Labow v. United States Department of Justice

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 10, 2016 Decided August 5, 2016

No. 14-5220

JEFFREY LABOW,

APPELLANT

v.

UNITED STATES DEPARTMENT OF JUSTICE,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:11-cv-01256)

Jeffrey Light argued the cause and filed the briefs for

appellant.

John G. Interrante, Assistant U.S. Attorney, argued the

cause for appellee. With him on the brief was R. Craig

Lawrence, Assistant U.S. Attorney.

Before: HENDERSON, ROGERS and SRINIVASAN, Circuit

Judges.

Opinion for the Court filed by Circuit Judge SRINIVASAN.

2

SRINIVASAN, Circuit Judge: In 2011, appellant Jeffrey

Labow came to learn that he had been identified as an

anarchist extremist by an FBI agent. Labow then submitted a

request to the FBI under the Freedom of Information Act for

any records about himself. Although the FBI released some

responsive records to Labow, it withheld disclosure of, or

redacted information from, other responsive documents, citing

various grounds. The district court upheld the FBI’s

withholdings and redactions in full, and granted summary

judgment in favor of the agency. We agree in some respects

and disagree in others. We therefore affirm in part, reverse in

part, and remand the case for further proceedings.

I.

Because we are reviewing a grant of summary judgment,

“we view the facts in the light most favorable to” Labow.

Chambers v. U.S. Dep’t of Interior, 568 F.3d 998, 1000 (D.C.

Cir. 2009). In 2008, anarchists protesting against the World

Bank and International Monetary Fund vandalized the Four

Seasons hotel in Washington, D.C. The FBI’s Joint Terrorism

Task Force investigated the incident. One of the targets of the

investigation sued the government. In the course of a

deposition in connection with that lawsuit, an FBI agent

mentioned Jeffrey Labow as another known extremist. The

agent refused to answer a question about whether the FBI

maintained a file about Labow because answering might

reveal information about ongoing law enforcement activities.

Based on the agent’s answers in the deposition, Labow

suspected that the FBI maintained records about him.

Labow then filed a request under the Freedom of

Information Act (FOIA) with the FBI, seeking “files,

correspondence, or other records concerning [him]self.” J.A.

26. The FBI initially claimed that it had no responsive

3

records. Labow, after exhausting the administrative appeals

process, then brought this action in district court. He later

amended his complaint to add a request for records about a

person named Lawrence Kuhn, another target of the FBI’s

investigation into the Four Seasons incident.

As Labow’s lawsuit progressed, the FBI found several

hundred pages of records concerning Labow and more than a

thousand pages about Kuhn. The FBI released some of these

records to Labow. With regard to other documents, the FBI

redacted information from them or refused to release them at

all, invoking various statutory exemptions.

The government moved for summary judgment against

Labow on his claims seeking disclosure of the withheld

documents and redacted information. In his opposition,

Labow challenged the government’s reliance on FOIA’s

exemptions, and he also contended that the government had

improperly relied on a statutory exclusion from FOIA’s

coverage. After in camera review of documents submitted ex

parte by the government, the district court rejected Labow’s

arguments and granted the government’s summary judgment

motion in full. Labow now appeals.

II.

We review the district court’s grant of summary

judgment de novo. Pub. Inv’rs Arbitration Bar Ass’n v. SEC,

771 F.3d 1, 3 (D.C. Cir. 2014). We first consider the FBI’s

reliance on various statutory exemptions as the basis for

redacting information from responsive documents or

withholding their release altogether. Our review calls for

“ascertain[ing] whether the agency has sustained its burden of

demonstrating that the documents requested are . . . exempt

from disclosure.” Id. (quoting ACLU v. Dep’t of Justice, 655

4

F.3d 1, 5 (D.C. Cir. 2011)). We take up, in turn, each FOIA

exemption as to which Labow raises a challenge.

A.

We first consider the FBI’s reliance on FOIA Exemption

3 to withhold information associated with a pen register order.

A pen register is a device installed on a phone line to enable

recording the phone numbers dialed on that line.

Exemption 3, in relevant part, provides that FOIA’s

disclosure obligation “does not apply to matters that are . . .

specifically exempted from disclosure by [another] statute,” if

the statute “(i) requires that the matters be withheld from the

public in such a manner as to leave no discretion on the

issue,” or “(ii) establishes particular criteria for withholding

or refers to particular types of matters to be withheld.” 5

U.S.C. § 552(b)(3)(A). In this case, the FBI withheld certain

responsive documents and information about Labow on the

rationale that they were “specifically exempted from

disclosure by statute,” id., i.e., the Pen Register Act, 18

U.S.C. § 3123(d). The district court upheld the FBI’s reliance

on the Pen Register Act under Exemption 3.

