Broward Bulldog, Inc. v. U.S. Department of Justice

Case: 17-13787 Date Filed: 09/23/2019 Page: 1 of 79

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________

No. 17-13787
________________________

D.C. Docket No. 0:16-cv-61289-CMA

BROWARD BULLDOG, INC.,
a Florida not-for-profit corporation,
DAN CHRISTENSEN,
founder, operator, and editor of the BrowardBulldog.com website,

Plaintiffs-Appellants
Cross Appellees,

versus

U.S. DEPARTMENT OF JUSTICE,
FEDERAL BUREAU OF INVESTIGATION,

Defendants-Appellees
Cross Appellants.

________________________

Appeals from the United States District Court
for the Southern District of Florida
________________________

(September 23, 2019)
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Before WILLIAM PRYOR, MARTIN, and JORDAN, Circuit Judges.

WILLIAM PRYOR, Circuit Judge:

This appeal involves two requests for documents under the Freedom of

Information Act, 5 U.S.C. § 552. In 2015, Broward Bulldog, Inc., a newspaper

published in Florida, requested that the Federal Bureau of Investigation disclose

documents reviewed by the 9/11 Review Commission. Broward Bulldog and its

founder, Dan Christensen, contend that the Bureau has concealed a connection

between the terrorists responsible for the attacks on September 11, 2001, and a

Saudi family that lived in Florida. In response, the government disclosed hundreds

of documents but redacted some information as falling within statutory

exemptions, id. § 552(b)(1)–(9). Broward Bulldog challenged several redactions

and argued that the Bureau failed to conduct an adequate search. In a thorough

opinion, the district court granted summary judgment in favor of the government

for most of the redactions, but ordered the government to disclose personal

information redacted under Exemptions 6 and 7(C), as well as confidential-source

information redacted under Exemption 7(D). Broward Bulldog and Christensen

raise several challenges to the redactions, and the government cross-appeals the

disclosures ordered by the district court. We conclude that, with the exception of

its rulings regarding redactions under Exemptions 7(C), 7(D), and 7(E), the district

court did not err. We affirm in part, reverse in part, and remand.

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I. BACKGROUND

For years, Dan Christensen, the founder of a newspaper named Broward

Bulldog, Inc., has doggedly maintained that a Saudi Arabian family that lived in

Sarasota, Florida, had “troubling ties” with the hijackers responsible for the

terrorist attacks on September 11, 2001. In 2011, Broward Bulldog published an

article that stated that members of the family “abruptly left their luxury home” two

weeks before the attacks, that they had contact with the hijackers, and that the

Federal Bureau of Investigation investigated the family but failed to report the

investigation to Congress. The Bureau immediately admitted in a press release that

it investigated the family, but it denied that it found any connection between the

family and the attacks.

Undeterred, in 2011 Broward Bulldog filed a request under the Freedom of

Information Act for “records regarding the investigation of the family,” and it sued

the Bureau and the Department of Justice to compel a response. The Bureau

disclosed many responsive documents, including a 2002 “Electronic

Communication” by a Bureau agent. The agent stated that “[f]urther investigation

of the . . . family revealed many connections between the [family] and individuals

associated with the terrorist attacks on 09/11/2001.” The district court in that

litigation recently issued an opinion resolving Broward Bulldog’s challenge,

although it has not entered a final judgment. See Broward Bulldog, Inc. v. U.S.

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Dep’t of Justice (Broward Bulldog I), No. 12-cv-61735-WJZ (S.D. Fla. Aug. 22,

2019).

A few years later, in 2014, Congress directed the Bureau to create a 9/11

Review Commission, also known as the Meese Commission, to review the

implementation of recommendations made by an earlier commission. The Meese

Commission reviewed the investigation of the Saudi family and concluded that

“[t]he allegations that the family was connected to the hijackers and/or the 9/11

plot were not substantiated” and that the press accounts “were based on inaccurate

information and a poorly written and innaccurate [sic] [electronic

communication].”

Broward Bulldog filed two more requests for information in 2015. One

request sought information reviewed by the Meese Commission, and the other

asked for specific documents associated with the Commission. In June 2016,

Broward Bulldog again sued the Bureau and the Department of Justice to compel a

response to its requests.

The Bureau produced many documents in response to the requests. It first

released 896 pages of records that it located in an “electronic storage site” for

Commission records. It then released a few additional documents that it had

mistakenly withheld, and it disclosed two names that it had previously redacted.

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Finally, in response to informal inquiries from Broward Bulldog, the Bureau

searched a few other locations and disclosed several other records.

While the Bureau performed these additional searches, the government

moved for summary judgment or moved to supplement a pending motion for

summary judgment three times. In support of its motions, the government

submitted a variety of public and sealed documents. It submitted public

declarations by David Hardy, the section chief of the Record/Information

Dissemination Section of the Records Management Division of the Bureau. It

submitted sealed ex parte charts called Vaughn indices, see Vaughn v. Rosen, 484

F.2d 820 (D.C. Cir. 1973), that linked blocks of redacted text to the justifications

for any exemptions asserted. And it submitted sealed copies of all the responsive

documents for in camera review.

Broward Bulldog sought to depose Jacqueline McGuire, the Bureau agent

who briefed the Commission, and the district court referred the matter to a

magistrate judge. Broward Bulldog sought to depose McGuire to determine “the

basis for her assertion that the . . . ‘many connections’ memo was wholly

unsubstantiated.” According to Broward Bulldog, if she admitted that she had no

basis for the assertion, then it could “establish the bad faith of the [Bureau],” and a

finding of bad faith would, in turn, support its argument that the Bureau is “now

asserting exemptions to disguise what [it] found, which was substantial Saudi

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support for the 9/11 attacks.” But Broward Bulldog agreed with the magistrate

judge that “to get discovery [it had] to show [the government’s] bad faith” in its

disclosure, and Broward Bulldog repeatedly asserted that it had established the

government’s bad faith.

The magistrate judge denied the motion. He explained that Broward Bulldog

had not established that the government acted in bad faith in its disclosures and

that Broward Bulldog was trying to prove that “the [Bureau] had bad faith in the

way [it] conducted th[e] underlying investigation, not whether or not the [Bureau]

ha[d] bad faith in classifying and disclosing documents.” And it stated that, in any

event, McGuire “would have no information in regards to . . . whether or not

something was properly exempted . . . or whether or not the [Bureau] did a proper

search, because . . . there’s no evidence that she was involved in that process at

all.”

In an objection to this order, Broward Bulldog argued that the magistrate

judge applied the wrong standard for proving the government’s bad faith. But the

district court ruled that Broward Bulldog invited this error when it “agreed with

[the magistrate judge that] the correct legal standard” to obtain discovery required

a showing of bad faith by the government in its responses to the requests for

documents. So it “decline[d] to review on appeal a discovery issue that was not

properly presented to [the magistrate judge].”

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The district court issued three orders to resolve a long list of merits disputes

about the adequacy of the search by the Bureau and the applicability of different

exemptions to different documents. It ruled that Hardy’s declarations established

that the Bureau conducted an adequate search. It explained that “the law only

requires [a] search be reasonable, not exhaustive” and that the declarations were

“sufficiently detailed and non-conclusory, describing every step the [Bureau] took

to identify responsive records.” It also explained that the “conclusory” accusations

by Broward Bulldog that the Bureau was “act[ing] in bad faith . . . [we]re

insufficient” to bar summary judgment for the government.

The district court approved several, but not all, of the redactions. It upheld

the redactions made under Exemptions 1 and 3, which protect, among other things,

national security information. See 5 U.S.C. §§ 552(b)(1), (b)(3). It reasoned that

“[w]hile the burden of proof is on the [g]overnment, a reviewing court must

recognize that the Executive departments responsible for national defense and

foreign policy matters have unique insights into what adverse [e]ffects . . . might

occur as a result of public disclosure of a particular classified record.” And it ruled

that the government had satisfied its burden under that standard. Although

Broward Bulldog never moved for summary judgment, the district court also

ordered the government to disclose all but two blocks of texts redacted under

Exemptions 6 and 7(C), which protect information that implicates personal privacy

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rights. See id. §§ 552(b)(6), (b)(7)(C). The district court largely upheld the

redactions of confidential-source information under Exemption 7(D), see id. §

552(b)(7)(D), though it ordered the government to disclose information in

document 27 that it had redacted under that exemption. It upheld all the redactions

made under Exemption 5, see id. § 552(b)(5), which protects the deliberative

processes of an agency. And although the district court initially ruled that the

government had to disclose some of the text that the Bureau redacted as disclosing

law-enforcement techniques and procedures, it later granted a motion for

reconsideration and upheld all the redactions made under Exemption 7(E). See id.

§ 552(b)(7)(E). Finally, the district court refused to “consider the records produced

in Broward Bulldog I,” even though some of those records could be responsive to

the requests at issue. It explained that considering the records “could potentially

result in inconsistent findings in the two actions.”

II. STANDARD OF REVIEW

“This [C]ourt reviews a district court’s grant of summary judgment in a . . .

case [under the Act] de novo, viewing all facts and reasonable inferences in the

light most favorable to the non-moving party.” Miccosukee Tribe of Indians of Fla.

v. United States, 516 F.3d 1235, 1243 (11th Cir. 2008).

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III. DISCUSSION

The Freedom of Information Act codified “a strong public policy in favor of

public access to information in the possession of federal agencies.” News-Press v.

U.S. Dep’t of Homeland Sec., 489 F.3d 1173, 1190 (11th Cir. 2007) (citation and

internal quotation marks omitted). The Act requires that “each [federal] agency,

upon any request for records which (i) reasonably describes such records and (ii) is

made in accordance with published rules . . . , shall make the records promptly

available to any person.” 5 U.S.C. § 552(a)(3)(A). After an agency receives a

request for records, it may withhold information from responsive documents only

if it falls within one of nine statutory exemptions. See Milner v. Dep’t of Navy, 562

U.S. 562, 565 (2011). Because “[t]he purpose of [the Act] is to encourage public

disclosure of information,” responsive documents “are presumed to be subject to

disclosure unless [an agency] affirmatively establishes that the requested records

fall into one of [the] exemptions.” Office of Capital Collateral Counsel v. Dep’t of

Justice, 331 F.3d 799, 802 (11th Cir. 2003). But the Act also “expressly recognizes

that important interests are served by its exemptions, and those exemptions are as

much a part of [the Act’s] purposes and policies as [its] disclosure requirement.”

Food Mktg. Inst. v. Argus Leader Media, 139 S. Ct. 2356, 2366 (2019) (alterations,

adopted) (internal quotation marks omitted).

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Our review consists of three parts. At the outset, we review whether the

agency established “beyond a material doubt” that it “conducted a search

reasonably calculated to uncover all relevant documents.” Miccosukee Tribe, 516

F.3d at 1248 (quoting Ray v. U.S. Dep’t of Justice, 908 F.2d 1549, 1558 (11th Cir.

1990), rev’d on other grounds 502 U.S. 164 (1991)). We next determine “whether

the district court had an adequate factual basis for the decision rendered,” and then

determine whether the district court erred when it ruled on the applicability of each

exemption. Id. at 1258.

We divide our discussion in six parts. First, we explain that the Bureau

established that it performed an adequate search. Second, we explain that the

district court had an adequate factual basis to render a decision. Third, we explain

that Broward Bulldog has abandoned its challenge of the denial of its request to

depose Agent McGuire. Fourth, we explain that the district court did not err in

most of its rulings on the applicable exemptions. Fifth, we explain that the district

court did not err when it failed to make express findings of segregability. Sixth, we

explain that the district court did not err when it refused to entertain a request for

documents that were already the subject of a separate, nearly identical lawsuit.

A. The Bureau Established that It Performed an Adequate Search.

To establish the adequacy of a search for responsive documents, a

government agency “must show beyond a material doubt . . . that it has conducted

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a search reasonably calculated to uncover all relevant documents.” Id. at 1248

(alteration in original) (citation and internal quotation marks omitted). The agency

“may meet this burden by producing affidavits of responsible officials ‘so long as

the affidavits are relatively detailed, nonconclusory, and submitted in good faith.’”

Ray, 908 F.2d at 1558 (quoting Miller v. U.S. Dep’t of State, 779 F.2d 1378, 1383

(8th Cir. 1985)). If the agency satisfies this burden, “then the burden shifts to the

requester to rebut the agency’s evidence by showing that the search was not

reasonable or was not conducted in good faith.” Id.; see also Karantsalis v. U.S.

