Public Employees for Environmental Responsibility v. United States Section, International Boundary & Water Commission , 740 F.3d 195 ( 2014 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 10, 2013 Decided January 22, 2014
No. 12-5158
PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY,
APPELLANT
v.
UNITED STATES SECTION, INTERNATIONAL BOUNDARY AND
WATER COMMISSION, U.S. - MEXICO,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:11-cv-00261)
Paula Dinerstein 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 Ronald C. Machen
Jr., U.S. Attorney, and R. Craig Lawrence, Assistant U.S.
Attorney. Marian L. Borum, Assistant U.S. Attorney, entered
an appearance.
Before: KAVANAUGH, Circuit Judge, and SENTELLE and
RANDOLPH, Senior Circuit Judges.
2
Opinion for the Court filed by Circuit Judge
KAVANAUGH.
KAVANAUGH, Circuit Judge: Throughout the United
States, one finds a great deal of critical infrastructure, such as
bridges, airports, railroad tracks, dams, and research facilities.
Federal agencies possess many documents relating to critical
infrastructure. For understandable security reasons,
particularly in the wake of the September 11, 2001, attacks on
the United States and the threat of future attacks, federal
agencies sometimes want to keep that information
confidential. At the same time, members of the public
sometimes want to review that sensitive information to see
what the government is up to and to help ensure that the
government is adequately protecting the country from harm.
Our task here is to interpret how the Freedom of Information
Act balances those competing interests.
For decades, this Court held that agencies could withhold
critical infrastructure records under FOIA’s Exemption 2,
which covers documents “related solely to the internal
personnel rules and practices of an agency.” 5 U.S.C.
§ 552(b)(2); see Crooker v. Bureau of Alcohol, Tobacco &
Firearms, 670 F.2d 1051 (D.C. Cir. 1981). In Milner v.
Department of the Navy, the Supreme Court ruled that
Exemption 2 does not encompass critical infrastructure
records because those records do not relate “solely to the
internal personnel rules and practices of an agency.” 131 S.
Ct. 1259, 1262 (2011). In an important concurring opinion,
however, Justice Alito explained that Exemption 7, which
encompasses certain records compiled for law enforcement
purposes, could cover some critical infrastructure records. Id.
at 1271-73 (Alito, J., concurring).
3
Public Employees for Environmental Responsibility,
known as PEER, is a non-profit organization dedicated to
educating the public about the activities of the U.S.
Government. PEER wants records related to two dams
located on the border between the United States and Mexico,
Amistad Dam and Falcon Dam. So PEER submitted a FOIA
request to the United States Section of the International
Boundary and Water Commission, the federal agency that
manages the dams. Citing security concerns, the U.S. Section
initially claimed that the records fell within Exemption 2.
After the Supreme Court’s decision in Milner, the U.S.
Section changed course, arguing that some requested records
were exempt under Exemption 5, some were exempt under
Exemption 7(E), and some were exempt under Exemption
7(F). Exemption 5 covers, among other things, agency
records that fall within the deliberative process privilege.
Exemptions 7(E) and 7(F) cover various kinds of law
enforcement records.
First, invoking Exemption 5, the U.S. Section withheld a
report about Amistad Dam that had been prepared by a panel
of expert advisors. The expert report discusses potential
structural deficiencies in the dam’s foundation and
embankment. Second, invoking Exemption 7(E), the U.S.
Section withheld portions of its emergency action plans for
Amistad Dam and Falcon Dam. The emergency action plans
contain guidelines outlining the steps that law enforcement
and emergency personnel should take in response to a failure
of the dams. Third, invoking Exemption 7(F), the U.S.
Section withheld a set of inundation maps displaying the
downstream areas and populations that would be affected if
the dams were to break. The District Court upheld the
claimed exemptions.
4
Here, we vacate and remand on Exemption 5 and the
expert report because a potentially dispositive factual question
is unresolved. We affirm the District Court’s judgment as to
Exemption 7(E) and the emergency action plans and as to
Exemption 7(F) and the inundation maps.
I
The United States Section is one component of the
International Boundary and Water Commission, a joint U.S.-
Mexico entity created by treaty to implement the two nations’
agreements regarding the Rio Grande River. One of the U.S.
Section’s functions is to manage dams along the river,
including Amistad Dam and Falcon Dam.
