Powell v. United States Bureau of Prisons

Opinion for the Court filed by Circuit Judge WALD.

Dissenting opinion filed by Circuit Judge SENTELLE.

WALD, Circuit Judge:

Thomas Powell appeals from a district court decision granting the Bureau of Prisons’ motion for summary judgment and adopting a magistrate’s recommendation that Powell’s Freedom of Information Act request for disclosure of the “Central Inmate Monitoring Manual” be denied. Events subsequent to the district court’s decision cast doubt on that court’s finding concerning the “segregability” of the requested document. Accordingly, we remand this matter to the. district court for further consideration in light of these new developments.

I. Background

The Bureau of Prisons (“Bureau”) maintains a “Central Inmate Monitoring” (“CIM”) program which establishes special procedures designed, in the words of a Bureau official, “to monitor and control the transfer, temporary release and community-based activities of certain , inmates who present special concerns for management.” These inmates include persons who due to “their prior record, previous community occupation, known behavior or offense characteristics” are “vulnerable to confrontation, assault or retaliation.” In late 1988, Powell, then an inmate in the CIM program, submitted to the Bureau a request pursuant to the Freedom of Information Act, 5 U.S.C. § 552 (“FOIA”), seeking disclosure of, inter alia, the Central Inmate Monitoring Manual. According to a declaration by a Bureau official (the “Katsel Declaration”), the Manual contains “[detailed instructions for the implementation of the Central Inmate Monitoring System.” In response, the Bureau released only a public “program statement” and claimed that the Manual itself was, in its entirety, exempt from disclosure under 5 U.S.C. § 552(b)(2) — the so-called FOIA “Exemption 2” — which exempts from disclosure documents “related solely to the internal personnel rules and practices of an agency.”

Powell subsequently filed suit pro se and in forma pauperis in the District Court for the District of Columbia, seeking review of the Bureau’s decision. The matter was referred to a federal magistrate, who reviewed the Bureau’s motion for summary judgment and filed a report and recommendation. Based on the Katsel Declaration, which addressed the function of the CIM program and the contents of the Manual, the magistrate concluded that the material was exempt under Exemption 2. More precisely, she found that the Manual passed the 2-prong test set forth in Crooker v. Bureau of Alcohol, Tobacco & Firearms, 670 F.2d 1051 (D.C.Cir.1981) (en banc), which asks (1) whether the document is “predominantly internal” and (2) whether disclosure would significantly risk circumvention of the law or agency regulations.

Powell then filed an objection to the magistrate’s report, stating only that he “objects to the entire Report and Recomendation [sic] of the Magistrate and requests the District Judge to conduct a de novo review of the proceedings.” The district court noted that Powell’s objection had not complied with Local Rule 504(b), which requires that “objections shall specifically identify the portions of the proposed findings and recommendations to which objection is made,” and accordingly reviewed the magistrate’s report only for clear error. Finding no such error, the district court issued an order adopting the Magistrate’s recommendation.

Powell appealed, and this court subsequently appointed an amicus curiae to prepare briefs and to argue in support of Powell. Amicus brought to this court’s attention the fact that the Bureau, in the context of another FOIA action, had in fact already released portions of the Manual. See Oliva v. Bureau of Prisons, No. 84 Civ. 5741 (JFK) (S.D.N.Y.1986), 1986 WL 2959. Upon notification of this fact, the Bureau disclosed most of these same portions of the Manual to Powell, the amicus, and this court.

II. Analysis

Powell first argues that the district court erred in employing a clear-error standard to review the magistrate’s report and contends that the court should have reviewed that report de novo. The district court used a clear-error standard because it found that Powell had failed to comply with Local Rule 504(b), which requires that objections to magistrates’ reports be specifically stated. Although he acknowledges that, in most cases, Powell’s generic objections would fail to satisfy the local rule, the amicus contends that, under the particular circumstances of the case before us, the district court’s restrictive standard of review was in error.

The amicus emphasizes three conditions militating in favor of a de novo standard of review by the district court. First, he notes that the magistrate’s report was brief (five pages) and focused on a single issue — the wholly exempt status of one 119-page document. Given the narrow focus of the report, he contends, the use of a general objection in no way undermines the purpose of the local rule in focusing the district court’s attention on the core of the dispute. Moreover, the amicus reminds, us, the pleadings of a pro se petitioner (here a prisoner at the time) are to be read with generosity. See Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976). Finally, the amicus maintains that Powell (like most FOIA requesters) operated at a disadvantage in filing his objection: he knew only what the affidavit said about the actual contents of the document and thus was in no position to offer anything more than the most general objections to the magistrate’s report.

