Yagman v. Pompeo

• Decision Date: 28 August 2017
• Docket Number: No. 15-55442,15-55442
• Citation: 868 F.3d 1075
• Parties: Stephen YAGMAN, Plaintiff–Appellant, v. Michael POMPEO; Central Intelligence Agency, Defendants–Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

868 F.3d 1075

Stephen YAGMAN, Plaintiff–Appellant,

v.Michael POMPEO; Central Intelligence Agency, Defendants–Appellees.

No. 15-55442

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 9, 2016 Pasadena, California

Filed August 28, 2017

Stephen Yagman (argued), Venice Beach, California; Joseph Reichmann, Yagman & Reichmann, Venice Beach, California; Plaintiff–Appellant.

Gerard Sinzdak (argued) and Matthew M. Collette, Attorneys, Appellate Staff; Stephanie Yonekura, United States Attorney; Civil Division, United States Department of Justice, Washington, D.C.; for Defendants–Appellees.

Before: A. Wallace Tashima and Richard A. Paez, Circuit Judges, and Paul L. Friedman,^** District Judge.

SUMMARY^*

OPINION

PAEZ, Circuit Judge:

Plaintiff Stephen Yagman filed suit against the Central Intelligence Agency ("CIA") and its director¹ (collectively, "Defendants") under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, seeking records identifying CIA personnel or affiliates that have engaged in torture. The district court held that because Yagman's request for records constituted a question that Defendants were not required to answer, he failed to exhaust administrative remedies. The court further concluded that exhaustion of administrative remedies was a jurisdictional requirement, and therefore dismissed Yagman's complaint for lack of subject matter jurisdiction. We have jurisdiction under 28 U.S.C. § 1291, and we reverse and remand for further proceedings consistent with this opinion.

I.

On August 2, 2014, Yagman sent Defendants a letter requesting "[r]ecords/information" on "the names and company/organization affiliations of any CIA employees, agents, operatives, contractors, mercenaries, and/or companies who are alleged to have engaged in torture of persons." Specifically, the letter sought the names and affiliations of those "as to whom President Obama stated that ‘we tortured some folks' on August 1, 2014: that is, who are the individuals whom the word ‘we’ refers to?"²

Within FOIA's twenty-day deadline, Defendants responded to Yagman with a letter advising him that "[u]nder the provisions of the FOIA, federal agencies are not required to answer questions posed as FOIA requests. Since your request does not constitute a request for records, we must decline to process it." Yagman reiterated his request in a subsequent letter, but Defendants reaffirmed their position.

Yagman then filed a class action complaint against Defendants to compel disclosure. Two months after service of the complaint, Defendants left two messages for Yagman instructing him to call the agency's FOIA hotline "to discuss his request." At his direction, Yagman's receptionist called the hotline. Defendants again asserted that the agency was unable to process Yagman's request, but they "expressed a willingness" to help him rework his request.

When Yagman did not contact the agency again, Defendants moved to dismiss Yagman's complaint for lack of subject matter jurisdiction. The district court granted Defendants' motion, holding that Yagman's letter did not constitute a request for records. The court concluded that Yagman's failure to submit a valid request was a failure to exhaust administrative remedies under FOIA, and, as a result, the court lacked subject matter jurisdiction. Yagman timely appealed.

II.

We review de novo the district court's dismissal for lack of subject matter jurisdiction. Leeson v. Transamerica Disability Income Plan , 671 F.3d 969, 974 (9th Cir. 2012).

III.

Congress enacted FOIA in recognition of the fact that government transparency is critical to a functioning democracy, but may be difficult to achieve against unwilling officials. John Doe Agency v. John Doe Corp ., 493 U.S. 146, 151–52, 110 S.Ct. 471, 107 L.Ed.2d 462 (1989). FOIA is therefore "broadly conceived," id . at 152, 110 S.Ct. 471 (quoting EPA v. Mink , 410 U.S. 73, 80, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973) ), favoring "full agency disclosure unless information is exempted under clearly delineated statutory language," id. (quoting Dep't of Air Force v. Rose , 425 U.S. 352, 360–61, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976) ). Even the clearly delineated exemptions, however, "do not obscure the basic policy that disclosure, not secrecy, is the dominant objective of the Act." Id. (quoting Rose , 425 U.S. at 361, 96 S.Ct. 1592 ). Accordingly, an agency must respond to any request for records that "(i) reasonably describes such records and (ii) is made in accordance with published [agency] rules" by promptly making the requested records available, 5 U.S.C. § 552(a)(3)(A), or, if applicable, by invoking one of FOIA's narrowly construed exemptions, see id. § 552(b).

