Juan Machado Amadis v. DOS ( 2020 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 17, 2020 Decided August 21, 2020
No. 19-5088
JUAN LUCIANO MACHADO AMADIS,
APPELLANT
v.
UNITED STATES DEPARTMENT OF STATE AND UNITED STATES
DEPARTMENT OF JUSTICE,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:16-cv-02230)
Kelly B. McClanahan argued the cause and filed the briefs
for appellant.
Katie Townsend argued the cause for amici curiae The
Reporters Committee for Freedom of the Press and 36 Media
Organizations in support of plaintiff-appellant. With her on the
brief were Bruce D. Brown, David McCraw, Barbara L.
Camens, Laura R. Handman, Alison Schary, Kurt Wimmer,
James Cregan, Bruce W. Sanford, Mark I. Bailen, and Kathleen
A. Kirby.
Weili J. Shaw, Attorney, U.S. Department of Justice,
argued the cause for appellees. With him on the brief were
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Jessie K. Liu, U.S. Attorney, and Sharon Swingle, Attorney. R.
Craig Lawrence and April D. Seabrook, Assistant U.S.
Attorneys, entered appearances.
Before: ROGERS and KATSAS, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.*
Opinion for the Court filed by Circuit Judge KATSAS.
This appeal presents several questions under the Freedom
of Information Act. One of them is whether certain record
searches were adequate. Another is whether an agency may
invoke the deliberative-process privilege to withhold advice
provided by subordinate attorneys to their superiors. A third is
whether FOIA requesters must exhaust administrative appeals
when the agency, after completing its search, offers to conduct
another search if presented with additional information.
I
Juan Machado Amadis is a citizen and resident of the
Dominican Republic. He repeatedly has applied for a United
States entry visa. The Department of State has denied the
applications on the ground that Machado is inadmissible as a
suspected drug trafficker.
Machado has filed three sets of FOIA requests for
information about the denials. He has sought records from the
*
The late Senior Circuit Judge Stephen F. Williams was a
member of the panel at the time the case was argued and participated
in its consideration before his death on August 7, 2020. Because he
died before this opinion’s issuance, his vote was not counted. See
Yovino v. Rizo, 139 S. Ct. 706, 710 (2019). Judge Rogers and Judge
Katsas have acted as a quorum with respect to this opinion and
judgment. See 28 U.S.C. § 46(d).
3
State Department and three components of the Department of
Justice—the Drug Enforcement Administration, Federal
Bureau of Investigation, and Office of Information Policy.
In 2016, Machado filed his first set of requests with the
State Department, DEA, and FBI. These requests sought
information about Machado’s alleged criminal activity. The
State Department produced responsive records, but neither the
DEA nor the FBI found any. Machado appealed the DEA and
FBI determinations to OIP, which adjudicates FOIA appeals
within the Justice Department. OIP affirmed the FBI’s
determination and closed the appeal of the DEA’s
determination once Machado filed this lawsuit. Machado no
longer challenges any response to this first set of requests.
In 2017, Machado filed a second set of FOIA requests.
From the State Department, DEA, and FBI, Machado sought
records “memorializing or describing the processing of his
previous FOIA Request.” J.A. 81, 112, 221. And from OIP,
he sought records “memorializing or describing the processing
of his previous FOIA Appeal[s].” J.A. 280. The State
Department produced responsive records. The DEA produced
some responsive records right away, then produced others after
Machado successfully appealed its determination to OIP. The
FBI withheld responsive records. OIP withheld some records
as non-responsive, and it produced other records with
redactions based on the deliberative-process privilege.
Machado then submitted a third set of FOIA requests to
the DEA and FBI. These requests sought “all records,
including emails” about Machado. J.A. 129, 241. In response,
the DEA informed Machado that its search had located no
responsive records and that he was entitled to appeal to OIP.
