McDonnell v. U.S.

4 F.3d 1227 (1993) | Cited 126 times | Third Circuit | September 21, 1993

Opinion OF THE COURT

HUTCHINSON, Circuit Judge.

Appellants and cross-appellees Robert J. McDonnell and Frederick N. Rasmussen (collectively "Plaintiffs")1 filed this action in the United States District Court for the District of New Jersey against appellees and cross-appellants the Department of the Navy ("Navy") and the Department of Justice ("DOJ") in its capacity as representative of the Federal Bureau of Investigation ("FBI") (collectively the "Government"). Plaintiffs seek disclosure under the Freedom of Information Act ("FOIA"), 5 U.S.C.A. § 552 (West 1977 & Supp. 1993), of certain information the Government has withheld concerning the 1934 Morro Castle disaster. The Morro Castle disaster occurred when a fire broke out on an ocean liner just off the coast of New Jersey on September 8, 1934. See United States v. Abbott, 89 F.2d 166, 166 (2d Cir. 1937). Over one hundred deaths resulted. Strange circumstances surrounded the fire. Just hours prior to the fire the Captain of the ship died, and there was a delay of almost an hour between the outbreak of the fire and the sending of an SOS signal. See id. (overturning conviction of chief officer and engineer of ship for criminal negligence in operation of vessel); see generally Thomas Gallagher, Fire At Sea (1959) (concluding that fire on Morrow Castle was deliberately set by ship's radio officer). Both Plaintiffs and the Government filed cross-motions for summary judgment. The district court granted each and denied each in part. All parties now appeal the portions of the district court's judgment adverse to their respective positions.

For the reasons that follow, we will affirm the order of the district court granting summary judgment to the Government under FOIA Exemptions 1 (matters relating to national security), 7(C) (records compiled for law enforcement purposes, disclosure of which would constitute an unwarranted invasion of personal privacy), and 7(D) (disclosure of identity of confidential sources or information they provide). 5 U.S.C.A. § 552 (B)(1),(7)(C),(7)(D). We will also affirm the district court's order granting summary judgment to the Government under Exemption 3 (matters specifically exempted from disclosure by statute) insofar as it permits the Government to withhold grand jury material, but we will reverse that order insofar as it permits the Government to withhold certain juvenile delinquency records requested by McDonnell. Id. § 552(b)(3). We will vacate the portion of the district court's order granting summary judgment to the Government under Exemption 6 and remand for further factual development. We will also vacate the district court's order granting summary judgment to McDonnell under Exemption 7(D) and remand for reconsideration in light of United States Dep't of Justice v. Landano, 124 L. Ed. 2d 84, 113 S. Ct. 2014, 2019-23 (1993). Finally, we will reverse the order of the district court granting summary judgment to McDonnell under Exemption 7(C).

I. Factual and Procedural History

Plaintiffs are authors who are interested in the events surrounding the fire aboard the ocean liner Morro Castle and its subsequent grounding off the coast of Asbury Park, New Jersey on September 8, 1934. The FBI conducted an investigation following this disaster under the special maritime jurisdiction of the United States, 18 U.S.C.A. §§ 7, 13 (West 1969 & Supp. 1993), in order to determine the cause of the fire and why so many lives were lost. A federal grand jury ultimately returned indictments against the owners and certain officers of the Morro Castle, charging them with willful neglect of duty under 18 U.S.C.A. § 1115 (West 1984). See United States v. Abbott, 89 F.2d 166 (2d Cir. 1937) (overturning conviction of chief officer and engineer for violation of statute).

In June 1985, Plaintiffs began their quest for information regarding the Morro Castle fire and its subsequent investigation. In their first correspondence with the Office of Congressional and Public Affairs, dated June 14, 1985, Plaintiffs requested, under the FOIA, records pertaining to the Morro Castle, George White Rogers, George Alagna, and the "Black Tom" explosion. On July 29, 1985, Plaintiffs expanded their original request to include John B. Duffy. On March 24, 1986, the FBI released 666 of 1,029 pages regarding the Morro Castle and specified the exemptions claimed for the withheld documents.

On March 31, 1986, Plaintiffs appealed the FBI's refusal to release the withheld documents. The FBI released additional documents regarding the Morro Castle on May 21, 1986. On June 3, 1986, it released documents concerning George White Rogers. On July 14, 1986, the Office of Information and Privacy ("OIP") advised Plaintiffs some additional records pertaining to deceased individuals in the Morro Castle file would be released, but the FBI's decision to withhold the remainder of the requested documents would be affirmed.

On August 18, 1986, Plaintiffs appealed the FBI's withholding of the remaining records containing information about George White Rogers. The OIP denied this appeal on October 9, 1986, and also informed Plaintiffs that the FBI would not release information regarding George Alagna until it received evidence of his death.

In the course of processing Plaintiffs' original June 1985 request, the FBI located three Navy documents. It sent two of these documents to the Naval Military Personnel Command ("NMPC") and the third to the Naval Investigative Service Command ("NISCOM") for evaluation. Lieutenant Commander Brian D. Robertson of the Judge Advocate General's Corps ("JAG Corps") reviewed the two documents sent to NMPC and determined that one document could be released in its entirety. Robertson included an unredacted copy of this document with a letter to Plaintiffs dated June 9, 1986, notifying them that the NMPC had received two documents from the FBI that were responsive to Plaintiffs' original FOIA request. This letter also advised Plaintiffs that Robertson had sent the second document to the Office of Naval Intelligence for classification review. After examining the document, the Deputy Director of Naval Intelligence advised NMPC that it was no longer classified. The second document was accordingly released to Plaintiffs in its entirety.

