# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 25, 2011 Decided June 28, 2011

No. 09-5428

A NTHONY C. R OTH
, ON BEHALF OF L ESTER L. B OWER
, J R
., A PPELLANT

v.

U NITED S TATES D EPARTMENT OF J USTICE
, A PPELLEE

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: R OGERS , T ATEL , and K AVANAUGH
, Circuit Judges

.

Opinion for the Court filed by Circuit Judge T ATEL

.2

Opinion concurring in part a nd dissenting in part filed by Circuit Judge K AVANAUGH

.

T ATEL
, Circuit Judge : In this Freedom of Information Act case, a Texas death-row inmate seeks information from the Federal Bureau of Investig ation 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, neithe r 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), wh ich permits agencies to
withhold information contained in law-enforcement records to protect against unwarranted i nvasions 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 inform ation that could corroborate
a death-row inmate’s claim of i nnocence, and (2) that interest outweighs the three men’s privac y interest in having the FBI not disclose whether it posse sses 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 dist rict court’s rejection of appellant’s other arguments.

I.

Appellant Anthony Roth repres ents Lester Leroy Bower, Jr., who is on death row in Te xas 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 info rmation concerning the FBI’s investigation of the murders a nd about four individuals who
Bower claims are the real killers. Although Bower was prosecuted by the state of Texas, the FBI, believing that the3

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 fede ral agency, upon request, to make ‘promptly available to an y person’ any ‘records’ so long as the request ‘reasonably de scribes 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 philo sophy of full agency disclosure,” it “provides for several exemptions under which an agency may deny disclosure of the requested records.” Id. (internal quotation marks omitt ed). The agency “bears the burden of establishing the appli cability” of any exemption it invokes, and “even if [the] agen cy 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 disclo sure of which would constitute a clearly unwarranted invasi on of personal privacy”; Exemption 7(C), covering “reco rds 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 author it[ies] in the course of a criminal investigation” that “could reasonably be expected to disclose the identity of a conf idential 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 fa cts underlying Bower’s capitalmurder convictions. On the evening of October 8, 1983, law
enforcement authorities discove red the bodies of Bobby Glen Tate, Ronald Mays, Philip G ood, 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, subsoni c, hollow-point bullets manufactured by Julio Fiocchi. Id. at 890. Tests run on those bullets and their shell casings i ndicated 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 f ound 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 ma de 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 investigator s that “he had never bought an ultra light,
that he had not been in Sher man 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, th at he did not know where the5

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 deni ed 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 in struction manual for a Ruger .22-caliber pistol; information on silencers; a fo rm 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 pist ol on February 12, 1982, and
then sold it to himself on March 1, 1982. Id. In Bower’s garage, authorities discovered tw o 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 reve aled 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-soni c 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 Bo wer’s efforts to overturn his
sentence and conviction on dire ct appeal and through a state habeas petition failed, he file d a federal habeas petition under6

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 ot her 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 inef fective assistance of counsel
at which Bower tes tified—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 th e 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 ar ound 3:00 p.m. on October 8. Id. at 26. After agreeing to buy the ultr alight, 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 th e 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 atto rney 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 afte r the shootings, Tate’s widow
called the local sheriff’s offi ce 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 single7

business card, later lost by la w 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 swor n statements indicating that the murders were committed not by Bower, but instead by four Oklahoma drug dealers: Br ett (“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 Langfor d 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 se at and stated that he had killed some people the day befo re in Sherman in a drug deal
that went bad.” Id. About a week later, the witness testified, “she overheard [Langford] a nd another man named ‘Ches’ bragging about the ki llings 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 conversati ons from late 1983 through 1985
in which “her husband and his friends, including Ches and Lynn, talk[ed] about fo ur 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 deni ed Bower’s habeas petition,
Bower filed a motion to alter or amend the judgment, arguing (among other things) that the cour t 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 ha beas attorneys first filed a8

