 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued December 14, 2006                  Decided June 1, 2007

                         No. 05-5207

                      HAROLD MARTIN,
                        APPELLANT

                              v.

              DEPARTMENT OF JUSTICE, ET AL.,
                      APPELLEES


                      Consolidated with
                          06-5048


        Appeals from the United States District Court
                for the District of Columbia
                      (No. 04cv00697)
                      (No. 96cv02866)



        Edwin E. Huddleson, III argued the cause and filed the
briefs for appellants.

       Alan Burch, Assistant U.S. Attorney, argued the cause
for appellee United States Department of Justice, et al. On the
brief were Jeffrey A. Taylor, U.S. Attorney, and R. Craig
Lawrence and Kathleen M. Konopka, Assistant U.S. Attorneys.
Claire M. Whitaker and Michael J. Ryan, Assistant U.S.
                                2

Attorneys, entered appearances.

       Richard J. Osterman, Jr., Assistant General Counsel,
Federal Deposit Insurance Corporation, and Lawrence H.
Richmond and Kathleen V. Gunning, Counsel, were on the brief
for appellee Federal Deposit Insurance Corporation. Colleen J.
Boles, Senior Counsel, and Jack D. Smith, Jr. and Jaclyn C.
Taner, Counsel, entered appearances.

        Norman J. Chachkin, Michael S. Fried, and Arthur B.
Spitzer were on the brief for amici curiae American Civil
Liberties Union of the National Capital Area, et al. in support of
appellants.

       Before: ROGERS, BROWN and GRIFFITH, Circuit Judges.

       Opinion for the Court filed by Circuit Judge GRIFFITH.

         GRIFFITH, Circuit Judge: We review this consolidated
appeal after ten years of litigation during which appellants
Harold Martin and the National Association of Criminal Defense
Lawyers, Inc. (the “NACDL”) have repeatedly attempted to use
the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, to
obtain government documents that they allege were wrongfully
withheld under Brady v. Maryland, 373 U.S. 83 (1963) during
Martin’s criminal conviction in Texas in 1994. Before us are
appeals of summary judgments by the U. S. District Court for
the District of Columbia in favor of the Federal Bureau of
Investigation (“FBI”), the Executive Office of the United States
Attorneys (“EOUSA”), and the Federal Deposit Insurance
Corporation (“FDIC” or “the Corporation”), each of which
denied appellants’ FOIA requests. We affirm the district court’s
judgment that Martin is collaterally estopped from further
litigation in pursuit of one of the requested documents and that
the remaining requested documents were properly withheld by
                                 3

the government under exemptions to FOIA.

                                 I.

         In 1994, Harold Martin was convicted by a jury in Texas
of thirty counts of fraud-related crimes involving a loan scheme
targeting Broadway Bank & Trust Company (“Broadway
Bank”) that caused its financial failure. See United States v.
Martin, Crim. No. 93-0316, Mem. Op. at 2 (N.D. Tex. May 21,
1999). Martin was sentenced to more than ten years in prison
and ordered to pay more than twenty-seven million dollars in
restitution. See id. His conviction was affirmed on appeal. Since
that time, Martin has with limited success sought government
documents that he alleges were wrongfully withheld during his
trial and that would, according to his argument, at least affect his
sentencing and possibly exculpate him entirely. Martin has
pursued two avenues for relief. First, in a post-conviction
collateral challenge to his sentence, he alleged prosecutorial
misconduct, prompting the district court in Texas to obtain and
review the documents that Martin alleged were improperly
withheld. The court found nothing in these documents that
would affect Martin’s guilt or sentencing, and therefore nothing
to demonstrate government wrongdoing. Based on those
findings, Martin’s post-conviction challenge was dismissed.
Second, Martin (and eventually the NACDL) made numerous
requests to obtain these same documents from the government
through FOIA, alleging that they demonstrate government
wrongdoing. This appeal involves those requests. We first
summarize the Texas federal district court’s review of Martin’s
claim of prosecutorial misconduct. That court’s conclusion that
no prosecutorial misconduct occurred bears on appellants’
present claim that the documents they seek are of public interest
because they demonstrate government wrongdoing. We then
summarize the procedural history of the FOIA requests
themselves.
                                4


