Public Employees for Environmental Responsibility v. United States Section, International Boundary & Water Commission

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 10, 2013 Decided January 22, 2014

No. 12-5158

PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY,

APPELLANT

v.

UNITED STATES SECTION, INTERNATIONAL BOUNDARY AND

WATER COMMISSION, U.S. - MEXICO,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:11-cv-00261)

Paula Dinerstein argued the cause and filed the briefs for

appellant.

Jane M. Lyons, Assistant U.S. Attorney, argued the cause

for appellee. With her on the brief were Ronald C. Machen

Jr., U.S. Attorney, and R. Craig Lawrence, Assistant U.S.

Attorney. Marian L. Borum, Assistant U.S. Attorney, entered

an appearance.

Before: KAVANAUGH, Circuit Judge, and SENTELLE and

RANDOLPH, Senior Circuit Judges.

2

Opinion for the Court filed by Circuit Judge

KAVANAUGH.

KAVANAUGH, Circuit Judge: Throughout the United

States, one finds a great deal of critical infrastructure, such as

bridges, airports, railroad tracks, dams, and research facilities.

Federal agencies possess many documents relating to critical

infrastructure. For understandable security reasons,

particularly in the wake of the September 11, 2001, attacks on

the United States and the threat of future attacks, federal

agencies sometimes want to keep that information

confidential. At the same time, members of the public

sometimes want to review that sensitive information to see

what the government is up to and to help ensure that the

government is adequately protecting the country from harm.

Our task here is to interpret how the Freedom of Information

Act balances those competing interests.

For decades, this Court held that agencies could withhold

critical infrastructure records under FOIA’s Exemption 2,

which covers documents “related solely to the internal

personnel rules and practices of an agency.” 5 U.S.C.

§ 552(b)(2); see Crooker v. Bureau of Alcohol, Tobacco &

Firearms, 670 F.2d 1051 (D.C. Cir. 1981). In Milner v.

Department of the Navy, the Supreme Court ruled that

Exemption 2 does not encompass critical infrastructure

records because those records do not relate “solely to the

internal personnel rules and practices of an agency.” 131 S.

Ct. 1259, 1262 (2011). In an important concurring opinion,

however, Justice Alito explained that Exemption 7, which

encompasses certain records compiled for law enforcement

purposes, could cover some critical infrastructure records. Id.

at 1271-73 (Alito, J., concurring).

3

Public Employees for Environmental Responsibility,

known as PEER, is a non-profit organization dedicated to

educating the public about the activities of the U.S.

Government. PEER wants records related to two dams

located on the border between the United States and Mexico,

Amistad Dam and Falcon Dam. So PEER submitted a FOIA

request to the United States Section of the International

Boundary and Water Commission, the federal agency that

manages the dams. Citing security concerns, the U.S. Section

initially claimed that the records fell within Exemption 2.

After the Supreme Court’s decision in Milner, the U.S.

Section changed course, arguing that some requested records

were exempt under Exemption 5, some were exempt under

Exemption 7(E), and some were exempt under Exemption

7(F). Exemption 5 covers, among other things, agency

records that fall within the deliberative process privilege.

Exemptions 7(E) and 7(F) cover various kinds of law

enforcement records.

First, invoking Exemption 5, the U.S. Section withheld a

report about Amistad Dam that had been prepared by a panel

of expert advisors. The expert report discusses potential

structural deficiencies in the dam’s foundation and

embankment. Second, invoking Exemption 7(E), the U.S.

Section withheld portions of its emergency action plans for

Amistad Dam and Falcon Dam. The emergency action plans

contain guidelines outlining the steps that law enforcement

and emergency personnel should take in response to a failure

of the dams. Third, invoking Exemption 7(F), the U.S.

Section withheld a set of inundation maps displaying the

downstream areas and populations that would be affected if

the dams were to break. The District Court upheld the

claimed exemptions.

4

Here, we vacate and remand on Exemption 5 and the

expert report because a potentially dispositive factual question

is unresolved. We affirm the District Court’s judgment as to

Exemption 7(E) and the emergency action plans and as to

Exemption 7(F) and the inundation maps.

I

The United States Section is one component of the

International Boundary and Water Commission, a joint U.S.-

Mexico entity created by treaty to implement the two nations’

agreements regarding the Rio Grande River. One of the U.S.

Section’s functions is to manage dams along the river,

including Amistad Dam and Falcon Dam.

