251 F.3d 1047 (D.C. Cir. 2001)
Gregory Smith, Appellantv.U. S. Department of Justice, Appellee
No. 00-5211
United States Court of Appeals  FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 7, 2001Decided June 12, 2001

Appeal from the United States District Court  for the District of Columbia (No. 99cv00784)
Sidney A. Rosenzweig, appointed by the court, argued the  cause as amicus curiae on the side of appellant.  With him on  the brief was Robert S. Litt.
Gregory Smith, appearing pro se, was on the brief for  appellant.
Lisa Barsoomian, Assistant U.S. Attorney, argued the  cause for appellee. With her on the brief were Wilma A.  Lewis, U.S. Attorney at the time the brief was filed, and R.  Craig Lawrence, Assistant U.S. Attorney.
Before:  Williams, Ginsburg, and Rogers, Circuit Judges.
Opinion for the Court filed by Circuit Judge Ginsburg.
Ginsburg, Circuit Judge:


1
While incarcerated at a federal  correctional institution, Gregory Smith placed several calls to  his attorney.  Although an unmonitored telephone was available for this purpose, Smith used a telephone line on which he  knew all calls were monitored and recorded pursuant to a  policy of the Bureau of Prisons.  Smith claims that during the  conversations the attorney effectively acknowledged that he  had not provided Smith with constitutionally adequate assistance.


2
Smith later asked the Bureau of Prisons, under the Freedom of Information Act, 5 U.S.C. § 552, for copies of the  recordings it made of the conversations.  The Government  denied the request on the sole ground that the recordings fall  within Exemption 3 of the FOIA because Title III of the  Omnibus Crime Control and Safe Streets Act, 18 U.S.C.  §§ 2510 et seq., bars their disclosure.  When Smith sought  judicial review, the district court granted summary judgment  for the Government.  As we read Title III it is inapplicable to  the recordings at issue.  Therefore, under the FOIA Smith is  entitled to the recordings.  Smith -who appeared pro se  and briefed the case creditably both in the district court and  here -is now aided by an amicus curiae we appointed for  the occasion;  we make no further distinction between Smith's  arguments and those of the amicus.

Analysis

3
Exemption 3 of the FOIA makes the general requirement  of disclosure inapplicable to materials


4
specifically exempted from disclosure by statute ... provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no  discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld.


5
5 U.S.C. § 552(b)(3).  We have held that Title III, 18 U.S.C.  §§ 2510 et seq., which limits the electronic interception and  disclosure of various communications, is just such an exempting statute because it "refer[s] to particular types of matters  to be withheld."  Lam Lek Chong v. DEA, 929 F.2d 729, 733  (1991).  Accordingly, Smith concedes that if the nondisclosure provisions of Title III apply to the recordings he  seeks, then so does Exemption 3 of the FOIA.  Whether the  district court correctly granted summary judgment for the  Government therefore turns upon whether Title III proscribes disclosure of the recordings.


6
Subject to certain exceptions, Title III makes it unlawful  for a person to "intercept" "any wire, oral, or electronic  communication."  18 U.S.C. § 2511.  The Government here  contends that the prison authorities, by recording the conversations Smith had with his attorney, "intercepted" those  communications and did so lawfully, as authorized by the  consent exception in 18 U.S.C. § 2511(2)(c) ("person acting  under of color of law [may] intercept ... where ... one of the  parties to the communication has given prior consent").  The  Government then reasons that because Title III expressly  permits certain specifically-described types of disclosure (for  example, in court testimony) of communications obtained "by  any means authorized" in Title III, 18 U.S.C. § 2517, it  implicitly forbids any other type of disclosure, including disclosure pursuant to the FOIA.


7
Smith correctly identifies the fundamental defect in the  Government's argument:  the recordings he seeks were not  the product of an "interception," consensual or otherwise,  governed by Title III;  therefore, they are not subject to  whatever limitations Title III places upon the disclosure of  information that does result from a covered interception. Here " 'intercept' means the aural or other acquisition of ...  any wire, electronic, or oral communication through the use of  any electronic, mechanical, or other device."  8 U.S.C. § 2510(4).  "[E]lectronic, mechanical, or other device," in  turn,


8
means any device or apparatus which can be used to intercept a wire, oral, or electronic communication other than


9
(a) any telephone or telegraph instrument, equipment or facility, or any component thereof, ...


10
(ii) being used ... by an investigative or law enforcement officer in the ordinary course of his duties.


11
18 U.S.C. § 2510(5) (emphasis supplied).  The latter definition consists first of an inclusionary clause specifying the  equipment associated with a proscribed interception, and then  of an exclusionary provision -of which § 2510(a)(ii) is  part -specifying "acquisitions" that remain outside the  statutory definition of an "interception."  We have no doubt  that the recordings Smith seeks fall under the exclusionary  terms of § 2510(5)(a)(ii):  They were obtained by "law enforcement officers" (the prison authorities) who "used," "in  the ordinary course of [their] duties," some telephone "instrument, equipment or facility, or [a] component thereof."