Powell’s excuse has some appeal, but we need not decide at this time the merits of this claim (or even Powell’s ultimate challenge to the magistrate’s application of the Crooker test). Instead, because the release of portions of the Manual after the docketing of this appeal has called into serious question the adequacy of the magistrate’s findings (as adopted by the district court) about the segregability of the Manual, we remand this case to the district court for further findings on that issue.

The FOIA requires that “[a]ny reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt.” 5 U.S.C. § 552(b) (emphasis supplied). Accordingly, this court has long recognized that agencies and courts are obliged to determine whether nonexempt material can reasonably be segregated from exempt material. See, e.g., Mead Data Central, Inc. v. Department of the Air Force, 566 F.2d 242, 259-62 (D.C.Cir. 1977). In this case, the magistrate never made an express finding as to segregability but rather simply noted with approval that the “[defendant avers that meaningful segregation of the material in the Manual is not feasible.” We have some doubt whether that statement satisfies the lower court’s duty under the FOIA. But in any case, we find that the issue of segregability. must be reconsidered because the defendant’s averment itself (on which the magistrate relied) has been shown to be infirm, and thus cannot provide a sufficient basis for a finding of nonsegregability.

The Katsel declaration is infirm in at least two ways. First, although in this action the Bureau contends that the entire Manual is exempt from FOIA disclosure, the Bureau has, in earlier litigation, “conceded that Chapter 2 [of the Manual] does not qualify for exemption from disclosure.” Oliva, 1986 WL at 2959. Moreover, as the subsequent release of substantial portions of the Manual demonstrates, some segregation of the Manual is “feasible” — contrary to the Bureau’s blanket statement that it was not. In the light of this new evidence, the district court’s segregability analysis must be revisited and we remand this matter to the district court for reconsideration.

We recognize, of course, that this court is not required to consider evidence not contained in the record. See Goland v. Central Intelligence Agency, 607 F.2d 339, 370-71 (D.C.Cir.1978) (reh’g), cert. denied, 445 U.S. 927, 100 S.Ct. 1312, 63 L.Ed.2d 759 (1980). However, in this case, several unusual circumstances militate in favor of such consideration and ultimately in favor of a remand. First, the Oliva decision, citation of which prompted the Bureau to release portions of the Manual in this case, was only available through a computerized research service. This fact is particularly significant because the appellant was, until recently, a federal prisoner and a pro se litigant with limited access to legal materials. Second, although in many cases a party uncovering new evidence may seek relief in the district court pursuant to Fed. R.Civ.P. 60(b), such relief appears, in this case, to be time-barred. Indeed, the filing period for Rule 60(b) motions had run even before the Bureau released portions of the Manual (and thus cast doubt on its segregability claims). Finally, and most significantly, the Bureau’s release of segregated portions of the document “go[es] to the heart of the contested issue” — namely, the segregability of the Manual. In re AOV Industries, Inc., 797 F.2d 1004, 1013 (D.C. Cir.1986). In sum, given the equities involved and the extraordinary circumstances presented in this case, “[w]e believe that a remand .... will best serve the interests of justice and fairness” and the purposes of the FOIA. Id.

We note as well that in this case the question of segregability cannot be wholly divorced from the question whether the remainder of the document is exempt from disclosure under Exemption 2. On remand, the Bureau may, of course, disclose more of the segregated document, or provide additional evidence concerning segregability, or the district court, in light of the disclosure of portions of the Manual, may decide to perform an in camera review. Only then will it be appropriate for that court to make its final determination on whether, under Crooker, the undisclosed portions of the Manual are “predominantly internal” and whether disclosure would significantly risk circumvention of the law. Accordingly, it would be premature for us as well to reach and review the substantive determinations of the district court on the applicability of Exemption 2.

It is so ordered.

. The court thanks Mr. Penniman for his able assistance as amicus curiae in this appeal.

. In Oliva, the district court ordered the Bureau to release Chapter 2, most of Chapter 3, and section 1000 of the Manual. In this case, the Bureau has released the first two items, but refused to release section 1000.