Machado never appealed. DEA also offered to conduct another
search if Machado provided additional search terms. Machado
4
did so, but DEA still was unable to locate any responsive
records. The FBI similarly informed Machado that its search
had produced no responsive records and that he was entitled to
appeal to OIP. Machado never appealed. The FBI also offered
to conduct an additional search if Machado provided more
information. But in response to an e-mail from Machado’s
attorney, the FBI clarified that Machado would have to submit
additional information through a separate FOIA request, which
he did not do.
Machado filed a lawsuit challenging the various agency
responses, and the district court granted summary judgment to
the agencies. Machado Amadis v. DOJ, 388 F. Supp. 3d 1
(D.D.C. 2019).
Machado urges reversal on three grounds. First, he argues
that the State Department and DEA failed to conduct adequate
searches in response to the second set of FOIA requests.
Second, he contends that OIP searched too narrowly and
redacted its production too broadly. Third, he argues that the
DEA and FBI failed to issue timely determinations on his third
set of FOIA requests, making it unnecessary for him to exhaust
administrative appeals. We review the district court’s decision
de novo, Steinberg v. DOJ, 23 F.3d 548, 551 (D.C. Cir. 1994),
and now affirm.
II
Machado contends that the State Department and DEA
conducted inadequate searches in response to his second set of
FOIA requests. To prevail on this issue, each agency must
show that it “conducted a search reasonably calculated to
uncover all relevant documents.” Weisberg v. DOJ, 745 F.2d
1476, 1485 (D.C. Cir. 1984) (cleaned up); see DiBacco v. U.S.
Army, 795 F.3d 178, 191 (D.C. Cir. 2015). Agencies can
satisfy this burden through 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.” Oglesby v. U.S. Dep’t
of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990). We accord such
affidavits “a presumption of good faith, which cannot be
rebutted by purely speculative claims about the existence and
discoverability of other documents.” SafeCard Servs., Inc. v.
SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (quotation marks
omitted).
A
From the State Department, Machado sought records
“memorializing or describing the processing of his previous
FOIA Request No. F-2016-10536.” J.A. 81. The request asked
the agency to “exclude any correspondence exchanged with
any attorney” representing Machado. Id. The agency searched
for records containing the FOIA request number in its FOIA
database and in the e-mail account of the analyst who had
processed the previous request. Machado has no quarrel with
where the agency searched. But he objects that the search term,
keyed to the prior request number, was unreasonably narrow.
We disagree.
The search term was reasonably calculated to find all
responsive records. An affidavit from the Director of the State
Department’s Office of Information Programs and Services
explained why: The agency used the FOIA request number
“because [its] records are organized by request number.” J.A.
57. It was surely reasonable for the agency to conduct a search
that tracked how its own records are organized, just as it surely
would be reasonable for our clerk to search by a docket number
to locate all court records from a particular case.
Machado hypothesizes that incoming correspondence may
not have contained the FOIA request number, even if the
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agency consistently used it for internal and outgoing
correspondence. As an illustration, Machado notes that the
search would not have captured e-mails sent by his attorney to
the agency. But Machado specifically asked the agency not to
produce e-mails from his attorney, and it is hard to imagine that
e-mails from anyone else would bear on how the agency had
processed his prior FOIA request. Furthermore, when the
agency responded to Machado’s attorney, it inserted the FOIA
request number into the e-mail’s subject line. J.A. 75. The
search thus did capture both the response and the initial e-mail,
which was appended to the response. This bolsters the
agency’s statement that it consistently uses FOIA request
numbers to track associated documents and correspondence.
The State Department’s search was reasonable.
B
From the DEA, Machado also sought records
“memorializing or describing the processing of his previous
FOIA Request.” J.A. 112. In response, the agency searched a
database called the DEA Freedom of Information/Privacy Act
Record System, JUSTICE-004 and located materials
associated with the prior request. The DEA initially produced
twelve pages, then produced five additional pages on remand
from an OIP appeal. Machado contends that the DEA also
should have searched individual e-mail accounts.
The DEA’s search was reasonably calculated to find all
responsive records. In an affidavit, the DEA’s Chief FOIA
Officer explained that “all responsive information was
reasonably likely to be found” in the JUSTICE-004 database.
