     07-1384-cv
     Associated Press v. United States Department of Justice


 1                              UNITED STATES COURT OF APPEALS
 2
 3                                      FOR THE SECOND CIRCUIT
 4
 5
 6
 7                                         August Term, 2008
 8
 9   (Argued: Oct. 24, 2008                                             Decided: December 1, 2008)
10
11                                       Docket No. 07-1384-cv
12
13
14                                         ASSOCIATED PRESS,
15
16                                                                                Plaintiff-Appellant,
17
18                                                –v.–
19
20          UNITED STATES DEPARTMENT OF JUSTICE and its component, OFFICE OF THE PARDON
21                                         ATTORNEY ,
22
23                                                                               Defendant-Appellee.
24
25
26
27   Before:
28                  WESLEY and HALL, Circuit Judges, and OBERDORFER, District Judge.*
29
30          Appeal from a Memorandum and Order of the United States District Court for the
31   Southern District of New York (Preska, J.), entered on March 8, 2007, dismissing appellant’s
32   complaint under the Freedom of Information Act, 5 U.S.C. § 552(a)(4)(B), and granting
33   summary judgment in favor of the defendant-appellee.
34
35             AFFIRMED .
36
37


        *
         The Honorable Louis F. Oberdorfer, United States District Court for the District of
     Columbia, sitting by designation.

                                                    1
 1                   DAVID A. SCHULZ (Adam J. Rappaport, on the brief), Levine Sullivan Koch &
 2                         Schulz L.L.P., New York, New York (David H. Tomlin, Associated Press,
 3                         New York, New York, of counsel), for Plaintiff-Appellant.
 4
 5                   ROSS E. MORRISON , Assistant United States Attorney (Sarah S. Normand,
 6                         Assistant United States Attorney, of counsel), for Michael J. Garcia,
 7                         United States Attorney for the Southern District of New York, New York,
 8                         New York, for Defendant-Appellee.
 9
10
11
12   PER CURIAM :

13           Appellant, Associated Press (“AP”), appeals from an order of the United States District

14   Court for the Southern District of New York (Preska, J.), dismissing its Freedom of Information

15   Act (“FOIA”), 5 U.S.C. § 552(a)(4)(B), complaint which alleged that the Department of Justice

16   (“DOJ”) improperly withheld the commutation petition filed by John Walker Lindh, and granting

17   the DOJ’s motion for summary judgment. We find that Lindh’s petition for commutation is

18   exempted from disclosure pursuant to Exemptions 6 and 7(C) of FOIA and affirm the judgment

19   of the district court.

20                                           BACKGROUND

21           In January of 2006, AP submitted a FOIA request to the DOJ, Office of the Pardon

22   Attorney (“OPA”), for any petitions sent by John Walker Lindh to OPA seeking a reduction in

23   his twenty-year prison sentence.1 OPA denied the request, responding that the petition was

24   exempt from disclosure pursuant to Exemptions 6 and 7(C) of FOIA. After the DOJ’s Office of

25   Information Privacy denied its administrative appeal, AP commenced this action, arguing that the

26   FOIA privacy exemptions do not apply to Lindh’s petition because the public interest in


        1
         Lindh, the so-called “American Taliban,” was sentenced in 2002 upon his plea of guilty to
     various crimes, including aiding the Taliban in Afghanistan.

                                                     2
 1   understanding the circumstances surrounding his detention, plea, and conviction outweighs the

 2   importance of protecting any private information that may be contained in his petition. After

 3   ordering the government to submit a supplemental affidavit or other additional information to

 4   facilitate the court’s review, and after receiving the DOJ’s Supplemental Declaration executed on

 5   November 22, 2006, the district court granted summary judgment in favor of the DOJ. The

 6   district court found that the government had met its burden of showing that Lindh’s privacy

 7   interest in the petition’s contents outweigh any public interest served by disclosure and, thus, that

 8   the two FOIA exemptions apply. Associated Press v. U.S. Dep’t of Justice, No. 06 Civ. 1758,

 9   2007 WL 737476, at *7-8 (S.D.N.Y. Mar. 7, 2007).

10                                             DISCUSSION

11          FOIA was enacted for the purpose of ensuring “an informed citizenry,” and “hold[ing] the

12   governors accountable to the governed.” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214,

13   242 (1978). The statute requires federal agencies to make information available to the public and

14   sets out the procedures by which requests for information may be made. 5 U.S.C. § 552(a).

