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Davin v. U.S. Dept. of Justice

filed: August 1, 1995.


On Appeal from the United States District Court for the Western District of Pennsylvania. (D.C. No. 92-cv-01122).

Before: Cowen, Lewis and Garth Circuit Judges.

Author: Cowen

COWEN, Circuit Judge.

Eric Davin appeals from the order of the district court granting summary judgment in favor of the United States Department of Justice, Federal Bureau of Investigation ("the FBI" or "the government") in a Freedom of Information Act ("FOIA") action. In response to a FOIA request by Davin, the FBI submitted to the district court a Vaughn index that set forth coded justifications and corresponding explanations for its withholding of approximately 7,400 pages of information. Because the Vaughn index submitted by the government did not sufficiently describe the information withheld, the district court did not have an adequate factual basis for determining whether the claimed exemptions applied to the individual documents. Accordingly, we will reverse the order of the district court and remand this matter for further determinations consistent with principles articulated in this opinion.


Davin is a graduate history student at the University of Pittsburgh in the field of labor history. In order to complete his doctoral dissertation, in April 1986 Davin filed a FOIA request with the FBI seeking "a complete and thorough search of all filing systems and locations for all records . . . pertaining to David Lasser and The Workers Alliance of America." App. at 99 (emphasis in original). The Workers Alliance of America ("WAA") was a nationwide organization representing the interests of thousands of unemployed individuals during the 1930's and 1940's. For a time, the WAA was headed by David Lasser. Because the WAA did not keep minutes of its meetings, there are no other archives of information on its activities. Lasser, who is now in his nineties, has provided the FBI with a letter authorizing release of his files.

The WAA was investigated by the FBI during the 1930's after the FBI received information that the organization was a front for the Communist Party of America. The purpose of the investigation was to determine the extent of Communist influence, and the identity of WAA members who were members of the Communist Party at the time. The FBI also investigated Lasser. According to the FBI, Communists had captured positions of control within the WAA by 1936. In 1940, Lasser resigned, claiming the WAA was a front organization for the Communist Party.

In response to Davin's request, the FBI located nine relevant files at either national headquarters or at the New York field office. The FBI described the files as follows:

FBIHQ main file, 61-7586, (45 sections) corresponds to NYFO main file, 100-3638, (6 sections). Both files pertain to an internal security investigation and were compiled for law enforcement purposes. A 61 classification is entitled "Treason or Misprision of Treason" and involves violations of Title 18, U.S.C., Sections 2381, 2382, 2389, 2390, 756 and 757. A 100 classification is entitled "Domestic Security" and covers investigations by the FBI in the domestic security field; e.g., Smith Act violations. The Attorney General declared WAA to be within the purview of Executive Order 9835, and later Executive Order 10450. The first serial is dated March 5, 1936, and the last serial is dated October 21, 1960. . . .

FBIHQ main file, 124-2592 is a loyalty investigation of David Lasser consisting of two sections. This classification covers security and loyalty investigations of personnel employed by or under consideration of employment with the European Recovery Program. Investigation was conducted under Public Law 472, 80th Congress. The first serial in this file is dated January 25, 1949, and the last serial is dated October 29, 1951.

FBIHQ main file 121-413, (Loyalty of Government Employees) consisting of one section, pertains to a preliminary inquiry to ascertain if David Lasser was associated with the Communist Party or its front organizations. Investigation of David Lasser under the provision of Executive Order 9835 . . . was instituted by the FBI on April 22, 1948. The first serial of this file is dated October 24, 1947, and the last serial is dated October 30, 1963.

FBIHQ main file, 151-748 involves one section. This classification covers referrals from the Office of Personnel Management where an allegation has been received regarding an applicant's loyalty to the U.S. Government. The Agency for International Development had requested the FBI to conduct a full field investigation under the provisions of Public Law 298, The Foreign Assistance Act of 1961, as amended. David Lasser was interviewed by the FBI in 1963 under the provisions of Executive Order 10450 . . . . The first serial is dated December 12, 1963, and the last serial in this file is dated January 29, 1976.

