Appendix — Crancer v. Department of Justice

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 91-2080

In re: Department of Justice,

Petitioner.

No. 91-2164

Barbara Ann Crancer,

Appellee,

v.

United States Department of Justice,

Appellant.

Appeals from the United States District Court

for the Eastern District of Missouri

Submitted: May 11, 1992

Filed: August 5, 1993

Before RICHARD S. ARNOLD, Chief Judge, McMILLIAN,

JOHN R. GIBSON, FAGG, BOWMAN, WOLLMAN,

MAGILL, BEAM, LOKEN ,and HANSEN, Circuit J udges,

En Banc.

WOLLMAN, Circuit Judge.

In In re Department of Justice, 950 F.2d 530 (8th Cir. 1991)

(Crancer I), a panel of this court upheld the district court’s order

Laka MeO cae.

requiring the government to provide a Vaughn' index after the

government had invoked Exemption 7(A) of the Freedom of

Information Act, 5 U.S.C. § 552(b)(7)(A) (1988). We granted

the government’s suggestion for rehearing en banc and vacated

the panel’s decision. We now issue a writ of mandamus, vacate

the challenged order, and remand the case to the district court for

further proceedings.

L

In 1987, Barbara Ann Crancer filed a Freedom of Information

Act (FOIA) request with the Department of Justice. Crancer

sought the release of certain information uncovered during the

investigation conducted by the Federal Bureau of Investigation

into the disappearance of her father, Jimmy Hoffa, the former

president of the International Brotherhood of Teamsters. The

FBI’s investigation has resulted in the accumulation of more

than 13,800 pages of records relating to Hoffa’s disappearance.

The Department denied Crancer’s request on the basis of

Exemption 7(A), contending that the Hoffa FBI file contains

“records or information compiled for law enforcement pur-

poses,” the release of which “could reasonably be expected to

interfere with enforcement proceedings.” 5 U.S.C. §552(b)(7)(A).

Afterexhausting her administrative remedies, Crancer brought

suit to compel the Department to provide her with the documents

she had requested. During the pendency of her suit, Crancer filed

a second, broader request seeking any and all materials relating

to the FBI’s investigation into Hoffa’s disappearance. After this

request was administratively denied by the Department, also on

the basis of Exemption 7(A), Crancer amended her complaint to

include her second request.

'See Vaughn v. Rosen, 484 F.2d 820, 826-28 (D.C. Cir. 1973), cert. denied,

415 U.S. 977 (1974).

: .

a

The Department moved for summary judgment on the basis of

the claimed exemption. The district court ordered the Depart-

ment to provide Crancer with a Vaughn index so that she could

effectively oppose the government’s pending motion. Theccurt’s

order required the Department to produce an “itemized, indexed

inventory of every agency record or portion thereof responsive

to plaintiff’s FOIA request,” together with a “detailed justifica-

tion statement covering each refusal to release [an] agency

record{] or portions thereof.” D. Ct. Order of July 27, 1990, at 1.

The Department asked the court to reconsider its order directing

the production of the Vaughn index. This request was denied.

The Department then requested that the district court modify its

earlier order and allow the Department to provide a categorical

description of the documents contained in the Hoffa FBI file. The

Department submitted a list of nine categories of documents and

an affidavit describing the potential interference with enforce-

ment proceedings that would result if it were required to compile

a Vaughn index. The district court denied this request and

ordered the Department to submit the Vaughn index to a magis-

trate judge for in camera review.

In lieu of submitting a Vaughn index, the Department asked

the magistrate judge to review the actual documents in camera.

The magistrate judge denied this request, but extended the time

period in which the Vaughn index was to be submitted. The

Department then asked the district court to reconsider the mag-

istrate judge’s order or, in the alternative, to certify the matter for

interlocutory appeal. These requests were also denied.

The Department then sought relief from this court, asserting

jurisdiction under the collateral order doctrine, Cohen v. Benefi-

cial Indus. Loan Corp., 337 U.S. 541 (1949), or the All Writs

Act, 28 U.S.C. § 1651(b).

In Crancer I, the panel asserted jurisdiction under the All

Writs Act and upheld the district court’s order requiring the

preparation of a Vaughn index. The panel first determined that

SES enreee ten ew en ne a eT

SS

the Department could not be required to provide a specific

factual showing and explanation describing why each document

is exempt. It went on to hold, however, that the Department could

be required to make a specific factual showing to demonstrate

why each document belongs in a certain category, along with an

explanation describing why the category itself is exempt from

disclosure.

il.

We first examine whether, and the basis upon which, we have

jurisdiction to hear this case.

We possess discretionary writ-issuing authority under the All

Writs Act, 28 U.S.C. § 1651(b). As noted by the panel in Crancer

J, mandamus is “available only in those exceptional circum-

stances amounting to a judicial usurpation of power.” Jn re Ford

Motor Co., 751 F.2d 274, 275 (8th Cir. 1984).

The panel determined that:

[The Department’s] argument is a novel one and has not

been directly addressed by any court. If [the Department] is

correct in its contention that the district court lacked author-

ity to order a Vaughn index, then a writ would be the proper

remedy. Because the issue of whether the writ is available

is intertwined with the merits of this interlocutory matter,

we must decide whether the district court had authority to

require a Vaughn-type index in these circumstances.

Crancer I, 950 F.2d at 532 (citation omitted). We agree with the

panel’s analysis and believe that this case presents a unique

situation. Thus, we conclude that we have jurisdiction to decide

the question whether the district court’s order directing the

Department to produce a Vaughn index in the face of the

Department’s invocation of Exemption 7(A) constituted a judi-

cial usurpation of power.

cae pen

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“The basic purpose of FOIA is to ensure an informed citi-

zenry, vital to the functioning of a democratic society, needed to

check against corruption and to hold the governors accountable

to the governed” NLRB v Robbins Tire & Rubber Co., 437 U.S.

214, 242 (1978). Consistent with this policy of broad disclosure,

the government is required to release all requested information

upon the demand of any member of the public. /d. at221; see also

Curran v. Department of Justice, 813 F.2d 473 (Ist Cir. 1987);

Irons v. FBI, 811 F.2d 681, 685 (Ist Cir. 1987). Congress

fashioned certain explicit exemptions from disclosure, however,

in order to preserve vital government policies and, in some cases,

to protect individuals. See 5 U.S.C. § 552(b)(1)-(9); see also

Robbins Tire, 437 U.S. at 220-21 (“Congress carefully struc-

tured nine exemptions from the otherwise mandatory disclosure

requirements in order to protect specified confidentiality and

privacy interests.”’).

Once information is requested under FOIA, therefore, the

government must provide the information unless it determines

that a specific exemption applies. Likewise, the government

bears the burden of demonstrating that the claimed exemption

applies. 5 U.S.C. § 552(a)(4)(B). The district court must deter-

mine de novo whether the government has satisfied its burden.

Id.

In the face of a claimed statutory exemption, district courts

have sometimes required the government to provide a Vaughn

index. “This indexing procedure is perceived as necessary to

permit the district court and the requesting party to evaluate the

[government’s] decision to withhold records and to ensure its

compliance with the mandates of the FOIA.” Barney v. IRS, 618

F.2d 1268, 1272 (8th Cir. 1980) (per curiam).

A Vaughn index provides a specific factual description of

each document sought by the FOIA requester. Specifically, such

— wed

an index includes a general description of each document’s

contents, including information about the document’s creation,

such as date, time, and place. Crancer I, 950 F.2d at 533. “For

each document, the exemption claimed by the government is

identified, and an explanation as to why the exemption applies to

the document in question is provided.” /d.; see also Barney, 618

F.2d at 1272.

Exemption 7(A) of FOIA provides that the act “does not apply

to matters that are— * * * (7) records or information compiled

for law enforcement purposes, but only to the extent that the

production of such law enforcement records or information (A)

could reasonably be expected to interfere with enforcement

proceedings[.]” 5 U.S.C. § 552(b)(7)(A). The government con-

tends that the courts have interpreted this exemption differently

from other FOIA exemptions, with the result that a district court

may not order the production of a Vaughn index when Exemp-

tion 7(A) is invoked.

In NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214 (1978),

the Supreme Court addressed the burden that the government

must bear when asserting Exemption 7(A). In that case, the

FOIA requester, an employer, sought from the National Labor

Relations Board all statements made by potential witnesses prior

to a Board hearing on the employer’s unfair labor practices. /d.

at 216. On appeal, the employer argued that the district court had

erred by not requiring the government to make an individualized

showing that each withheld document fit within the limits of

Exemption 7(A). The Supreme Court rejected this argument,

interpreting Exemption 7(A) of FOIA to require the government

to prove that “with respect to particular kinds of enforcement

proceedings, disclosure of particular kinds of investigatory

records while a case is pending would generally ‘interfere with

enforcement proceedings.”” /d. at 236.

In support of its ruling, the Supreme Court noted that:

—*. a

[t]here is areadily apparent difference between [Exemption

7(A)] and [Exemptions 7(B)-(D)]. The latter [exemptions]

refer to particular cases . . . and thus seem to require a

showing that the factors made relevant by the statute are

present in each distinct situation. By contrast, since [Ex-

emption 7(A)] speaks in the plural voice about “enforce-

ment proceedings,” it appears to contemplate that certain

generic determinations might be made.

437 U.S. at 223-24. The Court then examined Exemption 7’s

legislative history, which appeared to confirm the Court’s obser-

vation regarding the distinguishing characteristic of Exemption

7(A). Id. at 224-34. The Court further noted that had Congress

intended that “the Government in each case show a particular-

ized risk to its individual ‘enforcement proceedin[g],”” it could

have done so. /d. at 234.

The Court also addressed Congress’s 1974 amendment of

Exemption 7(A). This amendment was designed “to eliminate

‘blanket exemptions’ for Government records simply because

they were found in investigatory files compiled for law enforce-

ment purposes.” /d. at 236. The Court’s discussion of President

Ford’s veto of the 1974 amendment and the subsequent congres-

sional override is instructive for our present analysis. The

President was concerned that the 1974 amendment to Exemption

7(A) “would require the Government to ‘prove . ..—separately

for each paragraph of each document—that disclosure “would”

cause’ a specific harm” to enforcement proceedings. /d. at 235

(citation omitted). Congressional supporters of the amendment

termed the President’s interpretation of the amendment “‘ludi-

crous,”” stating that the “‘burden is substantially less than we

would be led to believe by the President’s message.” /d. (cita-

tion omitted).?

2 For further discussion of the legislative history of the 1974 amendment

to Exemption 7(A), see Federal Bureau of Investigation v. Abramson, 456

U.S. 615, 626 (1982); Campbell v. Department of Health and Human Serv.,

682 F.2d 256, 261-63 (D.C. Cir. 1982).

—* oe

The Court concluded that although the 1974 amendment to

Exemption 7(A) was designed to eliminate blanket exemptions

for records found in investigatory files, Congress did not intend

that generic determinations of those materials entitled to Exemp-

tion 7(A) protection could never be made. Rather, the govern-

ment must demonstrate, and courts must determine, whether

“disclosure of particular kinds of investigatory records... would

generally ‘interfere with enforcement proceedings.” /d. at 236.

In other words, Congress intended that certain types or catego-

ries of investigatory records be withheld under Exemption 7(A)

because disclosure of documents within those categories gener-

ally would interfere with enforcement proceedings.

With this understanding, post-Robbins Tire courts have made

these determinations generically, category-of-document by

category-of-document. In Barney v. IRS, for example, we were

confronted with the question whether, in the wake of Robbins

Tire, the government was required to provide a Vaughn index

after the government invoked Exemption 7(A). 618 F.2d 1268

(8th Cir. 1980) (per curiam). We held that “[t]o sustain its burden

of showing documents were properly withheld under exemption

7(A) the government had to establish only that they were

investigatory records compiled for law enforcement purposes

and that production would interfere with pending enforcement

proceedings.” Jd. at 1272-73. The Barney court bolstered its

conclusion by emphasizing that “[uJnder exemption 7(A) the

government is not required to make a specific factual showing

with respect to each withheld document that disclosure would

actually interfere with a particular enforcement proceeding.” /d.

at 1273 (citing Robbins Tire, 437 U.S. at 234-35).

Congress amended Exemption 7 in 1986 to lessen the burden

on the government in establishing the application of Exemption

7(A). Freedom of Information Reform Act of 1986 (FIRA), Pub.

L. No. 99570, § 1802, 100 Stat. 3207, 3207-48 (1986). Whereas

under the 1974 version of Exemption 7(A), the government bore

=

the burden of showing that the production of the requested law

enforcement records “would interfere with enforcement pro-

ceedings,” under the 1986 version the government need only

show that the production of law enforcement records or informa-

tion “could reasonably be expected to interfere with law enforce-

ment proceedings.”

In 1989, the Supreme Court revisited the government’s bur-

den under Exemption 7, this time focusing on the use of categori-

cal determinations under Exemption 7(C), which covers docu-

ments whose production “could reasonably be expected to

constitute an unwarranted invasion of personal privacy.” United

States Dep’ t of Justice v. Reporters Comm. for Freedom of the

Press, 489 U.S. 749 (1989) (“Reporters Committee’’). In Report-

ers Committee, a group of journalists requested that the FBI

disclose an individual’s computerized criminal history file,

known colloquially as the person’s “rap sheet.” The Supreme

Court held that the production of rap sheets “as a categorical

matter” could reasonably be expected to constitute an unwar-

ranted invasion of a citizen’s privacy. /d. at 780.

The Court discussed its earlier approval of a categorical

approach to Exemption 7(A) in Robbins Tire. The Court noted

that it had based its ruling in Robbins Tire on the perception that

Exemption 7(A)’s reference to the plural “enforcement proceed-

ings” supported a categorical approach when 7(A) was invoked,

in contrast to the singular references in the other subsections of

Exemption 7, which seemed to suggest a case-by-case balanc-

ing. Finding that “[jJust as one can ask whether a particular rap

sheet is a ‘law enforcement record’ that meets the requirements

of [Exemption 7(C)], so too can one ask whether rap sheets in

general . . . are ‘law enforcement records’ that meet the stated

criteria,” the Court concluded that its approval of a categorical

approach for Exemption 7(A) applied with equal force to the

other subsections in Exemption 7. /d. at 779. Because the Court

found that the disclosure of computerized compilations of an

— A-10 —

individual’s criminal history could always be expected to consti-

tute an invasion of an individual’s privacy, it held that rap sheets

as a Category are exempted from disclosure under FOIA. /d. at

780.

