Hamdan v. United States Department of Justice

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NAJI JAWDAT HAMDAN; HOSSAM No. 13-55172
HEMDAN; ACLU FOUNDATION OF
SOUTHERN CALIFORNIA, D.C. No.
Plaintiffs-Appellants, 2:10-cv-06149-
DSF-JEM
v.
UNITED STATES DEPARTMENT OF OPINION
JUSTICE; FEDERAL BUREAU OF
INVESTIGATION, a component of the
U.S. Department of Justice; U.S.
NATIONAL CENTRAL BUREAU-
INTERPOL, a component of the U.S.
Department of Justice; NATIONAL
SECURITY DIVISION, a component of
the U.S. Department of Justice;
DEPARTMENT OF STATE; UNITED
STATES CENTRAL INTELLIGENCE
AGENCY; UNITED STATES
DEPARTMENT OF DEFENSE; DEFENSE
INTELLIGENCE AGENCY, a
component of the U.S. Department
of Defense; DEFENSE OFFICE OF
FREEDOM OF INFORMATION, a
component of the U.S. Department
of Defense; BUREAU OF CUSTOMS &
BORDER PROTECTION, a component
of the U.S. Department of Homeland
Security; TRANSPORTATION
2 HAMDAN V. U.S. DEP’T OF JUSTICE
SECURITY ADMINISTRATION, a
component of the U.S. Department
of Homeland Security; OFFICE OF
DIRECTOR OF NATIONAL
INTELLIGENCE; U.S. DEPARTMENT
OF HOMELAND SECURITY;
IMMIGRATION AND CUSTOMS
ENFORCEMENT, a component of the
U.S. Department of Homeland
Security; OFFICE OF INTELLIGENCE
AND ANALYSIS, a component of the
U.S. Department of Homeland
Security,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Argued and Submitted
March 2, 2015—Pasadena California
Filed August 14, 2015
Before: Ronald M. Gould and Richard C. Tallman, Circuit
Judges, and Edward R. Korman, Senior District Judge.*
Opinion by Judge Gould
*
The Honorable Edward R. Korman, Senior District Judge for the U.S.
District Court for the Eastern District of New York, sitting by designation.
HAMDAN V. U.S. DEP’T OF JUSTICE 3
SUMMARY**
Freedom of Information Act
The panel affirmed in part, and vacated and remanded in
part, the district court’s summary judgment in favor of
several federal agencies in plaintiffs’ suit under the Freedom
of Information Act (“FOIA”), arising from their request for
information from a myriad of federal agencies about federal
investigations related to Naji Hamdan and any U.S. role in his
detention and torture by United Arab Emirates.
The panel affirmed the district court’s rulings as to the
adequacy of the agencies’ search and the application of FOIA
exemptions. The panel held that the State Department and
the Federal Bureau of Investigation complied with their
obligations to search for records under FOIA. The panel also
held that the government properly withheld records under
FOIA Exemption 1 (which protects national security
information), Exemption 3 (which protects records exempt
from disclosure pursuant to a separate statute); and
Exemption 7(E) (which protects some records compiled for
law enforcement purposes). Specifically, the panel affirmed
the district court’s holding that the Defense Intelligence
Agency properly withheld records under Exemption 3
because those records were protected under 10 U.S.C. § 424.
FOIA provides that any “reasonably segregable portion
of a record shall be provided to any person requesting such
record after deletion of the portions which are exempt under
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 HAMDAN V. U.S. DEP’T OF JUSTICE
this subsection.” 5 U.S.C. § 552(b). The panel held that the
district court erred by not making findings on the issue of
segregability. As to all the records whose existence was not
itself classified, the panel directed the district court to
determine on remand whether there was any content that
could be segregated from the exempt information and turned
over to plaintiffs.
COUNSEL
Ahilan T. Arulanantham and Michael Kaufman, ACLU
Foundation of Southern California, Los Angeles, California;
Laboni A. Hoq (argued), Zulaikha Aziz, and Nicole Gon
Ochi, Asian Americans Advancing Justice–Los Angeles, Los
Angeles, California, for Plaintiffs-Appellants.
Stuart F. Delery, Assistant Attorney General, Matthew M.
Collette and H. Thomas Byron III (argued), Attorneys, Civil
Division, Appellate Staff, United States Department of
Justice, Washington, D.C.; André Birotte, Jr., United States
Attorney, Los Angeles, California, for Defendants-Appellees.
HAMDAN V. U.S. DEP’T OF JUSTICE 5
OPINION
GOULD, Circuit Judge:
Naji Hamdan, Hossam Hemdan, and the ACLU
Foundation of Southern California (collectively, “Plaintiffs”)
appeal the district court’s grant of summary judgment to
several federal agencies in Plaintiffs’ suit under the Freedom
of Information Act (“FOIA”). Plaintiffs contend that: (1) two
agencies did not conduct adequate searches for records
responsive to Plaintiffs’ FOIA request; (2) two agencies
improperly invoked several exemptions to FOIA’s disclosure
requirements; and (3) the district court erred in not making
findings of fact about whether there was non-exempt
information in the withheld records that could be segregated
and disclosed. We have jurisdiction under 28 U.S.C. § 1291.
Because the Federal Bureau of Investigation (“FBI”) and the
State Department conducted searches reasonably calculated
to produce records responsive to Plaintiffs’ request, and
because the FBI and the Defense Intelligence Agency
(“DIA”) properly withheld some records under several
exemptions to FOIA’s disclosure requirements, we affirm the
district court’s rulings on the adequacy of the agencies’
searches or the invocation of the challenged exemptions. But
because the district court did not make any findings as to
whether there was non-exempt information in the withheld
records that could reasonably be segregated and disclosed,
and we cannot say on this record that the error was harmless,
we vacate the grant of summary judgment and remand this
case to the district court for a segregability analysis.
6 HAMDAN V. U.S. DEP’T OF JUSTICE
I
Hamdan, a U.S. citizen born in Lebanon, moved to the
United States in 1984, moved to the United Arab Emirates
(“U.A.E.”) in 2006, and in 2009 was deported from the
U.A.E. to Lebanon, where he now lives.1 While in the United
States, Hamdan owned an auto-parts business, Hapimotors.
Hamdan was a founding member and sometime-volunteer
imam at the Islamic Center of Hawthorne, a mosque in
Hawthorne, California. Hemdan, Hamdan’s brother, is also
a U.S. citizen and has lived in the United States since 1987.
Hemdan now owns Hapimotors.
