American Immigration Lawyers Ass'n v. Executive Office for Immigration Review

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 16, 2016 Decided July 29, 2016
No. 15-5201
AMERICAN IMMIGRATION LAWYERS ASSOCIATION,
APPELLANT
v.
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:13-cv-00840)
Julie A. Murray argued the cause for appellant. With her
on the briefs was Allison M. Zieve.
Javier M. Guzman, Deputy Associate Attorney General,
U.S. Department of Justice, argued the cause for appellees.
With him on the brief were R. Craig Lawrence and Jane M.
Lyons, Assistant U.S. Attorneys.
Before: HENDERSON, SRINIVASAN and MILLETT, Circuit
Judges.
Opinion for the Court filed by Circuit Judge SRINIVASAN.
2
SRINIVASAN, Circuit Judge: Immigration judges are
employees of the Department of Justice. The American
Immigration Lawyers Association submitted a request to the
Department under the Freedom of Information Act (FOIA)
seeking disclosure of records related to complaints about the
conduct of immigration judges. In response to the request, the
government disclosed thousands of pages of records. The
government, however, redacted information in those records
that it believes is either statutorily exempt from disclosure or
non-responsive to the request. The district court upheld both
categories of redactions. We disagree as to each.
First, the government invoked one of FOIA’s statutory
exemptions in redacting the immigration judges’ names from
all of the disclosed records. The government reasoned that, as
a blanket matter, the privacy interest of immigration judges in
avoiding disclosure of their names necessarily outweighs the
public’s interest in learning any of the judges’ names. We
conclude that the government’s across-the-board approach
cannot be sustained in light of the variety of privacy and
public interests that may be at stake in connection with the
disclosure of an immigration judge’s name. We therefore
remand for a more individualized inquiry into the propriety of
redacting judges’ names.
Second, with respect to the redactions based on non-
responsiveness, we find no statutory basis for redacting
ostensibly non-responsive information from a record deemed
responsive. Under the statutory framework, once the
government concludes that a particular record is responsive to
a disclosure request, the sole basis on which it may withhold
particular information within that record is if the information
falls within one of the statutory exemptions from FOIA’s
disclosure mandate. But the government in this case, after
determining that records were responsive to AILA’s request,
3
redacted discrete information within the records on the basis
of non-responsiveness even if no statutory exemption shielded
the information from disclosure. That approach cannot be
squared with the statutory scheme.
The final issue we confront concerns FOIA’s
establishment of an affirmative obligation to publish certain
types of information regardless of any request for disclosure.
The particular question is whether records documenting the
resolution of complaints against immigration judges fit within
the statutory criteria for affirmative disclosure. We agree
with the district court that complaint resolutions fall outside
the statute’s affirmative disclosure mandate.
I.
A.
Immigration judges are career civil-service employees in
the Department of Justice’s Executive Office of Immigration
Review (EOIR). 8 U.S.C. § 1101(b)(4). They preside over
“deportation, exclusion, removal, recission, and bond”
proceedings for noncitizens charged with violating the
immigration laws. Job Announcement at 2 (J.A. 334); 8
U.S.C. § 1101(b)(4); id. § 1229a. Their decisions are final
unless appealed to the Board of Immigration Appeals (BIA),
see 8 U.S.C. § 1101(a)(47)(B), and the BIA’s final decisions
are in turn subject to judicial review, see 8 U.S.C. § 1252(a).
In fiscal year 2015, only 8% of immigration judges’ decisions
were appealed to the BIA. EOIR, FY 2015 Statistics
Yearbook V1 (April 2016), https://www.justice.gov/eoir/page
/file/fysb15/download.
In 2006, in the face of mounting public concerns about
“immigration judges who fail to treat aliens appearing before
4
them with appropriate respect and consideration and who fail
to produce [an acceptable] quality of work,” then-Attorney
General Alberto Gonzales launched a “comprehensive review
of the immigration courts.” Mem. from Atty. Gen. Alberto
Gonzales to Members of the Bd. of Immigration Appeals
(Jan. 9, 2006), https://www.justice.gov/sites/default/
files/ag/legacy/2009/02/10/ag-010906-boia.pdf. Following
the review, the Attorney General announced revised training
and evaluation procedures for immigration judges and
instituted a requirement that new judges pass a written
knowledge examination before hearing cases. See Mem. of
Atty. Gen. Alberto Gonzales to the Deputy Att. Gen., et al.
