Opposition Brief — Nathaniel J. Buckley, Petitioner v. Department of Justice
Supreme Court briefMay 20, 2026
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No. 25-1035
In the Supreme Court of the United States
NATHANIEL J. BUCKLEY, PETITIONER
v.
DEPARTMENT OF JUSTICE
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION
D. JOHN SAUER
Solicitor General
Counsel of Record
BRETT A. SHUMATE
Assistant Attorney General
DANIEL TENNY
BEN LEWIS
Attorneys
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217
QUESTION PRESENTED
Whether agency records or information of the Federal Bureau of Investigation generated in a domestic
terrorism investigation that the agency conducted to
determine whether illegal activity had occurred are
“records or information compiled for law enforcement
purposes” under Exemption 7 of the Freedom of Information Act, 5 U.S.C. 552(b)(7), if other purposes for the
investigation may exist or if the agency’s investigative
methods are purportedly unlawful.
(I)
TABLE OF CONTENTS
Page
Jurisdiction .................................................................................... 1
Statement ...................................................................................... 1
Argument..................................................................................... 11
Conclusion ................................................................................... 26
TABLE OF AUTHORITIES
Cases:
CIA v. Sims, 471 U.S. 159 (1985) .................................... 12
Clemente v. FBI, 867 F.3d 111 (D.C. Cir. 2017) ... 3, 16, 21
Curran v. DOJ, 813 F.2d 473 (1st Cir. 1987) ................. 21
Cutter v. Wilkinson, 544 U.S. 709 (2005) ....................... 20
Davin v. DOJ, 60 F.3d 1055 (3d Cir. 1995) .................... 20
Doe v. FBI, 936 F.2d 1346 (D.C. Cir. 1991).................... 17
Food Mktg. Inst. v. Argus Leader Media,
588 U.S. 427 (2019) ....................................................... 12
Halpern v. FBI, 181 F.3d 279 (2d Cir. 1999) ........ 2, 10, 21
Irons v. Bell, 596 F.2d 468 (1st Cir. 1979) ...................... 21
John Doe Agency v. John Doe Corp.,
493 U.S. 146 (1989) .................................. 9, 12, 15, 17, 23
Jones v. FBI, 41 F.3d 238 (6th Cir. 1994) ...................... 21
Jordan v. DOJ, 668 F.3d 1188 (10th Cir. 2011),
cert. denied, 566 U.S. 998 (2012) .................................. 21
Kuehnert v. FBI, 620 F.2d 662 (8th Cir. 1980) .............. 21
Milner v. Department of the Navy,
562 U.S. 562 (2011) ....................................................... 15
Pratt v. Webster,
673 F.2d 408 (D.C. Cir. 1982) .................. 16-18, 21-23, 25
Rosenfeld v. DOJ, 57 F.3d 803 (9th Cir. 1995) ............... 22
Shaw v. FBI, 749 F.3d 58 (D.C. Cir. 1984) .......................... 26
(III)
IV
Cases—Continued:
Page
The Monrosa v. Carbon Black Exp., Inc.,
359 U.S. 180 (1959).............................................................. 24
Williams v. FBI, 730 F.2d 882 (2d Cir. 1984) ................ 21
Constitution and statutes:
U.S. Const. Amend. I ............................................................ 14
Freedom of Information Act, 5 U.S.C. 552 ........................... 1
5 U.S.C. 552(a)(3)(A) ....................................................... 12
5 U.S.C. 552(a)(4)(B) ....................................................... 23
5 U.S.C. 552(b) ................................................................. 12
5 U.S.C. 552(b)(7) ............................... 2, 6, 8, 12, 13, 16, 20
5 U.S.C. 552(b)(7)(B) ....................................................... 16
5 U.S.C. 552(b)(7)(C) ......................................................... 6
5 U.S.C. 552(b)(7)(D) ....................................6, 8, 13, 16, 19
5 U.S.C. 552(b)(7)(E) ................................................... 6, 16
5 U.S.C. 552(b)(7)(F) ....................................................... 16
5 U.S.C. 552(c) ................................................................. 12
5 U.S.C. 552(c)(2) ............................................................. 13
Miscellaneous:
Anti-Defamation League, Report, Ecoterrorism:
Extremism in the Animal Rights and Environmentalist Movements (Feb. 2, 2005),
https://perma.cc/7TUZ-TENC ........................................ 3, 4
Josh Cotton, 20 Years Since Attack at Research
Station in Irvine, Times Observer (Warren, Penn.),
Aug. 27, 2022, https://perma.cc/SKW6-C2FG ................... 4
Eco-Terrorism Specifically Examining the Earth
Liberation Front and the Animal Liberation
Front: Hearing Before the Senate Comm. on
Env’t and Pub. Works, 109th Cong., 1st. Sess.
(2005) .............................................................................. 3
V
Miscellaneous—Continued:
Page
FBI, Putting Intel to Work Against ELF and ALF
Terrorists (June 30, 2008), https://perma.cc/
3GFE-2DZC .......................................................................... 2
H.R. Rep. No. 1497, 89th Cong., 2d Sess. (1966) ........... 13
S. Rep. No. 221, 98th Cong., 1st Sess. (1983) ................. 13
Horacio R. Trujillo, The Radical Environment
Movement, in 2 Brian A. Jackson et al., Aptitude
for Destruction: Case Studies of Organizational
Learning in Five Terrorist Groups (2005),
https://perma.cc/JS8T-HSRW ....................................... 3
In the Supreme Court of the United States
No. 25-1035
NATHANIEL J. BUCKLEY, PETITIONER
v.
DEPARTMENT OF JUSTICE
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION
OPINIONS BELOW
The order of the court of appeals (Pet. App. 1a-8a) is
available at 2025 WL 2911011. The opinions of the district court (Pet. App. 9a-18a, 19a-70a) are available at
2024 WL 4677633 and 2021 WL 5371463.
JURISDICTION
The judgment of the court of appeals was entered on
October 14, 2025. On December 31, 2025, Justice Sotomayor extended the time within which to file a petition for a writ of certiorari to and including February
11, 2026. On February 4, 2026, Justice Sotomayor further extended the time to and including February 26,
2026, and the petition was filed on that date. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).
