Campbell v. United States Department of Justice

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 19, 1998 Decided December 29, 1998

No. 97-5269

James Campbell,

Appellant

v.

United States Department of Justice,

Appellee

Appeal from the United States District Court

for the District of Columbia

(No. 89cv03016)

James H. Lesar argued the cause and filed the briefs for

appellant.

Fred E. Haynes, Assistant U.S. Attorney, argued the cause

for appellee. With him on the brief were Wilma A. Lewis,

U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attor-

ney. Brian J. Sonfield, Assistant U.S. Attorney, entered an

appearance.

Before: Williams, Ginsburg and Rogers, Circuit Judges.

Opinion for the Court filed by Circuit Judge Rogers.

Rogers, Circuit Judge: James Campbell appeals from the

grant of summary judgment to the Department of Justice in

an action under the Freedom of Information Act ("FOIA")

seeking Federal Bureau of Investigation ("FBI") records

about author and civil rights activist James Baldwin. Camp-

bell contends that the FBI has conducted an inadequate

search for documents responsive to his FOIA request, that

the declarations in support of the FBI's invocation of FOIA's

national security and law enforcement exemptions are insuffi-

ciently detailed to establish the absence of a genuine dispute

of material fact, and that the district court erred in affirming

the FBI's denial of Campbell's request for a complete waiver

of fees. We agree with these contentions, in part because

this circuit's FOIA jurisprudence has advanced while the

lawsuit has stood relatively still, and we therefore reverse and

remand the case to the district court for further proceedings.

I.

This case arises from a scholar's efforts to unearth artifacts

from an awkward period in the history of the FBI. See, e.g.,

Hobson v. Wilson, 737 F.2d 1, 9-13 (D.C. Cir. 1984) (describ-

ing the FBI's COINTELPRO investigations). In 1988, Ap-

pellant James Campbell was writing a biography about James

Baldwin, a noted author and leader in the civil rights move-

ment. To obtain information for use in his forthcoming book,

Campbell submitted a FOIA request to the New York office

of the FBI in which he sought "the FBI file" on Baldwin.

The parties exchanged correspondence and the New York

and national FBI offices identified and produced a limited

number of responsive documents, often in redacted form.

These documents, only some of which are in the appellate

record, suggest that the FBI monitored Baldwin's civil rights

activities and contacts with alleged communists during the

1960s. The parties eventually reached an impasse about the

scope of the FBI's disclosure obligations. After exhausting

his administrative remedies, Campbell filed suit in November

1989 for injunctive relief compelling the Justice Department

to produce requested documents and waive copying fees.

Over the course of the next year, the FBI released additional

documents. In 1991, Campbell published "Talking at the

Gates: A Life of James Baldwin."

Between 1991 and 1996, Campbell's case languished in

district court as various stays permitted the FBI to review

documents and respond to new judicial interpretations of

FOIA. In September 1996, the district court partially grant-

ed the Justice Department's motion for summary judgment.

The court concluded that the FBI had conducted an adequate

search, properly invoked exemptions to FOIA, and estab-

lished an appropriate copying fee. After conducting an in

camera inspection of a file labeled "miscellaneous law en-

forcement," the court also concluded that the Department had

properly invoked FOIA's law enforcement exemption, and in

August 1997 granted summary judgment to the Department

on that file as well. The court denied Campbell's cross

motion for summary judgment, except with regard to a

limited category of information related to certain investigative

techniques that the court ordered be disclosed. Campbell

appeals the September 1996 and August 1997 summary judg-

ment orders.

II.

A. Adequacy of the search. Viewing the FOIA terrain

with an eye toward providing guidance to agencies consistent

with congressional intent, the court explained with respect to

an adequacy-of-search claim in Oglesby v. United States Dep't

of the Army, 920 F.2d 57 (D.C. Cir. 1990), that "the agency

must show that it made a good faith effort to conduct a search

for the requested records, using methods which can be rea-

sonably expected to produce the information requested." Id.

at 68. "If, however, the record leaves substantial doubt as to

the sufficiency of the search, summary judgment for the

agency is not proper." Truitt v. Department of State, 897

F.2d 540, 542 (D.C. Cir. 1990). The court applies a "reason-

ableness" test to determine the "adequacy" of a search meth-

odology, Weisberg v. United States Dep't of Justice, 705 F.2d

1344, 1351 (D.C. Cir. 1983), consistent with congressional

intent tilting the scale in favor of disclosure. See, e.g., John

Doe Agency v. John Doe Corp., 493 U.S. 146, 151-52 (1989).

The record indicates that the FBI limited its search for

information about James Baldwin to files that it could locate

by searching its Central Records System (CRS) index, which

is capable of locating most, but not all, documents responsive

to a general request for information about a particular sub-

ject. The district court rejected Campbell's claim that the

FBI had conducted an inadequate search because it failed to

check a separate electronic surveillance (ELSUR) index and

to search for "tickler"1 files even though documents that the

FBI did produce alluded to potentially responsive ELSUR

and tickler records.2 The FBI has not offered any evidence

to rebut Campbell's claim that some of the Bureau's docu-

ments suggest--through administrative annotations and ex-

press references in the text3--that searching the ELSUR

index, or searching for ticklers, would have identified addi-

__________

1 A "tickler" is a duplicate file containing copies of documents,

usually kept by a supervisor. Such files can be of interest to a

FOIA requester because they could contain documents that failed to

survive in other filing systems or that include unique annotations.

