Citizens for Responsibility & Ethics in Washington v. United States Department of Justice

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 16, 2014 Decided April 1, 2014

No. 12-5223

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON,

APPELLANT

v.

UNITED STATES DEPARTMENT OF JUSTICE,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:11-cv-00592)

David L. Sobel argued the cause for the appellant.

Melanie T. Sloan and Anne L. Weismann were on brief.

Steve Frank, Attorney, U.S. Department of Justice, argued

the cause for the appellee. Stuart F. Delery, Assistant

Attorney General, Ronald C. Machen Jr., U.S. Attorney, and

Leonard Schaitman, Attorney, were on brief.

Before: HENDERSON, Circuit Judge, and EDWARDS and

SENTELLE, Senior Circuit Judges.

KAREN LECRAFT HENDERSON, Circuit Judge: In 2004,

the Federal Bureau of Investigation (FBI) opened a

wide-ranging public corruption investigation into the activities

2

of former lobbyist Jack Abramoff. The investigation yielded

21 guilty pleas or convictions by jury. Two of those

convicted, Tony Rudy and Michael Scanlon, once served as

senior aides to Tom DeLay—the former Majority Leader of the

United States House of Representatives. During the

multi-year investigation, the FBI never acknowledged whether

DeLay himself was a subject of inquiry. In August 2010,

however, DeLay announced that the United States Department

of Justice (DOJ) had informed him it had decided not to bring

criminal charges against him related to the Abramoff scandal.

Shortly after DeLay’s announcement, Citizens for

Responsibility and Ethics in Washington (CREW) filed a

Freedom of Information Act (FOIA) request seeking various

types of documents related to the FBI’s investigation of

DeLay. After the FBI declined to produce the documents,

CREW filed suit against the DOJ (the agency encompassing

the FBI). The district court granted summary judgment to the

DOJ, concluding that the requested documents were

categorically exempt from disclosure under Exemptions 7(A)

and 7(C) and that, in the alternative, portions of the requested

documents were also exempt under Exemptions 3, 7(D) and

7(E). Citizens for Responsibility & Ethics in Wash. v. Dep’t of

Justice, 870 F. Supp. 2d 70 (D.D.C. 2012). We now reverse

and remand. The DOJ has not met its burden of justifying

categorical withholding under Exemption 7(A) or 7(C) and has

not adequately explained the basis for withholding portions of

the requested documents under Exemptions 3, 7(D) and 7(E).

I

A. Legal Framework

FOIA provides that every government agency, “upon any

request for records which (i) reasonably describes such records

3

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). Certain information is exempt from

disclosure. Of primary relevance here, “records or

information compiled for law enforcement purposes” are

exempt,

but only to the extent that the production of such law

enforcement records or information (A) could

reasonably be expected to interfere with enforcement

proceedings, . . . [or] (C) could reasonably be

expected to constitute an unwarranted invasion of

personal privacy . . . .

Id. § 552(b)(7).

FOIA “was enacted to facilitate public access to

Government documents” and “was designed to ‘pierce the veil

of administrative secrecy and to open agency action to the light

of public scrutiny.’” Dep’t of State v. Ray, 502 U.S. 164, 173

(1991) (quoting Dep’t of Air Force v. Rose, 425 U.S. 352, 361

(1976)). Because of FOIA’s “goal of broad disclosure,” the

Supreme Court has “insisted that the exemptions be ‘given a

narrow compass.’” Milner v. Dep’t of Navy, 131 S. Ct. 1259,

1265 (2011) (quoting Dep’t of Justice v. Tax Analysts, 492

U.S. 136, 151 (1989)); accord FBI v. Abramson, 456 U.S. 615,

630 (1982) (“FOIA exemptions are to be narrowly

construed.”). FOIA’s “limited exemptions do not obscure the

basic policy that disclosure, not secrecy, is the dominant

objective of the Act.” Dep’t of Interior v. Klamath Water

Users Protective Ass’n, 532 U.S. 1, 8 (2001) (quoting Rose,

425 U.S. at 361).

The agency bears the burden of establishing that a claimed

exemption applies. Dep’t of Justice v. Reporters Comm. for

4

Freedom of the Press, 489 U.S. 749, 755 (1989); Elec. Frontier

Found. v. Dep’t of Justice, 739 F.3d 1, 7 (D.C. Cir. 2014); see 5

U.S.C. § 552(a)(4)(B). The agency may carry that burden by

submitting affidavits that “describe the justifications for

nondisclosure with reasonably specific detail, demonstrate that

the information withheld logically falls within the claimed

exemption, and are not controverted by either contrary

evidence in the record nor by evidence of agency bad faith.”

Larson v. Dep’t of State, 565 F.3d 857, 862 (D.C. Cir. 2009)

(quoting Miller v. Casey, 730 F.2d 773, 776 (D.C. Cir. 1984)).

Agency affidavits sometimes take the form of a “Vaughn

index,” see Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973),

but there is “no fixed rule” establishing what such an affidavit

must look like, ACLU v. CIA, 710 F.3d 422, 432 (D.C. Cir.

2013). “[I]t is the function, not the form, of the index that is

important.” Keys v. Dep’t of Justice, 830 F.2d 337, 349 (D.C.

Cir. 1987); see generally Judicial Watch, Inc. v. FDA, 449 F.3d

141, 145–46 (D.C. Cir. 2006) (explaining functions of Vaughn

index).

At times, the FOIA litigation process threatens to reveal

“the very information the agency hopes to protect” and

therefore it may be necessary for the agency affidavit to

contain only “brief or categorical descriptions” of the withheld

information. ACLU, 710 F.3d at 432; see also Judicial Watch,

449 F.3d at 146. In such circumstances, “the government

need not justify its withholdings document-by-document; it

may instead do so category-of-document by

category-of-document, so long as its definitions of relevant

categories are sufficiently distinct to allow a court to determine

whether the specific claimed exemptions are properly applied.”

Gallant v. NLRB, 26 F.3d 168, 173 (D.C. Cir. 1994) (quotation

marks and ellipsis omitted); accord Crooker v. Bureau of

Alcohol, Tobacco & Firearms, 789 F.2d 64, 67 (D.C. Cir.

1986). Categorical treatment, however, may be used “[o]nly

5

when the range of circumstances included in the category

‘characteristically support[s] an inference’ that the statutory

requirements for exemption are satisfied.” Nation Magazine

v. U.S. Customs Serv., 71 F.3d 885, 893 (D.C. Cir. 1995)

(quoting Dep’t of Justice v. Landano, 508 U.S. 165, 177

(1993)); accord Reporters Comm., 489 U.S. at 776

(“[C]ategorical decisions may be appropriate and individual

circumstances disregarded when a case fits into a genus in

which the balance characteristically tips in one direction.”);

Roth v. Dep’t of Justice, 642 F.3d 1161, 1183–84 (D.C. Cir.

