Dustin John Higgs v. United States Park Police

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 18-2826, 18-2937
D USTIN J OHN HIGGS,
Plaintiff-Appellee/Cross-Appellant,
v.
U NITED STATES P ARK POLICE ,
Defendant-Appellant/Cross-Appellee.
____________________
Appeals from the United States District Court for the
Southern District of Indiana, Terre Haute Division.
No. 2:16-cv-96-JMS-MJD — Jane Magnus-Stinson, Chief Judge.
____________________
A RGUED A PRIL 3, 2019 — D ECIDED A UGUST 13, 2019
____________________
Before WOOD, Chief Judge, and BAUER and R OVNER , Circuit
Judges.
WOOD, Chief Judge. 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.

-- 1 of 16 --

2 Nos. 18-2826, 18-2937
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 Dis-
trict of Pennsylvania filed a request under the Freedom of In-
formation Act (FOIA) with the U.S. Park Police, seeking a
complete copy of everything pertaining to the homicide con-
victions. The Park Police produced some information and
then referred the request to the Federal Bureau of Investiga-
tion (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 lo-
cated, seeking information that the FBI had refused to turn
over. Some aspects of Higgs’s demands have since been re-
solved, 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 Ex-
emption 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 crim-
inal law enforcement authority in the course of a criminal in-
vestigation … 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

-- 2 of 16 --

Nos. 18-2826, 18-2937 3
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 in-
terviews, 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 de-
cided, 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 per-
sons involved, and thus it should have refused disclosure of
those documents pursuant to Exemptions 6 and 7(C). With re-
spect 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.
I
We do not need to examine the details of the murders; in-
terested readers can find them in the Fourth Circuit’s opinion
on direct appeal, at 353 F.3d 281. It is enough to say that Higgs
and the three female victims had been at Higgs’s apartment,
and Higgs had an argument with one of them. The three
women walked out, but Higgs did not let matters rest. He
grabbed a handgun and convinced two of his friends, Willis
Haynes and Victor Gloria, to come with him. They quickly

-- 3 of 16 --

4 Nos. 18-2826, 18-2937
caught up with the women and ordered them into a car,
which the men drove to the Patuxent Refuge. There Higgs
gave Haynes the gun and ordered him to shoot all three
women. Haynes complied. The men left the bodies where
they fell and tossed the gun into a river. A motorist found the
bodies a few hours later and reported the murders to the Park
Police. On the scene, the police found a reference to Higgs in
one of the women’s day planners. The investigation dragged
on for three years, but ultimately Haynes and Higgs were in-
dicted by a federal grand jury for the Patuxent murders. Their
cases were severed for trial.
Both were convicted, but Haynes (the trigger man) was
sentenced to life in prison, while Higgs was sentenced to
death. Higgs’s conviction and sentence were affirmed on di-
rect appeal, 353 F.3d 281. He also failed in several other en-
deavors to secure relief: a motion for new trial, 95 F. App’x 37
(4th Cir. Apr. 20, 2004); a motion under 28 U.S.C. § 2255, 711
F. Supp. 2d 479 (D. Md. 2010), aff’d 663 F.3d 726 (4th Cir. 2011);
and a motion under Federal Rule of Civil Procedure 60(b) to
reopen the judgment denying his motion under section 2255,
193 F. Supp. 3d 495 (D. Md. 2016), certificate of appealability
denied, 2016 WL 6879939 (D. Md. Nov. 22, 2016), 4th Cir. No.
16-15 (Feb. 23, 2017), cert. denied, 138 S. Ct. 2572 (2018).
While those proceedings were underway, an investigator
for the Federal Defender who was representing Higgs sent a
FOIA request to the Park Police, asking for a “complete copy
of everything pertaining to” the Patuxent murders. In so do-
ing, counsel was following up on one of the Brady claims that
Higgs has been attempting to pursue. See Brady v. Maryland,
373 U.S. 83 (1963). Higgs is convinced that the government
suppressed information that would have impeached Gloria,