A non-profit organization known as Public Employees
for Environmental Responsibility submitted a FOIA request
to the U.S. Section seeking information about Amistad Dam
and Falcon Dam. PEER wanted to apprise the public of what
it believed to be hazards stemming from the U.S. Section’s
poor management of the dams.
In response to PEER’s request, the U.S. Section released
many of the requested records. But the U.S. Section withheld
three sets of records. First, the U.S. Section withheld a report
about Amistad Dam that had been prepared by a panel of
expert advisors. The report discusses potential structural
deficiencies in the dam’s foundation and embankment.
Second, the U.S. Section withheld portions of its emergency
action plans for Amistad Dam and Falcon Dam. The
emergency action plans contain guidelines outlining the steps
that law enforcement and emergency personnel should take in
response to a failure of the dams. Third, the U.S. Section
withheld a set of inundation maps. The maps display the
downstream areas and populations that would be affected if
5
the dams were to break. The maps also reveal the estimated
time it would take floodwater to reach downstream locations
and peak flow times at those locations.
After exhausting its administrative remedies, PEER
sought judicial review in the U.S. District Court for the
District of Columbia. The U.S. Section initially relied
primarily on Exemption 2 to justify its withholding of the
expert report, emergency action plans, and inundation maps.
Shortly after PEER filed suit, the Supreme Court decided
Milner v. Department of the Navy, 131 S. Ct. 1259 (2011).
That decision made clear that Exemption 2 does not cover
records relating to critical infrastructure. In response to
Milner, the U.S. Section invoked new exemptions to justify its
withholdings. The agency asserted that the expert report fell
within Exemption 5, that the emergency action plans were
covered by Exemption 7(E), and that the inundation maps
were exempt under Exemption 7(F). The U.S. Section moved
for summary judgment on those grounds. PEER cross-moved
for summary judgment, contesting the applicability of those
exemptions and arguing that the U.S. Section’s alleged bad
faith precluded reliance on the affidavits submitted in support
of the agency’s motion.
The District Court granted the U.S. Section’s motion for
summary judgment. The court ruled that the U.S. Section had
conducted an adequate search for the documents requested by
PEER, had properly withheld the three sets of records under
Exemptions 5 and 7, and had released all segregable material
in those records. See PEER v. USIBWC, 839 F. Supp. 2d 304(D.D.C. 2012). PEER timely appealed that decision.1 We
1
The District Court also concluded that Exemption 6 covered
personal contact information within the emergency action plans and
6
review the District Court’s grant of summary judgment de
novo. See CREW v. FEC, 711 F.3d 180, 184 (D.C. Cir.
2013).
II
PEER contends that the U.S. Section acted in bad faith
when it responded to PEER’s FOIA request and that the
District Court therefore should not have relied on the U.S.
Section’s affidavits in granting summary judgment. As
evidence of bad faith, PEER points out that the U.S. Section
both denied awareness of the expert report in its initial reply
to PEER and failed to uncover a set of inundation maps in its
initial FOIA search. But an agency’s failure to turn up every
responsive document in an initial search is not necessarily
evidence of bad faith. During a second search prompted by
PEER’s administrative appeal, the U.S. Section found the
expert report and the inundation maps. The agency then
quickly notified PEER that it had located the records. Under
our precedents, those actions do not suggest that the U.S.
Section was acting in bad faith. See Iturralde v. Comptroller
of the Currency, 315 F.3d 311, 315 (D.C. Cir. 2003);
Meeropol v. Meese, 790 F.2d 942, 953 (D.C. Cir. 1986).
PEER also seizes on picayune differences in the agency’s
various submissions to the District Court to contend that the
agency intentionally misled that court. PEER’s claims on this
score totter between the trivial and the speculative. Stated
simply, we agree with the District Court that PEER’s
allegations do not undermine the reliability of the agency’s
affidavits.
that Exemption 5 covered an email related to the emergency action
plans. PEER does not challenge either decision on appeal.
7
III
On the merits of its FOIA request, PEER first argues that
it is entitled to the expert report on structural deficiencies in
Amistad Dam. With respect to the expert report, the U.S.
Section asserted Exemption 5. That exemption covers “inter-
agency or intra-agency memorandums or letters which would
not be available by law to a party . . . in litigation with the
agency.” 5 U.S.C. § 552(b)(5). Exemption 5 incorporates the
deliberative process privilege. The expert report is plainly
deliberative and pre-decisional and therefore otherwise would
fall within the deliberative process privilege, as the District
Court concluded. The question is whether it is an “inter-
agency or intra-agency” report.