2011).

B. Factual and Procedural Background

On October 19, 2010, after DeLay had announced that he

was not going to be criminally charged as a result of the

Abramoff investigation, CREW wrote to the FBI requesting

any witness statements, investigation reports,

prosecution memoranda, and [FBI] 302 reports

related to the FBI’s and DOJ’s investigation of

[DeLay]. This includes, but is not limited to, the

FBI’s and DOJ’s investigation of relationships

between Mr. DeLay and Christine DeLay, Dani

DeLay, Jack Abramoff, Edwin Buckham, Tony Rudy,

Michael Scanlon, Susan Hirshmann, the Alexander

Strategy Group, the National Center for Public Policy

Research, eLottery, Inc., the U.S. Family Network,

Americans for a Republican Majority PAC

(“ARMPAC”), Texans for a Republican Majority

PAC (“TRMPAC”), and/or the Commonwealth of the

Northern Marianas Islands.

Joint Appendix (JA) 51. Three days later, the FBI responded,

stating that, because the requested records involved third

6

parties, they were generally exempt from disclosure and could

not be released absent express authorization from each third

party, proof of the third party’s death or a “clear demonstration

that the public interest in disclosure outweighs the personal

privacy interest and that significant public benefit would result

from the disclosure of the requested records.” JA 107. The

FBI’s response also included the disclaimer—in FOIA terms, a

“Glomar response,” see Military Audit Project v. Casey, 656

F.2d 724 (D.C. Cir. 1981); Phillippi v. CIA, 655 F.2d 1325

(D.C. Cir. 1981)—that the response “should not be considered

an indication of whether or not records responsive to your

request exist in FBI files.” JA 107. After exhausting its

administrative remedies, CREW filed suit against the DOJ in

district court.

The parties cross-moved for summary judgment. In

support of its motion, the DOJ submitted a declaration from

David Hardy, Section Chief of the Record/Information

Dissemination Section, Record Management Division, of the

FBI (“Hardy Declaration” or “Declaration,” reprinted at JA

18–49). The Hardy Declaration recited the FBI’s policy of

issuing a Glomar response to requests for records involving

third parties. However, “[i]n light of the acknowledgment of

a pending lobbying investigation related to Jack Abramoff,” it

“pierced the Glomar veil and admitted the existence of records

potentially responsive to plaintiff’s request.” Hardy Decl. 31–

32. It explained the methodology by which the FBI searched

for responsive documents and identified two categories of

responsive documents located.

The first category includes FD-302s, forms used by FBI

agents “to record information which they obtain through

witness interviews, . . . grand jury subpoenas, proffer

agreements and immunity statements, and from other federal

agencies.” Id. at 19. More specifically,

7

FD-302s contain, in the aggregate, detailed

descriptions of names, addresses, telephone numbers

of witnesses and other third parties, information,

leads, and other valuable investigative information

supplied by various sources and third-parties

interviewed jointly by the FBI and Other Government

Agencies (“OGAs”) during the course of their

investigation. In addition, responsive FD-302s

contain information regarding forensic analysis,

information regarding grand jury proffer and

immunity statements, and information exchanged

between the FBI and OGAs.

Id. at 20. The FBI’s search for responsive documents turned

up an unspecified number of FD-302s dating from June 2004 to

October 2009. The second category of responsive documents,

investigative materials, “includes derivative communications

and reports analyzing the evidence obtained.” Id. at 21. The

Hardy Declaration explained that “[a] derivative

communication . . . describes (verbatim or in summary) the

contents of the original evidentiary record, how it was

obtained, and how it relates to the investigation.” Id. at 21–

22. The Declaration did not specify how many responsive

documents in this category were identified.1

The Hardy Declaration asserted that all responsive

documents were categorically exempt under Exemption 7(A),

see id. at 16–19, 22, and Exemptions 6 and 7(C), see id. at 24–

30. It also invoked Exemptions 2, 3, 7(D) and 7(E) to

1

CREW’s request also sought prosecution memoranda but the

Hardy Declaration stated that no such memoranda were found in the

FBI’s case file. The FBI’s search also turned up responsive public

source documents like newspaper clippings but CREW has not

sought disclosure of this material.

8

withhold portions of the responsive material. Id. at 22–24,

30–31. The Declaration asserted that “due in particular to the

inextricably intertwined and interrelated nature of the

documents at issue here, no information is segregable and

releasable at this time.” Id. at 17; accord id. at 22.

The district court agreed with the DOJ in every respect.

With regard to Exemptions 6 and 7(C), the district court found

that, despite his public acknowledgment of the investigation,

DeLay retained a substantial privacy interest in preventing

disclosure of the contents of the investigative files. Citizens

for Responsibility & Ethics in Wash., 870 F. Supp. 2d at 79–80.

The district court found little countervailing public interest.

Although it “acknowledge[d] that there may be some public

interest in the investigative materials and reports,” it found that

“this minimal public interest does not outweigh the substantial

privacy interests of Mr. DeLay and other third parties in the

contents of the documents.” Id. at 81. It therefore held that

“the ‘balance . . . tips in’ favor of exemption” and the DOJ

“properly categorically withheld the records pursuant to

Exemptions 6 and 7(C).” Id. at 81–82 (quoting Nation

Magazine, 71 F.3d at 893) (omission in district court order).

As for Exemption 7(A), the district court found that “[n]ot

only is the investigation still ongoing . . . , but ‘[t]here are

several outstanding convictions and sentencing proceedings

. . . which have not yet been completed.’” Id. at 82 (quoting

Hardy Decl. 17). It found that disclosure of the requested

records would interfere with those proceedings by identifying

sources, potential witnesses and third parties under

investigation, uncovering the government’s trial strategy and

notifying individuals who remained under investigation. Id.

at 82. Accordingly, it held that categorical withholding was

also appropriate under Exemption 7(A). Id. at 82–83.

9

Finally, the district court accepted the DOJ’s alternative

grounds for withholding portions of the requested records

under Exemptions 2, 3, 7(D) and 7(E). See id. at 83

(Exemption 2, internal FBI telephone and fax numbers), 83–84

(Exemption 3, certain grand jury materials), 84–85 (Exemption

7(D), identities of confidential informants and information that

could reveal their identities), 85 (Exemption 7(E), information

that would reveal law enforcement procedures and techniques).

CREW timely appealed.

II

We review de novo the district court’s grant of summary

judgment. Pub. Emps. for Envtl. Responsibility v. U.S.