A non-profit organization known as Public Employees

for Environmental Responsibility submitted a FOIA request

to the U.S. Section seeking information about Amistad Dam

and Falcon Dam. PEER wanted to apprise the public of what

it believed to be hazards stemming from the U.S. Section’s

poor management of the dams.

In response to PEER’s request, the U.S. Section released

many of the requested records. But the U.S. Section withheld

three sets of records. First, the U.S. Section withheld a report

about Amistad Dam that had been prepared by a panel of

expert advisors. The report discusses potential structural

deficiencies in the dam’s foundation and embankment.

Second, the U.S. Section withheld portions of its emergency

action plans for Amistad Dam and Falcon Dam. The

emergency action plans contain guidelines outlining the steps

that law enforcement and emergency personnel should take in

response to a failure of the dams. Third, the U.S. Section

withheld a set of inundation maps. The maps display the

downstream areas and populations that would be affected if

5

the dams were to break. The maps also reveal the estimated

time it would take floodwater to reach downstream locations

and peak flow times at those locations.

After exhausting its administrative remedies, PEER

sought judicial review in the U.S. District Court for the

District of Columbia. The U.S. Section initially relied

primarily on Exemption 2 to justify its withholding of the

expert report, emergency action plans, and inundation maps.

Shortly after PEER filed suit, the Supreme Court decided

Milner v. Department of the Navy, 131 S. Ct. 1259 (2011).

That decision made clear that Exemption 2 does not cover

records relating to critical infrastructure. In response to

Milner, the U.S. Section invoked new exemptions to justify its

withholdings. The agency asserted that the expert report fell

within Exemption 5, that the emergency action plans were

covered by Exemption 7(E), and that the inundation maps

were exempt under Exemption 7(F). The U.S. Section moved

for summary judgment on those grounds. PEER cross-moved

for summary judgment, contesting the applicability of those

exemptions and arguing that the U.S. Section’s alleged bad

faith precluded reliance on the affidavits submitted in support

of the agency’s motion.

The District Court granted the U.S. Section’s motion for

summary judgment. The court ruled that the U.S. Section had

conducted an adequate search for the documents requested by

PEER, had properly withheld the three sets of records under

Exemptions 5 and 7, and had released all segregable material

in those records. See PEER v. USIBWC, 839 F. Supp. 2d 304

(D.D.C. 2012). PEER timely appealed that decision.1 We

1

The District Court also concluded that Exemption 6 covered

personal contact information within the emergency action plans and

6

review the District Court’s grant of summary judgment de

novo. See CREW v. FEC, 711 F.3d 180, 184 (D.C. Cir.

2013).

II

PEER contends that the U.S. Section acted in bad faith

when it responded to PEER’s FOIA request and that the

District Court therefore should not have relied on the U.S.

Section’s affidavits in granting summary judgment. As

evidence of bad faith, PEER points out that the U.S. Section

both denied awareness of the expert report in its initial reply

to PEER and failed to uncover a set of inundation maps in its

initial FOIA search. But an agency’s failure to turn up every

responsive document in an initial search is not necessarily

evidence of bad faith. During a second search prompted by

PEER’s administrative appeal, the U.S. Section found the

expert report and the inundation maps. The agency then

quickly notified PEER that it had located the records. Under

our precedents, those actions do not suggest that the U.S.

Section was acting in bad faith. See Iturralde v. Comptroller

of the Currency, 315 F.3d 311, 315 (D.C. Cir. 2003);

Meeropol v. Meese, 790 F.2d 942, 953 (D.C. Cir. 1986).

PEER also seizes on picayune differences in the agency’s

various submissions to the District Court to contend that the

agency intentionally misled that court. PEER’s claims on this

score totter between the trivial and the speculative. Stated

simply, we agree with the District Court that PEER’s

allegations do not undermine the reliability of the agency’s

affidavits.

that Exemption 5 covered an email related to the emergency action

plans. PEER does not challenge either decision on appeal.

7

III

On the merits of its FOIA request, PEER first argues that

it is entitled to the expert report on structural deficiencies in

Amistad Dam. With respect to the expert report, the U.S.

Section asserted Exemption 5. That exemption covers “inter-

agency or intra-agency memorandums or letters which would

not be available by law to a party . . . in litigation with the

agency.” 5 U.S.C. § 552(b)(5). Exemption 5 incorporates the

deliberative process privilege. The expert report is plainly

deliberative and pre-decisional and therefore otherwise would

fall within the deliberative process privilege, as the District

Court concluded. The question is whether it is an “inter-

agency or intra-agency” report.

