United States Court of Appeals 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 25, 2011 Decided June 28, 2011 

No. 09-5428 

ANTHONY C. ROTH, ON BEHALF OF LESTER L. BOWER, JR., 

APPELLANT

v. 

UNITED STATES DEPARTMENT OF JUSTICE, 

APPELLEE

Appeal from the United States District Court 

for the District of Columbia 

(No. 1:08-cv-00822) 

Peter Buscemi argued the cause for appellant. With him 

on the briefs were Grace E. Speights and Anthony C. Roth. 

Rhonda C. Fields, Assistant U.S. Attorney, argued the 

cause for appellee. With her on the brief were Ronald C. 

Machen, Jr., U.S. Attorney, and R. Craig Lawrence, Assistant 

U.S. Attorney. 

Before: ROGERS, TATEL, and KAVANAUGH, Circuit 

Judges. 

Opinion for the Court filed by Circuit Judge TATEL. 
2 

Opinion concurring in part and dissenting in part filed by 

Circuit Judge KAVANAUGH. 

TATEL, Circuit Judge: In this Freedom of Information 

Act case, a Texas death-row inmate seeks information from 

the Federal Bureau of Investigation that he alleges might 

corroborate his claim that four other men actually committed 

the quadruple homicide for which he was convicted. The FBI 

provided a so-called Glomar response, neither confirming nor 

denying whether it has records regarding three of the four 

men (the fourth has died). The FBI defends this response 

under FOIA Exemption 7(C), which permits agencies to 

withhold information contained in law-enforcement records to 

protect against unwarranted invasions of personal privacy. 

Applying the Supreme Court’s decision in National Archives 

& Records Administration v. Favish, we conclude that (1) the 

public has an interest in knowing whether the federal 

government is withholding information that could corroborate 

a death-row inmate’s claim of innocence, and (2) that interest 

outweighs the three men’s privacy interest in having the FBI 

not disclose whether it possesses any information linking 

them to the murders. We thus reverse the district court’s 

approval of the FBI’s Glomar response. And with only minor 

exceptions, we affirm the district court’s rejection of 

appellant’s other arguments. 

 

I. 

Appellant Anthony Roth represents Lester Leroy Bower, 

Jr., who is on death row in Texas for four murders committed 

over a quarter century ago. In January 2008, Roth filed FOIA 

requests with the FBI and the Executive Office for United 

States Attorneys seeking information concerning the FBI’s 

investigation of the murders and about four individuals who 

Bower claims are the real killers. Although Bower was 

prosecuted by the state of Texas, the FBI, believing that the 
3 

murders implicated various federal laws, jointly investigated 

the crime with local authorities. An Assistant United States 

Attorney served as a member of the prosecution team. 

“FOIA requires every federal agency, upon request, to 

make ‘promptly available to any person’ any ‘records’ so long 

as the request ‘reasonably describes such records.’ ” 

Assassination Archives & Research Ctr. v. CIA, 334 F.3d 55, 

57 (D.C. Cir. 2003) (quoting 5 U.S.C. § 552(a)(3)(A)). 

Although the Act “reflects a general philosophy of full agency 

disclosure,” it “provides for several exemptions under which 

an agency may deny disclosure of the requested records.” Id.

(internal quotation marks omitted). The agency “bears the 

burden of establishing the applicability” of any exemption it 

invokes, and “even if [the] agency establishes an exemption, 

it must nonetheless disclose all reasonably segregable, 

nonexempt portions of the requested record(s).” Id. at 57–58; 

see also 5 U.S.C. § 552(a)(4)(B), (b). In this case, we must 

consider whether the FBI properly withheld information 

responsive to Roth’s FOIA requests under three statutory 

exemptions: Exemption 6, covering “personnel and medical 

files and similar files the disclosure of which would constitute 

a clearly unwarranted invasion of personal privacy”; 

Exemption 7(C), covering “records or information compiled 

for law enforcement purposes,” the disclosure of which 

“could reasonably be expected to constitute an unwarranted 

invasion of personal privacy”; and Exemption 7(D), covering 

(among other things) records or information “compiled by 

criminal law enforcement authorit[ies] in the course of a 

criminal investigation” that “could reasonably be expected to 

disclose the identity of a confidential source” or “information 

furnished by” such a source. 5 U.S.C. § 552(b)(6), (7)(C)–

(D). 
4 

Understanding the FOIA issues in this case requires fairly 

detailed knowledge of the facts underlying Bower’s capitalmurder convictions. On the evening of October 8, 1983, law 

enforcement authorities discovered the bodies of Bobby Glen 

Tate, Ronald Mays, Philip Good, and Jerry Mack Brown at 

Tate’s ranch near Sherman, Texas. Bower v. State, 769 

S.W.2d 887, 889–90 (Tex. Crim. App. 1989), overruled in 

part by Heitman v. State, 815 S.W.2d 681 (Tex. Crim. App. 

1991). From the victims’ bodies, investigators retrieved 

eleven .22-caliber, subsonic, hollow-point bullets 

manufactured by Julio Fiocchi. Id. at 890. Tests run on those 

bullets and their shell casings indicated that “the shots were 

fired from either an AR-7 .22 caliber rifle, a Ruger .22 caliber 

semi-automatic pistol, or a High Standard .22 caliber semiautomatic pistol.” Id. Markings on the bullets and other 

forensic evidence revealed that a silencer had been used. Id. 

The victims’ bodies were found in a hangar where Tate 

stored ultralight aircraft. Id. at 889. Although an ultralight 

owned by another person was in the hangar when the bodies 

were discovered, Tate’s ultralight was missing. Id. at 889–90. 

Before the shootings, Philip Good had been assisting Tate in 

his effort to sell his ultralight. Id. at 889. Good’s widow 

testified that shortly before the murders, Good had told her 

that he thought he had found a buyer and that the buyer was 

planning to pick up Tate’s ultralight on October 8. Id. 

Records showed that Bower made three calls to the Good 

residence in the days leading up to the murders. Id. at 891. 

Although Bower admitted calling to inquire about an 

advertisement Good had placed in Glider Rider magazine, he 

told FBI investigators that “he had never bought an ultra light, 

that he had not been in Sherman on the day of the murders, 

that he had not met Philip Good on the day of the murders and 

had never met him in person, that he did not know where the 
5 

missing ultra light was, and that he had never seen the missing 

ultra light.” Id. at 891–92. Bower also admitted to owning a 

number of firearms but denied owning a .22-caliber handgun. 

Id. at 891. At the time, Bower was licensed to sell firearms 

and ammunition. Id. at 892. 

Searching Bower’s home, law enforcement officers 

found, among other things, an instruction manual for a Ruger 

.22-caliber pistol; information on silencers; a form letter from 

Catawba Enterprises, a company that dealt primarily in 

silencer parts; and a record of the firearms that Bower had 

acquired and sold, which showed that he had purchased a 

Ruger RST-6 .22-caliber pistol on February 12, 1982, and 

then sold it to himself on March 1, 1982. Id. In Bower’s 

garage, authorities discovered two ultralight tires and rims 

with the name “Tate” scratched into each rim. Id. They also 

seized ultralight tubing that later tests revealed bore a 

fingerprint from one of the murder victims. Id. In addition, 

authorities discovered a pair of rubber boots and a blue nylon 

bag, both of which were stained with blood. Id. at 892–93. 

The investigation also revealed that the .22-caliber 

subsonic Julio Fiocchi bullets used in the murders were 

“specialty item[s]” not sold “over the counter” at sportinggoods stores. Id. at 893. Records of Bingham Limited, the 

sole United States distributor of Julio Fiocchi ammunition, 

indicated that the company “had shipped three boxes of 

Fiocchi .22 long rifle sub-sonic hollow point ammunition to 

[Bower] on February 12, 1982 and five more boxes on 

December 10, 1982.” Id. 

Bower was convicted of the four murders and sentenced 

to death in April 1984. After Bower’s efforts to overturn his 

sentence and conviction on direct appeal and through a state 

habeas petition failed, he filed a federal habeas petition under 
6 

28 U.S.C. § 2254 in the U.S. District Court for the Eastern 

District of Texas. See Bower v. Quarterman, 497 F.3d 459, 

465–66 (5th Cir. 2007). Among other things, Bower argued 

that his trial attorney was ineffective and that the government 

had withheld material, exculpatory evidence in violation of its 

obligations under Brady v. Maryland, 373 U.S. 83, 87 (1963). 

In June 2000, the district court held an evidentiary 

hearing on Bower’s claim of ineffective assistance of counsel 

at which Bower testified—something he had not done at his 

criminal trial. Bower v. Director, Tex. Dep’t of Crim. Justice–

Inst’l Div., No. 1:92cv182, slip op. at 1, 25, 28–29 (E.D. Tex. 

Sept. 6, 2002) (“Bower Habeas Op.”). Bower explained that 

he contacted Philip Good in the fall of 1983 because he was 

interested in purchasing an ultralight airplane. Id. at 25. Good 

then introduced Bower to Tate, who wanted to sell his 

ultralight. Id. at 25–27. According to Bower, he met Good and 

Tate at Tate’s ranch around 3:00 p.m. on October 8. Id. at 26. 

After agreeing to buy the ultralight, Bower gave Tate $3000 

and wrote an IOU for $1500 on a business card. Id. at 26–27. 

Bower testified that he then left the ranch with the ultralight at 

approximately 4:00 p.m. Id. at 27. 

Bower’s testimony in the habeas proceedings 

contradicted his earlier statements to FBI investigators—that 

he had not gone to Sherman to meet Good and had not 

purchased Tate’s ultralight. Bower, 769 S.W.2d at 891–92. 

Nevertheless, Roth—Bower’s attorney and appellant in this 

case—contends that “[c]ritical components of . . . Bower’s 

account are corroborated” by evidence in the prosecution’s 

investigative files. Appellant’s Opening Br. 6. Specifically, he 

points to evidence that soon after the shootings, Tate’s widow 

called the local sheriff’s office to ask whether “$3,000 or a 

large check” had been found on Tate’s body, as well as to 

evidence that the medical examiner discovered a single 
7 

business card, later lost by law enforcement officials, in 

Tate’s shirt pocket. Id. at 6–7. Furthermore, and central to this 

case, two witnesses have come forward since Bower’s 

criminal trial and provided sworn statements indicating that 

the murders were committed not by Bower, but instead by 

four Oklahoma drug dealers: Brett (“Bear”) Leckie, Chestley 

(“Ches”) Galen Gordon, Lynn Langford, and Robert 

(“Rocky”) T. Ford. See id. at 7–10; Compl. ¶ 12. The first 

witness, Langford’s girlfriend at the time of the murders, 

testified at the Eastern District of Texas habeas hearing that 

she had driven with Langford from Hillsboro, Texas, to 

Lexington, Oklahoma, the day after the shootings. Bower

Habeas Op., No. 1:92cv182, slip op. at 23. According to the 

ex-girlfriend, when the couple passed through Sherman, 

Langford “got down low in the seat and stated that he had 

killed some people the day before in Sherman in a drug deal 

that went bad.” Id. About a week later, the witness testified, 

“she overheard [Langford] and another man named ‘Ches’ 

bragging about the killings and how they had stolen an 

ultralight.” Id. According to Roth, the second witness, 

Leckie’s widow, has stated in a sworn affidavit that she 

overheard various conversations from late 1983 through 1985 

in which “her husband and his friends, including Ches and 

Lynn, talk[ed] about four men who were shot at an airplane 

hangar in Sherman, Texas over a drug deal that went bad.” 

