Payne v. Dept of Justice ( 1997 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 96-30840
Summary Calendar
_______________________
R. E. PAYNE,
Plaintiff-Appellant,
versus
DEPARTMENT OF JUSTICE; FEDERAL BUREAU OF INVESTIGATION,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
(95-CV-2968-A)
_________________________________________________________________
July 11, 1997
Before JONES, DeMOSS, AND PARKER, Circuit Judges.
PER CURIAM:*
Appellant R.E. Payne appeals the district court’s order
granting the Department of Justice’s and the Federal Bureau of
Investigation’s (the “FBI”) motion for summary judgment and
rejecting his FOIA requests. For the following reasons, we
affirm.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
BACKGROUND
In response to a defamation suit filed by John Volz
against appellant R.E. Payne for information contained in several
publications indicating that Volz had accepted bribes in
connection with his position as a United States Attorney for the
Eastern District of Louisiana and that Volz had ties to the
Mafia, Payne submitted a request to the FBI under the Freedom of
Information Act (“FOIA”), 5 U.S.C. § 552. Payne sought tape
recordings made during a criminal investigation of reputed Mafia
boss Carlos Marcello during the FBI’s BRILAB operation. Payne
also sought any FBI reports summarizing or characterizing the
tape recordings. The Government notified Payne that they did not
have any recordings or documents which would fulfill his request.
On September 8, 1995, Payne filed suit against the
appellees asserting a right to injunctive and declaratory relief
under the FOIA. He sought the same information he previously
requested, except he expanded his request to include one
additional date. On that same day, Payne also filed a Motion for
a Vaughn1 index. The district court denied Payne’s motion, but
reserved his right to reurge the motion “[o]nce the defendants
have had sufficient time to review their files, answer the
1
See Vaughn v. Rosen, 484 F.2d 820, 828 (D.C. Cir. 1973), cert.
denied, 415 U.S. 977 (1974). The purpose of a Vaughn index is to evaluate the
adequacy of an agency’s response to a FOIA request. See Voinche v. FBI, 999 F.2d
962, 963 n.* (5th Cir. 1993).
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complaint, and prepare any dispositive motions.” Payne never
reurged the motion.
Pursuant to his newly expanded request, the FBI
conducted another search to determine whether records or tape
recordings responsive to Payne’s request were located in its New
Orleans Division. The search revealed six tape recordings. It
was subsequently determined that, although responsive to Payne’s
request, the tapes would be withheld under Exemptions 3 and 7(c)
of the FOIA, 5 U.S.C. § 552(b)(3), (b)(7).
On May 30, 1996, the Government filed a motion for
summary judgment contending that it fully discharged its
obligations to Payne because under the FOIA the search for the
requested records was reasonable and the tape recordings were
exempt. The district court granted the motion, holding that the
tape recordings, having been obtained pursuant to Title III of
the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C.
§§ 2510-2521, fell within the scope of Exemption 3 of the FOIA.
Payne timely appealed.
DISCUSSION
We review de novo the district court’s decision
regarding whether items are exempt under FOIA. See Avondale
Indus., Inc. v. NLRB, 90 F.3d 955, 958 (5th Cir. 1996); Voinche
v. FBI, 999 F.2d 962, 963 (5th cir. 1993). In a FOIA case, the
agency has the burden of justifying nondisclosure. See 5 U.S.C.
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§ 552(a)(4)(B). To prevail, an agency must first establish that
it conducted an adequate search for responsive documents, “using
methods which can be reasonably expected to produce the
information requested.” See Oglesby v. U.S. Dep’t of Army, 920
F.2d 57, 68 (D.C. Cir. 1990). An agency may establish
reasonableness through affidavits that provide a reasonably
detailed and non-conclusional description of the agency’s search
methods. See Patterson v. IRS, 56 F.3d 832, 836 (7th Cir. 1995).
If the agency demonstrates that it conducted a reasonable search,
the FOIA requester can rebut the agency affidavits by producing
tangible evidence of bad faith. See Minier v. CIA, 88 F.3d 796,
803 (9th Cir. 1996) (citing Carter v. U.S. Dep’t of Commerce, 830
F.2d 388, 393 (D.C. Cir. 1987)).
