Eric Garris v. Fbi ( 2019 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ERIC ANTHONY GARRIS, No. 18-15416
Plaintiff-Appellant,
D.C. No.
v. CV 13-02295 JSC
FEDERAL BUREAU OF
INVESTIGATION, OPINION
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of California
Jacqueline Scott Corley, Magistrate Judge, Presiding
Argued and Submitted June 12, 2019
Anchorage, Alaska
Filed September 11, 2019
Before: A. Wallace Tashima, William A. Fletcher,
and Marsha S. Berzon, Circuit Judges.
Opinion by Judge Tashima
2 GARRIS V. FBI
SUMMARY*
Privacy Act
The panel affirmed in part and reversed in part the district
court’s summary judgment in an action under the Privacy Act
seeking expungement of two separate threat assessment
memos created by the Federal Bureau of Investigation
(“FBI”).
The 2004 Memo detailed plaintiff Eric Garris’s posting of
an FBI “watch list” to Antiwar.com as well as other First
Amendment activity. The Halliburton Memo detailed an
upcoming Halliburton shareholder’s meeting and listed
Antiwar.com as part of a catalogue of sources on the meeting.
The panel first addressed discovery and evidentiary
challenges. First, the panel held that the district court did not
abuse its discretion in granting a protective order to the FBI
precluding Garris from deposing certain retired FBI agents.
Second, the panel agreed in part with Garris’ contention that
the district court abused its discretion by relying on a
declaration from FBI Special Agent Campi. The panel held
that the district court applied the wrong legal standard – by
employing a Freedom of Information Act (“FOIA”) standard
– when it accepted the Campi Declaration in toto, but the
error was harmless as to certain parts of the declaration,
which were sufficiently based on Campi’s personal
knowledge. The panel held that those of Campi’s statements
that went beyond matters of personal knowledge were purely
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
GARRIS V. FBI 3
speculative and should not have been admitted. Third, the
panel held that the district court did not abuse its discretion in
admitting the Declaration of FBI Special Agent Bujanda.
Unlike with the Campi Declaration, the district court
correctly recognized that the FOIA-specific knowledge
standard did not apply here, and properly applied the
traditional personal knowledge standard.
The panel held that unless a record is pertinent to an
ongoing authorized law enforcement activity, an agency may
not maintain it under section (e)(7) of the Privacy Act,
5 U.S.C. § 552(e)(7). The panel held that because the FBI
had not met its burden of demonstrating that the 2004 Memo
was pertinent to an ongoing law enforcement activity, it must
be expunged. The panel further held that the Halliburton
Memo, however, need not be expunged because it was
pertinent to an ongoing law enforcement activity.
COUNSEL
Vasudha Talla (argued), American Civil Liberties Union
Foundation of Northern California Inc., San Francisco,
California, for Plaintiff-Appellant.
Lewis S. Yelin (argued) and Michael S. Raab, Appellate
Staff; Alex G. Tse, United States Attorney; United States
Department of Justice, Civil Division, Washington, D.C.; for
Defendant-Appellee.
Adam Gershenson, Cooley LLP, Boston, Massachusetts;
David Houska and Maxwell Alderman, Cooley LLP, San
Francisco, California; for Amicus Curiae First Amendment
Coalition.
4 GARRIS V. FBI
Aiden Synnott, Luke X. Flynn-Fitzsimmons, William E.
Freeland, and Melina M. Memeguin Layerenza, Paul Weiss
Rifkind Wharton & Garrison LLP, New York, New York, for
Amici Curiae Knight First Amendment Institute at Columbia
University, Center for Constitutional Rights, Color of
Change.
Aaron Mackey, Camille Fischer, and Adam Schwartz,
Electronic Frontier Foundation, San Francisco, California, for
Amicus Curiae Electronic Frontier Foundation.
OPINION
TASHIMA, Circuit Judge:
Plaintiff-Appellant Eric Anthony Garris appeals the
district court’s grant of summary judgment in favor of the
Federal Bureau of Investigation (“FBI”) in an action under
the Privacy Act, 5 U.S.C. § 552a. Garris discovered that he
and the website Antiwar.com had been the subject of two
separate “threat assessment” memos (collectively, the
“Memos”) created by the FBI. The first, the “2004 Memo,”
detailed Garris’ posting of an FBI “watch list” to
Antiwar.com as well as other First Amendment activity. The
second, the “Halliburton Memo,”detailed an upcoming
Halliburton shareholder’s meeting and listed Antiwar.com as
part of a catalogue of sources on the meeting.
Garris seeks expungement of the Memos under the
Privacy Act, which provides that federal agencies shall
“maintain no record describing how any individual exercises
rights guaranteed by the First Amendment unless . . .
pertinent to and within the scope of an authorized law
GARRIS V. FBI 5
enforcement activity.” 5 U.S.C. § 552a(e)(7). The FBI
argues that, although both Memos describe protected First
Amendment activity, the records fall under the law
enforcement activity exception. Garris, however, contends
that the law enforcement activity exception does not apply
because the investigations detailed in both Memos have
ended and the Memos are not pertinent to an ongoing
authorized law enforcement activity. The question of
whether, even if a record’s creation was permissible under
the law enforcement activity exception, the record may not be
maintained under § (e)(7) unless its maintenance is pertinent
to an ongoing law enforcement activity, is one of first
impression in our Circuit. We hold that unless a record is
pertinent to an ongoing authorized law enforcement activity,
an agency may not maintain it under § (e)(7) of the Privacy
Act. Because the FBI has not met its burden of
demonstrating that the 2004 Memo is pertinent to an ongoing
law enforcement activity, it must be expunged. The
Halliburton Memo, however, need not be, because it is
pertinent to an ongoing law enforcement activity.