STATEMENT
This action under the Freedom of Information Act
(FOIA), 5 U.S.C. 552, concerns a FOIA request to the
Federal Bureau of Investigation (FBI) for which the re(1)
2
sponsive records were compiled by the FBI during its
investigation of potential violations of federal law, including domestic terrorism. Petitioner contends that
FBI records created during a 2012-2014 FBI domestic
terrorism investigation were not “compiled for law enforcement purposes,” 5 U.S.C. 552(b)(7)—and thus are
not exempt from disclosure under FOIA Exemption 7—
because the FBI conducted the investigation based on
“political * * * concerns that federal laws may have
been violated” and engaged in purportedly unlawful
surveillance during the investigation. Pet. C.A. Br. 3, 5;
see Pet. App. 36a. The district court determined that
the records “were compiled for law enforcement purposes” and that “ ‘the purpose or legitimacy’ ” of the
2012-2014 investigation was not properly subject to review in this FOIA case. Pet. App. 36a, 38a-40a (quoting
Halpern v. FBI, 181 F.3d 279, 296 (2d Cir. 1999)). The
court of appeals affirmed. Id. at 4a.
1. This case concerns FBI records created during an
investigation that petitioner contends was “an FBI domestic terrorism probe * * * into * * * Leslie James
Pickering,” Pet. C.A. Br. 3, that began in January 2012,
in which petitioner was investigated “based on [his] association with Pickering.” C.A. App. 113. Two FBI reports from 2004 and 2006 that petitioner filed in this case
(see id. at 122-125) set the stage for petitioner’s contentions about that investigation in Buffalo, New York.
a. The 2004 FBI report from the FBI’s Joint Terrorism Task Force in Buffalo reported that “Pickering
is a former spokesperson for the Earth Liberation Front
(ELF).” C.A. App. 122. The FBI considered ELF and
other “eco-terrorists” to pose “one of the [Nation’s] most
serious domestic terrorism threats.” FBI, Putting Intel to Work Against ELF and ALF Terrorists (June 30,
3
2008) (noting the “sheer volume of their crimes” and
“increasingly violent rhetoric and tactics”), https://
perma.cc/3GFE-2DZC; see Horacio R. Trujillo, The
Radical Environmentalist Movement, in 2 Brian A.
Jackson et al., Aptitude for Destruction: Case Studies
of Organizational Learning in Five Terrorist Groups
141 (2005) (Terrorist Groups), https://perma.cc/JS8THSRW. ELF “aim[ed] to ‘inflict economic damage on
those profiting from the destruction and exploitation of
the natural environment’ ” and, by 2004, it “was setting
new records for property damage.” Anti-Defamation
League, Report, Ecoterrorism: Extremism in the Animal Rights and Environmentalist Movements (Feb. 2,
2005) (Ecoterrorism), https://perma.cc/7TUZ-TENC.
In congressional hearings focusing on ELF, an FBI
Deputy Assistant Director testified about that “serious
domestic threat[]” and explained that the FBI had “observed troubling signs” that “eco-extremists” could focus their efforts on “violence targeting human life.”
Eco-Terrorism Specifically Examining the Earth Liberation Front and the Animal Liberation Front: Hearing Before the Senate Comm. on Environment & Public
Works, 109th Cong., 1st. Sess. 11-12 (2005); see id. at
11-13, 38-40 (FBI testimony). He emphasized that the
FBI was “solely concerned” with those who pursue “environmental protection through force, violence, or criminal activity,” not those who engage in “[c]onstitutionally protected advocacy.” Id. at 11. And public statements, including by Pickering, appeared to “signal
[ELF’s] increased willingness to engage in more violent
protest acts.” Terrorist Groups 164; see id. at 160, 166
(discussing Pickering).
The 2004 FBI report explained that “Pickering advocates violence as a tool for social change” and that he
4
“resigned as [ELF’s] spokesperson citing philosophical
differences with respect to the legitimacy of violent action.” C.A. App. 122. In a 2004 television interview, for
instance, Pickering stated: “Violence is a necessary element of an oppressive struggle . . . to overthrow an oppressive government,” and “[ELF is] only part of a
larger building revolutionary movement that won’t stop
until it has a successful overthrow of this country.” Ecoterrorism, supra (brackets in original).
The 2004 FBI report noted that, after Pickering
resigned as ELF’s spokesperson, he and Craig Rosebraugh (another “subject of an [FBI] investigation”)
“co-founded Arissa.org,” which stated that “its primary
goal is ‘to create a social and political revolution in the
United States.’ ” C.A. App. 122. Arissa sold Pickering’s
and Rosebraugh’s books on its website, including Rosebraugh’s “The Logic of Political Violence” in which he
argued “that ‘revolution in the United States must be
comprised of a variety of strategies’ and that ‘it cannot
be successful without the implementation of violence.’ ”
Ecoterrorism, supra; cf. ibid. (discussing Rosebraugh’s
work for ELF and his advocacy of “large scale urban
riots” and “attack[s on] financial and media centers”
and “U.S. military establishments”).
The 2006 FBI report from Buffalo’s Joint Terrorism
Task Force, which was directed to the FBI’s Counterterrorism Division and Pittsburg field office, referenced
“ELF” and the August 2002 “destruction of property by
arson” at the “U.S. Forestry Service Scientific Lab,
Warren, PA.” C.A. App. 123 (some capitalization omitted).1 In response to questions from investigators, FBI
Cf. Josh Cotton, 20 Years Since Attack at Research Station in
Irvine, Times Observer (Warren, Penn.), Aug. 27, 2022 (reporting
1
5
officials reported that Pickering had moved from Portland, Oregon, to the Buffalo area in approximately June
2002. Id. at 124.
b. Both FBI reports included references to petitioner. They reported that petitioner was “a known associate” of Pickering, who had shared an apartment with
Pickering in the Buffalo area, C.A. App. 122, 124, and
“appear[ed] to be [an] active member[] of ARISSA.ORG,”
id. at 125. In a 2020 affidavit filed in this case, petitioner
states that he and Pickering are co-owners of Burning
Books, a Buffalo bookstore that he describes as “specializing in social justice struggles and state repression.” Pet. App. 22a (quoting C.A. App. 112); see Pet. 4.
