E. Schoenberg v. Fbi
2 F.4th 1270
| 9th Cir. | 2021Background
- In Oct. 2016 the SDNY issued a sealed search warrant for emails on Anthony Weiner’s laptop as part of an investigation into Hillary Clinton’s email practices; the FBI requested the seal and the court granted it.
- E. Randol Schoenberg filed a FOIA request to the FBI for the warrant materials; the SDNY first released heavily redacted materials (first release) and later, at the FBI’s request to facilitate an OIG report, released less-redacted materials (second release).
- The FBI provided redacted copies to Schoenberg, citing FOIA Exemption 7(C) and the SDNY sealing order as grounds for nondisclosure; Schoenberg administratively appealed and then sued in the C.D. Cal.
- The 2018 OIG report publicly disclosed much of the same information; Schoenberg prevailed to the extent some information was unredacted in the second release but not in the OIG report.
- The district court found Schoenberg a prevailing party eligible for fees but denied attorney’s fees after weighing the FOIA fee-entitlement factors: the first three favored fees, but the fourth (reasonableness of the government’s withholding) disfavored fees and outweighed the others.
- The Ninth Circuit affirmed, applying a deferential two-step review (assess each factor for abuse of discretion; then review the balancing for abuse of discretion) and concluding the FBI reasonably relied on the SDNY sealing order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the government's withholding had a "reasonable basis in law" (fourth fee-entitlement factor) | Schoenberg: FBI’s reliance on the SDNY sealing order and Exemption 7(C) was unreasonable and insufficiently explained | FBI/SDNY: Reliance on the sealing order (and Exemption 7(C)) was colorable; GTE Sylvania and Morgan support nondisclosure where a seal functions like an injunction | Court: District court reasonably concluded FBI’s reliance on the SDNY sealing order was colorable; fourth factor disfavors fees |
| Whether the district court abused its discretion in balancing the four fee-entitlement factors | Schoenberg: First three factors favored fees and should prevail | FBI: Fourth factor reasonably outweighed the others; district court has broad discretion to weigh sliding-scale factors | Court: Affirmed — balancing was within district court’s broad discretion; not a rare case warranting reversal |
| Standard of appellate review for FOIA fee denials | Schoenberg: District court erred in analysis/balancing | Government: Apply deferential two-step approach (assess each factor, then balancing) | Court: Adopts Morley two-step approach; reviews each factor and the balancing for abuse of discretion |
Key Cases Cited
- Hiken v. Dep’t of Defense, 836 F.3d 1037 (9th Cir. 2016) (sets FOIA fee-eligibility factors and explains district court discretion on fees)
- Morley v. CIA, 894 F.3d 389 (D.C. Cir. 2018) (two-step review framework for FOIA fee-denial appeals)
- GTE Sylvania, Inc. v. Consumers Union, 445 U.S. 375 (1980) (an injunction or binding order can prevent agency disclosure under FOIA)
- Morgan v. U.S. Dep’t of Justice, 923 F.2d 195 (D.C. Cir. 1991) (a court seal alone does not justify nondisclosure unless it functions like an injunction)
- Church of Scientology of Cal. v. U.S. Postal Serv., 700 F.2d 486 (9th Cir. 1983) (describes when withholding lacks a colorable legal basis for fee considerations)
- United Ass’n of Journeymen & Apprentices v. Dep’t of Army, Corps of Eng’rs, 841 F.2d 1459 (9th Cir. 1988) (agency must analyze relevant law when claiming exemptions)
- United States v. Hinkson, 585 F.3d 1247 (9th Cir. 2009) (defines abuse-of-discretion review standard)
- Long v. IRS, 932 F.2d 1309 (9th Cir. 1991) (district court may consider additional factors in awarding FOIA fees)