When assessing whether a statute “specifically

exempt[s]” matters “from disclosure” for purposes of

Exemption 3, 5 U.S.C. § 552(b)(3), we ask two questions:

“Does the statute meet Exemption 3’s requirements? And

does the information that was withheld fall within that

statute’s coverage?” Newport Aeronautical Sales v. Dep’t of

the Air Force, 684 F.3d 160, 165 (D.C. Cir. 2012). Here, we

affirm the district court as to the first question but reverse and

remand as to the second.

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To address the first question, we look to the terms of the

statute invoked by the government—the Pen Register Act.

That statute provides:

An order authorizing or approving the installation

and use of a pen register or a trap and trace device

shall direct that—

(1) the order be sealed until otherwise ordered by

the court; and

(2) the person owning or leasing the line or other

facility to which the pen register or a trap and

trace device is attached, or applied, or who is

obligated by the order to provide assistance to

the applicant, not disclose the existence of the

pen register or trap and trace device or the

existence of the investigation to the listed

subscriber, or to any other person, unless or

until otherwise ordered by the court.

18 U.S.C. § 3123(d).

That statute fits within Exemption 3 if, as noted, it either

“(i) requires that . . . matters be withheld from the public in

such a manner as to leave no discretion on the issue” or “(ii)

establishes particular criteria for withholding or refers to

particular types of matters to be withheld.” 5 U.S.C.

§ 552(b)(3)(A)(i)-(ii). Because the Pen Register Act satisfies

the latter test, we need not consider the former. The statute

identifies “particular types of matters to be withheld,” 5

U.S.C. § 552(b)(3)(A)(ii), in that it requires the sealing of

“[a]n order authorizing or approving the installation and use

of a pen register or a trap and trace device,” 18 U.S.C.

§ 3123(d). That description is at least as specific as other

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statutes which we have held adequately specify “matters to be

withheld” for purposes of Exemption 3.

For instance, we have held that Title III, another

electronic surveillance statute, is a qualifying statute under

Exemption 3 because it applies to “intercepted

communications,” a category sufficiently “narrow and well-

defined” to implicate the exemption. Lam Lek Chong v. U.S.

Drug Enf’t Admin., 929 F.2d 729, 733 (D.C. Cir. 1991). We

have similarly determined that “proprietary information”

under the Tariff Act is a particular matter for purposes of

Exemption 3. Mudge Rose Guthrie Alexander & Ferdon v.

ITC, 846 F.2d 1527, 1529-31 (D.C. Cir. 1988). We reached

the same conclusion with regard to information “pertaining to

the issuance or refusal of visas” under the Immigration and

Nationality Act. Medina-Hincapie v. Dep’t of State, 700 F.2d

737, 742 (D.C. Cir. 1983). Orders authorizing the installation

or use of a pen register likewise “refer[] to particular types of

matters to be withheld” within the meaning of Exemption 3.

5 U.S.C. § 552(b)(3)(A)(ii).

Because the Pen Register Act is a qualifying statute under

Exemption 3, we next ask whether that statute authorized

withholding the particular information at issue in this case.

See Newport Aeronautical Sales, 684 F.3d at 165. Labow

argues that the Pen Register Act permits the government to

withhold only a sealed pen register order itself. As a result,

he contends, the statute does not justify withholding all

information appearing in (or associated with) a sealed pen

register order, even if the same information is contained in

other responsive records beyond the order. In that event,

Labow submits, because the Pen Register Act would not call

for sealing the other records, Exemption 3 should not shield

those other records from FOIA’s disclosure mandate.

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As a general matter, we agree with Labow’s reading of

the Pen Register Act. By its terms, the statute provides for

sealing of a pen register order itself, not sealing of any and all

information the order may contain even if appearing in other

documents. See 18 U.S.C. § 3132(d)(1). Although the statute

additionally bars disclosures by certain private parties about

the existence of a pen register order in the absence of a court

order allowing disclosure, id. § 3123(d)(2), that limitation

does not apply to the government. As a result, Exemption 3

of FOIA, as regards the Pen Register Act, primarily

authorizes the government to withhold a responsive pen

register order itself, not all information that may be contained

in or associated with a pen register order.