Dep’t of Justice, 635 F.3d 497, 500–01 (11th Cir. 2011).

Because “[t]he standard is one of reasonableness,” the Act “does not require

an agency to exhaust all files which conceivably could contain relevant

information.” Ray, 908 F.2d at 1558–59. So a requester cannot rebut a showing of

an adequate search by arguing that he received only a subset of the documents that

he thought existed. See id. at 1559 (“The plaintiffs’ emphasis o[n] a particular

reference to 582 interviews, while they received information regarding only 384

interviews, is not enough to rebut the government’s showing of an adequate

search.”). The agency “is not required . . . to account for documents which the

requester has in some way identified if it has made a diligent search for those

documents in the places in which they might be expected to be found.” Id. (quoting

Miller, 779 F.2d at 1385) (“[I]t is not necessary to create a document that does not

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exist in order to satisfy a . . . request[er].” (internal quotation marks omitted)). And

the “late production” of documents does not necessarily create an “adverse”

inference. Miccosukee Tribe, 516 F.3d at 1257. Instead, we must “evaluate the

reasoning behind the delay” to determine “what inference, if any, can be or should

be drawn.” Id.

The Bureau satisfied its burden by submitting declarations that were

“relatively detailed, nonconclusory, and submitted in good faith.” Ray, 908 F.2d at

1558 (quoting Miller, 779 F.2d at 1383). Hardy, the section chief of the

Record/Information Dissemination Section of the Records Management Division

of the Bureau, attested in his fifth declaration that employees of his Section

reasonably believed that all responsive documents would be located in an

“electronic storage site” associated with the Office of the Director. He explained

that employees of the Section contacted the Office and declined to search the

central records system, which houses investigative information, because Broward

Bulldog “sought specific documents relating to the 9/11 Commission Report, and

not investigative records.” Section employees provided a copy of the request to

two Office employees who served as liaisons to the Commission; the two

employees provided the Section employees with access to the “electronic storage

site” for the Commission; and they did not direct the Section employees to look

elsewhere because they “believed this electronic storage [site] contained all the

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9[/]11-Commission records [Broward Bulldog was] seeking.” The Section

employees then performed a “document-by-document search of all records on the

site” and identified over 800 pages of responsive records. They did not identify any

“leads to other locations where responsive records may have been maintained,” so

they “concluded that additional searches were not warranted.”

In response to inquiries from Broward Bulldog about specific missing

documents, the employees again corresponded with the Office employees. The

Office employees informed the Section employees, for the first time, of an

electronic file associated with the Commission and stored on the central records

system. The Office employees told the Section employees that they failed to

disclose this file earlier because they “believed all the information sought . . . was

housed in the electronic storage site.” The Section employees then performed a

“document by document search of all [of the] contents” of the electronic file. All of

the responsive documents were duplicates of the Commission records previously

found on the storage site maintained by the Office. During their correspondence

with the Section employees, the two Office employees also “mentioned the

existence at some point of additional records they believed to be destroyed”

because the documents were sent to the Records Storage and Maintenance Unit,

which was expected to maintain the documents for a year before destroying them.

The Section employees retrieved the documents, which had not yet been destroyed,

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performed a “document-by-document search,” and processed the responsive

documents for release.

Broward Bulldog argues that Hardy’s declaration failed to describe an

adequate search. It points out that Hardy failed to identify “the search terms the

[Bureau] used.” But Hardy did not identify any search terms because the Section

employees performed a “document-by-document search” of the electronic storage

site, the electronic file located on the central records system, and the Commission

documents sent to the Records Storage and Maintenance Unit. And contrary to the

argument of Broward Bulldog, Hardy’s declaration explained the basis for the

conclusion that responsive documents would not be located on the central records

system and why the Section employees relied on the Office employees to guide

their search. It was reasonable to decide not to search the central records system

because that system is indexed by “subjects of investigative interest,” and Broward

Bulldog sought the working papers of the Commission—which are not

investigative records. It made sense to rely instead on the personal knowledge of

two Office employees who served as liaisons to the Commission to identify where

responsive documents would be. Indeed, the file the Section employees ultimately

located on the central records system contained only duplicates of the records

found on the storage site the Office employees initially identified.

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Broward Bulldog stresses that the Bureau did not identify the persons in the

Director’s Office who searched for documents, but this omission is irrelevant.

After all, the Office employees performed no search. They instead identified the

locations that the Section employees searched. In any event, Hardy explained that

the Office employees were “liaisons to the Commission, who were directly

involved with” the work of the Commission. And there is “no general requirement

for an agency to disclose the identity and background of the actual persons who

process [Freedom of Information Act] requests.” Maynard v. Cent. Intelligence

Agency, 986 F.2d 547, 563 (1st Cir. 1993).

Broward Bulldog has failed to rebut the Bureau’s evidence that it conducted

an adequate search. It argues that the “failure [of the Bureau] to respond to [its]

requests in a timely fashion raised doubts in the context of this case,” and it

contends that the “sole” explanation for the delay “was that ‘unusual

circumstances’ prevented a timely production of records.” To be sure, the late

production of documents may support an “adverse” inference if the agency fails to

produce a reasonable explanation for the delay. See Miccosukee Tribe, 516 F.3d at

1257. But no adverse inference is warranted here. The district court explained that

the Bureau was initially delayed in processing the request “due to an

overwhelming[ly] large backlog of pending . . . requests and litigation” under the

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Act. And the government’s failure to meet the statutory deadlines does not support

an inference that it was acting nefariously, in any event.

Broward Bulldog complains that the Bureau released “piecemeal” batches of

documents “on the eve of important deadlines, like the deadlines for summary

judgment motions and trial,” but as the district court explained, Broward Bulldog

has offered nothing beyond speculation to support its assertion that the Bureau

sought “strategic advantage” by manipulating when it produced responsive

documents. Although the Bureau did not “exhaust all files which conceivably

could contain relevant information” when it first responded to the request, Ray,

908 F.2d at 1558–59, it did not have to do so. The initial search, together with the

continued efforts of the Bureau to provide responsive documents, satisfied the

burden to “conduct[] a search reasonably calculated to uncover all relevant

documents.” Id. at 1558 (citation and internal quotation marks omitted); see also

Miccosukee Tribe, 516 F.3d at 1256–57 (refusing to draw an “adverse” inference

even though “some de minim[i]s number of documents were overlooked in the

initial . . . search”). And we agree with the government that if we were to hold that

a later production of documents means that any initial search was inadequate, we

would effectively tell agencies not to perform any additional searches in response

to further inquiries.

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Broward Bulldog also argues that the Bureau failed to produce certain

documents, like transcripts of Commission interviews, but there is no evidence that

these documents exist in the first place. The Bureau “is not required . . . to account

for documents which the requester has in some way identified if it has made a

diligent search for those documents in the places in which they might be expected

to be found.” Ray, 908 F.2d at 1559 (quoting Miller, 779 F.2d at 1385). The

Bureau pursued all the leads it had, Broward Bulldog identified no other locations

for the Bureau to search, and Broward Bulldog offered no persuasive evidence that

the alleged documents even exist.

The amici newspapers argue that Broward Bulldog was “precluded” from

identifying missing documents because the government filed its first motion for

summary judgment before the Bureau completed its search, but in its briefs before

this Court, filed well after the Bureau completed its search, Broward Bulldog

offers no evidence that the transcripts exist. Broward Bulldog points only to the

Federal Advisory Committee Act, 5 U.S.C. app. 2, § 11(a), which it argues

requires agencies to make transcripts of advisory committee meetings available to

the public. Even assuming this law applies to the Commission, it would, at most,

prove that the Commission should have kept transcripts of its meetings, but we fail

to see how it proves that the transcripts Broward Bulldog seeks actually exist.

Mere speculation is not enough to rebut the showing by the Bureau. See Ray, 908

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F.2d at 1559 (“[I]t is not necessary to create a document that does not exist in order

to satisfy a . . . request[er].” (citation and internal quotation marks omitted)).

B. The District Court Had an Adequate Factual Basis to Render a Decision.

Broward Bulldog argues that the government failed to offer detailed

declarations to satisfy its burden to justify the exemptions it asserted. And it adds

that the district court failed to create a robust public record. We disagree.

We review whether the district court “had an adequate factual basis for the

decision rendered.” Miccosukee Tribe, 516 F.3d at 1258. We have held that an

adequate factual basis can “be provided through a singular method—such as

affidavits, a Vaughn Index, or an in camera review, or a combination of these

methods.” Id. at 1259. When a district court relies on declarations or Vaughn

indices, these documents are adequate if they supply “relatively detailed

justification[s], specifically identifying the reasons why a particular exemption is

relevant and correlating those claims with [a] particular part of a withheld

document.” Id. at 1258 (citation and internal quotation marks omitted).

We have also held that a district court has the discretion to conduct an in

camera review of the documents to determine whether the exemptions apply. Id.

But we have added that, because in camera review “undercuts the traditional

adversarial theory of judicial dispute resolution,” Currie v. Internal Rev. Serv., 704

F.2d 523, 530 (11th Cir. 1983) (quoting Mead Data Ctr., Inc. v. U.S. Dep’t of the

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Air Force, 566 F.2d 242, 250 (D.C. Cir. 1977)), a district court “should attempt to

create as complete a public record as is possible” before it resorts to in camera

review, Ely v. Fed. Bureau of Investigation, 781 F.2d 1487, 1493 (11th Cir. 1986)

(quoting Phillippi v. Cent. Intelligence Agency, 546 F.2d 1009, 1013 (D.C. Cir.

1976)). And in camera review should be used “in only the rare case such as

. . . where the disputed documents are relatively brief, few in number, and where

there are few claimed exemptions.” Currie, 704 F.2d at 531.

The district court rendered its decision after reviewing several declarations

and three sealed Vaughn indices and after conducting an in camera review of the

documents. The declarations and Vaughn indices provided “relatively detailed

justification[s], specifically identifying the reasons why a particular exemption

[wa]s relevant and correlating those claims with [a] particular part of a withheld

document.” Miccosukee Tribe, 516 F.3d at 1258. For example, the Bureau explains

that it redacted text in document 2 under Exemption 5 because it revealed

“preliminary recommendations on [Bureau] policies that have not been

implemented.” And the redacted text—two sentences under the heading

“Gaps/Possible Issues/Recommendations”—contains a specific preliminary

recommendation about how the Bureau should conduct future interviews.

Similarly, the government explains that it redacted text from document 5 under the

attorney-work-product privilege codified in Exemption 5 because the text revealed

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“attorneys’ strategies and assessments in anticipation of litigation,” including “the

thoughts, strategies, and opinions of [Civil] Division attorneys handling the

[relevant] matters.” The redacted text concerns specific plans that Department of

Justice attorneys had about several civil cases. These examples highlight how,

throughout its Vaughn indices and the supporting declarations, the government

disclosed “as much information in the withheld documents as possible without

waiving the privilege.” Miccosukee Tribe, 516 F.3d at 1261 (internal quotation

marks omitted). And “it is fair to say that both [Broward Bulldog] and the district

court were able to understand why each document or portion of a document was

withheld as exempt from disclosure, even without the in camera review,” and that

these documents provided an adequate basis for the decision rendered. Id.

Broward Bulldog argues that the justifications offered by the government

were inadequate because they contained “boilerplate language,” but we have never

suggested that an agency may not use similar language to justify withholding

information in multiple documents. After all, “[t]here are only so many ways” an

agency can claim the same exemption for related documents. Judicial Watch, Inc.

v. Food & Drug Admin., 449 F.3d 141, 147 (D.C. Cir. 2006) (“No rule of law

precludes [an agency] from treating common documents commonly.”). As the

District of Columbia Circuit explained in Larson v. Department of State, “an

agency’s response must logically fit the particular facts and circumstances of the

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case . . . but the fact that similar exemption explanations . . . suit similar cases . . .

is not a cause for further judicial inquiry.” 565 F.3d 857, 868 (D.C. Cir. 2009).

In addition, in camera review ensured that the district court had an adequate

factual basis to render a decision. It is “rare” for the government to provide Vaughn

indices, declarations, and the relevant documents for in camera review.

Miccosukee Tribe, 516 F.3d at 1259. But the government provided all three,

including sealed Vaughn indices that provide more specific explanations than those

that are in its public submissions. And in Currie, we were satisfied that the district

court had a sufficient factual basis when the government submitted allegedly

“conclusory affidavits” as well as the disputed documents for in camera review.

