Royce Corley v. DOJ

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 2, 2021 Decided June 1, 2021

No. 19-5106

ROYCE CORLEY,

APPELLANT

v.

DEPARTMENT OF JUSTICE,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:14-cv-02157)

Noah B. Bokat-Lindell, appointed by the court, argued the

cause as amicus curiae in support of appellant. With him on the

briefs were David W. DeBruin and Ian Heath Gershengorn,

appointed by the court.

Royce Corley, pro se, filed the brief for appellant.

Peter C. Pfaffenroth, Assistant U.S. Attorney, argued the

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

Lawrence and Jane M. Lyons, Assistant U.S. Attorneys.

Patricia K. McBride, Assistant U.S. Attorney, entered an

appearance.

2

Before: TATEL and RAO, Circuit Judges, and SILBERMAN,

Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge: Appellant Royce Corley brought

suit under the Freedom of Information and Privacy Acts to

obtain records from the Department of Justice related to his

criminal prosecution. His case raises several issues, including

whether the Child Victims’ and Child Witnesses’ Rights Act

(“Child Victims’ Act”), 18 U.S.C. § 3509, qualifies as a FOIA

Exemption 3 withholding statute and, if so, whether it covers

the records Corley seeks. Because we agree with the

government that the answer to both questions is “yes,” and that

Corley’s other arguments are without merit, we affirm the

district court’s grant of summary judgment to DOJ.

I.

In 2013, a jury sitting in the U.S. District Court for the

Southern District of New York convicted Corley of three

counts of sex trafficking of a minor, 18 U.S.C. § 1591(a), and

one count of possession of child pornography, 18 U.S.C.

§ 2252A(a)(5)(B). See United States v. Corley, 679 F. App’x 1,

3 (2d Cir. 2017) (summary order). Following his conviction,

Corley alleges he sent three FOIA requests, two of which were

also made under the Privacy Act, to the Department of Justice.

DOJ denies that it received the first two, but acknowledges that

it received the third.

Corley alleges that he sent the first request to the

Department’s Mail Referral Unit in the Justice Management

Division. Compl. ¶ 15; see also 28 C.F.R. § 16.3(a)(2) (“A

[FOIA] requester may [] send requests to the FOIA/PA Mail

Referral Unit, Justice Management Division . . . . The Mail

Referral Unit will forward the request to the component(s) that

3

it determines to be most likely to maintain the records that are

sought.”). According to Corley, the request sought data on the

demographics of sex trafficking defendants and victims from

2003 to 2013. Compl. ¶ 15. Having received no response,

Corley sent another letter “appeal[ing] the constructive denial”

of his request, id., to which he says he attached a copy of his

initial request, Mot. for Summ. J. 16, Joint Appendix (J.A.)

102. The Mail Referral Unit assigned Corley’s appeal a

tracking number and referred it to the Office of Information

Policy, which handles FOIA appeals. Mail Referral Unit

Acknowledgement Letter, J.A. 162; see also 28 C.F.R.

§ 16.8(a) (“A requester may appeal any adverse determinations

to [the Office of Information Policy].”).

Roughly eight months later, the Office of Information

Policy sent a letter rejecting what it called Corley’s “attempt[]

to appeal from the action of the Mail Referral Unit (MRU) on

[his] request for records concerning demographics of subjects

charged with sex trafficking.” Office of Information Policy

Response, J.A. 164. It explained that “Department of Justice

Regulations provide for a Freedom of Information Act

administrative appeal only after there has been an adverse

determination by an identified component.” Id. (citing 28

C.F.R. § 16.9(a) (2014)). And since “MRU ha[d] no record of

having received a FOIA request from [Corley]” nor “did

[Corley] identify any other component of the Department of

Justice from whose action [he] might be appealing,” there was

“no action for th[e] Office to consider on appeal.” Id.

Accordingly, the Office closed Corley’s “appeal file.” Id.

Corley claims that he sent his second FOIA request, also

brought under the Privacy Act, to the U.S. Attorney’s Office

for the Southern District of New York. Compl. ¶ 16. He sought

records related to himself, his alias “Ron Iron,” and his case.

Id. Again receiving no response, Corley sent a letter appealing

4

the “constructive denial.” Id. The U.S. Attorney’s Office

forwarded the appeal to the Executive Office for United States

Attorneys, which processes requests for records maintained by

U.S. Attorneys’ Offices. Stone Decl. ¶¶ 6, 9, J.A. 77. The

request lay dormant until the filing of this lawsuit, after which

the Executive Office instructed the U.S. Attorney’s Office to

perform a search for responsive records. Id. ¶ 6, J.A. 77. The

Executive Office then released 93 pages of material in full and

58 pages in part. Id. ¶ 11, J.A. 78. It withheld 323 pages of

responsive records, including “the names, descriptions and

other personally identifiable information” of Corley’s victims.

