Sack v. United States Department of Defense , 823 F.3d 687 ( 2016 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 18, 2016 Decided May 20, 2016
No. 14-5039
KATHRYN SACK,
APPELLANT
v.
UNITED STATES DEPARTMENT OF DEFENSE,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:12-cv-01754)
Kelly B. McClanahan argued the cause and filed the briefs
for appellant.
Peter R. Maier, Assistant U.S. Attorney, argued the cause
for appellee. With him on the brief was R. Craig Lawrence,
Assistant U.S. Attorney. Jane M. Lyons, Assistant U.S.
Attorney, entered an appearance.
Before: TATEL, GRIFFITH, and KAVANAUGH, Circuit
Judges.
Opinion for the Court filed by Circuit Judge KAVANAUGH.
2
KAVANAUGH, Circuit Judge: The Government charges
fees to process FOIA requests. Those fees can be significant –
in this case about $900 – and can deter or prevent citizens from
making FOIA requests.
By statute, educational institutions are eligible for
reduced fees when they make FOIA requests. The
Government has long determined that teachers who make
FOIA requests are eligible for those reduced fees because
teachers are part of an educational institution. But at the same
time, the Government has determined that students who make
FOIA requests are not eligible for those reduced fees because
they are supposedly not part of an educational institution.
We disagree with the Government’s slicing of the term
“educational institution.” If teachers can qualify for reduced
fees, so can students. Students who make FOIA requests to
further their coursework or other school-sponsored activities
are eligible for reduced fees under FOIA because students, like
teachers, are part of an educational institution. The student
involved in this case, Kathryn Sack, therefore is eligible for
reduced fees for her FOIA requests. We reverse the contrary
judgment of the District Court on that question, and affirm in
all other respects.
I
While pursuing her Ph.D. in Politics at the University of
Virginia, Kathryn Sack submitted FOIA requests to the
Department of Defense. 1 Sack sought Department reports
about its use of polygraph examinations, as well as related
1
To be precise, Sack submitted the requests to multiple
agencies within the Department. For ease of reference, we will
refer to the agencies as “the Department.”
3
documents about those examinations. Sack told the
Department that she intended to use the requested information
for her dissertation on polygraph bias.
Sack asked the Department to categorize her as an
educational-institution requester. Under FOIA, government
agencies may charge fees for processing FOIA requests. But
FOIA limits the fees that an agency may charge for processing
FOIA requests made by an educational institution.
For one batch of Sack’s requests, the Department of
Defense refused to categorize Sack as an
educational-institution requester and required her to pay about
$900 to conduct the search. For another batch of Sack’s
requests, the Department conducted a search and reviewed
responsive documents, but the Department informed Sack that
the documents were exempt from disclosure under FOIA
Exemption (7)(E).
Sack filed a lawsuit challenging the Department’s
handling of those two batches of requests. As to the first,
Sack asked to be categorized as an educational-institution
requester so that she would have to pay only the reduced fees.
As to the other, Sack challenged the Department’s withholding
of the requested polygraph reports. The District Court
granted summary judgment to the Department of Defense.
The Court concluded that Sack was not an
educational-institution requester entitled to reduced fees. And
the Court ruled that the polygraph reports were exempt under
FOIA Exemption 7(E).
II
The first question in this case is whether FOIA requests
made by students to further their coursework or other
4
school-sponsored activities are requests made by an
“educational institution.”
A
At the outset, we must describe the relevant statutory and
regulatory provisions regarding fees for FOIA requests.
Buckle up.
FOIA directs agencies to charge “fees applicable to the
processing of requests.” 5 U.S.C. § 552(a)(4)(A)(i). Fees
may include charges for document search, document
duplication, and document review.
The category of the FOIA requester determines the kinds
of fees that may be charged. FOIA establishes three
categories of requesters.
The first category covers commercial requesters.
Agencies may charge such commercial requesters “reasonable
standard charges for document search, duplication, and
review.” Id. § 552 (a)(4)(A)(ii)(I).
The second category covers noncommercial requests
made by educational institutions, noncommercial scientific
institutions, and representatives of the news media. Agencies
may charge requesters in the second category only for
document duplication. Id. § 552 (a)(4)(A)(ii)(II). 2
2
The relevant FOIA provision provides: “[F]ees shall be
limited to reasonable standard charges for document duplication
when records are not sought for commercial use and the request is
made by an educational or noncommercial scientific institution,
whose purpose is scholarly or scientific research; or a representative
of the news media.” 5 U.S.C. § 552(a)(4)(A)(ii)(II).
