Broward Bulldog, Inc. v. U.S. Department of Justice

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-13787
________________________
D.C. Docket No. 0:16-cv-61289-CMA
BROWARD BULLDOG, INC.,
a Florida not-for-profit corporation,
DAN CHRISTENSEN,
founder, operator, and editor of the BrowardBulldog.com website,
Plaintiffs-Appellants
Cross Appellees,
versus
U.S. DEPARTMENT OF JUSTICE,
FEDERAL BUREAU OF INVESTIGATION,
Defendants-Appellees
Cross Appellants.
________________________
Appeals from the United States District Court
for the Southern District of Florida
________________________
(September 23, 2019)
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Before WILLIAM PRYOR, MARTIN, and JORDAN, Circuit Judges.
WILLIAM PRYOR, Circuit Judge:
This appeal involves two requests for documents under the Freedom of
Information Act, 5 U.S.C. § 552. In 2015, Broward Bulldog, Inc., a newspaper
published in Florida, requested that the Federal Bureau of Investigation disclose
documents reviewed by the 9/11 Review Commission. Broward Bulldog and its
founder, Dan Christensen, contend that the Bureau has concealed a connection
between the terrorists responsible for the attacks on September 11, 2001, and a
Saudi family that lived in Florida. In response, the government disclosed hundreds
of documents but redacted some information as falling within statutory
exemptions, id. § 552(b)(1)–(9). Broward Bulldog challenged several redactions
and argued that the Bureau failed to conduct an adequate search. In a thorough
opinion, the district court granted summary judgment in favor of the government
for most of the redactions, but ordered the government to disclose personal
information redacted under Exemptions 6 and 7(C), as well as confidential-source
information redacted under Exemption 7(D). Broward Bulldog and Christensen
raise several challenges to the redactions, and the government cross-appeals the
disclosures ordered by the district court. We conclude that, with the exception of
its rulings regarding redactions under Exemptions 7(C), 7(D), and 7(E), the district
court did not err. We affirm in part, reverse in part, and remand.
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I. BACKGROUND
For years, Dan Christensen, the founder of a newspaper named Broward
Bulldog, Inc., has doggedly maintained that a Saudi Arabian family that lived in
Sarasota, Florida, had “troubling ties” with the hijackers responsible for the
terrorist attacks on September 11, 2001. In 2011, Broward Bulldog published an
article that stated that members of the family “abruptly left their luxury home” two
weeks before the attacks, that they had contact with the hijackers, and that the
Federal Bureau of Investigation investigated the family but failed to report the
investigation to Congress. The Bureau immediately admitted in a press release that
it investigated the family, but it denied that it found any connection between the
family and the attacks.
Undeterred, in 2011 Broward Bulldog filed a request under the Freedom of
Information Act for “records regarding the investigation of the family,” and it sued
the Bureau and the Department of Justice to compel a response. The Bureau
disclosed many responsive documents, including a 2002 “Electronic
Communication” by a Bureau agent. The agent stated that “[f]urther investigation
of the . . . family revealed many connections between the [family] and individuals
associated with the terrorist attacks on 09/11/2001.” The district court in that
litigation recently issued an opinion resolving Broward Bulldog’s challenge,
although it has not entered a final judgment. See Broward Bulldog, Inc. v. U.S.
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Dep’t of Justice (Broward Bulldog I), No. 12-cv-61735-WJZ (S.D. Fla. Aug. 22,
2019).
A few years later, in 2014, Congress directed the Bureau to create a 9/11
Review Commission, also known as the Meese Commission, to review the
implementation of recommendations made by an earlier commission. The Meese
Commission reviewed the investigation of the Saudi family and concluded that
“[t]he allegations that the family was connected to the hijackers and/or the 9/11
plot were not substantiated” and that the press accounts “were based on inaccurate
information and a poorly written and innaccurate [sic] [electronic
communication].”
Broward Bulldog filed two more requests for information in 2015. One
request sought information reviewed by the Meese Commission, and the other
asked for specific documents associated with the Commission. In June 2016,
Broward Bulldog again sued the Bureau and the Department of Justice to compel a
response to its requests.
The Bureau produced many documents in response to the requests. It first
released 896 pages of records that it located in an “electronic storage site” for
Commission records. It then released a few additional documents that it had
mistakenly withheld, and it disclosed two names that it had previously redacted.
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Finally, in response to informal inquiries from Broward Bulldog, the Bureau
searched a few other locations and disclosed several other records.
While the Bureau performed these additional searches, the government
moved for summary judgment or moved to supplement a pending motion for
summary judgment three times. In support of its motions, the government
submitted a variety of public and sealed documents. It submitted public
declarations by David Hardy, the section chief of the Record/Information
Dissemination Section of the Records Management Division of the Bureau. It
submitted sealed ex parte charts called Vaughn indices, see Vaughn v. Rosen, 484
F.2d 820 (D.C. Cir. 1973), that linked blocks of redacted text to the justifications
for any exemptions asserted. And it submitted sealed copies of all the responsive
documents for in camera review.
Broward Bulldog sought to depose Jacqueline McGuire, the Bureau agent
who briefed the Commission, and the district court referred the matter to a
magistrate judge. Broward Bulldog sought to depose McGuire to determine “the
basis for her assertion that the . . . ‘many connections’ memo was wholly
unsubstantiated.” According to Broward Bulldog, if she admitted that she had no
basis for the assertion, then it could “establish the bad faith of the [Bureau],” and a
finding of bad faith would, in turn, support its argument that the Bureau is “now
asserting exemptions to disguise what [it] found, which was substantial Saudi
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support for the 9/11 attacks.” But Broward Bulldog agreed with the magistrate
judge that “to get discovery [it had] to show [the government’s] bad faith” in its
disclosure, and Broward Bulldog repeatedly asserted that it had established the
government’s bad faith.
The magistrate judge denied the motion. He explained that Broward Bulldog
had not established that the government acted in bad faith in its disclosures and
that Broward Bulldog was trying to prove that “the [Bureau] had bad faith in the
way [it] conducted th[e] underlying investigation, not whether or not the [Bureau]
ha[d] bad faith in classifying and disclosing documents.” And it stated that, in any
event, McGuire “would have no information in regards to . . . whether or not
something was properly exempted . . . or whether or not the [Bureau] did a proper
search, because . . . there’s no evidence that she was involved in that process at
all.”
In an objection to this order, Broward Bulldog argued that the magistrate
judge applied the wrong standard for proving the government’s bad faith. But the
district court ruled that Broward Bulldog invited this error when it “agreed with
[the magistrate judge that] the correct legal standard” to obtain discovery required
a showing of bad faith by the government in its responses to the requests for
documents. So it “decline[d] to review on appeal a discovery issue that was not
properly presented to [the magistrate judge].”
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The district court issued three orders to resolve a long list of merits disputes
about the adequacy of the search by the Bureau and the applicability of different
exemptions to different documents. It ruled that Hardy’s declarations established
that the Bureau conducted an adequate search. It explained that “the law only
requires [a] search be reasonable, not exhaustive” and that the declarations were
“sufficiently detailed and non-conclusory, describing every step the [Bureau] took
to identify responsive records.” It also explained that the “conclusory” accusations
by Broward Bulldog that the Bureau was “act[ing] in bad faith . . . [we]re
insufficient” to bar summary judgment for the government.
The district court approved several, but not all, of the redactions. It upheld
the redactions made under Exemptions 1 and 3, which protect, among other things,
national security information. See 5 U.S.C. §§ 552(b)(1), (b)(3). It reasoned that
“[w]hile the burden of proof is on the [g]overnment, a reviewing court must
recognize that the Executive departments responsible for national defense and
foreign policy matters have unique insights into what adverse [e]ffects . . . might
occur as a result of public disclosure of a particular classified record.” And it ruled
that the government had satisfied its burden under that standard. Although
Broward Bulldog never moved for summary judgment, the district court also
ordered the government to disclose all but two blocks of texts redacted under
Exemptions 6 and 7(C), which protect information that implicates personal privacy
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rights. See id. §§ 552(b)(6), (b)(7)(C). The district court largely upheld the
redactions of confidential-source information under Exemption 7(D), see id. §
552(b)(7)(D), though it ordered the government to disclose information in
document 27 that it had redacted under that exemption. It upheld all the redactions
made under Exemption 5, see id. § 552(b)(5), which protects the deliberative
processes of an agency. And although the district court initially ruled that the
government had to disclose some of the text that the Bureau redacted as disclosing
law-enforcement techniques and procedures, it later granted a motion for
reconsideration and upheld all the redactions made under Exemption 7(E). See id.
§ 552(b)(7)(E). Finally, the district court refused to “consider the records produced
in Broward Bulldog I,” even though some of those records could be responsive to
the requests at issue. It explained that considering the records “could potentially
result in inconsistent findings in the two actions.”
II. STANDARD OF REVIEW
“This [C]ourt reviews a district court’s grant of summary judgment in a . . .
case [under the Act] de novo, viewing all facts and reasonable inferences in the
light most favorable to the non-moving party.” Miccosukee Tribe of Indians of Fla.
v. United States, 516 F.3d 1235, 1243 (11th Cir. 2008).
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III. DISCUSSION
The Freedom of Information Act codified “a strong public policy in favor of
public access to information in the possession of federal agencies.” News-Press v.
U.S. Dep’t of Homeland Sec., 489 F.3d 1173, 1190 (11th Cir. 2007) (citation and
internal quotation marks omitted). The Act requires that “each [federal] agency,
upon any request for records which (i) reasonably describes such records 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). After an agency receives a
request for records, it may withhold information from responsive documents only
if it falls within one of nine statutory exemptions. See Milner v. Dep’t of Navy, 562
U.S. 562, 565 (2011). Because “[t]he purpose of [the Act] is to encourage public
disclosure of information,” responsive documents “are presumed to be subject to
disclosure unless [an agency] affirmatively establishes that the requested records
fall into one of [the] exemptions.” Office of Capital Collateral Counsel v. Dep’t of
Justice, 331 F.3d 799, 802 (11th Cir. 2003). But the Act also “expressly recognizes
that important interests are served by its exemptions, and those exemptions are as
much a part of [the Act’s] purposes and policies as [its] disclosure requirement.”
Food Mktg. Inst. v. Argus Leader Media, 139 S. Ct. 2356, 2366 (2019) (alterations,
adopted) (internal quotation marks omitted).
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Our review consists of three parts. At the outset, we review whether the
agency established “beyond a material doubt” that it “conducted a search
reasonably calculated to uncover all relevant documents.” Miccosukee Tribe, 516
F.3d at 1248 (quoting Ray v. U.S. Dep’t of Justice, 908 F.2d 1549, 1558 (11th Cir.
1990), rev’d on other grounds 502 U.S. 164 (1991)). We next determine “whether
the district court had an adequate factual basis for the decision rendered,” and then
determine whether the district court erred when it ruled on the applicability of each
exemption. Id. at 1258.
We divide our discussion in six parts. First, we explain that the Bureau
established that it performed an adequate search. Second, we explain that the
district court had an adequate factual basis to render a decision. Third, we explain
that Broward Bulldog has abandoned its challenge of the denial of its request to
depose Agent McGuire. Fourth, we explain that the district court did not err in
most of its rulings on the applicable exemptions. Fifth, we explain that the district
court did not err when it failed to make express findings of segregability. Sixth, we
explain that the district court did not err when it refused to entertain a request for
documents that were already the subject of a separate, nearly identical lawsuit.
A. The Bureau Established that It Performed an Adequate Search.
To establish the adequacy of a search for responsive documents, a
government agency “must show beyond a material doubt . . . that it has conducted
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a search reasonably calculated to uncover all relevant documents.” Id. at 1248
(alteration in original) (citation and internal quotation marks omitted). The agency
“may meet this burden by producing affidavits of responsible officials ‘so long as
the affidavits are relatively detailed, nonconclusory, and submitted in good faith.’”
Ray, 908 F.2d at 1558 (quoting Miller v. U.S. Dep’t of State, 779 F.2d 1378, 1383
(8th Cir. 1985)). If the agency satisfies this burden, “then the burden shifts to the
requester to rebut the agency’s evidence by showing that the search was not
reasonable or was not conducted in good faith.” Id.; see also Karantsalis v. U.S.
Dep’t of Justice, 635 F.3d 497, 500–01 (11th Cir. 2011).