The Court also supported its holding that a categorical ap-

proach was appropriate for Exemption 7(C) as well as 7(A) by

pointing to the 1986 amendment. The Court stated that the

amended 7(C), which like 7(A) had changed from the more

stringent “would” to the more flexible “could reasonably be

expected to,” was enacted “to give the Government greater

flexibility in responding to FOIA requests for law enforcement

records or information.” /d. at 777 n.22. The Court further noted

that the amendment was designed to “replace a focus on the

effect of a particular disclosure ‘with a standard of reasonable-

ness . . . based on an objective test.” /d. This reasonableness

standard, the Court concluded, “amply supports a categorical

approach to the balance of private and public interests in Exemp-

tion 7(C).” Jd. The Court’s conclusion concerning the effect of

the amendment applies with equal force to Exemption 7(A),

given the Court’s conclusion that all of the Exemption 7 subsec-

tions should be interpreted similarly with respect to the use of

categorical justifications.

Recently, the Court further explained its categorical approach

in United States Dep't of Justice v. Landano, 113 S. Ct. 2014

(1993). Seeking to support a claim that the government had

failed to disclose exculpatory evidence in his earlier criminal

case, Landano sought all of the FBI files connected with the

police officer’s murder for which Landano had been convicted.

After releasing a portion of its files, the FBI withheld certain

documents on the grounds that they were exempt under Exemp-

tion 7(D), which applies to law enforcement records or informa-

tion whose production “could reasonably be expected to disclose

the identity of a confidential source.” The district court largely

rejected the government’s categorical explanations and held that

— A-11—

the FBI had to articulate “case-specific reasons for non-disclo-

sure” of all information other than records pertaining to regular

FBI informants. /d. at 2018. The Court of Appeals for the Third

Circuit affirmed, holding that the government had to provide

detailed explanations relating to each alleged confidential source

in order to justify nondisclosure under Exemption 7(D). /d. at

2019.

The Supreme Court reversed and remanded. The Court first

rejected the government’s argument that it is entitled to a

presumption under FOIA that all FBI sources are confidential

and that any records relating to FBI sources should be presump-

tively exempt from disclosure. The Court noted that the

government’s proposed presumption was not rebuttable, as

argued by the government, but amounted to an irrebuttable

presumption or blanket exemption that found no support in the

language or legislative history of Exemption 7(D). /d. at 2023.

The Court, however, did not agree with the Third Circuit’s

requirement that the government must provide a detailed justifi-

cation relating to each alleged confidential source. To the con-

trary, the Court stated that the government could point to

categories of documents, the circumstances surrounding which

would support the inference that the sources to whom they

pertained were confidential. /d. at 2023. For example, the Court

suggested that “paid informants normally expect their coopera-

tion with the FBI to be kept confidential,” implying that the

government need only present a category of documents relating

to paid informants, whose production could reasonably be ex-

pected to disclose the informant’s identity, in order to justify

nondisclosure under Exemption 7(D). Jd. As a second example,

the Court opined that eyewitnesses to a gang-related murder

could also probably be presumed to be confidential. Jd. The

Court concluded that such a generic, categorical approach best

articulated Congress’s intent “to provide “ ‘‘workable’ rules” of

FOIA disclosure.” /d. (citing Reporters Committee, 489 U.S. at

779).

— A-12 —

Thus, we conclude that the Supreme Court has consistently

interpreted Exemption 7 of FOIA (specifically so far subsections

7(A), 7(C), and 7(D)) to permit the government to proceed on a

categorical basis in order to justify nondisclosure under one of

Exemption 7’s subsections. See Landano, 113 S. Ct. at 2023-24;

Reporters Committee, 489 U.S. at 779-80; Robbins Tire, 437

U.S. at 241-43. The Court’s interpretation of Exemption 7 and

Congress’s intent in enacting it has been strengthened by the

1986 amendment, which provided for greater flexibility and

lessened the government’s burden. See Reporters Committee,

489 U.S. at 777 n.22.

Our interpretation of Exemption 7(A) in Barney mirrors the

Supreme Court’s interpretation. Moreover, consistent with the

teachings of Robbins Tire, our analysis in Barney is in accord

with the principle that “‘the inherent nature of the requested

documents is irrelevant to the question of exemption.” Curran,

813 F.2d at 474 (quoting /rons v. FBI, 811 F.2d 681, 685 (Ist Cir.

1987)). This interpretation is consistent with decisions from

other circuits. See. e.g., Lewis v. IRS, 823 F.2d 375, 378 (9th Cir.

1987); Curran, 813 F.2d at 475; Church of Scientology of Calif.

v. IRS, 792 F.2d 146, 152 (D.C. Cir. 1986); Campbell, 682 F.2d

at 265.

The District of Columbia Circuit, which originally developed

the Vaughn index, has succinctly explained the relationship

> The panel attempted to distinguish these cases on the ground that the

appellate courts were reviewing district court decisions that had found

Vaughn indices not to be required. Crancer I, 950 F.2d at 534. We find this

reasoning unpersuasive. Whatever the procedural posture, the Supreme Court

has made clear that the government does not have to provide fact-specific

information with respect to each document to justify its claim that Exemption

7(A) applies. As demonstrated, the actual contents of the documents are not

relevant when the propriety of Exemption 7(A) is in dispute. See Robbins

Tire, 437 U.S. at 236. Rather, the government may meet its burden by showing

how disclosure of each category of documents would likely interfere with the

investigation. /d.

he ceseeeeenenntaneasemmaaieaiasiiiiaaaaiel

— A-13 —

between Exemption 7(A), as interpreted by Robbins Tire, and

the use of Vaughn indices:

[w]hen...aclaimed FOIA exemption consists of a generic

exclusion [such as Exemption 7(A)], dependent upon the

category of records rather than the subject matter which

each individual record contains, resort to a Vaughn index is

futile. Thus, in NLRB v. Robbins Tire & Rubber Co.,

[citation omitted], the Supreme Court upheld, without any

provision of a Vaughn index, the Labor Board’s refusal to

provide under FOIA witness statements obtained in the

investigation of pending unfair labor practice proceedings.

A Vaughn index would have served no purpose since...

[Exemption 7(A)] did not require a showing that each

individual document would produce such interference, but

could rather be applied generically, to classes of records

such as witness statements.

Church of Scientology, 792 F.2d at 152 (Scalia, J.).

In light of the above discussion, the district court’s order for

a Vaughn index in the present case appends an additional

requirement to Exemption 7(A) that exceeds the bounds of the

statute as interpreted by the Supreme Court and this court. The

district court’s order required the government, after identifying

each document, to provide a “detailed justification statement

covering each refusal to release said agency records or portions

thereof.” D. Ct. Order of July 27, 1990, at 1. This goes beyond

the categorical explanations that the Supreme Court in Robbins

Tire held to be sufficient to justify nondisclosure under Exemp-

tion 7(A).

In sum, the government bears the burden of establishing that

Exemption 7(A) applies. And under Robbins Tire, Exemption

7(A) does not require that the government produce a fact-

specific, document-specific, Vaughn index in order to satisfy

that burden. The contents of the requested documents are irrel-

ye pe

evant. It is the particular categories of documents, and the

likelihood that the release of documents within those categories

could reasonably be expected to threaten enforcement proceed-

ings, on which the court must focus. The district court, therefore,

acted beyond the scope of its authority when it ordered the

Department to produce a Vaughn index

IV.

“Although generic determinations are permitted, and the

government need not justify its 7(A) refusal on a document-by-

document basis, there must nevertheless be some minimally

sufficient showing.” Curran, 813 F.2d at 475. To satisfy its

burden with regard to Exemption 7(A), the government must

define functional categories of documents; it must conduct a

document-by-document review to assign documents to proper

categories; and it must explain to the court how the release of

each category would interfere with enforcement proceedings.‘ See

Bevis v. Department of State, 801 F.2d 1386, 1389 (D.C. Cir. 1986).

If the generic index submitted by the government is not

sufficient to sustain the 7(A) exemption, then the district court

may request more specific, distinct categories so that it may more

easily determine how each category might interfere with en-

forcement proceedings. See Campbell, 682 F.2d at 265. Indeed,

this is what the court ordered in Bevis, 801 F.2d at 1390. “The

chief characteristic of an acceptable taxonomy should be func-

tionality—that is, the classification should be clear enough to

permit a court to ascertain ‘how each . . category of documents,

if disclosed, would interfere with the investigation.” Curran,

813 F.2d at 475 (citing Campbell, 682 F.2d at 265).

* We express no opinion as to whether the categorical index submitted by

the Department in this case satisfies the Bevis paradigm. The proceeding

below was, for all intents and purposes, focused only on whether the district

court could order a Vaughn index. On remand, the Department should submit

its categorical index and affidavits in accordance with the principles set forth

in this opinion.

— A-15 —

If the categories remain too general, the district court may also

examine the disputed documents in camera to make a first hand

determination. 5 U.S.C. § 552(a)(4)(B); Lewis, 823 F.2d at 378;

see also Cleary v. FBI, 811 F.2d 421, 423 (8th Cir. 1987) (in

camera examination in 7(C) and (D) exemption case); Parton v.

United States Dep’ t of Justice, 727 F.2d 774 (8th Cir. 1984); Cox

v. United States Dep’ t of Justice, 576 F.2d 1302 (8th Cir. 1978).

In Dickerson v. Department of Justice, 992 F.2d 1426 (6th Cir.

1993), the plaintiff sought the release of information from the

Hoffa FBI file and requested a Vaughn index. The district court

accepted the government’s categorical index, examined certain

documents in camera, and granted summary judgment to the

government on the basis of Exemption 7(A). The court stated

that it was “satisfied beyond any doubt that the investigation into

Hoffa’s disappearance is active and continuing, with the clear

direction of future criminal proceedings being instituted.”

Dickerson v. Department of Justice, No. 90-CV-60045-AA,

1991 WL 337422 (E.D. Mich. July 31, 1991).

On appeal, the Court of Appeals for the Sixth Circuit reviewed

the file that had been submitted to the district court and con-

cluded that the district court had not abused its discretion in

ruling that there was no need to go beyond the documents that the

FBI had submitted. Dickerson, 992 F.2d at 1431-32. The court

of appeals also held that the district court was correct in finding

that the FBI’s investigation remains active and that it was

directed toward the institution of criminal proceedings. /d. at

14320 Further, the Sixth Circuit held that the district court was

correct “in its finding that production of the records sought by

plaintiff Dickerson could reasonably be expected to interfere

with a future prosecution.” /d. at 1433.

In the present case, the district court was apparently of the

belief that the Department was not asserting Exemption 7(A) in

good faith or that it had not individually reviewed the requested

documents to place them in their functional categories. While the

— A-16—

district court may not order a Vaughn index as an aid to its

review, it still must satisfy itself that the requested documents

have been properly withheld. The Department’s failure to dem-

onstrate that the sought-after documents relate to an ongoing

investigation or could reasonably be expected to interfere with

future law enforcement proceedings will carry with it the loss of

the 7(A) exemption. In that regard, we note that although the

Sixth Circuit’s affirmative holding on that issue in Dickerson

will not be binding on the district court on remand, that holding

does give credence to the Department’s assertion of the 7(A)

exemption in the present case.

In summary, Congress enacted Exemption 7(A) to prohibit

interference in an ongoing criminal investigation. The Supreme

Court’s decision in Robbins Tire to allow generic category-by-

category classifications in Exemption 7(A) cases, rather than

detailed fact-specific explanations on a document-by-document

basis, serves an important interest: “[p]rovision of the detail

which a satisfactory Vaughn Index entails would itself probably

breach the dike.” Curran, 813 F.2d at 475. ““Withal, a tightrope

must be walked [in Exemption 7(A) cases]: categories must be

distinct enough to allow meaningful judicial review, yet not so

distinct as prematurely to let the cat out of the investigative bag.”

Id. In short, we will not allow the cure, Exemption 7(A), to

“become the carrier of the disease.” /d.

The writ of mandamus prayed for is issued. The orders

directing the production of a Vaughn index are vacated, and the

case is remanded to the district court for further proceedings

consistent with this opinion.

McMILLIAN, Circuit Judge, with whom RICHARD S.

ARNOLD, Chief Judge, joins, dissenting.

“Free people are, of necessity, informed; uninformed people

can never be free.”’ Sen. Judiciary Comm., Freedom of Informa-

tion, 88th Cong., Ist Sess. 3 (1963) (remarks of Sen. Edward

Long).

— A-17 —

As discussed below, although I agree with much of the

analysis in the majority opinion, I do not agree that the district

court exceeded the scope of its authority when it ordered the

Department of Justice (hereinafter the government) to prepare a

Vaughn index of FBIHQ file 9-60052, the FBI’s investigatory

file concerning the investigation into the disappearance and

presumed murder of Teamsters president Jimmy Hoffa in July

1975. Accordingly, I would deny the petition for writ of manda-

mus.

COLLATERAL ORDER

First, I do not agree that we have appellate jurisdiction to

review the government’s appeal, No. 91-2164. As discussed

below, the term “Vaughn index” is derived from Vaughn v.

Rosen, 157 U.S. App. D.C. 340, 484 F.2d 820 (1973), cert.

denied, 415 U.S. 977 (1974), and a Vaughn index is typically a

detailed affidavit which “permit[s] the court system effectively

and efficiently to evaluate the factual nature of disputed informa-

tion.” /d. at 826. In my view, the district court order in the present

case requiring the preparation of a Vaughn index was essentially

a discovery order in this FOIA litigation. Discovery orders are

“generally not appealable as collateral orders even when they are

attacked as burdensome.” Hinton v. Department of Justice, 844

F.2d 126, 131 (3d Cir. 1988). The Vaughn index is not an end in

itself; by definition, the Vaughn index does not itself disclose

anything of substance. “[A] Vaughn index does not accord a

requester any of the substantive relief [the requester] seeks....

Rather, the [Vaughn] index is a tool for determining the requester’s

substantive rights [under FOIA].” /d. at 130.

It is true that “[the Freedom of Information Act (FOIA)] was

not intended to supplement or displace rules of discovery.” John

Doe Agency v. John Doe Corp., 493 U.S. 146, 153 (1989).

However, the present case involves only the FOIA requests

themselves. It is a discrete civil action. The FOIA is not being

used here as a discovery tool to supplement or displace discovery

— A-18 —

in connection with other litigation, for example, other criminal

or civil proceedings. In discovery proceedings the issue is

whether the information sought is relevant and necessary; how-

ever, in FOIA litigation the only issue is whether the agency has

properly withheld the information sought under one of the

specific statutory exemptions. See, e.g., Northv. Walsh, 279 U.S.

App. D.C. 373, 881 F.2d 1088, 1095 (1989) (FOIA request

seeking documents from Office of Independent Counsel con-

cerning on-going criminal investigation of plaintiff).