Section, Int’l Boundary & Water Comm’n, U.S.-Mex., 740 F.3d

195, 200 (D.C. Cir. 2014). We first address the DOJ’s

categorical withholding claims under Exemptions 7(C) and

7(A), then briefly address the DOJ’s claims under Exemptions

3, 7(D) and 7(E).

A. Exemption 7(C)

As noted, FOIA exempts from 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

constitute an unwarranted invasion of personal privacy.” 5

U.S.C. § 552(b)(7)(C). CREW does not dispute that the

requested records were “compiled for law enforcement

purposes.” Our task, then, is “to balance the [] privacy

interest against the public interest in disclosure.” Nat’l

10

Archives & Records Admin. v. Favish, 541 U.S. 157, 171

(2004); accord Reporters Comm., 489 U.S. at 776.2

Privacy Interest: DeLay has two potential privacy

interests at stake. The first is his interest in avoiding the

stigma of having his name associated with a criminal

investigation. “[I]ndividuals have an obvious privacy interest

cognizable under Exemption 7(C) in keeping secret the fact

that they were subjects of a law enforcement investigation.”

Nation Magazine, 71 F.3d at 894; see also People for the

Ethical Treatment of Animals (PETA) v. Nat’l Insts. of Health,

No. 12-5183, 2014 WL 982875, at *4 (D.C. Cir. Mar. 14,

2014); Schrecker v. Dep’t of Justice, 349 F.3d 657, 666 (D.C.

Cir. 2003); Fitzgibbon v. CIA, 911 F.2d 755, 767 (D.C. Cir.

1990). If a FOIA request is made for FBI investigative

records regarding a particular individual, the FBI’s mere

acknowledgment that it possesses responsive records

associates the individual named in the request with suspected

criminal activity and therefore a Glomar response may be

appropriate. See Nation Magazine, 71 F.3d at 893 (collecting

cases); see also PETA, 2014 WL 982875, at *3. The FBI

evidently believed this was such a case when it initially issued

a Glomar response to CREW’s request. A Glomar response,

however, is “permitted only when confirming or denying the

existence of records would itself ‘cause harm cognizable under

an FOIA exception.’” Roth, 642 F.3d at 1178 (quoting Wolf v.

CIA, 473 F.3d 370, 374 (D.C. Cir. 2007)) (additional quotation

marks omitted). In August 2010, DeLay made public

2

Similarly, Exemption 6 applies to “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). We focus here on Exemption 7(C) because it provides

broader privacy protection than Exemption 6 and thus “establishes a

lower bar for withholding material.” ACLU, 655 F.3d at 6; see

Favish, 541 U.S. at 165–66; Reporters Comm., 489 U.S. at 756.

11

statements confirming the fact that he had been, but was no

longer, under investigation. He explained the extent of his

cooperation with the investigation and announced the DOJ had

decided not to charge him. DeLay’s obvious privacy interest

in keeping secret the fact that he was the subject of an FBI

investigation was diminished by his well-publicized

announcement of that very fact. See Kimberlin v. Dep’t of

Justice, 139 F.3d 944, 949 (D.C. Cir. 1998) (prosecutor’s

public acknowledgment that he was subject of disciplinary

proceedings “undoubtedly does diminish his interest in

privacy: the public already knows who he is, what he was

accused of, and that he received a relatively mild sanction”);

Nation Magazine, 71 F.3d at 896 (politician waived right to

have his name redacted from responsive documents regarding

events he publicly discussed); cf. ACLU v. CIA, 710 F.3d 422,

428–32 (D.C. Cir. 2013) (Glomar response inappropriate

where CIA sought to prevent disclosure of whether it had

intelligence interest in drone strikes but its official public

statements had made clear its interest). Because DeLay’s

public statements confirmed he had been under investigation,

the FBI’s acknowledgment that it had responsive records

would not itself cause harm by confirming that fact, rendering

a Glomar response inappropriate. The FBI apparently came

to that conclusion itself when it “pierced the Glomar veil and

admitted the existence of records potentially responsive to

plaintiff’s request.” Hardy Decl. 31–32.

Although DeLay’s action lessened his interest in keeping

secret the fact that he was under investigation, he retained a

second, distinct privacy interest in the contents of the

investigative files. We made that clear in Kimberlin, noting

that, although a prosecutor who had publicly acknowledged he

was the subject of a disciplinary investigation retained little

privacy interest in keeping the fact of the investigation secret,

he “did not, merely by acknowledging the investigation and

12

making a vague reference to its conclusion, waive all his

interest in keeping the contents of the [disciplinary] file

confidential.” 139 F.3d at 949; cf. Ray, 502 U.S. at 175–76

(although disclosure of interview summaries containing highly

personal information constitutes only de minimis invasion of

privacy if identities of interviewees are unknown, “the

invasion of privacy becomes significant when the personal

information is linked to particular interviewees”). CREW

does not dispute that DeLay retains some privacy interest in the

particulars of the investigation but instead contends that such

interest is not sufficient to support categorical withholding.

See Reply Br. of Appellant 11–12, No. 12-5223 (D.C. Cir. June

17, 2013). And although DeLay, as a public official at the

time, “may have a somewhat diminished privacy interest,”

public officials “‘do not surrender all rights to personal privacy

when they accept a public appointment.’” Quinon v. FBI, 86

F.3d 1222, 1230 (D.C. Cir. 1996) (quoting Bast v. Dep’t of

Justice, 665 F.2d 1251, 1255 (D.C. Cir. 1981)); see also

Kimberlin, 139 F.3d at 949; Fund for Const. Gov’t v. Nat’l

Archives & Records Serv., 656 F.2d 856, 865 (D.C. Cir. 1981).

DeLay’s privacy interest in the contents of the investigative

files is not insubstantial.3

Public Interest: On the other side of the scale sits a

weighty public interest in shining a light on the FBI’s

investigation of major political corruption and the DOJ’s

3

DeLay is not the only one with a privacy interest in the

contents of the investigative files. Other third parties may be

mentioned therein, including many of the other individuals listed in

CREW’s FOIA request. They have a substantial privacy interest in

preventing disclosure of their names in law enforcement files. See

Nation Magazine, 71 F.3d at 894; Fitzgibbon, 911 F.2d at 767. The

same is true of witnesses, informants and investigating agents who

may also be mentioned. See Favish, 541 U.S. at 166; Roth, 642

F.3d at 1174; Schrecker, 349 F.3d at 666.

13

ultimate decision not to prosecute a prominent member of the

Congress for any involvement he may have had. “[T]he only

relevant public interest in the FOIA 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.’” Dep’t of Def. v. FLRA, 510 U.S. 487, 497 (1994)

(quoting Reporters Comm., 489 U.S. at 773); accord Bibles v.

