Hamdan v. DOJ, No. 13-55172, 797 F.3d 759 (9th Cir. Aug. 14, 2015) (Gould, J.)

Hamdan v. DOJ, No. 13-55172, 797 F.3d 759 (9th Cir. Aug. 14, 2015) (Gould, J.)

Re: Request for records concerning plaintiff

Disposition: Affirming in part and vacating in part district court's grant of defendant's motion for summary judgment; remanding case

• Procedural Considerations, Adequacy of Search:  The Court of Appeals for the Ninth Circuit holds that "[t]he State Department and the FBI complied with their obligations to search for records under FOIA."  The court first finds that "[t]he State Department's search was reasonably calculated to uncover all records responsive to Plaintiffs' FOIA request."  The court explains that "[e]ven though the Department did not search the records of the Bureau of Political–Military Affairs, there is no reason to doubt the good faith of the Department's declaration that there is no apparent connection between [plaintiffs] and the military matters within the Bureau's purview."  Second, the court "hold[s] that the FBI's search was also reasonably calculated to locate responsive records."  The court finds that "[p]laintiffs' suggestion that the FBI might be under-inclusive in uploading and indexing records in [its Central Records System] 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."  The court also finds that "[p]laintiffs have made no showing that by the close of the FBI's search, leads had emerged suggesting a need to search other databases."  Overall, the court finds that "[p]laintiffs were entitled to a reasonable search for records, not a perfect one."  "And a reasonable search is what they got."
   
• Exemption 1:  "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,' . . . [the court] affirm[s] the FBI's and the DIA's invocations of Exemption 1."  The court first "conclude[s] that the FBI has fairly provided as much detail as it can without compromising the very secrets Exemption 1 is supposed to protect."  The court finds that "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."  The court then rejects "[p]laintiffs['] argu[ment] that the DIA's affidavits are less detailed than the State Department's."  Instead, the court finds that "FOIA only requires reasonably specific justifications to enable a meaningful adversarial process and review by the courts."
   
• Exemption 3:  The Ninth Circuit "agree[s] with the district court that the DIA has met its burden to justify withholding the content of certain records under Exemption 3."  The court relates that the DIA used Exemption 3 in conjunction with "10 U.S.C. § 424 . . . [which] 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.'"  The court rejects plaintiff's argument and finds that "reading § 424 to shield only information about DIA personnel would effectively read the first prong out of the statute."  The court finds that "[w]hile 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."
   
• Exemption 7(E):  The court "affirm[s] the district court's ruling as to Exemption 7(E)."  The court finds that while "[i]t is true that credit searches and surveillance are publicly known law enforcement techniques[,]" "specific means of conducting surveillance and credit searches rather than an application" are what are at issue here.  The court also rejects plaintiffs' "conten[tion] that the FBI must show that disclosure would lead to a danger of future lawbreaking[,]" and holds that "[p]laintiffs' argument is an unpersuasive reading of the statutory text and structure."  "Finally, [the court] reject[s] 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' . . . because there is no indication that any of the techniques being protected from disclosure are of questionable legality."
   
• Litigation Considerations, "Reasonably Segregable" Requirements:  The court finds that "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."  "Because [the court] ha[s] previously held that it is reversible error for the district court to approve the withholding of a document without a segregability finding, [the Ninth Circuit] now remand[s] to the district court for such a finding."