Town of Winthrop v. Federal Aviation Administration

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 08-1703
TOWN OF WINTHROP,
Plaintiff, Appellant,
v.
FEDERAL AVIATION ADMINISTRATION,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge]
Before
Torruella, Stahl and Howard,
Circuit Judges.
Peter L. Koff, with whom Engel & Schultz, LLP was on brief,
for appellant.
Anton P. Giedt, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, was on brief, for
appellee.
May 8, 2009

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In deciding the petition for review, we denied the Town's 1
request to supplement the administrative record with the forty-six
documents at issue in this appeal because they were the subject of
a "separate proceeding," which eventually ripened into this appeal.
Town of Winthrop, 535 F.3d at 15.
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HOWARD, Circuit Judge. This appeal marks the last throes
of an extended dispute between the Town of Winthrop and the Federal
Aviation Administration regarding a proposed expansion of Logan
International Airport in Boston. See Town of Winthrop v. Fed.
Aviation Admin., 535 F.3d 1 (1st Cir. 2008)(denying Town's petition
for review of agency's decision to authorize construction of
additional taxiway at Logan). In the case sub judice, the Town
challenges the district court's determination that the FAA could
withhold certain documents in response to the Town's Freedom of
Information Act request.
The Town initially brought its FOIA suit in federal
district court hoping to obtain documents pertinent to its petition
for review against the FAA, which has now been concluded. In that 1
vein, the Town sought expedited rulings so that it would be able to
incorporate any information gleaned from its FOIA request into its
opening brief in the petition for review then pending before this
court. As a result, the parties sought -- and the district court
agreed to undertake -- an unusual procedure that yielded a prompt
ruling and the release of nine additional documents. The Town now
claims that it did not agree to the expedited procedure employed in
the district court and that the district court's FOIA rulings were
substantively incorrect. We affirm.

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We have suggested without deciding that exhaustion, or at 2
least constructive exhaustion, of administrative remedies is
required to initiate FOIA proceedings in this circuit. See
Providence Journal Co. v. FBI, 602 F.2d 1010, 1011 (1st Cir. 1979).
Because, as explained below, the Town eventually exhausted its
administrative remedies, we need not decide whether any such
exhaustion was required in this case.
A practice has developed whereby any agency claiming an 3
exemption under FOIA is required to furnish the requester a Vaughn
index, which requires a correlation of the information that an
agency decides to withhold with the particular FOIA exemption and
the agency's justification for withholding the document. State of
Maine v. U.S. Dep't of Interior, 298 F.3d 60, 65 (1st Cir. 2002)
(citing Maynard v. CIA, 986 F.2d 547, 556 (1st Cir. 1993)). The
index takes its name from Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir.
1973).
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This portion of the controversy began on August 2, 2007,
when the Town submitted two FOIA requests, see 5 U.S.C. § 552,
requesting FAA records relating to the contemplated expansion of
the centerfield taxiway at Logan. On October 4, 2007, the agency
released approximately one hundred pages of records and claimed
exemptions supporting non-disclosure for several other documents.
5 U.S.C. §552(b). Without taking an administrative appeal,
exhaustion of which some courts require prior to filing suit,2
e.g., Ruotolo v. Dep't of Justice, Tax Div., 53 F.3d 4, 8 (2d Cir.
1996); Taylor v. Appleton, 30 F.3d 1365, 1367-68 (11th Cir. 1994);
Spannaus v. U.S. Dep't of Justice, 824 F.2d 52, 58 (D.C. Cir.
1987), the Town filed suit in the district court seeking all or a
portion of the documents the agency withheld. The district court
held an expedited status hearing and issued an order directing the
FAA to produce a Vaughn index.3
The parties agreed that the agency would produce the
Vaughn index, but also that the Town would first exhaust its

