UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


COTTONE, SALVATORE

v.

RENO, JANET


98-5497a

D.C. Cir. 1999


*	*	*


Wald, Circuit Judge: The principal question in this case is  whether
wiretapped recordings, otherwise exempt from dis- closure under the
Freedom of Information Act ("FOIA"),  must nevertheless be released
when a requester precisely  identifies specific tapes that have been
introduced into evi- dence and played in open court during a public
criminal trial.  We hold that unless the government can rebut such a
specific  showing by demonstrating that the recordings have since 
been destroyed or otherwise removed from the public record,  they must
be released under FOIA. We accordingly reverse  the judgment of the
district court to the contrary. Moreover,  because the district court
neglected to address whether the  government properly withheld other
requested tape record- ings, we must remand for further proceedings.


I. Background


Arising from a criminal investigation of the Colombian and  Sicilian
Mafia's involvement in the Northern Virginia-  Washington, D.C. drug
trade, the government successfully  prosecuted appellant Salvatore
Cottone on fourteen counts of  drug and racketeering-related offenses.
See United States v.  Cottone, 928 F.2d 400, 1991 WL 34996 (4th Cir.
1991) (per  curiam) (table). Among the evidence that the government 
marshaled during Cottone's trial were telephone conversa- tions
recorded by surreptitious wiretap and recorded conver- sations
procured by undercover agents wearing hidden re- corders during
face-to-face meetings with Cottone. In open  court, before the jury
and the public gallery, the government  played these tapes and
introduced them into evidence. As is  the practice when tapes are
played at trial, however, the court  reporter did not transcribe the
contents of the recorded  conversations into the trial transcript.
Rather, with each  tape that the government played, the reporter
indicated in  the transcript the precise date and time that the
conversation  had been recorded, the unique identification number


to that tape at trial, and noted that it had been "played for  the
Court and jury." See, e.g., App. 104-06 (Tape T-101  recorded on Sept.
12, 1986 at 10:32 a.m.); App. 117 (Tape T- 102 recorded on Sept. 12,
1986 at 5:02 p.m.); App. 126-27  (Tape T-105 recorded on Sept. 30,
1986 at 5:45 p.m.); App.  129-31 (Tape T-107 recorded on Sept. 30,
1986 at 8:34 p.m.);  App. 144-45 (Tape T-108 recorded on January 12,
1987 at  12:36 p.m.). At no point during the trial or thereafter did
the  government move to place these tapes under seal.


By letter dated January 27, 1992, Cottone tendered a FOIA  request to
the Federal Bureau of Investigation ("FBI") for  copies of all
documents and tape recordings cross-referenced  to his name, including
those tapes that the government had  played for the jury during his
trial. Although the FBI  eventually produced over 1300 pages of
responsive docu- ments, it disclosed in part only two tape recordings,
each one  heavily redacted pursuant to Exemption 7(C), which insulates
 from mandatory disclosure records or information compiled  for law
enforcement purposes that, if produced, "could rea- sonably be
expected to constitute an unwarranted invasion of  privacy." 5 U.S.C.
s 552(b)(7)(C). Invoking Exemption 3,  which protects information
"specifically exempted from disclo- sure" by another statute, 5 U.S.C.
s 552(b)(3), the FBI  withheld in full all other responsive tape
recordings. Unlike  the two redacted tapes that the FBI produced,
these remain- ing conversations had been obtained by wiretap pursuant
to  Title III of the Omnibus Crime Control and Safe Streets Act  of
1968, Pub. L. No. 90-351, 82 Stat. 197 (codified as amended  at 18
U.S.C. ss 2510-2521 (1994 & Supp. IV 1998)) ("Title  III"), which, we
have explained on several occasions, "falls  squarely within the scope
of Exemption 3 because its lan- guage clearly evinces Congress' intent
that intercepted mate- rial, except in a few well-defined
circumstances, remain se- cret." Davis v. United States Dep't of
Justice, 968 F.2d 1276,  1280-81 (D.C. Cir. 1992) (quotation omitted);
accord Lam  Lek Chong v. United States Drug Enforcement Admin., 929 