J.A. 100. This makes sense, for the database “consists of
records created or compiled in response to FOIA … requests
and administrative appeals, including: The original requests
and administrative appeals; responses to such requests and
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administrative appeals; [and] all related memoranda,
correspondence, notes, and other related or supporting
documentation.” Privacy Act of 1974; System of Records, 77
Fed. Reg. 26,580, 26,581 (May 4, 2012). That description
appears in the Federal Register, the contents of which “shall be
judicially noticed.” 44 U.S.C. § 1507. Given the breadth of
the JUSTICE-004 database, which includes all FOIA
“correspondence,” we conclude that the DEA’s search was
reasonably calculated to locate all responsive records.
III
Machado sought from OIP records “memorializing or
describing the processing of his previous FOIA Appeal[s].”
J.A. 280. OIP conducted searches, identified responsive
records, and produced them with redactions. Machado
contends that OIP interpreted his request too narrowly and
redacted the records too broadly.
A
In responding to Machado’s request, OIP located its files
on his previous appeals. The files contained OIP documents
assessing the appeals, as well as DEA and FBI documents
created before the appeals were filed. OIP concluded that the
request did not cover the latter set of documents. We agree.
Agencies must read FOIA requests “as drafted.” Miller v.
Casey, 730 F.2d 773, 777 (D.C. Cir. 1984). Here, Machado
sought from OIP only records “memorializing or describing the
processing” of his prior FOIA appeals. In ordinary usage, this
phrase does not encompass records created by other agencies
before the appeals were taken. Machado responds that the
DEA and FBI documents were contained in OIP’s appeal files.
True enough, but Machado’s request did not seek OIP’s entire
8
case files. OIP properly construed Machado’s FOIA request to
exclude the underlying source documents.
B
Machado next argues that OIP improperly redacted
portions of the records that it did produce. To withhold a
responsive record, an agency must show both that the record
falls within a FOIA exemption, 5 U.S.C. § 552(b), and that the
agency “reasonably foresees that disclosure would harm an
interest protected by [the] exemption,” id. § 552(a)(8)(A)(i)(I).
Here, OIP cleared both hurdles.
The records at issue are called “Blitz Forms,” which OIP
uses to adjudicate FOIA appeals. Line attorneys fill out the
forms to identify issues presented in an appeal, to analyze those
issues, and to make recommendations to senior attorneys. In
turn, senior attorneys review the Blitz Form for an appeal
before finally adjudicating it. In this case, OIP produced the
Blitz Forms for Machado’s prior appeals, but it redacted the
fields for recommendations, discussion, and search notes.
OIP redacted the Blitz Forms under the deliberative-
process privilege incorporated into Exemption 5 of FOIA.
Exemption 5 permits agencies to withhold “intra-agency
memorandums or letters that would not be available by law to
a party other than an agency in litigation with the agency.” 5
U.S.C. § 552(b)(5). The exemption thus covers “documents
which a private party could not discover in litigation with the
agency,” NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 148
(1975), including documents protected by the deliberative-
process privilege, Dep’t of Interior v. Klamath Water Users
Protective Ass’n, 532 U.S. 1, 8 (2001). To fall within the
privilege, a document must be predecisional and deliberative.
“Documents are predecisional if they are generated before the
adoption of an agency policy, and deliberative if they reflect
9
the give-and-take of the consultative process.” Judicial Watch,
Inc. v. U.S. Dep’t of Def., 847 F.3d 735, 739 (D.C. Cir. 2017)
(cleaned up).
The redacted portions of the Blitz Forms are both
predecisional and deliberative. As explained in OIP’s affidavit,
they were created before OIP decided the appeals, and they
reflect “line attorneys’ evaluations, recommendations,
discussions, and analysis which are prepared for senior-level
review and decisionmaking.” J.A. 272. Such
recommendations from subordinates to superiors lie at the core
of the deliberative-process privilege. See Klamath Water, 532
U.S. at 8–9.