Because “[t]he standard is one of reasonableness,” the Act “does not require
an agency to exhaust all files which conceivably could contain relevant
information.” Ray, 908 F.2d at 1558–59. So a requester cannot rebut a showing of
an adequate search by arguing that he received only a subset of the documents that
he thought existed. See id. at 1559 (“The plaintiffs’ emphasis o[n] a particular
reference to 582 interviews, while they received information regarding only 384
interviews, is not enough to rebut the government’s showing of an adequate
search.”). The agency “is not required . . . to account for documents which the
requester has in some way identified if it has made a diligent search for those
documents in the places in which they might be expected to be found.” Id. (quoting
Miller, 779 F.2d at 1385) (“[I]t is not necessary to create a document that does not
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exist in order to satisfy a . . . request[er].” (internal quotation marks omitted)). And
the “late production” of documents does not necessarily create an “adverse”
inference. Miccosukee Tribe, 516 F.3d at 1257. Instead, we must “evaluate the
reasoning behind the delay” to determine “what inference, if any, can be or should
be drawn.” Id.The Bureau satisfied its burden by submitting declarations that were
“relatively detailed, nonconclusory, and submitted in good faith.” Ray, 908 F.2d at
1558 (quoting Miller, 779 F.2d at 1383). Hardy, the section chief of the
Record/Information Dissemination Section of the Records Management Division
of the Bureau, attested in his fifth declaration that employees of his Section
reasonably believed that all responsive documents would be located in an
“electronic storage site” associated with the Office of the Director. He explained
that employees of the Section contacted the Office and declined to search the
central records system, which houses investigative information, because Broward
Bulldog “sought specific documents relating to the 9/11 Commission Report, and
not investigative records.” Section employees provided a copy of the request to
two Office employees who served as liaisons to the Commission; the two
employees provided the Section employees with access to the “electronic storage
site” for the Commission; and they did not direct the Section employees to look
elsewhere because they “believed this electronic storage [site] contained all the
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9[/]11-Commission records [Broward Bulldog was] seeking.” The Section
employees then performed a “document-by-document search of all records on the
site” and identified over 800 pages of responsive records. They did not identify any
“leads to other locations where responsive records may have been maintained,” so
they “concluded that additional searches were not warranted.”
In response to inquiries from Broward Bulldog about specific missing
documents, the employees again corresponded with the Office employees. The
Office employees informed the Section employees, for the first time, of an
electronic file associated with the Commission and stored on the central records
system. The Office employees told the Section employees that they failed to
disclose this file earlier because they “believed all the information sought . . . was
housed in the electronic storage site.” The Section employees then performed a
“document by document search of all [of the] contents” of the electronic file. All of
the responsive documents were duplicates of the Commission records previously
found on the storage site maintained by the Office. During their correspondence
with the Section employees, the two Office employees also “mentioned the
existence at some point of additional records they believed to be destroyed”
because the documents were sent to the Records Storage and Maintenance Unit,
which was expected to maintain the documents for a year before destroying them.
The Section employees retrieved the documents, which had not yet been destroyed,
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performed a “document-by-document search,” and processed the responsive
documents for release.
Broward Bulldog argues that Hardy’s declaration failed to describe an
adequate search. It points out that Hardy failed to identify “the search terms the
[Bureau] used.” But Hardy did not identify any search terms because the Section
employees performed a “document-by-document search” of the electronic storage
site, the electronic file located on the central records system, and the Commission
documents sent to the Records Storage and Maintenance Unit. And contrary to the
argument of Broward Bulldog, Hardy’s declaration explained the basis for the
conclusion that responsive documents would not be located on the central records
system and why the Section employees relied on the Office employees to guide
their search. It was reasonable to decide not to search the central records system
because that system is indexed by “subjects of investigative interest,” and Broward
Bulldog sought the working papers of the Commission—which are not
investigative records. It made sense to rely instead on the personal knowledge of
two Office employees who served as liaisons to the Commission to identify where
responsive documents would be. Indeed, the file the Section employees ultimately
located on the central records system contained only duplicates of the records
found on the storage site the Office employees initially identified.
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Broward Bulldog stresses that the Bureau did not identify the persons in the
Director’s Office who searched for documents, but this omission is irrelevant.
After all, the Office employees performed no search. They instead identified the
locations that the Section employees searched. In any event, Hardy explained that
the Office employees were “liaisons to the Commission, who were directly
involved with” the work of the Commission. And there is “no general requirement
for an agency to disclose the identity and background of the actual persons who
process [Freedom of Information Act] requests.” Maynard v. Cent. Intelligence
Agency, 986 F.2d 547, 563 (1st Cir. 1993).
Broward Bulldog has failed to rebut the Bureau’s evidence that it conducted
an adequate search. It argues that the “failure [of the Bureau] to respond to [its]
requests in a timely fashion raised doubts in the context of this case,” and it
contends that the “sole” explanation for the delay “was that ‘unusual
circumstances’ prevented a timely production of records.” To be sure, the late
production of documents may support an “adverse” inference if the agency fails to
produce a reasonable explanation for the delay. See Miccosukee Tribe, 516 F.3d at
1257. But no adverse inference is warranted here. The district court explained that
the Bureau was initially delayed in processing the request “due to an
overwhelming[ly] large backlog of pending . . . requests and litigation” under the
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Act. And the government’s failure to meet the statutory deadlines does not support
an inference that it was acting nefariously, in any event.
Broward Bulldog complains that the Bureau released “piecemeal” batches of
documents “on the eve of important deadlines, like the deadlines for summary
judgment motions and trial,” but as the district court explained, Broward Bulldog
has offered nothing beyond speculation to support its assertion that the Bureau
sought “strategic advantage” by manipulating when it produced responsive
documents. Although the Bureau did not “exhaust all files which conceivably
could contain relevant information” when it first responded to the request, Ray,
908 F.2d at 1558–59, it did not have to do so. The initial search, together with the
continued efforts of the Bureau to provide responsive documents, satisfied the
burden to “conduct[] a search reasonably calculated to uncover all relevant
documents.” Id. at 1558 (citation and internal quotation marks omitted); see also
Miccosukee Tribe, 516 F.3d at 1256–57 (refusing to draw an “adverse” inference
even though “some de minim[i]s number of documents were overlooked in the
initial . . . search”). And we agree with the government that if we were to hold that
a later production of documents means that any initial search was inadequate, we
would effectively tell agencies not to perform any additional searches in response
to further inquiries.
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Broward Bulldog also argues that the Bureau failed to produce certain
documents, like transcripts of Commission interviews, but there is no evidence that
these documents exist in the first place. The Bureau “is not required . . . to account
for documents which the requester has in some way identified if it has made a
diligent search for those documents in the places in which they might be expected
to be found.” Ray, 908 F.2d at 1559 (quoting Miller, 779 F.2d at 1385). The
Bureau pursued all the leads it had, Broward Bulldog identified no other locations
for the Bureau to search, and Broward Bulldog offered no persuasive evidence that
the alleged documents even exist.
The amici newspapers argue that Broward Bulldog was “precluded” from
identifying missing documents because the government filed its first motion for
summary judgment before the Bureau completed its search, but in its briefs before
this Court, filed well after the Bureau completed its search, Broward Bulldog
offers no evidence that the transcripts exist. Broward Bulldog points only to the
Federal Advisory Committee Act, 5 U.S.C. app. 2, § 11(a), which it argues
requires agencies to make transcripts of advisory committee meetings available to
the public. Even assuming this law applies to the Commission, it would, at most,
prove that the Commission should have kept transcripts of its meetings, but we fail
to see how it proves that the transcripts Broward Bulldog seeks actually exist.
Mere speculation is not enough to rebut the showing by the Bureau. See Ray, 908
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F.2d at 1559 (“[I]t is not necessary to create a document that does not exist in order
to satisfy a . . . request[er].” (citation and internal quotation marks omitted)).
B. The District Court Had an Adequate Factual Basis to Render a Decision.
Broward Bulldog argues that the government failed to offer detailed
declarations to satisfy its burden to justify the exemptions it asserted. And it adds
that the district court failed to create a robust public record. We disagree.
We review whether the district court “had an adequate factual basis for the
decision rendered.” Miccosukee Tribe, 516 F.3d at 1258. We have held that an
adequate factual basis can “be provided through a singular method—such as
affidavits, a Vaughn Index, or an in camera review, or a combination of these
methods.” Id. at 1259. When a district court relies on declarations or Vaughn
indices, these documents are adequate if they supply “relatively detailed
justification[s], specifically identifying the reasons why a particular exemption is
relevant and correlating those claims with [a] particular part of a withheld
document.” Id. at 1258 (citation and internal quotation marks omitted).
We have also held that a district court has the discretion to conduct an in
camera review of the documents to determine whether the exemptions apply. Id.But we have added that, because in camera review “undercuts the traditional
adversarial theory of judicial dispute resolution,” Currie v. Internal Rev. Serv., 704
F.2d 523, 530 (11th Cir. 1983) (quoting Mead Data Ctr., Inc. v. U.S. Dep’t of the
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Air Force, 566 F.2d 242, 250 (D.C. Cir. 1977)), a district court “should attempt to
create as complete a public record as is possible” before it resorts to in camera
review, Ely v. Fed. Bureau of Investigation, 781 F.2d 1487, 1493 (11th Cir. 1986)
(quoting Phillippi v. Cent. Intelligence Agency, 546 F.2d 1009, 1013 (D.C. Cir.
1976)). And in camera review should be used “in only the rare case such as
. . . where the disputed documents are relatively brief, few in number, and where
there are few claimed exemptions.” Currie, 704 F.2d at 531.
The district court rendered its decision after reviewing several declarations
and three sealed Vaughn indices and after conducting an in camera review of the
documents. The declarations and Vaughn indices provided “relatively detailed
justification[s], specifically identifying the reasons why a particular exemption
[wa]s relevant and correlating those claims with [a] particular part of a withheld
document.” Miccosukee Tribe, 516 F.3d at 1258. For example, the Bureau explains
that it redacted text in document 2 under Exemption 5 because it revealed
“preliminary recommendations on [Bureau] policies that have not been
implemented.” And the redacted text—two sentences under the heading
“Gaps/Possible Issues/Recommendations”—contains a specific preliminary
recommendation about how the Bureau should conduct future interviews.
Similarly, the government explains that it redacted text from document 5 under the
attorney-work-product privilege codified in Exemption 5 because the text revealed
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“attorneys’ strategies and assessments in anticipation of litigation,” including “the
thoughts, strategies, and opinions of [Civil] Division attorneys handling the
[relevant] matters.” The redacted text concerns specific plans that Department of
Justice attorneys had about several civil cases. These examples highlight how,
throughout its Vaughn indices and the supporting declarations, the government
disclosed “as much information in the withheld documents as possible without
waiving the privilege.” Miccosukee Tribe, 516 F.3d at 1261 (internal quotation
marks omitted). And “it is fair to say that both [Broward Bulldog] and the district
court were able to understand why each document or portion of a document was
withheld as exempt from disclosure, even without the in camera review,” and that
these documents provided an adequate basis for the decision rendered. Id.Broward Bulldog argues that the justifications offered by the government
were inadequate because they contained “boilerplate language,” but we have never
suggested that an agency may not use similar language to justify withholding
information in multiple documents. After all, “[t]here are only so many ways” an
agency can claim the same exemption for related documents. Judicial Watch, Inc.
v. Food & Drug Admin., 449 F.3d 141, 147 (D.C. Cir. 2006) (“No rule of law
precludes [an agency] from treating common documents commonly.”). As the
District of Columbia Circuit explained in Larson v. Department of State, “an
agency’s response must logically fit the particular facts and circumstances of the
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case . . . but the fact that similar exemption explanations . . . suit similar cases . . .
is not a cause for further judicial inquiry.” 565 F.3d 857, 868 (D.C. Cir. 2009).
In addition, in camera review ensured that the district court had an adequate
factual basis to render a decision. It is “rare” for the government to provide Vaughn
indices, declarations, and the relevant documents for in camera review.
Miccosukee Tribe, 516 F.3d at 1259. But the government provided all three,
including sealed Vaughn indices that provide more specific explanations than those
that are in its public submissions. And in Currie, we were satisfied that the district
court had a sufficient factual basis when the government submitted allegedly
“conclusory affidavits” as well as the disputed documents for in camera review.