(Aug. 9, 2006), https://www.justice.gov/sites/default/files/
ag/legacy/2009/02/10/ag-080906.pdf. He also ordered a
review of existing procedures for processing and responding
to complaints about immigration judges. Id. at 4.
At the time, the Department had no functioning system
for tracking complaints against immigration judges, nor was
there any established procedure for resolving complaints. See
Keller Decl. ¶¶ 16-18 (J.A. 142-43). In May 2010, the
Department implemented a new complaint database. Id. ¶ 19(J.A. 143). Under the new system, each new allegation of
inappropriate conduct by an immigration judge goes into the
database as a complaint and gets assigned a complaint number
for tracking purposes. Id. “Complaint” is defined broadly to
include any “information that comes to the attention of [the
Office of the Chief Immigration Judge (OCIJ)] suggesting
that an immigration judge may have engaged in conduct,
whether in court or out of court, on duty or off duty, which
may adversely affect the judge’s performance or duties or the
fair, effective, or expeditious administration of the business of
the immigration courts or the Government, or which may be
inconsistent with the agency’s mission, goals, rules, policies
or procedures.” Id. ¶ 20 (J.A. 143-44).
5
The OCIJ oversees the process of receiving, reviewing,
tracking, and responding to complaints against immigration
judges. Complaints may be initiated either by an outside
party or by OCIJ itself if it becomes aware of possible
misconduct. See EOIR, Summary of OCIJ Procedures for
Handling Complaints Against Immigration Judges 1 (May 17,
2010), https://www.justice.gov/sites/default/files/eoir/legacy/
2013/05/23/IJComplaintProcess.pdf. Complaints are
sometimes dismissed without any type of corrective action,
such as when the complaint is frivolous or relates to the
merits of an immigration judge’s decision. See id. at 3.
When disciplinary action is appropriate, OCIJ follows a
progressive disciplinary model, although “[w]here the
conduct warrants it, serious disciplinary action may be
imposed in the first instance.” Id. at 2. A non-frivolous
complaint also may be resolved without disciplinary action—
for instance, through counseling or individualized training.
Id.If there is an “identifiable complainant” for a particular
complaint, OCIJ will notify that person upon receiving the
complaint and again upon the taking of disciplinary action or
closure of the complaint file. Id. at 3. Additionally, the
government periodically makes available to the public
statistical information about complaints and the complaint
process. See id.B.
The Freedom of Information Act generally requires
government agencies to make information available to the
public, subject to nine enumerated exemptions. See 5 U.S.C.
§ 552(a), (b). For certain types of government records, the
FOIA imposes an affirmative obligation—regardless of any
request—to publish the information. Id. § 552(a)(1), (2).
6
Other records must be disclosed to the public upon request
unless they fall within one of the statutory exemptions. Id.
§ 552(a)(3).
In November 2012, the American Immigration Lawyers
Association (AILA) submitted a FOIA request to the
Department of Justice seeking information about complaints
filed against immigration judges. AILA took that action in
light of ongoing concerns about immigration judges’ conduct
and questions about the transparency and efficacy of the
complaint process. AILA’s request sought the following
information:
(1) All complaints filed against immigration
judges;
(2) All records that reflect the resolution of
complaints filed against immigration
judges, including the type of informal
action taken, if any, or formal discipline
imposed, if any;
(3) All records that reflect the reasons for
resolving complaints against immigration
judges and/or findings relied on to resolve
complaints against immigration judges,
including any reports or memoranda from
the Department of Justice Office of
Professional Responsibility (OPR) or
Office of the Inspector General (OIG);
(4) All records incorporated by reference in
documents that reflect the resolution of
complaints filed against immigration
judges; and
7
(5) An index of the records described in
paragraphs (2), (3), and (4) to the extent
that those records constitute final opinions,
including concurring and dissenti[n]g
opinions, as well as orders, made in the
adjudication of cases, pursuant to 5 U.S.C.
§ 552(a)(2)(A).
Request Letter (J.A. 121).
