On Friday, January 8, the Supreme Court will consider a petition for certiorari in EPIC v. DHS, a lawsuit by the Electronic Privacy and Information Center (EPIC) under the Freedom of Information Act (FOIA), seeking information about “Standard Operating Procedure 303,” the protocol that codifies a “shutdown and restoration process for use by commercial and private wireless networks during national crisis.” (Colloquially, SOP 303 is known as the “wireless kill-switch.”) Lurking behind the interesting subject-matter of EPIC’s FOIA request, though, is a very important (but little noticed) circuit split over the scope of FOIA’s “Exemption 7(F),” which allows the government to withhold “records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information … could reasonably be expected to endanger the life or physical safety of any individual.”
The central question raised by Exemption 7(F) is whether the government has to be able to identify with any specificity the “individual” whose life or physical safety might be endangered by disclosure of the requested law enforcement records. In 2008, the Second Circuit answered that question in the affirmative in ACLU v. Dep’t of Defense. In its February 2015 decision affirming the government’s rejection of EPIC’s FOIA request, the D.C. Circuit held expressly to the contrary. As I explain in the post that follows, not only is this division of authority sufficiently important so as to justify the Supreme Court’s intervention no matter how the Court ultimately rules, but, in my view, the Second Circuit clearly has the better reading of Exemption 7(F) as a matter of statutory purpose, structure, and policy.
I. The Second Circuit and the PNSDA
The story begins with FOIA requests filed in 2003 by the ACLU and other organizations seeking records related to the treatment and death of detainees held in US custody overseas after September 11, and records related to the practice of “rendering” some of those detainees to countries known to use torture. The litigation over the ACLU’s request eventually reduced to a dispute over at least 29 (and perhaps thousands of) photographs of detainees and detainee abuse in Afghanistan and Iraq. In June 2006, the district court ordered the release of 21 of those photographs (with proper redactions to alleviate privacy objections), and the government appealed, arguing that the photographs were covered by Exemption 7(F) insofar as their release would likely incite violence against US personnel in Afghanistan and Iraq.
The Second Circuit affirmed. Assuming without deciding that release of the photos would incite violence, the Court of Appeals nevertheless rejected the government’s reading of the term “any individual”:
The plain language of the phrase “endanger the life or physical safety of any individual” connotes a degree of specificity above and beyond that conveyed by alternative phrases such as “endanger life or physical safety.” It is true that the statute does not read “any named individual,” and we thus understand it to include individuals identified in some way other than by name—such as, for example, being identified as family members or coworkers of a named individual, or some similarly small and specific group. This does not, however, mean that the “individual” contemplated by exemption 7(F) need not be identified at all, or may be identified only as a member of a vast population. To the contrary, the legislature’s choice to condition the exemption’s availability on danger to an individual, rather than danger in general, indicates a requirement that the subject of the danger be identified with at least reasonable specificity.
As the Court of Appeals explained, this reading was only buttressed by the structure, history, and purpose of FOIA — and the extent to which other Exemptions, especially Exemption 1, seemed more specifically tailored to the kind of general and diffuse threats at issue in national security cases. As Judge Gleeson concluded, “It would be anomalous if an agency that could not meet the requirements for classification of national security material could, by characterizing the material as having been compiled for law enforcement purposes, evade the strictures and safeguards of classification and find shelter in exemption 7(F) simply by asserting that disclosure could reasonably be expected to endanger someone unidentified somewhere in the world.”
After unsuccessfully seeking rehearing en banc, the government then petitioned for certiorari from the Supreme Court. But while its petition was pending, Congress, at President Obama’s urging, enacted the Protected National Security Documents Act of 2009 (PNSDA), which amended FOIA to provide that any photograph that “relates to the treatment of individuals engaged, captured, or detained after September 11, 2001, by the Armed Forces of the United States in operations outside of the United States” may be withheld under Exemption 7(F), so long as the Secretary of Defense issues a certification “stating that disclosure of that record would endanger citizens of the United States, members of the United States Armed Forces, or employees of the United States Government deployed outside the United States.” Although the Secretary’s certification expires after three years, it is renewable at any time — and in perpetuity.
In light of the PNSDA’s enactment, the Supreme Court granted the government’s petition for certiorari, vacated the Second Circuit’s decision, and sent it back to the lower courts for further proceedings. And while litigation over the certifications that successive Secretaries of Defense have made under the PNSDA remains ongoing, the statute has largely served its purpose — creating an enhanced procedure for carving out a narrow class of sensitive documents that otherwise would not be covered by Exemption 7(F).