Since 1999, the FBI has questioned the brothers several
times, asking whether either was involved with terrorism and
about members of the mosque Hamdan attended. Other
friends, relatives, and business associates were also
questioned, including Jehad Suliman, then the manager of
Hapimotors.
In 2006, Hamdan moved with his wife and children to the
U.A.E., where he started a new business. On a brief visit to
the United States several months later, Hamdan was
questioned by federal agents for several hours after he
arrived, and thought that he was followed by federal agents
throughout his trip. In 2007, Hamdan’s wife and children
moved to Lebanon. In July 2008, Hamdan met with three
FBI agents—two from California and one from the FBI’s
Legal Attaché Office in the U.A.E.—at the U.S. Embassy in
Abu Dhabi to discuss an incident in January 2008 when
1
Unless otherwise noted, the facts are drawn from evidence submitted
by the parties in litigating the summary judgment motion, and Plaintiffs’
version of events is credited wherever there is a factual dispute.
HAMDAN V. U.S. DEP’T OF JUSTICE 7
Hamdan had been detained and abused by Lebanese
intelligence officials while visiting his family in Lebanon.
A month after that meeting, on August 26, 2008, Hamdan
was detained by the U.A.E. State Security service without
explanation. He was held in a secret location for three
months and tortured to extract false confessions of
involvement with terrorist activity. While in the secret
facility, Hamdan was approached by an English-speaker with
an American accent, whose shoes and pants, which Hamdan
could see under his blindfold, appeared Western. The man
warned Hamdan to cooperate with the State Security or he
would be harmed. On October 19, 2008, Hamdan was visited
by a U.S. consular official, to whom Hamdan was too afraid
to speak about his torture because there were State Security
officials present.
On August 28, 2008, days after Hamdan was detained, his
wife informed the U.S. Consulate in Dubai, and Hemdan
contacted the FBI in Los Angeles. But the consular visit
mentioned above did not occur until mid-October. Unsatisfied
with what they perceived as an insufficient response, in
November 2008, Hamdan’s family filed a habeas corpus
petition in the U.S. District Court for the District of
Columbia, contending that the U.S. government was
complicit in Hamdan’s detention. Hamdan was released from
detention a week after the petition was filed, and transferred
to a regular prison for criminal suspects. Hamdan was
convicted of terrorism-related offenses by an Emerati court.
He was sentenced to time served and deported to Lebanon.
In July 2010, Plaintiffs filed a FOIA request seeking
information from a myriad of federal agencies about federal
investigations related to Hamdan and any U.S. role in his
8 HAMDAN V. U.S. DEP’T OF JUSTICE
detention and torture by U.A.E. officials. They asked for
“any records . . . relating to or concerning” Hamdan,
Hemdan, Jehad Suliman, or Hapimotors, that were “prepared,
received, transmitted, collected and/or maintained” by the
Departments of Justice, State, Defense, and Homeland
Security, and the Central Intelligence Agency “and any of
their sub-agencies or divisions.”
In August 2010, Plaintiffs filed a FOIA complaint in the
district court. The State Department searched the record
systems of eleven internal offices or components, as well as
the U.S. Embassies in Abu Dhabi and Beirut and the U.S.
Consulate General in Dubai. The State Department did not
search the records of its Bureau of Political-Military Affairs.
The Bureau is the State Department’s main link to the
Defense Department, and provides “policy direction in the
areas of international security, . . . [and] military operations”
and “has the Departmental lead on . . . defense relations, . . .
and analyzing broad trends in international security affairs to
determine their effect on U.S. policies.” In response to the
FOIA request and to the suit, the State Department identified
1177 responsive records, releasing 533 documents in full and
258 in part, and withholding 386 documents in full, before
later identifying additional documents. Of the documents
released, one email mentioned communication between a
consular officer who visited Hamdan in detention and “Abu
Dhabi Pol/Mil,” and another email sent to the consular officer
suggested that he “ask POL Mail [sic] (they are UAE State
Security counterpart) to assist” in getting consular access to
Hamdan while he was detained in the U.A.E. But the State
Department’s affidavit explaining its FOIA response said that
no search was made of the Bureau’s records because despite
those mentions of an Abu Dhabi-based official, there appears
to be no indication that the Bureau was involved in matters
HAMDAN V. U.S. DEP’T OF JUSTICE 9
related to Hamdan and no indication of a connection between
Plaintiffs and the military functions performed by the Bureau.
The FBI searched its Central Records System (“CRS”),
which is an archive of its “administrative, applicant, criminal,
personnel and other files compiled for law enforcement
purposes,” but which the FBI also uses for responding to
FOIA requests. The search was done using the Automated
Case Support System, an index system which enables
searches. According to the FBI’s declarations justifying its
searches and exemptions filed in the district court, the
“decision to index names other than subjects, suspects, and
victims is a discretionary decision made by the FBI Special
Agent . . . assigned to work on the investigation, the
Supervisory [Special Agent] in the field office conducting the
investigation, and the SSA at” FBI headquarters. “The FBI
does not index every name in its files; rather, it indexes only
that information considered to be pertinent, relevant, or
essential for future retrieval.” The FBI also searched its
Electronic Surveillance (“ELSUR”) indices, which maintain
information on communications intercepted by FBI
surveillance.
The FBI searches identified 771 pages of responsive
records, of which 521 pages were disclosed in full or in part,
and 250 pages were withheld in full. The withholdings were
justified under FOIA Exemptions 1, 2, 5, 6, 7(C), 7(D), and
7(E) to FOIA’s disclosure requirements.2 The DIA’s search
(the adequacy of which Plaintiffs do not challenge), identified
2
Of the exemptions claimed by the FBI, Plaintiffs appeal only the
applicability of Exemptions 1 and 7(E).
10 HAMDAN V. U.S. DEP’T OF JUSTICE
twenty-seven responsive records, but all were withheld under
Exemptions 1, 2, 3, and 6.3
The district court granted summary judgment to the
agencies. The district court held that the government’s
searches were adequate, and specifically that it was
reasonable for the State Department not to search the Bureau
of Political-Military Affairs records because there was no
reason to think Hamdan, his family, or his business associates
were involved in any of the military activities within the
Bureau’s purview. The district court also held that the FBI
and the DIA had properly withheld records under Exemption
1 for classified material, because the classification claims
were sufficiently supported by the declarations and there was
no reason to doubt the truth or good faith of those
declarations. Further, the court held that the DIA properly
withheld documents under Exemption 3 “because 10 U.S.C.
§ 424 prevents the disclosure of DIA activities and
organization,” and that the FBI had justifiably withheld
records under Exemption 7(E). Plaintiffs timely appealed.