In the affidavit, petitioner claims that he has been
“targeted by the FBI and several other federal, state,
and local law enforcement agencies for roughly two decades,” which he asserts is “a result of [his] First Amendment protected activities.” C.A. App. 113. More specifically, petitioner states that he was investigated in 2003
because of his environmental activism; was “the subject
of FBI probes” in 2004 and 2006 “because of [his] involvement with ARISSA”; and, most relevant here,
“was the subject of a federal eco-terrorism conspiracy
investigation [from 2012 to 2014] based on [his] association with Pickering.” Ibid.; see Pet. App. 22a-23a.
2. a. In 2016, petitioner’s counsel submitted a FOIA
request to the FBI seeking FBI records “relating or referring to [petitioner].” Pet. App. 23a (citation omitted).
The FBI identified 58 pages comprising 23 responsive
documents created in 2003, 2005, 2006, and 2012, and
released 54 of the pages in full or in part. Id. at 26a,
29a; see C.A. App. 109-110 (Vaughn index). Petitioner
that the newspaper had received a communique from ELF in 2002
“taking responsibility for the blaze”), https://perma.cc/SKW6-C2FG.
6
then filed this FOIA action in district court. See Pet.
App. 20a, 26a.
As relevant here, the FBI invoked FOIA Exemption
7 to justify some of its withholdings. Pet. App. 26a. Exemption 7 exempts from mandatory disclosure six categories of “records or information compiled for law enforcement purposes.” 5 U.S.C. 552(b)(7). The FBI invoked Exemption 7(C), (D), and (E), which exempts such
records to the extent that producing them (C) could reasonably be expected to constitute an unwarranted invasion of personal privacy; (D) could reasonably be expected to disclose the identity of a confidential source
or certain information furnished by a confidential source;
or (E) would disclose law-enforcement techniques, procedures, or guidelines that could reasonably be expected to risk circumvention of the law. Ibid.
The FBI’s supporting declarations (C.A. App. 15-55,
149-157) state that the responsive records satisfy Exemption 7’s threshold criterion because the FBI “compiled th[e] information for a law enforcement purpose”
during criminal investigations that “squarely fall within
the law enforcement duties of the FBI.” Id. at 32; see
id. at 151. The declarations explain that “all [of the records were] created in connection with Domestic Terrorism investigation activities or other potential illegal activities that could involve violence.” Pet. App. 39a
(quoting C.A. App. 152). First, the responsive records
“relate[] to [petitioner’s] association with individuals
being investigated for Domestic Terrorism activities.”
Ibid. (quoting C.A. App. 151-152). Second, some of the
records relate to “other sensitive [criminal] investigations involving individuals and organizations [petitioner] had an association with.” Ibid. (quoting C.A. App.
32). The declarations thus indicate that petitioner was
7
not the focus of the FBI’s criminal investigations generating the responsive records, but “[t]he FBI performed various law enforcement duties”—including
“surveillance” and “law enforcement database checks”—
“to investigate whether any illegal activity occurred.”
Ibid. (quoting C.A. App. 152) (brackets in original).
b. Petitioner submitted less than two pages of district court briefing to support his contention that the
FBI’s records were not compiled for law enforcement
purposes as required by Exemption 7. D. Ct. Doc. 20,
at 1-3 (Mar. 5, 2020) (Pet. S.J. Br.). Petitioner focused
exclusively on his contention that he was “investigated
as part of an FBI domestic terrorism * * * probe from
2012 through 2014 into * * * Pickering,” who was his
“Burning Books co-owner.” Id. at 1. He stated that he
was “the subject of [that] investigation * * * as a result
of his co-ownership of [the bookstore] and the vendetta
* * * against Pickering and him” pursued by two “former tenants” who had lived in an apartment behind the
bookstore. Id. at 2. More specifically, petitioner asserted that the former tenants had “contacted the FBI
in 2012,” which “led to the opening of [the] two-year DT
[i.e, domestic terrorism] investigation” into Pickering in
January of that year. Ibid.; C.A. App. 113.
Petitioner further asserted that, during that investigation of Pickering, petitioner was “subject to physical
surveillance” and “[u]ndercover agents and/or informants were sent to [the bookstore] to monitor events,”
“even though his activities and those taking place at [the
bookstore] were protected by the First Amendment.”
Pet. S.J. Br. 2. He stated that “the FBI must establish
that its investigative activities were realistically based
on a legitimate concern that federal laws have been or
may be violated or that national security may be
8
breached.” Ibid. And he concluded that Exemption 7
was inapplicable because the FBI records “pertaining
to [him] stem from political and not legitimate concerns
that federal laws may have been violated,” adding that
“[i]t appears that the FBI equates anyone concerned
about the environment, social justice, or the plight of
political prisoners, as being involved with domestic terrorism and/or extremist activities.” Id. at 3.
