Citizens for Responsibility & Ethics in Washington v. United States Department of Justice , 746 F.3d 1082 ( 2014 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 16, 2014 Decided April 1, 2014
No. 12-5223
CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON,
APPELLANT
v.
UNITED STATES DEPARTMENT OF JUSTICE,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:11-cv-00592)
David L. Sobel argued the cause for the appellant.
Melanie T. Sloan and Anne L. Weismann were on brief.
Steve Frank, Attorney, U.S. Department of Justice, argued
the cause for the appellee. Stuart F. Delery, Assistant
Attorney General, Ronald C. Machen Jr., U.S. Attorney, and
Leonard Schaitman, Attorney, were on brief.
Before: HENDERSON, Circuit Judge, and EDWARDS and
SENTELLE, Senior Circuit Judges.
KAREN LECRAFT HENDERSON, Circuit Judge: In 2004,
the Federal Bureau of Investigation (FBI) opened a
wide-ranging public corruption investigation into the activities
2
of former lobbyist Jack Abramoff. The investigation yielded
21 guilty pleas or convictions by jury. Two of those
convicted, Tony Rudy and Michael Scanlon, once served as
senior aides to Tom DeLay—the former Majority Leader of the
United States House of Representatives. During the
multi-year investigation, the FBI never acknowledged whether
DeLay himself was a subject of inquiry. In August 2010,
however, DeLay announced that the United States Department
of Justice (DOJ) had informed him it had decided not to bring
criminal charges against him related to the Abramoff scandal.
Shortly after DeLay’s announcement, Citizens for
Responsibility and Ethics in Washington (CREW) filed a
Freedom of Information Act (FOIA) request seeking various
types of documents related to the FBI’s investigation of
DeLay. After the FBI declined to produce the documents,
CREW filed suit against the DOJ (the agency encompassing
the FBI). The district court granted summary judgment to the
DOJ, concluding that the requested documents were
categorically exempt from disclosure under Exemptions 7(A)
and 7(C) and that, in the alternative, portions of the requested
documents were also exempt under Exemptions 3, 7(D) and
7(E). Citizens for Responsibility & Ethics in Wash. v. Dep’t of
Justice, 870 F. Supp. 2d 70 (D.D.C. 2012). We now reverse
and remand. The DOJ has not met its burden of justifying
categorical withholding under Exemption 7(A) or 7(C) and has
not adequately explained the basis for withholding portions of
the requested documents under Exemptions 3, 7(D) and 7(E).
I
A. Legal Framework
FOIA provides that every government agency, “upon any
request for records which (i) reasonably describes such records
3
and (ii) is made in accordance with published rules . . . , shall
make the records promptly available to any person.” 5 U.S.C.
§ 552(a)(3)(A). Certain information is exempt from
disclosure. Of primary relevance here, “records or
information compiled for law enforcement purposes” are
exempt,
but only to the extent that the production of such law
enforcement records or information (A) could
reasonably be expected to interfere with enforcement
proceedings, . . . [or] (C) could reasonably be
expected to constitute an unwarranted invasion of
personal privacy . . . .
Id. § 552(b)(7).
FOIA “was enacted to facilitate public access to
Government documents” and “was designed to ‘pierce the veil
of administrative secrecy and to open agency action to the light
of public scrutiny.’” Dep’t of State v. Ray, 502 U.S. 164, 173
(1991) (quoting Dep’t of Air Force v. Rose, 425 U.S. 352, 361
(1976)). Because of FOIA’s “goal of broad disclosure,” the
Supreme Court has “insisted that the exemptions be ‘given a
narrow compass.’” Milner v. Dep’t of Navy, 131 S. Ct. 1259,
1265 (2011) (quoting Dep’t of Justice v. Tax Analysts, 492
U.S. 136, 151 (1989)); accord FBI v. Abramson, 456 U.S. 615,
630 (1982) (“FOIA exemptions are to be narrowly
construed.”). FOIA’s “limited exemptions do not obscure the
basic policy that disclosure, not secrecy, is the dominant
objective of the Act.” Dep’t of Interior v. Klamath Water
Users Protective Ass’n, 532 U.S. 1, 8 (2001) (quoting Rose,
425 U.S. at 361).
The agency bears the burden of establishing that a claimed
exemption applies. Dep’t of Justice v. Reporters Comm. for
4
Freedom of the Press, 489 U.S. 749, 755 (1989); Elec. Frontier
Found. v. Dep’t of Justice, 739 F.3d 1, 7 (D.C. Cir. 2014); see 5
U.S.C. § 552(a)(4)(B). The agency may carry that burden by
submitting affidavits that “describe the justifications for
nondisclosure with reasonably specific detail, demonstrate that
the information withheld logically falls within the claimed
exemption, and are not controverted by either contrary
evidence in the record nor by evidence of agency bad faith.”
Larson v. Dep’t of State, 565 F.3d 857, 862 (D.C. Cir. 2009)
(quoting Miller v. Casey, 730 F.2d 773, 776 (D.C. Cir. 1984)).
Agency affidavits sometimes take the form of a “Vaughn
index,” see Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973),
but there is “no fixed rule” establishing what such an affidavit
must look like, ACLU v. CIA, 710 F.3d 422, 432 (D.C. Cir.
2013). “[I]t is the function, not the form, of the index that is
important.” Keys v. Dep’t of Justice, 830 F.2d 337, 349 (D.C.
Cir. 1987); see generally Judicial Watch, Inc. v. FDA, 449 F.3d
141, 145–46 (D.C. Cir. 2006) (explaining functions of Vaughn
index).
At times, the FOIA litigation process threatens to reveal
“the very information the agency hopes to protect” and
therefore it may be necessary for the agency affidavit to
contain only “brief or categorical descriptions” of the withheld
information. ACLU, 710 F.3d at 432; see also Judicial Watch,
449 F.3d at 146. In such circumstances, “the government
need not justify its withholdings document-by-document; it
may instead do so category-of-document by
category-of-document, so long as its definitions of relevant
categories are sufficiently distinct to allow a court to determine
whether the specific claimed exemptions are properly applied.”
Gallant v. NLRB, 26 F.3d 168, 173 (D.C. Cir. 1994) (quotation
marks and ellipsis omitted); accord Crooker v. Bureau of
Alcohol, Tobacco & Firearms, 789 F.2d 64, 67 (D.C. Cir.
1986). Categorical treatment, however, may be used “[o]nly
5
when the range of circumstances included in the category
‘characteristically support[s] an inference’ that the statutory
requirements for exemption are satisfied.” Nation Magazine
v. U.S. Customs Serv., 71 F.3d 885, 893 (D.C. Cir. 1995)
(quoting Dep’t of Justice v. Landano, 508 U.S. 165, 177
(1993)); accord Reporters Comm., 489 U.S. at 776
(“[C]ategorical decisions may be appropriate and individual
circumstances disregarded when a case fits into a genus in
which the balance characteristically tips in one direction.”);
Roth v. Dep’t of Justice, 642 F.3d 1161, 1183–84 (D.C. Cir.