Machado argues that the Blitz Forms in this case were
effectively final decisions because fields provided for reviewer
comments and attorney follow-up remained blank. But a
recommendation does not lose its predecisional or deliberative
character simply because a final decisionmaker later follows or
rejects it without comment. To the contrary, the Supreme
Court has held that the deliberative-process privilege protects
recommendations that are approved or disapproved without
explanation. Renegotiation Bd. v. Grumman Aircraft Eng’g
Corp., 421 U.S. 168, 185 (1975).
OIP also reasonably foresaw that disclosure would harm
an interest protected by the deliberative-process privilege.
The privilege protects “debate and candid consideration of
alternatives within an agency,” thus improving agency
decisionmaking. Jordan v. DOJ, 591 F.2d 753, 772 (D.C. Cir.
1978) (en banc). After all, “experience teaches that those who
expect public dissemination of their remarks may well temper
candor with a concern for appearances … to the detriment of
the decisionmaking process.” Sears, Roebuck & Co., 421 U.S.
at 150–51 (quotation marks omitted); see also Klamath Water,
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532 U.S. at 8–9 (deliberative-process privilege “rests on the
obvious realization that officials will not communicate
candidly among themselves if each remark is a potential item
of discovery”). OIP’s affidavit adequately explained that full
disclosure of the Blitz Forms would discourage line attorneys
from “candidly discuss[ing] their ideas, strategies, and
recommendations,” thus impairing “the forthright internal
discussions necessary for efficient and proper adjudication of
administrative appeals.” J.A. 272. Such chilling of candid
advice is exactly what the privilege seeks to prevent.
Machado contends that agencies, to justify withholding
records under FOIA’s foreseeable-harm provision, cannot
simply rely on “generalized” assertions that disclosure “could”
chill deliberations. Appellant’s Br. 31–32 (quotation marks
omitted). We have no quarrel with that proposition. But here,
OIP specifically focused on “the information at issue” in the
Blitz Forms under review, and it concluded that disclosure of
that information “would” chill future internal discussions. J.A.
272. The agency correctly understood the governing legal
requirement and reasonably explained why it was met here.
OIP permissibly withheld the privileged information.
C
FOIA provides that “[a]ny reasonably segregable portion
of a record shall be provided to any person requesting such
record after deletion of the portions which are exempt.”
5 U.S.C. § 552(b). We have held that district courts cannot
approve withholding exempt documents “without making an
express finding on segregability.” Morley v. CIA, 508 F.3d
1108, 1123 (D.C. Cir. 2007) (quotation marks omitted).
Machado contends that the district court here did not
address segregability, which necessitates a remand. But the
court did not approve the withholding of entire documents
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merely because portions of them were exempt from disclosure.
To the contrary, it held that “[t]he deliberative process privilege
attaches to the portions of the Blitz Forms” that OIP sought to
withhold, and it had no occasion to address other portions of
the forms, which OIP had already produced. Machado Amadis,
388 F. Supp. 3d at 19. Under these circumstances, we are
unsure what further analysis Machado would have the district
court conduct.
In any event, if a district court has not adequately
addressed segregability, we may do so in the first instance.
Juarez v. DOJ, 518 F.3d 54, 60 (D.C. Cir. 2008). Here, we
readily conclude that OIP appropriately segregated exempt and
non-exempt portions of the Blitz Forms. In deciding what
portion of the Blitz Forms to withhold, OIP conducted a “line-
by-line review,” determined that “some non-exempt, factual
information within them could be segregated for release,” and
redacted only “pre-decisional, deliberative notes made by line
attorneys during the course of adjudicating administrative
appeals.” J.A. 273. This ensured that the redactions were no
broader than necessary to protect materials covered by the
deliberative-process privilege.
IV
For his third set of FOIA requests, Machado contends that
the DEA and FBI failed to issue timely determinations, which
made it unnecessary for him to exhaust administrative appeals.
“As a general matter, a FOIA requester must exhaust
administrative appeal remedies before seeking judicial
redress.” CREW v. FEC, 711 F.3d 180, 182 (D.C. Cir. 2013).