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administrative remedies before pressing its suit in the district
court. Consequently, the Town voluntarily dismissed its suit
without prejudice and appealed administratively. In response, the
agency discretionarily released an additional thirty-seven
documents and reaffirmed its decision to withhold ninety-two
documents.
Having exhausted its administrative remedies, the Town
filed a second action in the district court challenging the
agency's final decision to withhold the ninety-two documents. In
particular, the Town moved for another expedited status conference
and further requested that the agency be instructed to arrive at
this conference with all of the withheld documents to facilitate
the district court's in camera inspection of the documents, should
the court agree to undertake such an inspection. In its request
for urgent relief, the Town stressed that it was seeking the
withheld documents because of their potential relevance to its
petition for review of the agency's airport expansion decision then
pending in this court. The Town further noted that its opening
brief in this court was due approximately two weeks from the date
it filed this second action in the district court.
Against this backdrop, the parties convened for a status
conference on December 12, 2007, approximately one week before the
Town was required to file its opening brief in connection with the
petition for review. Acknowledging the Town's desire for immediate
access to documents, as well as the Town’s objections to the
agency's proffered Vaughn index, the district court suggested that

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Discretionary in camera review enables the court to conduct a 4
first-hand examination of the documents to determine whether the
government appropriately claimed an exception from disclosure with
respect to such documents. Maynard, 985 F.2d at 557. An in camera
review can provide the district court with an adequate factual
basis to determine whether the government has successfully carried
its burden and proved that claimed exemptions apply to particular
documents. Id. at 558 (citing Irons v. Bell, 596 F.2d 468, 471
(1st Cir. 1979)).
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the parties attempt to resolve their differences over as many
documents as possible and to narrow the issues for the court to
decide. The parties agreed to this course of action.
Over the course of several hours, the parties reviewed
the agency's Vaughn index, with the agency lawyer augmenting the
index by responding to questions from the Town's counsel, and with
respect to certain documents, providing additional information
acquired by reference to a particular document itself. At the end
of this process, the agency agreed to release an additional thirty-
seven documents. As a result, only fifty-five documents remained
in controversy.
The parties then returned to the district court for
further proceedings. The district court, though not required to do
so, see NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 224
(1978); Maynard, 986 F.2d at 557 (citing Church of Scientology v.
U.S. Dep't of the Army, 611 F.2d 738, 742 (9th Cir. 1979)), agreed
to conduct an in camera review of the remaining documents. As a 4
result of this in camera review, the district court concluded that
an additional nine documents were not exempt from disclosure and
should be released, but found the remaining documents all subject
to the § 5 FOIA exemption, see 5 U.S.C. § 552(b)(5), and therefore

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concluded that they were properly withheld. The agency promptly
produced the nine documents that the district court found were not
exempt from disclosure.
The conditions of and procedure undertaken in the
district court's in camera review form the nub of the present
controversy. In view of the Town's desire to obtain as many
documents as possible prior to filing its appellate brief in the
petition for review proceedings, the district court decided to
forego briefing on the scope of the § 5 FOIA exemptions claimed by
the agency and accepted the contested documents into evidence. At
the time it did so, the court stated, "I take it the parties have
no objection to my offering this advice to you. In other words, I
am ruling on these documents as either being work product, you
know, privilege[d] or not privilege[d]." (emphasis added). Moments
later, the court again confirmed that the parties had no objection
to its "making that ruling."
The government agreed that it had no objection, and other
than expressing concern about the adequacy of the agency's Vaughn
index, the Town also voiced no objection to the court’s proposed
approach. Although the Town did discuss nuances of the § 5
exemptions from FOIA, in response to questions from the court the
Town continued to maintain that it was primarily interested in an
expedited decision in the hope of acquiring additional documents
for use in connection with the petition for review.
With this background, we briefly review the well-known
legal standards and policy considerations underlying FOIA. The

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statute was enacted to "expose the operations of federal agencies
'to the light of public scrutiny,'" Carpenter v. U.S. Dep't of
Justice, 470 F.3d 434, 437 (1st Cir. 2006) (quoting Dep't of the
Air Force v. Rose, 425 U.S. 352, 372 (1979)), and therefore the
statute embodies a principle of broad disclosure, Church of
Scientology, Int'l v. U.S. Dep't of Justice, 30 F.3d 224, 228 (1st
Cir. 1994). Consequently, we construe the nine statutory
exemptions from disclosure contained in FOIA narrowly, Dep't of
Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 8
(2001), with any doubts resolved in favor of disclosure, see
Carpenter, 460 F.3d at 438 (citing U.S. Dep't of Justice v. Julian,
468 U.S. 1, 8 (1988)); see also Trentadue v. Integrity Comm., 501
F.3d 1215, 1226 (10th Cir. 2007). Furthermore, the government
bears the burden of proving that any withheld materials fall within
one of the statutorily enumerated exemptions to FOIA. Carpenter,
470 F.3d at 438 (citing 5 U.S.C. § 552; Orion Research, Inc. v.
EPA, 615 F.2d 551, 553 (1st Cir. 1980)).
In this case, the agency relied on exemption 5, which
exempts from disclosure "inter-agency or intra-agency memorandums
or letters which would not be available by law to a party other
than an agency in litigation with the agency." 5 U.S.C. §
552(b)(5); see also State of Maine, 298 F.3d at 66. The Supreme
Court has held that this exemption is coextensive with civil
discovery privileges, including inter alia, the attorney-client
privilege, the attorney work-product privilege, and the