5
The third category includes all other requesters.
Agencies may charge those requesters for document search and
duplication. Id. § 552 (a)(4)(A)(ii)(III).
Here, Sack clearly does not fall within the first category.
The question is whether Sack falls within the second
“educational institution” category, or instead falls within the
third “other” category. 3 This question matters because, to
reiterate, educational-institution requesters need to pay only
the costs for document duplication but not the costs for
document search.
FOIA directs agencies to “promulgate regulations”
specifying “the schedule of fees applicable to the processing of
requests . . . and establishing procedures and guidelines for
determining when such fees should be waived or reduced.”
Id. § 552(a)(4)(A)(i). The statute further provides: “Such
schedule shall conform to the guidelines which shall be
promulgated . . . by the Director of the Office of Management
and Budget and which shall provide for a uniform schedule of
fees for all agencies.” Id. 4
3
In addition to the provisions setting out the requester
categories, a separate FOIA provision not at issue in this case directs
agencies to waive or reduce otherwise applicable fees “if disclosure
of the information is in the public interest because it is likely to
contribute significantly to public understanding of the operations or
activities of the government and is not primarily in the commercial
interest of the requester.” 5 U.S.C. § 552(a)(4)(A)(iii). That fee
waiver provision is focused not on the nature of the requester but on
the nature of the request. See Cause of Action v. FTC, 799 F.3d
1108, 1121 (D.C. Cir. 2015).
4
FOIA requires agencies – including the Department – to
conform to OMB’s Guidelines pertaining only to fee schedules. In
other words, the law does not expressly require that agencies adhere
to OMB’s Guidelines regarding requester categorization. 5 U.S.C.
6
FOIA does not define the term “educational institution”
apart from limiting it to those institutions “whose purpose is
scholarly or scientific research.” Id. § 552(a)(4)(A)(ii)(II).
Department of Defense regulations supply a more
comprehensive definition: “The term ‘educational institution’
refers to a pre-school, a public or private elementary or
secondary school, an institution of graduate high education, an
institution of undergraduate higher education, an institution of
professional education, and an institution of vocational
education, which operates a program or programs of scholarly
research.” 32 C.F.R. § 286.28(e)(4).
Consistent with the statute’s directive to follow OMB
Guidelines, the Department of Defense has derived its
definition of “educational institution” from the Office of
Management and Budget’s Fee Schedule and Guidelines,
which define “educational institution” in the same terms. 52
Fed. Reg. 10,012, 10,014 (1987).
But who within the educational institution qualifies for
reduced fees when they make a FOIA request? The
Department of Defense regulations do not say. But the OMB
Guidelines add further detail on that point. The Guidelines
state that “agencies should be prepared to evaluate requests on
an individual basis when requesters can demonstrate that the
request is from an institution that is within the category, that
the institution has a program of scholarly research, and that the
documents sought are in furtherance of the institution’s
program of scholarly research and not for a commercial use.”
§ 552(a)(4)(A)(i). We assume solely for the sake of argument that
OMB may establish guidelines for determining a requester’s fee
category. Even so, those guidelines must be consistent with the
statute, the question we explore in Part II. B.
7
Id. The Guidelines also direct agencies to “ensure that it is
apparent from the nature of the request that it serves a scholarly
research goal of the institution, rather than an individual goal.”
Id.
To help agencies apply what OMB calls the “institutional
versus individual test,” the Guidelines provide a few examples
and make clear that a teacher may be eligible for reduced fees:
A “request from a professor of geology at a State university for
records relating to soil erosion, written on letterhead of the
Department of Geology, could be presumed to be from an
educational institution.” Id. By contrast, a “request from the
same person for drug information from the Food and Drug
Administration in furtherance of a murder mystery he is
writing would not be presumed to be an institutional request,
regardless of whether it was written on institutional
stationary.” Id.
The OMB Guidelines also speak to student requests. The
Guidelines purport to say that the “institutional versus
individual test” applies to “student requests as well” as teacher
requests. Id. But the Guidelines then turn around and say
that student requests to further coursework do not qualify as
educational-institution requests: “A student who makes a
request in furtherance of the completion of a course of
instruction is carrying out an individual research goal and the
request would not qualify . . . .” Id. That lone statement in
the OMB Guidelines, if consistent with the statute and
otherwise binding in this case, would obviously mean that Sack
could not qualify as an educational-institution requester. Not
surprisingly, in denying Sack’s request to be categorized as an
educational-institution requester, the Government relied
heavily on that OMB Guideline.