FACTUAL AND PROCEDURAL BACKGROUND
I. Factual Background
Garris is the founder, managing editor, and webmaster of
Antiwar.com.1 Antiwar.com is “an anti-interventionalist, pro-
peace,” non-profit news website, the mission of which is to
publish news, information and analysis on the issues of war
1
Joseph “Justin” Raimondo, the editorial director of Antiwar.com,
was also a plaintiff-appellant in this action but died during the pendency
of this appeal. His appeal has been dismissed. Accordingly, Garris is the
only remaining plaintiff-appellant.
6 GARRIS V. FBI
and peace, diplomacy, foreign policy, and national security,
as an alternative to mainstream media sources.
A. The FBI’s 2004 Threat Assessment Memo
In March 2004, the FBI’s Counterterrorism Division’s
Terrorism Watch and Warning Unit advised all field offices
that a post-9/11 “watch list,” that is, an FBI suspect list,
called “Project Lookout” had been posted on the Internet and
“may contain the names of individuals of active investigative
interest.” An FBI agent subsequently discovered a twenty-
two-page untitled Excel spreadsheet, dated 10/03/2001, on
Antiwar.com. The spreadsheet contained names and
identifying information, and appeared to be a possible FBI
watch list.
This discovery prompted the Newark, New Jersey, FBI
office to look further at Antiwar.com. The Newark office
subsequently identified on Antiwar.com another document,
written in Italian, which was accompanied by a second
twenty-two-page spreadsheet, dated 05/22/2002, that also
appeared to be an FBI suspect list. The second spreadsheet
was marked “FBI SUSPECT LIST” at the top of each page
and “Law Enforcement Sensitive” at the bottom.
The FBI memorialized this information in the 2004 Memo
with the subject “threat assessment: . . . Eric Anthony Garris
[and] www.antiwar.com.” In addition to detailing the
investigation and watch lists described above, the ten-page
2004 Memo described Antiwar.com’s mission and listed
Garris as the managing editor. The Memo also detailed the
results of law enforcement database searches for Garris and
references to Garris and Antiwar.com found in FBI records.
The Memo further stated that a Lexis Nexis search was run
GARRIS V. FBI 7
for Garris and Antiwar.com, and described six of the articles
found by the search, all of which describe articles, opinions,
statements, or speeches given by Garris or Raimondo. The
majority of these focus on Garris’ political views.
Additionally, the Memo noted that persons of interest to the
FBI had accessed or discussed Antiwar.com.
In a section for “analyst comments,” the Memo stated that
“[t]he discovery of two detailed Excel spreadsheets posted on
www.antiwar.com may not be significant by itself since
distribution of the information on such lists are wide spread,”
but “it is unclear whether www.antiwar.com may only be
posting research material compiled from multiple sources or
if there is material posted that is singular in nature and not
suitable for public release. There are several unanswered
questions regarding www.antiwar.com.”2 The 2004 Memo
concluded by recommending to the FBI San Francisco Field
Office that it further monitor Antiwar.com’s postings and
open a preliminary investigation to determine if Garris “[was]
engaging in, or ha[d] engaged, in activities which constitute
a threat to National Security on behalf of a foreign power.”
The FBI’s San Francisco Field Office declined the
recommendation, however, explaining that “it appears the
information contained [on Antiwar.com] is public source
information and not a clear threat to National Security,” and
“there does not appear to be any direct nexus to terrorism nor
2
The analyst comments also stated that “Eric Garris has shown intent
to disrupt FBI operations by hacking the FBI website.” FBI disclosures
show that the allegation that Garris threatened to hack the FBI was
erroneous and the result of a mistake made by an FBI agent; the charge
arose from Garris’ having forwarded to the FBI a hacking threat that
Antiwar.com had received.
8 GARRIS V. FBI
the threat of compromising current FBI investigations,” and
noting that Garris “[was] exercising [his] constitutional right
to free speech.”
Garris learned of the 2004 Memo in August 2011, after a
partially redacted version was released on a website. He
contends that his and the public’s awareness of the 2004
Memo caused him significant injury, including chilling of
speech, damaged reputation, and loss of funding and other
resources.
B. The FBI’s 2006 Halliburton Memo
In 2006, the FBI’s Oklahoma City Field Office created
the Halliburton Memo, a memorandum describing
information regarding an upcoming annual Halliburton
shareholders’ meeting in Duncan, Oklahoma. The
Halliburton Memo briefly described the Halliburton
company, its contracts with the Department of Defense and
prior affiliation with former Vice President Dick Cheney, and
the schedule and logistics for the shareholders’ meeting,
noting that the meeting had been “targeted by multiple
organized protest groups.” The Halliburton Memo also
included a list of websites that had posted information
regarding the shareholders’ meeting, of which Antiwar.com
was one. Garris learned of the Memo during this litigation.
II. Procedural Background
In October 2011, following his discovery of the redacted
2004 Memo, Garris filed Freedom of Information Act
(“FOIA”), 5 U.S.C. § 552, and Privacy Act requests seeking
disclosure of FBI records about him. After exhausting his
administrative remedies, on May 21, 2013, Garris filed this
GARRIS V. FBI 9
action seeking disclosure of documents under FOIA and the
Privacy Act. Separately, he filed requests with the FBI
pursuant to 5 U.S.C. §§ 552a(e)(7) and (d)(2) of the Privacy
Act, seeking expungement of all records maintained by the
FBI describing his exercise of his First Amendment rights.
The FBI ultimately denied Garris’ administrative requests for
expungement of records.
Garris subsequently filed his First Amended Complaint,
adding, as relevant here, a claim alleging that the FBI’s
creation and maintenance of the 2004 Memo violates
§ 552a(e)(7) of the Privacy Act, which provides that an
agency shall not maintain any “record describing how any
individual exercises rights guaranteed by the First
Amendment unless . . . pertinent to and within the scope of an
authorized law enforcement activity.” 5 U.S.C. § 552a(e)(7).
In July of 2015, Garris issued deposition subpoenas for
the two retired FBI agents who had written the 2004 Memo.
