FOIA Request

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7^th Circuit Court of Appeals

Case Name: Dustin John Higgs v. United States Park Police

Case No.: 18-2826; 18-2937

Officials: WOOD, Chief Judge, and BAUER and ROVNER, Circuit Judges.

Focus: FOIA Request

More than two decades ago, Dustin Higgs kidnapped and murdered three women. Because the murders took place in the Patuxent National Wildlife Refuge, a federal property in Maryland, he was tried in federal court for these crimes. He was convicted and sentenced to death. See United States v. Higgs, 353 F.3d 281 (4th Cir. 2003). Higgs, now housed on the federal death row within the U.S. Penitentiary at Terre Haute, Indiana, has insisted for years that the government failed to turn over certain exculpatory evidence to which he is entitled under Brady v. Maryland, 373 U.S. 83 (1963). Along the way, in 2012, an investigator from the Federal Community Defender Office for the Eastern District of Pennsylvania filed a request under the Freedom of Information Act (FOIA) with the U.S. Park Police, seeking a complete copy of everything pertaining to the homicide convictions. The Park Police produced some information and then referred the request to the Federal Bureau of Investigation (among other agencies).

This case arises out of that FOIA request. Dissatisfied with the government’s response, Higgs filed a complaint in the Southern District of Indiana, where USP Terre Haute is located, seeking information that the FBI had refused to turn over. Some aspects of Higgs’s demands have since been resolved, but he primarily has contended in his lawsuit that the FBI’s decisions to redact or withhold information under FOIA Exemptions 6, 7(C), and 7(D), 5 U.S.C. § 552(b)(6), (b)(7)(C), and (b)(7)(D), were not warranted. Exemptions (6) and 7(C) cover materials that would invade personal privacy, while Exemption 7(D) covers information that “could reasonably be expected to disclose the identity of a confidential source, … and, in the case of a record or information compiled by criminal law enforcement authority in the course of a criminal investigation … information furnished by a confidential source … .”

Upon the parties’ cross-motions for summary judgment, the district court split the difference. It concluded that the FBI had properly withheld certain documents under Exemption 7(D), but that the FBI did not justify the invocation of Exemption 7(C). The court accordingly held that the FBI had to release all of the personal information at issue, including names of still-living people, contact information, reports of interviews, fingerprints, and rap sheets for third parties. It gave little weight to the privacy interests of the people concerned, in part because the murders took place 22 years earlier and in part because it thought that the FBI had not met its burden of proof on that point. That failure of proof meant, the court decided, that Higgs was entitled to the documents.

The government has appealed from the district court’s judgment insofar as it ordered disclosure under Exemptions 6 and 7(C); Higgs has cross-appealed from the court’s refusal to order disclosure of the materials under Exemption 7(D). We conclude that the district court erred when it found that the public interest prevailed over the privacy interests of the persons involved, and thus it should have refused disclosure of those documents pursuant to Exemptions 6 and 7(C). With respect to Exemption 7(D) materials, we agree with the district court’s result (though not necessarily all of its reasoning) and affirm. The net effect is that this case is over: the government is not obliged to turn over any of these additional materials under FOIA.

Reversed in part. Affirmed in part.

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.