NISCOM reviewed the third document and ultimately released it to Plaintiffs with deletions made pursuant to 5 U.S.C.A. § 552(b)(7)(C) (West 1977 & Supp. 1993). Plaintiffs appealed this decision to the Secretary of the Navy on August 25, 1986. This appeal was denied.

Approximately one year later, Plaintiffs filed a separate request for information on George White Rogers, John B. Duffy, Admiral W.F. Halsey, and other matters directly with NISCOM. NISCOM's search for this information disclosed no relevant documents or files. Because Plaintiffs did not ask NISCOM to forward their request to other divisions of the Department of Navy, no further search was conducted.

On August 22, 1988, Plaintiffs filed a complaint in federal district court seeking disclosure under the FOIA of the requested information withheld by the Government.2 Plaintiffs sought preliminary and permanent injunctions ordering the disclosure of the following information:

1. The Navy records of George White Rogers.

2. The Navy records concerning "the outcome of the [Oscar] Niger investigation."

3. Information pertaining to Oscar Niger.

4. A threatening letter allegedly written by George White Rogers to Admiral Halsey.

5. Information withheld by the FBI pertaining to the Morro Castle, George Alagna, John B. Duffy, and the "Black Tom" file.

Plaintiffs also requested legible copies of all released documents, and that the court perform an in camera inspection of the withheld and redacted documents in order to ascertain the propriety of nondisclosure based on the specific exemptions asserted by the Government.

The Government filed an answer on November 4, 1988, generally denying Plaintiffs' claims and raising various defenses. In January 1989, Plaintiffs filed a motion for in camera inspection of the documents sought in the complaint. The Government responded that the motion was premature because it had not yet submitted its Vaughn index specifying the withheld documents and detailing the agency's justification for claiming exemption. See Patterson by Patterson v. FBI, 893 F.2d 595, 599 n.7 (3d Cir.), cert. denied, 498 U.S. 812, 112 L. Ed. 2d 24, 111 S. Ct. 48 (1990) (citing Vaughn v. Rosen, 157 U.S. App. D.C. 340, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977, 39 L. Ed. 2d 873, 94 S. Ct. 1564 (1974)). For this reason, the magistrate Judge denied Plaintiff's motion without prejudice.

On March 13, 1989, the Government filed its Vaughn index. It included the following proffers in support of the withheld documents: (1) the declaration of FBI Special Agent ("SA") William Earl Whaley regarding the material withheld pursuant to FOIA Exemption 1, 5 U.S.C.A. § 552(b)(1) (West 1977); (2) the declaration of FBI SA Angus Llewellyn regarding the material withheld pursuant to FOIA Exemptions 1, 2, 3, 6, 7(C), 7(D), and 7(E), 5 U.S.C.A. §§ 1, 2, 3, 6, 7(C)-(E) (West 1977 & Supp. 1993); (3) the declaration of Lieutenant Commander Robertson regarding the two documents forwarded by the FBI to the NMPC; and (4) two affidavits by Jacqueline D. Marini, Assistant Information and Privacy Coordinator, NISCOM, regarding the document forwarded by the FBI to NISCOM. On July 25, 1989, plaintiff McDonnell filed his own affidavit in response.

On August 31, 1989, Plaintiffs moved for summary judgment and renewed their motion for an in camera review of the withheld and redacted documents. On October 26, 1989, the Government filed a cross-motion for summary judgment on grounds that in searching for the documents Plaintiffs requested it had done all that was reasonable, and that it had properly withheld the redacted and undisclosed information pursuant to the specified FOIA exemptions. The Government also filed the Second Declaration of SA Llewellyn at this time.

Oral argument on the motions took place on July 16, 1990 in United States Magistrate's Court. At the magistrate Judge's direction, the Government also furnished for in camera inspection all materials produced to the grand jury investigating the Morro Castle and its crew, accompanied by an ex parte declaration of SA Llewellyn concerning the materials produced.

On June 7, 1991, the magistrate Judge filed a Report and Recommendation concluding, inter alia, that: (1) plaintiff Rasmussen lacked standing to sue because he never signed a FOIA request; (2) plaintiff McDonnell's requests for certain documents were either moot or premature, and he was not entitled to better copies of certain documents produced by the FBI; (3) the Government's withholding of certain documents under FOIA Exemptions 1, 3, and 6 was proper; and (4) the Government's withholding of certain documents under FOIA Exemptions 7(C) and (D) was proper, with the exception of documents relating to (a) the identities of any persons who the Government determined were deceased, (b) the identities of witnesses and other third parties whom the FBI had interviewed in connection with its investigations, and (c) sources of information who the magistrate Judge found had received neither express nor implied assurances of confidentiality at the time of their interviews. The magistrate Judge accordingly recommended that both Plaintiffs' and the Government's motions be granted in part and denied in part, thereby resolving "the entire case." Both parties filed written objections. The district court adopted the Report and Recommendation "in its entirety" by order entered on September 11, 1991. Both Plaintiffs and the Government filed timely notices of appeal from that order.

