Labow v. United States Department of Justice , 831 F.3d 523 ( 2016 )


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  •  United States Court of Appeals
    FOR THE DISTRICT OF COLUMBIA CIRCUIT
    Argued February 10, 2016             Decided August 5, 2016
    No. 14-5220
    JEFFREY LABOW,
    APPELLANT
    v.
    UNITED STATES DEPARTMENT OF JUSTICE,
    APPELLEE
    Appeal from the United States District Court
    for the District of Columbia
    (No. 1:11-cv-01256)
    Jeffrey Light argued the cause and filed the briefs for
    appellant.
    John G. Interrante, Assistant U.S. Attorney, argued the
    cause for appellee. With him on the brief was R. Craig
    Lawrence, Assistant U.S. Attorney.
    Before: HENDERSON, ROGERS and SRINIVASAN, Circuit
    Judges.
    Opinion for the Court filed by Circuit Judge SRINIVASAN.
    2
    SRINIVASAN, Circuit Judge: In 2011, appellant Jeffrey
    Labow came to learn that he had been identified as an
    anarchist extremist by an FBI agent. Labow then submitted a
    request to the FBI under the Freedom of Information Act for
    any records about himself. Although the FBI released some
    responsive records to Labow, it withheld disclosure of, or
    redacted information from, other responsive documents, citing
    various grounds.      The district court upheld the FBI’s
    withholdings and redactions in full, and granted summary
    judgment in favor of the agency. We agree in some respects
    and disagree in others. We therefore affirm in part, reverse in
    part, and remand the case for further proceedings.
    I.
    Because we are reviewing a grant of summary judgment,
    “we view the facts in the light most favorable to” Labow.
    Chambers v. U.S. Dep’t of Interior, 
    568 F.3d 998
    , 1000 (D.C.
    Cir. 2009). In 2008, anarchists protesting against the World
    Bank and International Monetary Fund vandalized the Four
    Seasons hotel in Washington, D.C. The FBI’s Joint Terrorism
    Task Force investigated the incident. One of the targets of the
    investigation sued the government. In the course of a
    deposition in connection with that lawsuit, an FBI agent
    mentioned Jeffrey Labow as another known extremist. The
    agent refused to answer a question about whether the FBI
    maintained a file about Labow because answering might
    reveal information about ongoing law enforcement activities.
    Based on the agent’s answers in the deposition, Labow
    suspected that the FBI maintained records about him.
    Labow then filed a request under the Freedom of
    Information Act (FOIA) with the FBI, seeking “files,
    correspondence, or other records concerning [him]self.” J.A.
    26. The FBI initially claimed that it had no responsive
    3
    records. Labow, after exhausting the administrative appeals
    process, then brought this action in district court. He later
    amended his complaint to add a request for records about a
    person named Lawrence Kuhn, another target of the FBI’s
    investigation into the Four Seasons incident.
    As Labow’s lawsuit progressed, the FBI found several
    hundred pages of records concerning Labow and more than a
    thousand pages about Kuhn. The FBI released some of these
    records to Labow. With regard to other documents, the FBI
    redacted information from them or refused to release them at
    all, invoking various statutory exemptions.
    The government moved for summary judgment against
    Labow on his claims seeking disclosure of the withheld
    documents and redacted information. In his opposition,
    Labow challenged the government’s reliance on FOIA’s
    exemptions, and he also contended that the government had
    improperly relied on a statutory exclusion from FOIA’s
    coverage. After in camera review of documents submitted ex
    parte by the government, the district court rejected Labow’s
    arguments and granted the government’s summary judgment
    motion in full. Labow now appeals.
    II.
    We review the district court’s grant of summary
    judgment de novo. Pub. Inv’rs Arbitration Bar Ass’n v. SEC,
    
    771 F.3d 1
    , 3 (D.C. Cir. 2014). We first consider the FBI’s
    reliance on various statutory exemptions as the basis for
    redacting information from responsive documents or
    withholding their release altogether. Our review calls for
    “ascertain[ing] whether the agency has sustained its burden of
    demonstrating that the documents requested are . . . exempt
    from disclosure.” 