8
B
We now must decide whether FOIA requests made by
students to further their coursework or other school-sponsored
activities are requests made by an “educational institution.”
To our surprise, no court of appeals has apparently decided that
question in a published opinion.
In common parlance, the term “educational institution” is
synonymous with “school.” See National Security Archive v.
Department of Defense, 880 F.2d 1381, 1383 (D.C. Cir. 1989)
(“The ordinary meaning of the term ‘educational institution’ is
‘school.’”). According to Black’s Law Dictionary, an
educational institution is a “school, seminary, college,
university, or other educational facility, though not necessarily
a chartered institution.” (10th ed. 2014).
But who within a school is part of the school for FOIA
purposes? At first blush, one might think that the term
“educational institution” in FOIA includes neither teachers nor
students, but refers only to the officers of the institution who
speak officially for the institution – for example, the president,
provost, or dean of a university. But that narrow category
would make no sense in the context of FOIA, which
contemplates researchers at educational institutions seeking
information from the Government. Indeed, the statute
characterizes an “educational institution” as an institution
“whose purpose is scholarly . . . research.” 5 U.S.C.
§ 552(a)(4)(A)(ii)(II). The members of an educational
institution likely to submit regular FOIA requests in pursuit of
scholarly research are obviously not the president, provost, or
dean of an educational institution. Rather, they are the
teachers and students at the school.
9
Not surprisingly, therefore, the Government has long
determined that teachers at educational institutions may
qualify as educational-institution requesters entitled to reduced
fees under FOIA. But the Government has distinguished
students from teachers and said that students who seek
documents to further their coursework or other
school-sponsored activities do not ordinarily qualify as
educational-institution requesters and are not eligible for
reduced fees.
We thus must decide whether the statutory term
“educational institution” is properly read, as the Government
reads it, to include teachers but exclude students from the
category of preferred requesters who are eligible for reduced
fees. We conclude that the Government’s reading is
inconsistent with the statute. Indeed, we think the
Government’s reading makes little sense at all.
Dictionaries generally define “school” to encompass
students as well as teachers. See, e.g., The American Heritage
Dictionary of the English Language (5th ed. 2011) (defining
“school” as, among other things, the “student body of an
educational institution”). Like teachers, students do research,
seek background information for paper topics, gather primary
documents, write papers, publish, and contribute to the
development and dissemination of knowledge within the
school and to the outside world. They do so in order to further
their coursework or other school-sponsored activities.
Students often seek access to government information to
pursue their particular research interests. And students often
lack the money (or would be unwilling to spend it) to pay the
extra fees that would be required for their FOIA requests if
they were denied classification as an educational institution.
10
It would be a strange reading of this broad and general
statutory language – which draws no distinction between
teachers and students – to exempt teachers from paying full
FOIA fees but to force students with presumably fewer
financial means to pay full freight.
To justify excluding students from the category of
educational-institution requesters, the Government cites a
snippet of legislative history. But the snippet does not support
the Government’s interpretation. During the legislative
debates, Senator Leahy, the sponsor of the bill amending FOIA
to limit fees for educational-institution requesters, stated: “A
request made by a professor or other member of the
professional staff of an educational or noncommercial
scientific institution should be presumed to have been made by
the institution.” 132 Cong. Rec. S14,298 (daily ed. Sept. 30,
1986) (statement of Sen. Patrick Leahy). Pointing to Senator
Leahy’s statement, the Government seems to seize on what it
perceives to be the statement’s negative implication: that a
request by a student should be presumed not to have been made
by the educational institution. We do not think that the
claimed negative implication follows from Senator Leahy’s
affirmative statement. The Senator said nothing one way or
another about students. And given that students and teachers
are essential elements of educational institutions, it seems just
as likely, if not more so, that Senator Leahy would have wanted
to make reduced fees available for students as well as teachers.
In any event, we must focus foremost on the text of the
statute. See Exxon Mobil Corp. v. Allapattah Services, Inc.,
545 U.S. 546, 567 (2005). And the text of the statute refers to
“educational institutions” without drawing a line between
teachers and students.
11
In defense of its position here, the Government also points
to an OMB Guideline. The Guideline states: “A student who
makes a request in furtherance of the completion of a course of
instruction is carrying out an individual research goal and the
request would not qualify” as a request made by an educational
institution. 52 Fed. Reg. at 10,014.
But the Government’s reliance on the OMB Guideline just
begs the question of whether the Guideline itself is consistent
with the statute. To begin with, the Government does not
claim that the OMB Guideline is entitled to Chevron deference,
presumably because OMB is not the only agency that
administers FOIA. See, e.g., DeNaples v. Office of the
Comptroller of the Currency, 706 F.3d 481, 487-88 (D.C. Cir.
