Royce Corley v. DOJ ( 2021 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 2, 2021 Decided June 1, 2021
No. 19-5106
ROYCE CORLEY,
APPELLANT
v.
DEPARTMENT OF JUSTICE,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:14-cv-02157)
Noah B. Bokat-Lindell, appointed by the court, argued the
cause as amicus curiae in support of appellant. With him on the
briefs were David W. DeBruin and Ian Heath Gershengorn,
appointed by the court.
Royce Corley, pro se, filed the brief for appellant.
Peter C. Pfaffenroth, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were R. Craig
Lawrence and Jane M. Lyons, Assistant U.S. Attorneys.
Patricia K. McBride, Assistant U.S. Attorney, entered an
appearance.
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Before: TATEL and RAO, Circuit Judges, and SILBERMAN,
Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge TATEL.
TATEL, Circuit Judge: Appellant Royce Corley brought
suit under the Freedom of Information and Privacy Acts to
obtain records from the Department of Justice related to his
criminal prosecution. His case raises several issues, including
whether the Child Victims’ and Child Witnesses’ Rights Act
(“Child Victims’ Act”), 18 U.S.C. § 3509, qualifies as a FOIA
Exemption 3 withholding statute and, if so, whether it covers
the records Corley seeks. Because we agree with the
government that the answer to both questions is “yes,” and that
Corley’s other arguments are without merit, we affirm the
district court’s grant of summary judgment to DOJ.
I.
In 2013, a jury sitting in the U.S. District Court for the
Southern District of New York convicted Corley of three
counts of sex trafficking of a minor, 18 U.S.C. § 1591(a), and
one count of possession of child pornography, 18 U.S.C.
§ 2252A(a)(5)(B). See United States v. Corley, 679 F. App’x 1,
3 (2d Cir. 2017) (summary order). Following his conviction,
Corley alleges he sent three FOIA requests, two of which were
also made under the Privacy Act, to the Department of Justice.
DOJ denies that it received the first two, but acknowledges that
it received the third.
Corley alleges that he sent the first request to the
Department’s Mail Referral Unit in the Justice Management
Division. Compl. ¶ 15; see also 28 C.F.R. § 16.3(a)(2) (“A
[FOIA] requester may [] send requests to the FOIA/PA Mail
Referral Unit, Justice Management Division . . . . The Mail
Referral Unit will forward the request to the component(s) that
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it determines to be most likely to maintain the records that are
sought.”). According to Corley, the request sought data on the
demographics of sex trafficking defendants and victims from
2003 to 2013. Compl. ¶ 15. Having received no response,
Corley sent another letter “appeal[ing] the constructive denial”
of his request, id., to which he says he attached a copy of his
initial request, Mot. for Summ. J. 16, Joint Appendix (J.A.)
102. The Mail Referral Unit assigned Corley’s appeal a
tracking number and referred it to the Office of Information
Policy, which handles FOIA appeals. Mail Referral Unit
Acknowledgement Letter, J.A. 162; see also 28 C.F.R.
§ 16.8(a) (“A requester may appeal any adverse determinations
to [the Office of Information Policy].”).
Roughly eight months later, the Office of Information
Policy sent a letter rejecting what it called Corley’s “attempt[]
to appeal from the action of the Mail Referral Unit (MRU) on
[his] request for records concerning demographics of subjects
charged with sex trafficking.” Office of Information Policy
Response, J.A. 164. It explained that “Department of Justice
Regulations provide for a Freedom of Information Act
administrative appeal only after there has been an adverse
determination by an identified component.” Id. (citing 28
C.F.R. § 16.9(a) (2014)). And since “MRU ha[d] no record of
having received a FOIA request from [Corley]” nor “did
[Corley] identify any other component of the Department of
Justice from whose action [he] might be appealing,” there was
“no action for th[e] Office to consider on appeal.” Id.Accordingly, the Office closed Corley’s “appeal file.” Id.Corley claims that he sent his second FOIA request, also
brought under the Privacy Act, to the U.S. Attorney’s Office
for the Southern District of New York. Compl. ¶ 16. He sought
records related to himself, his alias “Ron Iron,” and his case.
Id. Again receiving no response, Corley sent a letter appealing
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the “constructive denial.” Id. The U.S. Attorney’s Office
forwarded the appeal to the Executive Office for United States
Attorneys, which processes requests for records maintained by
U.S. Attorneys’ Offices. Stone Decl. ¶¶ 6, 9, J.A. 77. The
request lay dormant until the filing of this lawsuit, after which
the Executive Office instructed the U.S. Attorney’s Office to
perform a search for responsive records. Id. ¶ 6, J.A. 77. The
Executive Office then released 93 pages of material in full and
58 pages in part. Id. ¶ 11, J.A. 78. It withheld 323 pages of
responsive records, including “the names, descriptions and
other personally identifiable information” of Corley’s victims.
