no. 13-55172 for the ninth circuit naji jawdat hamdan, … · certificate of compliance certificate...

No. 13-55172

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NAJI JAWDAT HAMDAN, et al., Plaintiffs-Appellants,

v.

UNITED STATES DEPARTMENT OF JUSTICE, et al., Defendants-Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA

BRIEF FOR THE APPELLEES

STUART F. DELERY Assistant Attorney General

ANDRÉ BIROTTE, JR. United States Attorney

MATTHEW COLLETTE (202) 514-4214 H. THOMAS BYRON III

(202) 616-5367 Attorneys, Appellate Staff Civil Division, Room 7260 U.S. Department of Justice 950 Pennsylvania Ave., N.W. Washington, D.C. 20530

Case: 13-55172 03/06/2014 ID: 9005879 DktEntry: 30 Page: 1 of 74

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TABLE OF CONTENTS

JURISDICTIONAL STATEMENT......................................................................... 1

STATEMENT OF THE ISSUES PRESENTED FOR REVIEW ........................... 2

STATEMENT OF THE CASE ................................................................................ 3

SUMMARY OF ARGUMENT .............................................................................12

STANDARD OF REVIEW ....................................................................................17

ARGUMENT ..........................................................................................................18

I. The Government Conducted Searches Reasonably

Calculated To Locate Responsive Records. ......................................18

II. The Government Properly Withheld Information

Statutorily Protected From Disclosure. .............................................25

A. Exemptions 1 And 3 Protect National Security

Information. .......................................................................................26

B. Exemption 7(E) Protects Information Concerning

Law-Enforcement Investigations. ..................................................54

III. The Documents Produced To Plaintiffs Properly

Segregated Exempt Information From Responsive

Records. .................................................................................................62

CONCLUSION ......................................................................................................65

CERTIFICATE OF COMPLIANCE

CERTIFICATE OF SERVICE


ii

TABLE OF AUTHORITIES

Cases:

ACLU v. Department of Defense, 628 F.3d 612 (D.C. Cir. 2011) .......................52

Allard K. Lowenstein Intern. Human Rights Project v. DHS, 626 F.3d

678 (2d Cir. 2010) ............................................................................................60

Baker v. CIA, 580 F.2d 664 (D.C. Cir. 1978).........................................................47

Batton v. Evers, 598 F.3d 169 (5th Cir. 2010) .......................................................22

Berman v. CIA, 501 F.3d 1136 (9th Cir. 2007) ............ 17, 37, 38-39, 41-42, 52-54

Blackwell v. FBI, 646 F.3d 37 (D.C. Cir. 2011) .....................................................61

Bowen v. FDA, 925 F.2d 1225 (9th Cir. 1991) ......................................................58

Campbell v. SSA, 446 Fed. App’x 477 (3rd. Cir. 2011) .......................................19

Church of Scientology v. Department of the Army, 611 F.2d 738 (9th

Cir. 1979) ................................................................................................... 37, 43

CIA v. Sims, 471 U.S. 159 (1985) ................................................... 25, 36-37, 41, 53

Citizens Comm’n on Human Rights v. FDA, 45 F.3d 1325 (9th Cir.

1995) .................................................................................................................... 8

DiBacco v. Department of the Army, __ F. Supp. 2d __, 2013 WL

5377060 (D.D.C. September 26, 2013) ..........................................................50

Duggan v. SEC, 277 Fed. App’x 16 (1st Cir. 2008) ...................................... 22-23

Hale v. DOJ, 973 F.2d 894 (10th Cir. 1992), cert. granted, vacated &

remanded on other grounds, 509 U.S. 918 (1993) ......................................58

Halperin v. CIA, 629 F.2d 144 (D.C. Cir. 1980) ............................................ 38, 53


iii

Hunt v. CIA, 981 F.2d 1116 (9th Cir. 1992) ....................................... 17-18, 37, 50

Juarez v. DOJ, 518 F.3d 54 (D.C. Cir. 2008) .........................................................64

Krikorian v. Department of State, 984 F.2d 461 (D.C. Cir. 1993) ........................52

Lahr v. NTSB, 569 F.3d 964 (9th Cir. 2009) ............................................ 18, 22, 52

Lardner v. DOJ, 2005 WL 758267 (D.D.C. Mar. 31, 2005) .................................51

Larson v. Department of State, 565 F.3d 857 (D.C. Cir. 2009) ........... 38-40, 50, 52

Lion Raisins v. USDA, 354 F.3d 1072 (9th Cir. 2004) .................................. 37, 43

Mayer Brown LLP v. IRS, 562 F.3d 1190 (D.C. Cir. 2009) ............................ 60-61

Meeropol v. Meese, 790 F.2d 942 (D.C. Cir. 1986) ......................................... 18-19

Miller v. Casey, 730 F.2d 773 (D.C. Cir. 1984) .....................................................17

NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214 (1978) ............................. 42-43

National Archives and Records Admin. v. Favish, 541 U.S. 157 (2004) ........ 14, 59

Oglesby v. Department of the Army, 920 F.2d 57 (D.C. Cir. 1990) .....................18

Pacific Fisheries, Inc. v. United States, 539 F.3d 1143 (9th Cir. 2008) .......... 62-63

Phillippi v. CIA, 655 F.2d 1325 (D.C. Cir. 1981) ..................................................53

SafeCard Servs., Inc. v. SEC, 926 F.2d 1197 (D.C. Cir. 1991) .............................25

Smith v. ATF, 977 F. Supp. 496 (D.D.C. 1997) ....................................................60

Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415

U.S. 977 (1974) ................................................................................................... 7

In re Wade, 969 F.2d 241 (7th Cir. 1992) ..............................................................22


iv

Wiener v. FBI, 943 F.2d 972 (9th Cir. 1991) ................................................... 39-42