704 F.2d at 530. So the district court had a “more than an adequate basis for

determining the propriety of the exemption[s]” asserted here. Miccosukee Tribe,

516 F.3d at 1261.

On a final note, Broward Bulldog suggests that we must determine whether

the government made redactions in bad faith, but we disagree. Broward Bulldog

cites no decision that supports its proposal to require agencies to meet a

requirement of good faith before asserting a statutory exemption that would

otherwise apply. When reviewing courts consider good faith, they do so to

determine only whether to credit agency affidavits detailing the reasons why an

exemption applies or why a search was adequate. See, e.g., Judicial Watch, Inc. v.

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U.S. Secret Serv., 726 F.3d 208, 215 (D.C. Cir. 2013) (“[S]ummary judgment may

be granted on the basis of agency affidavits if they contain reasonable specificity of

detail rather than merely conclusory statements, and if they are not called into

question by contradictory evidence in the record or by evidence of agency bad

faith.” (citation and internal quotation marks omitted)). They do not refuse to apply

an otherwise applicable exemption because the agency may not have been

motivated solely by whatever purpose motivated Congress to create the exemption.

See, e.g., Rimmer v. Holder, 700 F.3d 246, 258 n.5 (6th Cir. 2012) (explaining that

the “discussion of agency bad faith [in another decision] was brought up in the

context of whether the agency should be required to submit its records to the

district court for an in camera review, and had nothing to do with the actual

applicability of . . . exemptions” (citation omitted)).

C. Broward Bulldog Has Abandoned Its Challenge Related to Its Request to
Depose Agent McGuire.

Broward Bulldog argues that the district court erred in denying its request to

depose McGuire, the Bureau agent who briefed the Commission on the Sarasota

investigation, but it has failed to challenge the determination by the district court

that the alleged error was invited. The district court explained that Broward

Bulldog could not argue that the magistrate judge erred when he required it to

prove the government’s bad faith in its disclosures to depose McGuire because

Broward Bulldog had “agreed with [the magistrate judge that that was] the correct

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legal standard.” And the district court “declin[ed] to review on appeal a discovery

issue that was not properly presented to [the magistrate judge].” To obtain a

reversal of that ruling, Broward Bulldog “must convince us that every stated

ground for the [ruling] against [it] is incorrect.” Sapuppo v. Allstate Floridian Ins.

Co., 739 F.3d 678, 680 (11th Cir. 2014). Because Broward Bulldog has failed to

challenge the determination that the invited-error doctrine applies, Broward

Bulldog has “abandoned any challenge of that ground, and it follows that the

[ruling] is due to be affirmed.” Id.

D. The District Court Erred in Only Some of Its Rulings on the Applicable
Exemptions.
We divide our discussion of the rulings on the applicable exemptions in five

parts. First, we conclude that the district court applied the correct standard of

review when it ruled on the redactions made under Exemptions 1 and 3. Second,

we explain that the district court misunderstood Exemption 7(C) and erred when it

refused to apply the exemption to redactions made in 17 documents. Third, we

explain that the district court erred when it applied Exemption 7(D) to redactions

made in documents 2 and 27. Fourth, we explain that, with two exceptions, the

district court committed no error in applying Exemption 7(E) to documents 2 and

22. Fifth, we explain that the district court did not err in upholding redactions

under Exemption 5 to documents 2, 5, and 22.

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1. Exemptions 1 and 3 (Executive-Order and Statutory Exemptions).

Exemptions 1 and 3 permit the government to withhold information that, if

disclosed, would compromise national security. Exemption 1 permits the

government to withhold information that is “specifically authorized under criteria

established by an Executive order to be kept secret in the interest of national

defense or foreign policy” and that is “properly classified pursuant to [that]

Executive order.” 5 U.S.C. § 552(b)(1). The relevant order, Executive Order

13526, provides that information may be classified if it “pertains” to “intelligence

activities (including covert action), intelligence sources or methods, or

cryptology.” Exec. Order No. 13526, 75 Fed. Reg. 707 (Dec. 29, 2009). Exemption

3 permits the government to withhold information “specifically exempted from

disclosure by statute,” if the statute “requires that the matters be withheld from the

public in such a manner as to leave no discretion on the issue” or “establishes

particular criteria for withholding or refers to particular types of matters to be

withheld.” 5 U.S.C. § 552(b)(3). And the National Security Act of 1947 directs the

Director of National Intelligence to “protect intelligence sources and methods from

unauthorized disclosure.” 50 U.S.C. § 3024(i)(1); see Cent. Intelligence Agency v.

Sims, 471 U.S. 159, 167–68 (1985).

The district court accorded “substantial weight” to the explanations provided

by the government for the redactions made under the two exemptions, and it

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determined that both exemptions apply to the material redacted from documents 3

and 5. It explained that, “[b]ecause of the possible strong implications for national

security, courts should defer to an agency’s decision to withhold information under

Exemptions 1 and 3.” So “[w]hile the burden of proof is on the [g]overnment, a

reviewing court must recognize that the Executive departments responsible for

national defense and foreign policy matters have unique insights into what adverse

[e]ffects . . . might occur as a result of public disclosures of a particular classified

record.” It then concluded, “[a]fter conducting a detailed review of the redactions,

in conjunction with the Hardy Declaration,” that the Bureau “provided ample

evidence [that] the redacted material is exempt from disclosure under Exemptions

1 and 3 because of national security concerns.”

Broward Bulldog argues that the district court applied the wrong standard of

review because it deferred to the Bureau. It contends that the Act requires de novo

review, 5 U.S.C. § 552(a)(4)(B), which bars the district court from giving

deference to the Bureau for Exemptions 1 and 3. We disagree.

The Supreme Court has explained that agency decisions to protect

information governed by the National Security Act under Exemption 3 “are worthy

of great deference given the magnitude of the national security interests and

potential risks at stake.” Sims, 471 U.S. at 179. And our sister circuits have

respected that admonition. See, e.g., Am. Civil Liberties Union v. U.S. Dep’t of

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Def., 628 F.3d 612, 619 (D.C. Cir. 2011) (“Because courts lack the expertise

necessary to second-guess . . . agency opinions in the typical national security . . .

case [under the Act], [they] must accord substantial weight to an agency’s affidavit

concerning the details of the classified status of the disputed record.” (citation and

internal quotation marks omitted)); Maynard, 986 F.2d at 555 (holding for the First

Circuit that “court[s] must accord substantial weight and due consideration to the

[Central Intelligence Agency’s] affidavits” under Exemption 3) (citation and

internal quotation marks omitted). Under Sims, the district court owed substantial

deference to the Bureau’s invocation of Exemption 3 even though the Bureau still

bore the burden of proving the applicability of that exemption.

Broward Bulldog’s challenge to Exemption 1 deference fares no better. Our

sister circuits have long understood Exemption 1 to require them to “accord

substantial weight to an agency’s affidavit concerning the details of the classified

status of [a] disputed record.” Maynard, 986 F.2d at 555 n.7; accord Jones v. Fed.

Bureau of Investigation, 41 F.3d 238, 244 (6th Cir. 1994); Krikorian v. Dep’t of

State, 984 F.2d 461, 464 (D.C. Cir. 1993); McDonnell v. United States, 4 F.3d

1227, 1244 (3d Cir. 1993); Wiener v. Fed. Bureau of Investigation, 943 F.2d 972,

980 (9th Cir. 1991); Stein v. Dep’t of Justice, 662 F.2d 1245, 1255 (7th Cir. 1981).

Congress ratified this understanding in 1996 when it amended the Act to include

the following language: “In addition to any other matters to which a court accords

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substantial weight, a court shall accord substantial weight to an affidavit of an

agency concerning the agency’s determination as to technical feasibility under

paragraph (2)(C) and subsection (b) and reproducibility under paragraph (3)(B).”

Electronic Freedom of Information Act Amendments, Pub. L. No. 104-231, § 6,

110 Stat. 3048, 3050 (1996) (codified as amended at 5 U.S.C. § 552(a)(4)(B)). This

amendment, adopted against the longstanding circuit practice of according

“substantial weight” to agency affidavits in the Exemption 1 context, not only

ratifies the deference courts have given to agencies under Exemption 1, but also

extends it to matters of “technical feasibility under paragraph (2)(C) and subsection

(b) and reproducibility under paragraph (3)(B)” of the Act. Id.; cf. Castillo v. U.S.

Attorney Gen., 756 F.3d 1268, 1273 (11th Cir. 2014) (“Where words are employed

in a statute which had at the time a well-known meaning . . . in the law of this

country, they are presumed to have been used in that sense unless context compels

to the contrary.” (quoting Lorillard v. Pons, 434 U.S. 575, 583 (1978) (alterations

adopted)). Whatever tension might otherwise exist between the Act’s requirement

of de novo review and deferring to an agency’s explanation for withholding

information, Congress has approved of deference within the specific context of

Exemption 1. Accordingly, the district court did not err by deferring to the

Bureau’s affidavit supporting the Exemption 1 claim.

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Broward Bulldog also suggests in its reply brief that the district court erred

when it applied the standard it chose because the “arguments [of the Bureau] do

not show either logic or plausibility,” but this argument is abandoned. Broward

Bulldog discussed only the legal standard in its opening brief, not the application

of that standard to the facts of this appeal. And “[o]ur longstanding case law rule is

that an appellant who does not raise an issue in his opening brief may not do so in

his reply brief.” United States v. Durham, 795 F.3d 1329, 1330 (11th Cir. 2015)

(en banc).

2. Exemption 7(C) (Personal Information)

Exemption 7(C) protects “records or information compiled for law

enforcement purposes, but only to the extent that . . . production . . . could

reasonably be expected to constitute an unwarranted invasion of personal privacy.”

5 U.S.C. § 552(b)(7)(C). “The term ‘unwarranted’ requires [courts] to balance the

[relevant] privacy interest against the public interest in disclosure.” Nat’l Archives

& Records Admin. v. Favish, 541 U.S. 157, 171 (2004). If the government

establishes that certain information implicates a “personal privacy” interest, 5

U.S.C. § 552(b)(7)(C), the requestor “must show that the public interest sought to

be advanced is a significant one” and that “the information is likely to advance that

interest.” Favish, 541 U.S. at 172. We first consider the privacy interests at issue

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before discussing whether Broward Bulldog has met its burden to establish a

significant public interest.

Exemption 7(C) encompasses a strong privacy interest in “the intimate

details of an individual’s life” and “information about an individual which he could

reasonably assert an option to withhold from the public at large because of its

possible adverse effects upon himself or his family.” Nadler v. U.S. Dep’t of

Justice, 955 F.2d 1479, 1489 (11th Cir. 1992) (quoting L & C Marine Transport,

Ltd. v. United States, 740 F.2d 919, 923 (11th Cir. 1984)), abrogated on other

grounds by U.S. Dep’t of Justice v. Landano, 508 U.S. 165 (1993). The “names

and other identifying information” of individuals associated with an

investigation—“even if they are not the subject[s] of the investigation”—implicate

a “strong” privacy interest because “of the potential for harassment, intrusion, and

stigmatization resulting from disclosure of an individual’s connection with a

criminal investigation.” Id. at 1489 (citation and internal quotation marks omitted).

In determining whether information is identifying, we consider the information

“not only from the viewpoint of the public, but also from the vantage of those who

would have been familiar” with a particular individual. Reporters Comm., 489 U.S.

at 768 (quoting Rose, 425 U.S. at 380–81). At least in cases involving a major

terrorist attack and the ensuing investigation, “any information contained in 7(C)

investigatory files [that] would reveal the identities of individuals who are subjects,

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witnesses, or informants in law enforcement investigations [is] categorically

exempt from disclosure” unless disclosure advances a substantial public interest.

Nation Magazine v. U.S. Customs Serv., 71 F.3d 885, 896 (D.C. Cir. 1995).

The Bureau redacted, among other things, the names, addresses, and phone

numbers of many agents, suspects, witnesses, and other individuals involved in the

investigation. The Bureau also redacted information about the occupations, places

of residence, or other personal information about these individuals that could be

indirectly identifying. For example, the Bureau withheld the employment details

about an individual who owned a gas station at which several hijackers were

employed, and it redacted the dates that an individual traveled to Oman and

Venice. Finally, the Bureau redacted other types of information that do not clearly

identify any individual named in the documents, such as information stating that a

particular interview occurred in Venice.