II. Preliminary Issues: Jurisdiction & Standing

A. Finality of the District Court's Order

The district court exercised subject matter jurisdiction pursuant to 5 U.S.C.A. § 552(a)(4)(B) (West 1977)3 and 28 U.S.C.A. § 1331 (West 1992).4 At the threshold, we must decide whether the district court's order granting partial summary judgment to both parties is a final appealable order within the meaning of 28 U.S.C.A. § 1291 (West Supp. 1993). The Government asserts that even if this order is not final, the portion ordering the Government to release certain withheld materials is an appealable injunction under 28 U.S.C.A. § 1292(a)(1) (West 1992).

Section 1291 confers on the courts of appeals "jurisdiction of appeals from all final decisions of the district courts of the United States . . . ." The magistrate Judge recommended granting summary judgment to the Government on all but three issues, on which it recommended granting summary judgment to Plaintiffs: (1) The withholding pursuant to Exemption 7(C) of the identity of witnesses and third parties interviewed in connection with the Morro Castle disaster; (2) the withholding pursuant to Exemption 7(C) of information regarding deceased persons to which no other exemption applies; and (3) the withholding pursuant to Exemption (7)(D) of information claimed to have been provided under implied assurances of confidentiality to which no other exemption applies.5 The district court adopted the Report and Recommendation in its entirety.

The Report and Recommendation disposes of all substantive issues raised by the parties. The docket sheet does not reflect any pending motions in the district court. Plaintiffs' letter response to this Court's inquiry on the question of jurisdiction seems to indicate, however, that there is an outstanding motion for attorneys' fees:

The above request [to certify the district court's judgment as final] is made on the assumption that Motions for attorney's fees need not be resolved first in the Third Circuit; particularly where appeals are contemplated in any event. If the assumption is incorrect, then all issues are not resolved.

Letter dated Dec. 2, 1991 from Joseph Hillman, Jr. to Bradford A. Baldus, Esq., P 2, Motion Appendix, Exh. 9.

Even if a motion for attorneys' fees is still pending in the district court, that motion does not constitute a bar to our exercise of jurisdiction under § 1291. See Budinich v. Becton Dickinson & Co., 486 U.S. 196, 198-202, 100 L. Ed. 2d 178, 108 S. Ct. 1717 (1988) (decision on merits is final and therefore immediately appealable for purposes of § 1291 despite unresolved petition for attorney fees); Halderman v. Pennhurst State School & Hospital, 673 F.2d 628, 644 (3d Cir. 1982) (in banc) (orders finally disposing of merits are appealable even though questions relating to attorneys' fees have been left undetermined) cert. denied, 465 U.S. 1038, 79 L. Ed. 2d 712, 104 S. Ct. 1315 (1984). Because we have jurisdiction over this appeal under § 1291, we need not reach the Government's alternative argument that we may treat the district court's order requiring production of materials withheld under Exemptions (7)(C) and (D) as an appealable injunction under 28 U.S.C.A. § 1292(a)(1).

B. Standing of Plaintiff Rasmussen

A second preliminary issue concerns Rasmussen's standing to pursue this appeal under the FOIA. Although his interest was asserted, Rasmussen's signature does not appear on any of the FOIA requests, and he, himself, did not formally pursue administrative remedies upon the denial of these requests. The district court accepted the magistrate Judge's recommendation that it hold Rasmussen lacks standing to sue in the present case because he failed to make any administrative request of his own for the information he and McDonnell now seek.

Rasmussen first argues that he has standing under the plain language of the FOIA, which requires agencies to make records and information available "to any person," 5 U.S.C.A. § 552(a)(3) (West 1977), and does not prohibit one requester from acting on behalf of others nor require each member of a group interested in the information to sign a request. Rasmussen reads § 552(a)(3) too literally. An agency's duty to make records available to "any person" under that section is not absolute. Instead, § 552(a)(3) conditions the agency's duty upon receipt of a request that is made in accordance with published rules stating the time, place, fees, and procedures to be followed and that reasonably describes the records sought. 5 U.S.C.A. § 552(a)(3)(A)-(B); see 28 C.F.R. § 16.1(b)(5) (1992) (defining "requester" as any person who makes request to component of DOJ); id. § 16.1(b)(4) (defining "request" as any request for records made pursuant to 5 U.S.C.A. § 552(a)(3)); id. § 16.3 (delineating requirements for FOIA requests submitted to DOJ); 32 C.F.R. § 701.7 (1992) (outlining requirements for FOIA requests submitted to Navy). Upon receipt of such a request, the agency must determine within ten days whether it will comply with the request "and shall immediately notify the person making such request of such determination and the reasons therefor, and of the right of such person to appeal to the head of the agency any adverse determination." 5 U.S.C.A. § 552(a)(6)(A)(i) (West 1977) (emphasis added); accord 32 C.F.R. § 701.7(a) (1992). The requesting individual must appeal an adverse determination to the head of the agency before filing suit in federal court. 5 U.S.C.A. § 552(a)(4), (6)(A)(ii); see Dettman v. Department of Justice, 256 U.S. App. D.C. 78, 802 F.2d 1472, 1476-77 (D.C. Cir. 1986) (FOIA lawsuit subject to dismissal for lack of subject matter jurisdiction if plaintiff fails to timely exhaust administrative remedies); accord Hymen v. Merit Systems Protection Bd., 799 F.2d 1421, 1423 (9th Cir. 1986), cert. denied, 107 S. Ct. 1900 481 U.S. 1019, 95 L. Ed. 2d 506 (1987); Brumley v. Department of Labor, 767 F.2d 444, 445 (8th Cir. 1985); see also Oglesby v. Department of Army, 287 U.S. App. D.C. 126, 920 F.2d 57, 61-65 (D.C. Cir. 1990).

