Ryan Shapiro v. DOJ , 893 F.3d 796 ( 2018 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 23, 2018 Decided June 26, 2018
No. 17-5122
RYAN NOAH SHAPIRO,
APPELLANT
v.
UNITED STATES DEPARTMENT OF JUSTICE,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:13-cv-00729)
Jeffrey Light argued the cause and filed the briefs for
appellant.
Jane M. Lyons, Assistant U.S. Attorney, argued the cause
for appellee. With her on the brief were Jessie K. Liu, U.S.
Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.
Before: ROGERS and TATEL, Circuit Judges, and
SENTELLE, Senior Circuit Judge.
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Opinion for the Court filed by Senior Circuit Judge
SENTELLE.
SENTELLE, Senior Circuit Judge: Pursuant to the
Freedom of Information Act (“FOIA”), 5 U.S.C. § 552,
appellant-plaintiff Ryan Shapiro sought records from the
Federal Bureau of Investigation (“FBI”) relating to a deceased
Internet activist. Following a search, the FBI released twenty-
one responsive pages but redacted portions pursuant to
exemptions from FOIA. Shapiro filed suit against the
Department of Justice (“DOJ”) for violating FOIA, arguing
that the FBI incorrectly asserted FOIA exemptions and that its
search was inadequate. During the pendency of the litigation,
the FBI identified additional responsive pages, but withheld
some of the additional pages and redacted portions of others
pursuant to FOIA exemptions. Shapiro asserted objections to
the FBI’s application of FOIA exemptions to these pages as
well. In a series of three opinions, the district court affirmed
the FBI’s assertion of FOIA exemptions and the adequacy of
the FBI’s search, granted the DOJ’s motion for summary
judgment, and denied Shapiro’s cross-motion for summary
judgment. Shapiro appealed.
We agree with the district court that the FBI met its
burden to demonstrate that its withholdings and redactions
were justified under the FOIA exemptions. Therefore, we
affirm the district court’s grant of summary judgment in favor
of the DOJ and denial of Shapiro’s motion for summary
judgment with regard to the FBI’s assertion of FOIA
exemptions. As to the adequacy of the FBI’s search, we
remand with respect to the records from FBI case identification
number 315T-HQ-C1475879-IP, serial 91 (“Serial 91”). The
FBI released a redacted version of Serial 91 to Shapiro
following oral arguments. Accordingly, as to Serial 91, we
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vacate the district court’s decision on the cross-motions and
remand to the extent that any further proceedings are necessary.
I. Background
On January 14, 2013, appellant-plaintiff Shapiro made
a FOIA request seeking FBI records “relating or referring to
the deceased person Aaron H. Swartz.” Swartz, the subject of
Shapiro’s FOIA request, committed suicide while awaiting a
criminal trial for alleged unauthorized computer intrusions.
“FOIA mandates broad disclosure of government
records to the public, subject to nine enumerated exemptions.”
Wolf v. CIA, 473 F.3d 370, 374 (D.C. Cir. 2007) (citation
omitted); see 5 U.S.C. § 552(b). In response to Shapiro’s FOIA
request, the FBI searched its Request Tracking System and its
Central Records System for variations of Swartz’s name and
appropriate cross-references. After reviewing twenty-three
responsive pages, the FBI released twenty-one pages in full or
in part, labeled Swartz-1 through Swartz-21, and deleted two
pages as duplicates, Swartz-22 and Swartz-23. Of the twenty-
one released pages, seventeen pages were redacted pursuant to
FOIA Exemptions 6 and 7. Exemption 6 protects personally
identifying or private information. 5 U.S.C. § 552(b)(6).
Exemption 7 allows the government to withhold “records or
information compiled for law enforcement purposes” if the
release of that information meets one of six conditions. Id.
§ 552(b)(7).
Shapiro administratively appealed the FBI’s FOIA
response, arguing that the FBI’s search was inadequate and that
the FBI erred in asserting FOIA exemptions. The FBI failed to
respond to Shapiro’s administrative appeal within the
statutorily mandated time. On May 20, 2013, Shapiro filed suit
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against the DOJ, as the FBI’s parent agency, for violating
FOIA.