As its reference to “inter-agency” and “intra-agency”

records would indicate, Exemption 5 is most often invoked

for documents authored by officers or employees of a U.S.

government “agency.” See Department of the Interior v.

Klamath Water Users Protective Association, 532 U.S. 1, 8

(2001). For FOIA purposes, the term “agency” is defined to

mean, with certain exceptions not relevant here, “each

authority of the Government of the United States.” 5 U.S.C.

§§ 551(1), 552(f)(1). Because Congress defined “agency” to

include only authorities of the U.S. Government, “intra-

agency” and “inter-agency” are ordinarily read to refer only to

documents created by officers or employees within the U.S.

Government.

In the District Court, PEER asserted that officials of the

Mexican National Water Commission assisted in preparing

the expert report. A foreign entity such as the Mexican

National Water Commission is of course not an authority of

the U.S. Government. Therefore, according to PEER, if

8

officials of the Mexican agency assisted in preparing the

expert report, the expert report would not fall within the terms

of Exemption 5 – “inter-agency or intra-agency” – as those

terms are ordinarily interpreted.

As the U.S. Section correctly responds, however, this

Court has also interpreted the phrase “intra-agency” in

Exemption 5 to go beyond the text and include U.S. agency

records authored by non-agency entities if those records were

solicited by a U.S. agency in the course of its deliberative

process. See McKinley v. Board of Governors of the Federal

Reserve System, 647 F.3d 331, 336 (D.C. Cir. 2011). This

Court has referred to this as the “consultant corollary” to

Exemption 5.

The consultant corollary was addressed by the Supreme

Court in Klamath. Assuming without deciding that the

consultant corollary was valid, the Court held that the

corollary would not exempt records that had been created by

several Indian tribes and provided to a U.S. agency, the

Bureau of Reclamation. See Klamath, 532 U.S. at 12. The

Court reasoned that the corollary would not apply because the

tribes provided the records to the Bureau of Reclamation

“with their own . . . interests in mind” and as “self-advocates

at the expense of others seeking benefits inadequate to satisfy

everyone.” Id. In the wake of Klamath, we have confined the

consultant corollary to situations where an outside consultant

did not have its own interests in mind. See McKinley, 647

F.3d at 336-37.

Here, the U.S. Section argues that even if PEER is correct

that the Mexican National Water Commission assisted in

preparing the expert report, the Mexican agency did so in

order to advise the U.S. Section, not to advance the Mexican

9

agency’s own interests. For that reason, the U.S. Section

believes that the expert report falls within the consultant

corollary.

PEER disagrees, based on Klamath. PEER argues that,

like the Indian tribes in Klamath, the Mexican National Water

Commission is not a mere consultant to a U.S. agency. In

PEER’s view, foreign government entities may not be

characterized as mere consultants to an executive agency of

the U.S. Government, at least in this context. Therefore,

PEER argues that the consultant corollary cannot apply in this

case – and that Exemption 5 does not cover the expert report.

This is a legal issue of first impression. And it would be

unnecessary to resolve it if officials of the Mexican National

Water Commission did not actually assist in preparing the

expert report. The problem is that we do not know if officials

of the Mexican National Water Commission actually assisted

in preparing the expert report.2

If the Mexican agency did not assist in preparing the

expert report, the deliberative process privilege – and

therefore Exemption 5 – would cover the report.3 We

therefore vacate the District Court’s judgment as to

Exemption 5 and the expert report and remand for the District

Court to determine whether officials of the Mexican agency

assisted in preparing the expert report.

2

This factual issue was not resolved in the District Court

because the District Court found that Exemption 5 would apply

even if the Mexican National Water Commission assisted in

preparing the expert report.

3

If the Mexican agency did assist in preparing the expert

report, we take no position at this time on whether the expert report

would be covered by the consultant corollary.

10

IV

We next consider the emergency action plans and the

inundation maps. The U.S. Section asserted Exemptions 7(E)

and 7(F) to justify its withholding of those records. To fall

within any of the exemptions under the umbrella of

Exemption 7, a record must have been “compiled for law

enforcement purposes.” 5 U.S.C. § 552(b)(7). To fall within

Exemptions 7(E) and 7(F), release of a record also must

threaten a particular harm. Exemption 7(E) covers a record

where the record’s release “would disclose techniques and

procedures for law enforcement investigations or

prosecutions, or would disclose guidelines for law

enforcement investigations or prosecutions if such disclosure

could reasonably be expected to risk circumvention of the

law.” Id. § 552(b)(7)(E). Exemption 7(F) covers a record

where the record’s release “could reasonably be expected to

endanger the life or physical safety of any individual.” Id.