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 an other request, which they subsequently asked the FBI to expedite after the Eastern District of Texas granted Bowe r’s request for an evidentiary hearing. But the FBI failed to re lease any responsive materials until January 31, 2001—after the di strict court had concluded its evidentiary hearing but before it had issued its decision denying Bower’s habeas pe tition. The FBI’s 2001 FOIA response included approximately 1500 pages, far more than the 850 released in 1990, and many of the previ ously released documents reflected fewer redactions. According to Roth, the FBI’s 2001 FOIA response reveal ed five types of material, exculpatory evidence not prev iously made available to
Bower’s trial or habeas counsel:

1. Tate was involved in illega l 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 ammuniti on 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 . . . Bowe r . . . in order to compare the lead bullets’ ‘elemental analysis’ with the bullets
taken from the victims’ bodi es,” the Assistant United9

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 prosecuti on’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 elimina ting “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 sour ces,” 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 moti on to alter or amend the judgment, the district court c oncluded that Bo wer had failed
to show that his Brady rights had been violated. The court
observed that Bower’s trial atto rney admitted that he was
aware of rumors that “some of the victims were engaged in
nefarious activities such as co ck 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 c oncluded, the FBI’s failure to disclose the evidence its agents collected regarding Tate’s
illicit activities “const itute[d] harmless error.” Id. at 15. The district court also determined that (1) the fact that the10

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 “harml ess 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 obt ain 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 num ber as those purchased by
Bower.

Although the district court denied Bower’s habeas petition, it granted Bower a certif icate 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 “certifi cate of appealability,” which may be issued “only if the a pplicant has made a substantial showing of the denial of a c onstitutional 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 co urt emphasized that the FBI
documents contained no “evidenc e linking the murders to the11

victims’ alleged illegal activity.” Id. Instead, the documents merely summarized investigative theories of which Bower’s
counsel “was aware . . . bu t 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 eviden ce 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 Bowe r’s counsel was well aware of,
none of the FBI files contra dict[ed] the circumstantial evidence used by the st ate 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 hi s 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 doc uments 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 contai ning 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 existe nce of the requested records. The response is named for the Hughes Glomar Explorer , a ship used in a classified Cent ral Intelligence Agency project
“to raise a sunken Soviet subm arine 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/~nsarchi v/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 a lleged efforts to convince media outlets not to make public what th ey 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 lexico n. 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 a nd 7(C), which, as explained above, exempt certain governme nt documents from disclosure to protect the privacy interests of third parties. See 5 U.S.C. § 552(b)(6), (7)(C). Th e FBI later processed Roth’s request regarding Leckie after Roth pr ovided evidence that Leckie had died, and Roth has dropped his request fo r information13

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 sec ond FOIA request—for records contained in particular FBI f iles—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 FB I, 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” su ch a source. 5 U.S.C. § 552(b)(7)(D).

The FBI provided the di strict court with a Vaughn index and then a supplemental Vaughn index that described the withheld information and explai ned its reasons for refusing to
disclose it. See Vaughn v. Rosen , 484 F.2d 820, 826–28 (D.C. Cir. 1973) (requiring agencies re sisting FOIA disclosure to index the information they ar e withholding and to provide non-conclusory justifications fo r 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) (p ermitting a district court
in a FOIA case to exam ine withheld documents in camera ). Importantly, since the FBI provided a Glomar response to Roth’s FOIA request for in formation conc erning 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. In14

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 im plicate Gordon, Langford, or
Ford.

Ruling on the FBI’s motion fo r summary judgment, the
district court determined that the Glomar response was proper and that, with only a few excep tions, 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 satisfi ed 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 sour ce. 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 exemptio ns to justify withholding
information contained in the documents submitted for in

camera review. In particular, it so ught to protect the privacy
interests of “local law enfor cement employees; third parties merely mentioned in FBI record s; state, local, and non-FBI federal government personnel; thir d parties of investigative15

interest; third parties who provi ded information to the FBI; and commercial institution pe rsonnel [i.e., individuals working for retailers, manufact urers, 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 Exem ption 6, which requires proof of a “clearly unwarranted invasion of personal privacy.” U.S. Dep’t of Justice v. Reporters Comm. fo r 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 th e 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 th at any undisclose d records it might have regarding Gor don, Langford, or Ford were compiled for such purposes. As Roth correctly notes, “FBI
records are not law enforcemen t 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 re cords generated by a law enforcement investigation a nd 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 rational16

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 re garding 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 point s out, by stating that “he is seeking ‘documents relating to the persons that have been identified as the real killers,’ ” Roth has essentially confirmedthat 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 di strict 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, La ngford, or Ford, were compiled for law enforcement purposes. Roth , 656 F. Supp. 2d at 161 n.6, 166. As a result, we shall fo cus on Exemption 7(C) rather than Exemption 6 since it is the broader of the two.