Wilbur v. CIA, 355 F.3d 675 (D.C. Cir. 2004) ......................................................19

Wilkinson v. FBI, 633 F. Supp. 336 (C.D. Cal. 1986) ..........................................59

Wilner v. NSA, 592 F.3d at 60 (2d Cir. 2009) ......................................................38

Wolf v. CIA, 473 F.3d 370 (D.C. Cir. 2007) ..........................................................52

Zemansky v. EPA, 767 F.2d 569 (9th Cir. 1985) ..................................................18

Statutes:

5 U.S.C. § 552(a)(4)(B) .......................................................................................1, 42

5 U.S.C. § 552(a)(6)(E)(iii) ....................................................................................... 1

5 U.S.C. § 552(b) .....................................................................................................25

5 U.S.C. § 552(b)(1) ............................................................................................3, 26

5 U.S.C. § 552(b)(3) ............................................................................................3, 27

5 U.S.C. § 552(b)(3)(A)(i)-(ii) ................................................................................27

5 U.S.C. § 552(b)(3)(B) ...........................................................................................27

5 U.S.C. § 552(b)(7)(E) ...................................................................... 3, 54-55, 59-60

5 U.S.C. § 552(c) .....................................................................................................12

5 U.S.C. §§ 701-706 .................................................................................................. 1

10 U.S.C. § 424 ...................................................................................... 10, 27, 43-45

10 U.S.C. § 424(a) ...................................................................................................47

10 U.S.C. § 424(a)(1) ................................................................................. 46, 48, 49

10 U.S.C. § 424(a)(2) ....................................................................................... 46, 48

28 U.S.C. § 1291 ........................................................................................................1

28 U.S.C. § 1331 ....................................................................................................... 1

50 U.S.C. §§ 3023-3024 ..........................................................................................51


v

50 U.S.C. § 3024(i)(1) ................................................................ 27-28, 44-46, 49-51

50 U.S.C. § 3507 ......................................................................................................47

50 U.S.C. § 403-1(i)(1) ......................................................................... 28, 44, 49, 51

50 U.S.C. § 403g ......................................................................................................47

Executive Orders:

Executive Order 13526, 75 Fed. Reg. 707 (Dec. 29, 2009) .... 16, 26-27, 29, 31-36


IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

No. 13-55172

NAJI JAWDAT HAMDAN, et al., Plaintiffs-Appellants,

v.

UNITED STATES DEPARTMENT OF JUSTICE, et al., Defendants-Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA

BRIEF FOR THE APPELLEES

JURISDICTIONAL STATEMENT

Plaintiffs invoked the district court’s jurisdiction under 5 U.S.C.

§ 552(a)(4)(B) and 28 U.S.C. § 1331. ER 682.1 On December 11, 2012, the

district court granted summary judgment to the defendant government

agencies. ER 1. Plaintiffs filed a notice of appeal on January 25, 2013. ER 9.

This Court has jurisdiction pursuant to 28 U.S.C. § 1291.

1 Plaintiffs also cited 5 U.S.C. § 552(a)(6)(E)(iii) and 5 U.S.C. §§ 701-

706, which do not confer jurisdiction. ER 682.


2

STATEMENT OF THE ISSUES PRESENTED FOR REVIEW

In July 2010, plaintiffs submitted extremely broad requests for

information, pursuant to the Freedom of Information Act (FOIA), to

various intelligence, national security, and law-enforcement agencies, as

well as the Department of State. The requests sought information related

to three individuals and a business, as part of plaintiffs’ effort to determine

whether the United States had any involvement in the detention and

treatment of one of the individuals in the United Arab Emirates. Plaintiffs

then brought this suit in district court, raising a wide variety of issues and

arguments to challenge the FOIA responses of 14 United States

government agencies or components. The district court granted summary

judgment for the government. The only issues remaining on appeal are:

1. Whether the Federal Bureau of Investigation (FBI) and the

Department of State (State) complied with FOIA’s requirement to search

for responsive records.

2. Whether documents withheld or redacted by FBI and the

Defense Intelligence Agency (DIA) are exempt from disclosure under FOIA


3

Exemptions 1, 3, and 7(E), which protect (respectively) properly classified

national security information, records that are specifically exempted from

disclosure by statute, and law enforcement records where production

would disclose techniques and procedures for law enforcement

investigations or prosecutions. See 5 U.S.C. § 552(b)(1),(3),(7)(E).

3. Whether the government properly segregated exempt

information from the records produced to plaintiffs.

STATEMENT OF THE CASE

1. Plaintiffs submitted a FOIA request to multiple government

agencies, seeking “any records * * * relating to or concerning” three named

individuals (Naji Hamdan, Hossam Hemdan, and Jehad Suliman) and a

business once owned by Hamdan and managed by Suliman called

Hapimotors. ER 729 (emphasis in original). The request sought any

information “prepared, received, transmitted, collected and/or maintained”

by the Departments of Justice, State, Defense, and Homeland Security, and

the Central Intelligence Agency, “and any of their sub-agencies or

divisions.” Ibid. (emphasis in original). Plaintiffs’ letter was specifically


4

addressed to 18 named government agencies or components. ER 723-726.

The request also made clear that plaintiffs sought not only files specifically

pertaining to any of the individuals or the business by name, but also any

files “that may be cross-listed, cross-referenced or contained in the main

file pertaining to another individual or entity,” and to “the entirety of any

document that includes the name of any of the requestors.” ER 729-730.

The letter also sought expedited processing of the request, and waiver of

fees and costs. ER 731-734. The request was dated January 29, 2009, but

was apparently sent in 2010. ER 680.

In August 2010, after some agencies had responded, and while others

were still processing the FOIA requests, plaintiffs filed a complaint in

district court, which they subsequently amended. ER 678-721. The

agencies continued to process the requests, and sought to coordinate with

plaintiffs to minimize the areas of disagreement to the extent possible.