704 F.2d at 530. So the district court had a “more than an adequate basis for
determining the propriety of the exemption[s]” asserted here. Miccosukee Tribe,
516 F.3d at 1261.
On a final note, Broward Bulldog suggests that we must determine whether
the government made redactions in bad faith, but we disagree. Broward Bulldog
cites no decision that supports its proposal to require agencies to meet a
requirement of good faith before asserting a statutory exemption that would
otherwise apply. When reviewing courts consider good faith, they do so to
determine only whether to credit agency affidavits detailing the reasons why an
exemption applies or why a search was adequate. See, e.g., Judicial Watch, Inc. v.
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U.S. Secret Serv., 726 F.3d 208, 215 (D.C. Cir. 2013) (“[S]ummary judgment may
be granted on the basis of agency affidavits if they contain reasonable specificity of
detail rather than merely conclusory statements, and if they are not called into
question by contradictory evidence in the record or by evidence of agency bad
faith.” (citation and internal quotation marks omitted)). They do not refuse to apply
an otherwise applicable exemption because the agency may not have been
motivated solely by whatever purpose motivated Congress to create the exemption.
See, e.g., Rimmer v. Holder, 700 F.3d 246, 258 n.5 (6th Cir. 2012) (explaining that
the “discussion of agency bad faith [in another decision] was brought up in the
context of whether the agency should be required to submit its records to the
district court for an in camera review, and had nothing to do with the actual
applicability of . . . exemptions” (citation omitted)).
C. Broward Bulldog Has Abandoned Its Challenge Related to Its Request to
Depose Agent McGuire.
Broward Bulldog argues that the district court erred in denying its request to
depose McGuire, the Bureau agent who briefed the Commission on the Sarasota
investigation, but it has failed to challenge the determination by the district court
that the alleged error was invited. The district court explained that Broward
Bulldog could not argue that the magistrate judge erred when he required it to
prove the government’s bad faith in its disclosures to depose McGuire because
Broward Bulldog had “agreed with [the magistrate judge that that was] the correct
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legal standard.” And the district court “declin[ed] to review on appeal a discovery
issue that was not properly presented to [the magistrate judge].” To obtain a
reversal of that ruling, Broward Bulldog “must convince us that every stated
ground for the [ruling] against [it] is incorrect.” Sapuppo v. Allstate Floridian Ins.
Co., 739 F.3d 678, 680 (11th Cir. 2014). Because Broward Bulldog has failed to
challenge the determination that the invited-error doctrine applies, Broward
Bulldog has “abandoned any challenge of that ground, and it follows that the
[ruling] is due to be affirmed.” Id.D. The District Court Erred in Only Some of Its Rulings on the Applicable
Exemptions.
We divide our discussion of the rulings on the applicable exemptions in five
parts. First, we conclude that the district court applied the correct standard of
review when it ruled on the redactions made under Exemptions 1 and 3. Second,
we explain that the district court misunderstood Exemption 7(C) and erred when it
refused to apply the exemption to redactions made in 17 documents. Third, we
explain that the district court erred when it applied Exemption 7(D) to redactions
made in documents 2 and 27. Fourth, we explain that, with two exceptions, the
district court committed no error in applying Exemption 7(E) to documents 2 and
22. Fifth, we explain that the district court did not err in upholding redactions
under Exemption 5 to documents 2, 5, and 22.
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1. Exemptions 1 and 3 (Executive-Order and Statutory Exemptions).
Exemptions 1 and 3 permit the government to withhold information that, if
disclosed, would compromise national security. Exemption 1 permits the
government to withhold information that is “specifically authorized under criteria
established by an Executive order to be kept secret in the interest of national
defense or foreign policy” and that is “properly classified pursuant to [that]
Executive order.” 5 U.S.C. § 552(b)(1). The relevant order, Executive Order
13526, provides that information may be classified if it “pertains” to “intelligence
activities (including covert action), intelligence sources or methods, or
cryptology.” Exec. Order No. 13526, 75 Fed. Reg. 707 (Dec. 29, 2009). Exemption
3 permits the government to withhold information “specifically exempted from
disclosure by statute,” if the statute “requires that the matters be withheld from the
public in such a manner as to leave no discretion on the issue” or “establishes
particular criteria for withholding or refers to particular types of matters to be
withheld.” 5 U.S.C. § 552(b)(3). And the National Security Act of 1947 directs the
Director of National Intelligence to “protect intelligence sources and methods from
unauthorized disclosure.” 50 U.S.C. § 3024(i)(1); see Cent. Intelligence Agency v.
Sims, 471 U.S. 159, 167–68 (1985).
The district court accorded “substantial weight” to the explanations provided
by the government for the redactions made under the two exemptions, and it
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determined that both exemptions apply to the material redacted from documents 3
and 5. It explained that, “[b]ecause of the possible strong implications for national
security, courts should defer to an agency’s decision to withhold information under
Exemptions 1 and 3.” So “[w]hile the burden of proof is on the [g]overnment, a
reviewing court must recognize that the Executive departments responsible for
national defense and foreign policy matters have unique insights into what adverse
[e]ffects . . . might occur as a result of public disclosures of a particular classified
record.” It then concluded, “[a]fter conducting a detailed review of the redactions,
in conjunction with the Hardy Declaration,” that the Bureau “provided ample
evidence [that] the redacted material is exempt from disclosure under Exemptions
1 and 3 because of national security concerns.”
Broward Bulldog argues that the district court applied the wrong standard of
review because it deferred to the Bureau. It contends that the Act requires de novo
review, 5 U.S.C. § 552(a)(4)(B), which bars the district court from giving
deference to the Bureau for Exemptions 1 and 3. We disagree.
The Supreme Court has explained that agency decisions to protect
information governed by the National Security Act under Exemption 3 “are worthy
of great deference given the magnitude of the national security interests and
potential risks at stake.” Sims, 471 U.S. at 179. And our sister circuits have
respected that admonition. See, e.g., Am. Civil Liberties Union v. U.S. Dep’t of
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Def., 628 F.3d 612, 619 (D.C. Cir. 2011) (“Because courts lack the expertise
necessary to second-guess . . . agency opinions in the typical national security . . .
case [under the Act], [they] must accord substantial weight to an agency’s affidavit
concerning the details of the classified status of the disputed record.” (citation and
internal quotation marks omitted)); Maynard, 986 F.2d at 555 (holding for the First
Circuit that “court[s] must accord substantial weight and due consideration to the
[Central Intelligence Agency’s] affidavits” under Exemption 3) (citation and
internal quotation marks omitted). Under Sims, the district court owed substantial
deference to the Bureau’s invocation of Exemption 3 even though the Bureau still
bore the burden of proving the applicability of that exemption.
Broward Bulldog’s challenge to Exemption 1 deference fares no better. Our
sister circuits have long understood Exemption 1 to require them to “accord
substantial weight to an agency’s affidavit concerning the details of the classified
status of [a] disputed record.” Maynard, 986 F.2d at 555 n.7; accord Jones v. Fed.
Bureau of Investigation, 41 F.3d 238, 244 (6th Cir. 1994); Krikorian v. Dep’t of
State, 984 F.2d 461, 464 (D.C. Cir. 1993); McDonnell v. United States, 4 F.3d
1227, 1244 (3d Cir. 1993); Wiener v. Fed. Bureau of Investigation, 943 F.2d 972,
980 (9th Cir. 1991); Stein v. Dep’t of Justice, 662 F.2d 1245, 1255 (7th Cir. 1981).
Congress ratified this understanding in 1996 when it amended the Act to include
the following language: “In addition to any other matters to which a court accords
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substantial weight, a court shall accord substantial weight to an affidavit of an
agency concerning the agency’s determination as to technical feasibility under
paragraph (2)(C) and subsection (b) and reproducibility under paragraph (3)(B).”
Electronic Freedom of Information Act Amendments, Pub. L. No. 104-231, § 6,
110 Stat. 3048, 3050 (1996) (codified as amended at 5 U.S.C. § 552(a)(4)(B)). This
amendment, adopted against the longstanding circuit practice of according
“substantial weight” to agency affidavits in the Exemption 1 context, not only
ratifies the deference courts have given to agencies under Exemption 1, but also
extends it to matters of “technical feasibility under paragraph (2)(C) and subsection
(b) and reproducibility under paragraph (3)(B)” of the Act. Id.; cf. Castillo v. U.S.
Attorney Gen., 756 F.3d 1268, 1273 (11th Cir. 2014) (“Where words are employed
in a statute which had at the time a well-known meaning . . . in the law of this
country, they are presumed to have been used in that sense unless context compels
to the contrary.” (quoting Lorillard v. Pons, 434 U.S. 575, 583 (1978) (alterations
adopted)). Whatever tension might otherwise exist between the Act’s requirement
of de novo review and deferring to an agency’s explanation for withholding
information, Congress has approved of deference within the specific context of
Exemption 1. Accordingly, the district court did not err by deferring to the
Bureau’s affidavit supporting the Exemption 1 claim.
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Broward Bulldog also suggests in its reply brief that the district court erred
when it applied the standard it chose because the “arguments [of the Bureau] do
not show either logic or plausibility,” but this argument is abandoned. Broward
Bulldog discussed only the legal standard in its opening brief, not the application
of that standard to the facts of this appeal. And “[o]ur longstanding case law rule is
that an appellant who does not raise an issue in his opening brief may not do so in
his reply brief.” United States v. Durham, 795 F.3d 1329, 1330 (11th Cir. 2015)
(en banc).
2. Exemption 7(C) (Personal Information)
Exemption 7(C) protects “records or information compiled for law
enforcement purposes, but only to the extent that . . . production . . . could
reasonably be expected to constitute an unwarranted invasion of personal privacy.”
5 U.S.C. § 552(b)(7)(C). “The term ‘unwarranted’ requires [courts] to balance the
[relevant] privacy interest against the public interest in disclosure.” Nat’l Archives
& Records Admin. v. Favish, 541 U.S. 157, 171 (2004). If the government
establishes that certain information implicates a “personal privacy” interest, 5
U.S.C. § 552(b)(7)(C), the requestor “must show that the public interest sought to
be advanced is a significant one” and that “the information is likely to advance that
interest.” Favish, 541 U.S. at 172. We first consider the privacy interests at issue
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before discussing whether Broward Bulldog has met its burden to establish a
significant public interest.
Exemption 7(C) encompasses a strong privacy interest in “the intimate
details of an individual’s life” and “information about an individual which he could
reasonably assert an option to withhold from the public at large because of its
possible adverse effects upon himself or his family.” Nadler v. U.S. Dep’t of
Justice, 955 F.2d 1479, 1489 (11th Cir. 1992) (quoting L & C Marine Transport,
Ltd. v. United States, 740 F.2d 919, 923 (11th Cir. 1984)), abrogated on other
grounds by U.S. Dep’t of Justice v. Landano, 508 U.S. 165 (1993). The “names
and other identifying information” of individuals associated with an
investigation—“even if they are not the subject[s] of the investigation”—implicate
a “strong” privacy interest because “of the potential for harassment, intrusion, and
stigmatization resulting from disclosure of an individual’s connection with a
criminal investigation.” Id. at 1489 (citation and internal quotation marks omitted).
In determining whether information is identifying, we consider the information
“not only from the viewpoint of the public, but also from the vantage of those who
would have been familiar” with a particular individual. Reporters Comm., 489 U.S.
at 768 (quoting Rose, 425 U.S. at 380–81). At least in cases involving a major
terrorist attack and the ensuing investigation, “any information contained in 7(C)
investigatory files [that] would reveal the identities of individuals who are subjects,
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witnesses, or informants in law enforcement investigations [is] categorically
exempt from disclosure” unless disclosure advances a substantial public interest.
Nation Magazine v. U.S. Customs Serv., 71 F.3d 885, 896 (D.C. Cir. 1995).
The Bureau redacted, among other things, the names, addresses, and phone
numbers of many agents, suspects, witnesses, and other individuals involved in the
investigation. The Bureau also redacted information about the occupations, places
of residence, or other personal information about these individuals that could be
indirectly identifying. For example, the Bureau withheld the employment details
about an individual who owned a gas station at which several hijackers were
employed, and it redacted the dates that an individual traveled to Oman and
Venice. Finally, the Bureau redacted other types of information that do not clearly
identify any individual named in the documents, such as information stating that a
particular interview occurred in Venice.
