Sharif MOBLEY, Appellant v. CENTRAL INTELLIGENCE AGENCY, et al., Appellees.
No. 13-5286.
United States Court of Appeals, District of Columbia Circuit.
Argued Sept. 8, 2015. Decided Nov. 13, 2015.
806 F.3d 568
So ordered.
Mark S. Zaid was on the brief for amicus curiae J. William Leonard in support of appellant.
H. Thomas Bryon III argued the cause for appellees. With him on the brief were Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Vincent Cohen, Jr., Acting U.S. Attorney, and Matthew Collette, Attorney.
Before: ROGERS, BROWN and SRINIVASAN, Circuit Judges.
Opinion for the Court filed by Circuit Judge ROGERS.
ROGERS, Circuit Judge:
Sharif Mobley seeks information relating principally to his detention in Yemen from four federal agencies. After submitting requests pursuant to the Freedom of Information Act (FOIA),
I.
Mobley, a United States citizen, Cmpt. 13, has been detained in Yemen since January 26, 2010. According to one of his attorneys, he was abducted from the streets of Sana‘a, Yemen‘s capital city, by eight armed men who forced him into a van, shooting him twice in the process. Decl. Cori A. Crider, ¶¶ 1, 8-16 (July 21, 2010). Mobley had lived in Sana‘a with his family since 2008, but in January 2010, he contacted U.S. Embassy officials to arrange for return to the United States. Id. ¶¶ 11-13. While in custody, Mobley claims that he was interrogated by agents from the Federal Bureau of Investigation (FBI), the Defense Department, and other unspecified U.S. federal agencies. Id. ¶¶ 32-51. Although it remains unclear to Mobley why he was initially detained, id. ¶ 11, he is being held on allegations that he shot two hospital guards—one fatally—during an attempted escape while he was being treated for injuries sustained during his abduction and detention, id. ¶¶ 26-54.
On July 22, 2010, Mobley submitted an information request, pursuant to FOIA and the Privacy Act, to various federal agencies, including the FBI, the Central Intelligence Agency (CIA), the Department of Defense, and the Department of State. He sought information on: (1) his abduction; (2) the involvement of various federal agencies in his abduction and interrogation; and (3) the wider pattern of U.S.-sponsored sweeps and proxy detention in Yemen from January 2010, of which [his] seizure is a part. FOIA/Privacy Act Request at 2 (July 22, 2010). In addition, he sought all records in any way relating to, pertaining to, or mentioning [Mobley] by any and all persons or entities, including all persons acting on behalf of the United States. Over a year later, Mobley‘s counsel sent two e-mails to the FBI,
On November 22, 2011, Mobley filed two lawsuits in the federal district court. See
The district court ruled on the government‘s motions for summary judgment in both cases in a single memorandum opinion of February 7, 2013. See Mobley v. CIA, 924 F.Supp.2d 24, 74 (D.D.C. 2013). The court granted summary judgment in full to the defendants, with the exception of the CIA, and in the FBI case entered a final and appealable Order. Although it rejected most of Mobley‘s challenges to the CIA‘s search for responsive records and decisions to withhold certain information, the district court ordered the CIA to conduct a supplemental search in the Director of National Intelligence‘s Open Source Center (OSC) and to release any non-exempt records it located, id. at 37-38. The CIA subsequently filed a joint notice regarding OSC records. On June 7, 2013, the district court granted summary judgment in full in the CIA case and directed that case be closed. Four days later, the district court consolidated Mobley‘s two lawsuits.
On June 17, 2013, Mobley moved for reconsideration on the grounds that the district court erred by failing to: (1) require the FBI to search its e-mail systems; (2) require the CIA to disclose six of the documents referred to it by the DIA; and (3) conduct in camera review of two pages of responsive records withheld by the FBI. The district court treated Mobley‘s motion as filed pursuant to
Mobley appeals. Our review of the grant of summary judgment is de novo. Morley v. CIA, 508 F.3d 1108, 1114 (D.C. Cir. 2007). Our review of the denial of a
II.