The district court ruled that the government failed to satisfy its burden for all

but two of the redactions it made in 17 documents, and Broward Bulldog defends

those rulings on appeal. The district court stated that the Bureau provided only

“conclusory statements that disclosing the information could cause harassment,”

and it suggested that the Bureau needed to provide a specific assessment for each

redaction “to explain why [a] particular individual’s name deserves protection and

how disclosure would constitute a clearly unwarranted invasion of the person’s

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privacy.” In addressing the privacy interests of agents, suspects, and others, the

district court maintained that “once . . . information is in the public domain, there is

no longer a privacy interest justifying nondisclosure.” And like Broward Bulldog,

the district court stressed that the government had not explained why some names

were redacted and others were not.

The district court also strongly suggested that a privacy interest should not

be protected if an individual was connected to the 9/11 attacks or even was of

investigative interest in connection with those attacks. Broward Bulldog adds that a

privacy interest should not be protected if the relevant information is exculpatory.

This reasoning is flawed.

At the outset, we disagree that an individual assessment is always necessary

to support every redaction made under Exemption 7(C). We held in Nadler that the

government need not “make a separate showing as to the applicability of

Exemption 7(C) to each particular person identified in its records.” 955 F.2d at

1488. We explained that “where the public and privacy interests that affect the

balancing under Exemption 7(C) are the same for all the information withheld, the

[g]overnment’s proof applies equally to all the contested records,” and “categorical

balancing is appropriate.” Id. at 1488–89.

The district court committed three errors that caused it to understate the

privacy interests involved in most of the redactions. First, the district court

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erroneously applied the public-domain doctrine to many of the disclosures. The

district court, relying another district court’s decision, ruled that “[o]ne can have

no privacy interest in information that is already in the public domain.” Citizens for

Responsibility & Ethics in Wash. v. U.S. Dep’t of Justice, 840 F. Supp. 2d 226, 233

(D.D.C. 2012). We have not adopted the public-domain doctrine regarding

Exemption 7(C), and we need not decide whether to do so now because, even

assuming the validity of the doctrine, the district court misapplied it here.

Under the public-domain doctrine, “records which otherwise may be exempt

from disclosure under the FOIA ‘lose their protective cloak’ if they have been

‘disclosed and preserved in a permanent public record.’” Sellers v. U.S. Dep’t of

Justice, 684 F. Supp. 2d 149, 162 (D.D.C. 2010) (quoting Cottone v. Reno, 193

F.3d 550, 554 (D.C. Cir. 1999)). “The logic of the public domain doctrine is that

‘where information requested is truly public, then enforcement of an exemption

cannot fulfill its purposes.’” Judicial Watch, Inc. v. U.S. Dep’t of Def., 963 F.

Supp. 2d 6, 12 (D.D.C. 2013) (quoting Cottone, 193 F.3d at 554). To invoke the

doctrine, a requester must establish “that the information sought is truly public and

that the requester [will] receive no more than what is publicly available.” Id.

(quoting Students Against Genocide v. Dep’t of State, 257 F.3d 828, 836 (D.C. Cir.

2001)); see also Wolf v. Cent. Intelligence Agency, 473 F.3d 370, 378 (D.C. Cir.

2007) (“Prior disclosure of similar information does not suffice; instead the

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specific information sought by the plaintiff must already be in the public domain

by official disclosure.”). A failure to establish that the same information sought has

been made public will cause an otherwise valid redaction to stand. See, e.g., Davis

v. U.S. Dep’t of Justice, 968 F.2d 1276, 1279–80 (D.C. Cir. 1992) (rejecting

application of public-domain doctrine where plaintiff submitted no evidence that

any specific portion of tape recordings had been made public despite submitting

“over 100 [newspaper] articles” suggesting that some unspecified portions of the

tapes had been played at a public trial).

For purposes of the public-domain doctrine, only the individual discussed in

the document or the agency in possession of the document may waive the

individual’s right to redaction by disclosing the individual’s identity. See Nation

Magazine, 71 F.3d at 896; Marino v. Drug Enf’t Admin., 685 F.3d 1076, 1082

(D.C. Cir. 2012) (explaining that the public-domain doctrine does not apply “when

someone other than the agency from which the information is being sought

discloses it” (citation and internal quotation marks omitted)). Information is not in

the “public domain” if it is merely the subject of public speculation. See Wolf, 473

F.3d at 378; Afshar v. Dep’t of State, 702 F.2d 1125, 1130 (D.C. Cir. 1983)

(rejecting suggestion that public speculation about Central Intelligence Agency

liaison with Iranian government constituted prior disclosure).

Broward Bulldog does not suggest that it proved that the same information

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in each redaction is also in the public record, or that the Bureau or the relevant

individuals disclosed the information in each redaction. Indeed, the district court

relied on information that “the [Bureau] or media sources” placed into the public

domain, and the government maintains that it already released all the names that it

had previously released into the public domain. Because the district court ruled that

the public-domain doctrine applies to information that is in the public domain

based only on media speculation and did not require Broward Bulldog to prove the

same information in each redaction was already in the public domain, the district

court erred.

Second, the district court erred when it ruled that Exemption 7(C) does not

protect a privacy interest if an individual was connected to or was of investigative

interest for the 9/11 attacks. Regardless of whether an individual is innocent or

guilty, “where the subject of the documents is a private citizen, the privacy interest

is at its apex.” Favish, 541 U.S. at 166 (alteration adopted) (citation and internal

quotation marks omitted). We do not “afford a lesser degree of privacy to those

who violate the laws of the United States” because distinguishing the innocent

from the guilty “violates the proposition that individuals have a substantial privacy

interest in their criminal histories.” O’Kane v. U.S. Customs Serv., 169 F.3d 1308,

1310 (11th Cir. 1999) (internal quotation marks omitted).

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We also disagree with Broward Bulldog that the innocent will necessarily

welcome exculpatory disclosures. There is “special reason” to protect “information

about persons interviewed as witnesses or initial suspects . . . whose link to the

official inquiry may be the result of mere happenstance.” Favish, 541 U.S. at 166.

“[E]xemption 7(C) takes particular note of the ‘strong interest’ of individuals,

whether they be suspects, witnesses, or investigators, ‘in not being associated

unwarrantedly with alleged criminal activity’” because “of the potential for

harassment, intrusion, and stigmatization.” Nadler, 955 F.2d at 1489 (quoting

Dunkelberger v. U.S. Dep’t of Justice, 906 F.2d 779, 781 (D.C. Cir. 1990)); see

also Am. Civil Liberties Union v. U.S. Dep’t of Justice, 750 F.3d 927, 934 (D.C.

Cir. 2014) (“[N]ow that these defendants have been acquitted or had the relevant

charges dismissed they have a significant and justified interest in avoiding

additional and unnecessary publicity.”). As Hardy explained in his declaration,

“9/11 was the most heinous terrorist attack to ever happen on American soil,” so

“[a]ny association or presumed association with these attacks casts the[]

[implicated] individuals in an extremely negative light.” Just as releasing a

criminal’s rap sheet could remind the public of events it may have forgotten,

Reporters Comm., 489 U.S. at 769, disclosing the redacted information here could,

as Hardy also explained, “cause . . . serious disruptions of the[] lives [of former

suspects and others] by reigniting old suspicions, sustaining any existing negative

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inferences into their character[s], and/or subjecting them to additional harassing

inquiries and/or negative reporting in the press.”

Third, the district court erred when it ruled that the government’s

“inconsistent” approach to the redaction of personal information undermined the

application of Exemption 7(C). The relevant question is whether the redactions the

government made were proper, not whether it could have made additional

redactions. Neither the district court nor Broward Bulldog cites any authority to

support the argument that the government must explain the inconsistent application

of an exemption. That position is unsupported by the text of the Act and, if

adopted, would have troubling consequences. In addressing an analogous

argument, we explained that to conclude that an agency waives its right to

withhold a document when it releases “related documents . . . would be contrary

both to the case law on waiver and to the policies underlying [the Act] and its

exemptions,” because it would “tend to inhibit agencies from making any

disclosures other than those explicitly required by law.” Fla. House of

Representatives v. U.S. Dep’t of Commerce, 961 F.2d 941, 947 (11th Cir. 1992)

(quoting Mobil Oil Corp. v. Envt’l Prot. Agency, 879 F.2d 698, 700, 701 (9th Cir.

1989)). And in any event, the Bureau has provided a reasonable explanation for its

approach to redacting some names but not others. See Suppl. Authority 08/01/18,

at 1–2 (noting that certain names were publicly disclosed by the Review

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Commission itself and that others were disclosed consistent with the Bureau’s

policy of releasing the names of senior officials). In short, the district court

erroneously understated the significant privacy interests that the personally

identifying information at issue implicates.

Because the Bureau has established that a significant privacy interest exists

in withholding the information, the requestor must identify a “significant” public

interest and “show the information is likely to advance that interest.” Favish, 541

U.S. at 172. The public’s interest in “having the information for its own sake” falls

outside the Act’s scope. Id. Instead, “the only relevant public interest in the . . .

balancing analysis [is] the extent to which disclosure of the information sought

would she[d] light on an agency’s performance of its statutory duties or otherwise

let citizens know what their government is up to.” U.S. Dep’t of Def. v. Fed. Labor

Relations Auth., 510 U.S. 487, 497 (1994) (citation and internal quotation marks

omitted). A bare interest in learning who may have been involved in the 9/11

attacks “falls outside the ambit of the public interest that the [Act] was enacted to

serve.” Id. at 500 (citation and internal quotation marks omitted); see also Davis,

968 F.2d at 1282 (holding that although the public “undoubtedly [had]

considerable interest” in learning details about an informant’s “possible role in the

Kennedy assassination,” this interest fell outside the ambit of the Act because the

information would “reveal little or nothing about an agency’s own conduct”

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(alteration adopted) (citation and internal quotation marks omitted)). “The private

needs” of a requestor or others “for documents in connection with litigation . . .

play no part in whether disclosure is warranted.” L&C Marine, 740 F.2d at 923. To

rebut the privacy interests implicated here, Broward Bulldog must establish how

disclosure would shed light on the Bureau’s performance of its statutory duties.

Broward Bulldog argues that disclosing personal identifying information

would serve the public interest because the Bureau “invited public interest in the

details of its Sarasota investigation when it very publicly undertook to refute the

accuracy of the Bulldog’s reports.” But it cites no authority to support this

assertion. We agree with the government that Broward Bulldog “cannot

demonstrate a public interest in uncovering government malfeasance by pointing to

the government’s denials of [its] accusations.” And we reiterate that there is a

difference between public curiosity and the type of public interest that can

outweigh a personal privacy interest under Exemption 7(C).

The district court likewise did not identify a substantial public interest. It

ruled that “there is significant public interest in knowing who investigated the

September 11 attacks and briefed the Meese Commission,” in “learning about the .

. . investigation of the [Saudi family],” and in obtaining “information about who

may have been involved in the September 11 attacks,” particularly in the light of a

pending lawsuit in New York against Saudi Arabia. But other than citing an

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inapposite decision from another circuit, see Citizens for Responsibility & Ethics in

Washington v. U.S. Dep’t of Justice, 746 F.3d 1082, 1093 (D.C. Cir. 2014), the

district court never explained how these interests are cognizable under the Act.

To be sure, the public has some interest in the information that is relevant to

our analysis under Exemption 7(C). The names of those involved in an

investigation into a major terrorist attack could reveal how the government took

action with respect to certain leads. Disclosure might also permit Broward Bulldog

and other media outlets to contact individuals involved in the investigation. But

these public interests cannot outweigh the privacy interests that private citizens

hold in not being associated with a major terrorism investigation, which we

reiterate are at their “apex” here. Favish, 541 U.S. at 166 (citation and internal

quotation marks omitted).

Because Broward Bulldog has failed to establish a significant public interest

that can outweigh the strong privacy interests in the clearly identifying information

at issue—such as names, addresses, and phone numbers, we reverse the order of

the district court for these classes of information. But as discussed, the Bureau

seeks to redact other types of information that do not clearly identify any

individual—for example, information stating that a particular interview took place

in Venice or that an individual lived in Sweden—that do not clearly identify any of

the persons named in the documents. For all potentially identifying information

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that is not a name, address, or phone number, we remand to the district court to

allow it to determine in the first instance whether the information is identifying.