We think a person whose name does not appear on a request for records has not made a formal request for documents within the meaning of the statute. Such a person, regardless of his or her personal interest in disclosure of the requested documents, has no right to receive either the documents, e.g., 32 C.F.R. § 701.7(c)(1)-(3) (1992), or notice of an agency decision to withhold the documents, see id. § 701.7(a); 5 U.S.C.A. § 552(a)(6)(A). Rasmussen essentially concedes this point. See Reply Brief for Plaintiffs at 8 (acknowledging that § 701.7 establishes procedures for requesting records from Navy under FOIA, "implying that the identity of the requester or requesters be disclosed so that the Navy can reply to the request"). Accordingly, a person like Rasmussen whose name does not appear on a FOIA request for records may not sue in district court when the agency refuses to release requested documents because he has not administratively asserted a right to receive them in the first place.

The legislative history of § 552 supports this Conclusion. House Report No. 1497 rejected "the negative approach of the present law (5 U.S.C. § 1002) which permits only persons properly and directly concerned to have access to official records" and heralded the FOIA as "establishing the basic principle of a public records law by making the records available to any person." H.R Rep. No. 1497, 89th Cong. 2d Sess., reprinted in 1966 U.S.C.C.A.N. 2418, 2426. This language means that any person who submits a request may obtain access to governmental records regardless of whether they have a personal stake in the information sought. The following language in the cited section of the House Report is illustrative:

The persons requesting records must provide a reasonable description enabling Government employees to locate the requested material . . . .

H.R. Rep. No. 1497, reprinted in 1966 U.S.C.C A.N. at 2426. (emphasis added). This statement reflects Congress's intent to identify the person making the request with the person aggrieved when a request is denied.

Rasmussen, however, points to the legislative history of the 1974 amendments to the FOIA. See H.R. Rep. 93-876, 93d Cong., 2d Sess., reprinted in 1974 U.S.C.C.A.N. at 6267. In its letter included in the Appendix to the House bill, DOJ voiced its objections to the proposed amendment awarding attorneys' fees to successful plaintiffs under the FOIA, stating that an award of attorneys' fees is "particularly inappropriate" "in a type of litigation which can be initiated by anyone without the customary legal requirements of standing or interest or injury." H.R. Rep. 93-876, reprinted in 1974 U.S.C.C.A.N. at 6280. Rasmussen would have us treat this isolated sentence as a concession by the Government that he need not have signed a FOIA request in order to have standing as a plaintiff in the present action.

Rasmussen's argument is without merit. The fact that Congress ultimately passed the amendment providing for an award of attorneys' fees could alone be interpreted as an implicit rejection of DOJ's premise that the FOIA has no standing requirements. See H.R. Rep. 93-876, reprinted in 1974 U.S.C.C.A.N. at 6272 (award of attorneys' fees to prevailing FOIA plaintiff desirable when suit advances strong congressional policy); see also 5 U.S.C.A. § 552(a)(4)(E) (West 1977) (court may assess against United States reasonable attorney fees and other litigation costs reasonably incurred where FOIA complainant has "substantially prevailed"). Moreover, as discussed above, other portions of the legislative history of § 552 indicate that a person must have submitted a formal request under the FOIA in order to challenge an agency's decision not to release the requested documents.

Precedent lends additional support to this requirement. The FOIA "is fundamentally designed to inform the public about agency action. . . ." N.L.R.B. v. Sears, Roebuck & Co., 421 U.S. 132, 144, 44 L. Ed. 2d 29, 95 S. Ct. 1504 n.10 (1975) (citations omitted). A person seeking information under the FOIA therefore need not have a personal stake in the information sought. Rather, the FOIA

creates a private cause of action for the benefit of persons who have requested certain records from a public agency and whose request has been denied. 5 U.S.C. § 552 (a)(3). The statute requires nothing more than a request and the denial of that request as a predicate to a suit in the district court.