The court must first address the threshold question of whether it has jurisdiction to consider Mobley‘s challenges to the district court‘s grants of summary judgment in the FBI and the CIA cases. Our review of jurisdictional issues is de novo, Foretich v. ABC, 198 F.3d 270, 273 (D.C. Cir. 1999), and this includes whether Mobley‘s
A.
Because timing is central to the jurisdiction question, a brief chronology of the relevant events follows. As noted, on February 7, 2013, the district court granted summary judgment in the FBI case and entered a final, appealable order, see
A week later, Mobley filed, in light of the high degree of overlap between these cases, a motion to stay the FBI case until the district court had finally resolved the CIA case, so that the motions for reconsideration or appeals to the D.C. Circuit in both cases could be filed and adjudicated at the same time. The district court granted the motion and stayed the FBI case until a final appealable order has been issued in the CIA case.
On June 7, 2013, the district court granted summary judgment in full in the CIA case and entered a final, appealable order. It also lifted the stay in the FBI case. Four days later, it consolidated the two lawsuits.
On June 17, 2013, Mobley moved for partial reconsideration, pursuant to
B.
The government, while acknowledging Mobley‘s appeal of the denial of his motion for reconsideration is timely, suggests that this court‘s jurisdiction over the grants of summary judgment of February 7 and June 7 is less clear, Appellees’ Br. 2. For the following reasons, we conclude the court has jurisdiction over the entirety of Mobley‘s appeal.
1. With regard to the FBI case, the government declined, curiously, to take a position on whether the court lacks jurisdiction. Presumably, the government‘s summarily stated intimation is based on the fact that where one of the parties is a United States agency, a notice of appeal must be filed within 60 days after entry of the judgment or order appealed.
Notwithstanding the government‘s demurrer, this court must satisfy itself of its
Prior to Bowles v. Russell, 551 U.S. 205 (2007), the unique circumstances doctrine permitted appellate courts to excuse untimeliness where a party acted belatedly in reliance on an erroneous district court ruling. See Thompson v. INS, 375 U.S. 384 (1964); Harris Truck Lines, Inc. v. Cherry Meat Packers, Inc., 371 U.S. 215 (1962). The doctrine, however, applied only where a party who could have filed a timely notice of appeal is lulled into missing the deadline by a formal court order or ruling, containing specific assurances that action which extends or postpones the deadline has properly been taken.... Moore v. S.C. Labor Bd., 100 F.3d 162, 162 (D.C. Cir. 1996); see also Osterneck v. Ernst & Whinney, 489 U.S. 169, 179 (1989). In Bowles, 551 U.S. at 214, the Supreme Court expressly overruled Thompson and Harris Truck Lines and rejected the unique circumstances doctrine, but only “to the extent [it] purport[s] to authorize an exception to a jurisdictional rule.” Id. That qualifying dependent clause left open the doctrine‘s continued vitality as an exception to a non-jurisdictional rule. Cf. Gutierrez v. Johnson & Johnson, 523 F.3d 187, 198-99 & n. 10 (3d Cir. 2008); see also United States v. Garduno, 506 F.3d 1287, 1291-92 & n. 5 (10th Cir. 2007); 4B CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1168 (4th ed. 2008); 16A id. § 3950.1.
“Only Congress may determine a lower federal court‘s subject-matter jurisdiction.” Kontrick v. Ryan, 540 U.S. 443, 452 (2004). Timing rules are therefore jurisdictional if they implement a statutory time limit, whereas timing rules lacking a statutory basis are simple claim-processing rules subject to waiver and forfeiture. Bowles, 551 U.S. at 213. The timing rules at issue here—
Unique circumstances excuse Mobley‘s untimely filing of his
A litigant in Mobley‘s position would reasonably have concluded that he could delay filing a
Under the unique circumstances doctrine, because no jurisdictional rule is implicated, Mobley‘s
Our conclusion that the court has jurisdiction is reinforced by an alternative basis for that conclusion, which would involve treating the district court‘s grant of Mobley‘s unopposed motion for a stay as a motion for extension of time under
In re Sealed Case, 624 F.3d 482 (D.C. Cir. 2010), does not require a contrary conclusion regarding this court‘s jurisdiction over Mobley‘s appeal. There, the court held that even though
The government‘s remaining objection, to the manner in which the district court counted the 28-day period for filing a
As a final point, we note that some of the complexity of the jurisdictional question presented here could have been avoided had the district court stayed entry of the
2. There is no merit to the government‘s suggestion this court lacks jurisdiction to address Mobley‘s appeal of the June 7, 2013, order granting summary
“This circuit adheres to the ‘rule that a mistake in designating the specific judgment or order appealed from should not result in loss of the appeal as long as [1] the intent to appeal from a specific judgment can be fairly inferred from the appellant‘s notice (and subsequent filings) and [2] the opposing party is not misled by the mistake.‘” Messina, 439 F.3d at 759 (quoting Foretich, 198 F.3d at 273 n. 4). The second prong is quickly disposed of. There is no indication that the government was misled about Mobley‘s intent, for it has fully briefed the issues he raised with respect to the CIA.