Unsatisfied with the FBI's response to his FOIA request,  Cottone
brought suit in the district court. With respect to 


the two tapes that the FBI had redacted pursuant to Exemp- tion 7(C),
he argued that neither tape jeopardized any legiti- mate privacy
interest because those persons identified on the  tapes had either
consented to disclosure or had died. As for  the remaining tapes
putatively protected from disclosure  under Exemption 3, Cottone
essentially maintained that the  government had waived its Exemption 3
claim once it placed  those tapes into the public domain by playing
them to the  jury and admitting them into evidence during his criminal
 trial. In its initial opinion adjudicating the parties' cross-
motions for summary judgment and then again in its opinion  disposing
of Cottone's motion for reconsideration, the district  court rejected
Cottone's waiver argument. Although ac- knowledging that otherwise
exempt materials lose their privi- leged status under FOIA once they
find their way into the  public domain, the district court found that
Cottone had not  met his burden of "showing that there is a permanent
record  of the exact portion" of the tapes that he requested. Cottone 
v. FBI, Civ. No. 94-1598 (JR), slip op. at 3 (D.D.C. Oct. 7,  1998).
Having determined that the FBI properly invoked  Exemption 3 to
withhold the wiretapped recordings, the  district court granted the
agency's motion for summary judg- ment and dismissed the case. In
neither of its opinions,  however, did the court address whether the
FBI properly  invoked Exemption 7(C) to redact most of the two
disclosed  tapes. To this date, the FBI has yet to submit an agency 
affidavit and Vaughn index justifying its Exemption 7(C) 


II. Discussion


A. The Exemption 3 Withholdings


Two propositions, each firmly anchored in our prior FOIA  decisions,
must be set forth at the outset. The first is that,  subject to an
important, albeit narrow exception, the wire- tapped recordings
obtained pursuant to Title III that Cottone  requested are ordinarily
exempt from disclosure under Ex- emption 3, 5 U.S.C. s 552(b)(3). See
Davis, 968 F.2d at  1280-81; Lam Lek Chong, 929 F.2d at 733-34. The


proposition, however, is the exception that qualifies this oth- erwise
absolute rule. Under our public-domain doctrine,  materials normally
immunized from disclosure under FOIA  lose their protective cloak once
disclosed and preserved in a  permanent public record. See Niagara
Mohawk Power Corp.  v. United States Dep't of Energy, 169 F.3d 16, 19
(D.C. Cir.  1999) (Exemption 4); Public Citizen v. Department of
State,  11 F.3d 198, 201-03 (D.C. Cir. 1993) (Exemption 1); Davis, 
968 F.2d at 1276 (Exemptions 3 & 7(C)); Afshar v. Depart- ment of
State, 702 F.2d 1125, 1130-34 (D.C. Cir. 1983) (Ex- emptions 1 & 3).
For as we have recently observed, "the  logic of FOIA" mandates that
where information requested  "is truly public, then enforcement of an
exemption cannot  fulfill its purposes." Niagara Mohawk, 169 F.3d at
19; see  also Davis, 968 F.2d at 1279 ("We have held, however, that 
the government cannot rely on an otherwise valid exemption  claim to
justify withholding information that has been 'official- ly
acknowledged' or is in the 'public domain.' ").


With these established principles of law in mind, we turn  now to
examine whether the ordinarily exempt Title III- wiretapped recordings
that Cottone requested entered the  public domain and thereby shed
their Exemption 3 protection.  On this issue, the party advocating
disclosure bears the initial  burden of production; for were it
otherwise, the government  would face the daunting task of proving a
negative: that  requested information had not been previously
disclosed. See  Niagara Mohawk, 169 F.3d at 19; Davis, 968 F.2d at
1279.  To satisfy his burden, Cottone must "point[ ] to specific 
information in the public domain that appears to duplicate  that being
withheld." Afshar, 702 F.2d at 1130.


This Cottone has done. As a threshold matter, our deci- sions
construing the venerable common-law right to inspect  and copy
judicial records make it clear that audio tapes enter  the public
domain once played and received into evidence.  See, e.g., In re
National Broadcasting Co., 653 F.2d 609, 614  (D.C. Cir. 1981); United
States v. Mitchell, 551 F.2d 1252,  1258 & n.21 (D.C. Cir. 1976),
rev'd on other grounds sub nom.  Nixon v. Warner Communications, Inc.,
435 U.S. 589 (1978).  We have long observed "the general rule ... that


public event, and what transpires in the court room is public 
property." In re National Broadcasting Co., 653 F.2d at 614  (internal
quotations and brackets omitted); accord Craig v.  Harney, 331 U.S.
367, 374 (1947). Under this rule, we have  recognized that even after
a trial has concluded, members of  the press may obtain copies of
surreptitiously recorded audio  tapes that have been played in court
and received into  evidence. See In re National Broadcasting Co., 653
F.2d at  614-16. Therefore, until destroyed or placed under seal, 
tapes played in open court and admitted into evidence--no  less than
the court reporter's transcript, the parties' briefs,  and the judge's
orders and opinions--remain a part of the  public domain.


