Lahr v. Ntsb ( 2009 )


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  •                      FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    H. RAY LAHR,                               
    Plaintiff-Cross-Appellant/Appellee,
    v.                             Nos. 06-56717, 06-
    56732, 07-55709
    NATIONAL TRANSPORTATION SAFETY
    BOARD; CENTRAL INTELLIGENCE                        D.C. No.
    AGENCY; NATIONAL SECURITY                      CV-03-08023-AHM
    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, California
    Filed June 22, 2009
    Before: Roger J. Miner,* Kim McLane Wardlaw and
    Marsha S. Berzon, Circuit Judges.
    Opinion by Judge Berzon
    *The Honorable Roger J. Miner, Senior United States Circuit Judge for
    the Second Circuit, sitting by designation.
    7347
    LAHR v. NTSB                     7351
    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, Washing
    7352                      LAHR v. NTSB
    ton, 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 dra-
    matic 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, con-
    cluded 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 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 disclo-
    sure 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.
    LAHR v. NTSB                             7353
    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 min-
    utes 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
    light, 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 cause of
    the crash.1 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 TWA. 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 pos-
    sibility 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 determin-
    ing 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
    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).
    7354                       LAHR v. NTSB
    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 cir-
    cuit. 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
    of which was recovered, found no evidence of bomb or mis-
    sile damage.3 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 explo-
    sives were found on three separate pieces 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 fuse-
    lage, 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 con-
    tends, the streak of light observed by the witnesses was not a
    missile but the burning plane itself, traveling upward in vari-
    2
    The NTSB also ruled out structural failure as a cause of the crash.
    3
    This analysis involved the NTSB, the FBI, the Bureau of Alcohol,
    Tobacco, and Firearms (“ATF”), and the Federal Aviation Administration
    (“FAA”).
    LAHR v. NTSB                              7355
    ous stages of “crippled flight” after the initial explosion took
    place.4
    The NTSB arrived at this conclusion after analyses of radar
    data, flight data recorder information, and proprietary infor-
    mation 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 simula-
    tion to determine the motion of the main body of the aircraft
    after the forward fuselage fell off. This simulation demon-
    strated 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 a missile. In its investigation, the CIA examined
    eyewitness reports, radar tracking data, and information from
    the cockpit voice and flight 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 air-
    craft “pitched upward” more than 3,000 feet before a fireball
    erupted, and the remainder of the aircraft then descended rap-
    idly. Thus, like the NTSB, the CIA found that “[t]he eyewit-
    ness sightings of greatest concern—the ones which originally
    4
    The NTSB concedes that this explanation does not account for fifty-six
    eyewitnesses who reported seeing a streak of light ascending vertically or
    originating at the horizon. It attributes this discrepancy to deficiencies in
    interviewing, documentation, and the eyewitnesses’ memory or percep-
    tion.
    7356                        LAHR v. NTSB
    raised the possibility of a missile—took place after the air-
    craft exploded.”5
    Both the NTSB and the CIA developed video animations
    depicting their conclusions regarding the explosion and the
    subsequent trajectory of the aircraft. The NTSB 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 anal-
    ysis of the accident or conclusions about what the eyewit-
    nesses 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 docu-
    ments in the public record are FBI summaries of more than
    700 eyewitness accounts, some with names and other identi-
    fying information redacted.
    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. The 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.
    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.
    LAHR v. NTSB                        7357
    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 NTSB’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 anima-
    tion programs, and the data entered into all such pro-
    grams, 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 air-
    craft’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.
    In response to these requests, both agencies conducted
    searches for responsive records. They released certain docu-
    ments (some of which were redacted), withheld some docu-
    ments, and found no responsive documents for some requests.
    Dissatisfied with the agencies’ responses, Lahr filed this law-
    suit under FOIA. The agencies moved for summary judgment,
    contending that their searches were adequate and that their
    withholding of certain records or parts of records was proper
    under various statutory exemptions. On the government’s
    summary judgment motions, the district court, in two thor-
    ough opinions, decided in Lahr’s favor on 26 of the 32 dis-
    puted requests.
    The government appeals only one aspect of the district
    court’s ruling. The agencies released eleven documents with
    7358                          LAHR v. NTSB
    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.
    Lahr cross-appeals several of the district court’s rulings.
    The agencies withheld four documents7 under FOIA Exemp-
    tion 5, relating to documents protected under the deliberative
    process privilege.8 The district court held that Exemption 5
    applied to these documents, as they were both “predecisional”
    and “deliberative” and thus properly withheld from disclo-
    sure.
    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
    6
    Exemption 6 states that FOIA does not apply to “personnel and medi-
    cal files and similar files the disclosure of which would constitute a clearly
    unwarranted invasion of personal privacy.” 
    5 U.S.C. § 552
    (b)(6). Exemp-
    tion 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 privacy.” 
    Id.
     § 552(b)(7)(C).
    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).
    LAHR v. NTSB                           7359
    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 govern-
    ment’s search adequate in some respects but not others. On
    appeal, Lahr contests the district court’s conclusion that cer-
    tain aspects of the agencies’ search were adequate.
    Finally, Lahr contends that the government’s affidavit pur-
    suant 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 the 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.9
    II.    DISCUSSION
    [1] FOIA “was enacted to facilitate public access to Gov-
    ernment 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) (internal
    quotation marks omitted). Doing so, it was hoped, would “en-
    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, if it prevails on its appeal of the summary judg-
    ment decisions, the fee award should be vacated and remanded to the dis-
    trict 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.
    7360                    LAHR v. NTSB
    sure an informed citizenry, vital to the functioning of a demo-
    cratic society, needed to check against corruption and to hold
    the governors accountable to the governed.” John Doe Agency
    v. John Doe Corp., 
    493 U.S. 146
    , 152 (1989) (internal quota-
    tion marks omitted).
