finding explanations adequate where declarant explained that “[t]he release of specifics of these investigative techniques would risk circumvention of the law by individuals who seek to utilize computers in violation of laws. By releasing that information, the FBI would be exposing computer forensic vulnerabilities to potential criminals,” and disclosure of reports “could enable criminals to employ countermeasures to avoid detection, thus jeopardizing the FBI’s investigatory missions.”
How later courts described this case
- finding explanations adequate where declarant explained that “[t]he release of specifics of these investigative techniques would risk circumvention of the law by individuals who seek to utilize computers in violation of laws. By releasing that information, the FBI would be exposing computer forensic vulnerabilities to potential criminals,” and disclosure of reports “could enable criminals to employ countermeasures to avoid detection, thus jeopardizing the FBI’s investigatory missions.”
- holding that, because the records sought were “generated in the course of investigating and prosecuting [plaintiff] on insider trading charges[, they] were quite obviously related to the [agency]’s law enforcement duties” and “easily qualif[ied]” for the Exemption 7 threshold
- holding that “details about procedures used during the forensic examination of a computer by an FBI forensic examiner ... are undoubtedly ‘techniques’ or ‘procedures’ used for ‘law enforcement investigations’ ” (internal quotation marks and citation omitted)
- concluding that Exemption 7(E) was properly applied to “‘details about procedures used during the forensic examination of a computer’ by an FBI forensic examiner[,]” as well as associated data collection procedures, which are “not known to the public”
Written by the judges who cited it.
The opinion
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 15, 2011 Decided July 1, 2011
No. 10-5072
ROGER BLACKWELL,
APPELLANT
v.
FEDERAL BUREAU OF INVESTIGATION AND UNITED STATES
DEPARTMENT OF JUSTICE,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:09-cv-00661)
James H. Lesar argued the cause and filed the briefs for
appellant.
David C. Rybicki, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Ronald C.
Machen, Jr., U.S. Attorney, and R. Craig Lawrence, Assistant
U.S. Attorney.
Before: ROGERS and KAVANAUGH, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
2
Opinion for the Court filed by Circuit Judge
KAVANAUGH, with whom Circuit Judge ROGERS and Senior
Circuit Judge WILLIAMS join.
Concurring opinion filed by Circuit Judge ROGERS.
KAVANAUGH, Circuit Judge: Roger Blackwell was
convicted of federal insider trading crimes. In this Freedom
of Information Act suit, he seeks information from the FBI
that he believes would show misconduct by the federal
investigators and prosecutors handling his case. In response
to Blackwell’s FOIA request, the FBI produced many
documents. But it redacted or withheld many other
documents pursuant to various FOIA exemptions, including
Exemption 7(C)’s protection for “personal privacy” and
Exemption 7(E)’s protection for certain law enforcement
techniques and procedures. Blackwell has challenged the
legitimacy of the redactions and withholdings, the adequacy
of the FBI’s search for responsive documents, and the
sufficiency of the FBI’s Vaughn index describing the redacted
and withheld documents. The District Court rejected
Blackwell’s arguments. We affirm.
I
In 2005, Roger Blackwell was convicted of 19 counts of
insider trading and related offenses. He was sentenced to 6
years’ imprisonment and fined $1 million. His convictions
and sentence were upheld on direct appeal and in habeas
proceedings. See United States v. Blackwell, 459 F.3d 739
(6th Cir. 2006) (affirming convictions and sentence);
Blackwell v. United States, Crim. No. 2:04-cr-00134 (S.D.
Ohio Mar. 30, 2010) (denying habeas motion).
3
Blackwell has consistently maintained that he is innocent.
He claims that he was unjustly targeted and prosecuted by the
Federal Government because of his wealth and public
visibility. In 2007, he sent several FOIA requests to the FBI
for, among other things, all documents related to key
witnesses in his trial, as well as documents related to the costs
of the investigation and prosecution.
When the FBI received Blackwell’s FOIA request, it
searched its databases for documents related to Blackwell,
identifying 3319 pages of potentially responsive documents.
Of those, it determined that 1869 pages were responsive.
After applying the various FOIA exemptions, the FBI gave
Blackwell 1103 pages in full and 557 pages in part. It
withheld 209 pages in their entirety. In its response to
Blackwell, the FBI stated that it had identified responsive
documents by searching based on Blackwell’s name alone and
that it had withheld information related to third parties.
