9th Circuit gives FOIA guidance for second time in 2018

For the second time this year, the 9th U.S. Circuit Court of Appeals has issued guidance on the scope of protections for governmental documents under the Freedom of Information Act.

The court ruled Thursday that the act's protection of materials pertaining to law enforcement do not need to be tied directly to a specific law.

The decision is somewhat of a setback for the American Civil Liberties Union of Northern California and the Asian Law Caucus, which had filed two requests for documents with the FBI in 2010.

The groups were looking for information about the FBI's alleged surveillance of the Muslim, Arab, South Asian and Middle Eastern communities in the San Francisco Bay Area.

In addition to specific records pertaining to this activity, the groups' requests also included documents that dealt with general FBI investigative practices, not unique to any particular investigation, the 9th Circuit's opinion said.

The FBI did not respond to the requests until after the ACLU and the Asian Law Caucus sued the agency in federal court, at which point it released some 50,000 pages of information, withholding almost as many.

In March 2015, U.S. District Judge Richard Seeborg of the Northern District granted a summary judgment motion in favor of the plaintiff advocacy groups, ruling that the FBI had failed to establish a "rational nexus" between the enforcement of specific federal laws and the requested documents.

Exemption 7 under the act, the center of the legal dispute, protects documents pertaining to "law enforcement."

However, the law requires that the release of documents would cause specific harms for the protection to apply.

In its Thursday ruling, the 9th Circuit declined to weigh in on whether the documents at hand were exempt from the Freedom of Information Act request under the law's enumerated harms.

But the court vacated Seeborg's analysis on whether Exemption 7 requires a connection to a specific law for paperwork to be protected. ACLU of N. Cal. v. FBI, 2018 DJDAR 1132 (9th Cir. Feb. 1, 2018).

Citing a prior circuit ruling that accorded "special deference" to agencies like the FBI in Exemption 7 disputes, as well as legislative changes in the law's language to include protections for investigatory "records" as well as "information," the panel said that federal agencies' generalized records need only be connected to established law enforcement purposes to be safe under Exemption 7.

"[W]hen a FOIA request seeks guidelines and other generalized documents compiled by a law enforcement agency not related to a particular investigation, the government need not link the document to the enforcement of a particular statute in order to claim the protection of Exemption 7," wrote Judge Andrew D. Hurwitz in his opinion.

Angela Elaine Kleine, a partner at Morrison & Foerster LLP who represented the ACLU and the Asian Law Caucus before the court, said that she and her clients were disappointed by the ruling.

"We view it as a setback, but not a total setback for transparency," Kleine said in a phone interview.

"The FBI will still have to show a rational nexus on remand and still has to show specific harms," she added.

Kleine commented that the case is part of a broader effort to expose alleged surveillance of minority communities in the Bay Area.

"[The FBI] hasn't provided any explanation of what law it's enforcing when it's surveilling these communities, she said. "That says a lot."

The case will now be remanded back to Seeborg for reconsideration in light of the 9th Circuit's new precedent.

Under that standard, the FBI will now need to show a connection between its law enforcement duties and the disputed documents.

9th Circuit Judge Sandra S. Ikuta and U.S. District Judge James S. Gwin, visiting from the Northern District of Ohio, joined with Hurwitz on the court's Thursday ruling.

In January, a different panel of the 9th Circuit weighed in on Freedom of Information Act protections for general law enforcement documents within U.S. attorney offices.

The case involved attempts by the ACLU to obtain information about the use of tracking devices in criminal investigations and the act's protections for unique legal analysis.

The panel in that case said that U.S. attorney offices' general internal discussion on interpretation of U.S. Supreme Court precedent pertaining to Fourth Amendment case law was not protected by the act's exemptions.

The panel concluded, however, that "particularized arguments, strategies, or tactics generated in anticipation of litigation, even if not for a particular claim," were protected. ACLU v. U.S. Department of Justice, 2018 DJDAR 643 (9th Cir., Jan. 18, 2018).

The Department of Justice did not respond to a request for comment for this story.