II
We review summary judgment orders in FOIA cases in a
two-step process. Berman v. CIA, 501 F.3d 1136, 1139 (9th
Cir. 2007). First, we review de novo whether the documents
submitted by the agencies give an adequate factual basis for
the district court’s decision. Id. If there is an adequate
factual basis, we then determine “whether the district court’s
decision regarding [the] applicability of FOIA’s exemptions
was correct.” Id. Factual findings are reviewed for clear
error, but legal conclusions, including whether a document
3
Only DIA’s invocations of Exemptions 1 and 3 are before us.
HAMDAN V. U.S. DEP’T OF JUSTICE 11
fits within one of FOIA’s exemptions, are reviewed de novo.
Id.
We review “whether [an agency’s] indices and supporting
declarations constitute a sufficient Vaughn index4 de novo.”
Citizens Comm’n on Human Rights v. FDA, 45 F.3d 1325,
1328 (9th Cir. 1995).
Where the government invokes FOIA exemptions in cases
involving national security issues, we are “required to accord
‘substantial weight’ to [the agency’s] affidavits.” Hunt v.
CIA, 981 F.2d 1116, 1119 (9th Cir. 1992) (quoting Miller v.
Casey, 730 F.2d 773, 776, 778 (D.C. Cir. 1984)). Those
affidavits “must describe the justifications for nondisclosure
with reasonably specific detail, demonstrate that the
information withheld logically falls within the claimed
exemptions, and show that the justifications are not
controverted by contrary evidence in the record or by
evidence of [agency] bad faith.” Id.
4
A “Vaughn index” is a document supplied by government agencies to
opposing parties and the court that identifies “each document withheld, the
statutory exemption claimed, and a particularized explanation of how
disclosure of the particular document would damage the interest protected
by the claimed exemption,” and the index is designed to provide reasoning
against which the requester can offer effective advocacy and a basis for
the court to reach a reasoned decision. Wiener v. FBI, 943 F.2d 972, 977
(9th Cir. 1991). “There is no fixed rule establishing what a Vaughn index
must look like, and a district court has considerable latitude to determine
its requisite form and detail in a particular case.” ACLU v. CIA, 710 F.3d
422, 432 (D.C. Cir. 2013). The term derives from the D.C. Circuit’s
decision in Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973).
12 HAMDAN V. U.S. DEP’T OF JUSTICE
III
Government transparency is critical to maintaining a
functional democratic polity, where the people have the
information needed to check public corruption, hold
government leaders accountable, and elect leaders who will
carry out their preferred policies. Consequently, “FOIA was
enacted to facilitate public access to [g]overnment
documents” by “establish[ing] a judicially enforceable right
to secure [government] information from possibly unwilling
official hands.” Lahr v. Nat’l Transp. Safety Bd., 569 F.3d
964, 973 (9th Cir. 2009) (internal quotation marks omitted).
FOIA recognizes that “an informed citizenry [is] vital to the
functioning of a democratic society.” Dep’t of Interior v.
Klamath Water Users Protective Ass’n, 532 U.S. 1, 16 (2001)
(internal quotations omitted). In response to a FOIA request,
government agencies must conduct a reasonable search to
find any documents responsive to the request. Lahr, 569 F.3d
at 986. But “FOIA contemplates that some information may
legitimately be kept from the public” if it falls into one of
nine enumerated exemptions in the statute. Id. at 973.
Government agencies may not rely merely on a need for
heightened national security to justify erosion of statutory
entitlements to information, because we will hold agencies to
FOIA’s requirements. Our decision today relates to
intelligence and law enforcement records. Affidavits such as
those submitted by the agencies here may not be sufficient in
other contexts to satisfy the requirements of reasonable
specificity in explaining why the contents of certain records
cannot be disclosed. We will not, in cases raising issues of
national security, abdicate our role to ensure that Congress’s
commands in FOIA are followed. But when dealing with
properly classified information in the national security
HAMDAN V. U.S. DEP’T OF JUSTICE 13
context, we are mindful of our limited institutional expertise
on intelligence matters, as compared with the executive
branch. And we are also aware that it is in the nature of
intelligence data that disclosure of small pieces of a puzzle
may be aggregated and considered in context by an adversary,
giving some risk even to explication of grounds for
withholding documents.
In this case, the State Department and the FBI met their
obligations to conduct an adequate search for responsive
records and the FBI and the DIA demonstrated that the
information they withheld from Plaintiffs fell within the
statutorily enumerated exemptions. But the district court
must determine whether there is any information in the
withheld records that can reasonably be separated from the
properly withheld information and disclosed to Plaintiffs.
A. The FBI’s and State Department’s searches were
adequate.
Plaintiffs argue that the FBI’s and the State Department’s
searches for responsive records were not adequate. We
disagree and affirm the district court’s ruling on the adequacy
of the searches.
“FOIA requires an agency responding to a request to
‘demonstrate that it has conducted a search reasonably
calculated to uncover all relevant documents.’” Id. at 986
(quoting Zemansky v. EPA, 767 F.2d 569, 571 (9th Cir.
1985)). An agency can demonstrate the adequacy of its
search through “reasonably detailed, nonconclusory affidavits
submitted in good faith.” Zemansky, 767 F.2d at 571.
Affidavits submitted by an agency to demonstrate the
adequacy of its response are presumed to be in good faith.
14 HAMDAN V. U.S. DEP’T OF JUSTICE
Grand Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C.
Cir. 1981). In evaluating the adequacy of the search, the
issue “is not whether there might exist any other documents
possibly responsive to the request, but rather whether the
search for those documents was adequate.” Lahr, 569 F.3d
at 987. “[T]he failure to produce or identify a few isolated
documents cannot by itself prove the searches inadequate.”
Id. at 988.
Though Lahr made clear that a search is not inadequate
for failure to turn up a single document, see id. at 987 (citing
Iturralde v. Comptroller of Currency, 315 F.3d 311, 315
(D.C. Cir. 2003)), it may be the case that “if a review of the
record raises substantial doubt, particularly in view of well-
defined requests and positive indications of overlooked
materials, summary judgment is inappropriate,” Iturralde,
315 F.3d at 314 (quotation omitted). But in a case we cited
approvingly in Lahr, the Eighth Circuit rejected a FOIA
requester’s challenge that the State Department had
conducted an inadequate search because the requester had
repeatedly identified certain documents that were not located
or released to him but were referenced in records that the
State Department did release. See Miller v. U.S. Dep’t of
State, 779 F.2d 1378, 1384–85 (8th Cir. 1985) (“The fact that
a document once existed does not mean that it now exists . . .
