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Scherer v. Kelley


decided: September 8, 1978.


Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 76 C 1053 - John Powers Crowley, Judge.

Before Swygert and Tone, Circuit Judges, and Jameson, Senior District Judge.*fn1

Author: Swygert

Plaintiff Anthony J. Scherer, Jr. brought this action pursuant to the Freedom of Information Act, 5 U.S.C. § 552, to compel four federal agencies to release documents allegedly relevant to him. The issue on appeal is whether the district court erred when, following an In camera examination, it found that the documents were properly withheld under certain exemptions contained in section 552(b) of the Act.*fn2

While the outcome of Scherer's appeal hinges on this court's interpretation of the relevant exemptions of the Act and on our review of the district court's application of those exemptions to the documents in question, it is first necessary to consider a jurisdictional question that surfaced on appeal. At issue is the Government's contention that Scherer properly appealed only that portion of the district court's finding that pertains to the FBI. The Government thereby argues that this court lacks jurisdiction to consider those documents compiled by the other three agencies. To understand this dispute, the somewhat complicated procedural history of the case must be set forth in detail.


Between May and August 1975 Scherer contacted the FBI, the Customs Service, the Treasury Department Bureau of Alcohol, Tobacco and Firearms, and the Secret Service and requested that each agency provide him with all the documents in its files which concerned him.*fn3 After a series of correspondence with Scherer, each agency compiled the requested material and examined it to determine whether any portion should be excised because of its inclusion within one of the sections of the Freedom of Information Act which provided for an exemption from disclosure. After each agency deleted what it believed to be exempted material, it forwarded the remaining documents to Scherer with an explanation of the action it had taken.*fn4

After unsuccessfully appealing each agency's action through administrative channels, Scherer, acting Pro se, commenced the following action in the United States District Court for the Northern District of Illinois, attempting to obtain those materials the agencies had withheld. On March 18, 1978 Scherer filed a complaint against the Customs Service. That action was assigned cause no. 76 C 1052. At the same time Scherer filed a complaint against the FBI. That action was assigned cause no. 76 C 1053. Each case was assigned to a different district judge and was initially treated as an entirely separate case. On October 28, cause no. 76 C 1053 (with the FBI as defendant) was reassigned to the judge who was at the time hearing cause no. 76 C 1052 (the Customs Service case). No formal order of consolidation was made, however, to officially combine the two cases and, therefore, the two case numbers continued to coexist. In an attempt to eliminate confusion, the district judge, who was now assigned both cases, allowed Scherer to amend his complaint which had originally named only the Customs Service as defendant, I. e., cause no. 76 C 1052. By such amendment Scherer added the FBI, the Bureau of Alcohol, Tobacco and Firearms, and the Secret Service as defendants so that now, cause no. 76 C 1052 included all four agencies. Cause no. 76 C 1053 remained intact with only the FBI as defendant.

After examining the documents from the four agencies, the district court entered the following order on the record of Both cause numbers:

The Court has examined all of the documents presented by the four government agencies defending this action (Bureau of Customs, the Federal Bureau of Investigation, the Secret Service Division of the Department of the Treasury, and the Bureau of Alcohol, Tobacco and Firearms) and finds after an In camera inspection that those documents withheld from the plaintiff were properly exempt from disclosure under the exemptions claimed pursuant to 5 USC 552(b). The plaintiff is not entitled to an index of the withheld documents nor to his costs in the case. Therefore, this cause will be dismissed with prejudice.

After his motion for reconsideration was denied, Scherer, still acting Pro se, filed a notice of appeal. In the caption of that notice Scherer listed the defendants as the "Federal Bureau of Investigation, Et al.," and labelled the notice as appealing "No. 76 C 1053," although that case number named only the one agency defendant, the FBI.

After filing his notice of appeal Scherer obtained counsel. However, nothing was done to resolve the confusion which still remains because of the two cause numbers. In addition, only the record in no. 76 C 1053, pertaining to the FBI, was originally transferred to this court. After an order of this court dated December 19, 1977, some, but apparently not all, of the documents in the district court record of no. 76 C 1052 were transferred to this court as a supplement to the record on appeal of no. 76 C 1053. Just prior to oral argument, however, the Government moved to supplement the record further with the affidavits of the representatives for the Customs Service and the Bureau of Alcohol, Tobacco and Firearms which were part of the record in no. 76 C 1052 before the district court. The Government stated that while it still contends that only the FBI is involved in this appeal, if this court determines that the documents from all four agencies must be considered, such consideration must be conducted in light of the affidavits detailing those exemptions upon which each agency relied. This court by order of April 10 deferred ruling upon the Government's motion until after oral argument. We turn now to a consideration of that motion in light of the jurisdictional snarl with which it is entangled.