The FBI moved for a protective order to preclude the
depositions, arguing that depositions are not necessary to
decide summary judgment in Privacy Act § (e)(7) cases; that
the evidence would be duplicative of the FBI’s interrogatory
responses and the previously provided redacted files; that it
would burden the non-party officers; and that the evidence
would be irrelevant.
The district court granted the FBI’s motion “without
prejudice to Plaintiffs’ renewal of their request for additional
targeted discovery following receipt of Defendant’s Motion
for Summary Judgment.” At the hearing on the topic, the
court reasoned that it would be premature to depose the
former agents before learning what evidence the government
10 GARRIS V. FBI
would rely on, particularly given that it would be burdensome
to the retired agents. Garris did not renew his request.
The parties then filed cross motions for summary
judgment on Garris’ FOIA disclosure claims and claims
under the Privacy Act, covering, as relevant to this appeal,
expungement of the 2004 Memo and its attachments. In
support of its motion for summary judgment, the FBI
submitted the declaration of Andrew Campi, an “Assistant
Special Agent in Charge” of the FBI, who was currently
assigned to the Newark office (“the Campi Declaration”) and
stated that the 2004 Memo was created to protect national
security. Garris responded in his cross-motion for summary
judgment that the FBI should be precluded from relying on
the Campi Declaration because Campi was not at the Newark
field office at the time the Memo was compiled and therefore
lacked personal knowledge of the reason it was compiled.
The district court denied both parties’ motions with
respect to Garris’ disclosure claims under FOIA and the
Privacy Act, but granted summary judgment to the FBI on
Garris’ Privacy Act § (e)(7) claim for expungement of the
2004 Memo. The court also overruled Garris’ objections to
the Campi Declaration.
Because of Garris’ surviving disclosure claims, the FBI
released further documents. Based on these documents,
Garris moved for reconsideration of the district court’s order
granting summary judgment to the FBI on his § (e)(7) claim,
arguing that new documents produced by the FBI impacted
the pertinence of the 2004 Memo to an authorized law
enforcement activity. He also argued that two recently
produced documents gave rise to claims under § (e)(7),
including, as relevant here, the Halliburton Memo, reasoning
GARRIS V. FBI 11
that the Halliburton Memo’s inclusion of Antiwar.com in its
list of publicizing sources violated the Privacy Act and
requesting expungement. The district court denied his motion
for reconsideration regarding the 2004 Memo in part, and
ordered further briefing on Garris’ arguments regarding the
Halliburton Memo.
Both parties then filed motions for summary judgment
regarding the Halliburton Memo. The FBI submitted a
declaration from Agent Bujanda, the Assistant Special Agent
in Charge for National Security, in which Bujanda stated that
the Halliburton Memo documented the FBI’s collaboration
with local law enforcement to prepare for public safety
concerns. Garris objected to the declaration on personal
knowledge and hearsay grounds. Over these objections, the
district court granted summary judgment to the FBI,
concluding that the Halliburton Memo’s purpose was to
protect public safety and that it therefore fell under the law
enforcement activities exception.
The parties settled the remaining disclosure issues, and
the district court entered judgment on January 12, 2019.
Garris timely appealed his Privacy Act claims.
STANDARD OF REVIEW
This court reviews a grant of summary judgment de novo.
MacPherson v. IRS, 803 F.2d 479, 480 (9th Cir. 1986).
“Summary judgment is appropriate when, viewing the
evidence in the light most favorable to the non-movant, there
is no genuine issue of material fact,” Frudden v. Pilling,
877 F.3d 821, 828 (9th Cir. 2017), the substantive law was
correctly applied, MacPherson, 803 F.2d at 480, and the
movant is entitled to judgment as a matter of law.
12 GARRIS V. FBI
We review evidentiary decisions for abuse of discretion,
Block v. City of Los Angeles, 253 F.3d 410, 416 (9th Cir.
2001), including a lower court’s decision to grant a protective
order, In re Roman Catholic Archbishop of Portland in Or.,
661 F.3d 417, 423 (9th Cir. 2011). “A court abuses its
discretion when it fails to identify and apply the correct legal
rule to the relief requested, or if its application of the correct
legal standard was (1) illogical, (2) implausible, or
(3) without support in inferences that may be drawn from the
facts in the record.” Id. (citations and quotation marks
omitted).
DISCUSSION
I. Discovery and Evidentiary Challenges
A. Protective Order
The district court did not abuse its discretion in granting
a protective order to the FBI precluding Garris from deposing
certain retired FBI agents. The district court granted the
FBI’s motion for a protective order without prejudice,
reasoning that it would be premature to depose the former
agents before learning what evidence the government would
rely on, given that it would be burdensome to the retired
agents. The court specifically explained that Garris could
renew his request for discovery once the government filed a
motion for summary judgment. But Garris did not renew
deposition requests in his first summary judgment motion, in
his motion for reconsideration, or in his second motion for
summary judgment. Because the district court “only delayed
[Garris’] discovery until after the government filed its
summary judgment motion, and [Garris] never requested
additional discovery to respond to that motion under Fed. R.
GARRIS V. FBI 13
Civ. P. 56(f),” the district court did not abuse its discretion.
Lane v. Dep’t of Interior, 523 F.3d 1128, 1135 (9th Cir.
2008). And, because Garris “failed to follow the proper
procedures, it was within the district court’s discretion to
rule” on the claim at summary judgment. Id.We note that the district court granted the protective order
without determining if there was “good cause,” as is usually
required, Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th
Cir. 1975), on the basis that in FOIA and Privacy Act
disclosure cases, it is generally accepted that discovery is
limited and that courts may defer discovery until after
summary judgment without abusing their discretion and
without demonstrating specific “good cause.” See Lane,
523 F.3d at 1134 (“[I]n FOIA and Privacy Act [disclosure]
cases discovery is limited because the underlying case
revolves around the propriety of revealing certain documents.
Accordingly, in these cases courts may allow the government
to move for summary judgment before the plaintiff conducts
discovery.” (citation omitted)).