2 Our review of the record indicates that Campbell properly

raised this claim in the district court. We therefore reject the

Department's waiver defense. See District of Columbia v. Air

Florida, Inc., 750 F.2d 1077, 1084-85 (D.C. Cir. 1984).

3 For example, document 147A on the Vaughn index bears a

notation showing that it was routed to "Supervisor #42." Campbell

has submitted unrebutted evidence that such a notation indicates

the existence of a tickler file. Lesar Decl. p 3. Of course, to the

extent that the FBI can demonstrate that this reference suggests

the existence of only a particular type of tickler file, or one located

in a particular place, it need not search for all tickler files that

might be located anywhere; the scope of the FBI's search for

ticklers need only be as broad as is reasonable in light of the

evidence compelling such a search.

tional information about James Baldwin.4 Instead, the FBI

contends that ELSUR and tickler searches are unnecessary

in the vast majority of cases, and that it therefore need not

conduct such searches unless expressly asked to do so in a

FOIA request. Because Campbell's request asked only for

"the FBI file" on Baldwin, the FBI maintains that it acted

reasonably by searching only the CRS index.

We will assume that the FBI's characterization of ELSUR

and tickler searches is correct, and that such searches rarely

uncover information beyond the scope of a CRS search. It

follows from this assumption that in most cases, the FBI need

not conduct ELSUR and tickler searches when the FOIA

requester does not expressly ask it to do so. FOIA demands

only a reasonable search tailored to the nature of a particular

request. When a request does not specify the locations in

which an agency should search, the agency has discretion to

confine its inquiry to a central filing system if additional

searches are unlikely to produce any marginal return; in

other words, the agency generally need not "search every

record system." Oglesby, 920 F.2d at 68.

However, an agency "cannot limit its search to only one

record system if there are others that are likely to turn up

the information requested." Id. Campbell maintains, with-

out contradiction by affidavit or otherwise, that documents

produced by the FBI establish that the Bureau placed Bald-

win under electronic surveillance and maintained at least one

tickler file pertinent to its investigation. An agency has

discretion to conduct a standard search in response to a

__________

4 The record suggests that the New York FBI office--as

opposed to FBI Headquarters--did search its local ELSUR index.

At oral argument, however, the Department was not able to confirm

that such a search occurred. This factual ambiguity is not material

on appeal because even if the New York office had searched its

ELSUR index, the national office would still have been obliged to

search its own index if it had cause to believe that such a search

would identify responsive information. Moreover, the need for an

ELSUR search should have been apparent in light of a memoran-

dum produced by the FBI which states that the New York FBI

office maintained a "log reflecting the surveillance of ... Baldwin."

general request, but it must revise its assessment of what is

"reasonable" in a particular case to account for leads that

emerge during its inquiry. Consequently, the court evaluates

the reasonableness of an agency's search based on what the

agency knew at its conclusion rather than what the agency

speculated at its inception. Here, the FBI started with the

reasonable assumption that only a CRS review would be

necessary, but that assumption became untenable once the

FBI discovered information suggesting the existence of docu-

ments that it could not locate without expanding the scope of

its search. Cf. Kowalczyk v. Department of Justice, 73 F.3d

386, 389 (D.C. Cir. 1996). In resisting this conclusion, the

Department maintains that the "weight of authority" justifies

refusing to supplement a CRS search with an ELSUR search

unless specifically asked to do so within the FOIA request.

In fact, such authority indicates that the FBI must search

ELSUR in addition to CRS in response to a general FOIA

request for which ELSUR may be relevant. See Biberman v.

FBI, 528 F.Supp. 1140, 1144-45 (S.D.N.Y. 1982); Larouche v.

Webster, 1984 WL 1061, *2 (S.D.N.Y. 1984); cf. Schrecker v.

United States Dep't of Justice, 14 F.Supp. 2d 111, 119 (D.D.C.

1998). Moreover, the FBI appears in many cases to have

searched ELSUR without being asked to do so. See Hart v.

FBI, 1996 WL 403016 at *2 (7th Cir. 1996); Marks v. United

States, 578 F.2d 261, 263 (9th Cir. 1978); Canning v. United

States Dep't of Justice, 848 F. Supp. 1037, 1050 (D.D.C.

1994).5

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5 Other cases on which the Department relies do not support its

argument. In Frydman v. Department of Justice, 852 F. Supp.

1497 (D. Kan. 1994), aff'd mem., 57 F.3d 1080 (10th Cir. 1995), the

district court criticized the FBI's failure to search ELSUR until

specifically requested to do so, but held that the lapse was not "bad

faith" within the context of the plaintiff's claim for attorney's fees.