3. Exemption 7(D) (Confidential Sources)

Exemption 7(D) protects “records or information compiled for law

enforcement purposes, but only to the extent that . . . production . . . could

reasonably be expected to disclose the identity of a confidential source” and, “in

the case of a record or information compiled by criminal law enforcement

authority in the course of a criminal investigation or by an agency conducting a

lawful national security intelligence investigation, information furnished by a

confidential source.” 5 U.S.C. § 552(b)(7)(D). To establish that the exemption

applies, the government must prove that “the source provided information under an

express assurance of confidentiality or in circumstances from which such an

assurance could be reasonably inferred.” Landano, 508 U.S. at 172 (citation and

internal quotation marks omitted). For example, the “nature of [an] informant’s

ongoing relationship with the Bureau,” “the character of the crime at issue,” and

“the source’s relation to the crime” may support a reasonable inference of an

assurance of confidentiality. Id. at 179. When the government establishes that a

source provided information under an assurance of confidentiality, Exemption

7(D) creates a “per se limitation on disclosure” that “does not disappear if the

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identity of the confidential source later becomes known through other means.”

L&C Marine, 740 F.2d at 925.

The district court ruled that Exemption 7(D) protects information about a

jailhouse informant named in document 2, but not the same information about the

informant that appears in document 27, and that it protects the name of the former

security officer of the gated community where the Saudi family lived. When

addressing the redactions of the jailhouse informant’s information in document 2,

the district court ruled that “the source spoke with an implied assurance of

confidentiality” because “the information [obtained from the informant] concerned

violent criminal activities,” including terrorism and unsolved homicides, “that

could place the source in harm’s way should the individual’s identity become

known.” But it provided a different analysis of the notes from the informant’s

interview in document 27. It ordered the government to disclose the redacted

information because Exemption 7(D) was “invoked simultaneously with

Exemptions 6 and 7(C)” and the district court was “unable to determine what

specific information the [g]overnment s[ought] to protect under Exemption 7(D).”

As for the security guard, the district court explained that “[t]he redacted language

does not state the [Bureau] interviewed this individual, and Hardy does not explain

how the individual was a[] . . . source.” But it ruled that because “Hardy states any

redaction under [Exemption 7(D)] protects the names of parties who provided the

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[Bureau] confidential information[,] . . . this redaction protects identifying

information about a confidential source” and the exemption applies.

Both Broward Bulldog and the government challenge these rulings. Broward

Bulldog argues that the exemption does not apply at all because the informant’s

and the security guard’s identities, as well as the information they provided, are

already public and the government has not established that either source received

an assurance of confidentiality. According to Broward Bulldog, the district court

correctly ordered the disclosure of the informant’s information in document 27, but

it incorrectly protected information about both sources in document 2. The

government takes the opposite position: It contends that it is irrelevant that the

information may be public, and it maintains that both sources received assurances

of confidentiality. The government argues that the district court erred when it

ordered the disclosure of the identifying information in document 27, but correctly

applied the exemption to information about both sources in document 2.

We agree in part with the government and Broward Bulldog. Exemption

7(D) protects the information about the informant in documents 2 and 27, but it

does not apply to information about the security guard.

As an initial matter, the public-domain doctrine does not apply to Exemption

7(D). We have held that because “[c]onfidential, as used in [E]xemption 7(D), . . .

is meant to be construed as ‘given in confidence,’” and not as “secret,” Exemption

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7(D) protects sources even if a “the plaintiff[] [knows] who the [sources] were”

based on public sources. L&C Marine, 740 F.2d at 925 n.8 (quoting Radowich v.

U.S. Att’y, 658 F.2d 957, 959 (4th Cir. 1981)); accord Irons v. Fed. Bureau of

Investigation, 880 F.2d 1446, 1448 (1st Cir. 1989) (agreeing with L & C Marine

that “law enforcement agencies need not disclose information about source identity

even though the source’s identity is already publicly known”). We have stressed

that after the government proves that a source received an assurance of

confidentiality, Exemption 7(D) creates a “per se limitation on disclosure.” L&C

Marine, 740 F.2d at 925. The district court erred by relying on another district

court’s ruling that a party requesting information can overcome Exemption 7(D) by

showing “that the ‘exact information’ contained in the record is already in the

public domain.” Bullock v. Fed. Bureau of Investigation, 587 F. Supp. 2d 250, 253

(D.D.C. 2008).

Broward Bulldog argues that the Bureau failed to establish that the

informant provided information under an assurance of confidentiality, but we

disagree. As the district court understood when it applied the exemption to

document 2, the informant spoke under an implied assurance of confidentiality

because he provided information about terrorism and unsolved homicides. As

Hardy explained in his declaration, disclosure of “specific, singular, detailed

information” related to the “investigation of terrorism activities” by the Bureau

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“could subject [the informant], as well as [his] famil[y], to embarrassment,

humiliation, and/or physical or mental harm.” And as he stated, “in the . . .

experience [of the Bureau], sources providing information to the [Bureau] about

extremist activities do so at great peril to themselves and have faced retaliation and

threats (including death threats) when their assistance to the [Bureau] has been

publicly disclosed.” See also Ctr. for Nat. Sec. Studies v. U.S. Dep’t of Justice, 331

F.3d 918, 929 (D.C. Cir. 2003) (“A terrorist organization may even seek to hunt

down detainees (or their families) who are not members of the organization, but

who the terrorists know may have valuable information about the organization.”).

The Supreme Court and our sister circuits have held that similar

circumstances establish an implied assurance of confidentiality. The Supreme

Court explained in Landano that “[m]ost people would think that witnesses to a

gang-related murder likely would be unwilling to speak to the Bureau except on

the condition of confidentiality.” 508 U.S. at 179. And the District of Columbia

Circuit has held that “conspiracy to distribute crack and powder cocaine” and “the

crimes of rebellion or insurrection, seditious conspiracy, and advocating overthrow

of the government [are] serious offenses that, when undertaken by a criminal

enterprise with a record of violence, warrant the inference that an informant

expects confidentiality.” Mays v. Drug Enf’t Admin., 234 F.3d 1324, 1329 (D.C.

Cir. 2000) (citation and internal quotation marks omitted); see also Hodge v. Fed.

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Bureau of Investigation, 703 F.3d 575, 581–82 (D.C. Cir. 2013) (“Given the

vicious nature of the crimes and the explanation offered in the . . . affidavits, we

conclude that the witnesses who provided the relevant information about Hodge’s

involvement in the murders would have expected that their identities remain

confidential.”).

Broward Bulldog suggests that the Bureau had to “explain the sources’

relation to the crime, whether the source received payment, and whether the source

ha[d] an ongoing relationship with the law enforcement agency,” but we disagree.

Broward Bulldog cites a decision that explained that, to determine whether there

was an implied assurance of confidentiality, courts “examine[]” “several

considerations . . . , including the nature of the crime and the informant’s relation

to the crime.” Elec. Privacy Info. Ctr. v. U.S. Drug Enf’t Agency, 192 F. Supp. 3d

92, 111 (D.D.C. 2016). That court ruled that the Drug Enforcement Agency failed

to provide a “detailed explanation of the [relevant] factors.” Id. But it did not

suggest that a source is confidential only when every potentially relevant factor

favors confidentiality. Such a rule would contravene Landano, in which the

Supreme Court explained that a variety of “narrowly defined circumstances . . .

will support [an] inference” of confidentiality. 508 U.S. at 179 (“There may well

be other generic circumstances in which an implied assurance of confidentiality

fairly can be inferred.”); see also Mays, 234 F.3d at 1330 (discussing Landano).

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Although the district court did not err when it applied Exemption 7(D) to the

informant’s information in document 2, it erred when it ordered the disclosure of

the information in document 27. As evidenced by its analysis of document 2, the

district court agreed with the government that the informant provided information

to the Bureau under an implied assurance of confidentiality. It refused to grant

summary judgment to the government for the redactions in document 27 only

because it was “unable to determine what specific information the [g]overnment

s[ought] to protect under Exemption 7(D),” as opposed to Exemptions 6 and 7(C).

But the government submitted a detailed chart linking blocks of redacted text to

specific exemptions. And of course, the government may invoke multiple

exemptions to protect the same information. It should not be surprising that

information about an informant implicates Exemption 7(D), which protects

information from confidential informants, and Exemptions 6 and 7(C), which

protect personal information generally—whether it relates to a confidential

informant or any other individual.

As to the security guard, we agree with Broward Bulldog that his name

should not have been withheld under Exemption 7(D) because his actions—

including his speaking on the record to a journalist before he spoke to the

Bureau—would not support an inference that he spoke to the Bureau under an

implied assurance of confidentiality. Even so, because the Bureau asserted that the

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identifying information of persons like the security guard who were involved in the

investigation is also covered by Exemption 7(C), and his name and other

information is clearly identifying, we affirm the redaction under Exemption 7(C).

4. Exemption 7(E) (Law Enforcement Techniques and Procedures)

Exemption 7(E) protects “records or information compiled for law

enforcement purposes, but only to the extent that . . . production . . . 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 Exemption 7(E), “[t]he phrase ‘techniques and procedures’ . . . refers

to how law enforcement officials go about investigating a crime.” Allard K.

Lowenstein Int’l Human Rights Project v. Dep’t of Homeland Sec., 626 F.3d 678,

682 (2d Cir. 2010). The purpose of this exemption is to shield sensitive law

enforcement techniques from disclosure to prevent criminals from “circumventing

future [law enforcement] investigations.” Blackwell v. Fed. Bureau of

Investigation, 680 F. Supp. 2d 79, 92 (D.D.C. 2010), aff’d, 646 F.3d 37 (D.C. Cir.

2011).

Our sister circuits have held, and we agree, that law enforcement techniques

or procedures that are universally known to the public cannot be shielded from

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disclosure under the Act. See Rugiero v. U.S. Dep’t of Justice, 257 F.3d 534, 551

(6th Cir. 2001); Davin v. U.S. Dep’t of Justice, 60 F.3d 1043, 1064 (3d Cir. 1995);

Rosenfeld v. U.S. Dep’t of Justice, 57 F.3d 803, 815 (9th Cir. 1995). But even for

well-known techniques or procedures, Exemption 7(E) protects information that

would reveal facts about such techniques or their usefulness that are not generally

known to the public, as well as other information when disclosure could reduce the

effectiveness of such techniques. See, e.g., Vazquez v. U.S. Dep’t of Justice, 887 F.

Supp. 2d 114, 116–17 (D.D.C. 2012) (observing that while the public is generally

aware of the Bureau’s National Crime Information Center databases, details of

their use and whether individuals are mentioned in them is not known to the

public). For example, when disclosure would expose specific vulnerabilities in

law-enforcement investigative techniques and procedures, Exemption 7(E) applies.

See, e.g., Blackwell v. Fed. Bureau of Investigation, 646 F.3d 37, 42 (D.C. Cir.

2011) (holding that Exemption 7(E) applied when disclosure would “expos[e] [the

Bureau’s] computer forensic vulnerabilities to potential criminals”). Exemption

7(E) also covers disclosures that would reveal an agency’s investigatory “targeting

priorit[ies].” Am. Civil Liberties Union of Mich. v. Fed. Bureau of Investigation,

734 F.3d 460, 466 (6th Cir. 2013). As the Sixth Circuit has explained, “[o]ur

intelligence and law-enforcement agencies are awash in a sea of data, much of it

public, so a choice to focus on a particular slice of that data directly reveals a

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targeting priority, and indirectly reveals the methodologies and data used to make

that selection.” Id. (“There is no way to release certain types of public information

without showing the FBI selection process.”).

The parties dispute whether information redacted from documents 2 and 22

falls within Exemption 7(E). The Bureau redacted information from document 2, a

briefing report on the Bureau’s investigation of the Saudi family, on the ground

that it relates mainly to “sensitive investigative techniques and procedures” and the

“dates and types of investigations (preliminary or full investigations).” And the

Bureau redacted information in document 22, a slideshow of an overview of the

9/11 investigation, on the ground that it relates to the “collection and/or analysis of

information.” The district court upheld all of the redactions.

The parties agree that the dispute turns on whether the redacted information,

if released, would “disclose techniques and procedures for law enforcement

investigations or prosecutions.” 5 U.S.C. § 552(b)(7)(E). Broward Bulldog does

not dispute that the information was “compiled for law enforcement purposes,” and

the government does not argue that the redacted information, if released, would

“disclose guidelines for law enforcement investigations or prosecutions.” Id.

Broward Bulldog argues that the Bureau cannot redact information under the

Act if the information is already in the public domain, and it maintains that the

Bureau “has not proven that the information it withheld or redacted from

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[d]ocument 22 is not disclosed in . . . some other public document.” It also argues

that revealing the information in both documents 2 and 22 would not reveal the

“techniques and procedures for law enforcement investigations or prosecutions,”

id., because the documents reveal only “[f]acts and information the [Bureau]

gathered about the hijackers and their activities.” And it argues that the final

qualifying phrase, “if such disclosure could reasonably be expected to risk

circumvention of the law,” modifies both the “guidelines” clause and the

“techniques and procedures” clause in the statute. So the government must prove—

and, Broward Bulldog argues, has not proven—that revealing the redacted

information “could reasonably be expected to risk circumvention of the law.” Id.

