United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 8, 2008 Decided March 4, 2008
No. 07-5064
SILVIA PATRICIA MIRANDA JUAREZ,
APPELLANT
v.
DEPARTMENT OF JUSTICE, DRUG ENFORCEMENT
ADMINISTRATION,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 04cv01468)
Peter Kryn Dykema argued the cause and filed the briefs for
appellant.
Brentin V. Evitt, Senior Counsel, U.S. Department of
Justice, argued the cause for appellee. With him on the brief
were Jeffrey A. Taylor, U.S. Attorney, and R. Craig Lawrence,
Assistant U.S. Attorney.
Before: SENTELLE, Chief Judge, and GRIFFITH and
KAVANAUGH, Circuit Judges.
Opinion for the Court filed by Chief Judge SENTELLE.
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SENTELLE, Chief Judge: Silvia Miranda Juarez appeals
from the district court’s entry of summary judgment upholding
the Drug Enforcement Administration’s denial of her Freedom
of Information Act (FOIA) request. She argues that the
agency’s affidavits and underlying explanations were
insufficient to justify withholding the records she requested
under FOIA’s Exemption 7(A), which protects records and
information compiled for law enforcement purposes.
Alternatively, she urges that the district court erred by failing to
conduct a segregability analysis for the withheld documents.
For the following reasons, we reject appellant’s arguments and
affirm the judgment of the district court.
I. Background
Appellant Silvia Miranda Juarez (“Miranda”) is a Mexican
citizen who lived in the United States with her husband and two
sons from 1994 to 2002 on a series of business-related, limited-
term visas. Miranda and her husband together own two
businesses in this country: America Transfers, Inc. and Mexico
Transfers, Inc. Both businesses provide money transfer services
primarily to workers remitting funds to relatives in Latin
America. Together, these companies operate 119 branch offices
in fifteen states.
Under the conditions of her visa, Miranda was required to
leave the United States and file for an extension at an American
consular office abroad. Miranda traveled to Monterrey, Mexico
for this purpose in July 2002, but her visa renewal application
was rejected by the United States Consulate there. A consular
official told Miranda that her application was denied because
she was under investigation for money laundering and that she
was therefore ineligible for reentry into the United States.
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Miranda initially asserted that this was a case of mistaken
identity and submitted a FOIA request to DEA for records of
any investigation relating to her. DEA conducted a search of its
investigative filing systems for responsive records and found
one fourteen-page investigative record confirming Miranda was
the subject of a DEA criminal law enforcement investigation.
Later, DEA found two additional pages of records, bringing the
total to sixteen pages. Citing FOIA Exemptions 2, 3, 7(A), 7(C),
7(D), and 7(F), 5 U.S.C. § 552(b)(2), (3), (7), DEA withheld the
documents in their entirety from Miranda. Miranda appealed
this denial administratively to the DOJ’s Office of Information
and Privacy, but that office affirmed DEA’s decision.
Miranda commenced the current action on August 27, 2004,
seeking judicial review of DEA’s decision to withhold the
information she requested. DEA moved for summary judgment
on December 1, 2004, arguing that because there was an
ongoing criminal investigation, it had properly withheld the
requested information from Miranda. During the following
seventeen months, Miranda and DEA delayed this action while
the parties engaged in discussions over Miranda’s willingness to
cooperate in the ongoing investigation. While DEA agents at
one point met with Miranda, they did not question her but only
offered to listen to any information she could provide them.
After DEA showed no further interest in Miranda’s participation
in their investigation, Miranda filed her memorandum in
opposition to DEA’s motion for summary judgment on May 19,
2006.
On December 13, 2006, the district court granted DEA’s
motion and entered summary judgment in its favor. As the
district court noted in its memorandum opinion accompanying
the summary judgment order, Miranda had asserted only one
alleged issue of material fact in opposition to DEA’s motion.
Specifically, she argued that DEA had wrongfully denied her
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FOIA request because there was no ongoing criminal
investigation to justify the use of Exemption 7(A). The district
court ruled that the affidavits tendered by DEA in support of its
motion for summary judgment confirmed the existence of an
active investigation of Miranda and of potential adverse
consequences that would flow from the release of further
information – including a more specific description of the
documents’ contents. As Miranda was unable to produce any
contravening evidence, the district court granted DEA summary
judgment.
Miranda raises three issues in this appeal. We consider
each in turn.
II. Propriety of Summary Judgment
Miranda first claims that the district court’s entry of
summary judgment was improper because DEA failed to
establish that FOIA Exemption 7(A) applied. That exemption
protects from mandatory disclosure “records or information
compiled for law enforcement purposes, but only to the extent
that the production of such law enforcement records or
information . . . could reasonably be expected to interfere with
enforcement proceedings.” 5 U.S.C. § 552(b)(7)(A). This Court
has further interpreted § 552(b)(7)(A) to require a law
enforcement agency invoking the exception to show that the
material withheld “relates to a concrete prospective law
enforcement proceeding.” Bevis v. Dep’t of State, 801 F.2d
1386, 1389 (D.C. Cir. 1986) (quoting Carson v. U.S. Dep’t of
Justice, 631 F.2d 1008, 1018 (D.C. Cir. 1980) (internal
quotation marks omitted)).