Rule 3 of the Federal Rules of Appellate Procedure sets forth those procedures an appellant must follow in order to transfer his case from a federal district court to a court of appeals.*fn5 Although those requirements have been made as burdenless as possible while continuing to balance a losing party's need for appellate review against the prevailing party's right to seek repose in his favorable judgment, unintentional mistakes are occasionally made in the content of a notice of appeal. Such mistakes are most prevalent where, as in the instant case, an appellant is acting pro se. For this reason notices of appeal are entitled to a liberal construction where the intent of the appellant is apparent and the adverse party is not prejudiced. See Foman v. Davis, 371 U.S. 178, 181, 83 S. Ct. 227, 9 L. Ed. 2d 222 (1962).

In this case, Scherer clearly intended to appeal the district court's finding as it pertained to all four agencies. He captioned the defendants as the "Federal Bureau of Investigation, Et al." which he could reasonably have believed was sufficient to include the four agencies.*fn6 Additionally, it was reasonable for Scherer to believe that the "et al." would alert the Government attorney that Scherer intended to seek appellate review of all documents concerning him. Since Scherer had intended to secure all government documents from the beginning of his long administrative and judicial course, there is no reason to believe that he intended to stray from that route at the appellate level.

What is perhaps more significant is the wording of the judgment to which Scherer referred in his notice of appeal. Even though that judgment of dismissal was entered on the record of cause no. 76 C 1053 (the single FBI defendant), it specifically referred to the case as that in which "the four government agencies (were) defending (the) action . . . ." Significantly, Rule 3 states that a party must "designate the judgment, order, or part thereof appealed from . . .," while making no reference to an individual case number. The obvious reason for the wording of the rule is that its purpose is to ensure that each party is aware of the judgment in dispute rather than a number which when separated from the judgment to which it refers, is meaningless.

We think that the discussion in Crump v. Hill, 104 F.2d 36, 37-38 (5th Cir. 1939), of former Rule 73 of the Federal Rules of Civil Procedure, the identically worded predecessor to Rule 3 with which we are concerned, is especially applicable to this case.

It would we think be a harking back to formalistic rigorism of an earlier and outmoded time, as well as a travesty upon justice, to hold the extremely simple procedure required by the Rule is itself a kind of Mumbo Jumbo, and that the failure to comply formalistically with it defeats substantial rights.

Cf. Great Lakes Stamp & Mfg. v. Reese Finer Foods, Inc., 402 F.2d 346 (7th Cir. 1968) (notice of appeal referring to initial judgment instead of amended final judgment held sufficient). The "substantial right" which would in this case be defeated is Scherer's right to appellate review in his claims under the Freedom of Information act. Since the purpose of the Act is to ensure disclosure and not to aid in suppression of information pertaining to a private party, Department of the Air Force v. Rose, 425 U.S. 352, 361, 96 S. Ct. 1592, 48 L. Ed. 2d 11 (1976), we cannot allow the frustration of the clear intent of the Act because of such a technical error as assigning an incorrect number to a notice of appeal when a party has clearly manifested his intention by correctly referring to the judgment he disputes.

Because we find that all four agencies are properly before this court, we grant the Government's motion to supplement the record. Furthermore, the entire record in cause no. 76 C 1052 has now been supplemented to that of no. 76 C 1053 so that this court may have the benefit of all documents which may be pertinent to either party's claims on appeal. By so doing both the Government and Scherer will be equally protected against any prejudice which might have accompanied the prior confusion created by the two case numbers.


We turn now to the propriety of the district court's finding that those documents withheld in their entirety and the excised portions of those released by the four agencies fell within the sections of the Act exempting their disclosure. The gravamen of Scherer's contention on appeal is that the district court could not responsibly have made such a finding because the agencies had not satisfied their burdens of specifically detailing those exemptions upon which they relied. Scherer alleges that each agency failed to provide the court with an itemized index so that the court could cross-reference the excised portions of the material with the corresponding exemption claimed. Without such an index, he argues, the court could not have determined whether each individual file portion had been properly deleted.

Scherer's argument is sound so far as it accurately restates the requirements placed upon an agency that is attempting to sustain its action under the Act in a De novo review in district court. 5 U.S.C. § 552(a)(4)(B). See also Cuneo v. Schlesinger, 157 U.S.App.D.C. 368, 484 F.2d 1086 (1973), Cert. denied, 415 U.S. 977, 94 S. Ct. 1564, 39 L. Ed. 2d 873 (1974). However, we find that the FBI, the Customs Service, and the Bureau of Alcohol, Tobacco and Firearms all provided the court with a sufficiently detailed means of cross-reference. Those three agencies submitted sworn affidavits which comprehensively set forth the exemptions upon which each agency had relied when it excised portions of its file pertaining to Scherer and set forth the reasons underlying their use.

