Petition for Writ of Certiorari — Lynch v. Department of the Treasury

Supreme Court, U.&

(D FILED

991697 APR 2 1 2000

Urricc. UE THE CLERS

In The

Supreme Court of the United States

¢

PETER A. LYNCH,

Petitioner,

DEPARTMENT OF THE TREASURY,

BUREAU OF ALCOHOL, TOBACCO & FIREARMS,

Respondent.

+

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

4

PETITION FOR A WRIT OF CERTIORARI

4

Peter A. LYNCH

Counsel of Record

Sam S. SHELDON

CozEN AND O’CONNOR

501 West Broadway, Suite 1610

San Diego, California 92101

Telephone: (619) 234-1700

Attorneys for Petitioner

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED FOR REVIEW

Whether the Ninth Circuit Court of Appeals may,

consistent with 5 U.S.C. § 552, et al., the Freedom of

Information Act’s (“FOIA”) purpose of wide access to

public records, deny an in camera review of withheld

documents and/or a trial on the merits when proven

agency bad faith conduct exists, that directly conflicts

with the Sixth Circuit Court of Appeals opinion in Jones v.

FBI, 41 F.3d 238, 243 (6th Cir. 1994) and the Eighth Circuit

Court of Appeals opinion in Miller v. U.S. Department of

Agriculture, 13 F.3d 260, 264 (8th Cir. 1993).

ii

PARTIES TO THE PROCEEDINGS BELOW

Peter A. Lynch, petitioner herein, filed the action.

Department of the Treasury, Bureau of Alcohol,

Tobacco & Firearms, respondent.

——— TOT a

iii

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW ............

PARTIES TO THE PROCEEDINGS BELOW.........

CITATIONS TO OPINIONS BELOW................

RF Oe TE eee ree Tee re ee Te

PROVISIONS OF LAW INVOLVED ................

i Bot eS eer ee ree eee eer re

I. ADMINISTRATIVE PROCEEDINGS UNDER

LA or re ee ere eee

Il. THE LOWER COURT PROCEEDINGS .......

EXISTENCE OF JURISDICTION BELOW ...........

REASONS FOR GRANTING THE PETITION.......

I. THE COURT OF APPEALS’ FAILURE TO CON-

DUCT IN CAMERA REVIEW OF THE WITH-

HELD DOCUMENTS WHEN THERE WAS

PROVEN BAD FAITH ACTIONS BY THE

RESPONDENT, CONFLICTS DIRECTLY WITH

OPINIONS IN THE SIXTH CIRCUIT AND

EIGHTH CIRCUIT COURTS OF APPEALS

AND THUS REQUIRES THIS COURT TO SET-

TLE THE CONFLICTING ISSUE AMONG THE

EES ee Me Peer ree eer

oe vada ew ny ia ads ho n9s deawenee ea Ene

iv

TABLE OF AUTHORITIES

Page

FEDERAL CASES

Department of Air Force v. Rose, 425 U.S. 352 (1976) .... 10

EFA. v. Mink, 440 US. 73 (19793) «occ cook vcv vacances 10

Jones v. FBI, 41 F.3d 238 (6th Cir. 1994) ...... 7, 8, 9, 10

Miller v. U.S. Department of Agriculture, 13 F.3d 260

See ee a oo es ee ee 7, 8, 9, 10

FEDERAL STATUTES

28 United States Code

US ED ics aga eh ee ee 1

PE IE fo owe eireeunee see ee 6

5 United States Code

Te x es hn hs A a eee 1

Pe So lee a aes 1

TO THE HONORABLE WILLIAM H. REHNQUIST,

CHIEF JUSTICE, AND TO THE HONORABLE ASSOCI-

ATE JUSTICES OF THE SUPREME COURT OF THE

UNITED STATES.

Peter A. Lynch respectfully petitions for a writ of

certiorari to review the judgment of the United States

Court of Appeals for the Ninth Circuit in this case.

¢

CITATIONS TO OPINIONS BELOW

The opinion of the court of appeals which is the

subject of this petition (App. 1-10, infra) was filed on

January 28, 2000, and is not reported.

The opinion of the district court was entered on June

9, 1998 (App. 11-27, infra) and is not reported.

o

JURISDICTION

The opinion of the United States Court of Appeals for

the Ninth Circuit was entered on January 28, 2000 (App.

1-10, infra). The jurisdiction of this Court is invoked

under 28 U.S.C. § 1254(1).

PROVISIONS OF LAW INVOLVED

The underlying action was based upon 5 U.S.C. § 552,

et al., the Freedom of Information Act (“FOIA”). 5 U.S.C.

§ 552(a)(3) provided petitioner the right to make a request

under FOIA to the respondent:

Except with respect to the records made avail-

able under paragraphs (1) and (2) of this subsec-

tion, each agency, upon any request for records

which (i) reasonably describes such records and

(ii) is made in accordance with published rules

stating the time, place, fees (if any), and pro-

cedures to be followed, shall make the records

promptly available to any person.

When the respondent denied the request and subse-

quent administrative appeal, a complaint seeking injunc-

tive relief was filed pursuant to 5 U.S.C. § 552(a)(4)(B):

On complaint, the district court of the United

States in the district in which the complainant

resides, or has his principal place of business, or

in which the agency records are situated, or in

the District of Columbia, has jurisdiction to

enjoin the agency from withholding agency

records and to order the production of any

agency records improperly withheld from the

complainant. In such a case the Court shall

determine the matter de novo, and may examine

the contents of such agency records in camera to

determine whether such records or any part

thereof shall be withheld under any of the

exemptions set forth in subsection (b) of this

section, and the burden is on the agency to

sustain its action.

STATEMENT OF CASE

On September 23, 1996, a catastrophic fire occurred

on the property located at 5200 Southland Drive, Salt

Lake City, Utah resulting in losses over $1,000,000.00.

a San AT Cats lr ai Sek Ak

Part of the property was insured by Unigard Insurance

Company (“UNIGARD”).

The Salt Lake County Fire Department requested

respondent ATF’s National Response Team (“NRT”) to

assist in the investigation of the fire. NRT is activated

when there is property damage over $1,000,000, or when

the resources needed to investigate an incident exceed

those locally.! Therefore, although ATF is a law enforce-

ment organization, NRT when activated, based upon the

above two factors, is not conducting a criminal investiga-

tion. Additionally, NRT, when activated, does not come in

and take over an incident from the local incident com-

mander. The NRT team leader is responsible for ensuring

that the team is working under the local incident com-

mander’s direction.

On the day of the fire, UNIGARD retained a private

fire investigator, Ronald Campbell, to investigate the

cause and origin of the fire.2 Mr. Campbell arrived on the

fire scene that same day. NRT then directed UNIGARD,

through Mr. Campbell, to bring heavy equipment to the

site. Due to his apprehension of NRT using heavy equip-

ment, Mr. Campbell videotaped NRT’s conduct at the fire

scene.

NRT’s use of this heavy equipment destroyed key

physical evidence at the fire scene.* Mr. Campbell was

then precluded by NRT from retrieving the remains of the

destroyed evidence. In Mr. Campbell’s expert opinion,

1 See journal article, “ATF On Call,” (App. 28-40, infra).

2 See Declaration of Ronald Campbell (App. 64-66, infra).

3 (App. 64-66, infra).

NRT’s use of heavy equipment at the fire scene was not

warranted.

UNIGARD, on the day of the fire, also retained an

attorney, petitioner Peter A. Lynch (“LYNCH”), to assist

them in their investigation of the loss.4 LYNCH is pres-

- ently the legal advisor to the San Diego County Fire and

Arson Task Force.° He is also a legal columnist for the

California Conference of Arson Investigators. LYNCH has

taught courses and published many articles on the subject

of fire scene spoliation. Finally, as an attorney, LYNCH

has handled over one hundred fire cases. Subsequently,

LYNCH on behalf of UNIGARD, and in his own right,

filed a FOIA request about the NRT’s actions at the site.

I. ADMINISTRATIVE PROCEEDINGS UNDER FOIA

On October 15, 1996, pursuant to FOIA, UNIGARD

requested that ATF provide them a copy of all investiga-

tion reports pertaining to the fire.

On November 6, 1996, after not receiving a response,

UNIGARD renewed the FOIA request. On February 26,

1997, when it still had not received a response, UNI-

GARD sent yet another request to ATF by certified mail.

On March 10, 1997, ATF finally responded and

denied UNIGARD’s request asserting that the “release of

these records could reasonably be expected to interfere

4 See Supplemental Declaration of LYNCH (App. 41-49,

infra).

5 See http://www.calaction.com.

ae eee ;

with enforcement proceedings.” On March 19, 1997, UNI-

GARD filed an administrative appeal. On May 6, 1997,

ATF denied UNIGARD’s administrative appeal asserting

the same grounds that it previously provided on March

10, 1997.

II. THE LOWER COURT PROCEEDINGS

On June 12, 1997, UNIGARD filed a Complaint for

injunctive relief against ATF. On August 4, 1997, UNI-

GARD filed a Motion seeking the district court to compel

ATF to compile a Vaughn Index of the withheld informa-

tion. However, on September 14, 1997, the district court

denied UNIGARD’s Motion. Then, on December 13, 1997,

the district court dismissed UNIGARD’s Complaint for

lack of subject matter jurisdiction. The district court ruled

that UNIGARD did not have standing because the FOIA

request was made in LYNCH’s personal capacity and not

on behalf of UNIGARD.

On December 22, 1997, LYNCH filed a Complaint

against ATF seeking injunctive relief against ATF. Speci-

fically, LYNCH was requesting that the district court

order ATF to produce its investigative records related to

the fire scene and that the court sanction ATF for bad-

faith tactics.

On June 9, 1998, the district court, without holding

an oral argument or conducting an in camera inspection of

the withheld documents, issued an order granting ATF’s

Motion to Dismiss or for Summary Judgment and dis-

missed LYNCH’s Complaint in its entirety. The district

court ruled that the release of the information requested

by LYNCH was compiled for law enforcement purposes

and could reasonably be expected to interfere with

enforcement proceedings. However, the district court in

its ruling failed to consider ATF’s bad-faith actions at the

fire scene and its bad-faith actions related to the denial of

the FOIA request.

On August 5, 1998, LYNCH filed a Notice of Appeal

before the Ninth Circuit Court of Appeals. On January 28,

2000, in an opinion not reported, the Ninth Circuit Court

of Appeals affirmed the district court order without

addressing ATF’s bad-faith actions at the fire scene and

its bad-faith actions related to the denial of the FOIA

request.

¢

EXISTENCE OF JURISDICTION BELOW

The district court had jurisdiction under 5 U.S.C.

§ 552(a)(4)(B).

The court of appeals had jurisdiction of the appeal

under 28 U.S.C. § 1291.

REASONS FOR GRANTING THE PETITION

I. THE COURT OF APPEALS’ FAILURE TO CON-

DUCT IN CAMERA REVIEW OF THE WITHHELD

DOCUMENTS WHEN THERE WAS PROVEN BAD

FAITH ACTIONS BY THE RESPONDENT, CON-

FLICTS DIRECTLY WITH OPINIONS IN THE

SIXTH CIRCUIT AND EIGHTH CIRCUIT COURTS

OF APPEALS AND THUS REQUIRES THIS COURT

TO SETTLE THE CONFLICTING ISSUE AMONG

THE CIRCUITS

In the instant case, the Ninth Circuit’s failure to

conduct an in camera inspection and/or a trial on the

merits when there was proven bad-faith actions by the

respondent with respect to its underlying activities

related to the FOIA request and proven bad-faith actions

by the respondent with respect to its denial of the FOIA

request, conflicts directly with the Sixth Circuit Court of

Appeals’ opinion in Jones v. FBI, 41 F.3d 238, 243 (6th Cir.

1994) and the Eighth Circuit Court of Appeals’ opinion in

Miller v. U.S. Department of Agriculture, 13 F.3d 260, 264

(8th Cir. 1993).

At the court of appeals level, conflicting decisions

regarding the issue of when proven bad-faith actions on

the part of the government agency with respect to the

underlying activities related to the FOIA request necessi-

tate an in camera inspection and/or a trial on the merits

are proliferating and the need for guidance from this

Court is acute. This case is a rare opportunity to provide

that guidance.

In Jones v. FBI, the Sixth Circuit faced the same issue

as the Ninth Circuit did in the present case, the issue of

when there is proven bad-faith actions on the part of the

government agency with respect to the underlying activ-

ities related to the FOIA request, whether the court

should accept the government's affidavits alone without

conducting either an in camera inspection and/or a trial

on the merits. The Sixth Circuit held that when there is

evidence of bad-faith actions on the part of the govern-

ment agency with respect to the underlying activities

related to the FOIA request, a court may not grant sum-

mary judgment on the basis of the government's affi-

davits alone without conducting either in camera

inspection and/or a trial on the merits:

where such evidence is strong, it would be an

abdication of the court’s responsibility to treat

the case in the standard way and grant sum-

mary judgment on the basis of Vaughn affidavits

alone. It would risk straining the public’s ability

to believe — not to mention the plaintiff’s — that

the courts are neutral arbiters of disputes whose

procedures are designed to produce justice out

of the clash of adversarial arguments.