Appellant’s Opening Br. 9. 

After the district court denied Bower’s habeas petition, 

Bower filed a motion to alter or amend the judgment, arguing 

(among other things) that the court had failed to fully address 

his Brady claim. In particular, Bower contended that 

information produced by the FBI in response to FOIA 

requests filed by his habeas attorneys demonstrated that 

prosecutors in his criminal case had withheld material, 

exculpatory evidence. Bower’s habeas attorneys first filed a 
8 

FOIA request with the FBI in 1989. The FBI responded in 

1990 by releasing approximately 850 pages of documents, 

many “extensively redacted.” Roth Decl. ¶ 5. In November 

1999, Bower’s attorneys filed another request, which they 

subsequently asked the FBI to expedite after the Eastern 

District of Texas granted Bower’s request for an evidentiary 

hearing. But the FBI failed to release any responsive materials 

until January 31, 2001—after the district court had concluded 

its evidentiary hearing but before it had issued its decision 

denying Bower’s habeas petition. The FBI’s 2001 FOIA 

response included approximately 1500 pages, far more than 

the 850 released in 1990, and many of the previously released 

documents reflected fewer redactions. According to Roth, the 

FBI’s 2001 FOIA response revealed five types of material, 

exculpatory evidence not previously made available to 

Bower’s trial or habeas counsel: 

1. Tate was involved in illegal gambling—in particular, 

“cock fighting”—and drug dealing and may have been 

killed because “he had used the proceeds from drug 

sales to pay off his gambling debts instead of repaying 

his drug source.” Appellant’s Opening Br. 13. 

2. An FBI agent was able to find and purchase Julio 

Fiocchi .22-caliber subsonic ammunition at a Dallas 

gun show, thus undermining the prosecution’s 

portrayal of the ammunition as “rare,” “unusual,” 

“exotic,” and “unique.” Appellant’s Reply Br. 19–20 

(internal quotation marks omitted). 

3. Although FBI agents “had collected samples of 

[Fiocchi] ammunition from the same lot number as 

had been sold to . . . Bower . . . in order to compare 

the lead bullets’ ‘elemental analysis’ with the bullets 

taken from the victims’ bodies,” the Assistant United 
9 

States Attorney working on the case had a 

“discussion” with FBI agents on April 11, 1984, 

following which the FBI terminated its effort before it 

had completed its analysis of the bullets. Appellant’s 

Opening Br. 14. 

4. Contrary to the prosecution’s claim that Fiocchi .22-

caliber subsonic ammunition has but one use—killing 

people—“[n]otes of FBI interviews with persons who 

had purchased [the ammunition] disclosed that the 

ammunition was used” for various legitimate 

purposes, including reducing noise in indoor shooting 

ranges, teaching shooting to people who do not like 

loud noises, and eliminating “varmint[s] in a 

populated area without alarming the entire 

neighborhood.” Id. at 14–15. 

5. Catawba silencer tubes for Ruger pistols “were readily 

available from many sources,” thus “undermin[ing] 

the prosecution’s effort to ascribe sinister significance 

to the fact that . . . Bower had once placed an order 

with Catawba.” Id. at 15. 

In ruling on Bower’s motion to alter or amend the 

judgment, the district court concluded that Bower had failed 

to show that his Brady rights had been violated. The court 

observed that Bower’s trial attorney admitted that he was 

aware of rumors that “some of the victims were engaged in 

nefarious activities such as cock fighting and drug dealing.” 

Bower v. Director, Tex. Dep’t of Crim. Justice–Inst’l Div., 

No. 92cv182, slip op. at 14–15 (E.D. Tex. June 13, 2003). As 

a result, the district court concluded, the FBI’s failure to 

disclose the evidence its agents collected regarding Tate’s 

illicit activities “constitute[d] harmless error.” Id. at 15. The 

district court also determined that (1) the fact that the 
10 

ammunition used to commit the murders was available at gun 

shows did “not necessarily mean that it [was] not rare and/or 

exotic”; (2) the FBI’s failure to disclose that its investigation 

revealed that subsonic ammunition could be used for 

legitimate purposes was “harmless error” because “Bower’s 

counsel testified that he did not find Bower’s purchase of 

subsonic ammunition suspicious,” thus indicating that he 

“was able to think of non-criminal uses for the ammunition”; 

and (3) evidence that “other individuals were able, after being 

requested by the F.B.I., to obtain silencer tubes through mail 

order does not establish that many other people in [the 

Sherman area] actually owned such weaponry at the time the 

killings occurred.” Id. at 13–14. The district court never 

discussed the evidence indicating that just as Bower’s trial 

was beginning, the FBI called off a planned comparison 

between the bullets extracted from the victims’ bodies and 

bullets from the same lot number as those purchased by 

Bower. 

Although the district court denied Bower’s habeas 

petition, it granted Bower a certificate of appealability on his 

claim of ineffective assistance of counsel and his Brady claim. 

See 28 U.S.C. § 2253(c) (providing that a state prisoner may 

not appeal a district court’s denial of his habeas petition 

without first obtaining a “certificate of appealability,” which 

may be issued “only if the applicant has made a substantial 

showing of the denial of a constitutional right”). The Fifth 

Circuit affirmed. With respect to Bower’s Brady claim, the 

Fifth Circuit determined that “[n]one of the evidence argued 

to support . . . [the] claim, in the form of over 2,000 pages of 

FBI files, is exculpatory; that is, none of the evidence is 

sufficient to ‘undermine confidence in the jury’s verdict.’ ” 

Bower, 497 F.3d at 477 (quoting Spence v. Johnson, 80 F.3d 

989, 999 (5th Cir. 1996)). The court emphasized that the FBI 

documents contained no “evidence linking the murders to the 
11 

victims’ alleged illegal activity.” Id. Instead, the documents 

merely summarized investigative theories of which Bower’s 

counsel “was aware . . . but didn’t extensively pursue 

himself.” Id. The court also observed that the documents’ 

references to individuals who had purchased Fiocchi 

ammunition for legitimate purposes did not “directly 

contradict the state’s evidence that the ammunition was not 

widely available.” Id. Ultimately, the court concluded that 

although the documents disclosed in the FBI’s 2001 FOIA 

response “provid[ed] some support for an alternative theory of 

the crime, a theory which Bower’s counsel was well aware of, 

none of the FBI files contradict[ed] the circumstantial 

evidence used by the state to convict Bower.” Id.

Accordingly, the court concluded that the withheld evidence 

was not material and thus that the FBI’s failure to disclose the 

evidence to Bower’s trial attorney did not violate Brady. Id. 

A Texas state court stayed Bower’s execution in July 

2008 and subsequently granted his motion for DNA testing of 

certain crime scene evidence. Those state court proceedings 

remain pending, and no execution date is currently scheduled. 

Roth submitted the FOIA requests at issue in this case in 

January 2008. Since the parties no longer dispute any issues 

regarding the request Roth addressed to the Executive Office 

for United States Attorneys, we shall focus exclusively on 

Roth’s two requests for documents from the FBI. Roth v. U.S. 

Dep’t of Justice, 656 F. Supp. 2d 153, 159 n.3 (D.D.C. 2009). 

In one request Roth sought “any and all records” relating to 

Jerry Buckner, Bower’s trial attorney, and the four individuals 

who Bower alleges were the real killers—Leckie, Gordon, 

Langford, and Ford. The second request sought documents 

from particular FBI files containing information regarding its 

investigation of the 1983 murders. See id. at 157 n.2. 
12 

The FBI gave a “Glomar response” to Roth’s first 

request. Id. at 166. In such a response the government neither 

confirms nor denies the existence of the requested records. 

The response is named for the Hughes Glomar Explorer, a 

ship used in a classified Central Intelligence Agency project 

“to raise a sunken Soviet submarine from the floor of the 

Pacific Ocean to recover the missiles, codes, and 

communications equipment onboard for analysis by United 

States military and intelligence experts.” Phillippi v. CIA, 655 

F.2d 1325, 1327 (D.C. Cir. 1981); see also Military Audit 

Project v. Casey, 656 F.2d 724, 728–29 (D.C. Cir. 1981); 

Matthew Aid, Project Azorian: The CIA’s Declassified 

History of the Glomar Explorer, Nat’l Security Archive, 

http://www.gwu.edu/~nsarchiv/nukevault/ebb305/index.htm 

(Feb. 12, 2010) (providing a link to a partially declassified 

article about the Hughes Glomar Explorer from the fall 1985 

edition of the CIA’s in-house journal Studies in Intelligence). 

Responding to a journalist’s FOIA request for records 

regarding the CIA’s alleged efforts to convince media outlets 

not to make public what they had learned about the Hughes 

Glomar Explorer, the Agency refused to either confirm or 

deny whether it had such records. See Phillippi v. CIA, 546 

F.2d 1009, 1011–12 (D.C. Cir. 1976). Thus the term “Glomar

response” entered the FOIA lexicon. In the case before us, the 

FBI refused to confirm or deny whether its files contained 

information regarding the five individuals named in Roth’s 

request without proof that they were either dead or had 

consented to the release of the information. Roth, 656 F. 

Supp. 2d at 158. In support of this Glomar response, the FBI 

relied on FOIA Exemptions 6 and 7(C), which, as explained 

above, exempt certain government documents from disclosure 

to protect the privacy interests of third parties. See 5 U.S.C. § 

552(b)(6), (7)(C). The FBI later processed Roth’s request 

regarding Leckie after Roth provided evidence that Leckie 

had died, and Roth has dropped his request for information 
13 

regarding Jerry Buckner. Roth, 656 F. Supp. 2d at 158. Thus, 

only the FBI’s Glomar responses regarding Gordon, 

Langford, and Ford remain at issue. Id. 