§ 552(b)(7)(F).

We conclude that the emergency action plans and the

inundation maps were “compiled for law enforcement

purposes,” the threshold requirement for application of

Exemption 7. We also conclude that the release of the records

could lead to the harms listed in Exemptions 7(E) and 7(F).

Therefore, the U.S. Section permissibly withheld the

emergency action plans and the inundation maps.

A

To fall within Exemption 7, documents must first meet a

threshold requirement: that the records were “compiled for

law enforcement purposes.” 5 U.S.C. § 552(b)(7).

11

The term “law enforcement” in Exemption 7 refers to the

act of enforcing the law, both civil and criminal. See Tax

Analysts v. IRS, 294 F.3d 71, 77 (D.C. Cir. 2002); BLACK’S

LAW DICTIONARY 964 (9th ed. 2009) (defining “law

enforcement” as the “detection and punishment of violations

of the law”). Law enforcement entails more than just

investigating and prosecuting individuals after a violation of

the law. As Justice Alito explained in his important

concurrence in Milner, the “ordinary understanding of law

enforcement includes . . . proactive steps designed to prevent

criminal activity and to maintain security.” Milner v.

Department of the Navy, 131 S. Ct. 1259, 1272 (2011) (Alito,

J., concurring). “Likewise, steps by law enforcement officers

to prevent terrorism surely fulfill ‘law enforcement

purposes.’” Id.

According to the Supreme Court, the term “compiled” in

Exemption 7 requires that a document be created, gathered, or

used by an agency for law enforcement purposes at some time

before the agency invokes the exemption. See John Doe

Agency v. John Doe Corp., 493 U.S. 146, 155 (1989). As

Justice Alito explained in Milner, “federal building plans and

related information – which may have been compiled

originally for architectural planning or internal purposes –

may fall within Exemption 7 if that information is later

compiled and given to law enforcement officers for security

purposes.” Milner, 131 S. Ct. at 1273 (Alito, J., concurring).

In this case, the U.S. Section therefore needs to establish that

the emergency action plans and the inundation maps were

created for law enforcement purposes or were later gathered

or used for such purposes.

This Court assesses an agency’s Exemption 7 claim of a

law enforcement purpose in a manner first articulated in Pratt

12

v. Webster, 673 F.2d 408 (D.C. Cir. 1982). See Tax Analysts,

294 F.3d at 76-79. If the agency’s principal function is law

enforcement, we are “more deferential” to the agency’s

claimed purpose for the particular records. Id. at 77. If the

agency has mixed law enforcement and administrative

functions, we will “scrutinize with some skepticism the

particular purpose claimed.” Id. (quoting Pratt, 673 F.2d at

418). That said, it is not evident that the Pratt formulation

adds all that much to the statutory text. What we must

initially do in any Exemption 7 case is assess whether the

document in question was compiled for law enforcement

purposes.

PEER insists that an agency must have some statutory

law enforcement function, in addition to a law enforcement

purpose for the particular records at issue, before the agency

can invoke Exemption 7. And PEER claims that the U.S.

Section does not have a law enforcement function. That

argument is wrong both on the law and on the facts.

On the law: Under the text of Exemption 7, the withheld

record must have been compiled for law enforcement

purposes; the withholding agency need not have statutory law

enforcement functions. See 5 U.S.C. § 552(b)(7). Congress

knew how to delimit a FOIA provision based on the functions

of the agency involved. See id. § 552(b)(7)(D) (referring to

records or information compiled by “criminal law

enforcement authority”). It chose not to do so here.

And on the facts: The U.S. Section does perform a law

enforcement function. The U.S. Section is a part of the

Interagency Committee on Dam Safety, which has the

statutory duty to establish programs and policies to “enhance

dam safety for the protection of human life and property.” 33

13

U.S.C. § 467e. That duty necessarily encompasses security

and prevention of criminal or terrorist attacks.

So on both the law and the facts, we reject the “agency

function” argument advanced by PEER. In light of the

statutory language, we focus instead on whether the

emergency action plans and the inundation maps were

compiled for law enforcement purposes.