Under the first prong, Mobley plainly intended to appeal the grant of summary judgment to the CIA. He appended to his notice of appeal the February 7 summary judgment order, which addressed not only the FBI case but granted summary judgment to the State Department and partial summary judgment to the CIA. Further, this court has looked to filings other than the notice of appeal to establish intent, including an appellant‘s statement of issues, Sinclair Broad. Grp. v. FCC, 284 F.3d 148, 158 (D.C. Cir. 2002), and Mobley‘s statement of issues challenged several rulings in favor of the CIA made by the district court in its February 7 summary judgment order. Specifically, he identified in paragraphs 6 and 9 of his statement of issues the district court‘s ruling that the CIA had not waived its so-called Glomar response and that the CIA‘s invocation of the response was procedurally sound. Mobley, 924 F.Supp.2d at 45-50.
We turn to the merits of Mobley‘s contentions.
III.
FOIA mandates disclosure of agency records upon request, unless they are subject to one of the nine statutory exemptions. See Milner v. Dep‘t of Navy, 562 U.S. 562, 565 (2011); see also
A.
Adequacy of search. Mobley contends the district court erred in ruling that the FBI had performed an adequate search in response to his FOIA request. Our review of the adequacy of an agency‘s search is de novo. See Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 326 (D.C. Cir. 1999). The court may rely on a
Over a year after Mobley‘s initial request for all records pertaining to him, his attorney sent two e-mails to the FBI requesting that it search specific record systems. Among them were all “shared drives,” in particular those for FBI headquarters and the New Jersey and New York Field Offices, and record systems located in the Washington and Baltimore Field Offices. One of the e-mails linked to a news story attributing to the FBI the statement that the Baltimore Field Office was working on Mobley‘s case. In response to Mobley‘s request, the FBI searched its Central Records System (CRS) and Electronic Surveillance (ELSUR) Indices. Generally, Mobley maintains that the FBI was required to search—or explain in greater detail than it did why it did not search—the record systems he asked it to search. In addition, although Mobley did not specifically ask the FBI to search e-mail systems, he insists the FBI was required to search them as record systems reasonably likely to contain responsive materials.
The detailed declarations of Dennis J. Argall, the assistant section chief of the FBI‘s Record/Information Dissemination Section, demonstrate that the FBI‘s search was adequate. Among other things, Argall explains the automation of the CRS in the 1990s and describes the wide array of databases incorporated into it, such that the CRS houses “all information which [the FBI] acquire[s] in the course of fulfilling its mandated law enforcement responsibilities.” First Argall Decl. ¶¶ 25-30; Decl. Dennis J. Argall, Assistant Section Chief, Records/Info. Dissemination Section, FBI, ¶¶ 3-9 (Oct. 12, 2012) (“Second Argall Decl.“). He sets out in detail what search terms the FBI employed, and concludes that the FBI‘s search of the CRS—alongside its search of the ELSUR Indices—was reasonably likely to produce the information Mobley requested. Second Argall Decl. ¶ 9b.