852 F. Supp. at 1505-06. This holding is hardly an endorsement of

the Department's position. In Ferguson v. Kelly, 455 F. Supp. 324

(N.D. Ill. 1978), the court denied plaintiff's motion for reconsidera-

tion of summary judgment in light of plaintiff's recent discovery of

the existence of ELSUR. The odd procedural posture of Ferguson,

coupled with its thin reasoning, render it an unpersuasive prece-

The Department also asserts that the existence of ticklers

in its archives is "speculative" because ticklers are not gener-

ally preserved for posterity and also might not contain infor-

mation distinct from what the FBI already found within the

CRS. It is true that Campbell has claimed only that a tickler

existed at one time, not that it exists today or that it contains

unique information. Yet in any FOIA request, the existence

of responsive documents is somewhat "speculative" until the

agency has finished looking for them. As the relevance of

some records may be more speculative than others, the

proper inquiry is whether the requesting party has estab-

lished a sufficient predicate to justify searching for a particu-

lar type of record. Cf. Meeropol v. Meese, 790 F.2d 942, 953

(D.C. Cir. 1986). Here, the FBI does not deny that such a

predicate exists, rendering its "speculation" claim irrelevant.

Cf. Oglesby v. United States Dep't of the Army, 79 F.3d 1172,

1185 (D.C. Cir. 1996); Schrecker, 14 F. Supp. 2d at 119.

For these reasons we conclude that the district court erred

in finding that an adequate search had been made, and

remand the case so that the FBI can be afforded an opportu-

nity to search for tickler and ELSUR records responsive to

Campbell's FOIA request, and to proceed as the results of

such searches require.6

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dent. Finally, the Department cites three cases for the general

proposition that a CRS search is a sufficient response to a general

FOIA request that does not identify specific locations to search.

See Master v. FBI, 926 F. Supp. 193, 196 (D.D.C. 1996), aff'd mem.,

124 F.3d 1309 (D.C. Cir. 1997); Lawyers Comm. for Human Rights

v. INS, 721 F.Supp. 552, 566-67 & n.12 (S.D.N.Y. 1989); Friedman

v. FBI, 605 F. Supp. 306, 311 (N.D. Ga. 1981). None of these

opinions indicates that the plaintiff had objected to the lack of an

ELSUR search or that such a search might have been productive;

indeed, none even mentions ELSUR.

6 Campbell also challenges the adequacy of the FBI's search

because it failed to locate two documents that the FBI provided to

other FOIA requesters and one document that the FBI apparently

lost. While any omission in a FOIA search is potentially troubling,

the inadvertent omission of three documents does not render a

search inadequate when the search produced hundreds of pages

B. Exemption 1 (National Security). FOIA authorizes

an agency to withhold requested material if it is "properly

classified" in the "interest of national defense or foreign

policy" pursuant to an applicable executive order. 5 U.S.C.

s 552(b)(1). In the instant case, the FBI invoked the nation-

al security exemption to redact documents and withhold at

least two entire documents. The sole justification in the

record for the FBI's classification decision is a nine-year old

declaration from Special Agent Earl E. Pitts generally attest-

ing to the sensitivity of the withheld information and the

general importance of safeguarding national security. On

appeal, Campbell contends both that the district court failed

to require the FBI to reevaluate its classifications under a

new executive order and that the Pitts declaration is "too

conclusory to support summary judgment." We find no error

with regard to the executive order applied but agree that the

district court erred in concluding that the Pitts declaration

was sufficiently detailed to support withholding disclosure of

certain materials.

On the threshold issue of which executive order governs

the FBI's national security determinations, the Department

favors application of E.O. 12356 ("the Reagan Order"), which

was in effect at the time that the FBI made the classification

decisions at issue in this case, while Campbell proposes E.O.

12958 ("the Clinton Order"), which took effect during the

pendency of the district court proceedings. A district court

may, upon request by an agency, permit the agency to apply

a superceding executive order during the pendency of FOIA

litigation. See Baez v. United States Dep't of Justice, 647

F.2d 1328, 1334 (D.C. Cir. 1980). However, absent a request

by the agency to reevaluate an exemption 1 determination

based on a new executive order, the district court may not

require the agency to apply the new order; instead, the court

must evaluate the agency's decision under the executive order

in force at the time the classification was made. See King v.

United States Dep't of Justice, 830 F.2d 210, 216-17 (D.C.

Cir. 1987); Lesar v. United States Dep't of Justice, 636 F.2d

__________

that had been buried in archives for decades. See Meeropol, 790

F.2d at 952-53.

472, 480 (D.C. Cir. 1980). This rule prevents undue delay and

burden in the resolution of FOIA claims by introducing an

element of finality into agency decisionmaking. See Lesar,

636 F.2d at 480. It follows that the district court properly

applied the Reagan Order because the FBI did not seek leave

to reconsider its position in light of the Clinton Order.

However, Lesar did not purport to create a general rule

about the non-applicability of superceding executive orders in

ongoing FOIA cases. Rather, the opinion relied in part on an

interpretation of the superceding executive order, which the

court found to be expressly prospective because it preserved

all classification decisions made under prior orders. See id.

The mere fact that the Clinton Order came into force after

the classification decisions in the instant case therefore does

not in and of itself preclude application of the Order under

Lesar. Instead, the question is whether the Clinton Order

calls prior classification decisions under the Reagan Order

into question.7 We conclude that the Clinton Order does not

permit FOIA litigants to reopen classification decisions final-

ized before the Order's effective date. As with the order

reviewed in Lesar, the Clinton Order defines classified infor-

mation to include information classified under prior orders.

See E.O. 12958 s 1.1(c). Moreover, the Clinton Order does

not contain any provision that requires an agency to reconsid-

er classification decisions in pending FOIA litigation.

