Petition for Writ of Certiorari — Lahr v. National Transportation Safety Board
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Supreme Court, U.S.
FILED
sone 991283 APR 21-2010
OFFICE OF THE CLERK
Su The
Supreme Court of the Gnited States
H. RAY LAHR,
Petitioner,
V.
NATIONAL TRANSPORTATION
SAFETY BOARD, ET AL.,
Respondents.
On Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The Ninth Circuit
PETITION FORA WRIT OF CERTIORARI
JOHN H. CLARKE
Counsel of Record
1629 K Street, NW
Suite 300
Washington, DC 20006
(202) 332-3030
johnhclarke@earthlink.net
Attorney for Petitioner
COCKLE LAW BRIEF PRINTING CO (800) 225 6964
OR CALL COLLECT (402) 342-2831
QUESTIONS PRESENTED
:.
Where the government does not dispute that it
misrepresented eyewitness accounts to a_ tragedy,
does a prohibition on disclosure of the identities of
the witnesses on privacy grounds result in a blanket
rule of non-disclosure not contemplated under the
Freedom of Information Act?
2.
Is the district court’s inquiry into the deliberative
process privilege under the Freedom of Information
Act limited to adjudication of whether the privilege
is properly asserted, and does this limited review
erroneously transform a qualified privilege into an
absolute one?
il
RULE 14.1(b) STATEMENT
A list of all parties to the proceeding in the court
whose judgment is the subject of the petition is:
Petitioner: H. Ray Lahr.
Respondents: National Transportation Safety
Board, Central Intelligence Agency, National
Security Agency.
11]
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED .....0...cssccscesseesesccccsess i
RULE 14.1(b) STATEMENT ...... ...0:césseccessascustesss il
TABLE OF CIT re 6 snssncscssassusvissesneeeene nee lil
PETITION FOR A WRIT OF CERTIORARI ....... 1
CPP EIT Re EA sos vsscsssacivcsssintontceecess 1
Fe iss die eigenen cae 2
STATUTORY PROVISIONS INVOLVED............ 2
STATEMENT OF THE CASE...........c0ccc00sc0ee0es 3
A. The Flight 800 Tragedy ...................0...0..... 3
B. The District Court Opinion ....................-:. 6
C. The Court of Appeals Decision .................. 12
REASONS FOR GRANTING THE PETITION.... 14
A. Where it is undisputed that the govern-
ment misrepresented eyewitness _ ac-
counts of a crime, prohibiting disclosure
of the identities of these witnesses
results in a blanket rule of non-disclosure
not contemplated under the FOTA............ 14
B. The district court’s inquiry into the de-
liberative process privilege under the
FOIA should not be limited to adjudica-
tion of whether the privilege is properly
asserted, as such an analysis erroneously
transforms the qualified privilege into an
GDUGTORE GU iiss 28
COI LA ities 38
1V
TABLE OF CONTENTS - Continued
Page
APPENDIX
APPENDIX A (Opinion of the U.S. Court of
Appeals for the Ninth Circuit, filed June 22,
PI a oid carta var ceckucasisntsccia sascuncnceastineusecgraseaated App. 1
APPENDIX B (Order of the U.S. District Court
for the Central District of California, filed
I OE ehicek vicki thiasnids ne adeno App. 52
APPENDIX C (Order of the U.S. District Court
for the Central District of California, filed
CE oN kien serves nse App. 126
APPENDIX D (Order of the U.S. District Court
for the Central District of California, filed
Fe NEP ois hcek dens deanicatescorstaasuindiscsnceia App. 185
APPENDIX E (Order denying Petition For
Rehearing en banc U.S. Court of Appeals for
the Ninth Circuit, filed Jan. 21, 2010)........ App. 199
APPENDIX F (Lahr Excerpts of Record U.S.
Court of Appeals for the Ninth Circuit)
Graphic reprinted from March 10, 1997 Press
Enterprise Newspaper article, New Data
Show Missile May Have Nailed TWA 800,
Debris Pattern Provides Key to Mystery ...... App. 202
November 17, 1997 CIA Animation, “What
Did The Eyewitnesses See?” four screen
TABLE OF CONTENTS — Continued
Page
(i. |: ree Paris aviincncavedtet comeatevateake racist slonsunren App. 205
sehen cnrekssvcunases Aaceetss ekia ten eneeas aaiuaa toa App. 206
Drees nacus sun cgyiand aise eke tepeede cai labaliask en dairuen Gn App. 207
Vi
TABLE OF AUTHORITIES
Page
CASES
Department of Air Force v. Rose, 425 U.S. 352
Sieh es ae a nO ee ae nae 22, 26, 32, 33, 34
Forest Service Employees for Environmental
Ethics v. U.S. Forest Service, 524 F.3d 1021
SE 6. seas ciipesinivanchensnensnecndsiseaascens 13. 21, 22
General Services Administration v. Benson, 415
Be Pe EE GE, BUD vecisvcicascedssncnesescssxscronscnaiconts 13
Hickman v. Taylor, 329 U.S. 495 (1947).................06 32
In re Sealed Case, 121 F.3d 729 (D.C. Cir. 1997)....... 36
John Doe Agency v. John Doe Corp., 493 U.S.
146 (1989), reh’g denied, 493 U.S. 1064
a aaa cass sncabadandaxbibeuedeanesddsaveessys 32
John Hancock Mut. Ins. Co. v. Harris Trust &
Savings Bank, 1148S. Ct. 517 (1993)..................008 33
Lion Raisins Inc. v. United States Dep’t of
Agriculture, 354 F.3d 1072 (9th Cir. 2004)............. 33
Maricopa Audubon Soc’y v. U.S. Forest Serv.,
ge Ee 2 te a Ly Sr 18
Nat'l Archives & Records Admin. v. Favish, 541
ose ay dv bcansanacacstivesiues 9,10
NLRB v. Robbins Tire & Rubber Co., 437 U.S.
oo aes, caapenistacsonsinesieaniaks 25, 33
NLRB v. Sears, 421 U.S. 132 (1975).............. 28, 29, 36
Painting Indus. of Haw. Mkt. Recovery Fund v.
U.S. Dep’t of Air Force, 26 F.3d 1479 (9th Cir.
1994)
Vil
TABLE OF AUTHORITIES — Continued
Page
Stern v. F'B.I., 737 F.2d 84 (D.C. Cir. 1984)............... 25
United States Dep't of Defense v. Fed. Labor Rela-
tions Auth., 510 U.S. 487 (1994)....... 9, 23, 24, 26, 30
United States Dep’t of Justice v. Reporters Comm.
for Freedom of the Press, 489 U.S. 775............. 30, 33
United States Dep’t of State v. Ray, 502 U.S. 164
PARIS iv cnensci ony cavdaueas ss ccnarsnrceapennadisinstcaesyuaieiaatss 24, 25
United States v. Weber Aircraft Corp., 465 U.S.
PEE GI as ache sindastnress en catist nase acetic eadas ori 28
STATUTES
Ree IE oon coos oau i cacenkzautsnenettedsiainepseeataseieuemeseees 2
Be ees Oe iii icc pesa isn astereesisaxsencntirseacunsines 7
BU As. © GOO AMG), BOD icccnccvciicncoscessessnsseonncens 32
re eG aioe sash tech eciarncscedisiicscmotesi 23
Fer We Rigi nht va Ha cairaactasconacs abanececdioveenaasoe 28
Be ee hater eencaseoy ackncadssabepevencisacsaeeaaurans 2
ay ed esas ns ncienncensecisks sasiscunaxqresaveasngsd 16
Oe Beds FB vias vas icacssneneddhaasaeicsstincetnionns 16
FEDERAL REGULATIONS
es a I ec ions stn can eidas cbereppecsnreesteeannceusadcanen 16
RULES
ge TR By Ee eee ame Ama Aaa een ee i)
V1ll
TABLE OF AUTHORITIES — Continued
Page
LEGAL ENCYCLOPEDIAS
McCormick Evid. § 108 (6th Ed..)..................scccssceceees 31
Wright and Graham, Fed. Prac. & Pro......................31
LEGISLATIVE HISTORY
Freedom of Information Act Amendments
Sourcebook, House Government Operations
Committee and Senate Judiciary Committee,
Ge GIN, BONE IN BF vociccccecitnscnccesscessssccssones. 31
Es MU acon ys itate dans cinkec dav Ginixscrtpavicinsncens 29
PERIODICALS
Wash. Times, We Saw TWA Flight 800 Shot
Down By Missiles And We Won't Be Silenced
Any Longer, Advertisement, Aug. 15, 2000............ 18
Press Enterprise Newspaper, New Data Show
Missile May Have Nailed TWA 800, Debris
Pattern Provides Key to Mystery, March 10,
BOE oo Tera ncaa cd cae ihans exdacshcieaendiansiniveiieickdiswicaewaes 4,18
Corporate Legal Times, The Chosen One, Oct.
RN re oral ca os ceed sodevaseovaausasiarvtes 18
EXECUTIVE BRANCH MEMORANDA
Memorandum for the Heads of Executive De-
partments and Agencies, Pres. Obama, Jan.
I eres et ek egies ad ui rabid dicdesdkaetncane 31
LX
TABLE OF AUTHORITIES — Continued
Freedom of Information Act Memorandum,
Attorney General Holder, March 19, 2009........
Books
First Strike, J. Cashill & J. Sanders, WND
Books 2003, Chap. 9, The Big Lie, at 155.....
OTHER REFERENCE
Airman’s Information Manual.......
ClA-produced video entitled, What Did The
Eyewitnesses See .......0.ccc0cceeee eyuiiuieketsenee
Page
ree 32
£0
~~
15, 16
PETITION FOR A WRIT OF CERTIORARI
H. Ray Lahr respectfully petitions for a writ of
certiorari to review the opinion and judgment of the
U.S. Court of Appeals for the Ninth Circuit.
—
OPINIONS BELOW
The panel opinion of the U.S. Court of Appeals
for the Ninth Circuit, dated June 22, 2009, is offi
cially reported at 569 F.3d 964 (9th Cir. 2009), and is
reproduced in Appendix A at 1-51.
The opinion and order of the U.S. District Court
for the Central District of California, dated July 31,
2006, is officially reported at 453 F. Supp. 2d 153
(C.D. CA 2006) and is reproduced in Appendix B at
o2-125.
The subsequent opinion and order of the U.S.
District Court for the Central District of California,
dated October 4, 2006, is officially reported at 2006
WL 2854314 (C.D. Cal. Oct 4, 2006), and is repro-
duced in Appendix C at 126-184.
The fees opinion and order of the U.S. District
Court for the Central District of California, dated
March 19, 2007, is not publicly reported, and is repro-
duced in Appendix D at 185-198.
The opinion of the U.S. Court of Appeals for the
Ninth Circuit, denying en banc review, dated January
21, 2010, is not publicly reported, and is reproduced
in Appendix FE at 199-201.
JURISDICTION
The judgment of the U.S. Court of Appeals for the
Ninth Circuit was entered on August 8, 2009. A time-
ly petition for rehearing en banc was filed on July 20,
2009, and was denied on January 2], 2010. This
Court has jurisdiction under 28 U.S.C. § 1254(1).
*
STATUTORY PROVISIONS INVOLVED
The Freedom of Information Act, 5 U.S.C. § 552
provides, in relevant part:
(a) Each agency shall make available to the
public information as follows:
4
(3) A) *** [|Ejach agency, upon any request
for records which (1) reasonably describes
such records and (ii) is made in accordance
with published rules stating the time, place,
fees Gf any), and procedures to be followed,
shall make the records promptly available to
any person.
(b) This section does not apply to matters
that are
3
(5) inter-agency or intra-agency memoran-
dums or letters which would not be available
by law to a party other than an agency in
litigation with the agency.
Bo * 2k
(6) personnel and medical files and similar
files the disclosure of which would constitute
a clearly unwarranted invasion of personal
privacy;
(7) records or information compiled for law
enforcement purposes, but only to the extent
that the production of such law enforcement
records or information ...(C) could reason-
ably be expected to constitute an unwar-
ranted invasion of personal privacy
+
STATEMENT OF THE CASE
A. The Flight 800 Tragedy
On July 17, 1996, the military issued a warning
that it was dangerous for civilian aircraft to fly below
10,000 feet in Military Operating Zone’ Whisky 105
(“W-105”), whose western edge was about 15 miles off
Long Island’s coast. At 8:00 p.m., the military was
' Defined in Airman’s Information Manual § 3:43: “{Warn-
ing zones] denote the existence of unusual, often invisible,
hazards to aircraft, such as artillery firing, aerial gunnery, or
guided missiles.”
4
conducting classified military maneuvers.’ The dis-
trict court:
The genesis of this suit lies in the tragic
crash of Trans World Airline (“TWA”) Flight
800 (“Flight 800”). On July 17, 1996, Flight
800 departed from John F. Kennedy Inter-
national Airport in New York City, en route
to Charles de Gaulle International Airport in
Paris, France. The aircraft crashed into the
Atlantic Ocean twelve minutes after depar-
ture. There were no survivors of the accident
and the aircraft, a Boeing 747-131, was
destroyed.
App. B at 55.
The tragedy unfolded at sunset, on a relatively
cool, sunny day, ten miles off the coast of Long Is-
land’s south shore, a popular, affluent, summer re-
sort. Without a word of warning from the cockpit, the
plane exploded in view of as many as a thousand
people up and down the coast — vacationers, surfers,
fishermen, beach walkers, helicopter pilots, and other
airline pilots. The multiple explosions were seen from
“over 40 miles away.” The plane fell from the sky in
flames, the cockpit broken off from the fuselage,
* See graphic reprinted from March 10, 1997 Press Enter-
prise Newspaper article, New Data Show Missile May Have
Nailed TWA 800, Debris Pattern Provides Key to Mystery App. F
at 202.
* Quoting Nov. 17, 1997 CIA animation at 10:40, discussed
infra
3)
tragically killing 230 people, thirty-eight of whom
were under the age of 18. Almost seven hundred peo-
ple would provide the FBI with formal witness
statements as to what they had seen of the disaster.’
Seventeen months into the NTSB’s four-year
probe, on November 17, 1997, the three major net-
works broadcast excerpts of the ClA-produced video
entitled, What Did The Eyewitnesses See,’ and CNN
broadcast the 14-minute video in its entirety.”
The video climaxed with an animation purport-
ing to show what the eyewitnesses did see. As pre-
sented in the CIA video, the nose of the aircraft blew
off from an internal explosion, and then the nose-Jess
747 “pitched up abruptly and climbed several thou-
sand feet from its last recorded altitude of about
13,800 feet to a maximum altitude of about 17,000
feet.” Trailing flames, this vertically zooming nose-
less aircraft allegedly deceived the eyewilnesses into
thinking they had seen a missile. Neither the govern-
ment nor the media ever showed the animation
again.
“ The record in the case includes 673 FBI 302 eyewitness
interview reports.
* Video lodged in Cress-Appellant H. Ray Lahr’s Excerpts of
Record (“Lahr’s Excerpts”).
° See App. F at 203-06, four screen shots of CLA animation:
(1) “What Did The Eyewitnesses See;” (2) “The Eyewitnesses Did
Not See A Missile;” (3) “Not A Missile;” and (4) Quoting narrator,
“Just after the aircraft exploded, it pitched up abruptly and
climbed several thousand feet from its last recorded altitude of
about 13,800 feet to a maximum altitude of about 17,000 feet.”
6
Like tens of millions of other Americans, “[Ray]
Lahr, a former Navy pilot and retired United Air-
lines Captain who has served as ALPA’s Southern
California safety representative for over fifteen years”
(App. B at 67), saw the now notorious CIA animation,
depicting the transformation of a nose-less jumbo jet
into a soaring rocket. This animation instantly dis-
credited all eyewitness testimony and ended any real
investigation into the plane’s destruction, and trans-
formed the Flight 800 tragedy into the most contro-
versial disaster in aviation history. It remains so
today.
B. The District Court Opinion
The district court wrote that Flight 800 raises
“much-debated questions” (App. B at 53) and that
“the crash of Flight 800 and the government’s inves-
tigation and findings are matters of great public in-
terest.” App. B at 102. The court elaborated in its fee
order:
Plaintiff provides ample evidence of the pub-
lic’s interest in the information obtained in
this case. According to Plaintiff, TWA Flight
800 has already been the subject of nine
books and over 2,000 newspaper articles. A
Google search yields over 147,000 webpage
hits. Plaintiff adds that well-qualified ex-
perts will analyze the disclosures and several
will publish reports of their findings on the
websites of Flight 800 Independent Re-
searcher’s Organization (at flight800.org)
7
and the Association of Retired Airline Pro-
fessionals (al www.twa800.com). At least two
magazines have already published articles
about this Court’s ruling.
App. D at 189.
Lahr’s Freedom of Information Act (“FOIA”) re-
quest sought disclosure of “all records upon which all
publicly released aircraft flight path climb conclu-
sions are based, including, but not limited to, the
underlying data and basis of all written reports and
all video-animation-depictions.” App. A at 8. “Lahr
filed suit against the NTSB [and] [t]hereafter he
added as defendants the CIA and National Security
Agency (“NSA”)... ”'’ App. B at 67.
The Freedom of Information Act gives district
courts exclusive jurisdiction to “enjoin the agency
from withholding agency records and to order the
production of any agency records improperly withheld
from the complainant.” 5 U.S.C. § 552(a)(4)(B). In two
” Although the CIA is the principal defendant, it was not
initially named because Lahr in good faith relied on that Agen-
cy’s denial of its possession of responsive records. See Fee Order,
App. D at 191:
In its January 26, 2001 FOIA response letter, the CIA
wrote, “[wJe have researched this matter, and have
learned that the pertinent data, and resulting conclu-
sions, were provided by the National Transportation
Board (NTSB). CIA simply incorporated the NTSB
conclusions into our videotape.” .. . (Mot., 7:9-12) (cit-
ing June 16, 2004 Lahr Affidavit, Ex. 16). That was
not correct.