Stone Decl. ¶¶ 11, 15–17, J.A. 78–79. To justify its
withholdings, the Executive Office invoked, among others,
FOIA Exemption 3, which authorizes withholding of certain
materials “specifically exempted from disclosure by statute.” 5
U.S.C. § 552(b)(3). The “statute” DOJ relied on was the Child
Victims’ Act, which restricts disclosure of “information
concerning a child [victim or witness].” 18 U.S.C.
§ 3509(d)(1)(A)(i). With respect to the Privacy Act, the
Executive Office withheld records under subsection (j)(2),
which allows an agency to “exempt any system of records”
from the relevant disclosure provisions if the agency “performs
as its principal function any activity pertaining to the
enforcement of criminal laws,” and the record system itself
consists of certain types of law enforcement information.
5 U.S.C. § 552a(j)(2).
Corley sent his third FOIA request, again also made under
the Privacy Act, to the FBI. This request used the same search
parameters as the one sent to the U.S. Attorney’s Office. Hardy
Decl. ¶ 5, J.A. 31. The FBI initially withheld all responsive
records pursuant to FOIA Exemption 7(A), which exempts
records that “could reasonably be expected to interfere with
enforcement proceedings,” 5 U.S.C. § 552(b)(7)(A), such as an
“investigative file,” Hardy Decl. ¶ 7, J.A. 31. Corley appealed
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to the Office of Information Policy, which affirmed the FBI’s
determination. Several months later, after the investigation
concluded, the FBI informed Corley that it would release 40
pages of responsive records and withhold 89, including those
that disclosed “the names[, ]descriptions . . . and other
identifying information” of Corley’s victims. Id. ¶¶ 11, 32, J.A.
32, 42. In support, the FBI relied on several FOIA exemptions,
including Exemption 3 and the Child Victims’ Act. Id. To
justify its withholdings under the Privacy Act, the FBI relied
on subsection (j)(2). Id. ¶¶ 23–25, J.A. 37–38.
The district court, over the course of three opinions,
granted summary judgment to DOJ. See Corley v. Holder, No.
14-cv-2157 (D.D.C. Mar. 30, 2016), ECF No. 29; Corley v.
Sessions, 280 F. Supp. 3d 164 (D.D.C. 2017); Corley v.
Department of Justice, No. 14-cv-2157, 2019 WL 1427432(D.D.C. Mar. 29, 2019). Corley appealed, and because he is pro
se, we appointed David DeBruin as amicus curiae on his behalf,
and his associate Noah Bokat-Lindell argued the case. Messrs.
DeBruin and Bokat-Lindell have more than ably discharged
their duties, and we thank them for their service.
At our direction, amicus briefed three issues: (1) whether
DOJ properly withheld documents relating to Corley’s victims
under Exemption 3 and, by extension, the Child Victims’ Act;
(2) whether DOJ failed to assert a defense to Corley’s Privacy
Act claim based on the Executive Office request; and (3)
whether DOJ should have construed Corley’s premature
administrative appeal as a new FOIA request.
II.
FOIA Exemption 3 authorizes agencies to withhold
records that are “specifically exempted from disclosure by
statute.” 5 U.S.C. § 552(b)(3). A statute qualifies for the
exemption if it “requires that . . . matters be withheld from the
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public in such a manner as to leave no discretion on the issue”
or if it “establishes particular criteria for withholding or refers
to particular types of matters to be withheld.” Id.§ 552(b)(3)(A). To withhold records under Exemption 3, an
agency must make two showings: “that the statute [] is one of
exemption as contemplated by Exemption 3,” and “that the
withheld material falls within the statute.” Larson v.
Department of State, 565 F.3d 857, 865 (D.C. Cir. 2009).
Amicus argues that DOJ has failed to satisfy its burden with
respect to both requirements. Specifically, amicus contends
that the Child Victims’ Act does not qualify as an Exemption 3
withholding statute and that, in any event, it does not protect
the documents in this case. We consider each argument in turn.
A.
The Child Victims’ Act addresses the treatment of “child”
victims and witnesses by the federal criminal justice system. It
defines a “child” as “a person who is under the age of 18, who
is or is alleged to be—(A) a victim of a crime of physical abuse,
sexual abuse, or exploitation; or (B) a witness to a crime
committed against another person.” 18 U.S.C. § 3509(a)(2).
