Church v. DOJ
Case Date: 07/26/1994
Court: United States Court of Appeals
Docket No: 94-1112
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UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT ____________________ No. 94-1112 CHURCH OF SCIENTOLOGY INTERNATIONAL, Plaintiff, Appellant, v. UNITED STATES DEPARTMENT OF JUSTICE, Defendant, Appellee. ____________________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. A. David Mazzone, Senior U.S. District Judge] __________________________ ____________________ Before Selya, Circuit Judge, _____________ Coffin and Bownes, Senior Circuit Judges. _____________________ ____________________ Kendrick L. Moxon for appellant. _________________ George B. Henderson, II, Assistant United States Attorney, with ________________________ whom Donald K. Stern, United States Attorney, was on brief for _________________ appellee. ____________________ July 26, 1994 ____________________ COFFIN, Senior Circuit Judge. The plaintiff Church of _____________________ Scientology International brought this action under the Freedom of Information Act (FOIA), 5 U.S.C. 552, to compel disclosure of documents held by the Department of Justice pertaining to the Church and related entities. The Department released about 1,000 pages in full or in part, but withheld more than 700 additional pages based on various FOIA exemptions. The Church objected to both the breadth of the Department's internal search for documents and the number of exemptions asserted. The district court granted summary judgment for the government. On appeal, the Church argues that the government has not satisfied its burden of showing that no further documents are subject to release, and that the court consequently erred in granting judgment as a matter of law. We affirm part of the court's decision, but vacate the remainder and remand for further proceedings. I. Background __________ In September 1988, the Department's Executive Office for United States Attorneys (EOUSA) received a FOIA request from the Church seeking all records located in the U.S. Attorney's office in Boston that concerned the Church, two related Church entities, or Scientology in general. The Church particularly was interested in documents about a check fraud scheme involving the Church as a victim, and a later extortion plot against the Church -2- arising from the fraud.1 In April 1990, the EOUSA released 542 pages in full or in part, and informed the Church that additional responsive material had been withheld pursuant to specified FOIA exemptions. The government also reported that other documents had been referred to the agencies from which they had originated for consideration of release. The Church administratively appealed, challenging the adequacy of the search and the validity of the exemptions. In September 1992, having received no response, the Church filed this action. The records concerning the Church's request were then reviewed by a special assistant U.S. attorney, Charlene Stawicki, who concluded that the lapse of time since the original search made it difficult to ascertain how it was performed. She therefore arranged a new search, the nature of which is detailed fully in the district court's opinion. It suffices to say here that the search involved the use of a comprehensive computerized record-tracking system. The new search led to the release of an additional 459 pages in full and 14 pages in part. Two further reviews of the documents, one following the Supreme Court's clarification of FOIA law in United States Dep't of Justice v. Landano, 113 S. Ct. ______________________________ _______ 2014 (1993), and another based on a new policy statement from ____________________ 1 The Church asserts two primary purposes for its document request. First, it believes that false reports about the Church have precipitated FBI harassment of Church members and investigators, and Church officials therefore want to acquire any such reports so that the information may be corrected. Second, the Church wants to learn why the government did not prosecute more than one individual in the check fraud scheme. -3- President Clinton and Attorney General Reno,2 resulted in the release of approximately 75 more pages in full and 15 in part. This succession of disclosures left about 744 pages withheld in full and approximately two dozen withheld in part. The bases for these withholdings were set forth in declarations by two Department attorneys,3 and in a Vaughn index.4 The index, a ______ now standard tool conceived by the District of Columbia circuit to facilitate resolution of FOIA disputes, provides a brief description of each of the 191 withheld documents and identifies the exemptions assertedly permitting their nondisclosure. In ruling on the government's motion for summary judgment, the district court found that these materials adequately justified both the scope of the search and the withholdings. Its decision can be broken down into four separate conclusions: (1) the search itself was done reasonably, and the documents produced fulfilled the government's obligation under FOIA; (2) the Vaughn ______ index generally was sufficiently detailed to permit the court to ____________________ 2 The new policy emphasized a commitment to openness, and urged agencies to withhold documents that technically might fall within an exemption only when "the agency reasonably foresees that disclosure would be harmful to an interest protected by that exemption." 