8
“thorough opinions” (App. A at 9), issued in August
and October of 2006, the district court granted in part
and denied in part the three government partial
summary motions, holding, inter alia:
¢ The FOIA’s balancing test is inapplicable
to Exemption 5, and thus, some of the
information that had been withheld un-
der the deliberative process privilege
need not be disclosed
¢ Under the FOIA’s balancing test, the pri-
vacy protections afforded by Exemption
7(C) do not shield the names of eyewit-
nesses from disclosure
s0th holdings involve solely questions of statutory
interpretation.
The district court resolved the first by holding,
inter alia, that its analysis of the deliberative process
privilege withholdings under Exemption 5 is limited
to adjudication of whether the privilege is properly
asserted. Once the court concluded that they did fall
within the privilege, and thus fell under Exemption 5,
the district court had no discretion to order dis
closure. “[T]his Plaintiff-proposed balancing test is in-
applicable to Exemption 5... There, the only test the
Court may apply is whether the record is both pre-
decisional and delrberative.” App. Bn. 33 at 86.
9
As the government filed no transverse affidavits’
on the issue of government impropriety, there was no
question of material fact® to be decided on the court’s
resolution of the dispute over eyewitness names un-
der Exemption 7(C)’s balancing test. “Defendants did
not file any response to that statement [of genuine
issues], so on this motion, at least, Plaintiff’s asser-
tions have not been repudiated.” App. B at 60.
To determine whether a record is properly with-
held, district courts must balance the privacy interest
protected by the exemptions against the public inter-
est in government openness that would be served by
disclosure. See Nat'l Archives & Records Admin. v.
Favish, 541 U.S. 157, 171 (2004); United States Dep't
of Defense v. Fed. Labor Relations Auth., 510 U.S.
487, 494-95 (1994).
* Lahr filed affidavits from 29 expert and fact witnesses.
The experts include former NTSB member, Dr. Vernon Gross,
and retired Rear Adm. Mark Hill, as well as two aerodynami
cists and six air-crash investigators, three of whom were parties
inside the TWA Flight 800 probe. Seven of Lahr’s affiants are
eyewitnesses, four of whom saw the disaster from the air. All re-
fute the government’s zoom-climb hypothesis, including two eye-
witnesses who are featured in the CIA’s zoom-climb animation.
* “When the moving party meets its burden, the adverse
party may not rest upon the mere allegations or denials of the
adverse party’s pleadings, but the adverse party’s response, by
affidavits or as otherwise provided in this rule, must set forth
specific facts showing that there is a genuine issue for trial.’ Fed.
R. Civ. P. 56(e).” App. B at 70.
10
“[A]ls a general rule, when documents are within
FOIA’s disclosure provisions, citizens should not be
required to explain why they seek the information.”
Favish, id. at 72. But where the government’s basis
for withholding the contested records is Exemption
7(C), “the usual rule that the citizen need not offer a
reason for requesting the information is inapplicable.”
Instead, the requester must “establish a sufficient
reason for the disclosure.” Jd.
The district court wrote that “[fJor the purpose
of determining whether Exemption 7(C) (and other
FOIA provisions) are applicable, and only for that
purpose, the Court finds that, taken together, this
evidence is sufficient to permit Plaintiff to proceed
based on his claim that the government acted im-
properly in its investigation of Flight 800, or at least
performed in a grossly negligent fashion. Accordingly,
the public interest in ferreting out the truth would be
compelling indeed.” App. B at 60-67 (emphasis add-
ed). The district court’s analysis under the heading
Plaintiff's allegations of impropriety:
According to Plaintiff then, the government
withheld evidence from the Flight 800 probe.
The government altered evidence during the
investigation. Evidence was removed from
the reconstruction hangar. The government
misrepresented radar data, which does not
correspond to the “zoom-climb” conclusion.
Radar data and flight recorder data are
missing. It appears that underwater video-
tapes of the debris from the plane have been
altered.
11
The government concealed the existence of
missile debris field and debris recovery loca-
tions. At its first public hearing, the NTSB
did not permit eyewitness testimony. Many
eyewitnesses vehemently disagree with the
conclusions the CIA expressed in the video
animation. The CIA falsely reported that
only twenty-one eyewitnesses saw anything
prior to the beginning of the fuselage’s de-
scent into the water. The FBI took over much
of the investigation from the NTSB, which
should have been in charge, and the CIA
never shared its data and calculations of the
trajectory study with others for peer review,
which would have been appropriate.
Plaintiff also submits evidence that the
government's conclusion that there was a
center-wing fuel tank explosion and the gov-
ernment’s “zoom-climb” theory were physi-
cally impossible under the circumstances.
For example, evidence suggested there was
no spark in the center-wing fuel tank.
Once an explosion occurred, engine thrust
would have been cut off with the loss of the
nose of the plane. Furthermore, the aviation
fuel used in Flight 800 is incapable of an
internal fire or explosion. The zoom-climb
theory is impossible because at least one
wing separated early in the crash sequence.
Additionally, a steeper climb would likely
result in a reduction in ground speed, which
contradicts radar evidence. In fact, Plaintiff’s
evidence suggests the “zoom-climb” theory is
aerodynamically impossible.
12
Finally, Plaintiff also claims that there were
“military assets” conducting classified ma-
neuvers in the area at the time of the crash,
and several vessels in the area remain
unaccounted for.
App. B at 60-67 (footnotes omitted).
C. The Court of Appeals Decision
The government appealed only the district court’s
holding that Exemption 7(C)’s equitable balancing
test mandates disclosure of the eyewitnesses’ names.
Lahr appealed the district court’s holding that
the FOIA’s balancing test is inapplicable to resolu-
tions of disputes under Exemption 5’s deliberative
process privilege.
Regarding the district court’s order to provide
complete copies of ten documents, from which the
names of 233 eyewitnesses and one supervisory FBI
agent had been redacted, the panel wrote that it was
“compelled by precedent — especially by a recent case
of this court, Forest Service Employees for Environ-
mental Ethics v. U.S. Forest Service, 524 F.3d 1021 (9th
Cir. 2008) ... to reverse this holding.” App. A at 16
The panel wrote that, under FOIA Exemption 7(C)’s
balancing test, the public could’ benefit from
disclosure only if Lahr contacted the eyewitnesses
“directly,” and any contact would infringe on the
privacy interests sought to be protected hy Exemption
“404; ik
13
The panel ruled against Lahr and affirmed the
district court’s Exemption 5 holding that “any discre-
tion retained by the district court was lmited to
determining whether the withheld documents fell
within the scope of the claimed privilege.” App. A
n. 15 at 32. The pane! wrote:
Relying on General Services Administration
v. Benson, 415 F.2d 878, 880 (9th Cir. 1969),
Lahr contends that traditional equity princi-
ples apply to determine whether withholding
is warranted under Exemption 5. See Ben-
son, 415 F.2d at 880 (holding that courts
must weigh “the effects of disclosure and
nondisclosure, according to traditional equity
principles”). We have subsequently explained
that the FOIA context is different, and that
Benson
merely recognized that where documents
normally privileged in the civil discovery
context are involved, courts may employ
in exemption 5 cases the same equitable
principles that they may use to fix the
scope of discovery in civil litigation
against an agency. Except in this limited
sense, however, courts do not possess
‘equitable discretion’ to deny FOIA re-
quests.
Maricopa Audubon Soc’y v. U.S. Forest Serv.,
108 F.3d 1082, 1088 n.4 (9th Cir. 1997).
Id.
14
REASONS FOR GRANTING THE PETITION
A. Where it is undisputed that the govern-
ment misrepresented eyewitness accounts
of a crime, prohibiting disclosure of the
identities of these witnesses results in a
blanket rule of non-disclosure not contem-
plated under the FOIA
In this case, the government did not dispute that
it falsified its account of the disaster. In reality, it
could not. Its zoom-climb hypothesis violates several
immutable laws of physics,’ in addition to being con-
tradicted by all forensic evidence,’ virtually all of which
the government either deleted, altered, removed,
hid, or misrepresented. Government misconduct was
1¢
“|E|jngine thrust would have been cut off with the loss of
the nose of the plane.” App. B at 65. “[TJhe aviation fuel used in
Flight 800 is incapable of an internal fire or explosion.” Jd. The
aircraft did not slow and thus could not have climbed. Jd. at 64
n. 18. “Evidence suggests the ‘zoom-climb’ theory is aerodynam
ically impossible.” Jd. at 66 n. 25. “See Hill Aff., at J 4 (Bates 51)
(airplane at more than twenty degrees inclination will stall be
cause it will no longer produce lift); Pence A/ff., at 4 8 (Bates 259)
(same); Lahr Aff., at 4 62 (Bates 275) (plane would have stalled
about one and a half seconds after nose separation); see gener
ally Third Lahr Aff. (under physical characteristics concluded by
government, aircraft could never have reached impact point).”
ld
' The break-up sequence, the radar data, the photographic
evidence, the underwater imavery, the explosive residue, the flight
data recorder, the cockpit voice recorder, the climb analysis data
L5
. ’ . 12
so pervasive that non-governmental investigators
smuggled evidence out of the probe to give to the
. 13
news media.
The undisputed impossibility of the government’s
zoom-climb hypothesis begs the question posed by
the CIA in its animation, What Did The Eyewitnesses
See? Lahr wants to ask these witnesses. ‘ihe CIA
did not. Its analysts relied exclusively on FBI
302 interview reports, having interviewed no wit-
nesses. The NTSB interviewed one eyewitness,”
* NTSB investigations are conducted under the Party Process,
under which non-governmental groups, or parties, possessing
expertise in particular disciplines, are included in the process.
Lahr’s Excerpts, Holtsclaw Aff.: “[In) 1996, I provided to
Captain Richard Russell the Radar tape... recorded at the New
York Terminal Radar ... authentic.... The tape shows a
primary target at the speed of approximately 1200 knots
converging with TWA-800 ... It also shows a U.S. Navy P-3
pass over 'TWA-800 seconds after the missile has hit TWA-800.”
See also Sanders Aff.: Evidence smuggled out in 1996 by
TWA Captain Terrell Stacey to investigative reporter James
Sanders, including seat padding of reddish residue sample
of missile exhaust (that 60 Minutes freely surrendered to the
FBI)
i4
The only witness ever interviewed by the NTSB was
Kastwind pilot Captain David MacLaine. He was staring di
rectly at Flight 800 when it exploded, piloting an aircraft at
about 17,000 feet. The transcript of his real-time Air Traffic
Control. “Ah we just saw an explosion up ahead of us here about
sixteen thousand feet or something like that. It just went down
in the water.” (Lahr’s Excerpts ATC Transcript MacLaine.)
MacLaine’s next day Report also reported that the aircraft fell
downwards. When the NTSB interviewed MacLaine in March of
1999 — over two years after both the CIA and NTSB announced
(Continued on following page)
16
notwithstanding that its enabling statute mandates
that it do so.”
The FBI provided the CIA 233 interview reports.
‘The CIA used these reports to generate its report said
to analyze what the witnesses saw, which, in turn,
formed the basis of the CIA video, What Did The Eye-
witnesses See? The CIA released its written analysis,
but redacted the names appearing adjacent to the
witnesses’ accounts.
Here, evidence of the government’s misrepresent-
ing, then concealing eyewitness accounts from public
view pervades the investigative history of the govern-
ment’s four-year probe, as the district court observed.
“See Hill Aff., at 4 7, Exh. 1, p. 2 (Bates 46) (no
their zoom-climb conclusions — he was repeatedly clear that all
the debris fel! downwards out of Flight 800, not upwards. (Inter-
view ‘Transcript MacLaine Id.) Had the aircraft climbed, it would
have done so through MacLaine’s airspace
See, e.g., Affidavit of former NTSB member Vernon Gross
(Lahr’s Excerpts): “[B]y a mandate of the Congress, there is one
body, the National Transportation Safety Board, that is entirely
charged with the investigation of any transportation accident
Any time you take away from the NTSB, which, by congres-
sional charter, must be in charge, and have the FBI say that
they [NTSB] will not investigate or interrogate any witnesses
whatsoever, that immediately raises an issue in my mind about
the politics of it.” See also 49 U.S.C. § 1131(a)(2) (same); 49
C.FR. Part 831, Accident/Incident Investigation Procedures;
831.5 Priority of Board Investigations (same, requiring agencies
to timely exchange information); 49 U.S.C. § 1131(a)(2)(B)
(amendment after TWA hearings providing mechanism to de
clare probe criminal before the FBI can divest the NTSB of
primary jurisdiction)
17
witnesses allowed to speak at hearings); Lahr Aff.”
(App. B at 63). The “FBI objected to [the] use of [the]
CIA video and witness materials or testimony at [the]
public hearing.” Jd. n. 15.'° “Many eyewitnesses vehe-
mently disagree with the conclusions the CIA ex-
pressed in the video animation” (id.), and Lahr is “not
aware of any witness produced by FBI, CIA or NTSB
that corroborated ‘zoom-climb’ theory.” Jd. n. 16.
. ° . . 17
Of the 183 known eyewitnesses to missile fire,
only a scattering of the accounts from these witnesses
*” See also Id. n. 7:
See Affidavit of Rear Admiral Hill, at 417, Exh. C, pp.
2-3 (Bates 46-47) (adopting claims of William Donaldson,
a deceased Naval Commander, that the NTSB assisted
DOJ in hiding a witness and that the head of the FBI
investigation placed the investigation in “pending inac-
tive status” to avoid testing missile theory and to hide
witness testimony); Affidavit of James Speer, at 4] 14-
15 (Bates 184) (ALPA’s representative during the official
probe claims that FBI covered up positive test for
nitrates and hid airplane part); Perry Aff., {| at 50 (Bates
253) (FBI agent stated witness was too far away to see
what she claimed); Lahr Aff, at {] 52-54 (Bates 273) (FBI
would not allow Witness Group to conduct witness
interviews, contrary to normal NTSB procedure); Young
Aff., at | 2() (Bates 394) (non-governmental parties to
investigation had no access to FBI witness summaries
for over [al year).
" After the NTSB Witness Group reconvened (it had been
disbanded), the FBI allowed Safety Board investigators to review
458 interview Reports, with names redacted, “provided no notes
were taken and no copies were made,” according to the resultant
October 17, 1997, Witness Group Factual Report, NTSB Exhibit
4A (see tLahr’s Excerpts). As the district court: observed, the
“Witness Group factual report states that, of 183 witnesses who
(Continued on following page)
18
appeared in print in lesser publications, and not a
single account in the New York Times. The sad fact is
that any eyewitness who desires to share his observa-
tions with the public is compelled to purchase adver-
tising space. On the eve of the second public hearing,
after four years of being ignored, six eyewitnesses
placed a full-page advertisement in the Washington
Times, entitled We Saw TWA Flight 800 Shot Down
By Missiles And We Won't Be Silenced Any Longer.
The August 2000 advertisement is subtitled “Here
observed a streak of light, 96 said it originated from the sur-
face.” App. B at 64 n. 16. Conspicuously absent from the NTSB’s
public docket, containing “over 3,000 [case] documents” (App. A
at 7), is this incriminating Witness Group Factual Report.
That Report also recounts that “[oJn July 21, 1996 ..
Assistant U.S. Attorney Valerie Caproni informed Norm
Weimeyer, head of the Flight 800 probe’s operations group, ‘that
no interviews were to be conducted by the NTSB.’” At the time,
Caproni was Assistant U.S. Attorney in the Criminal Division of
the United States Attorney’s Office, Eastern District of New
York. In August 2003, FBI Director Mueller named her General
Counsel of the FBI. See Corporate Legal Times, The Chosen One,
Oct. 2004, R. Vosper: “In addition, Caproni ruffled some feathers
when she charged James Sanders, a freelance journalist, for
removing a piece of the wreck in order to test it in a lab for
explosive residue ... ‘Conspiracy theorists came out of the
woodwork before the last piece of the plane hit the Atlantic,’ she
says.”
See App. F at 202: Graphic reprinted from March 10, 1997
Press Enterprise Newspaper article, New Data Show Missile
May Have Nailed TWA 800, Debris Pattern Provides Key to
Mystery, reporting that “author and investigative reporter”
James Sanders had gathered and reviewed evidence from which
he had concluded that the crash was the result of a collision
with a missile.
19
Are A Few Of The Hundreds Of Our Statements The
FBI Concealed,” followed by six eyewitness accounts.
It ends, “America Must Know The Truth.” It is re-
printed here, App. F at 207-12, and states in part:
We are some of the hundreds of eyewitnesses
to the crash of TWA Flight 800 that killed
230 people off the coast of Long Island on
July 17, 1996.
We are OUTRAGED that the FBI would not
let a single one of us testify at the NTSB’s
public hearing ... The FBI feared that our
testimony would undermine the video pro-
duced by the CIA that was shown on national
television to persuade viewers that we all
mistook the plane’s burning fuel for a missile
* *
We are INCENSED that for nearly four
years the FBI refused to release its hundreds
of reports of interviews with eyewitnesses
who told them what we saw — the plane
being hit by missiles...
*k 4 -
And we are SHOCKED at the lengths to
which the FBI, the CIA and the NTSB have
all gone to discredit and ignore our testimony
in order to hide the truth.
ok *k
Hundreds of us SAW what happened. The
FBI, the CIA and the NTSB must not be
20
allowed to get away with this cover-up by
defamation of the eyewitnesses...
