193 F.3d 550 (D.C. Cir. 1999)
Salvatore Cottone, Appellantv.Janet Reno, Attorney General of the United States Department of Justice, Appellee
No. 98-5497
United States Court of AppealsFOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 1, 1999Decided October 26, 1999

[Copyrighted Material Omitted]
Appeal from the United States District Court for the District of Columbia(No. 94cv01598)
Edwin E. Huddleson, III argued the cause and filed the  briefs for appellant.
David T. Smorodin, Assistant United States Attorney,  argued the cause for appellee.  With him on the brief were  Wilma A. Lewis, United States Attorney, and R. Craig  Lawrence, Assistant United States Attorney.
Before:  Edwards, Chief Judge, Wald and Williams,  Circuit Judges.
Opinion for the Court filed by Circuit Judge Wald.
Wald, Circuit Judge:


1
The principal question in this case is  whether wiretapped recordings, otherwise exempt from disclosure under the Freedom of Information Act ("FOIA"),  must nevertheless be released when a requester precisely  identifies specific tapes that have been introduced into evidence and played in open court during a public criminal trial.We hold that unless the government can rebut such a specific  showing by demonstrating that the recordings have since  been destroyed or otherwise removed from the public record,  they must be released under FOIA.  We accordingly reverse  the judgment of the district court to the contrary.  Moreover,  because the district court neglected to address whether the  government properly withheld other requested tape recordings, we must remand for further proceedings.

I. Background

2
Arising from a criminal investigation of the Colombian and  Sicilian Mafia's involvement in the Northern Virginia Washington, D.C. drug trade, the government successfully  prosecuted appellant Salvatore Cottone on fourteen counts of  drug and racketeering-related offenses.  See United States v.  Cottone, 928 F.2d 400, 1991 WL 34996 (4th Cir. 1991) (per  curiam) (table).  Among the evidence that the government  marshaled during Cottone's trial were telephone conversations recorded by surreptitious wiretap and recorded conversations procured by undercover agents wearing hidden recorders during face-to-face meetings with Cottone.  In open  court, before the jury and the public gallery, the government  played these tapes and introduced them into evidence.  As is  the practice when tapes are played at trial, however, the court  reporter did not transcribe the contents of the recorded  conversations into the trial transcript.  Rather, with each  tape that the government played, the reporter indicated in  the transcript the precise date and time that the conversation  had been recorded, the unique identification number assigned to that tape at trial, and noted that it had been "played for  the Court and jury."  See, e.g., App. 104-06 (Tape T-101  recorded on Sept. 12, 1986 at 10:32 a.m.);  App. 117 (Tape T102 recorded on Sept. 12, 1986 at 5:02 p.m.);  App. 126-27  (Tape T-105 recorded on Sept. 30, 1986 at 5:45 p.m.);  App.  129-31 (Tape T-107 recorded on Sept. 30, 1986 at 8:34 p.m.);App. 144-45 (Tape T-108 recorded on January 12, 1987 at  12:36 p.m.).  At no point during the trial or thereafter did the  government move to place these tapes under seal.


3
By letter dated January 27, 1992, Cottone tendered a FOIA  request to the Federal Bureau of Investigation ("FBI") for  copies of all documents and tape recordings cross-referenced  to his name, including those tapes that the government had  played for the jury during his trial.  Although the FBI  eventually produced over 1300 pages of responsive documents, it disclosed in part only two tape recordings, each one  heavily redacted pursuant to Exemption 7(C), which insulates  from mandatory disclosure records or information compiled  for law enforcement purposes that, if produced, "could reasonably be expected to constitute an unwarranted invasion of  privacy."  5 U.S.C. § 552(b)(7)(C).  Invoking Exemption 3,  which protects information "specifically exempted from disclosure" by another statute, 5 U.S.C. § 552(b)(3), the FBI  withheld in full all other responsive tape recordings.  Unlike  the two redacted tapes that the FBI produced, these remaining conversations had been obtained by wiretap pursuant to  Title III of the Omnibus Crime Control and Safe Streets Act  of 1968, Pub. L. No. 90-351, 82 Stat. 197 (codified as amended  at 18 U.S.C. §§ 2510-2521 (1994 & Supp. IV 1998)) ("Title  III"), which, we have explained on several occasions, "falls  squarely within the scope of Exemption 3 because its language clearly evinces Congress' intent that intercepted material, except in a few well-defined circumstances, remain secret."  Davis v. United States Dep't of Justice, 968 F.2d 1276,  1280-81 (D.C. Cir. 1992) (quotation omitted);  accord Lam  Lek Chong v. United States Drug Enforcement Admin., 929  F.2d 729, 733-34 (D.C. Cir. 1991).