15   FOIA seeks to implement “a general philosophy of full agency disclosure.” Dep’t of the Air

16   Force v. Rose, 425 U.S. 352, 360 (1976) (quoting S. REP. NO . 813, 89th Cong., 1st Sess., 3

17   (1965)). It “calls for broad disclosure of Government records,” U.S. Dep’t of Justice v. Julian,

18   486 U.S. 1, 8 (1988) (internal quotation marks omitted), while maintaining a balance between

19   “the public’s right to know and the government’s legitimate interest in keeping certain

20   information confidential.” Center for Nat’l Sec. Studies v. U.S. Dep’t of Justice, 331 F.3d 918,

21   925 (D.C. Cir. 2003) (citing John Doe Agency v. John Doe Corp., 493 U.S. 146, 152 (1989)).

22          As such, the statute provides for nine exemptions from the general rule of disclosure.


                                                       3
 1   Exemptions 6 and 7(C) are aimed at protecting the privacy of personal information contained in

 2   government records. Exemption 6 protects “personnel and medical files and similar files the

 3   disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” 5

 4   U.S.C. § 552(b)(6). Exemption 7(C) protects records compiled for law enforcement purposes “to

 5   the extent that the production of such . . . information . . . could reasonably be expected to

 6   constitute an unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C). As the

 7   statutory language makes clear, the standard for evaluating the privacy interests implicated in

 8   records compiled for law enforcement purposes under Exemption 7(C) is “somewhat broader”

 9   than that applicable under Exemption 6 to personnel, medical, or other files. U.S. Dep’t of

10   Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 756 (1989). The burden is

11   placed on the withholding agency to show that any withheld documents fall within an exemption

12   of FOIA. Carney v. U.S. Dep’t of Justice, 19 F.3d 807, 812 (2d Cir. 1994). Reasonably detailed

13   affidavits or declarations explaining why any withheld documents fall within a particular

14   exemption “are sufficient to sustain the agency’s burden.” Id.

15          AP concedes that the government has met the threshold requirements of Exemptions 6

16   and 7(C). Thus, we need only address whether Lindh’s privacy interest outweighs any public

17   interest that would be served by disclosure of the documents.

18          The privacy interests protected by the exemptions to FOIA are broadly construed. See

19   Reporters Comm., 489 U.S. at 763. Specifically, they embody the right of individuals “to

20   determine for themselves when, how, and to what extent information about them is

21   communicated to others.” Id. at 764 n.16 (internal quotation marks omitted). This protection

22   extends even to information previously made public. Id. at 763-64. Personal information,


                                                       4
 1   including a citizen’s name, address, and criminal history, has been found to implicate a privacy

 2   interest cognizable under the FOIA exemptions. See, e.g., U.S. Dep’t of Def. v. Fed. Labor

 3   Relations Auth., 510 U.S. 487, 497 (1994) (union employees’ names and home addresses);

 4   Reporters Comm., 489 U.S. at 780 (information contained in FBI rap sheets); Rose, 425 U.S. at

 5   358 (cadets’ names and other identifying information in disciplinary files); Wood v. FBI, 432

 6   F.3d 78, 80-81 (2d Cir. 2005) (names and other identifying information about FBI agents

 7   responsible for conducting an administrative investigation of agent misconduct); Judicial Watch,

 8   Inc. v. Dep’t of Justice, 365 F.3d 1108, 1109-10 (D.C. Cir. 2004) (personal information included

 9   in petitions for pardons).

10          Lindh’s privacy interest in portions of his petition is clearly one cognizable under the

11   exemptions of FOIA. A Petition for Commutation of Sentence requires the applicant to provide

12   his name, social security number, date and place of birth, criminal record, conviction

13   information, information about any post-conviction relief sought, a detailed account of the

14   circumstances surrounding the offense, and a detailed explanation of the reasons clemency

15   should be granted. The DOJ’s Declaration of May 26, 2006, entitled to “a presumption of good

16   faith,” Carney, 19 F.3d at 812 (quoting SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C.

17   Cir. 1991)), confirms that Lindh’s petition contains such personal information. Declaration of

18   Samuel T. Morison at ¶ 5, Associated Press v. U.S. Dep’t of Justice, 2007 WL 737476, No. 06

19   Civ. 1758 (S.D.N.Y. May 26, 2006). Thus, the government has met its burden of showing that

20   the withheld documents contain the type of personal information found to be implicated by

21   FOIA’s privacy exemptions. See, e.g., Judicial Watch, 365 F.3d at 1125-26.

22          Notwithstanding a document’s private nature, FOIA may nevertheless require disclosure


                                                      5
 1   if the requestor can show that revelation of the contents of the requested document would serve

 2   the public interest. The appropriateness of disclosure turns on the relationship of the requested

 3   document to FOIA’s basic purpose of “open[ing] agency action to the light of public scrutiny.”