Although the district court did not abuse its discretion in
this case, going forward there is good reason to believe that
the special consideration afforded to FOIA and Privacy Act
disclosure cases—which involve a plaintiff’s request for
documents to be released—should not apply to substantive
Privacy Act cases—which involve the propriety of the
creation of such documents by the agency in the first place,
as well as their continued maintenance. See Lane, 523 F.3d
at 1134–35 (explaining that discovery may have been
warranted for Lane’s substantive Privacy Act claim because,
“[u]nlike the FOIA claim or the access to records Privacy Act
claim, the improper access Privacy Act claim did not revolve
around the propriety of disclosing certain documents”).
14 GARRIS V. FBI
B. Declarations
Garris also argues that the district court abused its
discretion by relying on the Campi and Bujanda Declarations.
We address each in turn.
1. Campi Declaration
First, Garris contends that the court abused its discretion
by relying on the Campi Declaration. We agree in part. For
an affidavit to be admissible to support summary judgment,
the affidavit must “be made on personal knowledge.” Fed. R.
Civ. P. 56(e); Block, 253 F.3d at 419.
We agree with Garris that the district court applied the
wrong legal standard when it accepted the Campi Declaration
in toto. Campi was employed by the FBI at the time the 2004
Memo was written, but he did not work at the Newark office
at the time or have any personal involvement with the threat
assessment. Despite this, the district court accepted that
Campi had adequate personal knowledge for all the
statements in his declaration because “[c]ourts routinely deny
hearsay and lack of personal knowledge objections in FOIA
cases based on agency affidavits similar to those submitted
here. . . . The same rationale applies equally here
notwithstanding Plaintiffs’ assertion of Privacy Act claims in
addition to the FOIA claims.” In doing so, the district court
relied on Lahr v. Nat’l Transp. Safety Bd., which explained
that “‘[a]n affidavit from an agency employee responsible for
supervising a FOIA search is all that is needed to satisfy’ the
personal knowledge requirement of Federal Rule of Civil
Procedure 56(e).” 569 F.3d 964, 990 (9th Cir. 2009) (quoting
Carney v. U.S. Dep’t of Justice, 19 F.3d 807, 814 (2d
Cir.1994)).
GARRIS V. FBI 15
This was error. The rule cited to by the district court is
specific to FOIA disclosure cases and exempts agents’
affidavits from the personal knowledge requirement. See,
e.g., id. (allowing agent’s affidavit without personal
knowledge because claim was a FOIA records request). But
the rationale behind exempting agency affidavits from the
personal knowledge requirement in FOIA disclosure cases
does not translate to substantive Privacy Act cases. The
purpose of agency affidavits in FOIA cases is to show
“whether the agency’s search was ‘reasonably calculated to
discover the requested documents,’” Maynard v. CIA,
986 F.2d 547, 559 (1st Cir. 1993) (quoting Safecard Servs.,
Inc. v. SEC, 926 F.2d 1197, 1201 (D.C. Cir.1991)), that is, the
methodology of the search. It makes sense that a supervisor
who did not personally perform the search would be able to
testify to that, as the supervisor would be familiar with the
method of storing, searching, and locating the agency’s
records. In a § (e)(7) Privacy Act claim, however, Garris
seeks to understand the FBI’s purpose in creating and
maintaining the specific document. An agent without
personal knowledge of these purposes can only speculate
about it or rely on hearsay statements of other agents.
The district court’s error was harmless, however, as to
certain parts of Campi’s declaration, which were sufficiently
based on personal knowledge. Campi had experience
working as a special agent for the FBI and had reviewed the
relevant documents, including the 2004 Memo and
attachments. Consequently, the portions of his declaration
discussing general FBI guidelines and procedures,
summarizing information clear from the face of the 2004
Memo, and analyzing the current relevance of the 2004
Memos were within his personal knowledge as a seasoned
16 GARRIS V. FBI
FBI agent. See Block, 253 F.3d at 419 (noting that personal
knowledge could be based on review of documents).
Those of Campi’s statements that go beyond those
matters, however, are purely speculative and should not have
been admitted. For example, Campi speculates after the fact
that the Memo included various articles to “provide context,”
and that Antiwar.com’s decision to post the watch list could
have “led to the compromise of then ongoing investigations
or alternatively lead to the harming or harassment of innocent
people.” These statements were offered to explain why the
2004 Memo was created, a fact of which Campi has no
personal knowledge. Therefore, it was error for the district
court to consider these statements.
2. Bujanda Declaration
As for the Bujanda Declaration, the district court did not
abuse its discretion. First, unlike with the Campi Declaration,
the district court correctly recognized that the FOIA-specific
personal knowledge standard does not apply here—where a
declaration is relied upon to establish the purpose of a
historical document—and applied the traditional personal
knowledge standard. Bujanda had been an FBI Special Agent
since 2002, although he did not work in the Oklahoma Office
until 2016, ten years after the Halliburton Memo was created.
Therefore, like Campi, Bujanda had sufficient personal
knowledge to opine on FBI policies, field office
responsibilities, and information clear on the face of the
Halliburton Memo. The declaration contains only one
statement clearly beyond Bujanda’s personal knowledge:
Bujanda relays hearsay regarding the Halliburton
shareholders meeting and concludes that local law
enforcement sought to ensure safety and preparedness for the
GARRIS V. FBI 17
event as a result. The district court did not abuse its
discretion in overruling Garris’ hearsay objections as to this
statement, however, because the FBI certified at the hearing
that it would be able to submit the hearsay evidence in an
admissible form at trial. See JL Beverage Co., LLC v. Jim
Beam Brands Co., 828 F.3d 1098, 1110 (9th Cir. 2016) (“at
summary judgment a district court may consider hearsay
evidence submitted in an inadmissible form, so long as the
underlying evidence could be provided in an admissible form
at trial”).
II. Privacy Act § (e)(7) Claims
Garris contends that the existence of the 2004 and
Halliburton Memos violates the Privacy Act. The Privacy
Act provides that federal agencies shall “maintain no record
describing how any individual exercises rights guaranteed by
the First Amendment unless . . . pertinent to and within the
scope of an authorized law enforcement activity.” 5 U.S.C.