-- 4 of 16 --

Nos. 18-2826, 18-2937 5
one of its key witnesses—namely, evidence that he believes
would show that the federal prosecutors in his case per-
suaded Maryland state prosecutors to drop charges against
Gloria for an unrelated killing in exchange for Gloria’s testi-
mony incriminating Higgs. This contention has been thor-
oughly explored by the Maryland district court. That court
found that Higgs’s theory was “pure speculation” and that, in
any event, the jury already knew so much about Gloria’s crim-
inal history and self-interest that the supposedly suppressed
evidence would have been immaterial and cumulative even if
it existed. See 193 F. Supp. 3d at 505–06.
But the FOIA proceeding continued to move along not-
withstanding the fact that it paralleled Higgs’s other efforts.
After some back-and-forth about the cost of responding to the
request, counsel paid the amount due and waited. On No-
vember 7, 2013, the Park Police responded that it would not
release any documents. It invoked the three exemptions un-
der FOIA mentioned earlier: Exemptions 6 and 7(C), which
relate to personal privacy, and Exemption 7(D), which relates
to law-enforcement confidentiality. Counsel appealed, to no
avail, and so on March 16, 2016, Higgs filed the present suit.
Two months later, the Park Police informed Higgs that it had
located nine boxes of responsive documents. It had referred
those documents to other federal agencies and, based on their
advice, it concluded that it might be able to release 330 pages
and possibly more.
Matters reached a stalemate when, on August 16, 2016,
Higgs was told that the FBI (which held most of the records)
had asserted a “blanket” exemption to production. That was
a bit of an overstatement, since the FBI did produce a few
more documents on July 31, 2017. Shortly thereafter, the FBI

-- 5 of 16 --

6 Nos. 18-2826, 18-2937
furnished two declarations from FBI official David Hardy ex-
plaining the agency’s decision. It also took the following
steps:
 10 pages were released in full
 38 pages were released with redactions
 654 pages were withheld in full based on FOIA ex-
emptions
 36 pages were withheld as duplicates
Thus, of the 738 pages of documents, Higgs received all or
part of only 48.
Higgs filed a motion for summary judgment on December
13, 2017, seeking the rest of the records. He argued that
Hardy’s declarations were inadequate to justify the FBI’s de-
cisions, that the privacy interests on which the FBI relied were
attenuated at best (some people, for example, may have been
deceased), and that the FBI’s failure to file a so-called Vaughn
Index (named for the decision in Vaughn v. Rosen, 484 F.2d 820
(D.C. Cir. 1973)) made it impossible for him to track and eval-
uate the claimed exemptions.
After a telephonic hearing on March 6, 2018, the district
court ordered the government to file a complete Vaughn In-
dex. It did so the next day. Higgs moved again for summary
judgment, but this time the government argued that he had
failed to show a public interest in the requested disclosures.
In an order filed on June 25, 2018, the district court granted
Higgs’s motion in part and denied the rest.
For purposes of its ruling, the court grouped the contested
documents into three categories: (1) interview reports from
1999 and associated records (the 1999 Records); (2) National

-- 6 of 16 --

Nos. 18-2826, 18-2937 7
Crime Information Center (NCIC) reports; and (3) documents
that relate to rifling characteristics (the Ballistics Reports). The
1999 Records include internal FBI forms (FD-302’s) that me-
morialize FBI interviews; the forms cover four interviews of
confidential sources who provided information under an as-
surance of confidentiality. With Higgs’s consent, Exemption 6
dropped out of the case, since on this record it largely dupli-
cates Exemption 7(C).
The district court began by analyzing Exemption 7(D),
which protects confidential sources and information derived
from them. Higgs argued that the government bore the bur-
den of proving the expectation of confidentiality and asserted
that the Hardy declarations fell short. The court found that
the documents had been compiled for law-enforcement pur-
poses—the threshold requirement for both Exemption 7(C)
and 7(D). But more is needed, as the Supreme Court recog-
nized in U.S. Dep’t of Justice v. Landano, 508 U.S. 165 (1993).
Circumstantial evidence, such as the nature of the crime and
the source’s relation to it, will shed light on the particular
source’s expectation of confidentiality. The court found that
the government met its burden of showing that the docu-
ments withheld under Exemption 7(D) did satisfy those crite-
ria. In so ruling, it relied on the Hardy declarations, even
though Hardy did not say whether the sources were paid or
how they communicated with the FBI. It did not conduct its
own examination of the documents. The court also noted that
the fact that Higgs might have learned the identity of one or
more of the informants through the trial made no difference
to its ruling.
Turning to Exemption 7(C), the court noted that the parties
agreed that it had to balance the privacy interests of the