The district court ruled that the government failed to satisfy its burden for all
but two of the redactions it made in 17 documents, and Broward Bulldog defends
those rulings on appeal. The district court stated that the Bureau provided only
“conclusory statements that disclosing the information could cause harassment,”
and it suggested that the Bureau needed to provide a specific assessment for each
redaction “to explain why [a] particular individual’s name deserves protection and
how disclosure would constitute a clearly unwarranted invasion of the person’s
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privacy.” In addressing the privacy interests of agents, suspects, and others, the
district court maintained that “once . . . information is in the public domain, there is
no longer a privacy interest justifying nondisclosure.” And like Broward Bulldog,
the district court stressed that the government had not explained why some names
were redacted and others were not.
The district court also strongly suggested that a privacy interest should not
be protected if an individual was connected to the 9/11 attacks or even was of
investigative interest in connection with those attacks. Broward Bulldog adds that a
privacy interest should not be protected if the relevant information is exculpatory.
This reasoning is flawed.
At the outset, we disagree that an individual assessment is always necessary
to support every redaction made under Exemption 7(C). We held in Nadler that the
government need not “make a separate showing as to the applicability of
Exemption 7(C) to each particular person identified in its records.” 955 F.2d at
1488. We explained that “where the public and privacy interests that affect the
balancing under Exemption 7(C) are the same for all the information withheld, the
[g]overnment’s proof applies equally to all the contested records,” and “categorical
balancing is appropriate.” Id. at 1488–89.
The district court committed three errors that caused it to understate the
privacy interests involved in most of the redactions. First, the district court
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erroneously applied the public-domain doctrine to many of the disclosures. The
district court, relying another district court’s decision, ruled that “[o]ne can have
no privacy interest in information that is already in the public domain.” Citizens for
Responsibility & Ethics in Wash. v. U.S. Dep’t of Justice, 840 F. Supp. 2d 226, 233
(D.D.C. 2012). We have not adopted the public-domain doctrine regarding
Exemption 7(C), and we need not decide whether to do so now because, even
assuming the validity of the doctrine, the district court misapplied it here.
Under the public-domain doctrine, “records which otherwise may be exempt
from disclosure under the FOIA ‘lose their protective cloak’ if they have been
‘disclosed and preserved in a permanent public record.’” Sellers v. U.S. Dep’t of
Justice, 684 F. Supp. 2d 149, 162 (D.D.C. 2010) (quoting Cottone v. Reno, 193
F.3d 550, 554 (D.C. Cir. 1999)). “The logic of the public domain doctrine is that
‘where information requested is truly public, then enforcement of an exemption
cannot fulfill its purposes.’” Judicial Watch, Inc. v. U.S. Dep’t of Def., 963 F.
Supp. 2d 6, 12 (D.D.C. 2013) (quoting Cottone, 193 F.3d at 554). To invoke the
doctrine, a requester must establish “that the information sought is truly public and
that the requester [will] receive no more than what is publicly available.” Id.(quoting Students Against Genocide v. Dep’t of State, 257 F.3d 828, 836 (D.C. Cir.
2001)); see also Wolf v. Cent. Intelligence Agency, 473 F.3d 370, 378 (D.C. Cir.
2007) (“Prior disclosure of similar information does not suffice; instead the
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specific information sought by the plaintiff must already be in the public domain
by official disclosure.”). A failure to establish that the same information sought has
been made public will cause an otherwise valid redaction to stand. See, e.g., Davis
v. U.S. Dep’t of Justice, 968 F.2d 1276, 1279–80 (D.C. Cir. 1992) (rejecting
application of public-domain doctrine where plaintiff submitted no evidence that
any specific portion of tape recordings had been made public despite submitting
“over 100 [newspaper] articles” suggesting that some unspecified portions of the
tapes had been played at a public trial).
For purposes of the public-domain doctrine, only the individual discussed in
the document or the agency in possession of the document may waive the
individual’s right to redaction by disclosing the individual’s identity. See Nation
Magazine, 71 F.3d at 896; Marino v. Drug Enf’t Admin., 685 F.3d 1076, 1082
(D.C. Cir. 2012) (explaining that the public-domain doctrine does not apply “when
someone other than the agency from which the information is being sought
discloses it” (citation and internal quotation marks omitted)). Information is not in
the “public domain” if it is merely the subject of public speculation. See Wolf, 473
F.3d at 378; Afshar v. Dep’t of State, 702 F.2d 1125, 1130 (D.C. Cir. 1983)
(rejecting suggestion that public speculation about Central Intelligence Agency
liaison with Iranian government constituted prior disclosure).
Broward Bulldog does not suggest that it proved that the same information
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in each redaction is also in the public record, or that the Bureau or the relevant
individuals disclosed the information in each redaction. Indeed, the district court
relied on information that “the [Bureau] or media sources” placed into the public
domain, and the government maintains that it already released all the names that it
had previously released into the public domain. Because the district court ruled that
the public-domain doctrine applies to information that is in the public domain
based only on media speculation and did not require Broward Bulldog to prove the
same information in each redaction was already in the public domain, the district
court erred.
Second, the district court erred when it ruled that Exemption 7(C) does not
protect a privacy interest if an individual was connected to or was of investigative
interest for the 9/11 attacks. Regardless of whether an individual is innocent or
guilty, “where the subject of the documents is a private citizen, the privacy interest
is at its apex.” Favish, 541 U.S. at 166 (alteration adopted) (citation and internal
quotation marks omitted). We do not “afford a lesser degree of privacy to those
who violate the laws of the United States” because distinguishing the innocent
from the guilty “violates the proposition that individuals have a substantial privacy
interest in their criminal histories.” O’Kane v. U.S. Customs Serv., 169 F.3d 1308,
1310 (11th Cir. 1999) (internal quotation marks omitted).
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We also disagree with Broward Bulldog that the innocent will necessarily
welcome exculpatory disclosures. There is “special reason” to protect “information
about persons interviewed as witnesses or initial suspects . . . whose link to the
official inquiry may be the result of mere happenstance.” Favish, 541 U.S. at 166.
“[E]xemption 7(C) takes particular note of the ‘strong interest’ of individuals,
whether they be suspects, witnesses, or investigators, ‘in not being associated
unwarrantedly with alleged criminal activity’” because “of the potential for
harassment, intrusion, and stigmatization.” Nadler, 955 F.2d at 1489 (quoting
Dunkelberger v. U.S. Dep’t of Justice, 906 F.2d 779, 781 (D.C. Cir. 1990)); see
also Am. Civil Liberties Union v. U.S. Dep’t of Justice, 750 F.3d 927, 934 (D.C.
Cir. 2014) (“[N]ow that these defendants have been acquitted or had the relevant
charges dismissed they have a significant and justified interest in avoiding
additional and unnecessary publicity.”). As Hardy explained in his declaration,
“9/11 was the most heinous terrorist attack to ever happen on American soil,” so
“[a]ny association or presumed association with these attacks casts the[]
[implicated] individuals in an extremely negative light.” Just as releasing a
criminal’s rap sheet could remind the public of events it may have forgotten,
Reporters Comm., 489 U.S. at 769, disclosing the redacted information here could,
as Hardy also explained, “cause . . . serious disruptions of the[] lives [of former
suspects and others] by reigniting old suspicions, sustaining any existing negative
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inferences into their character[s], and/or subjecting them to additional harassing
inquiries and/or negative reporting in the press.”
Third, the district court erred when it ruled that the government’s
“inconsistent” approach to the redaction of personal information undermined the
application of Exemption 7(C). The relevant question is whether the redactions the
government made were proper, not whether it could have made additional
redactions. Neither the district court nor Broward Bulldog cites any authority to
support the argument that the government must explain the inconsistent application
of an exemption. That position is unsupported by the text of the Act and, if
adopted, would have troubling consequences. In addressing an analogous
argument, we explained that to conclude that an agency waives its right to
withhold a document when it releases “related documents . . . would be contrary
both to the case law on waiver and to the policies underlying [the Act] and its
exemptions,” because it would “tend to inhibit agencies from making any
disclosures other than those explicitly required by law.” Fla. House of
Representatives v. U.S. Dep’t of Commerce, 961 F.2d 941, 947 (11th Cir. 1992)
(quoting Mobil Oil Corp. v. Envt’l Prot. Agency, 879 F.2d 698, 700, 701 (9th Cir.
1989)). And in any event, the Bureau has provided a reasonable explanation for its
approach to redacting some names but not others. See Suppl. Authority 08/01/18,
at 1–2 (noting that certain names were publicly disclosed by the Review
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Commission itself and that others were disclosed consistent with the Bureau’s
policy of releasing the names of senior officials). In short, the district court
erroneously understated the significant privacy interests that the personally
identifying information at issue implicates.
Because the Bureau has established that a significant privacy interest exists
in withholding the information, the requestor must identify a “significant” public
interest and “show the information is likely to advance that interest.” Favish, 541
U.S. at 172. The public’s interest in “having the information for its own sake” falls
outside the Act’s scope. Id. Instead, “the only relevant public interest in the . . .
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.” U.S. Dep’t of Def. v. Fed. Labor
Relations Auth., 510 U.S. 487, 497 (1994) (citation and internal quotation marks
omitted). A bare interest in learning who may have been involved in the 9/11
attacks “falls outside the ambit of the public interest that the [Act] was enacted to
serve.” Id. at 500 (citation and internal quotation marks omitted); see also Davis,
968 F.2d at 1282 (holding that although the public “undoubtedly [had]
considerable interest” in learning details about an informant’s “possible role in the
Kennedy assassination,” this interest fell outside the ambit of the Act because the
information would “reveal little or nothing about an agency’s own conduct”
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(alteration adopted) (citation and internal quotation marks omitted)). “The private
needs” of a requestor or others “for documents in connection with litigation . . .
play no part in whether disclosure is warranted.” L&C Marine, 740 F.2d at 923. To
rebut the privacy interests implicated here, Broward Bulldog must establish how
disclosure would shed light on the Bureau’s performance of its statutory duties.
Broward Bulldog argues that disclosing personal identifying information
would serve the public interest because the Bureau “invited public interest in the
details of its Sarasota investigation when it very publicly undertook to refute the
accuracy of the Bulldog’s reports.” But it cites no authority to support this
assertion. We agree with the government that Broward Bulldog “cannot
demonstrate a public interest in uncovering government malfeasance by pointing to
the government’s denials of [its] accusations.” And we reiterate that there is a
difference between public curiosity and the type of public interest that can
outweigh a personal privacy interest under Exemption 7(C).
The district court likewise did not identify a substantial public interest. It
ruled that “there is significant public interest in knowing who investigated the
September 11 attacks and briefed the Meese Commission,” in “learning about the .
. . investigation of the [Saudi family],” and in obtaining “information about who
may have been involved in the September 11 attacks,” particularly in the light of a
pending lawsuit in New York against Saudi Arabia. But other than citing an
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inapposite decision from another circuit, see Citizens for Responsibility & Ethics in
Washington v. U.S. Dep’t of Justice, 746 F.3d 1082, 1093 (D.C. Cir. 2014), the
district court never explained how these interests are cognizable under the Act.
To be sure, the public has some interest in the information that is relevant to
our analysis under Exemption 7(C). The names of those involved in an
investigation into a major terrorist attack could reveal how the government took
action with respect to certain leads. Disclosure might also permit Broward Bulldog
and other media outlets to contact individuals involved in the investigation. But
these public interests cannot outweigh the privacy interests that private citizens
hold in not being associated with a major terrorism investigation, which we
reiterate are at their “apex” here. Favish, 541 U.S. at 166 (citation and internal
quotation marks omitted).
Because Broward Bulldog has failed to establish a significant public interest
that can outweigh the strong privacy interests in the clearly identifying information
at issue—such as names, addresses, and phone numbers, we reverse the order of
the district court for these classes of information. But as discussed, the Bureau
seeks to redact other types of information that do not clearly identify any
individual—for example, information stating that a particular interview took place
in Venice or that an individual lived in Sweden—that do not clearly identify any of
the persons named in the documents. For all potentially identifying information
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that is not a name, address, or phone number, we remand to the district court to
allow it to determine in the first instance whether the information is identifying.