As its reference to “inter-agency” and “intra-agency”
records would indicate, Exemption 5 is most often invoked
for documents authored by officers or employees of a U.S.
government “agency.” See Department of the Interior v.
Klamath Water Users Protective Association, 532 U.S. 1, 8
(2001). For FOIA purposes, the term “agency” is defined to
mean, with certain exceptions not relevant here, “each
authority of the Government of the United States.” 5 U.S.C.
§§ 551(1), 552(f)(1). Because Congress defined “agency” to
include only authorities of the U.S. Government, “intra-
agency” and “inter-agency” are ordinarily read to refer only to
documents created by officers or employees within the U.S.
Government.
In the District Court, PEER asserted that officials of the
Mexican National Water Commission assisted in preparing
the expert report. A foreign entity such as the Mexican
National Water Commission is of course not an authority of
the U.S. Government. Therefore, according to PEER, if
8
officials of the Mexican agency assisted in preparing the
expert report, the expert report would not fall within the terms
of Exemption 5 – “inter-agency or intra-agency” – as those
terms are ordinarily interpreted.
As the U.S. Section correctly responds, however, this
Court has also interpreted the phrase “intra-agency” in
Exemption 5 to go beyond the text and include U.S. agency
records authored by non-agency entities if those records were
solicited by a U.S. agency in the course of its deliberative
process. See McKinley v. Board of Governors of the Federal
Reserve System, 647 F.3d 331, 336 (D.C. Cir. 2011). This
Court has referred to this as the “consultant corollary” to
Exemption 5.
The consultant corollary was addressed by the Supreme
Court in Klamath. Assuming without deciding that the
consultant corollary was valid, the Court held that the
corollary would not exempt records that had been created by
several Indian tribes and provided to a U.S. agency, the
Bureau of Reclamation. See Klamath, 532 U.S. at 12. The
Court reasoned that the corollary would not apply because the
tribes provided the records to the Bureau of Reclamation
“with their own . . . interests in mind” and as “self-advocates
at the expense of others seeking benefits inadequate to satisfy
everyone.” Id. In the wake of Klamath, we have confined the
consultant corollary to situations where an outside consultant
did not have its own interests in mind. See McKinley, 647
F.3d at 336-37.
Here, the U.S. Section argues that even if PEER is correct
that the Mexican National Water Commission assisted in
preparing the expert report, the Mexican agency did so in
order to advise the U.S. Section, not to advance the Mexican
9
agency’s own interests. For that reason, the U.S. Section
believes that the expert report falls within the consultant
corollary.
PEER disagrees, based on Klamath. PEER argues that,
like the Indian tribes in Klamath, the Mexican National Water
Commission is not a mere consultant to a U.S. agency. In
PEER’s view, foreign government entities may not be
characterized as mere consultants to an executive agency of
the U.S. Government, at least in this context. Therefore,
PEER argues that the consultant corollary cannot apply in this
case – and that Exemption 5 does not cover the expert report.
This is a legal issue of first impression. And it would be
unnecessary to resolve it if officials of the Mexican National
Water Commission did not actually assist in preparing the
expert report. The problem is that we do not know if officials
of the Mexican National Water Commission actually assisted
in preparing the expert report.2
If the Mexican agency did not assist in preparing the
expert report, the deliberative process privilege – and
therefore Exemption 5 – would cover the report.3 We
therefore vacate the District Court’s judgment as to
Exemption 5 and the expert report and remand for the District
Court to determine whether officials of the Mexican agency
assisted in preparing the expert report.
2
This factual issue was not resolved in the District Court
because the District Court found that Exemption 5 would apply
even if the Mexican National Water Commission assisted in
preparing the expert report.
3
If the Mexican agency did assist in preparing the expert
report, we take no position at this time on whether the expert report
would be covered by the consultant corollary.
10
IV
We next consider the emergency action plans and the
inundation maps. The U.S. Section asserted Exemptions 7(E)
and 7(F) to justify its withholding of those records. To fall
within any of the exemptions under the umbrella of
Exemption 7, a record must have been “compiled for law
enforcement purposes.” 5 U.S.C. § 552(b)(7). To fall within
Exemptions 7(E) and 7(F), release of a record also must
threaten a particular harm. Exemption 7(E) covers a record
where the record’s release “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.” Id. § 552(b)(7)(E). Exemption 7(F) covers a record
where the record’s release “could reasonably be expected to
endanger the life or physical safety of any individual.” Id.
