Broward Bulldog, Inc. v. U.S. Dep't of Justice

• Decision Date: 23 September 2019
• Docket Number: No. 17-13787,17-13787
• Citation: 939 F.3d 1164
• Parties: BROWARD BULLDOG, INC., a Florida not-for-profit corporation, Dan Christensen, founder, operator, and editor of the BrowardBulldog.com website, Plaintiffs-Appellants Cross Appellees, v. U.S. DEPARTMENT OF JUSTICE, Federal Bureau of Investigation, Defendants-Appellees Cross Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

939 F.3d 1164

BROWARD BULLDOG, INC., a Florida not-for-profit corporation, Dan Christensen, founder, operator, and editor of the BrowardBulldog.com website, Plaintiffs-Appellants Cross Appellees,

v.U.S. DEPARTMENT OF JUSTICE, Federal Bureau of Investigation, Defendants-Appellees Cross Appellants.

No. 17-13787

United States Court of Appeals, Eleventh Circuit.

September 23, 2019

Thomas Richard Julin, Anaili Medina Cure, Timothy J. McGinn, Raymond V. Miller, Jr., Gunster Yoakley & Stewart, PA, Kyle Teal, Buchanan Ingersoll & Rooney, PC, Miami, FL, for Plaintiffs-Appellants-Cross Appellees.

Dana Kaersvang, U.S. Attorney General's Office, H. Thomas Byron, III, U.S. Department of Justice, Civil Division, Appellate Staff, Washington, DC, Carlos Javier Raurell, Emily M. Smachetti, U.S. Attorney Service-Southern District of Florida, U.S. Attorney Service-SFL, Miami, FL, for Defendants-Appellees-Cross Appellants.

Charles David Tobin, Ballard Spahr, LLP, Washington, DC, for Amici Curiae American Society of News Editors, Association of Alternative Newsmedia, Dow Jones & Company, Inc., Fox Television Stations, LLC, Gannett Co., Inc., Gatehouse Media, LLC, Gray Television Group, Inc., Radio Television Digital News Association, Society of Professional Journalists, Tegna Inc., The Associated Press, The National Press Club, The National Press Photographers Association, The New York Times Company, The News Media Alliance, The Reporters Committee for Freedom of the Press, WP Company LLC.

David A. Terry, Cozen O'Connor, Atlanta, GA, for Amicus Curiae Daniel Robert Graham.

Carli Rodriguez-Feo, Pro Se Amicus Curiae.

Before WILLIAM PRYOR, MARTIN, and JORDAN, Circuit Judges.

WILLIAM PRYOR, Circuit Judge:

This appeal involves two requests for documents under the Freedom of Information Act, 5 U.S.C. § 552. In 2015, Broward Bulldog, Inc., a newspaper published in Florida, requested that the Federal Bureau of Investigation disclose documents reviewed by the 9/11 Review Commission. Broward Bulldog and its founder, Dan Christensen, contend that the Bureau has concealed a connection between the terrorists responsible for the attacks on September 11, 2001, and a Saudi family that lived in Florida. In response, the government disclosed hundreds of documents but redacted some information as falling within statutory exemptions, id. § 552(b)(1)–(9). Broward Bulldog challenged several redactions and argued that the Bureau failed to conduct an adequate search. In a thorough opinion, the district court granted summary judgment in favor of the government for most of the redactions, but ordered the government to disclose personal information redacted under Exemptions 6 and 7(C), as well as confidential-source information redacted under Exemption 7(D). Broward Bulldog and Christensen raise several challenges to the redactions, and the government cross-appeals the disclosures ordered by the district court. We conclude that, with the exception of its rulings regarding redactions under Exemptions 7(C), 7(D), and 7(E), the district court did not err. We affirm in part, reverse in part, and remand.

I. BACKGROUND

For years, Dan Christensen, the founder of a newspaper named Broward Bulldog, Inc., has doggedly maintained that a Saudi Arabian family that lived in Sarasota, Florida, had "troubling ties" with the hijackers responsible for the terrorist attacks on September 11, 2001. In 2011, Broward Bulldog published an article that stated that members of the family "abruptly left their luxury home" two weeks before the attacks, that they had contact with the hijackers, and that the Federal Bureau of Investigation investigated the family but failed to report the investigation to Congress. The Bureau immediately admitted in a press release that it investigated the family, but it denied that it found any connection between the family and the attacks.