    [2] At the same time, FOIA contemplates that some infor-
    mation may legitimately be kept from the public. The statute
    contains nine enumerated exemptions allowing the govern-
    ment 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 bur-
    den of demonstrating that the exemption properly applies to
    the documents. Ray, 
    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.” Assembly 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 agen-
    cies 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 eyewitness accounts
    and contain analysis by FBI agents involved in the criminal
    investigation. The agencies redacted the names of the eyewit-
    nesses 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 withhold these
    names from disclosure under FOIA Exemptions 6 and 7(C),
    which generally recognize that individual privacy interests
    LAHR v. NTSB                       7361
    may justify limiting public disclosure of governmental infor-
    mation in certain contexts. See Ray, 
    502 U.S. at 174-75
    .
    [3] Specifically, Exemption 6 states that FOIA does not
    apply to “personnel and medical files and similar files the dis-
    closure of which would constitute a clearly unwarranted inva-
    sion of personal privacy.” 
    5 U.S.C. § 552
    (b)(6). Exemption
    7(C) provides that FOIA does not apply to “records or infor-
    mation 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 pub-
    lic interest in government openness that would be served by
    disclosure. See Nat’l Archives & Records Admin. v. Favish,
    
    541 U.S. 157
    , 171 (2004); U.S. Dep’t of Def. v. Fed. Labor
    Relations Auth. (FLRA), 
    510 U.S. 487
    , 494-95 (1994).
    Although both exemptions require such balancing, the analy-
    sis under the two provisions is not the same, as “Exemption
    7(C)’s privacy language is broader than the comparable lan-
    guage 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 be “clearly unwarranted,” a requirement omitted from
    the language of Exemption 7(C). See 
    id.
     Second, whereas
    Exemption 7(C) prevents disclosure 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. 
    Id. at 755-56
    ; see also Hunt v. FBI, 
    972 F.2d 286
    ,
    287-88 (9th Cir. 1992). In other words, although both exemp-
    7362                     LAHR v. NTSB
    tions require the court to engage in a similar balancing analy-
    sis, they “differ in the magnitude of the public interest that is
    required to override the respective privacy interests protected
    by the exemptions.” FLRA, 
    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 thresh-
    old 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. Id.
    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 quota-
    tion marks omitted). Instead, personal privacy interests
    encompass a broad range of concerns relating to an “individu-
    al’s control of information concerning his or her person,”
    Reporters Comm., 
    489 U.S. at 763
    , and an “interest in keep-
    ing personal facts away from the public eye.” 
    Id. at 769
    .
    The Supreme Court has also clarified the nature of the rele-
    vant public interests served by disclosure. Once the govern-
    ment has identified a cognizable privacy interest, “the only
    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 dis-
    closure “is a significant one, an interest more specific than
    having the information for its own sake,” and that disclosure
    LAHR v. NTSB                       7363
    is likely to advance that interest. Favish, 
    541 U.S. at 172
    .
    Where the public interest advanced is that officials were neg-
    ligent or that they otherwise improperly performed their
    duties, the requester must establish “more than a bare suspi-
    cion” of wrongdoing, by “produc[ing] evidence that would
    warrant a belief by a reasonable person that the alleged Gov-
    ernment impropriety might have occurred.” 
    Id. at 174
    .
    Applying these considerations, the district court acknowl-
    edged 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
    government 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 misused or misrepresented the informa-
    tion 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.10
    Releasing unredacted documents would reveal publicly these
    10
    Because the privacy interests of the eyewitnesses and FBI agents dif-
    fer, we discuss the interests of each in turn.
    7364                       LAHR v. NTSB
    eyewitnesses’ involvement in a controversial criminal investi-
    gation. 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 crimi-
    nal 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
    [l]aw enforcement documents obtained by Govern-
    ment investigators often contain information about
    persons interviewed as witnesses or initial suspects
    but whose link to 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 inter-
    est is at its apex.
    
    Id.
     (alteration, citation, and internal quotation marks omitted);
    see also Reporters Comm., 
    489 U.S. at 765
     (“[D]isclosure 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 par-
    ties, including the plaintiff, media entities, and commercial
    solicitors, nonetheless remains.11 The case law establishes that
    11
    The district court observed that release of the unredacted documents
    would disclose only the names of eyewitnesses, and not their home
    LAHR v. NTSB                            7365
    protection from such unwanted contact facilitated by disclo-
    sure of a connection to government operations and investiga-
    tions is a cognizable privacy interest under Exemptions 6 and
    7(C). See, e.g., FLRA, 
    510 U.S. at 501
     (protecting the home
    addresses of U.S. Department of Defense employees from dis-
    closure to union representatives, citing their “nontrivial pri-
    vacy 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 pri-
    vacy interest in names and addresses of permit holders seek-
    ing 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 investi-
    gation of a 1934 fire aboard an ocean liner).
    Applying these precedents, we recently held in Forest Ser-
    vice 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 had
    released a report investigating its role in an accident in which
    two firefighters died fighting a wildfire (the “Cramer Fire”),
    addresses, phone numbers, or other personal information. In this regard,
    the information is less invasive than information some courts have pro-
    tected to avoid third-party harassment. See, e.g., Bibles, 
    519 U.S. 355
    -56
    (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). Never-
    theless, the release of the witnesses’ names presumably is sufficient to
    enable Lahr to contact them; 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 nev-
    ertheless assist Plaintiff in investigating and uncovering government mal-
    feasance by, for instance, leading to individuals who might repudiate what
    the government attributed to them . . . .”