To the extent the statute arguably authorizes withholding

documents other than a pen register order, we have no

occasion to address the issue because we do not know

whether this case involves withholding of any records beyond

a pen register order. The FBI’s chief of records management,

David M. Hardy, describes the withheld material as

information “surrounding FBI [agents] making arrangements

to set up and install a pen register and trap and trace device

during a criminal investigation,” including the “identities and

phone numbers of the individuals subject to pen registers in

this case.” Hardy Decl. ¶ 73 (J.A. 93). Hardy, however, does

not specifically say whether that information was contained in

a pen register order itself, and whether, if so, it also appeared

in other responsive records.

In these circumstances, we conclude that the district court

erred in sustaining the government’s reliance on the Pen

Register Act based solely on Hardy’s declaration. See Labow

v. U.S. Dep’t of Justice, 66 F. Supp. 3d 104, 120 (D.D.C.

2014). We remand for the district court to assess whether the

specific information withheld in this case is protected by the

8

Pen Register Act. If the government withheld information

contained exclusively in a pen register order, the information

would necessarily fall under the Pen Register Act’s

nondisclosure requirements and thus would be shielded under

Exemption 3 (assuming the pen register order remains

sealed). But if the government withheld information found in

other responsive documents on the ground that a pen register

order also contained the same information, the potential

applicability of the Pen Register Statute (and hence of

Exemption 3) would be far less clear. As it currently stands,

we do not know whether this case involves the latter situation,

or, if so, whether there may be some justification for

withholding the information beyond the mere fact that it also

appears in a pen register order.

B.

Labow next challenges the government’s withholding of

records subpoenaed by a grand jury, also under Exemption 3.

This court has already held that Federal Rule of Criminal

Procedure 6(e) is a qualifying statute under Exemption 3.

Fund for Constitutional Gov’t v. Nat’l Archives & Records

Serv., 656 F.2d 856, 868 (D.C. Cir. 1981). Consequently, the

sole question before us is whether the documents withheld

from disclosure fall within Rule 6(e).

Rule 6(e) bars disclosure of “matter[s] occurring before a

grand jury.” Fed. R. Crim. P. 6(e). In this case, the

government withheld “copies of specific records provided to a

federal grand jury in response to federal grand jury

subpoenas” because they “could reveal the inner workings of

a federal grand jury.” Hardy Decl. ¶ 74 (J.A. 94). The district

court found the withholding permissible because releasing the

documents would “reveal the strategy or direction of the

investigation.” Labow, 66 F. Supp. 3d at 121 (alterations

9

omitted) (quoting Senate of P.R. v. U.S. Dep’t of Justice, 823

F.2d 574, 582 (D.C. Cir. 1987)). But the court provided no

explanation of why the records would reveal anything about

the investigation, and without knowing more, we do not think

they necessarily would.

Rule 6(e) does not “draw ‘a veil of secrecy . . . over all

matters occurring in the world that happen to be investigated

by a grand jury.’” Senate of P.R., 823 F.2d at 582 (quoting

SEC v. Dresser Indus. Inc., 628 F.2d 1368, 1382 (D.C. Cir.

1980) (en banc)). Instead, the “touchstone” is whether the

information sought would reveal something about the grand

jury’s identity, investigation, or deliberation. Id. The mere

fact that information has been presented to the grand jury does

not itself permit withholding. Id. at 584.

The government argues that documents subpoenaed by a

grand jury are more revealing than documents merely

presented to a grand jury, because they reveal the direction of

the grand jury’s investigation. If the documents would reveal

to the requester that they had been subpoenaed, we would

agree. See Lopez v. Dep’t of Justice, 393 F.3d 1345, 1349-50

(D.C. Cir. 2005) (allowing withholding of grand jury

subpoenas). But subpoenaed documents would not

necessarily reveal a connection to a grand jury. After all,

Labow did not request documents related to a grand jury; he

sought documents about particular people. The government

revealed the existence of a grand jury by withholding

documents under Rule 6(e).

It is possible that, had the government released the

documents without invoking Exemption 3, Labow would

never have known that any of the documents had been

subpoenaed by a grand jury. Of course, it is also possible that

the documents do somehow reveal that they were subpoenaed

10

by a grand jury. That might be the case, for instance, if the

government’s sole copies of the documents were marked as

grand jury exhibits, or if documents referenced the grand jury

subpoena. On the current record, however, we do not know

whether the documents at issue somehow necessarily evince

their connection to a grand jury, much less do so in a manner

that could not be dealt with through redactions.