§ 552a(e)(7). This is commonly referred to as the “law
enforcement activity” exception to § (e)(7). The question on
appeal is whether the Memos fall within that exception.
Garris argues that the FBI’s initial collection of the
Memos was not pertinent to an authorized law enforcement
activity and therefore violates the Act. Alternatively, he
argues that, regardless of whether the creation of the Memos
was justified under § (e)(7), because the investigations
underlying the Memos have concluded, the FBI’s
maintenance of the Memos is not pertinent to an authorized
ongoing law enforcement activity and therefore violates the
Act.
18 GARRIS V. FBI
The question of whether the Privacy Act requires records
to be pertinent to an ongoing law enforcement activity to be
maintained is one of first impression in this Circuit. For the
reasons described below, we hold that Privacy Act § (e)(7)
prohibits the FBI from maintaining records describing First
Amendment activity unless the maintenance of the record is
pertinent to and within the scope of a currently ongoing
authorized law enforcement activity. We further hold that the
FBI has not carried its burden of demonstrating that the
maintenance of the 2004 Memo is pertinent to an authorized
law enforcement activity; therefore, it must be expunged.
Because we so hold, we need not and do not address the
question of whether the creation of the 2004 Memo also
violated the Privacy Act. Finally, we hold that the FBI’s
maintenance of the Halliburton Memo does not violate the
Act.
A. Ongoing Authorized Law Enforcement Activity
Requirement
Accordingly, we turn to the question of whether,
assuming the creation of a record did not violate the Privacy
Act, the Privacy Act prohibits the FBI from maintaining a
record describing First Amendment activity if the record is
not pertinent to ongoing authorized law enforcement activity.
We begin by looking to the text of the Privacy Act.
Section (e)(7) states that agencies shall “maintain no record
describing how any individual exercises rights guaranteed by
the First Amendment . . . unless pertinent to and within the
scope of an authorized law enforcement activity.” 5 U.S.C.
§ 552a(e)(7). The statute defines “maintain” as “maintain,
collect, use, or disseminate.” 5 U.S.C. § 552a(a)(3). The
plain meaning of the word “maintain”is “[t]o keep up,
GARRIS V. FBI 19
preserve.” Maintain, Oxford English Dictionary (3d ed.
2000). And the plain meaning of the word “collect” is “to
gather, get together.” Collect, Oxford English Dictionary
(3d ed. 2000).
We presume that, because Congress defined maintain to
include “maintain” and “collect,” Congress intended the
provision to apply to distinct activities. See Bailey v. United
States, 516 U.S. 137, 146 (1995) (“We assume that Congress
used two terms because it intended each term to have a
particular, nonsuperfluous meaning.”). Therefore, we believe
the plain meaning of the text is clear. The word maintain, as
used in the Act, can be read as it is, or replaced with “collect”
(or “use,” or “disseminate”). Therefore, an agency may not
“maintain” a record describing how any individual’s
protected First Amendment activity “unless pertinent to and
within the scope of an authorized law enforcement activity.”
5 U.S.C. § 552a(e)(7). And an agency may not “collect” a
record describing any individual’s protected First
Amendment activity “unless pertinent to and within the scope
of an authorized law enforcement activity.” Id. Each act of
an agency must be justified to fall under the § (e)(7)
exception. Therefore, “to give each of these verbs its
meaning,” the most reasonable reading of the statute as a
whole is that the record must be pertinent to an authorized
law enforcement activity both “at the time of gathering, i.e.,
collecting, [and] at the time of keeping, i.e., maintaining.”
J. Roderick MacArthur Found. v. FBI, 102 F.3d 600, 607
(D.C. Cir. 1996) (Tatel, J., concurring in part and dissenting
in part). That is, if the agency does not have a sufficient
current “law enforcement activity” to which the record is
pertinent, the agency is in violation of the Privacy Act if it
keeps the record in its files.
20 GARRIS V. FBI
The FBI contends that the plain meaning of the statute is
that the law enforcement exception allows agencies to
“collect” and to “maintain” records so long as they were
pertinent to an authorized law enforcement activity at the
time of collection, and that to hold otherwise would be to read
a temporal limitation into the statute. But to accept the FBI’s
preferred reading would be to read the word “maintain” out
of the statute. If the FBI were right, Congress could have
stated that “an agency shall ‘collect no record describing how
any individual exercises rights guaranteed by the First
Amendment . . . unless pertinent to and within the scope of an
authorized law enforcement activity,’” or, “compiled for, and
within the scope of, an authorized law enforcement activity.”
Id. at 607 (alteration in original).
Applying the same analysis to one of the other statutory
definitions of maintain, “disseminate,” demonstrates why a
reading that divorces the authorized law enforcement activity
clause from the verb is untenable. The FBI’s proffered
reading would have it such that an agency may “[disseminate]
no record describing how any individual exercises rights
guaranteed by the First Amendment unless . . . [the record] is
pertinent to and within the scope of an authorized law
enforcement activity.” 5 U.S.C. § 552a(e)(7). This would
mean that, presuming the initial collection of the record was
relevant to an authorized law enforcement activity, the
agency could share the record, regardless of whether the
sharing of the record was relevant to a law enforcement
purpose. But a reading of § (e)(7) that would give blanket
approval to an agency to disseminate a record strains
credulity. And it would be even more odd for Congress to
have included one definition that was superfluous
(“maintain”) and one that was not (“disseminate”). The same
is true for the verb “use,” 5 U.S.C. § 552a(a)(3), which is
GARRIS V. FBI 21
clearly meant to regulate when an agency may use a record it
has already collected.
Moreover, this conclusion furthers the purpose of the Act.