Campbell nevertheless contends that the Clinton Order is

"remedial" and therefore requires a remand. Executive or-

ders that replace a prior order are likely to be remedial in

that they correct some perceived deficiency in the prior

regime. Thus, the relevant question is not whether the new

order materially differs from the old, but rather whether the

new order confines its disagreement with the past to reme-

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7 This reasoning is consistent with King, which has language in

it that appears to characterize Lesar as creating a per se rule

applicable to all future transitions between executive orders. See

830 F.2d at 217. A careful reading of King reveals, however, that

the court expressly recognized that Lesar relied on a "carry-over

provision" in the superceding executive order that preserved classi-

fication decisions made under the prior order. Id. at 216.

dies that operate in the future, or instead creates a retrospec-

tive remedy that allows a FOIA litigant to reopen an other-

wise final review. While, as Campbell observes, the Clinton

Order substantially alters the process for declassifying rela-

tively old documents, see, e.g., E.O. 12958 ss 3.3(e) & 3.6,

nothing in the Order requires the district court to apply the

new standards in a pending FOIA action.

Turning to the merits of Campbell's challenge to the FBI's

decisions under exemption 1, we note that the Department's

sole explanation and defense of the FBI's exemption 1 classi-

fications is the Pitts declaration and accompanying appendi-

ces.8 An agency bears the burden to justify exemptions

under FOIA. See PHE, Inc. v. Department of Justice, 983

F.2d 248, 250 (D.C. Cir. 1993). One way to discharge this

burden is to submit a declaration from an appropriately

qualified official attesting to the basis for the agency's deci-

sion. In the context of national security exemptions, such

declarations merit "substantial weight." King, 830 F.2d at

217; Military Audit Project v. Casey, 656 F.2d 724, 737 (D.C.

Cir. 1981). However, deference is not equivalent to acquies-

cence; the declaration may justify summary judgment only if

it is sufficient "to afford the FOIA requester a meaningful

opportunity to contest, and the district court an adequate

foundation to review, the soundness of the withholding."

King, 830 F.2d at 218. Among the reasons that a declaration

might be insufficient are lack of detail and specificity, bad

faith, and failure to account for contrary record evidence.

See id. Here, only detail and specificity are at issue.

To justify summary judgment, a declaration must provide

detailed and specific information demonstrating "that materi-

__________

8 The appendices consist of redacted documents marked with a

coded annotation and a catalog explaining the meaning of each code.

Campbell suggests that this system of marking documents is inher-

ently flawed. However, the court has previously stated that this

methodology for explaining classification decisions can be sufficient

provided that it complies with the substantive requirements noted

above, which are applicable to any methodology for processing

FOIA exemptions. See Keys v. United States Dep't of Justice, 830

F.2d 337, 349-50 (D.C. Cir. 1987).

al withheld is logically within the domain of the exemption

claimed." King, 830 F.2d at 217. "[A]n affidavit that con-

tains merely a 'categorical description of redacted material

coupled with categorical indication of anticipated conse-

quences of disclosure is clearly inadequate.' " PHE, 983 F.2d

at 250 (quoting King, 830 F.2d at 224). Or as the court

stated in Hayden v. National Sec. Agency, 608 F.2d 1381,

1387 (D.C. Cir. 1979), "the affidavits must show, with reason-

able specificity, why the documents fall within the exemption.

The affidavits will not suffice if the agency's claims are

conclusory, merely reciting statutory standards, or if they are

too vague or sweeping." Id. (footnote omitted). These re-

quirements are consistent with the agency's general obli-

gation to create "as full a public record as possible, concern-

ing the nature of the documents and the justification for

nondisclosure." Id. at 1384.

The Pitts declaration cannot satisfy the foregoing stan-

dards. Notably, the Pitts declaration does not contain any

specific reference to Baldwin or any other language suggest-

ing that the FBI tailored its response to a specific set of

documents. Cf. Wiener v. FBI, 943 F.2d 972, 979 (9th Cir.

1991). More importantly, the declaration fails to draw any

connection between the documents at issue and the general

standards that govern the national security exemption. For

example, the declaration states that "[a]ll of the intelligence

activities or methods detailed in the withheld information are

currently utilized by the FBI" and that disclosure of intelli-

gence methods is undesirable. However, the declaration

makes no effort to assess how detailed a description of these

Hoover-era methods the documents provide, and whether

disclosure would be damaging in light of the degree of detail.

Similar failures to connect general statements about the

content of the withheld documents with general standards for

classifying information appear elsewhere in the declaration.

The Department's explanation for the declaration's lack of

detail is that providing more detail would "risk[ ] the disclo-

sure of the very information that the FBI was attempting to

protect." The court has acknowledged that requiring too

much detail in a declaration could defeat the point of the

exemption, but concluded nonetheless that in most cases the

agency should not have difficulty describing the context and

nature of the withheld information without revealing its sub-

stance. See Hayden, 608 F.2d at 1385. Only in special

circumstances, such as those surrounding the intelligence

mission of the National Security Agency, can even minimal

detail itself constitute sensitive information. See id.9 Here

the information appears to describe no more than routine

FBI surveillance and monitoring techniques. Such activity

no doubt generates material that may properly be classified

and withheld under FOIA, but it is implausible to baldly

assert that such material is so sensitive that the FBI is

incapable of providing any descriptive information. Likewise,

summary judgment was inappropriate with respect to two

documents, comprising six pages, that the FBI withheld

without providing any details (including date) in the Pitts

declaration10 or elsewhere because a conclusory assertion that

material is exempt and nonsegrable is insufficient to support

nondisclosure. See, e.g., Kimberlin v. Department of Justice,

139 F.3d 944, 950 (D.C. Cir. 1998).

On remand, the district court can either review the docu-

ments in camera or require the FBI to provide a new

declaration. See PHE, 983 F.2d at 253. The latter course is

favored where agency affidavits are facially inadequate; oth-

erwise the district court is effectively left to speculate about

why an agency may be able to classify a document and cannot

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9 In such circumstances, "the solution is for the court to review