    7366                    LAHR v. NTSB
    but redacted the names of all Forest Service employees who
    were mentioned in the report. Id. at 1023. Although the indi-
    viduals in Forest Service Employees were government
    employees, most were named in the report simply as cooper-
    ating witnesses in the investigation rather than as potential
    wrongdoers. Id. at 1026.
    Discussing the cognizable privacy interests at stake, we
    observed that “the potential for harassment that drew the dis-
    trict 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.” Id. Like
    Lahr, the FSEEE planned to contact the individuals named in
    the report should their identities be released, and,
    “[m]oreover, 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.” Id.
    Further, 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 not accord with their perceptions, oth-
    ers have not come forward publicly despite the widespread
    publicity given the reconstruction of the incident. It is pre-
    sumably these heretofore silent witnesses whom Lahr wishes
    to contact. Forest Service Employees indicates that these wit-
    nesses have by their silence indicated that contact is unwel-
    come.
    [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 Flight 800 generated vastly more national and
    international media attention than the Cramer Fire, making
    inquiries by media representatives substantially more likely
    LAHR v. NTSB                              7367
    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
    Hunt, 
    972 F.2d at 288
    . Applying the holdings of Forest Ser-
    vice 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 pri-
    vate lives.” We have held that “individuals do not waive all
    privacy interests in information relating to them simply by
    taking an oath of public office, but by becoming public offi-
    cials, 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 nonethe-
    less establish that “FBI 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); McDon-
    nell, 
    4 F.3d at 1255
    ; Maynard v. CIA, 
    986 F.2d 547
    , 566 (1st
    Cir. 1993).
    [9] In particular, courts have recognized that agents retain
    an interest in keeping private their involvement in investiga-
    tions 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)
    12
    Because FOIA contemplates that “if the information is subject to dis-
    closure, 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 just to the
    individual requestor.
    7368                     LAHR v. NTSB
    (“[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 informa-
    tion.”) (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 investiga-
    tion and the level of media attention devoted to the accident,
    Hunt directs the conclusion here. Should the names of the FBI
    agents mentioned in the requested documents be revealed,
    there is some likelihood 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 others, this potential is sufficient to
    establish a cognizable privacy interest.
    Lahr contends that the district court properly found the pri-
    vacy interests of the FBI agents diminished in the face of alle-
    gations 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 informa-
    tion 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 inter-
    ests of two city police officers who were arrested for smug-
    gling 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 miscon-
    duct was at issue in the requested documents). In fact, Lahr
    seeks the names of these agents in part to contact them about
    LAHR v. NTSB                     7369
    alleged impropriety by other FBI agents involved in the sus-
    pected cover-up. Although the public interest in disclosing
    government impropriety may outweigh an agent’s privacy
    interests 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 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 light on an agen-
    cy’s performance of its statutory duties or otherwise let citi-
    zens know what their government is up to.” FLRA, 
    510 U.S. at 497
     (alteration and internal quotation marks). That is, the
    evidence 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 the “marginal additional usefulness” of the names
    in exposing government misconduct must outweigh the pri-
    vacy 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
    7370                     LAHR v. NTSB
    agents. Specifically, the district court held that, with respect
    to the eyewitnesses’ names, “[d]isclosure might . . . assist
    Plaintiff in investigating and uncovering government malfea-
    sance by, for instance, leading to individuals who might repu-
    diate 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 Forest Service’s performance of its
    duties beyond that which is already publicly known.
    Instead, the FSEEE seeks 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 pre-
    sented where “[t]he 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 able 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 contact witnesses or employ-
    ees to obtain information not contained in the report—“was
    ‘inextricably intertwined’ with the invasion of the 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
    LAHR v. NTSB                       7371
    identities” will benefit the public “is if the public uses such
    information to contact the employees directly,” such use can-
    not justify release of the information. 
    Id.
    [13] The situation presented here is for all relevant pur-
    poses 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 Service
    Employees, 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. 
    Id.
    [14] Accordingly, we reverse the district court’s decision
    ordering the agencies to release the names of eyewitnesses
    and FBI agents.
    B.   “Deliberative Process” Documents
    Lahr challenges the agencies’ withholding of three docu-
    ments the agencies claim are part of their “deliberative pro-
    cess” and thus shielded from disclosure under Exemption 5.
    Exemption 5 provides that FOIA does not apply to “intera-
    gency or intra-agency memorandums or letters which would
    not be available by law to a party other than an agency in liti-
    gation with the agency.” 
    5 U.S.C. § 552
    (b)(5). Exemption 5
    “shields ‘those documents, and only those documents, nor-
    mally privileged in the civil discovery context.’ ” Carter v.
    U.S. Dep’t of Commerce, 
    307 F.3d 1084
    , 1088 (9th Cir. 2002)
    (quoting NLRB 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
    7372                       LAHR v. NTSB
    why, [E]xemption 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) (internal quotation marks omitted).
    [15] The agencies invoke the “deliberative process” privi-
    lege, which shields certain intra-agency communications from
    disclosure to “allow agencies freely to explore possibilities,
    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 ‘predeci-
    sional’ and ‘deliberative.’ ” 
    Id.
    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 subjec-
    tive 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 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 omit-
    ted).
    Lahr appeals the district court’s grant of summary judg-
    ment, after review of the documents in camera, as to three
    documents withheld pursuant to the deliberative process privi-
    lege.13 Lahr first argues on appeal that government miscon-
    duct bars the application of the exemption. He also challenges
    13
    The district court denied the agencies summary judgment as to some
    other documents withheld under this exemption. The agencies do not
    appeal this ruling.
