Ryan Shapiro v. DOJ ( 2022 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 11, 2022 Decided July 15, 2022
No. 20-5318
RYAN NOAH SHAPIRO,
APPELLANT
v.
UNITED STATES DEPARTMENT OF JUSTICE,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:12-cv-00313)
Jeffrey Light argued the cause and filed the briefs for
appellant.
Michael A. Tilghman II, Assistant U.S. Attorney, argued
the cause for appellee. On the brief were R. Craig Lawrence,
Peter C. Pfaffenroth, and Kenneth A. Adebonojo, Assistant
U.S. Attorneys.
Before: TATEL*, WILKINS, and RAO, Circuit Judges.
*
Judge Tatel assumed senior status after this case was argued and
before the date of this opinion.
2
Opinion for the Court filed by Circuit Judge TATEL.
TATEL, Circuit Judge: This appeal arises from a series of
Freedom of Information Act requests seeking records related
to the animal rights movement. During five years of litigation,
the Federal Bureau of Investigation produced tens of thousands
of pages of responsive documents. The district court found that
the FBI had adequately searched for responsive records and
granted summary judgment in its favor. The FOIA requester
now challenges the adequacy of the search for electronic
surveillance records, as well as several of the district court’s
interlocutory rulings. Because we agree with the district court
that the FBI’s search was largely adequate, we affirm in most
respects. We remand, however, for the Bureau to provide a
more detailed explanation of its search for electronic
surveillance records related to individuals mentioned in but not
party to monitored conversations.
I.
Dr. Ryan Noah Shapiro is an animal rights activist and
researcher on topics including government investigations of the
animal rights movement. While a doctoral candidate at the
Massachusetts Institute of Technology, Shapiro submitted
hundreds of FOIA requests seeking government records
concerning individuals, organizations, publications, and events
related to animal rights activism. In the year before the suit
commenced, Shapiro was the FBI’s most prolific FOIA
requester. At their peak, his requests accounted for up to seven
percent of the Bureau’s monthly FOIA intake. This case
involves eighty-three such requests covering sixty-nine topics
initially pursued in four separate lawsuits, which the district
court consolidated.
3
At the litigation’s outset, the FBI estimated that it would
need to review about 350,000 pages potentially responsive to
Shapiro’s requests. Pointing to the substantial volume of these
potentially responsive records and the FBI’s FOIA backlog, the
government sought what is known as an Open America stay,
under which the district court relaxes FOIA deadlines when an
agency “is deluged with a volume of requests” that makes
timely compliance infeasible. See Open America v. Watergate
Special Prosecution Force, 547 F.2d 605, 616 (D.C. Cir. 1976).
Agreeing that the government “ha[d] shown both exceptional
circumstances and due diligence” in responding to Shapiro’s
requests, the district court entered a five-year Open America
stay and ordered the government to file quarterly status reports.
Shapiro v. DOJ (Stay Order), No. 12-cv-313, 2014 WL
12912625, at *2 (D.D.C. Dec. 8, 2014).
Two months after the district court’s stay order, the FBI
made its first rolling disclosure, covering requests Shapiro
identified as his highest priorities. The volume of potentially
responsive documents exceeded the Bureau’s initial estimate.
During the following years, the FBI reviewed over 600,000
pages of potentially responsive documents and disclosed nearly
40,000. The Bureau completed its processing of Shapiro’s
FOIA requests in April 2017, about five months before the
district court’s stay was set to expire, and then moved for
summary judgment.
Citing purported “misrepresentations” and “potential bad
faith,” Shapiro sought leave pursuant to Federal Rule of Civil
Procedure 56(d) to conduct wide-ranging discovery in advance
of summary judgment, including interrogatories, document
production, and oral depositions of FBI personnel. In the
alternative, Shapiro urged the court to deny the government’s
summary judgment motion and direct it to file supplemental
4
declarations regarding the adequacy of its search for electronic
surveillance records.
The district court denied Shapiro’s request for discovery
and granted summary judgment to the government. It found
that Shapiro’s claims of bad faith were “simply not
persuasive,” credited the FBI’s declarations, and concluded
that they demonstrated the agency had adequately searched for
responsive records. Shapiro v. DOJ, No. 12-cv-313, 2020 WL
3615511, at *7, 9–11 (D.D.C. July 2, 2020).