While our cases leave little doubt that audio tapes aired  publicly in
open court become a part of the public domain, the  question remains
whether Cottone has satisfied his "burden  of showing that there is a
permanent public record of the  exact portions he wishes." Davis, 968
F.2d at 1280 (emphasis  added). The government maintains, and the
district court  agreed, that our decision in Davis is dispositive.
True, the  plaintiff in Davis, like Cottone, claimed that the public-
domain doctrine vitiated Exemption 3 protection for Title III-
wiretapped recordings that had been previously played in  open court
during a criminal trial. But there the similarities  end. We rejected
the plaintiff's waiver argument in Davis  because he could not
identify which specific tapes had been  played during trial. Although
the prosecutors had compiled a  "play list" of 163 excerpted tape
recordings, not all were used,  "and apparently no one, including the
court reporter, kept  any official record of the conversations played
for the jury."  Id. at 1278. Under these circumstances, we concluded
that it  simply was not enough "to show--as [Davis] ha[d] done--that 
some of the tapes were played to shift the burden to the  government."
Id. at 1280. Indeed, to have compelled disclo- sure in the face of
such uncertainty would have ignored the  "injury that disclosure might
cause innocent third parties,"  who we believed, "should not suffer
because neither the  government nor [the requester] can establish
whether refer- ences to them on the tapes are available elsewhere."


Unlike the situation we confronted in Davis, however,  Cottone has
demonstrated precisely which recorded conversa- tions were played in
open court. Looking at the official  transcript of Cottone's trial,
there are at least five audio tapes  that the court reporter
specifically noted had been "played for  the Court and jury" and
subsequently admitted into evidence.  And for each of these, the trial
transcript clearly indicates the  precise date and time that the
particular conversation was  recorded and the unique identification
number assigned to the  tape. See, e.g., App. 104-06 (Tape T-101
recorded on Sept.  12, 1986 at 10:32 a.m.); App. 117 (Tape T-102
recorded on  Sept. 12, 1986 at 5:02 p.m.); App. 126-27 (Tape T-105
record- ed on Sept. 30, 1986 at 5:45 p.m.); App. 129-31 (Tape T-107 
recorded on Sept. 30, 1986 at 8:34 p.m.); App. 144-45 (Tape  T-108
recorded on January 12, 1987 at 12:36 p.m.). With  such a specific
showing, we are not left to guess which tapes  have entered the public
domain and which have not. In turn,  we may carefully tailor the FBI's
disclosure duty to ensure  that we do not jeopardize the legitimate
privacy interests of  innocent third parties whose names may be
mentioned on  other Title III tapes never played during trial.
Cottone,  therefore, has discharged his burden of production by point-
ing to specific tapes which, having been played in open court  and
received into evidence, reside in the public domain and  mirror


To be sure, we suggested in Davis that, to satisfy the  burden of
production in public-domain cases, the FOIA re- quester may have to
produce a "hard copy" version of what  he requests. See Davis, 968
F.2d at 1280. Yet by no means  did Davis purport to establish a
uniform, inflexible rule  requiring every public-domain claim to be
substantiated with  a hard copy simulacrum of the sought-after
material. Of  course, it will very often be the case that some type of
hard  copy facsimile will be the only practicable way for a FOIA 
requester to demonstrate that the specific information he has 
solicited has indeed circulated into the public domain. And  this is
as it should be; for while the "logic of FOIA" postu- lates that an
exemption can serve no purpose once informa- tion--including sensitive


comes public, Niagara Mohawk, 169 F.3d at 19, we must be  confident
that the information sought is truly public and that  the requester
receive no more than what is publicly available  before we find a
waiver. See Fitzgibbon v. CIA, 911 F.2d 755,  765 (D.C. Cir. 1990);
Afshar, 702 F.2d at 1130-32; Military  Audit Project v. Casey, 656
F.2d 724, 752 (D.C. Cir. 1981).  But here it would be an empty
formalism to insist that  Cottone produce a hard-copy, verbatim
transcription of the  audio tapes to prove which tapes were played at
trial when he  has already produced a certified transcript from his
trial that  indicates precisely which tapes were, in fact, played.
Phrased  in the parlance of our public-domain cases, Cottone has 
"point[ed] to specific information in the public domain that  appears
to duplicate that being withheld." Afshar, 702 F.2d  at 1130.