I also do not agree that the district court order is appealable

under the final collateral order exception. Hinton v. Department

of Justice, 844 F.2d at 131. Collateral orders are appealable if (1)

the order conclusively decides the disputed issue, (2) the issue is

entirely distinct from the merits of the case, and (3) the order

would be effectively unreviewable if the appeal were postponed

until the issuance of a final order. Coopers & Lybrand v. Livesay,

437 U.S. 463, 468 (1978); Cohen v. Beneficial Industrial Loan

Corp., 337 U.S. 541, 546 (1949). At this point in the present case,

the district court has only ordered the preparation of a Vaughn

index and has yet to conclusively decide the merits of the

government’s claim of exemption under Exemption 7(A). The

district court agreed to consider the Vaughn index in camera; the

district court has not even decided whether or not to disclose the

Vaughn index itself to the public or counsel for plaintiff. As

noted above, the preparation of a Vaughn index “does not accord

a requester any of the substantive relief [he or she] seeks.” Jd. at

130. The substantive relief the requester wants is access to the

government’s records, not the preparation of or access to the

Vaughn index of those records. The preparation of a Vaughn

index is only a preliminary or preparatory step. As was noted by

the panel majority opinion, the present case

is unique because it is not a review of a district court’s order

that documents be disclosed, nor is it a review of a district

court’s decision that documents are exempt from disclo-

—

sure. [The present] case asks us to determine what a district

court may do while deciding whether documents are or are

not exempt from disclosure.

950 F.2d at 533.

MANDAMUS

In the present case the government does not argue the district

court abused its discretion in ordering a Vaughn index; the

government argues the district court lacked the authority to order

a Vaughn index. The government has thus presented the issue in

terms of the power or authority of the district court. The govern-

ment argues that Exemption 7(A) is different from other FOIA

exemptions and that the district court can never require the

preparation of a Vaughn index when the government agency

invokes Exemption 7(A). As noted by the panel majority opin-

ion, this is a novel argument that squarely challenges the author-

ity of the district court to act. 950 F.2d at 532. Because the

government has presented its argument in terms of the district

court’s authority to act, and not in terms of whether or not the

district court abused its discretion, I agree that, under these

unique circumstances, we have jurisdiction to review the district

court order by petition for writ of mandamus.

THE VAUGHN INDEX

A healthy distrust of government, and a corresponding suspi-

cion of government secrecy, is the underlying premise of FOIA.

FOIA “seeks to permit access to official information long

shielded unnecessarily from public view and attempts to create

a judicially enforceable public right to secure such information

from possibly unwilling official hands.” EPA v. Mink, 410 US.

73, 80 (1973). “The basic purpose of FOIA is to ensure an

informed citizenry, vital to the functioning of a democratic

society, needed to check against corruption and to hold the

governors accountable to the governed.” NLRB v. Robbins Tire

& Rubber Co., 437 U.S. 214, 242 (1978) (Robbins). FOIA’s

—

“general philosophy [is] ‘full agency disclosure unless informa-

tion is exempted under clearly delineated statutory language.’”

Department of Air Force v. Rose, 425 U.S. 352, 360-61 (1976),

citing S. Rep. No. 813, 89th Cong., 1st Sess. 3 (1965). “*Con-

gress realized that legitimate governmental and private interests

could be harmed by release of certain types of information,’ and

therefore provided the ‘specific exemptions under which disclo-

sure could be refused.’” John Doe Agency v. John Doe Corp 493

U.S. at 152, citing FBI v. Abramson, 456 U.S. 615, 621 (1982).

The statutory exemptions are to be narrowly construed, Depart-

ment of Air Force v. Rose, 425 U.S. at 361, the district courts

review the claim of exemptions de novo, and the burden of

justifying nondisclosure, that is, the burden of establishing that

the information requested is protected from disclosure by a

specific exemption, is on the agency. See 5 U.S.C. § 552(a)(4)(B).

As noted by the panel majority opinion, the district court’s

responsibility to review de novo the government’s claimed

exemptions is complicated by the fact that “ordinarily a govern-

ment agency, and not the court, has access to the documents in

question.” 950 F.2d at 533. “The party requesting the disclosure

must rely upon his [or her] adversary’s representations as to the

material withheld, and the court is deprived of the benefit of

informed advocacy to draw its attention to the weaknesses in the

withholding agency’s arguments.” Wiener v. FBI, 943 F.2d 972,

977 (9th Cir. 1991), cert. denied, 112 S. Ct. 3013 (1992). This is

the precise difficulty at the heart of the present case and it is also

what precipitated the invention of the Vaughn index.

[I]t is anomalous but obviously inevitable that the party

with the greatest interest in obtaining disclosure is at a loss

to argue with desirable legal precision for the revelation of

the concealed information. Obviously, the party seeking

disclosure cannot know the precise contents of the docu-

ments sought; secret information is, by definition, un-

known to the party seeking disclosure. .. .

— A-21 —

In a very real sense, only one side to the controversy (the

side opposing disclosure) is in a position confidently to

make statements categorizing information, and this case

provides a classic example of such a situation.

Vaughn v. Rosen, 484 F.2d at 823-24. Thus, in FOIA litigation,

the plaintiff, the party seeking disclosure, is placed in the

awkward and frustrating position of speculating about the likely

contents of documents that it has never seen.

In Vaughn v. Rosen the plaintiff was a law professor doing

research on the Civil Service Commission. The professor sought

disclosure of the evaluations of certain government agencies’

personnel management programs and certain other special re-

ports of the Bureau of Personnel Management. The government

claimed that the documents contained information of a personal

nature about the government agency employees and that disclo-

sure would constitute an invasion of the employees’ personal

privacy. The court of appeals noted that the plaintiff’s lack of

knowledge necessarily meant that he quite literally did not know,

and therefore could not inform the court, whether or not the

government’s factual characterization of the documents as con-

taining information of a personal nature was accurate. /d. at 824.

The court of appeals observed that the plaintiff’s lack of knowl-

edge not only hampered his ability to litigate in the district court

(he was essentially limited to arguing that the exemption is very

narrow and that the general nature of the documents sought made

it unlikely that they contained personal information), but

[t]his lack of knowledge by the party seeking disclosure

seriously distorts the traditional adversary nature of our

legal system’s form of dispute resolution. Ordinarily, the

facts relevant to a dispute are more or less equally available

to adverse parties. In a case arising under the FOIA this is

not true, . . . and hence the typical process of dispute

resolution is impossible. . . .

— A-22 —

The problem is compounded at the appellate level. In

reviewing a determination of exemption, an appellate court

must consider the appropriateness of a trial court’s charac-

terization of the factual nature of the information. Fre-

quently trial courts’ holdings in FOIA cases are stated in

very conclusory terms, saying simply that the information

falls under one or another of the exemptions to [FOIA]. An

appellate court, like the trial court, is completely without

the controverting illumination that would ordinarily ac-

company a request to review a lower court’s factual deter-

mination; it must conduct its own investigation into the

document. The scope of inquiry will not have been focused

by the adverse parties and, if justice is to be done, the

examination must be relatively comprehensive. Obviously,

an appellate court is even less suited to making this inquiry

than is a trial court.

Id. at 824-25. The FOIA requester in the present case is in the

same position as the law professor in Vaughn v. Rosen.

The Vaughn v. Rosen court concluded that, contrary to the

intent of Congress, FOIA “actually encourage[d] the Govern-

ment to contend that large masses of information are exempt,

when in fact part of the information should be disclosed.” Jd. at

826. Not only did FOIA contain “no inherent incentives that

would affirmatively spur government agencies to disclose infor-

mation,” id., but “since the burden of determining the justifiabil-

ity of a government claim of exemption currently falls on the

court system, .. . [FOIA] encourage[d] agencies automatically to

claim the broadest possible grounds for exemption for the

greatest amount of information.” /d. These concerns compelled

the Vaughn v. Rosen court to develop what has become known

as the Vaughn index in order to “(1) assure that a party’s right to

information is not submerged beneath governmental obfusca-

tion and mischaracterization, and (2) permit the court system

effectively and efficiently to evaluate the factual nature of

disputed information.” Jd.

Jetta iit eatin, ditebditehsh) dng sseetld+b tis

— A-23 —

As noted by the panel majority opinion,

[t]here is no prescribed form for a Vaughn index; any

form is acceptable as long as the affidavits provided by the

government assist the court’s efforts to decide the issues at

hand. Regardless of form, however, certain components are

integral parts of any Vaughn index. Specifically, Vaughn

indices usually communicate descriptions of each and

every document contained in the file, including a general

description of each document’s contents and general facts

about their creation (such as date, time, and place). For each

document, the exemption claimed by the government is

identified, and an explanation as to why the exemption

applies to the document in question is provided.

950 F.2d at 533 (citations omitted). “Specificity is the defining

requirement of the Vaughn index and affidavit; affidavits cannot

support summary judgment [upholding the government’s claimed

exemption] if they are ‘conclusory, merely reciting statutory

standards, or if they are too vague or sweeping.” King v. United

States Department of Justice, 265 U.S. App. D.C. 62, 830 F.2d

210, 219 (1987) (footnotes omitted). “To accept an inadequately

supported exemption claim ‘would constitute an abandonment

of the trial court’s obligation under the FOIA to conduct a de

novo review.”” Id. Whether the government’s affidavit or affida-

vits constitute an adequate Vaughn index is a question of law

reviewed de novo. Wiener v. FBI, 943 F.2d at 978, citing Binion

v. United States Department of Justice, 695 F.2d 1189, 1193 (9th

Cir. 1983). Preparation of the Vaughn index does more than

require the government agency to review and classify the docu-

ments in question. The resulting Vaughn index is more than a

litigation tool that the FOIA requester can use to challenge the

government’s withholding of those documents. It is important to

remember that requiring the government agency to prepare a

Vaughn index

an HE

forces the government to analyze carefully any material

withheld, it enables the trial court to fulfill its duty of ruling

on the applicability of the exemption, and it enables the

adversary system to operate by giving the requester as

much information as possible, on the basis of which he [or

she] can present his [or her] case to the trial court.

Lykins v. Department of Justice, 233 U.S. App. D.C. 349, 725

F.2d 1455, 1463 (1984). “The index thus functions to restore the

adversary process to some extent, and to permit more effective

judicial review of the agency’s decision.” Wiener v. FBI, 943

F.2d at 977-78; see also Davis v. CIA, 711 F.2d 858, 861 (8th Cir.

1983), cert. denied, 465 U.S. 1035 (1984).

ROBBINS DECISION

As has already been discussed, Exemption 7(A) is the law

enforcement exemption and provides that disclosure is not

required of “matters that are . . . investigatory records or

information compiled for law enforcement purposes, but only to

the extent that the production of such law enforcement records

or information . .. could reasonably be expected to interfere with

enforcement proceedings.” 5 U.S.C. § 552(b)(7)(A). In the

present case the government argues the district court lacked the

authority to require the preparation of a Vaughn index because

a Vaughn index is not required when Exemption 7(A) is invoked,

citing Robbins, 437 U.S. at 223-24, 234-36. In Robbins the

FOIA plaintiff was an employer seeking disclosure of witness

statements prior to an unfair labor practice hearing. Following a

contested representation election, the regional director of the

NLRB filed an unfair labor practice charge against the employer

for pre-election actions. A hearing was scheduled. Prior to the

hearing, the employer sought disclosure of all potential wit-

nesses’ statements collected by the NLRB during its investiga-

tion. The regional director denied the request on the ground that

the witness statements were exempt from disclosure under

several FOIA exemptions, in particular Exemption 7(A). The

— A-25 —

employer appealed to the NLRB General Counsel. However,

before the expiration of FOIA’s 20-day response period, 5

U.S.C. § 552(a)(4)(B), the employer filed a FOIA action in

federal district court, seeking disclosure of the witness statements

and an injunction against holding the hearing until the documents

had been disclosed. The NLRB argued that witness statements were

exempt from disclosure under Exemption 7(A) because their pro-

duction would interfere with an enforcement proceeding, the pend-

ing unfair labor practice hearing. The district court disagreed and

ordered the NLRB to produce the witness statements.

The issue whether Exemption 7(A) was generic, or categori-

cal, or case-specific emerged on appeal. The court of appeals

rejected the NLRB’s categorical or generic approach and con-

cluded that the 1974 legislative history demonstrated that Ex-

emption 7(A) was available only after a specific evidentiary

showing of the possibility of actual interference in an individual

case. 563 F.2d 724, 728 (Sth Cir. 1977). The court of appeals

rejected the NLRB’s arguments that the premature revelation of

its case through the production of the witness statements before

the hearing was the kind of interference that would justify

nondisclosure and that pre-hearing production of witness state-

ments would discourage potential witnesses from making state-

ments at all. Jd. at 729-31. The court of appeals acknowledged

that the possibility of “interference” in the form of witness

intimidation by the employer during the period between disclo-

sure of the witness statements to the employer and the hearing,

but held that the NLRB had failed to demonstrate that the witness

statements were exempt because it had not introduced any

evidence that witness intimidation was likely in this particular

case. Id. at 732. But see, e.g.. Title Guarantee Co. v. NLRB, 534

F.2d 484, 491 (2d Cir.) (holding statements of employees and

union representatives obtained in NLRB investigation exempt

from disclosure under Exemption 7(A) until completion of

administrative and judicial proceedings), cert. denied, 429 U.S.

834 (1976).

i

The Supreme Court reversed. The Court endorsed the generic,

or categorical, interpretation of Exemption 7(A) and held that

“witness statements in pending unfair labor practice proceedings

are exempt from FOIA disclosure at least until completion of the

Board’s hearing.” 437 U.S. at 236. First, the Court noted that the

language of the exemption, specifically the plural reference to

“enforcement proceedings,” suggested that “certain generic

determinations” might be made under Exemption 7(A). /d. at

224. The Court concluded that the early legislative history

supported this interpretation, id. at 225-26 (referring to Sen.

Humphrey’s concerns in 1966 about the need to protect state-

ments of agency witnesses from disclosure prior to agency

proceedings, specifically witnesses in unfair labor practice pro-

ceedings), as well as the reported decisions until 1974. /d. at 226

(citing cases). The Court also noted that the legislative history of

the 1974 amendment of Exemption 7 showed “[t]hat the 1974

Congress did not mean to undercut the intent of the 1966

Congress with respect to Senator Humphrey’s concern about

interference with pending NLRB enforcement proceedings.” /d.

at 232; see id. at226-32 (noting background of 1974 amendment,

particularly Congressional disapproval of several D.C. Cir.

decisions upholding “blanket exemptions” for all government

records contained in investigatory files that had been compiled

for law enforcement purposes; 1974 amendment changed scope

of exemption from “files” to “records” and enumerated specific

purposes and objectives of exemption).