-- 7 of 16 --

8 Nos. 18-2826, 18-2937
affected persons against the public interest in disclosure of the
information, in order to decide whether that exemption ap-
plied. Baker v. FBI, 863 F.3d 682, 684 (7th Cir. 2017), citing U.S.
Dep’t of Defense v. Federal Labor Relations Auth., 510 U.S. 487,
495 (1994). It started with the question whether Higgs had ad-
vanced a sufficient public interest to allow his claims about
Exemption 7(C) to move forward. In this connection, the court
acknowledged that a “prisoner’s interest in attacking his own
conviction is not a public interest.” Hawkins v. DEA, 347 F.
App’x 223, 225 (7th Cir. 2009) (citing Peltier v. FBI, 563 F.3d
754, 764 (8th Cir. 2009)). But, the court concluded, more than
that was involved in Higgs’s case, because he was trying to
uncover a form of government misconduct (i.e. the alleged
deal with the Maryland authorities in exchange for Gloria’s
testimony). The court also distinguished Baker as involving
only a vague interest in ensuring that the government had ad-
equately staffed an investigation. It concluded that the public
interest in the manner in which the Department of Justice car-
ries out its law-enforcement mission—an asserted public in-
terest the court saw as distinct from Higgs’s government-mis-
conduct claim—sufficed to support Higgs’s request.
After concluding that Higgs had met the threshold re-
quirement of demonstrating a public interest supporting dis-
closure, the court criticized the government for failing to
show what privacy interests would be impaired and how
badly. (As with Exemption 7(D), it came to this conclusion for
Exemption 7(C) without personally examining any of the doc-
uments in camera; it also admitted that it did not know which
of the affected people were alive or dead, some 22 years after
the events in question, though it assumed that at least some
were alive.) Having determined that the government did not
meet its burden of production with respect to the protected

-- 8 of 16 --

Nos. 18-2826, 18-2937 9
privacy interests, the court concluded that any balancing was
impossible and that Higgs’s asserted public interest therefore
carried the day.
Finally, the court ruled that the government failed to meet
its burden to justify the withholding of the NCIC Reports and
the Ballistics Reports under Exemption 7(E). The government
has not raised any objection to the court’s application of 7(E)
on appeal.
II
We have not been consistent about the standard of review
that applies when we review a district court’s grant of sum-
mary judgment in a FOIA case. Recently, however, we have
said that we examine the agency’s declarations de novo to see
if there was an adequate factual basis for its decision. If there
was, then we switch gears and review the district court’s con-
clusion only for clear error. Rubman v. USCIS, 800 F.3d 381,
388 (7th Cir. 2015); see also Appleton Papers, Inc. v. EPA, 702
F.3d 1018, 1022 (7th Cir. 2012). But sometimes we have ap-
proached the entire appeal as a de novo matter, which is the
normal standard in an appeal from summary judgment. E.g.,
Matter of Wade, 969 F.2d 241, 245 (7th Cir. 1992); Kaganove v.
EPA, 856 F.2d 884, 886 (7th Cir. 1988), abrogated on other
grounds by Milner v. Dep’t of Navy, 562 U.S. 562 (2011).
Most of our sister circuits use de novo review. See Petroleum
Info. Corp. v. Dep’t of the Interior, 976 F.2d 1429, 1433 (D.C. Cir.
1992); Animal Legal Def. Fund v. FDA, 836 F.3d 987, 989–90 (9th
Cir. 2016); Batton v. Evers, 598 F.3d 169, 175 & n.6 (5th Cir.
2010); Church of Scientology Int’l v. Dep’t of Justice, 30 F.3d 224,
228 (1st Cir. 1994); Halpern v. FBI, 181 F.3d 279, 287–88 (2d Cir.
1999); Abraham & Rose PLC v. United States, 138 F.3d 1075, 1078