Or. Natural Desert Ass’n, 519 U.S. 355, 355–56 (1997) (per

curiam). That is, the relevant public interest is not to find out

what DeLay himself was “up to” but rather how the FBI and

the DOJ carried out their respective statutory duties to

investigate and prosecute criminal conduct. See Quinon, 86

F.3d at 1231.

The DOJ contends that CREW has posited no public

interest and therefore categorical withholding is appropriate

because “[s]omething . . . outweighs nothing every time.” Br.

of Appellee 10, No. 12-5223 (D.C. Cir. May 15, 2013)

(quoting Nat’l Ass’n of Retired Fed. Emps. v. Horner, 879 F.2d

873, 879 (D.C. Cir. 1989)). But there is considerably more

than nothing on the public interest side of the scale.

“[M]atters of substantive law enforcement policy . . . are

properly the subject of public concern,” Reporters Comm., 489

U.S. at 766 n.18, and disclosure of the requested records would

likely reveal a great deal about law enforcement policy, see

Favish, 541 U.S. at 172 (in addition to significant public

interest, requester must “show the information is likely to

advance that interest”). Disclosure of the FD-302s and

investigative materials could shed light on how the FBI and the

DOJ handle the investigation and prosecution of crimes that

undermine the very foundation of our government. As the

DOJ itself explained, the requested records relate to “a

wide-ranging public corruption investigation as part of [the

FBI’s] ongoing efforts to root out systemic corruption within

14

the highest levels of government.” Hardy Decl. 12.

Disclosure of the records would likely reveal much about the

diligence of the FBI’s investigation and the DOJ’s exercise of

its prosecutorial discretion: whether the government had the

evidence but nevertheless pulled its punches. Indeed, we have

repeatedly recognized a public interest in the manner in which

the DOJ carries out substantive law enforcement policy

(whether or not that interest outweighs any privacy interest at

stake in a given case). See, e.g., ACLU, 655 F.3d at 12–13

(public interest in DOJ’s use of and justification for

warrantless cell phone tracking); Kimberlin, 139 F.3d at 948–

49 (public interest in DOJ disciplinary proceedings);

Dunkelberger v. Dep’t of Justice, 906 F.2d 779, 781 (D.C. Cir.

1990) (public interest both in whether FBI agent participated in

scheme to entrap public official and in manner in which agent

was disciplined); Bast, 665 F.2d at 1255 (public interest in

DOJ decision not to prosecute federal judge for alleged

misconduct); see also Ray, 502 U.S. at 178 (public interest in

“knowing whether the State Department has adequately

monitored Haiti’s compliance with its promise not to prosecute

returnees”); PETA, 2014 WL 982875, at *6, *8 (public interest

in how National Institutes of Health decides whether to

investigate complaints of animal abuse and misappropriation

of research funds and how it conducts investigations); Multi Ag

Media LLC v. Dep’t of Agric., 515 F.3d 1224, 1232 (D.C. Cir.

2008) (public interest in determining whether Department of

Agriculture “is catching cheaters and lawfully administering

its subsidy and benefit programs”); Stern v. FBI, 737 F.2d 84,

92 (D.C. Cir. 1984) (recognizing, in dicta, public interest “in

knowing that a government investigation itself is

comprehensive”).

That the investigation implicated a public official as

prominent as the former Majority Leader of the House of

Representatives further raises the stakes. See Kimberlin, 139

15

F.3d at 949 (court may consider “the rank of the public official

involved and the seriousness of the misconduct alleged” in

conducting Exemption 7(C) balancing); see also Jefferson v.

Dep’t of Justice, 284 F.3d 172, 180 (D.C. Cir. 2002); Beck v.

Dep’t of Justice, 997 F.2d 1489, 1493 (D.C. Cir. 1993); Stern,

737 F.2d at 93–94. Although the DOJ’s actions in this case

may reflect only one data point regarding the performance of

its statutory duties, cf. Boyd v. Dep’t of Justice, 475 F.3d 381,

388 (D.C. Cir. 2007), it is a significant one: It may show

whether prominent and influential public officials are

subjected to the same investigative scrutiny and prosecutorial

zeal as local aldermen and little-known lobbyists. We do not

accept the DOJ’s contention that there is no public interest in

examining the FBI’s investigation of, and the DOJ’s decision

not to charge, the former House Majority Leader for his alleged

involvement in one of the most significant political corruption

scandals in recent memory.

The DOJ’s arguments to the contrary are unpersuasive.

First, it contends that “the identity of individuals who appear in

law enforcement files would virtually never be ‘very probative

of an agency’s behavior or performance’ and would serve a

significant public interest only if ‘there is compelling evidence

that the agency . . . is engaged in illegal activity.’” Br. of

Appellee 35 (quoting SafeCard Servs., Inc., v. SEC, 926 F.2d

1197, 1206 (D.C. Cir. 1991)). As we have explained,

however, SafeCard “is one in a long line of FOIA cases

holding that disclosure of the identities of private citizens

mentioned in law enforcement files constitutes an unwarranted

invasion of privacy.” Nation Magazine, 71 F.3d at 896

(emphasis in original) (collecting such cases). Here, however,

the DOJ does not seek to withhold only the identities of private

citizens; it seeks to withhold every responsive document in

toto. Although SafeCard may authorize the redaction of the

names and identifying information of private citizens

16

mentioned in law enforcement files, it does not permit an

agency “to exempt from disclosure all of the material in an

investigatory record solely on the grounds that the record

includes some information which identifies a private citizen or

provides that person’s name and address.” Id.; see also

Schrecker, 349 F.3d at 666 (explaining that SafeCard rule

applies to names and identifying information); Mays v. DEA,

234 F.3d 1324, 1328 (D.C. Cir. 2000) (investigative details is

“a category presumably distinct from, and potentially far

broader than” personal information).

Next, the DOJ leans on the United States Supreme Court’s

decision in Favish, which held that, if an Exemption 7(C)

privacy interest exists, “the usual rule that the citizen need not

offer a reason for requesting the information [is] inapplicable”

and therefore “the exemption requires the person requesting

the information to establish a sufficient reason for the

disclosure.” 541 U.S. at 172. Accordingly, in cases where

“the public interest being asserted is to show that responsible

officials acted negligently or otherwise improperly in the

performance of their duties, the requester must establish more

than a bare suspicion in order to obtain disclosure.” Id. at 174.

Favish was such a case, see id. at 160–61, 173, but this is not.