The Court concluded that “Congress did not intend to prevent

the federal courts from determining that, with respect to particu-

lar kinds of law enforcement proceedings, disclosure of particu-

lar kinds of investigatory records while a case is pending would

generally ‘interfere with enforcement proceedings.’” /d. at 236.

The Court agreed that “(t]he most obvious risk of interference

with enforcement proceedings in this context is that employers

or, in some cases, unions will coerce or intimidate employees

and others who have given statements, in an effort to make them

— A-27 —

change their testimony or not testify at all.” /d. at 239. In

addition, prehearing disclosure of witnesses’ statements “would

disturb the existing balance of relations in unfair labor practice

proceedings,” id. at 236, especially since, “[h]istorically, the

NLRB has provided little prehearing discovery in unfair labor

practice proceedings and has relied principally on statements

such as those sought here to prove its case.” Jd. The Court also

noted that the use of FOIA as the mechanism for providing a

litigant with earlier and greater access to the agency’s case than

the litigant would otherwise have was likely to cause substantial

delays in the administrative process and thus interfere with

enforcement proceedings. Jd. at 237-38.

APPLICATION OF EXEMPTION 7(A)

Ido not think Robbins supports the government’s argument in

the present case. As noted by the panel majority opinion, after

Robbins endorsed the generic, or categorical, application of

Exemption 7(A), many courts of appeals

altered their views on the need for a Vaughn index when

Exemption 7(A) is involved. The rationale underlying

these post-Robbins decisions has been that a Vaughn index

* As noted by the majority opinion, slip op. at 9-12 supra, the Supreme

Court recently affirmed the Robbins categorical approach in United States

Dep’ t of Justice v. Landano, 113 S.Ct. 2014, 2021, 2023-24 (1993) (rejecting

blanket exemption for “ail” FBI sources as confidential for purposes of

Exemption 7(D); however, “more narrowly defined circumstances” may

support inference of confidentiality, for example, generic category of paid

informants). See also United States Dep’ t of Justice v. Reporters Comm. for

Freedom of the Press, 489 U.S. 749 (1989) (holding “rap sheets” constituted

generic category of law enforcement records which could reasonably be

expected to constitute an unwarranted invasion of privacy within meaning of

Exemption 7(C)). I do not dispute the continued validity of the Robbins

categorical approach. What is in dispute in the present case is whether, as a

threshold matter, we know enough about the nature of the records in question

to review the accuracy of the government’s classification of the records into

generic categories. I submit that we do not.

— A-28 —

is unnecessary because the government is permitted to

demonstrate interference based on categories of documents

and need not demonstrate interference with enforcement

proceedings on adocument-by-document basis. E.g. Church

of Scientology v. IRS, 792 F.2d 146, 152 (D.C. Cir. 1986)

(Scalia, J.); Barney v. IRS, 618 F.2d 1268, 1273 (8th Cir.

1980) (per curiam). Moreover, in each of these cases, the

appellate court was reviewing a district court’s decision not

to require a Vaughn index when the government had al-

ready provided adequate descriptions of the documents

sought, as well as adequate explanations as to how the

particular types of documents at issue could interfere with

law enforcement proceedings.

At no time, however, has an appellate court suggested

that Robbins alters the district court’s statutory obligation

to review the claimed exemption’s applicability. Robbins

does not allow for exemption merely because documents

appear in a law enforcement agency’s file. When an agency

relies upon Robbins and offers categorical justifications for

exemption under Exemption 7(A), the agency must still

review each document individually. .. . The district court is

well within its authority to verify that the agency has

actually examined and properly categorized each docu-

ment. It may accomplish this task by requiring an affidavit

that describes, on adocument-by-document basis, the docu-

ments in the file, the categories into which each document

is placed, and a description of how disclosure of each

category of documents might interfere with enforcement

proceedings. Robbins merely prevents a district court from

ordering a document-by-document explanation as to how

each document will interfere with enforcement proceed-

ings. In other words, though the district court cannot require

the government to justify its decision to deny disclosure on

a document-by-document basis, it can require the govern-

lon

ment to justify its chosen categorization on a document-by-

document basis.

950 F.2d at 533-34 (parenthetical omitted from Barney citation;

citations omitted; footnote omitted).

In Robbins it was not disputed that the documents in question

were in fact witness statements. Nor was it disputed in Robbins

that, at least in general, disclosure of witness statements prior to

the unfair labor practice proceeding could interfere with that

proceeding. What was disputed was whether the agency could

rely on that generality or whether the agency had to make a

specific factual showing that disclosure of those particular

witness statements would interfere with that particular proceed-

ing. Similarly, in Barney v. IRS, there was no dispute about the

categorization of the documents in question; the district court

and this court were “satisfied that the government’s affidavits

adequately described the documents, the categories to which

they belonged, and the possible harms of disclosure.” 950 F.2d

at 534, citing 618 F.2d at 1272-73 (witness statements, docu-

mentary evidence, IRS agent’s work papers, internal agency

memoranda). See Curran v. Department of Justice, 813 F.2d

473, 476 (Ist Cir. 1987) (apparent from agency affidavit that

agency conducted individualized, document-by-document

search, subdivided records into types and then into functional

categories).

The same cannot be said in the present case. Here, the parties

disputed not only the nature of the individual documents, but also

the type of category used by the government, as well as the

appropriate categorization or placement of the documents into

particular categories. This basic lack of agreement about the

nature and categorization of the documents distinguishes the

present case from Robbins and Barney.

In the present case, the district court required preparation of a

Vaughn index, and in response the government filed several

— A-30 —

public affidavits or declarations and a document which it cap-

tioned a “categorical index.” The district court was clearly not

satisfied with the government’s response. As noted by the panel

majority opinion, “[t]he district court’s dissatisfaction [with the

government’s response was] understandable given the

government’s blanket assertion that all 13, 800 documents,

accumulated over a 15-year span, fit neatly into nine categories

described over the course of five pages. “Jd. at 535; cf. Weiner

v. FBI, 943 F.2d at 978 (noting the FBI’s use of “boilerplate”

explanations drawn from a “master” FOIA response). Further-

more, the district court believed that the FOIA requester had

raised serious questions about the validity of the government’s

search and categorization of the documents. /d. Compare Curran

v. Department of Justice, 813 F. 2d at 476 (district court found

no reason to impugn good faith of agency). The district court also

concluded that it needed additional information “about each

document, not only to verify that the government has fulfilled its

obligation to examine each document, but also to enable it to

understand or challenge the categories created by the govern-

ment.” 950 F. 2d at 535.

By requiring the preparation of a Vaughn index in the present

case, the district court was attempting to develop an adequate

record. Only the government knows what is in the Hoffa file; the

FOIA requester and the district court do not know, much less this

court. As noted above, the record indicates only that the file

consists of at least 13, 800 pages in 70 volumes; the file is almost

certainly larger now. Some of these pages are public source

material which the government has already made available to the

FOIA requester. According to the categorical index, which

consists of a total of five double-spaced pages, each and every

page falls within one of nine categories, the disclosure of which

could reasonably be expected to interfere with law enforcement

proceedings. The district court’s dissatisfaction with the cat-

egorical index was directed more at the procedural and substan-

tive accuracy of the government’s classification of individual

— A-31 —

pages than at the categories identified by the government. (The

majority opinion expresses no opinion on the sufficiency of the

Baker affidavit and the categorical index. See slip op. at 14 n.4

supra.) In any event, as noted by the panel majority opinion, the

district court’s concern about whether all the documents are

described by the government’s categories cannot be resolved

merely by requiring more specific or more detailed categories.

950 F.2d at 535.

In my view, assuming for purposes of analysis that the

government’s categories are sufficiently specific, the district

court acted within its authority in requiring the government to

verify that it had actually examined and accurately categorized

each document. Indeed, it was its duty to do so. King v. United

States Department of Justice, 830 F.2d at 219 (acceptance of

inadequately supported exemption claim “would constitute aban-

donment of the trial court’s obligation under FOIA to conduct a

de novo review’’). The district court did not know (and we do not

know) whether the government’s categorization of the docu-

ments was correct or, for that matter, whether the government

had examined each document individually. The district court

decided that, without a Vaughn index, it could not verify whether

there was a correlation between the documents and the catego-

ries. Because all the documents necessarily fall into exempt

categories, unless the district court can verify that each docu-

ment has been examined and accurately categorized, the Robbins

categories will become “no more than smaller versions of the

‘blanket exemptions’ disapproved by Congress in its 1974

amendments of FOIA.” Bevis v. Department of State, 255 U.S.

App. D.C. 347, 801 F.2d 1386, 1389 (1986), citing Robbins, 437

U.S. at 236.

As noted by the panel majority opinion, preparation of a

Vaughn index in the present case does not require the govern-

ment to demonstrate document-by-document how disclosure of

each document could reasonably be expected to interfere with

— A-32 —

pending law enforcement proceedings. 950 F.2d at 535. Like the

district court and the panel majority, I accept the category-by-

category approach. What I do not accept is the government’s

conclusory assertions that each and every document in the Hoffa

file falls within one of its nine categories. In other words, what

is disputed, and what the district court sought to verify by

requiring the preparation of a Vaughn index, is whether the

government’s categorization of each document is accurate.

Without such a record, the FOIA requester cannot test the

government’s claim of exemption, the district court cannot

conduct the required de novo review of the government’s deci-

sion not to disclose (without undertaking the arduous task of

actually reviewing the documents itself), and this court cannot

conduct a meaningful review of the district court’s decision.

It should be noted that the district court could decide to modify

its order requiring the government to prepare a Vaughn index for

the entire Hoffa file. In the proceedings before the district court,

the government argued that preparation of a Vaughn index for

the entire Hoffa file would be inordinately time-consuming and

would necessarily divert scarce resources from other law en-

forcement activities. The district court could require the govern-

ment to prepare a Vaughn index for a representative sample of

the documents in the Hoffa file. “Representative sampling is an

appropriate procedure to test an agency’s FOIA exemption

claims when a large number of documents are involved.” Bonner

v. United States Department of State, 289 U.S. App. D.C. 56,928

F.2d 1148, 1151 (1991); accord The Washington Post v. United

States Department of Defense, 766 F. Supp. 1, 15 (D.D.C. 1991).

Alternatively, the district court could decide to conduct an in

camera review of a representative sample of the documents in

the Hoffa file. /n camera review is discretionary. Robbins, 437

U.S. at 224. Limited in camera review might be particularly

helpful in the present case. “[A] finding of bad faith or contrary

evidence is not a prerequisite to in camera review; a trial judge

a.

may order such an inspection ‘on the basis of an uneasiness/ on

a doubt [the judge] wants satisfied before [taking] responsibility

for a de novo determination.’”” Meeropol v. Meese, 252 U.S.

App. D.C. 381, 790 F.2d 942, 958 (1986), citing Ray v. Turner,

190 U.S. App. D.C. 290, 587 F.2d 1187, 1195 (1978). One

district judge and one appellate panel have examined in camera

a selection made by the government of the documents contained

in the Hoffa file and concluded that those documents established

that the criminal investigation into Hoffa’s disappearance is

active and continuing and that production of those records could

reasonably be expected to interfere with enforcement proceed-

ings. Dickerson v. Department of Justice, No. 90-CV-60045-

AA, 1991 WL 337422, slip op. at 5-6 (E.D. Mich. July 31, 1991),

aff d, 992 F.2d 1426 (6th Cir. 1993).

For the reasons set forth above, I would hold the district court

has the authority to require the government to prepare a Vaughn

index even when Exemption 7(A) is invoked and would deny the

government’s application for writ of mandamus.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS,

EIGHTH CIRCUIT.

mn en

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 91-2080

In re: Department of Justice,

Petitioner.

Petition for Writ of Mandamus.

No. 91-2164EM

Barbara Ann Crancer,

Appellee,

v.

United States Department of Justice,

Appellant.

Appeal from the United States District Court

for the Eastern District of Missouri

Submitted: September 12, 1991

Filed: December 2, 1991

Before McMILLIAN, Circuit Judge, FLOYD R. GIBSON,

Senior Circuit Judge, and WOLLMAN, Circuit Judge.

FLOYD R. GIBSON, Senior Circuit Judge.

—*

In case number 91-2164EM, the Department of Justice (DOJ)

appeals the district court’s’ order that it produce a Vaughn’ index

to describe records requested by Barbara Ann Crancer (Crancer)

pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. S$

552 (1988).? In case number 91-2080, the DOJ alternatively

seeks a writ of mandamus prohibiting the district court from

ordering production of the Yaughn index. We dismiss the inter-

locutory appeal and deny the application for a writof mandamus.

I. BACKGROUND

Jimmy Hoffa, the former president of the International Broth-

erhood of Teamsters, disappeared in Michigan in July 1975. The

FBI began and, apparently, is still conducting, an investigation

into Hoffa’s disappearance. As a result of these investigative

efforts, the FBI has accumulated over 13,800 pages of records

relating to this matter.

In February 1987, Crancer, who is Hoffa’s daughter, filed an

FOIA request with the DOJ, seeking materials about an indi-

vidual who allegedly gave information about Hoffa’s disappear-

ance to the FBI. Crancer’s request was denied on the basis of

Exemption 7(A) of the FOIA, which exempts from disclosure

“records or information compiled for law enforcement purposes,

but only to the extent that the production of such law enforce-

ment records or information . . . could reasonably be expected to

interfere with enforcement proceedings.” 5 U.S.C. §552(b)(7)(A).

In February 1989, after all administrative appeals were de-

nied, Crancer filed suit in district court to obtain an order

' The Honorable Stephen N. Limbaugh, United States District Judge for

the Eastern District of Missouri.

See Vaughn v. Rosen, 484 F.2d 820, 826-28 (D.C. Cir. 1973), cert. denied,

415 U.S. 977 (1974).

> All future references to the United States Code will be to the 1988 version

unless otherwise stated.

— A-36 —

compelling the DOJ to provide her with the documents she

requested. While that suit was pending, Crancer submitted a

second information request that sought any and all documents

relating to the FBI’s investigation into Hoffa’s disappearance.

After this request was denied, Crancer amended her lawsuit to

include the broader request.

In June 1990, the DOJ moved for summary judgment; one

month later, the district court ordered the DOJ to provide Crancer

with a Vaughn index within thirty days for her to use in opposing

the summary judgment motion. The DOJ moved for reconsid-

eration; the district court refused to rescind its order but did grant

the DOJ more time to produce the index. In October 1990, the

DOJ asked the district court to modify its order and allow the

DOJ to provide only the categories of documents contained in

the Hoffa file. At the same time, the DOJ submitted a list of nine

categories that purported to describe all the documents in the file

and an affidavit that described the potential harm to enforcement

activities if these categories of documents were released.