The emergency action plans plainly were created for law

enforcement purposes; they describe the security precautions

that law enforcement personnel should implement around the

dams during emergency conditions. On the facts of this case,

it is also apparent that the inundation maps serve security

purposes – namely, to assist law enforcement personnel in

maintaining order and security during emergency conditions,

and to help prevent attacks on dams from occurring in the first

place. “Crime prevention and security measures are critical to

effective law enforcement as we know it.” Milner, 131 S. Ct.

at 1272 (Alito, J., concurring). In this context, preventing

dam attacks and maintaining order and ensuring dam security

during dam emergencies qualify as valid law enforcement

purposes under the statute. Because the emergency action

plans and the inundation maps were created in order to help

achieve those purposes, among others, they were “compiled

for law enforcement purposes.”

In short, the emergency action plans and the inundation

maps readily satisfy Exemption 7’s threshold “compiled for

law enforcement purposes” requirement.

B

Having concluded that the records meet the threshold

requirement of Exemption 7, we next address whether the

14

emergency action plans fall within Exemption 7(E) and

whether the inundation maps fall within Exemption 7(F).

1

The U.S. Section asserted Exemption 7(E) to withhold

the emergency action plans. Exemption 7(E) covers

documents that “would disclose techniques and procedures

for law enforcement investigations or prosecutions, or would

disclose guidelines for law enforcement investigations or

prosecutions if such disclosure could reasonably be expected

to risk circumvention of the law.” 5 U.S.C. § 552(b)(7)(E).4

4

Exemption 7(E) covers “techniques and procedures for law

enforcement investigations or prosecutions” as well as “guidelines

for law enforcement investigations or prosecutions.” 5 U.S.C.

§ 552(b)(7)(E) (emphases added). The exemption’s final,

qualifying clause requires that an agency demonstrate that the

disclosure of the records at issue “could reasonably be expected to

risk circumvention of the law.” Id. The “risk circumvention of the

law” requirement clearly applies to records containing “guidelines,”

because the requirement follows directly after the phrase “would

disclose guidelines for law enforcement investigations or

prosecutions.” Id. But courts have disagreed over whether the

requirement also applies to records containing “techniques and

procedures.”

This Court has applied the “risk circumvention of the law”

requirement both to records containing guidelines and to records

containing techniques and procedures. See, e.g., Blackwell v. FBI,

646 F.3d 37, 41-42 (D.C. Cir. 2011). By contrast, the Second

Circuit has held that the requirement applies only to records

containing guidelines. See Allard K. Lowenstein International

Human Rights Project v. Department of Homeland Security, 626

F.3d 678, 681-82 (2d Cir. 2010).

This case involves records containing guidelines, and thus the

“risk circumvention of the law” requirement clearly applies. So

15

Exemption 7(E)’s requirement that disclosure risk

circumvention of the law “sets a relatively low bar for the

agency to justify withholding.” Blackwell v. FBI, 646 F.3d

37, 42 (D.C. Cir. 2011). To clear that relatively low bar, an

agency must demonstrate only that release of a document

might increase the risk “that a law will be violated or that past

violators will escape legal consequences.” Mayer Brown LLP

v. IRS, 562 F.3d 1190, 1193 (D.C. Cir. 2009).

The emergency action plans contain guidelines that

inform emergency personnel how to manage a dam failure at

Amistad Dam or Falcon Dam from “event detection to

termination.” J.A. 62, Declaration of Steven Fitten at ¶ 23,

PEER v. USIBWC, No. 11-cv-00261 (D.D.C. Apr. 11, 2011).

Those guidelines describe the surveillance and detection of

the cause of an emergency dam failure as well as the process

for evaluating the dam failure when the emergency subsides.

The guidelines also set forth the security precautions that law

enforcement personnel should implement around the dams

during emergency conditions. The guidelines therefore

describe how law enforcement personnel might investigate

the cause of a dam failure. And because such investigations

may constitute “law enforcement investigations” when there

is suspicion of criminal sabotage or terrorism, we conclude

that the emergency action plans contain guidelines “for law

enforcement investigations or prosecutions.” 5 U.S.C.

§ 552(b)(7)(E).

As the U.S. Section reasonably explained, disclosing the

emergency action plans also “risks circumvention of the law

this case does not implicate the difference between this Court and

the Second Circuit. And in any event, given the low bar posed by

the “risk circumvention of the law” requirement, it is not clear that

the difference matters much in practice.