    Id. (quoting ACLU
    v. Dep’t of Justice, 655
    
    4 F.3d 1
    , 5 (D.C. Cir. 2011)). We take up, in turn, each FOIA
    exemption as to which Labow raises a challenge.
    A.
    We first consider the FBI’s reliance on FOIA Exemption
    3 to withhold information associated with a pen register order.
    A pen register is a device installed on a phone line to enable
    recording the phone numbers dialed on that line.
    Exemption 3, in relevant part, provides that FOIA’s
    disclosure obligation “does not apply to matters that are . . .
    specifically exempted from disclosure by [another] statute,” if
    the statute “(i) requires that the matters be withheld from the
    public in such a manner as to leave no discretion on the
    issue,” or “(ii) establishes particular criteria for withholding
    or refers to particular types of matters to be withheld.” 5
    U.S.C. § 552(b)(3)(A). In this case, the FBI withheld certain
    responsive documents and information about Labow on the
    rationale that they were “specifically exempted from
    disclosure by statute,” 
    id., i.e., the
    Pen Register Act, 18
    U.S.C. § 3123(d). The district court upheld the FBI’s reliance
    on the Pen Register Act under Exemption 3.
    When assessing whether a statute “specifically
    exempt[s]” matters “from disclosure” for purposes of
    Exemption 3, 5 U.S.C. § 552(b)(3), we ask two questions:
    “Does the statute meet Exemption 3’s requirements? And
    does the information that was withheld fall within that
    statute’s coverage?” Newport Aeronautical Sales v. Dep’t of
    the Air Force, 68
    4 F.3d 1
    60, 165 (D.C. Cir. 2012). Here, we
    affirm the district court as to the first question but reverse and
    remand as to the second.
    5
    To address the first question, we look to the terms of the
    statute invoked by the government—the Pen Register Act.
    That statute provides:
    An order authorizing or approving the installation
    and use of a pen register or a trap and trace device
    shall direct that—
    (1) the order be sealed until otherwise ordered by
    the court; and
    (2) the person owning or leasing the line or other
    facility to which the pen register or a trap and
    trace device is attached, or applied, or who is
    obligated by the order to provide assistance to
    the applicant, not disclose the existence of the
    pen register or trap and trace device or the
    existence of the investigation to the listed
    subscriber, or to any other person, unless or
    until otherwise ordered by the court.
    18 U.S.C. § 3123(d).
    That statute fits within Exemption 3 if, as noted, it either
    “(i) requires that . . . matters be withheld from the public in
    such a manner as to leave no discretion on the issue” or “(ii)
    establishes particular criteria for withholding or refers to
    particular types of matters to be withheld.” 5 U.S.C.
    § 552(b)(3)(A)(i)-(ii). Because the Pen Register Act satisfies
    the latter test, we need not consider the former. The statute
    identifies “particular types of matters to be withheld,” 5
    U.S.C. § 552(b)(3)(A)(ii), in that it requires the sealing of
    “[a]n order authorizing or approving the installation and use
    of a pen register or a trap and trace device,” 18 U.S.C.
    § 3123(d). That description is at least as specific as other
    6
    statutes which we have held adequately specify “matters to be
    withheld” for purposes of Exemption 3.
    For instance, we have held that Title III, another
    electronic surveillance statute, is a qualifying statute under
    Exemption 3 because it applies to “intercepted
    communications,” a category sufficiently “narrow and well-
    defined” to implicate the exemption. Lam Lek Chong v. U.S.
    Drug Enf’t Admin., 
    929 F.2d 729
    , 733 (D.C. Cir. 1991). We
    have similarly determined that “proprietary information”
    under the Tariff Act is a particular matter for purposes of
    Exemption 3. Mudge Rose Guthrie Alexander & Ferdon v.
    ITC, 
    846 F.2d 1527
    , 1529-31 (D.C. Cir. 1988). We reached
    the same conclusion with regard to information “pertaining to
    the issuance or refusal of visas” under the Immigration and
    Nationality Act. Medina-Hincapie v. Dep’t of State, 
    700 F.2d 737
    , 742 (D.C. Cir. 1983). Orders authorizing the installation
    or use of a pen register likewise “refer[] to particular types of
    matters to be withheld” within the meaning of Exemption 3.