During the course of the litigation, defendants produced extensive

information to plaintiffs.


5

FBI searched its Central Records System (CRS), which includes all of

the agency’s “administrative, applicant, criminal, personnel and other files

compiled for law enforcement purposes.” ER 237, 606. Searches of CRS are

made using the Automated Case Support System, which “can be described

as an internal computerized subsystem of the CRS.” ER 238, 606; see also

ER 238-240, 606-608. FBI also searched its Electronic Surveillance (ELSUR)

indices, which maintain information on communications intercepted by

FBI surveillance. ER 240-241, 256-257. The FBI searches identified 771

pages of responsive records, including reports, memoranda, email

messages, and other documents, of which FBI released 521 pages in full or

in part, withholding 250 pages in full. ER 234, 237 & n.3, 601. FBI withheld

information pursuant to FOIA exemptions 1, 5, 6, 7(C), 7(D), and 7(E),

protecting classified national security information, information subject to

attorney-client and work-product privileges, personal privacy information,

information relating to law enforcement confidential sources, and

information that would reveal investigative techniques and procedures

used in law-enforcement investigations. ER 234-235 & n.1, 242-256, 610-


6

638. DIA identified 20 classified records – including electronic message

traffic, finished intelligence products, and other intelligence information –

that were responsive to plaintiffs’ request, and seven others that were not

responsive but included at least one piece of responsive information. All

27 records (a total of 165 pages) were exempt from disclosure pursuant to

FOIA Exemptions 1, 3, and 6 because they contained classified national

security information, information that would reveal DIA functions or

intelligence sources and methods, and personal privacy information. ER

266, 575-576, 578-599.2

After completing that processing, FBI and DIA, along with all of the

other government agency defendants except State, moved for summary

judgment. That motion and the reply were accompanied by over 1200

pages of declarations and other supporting information constituting the

Vaughn index, explaining the agencies’ actions in response to the FOIA

2 Other agencies also produced large numbers of responsive records,

withholding some information pursuant to FOIA’s statutory exemptions.

Because plaintiffs in this appeal only challenge some withholdings by FBI

and DIA, and searches by FBI and State, we have limited the description of

the proceedings accordingly.


7

request, and the reasons for withholding certain records in whole or in

part. See Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415

U.S. 977 (1974).

State subsequently completed processing, having identified 1,177

responsive records, and released 533 documents in full and 258 in part;

State withheld 386 documents in full. ER 226.3 The responsive records

included email messages, draft documents, letters, cables, memoranda,

legal filings, and diplomatic notes. In the course of processing the request,

State searched its Central Foreign Policy Records (the agency’s principal

record system), as well as 11 internal offices or components (including the

Bureau of Intelligence and Research, the Bureau of Near Eastern Affairs,

the Office of Overseas Citizens Services, the Office of the Coordinator for

Counterterrorism, and the offices of the Secretary, Deputy Secretary, and

Counselor) and 3 overseas posts (the U.S. Embassies in Abu Dhabi and

Beirut, and the U.S. Consulate General in Dubai). ER 160-163. Following a

stipulation with plaintiffs, State provided a detailed Vaughn index with

3 State later identified additional documents. See Pl. Br. 12 n.12.


8

more than 200 pages of additional declarations and other supporting

materials addressing a sample of withheld information (including

documents selected by plaintiffs, as well as other randomly selected

documents), and moved for summary judgment in April 2012. ER 54-67,

158-226; Dkt# 64; Dkt# 69.

2. The district court granted summary judgment to the

defendants, holding that the government had carried its burden of

providing declarations with reasonably detailed descriptions of the

documents at issue and describing the facts needed to establish the

applicability of appropriate exemptions for withheld information. See ER 3

(quoting Citizens Comm’n on Human Rights v. FDA, 45 F.3d 1325, 1329 (9th

Cir. 1995)).

The district court concluded that the government agency defendants

had “adequately addressed the Plaintiffs’ objections to their searches.” ER

3. Many of the disputes about the adequacy of the searches undertaken

“were based on misunderstandings of the relevant file systems or

databases, which Defendants have now explained and corrected.” Ibid.


9

Other questions about the searches “were based on unclear or inaccurate

responses from the Defendants which have now been corrected or

clarified.” Ibid. Defendants also “completed several additional searches

requested by Plaintiffs that were not done initially.” Ibid.

The district court also upheld the government’s invocation of the

Glomar doctrine, which permits an agency to respond by neither

confirming nor denying whether responsive records exist, where saying

anything more would itself disclose information protected from disclosure

by a FOIA exemption. “The affidavits establish that disclosing whether or

not the respective intelligence-related agencies possess documents

responsive to the requests would reveal classified information.” ER 4.

Specifically, the court acknowledged that the question whether “the

various national security agencies at issue have a covert relationship with

an individual or entity or an intelligence interest in a target is itself

classified, and is protected from disclosure by FOIA exemptions 1 and 3.”

Ibid. The court rejected plaintiffs’ speculation that the Glomar response

might have been invoked improperly, pointing out that “there is no


10

evidence that the relevant agencies” used the Glomar doctrine “to shield

illegal activity.” Ibid. Specifically, the court concluded that “there is no

evidence that any of the agencies asserting the Glomar Doctrine took part

in the torture” alleged by plaintiffs to have occurred while Hamdan was

detained in the United Arab Emirates. Ibid.

The district court concluded that the withheld information was

properly protected from disclosure by the claimed FOIA exemptions.

Information withheld by DIA was protected by Exemption 3 and 10 U.S.C.

§ 424. ER 4. And classified information from DIA and FBI was protected

by Exemption 1. Ibid. (“The Court finds that the classification claims are

sufficiently supported by the declarations and there is no reason to doubt

the veracity or good faith of the declarants.”).