4
Unsatisfied with the FBI's response to his FOIA request,  Cottone brought suit in the district court.  With respect to the two tapes that the FBI had redacted pursuant to Exemption 7(C), he argued that neither tape jeopardized any legitimate privacy interest because those persons identified on the  tapes had either consented to disclosure or had died.  As for  the remaining tapes putatively protected from disclosure  under Exemption 3, Cottone essentially maintained that the  government had waived its Exemption 3 claim once it placed  those tapes into the public domain by playing them to the  jury and admitting them into evidence during his criminal  trial.  In its initial opinion adjudicating the parties' cross motions for summary judgment and then again in its opinion  disposing of Cottone's motion for reconsideration, the district  court rejected Cottone's waiver argument.  Although acknowledging that otherwise exempt materials lose their privileged status under FOIA once they find their way into the  public domain, the district court found that Cottone had not  met his burden of "showing that there is a permanent record  of the exact portion" of the tapes that he requested.  Cottone  v. FBI, Civ. No. 94-1598 (JR), slip op. at 3 (D.D.C. Oct. 7,  1998).  Having determined that the FBI properly invoked  Exemption 3 to withhold the wiretapped recordings, the  district court granted the agency's motion for summary judgment and dismissed the case.  In neither of its opinions,  however, did the court address whether the FBI properly  invoked Exemption 7(C) to redact most of the two disclosed  tapes.  To this date, the FBI has yet to submit an agency  affidavit and Vaughn index justifying its Exemption 7(C)  redactions.

II. Discussion
A. The Exemption 3 Withholdings

5
Two propositions, each firmly anchored in our prior FOIA  decisions, must be set forth at the outset.  The first is that,  subject to an important, albeit narrow exception, the wiretapped recordings obtained pursuant to Title III that Cottone  requested are ordinarily exempt from disclosure under Exemption 3, 5 U.S.C. § 552(b)(3).  See Davis, 968 F.2d at  1280-81;  Lam Lek Chong, 929 F.2d at 733-34.  The second proposition, however, is the exception that qualifies this otherwise absolute rule.  Under our public-domain doctrine,  materials normally immunized from disclosure under FOIA  lose their protective cloak once disclosed and preserved in a  permanent public record.  See Niagara Mohawk Power Corp.  v. United States Dep't of Energy, 169 F.3d 16, 19 (D.C. Cir.  1999) (Exemption 4);  Public Citizen v. Department of State,  11 F.3d 198, 201-03 (D.C. Cir. 1993) (Exemption 1);  Davis,  968 F.2d at 1276 (Exemptions 3 & 7(C));  Afshar v. Department of State, 702 F.2d 1125, 1130-34 (D.C. Cir. 1983) (Exemptions 1 & 3).  For as we have recently observed, "the  logic of FOIA" mandates that where information requested  "is truly public, then enforcement of an exemption cannot  fulfill its purposes."  Niagara Mohawk, 169 F.3d at 19;  see  also Davis, 968 F.2d at 1279 ("We have held, however, that  the government cannot rely on an otherwise valid exemption  claim to justify withholding information that has been 'officially acknowledged' or is in the 'public domain.' ").


6
With these established principles of law in mind, we turn  now to examine whether the ordinarily exempt Title III wiretapped recordings that Cottone requested entered the  public domain and thereby shed their Exemption 3 protection. On this issue, the party advocating disclosure bears the initial  burden of production;  for were it otherwise, the government  would face the daunting task of proving a negative:  that  requested information had not been previously disclosed.  See  Niagara Mohawk, 169 F.3d at 19;  Davis, 968 F.2d at 1279.To satisfy his burden, Cottone must "point[ ] to specific  information in the public domain that appears to duplicate  that being withheld."  Afshar, 702 F.2d at 1130.