3 A 12-page declaration was submitted by John F. Boseker (the "Boseker Declaration"), an attorney advisor with the EOUSA, whose responsibilities include the review of requests made under FOIA and the Privacy Act, 5 U.S.C. 552a. Bonnie L. Gay, attorney in charge of the Executive Office's FOIA/Privacy Act Unit, provided supplemental information in a six-page declaration. 4 The name of the index is derived from the seminal case, Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973). ______ _____ -4- review the Department's claims of exemption; (3) the index and supporting affidavits specifically supported the exemptions claimed by the Department to justify withholding documents; and (4) discovery was unwarranted because the government's showing was adequate, and discovery would be unlikely to result in a different outcome while placing a substantial burden on the Department and the court. The Church now claims that the district court abused its discretion in refusing discovery and awarding summary judgment based on the submitted declarations and Vaughn index, asserting ______ that these items were too vague and conclusory to support the exemption claims. The Church also challenges the reasonableness of the search conducted by the Department, claiming that the search was too narrowly circumscribed. Our review of the district court's determination that the government was entitled to summary judgment based on its index and affidavits is de novo. See Licari v. Ferruzzi, 22 F.3d 344, __ ____ ___ ______ ________ 346-47 (1st Cir. 1994) (summary judgment standard); Wiener v. ______ FBI, 943 F.2d 972, 978 (9th Cir. 1991) (FOIA standard). Our ___ discussion begins with a review of general FOIA standards and principles. II. The Freedom of Information Act ______________________________ The FOIA requires government agencies to "make . . . promptly available" to any person, upon request, whatever "records" the agency possesses unless those "records" fall within -5- any of nine listed exemptions. 5 U.S.C. 552(a)(3), (b).5 The statute's basic purpose is "to ensure an informed citizenry, vital to the functioning of a democratic society," NLRB v. ____ Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978), or, stated __________________________ more specifically, "`to open agency action to the light of public scrutiny,'" Department of Justice v. Reporters Committee, 489 ______________________ ___________________ U.S. 749, 772 (1989) (citation omitted). The policy underlying FOIA is thus one of broad disclosure, and the government must supply any information requested by any individual unless it determines that a specific exemption, narrowly construed, applies. Aronson v. IRS, 973 F.2d 962, 966 (1st Cir. 1992). The _______ ___ government bears the burden of demonstrating the applicability of a claimed exemption, Maynard v. CIA, 986 F.2d 547, 557-58 (1st _______ ___ Cir. 1993); In Re Department of Justice, 999 F.2d 1302, 1305 (8th ___________________________ Cir. 1993) (en banc), and the district court must determine de __ novo whether the queried agency has met this burden, Aronson, 973 ____ _______ F.2d at 966. FOIA also provides for partial disclosure of documents that contain some exempted information, mandating that "all reasonably segregable, non-exempt portions of any agency records must, after deletion of the exempt material, be disclosed to a requester, 5 U.S.C. 552(b)," Wightman v. Bureau of Alcohol, Tobacco & ________ ________________________________ Firearms, 755 F.2d 979, 983 (1st Cir. 1985). In determining ________ segregability, "courts must construe the exemptions narrowly with ____________________ 5 The exemptions protect, inter alia, privacy and _____ ____ confidentiality interests, the secrecy of grand jury proceedings, and matters covered by the attorney-client privilege. -6- the emphasis on disclosure," id.. An agency may withhold non- ___ exempt information only if it "`is so interspersed with exempt material that separation by the agency, and policing of this by the courts would impose an inordinate burden,'" Id. (quoting Lead ___ ____ Industries Ass'n v. Occupational Safety and Health Admin., 610 ________________ _______________________________________ F.2d 70, 86 (2d Cir. 1979)). See also Krikorian v. Department of ___ ____ _________ _____________ State, 984 F.2d 461, 466 (D.C. Cir. 1993) ("`non-exempt portions _____ of a document must be disclosed unless they are inextricably intertwined with exempt portions'" (citation omitted)). To assure the broadest possible disclosure, courts often direct a government agency seeking to withhold documents to supply the opposing party and the court with a Vaughn index, ______ which includes a general description of each document sought by the FOIA requester and explains the agency's justification for nondisclosure of each individual document or portion of a document. Maynard, 986 F.2d at 556-57; Vaughn, 484 F.2d at 823- _______ ______ 28. Such an index is viewed as necessary to protect the adversary process in a FOIA case, in which only the party opposing disclosure will have access to all the facts. Wiener, ______ 943 F.2d at 977; Vaughn, 484 F.2d at 823-28. We previously have ______ identified a trio of