In document 2, the Bureau withheld the phrase “telephone, email or financial

contact” from a passage discussing the lack of evidence of contact between the

hijackers and the Saudi family. The Bureau asserted that disclosing this passage

would “reveal techniques used by the [Bureau] in terrorism investigations,

specifically the agency’s reliance upon, and its ability to obtain, evidence from

these sources.” But the fact that the Bureau might look to phone, email, or financial

records in an investigation is so obvious and widely known that the withheld

information fails to “disclose” any law-enforcement technique.

As to document 22, we agree with the government that most of its redacted

information reveals the usefulness of certain law-enforcement techniques and

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procedures or reveals vulnerabilities that are not generally known to the public. For

example, slide 19 details the specific methods the hijackers used to manage their

finances to avoid detection by law enforcement. Slide 20 similarly explains how

and when the hijackers obtained passports, visas, and identification cards that they

used to enter and travel throughout the country. Other slides detail how the attacks

were funded, the travel arrangements the hijackers used to enter the country, and

the various tactics the hijackers used to prepare for the attacks. These redacted

passages “reveal the data considered relevant by the [Bureau], the specific factors

considered in the investigation, and the commonalities and patterns detected (and

not detected) by the [Bureau] when analyzing the data.” Some of the materials also

“disclose the [Bureau’s] ‘playbook’ for apprehending criminals” and “allow[]

criminals to place themselves a step ahead of law enforcement.” Because almost all

of these passages expose aspects of the Bureau’s investigative and analytical

methodologies, they disclose “how law enforcement officials go about

investigating a crime” and are protected under Exemption 7(E). Allard, 626 F.3d at

682.

Although the bulk of the redacted slides in document 22 are protected under

Exemption 7(E), the government has failed to meet its burden with respect to three

slides. First, in slide 13 the government withheld a grainy photograph taken by a

security camera in an unknown location, and it is unclear who or what the photo

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depicts. The Bureau states that disclosing this image would permit future subjects

to “know where to find the security camera so as to avoid the area in which the

camera points, thereby circumventing detection or the ability for the [Bureau] and

law enforcement to try to obtain an image of the subject.” Although we agree that

disclosing the location of a specific, hidden camera still in operation would

disclose a “technique or procedure of law enforcement,” the Bureau has not

provided enough facts to determine that this photo is from a hidden camera as

opposed to one that is visible or that the photo is clear enough to reveal the

camera’s location to any subject. So we reverse the summary judgment protecting

the photo from disclosure and remand to the district court to allow the Bureau to

supplement the record with additional details about the camera.

The government also withheld slides 56 and 57 from document 22. These

slides generally describe the facts about the investigation of Walid bin Attash,

including that Osama bin Laden instructed Attash to assist with a hand-to-hand

combat course intended to help select candidates for the 9/11 operation; that Attash

learned more information about the 9/11 operation in a meeting with Khalid

Sheikh Mohammed in Karachi; that he met with two other conspirators in Kuala

Lumpur and Bangkok to case potential targets; and that Attash’s “casing report”

from his travels to Kuala Lumpur and Bangkok was recovered in Afghanistan. The

Bureau argues that disclosure of these slides would risk revealing the “collection

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techniques used to obtain such information” and also reveal “sensitivities that

future subjects could exploit in the future while planning and performing an

attack.” But the government fails to explain how disclosing this information would

risk revealing the specific collection methods by which it was obtained or

otherwise reveal a law-enforcement vulnerability, and it is not self-evident to us

how disclosure would create such risks. Because these slides do not disclose a law-

enforcement technique or procedure, they are not protected under Exemption 7(E),

and we reverse the ruling protecting them from disclosure.

In addition to disputing whether the redacted passages disclose law-

enforcement techniques and procedures, Broward Bulldog argues that the Bureau

must prove that each of its redactions and withholdings, if disclosed, “could

reasonably be expected to risk circumvention of the law,” 5 U.S.C. § 552(b)(7)(E),

but we disagree. As an initial matter, it is not clear that this provision applies here.

That statutory phrase follows the second of the two “would disclose” clauses:

records are exempt if they “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. The District of Columbia and Third

Circuits have ruled that an agency must show a risk of circumvention of the law if

the documents refer either to “guidelines for law enforcement investigations or

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prosecutions” or to “techniques and procedures for law enforcement investigations

or prosecutions.” See Pub. Employees for Envt’l Responsibility v. U.S. Section,

Int’l Boundary & Water Comm’n, U.S.-Mexico, 740 F.3d 195, 204 n.4 (D.C. Cir.

2014); Davin, 60 F.3d at 1064. By contrast, the Second and Ninth Circuits have

held that the contravention clause modifies only the “guidelines” clause. See

Hamdan v. U.S. Dep’t of Justice, 797 F.3d 759, 778 (9th Cir. 2015); Allard, 626

F.3d at 681. In those circuits, the government need not show that a disclosure will

risk contravention of the law to protect information that would disclose law-

enforcement techniques and procedures.

We need not take a side here. Even if this provision applies, the Bureau has

met that burden. Disclosing unknown law enforcement techniques and procedures

frequently “could reasonably be expected to risk circumvention of the law,” 5

U.S.C. § 552(b)(7)(E), and that is the case here. Broward Bulldog reiterates that

“[d]etailed information concerning the planning and execution of the 9/11 attacks

is widely available already.” But it misses the point that the redacted information

in document 22 will also shed light on how Bureau agents uncovered that “detailed

information.” And as Hardy explained in his declaration, revealing “a playbook to

future subjects” on, for example, “how much money one can move around, what

form is more or less detectable, through what means, and where to avoid so as not

to attract attention” may make it easier for others to circumvent the law. And

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disclosing “how the hijackers were able to obtain identification, enter the country,

and what types of identification they were successful at obtaining” as well as “the

sources the [Bureau] obtains this information from, [and] the specific types of data

the [Bureau] finds most useful” would threaten the Bureau’s “ability to apprehend

others using the same methods.”

5. Exemption 5 (Deliberative Process)

Exemption 5 protects “inter-agency or intra-agency memorandums or letters

that would not be available by law to a party other than an agency in litigation with

the agency.” 5 U.S.C. § 552(b)(5). The exemption “includes a ‘deliberative process

privilege’” that is designed both to minimize public confusion about agency

rationales and actions and “to allow agencies to freely explore possibilities, engage

in internal debates, or play devil’s advocate without fear of public scrutiny.” Moye,

O’Brien, O’Rourke, Hogan, & Pickert v. Nat’l R.R. Passenger Corp., 376 F.3d

1270, 1277 (11th Cir. 2004) (quoting Nadler, 955 F.2d at 1490 and Dep’t of

Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8–9 (2001)).

Broward Bulldog argues that the district court erred when it ruled that

Exemption 5 applied to redactions in documents 2, 5, and 22. As for documents 2

and 5, we have already concluded that Broward Bulldog’s challenge to the alleged

“boilerplate” justifications for the application of Exemption 5 to these documents

has no merit. Broward Bulldog’s remaining challenge about document 2 is waived.

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In its reply brief, Broward Bulldog argues that Exemption 5 does not apply to

redactions in document 2 because that document was created for a

“Congressionally-created [sic] Commission that was not, itself, an agency.” We do

not consider this issue because it was not raised in Broward Bulldog’s opening

brief. See Durham, 795 F.3d at 1330.

Document 22 is a different matter. We need not reach the question whether

Exemption 5 protects information in document 22 that we have already held is

covered under Exemption 7(C) and 7(E). But neither exemption applies to slides

56 and 57 of the document, so we must consider whether Exemption 5 applies to

this information.

As its name suggests, the deliberative process privilege protects only

“deliberative” materials—that is, materials that are “a direct part of the deliberative

process in that [they make] recommendations or express[] opinions on legal or

policy matters.” Miccosukee Tribe, 516 F.3d at 1263 (quoting Vaughn, 523 F.2d at

1144). Material must also be “predecisional” to fall under the privilege. To be

predecisional, information must be “prepared in order to assist an agency decision-

maker in arriving at his decision.” Nat’l R.R. Passenger Corp., 376 F.3d at 1277.

The information contained in slides 56 and 57 fails to satisfy either

requirement. As discussed, these slides contain general information about Walid

bin Attash’s activities around the time of the 9/11 attacks. The government has not

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established that the information contained in the slides “makes recommendations

or expresses opinions on legal or policy matters.” Miccosukee Tribe, 516 F.3d at

1263 (quoting Vaughn, 523 F.2d at 1144). The slides contain only a list of factual

statements, and “factual materials do not become privileged merely because they

represent a summary of a larger body of information.” Trentadue v. Integrity

Comm., 501 F.3d 1215, 1232 (10th Cir. 2007); see also Nat’l R.R. Passenger

Corp., 376 F.3d at 1278 (“[T]he Supreme Court has held that factual information

generally must be disclosed.”). Similarly, nothing in the record suggests that that

the slides were “prepared in order to assist an agency decision-maker in arriving at

his decision.” Id. at 1277. Although the materials might “predate[] a decision

chronologically,” we do not see how they “contribute[d] to [any] decision.” Id. at

1278. Put differently, the information is “merely peripheral to actual policy

formation.” Id. at 1277–78. To be predecisional, “the record must bear on the

formulation or exercise of policy-oriented judgment.” Id. at 1278. Because these

slides are not deliberative or predecisional, they do not fall under Exemption 5.

E. The District Court Did Not Err when It Failed to Make Express Findings
of Segregability.

Broward Bulldog argues that we must reverse because the district court

made no express findings on segregability, but we disagree. In Miccosukee Tribe,

we acknowledged that the District of Columbia Circuit requires express findings

“as to whether any segregable portions of the withheld documents should have

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been disclosed.” 516 F.3d at 1265. But we explained that, “[i]n this Circuit,

exacting requirements have not been placed on the district court’s articulation of its

reasons for sustaining a claim of exemption.” Id. And we stated that the appeal

“d[id] not present us with the appropriate occasion to consider whether to require

additional levels of analysis and more detailed findings” because the district court

conducted an “in camera review” and its review “was correctly conducted.” Id.

The same reasoning applies here. The district court may not have used the

word “segregability,” but its lengthy analysis over the course of three orders

establishes that it sought to limit the redactions to the extent possible. And there is

no need to reverse and remand when both this panel and the district court have

conducted in camera reviews to ensure that only exempt information is redacted.

We will not require such a pointless formality. See Juarez v. Dep’t of Justice, 518

F.3d 54, 60 (D.C. Cir. 2008) (explaining that the appellate court “need not prolong

the case further by remanding it solely for th[e] purpose” of making a segregability

finding because it “ha[d] the same record before [it] as did the district court” and it

was “just as capable of evaluating the . . . affidavits regarding segregability as

[wa]s the court below”).

F. The District Court Did Not Err when It Refused to Consider Documents
at Issue in an Earlier-Filed Lawsuit.

Broward Bulldog argues that the district court erred when it declined to

order the production of records that the newspaper had already sought in Broward

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Bulldog I because the Act recognizes only nine exemptions and “[d]uplicative

requests and productions are not among them.” But “[t]he first-filed rule provides

that when parties have instituted competing or parallel litigation in separate courts,

the court initially seized of the controversy should hear the case.” Collegiate

Licensing Co. v. Am. Cas. Co. of Reading, Pa., 713 F.3d 71, 78 (11th Cir. 2013).

Indeed, “where two actions involving overlapping issues and parties are pending in

two federal courts, there is a strong presumption across the federal circuits that

favors the forum of the first-filed suit under the first-filed rule.” Id. (alteration

adopted) (citation and internal quotation marks omitted). That rule finds support in

“considerations of comity and orderly administration of justice”: “two courts of

equal authority should not hear the same case simultaneously” and potentially

“generate dueling appeals.” UtahAmerican Energy, Inc. v. Dep’t of Labor, 685

F.3d 1118, 1124 (D.C. Cir. 2012) (alteration adopted). Nor should the judiciary

“expend judicial resources” to “allow[] the same . . . plaintiff multiple bites at the

apple.” Id. Broward Bulldog was already engaged in ongoing litigation before

another district judge, so the district court here did not err when it refused to

entertain “the exact same legal issues” raised by the “exact same parties” about the

“exact same [documents].” Collegiate Licensing, 713 F.3d at 78.

