939 F.3d 1164
11th Cir.2019Background
- Broward Bulldog and its founder sought FOIA records (2015) related to the FBI’s review of a Florida Saudi family and the 9/11 Review (Meese) Commission; they alleged the FBI concealed ties to the hijackers.
- The FBI produced hundreds of pages but redacted material under multiple FOIA exemptions (notably Exemptions 1, 3, 5, 6, 7(C), 7(D), and 7(E)); Broward Bulldog challenged redactions and the adequacy of the FBI search.
- The district court accepted much of the FBI’s justification, ordered disclosure of most personal-identifying data redacted under Exemptions 6 and 7(C) and some 7(D) material, and upheld many other redactions; the FBI appealed and Broward Bulldog cross-appealed.
- The Eleventh Circuit reviewed: (1) adequacy of the FBI’s search; (2) sufficiency of the factual record (Vaughn indices, declarations, in camera review); and (3) applicability of various exemptions to specific redactions.
- The panel affirmed in part, reversed in part, and remanded: it held the search was adequate; it upheld most Exemption 1/3, 5, and 7(E) rulings but reversed the district court on many 7(C) and some 7(D) findings and remanded for limited further proceedings.
Issues
| Issue | Broward Bulldog (Plaintiff) Argument | FBI / DOJ (Defendant) Argument | Held |
|---|---|---|---|
| Adequacy of search | FBI failed to search investigative repositories, produced documents late and piecemeal, missed transcripts | FBI submitted detailed declarations showing searches of Commission storage, central records, and records unit; search was reasonably calculated | Search adequate; agency met its burden; no adverse inference from late/piecemeal production |
| Exemptions 1 & 3 (classified/statutory) | Court must perform de novo review; agency assertions cannot be deferred to | National-security and statutorily exempt materials warrant substantial weight to agency declarations | District court properly afforded deference and upheld redactions under Exemptions 1 and 3 |
| Exemption 7(C) (personal privacy) | Public interest in disclosure (government performance, alleged 9/11 ties) outweighs privacy; many redactions unjustified | Names, addresses, phone numbers and identifying details risk harassment/stigmatization and are protected; privacy apex for private citizens in investigations | Court reversed the district court: names/addresses/phones and similarly clear identifiers may be withheld; remanded non-name, potentially identifying items for district-court factual assessment of identifiability and balancing |
| Exemption 7(D) (confidential sources) | Some source identities and notes are already public or not covered by implied confidentiality | Sources who provided terrorism/violent-crime information reasonably inferred confidentiality; 7(D) protects source ID even if identity later publicly known | 7(D) applies to the jailhouse informant material in documents 2 and 27 (rejecting district-court split); 7(D) does not apply to a security-guard who spoke publicly, though his identity can be withheld under 7(C) |
| Exemption 7(E) & Exemption 5 (techniques/procedures; deliberative) | Much of the slideshow and briefing are factual and public and do not reveal techniques or deliberative recommendations | Slides and briefings reveal investigative/analytical methodologies, vulnerabilities, and targeting priorities; withholding prevents circumvention | Majority upheld most 7(E) redactions (document 22) as revealing techniques/methodology; but reversed protection for certain slides (13 remanded for factual supplementation; slides 56–57 are factual and not covered by Exemption 7(E) or Exemption 5) and remanded for limited further fact-finding |
Key Cases Cited
- Miccosukee Tribe of Indians of Fla. v. United States, 516 F.3d 1235 (11th Cir. 2008) (standards for adequacy of FOIA search, methods to provide factual basis)
- Ray v. U.S. Dep’t of Justice, 908 F.2d 1549 (11th Cir. 1990) (agency may meet search-burden with detailed affidavits; reasonableness standard)
- Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973) (Vaughn index concept linking withheld material to exemption justifications)
- Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157 (2004) (Exemption 7(C) balancing; public interest must be significant and tied to government performance)
- Milner v. Dep’t of Navy, 562 U.S. 562 (2011) (FOIA exemptions are exclusive and construed narrowly)
- Landano v. United States, 508 U.S. 165 (1993) (Exemption 7(D) requires showing express or implied assurance of confidentiality)
- Cent. Intelligence Agency v. Sims, 471 U.S. 159 (1985) (courts accord substantial weight to agency affidavits regarding intelligence sources and methods)
- Reporters Comm. for Freedom of Press v. U.S. Dep’t of Justice, 489 U.S. 749 (1989) (limits on FOIA public-interest inquiry; focus on shedding light on government conduct)
- L & C Marine Transport, Ltd. v. United States, 740 F.2d 919 (11th Cir. 1984) (Exemption 7(D) protections and limits on waiver/public-domain arguments)