The first exemption relied upon was section 552(b)(2) which allows deletions for internal administrative markings, rules, and practices. The exemption is claimed here for administrative markings such as file numbers, initials, signature and mail routing stamps, references to interagency transfers, and data processing references. As was determined in Maroscia v. Levi, 569 F.2d 1000, 1002 (7th Cir. 1977), in which identical claims were made for the use of section 552(b)(2), these are matters "in which the public interest is minimal and which fall within the ambit of Exemption 2."

The other categories of exemptions are sections 552(b)(7) ((C), (D), (E), and (F)) which protect a citizen's privacy, the identity of an informant, investigative techniques, and the safety of law enforcement personnel. As was also discussed in Maroscia, supra at 1002, and was implicit in each of the affidavits submitted by the three agencies, in a case such as Scherer's where a file contains "investigatory records compiled for law enforcement purposes," most of the information has been "acquired under an express assurance of confidentiality or in circumstances where such an assurance may reasonably be inferred." This court has previously described why such information falls within the exemption of sections 552(b)(7)(C) or (D).

It is proper that such material be withheld in order not only to protect those citizens who voluntarily provide law enforcement agencies with information, but also to insure that such persons remain willing to provide such information in the future. Furthermore, references to third parties may be properly deleted to protect their privacy and to minimize the public exposure or possible harassment of those persons mentioned in the files. Their claim to privacy under Exemption 7(C) outweighs the minimal public interest which would be served by release of their names.

Maroscia v. Levi, 569 F.2d at 1002. In light of the serious allegations against Scherer, the need to protect those persons who informed the agencies about Scherer's activities cannot be questioned. Furthermore, in the event any similar investigation might be reinstituted, the willingness of these or other reliable informants should be ensured. The sections protecting both the identities and the privacy of the informants, therefore clearly apply.*fn7

The final claimed exemption, section 552(b)(7)(F), may be used to withhold documents for the protection of law enforcement personnel. Since law enforcement agents have been involved throughout Scherer's case and their need for protection exists as noted above, section 552(b)(7)(F) is also applicable to those documents recording the Scherer investigation.

After listing the applicable exemption sections, the three affidavits (in the FBI case a second affidavit) present detailed descriptions of how those exemptions can be cross-referenced to the documents. The FBI affidavit explains a color code utilizing yellow and red markings while the other two affidavits rely on either dates (for letters or memoranda) or content descriptions. Even though these affidavits would in themselves be sufficient, both the FBI and the Bureau of Alcohol, Tobacco and Firearms individually labelled and indexed the material. Scherer's argument that the district court could not have been able to cross-reference exemptions and deletions is, therefore, without merit as far as it pertains to the FBI, the Customs Service, and the Bureau of Alcohol, Tobacco and Firearms. Furthermore, this court has examined those three agencies' documents in light of the applied exemptions. We agree with the district court's finding that those documents and portions were legally exempt under the Act.*fn8

The circumstances surrounding the Secret Service documents, however, require explanation. The Deputy Director of the Secret Service supplied the court an affidavit which was attached to the documents and which certified only that those documents comprised the complete Scherer file. A letter was then sent directly to the district judge conducting the In camera examination. That letter contained a detailed, color coded index which would have enabled the judge to cross-reference the deletions with the exemption sections relied upon by the Secret Service. In addition, the letter comprehensively set forth the justification for the use of those sections in Scherer's case.

At oral argument the Government admirably conceded that it could not state unequivocally that the district court possessed the letter's index at the time it had examined the documents. That uncertainty, however, was resolved during our In camera inspection. The Secret Service documents were delivered sealed to this court with the district judge's stamped signature across that seal. The packet contained the documents with the Deputy Director's letter attached. It is obvious, therefore, that the district judge would not have included the letter with the documents had he not used it as an index during his inspection.

Although we do not condone the irregular procedure used in this case by the Secret Service, we do not believe the letter clearly sufficed as an index. Furthermore, after reviewing the documents we hold that the district court's finding that the portions deleted were legally exempt under the Act was correct.*fn9

Scherer's contention that he should have been awarded his attorney's fees and litigation costs is without merit. Under section 552(a)(4)(E) a court may award such costs where a "complainant has substantially prevailed" in his claim. Scherer has not "substantially prevailed" nor does his case present any unusual circumstances which might allow awarding of costs. We also find no support in the record for Scherer's allegation that the district judge misdirected him or was in any way improper in the manner he adjudicated this case. Rather, we find that the district judge did an admirable job in attempting to resolve the confusion created by the Pro se filings.

The judgment of the district court is affirmed.

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