the document in camera" rather than passively accept an agency's

unsubstantiated exemption 1 defense. Simon v. Department of

Justice, 980 F.2d 782, 784 (D.C. Cir. 1992).

10 The Department's brief cites paragraphs 22 and 23 of the

Pitts declaration to support withholding these two documents, but

the cited paragraphs are boilerplate that make no reference to the

disputed material. Indeed, paragraphs 22 and 23 apply solely to

material that was redacted rather than entirely withheld because

they invite the reader to review unredacted portions of documents

to discern the "context" for the deletions. Such review is of course

impossible here.

review a concrete classification decision.11 See id. A new

declaration need not exhaustively explain each redaction and

withholding, but it must provide sufficient information to

permit Campbell and the district court to understand the

foundation for and necessity of the FBI's classification deci-

sions. See King, 830 F.2d at 218.

C. Exemption 7 (Law Enforcement). FOIA exempts

from disclosure six categories of documents that have been

"compiled for law enforcement purposes." 5 U.S.C.

s 552(b)(7)(A)-(F). The FBI withheld information based on

various sub-categories of this law enforcement exemption.

The district court concluded that the withheld information

was compiled for a law enforcement purpose and fit within

one of the subcategories within exemption 7. With respect to

all but one set of documents, the district court relied on the

FBI's declarations. However, the district court did not find

the declarations adequate to justify withholding a file labeled

"miscellaneous law enforcement" and instead conducted an in

camera review, thereafter concluding that most of the file had

been properly withheld, but ordering a small supplemental

disclosure to Campbell.12

On appeal, Campbell contends first, that the FBI's declara-

tions were insufficient to establish a rational nexus between

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11 In preparing a new declaration on remand, the FBI's new

declarant (assuming that Mr. Pitts is no longer available) presum-

ably must re-review the redactions and withholdings. The Clinton

Order will govern this review. See King, 830 F.2d at 216; Afshar v.

Department of State, 702 F.2d 1125, 1137 (D.C. Cir. 1983). This

rule is consistent with our reasoning in Lesar: when an agency has

completed a FOIA review, principles of finality weigh against

ordering a new review under a new order, but when a court orders

a new review on other grounds, respect for the President's authori-

ty to define national security priorities requires that the new review

proceed under current law rather than the superceded law of a

prior administration. See King, 830 F.2d at 217.

12 Although Campbell has also appealed from the district

court's August 1997 order, his brief does not address the materials

the withheld material and a legitimate law enforcement pur-

pose, and second, that information was improperly withheld

under exemptions 7(C) (invasion of personal privacy) and 7(D)

(disclosure of confidential sources). We agree with Camp-

bell's first contention and therefore remand to the district

court for further development of the record. With that

remand in mind, and in the hope of bringing resolution to this

1988 FOIA request, we comment briefly on Campbell's 7(C)

and 7(D) contentions.

Because the FBI specializes in law enforcement, its deci-

sion to invoke exemption 7 is entitled to deference. See Pratt

v. Webster, 673 F.2d 408, 419 (D.C. Cir. 1982). This court's

"deferential" standard of review is not, however, "vacuous."

Id. at 421. If the FBI relies on declarations to identify a law

enforcement purpose underlying withheld documents, such

declarations must establish a rational "nexus between the

investigation and one of the agency's law enforcement duties,"

id. at 421, and a connection between an "individual or incident

and a possible security risk or violation of federal law." Id.

at 420. If the declarations "fail to supply facts" in sufficient

detail to apply the Pratt rational nexus test, then a court may

not grant summary judgment for the agency. Quinon v.

FBI, 86 F.3d 1222, 1229 (D.C. Cir. 1996); see also Davin v.

United States Dep't of Justice, 60 F.3d 1043, 1056 (3d Cir.

1995).

The Department has identified only two facts to establish

that documents relating to James Baldwin were compiled for

a law enforcement purpose. First, the FBI relies on a

declaration from Special Agent Regina Superneau in which

she lists the names of the files containing withheld informa-

tion. The relevant labels are: "Interstate Transportation of

Obscene Material," "Security Matter--Communism," and "In-

ternal Security."13 The fact that information is stored inside

__________

that the district court reviewed in camera. We therefore affirm the

district court's order with respect to those exemption 7 materials.

13 The Department's brief does not reference a file labeled

"Racial Matter" despite the fact that the declaration indicates that

a folder with an official-sounding label is insufficient standing

alone to uphold nondisclosure. See, e.g., Simon, 980 F.2d at

784; Keys, 830 F.2d at 341. Indeed, the Department's posi-

tion reduces to the long-rejected claim that anything in an

FBI file pertains to an exempt law enforcement purpose. See

Pratt, 673 F.2d at 415. At a minimum, the FBI must

demonstrate the relationship between a record and its label

and between the label and a law enforcement purpose.