§ 552(b)(7)(F).
We conclude that the emergency action plans and the
inundation maps were “compiled for law enforcement
purposes,” the threshold requirement for application of
Exemption 7. We also conclude that the release of the records
could lead to the harms listed in Exemptions 7(E) and 7(F).
Therefore, the U.S. Section permissibly withheld the
emergency action plans and the inundation maps.
A
To fall within Exemption 7, documents must first meet a
threshold requirement: that the records were “compiled for
law enforcement purposes.” 5 U.S.C. § 552(b)(7).
11
The term “law enforcement” in Exemption 7 refers to the
act of enforcing the law, both civil and criminal. See Tax
Analysts v. IRS, 294 F.3d 71, 77 (D.C. Cir. 2002); BLACK’S
LAW DICTIONARY 964 (9th ed. 2009) (defining “law
enforcement” as the “detection and punishment of violations
of the law”). Law enforcement entails more than just
investigating and prosecuting individuals after a violation of
the law. As Justice Alito explained in his important
concurrence in Milner, the “ordinary understanding of law
enforcement includes . . . proactive steps designed to prevent
criminal activity and to maintain security.” Milner v.
Department of the Navy, 131 S. Ct. 1259, 1272 (2011) (Alito,
J., concurring). “Likewise, steps by law enforcement officers
to prevent terrorism surely fulfill ‘law enforcement
purposes.’” Id.According to the Supreme Court, the term “compiled” in
Exemption 7 requires that a document be created, gathered, or
used by an agency for law enforcement purposes at some time
before the agency invokes the exemption. See John Doe
Agency v. John Doe Corp., 493 U.S. 146, 155 (1989). As
Justice Alito explained in Milner, “federal building plans and
related information – which may have been compiled
originally for architectural planning or internal purposes –
may fall within Exemption 7 if that information is later
compiled and given to law enforcement officers for security
purposes.” Milner, 131 S. Ct. at 1273 (Alito, J., concurring).
In this case, the U.S. Section therefore needs to establish that
the emergency action plans and the inundation maps were
created for law enforcement purposes or were later gathered
or used for such purposes.
This Court assesses an agency’s Exemption 7 claim of a
law enforcement purpose in a manner first articulated in Pratt
12
v. Webster, 673 F.2d 408 (D.C. Cir. 1982). See Tax Analysts,
294 F.3d at 76-79. If the agency’s principal function is law
enforcement, we are “more deferential” to the agency’s
claimed purpose for the particular records. Id. at 77. If the
agency has mixed law enforcement and administrative
functions, we will “scrutinize with some skepticism the
particular purpose claimed.” Id. (quoting Pratt, 673 F.2d at
418). That said, it is not evident that the Pratt formulation
adds all that much to the statutory text. What we must
initially do in any Exemption 7 case is assess whether the
document in question was compiled for law enforcement
purposes.
PEER insists that an agency must have some statutory
law enforcement function, in addition to a law enforcement
purpose for the particular records at issue, before the agency
can invoke Exemption 7. And PEER claims that the U.S.
Section does not have a law enforcement function. That
argument is wrong both on the law and on the facts.
On the law: Under the text of Exemption 7, the withheld
record must have been compiled for law enforcement
purposes; the withholding agency need not have statutory law
enforcement functions. See 5 U.S.C. § 552(b)(7). Congress
knew how to delimit a FOIA provision based on the functions
of the agency involved. See id. § 552(b)(7)(D) (referring to
records or information compiled by “criminal law
enforcement authority”). It chose not to do so here.
And on the facts: The U.S. Section does perform a law
enforcement function. The U.S. Section is a part of the
Interagency Committee on Dam Safety, which has the
statutory duty to establish programs and policies to “enhance
dam safety for the protection of human life and property.” 33
13
U.S.C. § 467e. That duty necessarily encompasses security
and prevention of criminal or terrorist attacks.
So on both the law and the facts, we reject the “agency
function” argument advanced by PEER. In light of the
statutory language, we focus instead on whether the
emergency action plans and the inundation maps were
compiled for law enforcement purposes.