United States v. Richardson, 418 U.S. 166, 204, 41 L. Ed. 2d 678, 94 S. Ct. 2940 (1974) (Stewart, J., Dissenting). A "case or controversy" conferring standing arises only when a person makes a request for information under the FOIA and the petitioned agency denies that request. See id. at 171 (Burger, C.J., majority) (judicial power may be exercised only in case properly before court, i.e., "case or controversy" not suffering limitations of political question doctrine, mootness, or calling for advisory opinion) (citing Marbury v. Madison, 5 U.S. 137, 1 Cranch 137, 2 L. Ed. 60 (1803)). "[A] 'fundamental aspect of standing' is that it focuses primarily on the party seeking to get his complaint before the federal court rather than 'on the issues he wishes to have adjudicated.'" 418 U.S. at 174 (quoting Flast v. Cohen, 392 U.S. 83, 99, 20 L. Ed. 2d 947, 88 S. Ct. 1942 (1968)). The filing of a request, and its denial, is the factor that distinguishes the harm suffered by the plaintiff in an FOIA case from the harm incurred by the general public arising from deprivation of the potential benefits accruing from the information sought. See 418 U.S. 166 at 172 (party raising constitutional challenge to statute must show not only invalidity but also that he has sustained or is immediately in danger of sustaining direct injury as result of its enforcement, not merely that he suffers in some indefinite way in common with people generally) (quoting Frothingham v. Mellon, 262 U.S. 447, 488, 67 L. Ed. 1078, 43 S. Ct. 597 (1923)); Rushforth v. Council of Economic Advisers, 246 U.S. App. D.C. 59, 762 F.2d 1038, 1039 n.3 (D.C. Cir. 1985) (standing lies as general matter where request is submitted under FOIA for existing documents). In the present case, McDonnell's name alone6 appears on the requests for records submitted to the FBI and the Navy. He alone pursued the administrative appeals of those agencies' decisions not to release the requested information, the exhaustion of which was a prerequisite to the district court's exercise of subject matter jurisdiction. Accordingly, only McDonnell has standing to pursue this case.

Apparently as an equitable matter, Rasmussen also urges that it is imperative he not be dismissed because, if McDonnell should die, the lawsuit would be terminated and the public's right to information about the Morro Castle disaster would be irreparably harmed. The abstract interest of either Rasmussen or the public in the Morro Castle disaster does not change the fact that Rasmussen did not actually make any of the requests which form the basis of this lawsuit.7 See Sears, 421 U.S. at 144 n.10 (that requester claims interest in information sought greater than that shared by average member of public neither increases nor decreases rights to access). The district court therefore correctly determined that Rasmussen lacked standing to sue.8 Therefore, in our Discussion of the merits of the issues, we will refer to plaintiff McDonnell only.

C. Exhaustion of Administrative Remedies

The third and final preliminary issue we must consider is whether McDonnell's action should have been barred for failure to exhaust administrative remedies. McDonnell maintains that he was not required to file an administrative appeal from the Government's failure to respond to those requests before commencing this lawsuit in federal court. Therefore, McDonnell argues that subject matter jurisdiction automatically vested when the Government missed the statutory deadline for responding to his request for certain classes of information.

Before addressing the extent, if at all, that McDonnell's action may be barred by the exhaustion requirement, it is necessary to classify the various categories of information with which we are concerned. McDonnell originally requested information regarding four classes of information: the Black Tom explosion, George Alagna, John B. Duffy, and Oscar Niger. The magistrate Judge determined that McDonnell's request for information on the Black Tom explosion was moot because he had not included it in his Supplemental Certification listing all information still sought from the Government. The magistrate Judge also noted that at oral argument McDonnell's only response to the Government's assertion that he had failed to exhaust his administrative remedies with regard to Alagna and Duffy was to ask the court to order that any and all information regarding those individuals not be destroyed. On this basis, the magistrate Judge concluded that McDonnell had conceded that he had not exhausted his administrative remedies regarding information on Duffy and Alagna.

McDonnell does not specifically appeal from these decisions, although he does characterize the exhaustion issue as involving "the FOIA request for information on Oscar Niger and others . . . ." Brief for Plaintiffs at 17. He also argues that "the inappropriate 'mooting' of issues to arrive at Summary Judgment should be discouraged. If the record does not support Summary Judgment, the case should be set down for trial." Id. at 22. McDonnell fails, however, to indicate by reference to the record how summary judgment is precluded other than by his argument that the Navy's assertion that the requested Rogers/Halsey letter was "not found" is ambiguous. The magistrate Judge's ruling of failure to exhaust administrative remedies did not extend to information regarding either Rogers or Halsey. It appears, therefore, that this issue affects only McDonnell's request for documents regarding Niger.

McDonnell had requested information about Niger from the FBI on February 2, 1988. On March 1, 1988 the FBI asked McDonnell to furnish "identifying data" and proof of death regarding Niger. On June 28, 1988, the FBI informed McDonnell that his request concerning Niger had been placed in "closed" status because he had not supplied the necessary information. McDonnell filed an administrative appeal from the closing of the file, which DOJ acknowledged it received on July 21, 1988. DOJ affirmed the FBI's closing of the file on March 8, 1989.

Almost one year later, on February 20, 1990, McDonnell supplied the necessary identifying data and proof of death to the United States Attorney's Office in Trenton, New Jersey. The FBI treated this action as reviving McDonnell's original request and ultimately produced some, but not all, of the requested information. McDonnell did not file an administrative appeal from this action. Rather, in a letter dated October 22, 1990, he made an informal request to the magistrate Judge for leave to supplement the record to add to his FOIA complaint the Niger files the FBI had refused to produce. The magistrate Judge treated this letter as a motion to amend the complaint and denied it on the ground that McDonnell had failed to exhaust his administrative remedies by not filing an administrative appeal from the FBI's refusal to produce all of the Niger files.