Although Broward Bulldog concedes that “principles of comity and judicial

efficiency” may apply in other circumstances, it argues that the government “cites

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no authority for the proposition that these principles trump the . . . compliance

requirements” of the Act. But it provides no authority to suggest that these

generally applicable principles do not apply to litigation under the Act. It makes no

sense to carve out a special exception for the Act. The same comity and efficiency

considerations that ordinarily support the first-filed rule apply with equal, if not

greater, force in this setting. As the district court explained, deciding which

exemptions apply to the same documents in two separate proceedings risks

“inconsistent findings . . . with respect to the [same] records.” And the District of

Columbia Circuit has explained that the problem of duplicate litigation is

“particularly acute in . . . cases [under the Act]” because “multiple components of

the same agency may withhold the same documents on the same grounds, thus

potentially generating multiple lawsuits and appeals raising the same issues.”

UtahAmerican, 685 F.3d at 1125.

In any event, the district court in Broward Bulldog I recently issued an

opinion on the records that Broward sought in its 2011 request. See Broward

Bulldog I, No. 12-cv-61735-WJZ (S.D. Fla. Aug. 22, 2019). After the court enters

a separate final judgment, Broward Bulldog will be free to appeal its decision.

Broward Bulldog suggests, unpersuasively, that we should require duplicate

litigation notwithstanding the resolution of Broward Bulldog I because that case

does not “disclose which records the Meese Commission reviewed.” In other

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words, it argues that it is entitled to duplicate litigation because it worded its two

requests differently. Its first request sought all documents related to the Saudi

family, and the second request sought documents reviewed by the Commission. So

according to Broward Bulldog, only disclosures made in response to the second

request will allow Broward Bulldog to “evaluate whether the [Bureau] provided

the Meese Commission with the documents necessary to perform its task.” But the

Act provides a right to documents, not a right to information about how particular

documents were used. See Kissinger v. Reporters Comm. for Freedom of the Press,

445 U.S. 136, 152 (“The Act . . . only obligates [an agency] to provide access to

[information] which it in fact has created and retained.”). We see no reason to

allow Broward Bulldog to pursue duplicative litigation because it used different

wording to request the same documents in two separate actions.

IV. CONCLUSION

We AFFIRM IN PART and REVERSE IN PART the summary judgment,

and we REMAND for further proceedings consistent with this opinion.

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MARTIN, Circuit Judge, concurring in part and dissenting in part:

I agree with most all of the Majority Opinion.1 Yet this case requires our

panel to rule on the propriety of a whole host of redactions made by the

government to the many documents requested by the Broward Bulldog (“Bulldog”)

pursuant to FOIA, 5 U.S.C. § 552. The redactions made by the government, in

turn, rely on various exemptions to FOIA’s production requirements. I do not line

up with the Majority Opinion on every one of its rulings regarding the

government’s redactions. In particular, I dissent to the approval given by the

Majority Opinion to the FBI’s claimed redactions under Exemptions 7(C) and

7(E). I do not believe those redactions comply with the requirements of FOIA.

I will not restate the facts and procedural history of this case, which are ably

recited in the Majority Opinion. Instead, I start with an overview of the law

underlying my points of disagreement. Under FOIA, a federal agency must

disclose official information upon request, unless the request falls within one of

nine enumerated exemptions. See 5 U.S.C. § 552(a). “These exemptions are

1
Specifically, I concur in Parts III.A, B, C, E, and F of the Majority Opinion, which hold
that the Federal Bureau of Investigation (“FBI”) conducted an adequate search; the District Court
had an adequate factual basis to issue a decision in this case; the District Court properly denied
the Broward Bulldog’s request to depose the FBI agent who briefed the 9/11 Commission on the
investigation at issue in this case; and the District Court did not err by failing to make express
findings on segregability or by declining to order the production of records the Bulldog had
previously sought. Also, with regard to government’s redaction of documents it produced
pursuant to the Freedom of Information Act (“FOIA”) request from the Bulldog I agree with the
discussion in the Majority Opinion in Parts III.D.1, 3, and 5. I respectfully dissent from Parts
III.D.2 and 4.
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explicitly made exclusive, and must be narrowly construed.” Milner v. Dep’t of

Navy, 562 U.S. 562, 565, 131 S. Ct. 1259, 1262 (2011) (citations and quotation

marks omitted); see Ely v. FBI, 781 F.2d 1487, 1489–90 (11th Cir. 1986).

Exemption 7 permits a federal agency to withhold “records or information

compiled for law enforcement purposes,” subject to certain conditions. 5 U.S.C.

§ 552(b)(7).

I. EXEMPTION 7(C)

I first turn to Exemption 7(C), which authorizes an agency to withhold

records or information compiled for law enforcement purposes to the extent that

revealing the information “could reasonably be expected to constitute an

unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C). 2 The

inclusion of the term “unwarranted” calls on courts to balance “the public interest

in disclosure against the interest Congress intended the Exemption to protect.”

U.S. Dep’t of Justice v. Reporters Comm., 489 U.S. 749, 776, 109 S. Ct. 1468,

1483 (1989).

2
Exemption 7(C) overlaps with Exemption 6, which permits withholding of “personnel
and medical files and similar files the disclosure of which would constitute a clearly unwarranted
invasion of personal privacy,” 5 U.S.C. § 552(b)(6). Exemption 7(C) is “more protective of
privacy” than Exemption 6. U.S. Dep’t of Def. v. Fed. Labor Relations Auth., 510 U.S. 487, 496
n.6, 114 S. Ct. 1006, 1013 n.6 (1994); see Office of the Capital Collateral Counsel, N. Region of
Fla. ex rel. Mordenti v. Dep’t of Justice, 331 F.3d 799, 803 n.6 (11th Cir. 2003). So while the
redactions under Exemption 7(C) also fall under Exemption 6, the FBI’s argument focuses on
Exemption 7(C), and I do as well.
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In its production to the Bulldog, the FBI cited Exemption 7(C) as its basis

for withholding the personal information of certain people named in the FBI’s

reports. This included persons of interest in the investigation that was the subject

of the Bulldog’s request, as well as the identity of FBI agents and other

government employees involved in that investigation. On December 30, 2016, the

government moved for partial summary judgment as to these redactions. On

February 27, 2017, the District Court denied in relevant part the FBI’s motion for

summary judgment, holding that the FBI had not shown it was entitled to the

challenged Exemption 7(C) redactions. Following the District Court’s February

order, the FBI made additional disclosures but again moved for summary judgment

as to the remaining redacted information. On May 16, 2017, in a document-by-

document, page-by-page analysis, the District Court again largely denied the

government’s motion for withholding under Exemption 7(C). The lone grant of an

Exemption 7(C) redaction went to part of Document 22—a 60-page PowerPoint

presentation dated April 25, 2014, and entitled “Overview of 9/11 Investigation.”

For this document, the District Court sustained the redaction of the names of two

people not associated with the investigation whose names were incidentally

mentioned.

The FBI appeals from the District Court’s denial of withholding of personal

information under Exemption 7(C), arguing that withholding under this exemption

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is necessary to protect the privacy interest of people whose information appears in

the documents. I find the FBI’s arguments to be deficient in a number of respects

and would affirm the District Court’s orders as to the redactions under Exemption

7(C).

A. PROBLEM ONE: LACK OF SPECIFICITY
As a threshold matter, the FBI’s Exemption 7(C) arguments fall short

because the FBI fails to specify which documents or individual redactions it

believes were wrongly ordered to be revealed. Instead, I understand the FBI to

make a blanket argument that all the District Court’s unfavorable rulings on

Exemption 7(C) should be reversed. The FBI makes this broad and general

argument despite acknowledging—and premising its argument on—the fact that

courts reviewing redactions under Exemption 7(C) must “carefully examine the

nexus between the requested information and the asserted public interest.”

Nevertheless, on the face of its appeal, the FBI fails to make clear what

“information” should be analyzed. For example, the FBI mentions the

responsibility of courts to “balance” in the context of “dates of birth, driver’s

license numbers, addresses, phone numbers, and other such information.” Yet it

fails to identify any driver’s license numbers or phone numbers that might be

disclosed. Thus, the relevance of this argument is not clear. In the same way,

FBI’s argument does not make clear whether it seeks to challenge all documents

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analyzed by the District Court, or only those that are the subject of the Bulldog’s

appeal. By failing to point to the specific materials it says deserve withholding

under Exemption 7(C), the FBI deprives this Court of any ability to perform the

required analysis. See, e.g., United States v. Dunkel, 927 F.2d 955, 956 (7th Cir.

1991) (per curiam) (refusing to search through the record for possible claims

because “[j]udges are not like pigs, hunting for truffles”).

The Majority Opinion raises no problem with the FBI’s general approach in

asserting its Exemption 7(C) claims in this appeal. To the contrary, when it

condones the FBI’s lack of specificity, it fails to properly frame the issue.

According to the Majority Opinion, the FBI’s approach is acceptable because “the

government need not ‘make a separate showing as to the applicability of

Exemption 7(C) to each particular person identified in its records.’” Maj. Op. at 34

(quoting Nadler v. U.S. Dep’t of Justice, 955 F.2d 1479, 1488 (11th Cir. 1992),

abrogated on other grounds by U.S. Dep’t of Justice v. Landano, 508 U.S. 165, 113

S. Ct. 2014 (1993)). However, before we ever reach the question of whether the

FBI has done a proper categorical balancing of the private and public interests at

stake in these redactions, we must ask whether the FBI has given proper notice of

what rulings it is challenging. See United States v. Adkinson, 135 F.3d 1363, 1379

(11th Cir. 1998) (rejecting appellate brief for failure to point to specific errors in

the record); see also 11th Cir. R. 28-1(i) (requiring citation to the record). Because

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I believe it improper for the FBI to make a blanket challenge to all rulings on a

given Exemption, without specifying which rulings it seeks to challenge, I would

affirm the District Court’s ruling as to all Exemption 7(C) redactions.

B. PROBLEM TWO: LACK OF CATEGORICAL DEFINITION
Even if the FBI’s blanket approach to appealing from the District Court’s

orders were acceptable, I would not hold, as the Majority Opinion does, that the

FBI has identified allowable categories of individuals for which Exemption 7(C)

redactions are proper. As I understand its argument, the FBI wants this court to

endorse a categorical rule that “[p]eople involved in an investigation”—defined to

include “witnesses, suspects, persons of interest, or government agents”—always

have a protected privacy interest in their connection to the investigation. The lone

case the FBI cites for this proposition, National Archives & Records

Administration v. Favish, 541 U.S. 157, 124 S. Ct. 1570 (2004), says nothing of

the sort. In Favish, the Supreme Court held that the family member of a deceased

person has a privacy interest within the scope of Exemption 7(C). Id. at 165, 124

S. Ct. at 1576. The Favish Court further noted that people “whose link to the

official inquiry may be the rest of mere happenstance” often have a right to official

protection of their “intimate personal data,” particularly where “the subject of the

documents is a private citizen.” Id. at 166, 124 S. Ct. at 1577 (quotation marks

omitted). Favish indicates that, before categorical balancing is appropriate, some

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caution must be taken to ensure that a proper “category” of persons has been

established. The FBI exercised no such caution.

It is easy to see why the FBI’s approach here is deficient. Take, for

example, Document 2. In this document, the FBI redacted the name of a neighbor

of the al-Hijjis. This neighbor was quoted by name in a September 8, 2011

Bulldog article and submitted an affidavit in support of the Bulldog’s lawsuit. I do

not accept the idea that this neighbor—who has thrust himself into the public

discourse of the subject of this case on several occasions—should get the same

personal-privacy considerations as both an FBI agent and a person of interest in the

investigation. For that matter, I find it hard to understand why the privacy interests

of an FBI agent and a person of interest to the investigation should be presumed to

be so similar that we analyze them together. There may well be reasons to conduct

the analysis in this way, but the FBI has not enlightened us as to what those

reasons might be. It is not the job of this court to do government’s work for it, by

providing those reasons for ourselves.

The FBI’s failure to identify a cognizable group of persons for whom

categorical treatment makes sense gives us another basis for affirming the District

Court’s rulings as to Exemption 7(C).