7
This Cottone has done.  As a threshold matter, our decisions construing the venerable common-law right to inspect  and copy judicial records make it clear that audio tapes enter  the public domain once played and received into evidence. See, e.g., In re National Broadcasting Co., 653 F.2d 609, 614  (D.C. Cir. 1981);  United States v. Mitchell, 551 F.2d 1252,  1258 & n.21 (D.C. Cir. 1976), rev'd on other grounds sub nom.  Nixon v. Warner Communications, Inc., 435 U.S. 589 (1978).We have long observed "the general rule ... that a trial is a public event, and what transpires in the court room is public  property."  In re National Broadcasting Co., 653 F.2d at 614  (internal quotations and brackets omitted);  accord Craig v.  Harney, 331 U.S. 367, 374 (1947).  Under this rule, we have  recognized that even after a trial has concluded, members of  the press may obtain copies of surreptitiously recorded audio  tapes that have been played in court and received into  evidence.  See In re National Broadcasting Co., 653 F.2d at  614-16.  Therefore, until destroyed or placed under seal,  tapes played in open court and admitted into evidence--no  less than the court reporter's transcript, the parties' briefs,  and the judge's orders and opinions--remain a part of the  public domain.


8
While our cases leave little doubt that audio tapes aired  publicly in open court become a part of the public domain, the  question remains whether Cottone has satisfied his "burden  of showing that there is a permanent public record of the  exact portions he wishes."  Davis, 968 F.2d at 1280 (emphasis  added).  The government maintains, and the district court  agreed, that our decision in Davis is dispositive.  True, the  plaintiff in Davis, like Cottone, claimed that the public domain doctrine vitiated Exemption 3 protection for Title III wiretapped recordings that had been previously played in  open court during a criminal trial.  But there the similarities  end.  We rejected the plaintiff's waiver argument in Davis  because he could not identify which specific tapes had been  played during trial.  Although the prosecutors had compiled a  "play list" of 163 excerpted tape recordings, not all were used,  "and apparently no one, including the court reporter, kept  any official record of the conversations played for the jury."Id. at 1278.  Under these circumstances, we concluded that it  simply was not enough "to show--as [Davis] ha[d] done--that  some of the tapes were played to shift the burden to the  government."  Id. at 1280.  Indeed, to have compelled disclosure in the face of such uncertainty would have ignored the  "injury that disclosure might cause innocent third parties,"  who we believed, "should not suffer because neither the  government nor [the requester] can establish whether references to them on the tapes are available elsewhere."  Id.


9
Unlike the situation we confronted in Davis, however,  Cottone has demonstrated precisely which recorded conversations were played in open court.  Looking at the official  transcript of Cottone's trial, there are at least five audio tapes  that the court reporter specifically noted had been "played for  the Court and jury" and subsequently admitted into evidence. And for each of these, the trial transcript clearly indicates the  precise date and time that the particular conversation was  recorded and the unique identification number assigned to the  tape.  See, e.g., App. 104-06 (Tape T-101 recorded on Sept.  12, 1986 at 10:32 a.m.);  App. 117 (Tape T-102 recorded on  Sept. 12, 1986 at 5:02 p.m.);  App. 126-27 (Tape T-105 recorded on Sept. 30, 1986 at 5:45 p.m.);  App. 129-31 (Tape T-107  recorded on Sept. 30, 1986 at 8:34 p.m.);  App. 144-45 (Tape  T-108 recorded on January 12, 1987 at 12:36 p.m.).  With  such a specific showing, we are not left to guess which tapes  have entered the public domain and which have not.  In turn,  we may carefully tailor the FBI's disclosure duty to ensure  that we do not jeopardize the legitimate privacy interests of  innocent third parties whose names may be mentioned on  other Title III tapes never played during trial.  Cottone,  therefore, has discharged his burden of production by pointing to specific tapes which, having been played in open court  and received into evidence, reside in the public domain and  mirror precisely the information that he has requested.


10
To be sure, we suggested in Davis that, to satisfy the  burden of production in public-domain cases, the FOIA requester may have to produce a "hard copy" version of what  he requests.  See Davis, 968 F.2d at 1280.  Yet by no means  did Davis purport to establish a uniform, inflexible rule  requiring every public-domain claim to be substantiated with  a hard copy simulacrum of the sought-after material.  Of  course, it will very often be the case that some type of hard  copy facsimile will be the only practicable way for a FOIA  requester to demonstrate that the specific information he has  solicited has indeed circulated into the public domain.  And  this is as it should be;  for while the "logic of FOIA" postulates that an exemption can serve no purpose once information--including sensitive law-enforcement intelligence--be-comes public, Niagara Mohawk, 169 F.3d at 19, we must be  confident that the information sought is truly public and that  the requester receive no more than what is publicly available  before we find a waiver.  See Fitzgibbon v. CIA, 911 F.2d 755,  765 (D.C. Cir. 1990);  Afshar, 702 F.2d at 1130-32;  Military  Audit Project v. Casey, 656 F.2d 724, 752 (D.C. Cir. 1981).But here it would be an empty formalism to insist that  Cottone produce a hard-copy, verbatim transcription of the  audio tapes to prove which tapes were played at trial when he  has already produced a certified transcript from his trial that  indicates precisely which tapes were, in fact, played.  Phrased  in the parlance of our public-domain cases, Cottone has  "point[ed] to specific information in the public domain that  appears to duplicate that being withheld."  Afshar, 702 F.2d  at 1130.