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At least partly as a result of the good offices of the 5
district court, it appears the agency released an additional
thirty-seven documents to the Town at the status conference.
Moreover, after its in camera review, the district court ordered
that an additional nine documents be released to the Town, and the
agency provided those documents at the close of the hearing.
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deliberative process privilege. See Klamath Water Users, 532 U.S.
at 8; see also State of Maine, 298 F.3d at 66.
Normally, an agency seeking to claim an exemption from
FOIA prepares a Vaughn index and supplements the index with
affidavit(s) and/or testimony that can be presented in camera or
not. See Maynard, 986 F.2d at 556-58. In addition, the district
court has the option, but not the obligation, to review the
underlying documents in camera. See supra note 4. In short, by
any road it chooses, the district court must, employing a de novo
review, find an adequate factual basis to support the agency's
assertion of the exemption. Maynard, 986 F.2d at 557 n.11.
Though perhaps unorthodox and expedited, the district
court's disposition of this case was balanced and appropriate; any
departure from normal procedures was undertaken with the consent of
both parties. Similarly, any deficiency in the district court's
analysis was occasioned by the court's herculean efforts to provide
the Town with what it most desired: access to as many additional
documents as possible in advance of the filing of its brief in the
petition for review. Basic principles of fairness and
reasonableness counsel against permitting the Town, after having
benefitted from the district court's expedited rulings, to 5
complain about the process it agreed to.

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In its brief, the Town contends that at the December 12 status 6
conference, the district court merely agreed to give the parties
"advice" about the applicability of any FOIA exemptions, and that
the district court would "analyze the merits" of the litigation at
some later date. Although this interpretation has some support in
the record, our reading of the record is that the district court
believed that it was to rule on the availability of exemptions.
Moreover, given the Town's repeated acquiescence in this procedure,
it has abandoned, or at least forfeited, any objection as to the
outcome of the procedure.
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We therefore conclude that, on balance, by agreeing to
expedited procedures in the district court, the Town either has
knowingly abandoned its right to complain about those procedures
(as the government essentially argues), see United States v.
Garrasteguy, 559 F.3d 34, 41 (1st Cir. 2009) (citing United States
v. Walker (1st Cir. 2008)); accord Puleio v. Dist. Att'y for the E.
Dist., 504 N.E.2d 354 (Mass. 1987), or, at a minimum, has 6
forfeited any objection to them.
As the Town failed to lodge a timely objection to the
district court's procedure, our review is for plain error only.
Chestnut v. City of Lowell, 305 F.3d 18, 20 (1st Cir. 2002) (en
banc). Plain error will result in reversal only if the district
court committed an obvious and clear error that affected
substantial rights, and if left unremedied would call into question
the fairness, integrity, or public reputation of the judicial
proceedings. Nat'l Union Fire Ins. Co. of Pittsburgh, PA v. West
Lake Academy, 548 F.3d 8, 22 (1st Cir. 2008) (citing Smith v. Kmart
Corp., 177 F.3d 19, 26 (1st Cir. 1999)).
We discern no such deficiency in the district court's
disposition of this case. As explained above, the district court

