Islamic Shura Council v. Federal Bureau of Investigation
635 F.3d 1160
9th Cir.2011Background
- FOIA case where FBI sought to withhold documents; plaintiffs sought information on investigations/surveillance.
- Initial FBI searches yielded limited responsive documents; some were redacted under exemptions (b(2), b(6), b(7)(C)).
- District court ordered in camera review to assess 'outside the scope' redactions after discovering additional responsive documents not disclosed earlier.
- Two ex parte in camera proceedings revealed the government had misrepresented the extent of disclosure to the court and plaintiffs.
- District court issued a sealed, ex parte order unsealing certain information but decided most disclosures were proper; government appealed the unsealing.
- This court has jurisdiction to review the government's mandamus/ collateral-order appeal and ultimately vacates/remands for revision of the Sealed Order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Sealed Order must be unsealed | Islamic Shura argues unsealing is proper since content is nonclassified. | FBI contends Sealed Order contains sensitive information justifying secrecy. | Unsealing order vacated; remanded to revise to remove national security/sensitive material. |
| Whether the Sealed Order can be kept from plaintiffs and counsel under FOIA | Nonclassified materials should be disclosed to plaintiffs/counsel under due process. | Exemptions and national security concerns justify keeping the order sealed from all parties. | Sealed Order cannot be disclosed in full; must be revised to exclude exempt material before unsealing. |
| Whether the court has jurisdiction to review the appeal via mandamus | Appeal is appropriate for collateral review of secrecy order. | Request for mandamus is appropriate due to need to correct sealing errors. | The court has mandamus jurisdiction under the All Writs Act to review the sealing decision. |
Key Cases Cited
- Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973) (allows in camera review to assess withholding in FOIA actions)
- Envtl. Protection Agency v. Mink, 410 U.S. 73 (Supreme Court 1973) (requires detailed agency affidavits to justify exemptions)
- Lane v. Dep't of Interior, 523 F.3d 1128 (9th Cir. 2008) (courts may examine disputed documents in camera for exemptions)
- Arieff v. U.S. Dep't of Navy, 712 F.2d 1462 (D.C. Cir. 1983) (rejects protective-order-like access to exempt material in FOIA)
- Mohawk Indus., Inc. v. Carpenter, 130 S. Ct. 599 (U.S. 2010) (collateral-order/mandamus considerations in sealing/withholding context)