Broward Bulldog, Inc. v. DOJ, No. 17-13787, 2019 WL 4593316 (11th Cir. Sept. 23, 2019) (Pryor, J.)

Broward Bulldog, Inc. v. DOJ, No. 17-13787, 2019 WL 4593316 (11th Cir. Sept. 23, 2019) (Pryor, J.)

Re:  Request for records concerning Saudi Arabian family in Florida that allegedly had ties to individuals associated with September 11, 2001 terrorist attacks

Disposition:  Affirming in part, reversing in part and remanding district court's grant in part and denial in part of defendant's motion for summary judgment

• Litigation Considerations, Adequacy of Search:  The Court of Appeals for the Eleventh Circuit holds that "[t]he Bureau satisfied its burden by submitting declarations that were 'relatively detailed, nonconclusory, and submitted in good faith.'"  The court relates that "[the requester] argues that [the FBI's] declaration failed to describe an adequate search."  "It points out that [the FBI] failed to identify 'the search terms the [Bureau] used.'"  "But [the FBI] did not identify any search terms because the Section employees performed a 'document-by-document search' of the electronic storage site, the electronic file located on the central records system, and the Commission documents sent to the Records Storage and Maintenance Unit."  "And contrary to the argument of [the requester], [the FBI's] declaration explained the basis for the conclusion that responsive documents would not be located on the central records system and why the Section employees relied on the Office employees to guide their search."  "It was reasonable to decide not to search the central records system because that system is indexed by 'subjects of investigative interest,' and [the requester] sought the working papers of the Commission – which are not investigative records."  "It made sense to rely instead on the personal knowledge of two Office employees who served as liaisons to the Commission to identify where responsive documents would be."
   
• Litigation Considerations, Vaughn Index/Declaration:  The Court of Appeals for the Eleventh Circuit relates that "[t]he district court rendered its decision after reviewing several declarations and three sealed Vaughn indices and after conducting an in camera review of the documents."  The court holds that "[t]he declarations and Vaughn indices provided 'relatively detailed justification[s], specifically identifying the reasons why a particular exemption [wa]s relevant and correlating those claims with [a] particular part of a withheld document.'"  "[T]hroughout its Vaughn indices and the supporting declarations, the government disclosed 'as much information in the withheld documents as possible without waiving the privilege.'"  "And 'it is fair to say that both [the requester] and the district court were able to understand why each document or portion of a document was withheld as exempt from disclosure, even without the in camera review,' and that these documents provided an adequate basis for the decision rendered."  Additionally, the court relates that "[the requester] argues that the justifications offered by the government were inadequate because they contained 'boilerplate language,' but [the court] [has] never suggested that an agency may not use similar language to justify withholding information in multiple documents."  "After all, '[t]here are only so many ways' an agency can claim the same exemption for related documents."
   
• Litigation Considerations, Standard of Review; Exemption 1; Exemption 3:  First, the Court of Appeals for the Eleventh Circuit holds that "the district court owed substantial deference to the Bureau's invocation of Exemption 3 even though the Bureau still bore the burden of proving the applicability of that exemption."  "The Supreme Court has explained that agency decisions to protect information governed by the National Security Act under Exemption 3 'are worthy of great deference given the magnitude of the national security interests and potential risks at stake.'"  Second, the court finds that "the district court did not err by deferring to the Bureau's affidavit supporting the Exemption 1 claim."  The court explains that "[w]hatever tension might otherwise exist between the Act's requirement of de novo review and deferring to an agency's explanation for withholding information, Congress has approved of deference within the specific context of Exemption 1."  "Congress ratified this understanding in 1996 when it amended the Act to include the following language:  'In addition to any other matters to which a court accords substantial weight, a court shall accord substantial weight to an affidavit of an agency concerning the agency's determination as to technical feasibility under paragraph (2)(C) and subsection (b) and reproducibility under paragraph (3)(B).'"  "This amendment, adopted against the longstanding circuit practice of according 'substantial weight' to agency affidavits in the Exemption 1 context, not only ratifies the deference courts have given to agencies under Exemption 1, but also extends it to matters of 'technical feasibility under paragraph (2)(C) and subsection (b) and reproducibility under paragraph (3)(B)' of the Act."
   