The government’s declaration only offers the conclusory

statement that “[a]ny disclosure of this information would

clearly violate the secrecy of the grand jury proceedings and

could reveal the inner workings of a federal grand jury.”

Hardy Decl. ¶ 74 (J.A. 94). The government later clarified

that “documents obtained by the FBI independently of a grand

jury were not withheld pursuant to Exemption 3,” Second

Hardy Decl. ¶ 11 (J.A. 132), but we do not know why

documents obtained through the grand jury’s subpoenas

would necessarily reveal that connection. As in Senate of

Puerto Rico, “[i]t may turn out, in this case, that most, or even

all, of the material withheld pursuant to exemption (b)(3)

cannot be disclosed without compromising the secrecy of a

grand jury’s deliberations. We hold only that the defendants

have not yet supplied the information a court must have in

order to intelligently make that judgment.” 823 F.2d at 584.

The mere fact the documents were subpoenaed fails to justify

withholding under Rule 6(e).

We therefore remand for the district court to consider

whether the release of the documents subpoenaed by the

grand jury would reveal something about the grand jury’s

investigation. Of course, if the documents are now belatedly

released, it might be apparent that they had been subpoenaed

by a grand jury given that the potential connection with a

grand jury is now known. That fact, however, should not bar

disclosure. As we have previously held, the relevant question

11

is whether the documents would have revealed the inner

workings of the grand jury had they been released in response

to the initial FOIA request. See Wash. Post Co. v. U.S. Dep’t

of Justice, 863 F.2d 96, 100 (D.C. Cir. 1988). The district

court therefore should consider whether the documents would

have revealed something about the workings of the grand jury

had they been released with other requested documents.

C.

Labow also contests the FBI’s withholding of

information provided by confidential informants under

Exemption 7(D). That exemption protects “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

disclose the identity of a confidential source.” 5 U.S.C.

§ 552(b)(7). A source counts as confidential “if the source

provided information under an express assurance of

confidentiality or in circumstances from which such an

assurance could reasonably be inferred.” Williams v. FBI, 69

F.3d 1155, 1159 (D.C. Cir. 1995) (quoting U.S. Dep’t of

Justice v. Landano, 508 U.S. 165, 172 (1993)) (internal

quotation marks omitted). The district court permitted

withholdings based on both express and implied assurances of

confidentiality, Labow, 66 F. Supp. 3d at 124-25, but Labow

appeals only the withholdings based on implied assurances.

At this point, the government has withheld only one page of

one document based solely on implied assurances of

confidentiality.

“The agency invoking Exception 7(D) bears the burden

of proving that it applies, and with respect to the FBI, it is not

enough for the agency to claim that all sources providing

information in the course of a criminal investigation do so on

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a confidential basis.” Roth v. U.S. Dep’t of Justice, 642 F.3d

1161, 1184 (D.C. Cir. 2011). We consider four factors when

assessing an implied assurance of confidentiality: “the

character of the crime at issue, the source’s relation to the

crime, whether the source received payment, and whether the

source has an ongoing relationship with the law enforcement

agency and typically communicates with the agency only at

locations and under conditions which assure the contact will

not be noticed.” Id. (quoting Landano, 508 U.S. at 179)

(internal quotation marks omitted).

In this case, David M. Hardy, who as noted is the FBI’s

chief of records management, has submitted several

declarations describing informants who provided information

withheld from Labow. Based on those declarations, we

conclude that the four Roth factors favor a finding of implied

confidentiality for purposes of Exemption 7(D).

The first factor, the character of the crime, contemplates

that sources likely expect confidentiality when they report on

serious or violent crimes, risking retaliation. See Landano,

508 U.S. at 179; Mays v. Drug Enf’t Admin., 234 F.3d 1324,

1330 (D.C. Cir. 2000). Hardy’s declaration states that “[t]he

disclosure of the identities of these sources and the

information they provided could have disastrous

consequences because disclosure could subject these third

parties, as well as their families, to embarrassment,

humiliation, and/or physical or mental harm.” Hardy Decl.

¶ 96(a) (J.A. 109). He further explains that “sources

providing information to the FBI about extremist activities do

so at great peril to themselves and have faced retaliation and

threats (including death threats) when their assistance to the

FBI has been publicly disclosed.” Id.

