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No. 13-55172
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NAJI JAWDAT HAMDAN, et al., Plaintiffs-Appellants,
v.
UNITED STATES DEPARTMENT OF JUSTICE, et al., Defendants-Appellees.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA
BRIEF FOR THE APPELLEES
STUART F. DELERY Assistant Attorney General
ANDRÉ BIROTTE, JR. United States Attorney
MATTHEW COLLETTE (202) 514-4214 H. THOMAS BYRON III
(202) 616-5367 Attorneys, Appellate Staff Civil Division, Room 7260 U.S. Department of Justice 950 Pennsylvania Ave., N.W. Washington, D.C. 20530
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TABLE OF CONTENTS
JURISDICTIONAL STATEMENT......................................................................... 1
STATEMENT OF THE ISSUES PRESENTED FOR REVIEW ........................... 2
STATEMENT OF THE CASE ................................................................................ 3
SUMMARY OF ARGUMENT .............................................................................12
STANDARD OF REVIEW ....................................................................................17
ARGUMENT ..........................................................................................................18
I. The Government Conducted Searches Reasonably
Calculated To Locate Responsive Records. ......................................18
II. The Government Properly Withheld Information
Statutorily Protected From Disclosure. .............................................25
A. Exemptions 1 And 3 Protect National Security
Information. .......................................................................................26
B. Exemption 7(E) Protects Information Concerning
Law-Enforcement Investigations. ..................................................54
III. The Documents Produced To Plaintiffs Properly
Segregated Exempt Information From Responsive
Records. .................................................................................................62
CONCLUSION ......................................................................................................65
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE
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TABLE OF AUTHORITIES
Cases:
ACLU v. Department of Defense, 628 F.3d 612 (D.C. Cir. 2011) .......................52
Allard K. Lowenstein Intern. Human Rights Project v. DHS, 626 F.3d
678 (2d Cir. 2010) ............................................................................................60
Baker v. CIA, 580 F.2d 664 (D.C. Cir. 1978).........................................................47
Batton v. Evers, 598 F.3d 169 (5th Cir. 2010) .......................................................22
Berman v. CIA, 501 F.3d 1136 (9th Cir. 2007) ............ 17, 37, 38-39, 41-42, 52-54
Blackwell v. FBI, 646 F.3d 37 (D.C. Cir. 2011) .....................................................61
Bowen v. FDA, 925 F.2d 1225 (9th Cir. 1991) ......................................................58
Campbell v. SSA, 446 Fed. App’x 477 (3rd. Cir. 2011) .......................................19
Church of Scientology v. Department of the Army, 611 F.2d 738 (9th
Cir. 1979) ................................................................................................... 37, 43
CIA v. Sims, 471 U.S. 159 (1985) ................................................... 25, 36-37, 41, 53
Citizens Comm’n on Human Rights v. FDA, 45 F.3d 1325 (9th Cir.
1995) .................................................................................................................... 8
DiBacco v. Department of the Army, __ F. Supp. 2d __, 2013 WL
5377060 (D.D.C. September 26, 2013) ..........................................................50
Duggan v. SEC, 277 Fed. App’x 16 (1st Cir. 2008) ...................................... 22-23
Hale v. DOJ, 973 F.2d 894 (10th Cir. 1992), cert. granted, vacated &
remanded on other grounds, 509 U.S. 918 (1993) ......................................58
Halperin v. CIA, 629 F.2d 144 (D.C. Cir. 1980) ............................................ 38, 53
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Hunt v. CIA, 981 F.2d 1116 (9th Cir. 1992) ....................................... 17-18, 37, 50
Juarez v. DOJ, 518 F.3d 54 (D.C. Cir. 2008) .........................................................64
Krikorian v. Department of State, 984 F.2d 461 (D.C. Cir. 1993) ........................52
Lahr v. NTSB, 569 F.3d 964 (9th Cir. 2009) ............................................ 18, 22, 52
Lardner v. DOJ, 2005 WL 758267 (D.D.C. Mar. 31, 2005) .................................51
Larson v. Department of State, 565 F.3d 857 (D.C. Cir. 2009) ........... 38-40, 50, 52
Lion Raisins v. USDA, 354 F.3d 1072 (9th Cir. 2004) .................................. 37, 43
Mayer Brown LLP v. IRS, 562 F.3d 1190 (D.C. Cir. 2009) ............................ 60-61
Meeropol v. Meese, 790 F.2d 942 (D.C. Cir. 1986) ......................................... 18-19
Miller v. Casey, 730 F.2d 773 (D.C. Cir. 1984) .....................................................17
NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214 (1978) ............................. 42-43
National Archives and Records Admin. v. Favish, 541 U.S. 157 (2004) ........ 14, 59
Oglesby v. Department of the Army, 920 F.2d 57 (D.C. Cir. 1990) .....................18
Pacific Fisheries, Inc. v. United States, 539 F.3d 1143 (9th Cir. 2008) .......... 62-63
Phillippi v. CIA, 655 F.2d 1325 (D.C. Cir. 1981) ..................................................53
SafeCard Servs., Inc. v. SEC, 926 F.2d 1197 (D.C. Cir. 1991) .............................25
Smith v. ATF, 977 F. Supp. 496 (D.D.C. 1997) ....................................................60
Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415
U.S. 977 (1974) ................................................................................................... 7
In re Wade, 969 F.2d 241 (7th Cir. 1992) ..............................................................22
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Wiener v. FBI, 943 F.2d 972 (9th Cir. 1991) ................................................... 39-42
Wilbur v. CIA, 355 F.3d 675 (D.C. Cir. 2004) ......................................................19
Wilkinson v. FBI, 633 F. Supp. 336 (C.D. Cal. 1986) ..........................................59
Wilner v. NSA, 592 F.3d at 60 (2d Cir. 2009) ......................................................38
Wolf v. CIA, 473 F.3d 370 (D.C. Cir. 2007) ..........................................................52
Zemansky v. EPA, 767 F.2d 569 (9th Cir. 1985) ..................................................18
Statutes:
5 U.S.C. § 552(a)(4)(B) .......................................................................................1, 42
5 U.S.C. § 552(a)(6)(E)(iii) ....................................................................................... 1
5 U.S.C. § 552(b) .....................................................................................................25
5 U.S.C. § 552(b)(1) ............................................................................................3, 26
5 U.S.C. § 552(b)(3) ............................................................................................3, 27
5 U.S.C. § 552(b)(3)(A)(i)-(ii) ................................................................................27
5 U.S.C. § 552(b)(3)(B) ...........................................................................................27
5 U.S.C. § 552(b)(7)(E) ...................................................................... 3, 54-55, 59-60
5 U.S.C. § 552(c) .....................................................................................................12
5 U.S.C. §§ 701-706 .................................................................................................. 1
10 U.S.C. § 424 ...................................................................................... 10, 27, 43-45
10 U.S.C. § 424(a) ...................................................................................................47
10 U.S.C. § 424(a)(1) ................................................................................. 46, 48, 49
10 U.S.C. § 424(a)(2) ....................................................................................... 46, 48
28 U.S.C. § 1291 ........................................................................................................1
28 U.S.C. § 1331 ....................................................................................................... 1
50 U.S.C. §§ 3023-3024 ..........................................................................................51
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50 U.S.C. § 3024(i)(1) ................................................................ 27-28, 44-46, 49-51
50 U.S.C. § 3507 ......................................................................................................47
50 U.S.C. § 403-1(i)(1) ......................................................................... 28, 44, 49, 51
50 U.S.C. § 403g ......................................................................................................47
Executive Orders:
Executive Order 13526, 75 Fed. Reg. 707 (Dec. 29, 2009) .... 16, 26-27, 29, 31-36
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IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 13-55172
NAJI JAWDAT HAMDAN, et al., Plaintiffs-Appellants,
v.
UNITED STATES DEPARTMENT OF JUSTICE, et al., Defendants-Appellees.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA
BRIEF FOR THE APPELLEES
JURISDICTIONAL STATEMENT
Plaintiffs invoked the district court’s jurisdiction under 5 U.S.C.
§ 552(a)(4)(B) and 28 U.S.C. § 1331. ER 682.1 On December 11, 2012, the
district court granted summary judgment to the defendant government
agencies. ER 1. Plaintiffs filed a notice of appeal on January 25, 2013. ER 9.
This Court has jurisdiction pursuant to 28 U.S.C. § 1291.
1 Plaintiffs also cited 5 U.S.C. § 552(a)(6)(E)(iii) and 5 U.S.C. §§ 701-
706, which do not confer jurisdiction. ER 682.
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STATEMENT OF THE ISSUES PRESENTED FOR REVIEW
In July 2010, plaintiffs submitted extremely broad requests for
information, pursuant to the Freedom of Information Act (FOIA), to
various intelligence, national security, and law-enforcement agencies, as
well as the Department of State. The requests sought information related
to three individuals and a business, as part of plaintiffs’ effort to determine
whether the United States had any involvement in the detention and
treatment of one of the individuals in the United Arab Emirates. Plaintiffs
then brought this suit in district court, raising a wide variety of issues and
arguments to challenge the FOIA responses of 14 United States
government agencies or components. The district court granted summary
judgment for the government. The only issues remaining on appeal are:
1. Whether the Federal Bureau of Investigation (FBI) and the
Department of State (State) complied with FOIA’s requirement to search
for responsive records.