Petitioner’s contentions about the 2012-2014 investigation into Pickering implicate only five responsive documents totaling 17 pages, each of which the FBI created
in 2012. See C.A. App. 110. The FBI had already released four of the documents to petitioner with redactions: (1) an eight-page February 2012 FBI intelligence
report and (2) three FBI forms from April and August
2012 totaling seven pages, which document “spot check
surveillance” of “propert[ies].” Ibid. 2 The February 2012
report, created one month after petitioner contends the
FBI initiated its terrorism investigation into Pickering,
reflects that Pickering and others had been “named as
possibly being involved in a local eco-terrorist cell in
Buffalo.” Id. at 138 (reproducing excerpts from a prior
FOIA release of the report); see id. at 110.
c. A magistrate judge adjudicated the case with the
parties’ consent, Pet. App. 19a, and granted summary
judgment in favor of the government, id. at 19a-70a. As
relevant here, the judge concluded that, under FOIA
Exemption 7, the responsive FBI records were “compiled for law enforcement purposes,” 5 U.S.C. 552(b)(7),
notwithstanding petitioner’s challenge to the “[p]ropri1F
The FBI withheld in full the last responsive 2012 document, a
two-page FBI form “detailing information provided by [a] confidential source.” C.A. App. 110; cf. 5 U.S.C. 552(b)(7)(D).
2
9
ety” of the 2012-2014 “domestic terrorism” investigation. Pet. App. 36a; see id. at 36a-41a.
The magistrate judge observed that an agency invoking Exemption 7 must establish the exemption’s
“threshold requirement by demonstrating [that] ‘the
records sought were compiled for law enforcement purposes.’ ” Pet. App. 37a (quoting John Doe Agency v.
John Doe Corp., 493 U.S. 146, 148 (1989)). To do so, the
judge stated, the “agency must establish a rational
nexus between the agency’s activity in compiling the
documents and its law enforcement duties.” Ibid. (citation omitted). And in this case, the judge concluded, the
FBI’s declarations show that it created the responsive
records “in furtherance of [its] investigations of violations of federal laws”—more specifically, of “domestic
terrorism” or “other potential illegal activities that
could involve violence”—during which the FBI “performed various law enforcement duties * * * to investigate whether any illegal activity [had] occurred.” Id. at
39a (citations omitted).
The magistrate judge determined that, “[i]n [this]
case, ‘a more particularized justification’ ” is “not required.” Pet. App. 40a (citation omitted). The judge
noted that, “[a]cording to [petitioner], the investigation
conducted by the FBI between 2012 and 2014” into possible “domestic terrorism and eco-terrorism * * * was illegal because the activities being investigated consisted
of guest speakers at events promoting social justice and
the environment, as well as exposing the plight of political prisoners, all activities entitled to First Amendment
protection.” Id. at 36a. The judge stated that petitioner’s own assertions about “the FBI’s investigation”
are “sufficient[]” to “establish[]” that the records “were
compiled for law enforcement purposes.” Id. at 40a.
10
The magistrate judge also noted that “an agency’s
statement that records were compiled as a part of [its]
investigation” is “suffic[ient] to establish that [they]
were compiled for law enforcement purposes without
further factual findings.” Pet. App. 38a; see id. at 39a.
The judge added that “once the government has demonstrated that the records were compiled in the course of
an investigation conducted by a law enforcement
agency, the purpose or legitimacy of such executive action are not proper subjects for judicial review.” Id. at
38a-39a (quoting Halpern v. FBI, 181 F.3d 279, 296 (2d
Cir. 1999)).
3. On appeal, petitioner again focused only on his
contention that the FBI’s 2012 to 2014 “domestic terrorism investigation into * * * Pickering” had been opened
because “former tenants” of “an apartment behind Burning Books” had contacted the FBI and that, during the
investigation, “[t]he FBI spied on [petitioner]” and “monitor[ed] events” at the bookstore, “even though his activities and those taking place at Burning Books[] were
protected by the First Amendment.” Pet. C.A. Br. 4.
The court of appeals affirmed in a nonprecedential
summary order. Pet. App. 1a-8a. The court rejected
petitioner’s contention that the relevant FBI records
were compiled for “political reasons” and thus not “ ‘compiled for law enforcement purposes.’ ” Id. at 4a (citation
omitted). The court stated that it could not “ ‘engage in
a factual inquiry as to the legitimacy of a law enforcement purpose.’ ” Ibid. (citation omitted). The court
added that, under its precedents, it “must assume ‘that
all investigatory records of the FBI were compiled for
a law enforcement purpose,’ ” even if it might conclude
that “ ‘such records were compiled in the course of an
unwise, meritless or even illegal investigation.’ ” Ibid.
11
(citation omitted). The court noted that certain other
courts of appeals require “a rational nexus between the
investigative records and a legitimate law enforcement
purpose,” but it stated that its precedent does not require that inquiry. Id. at 4a n.2.
ARGUMENT
Petitioner contends (Pet. 14) that FOIA Exemption
7 cannot be satisfied by a “per se rule” that all “information compiled by law enforcement agencies” is “compiled for law enforcement purposes.” Petitioner further
contends (Pet. 7-14) that the courts of appeals are divided on how to apply Exemption 7 and that this Court’s
review is warranted. But the judgment of the court of
appeals in this case is correct. Petitioner contests, in
the abstract, the legal rule applied by the court of appeals, but there is no dispute here that the FBI in fact
conducted a domestic terrorism investigation for the
purpose of determining whether illegal activity had occurred after receiving information naming individuals
possibly involved in an eco-terrorist cell. Such an investigation is conducted, and the records created within it
are created, for “law enforcement purposes.” That is
true even if other non-law-enforcement purposes may
exist for the agency’s action and even if the agency’s
methods of investigation are assertedly unlawful. Although the courts of appeals have adopted different approaches for evaluating whether records created by a
criminal law enforcement agency like the FBI satisfy
Exemption 7’s threshold requirement, their differences
have the potential to affect only a limited number of
cases. Moreover, this case would not be a suitable vehicle for considering the lower courts’ divergent approaches because the documents here would be ex-
12
empted under either standard. The Court should therefore deny review.
1. FOIA generally requires a federal agency to
make agency records available to “any person” who has
submitted a “request for [such] records,” unless a FOIA
exemption or exclusion applies. 5 U.S.C. 552(a)(3)(A);
see 5 U.S.C. 552(b) (exemptions) and (c) (exclusions).
“[I]mportant interests [are] served by [FOIA’s] exemptions,” Food Mktg. Inst. v. Argus Leader Media, 588 U.S.