To determine whether disclo sure “could reasonably be expected to constitute an unwarranted invasion of personal privacy” for purposes of Exem ption 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 targets17

of law-enforcement investiga tions, but also “witnesses, informants, and . . . investiga ting agents” have a “substantial interest” in ensuring that their relationship to the investigations “r emains secret.” Id. (internal quotation marks omitted); see also SafeCard Se rvs., 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 fo r two reasons: (1) more than a quarter century has passed since the 1983 murders, and (2) since Gordon, Langford , and Ford have si gnificant criminal records, they would likely suffer less embarrassment and reputational harm from being associated with the FBI’s investigation of the murders th an would ordinary, law-abiding citizens. Especially given the pa rticularly heinous nature of the 1983 murders, however, neith er 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 di minish” individuals’ privacy interests in not being associated with McCarthy-era investigations, then certainly i ndividuals continue to have a significant interest in not being associated with an investigation into a brutal quadruple homicide committed less than thirty years ago. Furthermor e, Roth’s argument that the privacy interests of Gor don, Langford, and Ford are diminished by their criminal re cords 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 substa ntial 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 “t he court was unable to find any case holding that a prisoner has fewer privacy rights in disclosure of private informa tion, other than for information made public during the criminal proceedings, than the rest of18

us”). But even if individuals wi th criminal records might in some cases have a reduced pr ivacy interest in not being
associated with criminal activ ity 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 presente d 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 design ed to guard against.

Having determined that Roth ’s FOIA requests implicate substantial privacy interests pr otected by Exem ption 7(C), we turn to the central question in this case: precisely what public
interest would be furthered th rough 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, disclo sure 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 ca se, does not dispute
that the Assistant United States Attorney who participated in Bower’s capital murder trial ha d a duty not only to learn of

any Brady material in the FBI’s possession, but also to
disclose it to Bo wer’s trial counsel. See Kyles v. Whitley , 514 U.S. 419, 437 (1995) (“[T]he indivi dual prosecutor has a duty19

to learn of any favorable evid ence known to the others acting on the government’s behalf in the case, including the police.”). Second, and more genera lly, 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 th e district court’s decision and
receives scant atten tion in the government’s appellate brief,

see Appellee’s Br. 23–24 (suggesti ng that Roth failed to articulate the second pu blic interest at the district-court level), we believe that Roth adequately raised the issue both in the
district court and here. In the di strict court, Roth argued that the “[p]roduction of the documen ts 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 a lleges that the “FBI continues
to withhold and redact decades-o ld documents that may help to prevent the execution of an innocent man” and asserts, “The public has a powerful in terest in unde rstanding the procedures and governmental ac tions 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 deat h penalty in Texas, the State’s potential for executing innocent persons, and the possible withholding of exculpat ory 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, excu lpatory evidence recognized in Brady protects a defendant’s right to a fair trial, see Brady

, 373 U.S. at 87, the de termination of whet her information is “material” for purposes of Brady focuses on how the
information relates to other in formation 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 eviden ce, but whether in its absence he received a fair trial, underst ood 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. Al though 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 material s 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 fram ework” for evaluating the government’s post-trial di sclosure obligations. Dist. Attorney’s Office for the Thir d 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 in21

knowing whether the FBI is wi thholding 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 indivi duals sentenced to death. See Death Penalty Info. Ctr., The Innocence List