Argall explains further that the specific record systems Mobley asked the FBI to search either are captured by the CRS or are unlikely to contain responsive records. Id. ¶¶ 3-9. Likewise, he states that e-mail systems also are not reasonably likely to result in additional responsive records because the records in them are redundant of records stored in the CRS. Id. ¶ 9b. Moreover, according to Argall, some record systems that Mobley asked the FBI to search—the so-called “I-Drive” and “tickler” files—are no longer in use. In 2001, all FBI field offices were instructed to perform comprehensive searches of the I-Drives in order to determine if I-Drive files were already in the FBI‘s automated search system. Id. ¶ 9a. If they were not, those files were added to that system, and thereafter the I-Drive was eliminated. Id. As for “tickler” files, they are “historical in nature,” and the FBI no longer requires that they be created or maintained. Id. ¶ 7. The files were duplicates that contained copies of documents already indexed in the CRS. Regarding the newspaper story about the Baltimore Field Office, Argall states that access to CRS files in FBI field offices is also obtained through
Mobley‘s specific challenges to the adequacy of the FBI‘s search and the good faith of Argall‘s declarations are thus unpersuasive. Had the FBI only searched the record systems “most likely” to contain responsive records, its search would be inadequate. See DiBacco, 795 F.3d at 190; Oglesby, 920 F.2d at 68. But, as Mobley concedes, that is not what the FBI‘s declarations state it did here. Still, Mobley insists his selective close reading of Argall‘s declarations, taken alongside FBI declarations in other FOIA cases, demonstrates that Argall‘s declarations actually say that the FBI limited its search to the record systems “most likely” to contain responsive records. Neither Argall‘s words nor the FBI declarations that Mobley identified from other FOIA cases call into question the good faith of Argall‘s representations. Although Mobley may believe that Argall‘s sworn statements are disingenuous, he has offered no basis on which this court could conclude the presumption of good faith has been overcome.
Further, a request for an agency to search a particular record system—without more—does not invariably constitute a “lead” that an agency must pursue. A “lead” must be “both clear and certain” and “so apparent that the [FBI] cannot in good faith fail to pursue it.” Kowalczyk v. Dep‘t of Justice, 73 F.3d 386, 389 (D.C. Cir. 1996). For example, in Campbell, 164 F.3d at 27-28, the court held that the FBI could not decline to search beyond the CRS where records in the CRS themselves indicated that there were undiscovered responsive records located in other record systems. Halpern v. FBI, 181 F.3d 279 (2d Cir. 1999), on which Mobley relies by analogy, is in alignment with this court‘s precedent. Id. at 288-89. By contrast, Mobley‘s demand that the FBI search certain record systems is generally mere fiat. To the extent it is not, as noted, the Argall declarations demonstrate the FBI conducted an adequate search. In any event, under Mobley‘s approach, which would allow a requester to dictate, through search instructions, the scope of an agency‘s search, the reasonableness test for search adequacy long adhered to in this circuit would be undermined. Cf. DiBacco, 795 F.3d at 191 (citing SafeCard Servs., 926 F.2d at 1201). Although an agency may not ignore a request to search specific record systems when a request reaches the agency before it has completed its search, cf. Campbell, 164 F.3d at 28, a search is generally adequate where the agency has sufficiently explained its search process and why the specified record systems are not reasonably likely to contain responsive records, see id. at 27-28; Oglesby, 920 F.2d at 68. As noted, the FBI did just that.
Additionally, the FBI has no responsibility to pursue leads that might be contained in documents released by other agencies where it does not become aware of those documents until after it has completed its search. See Campbell, 164 F.3d at 28; Kowalczyk, 73 F.3d at 389. Mobley maintains that the redacted e-mails released by the State Department, on the same day and through the same counsel as the FBI release, demonstrate that the FBI failed to pursue relevant leads in its search. But Mobley provides no evidence that the FBI was aware of those leads in the State Department e-mails before completing its search. Because agencies are not required to perform additional searches once their search is concluded, the court cannot conclude that
Finally, the FBI‘s search, under FOIA, “is not unreasonable simply because it fails to produce all relevant material....” Meeropol v. Meese, 790 F.2d 942, 952-53 (D.C. Cir. 1986); see also Wilbur v. CIA, 355 F.3d 675, 678 (D.C. Cir. 2004); Iturralde v. Comptroller of Currency, 315 F.3d 311, 315 (D.C. Cir. 2003); Nation Magazine v. U.S. Customs Serv., 71 F.3d 885, 892 n. 7 (D.C. Cir. 1995); SafeCard Servs., 926 F.2d at 1201. Over objections similar to Mobley‘s, the court upheld the adequacy of a search although it failed to discover an entire category of records about a secret meeting that, according to the requester, was “of such importance that records must have been created.” DiBacco, 795 F.3d at 190; see also Oglesby, 920 F.2d at 67 n. 13. In the absence of any supporting evidence, Mobley‘s argument that files predating his arrest must have existed also fails to raise a material question of fact regarding the adequacy of the search.