427, 439 (2019) (citation omitted; second set of brackets
in original), which reflect Congress’s judgment that
“public disclosure is not always in the public interest,”
CIA v. Sims, 471 U.S. 159, 167 (1985). The Court has
“consistently” “taken a practical approach” when interpreting FOIA’s exemptions to ensure that they “have
meaningful reach and application.” John Doe Agency v.
John Doe Corp., 493 U.S. 146, 152 (1989); see Food
Mktg. Inst., 588 U.S. at 439 (noting that FOIA exemptions should be given “ ‘a fair reading’ ” and not “narrowly construed”) (citation omitted).
Exemption 7 protects from mandatory disclosure
“records or information compiled for law enforcement
purposes,” where disclosure either could reasonably be
expected to, or would, produce any of six types of
harms. 5 U.S.C. 552(b)(7); see John Doe Agency, 493
U.S. at 156. The government must therefore show as a
threshold matter “the existence of such a compilation
for such a purpose” before Exemption 7 can apply. Id.
at 153. Here, petitioner does not dispute that the FBI
“compiled” the relevant records during its investigations into possible criminal violations. And the government has established that the FBI compiled those records “for law enforcement purposes.”
13
a. Exemption 7’s use of the unelaborated term “law
enforcement” in its threshold requirement, 5 U.S.C.
552(b)(7), includes, but is not limited to, “criminal law
enforcement.” See 5 U.S.C. 552(b)(7)(D) and (c)(2) (expressly addressing “criminal law enforcement” contexts
more specifically); H.R. Rep. No. 1497, 89th Cong., 2d
Sess. 11 (1966) (Exemption 7’s use of the term includes
the “enforcement of all kinds of laws, labor and securities laws as well as criminal laws”). Furthermore, the
ordinary understanding of “law enforcement” encompasses not only criminal prosecutions but also antecedent actions, including investigations conducted to determine whether a crime has been, or is the process of being, committed. Such investigations are a necessary
component of law enforcement that are critically important both to preventing the successful execution of
criminal plots and to prosecuting those who complete
their crimes. See S. Rep. No. 221, 98th Cong., 1st Sess.
23 (1983) (explaining that Congress deleted the term
“investigatory records” and replaced it with “records or
information” in Exemption 7’s threshold requirement to
extend the exemption to both “investigatory [and] noninvestigatory” records or information).
As a result, “if [an] investigation is for a possible violation of law, then the inquiry is for law enforcement
purposes,” and a record created as part of the investigation is likewise compiled for “law enforcement purposes.” Clemente v. FBI, 867 F.3d 111, 120 (D.C. Cir.
2017) (citation omitted). That is the case here. The
2012-2014 investigation that petitioner challenges was
an investigation into possible “violations of federal
laws” related to “Domestic Terrorism activities” in
which the “FBI performed various law enforcement duties * * * to investigate whether any illegal activity
14
[had] occurred.” Pet. App. 39a (quoting FBI declarations at C.A. App. 32, 152).
Petitioner himself contends that the “domestic terrorism investigation * * * was launched by the FBI [in
January 2012] on the basis of information provided by
[two former tenants].” Pet. C.A. Br. 5; see Pet. S.J. Br.
1-2; Pet. App. 22a-23a, 36a. The already-released records
reflect that, by February 2012, the FBI had obtained
information that “named [Pickering and other individuals] as possibly being involved in a local eco-terrorist
cell in Buffalo.” C.A. App. 138 (excerpts of FBI intelligence report previously released under FOIA); see id.
at 110 (noting that the same February 2012 report released to petitioner discusses “Pickering * * * and other
individuals as [potentially] being involved in a local terrorist cell in Buffalo”). Petitioner has also acknowledged that the investigation was, in fact, into individuals’ “possible involvement in domestic terrorism.” Pet.
App. 36a. And petitioner has never questioned the veracity of the FBI’s declarations stating that all responsive records were “created in connection with Domestic
Terrorism investigation activities or other potential illegal activities that could involve violence” in which the
FBI sought to determine “whether any illegal activity
[had] occurred.” Id. at 39a (quoting C.A. App. 152).
b. Petitioner’s challenge to the FBI’s domestic terrorism investigation has instead been twofold: First,
he has suggested that the relevant investigation could
have been inspired by purposes beyond that of determining whether illegal activity had occurred; and second,
he has argued that the FBI’s investigative methods—
particularly the purported surveillance of events implicating First Amendment expression—were unlawful.
See Pet. C.A. Br. 4-5; Pet. S.J. Br. 2-3. But neither chal-
15
lenge undermines the conclusion that the relevant records were “compiled for law enforcement purposes.”
First, an agency record created within an investigation into potential crimes is a record compiled for “law
enforcement purposes,” even if it is also created for
other purposes. “The text of Exemption 7 does not require that the information be compiled solely for law enforcement purposes.” Milner v. Department of the Navy,
562 U.S. 562, 584 (2011) (Alito, J., concurring). This
Court, for instance, has held that Exemption 7’s protections extend equally to (1) a “document not created for
law enforcement purposes” when it incorporates a record or information previously “compiled for law enforcement purposes” and (2) a document “ ‘compiled for
law enforcement purposes’ ” when it incorporates a record or information previously “collected by the Government * * * for non-law-enforcement purposes.” John
Doe Agency, 493 U.S. at 153, 157 (emphases added).
And because Exemption 7 applies if information was
compiled for non-law-enforcement purposes before or
after the information was created for law-enforcement
purposes, it follows that the exemption must also apply
to a record or information simultaneously compiled for
law-enforcement purposes and for non-law-enforcement
purposes.
Other decisions confirm that conclusion. The D.C.
Circuit, for instance, has determined that Exemption 7
applies to FBI documents generated in an FBI counterintelligence program against “black nationalist groups”
like the Black Panthers—even though the court was
troubled by “many” of the program’s six stated “goals,”
which included “discrediting” the “groups and [their]
leaders”—because one of the program’s goals was “the
prevention of violence,” which is a law enforcement pur-
16
pose. Pratt v. Webster, 673 F.2d 408, 422-423 (1982).