The passage of the Privacy Act was spurred by congressional
concern in response to the explosion of computer technology,
which allowed for compilation and storage of data in
quantities not seen before, coupled with rightful and broad
condemnation of government surveillance programs
including Watergate and the FBI’s COINTELPRO. See
Steven W. Becker, Maintaining Secret Government Dossiers
on the First Amendment Activities of American Citizens: The
Law Enforcement Activity Exception to the Privacy Act,
50 DePaul L. Rev. 675, 679 (2000). In fact, the Act was
“designed to set in motion a long-overdue evaluation of the
needs of the Federal government to acquire and retain
personal information on Americans, by requiring stricter
review within agencies of criteria for collection and
retention” of such information. S. Rep. No. 93-1183, at 2
(1974) (Conf. Rep.), as reprinted in 1974 U.S.C.C.A.N. 6916,
6917 (emphasis added). Thus, Congress was clearly
interested in preventing both collection and retention of
records, with a strong eye to preventing the government from
maintaining “information not immediately needed, about law-
abiding Americans, on the off-chance that Government or the
particular agency might possibly have to deal with them in
the future.” MacPherson, 803 F.2d at 483 (quoting No. 93-
1183, at 57 (1974) (Conf. Rep.), as reprinted in 1974
U.S.C.C.A.N. 6916, 6971).
Our holding also is consistent with MacPherson, our only
opinion interpreting the § (e)(7) law enforcement exception.
There, IRS agents had compiled notes on and transcriptions
of MacPherson’s public speeches on tax protesting (refusing
22 GARRIS V. FBI
to pay taxes) in a “Tax Protest Project File.” Id. at 480.
MacPherson argued that the IRS’ maintenance of the file after
the agency realized that MacPherson had not participated in
or advocated illegal activity violated § (e)(7) of the Privacy
Act. Id. at 481–82. In holding that the IRS’ retention of the
file did not violate the Privacy Act, we did not ask whether
the creation of the record violated the Act, but looked only to
its maintenance. Id. at 484. And, in concluding that we must
“consider the factors for and against the maintenance of such
records of First Amendment activities on an individual, case-
by-case basis,” we explained, “[s]ection (e)(7) of the Privacy
Act, . . . is intended to restrict the information about
individuals’ First Amendment activities that the government
may collect and maintain at all,” and therefore a narrow
reading of the § (e)(7) exception “better serves the goal of
privacy.” MacPherson, 803 F.2d at 482, 484 (emphasis
added).
Our decision also aligns with that of the Seventh Circuit.
In Becker v. IRS, 34 F.3d 398 (7th Cir. 1994), the Seventh
Circuit held that the IRS had “not sufficiently justified the
maintenance of the documents in the Beckers’ files” because
the IRS’ proffered justification, that “it may maintain these
articles for possible future uses,” was untenable, given that
“any potential advantage to having these documents in the
Beckers’ files, at some uncertain date, is minuscule (and the
IRS does not elaborate on how this material would be
helpful).” Id. at 409. And later, the Seventh Circuit in
Bassiouni v. FBI, 436 F.3d 712 (7th Cir. 2006), concluded
that the FBI’s continued maintenance of records describing
Bassiouni’s First Amendment activities did not violate
§ (e)(7) of the Privacy Act, not because the act has no
separate and distinct maintenance requirement, but rather
because the FBI had demonstrated that the records were of
GARRIS V. FBI 23
continuing relevance to an authorized law enforcement
activity. See id. at 724–25 (“Furthermore, although the
Privacy Act certainly does not authorize collection and
maintenance of information of private citizens on the ‘off-
hand’ chance that such information may someday be useful,
it does not require law enforcement agencies to purge, on a
continuous basis, properly collected information with respect
to individuals that the agency has good reason to believe may
be relevant on a continuing basis in the fulfillment of the
agency’s statutory responsibilities.”) (emphasis added).
We recognize that the D.C. Circuit, in a split decision,
came to the conclusion urged by the FBI in J. Roderick
MacArthur Found., 102 F.3d 600. The panel majority
reasoned that “[t]he noun ‘record’ in § (e)(7) is modified in
only two ways: the record must be [1] pertinent to and
[2] within the scope of an authorized law enforcement
activity,” and that substituting the word “maintain” for
“collect” or “disseminate” “in § (e)(7) does nothing to change
what the adjective “pertinent” modifies. 102 F.3d at 603(internal quotation marks omitted). The panel majority also
explained that “the provision, as written, can[not] be read to
require that the maintenance of a record, as opposed to the
record itself, must be pertinent to an authorized law
enforcement activity.” Id. “One might argue that the
Congress meant to say that an agency may ‘maintain no
record relating to First Amendment activities unless doing so
would be pertinent to and within the scope of an authorized
law enforcement activity.’ But the Congress did not say that
. . . .” Id.We are not persuaded by this reasoning. First, the
“pertinent to . . . an authorized law enforcement activity”
clause does not modify only the noun “record,” because the
24 GARRIS V. FBI
noun “record” cannot be divorced from the verb “maintain.”
This connection makes sense when one considers the point of
the text: § (e)(7) is about what an agency is permitted, or not
permitted, to do. The verb is key. If we divorce the
“pertinent to” clause from the verb, the proscription becomes
nonsensical.
This observation is confirmed by reading s§ 552a(e)(7) as
a whole. In full, the section directs agencies to: “maintain no
record describing how any individual exercises rights
guaranteed by the First Amendment unless expressly
authorized by statute or by the individual about whom the
record is maintained or unless pertinent to and within the
scope of an authorized law enforcement activity.” 5 U.S.C.
§ 552a(e)(7). Thus, there are two exceptions contained in
§ (e)(7)—an exception for authorization by statute or by an
affected individual, and a law enforcement activity exception.
The two exceptions are parallel grammatically. And the first
exception necessarily modifies the verb “maintain,” not just
“record,” as it is quite evidently the maintenance that must be
authorized, not the record. The clause “by the individual
about whom the record is maintained” (emphasis added)
makes that much plain.