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We also note that even if the Town had not agreed up front to 7
the expedited process that the district court fashioned to decide
this case, its later objection to this procedure was untimely.
Even though it had agreed to inform the district court if it had
any objections to the closure of the case by December 17, 2007, the
Town did not file any such objection until December 26, 2007.
Because the district judge denied the Town's motion for
reconsideration and the subsequent motion for a hearing on the
merits with margin orders, it is unclear whether the court gave any
effect to the Town's tardiness. Had the district court done so,
this would have been an independently appropriate ground on which
to deny the Town any relief. Cf. Stonkus v. City of Brockton
School Dep't., 322 F.3d 97, 100-01 (1st Cir. 2003) (upholding
district court's refusal to permit party to file untimely
opposition to summary judgment and upholding grant of unopposed
motion for summary judgment).
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is vested with the discretionary authority to review documents in
camera, and although it could have been clearer about the
consequences of its in camera review, there is sufficient record
support to conclude that the Town was aware of the district court's
intentions, and that it acquiesced in the court's plan of action.
For example, as noted above, the Town did not object to the
district court's statement that it would make rulings as to whether
the withheld documents were privileged and therefore exempt from
disclosure. Moreover, after the district court made its rulings,
the Town promised to notify the court by December 17, 2007 if it
had any objections to the court's closing the case. The fact that 7
the Town made this commitment reinforces the conclusion that the
Town was aware that the district court had issued dispositive
rulings that would stand, unless the Town affirmatively acted to
reinvigorate the case. In these circumstances, we cannot conclude
that upholding the district court's handling of these proceedings

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The names of all recipients is necessary because that 8
information may aid in determining whether the attorney-client
privilege has been waived as the result of disclosure of the
contents of any privileged communication to third parties. See
United States v. Bay State Ambulance and Hosp. Rental Serv., Inc.,
874 F.2d 20, 27-28 (1st Cir. 1989).
Similarly, for documents to which the agency claims the
attorney work-product privilege applies, it has not identified --
in the Vaughn index or elsewhere -- "the litigation for which the
document was created," which is required in order for the privilege
to attach. State of Maine, 298 F.3d at 69.
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would result in a miscarriage of justice or impugn the fairness,
integrity, or public reputation of these proceedings.
We conclude by noting that although the Town must live
with the concessions that it made in return for an expedited
disposition of its FOIA action, another requestor would not
necessarily be bound by the Town's concessions. We can envision a
future requestor being entitled to fully litigate its FOIA claims.
In that regard, we note our initial assessment -- based on our
limited inspection -- that the Vaughn index submitted by the FAA
appears overly scanty and insufficient to provide a factual basis
for sustaining the agency's claimed exemptions. See Maynard, 986
F.2d at 557 n.11.
For example, the agency claims that document number
eighty-six is subject to the attorney-client privilege. The index
describes the document as "E-mail from Bettina Peronti, FAA to
Thomas Davidson, FAA et al re: centerfield taxiway meeting with
John Donnelly, FAA Legal Counsel." The index entry includes
neither a description of the length of the document, nor the
identities of all of its recipients. Moreover, it is unclear from 8
the e-mail whether either Ms. Peronti, the author of the document,

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We have not exhaustively examined all of the documents, as 9
such an examination is not necessary to our decision.
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or Mr. Davidson, the only listed recipient of the document, is an
attorney.
More concerning is the fact that this document does not
appear to meet the standard for privileged attorney-client
communications. The document is an email describing a meeting at
which Massport proposed a number of mitigation measures with
respect to the centerfield taxiway, and it includes the reactions
of various participants to the proposals. Although John Donnelly,
an agency attorney, was present in the meeting, the document does
not describe any of his views, and legal issues are barely -- if at
all -- mentioned in the document. We require more for the
attorney-client privilege to attach. See State of Maine, 298 F.3d
at 71 (party asserting privilege must show (1) that he was a
client; (2) that the attorney acted as a lawyer in connection with
the document; (3) that the document relates to facts communicated
for the purpose of a legal opinion; and (4) that the privilege has
not been waived). Here, it is unclear whether Mr. Donnelly was
acting as a lawyer, and it is even less clear that the purpose of
the meeting was to procure a legal opinion.
Thus, we have some unease with respect to the quality of
the agency's Vaughn index, and the merits of at least one of the
district court's rulings. It is possible that should an unrelated 9
party request similar documents, the outcome could be different.

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Nevertheless, in the case at hand, the district court
made monumental efforts to accommodate the Town's emergency request
for access to documents, and in return, the Town conceded its right
to a more deliberate and thorough determination of the issues. In
these circumstances, it would be unfair to both the district court
and the government, which complied with the district court's
decision and disclosed nine additional documents, to upend the
balance struck by the court and agreed to by the parties below.
Therefore the decision of the district court is affirmed.

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