The district court also held that FBI and DIA properly withheld

information about the identities of government employees under

Exemptions 6 and 7(C), where personal privacy interests were not

outweighed by a public interest in disclosure. ER 4-5. “Plaintiffs have not

specified how knowledge of particular low-level government employees’


11

names would further let citizens know what their government is up to, and

certainly have not established that any such interest outweighs the

government employees’ interests in not being publically revealed as

associated with the issues raised by Hamdan’s detention.” Ibid. (quotation

marks omitted). The court also upheld the applicability of Exemption 7(E)

to protect FBI information concerning law enforcement techniques and

methods. ER 4.

The district court separately addressed plaintiffs’ arguments

concerning State’s responses, holding that “the search undertaken by the

State Department was adequate,” and specifically concluding that “[i]t was

reasonable not to search the Bureau of Political-Military Affairs because

* * * [t]here is no reason to believe that Plaintiffs have been involved in any

formal military activities that would be within the purview of the Bureau.”

ER 5. The district court concluded that Exemption 1 protected the

classified documents withheld by State and there was “no reason to require

the State Department to provide more detailed, in-camera descriptions of

the classified documents or the documents themselves.” Ibid. Pre-


12

decisional and deliberative documents were protected by the deliberative

process privilege, and three documents were subject to attorney-client or

work-product privilege; all were properly withheld under Exemption 5.

ER 5-6. The court concluded that there is no “significant, countervailing

interest in disclosure” that would outweigh “the privacy interest in

withholding certain names of agency employees” under Exemptions 6 and

7(C): “It is not clear why Plaintiffs want to know the names of particular

individuals and they have provided no reason why such information

advances any legitimate interest that they might have.” ER 6.4

SUMMARY OF ARGUMENT

The multiple government agencies involved in this case have gone to

extraordinary lengths to process plaintiffs’ broad FOIA request quickly,

comprehensively, and with an eye to releasing as much information as

possible, consistent with the need to protect certain sensitive information.

4 Plaintiffs also questioned whether any records had been excluded

under 5 U.S.C. § 552(c). The district court observed that “Defendants have

adequately addressed 5 U.S.C. § 552(c) in the in camera submissions,” but

declined to “elaborate * * * in the interest of not inadvertently disclosing the

contents, or lack thereof, of the in camera documents.” ER 5, 7.


13

They have released substantial amounts of information, redacting only

what was necessary. And they have explained their responses to the FOIA

request, as well as the basis for the limited withholdings, in extensive

detail, comprising hundreds of pages of declarations and other

information. That record provided a solid basis for the district court’s

grant of summary judgment to the government, finding that defendants

had complied with their obligations under FOIA. That decision was

correct and should be affirmed.

Much of plaintiffs’ argument, like their FOIA request and their filings

in district court, consists of allegations about the treatment of one

individual, Naji Jawdat Hamdan, during his detention in the United Arab

Emirates while living in that country. Those allegations have no bearing

on the FOIA issues presented in this case. Moreover, although plaintiffs

continue to speculate that the United States government might have been

involved with Hamdan’s detention and mistreatment, there is, as the

district court correctly concluded, “no evidence that any of the agencies”

involved here “took part in the torture” or detention alleged by plaintiffs,


14

ER 4, or that they were even aware of it. That is so, despite years of

intensive and aggressive litigation by plaintiffs, who challenged the

government at every turn in this FOIA case. As the Supreme Court held in

another FOIA context, “[a]llegations of government misconduct are easy to

allege and hard to disprove, so courts must insist on a meaningful

evidentiary showing.” National Archives and Records Admin. v. Favish, 541

U.S. 157, 175 (2004) (internal quotation marks and citation omitted).

Despite the lack of evidence of any wrongdoing on the part of the

United States government, plaintiffs persist in assuming not only that the

government may have improperly withheld information beyond what

FOIA permits, but also that any withheld information would show

government wrongdoing. Both assumptions are incorrect and

unsupportable. There is no evidence that the United States government

had anything to do with any mistreatment of Hamdan in the United Arab

Emirates. But even if plaintiffs’ speculation had any factual basis, it would

not alter the analysis of the FOIA issues in this appeal. The government

has responded appropriately to plaintiffs’ FOIA requests.


15

Plaintiffs complain about the searches conducted by FBI and DIA.

But those arguments are based on misunderstandings of both the relevant

standard and the nature of the government’s records. The agencies

conducted appropriate searches reasonably calculated to identify

responsive records; plaintiffs’ request for additional searches would

impose undue burdens without any corresponding likelihood of

identifying responsive information.

Plaintiffs also challenge some of the limited information withheld by

DIA and FBI under Exemptions 1, 3, and 7(E). Exemption 1, which protects

properly classified national security information from disclosure, applies to

information described by FBI and DIA, disclosure of which could

reasonably be expected to cause damage (or serious or exceptionally grave

damage) to national security. The classified information at issue in this

case is well within the core of what the Executive Order contemplates must

be protected from public disclosure: intelligence sources and methods,

information relating to foreign relations or foreign activities, and

information provided by a foreign government. The Vaughn index explains


16

why the information is properly classified under Executive Order 13526,

and why disclosure would harm national security. The classified DIA

information is also protected by statute, as recognized by FOIA Exemption

3. Both a DIA-specific statute – which prohibits disclosure of information

that would reveal the functions of that agency – and the well-recognized

National Security Act – which protects intelligence sources and methods –

apply here and prohibit disclosure. And FBI is entitled to the protection of

Exemption 7(E), which protects information about law enforcement

techniques and methods.

Finally, plaintiffs complain that the district court should have made a

specific finding concerning segregability of exempt information from non-

exempt information. The record here, including the Vaughn index and the

redacted documents produced to plaintiffs, demonstrates that the

government agencies properly identified and released any reasonably

segregable non-exempt information.