functions served by the index: [I]t forces the government to analyze carefully any material withheld, it enables the trial court to fulfill its duty of ruling on the applicability of the exemption, and it enables the adversary system to operate by giving the requester as much information as possible, on the basis of which he can present his case to the trial court. -7- Maynard, 986 F.2d at 557 (quoting Keys v. United States Dept. of _______ ____ _______________________ Justice, 830 F.2d 337, 349 (D.C. Cir. 1987) (quoting Lykins v. _______ ______ United States Dept. of Justice, 725 F.2d 1455, 1463 (D.C. Cir. _______________________________ 1984))). See also In Re Department of Justice, 999 F.2d at 1305. ___ ____ ___________________________ Although FOIA's primary thrust is to promote openness, the Supreme Court also has recognized a Congressional intent "to provide `workable rules' of FOIA disclosure," Landano, 113 S. Ct. _______ at 2023 (citing cases). To that end, the Court has interpreted the statute as permitting agencies to exempt certain records on a categorical basis, rather than requiring a document-by-document consideration. In Reporters Committee, for example, the Court ____________________ concluded that criminal "rap sheet" information is categorically exempt from disclosure because the release of such information invariably constitutes an unwarranted invasion of privacy.6 489 U.S. at 780. The Court has reached a similar conclusion with respect to the exemption of material furnished by sources, see ___ Landano, 113 S. Ct. at 2022, holding that "when certain _______ circumstances characteristically support an inference of confidentiality," the Government may justify nondisclosure without detailing the circumstances surrounding a particular interview.7 ____________________ 6 The Court in Reporters Committee was construing FOIA ____________________ Exemption 7(C), which allows the Government to withhold law enforcement records or information whose production "could reasonably be expected to constitute an unwarranted invasion of personal privacy," 5 U.S.C. 552(b)(7)(C). 7 Landano concerned Exemption 7(D), which permits the _______ Government to withhold -8- FOIA's general philosophy remains, however, one of "`full agency disclosure,'" Aronson, 973 F.2d at 966 (quoting Department _______ __________ of Air Force v. Rose, 425 U.S. 352, 360 (1976) (quoting S. Rep. ____________ ____ No. 813, 89th Cong., 1st Sess. 3 (1965))), and courts have the obligation to interpret its reach "generously, in order to achieve the FOIA's basic aim: sunlight," id.. See also Landano, ___ ___ ____ _______ 113 F.2d at 2024. What usually remains unspoken, but is a reality often affecting attitudes and conduct implementing FOIA, is the very considerable burden laid on both the government and the trial court in searching files for multitudinous documents, analyzing them, and justifying not only any exclusion relied upon but any refusal to redact and segregate the disclosable from the residually privileged. This burden often is exacerbated by the apparent lack of any perceptible public purpose on the part of the requester. In such a case, already burdened courts and agencies may deem FOIA's dedication to the importance of "sunlight" as unrealistic. We thoroughly appreciate this kind of tension. We are dealing with a law that complicates the task of governing. Yet, its goals are worthy, and we are bound to honor ____________________ records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information . . . could reasonably be expected to disclose the identity of a confidential source, . . . , and, in the case of a record or information compiled by criminal law enforcement authority in the course of a criminal investigation . . . , information furnished by a confidential source. 552(b)(7)(D). -9- both its letter and its spirit. Moreover, as in any "hard case," we must constantly remind ourselves that our decision establishes principles that must be generally applicable -- both to requests that seem merely annoying and to those that may reflect the most vital concerns of citizens. Cf. Senate of Puerto Rico v. ___ _______________________ Department of Justice, 823 F.2d 574, 587 (D.C. Cir. 1987) ("The _____________________ costs must be borne . . . if the congressional policy embodied in FOIA is to be well served.") III. Did the Government Meet Its Burden? ___________________________________ A. Adequacy of the Search ______________________ When the Church submitted its request for documents in September 1988, it triggered a responsibility on the part of the Department of Justice to do a reasonably thorough search of its records and to turn over all responsive materials except those for which it could prove an exemption from disclosure. Maynard, _______ 986 F.2d at 559. The Church has two primary complaints about what transpired. First, it claims that the search was too narrow, and, consequently, that more responsive documents should have been found. Second, it claims that the Department has failed to meet its burden of proving that all of the withheld materials are exempt from disclosure. Like the district court, the parties break this issue into three components: (1) is the index generally too vague? (2) are the specific claims of exemption supportable? (3) did the court abuse its discretion in denying