Jones v. FBI, 41 F.3d, supra at 242-243. In Jones, the court

further noted that an in camera review is warranted, espe-

cially involving actual agency bad faith — “where it

becomes apparent the subject matter of a request involves

activities which, if disclosed, would publicly embarrass

the agency or that a so-called ‘cover-up’ is presented,

government affidavits lose credibility.” Id.

Similarly, the Eighth Circuit Court of Appeals in Mil-

ler v. U.S. Department of Agriculture, 13 F.3d, supra at 264,

also found that evidence of bad faith can overcome the

government's affidavits necessitating an in camera review

and/or trial on the merits.

——— es —~™

be ete

In the present case, the Ninth Circuit rejected the

holdings in Jones and Miller by stating in a conclusory

manner that “none of Lynch’s allegations of bad faith

indicate that the district court was required to have

engaged in further scrutiny of ATF’s declarations... ”.6

Rather, the Ninth Circuit simply believed that it was

permissible to rely on ATF’s boiler plate affidavits despite

the undisputed evidence showing the following: (1) the

fire scene was destroyed by the ATF;7 (2) ATF’s report

about such destruction has been hidden; (3) an ATF agent

threatened UNIGARD’s lead fire investigator, Mr. Camp-

bell, after an article written about the destruction of the

fire scene appeared in Fire Engineering. “After The Fire’s

Out: Spoliation of Evidence and The Line Firefighter,”

Fire Engineering (January 1998), Vol. 151, No. 1.8 The

author of this article was LYNCH. The article contained

photographs from the subject fire scene showing ATF

agents destroying key physical evidence.? Accordingly,

there is a strong public interest in the public’s right to

know whether the ATF was involved in mishandling

evidence at the fire scene and attempted to cover it up.

This is especially true based on prior misconduct of the

respondent highlighted by Congressional hearings

responding to the Waco, Texas and Ruby Ridge incidents.

© (App. 6, infra).

” See Mr. Campbell’s declaration regarding destruction of

evidence (App. 64-66 infra).

® See a copy of the article (App. 50-63, infra) and LYNCH’s

Supplemental Declaration regarding threat to Mr. Campbell

(App. 47, infra).

% (App. 57, infra).

10

The public has a right to know in the present case if the

respondent was again involved in misconduct.

Yet contrary to the holdings in Jones and Miller, the

Ninth Circuit did not order an in camera review and/or a

trial on the merits although both options would have

ensured a finding that the courts are neutral arbiters of

disputes. Therefore, the Ninth Circuit’s rubberstamping

questionable affidavits after proven agency bad faith

directly conflicts with the holdings Jones and Miller and is

an error necessitating reversal.

The decision in the instant case by the Ninth Circuit

further creates a conflict with the FOIA’s purpose of

providing wide-ranging public access to government doc-

uments. The Act seeks to permit access to official infor-

mation long shielded unnecessarily from public view and

attempts to create a judicially enforceable public right to

secure information from possibly unwilling official

hands. EPA v. Mink, 410 U.S. 73, 80 (1973). Disclosure is

the objective of the Act. Department of Air Force v. Rose,

425 US. 352, 361 (1976). The decision below therefore

contradicts not only the Sixth and Eighth Circuits’ hold-

ings with respect to bad-faith evidence, but also the

express purpose of the Act. The Court should grant cer-

tiorari to review these important conflicts.

In sum, the court of appeals’ split on the availability

of in camera review and/or a trial on the merits when

there is proven bad-faith actions on the part of the govern-

ment agency with respect to the underlying activities

related to the FOIA request is critical. There is no realistic

prospect for resolution of this far-reaching conflict with-

out a decision by this Court. Any appellate decision

11

hereafter will simply side with the Sixth and Eighth Cir-

cuit position or side with the Ninth Circuit and, at best,

shift the weight of authority in one direction or the other

from its current state. As a result of the difficulty of

securing appellate review, trial courts will rarely obtain

guidance from the Federal Courts of Appeals on this

issue, and the opportunities for this Court to review the

issue will be few. This case presents such an opportunity

and the Court should take it.

¢

CONCLUSION

The petition for a writ of certiorari should be

granted.

Dated: April 20, 2000

Respectfully submitted,

CozeEN AND O’CONNOR

Peter A. LYNCH

Counsel of Record

Sam S. SHELDON

Attorneys for Petitioner

App. 1

APPENDIX

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETER A. LYNCH, No. 98-56368

Plaintiff-Appellant, D.C. No.

" CV-97-02290-JNK

DEPARTMENT OF THE MEMORANDUM!

TREASURY; BUREAU OF

ALCOHOL, TOBACCO &

FIREARMS,

(Filed Jan. 28, 2000)

Defendants-Appellees.

eee eae we

Appeai from the United States District Court

for the Southern District of California

Judith N. Keep, District Judge, Presiding

Argued and Submitted January 4, 2000

Pasadena, California

Before: TROTT and W. FLETCHER, Circuit Judges, and

MOLLOY, District Judge.?

' This disposition is not appropriate for publication and

may not be cited to or by the courts of this circuit except as may

be provided by Ninth Circuit Rule 36-3.

* The Honorable Donald W. Molloy, United States District

Judge for the District of Montana, sitting by designation.

App. 2

Overview

Plaintiff-appellant Peter Lynch (“Lynch”) appeals the

district court’s order granting a summary judgment

motion brought by defendant-appellee Department of the

Treasury, Bureau of Alcohol, Tobacco and Firearms

(“ATF”) in Lynch’s action seeking release of records

under the Freedom of Information Act (“FOIA”), 5 U.S.C.

§ 552. The records Lynch requested related to a fire in Salt

Lake City in September 1996. The district court concluded

that ATF properly withheld the records under FOIA’s

exemption for law enforcement records. See 5 U.S.C.

§ 552(b)(7)(A). On appeal, Lynch argues that the district

court did not have an adequate factual basis to make its

decision. Alternatively, Lynch argues that the court erred

in concluding that ATF properly withheld the records

under the “law enforcement” exemption. This court has

jurisdiction pursuant to 28 U.S.C. § 1291. We AFFIRM.

We will not recite the facts of the case here, as the

parties are familiar with them.

3 Under section 552(b)(7)(A), records need not be released

if they are “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) (1996).

A SAME MOAN RED U

App. 3

Discussion

A. Standard of Review

Review of a grant of summary judgment in a FOIA

case is unlike the normal standard for summary judgment

review. Instead of determining whether a genuine issue

of material fact exists, we employ a two-step standard.

First, the court determines whether the district court had

an adequate factual basis for its decision. Fiduccia v.

United States Dep't of Justice, 185 F.3d 1035, 1040 (9th Cir.

1999). If so, the court undertakes a de novo review of the

district court’s conclusion as to the applicability of an

exemption from FOIA’s disclosure requirement. Id. Fac-

tual findings underlying this conclusion are reviewed for

clear error. Id.

B. Adequate Factual Basis

Lynch first argues that this court should remand the

case to the district court because the district court did not

have an adequate factual basis for determining whether

the requested records fell within the section 552(b)(7)(A)

exemption. The district court based its conclusion that the

documents were exempt on the declarations of four indi-

viduals involved in the fire investigation. Citing Lewis v.

IRS, 823 F.2d 375, 380 (9th Cir. 1987), and Weiner v. FBI,

943 F.2d 972, 978 n.5 (9th Cir. 1991), the district court

concluded that neither a Vaughn index‘ nor an in camera

* A Vaughn index is a list of all documents requested by a

FOIA plaintiff, describing the document sufficiently to identify

it, but not so much as to reveal the secret nature of any

App. 4

inspection of the records were necessary when a FOIA

matter involves the (b)(7)(A) exemption.

In reviewing an agency’s decision to withhold

records under FOIA, a district court “may examine the

contents of such agency records in camera.” 5 U.S.C.

§ 552(a)(4)(B) (Supp. 1999). However, “It]he in camera

review provision is . . . designed to be invoked when the

issue before the district court could not be otherwise

resolved.” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214,

224 (1978). While ATF has the burden of proving the

applicability of an exemption from FOIA, see Minier v.

CIA, 88 F.3d 796, 800 (9th Cir. 1996), it may meet this

burden by submitting detailed affidavits showing that the

information and records requested logically fall within

the claimed exemptions. See id.; see also Lewis, 823 F.2d at

378 (“If the affidavits contain reasonably detailed

descriptions of the documents and allege facts sufficient

to establish an exemption, the district court need look no

further.”) (internal quotations omitted); Campbell v. United

States Dep't of Justice, 164 F.3d 20, 30 (D.C. Cir. 1998), as

amended (1999) (“[T]he affidavits must show, with reason-

able specificity, why the documents fall within the

exemption.”); Wright v. OSHA, 822 F.2d 642, 646 (7th Cir.

information. See Vaughn v. Rosen, 484 F.2d 820, 826-27 (D.C. Cir.

1973). When employed by a district court, the government is

typically required to cross-reference each item on the list with

its purported justification for exemption. Id- at 827. The purpose

of the index is to “afford the FOIA requester a meaningful

opportunity to contest, and the district court an adequate

foundation to review, the soundness of the withholding.”

Wiener v. FBI, 943 F.2d 972, 977 (9th Cir. 1991).

App. 5

1987) (“The agency need only provide sufficient informa-

tion to allow a court to review the agency’s claimed

exemption.”). Boilerplate affidavits are not enough to

sustain the agency’s burden. See Wiener, 943 F.2d at

978-79; see also Miller v. United States Dep't of Agric., 13

F.3d 260, 263 (8th Cir. 1993) (stating that FOIA “would

stand as a universal bar against disclosure” if boilerplate,

conclusory affidavits were enough).

ATF’s declarations made clear that the records Lynch

requested included witness statements, reports of investi-

gation, cause and origin reports, photographs, and sur-

veillance authorizations. In addition, the declarations

stated that premature release of these records could harm

the inter-agency task force’s efforts at corroborating wit-

ness statements and determining the possible cause and

motive behind the fire; alert potential suspects as to the

investigation’s existence; disclose the task force’s investi-

gative focus; identify and cause harm to witnesses; inter-

fere with surveillance; or result in destruction of

evidence.

These declarations have much more in common with

the specificity and detail of the affidavits offered in Lewis,

823 F.2d at 378-79, than the boilerplate affidavits other

courts have found insufficient to sustain an agency’s

burden in FOIA cases. See Wiener, 943 F.2d at 978-79:

Campbell, 164 F.3d at 30-31; Wright, 822 F.2d at 646. Unlike

the agencies’ explanations in Wiener and Campbell, which

failed to make any specific references to the subject mat-

ter underlying the records, here the ATF declarations

contextualize their claims for exemption. The declarations

repeatedly refer to the fire and its investigation, note the

specific categories of records in the investigative file, and

App. 6

relate the type of dangers one could reasonably expect to

encounter upon release of the various kinds of informa-

tion. While the declarations did not “tailor the explana-

tion[s] to the specific document withheld,” Wiener, 943

F.2d 979, they are sufficient to show that the information

requested “logically falls within the claimed exemptions.”

Minier, 88 F.3d at 800. Furthermore, under exemption

(b)(7)(A), the government need not “make a specific fac-

tual showing with respect to each withheld document

that disclosure would actually interfere with a particular

enforcement proceeding.” Lewis, 823 F.2d at 380. But see

Fiduccia, 185 F.3d at 1043 (noting, in a case discussing

other (b)(7) exemptions, “[w]here documents are with-

held altogether, the requester needs a Vaughn index of

considerable specificity to know what the agency pos-

sesses but refuses to produce”).

Because ATF’s declarations are sufficiently detailed

and tailored to the case at hand, and because they dem-

onstrate that the requested records logically fall into the

identified FOIA exemption, we conclude that the district

court had an adequate factual basis for its decision in this

case. None of Lynch’s allegations of bad faith indicate

that the district court was required to have engaged in

further scrutiny of ATF’s declarations describing the

records requested and the harm expected to result from

their release.