Second, the D.C. Circuit majority’s reading also requires
reading into the text words not written by Congress. The
D.C. Circuit majority would have us read the text as
“maintain no record describing how any individual exercises
rights guaranteed by the First Amendment unless [the record
is]. . . pertinent to and within the scope of an authorized law
enforcement activity.” 5 U.S.C. § 552a(e)(7). Our reading is
that the text requires that an agency “maintain no record
describing how any individual exercises rights guaranteed by
the First Amendment unless [the maintenance of the record
GARRIS V. FBI 25
is]. . . pertinent to and within the scope of an authorized law
enforcement activity.” Id. Both are clarified by adding
implicit text; ours has the added benefit of not also reading all
but one of the statutory definitions of the word “maintain” out
of the statute.
Third, as Judge Tatel explained in his partial dissent,
Congress has demonstrated that when it means only to
circumscribe the act of collection, it knows how to do so. See
J. Roderick MacArthur Found., 102 F.3d at 607–08; see also
5 U.S.C. § 552a(e)(2) (requiring that each agency shall
“collect information to the greatest extent practicable directly
from the subject individual when the information may result
in adverse determinations about an individual’s rights,
benefits, and privileges under Federal programs”);
§ 552a(k)(2) (regulating agency rulemaking for records made
up of “investigatory material compiled for law enforcement
purposes”); § 552a(k)(5) (regulating agency rulemaking for
records made up of “investigatory material compiled solely
for the purpose of determining suitability, eligibility, or
qualifications for Federal civilian employment, military
service”).
B. Application to the 2004 Memo
That ours is the correct reading is illustrated by the
application in this case. Turning first to the 2004 Memo, we
ask whether, assuming the creation of the memo was
acceptable, the maintenance of the Memo is pertinent to an
authorized law enforcement activity. The 2004 Memo
specifically details Garris’ protected First Amendment
activities, including his political views and articles he wrote,
allegedly to conduct a threat assessment prompted by the
posting of the FBI watch list. Notably, as the FBI concedes,
26 GARRIS V. FBI
the posting of the list was protected First Amendment
activity. The Newark Office then forwarded the 2004 Memo
to the San Francisco Office with a recommendation to open
a preliminary investigation. The San Francisco Field Office
declined to do so, explaining:
After reviewing the website, it appears the
information contained therein is public source
information and not a clear threat to National
Security. Furthermore, there does not appear
to be any direct nexus to terrorism nor the
threat of compromising current FBI
investigations. San Francisco opines that Eric
Garris and Justin Raimondo are exercising
their constitutional right to free speech.
The threat assessment and related investigation has therefore
definitively ended.
Our analysis does not end there, however. Even if an
investigation has ended, the retention of the record could still
be pertinent to an authorized law enforcement activity. The
government contends that such is the case here, because the
maintenance of the 2004 Memo would “serve to inform
ongoing and future investigative activity.”
“[C]onsider[ing] the factors for and against the
maintenance of such records of First Amendment activities,”
MacPherson, 803 F.2d at 484, the FBI’s maintenance of the
2004 Memo does not fall within the law enforcement
activities exception. The investigation did not merely
conclude—it concluded because the threat assessment did not
reveal a “threat to National Security,” “any direct nexus to
terrorism,” or a “threat of compromising current FBI
GARRIS V. FBI 27
investigations”; rather, the San Francisco Office concluded
that Garris and Raimondo were simply “exercising their
constitutional right to free speech.” Effectively, the threat
assessment turned up nothing more than protected First
Amendment activity. At that point, the record was no
longer—assuming it ever was—pertinent to an authorized law
enforcement activity.
Nor is this a case where the threat assessment was
relevant to a broader authorized law enforcement activity that
might require its maintenance. In MacPherson, for example,
we held that the IRS’ inclusion of MacPherson’s speeches in
the “Tax Protest Project File” did not violate the Privacy Act.
MacPherson, 803 F.2d at 480. There, although the file
included descriptions of MacPherson’s protected First
Amendment activity—namely, MacPherson’s speeches on tax
protesting—and although the IRS had concluded that
MacPherson did not engage in or advocate illegal
activity—the record was relevant to the larger ongoing
undertaking by the IRS of trying to prevent illegal tax
protesting, and the record was in a general tax protestor file,
not under MacPherson’s name. Id. at 480, 485, 485 n.9. The
IRS’ maintenance of the record fell within the law
enforcement activities exception because it was relevant to a
continuing IRS law enforcement effort. As to that effort,
MacPherson’s speeches both provided context and were
“incidental” surveillance. Id. at 484.
Similarly, in Bassiouni, the Seventh Circuit concluded
that the FBI’s maintenance of the record on Bassiouni that
included excerpts from a speech Bassiouni had given to the
Mid-America Arab Chamber of Commerce did not violate the
Privacy Act, even though the FBI conceded that Bassiouni
was not suspected of being a member of terrorist
28 GARRIS V. FBI
organization. 436 F.3d at 719, 724. The Seventh Circuit
explained that the maintenance of the file was pertinent to an
authorized law enforcement activity because the FBI had
“ongoing investigations into the threats posed by terrorist
groups, specifically those originating in the Middle East” and
“[b]ecause of the nature of these investigative activities, and
because of the breadth of Mr. Bassiouni’s contacts with the
Middle East, the FBI anticipates that it will continue to
receive information about Mr. Bassiouni.” Id. at 724(citations omitted). Bassiouni concluded that “[t]he Bureau’s
file on Mr. Bassiouni will provide context for evaluating that
new information,” and “perhaps more importantly, the public
Krupkowski Declaration states that the records are important
for evaluating the continued reliability of its intelligence
sources.” Id.Unlike the files at issue in MacPherson, the 2004 Memo
is on Garris specifically and is filed under Garris’ name, not
as part of a larger, valid investigation on another topic. See
MacPherson, 803 F.2d at 485 n.9 (noting that the outcome in
MacPherson may have been different if “the records were
filed under his name rather than in a general ‘tax protestor’
file”). Here, the threat assessment was prompted by the
posting of the watch list, which was itself protected First
Amendment activity. The assessment revealed political
views and articles by Garris—also protected First
Amendment activity. The contents of the Memo, Garris’