2013) (citing Bowen v. American Hospital Association, 476
U.S. 610, 642 n.30 (1986)); Proffitt v. Federal Deposit
Insurance Corp., 200 F.3d 855, 860 (D.C. Cir. 2000).
In our view, OMB’s rule for student requests is
inconsistent with the statute. FOIA refers broadly to an
“educational institution.” As we have explained, we see no
good basis in the text or context of FOIA to draw a line here
between the teachers and students within the educational
institution. The Guideline’s ipse dixit distinction of students
from teachers is entirely unexplained and unpersuasive. The
Guideline says that a geology teacher seeking information
about soil erosion to support her research is entitled to reduced
fees. But why not the geology student seeking the same
information for the same reason? Crickets. We discern no
meaningful distinction for purposes of this statute between the
geology teacher and the geology student.
We recognize that OMB may (for good reason) want to
help fill and replenish the Government’s coffers. And OMB
therefore may want to extract as much money as possible from
12
those who make FOIA requests. OMB may also want to
discourage further FOIA requests to alleviate the burden on
already grossly overburdened FOIA offices in the Executive
Branch. But this statute, as we read it, does not empower the
Government to pursue fiscal balance or provide relief for the
FOIA bureaucracy on the backs of students. The statutory
text and context lead us to this simple conclusion: If teachers
can qualify for reduced fees, so can students.
To be clear, to qualify for reduced fees as an educational
institution, the requester – whether teacher or student – must
seek the information in connection with his or her role at the
educational institution. In other words, the requester may not
seek the information for personal or commercial use. Just as a
teacher’s ordinary role at an educational institution is to teach,
research, and produce scholarly works, a student’s role at an
educational institution is, at least in part, to pursue coursework
or other school-sponsored activities. A request from either a
teacher or a student seeking information that would help her
write a murder mystery or enhance her personal stock portfolio
presumably has no connection to the requester’s role at an
educational institution and would not justify reduced fees.
With that in mind, a government agency may seek some
assurance that the student is submitting the FOIA request to
further coursework or other school-sponsored activities. For
example, a FOIA request submitted with a copy of a student ID
or other reasonable identification of status as an enrolled
student in the school – together with a copy of a syllabus, a
letter from a professor, or the like – should suffice. To be
clear, we do not intend that list as exhaustive. We caution
agencies against requiring hard-to-obtain verifications that will
have the practical effect of deterring or turning away otherwise
valid student FOIA requests.
13
In sum, Sack was an educational-institution requester
entitled to reduced FOIA fees.
III
We turn next to the Exemption 7(E) issue. Citing that
exemption, the Department of Defense denied Sack’s request
for various Department reports about polygraph examinations.
To withhold documents under Exemption 7, the
Government must make a threshold showing that the “records
or information” were “compiled for law enforcement
purposes.” 5 U.S.C. § 552(b)(7); see also, e.g., Public
Employees for Environmental Responsibility v. U.S. Section,
International Boundary and Water Commission, U.S.-Mexico,
740 F.3d 195, 202 (D.C. Cir. 2014). On top of that, the
Government must demonstrate that production of such
“records or information” would cause at least one of the
specific harms described in the lettered subsections of
Exemption 7. Under Exemption 7(E), the Government must
demonstrate (i) that the withheld records or information
“would disclose techniques and procedures for law
enforcement investigations” and (ii) that their disclosure would
reasonably “risk circumvention of the law.” 5 U.S.C.
§ 552(b)(7)(E); see also Blackwell v. FBI, 646 F.3d 37, 41-42
(D.C. Cir. 2011).
We conclude that the polygraph reports at issue here meet
the threshold requirement of FOIA Exemption 7, as well as
both subsidiary requirements specific to Exemption 7(E).
First, the reports about polygraph use were compiled for
law enforcement purposes. Exemption 7 uses the term “law
enforcement” to describe “the act of enforcing the law, both
civil and criminal.” Public Employees for Environmental
14
Responsibility, 740 F.3d at 203. Concurring in Milner, Justice
Alito persuasively explained that the “ordinary understanding
of law enforcement includes . . . proactive steps designed to
prevent criminal activity and to maintain security.” Milner v.