In this lawsuit, Blackwell alleged that the FBI failed to
justify its redactions and withholdings under the claimed
FOIA exemptions, that the FBI’s search was inadequate, and
that its Vaughn index was insufficient. The District Court
granted summary judgment to the FBI on all issues.
Blackwell v. FBI, 680 F. Supp. 2d 79, 96 (D.D.C. 2010). We
review that decision de novo. See Elliott v. Dep’t of
Agriculture, 596 F.3d 842, 847 (D.C. Cir. 2010).
II
The Freedom of Information Act allows the public to
obtain certain Executive Branch agency documents. See 5
U.S.C. § 552. The Act contains a number of exemptions. See
id. § 552(b); see also CIA v. Sims, 471 U.S. 159, 166-67
(1985). Here, the FBI invoked Exemptions 7(C) and 7(E) to
4
withhold records requested by Blackwell. 1 Exemption 7(C)
authorizes agencies to withhold “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 constitute an
unwarranted invasion of personal privacy.” 5 U.S.C.
§ 552(b)(7)(C). Exemption 7(E) permits withholding of
“records or information compiled for law enforcement
purposes, but only to the extent that the production of such
law enforcement records or information . . . would disclose
techniques and procedures for law enforcement investigations
or prosecutions, or would disclose guidelines for law
enforcement investigations or prosecutions if such disclosure
could reasonably be expected to risk circumvention of the
law.” Id. § 552(b)(7)(E).
Blackwell initially argues that the requested documents
qualify for neither of those exemptions because they are not
“records or information compiled for law enforcement
purposes.” 5 U.S.C. § 552(b)(7). Even if they qualify as law
enforcement files, Blackwell contends that the FBI’s claimed
exemptions do not apply. We are not persuaded.
A
At the outset, Blackwell contends that the documents at
issue in this case are not protected under either Exemption
7(C) or Exemption 7(E) because those exemptions apply only
to “records or information compiled for law enforcement
purposes.” 5 U.S.C. § 552(b)(7). To show that the disputed
1
The FBI invoked Exemptions 2 and 6 in addition to
Exemptions 7(C) and 7(E). We need not consider Exemptions 2
and 6 because we conclude that the documents at issue fall within
Exemption 7(C) or Exemption 7(E).
5
documents were “compiled for law enforcement purposes,”
the FBI need only “establish a rational nexus between the
investigation and one of the agency’s law enforcement duties
and a connection between an individual or incident and a
possible security risk or violation of federal law.” Campbell
v. Dep’t of Justice, 164 F.3d 20, 32 (D.C. Cir. 1998) (internal
quotation marks and citation omitted); see also Keys v. Dep’t
of Justice, 830 F.2d 337, 340 (D.C. Cir. 1987).
The FBI here says that the files requested by Blackwell
were compiled for law enforcement purposes under that
standard. The FBI’s assertion is entitled to deference,
Campbell, 164 F.3d at 32, and it is especially convincing in
this case because Blackwell explicitly sought records related
to his own criminal prosecution. The documents generated in
the course of investigating and prosecuting Blackwell on
insider trading charges were quite obviously related to the
FBI’s law enforcement duties. Thus, the documents sought in
this case easily qualify as “records or information compiled
for law enforcement purposes.” 5 U.S.C. § 552(b)(7).
B
Blackwell challenges the FBI’s invocation of Exemption
7(C). Exemption 7(C) authorizes the Government to withhold
law enforcement records that “could reasonably be expected
to constitute an unwarranted invasion of personal privacy.”
Id. § 552(b)(7)(C).
As a result of Exemption 7(C), FOIA ordinarily does not
require disclosure of law enforcement documents (or portions
thereof) that contain private information. See, e.g., Martin v.
Dep’t of Justice, 488 F.3d 446, 457 (D.C. Cir. 2007); Boyd v.