16

by those who might seek to exact the greatest amount of

damage against the public affected by a dam failure or flood

event.” J.A. 62, Declaration of Steven Fitten at ¶ 23.

Terrorists or criminals could use the information in the

emergency action plans to thwart rescue operations following

a dam failure or to obstruct attempts to investigate the source

of such a failure. Disclosure of the emergency action plans

would therefore risk circumvention of the law. We uphold

the U.S. Section’s invocation of Exemption 7(E) as to the

emergency action plans.

2

The U.S. Section invoked Exemption 7(F) in order to

withhold the inundation maps. Exemption 7(F) covers

records that, if disclosed, “could reasonably be expected to

endanger the life or physical safety of any individual.” 5

U.S.C. § 552(b)(7)(F). That language is very broad. The

exemption does not require that a particular kind of individual

be at risk of harm; “any individual” will do. Disclosure need

not definitely endanger life or physical safety; a reasonable

expectation of endangerment suffices. Cf. Mayer Brown LLP

v. IRS, 562 F.3d 1190, 1193 (D.C. Cir. 2009) (Exemption

7(E) similarly broad).

“[I]n the FOIA context, we have consistently deferred to

executive affidavits predicting harm to the national security,

and have found it unwise to undertake searching judicial

review.” Center for National Security Studies v. Department

of Justice, 331 F.3d 918, 927 (D.C. Cir. 2003). The

confluence of Exemption 7(F)’s expansive text and our

generally deferential posture when we must assess national

security harms means that, in Exemption 7(F) cases involving

documents relating to critical infrastructure, “it is not difficult

17

to show that disclosure may ‘endanger the life or physical

safety of any individual.’” Milner v. Department of the Navy,

131 S. Ct. 1259, 1272 (2011) (Alito, J., concurring).

Therefore, assuming an agency has met Exemption 7’s

threshold test, it will ordinarily be able to satisfy Exemption

7(F) for documents relating to critical infrastructure, such as

blueprints, maps, and emergency plans.

Here, the inundation maps fall comfortably within

Exemption 7(F). As the U.S. Section explained in its

declaration, disclosing the maps would give anyone seeking

to cause harm “the ability to deduce the zones and populations

most affected by dam failure.” J.A. 61, Declaration of Steven

Fitten at ¶ 22, PEER v. USIBWC, No. 11-cv-00261 (D.D.C.

Apr. 11, 2011). Terrorists or criminals could use that

information to determine whether attacking a dam would be

worthwhile, which dam would provide the most attractive

target, and what the likely effect of a dam break would be.

The record in this case includes an intelligence alert from

the Department of Homeland Security describing an alleged

plot by drug traffickers to blow up Falcon Dam. The alert

states that traffickers warned some local residents to evacuate

in advance of a possible attack on the dam. That record

evidence confirms what common sense suggests: The

inundation maps, if disclosed, could reasonably be expected

to endanger life or physical safety.

To be clear, Exemption 7(F) does not require concrete

evidence in every case. The terms “could” and “expected” in

Exemption 7(F) evince congressional understanding of the

many potential threats posed by the release of sensitive

agency information. An agency therefore need only

demonstrate that it reasonably estimated that sensitive

18

information could be misused for nefarious ends. The U.S.

Section has done so here.

PEER counters that Exemption 7(F) should not be

construed as broadly as its plain text would indicate. As

support, PEER cites the Second Circuit’s decision in ACLU v.

Department of Defense, 543 F.3d 59 (2d Cir. 2008), vacated,

558 U.S. 1042 (2009), which interpreted the term “any

individual” in Exemption 7(F) to require a particularized

threat to a discrete population rather than a diffuse risk to an

amorphous population. But even if we agreed with the

Second Circuit’s reading of Exemption 7(F), the Second

Circuit itself conveyed that a threat to the population living

downstream of a dam would be sufficiently specific to satisfy

the exemption. See id. at 81-82. In this case, the U.S. Section

points to the same kind of potential harm to a similarly

circumscribed population, meaning that the U.S. Section

would prevail even under the Second Circuit’s approach.

In short, the U.S. Section has connected the release of the

inundation maps to a reasonable threat of harm to the

population downstream of the dams. The inundation maps

fall within Exemption 7(F).

***

We vacate and remand the judgment of the District Court

with respect to its holding on Exemption 5 and affirm the

judgment of the District Court with respect to its holdings on

Exemptions 7(E) and 7(F).

So ordered.