With respect to Roth’s second FOIA request—for records 

contained in particular FBI files—only 62 pages of documents 

are still at issue, 36 of which the FBI has withheld in their 

entirety and 26 of which have been released but contain 

redactions that Roth claims the FBI has failed to adequately 

justify. According to the FBI, it has properly withheld 

information contained in these documents under FOIA 

Exemptions 6 and 7(C), as well as Exemption 7(D), which, as 

we have explained, protects from disclosure criminalinvestigative records that if produced “could reasonably be 

expected to disclose the identity of a confidential source” or 

“information furnished by” such a source. 5 U.S.C. § 

552(b)(7)(D). 

The FBI provided the district court with a Vaughn index 

and then a supplemental Vaughn index that described the 

withheld information and explained its reasons for refusing to 

disclose it. See Vaughn v. Rosen, 484 F.2d 820, 826–28 (D.C. 

Cir. 1973) (requiring agencies resisting FOIA disclosure to 

index the information they are withholding and to provide 

non-conclusory justifications for doing so). The district court 

reviewed in camera the disputed documents that were 

responsive to Roth’s second FOIA request, and those 

documents have been submitted for our in camera review as 

well. See 5 U.S.C. § 552(a)(4)(B) (permitting a district court 

in a FOIA case to examine withheld documents in camera). 

Importantly, since the FBI provided a Glomar response to 

Roth’s FOIA request for information concerning Gordon, 

Langford, and Ford, we have no way of knowing whether the 

FBI has information linking the men to the 1983 murders in 

files other than those listed in Roth’s second FOIA request. In 
14 

other words, we do not know whether the documents the FBI 

produced for in camera review are the only documents in the 

FBI’s possession that might implicate Gordon, Langford, or 

Ford. 

Ruling on the FBI’s motion for summary judgment, the 

district court determined that the Glomar response was proper 

and that, with only a few exceptions, the FBI’s withholding of 

information from the documents submitted for in camera

review found support in one or more FOIA exemptions. See 

Roth, 656 F. Supp. 2d at 159–67. On appeal, Roth challenges 

the district court’s conclusions (1) that he had failed to 

identify a sufficiently compelling public interest to justify the 

disclosure of information that might intrude on third-party 

privacy interests protected by Exemptions 6 and 7(C), and (2) 

that the government had satisfied its burden of proving that 

the information withheld under Exemption 7(D) was 

furnished by or could reasonably be expected to disclose the 

identity of a confidential source. Our review of the district 

court’s summary judgment decision is de novo. See Juarez v. 

Dep’t of Justice, 518 F.3d 54, 58 (D.C. Cir. 2008). 

II.

In providing its Glomar response to Roth’s request for 

information regarding Gordon, Langford, and Ford, the FBI 

relied on Exemptions 6 and 7(C), arguing that the mere act of 

confirming whether it even has records regarding these men 

would tend to associate them with criminal activity, thus 

constituting an unwarranted invasion of their privacy. The 

FBI also invoked these exemptions to justify withholding 

information contained in the documents submitted for in 

camera review. In particular, it sought to protect the privacy 

interests of “local law enforcement employees; third parties 

merely mentioned in FBI records; state, local, and non-FBI 

federal government personnel; third parties of investigative 
15 

interest; third parties who provided information to the FBI; 

and commercial institution personnel [i.e., individuals 

working for retailers, manufacturers, and other commercial 

entities].” Roth, 656 F. Supp. 2d at 161–62 (footnotes 

omitted). 

 Exemption 7(C), which requires the government to prove 

only that disclosure “could reasonably be expected to 

constitute an unwarranted invasion of personal privacy,” is 

“somewhat broader” than Exemption 6, which requires proof 

of a “clearly unwarranted invasion of personal privacy.” U.S.

Dep’t of Justice v. Reporters Comm. for Freedom of the 

Press, 489 U.S. 749, 756 (1989). If the information withheld 

here was “compiled for law enforcement purposes,” thus 

implicating Exemption 7(C), then we would have no need to 

consider Exemption 6 separately because all information that 

would fall within the scope of Exemption 6 would also be 

immune from disclosure under Exemption 7(C). 

Although not disputing that the information contained in 

the documents submitted for in camera review was “compiled 

for law enforcement purposes,” Roth contends that the FBI 

has failed to demonstrate that any undisclosed records it 

might have regarding Gordon, Langford, or Ford were 

compiled for such purposes. As Roth correctly notes, “FBI 

records are not law enforcement records [under FOIA] simply 

by virtue of the function that the FBI serves.” Vymetalik v. 

FBI, 785 F.2d 1090, 1095 (D.C. Cir. 1986). For example, 

records the FBI compiles regarding a job applicant may fall 

outside the scope of Exemption 7(C). See id. at 1096 

(distinguishing “between records generated by a law 

enforcement investigation and those generated by an 

employment investigation”). Furthermore, Exemption 7(C) 

would have no applicability to information obtained in an 

illicit intelligence-gathering operation lacking any rational 
16 

nexus to the FBI’s law-enforcement duties. See Pratt v. 

Webster, 673 F.2d 408, 419–21 (D.C. Cir. 1982). In this case, 

however, there is no reason to believe that the FBI would 

have compiled information regarding Gordon, Langford, or 

Ford outside the context of a legitimate law-enforcement 

investigation. Accordingly, the FBI interpreted Roth’s request 

for information regarding these men “as a request for criminal 

investigative information about . . . third parties.” Second 

Hardy Decl. ¶ 24. As the FBI points out, by stating that “he is 

seeking ‘documents relating to the persons that have been 

identified as the real killers,’ ” Roth has essentially confirmed 

that the information he seeks was likely compiled for lawenforcement purposes. Id. (quoting Pl.’s Mem. in Opp’n to 

Mot. for Summ. J. 7). Like the district court, we thus conclude 

that the FBI has satisfied its threshold burden of showing that 

all documents responsive to Roth’s requests, including any 

that might relate to Gordon, Langford, or Ford, were compiled 

for law enforcement purposes. Roth, 656 F. Supp. 2d at 161 

n.6, 166. As a result, we shall focus on Exemption 7(C) rather 

than Exemption 6 since it is the broader of the two. 

To determine whether disclosure “could reasonably be 

expected to constitute an unwarranted invasion of personal 

privacy” for purposes of Exemption 7(C), we must “balance 

the privacy interests that would be compromised by disclosure 

against the public interest in release of the requested 

information.” Davis v. U.S. Dep’t of Justice, 968 F.2d 1276, 

1281 (D.C. Cir. 1992). We have no doubt that Roth’s FOIA 

requests implicate significant privacy interests. As we have 

“long recognized,” the “ ‘mention of an individual’s name in 

a law enforcement file will engender comment and 

speculation and carries a stigmatizing connotation.’ ” 

Schrecker v. U.S. Dep’t of Justice, 349 F.3d 657, 666 (D.C. 

Cir. 2003) (quoting Fitzgibbon v. CIA, 911 F.2d 755, 767 

(D.C. Cir. 1990)). We have thus held that not only the targets 
17 

of law-enforcement investigations, but also “witnesses, 

informants, and . . . investigating agents” have a “substantial 

interest” in ensuring that their relationship to the 

investigations “remains secret.” Id. (internal quotation marks 

omitted); see also SafeCard Servs., Inc. v. SEC, 926 F.2d 

1197, 1205 (D.C. Cir. 1991). 

Roth argues that the privacy interests implicated by his 

FOIA requests are attenuated for two reasons: (1) more than a 

quarter century has passed since the 1983 murders, and (2) 

since Gordon, Langford, and Ford have significant criminal 

records, they would likely suffer less embarrassment and 

reputational harm from being associated with the FBI’s 

investigation of the murders than would ordinary, law-abiding 

citizens. Especially given the particularly heinous nature of 

the 1983 murders, however, neither of these arguments is 

persuasive. If, as we held in Schrecker v. Department of 

Justice, 349 F.3d at 666, the passage of approximately a half 

century did not “materially diminish” individuals’ privacy 

interests in not being associated with McCarthy-era 

investigations, then certainly individuals continue to have a 

significant interest in not being associated with an 

investigation into a brutal quadruple homicide committed less 

than thirty years ago. Furthermore, Roth’s argument that the 

privacy interests of Gordon, Langford, and Ford are 

diminished by their criminal records runs contrary to the 

Supreme Court’s recognition in Department of Justice v. 

Reporters Committee for Freedom of the Press that even 

convicted criminals have a substantial privacy interest in their 

“rap sheets.” 489 U.S. at 762–71, 776–80; see also 

McNamera v. U.S. Dep’t of Justice, 974 F. Supp. 946, 959 

(W.D. Tex. 1997) (noting that “the court was unable to find 

any case holding that a prisoner has fewer privacy rights in 

disclosure of private information, other than for information 

made public during the criminal proceedings, than the rest of 
18 

us”). But even if individuals with criminal records might in 

some cases have a reduced privacy interest in not being 

associated with criminal activity because their reputations 

have already been tarnished by their previous crimes, this is 

hardly such a case. Most of Gordon, Langford, and Ford’s 

convictions are for firearms and drug offenses. Sikes Decl. ¶¶ 

4–6. Although Gordon pleaded guilty to assault with a deadly 

weapon, id. ¶ 4(b), Roth has presented no evidence that any of 

the three men has previously been accused of murder, much 

less convicted of the crime. For this reason, being associated 

with a quadruple homicide would likely cause them precisely 

the type of embarrassment and reputational harm that 

Exemption 7(C) is designed to guard against. 

Having determined that Roth’s FOIA requests implicate 

substantial privacy interests protected by Exemption 7(C), we 

turn to the central question in this case: precisely what public 

interest would be furthered through disclosure? Roth bears the 

burden of showing (1) that “the public interest sought to be 

advanced is a significant one, an interest more specific than 

having the information for its own sake,” and (2) that the 

information he seeks “is likely to advance that interest.” Nat’l 

Archives & Records Admin. v. Favish, 541 U.S. 157, 172 

(2004). According to Roth, disclosure will further the public 

interest in two ways. First, it will advance the public’s interest 

in knowing whether the federal government complied with its 

Brady obligation to disclose material, exculpatory information 

to Bower’s trial counsel. Even though Bower was prosecuted 

in a Texas state court rather than a federal court, the 

Department of Justice, appellee in this case, does not dispute 

that the Assistant United States Attorney who participated in 

Bower’s capital murder trial had a duty not only to learn of 

any Brady material in the FBI’s possession, but also to 

disclose it to Bower’s trial counsel. See Kyles v. Whitley, 514 

U.S. 419, 437 (1995) (“[T]he individual prosecutor has a duty 
19 

to learn of any favorable evidence known to the others acting 

on the government’s behalf in the case, including the 

police.”). Second, and more generally, Roth asserts disclosure 

will further the public’s interest in knowing whether the FBI 

is withholding information that could corroborate a death-row 

inmate’s claim of innocence. Although this second public 

interest was not mentioned in the district court’s decision and 

receives scant attention in the government’s appellate brief, 

see Appellee’s Br. 23–24 (suggesting that Roth failed to 

articulate the second public interest at the district-court level), 

we believe that Roth adequately raised the issue both in the 

district court and here. In the district court, Roth argued that 

the “[p]roduction of the documents at issue [in this case] 

could serve the substantial public interest in avoiding the 

execution of an innocent man.” Pl.’s Mem. in Opp’n to Mot. 

for Summ. J. 1; see also id. at 26 (“[T]he public interest in 

knowing whether the federal government prosecuted and 

obtained the death penalty against the proper person 

outweighs privacy interests in this twenty-five year old case.” 