CREW alleges no impropriety on the part of the FBI or the

DOJ; 4 it has nonetheless established a sufficient reason for

4

At argument, counsel for the DOJ suggested that CREW

seeks disclosure not to further the purposes of FOIA but rather to

smear DeLay on its website. Recording of Argument 21:01 (D.C.

Cir. Jan. 16, 2014). That accusation does not affect our inquiry:

“[W]hether disclosure of a private document under Exemption 7(C)

is warranted must turn on the nature of the requested document and

its relationship to ‘the basic purpose of [FOIA] to open agency action

to the light of public scrutiny,’ rather than on the particular purpose

for which the document is being requested.” Reporters Comm., 489

U.S. at 772 (quoting Rose, 425 U.S. at 372) (additional quotation

17

disclosure independent of any impropriety: “‘[M]atters of

substantive law enforcement policy are properly the subject of

public concern,’ whether or not the policy in question is

lawful.” ACLU, 655 F.3d at 14 (quoting Reporters Comm.,

489 U.S. 766 n.18) (ellipsis omitted).5 Whether government

impropriety might be exposed in the process is beside the

point. See id. (“Whether the government’s [] policy is legal or

illegal, proper or improper, is irrelevant to this case.”). There

is, then, a significant public interest to be weighed.

Balancing: The DOJ contends—and the district court

agreed—that the balance categorically tips in favor of

non-disclosure. We think, however, that the district court

drastically understated the public interest when it

“acknowledge[d] that there may be some . . . minimal public

interest” at stake. Citizens for Responsibility & Ethics in

Wash., 870 F. Supp. 2d at 81. As the foregoing discussion

demonstrates, there are substantial interests on both sides of the

scale. Yet a categorical approach is appropriate only if “a

marks omitted); accord Bibles, 519 U.S. at 355–56. “In other

words, the public interest side of the balance is not a function of the

identity of the requester . . . .” Pub. Citizen Health Research Grp. v.

FDA, 185 F.3d 898, 904 (D.C. Cir. 1999); see also Multi Ag Media

LLC, 515 F.3d at 1231 n.2 (“Although [the requester] may not want

the information to check up on the government itself, the use for

which the requestor seeks the information is not relevant for

purposes of determining the public interest under FOIA Exemption

6.”).

5

Even Favish recognized as “significant the asserted public

interest in uncovering deficiencies or misfeasance in the

Government’s investigations.” 541 U.S. at 173. It simply held

that the requester had not made a sufficient showing to substantiate

his claim of impropriety. Id. at 175. In contrast, CREW has made

a sufficient showing to establish the public interest in disclosure of

matters of substantive law enforcement policy.

18

case fits into a genus in which the balance characteristically

tips in one direction.” Reporters Comm., 489 U.S. at 776

(emphasis added); accord Landano, 508 U.S. at 177; Roth, 642

F.3d at 1183–84; Nation Magazine, 71 F.3d at 893. In

Kimberlin, we considered whether a categorical approach was

appropriate where the interests to be balanced were a

prosecutor’s right to privacy regarding the substance of

disciplinary proceedings against him and the public interest in

examining the DOJ’s internal disciplinary process. 139 F.3d

at 948–49. In light of the parties’ apparent agreement that a

categorical approach was inappropriate, we stated that “we

may assume for purposes of this opinion that the balance of

interests relating to the disclosure of material in [a disciplinary]

file will not so often tip toward withholding that a categorical

rule against disclosure is appropriate.” Id. at 948–49. We

endorsed a “case-by-case balancing” approach that considers

“the rank of the public official involved and the seriousness of

the misconduct alleged.” Id. at 949. We think a similar

approach should be followed here. The privacy interests in

the two cases are comparable and the public interest here is

even stronger. Information about the FBI’s and the DOJ’s

investigation of major, wide-ranging public corruption is more

likely to shed light on how the agencies are performing their

statutory duties than a discrete internal disciplinary

proceeding. Although a substantial privacy interest is at stake

here, in light of the similarly substantial countervailing public

interest, the balance does not characteristically tip in favor of

non-disclosure.

We do not hold that the requested information is not

exempt under Exemption 7(C). We simply hold that a

categorical rule is inappropriate here. As CREW

acknowledged at argument, it is likely that some of the

requested information ultimately will be exempt from

disclosure. Recording of Argument 23:15. For instance, the

19

names and identifying information of third parties contained in

investigative files are presumptively exempt. Schrecker, 349

F.3d at 666; SafeCard, 926 F.2d at 1206. Much of the

information sought might also be withheld under one of the

exemptions discussed infra. But that does not justify the

blanket withholding of all responsive documents. Nation

Magazine, 71 F.3d at 896. On remand, the DOJ must attempt

to make a more particularized showing as to what documents

or portions thereof are exempt. The district court must then

weigh what information may be withheld under Exemption

7(C) and whether any information is reasonably segregable and

may be disclosed.

B. Exemption 7(A)

FOIA also exempts from disclosure “records or

information compiled for law enforcement purposes, but only

to the extent that the production of such law enforcement

records or information (A) could reasonably be expected to

interfere with enforcement proceedings.” 5 U.S.C.

§ 552(b)(7)(A). Exemption 7(A) reflects the Congress’s

recognition that “law enforcement agencies ha[ve] legitimate

needs to keep certain records confidential, lest the agencies be

hindered in their investigations or placed at a disadvantage

when it [comes] time to present their case.” NLRB v. Robbins

Tire & Rubber Co., 437 U.S. 214, 224 (1978). As earlier

noted, there is no dispute that the requested records were

compiled for law enforcement purposes. To justify

withholding, the DOJ must therefore demonstrate that

“disclosure (1) could reasonably be expected to interfere with

(2) enforcement proceedings that are (3) pending or reasonably

anticipated.” Mapother v. Dep’t of Justice, 3 F.3d 1533, 1540

(D.C. Cir. 1993) (emphasis omitted).

20

The DOJ identifies the relevant enforcement proceedings

as follows:

There are several outstanding convictions and

sentencing proceedings in the lobbying investigation

related to Abramoff and others which have not yet

been completed. These include, but are not limited

to, the sentencing hearings of Tony Rudy, Todd

Boulanger and Kevin Ring. At least until the

above-described cases and all related criminal

investigations are completed, the FBI will consider

the documents responsive to plaintiff’s request to be

in an open and pending status, as premature release of

any of this information would have a harmful effect

on these pending matters, which will be described in

further detail below.

Hardy Decl. 17 (footnote omitted). The Declaration goes on

to explain how disclosure of the requested records would

interfere with these proceedings: revealing the identities of

potential witnesses and subjecting them to harassment,

disclosing direct and circumstantial evidence, identifying third

parties also under investigation and uncovering the

government’s trial strategy. See id. at 18. We take the DOJ

to be relying on two types of enforcement proceedings: (1)

the specifically-invoked “sentencing hearings of Tony Rudy,

Todd Boulanger and Kevin Ring” and (2) “all related criminal

investigations.” We address each type of proceeding in turn.