Undeterred, in 2011 Broward Bulldog filed a request under the Freedom of Information Act for "records regarding the investigation of the family," and it sued the Bureau and the Department of Justice to compel a response. The Bureau disclosed many responsive documents, including a 2002 "Electronic Communication" by a Bureau agent. The agent stated that "[f]urther investigation of the ... family revealed many connections between the [family] and individuals associated with the terrorist attacks on 09/11/2001." The district court in that litigation recently issued an opinion resolving Broward Bulldog’s challenge, although it has not entered a final judgment. See Broward Bulldog, Inc. v. U.S. Dep’t of Justice (Broward Bulldog I ), No. 12-cv-61735-WJZ (S.D. Fla. Aug. 22, 2019).

A few years later, in 2014, Congress directed the Bureau to create a 9/11 Review Commission, also known as the Meese Commission, to review the implementation of recommendations made by an earlier commission. The Meese Commission reviewed the investigation of the Saudi family and concluded that "[t]he allegations that the family was connected to the hijackers and/or the 9/11 plot were not substantiated" and that the press accounts "were based on inaccurate information and a poorly written and innaccurate [sic] [electronic communication]."

Broward Bulldog filed two more requests for information in 2015. One request sought information reviewed by the Meese Commission, and the other asked for specific documents associated with the Commission. In June 2016, Broward Bulldog again sued the Bureau and the Department of Justice to compel a response to its requests.

The Bureau produced many documents in response to the requests. It first released 896 pages of records that it located in an "electronic storage site" for Commission records. It then released a few additional documents that it had mistakenly withheld, and it disclosed two names that it had previously redacted. Finally, in response to informal inquiries from Broward Bulldog, the Bureau searched a few other locations and disclosed several other records.

While the Bureau performed these additional searches, the government moved for summary judgment or moved to supplement a pending motion for summary judgment three times. In support of its motions, the government submitted a variety of public and sealed documents. It submitted public declarations by David Hardy, the section chief of the Record/Information Dissemination Section of the Records Management Division of the Bureau. It submitted sealed ex parte charts called Vaughn indices, see Vaughn v. Rosen , 484 F.2d 820 (D.C. Cir. 1973), that linked blocks of redacted text to the justifications for any exemptions asserted. And it submitted sealed copies of all the responsive documents for in camera review.

Broward Bulldog sought to depose Jacqueline McGuire, the Bureau agent who briefed the Commission, and the district court referred the matter to a magistrate judge. Broward Bulldog sought to depose McGuire to determine "the basis for her assertion that the ... ‘many connections’ memo was wholly unsubstantiated." According to Broward Bulldog, if she admitted that she had no basis for the assertion, then it could "establish the bad faith of the [Bureau]," and a finding of bad faith would, in turn, support its argument that the Bureau is "now asserting exemptions to disguise what [it] found, which was substantial Saudi support for the 9/11 attacks." But Broward Bulldog agreed with the magistrate judge that "to get discovery [it had] to show [the government’s] bad faith" in its disclosure, and Broward Bulldog repeatedly asserted that it had established the government’s bad faith.

The magistrate judge denied the motion. He explained that Broward Bulldog had not established that the government acted in bad faith in its disclosures and that Broward Bulldog was trying to prove that "the [Bureau] had bad faith in the way [it] conducted th[e] underlying investigation, not whether or not the [Bureau] ha[d] bad faith in classifying and disclosing documents." And it stated that, in any event, McGuire "would have no information in regards to ... whether or not something was properly exempted ... or whether or not the [Bureau] did a proper search, because ... there’s no evidence that she was involved in that process at all."

In an objection to this order, Broward Bulldog argued that the magistrate judge applied the wrong standard for proving the government’s bad faith. But the district court ruled that Broward Bulldog invited this error when it "agreed with [the magistrate judge that] the correct legal standard" to obtain discovery required a showing of bad faith by the government in its responses to the requests for documents. So it "decline[d] to review on appeal a discovery issue that was not properly presented to [the magistrate judge]."

The district court issued three orders to resolve a long list of merits disputes about the adequacy of the search by the Bureau and the applicability of different exemptions to different documents. It ruled that Hardy’s declarations established that the Bureau conducted an adequate search. It explained that "the law only requires [a] search be reasonable, not exhaustive" and that the declarations were "sufficiently detailed and non-conclusory, describing every step the [Bureau] took to identify responsive records." It also explained that the "conclusory" accusations by Broward Bulldog that the Bureau was "act[ing] in bad faith ... [we]re insufficient" to bar summary judgment for the government.

The district court approved several, but not all, of the redactions. It upheld the redactions made under Exemptions 1 and 3, which protect, among other things, national security information. See 5 U.S.C. §§ 552(b)(1), (b)(3). It reasoned that "[w]hile the burden of proof is on the [g]overnment, a reviewing court must recognize that the Executive departments responsible for national defense and foreign policy matters have unique insights into what adverse [e]ffects ... might occur as a result of public disclosure of a particular classified record." And...