    LAHR v. NTSB                        7373
    the district court’s conclusion that the documents were prede-
    cisional 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 quotation 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 gov-
    ernment misconduct, crime, and fraud bars the application 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 privi-
    lege is routinely denied, on the grounds that shielding internal
    government deliberations in this context does not serve the
    public’s interest in honest, effective government.” (internal
    quotation marks omitted)). Lahr did not so argue in the dis-
    trict court, and so waived the issue. See A-1 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, see Parks Sch. of Bus., Inc. v. Symington, 
    51 F.3d 1480
    , 1488 (9th Cir. 1995), but that is so only where “consid-
    eration of the issue would not prejudice the [opposing party’s]
    ability to present relevant facts that could affect our decision.”
    Kimes 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 govern-
    ment 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 docu-
    7374                          LAHR v. NTSB
    ments at issue under Exemption 5. Accordingly, the govern-
    ment was not on notice before the district court that its failure
    to submit evidence in response to those allegations would viti-
    ate its deliberative process privilege. We hold, therefore, that
    Lahr waived this argument by not advancing it in the district
    court.14
    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 ani-
    mation, 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 necessar-
    ily
    the only final disposition. The CIA could have pub-
    lished 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 differ-
    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 miscar-
    riage of justice or to preserve the integrity of the judicial process [or]
    when a new issue arises while appeal is pending because of a change in
    the law.” Bolker 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 mis-
    conduct.
    LAHR v. NTSB                       7375
    ent than the previous one does not preclude it from
    being “final” for purposes of FOIA.
    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 “prede-
    cisional.”
    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 rel-
    evance to the deliberative process privilege, as evidence of
    whether a later decision was indeed under consideration. Oth-
    erwise, the privilege would be boundless, as “[a]ny memoran-
    dum 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 argu-
    ment 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. Id.; see also Sears, 
    421 U.S. at
    151 n.18. Hence, we have rejected the application of
    the privilege to protect from disclosure the routine collection
    of data and 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
     (hold-
    7376                          LAHR v. NTSB
    ing that the possible future use of adjusted census data in cal-
    culating 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 necessar-
    ily 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 dis-
    courage 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 whether that standard is met. Car-
    ter, 
    307 F.3d at 1088
    .15
    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 General Services Administration v. Ben-
    son, 
    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 con-
    text is different, and that Benson
    merely recognized that where documents normally privileged in
    the civil discovery context are involved, courts may employ in
    LAHR v. NTSB                            7377
    We have reviewed the records in camera and discuss below
    in general terms the applicability of the deliberative process
    privilege with respect to each of the withheld documents.16
    2.   Documents at Issue
    a.   Record 2717
    The first document (“Record 27”) is an eighteen-page CIA
    document dated March 1998, described by the agency as a
    “[d]raft report containing analysis and preliminary conclu-
    sions regarding further assessment of TWA Flight 800,” on
    the subject of “Dynamic Flight Simulation.” The document
    describes the steps CIA analysts took in simulating the flight
    path of the aircraft, the data and other information important
    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 pos-
    sess ‘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 docu-
    ment is subject to FOIA release. The identity of litigants and the need for
    the document in litigation may render the document nonprivileged in liti-
    gation. See FTC v. Warner Commc’ns, Inc., 
    742 F.2d 1156
    , 1161 (9th Cir.
    1984) (per curiam).
    16
    As the government’s Vaughn index did not supply sufficient informa-
    tion 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.
    7378                    LAHR v. NTSB
    to the calculations, particular challenges the analysts faced in
    conducting the analysis, and recommendations for agency
    decisionmakers. Importantly, the document explicitly dis-
    cusses refining the simulation’s conclusions based on addi-
    tional 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.
    Our in camera review of the document confirms that it is
    predecisional for the purposes of the deliberative process priv-
    ilege. Although it is dated after the November 1997 CIA ani-
    mation, 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., 
    968 F.2d at 921
    ,
    and conclude that the document was properly withheld pursu-
    ant to Exemption 5.
    b.    Record 28
    The second document (“Record 28”), titled “Analysis of
    Radar Tracking,” is a seventeen-page “[d]raft report concern-
    ing 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 dis-
    LAHR v. NTSB                       7379
    trict court’s description notes, the document “contains conclu-
    sions and thoughts of CIA analysts concerning the viability
    and accuracy of certain radar data, the application of 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, and the document’s appendix, which contains the
    radar 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 doc-
    ument’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 dis-
    cussion and effective decisionmaking. We therefore conclude
    that the agency properly withheld this document under the
    Exemption 5 deliberative process privilege.
    c.   Record 43
    The third document (“Record 43”) is a five-page draft doc-
    ument concerning the CIA’s analysis of eyewitness reports
    about the crash. A cover page preceding the document
    describes it as a “response to allegations of SA [Name]
    regarding C.I.A. analysis.” The document discusses the CIA’s
    assessment of individual eyewitness reports. Handwritten
    comments and edits appear on each page of the document in
    different handwriting styles. The district court upheld the
    withholding of this document in its entirety.
    The document is not dated, and its contents do not clearly
    indicate whether it was created before or after the November
    1997 CIA animation. In either case, we are persuaded that the
    7380                    LAHR v. NTSB
    document is predecisional. Each page of the document is
    labeled “draft,” and several blanks appear in the text where
    data or other information would likely be added. Moreover,
    the document is a response to one person’s criticisms of the
    CIA’s analysis of witness statements, suggesting that it was
    part of an ongoing process of refining the agency’s ultimate
    conclusions about what the witnesses saw. This conclusion is
    bolstered by discussions of previous “drafts” of the CIA’s
    conclusion and by the absence of any reference to a final ver-
    sion or to the termination of the CIA’s investigation into the
    matter.
