Associated Retired Aviation Professionals

GRAEME SEPHTON,

Plaintiff, Appellant, v.

FEDERAL BUREAU OF INVESTIGATION,

Defendant, Appellee.


APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Frank H. Freedman, Senior U.S. District Judge]

[Hon. Michael A. Ponsor, U.S. District Judge]

Selya, Lynch and Lipez, Circuit Judges.

Caroline Carrithers for appellant.

Karen L. Goodwin, Assistant U.S. Attorney, with whom Michael J.
Sullivan, U.S. Attorney, was on the brief, for appellee.

October 24, 2003

PER CURIAM. The issue before us is the adequacy of the Federal Bureau
of Investigation's search for documents pursuant to a Freedom of
Information Act request. For the reasons explained herein, we vacate
the summary judgment entered for the Federal Bureau of Investigation
and remand for further proceedings.

The appellant, Graeme Sephton, seeks to compel the FBI to produce
documents related to the agency's investigation of the 1996 crash of
Trans World Airlines Flight 800. Sephton, a board member of an
organization seeking further information about the causes of the crash,
filed an information request with the FBI under the Freedom of
Information Act (FOIA), 5 U.S.C. 552, in September 1998. This request
focused on information regarding foreign objects removed from the
bodies of victims of the crash and any related forensic analysis.
Specifically, Sephton stated in his FOIA request that the National
Transportation Safety Board (NTSB) "reported that all foreign
material/objects removed from the victims['] bodies were initially
given to the FBI for further analysis." Sephton went on to request a

schedule or listing of such items given to the FBI, and the results of
analysis of those objects. Most importantly the identification of the
origin of all such material in relation to the 747 aircraft's layout
(assuming such material did originate from the 747 and its contents)
and the victim's supposed location. Was any of this material of unknown
origin. Please forward to me all documents that deal with the following
data about each foreign object: size, weight, condition and general
description, and all other analytic results including composition.

The FBI refused to release the requested documents, stating that the
release might interfere with its ongoing investigation. In November,
Sephton appealed this decision to the Department of Justice. Ten months
later, the Department of Justice notified Sephton that the FBI was
processing the request and would release responsive documents.

The FBI initially identified six responsive documents totaling
twenty-one pages, and then later identified a responsive seven-page
attachment to one of the six documents. By October 2000, the FBI had
released all twenty-eight pages of responsive material. The contents of
these seven documents can be summarized as follows. (1)

Document 1 (two pages): summary of contact with NTSB representatives
Document 2 (three pages): communication that a specialist in
correlating injuries and/or causes of death of victims as they apply to
aircraft cabin/structural damage has been retained, and request for
documentation and samples
Document 3 (seven pages): a summary of documents subpoenaed by a
federal grand jury
Document 4 (two pages): preliminary statistical analysis of victims'
injuries and seat damage
Document 5 (four pages): medical/forensic group chairman's factual
report of investigation
Document 6 (three pages): summary of victim injury analysis patterns
from the specialist referenced in Document 3
Document 7 (seven pages): medical/forensic investigation analysis
report including seating chart indicating victims with foreign bodies


Because the FBI determined that releasing certain information in these
documents would compromise the privacy of FBI personnel, others
involved in the investigation of Flight 800, and the family members of
the victims, it redacted that information pursuant to 5 U.S.C.
552(b)(7)(C) ("Exemption 7"). (2) The FBI also redacted all substantive
parts of Document 3 after determining that they were exempt from
disclosure under FOIA, 5 U.S.C. 552(b)(3) and Rule 6(e) of the
Federal Rules of Criminal Procedure ("Exemption 3"). (3)

Along with copies of these released materials, the FBI submitted the
fifteen page declaration of Scott A. Hodes, Acting Chief of the
Litigation Unit, Freedom of Information-Privacy Acts Section, Office of
Public and Congressional Affairs at FBI headquarters in Washington,
D.C. The Hodes declaration, inter alia, explained that the FBI uses a
"Central Records System (CRS) to maintain all pertinent information
which it has acquired in the course of fulfilling mandated law
enforcement responsibilities," and that the

General Indices ... consist of an index on various subjects, including
the names of individuals and organizations. Only information considered
pertinent, relevant or essential for future retrieval is indexed.
Without a 'key' (index) to this mass of information, information
essential to ongoing investigations could not be readily retrieved....
Therefore, the General Indices to the CFS files are the means by which
the FBI can determine what retrievable information, if any, the FBI may
have in its CRS files on a particular subject matter.