3. Exemption 7(D) (Confidential Sources)
Exemption 7(D) protects “records or information compiled for law
enforcement purposes, but only to the extent that . . . production . . . could
reasonably be expected to disclose the identity of a confidential source” and, “in
the case of a record or information compiled by criminal law enforcement
authority in the course of a criminal investigation or by an agency conducting a
lawful national security intelligence investigation, information furnished by a
confidential source.” 5 U.S.C. § 552(b)(7)(D). To establish that the exemption
applies, the government must prove that “the source provided information under an
express assurance of confidentiality or in circumstances from which such an
assurance could be reasonably inferred.” Landano, 508 U.S. at 172 (citation and
internal quotation marks omitted). For example, the “nature of [an] informant’s
ongoing relationship with the Bureau,” “the character of the crime at issue,” and
“the source’s relation to the crime” may support a reasonable inference of an
assurance of confidentiality. Id. at 179. When the government establishes that a
source provided information under an assurance of confidentiality, Exemption
7(D) creates a “per se limitation on disclosure” that “does not disappear if the
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identity of the confidential source later becomes known through other means.”
L&C Marine, 740 F.2d at 925.
The district court ruled that Exemption 7(D) protects information about a
jailhouse informant named in document 2, but not the same information about the
informant that appears in document 27, and that it protects the name of the former
security officer of the gated community where the Saudi family lived. When
addressing the redactions of the jailhouse informant’s information in document 2,
the district court ruled that “the source spoke with an implied assurance of
confidentiality” because “the information [obtained from the informant] concerned
violent criminal activities,” including terrorism and unsolved homicides, “that
could place the source in harm’s way should the individual’s identity become
known.” But it provided a different analysis of the notes from the informant’s
interview in document 27. It ordered the government to disclose the redacted
information because Exemption 7(D) was “invoked simultaneously with
Exemptions 6 and 7(C)” and the district court was “unable to determine what
specific information the [g]overnment s[ought] to protect under Exemption 7(D).”
As for the security guard, the district court explained that “[t]he redacted language
does not state the [Bureau] interviewed this individual, and Hardy does not explain
how the individual was a[] . . . source.” But it ruled that because “Hardy states any
redaction under [Exemption 7(D)] protects the names of parties who provided the
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[Bureau] confidential information[,] . . . this redaction protects identifying
information about a confidential source” and the exemption applies.
Both Broward Bulldog and the government challenge these rulings. Broward
Bulldog argues that the exemption does not apply at all because the informant’s
and the security guard’s identities, as well as the information they provided, are
already public and the government has not established that either source received
an assurance of confidentiality. According to Broward Bulldog, the district court
correctly ordered the disclosure of the informant’s information in document 27, but
it incorrectly protected information about both sources in document 2. The
government takes the opposite position: It contends that it is irrelevant that the
information may be public, and it maintains that both sources received assurances
of confidentiality. The government argues that the district court erred when it
ordered the disclosure of the identifying information in document 27, but correctly
applied the exemption to information about both sources in document 2.
We agree in part with the government and Broward Bulldog. Exemption
7(D) protects the information about the informant in documents 2 and 27, but it
does not apply to information about the security guard.
As an initial matter, the public-domain doctrine does not apply to Exemption
7(D). We have held that because “[c]onfidential, as used in [E]xemption 7(D), . . .
is meant to be construed as ‘given in confidence,’” and not as “secret,” Exemption
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7(D) protects sources even if a “the plaintiff[] [knows] who the [sources] were”
based on public sources. L&C Marine, 740 F.2d at 925 n.8 (quoting Radowich v.
U.S. Att’y, 658 F.2d 957, 959 (4th Cir. 1981)); accord Irons v. Fed. Bureau of
Investigation, 880 F.2d 1446, 1448 (1st Cir. 1989) (agreeing with L & C Marine
that “law enforcement agencies need not disclose information about source identity
even though the source’s identity is already publicly known”). We have stressed
that after the government proves that a source received an assurance of
confidentiality, Exemption 7(D) creates a “per se limitation on disclosure.” L&C
Marine, 740 F.2d at 925. The district court erred by relying on another district
court’s ruling that a party requesting information can overcome Exemption 7(D) by
showing “that the ‘exact information’ contained in the record is already in the
public domain.” Bullock v. Fed. Bureau of Investigation, 587 F. Supp. 2d 250, 253
(D.D.C. 2008).
Broward Bulldog argues that the Bureau failed to establish that the
informant provided information under an assurance of confidentiality, but we
disagree. As the district court understood when it applied the exemption to
document 2, the informant spoke under an implied assurance of confidentiality
because he provided information about terrorism and unsolved homicides. As
Hardy explained in his declaration, disclosure of “specific, singular, detailed
information” related to the “investigation of terrorism activities” by the Bureau
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“could subject [the informant], as well as [his] famil[y], to embarrassment,
humiliation, and/or physical or mental harm.” And as he stated, “in the . . .
experience [of the Bureau], sources providing information to the [Bureau] about
extremist activities do so at great peril to themselves and have faced retaliation and
threats (including death threats) when their assistance to the [Bureau] has been
publicly disclosed.” See also Ctr. for Nat. Sec. Studies v. U.S. Dep’t of Justice, 331
F.3d 918, 929 (D.C. Cir. 2003) (“A terrorist organization may even seek to hunt
down detainees (or their families) who are not members of the organization, but
who the terrorists know may have valuable information about the organization.”).
The Supreme Court and our sister circuits have held that similar
circumstances establish an implied assurance of confidentiality. The Supreme
Court explained in Landano that “[m]ost people would think that witnesses to a
gang-related murder likely would be unwilling to speak to the Bureau except on
the condition of confidentiality.” 508 U.S. at 179. And the District of Columbia
Circuit has held that “conspiracy to distribute crack and powder cocaine” and “the
crimes of rebellion or insurrection, seditious conspiracy, and advocating overthrow
of the government [are] serious offenses that, when undertaken by a criminal
enterprise with a record of violence, warrant the inference that an informant
expects confidentiality.” Mays v. Drug Enf’t Admin., 234 F.3d 1324, 1329 (D.C.
Cir. 2000) (citation and internal quotation marks omitted); see also Hodge v. Fed.
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Bureau of Investigation, 703 F.3d 575, 581–82 (D.C. Cir. 2013) (“Given the
vicious nature of the crimes and the explanation offered in the . . . affidavits, we
conclude that the witnesses who provided the relevant information about Hodge’s
involvement in the murders would have expected that their identities remain
confidential.”).
Broward Bulldog suggests that the Bureau had to “explain the sources’
relation to the crime, whether the source received payment, and whether the source
ha[d] an ongoing relationship with the law enforcement agency,” but we disagree.
Broward Bulldog cites a decision that explained that, to determine whether there
was an implied assurance of confidentiality, courts “examine[]” “several
considerations . . . , including the nature of the crime and the informant’s relation
to the crime.” Elec. Privacy Info. Ctr. v. U.S. Drug Enf’t Agency, 192 F. Supp. 3d
92, 111 (D.D.C. 2016). That court ruled that the Drug Enforcement Agency failed
to provide a “detailed explanation of the [relevant] factors.” Id. But it did not
suggest that a source is confidential only when every potentially relevant factor
favors confidentiality. Such a rule would contravene Landano, in which the
Supreme Court explained that a variety of “narrowly defined circumstances . . .
will support [an] inference” of confidentiality. 508 U.S. at 179 (“There may well
be other generic circumstances in which an implied assurance of confidentiality
fairly can be inferred.”); see also Mays, 234 F.3d at 1330 (discussing Landano).
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Although the district court did not err when it applied Exemption 7(D) to the
informant’s information in document 2, it erred when it ordered the disclosure of
the information in document 27. As evidenced by its analysis of document 2, the
district court agreed with the government that the informant provided information
to the Bureau under an implied assurance of confidentiality. It refused to grant
summary judgment to the government for the redactions in document 27 only
because it was “unable to determine what specific information the [g]overnment
s[ought] to protect under Exemption 7(D),” as opposed to Exemptions 6 and 7(C).
But the government submitted a detailed chart linking blocks of redacted text to
specific exemptions. And of course, the government may invoke multiple
exemptions to protect the same information. It should not be surprising that
information about an informant implicates Exemption 7(D), which protects
information from confidential informants, and Exemptions 6 and 7(C), which
protect personal information generally—whether it relates to a confidential
informant or any other individual.
As to the security guard, we agree with Broward Bulldog that his name
should not have been withheld under Exemption 7(D) because his actions—
including his speaking on the record to a journalist before he spoke to the
Bureau—would not support an inference that he spoke to the Bureau under an
implied assurance of confidentiality. Even so, because the Bureau asserted that the
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identifying information of persons like the security guard who were involved in the
investigation is also covered by Exemption 7(C), and his name and other
information is clearly identifying, we affirm the redaction under Exemption 7(C).
4. Exemption 7(E) (Law Enforcement Techniques and Procedures)
Exemption 7(E) protects “records or information compiled for law
enforcement purposes, but only to the extent that . . . production . . . 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).
Under Exemption 7(E), “[t]he phrase ‘techniques and procedures’ . . . refers
to how law enforcement officials go about investigating a crime.” Allard K.
Lowenstein Int’l Human Rights Project v. Dep’t of Homeland Sec., 626 F.3d 678,
682 (2d Cir. 2010). The purpose of this exemption is to shield sensitive law
enforcement techniques from disclosure to prevent criminals from “circumventing
future [law enforcement] investigations.” Blackwell v. Fed. Bureau of
Investigation, 680 F. Supp. 2d 79, 92 (D.D.C. 2010), aff’d, 646 F.3d 37 (D.C. Cir.
2011).
Our sister circuits have held, and we agree, that law enforcement techniques
or procedures that are universally known to the public cannot be shielded from
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disclosure under the Act. See Rugiero v. U.S. Dep’t of Justice, 257 F.3d 534, 551
(6th Cir. 2001); Davin v. U.S. Dep’t of Justice, 60 F.3d 1043, 1064 (3d Cir. 1995);
Rosenfeld v. U.S. Dep’t of Justice, 57 F.3d 803, 815 (9th Cir. 1995). But even for
well-known techniques or procedures, Exemption 7(E) protects information that
would reveal facts about such techniques or their usefulness that are not generally
known to the public, as well as other information when disclosure could reduce the
effectiveness of such techniques. See, e.g., Vazquez v. U.S. Dep’t of Justice, 887 F.
Supp. 2d 114, 116–17 (D.D.C. 2012) (observing that while the public is generally
aware of the Bureau’s National Crime Information Center databases, details of
their use and whether individuals are mentioned in them is not known to the
public). For example, when disclosure would expose specific vulnerabilities in
law-enforcement investigative techniques and procedures, Exemption 7(E) applies.
See, e.g., Blackwell v. Fed. Bureau of Investigation, 646 F.3d 37, 42 (D.C. Cir.
2011) (holding that Exemption 7(E) applied when disclosure would “expos[e] [the
Bureau’s] computer forensic vulnerabilities to potential criminals”). Exemption
7(E) also covers disclosures that would reveal an agency’s investigatory “targeting
priorit[ies].” Am. Civil Liberties Union of Mich. v. Fed. Bureau of Investigation,
734 F.3d 460, 466 (6th Cir. 2013). As the Sixth Circuit has explained, “[o]ur
intelligence and law-enforcement agencies are awash in a sea of data, much of it
public, so a choice to focus on a particular slice of that data directly reveals a
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targeting priority, and indirectly reveals the methodologies and data used to make
that selection.” Id. (“There is no way to release certain types of public information
without showing the FBI selection process.”).
The parties dispute whether information redacted from documents 2 and 22
falls within Exemption 7(E). The Bureau redacted information from document 2, a
briefing report on the Bureau’s investigation of the Saudi family, on the ground
that it relates mainly to “sensitive investigative techniques and procedures” and the
“dates and types of investigations (preliminary or full investigations).” And the
Bureau redacted information in document 22, a slideshow of an overview of the
9/11 investigation, on the ground that it relates to the “collection and/or analysis of
information.” The district court upheld all of the redactions.