, http://www.deathpenaltyinfo.or g/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 ar ticles, 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 Texa s 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 inno cent people”); Tim Madigan, Witness Says Condemned Man Isn’t Re sponsible 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 punish ment should not affect” our analysis under Exemption 7( C). Appellee’s Br. 37. We disagree. The fact that Bowe r has been sentenced to the ultimate punishment strengthens the public’s interest in22

knowing whether the FBI’s file s 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 FO IA Exemption 5, not Exemption 7(C)—that the fact th at the FOIA requester was a capital prisoner had “no beari ng 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 . . . inte r-agency or intra-agency
memorandums or letters which w ould not be available by law to a party other than an agency in litigation with the agency”). But this statement merely reit erated 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 th e 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 requi res nothing more than that our legal analysis remain una ffected by the fact that this case was brought by a lawyer re presenting Bower instead of by a party with no relation to Bower, such as a reporter, academic, or individual citizen si mply 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 disclo se information withheld under Exemption 7(C). We can easily di spose of Roth’s challenge to the FBI’s withholding of inform ation from the documents that
we and the district court reviewed in camera . Turning first to23

the public’s intere st in revealing Brady violations, we highly doubt that any of the informa tion 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 na med in the documents outweigh any public interest in disclo sure. At most, the documents
contain information that one mi ght consider to lie near the hazy borderline separating mate rial 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 take n to put the whole case in such a different light as to undermine confidence in the verdict,” an inquiry that is di fficult 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 st ake in the release of the requested information is “irre levant” 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 substitu te 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 know ing whether the federal government engaged in blatant Brady violations in a capital case, we are confident that non e 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. Ci r. 2007) (stating, in a FOIA case in which a defendant convicted of non-capital drug24

and weapons offenses sought records that he claimed might
reveal “ Brady -related misconduct,” that a “single instance of

a Brady violation . . . would not su ffice to show a pattern of government wrongdoing as could overcome the significant privacy interest at stake”).

With respect to the second pub lic 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 co rroborate Bower’s claim that Leckie, Gordon, Langford, and Fo rd were the true killers. True, as Roth argues, “it is entirely possible that the importance of the withheld docum ents would only be clear to
one who has extensive knowle dge of the Bo wer trial, sentencing, and habeas proceed ings.” Appellant’s Opening Br. 39. But we can only weigh th e public and pr ivate interests
at stake based on the record before us, and it was Roth’s responsibility to provide the dist rict court and this Court with the information necessary to pe rform that balancing. Based on the information presented to us , we conclude that the FBI acted appropriately in redacti ng information un der 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 re sponsive to a FOIA request and provide specific, non-conclu sory justifications for25

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 exis tence or nonexist ence of [the requested] records falls w ithin a FOIA exemption.” Id. Since merely acknowledging that the FBI has information regarding Gordon, Langford, and Ford woul d tend to associate them with criminal activity, thus impinging on their privacy, the
FBI’s Glomar response, absent a countervailing public
interest in disclosu re, was appropriate under Exemption 7(C). Where, as here, the asserted public interest is the revealing of government misconduct, the Su preme Court’s decision in
National Archives & Record s 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 in terest in having the FBI neither confirm nor deny the ex istence 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 know ing whether the federal government violated its Brady obligations at the time of
Bower’s trial. As ev idence 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, the26

documents produced in 2001 indica ted 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 th e FBI decided against going ahead with a planned comparison between the bullets taken
from the victims’ bodies and bu llets 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 Ro th 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 suppor ted Mr. Bower’s defense and, in Plaintiff’s view, constituted material, exculpatory
information that should have b een 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 duri ng 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 eviden ce demonstrating that the information produced in 2001 had not previously been disclosed, it should have done so in the district court. See27

Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986) (“[A] party seeking summary judgmen t always bears the initial responsibility of informing the dist rict court of the basis for its motion, and identifying those po rtions of ‘the pleadings, depositions, answers to interro gatories, and admissions on file, together with the affidavits, if any,’ which it believes demonstrate the absence of a genui ne 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 at torney. Def.’s Reply & Opp’n
to Pl.’s Cross Mot. 14. Had the government raised this challenge in the district cour t, Roth might have responded with an affidavit stating that the information pr oduced 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 availabl e to Bower’s trial counsel). But having failed to raise the argum ent 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 rel eased in 2001 had not been provided to Bower’s trial counsel.