B.
Waiver by official acknowledgment. Mobley contends that the FBI and CIA waived their application of FOIA Exemption 1 to certain information through official acknowledgment of that exempt information. Exemption 1 shields from disclosure records that may be and are properly classified, thus removing from FOIA‘s scope “matters that are ... specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and ... are in fact properly classified pursuant to such Executive order.”
The plaintiff bears the burden of identifying specific information that is already in the public domain due to official disclosure. Wolf v. CIA, 473 F.3d 370, 378 (D.C. Cir. 2007); Afshar v. Dep‘t of State, 702 F.2d 1125, 1130 (D.C. Cir. 1983). Mobley has not carried that burden. First, Mobley points to a document filed by a private party in a Yemeni court proceeding. According to Mobley, the FBI had given the interview record to the Yemeni government without any restrictions on its use, and the Yemeni government, in turn, had provided it to the party that filed it in court. Even assuming the truth of his claims, the district court did not err in ruling there had been no official acknowledgment of the document. Disclosure by one federal agency does not waive another agency‘s right to assert a FOIA exemption. Frugone v. CIA, 169 F.3d 772, 774-75 (D.C. Cir. 1999). By parity of reasoning it follows that a foreign government also cannot waive a federal agency‘s right to assert a FOIA exemption. It is more difficult still to understand how disclosure by private litigants in a foreign court proceeding could constitute official acknowledgment. That kind of disclosure is no more “official” than the disclosure of information by former CIA agents and officers acting with the blessing of that agency‘s prepublication review process, and this court has held the latter insufficiently official to
Second, Mobley contends that an error in the CIA‘S FOIA office waived reliance on its Exemption 1 Glomar response. An agency asserts a Glomar response when it refuses to confirm or deny the very existence of responsive records. The name finds its source in Phillippi v. CIA, 546 F.2d 1009 (D.C. Cir. 1976), which involved the CIA‘s refusal to confirm or deny the existence of documents pertaining to the Glomar Explorer, a ship the U.S. government allegedly had deployed in an effort to recover a sunken Soviet submarine. See Am. Civil Liberties Union v. CIA, 710 F.3d 422, 426 n. 1 (D.C. Cir. 2013). Here, Mobley locates waiver in the first of two final response letters he received from the CIA. A September 20, 2011, letter from the CIA states that (1) the agency had located responsive records but was withholding them in full based on two FOIA and two Privacy Act exemptions, and (2) as to any records that “reveal[ed] a classified connection to the CIA,” it was asserting a Glomar response. On January 11, 2012, the CIA issued an “amended final response” stating that (1) the September 20 letter “contained inaccuracies” as to the CIA‘s search; (2) in fact, its search turned up no “responsive records that might reflect an open or otherwise acknowledged [CIA] affiliation“; and (3) its Glomar response applied to “a classified connection to the CIA.” Mobley maintains that the first CIA letter constitutes official acknowledgment that the CIA possesses records responsive to his FOIA request that reveal a classified connection between him and the CIA. That, in Mobley‘s view, waived the Glomar response the CIA relied on in its second letter.
