Am. Civil Liberties Union of N. Cal. v. Fed. Bureau of Investigation

881 F.3d 776

AMERICAN CIVIL LIBERTIES UNION OF NORTHERN CALIFORNIA; Asian Law Caucus; San Francisco Bay Guardian, Plaintiffs-Appellees,

v.FEDERAL BUREAU OF INVESTIGATION, Defendant-Appellant.

No. 16-15178

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 19, 2017 San Francisco, California

Filed February 1, 2018

August E. Flentje (argued) and H. Thomas Byron III, Appellate Staff; Brian Stretch, United States Attorney; Civil Division, United States Department of Justice, San Francisco, California; for Defendant-Appellant.

Angela Elaine Kleine (argued), Jacob P. Ewerdt, and Somnath Raj Chatterjee, Morrison & Foerster LLP, San Francisco, California; Christina Sinha, Asian Americans Advancing Justice—Asian Law Caucus, San Francisco, California; Lynda Lye and Julia Harumi Mass, American Civil Liberties Union Foundation of Northern California Inc., San Francisco, California; for Plaintiffs-Appellees.

Before: Sandra S. Ikuta and Andrew D. Hurwitz, Circuit Judges, and James S. Gwin,^** District Judge.

HURWITZ, Circuit Judge:

This case requires us to once again construe Exemption 7 of the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552(b)(7), which governs disclosure of "records or information compiled for law enforcement purposes."

In analyzing FOIA requests to law enforcement agencies for disclosure of investigatory materials, we have long held that the government need only show a "rational nexus" between enforcement of federal law and a withheld document to invoke Exemption 7. See, e.g. , Rosenfeld v. U.S. Dep't of Justice , 57 F.3d 803, 808 (9th Cir. 1995). But, we have not yet decided whether the same standard governs requests for more generalized records, such as training manuals and guidelines.

We today hold that for such records, the government's burden under Exemption 7 of demonstrating that withheld materials were "compiled for law enforcement purposes" can be satisfied without linking the documents to the enforcement of a particular statute.

I.

Concerned about alleged surveillance of Muslim-Americans, the ACLU of Northern California, the Asian Law Caucus, and the San Francisco Bay Guardian (collectively, "the ACLU") submitted two FOIA requests to the FBI in 2010. The first sought disclosure of documents and data about surveillance and infiltration, including records of "[t]raining for FBI agents regarding Islam, Muslim culture, and/or Muslim, Arab, South Asian, or Middle Eastern communities in the United States." The ACLU also sought records of "FBI investigations and assessments of mosques; Islamic centers; Muslim community centers; members of mosques, Islamic centers or Muslim community centers based on their membership or affiliation with such centers; Muslim leaders; and imams." The second request sought information regarding the FBI's "mapping" of communities and businesses based on race and ethnicity.

After receiving no disclosures, the ACLU filed this suit. The FBI then released over 50,000 full or redacted pages, but withheld 47,794 pages under various FOIA exemptions, agreeing to provide Vaughn indexes for a designated sample of the withheld documents.¹ The parties then filed cross-motions for summary judgment, centered on whether the FBI could withhold documents under Exemption 7. The district court held that the FBI had not shown a " ‘rational nexus’ between the enforcement of a federal law, and the documents it claims are exempt from disclosure," and granted summary judgment to the ACLU.

In its summary judgment order, the district court acknowledged that Ninth Circuit cases requiring a nexus between withheld documents and a specific federal law "arose from the withholding of solely investigatory records, and therefore differ meaningfully from the present instance, which also concerns policy and training documents." But, the court found "no indication in the statute or case law ... permit[ting] the drawing of such distinctions." The district court entered final judgment in favor of the ACLU, and the FBI timely appealed.

We have jurisdiction under 28 U.S.C. § 1291 and review the district court's summary judgment de novo. Animal Legal Def. Fund v. FDA , 836 F.3d 987, 990 (9th Cir. 2016) (en banc) (per curiam).

II.

"The Freedom of Information Act seeks ‘to ensure an informed citizenry, vital to the functioning of a democratic society.’ " Tuffly v. U.S. Dep't of Homeland Sec. , 870 F.3d 1086, 1092 (9th Cir. 2017) (quoting NLRB v. Robbins Tire & Rubber Co. , 437 U.S. 214, 242, 98 S.Ct. 2311, 57 L.Ed.2d 159 (1978) ). Accordingly, "the Act requires that federal agencies make records within their possession promptly available to citizens upon request." Id. But, "this command is not absolute." Id. Rather, because "Congress recognized that ... transparency may come at the cost of legitimate governmental and privacy interests ... the Act provides for nine specific exemptions." Id. ; see 5 U.S.C. § 552(b). Exemption 7 protects "records or information compiled for law enforcement purposes" from disclosure, "but only to the extent that the production of such law enforcement records or information" would cause one of six enumerated harms. 5 U.S.C. § 552(b)(7)(A)–(F). Thus, a court must first decide whether a document was "compiled for law enforcement purposes" before turning to whether an enumerated harm exists.