C. The Applicability of the “Law Enforcement”

Exemption

To qualify for an exemption under section

552(b)(7)(A), the records Lynch requested must have been

App. 7

“compiled for law enforcement purposes” and must “rea-

sonably be expected to interfere with enforcement pro-

ceedings.” 5 U.S.C. § 552(b)(7)(A) (1996). To fit within the

section 552(b)(7) set of exemptions, records need only

have been compiled for a law enforcement purpose at the

time the government invoked the exemption. See John Doe

Agency v. John Doe Corp., 493 U.S. 146, 153-55 (1989). As

ATF’s declarations make clear, at the time Lynch made his

FOIA request, both the ATF and the inter-agency task

force investigations were ongoing. By the time ATF

denied Lynch’s FOIA request, ATF had just closed its own

individual investigation; however, the inter-agency task

force — of which ATF was a member - continued its

investigation. Even though ATF itself may not have been

contemplating any law enforcement proceedings at the

time Lynch’s FOIA request was denied, the records at

issue were related to the inter-agency task force’s investi-

gation. See New Eng. Med. Ctr. Hosp. v. NLRB, 548 F.2d 377

(1st Cir. 1976) (holding that records fit within exemption

even though file from which they came was labeled

“closed,” where they were still closely related to a pend-

ing open case). Because the inter-agency task force’s

investigation continued throughout Lynch’s FOIA

request, it is inconsequential that ATF may have closed its

own individual investigation prior to Lynch’s notice that

his administrative appeal had been denied. Therefore, the

district court correctly concluded that the requested

records were compiled “for law enforcement purposes.”

Similarly, the determination as to whether a release

of records could reasonably be expected to interfere with

enforcement proceedings is to be made as of the time the

agency decided to withhold the documents. See Bonner v.

App. 8

United States Dep't of State, 928 F.2d 1148, 1152 (D.C. Cir.

1991); Institute for justice and Human Rights v. Executive

Office of the U.S. Attorney, No. C 96-1469 FMS, 1998 WL

164965, at *3 (N.D. Cal. Mar. 18, 1998). At the time Lynch

filed his FOIA request, both ATF and the inter-agency

task force were investigating the fire. By the time his

administrative appeal was denied, ATF had closed its

inquiry, but the task force’s investigation continued. The

vitality of the investigation at the time of Lynch’s request

certainly evidences that some legal action was at least

“contemplated” or “in prospect.” See Solar Sources, Inc. v.

United States, 142 F.3d 1033, 1040 (7th Cir. 1998) (records

reasonably expected to interfere with ongoing investiga-

tion even though originally compiled for now closed

investigation that is the subject matter of the FOIA

request at issue); Manna v. United States Dep't of Justice, 51

F.3d 1158, 1164 (3d Cir. 1995) (law enforcement proceed-

ing must be “pending or prospective”); Miller, 13 F.3d at

263 (government may withhold documents where

enforcement proceeding “then pending or contem-

plated”); New Eng. Med., 548 F.2d at 383 (FOIA not

intended to prevent withholding where enforcement pro-

ceeding “pending or in prospect”).

After demonstrating that a law enforcement proceed-

ing exists —- whether “pending,” “prospective,” or merely

“contemplated” — ATF must also show that release of the

requested records could reasonably be expected to “inter-

fere” or “cause some articulable harm” to those proceed-

ings. Manna, 51 F.3d at 1164. The district court concluded

that the ATF declarations - stating that release of the

records would highlight areas of investigative concern,

veo

App. 9

alert potential suspects as to the existence of the investi-

gation, identify possible witnesses, interfere with surveil-

lance, or result in the destruction of evidence — were

sufficient for this purpose. These are similar to the types

of dangers found sufficient for exemption in New Eng.

Med., 548 F.2d at 383, and Wright, 822 F.2d at 647. More-

over, the district court’s conclusion is fully consistent

with Lewis, which held that, under exemption (b)(7)(A),

an agency “need only make a general showing that dis-

closure of its investigatory records would interfere with

its enforcement proceedings.” Lewis, 823 F.2d at 380

(applying earlier statutory language requiring that dis-

closure “would” interfere with enforcement proceedings).

The fact that no governmental agency had, at the

time of Lynch’s request, filed a criminal charge or civil

action relating to the fire proves nothing dispositive

about the active nature of the investigation. Moreover,

that no agency has filed such a charge or action since the

denial of Lynch’s request is not relevant to the question at

hand. See Bonner, 928 F.2d at 1152. If Lynch now believes

that, three years after the fire, no proceeding is currently

pending or contemplated, his recourse is to resubmit an

FOIA request for the records at this time.

Finally, Lynch argues that the district court erred

when it declined to consider his identity in the course of

determining whether release of the records would reason-

ably interfere with enforcement proceedings. Notwith-

standing the Third Circuit's apparently contrary ruling in

Manna, 51 F.3d at 1164, the district court’s decision was

proper under both Supreme Court and Ninth Circuit

precedent. United States Dep’t of Justice v. Reporters Comm.

for Freedom of the Press, 489 US. 749, 771 (1989) (“[T]he

App. 10

identity of the requesting party has no bearing on the

merits of his or her FOIA request.”); Schiffer v. FBI, 78

F.3d 1405, 1411 (9th Cir. 1996) (same).

For the foregoing reasons, it is clear that the records

Lynch requested were compiled for law enforcement pur-

poses, and their release could reasonably be expected to

interfere with enforcement proceedings.

Conclusion

The district court had an adequate factual basis to

determine whether ATF correctly invoked the “law

enforcement” exemption in withholding the records

Lynch requested. Furthermore, the district court correctly

concluded that ATF properly withheld the requested

records. Therefore, we AFFIRM the district court’s order

granting summary judgment for ATF.

App. 11

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

PETER A LYNCH, CASE NO. 97-CV-2290 K

>

Plaintiff, ) (POR)

" ) ORDER GRANTING

“a ) DEFENDANT’S MOTION

DEPARTMENT OF THE ) FOR SUMMARY

TREASURY, BUREAU) JUDGMENT; DENYING

OF ALCOHOL, ) PLAINTIFF’S CROSS-

TOBACCO AND ) MOTION FOR SUMMARY

FIREARMS, ) JUDGMENT; DENYING

ae PLAINTIFF'S REQUEST

sia dennanie FOR IN CAMERA

) REVIEW; AND DENYING

) PLAINTIFF’S REQUEST

) FOR JUDICIAL NOTICE

(Filed Jun. 9, 1998)

Defendant Department of the Treasury, Bureau of

Alcohol, Tobacco & Firearms (“ATF”) has filed a motion

to dismiss or for summary judgment. Plaintiff Peter A.

Lynch has filed an opposition and cross-motion for sum-

mary judgment. Defendant opposes plaintiff's cross-

motion. Both parties are represented by counsel.

I. BACKGROUND

Defendant ATF is an agency of the United States

charged with responsibility for the administration of fed-

eral investigations of potential arson and criminally

related fires. Plaintiff represented Unigard Insurance

Company which Insures a commercial structure that suf-

fered a catastrophic fire loss on September 23, 1996 at

App. 12

5200 Southland Drive, Salt Lake City, Utah (“the site”).

Defendant ATF assumed investigative jurisdiction of the

fire site precluding private parties such as Unigard from

Investigating and accessing the site. Plaintiff asserts that

ATF improperly used heavy equipment on the site during

its investigation.

By letter dated February 26, 1997, plaintiff submitted

a “request for information” to ATF pursuant to the Free-

dom of Information Act (“FOIA”) 5 U.S.C. § 552. Plaintiff

sought information about the site, including (1) all

reports and related records concerning the fire; (2) all

reports and records concerning any testing, inspection or

analysis of any evidence collected at the scene; and (3) all

witness statements and interviews concerning the fire.

(Pla. Exh. C, Letter of 2/26/97).

By letter dated March 10, 1997, ATF denied plaintiff's

request for information alleging that the material was

exempt from public disclosure pursuant to 5 U.S.C.

§ 557(b)(7)(A). This exemption permits a government

agency to withhold “records or information complied for

law enforcement purposes” to the extent that disclosure

“could reasonably be expected to interfere with enforce-

ment proceedings.” On March 19, 1997, plaintiff submit--

ted an administrative appeal, pursuant to 5 U.S.C.

§ 552(a)(6)(A), of the denial of his FOIA request. On May

6, 1997, the appeal was denied on the ground that the

records were exempt from disclosure under the law

enforcement exemption. Specifically, ATF stated that pre-

mature release of the requested investigative materials

would interfere with an ongoing criminal investigation.

App. 13

In late April 1997, ATF closed its investigation of the

fire at the site. (Def. Exh. D(D), Cooper Decl. | 9: Def.

Exh. D(E), Samacki Decl. 4 9). ATF Participates in an

inter-agency arson task force along with the Salt Lake

City Fire Department, Salt Lake County Fire Department,

and the Salt Lake County Sheriff's Department. (Def. Exh.

E, Samacki Supp. Decl. ¥ 1; Def. Exh. F, Barker Decl. { 1).

Members of the task force conduct their investigations

jointly. Id. The Salt Lake County Fire Department, along

with the Salt Lake County Sheriff’s Department, is still

investigating the matter as a part of the inter-agency task

torce. (Def. Exh. E, Samacki Supp. Decl. { 7).

On June 12, 1997, Unigard Insurance Company filed

an action for judicial review of the denial of the adminis-

trative appeal filed by Lynch pursuant to 5 U.S.C.

§ 552(a)(4)(B). Unigard Insurance Company v. Department of

the Treasury, Bureau of Alcohol, Tobacco and Firearms, Case

No. 97-CV-1126-K (AJB). On August 15, 1997, Unigard

tiled a motion seeking to compel ATF to compile, pur-

suant to the holding in Vaughn o. Rosen, 484 F.2d 820 (D.C.

Cir. 1973), cert. denied, 415 U.S. 977, an itemized index of

the materials withheld along with justification for the

refusal to produce each category of records. By order of

September 14, 1997, this court denied Unigard’s motion

to compel production of a Vaughn index, holding that the

materials requested “could reasonably be expected to

intertere with the law enforcement proceeding currently

underway in the State of Utah.” Case No. 97-CV-1126-

K(AJB), Order of 9/14/97 at 8. This court further stated

“[blecause the documents are Properly exempt under

exemption (b)(7)(A), a Vaughn index is not required.” Jd

(citing Miscavtage v. Internal Revenue Service, 2 F.3d 366,

,

App. 14

367 (11th Cir. 1993)). A Vaughn index need not be pro-

duced for exemption (b)(7)(A) withholdings because

(b)(7)(A) is a general exclusion, by which the entire class

of materials is “per se exempt from disclosure regardless

of the content of each document withheld.” Id. (quoting

Weiner v. Federal Bureau of Investigation, 943 F.2d 972, 978

n.5 (9th Cir. 1991)). By order of December 13, 1997, this

court dismissed Unigard’s action for lack of subject mat-

ter jurisdiction, holding that Unigard lacked standing to

bring an action for judicial review of the denial of a FOIA

request where Unigard did not make that request. Case

No. 97-CV-1126-K(AJB). Order of 12/13/97 at 5-6.

On December 22, 1997, plaintiff Lynch filed the

instant action seeking the same relief previously sought

by Unigard in Case No. 97-CV-1126-K(AJB). In dismissing

Unigard’s action, this court found that Lynch made the

FOIA request at issue. Thus, the issue of standing raised

in the prior action is not present here.

Defendant now moves to dismiss plaintiff's action,

or, in the alternative, for summary judgment. Plaintiff

opposes and cross-moves for summary judgment. Defen-

dant opposes the cross-motion. The court notes that both

parties to this action have discussed the filings in Case

No. 97-CV-1126-K (AJB) as if they were filed in this

action. Unless the parties have submitted these filings as

exhibits in this case, they are not part of the record under

consideration here.

Il. LEGAL STANDARD

Federal Rule of Civil Procedure 12(b)(6) allows a

court to dismiss a complaint for failure to state a claim

ae hie

‘

OP Pe Io eT AER ls ee Oe

aA le ea

Selina Mbps 8 ck

App. 15

upon which relief can be granted. Such a dismissal can be

based on either the lack of a cognizable legal theory or

the absence of sufficient facts alleged under a cognizable

legal theory. Balistreri v. Pacifica Police Dept., 901 F.2d 696,

699 (9th Cir. 1990). Under Rule 12(b)(6), a complaint

should not be dismissed for failure to state a claim unless

it appears beyond doubt that plaintiff could prove no set

of facts in support of his or her claim for relief. Levine v.

Diamanthuset, Inc., 950 F.2d 1478, 1482 (9th Cir. 1991). In

applying this standard, the court must treat all of plain-

tiff’s factual allegations as true. Experimental Eng’g. Inc. v.

United Technologies Corp., 614 F.2d 1244, 1245 (9th Cir.

1980). On a Rule 12(b)(6) motion, the court assumes that

all general allegations “embarce whatever specific facts

might be necessary to support them.” Peloza v. Capistrano

Unified Sch. Dist.,.37 F.3d 517, 521 (9th Cir. 1994) cert.

denied, 515 U.S. 1173 (1995). However, the court does not

have to accept as true conclusory allegations that contra-

dict facts which may be judicially noticed or which are

contradicted by documents referred to in the complaint.