         In 1997, three years after his conviction, Martin asked
the district court that sentenced him to “vacate, set aside or
correct [his] sentence” pursuant to 28 U.S.C. § 2255, “claiming
. . . that [his] sentence was imposed in violation of the
Constitution or laws of the United States . . . or is otherwise
subject to collateral attack.” Martin alleged that the prosecution
had improperly withheld potentially exculpatory evidence
relating to a main government witness, John Generelli (a former
Vice President at Broadway Bank), who was allegedly
investigated for wrongful conduct relating to the same bank
fraud for which Martin was tried. Martin argued that this alleged
withholding of evidence contravened the rule in Brady v.
Maryland, 373 U.S. 83 (1963), that “the suppression by the
prosecution of evidence favorable to an accused upon request
violates due process where the evidence is material either to
guilt or to punishment, irrespective of the good faith or bad faith
of the prosecution,” id. at 87. A magistrate judge held a hearing
on Martin’s § 2255 motion, see United States v. Martin, Crim.
No. 93-0316 (N.D. Tex. Jul. 23, 1998), and ordered the
government to present testimony regarding “the existence of any
additional documents relating to Generelli in the possession of
the government and/or FDIC [before Martin’s criminal trial.]”
Id. at 11.

        In response to the court’s order, the Department of
Justice (“DOJ”) directed the FBI and FDIC to provide the
Department with all documents pertaining to the financial failure
of Broadway Bank, see United States v. Martin, Crim. No. 93-
0316, Mem. Op. at 4 n.5 (N.D. Tex. May 21, 1999) (citation
omitted), and subsequently delivered to the magistrate judge all
documents relating to Generelli that the Department received
from those agencies. Id. The DOJ also produced documents
culled from its own review of related FBI files in Newark, New
Jersey—where Broadway Bank was located—and Dallas,
                                  5

Texas—where Martin was tried and convicted.1 Id. Following an
evidentiary hearing, the magistrate judge found that the
documents, “viewed most liberally, establish that Generelli was
suspected of engaging in bank fraud in the [fraudulent loan
scheme for which Martin was convicted] and other loan
programs,” id. at 17. The court denied Martin’s § 2255 motion,
however, concluding that he had “failed to establish as he must
that the government’s failure to disclose the alleged Brady
documents materially affected his conviction or sentence.” Id.
at 18.

        Martin’s unsuccessful post-conviction litigation in
federal district court in Texas is prologue to the matter before
us: the FOIA appeals. Beginning in 1996, even before filing his
§ 2255 motion, Martin made FOIA requests of the FBI, the
EOUSA, and the FDIC to obtain the same information he argued
had been wrongfully withheld at his trial and that the district
court had reviewed in dismissing his § 2255 motion. The record
before us is congested in large part as a result of Martin’s failure
to exhaust all available administrative remedies in his pursuit of
these documents under FOIA, resulting in numerous premature
attempts to seek relief in the federal district and appellate courts
for the District of Columbia. Thankfully, it is not necessary for
us to recount Martin’s decade-long colloquy with those courts
and the involved government agencies. Suffice it to say that,
with regard to the FOIA requests on appeal before us, the
extensive case history only reveals Martin’s procedural missteps
and subsequent corrections.