Once the FOIA requester has carried his burden of produc- tion, it is
up to the government, if it so chooses, to rebut the  plaintiff's
proof by demonstrating that the specific tapes or  records identified
have since been destroyed, placed under  seal, or otherwise removed
from the public domain. The  FBI, however, has made no such showing
here. Nothing in  the record suggests that the government, either
during or  after Cottone's trial, moved to place under seal the tapes
that  it played in court. Nor is there any indication that the tapes 
Cottone has identified have since been destroyed. Indeed,  the FBI
operates under a statutory mandate to preserve all  Title
III-wiretapped recordings for ten years. See 18 U.S.C.  s 2518(8)(a).
Therefore, because Cottone has identified spe- cific audio tapes in
the public domain that duplicate what he  has requested, and because
the FBI has not rebutted this  showing, we conclude that Exemption 3
is inapplicable and  reverse the judgment of the district court


Our decision, however, extends only to those tapes that  were played in
open court. To the extent that Cottone seeks  Title III-wiretapped
recordings that were not played in court  but were simply provided to
his counsel as Brady material,  Exemption 3 remains inviolate. This is
so because a constitu- tionally compelled disclosure to a single party
simply does not  enter the public domain. Moreover, even were these
tapes 


somehow understood to reside in the public domain, Cottone  certainly
has not satisfied his burden of production and shown  which specific
tapes the government tendered to his attorney  during pretrial
discovery. Therefore, insofar as Cottone  seeks any Title
III-wiretapped tapes that were not played in  open court and received
into evidence, the judgment of the  district court is affirmed.


B. The Exemption 7(C) Withholdings


In his cross-motion for summary judgment Cottone argued  that the FBI
had improperly invoked Exemption 7(C) to  redact virtually all
portions of the two audio tapes that the  agency had released. For
some reason, the district court  never ventured beyond Cottone's
Exemption 3 objections,  dismissing the case without evaluating the
propriety of the  FBI's Exemption 7(C) claim. Notwithstanding the
district  court's oversight, on appeal the FBI maintains that the case
 was properly dismissed anyway since, by its own determina- tion, it
validly applied Exemption 7(C).


Even were we inclined to review the agency's Exemption  7(C) redactions
without first remanding to the district court,  the present record
would preclude us from meaningfully  exercising our power of judicial
review. To justify its invoca- tion of a particular exemption, the
agency must append a  declaration to its motion for summary judgment
that "pro- vide[s] detailed and specific information demonstrating
'that  material withheld is logically within the domain of the exemp-
tion claimed.' " Campbell v. United States Dep't of Justice,  164 F.3d
20, 30 (D.C. Cir. 1999) (quoting King v. United  States Dep't of
Justice, 830 F.2d 210, 217 (D.C. Cir. 1987));  see also Vaughn v.
Rosen, 484 F.2d 820, 827 (D.C. Cir. 1973).  This the FBI has
completely failed to do. All that the agency  can point to is an
unsworn cover letter sent to Cottone from  an official with the FBI
that conclusorily asserts that "[t]he  long pauses constitute exempt
information, much of it per- taining to third parties." App. 181. We,
therefore, must  remand this matter to the district court, which
should instruct  the FBI to prepare a Vaughn index and declaration
that  "supply a relatively detailed justification, specifically


ing the reasons why a particular exemption is relevant and  correlating
those claims with the particular part of [the]  withheld [tape] to
which they apply." King, 830 F.2d at 224  (internal quotation


III. Conclusion


For the foregoing reasons, we reverse the district court's  judgment
upholding the FBI's decision to withhold under  Exemption 3 audio
tapes that Cottone has precisely identified  in the public domain, and
remand with instructions to compel  the FBI to release those tapes. In
all other respects, we  affirm the district court's judgment that
Exemption 3 applies  to Title III-wiretapped conversations. On remand,
the dis- trict court should also order the FBI to prepare a Vaughn 
index justifying its redactions under Exemption 7(C).


So ordered.