The D.C. Circuit has likewise determined that “if [an]
investigation is for a possible violation of law,” a record
created as part of the investigation is compiled for “law
enforcement purposes,” even if the investigation is also
purportedly used to obtain information “for unlawful
purposes.” Clemente, 867 F.3d at 120. There appears
to be no disagreement among the courts of appeals, much
less a square conflict, on that point.
That principle makes good sense, particularly because Exemption 7 additionally requires the government to establish one of the six types of harms specified
in subparagraphs (A) through (E) of Section 552(b)(7)
before the exemption will excuse disclosure. For example, Exemption 7(B) bars compelled disclosure if it
“would deprive a person of a right to a fair trial.”
5 U.S.C. 552(b)(7)(B). Exemption 7(D) applies if disclosure “could reasonably be expected to disclose the identity of a confidential source.” 5 U.S.C. 552(b)(7)(D). Exemption 7(E) permits withholding when disclosure of
law-enforcement techniques, procedures, or guidelines
“could reasonably be expected to risk circumvention of
the law,” 5 U.S.C. 552(b)(7)(E). And Exemption 7(F)
ensures that FOIA does not compel disclosure if it
“could reasonably be expected to endanger the life or
physical safety of any individual.” 5 U.S.C. 552(b)(7)(F).
So long as a record is compiled for a law enforcement
purpose—even if additional non-qualifying purposes
might be asserted—there is no sound reason to believe
that Congress would have wanted to compel FOIA disclosures that would deprive individuals of fair trials,
would be expected to reveal (and risk the safety of ) confidential informants, would risk future circumvention of
the law, or would endanger the very lives and safety of
17
individuals who government agencies should protect.
Any other conclusion would fail to follow the Court’s established “practical approach” to interpreting Exemption 7. John Doe Agency, 493 U.S. at 157.
Petitioner has asserted that the FBI’s 2012-2014 domestic terrorism investigation “stem[med] from political and not legitimate concerns that federal laws may
have been violated” based on his belief that “the FBI
equates anyone concerned about the environment, social justice, or the plight of political prisoners, as being
involved with domestic terrorism and/or extremist activities.” Pet. S.J. Br. 3; see Pet. C.A. Br. 5. But petitioner has proffered no evidence to support his belief or
to overcome the FBI’s declarations showing that the
FBI investigated possible violations of criminal law.
Under petitioner’s own theory, the individuals who
prompted the FBI’s instigation—which petitioner himself contends is a “domestic terrorism” investigation
“into Burning Books co-owner * * * Pickering”—were
“former tenants” who had a “vendetta * * * against
Pickering and him.” Pet. S.J. Br. 1-2. Petitioner’s position has thus been that he was subjected to the investigation “as a result of his co-ownership of [the bookstore] and th[at] vendetta.” Id. at 2 (emphasis added).
But that theory does not suggest that the FBI lacked a
“law enforcement purpose” when it investigated information supplied to it by individuals about potential
crimes. Quite the contrary, as the D.C. Circuit has long
recognized, a “criminal law enforcement agency” like
the FBI “often must act upon unverified tips and suspicions based on mere tidbits of information.” Pratt, 673
F.2d at 421; see Doe v. FBI, 936 F.2d 1346, 1355 (D.C.
Cir. 1991). That is especially true if the FBI receives
information about a possible eco-terrorist cell involving
18
an individual like Pickering, who had advocated violence
as a tool for social change and served as the spokesperson for a leading eco-terrorist group (ELF). See pp. 24, supra. In any event, even if petitioner had established that the investigation “stem[med] from political
* * * concerns that federal laws may have been violated,” Pet. C.A. Br. 5, the records here were compiled
for a “law enforcement purpose” because the investigation sought to determine whether “federal laws may
have been violated” (ibid.) notwithstanding the (unsubstantiated) possibility that the investigation might have
also been for some politically rooted purpose.
Second, petitioner has suggested that the FBI’s investigative methods were illegal because, during the
FBI’s domestic terrorism investigation into Pickering,
petitioner was “subject to physical surveillance” and
“[u]ndercover agents and/or informants were sent to
[the bookstore] to monitor events,” “even though his activities and those taking place at [the bookstore] were
protected by the First Amendment.” Pet. S.J. Br. 2; see
Pet. App. 36a; Pet. C.A. Br. 4-5. But even if petitioner
had supplied admissible non-hearsay evidence to support that factual contention (he did not), the contention
concerns merely actions that the FBI purportedly took
after it initiated its investigation to determine whether
possible violations of criminal law had occurred based
on information naming Pickering and others as part of
an eco-terrorism cell. The propriety of a “law enforcement method”—such as surveillance—does not speak to
the “law enforcement purpose” for the investigation in
which the surveillance occurred. Pratt, 673 F.2d 422
(“[W]hatever we may think of the FBI’s methods,” they
cannot show the FBI’s activities “lacked any law enforcement purpose.”).
19
c. The court of appeals correctly affirmed the grant
of summary judgment here because, in contexts such as
this in which no one disputes that a law-enforcement
agency like the FBI has actually conducted an investigation in order to determine whether criminal violations
have occurred, the records generated in that investigation are compiled for a “law enforcement purpose.” In
this context, the court of appeals was correct to decline
to engage in a further “factual inquiry as to the legitimacy of [the] law enforcement purpose” that might have
evaluated whether the FBI’s investigation was “unwise,
meritless or even illegal.” Pet. App. 4a (citations omitted). If Congress had wanted to require such a retrospective examination of the basis for investigation in
contexts in which an agency responsible for criminal law
enforcement has, in fact, conducted an investigation to
determine whether crimes have been committed, it
would have added statutory text to require more than
the mere compilation of a record for a “law enforcement” purpose. Cf., e.g., 5 U.S.C. 552(b)(7)(D) (limiting
exemption for information supplied by a confidential
source to information compiled in either a “criminal investigation” or a “lawful national security intelligence
investigation”) (emphasis added).