 4   Reporter’s Comm., 489 U.S. at 772 (quoting Rose, 425 U.S. at 372) (internal quotations omitted).

 5   The only public interest found to be relevant in FOIA balancing is “the extent to which disclosure

 6   would serve the core purpose of the FOIA, which is contribut[ing] significantly to public

 7   understanding of the operations or activities of the government.” Fed. Labor Relations Auth., 510

 8   U.S. at 495 (quoting Reporters Comm., 489 U.S. at 775) (internal quotations and emphasis

 9   omitted) (alteration in original). Essentially, the requested document must produce information

10   revealing “what . . . government is up to.” Reporters Comm., 489 U.S. at 773 (quoting EPA v.

11   Mink, 410 U.S. 73, 105 (1973)) (internal quotations and emphasis omitted). The requesting party

12   bears the burden of establishing that disclosure of personal information would serve a public

13   interest cognizable under FOIA. Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157, 172

14   (2004).

15             Here, AP has failed to demonstrate that disclosure of Lindh’s petition would serve a

16   cognizable public purpose such that it may not be withheld under the privacy exemptions. The

17   DOJ’s Supplemental Declaration states that none of the reasons Lindh poses to justify reduction

18   of his twenty-year sentence “has anything to do with any alleged Government misconduct . . . and

19   do not reveal what the ‘government is up to.’” Supplemental Declaration of Samuel T. Morison

20   at ¶ 2, Associated Press v. U.S. Dep’t of Justice, No. 06 Civ. 1758 (S.D.N.Y. Nov. 22, 2006). AP

21   has not asserted that the DOJ’s declarations were made in bad faith, and has further failed to

22   show how Lindh’s petition, containing private, personal information, would in any way shed


                                                       6
 1   light on the DOJ’s conduct. See Reporters Comm., 489 U.S. at 774-75 (finding that disclosure of

 2   an FBI rap sheet, while arguably revealing some information of interest to the public, would not

 3   serve the required FOIA public interest of revealing the government agency’s processes).

 4   Because we find that a significant privacy interest is implicated in release of Lindh’s petition, and

 5   that AP has failed to show that release of the information would shed light on the workings of

 6   government, we must conclude that the district court did not err in holding Lindh’s petition

 7   exempt from disclosure under FOIA Exemptions 6 and 7(C).2

 8          Finally, the district court did not abuse its discretion in failing to conduct an in camera

 9   review of the requested documents. Under 5 U.S.C. § 552(a)(4)(B), district courts are authorized

10   to conduct in camera review of disputed documents to determine whether the documents, in

11   whole or part, are properly withheld under a FOIA exemption. In camera review is appropriate

12   where the government seeks to exempt entire documents but provides only vague or sweeping

13   claims as to why those documents should be withheld. See Local 3, Int’l Bhd. of Elec. Workers,

14   AFL-CIO v. NLRB, 845 F.2d 1177, 1180 (2d Cir. 1988). Only if the government’s affidavits

15   make it effectively impossible for the court to conduct de novo review of the applicability of

16   FOIA exemptions is in camera review necessary. Id.; see also Donovan v. FBI, 806 F.2d 55, 59

17   (2d Cir. 1986) (stating that sufficiently detailed affidavits obviate the need for in camera review),


        2
          In so holding, we note that counsel for John Walker Lindh was contacted to ascertain
     whether Mr. Lindh would consent to the release of his petition, in whole or part, thus obviating
     the need for this appeal. Mr. Lindh’s counsel responded indicating his willingness to consent to
     release of the petition, redacted to protect any information that might compromise Lindh’s
     privacy or safety. AP and Mr. Lindh’s counsel ultimately could not reach an agreement as to the
     terms of the petition’s release, in particular, as to the redactions. Because AP is unsatisfied with
     Lindh’s offer to release the petition redacted only to the extent necessary to protect his personal
     privacy and safety, it is difficult to escape the conclusion that AP seeks release of purely private
     information.

                                                      7
 1   abrogated on other grounds by U.S. Dep’t of Justice v. Landano, 508 U.S. 165, 170 (1993).

 2   Ultimately, the decision is entrusted to the district court’s discretion. Local 3, 845 F.2d at 1180.

 3   The district court found the DOJ’s declarations in support of its refusal of AP’s FOIA claims

 4   sufficiently informative to make a determination as to the applicability of the exemptions, and,

 5   thus, did not undertake in camera review. In light of the relatively detailed nature of the

 6   declarations, we find that this was not an abuse of the district court’s discretion.

 7                                             CONCLUSION

 8          For the forgoing reasons, the district court’s order dismissing appellant’s complaint under

 9   the Freedom of Information Act, 5 U.S.C. § 552(a)(4)(B), is hereby AFFIRMED .

10




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