The district court denied this request in January of 1991 and

gave the DOJ twenty days to prepare a full index and submit it

to a magistrate judge for in camera review. One month later, the

DOJ asked the magistrate judge for alternate relief and proposed

to allow the magistrate judge to review the actual documents in

camera. In March, the magistrate judge denied this request, but

afforded-the DOJ more time to prepare the index; the index was

to be completed in one year, with 25% of the index to be

submitted to the court every three months. On April 4, 1991, the

DOJ asked the district court to reconsider the magistrate judge’s

order or, in the alternative, certify the matter for interlocutory

appeal. The district court denied these motions two weeks later,

and the matter has now been brought to this court.

— A-37 —

II. DISCUSSION

A. Jurisdiction

We must begin by deciding whether this court has jurisdiction

to hear this case, either as an interlocutory appeal or as an action

seeking a writ of mandamus. We conclude that the unique

characteristics of this case allow us, on this occasion, to decide

the issues presented by the DOJ.

Mandamus is an extraordinary remedy that is “available only

in those exceptional circumstances amounting to a judicial

usurpation of power,” Jn re Ford Motor Co., 751 F.2d 274, 275

(8th Cir. 1984), or “where the district court exceeds ‘the sphere

of its discretionary power.’” In re Cessna Distrib. Antitrust

Litig., 532 F.2d 64, 68 (8th Cir. 1976) (quoting Will v. United

States, 389 U.S. 90, 104 (1967)). “Other factors which bear on

the appropriateness of mandamus review include the need to

correct error which is likely to recur and to provide guidelines for

the resolution of novel and important questions.” Central Micro-

film Serv. Corp. v. Basic/Four Corp., 688 F.2d 1206, 1212 (8th

Cir. 1982), cert. denied, 459 U.S. 1204 (1983).

Crancer contends that it is within the district court’s discretion

to order creation of a Vaughn index, and consequently the court

did not act outside its jurisdiction in ordering the DOJ to create

an index in this case. The DOJ argues that Exemption 7(A) is

different from other exemptions due to case law from the Su-

preme Court, this court, and other courts of appeal that indicates

it is never appropriate for a district court to require a Vaughn

index when the government agency invokes Exemption 7(A).‘

*Itis this point that differentiates this case from Hinton v. Department of

Justice, 844 F.2d 126 (3d Cir. 1988), which Crancer proffers to demonstrate

that the district court’s decision is not reviewable through mandamus. In

Hinton, the DOJ withheld documents based on Exemptions 7(C) and 7(D) and

did not contend that the district court lacked the power or authority to require

a Vaughn index when Exemption 7(A) is invoked. See id. at 128.

— A-38 —

The DOJ’s argument is a novel one and has not been directly

addressed by any court. If the DOJ is correct in its contention that

the district court lacked authority to order a Vaughn index, then

a writ would be the proper remedy. Because the issue of whether

the writ is available is intertwined with the merits of this

interlocutory matter, we must decide whether the district court

had authority to require a Vaughn-type index in these circum-

stances. Cf. Inre Brotherhood of Ry.. Airline andS.S.Clerks, 605

F.2d 1073, 1074 (8th Cir. 1979) (per curiam) (deciding to reach

merits of dispute because “[i]f the District Court was without

jurisdiction to issue the . . . order, a court of appeals has

jurisdiction to dissolve that order by means of a writ of manda-

mus.”’).°

B. Use of Vaughn Indices and Exemption 7(A)

This case is unique because it is not a review of a district

court’s order that documents be disclosed, nor is it a review of a

district court’s decision that documents are exempt from disclo-

sure. This case asks us to determine what a district court may do

while deciding whether documents are or are not exempt from

disclosure.

The district court has the responsibility to review the applica-

bility of the government’s claimed exemption de novo. 5 U.S.C.

S 552(a)(4)(B). This task is difficult because ordinarily a govern-

ment agency, and not the court, has access to the documents in

question. The seminal case of Vaughn v. Rosen articulated

concerns about the need to find a mechanism that would “permit

* Because of this holding, we need not decide whether the collateral order

doctrine allows us to entertain this appeal. Consequently, we dismiss the

appeal in case number 91-2164EM without deciding whether the collateral

order doctrine applies to this case. We also point out that the analysis and

outcome of this case would not differ if the collateral order doctrine were

applied, so the government is not prejudiced by our decision to dismiss the

appeal.

a ee

— A-39 —

the court system effectively and efficiently to evaluate the

factual nature of disputed information.” Vaughn, 484 F.2d at

826. From these concerns, the D.C. Circuit created what is now

known as a Vaughn index, which does nothing more than

“correlate statements made in the Government’s refusal justifi-

cation with the actual portions of the document.” /d. at 827

(footnote omitted). Currently, a Vaughn index is understood to

perform three important tasks:

[I]t forces the government to analyze carefully any material

withheld, it enables the trial court to fulfill its duty of ruling

on the applicability of the exemption, and it enables the

adversary system to operate by giving the requester as

much information as possible, on the basis of which he can

present his case to the trial court.

Lykins v. Department of Justice, 725 F.2d 1455, 1463 (D.C. Cir.

1984).

There is no prescribed form for a Vaughn index; any form is

acceptable as long as the affidavits provided by the government

assist the court’s efforts to decide the issues at hand. See, e.g.,

Keys v. Department of Justice, 830 F.2d 337, 349 (D.C. Cir.

1987). Regardless of form, however, certain components are

integral parts of any Vaughn index. Specifically, Vaughn indices

usually communicate descriptions of each and every document

contained in the file, including a general description of each

document’s contents and general facts about their creation (such

as date, time, and place). For each document, the exemption

claimed by the government is identified, and an explanation as

to why the exemption applies to the document in question is

provided.®

* Asample index fora single document appears as an appendix to the Third

Circuit’s decision in Conoco /nc. v. Department of Justice,687 F.2d 724, 730-

32 (3d Cir. 1982).

— A-40 —

The government argues the district court lacks the authority to

require a Vaughn index because such an index is not required

when Exemption 7(A) is invoked. The Supreme Court has

indicated that with respect to Exemption 7(A), the government

need not point to a particularized harm to a particular enforce-

ment proceeding; instead, the government may argue (and courts

may hold) that certain general categories of documents will

typically interfere with enforcement proceedings if the docu-

ments are disclosed. NLRB v. Robbins Tire & Rubber Co., 437

U.S. 214, 223-24, 236 (1978). In the wake of Robbins, many

courts of appeal have altered their views on the need for a Vaughn

index when Exemption 7(A) is involved. The rationale underly-

ing these post-Robbins decisions has been that a Vaughn index

is unnecessary because the government is permitted to demon-

strate interference based on categories of documents and need

not demonstrate interference with enforcement proceedings on

a document-by-document basis. E.g., Church of Scientology of

Cal. v. IRS, 792 F.2d 146, 152 (D.C. Cir. 1986) (Scalia, J.);

Barney v. IRS, 618 F.2d 1268, 1273 (8th Cir. 1980) (per curiam)

(“Under exemption 7(A) the government is not required to make

a specific factual showing with respect to each withheld docu-

ment that disclosure would actually interfere with a particular

enforcement proceeding.””). Moreover, in each of these cases, the

appellate court was reviewing a district court’s decision not to

require a Vaughn index when the government had already

provided adequate descriptions of the documents sought, as well

as adequate explanations as to how the particular types of

documents at issue could interfere with law enforcement pro-

ceedings. E.g., Wright v. OSHA, 822 F.2d 642, 647 (7th Cir.

1987); Lewis v. IRS, 823 F.2d 375, 378 (9th Cir. 1987); Curran

v. Department of Justice, 813 F.2d 473, 476 (Ist Cir. 1987).

At no time, however, has an appellate court suggested that

Robbins alters the district court’s statutory obligation to review

the claimed exemption’s applicability. Robbins does not allow

for exemption merely because documents appear in a law en-

es

forcement agency’s file. E.g., Curran, 813 F.2d at 475; Crooker

v. Bureau of Alcohol Tobacco & Firearms, 789 F.2d 64, 67 (D.C.

Cir. 1986). When an agency relies upon Robbins and offers

categorical justifications for exemption under Exemption 7(A),

the agency must still review each document individually. Bevis

v. Department of State, 801 F.2d 1386, 1389 (D.C. Cir. 1986).

More specifically, the agency must perform the following tasks:

First, it must define its categories functionally. Second, it

must conduct a document-by-document review in order to

assign documents to the proper category. Finally, it must

explain to the court how the release of each category would

interfere with enforcement proceedings.

Id. at 1389-90. The district court is well within its authority to

verify that the agency has actually examined and properly

categorized each document. It may accomplish this tack by

requiring an affidavit that describes, on a document-by-docu-

ment basis, the documents in the file, the categories into which

each document is placed, and a description of how disclosure of

each category of documents might interfere with enforcement

proceedings.’ Robbins merely prevents a district court from

ordering a document-by-document explanation as to how each

document will interfere with enforcement proceedings. In other

words, though the district court cannot require the government

to justify its decision to deny disclosure on a document-by-

document basis, it can require the government to justify its

chosen categorization on a document-by-document basis. Fur-

thermore, the district court has the authority to verify that the

” We do not suggest any particular degree of specificity that may be

required, preferring to leave such decisions to the district courts’ discretion

to be exercised on a case-by-case basis.

— oe

government has fullfilled its obligation to examine each docu-

ment individually.®

The government argues that our decision in Barney prohibits

the district court from entering the order at issue here. We

disagree. In Barney, the district court granted summary judge-

ment in favor of the government without requiring the govern-

ment create a Vaughn index. We affirmed the grant of summary

judgment despite the lack of a Vaughn index because both we

and the district court were satisfied that the government’s affida-

vits adequately described the documents, the categories to which

they belonged, and the possible harms of disclosure. /d. at 1272-

73. If the district court is not provided with these materials, or if

it finds the materials provided by the government to be insuffi-

cient, the district court must be permitted to require further

information from the government.

In the case at bar, the record clearly indicates that the district

court was not satisfied with the affidavits supplied by the

government. The district court’s dissatisfaction is understand-

able given the government’s blanket assertion that all 13,800

documents, accumulated over a 15-year span, fit neatly into nine

categories described over the course of five pages. Furthermore,

Crancer raised arguments that, in the district court’s belief,

raised serious questions about the validity of the government’s

search and categorization. The district court has the discretion to

require further categorization as well as assurances that all the

* The district court does have the authority toconduct an in camera review,

5 U.S.C. S 552(a)(4)(B). Although it may be argued that in camera review

might have settled this entire matter, we have indicated that such a procedure

should rarely be used because it disrupts the traditional adversarial process

and because it represents an enormous drain on limited judicial resources.

E.g.,Coxv. United States Department of Justice, 576 F.2d 1302, 1311-12 (8th

Cir. 1978). In light of Cox, and in light of the sheer size of this file, we cannoi

fault the district court for refusing to accept the government’s offer to permit

an in camera review.

sot ysl an.

documents actually belong in the categories. Moreover, the court

may believe it needs information about each document, not only

to verify that the government has fulfilled its obligation to

examine each document, but also to enable it to understand or

challenge the categories created by the government If the

district court is unable to verify that the government has exam-

ined and correctly categorized each document, Exemption 7(A)

will once again become a de facto blanket exemption of all

documents in law enforcement files. See Bevis, 801 F.2d at 1389

(“Absent such individual scrutiny, the categories would be no

more than smaller versions of the ‘blanket exemptions’ disap-

proved by Congress in its 1974 amendment of FOIA.”).

These concerns cannot be alleviated by simply requiring the

government to provide “more specific, distinct categories” as

suggested by the dissent, post at 15. Further categorization is an

appropriate remedy when the district court finds the categories

inadequate, confusing, or otherwise unhelpful. The case at bar

does not present such a situation; instead, the concern at issue is

whether all the documents in the file are described by the

government’s categories. This issue cannot be resolved by

requiring further categorization. Similarly, we do not agree with

the dissent’s view that “[t]he threat of disclosure . . . motivates

the government to make a proper showing that the exemption

applies.” Post at 15. In a situation similar to this one, where the

district court finds itself presented with an insufficient record

upon which to make a ruling, the district court is unlikely to

simply order disclosure. Even if the court were to order disclo-

sure, it is quite likely that this court would remand the case for

further development of the record, thereby saddling the district

court with an inadequate record and no mechanism to insure the

* For instance, the court may believe that 15-year old witness statements

do not belong in the same category as 6-month old witness statements.

However, the court would be unable to differentiate between the two unless

it had information about each witness statement in the file.

a

government’s categories accurately reflect the true contents of

the file. Without an index to perform this vital function, the

district court will be forced to accept the government’s conten-

tions with little to no scrutiny. Consequently, we believe the

effect of the dissenting opinion would be to return “blanket

status” to Exemption 7(A) and deny meaningful disclosure

whenever the exemption is invoked, despite Congress’ intent to

the contrary.

The government also argues that the same court that decided

Vaughn v. Rosen has said that Vaughn indices are inappropriate

when Exemption 7(A) is invoked. A careful reading of these

cases, however, indicates that the D.C. Circuit only disapproves

the use of Vaughn indices insofar as they would be used to

demonstrate how each document would actually interfere with

enforcement proceedings. See, e.g., Church of Scientology, 792

F.2d at 152 (“A Vaughn index would have served no purpose

since... Exemption 7(A) . . . did not require a showing that each

individual document would produce such interference .. . .”);

Crooker, 789 F.2d at 67 (“Because generic determinations [of

interference] are permitted, the government need not justify its

withholdings document-by-document .. . .”). No case from the

D.C. Circuit (or from any other circuit) has prohibited a district

court from requiring descriptions of a file’s contents on a

document-by-document basis. In fact, the D.C. Circuit has

confirmed the government’s obligations to review all the docu-

ments in arequested file and explain how each document fits into

the categories chosen by the government. See Bevis, 801 F.2d at

1389-90. Given this obligation, and given the district court’s

duty to conduct a de novo review of the government’s decision

to not disclose documents, district courts must be able to ask for

this type of document-by-document information. Otherwise,

district courts will be nothing more than rubber stamps for the

government’s decision to deny disclosure. The FOIA does not

permit such a limited role for the district courts.

—

Having concluded that it is within the district court’s power

and discretion to order a document-by-document index, we

cannot grant the government’s application for a writ of manda-

mus. Central Micofilm, 688 F.2d at 1212. (“[A]rguable error

within the scope of trial court discretion is not a proper basis for

mandamus.’’).