2011).
B. Factual and Procedural Background
On October 19, 2010, after DeLay had announced that he
was not going to be criminally charged as a result of the
Abramoff investigation, CREW wrote to the FBI requesting
any witness statements, investigation reports,
prosecution memoranda, and [FBI] 302 reports
related to the FBI’s and DOJ’s investigation of
[DeLay]. This includes, but is not limited to, the
FBI’s and DOJ’s investigation of relationships
between Mr. DeLay and Christine DeLay, Dani
DeLay, Jack Abramoff, Edwin Buckham, Tony Rudy,
Michael Scanlon, Susan Hirshmann, the Alexander
Strategy Group, the National Center for Public Policy
Research, eLottery, Inc., the U.S. Family Network,
Americans for a Republican Majority PAC
(“ARMPAC”), Texans for a Republican Majority
PAC (“TRMPAC”), and/or the Commonwealth of the
Northern Marianas Islands.
Joint Appendix (JA) 51. Three days later, the FBI responded,
stating that, because the requested records involved third
6
parties, they were generally exempt from disclosure and could
not be released absent express authorization from each third
party, proof of the third party’s death or a “clear demonstration
that the public interest in disclosure outweighs the personal
privacy interest and that significant public benefit would result
from the disclosure of the requested records.” JA 107. The
FBI’s response also included the disclaimer—in FOIA terms, a
“Glomar response,” see Military Audit Project v. Casey, 656
F.2d 724 (D.C. Cir. 1981); Phillippi v. CIA, 655 F.2d 1325
(D.C. Cir. 1981)—that the response “should not be considered
an indication of whether or not records responsive to your
request exist in FBI files.” JA 107. After exhausting its
administrative remedies, CREW filed suit against the DOJ in
district court.
The parties cross-moved for summary judgment. In
support of its motion, the DOJ submitted a declaration from
David Hardy, Section Chief of the Record/Information
Dissemination Section, Record Management Division, of the
FBI (“Hardy Declaration” or “Declaration,” reprinted at JA
18–49). The Hardy Declaration recited the FBI’s policy of
issuing a Glomar response to requests for records involving
third parties. However, “[i]n light of the acknowledgment of
a pending lobbying investigation related to Jack Abramoff,” it
“pierced the Glomar veil and admitted the existence of records
potentially responsive to plaintiff’s request.” Hardy Decl. 31–
32. It explained the methodology by which the FBI searched
for responsive documents and identified two categories of
responsive documents located.
The first category includes FD-302s, forms used by FBI
agents “to record information which they obtain through
witness interviews, . . . grand jury subpoenas, proffer
agreements and immunity statements, and from other federal
agencies.” Id. at 19. More specifically,
7
FD-302s contain, in the aggregate, detailed
descriptions of names, addresses, telephone numbers
of witnesses and other third parties, information,
leads, and other valuable investigative information
supplied by various sources and third-parties
interviewed jointly by the FBI and Other Government
Agencies (“OGAs”) during the course of their
investigation. In addition, responsive FD-302s
contain information regarding forensic analysis,
information regarding grand jury proffer and
immunity statements, and information exchanged
between the FBI and OGAs.
Id. at 20. The FBI’s search for responsive documents turned
up an unspecified number of FD-302s dating from June 2004 to
October 2009. The second category of responsive documents,
investigative materials, “includes derivative communications
and reports analyzing the evidence obtained.” Id. at 21. The
Hardy Declaration explained that “[a] derivative
communication . . . describes (verbatim or in summary) the
contents of the original evidentiary record, how it was
obtained, and how it relates to the investigation.” Id. at 21–
22. The Declaration did not specify how many responsive
documents in this category were identified.1
The Hardy Declaration asserted that all responsive
documents were categorically exempt under Exemption 7(A),
see id. at 16–19, 22, and Exemptions 6 and 7(C), see id. at 24–
30. It also invoked Exemptions 2, 3, 7(D) and 7(E) to
1
CREW’s request also sought prosecution memoranda but the
Hardy Declaration stated that no such memoranda were found in the
FBI’s case file. The FBI’s search also turned up responsive public
source documents like newspaper clippings but CREW has not
sought disclosure of this material.
8
withhold portions of the responsive material. Id. at 22–24,
30–31. The Declaration asserted that “due in particular to the
inextricably intertwined and interrelated nature of the
documents at issue here, no information is segregable and
releasable at this time.” Id. at 17; accord id. at 22.
The district court agreed with the DOJ in every respect.
With regard to Exemptions 6 and 7(C), the district court found
that, despite his public acknowledgment of the investigation,
DeLay retained a substantial privacy interest in preventing
disclosure of the contents of the investigative files. Citizens
for Responsibility & Ethics in Wash., 870 F. Supp. 2d at 79–80.
The district court found little countervailing public interest.
Although it “acknowledge[d] that there may be some public
interest in the investigative materials and reports,” it found that
“this minimal public interest does not outweigh the substantial
privacy interests of Mr. DeLay and other third parties in the
contents of the documents.” Id. at 81. It therefore held that
“the ‘balance . . . tips in’ favor of exemption” and the DOJ
“properly categorically withheld the records pursuant to
Exemptions 6 and 7(C).” Id. at 81–82 (quoting Nation
Magazine, 71 F.3d at 893) (omission in district court order).
As for Exemption 7(A), the district court found that “[n]ot
only is the investigation still ongoing . . . , but ‘[t]here are
several outstanding convictions and sentencing proceedings
. . . which have not yet been completed.’” Id. at 82 (quoting
Hardy Decl. 17). It found that disclosure of the requested
records would interfere with those proceedings by identifying
sources, potential witnesses and third parties under
investigation, uncovering the government’s trial strategy and
notifying individuals who remained under investigation. Id.
at 82. Accordingly, it held that categorical withholding was
also appropriate under Exemption 7(A). Id. at 82–83.
9
Finally, the district court accepted the DOJ’s alternative
grounds for withholding portions of the requested records
under Exemptions 2, 3, 7(D) and 7(E). See id. at 83
(Exemption 2, internal FBI telephone and fax numbers), 83–84
(Exemption 3, certain grand jury materials), 84–85 (Exemption
7(D), identities of confidential informants and information that
could reveal their identities), 85 (Exemption 7(E), information
that would reveal law enforcement procedures and techniques).
CREW timely appealed.
II
We review de novo the district court’s grant of summary
judgment. Pub. Emps. for Envtl. Responsibility v. U.S.