In this case, Defendants neither produced the requested records nor invoked an exemption. Rather, Defendants rejected Yagman's letter as a question disguised as a FOIA request. Defendants alternatively argue that Yagman's request did not "reasonably describe" the records he sought and, therefore, did not trigger the CIA's duty to respond. Under either theory, Defendants argue that Yagman failed to exhaust his administrative remedies and, accordingly, the district court lacked subject matter jurisdiction.

We disagree, in all respects save one. Although Defendants were required to liberally construe Yagman's letter as a request for records, the request nonetheless failed to "reasonably describe" the records sought. But this failure bears on the merits of Yagman's claim, not on the district court's subject matter jurisdiction. We therefore reverse the district court's judgment, and remand.

A.

Our sister circuits have recognized that federal agencies have a duty to construe FOIA records requests liberally. Rubman v. USCIS , 800 F.3d 381, 389–91 (7th Cir. 2015) (explaining that the defendant agency was required to liberally construe plaintiff's request for "all documents" despite the ambiguity of the word "documents" in the request); Miccosukee Tribe of Indians of Fla. v. United States , 516 F.3d 1235, 1255 (11th Cir. 2008) (concluding that, even if ambiguous, the EPA was "obliged under FOIA to interpret [requests] ... liberally in favor of disclosure"); Nation Magazine, Wash. Bureau v. U.S. Customs Serv ., 71 F.3d 885, 890 (D.C. Cir. 1995) (concluding that the Customs Service should have liberally construed a request for records "pertaining to" Ross Perot as seeking even those records that were not specifically indexed under Perot's name).³

Indeed, the Department of Justice ("DOJ") itself has long issued guidance to federal agencies on the duty of liberal construction. See Dep't of Justice, Office of Info. Privacy, FOIA Update , Vol. XVI, No. 3 , at 4 (1995) ( "[A]gencies should interpret FOIA requests ‘liberally’ when determining which records are responsive to them." (quoting Nation Magazine , 71 F.3d at 890 )), available at https://www.justice.gov/oip/blog/foia-update-oip-guidance-determining-scope-foia-request (last visited July 31, 2017); see also Dep't of Justice, Office of Info. Privacy, Department of Justice Guide to the Freedom of Information Act: Procedural Requirements 27 (last updated July 11, 2016) ("[A]n agency ‘must be careful not to read [a] request so strictly that the requester is denied information the agency well knows exists in its files, albeit in a different form from that anticipated by the requester.’ " (quoting Hemenway v. Hughes , 601 F.Supp. 1002, 1005 (D.D.C. 1985) )), available at https://www.justice.gov/sites/default/files/oip/legacy/2014/07/23/procedural-requirements.pdf (last visited July 31, 2017).

We have not yet had the opportunity to consider the issue. But we are persuaded that a duty of liberal construction accords with the basic purpose of FOIA "to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed." NLRB v. Robbins Tire & Rubber Co ., 437 U.S. 214, 242, 98 S.Ct. 2311, 57 L.Ed.2d 159 (1978). Liberal construction is warranted to achieve the core purpose of FOIA: allowing the public to find out "what their government is up to ." Dep't of Justice v. Reporters Comm. for Freedom of Press , 489 U.S. 749, 773, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989) (quoting Mink , 410 U.S. at 105, 93 S.Ct. 827 (Douglas, J., dissenting)).

While we have rarely reviewed an agency's refusal to respond to a records request on the ground that it poses a question,⁴ applying the duty to liberally construe records requests easily resolves this initial issue. Liberally construed, Yagman requested "[r]ecords/information" identifying CIA employees or affiliates who have engaged in torture after September 11, 2001. The fact that Yagman's request references President Obama's August 1, 2014 statement does not transform Yagman's request into a question.⁵ See LaCedra v. Exec. Office for U.S. Attorneys , 317 F.3d 345, 347–48 (D.C. Cir. 2003) (concluding that an agency is required to "liberally" construe a request when the "drafter of a FOIA request might reasonably seek all of a certain set of documents while nonetheless evincing a heightened interest in a specific subset thereof"). We therefore hold that the district court erred in concluding that Yagman's request constituted a question rather than a request for records.

B.

The flaw of Yagman's FOIA request is its vagueness, not the way in which he framed it. As we observed in Marks , "FOIA requires that federal agencies make records available only upon a request which ‘reasonably describes' the records sought." Marks v. United States , 578 F.2d 261, 263 (9th Cir. 1978) (quoting 5 U.S.C. § 552(a)(3) ). Although "courts have been wary to prohibit this requirement from becoming a loophole through which federal agencies can deny the public access to legitimate information, it has been held that broad, sweeping requests lacking specificity are not permissible." Id.⁶ As Yagman submitted a poorly framed request with limited specifics, Defendants...