17

STANDARD OF REVIEW

This Court uses a two-step process to review a district court’s grant

of summary judgment in a FOIA case. Berman v. CIA, 501 F.3d 1136, 1139

(9th Cir. 2007). First, this Court reviews de novo whether the documents

submitted by the agency provide an adequate factual basis for the district

court’s decision. Second, the Court reviews whether the district court was

correct in determining that the relevant FOIA exemptions applied,

reviewing the district court’s determination for clear error if it turned

“mainly on findings of fact,” and de novo if it turned on interpretation of

the law. Ibid.

In FOIA cases where the government relies on national security

considerations, invoking Exemptions 1 and 3, courts must “accord

‘substantial weight’ to [the agency’s] affidavits.” Hunt v. CIA, 981 F.2d

1116, 1119 (9th Cir. 1992) (quoting Miller v. Casey, 730 F.2d 773, 777 (D.C.

Cir. 1984)). This Court must defer to the agency’s assessment that

disclosing information could reveal the sources and methods of intelligence

gathering or harm the national security so long as the government’s


18

affidavits “describe the justifications for nondisclosure with reasonably

specific detail, demonstrate that the information withheld logically falls

within the claimed exemptions, and show that the justifications are not

controverted by contrary evidence in the record or by evidence of [agency]

bad faith.” Ibid.

ARGUMENT

I. THE GOVERNMENT CONDUCTED SEARCHES REASONABLY CALCULATED

TO LOCATE RESPONSIVE RECORDS.

Plaintiffs contend that FBI and State should have conducted

additional searches in response to the FOIA request here. But that

argument misunderstands both the legal obligation and the facts of this

case.

As this Court has recognized, FOIA requires an agency to show “that

it has conducted a search reasonably calculated to uncover all relevant

documents.” Zemansky v. EPA, 767 F.2d 569, 571 (9th Cir. 1985) (quotation

marks omitted), quoted in Lahr v. NTSB, 569 F.3d 964, 986 (9th Cir. 2009).

But “[t]here is no requirement that an agency search every record system.”

Oglesby v. Department of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990). Thus, “a


19

search need not be perfect, only adequate, and adequacy is measured by

the reasonableness of the effort in light of the specific request.” Meeropol v.

Meese, 790 F.2d 942, 956 (D.C. Cir. 1986). A plaintiff’s speculation that there

might be other documents to be found elsewhere does not undermine the

adequacy of a reasonable search. See, e.g., Campbell v. SSA, 446 Fed. App’x

477, 480-481 (3rd. Cir. 2011) (absence of particular documents that plaintiff

claims should be among responsive records does not establish that

agency’s search was unreasonable); Wilbur v. CIA, 355 F.3d 675, 678 (D.C.

Cir. 2004) (“the agency’s failure to turn up a particular document, or mere

speculation that as yet uncovered documents might exist, does not

undermine the determination that the agency conducted an adequate

search for the requested records”).

FBI and State both explained in detail the extensive searches

conducted, and why those searches were appropriate in light of plaintiffs’

request. ER 56-59, 163-172, 237-241, 256-258, 606-609. The district court

agreed that the agencies had made a reasonable effort calculated to identify


20

the relevant documents. ER 3, 5. That decision was correct and should be

affirmed.

Plaintiffs argue that FBI should also have searched several individual

email accounts, and also suggest that some unspecified additional searches

should have been done at two field offices and two legal attaché offices

abroad. See Pl. Br. 18.5 Their suggestion that “FBI searched only two

central databases,” Pl. Br. 19 (emphasis added), mistakenly assumes that

other databases or repositories exist that are likely to contain responsive

records. As FBI’s declarant (David M. Hardy) explained, however, FBI’s

central databases – the Central Records System and the Electronic

Surveillance indices – are the means by which FBI maintains its records

(throughout all its offices) for use in investigations and other operations.

ER 237-241, 606-608. All FBI records are indexed and searchable through

5 In district court, plaintiffs waived the argument that FBI should

have conducted searches in field offices and overseas legal attaché offices

by failing to raise it until their reply brief. See Dkt# 57, at 2-3; cf. Dkt# 42-1,

at 11-14. Accordingly, the government had no opportunity to respond.


21

those databases – otherwise, they would not be accessible to FBI personnel

when needed.

Hardy explained that all emails determined to qualify as records –

that is, those that are “appropriate for preservation” because they are

“important to a case or investigation,” based on an individual’s “judgment

similar to the decision to retain and file paper records” – are uploaded into

FBI’s Automated Case Support System. ER 257-258. The point is not that

every conceivable email message is necessarily uploaded or destroyed, see

Pl. Br. 20-21, 23, but that FBI’s search was reasonably calculated to identify

all relevant information – that is, all records that the agency properly

deemed appropriate for preservation (in operational decisions unrelated to

this or any other FOIA request). Plaintiffs suggest that FBI should have

searched multiple email systems and accounts because some records

produced by State included communications from alleged FBI personnel.

See Pl. Br. 21. They also argue that because FBI produced records that

referred to (for example) communications between FBI and State, FBI

should also have searched elsewhere for those original communications,


22

even if any additional documents would merely have been duplicative.

Ibid. Those arguments do not demonstrate that FBI’s search was

unreasonable in the circumstances. See Batton v. Evers, 598 F.3d 169, 176

(5th Cir. 2010) (“the issue is not whether other documents may exist, but

rather whether the search for undisclosed documents was adequate”)

(quoting In re Wade, 969 F.2d 241, 249 n. 11 (7th Cir. 1992)). As this Court

has recognized, “the failure to produce or identify a few isolated

documents cannot by itself prove the searches inadequate.” Lahr, 569 F.3d

at 988. Plaintiffs cannot prevail by suggesting there may be a few isolated

documents that were not uncovered by the reasonable searches undertaken

by FBI.