(bolding and underlining omitted and capitalization of words 

altered)). And on appeal, Roth alleges that the “FBI continues 

to withhold and redact decades-old documents that may help 

to prevent the execution of an innocent man” and asserts, 

“The public has a powerful interest in understanding the 

procedures and governmental actions that lead to capital 

sentences and in ensuring that potentially exculpatory 

evidence is disclosed before a person is executed.” 

Appellant’s Opening Br. 17, 35; see also id. at 20 (“The 

documents requested by Roth touch upon the core objective 

of FOIA—to shed light on what the government is up to—at a 

time in which the public interest in the death penalty in Texas, 

the State’s potential for executing innocent persons, and the 

possible withholding of exculpatory material is at a high 

level.”). 
20 

We pause to emphasize the distinction between the two 

types of public interest claimed by Roth. Since the right to the 

disclosure of material, exculpatory evidence recognized in 

Brady protects a defendant’s right to a fair trial, see Brady, 

373 U.S. at 87, the determination of whether information is 

“material” for purposes of Brady focuses on how the 

information relates to other information known at the time of 

trial, see Kyles, 514 U.S. at 434 (“The question is not whether 

the defendant would more likely than not have received a 

different verdict with the evidence, but whether in its absence 

he received a fair trial, understood as a trial resulting in a 

verdict worthy of confidence.”). It is possible, however, that 

evidence in the government’s possession before trial will 

appear material only in light of evidence developed after trial. 

Consider this very case. Although the Fifth Circuit found it 

unlikely that disclosure of the materials produced in the FBI’s 

2001 FOIA response would have made a difference in 

Bower’s 1984 trial, see Bower, 497 F.3d at 476–77, since that 

trial, witnesses have come forward who have implicated 

others in the 1983 murders. The combination of those 

statements and the materials contained in the FBI’s 2001 

FOIA response could well lead a reasonable person to doubt 

Bower’s guilt. In other words, the documents released in 2001 

may appear material only in light of the witnesses’ post-trial 

statements. The Supreme Court, however, has indicated that 

Brady generally “is the wrong framework” for evaluating the 

government’s post-trial disclosure obligations. Dist. 

Attorney’s Office for the Third Judicial Dist. v. Osborne, 129 

S. Ct. 2308, 2320 (2009); see also Skinner v. Switzer, 131 S. 

Ct. 1289, 1300 (2011) (“Brady announced a constitutional 

requirement addressed first and foremost to the prosecution’s 

conduct pretrial.”). Thus, the public’s interest in knowing 

whether the federal government complied with its Brady

obligations at the time of Bower’s trial is narrower than and 

does not fully encompass the public’s more general interest in 
21 

knowing whether the FBI is withholding information that 

could corroborate Bower’s claim of innocence. 

Furthermore, we have no doubt that the second, nonBrady-related public interest identified by Roth is substantial. 

In recent years, high-profile exonerations of death-row 

inmates have generated considerable public interest in the 

potential innocence of individuals sentenced to death. See

Death Penalty Info. Ctr., The Innocence List, 

http://www.deathpenaltyinfo.org/innocence-list-those-freeddeath-row (last visited June 16, 2011) (listing 138 death-row 

inmates who, since 1973, have been pardoned based on new 

evidence of innocence or have had their convictions 

overturned and either were not retried or were acquitted at 

retrial). This interest has manifested itself in several media, 

including newspaper articles, editorials, journalistic exposés, 

novels, and plays. See, e.g., Jessica Blank & Erik Jensen, The 

Exonerated (2004); John Grisham, The Confession (2010); 

David Grann, Trial by Fire: Did Texas Execute an Innocent 

Man?, New Yorker, Sept. 7, 2009, at 42; see also Editorial, 

The Death Penalty: It’s Time for Capital Punishment To 

Become Texas History, Houston Chron., Jan. 2, 2011, at B11 

(calling for the abolition of the death penalty in Texas because 

“accumulating evidence indicates that the current application 

of the death penalty in [the state] involves an unacceptably 

high risk of killing innocent people”); Tim Madigan, Witness 

Says Condemned Man Isn’t Responsible for 1983 Slayings, 

Star-Telegram (Ft. Worth, Tex.), June 29, 2008, at 1B 

(discussing Bower’s effort to prove his innocence). 

The government insists that “Bower’s status as an 

individual facing capital punishment should not affect” our 

analysis under Exemption 7(C). Appellee’s Br. 37. We 

disagree. The fact that Bower has been sentenced to the 

ultimate punishment strengthens the public’s interest in 
22 

knowing whether the FBI’s files contain information that 

could corroborate his claim of innocence. The case on which 

the government relies, Loving v. Department of Defense, 550 

F.3d 32 (D.C. Cir. 2008), says nothing to the contrary. True, 

we said in Loving—which dealt with FOIA Exemption 5, not 

Exemption 7(C)—that the fact that the FOIA requester was a 

capital prisoner had “no bearing on the merits” of his request. 

Id. at 39 (internal quotation marks omitted); see also 5 U.S.C. 

§ 552(b)(5) (providing that FOIA’s disclosure requirement 

“does not apply to . . . inter-agency 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”). 

But this statement merely reiterated what the Supreme Court 

said in Reporters Committee: “Except for cases in which the 

objection to disclosure is based on a claim of privilege and the 

person requesting disclosure is the party protected by the 

privilege, the identity of the requesting party has no bearing 

on the merits of his or her FOIA request.” Reporters Comm., 

489 U.S. at 771; see also Loving, 550 F.3d at 39 (quoting 

Reporters Comm.). This principle requires nothing more than 

that our legal analysis remain unaffected by the fact that this 

case was brought by a lawyer representing Bower instead of 

by a party with no relation to Bower, such as a reporter, 

academic, or individual citizen simply interested in Bower’s 

case. As we weigh the public interest at stake in this case, 

neither Loving nor Reporters Committee bars us from 

considering the fact that Bower has been sentenced to death. 

Having concluded that the second type of public interest 

is both distinct from the first and substantial, we must now 

consider whether either of the public interests identified by 

Roth requires the FBI to disclose information withheld under 

Exemption 7(C). We can easily dispose of Roth’s challenge to 

the FBI’s withholding of information from the documents that 

we and the district court reviewed in camera. Turning first to 
23 

the public’s interest in revealing Brady violations, we highly 

doubt that any of the information withheld under Exemption 

7(C) qualifies as Brady material. But even if reasonable minds 

could disagree on this point, we believe that the privacy 

interests of the individuals named in the documents outweigh 

any public interest in disclosure. At most, the documents 

contain information that one might consider to lie near the 

hazy borderline separating material from immaterial evidence. 

See Kyles, 514 U.S. at 435 (noting that in determining 

whether withheld evidence is “material” for purposes of 

Brady, a court should consider whether “the favorable 

evidence could reasonably be taken to put the whole case in 

such a different light as to undermine confidence in the 

verdict,” an inquiry that is difficult for us to undertake here 

since Roth has failed to produce the transcripts of Bower’s 

trial). Although Bower certainly has an intense personal 

interest in obtaining whatever information might bolster the 

Brady claims he is presenting in his collateral attacks on his 

conviction, Bower’s personal stake in the release of the 

requested information is “irrelevant” to the balancing of 

public and third-party privacy interests required by 

Exemption 7(C). Mays v. DEA, 234 F.3d 1324, 1327 (D.C. 

Cir. 2000). FOIA is not a substitute for discovery in criminal 

cases or in habeas proceedings. Instead, its purpose is to 

protect “the citizens’ right to be informed about ‘what their 

government is up to.’ ” Reporters Comm., 489 U.S. at 773 

(quoting EPA v. Mink, 410 U.S. 73, 105 (1973) (Douglas, J., 

dissenting)). Although the public might well have a 

significant interest in knowing whether the federal 

government engaged in blatant Brady violations in a capital 

case, we are confident that none of the documents we have 

reviewed in camera reveals any such egregious government 

misconduct. Cf. Boyd v. Crim. Div. of the U.S. Dep’t of 

Justice, 475 F.3d 381, 387–88 (D.C. Cir. 2007) (stating, in a 

FOIA case in which a defendant convicted of non-capital drug 
24 

and weapons offenses sought records that he claimed might 

reveal “Brady-related misconduct,” that a “single instance of 

a Brady violation . . . would not suffice to show a pattern of 

government wrongdoing as could overcome the significant 

privacy interest at stake”). 

With respect to the second public interest identified by 

Roth—the public’s interest in knowing whether the FBI is 

withholding information that could help exonerate a 

potentially innocent death-row inmate—our in camera review 

also revealed no information withheld under Exemption 7(C) 

that would substantially corroborate Bower’s claim that 

Leckie, Gordon, Langford, and Ford were the true killers. 

True, as Roth argues, “it is entirely possible that the 

importance of the withheld documents would only be clear to 

one who has extensive knowledge of the Bower trial, 

sentencing, and habeas proceedings.” Appellant’s Opening 

Br. 39. But we can only weigh the public and private interests 

at stake based on the record before us, and it was Roth’s 

responsibility to provide the district court and this Court with 

the information necessary to perform that balancing. Based on 

the information presented to us, we conclude that the FBI 

acted appropriately in redacting information under Exemption 

7(C) from the in camera documents. 

 The FBI’s Glomar response to Roth’s request for 

information regarding Gordon, Langford, and Ford presents 

more difficult issues. Since the FBI has refused to confirm or 

deny whether it has information regarding these men, we have 

no way of knowing whether any information it might have 

would qualify as Brady material or could corroborate Bower’s 

claim of innocence. Because Glomar responses are an 

exception to the general rule that agencies must acknowledge 

the existence of information responsive to a FOIA request and 

provide specific, non-conclusory justifications for 
25 

withholding that information, see Vaughn, 484 F.2d at 826–

28, they are permitted only when confirming or denying the 

existence of records would itself “ ‘cause harm cognizable 

under an FOIA exception,’ ” Wolf v. CIA, 473 F.3d 370, 374 

(D.C. Cir. 2007) (quoting Gardels v. CIA, 689 F.2d 1100, 

1103 (D.C. Cir. 1982)). Thus, in determining whether the FBI 

properly provided a Glomar response, we must consider 

whether “the fact of the existence or nonexistence of [the 

requested] records falls within a FOIA exemption.” Id. Since 

merely acknowledging that the FBI has information regarding 

Gordon, Langford, and Ford would tend to associate them 

with criminal activity, thus impinging on their privacy, the 

FBI’s Glomar response, absent a countervailing public 

interest in disclosure, was appropriate under Exemption 7(C). 