See, e.g., Mallis v. United States Bankr. Court, 828 F.2d 1384,

1388 (9th Cir. 1987). The court likewise, is not bound to

assume the truth of legal conclusions simply because they

are stated in the from of factual allegations. Western Min-

ing Counsel v. Watt, 643 F.2d 618, 624 (9th Cir.), cert.

denied, 454 U.S. 1031 (1981).

Rule 12(b) also provides:

If, on a motion asserting the defense numbered

(6) to dismiss for failure of the pleading to state

a claim upon which relief can be granted, mat-

ters outside the pleading are presented to and

not excluded by the court, the motion shall be

App. 16

treated as one for summary judgment and dis-

posed of as provided in Rule 56... .

Federal Rule of Civil Procedure 56(c) provides that

summary judgment is appropriate if there is no genuine

issue as to any material fact, and the moving party is

entitled to a judgment as a matter of law. The movant has

the initial burden of demonstrating that summary judg-

ment is proper. Adickes v. S.H. Kress and Co., 90 S.Ct. 1598,

1608 (1970). The burden then shifts to the nonmovant to

show that summary judgment is not appropriate. Celotex

Corp. v. Catrett, 106 S.Ct. 2548, 2553. To make such a

showing, the nonmovant must go beyond the pleadings

to designate specific facts showing that there is a genuine

issue for trial. Id. However, in considering this motion,

the evidence of the nonmovant is to be believed and all

justifiable inferences are to be drawn in his or her favor.

Anderson v. Liberty Lobby Inc., 106 S.Ct. 2505, 2513 (1986).

III. DISCUSSION

A. Defendant’s Motion to Dismiss or for Summary

Judgment

Defendant moves to dismiss or for summary judg-

ment on the grounds that the information subject to

plaintiff’s FOIA request falls within an exemption to the

disclosure requirements of FOIA. Because this motion

relies on matters outside of the pleadings, the court con-

siders it as a motion for summary judgment under Rule

56.

Under FOIA, a district court has the authority “to

enjoin the agency from withholding agency records and

to order the production of any agency records improperly

App. 17

withheld from the complainant.” 5 U.S.C. § 552(a)(4)(b).

Thus, to obtain an injunction proving defendant from

withholding the information sought, plaintiff must show

that defendant “(‘improperly;’ (2) ‘withheld;’ (3) ‘agency

records.’ ” Kissinger v. Reporters Committee for Freedom of

the Press, 445 U.S 136, 150 (1980). “Judicial authority to

devise remedies and enjoin agencies can only be invoked

if the agency has contravened all three components. .. . ”

Id. Here, both parties agree that defendant withheld

agency records. Thus, the only question before the court

is whether that withholding was improper.

If an agency record is withheld, the withholding is

improer if the document does not fall within a FOIA

exemption. Spurlock v. Federal Bureau of Investigation, 69

F.3d 1010, 1016 (9th Cir. 1995). In determining whether

the withholding was improper, the -court considers

whether the document fell within the exemption at the

time it was invoked by the agency in response to the

FOIA request. Bonner v. United States, 928 F.2d 1148, 1152

(D.C. Cir. 1991) (holding that when a district court

reviews an agency decision to withhold information, that

decision “ordinarily must be evaluated as of the time it

was made.”)

In order to prevail on its summary judgment motion,

defendant must demonstrate that the records fell within

an exemption at the time the exemption was invoked. To

meet its burden of demonstrating that the records fall

within the exemption, defendant may offer, inter alia,

affidavits/declarations of agency employees as evidence.

See Lewis v. Internal Revenue Service, 823 F.2d 375, 378 (9th

Cir. 1987). To defeat this motion, plaintiff must present

some evidence that would raise a genuine issue for trial

App. 18

concerning whether the records fit within that exemption

at the tie defendant invoked it.

Defendant has submitted declarations in support of

its contention that the records at issue fall within the

(b)(7)(A) exemption. Defendant's exhibits include the

declarations of: Robert L. Pritchett, the chief of the

records disclosure branch of ATF (Def. Exh. C(A)); John

Cooper, an ATF Special Agent responsible for monitoring,

coordinating, and supporting field enforcement activities

within the Special Operations area, which includes under

cover operations, witness security, and informant utiliza-

tion (Def. Exh. D(D)); Jeffrey P. Sarnacki, an ATF Special

Agent in the Salt Lake City Field Office who is a Certified

Fire Investigator assigned to the Inter-agency arson task

force which investigates all fires occurring within Salt

Lake City and unincorporated Salt Lake county (Def. Exh.

D(E) and E); and Dennis C. Barker, a Captain in the Salt

Lake County Fire Department and Commander of the

Interagency Fire Investigation Task force (Def. Exh. F).

To show that there remains a genuine issue for trial,

plaintiff has submitted his own declaration and the decla-

ration of Ronald A. Campbell, a Certified Fire Investiga-

tor who was with the Pendleton Fire Department for 27

years and, since retiring, has operated a fire investigation

business for 7 years (Pla. Exh. D).!

Here, defendant asserts that the requested records

fall within FOIA’s law enforcement exemption, 5 U.S.C.

§ 557(b)(7)(A). This exemption provides in pertinent part:

' Campbell was hired by Unigard Insurance Company to

investigate the fire at the site.

App. 19

(b) This section does not apply to matters that are —

(7) records or information complied 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 pro-

ceedings. .. .

5 U.S.C. § 557(b)(7)(A). In 1996, FOIA was amended to

broaden the scope of the (b)(7) exemptions. See e.g. United

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

Press, 489 U.S. 749, 756 n.9 (noting that the amendments

represent “a considered congressional effort ‘to ease con-

siderably a Federal law enforcement agency’s burden in

invoking” the exemption under § 557(b)(7)). The amend-

ments eliminated the former requirement that the records

be investigatory in nature to come under the exemption;

so long as the records are complied for “law enforcement

purposes,” they are exempt. Federal Bureau of Investigation

v. Abramson, 456 U.S. 615, 630-31 (1982).

Defendant submits that there can be no question that

information gathered in an ATF investigation is complied

for law enforcement purposes. The Secretary of the Treas-

ury has statutory responsibility to enforce federal fire-

arms and explosives laws. See Gun Control Act of 1968,

Section 103, Public Law 90-618, and 18 U.S.C. § 847. These

responsibilities have been delegated to ATF by Treasury

Order No. 120-01. See also 27 C.ER. § 70.33. ATF is in fact

a law enforcement agency that was called upon to investi-

gate the fire at the site.

App. 20

Plaintiff contends that there was no law enforcement

purpose involved in this ATF investigation. Plaintiff has

submitted an article about ATF’s National Response Team

that was published in the membership magazine for the

National Fire Protection Association. See Pla. Exh. 2.2

According to plaintiff, the magazine article shows that

there was no law enforcement purpose for the investiga-

tion in which the information was complied, because: (1)

the article explains that when ATF assists in local investi-

gations the leader always ensures that the ATF team

works under the direction of the local chief, and (2) the

article shows that the goal of ATF’s National Response

Team’s investigations is not always to determine criminal

intent. Even if this magazine article were accepted as

evidence, it does not raise a triable issue concerning

whether the information was complied for a law enforce-

ment purpose. First, there is no reason to believe that

ATF’s position as the lead agency or as an assisting

agency in an investigation has any bearing on whether

the information is compiled for a law enforcement pur-

pose. Second, for the purposes of the (b)(7)(A) exemption,

the law enforcement purpose need not relate to proceed-

ings that are criminal in nature. See-Manna v. United States

Dep't of Justice, 51 F.3d 1158, 1165 (3rd Cir. 1995) (includ-

ing civil action within the meaning of “law enforce-

ment”); Injex Indus. v. National Labor Relations Board, 699

F.Supp. 1417, 1420 (N.D. Cal. 1986) (including regulatory

proceedings within the meaning of “law enforcement”).

2 Plaintiff has established no foundation to show that this

article should be considered as any sort of evidence by the

court.

App. 21

The court finds that there is no genuine issue con-

cerning whether the information was complied for law

enforcement purposes. The only remaining question is

whether disclosure of the information “could reasonably

be expected to interfere with enforcement proceedings.”

See 5 U.S.C. § 557(b)(7)(A).

Disclosure of information interferes with law

enforcement Proceedings whenever the government's

case would be harmed by premature release of informa-

tion or where disclosure would impede an investigation

prior to enforcement proceedings. See Bevis v. Dep't of

State, 801 F.2d 1386, 1388 (D.C. Cir. 1986). Again, the court

emphasizes that this determination is made in view of the

circumstances at the time the exemption was invoked. See

Bonner, 928 F.2d at 1152. Thus the court will not address

the parties’ discussions concerning the current status of

any investigation.

Defendant denied plaintiff's request for information

on March 10, 1997, invoking exemption (b)(7)(A). Plaintiff

thereafter filed an administrative appeal of this decision.

By letter of May 6, 1997, defendant informed plaintiff that

his administrative appeal had been denied. At the time

defendant initially denied plaintiff’s request, defendant's

investigation into the fire was ongoing and defendant

determined that release of the files may have hindered

the investigation. (Def. Exh. C(A), Pritchett Decl. { 25-26).

In late April 1997, ATF closed its investigation of the fire

at the site. (Def. Exh. D(D), Cooper Decl. { 9; Def. Exh.

D(E), Samacki Decl. q 9). Contrary to plaintiff’s asser-

tions, ATF’s closure of its investigation is not dispositive

of this issue. Even after an investigation is closed, the

(b)(7)(A) exemption may be applicable if disclosure could

App. 22

be expected to interfere with a related law enforcement

proceedings. See e.g. New England Medical Center Hospital

v. National Labor Relations Board, 548 F.2d 377, 385-86 (1st

Cir. 1976) (applying exemption (b)(7)(A) to closed file

documents where they “remain fully relevant to a specific

pending enforcement proceedings, although, to be sure,

not the one for which they were precisely intended”).

Here, the Salt Lake County Fire Department, along with

the Salt Lake County Sheriff’s Department, continued to

investigate the matter as a part of the inter-agency task

force in which defendant ATF participates. (Def. Exh. E,

Samacki Supp. Decl. { 7). State and local law enforcement

proceedings qualify for the (b)(7)(A) exemption. Cf. Hop-

kinson v. Shillinger, 866 F.2d 1185, 1222 n.27 (10th Cir.

1989).

According to plaintiff, defendant must present docu-

ment by document explanations to show that the infor-

mation would interfere with the investigation. Plaintiff is

mistaken. The Supreme Court has held that the (b)(7)(A)

exemption may be applied generically, rather than on a

document by document basis. See National Labor Relations

Board v. Robbins Tire & Rubber Co., 437 U.S. 214, 224 (1978).

The Ninth Circuit has described (b)(7)(A) as a “general

exclusion.” Lewis v. Internal Revenue Service, 823 F.2d 375,

380 (9th Cir. 1987). Indeed, the Ninth Circuit explained

that a document by document index (“Vaughn index”)

was “not required in Lewis because the entire class of

documents requested was per se exempt from disclosure

regardless of the content of each document withheld.”

Weiner v. Federal Bureau of Investigation, 943 F.2d 972, 978

n.5 (9th Cir. 1991). Thus, neither a Vaughn index, nor a

App. 23

document-by-document in camera review are necessary

when the matter involves the (b)(7)(A) exemption.

Here, the declarations submitted by defendant list

the types of information by category and give an explana-

tion of how the information could interfere with the

investigation. According to the Samacki declaration, the

information includes witness statements, reports of inves-

tigation, cause and origin report, photographs, and sur-

veillance authorizations. Def. Exh. E, Samacki Decl. q 6.

Defendant asserts that release of any records, including

photographs, would highlight areas of investigative con-

cern. Id. According to the Pritchett declaration, which

also lists the information by category,? at the time plain-

tiff’s request was denied, “it was ATF’s belief that the

release of these records could, among other things, alert

potential suspects as to the existence of the investigation,

identify possible witnesses, interfere with surveillance, or

result in the destruction of evidence.” Def. Exh. C(A),

Pritchett Decl. { 26. Defendant has satisfied its burden of

showing that disclosure of the information could reason-

ably be expected to interfere with law enforcement pro-

ceedings.

The court finds that plaintiff's arguments concerning

alleged spoliation of evidence at the fire scene by ATF are

* The Pritchett declaration also lists the types of

information in the file, but omits “photographs” as a category.

Def. Exh. C(A). Pritchett Decl. ] 24. Plaintiff asserts that the

absence of photographs from Pritchett’s declaration shows that

defendant is acting in bad faith in this action. Defendant

voluntarily informed the court that photographs should have

been included, but were omitted by clerical error. See Def. Exh.