On appeal, Shapiro abandons his argument that the FBI
acted in bad faith but nonetheless contends that the district
court should have allowed him to conduct discovery and that
the FBI failed to demonstrate that its records search was
adequate. He also challenges the now-expired Open America
stay and the district court’s decision to accept a declaration in
support of the government’s stay motion in camera. “We
review de novo the adequacy of the agency’s search,”
Reporters Committee for Freedom of the Press v. FBI, 877 F.3d
399, 402 (D.C. Cir. 2017) (cleaned up), and “review a district
court’s refusal to grant a Rule 56(d) request under an abuse of
discretion standard,” United States ex rel. Folliard v.
Government Acquisitions, Inc., 764 F.3d 19, 25 (D.C. Cir.
2014) (cleaned up).
II.
“The Freedom of Information Act requires agencies to
comply with requests to make their records available to the
public . . . .” Oglesby v. Department of the Army, 79 F.3d 1172,
1176 (D.C. Cir. 1996). “To prevail on summary judgment, an
‘agency must show that it made a good faith effort to conduct
a search for the requested records, using methods which can be
reasonably expected to produce the information requested,’
which it can do by submitting ‘[a] reasonably detailed affidavit,
5
setting forth the search terms and the type of search performed,
and averring that all files likely to contain responsive materials
(if such records exist) were searched.’” Reporters Committee,
877 F.3d at 402 (alteration in original) (quoting Oglesby, 920
F.2d at 68). “In a FOIA case, a district court is not tasked with
uncovering ‘whether there might exist any other documents
possibly responsive to the request,’ but instead, asks only
whether ‘the search for [the requested] documents was
adequate.’” In re Clinton, 973 F.3d 106, 116 (D.C. Cir. 2020)
(alteration in original) (quoting Weisberg v. DOJ, 745 F.2d
1476, 1485 (D.C. Cir. 1984)). “Summary judgment is
inappropriate if a review of the record raises substantial doubt
as to the search’s adequacy, particularly in view of well defined
requests and positive indications of overlooked materials.”
Reporters Committee, 877 F.3d at 402 (cleaned up).
At the outset, we note that Shapiro’s FOIA requests
presented the FBI with a Herculean task, and nothing in the
record suggests that it approached this task with anything less
than utmost seriousness. Following the district court’s Open
America stay order, the FBI promptly processed tens of
thousands of pages that Shapiro identified as his highest
priorities for disclosure. It then continued to process his
requests at an impressive clip until it ultimately completed its
disclosures well within the time the district court allowed.
The present dispute centers not on the FBI’s diligence or
good faith, but rather on whether its search methods for
electronic surveillance records were reasonably calculated to
locate all responsive materials. To answer this question, we
begin by describing the FBI’s recordkeeping systems and its
search of those systems for responsive records. In so doing, we
accord the FBI’s declarations “‘a presumption of good faith,
which cannot be rebutted by purely speculative claims about
the existence and discoverability of other documents.’” Bartko
6
v. DOJ, 898 F.3d 51, 74 (D.C. Cir. 2018) (some quotation
marks omitted) (quoting SafeCard Services, Inc. v. SEC, 926
F.2d 1197, 1200 (D.C. Cir. 1991)).
According to its declarations, the FBI catalogues its
records in two sets of indices, each searchable through its
automated case management systems. First, the FBI maintains
“all information that it has acquired in the course of fulfilling
its mandated law enforcement responsibilities” in its “Central
Records System” (CRS). Second Hardy Decl. ¶ 10, Joint
Appendix (J.A.) 152. The FBI accesses CRS through its
General Indices, which have been digitized since 1995 in the
FBI’s Automated Case Support (ACS) system. Id. ¶¶ 12–13,
J.A. 153.
Second, the FBI maintains “Electronic Surveillance
(‘ELSUR’) Indices, a separate system of records from the
CRS.” Id. ¶ 15, J.A. 155. These indices, the Bureau’s
declarations explain, include “individuals who were the targets
of surveillance, other participants in monitored conversations
and the owners, lessees, or licensors of the premises where the
FBI conducted the electronic surveillance.” Id. ¶ 16, J.A. 155.
Since 1991, the FBI has maintained its ELSUR indices in “an
automated system,” id., and the Bureau’s “prior ELSUR
indices interfaced with ACS upon its implementation in 1995,”
Sixteenth Hardy Decl. ¶ 115, J.A. 516. According to the FBI’s
declarations, “information from both ELSUR and the CRS are
indexed and retrieved via index searches of the FBI’s two case
management systems: ACS and Sentinel.” Id., J.A. 516–17
(internal quotation marks omitted).
At oral argument, government counsel confirmed that the
FBI’s general and electronic surveillance indices function
essentially as library card catalogues, allowing Bureau
personnel to search for relevant files without examining every
7
raw case file directly. Recording of Oral Arg. 10:35–13:41.
