FOIA exemption. See Mobil Oil Corp. v. EPA, 879 F.2d 698, 700 (9th Cir. 1989); Afshar v. Department of State, 226 U.S. App. D.C. 388, 702 F.2d 1125, 1133 (D.C. Cir. 1983); Mehl v. EPA, 797 F. Supp. 43, 47 (D.D.C. 1991). "The existence and scope of a waiver depends upon the scope of the disclosure." Mehl, 797 F. Supp. at 47. Plaintiffs asserting waiver of an applicable FOIA exemption generally are required to show "'that the withheld information has already been specifically revealed to the public and that it appears to duplicate that being withheld.'" Mobil, 879 F.2d at 701 (emphasis in original); Mehl, 797 F. Supp. at 47; United States Student Ass'n v. CIA, 620 F. Supp. 565, 571 (D.D.C. 1985); see also Public Citizen, 11 F.3d 198, 201 (plaintiff bears initial burden of "pointing to specific information in the public domain that duplicates that being withheld," and that burden is not met by "simply showing that similar information in the public domain has been released"). Specificity is the touchstone in the waiver inquiry, and thus, neither general discussions of topics nor partial disclosures of information constitute waiver of an otherwise valid FOIA exemption. Public Citizen v. Department of State, 787 F. Supp. 12, 14 (D.D.C. 1992), aff'd, 304 U.S. App. D.C. 154, 11 F.3d 198 (D.C. Cir. 1993); Mehl, 797 F. Supp. at 47.
Plaintiffs claim that the statements made at the Press Conference waived Exemption 7(A) as to substantial portions of the facts and conclusions contained in the Reports. According to plaintiffs, the FBI and Park Police officials provided specific facts about each agency's findings at the Press Conference. In camera review, plaintiffs maintain, is required to determine which of the facts and conclusions disclosed at the Press Conference are contained in the Reports.
As plaintiffs point out, the standard for deciding whether in camera review is appropriate depends on whether it is for purposes of determining if a particular FOIA exemption applies or whether it is for purposes of assessing if an applicable FOIA exemption has been waived. In camera review is the exception, and not the rule, when the plaintiff seeks such review merely to determine if a claimed exemption applies. See Local 3, I.B.E.W. AFL-CIO v. National Labor Relations Board, 845 F.2d 1177 (2d Cir. 1988) (in camera review unnecessary because agency's detailed affidavit was sufficient to provide basis for court's ruling that documents were exempt from disclosure under Exemption 6 and Exemption 5); Doherty v. United States Department of Justice, 775 F.2d 49, 52-53 (2d Cir. 1985) (district court "should restrain its discretion to order in camera review" where the "Government's affidavits on their face indicate that the documents withheld logically fall within the claimed exemption and there is no doubt as to agency good faith"). In contrast, courts are more likely to conduct in camera review in those cases where the plaintiff asserts that an otherwise applicable FOIA exemption has been waived. E.g., Public Citizen, 782 F. Supp. 144, 145; see also Mobil, 879 F.2d at 702-04 (appears that appellate court, if not district court, reviewed the contested documents).
Originally, plaintiffs sought in camera review of both the Park Police Report and the FBI Report. DOJ's disclosure of 91 pages of the Park Police Report, along with Independent Counsel Fiske's and Independent Counsel Starr's statements that the portions of the Park Police Report dealing with Mr. Foster's death have been released and that only those portions dealing with the still on-going investigations have been retained, renders in camera review of this Report needless. Plaintiffs nevertheless urge that I conduct in camera review of the FBI Report, which covers the investigation of the handling of documents in Mr. Foster's White House office immediately following his death. I decline to do so. In light of Independent Counsel Starr's declaration that further disclosure of the Reports would interfere with his investigation of the handling of Mr. Foster's papers, I need not conduct in camera review to find, as I do find, that the FBI Report falls squarely within Exemption 7(A). Moreover, I find that plaintiff has not set forth a sufficient, specific prima facie case that the limited, general and cursory discussions during the Press Conference of the White House handling of the Foster papers constituted a waiver of the 7(A) Exemption.
Therefore, I find no reasonable basis to conclude that an in camera review of the Reports is necessary.
II. Exemption 7(C)
Although DOJ has released a transcript of the Note, and made a photocopy of the Note available for viewing in DOJ's Washington, D.C. offices, DOJ seeks to withhold the Note under Exemption 7(C), which protects "records or information compiled for law enforcement purposes . . . to the extent that their production . . . could reasonably be expected to constitute an unwarranted invasion of personal privacy." DOJ claims that the Foster family's privacy interests outweigh any incremental public interest that would be served by disclosure of the Note, and thus, summary judgment that the Note is exempt from disclosure under Exemption 7(C) is warranted. DOJ has submitted the declaration of Mr. Foster's widow and Acting Associate Attorney General William Bryson in support of its motion for summary judgment on the Exemption 7(C) issue.