Although much of the statute concerns children who
testify at trial, it also contains privacy protections for child
victims and witnesses. Subsection (d)(1) provides that “all
employees of the Government connected with the case” who
act “in connection with a criminal proceeding shall—(i) keep
all documents that disclose the name or any other information
concerning a child in a secure place to which no person who
does not have reason to know their contents has access” and
“(ii) disclose documents described in clause (i) or the
information in them that concerns a child only to persons who,
by reason of their participation in the proceeding, have reason
to know such information.” Id. § 3509(d)(1)(A), (B)(i).
Subsections (d)(2) and (d)(3) contain similar provisions that
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authorize sealing and protective orders for “information
concerning a child.” Id. § 3509(d)(2), (3). Subsection (d)(4)
limits the reach of these provisions: “[t]his subsection does not
prohibit disclosure of the name of or other information
concerning a child to,” among others, “the defendant, the
attorney for the defendant . . . or to anyone to whom, in the
opinion of the court, disclosure is necessary to the welfare and
well-being of the child.” Id. § 3509(d)(4).
We agree with the government that the Child Victims’ Act
unambiguously qualifies as an Exemption 3 statute. Stripped to
its essence, the statute provides that “all employees of the
Government” involved in a particular case “shall keep all
documents that disclose the name or any other information
concerning a child in a secure place” and disclose such
documents “only to persons who, by reason of their
participation in the proceeding, have reason to know such
information.” Id. § 3509(d)(1)(A)(i), (A)(ii), (B)(i) (emphasis
added). This two-part requirement, that documents “shall” be
kept “in a secure place” and disclosed “only” to authorized
personnel (as opposed to the general public), id., clearly
“requires that . . . matters be withheld from the public in such
a manner as to leave no discretion on the issue,” 5 U.S.C.
§ 552(b)(3)(A)(i).
This understanding of the Act’s privacy protections
accords with our court’s decision in United States v. Brice, 649
F.3d 793 (D.C. Cir. 2011). There, a criminal defendant
appealed the district court’s refusal to unseal “records of . . .
two material witness proceedings” that the district court had
“referred to” at sentencing. Id. at 794. He argued that the Child
Victims’ Act’s privacy protections gave him a “right of access”
to the sealed material. Id. at 797. Rejecting that contention, we
explained that “[b]y its terms . . . § 3509(d) is not an affirmative
8
disclosure statute but rather forbids disclosure of sensitive
information.” Id. (emphasis added).
Relying on the Supreme Court’s decision in Department
of Justice v. Julian, 486 U.S. 1 (1988), amicus contends that
the Child Victims’ Act does not qualify as an Exemption 3
withholding statute because “it does not fully prohibit
disclosure” as a result of subsection (d)(4), which states that the
Act’s privacy provisions “‘do[] not prohibit disclosure . . . to,’”
among others, “‘the defendant.’” Amicus Br. 28 (quoting 18
U.S.C. § 3509(d)(4)). Julian concerned two defendants’ FOIA
requests for their “presentence investigation reports.” 486 U.S.
at 3. DOJ argued that Federal Rule of Criminal Procedure 32
and the Parole Act authorized withholding of the reports
pursuant to Exemption 3. The two provisions mandated that
criminal defendants receive access to their presentence reports
at particular times, with exceptions for certain sensitive
information. Id. at 8–9. The Court held that neither provision
“specifically exempt[ed] the reports from disclosure,” pointing
out that Rule 32 and the Parole Act had been “recently changed,
not to protect the presentence report from disclosure, but to
ensure that it would be disclosed to the defendant.” Id. As our
court later explained, Julian hinged on the fact that Rule 32 and
the Parole Act “contain[ed] no language expressly denying”
access. Natural Resources Defense Council, Inc. v. Defense
Nuclear Facilities Safety Board, 969 F.2d 1248, 1252 (D.C.
Cir. 1992). By contrast, the Child Victims’ Act unambiguously
requires that government employees “shall . . . disclose
documents [concerning a child] or the information in them that
concerns a child only to persons who, by reason of their
participation in the proceeding, have reason to know such
information.” 18 U.S.C. § 3509(d)(1)(A)(ii) (emphasis added);
see also Brice, 649 F.3d at 797 (“The [Child Victims’ Act]
therefore does not afford a right of access.”).
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Subsection (d)(4)’s exemption of “disclosure . . . to the
defendant” has nothing to do with the Exemption 3 analysis.