* % *
Admiral Thomas H. Moorer, former Chair-
man of the Joint Chiefs of Staff, has said,
“All the evidence would point to a missile.”
* * *k
App. F at 207-212.
The advertisement generated no media attention.
The district court reasoned that disclosure might
“assist Plaintiff in investigating and uncovering
government malfeasance by, for instance, leading to
individuals who might repudiate what the govern-
ment attributed to them or might even declare that
the government misused or misrepresented the infor-
mation they provided.” App. C at 105. The court
reasoned that privacy implications from disclosure,
on the other hand, would be minimal.
Defendants proffer no assertions by any of
the eyewitnesses, even in camera, that they
wish to avoid being asked for information.
Even assuming these individuals ultimately
were contacted, if they were not interested in
responding to inquiries, they could easily
decline to be interviewed. Therefore, the
consequences arising from disclosure appear
shght.
App. B at 104-05.
21
The panel relied on Forest Service Employees for
Environmental Ethics v. U.S. Forest Service, 524 F.3d
1021 (9th Cir. 2008) in reversing the district court’s
holding. That case adjudicated the disclosure of the
names of 23 employees that the Forest Service had
redacted from its Report on a controversial fire that
killed two of its own employees, and which led to
OSHA citations and criminal charges. The panel con-
cluded that Lahr “is for all relevant purposes identi-
cal to that in Forest Service Employees.” App. A at 25.
The panel wrote that, under FOIA Exemption 7(C)’s
balancing test, the public could benefit from disclo
sure only if Lahr contacted the eyewitnesses “di-
rectly,” and any contact would infringe on the privacy
interests sought to be protected by Exemption 7(C).
Disclosure of “identities ... alone will shed no new
light on the [Agency’s] ... performance of its duties
beyond that which is already publicly known.” Jd. at
24, quoting Forest Service.
The panel’s conclusion that eyewitnesses who are
not among Lahr’s affiants are “heretofore silent wit-
nesses” who “have by their silence indicated that con-
tact is unwelcome” (App. A at 19-20") works a near
'* The panel reasoned:
In Forest Service Employees, ‘(t]he fact that the record
does not indicate that any of the employees ha[d) spo-
ken out in the five years since the incident occurred
le[d] us to conclude that such contacts [were] unwanted.’
Id. Similarly here: Although some of the eyewitnesses
have spoken out, and indeed, have joined Lahr in
insisting that the NTSB and CIA reconstructions do
(Continued on following page)
22
blanket rule of nondisclosure of eyewitness names,
even where all indications that witnesses to the event
— whose accounts were first, misrepresented, and,
second, ignored ~— want to be heard. Under the panel’s
analysis, the more likely it is that disclosure would
“open up the inner workings of government to public
scrutiny” (Department of Air Force v. Rose, 425 U.S.
352, 372 (1976)), because “inquiries by media repre-
sentatives [are] substantially more likely” (App. A at
20), the less likely the court is to order disclosure.
Once it is determined that a FOIA plaintiff seeks
disclosure of names of eyewitnesses in an effort to
contact them to corroborate or refute what the gov-
ernment attributed to them, the inquiry is at an end,
because the witnesses, or at least those who are not
among the plaintiff’s affiants, have not “come for-
ward publicly.” Jd. at 19. Under the Ninth Circuit’s
reasoning, the greater the possibility that disclosure
of the records will reveal government corruption or
negligence, thereby fulfilling the purpose of the FOIA,
the greater the reason to keep the documents from
the public.
not accord with their perceptions, others have not
come forward publicly despite the widespread pub-
licity given the reconstruction of the incident. It is
presumably these heretofore silent witnesses whom
Lahr wishes to contact. Forest Service Employees indi-
cates that these witnesses have by their silence indi-
cated that contact is unwelcome.
App. A at 19-20.
23
The privacy issue before the lower courts was
whether disclosure of the names corresponding to
accounts that these witnesses allegedly provided to
investigators was a warranted disclosure under Ex-
emption 7(C), which allows withholding records only
if disclosure could be “an unwarranted invasion of
personal privacy.” 5 U.S.C. § 552(b)(7)(C). Warranted
invasions of the personal privacy are not exempt.
Under the panel’s analysis, avoidance of direct con-
tact is analyzed the same in cases involving govern-
ment corruption as it is where the FOIA plaintiff
seeks disclosure to facilitate learning whether stat-
utes are being diligently enforced.”
The panel’s decision is an untenable expansion
of this Court’s holding in United States Dep’t of De-
fense v. Fed. Labor Relations Auth., 510 U.S. 487
'’ The panel cited Painting Indus. of Haw. Mkt. Recovery
Fund v. U.S. Dep't of Air Force, 26 F.3d 1479, 1484-85 (9th Cir.
1994), where a labor organization sought the release of payroll
records submitted to the Air Force by a government contractor
working on an Air Force base in an effort to learn whether the
Air Force was diligently enforcing a federal wage statute. Jd. at
1481. Direct contact with the employees was necessary to ac-
complish the organization’s goal, and it was held that Exemption
6 authorized the Air Force to withhold the payroll records
because the only “additional public benefit” the release of the
employees’ personal information would provide was “inextricably
intertwined” with the invasion of the employees’ privacy. [d. at.
1485. Avoidance of harassment is a cognizable privacy interest
under the FOIA, protecting against “unwanted commercial so-
licitations.” Jd. at 1479.
24
(1994), where Exemption 6” authorized the Defense
Department to withhold the home addresses of its
employees from its response to a FOIA request filed
by the unions representing the employees. Jd. at 502.
Noting that the unions sought this information pre-
cisely because nonunion employees had decided not to
share it with them, the Court found it “clear” that
such employees had “some nontrivial privacy interest
in nondisclosure, and in avoiding the influx of union
related mail, and, perhaps, union-related telephone
calls or visits, that would follow disclosure.” Jd. at 501
(emphasis in original).
In United States Dep't of State v. Ray, 502 U.S.
164, 178-79 (1991), this Court applied Exemption 6 to
withhold the identities of Haitian refugees inter-
viewed in State Department reports where there was
no indication that an additional round of interviews
by the FOIA requester “would produce any relevant
information that is not set forth in the documents
that have already been produced.” The Court explained
20
Because of their similar language, Exemption 7(C) is of-
ten closely associated with Exemption 6. Exemption 6 protects
“personnel ... and similar files the disclosure of which would
constitute a clearly unwarranted invasion of personal privacy,”
whereas Exemption (b)(7) protects law enforcement records which
“could reasonably be expected to constitute an unwarranted in-
vasion of personal privacy” (emphasis added). Ilowever, Exemp-
tions 7(C) and 6 “differ in the magnitude of the public interest
that is required to override the respective privacy interests
protected by the exemptions,” the former being more protective
of privacy than the latter. United States Dept of Defense v. Fed.
Labor Relations Auth., 510 U.S. 487 (1994), 496 n. 6.
25
that an “asserted interest in ascertaining the veracity
of the |government’s] interview reports” would not
outweigh privacy interests, where “[t]here is not a
scintilla of evidence, either in the documents
themselves or elsewhere in the record, that tends to
impugn the integrity of the reports.” Jd. at 179. The
same cannot be said here.
As one court explained, “{f lor example, the public
may have an interest in knowing that a government
investigation itself is comprehensive, that the report
of an investigation released publicly is accurate, that
any disciplinary measures imposed are adequate, and
that those who are accountable are dealt with in an
appropriate manner.” Stern v. F.B.J., 737 F.2d 84, 92
(D.C. Cir. 1984). According to this Court, “[t]he basic
purpose of FOIA is to ensure an informed citizenry,
vital to the functioning of a democratic society, needed
to check against corruption and to hold the governors
accountable to the governed.” NLRB v. Robbins Tire
& Rubber Co., 437 U.S. 214, 242 (1978). “[A] basic
purpose of the FOIA is to... [provide] a needed check
against corruption.” Jd.
“In this case,” wrote the Ninth Circuit, “because
only the names of witnesses and agents are missing
from the released documents, under the applicable
precedents the ‘marginal additional usefulness’ of the
names in exposing government misconduct must
outweigh the privacy interests at stake.” App. A at 23
(citation omitted). The panel dismissed the district
court’s observation that, “fo]ln the other hand, dis-
closure of these persons’ identities ultimately could
26
contribute significantly to the ‘public understanding
of the operations or activities of the government.’”
App. B at 105 quoting United States Dep't of Defense
v. Fed. Labor Relations Auth., 510 U.S. at 494 (1994)
On the issue of disclosure of witness identities,
the Ninth Circuit treats all law enforcement records
equally; such a blanket proscription is in derogation
of this Court’s observation in Dep’t of the Alr Force v.
Rose, 425 U.S. 352, 361 (1976), that “disclosure, not
secrecy, is the dominant objective” of the FOIA. The
Ninth Circuit’s precedent works a near-irrefutable pre-
sumption that the names of witnesses in a criminal
probe cannot be disclosed.
Because “Plaintiff’s assertions have not been
repudiated” (App. B at 61), the panel’s holding was a
pure question of law. Whether to order disclosure of
investigative records of the TWA Flight 800 tragedy is
a question of exceptional importance. The question of
whether the CIA zoom-climb animation 1s “the bold-
est and most flagrant lie ever visited on the American
people in peacetime” is an extremely important one.
As an event cannot be both impossible and possible at
21
the same time, eyewitnesses did not see the aircraft
in “various stages of crippled flight,” as the CIA video
claims, but rather, they saw something else.
* First Strike, J. Cashill & J. Sanders, WND Books 2008,
Chap. 9, The Big Lie, at 155.
27
If unchallenged allegations of the government’s
concealment of the facts of the most controversial
disaster in aviation history~’ do not tip the balance in
favor of disclosure of the eyewitness’ names,” nothing
would. The Ninth Circuit’s precedent results in a near
blanket rule of non-disclosure not contemplated un-
der the FOIA.
“ See Lahr’s Excerpts, Affidavit of Air Line Pilot’s Asso-
ciation representative James Speer: “[I|t’s been successfully
covered up, the truth is not known, and there are many pcople
fortunately still working on it trying to discover the truth... [I}t
was never declared a crime scene ... So here we are in limbo, a
dedicated group of people with a mission to seek the truth,
obstructed by the government.”
** See Lahr’s Excerpts, Affidavit of Blackhawk pilot Major
Fred Meyer: “This was not an accident. . . . If you’re conducting a
missile shoot under the main traffic control routes into New
York City, you have exhibited in my mind, depraved indifference
to human life. That’s not an accident — under any statute — any
codes anywhere. That’s murder. Now, if it was a foreign force —
that’s murder...”
** Nor did the panel affirm disclosure of names redacted
from the CIA’s reports on eyewitnesses who have not been silent,
including Lahr’s affiants. See district court opinion (App. 63 n.
16): “See Brumley Aff., at |] 1-2 (Bates 210) (representation in
video isn’t close to what he saw); Wire Aff., at {4 2-5 (Bates 214)
(what was in video did not represent what he had told agent);
Fuschetti Aff., at J 1-2 (Bates 191) (pilot of other plane never
saw vertical movement); Meyer Aff., at 9 5(b) (Bates 193) (air-
craft never climbed); Angelides Aff., at 7 5 (Bates 215) (anima-
tion bore no resemblance to what he saw).” And see id. at 62 n. 7:
“Perry Aff., J at 50 (Bates 253) (FBI agent stated witness was
too far away to see what she claimed).
28
B. The district court’s inquiry into the de-
liberative process privilege under the
FOIA should not be limited to adjudication
of whether the privilege is properly as-
serted, as such an analysis erroneously
transforms the qualified privilege into an
absolute one
Exemption 5 provides that FOIA disclosure re-
quirements do not apply to information that qualifies
as “inter-agency or intra-agency memorandums or
letters which would not be available by law to a party
other than an agency in litigation with the agency.”
5 U.S.C. § 552(b)(5). “Exemption 5 withholds from a
member of the public documents which a private
party could not discover in litigation with the agency.”
United States v. Weber Aircraft Corp., 465 U.S. 792,
801 (1984). Exemption 5 incorporates all civil discov-
ery privileges; if a document is immune from civil
discovery, it 1s similarly protected from mandatory
disclosure under the FOIA.
The discovery privilege at issue here is the
deliberative process privilege, which is commonly
understood to “cover[ } documents reflecting advisory
opinions, recommendations and deliberations com-
prising part of a process by which governmental
decisions and policies are formulated... .” NLRB ov.
Sears, 421 U.S. 1382, 150 (1975).
The deliberative process privilege is a qualified
privilege.
29
Here, the lower courts followed the rule memo-
rialized by this Court in NLAB (supra), that, in the
FOIA context, the standard to be employed is wheth-
er the documents would “routinely be disclosed” in
civil litigation.” Under this analysis, documents for
which a party would have to make a showing of need
are not routinely disclosed and thus do not fall into
this category. As a result, the qualified deliberative
process privilege is treated as if it were an absolute
one, and courts in FOIA cases do not take into ac-
count a party’s need for the documents in ruling on a
privilege’s applicability. Once a government agency
makes a prima facie showing of privilege, the analy-
sis under FOIA Exemption 5 ceases, and the court
does not proceed to balance the interests.
By contrast, in civil litigation, to decide whether
to uphold a claim of deliberative process privilege, the
“ NLRB v. Sears, 95 S. Ct. 1504, 1516, n. 15 (1975):
The ability of a private litigant to override a privilege
claim set up by the Government, with respect to an
otherwise disclosable document, may itself turn on
the extent of the litigant’s need in the context of the
facts of his particular case, or on the nature of the
case. However it is not sensible to construe the Act to
require disclosure of any document which would be
disclosed in a hypothetical litigation in which the
private party’s claim is the most. compelling. Indeed
the House Report says that Exemption 5 was intended
to permit disclosure of those intra-agency memoranda
which would “routinely be disclosed” in private litiga-
tion and we accept this as the law. H.R. Rep. No.
1497, p. 10.
30
court must balance the government’s claimed need for
secrecy against the court’s own need for evidence to
resolve a dispute before it. In civil discovery disputes,
courts weigh the relative need of the parties and the
kind of litigation involved — a balancing test.
In apparent justification of this disparate treat-
ment of qualified privileges under FOIA, courts ob-
serve that the identity of the litigants and the need
for the evidence is always the same under the FOIA.
The plaintiff’s identity is irrelevant, and the sole
factor weighing in favor of disclosure under the FOIA,
the extent to which disclosure would open up the
inner workings of government to public scrutiny,” is
not considered.
The government’s interpretation is unsupported
by the legislative history, violates the well-settled
principle that FOIA exemptions are to be construed
narrowly, and, indeed, is contrary to the purpose of
the statute.
Congress did not intend a blanket rule of non-
disclosure for deliberative materials. “It is relatively
clear from the legislative history that Congress, like
* United States Dep’t of Defense v. Fed. Labor Relations
Auth., 510 U.S. at 495: The “only relevant ‘public interest in dis-
closure’... is the extent to which disclosure would serve the
‘core purpose of the FOIA,’ which is ‘contributing significantly to
public understanding of the operations or activities of the govern-
ment.” Id. (quoting United States Dep't of Justice v. Reporters
Comm. for Freedom of the Press, 489 U.S. at 775 (1989))
(emphasis in original).
most people in 1966, had never heard of the ‘delibera-
tive process privilege.’ The only privileges specifically
mentioned in the legislative history are the attorney-
client and work product privileges.” McCormick Evid.
§ 108 (6th Ed.) “Forty years ago a writer found very
little authority for any privilege for communications
between government officials. At the time the Federal
Rules of Evidence were adopted, there were only a
handful of cases that recognized the deliberative
process privilege. It is only in the last two decades
that federal courts have developed the privilege.”
Wright and Graham, Fed. Prac. & Pro. Chap. 6 Privi-
leges § 5680 Official Information — Deliberative Proc-
ess Privilege.
Moreover, “(t]he prediction that Exemption 5 was
potentially the ‘most far-reaching’ of the F.O.I.A.
exemptions has proved to be true in practice.” This
far-reaching application was likely the impetus for
President Obama’s January 21, 2009, Memorandum
” Wright and Graham Fed. Prac. & Pro. Chap. 6 Privileges
§ 5680 Official Information — Deliberative Process Privilege:
According to a study by the Congressional Research
Service of the Library of Congress, the (b)(5) exemp-
tion was the second most frequent ground for refusing
to disclose under the Freedom of Information Act
during its first four years, having been invoked in 375
of 1800 refusals while the trade secret and commer-
cial information exemption was invoked 403 times.
See krecdom of Information Act Amendments Source-
book, House Government Operations Committee and
Senate Judiciary Committee, 94th Cong., lst Sess.,
1975, p. 104-105.
32
for the Heads of Executive Departments and Agencies,
where he wrote that “Government should not keep in-
formation confidential merely because public officials
might be embarrassed by disclosure, [or] because
errors and failures might be revealed ... ” In Attor-
ney General Holder’s March 19, 2009, Freedom of In-
formation Act Memorandum of the same name, he
wrote the “[aJn agency should not withhold records
merely because it can demonstrate, as a technical
matter, that the records fall within the scope of a
FOIA exemption.”
An agency’s withholding of documents must fall
into one of nine exemptions. 5 U.S.C. § 552(b)(1)-(9),
552(d). In accordance with the broad disclosure
provisions of FOIA, the enumerated exemptions are
narrowly construed. See, e.g., John Doe Agency uv.