discovery? -10- We readily can dispose of the first issue. As we have noted, the adequacy of an agency's search for documents under FOIA is judged by a standard of reasonableness. Maynard, 986 _______ F.2d at 559. "The crucial issue is not whether relevant documents might exist, but whether the agency's search was `reasonably calculated to discover the requested documents.'" Id. (citation omitted). The district court properly identified ___ and applied this standard here, finding that the search was adequate based on the details provided in the Stawicki affidavit. Ms. Stawicki stated that she directed the second search for documents conducted after the Church filed suit, that the search was conducted through a computerized record system whose capabilities she described, that a manual search would be impossible, and that she personally searched the computer files for specific documents responsive to the Church's request. The court found that this information, in the absence of any evidence of bad faith, was sufficient. We agree, and thus affirm its conclusion.8 The Church's second complaint is more compelling. Although implicitly contending that the government has withheld an excessive number of documents, the Church at this juncture really is making a more limited argument. It maintains that the affidavits and Vaughn index were too vague and conclusory to ______ ____________________ 8 The Church made two specific arguments regarding the inadequacy of the Department's search, neither of which were raised before the district court. We therefore need not, and do not, address them here. See Watkins v. Ponte, 987 F.2d 27, 29 ___ _______ _____ (1st Cir. 1993). -11- permit it or the district court meaningfully to evaluate the Department's exemption claims, and the Church therefore asserts that it was entitled to more information, either through discovery or a revised index, before the summary judgment motion properly could be decided. B. General Inadequacies of the Index and Affidavits ________________________________________________ We have studied carefully the affidavits and index, considering separately each of the 191 entries, and are persuaded that, with respect to many documents, the government has failed to support adequately its claim of exemption.9 Each entry contains four types of information: (1) the number of pages in the document; (2) a brief description of the nature of the document; (3) the content of the withheld portions; and (4) the statutory exemption numbers claimed to support nondisclosure. Document No. 4, for example, is entered in the index as follows: [Pages] [Description] [Content/withheld portions] [Exemptions] 21 Typed AUSA notes Attorney work product b(5) (undated) document marshalling facts b(7)(D) and sources of information b(7)(C) created in contemplation of litigation. Confidentiality referenced throughout document. References Third Party Individuals throughout. (WIF [withheld in full]) ____________________ 9 Some of these documents have been released in whole or in part as a result of the administration's openness policy. See ___ supra note 2. The government identifies these documents as Nos. _____ 58, 63-66, 69, 71-73, 77-81, 84-86 and 88-90. -12- In our view, the descriptions for many of the documents are too cursory to permit debate, or an informed judgment, about whether they properly may be withheld. As with Document No. 4, multiple exemption numbers are noted beside many entries, without any correlation between a particular exemption and the sections of the document to which it relates. Most documents, including lengthy ones like No. 4, are withheld in their entirety, without any reference to segregability. The declarations submitted with the index contain only general and conclusory assertions concerning the documents. For example, with respect to documents claimed to be exempt under the privacy provision, Exemption 7(C), see supra note 6, the Boseker ___ _____ declaration first describes the types of information to which the exemption applies,10 and then states categorically that "there ____________________ 10 Paragraph 15 of the declaration states: This exemption applies to withhold identities of and personal information about third party individuals, release of which could subject such persons to unwanted and even unlawful efforts to gain further access to them or personal information, harassment or harm, exposure to unwanted and/or derogatory publicity and inferences arising from their connection to the case, all to their detriment. This exemption also applies to withhold identities of individuals such as special agents, government employees, and local law enforcement personnel who participated in the investigation and prosecution of the referenced cases. Individual duties and assignments are not public and such publicity as would likely arise from disclosure would seriously impede, if not totally jeopardize law enforcement effectiveness in subsequent cases, even subjecting such individuals to harassment or harm. These persons have protected privacy interests in the conduct of law enforcement investigations. -13- was no public interest in the release of this information nor any interest which would counterbalance the individual's privacy in the information withheld under this exemption." The declaration states that each document was evaluated