Criminal Division of the Dep’t of Justice, 475 F.3d 381, 387-
88 (D.C. Cir. 2007); Oguaju v. United States, 378 F.3d 1115,
6
1117 (D.C. Cir. 2004); SafeCard Servs., Inc. v. SEC, 926 F.2d
1197, 1205-06 (D.C. Cir. 1991). As this Court has said,
“privacy interests are particularly difficult to overcome when
law enforcement information regarding third parties is
implicated.” Martin, 488 F.3d at 457. Moreover, “the
Supreme Court has made clear that requests for such third
party information are strongly disfavored.” Id. That is
particularly true when the requester asserts a public interest –
however it might be styled – in obtaining information that
relates to a criminal prosecution.
The relevant question here is whether Blackwell has
shown government misconduct sufficient to overcome
Exemption 7(C)’s protection for personal privacy under the
test outlined in National Archives & Records Admin. v.
Favish, 541 U.S. 157 (2004). To obtain private information
under the Favish test, the requester must at a minimum
“produce evidence that would warrant a belief by a reasonable
person that the alleged Government impropriety might have
occurred.” Favish, 541 U.S. at 174. We conclude that
Blackwell has failed to meet the demanding Favish standard.
The only support Blackwell offers for his allegation of
government misconduct is his own affidavit, which recounts a
litany of allegedly suspicious circumstances but lacks any
substantiation. His most inflammatory allegation – that “the
prosecutor claimed he was not aware of any immunity
agreement” with Blackwell’s ex-wife’s parents but that the
agreement was later discovered “to be signed by the very
same prosecuting attorney that denied its existence,”
Blackwell Decl. ¶ 9 – is utterly unsupported by references to
the trial record. Blackwell’s claim that the Government
deliberately allowed his former in-laws to flee the country and
avoid subpoenas that would have required their testimony at
trial, id. ¶ 11, is similarly unsupported. He provides no
7
evidence that the Government even knew that the witnesses
would be traveling, much less that it had allowed them to
leave for the purpose of evading subpoenas. And he supplies
no evidence to support his claim that his computers were
“destroyed, and returned to [his] office in unusable
condition,” rendering them useless for his defense. Id. ¶ 23.
He gives no pictures of the “destroyed” computers, no
documentation by a computer expert verifying that they were
“unusable.” The affidavit alludes to the existence of such
evidence, but Blackwell did not provide it to the District
Court. Id. ¶ 25. In short, Blackwell has not come close to
meeting the demanding Favish standard for challenging the
FBI’s invocation of FOIA Exemption 7(C).
C
Blackwell also contests the FBI’s assertion of Exemption
7(E). That exemption permits withholding of law
enforcement records “to the extent that the production of such
law enforcement records or information . . . would disclose
techniques and procedures for law enforcement investigations
or prosecutions, or would disclose guidelines for law
enforcement investigations or prosecutions if such disclosure
could reasonably be expected to risk circumvention of the
law.” 5 U.S.C. § 552(b)(7)(E).
This Court has stated that “the exemption looks not just
for circumvention of the law, but for a risk of circumvention;
not just for an actual or certain risk of circumvention, but for
an expected risk; not just for an undeniably or universally
expected risk, but for a reasonably expected risk; and not just
for certitude of a reasonably expected risk, but for the chance
of a reasonably expected risk.” Mayer Brown LLP v. IRS, 562
F.3d 1190, 1193 (D.C. Cir. 2009). Under our precedents,
Exemption 7(E) sets a relatively low bar for the agency to
8
justify withholding: “Rather than requiring a highly specific
burden of showing how the law will be circumvented,
exemption 7(E) only requires that the [agency] demonstrate
logically how the release of the requested information might
create a risk of circumvention of the law.” Id. at 1194
(internal quotation marks and alterations omitted).
The FBI invoked Exemption 7(E) here with respect to
two kinds of information. The first was “details about
procedures used during the forensic examination of a
computer” by an FBI forensic examiner. Hardy Decl. ¶ 70.
Forensic examination procedures are undoubtedly
“techniques” or “procedures” used for “law enforcement
investigations.” Thus, the FBI needed only to “demonstrate
logically how the release of the requested information might
create a risk of circumvention of the law.” Mayer Brown
LLP, 562 F.3d at 1194 (alterations omitted). To that end,
David Hardy, Chief of the FBI’s Record/Information
Dissemination Section, explained that, “[t]he release of
specifics of these investigative techniques would risk
circumvention of the law by individuals who seek to utilize
computers in violation of laws. By releasing that information,
the FBI would be exposing computer forensic vulnerabilities
to potential criminals.” Hardy Decl. ¶ 45. That explanation
satisfies the Exemption 7(E) standard.