[and] the Department 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.”).
The State Department’s search was reasonably calculated
to uncover all records responsive to Plaintiffs’ FOIA request.
Even though the Department did not search the records of the
Bureau of Political-Military Affairs, there is no reason to
HAMDAN V. U.S. DEP’T OF JUSTICE 15
doubt the good faith of the Department’s declaration that
there is no apparent connection between Hamdan and the
military matters within the Bureau’s purview. Plaintiffs point
to the two emails the State Department’s search revealed
mentioning, respectively “Abu Dhabi Pol/Mil,” and getting
in touch with “Pol Mail [sic]” as the liaison to U.A.E. State
Security. But first, these are exactly the sort of isolated
records that Lahr says do not undermine the adequacy of a
search. Second, the State Department did search the records
of the U.S. Embassy in Abu Dhabi, which would likely have
uncovered any communications with “Abu Dhabi Pol/Mil.”
More light may be shed on the role of “Abu Dhabi Pol/Mil”
in the records that the State Department searched turned up
but whose contents were withheld under FOIA’s exemptions.
Plaintiffs do not challenge the propriety of the State
Department’s withholding records.
We hold that the FBI’s search was also reasonably
calculated to locate responsive records. Plaintiffs contend
that the FBI should have searched for records from the FBI’s
field offices in Los Angeles and Long Beach, California, the
email files of specific FBI personnel, and the records of the
FBI Legal Attaché in Abu Dhabi. The crux of their argument
is the FBI did not conduct an adequate search because: (1) the
FBI admits that the “decision to index names [in the CRS]
other than subjects, suspects, and victims is a discretionary
decision made by” FBI personnel; (2) the FBI admits that not
every email sent by or to every agent will be preserved; and
(3) the State Department searches located communications
between FBI and State Department officials that the FBI’s
search did not identify. We disagree.
First, the FBI affidavits state that the CRS and ELSUR
systems together constitute the means by which the FBI
16 HAMDAN V. U.S. DEP’T OF JUSTICE
maintains its records for use in investigations. The FBI’s
decision to search those databases, using many variations of
the terms suggested by Plaintiffs to account for spelling or
other inconsistencies, was a “diligent search for . . .
documents in the places in which they might be expected to
be found.” Miller, 779 F.2d at 1385. Plaintiffs’ suggestion
that the FBI might be under-inclusive in uploading and
indexing records in the CRS to avoid FOIA disclosures is
unpersuasive. The CRS is used primarily as a law
enforcement tool to provide FBI personnel with a
comprehensive, searchable database for information to aid in
their mission. An under-inclusive approach to indexing
would undercut the CRS’s investigative value.
Second, we reject Plaintiffs’ reliance on Campbell v. U.S.
Dep’t of Justice, 164 F.3d 20, 28–29 (D.C. Cir. 1998), which
held that the FBI’s search of the CRS was insufficient if other
databases are likely to turn up the information requested. In
Campbell, the court explained that an agency has discretion
to conduct a standard search in response to a general request,
but must rethink its assessment of what is a “reasonable”
search in light of leads that emerge from its initial search that
suggest other records might be located elsewhere. Campbell,
164 F.3d at 28. But Campbell dealt with the FBI’s failure to
search its ELSUR database where records located by the CRS
search alluded to potentially responsive ELSUR records.
Here, the FBI did search its ELSUR records. Moreover,
Plaintiffs have made no showing that by the close of the
FBI’s search, leads had emerged suggesting a need to search
other databases. Cf. id. That records identified by the State
Department’s search months later indicated that a few
documents may not have been located by the FBI is not
enough for us to call the FBI’s search unreasonable or
inadequate.
HAMDAN V. U.S. DEP’T OF JUSTICE 17
Plaintiffs were entitled to a reasonable search for records,
not a perfect one. And a reasonable search is what they got.
The State Department and the FBI complied with their
obligations to search for records under FOIA.
B. The government properly withheld records under
FOIA Exemptions 1, 3, and 7(E).
FOIA’s strong presumption in favor of disclosure places
the burden on the government to show that an exemption
properly applies to the records it seeks to withhold. Lahr,
569 F.3d at 973. But we also give considerable deference to
agency affidavits made in apparent good faith where the
affadavits reasonably describe the justifications for
nondisclosure and show that the content withheld falls within
one of FOIA’s exemptions. See Hunt, 981 F.2d at 1119. We
conclude that the FBI and the DIA adequately justified their
withholding of records under FOIA’s exemptions.
After a careful and searching review of the record, we
have no reason to doubt the agencies’ good faith. Affidavits
submitted by an agency to demonstrate the adequacy of its
FOIA response are presumed to be in good faith. Grand
Saucer Watch, 692 F.2d at 771. As the Supreme Court
cautioned in a case involving FOIA, government misconduct
is “easy to allege and hard to disprove, so courts must insist
on a meaningful evidentiary showing.” Nat’l Archives &
Records Admin. v. Favish, 541 U.S. 157, 175 (2004) (internal
quotation marks and citation omitted). Plaintiffs have made
no such meaningful showing here, despite peppering their
briefs with allegations of FBI involvement in Hamdan’s
abduction and torture by Emirati authorities, and suggestions
that the agencies’ withholdings in this case are calculated to
cover up proxy detention practices that allegedly would allow
18 HAMDAN V. U.S. DEP’T OF JUSTICE
suspects to be detained and tortured by foreign governments.
But there has been no evidence produced in this case to give
us good reason to doubt the agencies’ good faith. The State
Department communications that were disclosed reveal that
State Department personnel sought—and obtained—consular
access to Hamdan while he was detained and advised the
U.A.E. government that denying Hamdan consular access and
the delay in consular notification was a violation of the
U.A.E.’s treaty obligations. Plaintiffs’s contentions seem
based on coincidence and conjecture: the FBI questioned
Hamdan in the U.A.E. several weeks before his detention,
Hamdan was transferred to a regular detention facility from
his secret location shortly after his family’s habeas corpus
petition was filed, and Hamdan was questioned by someone
he thought was an American. But these facts do not prove,
and they barely suggest, that the FBI was involved in
Hamdan’s detention. It is certainly not the meaningful
evidentiary showing the Supreme Court says is needed to
undermine the presumption of good faith.
1. The FBI and DIA properly withheld records under
Exemption 1.
Exemption 1 protects national security information, and
specifically exempts from disclosure records that are:
“(A) specifically authorized under criteria established by an
Executive order to be kept secret in the interest of national
defense or foreign policy and (B) are in fact properly
classified pursuant to such Executive order.” 5 U.S.C.