Where, as here, the asserted public interest is the revealing of 

government misconduct, the Supreme Court’s decision in 

National Archives & Records Administration v. Favish

requires that the FOIA requester “establish more than a bare 

suspicion” of misconduct. 541 U.S. at 174. Instead, “the 

requester must produce evidence that would warrant a belief 

by a reasonable person that the alleged Government 

impropriety might have occurred.” Id. Only if Roth satisfies 

this threshold requirement will we proceed to balance 

Gordon, Langford, and Ford’s interest in having the FBI 

neither confirm nor deny the existence of records relating to 

them against the public interest at stake. See Boyd, 475 F.3d at 

387. 

We begin with the first public interest identified by 

Roth—the interest in knowing whether the federal 

government violated its Brady obligations at the time of 

Bower’s trial. As evidence that the federal government might 

well have failed to comply with Brady, Roth points to 

information that he claims was disclosed for the first time in 

the FBI’s 2001 FOIA response. As explained above, the 
26 

documents produced in 2001 indicated that one of the murder 

victims was involved in illegal gambling and drug dealing; 

that Julio Fiocchi .22-caliber subsonic ammunition could be 

purchased at gun shows and has legitimate uses; that just as 

Bower’s trial was beginning the FBI decided against going 

ahead with a planned comparison between the bullets taken 

from the victims’ bodies and bullets from the same lot number 

as Bower had purchased; and that Catawba silencer tubes are 

readily available from many sources. 

For its part, the government insists that Roth cannot rely 

on the documents produced in 2001 to support his Brady

argument because in the district court he failed to offer any 

proof that those documents were not provided to Bower’s trial 

counsel in 1984. We agree with Roth that this argument is 

“silly.” Appellant’s Reply Br. 1. In the district court, Roth 

clearly argued that the 2001 FOIA response contained 

undisclosed Brady material. See Compl. ¶ 9 (alleging that the 

FBI and the U.S. Attorney’s Office had failed to provide 

evidence to Bower’s trial counsel “in violation of Brady v. 

Maryland”); Pl.’s Mem. in Opp’n to Def.’s Mot. for Summ. J. 

6 (“The information and/or documents withheld from the 

1990 FOIA production but produced in 2001 included 

evidence that would have supported Mr. Bower’s defense and, 

in Plaintiff’s view, constituted material, exculpatory 

information that should have been turned over to the defense 

before trial, pursuant to Brady v. Maryland . . . .”); id. at 28 

(“Through documents that the FBI finally released in 2001 . . . 

, Mr. Bower has learned that during his trial, the FBI failed to 

produce what he believes is material and exculpatory 

information regarding the murders . . . .”). If the government 

wished to challenge Roth’s failure to present a sworn 

declaration or other evidence demonstrating that the 

information produced in 2001 had not previously been 

disclosed, it should have done so in the district court. See 
27 

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (“[A] 

party seeking summary judgment always bears the initial 

responsibility of informing the district court of the basis for its 

motion, and identifying those portions of ‘the pleadings, 

depositions, answers to interrogatories, and admissions on 

file, together with the affidavits, if any,’ which it believes 

demonstrate the absence of a genuine issue of material fact.” 

(quoting Fed. R. Civ. P. 56(c) (1986))). The government’s 

single comment that “Roth ha[d] failed to proffer any 

evidence, much less compelling evidence, that the FBI 

engaged in any illegal activity” was hardly sufficient to alert 

Roth that the government meant to challenge his claim that 

the information revealed in 2001 had not previously been 

turned over to Bower’s trial attorney. Def.’s Reply & Opp’n 

to Pl.’s Cross Mot. 14. Had the government raised this 

challenge in the district court, Roth might have responded 

with an affidavit stating that the information produced in 2001 

was not disclosed at the time of Bower’s trial. See Roth Decl. 

¶ 12, Bower v. Director, Tex. Dep’t of Crim. Justice–Inst’l 

Div., No. 1:92cv182 (E.D. Tex. July 12, 2002) (averring in a 

declaration submitted in Bower’s federal habeas proceeding 

that “[m]ost of the documents produced in the 2001 FOIA 

response” were not made available to Bower’s trial counsel). 

But having failed to raise the argument in the district court in 

a manner sufficient to put Roth on notice of the need to rebut 

it, the government is barred from doing so for the first time on 

appeal. See, e.g., Elliott v. U.S. Dep’t of Agric., 596 F.3d 842, 

851 (D.C. Cir. 2010). As a result, we shall assume that the 

favorable evidence the FBI released in 2001 had not been 

provided to Bower’s trial counsel. 

Even under this assumption, however, Roth’s 

argument—that the public has a significant interest in 

knowing whether the federal government failed to disclose 

Brady material regarding Gordon, Langford, or Ford—still 
28 

falters at the Favish threshold. Roth argues (1) that the FBI’s 

2001 FOIA response contained undisclosed Brady material, 

and (2) that one can infer from this fact that the FBI might 

have other such material in its possession. But the first step of 

this argument fails given the Fifth Circuit’s decision affirming 

the denial of Bower’s federal habeas petition. See Bower, 497 

F.3d at 476–77. Reviewing the very FBI disclosures Roth 

contends constituted Brady material, the Fifth Circuit 

concluded that the information “was not material” for 

purposes of Brady. Id. at 477. Our case law requires that we 

defer to this decision. See Martin v. Dep’t of Justice, 488 F.3d 

446, 453, 456–58 (D.C. Cir. 2007) (deferring to a district 

court’s decision in a separate habeas proceeding that the 

information sought by a FOIA requester was “not Brady

material”). 

Having disposed of Roth’s argument that he is entitled to 

further disclosures based on the public’s interest in revealing 

Brady violations, we turn to the far more interesting question 

of whether Roth may overcome the FBI’s Glomar response 

based on the public’s more general interest in knowing 

whether the FBI is withholding information that could 

corroborate Bower’s claim of innocence. To demonstrate that 

this interest is likely to be advanced by disclosing whether the 

FBI’s files contain records regarding Gordon, Langford, or 

Ford, Roth must show that a reasonable person could believe 

that the following might be true: (1) that the Oklahoma drug 

dealers were the real killers, and (2) that the FBI is 

withholding information that could corroborate that theory. 

See Favish, 541 U.S. at 174. In our view, Roth has made both 

showings. 

Since Bower’s trial, two witnesses—Langford’s exgirlfriend and Leckie’s widow—have provided sworn 

statements implicating the Oklahoma drug dealers. When 
29 

combined with the evidence in the FBI’s 2001 FOIA response 

that one of the murder victims may have been involved with 

illegal gambling and drug dealing and that the ammunition 

used in the murders was not as rare as the prosecution claimed 

and could be put to legitimate uses, these witnesses’ 

statements might well cause a reasonable person to doubt 

Bower’s guilt. With respect to the second showing Roth must 

make—that a reasonable person could believe that the FBI 

might be withholding information that could corroborate 

Bower’s claim of innocence—there can be no doubt that the 

FBI in the past has failed to disclose information favorable to 

Bower upon request. The agency’s 2001 FOIA response 

contained information that was neither disclosed to Bower’s 

trial counsel nor produced in response to similar FOIA 

requests submitted on Bower’s behalf in 1989. As explained 

above, Bower now relies on some of this previously 

undisclosed information to bolster his claim of innocence. 

The fact that the FBI withheld such information until 2001, 

approximately seventeen years after Bower’s trial, “would 

warrant a belief by a reasonable person” that the FBI “might” 

have other potentially exculpatory information in its files, 

possibly including information regarding Gordon, Langford, 

or Ford. Id. 

At oral argument, government counsel urged us to 

disregard the statements of Langford’s ex-girlfriend because a 

state habeas court in Texas found that an affidavit setting 

forth her story bore “no indicia of reliability.” Ex parte 

Bower, Nos. 33426-A, 33427-A, 33428-A, 33429-A, slip op. 

at 2 (Tex. 15th Dist. Ct. Jan. 11, 1990). But by raising this 

contention for the first time at oral argument, the government 

deprived Roth of a meaningful opportunity to respond. The 

argument is thus forfeited. See United States v. Southerland, 

486 F.3d 1355, 1360 (D.C. Cir. 2007) (noting that an 

argument raised for the first time at oral argument is generally 
30 

considered forfeited). In addition, although Roth has not filed 

in this litigation the affidavits of Langford’s ex-girlfriend and 

Leckie’s widow, the decision denying Bower’s federal habeas 

petition describes the testimony given by Langford’s exgirlfriend in those proceedings, see Bower Habeas Op., No. 

1:92cv182, slip op. at 23–24, and the government’s brief on 

appeal neither disputes Roth’s summary of the information 

contained in the affidavit of Leckie’s widow nor specifically 

challenges Roth’s failure to file the affidavit with the district 

court, see United States v. Ford, 184 F.3d 566, 578 n.3 (6th 

Cir. 1999) (“Even appellees waive arguments by failing to 

brief them.”). 

In contrast to Roth’s Brady argument, the deference we 

owe the Fifth Circuit’s habeas decision does not prevent us 

from concluding that Roth has satisfied the Favish standard 

with respect to his claim that the public has an interest in 

knowing whether the FBI is withholding information that 

could corroborate a death-row inmate’s claim of innocence. 

That interest in no way hinges on the doctrinal complexities 

of Brady and its progeny. As explained above, it is at best 

unclear the extent to which the Brady framework would apply 

to evidence whose materiality became apparent only after the 

defendant had been convicted and sentenced. See Skinner, 131 

S. Ct. at 1300; Osborne, 129 S. Ct. at 2320. Certainly, there is 

no indication that the Fifth Circuit, in conducting its Brady 

analysis, considered the affidavits of Langford’s ex-girlfriend 

and Leckie’s widow. See Bower, 497 F.3d at 476–77. As a 

result, there is no conflict between the Fifth Circuit’s 

affirmance of the denial of Bower’s habeas petition and our 

holding here that Roth has shown that a reasonable person 

could believe that the FBI might be withholding information 

that could corroborate Bower’s claim of innocence. 
31 

Since Roth has satisfied his obligations under Favish, we 

must proceed to balance the public and private interests at 

stake in this case. Favish, 541 U.S. at 174; see also Boyd, 475 

F.3d at 387. Although Gordon, Langford, and Ford have a 

significant interest in avoiding any association with a criminal 

investigation into a quadruple homicide, see, e.g., Schrecker, 

349 F.3d at 666, the public also has a compelling interest in 

knowing whether the FBI is refusing to disclose information 

that could help exonerate Bower. Weighing the competing 

interests, we conclude that the balance tilts decidedly in favor 

of disclosing whether the FBI’s files contain information 

linking Gordon, Langford, or Ford to the FBI’s investigation 

of the killings. As a result, we shall reverse the district court’s 

rejection of Roth’s challenge to the FBI’s Glomar response 

and remand for further proceedings. 