     1
        Redacted versions of these documents presumably remain in
the public archived records of the United States District Court for the
Northern District of Texas, prompting the government to argue that,
at least with respect to some of the materials appellants seek, their
claim is moot. See Appellee FDIC Br. at 26-29.
                                 6

                       A. The 1991 Report

         Martin seeks a 1991 “Report of Apparent Crime” filed
by Broadway Bank with the FDIC (“1991 Report”) that
describes the fraudulent loan scheme for which Martin was
convicted and mentions former Senior Vice President of
Broadway Bank, John Generelli. In 1998, the District Court for
the District of Columbia directed the FDIC to release reasonably
segregable, non-exempt portions of the 1991 Report. Martin v.
FDIC, Civ. No. 97-1368 (D.D.C. Dec. 11, 1998). The FDIC
complied, redacting information it argued was private and
therefore exempt from disclosure under FOIA Exemptions 6 and
7(C). See 5 U.S.C.§ 552(b)(6), (b)(7)(C) (FOIA Exemptions 6
and 7(C), respectively, exempt from required disclosure
“personnel . . . files and similar files the disclosure of which
would constitute a clearly unwarranted invasion of personal
privacy” and “records or information compiled for law
enforcement purposes . . . [the] production of [which] could
reasonably be expected to constitute an unwarranted invasion of
personal privacy.”). Following this limited disclosure, the
district court (which had stayed its ruling to allow the
government to release a redacted version of the document)
granted summary judgment against Martin. Martin v. FDIC,
Civ. No. 97-1368 (D.D.C. Sept. 1, 2000). Intent on obtaining the
entire document without redactions, Martin appealed, but then
curiously filed a motion to dismiss the appeal, which this Court
granted. Martin v. FDIC, Civ. No. 00-5391 (D.C. Cir. Dec. 13,
2001). Martin eventually returned to district court, still in pursuit
of the 1991 Report without redactions. Again, the district court
granted summary judgment against him, holding that this
Court’s dismissal of his appeal (at his own request) foreclosed
any future challenge to the district court’s ruling. Martin v. DOJ,
et al., No. 96-2866, Mem. Op. at 4 n.1 (D.D.C. Mar. 28, 2005)
(“March 2005 Opinion”). Martin appeals the district court’s
latest judgment against him.
                                7


                  B. The 1992 Memorandum

        Martin and the NACDL seek a December 14, 1992
Memorandum from an FDIC Investigations Specialist to legal
counsel concerning a bond claim arising out of the fraudulent
loan scheme for which Martin was convicted.2 The FDIC
described the 1992 Memo as “a 49 page confidential case
memorandum . . . from an FDIC investigator to an attorney in
the FDIC’s Professional Liability Section regarding Broadway
Bank & Trust Company,” on which each page is stamped
“Attorney Work Product Privileged Prepared Under Direction
of Counsel in Contemplation of Litigation Attorney/Client
Privileged.” March 2005 Opinion at 4 (citing Declaration of
Barbara A. James at 3, ¶ 12) (quotation marks omitted).
Appellants sought “all information about Generelli in the [1992
Memo],” id., but the district court entered judgment for the
FDIC, holding that it had properly withheld the entire 1992
Memo on the basis of FOIA Exemption 5, which “applies to
materials that normally are privileged in the civil discovery
context, including those protected by the attorney work product
privilege . . . .” id. at 4-5 (citations omitted); see also Nat’l
Ass’n of Crim. Def. Lawyers v. DOJ, Civ. No. 04-0697 (D.D.C.
Mar. 28, 2005) (granting judgment against the NACDL for the


        2
          In April 2004, the NACDL filed its own FOIA complaint
against the FDIC seeking “[a]ll information about Generelli” in the
1992 FDIC Memo. The NACDL’s argument resembled Martin’s: The
government violated Martin’s rights under Brady by withholding
records related to a prosecution witness (Generelli) suspected of
wrongdoing in the bank fraud for which Martin was convicted and
disclosure of the requested information is in the public’s interest
because it would further the NACDL’s study of prosecutorial
misconduct. See NACDL v. DOJ, Civ. No. 04-0697, Compl. ¶ 13.
                                8

same reasons described in the March 2005 Opinion). Martin and
the NACDL appeal these judgments.