Second, the Department relies on a statement in the decla-

ration of Special Agent Debra Mack that "[t]he FBI investi-

gation of James Baldwin was predicated upon the fact that

established security sources of the FBI had indicated that

James Baldwin was associating with persons and organiza-

tions which were believed to be a threat to the security of the

United States." If this statement were offered to justify

exemption of a particular document, it might suffice provided

it contained sufficient detail about the scope of the association

and the nature of the threat. The problem, however, is that

the Department relies on this statement to justify every

withholding from each of at least three files collected over

many years on different topics in different contexts. The

FBI appears to maintain that once it can justify its investiga-

tion of a person, all documents related to that person are

exempt from FOIA, even if the documents were collected for

a different reason. This position is untenable. Rather, to

justify summary judgment under exemption 7, the FBI must

explain why each withheld document or set of closely similar

documents relate to a particular law enforcement purpose.

The Mack declaration does not attempt this inquiry. Thus,

although the FBI may possess some documents related to a

valid law enforcement investigation of James Baldwin, we

cannot conclude that each withheld document about James

Baldwin related to such an investigation. Absent a sufficient

threshold showing that the withheld information was "com-

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this was a law enforcement file. On remand, the district court

should determine whether information was withheld from this file

and whether it is related to a legitimate law enforcement purpose.

piled for law enforcement purposes," we reverse; on remand

the FBI may again attempt to meet its statutory burden.

See Summers v. Department of Justice, 140 F.3d 1077, 1083

(D.C. Cir. 1998).

Exemption 7(C) bars disclosures that "could reasonably be

expected to constitute an unwarranted invasion of personal

privacy." 5 U.S.C. s 552(b)(7)(C). An agency may not with-

hold records under exemption 7(C) solely because disclosure

would infringe legitimate privacy interests, but must balance

privacy interests against the public's interest in learning

about the operations of its government. See United States

Dep't of Defense v. Federal Labor Relations Auth., 510 U.S.

487, 495 (1994); United States Dep't of Justice v. Reporters

Comm. for Freedom of the Press, 489 U.S. 749, 762 (1989).

The record suggests that the FBI made an abstract attempt

to identify possible public interests in disclosure and accorded

these interests surprisingly little weight. This attitude is

troubling given the presumption of openness inherent in

FOIA, see Department of Air Force v. Rose, 425 U.S. 352, 361

(1976), and the obvious historical value of documents describ-

ing the FBI's role in the cold war and in the civil rights

movement. Undoubtedly there are important privacy rights

of individuals caught in the web of a wide-ranging criminal

investigation that warrant protection, but the balancing pro-

cess in the instant case appears to have been somewhat of an

empty formality. On remand, the FBI will have the opportu-

nity to provide additional explanation about the relative

weight of the competing public and private interests at stake,

and the district court will have an opportunity to provide an

analysis that will "fully articulate the balance it reaches" and

resolve "fact-intensive" issues to permit "efficient and mean-

ingful" appellate review. Summers, 140 F.3d at 1083.

Insofar as Campbell contends that the FBI has wrongfully

invoked exemption 7(C) to protect the privacy of people who

are dead, two questions are presented: how does death affect

the exemption 7(C) balancing calculus, and what must the

FBI do to ascertain whether the persons whose privacy it

seeks to protect have died. First, death clearly matters, as

the deceased by definition cannot personally suffer the

privacy-related injuries that may plague the living. A court

balancing public interests in disclosure against privacy inter-

ests must therefore make a reasonable effort to account for

the death of a person on whose behalf the FBI invokes

exemption 7(C). See Summers, 140 F.3d at 1084-85 (Silber-

man, J., concurring); id. at 1085 (Williams, J., concurring);

Kiraly v. Federal Bureau of Investigation, 728 F.2d 273, 277-

78 (6th Cir. 1984).14 The court must also account for the fact

that certain reputational interests and family-related privacy

expectations survive death. As was recently pointed out by

the Supreme Court in Swidler & Berlin v. United States, 118

S. Ct. 2081, 2086 (1998), the attorney-client privilege survives

the death of the client, who "may be concerned about reputa-

tion, civil liability, or possible harm to friends or family."

This instruction by the Court would appear to undercut the

conclusion of the Third Circuit in Davin, 60 F.3d at 1058, and

McDonnell v. United States, 4 F.3d 1227, 1257 (3d Cir. 1993),

that under FOIA deceased persons "have no privacy interest

in nondisclosure of their identities." The scope and weight of

these interests need not be resolved on the present record,

however, although we note analysis of privacy under FOIA

often differs from similar analysis in other areas of the law.

See Reporters Committee, 489 U.S. at 762 n.13.

Second, the present record is insufficient to permit mean-

ingful discussion of the extent, if any, to which the FBI must

investigate to determine whether putative beneficiaries of

7(C) are alive or dead. See Summers, 140 F.3d at 1085

(Williams, J., concurring). On remand, the parties may docu-

ment their respective positions, and the district court should

order the FBI to take such action as is necessary to ensure

proper implementation of exemption 7(C). To the extent

Campbell has also challenged specific redactions of names or

categories of names, the district court, which will have the

benefit of the FBI's supplemental declarations, can initially

resolve these challenges more effectively.