12
In fact, the Government said as much before the district  court:  "The ... provisions of Title III," here citing  § 2510(5)(a)(ii) and the consent exception, "ma[d]e the taping  of these calls legal."  Government's Statement of Material  Facts Not in Genuine Dispute at p 9.  Evidently, the Government (and the district court) overlooked the point Smith made  in his own motion for summary judgment, namely, that  § 2510(5)(a)(ii) does not 'authorize' the recordings but instead  excludes them entirely from the coverage of the statute. Now that Smith drives the point home, the Government has  changed its position.


13
The Government's current position, that the recordings do  not satisfy the terms of § 2510(5)(a)(ii), is contradicted by a  consistent line of cases admitting into evidence recordings  made by prison authorities who routinely monitor inmates'  conversations.  Those cases hold that such recordings are not  unlawful under Title III because they come within the exclusionary terms of § 2510(5)(a)(ii).  See, e.g., United States v.  Van Poyck, 77 F.3d 285, 292 (9th Cir. 1996);  United States v.  Daniels, 902 F.2d 1238, 1245 (7th Cir. 1990);  United States v.  Feekes, 879 F.2d 1562, 1565-66 (7th Cir. 1989);  United States  v. Paul, 614 F.2d 115, 117 (6th Cir. 1980).  Indeed, that was  the position of the Government in each of the cited cases.


14
The Government nonetheless posits two reasons  § 2510(5)(a)(ii) does not embrace (and hence does not exclude  from Title III) the recordings here at issue;  neither has real  bite.  First, the Government asserts that the exclusion provided in § 2510(5)(a)(ii) "applies only to use of a telephone to  listen, not to use of a tape recorder to record."  That construction conflicts with the distinction, which is implicit in  Title III, between intercepting ("acqui[ring] the contents of  any ... communication," § 2510(4)) -for which some prison  telephone "instrument, equipment or facility, or [some] component thereof" was almost certainly used in this case -and  recording that communication -for which a separate device  well may have been used.  See 18 U.S.C. § 2518(8) (a)  ("contents of any ... communication intercepted by any  means authorized by this chapter shall, if possible, be recorded on tape or wire or other comparable device") (emphasis  supplied).  We say "almost certainly" because the Government introduced no evidence whatsoever regarding the equipment it used to monitor the calls;  more to the point, the  Government failed to prove that the means of intercepting the  calls did not involve use of the prison's telephone system or a  component thereof.  Because the Government bears the burden of showing that an exemption from the FOIA applies, see  Maydak v. DOJ, 218 F.3d 760, 764 (D.C. Cir. 2000), that  failure of proof alone forecloses its first argument.


15
Second, the Government asserts that "section 2510(5)(a)(ii)  applies only when the telephone is 'being used by ... an  investigative or law enforcement officer,' i.e. the officer is the  person using the telephone, not when the telephone is being  used by someone else and the officer is just using the tape  recorder."  The statute is not susceptible to that construction  because it embraces use not only of a telephone but of any  telephone "equipment or facility, or any component thereof," 18 U.S.C. § 2510(5);  clearly, the law enforcement officer need  not be using the telephone itself, wherefore he need not be  participating in the conversation either.  Moreover, 18 U.S.C.  § 2511(2)(c) separately authorizes "a person acting under  color of law to intercept a ... communication where such  person is a party to the conversation";  as the requirements of  that section are automatically met when a law enforcement  officer actually participates in the conversation, the Government's reading would render § 2510(5)(a)(ii) superfluous.


16
Finally, the Government requests in the alternative that we  remand this case to the district court so it can there for the  first time raise certain other exemptions from the FOIA. That avenue is barred:


17
We have plainly and repeatedly told the government that, as a general rule, it must assert all exemptions at the same time, in the original district court proceedings....  FOIA was enacted to promote honesty and reduce waste in government by exposing an agency's performance of its statutory duties to public scrutiny.... As we have observed in the past, the delay caused by permitting the government to raise its FOIA exemption claims one at a time interferes both with the statutory goals of "efficient, prompt, and full disclosure of information," ... and with "interests of judicial finality and economy."


18
Maydak, 218 F.3d at 764.  The Government identifies no  "extraordinary circumstance" or "interim development" of  facts or of law, id. at 767, to warrant our departing from this  rule.  Therefore, it must produce the recordings notwithstanding any other FOIA exemptions it may assert in a  future case of this sort.

Conclusion

19
For the foregoing reasons, we hold that Smith is entitled to  the recordings he requested pursuant to the FOIA.  The  judgment of the district court is, accordingly,


20
Reversed.