McDonnell appeals from this refusal, arguing that subject matter jurisdiction automatically vested when the FBI failed timely to respond to his initial request for information about Niger on February 2, 1988. Central to this argument is 5 U.S.C.A. § 552(a)(6)(A). Subsection (A)(i) of that statute provides that the agency to which an FOIA request has been submitted must notify the person making the request whether it will comply within ten days after receiving the request. Subsection (A)(ii) imposes a similar twenty-day time limit for the agency to respond after the receipt of an administrative appeal. § 552(a)(6)(A)(ii). Subsection (C) provides that a person making a request shall be deemed to have exhausted his administrative remedies if the agency fails to comply with either deadline. § 552(a)(6)(C).

It is beyond dispute that the FBI did not comply with the ten-day time limit under § 552(a)(6)(A)(i) after McDonnell's initial request for the Niger documents: McDonnell filed that request on February 2, 1988, but the FBI did not respond until March 1, 1988, nearly thirty days later. McDonnell thus argues that "jurisdiction is vested in the Court by the passing of the statutory deadline; and need only be invoked by the filing of a complaint. . . . Nowhere in any authority can plaintiff find any support of the idea that the government can destroy the jurisdiction of the Court by closing its file." Brief for Plaintiffs, at 18-19. The Government responds that McDonnell may not rely on the "automatic" jurisdiction provision of subsection (C) because instead of filing his complaint immediately after the expiration of the ten-day deadline, he waited until after the Government produced at least some of the documents he requested.

The United States Court of Appeals for the District of Columbia Circuit squarely addressed this issue in Oglesby v. Department of Army, 287 U.S. App. D.C. 126, 920 F.2d 57 (D.C. Cir. 1990). It initially noted that the FOIA requires exhaustion of the administrative appeals process before an individual may seek relief in the district court. 920 F.2d at 61 (citations omitted). Nevertheless,

§ 552(a)(6)(C) permits a requester to file a lawsuit when ten days have passed without a reply from the agency indicating that it is responding to his request, but [] this option lasts only up to the point that an agency actually responds. Once the agency has responded to the request, the petitioner may no longer exercise his option to go to court immediately. Rather, the requester can seek judicial review only after he has unsuccessfully appealed to the head of the agency as to any denial and thereby exhausted his administrative remedies. Thus, if the agency responds to a FOIA request before the requester files suit, the ten-day constructive exhaustion provision . . . no longer applies; actual exhaustion of administrative remedies is required.

Id.

Thus, if McDonnell had taken no further action after filing this lawsuit in August 1988, his appeal of DOJ's determination upholding the FBI's closing of the Niger file would properly be before this Court. McDonnell, however, revived his request in February 1990 by submitting the necessary information. Whether the FBI timely responded to this request is irrelevant because, even assuming that it failed to do so, McDonnell did not move to amend his complaint to include an appeal from this failure until after the FBI had in fact responded. Under Oglesby, once the FBI had responded, McDonnell once again became obligated to pursue his administrative remedies. At no time after he revived his request did McDonnell file an administrative appeal from the withholding of portions of the Niger documents. Therefore, the district court correctly declined to exercise subject matter jurisdiction over McDonnell's FOIA claim regarding the Government's withholding of certain portions of those documents.9

Additionally, McDonnell argues that

To the extent that the Rules and Regulations of the defendant agencies require plaintiff to take an administrative appeal from an initial denial, or require plaintiff to do more than make an initial valid request for information to begin the running of the statutory time limits; such Rules and Regulations should be determined to be invalid as beyond the reasonable scope of statutory authority provided in 5 USC 552 (a) (4).

Brief for Plaintiffs at 19. McDonnell does not elaborate further on this argument.

"Exhaustion of administrative remedies is generally required before filing suit in federal court so that the agency has an opportunity to exercise its discretion and expertise on the matter and to make a factual record to support its decision." Oglesby, 920 F.2d at 61 (citation omitted). "Allowing a FOIA requester to proceed immediately to court to challenge an agency's initial response would cut off the agency's power to correct or rethink initial misjudgments or errors." Id. at 64. For these reasons, we decline to rule that the requirements embodied in § 552(a)(6) are unreasonable.

III. Discussion

Having disposed of all preliminary issues, we turn at last to the merits. In a FOIA case, the district court reviews all agency exemptions de novo. 5 U.S.C.A. § 552(a)(4)(B) (West 1977). The burden is on the agency to justify its decision to withhold the requested material. Id. The agency may meet this burden by filing affidavits describing the material withheld and detailing why it fits within the claimed exemption. King v. Department of Justice, 265 U.S. App. D.C. 62, 830 F.2d 210, 217-18 (D.C. Cir. 1987). As the United States Court of Appeals for the District of Columbia Circuit has aptly observed,

The significance of agency affidavits in a FOIA case cannot be underestimated. As, ordinarily, the agency alone possesses knowledge of the precise content of documents withheld, the FOIA requester and the court both must rely upon its representations for an understanding of the material sought to be protected. As we observed in Vaughn v. Rosen, "this lack of knowledge by the party seeing [sic ] disclosure seriously distorts the traditional adversary nature of our legal system's form of dispute resolution," with the result that "an appellate court, like the trial court, is completely without the controverting illumination that would ordinarily accompany a lower court's factual determination." Even should the court undertake in camera inspection of the material--an unwieldy process where hundreds or thousands of pages are in dispute--"the scope of the inquiry will not have been focused by the adverse parties. . . ."