for segregability, and that, where a document was withheld in its entirety, "EOUSA determined that no meaningful portions could reasonably be released without destroying the integrity of such document as a whole." The Gay declaration supports the privacy withholdings by emphasizing that the Church's reported policy of retribution against its perceived enemies provided the basis for the Department's substantial concern about protecting the personal privacy of government employees and third party contacts. Gay repeats essentially the same general conclusion about segregability offered by Boseker: "There are no segregable portions which have not been released which could be released without creating a substantial risk of disclosing information protected from disclosure." These declarations are written too generally to supplement the index in any meaningful way. They treat the documents within various exemption categories as a group, without referring to specific documents, and make broad statements essentially explaining that the documents were withheld because they contain the type of information generally protected by that particular exemption. The statements regarding segregability are wholly conclusory, providing no information that would enable a -14- requester to evaluate the agency's decisions. Thus, none of the functions of the index identified in Maynard are served: the _______ declarations do not demonstrate careful analysis of each document by the government; the court has not been assisted in its duty of ruling on the applicability of an exemption; and the adversary system has not been visibly strengthened. See supra p. 7. ___ _____ Although "[t]here is no set formula for a Vaughn index," ______ Hinton v. Department of Justice, 844 F.2d 126, 129 (3d Cir. ______ ______________________ 1988), to serve its purpose the listing "`must supply "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,"'" Krikorian, 984 at 467 (citations omitted) _________________ _________ (emphasis in original). It is "the function, not the form, which is important," Hinton, 844 F.2d at 129, and the question is ______ whether the particular taxonomy employed "afford[s] the FOIA requester a meaningful opportunity to contest, and the district court an adequate foundation to review, the soundness of the withholding," Wiener, 943 F.2d at 977-78. ______ The lack of justification for withholding lengthy documents in their entirety is the most pervasive problem with the index. Upon encountering similarly imprecise indices, the District of Columbia Circuit recently noted, in words equally apt here, that the materials submitted "[we]re written in terms of documents, not information, but `[t]he focus in the FOIA is information, not documents, and an agency cannot justify withholding an -15- entire document simply by showing that it contains some exempt material.'" Krikorian, 984 F.2d at 467 (citation omitted). We think it _________ fruitful to examine closely several entries as a way of demonstrating the index's deficiencies: * Document No. 5 is a 32-page declaration, with four pages of supporting exhibits. The contents column contains the following information: Individual third party declaration of and concerning relationship with Church. Not evidenced as admitted into court or on public record, so deemed confidential statement. (WIF) The entire document is withheld pursuant to Exemption 7(C), the personal privacy exemption. The entry fails, however, to indicate why privacy concerns could not be met simply by deleting identifying information. Without some further elaboration of the document's contents, the Church is unable to dispute the claim that no portion of the 36 pages is segregable.11 *Document No. 6 is an 11-page affidavit from a third party containing the following information: ____________________ 11 The government states in its brief with respect to this document that "the EOUSA could properly determine that even partial disclosure might well allow plaintiffs to identify the declarant through the nature of the information disclosed." The government unquestionably could make such a determination, but it needs to provide more than this unsupported conclusion to justify withholding the whole document. Is the document full of personal anecdotes, whose perspective would tend to reveal the declarant, thus supporting this conclusion? Or does the document simply give one individual's description of the way the Church generally treats members, and thus arguably include material that could be segregated from the identifying information? -16- Individual third party affidavit concerning Church and other matters. Not evidenced as admitted into court or on public record, so deemed confidential. (WIF) The entire document is withheld pursuant to Exemption 7(C), as well as under the Privacy Act, 5 U.S.C. 552a(j)(2).12 Again, no attention is given to segregability. What were the "other matters" described? This entry unquestionably fails to supply the Church with enough information "`to permit [it] to present its case effectively,'" Orion Research Inc. v. EPA, 615 F.2d 551, ___________________ ___ 553 (1st Cir. 1980) (citation omitted), the function the index was conceived to perform. *Document No. 20 is a 49-page deposition transcript described as follows: Transcript of deposition of third party individual