2. Whether documents withheld or redacted by FBI and the
Defense Intelligence Agency (DIA) are exempt from disclosure under FOIA
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Exemptions 1, 3, and 7(E), which protect (respectively) properly classified
national security information, records that are specifically exempted from
disclosure by statute, and law enforcement records where production
would disclose techniques and procedures for law enforcement
investigations or prosecutions. See 5 U.S.C. § 552(b)(1),(3),(7)(E).
3. Whether the government properly segregated exempt
information from the records produced to plaintiffs.
STATEMENT OF THE CASE
1. Plaintiffs submitted a FOIA request to multiple government
agencies, seeking “any records * * * relating to or concerning” three named
individuals (Naji Hamdan, Hossam Hemdan, and Jehad Suliman) and a
business once owned by Hamdan and managed by Suliman called
Hapimotors. ER 729 (emphasis in original). The request sought any
information “prepared, received, transmitted, collected and/or maintained”
by the Departments of Justice, State, Defense, and Homeland Security, and
the Central Intelligence Agency, “and any of their sub-agencies or
divisions.” Ibid. (emphasis in original). Plaintiffs’ letter was specifically
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addressed to 18 named government agencies or components. ER 723-726.
The request also made clear that plaintiffs sought not only files specifically
pertaining to any of the individuals or the business by name, but also any
files “that may be cross-listed, cross-referenced or contained in the main
file pertaining to another individual or entity,” and to “the entirety of any
document that includes the name of any of the requestors.” ER 729-730.
The letter also sought expedited processing of the request, and waiver of
fees and costs. ER 731-734. The request was dated January 29, 2009, but
was apparently sent in 2010. ER 680.
In August 2010, after some agencies had responded, and while others
were still processing the FOIA requests, plaintiffs filed a complaint in
district court, which they subsequently amended. ER 678-721. The
agencies continued to process the requests, and sought to coordinate with
plaintiffs to minimize the areas of disagreement to the extent possible.
During the course of the litigation, defendants produced extensive
information to plaintiffs.
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FBI searched its Central Records System (CRS), which includes all of
the agency’s “administrative, applicant, criminal, personnel and other files
compiled for law enforcement purposes.” ER 237, 606. Searches of CRS are
made using the Automated Case Support System, which “can be described
as an internal computerized subsystem of the CRS.” ER 238, 606; see also
ER 238-240, 606-608. FBI also searched its Electronic Surveillance (ELSUR)
indices, which maintain information on communications intercepted by
FBI surveillance. ER 240-241, 256-257. The FBI searches identified 771
pages of responsive records, including reports, memoranda, email
messages, and other documents, of which FBI released 521 pages in full or
in part, withholding 250 pages in full. ER 234, 237 & n.3, 601. FBI withheld
information pursuant to FOIA exemptions 1, 5, 6, 7(C), 7(D), and 7(E),
protecting classified national security information, information subject to
attorney-client and work-product privileges, personal privacy information,
information relating to law enforcement confidential sources, and
information that would reveal investigative techniques and procedures
used in law-enforcement investigations. ER 234-235 & n.1, 242-256, 610-
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638. DIA identified 20 classified records – including electronic message
traffic, finished intelligence products, and other intelligence information –
that were responsive to plaintiffs’ request, and seven others that were not
responsive but included at least one piece of responsive information. All
27 records (a total of 165 pages) were exempt from disclosure pursuant to
FOIA Exemptions 1, 3, and 6 because they contained classified national
security information, information that would reveal DIA functions or
intelligence sources and methods, and personal privacy information. ER
266, 575-576, 578-599.2
After completing that processing, FBI and DIA, along with all of the
other government agency defendants except State, moved for summary
judgment. That motion and the reply were accompanied by over 1200
pages of declarations and other supporting information constituting the
Vaughn index, explaining the agencies’ actions in response to the FOIA
2 Other agencies also produced large numbers of responsive records,
withholding some information pursuant to FOIA’s statutory exemptions.
Because plaintiffs in this appeal only challenge some withholdings by FBI
and DIA, and searches by FBI and State, we have limited the description of
the proceedings accordingly.
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request, and the reasons for withholding certain records in whole or in
part. See Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415
U.S. 977 (1974).
State subsequently completed processing, having identified 1,177
responsive records, and released 533 documents in full and 258 in part;
State withheld 386 documents in full. ER 226.3 The responsive records
included email messages, draft documents, letters, cables, memoranda,
legal filings, and diplomatic notes. In the course of processing the request,
State searched its Central Foreign Policy Records (the agency’s principal
record system), as well as 11 internal offices or components (including the
Bureau of Intelligence and Research, the Bureau of Near Eastern Affairs,
the Office of Overseas Citizens Services, the Office of the Coordinator for
Counterterrorism, and the offices of the Secretary, Deputy Secretary, and
Counselor) and 3 overseas posts (the U.S. Embassies in Abu Dhabi and
Beirut, and the U.S. Consulate General in Dubai). ER 160-163. Following a
stipulation with plaintiffs, State provided a detailed Vaughn index with
3 State later identified additional documents. See Pl. Br. 12 n.12.
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more than 200 pages of additional declarations and other supporting
materials addressing a sample of withheld information (including
documents selected by plaintiffs, as well as other randomly selected
documents), and moved for summary judgment in April 2012. ER 54-67,
158-226; Dkt# 64; Dkt# 69.
2. The district court granted summary judgment to the
defendants, holding that the government had carried its burden of
providing declarations with reasonably detailed descriptions of the
documents at issue and describing the facts needed to establish the
applicability of appropriate exemptions for withheld information. See ER 3
(quoting Citizens Comm’n on Human Rights v. FDA, 45 F.3d 1325, 1329 (9th
Cir. 1995)).
The district court concluded that the government agency defendants
had “adequately addressed the Plaintiffs’ objections to their searches.” ER
3. Many of the disputes about the adequacy of the searches undertaken
“were based on misunderstandings of the relevant file systems or
databases, which Defendants have now explained and corrected.” Ibid.
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Other questions about the searches “were based on unclear or inaccurate
responses from the Defendants which have now been corrected or
clarified.” Ibid. Defendants also “completed several additional searches
requested by Plaintiffs that were not done initially.” Ibid.
The district court also upheld the government’s invocation of the
Glomar doctrine, which permits an agency to respond by neither
confirming nor denying whether responsive records exist, where saying
anything more would itself disclose information protected from disclosure
by a FOIA exemption. “The affidavits establish that disclosing whether or
not the respective intelligence-related agencies possess documents
responsive to the requests would reveal classified information.” ER 4.
Specifically, the court acknowledged that the question whether “the
various national security agencies at issue have a covert relationship with
an individual or entity or an intelligence interest in a target is itself
classified, and is protected from disclosure by FOIA exemptions 1 and 3.”
Ibid. The court rejected plaintiffs’ speculation that the Glomar response
might have been invoked improperly, pointing out that “there is no
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evidence that the relevant agencies” used the Glomar doctrine “to shield
illegal activity.” Ibid. Specifically, the court concluded that “there is no
evidence that any of the agencies asserting the Glomar Doctrine took part
in the torture” alleged by plaintiffs to have occurred while Hamdan was
detained in the United Arab Emirates. Ibid.
The district court concluded that the withheld information was
properly protected from disclosure by the claimed FOIA exemptions.
Information withheld by DIA was protected by Exemption 3 and 10 U.S.C.
§ 424. ER 4. And classified information from DIA and FBI was protected
by Exemption 1. Ibid. (“The Court finds that the classification claims are
sufficiently supported by the declarations and there is no reason to doubt
the veracity or good faith of the declarants.”).
The district court also held that FBI and DIA properly withheld
information about the identities of government employees under
Exemptions 6 and 7(C), where personal privacy interests were not
outweighed by a public interest in disclosure. ER 4-5. “Plaintiffs have not
specified how knowledge of particular low-level government employees’
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names would further let citizens know what their government is up to, and
certainly have not established that any such interest outweighs the
government employees’ interests in not being publically revealed as
associated with the issues raised by Hamdan’s detention.” Ibid. (quotation
marks omitted). The court also upheld the applicability of Exemption 7(E)
to protect FBI information concerning law enforcement techniques and
methods. ER 4.
The district court separately addressed plaintiffs’ arguments
concerning State’s responses, holding that “the search undertaken by the
State Department was adequate,” and specifically concluding that “[i]t was
reasonable not to search the Bureau of Political-Military Affairs because
* * * [t]here is no reason to believe that Plaintiffs have been involved in any
formal military activities that would be within the purview of the Bureau.”
ER 5. The district court concluded that Exemption 1 protected the
classified documents withheld by State and there was “no reason to require
the State Department to provide more detailed, in-camera descriptions of
the classified documents or the documents themselves.” Ibid. Pre-
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decisional and deliberative documents were protected by the deliberative
process privilege, and three documents were subject to attorney-client or
work-product privilege; all were properly withheld under Exemption 5.
ER 5-6. The court concluded that there is no “significant, countervailing
interest in disclosure” that would outweigh “the privacy interest in
withholding certain names of agency employees” under Exemptions 6 and
7(C): “It is not clear why Plaintiffs want to know the names of particular
individuals and they have provided no reason why such information
advances any legitimate interest that they might have.” ER 6.4
SUMMARY OF ARGUMENT
The multiple government agencies involved in this case have gone to
extraordinary lengths to process plaintiffs’ broad FOIA request quickly,
comprehensively, and with an eye to releasing as much information as
possible, consistent with the need to protect certain sensitive information.