John Doe Corp., 493 U.S. 146, 152 (1989), reh’g de-
nied, 493 U.S. 1064 (1990); Dep’t of Air Force v. Rose,
425 U.S. 352, 361 (1976). Categorical exemption upon
making a prima facie showing of the qualified deliber-
ative process privilege is a narrow construction. So
too with the attorney work product privilege, more
accurately referred to as the work product doctrine.”
In deference to the “philosophy of full agency dis-
closure” that animates FOIA, “[t]he Supreme Court
“ The work product doctrine, recognized by this Court in
Hickman v. Taylor, 329 U.S. 495 (1947), G) protects materials
created by non-lawyers as well as lawyers, and (ii) can be over-
come if the adversary establishes a substantial need for the
material.
33
has interpreted the disclosure provisions of FOIA
broadly... .” Lion Raisins Inc. v. United States Dept
of Agriculture, 354 F.3d 1072, 1079 (9th Cir. 2004).
The purpose of FOIA is to protect “the citizens’ right
to be informed about what their government is up to.”
United States Dept of Justice v. Reporters Comm. for
Freedom of the Press, 489 U.S. 749, 773 (1989).
“Disclosure, not secrecy, is the dominant objective of
FOIA.” Dep’t of the Air Force v. Rose, 425 U.S. 352,
361 (1976). According to this Court, “[t]he basic pur-
pose of FOIA is to ensure an informed citizenry, vital
to the functioning of a democratic society, needed to
check against corruption and to hold the governors
accountable to the governed. NLAB v. Robbins Tire &
Rubber Co., 437 U.S. 214, 242 (1978).
“(We examine first the language of the governing
statute, guided not by a single sentence or member of
a sentence, but looking to the provisions of the whole
law, and to its object and policy.” John Hancock Mut.
Ins. Co. v. Harris Trust & Savings Bank, 114 S. Ct.
517, 523 (1993) (internal quotations, brackets, and
citations omitted).)
After in camera reviews, the lower courts allowed
the government to withhold one record entirely, and
two in part, on the grounds that they were protected
under the deliberative process privilege.
¢ Record 27, an 18-page CIA Report, en-
titled, Dynamic Flight Simulation, dated
March 3, 1998, described by the dis-
trict court “analysis and preliminary
conclusions,” from which the court
34
ordered disclosure of its title, date and
bolded titles, holding the balance to be
deliberative. App B. at 172. The panel
affirmed. App. A at 34.
e Record 28, a March 1998, 17-page CIA
“[djraft report concerning preliminary
analysis and conclusions regarding ra-
dar tracking” (App. B at 174), held par-
tially exempt from disclosure, save its
title, date, bolded titles, and Appendix.
App. Aat 34.
¢ Record 43, a five-page CIA “draft with
handwritten annotations reflecting can-
did discussion and opinion *** re-
garding CIA analysis of eyewitness
reports about the crash ... entitled, “An
Overview of the C.I.A.’s Analysis of
Witness Statements in the TWA Flight
800 Investigation” (App. C at 174), un-
dated, held to be exempt from disclosure
in its entirety. App. A at 33.
The sole factor weighing in favor of disclosure
under the FOIA, the extent to which disclosure would
“open up the inner workings of government to public
scrutiny” (Department of Air Force v. Rose, 425 U.S.
352, 372 (1976), was not considered.
A record is protected by the privilege if its au-
thors were acting within their statutory authority.
Here, they were not. First, the author would have to
be oblivious to the fact that the zoom-climb theory
violates the laws of physics, as well as the fact that
all forensic and testimonial evidence is consistent
35
only with a missile strike. Second, the record itself
must be consistent with good faith deliberation lead-
ing to a good faith conclusion of the existence of a
zoom-climb.
Record 27 is an “eighteen-page CIA document
dated March 1998, described by the agency as a
{d]jraft report containing analysis and preliminary
conclusions regarding further assessment of TWA
Flight 800,’ on the subject of “Dynamic Flight Simu-
lation” (App. A at 33), written after release of CIA’s
animation. From its released headings that record
undoubtedly purports to explain Flight 800’s aerody-
namics. But that impossibility is among numerous
allegations that defendants did not dispute. “On this
motion ... Plaintiff’s assertions have not been
repudiated.” App. B at 61. See also id. at 66: “In fact,
Plaintiff’s evidence suggests the ‘zoom climb’ theory
is aerodynamically impossible.” App. B at 66.
Disclosure of the basis upon which the government
allegedly relied would reveal false assumptions.
Similarly with the CIA’s Record 28, Analysis of
Radar ‘Tracking. Not one of the dozen sets of Radar
data is consistent with any scenario that included a
zoom-climb. If this record reflects that Radar corrobo-
rates the zoom-climb hypothesis, it is false, and if it
contradicts any z00m-climb, it is further evidence
that defendant’s zoom-climb was knowingly false.
Thus, this “radar tracking” record would open up the
inner workings of government to public scrutiny.
36
Record 43, the “Overview of the C.I.A.’s Analysis
of Witness Statements,” is said to “discuss[ ] the CIA’s
assessment of individual eyewitness reports,” with
“(hjandwritten comments and edits appearling] on
each page.” App. A. at 35. Given that the CJA never
interviewed a single eyewitness, as well as the
government's dissemination of scores of fabrications
regarding eyewitness accounts, this record cannot
reflect good faith deliberations regarding eyewit-
nesses’ accounts, but, rather, reflects efforts to cover
them up.
Like most of the CIA records at issue in the case,
these three were generated after the animation’s
broadcast,” but still held to be “predecisional.””’
Lahr also argued “government misconduct,
crime, and fraud bars the application of Exemption
* See, e.g., Lahr’s Excerpts, Clarke Decl., listing 23 con-
tested CIA records, only 11 of which predate the broadcast of the
CIA animation; see also id. at 558 9 13, Schulze Decl.: “(No
supporting acrodynamic calculations were begun until almost a
year later [after broadcast of CLA animation].”
*” The district court reasoned that “[t]he CIA video anima-
tion surely has the status of a final agency decision, but ... the
August 23, 2000 NTSB Aircraft Accident Report also is a final
agency decision, and to the extent that it docs not expressly
incorporate the earlier CIA findings, further work on the matter
after the November 17, 1997 broadcast would be predecisional.”
App. B at 111. Lahr argued that a document is predecisional
when it is “received by the decisionmaker [sic] on the subject of
the decision prior to the time the decision is made,” Sears, 421
U.S. at 151.
37
5.”"" But, ruled the panel, “Lahr did not so argue in
the district court, and so waived the issue.” App. A at
27-28. “Lahr argues that we may nonetheless reach
the question because it is purely one of law,” but,
“thjere, considering the issue for the first time on
appeal would unfairly prejudice the government ...
Lahr did, of course, make general allegations of gov-
ernment misconduct in the district court, as his entire
request is an attempt to prove a massive government
conspiracy. But disproving the general, substantive
allegations of misconduct is not the government’s ob-
ligation in FOIA litigation.” Jd. Under this analysis,
whether the government falsified its version of the
disaster is irrelevant.
As these records purport to explain the impossible,
Lahr has made a clear “allegation of a connection
between these particular documents and government
misconduct,” contrary to the panel’s reasoning. Jd. at
29 n. 14.
The government did not deliberate the aircraft’s
post-initiating event flight trajectory. It deliberated
how to cover it up.
*' App. A at 27-28: “See In re Sealed Case, 121 F.3d 729, 738
(D.C. Cir. 1997) (““[W]here there is reason to believe the docu-
ments sought may shed light on government misconduct, the
privilege is routinely denied, on the grounds that shielding in-
ternal government deliberations in this context does not serve
the public’s interest in honest, effective government.”
38
CONCLUSION
For the reasons set forth above, the petition for a
writ of certiorari should be granted.
Respectfully submitted,
JOHN H. CLARKE
Counsel of Record
1629 K Street, NW
Suite 300
Washington, DC 20006
(202) 332-3030
Counsel for Petitioner
A-P-P-E-N-D-I-X
TABLE OF CONTENTS
Page
APPENDIX A (Opinion of the U.S. Court of
Appeals for the Ninth Circuit, filed
June 22.2009). ........... App. 1
APPENDIX B (Order of the U.S. District
Court for the Central District of
California, filed July 31,2006) .. . . App. 52
APPENDIX C (Order of the U.S. District
Court for the Central District of
California, filed October 4, 2006) . . . App. 126
APPENDIX D (Order of the U.S. District
Court for the Central District of
California, filed March 19, 2007). . . App. 185
APPENDIX E (Order denying Petition
For Rehearing en banc U.S. Court
of Appeals for the Ninth Circuit,
filed dan. 21,2010). ......6%.. App. 199
APPENDIX F (Lahr Excerpts of Record U.S.
Court of Appeals for the Ninth Circuit)
Graphic reprinted from March 10,
1997 Press Enterprise Newspaper
article, New Data Show Missile May
Have Nailed'TWA 800, Debris Pattern
Provides Key to Mystery ....... App. 202
November 17, 1997 CIA Animation,
"What Did The Eyewitnesses See?" four
screen shots
2 ih ae, Me!
i) ee ||
702............... .App. 205
OA. sw tt tt tt ee ee
Wash. 7T1mes advertisement,
August 15,2000. ........... -App. 206
APPENDIX A
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
H. RAY LAHR, )
)
Plaintitf-Cross-Appellant/Appellee, )
) Nos.06-56717
Vv. ) 06-56732, 07-
) 55709
NATIONAL TRANSPORTATION )
SAFETY BOARD; CENTRAL ) D.C. No. 03-
INTELLIGENCE AGENCY; ) 8023-AHM
NATIONAL SECURITY AGENCY, )
) OPINION
Defendants/Cross-Appellees- )
Appellants. )
)
Appeal from the United States District Court
for the Central District of California
A. Howard Matz, District Judge, Presiding
Argued and#Submitted
August 8, 2008—Pasadena, Cal:fornia
Filed June 22, 2009
Before: Roger J. Miner,* Kim McLane Wardlaw and
Marsha 8S. Berzon, Circuit Judges.
Opinion by Judge Berzon
-*The Honorable Roger J. Miner, Senior United
States Circuit Judge for the Second Circuit, sitting by
designation.
COUNSEL
John H. Clarke, Washington, D.C., for plaintiff-cross-
appellant/appellee Ray Lahr.
Steve Frank, Leonard Schaitman, United States
Department of Justice, George S. Cardona, Acting
United States Attorney, and Peter D. Keisler,
Assistant Attorney General, Washington, D.C., for
defendants-appellants/cross appellees National
Transportation Safety Board, et al.
OPINION
BERZON, Circuit Judge:
Trans World Airlines Flight 800 ("TWA Flight 800")
exploded in midair off the coast of Long Island on July
17, 1996, killing all 230 people aboard. The cause of
this dramatic and tragic event remains, for some, in
dispute, and that dispute underlies this lawsuit
brought under the Freedom of Information Act
("FOIA"), 5 U.S.C. § 552.
The government, after an extensive investigation,
concluded that the accident was caused by an
explosion in one of the aircraft's fuel tanks, initiated
by an electrical short circuit. Ray Lahr is, to put it
mildly, not convinced. He maintains that the
government has engaged in a massive cover-up of the
real cause, which he suspects is most likely a strike
App. 2
by a missile launched offshore by the U.S. Navy. In an
attempt to prove his theory, Lahr initiated more than
two hundred FOIA requests for documents and data
to federal agencies involved in the investigation.
When the agencies gave him only some of the
information he asked for, Lahr filed this lawsuit. On
summary judgment, the district court ordered the
government to release some documents in compliance
with his requests but authorized it to withhold others,
as exempt from disclosure pursuant to several of
FOIA's enumerated exemptions. Lahr appeals
several of the district court's rulings authorizing
nondisclosure; the government appeals only one of the
district court's rulings adverse to it. We affirm in
part, reverse in part, and remand.
I. BACKGROUND
A. The Crash and the Investigation
At approximately 8:19 p.m. on July 17, 1996, TWA
Flight 800 left John F. Kennedy Airport in New York
en route to Charles de Gaulle International Airport in
Paris. Twelve minutes after departure, the Boeing
747 aircraft crashed into the Atlantic Ocean.
Everyone on board died. According to the government,
many eyewitnesses reported seeing a "streak of hght,
resembling a flare, moving upward in the sky to the
point where a large fireball appeared." The
eyewitnesses then saw the fireball split into two as it
descended toward the water.
The National Transportation Safety Board ("NTSB")
launched a broad-based civil investigation into the
App. 3
cause of the crash.! As part of its efforts, the NTSB
appointed several entities to assist in_ the
investigation, including the Boeing Company, the Air
Line Pilots Association, and 'I'WA. Initial examination
of the eyewitness reports and information from the
cockpit voice and data recorders led the NTSB to
narrow the possible causes to three: structural failure
of the airplane; a bomb or missile; and an explosion in
the fuel tank. The possibility that a bomb or missile
destroyed TWA Flight 800 led the FBI to launch a
criminal investigation into the incident. As part of its
investigation, the FBI asked Central Intelligence
Agency ("CIA") weapons analysts for assistance in
determining what the eyewitnesses actually saw.
The NTSB's investigation was, in its words, "by far
the most expensive and the most extensive in the
history of the Board." In the end, the NTSB concluded
that the probable cause of the disaster was an
explosion of the aircraft's center wing fuel tank,
resulting from the ignition of a flammable fuel and air
mixture in the tank. Although the NTSB could not
determine with certainty what caused the mixture to
ignite, it believed the explosion was most likely
initiated by a short circuit. The NTSB determined
that the explosion could not have been caused by the
detonation of a bomb or a missile strike.2 A multi-
agency analysis of the wreckage, ninety-five percent
1 The NTSB "is responsible for the _ investigation,
determination of facts, conditions, and circumstances and the
cause or probable cause or causes of: all accidents involving civil
aircraft, and certain public aircraft." 49 C.F.R. § 800.3(a).
2
The NTSB also ruled out structural failure as a cause of
the crash.
of which was recovered, found no evidence of bomb or
missile damage.? The unrecovered pieces of the
aircraft, the NTSB concluded, were not by themselves
large enough to encompass all of the damage that
would have been caused by a bomb or a missile.
Finally, although trace amounts of explosives were
found on three separate picces of the wreckage, "the
lack of any corroborating evidence associated with a
high-energy explosion" led the NTSB to conclude that
the crash was not caused by a bomb or missile strike.
To explain the more than 250 eyewitness accounts
that described "a streak of light" or "a flarelike object"
rising in the sky, the NTSB developed what Lahr calls
the “zoom-climb" theory. In essence, the NTSB's
theory was that the fuel tank explosion caused the
front portion of the aircraft's fuselage to separate
from the rest of the plane and fall to the ocean.
Having lost the considerable mass of the forward
fuselage, the remainder of the plane, now much
lighter and on fire, was rapidly propelled upwards in
the sky, ascending more than 2,000 feet before itself
falling back toward the ocean. As the burning plane
fell, the wings separated from the body of the aircraft,
and the wreckage erupted into a "fuel-fed fireball"
that descended into the water. Thus, the NTSB
contends, the streak of light observed by the
witnesses was not a missile but the burning plane
itself, traveling upward in various stages of "crippled
flight" after the initial explosion took place.‘4
3 This analysis involved the NTSB, the FBI, the Bureau of
Alcohol, Tobacco, and Firearms ("ATE"), and the Federal
Aviation Administration ("FAA").
4 The NTSB concedes that this explanation does not
account for fifty-six eyewitnesses who reported seeing a streak of
App. 5
The NTSB arrived at this conclusion after analyses of
radar data, flight data recorder information, and
proprietary information about the aircraft's weight
and aerodynamics provided by Boeing. NTSB
investigator Dennis Crider completed a Trajectory
Study, which attempted to determine the location of
the plane when various parts fell by mapping the
trajectory of the wreckage as it fell to the ocean floor.
This study led to the conclusion that the forward part
of the plane fell off first. Crider also conducted a
computer-modeled flight-path simulation to
determine the motion of the main body of the aircraft
after the forward fuselage fell off. This simulation
demonstrated that the rest of the aircraft would have
continued to ascend after the loss of the front of the
plane, only later descending toward the ocean. The
NTSB also used computer programs, named
BALLISTIC and BREAKUP, to figure out the path of
certain pieces of the aircraft and the moment when
the forward fuselage separated from the main body.
The CIA's analysis also concluded that the
eyewitnesses did not see ae missile. In its
investigation, the CIA examined eyewitness reports,
radar tracking data, and information from the cockpit
voice and fhght data recorders to reconstruct the
flight path of the aircraft. The CIA analysts
concluded, in accord with the NTSB, that after the
initial explosion, the aircraft “pitched upward" more
than 3,000 feet before a fireball erupted, and the
light ascending vertically or originating at the horizon. It
attributes this discrepancy to deficiencies in interviewing,
documentation, and the eyewitnesses' memory or perception.
App. 6
remainder of the aircraft then descended rapidly.
Thus, like the NTSB, the CIA found that "[t]he
eyewitness sightings of greatest concern—the ones
which originally raised the possibility of a missile—
took place after the aircraft exploded."®
Both the NTSB and the CIA developed video
animations depicting their conclusions regarding the
explosion and the subsequent trajectory of the
aircraft. ‘(he N'I'SB presented four videos depicting
"graphical accident reconstructions" at a December
1997 public hearing. The CIA's video, "What Did the
Eyewitnesses See?” was broadcast on CNN in
November 1997. The CIA did not release any
additional analysis of the accident or conclusions
about what the eyewitnesses saw. After the video
aired, the CIA continued to refine its analysis based
on new data from the NTSB, but its ultimate
conclusion—-that eyewitnesses did not see a missile—
did not change, and the agency did not issue a final
report.