Affidavits submitted by a governmental agency in justification for its exemption claims must therefore strive to correct, however imperfectly, the asymmetrical distribution of knowledge that characterizes FOIA litigation. The detailed public index which in Vaughn we required of withholding agencies is intended to do just that: "to permit adequate adversary testing of the agency's claimed right to an exemption," and enable "the District Court to make a rational decision whether the withheld material must be produced without actually viewing the documents themselves, as well as to produce a record that will render the District Court's decision capable of meaningful review on appeal." Thus, when an agency seeks to withhold information, it must provide "a relatively detailed justification, specifically identifying the reasons why a particular exemption is relevant and correlating those claims with the particular part of a withheld document to which they apply."

1. The reference to plaintiffs McDonnell and Rasmussen, collectively, in connection with the actions taken before the administrative agencies should be read with the understanding that only McDonnell submitted and signed the document requests. See infra Section II. B.

2. Plaintiffs named as defendants the Navy and DOJ. This opinion primarily refers to the FBI rather then DOJ because the FBI is the body that authorized the release and withholding of the requested documents.

3. This section provides in pertinent part that On complaint, the district court of the United States in the district in which the complainant resides, or has his principal place of business, or in which the agency records are situated, or in the District of Columbia, has jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant. 5 U.S.C.A. § 552(a)(4)(B).

4. This section provides that The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treatises of the United States. 28 U.S.C.A. § 1331.

5. The Government submits, and Plaintiffs agree, that to the extent that other exemptions may apply to the documents ordered produced under Exemptions 7(C) and (D), the parties have raised and the district court has addressed the applicability of those exemptions.

6. Rasmussen's name appears only once in the flurry of requests for information and appeals by McDonnell that form the basis of this lawsuit. In a letter dated January 8, 1986 and addressed to Anna C. Urband, Media Service Branch, Office of Information, Department of the Navy, McDonnell begins a request for information by stating, "Mr. Fred Rasmussen of The Baltimore Sun and I are researching the tragic burning of the luxury passenger liner, Morro Castle, off the New Jersey Coast, 8 September 1934." Letter dated Jan. 8, 1986 from Robert J. McDonnell to Anna C. Urband, Appellant's Appendix ("App.") at 194. This passing reference to Rasmussen does not sufficiently identify him with the person making the request to confer on him standing to challenge the denial of the request under the FOIA.

7. In a related argument, Rasmussen asserts that as co-author of a book about the Morro Castle incident, his rights to freedom of speech and the press are at stake, and that such rights do not vary with the identity of the speaker or author. See Simon & Schuster, Inc. v. New York Crime Victims Bd., 116 L. Ed. 2d 476, 112 S. Ct. 501 (1991). McDonnell likewise asserts various arguments based on the first amendment throughout the briefs. It appears that these arguments have been raised for the first time on appeal. Thus, we need not consider them. To the extent that they are not waived and relevant, they appear to have little, if any, merit. Accordingly, we will not discuss them.

8. As a co-author, McDonnell seems to share Rasmussen's interest. There is no indication that McDonnell has failed to adequately protect their common interest and Rasmussen has never sought leave to intervene.

9. The magistrate Judge indicated that McDonnell's failure to exhaust his administrative remedies deprived the court of subject matter jurisdiction. This is not exactly correct. A failure to exhaust administrative remedies does not per se deprive the court of subject matter jurisdiction. It is a prudential consideration that the court takes into account in determining whether to exercise subject matter jurisdiction. See Darby v. Cisneros, 125 L. Ed. 2d 113, 113 S. Ct. 2539, 2543 (1993) ("Whether courts are free to impose an exhaustion requirement as a matter of judicial discretion depends, at least in part, on whether Congress has provided otherwise . . . .") (citing McCarthy v. Madigan, 117 L. Ed. 2d 291, 112 S. Ct. 1081, 1086 (1992)).

10. In a typical review of an order granting summary judgment, this Court employs the same standard as the district court and will affirm if (1) there is no genuine issue as to any material fact in dispute, and (2) the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); see Lame II, 767 F.2d at 70.

11. The Whaley Declaration identifies these documents as: Memorandum For the Director Dated September 14, 1934 File Number 45-833, serial 20 Incoming Telegram Dated September 16, 1934 File Number 45-833, serial 37 Outgoing Communication Dated September 20, 1934 File Number 45-833, serial 37 (Serial number is the same as on incoming Telegram dated September 16, 1934) Memorandum For Mr. Tamm Dated September 26, 1934 File Number 45-833, serial 49 Report at New York City Dated October 13, 1934 File number 45-833, serial 73 App. at 80.

12. The passage which McDonnell cites to in the report and recommendation states in a footnote, It has also been brought to this Court's attention that "the Niger documents were declassified on July 19, 1990." See Plaintiff's October 22, 1990 letter. Plaintiff makes this bald statement without providing any documentation or supporting information. Without more information, the Court is unable and unwilling to make any recommendation regarding the supposed declassification of the Niger documents. App. at 389.