Finally, plaintiffs suggest that information in the CRS database might

not have been found because that comprehensive (and correspondingly

large) repository can only be searched by indexed identifiers, and they

believe those identifiers might not have included information about

plaintiffs. See Pl. Br. 23-24. But that is pure speculation, insufficient to

refute the reasonableness of the searches FBI conducted. See, e.g., Duggan


23

v. SEC, 277 Fed. App’x 16, 17 (1st Cir. 2008) (“appellant could not rely upon

mere innuendo and speculation to overcome” showing that agency “had

conducted a search that was reasonably calculated to disclose requested

documents”). Moreover, as Hardy explained, there is no other practical

method available to search FBI files. ER 608.

Plaintiffs also argue that State should have searched the files of the

Bureau of Political-Military Affairs (PM). See Pl. Br. 24-25. PM is State’s

“principal link to the Department of Defense * * * [and] provides policy

direction regarding military operations, defense strategy, and defense

trade, * * * [and] has the Departmental lead on issues such as military

exercises, diplomatic clearance for foreign vessels, and conventional

weapons destruction.” ER 56. Because “there is no apparent connection

between the plaintiffs and any of the military functions performed by PM,”

State reasonably concluded (and the district court agreed) that PM was

unlikely to have records that would be responsive to the FOIA request

here. Ibid.; see also ER 5 (district court decision).


24

Plaintiffs offer no reason to conclude that the records they sought had

any connection with PM’s discrete areas of responsibility. Instead of taking

issue with the district court’s conclusion, plaintiffs point to two documents

that they claim “make clear that consular officials communicated with

officials in the Bureau of Political-Military Affairs about this case.” Pl. Br.

25 (citing ER 113, 121). Even assuming that plaintiffs are correct that those

documents refer to PM, Grafeld explained that such a “passing reference to

a PM employee” does not overcome the fact that “there appears to be no

indication that PM was involved in any matters related to Mr. Naji

Hamdan and there is no apparent connection between the plaintiffs and

any of the military functions performed by PM.” ER 56.6 To the extent

6 The documents cited by plaintiff refer to “Abu Dhabi Pol/Mil,” ER

113, and “POL Mail,” ER 121. Publicly available sources make clear that

“Pol/Mil” and its variants typically refer to an embassy’s Political/Military

Affairs component, within the post’s Political Section, not to the separate

Bureau of Political-Military Affairs (PM) at State headquarters in

Washington, D.C. For example, a State telephone directory lists an

individual with the title “POL-MIL” as a “key officer” at the United States

Embassy Abu Dhabi. http://www.state.gov/documents/organization/-

111812.pdf (p. KO-61); cf. http://www.state.gov/documents/organization/-

112065.pdf (p. OD-46) (listing key officers in the Bureau of Political-Continued on next page.


www.state.gov/documents/organization/111812.pdf




25

there is any doubt, State’s judgment about the likelihood of responsive

records was amply supported by sound reasoning and is entitled to a

presumption of good faith. See, e.g., SafeCard Servs., Inc. v. SEC, 926 F.2d

1197, 1200 (D.C. Cir. 1991).

II. THE GOVERNMENT PROPERLY WITHHELD INFORMATION STATUTORILY

PROTECTED FROM DISCLOSURE.

The government here withheld only sensitive information subject to

statutory exemptions included as part of the FOIA scheme. FOIA requires

that federal agencies produce agency records in response to valid requests,

but not all information must be disclosed: “Congress recognized, however,

that public disclosure is not always in the public interest,” CIA v. Sims, 471

U.S. 159, 166-167 (1985), and it therefore enacted nine statutory exemptions

as part of FOIA that shield certain categories of information from

disclosure. See 5 U.S.C. § 552(b). Two of those statutory exemptions –

Exemptions 1 and 3 – protect specific national security and intelligence-

Military Affairs, abbreviated “PM”); see also, e.g., http://abudhabi.-

usembassy.gov/about-us/offices-and-departments/political-section.html

(including “Political/Military Affairs” among the responsibilities of the

Embassy’s Political Section). State did search the embassy in Abu Dhabi.

ER 170.


http://abudhabi.usembassy.gov/about-us/offices-and-departments/political-section.html

http://abudhabi.usembassy.gov/about-us/offices-and-departments/political-section.html

26

related information, including classified information concerning

intelligence sources, method, and activities. Another – Exemption 7(E) –

protects techniques and methods used in law-enforcement investigations.

The district court correctly held that FBI and DIA properly relied on those

statutory exemptions in withholding sensitive information that is protected

from disclosure. 7

A. Exemptions 1 And 3 Protect National Security Information.

Exemption 1 protects records that are “(A) specifically authorized

under criteria established by an Executive Order to be kept secret in the

interest of national defense or foreign policy and (B) are in fact properly

classified pursuant to such Executive Order.” 5 U.S.C. § 552(b)(1).

Executive Order 13526 establishes the requirements for classifying national

security information, and sets out specific categories of information subject

to classification, including “foreign government information,” “intelligence

activities,” “intelligence sources or methods,” and the “foreign relations or

7 Other defendants also withheld protected information pursuant to

statutory exemptions, but plaintiffs do not challenge those withholdings.


27

foreign activities of the United States, including confidential sources.” 75

Fed. Reg. 707, 709 (Dec. 29, 2009).

Exemption 3 incorporates the protections of other statutes, shielding

records that are “specifically exempted from disclosure by statute.” 5

U.S.C. § 552(b)(3). Exemption 3 applies if another statute “requires that the

matters be withheld from the public in such a manner as to leave no

discretion on the issue” or “establishes particular criteria for withholding

or refers to particular types of matters to be withheld.” 5 U.S.C.