In June 2013, after more than six months had gone by
without a response, AILA filed this lawsuit in the district
court. Shortly thereafter, EOIR began a series of rolling
disclosures, providing to AILA many responsive records
including complaint files and other documents. By April
2014, EOIR had disclosed some 16,000 pages of documents
encompassing 767 complaint files (including both
substantiated and unsubstantiated complaints). The complaint
files contained information about the date, nature, and
resolution of each complaint, copies of relevant documents
(e.g., the immigration judge’s written decisions and hearing
transcripts), emails, and documentation of the disposition and
any other action taken in response to the complaint.
EOIR redacted from those records information it deemed
exempt from disclosure under FOIA Exemptions 5 and 6.
Exemption 5 covers information that would be privileged
from disclosure in litigation, see 5 U.S.C. § 552(b)(5), and the
redactions under that exemption are not at issue here.
Exemption 6 covers “personnel and medical files and similar
files the disclosure of which would constitute a clearly
unwarranted invasion of personal privacy.” Id. § 552(b)(6).
Invoking that exemption, EOIR redacted immigration judges’
names and other identifying information from the disclosed
complaint files. EOIR also, however, identified each
8
immigration judge by a unique three-digit code in order to
permit AILA to connect complaints to a particular judge and
to identify patterns or track the progress of discipline.
Rodrigues 5/16/14 Decl. ¶ 16 (J.A. 28-29).
In addition, EOIR redacted other information falling
outside any of FOIA’s enumerated exemptions, including, of
particular relevance here, information deemed to be non-
responsive to AILA’s request even though found within a
responsive record. Along with the redacted records, EOIR
provided AILA with a Vaughn index and affidavits describing
its rationale for all of the redactions.
In the district court, AILA challenged both EOIR’s
redaction under Exemption 6 and its redaction of non-
responsive information in responsive records. In addition,
AILA argued that FOIA’s affirmative-disclosure obligation
required publication of OCIJ’s complaint resolution decisions.
The district court rejected each of AILA’s arguments and
ultimately granted summary judgment to the government.
Am. Immigration Lawyers Ass’n v. Exec. Office for
Immigration Review (AILA II), 110 F. Supp. 3d 230, 232
(D.D.C. 2015); Am. Immigration Lawyers Ass’n v. Exec.
Office for Immigration Review, 76 F. Supp. 3d 184, 193
(D.D.C. 2014). AILA now appeals.
II.
AILA challenges the district court’s decisions
concerning: (a) the validity of the categorical redaction of
immigration judges’ names pursuant to Exemption 6; (b) the
permissibility of redacting ostensibly non-responsive
information within responsive records; and (c) the
applicability of FOIA’s affirmative disclosure requirement to
complaint resolutions. We disagree with the district court’s
9
resolution of the first two issues and remand for further
proceedings. As to the third issue, we affirm.
A.
We first consider EOIR’s blanket redaction of
immigration judges’ names under FOIA’s Exemption 6. The
Supreme Court has explained that FOIA’s exemptions are
“explicitly made exclusive and must be narrowly construed.”
Milner v. Dep’t of Navy, 562 U.S. 562, 565 (2011) (internal
citations and quotation marks omitted). The agency bears the
burden to establish the applicability of a claimed exemption to
any records or portions of records it seeks to withhold. See
Citizens for Responsibility & Ethics in Wash. v. Dep’t of
Justice (CREW), 746 F.3d 1082, 1088 (D.C. Cir. 2014).
Our review calls for us to “ascertain whether the agency
has sustained its burden of demonstrating that the documents
requested are . . . exempt from disclosure.” Assassination
Archives & Research Ctr. v. CIA, 334 F.3d 55, 57 (D.C. Cir.