taken by private reporting service in Commonwealth of Mass. (WIF) The entire document is withheld pursuant to Exemption 7(C), yet nothing in the entry indicates why the privacy interest at stake could not be protected simply by redacting identifying information. ____________________ 12 Section (j)(2) exempts from mandatory disclosure records maintained by an agency that performs as its principal function any activity pertaining to the enforcement of criminal laws. Section (k)(2) of the Act similarly exempts certain investigatory materials compiled for law enforcement purposes in other than criminal matters. Although the Boseker Declaration states that all of the relevant records in this case were exempt under one or the other of the Privacy Act provisions, only certain of the entries include (j)(2) as a justification for nondisclosure. See, e.g., Document Nos. 6, 11, 13, 15-19, 43, 46, 53, 55, 56, ___ ____ 58, 60-62, 75, 76, 95, 109, 111, 115-121, 123, 125, 127, 146, 185, 187, 190, 191. -17- *Document No. 96 is a six-page deposition summary, withheld pursuant to Exemption 7(C), and described only as a "[s]ummary of deposition of third party individual." Segregability once again is not addressed. The entry for Document No. 104, also a six- page deposition summary, is similarly deficient. *Document No. 141 is a 29-page declaration withheld pursuant to 7(C), described as follows: Third party individual/source declaration. Not public record or waiver of confidentiality. (WIF) As with other entries, there is no explanation about why the deletion of identifying information would not suffice to meet privacy concerns. The district court concluded that the index, as supplemented by the Boseker and Gay declarations, fulfilled the government's obligation to supply "reasoned justification" for its withholdings, and it noted that the Church had presented no evidence suggesting bad faith in the government's response. The court observed that the government had supported the individual withholdings with greater specificity than this court had ratified in Maynard. _______ In our view, however, the government's showing fell short of providing the Church with a "`meaningful opportunity,'" see ___ Wiener, 943 F.2d at 977, to challenge a substantial number of its ______ unilateral decisions to withhold documents, thus depriving the district court of "the controverting illumination that would ordinarily accompany a request to review a lower court's factual determination," Vaughn, 484 F.2d at 825. We disagree with the ______ -18- district court that the showing exceeded that affirmed in Maynard. In that case, see 986 F.2d at 557-59, the FBI produced _______ ___ the withheld documents in redacted form, withholding only those portions that it claimed were exempt. Next to each portion withheld, the FBI provided a coded reference to exemption claims specifically identified in a separately filed declaration. The government also provided copies of the unredacted documents for the court's in camera review. Unlike this case, therefore, the __ ______ court in Maynard was able to perform a close review of individual _______ documents. The government suggests that, in the absence of any legitimate question of good faith, its repeated review of the documents, each time leading to a conclusion that no significant non-exempt segments could be released, is sufficient to justify its withholding decisions and failure to segregate. It claims that the only meaningful way to test the Department's determinations would have been through in camera review, which __ ______ the Church did not request. A lack of bad faith on the part of the government, however, does not relieve it of its obligation in the first instance to provide enough information to enable the adversary process to operate in FOIA cases. The presumption of good faith accorded to agency affidavits, see Carney v. Department of Justice, 19 F.3d ___ ______ _____________________ 807, 812 (2d Cir. 1994), petition for cert. filed, 63 U.S.L.W. _________________________ 3009 (U.S. June 21, 1994) (No. 93-2141); Maynard, 986 F.2d at _______ 560, can only be applicable when the agency has provided a -19- reasonably detailed explanation for its withholdings, see ___ Maynard, 986 F.2d at 560. A court may not without good reason _______ second-guess an agency's explanation, but it also cannot discharge its de novo review obligation unless that explanation __ ____ is sufficiently specific. Additionally, the fact that the Church did not request in __ camera review in no way lessens the government's burden to make ______ an adequate showing. FOIA provides for in camera review, at the __ ______ district court's discretion, if the court finds the agency's materials in support of exemption to be too generalized. See id. ___ ___ at 557. In other words, in camera review is a tool available to __ ______ a court when the government's showing otherwise is inadequate to satisfy the burden of proving the exempt status of withheld documents. Id. at 557-58. The Church had no obligation to ___ request such a review. We emphasize that the index examples described above are merely illustrative, and that numerous other entries suffer from similar imprecision. We by no means suggest, however, that every entry is vulnerable. The index is notably inadequate with respect to lengthier