Because both sets of indices are searchable through the FBI’s
ACS and Sentinel systems, searching those systems allows
Bureau personnel to search for both general and electronic
surveillance records. ACS searches, the FBI’s declarations
explained, “equate to searches of the ELSUR indices.”
Sixteenth Hardy Decl. ¶ 115, J.A. 517. In this case, “the FBI
conducted ELSUR indices searches” for records responsive to
Shapiro’s requests by “searching ACS.” Id., J.A. 516 (internal
quotation marks omitted).
Despite the FBI’s statement that it searched its ELSUR
indices, Shapiro contends that the search was inadequate
because it failed to separately search a variety of other records
systems mentioned in internal FBI documents—the ELSUR
Recordkeeping System, the ELSUR Data Application, and the
ELSUR Data Management System. But the FBI’s declarations
clearly stated that “the names of all individuals whose voices
have been monitored” are included in the ELSUR indices that
it searched. Second Hardy Decl. ¶ 17, J.A. 156. As government
counsel explained at oral argument, the additional systems
Shapiro identified are “systems that maintain records as
opposed to the indices of records,” and the files in those
systems “would show up [in] the indices.” Recording of Oral
Arg. 13:43–15:32. Essentially, Shapiro faults the FBI for
searching its card catalogues rather than leafing through every
book in the library. But our FOIA precedent, under which an
agency’s search need only be “reasonably expected to produce
the information requested,” does not require what the
government represents would be a redundant search of
individual electronic surveillance files. Reporters Committee,
877 F.3d at 402 (internal quotation marks omitted).
Nor did the FBI fail to set forth “the type of search
performed” and “the search terms” used. Id. (internal quotation
8
marks omitted). In its declarations, the FBI explained which
recordkeeping systems it searched and how. Moreover, it set
forth the search terms that it used in its search for ELSUR
records: “the subjects [Shapiro] identified in his requests.”
Second Hardy Decl. ¶ 21, J.A. 157. At oral argument, Shapiro’s
counsel conceded that “[t]he district court knew what keywords
were used to search the ACS,” but complained that the FBI
never specified what keywords it used for “a separate search
[of] the ELSUR indices.” Recording of Oral Arg. 34:02–34:24.
The answer, as the FBI’s declarations explained, is that the
Bureau searched its ELSUR indices through ACS. There was
no “separate search” for which the FBI failed to set forth the
search terms it used.
Despite the FBI’s good-faith effort to process the
voluminous requests, we agree with Shapiro that its
declarations inadequately address one class of records: those
related to individuals mentioned in monitored communications
but not directly targeted for surveillance. According to its
declarations, the FBI’s electronic surveillance indices include
“the names of all individuals whose voices have been
monitored,” but for many years field offices have not been
“required to forward to [FBI headquarters] the names of all
individuals mentioned during monitored conversations.”
Second Hardy Decl. ¶¶ 17–18, J.A. 156. Although “some” field
offices continue to include mentioned names in their local
indices, “the names of such individuals cannot be retrieved
through the [headquarters] ELSUR Index.” Id. ¶ 18, J.A. 156.
The FBI’s declarations do not explain how the ACS search
conducted in this case would have revealed electronic
surveillance “mentions” if Bureau field offices omit those
references from ELSUR indices. A limited remand is
appropriate for the FBI to fill this gap in its declarations.
9
We have repeatedly made clear that “discovery in a FOIA
case is rare” and courts should generally order it only “where
there is evidence—either at the affidavit stage or (in rarer
cases) before—that the agency acted in bad faith in conducting
the search.” In re Clinton, 973 F.3d at 113 (internal quotation
marks omitted); see, e.g., Freedom Watch, Inc. v. NSA, 783
F.3d 1340, 1345–46 (D.C. Cir. 2015) (holding that “the district
court had discretion to forgo discovery” absent “evidence to
support [an] allegation” of bad faith (cleaned up)); Goland v.
CIA, 607 F.2d 339, 355 (D.C. Cir. 1978) (holding that “the
district court’s grant of summary judgment without discovery
was within its discretion” because “plaintiffs ha[d] made no
showing of [agency] bad faith”). And even where we have
found an agency’s affidavits to be inadequate to support
summary judgment, we have held that the appropriate remedy
is usually to allow the agency to “submit further affidavits”
rather than to order discovery. Nation Magazine v. United
States Customs Service, 71 F.3d 885, 892 (D.C. Cir. 1995).