In 2000, the NTSB issued its comprehensive final
report on the crash, explaining its analysis and
conclusions in detail. This report, as well as almost
3,000 documents from the investigation, is publicly
available. Included among the documents in the
public record are FBI summaries of more than 700
eyewitness accounts, some with names and other
identifying information redacted.
5 The CIA's initial conclusion, reported in 1997, that the
plane ascended 3,200 feet differs from the NTSB's conclusion,
reported in 2000, that the maximum ascent was about 2,000 feet.
App. 7
B. The FOIA Requests and Proceedings in the District
Court
Lahr, a former Navy and commercial pilot and a
member of the Air Line Pilots Association, believes
the TWA Flight 800 investigation resulted in a
massive government cover-up of the real cause of the
crash. ‘he true story, according to Lahr, is that an
errant Navy missile caused the crash. The "zoom-
climb" theory is not plausible, Lahr maintains, and
was fraudulently concocted to mislead the public.
Lahr, in an attempt to prove his thesis, made 145
FOIA requests to the NTSB in October 2003. Lahr
informed the NTSB that he was "seeking the N'I'SB's
zoom-climb data and calculations in order to validate
or invalidate the NTSB's and CIA's zoom-climb
conclusions." He further elaborated:
The FOIA Requests are for all records upon
which all publicly released aircraft flight path
climb conclusions are based, including, but not
limited to, the underlying data and basis of all
written reports and all video-animation-
depictions. This includes but is not limited to
all computer simulation and = animation
programs, and the data entered into all such
programs, in each case correlating which data
was entered into which program.
At the same time, Lahr made 105 FOIA requests to
the CIA. Citing the November 1997 video depiction of
the aircraft's trajectory, Lahr indicated that the
request was for all records on which the CIA based its
conclusions regarding the aircraft's climb and flight
path, including those reported in the video depiction.
App. 8
In response to these requests, both agencies
conducted searches for responsive records. They
released certain documents (some of which were
redacted), withheld some documents, and found no
responsive documents for some requests. Dissatisfied
with the agencies' responses, Lahr filed this lawsuit
under FOIA. The agencies moved for summary
judgment, contending that their searches were
adequete and that their withholding of ccrtain
records or parts of records was proper under various
statutory exemptions. On the government's summary
judgment motions, the district court, in two thorough
opinions, decided in Lahr's favor on 26 of the 32
disputed requests.
The government appeals only one aspect of the
district court's ruling. The agencies released eleven
documents with the names of eyewitnesses and FBI
agents redacted, citing Exemptions 6 and 7(C) of
FOIA.6 On summary judgment, the district court
ordered the agencies to release these names, holding
that the public interest in disclosure outweighed the
privacy interests of the witnesses and agents. The
agencies appeal from this decision.
S Exemption 6 states that FOIA does not apply to
"personnel and medical files and similar files the disclosure of
which would constitute a clearly unwarranted invasion of
personal privacy." 5 U.S.C. § 552(b)(6). Exemption 7(C) provides
that FOIA does not apply to matters that are “records or
information compiled for law enforcement purposes, but only to
the extent that the production of such law enforcement records
or information . . . could reasonably be expected to constitute an
unwarranted invasion of personal privecy." /d. § 552(b)(7)(C).
App. 9
Lahr cross-appeals several of the district court's
rulings. The agencies withheld four documents’ under
FOIA Exemption 5, relating to documents protected
under the deliberative process privilege.® The district
court held that Exemption 5 applied to these
documents, as they were both "predecisional" and
"deliberative" and thus properly withheld from
disclosure.
Lahr's FOIA request also sought information about
the agencies' computer simulations. He asked for the
software programs used by the CIA and the NTSB in
running their simulations, as well as the data inputs
the agencies used to generate their results. Although
the district court required the government to disclose
most of the programs themselves, it held that the
agencies could withhold much of the data, including
the data inputs used by the BALLISTIC program that
Lahr claims determined the aircraft's flight path after
the explosion. Lahr appeals from this decision.
Lahr also contends that the agencies’ search for
responsive records was inadequate. The district court
held the government's search adequate in some
respects but not others. On appeal, Lahr contests the
district court's conclusion that certain aspects of the
agencies' search were adequate.
7 As the government explained at oral argument, the
NTSB subsequently released one of these documents, leaving
only three such documents at issue in this appeal.
8 Exemption 5 provides that FOIA does not apply to
"interagency or intra-agency memorandums or letters which
would not be available by law to a party other than an agency in
litigation with the agency." 5 U.S.C. § 552(b)(5).
App. 10
Finally, Lahr contends that the government's
affidavit pursuant to Vaughn v. Rosen, 484 F.2d 820
(D.C. Cir. 1973)—generally known as the "Vaughn
index"—insufficiently described the documents
withheld by the agencies and the FOIA exemptions
that apply to them.
For tne reasons stated below, we reverse the district
court's conclusion that the government must disclose
the names of the eyewitnesses and FBI agents, and
affirm the remainder of the district court's rulings.
Il. DISCUSSION
[1] FOIA “was enacted to facilitate public access to
Government documents." U.S. Dep't of State v. Ray,
502 U.S. 164, 173 (1991). The statute provides public
access to official information "shielded unnecessarily"
from public view and establishes a "judicially
enforceable public right to secure such information
from possibly unwilling official hands." Dep't of Air
Force v. Rose, 425 U.S. 352, 361 (1976) Gnternal
quotation marks omitted). Doing so, it was hoped,
would "ensure an informed citizenry, vital to the
functioning of a democratic society, needed to check
against corruption and to hold the _ governors
accountable to the governed.” John Doe Agency v.
9 While the appeals of the district court's summary
judgment decisions were pending, the district court granted
Lahr's motion for attorneys' fees, awarding him $146,442 in costs
and fees. The government has appealed this award, arguing
that, .f it prevails on its appeal of the summary judgment
decisions, the fee award should be vacated and remanded to the
district court for a new determination. Because we reverse part
of the district court's summary judgment order, we remand the
award of attorneys’ fees for reconsideration.
App. 11
John Doe Corp., 493 U.S. 146, 152 (1989) Gnternal
quotation marks omitted).
[2] At the same time, FOIA contemplates that some
information may legitimately be kept from the public.
The statute contains nine enumerated exemptions
allowing the government to withhold documents or
portions of documents. See 5 U.S.C. § 552(a)(1)-(9).
FOIA's "strong presumption in favor of disclosure"
means that an agency that invokes one of the
statutory exemptions to justify the withholding of any
requested documents or portions of documents bears
the burden of demonstrating that the exemption
properly apples to the documents. Fay, 502 U.S. at
173. Moreover, in light of FOIA's’ purpose of
encouraging disclosure, we have held that "its
exemptions are to be interpreted narrowly." Assemb/y
of Cal. v. U.S. Dep't of Commerce, 968 F.2d 916, 920
(9th Cir. 1992).
In seeking to justify the withholding of some
documents or portions of documents responsive to
Lahr's request, the agencies have invoked several
FOIA exemptions. We discuss the documents and the
relevant exemptions in turn.
A. Eyewitness and FBI Agent Names
In response to Lahr's request, the agencies released
several documents that summarize or _ discuss
eyewltness accounts and contain analysis by FBI
agents involved in the criminal investigation. The
agencies redacted the names of the cyewitnesses and
FBI agents in eleven of these documents, but the
district court ordered the government to release the
names. The government contends that it is entitled to
App. 12
withhold these names from disclosure under FOIA
Exemptions 6 and 7(C), which generally recognize
that individual privacy interests may justify limiting
public disclosure of governmental information in
certain contexts. See Ray, 502 U.S. at 174-75.
[3] Specifically, Exemption 6 states that FOIA does
not apply to "personnel and medica! files and similar
files the disclosure of which would constitute a clearly
u.:warranted invasion of personal privacy." 5 U.S.C. §
552(b)(6). Exemption 7(C) provides that FOIA does
not apply to "records or information compiled for law
enforcement purposes, but only to the extent that the
production of such law enforcement records . . . could
reasonably be expected to constitute an unwarranted
invasion of personal privacy." 5 U.S.C. § 552(b)(7)(C).
Exemptions 6 and 7(C) speak of an "unwarranted"
invasion of personal privacy, not any invasion. So, to
determine whether a record is properly withheld, we
must balance the privacy interest protected by the
exemptions against the public interest in government
openness that would be served by disclosure. See
Nat’? Archives & Records Admin. v. Favish, 541 U.S.
157, 171 (2004); U.S. Dep't of Def v. Ked. Labor
Relations Auth. (FLRA), 510 U.S. 487, 494-95 (1994).
Although both exemptions require such balancing, the
analysis under the two provisions is not the same, as
"Exemption 7(C)'s privacy language is broader than
the comparable language in Exemption 6 in two
respects." U.S. Dep't of Justice v. Reporters Comm. for
Freedom of the Press, 489 U.S. 749, 756 (1989).
[4! Specifically, Exemption 6 requires that the
invasion of privacy b "clear/y unwarranted," a
requirement omitted from the language of Exemption
App. 13
7(C). See isd. Second, whereas Exemption 7(C)
prevents disciosure of information that "could
reasonably be expected to constitute" an unwarranted
invasion of privacy, Exemption 6 limits the protection
to information that "would constitute" an
unwarranted invasion of privacy. /d. at 755-56; see
also Hunt v. FBI, 972 F.2d 286, 287-88 (9th Cir.
1992). In other words, although both exemptions
require the court to engage in a similar balancing
analysis, they "differ in the magnitude of the public
interest that is required to override the respective
privacy interests protected by the exemptions." /LAA,
510 U.S. at 496 n. 6.
The district court found that the documents at issue
were compiled for law enforcement purposes and so
met the threshold test for Exemption 7(C). Lahr has
not challenged this determination on appeal. So, as
the government claimed both exemptions for each
disputed redaction, it need meet only the lower
threshold of Exemption 7(C). See Hunt, 972 F.3d at
288. Because both exemptions require balancing of
public and private interests, cases arising under
Exemption 6 also inform our analysis. /d.
In considering the personal privacy interests at stake,
the Supreme Court has emphasized that "the concept
of personal privacy under Exemption 7(C) is not some
limited or cramped notion of that idea." Favish, 541
U.S. at 165 (internal quotation marks omitted).
Instead, personal privacy interests encompass a broad
range of concerns relating to an "individual's control
of information concerning his or her person,"
Reporters Comm., 489 U.S. at 763, and an "interest in
keeping personal facts away from the public eye." Jd.
at 769.
App. 14
The Supreme Court has also clarified the nature of
the relevant public interests served by disclosure.
Once the government has identified a cognizable
privacy interest, "the on/y relevant public interest in
the FOIA balancing analysis is the extent to which
disclosure of the information sought would shed light
on an agency's performance of its statutory duties or
otherwise let citizens know what their government is
up to." Bibles v. Or. Natural Desert Ass'n, 519 U.S.
355, 355-56 (1997) (per curiam) (alteration and
internal quotation marks omitted). Where there are
relevant privacy interests at stake, a requester must
demonstrate that the interest served by disclosure "is
a significant one, an interest more specific than
having the information for its own sake," and that
disclosure is likely to advance that interest. Favish,
541 U.S. at 172. Where the public interest advanced
is that officials were neghgent or that they otherwise
improperly performed their duties, the requester
must establish "more than a bare suspicion" of
wrongdoing, by "“producling] evidence that would
warrant a belicf by a reasonable person that the
alleged Government imprepriety might have
occurred." /d. at 174.
Applying these considerations, the district court
acknowledged the eyewitnesses’ and FBI agents'
privacy interest in avoiding exposure of their
connection to the incident, but found this interest
weak. On the other hand, the district court found that
Lahr had introduced sufficient evidence of possible
goverament wrongdoing and that disclosure of the
redacted names might direct Lahr to individuals who
could "repudiate what the government attributed to
them or might even declare that the government
App. 15
misused or misrepresented the information they
provided." Accordingly, in balancing the personal
privacy interests of the eyewitnesses and FBI agents
against the public interest in disclosure, the district
court concluded that the balance favored disclosure.
Whether or not we would agree with that conclusion
absent controlling case law, we are compelled by
precedent—especially by a recent case of this court,
Forest Service Employees for Environmental Ethics v.
U.S. Forest Service, 524 F.3d 1021 (9th Cir. 2008), not
available to the district court, to reverse this holding.
1. Privacy Interests
a. Eyewitnesses
[5] We begin with the privacy interests of the
eyewitnesses.!° Releasing unredacted documents
would reveal publicly these eyewitnesses' involvement
in a controversial criminal investigation. The
Supreme Court has indicated that the privacy
interests of citizens are highest when disclosure
would reveal information collected about them in
conjunction with a criminal inquiry, especially where
their link to the investigation is the result of "mere
happenstance." Favish, 541 U.S. at 166. In Favish,
the Court observed that
law enforcement documents obtained by
Government investigators often contain
information about persons interviewed as
witnesses or initial suspects but whose link to
10 Because the privacy interests of the eyewitnesses and
FBI agents differ, we discuss the interests of cach in turn.
App. 16
the official inquiry may be the result of mere
happenstance. There is_- special reason,
therefore, to give protection to this intimate
personal data ....In this class of cases where
the subject of the documents is a _ private
citizen, the privacy interest is at its apex.
/d. (alteration, citation, and internal quotation marks
omitted); see also Reporters Comm., 489 U.S. at 765
("[Dlisclosure of records regarding private citizens,
identifiable by name, is not what the framers of the
FOIA had in mind."). Nothing in the record suggests
that the eyewitnesses' connection to the investigation
was anything more than coincidence. They just
happened to be in the vicinity when the tragedy
occurred, and so saw the incident.
[6] Some concerns about connecting private
individuals to criminal investigations are not present
here-—-for instance, the potential for physical harm or
the disclosure of particularly embarrassing private
details shared in the course of certain investigations.
See, e.g., Ray, 502 U.S. at 175-76; Hunt, 972 F.2d at
288. The potential for unwanted contact by third
parties, including the plaintiff, media entities, and
commercial solicitors, nonetheless remains.!! The
11 The district court observed that release of the unredacted
documents would disclose only the names of eyewitnesses, and
not their home addresses, phone numbers, or other personal
information. In this regard, the information is less invasive than
information some courts have protected to avoid third-party
harassment. See, e.g., Bibles, 519 U.S. 355-456 (mailing lists);
FLRA, 510 U.S. at 502 (home addresses); Painting Indus .of
Haw. Mkt. Recovery Fund v. U.S. Dep't of Air Force, 26 F.3d
1479, 1484-85 (9th Cir. 1994) (names, addresses, and payroll
records). Nevertheless, the release of the witnesses’ names
presumably is sufficient to enable Lahr to contact them:
App. 17
case law establishes that protection from such
unwanted contact facilitated by disclosure of a
connection to government operations and
investigations is a cognizable privacy interest under
Exemptions 6 and 7(C). See, e.g., LRA, 510 U.S. at
501 (protecting the home addresses of USS.
Department of Defense employees from disclosure to
union representatives, citing their "nontrivial privacy
interest in nondisclosure, and in avoiding the influx of
union-related mail, and... telephone calls or visits,
that would follow disclosure"); Minnis v. U.S. Dep't of
Agric., 737 F.2d 784, 787-88 (9th Cir. 1984) (finding
an Exemption 6 privacy interest in names and
addresses of permit holders seeking to avoid
commercial contact); see also, e.g., McDonnell v.
United States, 4 F.3d 1227, 1255-56 (3d Cir. 1993)
(upholding the nondisclosure under Exemption 7(C) of
the names of living witnesses interviewed in the
criminal investigation of a 1934 fire aboard an ocean
liner).
Applying these precedents, we recently held in Forest
Service Employees that government employees
cooperating as witnesses in a disaster investigation
had a cognizable privacy interest under Exemption 6
in preventing the disclosure of their names in
connection with the incident and the official
investigation. 524 F.3d at 1025-27. The Forest Service
contacting the witnesses is precisely why he wants the
information. In fact, the ability to contact the witnesses with
only their names formed the basis of the district court's
conclusion that their disclosure would advance the public
interest: "Disclosure might nevertheless assist Plaintiff in
investigating and uncovering government malfeasance by, for
instance, leading to individue’s who might repudiate what the
government attributed to them. .
App. 18
had released a report investigating its role in an
accident in which two firefighters died fighting a
wildfire (the "Cramer Fire"), but redacted the names
of all Forest Service employees who were mentioned
in the report. /d. at 1023. Although the individuals in
Forest Service Employees were government
employees, most were named in the report simply as
cooperating witnesses in the investigation rather than
as potential wrongdoers. /d. at 1026.
Discussing the cognizable privacy interests at stake,
we observed that "the potential for harassment that
drew the district court's attention was that which
would be presented by the media, curious neighbors,
and the FSEEE [plaintiff Forest Service Employees
for Environmental Ethics] itself." 7d) Like Lahr, the
FSEEE planned to contact the individuals named in
the report should their identities be released, and,
"[mJoreover, in light of the significant public attention
the Cramer Fire received, it is likely that the media
and others would join the FSEEE in such pursuit.” Jd.
Further, in Forest Service Employees, "|t|he fact that
the record does not indicate that any of the employees
hald] spoken out in the five years since the incident
occurred le[d] us to conclude that such contacts [were]
unwanted." /d. Similarly here: Although some of the
eyewitnesses have spoken out, and indeed, have
joined Lahr in insisting that the NTSB and CIA
reconstructions do not accord with their perceptions,
others have not come forward publicly despite the
widespread publicity given the reconstruction of the
incident. It is presumably these heretofore silent
witnesses whom Lahr wishes to contact. Forest
Service Employees indicates that these witnesses
App. 19
have by their silence indicated that contact is
unwelcome.