Once it is established that the agency conducted a
reasonable search, the agency must then prove that “each document
that falls within the class requested either has been produced,
is unidentifiable, or is wholly exempt from the Act’s inspection
requirements.” Miller v. United States Dep’t of State, 779 F.2d
1378, 1382-83 (8th Cir. 1985) (quoting Nat’l Cable Television
Ass’n v. FCC, 479 F.2d 183, 186 (D.C. Cir. 1973))(internal
quotation marks omitted). If the agency is asserting that a
document is exempt from disclosure, it may sustain its burden
through the submission of detailed affidavits or declarations
that identify the documents and explain why they fall within the
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claimed exemptions. See King v. U.S. Dep’t of Justice, 830 F.2d
210, 217 (D.C. Cir. 1987).
Payne asserts that the FBI failed to perform a
reasonable search and may have acted to conceal the tapes. He
argues that the FBI should have found the tapes sooner and that
the delay in locating the tapes shows the unreasonableness of the
search. His argument is unavailing. The Government established
the reasonableness of its search through the affidavits of Bobbie
S. Olivari and Elizabeth M. Nemeth, the employees responsible for
conducting the search. The affidavits set forth the manner in
which the search was conducted, the files and databases searched,
and the results of the search. Delay in locating a document is
significant only to the extent that the evidence indicates that
the delay resulted from a bad faith refusal to cooperate. See
Miller, 779 F.2d at 1386; Perry v. Block, 684 F.2d 121, 128 (D.C.
Cir. 1982) (adequacy of agency search upheld notwithstanding
delay of over one and one-half years).
Payne also complains that certain tapes that he
believes exist have not been listed. He avers that the failure
of the FBI to list the tapes is further evidence of the
inadequacy of the search and its bad faith. However, an agency
affidavit is accorded a preemption of good faith, which cannot be
rebutted by “purely speculative claims about the existence and
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discoverability of other documents.” Ground Saucer Watch, Inc.
v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981).
Payne’s allegations of conspiracy and cover-ups,
without tangible evidence to support his assertions, are
insufficient to overcome the Government’s submissions. The
agency’s submissions establish that there is no genuine issue of
material fact as to the reasonableness of the FBI’s search.
Further, the district court determined that the tape
recordings, having been obtained pursuant to Title III of the
Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §
2510-21, fell within the scope of Exemption 3 of the FOIA. Payne
asserts only that the district court erred in determining that
Title III communications fell within Exemption 3. His argument
is without merit.
Exemption 3 of the FOIA exempts from disclosure matters
that are:
. . . specifically exempted from disclosure by statute
. . . provided that such statute (A) requires that the
matters be withheld from the public in such a manner as
to leave no discretion on the issue, or (B) establishes
particular criteria for withholding or refers to
particular types of matters to be withheld.
5 U.S.C. § 552(b)(3). Title II prohibits the disclosure of
materials obtained through the use of electronic surveillance
except in very specific, limited circumstances. See 18 U.S.C. §
2517. Contrary to Payne’s assertions, Title III falls squarely
within the scope of Exemption 3 of FOIA. See Davis v. United
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States Dep’t of Justice, 968 F.2d 1276, 1280-81 (D.C. Cir. 1992);
Lam Lek Chong v. U.S. DEA, 929 F.2d 729, 733-34 (D.C. Cir. 1991).
The district court did not err in concluding that the subject
tapes were exempt.
As to Payne’s assertion that the district court erred
in denying his request for a Vaughn index and responses to
interrogatories, this court will intervene in discovery matters
only upon a clear showing of manifest injustice -- where the
lower court’s discovery order was plainly wrong and resulted in
substantial prejudice to the aggrieved party. See Maynard v.
CIA, 986 F.2d 547, 567 (1st Cir. 1993). Payne’s request for a
Vaughn index was denied as premature, and the district court
specifically reserved Payne’s right to reurge his request. Payne
chose not to do so. As to the interrogatories, Payne’s attorney
represented to the court that the information responsive to the
interrogatories was possibly under seal in the BRILAB
prosecution. The court directed Payne to file a motion to unseal
and to keep the court apprised of his efforts. Again, Payne
chose not to do so. The district court did not abuse its
discretion, and we perceive no error here.
AFFIRMED.
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