                     C. The FBI Records

        Martin also seeks information held by the FBI related to
Generelli. In 1998, Martin requested all records withheld by the
FBI that “would show that the Broadway Bank’s former Senior
Vice President John Generelli was suspected of wrongdoing in
the $21.5 million bank fraud for which plaintiff Harold Martin
was convicted.” Martin v. DOJ, Civ. No. 96-2866, Am. Compl.
¶ 3(b). In response, the FBI requested that Martin either show
proof of death or privacy waivers for Generelli and added that
absent such, the requested information must be withheld
pursuant to FOIA Exemptions 6 and 7(C). Martin could not
provide proof of death or produce a privacy waiver for
Generelli, and the FBI determined that release of the requested
information “would not add to the public’s understanding of the
inner workings of the government,” but “would announce to the
world the extent to which [Generelli] [was] of interest to the FBI
. . . [potentially] subject[ing] [him] to embarrassment,
humiliation, and unwarranted public attention.” March 2005
Opinion at 9 (citing FBI’s Motion for Summary Judgment, Decl.
of Keith R. Gehle ¶ 16). Martin appealed the FBI’s decision to
the Office of Information and Privacy (“OIP”) at the DOJ,
which affirmed.

        Shortly thereafter, Martin submitted a FOIA request to
the EOUSA for “Brady material on Generelli.” [J.A 504] The
EOUSA’s response mirrored that of the FBI: Without proof of
Generelli’s death or a privacy waiver, the EOUSA would
categorically invoke FOIA Exemptions 6 and 7(C) to protect a
third party’s interests. Martin’s appeal to OIP of the EOUSA’s
decision was dismissed as duplicative of his prior appeal of the
FBI’s decision to withhold the same records. Having exhausted
                                9

his administrative remedies in pursuit of these records, Martin
brought his claim to the district court, which entered summary
judgment against him, concluding that the FBI and EOUSA
properly withheld documents containing private information
about third parties because Martin’s asserted interest in the
allegedly exculpatory evidence was “private in nature,” March
2005 Opinion at 12 (citing Oguaju v. United States, 288 F.3d
448, 450 (D.C. Cir. 2002), vacated and remanded on other
grounds, 541 U.S. 970 (2004), reinstated, 378 F.3d 1115 (D.C.
Cir. 2004) (citation omitted) (“Oguaju’s personal stake in using
the requested records to attack his convictions does not count in
the calculation of the public interest”)), and success in obtaining
the requested documents would therefore “further no one’s
interest but perhaps [Martin’s] own,” id. at 13. Absent the
requisite showing of a public interest in Martin’s FOIA request,
the district court found no genuine issue of material fact with
respect to the agencies’ application of Exemption 7(C) to the
Generelli records and therefore had no need to address the
applicability of Exemption 6.

                                II.

        Congress enacted FOIA in 1966 to grant a right of public
access to governmental information “long shielded
unnecessarily from public view” and authorized judicial
enforcement of that right against “possibly unwilling official
hands.” EPA v. Mink, 410 U.S. 73, 80 (1973), superseded by
statute, Freedom of Information Act, Pub. L. No. 93-502, § 2(a),
88 Stat. 1563 (1973). Recognizing, however, that the public’s
right to information was not absolute and that disclosure of
certain information “may harm legitimate governmental or
private interests,” Congress created several exemptions to FOIA
disclosure requirements. Summers v. DOJ, 140 F.3d 1077, 1080
(D.C. Cir. 1998). The interests asserted by the government in
this case, for example, may be overcome upon a proper showing
                               10

by appellants that the document protected under Exemption 5
would be “routinely” or “normally” disclosed upon a showing
of relevance, see FTC v. Grolier Inc., 462 U.S. 19, 26 (1983)
(citation omitted), and that the documents protected under
Exemption 7(C) generated a sufficient public interest to
outweigh counterveiling privacy interests, see Boyd v. DOJ, 475
F.3d 381, 386-87 (D.C. Cir. 2007) (citing DOJ v. Reporters
Comm. for Freedom of Press, 489 U.S. 749, 762 (1989)).

