Aclu of No. Calif. v. Fbi ( 2018 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
AMERICAN CIVIL LIBERTIES No. 16-15178
UNION OF NORTHERN
CALIFORNIA; ASIAN LAW D.C. No.
CAUCUS; SAN FRANCISCO BAY 3:10-cv-03759-RS
GUARDIAN,
Plaintiffs-Appellees,
OPINION
v.
FEDERAL BUREAU OF
INVESTIGATION,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of California
Richard Seeborg, District Judge, Presiding
Argued and Submitted October 19, 2017
San Francisco, California
Filed February 1, 2018
2 ACLU OF N. CAL. V. FBI
Before: Sandra S. Ikuta and Andrew D. Hurwitz, Circuit
Judges, and James S. Gwin, * District Judge.
Opinion by Judge Hurwitz
SUMMARY **
Freedom of Information Act
The panel vacated the district court’s summary judgment
that was entered in favor of the plaintiffs who had submitted
Freedom of Information Act (“FOIA”) requests to the
Federal Bureau of Investigation; and remanded for further
proceedings.
Exemption 7 of FOIA governs disclosure of records or
information complied for law enforcement purposes.
The panel held that for generalized records, such as
training manuals and guidelines, the government’s burden
under Exemption 7 of demonstrating that withheld materials
were “complied for law enforcement purposes” can be
satisfied without linking the documents to the enforcement
of a particular statute. The panel further held that the agency
need only establish a rational nexus between the withheld
document and its authorized law enforcement activities. If
such a showing is made, the district court can then determine
whether disclosure would cause any of the specific harms
*
The Honorable James S. Gwin, United States District Judge for the
Northern District of Ohio, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
ACLU OF N. CAL. V. FBI 3
identified in Exemptions 7(A)–(F), 5 U.S.C. 552(b)(7)(A)-
(F). The panel expressed no opinion as to whether the
documents at issue in this case met the Exemption 7
threshold, nor whether those that do are protected from
disclosure under Exemption 7(A)-(F). The panel remanded
for the district court to make such determinations in the first
instance.
COUNSEL
August E. Flentje (argued) and H. Thomas Byron III,
Appellate Staff; Brian Stretch, United States Attorney; Civil
Division, United States Department of Justice, San
Francisco, California; for Defendant-Appellant.
Angela Elaine Kleine (argued), Jacob P. Ewerdt, and
Somnath Raj Chatterjee, Morrison & Foerster LLP, San
Francisco, California; Christina Sinha, Asian Americans
Advancing Justice – Asian Law Caucus, San Francisco,
California; Lynda Lye and Julia Harumi Mass, American
Civil Liberties Union Foundation of Northern California
Inc., San Francisco, California; for Plaintiffs-Appellees.
4 ACLU OF N. CAL. V. FBI
OPINION
HURWITZ, Circuit Judge:
This case requires us to once again construe Exemption
7 of the Freedom of Information Act (“FOIA”), 5 U.S.C.
§ 552(b)(7), which governs disclosure of “records or
information compiled for law enforcement purposes.”
In analyzing FOIA requests to law enforcement agencies
for disclosure of investigatory materials, we have long held
that the government need only show a “rational nexus”
between enforcement of federal law and a withheld
document to invoke Exemption 7. See, e.g., Rosenfeld v.
U.S. Dep’t of Justice, 57 F.3d 803, 808 (9th Cir. 1995). But,
we have not yet decided whether the same standard governs
requests for more generalized records, such as training
manuals and guidelines.
We today hold that for such records, the government’s
burden under Exemption 7 of demonstrating that withheld
materials were “compiled for law enforcement purposes”
can be satisfied without linking the documents to the
enforcement of a particular statute.
I.