We review a district court’s grant of summary judgment de
novo. Assassination Archives & Research Ctr. v. CIA, 334 F.3d
55, 57 (D.C. Cir. 2003). A district court may grant summary
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judgment to a government agency claiming Exemption 7 when
“the agency affidavits describe the documents withheld and the
justifications for nondisclosure in enough detail and with
sufficient specificity to demonstrate that material withheld is
logically within the domain of the exemption claimed.” King v.
U.S. Dep’t of Justice, 830 F.2d 210, 217 (D.C. Cir. 1987); see
also PHE, Inc. v. Dep’t of Justice, 983 F.2d 248, 250 (D.C. Cir.
1993).
We are satisfied that DEA provided affidavits sufficient to
meet these requirements. DEA describes the withheld
documents with reasonable specificity: its affidavits state that
the documents are, with one exception, DEA Form 6s, the forms
the agency uses to record investigative information it has
developed pursuant to its mission to enforce the controlled
substances laws of the United States and related criminal
statutes. The affidavits confirm that DEA’s investigation of
Miranda remains ongoing. Further, the affidavits assert that the
release of any portion of the withheld documents would
compromise the investigation as it could lead to destruction of
evidence and disclosure of potential witnesses’ identities as well
as DEA’s investigative techniques. The affidavits disclose that
at least one document contains one confidential source’s name
and, even if that name were redacted, the details contained in the
remaining information could reveal that source’s identity and
possibly another informant’s as well.
We find unpersuasive appellant’s contention that DEA’s
claim of Exemption 7(A) should be rejected because DEA has
failed to establish a “plausible basis” for its investigation.
Miranda makes a rather curious argument that because her
money-transfer businesses face a high degree of government
scrutiny on a routine basis, that this should effectively inoculate
her from suspicion for money laundering. She makes this
argument despite the fact that her businesses transfer money
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principally to countries from which most illicit drugs flow into
the United States. We note that to accept appellant’s argument
on this point is to conclude that the enterprises most capable of
violating the money laundering statutes would be the least
suspect of committing such violations. The same reasoning
would compel one to conclude that regulated securities
exchange dealers would be unlikely to violate the securities laws
and registered firearms dealers would be unlikely to violate the
firearms laws. We can hardly say that the district court erred by
failing to credit such an argument.
We also reject Miranda’s contention that DEA failed to
establish by its affidavits that a law enforcement investigation
was ongoing or leading to a concrete enforcement action.
Miranda cites the DEA’s failure to follow up with her requests
to cooperate as evidence from which the district court should
have inferred that DEA was no longer actively pursuing its
investigation. While it is true that Exemption 7(A) cannot
justify withholding material unless it relates to a “concrete
prospective law enforcement proceeding,” see NLRB v. Robbins
Tire & Rubber Co., 437 U.S. 214, 232 (1978), this is not quite
the formidable hurdle appellant would make it out to be. As the
Supreme Court explained in Robbins Tire & Rubber Co.
regarding the genesis of this “concrete” requirement:
The tenor of [Congressional testimony on Exemption 7’s]
statutory language clearly suggests that the release of
information in investigatory files prior to the completion of
an actual, contemplated enforcement proceeding was
precisely the kind of interference that Congress continued
to want to protect against. Indeed, Senator Hart stated
specifically that Exemption 7(A) would apply “whenever
the Government’s case in court—a concrete prospective
law enforcement proceeding—would be harmed by the
premature release of evidence or information . . . .”
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Id. (emphasis added). Thus, so long as the investigation
continues to gather evidence for a possible future criminal case,
and that case would be jeopardized by the premature release of
that evidence, Exemption 7(A) applies. The DEA’s affidavits
here informed the district court that the criminal investigation
remained ongoing, and from that the district court could
reasonably infer that this investigation may eventually lead to a
prosecution. Further, the only inference one must necessarily
draw from DEA’s lack of continued contact with Miranda is that
it does not desire her participation in its investigation—it does
not necessarily undermine DEA’s claim that the investigation
remains ongoing.
Appellant has argued repeatedly before both the district
court and this court that the DEA’s lack of interest in
interviewing her despite her repeated expressions of willingness
to engage an interview should be taken as evidence that no
investigation is ongoing. That argument is a non sequitur.
While in many investigations the cooperation of the subject is
obviously desirable, in many others such an interview would be
the last technique an investigative agency would wish to
employ. The very nature of the questions asked by an
investigating agent would tell a knowledgeable subject the
direction in which the investigation was going and provide
strong clues as to the evidence it had in hand. The predicates of
questions asked might indeed provide a subject with the ability
to make well-educated guesses as to the nature of cooperating
individuals and other sources. Thus, the lack of desire on the
DEA’s part to interview Miranda is no evidence that she is not
the subject of an ongoing investigation.
