Lahr v. Ntsb

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.