13. Rule 6(e)(2) also imposes a rule of secrecy on any typist who transcribes recorded grand jury testimony and any government personnel to whom a court has ordered disclosure under subsection (e)(3)(A)(ii), which provides, Disclosure otherwise prohibited by this rule of matters occurring before the grand jury, other than its deliberations and the vote of any grand juror, may be made to -- (ii) such government personnel (including personnel of a state or subdivision of a state) as are deemed necessary by an attorney for the government to assist an attorney for the government in the performance of such attorney's duty to enforce federal criminal law. Fed. R. Crim. P. 6(e)(3)(A)(ii).

14. McDonnell does not argue that the expiration of time lifts the shroud of secrecy that hides grand jury matters. Moreover, the magistrate Judge's order that the Government produce information regarding persons whom it determines to be deceased does not apply to information withheld pursuant to Exemption 3, as discussed below.

15. A "rap sheet," or identification records, is a FBI record on an individual whose fingerprints have been submitted to the FBI in connection with arrests and, in certain instances, employment, naturalization and military service. Reporters Committee, 816 F.2d at 732 n.2 (citing 28 C.F.R. § 16.31 (1986)). A rap sheet typically includes information concerning an individual's arrests, indictments, convictions, and imprisonment, and a notation of the source of the information. Id. Thus, it is somewhat similar to what one might expect to be contained in a person's juvenile delinquency records.

16. That statute provides in pertinent part, (a) The Attorney General shall-- (1) acquire, collect, classify, and preserve identification, criminal identification, crime and other records; . . . . (4) exchange such records and information with, and for the official use of, authorized officials of the Federal Government, the States, cities, and penal and other institutions. (b) The exchange of records and information authorized by subsection (a)(4) of this section is subject to cancellation, if dissemination is made outside the receiving departments or related agencies. 28 U.S.C.A. §§ 534(a)(1), (4), (b) (West 1982).

17. It is, however, noteworthy that Rogers died in 1956, almost forty years ago, and his juvenile record spans a decade from 1911 to 1922. Although a court reviewing an agency's withholding under Exemption 3 does not balance the privacy interest of the subject of the documents, as it should in applying Exemption 7(C), any privacy interest implicated by disclosure of Rogers' juvenile records would be extremely weak under this circumstance. It is also noteworthy that in Reporters Committee, the FBI released the rap sheet of one subject who was deceased at the time it received the FOIA request for disclosure, although it later described that release as a mistake. See 816 F.2d at 732. At a later date, after the requesters had filed suit, the FBI offered to release the rap sheets and other criminal information in its possession regarding two other subjects who were alive at the time of the initial request but who had died during the pendency of the lawsuit. See id. at 733.

18. Section 5038 provides that juvenile delinquency records "shall be released to the extent necessary to meet the following circumstances:" (1) inquiries received from another court of law; (2) inquiries from an agency preparing a presentence report for another court; (3) inquiries from law enforcement agencies where the request for information is related to the investigation of a crime or a position within that agency; (4) inquiries, in writing, from the director of a treatment agency or the director of a facility to which the juvenile has been committed by the court; (5) inquiries from an agency considering the person for a position immediately and directly affecting the national security; (6) inquiries from any victim of such juvenile delinquency, or if the victim is deceased from the immediate family of such victim, related to the final Disposition of such juvenile by the court in accordance with section 5037. 18 U.S.C.A. § 5038(a)(1)-(6).

19. McDonnell argues that the Government cannot assert the privacy interests of persons identified in its files. This argument has no merit. See Reporters Committee, 489 U.S. at 772-75. McDonnell also argues that the Government's assertion of Exemption 7(C) to withhold information somehow prevents the persons who are the subject of that information from revealing that information if they so choose. This argument is likewise without merit. The FOIA in no way prevents a person from waiving his or her privacy interest in information withheld by the government by making that information public. See id.

20. The Government claims that remand is unnecessary because all of the information exempt from disclosure by Exemption 7(D) is also exempt by Exemption 7(C). The district court should determine the degree of overlap, if any, on remand.

21. We note that McDonnell also complains about the illegibility of some of the documents that have been furnished to him. The Morro Castle files were transferred in 1954 to microfilm from documents that had been extensively used in the twenty-year period between that transfer and the original 1934 disaster. Because the original documents are no longer available, the FBI conducted its FOIA review process in three steps: (1) Transferring the microfilm document onto specially heat-treated Kodak paper, or "slick," (2) creating a second "dry" copy from the slick and excising any exempt material by "brown-outs," and (3) copying the "browned-out" dry copy for release to McDonnell. The magistrate Judge found that a number of these documents released to McDonnell were illegible as a result of the review process, and indeed the copies of several documents included in the record are impossible to read. The Government nevertheless asserted during oral argument that new technology had enabled it to produce better quality copies, which it has supplied to McDonnell. Of course, we anticipate that McDonnell will receive the best possible reproductions of the documents to which he is entitled. If it is impossible to make legible copies, but the microfilm is legible, then arrangements could be made to have redacted transcripts prepared by a transcriber with appropriate security clearance. Such copies, of course, should be made at the expense of the plaintiff.

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