    [19] Moreover, the record is clearly deliberative. Aside
    from the text of the draft itself—which discusses the CIA ana-
    lysts’ impressions of witness statements and the agency’s take
    on the importance and significance of certain witnesses—the
    handwritten comments on the document, in the words of the
    district court, “unquestionably are part of a give-and-take
    exchange.” We conclude that the document appropriately falls
    within Exemption 5 and was properly withheld in its entirety.
    In sum, we hold that the withheld portions of each of the
    three challenged documents properly fall within the scope of
    Exemption 5.
    C.   Computer Simulation Inputs
    Lahr challenges several of the district court’s rulings
    regarding the computer simulations run by the agencies. We
    begin with some background to facilitate an understanding of
    what is and what is not at issue with regard to those simula-
    tions.
    The agencies used several computer simulation programs in
    their investigation of the crash. The CIA used a program cre-
    ated by the National Security Agency (“NSA”). An NTSB
    employee, Dennis Crider, wrote his own software program.
    The NTSB also used two programs called BREAKUP and
    LAHR v. NTSB                           7381
    BALLISTIC. The agencies’ use of these programs resulted in
    two types of potentially discoverable information: the soft-
    ware programs themselves and the inputs entered into the pro-
    grams by the agencies.
    As to the first category—the programs themselves—there
    is no dispute on appeal between the parties. The district court
    held that the NSA’s computer program fell under an exemp-
    tion, and Lahr does not challenge that conclusion, at least with
    respect to the software itself. The district court ordered the
    NTSB to disclose the Crider program, and the agency does
    not appeal this ruling. Finally, the agency does not contest the
    district court’s order directing the NTSB to search for the
    BALLISTIC and BREAKUP programs and disclose them, if
    found, subject to any applicable FOIA exemptions.
    The only dispute about the computer simulation programs
    arises from the nondisclosure of certain of the inputs into
    these software programs. We discuss below the relevant
    inputs with respect to each program.
    1.    NSA Program
    The CIA withheld the NSA program, citing FOIA Exemp-
    tion 3, which exempts from disclosure matters “specifically
    exempted from disclosure by statute,” 
    5 U.S.C. § 552
    (b)(3),
    and pointing to the National Security Agency Act of 1959.18
    Lahr concedes that the NSA program itself falls within this
    exemption, but argues on appeal that the data inputs are segre-
    18
    Specifically, the CIA cited section 6(a), which provides, in relevant
    part:
    “[N]othing in this Act or any other law . . . shall be construed to
    require the disclosure of the organization or any function of the
    National Security Agency, [or] any information with respect to
    the activities thereof . . . .” National Security Agency Act of
    1959, Pub. L. No. 86-36, § 6(a), 
    73 Stat. 63
    , 64 (codified as
    amended at 
    50 U.S.C. § 402
     note).
    7382                     LAHR v. NTSB
    gable and should be disclosed. The district court concluded
    that Exemption 3 was “applicable to the software in its entire-
    ty.” It is not entirely clear, however, whether this pronounce-
    ment included what Lahr refers to as the programs inputs, but
    the government has not released any of these inputs.
    Under Exemption 3 and the NSA statute, information is
    properly withheld if the agency “describe[s] the intelligence
    activity involved, and . . . show[s] why disclosure of
    requested materials could reveal the nature of that activity.”
    Hayden v. Nat’l Sec. Agency/Cent. Sec. Serv., 
    608 F.2d 1381
    ,
    1391 (D.C. Cir. 1979). The agency need not make a “specific
    showing of potential harm to national security” because “Con-
    gress has already, in enacting the statute, decided that disclo-
    sure of NSA activities is potentially harmful.” 
    Id. at 1390
    .
    The CIA submitted an initial affidavit from a senior NSA
    official stating that “release of the computer program could
    expose how the U.S. Government analyzes the performance
    characteristics of foreign weapons systems that are aerody-
    namic or ballistic.” The district court found this description
    wanting and ordered an in camera affidavit. After reviewing
    that in camera submission, the district court concluded that
    the affidavit sufficiently described how the program, “a
    unique tool for foreign weapons system analysis,” could harm
    the nation if disclosed. The district court then concluded that
    Exemption 3 is applicable.
    [20] After reviewing the NSA’s affidavit in camera, we
    agree with the district court. The affidavit states that the pro-
    gram is used to analyze foreign weapons, and outlines specific
    reasons why release of the program, including the data inputs,
    would put the agency’s sources and methods at risk. We hold
    that the affidavit offers a sufficient explanation. The program
    and the inputs therefore fall within Exemption 3 and were
    properly withheld.
    LAHR v. NTSB                              7383
    2.   Crider Program
    As noted, the district court ordered disclosure of the soft-
    ware for the Crider program, finding that the program itself
    was not deliberative and therefore did not properly fall within
    Exemption 5. Lahr contests the district court’s conclusion that
    the simulation inputs did fall within Exemption 5.19 On
    appeal, Lahr’s sole argument is that a government misconduct
    exception bars the applicability of Exemption 5. As with the
    other documents withheld under the deliberative process priv-
    ilege, we hold that Lahr waived the argument by not raising
    it before the district court. We therefore affirm the district
    court’s conclusion that the inputs properly fell within Exemp-
    tion 5.
    3.   BALLISTIC and BREAKUP Programs
    Lahr made two kinds of requests relating to the BALLIS-
    TIC and BREAKUP programs. First, he sought the programs
    themselves. Second, he requested “[a]ll records of the formu-
    las and data entered into the computer simulations regarding
    the NTSB’s zoom-climb conclusion.” The district court
    ordered the government to search for and disclose, if found,
    the BALLISTIC and BREAKUP programs, subject to any
    applicable exemptions. The district court also ordered the
    government to review its records to locate data inputs for the
    BREAKUP program and disclose that information, if found.
    The government appeals none of these orders.
