*1 changing response carrier its rates Roger BLACKWELL, Appellant pressures, not order set-

competitive ceiling legal dispute tle a over whether its just and No. levels are reasonable. Order 58,759 Fed.Reg. (explaining how FEDERAL OF BUREAU INVESTIGA car- indexing methodology allows Depart 342.3’s TION and United States change rapidly respond

riers “to rates Justice, Appellees. ment of (observ- forces”); competitive Order 6 No. 10-5072. regulations pipeline allow own- any ers to their time “raise rates United Court Appeals, States ceiling la- competitive rate situation District of Columbia Circuit. permits ter such a increase rate any up presumed Argued to that level is Feb. increase 2011. reasonable”). just to be July 1, Decided regu with a Confronted scenario its anticipate,

lations did not Commission reasonably in treating

acted the settlement 342.4(c)

agreement as would treat a agen

settlement. “Because an applying

cy’s regulation to cir complex changing calls upon agency’s unique

cumstances

expertise policymaking prerogatives,” Occupational Safety

Martin v. & Health Comm’n, 144, 151,

Review (1991), we

defer to the Commission’s in reasonable

terpretation of its own regulations.

IV reasons, foregoing

For the petition

for review is

Denied. *2 argued

James H. Lesar cause filed for appellant. the briefs Rybicki, David C. Assistant U.S. Attor- upheld convictions sentence were ney, argued appellee. the cause for With direct appeal and in habeas proceedings. Machen, him on the brief were Ronald C. Blackwell, See United States v. *3 Jr., Lawrence, Attorney, Craig U.S. and R. (6th Cir.2006) (affirming 739 convictions Attorney. Assistant U.S. sentence); States, and v. Blackwell United 2:04-cr-00134, No. Crim. 2010 WL KAVANAUGH, Before: ROGERS and (S.D.Ohio 2010) 1257872 Mar. (denying WILLIAMS, Judges, Circuit and Senior motion). habeas Judge. Circuit consistently Blackwell has maintained Opinion for the Court filed Circuit that he is innocent. He claims that he was KAVANAUGH, Judge with whom Circuit unjustly targeted prosecuted by and Judge ROGERS and Senior Judge Circuit Federal Government because of his wealth join. WILLIAMS public and visibility. In he sent sev- for, eral FOIA requests among the FBI Concurring opinion filed Circuit things, other all key documents related to Judge ROGERS. trial, in witnesses his as well as documents KAVANAUGH, Judge: Circuit related to the costs the investigation prosecution. and Roger Blackwell was convicted fed- eral trading insider crimes. In this When the FBI received Blackwell’s suit, Freedom of Information Act he request, FOIA it searched its databases seeks information from the FBI that he Blackwell, for documents related to identi- believes would show misconduct fying pages 3319 of potentially responsive investigators prosecutors federal and han- those, documents. it Of determined that In dling response case. to Black- pages 1869 responsive. were After apply- request, produced well’s FOIA the FBI exemptions, the various FOIA the FBI many documents. But redacted or gave pages Blackwell 1103 full and 557 many withheld other pursuant documents pages part. It pages withheld 209 exemptions, to various FOIA including entirety. In response their its to Black- 7(C)’s protection “personal well, FBI stated that it had identified 7(E)’s privacy” protection and responsive by searching documents based for certain law techniques on Blackwell’s name alone and that it had procedures. Blackwell has chal- withheld information related par- to third lenged legitimacy the redactions of. ties. and withholdings, adequacy documents, responsive FBI’s search for lawsuit, In this sufficiency Vaughn and the of the FBI’s FBI failed to its redactions and describing index the redacted and with- withholdings under the claimed FOIA ex- held documents. The District Court re- emptions, that the FBI’s search was inade- jected arguments. Blackwell’s We affirm. quate, and that its in- Vaughn index was granted sufficient. The District Court