Ii. CONCLUSION

Although we agree that invocation of Exemption 7(A) may

alter the form of the Vaughn index, Exemption 7(A) does not

eliminate the need for some mechanism to perform the functions

historically associated with an index. Consistent with this opin-

ion, it lies within the district court’s power to order the govern-

ment to produce a Vaughn index when Exemption 7(A) is

invoked. Furthermore, the district court did not abuse its discre-

tion in doing so in this case. Consequently, we deny the applica-

tion for writ of mandamus and dismiss the interlocutory appeal.

WOLLMAN, Circuit Judge, dissenting.

The majority has decided that it is within the district court’s

authority to order the government to produce a Vaughn index

when exemption 7(A) is invoked. I respectfully dissent.

The majority agrees that NLRB v. Robbins Tire & Rubber Co.,

437 U.S. 214 (1978), and its progeny prohibit a district court

from requiring the government to justify its decision to deny

disclosure on a document-by-document basis. The majority

attempts to avoid this prohibition, however, by holding that

although a district court may not require a specific factual

showing and explanation describing why each document is

exempt, it may require a specific factual showing as to why each

document belongs in a category, along with an explanation

describing why the category itself is exempt. How the govern-

ment can make the latter showing without being required to

make the prohibited showing, the majority does not tell us.

lll

— soo

I see no practical difference between an explanation why each

document is exempt and an explanation why each category of

similar documents is exempt. In both cases, the government

must first provide specific factual information concerning each

document, “including a general description of each document’s

contents and general facts about their creation (such as date,

time, and place).” Majority op. at 6-7. Instead of an individual

explanation for non-disclosure of each document, however, the

majority would require a categorical explanation for non-

disclosure. Because each document must fit into a distinct

category of the same or similar documents, id. at 8, the categori-

cal explanation for non-disclosure must necessarily be the same

or similar as the individual explanations that Robbins Tire

prohibits.

In addition, the majority reads our decision in Barney v. IRS,

618 F.2d 1268 (8th Cir. 1980), too narrowly. The majority

interprets Barney to mean that specific factual information may

be required if the district court is unsatisfied with the government’s

showing that exemption 7(A) applies. Majority op. at 9. Barney,

however, holds that “[u]nder exemption 7(A) the government is

not required to make a specific factual showing with respect to

each withheld document that disclosure would actually interfere

with a particular enforcement proceeding.” Jd. at 1273 (empha-

sis added) (citing Robbins Tire, 437 U.S. at 234-35). Other

circuits have said the same. See, e.g., Lewis v. IRS, 823 F.2d 375,

378 (9th Cir. 1987); Curran v. Department of Justice, 813 F.2d

473, 475 (Ist Cir. 1987); Church of Scientology of California v.

I.R.S.,792 F.2d 146, 152 (D.C. Cir. 1986); Campbell v. Depart-

ment of Health and Human Services, 682 F.2d 256, 265 (D.C.

Cir. 1982).

Under FOIA, the government is required to release requested

information unless a limited exemption applies. See Curran, 813

F.2d at 473. The government has the burden of demonstrating

that the withheld documents are exempt from disclosure, 5

—)

U.S.C. § 552(a)(4)(B), and the district court must make ade novo

determination as to whether an exemption applies. /d. To meet

its burden, however, the government need not provide specific

factual information document-by-document, as Barney clearly

holds. The majority decision severely undermines, if not com-

pletely overrules, Barney.

In Robbins Tire, the Supreme Court pointed out that the very

language of exemption 7(A) contemplates that generic determi-

nations be made and that exemption 7(A) is to be treated

differently from other exemptions. 437 U.S. at 223-24. The

District of Columbia Circuit has reasoned that

[w]hen...aclaimed FOIA exemption consists of a generic

exclusion, dependent upon the category of records rather

than the subject matter which each individual record con-

tains, resort to a Vaughn index is futile. Thus, in NLRB v.

Robbins Tire & Rubber Co.., [citation omitted] the Supreme

Court upheld, without any provision of a Vaughn index, the

Labor Board’s refusal to provide under FOIA witness

statements obtained in the investigation of pending unfair

labor practice proceedings. A Vaughn index would have

served no purpose since . .. Exemption 7(A) did not require

a showing that each individual document would produce

such interference, but could rather be applied generically,

to classes of records such as witness statements.

Church of Scientology, 792 F.2d at 152 (Scalia, J.). Moreover,

under exemption 7(A), “the inherent nature of the requested

documents is irrelevant to the question of exemption” Curran,

813 F.2d at 474 (quoting /rons v. FBI, 811 F.2d 681, 685 (Ist Cir.

1987)). Thus, by holding that the government may be required to

provide specific factual information on a document-by-docu-

ment basis under this generic exclusion, the majority opinion

nullifies the exemption that 7(A) was intended to provide.

as plac

The majority contends that its holding is necessary in order to

insure that exemption 7(A) does not again become a blanket

exemption, arguing that a Vaughn index helps to avoid this result

by allowing the district court to “verify that the government has

examined and correctly categorized each document.” Majority

op. at 10. This concern is misplaced. First, we have stated that

“(t]he federal courts and federal judges are ill-suited to assume

the role of super-administrator in FOIA cases.” Cleary v. FBI,

811 F.2d 421, 423 (8th Cir. 1987) (citation omitted). Second, if

the government cannot meet its burden of demonstrating that the

information is exempt, then the district court remains free to

simply deny the exemption. The threat of disclosure, therefore,

motivates the government to make a proper showing that the

exemption applies.

If the generic index submitted by the government is not

sufficient to sustain the 7(A) exemption, then the district court

may request more specific, distinct categories so that the court

can determine how each category might interfere with the

investigation. Indeed, this is exactly what the District of Colum-

bia Circuit ordered in Bevis v. Department of State, 801 F.2d

1386, 1390 (D.C. Cir. 1986), a case upon which the majority

relies for the proposition that the agency must individually

review each document. While the agency must review each

document to determine its proper categorical placement, id. at

1389, the agency is not required to provide specific factual

information about each document. See Campbell, 682 F.2d at

265.

If the categories remain too general, the courzi may also

examine the disputed documents in camera to make a first hand

determination. 5 U.S.C. § 552(a)(4)(B); Lewis, 823 F.2d at 379;

Cleary, 811 F.2d at 423 (citation omitted) (the court should

utilize “an in camera examination of the [material] itself as an aid

in determining whether the Government’s affidavits are accurate

—~

and made in good faith”); Bevis, 801 F.2d at 1390. The remedy

is not, however, resort to a Vaughn index.'°

Congress enacted exemption 7(A) to prohibit interference in

an ongoing criminal investigation. The Supreme Court’s deci-

sion in Robbins to allow generic category-by-category indices in

Exemption 7(A) cases, rather than requiring detailed factual

information on a document-by-document basis, serves an im-

portant interest: when government confidentiality is at stake

during an investigation, “provision of the detail which a satisfac-

tory Vaughn index entails would itself probably breach the

dike.” Curran, 813 F.2d at 475. In short, the requirement of a

Vaughn index in these cases will cause the cure, exemption 7(A),

“to become the carrier of the disease.” /d.

I would reverse the district court’s order.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS,

EIGHTH CIRCUIT.

'° In Dickerson v. Department of Justice, No. 91-060045 (E.D. Mich. July

31, 1991), the plaintiff sought the release of information from the Hoffa FBI

file and requested a Vaughn index. The court accepted the government’s

categorical index, examined certain documents in camera, and grantcd

summary judgment to the government on the basis of exemption 7(A). The

court stated that it is “satisfied beyond any doubt that the investigation into

Hoffa’s disappearance is active and continuing, with the clear direction of

future criminal proceedings being instituted.” Moreover the court held that

“in Camera inspection mandates that the FBI files not be disclosed.” In the

instant case, the district court refused the opportunity to view documents in

camera.

— A-50 —

APPENDIX C

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

No. 89 - 0234 C (5)

BARBARA ANN CRANCER,

Plaintiff,

VS.

DEPARTMENT OF JUSTICE,

Defendant.

ORDER

[Filed: July 27, 1990]

Upon consideration of plaintiff's motion to compel and the

cases cited therein,

IT IS HEREBY ORDERED that plaintiff's motion to com-

pel preparation of a Vaughn Index is GRANTED.

IT IS FURTHER ORDERED that the United States Depart-

ment of Justice shall serve upon plaintiff within thirty (30) days

of the date of this order an itemized, indexed inventory of every

agency record or portion thereof responsive to plaintiff's FOIA

request which defendant asserts to be exempt from disclosure,

accompanied by a detailed justification statement covering each

refusal to release said agency records or portions thereof in

accordance with the indexing requirements outlined in Vaughn

v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S.

977 (1974). See, Ray v. Turner, 587 F.2d 1187 (D.C. Cir. 1978).

IT IS FURTHER ORDERED that plaintiff shall show cause

within twenty (20) days from the date defendant files its Vaughn

Index why the Court should not grant defendant’s motion for

summary judgment.

—

IT IS FINALLY ORDERED that defendant’s motion for

summary judgment is HELD IN ABEYANCE until such time

when the terms of this Order are complied with.

Dated this 27th day of July, 1990.

/s/ Stephen N. Limbaugh

United States District Judge

_* gaa

APPENDIX D

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

No. 89 - 0234 C (5)

BARBARA ANN CRANCER,

Plaintuff,

vs.

DEPARTMENT OF JUSTICE,

Defendant.

ORDER

[Filed: Aug. 16, 1990]

This matter is before the Court on defendant’s motion to

reconsider this Court’s July 27, 1990 Order in which the Court

ordered defendant to serve upon plaintiff within thirty days a

Vaughn index. In defendant’s motion to reconsider, defendant

maintains that this Court has already denied plaintiff’s motion to

compel a Vaughn index as moot. On February 26, 1990 the Court

granted plaintiff’s leave to file a first-amended complaint. The

Court also ordered that all other pending motions were denied as

moot, as plaintiff would be filing a first-amended complaint.

When the Court issued that order denying all other pending

motions as moot, the Court intended only to deny those motions

that were directly affected by the amendment of the complaint,

i.e., a motion for summary judgment, motion for partial sum-

mary judgment and motion to dismiss. The Court did not intend

to include plaintiff’s motion to compel the Vaughn index within

that order because nothing in the first-amended complaint could

have affected plaintiff’s motion to compel. As there does appear

to be some confusion regarding the matter, however, the Court

will enter an order nunc pro tunc clarifying that all other pending

i

motions were denied as moot except for plaintiff's motion to

compel a Vaughn index, thereby leaving that motion viable.

Upon consideration of the remainder of defendant’s motion to

reconsider, the Court concludes it is also without merit. The

Court finds the case law is clear that it is unfair for a plaintiff to

be expected to pursue her suit regarding a FOIA request when

plaintiff is completely left in the dark regarding the information

she seeks. If plaintiff does not have access to the information

provided through the Vaughn index, she will be unable to

intelligently oppose defendant’s motion for summary judgment.

Defendant is not permitted to rest on its conclusory statement

that the documents plaintiff wishes come under some exception

to the FOIA rules. The purpose of the Vaughn index, as set forth

in Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), is to alleviate

this very type of problem. Thus, in accordance with the clear

weight of authority, the Court will deny defendant’s motion to

reconsider.

Accordingly,

IT IS HEREBY ORDERED nunc pro tunc that this Court's

order of February 26, 1990 is corrected to read “IT IS FUR-

THER ORDERED that all other pending motions are DENIED

as moot, except for plaintiff's motion to compel preparation of

Vaughn index, as plaintiff will be filing a first-amended com-

plaint.” This corrected order remains effective as of February 26,

1990.

IT IS FURTHER ORDERED that defendant’s motion to

reconsider this Court’s July 27, 1990 Order is DENIED.

Dated this 16th day of August, 1990.

/s/ Stephen N. Limbaugh

United States District Judge

—

APPENDIX E

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

No. 89-0234-C-5

BARBARA ANN CRANCER,

Plaintiff,

vs.

DEPARTMENT OF JUSTICE,

Defendant.

MEMORANDUM AND ORDER

Plaintiff, the daughter of James R. Hoffa, brings this suit

against the Department of Justice to challenge its denial of her

Freedom of Information requests for FBI documents regarding

the disappearance of her father.

The Freedom of Information Act provides for disclosure of

agency records upon request. 5 U.S.C. § 552(a). The Act also

enumerates nine categories of records that may be withheld from

disclosure. 5 U.S.C. §552(b). Defendant asserts that exemption

(b)(7)(A) applies. Defendant contends that the information was

compiled for law enforcement purposes and that production of

the records could reasonably be expected to interfere with

enforcement proceedings. /d.

On July 27, 1990, the Court ordered defendant to prepare an

index pursuant to Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir.

1973), to justify withholding of documents to plaintiff. The

purpose of a detailed Vaughn index is to permit meaningful

review of the agency’s claim of exemption by the party seeking

disclosure and the Court. Defendant responded on August 1,

1990, by moving the Court to reconsider its earlier orders,

— A-55 —

contending no Vaughn index is required. On August 16, 1990,

the Court denied defendant’s motion to reconsider. One week

later, the Court granted defendant’s motion for an enlargement

of time until September 30, 1990 to respond to the July 27 Order.

That day came and passed, but defendant still had failed to file

the Vaughn index.

Instead, on October 9, 1990, the defendant moved to modify

the July 27 Order and instead submitted “‘a declaration from a

high-ranking FBI official confirming that the documents re-

quested by plaintiff pertain to an active and ongoing criminal

investigation, and that preparation of a more detailed index

would compromise and jeopardize that investigation.” Defen-

dant has blatantly ignored the Court’s orders and has yet to

respond to the Court’s orders for the Vaughn index. A mere

recitation by the government that documents are subject to a

FOIA exemption will not suffice.

Both parties have moved for summary judgment.' In essence,

plaintiff contends that defendant has failed to justify the with-

holding of the documents and defendant argues the documents

are within Exemption 7(A). Without knowing the nature of the

documents involved, it is impossible for the Court to evaluate the

parties claims. Thetefcre, the defendant must come forward to

the Court with evidence that the documents are entitled to

exemption.

Accordingly,

IT IS HEREBY ORDERED that defendant’s motion for

modification of the Court’s order of July 27, 1990 is DENIED.

‘On November 16, 1990, the defendant moved for summary judgment. On

October 9, 1990, plaintiff filed a memorandum in support of summary

judgment, to which the defendant has responded, although plaintiffs actual

motion for summary judgment was not filed until January 16, 1991.

a

IT IS FURTHER ORDERED that defendant produce for in

camera inspeciion within twenty (20) days of the date of this

order a Vaughn index in compliance with the Court’s order of

July 27, 1990. Failure to file such index on a timely basis could

result in severe sanctions, including, but not limited to, an order

to produce for in camera inspection all documents responsive to

plaintiff’s requests.

IT IS FURTHER ORDERED that plaintiff’s motion to

compel discovery is HELD IN ABEYANCE until the Court’s

receipt and consideration of the Vaughn index.