The FBI also invoked Exemption 7(E) to protect
“methods of data collection, organization and presentation
contained in ChoicePoint reports.” Hardy Decl. ¶ 71. Hardy
explained that “the manner in which the data is searched,
organized and reported to the FBI is an internal technique, not
known to the public,” and the “method was developed by
ChoicePoint to meet the specific investigative needs of the
FBI.” Id. ¶ 46. Hardy also said that disclosure of the reports
“could enable criminals to employ countermeasures to avoid
9
detection, thus jeopardizing the FBI’s investigatory missions.”
Id. These statements logically explain how the data could
help criminals circumvent the law, and that suffices here to
justify invocation of Exemption 7(E). See Mayer Brown LLP,
562 F.3d at 1194.
III
We briefly address two additional matters:
Blackwell contends that the FBI’s search for responsive
documents was inadequate because the Bureau did not search
its databases using the names of the individuals he had
specifically mentioned in his request. The FBI counters that it
“will not conduct searches on third parties in the absence of
proofs of death or privacy waivers from these individuals, or
an articulation by a requester of a strong public interest that
outweighs any privacy interest.” Second Hardy Decl. ¶ 7.
Because a search for records “pertaining to” specific
individuals, see FOIA Request of Dr. Roger Blackwell (Aug.
27, 2007), would have added only information that we have
concluded is protected by Exemption 7(C), it follows that the
FBI was correct in declining to search for such documents.
Blackwell also says that the FBI’s Vaughn index of
withheld documents was inadequate primarily because it
failed to provide context for certain documents that had been
entirely withheld. But the second Hardy declaration provided
a concise explanation for each of these withheld documents.
See Second Hardy Decl. ¶¶ 11-12. Blackwell’s Vaughn index
argument is therefore unavailing.
10
***
We affirm the judgment of the District Court.
So ordered.
ROGERS, Circuit Judge, concurring: I write separately to
make clear that the court rejects the government’s broadly stated
position that under the Freedom of Information Act (“FOIA”), “a
FOIA requester’s desire to obtain Brady[1] material is not a
public interest for purposes of Exemption 7(C).” Appellee’s Br.
22. To the extent the government’s position suggests that when
a requester seeks exculpatory evidence for purposes of a direct
appeal or a collateral attack on his conviction disclosure of such
information is categorically not in the public interest for
purposes of FOIA Exemption 7(C), this misreads precedent. To
the contrary, an individual’s “personal stake in the release of the
requested information is ‘irrelevant’ to the balancing of public
and third-party privacy interests required by Exemption 7(C),”
Roth v. Dep’t of Justice, No. 09-5428, slip op. at 23 (D.C. Cir.
June 28, 2011) (quoting Mays v. DEA, 234 F.3d 1324, 1327
(D.C. Cir. 2000)), and “the public might well have a significant
interest in knowing whether the federal government engaged in
blatant Brady violations,” id. This court has not applied a per se
rule and does not do so today. See, e.g., Boyd v. Crim. Div. of
the U.S. Dep’t of Justice, 475 F.3d 381, 387–88 (D.C. Cir. 2007);
see also Martin v. Dep’t of Justice, 488 F.3d 446, 453, 456–58
(D.C. Cir. 2007).
The court applies the standard in National Archives &
Records Administration v. Favish, 541 U.S. 157 (2004), whereby
a FOIA requester, to overcome the government’s authority not
to disclose pursuant to Exemption 7(C), must “produce evidence
that would warrant a belief by a reasonable person that the
alleged Government impropriety might have occurred.” id. at
174. With no additional thumb on the scale, the court concludes
that Blackwell does not meet this standard. Op. at 6. Because
Blackwell has not as an evidentiary matter demonstrated that the
government failed to comply with its duty of disclosure of
exculpatory material at the time of his trial or appeal or that it is
1
Brady v. Maryland, 373 U.S. 83 (1963).
2
currently withholding evidence that demonstrates his innocence
of the crimes of which he was convicted, his request fails under
the Favish standard; no per se rule is applied.