Even under this assump tion, however, Roth’s argument—that the public ha s a significant interest in knowing whether the federal government failed to disclose Brady material regarding Gordon, Langford, or Ford—still28

falters at the Favish threshold. Roth argue s (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 Fi fth Circuit’s decision affirming
the denial of Bower’s federal habeas petition. See Bower , 497 F.3d at 476–77. Reviewing the ve ry FBI disclosures Roth
contends constituted Brady material, the Fifth Circuit
concluded that the informa tion “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) (d eferring to a district court’s decision in a separate habeas proceeding that the information sought by a FO IA requester was “not Brady material”).

Having disposed of Roth’s ar gument that he is entitled to further disclosures based on the pu blic’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 i nnocence. To demonstrate that this interest is likely to be advanced by disclosing whether the
FBI’s files contain records re garding Gordon, Langford, or Ford, Roth must show that a reasonable person could believe that the following might be tr ue: (1) that the Oklahoma drug dealers were the real killers, and (2) that the FBI is withholding information that c ould corroborate that theory.
See Favish , 541 U.S. at 174. In our vi ew, Roth has made both showings.

Since Bower’s trial, two witnesses—Langford’s exgirlfriend and Leckie’s wi dow—have provided sworn statements implicating the Oklahoma drug dealers. When29

combined with the evidence in the FBI’s 2001 FOIA response
that one of the murder victim s may have been involved with illegal gambling and drug dea ling 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. W ith respect to the second showing Roth must make—that a reasonable person could believe that the FBI might be withholding informat ion that could corroborate
Bower’s claim of i nnocence—there can be no doubt that the FBI in the past has failed to di sclose information favorable to Bower upon request. The agen cy’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 so me of this previously
undisclosed information to bolst er 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 exculpat ory 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 La ngford’s ex-girlfriend because a
state habeas court in Texas f ound that an a ffidavit setting forth her story bore “no i ndicia 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 meaningf ul 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 generally30

considered forfeited). In addi tion, although Roth has not filed in this litigation the affidavits of Langford’s ex-girlfriend and Leckie’s widow, the decision de nying Bower’s federal habeas petition describes the testim ony 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 L eckie’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 wa ive 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 wi thholding 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 explai ned 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 sh own that a reasonable person could believe that the FBI migh t be withholding information
that could corroborate Bowe r’s claim of innocence.31

Since Roth has satisfied his obligations under Favish , we must proceed to balance the pub lic 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 an y 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 refu sing 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 em phasize that the FBI need
not disclose whether it has in formation about the three men that is unrelated to its investigation into the 1983 murders. The public’s interest is in kno wing whether the FBI’s files
contain information that coul d corroborate Bower’s claim of innocence, not in knowing all in formation the FBI may have about the three men. That said, th e 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 exampl e, if in the course of its investigation the FBI obtained th e 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 record s 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 must32

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 FO IA cases of identifying the
records it has withheld and st ating 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 pub lic’s interest in revealing Brady
violations “does not suffice to override the privacy interests of third parties named in . . . la w 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 un covering the government’s post-trial withholdin g of information that could
corroborate a convicted defenda nt’s claim of innocence, id. at 4; (3) therefore, our case law supports a ca tegorical rule that
the latter interest cannot outwe igh privacy interests protected by Exemption 7(C), see id. The syllogism fails at the first premise. Despite the dissent’s a ssumption 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 (n oting 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 in dividual 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 gove rnment violated Bower’s Brady rights and the public’s interest in learning whether the FBI is withholding informa tion 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 question33

of whether a categorical rule bars FOIA requesters from seeking Brady material implicating third-party privacy interests. Instead, we discusse d 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 privat e citizen’s criminal history record, the disclosure of whic h the Court concluded would do “little or nothing” to further FOIA’s purpose of informing the public about “what the[] governme nt is up to.” 489 U.S. at 773–75 (internal quotation marks omitted); see also id. at 780 (“[W]e hold as a categorical matt er that a third party’s request
for law enforcement records or information about a private citizen can reasonably be expect ed 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 h appens 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, La ngford, or Ford to its investigation of the quadruple mu rder 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 innocen ce of a man whom it helped34