4 Plaintiffs also questioned whether any records had been excluded
under 5 U.S.C. § 552(c). The district court observed that “Defendants have
adequately addressed 5 U.S.C. § 552(c) in the in camera submissions,” but
declined to “elaborate * * * in the interest of not inadvertently disclosing the
contents, or lack thereof, of the in camera documents.” ER 5, 7.
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They have released substantial amounts of information, redacting only
what was necessary. And they have explained their responses to the FOIA
request, as well as the basis for the limited withholdings, in extensive
detail, comprising hundreds of pages of declarations and other
information. That record provided a solid basis for the district court’s
grant of summary judgment to the government, finding that defendants
had complied with their obligations under FOIA. That decision was
correct and should be affirmed.
Much of plaintiffs’ argument, like their FOIA request and their filings
in district court, consists of allegations about the treatment of one
individual, Naji Jawdat Hamdan, during his detention in the United Arab
Emirates while living in that country. Those allegations have no bearing
on the FOIA issues presented in this case. Moreover, although plaintiffs
continue to speculate that the United States government might have been
involved with Hamdan’s detention and mistreatment, there is, as the
district court correctly concluded, “no evidence that any of the agencies”
involved here “took part in the torture” or detention alleged by plaintiffs,
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ER 4, or that they were even aware of it. That is so, despite years of
intensive and aggressive litigation by plaintiffs, who challenged the
government at every turn in this FOIA case. As the Supreme Court held in
another FOIA context, “[a]llegations of government misconduct are easy to
allege and hard to disprove, so courts must insist on a meaningful
evidentiary showing.” National Archives and Records Admin. v. Favish, 541
U.S. 157, 175 (2004) (internal quotation marks and citation omitted).
Despite the lack of evidence of any wrongdoing on the part of the
United States government, plaintiffs persist in assuming not only that the
government may have improperly withheld information beyond what
FOIA permits, but also that any withheld information would show
government wrongdoing. Both assumptions are incorrect and
unsupportable. There is no evidence that the United States government
had anything to do with any mistreatment of Hamdan in the United Arab
Emirates. But even if plaintiffs’ speculation had any factual basis, it would
not alter the analysis of the FOIA issues in this appeal. The government
has responded appropriately to plaintiffs’ FOIA requests.
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Plaintiffs complain about the searches conducted by FBI and DIA.
But those arguments are based on misunderstandings of both the relevant
standard and the nature of the government’s records. The agencies
conducted appropriate searches reasonably calculated to identify
responsive records; plaintiffs’ request for additional searches would
impose undue burdens without any corresponding likelihood of
identifying responsive information.
Plaintiffs also challenge some of the limited information withheld by
DIA and FBI under Exemptions 1, 3, and 7(E). Exemption 1, which protects
properly classified national security information from disclosure, applies to
information described by FBI and DIA, disclosure of which could
reasonably be expected to cause damage (or serious or exceptionally grave
damage) to national security. The classified information at issue in this
case is well within the core of what the Executive Order contemplates must
be protected from public disclosure: intelligence sources and methods,
information relating to foreign relations or foreign activities, and
information provided by a foreign government. The Vaughn index explains
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why the information is properly classified under Executive Order 13526,
and why disclosure would harm national security. The classified DIA
information is also protected by statute, as recognized by FOIA Exemption
3. Both a DIA-specific statute – which prohibits disclosure of information
that would reveal the functions of that agency – and the well-recognized
National Security Act – which protects intelligence sources and methods –
apply here and prohibit disclosure. And FBI is entitled to the protection of
Exemption 7(E), which protects information about law enforcement
techniques and methods.
Finally, plaintiffs complain that the district court should have made a
specific finding concerning segregability of exempt information from non-
exempt information. The record here, including the Vaughn index and the
redacted documents produced to plaintiffs, demonstrates that the
government agencies properly identified and released any reasonably
segregable non-exempt information.
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STANDARD OF REVIEW
This Court uses a two-step process to review a district court’s grant
of summary judgment in a FOIA case. Berman v. CIA, 501 F.3d 1136, 1139
(9th Cir. 2007). First, this Court reviews de novo whether the documents
submitted by the agency provide an adequate factual basis for the district
court’s decision. Second, the Court reviews whether the district court was
correct in determining that the relevant FOIA exemptions applied,
reviewing the district court’s determination for clear error if it turned
“mainly on findings of fact,” and de novo if it turned on interpretation of
the law. Ibid.
In FOIA cases where the government relies on national security
considerations, invoking Exemptions 1 and 3, courts must “accord
‘substantial weight’ to [the agency’s] affidavits.” Hunt v. CIA, 981 F.2d
1116, 1119 (9th Cir. 1992) (quoting Miller v. Casey, 730 F.2d 773, 777 (D.C.
Cir. 1984)). This Court must defer to the agency’s assessment that
disclosing information could reveal the sources and methods of intelligence
gathering or harm the national security so long as the government’s
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affidavits “describe the justifications for nondisclosure with reasonably
specific detail, demonstrate that the information withheld logically falls
within the claimed exemptions, and show that the justifications are not
controverted by contrary evidence in the record or by evidence of [agency]
bad faith.” Ibid.
ARGUMENT
I. THE GOVERNMENT CONDUCTED SEARCHES REASONABLY CALCULATED
TO LOCATE RESPONSIVE RECORDS.
Plaintiffs contend that FBI and State should have conducted
additional searches in response to the FOIA request here. But that
argument misunderstands both the legal obligation and the facts of this
case.
As this Court has recognized, FOIA requires an agency to show “that
it has conducted a search reasonably calculated to uncover all relevant
documents.” Zemansky v. EPA, 767 F.2d 569, 571 (9th Cir. 1985) (quotation
marks omitted), quoted in Lahr v. NTSB, 569 F.3d 964, 986 (9th Cir. 2009).
But “[t]here is no requirement that an agency search every record system.”
Oglesby v. Department of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990). Thus, “a
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search need not be perfect, only adequate, and adequacy is measured by
the reasonableness of the effort in light of the specific request.” Meeropol v.
Meese, 790 F.2d 942, 956 (D.C. Cir. 1986). A plaintiff’s speculation that there
might be other documents to be found elsewhere does not undermine the
adequacy of a reasonable search. See, e.g., Campbell v. SSA, 446 Fed. App’x
477, 480-481 (3rd. Cir. 2011) (absence of particular documents that plaintiff
claims should be among responsive records does not establish that
agency’s search was unreasonable); Wilbur v. CIA, 355 F.3d 675, 678 (D.C.
Cir. 2004) (“the agency’s failure to turn up a particular document, or mere
speculation that as yet uncovered documents might exist, does not
undermine the determination that the agency conducted an adequate
search for the requested records”).
FBI and State both explained in detail the extensive searches
conducted, and why those searches were appropriate in light of plaintiffs’
request. ER 56-59, 163-172, 237-241, 256-258, 606-609. The district court
agreed that the agencies had made a reasonable effort calculated to identify
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the relevant documents. ER 3, 5. That decision was correct and should be
affirmed.
Plaintiffs argue that FBI should also have searched several individual
email accounts, and also suggest that some unspecified additional searches
should have been done at two field offices and two legal attaché offices
abroad. See Pl. Br. 18.5 Their suggestion that “FBI searched only two
central databases,” Pl. Br. 19 (emphasis added), mistakenly assumes that
other databases or repositories exist that are likely to contain responsive
records. As FBI’s declarant (David M. Hardy) explained, however, FBI’s
central databases – the Central Records System and the Electronic
Surveillance indices – are the means by which FBI maintains its records
(throughout all its offices) for use in investigations and other operations.
ER 237-241, 606-608. All FBI records are indexed and searchable through
5 In district court, plaintiffs waived the argument that FBI should
have conducted searches in field offices and overseas legal attaché offices
by failing to raise it until their reply brief. See Dkt# 57, at 2-3; cf. Dkt# 42-1,
at 11-14. Accordingly, the government had no opportunity to respond.
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those databases – otherwise, they would not be accessible to FBI personnel
when needed.
Hardy explained that all emails determined to qualify as records –
that is, those that are “appropriate for preservation” because they are
“important to a case or investigation,” based on an individual’s “judgment
similar to the decision to retain and file paper records” – are uploaded into
FBI’s Automated Case Support System. ER 257-258. The point is not that
every conceivable email message is necessarily uploaded or destroyed, see
Pl. Br. 20-21, 23, but that FBI’s search was reasonably calculated to identify
all relevant information – that is, all records that the agency properly
deemed appropriate for preservation (in operational decisions unrelated to
this or any other FOIA request). Plaintiffs suggest that FBI should have
searched multiple email systems and accounts because some records
produced by State included communications from alleged FBI personnel.
See Pl. Br. 21. They also argue that because FBI produced records that
referred to (for example) communications between FBI and State, FBI
should also have searched elsewhere for those original communications,
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even if any additional documents would merely have been duplicative.