Section, Int’l Boundary & Water Comm’n, U.S.-Mex., 740 F.3d
195, 200 (D.C. Cir. 2014). We first address the DOJ’s
categorical withholding claims under Exemptions 7(C) and
7(A), then briefly address the DOJ’s claims under Exemptions
3, 7(D) and 7(E).
A. Exemption 7(C)
As noted, FOIA exempts from disclosure “records or
information compiled for law enforcement purposes, but only
to the extent that the production of such law enforcement
records or information . . . could reasonably be expected to
constitute an unwarranted invasion of personal privacy.” 5
U.S.C. § 552(b)(7)(C). CREW does not dispute that the
requested records were “compiled for law enforcement
purposes.” Our task, then, is “to balance the [] privacy
interest against the public interest in disclosure.” Nat’l
10
Archives & Records Admin. v. Favish, 541 U.S. 157, 171
(2004); accord Reporters Comm., 489 U.S. at 776.2
Privacy Interest: DeLay has two potential privacy
interests at stake. The first is his interest in avoiding the
stigma of having his name associated with a criminal
investigation. “[I]ndividuals have an obvious privacy interest
cognizable under Exemption 7(C) in keeping secret the fact
that they were subjects of a law enforcement investigation.”
Nation Magazine, 71 F.3d at 894; see also People for the
Ethical Treatment of Animals (PETA) v. Nat’l Insts. of Health,
No. 12-5183, 2014 WL 982875, at *4 (D.C. Cir. Mar. 14,
2014); Schrecker v. Dep’t of Justice, 349 F.3d 657, 666 (D.C.
Cir. 2003); Fitzgibbon v. CIA, 911 F.2d 755, 767 (D.C. Cir.
1990). If a FOIA request is made for FBI investigative
records regarding a particular individual, the FBI’s mere
acknowledgment that it possesses responsive records
associates the individual named in the request with suspected
criminal activity and therefore a Glomar response may be
appropriate. See Nation Magazine, 71 F.3d at 893 (collecting
cases); see also PETA, 2014 WL 982875, at *3. The FBI
evidently believed this was such a case when it initially issued
a Glomar response to CREW’s request. A Glomar response,
however, is “permitted only when confirming or denying the
existence of records would itself ‘cause harm cognizable under
an FOIA exception.’” Roth, 642 F.3d at 1178 (quoting Wolf v.
CIA, 473 F.3d 370, 374 (D.C. Cir. 2007)) (additional quotation
marks omitted). In August 2010, DeLay made public
2
Similarly, Exemption 6 applies to “personnel and medical
files and similar files the disclosure of which would constitute a
clearly unwarranted invasion of personal privacy.” 5 U.S.C.
§ 552(b)(6). We focus here on Exemption 7(C) because it provides
broader privacy protection than Exemption 6 and thus “establishes a
lower bar for withholding material.” ACLU, 655 F.3d at 6; see
Favish, 541 U.S. at 165–66; Reporters Comm., 489 U.S. at 756.
11
statements confirming the fact that he had been, but was no
longer, under investigation. He explained the extent of his
cooperation with the investigation and announced the DOJ had
decided not to charge him. DeLay’s obvious privacy interest
in keeping secret the fact that he was the subject of an FBI
investigation was diminished by his well-publicized
announcement of that very fact. See Kimberlin v. Dep’t of
Justice, 139 F.3d 944, 949 (D.C. Cir. 1998) (prosecutor’s
public acknowledgment that he was subject of disciplinary
proceedings “undoubtedly does diminish his interest in
privacy: the public already knows who he is, what he was
accused of, and that he received a relatively mild sanction”);
Nation Magazine, 71 F.3d at 896 (politician waived right to
have his name redacted from responsive documents regarding
events he publicly discussed); cf. ACLU v. CIA, 710 F.3d 422,
428–32 (D.C. Cir. 2013) (Glomar response inappropriate
where CIA sought to prevent disclosure of whether it had
intelligence interest in drone strikes but its official public
statements had made clear its interest). Because DeLay’s
public statements confirmed he had been under investigation,
the FBI’s acknowledgment that it had responsive records
would not itself cause harm by confirming that fact, rendering
a Glomar response inappropriate. The FBI apparently came
to that conclusion itself when it “pierced the Glomar veil and
admitted the existence of records potentially responsive to
plaintiff’s request.” Hardy Decl. 31–32.
Although DeLay’s action lessened his interest in keeping
secret the fact that he was under investigation, he retained a
second, distinct privacy interest in the contents of the
investigative files. We made that clear in Kimberlin, noting
that, although a prosecutor who had publicly acknowledged he
was the subject of a disciplinary investigation retained little
privacy interest in keeping the fact of the investigation secret,
he “did not, merely by acknowledging the investigation and
12
making a vague reference to its conclusion, waive all his
interest in keeping the contents of the [disciplinary] file
confidential.” 139 F.3d at 949; cf. Ray, 502 U.S. at 175–76
(although disclosure of interview summaries containing highly
personal information constitutes only de minimis invasion of
privacy if identities of interviewees are unknown, “the
invasion of privacy becomes significant when the personal
information is linked to particular interviewees”). CREW
does not dispute that DeLay retains some privacy interest in the
particulars of the investigation but instead contends that such
interest is not sufficient to support categorical withholding.
See Reply Br. of Appellant 11–12, No. 12-5223 (D.C. Cir. June
17, 2013). And although DeLay, as a public official at the
time, “may have a somewhat diminished privacy interest,”
public officials “‘do not surrender all rights to personal privacy
when they accept a public appointment.’” Quinon v. FBI, 86
F.3d 1222, 1230 (D.C. Cir. 1996) (quoting Bast v. Dep’t of
Justice, 665 F.2d 1251, 1255 (D.C. Cir. 1981)); see also
Kimberlin, 139 F.3d at 949; Fund for Const. Gov’t v. Nat’l
Archives & Records Serv., 656 F.2d 856, 865 (D.C. Cir. 1981).
DeLay’s privacy interest in the contents of the investigative
files is not insubstantial.3
Public Interest: On the other side of the scale sits a
weighty public interest in shining a light on the FBI’s
investigation of major political corruption and the DOJ’s
3
DeLay is not the only one with a privacy interest in the
contents of the investigative files. Other third parties may be
mentioned therein, including many of the other individuals listed in
CREW’s FOIA request. They have a substantial privacy interest in
preventing disclosure of their names in law enforcement files. See
Nation Magazine, 71 F.3d at 894; Fitzgibbon, 911 F.2d at 767. The
same is true of witnesses, informants and investigating agents who
may also be mentioned. See Favish, 541 U.S. at 166; Roth, 642
F.3d at 1174; Schrecker, 349 F.3d at 666.