C. The court does not find that defendant acted in bad faith.

App. 24

completely irrelevant to the issues before the court on

this action for judicial review of a FOIA decision.

Whether such spoliation is actionable has no bearing on

the issue of whether, under FOIA, ATF should be required

to disclose the information. The court therefore finds

irrelevant any evidence of such spoliation. This court

makes no determination of whether plaintiff may be able

to bring some cause of action against ATF in relation to

the spoliation allegations.

Defendant establishes that (1) the information was

compiled for law enforcement purposes; and (2) law

enforcement agencies continued to investigate the fire at

the time plaintiff’s request was denied and at the time his

administrative appeal was denied, such that release of

information could reasonably be expected to interfere

with enforcement proceedings. Plaintiff fails to raise any

genuine triable issue. Accordingly, the court grants

defendant’s motion for summary judgment.

B. Plaintiff's Cross-Motion for Summary Judg-

ment

For the same reasons that the court grants defen-

dant’s motion for summary judgment, the court denies

plaintiff’s cross-motion for summary judgment. Plaintiff

cannot show that, as a matter of law, the records do not

fit within the (b)(7)(A) exemption.

C. Plaintiff's Request for Judicial Notice

Plaintiff requests that the court take judicial notice of

the videotape evidence of spoliation filed in Case No. 97-

App. 25

CV-1126-K(AJB) and the declaration of Ronald A. Camp-

bell filed in that case. Plaintiff wants to ensure that the

court considers these items of evidence in deciding these

cross-motions. First, as noted above, any declarations

resubmitted as exhibits in this action are part of the

record in this case. Because plaintiff has attached the

Campbell declaration as an exhibit in this case, it is part

of this record and has been considered. Plaintiff's request

for judicial notice as to this document is denied as unnec-

essary.

Plaintiff did not submit the videotape as an exhibit in

this case. Therefore it is not part of this record. The court

would reach no different result on these cross-motions

even if the videotape were considered. As noted above,

the court finds that the allegation of spoliati on, which the

videotape supports, has no bearing on the issues before

the court in determining these cross-motions. The court

finds that the videotape is not the proper subject of

judicial notice.

IV. CONCLUSIONS

For the foregoing reasons, the court GRANTS defen-

dant’s motion for summary judgment and DENIES plain-

tiff’s cross-motion for summary judgment. The court also

DENIES plaintiff’s motion for document-by-document in

App. 26

camera review and DENIES plaintiff’s request for judicial

notice.

IT IS SO ORDERED.

DATED: 6-8-98 /s/ Judith N. Keep

JUDGE JUDITH N. KEEP

United States District Court

Southern District of California

App. 27

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

JUDGMENT IN A CIVIL CASE

Case Number: 3:97-cv-02290

(Filed June 10, 1998)

Lynch - plaintiff

v.

Treasury — defendant

[ ] JURY VERDICT. This action came before the Court

for a trial by jury. The issues have been tried and the

jury has rendered its verdict.

[X] DECISION BY COURT. This action came to trial or

hearing before the Court. The issues have been tried

or heard and a decision has been rendered

IT IS ORDERED AND ADJUDGED

Clerks Judgment: Defendant’s motion for summary judg-

ment is granted; Plaintiff’s motion for summary judg-

ment is denied; Court denies Plaintiff’s mot for

document-by-document in camera review and denies

Plaintiff's request for judicial notice; terminating case (cc:

all counsel)

6/10/98 Roberta Westdal

Date . Clerk

/s/ R. Bressi

by R. Bressi, Deputy Clerk

Entered on 6/10/98

pre — Keep

ref — Porter

App. 28

THE OFFICIAL MAGAZINE OF THE

NATIONAL FirRE PROTECTION ASSOCIATION

NFPAJourRNAL

May/June 1998

ATF

ON CALL

ATF’s National Response Teams can help local agencies inves-

tigate fires that are too big for them to handle alone.

Ed Comeau

Any fire investigation, no matter how small, requires a

range of skills and disciplines. A smaller incident may be

investigated by a few people from the local fire depart-

ment or state fire marshal’s office. If an incident is of such

catastrophic proportions that an investigation would

exceed the abilities of the local authority, however, there’s

a resource to call upon: the Bureau of Alcohol, Tobacco

and Firearms; (ATF) National Response Team (NRT).

There are four NRTs distributed across the country

made up of agents from throughout ATF. By bringing

together a team of specialists to work on an incident, it’s

possible to “blitz” the incident with resources in a very

short time - which is critical when conducting a fire

investigation. Until proven otherwise, every fire scene is

treated as a crime scene. If a crime has been committed,

it’s critical to gather the necessary evidence and try to

apprehend the guilty party. Unless the site is secured,

evidence may be lost or destroyed quickly, and witnesses’

recollections can become distorted, or even fade, with

time. Applying the wide range of resources available

through an NRT, the local fire department has the oppor-

tunity to process a scene quickly but thoroughly.

App. 29

At the request of the local authority having jurisdic-

tion (AHJ), ATF will mobilize at least 15 NRT members

and provide the local incident commanders with exten-

sive support in determining the cause and origin of a fire

or explosion. Even though ATF is a law enforcement

organization, the goal of the NRT investigation isn’t

always to determine criminal intent. While a number of

NRT investigations have resulted in arson prosecutions,

the outcomes of others have determined that the fires

weren't incendiary.

History of the NRTs

The first two NRTs were established in 1978 after the

Organized Crime Control Act of 1970 granted ATF the

authority to investigate and prosecute incidents involving

explosive devices. While the act Originally limited the

scope of the NRTs’ investigations to explosions, Special

Agent Ed Garrison notes that enterprising ATF agents

managed to prosecute a case where the defendants used

gasoline to burn a commercial building. The theory was

that gasoline, when combined with air, met the definition

of an explosive and thus qualified as a crime.”

Realizing that it couldn’t effectively respond within

24 hours of an incident using only two teams, ATF estab-

lished two more NRTs in 1980. The four teams are located

in the Midwest, the Northeast, the Southeast, and the

Western regions of the United States. In 1982, Congress

expanded ATF’s jurisdiction to include incidents involv-

ing fires as well as explosives through the Glenn Amend-

ment, introduced by Senator John Glenn of Ohio.

~ App. 30

Since 1978, NRTs have been activated 392 times to

conduct investigations involving 492 deaths, 2,465 inju-

ries, and property damage estimated in the billions of

dollars. Among the NRTs’ investigations are the world

Trade Center bombing in New York City in 1993, the

Oklahoma City bombing in 1995, the TWA 800 crash off

Long Island in 1996, and the Olympic bombing in Atlanta

in 1996.

Other investigations have included a warehouse fire

in New Orleans that destroyed a 1-million-square-foot

building; a fire in Seattle, Washington, that killed four

firefighters; an apartment building fire in Bremerton,

Washington, that killed four residents; and a bourbon

distillery fire in Kentucky that resulted in more than $5

million in damage.

Responses reached an all-time high in 1997 when the

NRTs were activated 39 times. They were deployed 22

times in 1996, and 19 times in 1995. In the first three

months of 1998, the NRT had already been activated five

times.

Structure of the NRT

Each NRT regional team involves 30 ATF agents and

specialists, and each is self-sufficient in terms of skills

and disciplines. An average NRT response will include 15

agents and specialists cross-trained in several of these

disciplines. \

Team members include a team leader, who’s respon-

sible for coordinating the NRT’s operations with local

officials, and a team supervisor, who manages the team,

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App. 31

determining the team members’ assignments and ensur-

ing that they have the necessary tools and equipment to

perform their jobs. Each team also has at least one certi-

fied fire investigator (CFI), responsible for determining

the origin and cause of the fire; an explosives enforce-

ment officer (EEO), responsible for evaluating any explo-

sive devices or remains found on the scene; and a fire

protection engineer (FPE), a relatively new addition to

the team. An FPE is invaluable in evaluating a building’s

design features, determining the role of suppression sys-

tems in a fire, and analyzing fire spread through com-

puter modeling.

[Pictures Omitted In Printing]

The team also includes a photographer to thoroughly

document the scene. The scene is also documented with

schematics of the structure and its contents, the locations

of the victims, and evidence.

A forensic chemist, a canine accelerant handler, and

an evidence technician are also part of an NRT. The

forensic chemist is responsible for gathering evidence

that will be sent for further analysis to a local or state

forensics laboratory or to one of ATF’s labs in Rockville,

Maryland; Atlanta, Georgia; or San Francisco, California.

The canine handler uses dogs to determine whether accel-

erants were used. ATF has roughly 45 dogs paired with

State or local authorities throughout the United States.

The evidence technician coordinates the collection of evi-

dence, keeps the evidence logs, and maintains the evi-

dence chain of custody until it’s turned over to the local

law enforcement agency.

App. 32

There are several specialties that only qualified per-

sonnel can fill, but many NRT members are cross-trained

in a variety of disciplines and can fill different positions

at an incident. This versatility allows for a much stronger,

integrated team approach.

NFPA and ATF Partnership

NFPA’s fire investigators often work closely on fire

scenes with ATF in a partnership that’s grown over the

years as each organization realizes the skills and abilities

the other has to offer. With the addition of fire protection

engineers to the NRT callouts, this alliance has become

even closer.

Some recent incidents at which NFPA has worked in

conjunction with ATF include the World Trade Center

explosion in New York; the Oklahoma City bombing; a

warehouse fire in Seattle, Washington; a warehouse fire

in New Orleans; the Treasury building fire in Washing-

ton, D.C.; an apartment building fire in Bremerton, Wash-

ington; and a retail store fire in Mableton, Georgia.

In addition to these responses, ATF uses NFPA’s

investigators as guest lecturers during training programs.

NFPA is also a partner in the development of an interac-

tive CD-ROM training program for fire investigators and

is participating in the design of the new ATF fire test

center in Maryland. In turn, ATF has helped NFPA

develop the script for and film a new six-part video

series, “Fire Investigations.”

This alliance has greatly enhanced the NFPA’s fire

investigations team’s ability to gather critical information

dy

App. 33

at fire scenes and has given ATF greater access to NFPA’s

broad expertise. Such a partnership has been a significant

“win-win” situation for both organizations.

Training NRT members

NRT training is extremely varied because of the unusual

conditions team members encounter during incidents.

“One year, the entire team was trained to use Bob-

cats™ for debris removal,” says Special Agent Jack Mal-

ooly, who’s been with the NRT program since 1980 and is

both a CFI and an EEO. According to Malooly, it’s often

necessary to use these small front end loaders and, since

a fire scene is a potential crime scene, ATF wanted to

reduce the number of civilians in such areas.

Other training programs have included how to oper-

ate oxyacetylene torches, as well as teaching sessions by a

pathologist. The recent addition of surveying equipment

on response trucks calls for still more specialized train-

ing.

“This equipment allows us to locate and map, very

accurately, the lay out of a building and the location of

evidence in relation to the building,” says Malooly.

The team leaders and team supervisors have also

been sent to advanced EPA hazardous materials schools,

and this year’s training program included topics such as

evidence spoliation, critical incident management, court

testimony, case studies, and interviewing - all in addition

to the normal training required annually.

App. 34

Equipment on the NRT

To support the NRTs, ATF has 38 vehicles distributed

across the United States that are essentially rolling fire

investigation toolboxes. Each vehicle’s equipment ranges

from pop-up shelters to latex gloves. Because digging out

a fire scene and collecting evidence is manual labor, each

truck carries a collection of shovels, saws, brooms, and

other tools.

The trucks also carry a variety of personal protective

equipment, including helmets, gloves, turnout clothing,

respirators, and splash suits. As part of scene safety,

teams implement an accountability system using name

tags for each agent.

Among the equipment used to document a fire scene

are 35-mm cameras, video cameras, drafting equipment,

and tape recorders. The trucks also carry a fax machine

and a copier, as well as reference books, such as NFPA’s

Fire Protection Handbook and the Fire Protection Guide to

Hazardous Materials.

In the truck are areas in which witnesses can be

interviewed, video-tapes watched and copied, and equip-

ment repaired.

ATF brings technology to the fire scene by using

electronic surveying equipment, which allows investiga-

tors to map a building and the locations of debris and

evidence much more accurately than they could using a

tape measure. Other high-tech applications include com-

puter models to help recreate fire scenes. All CFIs are also

provided with rugged, military versions of laptop com-

puters to use during investigations. |

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To help identify critical areas of a building, NRTs use

global positioning systems. By identifying the longitude

and latitude of a building, says Malooly, agents can get

information about potential lightning strikes from the

National Weather Service.

Evidence contamination is a big concern at any fire

scene. To avoid cross-contamination of evidence, tools are

thoroughly washed after every use and when they’re

being used in different areas. And wash lines are set up

so everyone entering and leaving the fire scene can clean

their footwear.