2003) (citations omitted). An agency can carry its burden by
submitting a Vaughn index, see Vaughn v. Rosen, 484 F.2d
820 (D.C. Cir. 1973), along with affidavits from agency
employees that “describe the justifications for nondisclosure
with reasonably specific detail, demonstrate that the
information withheld logically falls within the claimed
exemption, and are not controverted by either contrary
evidence in the record nor by evidence of agency bad faith,”
CREW, 746 F.3d at 1088 (quoting Larson v. Dep’t of State,
565 F.3d 857, 862 (D.C. Cir. 2009)).
FOIA’s Exemption 6 enables the government to withhold
“personnel and medical files and similar files the disclosure of
which would constitute a clearly unwarranted invasion of
personal privacy.” 5 U.S.C. § 552(b)(6). We generally
10
follow a two-step process when considering withholdings or
redactions under Exemption 6. First, we “determine whether
the [records] are personnel, medical, or ‘similar’ files covered
by Exemption 6.” Multi Ag Media LLC v. Dep’t of Agric.,
515 F.3d 1224, 1228 (D.C. Cir. 2008). There is no dispute
that the records sought by AILA meet that criterion. Second,
if, as here, the records are covered by the exemption, we
“determine whether their disclosure ‘would constitute a
clearly unwarranted invasion of personal privacy.’” Id.(quoting 5 U.S.C. § 552(b)(6)). The dispute in this case
concerns that second step.
In assessing whether the disclosure of the information at
issue—immigration judges’ names and identifying
information—would rise to the level of a “clearly
unwarranted invasion of personal privacy,” we “‘balance the
public interest in disclosure against the interest Congress
intended [Exemption 6] to protect.’” Dep’t of Def. v. FLRA,
510 U.S. 487, 495 (1994) (quoting Dep’t of Justice v.
Reporters Comm. for Freedom of Press, 489 U.S. 749, 776
(1989)). Here, we follow another two-step process. The first
step, which, again, no one disputes is satisfied here, requires
determining that “disclosure would compromise a substantial,
as opposed to a de minimis, privacy interest.” Nat’l Ass’n of
Home Builders v. Norton, 309 F.3d 26, 33 (D.C. Cir. 2002)
(internal quotation marks omitted). Second, if so, we weigh
the privacy interest at stake “against the public interest in the
release of the records.” Id. (internal quotation marks
omitted).
“[T]he only relevant ‘public interest in disclosure’ to be
weighed in this balance is the extent to which disclosure
would serve the ‘core purpose of the FOIA,’ which is
‘contributing significantly to public understanding of the
operations or activities of the government.’” FLRA, 510 U.S.
11at 495 (quoting Reporters Comm., 489 U.S. at 775) (alteration
and italics omitted). In other words, disclosure of government
records under FOIA is meant to help the public stay informed
about “what their government is up to.” Reporters Comm.,
489 U.S. at 773 (internal quotation marks omitted).
AILA argues that ongoing concerns about the complaint
process and disciplinary action (or lack thereof) imposed on
immigration judges are relevant to understanding what the
agency “is up to.” Id. We agree with AILA as a general
matter, and have recognized similar public interests in our
prior cases. See, e.g., CREW, 746 F.3d at 1093. We also note
that EOIR has disclosed a substantial amount of information
concerning the complaint system and the substance of actual
complaints, and has made efforts to ensure that its disclosures
are accessible and useful (including establishing a system to
identify judges by anonymous three-digit codes, thereby
enabling AILA—and the public—to track repeat offenders
even without knowing the names of individual judges).
The relevant question, then, is not whether disclosing
immigration judges’ names would serve the public interest in
disclosure in the abstract. Instead, the question is whether,
given the information already disclosed by EOIR, the
“incremental value” served by disclosing an immigration
judge’s name outweighs that person’s privacy interest.
Schrecker v. Dep’t of Justice, 349 F.3d 657, 661 (D.C. Cir.
2003). Even given that more targeted inquiry, we conclude
that EOIR’s across-the-board redaction of all judges’ names
from all responsive documents was inadequately justified.
In an affidavit submitted with its Vaughn index, EOIR
outlined the rationale for its Exemption 6 redactions in
categorical terms. It explained its view that all immigration
judges have a privacy interest in withholding their names, and
12
that their privacy interest, as a blanket matter, necessarily
outweighs any public interest in learning any judge’s name.
Rodrigues 5/16/14 Decl. ¶¶ 55-82 (J.A. 42-60). The affidavit
went on to describe the different categories of redacted
information (e.g., names, gender pronouns) and to explain
how each category relates to the general privacy interest of all
immigration judges. Id. None of EOIR’s materials addresses
the privacy interests of individual immigration judges, or any
potential public interest in learning individual immigration
judges’ names in particular circumstances.