FBIHQ main file, 126-706 consists of one section concerning a name check request on David Lasser for clearance for access to highly classified material by National Security Resources Board. This classification covers background investigation conducted on individuals who are to be assigned to duties under the International Development Program. The first and last serials are dated November 14, 1950, and November 15, 1950, respectively.

FBIHQ main file 65-66314, (Espionage) consisting of one section which contains documentation based on information received concerning the possibility that David Lasser could be some individual who could divert information to the detriment of the defense of the United States. No investigation was conducted. This file was opened on September 22, 1960 and closed on September 27, 1960.

FBIHQ main file, 47-13920 is a two-page file which contains information that a representative of WAA had made a claim that he had authority from the Federal Government to represent individuals in claims of various municipalities. This file was opened and closed on February 19, 1938. This classification is entitled "Impersonation" and covers violations of Title 18, U.S.C., Sections 912, 913, 915, and 916.

FBIHQ main file, 61-10652 (two sections) was initially compiled to determine if David Lasser might act as an informant for the FBI or if he would be willing to supply details concerning Communist Party activities in WAA. The first serial of this file is dated June 20, 1940, and the last document in the file is dated February 8, 1951.

Declaration of Special Agent Robert A. Moran, App. at 60-63 (footnotes omitted) [hereinafter all citations to the Appendix refer to the Moran declaration].

The FBI asserts that its records relating to the WAA total approximately 9,200 pages and its records on David Lasser contain approximately 1,200 pages. As of May 18, 1991, the FBI had released to Davin only 113 pages regarding the WAA and 150 pages on Lasser.

In April 1992, Davin filed a complaint for injunctive relief demanding the production of the documents. Subsequently, pursuant to an agreement between the parties, Davin and the government submitted a joint motion to stay the case for 130 days to permit the government to submit a Vaughn index.*fn1 This motion stipulated that the FBI had reviewed 6,889 documents pursuant to Davin's FOIA request, had released 2,970 pages to Davin, and claimed exemptions to the remaining 3,919 pages. The joint motion further provided that the government would select approximately 500 documents (roughly every fourteenth or fifteenth page), compile a Vaughn index and submit it to the court with a motion for summary judgment.

Included in the government's subsequent motion for summary judgment was a declaration by FBI Special Agent Robert Moran. The purpose of Moran's declaration was to provide the court and Davin with a description of the material being withheld and justifications for the government's assertions of FOIA exemptions to withhold certain information contained in the records. The declaration consisted of correspondences concerning Davin's request, an explanation of the FBI's central records system and electronic surveillance index, a list of records pertaining to Davin's request, a sampling and definition of documents, a detailed explanation of the coded format used for justification of deleted material, and the justification for redacted materials.

A sampling of 500 pages was selected from the files. Each page was identified with a document number and indicated the file from which it came. An explanation of the types of documents in the sampling was also supplied. Portions of the documents were redacted. Located in proximity to the redacted material was a series of letters and numbers which corresponded to specific FOIA exemptions. In those instances where an entire page was redacted, justification code numbers for the withholding were substituted for the deleted page.

To determine the pertinent justification for deleted material on each processed document, the reader would refer to the document in question, note the code number adjacent to the deleted material and refer to the corresponding code categories. The memorandum then listed twenty-seven justification categories for withholding information, along with an explanation of the various categories.

Moran's declaration listed the FBI Main Files regarding Lasser and the WAA, but did not contain any factual description of the specific documents and portions of the documents withheld. Instead, Special Agent Moran offered generic explanations of the "justification categories" used to encode the Vaughn index. No specific index was created to factually link the generic descriptions with the encoded deletions, and the explanations themselves did not refer to Lasser or the WAA or any other fact connected with this action. No attempt was made to provide an individual rationale for the withholding of specific information.