The first set of proceedings does not justify withholding

because the sentencing hearings—and appeals—of Rudy,

Boulanger and Ring are no longer “pending or reasonably

anticipated.” Exemption 7(A) is temporal in nature. Robbins

Tire, 437 U.S. at 230–32; see also North v. Walsh, 881 F.2d

1088, 1100 (D.C. Cir. 1989) (“Disclosure of the information

21

[the requester] seeks cannot interfere with parts of the

enforcement proceeding already concluded.”). We therefore

“require a law enforcement agency invoking the exception to

show that the material withheld ‘relates to a concrete

prospective law enforcement proceeding.’” Juarez v. Dep’t of

Justice, 518 F.3d 54, 58 (D.C. Cir. 2008) (quoting Bevis v.

Dep’t of State, 801 F.2d 1386, 1389 (D.C. Cir. 1986)). The

proceeding must remain pending at the time of our decision,

not only at the time of the initial FOIA request. Sussman v.

U.S. Marshals Serv., 494 F.3d 1106, 1115 (D.C. Cir. 2007).

Thus, reliance on Exemption 7(A) may become outdated when

the proceeding at issue comes to a close. See Coastal States

Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 870 (D.C. Cir.

1980) (“There is no reason to protect yellowing documents

contained in long-closed files.”); see also August v. FBI, 328

F.3d 697, 698 (D.C. Cir. 2003); Maydak v. Dep’t of Justice,

218 F.3d 760, 763–64 (D.C. Cir. 2000); Senate of Puerto Rico

v. Dep’t of Justice, 823 F.2d 574, 580–81 (D.C. Cir. 1987).

Since the DOJ filed its Declaration in August 2011, Rudy,

Boulanger and Ring have all been sentenced. See United

States v. Rudy, No. 06-cr-00082-ESH (D.D.C. April 20, 2012);

United States v. Boulanger, No. 09-cr-00025-RWR (D.D.C.

Oct. 14, 2011); United States v. Ring, 08-cr-00274-ESH

(D.D.C. Oct. 26, 2011). Only Ring appealed and this Court

affirmed his conviction more than one year ago. See United

States v. Ring, 706 F.3d 460 (D.C. Cir. Jan. 25, 2013). The

cases are closed—not pending or contemplated—and therefore

are not proceedings with which disclosure may interfere. See

Robbins Tire, 437 U.S. at 232; North, 881 F.2d at 1100.6

6

When asked at argument, counsel for the DOJ raised for the

first time one other proceeding: Fraser Verrusio’s appeal of his

February 10, 2011 conviction on charges stemming from the

Abramoff investigation, the appeal of which remains pending in this

Court. See United States v. Verrusio, No. 11-3080 (argued Nov. 12,

22

The second type of proceeding, ongoing at least in August

2011, consists of “all related criminal investigations.” Hardy

Decl. 17; see also id. at 13 (referring to “continuing large

public corruption investigation”). The district court cited that

language in finding that “the investigation [is] still ongoing.”

Citizens for Responsibility in Wash., 870 F. Supp. 2d at 82, and

the DOJ makes passing reference to the district court’s finding

in its brief, Br. of Appellees 49. To be sure, an ongoing

criminal investigation typically triggers Exemption 7(A):

“[S]o 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.” Juarez, 518 F.3d at 59; see also

Sussman, 494 F.3d at 1114 (“The enforcement proceedings

need not be currently ongoing; it suffices for them to be

reasonably anticipated.” (quotation marks omitted)). But a

combination of factors leaves us with considerable uncertainty

about whether a criminal investigation in fact continues to this

day. The first is the vague nature of the DOJ’s mention of

ongoing investigations, especially when coupled with its

reliance on other specifically enumerated proceedings. The

second is the passage of time: It has been over 30 months

2013). The DOJ’s Declaration does not reference this proceeding

even though Verrusio had been convicted six months, and was

sentenced three weeks, before the Declaration was filed. See

United States v. Verrusio, No. 09-cr-00064-RWR. Moreover, the

DOJ neglected to mention the Verrusio appeal when it filed its brief

in this Court even though by that time the Rudy, Boulanger and Ring

proceedings had all come to a close. See Br. of Appellees (D.C. Cir.

May 15, 2013). The DOJ has therefore forfeited the argument.

See Roth, 642 F.3d at 1181 (contention raised for first time at oral

argument is forfeited); cf. Maydak, 218 F.3d at 764–68 (discussing

general rule that agency must assert all exemptions in district court

proceeding and limited exceptions thereto).

23

since the DOJ filed its Declaration and many more since the

events underlying the investigation took place. Third, when

asked at argument about ongoing proceedings, counsel cited

only the Verrusio appeal, no ongoing investigation.

Recording of Argument 10:04.

Categorical withholding is often appropriate under

Exemption 7(A). Robbins Tire, 437 U.S. at 236 (“Congress

did not intend to prevent the federal courts from determining

that, with respect to particular kinds of enforcement

proceedings, disclosure of particular kinds of investigatory

records while a case is pending would generally ‘interfere with

enforcement proceedings.’”). In such a case, an agency may

satisfy its burden of proof “by grouping documents in

categories and offering generic reasons for withholding the

documents in each category.” Maydak, 218 F.3d at 765. We

have held, however, that

if it wishes to adopt the generic approach, [an agency]

has a three-fold task. First, it must define its

categories functionally. Second, it must conduct a

document-by-document review in order to assign

documents to the proper category. Finally, it must

explain to the court how the release of each category

would interfere with enforcement proceedings.

Bevis, 801 F.2d at 1389–90. As to the third task, although we

give deference to an agency’s predictive judgment of the harm

that will result from disclosure of information, see Ctr. for

Nat’l Sec. Studies v. Dep’t of Justice, 331 F.3d 918, 927–28

(D.C. Cir. 2003), it is not sufficient for the agency to simply

assert that disclosure will interfere with enforcement

proceedings; “it must rather demonstrate how disclosure” will

do so. Sussman, 494 F.3d at 1114; see Campbell v. Dep’t of

24

Health & Human Servs., 682 F.2d 256, 265 (D.C. Cir. 1982).

The DOJ has made no such demonstration here.

