944 F.3d 940
D.C. Cir.2019Background
- Dr. Ryan Shapiro filed FOIA requests seeking FBI records about the Bureau’s use of “mosaic theory,” including searches for terms like Operation Mosaic and “mosaic study.”
- The FBI produced a spreadsheet “search slip” showing 28 files initially identified as responsive or potentially responsive; the FBI later told Shapiro none of those files were responsive or that some had been destroyed.
- The FBI also ran full-text searches in its ECF and Sentinel systems for "Operation Mosaic," returning five hits the FBI treated as non-responsive; three of those related to counterintelligence/organized crime and two to unrelated human-trafficking business names.
- Shapiro challenged the FBI’s summary-judgment showing as inadequate, contending the agency gave only conclusory explanations for reclassifying or destroying files and for withholding ECF/Sentinel hits that used the term "Operation Mosaic."
- The district court granted summary judgment to the FBI; the D.C. Circuit reviewed de novo and found the FBI’s affidavits and explanations insufficient in several respects, reversing or vacating and remanding for further proceedings.
Issues
| Issue | Shapiro's Argument | FBI's Argument | Held |
|---|---|---|---|
| Adequacy of reclassification of files listed as "responsive" on search slip | FBI must give non-conclusory, document-specific reasons for changing responsiveness | Search slip was preliminary; further review justified non-responsiveness | Court reversed and remanded: FBI must provide fuller, non-conclusory justification for each reclassification |
| Redacted file numbers on search slip | Redactions left uncertainty whether records were destroyed or non-responsive; suggests overlooked material | Affidavit did not specify redacted items' fates | Court reversed and remanded: FBI must clarify status of redacted entries |
| Claim that some files were destroyed | Shapiro: agency must show evidence destruction actually occurred | FBI stated files were destroyed per records-management practice | Court reversed and remanded: affidavits must supply underlying facts (e.g., destruction log, retention-schedule evidence) showing likely fate |
| ECF/Sentinel hits for "Operation Mosaic" and 94-file search | Shapiro: hits referencing "Operation Mosaic" (esp. in organized crime/counterintelligence) are plausibly responsive; FBI should perform fuller search of 94 files | FBI: returned hits are non-responsive (different "Mosaic" uses); agreed to run 94-file full-text search pre-argument | Court reversed as to three ECF/Sentinel files and vacated district-court decision on 94 files; remanded for fuller justification and to allow challenge to adequacy of the 94-file search |
Key Cases Cited
- Halperin v. CIA, 629 F.2d 144 (D.C. Cir. 1980) (describes how discrete intelligence pieces can combine into a revealing "mosaic")
- Nat'l Sec. Archive v. CIA, 752 F.3d 460 (D.C. Cir. 2014) (discusses Exemption 5 pre-decisional, deliberative materials)
- DiBacco v. U.S. Army, 795 F.3d 178 (D.C. Cir. 2015) (affidavits must be reasonably detailed to show adequacy of a FOIA search)
- SafeCard Servs., Inc. v. SEC, 926 F.2d 1197 (D.C. Cir. 1991) (affidavits receive presumption of good faith but cannot be conclusory)
- Weisberg v. DOJ, 627 F.2d 365 (D.C. Cir. 1980) (agency belief alone insufficient to prove records were destroyed)
- LaCedra v. Exec. Office for U.S. Att'ys., 317 F.3d 345 (D.C. Cir. 2003) (context for assessing responsiveness and scope issues)