    The district court also found, however, that the BALLIS-
    TIC program, unlike BREAKUP, was “not used in any man-
    ner in connection with the ‘zoom-climb conclusion,’ ” and
    19
    The district court does not expressly state that it found the simulation
    inputs to be deliberative, but it is clear that it so held from the discussion
    as a whole. Lahr concedes as much in his reply brief, stating that “[t]he
    district court held that the simulation inputs were privileged as delibera-
    tive,” and does not challenge the “deliberative” classification on appeal.
    7384                     LAHR v. NTSB
    thus held that the data inputs for that program did not fall
    within the scope of Lahr’s request. Lahr appeals this ruling,
    arguing that the “flight-path of the debris descending”—
    which he contends the BALLISTIC program modeled—is
    “inextricably a part of the government’s theory that two-thirds
    of the aircraft ascended.”
    The government’s declarant stated that the BREAKUP and
    BALLISTIC programs were not a part of the simulation pro-
    gram for the main wreckage of the aircraft, which modeled
    the ascent of the aircraft after the separation of the nose sec-
    tion. Instead, these programs were used for determination of
    the trajectory of certain pieces of the aircraft other than the
    main section. The declaration provides additional detail for
    the BREAKUP program, indicating that it was used to deter-
    mine the “timing of the nose separating from the aircraft.” On
    that basis, the district court concluded that the BREAKUP
    program was in fact relevant to the zoom-climb conclusion.
    Importantly, it was the timing of the nose separation, not the
    trajectory of certain pieces of the aircraft, that the district
    court found related to the zoom-climb theory. This conclusion
    makes sense, given that the zoom-climb thesis centers on the
    upward trajectory of the main body of the aircraft following
    the nose separation and has little to do with other pieces of the
    plane.
    [21] The district court also determined, on the other hand,
    that the government had demonstrated that the BALLISTIC
    program was not used in connection with the zoom-climb
    conclusion. The government’s declaration supports this con-
    clusion. It states that the only way in which these programs
    were relevant to the flight-path simulation was by providing
    the timing point at which the nose separation occurred.
    According to the declaration, this timing information was
    obtained solely from the BREAKUP program. In light of this
    evidence, we cannot conclude that the district court’s finding
    that the BALLISTIC program did not contribute to the zoom-
    climb theory was clearly erroneous. We therefore affirm the
    LAHR v. NTSB                           7385
    district court’s conclusion that the data inputs to the BALLIS-
    TIC program were not responsive to Lahr’s request.
    D.    Adequacy of Search
    FOIA requires an agency responding to a request to “dem-
    onstrate that it has conducted a search reasonably calculated
    to uncover all relevant documents.” Zemansky v. EPA, 
    767 F.2d 569
    , 571 (9th Cir. 1985) (internal quotation marks omit-
    ted). This showing may be made by “reasonably detailed,
    nonconclusory affidavits submitted in good faith.” 
    Id.
     (inter-
    nal quotation marks omitted).
    The NTSB submitted detailed declarations describing its
    search, which involved a search of the public docket, the
    NTSB’s accident investigation files, and the paper records
    and computer systems of employees responsible for the simu-
    lations and animations of the flight path and for the earlier
    Trajectory Study. The CIA submitted a declaration explaining
    its search, which included a search of automated records and
    a manual search of individual analyst files, local databases,
    email, and desk files. The search was focused on the Director-
    ate of Intelligence, the CIA component determined to be rea-
    sonably likely to have records responsive to Lahr’s request.
    Lahr argues that the government’s searches were inade-
    quate, contending that several produced documents prove the
    existence of additional documents that the agencies failed to
    produce or to describe in the government’s Vaughn index.20
    Lahr cites fourteen documents he claims contain references to
    or suggestions of other documents that should have been pro-
    duced. These references and suggestions fall roughly into two
    20
    As described in the next section, the government must submit an affi-
    davit pursuant to Vaughn, 
    484 F.2d 820
    , identifying the documents with-
    held, the FOIA exemptions claimed, and a particularized explanation of
    why each document falls within the claimed exemption. Lion Raisins v.
    U.S. Dep’t of Agric., 
    354 F.3d 1072
    , 1082 (9th Cir. 2004).
    7386                    LAHR v. NTSB
    categories. In the first category, Lahr points to graphs or
    charts (some of which are handwritten) that attempt to map
    the aircraft’s trajectory, and he argues that the government
    must identify the source of the data used to create them. In the
    second category, Lahr points to references to other specific
    documents. For instance, the CIA disclosed a redacted letter
    to Boeing requesting certain “input variables”; Lahr claims
    that Boeing’s response to this letter was neither disclosed nor
    identified. In another example, pointing to a fax cover sheet
    that references attached documents, Lahr complains that the
    government failed to disclose these attachments or describe
    them in the Vaughn index.
    In evaluating the sufficiency of an agency’s search, “the
    issue to be resolved is not whether there might exist any other
    documents possibly responsive to the request, but rather
    whether the search for those documents was adequate.”
    Zemansky, 
    767 F.2d at 571
     (internal quotation marks omit-
    ted); see also Iturralde v. Comptroller of the Currency, 
    315 F.3d 311
    , 315 (D.C. Cir. 2003) (“[I]t is long settled that the
    failure of an agency to turn up one specific document in its
    search does not alone render a search inadequate.”). For
    example, in Miller v. U.S. Department of State, 
    779 F.2d 1378
    (8th Cir. 1985), Miller attacked the agency’s search by assert-
    ing that he had “repeatedly identified for the State Department
    particular documents which were internally referred to in doc-
    uments released to him. He argues that the fact that these ref-
    erenced documents were not sent to him indicates an
    inadequate search on the part of the State Department.” 