The emergency action plans plainly were created for law
enforcement purposes; they describe the security precautions
that law enforcement personnel should implement around the
dams during emergency conditions. On the facts of this case,
it is also apparent that the inundation maps serve security
purposes – namely, to assist law enforcement personnel in
maintaining order and security during emergency conditions,
and to help prevent attacks on dams from occurring in the first
place. “Crime prevention and security measures are critical to
effective law enforcement as we know it.” Milner, 131 S. Ct.
at 1272 (Alito, J., concurring). In this context, preventing
dam attacks and maintaining order and ensuring dam security
during dam emergencies qualify as valid law enforcement
purposes under the statute. Because the emergency action
plans and the inundation maps were created in order to help
achieve those purposes, among others, they were “compiled
for law enforcement purposes.”
In short, the emergency action plans and the inundation
maps readily satisfy Exemption 7’s threshold “compiled for
law enforcement purposes” requirement.
B
Having concluded that the records meet the threshold
requirement of Exemption 7, we next address whether the
14
emergency action plans fall within Exemption 7(E) and
whether the inundation maps fall within Exemption 7(F).
1
The U.S. Section asserted Exemption 7(E) to withhold
the emergency action plans. Exemption 7(E) covers
documents that “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).4
4
Exemption 7(E) covers “techniques and procedures for law
enforcement investigations or prosecutions” as well as “guidelines
for law enforcement investigations or prosecutions.” 5 U.S.C.
§ 552(b)(7)(E) (emphases added). The exemption’s final,
qualifying clause requires that an agency demonstrate that the
disclosure of the records at issue “could reasonably be expected to
risk circumvention of the law.” Id. The “risk circumvention of the
law” requirement clearly applies to records containing “guidelines,”
because the requirement follows directly after the phrase “would
disclose guidelines for law enforcement investigations or
prosecutions.” Id. But courts have disagreed over whether the
requirement also applies to records containing “techniques and
procedures.”
This Court has applied the “risk circumvention of the law”
requirement both to records containing guidelines and to records
containing techniques and procedures. See, e.g., Blackwell v. FBI,
646 F.3d 37, 41-42 (D.C. Cir. 2011). By contrast, the Second
Circuit has held that the requirement applies only to records
containing guidelines. See Allard K. Lowenstein International
Human Rights Project v. Department of Homeland Security, 626
F.3d 678, 681-82 (2d Cir. 2010).
This case involves records containing guidelines, and thus the
“risk circumvention of the law” requirement clearly applies. So
15
Exemption 7(E)’s requirement that disclosure risk
circumvention of the law “sets a relatively low bar for the
agency to justify withholding.” Blackwell v. FBI, 646 F.3d
37, 42 (D.C. Cir. 2011). To clear that relatively low bar, an
agency must demonstrate only that release of a document
might increase the risk “that a law will be violated or that past
violators will escape legal consequences.” Mayer Brown LLP
v. IRS, 562 F.3d 1190, 1193 (D.C. Cir. 2009).
The emergency action plans contain guidelines that
inform emergency personnel how to manage a dam failure at
Amistad Dam or Falcon Dam from “event detection to
termination.” J.A. 62, Declaration of Steven Fitten at ¶ 23,
PEER v. USIBWC, No. 11-cv-00261 (D.D.C. Apr. 11, 2011).
Those guidelines describe the surveillance and detection of
the cause of an emergency dam failure as well as the process
for evaluating the dam failure when the emergency subsides.
The guidelines also set forth the security precautions that law
enforcement personnel should implement around the dams
during emergency conditions. The guidelines therefore
describe how law enforcement personnel might investigate
the cause of a dam failure. And because such investigations
may constitute “law enforcement investigations” when there
is suspicion of criminal sabotage or terrorism, we conclude
that the emergency action plans contain guidelines “for law
enforcement investigations or prosecutions.” 5 U.S.C.
§ 552(b)(7)(E).
As the U.S. Section reasonably explained, disclosing the
emergency action plans also “risks circumvention of the law
this case does not implicate the difference between this Court and
the Second Circuit. And in any event, given the low bar posed by
the “risk circumvention of the law” requirement, it is not clear that
the difference matters much in practice.
16
by those who might seek to exact the greatest amount of
damage against the public affected by a dam failure or flood
event.” J.A. 62, Declaration of Steven Fitten at ¶ 23.