13
ultimate decision not to prosecute a prominent member of the
Congress for any involvement he may have had. “[T]he only
relevant public interest in the FOIA balancing analysis [is] the
extent to which disclosure of the information sought would
‘she[d] light on an agency’s performance of its statutory
duties’ or otherwise let citizens know ‘what their government
is up to.’” Dep’t of Def. v. FLRA, 510 U.S. 487, 497 (1994)
(quoting Reporters Comm., 489 U.S. at 773); accord Bibles v.
Or. Natural Desert Ass’n, 519 U.S. 355, 355–56 (1997) (per
curiam). That is, the relevant public interest is not to find out
what DeLay himself was “up to” but rather how the FBI and
the DOJ carried out their respective statutory duties to
investigate and prosecute criminal conduct. See Quinon, 86
F.3d at 1231.
The DOJ contends that CREW has posited no public
interest and therefore categorical withholding is appropriate
because “[s]omething . . . outweighs nothing every time.” Br.
of Appellee 10, No. 12-5223 (D.C. Cir. May 15, 2013)
(quoting Nat’l Ass’n of Retired Fed. Emps. v. Horner, 879 F.2d
873, 879 (D.C. Cir. 1989)). But there is considerably more
than nothing on the public interest side of the scale.
“[M]atters of substantive law enforcement policy . . . are
properly the subject of public concern,” Reporters Comm., 489
U.S. at 766 n.18, and disclosure of the requested records would
likely reveal a great deal about law enforcement policy, see
Favish, 541 U.S. at 172 (in addition to significant public
interest, requester must “show the information is likely to
advance that interest”). Disclosure of the FD-302s and
investigative materials could shed light on how the FBI and the
DOJ handle the investigation and prosecution of crimes that
undermine the very foundation of our government. As the
DOJ itself explained, the requested records relate to “a
wide-ranging public corruption investigation as part of [the
FBI’s] ongoing efforts to root out systemic corruption within
14
the highest levels of government.” Hardy Decl. 12.
Disclosure of the records would likely reveal much about the
diligence of the FBI’s investigation and the DOJ’s exercise of
its prosecutorial discretion: whether the government had the
evidence but nevertheless pulled its punches. Indeed, we have
repeatedly recognized a public interest in the manner in which
the DOJ carries out substantive law enforcement policy
(whether or not that interest outweighs any privacy interest at
stake in a given case). See, e.g., ACLU, 655 F.3d at 12–13
(public interest in DOJ’s use of and justification for
warrantless cell phone tracking); Kimberlin, 139 F.3d at 948–
49 (public interest in DOJ disciplinary proceedings);
Dunkelberger v. Dep’t of Justice, 906 F.2d 779, 781 (D.C. Cir.
1990) (public interest both in whether FBI agent participated in
scheme to entrap public official and in manner in which agent
was disciplined); Bast, 665 F.2d at 1255 (public interest in
DOJ decision not to prosecute federal judge for alleged
misconduct); see also Ray, 502 U.S. at 178 (public interest in
“knowing whether the State Department has adequately
monitored Haiti’s compliance with its promise not to prosecute
returnees”); PETA, 2014 WL 982875, at *6, *8 (public interest
in how National Institutes of Health decides whether to
investigate complaints of animal abuse and misappropriation
of research funds and how it conducts investigations); Multi Ag
Media LLC v. Dep’t of Agric., 515 F.3d 1224, 1232 (D.C. Cir.
2008) (public interest in determining whether Department of
Agriculture “is catching cheaters and lawfully administering
its subsidy and benefit programs”); Stern v. FBI, 737 F.2d 84,
92 (D.C. Cir. 1984) (recognizing, in dicta, public interest “in
knowing that a government investigation itself is
comprehensive”).
That the investigation implicated a public official as
prominent as the former Majority Leader of the House of
Representatives further raises the stakes. See Kimberlin, 139
15
F.3d at 949 (court may consider “the rank of the public official
involved and the seriousness of the misconduct alleged” in
conducting Exemption 7(C) balancing); see also Jefferson v.
Dep’t of Justice, 284 F.3d 172, 180 (D.C. Cir. 2002); Beck v.
Dep’t of Justice, 997 F.2d 1489, 1493 (D.C. Cir. 1993); Stern,
737 F.2d at 93–94. Although the DOJ’s actions in this case
may reflect only one data point regarding the performance of
its statutory duties, cf. Boyd v. Dep’t of Justice, 475 F.3d 381,
388 (D.C. Cir. 2007), it is a significant one: It may show
whether prominent and influential public officials are
subjected to the same investigative scrutiny and prosecutorial
zeal as local aldermen and little-known lobbyists. We do not
accept the DOJ’s contention that there is no public interest in
examining the FBI’s investigation of, and the DOJ’s decision
not to charge, the former House Majority Leader for his alleged
involvement in one of the most significant political corruption
scandals in recent memory.
The DOJ’s arguments to the contrary are unpersuasive.
First, it contends that “the identity of individuals who appear in
law enforcement files would virtually never be ‘very probative
of an agency’s behavior or performance’ and would serve a
significant public interest only if ‘there is compelling evidence
that the agency . . . is engaged in illegal activity.’” Br. of
Appellee 35 (quoting SafeCard Servs., Inc., v. SEC, 926 F.2d
1197, 1206 (D.C. Cir. 1991)). As we have explained,
however, SafeCard “is one in a long line of FOIA cases
holding that disclosure of the identities of private citizens
mentioned in law enforcement files constitutes an unwarranted
invasion of privacy.” Nation Magazine, 71 F.3d at 896
(emphasis in original) (collecting such cases). Here, however,
the DOJ does not seek to withhold only the identities of private
citizens; it seeks to withhold every responsive document in
toto. Although SafeCard may authorize the redaction of the
names and identifying information of private citizens
16
mentioned in law enforcement files, it does not permit an
agency “to exempt from disclosure all of the material in an
investigatory record solely on the grounds that the record
includes some information which identifies a private citizen or
provides that person’s name and address.” Id.; see also
Schrecker, 349 F.3d at 666 (explaining that SafeCard rule
applies to names and identifying information); Mays v. DEA,
234 F.3d 1324, 1328 (D.C. Cir. 2000) (investigative details is
“a category presumably distinct from, and potentially far
broader than” personal information).
Next, the DOJ leans on the United States Supreme Court’s
decision in Favish, which held that, if an Exemption 7(C)
privacy interest exists, “the usual rule that the citizen need not
offer a reason for requesting the information [is] inapplicable”
and therefore “the exemption requires the person requesting
the information to establish a sufficient reason for the
disclosure.” 541 U.S. at 172. Accordingly, in cases where
“the public interest being asserted is to show that responsible
officials acted negligently or otherwise improperly in the
performance of their duties, the requester must establish more
than a bare suspicion in order to obtain disclosure.” Id. at 174.