Stone Decl. ¶¶ 11, 15–17, J.A. 78–79. To justify its

withholdings, the Executive Office invoked, among others,

FOIA Exemption 3, which authorizes withholding of certain

materials “specifically exempted from disclosure by statute.” 5

U.S.C. § 552(b)(3). The “statute” DOJ relied on was the Child

Victims’ Act, which restricts disclosure of “information

concerning a child [victim or witness].” 18 U.S.C.

§ 3509(d)(1)(A)(i). With respect to the Privacy Act, the

Executive Office withheld records under subsection (j)(2),

which allows an agency to “exempt any system of records”

from the relevant disclosure provisions if the agency “performs

as its principal function any activity pertaining to the

enforcement of criminal laws,” and the record system itself

consists of certain types of law enforcement information.

5 U.S.C. § 552a(j)(2).

Corley sent his third FOIA request, again also made under

the Privacy Act, to the FBI. This request used the same search

parameters as the one sent to the U.S. Attorney’s Office. Hardy

Decl. ¶ 5, J.A. 31. The FBI initially withheld all responsive

records pursuant to FOIA Exemption 7(A), which exempts

records that “could reasonably be expected to interfere with

enforcement proceedings,” 5 U.S.C. § 552(b)(7)(A), such as an

“investigative file,” Hardy Decl. ¶ 7, J.A. 31. Corley appealed

5

to the Office of Information Policy, which affirmed the FBI’s

determination. Several months later, after the investigation

concluded, the FBI informed Corley that it would release 40

pages of responsive records and withhold 89, including those

that disclosed “the names[, ]descriptions . . . and other

identifying information” of Corley’s victims. Id. ¶¶ 11, 32, J.A.

32, 42. In support, the FBI relied on several FOIA exemptions,

including Exemption 3 and the Child Victims’ Act. Id. To

justify its withholdings under the Privacy Act, the FBI relied

on subsection (j)(2). Id. ¶¶ 23–25, J.A. 37–38.

The district court, over the course of three opinions,

granted summary judgment to DOJ. See Corley v. Holder, No.

14-cv-2157 (D.D.C. Mar. 30, 2016), ECF No. 29; Corley v.

Sessions, 280 F. Supp. 3d 164 (D.D.C. 2017); Corley v.

Department of Justice, No. 14-cv-2157, 2019 WL 1427432

(D.D.C. Mar. 29, 2019). Corley appealed, and because he is pro

se, we appointed David DeBruin as amicus curiae on his behalf,

and his associate Noah Bokat-Lindell argued the case. Messrs.

DeBruin and Bokat-Lindell have more than ably discharged

their duties, and we thank them for their service.

At our direction, amicus briefed three issues: (1) whether

DOJ properly withheld documents relating to Corley’s victims

under Exemption 3 and, by extension, the Child Victims’ Act;

(2) whether DOJ failed to assert a defense to Corley’s Privacy

Act claim based on the Executive Office request; and (3)

whether DOJ should have construed Corley’s premature

administrative appeal as a new FOIA request.

II.

FOIA Exemption 3 authorizes agencies to withhold

records that are “specifically exempted from disclosure by

statute.” 5 U.S.C. § 552(b)(3). A statute qualifies for the

exemption if it “requires that . . . matters be withheld from the

6

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

or if it “establishes particular criteria for withholding or refers

to particular types of matters to be withheld.” Id.

§ 552(b)(3)(A). To withhold records under Exemption 3, an

agency must make two showings: “that the statute [] is one of

exemption as contemplated by Exemption 3,” and “that the

withheld material falls within the statute.” Larson v.

Department of State, 565 F.3d 857, 865 (D.C. Cir. 2009).

Amicus argues that DOJ has failed to satisfy its burden with

respect to both requirements. Specifically, amicus contends

that the Child Victims’ Act does not qualify as an Exemption 3

withholding statute and that, in any event, it does not protect

the documents in this case. We consider each argument in turn.

A.

The Child Victims’ Act addresses the treatment of “child”

victims and witnesses by the federal criminal justice system. It

defines a “child” as “a person who is under the age of 18, who

is or is alleged to be—(A) a victim of a crime of physical abuse,

sexual abuse, or exploitation; or (B) a witness to a crime

committed against another person.” 18 U.S.C. § 3509(a)(2).