[7] In short, Forest Service Employees dictates the
result in this case. As in Forest Service Employees,
the plaintiff plans to contact the witnesses if their
names became available. The crash of TWA Fhght
800 gencrated vastly more national and international
media attention than the Cramer Fire, making
inguines by media representatives substantially more
likely than in Forest Service Employees.12 Moreover,
to identify a cognizable privacy interest under
Exemption 7(C), we need not conclude that an
invasion of privacy would occur with certainty, but
only that it could reasonably be expected. See AHwnt,
972 F.2d at 288. Applying the holdiugs of Forest
Service Employees and its predecessors that avoiding
undesired contacts is a protected personal privacy
interest—we conclude that the eyewitnesses have
more than a de minimis privacy interest in avoiding
unwanted contacts by Lahr and others.
b. FBI Agents
[8] The CIA asserts that the FBI agents have a
privacy interest "in not being subjected to unofficial
questioning about the analytic project or investigation
at issue and in avoiding annoyance or harassment in
their official, business, and private lives." We have
held that "individuals do not’ waive all privacy
interests in information relating to them simply by
12 Because FOIA contemplates that "if the information is
subject to disclosure, it belongs to all," Favish, 541 U.S. at 172,
we must consider the effect of releasing the information to the
general public and not jv ¢ to the individual requestor.
App. 20
taking an oath of public office, but by becoming public
officials, their privacy interests are somewhat
reduced." Lissner v. U.S. Customs Serv., 241 F.3d
1220, 1223 (9th Cir. 2001) (citation omitted). The
directly applicable. precedents nonetheless establish
that "I BI agents have a legitimate interest in keeping
private matters that could conceivably subject them to
annoyance or harassment." Hunt, 972 F.2d at 288; see
also, e.g., Wood v. FBI, 432 F.3d 78, 88-89 (2d Cir.
2005); McDonnell, 4 F.3d at 1255; Maynard v. CIA,
986 F.2d 547, 566 (st Cir. 1993).
[9] In particular, courts have recognized that agents
retain an interest in_ keeping private’ their
involvement in investigations of | especially
controversial events. See, e.g., Lesar v. U.S. Dep't of
Justice, 636 F.2d 472, 487-88 (D.C. Cir. 1980)
("[P]ublic identification of the individuals involved in
the FBI's investigation of Dr. [Martin Luther] King
[Jr.} would constitute an unwarranted invasion of
their privacy in light of the contemporary and
controversial nature of the information.") (emphasis
added). And, lower level officials, like the FBI agents
involved here, "generally have a stronger interest in
personal privacy than do senior officials." Dobronski
v. FCC, 17 F.3d 275, 280 n.4 (9th Cir. 1994).
[10] Given the controversial nature of the FBI's
investigation and the level of media attention devoted
to the accident, A’unt directs the conclusion here.
Should the names of the FBI agents mentioned in the
requested documents be revealed, there is some
hkehhood that the agents would be subjected to
unwanted contact by the media and others, including
Lahr, who are. skeptical of the government's
conclusion. Under the case law of this court and
App. 21
others, this potential is sufficient to establish a
cognizable privacy interest.
Lahr contends that the district court properly found
the privacy interests of the FBI agents diminished in
the face of allegations of official impropriety. We have
held that an investigator's privacy interest may be
reduced when there are doubts about the integrity of
his efforts. See Castaneda v. United States, 757 F.2d
1010, 1012 (9th Cir. 1985) (per curiam) ("When the
reliability of the investigator's information is in doubt,
it is difficult to argue that he has a right to be
sheltered from public scrutiny."). There is no evidence
here, however, that the particular FBI agents
mentioned in the requested documents themselves
behaved improperly, or that their individual efforts
were unreliable. See Lissner, 241 F.3d at 1223-24
(noting the diminished Exemption 6 privacy interests
of two city police officers who were arrested for
smuggling steroids in their own arrest reports);
Dobronski, 17 F.3d at 278-79 (holding that an
official's Exemption 6 privacy interests were
diminished where the official's own misconduct was at
issue in the requested documents). In fact, Lahr seeks
the names of these agents in part to contact them
about alleged impropriety by other FBI agents
involved in the suspected cover-up. Although the
public interest in disclosing government impropriety
may outweigh an agent's privacy intcrests in some
circumstances, we cannot say that an FBI agent's
privacy interests are reduced because of speculation
that he may have information about general improper
conduct by the FBI.
[11] Accordingly, as with the eyewitnesses, the case
law compels the conclusion that the FBI agents have
App. 22
a cognizable privacy interest in withholding their
names in the requested documents.
2. Public Interest
[12] Holding that the eyewitnesses and FBI agents
have cognizable privacy interests does not end the
analysis. We must consider whether these interests
are outweighed by the public interest advanced in
disclosing the eyewitness and agent names in the
requested documents.
To advance a relevant public interest, the release of
the eyewitness and FBI agent names must "shed hght
on an agency's performance of its statutory duties or
otherwise let citizens know what their government is
up to." FLRA, 510 U.S. at 497 (alteration and internal
quotation marks). That is, the 2vidence must show
some nexus. between the _ specific requested
information and unveiling agency misconduct—the
public interest advanced here. See Favish, 541 U.s. at
172-73. In this case, because only the names of
witnesses and agents are missing from the released
documents, under the applicable precedents t’»
"marginal additional usefulness" of the names in
exposing government misconduct must outweigh the
privacy interests at stake. Painting Indus., 26 F.3d at
1486.
The district court concluded that "the public interest
in uncovering agency malfeasance and wrongdoing
outweighs" any privacy interest retained by the
eyewitnesses or FBI agents. Specifically, the district
court held that, with respect to the eyewitnesses'
names, "[djisclosure might . . . assist Plaintiff in
investigating and uncovering government
App. 23
malfeasance by, for instance, leading to individuals
who might repudiate what the government attributed
to them or might even declare that the government
misused or misrepresented the information they
provided." In Forest Service Employees, we viewed
skeptically the assertion that the public interest is
materially advanced by _ disclosing names_ of
individuals redacted from documents already in the
public record. We observed:
[T]he identities of the employees alone will
shed no new light on the FTorest Service's
performance of its duties beyond that which is
already publicly known. Instead, the ISEEE
secks to contact these employees itself... to
confirm the veracity of the publicly available
reports. We have previously expressed
skepticism at the notion that such derivative
use of information can justify disclosure under
Exemption 6.
524 F.3d at 1027; see also Ray, 502 U.S. at 178
(questioning, but not deciding, whether a cognizable
public interest is presented where "Itlhe asserted
public interest . . . stems not from the disclosure of
the redacted information itself, but rather from the
hope that respondents [who made the FOIA requests],
or others, may be akie to use that information to
obtain additional information outside the Government
files"). Balancing the relevant privacy and_ public
interests, we noted in Forest Service Employees that
"the only ‘additional public benefit’ the release of the
employees' personal information would provide"—the
ability to cantact witnesses or employees to obtain
information not contained in the report—"was
‘inextricably intertwined’ with tke invasion of the
App. 24
employees’ privacy." 524 F.3d at 1028 (quoting
Painting Indus., 26 F.3d at 1485). After so
recognizing, Forest Service Employees went on to hold
that when "the only way the release of the identities"
will benefit the public "is if the public uses such
information to contact the employees directly." such
use cannot justify release of the information. Jd.
[13] The situation presented here is for all relevant
purposes identical to that in Forest Service
Employees, so we are bound by the outcome in that
case of the balancing of public and private interests.
Lahr already possesses the substance of the
eyewitnesses’ reports and the FBI agents' thoughts as
they are expressed in the released memoranda and
emails. The only way that the identities of the
eyewitnesses and FBI agents mentioned in the
documents already released would have public value
is if these individuals were contacted directly by the
plaintiff or by the media. Under’ Forest
ServiceEmployees, such use is insufficient to override
the witnesses' and agents' privacy interests, as the
disclosure would bring about additional useful
information only if direct contacts, furthering the
privacy intrusion, are made. /d.
[14] Accordingly, we reverse the district court's
decision ordering the agencies to release the names of
eyewitnesses and FBI agents.
A. "Deliberative Process" Documents
Lahr challenges the agencies' withholding of three
documents the agencies claim are part of their
"deliberative process" and thus’ shielded from
disclosure under Exemption 5. Exemption 5 provides
Apn. 25
that FOIA does not apply to "interagency or intra-
agency memorandums or letters which would not be
available by law to a party other than an agency in
litigation with the agency." 5 U.S.C. § 552(b)(5).
Exemption & "shields 'those documents, and only
those documents, normally privileged in the civil
discovery context.'" Carter v. U.S. Dep't of Commerce,
307 F.3d 1084, 1088 (9th Cir. 2002) (quoting NLAB v.
Sears, Roebuck & Co., 421 U.S. 132, 149 (1975)). "In
light of the strong policy of the FOIA that the public is
entitled to know what its government is doing and
why, [E]lxemption 5 is to be applied as narrowly as
consistent with efficient Government operation."
Maricopa Audubon Soc'y v. U.S. Forest Serv., 108
F.3d 1089, 1093 (9th Cir. 1997) Ginternal quotation
marks omitted).
[15] The agencies invoke the "deliberative process"
privilege, which shields’ certain’ intra-agency
communications from disclosure to "allow agencies
freely to explore pussibilitics, engage in internal
debates, or play devil's advocate without fear of public
scrutiny." Assembly of Cal, 968 F.2d at 920. To fall
within this privilege, "a document must be both
‘predecisional' and 'deliberative.' " Jd.
A "predecisional" document is one prepared in
order to assist an agency decisionmaker in
arriving at his decision, and may include
recommendations, draft documents, proposals,
suggestions, and other subjective documents
which reflect the personal opinions of the
writer rather than the policy of the agency. A
predecisional document is a part of the
"deliberative process," if the disclosure of the
materials would expose an agency's
App. 26
decisionmaking process in such a way as to
discourage candid discussion within the agency
and thereby undermine the agency's ability to
perform its functions.
Id. (alteration, citations, and internal quotation
marks omitted). Lahr appeals the district court's
grant of summary judgment, after review of the
documents in camera, as to three documents withheld
pursuant to the deliberative process privilege.158 Lahr
first argues on appeal that government misconduct
bars the application of the exemption. He also
challenges the district court's conclusion that the
documents were predecisional and deliberative. After
reviewing the documents in camera, and giving
deference to the district court's factual findings on
“whether disclosure of the requested information
would reveal anything about the agency's decisional
process," Carter, 307 F.3d at 1088 (internal quetation
marks omitted), we hold that, insofar as they were
challenged in the district court, they properly fall
within Exemption 5.
As a threshold matter, Lahr contends that evidence of
government misconduct, crime, and fraud bars the
apphcation of Exemption 5. See In re Sealed Case,
121 F.3d 729, 738 (D.C. Cir. 1997) ("[W]here there is
reason to believe the documents sought may shed
light on government misconduct, the privilege is
routinely denied, on the grounds that shielding
internal government deliberations in this context does
not serve the public's interest in honest, effective
18 The district court denied the agencies summary
judgment as to some other documents withheld under this
exemption. The agencies do not appeal this ruling.
App. 27
government." (internal quotation marks omitted)).
Lahr did not so argue in the district court, and so
waived the issue. See A-I1 Ambulance Serv., Inc. v.
County of Monterey, 90 F.3d 333, 338 (9th Cir. 1996).
Lahr argues that we may nonetheless reach the
question because it is purely one of law. We do have
limited discretion to consider purely legal arguments
raised for the first time on appeal, sce Parks Sch. of
Bus., Inc. v. Symington, 51 F.3d 1480, 1488 (9th Cir.
1995), but that is so only where "consideration of the
issue would not prejudice the [opposing party's]
ability to present relevant facts that could affect our
decision." Aimes v. Stone, 84 F.3d 1121, 1126 (9th Cir.
1996). Here, considering the issue for the first time on
appeal would unfairly prejudice the government.
Lahr did, of course, make general allegations of
government misconduct in the district court, as his
entire request is an attempt to prove a massive
government conspiracy. But disproving the general,
substantive allegations of misconduct is not the
government's obligation in FOIA litigation. Nor do
Lahr's misconduct allegations specifically relate to the
documents at issue under Exemption 5. Accordingly,
the government was not on notice before the district
court that its failure to submit evidence in response to
those allegations would vitiate its deliberative process
privilege. We hold, therefore, that Lahr waived this
argument by not advancing it in the district
court. 14
14 We also have discretion to reach issues not raised before
the trial court in "the exceptional cases in which review is
necessary to prevent a miscarriage of justice or to preserve the
integrity of the judicial process lor] when a new issue arises
while appeal is pending because of a change in the law." Bolker
App. 28
1. Predecisional and Deliberative
Lahr's contention is that the agencies improperly
withheld these three documents under _ the
deliberative process privilege because they were
created after the agency's final decision, for the
purpose of interpreting or explaining the decision
after the fact. The district court concluded that the
CIA's video animation, presented to the public in
November 1997 (before the date stated on Records 27
and 28), was a final decision. But the court clarified,
however, that the video was not necessarily
the only final disposition. The CIA could have
published some sort of addendum stating it had
received and considered new data and that it
had (or had not) changed its ultimate
conclusion. Although this is not what occurred,
it also is not what was required. Defendants
have presented uncontroverted evidence that
the CIA analyzed new data that led it to reach
a conclusion. That the later conclusion was no
different than the previous one does not
preclude it from being "final" for purposes of
FOIA.
v. Comm'r of Internal Revenue, 760 F.2d 1039, 1042 (9th Cir.
1985) (citation and internal quotation marks omitted). Lahr
invokes this exception as well, but there is no intervening
change in the law, and Lahr cannot meet the miscarriage of
justice standard for the same reasons already surveyed, most
especially because he has not made any allegation of a
connection between these particular documents and government
misconduct.
App. 29
Lahr argues that the district court's analysis is
incorrect. Because the CIA's video was a final] decision
and the CIA issued no subsequent final decision on
the matter, Lahr argues, the records that post date
the video cannot be "predecisional,"
Contrary to Lahr's position, the fact that the CIA did
not issue a subsequent report is, under the applicable
case law, not dispositive of whether the records are
"predecisional." See Sears, 421 U.S. at 151 n.18
(cautioning that the "emphasis on the need to protect
pre-decisional documents does not mean that the
existence of the privilege turns on the ability of an
agency to identify a specific decision in connection
with which a memorandum is prepared"). At the same
time, the absence of an identifiable later decision is of
considerable relevance to the deliberative process
privilege, as evidence of whether a later decision was
indeed under consideration. Otherwise, the privilege
would be boundless, as "[alny memorandum always
will be 'predecisional' if referenced to a decision that
possibly may be made at some undisclosed time in the
future." Assembly of Cal, 968 F.2d at 921.
Applying this understanding, we have rejected the
argument that "a continuing process of agency self>
examination is enough to render a document
‘predecisional." Maricopa Audubon Soc'y, 108 F.3d at
1094. The documents must be prepared to assist an
agency decision-maker in arriving at a_ future
particular decision, although we need not be able to
identify retroactively "the actual decision that was
made" on the basis of the withheld documents. Jd; sce
also Sears, 421 U.S. at 151 n.18. Hence, we have
rejected the applhcation of the privilege to protect
from disclosure the routine collection of data and
App. 30
analysis where the agency could point only to
speculative or generalized purposes for which the
information would be used. See Assembly of Cal., 968
F.2d at 921 (holding that the possible future use of
adjusted census data in calculating population
estimates between censuses did not render the data
"predecisional").
[16] Further, although an agency's issuance of a "final
decision" with respect to a particular issue does not
necessarily preclude the agency from withholding
documents prepared in a subsequent evaluation of the
question with the goal of confirming or rejecting its
earlier conclusions, post-decisional records fall outside
the deliberative process privilege if they follow a final
decision and are designed to explain a decision
already made. As the Supreme Court recognized in
Sears, the purpose of the deliberative process
privilege is to protect the quality of an agency's
decision; revealing "communications made after the
decision and designed to explain it" do not affect a
decision's quality. Sears, 421 U.S. at 152.
Under the deliberative process privilege, a record
must not only be_ predecisional, but also
"deliberative." A document is "deliberative" if "the
disclosure of the materials would expose an agency's
decisionmaking process in such a way as. to
discourage candid discussion within the agency and
thereby undermine the agency's ability to perform its
functions." Assembly of Cal, 968 F.2d at 921 (internal
quotation marks omitted). We give deference to the
district court's factual determination concerning
App. 31
whether that standard is met. Carter, 307 F.3d at
1088.15
We have reviewed the records 7n camera and discuss
below in general terms the applicability of the
15 Lahr also contends that the district court erred in failing
to apply a "balancing test" to the government's withholding of
the three documents under Exemption 5. Relying on Genera/
Services Administration v. Benson, 415 F.2d 878, 880 (9th Cir.
1969), Lahr contends that traditional equity principles apply to
determine whether withholding is warranted under Exemption
5. See Benson, 415 F.2d at 880 (holding that courts must weigh
"the effects of disclosure and nondisclosure, according to
traditional equity principles"). We have subsequently explained
that the FOIA context is different, and that Benson
merely recognized that where docurents normally
privileged in the civil discovery context are involved,
courts may employ in exemption 5 cases the same
equitable principles that they may use to fix the scope of
discovery in civil litigation against an agency. Except in
this limited sense, however, courts do not possess
‘equitable discretion’ to deny FOIA requests.