That categorical approach stands in contrast to EOIR’s
support for its Exemption 5 redactions (which are
unchallenged here). For each of its Exemption 5 redactions,
EOIR detailed the reason the exemption applies to the
particular piece of information in question. It devoted a
paragraph to each redaction (168 paragraphs in all), including,
for instance, specific information about the authors and
recipients of memoranda and emails as well as the general
topics discussed in each record. See id. ¶¶ 83-251 (J.A. 60-
118).
Exemption 6, we have explained, “does not categorically
exempt individuals’ identities . . . because the ‘privacy
interest at stake may vary depending on the context in which
it is asserted.’” Judicial Watch, Inc. v. Food & Drug Admin.,
449 F.3d 141, 153 (D.C. Cir. 2006) (quoting Armstrong v.
Exec. Office of the President, 97 F.3d 575, 582 (D.C. Cir.
1996)); see also Nation Magazine v. U.S. Customs Serv., 71
F.3d 885, 894-95 (D.C. Cir. 1995). To be sure, in certain
situations we have allowed an agency to justify withholding
or redacting records “category-of-document by category-of-
document” rather than “document-by-document.” CREW,
746 F.3d at 1088 (quoting Gallant v. NLRB, 26 F.3d 168, 173
(D.C. Cir. 1994)). But we have permitted such an approach
13
only if the documents within each category are sufficiently
similar—and the categories are sufficiently well-defined and
distinct—“to allow a court to determine whether the specific
claimed exemptions are properly applied.” Id. (quoting
Gallant, 26 F.3d at 173).
In other words, “the range of circumstances included in
[a] category [must] ‘characteristically support[] an inference’
that the statutory requirements for exemption are satisfied.”
Nation Magazine, 71 F.3d at 893 (quoting United States v.
Landano, 508 U.S. 165, 176-80 (1993)). The question, then,
is whether there has been a sufficient showing that the
balancing analysis under Exemption 6 would yield a uniform
answer across the entire proffered category, regardless of any
variation among the individual records or persons falling
within it. We cannot say that is true here.
The records at issue encompass all complaints OCIJ
received during the relevant time period: whether
substantiated or unsubstantiated, whether related to serious
issues or comparatively trivial ones, and whether about
immigration judges’ conduct on the bench or their conduct
outside the workplace. Moreover, the privacy interests at
stake encompass those of each immigration judge subjected to
any of the wide variety of types of complaints: whether a
sitting immigration judge or someone no longer on the bench,
whether a judge who has faced only one complaint or a judge
who has repeatedly been the target of complaints, and whether
the judge has been subjected to some type of discipline or has
avoided disciplinary action (and the reasons why). Given the
variety in types of complaints and circumstances of individual
immigration judges, not every judge has the same privacy
interests at stake and not every complaint would equally
enlighten the public about “what their government is up to.”
14
Reporters Comm., 489 U.S. at 773; see Prison Legal News v.
Samuels, 787 F.3d 1142, 1150-51 (D.C. Cir. 2015).
The interests on both sides of the Exemption 6 balancing
test might vary in substantial measure with respect to different
immigration judges (and perhaps different complaints). A
retired immigration judge—who, after all, is a private
citizen—presumably would have a greater privacy interest in
avoiding disclosure of her name than would an immigration
judge who sits on the bench today. Similarly, the public
interest likely would be more pronounced in the case of a
sitting immigration judge, who continues to make decisions as
an employee of the Department of Justice, than in the case of
a former judge. Additionally, disclosing the name of an
immigration judge subject to numerous and/or serious
substantiated complaints might shed considerable light on
matters of public interest, whereas disclosing the name of an
immigration judge subject to a single, unsubstantiated
complaint might not. For instance, in the case of a sitting
judge with a substantial number of serious and substantiated
complaints, knowledge of her identity would enable the
public to examine her official actions (including decisions),
both past and future, and to assess any possible implications
of those complaints for the conduct of her official
responsibilities. By enabling the public to make such
connections, knowing the identity of that judge could shed
considerably more light on “what the[] government is up to,”
Reporters Comm., 489 U.S. at 773, than simply knowing
about the existence of some anonymous judge with a certain
number of complaints against her.