After explaining the filing and indexing system in greater detail,
Hodes went on to state that

[r]ecords responsive to plaintiff's requests were located by a search
of the CRS maintained at [the New York] field office. One main file was
located. This file is identified as 265A-NY-259028-SubFF and is
captioned Unsubs(s); Explosion of TWA Flight 800, July 17, 1996; Acts
of Terrorism-International Terrorists. This case involves the
investigation of the July 17, 1996 explosion of TWA flight 800.

This file is referred to in the Hodes declaration and in our discussion
as the "relevant main file."

With cross-motions for summary judgment pending, Senior District Judge
Frank H. Freedman, to whom this case originally was assigned, denied
Sephton's motion and granted the FBI's. Specifically, Judge Freedman
held that the FBI properly withheld information under Exemption 3.
Relying on the Hodes declaration, he also found that the FBI conducted
an adequate search. (4) Sephton v. F.B.I., No. 00-30121-FHF, slip op.
(D. Mass. Aug. 29, 2001). Sephton appealed both rulings to this court.

The FBI then surrendered its claim based on grand jury secrecy and
agreed to release Document 3, previously redacted in substantive part
under Exemption 3. However, the FBI requested that we remand the case
so that the district court could determine whether the document's
release would constitute an unwarranted invasion of privacy of the
victims' family members. Although we granted that request, the parties
reached agreement regarding the release of Document 3 and the
privacy-related redactions before the district court considered the
case. Consequently, Sephton renewed his appeal to us on the sole
remaining issue: the adequacy of the FBI's search pursuant to Sephton's
FOIA request.

In addressing that issue, we noted in an order entered on October 16,
2002, that the Hodes declaration "does not detail the method and
mechanism by which this relevant main file was examined. Instead, it
states without elaboration that '[t]his file was reviewed for documents
pertinent to plaintiff's request for certain information.'" Order of
Court, Oct. 16, 2002, pg. 1-2, 1st Cir. ("Remand Order"). Because the
Hodes declaration failed to describe the method by which the FBI
examined the relevant main file, we remanded to the district court,
while retaining jurisdiction, for the limited purpose of requiring the
FBI to supplement the record with an affidavit from an appropriate
agency official addressing these items: "(1) the approximate size of
the relevant file, and (2) the method used to search this file for
records responsive to plaintiff's requests." We specified that the
proceedings on remand were to be completed "as expeditiously as
possible, and in all events within sixty days of the date of this
order."

On December 12, 2002, the FBI filed the affidavit of Christine Kiefer,
the Acting Chief of the Litigation Unit, Freedom of Information-Privacy
Acts Section, Records Management Division at FBI Headquarters in
Washington, D.C. Along with the affidavit, the FBI also filed a
supplemental memorandum in support of its motion for summary judgment.
Six weeks later, Sephton countered with an opposition to the FBI's
supplemental memorandum and a motion to include new evidence that
Sephton claimed further demonstrated the inadequacy of the FBI's
search. In response, the FBI moved for two extensions of time to
evaluate the new evidence and to explore settlement of the entire case.
Without formally ruling on its authority to accept and consider the new
evidence, argumentation, or motions, the district court allowed the
extensions in light of the ongoing settlement negotiations. On April
25, 2003, the FBI notified the district court that the parties had
failed to reach a settlement and requested another extension to reply
to Sephton's new evidence. This motion was granted. On May 9, the FBI
filed a reply to Sephton's opposition to the FBI's motion for summary
judgment.