    5 U.S.C. § 552(b)(3)(A)(ii).
    Because the Pen Register Act is a qualifying statute under
    Exemption 3, we next ask whether that statute authorized
    withholding the particular information at issue in this case.
    See Newport Aeronautical 
    Sales, 684 F.3d at 165
    . Labow
    argues that the Pen Register Act permits the government to
    withhold only a sealed pen register order itself. As a result,
    he contends, the statute does not justify withholding all
    information appearing in (or associated with) a sealed pen
    register order, even if the same information is contained in
    other responsive records beyond the order. In that event,
    Labow submits, because the Pen Register Act would not call
    for sealing the other records, Exemption 3 should not shield
    those other records from FOIA’s disclosure mandate.
    7
    As a general matter, we agree with Labow’s reading of
    the Pen Register Act. By its terms, the statute provides for
    sealing of a pen register order itself, not sealing of any and all
    information the order may contain even if appearing in other
    documents. See 18 U.S.C. § 3132(d)(1). Although the statute
    additionally bars disclosures by certain private parties about
    the existence of a pen register order in the absence of a court
    order allowing disclosure, 
    id. § 3123(d)(2),
    that limitation
    does not apply to the government. As a result, Exemption 3
    of FOIA, as regards the Pen Register Act, primarily
    authorizes the government to withhold a responsive pen
    register order itself, not all information that may be contained
    in or associated with a pen register order.
    To the extent the statute arguably authorizes withholding
    documents other than a pen register order, we have no
    occasion to address the issue because we do not know
    whether this case involves withholding of any records beyond
    a pen register order. The FBI’s chief of records management,
    David M. Hardy, describes the withheld material as
    information “surrounding FBI [agents] making arrangements
    to set up and install a pen register and trap and trace device
    during a criminal investigation,” including the “identities and
    phone numbers of the individuals subject to pen registers in
    this case.” Hardy Decl. ¶ 73 (J.A. 93). Hardy, however, does
    not specifically say whether that information was contained in
    a pen register order itself, and whether, if so, it also appeared
    in other responsive records.
    In these circumstances, we conclude that the district court
    erred in sustaining the government’s reliance on the Pen
    Register Act based solely on Hardy’s declaration. See Labow
    v. U.S. Dep’t of Justice, 
    66 F. Supp. 3d 104
    , 120 (D.D.C.
    2014). We remand for the district court to assess whether the
    specific information withheld in this case is protected by the
    8
    Pen Register Act. If the government withheld information
    contained exclusively in a pen register order, the information
    would necessarily fall under the Pen Register Act’s
    nondisclosure requirements and thus would be shielded under
    Exemption 3 (assuming the pen register order remains
    sealed). But if the government withheld information found in
    other responsive documents on the ground that a pen register
    order also contained the same information, the potential
    applicability of the Pen Register Statute (and hence of
    Exemption 3) would be far less clear. As it currently stands,
    we do not know whether this case involves the latter situation,
    or, if so, whether there may be some justification for
    withholding the information beyond the mere fact that it also
    appears in a pen register order.
    B.
    Labow next challenges the government’s withholding of
    records subpoenaed by a grand jury, also under Exemption 3.
    This court has already held that Federal Rule of Criminal
    Procedure 6(e) is a qualifying statute under Exemption 3.
    Fund for Constitutional Gov’t v. Nat’l Archives & Records
    Serv., 
    656 F.2d 856
    , 868 (D.C. Cir. 1981). Consequently, the
    sole question before us is whether the documents withheld
    from disclosure fall within Rule 6(e).
    Rule 6(e) bars disclosure of “matter[s] occurring before a
    grand jury.” Fed. R. Crim. P. 6(e). In this case, the
    government withheld “copies of specific records provided to a
    federal grand jury in response to federal grand jury
    subpoenas” because they “could reveal the inner workings of
    a federal grand jury.” Hardy Decl. ¶ 74 (J.A. 94). The district
    court found the withholding permissible because releasing the
    documents would “reveal the strategy or direction of the
    investigation.” 