IT IS FURTHER ORDERED that the parties’ cross motions

for summary judgment are HELD IN ABEYANCE pending the

Court’s receipt and review of the Vaughn index.

IT IS FINALLY ORDERED that this matter is referred to

United States Magistrate William S. Bahn for his/her review of

the Vaughn index and review and recommendation of the par-

ties’ motions for summary judgment.

Dated this 18th day of January, 1991.

/s/ Stephen N. Limbaugh

United States District Judge

— A-57 —

APPENDIX F

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

No. 89-234C(5)

BARBARA ANN CRANCER,

Plaintiff,

v.

U.S. DEPARTMENT OF JUSTICE,

Defendant.

ORDER

[Filed: March 22, 1991]

This matter having come before the Court on Defendant’s

Motion for Relief from Order of January 18, 1991, and, follow-

ing areview of the record and having conferred with counsel, the

Court HEREBY ORDERS that Defendant file an index pursuant

to Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied,

415 U.S. 977 (1974) for in camera inspection of the first

seventeen volumes of FBI Headquarters File No. 9-60052 within

ninety days of the date of this Order.

IT Is FURTHER ORDERED that the Defendant produce a

Vaughn index for the remainder of the documents in three

separate installments of seventeen volumes with each separate

installment to be produced and filed ninety days after the prior

installment is filed.

IT IS FURTHER ORDERED that Defendant commence

preparation of the index forthwith.

Dated this 22 day of March, 1991.

/s/ William S. Bahn

United States Magistrate

— A-58 —

APPENDIX G

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

No. 89-234C(5)

BARBARA ANN CRANCER,

Plaintiff,

v.

U.S. DEPARTMENT OF JUSTICE,

Defendant.

ORDER

This matter is before the undersigned on defendant’s three part

motion responding to the undersigned’s order of March 22,

1991. Defendant requested that said order be set aside. In the

alternative, defendant requested that the Court certify for appeal

the question of whether the Court may order it to produce a

Vaughn index in this matter. Finally, defendant moved for a stay

of said order pending appeal.

The parties appeared before the undersigned on March 22,

1991. At that conference, the undersigned pointed out to defen-

dant that it had been under the District Court’s order to produce

a Vaughn index of the Federal Bureau of Investigation Head-

quarters File No. 9-60052 since July 27, 1990. Judge Limbaugh’s

order of February 28, 1991, made it clear that defendant faced the

prospect of sanctions it if continued to defer compliance with the

three outstanding orders requiring it to produce a Vaughn index.

The undersigned explained that his role was to facilitate

defendant’s compliance with these orders.

To this end he left the parties in the courtroom with instruc-

tions to draft an order for his signature incorporating a schedule

——EEEEEEEE>EyEyEEEE—=S=SESEeeaeooreee

— A-59 —

for complying with the orders to produce a Vaughn index. It is

this order that defendant now seeks to have set aside.

IT IS HEREBY ORDERED that defendant’s motion for

relief from the order of March 22, 1991, is DENIED. IT IS

FURTHER ORDERED that defendant’s motion for an order

for certification pursuant to 28 U.S.C. § 1292(b) is DENIED.

Consequently, IT IS FINALLY ORDERED that defendant’s

motion for a stay of the order of March 22, 1991 pending appeal

is DENIED.

Dated this 11 day of April, 1991.

/s/ William S. Bahn

U.S. Magistrate Judge

—

APPENDIX H

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

No. 89-234 C (5)

BARBARA ANN CRANCER,

Plaintiff,

vs.

U.S. DEPARTMENT OF JUSTICE,

Defendant.

ORDER

IT IS HEREBY ORDERED that the United States Magis-

trate Judge’s order of April 11, 1991 is confirmed and approved

in all respects.

IT IS THEREFORE ORDERED that defendant’s motion

for relief from the order of March 22, 1991 is DENIED.

IT IS FURTHER ORDERED that defendant’s motion for an

order for certification pursuant to 28 U.S.C. § 1292(b) is DE-

NIED.

IT IS FINALLY ORDERED that defendant’s motion for a

stay of the order of March 22, 1991 pending appeal is DENIED.

Dated this 18th day of April, 1991.

/s/ Stephen N. Limbaugh

United States District Judge

—

APPENDIX I

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

No. 89-0234-C-5

BARBARA ANN CRANCER,

Plaintiff,

v.

DEPARTMENT OF JUSTICE,

Defendant.

CATEGORICAL INDEX OF

DOCUMENTS CONTAINED IN

Federal Bureau of Investigation

Headquarters File 9-60052

(James R. Hoffa Disappearance File)

The Federal Bureau of Investigation (FBI) respectfully sub-

mits for the Court’s review the following index of documents

located in FBI Headquarters (FBIHQ) File 9-60052, which is the

file containing the results of the FBI’s investigative efforts

regarding the disappearance of James R. Hoffa on July 30, 1975.

Contained in the 68-volume Jimmy Hoffa disappearance file,

covering a time period from July 30, 1975 to the present, are the

following materials:

A. Documents concerning interviews of potential witnesses,

suspects, associates of Mr. Hoffa and anyone else thought to be

in a position to be helpful in the investigation. Were the FBI to

describe these documents by date prepared or location of the

interview or by revealing the particular FBI field division which

submitted the document, the FBI would inevitably be revealing

to the public information sufficient to enable knowledgeable

individuals, including the perpetrator(s), to ascertain what the

— A-62 —

FBI knew at any given time about Mr. Hoffa’s disappearance

and, furthermore, come to valid conclusions about the identities

of individuals either cooperating with the FBI or suspected by

the FBI as being involved in Mr. Hoffa’s disappearance. Such

knowledge would afford the perpetrator(s) the opportunity to

obstruct the FBI’s investigation by intimidating witnesses, tam-

pering with evidence, constructing false alibis and/or otherwise

misleading investigators.

B. Documents containing telephone toll records. Release of

such information or, alternatively, descriptions of the documents

indicating which particular FBI field division obtained the

records and on what dates would reveal which individuals the

FBI was interested in at a given time. Once again, knowledge-

able individuals would be able to make an informed deduction as

to whom the FBI was targeting at a given time and from whom

the FBI was receiving information. Anyone reviewing this

information would receive a clear picture of the status of the

investigation and would be able to formulate a plan designed to

thwart the investigation, in the manner described above.

C. Documents detailing names of individuals testifying

before a federal grand jury, records subpoenaed by a federal

grand jury, and transcripts of individual testimony before a grand

jury. Release of this information would reveal who said what to

the government about Mr. Hoffa’s disappearance and related

activity, and the extent of documentary evidence in the

government’s possession. Such knowledge would afford the

perpetrator(s) the opportunity to obstruct the FBI’s investigation

by intimidating witnesses, tampering with evidence, construct-

ing false alibis and/or otherwise misleading investigators.

D. Documents submitted by various FBI field divisions

detailing their financial expenditures in connection with, and the

number and names of FBI Special Agents working on, the Jimmy

Hoffa disappearance investigation over a given time period.

— A-63 —

Release of such cost data, or description of individual documents

by date and/or FBI field division, would reveal the extent of the

FBI’s activities in a given area at a given time, thereby giving

knowledgeable individuals insight into the FBI’s assessment

and evaluation of the information contained in its files. Such

knowledge would afford the perpetrator(s) the opportunity to

obstruct the FBI’s investigation by intimidating witnesses, tam-

pering with evidence, constructing false alibis and/or otherwise

misleading investigators.

E. Documents containing the results of strategy conferences

involving high level FBIHQ and FBI field division personnel

and U.S. Department of Justice personnel, in which are set forth

synopses of investigation to date, the FBI’s theories regarding

Mr. Hoffa’s disappearance, the leads being pursued, the suspects

in the case, and the suggested procedure to be followed in future

efforts. These documents contain candid evaluations of suspects

and confidential sources and explicit opinions as to the manner

of proceeding which will afford the greatest chance for success.

Release of such documents would provide a blueprint of the

FBI’s investigation, and would afford the perpetrator(s) the

opportunity to obstruct the FBI’s investigation by intimidating

witnesses, tampering with evidence, constructing false alibis

and/or otherwise misleading investigators.

F. Documents detailing the use and/or suggested use of

certain investigative techniques. These include techniques for

enhancing the memories of interviewees, determining the verac-

ity of their statements, and otherwise improving the FBI’s ability

to evaluate and utilize information gathered during the course of

the investigation. If knowledgable [sic] individuals were to learn

the methods by which the FBI has conducted its investigation,

they could deduce the substance of the investigation. Such

knowledge would afford the perpetrator(s) the opportunity to

obstruct the FBI’s investigation by intimidating witnesses, tam-

=

pering with evidence, constructing false alibis and/or otherwise

misleading investigators.

G. Documents containing information furnished by local law

enforcement agencies. Release of such data would reveal the

location of individuals acting as informants or considered sus-

pects during the course of this investigation. Knowledgeable

individuals would be able to make an informed deduction as to

whom the FBI was targeting at a given time and from whom the

FBI was receiving information. Such knowledge would afford

the perpetrator(s) the opportunity to obstruct the FBI’s investi-

gation by intimidating witnesses, tampering with evidence,

constructing false alibis and/or otherwise misleading investiga-

tors.

H. FBI laboratory reports setting forth the results of examina-

tions of physical evidence. Disclosure of these materials would

permit knowledgeable individuals to identify the physical and

documentary evidence in the FBI’s possession, as well as the

identities of individuals interviewed and/or investigated in con-

nection with Mr. Hoffa’s disappearance. Such knowledge would

afford the perpetrator(s) the opportunity to obstruct the FBI’s

investigation by intimidating witnesses, tampering with evi-

dence, constructing false alibis and/or otherwise misleading

investigators.

I. Memoranda updating the Director of the FBI concerning the

status of the FBI’s investigative efforts. Release of these memo-

randa would reveal and undermine the internal deliberative

processes of the FBI and would reveal the FBI’s candid assess-

ment and evaluation of the information contained in the file.

Such knowledge would afford the perpetrator(s) the opportunity

to obstruct the FBI’s investigation by intimidating witnesses,

tampering with evidence, constructing false alibis and/or other-

wise misleading investigators.

— A-65 —

CERTIFICATE OF SERVICE

I hereby certify that on July 12, 1991, the foregoing Brief For

The Department Of Justice was served by mailing true copies by

overnight mail delivery service to:

Richard E. Greenberg

Rosenblum, Goldenhersh, Silverstein & Zafft, P.C.

7733 Forsyth Bldg., 4th Floor

Clayton, MO 63105

Barbara Ann Crancer

Attorney At Law

7 Edgewood Road

St. Louis, MO 63124

Hon. Stephen N. Limbaugh

United States District Judge

United States Courthouse

1114 Market Street, Room 301

St. Louis, MO 63101

Hon. William S. Bahn

United States Magistrate

United States Courthouse

1114 Market Street

St. Louis, MO 63101

—- a

APPENDIX J

FEDERAL BUREAU OF INVESTIGATION

Date of Transcription 8/14/75

JEFFREY LYNN SCHULTZ, 5323 Fairway Lane, West

Bloomfield Township, Michigan, was interviewed at his place of

business, the Southfield Athletic Club, advised of the identities

of the interviewing Agents and he furnished the following

information:

SCHULTZ, Executive Vice President of the Southfield Ath-

letic Club, advised that on July 30, 1975, he arrived at the club

between 11:30 a.m. and 11:45 a.m. after attending a business

meeting, and he made a tour of the club at 12:30 p.m. SCHULTZ

stated that while on the tour he noticed TONY GIACALONE

getting a message from the club masseur, DOUG RYAN.

SCHULTZ advised that it was approximately 12:45 p.m. when

he saw GIACALONE.

SCHULTZ stated that shortly after 2:00 p.m., GIACALONE

came to SCHULTZ’s office and during the course of their

conversation GIACALONE mentioned he had to get over to the

barbershop for an appointment he had there. SCHULTZ added

that he went past the barbershop on the way to see his wife at 2:30

p.m. and he noticed GIACALONE sitting in the chair getting a

haircut.

SCHULTZ recalls that he later met TONY GIACALONE in

the main lobby of the Travelers Building at approximately 4:00

Interviewed on 8/5/75 at Southfield, Michigan

File # Detroit Si

by SAs JAMES C. ESPOSITO and

DONALD C. BRUTNELL/cjn Date dictated 8/11/75

—*

p.m. SCHULTZ stated that he made acomment to GIACALONE

about his ears being lowered and then he returned to the club and

he does not know where GIACALONE went at that time.

SCHULTZ stated that he had checked the records of the club

for charges and the only charge listed for GLACALONE on July

30, 1975, was for a massage. SCHULTZ advised that there is ro

record of any phone calls for or from GIACALONE on July 30,

1975.

SCHULTZ advised that the next time he saw TONY

GIACALONE was on Saturday, August 2, 1985, when

GIACALONE arrived at the club at approximately 12:45 p.m.

SCHULTZ stated that GIACALONE was alone and the main

reason he [DE S33%§M 2) had come to the club was to meet a

AL KLINE, a salesman for Dalgleish Cadillac Agency.

SCHULTZ stated that he had set up the meeting between

GIACALONE and KLINE as a favor to KLINE who was

attempting to sell GIACALONE a 1976 Cadillac. SCHULTZ

told GIACALONE he did not expect him to show up for the

meeting because of all the recent stories connecting GIACALONE

with the disappearance of JAMES HOFFA. GIACALONE told

SCHULTZ the he was not about to hide his head in a hole

because of some lousy news stories and he wanted SCHULTZ to

call KLINE and set up the meeting for that afternoon.

SCHULTZ advised that GIACALONE told him that he was

going to Bob’s Place, a barbershop located in the lobby of the

Travelers Buildings and to let him know if KLINE would be able

to make the meeting. SCHULTZ called KLINE and set the

meeting for 2:00 p.m. and then went to the barbershop and

advised GIACALONE. SCHULTZ advised that while he was at

the barbershop he noticed CHUCKIE O’BRIEN getting a hair-

cut.

SCHULTZ added that at 2:00 p.m. KLINE and GIACALONE

had a brief meeting in the Southfield Athletic Club and after

— A-68 —

KLINE left, GIACALONE told SCHULTZ that KLINE was

going to work up a price for GIACALONE and then get back to

him.

SCHULTZ stated that as he was leaving the Southfield Ath-

letic Club between 2:30 p.m. and 2:45 p.m., he noticed TONY

GIACALONE and CHUCKIE O’BRIEN sitting on the couch in

the main lobby of the Southfield Athletic Club. SCHULTZ was

just departing in his own car when he observed GIACALONE

and O’BRIEN exit the club together. SCHULTZ does not know

in which vehicles GIACALONE and O’BRIEN departed.

