Ninth Circuit, in Church of Scientology, etc. v. U.S. Dept. of Army, 611 F.2d 738, 743 (9th Cir.1979) alludes to, but does not fully specify, the problems of in camera inspection:
In addition to these circuit opinions, there is persuasive dicta in the Supreme Court's decision in NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 224, 98 S.Ct. 2311, 2318, 57 L.Ed.2d 159 (1978) which states:
A fair reading of existing case authority compels the conclusion that while in camera review is available, it is not the procedure primarily contemplated by the statute and, because of the attendant burdens on judicial economy, should be availed of with some restraint and in appropriate instances. Indeed, as noted by the Fifth Circuit during its discussion of discretionary in camera review in Stein, supra, 662 F.2d at 1252, it is "somewhat ironic that legislation intended to open up the workings of executive agencies incorporates a scheme of judicial review designed to be closed in large part not only to the public but to adverse parties."
It is important, therefore, to note that the trial court in the case at bar misconstrued the scope of in camera review, relying not upon the substantial, and growing body of precedent, cited hereinbefore, but specifically upon the concurring opinion in Ray v. Turner, supra. The trial court stated:
Although the district court in the instant case misapprehended the function of in camera review, this Court is persuaded that the decision to conduct an in camera inspection was not an abuse of discretion when considered in light of the following criteria by which a court properly exercises its discretion to examine FOIA materials in camera.
The primary factor substantiating discretionary review is the failure of a Vaughn Index to resolve the dispute. This seemingly self-obvious point bears emphasis in light of the lower court's belief that in camera inspection is the rule not the exception. The statute's legislative history and the Supreme Court's language in Robbins Tire & Rubber, supra, emphasize that no court should consider in camera review if a Vaughn Index can adequately resolve the issue.
It must be emphasized that the failure of a traditional Vaughn Index is not dispositive of the need for full in camera review; it is merely the trigger for further analysis. Stephenson v. IRS, 629 F.2d 1140 (5th Cir. 1980); Church of Scientology, etc., supra, 611 F.2d at 743 ("We stress again * * * that in camera inspection is a procedure which the trial court need invoke only where it finds inspection appropriate, in its discretion.") In such cases where an index and reasonably detailed descriptions cannot resolve the issue, courts have employed modified versions of total review in camera so as to ameliorate the limitations of a complete inspection. See Ash Grove Cement Co. v. FTC, 511 F.2d 815 (D.C.Cir. 1975) (random sample inspections); Hayden v. National Security Agency/Central Security Service, 608 F.2d 1381 (D.C.Cir.1979), cert. denied, 446 U.S. 937, 100 S.Ct. 2156, 64 L.Ed.2d 790 (1980) (in camera review of affidavits where public affidavits would compromise national security); Stephenson v. IRS, supra, 629 F.2d at 1145-46 (trial courts should consider "sanitized indexing, random or representative sampling in camera with the record sealed for review, oral testimony or combinations thereof").
In the instant case, the trial judge made a specific finding that the Vaughn Indices submitted by the government were insufficient. That finding is not contested on appeal and accordingly will not be disturbed. Although the district court did not specifically consider the sufficiency of the Vaughn material within the context of the foregoing analysis, this Court cannot conclude
Having determined that the affidavits and index are insufficient, the decision to exercise a court's discretion to review material in camera ultimately involves consideration of the following factors: 1) judicial economy — every court on record has expressed significant concern about imposing a line by line review upon trial and appellate courts in resolving FOIA requests involving hundreds or thousands of documents; 2) actual agency bad faith — where it becomes apparent that the subject matter of a request involves activities which, if disclosed, would publicly embarrass the agency or that a so-called "cover up" is presented, government affidavits lose credibility; 3) strong public interest — where the effect of disclosure or exemption clearly extends to the public at large, such as a request which may surface evidence of corruption in an important government function, there may be a reason to give lesser weight to factors like judicial economy; 4) the parties request in camera review — obviously the court cannot be required to conduct a review upon demand, but a request would ameliorate concern that in camera inspection was precluding vigorous adversary proceedings or that a court was stepping into an area, as national security, which is the province of the Executive. See, e.g., Allen, supra.
In sum, a trial court should exercise its discretion to require in camera inspection only after attempting to adequately resolve the matter by a Vaughn Index and only after considering whether some other available procedure short of full in camera examination could resolve the identified difficulty with the original agency submission. Moreover, because of the serious implications of in camera proceedings, this Court endorses the Second Circuit's reasoning in Lead Industries Ass'n v. OSHA, supra, wherein it was adjudged to have been error for the trial court to order in camera inspection of some 540 pages "without hearing argument specifically addressed to that issue." 610 F.2d 70, at 87. Obviously oral hearing would not be required in every case, but permitting the parties to argue the very factors delineated here would aid in the exercise of discretion, as would an opinion by the trial court wherein his reasoning was set forth. Further, the procedure outlined herein would permit effective review by this Court.
In applying the foregoing criteria to the case at bar, this Court observes that there are a relatively modest number of documents actually involved (54), although it must also be noted that the district court initially ordered in camera inspection under the belief that it would involve 366 pages of documents. Further, although no hearing was conducted, no party here seeks to assign error to the in camera inspection. Wherefore, this Court will, in this case, conclude that the trial court did not abuse its discretion in its conduct of an in camera review and will, accordingly, proceed to the merits of the instant case.
In reviewing determinations made under the FOIA an appellate court is confronted with two responsibilities. Initially, the reviewing court must establish that the district court had an adequate factual basis for its decision. Secondly, the court on appeal must ascertain upon the factual foundation developed below if the conclusion of the trial court is clearly erroneous. Stephenson v. IRS, supra, at 1144; Church of Scientology, etc. v. Dept. of Army, supra, at 742.