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 “characteristi cally 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 prosecutori al or investigative misconduct is invariably lessened in the FO IA 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 se nse 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 individua l from obtaining information through FOIA where no exem ption otherwise applies. See Morgan v. U.S. Dep’t of Justice , 923 F.2d 195, 198 (D.C. Cir. 1991). “Indeed, there are situa tions in whic h FOIA will permit access to information th at would not be available through discovery.” Id. (internal quotation marks omitted). Furthermore, the “criminal a nd civil litigation processes” discussed by the dissent woul d be unavailable to a FOIA requester who, unlike Roth, has no relationship with Bower. Dissenting Op. at 5. The dissen t’s approach thus appears
inconsistent with the fundament al FOIA principle that “the35

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 cour se 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 partic ular “case fits into a genus in which the balance [between publ ic 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 pr oducing absurd consequences that we highly doubt Congress intended. For example, under the dissent’s rationale, it appe ars 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 c onclusively show that the Oklahoma drug dealers were the tr ue killers. We decline to adopt a rule so at odds with “FOIA’s prodisclosure purpose.”
Favish , 541 U.S. at 174. Instead, we ha ve engaged in the balancing contemplated by Ex emption 7(C), concluding that in the circumstances of this case, where the FOIA requester has surmounted the fairly substa ntial 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 [t hird 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 unde r Exemption 7(D). This issue36

relates only to information re dacted from the documents we
have reviewed in camera . It has no implications for the FBI’s
Glomar response, which the agen cy sought to justify only under Exemption 7(C).

Where, as here, the records at issue were “compiled by
criminal law enforcement author it[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 conf idential 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 inve stigation do so on a confidential
basis. See U.S. Dep’t of Ju stice 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 exis ts, courts consider a number
of factors to determine whet her the source nonetheless “spoke with an understanding that th e communication would remain
confidential.” Id. at 172. These factors include “the character of the crime at issue,” “the s ource’s relation to the crime,”
whether the source re ceived 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 quot ation 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,” pr esent 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 a nd 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 wit hheld information came from or could identify a confidential s ource. Appellant’s Opening Br. 44. Under our case law, agencies invoking a FOIA exemption must provide a specific, deta iled 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 justifica tions whenever possible.” Lykins v. U.S. Dep’t of Justice , 725 F.2d 1455, 1463 (D.C. Cir. 1984). Requiring agencies to pr ovide 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 litigati on 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 extens ive 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 ma y supplement its38

explanation by making th e documents available for in camera
review. Id. at 1463–64.

Here, the FBI has generall y 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 Exem ption 7(D) with respect to four categories of sources: local law enforcement agencies;
informants who have been assigned confidential source symbol numbers; third par ties without source symbol numbers who nonetheless provi ded information under an express assurance of confiden tiality; 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 expectati on of confidentia lity because the
limited amount of information th at 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 confidentia l informants who report
information to the FBI on a re gular basis pursuant to an ‘express’ assurance of confiden tiality.” First Hardy Decl. ¶
83. Given that Roth fails to dire ctly 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 sour ce-symbol-numbe r informants
mentioned in the in camera documents. See Mays , 234 F.3d at 1328–29 (upholding the FBI’s wit hholding of information furnished by a “coded informan t” based on an affidavit “describ[ing] the DEA’s standard practice of identifying39

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 th at most of these individuals provided information under an express or implied assurance of confidentiality. The documen ts the parties have labeled “Roth/Bower 98–99, 111, and 477” convey information provided by two sources who “s pecifically 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 advi sed” the FBI of certain information, thus indicating that the source had an expectation of confidentiality. With resp ect to Roth/Bower 129, the FBI’s supplemental Vaughn index explains that the source discussed in the document “provided in formation to the FBI for a number of years as a confidentia l informant with an express promise of confiden tiality.” Second Hardy Decl. ¶ 20. Finally,
the Vaughn index states that the source discussed in Roth/Bower 254 and 256 “pro vided specific detailed information that is singular in nature concerning the criminal activities involving [B ower], his associat es, and/or other subjects of [the FBI’s] inves tigation.” First Hardy Decl. ¶ 81. Although this statement is quite conclusory, the FBI might well have had difficulty rev ealing much more information without running the risk of divulging the source’s identity. Having reviewed Ro th/Bower 254 and 256 in camera , we40