The trucks also carry power tools such as saws and

drills. To avoid introducing any gasoline to the fire scene

that might be mistaken for an accelerant, however, these

tools are electrically powered by a generator on the truck.

Activating an NRT

When NRTs were first formed, the threshold for activa-

tion was property damage over a million dollars or sig-

nificant loss of life or injury. However, this has been

changed over the years to allow for more latitude in

determining when an NRT is needed. A team can now be

called in when the resources needed to investigate an

incident exceed those available locally.

According to Mike Bouchard, chief of ATF’s Arson

and Explosives Branch, getting in touch with the local

ATF special agent in charge (SAC) is the first step in

activating an NRT. The local fire department or law

enforcement agency asks the SAC to look into its prob-

lem, and the SAC sends a representative to evaluate the

App. 36

incident. If they feel that an NRT callout is required, ATF

headquarters in Washington is notified. The team leader

for the NRT in that area is then notified and assembles

the team from the agents available in the region. These

agents are usually drawn from those assigned to the

region’s team, but agents from across the country can be

called upon to fill out the response.

The objective is to assemble the team and be on the

scene within 24 hours of activation. The local ATF office

plays a pivotal role in the initial stages of an incident by

providing agents to help secure the scene, to identify

potential witnesses to be interviewed, and to make logis-

tical arrangements, such as lodging and transportation.

Local ATF agents continue to assist throughout the inves-

tigation in a variety of roles.

When the NRT arrives on the scene, the team leader

and the team supervisor get an initial briefing from local

fire and police officials. The function of the NRT is to

support the local efforts.

“ATF doesn’t come in and ‘take over’ an incident

from the local incident commander,” according to

Bouchard. “Our goal is to work with the local authori-

”

ties.”

Throughout the course of the on scene investigation,

briefings are held twice a day, once in the morning before

work starts to outline the objectives for the day, and again

at the end of the day to summarize the findings and

correlate all of the information obtained. These briefings

are critical to a smooth operation, since information is

gathered from so many different sources. Information

provided by a witness, for example, can be critical in

App. 37

determining the direction that the on-scene digging may

take.

The NRT has two major functions: interviewing and

scene documentation and reconstruction. Both are critical

in recreating the sequence of events surrounding a fire or

explosion.

Interviews help the NRT identify potential witnesses

who can help determine cause and origin. An agent is

placed in charge of coordinating all the interviews, and a

center is established to manage the activities of the inter-

view teams and to correlate the information they obtain.

Whenever possible, ATF agents and local law enforce-

ment or fire officials conduct the interviews together.

Information from the interviews is collected in a cen-

tralized computer database called ASCMe, which stands

for “advanced serial case management.” This system cor-

relates the data gathered from the myriad interviews and

helps determine either common factors in, or discrepan-

cies between, people’s accounts.

Scene documentation is an arduous and time-con-

suming process in which all of the phases of debris

removal and evidence collection are painstakingly

recorded. Removing debris can be as simple as shoveling

wreckage into wheelbarrows, or it may involve the use of

Bobcats or heavy equipment.

Scene documentation can be physically demanding.

One of Special Agent Lynne DeMent’s more memorable

experiences occurred one July at a hazardous materials

scene in Houston, Texas, where all of the investigators

spent the week wearing SCBAs in 95°F weather.

App. 38

“What a week that was,” says DeMent.

When an investigation is completed, the ATF agents

and the local officials meet to determine the next course

of action based on the evidence uncovered. If a criminal

prosecution is warranted, the local district attorney and

the local U.S. attorney become involved to decide

whether the case will be tried locally or on the federal

level. At this point, all the information and evidence

gathered during the investigation is turned over to the

local ATF office and the local authority.

On average, an NRT is on the scene for three to four

days, at a cost of about $15,000, all at no cost to the local

jurisdictions.

Chief Superintendent Warren McDaniels of the New

Orleans Fire Department has used NRTs four times since

1991. When asked to describe how they operated, his

immediate response was “highly professionally.” Chief Al

Duke of the Bremerton, Washington, Fire Department

echoes McDaniels’ sentiments. He recently asked the NRT

to assist at a large apartment complex fire in which four

residents died.

“The ATF brings resources to bear on an incident that

are simply not available within our department,” Duke

says. “We would have been there three weeks trying to

dig out the scene.” Both chiefs emphasized how careful

the ATF is to avoid the appearance of taking over an

incident. At all times, the NRT team leader made sure

that the team worked under the chief's direction.

As part of the federal Government Performance

Review Act (GPRA), government agencies are now

App. 39

required to ensure that they’re responding to the needs of

the people they serve. To this end, ATF conducts a follow-

up survey with the AHJ after an incident is over.

Bouchard notes that most surveys come back indicating

overwhelming satisfaction with the level of service pro-

vided. One of the major complaints, if it could be called a

complaint, is that local authorities wish the teams could

remain on the scene longer.

International Response Team

Recently, the concept of the NRT was expanded to the

international arena through an International Response

Team (IRT).

“The IRT is activated at the request of the Depart-

ment of State for any fire or explosion in the world

against U.S. interests,” says Bouchard. A formal agree-

ment between ATF and the Department of State’s Diplo-

matic Security Service was initially designed to support

the Diplomatic Security Service’s own investigations, but

it has since been expanded to provide “technical / forensic

assistance and oversight to foreign governments on for-

eign territory.”

The IRT has responded to 13 incidents throughout

the world, including vehicle bombings, embassy attacks,

and assassinations in countries such as Peru, Argentina,

El Salvador, Ecuador, Pakistan, Grenada, Korea, Mac-

edonia, and Surinam. A typical IRT response is composed

of at least two people - a supervisory agent and a CFI or

EEO, depending upon the nature of the incident.

App. 40

As the use of NRTs expands, their effectiveness

improves. Faster response times, improved training and

equipment, expanded staffing, and more expertise in the

field are creating a valuable federal resource.

Ed Comeau is NFPA’s chief fire investigator.

App. 41

Graeme A. Reid, Esq.

Bar No. 171190

Sam S. Sheldon, Esq.

Bar No. 190502

COZEN AND O’CONNOR

501 West Broadway, Suite 1610

San Diego, California, 92101-3536

(619) 234-1700

Attorney for Plaintiff

PETER A. LYNCH

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

PETER A. LYNCH, CASE NO.

Plaintiff, 97-CV-2290R (POR)

SUPPLEMENTAL

V.

DEPARTMENT OF

THE TREASURY,

BUREAU OF

)

)

)

) DECLARATION OF

)

)

ALCOHOL, TOBACCO

)

)

)

)

PETER A. LYNCH

DATE: May 4, 1998

TIME: 10:30 a.m.

CTRM: 5

(Hon. John S. Rhodes)

(Filed Mar. 17, 1998)

AND FIREARMS,

Defendant.

)

I, PETER A. LYNCH, do hereby depose and say:

1. I obtained a B.S. degree in criminal corrections

from Illinois State University with high honors in 1981.

2. I obtained a J.D. degree from Southern Illinois

University School of Law at Carbondale in 1984.

App. 42

3. I was on active duty as a Captain with the United

States Marine Corps from 1984 to 1987 as a criminal

prosecutor and defense attorney.

4. I ama certified fire and explosion investigator. |

have been certified since November 23, 1990.

5. [ama senior partner with the law firm of Cozen

and O’Connor in its San Diego, California office.

6. I have handled a minimum of one hundred fire

cases (overly conservative effort) with Cozen and O’Con-

nor for corporate clients, insurers and private individ-

uals.

7. I was originally hired by Unigard Insurance

Company to assist them with their investigation of this

fire loss at 5200 Southland Drive, Salt Lake City, Utah

which is the basis of this FOIA action. Also hired to

conduct the cause and ongin investigation was Mr. Ron

Campbell. The fire occurred on September 23, 1996.

8. I am the legal advisor to the San Diego County

Fire and Arson Task Force. That task force is made up of

local, city, county and federal fire departments working

together to combat arson fires in San Diego County. Rep-

resentatives from ATF are members of this task force.

This task force is similar to the task force in existence in

Salt Lake City, Utah.

9. I have taught courses to the San Diego County

Fire and Arson Task Force. Those separate courses

include instruction on fire scene spoliation of evidence

and trial testimony.

App. 43

10. I am a member of the California Conference of

Arson Investigators. The primary mission of the Califor-

nia Conference of Arson Investigators (CCAI) is the

reduction of arson fires through the establishment of a

professional organization to improve the quality of fire

investigations, reduce incidence of arson, and network

information.

11. I was an instructor on spoliation of evidence at

the California Conference of Arson Investigators Annual

Conference, Fresno, California in 1996. The CCAI recently

reprinted in its March 1988 publication my article from

Fire Engineering (attached hereto as Exhibit “1”) on spolia-

tion of evidence at the fire scene.

12. I have written extensively on fire scene spolia-

tion. Attached are articles recently published: Lynch,

“After the Fire’s Out: Spoliation of Evidence in the Line

Firefighter,” Fire Engineering (January 1998), Vol. 151, No.

1 (attached hereto as Exhibit “2”); Lynch “Watch Out for

Civil Tort Liability From Spoliation of Evidence,” Fire &

Arson Investigator (June 1997) (attached hereto as Exhibit

“3"); Lynch, “Mishandling Fire Claims Can Lose Court

Cases,” Best’s Review (November 1996) (attached hereto as

Exhibit “4”). These three articles have been reprinted

throughout the country and in Canada. I have been

retained as an expert witness in fire cases.

13. The acts by ATF at the scene in Utah show on

the videotape, previously lodged with Judge Keep in

opposition to ATF’s earlier motion for summary judg-

ment, constitute spoliation of evidence at a fire scene.

Evidence is mishandled and not properly collected com-

promising its integrity.

App. 44

14. Basic evidence handling was not followed by

ATF agents during their investigation at the fire scene

which is one basis of the Freedom of Information Act

request. The national standard for fire investigation is

NFPA 921. The edition applicable to the investigation is

the 1995 edition. Chapter 9 details how evidence is to be

handled at a fire scene. Those sections are attached as

Exhibit “5.” Section 9-3.1 covers preservation of the fire

scene.

“The fire scene itself should be considered

evidence because the examination and

analysis of that fire scene is vitally impor-

tant in determining the origin of the fire,

the cause of the fire, and the responsibility

for the fire. The preservation of the fire

scene should begin with arriving fire-fight-

ing units. Improper preservation of the fire

scene will usually result in the contamina-

tion, loss, or unnecessary movement of

other physical evidence within that fire

scene, any one of which may reduce the

evidentiary value of the physical evidence.

The fire investigator should, therefore,

secure the fire scene from unauthorized

intrusions. Access to the fire scene should

be limited to only those persons who need

to be there.”

15. “Fire crews should avoid causing unnecess-

ary damage when using straight stream

hose lines, pulling ceilings, breaking win-

dows, collapsing walls, and performing

overhaul and salvage. Use of power tools

and gasoline- or diesel-powered equipment

should be carefully monitored to guard

against fuel spillage, and refueling of any

App. 45

equipment should be done outside the

building.”

16. As can be seen from section 9-3.1, use of heavy

equipment by ATF constitutes contamination, loss of

unnecessary movement of other physical evidence within

the fire scene reducing the evidentiary value of the physi-

cal evidence. Further, the use of the heavy equipment

caused unnecessary damage to the fire scene.

17. Section 9-3.2 states concerning preservation of

physical evidence:

“The fire investigator will usually locate

specific items of physical evidence within

the fire scene. The movement of such phys-

ical evidence should be avoided whenever

possible until it has been properly docu-

mented.”

18. “Often, it will be necessary for the fire

investigator to preserve and protect the

specific items of physical evidence. Burn

patterns on the floor, for example, may

have to be roped off or covered with a tarp

to prevent from being walked on. Other

physical evidence may have to be covered

with cardboard boxes to protect it. What-

ever type of physical evidence is encoun-

tered, the fire investigator should take

every reasonable precaution to preserve

and protect it.”

19. Based on Section 9-3.2, the use of heavy equip-

ment to move and collect evidence is not a reasonable

precaution to preserve and protect physical evidence.

20. “Section 9-4 covers contamination of physi-

cal evidence. It states, “Contamination of

App. 46

physical evidence can occur from improper

methods of collection, storage, or ship-

ment. Like improper preservation of the

fire scene, any contamination of the physi-

cal evidence may reduce the evidentiary

value of the physical evidence.”

21. Use of heavy equipment to retrieve physical

evidence placed under a chain of custody is an improper

method of collection of physical evidence. That -consti-

tutes contamination of physical evidence reducing any

evidentiary value of that evidence as shown on the video-

tape. Why would the agents of ATF be collecting physical

evidence after it has been dumped on the ground by

heavy equipment?