In doing so, however, we emphasize that the FBI need 

not disclose whether it has information about the three men 

that is unrelated to its investigation into the 1983 murders. 

The public’s interest is in knowing whether the FBI’s files 

contain information that could corroborate Bower’s claim of 

innocence, not in knowing all information the FBI may have 

about the three men. That said, the FBI will need to reveal the 

existence of any records connecting Gordon, Langford, or 

Ford to the agency’s investigation into the 1983 murders. Of 

course, if such records exist, they may well fall within one or 

more FOIA exemptions. For example, if in the course of its 

investigation the FBI obtained the criminal history records of 

Gordon, Langford, or Ford, those records would be immune 

from disclosure. See Reporters Comm., 489 U.S. at 776–80. 

But the mere fact that records fall within a FOIA exemption 

provides no justification for failing to acknowledge their 

existence. Given the significant public interest in knowing 

whether the FBI is withholding information that could 

potentially help Bower prove his innocence, the FBI must 
32 

either produce any records it has linking Gordon, Langford, or 

Ford to its investigation into the four murders, or it must 

follow the normal practice in FOIA cases of identifying the 

records it has withheld and stating its reasons for doing so. 

See Vaughn, 484 F.2d at 826–28. 

Taking a different approach, the dissent presents the 

following syllogism: (1) our case law has embraced the 

categorical rule that the public’s interest in revealing Brady 

violations “does not suffice to override the privacy interests of 

third parties named in . . . law enforcement files,” Dissenting 

Op. at 3; (2) for purposes of FOIA, there is no “meaningful” 

difference between the public’s interest in learning of Brady

violations and the public’s interest in uncovering the 

government’s post-trial withholding of information that could 

corroborate a convicted defendant’s claim of innocence, id. at 

4; (3) therefore, our case law supports a categorical rule that 

the latter interest cannot outweigh privacy interests protected 

by Exemption 7(C), see id. The syllogism fails at the first 

premise. Despite the dissent’s assumption to the contrary, this 

circuit has expressly refrained from deciding whether to adopt 

a categorical rule that the public’s interest in revealing Brady

violations cannot overcome government invocations of 

Exemption 7(C). See Martin, 488 F.3d at 458 (noting that the 

“issue remains an open question in this circuit”). Certainly, 

we have never held that the public’s interest in revealing 

Brady violations is categorically insufficient to warrant 

disclosure where, as here, an individual has been sentenced to 

death. And to be clear, we reach no such holding here. True, 

we have distinguished between the public’s interest in 

knowing whether the federal government violated Bower’s 

Brady rights and the public’s interest in learning whether the 

FBI is withholding information that could corroborate 

Bower’s claim of innocence. See supra pp. 20–21. But our 

drawing of this distinction had nothing to do with the question 
33 

of whether a categorical rule bars FOIA requesters from 

seeking Brady material implicating third-party privacy 

interests. Instead, we discussed the difference between Roth’s 

Brady and non-Brady related public-interest theories to 

explain why the Fifth Circuit’s habeas decision, which fatally 

undermined Roth’s Brady-related theory, did not also doom 

his non-Brady theory. See supra p. 30. 

Perhaps recognizing the weakness of its syllogism, the 

dissent also contends that the Supreme Court’s decision in 

Reporters Committee supports a categorical rule that the 

public’s interest in learning whether the government is 

withholding information that could corroborate a death-row 

inmate’s claim of innocence cannot overcome third-party 

privacy interests protected by Exemption 7(C). But Reporters 

Committee is readily distinguishable from this case. There, the 

FOIA requesters sought a private citizen’s criminal history 

record, the disclosure of which the Court concluded would do 

“little or nothing” to further FOIA’s purpose of informing the 

public about “what the[] government is up to.” 489 U.S. at 

773–75 (internal quotation marks omitted); see also id. at 780 

(“[W]e hold as a categorical matter that a third party’s request 

for law enforcement records or information about a private 

citizen can reasonably be expected to invade that citizen’s 

privacy, and that when the request seeks no ‘official 

information’ about a Government agency, but merely records 

that the Government happens to be storing, the invasion of 

privacy is ‘unwarranted.’ ” (emphasis added)). Here, by 

contrast, requiring the FBI to disclose whether it possesses 

any records linking Gordon, Langford, or Ford to its 

investigation of the quadruple murder would “shed . . . light 

on the conduct of a[] Government agency.” Id. at 773. In 

particular, it would further the public’s interest in revealing 

whether the FBI is withholding information that could 

corroborate the claim of innocence of a man whom it helped 
34 

put on death row. Cf. id. (noting that in Reporters Committee, 

the requesters did “not intend to discover anything about the 

conduct of the agency that ha[d] possession of the requested 

records”). 

“[B]orrow[ing] the words of Reporters Committee,” the 

dissent nonetheless believes that the balance between public 

and private interests “characteristically will tip . . . in favor of 

non-disclosure when a requester seeks private information 

about third parties contained in files related to a criminal 

prosecution.” Dissenting Op. at 5. Why? Because, the dissent 

answers, “the public interest in accurately assessing criminal 

liability or exposing prosecutorial or investigative misconduct 

is invariably lessened in the FOIA context by the existence of 

traditional criminal and civil litigation processes where that 

public interest is directly addressed.” Id. The dissent cites no 

authority in support of this proposition, which is hardly 

surprising. It simply makes no sense to say that the public’s 

interest in a particular piece of information is reduced merely 

because multiple mechanisms might exist for obtaining that 

information. The dissent makes much of the fact that the type 

of information Roth seeks may be available through criminal 

and civil discovery. See id. at 3, 8. But we have made clear 

that the potential availability of criminal and civil discovery 

in no way bars an individual from obtaining information 

through FOIA where no exemption otherwise applies. See 

Morgan v. U.S. Dep’t of Justice, 923 F.2d 195, 198 (D.C. Cir. 

1991). “Indeed, there are situations in which FOIA will 

permit access to information that would not be available 

through discovery.” Id. (internal quotation marks omitted). 

Furthermore, the “criminal and civil litigation processes” 

discussed by the dissent would be unavailable to a FOIA 

requester who, unlike Roth, has no relationship with Bower. 

Dissenting Op. at 5. The dissent’s approach thus appears 

inconsistent with the fundamental FOIA principle that “the 
35 

identity of the requesting party has no bearing on the merits of 

his or her FOIA request.” Reporters Comm., 489 U.S. at 771. 

For all these reasons, although we of course agree with the 

dissent that Reporters Committee makes clear that categorical 

rules “may be appropriate” in FOIA cases, we nonetheless 

believe that the dissent has failed to justify its proposed 

categorical approach because it has provided no persuasive 

explanation as to why this particular “case fits into a genus in 

which the balance [between public and private interests] 

characteristically tips in one direction.” Id. at 776. 

Finally, and in our minds sealing the point, the dissent’s 

categorical approach risks producing absurd consequences 

that we highly doubt Congress intended. For example, under 

the dissent’s rationale, it appears that we would have to 

uphold the FBI’s withholding of information under 

Exemption 7(C) even if we knew for certain from the FBI’s in 

camera submission that the agency is deliberately 

withholding records that conclusively show that the 

Oklahoma drug dealers were the true killers. We decline to 

adopt a rule so at odds with “FOIA’s prodisclosure purpose.” 

Favish, 541 U.S. at 174. Instead, we have engaged in the 

balancing contemplated by Exemption 7(C), concluding that 

in the circumstances of this case, where the FOIA requester 

has surmounted the fairly substantial hurdle of showing that a 

reasonable person could believe that the FBI might be 

withholding information that could corroborate a death-row 

inmate’s claim of innocence, the balance militates in favor of 

fuller disclosure. See id. at 171 (noting that Exemption 7(C) 

requires courts “to balance the [third party’s] privacy interest 

against the public interest in disclosure”). 

 

III. 

This brings us finally to Roth’s challenge to the FBI’s 

withholding of information under Exemption 7(D). This issue 
36 

relates only to information redacted from the documents we 

have reviewed in camera. It has no implications for the FBI’s 

Glomar response, which the agency sought to justify only 

under Exemption 7(C). 

Where, as here, the records at issue were “compiled by 

criminal law enforcement authorit[ies] in the course of a 

criminal investigation,” they are covered by Exemption 7(D) 

if producing the records “could reasonably be expected to 

disclose the identity of a confidential source” or “information 

furnished” by such a source. 5 U.S.C. § 552(b)(7)(D). The 

agency invoking Exemption 7(D) bears the burden of proving 

that it applies, and with respect to the FBI, it is not enough for 

the agency to claim that all sources providing information in 

the course of a criminal investigation do so on a confidential 

basis. See U.S. Dep’t of Justice v. Landano, 508 U.S. 165, 

171, 181 (1993). Instead, the FBI must “point to more 

narrowly defined circumstances that . . . support the 

inference” of confidentiality. Id. at 179. When no express 

assurance of confidentiality exists, courts consider a number 

of factors to determine whether the source nonetheless “spoke 

with an understanding that the communication would remain 

confidential.” Id. at 172. These factors include “the character 

of the crime at issue,” “the source’s relation to the crime,” 

whether the source received payment, and whether the source 

has an “ongoing relationship” with the law enforcement 

agency and typically communicates with the agency “only at 

locations and under conditions which assure the contact will 

not be noticed.” Id. at 179 (internal quotation marks omitted). 

Even when the FBI contends that a source received an express 

assurance of confidentiality, it must, in order to “permit 

meaningful judicial review,” present sufficient evidence that 

such an assurance was in fact given. Campbell v. U.S. Dep’t 

of Justice, 164 F.3d 20, 34 (D.C. Cir. 1998). 
37 

Unlike Exemptions 6 and 7(C), Exemption 7(D) requires 

no balancing of public and private interests. See Parker v. 

Dep’t of Justice, 934 F.2d 375, 380 (D.C. Cir. 1991). If the 

FBI’s production of criminal investigative records “could 

reasonably be expected to disclose the identity of a 

confidential source” or “information furnished by” such a 

source, that ends the matter, and the FBI is entitled to 

withhold the records under Exemption 7(D). 5 U.S.C. § 

552(b)(7)(D). 