“If it [were] always true that the damage to a[n]
[immigration judge’s] privacy interest from a [complaint
file]’s production outweigh[ed] the FOIA-based public value
of such disclosure, then it [would be] perfectly appropriate to
15
conclude as a categorical matter that” disclosing immigration
judges’ names would constitute a clearly unwarranted
invasion of personal privacy. Reporters Comm., 489 U.S. at
779. But here, variations in the privacy and public interests at
stake leave us unable to find, at least as a blanket matter, that
the Exemption 6 balance tips in favor of withholding
immigration judges’ names in all circumstances. That is not
to say, necessarily, that EOIR could not ultimately support
redacting identifying information in all cases if its
justifications for doing so were framed in a more targeted
manner. That question is not before us, however. Because
EOIR here sought to justify its withholding of immigration
judges’ names in purely categorical, across-the-board terms, it
has not carried its burden to justify the Exemption 6
redactions.
On remand, if EOIR continues to claim that Exemption 6
warrants withholding the names of all immigration judges, it
should make a more particularized showing for defined
subgroups of judges or for individual judges. See Prison
Legal News, 787 F.3d at 1151-52. The district court would
then “engage in ad hoc balancing of the competing interests at
stake” for each subgroup of immigration judges or for each
judge. Nation Magazine, 71 F.3d at 895. The court, upon
conducting the Exemption 6 balancing, might determine that
the balance tips towards withholding in some, many, or all
instances. And of course, if EOIR allocates immigration
judges into subgroups and the grouping methodology is
inadequate, the court may require EOIR to further separate the
judges or make individual showings for each judge. At this
stage, it suffices for us to conclude that “a categorical rule is
inappropriate.” CREW, 746 F.3d at 1096 (emphasis deleted).
16
B.
We next turn to EOIR’s redaction of ostensibly non-
responsive material within responsive records. In response to
AILA’s motion for summary judgment, EOIR submitted a
Vaughn index and affidavit explaining its non-responsive
redactions. EOIR claimed it was under “no obligation . . . to
release information that concerned matters unrelated to
[AILA]’s FOIA request because the information [wa]s outside
the scope of the request.” Rodrigues 7/17/14 Supp. Decl. ¶ 6
(J.A. 477) (citing 5 U.S.C. § 552(a)(3)(A)). (Although EOIR
claims that it was not required to submit a Vaughn index,
Appellee Br. 44, we have no need to decide that issue today.)
AILA subsequently filed a motion to compel production
of the non-responsive material. In an affidavit filed in
response to that motion, EOIR noted that there were 64 pages
of responsive records with non-responsive material redacted.
It gave examples of the reasons for those redactions. “The
type of non-responsive information” redacted evidently
includes “information about the need for an immigration
judge to clean his/her office, whether an immigration judge
had returned to the bench after a security issue, [and] the
discussion of vacation plans[,] and personal medical
conditions of EOIR staff.” Rodrigues 5/14/15 Decl. ¶ 26
(J.A. 634). In its Vaughn index, EOIR included short
explanations specific to each redaction or withheld document.
The district court, relying on its own past practice and
that of other district courts in recent years, denied AILA’s
motion to compel production of the non-responsive material.
AILA II, 110 F. Supp. 3d 230. Our court, however, has yet to
address the issue. AILA’s appeal thus brings to us a question
of first impression: if the government identifies a record as
responsive to a FOIA request, can the government
17
nonetheless redact particular information within the
responsive record on the basis that the information is non-
responsive? We find no authority in the statute for the
government to do so.
FOIA requires that “each agency, upon any request for
records which (i) reasonably describes such records and (ii) is
made in accordance with published rules stating the time,
place, fees (if any), and procedures to be followed, shall make
the records promptly available to any person.” 5 U.S.C.
§ 552(a)(3)(A). The statute allows that, in certain specified
situations inapplicable here, the agency may “treat the
[responsive] records as not subject to” the disclosure
obligation. Id. § 552(c)(1)-(3). But responsive records are
generally subject to the disclosure obligation. The sole FOIA
provision enabling the government to withhold responsive
records is section 552(b), which sets forth the nine statutory
exemptions. That section also explicitly allows for the
redaction of exempt information within responsive records,
providing that “[a]ny reasonably segregable portion of a
record shall be provided to any person requesting such record
after deletion of the portions which are exempt under this
subsection.” Id. § 552(b).