Concerned about alleged surveillance of Muslim-
Americans, the ACLU of Northern California, the Asian
Law Caucus, and the San Francisco Bay Guardian
(collectively, “the ACLU”) submitted two FOIA requests to
the FBI in 2010. The first sought disclosure of documents
and data about surveillance and infiltration, including
records of “[t]raining for FBI agents regarding Islam,
Muslim culture, and/or Muslim, Arab, South Asian, or
Middle Eastern communities in the United States.” The
ACLU OF N. CAL. V. FBI 5
ACLU also sought records of “FBI investigations and
assessments of mosques; Islamic centers; Muslim
community centers; members of mosques, Islamic centers or
Muslim community centers based on their membership or
affiliation with such centers; Muslim leaders; and imams.”
The second request sought information regarding the FBI’s
“mapping” of communities and businesses based on race and
ethnicity.
After receiving no disclosures, the ACLU filed this suit.
The FBI then released over 50,000 full or redacted pages,
but withheld 47,794 pages under various FOIA exemptions,
agreeing to provide Vaughn indexes for a designated sample
of the withheld documents. 1 The parties then filed cross-
motions for summary judgment, centered on whether the
FBI could withhold documents under Exemption 7. The
district court held that the FBI had not shown a “‘rational
nexus’ between the enforcement of a federal law, and the
documents it claims are exempt from disclosure,” and
granted summary judgment to the ACLU.
In its summary judgment order, the district court
acknowledged that Ninth Circuit cases requiring a nexus
between withheld documents and a specific federal law
“arose from the withholding of solely investigatory records,
and therefore differ meaningfully from the present instance,
which also concerns policy and training documents.” But,
the court found “no indication in the statute or case law . . .
permit[ting] the drawing of such distinctions.” The district
1
A “Vaughn index” identifies each document withheld and the
FOIA exemption claimed, and explains how disclosure would damage
the interests protected by the claimed exemption. See Wiener v. FBI,
943 F.2d 972, 977 (9th Cir. 1991); Vaughn v. Rosen, 484 F.2d 820, 827
(D.C. Cir. 1973).
6 ACLU OF N. CAL. V. FBI
court entered final judgment in favor of the ACLU, and the
FBI timely appealed.
We have jurisdiction under 28 U.S.C. § 1291 and review
the district court’s summary judgment de novo. Animal
Legal Def. Fund v. FDA, 836 F.3d 987, 990 (9th Cir. 2016)
(en banc) (per curiam).
II.
“The Freedom of Information Act seeks ‘to ensure an
informed citizenry, vital to the functioning of a democratic
society.’” Tuffly v. U.S. Dep’t of Homeland Sec., 870 F.3d
1086, 1092 (9th Cir. 2017) (quoting NLRB v. Robbins Tire
& Rubber Co., 437 U.S. 214, 242 (1978)). Accordingly, “the
Act requires that federal agencies make records within their
possession promptly available to citizens upon request.” Id.But, “this command is not absolute.” Id. Rather, because
“Congress recognized that . . . transparency may come at the
cost of legitimate governmental and privacy interests . . . the
Act provides for nine specific exemptions.” Id.; see 5 U.S.C.
§ 552(b). Exemption 7 protects “records or information
compiled for law enforcement purposes” from disclosure,
“but only to the extent that the production of such law
enforcement records or information” would cause one of six
enumerated harms. 5 U.S.C. § 552(b)(7)(A)–(F). Thus, a
court must first decide whether a document was “compiled
for law enforcement purposes” before turning to whether an
enumerated harm exists.
In considering FOIA requests for information collected
through investigations of individuals or groups, we have
stressed that “[a]n agency which has a clear law enforcement
mandate, such as the FBI, need only establish a ‘rational
nexus’ between enforcement of a federal law and the
document for which an exemption is claimed,” Church of
ACLU OF N. CAL. V. FBI 7
Scientology of Cal. v. U.S. Dep’t of Army, 611 F.2d 738, 748
(9th Cir. 1979), overruled on other grounds by Animal Legal
Def. Fund, 836 F.3d at 990; see also Rosenfeld, 57 F.3d at
808, or “a ‘rational nexus’ between its law enforcement
duties” and such documents, Binion v. U.S. Dep’t of Justice,
695 F.2d 1189, 1194 (9th Cir. 1983); see also Wiener,
943 F.2d at 985 (same). For example, in Binion we found
that withheld documents pertaining to an FBI investigation
of a presidential pardon were subject to Exemption 7
because “FBI pardon applicant investigations are authorized
by federal regulation and are part of the duties of this law
enforcement agency.” 695 F. 2d at 1194. 2
Our precedents rest on the premise that Exemption 7
cannot be used as “pretext” to withhold documents related to
“generalized monitoring and information-gathering that are
not related to the [agency’s] law enforcement duties.”