Although much of the statute concerns children who

testify at trial, it also contains privacy protections for child

victims and witnesses. Subsection (d)(1) provides that “all

employees of the Government connected with the case” who

act “in connection with a criminal proceeding shall—(i) keep

all documents that disclose the name or any other information

concerning a child in a secure place to which no person who

does not have reason to know their contents has access” and

“(ii) disclose documents described in clause (i) or the

information in them that concerns a child only to persons who,

by reason of their participation in the proceeding, have reason

to know such information.” Id. § 3509(d)(1)(A), (B)(i).

Subsections (d)(2) and (d)(3) contain similar provisions that

7

authorize sealing and protective orders for “information

concerning a child.” Id. § 3509(d)(2), (3). Subsection (d)(4)

limits the reach of these provisions: “[t]his subsection does not

prohibit disclosure of the name of or other information

concerning a child to,” among others, “the defendant, the

attorney for the defendant . . . or to anyone to whom, in the

opinion of the court, disclosure is necessary to the welfare and

well-being of the child.” Id. § 3509(d)(4).

We agree with the government that the Child Victims’ Act

unambiguously qualifies as an Exemption 3 statute. Stripped to

its essence, the statute provides that “all employees of the

Government” involved in a particular case “shall keep all

documents that disclose the name or any other information

concerning a child in a secure place” and disclose such

documents “only to persons who, by reason of their

participation in the proceeding, have reason to know such

information.” Id. § 3509(d)(1)(A)(i), (A)(ii), (B)(i) (emphasis

added). This two-part requirement, that documents “shall” be

kept “in a secure place” and disclosed “only” to authorized

personnel (as opposed to the general public), id., clearly

“requires that . . . matters be withheld from the public in such

a manner as to leave no discretion on the issue,” 5 U.S.C.

§ 552(b)(3)(A)(i).

This understanding of the Act’s privacy protections

accords with our court’s decision in United States v. Brice, 649

F.3d 793 (D.C. Cir. 2011). There, a criminal defendant

appealed the district court’s refusal to unseal “records of . . .

two material witness proceedings” that the district court had

“referred to” at sentencing. Id. at 794. He argued that the Child

Victims’ Act’s privacy protections gave him a “right of access”

to the sealed material. Id. at 797. Rejecting that contention, we

explained that “[b]y its terms . . . § 3509(d) is not an affirmative

8

disclosure statute but rather forbids disclosure of sensitive

information.” Id. (emphasis added).

Relying on the Supreme Court’s decision in Department

of Justice v. Julian, 486 U.S. 1 (1988), amicus contends that

the Child Victims’ Act does not qualify as an Exemption 3

withholding statute because “it does not fully prohibit

disclosure” as a result of subsection (d)(4), which states that the

Act’s privacy provisions “‘do[] not prohibit disclosure . . . to,’”

among others, “‘the defendant.’” Amicus Br. 28 (quoting 18

U.S.C. § 3509(d)(4)). Julian concerned two defendants’ FOIA

requests for their “presentence investigation reports.” 486 U.S.

at 3. DOJ argued that Federal Rule of Criminal Procedure 32

and the Parole Act authorized withholding of the reports

pursuant to Exemption 3. The two provisions mandated that

criminal defendants receive access to their presentence reports

at particular times, with exceptions for certain sensitive

information. Id. at 8–9. The Court held that neither provision

“specifically exempt[ed] the reports from disclosure,” pointing

out that Rule 32 and the Parole Act had been “recently changed,

not to protect the presentence report from disclosure, but to

ensure that it would be disclosed to the defendant.” Id. As our

court later explained, Julian hinged on the fact that Rule 32 and

the Parole Act “contain[ed] no language expressly denying”

access. Natural Resources Defense Council, Inc. v. Defense

Nuclear Facilities Safety Board, 969 F.2d 1248, 1252 (D.C.

Cir. 1992). By contrast, the Child Victims’ Act unambiguously

requires that government employees “shall . . . disclose

documents [concerning a child] or the information in them that

concerns a child only to persons who, by reason of their

participation in the proceeding, have reason to know such

information.” 18 U.S.C. § 3509(d)(1)(A)(ii) (emphasis added);

see also Brice, 649 F.3d at 797 (“The [Child Victims’ Act]

therefore does not afford a right of access.”).

9

Subsection (d)(4)’s exemption of “disclosure . . . to the

defendant” has nothing to do with the Exemption 3 analysis.