political views, are apropos of nothing except Garris’ political
views, and the FBI has failed to offer any connection between
Garris’ protected First Amendment activity as described in
the Memo and any specific investigation under the FBI’s
purview. Cf. MacPherson, 803 F.2d at 484; Bassiouni,
436 F.3d at 724.
GARRIS V. FBI 29
It cannot be that maintaining a record of purely protected
First Amendment activity is relevant to an authorized law
enforcement activity simply on the representation that
maintaining the record would “serve to inform ongoing and
future investigative activity.” Maintenance of a record to
“inform ongoing and future investigative activity” is
acceptable when the record implicates a specific broader law
enforcement activity such as preventing terrorism, see
Bassiouni, 436 F.3d at 724, or preventing tax protests,
MacPherson, 803 F.2d at 484. But where, as here, the
relevance of a record filed under Garris’ name details purely
protected activity and has at best only speculative relevance
to an unstated law enforcement purpose, the agency does not
have “good reason to believe [that the record] may be
relevant on a continuing basis in the fulfillment of the
agency’s statutory responsibilities.” Bassiouni, 436 F.3d at724–25. Even if “[t]here is a remote possibility that a part of
the [2004 Memo] would be helpful in investigation of persons
in general,” it remains that “any potential advantage to having
[the 2004 Memo] . . . at some uncertain date, is minuscule.”
Becker, 34 F.3d at 409. Accordingly, the FBI has not carried
its burden to establish that the 2004 Memo is exempt from
Privacy Act requirements, and it must be expunged. See id.3
3
To the extent the 2004 Memo could be pertinent to national security,
it would be only because it reveals that there is no threat to national
security here. But that rationale could justify maintaining literally any
record. Such a fishing expedition into First Amendment protected activity
is precisely what the Act was meant to prevent. See Clarkson v. IRS,
678 F.2d 1368, 1378 (11th Cir. 1982) (Tjoflat, J., concurring)
(“[S]ubsection (e)(7)’s prohibition against collecting records that describe
how an individual exercises his first amendment rights should not be
circumvented by fishing expeditions disguised as ‘law enforcement
activity.’”). Such a holding would allow the “exception to swallow the
rule.” MacPherson, 803 F.2d at 484.
30 GARRIS V. FBI
C. Application to the Halliburton Memo
As for the Halliburton Memo, our analysis of that memo
illustrates the flipside of our holding regarding the 2004
Memo. MacPherson again is instructive. Like in
MacPherson, the Halliburton Memo is not filed under Garris’
name or even under Antiwar.com; rather, “Antiwar.com” is
listed in the Memo merely to provide context as to where
coverage of the shareholders’ meeting can be found. See
MacPherson, 803 F.2d at 485 n.9; id. at 484 (recognizing that
incidental surveillance of innocent First Amendment activity
may be necessary to ensure “completeness and accuracy of
the agency records”). And “[t]here is no allegation and no
indication that the records were used or intended to be used
for any other purpose than to give a complete picture,” id. at
484–85, of the necessary protections for the shareholders
meeting. Further, the Memo is of ongoing relevance to
coordination with “local law enforcement to prepare for an
annual meeting at which arrests had been made in the past.”
The Memo, which primarily describes security preparations
for an oft-protested meeting, only incidentally includes
protected First Amendment activity, and is relevant to
preparations for future iterations of the annual shareholders’
meeting. “Under these circumstances,” we hold that the
FBI’s “maintenance of records of [Antiwar.com’s] activities
fall within the ‘law enforcement activities’ exception to the
proscription of § (e)(7) of the Privacy Act.” Id. at 485.
CONCLUSION
Thus, we hold that to maintain a record, the government
must demonstrate that the maintenance of the record is
pertinent to a specific authorized law enforcement activity.
We want to be exceedingly clear. We are not holding that
GARRIS V. FBI 31
whenever an agency closes an investigation, the agency must
expunge the file because the law enforcement activity for
which the record was created (or received) has ended. What
we are holding is that, if the investigation is closed (or even
if it is not), and if the government cannot articulate a
sufficient law enforcement activity to which the maintenance
of the record is pertinent, the maintenance of the record
violates the Privacy Act. The reason for maintenance, so long
as it is valid and not pretextual, need not be the same reason
the record was created. Thus, in plenty of cases, the end of an
investigation will not require a record to be expunged because
the maintenance of the record will have some pertinence to an
articulable, authorized law enforcement activity. See, e.g.,
MacPherson, 803 F.2d at 485. But such is not the case here,
where the 2004 investigation was ended because it detailed
only First Amendment activity and did not implicate national
security. Thus, maintenance of a record that describes only
First Amendment activity and does not implicate national
security is not pertinent to the FBI’s authorized activities.
Maintenance for maintenance’s sake, without pertinence to
national security or other authorized law enforcement
activity, is precisely what the Act was intended to prevent.
We recognize that the statute as we understand it may
impose a non-negligible burden on the FBI. But this is a
feature, not a bug. Section (e)(7) is meant to limit what
government agencies may collect, maintain, and disseminate;
this is, by definition, a burden. The FBI can limit the extent
of this burden by being more discerning in deciding what
records to create.
Thus, we conclude that for the FBI to maintain a record
under § (e)(7) of the Privacy Act, the record’s maintenance
must be pertinent to and within the scope of an ongoing
32 GARRIS V. FBI
authorized law enforcement activity. Because we conclude
that the FBI has not carried its burden in establishing that the
2004 Memo is exempt from Privacy Act requirements, the
Memo must be expunged. The Halliburton Memo, however,
falls within the § (e)(7) exception and therefore may be
retained.
• ! •
The judgment of the district court is AFFIRMED in
part, REVERSED in part, and the case is REMANDED to
the district court with instructions to direct the FBI to
expunge the 2004 Memo. No costs.