Rosenfeld, 57 F.3d at 809 (quoting Lamont v. Dep’t of
Justice, 475 F. Supp. 761, 775 (S.D.N.Y. 1979)). Thus,
when the government collects information on individuals
and groups, Exemption 7 is available only when the
investigation has a rational nexus to a law that the agency is
authorized to enforce, see id. at 810–11 (involving UC
2
The Third and District of Columbia Circuits employ versions of
the “rational nexus” test when analyzing FOIA requests for investigatory
materials. See Abdelfattah v. U.S. Dep’t of Homeland Sec., 488 F.3d
178, 184 (3d Cir. 2007) (per curiam); Pratt v. Webster, 673 F.2d 408,
420–21 (D.C. Cir. 1982). Other circuits apply a “per se” rule, under
which “documents compiled by law enforcement agencies are inherently
records compiled for law enforcement purposes within the meaning of
Exemption 7.” Jordan v. U.S. Dep’t of Justice, 668 F.3d 1188, 1193
(10th Cir. 2011) (citation and internal quotation marks omitted); see
Jones v. FBI, 41 F.3d 238, 245–46 (6th Cir. 1994); Williams v. FBI,
730 F.2d 882, 883–86 (2d Cir. 1984); Kuehnert v. FBI, 620 F.2d 662,
666–67 (8th Cir. 1980); Irons v. Bell, 596 F.2d 468, 473–76 (1st Cir.
1979). The government does not ask us today to adopt the “per se” test.
8 ACLU OF N. CAL. V. FBI
Berkeley’s “Free Speech Movement” and other individuals);
Church of Scientology, 611 F.2d at 748–49 (involving the
Church of Scientology and founder L. Ron Hubbard), or a
rational nexus to law enforcement duties, see Wiener,
943 F.2d at 985–86 (involving John Lennon).
In light of these decisions, the district court held that,
with respect to investigatory materials, the FBI was required
to identify a nexus to federal law that the agency sought to
enforce, and that ruling is not at issue on appeal. But, the
ACLU sought more here; it also requested documents
compiled for general law enforcement purposes and not
linked to a particular investigation. The district court held
that our precedents also controlled the analysis in this
distinct context.
We disagree. “[L]aw enforcement agencies such as the
FBI should be accorded special deference in an Exemption
7 determination.” Binion, 695 F.2d at 1193. Given such
deference, the FBI can surely compile documents for law
enforcement purposes without a pre-existing nexus to the
enforcement of a specific federal law. For example, an FBI
policy about when to seek warrants to search religious
institutions and how to conduct searches of such locations
would plainly be a document compiled for “law enforcement
purposes.” However, the document would not have a nexus
to the enforcement of a particular statute until a search is
conducted. It would instead apply to the enforcement of all
or many of the statutes the FBI is charged with enforcing and
to the FBI’s law enforcement duties in general. Exemption
7 applies on its face to “records or information compiled for
law enforcement purposes.” 5 U.S.C. § 552(b)(7). It would
be anomalous to deny the benefit of the Exemption to
documents that plainly meet its facial requirements because,
although they apply to the FBI’s law enforcement duties,
ACLU OF N. CAL. V. FBI 9
they are not yet tied to a particular investigation conducted
pursuant to a particular federal law.
Nor does FOIA require us to do so. Although Exemption
7 originally applied only to “investigatory records,” a 1986
amendment broadened it to cover “records or information.”