Corley seeks these documents not as a criminal defendant

under subsection (d)(4), but rather as a member of the public

pursuant to FOIA. Except in limited circumstances under

Exemption 5 not present here, “‘[t]he identity of the requesting

party has no bearing on the merits’ of a FOIA request at all.”

Loving v. Department of Defense, 550 F.3d 32, 39 (D.C. Cir.

2008) (quoting Department of Justice v. Reporters Committee

for Freedom of the Press, 489 U.S. 749, 771 (1989)). This

principle rings especially true for Exemption 3, which, by its

terms, requires only that a statute withhold materials “from the

public,” rather than from the requester. 5 U.S.C.

§ 552(b)(3)(A)(i).

Amicus contends that the Act’s privacy protections “do

not clearly require withholding of records once a criminal trial

ends” because they apply only to those acting “‘in connection

with a criminal proceeding.’” Amicus Br. 30 (quoting 18

U.S.C. § 3509(d)(1)(A)). But one can act as the custodian of a

record “in connection with a criminal proceeding” long after

the criminal proceeding has ended. 18 U.S.C. § 3509(d)(1)(A).

Moreover, we seriously doubt that Congress intended that

sensitive information become publicly available as soon as a

criminal case ends.

B.

In the alternative, amicus argues that even if the Child

Victims’ Act’s privacy protections qualify as an Exemption 3

withholding statute, they do not apply to the documents at issue

because Corley’s victims are no longer minors. Recall that the

statute protects “documents that disclose the name or any other

information concerning a child.” 18 U.S.C. § 3509(d)(1)(A)(i).

According to amicus, the phrase “concerning a child” refers

only to victims and witnesses under eighteen and the

10

documents Corley seeks concern victims who are now over

eighteen.

In support of its interpretation of the phrase “concerning a

child,” amicus relies on the statute’s definition of “child,” and

the Dictionary Act. The former defines “child” as an alleged

victim or witness “who is under the age of 18.” Id. § 3509(a)(2)

(emphasis added). The Dictionary Act provides that “unless the

context indicates otherwise[,] . . . words used in the present

tense include the future as well as the present.” 1 U.S.C. § 1.

Accordingly, amicus argues, “Congress’s decision to employ

the present tense [in the statutory definition] strongly suggests

that the statute refers to the subject’s current age.” Amicus Br.

31. In other words, the use of “is” in the statutory definition

means that whether information “concerns a child” depends on

whether the victim “is” a child at the time of the FOIA request.

Although this argument has some facial appeal, the

Dictionary Act, as noted above, does not apply when “the

context indicates otherwise,” 1 U.S.C. § 1, and here the

“context” does just that. The use of the word “concerning” in

relation to a document typically refers to the subject of the

document; a document concerns a given subject if it is about

that subject. And with respect to descriptions of the past, the

subject can be described in terms that reflect the subject’s

previous state rather than its current state. A history book about

Tsarist Russia concerns a monarchy even though Russia today

is not a monarchy. Here, the documents at issue concern

Corley’s minor victims in their capacity as minor victims.

Thus, they concern children. Consider a graphic photograph

depicting the abuse of a child who is now an adult. We would

colloquially use the present tense and say that the photograph

is of a child, or in the words of the statutory definition, “a

person who is under the age of 18,” even though the victim is

now an adult. 18 U.S.C. § 3509(a)(2) (emphasis added). Yet, it

11

would be odd to say that the photograph is of a child but no

longer concerns a child.

True, several provisions of the Act appear to use the word

“child” to reference a person’s current age. For example,

subsection (i) provides that “[a] child testifying at or attending

a judicial proceeding shall have the right to be accompanied by

an adult attendant to provide emotional support to the child”

and that the court “may allow the adult attendant to hold the

child’s hand or allow the child to sit on the adult attendant’s lap

throughout the course of the proceeding.” Id. § 3509(i). But the

statute uses the phrase “concerning a child” only in the privacy

protections subsection, indicating that we should think about

age differently for those provisions.

Interpreting “concerning a child” to refer to the subject’s

age at the time of the offense accords with the statute’s purpose,

to protect minor victims’ and witnesses’ privacy. Again,

consider a graphic image depicting child abuse. If amicus were

correct, then Congress would have authorized the potential

release of a highly sensitive and private photograph as soon as

the victim’s eighteenth birthday. This strikes us as highly

unlikely, especially since some trials, such as Corley’s, occur

after victims turn eighteen. Cf. 18 U.S.C. § 3509(d)(2)

(provision of the Act mandating that “[a]ll papers to be filed in

court that disclose the name of or any other information

concerning a child shall be filed under seal”).