11
Once the FOIA requester has carried his burden of production, it is up to the government, if it so chooses, to rebut the  plaintiff's proof by demonstrating that the specific tapes or  records identified have since been destroyed, placed under  seal, or otherwise removed from the public domain.  The  FBI, however, has made no such showing here.  Nothing in  the record suggests that the government, either during or  after Cottone's trial, moved to place under seal the tapes that  it played in court.  Nor is there any indication that the tapes  Cottone has identified have since been destroyed.  Indeed,  the FBI operates under a statutory mandate to preserve all  Title III-wiretapped recordings for ten years.  See 18 U.S.C.  § 2518(8)(a).  Therefore, because Cottone has identified specific audio tapes in the public domain that duplicate what he  has requested, and because the FBI has not rebutted this  showing, we conclude that Exemption 3 is inapplicable and  reverse the judgment of the district court accordingly.


12
Our decision, however, extends only to those tapes that  were played in open court.  To the extent that Cottone seeks  Title III-wiretapped recordings that were not played in court  but were simply provided to his counsel as Brady material,  Exemption 3 remains inviolate.  This is so because a constitutionally compelled disclosure to a single party simply does not  enter the public domain.  Moreover, even were these tapes somehow understood to reside in the public domain, Cottone  certainly has not satisfied his burden of production and shown  which specific tapes the government tendered to his attorney  during pretrial discovery.  Therefore, insofar as Cottone  seeks any Title III-wiretapped tapes that were not played in  open court and received into evidence, the judgment of the  district court is affirmed.

B. The Exemption 7(C) Withholdings

13
In his cross-motion for summary judgment Cottone argued  that the FBI had improperly invoked Exemption 7(C) to  redact virtually all portions of the two audio tapes that the  agency had released.  For some reason, the district court  never ventured beyond Cottone's Exemption 3 objections,  dismissing the case without evaluating the propriety of the  FBI's Exemption 7(C) claim.  Notwithstanding the district  court's oversight, on appeal the FBI maintains that the case  was properly dismissed anyway since, by its own determination, it validly applied Exemption 7(C).


14
Even were we inclined to review the agency's Exemption  7(C) redactions without first remanding to the district court,  the present record would preclude us from meaningfully  exercising our power of judicial review.  To justify its invocation of a particular exemption, the agency must append a  declaration to its motion for summary judgment that "provide[s] detailed and specific information demonstrating 'that  material withheld is logically within the domain of the exemption claimed.' "  Campbell v. United States Dep't of Justice,  164 F.3d 20, 30 (D.C. Cir. 1999) (quoting King v. United  States Dep't of Justice, 830 F.2d 210, 217 (D.C. Cir. 1987));see also Vaughn v. Rosen, 484 F.2d 820, 827 (D.C. Cir. 1973).This the FBI has completely failed to do.  All that the agency  can point to is an unsworn cover letter sent to Cottone from  an official with the FBI that conclusorily asserts that "[t]he  long pauses constitute exempt information, much of it pertaining to third parties."  App. 181.  We, therefore, must  remand this matter to the district court, which should instruct  the FBI to prepare a Vaughn index and declaration that  "supply a relatively detailed justification, specifically identifying the reasons why a particular exemption is relevant and  correlating those claims with the particular part of [the]  withheld [tape] to which they apply." King, 830 F.2d at 224  (internal quotation omitted).

III. Conclusion

15
For the foregoing reasons, we reverse the district court's  judgment upholding the FBI's decision to withhold under  Exemption 3 audio tapes that Cottone has precisely identified  in the public domain, and remand with instructions to compel  the FBI to release those tapes.  In all other respects, we  affirm the district court's judgment that Exemption 3 applies  to Title III-wiretapped conversations.  On remand, the district court should also order the FBI to prepare a Vaughn  index justifying its redactions under Exemption 7(C).


16
So ordered.