Ibid. Those arguments do not demonstrate that FBI’s search was
unreasonable in the circumstances. See Batton v. Evers, 598 F.3d 169, 176
(5th Cir. 2010) (“the issue is not whether other documents may exist, but
rather whether the search for undisclosed documents was adequate”)
(quoting In re Wade, 969 F.2d 241, 249 n. 11 (7th Cir. 1992)). As this Court
has recognized, “the failure to produce or identify a few isolated
documents cannot by itself prove the searches inadequate.” Lahr, 569 F.3d
at 988. Plaintiffs cannot prevail by suggesting there may be a few isolated
documents that were not uncovered by the reasonable searches undertaken
by FBI.
Finally, plaintiffs suggest that information in the CRS database might
not have been found because that comprehensive (and correspondingly
large) repository can only be searched by indexed identifiers, and they
believe those identifiers might not have included information about
plaintiffs. See Pl. Br. 23-24. But that is pure speculation, insufficient to
refute the reasonableness of the searches FBI conducted. See, e.g., Duggan
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v. SEC, 277 Fed. App’x 16, 17 (1st Cir. 2008) (“appellant could not rely upon
mere innuendo and speculation to overcome” showing that agency “had
conducted a search that was reasonably calculated to disclose requested
documents”). Moreover, as Hardy explained, there is no other practical
method available to search FBI files. ER 608.
Plaintiffs also argue that State should have searched the files of the
Bureau of Political-Military Affairs (PM). See Pl. Br. 24-25. PM is State’s
“principal link to the Department of Defense * * * [and] provides policy
direction regarding military operations, defense strategy, and defense
trade, * * * [and] has the Departmental lead on issues such as military
exercises, diplomatic clearance for foreign vessels, and conventional
weapons destruction.” ER 56. Because “there is no apparent connection
between the plaintiffs and any of the military functions performed by PM,”
State reasonably concluded (and the district court agreed) that PM was
unlikely to have records that would be responsive to the FOIA request
here. Ibid.; see also ER 5 (district court decision).
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Plaintiffs offer no reason to conclude that the records they sought had
any connection with PM’s discrete areas of responsibility. Instead of taking
issue with the district court’s conclusion, plaintiffs point to two documents
that they claim “make clear that consular officials communicated with
officials in the Bureau of Political-Military Affairs about this case.” Pl. Br.
25 (citing ER 113, 121). Even assuming that plaintiffs are correct that those
documents refer to PM, Grafeld explained that such a “passing reference to
a PM employee” does not overcome the fact that “there appears to be no
indication that PM was involved in any matters related to Mr. Naji
Hamdan and there is no apparent connection between the plaintiffs and
any of the military functions performed by PM.” ER 56.6 To the extent
6 The documents cited by plaintiff refer to “Abu Dhabi Pol/Mil,” ER
113, and “POL Mail,” ER 121. Publicly available sources make clear that
“Pol/Mil” and its variants typically refer to an embassy’s Political/Military
Affairs component, within the post’s Political Section, not to the separate
Bureau of Political-Military Affairs (PM) at State headquarters in
Washington, D.C. For example, a State telephone directory lists an
individual with the title “POL-MIL” as a “key officer” at the United States
Embassy Abu Dhabi. http://www.state.gov/documents/organization/-
111812.pdf (p. KO-61); cf. http://www.state.gov/documents/organization/-
112065.pdf (p. OD-46) (listing key officers in the Bureau of Political-Continued on next page.
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there is any doubt, State’s judgment about the likelihood of responsive
records was amply supported by sound reasoning and is entitled to a
presumption of good faith. See, e.g., SafeCard Servs., Inc. v. SEC, 926 F.2d
1197, 1200 (D.C. Cir. 1991).
II. THE GOVERNMENT PROPERLY WITHHELD INFORMATION STATUTORILY
PROTECTED FROM DISCLOSURE.
The government here withheld only sensitive information subject to
statutory exemptions included as part of the FOIA scheme. FOIA requires
that federal agencies produce agency records in response to valid requests,
but not all information must be disclosed: “Congress recognized, however,
that public disclosure is not always in the public interest,” CIA v. Sims, 471
U.S. 159, 166-167 (1985), and it therefore enacted nine statutory exemptions
as part of FOIA that shield certain categories of information from
disclosure. See 5 U.S.C. § 552(b). Two of those statutory exemptions –
Exemptions 1 and 3 – protect specific national security and intelligence-
Military Affairs, abbreviated “PM”); see also, e.g., http://abudhabi.-
usembassy.gov/about-us/offices-and-departments/political-section.html
(including “Political/Military Affairs” among the responsibilities of the
Embassy’s Political Section). State did search the embassy in Abu Dhabi.
ER 170.
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related information, including classified information concerning
intelligence sources, method, and activities. Another – Exemption 7(E) –
protects techniques and methods used in law-enforcement investigations.
The district court correctly held that FBI and DIA properly relied on those
statutory exemptions in withholding sensitive information that is protected
from disclosure. 7
A. Exemptions 1 And 3 Protect National Security Information.
Exemption 1 protects records that are “(A) specifically authorized
under criteria established by an Executive Order to be kept secret in the
interest of national defense or foreign policy and (B) are in fact properly
classified pursuant to such Executive Order.” 5 U.S.C. § 552(b)(1).
Executive Order 13526 establishes the requirements for classifying national
security information, and sets out specific categories of information subject
to classification, including “foreign government information,” “intelligence
activities,” “intelligence sources or methods,” and the “foreign relations or
7 Other defendants also withheld protected information pursuant to
statutory exemptions, but plaintiffs do not challenge those withholdings.
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foreign activities of the United States, including confidential sources.” 75
Fed. Reg. 707, 709 (Dec. 29, 2009).
Exemption 3 incorporates the protections of other statutes, shielding
records that are “specifically exempted from disclosure by statute.” 5
U.S.C. § 552(b)(3). Exemption 3 applies if another statute “requires that the
matters be withheld from the public in such a manner as to leave no
discretion on the issue” or “establishes particular criteria for withholding
or refers to particular types of matters to be withheld.” 5 U.S.C.
§ 552(b)(3)(A)(i)-(ii).8 Two such statutes are at issue in this case. First, in
the National Defense Authorization Act for Fiscal Year 1997, Congress
enacted a provision that specifically exempts from disclosure
“organizational and personnel information * * * for specified intelligence
agencies” that are components of the Department of Defense, including
DIA. See 10 U.S.C. § 424. Second, the National Security Act of 1947, as
amended, provides that “[t]he Director of National Intelligence shall
8 For statutes enacted after October 28, 2009, a statute must also
specifically refer to FOIA Exemption 3. 5 U.S.C. § 552(b)(3)(B).
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protect intelligence sources and methods from unauthorized disclosure.”
50 U.S.C. § 3024(i)(1) (formerly codified at 50 U.S.C. § 403-1(i)(1)).
1. Both FBI and DIA withheld properly classified information
under Exemption 1, and explained those withholdings in supporting
declarations, providing as much detail as possible.
a. Plaintiffs challenge some of FBI’s Exemption 1 withholdings:
they list seven documents withheld in full and nine in part, consisting of
approximately 52 pages with classified information. ER 276-277.9 The
documents include memoranda, reports, email messages, handwritten
notes, and drafts. Hardy, an original classification authority, explained
that the information at issue was classified at the Secret level because
unauthorized disclosure could be expected to cause serious damage to
national security. ER 613. He explained that the requirements for
9 One of the listed documents, FBI-ACLU-663, was not withheld
under Exemption 1, but under Exemptions 5, 6, and 7(C). See ER 373.
Some withheld information is not only covered by Exemption 1 but is also
subject to attorney-client and work-product privileges under Exemption 5,
which plaintiffs do not contest on appeal, further narrowing the scope of
the dispute before this Court. See ER 280-282, 284, 363, 365, 367, 369, 371.
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classification pursuant to Executive Order 13526 were satisfied, and that
the information fell within two categories set forth in that Executive Order:
intelligence activities, sources and methods, pursuant to section 1.4(c) of
the Executive Order; and foreign relations or foreign activities, pursuant to
section 1.4(d). ER 613-614. For each of those categories, and for multiple
subcategories within section 1.4(c), he explained in substantial detail why
disclosure would cause serious damage to national security.
He first explained why classified information must be kept secret to
protect intelligence activities and methods. Disclosure of that classified
information “would reveal the actual intelligence activities and methods
used by the FBI against specific targets of foreign counterintelligence
investigations or operations; identify a target of foreign counterintelligence
investigation; or disclose the intelligence-gathering capabilities of the
activities or methods directed at specific targets.” ER 614. Disclosure
would harm national security for three specified reasons: “(1) disclosure
would allow hostile entities to discover the current intelligence-gathering
methods used; (2) disclosure would reveal current specific targets of the
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FBI’s national security investigations; and (3) disclosure would reveal the
determination of the criteria used and priorities assigned to current
intelligence or counterintelligence investigations.” ER 615. That
information could allow hostile entities to “develop countermeasures
which would, in turn, severely disrupt the FBI’s intelligence-gathering
capabilities,” which “would also result in severe damage to the FBI’s efforts
to detect and apprehend violators of the United States’ national security
and criminal laws.” Ibid.