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III. In Camera Review
Miranda next claims that the district court abused its
discretion by failing to conduct an in camera review of the
requested documents. It is true that FOIA provides district
courts the option to conduct in camera review, 5 U.S.C. §
552(a)(4)(B), but it by no means compels the exercise of that
option. See Robbins Tire & Rubber Co., 437 U.S. at 224; PHE,
983 F.2d at 252–53. We review a district court’s decision
whether to conduct in camera review of FOIA documents for
abuse of discretion, Horowitz v. Peace Corps, 428 F.3d 271, 282
(D.C. Cir. 2005), and we have provided guidance on the exercise
of that discretion, see Allen v. CIA, 636 F.2d 1287, 1298–99
(D.C. Cir. 1980), overruled on other grounds by Founding
Church of Scientology of Washington D.C., Inc. v. Smith, 721
F.2d 828 (D.C. Cir. 1983).
In this case, due to the minimal length of the documents
involved, we agree with appellant that the district court would
not have abused its discretion had it chosen to review the
documents in camera. See id. at 1299 (observing that an in
camera review of a fifteen-page document would have offered
the district court an efficient technique for conducting its de
novo review). But that does not in itself compel a conclusion
that the district court’s decision not to conduct an in camera
review constituted an abuse of its discretion. If a district court
believes that in camera inspection is unnecessary “to make a
responsible de novo determination on the claims of exemption,”
Carter v. Dep’t of Commerce, 830 F.2d 388, 392 (D.C. Cir.
1987) (quoting Ray v. Turner, 587 F.2d 1187, 1195 (D.C. Cir.
1978)), it acts within its “broad discretion” by declining to
conduct such a review, id.
Nor was the district court’s omission in its memorandum
opinion of any specific discussion of Miranda’s request that it
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conduct an in camera review of the withheld documents in error.
When a district court finds that a law enforcement agency’s
affidavits sufficiently describe the documents and set forth
proper reasons for invoking an exemption, in camera inspection
of those documents is unnecessary. See Lam Lek Chong v. U.S.
Drug Enforcement Admin., 929 F.2d 729, 735 (D.C. Cir. 1991).
Because the district court here was satisfied that DEA’s
affidavits properly placed the withheld documents within the
scope of Exemption 7(A), it did not need to reach the question
of in camera review in its opinion.
IV. Segregability
Miranda’s final claim is that the district court erred by
failing to make a segregability finding. We recently reiterated
that the district court both has “an affirmative duty to consider
the segregability issue sua sponte” and that it errs when it
“approves the government’s withholding of information under
the FOIA without making an express finding on segregability.”
Morley v. CIA, 508 F.3d 1108, 1123 (D.C. Cir. 2007) (internal
quotations and citations omitted).
Under this Circuit’s law, the district court’s failure to
address segregability in its memorandum opinion is reversible
error. Id. Nevertheless, in this instance we need not prolong the
case further by remanding it solely for this purpose. We recall
that our review of summary judgment is de novo. “[O]ur task
[is] precisely the same as the district court’s” when “the decision
under review [is] a final determination by the district court as to
the legal sufficiency of [an] agency’s determination to disclose
contested information.” Occidental Petroleum Corp. v. SEC, 873
F.2d 325, 340 (D.C. Cir. 1989). As we have the same record
before us as did the district court, we are just as capable of
evaluating the DEA’s affidavits regarding segregability as is the
court below. We conclude that no part of the requested
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documents was improperly withheld.
The FOIA requires that “[a]ny reasonably segregable
portion of a record shall be provided to any person requesting
such record after deletion of the portions which are exempt.” 5
U.S.C. § 552(b). This Circuit has long recognized, however,
that documents may be withheld in their entirety when non-
exempt portions “are inextricably intertwined with exempt
portions.” Mead Data Central, Inc. v. U.S. Dep’t of Air Force,
566 F.2d 242, 260 (D.C. Cir. 1977). A court may rely on
government affidavits that show with reasonable specificity why
documents withheld pursuant to a valid exemption cannot be
further segregated for this reason. Armstrong v. Executive
Office of the President, 97 F.3d 575, 578 (D.C. Cir. 1996).
Here, DEA provided sufficient information in its affidavits
to allow a court to affirm withholding of the documents in toto.
DEA stated that it had conducted a page-by-page review of all
investigative records contained in the requested documents, and
determined that each document, and each page of each
document, contained information subject to law enforcement
withholding exemptions. It justified its inability to simply
redact sensitive portions (i.e., informant names) from these
documents by pointing out that the balance of information
remaining in the documents could still reveal the extent of the
government’s investigation, the acts on which it is focused, what
evidence of wrongdoing it is aware of, the identity of
cooperating sources, and the agency’s investigative techniques
in this investigation. The affidavits further attested that release
of any of this information could jeopardize the investigation.
For these reasons we are satisfied that no portions of the
withheld documents may be segregated and released to
appellant.
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V. Conclusion
For the reasons discussed above, we affirm the district
court’s judgment.