§ 552(b)(1).
The records withheld under Exemption 1 in this case are
classified under section 1.4 of Executive Order 13,526, which
protects, among other things, “foreign government
HAMDAN V. U.S. DEP’T OF JUSTICE 19
information,” “intelligence activities [and] intelligence
sources or methods,” and “foreign relations or foreign
activities of the United States, including confidential
sources.” 75 Fed. Reg. 707, 709 (Dec. 29, 2009). The parties
do not dispute the meaning of these phrases on appeal or that
Executive Order 13,526 provides classification criteria for
certain records. Rather, they dispute whether the FBI and the
DIA affidavits are sufficiently detailed to show that each
document withheld has been properly classified.
We held in Wiener that an agency must make an effort to
tailor the explanation for classification to the specific
document withheld. 943 F.2d at 979. In that case, a history
professor sought records concerning the FBI’s investigation
of John Lennon, of Beatles fame, in the 1960s and 1970s. Id.
at 976–77. To justify its Exemption 1 withholdings, the FBI
used “boilerplate” explanations taken from a “‘master’
response filed by the FBI for many FOIA requests.” Id. at
978. We concluded that the categorical approach to
explaining why documents were withheld did not give the
requester adequate opportunity “to argue for release of
particular documents.” Id. at 979. Unless the agency is as
specific as possible without thwarting Exemption 1’s purpose,
“the adversarial process is unnecessarily compromised.” Id.
But the Supreme Court, our court, and other circuits have
emphasized the importance of deference to executive branch
judgments about national security secrets, and that is what is
before us here. In Hunt, we held that where affidavits give
reasonably detailed justifications for withholding, and they
appear to be in good faith, the inquiry ends and the
nondisclosure is upheld. 981 F.2d at 1119; see also CIA v.
Sims, 471 U.S. 159, 179 (1985) (noting that decisions of CIA
director are given deference because of high stakes for
20 HAMDAN V. U.S. DEP’T OF JUSTICE
national security); Wilner v. NSA, 592 F.3d 60, 76 (2d Cir.
2009) (noting that courts should be deferential to executive
predominance in FOIA cases involving national security);
Berman, 501 F.3d at 1141–42 (observing that judges are not
well-positioned to evaluate the sufficiency of CIA
intelligence claims). Moreover, as the D.C. Circuit has
explained, there is nothing suspicious about agencies using
“the same or similar language in different affidavits
supporting FOIA exemptions [because] when the potential
harm to national security . . . is the same, it makes sense that
the agency’s stated reasons for nondisclosure will be the
same.” Larson v. Dep’t of State, 565 F.3d 857, 868 (D.C. Cir.
2009). Wiener itself, in discussing the FBI’s “boilerplate”
assertions, emphasized the conditional language in the FBI’s
Vaughn index, which included passages such as:
Information of this category is either specific
in nature or of a unique character, and thereby
could lead to the identification of a source.
For example, this information may contain
details obtained from a one-on-one
conversation between a source and another
individual. It may be of such detail that it
pinpoints a critical time frame or reflects a
special vantage point from which the source
was reporting. The information may be more
or less verbatim from a source’s report and
thus reveal a style of reporting peculiar to that
source along with other clues as to authorship,
such as handwritten or typewritten reports of
the informant. The nature of the information
may be such that only a handful of parties
would have access to it. It is the degree of
HAMDAN V. U.S. DEP’T OF JUSTICE 21
specificity of this information that endangers
the source’s continued anonymity . . . .
Wiener, 943 F.2d at 978 (emphasis added by the Wiener
court). Wiener does not mean that an agency can never repeat
language to justify withholding multiple records, but rather
that in the context of Wiener, the FBI had not shown why the
records at issue could not be opened up for public inspection.
“Ultimately, an agency’s justification for invoking a
FOIA exemption is sufficient if it appears ‘logical’ or
‘plausible.’” Larson, 565 F.3d at 862 (quoting Wolf v. CIA,
473 F.3d 370, 374–75 (D.C. Cir. 2007)). Sitting en banc in
Mohamed v. Jeppesen Dataplan, Inc., we affirmed the
dismissal of a civil suit under the state secrets doctrine.
614 F.3d 1070 (9th Cir. 2010) (en banc). Even the dissenters
in that case acknowledged that in FOIA cases, where
litigation is for the independent purpose of obtaining
disclosure of classified information, “the balance of interests
will more often tilt in favor of the Executive . . . . FOIA
therefore predictably entails greater deference to . . .
classification . . . .” Id. at 1096 n.9 (Hawkins, J., dissenting).
Here, awareness of our limited expertise relative to the
executive in national security matters leads us to conclude
that both the FBI and the DIA properly invoked Exemption
1 to withhold records whose contents were properly
classified.
In this case, the FBI’s explanations of its Exemption 1
withholdings discussed the general justifications for shielding
intelligence sources and methods and foreign government
information from public disclosure. But the affidavits also
explain the withholding of particular groups of documents.
For example, the FBI explained that one document reflected
22 HAMDAN V. U.S. DEP’T OF JUSTICE
a particular vantage point from which the source of the
intelligence might be identified, and that a group of
documents—each one identified by number—contains
detailed intelligence activities information gathered on a
specific individual or organization and that disclosure would
reveal the means used to gather the intelligence and the extent
of the FBI’s knowledge of a specific target during a specific
period in time. This has none of the conditional language we
found insufficient in Wiener, and we conclude that the FBI
has fairly provided as much detail as it can without
compromising the very secrets Exemption 1 is supposed to
protect. See Wiener, 943 F.2d at 979.
The DIA’s explanations are sparser and the question is
closer. After explaining the justifications for nondisclosure
of intelligence sources and methods generally in its affidavits,
the DIA’s Vaughn index used identical language for all but
one entry, saying that disclosure “would reveal intelligence
sources and methods and compromise the intelligence
information collection mission effectiveness of the
intelligence community.” But the entry for one document
withheld under Exemption 1 says that in addition to revealing
intelligence sources and methods, the document contained
foreign government information that if disclosed, would
damage U.S. relations with that government. See Exec. Order
13,526, § 1.4(d), 75 Fed. Reg. at 709. This detail suggests
that the same explanation was not repeated unthinkingly for
each document, and that no other information could be
revealed without revealing the very information Exemption
1 was designed to protect.