Then he identified the specific national security concerns warranting
classification of the particular documents: the documents at issue in this
appeal consist of memoranda, reports, email messages, handwritten notes,
and drafts that include information about “detailed intelligence activities,”
disclosure of which “would (a) reveal the actual intelligence activity or
method utilized by the FBI against a specific target; (b) disclose the
intelligence-gathering capabilities of the method; and (c) provide an
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assessment of the intelligence source penetration of a specific target during
a specific period of time.” ER 247, 615.10
In addition to the section 1.4(c) category of intelligence sources and
methods, Hardy explained that two email messages are also properly
classified under section 1.4(d) of the Executive Order because they concern
foreign relations or foreign activities. ER 619.11 Those documents
“contain[] sensitive intelligence information gathered by the United States
either about or from a foreign country,” and disclosing it would
“jeopardize the fragile relationships that exist among the United States and
certain foreign governments.” Ibid. Disclosure of that information could
harm national security in multiple ways, including the prospect of other
governments engaging in “diplomatic or economic retaliation,” as well as
10 Plaintiffs do not challenge the withholding of classified information
on other grounds, including that disclosure would reveal the identity of
individual intelligence sources, classified file numbers assigned to specific
intelligence activities, or the character or title of the case for a specific type
of intelligence activity. ER 616-619. 11 Information withheld in those two documents is also subject to
attorney-client and work-product privilege under Exemption 5. ER 280-
281, 284, 361, 623, 624.
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curtailing the intelligence activities and enabling hostile entities to assess
the capabilities of our intelligence activities and develop countermeasures.
Ibid.
Hardy concluded by explaining that he could not provide additional
detail about the classified information withheld under Exemption 1. In his
judgment as an original classification authority, “any greater specificity in
the descriptions and justifications * * * could reasonably be expected to
jeopardize the national security of the United States.” ER 248, 620.
b. DIA’s declarant (Alesia Y. Williams), a FOIA officer with
declassification authority, explained that the classified DIA information
meets the requirements of Executive Order 13526. DIA identified 27
classified intelligence records (a total of 165 pages) that were at least partly
responsive to plaintiffs’ request, all of which were exempt pursuant to
FOIA Exemptions 1, 3, and 6. Information in all 27 records remains
currently and properly classified pursuant to section 1.4(c) of Executive
Order 13526, in order to protect intelligence sources and methods. One of
the documents also remains classified to protect foreign government
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information and the foreign relations of the United States pursuant to
sections 1.4(b) and 1.4(d) of the Executive Order.
As noted above, each of the 27 documents contains classified DIA
information that falls within section 1.4(c) of the Executive Order, which
protects intelligence sources and methods. The protection of these sources
and methods is critical to the successful completion of DIA’s mission. As
Williams explained, disclosing the details concerning how and where DIA
collects intelligence would materially assist our adversaries, causing harm
to the national security of the United States. DIA relies on a variety of
intelligence sources, which “can include individuals, foreign or American,
foreign entities, and the intelligence and security services of foreign
governments.” ER 583. Not surprisingly, confidentiality is an essential
part of DIA’s relationship with those sources, who “can be expected to
furnish information only when confident that they are protected from
retribution by the absolute secrecy surrounding their relationship to the
United States government.” Ibid. If a source’s identity were compromised,
he or she would be “extremely vulnerable to retaliation,” which can range
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from “economic reprisals to possible harassment, imprisonment, or even
death.” Ibid. In addition, information concerning intelligence methods, the
means of collecting intelligence information to support essential United
States national security goals, must be protected from disclosure, which
could aid those who “seek to penetrate, avoid, or damage the intelligence
operations of the United States.” Ibid. Properly classified DIA information
in the records at issue here was withheld because it was obtained using
these classified intelligence sources and methods, and must be protected
from disclosure to avoid those harms to national security. ER 583-584.
One document containing classified source and method information
also includes foreign government information, protected under section
1.4(b) of the Executive Order, which provides an express presumption that
release of such information would cause damage to national security. See
75 Fed. Reg. 707. Williams explained that, “[a]s a general rule, information
obtained by the United States from a foreign government through
diplomatic channels is expected to be kept confidential,” and some foreign
government information is obtained “only after the United States accedes
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to an express request to keep such information confidential.” ER 580-581.
As Williams explained in detail, breaching such a promise to a foreign
government can damage diplomatic relations, curtail future opportunities
to share information, and harm the careers and reputations of the foreign
government officials who supplied the information. Failing to “live up to
the terms of [those] commitments” can damage the “international
credibility” of the United States, and result in international friction or
retaliation, damaging the national security interests of the United States.
ER 581-582. Williams explained that the classified information in one
document “contains foreign government information” within the meaning
of the Executive Order, and its disclosure reasonably could be expected to
cause damage to the foreign relations of the United States. ER 582.12
12 Plaintiffs suggest in a footnote that Williams “fails to state whether
the information was provided with the ‘expectation’ that it would be ‘held
in confidence.’” Pl. Br. 35 n.22. But that argument fails to take account of
the overall discussion of the foreign government information at issue. See
ER 580-582. After quoting the definition of foreign government
information in the Executive Order, Williams discusses in detail the need to
keep confidential information obtained through diplomatic channels and
the principle of diplomatic confidentiality, concluding that the particular Continued on next page.
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Finally, some of the information within the document containing
foreign government information and intelligence sources and methods was
classified pursuant to section 1.4(d) of the Executive Order, which protects
information if its disclosure would harm foreign relations of the United
States. Maintaining good relations with foreign governments is essential to
the United States generally, and to DIA’s successful performance of its
mission in particular. Those good relations are essential to intelligence
sharing among governments, which permits DIA to “acquire[] intelligence
it may not otherwise be able to obtain.” ER 584.
c. Plaintiffs contend that the declarations submitted here lack
sufficient details about the classified records at issue. See Pl. Br. 33-39. But
this Court, like the Supreme Court, has recognized that the very nature of
classified information often precludes additional detail in a public filing.
“It is conceivable that the mere explanation of why information must be
document at issue “contains foreign government information as defined by
E.O. 13,526.” ER 582. That explanation leaves no doubt that the document
is subject to the “principle of diplomatic confidentiality.” Ibid.
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withheld can convey valuable information to a foreign intelligence
agency.” CIA v. Sims, 471 U.S. 159, 179 (1985), quoted in Berman, 501 F.3d
at 1142; see also, e.g., Hunt v. CIA, 981 F.2d 1116, 1120 (9th Cir. 1992) (“the
affidavits were as specific as possible given the nature of the information
the CIA sought to protect”). It is well established that the government
need not “disclose facts that would undermine the very purpose of its
withholding.” Lion Raisins v. USDA, 354 F.3d 1072, 1084 (9th Cir. 2004); see
also, e.g., Church of Scientology v. Department of the Army, 611 F.2d 738, 742
(9th Cir. 1979) (“the government need not specify its objections in such
detail as to compromise the secrecy of the information”).
In the realm of national security, courts properly defer to the
Executive’s judgment concerning the risks of disclosing classified
information. See, e.g., Sims, 471 U.S. at 179 (noting that the decisions of the
Director of Central Intelligence “are worthy of great deference given the
magnitude of the national security interests and potential risks at stake”);
Berman, 501 F.3d at 1141-1142 (“judges are poorly positioned to evaluate
the sufficiency of the CIA’s intelligence claims”). The Second Circuit
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recently reiterated the appropriately “deferential posture in FOIA cases
regarding the uniquely executive purview of national security.” Wilner v.
NSA, 592 F.3d at 60, 76 (2d Cir. 2009) (quoting Larson v. Department of State,
565 F.3d 857, 865 (D.C. Cir. 2009)); see also ibid. (“We have consistently
deferred to executive affidavits predicting harm to the national security,
and have found it unwise to undertake searching judicial review. * * *
Recognizing the relative competencies of the executive and judiciary, we
believe that it is bad law and bad policy to second-guess the predictive
judgments made by the government’s intelligence agencies * * *.”) (citations
and quotation marks omitted); Halperin v. CIA, 629 F.2d 144, 148 (D.C. Cir.
1980) (“Judges * * * lack the expertise necessary to second-guess [] agency
opinions in the typical national security FOIA case.”). Thus, “courts are
required to give ‘great deference’ to the CIA’s assertion that a particular
disclosure could reveal intelligence sources or methods.” Berman, 501 F.3d
at 1140. Here, as in Berman, the “declaration[s] strike[] the appropriate
balance between justifying the applicability of the exemption with
sufficient specificity to permit [plaintiffs] meaningfully to challenge it and
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the [government’s] need to avoid providing a description that is so specific
that it risks revealing protected sources and methods.” Id. at 1142.
Plaintiffs argue that additional detail is required by Wiener v. FBI, 943
F.2d 972 (9th Cir. 1991), but that case does not compel the disclosure of
classified details, nor does it preclude reliance on Exemption 1 where
information is, in fact, properly classified but cannot be described in
greater detail on the public record. The Court in Wiener made a record-
specific determination that “[t]he FBI did not disclose all it could” in that
case. Id. at 979. Not so here.
Plaintiffs describe the declarations in this case as “boilerplate.” E.g.,
Pl. Br. 33-34 (citing Wiener). But this Court used the term boilerplate quite
differently in Wiener, where the Court determined that the same non-
specific language had been used in that case and in a D.C. Circuit case
involving a different FOIA request. Wiener, 943 F.2d at 978 & n.7. And the
D.C. Circuit recently explained that there is nothing wrong with agencies
using “the same or similar language in different affidavits supporting
FOIA exemptions” because, “when the potential harm to national security
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in different cases is the same, it makes sense that the agency’s stated
reasons for nondisclosure will be the same.” Larson, 565 F.3d at 868.