13

Although Labow correctly observes that the withholdings

at issue are contained in a document predating the incident at

the Four Seasons, Hardy’s explanation of the risks of

informing on anarchist groups spoke to the potential dangers

posed by anarchist extremists in general, not solely by the

particular individuals who planned the Four Seasons attack.

And while Labow argues that Hardy’s explanations are too

general and conclusory, we have credited the FBI’s

assessment of risks faced by informants even if described in

relatively broad strokes. In Hodge v. FBI, 703 F.3d 575, 581

(D.C. Cir. 2013), for example, an FBI declaration stated that

disclosure “could have disastrous consequences” and “subject

[informants] to violent reprisals.” We found that explanation

sufficient, and we do the same here. The government need

not provide justifications specific to a particular group of

offenders when inferences can reasonably be drawn from the

type of crime committed.

The second Roth factor calls for considering the source’s

relationship to the crime, because sources divulging non-

public, identifying information are more “vulnerable to

retaliation.” Mays, 234 F.3d at 1330. Here, Hardy’s

declarations do not claim that the informants directly

participated in the crime about which they provided

information. But a source of course need not have personally

participated in a crime in order to know information about it

that could reveal her identity were the information to be

released. In this case, Hardy explains, the informants were

“in a position to have ready access to and/or knowledge about

targets and others involved in extremist activities.” Hardy

Decl. ¶ 96(a) (J.A 108). And those sources “provided specific

detailed information that is singular in nature.” Id. That

describes the kind of information that, if it were revealed to

the public, could be traced to a particular source.

14

With regard to the third Roth factor, all parties agree that

the sources did not receive payment. That fact weighs against

a finding of confidentiality, but it is not itself dispositive.

Finally, the fourth Roth factor concerns the duration of

the source’s relationship with law enforcement and the

manner of communication. Consistent and secretive

communications indicate a source’s expectation of

confidentiality. Here, we have no information about the

sources’ manner of communication. But Hardy’s declaration

does indicate that the sources provided information “over a

period of time that had proven to be reliable.” Id. That factor

thus weighs at least modestly in favor of a finding of

confidentiality.

Considering the four factors together, we agree with the

district court that they suggest the sources expected

confidentiality. Although the sources were not paid, they

provided ongoing, singular information about serious crimes.

In those circumstances, the district court correctly sustained

the FBI’s reliance on Exemption 7(D).

D.

Earlier in this appeal, Labow had also challenged a

withholding under Exemption 7(A), which exempts “records

or information compiled for law enforcement purposes” if

disclosure “could reasonably be expected to interfere with

enforcement proceedings.” 5 U.S.C. § 552(b)(7)(A). The

government has now released the documents it initially

withheld under Exemption 7(A), Appellee’s Br. 17, so that

issue is no longer a live one. We will grant Labow’s request

to vacate the district court’s grant of summary judgment to the

government with regard to its use of Exemption 7(A). See

Carlisle Tire & Rubber Co. v. U.S. Customs Serv., 663 F.2d

15

210, 213 (D.C. Cir. 1980). Vacatur is appropriate when a

party moots an issue it won in a lower court, precluding

review on appeal and preserving the lower-court opinion as

precedent. See 13C Charles Alan Wright et al., Federal

Practice and Procedure § 3533.10.1 (3d ed. 2008). Although

district court opinions do not establish binding precedent on

other courts, the government has not objected to vacatur here.

We thus grant Labow’s request.

III.

Labow’s final challenge concerns the government’s

possible reliance on a FOIA exclusion. See 5 U.S.C. § 552(c).

Exclusions differ from exemptions in that the government

need not affirmatively claim the former. Rather, when an

exclusion applies, the government may “treat the records as

not subject to the requirements” of FOIA at all, id., and can

thus withhold the documents without comment.

Although the government has not publicly invoked an

exclusion in this case, Labow suspects that the government

withheld records based on the exclusion set forth in 5 U.S.C.

§ 552(c)(1). That exclusion applies if:

a request is made which involves access to

records described in [Exemption 7(A)] and—

(A) the investigation or proceeding involves a

possible violation of criminal law; and

(B) there is reason to believe that (i) the

subject of the investigation or proceeding

is not aware of its pendency, and (ii)

disclosure of the existence of the records

16

could reasonably be expected to interfere

with enforcement proceedings

5 U.S.C. § 552(c)(1). Exemption 7(A) in turn, as noted,

encompasses records whose production “could reasonably be

expected to interfere with enforcement proceedings.” Id.

