Garris v. Fed. Bureau of Investigation

• Citation: 937 F.3d 1284
• Decision Date: 11 September 2019
• Docket Number: No. 18-15416,18-15416
• Parties: Eric Anthony GARRIS, Plaintiff-Appellant, v. FEDERAL BUREAU OF INVESTIGATION, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

937 F.3d 1284

Eric Anthony GARRIS, Plaintiff-Appellant,

v.FEDERAL BUREAU OF INVESTIGATION, Defendant-Appellee.

No. 18-15416

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 12, 2019 Anchorage, Alaska

Filed September 11, 2019

Vasudha Talla (argued), American Civil Liberties Union Foundation of Northern California Inc., San Francisco, California, for Plaintiff-Appellant.

Lewis S. Yelin (argued) and Michael S. Raab, Appellate Staff; Alex G. Tse, United States Attorney; United States Department of Justice, Civil Division, Washington, D.C.; for Defendant-Appellee.

Adam Gershenson, Cooley LLP, Boston, Massachusetts; David Houska and Maxwell Alderman, Cooley LLP, San Francisco, California; for Amicus Curiae First Amendment Coalition.

Aiden Synnott, Luke X. Flynn-Fitzsimmons, William E. Freeland, and Melina M. Memeguin Layerenza, Paul Weiss Rifkind Wharton & Garrison LLP, New York, New York, for Amici Curiae Knight First Amendment Institute at Columbia University, Center for Constitutional Rights, Color of Change.

Aaron Mackey, Camille Fischer, and Adam Schwartz, Electronic Frontier Foundation, San Francisco, California, for Amicus Curiae Electronic Frontier Foundation.

Before: A. Wallace Tashima, William A. Fletcher, and Marsha S. Berzon, Circuit Judges.

TASHIMA, Circuit Judge:

Plaintiff-Appellant Eric Anthony Garris appeals the district court’s grant of summary judgment in favor of the Federal Bureau of Investigation ("FBI") in an action under the Privacy Act, 5 U.S.C. § 552a. Garris discovered that he and the website Antiwar.com had been the subject of two separate "threat assessment" memos (collectively, the "Memos") created by the FBI. The first, the "2004 Memo," detailed Garris’ posting of an FBI "watch list" to Antiwar.com as well as other First Amendment activity. The second, the "Halliburton Memo," detailed an upcoming Halliburton shareholder’s meeting and listed Antiwar.com as part of a catalogue of sources on the meeting.

Garris seeks expungement of the Memos under the Privacy Act, which provides that federal agencies shall "maintain no record describing how any individual exercises rights guaranteed by the First Amendment unless ... pertinent to and within the scope of an authorized law enforcement activity." 5 U.S.C. § 552a(e)(7). The FBI argues that, although both Memos describe protected First Amendment activity, the records fall under the law enforcement activity exception. Garris, however, contends that the law enforcement activity exception does not apply because the investigations detailed in both Memos have ended and the Memos are not pertinent to an ongoing authorized law enforcement activity. The question of whether, even if a record’s creation was permissible under the law enforcement activity exception, the record may not be maintained under § (e)(7) unless its maintenance is pertinent to an ongoing law enforcement activity, is one of first impression in our Circuit. We hold that unless a record is pertinent to an ongoing authorized law enforcement activity, an agency may not maintain it under § (e)(7) of the Privacy Act. Because the FBI has not met its burden of demonstrating that the 2004 Memo is pertinent to an ongoing law enforcement activity, it must be expunged. The Halliburton Memo, however, need not be, because it is pertinent to an ongoing law enforcement activity.

FACTUAL AND PROCEDURAL BACKGROUND

I. Factual Background

Garris is the founder, managing editor, and webmaster of Antiwar.com.¹ Antiwar.com is "an anti-interventionalist, pro-peace," non-profit news website, the mission of which is to publish news, information and analysis on the issues of war and peace, diplomacy, foreign policy, and national security, as an alternative to mainstream media sources.

A. The FBI’s 2004 Threat Assessment Memo

In March 2004, the FBI’s Counterterrorism Division’s Terrorism Watch and Warning Unit advised all field offices that a post-9/11 "watch list," that is, an FBI suspect list, called "Project Lookout" had been posted on the Internet and "may contain the names of individuals of active investigative interest." An FBI agent subsequently discovered a twenty-two-page untitled Excel spreadsheet, dated 10/03/2001, on Antiwar.com. The spreadsheet contained names and identifying information, and appeared to be a possible FBI watch list.

