Martin, Harold v. DOJ

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

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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.

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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,

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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.

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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.

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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

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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

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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).

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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

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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.