In considering FOIA requests for information collected through investigations of individuals or groups, we have stressed that "[a]n agency which has a clear law enforcement mandate, such as the FBI, need only establish a ‘rational nexus’ between enforcement of a federal law and the document for which an exemption is claimed," Church ofScientology of Cal. v. U.S. Dep't of Army , 611 F.2d 738, 748 (9th Cir. 1979), overruled on other grounds by Animal Legal Def. Fund , 836 F.3d at 990 ; see also Rosenfeld , 57 F.3d at 808, or "a ‘rational nexus’ between its law enforcement duties" and such documents, Binion v. U.S. Dep't of Justice , 695 F.2d 1189, 1194 (9th Cir. 1983) ; see also Wiener , 943 F.2d at 985 (same). For example, in Binion we found that withheld documents pertaining to an FBI investigation of a presidential pardon were subject to Exemption 7 because "FBI pardon applicant investigations are authorized by federal regulation and are part of the duties of this law enforcement agency." 695 F.2d at 1194.²

Our precedents rest on the premise that Exemption 7 cannot be used as "pretext" to withhold documents related to "generalized monitoring and information-gathering that are not related to the [agency's] law enforcement duties." Rosenfeld , 57 F.3d at 809 (quoting Lamont v. Dep't of Justice , 475 F.Supp. 761, 775 (S.D.N.Y. 1979) ). Thus, when the government collects information on individuals and groups, Exemption 7 is available only when the investigation has a rational nexus to a law that the agency is authorized to enforce, see id . at 810–11 (involving UC Berkeley's "Free Speech Movement" and other individuals); Church of Scientology , 611 F.2d at 748–49 (involving the Church of Scientology and founder L. Ron Hubbard), or a rational nexus to law enforcement duties, see Wiener , 943 F.2d at 985–86 (involving John Lennon).

In light of these decisions, the district court held that, with respect to investigatory materials, the FBI was required to identify a nexus to federal law that the agency sought to enforce, and that ruling is not at issue on appeal. But, the ACLU sought more here; it also requested documents compiled for general law enforcement purposes and not linked to a particular investigation. The district court held that our precedents also controlled the analysis in this distinct context.

We disagree. "[L]aw enforcement agencies such as the FBI should be accorded special deference in an Exemption 7 determination." Binion , 695 F.2d at 1193. Given such deference, the FBI can surely compile documents for law enforcement purposes without a pre-existing nexus to the enforcement of a specific federal law. For example, an FBI policy about when to seek warrants to search religious institutions and how to conduct searches of such locations would plainly be a document compiled for "law enforcement purposes." However, the document would not have a nexus to the enforcement of a particular statute until a search is conducted. It would instead apply to the enforcement of all or many of the statutes the FBI is charged with enforcing and to the FBI's law enforcement duties in general. Exemption 7 applies on its face to "records or information compiled for law enforcement purposes." 5 U.S.C. § 552(b)(7). It would be anomalous to deny the benefit of the Exemption to documents that plainly meet its facial requirements because, although they apply to the FBI's law enforcement duties, they are not yet tied to a particular investigation conducted pursuant to a particular federal law.

Nor does FOIA require us to do so. Although Exemption 7 originally applied only to "investigatory records," a 1986 amendment broadened it to cover "records or information." Freedom of Information Reform Act of 1986, Pub. L. No. 99-570, § 1802(a), 100 Stat. 3207, 3207-48–49. This amendment was intended to "resolve any doubt that law enforcement manuals and other non-investigatory materials can be withheld under [Exemption 7]." S. Rep. No. 98-221, at 23 (1983); see Tax Analysts v. IRS , 294 F.3d 71, 79 (D.C. Cir. 2002) ("[T]he legislative history makes it clear that Congress intended the amended exemption to protect both investigatory and non-investigatory materials, including law enforcement manuals and the like."). At the same time, Congress amended Exemption 7(E) to allow withholding of "records or information compiled for law enforcement purposes" to the extent production "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).³ Thus, the statutory scheme plainly contemplates that...