-- 9 of 16 --

10 Nos. 18-2826, 18-2937
(6th Cir. 1998); Missouri ex rel. Garstang v. Dep’t of Interior, 297
F.3d 745, 749 (8th Cir. 2002); Anderson v. Dep’t of Health and
Human Servs., 907 F.2d 936, 946 (10th Cir. 1990). Older cases
from the Third, Fourth, and Eleventh Circuits appear to use
the clear-error standard. See Lame v. Dep’t of Justice, 767 F.2d
66, 70 (3d Cir. 1985); Willard v. IRS, 776 F.2d 100, 104 (4th Cir.
1985); Chilivis v. SEC, 673 F.2d 1205, 1210 (11th Cir. 1982).
Procedural purists might question how the clear-error
standard pops up in an appeal from a summary-judgment
ruling, given how well established the de novo standard of re-
view is in such cases. We, too, have our doubts. But for present
purposes we find it unnecessary to resolve how to treat this
unusual type of litigation—unusual because the district court
must resolve some facts before coming to a final decision on
summary judgment. Either way, the government has the bur-
den of justifying its decision to withhold requested infor-
mation. Patterson v. IRS, 56 F.3d 832, 836 (7th Cir. 1995). And
whether we use clear error or de novo review, we come out the
same way in this case.
The government presents two arguments for reversal of
the district court’s decision with respect to the Exemption
7(C) materials: first, it contends that the district court clearly
erred in its evaluation of the individual privacy interests held
by the affected persons, and second, it launches a broadside
attack on the court’s finding that Higgs has shown a sufficient
public interest to warrant disclosure.
It is all but impossible for us to say anything about the in-
dividual privacy interests at stake, for the simple reason that
the district court did not develop the record enough for us to
know what and who were involved. The court realized that
some of the affected people were probably still alive, though

-- 10 of 16 --

Nos. 18-2826, 18-2937 11
some may have been dead. Some may have been third parties
who provided information, some may have been of interest to
law enforcement, and some may have been law-enforcement
personnel. Some may have testified before a grand jury in re-
liance on the confidentiality rules found in Federal Rule of
Criminal Procedure 6(e). The sensitivity and amount of infor-
mation collected from each person also probably varies. If the
case turned on this point, we would have no choice but to re-
mand it to the district court for further proceedings, likely in-
cluding an in camera review of the disputed materials.
We conclude, however, that the government’s second ar-
gument has merit. Higgs had the burden of demonstrating a
significant public interest in the disclosure of the Exemption
7(C) materials. Nat’l Archives and Records Admin. v. Favish, 541
U.S. 157, 172 (2004). This is a threshold matter. So long as the
government has shown enough of a protected privacy interest
to invoke the exemption in the first place, the burden shifts to
the person seeking disclosure to demonstrate that there is
some significant public interest that the court must balance
against those privacy interests. Given the district court’s
acknowledgement that at least some of the affected people
were probably still alive, it was legal error to find that the gov-
ernment had failed to make the required threshold showing
of any protected privacy interests. If, after the burden shifted
to Higgs, he had met it, then a remand to learn more about the
government’s asserted privacy interests may have been
proper. But if he did not meet his burden, there is no need to
reach the more complex balancing test required for Exemp-
tion 7(C).
Higgs proposes two different public interests that would
be advanced through disclosure of these materials: revelation