Maricopa Audubon Soc'y v. U.S. Forest Serv., 108 F.3d 1082,
1088 n.4 (9th Cir. 1997). Thus, any equitable discretion retained
by the district court was limited to determining whether the
withheld documents fell within the scope of the claimed
privilege. Once the court concluded that they did fall within the
privilege, and thus fell within one of FOIA's exemptions, the
district court had no discretion to order the documents released
pursuant to equitable principles. We note, in addition, that the
determination whether a particular document is subject to
discovery in a specific lawsuit will not necessarily determine
whether that same document is subject to FOLIA release. The
identity of litigants and the need for the document in litigation
may render the document nonprivileged in litigation. See F7C v.
Warner Comme'ns, Inc., 742 F.2d 1156, 1161 (9th Cir. 1984) (per
curiam),
App. 32
deliberative process privilege with respect to each of
the withheld documents. !&
2. Documents at Issue
a. Record 27!’
The first document ("Record 27") is an eighteen-page
CIA document dated March 1998, described by the
agency as a "[dJraft report containing analysis and
preliminary conclusions regarding further assessment
of TWA Flight 800," on the subject of "Dynamic Flight
Simulation." The document describes the steps CLA
analysts took in simulating the flight path of the
aircraft, the data and other information important to
the calculations, particular challenges the analysts
faced in conducting the analysis, and
recommendations for agency decisionmakers.
Importantly, the document explicitly discusses
refining the simulation's conclusions based on
additional and more complete data that became
available over the course of the investigation, which
continued after the release of the November 1997
animation. The district court ordered only the title,
date, and bolded headings released.
16 As the government's Vaughn index did not supply
sufficient information for us to determine whether the
documents fell within the privilege, and because the content:
specific nature of the inquiry makes it unlikely that a more
specific Vaughn index would have aided our review, we ordered
the government to produce these documents for our in camera
inspection,
17 Like the district court, we identify the documents by the
Plaintiff's record numbers.
App. 33
Our 77 camera review of the document confirms that
it is predecisional for the purposes of the deliberative
process privilege. Although it is dated after the
November 1997 CIA animation, it was clearly
prepared for the specific purpose of aiding the agency
in its determination of the likely flight path of the
aircraft following the explosion, a determination
central to the CIA's task of explaining what the
eyewitnesses actually saw. Although the document
discusses prior CIA estimates of the aircraft's flight
path, it also reviews those estimates and makes
recommendations.
[17] The document is also "deliberative." It exposes in
detail the thought processes of the CIA analysts °
involved in calculating the simulated flight path, as
well as language reflecting their decisionmaking
process. We agree with the district court that
releasing this record would discourage the type of
candid discussion necessary for effective formulation
of agency decisions, see Assembly of Cal, 963 F.2d at
921, and conclude that the document was properly
withheld pursuant to Exemption 5.
b. Record 28
The second document ("Record 28"), titled "Analysis of
Radar Tracking," is a seventeen-page "[d]raft report
concerning preliminary analysis and_ conclusions
regarding radar tracking of TWA Flight 800." This
document also is dated March 1998. Handwriting on
the document's first page reads "Draft" and "shown to
NTSB but never finalized." As the district court's
description notes, the document "contains conclusions
and thoughts of CIA analysts concerning the viability
and accuracy of certain radar data, the application of
App. 34
such data in determining the flight path of Flight 800,
the problems with certain data and the thought
processes of individuals who analyzed the data." The
district court ordered the government to disclose the
document's title, date, bolded section headings, one
figure, arc’ the document's appendix, which contains
the re u. readings on which the document's analysis
is based. We agree, after reviewing the withheld
portions of the record, that they are both
predecisional and deliberative.
[18] The district court did order the agency to release
the raw data used in the analysis, which was
contained in the document's appendix. ‘The remainder
of the document contains the CIA analysts' evaluation
of that data, their calculations, and their thought
processes. As with Record 27, we agree that release of
the document would expose the agency's internal
deliberations in such a way that would discourage
candid discussion and effective decisionmaking. We
therefore conclude that the agency properly withheld
this document under the Exemption 5 dehberative
process privilege.
c. Record 43
The third document ("Record 43") is a five-page draft
document concerning the CIA's analysis of eyewitness
reports about the crash. A cover page preceding the
document describes it as a "response to allegations of
SA [Name] regarding C.I.A. analysis." The document
discusses the CIA's” assessment of individual
eyewitness reports. Handwritten comments and edits
appear on each page of the document in different
handwriting styles. The district court upheld the
withholding of this document in its entirety.
App. 35
The document is not dated, and its contents do not
clearly indicate whether it was created before or after
the November 1997 CIA animation. In either case, we
are persuaded that the document is_ predecisional.
Each page of the document is labeled "draft," and
several blanks appear in the text where data or other
information would likely be added. Moreover, the
document is a response to one person's criticisms of
the CIA's analysis of witness statements, suggesting
that it was part of an ongoing process of refining the
agency's ultimate conclusions about what the
witnesses saw. This conclusion is_ bolstered by
discussions of previous "drafts" of the CIA's
conclusion and by the absence of any reference to a
final version or to the termination of the CIA's
investigation into the matter.
[19] Moreover, the record is clearly deliberative. Aside
from the text of the draft itself—which discusses the
CIA analysts' impressions of witness statements and
the agency's take on the importance and significance
of certain witnesses—the handwritten comments on
the document, in the words of the district court,
"unquestionably are part of a_ give-and-take
exchange." We conclude that the document
appropriately falls within Exemption 5 and was
properly withheld in its entirety.
In sum, we hold that the withheld portions of each of
the three challenged documents properly fall within
the scope of Exemption 5.
C. Computer Simulation Inputs
Lahr challenges several of the district court's rulings
regarding the computer simulations run by the
agencies. We begin with some background to facilitate
an understanding of what is and what is not at issue
with regard to those simulations. The agencies used
several computer simulation programs in their
investigation of the crash. The CIA used a program
created by the National Security Agency ("NSA"). An
NTSB employee, Dennis Crider, wrote his own
software program. The NTSB also used two programs
called BREAKUP and BALLISTIC. The agencies’ use
of these programs resulted two tynes of potentially
discoverable information: the software programs
themselves and the inputs entered into the programs
by the agencies.
As to the first category—the programs themselves—
there is no dispute on appeal between the parties. The
district court held that the NSA's computer program
fell under an exemption, and Lahr does not challenge
that conclusion, at least with respect to the software
itself. The district court ordered the NTSB to disclose
the Crider program, and the agency does not appeal
this ruling. Finally, the agency does not contest the
district court's order directing the NTSB to search for
the BALLISTIC and BREAKUP programs and
disclose them, if found, subject to any applicable
FOIA exemptions.
The only dispute about the computer simulation
programs arises from the nondisclosure of certain of
the inputs into these software programs. We discuss
below the relevant inputs with respect to each
program.
App. 37
1. NSA Program
The CIA withheld the NSA program, citing FOIA
Exemption 3, which exempts from disclosure matters
"specifically exempted from disclosure by statute," 5
U.S.C. § 552(b)(3), and pointing to the National
Security Agency Act of 1959.18 Lahr concedes that
the NSA program itself falls within this exemption,
but argues on appeal that the data inputs are
segregable and should be disclosed. The district court
concluded that Exemption 3 was "applicable to the
software in its entirety." It is not entirely clear,
however, whether this pronouncement included what
Lahr refers to as the programs inputs, but the
government has not released any of these inputs.
Under Exemption 3 and the NSA statute, information
is properly withheld if the agency "describe[s] the
intelligence activity involved, and . . . showls] why
disclosure of requested materials could reveal the
nature of that activity.". Hayden v. Nat? Sec.
Agency/Cent. Sec. Serv., 608 F.2d 1381, 1391 (D.C.
Cir. 1979). The agency need not make a "specific
showing of potential harm to national security"
because "Congress has already, in enacting the
18 Specifically, the CIA cited section 6(a), which provides, tn
relevant part:
"[Nlothing in this Act or any other law . . . shall be
construed to require the disclosure of the organization or
any function of the National Security Agency, [orl any
information with respect to the activities thereof... ."
National Security Agency Act of 1959, Pub. L. No. 86-36,
§ 6(a), 73 Stat. 63, 64 (codified as amended at 50 U.S.C. §
402 note).
App. 38
statute, decided that disclosure of NSA activities is
notentially harmful." /d. at 1390.
The CIA submitted an initial affidavit from a senior
NSA official stating that "release of the computer
program could expose how the U.S. Government
analyzes the performance characteristics of foreign
weapons systems that are aerodynamic or ballistic."
The district court found this description wanting and
ordered an in camera affiaavit. After reviewing that
in camera submission, the district court concluded
that the affidavit sufficiently described how the
program, "a unique tool for foreign weapons system
analysis," could harm the nation if disclosed. The
district court then concluded that Exemption 3 is
applicable.
[20] After reviewing the NSA's affidavit in camera, we
agree with the district court. The affidavit states that
the program is used to analyze foreign weapons, and
outlines specific reasons why release of the program,
including the data inputs, would put the agency's
sources and methods at risk. We hold that the
affidavit offers a sufficient explanation. The program
and the inputs therefore fall within Exemption 3 and
were properly withheld.
2. Crider Program
As noted, the district court ordered disclosure of the
software for the Crider program, finding that the
program itself was not deliberative and therefore did
not properly fall within Exemption 5. Lahr contests
the district court's conclusion that the simulation
App. 39
inputs did fall within Exemption 5.19 On appeal,
Lahr's sole argument is that a government
misconduct exception bars the applicability of
Exemption 5. As with the other documents withheld
under the deliberative process privilege, we hold that
Lahr waived the argument by not raising it before the
district court. We therefore affirm the district court's
conclusion that the inputs properly fell within
Exemption 5.
3. BALLISTIC and BREAKUP Programs
Lahr made two kinds of requests relating to the
BALLISTIC and BREAKUP programs. First, he
sought the programs’ themselves. Second, he
requested "[aJll records of the formulas and data
entered into the computer simulations regarding the
NTSB's zoom-climb conclusion." The district court
ordered the government to search for and disclose, if
found, the BALLISTIC and BREAKUP programs,
subject to any applicable exemptions. The district
court also ordered the government to review its
records to locate data inputs for the BREAKUP
program and disclose that information, if found. The
government appeals none of these orders.
The district court also found, however, that the
BALLISTIC program, unlike BREAKUP, was “not
used in any manner in connection with the 'zoom-
climb conclusion,’ " and thus held that the data inputs
19 The district court does not expressly state that it found
the simulation inpuis to be deliberative, but it is clear that it so
held from the discussion as a whole. Lahr concedes as much in
his reply brief, stating that "I[t]he district court held that the
simulation inputs were privileged as deliberative," and does not
challenge the "deliberative" classification on appeal.
App. 40
for that piv»gram did not fall within the scope of
Lahr's request. Lahr appeals this ruling, arguing that
the "flight-path of the debris descending"— which he
contends the BALLISTIC program modeled—is
"inextricably a part of the government's theory that
two-thirds of the aircraft ascended."
The government's declarant stated that the
BREAKUP and BALLISTIC programs were not a part
of the simulation program for the main wreckage of
the aircraft, which modeled the ascent of the aircraft
after the separation of the nose section. Instead, these
programs were used for determination of the
trajectory of certain pieces of the aircraft other than
the main section. The declaration provides additional
detail for the BREAKUP program, indicating that it
was used to determine the "timing of the nose
separating from the aircraft." On that basis, the
district court concluded that the BREAKUP program
was in fact relevant to the zoom-climb conclusion.
Importantly, it was the tzming of the nose separation,
not the trajectory of certain pieces of the aircraft, that
the district court found related to the zoom-climb
theory. This conclusion makes sense, given that the
zoom-climb thesis centers on the upward trajectory of
the main body of the aircraft following the nose
separation and has little to do with other pieces of the
plane.
[21] The district court also determined, on the other
hand, that the government had demonstrated that the
BALLISTIC program was not used in connection with
the zoom-climb conclusion. The government's
declaration supports this conclusion. It states that the
only way in which these programs were relevant to
the flight-path simulation was by providing the
App. 41
timing point at which the nose separation occurred.
According to the declaration, this timing information
was obtained solely from the BREAKUP program. In
light of this evidence, we cannot conclude that the
district court's finding that the BALLISTIC program
did not contribute to the zoom-climb theory was
clearly erroneous. We therefore affirm the district
court's conclusion that the data inputs to the
BALLISTIC program were not responsive to Lahr's
request.
D. Adequacy of Search
FOIA requires an agency responding to a request to
"demonstrate that it has conducted a_ search
reasonably calculated to uncover all relevant
documents." Zemansky v. EPA, 767 F.2d 569, 571 (9th
Cir. 1985) Ginternal quotation marks omitted). This
showing may be made by "reasonably detailed,
nonconclusory affidavits submitted in good faith." Jd.
(internal quotation marks omitted).
The NTSB submitted detailed declarations describing
its search, which involved a search of the public
docket, the NTSB's accident investigation files, and
the paper records and computer systems of employees
responsible for the simulations and animations of the
flight path and for the earlier Trajectory Study. The
CIA submitted a declaration explaining its search,
which included a search of automated records and a
manual search of individual analyst files, local
databases, email, and desk files. The search was
focused on the Directorate of Intelligence, the CIA
component determined to be reasonably likely to have
records responsive to Lahr's request.
App. 42
Lahr argues that the government's searches were
inadequate, contending that several produced
documents prove the existence of additional
documents that the agencies failed to produce or to
describe in the government's Vaughn index.2° Lahr
cites fourteen documents he claims contain references
to or suggestions of other documents that should have
been produced.
These references and suggestions fall roughly into two
categories. In the first category, Lahr points to graphs
or charts (some of which are handwritten) that
attempt to map the aircraft's trajectory, and he
argues that the government must identify the source
of the data used to create them. In the second
category, Lahr points to references to other specific
documents. For instance, the CIA disclosed a redacted
letter to Boeing requesting certain "Input variables";
Lahr claims that Boeing's response to this letter was
neither disclosed nor identified. In another example,
pointing to a fax cover sheet that references attached
documents, Lahr complains that the government
failed to disclose these attachments or describe them
in the Vaughn index.
In evaluating the sufficiency of an agency's search,
"the issue to be resolved is not whether there might
exist any other documents possibly responsive to the
20 As described in the next section, the government must
submit an affidavit pursuant to Vaughn, 484 F.2d 820,
identifying the documents withheld, the FOIA exemptions
claimed, and a particularized explanation of why each document
falls within the claimed exemption. Lion Raisins v. U.S. Dep't of
Agric., 354 F.3d 1072, 1082 (9th Cir. 2004).
App. 43
request, but rather whether the search for those
documents was adequate," Zemansky, 767 F.2d at 571
(internal quotation marks omitted); see also Jturralde
v. Comptroller of the Currency, 315 F.3d 311, 315
(D.C. Cir. 2003) ("LL]t is long settled that the failure of
an agency to turn up one specific document in its
search does not alone render a search inadequate.").
For example, in Miller y, U.S. Department of State,
779 F.2d 1378 (8th Cir, 1985), Miller attacked the
agency's search by asserting that he had "repeatedly
identified for the State Department particular
documents which were internally referred to in
documents released to him. He argues that the fact
that these referenced documents were not sent to him
indicates an inadequate search on the part of the
State Department." /d. at 1384. The Eighth Circuit
rejected this challenge:
The fact that a document once existed does not
mean that it now exists: nor does the fact that
an agency created a document necessarily
imply that the agency has retained it. ‘Thus, the
Department is not required by the Act to
account for documents which the requester has
in some way identified if it has made a diligent
search for those documents in the places in
which they might be expected to be found.
Td. at 1385; see also Maynard, 986 F.2d at 563-64;
SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1201
(D.C. Cir. 1991).
Here, with respect to the data referenced in some of
the documents, Lahr only speculates that the agencies
have retained records of the data points used to create
the various charts. Lahr presents no persuasive
App. 44
evidence however that these records now exist and
either evaded discovery during the agencies' searches
or were purposely and improperly withheld. The
government's submissions describe in sufficient detail
the agencies’ search for records such as the data used
to produce these charts. We are satisfied that the
searches were reasonably calculated to uncover
responsive documents.?! The district court found no
evidence of either agency's bad faith in conducting
their searches, and, aside from his general allegations
of government cover-up, Lahr presents no evidence
that would undermine the district court's conclusion.
Lahr's claim that the government's searches were
inadequate because they failed to uncover the records
in the second category—documents referenced in
produced records—also fails for similar reasons. As an
initial matter, we note that there is a mistake or
miscommunication with respect to at least one of the
21 For instance, the NTSB's declaration stated that one
person, Douglas Crider, was "responsible for deriving the
calculations and/or computations of the flight path for TWA
flight 800," and "was the only NTSB staff [member] who created
a computer simulation of the flight path of the accident
airplane." Crider’s declaration describes in detail his several
searches for records responsive to Lahr's requests. Douglass
Brazy "was the only NTSB staff [member] responsible for
creating the animations of the flight path of TWA flight SUO
shown at the public hearing on December 8, 1997." In response
to Lahr's requests, Brazy “searched [his] office { ] and the
computer systems used to create the animations." The CLA's
declaration similarly detailed its search process, which involved
supplementing the search of the automated records system with
a manual search after the automated search turned up no
responsive records.
App. 45
documents allegedly not produced by the CLA.22 In
other instances, it is not clear whether the statements
cited by Lahr actually refer to other documents that
ever existed, let alone existed at the time of the
agencies’ searches.23 With respect to the remaining
few documents, Lahr's contentions are too speculative
to support the conclusion that the agencies’ searches
were inadequate. Even if the documents did exist
when the agencies conducted their searches, the
failure to produce or identify a few isolated documents
cannot by itself prove the searches inadequate.™4
Moreover, Lahr makes no specific allegations that the
government's searches were fraudulent or that it
purposely withheld responsive documents.