       Two crucial facts resolve this case. First, Martin has
already litigated to conclusion the issues surrounding the 1991
Report and is collaterally estopped from further litigation of the
same issues. Second, the federal district court in Texas has
reviewed Martin’s conviction pursuant to his § 2255 motion, and
has held that the remaining requested documents do not contain
Brady material. We need not address, therefore, whether a
criminal defendant may use FOIA to access documents that may
contain Brady material. The material in question here is either
subject to principles of collateral estoppel or is, by judicial
holding, not Brady material. The former is precluded from our
consideration altogether. The latter is protected from disclosure
under FOIA Exemption 5, or of too little public interest to
outweigh the government’s substantial privacy interests under
FOIA Exemption 7(C). We therefore affirm the district court’s
conclusion that the government properly denied each of
appellants’ FOIA requests and do not reach the district court’s
broader conclusions about the relationship between FOIA and
Brady.

                     A. The 1991 Report

       Martin alleges that the 1991 Report demonstrates that his
fraud conviction was tainted by prosecutorial misconduct. In
response, the FDIC asserts that Martin is collaterally estopped
from challenging its partial withholding of the 1991 Report
                                  11

because his previous FOIA request for the document was fully
litigated in Martin v. FDIC, Civ. No. 97-1368 (D.D.C. Sept. 1,
2000). We agree, and therefore need not reach the balancing test
we would otherwise employ to assess the merits of Martin’s
claim.

        Collateral estoppel requires three elements, each of
which is present here: “[1], the same issue now being raised
must have been contested by the parties and submitted for
judicial determination in the prior case[; 2], the issue must have
been actually and necessarily determined by a court of
competent jurisdiction in that prior case [; and] [3], preclusion
in the second case must not work a basic unfairness to the party
bound by the first determination.” Yamaha Corp. of Amer. v.
United States, 961 F.2d 245, 254 (D.C. Cir. 1992).

        First, Martin’s claim in this case that the government has
improperly withheld the 1991 Report based upon FOIA
Exemption 7(C) was “contested by the parties and submitted for
judicial determination in the prior case,” id.3 In the prior case,
Martin alleged that FDIC investigators suspected that
wrongdoing by Generelli and others caused the bank fraud for
which Martin was convicted. Martin claimed that the
government violated his Brady rights by withholding records
detailing these suspicions, and that these documents constituted
Brady material that should be released under FOIA. The FDIC

        3
          According to Martin’s affidavit in the prior case, his request
for documents included the 1991 Report. “Of the records plaintiff
sought in the supplemental complaint, the FDIC has established that
the 1991 [FDIC] Report of Apparent Crime in which Mr. Generelli is
mentioned was released with redactions in a separate action, Martin
v. FDIC, Civ. Action No. 97-1368 (Sept. 1, 2000), which was
dismissed with prejudice.” Martin v. DOJ, Civ. No. 96-2866, 4, n.1
(D.D.C. 2005) (citing Second Declaration of Frederick L. Fisch at 17
¶ 47).
                              12

withheld the unredacted report under FOIA Exemption 7(C).
Here, Martin makes the same claims and seeks “all information
about Generelli in the Broadway Bank’s March 22, 1991 Report
of Apparent Crime (FBI “Newark File” No. 29B-NK-69023-1
and -2),” Martin v. DOJ, Civ. No. 96-2866, 2nd Am. Compl.
¶ 5, i.e., the same 1991 Report he had previously requested,
which the FDIC again withholds under Exemption 7(C). In both
cases, Martin vigorously contested the withholding of the
unredacted document.