The statute thus sets forth the broad outlines of a process
for agencies to follow when responding to FOIA requests:
first, identify responsive records; second, identify those
responsive records or portions of responsive records that are
statutorily exempt from disclosure; and third, if necessary and
feasible, redact exempt information from the responsive
records. The statute does not provide for withholding
responsive but non-exempt records or for redacting non-
exempt information within responsive records.
18
In light of the Supreme Court’s instruction that FOIA’s
exemptions are “explicitly made exclusive and must be
narrowly construed,” Milner, 562 U.S. at 565 (internal
citations and quotation marks omitted), we do not see how
EOIR’s non-responsive redactions here can be squared with
the statute. Those redactions find no home in FOIA’s
scheme. Rather, once an agency identifies a record it deems
responsive to a FOIA request, the statute compels disclosure
of the responsive record—i.e., as a unit—except insofar as the
agency may redact information falling within a statutory
exemption. See 5 U.S.C. § 552(a)(3)(A), (b). In the context
of a record containing exempt information, accordingly, the
“focus of the FOIA is information, not documents.” Mead
Data Central, Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242,
260 (D.C. Cir. 1997). But outside of that context, FOIA calls
for disclosure of a responsive record, not disclosure of
responsive information within a record.
In particular, nothing in the statute suggests that the
agency may parse a responsive record to redact specific
information within it even if none of the statutory exemptions
shields that information from disclosure. To the contrary, in
expressly allowing for—and only for—“deletion of the
portions” of a responsive record “which are exempt,” 5
U.S.C. § 552(b), the statute reinforces the absence of any
authority to delete portions of a responsive record which are
not exempt. Indeed, the statute specifies that it “does not
authorize withholding of information . . . except as
specifically stated in” its terms. Id. § 552(d). In short,
Congress determined that the statutory exemptions
sufficiently cover the types of information which it is
appropriate for the government to redact from a responsive
document—e.g., information “related solely to the internal
personnel rules and practices of an agency,” id. § 552(b)(2);
certain types of “trade secrets and commercial or financial
19
information,” id. § 552(b)(4); and “inter-agency or intra-
agency memorandums or letters which would not be available
by law to a party other than an agency in litigation with the
agency,” id. § 552(b)(5).
The practical significance of FOIA’s command to
disclose a responsive record as a unit (after deletion of exempt
information) depends on how one conceives of a “record.”
Here, the parties have not addressed the antecedent question
of what constitutes a distinct “record” for FOIA purposes, and
we have no cause to examine the issue. Rather, for purposes
of this case, we simply take as a given EOIR’s own
understanding of what constitutes a responsive “record,” as
indicated by its disclosures in response to AILA’s request.
Although FOIA includes a definitions section, id. § 551,
that section provides no definition of the term “record.”
Elsewhere, the statute describes the term “record” as
“includ[ing] any information that would be an agency record
. . . when maintained by an agency in any format, including an
electronic format,” id. § 552(f), but that description provides
little help in understanding what is a “record” in the first
place. Compare, e.g., id. § 552a(a)(4) (defining “record”
under the Privacy Act as “any item, collection, or grouping of
information”); 44 U.S.C. § 2201(2) (defining “Presidential
records” as “documentary materials, or any reasonably
segregable portion thereof,” meeting certain criteria); id.§ 3301 (defining “records” under the Federal Records Act as
“all recorded information, regardless of form or
characteristics,” meeting certain criteria).
Under FOIA, agencies instead in effect define a “record”
when they undertake the process of identifying records that
are responsive to a request. See id. § 552(f)(2). We have no
occasion here to consider the range of possible ways in which
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an agency might conceive of a “record.” But we note that, in
guidance to agencies on processing FOIA requests, the
Department of Justice addresses the issue of documents that
cover multiple, unrelated topics. DOJ, OIP Guidance:
Determining the Scope of a FOIA Request, FOIA Update,
Vol. XVI, No. 3 (1995),
https://www.justice.gov/oip/blog/foia-update-oip-guidance-
determining-scope-foia-request. While using different
terminology, that guidance sets forth a number of
considerations for agencies to take into account when
determining whether it is appropriate to divide such a
document into discrete “records.” Id.