22. Section 9-5.5 discusses collection of electrical

equipment and components. ATF in this case collected

and preserved electrical components and equipment. Part

of Section 9-5.5 states:

“When practical, it is recommended that

any fixtures housing such equipment and

components be removed without disturb-

ing the components within them. Electrical

distribution panels, for example, should be

removed intact. . . . If the removal of indi-

vidual components becomes necessary, the

fire investigator should be careful not to

operate or manipulate them, and to care- ©

fully document their position and function

in the overall electrical distribution sys-

tem.”

How can ATF justify removing electrical junction boxes

and related physical evidence while dropping them on

App. 47

the ground? That is not consistent with the requirements

of Section 9-5.5.

23. How can AYF justify its handling of key physi-

cal evidence with heavy equipment? Mr. Campbell’s pre-

viously filed declaration concludes the use of heavy

equipment to retrieve physical evidence constitutes spoli-

ation of evidence. I agree. That is the only rational con-

clusion based on NFPA 921.

24. The only reason why ATF is not releasing its

report now is because it will confirm the destruction of

key physical evidence at the fire scene potentially consti-

tuting a tort. ATF is trying to silence any criticism of its

investigative mishaps by withholding the report and pho-

tographs. Query, how can photographs disclose the target

of the criminal investigation? Clearly, there was no arson-

ist found at the fire scene related to this fire. ATF does

not have photographs of its suspects. ATF has photo-

graphs of the fire scene showing how it mishandled it.

After my article in Fire Engineering which used the photo-

graphs of ATF mishandling evidence, Mr. Campbell was

contacted by an ATF agent. That ATF agent criticized the

article and claimed ATF would rethink providing access

to fire scenes in the future based on criticism contained in

that article.

25. Standard fire texts such as Kirk’s Fire Investiga-

tion, 4th Ed., also caution fire investigators from damag-

ing evidence at a fire scene. Attached as Exhibit “6.” That

test states at page 192:

“Preservation of evidence means just that —

preserve it until it reaches the laboratory or

court. Preservation, via proper collection

App. 48

and packaging, means the evidence is not

allowed to change by .. . breaking, spoil-

ing, or being contaminated. . . . With fragile

objects, avoid further breakage by padding

in suitable containers and hand-carry to the

lab.”

No competent fire investigator would even try to argue

that using heavy equipment to retrieve brittle electrical

equipment .4is proper.

26. There is public interest in this case based on the

newspaper article previously lodged about the fire, the

articles I wrote, and previous Congressional hearings

about ATF’s actions at Waco, Texas and Ruby Ridge.

27. The court should see the claim of an ongoing

criminal investigation as a sham to hide ATF’s miscon-

duct and evidence handling from the public. The public,

myself and UNIGARD have a right to know about the

mishandling of key physical evidence by ATF. ATF’s

declarations provide no authorities to contradict NFPA

921 and Kirk's Fire Investigation on correct evidence han-

dling.

28. What is particularly important for the court to

note is J. Rick Miller of the U.S. Bureau of Alcohol,

Tobacco and Firearms served on the Technical Committee

on Fire Investigations, NFPA 921. ATF cannot claim igno-

rance of the national standard on how to preserve evi-

dence at a fire scene when one of its agents served on the

committee promulgating NFPA 921.

29. This court should deny ATF’s motion and order

disclosure because ATF’s acts are to protect its own

image, not an ongoing criminal investigation.

App. 49

30. The editor of Kirk’s Fire Investigations (Fourth

Edition) in his preface states:

“The author’s extensive experience in the

analysis of explosive materials and investi-

gations of explosion scenes as a member of

the U.S. Treasury Department, Bureau of

Alcohol, Tobacco and Firearms is reflected

in the material in those topics in this edi-

tion.”

This is attached as Exhibit “6.”

Further, the acknowledgements section notes the

input of ATF agents Jerry Taylor, Gus Gary and Larry

McCune attached as Exhibit “7.”

I declare under the penalty of perjury under the laws

of the State of California that the foregoing is true and

correct as to the best of my knowledge. Executed this 13th

day of March, 1998 at San Diego, California.

/s/ Peter A. Lynch

PETER A. LYNCH

App. 50

Fire ENGINEERING

TRAINING THE FIRE SERVICE FOR 121 YEARS e

JANUARY 1998

AFTER THE FIRE’S OUT:

SPOLIATION OF EVIDENCE

A-N-D-T-H-E

LINE FIREFIGHTER

BY PETER A. LYNCH

Frequently in suppressing and overhauling a fire, a

firefighter faces the dilemma of what to do with evidence.

Should he save it? Should he move it? Where should it be

stored? Can it be taken apart? Should anyone_be called

before evidence is disturbed? Should the evidence be

discarded? Focusing on how these issues are handled is

of concern because of the dangers presented by the devel-

oping tort of spoliation of evidence, which is civil liability

for damaging or destroying physical evidence at a fire

scene.

$:00000665006600660000600640000000600005000000500000000060006 5008050000500 0080000000000080000000000000000098

@ PETER A. LYNCH is a senior member of the national

law firm of Cozen and O’Connor, P.C. in its San Diego

regional office. The major emphasis of his practice is the

representation of individuals, companies, and insurers

that arise from fire losses to include personal injury,

subrogation, coverage, and defense matters. He has writ-

ten and published more than 20 articles, has lectured

extensively on fire litigation topics, and has been retained

as an expert witness. He is the legal advisor to the San

Diego County-Wide Fire and Arson Task Force.

App. 51

Firefighters are normally immune from a spoilation

claim when evidence is impacted by extinguishing a fire.

They also have civil immunity if the fire department

assigns them to investigate the fire’s cause and origin.

However, if the firefighter has been informed of a poten-

tial civil action and evidence is negligently destroyed

thereafter, potential liability for spoliation of evidence

may arise. Further, damaging evidence after a firefigh-

ter’s duties have been completed can constitute spolia-

tion of evidence. That may subject a normally immune

firefighter to civil tort liability.

OVERVIEW OF SPOLIATION

In California, the recognized elements of negligent

spoliation of evidence are the following:

e Plaintiff possessed a potential defense to a claim

for damages against a defendant.

e Defendant knew or reasonably should have

known of this claim for damages by plaintiff.

e Defendant knew or reasonably should have

known of the existence of the physical evidence and

knew or reasonably should have known that it might

constitute evidence in pending litigation involving plain-

tiff.

e Defendant knew or reasonably should have

known that if he did not act with reasonable care to

preserve the physical evidence, the potential evidence

could be destroyed, damaged, lost, or concealed.

e Defendant failed to act with reasonable care.

App. 52

e Defendant’s failure to act with reasonable care

caused the destruction of, damage to, or loss or conceal-

ment of such evidence.

e As a result, plaintiff sustained damage, namely

plaintiff’s opportunity to prove its claim was interfered

with substantially.!

Consider the following scenario: A firefighter or fire

investigator tells others he will preserve a piece of evi-

dence after a fire has been suppressed. He then fails to

save the evidence or damages it. He is then accused of

mishandling evidence. He may be subject to liability for

negligent or intentional spoliation of evidence.

Claims of governmental immunity for firefighters are

covered by discretionary immunity. For example, under

California Singular Government Code Section 820.2, that

immunity may not apply where the firefighter has ful-

filled all his duties and is performing an intentional or

negligent act outside the scope of his duties. This

assumes his official duties are completed and he later

damages evidence at the scene. [See, Clemente v. State

(1985) 40 Cal.3d 202 (affirmed applying law of the case).]

In Clemente, a police officer’s acts in the course of an

investigation of a traffic accident were held to be outside

the scope of his discretionary immunities, and he was

subject to civil liability. The Appellate Court opinion

affirmed by the California Supreme Court stated as fol-

lows:

1 See BAJI No. 7.96. BAJI No. 7.97 defines the elements of

intentional spoliation of evidence.

App. 53

“What is involved under these allegations is not

the discretion of Officer Lexom in deciding

whether to investigate a traffic accident, pur-

suant to the discretionary authority vested in

him by Vehicle Code Section 2412 . . . but

instead only his negligence in his conduct of the

discretionary investigation. Neither the discre-

tionary immunity of Government Code Section

820.2 nor the more specific discretionary immu-

nity of failure to enforce a statute . . . immunizes

the officer and the state from legal consequences

of this negligence. . . . Government, through its

agents, is held to the same standard of care that

law requires of private citizens in the perfor-

mance of duties imposed or assumed.” [Clemente

v. State (1980) 101 Cal.App.3d 374, 379, affirmed,

Clemente v. State (1985) 40 Cal.3d 202.]

Arguably, this same analysis from Clemente could

apply to firefighters. That may defeat the standard gov-

ernment immunity of a firefighter. Because firefighters ~

face potential liability for intentional or negligent spolia-

tion of evidence, they need to understand these torts to

avoid liability for destruction of evidence at a fire scene. 1

believe a claim of governmental immunity may not pro-

tect a firefighter if the destructive conduct happened after

his normal duties had been concluded. That result fol-

lows because his acts may be outside the scope of his

employment.

SPOLIATION DEFINED

Spoliation of evidence is the destruction of or failure

to save evidence that could have been used by another in

future litigation. Currently, remedies for spoliation of

App. 54

evidence include criminal penalties, adverse inferences,

sanctions, and spoliation tort liability. [Willard v. Caterpil-

lar, Inc. (1995) 40 Cal.App.4th 892, 907.]

PENALTIES FOR SPOLIATION

California places criminal liability on parties who

willfully destroy or conceal any book, paper, or other

matter to be used as evidence at trial - California Penal

Code Section 135; People v. Fields (1980) 105 Cal.App.3d

341. California’s Evidence Code and several California

cases hold that when a party fails to produce evidence

that would normally have been produced, the trier of fact

may infer that the evidence not produced was adverse to

the party. [See, California Evidence Code Section 413 and

913; Breland v. Traylor Engineering & Manufacturing Com-

pany (1942) 52 Cal.App.2d 415, 426.]

California courts can sanction parties if the court

determines a party has spoliated evidence. The court will

first impose monetary sanctions. For more serious viola-

tions, a court may impose evidence sanctions and termi-

nating sanctions. These remedies generally are applied in

civil actions. [Willard v. Caterpillar, Inc. (1995) 40

Cal.App.4th 892, 907.]

CIVIL CASE LAW ON SPOLIATION

In Puritan Insurance Co. v. Superior Court (1985) 171

Cal.App.3d 877, a defense expert misplaced a drive shaft

that would have been the central focus of the plaintiff's

personal injury case. The court directed the defendant to

produce the drive shaft. When the defendant did not

App. 55

comply, the court sanctioned the defendant by refusing to

allow testimony from the defendant’s expert related to

his examination of the missing drive shaft.

In Kuhns v. State of California (1992) 8 Cal.App.4th

982, the defendant in a personal injury case refused to

turn over documents relevant to highway design. The

plaintiff had been severely injured when his vehicle

turned over on the highway. In sanctioning the defendant

the court ordered the defendant to admit that the high-

way was dangerous and the defendant had knowledge of

the danger. The court also went on to preclude a design

immunity defense.

California was the first jurisdiction to officially recog-

nize the tort of spoliation of evidence. In Smith v. Superior

Court (1984) 151 Cal.App.3d 491, the defendant, Smith,

was blinded when a wheel fell off a passing van and hit

the windshield of her car. The van was towed to a Ford

dealer that had recently installed customized wheels on

it. The dealer promised Smith that it would preserve

certain parts of the van so that Smith’s experts could test

them. The dealer subsequently lost or destroyed the parts

Smith had requested be saved. This made it impossible

for Smith’s experts to pinpoint the exact cause of the

wheel’s coming off the van. Smith sued the dealer, claim-

ing intentional spoliation of evidence. The court opined

that the dealer’s loss of parts it had promised to preserve

severely prejudiced Smith’s probability of recovering

damages for her injuries. The trial court sustained the

defendant’s demurrer. The appellate court reversed, hold-

ing that Smith had stated a cause of action for intentional

spoliation of evidence.

Soon after Smith, the California courts expanded

the tort of spoliation of evidence to include negligent

Aop. 56

behavior. In Velasco v. Commercial Bldg. & Maintenance Co.

(1985) 169 Cal.App.3d 874, plaintiffs were injured by an

exploding bottle. They brought the pieces of the bottle to

an attorney. The attorney placed the bottle pieces in a

paper bag and left the bag on his desk overnight. The

attorney’s maintenance company accidentally mistook

the bag for trash and disposed of the bag while cleaning

the attorney’s office. The court held that plaintiffs could

maintain a cause of action for negligent spoliation of.

evidence needed in pending litigation. Id. at 877. Further,

the court made it clear that a cause of action for spolia-

tion exists whether or not the spoliator had any prior

connection to the spoliation victim.

