Thomas v. U.S. Department of Justice , 260 F. App'x 677 ( 2007 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 21, 2007
No. 06-41139 Charles R. Fulbruge III
Summary Calendar Clerk
HILTON THOMAS
Petitioner-Appellant
v.
U.S. DEPARTMENT OF JUSTICE
Respondent-Appellee
Appeal from the United States United States District Court
for the Eastern District of Texas
USDC No. 1:04-CV-112
Before GARWOOD, GARZA and OWEN, Circuit Judges.
PER CURIAM:*
Hilton Thomas, federal prisoner # 33062-037, brought this action under
the Freedom of Information Act (FOIA), 5 U.S.C. § 552, to obtain audiotapes
made by and in the possession of the Bureau of Prisons (Bureau). The tapes
were of Thomas’s federal-prison telephone conversations with a co-conspirator
while Thomas was serving a life sentence for conspiracy, murder in aid of
racketeering, and drug distribution.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
No. 06-41139
The FOIA mandates disclosure of a federal agency’s records unless they
fall within specific exemptions. Dep’t of the Interior and Bureau of Indian
Affairs v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 7 (2001). Records
or information compiled for law-enforcement purposes need not be disclosed if
their production “could reasonably be expected to constitute an unwarranted
invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C). Thomas’s request was
denied on this basis and the court below held that such denial was proper. The
initial question that a court ordinarily poses in analyzing whether that
exemption applies is whether the records were compiled for law-enforcement
purposes. See cooper Cameron Corp. v. United States Dep’t of Labor, 280 F.3d
539, 545 (5th Cir. 2002). The court below held that the law-enforcement purpose
was present.
Thomas argues that the tapes failed to qualify as law-enforcement records.
He did not raise this argument in trial court, however, presenting it for the first
time in his reply brief in this court. This court will not consider arguments
initially raised in a reply brief. United States v. Jackson, 426 F.3d 301, 304 n.2
(5th Cir. 2005).
The Supreme Court has held as a categorical matter that a third party’s
request for law-enforcement records about a private citizen can reasonably be
expected to invade that citizen’s privacy. U.S. Dep’t of Justice v. Reporters
Committee For Freedom of Press, 489 U.S. 749, 780 (1989). If the requester
seeks no official information about a government agency, but merely seeks
records that the agency happens to be storing, the invasion is unwarranted. Id.
Once a privacy interest has been identified, the person requesting the
information is likely to advance that interest. National Archives and Records
Admin. v. Favish, 541 U.S. 157, 172 (2004). Without such a showing, the
invasion of privacy is unwarranted. Id.
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No. 06-41139
Thomas seeks to learn about prosecutorial misconduct, not the Bureau’s
misconduct. The Bureau, however, is not charged by law with prosecutorial
functions. See 18 U.S.C. § 4042. Because Thomas does not seek official
information that would shed light on the Bureau’s performance of its duties but
instead seeks information about a private citizen that is accumulated in the
Bureau’s files, he has not established a public interest in disclosure that
warrants an invasion of his co-conspirator’s privacy. See Reporters Committee,
489 U.S. at 780 (when “request seeks no ‘official information’ about a
Government agency, but merely records that the Government happens to be
storing, the invasion of privacy is ‘unwarranted’”); see also Burge v. Eastburn,
934 F.2d 577, 580 (5th Cir. 1991) (rejecting request for witness statements in
F.B.I. files because asserted public interest in fair trial is not type of public
interest that compels disclosure).
The district court also properly denied Thomas’s request for redacted
transcripts eliminating the co-conspirator’s words. The FOIA provides that any
“reasonably segregable” portions of an agency record must be released after
deleting the exempt parts. 5 U.S.C. § 552(b); FlightSafety Services Corp. v. Dep’t
of Labor, 326 F.3d 607, 612 (5th Cir. 2003). Release of redacted records is not
required if “any disclosable information is so inextricably intertwined with the
exempt, confidential information that producing it would require substantial
agency resources and produce a document of little information value.” Id.
Thomas made it clear that the tapes are important to him because they allegedly
reveal through his co-conspirator’s words the perjury used by prosecutors to
secure Thomas’s conviction. Therefore, transcripts of redacted conversations
that would exclude what the co-conspirator said would be “of little informational
value.” FlightSafety Services Corp., 326 F.3d at 612. Such redacted material
would reveal only what Thomas said, and he has provided no authority for his
implicit proposition that his words would constitute “evidence that would
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No. 06-41139
warrant a belief by a reasonable person that the alleged Government
impropriety might have occurred.” Favish, 541 U.S. at 175; see also Oguaju v.
United States, 378 F.3d 1115, 1117 (D.C. Cir. 2004) (assertion in sworn affidavit
that government informant committed perjury at trial is too insubstantial to
warrant belief that alleged government impropriety occurred).
The district court also properly dismissed Thomas’s demand for transcripts
of two telephone conversations that took place in November 2003 and in
December 2004. Thomas’s brief on appeal does not challenge this determination.
Further, exhaustion of administrative remedies is required prior to seeking
judicial review of the denial of an FOIA request. Hedley v. United States, 594
F.2d 1043, 1044 (5th Cir. 1979). To obtain judicial review, a party must show
that he first exhausted his administrative remedies. Id. Thomas presented no
such proof with regard to the November and December conversations.
AFFIRMED.
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