Terrorists or criminals could use the information in the
emergency action plans to thwart rescue operations following
a dam failure or to obstruct attempts to investigate the source
of such a failure. Disclosure of the emergency action plans
would therefore risk circumvention of the law. We uphold
the U.S. Section’s invocation of Exemption 7(E) as to the
emergency action plans.
2
The U.S. Section invoked Exemption 7(F) in order to
withhold the inundation maps. Exemption 7(F) covers
records that, if disclosed, “could reasonably be expected to
endanger the life or physical safety of any individual.” 5
U.S.C. § 552(b)(7)(F). That language is very broad. The
exemption does not require that a particular kind of individual
be at risk of harm; “any individual” will do. Disclosure need
not definitely endanger life or physical safety; a reasonable
expectation of endangerment suffices. Cf. Mayer Brown LLP
v. IRS, 562 F.3d 1190, 1193 (D.C. Cir. 2009) (Exemption
7(E) similarly broad).
“[I]n the FOIA context, we have consistently deferred to
executive affidavits predicting harm to the national security,
and have found it unwise to undertake searching judicial
review.” Center for National Security Studies v. Department
of Justice, 331 F.3d 918, 927 (D.C. Cir. 2003). The
confluence of Exemption 7(F)’s expansive text and our
generally deferential posture when we must assess national
security harms means that, in Exemption 7(F) cases involving
documents relating to critical infrastructure, “it is not difficult
17
to show that disclosure may ‘endanger the life or physical
safety of any individual.’” Milner v. Department of the Navy,
131 S. Ct. 1259, 1272 (2011) (Alito, J., concurring).
Therefore, assuming an agency has met Exemption 7’s
threshold test, it will ordinarily be able to satisfy Exemption
7(F) for documents relating to critical infrastructure, such as
blueprints, maps, and emergency plans.
Here, the inundation maps fall comfortably within
Exemption 7(F). As the U.S. Section explained in its
declaration, disclosing the maps would give anyone seeking
to cause harm “the ability to deduce the zones and populations
most affected by dam failure.” J.A. 61, Declaration of Steven
Fitten at ¶ 22, PEER v. USIBWC, No. 11-cv-00261 (D.D.C.
Apr. 11, 2011). Terrorists or criminals could use that
information to determine whether attacking a dam would be
worthwhile, which dam would provide the most attractive
target, and what the likely effect of a dam break would be.
The record in this case includes an intelligence alert from
the Department of Homeland Security describing an alleged
plot by drug traffickers to blow up Falcon Dam. The alert
states that traffickers warned some local residents to evacuate
in advance of a possible attack on the dam. That record
evidence confirms what common sense suggests: The
inundation maps, if disclosed, could reasonably be expected
to endanger life or physical safety.
To be clear, Exemption 7(F) does not require concrete
evidence in every case. The terms “could” and “expected” in
Exemption 7(F) evince congressional understanding of the
many potential threats posed by the release of sensitive
agency information. An agency therefore need only
demonstrate that it reasonably estimated that sensitive
18
information could be misused for nefarious ends. The U.S.
Section has done so here.
PEER counters that Exemption 7(F) should not be
construed as broadly as its plain text would indicate. As
support, PEER cites the Second Circuit’s decision in ACLU v.
Department of Defense, 543 F.3d 59 (2d Cir. 2008), vacated,
558 U.S. 1042 (2009), which interpreted the term “any
individual” in Exemption 7(F) to require a particularized
threat to a discrete population rather than a diffuse risk to an
amorphous population. But even if we agreed with the
Second Circuit’s reading of Exemption 7(F), the Second
Circuit itself conveyed that a threat to the population living
downstream of a dam would be sufficiently specific to satisfy
the exemption. See id. at 81-82. In this case, the U.S. Section
points to the same kind of potential harm to a similarly
circumscribed population, meaning that the U.S. Section
would prevail even under the Second Circuit’s approach.
In short, the U.S. Section has connected the release of the
inundation maps to a reasonable threat of harm to the
population downstream of the dams. The inundation maps
fall within Exemption 7(F).
***
We vacate and remand the judgment of the District Court
with respect to its holding on Exemption 5 and affirm the
judgment of the District Court with respect to its holdings on
Exemptions 7(E) and 7(F).
So ordered.