Freedom of Information Reform Act of 1986, Pub. L. No.
99-570, § 1802(a), 100 Stat. 3207, 3207-48–49. This
amendment was intended to “resolve any doubt that law
enforcement manuals and other non-investigatory materials
can be withheld under [Exemption 7].” S. Rep. No. 98-221,
at 23 (1983); see Tax Analysts v. IRS, 294 F.3d 71, 79 (D.C.
Cir. 2002) (“[T]he legislative history makes it clear that
Congress intended the amended exemption to protect both
investigatory and non-investigatory materials, including law
enforcement manuals and the like.”). At the same time,
Congress amended Exemption 7(E) to allow withholding of
“records or information compiled for law enforcement
purposes” to the extent production “would disclose
guidelines for law enforcement investigations or
prosecutions if such disclosure could reasonably be expected
to risk circumvention of the law.” 5 U.S.C. § 552(b)(7)(E). 3
Thus, the statutory scheme plainly contemplates that
guidelines and similar general documents will be evaluated
3
The amendment to Exemption 7(E) was “intended to address some
confusion created by the D.C. Circuit’s en banc holding in Jordan v. U.S.
Dep’t. of Justice, 591 F.2d 753 (D.C. Cir. 1978), denying protection for
prosecutorial discretion guidelines under [FOIA Exemption 2].” S. Rep.
No. 98-221, at 25 (1983); see also Tax Analysts, 294 F.3d at 79 (quoting
5 U.S.C. § 552(b)(7)(E)) (“Congress also amended Exemption 7(E) to
permit withholding of ‘guidelines for law enforcement investigations or
prosecutions if such disclosure could reasonably be expected to risk
circumvention of the law,’ thus giving further indication that the
statutory threshold was not limited to records or information addressing
only individual violations of the law.”).
10 ACLU OF N. CAL. V. FBI
under Exemption 7(E). Exemption 7(E) perforce comes into
play only after the government meets its threshold burden to
qualify for Exemption 7. Congress surely would not have
specifically protected the type of information described in
Exemption 7(E) from disclosure if the Exemption 7
threshold always precluded the government from seeking
this protection.
The Supreme Court’s opinion in Milner v. Department
of the Navy, 562 U.S. 562 (2011), supports this conclusion.
Before that opinion was issued, we had read FOIA
Exemption 2, 5 U.S.C. § 552(b)(2), which protects
documents “related solely to the internal personnel rules and
practices of an agency,” as applying not only to “mundane
employment matters” (“Low 2” matters), but also to rules
and practices the “disclosure of which ‘may risk
circumvention of agency regulation’” (“High 2” matters).
Milner v. U.S. Dep’t of Navy, 575 F.3d 959, 963–64 (9th Cir.
2009) (citing Dep’t of Air Force v. Rose, 425 U.S. 352, 369
(1976)). In applying Exemption “High” 2, we had found
various guidance and training materials protected from
FOIA requests. See id. at 961 (ammunition storage
information); Dirksen v. DHHS, 803 F.2d 1456, 1458–59
(9th Cir. 1986) (internal “Medicare Policy Guidelines”);
Hardy v. ATF, 631 F.2d 653, 654–55 (9th Cir. 1980) (law
enforcement manual “Raids and Searches”). But, the
Supreme Court held in Milner that Exemption 2 only
protects “Low 2” materials. 562 U.S. at 564–65. In so
holding, the Court reasoned that it “cannot think of any
document eligible for withholding under Exemption 7(E)
that the High 2 reading does not capture.” Id. at 575.
Similarly, it is difficult to imagine non-investigatory
documents eligible for withholding under Exemption 7(E)
that could pass through the Exemption 7 threshold under the
ACLU OF N. CAL. V. FBI 11
district court’s interpretation. Thus, were we to deny the
application of Exemption 7 to generalized law enforcement
documents simply because the government could not link
them to enforcement of a specific law, the additional
protections that Congress provided to those very documents
in Exemption 7(E) would be nullified. Indeed, we have
implicitly adopted this approach by analyzing documents
under Exemption 7(E) without questioning whether they
were “compiled for law enforcement purposes.” See
Hamdan v. U.S. Dep’t of Justice, 797 F.3d 759, 777–78 (9th
Cir. 2015) (upholding the FBI’s withholding of documents
containing law enforcement techniques for surveillance and
credit searches under Exemption 7(E)); see also ACLU of N.