Exemption 7(C) "reflects Congress' desire to preserve confidentiality and personal privacy." Hale v. United States Dep't of Justice, 973 F.2d 894, 900 (10th Cir. 1992). Exemption 7(C) is, therefore, applicable only if the invasion of privacy that would result from release of the information outweighs the public interest in disclosure. United States Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 762, 103 L. Ed. 2d 774, 109 S. Ct. 1468 (1989).
The public has a substantial interest in viewing the Note. The matters discussed in the Note touched on several events of public interest, including the controversy involving the White House travel office, and implicated government agencies and employees in misconduct. Stip. Facts. P 40. However, the public not only has an interest in the contents of the Note but also in viewing a photocopy of the actual document. According to statements made at the Press Conference, the Note was torn up by someone, and some of the pieces are missing. Stip. Facts P 54. The missing pieces, the "look" of the handwriting, and the significance to be drawn therefrom, are, as plaintiffs note, matters of public concern. DOJ itself has implicitly recognized the public interest by making a photocopy of the Note available for viewing. I disagree with DOJ's assertion that it has fulfilled its duty to the public by making the Note available for viewing in its Washington, D.C. office. Interested persons should not be required to make a time-consuming and costly trip to the capitol in order to view the Note.
I do not doubt that making photocopies of the Note available on a wider scale may spark a new round of media attention toward the Foster family, and I sympathize with them for the pain they will bear as a result of any renewed scrutiny. I am not convinced, however, that any such renewed interest will be so substantial as to outweigh the important public interest in viewing the Note.
For its contention that the Note falls within Exemption 7(C), DOJ relies on New York Times v. NASA, 782 F. Supp. 628 (D.D.C. 1991), which held that the audiotape of Challenger astronauts recorded immediately before their death was exempt from disclosure, even though NASA had published a transcript of the tape, since "exposure to the voice of a beloved family member immediately prior to that family member's death" would cause Challenger families great pain and would not contribute to the public's understanding of the operations of government. In both the present case and New York Times, the relevant government agency produced a transcript of the deceased's words, and thereby claimed that the original -- the audiotape in New York Times and the Note in the present case -- is exempt from production. This case is distinguishable from New York Times, however, because the Foster family's privacy interest in the Note is weaker than the deceased Challenger astronauts' families' interest in the audiotape, and because the public interest in disclosure of the Note is stronger than it was in the audiotape. In New York Times, the court held that "how the astronauts said what they did, the very sound of the astronauts' words" was such an "intimate detail" that their families could protect the tape from disclosure. New York Times, 782 F. Supp. at 631. Although Mr. Foster's suicide note may have been intensely personal, the written word is qualitatively different from an audio recording of the last words of the astronauts. As for the public interest in disclosure, the New York Times court found that the background noises and voice inflections contained in the tape would not "'contribute significantly to public understanding of the operations or activities of the government," the purpose underlying FOIA. New York Times, 782 F. Supp. at 632 (quoting United States Dep't of Justice v. Reporters Comm., 489 U.S. 749, 775, 103 L. Ed. 2d 774, 109 S. Ct. 1468 (1989). In the present case, however, the missing pieces of the Note, and therefore the physical look of the Note, are an integral part of the public's interest.
Nor is DOJ's position for nondisclosure supported by Katz v. National Archives & Records Administration, 862 F. Supp. 476 (D.D.C. 1994) (privacy interests of Kennedy family outweighed public interest in autopsy reports despite prior unauthorized disclosure of photographs of x-rays contained in the autopsy). This is not a case of partial disclosure or unauthorized prior disclosure of withheld documents.
DOJ has not met its burden of demonstrating that Exemption 7(C) applies to the Note, and its motion for summary judgment on this ground is denied and plaintiffs' cross-motion for summary judgment enjoining DOJ from withholding the Note is granted.
For the reasons discussed above, defendant's cross-motion for summary judgment pursuant to Fed. R. Civ. P. 56 to dismiss those portions of the Complaint addressed to the disclosure of the Park Police and FBI Reports is granted. Plaintiffs' motion for summary judgment is partially granted in that the Department of Justice is enjoined from withholding circulation of copies of the Foster "Note." The Clerk of the Court is directed to enter judgment on the Complaint in accordance with this Opinion.
Dated: New York, New York
January 5, 1995