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C. PROBLEM THREE: THE DISTRICT COURT PROPERLY BALANCED
THE PUBLIC AND PRIVATE INTERESTS

Even if we had received information sufficient for us to reach the merits of

the Exemption 7(C) redactions, I would reject the FBI’s argument that the District

Court failed to properly appreciate the privacy interest at stake and mistakenly

measured the magnitude of the public’s interest.3

a. Privacy Interest

As to the privacy interest at stake in these documents, the FBI correctly

points out that people have an interest in “not being associated unwarrantedly with

alleged criminal activity.” Nadler v. U.S. Dep’t of Justice, 955 F.2d 1479, 1489

(11th Cir. 1992) (quotation marks omitted), abrogated on other grounds by U.S.

Dep’t of Justice v. Landano, 508 U.S. 165, 113 S. Ct. 2014 (1993). But the

District Court appropriately considered this interest. In the first instance, the

District Court analyzed the privacy interest for every piece of information for

which the FBI sought to apply Exemption 7(C). In doing so, the District Court

explained in each instance exactly how the government failed to meet its burden of

redaction. Once the FBI produced another Vaughn index to explain its rationale

for the redactions, the District Court again gave additional analysis of each claim,

explaining why each of the government’s rationales was insufficient. I do not

3
I emphasize again that reaching the merits of this question is a non-starter because the
FBI has not specified the personal information for which it believes disclosure was improperly
ordered.
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agree with the Majority Opinion’s construction of the District Court’s February

order as holding that “Exemption 7(C) does not protect a privacy interest if an

individual was connected to or was of investigative interest for the 9/11 attacks.”

Maj. Op. at 37. Rather, I understand the District Court to say that the rationale for

privacy is lessened—though not eliminated—where a person’s connection to the

investigation at issue is already known. Even now, the FBI has continued to fail to

produce information to bolster its claims of a privacy interest. Thus, I see no basis

for overturning the District Court’s rejection of these claims.

The FBI also argues the mere fact that a person’s name has previously been

disclosed does not waive that person’s privacy interest, because the interest

belongs to the person, not the FBI. True, a privacy interest is personal, but courts

may consider the existing public record when measuring the magnitude of that

privacy interest. See Reporters Comm., 489 U.S. at 763–64, 109 S. Ct. at 1476–77

(contrasting the privacy interest in “hard-to-obtain information” with information

readily available to the public).

The Majority Opinion says the existence of the sought information in the

public domain is irrelevant because the Bulldog has not established that “the same

information in each redaction is also in the public record, or that the [FBI] or the

relevant individuals disclosed the information in each redaction.” Maj. Op. at 36

(emphasis omitted). Notably, the FBI does not make this argument. Indeed, the

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FBI could not rely on this argument that is the premise of the Majority Opinion

because the government has not actually identified the pieces of information for

which it believes disclosure is erroneous. Rather, the government’s argument is

that the District Court erred by ordering production of information relevant to

“some individuals whose identities have not been the subject of public

speculation,” and that even if an individual has been the subject of public

speculation regarding this investigation disclosure can still impose an unfair

stigma. Again, the FBI argues generally that the balance of interests “tilts even

more strongly against disclosure when it comes to dates of birth, driver’s license

numbers, addresses, phone numbers, and other such information,” but it does not

point to any driver’s license numbers, phone numbers, or home addresses that have

been ordered to be disclosed. Similarly, the FBI makes the general argument that

“[i]ndividuals acquitted of crimes have a clear privacy interest in controlling

information in their publicly available court records.” And again here, it fails to

point to any person in that circumstance who is at issue in this case. The FBI’s

arguments here would certainly be strengthened if it could point to an instance of

private information that should not be released. On the record before us, I view the

District Court’s order as having properly considered the relevant privacy interests.

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b. Public Interest

The FBI argues that the District Court erred in relying on the public’s

interest in “learning about . . . suspects and subjects of interest in the September 11

attacks” because FOIA is not designed to let the public learn about individual

criminal actions. The Majority Opinion reverses the District Court, ruling that this

public interest is not so compelling as to favor of disclosure. Maj. Op. at 41–42.

The operative question for us is whether disclosure would “appreciably further ‘the

citizens’ right to be informed about what their government is up to.’” U.S. Dep’t

of Def. v. Fed. Labor Relations Auth., 510 U.S. 487, 497, 114 S. Ct. 1006, 1013–

14 (1994) (quoting Reporters Comm., 489 U.S. at 773). I believe the public does

have an interest in knowing what, if anything, the government knew about the al-

Hijjis in the run-up to the 9/11 attacks, as well as how the FBI handled its

investigation of the al-Hijjis’ departure from the country.

The Majority Opinion is right when it says that it would have been

insufficient for the District Court to rest its assertion of a public interest wholly on

the supposed interest in information about “who may have been involved in the

9/11 attacks.” Maj. Op. at 41. But the District Court did not limit its analysis in

this way. The District Court also weighed the “significant public interest . . . in

learning about the FBI’s investigation of the Al-Hijjis”, specifically whom the FBI

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investigated and how that investigation was conducted. These interests strike me

as weighty enough.

The FBI does a disservice by comparing the public interest in this case first

to Nadler and then to Reporters Committee. Nadler addressed a claim by a former

judge seeking to learn the name of the informant who alerted authorities that the

judge was accepting bribes. Id. at 1482–83. The information sought by the

Bulldog in this case is thus hardly alike the “conduct of private citizens” at issue in

Nadler. Similarly, Reporters Committee addressed a purported public interest in a

person’s past arrests and convictions, no matter how small or long ago. See 489

U.S. at 774–75, 109 S. Ct. at 1482–83. Unlike past incidents that may line an

individual’s FBI rap sheet, the public is not likely to “forg[et]” about the 9/11

attacks any time soon. See Maj. Op. at 38. Suffice it to say that the 9/11 attacks

were a pivotal historic event and the government’s investigation of those attacks

continues to generate great public interest.

The FBI also argues that the large amount of public information disclosed

about the 9/11 attack means there is little marginal interest in the release of this

additional material. This argument does not persuade, because this case has

generated public interest in its own right. It involves a specific finding of fact by a

Congressional Commission and has been publicly called into question by a former

U.S. Senator who served on the 9/11 Commission. The FBI contributed to this

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public interest in the case when it publicly disputed the Bulldog’s initial 2011

article on the al-Hijjis. Therefore, even when evaluating the “public interest . . . in

light of all that is already known,” there remains sufficient public interest in the

disclosures ordered by the District Court. See Mordenti, 331 F.3d at 804.

c. Balancing

In addition to the arguments discussed above, the FBI generally asserts the

District Court erred in balancing the relevant interests under Exemption 7(C). This

argument is again undercut by the FBI’s persistent failure to point to the specific

redaction decisions with which it disagrees. Nevertheless, the Majority Opinion

says the balance cuts in favor of nondisclosure because the Bulldog has failed to

establish a significant public interest under FOIA. I do not agree with this ruling.

I would affirm the District Court because I believe there is public interest in the

materials sought by the Bulldog.

II. EXEMPTION 7(E)

My other area of disagreement is with the Majority’s analysis of certain

redactions under Exemption 7(E). This exempts from FOIA disclosure those

records or information compiled for law enforcement purposes, which if produced

“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

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of the law.” 5 U.S.C. § 552(b)(7)(E). My disagreement with the Majority

Opinion’s application of Exemption 7(E) extends to Document 22 only.

Document 22 is an April 2014 PowerPoint slideshow entitled “Overview of

9/11 Investigation.” I agree with the Majority that Slides 56 and 57, which

generally discuss certain facts about the investigation into Walid bin Attash, should

be disclosed, as they do not fall within Exemption 7(E) (or Exemption 5). I also

agree with the Majority that consideration of Slide 13, which contains a grainy

photograph taken by a security camera in an unknown location, should be

remanded to the District Court in order to permit the FBI to supplement the record

with additional details about the camera. However, I do not agree with the

remainder of the Majority Opinion’s rulings on Document 22.

Slides 19 and 20 contain certain findings of the FBI’s investigation. The

FBI has redacted particular bullet points discussing information relevant to the

9/11 hijackers’ finances and identification. The FBI and the Majority Opinion say

redaction is appropriate because these bullet points reveal how the hijackers could

“stay ‘under the radar’” and that disclosure would enable future suspects to employ

these “undetected methods.” This explanation sounds reasonable on the surface,

but is undercut by the production of the other portions of these slides, which

demonstrate how the hijackers “Adapted to U.S. Society” and the communication

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methods they used to avoid detection. The FBI’s position in this regard is not

consistent.

Next, the FBI redacted everything but the title of Slide 24, which concerns

when the 9/11 pilots and intended pilots arrived in the United States. Similar

content has been redacted from Slides 31 through 36, which discuss the activities

of the hijackers in the months leading up to 9/11. Because these slides are pure

factual recaps of generally known topics of interest without any discussion or

analysis of law enforcement techniques or intelligence gathering, they too should

be disclosed.

Four additional slides—Slides 29, 30, 37, and 47—discuss the hijackers’

finances. But like the slides containing the historic information outlined above,

these slides contain no analysis, no discussion of techniques, and no explanation of

how the conspirators avoided detection. Notably, the FBI recognizes that “it is

common knowledge” that it would investigate the conspirators’ financing. As a

purely factual recap of the crime, these slides should be disclosed.

Finally, the FBI has redacted everything but the title—“Ongoing

Investigation”—from Slides 55, 58, 59, and 60. The FBI argues these slides

should be redacted because they discuss “investigative leads and the sources of

data the FBI finds useful” and “investigative leads derived from forensic analysis.”

But it is not clear from this explanation what “techniques and procedures” or

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“guidelines” would be revealed by disclosure. Given that these slides indicate they

discuss ongoing investigations, there is some risk that release could lead to

circumvention of the law, so I would remand consideration of these slides to give

the FBI an opportunity to explain to the District Court the techniques and

procedures at issue.4

The Majority Opinion says the redacted material in these slides “reveal the

data considered relevant by the [FBI], the specific factors considered in the

investigation, and the commonalities and patterns detected (and not detected) by

the [FBI] when analyzing the data,” thus warranting protection under Exemption

7(E). Maj. Op. at 55. But the Majority does not explain how this is so, beyond its

conclusory statement that “almost all of these passages expose aspects of the

[FBI’s] investigative and analytical methodologies.” Id. I worry that this cursory

analysis of the connection between these slides and the FBI’s claimed techniques

and procedures could allow government agencies to redact all factual information

4
These slides are now indisputably old. What might have been an ongoing investigation
at the time the slides were produced may no longer be ongoing. Also, the FBI redacts these
slides under Exemption 5, which permits withholding of “inter-agency or intra-agency
memorandums or letters that would not be available by law to a party other than an agency in
litigation with the agency.” 5 U.S.C. § 552(b)(5). Material withheld under this exemption “must
be . . . a direct part of the deliberative process in that it makes recommendations or expresses
opinions on legal or policy matters.” Miccosukee Tribe of Indians of Fla. v. United States, 516
F.3d 1235, 1263 (11th Cir. 2008) (quotation marks omitted). While the slides outline some
general topics of ongoing investigations, they do not appear to be related to any legal or policy
matter. At the very least, that information is not “a direct part” of a policy decision-making
process. See id. (quotation marks omitted). I believe that redaction of these slides under
Exemption 5 is not appropriate and would not let it stand in the way of a remand to the District
Court. The Majority, meanwhile, does not reach the issue. See Maj. Op. at 60.
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gathered in the course of any investigation as potentially revelatory of confidential

strategies. That said, I understand there are circumstances in which such

information could overlap with law enforcement techniques and procedures. For

example, in Allard K. Lowenstein International Human Rights Project v.

Department of Homeland Security, 626 F.3d 678 (2d Cir. 2010), the Second

Circuit posited that Exemption 7(E) could be used to block release of information

pertaining to the subjects of an investigation, if such information could reveal the

scope of the investigation. See id. at 682. But the FBI has made no such argument

here. Again here, the FBI claims only generally that disclosure of financial

information could reveal “how much money one can move around, what form is

more or less detectable, through what means, and where to avoid so as not to

attract attention,” and that information about vulnerabilities in U.S. airports “would

provide a criminal with insight into how to successfully plan future criminal acts

without detection.” These arguments are too broad to persuade me regarding the

information at issue in these slides. I would not permit redaction of these slides.

* * * * *

I am well aware of the difficulty of balancing the public’s right to know

what its government is up to, and the government’s right to secrecy. I commend

the Majority Opinion for its treatment of these sensitive topics. Nevertheless, I do

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not believe the FBI has made a sufficient legal case for all the redactions the

Majority permits. I therefore respectfully dissent as set forth above.

79