2. Petitioner contends (Pet. 14-15) that a law enforcement agency might conduct an investigation only
for reasons other than law enforcement and concludes
that, when that is the case, the associated records are
not compiled “for law enforcement purposes.” But even
assuming that position to be correct, it is irrelevant
here, because petitioner never argued below that the
FBI’s domestic terrorism investigation was not conducted to determine whether criminal violations had occurred. And as explained above, any other purported
20
motivations for conducting an investigation that is actually aimed at discovering violations of criminal law
would be irrelevant to Exemption 7’s threshold inquiry.
Petitioner separately suggests (Pet. 19 & n.6) for the
first time in this case that the FBI’s declarations were
“too vague” to show that disputed records were compiled for law enforcement purposes. But petitioner’s arguments about Exemption 7’s threshold requirement
totaled less than two pages in district court, Pet. S.J.
Br. 1-3, and barely two pages on appeal, Pet. C.A. Br. 35—none of which challenged the sufficiency of the FBI’s
declarations or their level of detail. Had petitioner done
so, the parties could have litigated that issue and the
FBI could have supplemented its declarations. But petitioner forfeited any such challenge both in district
court and on appeal. The issue is therefore not properly
before this Court. See Cutter v. Wilkinson, 544 U.S.
709, 718 n.7 (2005) (“[W]e are a court of review, not of
first view.”).
3. Petitioner contends (Pet. 7-14) that review is warranted because the courts of appeals have adopted two
different approaches for evaluating the evidence relevant to whether records created by a law-enforcement
agency were “compiled for law enforcement purposes,”
5 U.S.C. 552(b)(7). Many aspects of the Second Circuit’s
decision do not implicate those differences in approach,
including its decision not to review the “legitimacy of a
law enforcement purpose” based on whether the investigation here was “unwise, meritless, or even illegal.” Pet.
App. 4a (citations omitted). In any event, those differences, which have existed for over 40 years, have the
potential to affect the disposition of only a limited number of cases. And this case would not be a suitable vehicle to consider the differing approaches because, un-
21
der either, the records at issue would satisfy Exemption
7’s threshold inquiry.
a. Several courts of appeals, including the Second
Circuit, have determined that “all records of investigations compiled by [a law enforcement agency like] the
FBI are for law enforcement purposes.” Halpern v.
FBI, 181 F.3d 279, 296 (2d Cir. 1999) (citing, e.g., Williams v. FBI, 730 F.2d 882, 883 (2d Cir. 1984)); see, e.g.,
Jordan v. DOJ, 668 F.3d 1188, 1193-1197 (10th Cir.
2011), cert. denied, 566 U.S. 998 (2012); Jones v. FBI, 41
F.3d 238, 245-246 (6th Cir. 1994); Curran v. DOJ, 813
F.2d 473, 475 (1st Cir. 1987) (citing Irons v. Bell, 596
F.2d 468, 475 (1st Cir. 1979)); Kuehnert v. FBI, 620 F.2d
662, 666-667 (8th Cir. 1980). In other words, once the
government has established that the relevant records
were compiled in such an investigation, no further “factual inquiry” is required to conclude that they were
compiled for law enforcement purposes. Pet. App. 4a.
That approach is sound where, as here, the agency has
actually conducted an investigation to determine
whether a violation of criminal law has occurred. Such
an investigation, as discussed above, is a “law enforcement” activity and the records produced within it are
compiled for law enforcement purposes.
Three courts of appeals take a different approach.
The D.C. Circuit has determined that, when records
from a criminal law enforcement agency are at issue,
Exemption 7’s threshold is satisfied if (1) the relevant
agency record is connected to “an inquiry into ‘a possible security risk or violation of federal law’ ” and (2) “a
‘rational nexus’ [exists] between the inquiry and ‘one of
the agency’s law enforcement duties.’ ” Clemente, 867
F.3d at 119 (quoting Pratt, 673 F.2d at 420-421). The
Third and Ninth Circuits also follow that approach. See
22
Davin v. DOJ, 60 F.3d 1043, 1056 (3d Cir. 1995) (adopting the standard in Pratt); Rosenfeld v. DOJ, 57 F.3d
803, 808 & n.5 (9th Cir. 1995) (citing Pratt and explaining that the Ninth Circuit’s “rational nexus” standard
“closely” resembles the D.C. Circuit’s).
But the rational-nexus test, as its name suggests,
does not impose a high bar. Since 1982, the D.C. Circuit
has emphasized two important principles guiding its application. First, the concept of “ ‘law enforcement purpose’ ” should be interpreted “broadly” to encompass investigatory activities not “wholly unrelated” to the
agency’s responsibilities. Pratt, 673 F.2d at 420. And
second, courts must apply a “deferential standard” to
“claims of ‘law enforcement purpose’ made by a criminal
law enforcement agency.” Id. at 419. A criminal law
enforcement agency therefore satisfies the rationalnexus test where (1) the relevant record is connected to
an agency investigation and (2) “some plausible basis”
or “ ‘colorable claim’ ” exists for concluding that the investigation was “realistically based on a legitimate concern that federal laws may have been violated.” Id. at
421. The Third and Ninth Circuits apply a similarly deferential standard. See, e.g., Davin, 60 F.3d at 1055-1056
(stating that the “ ‘necessarily deferential’ ” test requires
only “some plausible basis” for the investigation) (quoting Pratt, 673 F.2d at 421-422); Rosenfield, 57 F.3d at
808 (warning that courts “should not ‘second-guess a
law enforcement agency’s decision to investigate if there
is a plausible basis for the decision’ ”) (citation omitted).
b. The two approaches to evaluating evidence relevant to Exemption 7’s threshold criterion will yield no
difference in outcome in the mine run of cases in which
a criminal law enforcement agency invokes Exemption
7. There will typically be no significant dispute about
23
whether records of a criminal law enforcement agency
created during an investigation by that agency were
compiled for law enforcement purposes. Every FOIA
action may be filed in the District of Columbia, 5 U.S.C.