    Labow, 66 F. Supp. 3d at 121
    (alterations
    9
    omitted) (quoting Senate of P.R. v. U.S. Dep’t of Justice, 
    823 F.2d 574
    , 582 (D.C. Cir. 1987)). But the court provided no
    explanation of why the records would reveal anything about
    the investigation, and without knowing more, we do not think
    they necessarily would.
    Rule 6(e) does not “draw ‘a veil of secrecy . . . over all
    matters occurring in the world that happen to be investigated
    by a grand jury.’” Senate of 
    P.R., 823 F.2d at 582
    (quoting
    SEC v. Dresser Indus. Inc., 
    628 F.2d 1368
    , 1382 (D.C. Cir.
    1980) (en banc)). Instead, the “touchstone” is whether the
    information sought would reveal something about the grand
    jury’s identity, investigation, or deliberation. 
    Id. The mere
    fact that information has been presented to the grand jury does
    not itself permit withholding. 
    Id. at 584.
    The government argues that documents subpoenaed by a
    grand jury are more revealing than documents merely
    presented to a grand jury, because they reveal the direction of
    the grand jury’s investigation. If the documents would reveal
    to the requester that they had been subpoenaed, we would
    agree. See Lopez v. Dep’t of Justice, 
    393 F.3d 1345
    , 1349-50
    (D.C. Cir. 2005) (allowing withholding of grand jury
    subpoenas).      But subpoenaed documents would not
    necessarily reveal a connection to a grand jury. After all,
    Labow did not request documents related to a grand jury; he
    sought documents about particular people. The government
    revealed the existence of a grand jury by withholding
    documents under Rule 6(e).
    It is possible that, had the government released the
    documents without invoking Exemption 3, Labow would
    never have known that any of the documents had been
    subpoenaed by a grand jury. Of course, it is also possible that
    the documents do somehow reveal that they were subpoenaed
    10
    by a grand jury. That might be the case, for instance, if the
    government’s sole copies of the documents were marked as
    grand jury exhibits, or if documents referenced the grand jury
    subpoena. On the current record, however, we do not know
    whether the documents at issue somehow necessarily evince
    their connection to a grand jury, much less do so in a manner
    that could not be dealt with through redactions.
    The government’s declaration only offers the conclusory
    statement that “[a]ny disclosure of this information would
    clearly violate the secrecy of the grand jury proceedings and
    could reveal the inner workings of a federal grand jury.”
    Hardy Decl. ¶ 74 (J.A. 94). The government later clarified
    that “documents obtained by the FBI independently of a grand
    jury were not withheld pursuant to Exemption 3,” Second
    Hardy Decl. ¶ 11 (J.A. 132), but we do not know why
    documents obtained through the grand jury’s subpoenas
    would necessarily reveal that connection. As in Senate of
    Puerto Rico, “[i]t may turn out, in this case, that most, or even
    all, of the material withheld pursuant to exemption (b)(3)
    cannot be disclosed without compromising the secrecy of a
    grand jury’s deliberations. We hold only that the defendants
    have not yet supplied the information a court must have in
    order to intelligently make that 
    judgment.” 823 F.2d at 584
    .
    The mere fact the documents were subpoenaed fails to justify
    withholding under Rule 6(e).
    We therefore remand for the district court to consider
    whether the release of the documents subpoenaed by the
    grand jury would reveal something about the grand jury’s
    investigation. Of course, if the documents are now belatedly
    released, it might be apparent that they had been subpoenaed
    by a grand jury given that the potential connection with a
    grand jury is now known. That fact, however, should not bar
    disclosure. As we have previously held, the relevant question
    11
    is whether the documents would have revealed the inner
    workings of the grand jury had they been released in response
    to the initial FOIA request. See Wash. Post Co. v. U.S. Dep’t
    of Justice, 
    863 F.2d 96
    , 100 (D.C. Cir. 1988). The district
    court therefore should consider whether the documents would
    have revealed something about the workings of the grand jury
    had they been released with other requested documents.
