Labow v. United States Department of Justice
2016 U.S. App. LEXIS 14372
| D.C. Cir. | 2016Background
- In 2011 Jeffrey Labow filed a FOIA request with the FBI for records concerning himself after an agent identified him as an anarchist extremist in a deposition.
- The FBI located hundreds of pages responsive to Labow (and over a thousand pages concerning a third party) and released some records while withholding or redacting others under various FOIA exemptions and a possible statutory exclusion.
- The FBI asserted Exemption 3 (statutory withholding) for materials tied to pen register orders and grand‑jury subpoenas, Exemption 7(D) for informant identities, and other exemptions; the district court reviewed some material in camera and granted the FBI summary judgment on all contested withholdings.
- Labow appealed, challenging (inter alia) the FBI’s reliance on the Pen Register Act under Exemption 3, Rule 6(e)/Exemption 3 for grand‑jury subpoenaed records, Exemption 7(D) for implied‑confidential informants, and the possible use of FOIA’s investigative exclusion, 5 U.S.C. § 552(c)(1).
- The D.C. Circuit affirmed some rulings, reversed others, vacated the district court’s Exemption 7(A) ruling (because the FBI later released those records), and remanded for further factual development on certain Exemption 3 issues and on grand‑jury material.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Pen Register Act authorizes withholding of information beyond a sealed pen‑register order | Labow: Statute only authorizes sealing the order itself; it does not permit withholding the same information when it appears in other records | DOJ: Pen Register Act qualifies under Exemption 3 and justifies withholding associated information | Court: Pen Register Act qualifies as an Exemption 3 statute, but remanded — DOJ must show whether withheld information appears only in a sealed order or also in other records before Exemption 3 applies |
| Whether documents subpoenaed by a grand jury may be withheld under Rule 6(e)/Exemption 3 | Labow: Mere fact a document was subpoenaed does not automatically shield it; DOJ must show disclosure would reveal grand‑jury workings | DOJ: Subpoenaed records reveal grand‑jury strategy/inner workings and are therefore protected | Court: Remanded — DOJ’s conclusory declaration insufficient; district court must determine whether release would reveal grand‑jury identity, investigation, or deliberations |
| Whether withholding under Exemption 7(D) for informant identities was proper where confidentiality is implied | Labow: Implied confidentiality not established for the single page withheld solely on that basis | DOJ: Declarations show informants provided singular, ongoing, non‑paid, sensitive information about extremist activity — implying confidentiality | Court: Affirmed — applying Roth/Landano factors, the record supports implied assurances and withholding under Exemption 7(D) |
| Whether FOIA investigative exclusion §552(c)(1) or other exclusions were impermissibly applied; and Exemption 7(A) disposition | Labow: District court should have used public briefing before ex parte in camera review to test hypothetical exclusion use; also contests any improper exclusion use | DOJ: In camera review of ex parte affidavit was appropriate and disclosed no improper exclusion use; DOJ later released Exemption 7(A) materials | Court: No abuse of discretion in in camera review; on the merits, no improper use of any exclusion found; vacated district‑court ruling as to Exemption 7(A) because documents were released (issue moot) |
Key Cases Cited
- Newport Aeronautical Sales v. Dep’t of the Air Force, 684 F.3d 160 (D.C. Cir. 2012) (two‑step test for whether a statute qualifies under FOIA Exemption 3 and whether withheld information falls within that statute)
- Lam Lek Chong v. U.S. Drug Enf’t Admin., 929 F.2d 729 (D.C. Cir. 1991) (Title III properly qualifies under Exemption 3 for intercepted communications)
- Senate of Puerto Rico v. U.S. Dep’t of Justice, 823 F.2d 574 (D.C. Cir. 1987) (grand‑jury secrecy exception does not cloak all material merely presented to a grand jury)
- Roth v. U.S. Dep’t of Justice, 642 F.3d 1161 (D.C. Cir. 2011) (four‑factor test for implied confidentiality under Exemption 7(D))
- U.S. Dep’t of Justice v. Landano, 508 U.S. 165 (1993) (defining implied assurances of confidentiality)
- ACLU of Mich. v. FBI, 734 F.3d 460 (6th Cir. 2013) (discussing limitations and risks of requiring public hypothetical briefing about use of FOIA exclusions)
- ACLU of N.J. v. FBI, 733 F.3d 526 (3d Cir. 2013) (similar rejection of hypothetical public‑briefing approach to exclusion challenges)
- Washington Post Co. v. U.S. Dep’t of Justice, 863 F.2d 96 (D.C. Cir. 1988) (relevant timing question: whether release at the time of the FOIA request would have revealed grand‑jury workings)