22 In this instance, it appears that the agency either did or
intended to produce the document Lahr maintains was not
disclosed. Lahr points to icons indicating Microsoft Word
documents attached to an email with the subject "Final Reports
to the FBI," but represents that the attachments were not
disclosed or identified. Yet, according to the Vaughn index for
this document, the CIA either did or intended to produce the
attached documents. This document thus offers no support for
the claim that the government's search was inadequate
23 For example, Lahr complains that one document appears
to be missing pages because it contains a "Figure 1" and a
"Figure 8" but no Figures 2 through 7. It is possible that pages
are missing, but it is more probable that the document, which is
unsigned and undated, was produced in draft form, so that the
allegedly missing figures did not vet exist. The document
includes place holders for future figures, "figure[s! x and x."
24 The government, of course, must produce responsive
documents actual/y uncovered in a search, unless one of FOLA's
exemptions applies.
App. 46
Finally, Lahr argues that the CIlA should have
disclosed or identified in the VaugAn index a report
on TWA Flight 800 by CIA analyst Randolph Tauss,
which was the subject of a 2003 Washington Post
article (the "Tauss Report"). Lahr's argument fails for
two reasons. First, as the district court found, the
document is not responsive to Lahr's FOLA request.
Lahr requested "all records upon which this publicly
released aircraft flight path climb conclusion las set
forth in the 1997 video] was based." The document is
a narrative recounting of the CIA's participation in
the investigation of the crash, including the use of
eyewitness reports. Although undated, it is clearly a
retrospective look at the CIA's investigation, not a
record on which the CLA's conclusion of the flight path
was based. Second, a_ redacted version of the
document now appears in the public record. The
names of CIA analysts are redacted, but the district
court held that these names were properly withheld
under Exemption 3, and Lahr has not challenged this
ruling on appeal. As Lahr could not get any more of
this document than is now available to him, the issue
is moot.
[22] In sum, we hold that the agencies' declarations
are sufficient to support the conclusion that their
searches were reasonably calculated to uncover
responsive records and were therefore adequete for
the purposes of FOLA.
E. Vaughn Index
Government agencies must submit an affidavit
pursuant to Vaughn, 484 F.2d 820, "identifying the
documents withheld, the FOIA exemptions claimed,
and a_=particularized explanation of why each
App. 47
document falls within the claimed exemption." Lion
Raisins, 354 F.3d at 1082. The Vaughn index "must
be detailed enough for the district court to make a de
novo assessment of the government's claim of
exemption." Jd. (internal quotation marks omitted).
Lahr makes several challenges to the sufficiency of
the government's Vaughn index. "We review de novo
whether the [agency]'s indices and _ supporting
declarations constitute a sufficient Vaughn index."
Citizens Comm'n on Human Fights v. FDA, 45 F.3d
1325, 1328 (9th Cir. 1995).
1. Correlation Records
[23] Lahr first contends that the government's
Vaughn i. dex fails to identify records "correlating"
various information, such as radar, flight data
recorder, and cockpit voice recorder data, with its
zoom-climb conclusion. The NTSB's Vaugén index
does specifically address records of the correlation of
the zoom-climb calculations with these data, referring
Lahr to responsive records available in the public
docket or released in response to the FOIA requests,
or stating that responsive documents were withheld
under Exemption 5. Lahr maintains that the
government's "Vaughn index should identify the
records of the correlations it claims to have
performed." We cannot discern from this articulation
what additional clarification about the available
information Lahr seeks; most likely, he is complaining
not about the Vaughn index, but about the NTSB's
failure to release additional records of this variety. In
any event, we conclude that the government's Vaughn
index sufficiently identifies correlation records.
App. 48
2. CIA Simulation
Lahr next contends that the government's Vaughn
index fails to identify the dates on which the
government ran the NSA simulation program and
whether it was the CIA or the NSA that actually ran
it, arguing that he made a specific request for that
information.25 Specifically, Lahr claims that the CIA
produced two printouts of the simulation with
allegedly different results—one a set of graphical!
charts bearing the date "5/16/97" and the other, data
tables bearing two dates, "3/98" and "3/15/04." Lahr
faults the government's Vaughn index for failing to
state whether both records were generated from the
NSA's simulation program.
[24] The documents produced and the Vaughn index
sufficiently respond to Lahr's request. As to the first
document, there is nothing to suggest that the
graphical charts were not created on the date
specified. According to the government's Vaughn
index, an email accompanying the charts identifies
the CIA agents involved in creating the document, but
their names have been redacted under Exemption 3, a
redaction Lahr does not dispute. The government's
description plainly states that the graphs are
depictions of the results of certain aspects of the
trajectory simulation program, and the email so
confirms. As to the second, it is true that the
document contains two handwritten dates, but the
"3/98" date is preceded by "dated =,” suggesting that
25 Lahr contends that the relevant request was for "all
records reflecting whether or not the NTSB conducted the
computer simulations in-house, and, if not, all records of when,
where, and by whom the computer simulations were performed."
App. 49
the tables report data and results from the simulation
run at that time.26 The document also contains the
redacted name of a CIA analyst involved in the
simulation, as the Vaughn index indicates. ‘The
document explicitly says that the data tables are the
product of the trajectory simulation program. Viewed
together, the documents and the Vaughn index are
sufficient to answer Lahr's challenge.
3. Affiants' Personal Knowledge
As a general matter, "laln affidavit from an agency
employee responsible for supervising a FOIA search is
all that is needed to satisfy" the personal knowledge
requirement of Federal Rule of Civil Procedure 56(e).
Carney v. U.S. Dep't of Justice, 19 F.3d 807, 814 (2d
Cir. 1994); see also Maynard, 986 F.2d at 559-60.
Lahr argues that, although agency affidavits under
FOIA generally may be made based on information
available to the affiant in her official capacity, here,
because he has proven fraud, the CIA should be
required to produce affidavits based only on personal
knowledge. Lahr contends that the CIA omitted
certain key documents in its submission to the district
court and released documents using a confusing
numbering system that complicated his efforts at
organizing the CIA's responses.
26 The computer printout itself contains the "3/15/04" date
that is also handwritten on the front page of the document. The
text of the printout, however, also reads, "Boeing proprietary
information removed." In context, this most likely indicates that
the printout was reproduced at this later date, in response to
Lahr's FOIA request.
App. 50
Lahr properly points out that an agency's proven
misconduct can undermine the presumed veracity of
its affidavits. See, e.g., Jones v. FBI, 41 F.3d 238, 243,
249 (6th Cir. 1994). He points to no authority,
however, that proof of fraud obviates the general rule
applicable in FOJA cases that an affiant need not
have personally conducted the search. Furthermore,
Lahr's complaints about the CIA's handling of his
FOIA requests might suggest some bureaucratic
mismanagement, but they do not prove fraud in that
regard.
[25] We hold that the government's VaugAn index was
sufficient.
For the foregoing reasons, the district court's decision
is AFFIRMED in part, REVERSED in part, and
REMANDED for proceedings consistent with this
opinion.27
27 The district court concluded that, as it ordered
production of twenty six out. of thirty-two contested records, Lahr
"substantially prevailed" within the meaning of the statute. Our
decision reversing the district court's order that the government
rclease names redacted in eleven documents requires that the
district court reconsider its conclusion that Lahr "substantially
prevailed." Our reversal on these eleven documents also could
alter the district court's assessment of Lahr's entitlement to fees
and the calculation of any fees awarded. We therefore remand
for reconsideration of the fee award.
App. 51
APPENDIX B
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CASE NO. CV 03-8023 AHM (RZx)
H. RAY LAHR,
Plaintiff,
Ws
NATIONAL TRANSPORTATION
SAFETY BOARD, CENTRAL
INTELLIGENCE AGENCY and
NATIONAL SECURITY
AGENCY,
Defendants.
ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANT CIA'S SECOND MOTION FOR
PARTIAL SUMMARY JUDGMENT
INTRODUCTION
"Certain historical facts are unassailable, while
others are constantly subject to attack and,
ultimately, remain shrouded in mystery and
confusion." Minier v. Central Intelligence Agency, 88
F.3d 796, 799 (Sth Cir. 1996). This irrefutable
observation aptly describes the controversy that
triggered this lawsuit. Barely more than ten years
ago on July 17, 1996, a United States commercial
aircraft - - TWA Fhght 800 - - exploded in mid-air off
App. 52
the coast of Long Island. Everyone aboard perished.
What happened? How? Why? Who was responsible?
Was it an accident? A terrorist attack?
Of course there was an official investigation. And of
course there was an official explanation. And of
course there was an ensuing torrent of critics and
skeptics who challenged the bona fides of the
investigation and rejected the explanation.
Equally predictable, the doubters (or at least Plaintiff,
representing one group of them) have now turned to
the courts to seek a ruling ordering the Government
to turn over information that it has thus far withheld.
For the reasons set forth below, | find that plaintiff is
entitled to some, but not all, of what he seeks. The
Court therefore GRANTS summary judgment to
Defendants only as to the records specified below.} In
doing so, J do not purport to provide an answer to the
above much-debated questions nor an affirmation or
repudiation of the official government conclusion as to
the cause of the flight's crash.
SUMMARY
DISCLOSURE
MORL NTSB PLAINTIFF JUDGMENT REQUIRED?
551 GRANT NO
DD2 48 DENY YES
1 MORI references are to the last three digits of
Government's numbering system. The multiple identifications
reflect the sad fact that the parties affixed multiple and
confusing identifications to given documents.
App. 53
553 GRANT NO
554 12 DENY YES
555 GRANT NO
556 1 GRANT NO
302 DENY YES
380 8633 66 DENY YES
$82 34 76 DENY YES
382 35 77 DENY YES
22?) 836 78 DENY YES
NSA Computer Program GRANT NO
I, Background
A. Factual Summary*
1. The Crash Investigation and
Ensuing FOIA Litigation
The genesis of this suit lies in the tragic crash of
Trans World Airline ("TWA") Fhght 800 ("Flight
800"). On July 17, 1996, Flight 800 departed from
John F. Kennedy International Airport in New York
2 The following factual summary incorporates facts
presented in all three of the Defendants' various motions for
partial summary judgment.
City, en route to Charles de Gaulle International
Airport in Paris, France. The aircraft crashed into the
Atlantic Ocean twelve minutes after departure. There
were no survivors of the accident and the aircraft, a
Boeing 747-131, was destroyed. Some eyewitnesses
recounted having seen "a streak of hght, resembling a
flare, moving upward in the sky to the point where a
large fireball appeared.... [and] split into two fireballs
as it descended toward the water." Moye Dec/., Ex. IV,
at p. 278.
The National Transportation Safety Board ("NTSB")
is an independent federal agency charged with
investigating civil aviation accidents in the United
States. 49 C.F.R. §§ 800.3, 831.2. The NTSB conducts
investigations in ‘order to determine the
circumstances relating to and the probable causes of
accidents and to make safety recommendations that
are intended "to prevent similar accidents or incidents
in the future." Jd. § 831.4. The NTSB has the
authority to designate parties to assist the agency in
conducting an accident investigation. Jd. § 831.11
("Parties shall be limited to those Persons,
government agencies, companies, and associations
whose employees, functions, activities, or products
were involved in the accident or incident and who can
provide suitable qualified technical personnel actively
to assist in the investigation."). Following an accident
investigation, the NTSB issues its probable cause
determination and safety recommendations in an
official report. Jd. § 831.4.
Per its mandate, the NTSB conducted = an
investigation of Flight 800. The NTSB appointed
several entities as party participants to assist in the
investigation, including the Boeing Commercial
App. 55
Airplane Group ("Bocing CAG") and the Air Linc
Pilots Association
("‘ALPA").3 Boeing also’ voluntarily provided
information to the NTSB and Central Intelligence
Agency ("CIA") concerning flight characteristics and
performance of Boeing 747s. Third Buroker Decl. at §
10. The investigation of Fhght 800 eventually
produced a public docket containing approximately
2,750 documents. Public hearings were held in
December 1997 and in August 2000. On August 23,
2000, the NTSB adopted the "Aircraft Accident
Report: In-flight Breakup Over The Atlantic Ocean"
(the "Accident Report") as the official NTSB accident
report on Flight 800. See Moye Decl. TV. The parties
do not dispute that the Accident Report constitutes
the NTSB's final conclusion as to the probable cause
of the Flight 800 accident, although Plaintiff claims
that the CIA animation, see /nfra, also constitutes a
final conclusion.
The NTSB concluded that during the initial break-up
of the aircraft, the forward fuselage detached from the
remainder of the aircraft. The remainder briefly
continued to climb in "crippled flight." See Moye Decl.,
Ex. IV, at pp. 288, 290. Plaintiff Lahr calls this
3 The other parties included the Federal Aviation
Administration; TWA; the International Association of
Mechanists, Aerospace Workers, and Flight Attendants; the
National Air Traffic Controllers Association; Pratt & Whitney;
Honeywell; and the Crane Company, Hydro-Aire, Inc. Moye Decl,
Ex. IV at p. 302.
App. 56
conclusion, of which he is skeptical, the "zoom-ciimb"
conclusion.4
Dennis Crider, a National Resource Specialist for
Vehicle Simulation in the Vehicle Performance
Division of the NTSB, was assigned to _ the
investigation of Flight 800. Crider was tasked with
determining the trajectories of parts of the aircraft
and the flight path of the main wreckage following the
loss of the forward fuselage. Crider Decl, at 3-5.
Crider developed four reports in the course of his
involvement with the Flight 800 investigation: the
Trajectory Study, the Main Wreckage Flight Path
Study ("Flight Path Study") and the Errata to the
Main Wreckage Flight Path Study, Addendum Ito the
Flight Path Study ("Addendum I"), and Addendum II
to the Flight Path Study ("Addendum II"). These
reports form a part of the extensive Flight 800 public
docket and were considered by the NTSB panel (the
"Safety Board") prior to its issuance of the Accident
Report.
On October 8, 2003, Plaintiff H. Ray Lahr filed over
one hundred Freedom of Information Act ("FOIA")
requests with the NTSB and CIA, many of which have
since been withdrawn. Lahr basically seeks the
records upon which the four Crider reports, two video
animations shown at the 1997 public hearing, and one
4 Defendants construed the term "z00m-climb" conclusion to
refer to the flight path of the aircraft following the loss of the
forward fuselage." NTSB Mot 'n, at p. 4. This construction of the
term corresponds with Lahr's characterization of the "zoom- climb"
as "the aircraft's continuing to fly after the nose of TWA 800 was
blown off, climbing as much as 3,200 feet." Moye Decl., Ex. I-i, at p.
48.
App. 57
CIA animation broadcast on the Cable News Network
("CNN")® are based. The requests are divided into
eleven distinct categories (many of the requests fall
into more than one category):
A, All records of formulas used by the
NTSB in its computations of the zoom
chmb conclusions;
B. All records of the weight and balance
data used by the NTSB in. its
computations of the zoom-climb
conclusions;
C. All records of the formulas and data
entered into the computer simulations
regarding the NTSB's zoom-climb
conclusions;
D. All records reflecting whether or not the
NTSB conducted the computer
simulations in-house, and, if not, all
records of when, where, and by whom
the computer simulations were
performed;
i. The computer simulation programs used
by the NTSB and CIA;
F. The printout of the computer simulations
used by the NTSB;
6 The CIA animation was broadcast on November 17
1997. NTSB Opp'n, at p. 17.
’
App. 58
G. All records of the timing sequence of the
zoom-climb, including, but not limited to
radar, radio transmissions, and the flight
data recorder ("FDR");
ri. All records of the correlation of the zoom-
climb calculations with the actual radar
plot;
[. All records of the information provided
by Boeing to the NTSB used by the
NTSB to calculate these zoom-climb
conclusions;
J. All records of the process by which the
N'TSB arrived at its zoom-climb
conclusions;
K. All records generated or received by the
NTSB used in its computations of its
zoom:climb conclusions.
Moye Decl, Ex. I-1, at p. 49.
The NTSB and CIA performed searches for these
records and located a number of responsive records in
the public docket and in responses to prior FOIA
requests made by Lahr. ‘They released certain records
to Lahr, some of which were redacted. Lahr
challenges the adequacy of the agencies' searches and
the agencies’ decisions to withhold, in full or in part,
various records. The agencies assert that their
searches were adequate, that they have turned over
all responsive records to Lahr, and that they have
properly withheld records, in full or in part, under
App. 59
provisions of FOIA that create exemptions from the
statute's fundamental mandate of disclosure.
2. Plaintiff's Allegations of
Government Impropricty
"[Als a general rule, when documents are within
FOIA's disclosure provisions, citizens should not be
required to explain why they seck the information."
Nat’ Archives & Records Admin. v. Favish, 541 U.S.
157, 172(2004). Here, however, the Government's
basis for withholding many of the contested records is
Kxemption 7(C) under FOIA, which permits the
government to withhold information compiled for law
enforcement purposes that "could reasonably be
expected to constitute an unwarranted invasion of
personal privacy." Ia such circumstances, "to balance
the competing interests in privacy and disclosure
[that courts must weigh in applying Exemption 7(C)],.
the usual rule that the citizen need not offer a
reason for requesting the information must be
inapplicable." Jd. Instead, the requester must
"establish a sufficient reason for the disclosure." /d.
"[Where] the public interest being asserted is to show
that responsible officials acted negligently or
otherwise improperly in the performance of their
duties, the requester must establish more than a bare
suspicion in order to obtain disclosure. Rather, the
requester must produce evidence that would warrant
a behef by a reasonable per
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