Roth complains that the FBI’s Vaughn index and 

supplemental Vaughn index contain “only generic statements 

regarding confidentiality,” thus failing to satisfy the FBI’s 

burden of proving that the withheld information came from or 

could identify a confidential source. Appellant’s Opening Br. 

44. Under our case law, agencies invoking a FOIA exemption 

must provide a specific, detailed explanation of why the 

exemption applies to the withheld materials. See Vaughn, 484 

F.2d at 826–28. Reviewing documents in camera is no 

“substitute for the government’s obligation to provide detailed 

public indexes and justifications whenever possible.” Lykins 

v. U.S. Dep’t of Justice, 725 F.2d 1455, 1463 (D.C. Cir. 

1984). Requiring agencies to provide public explanations for 

their redactions allows for adversarial testing of the agencies’ 

claims, which helps focus the court’s attention on the most 

important issues in the litigation and may reveal not otherwise 

apparent flaws in the agencies’ reasoning. See id.; see also 

Vaughn, 484 F.2d at 828. That said, we have recognized “that 

there are occasions when extensive public justification would 

threaten to reveal the very information for which a FOIA 

exemption is claimed.” Lykins, 725 F.2d at 1463. Although in 

such a case an agency is still required to provide as much 

public explanation as it can without “giving away the 

information it is trying to withhold,” it may supplement its 
38 

explanation by making the documents available for in camera

review. Id. at 1463–64. 

Here, the FBI has generally struck an appropriate 

balance, publicly explaining to the extent it can why it has 

concluded that certain sources provided information under an 

express or implied assurance of confidentiality and then 

relying on in camera judicial review to confirm its 

conclusions. The FBI invoked Exemption 7(D) with respect to 

four categories of sources: local law enforcement agencies; 

informants who have been assigned confidential source 

symbol numbers; third parties without source symbol 

numbers who nonetheless provided information under an 

express assurance of confidentiality; and third parties who 

provided information under an implied assurance of 

confidentiality. See Roth, 656 F. Supp. 2d at 165. We have no 

need to assess the sufficiency of the FBI’s explanation for its 

conclusion that local law enforcement agencies provided 

information with an expectation of confidentiality because the 

limited amount of information that the FBI withheld based on 

this rationale also implicates personal privacy interests and 

thus falls within the scope of Exemption 7(C). With respect to 

source-symbol-number informants, the FBI explains in its 

Vaughn index that it “assigns permanent source symbol 

numbers . . . to confidential informants who report 

information to the FBI on a regular basis pursuant to an 

‘express’ assurance of confidentiality.” First Hardy Decl. ¶ 

83. Given that Roth fails to directly challenge this statement 

on appeal, we conclude that the FBI has borne its burden of 

proving that it provided an express assurance of 

confidentiality to the source-symbol-number informants 

mentioned in the in camera documents. See Mays, 234 F.3d at 

1328–29 (upholding the FBI’s withholding of information 

furnished by a “coded informant” based on an affidavit 

“describ[ing] the DEA’s standard practice of identifying 
39 

confidential informants” with such codes (internal quotation 

marks omitted)). 

The remaining Exemption 7(D) redactions relate to 

informants to whom the FBI assigned no source symbol 

numbers. Having reviewed the documents and the Vaughn

indexes, we think it obvious that most of these individuals 

provided information under an express or implied assurance 

of confidentiality. The documents the parties have labeled 

“Roth/Bower 98–99, 111, and 477” convey information 

provided by two sources who “specifically requested [that] 

their identities not be disclosed because they feared reprisal.” 

First Hardy Decl. ¶ 87. Indeed, the documents themselves 

contain positive indications that the FBI gave the sources 

express assurances of confidentiality. Specifically, the 

documents state that one source “desired to remain 

anonymous,” and the name of the second source is followed 

by the words “protect identity” in parentheses. Similarly, 

Roth/Bower 206 indicates that the source discussed in that 

document “confidentially advised” the FBI of certain 

information, thus indicating that the source had an expectation 

of confidentiality. With respect to Roth/Bower 129, the FBI’s 

supplemental Vaughn index explains that the source discussed 

in the document “provided information to the FBI for a 

number of years as a confidential informant with an express 

promise of confidentiality.” Second Hardy Decl. ¶ 20. Finally, 

the Vaughn index states that the source discussed in 

Roth/Bower 254 and 256 “provided specific detailed 

information that is singular in nature concerning the criminal 

activities involving [Bower], his associates, and/or other 

subjects of [the FBI’s] investigation.” First Hardy Decl. ¶ 81. 

Although this statement is quite conclusory, the FBI might 

well have had difficulty revealing much more information 

without running the risk of divulging the source’s identity. 

Having reviewed Roth/Bower 254 and 256 in camera, we 
40 

conclude that given the brutal nature of the quadruple 

homicide and the source’s relationship with at least some of 

the victims, the source likely provided information to the FBI 

“with an understanding that the communication would remain 

confidential.” Landano, 508 U.S. at 172. 

But our in camera review discloses two instances in 

which the FBI’s stated explanation for redacting information 

under Exemption 7(D) fails to correspond to the information 

actually contained in the documents. Although the FBI claims 

that the last paragraph of Roth/Bower 108 contains 

information provided by an informant who had been assigned 

a source symbol number, no such informant is mentioned in 

that paragraph. Instead, the paragraph describes information 

obtained by a local law enforcement agent in an interview 

with a named individual. The other problematic redactions 

appear in the carryover paragraph of Roth/Bower 112–13. 

Although the FBI has properly redacted information from this 

paragraph’s second sentence that relates to a source-symbolnumber informant, it has failed to provide any support for its 

contention that each of the other sources discussed in the 

carryover paragraph received express assurances of 

confidentiality. See First Hardy Decl. ¶ 87–88; Second Hardy 

Decl. ¶ 18. 

Accordingly, the FBI has failed to bear its burden of 

proving that the information redacted from the last paragraph 

of Roth/Bower 108 and the carryover paragraph of 

Roth/Bower 112–13 (with the exception of the second 

sentence) falls within the scope of Exemption 7(D). That said, 

the FBI has properly invoked Exemptions 6 and 7(C) to 

withhold information implicating personal privacy interests. 

We leave the task of separating the wheat from the chaff to 

the district court in the first instance. Specifically, the court 

should first determine which portions of the two paragraphs 
41 

fall within Exemptions 6 and 7(C) and then order the FBI to 

produce all segregable, non-exempt information. See 5 U.S.C. 

§ 552(b) (“Any reasonably segregable portion of a record 

shall be provided to any person requesting such record after 

deletion of the portions which are exempt under this 

subsection.”). 

 

IV. 

For the foregoing reasons, we affirm in part, reverse in 

part, and remand for further proceedings consistent with this 

opinion. 

So ordered. 
KAVANAUGH, Circuit Judge, concurring in part and 

dissenting in part1

:

In 1984, Lester Bower was convicted by a Texas statecourt jury of murdering four men. Bower was sentenced to 

death. His conviction and death sentence have been affirmed 

on appeal, in state habeas proceedings, and in federal habeas 

proceedings. 

Bower maintains that he is innocent. He cites two 

witnesses who came forward and suggested that four 

Oklahoma drug dealers were responsible for these murders. 

Pursuant to Texas law, Bower is pursuing a postconviction DNA proceeding in Texas state court in an attempt 

to show his innocence. His execution remains on hold as a 

matter of state law while that process continues.

This is a federal Freedom of Information Act case, not a 

criminal, habeas, or clemency proceeding. Bower’s attorney, 

Anthony Roth, submitted FOIA requests and asked the FBI to 

release documents related to the underlying criminal 

investigation of these killings, as well as records relating to 

the four men that Bower claims committed the murders. 

Because the original criminal investigation into these 

murders was conducted by federal as well as state 

investigators, the FBI possessed a number of responsive 

documents. The FBI turned over many of those documents to 

Roth in response to his FOIA request. But the FBI declined 

to produce documents (or portions thereof) that contained 

private information about third parties, including about the 

 1 I join Part III of the majority opinion, which addresses 

Exemption 7(D). I dissent from Part II, which addresses Exemption 

7(C). This separate opinion focuses solely on the Exemption 7(C) 

issue.
2

three still-living Oklahoma drug dealers. In declining to 

produce such information, the FBI cited FOIA Exemption 

7(C). That exemption authorizes the Government to withhold 

law enforcement files the disclosure of which “could 

reasonably be expected to constitute an unwarranted invasion 

of personal privacy.” 5 U.S.C. § 552(b)(7)(C). 

Interpreting Exemption 7(C), the Supreme Court and this 

Court have ruled that FOIA ordinarily is not a proper tool for 

the public to obtain information from law enforcement files 

relating to a criminal prosecution when disclosing the 

information would infringe the privacy interests of third 

parties. See Dep’t of Justice v. Reporters Committee for 

Freedom of the Press, 489 U.S. 749, 761-71, 780 (1989); see 

also Nat’l Archives & Records Admin. v. Favish, 541 U.S. 

157, 173-75 (2004); Martin v. Dep’t of Justice, 488 F.3d 446, 

457 (D.C. Cir. 2007); Boyd v. Criminal Division of the Dep’t 

of Justice, 475 F.3d 381, 387-88 (D.C. Cir. 2007); Oguaju v. 

United States, 378 F.3d 1115, 1116-17 (D.C. Cir. 2004); 

Schrecker v. Dep’t of Justice, 349 F.3d 657, 666 (D.C. Cir. 

2003); Spirko v. U.S. Postal Serv., 147 F.3d 992, 998-99 

(D.C. Cir. 1998); Computer Professionals for Social

Responsibility v. U.S. Secret Serv., 72 F.3d 897, 903-05 (D.C. 

Cir. 1996); Nation Magazine v. U.S. Customs Service, 71 F.3d 

885, 896 (D.C. Cir. 1995); Davis v. Dep’t of Justice, 968 F.2d 

1276, 1281-82 (D.C. Cir. 1992); SafeCard Servs., Inc. v. SEC, 

926 F.2d 1197, 1205-06 (D.C. Cir. 1991); Fitzgibbon v. CIA, 

911 F.2d 755, 767-68 (D.C. Cir. 1990); King v. Dep’t of 

Justice, 830 F.2d 210, 233-35 (D.C. Cir. 1987); Fund for 

Constitutional Gov’t v. Nat’l Archives & Records Serv., 656 

F.2d 856, 861-66 (D.C. Cir. 1981); Baez v. Dep’t of Justice, 

647 F.2d 1328, 1337-39 (D.C. Cir. 1980); cf. Morgan v. Dep’t 

of Justice, 923 F.2d 195, 198 (D.C. Cir. 1991); North v. 

Walsh, 881 F.2d 1088, 1094 (D.C. Cir. 1989).