EOIR notes that email can pose special challenges
because “it is not unusual for an email chain to traverse a
variety of topics having no relationship to the subject of a
FOIA request.” Gov’t’s Br. 43. We understand EOIR’s
concerns, but insofar as they relate to the policy choices
embedded in the scope of the statute’s disclosure mandate,
they are best directed to Congress. We must interpret the
statute as written. For our purposes, the dispositive point is
that, once an agency itself identifies a particular document or
collection of material—such as a chain of emails—as a
responsive “record,” the only information the agency may
redact from that record is that falling within one of the
statutory exemptions.
Insofar as the government in a different case might
undertake to conceive of an individual “record” more
narrowly, we note that, here, the agency’s redactions on
grounds of non-responsiveness went down to the level of an
individual sentence within a paragraph within an email
message. We find it difficult to believe that any reasonable
understanding of a “record” would permit withholding an
individual sentence within a paragraph within an email on the
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ground that the sentence alone could be conceived of as a
distinct, non-responsive “record.”
For the reasons we have explained, it was improper for
EOIR to redact non-responsive information from responsive
records. We thus remand to the district court for assessment
of whether any of the information impermissibly redacted as
non-responsive might be permissibly redacted as statutorily
exempt. If not, EOIR must disclose the information.
C.
Under FOIA’s affirmative disclosure requirement,
“[e]ach agency, in accordance with published rules, shall
make available for public inspection and copying,” among
other things, “final opinions, including concurring and
dissenting opinions, as well as orders, made in the
adjudication of cases.” 5 U.S.C. § 552(a)(2). AILA claims
that complaint resolution decisions for immigration judges
amount to “final opinions [and] orders, made in the
adjudication of cases” and thus must affirmatively be
disclosed by EOIR regardless of any request. We find no
error in the district court’s rejection of that claim.
Complaint resolutions do not result from an adjudicatory
process such that we would consider them “final opinions”
rendered in the “adjudication of [a] case[].” Id. In Skelton v.
United States Postal Service, the Fifth Circuit emphasized
that the ability of a third party to participate as a party and to
obtain “personal relief” in a proceeding bears significantly on
the determination whether, for purposes of FOIA’s
affirmative disclosure requirement, the proceeding amounts to
an “adjudication of a ‘case’” culminating in a final order. 678
F.2d 35, 40 (5th Cir. 1982). The court interpreted the statute
to refer to final opinions resulting from proceedings “in which
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a party has a right to set the agency decision-making process
in motion and obtain a determination concerning the statute or
other laws the agency is charged with interpreting and
administering.” Id. at 41. We agree with that approach.
AILA is right, of course, that individuals may set in
motion the complaint process for immigration judges.
Individual complainants (should they choose to identify
themselves) are even entitled to receive notifications when
their complaints are resolved. But nothing in the complaint
process makes an individual complainant a party to the
investigation or to any other aspect of the process. Complaint
resolutions thus do not reflect a final decision as to the rights
of outside parties; nor do they entitle any outside parties to
any form of relief. As a result, they are not subject to FOIA’s
affirmative disclosure requirement.
In addition, the affirmative disclosure requirement has
long been understood to mandate disclosure of decisions that
“constitute the making of law or policy by an agency.”
Common Cause v. IRS, 646 F.2d 656, 660 (D.C. Cir. 1981);
see NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 153 (1975).
Complaint resolution decisions do not fit that mold. They set
no precedent, have no binding force on the agency in later
decisions, and indeed have no effect on anyone except the
individual immigration judge who is the subject of the
particular complaint. We fail to see how the affirmative
disclosure of complaint resolution decisions would serve the
requirement’s core purpose—preventing the creation of
“secret (agency) law,” Sears, 421 U.S. at 153—when each
resolution is sui generis. See Leeds v. Comm’r of Patents &
Trademarks, 955 F.2d 757, 762 (D.C. Cir. 1992); Vietnam
Veterans of Amer. v. Dep’t of Navy, 876 F.2d 164, 165 (D.C.
Cir. 1989).
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* * * * *
For the foregoing reasons, we affirm the district court in
part, reverse in part, and remand the case for further
proceedings consistent with this opinion.
So ordered.