-- 11 of 16 --

12 Nos. 18-2826, 18-2937
of government misconduct, and education of the public about
the way in which the Department of Justice carries out its law-
enforcement duties. Neither one carries the day for him.
Higgs has been trying since 2005 to convince someone that
the federal prosecutors in his case pressured the Maryland
state prosecutors not to charge Victor Gloria for a 1998 mur-
der; they did so, he insists, in order to strengthen or preserve
Gloria’s utility as a witness against him. Under Favish, in or-
der to prevail on this point Higgs must point to evidence that
would “warrant a belief by a reasonable person that the al-
leged Government impropriety might have occurred.” 541
U.S. at 174. The district court did not make a definitive ruling
on this point; it said only that it was “difficult to say” whether
Higgs met that burden. It thought that it could avoid the ques-
tion because of the public-education benefit of disclosure,
which (in its view) did require a showing of misconduct.
But the court erred by putting this question to one side. If
it had resolved the question in the government’s favor, Higgs
could not use the claimed misconduct to overcome Exemp-
tion 7(C); if it had ruled in Higgs’s favor, we would ask
whether that ruling was either clearly erroneous or just plain
wrong. But so long as we must reach Higgs’s claims of gov-
ernment misconduct (and we must, given our rejection below
of his public-education argument) the Favish question is be-
fore us. And under any standard of review, we cannot see
how we could find that Higgs has presented evidence that
would “warrant a belief by a reasonable person” that the al-
leged impropriety occurred. Such a finding would be possible
only if we threw in the wastebasket the careful findings of the
Maryland district court on this very argument, first in the pro-
ceedings under section 2255, 711 F. Supp. 2d at 508–09, and

-- 12 of 16 --

Nos. 18-2826, 18-2937 13
then in great detail in its opinion rejecting relief under Rule
60(b), 193 F. Supp. 3d at 513. Higgs has offered no reason—
either as a matter of fact or as a matter of law—for us to wipe
the slate clean in that manner and rule in his favor. There are
only so many bites at the apple that one person can have, and
Higgs has had more than his share. The only possible conclu-
sion on this record is that Higgs has not shown that a reason-
able person could find government impropriety.
Higgs’s appeal to public education fares no better. As we
noted earlier, a prisoner’s “interest in ensuring that his con-
victions were not obtained as a result of a violation of the Con-
stitution” does not suffice to show a public interest. Antonelli
v. FBI, 721 F.2d 615, 619 (7th Cir. 1983). It thus follows that a
prisoner’s interest in using FOIA as a discovery tool in a col-
lateral attack on his own conviction is also insufficient. Higgs
disclaims those interests, however, and says instead that he is
trying to shine a light on “the manner in which the DOJ car-
ries out substantive law enforcement policy.” See Citizens for
Responsibility & Ethics in Washington (CREW) v. U.S. Dep’t of
Justice, 746 F.3d 1082, 1093 (D.C. Cir. 2014). This sort of inter-
est does not depend on “whether or not the policy in question
is lawful.” Am. Civil Liberties Union (ACLU) v. U.S. Dep’t of Jus-
tice, 655 F.3d 1, 14 (D.C. Cir. 2011).
All this is well and good, but we have no idea what “sub-
stantive law enforcement policy” was the focus of this FOIA
request. Higgs says that disclosure “would reveal much about
the diligence of the [agency’s] investigation and the DOJ’s ex-
ercise of its prosecutorial discretion,” but that is exactly the
kind of vague interest that we rejected in Baker, 863 F.3d at 684
(interest in whether FBI assigned its best agents to a particular
case). The facts in CREW and the ACLU cases were far