I summary judgment to the FBI all is- FBI, Roger F.Supp.2d In sues. Blackwell Blackwell was 680 convicted (D.D.C.2010). of 19 trading counts insider We review that decision related years’ offenses. He de novo. See v. Dep’t Agricul- was sentenced Elliott ture, (D.C.Cir.2010). imprisonment and fined million. His $1 protected under either are not II 7(C) ex- because those Act allows of Information The Freedom or infor- only to “records emptions apply certain Executive to obtain pur- for law enforcement compiled mation agency documents. See Branch 552(b)(7). To show poses.” 5 U.S.C. a number of ex- Act contains § 552. The were “com- disputed documents 552(b); also CIA see emptions. See purposes,” the piled 159, 166-67, Sims, 105 S.Ct. only “establish rational nexus FBI need (1985). Here, the 85 L.Ed.2d *4 investigation and one of the between 7(C) 7(E) to and Exemptions FBI invoked a con- enforcement duties and agency’s law by Blackwell.1 requested withhold records nection, an individual or incident between 7(C) agencies authorizes Exemption security risk or violation of possible and a compiled information “records or withhold Justice, Campbell Dep’t v. federal law.” only to purposes, but enforcement law (D.C.Cir.1998) (internal 20, 32 164 F.3d law production of such the extent that the omitted); and citation see quotation marks ... or information records enforcement Justice, F.2d Keys Dep’t 830 also v. reasonably expected to constitute be could (D.C.Cir.1987). 340 personal priva- invasion of an unwarranted 552(b)(7)(C). Exemption § cy.” 5 U.S.C. says that The FBI here the files or of “records withholding permits compiled Blackwell were requested compiled for law enforcement information stan purposes law under that enforcement that the only to the extent purposes, but is entitled to dard. The FBI’s assertion rec- such law enforcement production of deference, at and it 164 F.3d Campbell, ... would disclose ords or information convincing this case be especially is procedures for law enforce- techniques and sought explicitly Blackwell records cause or prosecutions, or investigations ment prosecution. his own criminal related to for law enforce- guidelines would disclose generated in the course of The documents or if such investigations prosecutions ment investigating prosecuting Blackwell on and reasonably expected could be quite trading charges were obvi insider the law.” Id. risk FBI’s enforcement ously related law 552(b)(7)(E). § Thus, sought duties. documents the re- initially argues Blackwell easily or in qualify case as “records this qualify neither of quested documents compiled formation they not exemptions those are 552(b)(7). § 5 U.S.C. purposes.” compiled or information for law “records purposes.” enforcement B 552(b)(7). they qualify as law Even challenges the FBI’s invoca- files, Blackwell enforcement Blackwell contends 7(C). 7(C) ap- Exemption exemptions FBI’s do not tion of claimed withhold ply. persuaded. are not law We authorizes Government records that “could reason- enforcement A an unwar- ably expected be constitute outset, personal privacy.” Id. At contends ranted invasion of 552(b)(7)(C). that the at issue in this case documents the documents is- Exemptions 2 cause we conclude that invoked The FBI 7(C) 7(C) 7(E). Exemptions We sue fall within addition to Exemptions be- 2 and 6 need consider 7(C), immunity As a result of FOIA agreement” with Blackwell’s ex- ordinarily require does not disclosure of but parents agreement wife’s that the was (or portions law enforcement documents signed later discovered “to very be thereof) that private contain information. attorney same prosecuting that denied its See, Justice, e.g., Martin Dep’t existence,” utterly Blackwell Deck 9—is (D.C.Cir.2007); Boyd F.3d unsupported references to the trial rec- Dep’t Criminal Division ord. Blackwell’s claim that the Govern- (D.C.Cir.2007); 381, 387-88 Og- ment deliberately allowed his former in- States, uaju v. United laws to flee the country and subpoe- avoid (D.C.Cir.2004); Servs., Inc. v. SafeCard nas that required would have their testi- SEC, (D.C.Cir. 1205-06 trial, mony similarly unsup- 1991). said, As this has “privacy Court ported. provides He no evidence that the particularly interests are difficult to over- Government even knew that the witnesses come when information traveling, would be much that it less had *5 regarding parties implicated.” third allowed them to purpose leave for the Martin, Moreover, 488 F.3d at 457. “the evading subpoenas. And he no supplies Supreme Court made has clear that re- evidence support to his claim that his com- quests party for such third information are puters “destroyed, were and returned to strongly particu- disfavored.” Id. That is condition,” office in [his] unusable render- larly requester true when the asserts a ¶ ing them useless for his defense. Id. 23. it might interest —however be gives pictures He no “destroyed” of the styled obtaining information that re- —in computers, no documentation comput- a lates to a criminal prosecution. expert er verifying they were “unusa-

The relevant question here is ble.” The affidavit alludes to the existence government whether Blackwell has shown evidence, of such but Blackwell did not Exemp misconduct sufficient to overcome ¶ provide it to the District Court. Id. 25. 7(C)’s protection personal tion for privacy short, In Blackwell has not come close under the test outlined Ar National meeting the demanding Favish standard Favish, chives & Records Admin. challenging for the FBI’s invocation of 7(C). FOIA Exemption (2004). To private obtain information un test, der requester the Favish must at C a “produce minimum evidence that would a person warrant belief a reasonable Blackwell also contests the FBI’s asser- impropriety that the Government exemption tion That Favish, might have occurred.” U.S. at permits withholding of law enforcement 174, 124 S.Ct. 1570. We conclude that records “to the extent that the production Blackwell has failed to meet the demand of such law enforcement records or infor- ing Favish standard. mation ... would disclose techniques and procedures only investiga- The support Blackwell offers prosecutions, tions or allegation government for his would disclose miscon affidavit, guidelines investiga- duct is own which recounts a law enforcement litany allegedly suspicious prosecutions tions or circumstances such disclosure but any reasonably lacks substantiation. could expected His most be risk cir- inflammatory allegation prose “the cumvention of law.” —that 552(b)(7)(E). any cutor claimed he not aware was ¶ explana- That Hardy nals.” Deck 45. exemp that “the has stated