The government asserted that of the 10,400 pages identified (9,200 on the WAA and 1,200 on Lasser), 2,970 had been released to Davin and that the remaining pages were being withheld under the following FOIA exemptions: (1) Category (b)(7)(C) Unwarranted Invasion of Personal Privacy; (2) Category (b)(7)(D) Confidential Source Material; (3) Category (b)(7)(E) Investigative Techniques and Procedures; and (4) Category (b)(2) Information related Solely to the Internal Personnel Rules and Practices of an Agency.

Following receipt of the declaration and exhibits, Davin filed a motion to compel production of documents for in camera review, arguing that the district court could not make an accurate determination of the validity of the redactions based upon the government's Vaughn index without review of the documents. Davin asserted that the government had failed to provide any factual information describing the individual documents withheld and thus failed to demonstrate the applicability of the exemptions it claimed.

The district court ordered an evidentiary hearing in which Agent Moran testified about twenty-five of the approximately 7,400 documents that had been withheld. These documents were selected by Davin from the "Treason or Misprision of Treason" file. Twenty-two of these pages were blackened out in their entirety. Agent Moran described the various categories under which the documents were withheld, although he did not testify to the contents of the withheld documents themselves.

The district court held that Agent Moran's testimony, together with the Vaughn index, demonstrated with "reasonable specificity" why the documents were exempt from disclosure. Accordingly, the district court granted the government's motion for summary judgment and denied Davin's motion to compel in camera examination. This appeal followed.


A two-tiered test governs our review of an order of the district court granting summary judgment in proceedings seeking disclosure of information under FOIA. We must "first decide whether the district court had an adequate factual basis for its determination." McDonnell v. United States, 4 F.3d 1227, 1242 (3d Cir. 1993) (citing Patterson by Patterson v. FBI, 893 F.2d 595, 600 (3d Cir.), cert. denied, 498 U.S. 812, 111 S. Ct. 48, 112 L. Ed. 2d 24 (1990)). This review is de novo and requires us to examine the affidavits below to determine "whether the agency's explanation was full and specific enough to afford the FOIA requester a meaningful opportunity to contest, and the district court an adequate foundation to review, the soundness of the withholding." Id. (quoting King v. Department of Justice, 265 U.S. App. D.C. 62, 830 F.2d 210, 217-18 (D.C. Cir. 1987)).

After reviewing the affidavits, "if this Court concludes that the affidavits presented a sufficient factual basis for the district court's determination, it must then decide whether that determination was clearly erroneous." Id. (citations omitted). Factual findings are clearly erroneous "'if the findings are unsupported by substantial evidence, lack adequate evidentiary support in the record, are against the clear weight of the evidence or where the district court has misapprehended the weight of the evidence.'" Id. (quoting Lame v. Department of Justice, 767 F.2d 66, 70 (3d Cir. 1985) (Lame II)).

The district court exercised jurisdiction in this matter pursuant to 5 U.S.C. § 552(a)(4)(B) (1988) and 28 U.S.C. § 1331 (1988). Our jurisdiction in this appeal rests on 28 U.S.C. § 1291 (1988).


Congress enacted the Freedom of Information Act, 5 U.S.C. § 552, in order "to facilitate public access to Government documents." United States Dep't of State v. Ray, 502 U.S. 164, 173, 112 S. Ct. 541, 547, 116 L. Ed. 2d 526 (1991). Premised on the belief that "an informed electorate is vital to the proper operation of a democracy," FOIA was intended to create an expedient tool for disseminating information and holding the government accountable. Coastal States Gas Corp. v. Department of Energy, 644 F.2d 969, 974 (3d Cir. 1981) (quoting S. Rep. No. 813, 89th Cong., 1st Sess. 3 (1965)). Consistent with this purpose, FOIA requires governmental agencies to make promptly available any records requested unless the requested information is exempt from disclosure under one of the nine specific exemptions set forth in the FOIA statute itself. 5 U.S.C. § 552(b) (1988 & Supp. V 1993).