On appeal, Ingle charged that the affidavits submitted by the government were ambiguous and insufficient in fact to provide an adequate basis for the trial judge to evaluate the claimed exemptions. Whatever the merits of appellant's assessment of the affidavits, once the trial court commenced a first-hand review of the documents themselves "[s]uch an inspection would determine whether the failure of the affidavit stemmed from mere inadvertence or from a truly overbroad reading of the exemption by the agency." Irons v. Bell, 596 F.2d 468, 471, n. 6 (1st Cir.1979). Accordingly, as noted by the Ninth Circuit in Church of Scientology, etc. v. Dept. of
Upon this Court's inspection of the same documents, it is apparent that the district court was not clearly erroneous in upholding the claimed exemptions to Documents 4, 5 and 6. These documents were redacted to excise classified information related to national security, 5 U.S.C. § 552(b)(1),
Initially, this Court observes with respect to the national security exemption claimed pursuant to § 522(b)(1), that courts have long been required to accord substantial weight to an agency's affidavit concurring national security matters. Taylor v. Dept. of Army, 684 F.2d 99, 106-07 (D.C.Cir.1982). The agency's burden is to show that it followed proper classification procedures and that the document, by description, falls logically within the claimed exemption. Hayden v. National Security Agency, 608 F.2d 1381 (D.C.Cir.1979), cert. denied, 446 U.S. 937, 100 S.Ct. 2156, 64 L.Ed.2d 790 (1980). Moreover, courts must be aware "that the Executive departments responsible for national defense and foreign policy matters have unique insights into what adverse affects [sic] might occur as a result of public disclosures." Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C.Cir.1981) quoting S.Rep. No. 93-1200, 93d Cong., 2d Sess. 12 (1974), reprinted in  U.S.Code Cong. & Admin.News 6267, 6290. Pertinent here is the observation made in Halperin v. Central Intelligence Agency, 629 F.2d 144, 150 (D.C.Cir.1980):
In the instant case, the government affidavits confirmed that the material was duly classified as "Confidential" by the proper Justice Department authority and that the information was, by generic description, logically encompassed by the classification criteria of Executive Order 12065. 3 C.F.R. 190 (1980). Moreover, the trial court examined the material and found the (b)(1) exemption properly claimed. Ingle's assertion that it was erroneous to sustain this exemption without proving that disclosure of the specific material here involved would damage national security both misapprehends the government's burden as developed in the authorities and is contrary to the recognized deference due the Executive branch
Similarly, this Court upholds the decision to delete, pursuant to exemptions (b)(7)(C) and (D), the names of FBI agents and persons interviewed by the FBI during law enforcement investigations. Ingle essentially contends that the exemptions must fail because the government did not prove it extended confidentiality to the interviewees as a condition of the interview and that no prosecution was apparently ever initiated against the appellant as a result of the investigation.
The Seventh Circuit in Miller v. Bell, 661 F.2d 623 (7th Cir.1981) has recently re-emphasized the intent of the Congressional drafters of the 1974 amendments to preserve the FBI's ability to elicit continued public cooperation in Bureau interviews and concluded:
661 F.2d at 627. Further, although this Court would not presume that disclosing names of FBI sources to Ingle would subject those sources to intrusion or harassment, it seems clear that it is properly the right of those sources themselves to waive any protection afforded by cooperating with the FBI and "not the role of the FBI to suffer them to do so". Id. at 628. See also Conoco, Inc. v. Dept. of Justice, 687 F.2d 724, 730 (3rd Cir.1982). It is, of course, well established that FBI agents themselves have the right to be protected against public disclosure of their participation in law enforcement investigations pursuant to exemption (b)(7)(C). Miller, supra; Nix v. United States, 572 F.2d 998 (4th Cir.1978).
Moreover, it is now settled that in order to invoke exemption (b)(7)(C) it is not necessary that the government actually initiate a prosecution. Bast v. Dept. of Justice, 665 F.2d 1251 (D.C.Cir.1981); Miller, supra. See also Founding Church of Scientology v. Regan, 670 F.2d 1158 (D.C.Cir. 1982) (regarding exemption (b)(7)(D)). Accordingly, the remaining exemptions claimed for Documents 4, 5 and 6 are upheld as not clearly erroneous.
The essence of the government's cross-appeal is that the district court abused its discretion in ruling that Documents 10 and 11 contained no exempt material prior to affording the government an opportunity to meet its burden of establishing exemptions. The government initially asserted below that the documents were beyond the scope of Ingle's request. The trial court, during the in camera review, concluded preliminarily that the request was broad enough to encompass Documents 10 and 11. However, without then extending Justice an opportunity to present any applicable exemptions, a presentation which would have been premature prior to resolution of the threshold issue that the material was within the scope of the case sub judice, the trial court undertook to examine the documents with an eye to discerning for itself the presence of any potentially exempt material.
In camera review does not suspend the adversary system nor abrogate the government's role of asserting any applicable exemptions. It is, at a minimum, an abuse of discretion for a trial court to become the government's advocate behind closed doors while the petitioner is left without knowledge of which exemptions are being advanced or why they are being accepted or rejected. Similarly, when a trial court seeks to discover potentially exempt material sua sponte, the government is left without an opportunity to apply its specialized knowledge of the contents of a document and its origin, so as to illuminate matter which would properly be withheld though is not immediately obvious to an untrained eye.
Further, upon direct review of Documents 10 and 11, this Court notes that the material therein resulted from an investigation of the same type of volatile racial
Appellant's claim for attorney fees which was neither presented to, nor passed upon by, the trial court is accordingly not properly before this Court.
The instant case is therefore affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.
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(b) This section does not apply to matters that are —