552(a)(4)(B), yet the D.C Circuit itself observed in Pratt
that there were “few occasions” for it to “ascertain the
presence or absence of a ‘law enforcement purpose’ for
FOIA Exemption 7.” Pratt, 673 F.2d at 419.
The subset of Exemption 7 cases in which the difference between the two approaches could produce different results is even smaller. Even the more-plaintifffriendly rational-nexus test ultimately applies a deferential standard. “[I]t is hard to imagine” that FOIA requestors invoking the D.C. Circuit’s rule could often
succeed in challenging whether a record was compiled
for law enforcement purposes “given the loose standard
of need that will justify opening an investigation.” John
Doe Agency, 493 U.S. at 163 (Scalia, J., dissenting)
(comparing the D.C. Circuit’s decision in Pratt with the
Second Circuit’s decision in Williams). Moreover, although petitioner notes (Pet. 12) that agencies deny a
significant number of FOIA requests under Exemption
7, no sound reason exists to suspect that the government’s administrative processing of FOIA requests involving records created during an investigation by a
criminal law enforcement agency has been affected by
the existence of the two differing judicial approaches.
Such administrative processing occurs in a legal framework under which every FOIA requestor is entitled to
bring suit in the District of Columbia, where the rational-nexus approach governs. See 5 U.S.C. 552(a)(4)(B).
That reality has presumably further reduced the subset
of cases that reach litigation in which the differing
standards could have a material effect on the outcome.
24
Petitioner’s assertion (Pet. 13) that law enforcement
agencies have “at times” engaged in “investigations or
other activities” that do not have a law enforcement purpose provides no basis for review in this case. This case
concerns an investigation (not other activities), and petitioner does not dispute that the investigation was conducted to determine whether a crime had been, or was
being, committed. And despite the fact that the courts
of appeals’ differing approaches have coexisted for over
40 years, petitioner has failed to show that the difference affects the outcome in any significant number of
cases involving records from actual criminal investigations by law enforcement agencies.
c. Finally, this case would be an unsuitable vehicle
for the Court to examine the two differing approaches
to Exemption 7’s threshold inquiry. To the extent that
the Court may wish to consider the issue because of its
potential to affect the outcome in some fraction of cases,
this case does not offer an appropriate opportunity to
examine the difference because it satisfies the rationalnexus test that petitioner advocates. See The Monrosa
v. Carbon Black Exp., Inc., 359 U.S. 180, 184 (1959)
(“[T]his Court decides questions of public importance”
only “in the context of meaningful litigation.”).
Petitioner has litigated this case solely on the ground
that FBI records compiled during a domestic terrorism
investigation that began in January 2012 were not
“compiled for law enforcement purposes” under Exemption 7. See pp. 7-8, 10, supra. His theory has been
that the FBI’s relevant investigation was “an FBI domestic terrorism probe * * * into Burning Books coowner * * * Pickering,” which was opened based on information supplied by two former tenants. Pet. C.A. Br.
3-4; C.A. App. 113; see Pet. S.J. Br. 1-2. A February
25
2012 FBI intelligence report indicates that the FBI had
received information specifically “nam[ing]” Pickering
and others “as possibly being involved in a local eco-terrorist cell in Buffalo.” C.A. App. 138; see id. at 110 (similarly describing the same February 2012 report); see p.
14, supra. Another FBI report explains that Pickering
—who “advocates violence as a tool for social change”—
had been the “former spokesperson” for “ELF” but had
resigned from that role because the group did not sufficiently align with his views on “the legitimacy of violent
action.” C.A. App. 122. The FBI had long considered
ELF and similar groups to pose a significant domestic
terrorism threat. See pp. 2-4, supra. And petitioner—
who had both lived with Pickering and co-owned the
Burning Books bookstore with him—simply contends
that he was investigated “as part of ” the FBI’s probe
“into * * * Pickering.” Pet. S.J. Br. 1; see Pet. C.A. Br.
3. That theory is consistent with the FBI’s declarations,
which explain that the responsive documents relate to
“[petitioner’s] association with individuals being investigated for Domestic Terrorism activities” and that the
FBI had “performed various law enforcement duties
* * * to investigate whether any illegal activity occurred.” C.A. App. 151-152; see id. at 32.
That is sufficient to satisfy the rational-nexus standard because (1) the relevant records were created as
part of the FBI’s 2012 domestic terrorism investigation
into Pickering and (2) the evidentiary record here reflects a “ ‘colorable’ ” or “plausible basis” for concluding
that the investigation was “realistically based on a legitimate concern that federal laws may have been violated.” Pratt, 673 F.2d at 421.3 As the magistrate judge
When the record supports a “plausible criminal investigatory
reason to investigate,” a FOIA requestor may refute that showing
3
26
observed after explaining that Exemption 7’s threshold
requirement requires “ ‘a rational nexus between the
[FBI’s] activity in compiling the documents and its law
enforcement duties,’ ” “[petitioner’s] own averments
* * * sufficiently establish[] the records responsive to
[his] FOIA Request were compiled for law enforcement
purposes.” Pet. App. 37a, 40a (citation omitted).
CONCLUSION
The petition for writ of certiorari should be denied.
Respectfully submitted.
D. JOHN SAUER
Solicitor General
BRETT A. SHUMATE
Assistant Attorney General
DANIEL TENNY
BEN LEWIS
Attorneys
MAY 2026
with “persuasive evidence” that the investigation was conducted
only for a “nonqualifying reason,” such as evidence that it was “explicitly conducted * * * for purposes of harassment.” Shaw v. FBI,
749 F.2d 58, 63 (D.C. Cir. 1984) (Scalia, J.) (emphasis added). Petitioner, however, has presented no such evidence that the FBI’s
2012-2014 domestic terrorism investigation was not in fact conducted to determine whether criminal offenses had been committed.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.