E. Schoenberg v. Fbi ( 2020 )

FILED
NOT FOR PUBLICATION
SEP 9 2020
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
E. RANDOL SCHOENBERG, No. 19-55696
Plaintiff-Appellant, D.C. No.
2:18-cv-01738-JAK-AGR
v.
FEDERAL BUREAU OF MEMORANDUM*
INVESTIGATION,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
John A. Kronstadt, District Judge, Presiding
Argued and Submitted May 8, 2020
Seattle, Washington
Before: KLEINFELD, W. FLETCHER, and RAWLINSON, Circuit Judges.
E. Randol Schoenberg appeals the district court’s order granting summary
judgment to the FBI under FOIA Exemption 7(C), which exempts from disclosure
certain records “to the extent that [their] production . . . could reasonably be
expected to constitute an unwarranted invasion of personal privacy.” 5 U.S.C.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
§ 552(b)(7)(C). We review the district court’s grant of summary judgment de
novo. We affirm. See Animal Legal Def. Fund v. FDA, 836 F.3d 987, 990 (9th
Cir. 2016) (en banc) (per curiam).
Schoenberg sought an order directing the FBI to produce, in unredacted
form, warrant materials related to a closed investigation into former Secretary of
State Hillary Clinton. The warrant authorized the search of the laptop computer of
former Congressman Anthony Weiner, whose then-wife Huma Abedin had served
as Clinton’s Deputy Chief of Staff. A large amount of correspondence between
Abedin and Clinton was allegedly on Weiner’s laptop. In response to
Schoenberg’s FOIA requests and subsequent litigation, the FBI released a copy of
the search warrant, warrant application, supporting affidavit, and warrant return,
redacting the name of the FBI Supervisory Special Agent (“SSA”) who had signed
the search warrant and supporting affidavit. Schoenberg now seeks the name of
the SSA.
Under Supreme Court and Ninth Circuit precedent, the identity of the SSA is
protected under Exemption 7(C). First, we agree with the district court that
disclosure of the SSA’s name implicates a “nontrivial or . . . more than [] de
minimis” personal privacy interest. Tuffly v. U.S. Dep’t of Homeland Sec., 870
F.3d 1086, 1092 (9th Cir. 2017) (quoting Yonemoto v. Dep’t of Veterans Affairs,
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686 F.3d 681, 693 (9th Cir. 2012)). “FBI agents have a legitimate interest in
keeping private matters that could conceivably subject them to annoyance or
harassment,” particularly when they were involved in “especially controversial”
investigations. Lahr v. Nat’l Transp. Safety Bd., 569 F.3d 964, 977 (9th Cir. 2009)
(quoting Hunt v. FBI, 972 F.2d 286, 288 (9th Cir. 1992)); see also Forest Serv.
Emps. for Envtl. Ethics v. U.S. Forest Serv. (“Forest Service”), 524 F.3d 1021,
1026 (9th Cir. 2008); Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157,
172–75 (2004). This interest is “stronger” where, as the district court found here,
the agent is a relatively low-ranking official. See Lahr, 569 F.3d at 977 (citing
Dobronski v. FCC, 17 F.3d 275, 280 n.4 (9th Cir. 1994)).
Second, we agree with the district court that Schoenberg failed to show that
“the public interest sought to be advanced is a significant one . . . and that the
information is likely to advance that interest.” Tuffly, 870 F.3d at 1092 (citing
Favish, 541 U.S. at 172). Schoenberg argues that the public has an interest in the
SSA’s improper behavior, but offers no evidence of official misconduct. See
Favish, 541 U.S. at 174 (requiring “more than a bare suspicion” of misconduct to
compel disclosure); Forest Serv. 524 F.3d at 1026.
We note that, in addition to the already released warrant materials, the Office
of the Inspector General of the Department of Justice has released a 568-page
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report analyzing the government’s conduct during the investigation into Secretary
Clinton. See U.S. Dep’t of Justice Office of the Inspector General, A Review of
Various Actions by the Federal Bureau of Investigation and Department of Justice
in Advance of the 2016 Election 1 (June 2018). Given the “substantial information
already in the public domain,” Forest Serv., 524 F.3d at 1028, the “marginal
additional usefulness of the [SSA’s] name[] in exposing government misconduct”
does not outweigh the SSA’s privacy interest, Lahr, 569 F.3d at 978 (internal
quotation marks omitted). That marginal usefulness is further diminished in light
of the SSA’s position in an investigation where critical decisions regarding the
warrant materials were made by superiors. See Forest Serv., 524 F.3d at 1025–26.
AFFIRMED.
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