Wiener’s concern was not that similar language was used to express
similar concerns with respect to different documents (as in Larson and this
case), but that the justification in the Vaughn index in that case was not
specific to the information being withheld. Wiener quoted the FBI
declaration, and italicized the conditional language. Id. at 978
(emphasizing either, or, For example, and may). The declarations in this case
are specific to the particular withheld information, as much as possible
given the classified nature of the information. For example, Hardy
explained that one document – an FBI Electronic Communication
documenting reporting by an FBI asset – “contains detailed information
provided by human intelligence sources” that is “specific in nature and
reflects a specific vantage point from which the sources are reporting and if
disclosed, would identify the intelligence sources.” ER 617.13 It is not clear
13 This language is quite different from, and far more specific and
certain than, that criticized by the Court in Wiener, 943 F.2d at 978 (“For Continued on next page.
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what more could be said without revealing the very classified information
that must be protected from disclosure (i.e., the specific information
provided by the sources or the specific vantage point that would lead to
disclosure), and plaintiffs offer no constructive suggestions.14 Nor can
plaintiffs prevail by suggesting (Pl. Br. 39) that references to “sources” are
fatal if only a single source is at issue, especially where the prior
paragraphs make clear that a single source is being protected. ER 616.
Moreover, there is no reason to believe that any additional details
about the classified information at issue here would enable plaintiffs to
litigate their FOIA arguments more effectively: “Because of the broad
deference we are to give the CIA under Sims, and because judges are
poorly positioned to evaluate the sufficiency of the CIA’s intelligence
claims, we doubt that the CIA’s provision of a more detailed declaration
example, this information may contain details obtained from a one-on-one
conversation between a source and another individual. It may be of such
detail that it pinpoints a critical time frame or reflects a special vantage
point from which the source was reporting.”) (quoting declaration). 14 Although plaintiffs criticize this explanation, see Pl. Br. 39, they
have not challenged the withholding of the document at issue, and those
arguments have been waived. See ER 276-277 (omitting FBI-ACLU-1-2).
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would enable Berman to argue more effectively for their release.” Berman,
501 F.3d at 1142 (citation omitted) (citing Wiener, 943 F.2d at 983). Knowing
details about (for example) a particular human source whose identity is
classified would not better enable plaintiffs to advance an argument that
the identity of the source is not properly classified. Nor is it relevant to the
Exemption 1 analysis that plaintiffs seek to argue that Hamdan was
mistreated while detained in another country. Such a claim, even if true,
would not defeat the government’s reliance on Exemption 1 to protect
properly classified information.
Plaintiffs also point out (Pl. Br. 31-32) that FOIA permits in camera
review of withheld records or additional information, when necessary in
the discretion of the district court. See 5 U.S.C. § 552(a)(4)(B). But the
district court here was under no obligation to perform in camera review of
the classified information. The declarations and supporting information
were sufficient to permit the district court to determine the applicability of
the claimed exemptions, and the court here properly did so. Cf. NLRB v.
Robbins Tire & Rubber Co., 437 U.S. 214, 224 (1978) (“The in camera review
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provision is discretionary by its terms, and is designed to be invoked when
the issue before the District Court could not be otherwise resolved; it thus
does not mandate that the documents be individually examined in every
case.”). In camera review is burdensome to the court and usually
unnecessary. If there had been any inadequacy in the record (which
includes as much unclassified detail as possible), the district court could
have required submission of classified declarations or even the documents
themselves (or a sample of them) for in camera review. But such review
should be rare and need only be undertaken if deemed necessary by the
district court. See Church of Scientology, 611 F.2d at 743 (“in camera
inspection is a procedure which the trial court need invoke only where it
finds inspection appropriate, in its discretion”); see also Lion Raisins, 354
F.3d at 1083 (“a district court may rely solely on ex parte affidavits only in
the exceptional case”) (quotation marks omitted).
2. a. DIA also invoked Exemption 3 to support its withholding
of the classified information at issue here. The agency relied on two
statutory mandates protecting the information from disclosure: First, 10
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U.S.C. § 424 protects basic information about certain Defense Department
intelligence components, including DIA. That statute provides that “no
provision of law shall be construed to require the disclosure of – (1) the
organization or any function of [DIA]; or (2) the number of [employees]” or
details about those employees. Second, DIA invoked the National Security
Act of 1947, as amended, which provides that “[t]he Director of National
Intelligence shall protect intelligence sources and methods from
unauthorized disclosure.” 50 U.S.C. § 3024(i)(1) (formerly codified at 50
U.S.C. § 403-1(i)(1)).15
Williams explained that § 424 protects information, such as internal
phone numbers, email addresses, and office names and symbols, that could
identify DIA employees, as well as “information that would divulge an
intelligence collection function of the Agency that would risk harm to
15 Plaintiffs do not dispute that the two statutes at issue here – 10
U.S.C. § 424 and 50 U.S.C. § 3024(i)(1) are properly considered Exemption 3
statutes. See Pl. Br. 40 n.26.
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national security.” ER 585.16 DIA withheld the identities of “the countries
and international organizations with which DIA shares intelligence
information” to the extent that information would reveal a DIA
intelligence-collection function. Identifying countries that DIA chooses to
share (or not share) specific intelligence with would “give[] insight into a
critical intelligence function.” Ibid. DIA is specifically charged by
Executive Order with “conduct[ing] foreign defense intelligence liaison
relationships and defense intelligence exchange programs” with foreign
governments and other entities. ER 585-586. Thus, the withheld
information is protected by § 424 because disclosure would reveal a
“function” of DIA (the foreign governments with which the agency does or
does not share intelligence), which Congress specifically exempted from
disclosure.
Williams explained that the withheld classified information is also
protected from disclosure by the National Security Act, 50 U.S.C.
16 Plaintiffs concede that information that would identify DIA
employees is protected by 10 U.S.C. § 424. See Pl. Br. 40.
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§ 3024(i)(1), because the information “involved sources and methods used
by the intelligence agencies of the United States Government.” ER 266.
The information at issue “would illustrate with clarity which sources and
methods are used to conduct the intelligence collection mission.” Ibid.
Foreign governments that share intelligence information with DIA are
intelligence sources, and the sharing of intelligence between DIA and
specific foreign governments is a method of intelligence; both are protected
by the National Security Act.
b. Plaintiffs argue that, because 10 U.S.C. § 424(a)(2) protects the
identities of DIA employees from disclosure, § 424(a)(1) should not be read
to protect an intelligence function from disclosure where plaintiffs seek to
learn the identity of a foreign government. See Pl. Br. 41-42. They suggest
that the statutory protection of employees’ identities would be rendered
superfluous if another provision protects the functions of those same
employees. But that is a non sequitur. The statute protects both the
functions of the agency, in § 424(a)(1), and the identities of its employees,
in § 424(a)(2). Revealing the foreign governments with which DIA shares
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(or does not share) intelligence would reveal a function of the agency, not
the identity of an employee.17
For the same reason, § 424(a) is meaningfully distinct from a separate
statute that limits disclosure of specific CIA information: “the organization,
functions, names, official titles, salaries, or numbers of personnel employed
by the Agency.” 50 U.S.C. § 3507 (formerly 50 U.S.C. § 403g). Plaintiffs
argue (Pl. Br. 42) that § 424(a) should be construed narrowly because a D.C.
Circuit decision characterized § 403g as “creat[ing] a very narrow and
explicit exception to the requirements of the FOIA.” Baker v. CIA, 580 F.2d
664, 670 (D.C. Cir. 1978).18 The court in Baker concluded that “[o]nly the
specific information on the CIA’s personnel and internal structure that is
listed in the statute will obtain protection from disclosure.” Ibid. But that
17 For this reason, plaintiffs gain nothing by citing (Pl. Br. 41) two
district court decisions construing § 424(a)(2) in the context of protecting
the identity of DIA personnel. 18 Baker did not narrowly construe the statute, but held that the
information at issue in that case (information about CIA personnel) was
protected from disclosure. See 580 F.2d at 670 (“we affirm the district
court’s decision that the personnel materials requested by the appellants
were properly withheld by the CIA under exemption 3 of the FOIA”).
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statement would only be relevant to the extent plaintiffs sought
information about DIA personnel (under § 424(a)(2), which is arguably
similar, though not identical to the CIA statute); it is not instructive with
respect to the protection of the DIA’s functions under § 424(a)(1), which
does not share a corollary provision in the CIA statute.
Plaintiffs also argue that DIA’s “function[s]” should be understood
only at the most general level – to include the fact that “DIA generally
communicates with foreign countries,” but not “the names of countries and
organizations with whom it shares information and the contents of their
communications.” Pl. Br. 42-43. But they cite no support for that
interpretation, and it would make no sense. As the record here reflects, it is
publicly known that one of DIA’s functions is to share intelligence
information with other governments. See ER 592 (citing Executive Order).
There is accordingly no need to protect that general information from
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disclosure, and limiting the effect of § 424(a)(1) in such a way would
largely render that provision of the statute meaningless.19
Plaintiffs also seek additional detail about the information withheld
under § 424. See Pl. Br. 43-44. But in the national security context, as we
have explained supra, it is often the case that no more detail can be
provided on the public record without disclosing the very secrets that need
to be protected.