Favish was such a case, see id. at 160–61, 173, but this is not.
CREW alleges no impropriety on the part of the FBI or the
DOJ; 4 it has nonetheless established a sufficient reason for
4
At argument, counsel for the DOJ suggested that CREW
seeks disclosure not to further the purposes of FOIA but rather to
smear DeLay on its website. Recording of Argument 21:01 (D.C.
Cir. Jan. 16, 2014). That accusation does not affect our inquiry:
“[W]hether disclosure of a private document under Exemption 7(C)
is warranted must turn on the nature of the requested document and
its relationship to ‘the basic purpose of [FOIA] to open agency action
to the light of public scrutiny,’ rather than on the particular purpose
for which the document is being requested.” Reporters Comm., 489
U.S. at 772 (quoting Rose, 425 U.S. at 372) (additional quotation
17
disclosure independent of any impropriety: “‘[M]atters of
substantive law enforcement policy are properly the subject of
public concern,’ whether or not the policy in question is
lawful.” ACLU, 655 F.3d at 14 (quoting Reporters Comm.,
489 U.S. 766 n.18) (ellipsis omitted).5 Whether government
impropriety might be exposed in the process is beside the
point. See id. (“Whether the government’s [] policy is legal or
illegal, proper or improper, is irrelevant to this case.”). There
is, then, a significant public interest to be weighed.
Balancing: The DOJ contends—and the district court
agreed—that the balance categorically tips in favor of
non-disclosure. We think, however, that the district court
drastically understated the public interest when it
“acknowledge[d] that there may be some . . . minimal public
interest” at stake. Citizens for Responsibility & Ethics in
Wash., 870 F. Supp. 2d at 81. As the foregoing discussion
demonstrates, there are substantial interests on both sides of the
scale. Yet a categorical approach is appropriate only if “a
marks omitted); accord Bibles, 519 U.S. at 355–56. “In other
words, the public interest side of the balance is not a function of the
identity of the requester . . . .” Pub. Citizen Health Research Grp. v.
FDA, 185 F.3d 898, 904 (D.C. Cir. 1999); see also Multi Ag Media
LLC, 515 F.3d at 1231 n.2 (“Although [the requester] may not want
the information to check up on the government itself, the use for
which the requestor seeks the information is not relevant for
purposes of determining the public interest under FOIA Exemption
6.”).
5
Even Favish recognized as “significant the asserted public
interest in uncovering deficiencies or misfeasance in the
Government’s investigations.” 541 U.S. at 173. It simply held
that the requester had not made a sufficient showing to substantiate
his claim of impropriety. Id. at 175. In contrast, CREW has made
a sufficient showing to establish the public interest in disclosure of
matters of substantive law enforcement policy.
18
case fits into a genus in which the balance characteristically
tips in one direction.” Reporters Comm., 489 U.S. at 776
(emphasis added); accord Landano, 508 U.S. at 177; Roth, 642
F.3d at 1183–84; Nation Magazine, 71 F.3d at 893. In
Kimberlin, we considered whether a categorical approach was
appropriate where the interests to be balanced were a
prosecutor’s right to privacy regarding the substance of
disciplinary proceedings against him and the public interest in
examining the DOJ’s internal disciplinary process. 139 F.3d
at 948–49. In light of the parties’ apparent agreement that a
categorical approach was inappropriate, we stated that “we
may assume for purposes of this opinion that the balance of
interests relating to the disclosure of material in [a disciplinary]
file will not so often tip toward withholding that a categorical
rule against disclosure is appropriate.” Id. at 948–49. We
endorsed a “case-by-case balancing” approach that considers
“the rank of the public official involved and the seriousness of
the misconduct alleged.” Id. at 949. We think a similar
approach should be followed here. The privacy interests in
the two cases are comparable and the public interest here is
even stronger. Information about the FBI’s and the DOJ’s
investigation of major, wide-ranging public corruption is more
likely to shed light on how the agencies are performing their
statutory duties than a discrete internal disciplinary
proceeding. Although a substantial privacy interest is at stake
here, in light of the similarly substantial countervailing public
interest, the balance does not characteristically tip in favor of
non-disclosure.
We do not hold that the requested information is not
exempt under Exemption 7(C). We simply hold that a
categorical rule is inappropriate here. As CREW
acknowledged at argument, it is likely that some of the
requested information ultimately will be exempt from
disclosure. Recording of Argument 23:15. For instance, the
19
names and identifying information of third parties contained in
investigative files are presumptively exempt. Schrecker, 349
F.3d at 666; SafeCard, 926 F.2d at 1206. Much of the
information sought might also be withheld under one of the
exemptions discussed infra. But that does not justify the
blanket withholding of all responsive documents. Nation
Magazine, 71 F.3d at 896. On remand, the DOJ must attempt
to make a more particularized showing as to what documents
or portions thereof are exempt. The district court must then
weigh what information may be withheld under Exemption
7(C) and whether any information is reasonably segregable and
may be disclosed.
B. Exemption 7(A)
FOIA also exempts from disclosure “records or
information compiled for law enforcement purposes, but only
to the extent that the production of such law enforcement
records or information (A) could reasonably be expected to
interfere with enforcement proceedings.” 5 U.S.C.
§ 552(b)(7)(A). Exemption 7(A) reflects the Congress’s
recognition that “law enforcement agencies ha[ve] legitimate
needs to keep certain records confidential, lest the agencies be
hindered in their investigations or placed at a disadvantage
when it [comes] time to present their case.” NLRB v. Robbins
Tire & Rubber Co., 437 U.S. 214, 224 (1978). As earlier
noted, there is no dispute that the requested records were
compiled for law enforcement purposes. To justify
withholding, the DOJ must therefore demonstrate that
“disclosure (1) could reasonably be expected to interfere with
(2) enforcement proceedings that are (3) pending or reasonably
anticipated.” Mapother v. Dep’t of Justice, 3 F.3d 1533, 1540
(D.C. Cir. 1993) (emphasis omitted).
20
The DOJ identifies the relevant enforcement proceedings
as follows:
There are several outstanding convictions and
sentencing proceedings in the lobbying investigation
related to Abramoff and others which have not yet
been completed. These include, but are not limited
to, the sentencing hearings of Tony Rudy, Todd
Boulanger and Kevin Ring. At least until the
above-described cases and all related criminal
investigations are completed, the FBI will consider
the documents responsive to plaintiff’s request to be
in an open and pending status, as premature release of
any of this information would have a harmful effect
on these pending matters, which will be described in
further detail below.