         Second, the issue has been “determined by a court of
competent jurisdiction,” Yamaha Corp., 961 F.2d at 254. In the
previous litigation over the 1991 Report, the District Court for
the District of Columbia considered the parties’ respective
motions for summary judgment and rejected Martin’s argument
that the document should be released without redactions because
it contained Brady material. Instead, the court ordered the FDIC
to release reasonably segregable, non-exempt portions of the
1991 Report to Martin, and the FDIC complied. It then granted
summary judgment to the FDIC on the FOIA claims and Martin
appealed. Because we ultimately dismissed that appeal, the
district court’s decision that the FDIC had properly invoked
Exemption 7(C) became the final judgment regarding Martin’s
request for this document. It is well established that a lower
court judgment may have preclusive effect despite the lack of
appellate review. See Johnson Steel Street-Rail Co. v. William
Wharton, Jr., & Co., 152 U.S. 252, 261 (1894). See also
RESTATEMENT (SECOND) OF JUDGMENTS § 13 (1982) (“[F]or
purposes of issue preclusion . . . ‘final judgment’ includes any
prior adjudication of an issue in another action that is
determined to be sufficiently firm to be accorded conclusive
effect.”); Yamaha Corp., 961 F.2d at 254 (“When an issue of
fact or law is actually litigated and determined by a valid and
final judgment, and the determination is essential to the
judgment, the determination is conclusive in a subsequent action
                                13

between the parties.” (quoting RESTATEMENT (SECOND) OF
JUDGMENTS § 27 (1982))); McLaughlin v. Bradlee, 803 F.2d
1197, 1201 (D.C. Cir. 1986) (“[O]nce a court has decided an
issue of fact or law necessary to its judgment, that decision may
preclude relitigation of the issue in a suit on a different cause of
action involving a party to the first case.” (quoting Allen v.
McCurry, 449 U.S. 90, 94 (1980))).

        Third, we see no “basic unfairness” that results from
preclusion of Martin’s claim for the 1991 Report based on the
final decision of the district court in Martin v. FDIC, Civ. No.
97-1368 (D.D.C. Sept. 1, 2000). His incentives to litigate the
point now disputed were no less present in the prior case, nor are
the stakes of the present case of “vastly greater magnitude.” See
Yamaha Corp. 961 F.2d at 254. We see no risk that the “prior
proceedings were seriously defective.” See Blonder-Tongue
Labs., Inc. v. Univ. of Ill. Found., 402 U.S. 313, 333 (1971).
Martin has had ample opportunity to have his challenge heard
and we find no circumstances sufficient to exempt him from the
rules of preclusion. The district court therefore properly held
that Martin was collaterally estopped from challenging the
FDIC’s withholding of the unredacted version of the 1991
Report.

                  B. The 1992 Memorandum

         Both Martin and the NACDL seek the 1992 Memo
because they allege that it, too, contains Brady material. The
FDIC withheld the 1992 Memo under FOIA Exemption 5,
which protects 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); Martin v. Office of Special Counsel, Merit
Sys. Prot. Bd., 819 F.2d 1181, 1184 (D.C. Cir. 1987). As the
district court correctly observed, “[t]his provision applies to
                               14

materials that normally are privileged in the civil discovery
context, including those protected by the attorney work product
privilege . . . .” March 2005 Opinion at 4-5 (citing, inter alia,
NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975);
Martin v. Office of Special Counsel, 819 F.2d 1181, 1184 (D.C.
Cir. 1987)). The district court found that the 1992 FDIC Memo
was protected attorney work-product based on uncontroverted
evidence that it was prepared by an FDIC investigator at the
direction of an FDIC attorney in anticipation of litigation. The
memo contains extensive legal analyses of potential claims
available to the FDIC concerning fraudulent loans. We therefore
agree with the district court that the 1992 Memo qualified for
protection in its entirety as attorney work-product because it
contains facts “integral to the legal analyses and discussions of
investigation strategy.” Judicial Watch, Inc. v. DOJ, 432 F.3d
366, 371 (D.C. Cir. 2005) (“If a document is fully protected as
work product, then segregability is not required.”).