At some point subsequent to our Remand Order, presumably as part of
settlement negotiations, the FBI released five hundred pages of new
material responsive to Sephton's FOIA request. These five hundred pages
represent an eighteen-fold increase in the number of responsive pages
produced by the FBI prior to that time. Although these five hundred
pages were never docketed with the district court, and thus to our
knowledge have never been reviewed by any court, we are aware of these
materials because they are referenced in Sephton's June 18 request for
additional time to review them. At the same time, Sephton requested an
extension of time to reply to the FBI's May 9 submission. The district
court granted the assented to motion, allowing Sephton until August 1
to review the new material and submit his additional memorandum.

Two days later, however, having become cognizant of the parties'
several submissions to the district court, we issued an order
requesting that the district court advise us within thirty days if it
wished to affirm its original decision or have us relinquish
jurisdiction so that it could vacate its prior judgment and conduct any
proceedings it deemed necessary. Because of the recent extension of
time granted to Sephton, the district court asked for an extension as
well, and we enlarged the time for the district court's response to
September 2, 2003. During that time, Sephton filed his second
opposition to the FBI's supplemental memorandum of law supporting its
motion for summary judgment, and the FBI responded with a reply
memorandum on August 13.

Tragically and unexpectedly, Judge Freedman passed away on August 22,
2003. Three days later, this case was reassigned to District Judge
Michael A. Ponsor, who immediately reviewed the entire case. Judge
Ponsor concluded that because we retained jurisdiction in our Remand
Order, and because that order was for the limited purpose of
supplementing the record with an additional affidavit from the FBI, the
district court lacked jurisdiction to consider the parties' subsequent
filings. Having determined that all of the subsequent filings beyond
the Kiefer declaration were not properly part of the record, Judge
Ponsor then analyzed the adequacy of the FBI's search based solely on
the record up to and including the Kiefer declaration. On that basis,
Judge Ponsor requested that we affirm Judge Freedman's original
decision, holding that the FBI's conducted an adequate FOIA search, and
forwarded the Kiefer declaration to us.

Judge Ponsor correctly interpreted the scope of our remand order. We
commend him for addressing this case so promptly under trying
circumstances. At the same time, we now recognize the wisdom of Judge
Freedman's willingness to permit filings beyond the supplemental FBI
affidavit and the settlement negotiations. That process has produced
five hundred additional pages of documents responsive to Sephton's FOIA
request, after the FBI's insistence that the twenty-eight pages of
documents released previously were the product of an adequate search
fully compliant with the requirements of the FOIA. Under these
circumstances, we think it is only prudent to relinquish jurisdiction
entirely, vacate the judgment previously entered, and remand this case
to the district court to allow it to conduct whatever proceedings it
deems necessary to resolve the FOIA issues raised by Sephton. If either
party wishes to pursue additional appeals following the completion of
proceedings in the district court, such appeals will have to be filed
anew. (5)

Judgement vacated. Remanded for further proceedings in the district
court. Costs to appellant.

1. In an effort to provide a helpful account of the history of this
case, we have attempted to summarize the released documents after a
careful review of the record. We acknowledge that some inexactitude may
exist in this description, but any such inexactitude does not affect in
any way our disposition of the appeal.

2. FOIA provides that mandatory disclosure of documents does not apply,
inter alia, 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...."
5 U.S.C. 552(b)(7)(C)(2000).

3. FOIA also provides that mandatory disclosure of documents does not
apply to matters that are "specifically exempted from disclosure by
statute...." 5 U.S.C. 552(b)(3)(2000). This rule, in conjunction with
Rule 6(e) of the Federal Rules of Criminal Procedure, which bars public
disclosure of matters before a grand jury, creates an exemption for
documents that would reveal the nature of information before a federal
grand jury. See Church of Scientology v. U.S. Dep't of Justice, 30 F.3d
224, 235 (1st Cir. 1994)(stating that Rule 6(e) qualifies as a
statutory exemption from disclosure under Exemption 3).

4. Sephton did not challenge the propriety of the application of
Exemption 7.

5. Sephton filed another appeal from the district court's order of
August 28, 2003. (First Circuit Court of Appeals Docket No. 03-2407)
Since we retained jurisdiction in our Remand Order, this second appeal
is unnecessary. We therefore direct the Clerk of Court to dismiss
Sephton's second appeal, No. 03-2407.


     

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