               Not for Publication in West's Federal Reporter

          United States Court of Appeals
                      For the First Circuit

No. 08-1703

                          TOWN OF WINTHROP,

                       Plaintiff, Appellant,

                                    v.

                FEDERAL AVIATION ADMINISTRATION,

                        Defendant, Appellee.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF MASSACHUSETTS

           [Hon. Joseph L. Tauro, U.S. District Judge]


                                 Before

                   Torruella, Stahl and Howard,
                         Circuit Judges.



     Peter L. Koff, with whom Engel & Schultz, LLP was on brief,
for appellant.
     Anton P. Giedt, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, was on brief, for
appellee.



                              May 8, 2009
          HOWARD, Circuit Judge. This appeal marks the last throes

of an extended dispute between the Town of Winthrop and the Federal

Aviation Administration regarding a proposed expansion of Logan

International Airport in Boston.      See Town of Winthrop v. Fed.

Aviation Admin., 535 F.3d 1 (1st Cir. 2008)(denying Town's petition

for review of agency's decision to authorize construction of

additional taxiway at Logan).   In the case sub judice, the Town

challenges the district court's determination that the FAA could

withhold certain documents in response to the Town's Freedom of

Information Act request.

          The Town initially brought its FOIA suit in federal

district court hoping to obtain documents pertinent to its petition

for review against the FAA, which has now been concluded.1   In that

vein, the Town sought expedited rulings so that it would be able to

incorporate any information gleaned from its FOIA request into its

opening brief in the petition for review then pending before this

court.   As a result, the parties sought -- and the district court

agreed to undertake -- an unusual procedure that yielded a prompt

ruling and the release of nine additional documents.   The Town now

claims that it did not agree to the expedited procedure employed in

the district court and that the district court's FOIA rulings were

substantively incorrect.   We affirm.




1
     In deciding the petition for review, we denied the Town's
request to supplement the administrative record with the forty-six
documents at issue in this appeal because they were the subject of
a "separate proceeding," which eventually ripened into this appeal.
Town of Winthrop, 535 F.3d at 15.

                                -2-
             This portion of the controversy began on August 2, 2007,

when the Town submitted two FOIA requests, see 5 U.S.C. § 552,

requesting FAA records relating to the contemplated expansion of

the centerfield taxiway at Logan.        On October 4, 2007, the agency

released approximately one hundred pages of records and claimed

exemptions supporting non-disclosure for several other documents.

5   U.S.C.   §552(b).    Without   taking   an   administrative   appeal,

exhaustion of which some courts require prior to filing suit,2

e.g., Ruotolo v. Dep't of Justice, Tax Div., 53 F.3d 4, 8 (2d Cir.

1996); Taylor v. Appleton, 30 F.3d 1365, 1367-68 (11th Cir. 1994);

Spannaus v. U.S. Dep't of Justice, 824 F.2d 52, 58 (D.C. Cir.

1987), the Town filed suit in the district court seeking all or a

portion of the documents the agency withheld.        The district court

held an expedited status hearing and issued an order directing the

FAA to produce a Vaughn index.3

             The parties agreed that the agency would produce the

Vaughn index, but also that the Town would first exhaust its


2
     We have suggested without deciding that exhaustion, or at
least constructive exhaustion, of administrative remedies is
required to initiate FOIA proceedings in this circuit.          See
Providence Journal Co. v. FBI, 602 F.2d 1010, 1011 (1st Cir. 1979).
Because, as explained below, the Town eventually exhausted its
administrative remedies, we need not decide whether any such
exhaustion was required in this case.
3
     A practice has developed whereby any agency claiming an
exemption under FOIA is required to furnish the requester a Vaughn
index, which requires a correlation of the information that an
agency decides to withhold with the particular FOIA exemption and
the agency's justification for withholding the document. State of
Maine v. U.S. Dep't of Interior, 298 F.3d 60, 65 (1st Cir. 2002)
(citing Maynard v. CIA, 986 F.2d 547, 556 (1st Cir. 1993)). The
index takes its name from Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir.
1973).

                                   -3-
administrative remedies before pressing its suit in the district

court.       Consequently, the Town voluntarily dismissed its suit

without prejudice and appealed administratively.                 In response, the

agency       discretionarily       released      an    additional     thirty-seven

documents      and    reaffirmed     its    decision    to   withhold   ninety-two

documents.