__________

14 Death of a confidential source, in contrast, is not relevant

under exemption 7(D). See Schmerler v. FBI, 900 F.2d 333, 335-36

(D.C. Cir. 1990).

Exemption 7(D) covers "records or information compiled by

criminal law enforcement authorities in the course of criminal

investigations if their release could reasonably be expected to

disclose the identity of, as well as information provided by, a

confidential source." Computer Prof'ls for Social Responsi-

bility v. United States Secret Serv., 72 F.3d 897, 905 (D.C.

Cir. 1996). The mere fact that a person or institution pro-

vides information to a law enforcement agency does not

render that person a "confidential source" within the meaning

of exemption 7(D). See United States Dep't of Justice v.

Landano, 508 U.S. 165, 178 (1993). Rather, exemption 7(D)

applies only when "the particular source spoke with an under-

standing that the communication would remain confidential."

Id. at 172. Such understandings are reasonable when the law

enforcement agency receiving information provides either an

express or implied assurance of confidentiality. See id.

The district court concluded that the FBI appropriately

withheld information received from sources to whom the FBI

had provided either express or implied assurances of confi-

dentiality. The district court's reasoning with respect to the

implied assurances is correct,15 but the FBI's declarations

with respect to express assurances are insufficient to warrant

summary judgment.

To withhold information under Exemption 7(D) by express

assurances of confidentiality, the FBI must present "proba-

tive evidence that the source did in fact receive an express

grant of confidentiality." Davin, 60 F.3d at 1061. Such

evidence can take a wide variety of forms, including notations

on the face of a withheld document, the personal knowledge

__________

15 The district court concluded that local, state, and foreign law

enforcement agencies, as well as a former member of an allegedly

subversive organization, had cooperated with the FBI's anti-

communist activities based upon an implied assurance of confiden-

tiality. This conclusion is consistent with the record and with the

Supreme Court's analysis in Landano. See Landano, 508 U.S. at

175-76; Ferguson v. FBI, 83 F.3d 41, 43 (2d Cir.1996); Declaration

of Debra Mack at pp 19-34.

of an official familiar with the source, a statement by the

source, or contemporaneous documents discussing practices

or policies for dealing with the source or similarly situated

sources. See, e.g., id.; Computer Prof'ls, 72 F.3d at 906. No

matter which method the agency adopts to meet its burden of

proof, its declarations must permit meaningful judicial review

by providing a sufficiently detailed explanation of the basis

for the agency's conclusion. For, as the Supreme Court has

observed in regard to mere assertions that there is a confi-

dential source: "Once the FBI asserts that information was

provided by a confidential source ... the requester--who has

no knowledge about the particular source or the information

being withheld--very rarely will be in a position to offer

persuasive evidence that the source in fact had no interest in

confidentiality." Landano, 508 U.S. at 177.

The FBI declaration simply asserts that various sources

received express assurances of confidentiality without provid-

ing any basis for the declarant's knowledge of this alleged

fact. Given that the declarant presumably lacks personal

knowledge of the particular events that occurred more than

30 years ago, more information is needed before the court can

conclude that exemption 7(D) applies. We also note that

while the FBI's declaration maintains that many documents

reveal express guarantees of confidentiality on their face,

some of these guarantees have been redacted or the entire

document withheld, rendering judicial review impossible. On

remand, the FBI can produce such additional information as

is necessary to document its exemption 7(D) defenses.

III.

Finally, Campbell challenges the fee assessment for copy-

ing certain FBI files. FOIA permits an agency to charge a

reasonable fee for searching, copying, and reviewing files.

See 5 U.S.C. s 552(a)(4)(A)(ii). The agency must waive or

reduce this fee when disclosure of requested information is

"in the public interest because it is likely to contribute

significantly to public understanding of the operations or

activities of the government and is not primarily in the

commercial interest of the requester." 5 U.S.C.

s 552(a)(4)(A)(iii). The FBI has promulgated regulations to

structure its discretion under this fee waiver provision. See

28 C.F.R. s 16.11(d). Judicial review in "any action by a

requester regarding the waiver of fees" is de novo, but is

limited to the record before the agency. 5 U.S.C.

s 552(a)(4)(A)(vii).

The FBI did not charge Campbell any fees for search and

review related to his FOIA request, but it did charge for

approximately $165 in copying expenses. Campbell did not

pay the full amount because the FBI granted him a 60% fee

waiver. According to the FBI, the remaining 40% of the fees

were not waivable because 40% of the released documents

would not further public understanding about the operations

of government. Such documents were either redundant with

material already in the public domain, repetitious with other

material being produced, or contained administrative informa-

tion of no importance to the public. If a page contained any

substantive information, even if embedded within mostly non-

substantive material, the FBI granted a waiver.

The district court accepted the FBI's reasoning and af-

firmed the 60% waiver, noting that:

Neither party disputes that FBI and CIA files of civil

rights activist James Baldwin concern the 'operations or

activities of the government.' Nor is it disputed that

plaintiff stands to gain commercially from responsive

documents. Indeed, plaintiff has already authored a

biography about James Baldwin using materials respon-

sive to his FOIA request. The court concurs with the

FBI's assertion that 40% of the releasable material was

not new material. As such, the court is persuaded that

the material would therefore be less likely to contribute

significantly to public understanding. Accordingly, the

court upholds the FBI decision to grant a 60 percent

partial fee waiver and charge duplication fees for the

remaining 40 percent.