    C.
    Labow also contests the FBI’s withholding of
    information provided by confidential informants under
    Exemption 7(D). That exemption protects “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
    disclose the identity of a confidential source.” 5 U.S.C.
    § 552(b)(7). A source counts as confidential “if the source
    provided information under an express assurance of
    confidentiality or in circumstances from which such an
    assurance could reasonably be inferred.” Williams v. FBI, 
    69 F.3d 1155
    , 1159 (D.C. Cir. 1995) (quoting U.S. Dep’t of
    Justice v. Landano, 
    508 U.S. 165
    , 172 (1993)) (internal
    quotation marks omitted). The district court permitted
    withholdings based on both express and implied assurances of
    confidentiality, 
    Labow, 66 F. Supp. 3d at 124-25
    , but Labow
    appeals only the withholdings based on implied assurances.
    At this point, the government has withheld only one page of
    one document based solely on implied assurances of
    confidentiality.
    “The agency invoking Exception 7(D) bears the burden
    of proving that it applies, and with respect to the FBI, it is not
    enough for the agency to claim that all sources providing
    information in the course of a criminal investigation do so on
    12
    a confidential basis.” Roth v. U.S. Dep’t of Justice, 
    642 F.3d 1161
    , 1184 (D.C. Cir. 2011). We consider four factors when
    assessing an implied assurance of confidentiality: “the
    character of the crime at issue, the source’s relation to the
    crime, whether the source received payment, and whether the
    source has an ongoing relationship with the law enforcement
    agency and typically communicates with the agency only at
    locations and under conditions which assure the contact will
    not be noticed.” 
    Id. (quoting Landano,
    508 U.S. at 179)
    (internal quotation marks omitted).
    In this case, David M. Hardy, who as noted is the FBI’s
    chief of records management, has submitted several
    declarations describing informants who provided information
    withheld from Labow. Based on those declarations, we
    conclude that the four Roth factors favor a finding of implied
    confidentiality for purposes of Exemption 7(D).
    The first factor, the character of the crime, contemplates
    that sources likely expect confidentiality when they report on
    serious or violent crimes, risking retaliation. See 
    Landano, 508 U.S. at 179
    ; Mays v. Drug Enf’t Admin., 23
    4 F.3d 1
    324,
    1330 (D.C. Cir. 2000). Hardy’s declaration states that “[t]he
    disclosure of the identities of these sources and the
    information they provided could have disastrous
    consequences because disclosure could subject these third
    parties, as well as their families, to embarrassment,
    humiliation, and/or physical or mental harm.” Hardy Decl.
    ¶ 96(a) (J.A. 109).       He further explains that “sources
    providing information to the FBI about extremist activities do
    so at great peril to themselves and have faced retaliation and
    threats (including death threats) when their assistance to the
    FBI has been publicly disclosed.” 
    Id. 13 Although
    Labow correctly observes that the withholdings
    at issue are contained in a document predating the incident at
    the Four Seasons, Hardy’s explanation of the risks of
    informing on anarchist groups spoke to the potential dangers
    posed by anarchist extremists in general, not solely by the
    particular individuals who planned the Four Seasons attack.
    And while Labow argues that Hardy’s explanations are too
    general and conclusory, we have credited the FBI’s
    assessment of risks faced by informants even if described in
    relatively broad strokes. In Hodge v. FBI, 
    703 F.3d 575
    , 581
    (D.C. Cir. 2013), for example, an FBI declaration stated that
    disclosure “could have disastrous consequences” and “subject
    [informants] to violent reprisals.” We found that explanation
    sufficient, and we do the same here. The government need
    not provide justifications specific to a particular group of
    offenders when inferences can reasonably be drawn from the
    type of crime committed.
    The second Roth factor calls for considering the source’s
    relationship to the crime, because sources divulging non-
    public, identifying information are more “vulnerable to
    retaliation.” 