-- 13 of 16 --

14 Nos. 18-2826, 18-2937
different: CREW dealt with a wide-ranging public corruption
investigation of highly placed officials, while ACLU focused
on an alleged policy of warrantless cell phone tracking. In
contrast, the broad questions of diligence and how the gov-
ernment chooses to exercise its prosecutorial discretion
would come up in virtually every case. Finally, this case is not
like Roth v. U.S. Dep’t of Justice, 642 F.3d 1161 (D.C. Cir. 2001),
even though Roth dealt with a particular prisoner’s death sen-
tence, because the court in Roth found that the plaintiff had
satisfied his obligations under Favish. As we already have ex-
plained, Higgs has not.
Because Higgs has not met his threshold burden of show-
ing that the public interest calls for the disclosure of the Ex-
emption 7(C) materials, we reverse the district court’s judg-
ment in his favor on this part of the case.
III
All that remains is to address Higgs’s cross-appeal from
the judgment in the government’s favor on the materials it
was allowed to withhold under Exemption 7(D). This is a
closer question than the government admits. FOIA Exemp-
tion 7(D) protects the law-enforcement function, by protect-
ing either the identity of a confidential source or information
furnished by a confidential source. 5 U.S.C. § 552(b)(7)(D). All
parties agree that the information here was collected for law-
enforcement purposes, and so the only issue is whether the
government has shown that either the identities or the infor-
mation would be threatened if the documents are turned over
to Higgs.
The problem is this: Landano holds that the FBI does not
enjoy a blanket presumption of confidentiality for Exemption

-- 14 of 16 --

Nos. 18-2826, 18-2937 15
7(D) purposes for all criminal investigative sources. 508 U.S.
at 175–76. Instead, the Supreme Court has called for a more
granular inquiry into such matters as the source’s expectation
of confidentiality, the nature of the crime, the source’s relation
to it, and the affected government agency’s relation to the in-
formant. In so doing, the Court observed that the government
might wish to justify its decision through an in camera hearing,
but it did not call for such a hearing in every case. Id. at 180.
We do know a few things about this case: it was a violent
triple murder; the sources, at least according to Hardy’s affi-
davits, were close to Higgs and his associates; the sources pro-
vided information that Hardy called “singular” about the sus-
pects; Higgs leaned on several potential witnesses in an effort
to convince them to provide a false alibi for him, 353 F.3d at
291; and the FBI believed that the confidential sources pro-
vided information at their own peril.
We do not rule out the possibility that this showing com-
plied with Landano. The record would have been much better
if the court had conducted an in camera review, as courts often
do to ensure that the exemption has properly been invoked.
See, e.g., Roth v. U.S. Dep’t of Justice, 642 F.3d 1161, 1186 (D.C.
Cir. 2011); Labow v. U.S. Dep’t of Justice, 831 F.3d 523, 526 (D.C.
Cir. 2016). But we need not come to a decision on this issue
for a reason specific to Higgs’s case: all of the materials for
which the government sought an exemption under 7(D) also
involved a claimed 7(C) exemption. The difference between
the two exemptions mattered for the district court, which was
willing to uphold only the government’s refusal to produce
the law-enforcement documents, i.e., the subset of the 7(C)
materials for which the government also asserted Exemption
7(D). But viewing those documents through the lens of the

-- 15 of 16 --

16 Nos. 18-2826, 18-2937
7(C) exemption, Higgs again founders on his inability to show
that the public interest supports disclosure.
IV
Higgs has had more than enough opportunities to explore
the relationship between the federal prosecutor and the Mar-
yland state prosecutor with respect to Victor Gloria’s actions.
The documents he is seeking under the Freedom of Infor-
mation Act need not be produced if the government can show
that they fall under an exemption to the Act. It has claimed
that all are covered by Exemption 7(C), and it has asserted
that some also fall under Exemption 7(D).
Because Higgs has not shown that the public interest sup-
ports disclosure here, the government was entitled to sum-
mary judgment across the board. We therefore REVERSE the
district court’s grant of summary judgment in favor of Higgs,
as it applies to the documents under Exemption 7(C), and we
AFFIRM its judgment in favor of the government for the doc-
uments protected by Exemption 7(D). Costs will be taxed
against Higgs.

-- 16 of 16 --