There is, in any event, no need to resolve those questions about the
scope of § 424. Settled precedent confirms that Exemption 3, in conjunction
with the National Security Act, supports the withholding of the DIA
information at issue. The National Security Act protects from disclosure
“intelligence sources and methods.” 50 U.S.C. § 3024(i)(1) (formerly
codified at 50 U.S.C. § 403-1(i)(1)). This Court has described that statutory
19 Plaintiffs argue that the plain language of § 424 should not be given
effect if a DIA function could be understood as “involv[ing] the potential
abduction and torture of U.S. citizens.” Pl. Br. 43. Apart from the absence
of any factual support for plaintiffs’ speculation (there is no basis to
assume that DIA had a role in any such abduction or torture), there is
nothing in the statute to support plaintiffs’ interpretation.
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mandate as a “near-blanket FOIA exemption.” Hunt, 981 F.2d at 1120.
Under the statute, this Court need only decide “whether the withheld
material relates to intelligence sources and methods.” Larson, 565 F.3d at
865.20
Plaintiffs first suggest (Pl. Br. 44) that only the Director of National
Intelligence, not the DIA, is entitled to invoke that statute, but that
argument is plainly wrong, and plaintiffs cite no authority for it.21 The
National Security Act requires the Director of National Intelligence to
“protect intelligence sources and methods from unauthorized disclosure.”
20 Plaintiffs suggest in passing, but do not argue, that the
government’s reliance on the National Security Act might have been
waived. See Pl. Br. 44. But the government explained that there is no bar
to providing additional bases supporting withholding information subject
to an existing exemption claim, and the district court did not disagree. See
ER 230-231 n.16 (citing cases). 21 We are not aware of any court of appeals decision addressing the
question, but the district court for the District of Columbia has expressly
rejected the argument advanced by plaintiffs, holding that “agencies other
than the Director of National Intelligence may rely upon the National
Security Act to withhold information regarding intelligence sources and
methods pursuant to FOIA exemption (b)(3).” DiBacco v. Department of the
Army, __ F. Supp. 2d __, 2013 WL 5377060, *11 (D.D.C. September 26, 2013)
(citing cases).
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50 U.S.C. § 3024(i)(1) (formerly codified at 50 U.S.C. § 403-1(i)(1)). But the
statute does not specify or limit how the Director should ensure that sources
and methods are safeguarded in litigation. Rather, this obligation is one of
several high-level duties given to the Director as the head of the
intelligence community. See 50 U.S.C. §§ 3023-3024. It strains credulity to
suggest that Congress, in creating this important position overseeing more
than a dozen intelligence agencies, intended for the Director to become
personally involved in every case that threatened to disclose the
government’s intelligence sources and methods. The Director may fulfill
his statutory mandate by the actions of the intelligence agencies he
oversees.22
22 Similarly, even though a privilege in civil litigation might need to
be asserted by a particular government official, that does not preclude an
agency FOIA officer from justifying the withholding of privileged
information under a FOIA exemption. See, e.g., Lardner v. DOJ, 2005 WL
758267, at *6 (D.D.C. Mar. 31, 2005) (“Even assuming that the President
must personally invoke the presidential communications privilege in civil
discovery, * * * this rule should not be imported into the far different
context of FOIA.”).
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Exemption 3 claims under the National Security Act have always
operated this way. Courts of appeals – including this Court – have for
decades upheld Exemption 3 claims made by persons other than the
Director of National Intelligence (or the Director of Central Intelligence
before him), and indeed have continued to uphold Exemption 3 claims
asserted by CIA officials even after the statutory duty to protect
intelligence sources and methods was transferred from the CIA Director to
the Director of National Intelligence. See, e.g., ACLU v. Department of
Defense, 628 F.3d 612, 625 (D.C. Cir. 2011) (CIA); Berman, 501 F.3d at 1140
(CIA); Lahr, 569 F.3d at 985 (National Security Agency); Larson, 565 F.3d at
865, 868-869 (CIA and National Security Agency); Wolf v. CIA, 473 F.3d 370,
378 (D.C. Cir. 2007) (CIA); Krikorian v. Department of State, 984 F.2d 461, 466
(D.C. Cir. 1993) (State Department).
Finally, plaintiffs suggest that the identities of foreign governments
cannot be intelligence sources and methods within the meaning of the
National Security Act. See Pl. Br. 44-45. That argument is directly
foreclosed by Supreme Court and Circuit precedent. The definition of
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sources and methods under the National Security Act is broad: “The ‘plain
meaning’ of [the Act] may not be squared with any limiting definition that
goes beyond the requirement that the information fall within the Agency’s
mandate to conduct foreign intelligence.” Sims, 471 U.S. at 169; see also,
e.g., Berman, 501 F.3d at 1140 (“The term ‘sources’ is to be broadly
construed and encompasses not only ‘secret agents,’ but instead reaches all
sources of information the [intelligence agency] relies upon, including
publicly available information.”). The Supreme Court and this Court have
further made clear that the Executive Branch receives “great deference” in
determining what types of information constitute sources and methods of
intelligence gathering. Sims, 471 U.S. at 179; Berman, 501 F.3d at 1140; see
also Phillippi v. CIA, 655 F.2d 1325, 1332 (D.C. Cir. 1981) (CIA affidavits on
Exemption 3 claims are to be accorded substantial weight); Halperin, 629
F.2d at 147-148 (same). Indeed, the deference due when the government
invokes Exemption 3 and the National Security Act is even greater than the
(already substantial) deference due to the government’s view about the
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harm to national security from disclosure of classified information under
Exemption 1. See Berman, 501 F.3d at 1142 n.3.
Moreover, as we have already explained, the withheld information is
properly classified national security information, and protected by
Exemption 1 in any event. Thus, for plaintiffs to prevail, they must show
that both Exemption 1 and Exemption 3 are inapplicable. Because the
sensitive intelligence information at issue here is protected from disclosure
by multiple, overlapping authorities, this Court should reject plaintiffs’
effort to require greater disclosure.23
B. Exemption 7(E) Protects Information Concerning Law-
Enforcement Investigations.
1. Exemption 7(E) applies where release of information (1)
“would disclose techniques and procedures for law enforcement
investigations or prosecutions,” or (2) “would disclose guidelines for law
enforcement investigations or prosecutions if such disclosure could
23 Even if plaintiffs were to prevail, the only appropriate relief at this
stage would be to provide the government with an opportunity to offer
additional, in camera and ex parte explanations of the reasons that the
withheld information comes within the FOIA exemptions.
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reasonably be expected to risk circumvention of the law.” 5 U.S.C.
§ 552(b)(7)(E).24 FBI withheld three categories of information under
Exemption 7(E): information that would reveal “procedures and techniques
used by FBI agents to conduct national security investigations,”
information identifying the location and identity of FBI units involved in
the investigations at issue, and the dates and types of investigations
(whether preliminary or full investigations), as well as the basis for
initiating the investigations. ER 254-256, 636-638. Of those, plaintiffs
challenge only information in the first category, withheld from five
documents in full and 10 documents in part (eight of those also include
information withheld under Exemption 1, and are included in the nine
partially withheld documents discussed above). ER 276-277.25 Those
24 Plaintiffs suggest in a footnote that the district court applied the
wrong standard to address Exemption 7(E). See Pl. Br. 45 n.29. While the
court referred to balancing the public interest in disclosure against the
“privacy and law enforcement efficacy interests at stake,” ER 4, any error
was harmless because Exemption 7(E) is not subject to balancing. 25 Some of the information withheld under Exemption 7(E) is also
subject to withholding under Exemption 5, because it is privileged (which
plaintiffs do not challenge on appeal), as well as Exemption 1. ER 281-282.
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documents consist of internal FBI e-mails, reports, memoranda, internal
FBI forms, and database search printouts regarding investigations
conducted by FBI.
The information protected here concerns law enforcement
“techniques and procedures related to surveillance and credit searches,” as
well as (with respect to one document) “a stratagem [employed by FBI], the
details of which if revealed would preclude its use in future cases.” ER
258, 254. Hardy explained that revealing additional information about the
procedures and techniques used in national security investigations “could
enable subjects of FBI investigations to circumvent similar currently used
techniques and procedures used by law enforcement,” which would
diminish the benefit of those techniques and procedures. ER 254, 259, 636.
Moreover, the “accumulation of information by other investigative subjects
* * * could enable criminals to educate themselves,” allowing them “to take
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countermeasures to circumvent the effectiveness of these techniques and
procedures and to continue to violate the law.” Ibid.26
2. Plaintiffs seek additional details about the nature of the
investigative techniques at issue. See Pl. Br. 47-48. In district court, Hardy
provided some additional detail – again, as much as possible without
disclosing the information required to be kept secret. See ER 258
(“techniques and procedures related to surveillance and credit searches”);
ER 254 (“a stratagem, the details of which if revealed would preclude its
use in future cases”).27 The techniques and procedures at issue are specific
methods used by FBI in national security investigations, not merely
common surveillance or credit searches generally. It is not enough for
26 Plaintiffs do not take issue with the other two types of law-
enforcement information withheld under Exemption 7(E): information
about the location and identity of particular FBI units involved in the
underlying national security investigations, and the dates and types of
investigations (whether preliminary or full investigations), as well as the
basis for initiating the investigations. ER 255-256, 636-638. 27 Plaintiffs assume that “elaborate surveillance of Muslims” and
“proxy detention” are among the procedures and techniques protected
from disclosure under Exemption 7(E). Pl. Br. 48-53. But that assumption
is neither warranted nor correct.
