Cottone, Salvatore v. Reno, Janet

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 1, 1999 Decided October 26, 1999

No. 98-5497

Salvatore Cottone,

Appellant

v.

Janet Reno, Attorney General of the United States

Department of Justice,

Appellee

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: The principal question in this case is

whether wiretapped recordings, otherwise exempt from dis-

closure under the Freedom of Information Act ("FOIA"),

must nevertheless be released when a requester precisely

identifies specific tapes that have been introduced into evi-

dence 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 record-

ings, we must remand for further proceedings.

I. Background

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 conversa-

tions recorded by surreptitious wiretap and recorded conver-

sations procured by undercover agents wearing hidden re-

corders 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 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.). At no point during the trial or thereafter did the

government move to place these tapes under seal.

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 docu-

ments, 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 rea-

sonably be expected to constitute an unwarranted invasion of

privacy." 5 U.S.C. s 552(b)(7)(C). Invoking Exemption 3,

which protects information "specifically exempted from disclo-

sure" by another statute, 5 U.S.C. s 552(b)(3), the FBI

withheld in full all other responsive tape recordings. Unlike

the two redacted tapes that the FBI produced, these remain-

ing 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. ss 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 lan-

guage clearly evinces Congress' intent that intercepted mate-

rial, except in a few well-defined circumstances, remain se-

cret." 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).

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 Exemp-

tion 7(C), he argued that neither tape jeopardized any legiti-

mate 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 ac-

knowledging that otherwise exempt materials lose their privi-

leged 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 judg-

ment 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

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 wire-

tapped recordings obtained pursuant to Title III that Cottone

requested are ordinarily exempt from disclosure under Ex-

emption 3, 5 U.S.C. s 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 oth-

erwise 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. Depart-

ment of State, 702 F.2d 1125, 1130-34 (D.C. Cir. 1983) (Ex-

emptions 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 'official-

ly acknowledged' or is in the 'public domain.' ").

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.

This Cottone has done. As a threshold matter, our deci-

sions 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.

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 disclo-

sure 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 refer-

ences to them on the tapes are available elsewhere." Id.

Unlike the situation we confronted in Davis, however,

Cottone has demonstrated precisely which recorded conversa-

tions 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 record-

ed 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 point-

ing 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.

To be sure, we suggested in Davis that, to satisfy the

burden of production in public-domain cases, the FOIA re-

quester 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" postu-

lates that an exemption can serve no purpose once informa-

tion--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.

Once the FOIA requester has carried his burden of produc-

tion, 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.

s 2518(8)(a). Therefore, because Cottone has identified spe-

cific 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.

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 constitu-

tionally 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

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 determina-

tion, it validly applied Exemption 7(C).

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 invoca-

tion of a particular exemption, the agency must append a

declaration to its motion for summary judgment that "pro-

vide[s] detailed and specific information demonstrating 'that

material withheld is logically within the domain of the exemp-

tion 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 per-

taining 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 identify-

ing 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

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 dis-

trict court should also order the FBI to prepare a Vaughn

index justifying its redactions under Exemption 7(C).

So ordered.