. Local Rule 504(b) provides:

Any party may file written objections to the magistrate’s proposed findings and recommendations issued under paragraph (a) within ten days after being served with a copy thereof. The objections shall specifically identify the portions of the proposed findings and recommendations to which objection is made and the basis for the objection.

Cf. 28 U.S.C. § 636(b)(1) ("A judge of the court shall make a de novo determination of those portions of the [magistrate’s] report or specified proposed findings or recommendations to which objection is made.”).

. Cf. Church of Scientology v. Department of the Army, 611 F.2d 738, 744 (9th Cir.1979) (“[I]t is error for a district court to simply approve the withholding of an entire document without entering a finding on segregability, or the lack thereof.”).

. Cf. Military Audit Project v. Casey, 656 F.2d 724 (D.C.Cir.1981):

[I]t is now well established that summary judgment on the basis of such agency affidavits is warranted if the affidavits describe the documents and the justifications ... with reasonably specific detail,, demonstrate that the information ... logically falls within the claimed exemption and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.

Id. at 738 (emphasis supplied).

.The Bureau’s discretionary disclosure of excerpts of Chapter 3 of the Manual, see Oliva, 1986 WL at 2959, also casts doubt on the accuracy of certain claims in the Katsel Declaration— for example, the assertion that "whether separately or pieced together ... it is of the utmost importance that the information [in the Manual] not be disclosed.” However, because we remand this matter for further proceedings, we need not assess the district court’s ultimate determination that, based on the Katsel Declaration, the entire Manual was exempt from disclosure under the FOIA.

. See In re AOV Industries, Inc., 797 F.2d 1004, 1013 (D.C.Cir.1986) (“[DJetermining the significance of the new evidence requires factual inquiries, a duty strictly within the province of the district court.”).

. That rule provides, in relevant part:

On motion and upon such terms as are just, the court may relieve a party ... from a final judgment ... for the following reasons ... (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial____ [Such] motion shall be made ... not more than one year after the judgment, order or proceeding was entered or taken.

Fed.R.Civ.P. 60(b) (emphasis supplied).

. Thus this case differs from Goland v. Central Intelligence Agency, 607 F.2d 339 (D.C.Cir.), cert. denied, 445 U.S. 927, 100 S.Ct. 1312, 63 L.Ed.2d 759 (1980), upon which the dissent relies heavily. In Goland, an initial opinion by this court affirmed a district court finding that the CIA had conducted a thorough search in response to a FOIA request. After that opinion was released, the CIA revealed that it had uncovered additional documents. On rehearing, this court declined to vacate its initial judgment, stating that the subsequent discovery of documents was “not inconsistent with ... [its initial finding] that the search was thorough.” Id. at 372. In this case, however, the release of segregated portions of the Manual clearly is inconsistent with the Bureau’s claim (and the district court’s implication) that the Manual was not segregable.

Our dissenting colleague’s reliance on Center for Auto Safety v. EPA, 731 F.2d 16 (D.C.Cir. 1984), seems similarly misplaced. In that case, this court reviewed, under an abuse-of-discretion standard, a district court’s decision not to undertake in camera review of the contested documents. Although Congress subsequently released some of the documents, this court refused to reverse the district court’s decision and emphasized that Congress granted trial judges broad discretion in their use of in camera review. In so doing, the court noted that “[evidence that became available after the district court’s decision can of course have no bearing upon whether that decision was an abuse of discretion." Id. at 24 n. 9 (emphasis supplied). In this case we review not a trial court’s exercise of discretion but rather its substantive determination of segregability, pursuant to the FOIA. Although a discretionary decision "must be made on the basis of the data then before the court," id., the substantive soundness of a factual determination required by statute may, in certain circumstances, be called into question by subsequent events.

Moreover, in both Goland and Center for Auto Safety the “new evidence” was reconcilable with the district court’s findings — that, in Goland, the CIA had conducted a thorough search, and that, in Center for Auto Safety, the trial court did not abuse its discretion. In this case, the intervening events directly contradict the Bureau’s affidavit: if the Manual is not segregable, how did the Bureau segregate it?

. “[Any] court of appellate jurisdiction may affirm, modify, vacate, set aside or reverse any judgment ... and may remand the cause ... as may be just under the circumstances.” 28 U.S.C. § 2106.