With regards to CHUCKIE O’BRIEN, SCHULTZ advised

that he has known him for a number of years and although

O’BRIEN is not a dues paying member he does use the club on

occasion. SCHULTZ stated that O’BRIEN came into [DE

SEBEB 3) his office at approximately 12:00 p.m. on August

2, 1975, and O’BRIEN made a phone call to RALPH ORR

(Phonetic), of the Detroit Free Press and told ORR to have his

reporters stay away from the Southfield Athletic Club because

the SCHULTZS were being harassed by the press for no reason

at all. SCHULTZ got the impression that O’BRIEN and ORR

were good friends and O’BRIEN’s conversation was in no way

threatening. After the phone cal! O’BRIEN left the club alone.

SCHULTZ further advised that he had not seen CHUCKIE

O’BRIEN for approximately six months prior to his seeing him

on August 2, 1975. Specifically SCHULTZdid not see O’ BRIEN

at the club on July 30, 1975.

SCHULTZ stated that on July 30, 1975, atapproximately 1:00

p.m. - 1:15 p.m. his father LEONARD SCHULTZ, came to the

club and stayed for only ten to fifteen minutes and then left to go

home. JEFFREY SCHULTZ called his father at home at 2:30

p.m. and talked to him about business.

— A-69 —

SCHULTZ furnished the following background information

regarding SCHULTZ:

Name JEFFREY LYNN SCHULTZ

Date of birth November 14, 1950

Place of birth Detroit, Michigan

Business Number 355-0080

Home Number 851-0899

— A-70 —

FEDERAL BUREAU OF INVESTIGATION

Date of transcription 8/5/75

LOUIS CLARK LINTEAU, also known as “The Pope”, was

interviewed at his place of business, Airport Service Lines,

Incorporated, 200 Paddock, Pontiac, Michigan, telephone FE 2-

9145, by SAs RANDOLPH G. PRILLAMAN and ROBERT J.

GARRITY. LINTEAU was advised by SA GARRITY that he

was being interviewed concerning a threat he had received by

telephone and his knowledge of the disappearance of JAMES

RIDDLE HOFFA. LINTEAU furnished the following informa-

tion concerning this matter:

In the early morning of August 1, 1975, JOE ARSENAULT,

who is a dispatcher at Airport Service Lines, called him at

JIMMY HOFFA’s residence. LINTEAU was advised by

ARSENAULT that someone had called for him at Airport

Service Lines and told ARSENAULT that LINTEAU was next

and “he would not have long to wait”. LINTEAU has not

received any further communications from anyone concerning

threats on his life.

Concerning the meeting which JMMY HOFFA and TONY

GIACALONE were to have on July 30, 1975, this meeting had

previously been planned on two other occasions by him.

GIACALONE had requested him to set up three days on each of

these two occasions whereby the meeting could be arranged

between JIMMY HOFFA and TONY GIACALONE. He did

make arrangements with HOFFA for meetings between him and

GIACALONE on two occasions.

Interviewed on 8/4/75 at Pontiac, Michigan

File # Detroit SG

by SAsRANDOLPH G. PRILLAMAN and

ROBERT J.GARRITY/RGP/dmf Date dictated 8/5/75

— A-71 —

Arrangements were made for a meeting on July 15, 16 and 17,

1975. This meeting failed to materialize and was again set up for

the 22, 23 and 24 of July. GIACALONE canceled both of these

meetings. He was not aware of the reason these meetings did not

take place, but he did know that they did not transpire. The next

time he was aware of a meeting being arranged between HOFFA

and GIACALONE was on Saturday, July 26, 1975.

(DE SES88 |

He visited HOFFA at HOFFA’s residence on the morning of

July 26, 1975, and HOFFA told him the meeting is set with

GIACALONE for 2:00 PM Wednesday. He was told by HOFFA

that GIACALONE had been at his residence prior to his arrival.

There was no further discussion between himself and HOFFA

concerning this meeting until Wednesday, July 30, 1975. He and

Ms. CINDY GREEN left Airport Service Lines to go to lunch at

1:20 PM on July 30, 1975. At approximately 3:00 PM, they

returned to Airport Service Lines from lunch and he was told by

ELMER REEVES, whois a dispatcher at Airport Service Lines,

that HOFFA had been by to see him at approximately 1:30 PM.

REEVES advised him that HOFFA told him that he was going

to meet TONY GIACALONE at the Red Fox at 2:00 PM.

At approximately 3:30 PM, July 30, 1985, he received a

telephone call from JIMMY HOFFA whereby HOFFA told him

“Son of a bitch GIACALONE is an hour and a half late for the

meeting”. HOFFA indicated to him that he was leaving the Red

Fox immediately and would stop by Airport Service Lines to see

him on his way home.

HOFFA did not arrive at Airport Service Lines by 5:30 PM on

July 30, 1975, and he left Airport Service Lines at that time with

JOE BANE for an appointment he and BANE had with JOE

LOCHRICCHIO and an individual by the name of

NEEDELANDER (phonetic): This meeting was concerning the

— A-72 —

transportation of various musical groups to and from Pine Knob.

This meeting terminated at approximately 7:15 PM and he was

at his residence, 615 East Tennyson, Pontiac, Michigan, from

approximately 8:00 PM to 10:00 PM.

At 10:00 PM, he arrived back at Airport Service Lines and saw

that he had not received any calls from HOFFA and so he called

HOFFA’ sresidence, telephone number 693-1748. JOSEPHINE

HOFFA answered the telephone and he asked to speak to

JIMMY. He was asked by Mrs. HOFFA “where is my husband”

and he was further advised by Mrs. HOFFA that HOFFA had

never come home and the last time she heard from him was at

approximately 2:15 PM. Mrs. HOFFA advised that HOFFA

asked [DE MNES } her if TONY GIACALONE had called.

He was told by Mrs. HOFFA that she had not received any calls

from TONY GIACALONE and she had told her husband this

and that she had a couple of steaks out for dinner.

At approximately 10:10PM, he called the Red Fox Restaurant

and asked them to page Mr. JAMES RIDDLE HOFFA and he

was told that Mr. HOFFA does not answer his page.

At approximately 10:25 PM, he placed a telephone call to

telephone number 774-2143, which is the residence of TONY

GIACALONE’s son and is the telephone number he has been

given to get in contact with TONY GIACALONE. He talked

with TONY GIACALONE and asked him where was JIMMY

and that he had not come home from his appointment which was

with GIACALONE at the Red Fox. GIACALONE advised him

that he did not know anything about a meeting and he had been

at the Southfield Athletic Club all day. He felt that GIACALONE

was fully aware of the meeting, but he saw that he was not getting

any place by talking with GIACALONE and so he hung up the

telephone.

’ At approximately 10:30 PM, he called JOE BANE and told

him that JIMMY was missing and he had been unable to contact

0 9B

him at the Red Fox. He was advised by BANE that there were

two dining rooms at the Red Fox and he should call back. At

10:45 PM, he called the Red Fox again and determined that no

one had waited on Mr. HOFFA at the restaurant nor had nay of

his credit cards been used.

After this conversation with GIACALONE, he called CINDY

GREEN and they made arrangements to go to JIMMY HOFFA’s

residence to stay with Mrs. HOFFA. He and Ms. GREEN

arrived at the HOFFA residence between 11:30 and 12:00 PM.

He, Ms. GREEN and Mrs. HOFFA discussed whether they

should contact JIMMY PHILIP HOFFA that night to advise him

of the situation. The decision was made to wait until morning

before contacting JIMMY PHILIP HOFFA. In the early morn-

ing of July 31, 1975, JIMMY PHILIP HOFFA was contacted

regarding this matter.

[DE GES88 |

While he was at the HOFFA residence, Mrs. HOFFA was very

upset, she felt something happened to her husband because he

would always call if he was going to be late coming home. Mrs.

HOFFA again told him that JIMMY HOFFA had called at

approximately 2:15 wanting to know if he had received any calls

from TONY GIACALONE. He, Ms. GREEN and Mrs. HOFFA

stayed up until approximately 3:00 AM on July 31, 1975, before

he laid down for a nap.

He awoke at approximately 5:30 AM and observed Mrs.

HOFFA taking coffee to news people who were located on the

street next to the HOFFA residence. After giving coffee to the

news reporters, Mrs. HOFFA returned to the residence and told

him “you have to find JIMMY”.

He left the residence of JIMMY HOFFA at approximately

6:15 AM and arrived at Airport Service Lines at 6:45 AM. Upon

arrival at his office, he called TONY GIACALONE at telephone

—_* oo

number 774-2143. GIACALONE answered and told him he was

making coffee. He then advised GLACALONE that the “little

guy” meaning HOFFA, did not come home last night. He then

asked GIACALONE “where the hell is he”, meaning HOFFA.

He was advised by GIACALONE “maybe he took a trip”. He

reiterated the fact with GIACALONE that he had set up the

meeting but GIACALONE would only state that he was at the

Southfield Athletic Club. LINTEAU was also told by

GIACALONE that “the guy is in the hospital”. LINTEAU did

not know what GIACALONE meant by this statement.

Later that morning he discussed the fact that JIMMY HOFFA

was missing with his employees and from his conversation with

his employees at Airport Service Lines, he felt that HOFFA was

not himself when he came to Airport Service Lines on July 30,

1975. HOFFA appeared to be very nervous to his employees and

was acting very strangely.

At approximately 7:30 AM, he went to the Red Fox Restaurant

and observed a vehicle which looked very similar to HOFFA’s

vehicle, which is a 1974 Pontiac Grand Ville, parked in the

parking lot of the Red Fox. He observed the passenger door

unlocked and observed a small umbrella along with some other

gadgets which are used to insert into the seat belt fastener to

prevent the buzzers from sounding. He knew these items as ones

belonging to HOFFA. He then opened the glove compartment

of the vehicle and observed the registration for the vehicle which

showed that it was registered to JAMES RIDDLE HOFFA.

[DE BEERS |

At approximately 8:00 AM, he returned to Airport Service

Lines and called Ms. GREEN, who was at the HOFFA residence,

and advised her that they had found the car at the Red Fox and

arrangements were being made to have the trunk opened. During

this conversation, GREEN advised him that young JIMMY was

flying to Pontiac, Michigan. He made arrangements to have

JAMES PHILIP HOFFA picked up at the airport.

— A-75 —

Since this time, he has spent his time either at Airport Service

Lines or at the residence of JIMMY HOFFA. During the time he

has been at the HOFFA residence, he has been told by young

HOFFA that a neighbor observed TONY GIACALONE and

BILLY GIACALONE at the HOFFA residence on Saturday,

July 29, 1975. The neighbor’s name is SE GRR.

According to young JIMMY, M@MIMIMIM observed the

GIACALONEs at the residence and felt that something was

wrong. He did not have knowledge that this meeting with TONY

GIACALONE concerned TONY PROVENZANO. He is aware

that there is some hard feelings between HOFFA and

PROVENZANO but he was not aware of any meetings having

been arranged between HOFFA and PROVENZANO.

On August 1, 1975, JIMMY PHILIP HOFFA wanted to meet

TONY GIACALONE in regards to his father’s disappearance.

JIMMY P. HOFFA did call TONY GIACALONE in efforts to

have a meeting but GIACALONE refused to meet with him.

He is a very close personal and business associate of JAMES

R. HOFFA. He has been used by HOFFA and other individuals

as a go between for various meetings and business transactions

between HOFFA and other individuals.

In regards to this, he became acquainted with TONY

GIACALONE through CHUCK O’BRIEN who is the adopted

son of JIMMY HOFFA. He was approached by O’BRIEN in

connection with a condominium located in Bay Harbor, Florida,

that TONY GIACALONE wanted to sell. O’BRIEN introduced

him and GIACALONE and he agreed to purchase this condo-

minium from GIACALONE for $135,000.00, due to the fact it

was close to HOFFA’s residence. Purchase arrangements for the

condominium was [sic] as follows:

[DE SEE |

$10,000.00 down, 20 pre-dated monthly checks each for

$2,500.00 and the remaining $60,000.00 through a mortgage.

— A-76 —

This condominium was purchased by him approximately a year

and a half ago but as of this date, he has not established residence

or has anyone resided in this condominium.

He has had contact with GIACALONE on occasions since the

purchase of this condominium and he has set up arrangements

whereby GIACALONE has made a substantial amount of money.

CHUCK O’BRIEN had been in serious financial troubles over

the past years and JIMMY HOFFA has utilized him to assist

O’BRIEN in these financial problems. O’BRIEN had accumu-

lated numerous debts and had caused HOFFA to spend a lot of

money to take care of these problems. O’BRIEN’s financial

problems were well-known to numerous individuals, in fact in a

conversation he had with TONY GIACALONE, GIACALONE

made mention of the fact that O’BRIEN was into them for a lot

of money which they did not know if he would be able to repay.

He feels that JIMMY HOFFA thinks of O’BRIEN as being a

son and has been very close to him over the years, up until the last

six months. Some serious problem had developed between

HOFFA and O’BRIEN at this time and HOFFA has become very

upset with O’BRIEN.

The only knowledge he has about O’BRIEN is in assisting

HOFFA with O’BRIEN’;s financial problems and attempting to

get O’BRIEN to accept responsibility. During this time was

when JIMMY HOFFA and himself became very close friends

and associates. Prior to this time, he and HOFFA had not been

on a friendly basis. Due to the fact that he was able to assist

O’BRIEN on numerous problems, he became a trusted friend

and companion of JIMMY HOFFA. He feels that O’BRIEN

could be used by enemies of HOFFAs to set him up because

everyone knew that HOFFA was very close to O’BRIEN and

would do anything to protect him or any member of his family.

He feels after talking with individuals who observed HOFFA

on Wednesday, July 30, 1975, that HOFFA was aware of

=

something being very wrong and as a result of this, HOFFA acted

completely out of character. He feels that the reason for the

meeting that HOFFA was to have that day would also contain the

motive of his abduction or death.

LINTEAU was asked by SA GARRITY if he would consent

to a polygraph examination, at which time LINTEAU stated that

he would and executed a Consent to Interview by Polygraph

form.

The following description was obtained from observation and

interview:

Name

Alias

Address

Telephone

Race

Sex

Height

Weight

Hair

Marital status

Wife

Children

Employment

Social Security

Number

Driver’s license

Previous arrests

LOUIS CLARK LINTEAU

615 East Tennyson

Pontiac, Michigan

335-1153

White

MARCELINE

SHARON K. LINTEAU BELL

(adopted)

Airport Service Lines

200 Paddock

Pontiac, Michigan

332-9146

383-18-4061

L 530-549-119-280

1955 charged 4-1/2 months

for Gratuity

Siac iain iat