The parties agree that the dispute turns on whether the redacted information,
if released, would “disclose techniques and procedures for law enforcement
investigations or prosecutions.” 5 U.S.C. § 552(b)(7)(E). Broward Bulldog does
not dispute that the information was “compiled for law enforcement purposes,” and
the government does not argue that the redacted information, if released, would
“disclose guidelines for law enforcement investigations or prosecutions.” Id.Broward Bulldog argues that the Bureau cannot redact information under the
Act if the information is already in the public domain, and it maintains that the
Bureau “has not proven that the information it withheld or redacted from
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[d]ocument 22 is not disclosed in . . . some other public document.” It also argues
that revealing the information in both documents 2 and 22 would not reveal the
“techniques and procedures for law enforcement investigations or prosecutions,”
id., because the documents reveal only “[f]acts and information the [Bureau]
gathered about the hijackers and their activities.” And it argues that the final
qualifying phrase, “if such disclosure could reasonably be expected to risk
circumvention of the law,” modifies both the “guidelines” clause and the
“techniques and procedures” clause in the statute. So the government must prove—
and, Broward Bulldog argues, has not proven—that revealing the redacted
information “could reasonably be expected to risk circumvention of the law.” Id.In document 2, the Bureau withheld the phrase “telephone, email or financial
contact” from a passage discussing the lack of evidence of contact between the
hijackers and the Saudi family. The Bureau asserted that disclosing this passage
would “reveal techniques used by the [Bureau] in terrorism investigations,
specifically the agency’s reliance upon, and its ability to obtain, evidence from
these sources.” But the fact that the Bureau might look to phone, email, or financial
records in an investigation is so obvious and widely known that the withheld
information fails to “disclose” any law-enforcement technique.
As to document 22, we agree with the government that most of its redacted
information reveals the usefulness of certain law-enforcement techniques and
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procedures or reveals vulnerabilities that are not generally known to the public. For
example, slide 19 details the specific methods the hijackers used to manage their
finances to avoid detection by law enforcement. Slide 20 similarly explains how
and when the hijackers obtained passports, visas, and identification cards that they
used to enter and travel throughout the country. Other slides detail how the attacks
were funded, the travel arrangements the hijackers used to enter the country, and
the various tactics the hijackers used to prepare for the attacks. These redacted
passages “reveal the data considered relevant by the [Bureau], the specific factors
considered in the investigation, and the commonalities and patterns detected (and
not detected) by the [Bureau] when analyzing the data.” Some of the materials also
“disclose the [Bureau’s] ‘playbook’ for apprehending criminals” and “allow[]
criminals to place themselves a step ahead of law enforcement.” Because almost all
of these passages expose aspects of the Bureau’s investigative and analytical
methodologies, they disclose “how law enforcement officials go about
investigating a crime” and are protected under Exemption 7(E). Allard, 626 F.3d at
682.
Although the bulk of the redacted slides in document 22 are protected under
Exemption 7(E), the government has failed to meet its burden with respect to three
slides. First, in slide 13 the government withheld a grainy photograph taken by a
security camera in an unknown location, and it is unclear who or what the photo
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depicts. The Bureau states that disclosing this image would permit future subjects
to “know where to find the security camera so as to avoid the area in which the
camera points, thereby circumventing detection or the ability for the [Bureau] and
law enforcement to try to obtain an image of the subject.” Although we agree that
disclosing the location of a specific, hidden camera still in operation would
disclose a “technique or procedure of law enforcement,” the Bureau has not
provided enough facts to determine that this photo is from a hidden camera as
opposed to one that is visible or that the photo is clear enough to reveal the
camera’s location to any subject. So we reverse the summary judgment protecting
the photo from disclosure and remand to the district court to allow the Bureau to
supplement the record with additional details about the camera.
The government also withheld slides 56 and 57 from document 22. These
slides generally describe the facts about the investigation of Walid bin Attash,
including that Osama bin Laden instructed Attash to assist with a hand-to-hand
combat course intended to help select candidates for the 9/11 operation; that Attash
learned more information about the 9/11 operation in a meeting with Khalid
Sheikh Mohammed in Karachi; that he met with two other conspirators in Kuala
Lumpur and Bangkok to case potential targets; and that Attash’s “casing report”
from his travels to Kuala Lumpur and Bangkok was recovered in Afghanistan. The
Bureau argues that disclosure of these slides would risk revealing the “collection
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techniques used to obtain such information” and also reveal “sensitivities that
future subjects could exploit in the future while planning and performing an
attack.” But the government fails to explain how disclosing this information would
risk revealing the specific collection methods by which it was obtained or
otherwise reveal a law-enforcement vulnerability, and it is not self-evident to us
how disclosure would create such risks. Because these slides do not disclose a law-
enforcement technique or procedure, they are not protected under Exemption 7(E),
and we reverse the ruling protecting them from disclosure.
In addition to disputing whether the redacted passages disclose law-
enforcement techniques and procedures, Broward Bulldog argues that the Bureau
must prove that each of its redactions and withholdings, if disclosed, “could
reasonably be expected to risk circumvention of the law,” 5 U.S.C. § 552(b)(7)(E),
but we disagree. As an initial matter, it is not clear that this provision applies here.
That statutory phrase follows the second of the two “would disclose” clauses:
records are exempt if they “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.” Id. The District of Columbia and Third
Circuits have ruled that an agency must show a risk of circumvention of the law if
the documents refer either to “guidelines for law enforcement investigations or
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prosecutions” or to “techniques and procedures for law enforcement investigations
or prosecutions.” See Pub. Employees for Envt’l Responsibility v. U.S. Section,
Int’l Boundary & Water Comm’n, U.S.-Mexico, 740 F.3d 195, 204 n.4 (D.C. Cir.
2014); Davin, 60 F.3d at 1064. By contrast, the Second and Ninth Circuits have
held that the contravention clause modifies only the “guidelines” clause. See
Hamdan v. U.S. Dep’t of Justice, 797 F.3d 759, 778 (9th Cir. 2015); Allard, 626
F.3d at 681. In those circuits, the government need not show that a disclosure will
risk contravention of the law to protect information that would disclose law-
enforcement techniques and procedures.
We need not take a side here. Even if this provision applies, the Bureau has
met that burden. Disclosing unknown law enforcement techniques and procedures
frequently “could reasonably be expected to risk circumvention of the law,” 5
U.S.C. § 552(b)(7)(E), and that is the case here. Broward Bulldog reiterates that
“[d]etailed information concerning the planning and execution of the 9/11 attacks
is widely available already.” But it misses the point that the redacted information
in document 22 will also shed light on how Bureau agents uncovered that “detailed
information.” And as Hardy explained in his declaration, revealing “a playbook to
future subjects” on, for example, “how much money one can move around, what
form is more or less detectable, through what means, and where to avoid so as not
to attract attention” may make it easier for others to circumvent the law. And
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disclosing “how the hijackers were able to obtain identification, enter the country,
and what types of identification they were successful at obtaining” as well as “the
sources the [Bureau] obtains this information from, [and] the specific types of data
the [Bureau] finds most useful” would threaten the Bureau’s “ability to apprehend
others using the same methods.”
5. Exemption 5 (Deliberative Process)
Exemption 5 protects “inter-agency or 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 “includes a ‘deliberative process
privilege’” that is designed both to minimize public confusion about agency
rationales and actions and “to allow agencies to freely explore possibilities, engage
in internal debates, or play devil’s advocate without fear of public scrutiny.” Moye,
O’Brien, O’Rourke, Hogan, & Pickert v. Nat’l R.R. Passenger Corp., 376 F.3d
1270, 1277 (11th Cir. 2004) (quoting Nadler, 955 F.2d at 1490 and Dep’t of
Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8–9 (2001)).
Broward Bulldog argues that the district court erred when it ruled that
Exemption 5 applied to redactions in documents 2, 5, and 22. As for documents 2
and 5, we have already concluded that Broward Bulldog’s challenge to the alleged
“boilerplate” justifications for the application of Exemption 5 to these documents
has no merit. Broward Bulldog’s remaining challenge about document 2 is waived.
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In its reply brief, Broward Bulldog argues that Exemption 5 does not apply to
redactions in document 2 because that document was created for a
“Congressionally-created [sic] Commission that was not, itself, an agency.” We do
not consider this issue because it was not raised in Broward Bulldog’s opening
brief. See Durham, 795 F.3d at 1330.
Document 22 is a different matter. We need not reach the question whether
Exemption 5 protects information in document 22 that we have already held is
covered under Exemption 7(C) and 7(E). But neither exemption applies to slides
56 and 57 of the document, so we must consider whether Exemption 5 applies to
this information.
As its name suggests, the deliberative process privilege protects only
“deliberative” materials—that is, materials that are “a direct part of the deliberative
process in that [they make] recommendations or express[] opinions on legal or
policy matters.” Miccosukee Tribe, 516 F.3d at 1263 (quoting Vaughn, 523 F.2d at
1144). Material must also be “predecisional” to fall under the privilege. To be
predecisional, information must be “prepared in order to assist an agency decision-
maker in arriving at his decision.” Nat’l R.R. Passenger Corp., 376 F.3d at 1277.
The information contained in slides 56 and 57 fails to satisfy either
requirement. As discussed, these slides contain general information about Walid
bin Attash’s activities around the time of the 9/11 attacks. The government has not
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established that the information contained in the slides “makes recommendations
or expresses opinions on legal or policy matters.” Miccosukee Tribe, 516 F.3d at
1263 (quoting Vaughn, 523 F.2d at 1144). The slides contain only a list of factual
statements, and “factual materials do not become privileged merely because they
represent a summary of a larger body of information.” Trentadue v. Integrity
Comm., 501 F.3d 1215, 1232 (10th Cir. 2007); see also Nat’l R.R. Passenger
Corp., 376 F.3d at 1278 (“[T]he Supreme Court has held that factual information
generally must be disclosed.”). Similarly, nothing in the record suggests that that
the slides were “prepared in order to assist an agency decision-maker in arriving at
his decision.” Id. at 1277. Although the materials might “predate[] a decision
chronologically,” we do not see how they “contribute[d] to [any] decision.” Id. at
1278. Put differently, the information is “merely peripheral to actual policy
formation.” Id. at 1277–78. To be predecisional, “the record must bear on the
formulation or exercise of policy-oriented judgment.” Id. at 1278. Because these
slides are not deliberative or predecisional, they do not fall under Exemption 5.
E. The District Court Did Not Err when It Failed to Make Express Findings
of Segregability.
Broward Bulldog argues that we must reverse because the district court
made no express findings on segregability, but we disagree. In Miccosukee Tribe,
we acknowledged that the District of Columbia Circuit requires express findings
“as to whether any segregable portions of the withheld documents should have
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been disclosed.” 516 F.3d at 1265. But we explained that, “[i]n this Circuit,
exacting requirements have not been placed on the district court’s articulation of its
reasons for sustaining a claim of exemption.” Id. And we stated that the appeal
“d[id] not present us with the appropriate occasion to consider whether to require
additional levels of analysis and more detailed findings” because the district court
conducted an “in camera review” and its review “was correctly conducted.” Id.The same reasoning applies here. The district court may not have used the
word “segregability,” but its lengthy analysis over the course of three orders
establishes that it sought to limit the redactions to the extent possible. And there is
no need to reverse and remand when both this panel and the district court have
conducted in camera reviews to ensure that only exempt information is redacted.
We will not require such a pointless formality. See Juarez v. Dep’t of Justice, 518
F.3d 54, 60 (D.C. Cir. 2008) (explaining that the appellate court “need not prolong
the case further by remanding it solely for th[e] purpose” of making a segregability
finding because it “ha[d] the same record before [it] as did the district court” and it
was “just as capable of evaluating the . . . affidavits regarding segregability as
[wa]s the court below”).
F. The District Court Did Not Err when It Refused to Consider Documents
at Issue in an Earlier-Filed Lawsuit.
Broward Bulldog argues that the district court erred when it declined to
order the production of records that the newspaper had already sought in Broward
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Bulldog I because the Act recognizes only nine exemptions and “[d]uplicative
requests and productions are not among them.” But “[t]he first-filed rule provides
that when parties have instituted competing or parallel litigation in separate courts,
the court initially seized of the controversy should hear the case.” Collegiate
Licensing Co. v. Am. Cas. Co. of Reading, Pa., 713 F.3d 71, 78 (11th Cir. 2013).
Indeed, “where two actions involving overlapping issues and parties are pending in
two federal courts, there is a strong presumption across the federal circuits that
favors the forum of the first-filed suit under the first-filed rule.” Id. (alteration
adopted) (citation and internal quotation marks omitted). That rule finds support in
“considerations of comity and orderly administration of justice”: “two courts of
equal authority should not hear the same case simultaneously” and potentially
“generate dueling appeals.” UtahAmerican Energy, Inc. v. Dep’t of Labor, 685
F.3d 1118, 1124 (D.C. Cir. 2012) (alteration adopted). Nor should the judiciary
“expend judicial resources” to “allow[] the same . . . plaintiff multiple bites at the
apple.” Id. Broward Bulldog was already engaged in ongoing litigation before
another district judge, so the district court here did not err when it refused to
entertain “the exact same legal issues” raised by the “exact same parties” about the
“exact same [documents].” Collegiate Licensing, 713 F.3d at 78.