    Id. at 1384
    . The Eighth Circuit rejected this challenge:
    The fact that a document once existed does not mean
    that it now exists; nor does the fact that an agency
    created a document necessarily imply that the
    agency has retained it. Thus, the Department is not
    required by the Act to account for documents which
    the requester has in some way identified if it has
    LAHR v. NTSB                              7387
    made a diligent search for those documents in the
    places in which they might be expected to be found.
    
    Id. at 1385
    ; see also Maynard, 
    986 F.2d at 563-64
    ; SafeCard
    Servs., Inc. v. SEC, 
    926 F.2d 1197
    , 1201 (D.C. Cir. 1991).
    Here, with respect to the data referenced in some of the
    documents, Lahr only speculates that the agencies have
    retained records of the data points used to create the various
    charts. Lahr presents no persuasive evidence however that
    these records now exist and either evaded discovery during
    the agencies’ searches or were purposely and improperly
    withheld. The government’s submissions describe in suffi-
    cient detail the agencies’ search for records such as the data
    used to produce these charts. We are satisfied that the
    searches were reasonably calculated to uncover responsive doc-
    uments.21 The district court found no evidence of either agen-
    cy’s bad faith in conducting their searches, and, aside from his
    general allegations of government cover-up, Lahr presents no
    evidence that would undermine the district court’s conclusion.
    Lahr’s claim that the government’s searches were inade-
    quate because they failed to uncover the records in the second
    category—documents referenced in produced records—also
    fails for similar reasons. As an initial matter, we note that
    there is a mistake or miscommunication with respect to at
    21
    For instance, the NTSB’s declaration stated that one person, Douglas
    Crider, was “responsible for deriving the calculations and/or computations
    of the flight path for TWA flight 800,” and “was the only NTSB staff
    [member] who created a computer simulation of the flight path of the acci-
    dent airplane.” Crider’s declaration describes in detail his several searches
    for records responsive to Lahr’s requests. Douglass Brazy “was the only
    NTSB staff [member] responsible for creating the animations of the flight
    path of TWA flight 800 shown at the public hearing on December 8,
    1997.” In response to Lahr’s requests, Brazy “searched [his] office[ ] and
    the computer systems used to create the animations.” The CIA’s declara-
    tion similarly detailed its search process, which involved supplementing
    the search of the automated records system with a manual search after the
    automated search turned up no responsive records.
    7388                          LAHR v. NTSB
    least one of the documents allegedly not produced by the CIA.22
    In other instances, it is not clear whether the statements cited
    by Lahr actually refer to other documents that ever existed, let
    alone existed at the time of the agencies’ searches.23 With
    respect to the remaining few documents, Lahr’s contentions
    are too speculative to support the conclusion that the agen-
    cies’ searches were inadequate. Even if the documents did
    exist when the agencies conducted their searches, the failure
    to produce or identify a few isolated documents cannot by
    itself prove the searches inadequate.24 Moreover, Lahr makes
    no specific allegations that the government’s searches were
    fraudulent or that it purposely withheld responsive docu-
    ments.
    Finally, Lahr argues that the CIA should have disclosed or
    identified in the Vaughn index a report on TWA Flight 800
    by CIA analyst Randolph Tauss, which was the subject of a
    2003 Washington Post article (the “Tauss Report”). Lahr’s
    argument fails for two reasons. First, as the district court
    found, the document is not responsive to Lahr’s FOIA
    request. Lahr requested “all records upon which this publicly
    released aircraft flight path climb conclusion [as set forth in
    the 1997 video] was based.” The document is a narrative
    22
    In this instance, it appears that the agency either did or intended to
    produce the document Lahr maintains was not disclosed. Lahr points to
    icons indicating Microsoft Word documents attached to an email with the
    subject “Final Reports to the FBI,” but represents that the attachments
    were not disclosed or identified. Yet, according to the Vaughn index for
    this document, the CIA either did or intended to produce the attached doc-
    uments. This document thus offers no support for the claim that the gov-
    ernment’s search was inadequate.
    23
    For example, Lahr complains that one document appears to be missing
    pages because it contains a “Figure 1” and a “Figure 8” but no Figures 2
    through 7. It is possible that pages are missing, but it is more probable that
    the document, which is unsigned and undated, was produced in draft form,
    so that the allegedly missing figures did not yet exist. The document
    includes place holders for future figures, “figure[s] x and x.”
    24
    The government, of course, must produce responsive documents actu-
    ally uncovered in a search, unless one of FOIA’s exemptions applies.
    LAHR v. NTSB                    7389
    recounting of the CIA’s participation in the investigation of
    the crash, including the use of eyewitness reports. Although
    undated, it is clearly a retrospective look at the CIA’s investi-
    gation, not a record on which the CIA’s conclusion of the
    flight path was based. Second, a redacted version of the docu-
    ment now appears in the public record. The names of CIA
    analysts are redacted, but the district court held that these
    names were properly withheld under Exemption 3, and Lahr
    has not challenged this ruling on appeal. As Lahr could not
    get any more of this document than is now available to him,
    the issue is moot.
    [22] In sum, we hold that the agencies’ declarations are suf-
    ficient to support the conclusion that their searches were rea-
    sonably calculated to uncover responsive records and were
    therefore adequate for the purposes of FOIA.
    E.    Vaughn Index
    Government agencies must submit an affidavit pursuant to
    Vaughn, 
    484 F.2d 820
    , “identifying the documents withheld,
    the FOIA exemptions claimed, and a particularized explana-
    tion of why each document falls within the claimed exemp-
    tion.” Lion Raisins, 
    354 F.3d at 1082
    . The Vaughn index
    “must be detailed enough for the district court to make a de
    novo assessment of the government’s claim of exemption.” 
    Id.