§ 552(b)(3)(A)(i)-(ii).8 Two such statutes are at issue in this case. First, in

the National Defense Authorization Act for Fiscal Year 1997, Congress

enacted a provision that specifically exempts from disclosure

“organizational and personnel information * * * for specified intelligence

agencies” that are components of the Department of Defense, including

DIA. See 10 U.S.C. § 424. Second, the National Security Act of 1947, as

amended, provides that “[t]he Director of National Intelligence shall

8 For statutes enacted after October 28, 2009, a statute must also

specifically refer to FOIA Exemption 3. 5 U.S.C. § 552(b)(3)(B).


28

protect intelligence sources and methods from unauthorized disclosure.”

50 U.S.C. § 3024(i)(1) (formerly codified at 50 U.S.C. § 403-1(i)(1)).

1. Both FBI and DIA withheld properly classified information

under Exemption 1, and explained those withholdings in supporting

declarations, providing as much detail as possible.

a. Plaintiffs challenge some of FBI’s Exemption 1 withholdings:

they list seven documents withheld in full and nine in part, consisting of

approximately 52 pages with classified information. ER 276-277.9 The

documents include memoranda, reports, email messages, handwritten

notes, and drafts. Hardy, an original classification authority, explained

that the information at issue was classified at the Secret level because

unauthorized disclosure could be expected to cause serious damage to

national security. ER 613. He explained that the requirements for

9 One of the listed documents, FBI-ACLU-663, was not withheld

under Exemption 1, but under Exemptions 5, 6, and 7(C). See ER 373.

Some withheld information is not only covered by Exemption 1 but is also

subject to attorney-client and work-product privileges under Exemption 5,

which plaintiffs do not contest on appeal, further narrowing the scope of

the dispute before this Court. See ER 280-282, 284, 363, 365, 367, 369, 371.


29

classification pursuant to Executive Order 13526 were satisfied, and that

the information fell within two categories set forth in that Executive Order:

intelligence activities, sources and methods, pursuant to section 1.4(c) of

the Executive Order; and foreign relations or foreign activities, pursuant to

section 1.4(d). ER 613-614. For each of those categories, and for multiple

subcategories within section 1.4(c), he explained in substantial detail why

disclosure would cause serious damage to national security.

He first explained why classified information must be kept secret to

protect intelligence activities and methods. Disclosure of that classified

information “would reveal the actual intelligence activities and methods

used by the FBI against specific targets of foreign counterintelligence

investigations or operations; identify a target of foreign counterintelligence

investigation; or disclose the intelligence-gathering capabilities of the

activities or methods directed at specific targets.” ER 614. Disclosure

would harm national security for three specified reasons: “(1) disclosure

would allow hostile entities to discover the current intelligence-gathering

methods used; (2) disclosure would reveal current specific targets of the


30

FBI’s national security investigations; and (3) disclosure would reveal the

determination of the criteria used and priorities assigned to current

intelligence or counterintelligence investigations.” ER 615. That

information could allow hostile entities to “develop countermeasures

which would, in turn, severely disrupt the FBI’s intelligence-gathering

capabilities,” which “would also result in severe damage to the FBI’s efforts

to detect and apprehend violators of the United States’ national security

and criminal laws.” Ibid.

Then he identified the specific national security concerns warranting

classification of the particular documents: the documents at issue in this

appeal consist of memoranda, reports, email messages, handwritten notes,

and drafts that include information about “detailed intelligence activities,”

disclosure of which “would (a) reveal the actual intelligence activity or

method utilized by the FBI against a specific target; (b) disclose the

intelligence-gathering capabilities of the method; and (c) provide an


31

assessment of the intelligence source penetration of a specific target during

a specific period of time.” ER 247, 615.10

In addition to the section 1.4(c) category of intelligence sources and

methods, Hardy explained that two email messages are also properly

classified under section 1.4(d) of the Executive Order because they concern

foreign relations or foreign activities. ER 619.11 Those documents

“contain[] sensitive intelligence information gathered by the United States

either about or from a foreign country,” and disclosing it would

“jeopardize the fragile relationships that exist among the United States and

certain foreign governments.” Ibid. Disclosure of that information could

harm national security in multiple ways, including the prospect of other

governments engaging in “diplomatic or economic retaliation,” as well as

10 Plaintiffs do not challenge the withholding of classified information

on other grounds, including that disclosure would reveal the identity of

individual intelligence sources, classified file numbers assigned to specific

intelligence activities, or the character or title of the case for a specific type

of intelligence activity. ER 616-619. 11 Information withheld in those two documents is also subject to

attorney-client and work-product privilege under Exemption 5. ER 280-

281, 284, 361, 623, 624.


32

curtailing the intelligence activities and enabling hostile entities to assess

the capabilities of our intelligence activities and develop countermeasures.

Ibid.

Hardy concluded by explaining that he could not provide additional

detail about the classified information withheld under Exemption 1. In his

judgment as an original classification authority, “any greater specificity in

the descriptions and justifications * * * could reasonably be expected to

jeopardize the national security of the United States.” ER 248, 620.

b. DIA’s declarant (Alesia Y. Williams), a FOIA officer with

declassification authority, explained that the classified DIA information

meets the requirements of Executive Order 13526. DIA identified 27

classified intelligence records (a total of 165 pages) that were at least partly

responsive to plaintiffs’ request, all of which were exempt pursuant to

FOIA Exemptions 1, 3, and 6. Information in all 27 records remains

currently and properly classified pursuant to section 1.4(c) of Executive

Order 13526, in order to protect intelligence sources and methods. One of

the documents also remains classified to protect foreign government


33

information and the foreign relations of the United States pursuant to

sections 1.4(b) and 1.4(d) of the Executive Order.