A Glomar response is proper only if “the fact of the existence or nonexistence of agency records falls within a FOIA exemption,” Wolf, 473 F.3d at 374, and like other information withheld pursuant to an exemption, an agency can waive a Glomar response through official acknowledgment, id. at 378. The Chief of the Public Information Programs Division at the CIA stated in a sworn declaration that the September 20 letter was “mistakenly issued” and “contained inaccuracies regarding the results of the CIA‘s search,” an “error” that the CIA did not notice until after Mobley appealed the agency‘s response. Decl. Michele L. Meeks, Chief, Pub. Info. Programs Div., CIA, ¶¶ 21-22 (May 25, 2012); see also Supplemental Decl. Michele L. Meeks, Chief, Pub. Info. Programs Div., CIA, ¶ 4 (Aug. 1, 2012). Mobley concedes that the CIA‘s first letter was a “mistake.” Appellant‘s Br. 31. Mobley‘s waiver argument therefore fails on the third prong of the test in Fitzgibbon. Although a FOIA response could satisfy that prong, a simple clerical mistake in FOIA processing cannot. A contrary conclusion would be inconsistent with the deference granted to agency determinations in the national security context. See, e.g., Wolf, 473 F.3d at 374; Krikorian v. Dep‘t of State, 984 F.2d 461, 464 (D.C. Cir. 1993).
C.
Classification of documents. Mobley also takes issue with the district court‘s ruling that the FBI properly classified certain responsive records after it received his FOIA request. The problem, as he sees it, is that the official who classified those records acted pursuant to an improper sub-delegation of post hoc classification authority. The text of the sub-delegation order indicates that the sub-delegation was permissible.
Executive Order 13,526, 75 Fed.Reg. 707 (Jan. 5, 2010) (“the Order“), sets forth the executive branch‘s classification system
In 1999, the Assistant Attorney General for Administration delegated his § 1.7(d) authority to the chief of the FBI‘s Document Classification Unit. Pursuant to that delegation, the document-by-document review mandated by § 1.7(d) was conducted twice in Mobley‘s case, first by David M. Hardy, the chief of the FBI‘s Record/Information Dissemination Section—the Document Classification Unit‘s successor—and later, in Hardy‘s absence, by Argall, the acting section chief.
Sub-delegation to a subordinate federal official is presumptively permissible, absent affirmative evidence in the original delegation of a contrary intent. Cf. U.S. Telecom Ass‘n v. FCC, 359 F.3d 554, 565 (D.C. Cir. 2004). Under § 1.7(d) of the Order, post hoc classification is permissible so long as a designated official takes part in the decision at one of two levels of involvement: The designated official must personally participate in the classification decision, or the official deciding to classify a document must act under the direction of the designated official. The 1999 sub-delegation order opts for the latter. It requires that the sub-delegee keep the Assistant Attorney General for Administration “apprised in a timely manner of any action taken under this authority.” Order, Stephen R. Colgate, Assistant Att‘y Gen. for Admin. (Dec. 29, 1999). The ongoing notification requirement qualifies the sub-delegee‘s classification decisions as made “under the direction” of the Assistant Attorney General for Administration. Mobley points to nothing in the record that suggests a failure to comply with this requirement of the sub-delegation order.
IV.
The Privacy Act. Mobley also challenges two of the district court‘s Privacy Act rulings, one pertaining to the FBI and the other to the CIA. Each challenge fails. The FBI‘s declarations satisfied the requirements of Doe v. FBI, 936 F.2d 1346 (D.C. Cir. 1991). The documents withheld by the CIA were not housed in a “system of records” and therefore are beyond the reach of the Privacy Act.
The Privacy Act,
“The Privacy Act—unlike [FOIA]—does not have disclosure as its primary goal” and instead uses disclosure as a tool to “allow individuals on whom information is being compiled and retrieved the opportunity to review the information and request that the agency correct any inaccuracies.” Henke v. U.S. Dep‘t of Commerce, 83 F.3d 1453, 1456-57 (D.C. Cir. 1996). Nevertheless, like FOIA, the Privacy Act provides a cause of action to compel compliance with subsection (d)(1).
A.
Mobley contends that Privacy Act Exemption (j)(2) did not justify the FBI‘s decision to withhold certain responsive documents. Exemption (j)(2) permits an agency head to promulgate rules—subject to public notice and comment—to exempt any of the agency‘s systems of records from several of the Privacy Act‘s requirements, including disclosure under subsection (d)(1), so long as the system of records satisfies certain criteria.