Finding no evidence of bad faith—a finding Shapiro does not
challenge on appeal—the district court acted within its “broad
discretion to manage the scope of discovery” when it denied
Shapiro’s request for extensive document production and oral
depositions of FBI personnel. SafeCard, 926 F.2d at 1200.
Consistent with these principles, on remand the district court
need not allow discovery if further declarations will suffice.
III.
We turn next to Shapiro’s arguments that the district court
erred in two of its interlocutory orders. Neither, however, is
properly before us.
A.
Shapiro’s challenge to the district court’s stay order is
moot. “Simply stated, a case is moot when the issues presented
10
are no longer live or the parties lack a legally cognizable
interest in the outcome.” Larsen v. Navy, 525 F.3d 1, 3 (D.C.
Cir. 2008) (quoting County of Los Angeles v. Davis, 440 U.S.
625, 631 (1979)). The Open America stay expired years ago
after the FBI finished processing documents responsive to
Shapiro’s FOIA requests. Now that the FBI has turned over all
responsive documents, we lack authority to turn back the clock
and compel the FBI to hand them over faster. Accordingly, we
are unable to offer Shapiro “any effectual relief” related to the
stay. Church of Scientology of California v. United States, 506
U.S. 9, 12 (1992).
Conceding that the Open America stay “is no longer live,”
Shapiro contends that we may nonetheless review it because it
presents an issue “‘capable of repetition, yet evading review.’”
Appellant’s Reply Br. 10 (quoting PETA v. Gittens, 396 F.3d
416, 422 (D.C. Cir. 2005)). Under this doctrine, federal courts
may decide a controversy that would otherwise be moot if “(1)
the challenged action was in its duration too short to be fully
litigated prior to its cessation or expiration, and (2) there was a
reasonable expectation that the same complaining party would
be subjected to the same action again.” Weinstein v. Bradford,
423 U.S. 147, 149 (1975).
The dispute here is incapable of repetition because, rather
than presenting “legal questions” likely to recur in future
litigation, it turns on “highly fact-specific” details of Shapiro’s
requests. Gittens, 396 F.3d at 422–24. Observing that “the FBI
could not reasonably have planned for a single citizen to
consume such a vast quantity of the agency’s FOIA resources,”
the district court found that a stay was warranted because
Shapiro’s requests were “unusually voluminous, complicated,
and interconnected.” Stay Order, 2014 WL 12912625, at *1–2.
And Shapiro, for his part, disputes the district court’s finding
that the FBI exercised due diligence in responding to these
11
extraordinary requests. That is, he contends that the district
court “erred factually.” Spivey v. Barry, 665 F.2d 1222, 1234
(D.C. Cir. 1981). But “[a]s we have made clear, a legal
controversy so sharply focused on a unique factual context will
rarely present a reasonable expectation that the same
complaining party would be subjected to the same actions
again.” J.T. v. District of Columbia, 983 F.3d 516, 524 (D.C.
Cir. 2020) (cleaned up).
We also decline Shapiro’s request to vacate the Open
America stay under United States v. Munsingwear, 340 U.S. 36(1950), which allows vacatur “‘[w]hen a civil case becomes
moot pending appellate adjudication.’” Humane Society of the
United States v. Kempthorne, 527 F.3d 181, 184 (D.C. Cir.
2008) (quoting Arizonans for Official English v. Arizona, 520
U.S. 43, 71 (1997)). The stay became moot when it expired in
2017, not while this appeal was pending. Shapiro cites no
authority suggesting that Munsingwear allows litigants to seek
vacatur of a district court’s long-moot interlocutory orders after
the end of litigation, and we see no reason to extend the
doctrine to this novel context.
B.
Finally, Shapiro seeks to unseal a declaration filed in
camera in support of the government’s stay motion. He
contends that the district court erred by failing to apply the
standard set forth in United States v. Hubbard, 650 F.2d 293(D.C. Cir. 1980), governing the common-law right of public
access to judicial records. But in his motion, Shapiro never
asserted that the declaration was a judicial record, invoked the
common-law right of public access, or so much as mentioned
Hubbard. Instead, he relied exclusively on our court’s decision
in Lykins v. DOJ, 725 F.2d 1455 (D.C. Cir. 1984), governing
in camera submissions in FOIA cases, and the district court
12
denied his motion under that standard. If Shapiro wishes to
press his argument that the right of public access requires
unsealing, he must do so in the first instance before the district
court.
IV.
For the foregoing reasons, we remand for the FBI to
further explain its search for electronic surveillance
“mentions,” we dismiss Shapiro’s appeal insofar as it
challenges the district court’s stay order, and we affirm the
district court’s judgment in all other respects.
So ordered.