documents, where the lack of correlation between the exemptions claimed and specific portions of the document, and the failure to address segregability, combine to make the government's showing particularly vague. In contrast, a number of documents consist of a single page. It is fairly inferable from the entries for many of these that there is no meaningful segregable non-exempt content, and we see nothing to -20- be gained from requiring more detail. See, e.g., Document Nos. ___ ____ 8, 9, 48, 56, 59, 127. Similarly, where multiple exemptions are claimed for these short documents, the lack of correlation typically is not a problem. The government makes two points regarding the adequacy of its declarations and Vaughn index that warrant response. First, ______ it asserts that the degree of detail required in an index depends upon the nature of the documents at issue and the particular exemption asserted. We agree that different approaches apply to the various statutory exemptions, and we will discuss the specific exemptions claimed by the government in the next section. At this juncture, we note simply that a categorical approach to nondisclosure is permissible only when the government can establish that, in every case, a particular type of information may be withheld regardless of the specific surrounding cirumstances. See supra p. 8. ___ _____ The government also observes that courts have approved indices with less detail where the records at issue are voluminous, citing Meeropol v. Meese, 790 F.2d 942, 956-57 (D.C. ________ _____ Cir. 1986). In Meeropol, government agencies retrieved ________ approximately 500,000 pages of records and released approximately 200,000 as a result of what the court described as perhaps "the most demanding FOIA request ever filed," id. at 951. Both the ___ search and the methods used to evalute the search in that case were extraordinary, and, in our view, do not support the -21- sufficiency of a sketchy index in this case.13 Giving full weight to the concern that the government should not be subjected to unrealistically exhaustive labors, we nevertheless are convinced that the task of reconsidering the 191 documents, adding meaningful detail or explanation where necessary, would not pose an unreasonable burden on the government. Indeed, including this information at the outset would have required negligible incremental effort. Moreover, even when generic exemptions are appropriate, the Supreme Court contemplates that the government provide meaningful detail in support of its withholdings. In Landano, the Court _______ rejected the government's argument that a source should be presumed confidential within the meaning of Exemption 7(D) whenever the source provides information to the FBI in the course of a criminal investigation. It held, however, that the inference could be supported by reference to more narrowly defined generic circumstances. For example, it would be reasonable to infer that paid informants normally expect their cooperation with the FBI to be kept confidential. Similarly, the ____________________ 13 The government's other citation for this point, Weisberg ________ v. Department of Justice, 745 F.2d 1476, 1483 (D.C. Cir. 1984), _____________________ also involved a tremendous search, resulting in disclosure of approximately 60,000 pages of documents. The district court in that case ordered preparation of a Vaughn index of every two ______ hundredth page of responsive material, a supplement to that index, and in camera submission of a number of documents wihheld __ ______ in their entirety. Id. at 1489-90. The circuit approved the ___ sampling procedure because the number of documents was so great and "it would not realistically be possible to review each and every one." Id. at 1490. ___ -22- character of the crime at issue or the source's relation to the crime could support such an inference. It is not enough, however, for the government simply to state blandly that the source's relationship to the crime permits an inference of confidentiality. Rather, the government has an obligation to spell out that relationship: [W]hen a document containing confidential source information is requested, it generally will be possible to establish factors such as the nature of the crime that was investigated and the source's relation to it. Armed with this information, the requester will have a more realistic opportunity to develop an argument that the circumstances do not support an inference of confidentiality. Landano, 113 S. Ct. at 2024. _______ Of course, as the Court acknowledged in the next sentence of this passage from Landano, the government is not expected to _______ provide so much detail in its supporting materials that it risks compromising the very interests it is seeking to protect. The agency may request in camera review as a way of demonstrating __ ______ that no further specificity should be required, and reviewing courts should consider carefully whether such a step is feasible and appropriate. As much as possible should be done openly, however, keeping in mind the goal of advancing adversarial testing of agency decisions. See Wiener, 943 F.2d at 979 ___ ______ ("Unless the agency discloses `as much information as possible without thwarting the [claimed] exemption's purpose . . . , the adversarialprocessisunnecessarilycompromised."