Plaintiffs argue that the DIA’s affidavits are less detailed
than the State Department’s. But FOIA only requires
reasonably specific justifications to enable a meaningful
HAMDAN V. U.S. DEP’T OF JUSTICE 23
adversarial process and review by the courts. The fact that
the State Department can divulge more details justifying its
withholdings than the DIA is unsurprising: the DIA’s entire
public mission is to provide intelligence collection and
analysis for the Defense Department. That may require more
secrecy for its records than many State Department
documents need.
Similarly, Plaintiffs argue that Wiener demands more
detail than what the DIA has offered here. We disagree.
Wiener demands that the government disclose what it can
without “thwarting the claimed exemption’s purpose.”
943 F.2d at 979 (alterations omitted). It is reasonable to say
that the government can explain its reasons for withholding
the records at issue in Wiener, relating to the government’s
investigation of John Lennon twenty years earlier, with more
detail than the records at issue here, in a case that relates to
current intelligence and law enforcement activity of the
government, including sensitive issues that may involve
possible cooperation with foreign governments.
“Minor details of intelligence information may reveal
more information than their apparent insignificance suggests
because, much like a piece of a jigsaw puzzle, [every detail]
may aid in piecing together other bits of information even
when the individual piece is not of obvious importance in
itself.” Larson, 565 F.3d at 864 (internal quotation marks and
citation omitted). Because here “[i]t is conceivable that the
mere explanation of why information must be withheld can
convey valuable information to a foreign intelligence
agency,” Sims, 471 U.S. at 179, we affirm the FBI’s and the
DIA’s invocations of Exemption 1.
24 HAMDAN V. U.S. DEP’T OF JUSTICE
2. The DIA properly withheld records under
Exemption 3.
Plaintiffs challenge the DIA’s justification for
withholding certain records under FOIA Exemption 3. We
agree with the district court that the DIA has met its burden
to justify withholding the content of certain records under
Exemption 3.
Exemption 3 protects records exempt from disclosure
pursuant to a separate statute. 5 U.S.C. § 552(b)(3). The
district court held that the DIA had properly withheld records
under Exemption 3 because those records were protected
under 10 U.S.C. § 424.5 Section 424 provides that no law
shall be interpreted to require disclosure of “(1) the
organization or any function of [the DIA]; or (2) the number
of [DIA personnel] or the name, official title, occupational
series, grade, or salary of any such person.” Id.
There is a two-step inquiry in deciding Exemption 3
questions. We ask first whether the statute identified by the
agency is a statute of exemption within the meaning of
Exemption 3, and then whether the withheld records satisfy
the criteria of the exemption statute. See Sims, 471 U.S. at
167. The answer to both inquiries is yes.
5
We need not decide whether the DIA properly invoked the National
Security Act of 1947 as an independent statutory basis for withholding
under Exemption 3 because the DIA invokes that statute’s protection of
records that would reveal sources or methods of intelligence, which is
coextensive with the analysis of the DIA’s Exemption 1 argument above.
But because of the need for the district court to undertake a segregability
analysis on remand, we must decide whether the content that the DIA
seeks to withhold as an agency “function” is covered by § 424.
HAMDAN V. U.S. DEP’T OF JUSTICE 25
The significance of § 424 for FOIA litigation is a question
of first impression among federal circuit courts. In this case,
the parties do not dispute that § 424 qualifies as a withholding
statute within the meaning of Exemption 3. Moreover, the
plain language of a statute stating that no law shall require
disclosure of certain records indisputably satisfies the criteria
of Exemption 3. See Sack v. CIA, 53 F. Supp. 3d 154, 174
n.17 (D.D.C. 2014) (holding that § 424 falls within the scope
of Exemption 3); Physicians for Human Rights v. U.S. Dep’t
of Defense, 778 F. Supp. 2d 28, 36 (D.D.C. 2011) (same); cf.
Wilner, 592 F.3d at 72 (holding that similarly worded
provision related to the National Security Agency falls under
Exemption 3).
As for the second step, the parties disagree about whether
the DIA has shown that the content withheld falls under
§ 424. Plaintiffs do not dispute that the DIA’s invoking § 424
was proper to shield phone numbers, names, and email
accounts of DIA personnel, as well as web addresses on the
DIA’s classified network. But the DIA also withheld the
names of the countries and intelligence organizations with
which the DIA shares intelligence, claiming that it would
reveal a “function” of the agency within the meaning of
§ 424.
We must interpret the word “function” in § 424.
Plaintiffs contend that § 424 covers only information related
to DIA organization and personnel, arguing that if “function”
referred to all the tasks that the DIA performs, the latter
provision protecting personnel information would be
superfluous. That is not so. Rather, reading § 424 to shield
only information about DIA personnel would effectively read
the first prong out of the statute. Understanding “function”
as referring to the DIA’s mission, but not to records unrelated
26 HAMDAN V. U.S. DEP’T OF JUSTICE
to any DIA tasks would not make the prong shielding
personnel information meaningless. For example, an
aggrieved employee considering litigation about
discriminatory or other inappropriate conduct might seek
records of prior, similar conduct, which would not be exempt
from disclosure under the first prong of § 424. While the
DIA’s actual human resources and discrimination policies
might be “functions,” records of, for example, inappropriate
emails would not be, though the names and contact
information of the DIA personnel involved could be withheld
under § 424’s second prong, giving meaning to the entire
statute.
Plaintiffs cite Baker v. CIA, 580 F.2d 664, 669 (D.C. Cir.
1978), which interpreted a somewhat similar statute related
to the CIA and held that the statute only exempted records
related to CIA personnel from disclosure. But that statute
shielded “the organization, functions, names, official titles,
salaries, or numbers of personnel employed by the Agency.”
50 U.S.C. § 3507 (formerly 50 U.S.C. § 403g). Section 424,
by contrast, has separate provisions shielding, first, “the
organization or any function” of the DIA, and second,
information about DIA personnel. 10 U.S.C. § 424.
While it is publicly known that the DIA shares
intelligence with foreign governments—a “function” at the
highest level of generality—we conclude that the names of
the governments with which the DIA shares intelligence falls
within the category of properly withheld records under § 424.
Otherwise, some governments might face severe political
consequences from their constituents or allies due to
cooperation with U.S. intelligence services, and the DIA’s
ability to gather intelligence would be compromised.
HAMDAN V. U.S. DEP’T OF JUSTICE 27
The DIA’s Vaughn index is sufficiently detailed to justify
its Exemption 3 withholdings. For each document that would
identify the names of countries or agencies with which the
DIA shares intelligence, the index explained as much. We
cannot imagine what further detail the DIA could have
provided without actually naming the country or the
organization.