The Act creates a strong presumption in favor of disclosure, Department of Air Force v. Rose, 425 U.S. 352, 361, 96 S. Ct. 1592, 1599, 48 L. Ed. 2d 11 (1976), and requires the district court to conduct a de novo review of a government agency's determination to withhold requested information. 5 U.S.C. § 552(a)(4)(B). The agency has the burden of showing that a statutory exemption applies. Id. Moreover, any reasonably segregable portion of a record must be made available to the person requesting the record. 5 U.S.C. § 552(b).

The review of FOIA cases "is made difficult by the fact that the party seeking disclosure does not know the contents of the information sought and is, therefore, helpless to contradict the government's description of the information or effectively assist the trial Judge." Ferri v. Bell, 645 F.2d 1213, 1222 (3d Cir. 1981), modified, 671 F.2d 769 (3d Cir. 1992). In order to "transform a potentially ineffective, inquisitorial proceeding against an agency that controls information into a meaningful adversarial process," the reviewing court may order the government to prepare a "Vaughn " index, identifying each document withheld, the statutory exemption claimed, and a particularized description of how each document withheld falls within a statutory exemption. Coastal States, 644 F.2d at 984. We have adopted the principles and procedures outlined in Vaughn. See, e.g., Ferri, 645 F.2d at 1222 & n.11.

The function of a Vaughn index and public affidavit is to establish a detailed factual basis for application of the claimed FOIA exemptions to each of the documents withheld. In McDonnell v. United States , 4 F.3d 1227 (3d Cir. 1993), we explained:

The significance of agency affidavits in a FOIA case cannot be underestimated . . . . 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 . . . . 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."

Id. at 1241 (quoting King, 830 F.2d at 218-19).

While there is no set formula for a Vaughn index, the hallmark test is "that the requester and the trial Judge be able to derive from the index a clear explanation of why each document or portion of a document withheld is putatively exempt from disclosure." Hinton v. Department of Justice, 844 F.2d 126, 129 (3d Cir. 1988). An agency is entitled to summary judgment when the agency's affidavits:

describe the withheld information and the justification for withholding with reasonable specificity, demonstrating a logical connection between the information and the claimed exemption . . ., and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.

American Friends Serv. Comm. v. Department of Defense, 831 F.2d 441, 444 (3d Cir. 1987) (quoting Abbotts v. Nuclear Regulatory Comm., 247 U.S. App. D.C. 114, 766 F.2d 604, 606 (D.C. Cir. 1985) (internal quotations and citations omitted)).


The fundamental inquiry in this case centers on whether the "categorical" method of indexing utilized by the government constitutes an adequate Vaughn index. The government offered the declaration of Agent Moran as its Vaughn index. The Moran declaration described the FBI's generalized FOIA procedures, including a summary of exemption "justification categories." It set forth a detailed explanation of the justification categories used to redact the material included in the declaration. Each justification category was denoted by a three or four letter code. These codes appeared next to the redacted portions of the exhibits. The government maintains that this declaration, in conjunction with Agent Moran's testimony, was a sufficiently adequate Vaughn index that permitted the district court to review all of the exemption claims advanced.

In its brief the government provided representative examples of the categorical indexing method it used. For instance, the declaration explained that code "b7D-3" appearing next to the first redacted paragraph means that the information was withheld because it was provided to the FBI by a source who had "received an express promise that it would be held in confidence" and contained information that could lead to the source's identity. App. at 87. The declaration further explained that disclosure had the potential of causing "great harm to the source," and of harming the FBI because of the "chilling effect on the activities and cooperation of other sources." App. at 88. As a second example, the government demonstrated that the list of names and addresses provided by the confidential source were withheld under category "b7C-6." The declaration explained that this category means that the information was withheld to prevent ...

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