Although Broward Bulldog concedes that “principles of comity and judicial
efficiency” may apply in other circumstances, it argues that the government “cites
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no authority for the proposition that these principles trump the . . . compliance
requirements” of the Act. But it provides no authority to suggest that these
generally applicable principles do not apply to litigation under the Act. It makes no
sense to carve out a special exception for the Act. The same comity and efficiency
considerations that ordinarily support the first-filed rule apply with equal, if not
greater, force in this setting. As the district court explained, deciding which
exemptions apply to the same documents in two separate proceedings risks
“inconsistent findings . . . with respect to the [same] records.” And the District of
Columbia Circuit has explained that the problem of duplicate litigation is
“particularly acute in . . . cases [under the Act]” because “multiple components of
the same agency may withhold the same documents on the same grounds, thus
potentially generating multiple lawsuits and appeals raising the same issues.”
UtahAmerican, 685 F.3d at 1125.
In any event, the district court in Broward Bulldog I recently issued an
opinion on the records that Broward sought in its 2011 request. See Broward
Bulldog I, No. 12-cv-61735-WJZ (S.D. Fla. Aug. 22, 2019). After the court enters
a separate final judgment, Broward Bulldog will be free to appeal its decision.
Broward Bulldog suggests, unpersuasively, that we should require duplicate
litigation notwithstanding the resolution of Broward Bulldog I because that case
does not “disclose which records the Meese Commission reviewed.” In other
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words, it argues that it is entitled to duplicate litigation because it worded its two
requests differently. Its first request sought all documents related to the Saudi
family, and the second request sought documents reviewed by the Commission. So
according to Broward Bulldog, only disclosures made in response to the second
request will allow Broward Bulldog to “evaluate whether the [Bureau] provided
the Meese Commission with the documents necessary to perform its task.” But the
Act provides a right to documents, not a right to information about how particular
documents were used. See Kissinger v. Reporters Comm. for Freedom of the Press,
445 U.S. 136, 152 (“The Act . . . only obligates [an agency] to provide access to
[information] which it in fact has created and retained.”). We see no reason to
allow Broward Bulldog to pursue duplicative litigation because it used different
wording to request the same documents in two separate actions.
IV. CONCLUSION
We AFFIRM IN PART and REVERSE IN PART the summary judgment,
and we REMAND for further proceedings consistent with this opinion.
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MARTIN, Circuit Judge, concurring in part and dissenting in part:
I agree with most all of the Majority Opinion.1 Yet this case requires our
panel to rule on the propriety of a whole host of redactions made by the
government to the many documents requested by the Broward Bulldog (“Bulldog”)
pursuant to FOIA, 5 U.S.C. § 552. The redactions made by the government, in
turn, rely on various exemptions to FOIA’s production requirements. I do not line
up with the Majority Opinion on every one of its rulings regarding the
government’s redactions. In particular, I dissent to the approval given by the
Majority Opinion to the FBI’s claimed redactions under Exemptions 7(C) and
7(E). I do not believe those redactions comply with the requirements of FOIA.
I will not restate the facts and procedural history of this case, which are ably
recited in the Majority Opinion. Instead, I start with an overview of the law
underlying my points of disagreement. Under FOIA, a federal agency must
disclose official information upon request, unless the request falls within one of
nine enumerated exemptions. See 5 U.S.C. § 552(a). “These exemptions are
1
Specifically, I concur in Parts III.A, B, C, E, and F of the Majority Opinion, which hold
that the Federal Bureau of Investigation (“FBI”) conducted an adequate search; the District Court
had an adequate factual basis to issue a decision in this case; the District Court properly denied
the Broward Bulldog’s request to depose the FBI agent who briefed the 9/11 Commission on the
investigation at issue in this case; and the District Court did not err by failing to make express
findings on segregability or by declining to order the production of records the Bulldog had
previously sought. Also, with regard to government’s redaction of documents it produced
pursuant to the Freedom of Information Act (“FOIA”) request from the Bulldog I agree with the
discussion in the Majority Opinion in Parts III.D.1, 3, and 5. I respectfully dissent from Parts
III.D.2 and 4.
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explicitly made exclusive, and must be narrowly construed.” Milner v. Dep’t of
Navy, 562 U.S. 562, 565, 131 S. Ct. 1259, 1262 (2011) (citations and quotation
marks omitted); see Ely v. FBI, 781 F.2d 1487, 1489–90 (11th Cir. 1986).
Exemption 7 permits a federal agency to withhold “records or information
compiled for law enforcement purposes,” subject to certain conditions. 5 U.S.C.
§ 552(b)(7).
I. EXEMPTION 7(C)
I first turn to Exemption 7(C), which authorizes an agency to withhold
records or information compiled for law enforcement purposes to the extent that
revealing the information “could reasonably be expected to constitute an
unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C). 2 The
inclusion of the term “unwarranted” calls on courts to balance “the public interest
in disclosure against the interest Congress intended the Exemption to protect.”
U.S. Dep’t of Justice v. Reporters Comm., 489 U.S. 749, 776, 109 S. Ct. 1468,
1483 (1989).
2
Exemption 7(C) overlaps with Exemption 6, which permits withholding of “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). Exemption 7(C) is “more protective of
privacy” than Exemption 6. U.S. Dep’t of Def. v. Fed. Labor Relations Auth., 510 U.S. 487, 496
n.6, 114 S. Ct. 1006, 1013 n.6 (1994); see Office of the Capital Collateral Counsel, N. Region of
Fla. ex rel. Mordenti v. Dep’t of Justice, 331 F.3d 799, 803 n.6 (11th Cir. 2003). So while the
redactions under Exemption 7(C) also fall under Exemption 6, the FBI’s argument focuses on
Exemption 7(C), and I do as well.
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In its production to the Bulldog, the FBI cited Exemption 7(C) as its basis
for withholding the personal information of certain people named in the FBI’s
reports. This included persons of interest in the investigation that was the subject
of the Bulldog’s request, as well as the identity of FBI agents and other
government employees involved in that investigation. On December 30, 2016, the
government moved for partial summary judgment as to these redactions. On
February 27, 2017, the District Court denied in relevant part the FBI’s motion for
summary judgment, holding that the FBI had not shown it was entitled to the
challenged Exemption 7(C) redactions. Following the District Court’s February
order, the FBI made additional disclosures but again moved for summary judgment
as to the remaining redacted information. On May 16, 2017, in a document-by-
document, page-by-page analysis, the District Court again largely denied the
government’s motion for withholding under Exemption 7(C). The lone grant of an
Exemption 7(C) redaction went to part of Document 22—a 60-page PowerPoint
presentation dated April 25, 2014, and entitled “Overview of 9/11 Investigation.”
For this document, the District Court sustained the redaction of the names of two
people not associated with the investigation whose names were incidentally
mentioned.
The FBI appeals from the District Court’s denial of withholding of personal
information under Exemption 7(C), arguing that withholding under this exemption
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is necessary to protect the privacy interest of people whose information appears in
the documents. I find the FBI’s arguments to be deficient in a number of respects
and would affirm the District Court’s orders as to the redactions under Exemption
7(C).
A. PROBLEM ONE: LACK OF SPECIFICITY
As a threshold matter, the FBI’s Exemption 7(C) arguments fall short
because the FBI fails to specify which documents or individual redactions it
believes were wrongly ordered to be revealed. Instead, I understand the FBI to
make a blanket argument that all the District Court’s unfavorable rulings on
Exemption 7(C) should be reversed. The FBI makes this broad and general
argument despite acknowledging—and premising its argument on—the fact that
courts reviewing redactions under Exemption 7(C) must “carefully examine the
nexus between the requested information and the asserted public interest.”
Nevertheless, on the face of its appeal, the FBI fails to make clear what
“information” should be analyzed. For example, the FBI mentions the
responsibility of courts to “balance” in the context of “dates of birth, driver’s
license numbers, addresses, phone numbers, and other such information.” Yet it
fails to identify any driver’s license numbers or phone numbers that might be
disclosed. Thus, the relevance of this argument is not clear. In the same way,
FBI’s argument does not make clear whether it seeks to challenge all documents
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analyzed by the District Court, or only those that are the subject of the Bulldog’s
appeal. By failing to point to the specific materials it says deserve withholding
under Exemption 7(C), the FBI deprives this Court of any ability to perform the
required analysis. See, e.g., United States v. Dunkel, 927 F.2d 955, 956 (7th Cir.
1991) (per curiam) (refusing to search through the record for possible claims
because “[j]udges are not like pigs, hunting for truffles”).
The Majority Opinion raises no problem with the FBI’s general approach in
asserting its Exemption 7(C) claims in this appeal. To the contrary, when it
condones the FBI’s lack of specificity, it fails to properly frame the issue.
According to the Majority Opinion, the FBI’s approach is acceptable because “the
government need not ‘make a separate showing as to the applicability of
Exemption 7(C) to each particular person identified in its records.’” Maj. Op. at 34
(quoting Nadler v. U.S. Dep’t of Justice, 955 F.2d 1479, 1488 (11th Cir. 1992),
abrogated on other grounds by U.S. Dep’t of Justice v. Landano, 508 U.S. 165, 113
S. Ct. 2014 (1993)). However, before we ever reach the question of whether the
FBI has done a proper categorical balancing of the private and public interests at
stake in these redactions, we must ask whether the FBI has given proper notice of
what rulings it is challenging. See United States v. Adkinson, 135 F.3d 1363, 1379
(11th Cir. 1998) (rejecting appellate brief for failure to point to specific errors in
the record); see also 11th Cir. R. 28-1(i) (requiring citation to the record). Because
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I believe it improper for the FBI to make a blanket challenge to all rulings on a
given Exemption, without specifying which rulings it seeks to challenge, I would
affirm the District Court’s ruling as to all Exemption 7(C) redactions.
B. PROBLEM TWO: LACK OF CATEGORICAL DEFINITION
Even if the FBI’s blanket approach to appealing from the District Court’s
orders were acceptable, I would not hold, as the Majority Opinion does, that the
FBI has identified allowable categories of individuals for which Exemption 7(C)
redactions are proper. As I understand its argument, the FBI wants this court to
endorse a categorical rule that “[p]eople involved in an investigation”—defined to
include “witnesses, suspects, persons of interest, or government agents”—always
have a protected privacy interest in their connection to the investigation. The lone
case the FBI cites for this proposition, National Archives & Records
Administration v. Favish, 541 U.S. 157, 124 S. Ct. 1570 (2004), says nothing of
the sort. In Favish, the Supreme Court held that the family member of a deceased
person has a privacy interest within the scope of Exemption 7(C). Id. at 165, 124
S. Ct. at 1576. The Favish Court further noted that people “whose link to the
official inquiry may be the rest of mere happenstance” often have a right to official
protection of their “intimate personal data,” particularly where “the subject of the
documents is a private citizen.” Id. at 166, 124 S. Ct. at 1577 (quotation marks
omitted). Favish indicates that, before categorical balancing is appropriate, some
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caution must be taken to ensure that a proper “category” of persons has been
established. The FBI exercised no such caution.
It is easy to see why the FBI’s approach here is deficient. Take, for
example, Document 2. In this document, the FBI redacted the name of a neighbor
of the al-Hijjis. This neighbor was quoted by name in a September 8, 2011
Bulldog article and submitted an affidavit in support of the Bulldog’s lawsuit. I do
not accept the idea that this neighbor—who has thrust himself into the public
discourse of the subject of this case on several occasions—should get the same
personal-privacy considerations as both an FBI agent and a person of interest in the
investigation. For that matter, I find it hard to understand why the privacy interests
of an FBI agent and a person of interest to the investigation should be presumed to
be so similar that we analyze them together. There may well be reasons to conduct
the analysis in this way, but the FBI has not enlightened us as to what those
reasons might be. It is not the job of this court to do government’s work for it, by
providing those reasons for ourselves.
The FBI’s failure to identify a cognizable group of persons for whom
categorical treatment makes sense gives us another basis for affirming the District
Court’s rulings as to Exemption 7(C).