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plaintiffs to contend that the general categories of surveillance and credit
searches may be “widely known to the public” or “common knowledge,”
Pl. Br. 47-48, where additional details about those techniques cannot be
described publicly. “[T]echniques and procedures may be exempt even if
they are known to the public to some extent if disclosure of the
circumstances of their use could lessen their effectiveness.” Hale v. DOJ,
973 F.2d 894, 902-903 (10th Cir. 1992), cert. granted, vacated & remanded
on other grounds, 509 U.S. 918 (1993); see also, e.g., Bowen v. FDA, 925 F.2d
1225, 1229 (9th Cir. 1991) (additional details of law-enforcement techniques
exempt from disclosure even where some information about techniques
previously disclosed). Thus, while it may be publicly known (for example)
that the FBI conducts various types of surveillance, operational details
about when, how, where, and under what circumstances the surveillance is
conducted are generally not public and, if disclosed, would undermine the
effectiveness of the technique.
Plaintiffs argue that the Court should presume that the techniques
and procedures at issue in one document – an FBI Electronic
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Communication reporting milestones of operational travel, ER 25-29 – “are
illegal or of questionable legality.” Pl. Br. 49-50, 51 (quoting Wilkinson v.
FBI, 633 F. Supp. 336, 349 (C.D. Cal. 1986)). But there is no basis for that
assumption. It is not enough merely to assert (Pl. Br. 52) that an individual
was detained and tortured by a foreign government, where the United
States government had no role in any improper conduct. Plaintiffs’
unfounded and unexplained assumption of illegality is insufficient to
disregard the explanations in the record supporting the applicability of
Exemption 7(E). Cf. Favish, 541 U.S. at 175 (“Allegations of government
misconduct are easy to allege and hard to disprove”) (internal quotation
marks omitted).
Finally, plaintiffs argue that more detail is required to show that
disclosure of the law-enforcement techniques and procedures here would
risk circumvention of the law. See Pl. Br. 52-53. But there is no such
requirement under Exemption 7(E), which includes two separate
subsections: the first refers to law enforcement “techniques or procedures,”
and the second to “guidelines for law enforcement investigations or
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prosecutions.” 5 U.S.C. § 552(b)(7)(E); see also Allard K. Lowenstein Intern.
Human Rights Project v. DHS, 626 F.3d 678, 681-682 (2d Cir. 2010). The
latter category (“guidelines for law enforcement investigations or
prosecutions”) may be withheld only if “disclosure could reasonably be
expected to risk circumvention of the law.” 5 U.S.C. § 552(b)(7)(E). No such
showing is required for the withholding of law enforcement “techniques or
procedures,” however, which receive categorical protection from
disclosure. See Smith v. ATF, 977 F. Supp. 496, 501 (D.D.C. 1997).
In any event, even if the risk-of-circumvention requirement were to
apply to the first clause of Exemption 7(E), Hardy explained why that risk
would flow from disclosure of the techniques and procedures at issue here.
ER 254-256, 258-259, 636-638. Contrary to plaintiffs’ argument (Pl. Br. 52-
53), there is no requirement that the government point to a specific statute
or otherwise lay out in detail particular scenarios demonstrating how
criminals might circumvent the law. Exemption 7(E) “is written in broad
and general terms.” Mayer Brown LLP v. IRS, 562 F.3d 1190, 1193 (D.C. Cir.
2009); see also id. at 1194 (“Rather than requiring a highly specific burden
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of showing how the law will be circumvented, exemption 7(E) only
requires that the [government] demonstrate logically how the release of the
requested information might create a risk of circumvention of the law.”)
(quotation marks and brackets omitted); Blackwell v. FBI, 646 F.3d 37, 42
(D.C. Cir. 2011) (“Exemption 7(E) sets a relatively low bar for the agency to
justify withholding”). The Government thus need not show that
circumvention of the law as the result of the disclosure is certain or even
likely. Mayer Brown, 562 F.3d at 1193. Rather, information is exempt if
disclosure “could increase the risks that a law will be violated or that past
violators will escape legal consequences.” Ibid. Even the risk that such
information will “embolden[]” a person to attempt to break the law is
sufficient to justify withholding. Id. at 1194. Plaintiffs (Pl. Br. 52-53) cite
some cases that have included more detailed discussions of evasion in
different circumstances, but those cases do not hold that any such level of
detail is required to come within the first clause of Exemption 7(E).
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III. THE DOCUMENTS PRODUCED TO PLAINTIFFS PROPERLY SEGREGATED
EXEMPT INFORMATION FROM RESPONSIVE RECORDS.
Finally, plaintiffs argue that the district court should have included in
its decision specific findings concerning the segregability of each document
containing full or partial withholdings. That argument should be rejected.
The record here demonstrates that the government segregated the exempt
information properly. The parties in this case briefed the issue of
segregability, see ER 231, 271, 274; Dkt# 29-1, at 17, 25-26, 45, 71; Dkt# 42-1,
at 22, and the record amply demonstrates that the government satisfied its
obligation to segregate all exempt information, and to produce all
reasonably segregable non-exempt information. See ER 175, 226, 586, 610,
613, 638; Dkt# 29-34, at 40; Dkt# 64-3, at 3, 5.
Segregability, like most other questions in a FOIA case, can and
should normally be resolved on the basis of declarations.28 See Pacific
28 Plaintiffs confuse the segregability issue by also urging in camera
review. See Pl. Br. 55 (“This Court must remand to require such findings,
and to review the relevant withheld documents in camera to ensure
disclosure of all non-exempt information.”). But it is well established that
in camera review should be undertaken only in the exceptional case, not as
a routine matter. See supra, 42-43.
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Fisheries, Inc. v. United States, 539 F.3d 1143, 1148 (9th Cir. 2008) (“The
agency can meet its burden [of establishing that all reasonably segregable
portions of a document have been segregated and disclosed] by offering an
affidavit with reasonably detailed descriptions of the withheld portions of
the documents and alleging facts sufficient to establish an exemption.”).
Here, the government satisfied its segregability burden in the Vaughn
index, and the grant of summary judgment implicitly reflects the court’s
determination that the government had satisfied its obligations. The
district court was clearly aware of the segregability requirement. See ER 6
n.1 (noting segregability requirement does not apply to “documents * * *
withheld for attorney-client or work product privilege”) (citing Pacific
Fisheries, 539 F.3d at 1148). In these circumstances, the omission of a
specific reference to segregability in the district court decision does not
require reversal or remand.
In addition to the explanations in declarations in the Vaughn index
here (cited supra, 62), the government produced many pages in redacted
form, specifically identifying the exemptions relied on for each portion
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redacted. Those redactions are carefully limited, confirming the careful
effort undertaken to release any reasonably segregable non-exempt
information. See, e.g., ER 75-86 (cited in Pl. Br. 55).29 Those careful
redactions confirm that the agencies properly withheld only the exempt
information, and produced all information that was reasonably segregable.
See, e.g., ER 212 (“There is no additional information not subject to a FOIA
exemption that may be segregated and released.”).
Thus, the record here was sufficient for the district court to conclude
that the government satisfied its segregability obligation. If there is any
question about the district court’s determination, there is no need for a
remand because this Court may assess that question independently based
on the existing record. See Juarez v. DOJ, 518 F.3d 54, 60 (D.C. Cir. 2008)
(concluding that, based on appellate court’s review of agency affidavits,
"no part of the requested documents was improperly withheld," and
finding no remand necessary).
29 The redaction of the classified, pre-decisional draft text at ER 76-80,
is amply explained in the record. See ER 211-212.
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CONCLUSION
For the foregoing reasons, the judgment of the district court should
be affirmed.
Respectfully submitted,
STUART F. DELERY Assistant Attorney General
ANDRÉ BIROTTE, JR. United States Attorney
MATTHEW COLLETTE (202) 514-4214 /s/ H. Thomas Byron III
H. THOMAS BYRON III (202) 616-5367 Attorneys, Appellate Staff Civil Division, Room 7260 U.S. Department of Justice 950 Pennsylvania Ave., N.W. Washington, D.C. 20530
MARCH 2014
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CERTIFICATE OF COMPLIANCE WITH
FEDERAL RULE OF APPELLATE PROCEDURE 32(a)
I hereby certify that this brief complies with the requirements of Fed.
R. App. P. 32(a)(5) and (6) because it has been prepared in 14-point Palatino
Linotype, a proportionally spaced font.
I further certify that this brief complies with the type-volume
limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 11,487 words,
excluding the parts of the brief exempted under Rule 32(a)(7)(B)(iii),
according to the count of Microsoft Word.
/s/ H. Thomas Byron III
H. THOMAS BYRON III
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CERTIFICATE OF SERVICE
I hereby certify that on March 6, 2014, I electronically filed the
foregoing Brief For The Appellees by using the appellate CM/ECF system.
The participants in the case are registered CM/ECF users and service
will be accomplished by the appellate CM/ECF system.
/s/ H. Thomas Byron III
H. THOMAS BYRON III
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STATEMENT OF RELATED CASES
Respondents are not aware of any cases in this Court that are related within
the meaning of this Court's Rule 28-2.6.
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