One element in Smith and Velasco was that the party

suing under a spoliation theory asked the party who

spoliated the evidence to preserve the evidence. When a

party is not asked to preserve evidence, a claim for spoli-

ation of evidence may not lie. In Reid v. State Farm Mutual

Auto Insurance Co. (1985) 173 Cal.App.3d 557, Reid was

involved in a one-car accident. Later, insurance investiga-

tors determined that the accident was due to inattentive-

ness on Reid’s part. About one month after the accident,

the insurance company informed Reid that it had sold the

damaged car to a wrecking yard. The car was cut up and

sold for parts about one month later. During this period,

neither Reid nor his attorneys communicated their belief

to the insurance company that the car may have been

defective. They did not ask the insurance company to

preserve the car. Reid did not attempt to find out where

the car was until more than a year after the accident had

occurred. Reid filed suit against the insurance company,

claiming that it had destroyed the car, breaching the

covenant of good faith and fair dealing.

Se ne ee eee

<-o

(Top left) Arson investigators are using heavy equipment to retrieve an electrical outlet

box from a fire scene in Utah. The electrical outlet box was later placed under a chaim of

custody and is in storage now. How do you predict a jury will react to that evidence? (Top

right) Dropping physical evidence on the ground. (Bottom left and bottom right) Collect-

ing an electrical outlet from the dropped material. (Photos by Ronald A. Campbell, fire

investigator.)

App. 58

The Court of Appeals rejected Reid’s claim. It noted

that the insurance company had no duty to preserve the

car for Reid since the car was not considered a possible

cause of the accident when it was sent to the wrecking

yard. Further, Reid never requested that the car be saved.

Quoting Tarasoff v. Regents of University of California (1976)

17 Cal.3d 425, 434, 435, the court noted, “ ‘the most

important of these considerations in establishing duty is

foreseeability. As a general principal, a defendant owes a

duty of care to all persons who are foreseeably endangered

by his conduct, with respect to all risks which make the

conduct unreasonably dangerous.’ ” [Reid at 575. See also

Fern Durham v. Condor Insurance Company (1997) 57

Cal.App.4th 24.]

\

In Maria G. Gomez v. James Acquistance (1996) 50

Cal.App.4th 740, Jose Luis Gomez choked to death at

work when his clothing became tangled in a powered

post hole digger. A few days later, his employer

destroyed the post hole digger. Jose’s widow sued for

negligent and intentional spoliation of evidence, alleging

that destruction of the post hole digger prevented her

from recovering damages in a third-party action against

the manufacturer. The trial court granted the employer’s

motion of summary judgment, finding no spoliation of

evidence and holding California’s workers’ compensation

scheme barred the action against the employer. The Court

of Appeals reversed. The employee admitted it inten-

tionally ordered the post hole digger destroyed. How-

ever, the employer argued that the destruction was to

protect other employees from getting injured while using

that piece of equipment. The court held the widow’s

intentional spoliation of evidence cause of action was

App. 59

adequate because it alleged the defendant destroyed an

object that might constitute evidence in a lawsuit with the

purpose of harming the lawsuit or when harm to the

lawsuit is substantially certain to follow. The court also

rejected the exclusive remedy rule of the workers’ com-

pensation scheme. The court held destruction of the evi-

dence fell outside of the exclusive remedy because the

damage was not an injury within the meaning of the

workers’ compensation statutes. Moreover, the

employee’s widow’s cause of action for negligent spolia-

tion accrued at the earliest, when the post hole digger

was destroyed. At that time, the former employee was no

longer employed and no longer subject to provisions of

the Labor Code.

The court then noted a strong argument in favor of

the tort of spoliation of evidence. The court stated the

widow argued that spoliation is not a normal incident of

employment because the average worker has no reason to

expect his employer will destroy equipment or other

evidence of the cause of an industrial injury. California

has a fundamental public policy to protect the integrity of

civil litigation by encouraging the preservation and dis-

closure of evidence. While occasional injuries from defec-

tive work equipment may be an expected incident of

employment, workers should not be expected to antici-

pate the almost immediate destruction of such equipment

after an industrial accident. The court would not assume

that most employers routinely destroy equipment or

other relevant objects after industrial accidents. It sug-

gested employers could protect themselves against lia-

bility for spoliation by preserving such objects, at least

until they determine whether the affected employee

App. 60

intends to pursue a third party action. Consequently, the

Court of Appeals reversed the summary judgment earlier

granted to the employer.

STATUTE OF LIMITATIONS

The statute of limitations for spoliation claims in

California is two years. The court in Augusta v. United

Services Automobile Association (1993) 13 Cal.App.4th 4,

held that the two-year statute of limitations outlined in

California Code of Civil Procedure Section 339 (1) (Oblig-

ation where liability is not found in a written instrument)

applies to a cause of action for spoliation of evidence.

Third parties may sue for negligent spoliation of evidence

if they can show a special relationship between them-

selves and the party destroyed the evidence. [DeVera v.

Long Beach Transp. Co. (1986) 180 Cal.App.3d 782, 795.]

OTHER JURISDICTIONS

A brief noninclusive listing of other jurisdictions’

discussion of the issue follows: Bondu v. Gurvich

(Fla.Dist.Ct.App. 1984) 473 So.2d 1307; Hazen v. Munici-

pality of Anchorage (Alaska 1986) 718 P.2d 456; La Raia v.

Superior Court (1986) 150 Ariz. 118, 722 P2d 286; Gardner

v. Blackston (1988) 185GA.App.754, 365 S.E.2d 545; Murray

v. Farmers Ins. Co. (1990) 118 Idaho 224, 796 P.2d 101;

Rodgers v. St. Mary’s Hosp. of Decatur (1992) 149 Ill.2d 302,

597 N.E.2d 616, 620; Foster v. Lawrence Memorial Hosp.

(D.Kan. 1992) 809 F.Supp.831, 838. Ohio and New Jersey

recognize a tort of “fraudulent destruction of evidence.”

See Smith v. Howard Johnson Co., Inc. (1993) 67 Ohio St.3d

28; Hirsch v. General Motors Corp. (1993) 266 N.J.Super.22,

. App. 61

628 A.2d 1108; Rodriguez v. Webb (N.H. 1966) 680 A.2d

604.

PRACTICE POINTERS

Protecting life and property are goals of the fire

service. Fires have to be put out, which requires physical

items at the scene to be altered or destroyed. This article

is directed to firefighters who are at the scene after the

fire has been extinguished and overhaul has been com-

pleted. It can include fire investigators of a public agency

after the fire has been determined to be accidental.

Once you understand the tort of spoliation of evi-

dence, you can apply it to avoid such claims against you.

Even though a firefighter is generally immune from spoli-

ating evidence, it may hinder the criminal arson prosecu-

tion by giving a criminal defense attorney an argument to

suggest the prosecutor’s case is not trustworthy because

the evidence was mishandled. Does the O.J. Simpson

rush-the-judgment defense come to mind?

The physical remains of an item that is the suspected

cause of an arson fire should be kept for later use at trial.

This might include evidence of accelerants, matches, or

other devices used to set the fire.

Where physical evidence is to be removed from the

scene of a fire for further examination by an expert, first

photograph the physical evidence in place before it is

disturbed; again while it is being removed; and, finally,

after its removal. Prepare a detailed log indicating the

date, time, and direction of each photograph, as well as

the identity of the photographer. This information may be

App. 62

critical in determining the claim of custody of the physi-

cal evidence and in demonstrating that its removal did

not disturb or alter the evidence in any significant way.

The physical evidence may have been seriously dam-

aged in the fire. Take great care to ensure that all pieces of

the item suspected of causing the accident are retained.

An important component later found missing may result

in a failure in proof and give rise to other plausible

arguments as to negligent causation of the fire.

Do not limit your preservation of physical evidence

to the suspected cause of the fire. Photograph and retain

if possible also other objects located in the same general

area that could have caused the fire, such as appliances,

electrical line cords, wall outlets, and other potential

sources of ignition. Do not discard such items simply

because they have been ruled out as a potential cause of

the arson fire. It is important that they be properly

retained to corroborate the accuracy of the cause and

origin conclusion and to document the thoroughness of

the examination.

It is not unusual to find that a particular piece of

equipment suspected of causing the fire has almost been

totally destroyed by the arson fire itself. If this is the case,

it is important for you to check to see whether the prem-

ises contain additional identical items. In such circum-

stances, retain these items to allow comparisons between

the severely damaged evidence and its twin.

If you have taken an item of physical evidence into

custody yourself, always alert all known parties in writ-

ing that you have taken the evidence and stored it and

that you will make it available for a nondestructive,

App. 63

visual inspection between certain fixed dates. Say in your

letter that your scientific expert will then propose a

method for testing and analysis that can be circulated for

comment and approval among other experts before any

destructive analysis or testing is performed.

Sending such a letter should prevent claims that you

have destroyed essential evidence before the parties have

had a proper chance to inspect and analyze it.

CONCLUSION

Justice requires that evidence be handled properly.

The results of criminal and civil cases are altered when

evidence is mishandled or destroyed. A trial is a search

for the truth, not a fanciful recreation of one party's

theory of how a fire progressed. Juries decide cases based

on the evidence presented - not speculation. If evidence

is altered, or destroyed, the jury’s decision is necessarily

detrimentally impacted.

Firefighters are sworn to uphold federal, state, and

local laws. That includes proper handling of evidence.

Our justice system depends on the proper preservation of

evidence so that juries can reach correct results.

App. 64

Peter A. Lynch, Esq.

Bar No. 123603

COZEN AND O’CONNOR

501 West Broadway, Suite 1610

San Diego, California 92101-3536

(619) 234-1700

Attorney for Plaintiff

UNIGARD INSURANCE COMPANY

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

(Hon. Judith N.

Keep)

UNIGARD INSURANCE ) CASE NO. 97-CV-1126K

COMPANY, ) (AJB)

Plaintiff, DECLARATION OF

; ) RONALD A. CAMPBELL

IN OPPOSITION TO

DEPARTMENT OF THE ) MOTION TO DISMISS OR

TREASURY, BUREAU. ) FOR SUMMARY

OF ALCOHOL, JUDGMENT

TOBACCO AND

) DATE: November 17,

FIREARMS, ir

Defendant. )

) TIME: 10:30 a.m.

)

) CTRM: 16 (5th FL.)

)

I, RONALD A. CAMPBELL, do hereby depose and

Say: 5

1. Iam a Certified Fire Investigator. | was with the

Pendleton Fire Department for 27 years. I retired and

have operated a fire investigation business for the past

Se ee eee me Oey Po) on | eee: Oe eee ery err

App. 65

seven (7) years. I have taught fire cause classes at col-

leges.

2. I received the President’s Award for Outstanding

Public Service in 1988. | was named the Oregon Fire

Investigator of the Year in 1989. I was given an award of

Recognition in 1990 by the International Arson Investiga-

tors Association.

3. I was hired by UNIGARD INSURANCE COM-

PANY (“UNIGARD”) to investigate the fire loss at 5200

South Highland Drive, Salt Lake City, Utah 84101. That

fire happened in the early morning hours of September

23, 1996. I arrived at the scene on that day.

4. Attached to the Notice of Lodgement is a video-

tape I made of the BUREAU OF ALCOHOL, TOBACCO &

FIREARMS’ (“ATF”) conduct at the site. ATF directed

UNIGARD to bring heavy equipment to the site. ATF’s

use of heavy equipment destroyed key physical evidence

to include fire patterns on the structure. ATF’s use of

heavy equipment to retrieve physical evidence later put

under a chain of custody cannot be justified. Said equip-

ment more likely than not suffered damage as a result of

the use of that heavy equipment. It likely constitutes a

break in the chain of custody and potentially spoliated

evidence.

5. I was precluded by ATF from properly retrieving

that evidence. In my opinion, the use of heavy equipment

was not warranted and likely damaged that physical

evidence at the scene.

ee ate Tt, ke ee

+ Sante lint pete aa Dh

App. 66

6. I do not believe there is any ongoing investiga-

tion into the matter based on ATF’s closure of its file

without a prosecution being initiated.

7. Ihave not been advised of any newly discovered

evidence about this fire. Salt Lake City Fire Department

and ATF know I investigated the fire for UNIGARD. I

have not been contacted by them concerning any newly

discovered evidence.

8. Based on my thirty-four years of experience in

investigating fires, because ATF closed its file, there is no

realistic probability that any enforcement proceeding at

the state or local level will ever go forward.

I declare under the penalty of perjury that the forego-

ing is true and correct to the best of my knowledge.

Executed this 19th day of September, 1979.

/s/ Ronald A. Campbell

RONALD A. CAMPBELL

Certified Fire Investigator

Great Pacific Fire

Investigations