This Court 7(E) standard. tion satisfies of the just for not tion looks circumvention; not law, risk of for a but FBI also invoked The circum risk of certain just an actual or collection, 7(E) protect “methods of data risk; just vention, expected an but for contained organization presentation expected universally undeniably or for an Hardy Deck 71. reports.” ChoicePoint risk; reasonably expected risk, a but “the manner Hardy explained reasonably of a just for certitude and not searched, organized and the data is which aof risk, for the chance but expected tech the FBI is an internal reported to Brown Mayer risk.” reasonably expected public,” not known to the nique, (D.C.Cir. IRS, LLP developed by ChoicePoint “method was 2009). precedents, our Under investigative needs of the specific meet the agen relatively bar for a low sets Hardy dis Id. 46. also said that FBI.” than withholding: “Rather cy crimi reports of the “could enable closure burden show requiring highly specific to avoid employ nals to countermeasures circumvented, ex be ing how the will detection, in jeopardizing the FBI’s thus 7(E) only [agen that the emption requires missions.” Id. These state vestigatory logically how the release cy] demonstrate could logically explain how the data ments might create requested information law, and that help elimináis circumvent *6 of the law.” Id. a risk of circumvention Ex invocation of suffices here (internal quotation marks and altera LLP, Mayer Brown emption See omitted). tions 562 F.3d at 1194. FBI The invoked Ill of informa respect here to two kinds with briefly mat- We address two additional proce tion. The first was “details about ters: the examina during used forensic dures by an FBI forensic computer”

tion of a that Blackwell contends FBI’s Hardy 70. Forensic ex examiner. Deck inad- responsive search for documents was undoubtedly are procedures amination equate the Bureau did search “law for “techniques” “procedures” or used indi- using the names of the its databases Thus, investigations.” in specifically viduals he had mentioned his only logically “demonstrate FBI needed request. FBI counters that it “will The requested informa how the release of parties in not conduct searches on third might tion create a risk of circumvention or proofs privacy of of death absence LLP, Mayer law.” individuals, of the Brown an artic- waivers from these (alterations omitted). end, To that at 1194 by strong a requester ulation a of Hardy, Chief of the FBI’s Rec David outweighs any privacy inter- interest that Section, ex Dissemination Hardy est.” Second Deck 7. Because ord/Information that, of specifics of plained “pertaining specific “[t]he release to” search records risk investigative techniques individuals, Request Rog- would Dr. these see FOIA of 27, 2007), of the individuals (Aug. er would have that we have con- computers only who seek to utilize violation information added 7(C), information, By releasing that is protected of laws. cluded fo the FBI was correct declin- exposing computer the FBI follows that would be documents. crimi- to search such potential rensic vulnerabilities to says Justice, Blackwell also the FBI’s Dep’t 387-88 of of Vaughn (D.C.Cir.2007); index withheld documents was see also Martin Dep’t inadequate primarily because it failed to 456-58 (D.C.Cir .2007). provide context certain documents that entirely had been withheld. But the sec- The court applies the standard Na Hardy provided ond declaration a concise tional Archives & Records Administration explanation for each of doc- these withheld Favish, 157, 124 S.Ct. ¶¶ Hardy uments. See Second 11- Deck (2004), whereby L.Ed.2d 319 a FOIA re Vaughn argument 12. Blackwell’s index quester, to government’s overcome the au unavailing. therefore thority pursuant not to disclose Exemp 7(C),

tion “produce must evidence that judgment affirm the would warrant a We District belief a reasonable person Court. Government im propriety might have occurred.” So ordered. With no additional thumb ROGERS, Judge, scale, Circuit concurring: the court concludes that rial is not stated Information Act quester’s desire to court I write rejects position separately a public 7(C).” the government’s broadly that under the (“FOIA”), interest obtain Appellee’s Br. 22. To to make clear that the Brady for purposes “a FOIA re Freedom ^[1] mate time of Blackwell does not meet government failed to comply currently withholding evidence that dem evidentiary matter demonstrated that the Op. at 41. Because Blackwell has not his trial or of exculpatory appeal material at the this standard. with its or that anas duty it is onstrates his innocence crimes government’s the extent position sug convicted, which he was request fails gests that when a requester exculpa seeks *7 standard; under the Favish no per se rule tory purposes evidence for of a ap direct applied. peal or a collateral attack on his conviction such categori information is cally not in the public interest for purposes Exemption 7(C),

of FOIA this misreads

precedent. contrary, To the an individu “personal al’s stake in the release of the Mary BREEDEN, Appellant Kate requested information is ‘irrelevant’ to the balancing third-party privacy NOVARTIS PHARMACEUTICALS required 7(C),” interests by Exemption CORPORATION, Appellee. Dep’t Roth v. (D.C.Cir.2011) 10-7073, Nos. 10-7078. (quoting Mays v. DEA, (D.C.Cir.2000)), United States Court of Appeals, and “the public might well a signifi have District of Columbia Circuit. knowing cant interest whether the fed Argued May 2011. government eral engaged in Brady blatant July Decided 2011. violations,” id. This court applied has not a per se rule and today. does not do so

See, e.g., Boyd v. Div. Crim. the U.S. Brady Maryland, (1963). 373 U.S. 83 S.Ct.