        Appellants argue that the privilege asserted by the FDIC
was waived when the DOJ gave the 1992 Memo to Martin’s
defense counsel in the § 2255 proceeding. We disagree. The
FDIC made no disclosure to Martin’s counsel. Rather, the FDIC
provided another federal government agency, the DOJ, with
relevant documents, including the 1992 FDIC Memo. Such
production of privileged information cannot be a waiver of the
privilege. See 12 U.S.C. § 1821(t) (“A covered agency . . . shall
not be deemed to have waived any privilege applicable to any
information by transferring that information to or permitting that
information to be used by . . . any other agency of the Federal
Government . . . .”).

       Next, appellants argue that, even if the 1992 Memo
might ordinarily be protected under Exemption 5, it must be
disclosed because it contains Brady material and therefore
“should be disclosed routinely to the government’s opponents in
                                15

litigation, not shielded by [Exemption 5].” Appellants’ Br. at 24
(citing Strickler v. Greene, 527 U.S. 263, 281 (1999)).
Appellants are correct that FOIA Exemption 5 will be overcome
by a showing that requested documents “would be ‘routinely’ or
‘normally’ disclosed upon a showing of relevance,”FTC v.
Grolier, 462 U.S. at 26. Appellants’ argument is fatally flawed,
however, because they have failed to demonstrate that the 1992
Memo contains any Brady material. The federal district court in
Texas denied Martin’s § 2255 motion because he “failed to
establish as he must that the government’s failure to disclose the
alleged Brady documents materially affected his conviction or
sentence.” United States v. Martin, Crim. No. 93-0316, Mem.
Op. at 18 (N.D. Tex. May 21, 1999). Appellants effectively
acknowledge this fundamental problem with their claims when
they attempt to invent a new legal category of “intermediate
Brady material.” Appellants’ Br. at 21-22. No such category
exists. If information is not material to conviction or sentencing,
it cannot be Brady material of any type.

         Because the requested document is attorney work-
product that would not have been subject to routine disclosure,
it is properly protected under Exemption 5. We therefore need
not determine whether the memo was also properly withheld
from disclosure under Exemptions 6 and 7(C).

                     C. The FBI Records

        Martin’s request of the FBI is similar to his request of the
FDIC. He seeks “Brady material pertaining to Generelli.” Second
Am. Compl. ¶ 2. Again we conclude that this is an improper
characterization of the requested material. No Brady material is
at issue before us. Therefore, we need only weigh the
government’s claim of exemption against any potential public
interest in non-Brady material. The FBI withheld the requested
information under FOIA Exemption 7(C), which protects
                                16

“records or information compiled for law enforcement purposes”
from disclosure if their production “could reasonably be
expected to constitute an unwarranted invasion of personal
privacy,” 5 U.S.C. § 552(b)(7)(C), and argues that Martin has
failed to provide any counterbalance to the significant privacy
interests asserted by the government. We agree.

         The Supreme Court has observed that the statutory
privacy right protected by Exemption 7(C) is not so limited as
others, see DOJ v. Reporters Comm. for Freedom of Press, 489
U.S. at 762. Contrasting Exemption 7(C) with Exemption 6,
which requires withholding of personnel and medical files only
if disclosure “would constitute a clearly unwarranted invasion of
personal privacy,” the Court recently emphasized Exemption
7(C)’s comparative breadth by noting that it does not include the
adverb “clearly,” and substitutes “could reasonably be expected
to constitute [an unwarranted invasion of privacy]” for “would
constitute” such an invasion. Nat’l Archives & Records Admin.
v. Favish, 541 U.S. 157, 166 (2004) (citing Reporters Comm.,
489 U.S. at 756). Because “[l]aw enforcement documents . . .
often contain information about persons . . . whose link to the
official inquiry may be the result of mere happenstance,” the
Court observed, “[t]here is special reason . . . to give protection
to [] intimate personal data, to which the public does not have a
general right of access in the ordinary course.” Id. (citing
Reporters Comm., 489 U.S. at 780).