conclude that given the brut al nature of the quadruple
homicide and the source’s relati onship with at least some of the victims, the source likely pr ovided 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 explana tion for redacting information under Exemption 7(D) fails to correspond to the information actually contained in the docum ents. 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 describe s information obtained by a local law enfor cement agent in an interview
with a named individual. The other problematic redactions appear in the carryover pa ragraph of Roth/Bower 112–13. Although the FBI has properly red acted information from this paragraph’s second sentence thatrelates 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 reda cted 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 Ex emptions 6 and 7(C) to withhold information implicating personal privacy interests. We leave the task of separati ng the wheat from the chaff to
the district court in the first instance. Specifically, the court should first determine which por tions of the two paragraphs41

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 segr egable portion of a record shall be provided to any person requesting such record after deletion of the portions wh ich are exempt under this subsection.”).

IV.

For the foregoing reasons, we affirm in part, reverse in part, and remand for further pro ceedings consistent with this opinion.

So ordered.K AVANAUGH
, Circuit Judge

, concurring in part and dissenting in part 1 :

In 1984, Lester Bower was convicted by a Texas state

court 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

w itnesses who came forward and suggested that four Oklahoma drug dealers were responsible for these murders.

Pursuant to Texas law, Bower is pursuing a post

conviction DNA proceeding in Texas state court in an attempt
to show his innocence. His executio n 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
relea se 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 priva te 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 unw arranted 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 fo r 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 , 4 89 U.S. 749, 761

- 71, 780 (1989); see also Nat ’ l Archives & Records Admin. v. Favish , 541 U.S. 157, 17 3

- 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, 11 16

- 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 Profe ssionals 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 interest s are particularly
difficult to overcome when law enforcement information3

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. I n 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 F ED

. R. C RIM

. P. 16; Brady v. Maryland

, 373 U.S. 8 3, 86 (1963); see also F ED

. R. C IV

. P. 26; Biven s 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 G overnment withheld exculpatory
info rmation 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 cas e 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 Bow er’s innocence during the ongoing post

conviction proceedings

. T he majority opinion has accepted Roth’s argument and distinguished (i) the public interest in4

showing a criminal defendant’s innocence at trial from (ii) the public interest in showing a crimi nal 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 meaningfu l 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 i nformation 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 wa s 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 such5

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 Commi ttee , 489 U.S. at 780.

To borrow the words of Reporters Committee , the balance tips

– and 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. 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 lit igation 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 oth er 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

e nforcement files related to a criminal prosecution? After all,
considered in isolation from the other criminal and civil6

processes, the public interest in ensuring that an innocent person is not wrongly imprisoned is extraordinarily high , yet it is routin ely 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

.

F or 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 establi shed in common

- law

like 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
wi th

– indeed e ncouraged by

– R eporters Committee

.

Reaching f a rther afield, t he 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. T he question here concerns how to weigh public and privacy interests in 7(C) cases

. In the Exemption 7(C) context

, the case s 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 distinguish es 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 servin g a sentence of life imprisonment. Of

course, the information sought here goes to Bower’s guilt, not7

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 de cision 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 inn ocent man. That is wildly inaccurate

. The traditional p rocesses such as habeas, clemency, and the
like a re 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, i f federal government officials are violating their legal and ethical
disclosure responsibilities in the criminal justice a nd clemency forums, it is unclear why the majority opinion
thinks those same officials would suddenly comply with
FOIA orders

.

H ere as elsewhere, general or categorical principles can be overcome in extraordinary cases. Cf. Herrera v. Collins

, 506 U.S. 390, 4 25

- 26 (1993) ( O’Connor , J., concurring). I n 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 ov erride 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, pressuring8

witnesses, encouraging or allowing false testimony, for example

– are standard arguments by the defense in federal
crimina l 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 contr ast, was not designed to require public disclosure of private information in order to serve those purposes.

* * *

I n 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 prot ection 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 re lating 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)

.