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Friday, February 2, 2018


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Ninth Circuit Reverses Order to FBI to Disclose Records

Says ‘Rational Nexus’ Between Document and Law Enforcement Is All That Need Be Shown for Exemption Under FOIA to Apply


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals yesterday reversed a district court order to the FBI requiring that it surrender to the American Civil Liberties Union of Northern California and other groups more than 47,794 pages of documents relating to surveillance of Muslims.

It held that an agency may hold back any document if it can “establish a rational nexus between the withheld document and its authorized law enforcement activities,” without pointing to a particular law it is seeking to enforce.

Circuit Judge Andrew D. Hurwitz wrote the opinion vacating a summary judgment granted in 2015 to the ACLU by District Judge Richard Seeborg of the Northern District of California.

The issue was whether Exemption 7 of the Freedom of Information Act (“FOIA”)—which applies to “records or information compiled for law enforcement purposes”—justifies the FBI’s withholding of the documents. Seeborg held that the FBI had the burden of pointing to a particular law it is seeking to enforce in connection with any document that was not released, and failed to make that showing.

Circuit Judge’s Opinion

Hurwitz wrote:

“In analyzing FOIA requests to law enforcement agencies for disclosure of investigatory materials, we have long held that the government need only show a ‘rational nexus’ between enforcement of federal law and a withheld document to invoke Exemption 7….But, we have not yet decided whether the same standard governs requests for more generalized records, such as training manuals and guidelines.

“We today hold that for such records, the government’s burden under Exemption 7 of demonstrating that withheld materials were “compiled for law enforcement purposes’ can be satisfied without linking the documents to the enforcement of a particular statute.”

ACLU’s Request

The ACLU in 2010 requested documents relating to “[t]raining for FBI agents regarding Islam, Muslim culture, and/or Muslim, Arab, South Asian, or Middle Eastern communities in The United States,” as well as “FBI investigations and assessments of mosques; Islamic centers; Muslim community centers; members of mosques. Islamic centers or Muslim community centers based on their membership or affiliation with such centers; Muslim leaders; and imams.” It also sought information as to the FBI’s “mapping” of businesses and communities on the basis of race and ethnicity. 

Initially, no documents were provided. After bringing suit, the ACLU did receive about 5,000 pages of materials, and then sought summary judgment to get what was refused under the exemption.

Deference to FBI

Hurwitz said that “deference” must be given to the FBI’s determination that documents should not be disclosed, declaring:

“Given such deference, the FBI can surely compile documents for law enforcement purposes without a pre-existing nexus to the enforcement of a specific federal law.  For example, an FBI policy about when to seek warrants to search religious institutions and how to conduct searches of such locations would plainly be a document compiled for ‘law enforcement purposes.’ However, the document would not have a nexus to the enforcement of a particular statute until a search is conducted. It would instead apply to the enforcement of all or many of the statutes the FBI is charged with enforcing and to the FBI’s law enforcement duties in general. Exemption 7 applies on its face to “records or information compiled for law enforcement purposes.’…It would be anomalous to deny the benefit of the Exemption to documents that plainly meet its facial requirements because, although they apply to the FBI’s law enforcement duties, they are not yet tied to a particular investigation conducted pursuant to a particular federal law.”

The matter was remanded for Seeborg to make a document-by-document evaluation.

The case is American Civil Liberties Union of Northern California v. FBI, No. 16-15178.


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