We affirm the district court’s conclusion as to
Exemption 3.
3. The FBI properly withheld records under
Exemption 7(E).
Plaintiffs contend that the FBI did not adequately justify
withholding certain records under Exemption 7(E). We
disagree.
Exemption 7(E) protects records compiled for law
enforcement purposes from disclosure if those records
“would disclose techniques and procedures for law
enforcement investigations or prosecutions, or would disclose
guidelines for law enforcement investigations or prosecutions
if such disclosure could reasonably be expected to risk
circumvention of the law.” 5 U.S.C. § 552(b)(7)(E). We
have held that “Exemption 7(E) only exempts investigative
techniques not generally known to the public.” Rosenfeld v.
U.S. Dep’t of Justice, 57 F.3d 803, 815 (9th Cir. 1995). In
Rosenfeld, we decided that a pretext phone call was a
generally known law enforcement technique. Id. In that
case, the government argued that the technique at issue
involved the specific application of a pretext phone call,
because it used “the identity of a particular individual, Mario
Savio, as the pretext.” Id. We rejected that argument,
28 HAMDAN V. U.S. DEP’T OF JUSTICE
reasoning that accepting it would allow anything to be
withheld under Exemption 7(E) because any specific
application of a known technique would be covered. Id.
Here, Plaintiffs challenge the complete withholding of
five documents and the partial withholding of ten under
Exemption 7(E). According to the FBI’s affidavit, those
records reveal “techniques and procedures related to
surveillance and credit searches,” and in one document, “a
stratagem, the details of which if revealed would preclude its
use in future cases.” It is true that credit searches and
surveillance are publicly known law enforcement techniques.
But the affidavits say that the records reveal techniques that,
if known, could enable criminals to educate themselves about
law enforcement methods used to locate and apprehend
persons. This implies a specific means of conducting
surveillance and credit searches rather than an application.
By contrast, withholding, for example, records under
Exemption 7(E) by claiming that they reveal the satellite
surveillance of a particular place would be an application of
a known technique under Rosenberg (though that information
might be protected by other exemptions). We conclude that
the affidavits, which state that further detail would
compromise the very techniques the government is trying to
keep secret, are sufficient to satisfy the FBI’s burden. Cf.
Bowen v. FDA, 925 F.2d 1225, 1229 (9th Cir. 1991) (holding
that additional details of law enforcement techniques were
exempt from disclosure under 7(E) even where some
information about those techniques had been previously
disclosed).
Plaintiffs also contend that the FBI must show that
disclosure would lead to a danger of future lawbreaking. The
exemption protects information that “would disclose
HAMDAN V. U.S. DEP’T OF JUSTICE 29
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). Plaintiffs argue that the FBI
must show that disclosure of its techniques would risk
circumvention of the law for Exemption 7(E) to apply. But
Plaintiffs’ argument is an unpersuasive reading of the
statutory text and structure. As the Second Circuit has
explained:
Beginning, as we must, with the plain
meaning of the statute’s text and structure, we
see no ambiguity. The sentence structure of
Exemption (b)(7)(E) indicates that the
qualifying phrase (“if such disclosure could
reasonably be expected to risk circumvention
of the law”) modifies only “guidelines” and
not “techniques and procedures.” This is
because the two alternative clauses that make
up Exemption 7(E) are separated by a comma,
whereas the modifying condition at the end of
the second clause is not separated from its
reference by anything at all. Thus, basic rules
of grammar and punctuation dictate that the
qualifying phrase modifies only the
immediately antecedent “guidelines” clause
and not the more remote “techniques and
procedures” clause.
Allard K. Lowenstein Int’l Human Rights Project v. Dep’t of
Homeland Security, 626 F.3d 678, 681 (2d Cir. 2010)
(citations omitted).
30 HAMDAN V. U.S. DEP’T OF JUSTICE
Finally, we reject Plaintiffs’ contention that Exemption
7(E) does not apply because the FBI is seeking to conceal
information about law enforcement techniques that are
“illegal or of questionable legality.” Wilkinson v. FBI, 633 F.
Supp. 336, 349 (C.D. Cal. 1986). We need not address
whether Exemption 7(E) is so limited because there is no
indication that any of the techniques being protected from
disclosure are of questionable legality. The techniques the
FBI seeks to protect from disclosure relate to surveillance and
credit searches, and Plaintiffs have made no showing of any
unlawful uses of such techniques. Plaintiffs assert that
Exemption 7(E) is being used to cover up the FBI’s use of
proxy detention, but as we discussed above, there has not
been a sufficient showing of the FBI’s bad faith and nothing
in the affidavits suggests that information about proxy
detention is in the records the FBI has withheld under
Exemption 7(E).
We affirm the district court’s ruling as to Exemption 7(E).
C. The district court erred by not making findings on the
issue of segregability.
FOIA provides that any “reasonably segregable portion of
a record shall be provided to any person requesting such
record after deletion of the portions which are exempt under
this subsection.” 5 U.S.C. § 552(b). We have held that “[i]t
is reversible error for the district court ‘to simply approve the
withholding of an entire document without entering a finding
on segregability, or the lack thereof,’ with respect to that
document.” Wiener, 943 F.2d at 988 (quoting Church of
Scientology v. U.S. Dep’t of the Army, 611 F.2d 738, 744
(9th Cir. 1979)). Wiener reversed the district court and
remanded with an instruction that the court “must make a
HAMDAN V. U.S. DEP’T OF JUSTICE 31
specific finding that no information contained in each
document or substantial portion of a document withheld is
segregable.” Id. “The burden is on the agency to establish
that all reasonably segregable portions of a document have
been segregated and disclosed.” Pac. Fisheries, Inc. v.
United States, 539 F.3d 1143, 1148 (9th Cir. 2008). The
agency can meet this burden by providing the district court
with a reasonably detailed description of the withheld
material and “alleging facts sufficient to establish an
exemption.” Id.
Here, we do not know whether the district court ensured
that the agency met its burden to establish that all reasonably
segregable material had been separated and disclosed. That
is because the only mention of segregability in the district
court’s order was its statement in a footnote that it need not
“undertake an independent segregability analysis on each
document if the documents are withheld for attorney-client or
work product privilege.” That statement is insufficient to
demonstrate that the district court considered segregability as
it relates to the FOIA exemptions invoked below.