    (internal quotation marks omitted). Lahr makes several chal-
    lenges to the sufficiency of the government’s Vaughn index.
    “We review de novo whether the [agency]’s indices and sup-
    porting declarations constitute a sufficient Vaughn index.”
    Citizens Comm’n on Human Rights v. FDA, 
    45 F.3d 1325
    ,
    1328 (9th Cir. 1995).
    1.    Correlation Records
    [23] Lahr first contends that the government’s Vaughn
    index fails to identify records “correlating” various informa-
    tion, such as radar, flight data recorder, and cockpit voice
    7390                         LAHR v. NTSB
    recorder data, with its zoom-climb conclusion. The NTSB’s
    Vaughn index does specifically address records of the correla-
    tion of the zoom-climb calculations with these data, referring
    Lahr to responsive records available in the public docket or
    released in response to the FOIA requests, or stating that
    responsive documents were withheld under Exemption 5.
    Lahr maintains that the government’s “Vaughn index should
    identify the records of the correlations it claims to have per-
    formed.” We cannot discern from this articulation what addi-
    tional clarification about the available information Lahr seeks;
    most likely, he is complaining not about the Vaughn index,
    but about the NTSB’s failure to release additional records of
    this variety. In any event, we conclude that the government’s
    Vaughn index sufficiently identifies correlation records.
    2.   CIA Simulation
    Lahr next contends that the government’s Vaughn index
    fails to identify the dates on which the government ran the
    NSA simulation program and whether it was the CIA or the
    NSA that actually ran it, arguing that he made a specific
    request for that information.25 Specifically, Lahr claims that
    the CIA produced two printouts of the simulation with alleg-
    edly different results—one a set of graphical charts bearing
    the date “5/16/97” and the other, data tables bearing two
    dates, “3/98” and “3/15/04.” Lahr faults the government’s
    Vaughn index for failing to state whether both records were
    generated from the NSA’s simulation program.
    [24] The documents produced and the Vaughn index suffi-
    ciently respond to Lahr’s request. As to the first document,
    there is nothing to suggest that the graphical charts were not
    created on the date specified. According to the government’s
    25
    Lahr contends that the relevant request was for “all records reflecting
    whether or not the NTSB conducted the computer simulations in-house,
    and, if not, all records of when, where, and by whom the computer simula-
    tions were performed.”
    LAHR v. NTSB                               7391
    Vaughn index, an email accompanying the charts identifies
    the CIA agents involved in creating the document, but their
    names have been redacted under Exemption 3, a redaction
    Lahr does not dispute. The government’s description plainly
    states that the graphs are depictions of the results of certain
    aspects of the trajectory simulation program, and the email so
    confirms. As to the second, it is true that the document con-
    tains two handwritten dates, but the “3/98” date is preceded
    by “dated =,” suggesting that the tables report data and results
    from the simulation run at that time.26 The document also con-
    tains the redacted name of a CIA analyst involved in the sim-
    ulation, as the Vaughn index indicates. The document
    explicitly says that the data tables are the product of the tra-
    jectory simulation program. Viewed together, the documents
    and the Vaughn index are sufficient to answer Lahr’s chal-
    lenge.
    3.   Affiants’ Personal Knowledge
    As a general matter, “[a]n affidavit from an agency
    employee responsible for supervising a FOIA search is all that
    is needed to satisfy” the personal knowledge requirement of
    Federal Rule of Civil Procedure 56(e). Carney v. U.S. Dep’t
    of Justice, 
    19 F.3d 807
    , 814 (2d Cir. 1994); see also Maynard,
    
    986 F.2d at 559-60
    . Lahr argues that, although agency affida-
    vits under FOIA generally may be made based on information
    available to the affiant in her official capacity, here, because
    he has proven fraud, the CIA should be required to produce
    affidavits based only on personal knowledge. Lahr contends
    that the CIA omitted certain key documents in its submission
    to the district court and released documents using a confusing
    numbering system that complicated his efforts at organizing
    the CIA’s responses.
    26
    The computer printout itself contains the “3/15/04” date that is also
    handwritten on the front page of the document. The text of the printout,
    however, also reads, “Boeing proprietary information removed.” In con-
    text, this most likely indicates that the printout was reproduced at this later
    date, in response to Lahr’s FOIA request.
    7392                         LAHR v. NTSB
    Lahr properly points out that an agency’s proven miscon-
    duct can undermine the presumed veracity of its affidavits.
    See, e.g., Jones v. FBI, 
    41 F.3d 238
    , 243, 249 (6th Cir. 1994).
    He points to no authority, however, that proof of fraud obvi-
    ates the general rule applicable in FOIA cases that an affiant
    need not have personally conducted the search. Furthermore,
    Lahr’s complaints about the CIA’s handling of his FOIA
    requests might suggest some bureaucratic mismanagement,
    but they do not prove fraud in that regard.
    [25] We hold that the government’s Vaughn index was suf-
    ficient.
    ***
    For the foregoing reasons, the district court’s decision is
    AFFIRMED in part, REVERSED in part, and REMANDED
    for proceedings consistent with this opinion.27
    27
    The district court concluded that, as it ordered production of twenty-
    six out of thirty-two contested records, Lahr “substantially prevailed”
    within the meaning of the statute. Our decision reversing the district
    court’s order that the government release names redacted in eleven docu-
    ments requires that the district court reconsider its conclusion that Lahr
    “substantially prevailed.” Our reversal on these eleven documents also
    could alter the district court’s assessment of Lahr’s entitlement to fees and
    the calculation of any fees awarded. We therefore remand for reconsidera-
    tion of the fee award.
    

Document Info

Docket Number: 06-56717

Filed Date: 6/22/2009

Precedential Status: Precedential

Modified Date: 10/14/2015

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