Hardy Decl. 17 (footnote omitted). The Declaration goes on
to explain how disclosure of the requested records would
interfere with these proceedings: revealing the identities of
potential witnesses and subjecting them to harassment,
disclosing direct and circumstantial evidence, identifying third
parties also under investigation and uncovering the
government’s trial strategy. See id. at 18. We take the DOJ
to be relying on two types of enforcement proceedings: (1)
the specifically-invoked “sentencing hearings of Tony Rudy,
Todd Boulanger and Kevin Ring” and (2) “all related criminal
investigations.” We address each type of proceeding in turn.
The first set of proceedings does not justify withholding
because the sentencing hearings—and appeals—of Rudy,
Boulanger and Ring are no longer “pending or reasonably
anticipated.” Exemption 7(A) is temporal in nature. Robbins
Tire, 437 U.S. at 230–32; see also North v. Walsh, 881 F.2d
1088, 1100 (D.C. Cir. 1989) (“Disclosure of the information
21
[the requester] seeks cannot interfere with parts of the
enforcement proceeding already concluded.”). We therefore
“require a law enforcement agency invoking the exception to
show that the material withheld ‘relates to a concrete
prospective law enforcement proceeding.’” Juarez v. Dep’t of
Justice, 518 F.3d 54, 58 (D.C. Cir. 2008) (quoting Bevis v.
Dep’t of State, 801 F.2d 1386, 1389 (D.C. Cir. 1986)). The
proceeding must remain pending at the time of our decision,
not only at the time of the initial FOIA request. Sussman v.
U.S. Marshals Serv., 494 F.3d 1106, 1115 (D.C. Cir. 2007).
Thus, reliance on Exemption 7(A) may become outdated when
the proceeding at issue comes to a close. See Coastal States
Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 870 (D.C. Cir.
1980) (“There is no reason to protect yellowing documents
contained in long-closed files.”); see also August v. FBI, 328
F.3d 697, 698 (D.C. Cir. 2003); Maydak v. Dep’t of Justice,
218 F.3d 760, 763–64 (D.C. Cir. 2000); Senate of Puerto Rico
v. Dep’t of Justice, 823 F.2d 574, 580–81 (D.C. Cir. 1987).
Since the DOJ filed its Declaration in August 2011, Rudy,
Boulanger and Ring have all been sentenced. See United
States v. Rudy, No. 06-cr-00082-ESH (D.D.C. April 20, 2012);
United States v. Boulanger, No. 09-cr-00025-RWR (D.D.C.
Oct. 14, 2011); United States v. Ring, 08-cr-00274-ESH
(D.D.C. Oct. 26, 2011). Only Ring appealed and this Court
affirmed his conviction more than one year ago. See United
States v. Ring, 706 F.3d 460 (D.C. Cir. Jan. 25, 2013). The
cases are closed—not pending or contemplated—and therefore
are not proceedings with which disclosure may interfere. See
Robbins Tire, 437 U.S. at 232; North, 881 F.2d at 1100.6
6
When asked at argument, counsel for the DOJ raised for the
first time one other proceeding: Fraser Verrusio’s appeal of his
February 10, 2011 conviction on charges stemming from the
Abramoff investigation, the appeal of which remains pending in this
Court. See United States v. Verrusio, No. 11-3080 (argued Nov. 12,
22
The second type of proceeding, ongoing at least in August
2011, consists of “all related criminal investigations.” Hardy
Decl. 17; see also id. at 13 (referring to “continuing large
public corruption investigation”). The district court cited that
language in finding that “the investigation [is] still ongoing.”
Citizens for Responsibility in Wash., 870 F. Supp. 2d at 82, and
the DOJ makes passing reference to the district court’s finding
in its brief, Br. of Appellees 49. To be sure, an ongoing
criminal investigation typically triggers Exemption 7(A):
“[S]o long as the investigation continues to gather evidence for
a possible future criminal case, and that case would be
jeopardized by the premature release of that evidence,
Exemption 7(A) applies.” Juarez, 518 F.3d at 59; see also
Sussman, 494 F.3d at 1114 (“The enforcement proceedings
need not be currently ongoing; it suffices for them to be
reasonably anticipated.” (quotation marks omitted)). But a
combination of factors leaves us with considerable uncertainty
about whether a criminal investigation in fact continues to this
day. The first is the vague nature of the DOJ’s mention of
ongoing investigations, especially when coupled with its
reliance on other specifically enumerated proceedings. The
second is the passage of time: It has been over 30 months
2013). The DOJ’s Declaration does not reference this proceeding
even though Verrusio had been convicted six months, and was
sentenced three weeks, before the Declaration was filed. See
United States v. Verrusio, No. 09-cr-00064-RWR. Moreover, the
DOJ neglected to mention the Verrusio appeal when it filed its brief
in this Court even though by that time the Rudy, Boulanger and Ring
proceedings had all come to a close. See Br. of Appellees (D.C. Cir.
May 15, 2013). The DOJ has therefore forfeited the argument.
See Roth, 642 F.3d at 1181 (contention raised for first time at oral
argument is forfeited); cf. Maydak, 218 F.3d at 764–68 (discussing
general rule that agency must assert all exemptions in district court
proceeding and limited exceptions thereto).
23
since the DOJ filed its Declaration and many more since the
events underlying the investigation took place. Third, when
asked at argument about ongoing proceedings, counsel cited
only the Verrusio appeal, no ongoing investigation.
Recording of Argument 10:04.
Categorical withholding is often appropriate under
Exemption 7(A). Robbins Tire, 437 U.S. at 236 (“Congress
did not intend to prevent the federal courts from determining
that, with respect to particular kinds of enforcement
proceedings, disclosure of particular kinds of investigatory
records while a case is pending would generally ‘interfere with
enforcement proceedings.’”). In such a case, an agency may
satisfy its burden of proof “by grouping documents in
categories and offering generic reasons for withholding the
documents in each category.” Maydak, 218 F.3d at 765. We
have held, however, that
if it wishes to adopt the generic approach, [an agency]
has a three-fold task. First, it must define its
categories functionally. Second, it must conduct a
document-by-document review in order to assign
documents to the proper category. Finally, it must
explain to the court how the release of each category
would interfere with enforcement proceedings.
Bevis, 801 F.2d at 1389–90. As to the third task, although we
give deference to an agency’s predictive judgment of the harm
that will result from disclosure of information, see Ctr. for
Nat’l Sec. Studies v. Dep’t of Justice, 331 F.3d 918, 927–28
(D.C. Cir. 2003), it is not sufficient for the agency to simply
assert that disclosure will interfere with enforcement
proceedings; “it must rather demonstrate how disclosure” will
do so. Sussman, 494 F.3d at 1114; see Campbell v. Dep’t of
24
Health & Human Servs., 682 F.2d 256, 265 (D.C. Cir. 1982).
The DOJ has made no such demonstration here.