         We also note that privacy interests are particularly
difficult to overcome when law enforcement information
regarding third parties is implicated. See Reporters Comm., 489
U.S. at 780 (“privacy interest protected by Exemption 7(C) is . . .
at its apex while the FOIA-based public interest in disclosure is
at its nadir” when requester seeks a private citizen’s criminal
history information within the government’s control); see also
Fitzgibbon v. CIA, 911 F.2d 755, 768 (D.C. Cir. 1990) (rarely
                                17

does a public interest outweigh an individual’s privacy interest
when law enforcement information pertaining to an individual is
sought). “[T]hird parties who may be mentioned in investigatory
files” and “witnesses and informants who provide information
during the course of an investigation” have an “obvious” and
“substantial” privacy interest in their information. Nation
Magazine v. U.S. Customs Serv., 71 F.3d 885, 894 (D.C. Cir.
1995). Indeed, the Supreme Court has made clear that requests
for such third party information are strongly disfavored:

       The FOIA’s central purpose is to ensure that the
       Government’s activities be opened to the sharp
       eye of public scrutiny, not that information
       about private citizens that happens to be in the
       warehouse of the Government be so disclosed.
       Thus . . . in none of our cases construing the
       FOIA have we found it appropriate to order a
       Government agency to honor a FOIA request for
       information about a particular private citizen.

Reporters Comm., 489 at 774. Martin’s allegation that “[o]nly de
minimis . . . privacy interests are implicated by [his] FOIA
requests,” because “[o]pen public court opinions . . . describe
the gist of the Brady material,” Appellants’ Br. at 28, is
unavailing. In Reporters Committee, the Court ruled that a
person’s privacy interest in law enforcement records that name
him is not diminished by the fact that the events they describe
were once a matter of public record. See Reporters Comm., 489
U.S. at 779-80 (protecting privacy interests in “rap sheets”).

        Our conclusion that there is a substantial privacy interest
in protecting the FBI records from disclosure does not, however,
complete our inquiry. The statutory term, “unwarranted,” which
modifies the invasion of privacy prohibited under Exemption
7(C), requires us to balance the asserted privacy interests against
                                18

the potential public interest in disclosure. See Favish, 541 U.S.
at 171 (citing Reporters Comm., 489 U.S. at 762). As we have
recently clarified in a similar case,

       In order to trigger the balancing of public
       interests against private interests, a FOIA
       requester must (1) show that the public interest
       sought to be advanced is a significant one, an
       interest more specific than having the
       information for its own sake, and (2) show the
       information is likely to advance that interest. If
       the public interest is government wrongdoing,
       then the requester must produce evidence that
       would warrant a belief by a reasonable person
       that the alleged Government impropriety might
       have occurred.

Boyd, 475 F.3d at 387 (quoting Favish, 541 U.S. at 172, 174)
(internal quotation marks omitted). In Boyd, we concluded that
“[u]nsubstantiated assertions of government wrongdoing . . . do
not establish ‘a meaningful evidentiary showing,’” Boyd, 475
F.3d at 388 (quoting Favish, 541 U.S. at 175), and with no
“‘counterweight on the FOIA scale for the court to balance
against the cognizable privacy interests in the requested records,’
the challenge to the government’s invocation of Exemption 7(C)
fails,” id. (quoting Favish, 541 U.S. at 174-75). As we have
noted, Martin’s claim of Brady violations fails. Without
determining whether evidence of a Brady violation would merit
FOIA disclosure under these circumstances, we need only
conclude for the purposes of this case that Martin’s “bare
suspicion” was fully litigated and rejected by a court of
competent jurisdiction when it denied his petition for post-
conviction release. The documents withheld by the government
were not material to Martin’s guilt or punishment.
                              19

       The district court thus correctly held that information
regarding a private citizen, John Generelli, housed in law
enforcement files was properly protected pursuant to FOIA
Exemption 7(C).

                              III.

        Accordingly, we affirm the grant of summary judgment
in favor of the government without reaching the district court's
ruling that Brady information is never available under FOIA.
That issue remains an open question in this circuit.



                                                    So ordered.