The DOJ explains that, in August 2011, there was a

wide-ranging public corruption investigation pending and that

the release of the requested records could disclose to

individuals under investigation the identities of potential

witnesses, the content of the government’s evidence and trial

strategy and the focus of the investigation. Hardy Decl. 16,

18–19. We have often found that similar concerns justify

withholding under Exemption 7(A). In the typical case,

however, the requested records relate to a specific individual or

entity that is the subject of the ongoing investigation, making

the likelihood of interference readily apparent. See, e.g.,

Juarez, 518 F.3d at 58; Swan v. SEC, 96 F.3d 498, 499 (D.C.

Cir. 1996); Alyeska Pipeline Serv. Co. v. EPA, 856 F.2d 309,

312 (D.C Cir. 1988); see also Boyd, 475 F.3d at 386

(documents relating to requester Boyd exempt where

disclosure would reveal details of ongoing investigation of

individuals “related to, controlled by, or influenced by Boyd”

(alterations omitted)). Here, by contrast, the documents

requested relate to DeLay, who is no longer under

investigation; he was told more than three years ago that he

would not be charged. Thus, assuming some individuals do

remain under investigation, the relevant question is whether

any of the responsive records, which are primarily about

DeLay, would disclose anything relevant to the investigation

of those individuals. Given the “intertwined and interrelated

nature of the documents at issue,” Hardy Decl. 17, the answer

may well be yes. But without more information about the

degree of overlap, we cannot say that the circumstances

“‘characteristically support an inference’” that disclosure

would interfere with any pending enforcement proceeding.

Nation Magazine, 71 F.3d at 893 (quoting Landano, 508 U.S.

at 177) (alteration omitted); see also Mapother, 3 F.3d at

25

1542–43 (recognizing potential for interference similar to that

described here but nevertheless remanding for district court to

review documents and decide in first instance whether

disclosure would prejudice government’s case).

Moreover, although the DOJ identifies two distinct

categories of documents—FD-302s and investigative

materials—it never explains how the specific risks entailed in

premature disclosure of one category of document might differ

from risk of disclosure of the other. See Campbell, 682 F.2d

at 263–64 (“If a direct relationship between an active

investigation and withheld information constituted a sufficient

predicate for the invocation of Exemption 7(A), the Court in

Robbins Tire would not have examined the special risks

entailed in premature disclosure of statements of prospective

witnesses in NLRB proceedings, the particular kind of records

at issue in that case.”); see also Robbins Tire, 437 U.S. at 236

(“Exemption 7 was designed to eliminate ‘blanket exemptions’

for Government records simply because they were found in

investigatory files . . . .”). Without more “specific information

about the impact of the disclosures,” we “cannot determine

that, as a matter of law, disclosure ‘could reasonably be

expected to interfere with enforcement proceedings.’”

Sussman, 494 F.3d at 1114.

For these reasons, the DOJ has not met its burden to

warrant categorical withholding. Once again, we do not hold

that the requested information is not exempt. On remand, the

DOJ must clarify whether a related investigation is in fact

ongoing and, if so, how the disclosure of documents relating to

DeLay would interfere with it. Of course, this is not to say the

DOJ must recite the names of subjects under continuing

investigation or otherwise disclose information that would

jeopardize the investigation. We simply require the DOJ to be

26

more specific about the existence vel non of such an

investigation.

C. Exemptions 3, 7(D) and 7(E)

In the alternative, the DOJ briefly invoked—and the

district court even more briefly approved—withholding a

portion of the requested records under Exemptions 3, 7(D) and

7(E).7 Citizens for Responsibility & Ethics in Wash., 870 F.

Supp. 2d at 83–85. The DOJ’s Declaration, however, lacks

the “reasonably specific detail” required to carry its burden of

establishing that each exemption applies, Larson, 565 F.3d at

862, and fails to “give the reviewing court a reasonable basis to

evaluate the claim of privilege,” Judicial Watch, Inc., 449 F.3d

7

It is unclear from the district court order whether it held that

the DOJ could withhold all responsive records under one of these

exemptions or some combination of them, or whether each applies

only to certain categories of documents. Compare Citizens for

Responsibility & Ethics in Wash., 870 F. Supp. 2d at 83 (“In any

event, I find that defendant can properly withhold the records

pursuant to FOIA Exemptions 2, 3, 7(D), and 7(E).”), and id. at 85

(finding “the information” supplied by confidential sources exempt

under Exemption 7(D) but not specifying whether “the information”

includes all responsive records), with id. at 83 (only internal

telephone and fax numbers exempt under Exemption 2), and id. at 84

(only “information that defendant seeks to withhold pursuant to Rule

6(e)” exempt under Exemption 3). To the extent the district court

held that any of these exemptions categorically exempts all

responsive documents, we think that holding was error. For the

reasons discussed infra, the DOJ has not met its burden of

demonstrating that the circumstances “‘characteristically support an

inference’” that Exemption 3, 7(D) or 7(E) applies. Nation

Magazine, 71 F.3d at 893 (quoting Landano, 508 U.S. at 177)

(alteration omitted). CREW does not challenge the district court’s

holding regarding the FBI’s invocation of Exemption 2, which was

expressly limited to internal FBI telephone and fax numbers.

27

at 146 (quoting Gallant, 26 F.3d at 172–73). The Declaration

never specifies how many responsive documents exist and

makes no attempt to link each exemption to specific

documents. Moreover, the explanation for the applicability of

each exemption is inadequate. To aid the parties—and district

court—on remand, we briefly highlight the shortcomings of

the record before us.

Exemption 3: FOIA exempts matters “specifically

exempted from disclosure by statute,” 5 U.S.C. § 552(b)(3),

including a disclosure violative of Federal Rule of Criminal

Procedure 6(e), which provides for the secrecy of grand jury

proceedings. See Stolt-Nielsen Transp. Grp. Ltd. v. United

States, 534 F.3d 728, 732 (D.C. Cir. 2008); Fund for Const.

Gov’t, 656 F.2d at 867–68. “Rule 6(e) applies if the disclosed

material would ‘tend to reveal some secret aspect of the grand

jury’s investigation,’ including ‘the identities of witnesses or

jurors, the substance of testimony, the strategy or direction of

the investigation,’ or ‘the deliberations or questions of jurors.’”

Hodge v. FBI, 703 F.3d 575, 580 (D.C. Cir. 2013) (quoting

Senate of Puerto Rico, 823 F.2d at 582). The DOJ cites

Exemption 3 to withhold “the names of potential grand jury

witnesses and interview statements pertaining to signed proffer

agreements and immunity statements, which could be used as

evidence before a Federal Grand Jury.” Hardy Decl. 24; see

also id. at 20 (“Exemption 3 is asserted to protect information

contained in the FD-302s which identifies specific records that

may be subpoenaed by a Federal Grand Jury.”).