The DOJ explains that, in August 2011, there was a
wide-ranging public corruption investigation pending and that
the release of the requested records could disclose to
individuals under investigation the identities of potential
witnesses, the content of the government’s evidence and trial
strategy and the focus of the investigation. Hardy Decl. 16,
18–19. We have often found that similar concerns justify
withholding under Exemption 7(A). In the typical case,
however, the requested records relate to a specific individual or
entity that is the subject of the ongoing investigation, making
the likelihood of interference readily apparent. See, e.g.,
Juarez, 518 F.3d at 58; Swan v. SEC, 96 F.3d 498, 499 (D.C.
Cir. 1996); Alyeska Pipeline Serv. Co. v. EPA, 856 F.2d 309,
312 (D.C Cir. 1988); see also Boyd, 475 F.3d at 386
(documents relating to requester Boyd exempt where
disclosure would reveal details of ongoing investigation of
individuals “related to, controlled by, or influenced by Boyd”
(alterations omitted)). Here, by contrast, the documents
requested relate to DeLay, who is no longer under
investigation; he was told more than three years ago that he
would not be charged. Thus, assuming some individuals do
remain under investigation, the relevant question is whether
any of the responsive records, which are primarily about
DeLay, would disclose anything relevant to the investigation
of those individuals. Given the “intertwined and interrelated
nature of the documents at issue,” Hardy Decl. 17, the answer
may well be yes. But without more information about the
degree of overlap, we cannot say that the circumstances
“‘characteristically support an inference’” that disclosure
would interfere with any pending enforcement proceeding.
Nation Magazine, 71 F.3d at 893 (quoting Landano, 508 U.S.
at 177) (alteration omitted); see also Mapother, 3 F.3d at
25
1542–43 (recognizing potential for interference similar to that
described here but nevertheless remanding for district court to
review documents and decide in first instance whether
disclosure would prejudice government’s case).
Moreover, although the DOJ identifies two distinct
categories of documents—FD-302s and investigative
materials—it never explains how the specific risks entailed in
premature disclosure of one category of document might differ
from risk of disclosure of the other. See Campbell, 682 F.2d
at 263–64 (“If a direct relationship between an active
investigation and withheld information constituted a sufficient
predicate for the invocation of Exemption 7(A), the Court in
Robbins Tire would not have examined the special risks
entailed in premature disclosure of statements of prospective
witnesses in NLRB proceedings, the particular kind of records
at issue in that case.”); see also Robbins Tire, 437 U.S. at 236
(“Exemption 7 was designed to eliminate ‘blanket exemptions’
for Government records simply because they were found in
investigatory files . . . .”). Without more “specific information
about the impact of the disclosures,” we “cannot determine
that, as a matter of law, disclosure ‘could reasonably be
expected to interfere with enforcement proceedings.’”
Sussman, 494 F.3d at 1114.
For these reasons, the DOJ has not met its burden to
warrant categorical withholding. Once again, we do not hold
that the requested information is not exempt. On remand, the
DOJ must clarify whether a related investigation is in fact
ongoing and, if so, how the disclosure of documents relating to
DeLay would interfere with it. Of course, this is not to say the
DOJ must recite the names of subjects under continuing
investigation or otherwise disclose information that would
jeopardize the investigation. We simply require the DOJ to be
26
more specific about the existence vel non of such an
investigation.
C. Exemptions 3, 7(D) and 7(E)
In the alternative, the DOJ briefly invoked—and the
district court even more briefly approved—withholding a
portion of the requested records under Exemptions 3, 7(D) and
7(E).7 Citizens for Responsibility & Ethics in Wash., 870 F.
Supp. 2d at 83–85. The DOJ’s Declaration, however, lacks
the “reasonably specific detail” required to carry its burden of
establishing that each exemption applies, Larson, 565 F.3d at
862, and fails to “give the reviewing court a reasonable basis to
evaluate the claim of privilege,” Judicial Watch, Inc., 449 F.3d
7
It is unclear from the district court order whether it held that
the DOJ could withhold all responsive records under one of these
exemptions or some combination of them, or whether each applies
only to certain categories of documents. Compare Citizens for
Responsibility & Ethics in Wash., 870 F. Supp. 2d at 83 (“In any
event, I find that defendant can properly withhold the records
pursuant to FOIA Exemptions 2, 3, 7(D), and 7(E).”), and id. at 85
(finding “the information” supplied by confidential sources exempt
under Exemption 7(D) but not specifying whether “the information”
includes all responsive records), with id. at 83 (only internal
telephone and fax numbers exempt under Exemption 2), and id. at 84
(only “information that defendant seeks to withhold pursuant to Rule
6(e)” exempt under Exemption 3). To the extent the district court
held that any of these exemptions categorically exempts all
responsive documents, we think that holding was error. For the
reasons discussed infra, the DOJ has not met its burden of
demonstrating that the circumstances “‘characteristically support an
inference’” that Exemption 3, 7(D) or 7(E) applies. Nation
Magazine, 71 F.3d at 893 (quoting Landano, 508 U.S. at 177)
(alteration omitted). CREW does not challenge the district court’s
holding regarding the FBI’s invocation of Exemption 2, which was
expressly limited to internal FBI telephone and fax numbers.
27
at 146 (quoting Gallant, 26 F.3d at 172–73). The Declaration
never specifies how many responsive documents exist and
makes no attempt to link each exemption to specific
documents. Moreover, the explanation for the applicability of
each exemption is inadequate. To aid the parties—and district
court—on remand, we briefly highlight the shortcomings of
the record before us.
Exemption 3: FOIA exempts matters “specifically
exempted from disclosure by statute,” 5 U.S.C. § 552(b)(3),
including a disclosure violative of Federal Rule of Criminal
Procedure 6(e), which provides for the secrecy of grand jury
proceedings. See Stolt-Nielsen Transp. Grp. Ltd. v. United
States, 534 F.3d 728, 732 (D.C. Cir. 2008); Fund for Const.
Gov’t, 656 F.2d at 867–68. “Rule 6(e) applies if the disclosed
material would ‘tend to reveal some secret aspect of the grand
jury’s investigation,’ including ‘the identities of witnesses or
jurors, the substance of testimony, the strategy or direction of
the investigation,’ or ‘the deliberations or questions of jurors.’”
Hodge v. FBI, 703 F.3d 575, 580 (D.C. Cir. 2013) (quoting
Senate of Puerto Rico, 823 F.2d at 582). The DOJ cites
Exemption 3 to withhold “the names of potential grand jury
witnesses and interview statements pertaining to signed proffer
agreements and immunity statements, which could be used as
evidence before a Federal Grand Jury.” Hardy Decl. 24; see
also id. at 20 (“Exemption 3 is asserted to protect information
contained in the FD-302s which identifies specific records that
may be subpoenaed by a Federal Grand Jury.”).