II. The D.C. Circuit’s Contrary Ruling
Armed with the Second Circuit’s reading of Exemption 7(F), the D.C. district court granted summary judgment to EPIC in its FOIA claim against DHS, holding that DHS failed to “identify the individuals [endangered by disclosure of SOP 303] with some degree of specificity.” On appeal, the D.C. Circuit reversed:
The FOIA provides no textual basis for requiring the Department, for purposes of Exemption 7(F), to identify the specific individuals at risk from disclosure, and to do so would be to “tak[e] a red pen” to the words chosen by Congress that are to be understood to have their ordinary meaning, absent indication to the contrary. Congress’ use in Exemption 7(F) of the word “any” is instructive. … Although there are statutory contexts in which “any” does not mean “any,” in the context of Exemption 7(F) the word “any” demands a broad interpretation.
Thus, the Court of Appeals centered its analysis on what it held out to be unambiguous text in Exemption 7(F), giving relatively terse consideration to the other arguments the Second Circuit marshaled in support of its narrower reading.
III. Why Certiorari Should Be Granted
The D.C. Circuit’s decision quite consciously created a circuit split — and an important one, at that. It’s no overstatement to suggest that the Second and D.C. Circuits receive a disproportionate chunk of major FOIA suits, and a clear and express division between them with such radically different views of the scope of Exemption 7(F) ought not to be left unresolved. In its Brief in Opposition to Certiorari, the Solicitor General tried to minimize the split, relying heavily on the argument that the Supreme Court’s vacatur of the Second Circuit’s 2008 decision means that there is no split, at all. But as EPIC explained (in my view, quite effectively) in its cert. reply, “when the Supreme Court vacates a judgment” in a GVR order (like the one in the ACLU case) “without addressing the merits of a particular holding,” that holding “continues to have precedential weight, and in the absence of contrary authority” the lower courts will not “disturb it.” And the whole point of the GVR order in the ACLU case was not to revisit the Court of Appeals’ analysis of Exemption 7(F), but rather to consider whether, by dint of the PNSDA, the photographs at issue could nevertheless lawfully be withheld from disclosure notwithstanding the Second Circuit’s reading of FOIA.
But don’t take my word for it. Panels of both the Second and D.C. Circuits (including the D.C. Circuit panel in EPIC itself) have continued to assume that the Second Circuit’s analysis of Exemption 7(F) is the law of that court. Whether those panels are correct about the effect of the GVR order or not is irrelevant; that they treat the ACLU opinion as precedential means that there is still very much a circuit split (by virtue of these later opinions if not the original 2008 ruling) — and one that the Justices need to resolve.
IV. Why the Second Circuit Has the Better Reading
All of the above goes to why the Supreme Court should grant certiorari, regardless of where the Justices ultimately come down on the scope of Exemption 7(F). But, in case it wasn’t already obvious, it’s my view that the Second Circuit has the far better reading of Exemption 7(F). Among other things, I don’t think the D.C. Circuit’s textual analysis is especially convincing, given that Congress added the term “any individual” to make clear that the Exemption could be invoked even where the individual in jeopardy was not a law enforcement officer (which was the original focus of the statute). In that context, it seems to me that the more important word is “individual” — that the government has to be able to identify a specific person whose life or safety would be jeopardized by disclosure. Otherwise, why would the government need to identify anyone? As the Second Circuit explained, “To construe the word ‘any’ to relieve the government of the burden of identifying an individual who could reasonably be expected to be endangered would be to read ‘individual’ out of the exemption,” which is exactly what the D.C. Circuit did.
And while the D.C. Circuit’s reading may be defensible in the abstract, it would have the effect, in practice, of converting Exemption 7(F) from a hyper-specific carve-out into a general one. As the Second Circuit warned, such an interpretation “would radically transform exemption 7(F) from a flexible but tailored protection for a fluid but limited class of persons into an alternative secrecy mechanism far broader than the government’s classification system.”
Finally, perhaps the strongest reason to endorse the Second Circuit’s reading of Exemption 7(F) is provided by the very litigation history summarized above: After that court’s 2008 decision, the Executive Branch went to Congress and obtained a new, narrower carve-out to solve the specific problem the Second Circuit’s decision raised — the PNSDA. That Congress chose that route, rather than overruling the Second Circuit’s interpretation of FOIA (which it easily could have done), underscores both (1) the soundness of the Second Circuit’s reading of Exemption 7(F); and (2) the Executive Branch’s ability to obtain narrower, statutory relief in sufficiently important cases — rather than a broad, judicial expansion of a hitherto-narrow exemption to FOIA that would apply to far broader fact patterns going forward.
Whatever one thinks of the PNSDA, it strikes me as the epitome of healthy inter-branch dialogue between the courts and the political branches. Affirming the D.C. Circuit’s decision in EPIC would allows the Executive Branch to sidestep that dialogue in perpetuity for law enforcement records the release of which remotely implicates national security — a category that’s only getting more expansive by the day.