As this Court has said, “privacy interests are particularly 

difficult to overcome when law enforcement information 
3

regarding third parties is implicated.” Martin, 488 F.3d at 

457. Moreover, “the Supreme Court has made clear that 

requests for such third party information are strongly 

disfavored.” Id. In the context of an Exemption 7(C) 

challenge, the Supreme Court has stated that “disclosure of 

records regarding private citizens, identifiable by name, is not 

what the framers of the FOIA had in mind.” Reporters 

Committee, 489 U.S. at 765. As the courts have explained,

the public interest in ensuring that innocent people are not 

wrongly convicted or subjected to prosecutorial or 

investigative misconduct is properly vindicated in the 

ordinary criminal and civil litigation processes – where

personal privacy is not as weighty a consideration as it is 

under FOIA. See FED. R. CRIM. P. 16; Brady v. Maryland, 

373 U.S. 83, 86 (1963); see also FED. R. CIV. P. 26; Bivens v. 

Six Unknown Named Agents of Federal Bureau of Narcotics, 

403 U.S. 388 (1971); 42 U.S.C. § 1983.

Roth argues that the requested documents would show 

that the Federal Government withheld exculpatory 

information and violated its Brady obligations with respect to 

Bower’s 1984 Texas state-court trial. But the claimed Brady 

violation has been addressed in Bower’s criminal and habeas 

proceedings and, as our precedents have consistently 

indicated, does not suffice to override the privacy interests of 

third parties named in such law enforcement files. See, e.g., 

Martin, 488 F.3d at 457; Boyd, 475 F.3d at 387-88; Oguaju, 

378 F.3d at 1117. 

Roth also suggests – albeit only in passing – that this case 

is not controlled by the settled FOIA precedents because those 

cases are about proving the defendant’s innocence at trial. 

Here, according to Roth, the requested documents, in 

conjunction with the witnesses who emerged after trial, could 

demonstrate Bower’s innocence during the ongoing postconviction proceedings. The majority opinion has accepted 

Roth’s argument and distinguished (i) the public interest in 
4

showing a criminal defendant’s innocence at trial from (ii) the 

public interest in showing a criminal defendant’s innocence 

during a post-conviction proceeding. In my view, that 

distinction makes little sense under Exemption 7(C) and finds 

no support in the case law. For purposes of FOIA, Roth’s 

post-conviction theory does not differ in any meaningful way 

from the Brady-based theory that our precedents have 

consistently rejected. After all, if FOIA does not require 

disclosure of private information that could exonerate a man 

at trial, how can FOIA require disclosure of private 

information that could exonerate a man in a post-conviction 

habeas or clemency proceeding? The majority opinion 

cannot persuasively answer that question.

The FOIA precedents set forth a clear juridical principle

– namely, that FOIA ordinarily cannot be used to obtain 

private information from law enforcement files relating to a 

criminal prosecution. Consistent with the statutory text –

which refers to disclosures that “could reasonably be expected

to constitute an unwarranted invasion of personal privacy,” 5 

U.S.C. § 552(b)(7)(C) (emphasis added) – the Supreme Court 

has specifically promoted the use of categorical rules in FOIA 

Exemption 7(C) cases. See Dep’t of Justice v. Landano, 508 

U.S. 165, 177 (1993) (Reporters Committee’s “approval of a 

categorical approach was based in part on the phrase ‘could 

reasonably be expected to,’ which Congress adopted in 1986 

to ease the Government’s burden of invoking Exemption 7 

and to replace a focus on the effect of a particular disclosure 

with a standard of reasonableness . . . based on an objective 

test’”) (internal quotation marks and citations omitted; 

alteration in original). The Court has stated that “categorical 

decisions may be appropriate and individual circumstances 

disregarded when a case fits into a genus in which the balance 

characteristically tips in one direction.” Reporters 

Committee, 489 U.S. at 776; cf. NLRB v. Robbins Tire & 

Rubber Co., 437 U.S. 214, 236 (1978) (similarly approving 

generic categorical approach under Exemption 7(A)). In such 
5

instances, “a disparity on the scales of justice holds for a class 

of cases without regard to individual circumstances; the 

standard virtues of bright-line rules are thus present, and the 

difficulties attendant to ad hoc adjudication may be avoided.” 

Reporters Committee, 489 U.S. at 780. 

To borrow the words of Reporters Committee, the 

balance tips – and characteristically will tip – in favor of nondisclosure when a requester seeks private information about 

third parties contained in files related to a criminal 

prosecution. The privacy interests of third parties who are 

named in law enforcement documents are invariably strong. 

Indeed, the majority opinion acknowledges that those interests

are “significant.” Maj. Op. at 16. And the public interest in 

accurately assessing criminal liability or exposing 

prosecutorial or investigative misconduct is invariably 

lessened in the FOIA context by the existence of traditional 

criminal and civil litigation processes where that public 

interest is directly addressed. Therefore, the Reporters 

Committee categorical approach is appropriate here.

The majority opinion argues that the case law has not 

specifically articulated such a categorical principle. It is true 

that the precedents have not set forth expansive reasoning in

rejecting arguments of the kind advanced by Roth here, no 

doubt because the argument is ultimately insufficient as a 

matter of FOIA law. Here, because the majority opinion is 

charting a new course, I have attempted to explain the 

essential reasoning that undergirds those many decisions. The 

majority opinion counters that the FOIA public interest is not 

lessened merely because there are other avenues for obtaining 

information from the government relating to a criminal 

prosecution. But what reason other than the existence of 

those alternative forums could support our long line of cases 

rejecting FOIA requests for private information in law 

enforcement files related to a criminal prosecution? After all, 

considered in isolation from the other criminal and civil 
6

processes, the public interest in ensuring that an innocent 

person is not wrongly imprisoned is extraordinarily high, yet 

it is routinely deemed insufficient in Exemption 7(C) cases. 

The reason is evident: Other criminal and civil processes 

exist to vindicate that public interest. The majority opinion 

purports to accept the holdings of our prior cases rejecting 

claims like Roth’s, but it rejects their essential rationale and 

offers no other rationale to explain those decisions. 

For present purposes, the key point is that there is a long 

line of precedent rejecting the kind of argument advanced 

here by Roth. Those cases have established in common-lawlike fashion a principle that FOIA ordinarily does not 

authorize disclosure when a requester seeks private

information about third parties contained in files related to a 

criminal prosecution. Recognizing that principle is consistent 

with – indeed encouraged by – Reporters Committee.

Reaching farther afield, the majority opinion also cites a 

non-7(C) case saying that the availability of discovery does 

not defeat a FOIA claim “where no exemption otherwise 

applies.” Maj. Op. at 34 (citing Morgan v. Dep’t of Justice, 

923 F.2d 195, 198 (D.C. Cir. 1991)). Of course that’s true. 

But that’s not the issue here. The question here concerns how 

to weigh public and privacy interests in 7(C) cases. In the 

Exemption 7(C) context, the cases establish that the asserted 

public interest in determining a defendant’s guilt is lessened 

because that interest is vindicated in the ordinary criminal and 

civil processes.

In the end, the majority opinion distinguishes away a 

slew of applicable precedents by decreeing a new death 

penalty exception that overrides Exemption 7(C)’s protection 

of personal privacy. The result in this FOIA case, by the 

majority opinion’s own admission, would be different if 

Bower were serving a sentence of life imprisonment. Of 

course, the information sought here goes to Bower’s guilt, not 
7

to his sentence. The majority opinion’s reasoning, which 

rests on Bower’s death sentence, is thus an odd fit with the 

nature of the information sought. Beyond that, the major 

problem with the majority opinion’s approach is that there is 

no statutory or precedential support for creating a new death 

penalty exception to the important privacy protection in 

Exemption 7(C). Creating any such exception is a decision 

properly left to Congress and the Executive Branch. In 

justifying its new death penalty exception, the majority 

opinion lobs a rhetorical volley, saying that the opposing 

position would allow the government to deliberately and 

knowingly kill an innocent man. That is wildly inaccurate. 

The traditional processes such as habeas, clemency, and the 

like are constitutionally and statutorily designed to prevent 

such a travesty of justice. As the Supreme Court said, “the 

framers of the FOIA” did not have in mind “disclosure of 

records regarding private citizens, identifiable by name.” 

Reporters Committee, 489 U.S. at 765. Moreover, if federal 

government officials are violating their legal and ethical 

disclosure responsibilities in the criminal justice and 

clemency forums, it is unclear why the majority opinion 

thinks those same officials would suddenly comply with 

FOIA orders. 

Here as elsewhere, general or categorical principles can 

be overcome in extraordinary cases. Cf. Herrera v. Collins, 

506 U.S. 390, 425-26 (1993) (O’Connor, J., concurring). In 

this case, however, Roth seeks to undermine Bower’s 

conviction and show alleged prosecutorial misconduct –

interests that have been routinely asserted and rejected in 

FOIA cases as insufficient to override Exemption 7(C)’s 

protection for personal privacy. See, e.g., Martin, 488 F.3d at 

457; Boyd, 475 F.3d at 387-88; Oguaju, 378 F.3d at 1116-17; 

Spirko, 147 F.3d at 998-99; Computer Professionals for 

Social Responsibility, 72 F.3d at 903-05. Claims of innocence 

and prosecutorial or investigative misconduct of one form or 

another – failing to disclose relevant evidence, pressuring 
8

witnesses, encouraging or allowing false testimony, for 

example – are standard arguments by the defense in federal 

criminal prosecutions. The criminal process is designed to 

expose and resolve such charges and counter-charges. And 

civil Bivens and § 1983 actions are available as well for 

citizens to seek redress for prosecutorial or investigative 

misconduct. FOIA, by contrast, was not designed to require 

public disclosure of private information in order to serve 

those purposes.

* * *

In other forums, Bower has rightly been able to obtain 

discovery from the Government and challenge his guilt. Our 

legal system accommodates pre-conviction claims of 

innocence through the criminal trial itself. And our legal 

system accommodates post-conviction claims of innocence –

including those based on newly discovered evidence –

through new trial motions, appeals, habeas proceedings, the 

executive clemency process, and in recent times DNA 

procedures such as the process that Texas has employed in 

Bower’s case. See generally Herrera, 506 U.S. at 411-16. If 

there are questions about Bower’s guilt, those are the proper 

forums for resolving those questions. I believe it essential for

judicial and executive officials to ensure – particularly in 

death penalty cases – that claims of innocence based on newly 

discovered evidence are properly explored. But given FOIA’s 

critical protection for personal privacy and the many other 

processes available for vindicating a defendant’s innocence 

claim, the Supreme Court and this Court have held that FOIA 

ordinarily is not an appropriate tool to obtain information 

from law enforcement files relating to a criminal prosecution 

when disclosure would infringe the privacy interests of third 

parties. That settled principle controls this case.

I respectfully dissent from the majority opinion’s 

decision regarding Exemption 7(C).