Exhaustion is required “so that the agency has an opportunity
to exercise its discretion and expertise on the matter and to
make a factual record to support its decision.” Hidalgo v. FBI,
344 F.3d 1256, 1258 (D.C. Cir. 2003). Nonetheless, a
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requester is “deemed to have exhausted his administrative
remedies” if the agency fails to comply with applicable
statutory time limits. 5 U.S.C. § 552(a)(6)(C)(i). One of them
requires the agency, within 20 business days after receiving a
request, to “determine ... whether to comply” and to notify the
requester of “such determination and the reasons therefor.” Id.
§ 552(a)(6)(A)(i). In the case of an adverse determination, the
agency also must inform the requester of his right to take an
administrative appeal. Id.
Machado submitted his third set of FOIA requests on May
17, 2017. It is undisputed that the DEA and FBI responded
within 20 business days, and Machado did not appeal either
response to OIP. But, Machado contends, neither agency
response was a “determination” within the meaning of FOIA,
so he did not have to appeal.
To make a proper FOIA determination, an agency must:
“(i) gather and review the documents; (ii) determine and
communicate the scope of the documents it intends to produce
and withhold, and the reasons for withholding any documents;
and (iii) inform the requester that it can appeal whatever
portion of the ‘determination’ is adverse.” CREW, 711 F.3d at
188. The DEA and FBI response letters satisfied these
requirements. The DEA stated that it had “conducted a search
for responsive records” but found none, and it informed
Machado that he could “administratively appeal” to OIP. J.A.
132–33. Likewise, the FBI stated that it had “conducted a
search of the Central Records System” but was “unable to
identify main file records responsive” to the request, and it
informed Machado that he could “file an appeal” to OIP. J.A.
254–55. Each response satisfied the statute.
The agencies also offered to conduct further searches if
Machado provided more information. The DEA offered: “If
13
you provide additional search criteria, we will initiate a second
search for any DEA records pertaining to [Machado].” J.A.
133. The DEA said it would close the case file if Machado did
not provide further information. Id. The FBI made a similar
offer: “If you have additional information pertaining to the
subject that you believe was of investigative interest to the
Bureau, please provide us with the details and we will conduct
an additional search.” J.A. 254. Machado contends that
because the agencies made these offers, their responses were
not actually FOIA determinations.
Machado is mistaken. By offering to conduct a “second”
search if he provided “further” information, or to conduct an
“additional” search if he provided “additional” information,
neither agency backed away from the finality of the adverse
determination already made—that a sufficient agency search
had yielded no responsive records. At most, the DEA and FBI
offered expedited processing of any follow-up request, even
though agencies generally may “make requesters refile (and go
to the end of the queue) when they want to alter the parameters
of their initial search request.” Rubman v. USCIS, 800 F.3d
381, 392 (7th Cir. 2015). Although the FBI later retracted its
offer to expedite, that does not undermine our conclusion that
its initial response constituted a FOIA determination. In sum,
offers to conduct additional searches are immaterial to whether
an agency has made a “determination” under FOIA. The DEA
and FBI responses were proper determinations under FOIA,
which triggered Machado’s obligation to exhaust his
administrative appeals.
Alternatively, Machado asks us to excuse his failure to
exhaust on policy grounds. As Machado sees things,
administrative appeals on his third set of FOIA requests would
have been futile because his prior appeals had proved
unsuccessful. That is not entirely accurate. On Machado’s
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second FOIA request, the DEA produced some records, then
produced others after Machado successfully appealed its
determination to OIP. Moreover, as even Machado concedes,
his third set of FOIA requests was in many respects broader
than his earlier ones and included more “specific leads for the
agencies to follow.” Appellant’s Br. 11. For these reasons, we
cannot conclude that OIP would have failed to give any appeals
their due consideration. Administrative appeals thus would
have furthered the “purposes and policies” of the exhaustion
requirement. See Wilbur v. CIA, 355 F.3d 675, 677 (D.C. Cir.
2004) (per curiam).
* * * *
The district court properly granted summary judgment to
the agencies.
Affirmed.