937 F.3d 1284
9th Cir.2019Background:
- Plaintiff Eric Garris is the founder/webmaster of Antiwar.com; two FBI "threat assessment" memoranda referenced Garris and Antiwar.com (a 2004 Memo and a 2006 Halliburton Memo).
- The 2004 Memo documented Antiwar.com postings of what appeared to be FBI watch lists and summarized Garris’s political writings and search results; Newark recommended a preliminary investigation but the San Francisco office declined, concluding the materials were public and constituted protected First Amendment activity.
- The 2006 Halliburton Memo described security planning for a Halliburton shareholders meeting and listed Antiwar.com among public sources covering planned protests; it was used to coordinate with local law enforcement.
- Garris sued under the Privacy Act, 5 U.S.C. § 552a(e)(7), seeking expungement of records describing First Amendment activity; district court granted summary judgment to FBI on the expungement claims; Garris appealed.
- On appeal the Ninth Circuit held that § 552a(e)(7) permits maintenance of records describing First Amendment activity only if the maintenance is pertinent to a currently ongoing authorized law enforcement activity; applied that rule to require expungement of the 2004 Memo but to allow retention of the Halliburton Memo.
- The court also addressed discovery and evidentiary objections: it upheld the district court’s protective-order limitation on depositions and found parts of the FBI declarations admissible while rejecting speculative portions.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 552a(e)(7) permits maintenance of records that were once pertinent but are no longer tied to an ongoing law enforcement activity | Garris: maintenance must be pertinent to an ongoing authorized law enforcement activity; otherwise §(e)(7) is violated | FBI: pertinence at time of collection suffices; no temporal maintenance requirement | Held: Maintenance must be pertinent to a currently ongoing authorized law enforcement activity (Ninth Circuit en banc interpretation for this appeal) |
| Whether the 2004 Memo is exempt from §(e)(7) because its maintenance is pertinent to an ongoing law enforcement activity | Garris: the investigation ended with a finding of only protected First Amendment activity; maintenance is not pertinent | FBI: retention could inform ongoing/future investigations and thus is permissible | Held: 2004 Memo must be expunged—FBI failed to show maintenance is pertinent to any ongoing authorized activity |
| Whether the Halliburton Memo is exempt from §(e)(7) | Garris: listing Antiwar.com implicates First Amendment protections and requires expungement | FBI: memo is about public-safety coordination for a recurring event; inclusion of media sources is incidental and pertinent | Held: Halliburton Memo may be retained—maintenance is pertinent to ongoing public-safety/law-enforcement coordination |
| Whether the district court abused its discretion on discovery and declaratory evidence (protective order; Campi and Bujanda declarations) | Garris: protective order improperly denied depositions; Campi and Bujanda lacked personal knowledge for key statements | FBI: depositions burdensome and unnecessary; declarations sufficient | Held: protective order not an abuse; Campi declaration contained inadmissible speculation (court disregarded those parts) but other portions were admissible; Bujanda declaration properly considered |
Key Cases Cited
- MacPherson v. IRS, 803 F.2d 479 (9th Cir. 1986) (interprets §(e)(7) and requires case-by-case weighing of factors for maintaining First Amendment records)
- J. Roderick MacArthur Found. v. FBI, 102 F.3d 600 (D.C. Cir. 1996) (panel majority held no separate maintenance temporal requirement under §(e)(7); considered and rejected by Ninth Circuit here)
- Becker v. IRS, 34 F.3d 398 (7th Cir. 1994) (rejected retention justified solely by speculative future use)
- Bassiouni v. FBI, 436 F.3d 712 (7th Cir. 2006) (upheld retention where records were pertinent to ongoing counterterrorism investigations)
- Lahr v. Nat’l Transp. Safety Bd., 569 F.3d 964 (9th Cir. 2009) (discusses FOIA affidavit personal-knowledge standard relied upon by district court)
- Lane v. Dep’t of Interior, 523 F.3d 1128 (9th Cir. 2008) (addressed limits on discovery in FOIA and Privacy Act cases)