§ 552(b)(7)(A). The two provisions together thus exclude

records from FOIA’s disclosure mandate if production would

interfere with enforcement proceedings and the documents

relate to a criminal investigation about which the target is

unaware.

In this case, the district court, adhering to standard FBI

practice when confronting a challenge to the suspected use of

the exclusion at issue here, reviewed an ex parte FBI affidavit

in camera to determine whether the exclusion had in fact been

applied, and, if so, whether its application was appropriate.

Labow, 66 F. Supp. 3d at 128; see ACLU of Mich. v. FBI, 734

F.3d 460, 470-71 (6th Cir. 2013). In rejecting Labow’s

challenge to the suspected use of the exclusion, the district

court said only that, “if an exclusion was in fact employed, it

was, and continues to remain, amply justified.” Labow, 66 F.

Supp. 3d at 128. Labow thus remains unsure of whether the

government actually made use of the exclusion to withhold

records.

We review the district court’s decision to review

evidence ex parte for abuse of discretion. See Lykins v. U.S.

Dep’t of Justice, 725 F.2d 1455, 1465 (D.C. Cir. 1984). The

specific question is whether the court abused its discretion by

relying on in camera review of the ex parte affidavit rather

than following an alternative method presented by Labow for

addressing a challenge to the government’s possible use of a

FOIA exclusion. While we have explained that a court should

resort to in camera review only in limited circumstances, see

17

Yeager v. Drug Enf’t Admin., 678 F.2d 315, 324 (D.C. Cir.

1982), we find no abuse of discretion here.

Under Labow’s alternative proposal, the parties would

first assume that an exclusion had been applied and would

submit public briefs on whether the hypothetical reliance on

the exclusion would be appropriate. The district court would

then issue a public opinion addressing whether the exclusion,

in theory, would be applicable in the circumstances. If the

theoretical use of the exclusion were invalid, the court would

then review ex parte submissions to determine whether the

government in fact made use of the exclusion. In essence,

Labow’s proposal inverts the approach followed by the

district court: instead of initially assessing whether an

exclusion in fact was used and then, if so, assessing the

permissibility of its use, Labow would first ask whether

reliance on the exclusion would be permissible and then, if so,

assess whether it in fact was used.

Labow’s suggested approach would generally enable a

FOIA requester to learn whether the government’s use of an

exclusion would (at least in theory) be justified in the

circumstances. But district courts would be in the business of

considering and deciding abstract questions about the

theoretical applicability of a FOIA exclusion in circumstances

in which the government might have never relied on the

exclusion in the first place.

Two courts of appeals have rejected proposals paralleling

Labow’s. The Sixth Circuit refused to require the same

procedure, for reasons including the risks of revealing

information during the briefing process. ACLU of Mich., 734

F.3d at 470-72. The more the government turns to

hypothetical arguments to avoid revealing any information,

the court reasoned, the less productive the adversarial briefing

18

would be: “Open-ended hypothetical questions are not well

suited to the litigation process.” Id. at 472. And the

government would be “tasked with responding to [abstract]

shots in the dark” in circumstances in which “fashioning a

response is fraught with concerns of accidentally disclosing

the existence or nonexistence of secret information.” Id. The

Third Circuit later came to the same conclusion. ACLU of

N.J. v. FBI, 733 F.3d 526, 533-35 (3d Cir. 2013). Here, the

district court did not abuse its discretion in declining to follow

a process rejected by those decisions and instead adhering to a

practice endorsed by them.

We must finally review de novo whether the district court

was wrong in finding no error in the FBI’s reliance, if any, on

an exclusion in this case. We, like the district court, have

reviewed the government’s submissions about the exclusion

in camera. And we, like the district court, will not comment

on whether the FBI in fact relied on an exclusion. Instead, we

hold only that no documents have been withheld pursuant to

any impermissible use of an exclusion.

* * * * *

For the foregoing reasons, we affirm the district court’s

grant of summary judgment in favor of the government on the

claims under Exemption 7(D) and under the exclusion set

forth in 5 U.S.C. § 552(c)(1). We reverse the grant of

summary judgment on both challenges to withholdings under

Exemption 3 and remand for further proceedings consistent

with this opinion. Finally, we vacate the district court’s

opinion with regard to Exemption 7(A).

So ordered.