              Having exhausted its administrative remedies, the Town

filed    a   second    action   in    the    district    court   challenging   the

agency's final decision to withhold the ninety-two documents.                   In

particular, the Town moved for another expedited status conference

and further requested that the agency be instructed to arrive at

this conference with all of the withheld documents to facilitate

the district court's in camera inspection of the documents, should

the court agree to undertake such an inspection.                    In its request

for urgent relief, the Town stressed that it was seeking the

withheld documents because of their potential relevance to its

petition for review of the agency's airport expansion decision then

pending in this court.          The Town further noted that its opening

brief in this court was due approximately two weeks from the date

it filed this second action in the district court.

              Against this backdrop, the parties convened for a status

conference on December 12, 2007, approximately one week before the

Town was required to file its opening brief in connection with the

petition for review. Acknowledging the Town's desire for immediate

access to documents, as well as the Town’s objections to the

agency's proffered Vaughn index, the district court suggested that


                                           -4-
the parties attempt to resolve their differences over as many

documents as possible and to narrow the issues for the court to

decide.   The parties agreed to this course of action.

           Over the course of several hours, the parties reviewed

the agency's Vaughn index, with the agency lawyer augmenting the

index by responding to questions from the Town's counsel, and with

respect to certain documents, providing additional information

acquired by reference to a particular document itself.   At the end

of this process, the agency agreed to release an additional thirty-

seven documents.   As a result, only fifty-five documents remained

in controversy.

           The parties then returned to the district court for

further proceedings. The district court, though not required to do

so, see NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 224

(1978); Maynard, 986 F.2d at 557 (citing Church of Scientology v.

U.S. Dep't of the Army, 611 F.2d 738, 742 (9th Cir. 1979)), agreed

to conduct an in camera review of the remaining documents.4   As a

result of this in camera review, the district court concluded that

an additional nine documents were not exempt from disclosure and

should be released, but found the remaining documents all subject

to the § 5 FOIA exemption, see 5 U.S.C. § 552(b)(5), and therefore


4
     Discretionary in camera review enables the court to conduct a
first-hand examination of the documents to determine whether the
government appropriately claimed an exception from disclosure with
respect to such documents. Maynard, 985 F.2d at 557. An in camera
review can provide the district court with an adequate factual
basis to determine whether the government has successfully carried
its burden and proved that claimed exemptions apply to particular
documents. Id. at 558 (citing Irons v. Bell, 596 F.2d 468, 471
(1st Cir. 1979)).

                                -5-
concluded that they were properly withheld.           The agency promptly

produced the nine documents that the district court found were not

exempt from disclosure.

            The   conditions   of   and   procedure   undertaken   in   the

district court's in camera review form the nub of the present

controversy.      In view of the Town's desire to obtain as many

documents as possible prior to filing its appellate brief in the

petition for review proceedings, the district court decided to

forego briefing on the scope of the § 5 FOIA exemptions claimed by

the agency and accepted the contested documents into evidence.           At

the time it did so, the court stated, "I take it the parties have

no objection to my offering this advice to you.         In other words, I

am ruling on these documents as either being work product, you

know, privilege[d] or not privilege[d]." (emphasis added). Moments

later, the court again confirmed that the parties had no objection

to its "making that ruling."

            The government agreed that it had no objection, and other

than expressing concern about the adequacy of the agency's Vaughn

index, the Town also voiced no objection to the court’s proposed

approach.      Although the Town did discuss nuances of the § 5

exemptions from FOIA, in response to questions from the court the

Town continued to maintain that it was primarily interested in an

expedited decision in the hope of acquiring additional documents

for use in connection with the petition for review.

            With this background, we briefly review the well-known

legal standards and policy considerations underlying FOIA.              The


                                    -6-
statute was enacted to "expose the operations of federal agencies

'to the light of public scrutiny,'"              Carpenter v. U.S. Dep't of

Justice, 470 F.3d 434, 437 (1st Cir. 2006) (quoting Dep't of the

Air Force v. Rose, 425 U.S. 352, 372 (1979)), and therefore the

statute   embodies      a   principle    of   broad   disclosure,      Church    of

Scientology, Int'l v. U.S. Dep't of Justice, 30 F.3d 224, 228 (1st

Cir.   1994).         Consequently,     we    construe    the   nine    statutory

exemptions from disclosure contained in FOIA narrowly, Dep't of

Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 8

(2001), with any doubts resolved in favor of disclosure, see

Carpenter, 460 F.3d at 438 (citing U.S. Dep't of Justice v. Julian,

468 U.S. 1, 8 (1988)); see also Trentadue v. Integrity Comm., 501

F.3d 1215, 1226 (10th Cir. 2007).               Furthermore, the government

bears the burden of proving that any withheld materials fall within

one of the statutorily enumerated exemptions to FOIA.                  Carpenter,

470 F.3d at 438 (citing 5 U.S.C. § 552; Orion Research, Inc. v.

EPA, 615 F.2d 551, 553 (1st Cir. 1980)).