On July 22, 2013, the DOJ moved for summary
judgment. The DOJ’s motion was supported by the declaration
of David Hardy, an FBI employee from the Records
Management Division, which explained the scope of the search
and the reasons for the FBI’s assertion of FOIA exemptions.
Shapiro opposed the DOJ’s motion, and filed a cross-motion
for summary judgment. Shapiro argued that the FBI’s search
was inadequate, complained of missing enclosures, argued that
the FBI improperly applied FOIA exemptions, and asserted
that the FBI should not have redacted the names of its
databases.
While the motions were pending, the FBI altered its
position regarding some of its redactions and submitted a
declaration from Dennis Argall, another FBI employee in the
Records Management Division. Argall’s declaration
acknowledged the identity of the database used by the FBI,
“Accurint,” because it posed “no harm,” and he rescinded a
reference to a different database, “Guardian,” that had been
made in error. Argall further stated that the FBI was releasing
“two enclosures” that Shapiro had identified as missing.
On March 31, 2014, the district court issued its first
opinion on the cross-motions for summary judgment. Shapiro
v. DOJ, 34 F. Supp. 3d 89 (D.D.C. 2014). To reach its opinion,
the district court performed an in camera inspection of the
unredacted documents. Id. at 93. The district court held that
the FBI appropriately applied FOIA Exemptions 6 and 7 to the
redactions on the responsive documents and granted in part
summary judgment in favor of the DOJ and denied in part
Shapiro’s cross-motion. Id. at 99-100. As to the adequacy of
the search, the district court held the cross-motions in abeyance
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until the FBI performed additional searches or provided further
explanation about why additional searches are unnecessary. Id.
While the motions were held in abeyance, the FBI
reviewed material released in connection with another
requester’s previously submitted FOIA request. The FBI
identified sixty-eight additional responsive pages generated
from this request that was not previously released to Shapiro,
labeled Swartz-24 through Swartz-91. However, the FBI
asserted FOIA Exemptions 3, 6, and 7, to redact or withhold
some of these documents. The FBI withheld nine pages,
redacted parts of twenty-three pages, deleted one page as a
duplicate, and released the remainder of the pages to Shapiro.
On September 7, 2016, the district court issued its
second opinion on the cross-motions for summary judgment.
Shapiro v. DOJ, 205 F. Supp. 3d 68 (D.D.C. 2016). The district
court relied on Hardy’s second and third declarations
describing the scope of the search and the FBI’s rationale in
asserting FOIA exemptions over the sixty-eight additional
pages. Id. The district court held that the FBI search was
sufficient, and granted the DOJ’s motion for summary
judgment as to the adequacy of the search and denied Shapiro’s
cross-motion on the same issue. Id. at 74-75. However, the
court also opined that the DOJ failed to offer sufficient
rationale for the FBI’s assertion of FOIA Exemptions 3 and
7(E), and once again held the cross-motions in abeyance for the
DOJ to provide additional briefing. Id.
In additional briefing, the FBI provided a fourth
declaration from Hardy, explaining its application of FOIA
exemptions. Shapiro withdrew his objection to the FBI’s
assertion of FOIA Exemption 3, but he continued to take issue
with the FBI’s assertion of FOIA Exemption 7(E), arguing that
the FBI had no valid reason to withhold items that came from
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the Accurint database. On April 20, 2017, the district court
issued its third opinion, “find[ing] that the government has
provided sufficient justification as to the documents it has
withheld pursuant to FOIA Exemption 7(E).” Shapiro v. DOJ,
249 F. Supp. 3d 502 (D.D.C. Apr. 20, 2017). The court granted
the DOJ’s motion for summary judgment, denied Shapiro’s
cross-motion, and entered final judgment in favor of the DOJ.
Shapiro timely appealed the district court judgment.
II. Analysis
Shapiro alleges error in three determinations by the
district court underlying its grant of summary judgment in
favor of the DOJ. First, Shapiro argues that the district court
erred by holding that the FBI’s search was adequate, arguing
that the agency failed to follow a reference to a case
identification number found in a responsive record. Second,
Shapiro argues that the district court erred by allowing the FBI
to assert FOIA Exemption 7(E) to withhold reports generated
by the Accurint database and the identity of the database.