Cal. v. U.S. Dep’t of Justice, — F.3d — (9th Cir. Jan 18,
2018) (analyzing a FOIA request for law enforcement
techniques and guidelines under Exemption 7(E)).
We therefore hold that when a FOIA request seeks
guidelines and other generalized documents compiled by a
law enforcement agency not related to a particular
investigation, the government need not link the document to
the enforcement of a particular statute in order to claim the
protection of Exemption 7. Rather, the agency need only
establish a rational nexus between the withheld document
and its authorized law enforcement activities. If such a
showing is made, the district court can then determine
whether disclosure would cause any of the specific harms
identified in Exemptions 7(A)–(F), 5 U.S.C.
§ 552(b)(7)(A)–(F).
There is no “one-size-fits-all” test for the required
demonstration. For example, the FBI could easily meet the
threshold Exemption 7 burden for a document that gives
guidelines for searches incident to arrest because its general
law enforcement duties routinely involve such searches. But
12 ACLU OF N. CAL. V. FBI
it would be more difficult to prove, and require greater
evidence to demonstrate, a nexus between an FBI
investigation into a “highly controversial figure in California
education” whom the FBI was attempting to have removed
from office and “a plausible law enforcement purpose.”
Rosenfeld, 57 F.3d at 809. And, for some records, it may be
impossible to prove a rational nexus to valid law
enforcement purposes. 4
This approach is similar to that of the District of
Columbia Circuit. When considering investigatory
materials, that court requires that an agency invoking
Exemption 7 show that the investigatory activity that gave
rise to the documents is “related to the enforcement of
federal laws” and there is a “rational nexus” between the
investigation at issue and the agency’s law enforcement
duties. Pratt, 673 F.2d at 420–21. But, that court did not
require such a showing when considering requests for non-
investigatory materials, instead holding that IRS “internal
agency material relating to guidelines, techniques, and
procedures for law enforcement investigations and
prosecutions outside of the context of a specific
investigation” facially meet the Exemption 7 threshold and
require further analysis under Exemption 7(E). Tax
Analysts, 294 F.3d at 78. See Sack v. U.S. Dep’t of Def.,
823 F.3d 687, 693–94 (D.C. Cir. 2016) (holding reports on
the efficacy of polygraph examinations were “compiled for
law enforcement purposes”); Morley v. CIA, 508 F.3d 1108,
1128–29 (D.C. Cir. 2007) (holding CIA clearance and
4
We consider today the FBI, an agency with a clear law enforcement
mandate. See Church of Scientology, 611 F.2d at 748. We express no
opinion as to the application of Exemption 7 to “mixed” agencies with
“both administrative and law enforcement functions.” See id.
ACLU OF N. CAL. V. FBI 13
investigatory processes and related law enforcement
techniques and procedures exempt under Exemption 7(E));
PHE, Inc. v. Dep’t of Justice, 983 F.2d 248, 251 (D.C. Cir.
1993) (finding manual exempt under Exemption 7(E)). 5
III.
We express no opinion as to whether the documents at
issue in this case meet the Exemption 7 threshold, nor
whether those that do are protected from disclosure under
Exemptions 7(A)–(F). Rather, we remand for the district
court to make such determinations in the first instance.
The judgment of the district court is VACATED and this
case is REMANDED for further proceedings consistent
with this opinion.
5
The Third Circuit has taken a similar approach. See Frankenberry
v. FBI, 567 F. App’x 120, 124 (3d Cir. 2014) (holding that records
concerning polygraph examination procedures and other law
enforcement techniques are protected from disclosure under Exemption
7(E)).