(citationomitted)). We strongly believe that there are meaningful additions that could be made to the Vaughn index in this case without ______ -23- jeopardizing the interests at stake. In the next section, which discusses the specific exemptions invoked by the Department, we note some particular suggestions for improvement. C. Specific Exemptions ___________________ The Department invoked six different FOIA exemptions, alone or in combination, in support of its withholdings. On appeal, the Church does not challenge the government's use of either Exemption 2, which protects from disclosure information related solely to the internal personnel rules and practices of an agency, see 5 U.S.C. 552(b)(2), or Exemption 7(F), which ___ provides for withholding of law enforcement information that "could reasonably be expected to endanger the life or physical safety of any individual," 5 U.S.C. 552(b)(7)(F). (1) Exemption (b)(3) and Fed. R. Crim. P. 6(e). FOIA ______________________________________________ Exemption 3, 5 U.S.C. 552(b)(3), allows the withholding of materials that are "specifically exempted from disclosure by statute . . . ." The parties agree that the Department properly invoked this provision to withhold grand jury materials made exempt from disclosure by Rule 6(e) of the Federal Rules of Criminal Procedure. See Fund for Constitutional Gov't v. ___ ________________________________ National Archives and Records Serv., 656 F.2d 856, 867 (D.C. Cir. ___________________________________ 1981). The Church complains, however, that it is impossible to determine from the Vaughn index and affidavits whether all of the ______ documents for which the Department asserted this privilege genuinely constitute "grand jury" material. -24- As the district court recognized, the scope of secrecy afforded grand jury materials is "necessarily broad." Id. at ___ 869. It encompasses not only the direct revelation of grand jury transcripts but also the disclosure of information which would reveal "the identities of witnesses or jurors, the substance of testimony, the strategy or direction of the investigation, the deliberations or questions of the jurors, and the like." Id. (quoting SEC v. Dresser Indus., Inc., 628 F.2d 1368, 1382 ___ ___ _____________________ (D.C. Cir. 1980)). In addition, unlike actions under other FOIA exemptions, agency decisions to withhold materials under Exemption 3 are entitled to some deference. We have observed that "once a court determines that the statute in question is an Exemption 3 statute, and that the information requested at least arguably falls within the statute, FOIA de novo review normally __ ____ ends," Maynard, 986 F.2d at 554 (quoting Aronson, 973 F.2d at _______ _______ 965, 967). We are satisfied that, under this standard, documents identified as grand jury exhibits, and whose contents are testimonial in nature or otherwise directly associated with the grand jury process, such as affidavits and deposition transcripts, ordinarily may be withheld simply on the basis of their status as exhibits.14 We distinguish such materials from business records or similar documents "created for purposes independent of grand jury investigations, which have legitimate ____________________ 14 This would include, inter alia, document Nos. 2 (grand _____ ____ jury list of documents), 3 (exhibits list), 130-33, 142, 148, 153, 163, 172, 173, 181, 182, 184, 187, 188-90. -25- uses unrelated to the substance of the grand jury proceedings," United States v. Dynavac, Inc., 6 F.3d 1407, 1412 (9th Cir. ______________ ______________ 1993). Although these documents, too, may be subject to nondisclosure under Exemption 3 if they are grand jury exhibits, the government needs to provide some basis for a claim that releasing them will implicate the secrecy concerns protected by Rule 6(e).15 The requirement that the government explain the basis for its conclusion that Rule 6(e), and thus Exemption 3, at least arguably permits withholding of certain documents applies a _ fortiori to materials not specifically identified as grand jury ________ exhibits, but which simply were located in grand jury files. In this case, for example, Document Nos. 164, 166-170, 174-180 and 183 are labelled as "Grand Jury Materials," and most were found in a file marked "Grand Jury."16 There is no indication, ____________________ 15 We think it reasonable for an agency to withhold any document containing a grand jury exhibit sticker or that is otherwise explicitly identified on its face as a grand jury exhibit, as release of such documents reasonably could be viewed as revealing the focus of the grand jury investigation. See Fund ___ ____ for Constitutional Gov't v. National Archives and Records Serv., ________________________ ___________________________________ 656 F.2d 856, 869 (D.C. Cir. 1981) (information "identifying documents considered by the grand jury . . . falls within the broad reach of grand jury secrecy . . . ."). See, e.g., Document ___ ____ Nos. 35, 52. Whether some portion of the document is segregable, however, also needs to be considered and addressed. 16 The inadequacy of the Vaughn index is well illustrated by ______ the entries for Document Nos. 178 and 179. Both documents are identified as one-page declarations, with 20-page attachments. No. 178 is described as originating "from file marked `Gr |