Third, Shapiro argues that the district court erred by failing to
order the FBI to release Swartz-3A, 3B, 9A, 9C, and 56.
We review de novo a district court’s grant of summary
judgment. ACLU v. DOJ, 655 F.3d 1, 5 (D.C. Cir. 2011). “In
the FOIA context this requires that we ascertain whether the
agency has sustained its burden of demonstrating that the
documents requested are . . . exempt from disclosure under [ ]
FOIA.” Public Inv’rs Arbitration Bar Ass’n v. SEC, 771 F.3d
1, 3 (D.C. Cir. 2014) (alteration in original). Typically, the
agency demonstrates the applicability of a FOIA exemption by
providing affidavits regarding the claimed exemptions. See
ACLU v. Dep’t of Def., 628 F.3d 612, 619 (D.C. Cir. 2011). “If
an agency’s affidavit describes the justifications for
withholding the information with specific detail, demonstrates
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that the information withheld logically falls within the claimed
exemption, and is not contradicted by contrary evidence in the
record or by evidence of the agency’s bad faith, then summary
judgment is warranted on the basis of the affidavit alone.” Id.
Generally, “an agency’s justification for invoking a FOIA
exemption is sufficient if it appears ‘logical’ or ‘plausible.’”
Larson v. Dep’t of State, 565 F.3d 857, 862 (D.C. Cir. 2009).
A. Serial 91
We first consider Shapiro’s argument that the FBI’s
search was inadequate because it failed to release records from
Serial 91. Serial 91 is a case identification number associated
with Swartz’s personal web site, www.aaronsw.com. During
oral arguments, the government’s counsel averred that the FBI
would turn over this case file. Subsequently, the government
notified the Court that the FBI turned over these documents to
Shapiro, with redactions consistent with the redactions in the
other documents it had already released. Accordingly, with
respect to Serial 91, we vacate the district court’s grant of
summary judgment in favor of the DOJ and the district court’s
denial of Shapiro’s cross-motion for summary judgment, and
remand this issue to the court for any further proceedings
necessitated by the redactions.
B. Accurint Database
Shapiro next argues that the district court erred by
allowing the FBI to assert Exemption 7(E) to withhold
documents Swartz-83 through 89 because they were generated
by the Accurint database and redact the identity of the database.
The Accurint database is a commercially-available database
that provides public information, such as deeds, death
certificates, and court filings, to assist law enforcement
investigations and threat-tracking.
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To justify withholding records under FOIA Exemption 7,
the government must show that the documents are part of
“investigatory records compiled for law enforcement
purposes” and the government must also satisfy one of the
conditions within the exemption. Pratt v. Webster, 673 F.2d
408, 413 (D.C. Cir. 1982). The FBI asserts subpart 7(E) to
withhold information from the Accurint database, which
allows it to withhold responsive records “to the extent that the
production of such law enforcement records or
information . . . would disclose techniques and procedures for
law enforcement investigations or prosecutions, or 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).
Under this exemption, the FBI only needs to “demonstrate[]
logically how the release of [the requested] information might
create a risk of circumvention of the law.” Mayer Brown LLP
v. IRS, 562 F.3d 1190, 1194 (D.C. Cir. 2009) (alterations in
original). This is “a relatively low bar.” Blackwell v. FBI, 646
F.3d 37, 42 (D.C. Cir. 2011).
Withholding Accurint records is inappropriate, Shapiro
argues, because the FBI has already disclosed other records
from an Accurint search and acknowledged the existence of the
database, withdrawing its other 7(E)-based exemptions during
the course of this litigation. Shapiro supports his argument by
pointing out that Accurint is a commercially-available product,
and the publically-available User Guide lists every data field
available to search.
However, contrary to Shapiro’s reasoning, even if a
database is available and its search terms are available to the
public, the methods that the FBI uses to search the database and
what results it considers meaningful from Accurint’s large
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dataset can reveal law enforcement techniques and procedures.