Memorandum Opinion at 18-19. Campbell challenges this

reasoning and contends that he is entitled to a 100% fee

waiver. We agree that the district court must reconsider its

analysis, but we decline to hold that the FBI cannot charge

Campbell any copying fees.

The district court prominently noted its view that the

parties agreed "that plaintiff stands to gain commercially

from responsive documents." Yet this statement is contra-

dicted by the record, as the FBI did not take commercial

profit into account when calculating a fee waiver because it

concluded that Campbell "has no overriding commercial inter-

est in this case." The FBI's reasoning is consistent with the

underlying purpose of the fee waiver provisions, which afford

"special solicitude" to scholars whose archival research ad-

vances public understanding of government operations. Na-

tional Treasury Employees Union v. Griffin, 811 F.2d 644,

649 (D.C. Cir. 1987). The fact that a bona fide scholar profits

from his scholarly endeavors is insufficient to render his

actions "primarily ... commercial" for purposes of calculating

a fee waiver, as Congress did not intend for scholars (or

journalists and public interest groups) to forego compensation

when acting within the scope of their professional roles. The

quasi-commercial nature of Campbell's research was there-

fore irrelevant for purposes of calculating an appropriate fee

waiver.

The district court also agreed with the FBI "that 40% of

the releasable material was not new material.... [and]

would therefore be less likely to contribute significantly to

public understanding." Our review of the FBI's fee waiver

decision indicates that the FBI reached this conclusion based

on several flawed assumptions. For example, the FBI con-

cluded that previously unreleased summaries by its staff of

newspaper articles constitute public domain material, because

the underlying articles are public, that would not further

public understanding. Yet the fact that FBI work-product

incorporates publicly available information does not detract

from its value independent of the source material. Indeed,

insight into how the FBI reacts to the media is the kind of

public understanding of government operations that FOIA

was designed to foster.

The district court also accepted the FBI's contention that

portions of the requested materials were already in the public

domain. Yet the FBI has never explained where in the

"public domain" these materials reside. Such an explanation

is necessary because the mere fact that material is in the

public domain does not justify denying a fee waiver; only

material that has met a threshold level of public dissemina-

tion will not further "public understanding" within the mean-

ing of the fee waiver provisions. See, e.g., Carney v. United

States Dep't of Justice, 19 F.3d 807, 815-16 (2d Cir. 1994);

Schrecker v. Department of Justice, 970 F. Supp. 49, 50-51

(D.D.C. 1997); Fitzgibbon v. Agency for Int'l Dev., 724

F. Supp. 1048, 1051 (D.D.C. 1989). Likewise, the FBI has

not indicated how closely related the requested material was

to material already in the public domain, an omission that

precludes deference to its ultimate conclusions.

Furthermore, the presence of administrative material with-

in files that also contain substantive documents does not

justify charging fees for copying the non-substantive clutter.

The fee waiver provisions implicitly assume that valuable

government information tends not to be freestanding; few

files contain neatly segregated "substantive" documents shorn

from their administrative accompaniments. Congress pre-

sumably did not intend agencies to pick through responsive

records to determine the percentage of the record that con-

tains interesting morsels and to deem the remainder of the

record irrelevant to public understanding. The more plausi-

ble reading of the statute is that once a given record is

deemed to contain information warranting a waiver, all of the

related pages within that record that are responsive to the

FOIA request fall under the waiver even if each individual

page would not independently qualify.16 It would then fall to

__________

16 A different standard might apply to records or files that are

uncommonly large or that contain only a few substantive documents

relative to the volume of administrative information.

the requester--here a scholar--rather than the FBI, to parse

the wheat from the chaff. Cf. Project on Military Procure-

ment v. Department of the Navy, 710 F. Supp. 362, 366

(D.D.C. 1989).

In addition, the FBI impermissibly denied a waiver for

copying repetitious, but non-duplicative, material. A scholar

has a strong interest in reviewing each repetition of a given

topic within a file or set of files to explore nuances and assess

the manner in which the government handled the information.

Deeming repetitious documents within a single request to be

of no value to "public understanding" is therefore inconsistent

with the purposes of FOIA.17 Of course, repetition at some

point shades into duplication, but the record on appeal does

not explain how the FBI distinguished between permissible

and impermissible repetition; we learn only that the Bureau

denied a waiver for documents with "substantially the same

information" as other documents.

Accordingly, we reverse the grant of summary judgment

and remand the case to the district court so that the FBI can

conduct an adequate search for ELSUR and tickler records,

justify its defenses under exemptions 1, 7(C), and 7(D) in

sufficient detail to permit meaningful judicial review, and

recalculate its fee waiver ratio to comply with the statutory

standards.18

__________

17 The FBI also denied a waiver for copying duplicate docu-

ments. This decision appears legitimate, although in certain cir-

cumstances the fact that a given document was found in a given file

could further public understanding even if the contents of the

document are already known.

18 In light of this disposition, the district court's discussion of

attorney's fees is premature; Campbell remains free to request

such fees at a later stage in the litigation.