    Mays, 234 F.3d at 1330
    . Here, Hardy’s
    declarations do not claim that the informants directly
    participated in the crime about which they provided
    information. But a source of course need not have personally
    participated in a crime in order to know information about it
    that could reveal her identity were the information to be
    released. In this case, Hardy explains, the informants were
    “in a position to have ready access to and/or knowledge about
    targets and others involved in extremist activities.” Hardy
    Decl. ¶ 96(a) (J.A 108). And those sources “provided specific
    detailed information that is singular in nature.” 
    Id. That describes
    the kind of information that, if it were revealed to
    the public, could be traced to a particular source.
    14
    With regard to the third Roth factor, all parties agree that
    the sources did not receive payment. That fact weighs against
    a finding of confidentiality, but it is not itself dispositive.
    Finally, the fourth Roth factor concerns the duration of
    the source’s relationship with law enforcement and the
    manner of communication.           Consistent and secretive
    communications indicate a source’s expectation of
    confidentiality. Here, we have no information about the
    sources’ manner of communication. But Hardy’s declaration
    does indicate that the sources provided information “over a
    period of time that had proven to be reliable.” 
    Id. That factor
    thus weighs at least modestly in favor of a finding of
    confidentiality.
    Considering the four factors together, we agree with the
    district court that they suggest the sources expected
    confidentiality. Although the sources were not paid, they
    provided ongoing, singular information about serious crimes.
    In those circumstances, the district court correctly sustained
    the FBI’s reliance on Exemption 7(D).
    D.
    Earlier in this appeal, Labow had also challenged a
    withholding under Exemption 7(A), which exempts “records
    or information compiled for law enforcement purposes” if
    disclosure “could reasonably be expected to interfere with
    enforcement proceedings.” 5 U.S.C. § 552(b)(7)(A). The
    government has now released the documents it initially
    withheld under Exemption 7(A), Appellee’s Br. 17, so that
    issue is no longer a live one. We will grant Labow’s request
    to vacate the district court’s grant of summary judgment to the
    government with regard to its use of Exemption 7(A). See
    Carlisle Tire & Rubber Co. v. U.S. Customs Serv., 
    663 F.2d 15
    210, 213 (D.C. Cir. 1980). Vacatur is appropriate when a
    party moots an issue it won in a lower court, precluding
    review on appeal and preserving the lower-court opinion as
    precedent. See 13C Charles Alan Wright et al., Federal
    Practice and Procedure § 3533.10.1 (3d ed. 2008). Although
    district court opinions do not establish binding precedent on
    other courts, the government has not objected to vacatur here.
    We thus grant Labow’s request.
    III.
    Labow’s final challenge concerns the government’s
    possible reliance on a FOIA exclusion. See 5 U.S.C. § 552(c).
    Exclusions differ from exemptions in that the government
    need not affirmatively claim the former. Rather, when an
    exclusion applies, the government may “treat the records as
    not subject to the requirements” of FOIA at all, 
    id., and can
    thus withhold the documents without comment.
    Although the government has not publicly invoked an
    exclusion in this case, Labow suspects that the government
    withheld records based on the exclusion set forth in 5 U.S.C.
    § 552(c)(1). That exclusion applies if:
    a request is made which involves access to
    records described in [Exemption 7(A)] and—
    (A) the investigation or proceeding involves a
    possible violation of criminal law; and
    (B) there is reason to believe that (i) the
    subject of the investigation or proceeding
    is not aware of its pendency, and (ii)
    disclosure of the existence of the records
    16
    could reasonably be expected to interfere
    with enforcement proceedings
    5 U.S.C. § 552(c)(1). Exemption 7(A) in turn, as noted,
    encompasses records whose production “could reasonably be
    expected to interfere with enforcement proceedings.” 
    Id. § 552(b)(7)(A).
    The two provisions together thus exclude
    records from FOIA’s disclosure mandate if production would
    interfere with enforcement proceedings and the documents
    relate to a criminal investigation about which the target is
    unaware.
    In this case, the district court, adhering to standard FBI
    practice when confronting a challenge to the suspected use of
    the exclusion at issue here, reviewed an ex parte FBI affidavit
    in camera to determine whether the exclusion had in fact been
    applied, and, if so, whether its application was appropriate.