• Exemption 7(C):  The Court of Appeals for the Eleventh Circuit "disagree[s] [with the district court] that an individual assessment is always necessary to support every redaction made under Exemption 7(C)."  The court finds that "the government need not 'make a separate showing as to the applicability of Exemption 7(C) to each particular person identified in its records.'"  Second, responding to the requester's argument, the court finds that, "[f]or purposes of the public-domain doctrine, only the individual discussed in the document or the agency in possession of the document may waive the individual's right to redaction by disclosing the individual's identity."  "[The requester] does not suggest that it proved that the same information in each redaction is also in the public record, or that the Bureau or the relevant individuals disclosed the information in each redaction."  The court finds that "[b]ecause the district court ruled that the public-domain doctrine applies to information that is in the public domain based only on media speculation and did not require [the requester] to prove the same information in each redaction was already in the public domain, the district court erred."  Third, the court finds that "the district court erred when it ruled that Exemption 7(C) does not protect a privacy interest if an individual was connected to or was of investigative interest for the 9/11 attacks."  "Regardless of whether an individual is innocent or guilty, 'where the subject of the documents is a private citizen, the privacy interest is at its apex.'"  "[The court] [does] not 'afford a lesser degree of privacy to those who violate the laws of the United States' because distinguishing the innocent from the guilty 'violates the proposition that individuals have a substantial privacy interest in their criminal histories.'"  "[The court] also disagree[s] with [plaintiff] that the innocent will necessarily welcome exculpatory disclosures."  The court explains that "[j]ust as releasing a criminal's rap sheet could remind the public of events it may have forgotten, . . . disclosing the redacted information here could, as [the FBI] also explained, 'cause . . . serious disruptions of the[ ] lives [of former suspects and others] by reigniting old suspicions, sustaining any existing negative inferences into their character[s], and/or subjecting them to additional harassing inquiries and/or negative reporting in the press.'"  Fourth, the court holds that "the district court erred when it ruled that the government's 'inconsistent' approach to the redaction of personal information undermined the application of Exemption 7(C)."  "The relevant question is whether the redactions the government made were proper, not whether it could have made additional redactions."  "Neither the district court nor [the requester] cites any authority to support the argument that the government must explain the inconsistent application of an exemption."  Finally, the court finds that, "[t]o be sure, the public has some interest in the information that is relevant to our analysis under Exemption 7(C)."  "The names of those involved in an investigation into a major terrorist attack could reveal how the government took action with respect to certain leads."  "Disclosure might also permit [the requester] and other media outlets to contact individuals involved in the investigation."  "But these public interests cannot outweigh the privacy interests that private citizens hold in not being associated with a major terrorism investigation, which we reiterate are at their 'apex' here."  "Because [the requester] has failed to establish a significant public interest that can outweigh the strong privacy interests in the clearly identifying information at issue – such as names, addresses, and phone numbers, [the court] reverse[s] the order of the district court for these classes of information."  "But as discussed, the Bureau seeks to redact other types of information that do not clearly identify any individual – . . . that do not clearly identify any of the persons named in the documents."  "For all potentially identifying information that is not a name, address, or phone number, we remand to the district court to allow it to determine in the first instance whether the information is identifying."
   
• Exemption 7(D):  The Court of Appeals for the Eleventh Circuit holds that "[it] agree[s] in part with the government and [the requester]."  The court holds that "the informant spoke under an implied assurance of confidentiality because he provided information about terrorism and unsolved homicides."  "As [the FBI] explained in [its] declaration, disclosure of 'specific, singular, detailed information' related to the 'investigation of terrorism activities' by the Bureau 'could subject [the informant], as well as [his] famil[y], to embarrassment, humiliation, and/or physical or mental harm.'"  "And as [it] stated, 'in the . . . experience [of the Bureau], sources providing information to the [Bureau] about extremist activities do so at great peril to themselves and have faced retaliation and threats (including death threats) when their assistance to the [Bureau] has been publicly disclosed.'"  The court also disagrees with the district court and finds that "the government submitted a detailed chart linking blocks of redacted text to specific exemptions."  "As to the security guard, [the court] agree[s] with [the requester] that his name should not have been withheld under Exemption 7(D) because his actions – including his speaking on the record to a journalist before he spoke to the Bureau – would not support an inference that he spoke to the Bureau under an implied assurance of confidentiality."  "Even so, because the Bureau asserted that the identifying information of persons like the security guard who were involved in the investigation is also covered by Exemption 7(C), and his name and other information is clearly identifying, we affirm the redaction under Exemption 7(C)."
  