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C. PROBLEM THREE: THE DISTRICT COURT PROPERLY BALANCED
THE PUBLIC AND PRIVATE INTERESTS
Even if we had received information sufficient for us to reach the merits of
the Exemption 7(C) redactions, I would reject the FBI’s argument that the District
Court failed to properly appreciate the privacy interest at stake and mistakenly
measured the magnitude of the public’s interest.3
a. Privacy Interest
As to the privacy interest at stake in these documents, the FBI correctly
points out that people have an interest in “not being associated unwarrantedly with
alleged criminal activity.” Nadler v. U.S. Dep’t of Justice, 955 F.2d 1479, 1489
(11th Cir. 1992) (quotation marks omitted), abrogated on other grounds by U.S.
Dep’t of Justice v. Landano, 508 U.S. 165, 113 S. Ct. 2014 (1993). But the
District Court appropriately considered this interest. In the first instance, the
District Court analyzed the privacy interest for every piece of information for
which the FBI sought to apply Exemption 7(C). In doing so, the District Court
explained in each instance exactly how the government failed to meet its burden of
redaction. Once the FBI produced another Vaughn index to explain its rationale
for the redactions, the District Court again gave additional analysis of each claim,
explaining why each of the government’s rationales was insufficient. I do not
3
I emphasize again that reaching the merits of this question is a non-starter because the
FBI has not specified the personal information for which it believes disclosure was improperly
ordered.
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agree with the Majority Opinion’s construction of the District Court’s February
order as holding that “Exemption 7(C) does not protect a privacy interest if an
individual was connected to or was of investigative interest for the 9/11 attacks.”
Maj. Op. at 37. Rather, I understand the District Court to say that the rationale for
privacy is lessened—though not eliminated—where a person’s connection to the
investigation at issue is already known. Even now, the FBI has continued to fail to
produce information to bolster its claims of a privacy interest. Thus, I see no basis
for overturning the District Court’s rejection of these claims.
The FBI also argues the mere fact that a person’s name has previously been
disclosed does not waive that person’s privacy interest, because the interest
belongs to the person, not the FBI. True, a privacy interest is personal, but courts
may consider the existing public record when measuring the magnitude of that
privacy interest. See Reporters Comm., 489 U.S. at 763–64, 109 S. Ct. at 1476–77
(contrasting the privacy interest in “hard-to-obtain information” with information
readily available to the public).
The Majority Opinion says the existence of the sought information in the
public domain is irrelevant because the Bulldog has not established that “the same
information in each redaction is also in the public record, or that the [FBI] or the
relevant individuals disclosed the information in each redaction.” Maj. Op. at 36
(emphasis omitted). Notably, the FBI does not make this argument. Indeed, the
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FBI could not rely on this argument that is the premise of the Majority Opinion
because the government has not actually identified the pieces of information for
which it believes disclosure is erroneous. Rather, the government’s argument is
that the District Court erred by ordering production of information relevant to
“some individuals whose identities have not been the subject of public
speculation,” and that even if an individual has been the subject of public
speculation regarding this investigation disclosure can still impose an unfair
stigma. Again, the FBI argues generally that the balance of interests “tilts even
more strongly against disclosure when it comes to dates of birth, driver’s license
numbers, addresses, phone numbers, and other such information,” but it does not
point to any driver’s license numbers, phone numbers, or home addresses that have
been ordered to be disclosed. Similarly, the FBI makes the general argument that
“[i]ndividuals acquitted of crimes have a clear privacy interest in controlling
information in their publicly available court records.” And again here, it fails to
point to any person in that circumstance who is at issue in this case. The FBI’s
arguments here would certainly be strengthened if it could point to an instance of
private information that should not be released. On the record before us, I view the
District Court’s order as having properly considered the relevant privacy interests.
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b. Public Interest
The FBI argues that the District Court erred in relying on the public’s
interest in “learning about . . . suspects and subjects of interest in the September 11
attacks” because FOIA is not designed to let the public learn about individual
criminal actions. The Majority Opinion reverses the District Court, ruling that this
public interest is not so compelling as to favor of disclosure. Maj. Op. at 41–42.
The operative question for us is whether disclosure would “appreciably further ‘the
citizens’ right to be informed about what their government is up to.’” U.S. Dep’t
of Def. v. Fed. Labor Relations Auth., 510 U.S. 487, 497, 114 S. Ct. 1006, 1013–
14 (1994) (quoting Reporters Comm., 489 U.S. at 773). I believe the public does
have an interest in knowing what, if anything, the government knew about the al-
Hijjis in the run-up to the 9/11 attacks, as well as how the FBI handled its
investigation of the al-Hijjis’ departure from the country.
The Majority Opinion is right when it says that it would have been
insufficient for the District Court to rest its assertion of a public interest wholly on
the supposed interest in information about “who may have been involved in the
9/11 attacks.” Maj. Op. at 41. But the District Court did not limit its analysis in
this way. The District Court also weighed the “significant public interest . . . in
learning about the FBI’s investigation of the Al-Hijjis”, specifically whom the FBI
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investigated and how that investigation was conducted. These interests strike me
as weighty enough.
The FBI does a disservice by comparing the public interest in this case first
to Nadler and then to Reporters Committee. Nadler addressed a claim by a former
judge seeking to learn the name of the informant who alerted authorities that the
judge was accepting bribes. Id. at 1482–83. The information sought by the
Bulldog in this case is thus hardly alike the “conduct of private citizens” at issue in
Nadler. Similarly, Reporters Committee addressed a purported public interest in a
person’s past arrests and convictions, no matter how small or long ago. See 489
U.S. at 774–75, 109 S. Ct. at 1482–83. Unlike past incidents that may line an
individual’s FBI rap sheet, the public is not likely to “forg[et]” about the 9/11
attacks any time soon. See Maj. Op. at 38. Suffice it to say that the 9/11 attacks
were a pivotal historic event and the government’s investigation of those attacks
continues to generate great public interest.
The FBI also argues that the large amount of public information disclosed
about the 9/11 attack means there is little marginal interest in the release of this
additional material. This argument does not persuade, because this case has
generated public interest in its own right. It involves a specific finding of fact by a
Congressional Commission and has been publicly called into question by a former
U.S. Senator who served on the 9/11 Commission. The FBI contributed to this
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public interest in the case when it publicly disputed the Bulldog’s initial 2011
article on the al-Hijjis. Therefore, even when evaluating the “public interest . . . in
light of all that is already known,” there remains sufficient public interest in the
disclosures ordered by the District Court. See Mordenti, 331 F.3d at 804.
c. Balancing
In addition to the arguments discussed above, the FBI generally asserts the
District Court erred in balancing the relevant interests under Exemption 7(C). This
argument is again undercut by the FBI’s persistent failure to point to the specific
redaction decisions with which it disagrees. Nevertheless, the Majority Opinion
says the balance cuts in favor of nondisclosure because the Bulldog has failed to
establish a significant public interest under FOIA. I do not agree with this ruling.
I would affirm the District Court because I believe there is public interest in the
materials sought by the Bulldog.
II. EXEMPTION 7(E)
My other area of disagreement is with the Majority’s analysis of certain
redactions under Exemption 7(E). This exempts from FOIA disclosure those
records or information compiled for law enforcement purposes, which if produced
“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
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of the law.” 5 U.S.C. § 552(b)(7)(E). My disagreement with the Majority
Opinion’s application of Exemption 7(E) extends to Document 22 only.
Document 22 is an April 2014 PowerPoint slideshow entitled “Overview of
9/11 Investigation.” I agree with the Majority that Slides 56 and 57, which
generally discuss certain facts about the investigation into Walid bin Attash, should
be disclosed, as they do not fall within Exemption 7(E) (or Exemption 5). I also
agree with the Majority that consideration of Slide 13, which contains a grainy
photograph taken by a security camera in an unknown location, should be
remanded to the District Court in order to permit the FBI to supplement the record
with additional details about the camera. However, I do not agree with the
remainder of the Majority Opinion’s rulings on Document 22.
Slides 19 and 20 contain certain findings of the FBI’s investigation. The
FBI has redacted particular bullet points discussing information relevant to the
9/11 hijackers’ finances and identification. The FBI and the Majority Opinion say
redaction is appropriate because these bullet points reveal how the hijackers could
“stay ‘under the radar’” and that disclosure would enable future suspects to employ
these “undetected methods.” This explanation sounds reasonable on the surface,
but is undercut by the production of the other portions of these slides, which
demonstrate how the hijackers “Adapted to U.S. Society” and the communication
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methods they used to avoid detection. The FBI’s position in this regard is not
consistent.
Next, the FBI redacted everything but the title of Slide 24, which concerns
when the 9/11 pilots and intended pilots arrived in the United States. Similar
content has been redacted from Slides 31 through 36, which discuss the activities
of the hijackers in the months leading up to 9/11. Because these slides are pure
factual recaps of generally known topics of interest without any discussion or
analysis of law enforcement techniques or intelligence gathering, they too should
be disclosed.
Four additional slides—Slides 29, 30, 37, and 47—discuss the hijackers’
finances. But like the slides containing the historic information outlined above,
these slides contain no analysis, no discussion of techniques, and no explanation of
how the conspirators avoided detection. Notably, the FBI recognizes that “it is
common knowledge” that it would investigate the conspirators’ financing. As a
purely factual recap of the crime, these slides should be disclosed.
Finally, the FBI has redacted everything but the title—“Ongoing
Investigation”—from Slides 55, 58, 59, and 60. The FBI argues these slides
should be redacted because they discuss “investigative leads and the sources of
data the FBI finds useful” and “investigative leads derived from forensic analysis.”
But it is not clear from this explanation what “techniques and procedures” or
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“guidelines” would be revealed by disclosure. Given that these slides indicate they
discuss ongoing investigations, there is some risk that release could lead to
circumvention of the law, so I would remand consideration of these slides to give
the FBI an opportunity to explain to the District Court the techniques and
procedures at issue.4
The Majority Opinion says the redacted material in these slides “reveal the
data considered relevant by the [FBI], the specific factors considered in the
investigation, and the commonalities and patterns detected (and not detected) by
the [FBI] when analyzing the data,” thus warranting protection under Exemption
7(E). Maj. Op. at 55. But the Majority does not explain how this is so, beyond its
conclusory statement that “almost all of these passages expose aspects of the
[FBI’s] investigative and analytical methodologies.” Id. I worry that this cursory
analysis of the connection between these slides and the FBI’s claimed techniques
and procedures could allow government agencies to redact all factual information
4
These slides are now indisputably old. What might have been an ongoing investigation
at the time the slides were produced may no longer be ongoing. Also, the FBI redacts these
slides under Exemption 5, which permits withholding of “inter-agency or 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). Material withheld under this exemption “must
be . . . a direct part of the deliberative process in that it makes recommendations or expresses
opinions on legal or policy matters.” Miccosukee Tribe of Indians of Fla. v. United States, 516
F.3d 1235, 1263 (11th Cir. 2008) (quotation marks omitted). While the slides outline some
general topics of ongoing investigations, they do not appear to be related to any legal or policy
matter. At the very least, that information is not “a direct part” of a policy decision-making
process. See id. (quotation marks omitted). I believe that redaction of these slides under
Exemption 5 is not appropriate and would not let it stand in the way of a remand to the District
Court. The Majority, meanwhile, does not reach the issue. See Maj. Op. at 60.
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gathered in the course of any investigation as potentially revelatory of confidential
strategies. That said, I understand there are circumstances in which such
information could overlap with law enforcement techniques and procedures. For
example, in Allard K. Lowenstein International Human Rights Project v.
Department of Homeland Security, 626 F.3d 678 (2d Cir. 2010), the Second
Circuit posited that Exemption 7(E) could be used to block release of information
pertaining to the subjects of an investigation, if such information could reveal the
scope of the investigation. See id. at 682. But the FBI has made no such argument
here. Again here, the FBI claims only generally that disclosure of financial
information could reveal “how much money one can move around, what form is
more or less detectable, through what means, and where to avoid so as not to
attract attention,” and that information about vulnerabilities in U.S. airports “would
provide a criminal with insight into how to successfully plan future criminal acts
without detection.” These arguments are too broad to persuade me regarding the
information at issue in these slides. I would not permit redaction of these slides.
* * * * *
I am well aware of the difficulty of balancing the public’s right to know
what its government is up to, and the government’s right to secrecy. I commend
the Majority Opinion for its treatment of these sensitive topics. Nevertheless, I do
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not believe the FBI has made a sufficient legal case for all the redactions the
Majority permits. I therefore respectfully dissent as set forth above.
79