    
    Labow, 66 F. Supp. 3d at 128
    ; see ACLU of Mich. v. FBI, 
    734 F.3d 460
    , 470-71 (6th Cir. 2013). In rejecting Labow’s
    challenge to the suspected use of the exclusion, the district
    court said only that, “if an exclusion was in fact employed, it
    was, and continues to remain, amply justified.” Labow, 66 F.
    Supp. 3d at 128. Labow thus remains unsure of whether the
    government actually made use of the exclusion to withhold
    records.
    We review the district court’s decision to review
    evidence ex parte for abuse of discretion. See Lykins v. U.S.
    Dep’t of Justice, 
    725 F.2d 1455
    , 1465 (D.C. Cir. 1984). The
    specific question is whether the court abused its discretion by
    relying on in camera review of the ex parte affidavit rather
    than following an alternative method presented by Labow for
    addressing a challenge to the government’s possible use of a
    FOIA exclusion. While we have explained that a court should
    resort to in camera review only in limited circumstances, see
    17
    Yeager v. Drug Enf’t Admin., 
    678 F.2d 315
    , 324 (D.C. Cir.
    1982), we find no abuse of discretion here.
    Under Labow’s alternative proposal, the parties would
    first assume that an exclusion had been applied and would
    submit public briefs on whether the hypothetical reliance on
    the exclusion would be appropriate. The district court would
    then issue a public opinion addressing whether the exclusion,
    in theory, would be applicable in the circumstances. If the
    theoretical use of the exclusion were invalid, the court would
    then review ex parte submissions to determine whether the
    government in fact made use of the exclusion. In essence,
    Labow’s proposal inverts the approach followed by the
    district court: instead of initially assessing whether an
    exclusion in fact was used and then, if so, assessing the
    permissibility of its use, Labow would first ask whether
    reliance on the exclusion would be permissible and then, if so,
    assess whether it in fact was used.
    Labow’s suggested approach would generally enable a
    FOIA requester to learn whether the government’s use of an
    exclusion would (at least in theory) be justified in the
    circumstances. But district courts would be in the business of
    considering and deciding abstract questions about the
    theoretical applicability of a FOIA exclusion in circumstances
    in which the government might have never relied on the
    exclusion in the first place.
    Two courts of appeals have rejected proposals paralleling
    Labow’s. The Sixth Circuit refused to require the same
    procedure, for reasons including the risks of revealing
    information during the briefing process. ACLU of 
    Mich., 734 F.3d at 470-72
    .       The more the government turns to
    hypothetical arguments to avoid revealing any information,
    the court reasoned, the less productive the adversarial briefing
    18
    would be: “Open-ended hypothetical questions are not well
    suited to the litigation process.” 
    Id. at 472.
    And the
    government would be “tasked with responding to [abstract]
    shots in the dark” in circumstances in which “fashioning a
    response is fraught with concerns of accidentally disclosing
    the existence or nonexistence of secret information.” 
    Id. The Third
    Circuit later came to the same conclusion. ACLU of
    N.J. v. FBI, 
    733 F.3d 526
    , 533-35 (3d Cir. 2013). Here, the
    district court did not abuse its discretion in declining to follow
    a process rejected by those decisions and instead adhering to a
    practice endorsed by them.
    We must finally review de novo whether the district court
    was wrong in finding no error in the FBI’s reliance, if any, on
    an exclusion in this case. We, like the district court, have
    reviewed the government’s submissions about the exclusion
    in camera. And we, like the district court, will not comment
    on whether the FBI in fact relied on an exclusion. Instead, we
    hold only that no documents have been withheld pursuant to
    any impermissible use of an exclusion.
    *   *    *   *    *
    For the foregoing reasons, we affirm the district court’s
    grant of summary judgment in favor of the government on the
    claims under Exemption 7(D) and under the exclusion set
    forth in 5 U.S.C. § 552(c)(1). We reverse the grant of
    summary judgment on both challenges to withholdings under
    Exemption 3 and remand for further proceedings consistent
    with this opinion. Finally, we vacate the district court’s
    opinion with regard to Exemption 7(A).
    So ordered.