Department of the Navy, 131 S. Ct. 1259, 1272 (2011) (Alito,
J., concurring); see also Public Employees for Environmental
Responsibility, 740 F.3d at 203. The reports at issue in this
case assist law enforcement agencies in taking “proactive
steps” to deter illegal activity and ensure national security. As
the Government notes, law enforcement agencies use
polygraphs to test the credibility of witnesses and criminal
defendants. Those agencies also use polygraphs to “screen
applicants for security clearances so that they may be deemed
suitable for work in critical law enforcement, defense, and
intelligence collection roles.” Declaration of Alesia Y.
Williams, Defense Intelligence Agency, Chief of FOIA
Services Section, at Joint Appendix 226. In Morley v. CIA,
we stated: “Background investigations conducted to assess an
applicant’s qualification, such as . . . clearance and
investigatory processes, inherently relate to law enforcement.”
508 F.3d 1108, 1128-29 (D.C. Cir. 2007) (internal quotation
marks omitted).
The Government has satisfactorily explained how
polygraph examinations serve law enforcement purposes. It
has also explained how the reports assessing the efficacy of
those examinations and identifying needed fixes likewise serve
law enforcement purposes. Put simply, the reports help
ensure that law enforcement officers optimally use an
important law enforcement tool. The reports were compiled
for law enforcement purposes.
Second, the reports contain information about techniques
and procedures for law enforcement investigations. As the
Government points out, the reports detail whether a particular
15
agency’s polygraph procedures and techniques are effective.
The reports identify strengths and weaknesses of particular
polygraph programs. In describing the effectiveness of
polygraph techniques and procedures, the reports necessarily
would disclose information about the underlying techniques
and procedures themselves, including when the agencies are
likely to employ them.
Third, release of the requested reports could reasonably
risk circumvention of the law. As the Government explained
in its Vaughn index responding to Sack’s request, the reports
identify deficiencies in law enforcement agencies’ polygraph
programs. Their release could enable criminal suspects,
employees with ill intentions, and others to subvert polygraph
examinations.
Even if some portions of the reports may be exempt under
Exemption 7(E), Sack maintains in the alternative that other
portions of the reports were “reasonably segregable” and so
should have been released. See 5 U.S.C. § 552(b). FOIA
requires that any “reasonably segregable portion of a record
shall be provided to any person requesting such record after
deletion of the portions which are exempt.” Id. Courts may
rely on agency affidavits to determine that documents withheld
pursuant to a valid exemption contain no reasonably
segregable information. See Armstrong v. Executive Office of
the President, 97 F.3d 575, 578 (D.C. Cir. 1996).
Here, the District Court concluded that the release of any
part of the reports – whether pertaining to the strengths of
polygraphs, their weaknesses, or anything else – would create
“at least a risk that subversive individuals will be armed with
advanced knowledge of the procedures used by the United
States to screen applicants for sensitive employment positions
and security clearances.” Sack v. Department of Defense, 6 F.
16
Supp. 3d 78, 91 (D.D.C. 2013). For that reason, the District
Court stated that the reports could be fully withheld. Our case
law is not crystal clear on our standard of review of a district
court’s substantive segregability determination. Compare
Powell v. Bureau of Prisons, 927 F.2d 1239, 1243 n.9 (D.C.
Cir. 1991) (rejecting abuse of discretion standard when
reviewing substantive determination of segregability), with
Boyd v. Criminal Division of the Department of Justice, 475
F.3d 381, 391 (D.C. Cir. 2007) (applying abuse of discretion
standard to segregability decision), and Johnson v. Executive
Office for U.S. Attorneys, 310 F.3d 771, 777 (D.C. Cir. 2002)
(perceiving “no error” without establishing standard of
review). But regardless of whether our review here is
deferential or de novo, we would reach the same result because
we agree with the District Court’s segregability determination.
IV
One final bit of housekeeping: Before this suit, Sack
filed a separate FOIA suit against the CIA, the Department of
Defense, and three other agencies. Pursuant to Rule 21 of the
Federal Rules of Civil Procedure, the District Court in that case
dismissed the claims against all of the non-CIA defendants and
stated that Sack would have to refile separate lawsuits against
each agency. Sack’s case against the CIA then went forward,
and she refiled this separate suit against the Department of
Defense. Sack now seeks review of the order in the prior case
dismissing the non-CIA defendants. Because that order
dismissed claims from a case not before us in this appeal, we
lack jurisdiction to review the order.
* * *
Sack was eligible for the reduced fees available to
educational-institution requesters. We therefore reverse the
17
judgment of the District Court on the FOIA fees issue. We
affirm the judgment of the District Court in all other respects,
including the Exemption 7(E) issue.
So ordered.