Corley seeks these documents not as a criminal defendant
under subsection (d)(4), but rather as a member of the public
pursuant to FOIA. Except in limited circumstances under
Exemption 5 not present here, “‘[t]he identity of the requesting
party has no bearing on the merits’ of a FOIA request at all.”
Loving v. Department of Defense, 550 F.3d 32, 39 (D.C. Cir.
2008) (quoting Department of Justice v. Reporters Committee
for Freedom of the Press, 489 U.S. 749, 771 (1989)). This
principle rings especially true for Exemption 3, which, by its
terms, requires only that a statute withhold materials “from the
public,” rather than from the requester. 5 U.S.C.
§ 552(b)(3)(A)(i).
Amicus contends that the Act’s privacy protections “do
not clearly require withholding of records once a criminal trial
ends” because they apply only to those acting “‘in connection
with a criminal proceeding.’” Amicus Br. 30 (quoting 18
U.S.C. § 3509(d)(1)(A)). But one can act as the custodian of a
record “in connection with a criminal proceeding” long after
the criminal proceeding has ended. 18 U.S.C. § 3509(d)(1)(A).
Moreover, we seriously doubt that Congress intended that
sensitive information become publicly available as soon as a
criminal case ends.
B.
In the alternative, amicus argues that even if the Child
Victims’ Act’s privacy protections qualify as an Exemption 3
withholding statute, they do not apply to the documents at issue
because Corley’s victims are no longer minors. Recall that the
statute protects “documents that disclose the name or any other
information concerning a child.” 18 U.S.C. § 3509(d)(1)(A)(i).
According to amicus, the phrase “concerning a child” refers
only to victims and witnesses under eighteen and the
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documents Corley seeks concern victims who are now over
eighteen.
In support of its interpretation of the phrase “concerning a
child,” amicus relies on the statute’s definition of “child,” and
the Dictionary Act. The former defines “child” as an alleged
victim or witness “who is under the age of 18.” Id. § 3509(a)(2)
(emphasis added). The Dictionary Act provides that “unless the
context indicates otherwise[,] . . . words used in the present
tense include the future as well as the present.” 1 U.S.C. § 1.
Accordingly, amicus argues, “Congress’s decision to employ
the present tense [in the statutory definition] strongly suggests
that the statute refers to the subject’s current age.” Amicus Br.
31. In other words, the use of “is” in the statutory definition
means that whether information “concerns a child” depends on
whether the victim “is” a child at the time of the FOIA request.
Although this argument has some facial appeal, the
Dictionary Act, as noted above, does not apply when “the
context indicates otherwise,” 1 U.S.C. § 1, and here the
“context” does just that. The use of the word “concerning” in
relation to a document typically refers to the subject of the
document; a document concerns a given subject if it is about
that subject. And with respect to descriptions of the past, the
subject can be described in terms that reflect the subject’s
previous state rather than its current state. A history book about
Tsarist Russia concerns a monarchy even though Russia today
is not a monarchy. Here, the documents at issue concern
Corley’s minor victims in their capacity as minor victims.
Thus, they concern children. Consider a graphic photograph
depicting the abuse of a child who is now an adult. We would
colloquially use the present tense and say that the photograph
is of a child, or in the words of the statutory definition, “a
person who is under the age of 18,” even though the victim is
now an adult. 18 U.S.C. § 3509(a)(2) (emphasis added). Yet, it
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would be odd to say that the photograph is of a child but no
longer concerns a child.
True, several provisions of the Act appear to use the word
“child” to reference a person’s current age. For example,
subsection (i) provides that “[a] child testifying at or attending
a judicial proceeding shall have the right to be accompanied by
an adult attendant to provide emotional support to the child”
and that the court “may allow the adult attendant to hold the
child’s hand or allow the child to sit on the adult attendant’s lap
throughout the course of the proceeding.” Id. § 3509(i). But the
statute uses the phrase “concerning a child” only in the privacy
protections subsection, indicating that we should think about
age differently for those provisions.
Interpreting “concerning a child” to refer to the subject’s
age at the time of the offense accords with the statute’s purpose,
to protect minor victims’ and witnesses’ privacy. Again,
consider a graphic image depicting child abuse. If amicus were
correct, then Congress would have authorized the potential
release of a highly sensitive and private photograph as soon as
the victim’s eighteenth birthday. This strikes us as highly
unlikely, especially since some trials, such as Corley’s, occur
after victims turn eighteen. Cf. 18 U.S.C. § 3509(d)(2)
(provision of the Act mandating that “[a]ll papers to be filed in
court that disclose the name of or any other information
concerning a child shall be filed under seal”).