This discovery prompted the Newark, New Jersey, FBI office to look further at Antiwar.com. The Newark office subsequently identified on Antiwar.com another document, written in Italian, which was accompanied by a second twenty-two-page spreadsheet, dated 05/22/2002, that also appeared to be an FBI suspect list. The second spreadsheet was marked "FBI SUSPECT LIST" at the top of each page and "Law Enforcement Sensitive" at the bottom.

The FBI memorialized this information in the 2004 Memo with the subject "threat assessment: ... Eric Anthony Garris [and] www.antiwar.com." In addition to detailing the investigation and watch lists described above, the ten-page 2004 Memo described Antiwar.com’s mission and listed Garris as the managing editor. The Memo also detailed the results of law enforcement database searches for Garris and references to Garris and Antiwar.com found in FBI records. The Memo further stated that a Lexis Nexis search was run for Garris and Antiwar.com, and described six of the articles found by the search, all of which describe articles, opinions, statements, or speeches given by Garris or Raimondo. The majority of these focus on Garris’ political views. Additionally, the Memo noted that persons of interest to the FBI had accessed or discussed Antiwar.com.

In a section for "analyst comments," the Memo stated that "[t]he discovery of two detailed Excel spreadsheets posted on www.antiwar.com may not be significant by itself since distribution of the information on such lists are wide spread," but "it is unclear whether www.antiwar.com may only be posting research material compiled from multiple sources or if there is material posted that is singular in nature and not suitable for public release. There are several unanswered questions regarding www.antiwar.com."² The 2004 Memo concluded by recommending to the FBI San Francisco Field Office that it further monitor Antiwar.com’s postings and open a preliminary investigation to determine if Garris "[was] engaging in, or ha[d] engaged, in activities which constitute a threat to National Security on behalf of a foreign power."

The FBI’s San Francisco Field Office declined the recommendation, however, explaining that "it appears the information contained [on Antiwar.com] is public source information and not a clear threat to National Security," and "there does not appear to be any direct nexus to terrorism nor the threat of compromising current FBI investigations," and noting that Garris "[was] exercising [his] constitutional right to free speech."

Garris learned of the 2004 Memo in August 2011, after a partially redacted version was released on a website. He contends that his and the public’s awareness of the 2004 Memo caused him significant injury, including chilling of speech, damaged reputation, and loss of funding and other resources.

B. The FBI’s 2006 Halliburton Memo

In 2006, the FBI’s Oklahoma City Field Office created the Halliburton Memo, a memorandum describing information regarding an upcoming annual Halliburton shareholders’ meeting in Duncan, Oklahoma. The Halliburton Memo briefly described the Halliburton company, its contracts with the Department of Defense and prior affiliation with former Vice President Dick Cheney, and the schedule and logistics for the shareholders’ meeting, noting that the meeting had been "targeted by multiple organized protest groups." The Halliburton Memo also included a list of websites that had posted information regarding the shareholders’ meeting, of which Antiwar.com was one. Garris learned of the Memo during this litigation.

II. Procedural Background

In October 2011, following his discovery of the redacted 2004 Memo, Garris filed Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, and Privacy Act requests seeking disclosure of FBI records about him. After exhausting his administrative remedies, on May 21, 2013, Garris filed this action seeking disclosure of documents under FOIA and the Privacy Act. Separately, he filed requests with the FBI pursuant to 5 U.S.C. §§ 552a(e)(7) and (d)(2) of the Privacy Act, seeking expungement of all records maintained by the FBI describing his exercise of his First Amendment rights. The FBI ultimately denied Garris’ administrative requests for expungement of records.

Garris subsequently filed his First Amended Complaint, adding, as relevant here, a claim alleging that the FBI’s creation and maintenance of the 2004 Memo violates § 552a(e)(7) of the Privacy Act, which provides that an agency shall not maintain any "record describing how any individual exercises rights guaranteed by the First Amendment unless ... pertinent to and within the scope of an authorized law enforcement activity." 5 U.S.C. § 552a(e)(7).

In July of 2015, Garris issued deposition subpoenas for the two retired FBI agents who had written the 2004 Memo. The FBI moved for a protective order to preclude the depositions, arguing that depositions are not necessary to decide summary judgment in Privacy Act § (e)(7) cases; that the evidence would be duplicative of the FBI’s interrogatory responses and the previously provided redacted files; that it would burden the non-party officers; and that the evidence would be irrelevant.

The district court granted the FBI’s motion "without prejudice to Plaintiffs’ renewal of their request for additional targeted discovery following receipt of Defendant’s Motion for Summary Judgment." At the hearing on the topic, the court reasoned that it would be premature to depose the former agents before learning what evidence the government would rely on, particularly given that it would be burdensome to the retired agents. Garris did not...