           In this case, the agency relied on exemption 5, which

exempts from disclosure "inter-agency or intra-agency memorandums

or letters which would not be available by law to a party other

than an agency in litigation with the agency."                        5 U.S.C. §

552(b)(5); see also State of Maine, 298 F.3d at 66.                   The Supreme

Court has held that this exemption is coextensive with civil

discovery privileges, including inter alia, the attorney-client

privilege,      the     attorney   work-product          privilege,     and     the




                                        -7-
deliberative process privilege.          See Klamath Water Users, 532 U.S.

at 8; see also State of Maine, 298 F.3d at 66.

           Normally, an agency seeking to claim an exemption from

FOIA   prepares    a   Vaughn   index    and    supplements     the    index   with

affidavit(s) and/or testimony that can be presented in camera or

not.   See Maynard, 986 F.2d at 556-58.            In addition, the district

court has the option, but not the obligation, to review the

underlying documents in camera.           See supra note 4.           In short, by

any road it chooses, the district court must, employing a de novo

review, find an adequate factual basis to support the agency's

assertion of the exemption.        Maynard, 986 F.2d at 557 n.11.

           Though perhaps unorthodox and expedited, the district

court's disposition of this case was balanced and appropriate; any

departure from normal procedures was undertaken with the consent of

both parties.      Similarly, any deficiency in the district court's

analysis was occasioned by the court's herculean efforts to provide

the Town with what it most desired: access to as many additional

documents as possible in advance of the filing of its brief in the

petition     for   review.       Basic        principles   of    fairness       and

reasonableness counsel against permitting the Town, after having

benefitted    from     the   district    court's    expedited     rulings,5      to

complain about the process it agreed to.



5
     At least partly as a result of the good offices of the
district court, it appears the agency released an additional
thirty-seven documents to the Town at the status conference.
Moreover, after its in camera review, the district court ordered
that an additional nine documents be released to the Town, and the
agency provided those documents at the close of the hearing.

                                        -8-
           We therefore conclude that, on balance, by agreeing to

expedited procedures in the district court, the Town either has

knowingly abandoned its right to complain about those procedures

(as the government essentially argues), see United States v.

Garrasteguy, 559 F.3d 34, 41 (1st Cir. 2009) (citing United States

v. Walker (1st Cir. 2008)); accord Puleio v. Dist. Att'y for the E.

Dist.,   504   N.E.2d   354   (Mass.    1987),6   or,   at   a    minimum,   has

forfeited any objection to them.

           As the Town failed to lodge a timely objection to the

district court's procedure, our review is for plain error only.

Chestnut v. City of Lowell, 305 F.3d 18, 20 (1st Cir. 2002) (en

banc).    Plain error will result in reversal only if the district

court    committed   an   obvious      and   clear   error       that   affected

substantial rights, and if left unremedied would call into question

the fairness, integrity, or public reputation of the judicial

proceedings.    Nat'l Union Fire Ins. Co. of Pittsburgh, PA v. West

Lake Academy, 548 F.3d 8, 22 (1st Cir. 2008) (citing Smith v. Kmart

Corp., 177 F.3d 19, 26 (1st Cir. 1999)).

           We discern no such deficiency in the district court's

disposition of this case.       As explained above, the district court



6
     In its brief, the Town contends that at the December 12 status
conference, the district court merely agreed to give the parties
"advice" about the applicability of any FOIA exemptions, and that
the district court would "analyze the merits" of the litigation at
some later date. Although this interpretation has some support in
the record, our reading of the record is that the district court
believed that it was to rule on the availability of exemptions.
Moreover, given the Town's repeated acquiescence in this procedure,
it has abandoned, or at least forfeited, any objection as to the
outcome of the procedure.

                                       -9-
is vested with the discretionary authority to review documents in

camera,   and   although   it   could   have   been   clearer   about   the

consequences of its in camera review, there is sufficient record

support to conclude that the Town was aware of the district court's

intentions, and that it acquiesced in the court's plan of action.