Amicus acknowledges that some information about minor

victims can be “undoubtedly sensitive,” but suggests that

agencies can prevent disclosure by invoking other FOIA

exemptions on a case-by-case basis. Amicus Br. 2. But the

Child Victims’ Act is a general-purpose statute that governs in

both FOIA and non-FOIA cases alike, and in these other

contexts, agencies may lack alternative avenues to prevent

12

disclosure. And even if an agency may withhold the

information in a given scenario, it may have no mandate to do

so unless the Child Victims’ Act’s privacy protections apply.

Observing that Corley’s victims were no longer minors at

the time of his conviction, amicus suggests that the statute

could alternatively be read to protect information concerning

those who are still minors when a case goes to trial. This

interpretation, however, finds no support in the statute’s text.

Nothing in the Act connects the privacy protections to trials.

Indeed, most criminal cases end with a guilty plea, and we fail

to see how amicus’s proposed interpretation would apply in

such situations. Certainly, Congress has given no indication

that it wanted a victim whose culprit pleads guilty to go

unprotected.

III.

This brings us to amicus’s final two arguments.

First, amicus contends that DOJ forfeited any Privacy Act

defenses for Corley’s Executive Office request by failing to

assert distinct Privacy Act exemptions in the district court. See

5 U.S.C. § 552a(t)(1) (“No agency shall rely on any exemption

contained in section 552 of this title [FOIA] to withhold from

an individual any record which is otherwise accessible to such

individual under the provisions of this section.”). In its initial

summary judgment motion, in a section titled “Withholding

under the Privacy Act Is Proper,” DOJ argued that Corley’s

“case file” was exempt based on Privacy Act subsection (j)(2)

and 28 C.F.R. § 16.81. Mot. for Summ. J. 8–9, Supplemental

Appendix 39–40. The former authorizes agencies to

promulgate regulations exempting certain kinds of law

enforcement records from Privacy Act disclosure, see 5 U.S.C.

§ 552a(j)(2), and the latter exercises that authority for “United

States Attorneys Systems,” 28 C.F.R. § 16.81. DOJ’s motion,

13

while hardly a model of clarity, did assert grounds for

withholding under the Privacy Act for the Executive Office

request. Indeed, DOJ’s reliance on 28 C.F.R. § 16.81 would

have made little sense otherwise.

Amicus insists that even if DOJ made such an argument in

its initial motion, it affirmatively waived all Privacy Act

defenses in its summary judgment reply brief by stating that the

Executive Office “did not withhold records under the Privacy

Act; rather, it withheld under FOIA exemptions.” Summ. J.

Reply 6, Corley v. Holder, No. 14-cv-2157 (D.D.C. Mar. 30,

2016), ECF No. 24. But as the Supreme Court has explained,

“[w]aiver is the intentional relinquishment or abandonment of

a known right” and cannot be the product of “inadvertent

error.” Wood v. Milyard, 566 U.S. 463, 474 (2012) (internal

quotation marks omitted). In that case, the Court found that a

party had waived a particular argument after it “express[ed] its

clear and accurate understanding” and “deliberately steered the

District Court away from the question.” Id. Given DOJ’s

assertion of the relevant Privacy Act exemption in its initial

motion, as well as its consistent effort to withhold records

throughout this litigation, we decline to treat its stray statement

in the reply brief as an “intentional” or “deliberate” choice to

waive all Privacy Act exemptions. Id. (internal quotation marks

omitted).

Second, pointing out that Corley attached a copy of his

initial request to his administrative appeal to the Justice

Management Division, amicus argues that DOJ should have

treated that appeal as a new FOIA request. But amicus cites to

no legal authority, nor are we aware of any, imposing such a

duty on DOJ. Indeed, just as a request must “reasonably

describe” the desired records, 5 U.S.C. § 552(a)(3)(A)(i), a

submission must be reasonably clear that its sender intends it

to be a new request. Cf. Truitt v. Department of State, 897 F.2d

14

540, 544 (D.C. Cir. 1990) (“When, however, an agency

becomes reasonably clear as to the materials desired, FOIA’s

text and legislative history make plain the agency’s obligation

to bring them forth.”). Here, DOJ treated Corley’s submission

as what it purported to be: an administrative appeal with

relevant supporting documents attached.

IV.

Finding the remaining arguments raised solely by Corley

to be without merit, we affirm the judgment of the district

court.

So ordered.