Amicus acknowledges that some information about minor
victims can be “undoubtedly sensitive,” but suggests that
agencies can prevent disclosure by invoking other FOIA
exemptions on a case-by-case basis. Amicus Br. 2. But the
Child Victims’ Act is a general-purpose statute that governs in
both FOIA and non-FOIA cases alike, and in these other
contexts, agencies may lack alternative avenues to prevent
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disclosure. And even if an agency may withhold the
information in a given scenario, it may have no mandate to do
so unless the Child Victims’ Act’s privacy protections apply.
Observing that Corley’s victims were no longer minors at
the time of his conviction, amicus suggests that the statute
could alternatively be read to protect information concerning
those who are still minors when a case goes to trial. This
interpretation, however, finds no support in the statute’s text.
Nothing in the Act connects the privacy protections to trials.
Indeed, most criminal cases end with a guilty plea, and we fail
to see how amicus’s proposed interpretation would apply in
such situations. Certainly, Congress has given no indication
that it wanted a victim whose culprit pleads guilty to go
unprotected.
III.
This brings us to amicus’s final two arguments.
First, amicus contends that DOJ forfeited any Privacy Act
defenses for Corley’s Executive Office request by failing to
assert distinct Privacy Act exemptions in the district court. See
5 U.S.C. § 552a(t)(1) (“No agency shall rely on any exemption
contained in section 552 of this title [FOIA] to withhold from
an individual any record which is otherwise accessible to such
individual under the provisions of this section.”). In its initial
summary judgment motion, in a section titled “Withholding
under the Privacy Act Is Proper,” DOJ argued that Corley’s
“case file” was exempt based on Privacy Act subsection (j)(2)
and 28 C.F.R. § 16.81. Mot. for Summ. J. 8–9, Supplemental
Appendix 39–40. The former authorizes agencies to
promulgate regulations exempting certain kinds of law
enforcement records from Privacy Act disclosure, see 5 U.S.C.
§ 552a(j)(2), and the latter exercises that authority for “United
States Attorneys Systems,” 28 C.F.R. § 16.81. DOJ’s motion,
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while hardly a model of clarity, did assert grounds for
withholding under the Privacy Act for the Executive Office
request. Indeed, DOJ’s reliance on 28 C.F.R. § 16.81 would
have made little sense otherwise.
Amicus insists that even if DOJ made such an argument in
its initial motion, it affirmatively waived all Privacy Act
defenses in its summary judgment reply brief by stating that the
Executive Office “did not withhold records under the Privacy
Act; rather, it withheld under FOIA exemptions.” Summ. J.
Reply 6, Corley v. Holder, No. 14-cv-2157 (D.D.C. Mar. 30,
2016), ECF No. 24. But as the Supreme Court has explained,
“[w]aiver is the intentional relinquishment or abandonment of
a known right” and cannot be the product of “inadvertent
error.” Wood v. Milyard, 566 U.S. 463, 474 (2012) (internal
quotation marks omitted). In that case, the Court found that a
party had waived a particular argument after it “express[ed] its
clear and accurate understanding” and “deliberately steered the
District Court away from the question.” Id. Given DOJ’s
assertion of the relevant Privacy Act exemption in its initial
motion, as well as its consistent effort to withhold records
throughout this litigation, we decline to treat its stray statement
in the reply brief as an “intentional” or “deliberate” choice to
waive all Privacy Act exemptions. Id. (internal quotation marks
omitted).
Second, pointing out that Corley attached a copy of his
initial request to his administrative appeal to the Justice
Management Division, amicus argues that DOJ should have
treated that appeal as a new FOIA request. But amicus cites to
no legal authority, nor are we aware of any, imposing such a
duty on DOJ. Indeed, just as a request must “reasonably
describe” the desired records, 5 U.S.C. § 552(a)(3)(A)(i), a
submission must be reasonably clear that its sender intends it
to be a new request. Cf. Truitt v. Department of State, 897 F.2d
14540, 544 (D.C. Cir. 1990) (“When, however, an agency
becomes reasonably clear as to the materials desired, FOIA’s
text and legislative history make plain the agency’s obligation
to bring them forth.”). Here, DOJ treated Corley’s submission
as what it purported to be: an administrative appeal with
relevant supporting documents attached.
IV.
Finding the remaining arguments raised solely by Corley
to be without merit, we affirm the judgment of the district
court.
So ordered.