A Justice Department regulation, promulgated pursuant to
Mobley disagrees with the FBI‘s characterization of those efforts and believes they are better described as consular or diplomatic functions. But even had Mobley offered a basis for the court to accept his characterization, and he does not, Mobley erroneously assumes that a federal agency is capable of acting in pursuit of only a single objective at a time. Agencies may well—and surely often do—seek to advance a variety of objectives through a single act. Here, for example, the FBI may have wanted to “ascertain the facts and circumstances” of Mobley‘s detention in order to protect the interests of U.S. citizens abroad and, at the same time, may have wanted to “ascertain the facts and circumstances” of Mobley‘s detention in order to determine whether Mobley or another person had violated
B.
Mobley also challenges the district court‘s ruling that the DIA‘s Web Intelligence Search Engine or WISE (hereinafter, “DIA database“) falls outside the reach of the Privacy Act because it is not a “system of records.” In response to Mobley‘s FOIA and Privacy Act request, DIA referred to the CIA for processing 41 records that came to the DIA from the Open Source Center, which is managed by the CIA. The CIA withheld six of these records as exempt under FOIA. The government maintains that the 41 open source documents sent to the CIA were not subject to the Privacy Act at all because they were housed in the DIA database.
“A system of records exists only if the information contained within the body of material is both retrievable by personal identifier and actually retrieved by personal identifier.” Maydak v. United States, 630 F.3d 166, 178 (D.C. Cir. 2010) (quotation marks omitted) (emphasis in original). In determining whether an agency maintains a system of records, “the court should view the entirety of the situation, including the agency‘s function, the purpose for which the information was gathered, and the agency‘s actual retrieval practice and policies.” Henke, 83 F.3d at 1461. A court may rely on a non-conclusory agency declaration, absent evidence to the contrary. McCready v. Nicholson, 465 F.3d 1, 13 (D.C. Cir. 2006).
The declaration describing the DIA database establishes that it is not a “system of records,”
Mobley‘s efforts to call this declaration into question rest on insinuation and supposition. Chiefly, Mobley relies on his attorney‘s declaration that a DIA representative told him the DIA database is a “search engine [that] returns data from a multitude of sources based on a specific inquiry.” Decl. Kelly McClanahan ¶ 6 (June 17, 2013). All databases are searched by some kind of specific inquiry. That says nothing about whether the DIA searches the database by personal identifier. Nor, contrary to Mobley‘s assertion, do the statements made to his attorney undercut the good faith presumptively accorded Williams’ declaration. Williams stated that the DIA database consisted of e-mail traffic to and from other intelligence agencies, which is consistent with what DIA told Mobley‘s lawyer—that the database is a search engine that draws “data from a multitude of sources.” McClanahan Decl. ¶ 6. Accordingly, the district court did not err in its application of the Privacy Act.
Finally, Mobley‘s contention that the district court abused its discretion when it twice declined to review in camera an FBI document, which he claims was improperly classified, is unpersuasive.
At its discretion, a district court “may examine the contents of ... agency records in camera....”
Here, as our own review confirms, the district court, after reviewing in camera the FBI‘s classified declaration, acted within its sound discretion when it decided that it did not need to review the classified document in camera to conclude that the FBI withheld it as properly classified. Mobley points to no record evidence of bad faith. See id. at 392-93. Moreover, the document implicates national security, Larson, 565 F.3d at 870, and the parties’ dispute is over how to interpret the document—whether it was properly classified, Carter, 830 F.2d at 393. To the extent Mobley states in his reply brief that in camera review would also reveal that the FBI had improperly withheld records on the basis of FOIA Exemption 7(C), the court “need not consider this argument because [Mobley] ha[s] forfeited it on appeal, having raised it for the first time in [his] reply brief,” Am. Wildlands v. Kempthorne, 530 F.3d 991, 1001 (D.C. Cir. 2008), and shown no extraordinary circumstances to excuse his delay, Mich. Gambling Opposition v. Kempthorne, 525 F.3d 23, 29 n. 4 (D.C. Cir. 2008).
Accordingly, we affirm the orders granting summary judgment in Mobley‘s two cases and denying reconsideration.