We allow the FBI to withhold records under Exemption 7(E)
on the basis that releasing them would provide information on
how a database is “searched, organized and reported.”
Blackwell v. FBI, 646 F.3d at 42.
The fact that all Accurint’s search fields are listed in the
User Guide does not mean that the FBI must release
information that discloses specifically how it uses the search
functionality or which searches it performed in the Swartz case.
The FBI explained that, in this case, releasing these Accurint
searches would reveal information to criminals regarding the
“scope, capabilities, and vulnerabilities” of its investigations.
The FBI contends that releasing these documents could provide
information on its use of Accurint that would potentially allow
a criminal to deploy countermeasures to “throw [the] FBI off
their trail.” Though the capabilities of Accurint might be
known to the public, the FBI’s methods of managing the
database are generally not known.
Because the FBI has met its burden of providing a
logical explanation of how disclosing its Accurint search
methods could present a risk of circumvention of the law, we
affirm the district court’s grant of summary judgment in favor
of the DOJ on this issue.
C. Swartz-3A, 3B, 9A, 9B, and 56
Finally, Shapiro argues that the district court erred
when it did not order the release of Swartz-3A, 3B, 9B, 9C, and
56. Admittedly, the record is “less than artful” regarding the
status of these documents and the briefings reflect some
confusion between the parties.
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Shapiro contends that the Argall declaration states that
the FBI would release “two enclosures,” but he only received
one page (Swartz-9A). The DOJ clarified that Swartz-3A, 3B,
9A, 9B, and 9C were the contents of the two enclosures. The
FBI withheld four of these pages (Swartz-3A, 3B, 9B, and 9C)
pursuant to FOIA exemptions.
We disagree with Shapiro’s contention that the FBI
“failed to provide a justification” for withholding any of these
documents. Exhibit B to Argall’s declaration clearly states that
the FBI asserted Exemptions 6, 7(C), and 7(E) to withhold the
four pages. FOIA Exemption 7(C) allows the FBI to withhold
responsive records to protect the privacy rights of individuals
connected to a law enforcement investigation, such as
investigators, suspects, witnesses, and informants. 5 U.S.C.
§ 552(b)(7)(C); Sussman v. U.S. Marshals Serv., 494 F.3d
1106, 1115 (D.C. Cir. 2007).
Shapiro also argues that the district court erred in its
analysis because it assumed that Swartz-3A and 3B were
duplicates of Swartz-9B and 9C and that Swartz-9B and 9C
were only redacted in part rather than withheld in full. These
errors, Shapiro argues, means that the district court failed to
address his objection to the application of FOIA exemptions
with respect to these documents.
Even if the district court mistakenly assumed that
Swartz-3A and 3B were duplicates, that does not alter the
outcome of the analysis. See Shapiro, 34 F. Supp. 3d at 93.
The district court determined that the FBI’s redactions under
Exemptions 6 and 7(C) were personal information associated
with a law enforcement investigation and that disclosing the
personal information “would constitute an unwarranted
invasion of privacy.” Id. at 96-97. The district court’s analysis
is as applicable to Swartz-3A, 3B, 9B, and 9C, as it is to the
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other redacted or withheld documents under these FOIA
exemptions. For the reasons stated by the district court, the FBI
met its burden to demonstrate these exemptions were
applicable. Therefore, we affirm the district court’s grant of
summary judgment in favor of the DOJ with respect to Swartz-
3A, 3B, 9B, and 9C.
Next, Shapiro argues that Swartz-56 should have been
released because the FBI withdrew its assertion of Exemption
7(E) over this document. However, the FBI also asserted
Exemption 6, which it did not withdraw. Shapiro’s appeal does
not address the FBI’s application of Exemption 6. Therefore,
Shapiro is not entitled to have Swartz-56 released.
III. Conclusion
We affirm the district court’s grant of summary
judgment in favor of the DOJ and its denial of Shapiro’s cross-
motion for summary judgment, except for the records in Serial
91. With respect to Serial 91, we vacate the district court’s
grant of summary judgment in favor of the DOJ and its denial
of Shapiro’s cross-motion for summary judgment, and remand
to the extent that any additional proceedings on this issue are
necessary.
So ordered.