# Petition for Writ of Certiorari — Lahr v. National Transportation Safety Board > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1891%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2010 - **Citation:** 561 U.S. 1007 ## Text 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 c [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1891%3A1. Public record. Not legal advice.