  Circuit Judge Martin, writing separately to concur in part and dissent in part, states that "[t]he FBI's failure to identify a cognizable group of persons for whom categorical treatment makes sense gives [the court] [a] basis for affirming the District Court's rulings as to Exemption 7(C)."  Judge Martin "find[s] it hard to understand why the privacy interests of an FBI agent and a person of interest to the investigation should be presumed to be so similar that [the court] analyze them together."  "There may well be reasons to conduct the analysis in this way, but the FBI has not enlightened [the court] as to what those reasons might be."  Judge Martin would also "reject the FBI's argument that the District Court failed to properly appreciate the privacy interest at stake and mistakenly measured the magnitude of the public's interest."  Judge Martin also "believe[s] [that] the public does have an interest in knowing what, if anything, the government knew about the [the subject family] in the run-up to the 9/11 attacks, as well as how the FBI handled its investigation of the [the subject family's] departure from the country."
   
• Exemption 7(E):  First, the Court of Appeals for the Eleventh Circuit holds that "the fact that the Bureau might look to phone, email, or financial records in an investigation is so obvious and widely known that the withheld information fails to 'disclose' any law-enforcement technique" and so finds Exemption 7(E) inapplicable to certain documents.  Second, "[a]s to [another document], [the court] agree[s] with the government that most of its redacted information reveals the usefulness of certain law-enforcement techniques and procedures or reveals vulnerabilities that are not generally known to the public."  "Because almost all of [the withheld] passages expose aspects of the Bureau’s investigative and analytical methodologies, they disclose 'how law enforcement officials go about investigating a crime' and are protected under Exemption 7(E)."  However, the court finds that "the government has failed to meet its burden with respect to three slides" which concern "a hand-to-hand combat course intended to help select candidates for the 9/11 operation," details concerning a meeting, and a "'casing report.'"  Concerning the information withheld from the slides, the court holds that "the Bureau has not provided enough facts to determine that [a withheld] photo is from a hidden camera as opposed to one that is visible or that the photo is clear enough to reveal the camera's location to any subject."  Additionally, the court finds that "the government fails to explain how disclosing this information would risk revealing the specific collection methods by which it was obtained or otherwise reveal a law-enforcement vulnerability, and it is not self-evident to [the court] how disclosure would create such risks."  Finally, the court finds that "[the requester] misses the point that [certain] redacted information . . . will also shed light on how Bureau agents uncovered that 'detailed information.'"  "And as [the FBI] explained in his declaration, revealing 'a playbook to future subjects' on, for example, 'how much money one can move around, what form is more or less detectable, through what means, and where to avoid so as not to attract attention' may make it easier for others to circumvent the law."  "And disclosing 'how the hijackers were able to obtain identification, enter the country, and what types of identification they were successful at obtaining' as well as 'the sources the [Bureau] obtains this information from, [and] the specific types of data the [Bureau] finds most useful' would threaten the Bureau's 'ability to apprehend others using the same methods.'"
  
  Circuit Judge Martin, writing separately to concur in part and dissent in part, states that "[b]ecause [certain] slides are pure factual recaps of generally known topics of interest without any discussion or analysis of law enforcement techniques or intelligence gathering, they too should be disclosed."
   
• Exemption 5, Deliberative Process Privilege:  The Court of Appeals for the Eleventh Circuit holds that "[b]ecause [certain] slides are not deliberative or predecisional, they do not fall under Exemption 5."  The court finds that "[t]he government has not established that the information contained in the slides 'makes recommendations or expresses opinions on legal or policy matters.'"  "The slides contain only a list of factual statements, and 'factual materials do not become privileged merely because they represent a summary of a larger body of information.'"  "Similarly, nothing in the record suggests that that the slides were 'prepared in order to assist an agency decision-maker in arriving at his decision.'"  "Although the materials might 'predate[ ] a decision chronologically,' [the court] do[es] not see how they 'contribute[d] to [any] decision.'"
   
• Litigation Considerations, "Reasonably Segregable" Requirements:  Responding to the requester's arguments, the Court of Appeals for the Eleventh Circuit holds that "[t]he district court may not have used the word 'segregability,' but its lengthy analysis over the course of three orders establishes that it sought to limit the redactions to the extent possible."  "And there is no need to reverse and remand when both this panel and the district court have conducted in camera reviews to ensure that only exempt information is redacted."  "[The court] will not require such a pointless formality."
   
• Litigation Considerations, Mootness and Other Grounds for Dismissal:  The Court of Appeals for the Eleventh Circuit holds that "[the requester] was already engaged in ongoing litigation before another district judge, so the district court here did not err when it refused to entertain 'the exact same legal issues' raised by the 'exact same parties' about the 'exact same [documents].'"