The DOJ bears the burden of “demonstrating some ‘nexus
between disclosure and revelation of a protected aspect of the
grand jury’s investigation.’” Lopez v. Dep’t of Justice, 393
F.3d 1345, 1350 (D.C. Cir. 2005) (quoting Senate of Puerto
Rico, 823 F.2d at 584). But we are told only that the requested
documents contain information that “could be used as evidence
28
before a Federal Grand Jury” or “may be subpoenaed by a
Federal Grand Jury” and therefore that “any such disclosure
would clearly violate the secrecy of the Grand Jury
proceedings.” Hardy Decl. 20, 24 (emphases added). This
conclusory explanation is insufficient. “[T]here is no per se
rule against disclosure of any and all information which has
reached the grand jury chambers,” Lopez, 393 F.3d at 1349, let
alone any and all information which “could” reach the grand
jury, see In re Sealed Case, 192 F.3d 995, 1001–03 (D.C. Cir.
1999) (per curiam); Wash. Post Co. v. Dep’t of Justice, 863
F.2d 96, 100 (D.C. Cir. 1988); see also Stolt-Nielsen Transp.
Grp. Ltd., 534 F.3d at 732 (“[T]he government may not bring
information into the protection of Rule 6(e) and thereby into
the protection afforded by Exemption 3, simply by submitting
it as a grand jury exhibit.”). Although we do not doubt that
some of the requested records may fall under Exemption 3, the
DOJ has not yet supplied sufficient information for a court to
make that determination. Senate of Puerto Rico, 823 F.2d at
584; see Lopez, 393 F.3d at 1349–51.
Exemption 7(D): FOIA also exempts records or
information compiled for law enforcement purposes to the
extent disclosure of such records “could reasonably be
expected to disclose the identity of a confidential source” or
“information furnished by a confidential source.” 5 U.S.C.
§ 552(b)(7)(D). The DOJ cites this exemption to “protect the
identities of, and information received from, individuals who
provided information to the FBI during the course of the . . .
investigation.” Hardy Decl. 21. Unlike Exemption 7(C),
Exemption 7(D) does not require balancing. Roth, 642 F.3d at
1184; Davis v. Dep’t of Justice, 968 F.2d 1276, 1281 (D.C. Cir.
1992). It does, however, require a showing that the source is a
confidential one. See Landano, 508 U.S. at 172 (“[T]he
question is not whether the requested document is of the type
that the agency usually treats as confidential, but whether the
29
particular source spoke with an understanding that the
communication would remain confidential.”). “[I]t is not
enough for the agency to claim that all sources providing
information in the course of a criminal investigation do so on a
confidential basis.” Roth, 642 F.3d at 1184; see Landano, 508
U.S. at 180–81. Yet that is essentially what the DOJ has done
by stating, in the alternative and without specific explanation,
that all of its sources “were interviewed either under express
confidentiality and/or under circumstances from which an
assurance of confidentiality may be implied.” Hardy Decl.
21; see also id. at 30–31 (explaining how informants provide
information during the course of “an investigation,” with no tie
to this investigation). Such boilerplate will not do. See
Billington v. Dep’t of Justice, 233 F.3d 581, 584 (D.C. Cir.
2000) (“This bald assertion that express assurances were given
amounts to little more than recitation of the statutory standard,
which we have held is insufficient.”); Campbell v. Dep’t of
Justice, 164 F.3d 20, 34–35 (D.C. Cir. 1998) (rejecting
assertion that express assurances of confidentiality were given
where declarant demonstrated no basis for knowledge of
alleged fact); Computer Prof’ls for Soc. Responsibility v.
Secret Serv., 72 F.3d 897, 906 (D.C. Cir. 1996) (description of
“the manner in which an agency ‘routinely’ handles
information is not sufficient to establish an implied assurance
of confidentiality as to any particular source”). To invoke
Exemption 7(D) on remand, the DOJ must either “present
probative evidence that the source did in fact receive an
express grant of confidentiality,” Campbell, 164 F.3d at 34
(quotation omitted), or “‘point to more narrowly defined
circumstances that . . . support the inference’ of
confidentiality.” Roth, 642 F.3d at 1184 (quoting Landano,
508 U.S. at 179).
Exemption 7(E): FOIA also exempts records or
information compiled for law enforcement purposes to the
30
extent release of such records “would disclose techniques and
procedures for law enforcement investigations or prosecutions,
or 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). The DOJ cites Exemption 7(E) “to
protect procedures and techniques used by FBI [agents] during
the investigation.” Hardy Decl. 21; accord id. at 31. This
near-verbatim recitation of the statutory standard is inadequate.
We are not told what procedures are at stake. (Perhaps how
the FBI conducts witness interviews? Or how it investigates
public corruption?) Nor are we told how disclosure of the
FD-302s or investigative materials could reveal such
procedures. (Are the procedures spelled out in the
documents? Or would the reader be able to extrapolate what
the procedures are from the information contained therein?)
Although Exemption 7(E) sets a “low bar for the agency to
justify withholding,” Blackwell v. FBI, 646 F.3d 37, 42 (D.C.
Cir. 2011), the agency must at least provide some explanation
of what procedures are involved and how they would be
disclosed. See id. (FBI sought to withhold “details about
procedures used during the forensic examination of a computer
by an FBI forensic examiner” (quotation marks omitted));
Mayer Brown LLP v. IRS, 562 F.3d 1190, 1192 (D.C. Cir.
2009) (IRS sought to withhold information setting forth
“settlement strategies and objectives, assessments of litigating
hazards, and acceptable ranges of percentages for settlement”
(quotation marks and alteration omitted)); Morley v. CIA, 508
F.3d 1108, 1128–29 (D.C. Cir. 2007) (CIA sought to withhold
information revealing procedures for conducting security
clearances and background investigations).8
8
Twice the DOJ asserted that disclosure of the requested
records “could enable the targets of these techniques to avoid
detection or develop countermeasures to circumvent the ability of
31
III
The DOJ has not met its burden to justify categorical
withholding under Exemption 7(A) or 7(C). Nor has it
provided sufficient detail at this stage for a court to determine
whether a portion of the requested records may be withheld
under Exemption 3, 7(D) or 7(E). Summary judgment for the
defendant is therefore reversed and the case is remanded for
further proceedings consistent with this opinion.
So ordered.
the FBI to effectively use important law enforcement techniques.”
Hardy Decl. 21, 31. We note some disagreement whether the “risk
of circumvention” requirement applies to records containing
“techniques and procedures” or only to records containing
“guidelines.” See Pub. Emps. for Envtl. Responsibility, 740 F.3d at
204 n.4. We need not pursue that issue, however, because the
antecedent questions of what techniques and procedures are involved
and how they could be disclosed have not been answered
sufficiently.