For example, as noted above, the Town did not object to the

district court's statement that it would make rulings as to whether

the withheld documents were privileged and therefore exempt from

disclosure.     Moreover, after the district court made its rulings,

the Town promised to notify the court by December 17, 2007 if it

had any objections to the court's closing the case.7        The fact that

the Town made this commitment reinforces the conclusion that the

Town was aware that the district court had issued dispositive

rulings that would stand, unless the Town affirmatively acted to

reinvigorate the case.     In these circumstances, we cannot conclude

that upholding the district court's handling of these proceedings




7
     We also note that even if the Town had not agreed up front to
the expedited process that the district court fashioned to decide
this case, its later objection to this procedure was untimely.
Even though it had agreed to inform the district court if it had
any objections to the closure of the case by December 17, 2007, the
Town did not file any such objection until December 26, 2007.
Because the district judge denied the Town's motion for
reconsideration and the subsequent motion for a hearing on the
merits with margin orders, it is unclear whether the court gave any
effect to the Town's tardiness. Had the district court done so,
this would have been an independently appropriate ground on which
to deny the Town any relief.     Cf. Stonkus v. City of Brockton
School Dep't., 322 F.3d 97, 100-01 (1st Cir. 2003) (upholding
district court's refusal to permit party to file untimely
opposition to summary judgment and upholding grant of unopposed
motion for summary judgment).

                                  -10-
would result in a miscarriage of justice or impugn the fairness,

integrity, or public reputation of these proceedings.

          We conclude by noting that although the Town must live

with the concessions that it made in return for an expedited

disposition   of   its   FOIA   action,   another   requestor   would   not

necessarily be bound by the Town's concessions.        We can envision a

future requestor being entitled to fully litigate its FOIA claims.

In that regard, we note our initial assessment -- based on our

limited inspection -- that the Vaughn index submitted by the FAA
appears overly scanty and insufficient to provide a factual basis

for sustaining the agency's claimed exemptions.         See Maynard, 986

F.2d at 557 n.11.

          For example, the agency claims that document number

eighty-six is subject to the attorney-client privilege.         The index

describes the document as "E-mail from Bettina Peronti, FAA to

Thomas Davidson, FAA et al re:       centerfield taxiway meeting with

John Donnelly, FAA Legal Counsel."           The index entry includes

neither a description of the length of the document, nor the
identities of all of its recipients.8      Moreover, it is unclear from

the e-mail whether either Ms. Peronti, the author of the document,

8
     The names of all recipients is necessary because that
information may aid in determining whether the attorney-client
privilege has been waived as the result of disclosure of the
contents of any privileged communication to third parties. See
United States v. Bay State Ambulance and Hosp. Rental Serv., Inc.,
874 F.2d 20, 27-28 (1st Cir. 1989).
     Similarly, for documents to which the agency claims the
attorney work-product privilege applies, it has not identified --
in the Vaughn index or elsewhere -- "the litigation for which the
document was created," which is required in order for the privilege
to attach. State of Maine, 298 F.3d at 69.

                                   -11-
or Mr. Davidson, the only listed recipient of the document, is an

attorney.

            More concerning is the fact that this document does not

appear   to   meet    the   standard   for   privileged   attorney-client

communications.      The document is an email describing a meeting at

which Massport proposed a number of mitigation measures with

respect to the centerfield taxiway, and it includes the reactions

of various participants to the proposals.        Although John Donnelly,

an agency attorney, was present in the meeting, the document does
not describe any of his views, and legal issues are barely -- if at

all -- mentioned in the document.              We require more for the

attorney-client privilege to attach.         See State of Maine, 298 F.3d

at 71 (party asserting privilege must show (1) that he was a

client; (2) that the attorney acted as a lawyer in connection with

the document; (3) that the document relates to facts communicated

for the purpose of a legal opinion; and (4) that the privilege has

not been waived).      Here, it is unclear whether Mr. Donnelly was

acting as a lawyer, and it is even less clear that the purpose of
the meeting was to procure a legal opinion.

            Thus, we have some unease with respect to the quality of

the agency's Vaughn index, and the merits of at least one of the

district court's rulings.9     It is possible that should an unrelated

party request similar documents, the outcome could be different.




9
     We have not exhaustively examined all of the documents, as
such an examination is not necessary to our decision.

                                   -12-
          Nevertheless, in the case at hand, the district court

made monumental efforts to accommodate the Town's emergency request

for access to documents, and in return, the Town conceded its right

to a more deliberate and thorough determination of the issues.   In

these circumstances, it would be unfair to both the district court

and the government, which complied with the district court's

decision and disclosed nine additional documents, to upend the

balance struck by the court and agreed to by the parties below.

Therefore the decision of the district court is affirmed.




                               -13-