The DOJ bears the burden of “demonstrating some ‘nexus

between disclosure and revelation of a protected aspect of the

grand jury’s investigation.’” Lopez v. Dep’t of Justice, 393

F.3d 1345, 1350 (D.C. Cir. 2005) (quoting Senate of Puerto

Rico, 823 F.2d at 584). But we are told only that the requested

documents contain information that “could be used as evidence

28

before a Federal Grand Jury” or “may be subpoenaed by a

Federal Grand Jury” and therefore that “any such disclosure

would clearly violate the secrecy of the Grand Jury

proceedings.” Hardy Decl. 20, 24 (emphases added). This

conclusory explanation is insufficient. “[T]here is no per se

rule against disclosure of any and all information which has

reached the grand jury chambers,” Lopez, 393 F.3d at 1349, let

alone any and all information which “could” reach the grand

jury, see In re Sealed Case, 192 F.3d 995, 1001–03 (D.C. Cir.

1999) (per curiam); Wash. Post Co. v. Dep’t of Justice, 863

F.2d 96, 100 (D.C. Cir. 1988); see also Stolt-Nielsen Transp.

Grp. Ltd., 534 F.3d at 732 (“[T]he government may not bring

information into the protection of Rule 6(e) and thereby into

the protection afforded by Exemption 3, simply by submitting

it as a grand jury exhibit.”). Although we do not doubt that

some of the requested records may fall under Exemption 3, the

DOJ has not yet supplied sufficient information for a court to

make that determination. Senate of Puerto Rico, 823 F.2d at

584; see Lopez, 393 F.3d at 1349–51.

Exemption 7(D): FOIA also exempts records or

information compiled for law enforcement purposes to the

extent disclosure of such records “could reasonably be

expected to disclose the identity of a confidential source” or

“information furnished by a confidential source.” 5 U.S.C.

§ 552(b)(7)(D). The DOJ cites this exemption to “protect the

identities of, and information received from, individuals who

provided information to the FBI during the course of the . . .

investigation.” Hardy Decl. 21. Unlike Exemption 7(C),

Exemption 7(D) does not require balancing. Roth, 642 F.3d at

1184; Davis v. Dep’t of Justice, 968 F.2d 1276, 1281 (D.C. Cir.

1992). It does, however, require a showing that the source is a

confidential one. See Landano, 508 U.S. at 172 (“[T]he

question is not whether the requested document is of the type

that the agency usually treats as confidential, but whether the

29

particular source spoke with an understanding that the

communication would remain confidential.”). “[I]t is not

enough for the agency to claim that all sources providing

information in the course of a criminal investigation do so on a

confidential basis.” Roth, 642 F.3d at 1184; see Landano, 508

U.S. at 180–81. Yet that is essentially what the DOJ has done

by stating, in the alternative and without specific explanation,

that all of its sources “were interviewed either under express

confidentiality and/or under circumstances from which an

assurance of confidentiality may be implied.” Hardy Decl.

21; see also id. at 30–31 (explaining how informants provide

information during the course of “an investigation,” with no tie

to this investigation). Such boilerplate will not do. See

Billington v. Dep’t of Justice, 233 F.3d 581, 584 (D.C. Cir.

2000) (“This bald assertion that express assurances were given

amounts to little more than recitation of the statutory standard,

which we have held is insufficient.”); Campbell v. Dep’t of

Justice, 164 F.3d 20, 34–35 (D.C. Cir. 1998) (rejecting

assertion that express assurances of confidentiality were given

where declarant demonstrated no basis for knowledge of

alleged fact); Computer Prof’ls for Soc. Responsibility v.

Secret Serv., 72 F.3d 897, 906 (D.C. Cir. 1996) (description of

“the manner in which an agency ‘routinely’ handles

information is not sufficient to establish an implied assurance

of confidentiality as to any particular source”). To invoke

Exemption 7(D) on remand, the DOJ must either “present

probative evidence that the source did in fact receive an

express grant of confidentiality,” Campbell, 164 F.3d at 34

(quotation omitted), or “‘point to more narrowly defined

circumstances that . . . support the inference’ of

confidentiality.” Roth, 642 F.3d at 1184 (quoting Landano,

508 U.S. at 179).

Exemption 7(E): FOIA also exempts records or

information compiled for law enforcement purposes to the

30

extent release of such records “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). The DOJ cites Exemption 7(E) “to

protect procedures and techniques used by FBI [agents] during

the investigation.” Hardy Decl. 21; accord id. at 31. This

near-verbatim recitation of the statutory standard is inadequate.

We are not told what procedures are at stake. (Perhaps how

the FBI conducts witness interviews? Or how it investigates

public corruption?) Nor are we told how disclosure of the

FD-302s or investigative materials could reveal such

procedures. (Are the procedures spelled out in the

documents? Or would the reader be able to extrapolate what

the procedures are from the information contained therein?)

Although Exemption 7(E) sets a “low bar for the agency to

justify withholding,” Blackwell v. FBI, 646 F.3d 37, 42 (D.C.

Cir. 2011), the agency must at least provide some explanation

of what procedures are involved and how they would be

disclosed. See id. (FBI sought to withhold “details about

procedures used during the forensic examination of a computer

by an FBI forensic examiner” (quotation marks omitted));

Mayer Brown LLP v. IRS, 562 F.3d 1190, 1192 (D.C. Cir.

2009) (IRS sought to withhold information setting forth

“settlement strategies and objectives, assessments of litigating

hazards, and acceptable ranges of percentages for settlement”

(quotation marks and alteration omitted)); Morley v. CIA, 508

F.3d 1108, 1128–29 (D.C. Cir. 2007) (CIA sought to withhold

information revealing procedures for conducting security

clearances and background investigations).8

8

Twice the DOJ asserted that disclosure of the requested

records “could enable the targets of these techniques to avoid

detection or develop countermeasures to circumvent the ability of

31

III

The DOJ has not met its burden to justify categorical

withholding under Exemption 7(A) or 7(C). Nor has it

provided sufficient detail at this stage for a court to determine

whether a portion of the requested records may be withheld

under Exemption 3, 7(D) or 7(E). Summary judgment for the

defendant is therefore reversed and the case is remanded for

further proceedings consistent with this opinion.

So ordered.

the FBI to effectively use important law enforcement techniques.”

Hardy Decl. 21, 31. We note some disagreement whether the “risk

of circumvention” requirement applies to records containing

“techniques and procedures” or only to records containing

“guidelines.” See Pub. Emps. for Envtl. Responsibility, 740 F.3d at

204 n.4. We need not pursue that issue, however, because the

antecedent questions of what techniques and procedures are involved

and how they could be disclosed have not been answered

sufficiently.