Because we have previously held that it is reversible error
for the district court to approve the withholding of a
document without a segregability finding, we now remand to
the district court for such a finding. That said, we recognize
that there is conflicting guidance within our circuit as to what
constitutes a proper segregability analysis. Compare Weiner,
943 F.2d at 988 (holding that the district court must conduct
a careful de novo review of the agency and remanding for the
district court to make a specific finding for each document as
to segregability), with Pac. Fisheries, 539 F.3d at 1150
(holding that a district court may rely on an agency
declaration that is reasonably detailed and remanding for the
32 HAMDAN V. U.S. DEP’T OF JUSTICE
district court to make specific findings relating to
segregability for all documents). It is not reasonable to
interpret our precedent to require the district court to take on
the role of document clerk, reviewing each and every
document an agency withholds. A district court must take
seriously its role as a check on agency discretion, but this
does not require a page-by-page review of an agency’s work.
The district court may rely on an agency’s declaration in
making its segregability determination. Pac. Fisheries,
539 F.3d at 1148. Agency affidavits that are sufficiently
detailed are presumed to be made in good faith and may be
taken at face value. Hunt, 981 F.2d at 1119. In short, a
district court is not required to conduct an independent in
camera review of each withholding unless an agency
declaration lacks sufficient detail or bears some indicia of bad
faith by the agency. Of course, for those records, if any,
falling within a district court’s rulings on an agency’s
Glomar6 or § 552(c)7 submissions, no segregability analysis
would be necessary, because that would defeat the very
purpose of those doctrines.
6
The Glomar doctrine lets an agency refuse to confirm or deny whether
certain records exist. This is “an exception to the general rule that
agencies must acknowledge the existence of information responsive to a
FOIA request . . . [and is] permitted only when confirming or denying the
existence of records would itself cause harm cognizable under [a] FOIA
exception.” ACLU, 710 F.3d at 426 (quoting Wolf, 473 F.3d at 374)
(internal quotation marks omitted).
7
5 U.S.C. § 552(c) provides that FOIA does not apply in situations
concerning certain law enforcement and intelligence activities where even
whether certain records exist is classified.
HAMDAN V. U.S. DEP’T OF JUSTICE 33
Plaintiffs object to the withholdings by the State
Department, FBI, and DIA for two reasons. First, Plaintiffs
suggest that an agency must describe what proportion of each
document is non-exempt material and how that material is
dispersed throughout the document. Second, Plaintiffs
suggest that withholding a document in full or using large
block redactions is inappropriate. We disagree.
An agency must describe the document or information
being withheld in sufficient detail to allow the plaintiffs and
the court to determine whether the facts alleged establish the
corresponding exemption. Pac. Fisheries, 539 F.3d at 1148.
We have not held that the manner of that description must
take any particular format, so long as it is sufficiently
detailed. See id. In the interest of clarifying our circuit’s
segregability standard, we examine below whether and how
each agency complied with its obligations to establish “that
all reasonably segregable portions of [their documents] have
been segregated and disclosed.” Id.
The State Department’s declarations are sufficiently
detailed such that the district court could take them at face
value. The declarations identify the withheld documents
individually. They provide an individualized explanation of
the material being withheld. They identify the corresponding
exemption. And in some cases, they even note that the
“withheld portions are so inextricably intertwined with the
non-exempt portion, that any segregable material would not
be meaningful.” Moreover, there is ample evidence that the
State Department has acted in good faith in its dealings with
the district court and Plaintiffs, including re-reviewing
materials for release at Plaintiffs’ request and closely
scrutinizing what it releases. For example, the State
Department released a document to Plaintiffs in which there
34 HAMDAN V. U.S. DEP’T OF JUSTICE
was only one sentence that was not redacted. Rather than
withhold the entire document, the State Department took the
correct view that it was required to release any information
that was not classified, even if it was a single sentence.
Though the FBI’s declarations are not as robust as the
State Department’s, they are still sufficiently detailed to
enable the district court to take them at face value. The
declarations identify documents by number. They provide
specific reasons why the disclosure of information would be
harmful. And, the FBI specifically states that “[n]o
reasonably segregable, nonexempt portions were withheld
from plaintiffs.” This is supported by the partially redacted
documents that the FBI produced. These documents
demonstrate that the FBI released large portions of previously
classified material, redacting only the bare minimum of
information.
In contrast, the DIA’s declarations lack sufficient detail
to allow the district court to determine that the claimed
exemptions apply throughout all of the documents.8 The DIA
provides little individualized information about the withheld
documents. The first eighteen documents in the DIA’s
Vaughn index vary in length from two to eight pages; some
are classified Secret, some Top Secret. But all are completely
withheld for the same reason. The DIA claims their release
would “reveal intelligence sources and methods” without
8
Our concern with the adequacy of the segregability issue does not
undermine our previous holding, that the DIA properly withheld records
under FOIA Exemptions 1 and 3. See supra Sections III.B.1 and 2. The
DIA’s declarations are sufficiently detailed for the determinations in
Section III.B but simply lack the information necessary for a segregability
determination.
HAMDAN V. U.S. DEP’T OF JUSTICE 35
providing any detail about whether or not the DIA considered
releasing reasonably segregable information. Nor does the
DIA provide us with any evidence of its good faith. All of
the DIA’s documents are completely withheld, so the district
court did not have the opportunity to observe the DIA’s
approach to redaction. Moreover, some of the DIA’s
declarations are self-contradictory. In its initial declaration,
the DIA identifies twenty-seven responsive documents that
must be withheld in full because of “FOIA exemptions (b)(1),
(b)(2), (b)(3), and (b)(6).” Yet the attached Vaughn index
never invokes FOIA exemption (b)(2). Without further detail
from the DIA it is not possible for the district court to
presume that the DIA’s declarations are made in good faith.9
We vacate the grant of summary judgment solely on the
issue of segregability. As to all of the records whose
existence is not itself classified, the district court should
determine on remand whether there is any content that can be
segregated from the exempt information and turned over to
Plaintiffs.
IV
We affirm the district court’s rulings as to the adequacy
of the agencies’ search and the application of the FOIA
exemptions. After a careful and searching review of the
record, we are satisfied that the agencies made reasonable
searches for responsive documents, that they gave reasonably
specific justifications for withholding or redacting
documents, and that the agencies’ claims of FOIA exemption,
9
This detail may be provided in a variety of ways. For example, the
district court may request a supplemental declaration, a revised Vaughn
index, or an in camera review of the documents.
36 HAMDAN V. U.S. DEP’T OF JUSTICE
apart from the issue of segregability, should be held valid, as
the district court ruled. But we vacate the grant of summary
judgment and remand for the district court to make findings
as to segregability.
The parties shall bear their own costs.
AFFIRMED in part, VACATED and REMANDED in
part.