As noted above, each of the 27 documents contains classified DIA

information that falls within section 1.4(c) of the Executive Order, which

protects intelligence sources and methods. The protection of these sources

and methods is critical to the successful completion of DIA’s mission. As

Williams explained, disclosing the details concerning how and where DIA

collects intelligence would materially assist our adversaries, causing harm

to the national security of the United States. DIA relies on a variety of

intelligence sources, which “can include individuals, foreign or American,

foreign entities, and the intelligence and security services of foreign

governments.” ER 583. Not surprisingly, confidentiality is an essential

part of DIA’s relationship with those sources, who “can be expected to

furnish information only when confident that they are protected from

retribution by the absolute secrecy surrounding their relationship to the

United States government.” Ibid. If a source’s identity were compromised,

he or she would be “extremely vulnerable to retaliation,” which can range


34

from “economic reprisals to possible harassment, imprisonment, or even

death.” Ibid. In addition, information concerning intelligence methods, the

means of collecting intelligence information to support essential United

States national security goals, must be protected from disclosure, which

could aid those who “seek to penetrate, avoid, or damage the intelligence

operations of the United States.” Ibid. Properly classified DIA information

in the records at issue here was withheld because it was obtained using

these classified intelligence sources and methods, and must be protected

from disclosure to avoid those harms to national security. ER 583-584.

One document containing classified source and method information

also includes foreign government information, protected under section

1.4(b) of the Executive Order, which provides an express presumption that

release of such information would cause damage to national security. See

75 Fed. Reg. 707. Williams explained that, “[a]s a general rule, information

obtained by the United States from a foreign government through

diplomatic channels is expected to be kept confidential,” and some foreign

government information is obtained “only after the United States accedes


35

to an express request to keep such information confidential.” ER 580-581.

As Williams explained in detail, breaching such a promise to a foreign

government can damage diplomatic relations, curtail future opportunities

to share information, and harm the careers and reputations of the foreign

government officials who supplied the information. Failing to “live up to

the terms of [those] commitments” can damage the “international

credibility” of the United States, and result in international friction or

retaliation, damaging the national security interests of the United States.

ER 581-582. Williams explained that the classified information in one

document “contains foreign government information” within the meaning

of the Executive Order, and its disclosure reasonably could be expected to

cause damage to the foreign relations of the United States. ER 582.12

12 Plaintiffs suggest in a footnote that Williams “fails to state whether

the information was provided with the ‘expectation’ that it would be ‘held

in confidence.’” Pl. Br. 35 n.22. But that argument fails to take account of

the overall discussion of the foreign government information at issue. See

ER 580-582. After quoting the definition of foreign government

information in the Executive Order, Williams discusses in detail the need to

keep confidential information obtained through diplomatic channels and

the principle of diplomatic confidentiality, concluding that the particular Continued on next page.


36

Finally, some of the information within the document containing

foreign government information and intelligence sources and methods was

classified pursuant to section 1.4(d) of the Executive Order, which protects

information if its disclosure would harm foreign relations of the United

States. Maintaining good relations with foreign governments is essential to

the United States generally, and to DIA’s successful performance of its

mission in particular. Those good relations are essential to intelligence

sharing among governments, which permits DIA to “acquire[] intelligence

it may not otherwise be able to obtain.” ER 584.

c. Plaintiffs contend that the declarations submitted here lack

sufficient details about the classified records at issue. See Pl. Br. 33-39. But

this Court, like the Supreme Court, has recognized that the very nature of

classified information often precludes additional detail in a public filing.

“It is conceivable that the mere explanation of why information must be

document at issue “contains foreign government information as defined by

E.O. 13,526.” ER 582. That explanation leaves no doubt that the document

is subject to the “principle of diplomatic confidentiality.” Ibid.


37

withheld can convey valuable information to a foreign intelligence

agency.” CIA v. Sims, 471 U.S. 159, 179 (1985), quoted in Berman, 501 F.3d

at 1142; see also, e.g., Hunt v. CIA, 981 F.2d 1116, 1120 (9th Cir. 1992) (“the

affidavits were as specific as possible given the nature of the information

the CIA sought to protect”). It is well established that the government

need not “disclose facts that would undermine the very purpose of its

withholding.” Lion Raisins v. USDA, 354 F.3d 1072, 1084 (9th Cir. 2004); see

also, e.g., Church of Scientology v. Department of the Army, 611 F.2d 738, 742

(9th Cir. 1979) (“the government need not specify its objections in such

detail as to compromise the secrecy of the information”).

In the realm of national security, courts properly defer to the

Executive’s judgment concerning the risks of disclosing classified

information. See, e.g., Sims, 471 U.S. at 179 (noting that the decisions of the

Director of Central Intelligence “are worthy of great deference given the

magnitude of the national security interests and potential risks at stake”);

Berman, 501 F.3d at 1141-1142 (“judges are poorly positioned to evaluate

the sufficiency of the CIA’s intelligence claims”). The Second Circuit


38

recently reiterated the appropriately “deferential posture in FOIA cases

regarding the uniquely executive purview of national security.” Wilner v.

NSA, 592 F.3d at 60, 76 (2d Cir. 2009) (quoting Larson v. Department of State,

565 F.3d 857, 865 (D.C. Cir. 2009)); see also ibid. (“We have consistently

deferred to executive affidavits predicting harm to the national security,

and have found it unwise to undertake searching judicial review. * * *

Recognizing the relative competencies of the executive and judiciary, we

believe that it is bad law and bad policy to second-guess the predictive

judgments made by the government’s intelligence agencies * * *.”) (citations

and quotation marks omitted); Halperin v. CIA, 629 F.2d 144, 148 (D.C. Cir.

1980) (“Judges * * * lack the expertise necessary to second-guess [] agency

opinions in the typical national security FOIA case.”). Thus, “courts are

required to give ‘great deference’ to the CIA’s assertion that a particular

disclosure could reveal intelligence sources or methods.” Berman, 501 F.3d

at 1140. Here, as in Berman, the “declaration[s] strike[] the appropriate

balance between justifying the applicability of the exemption with

sufficient specificity to permit [plaintiffs] meaningfully to challenge it and


39

the [government’s] need to avoid providing a description that is so specific

that it risks revealing protected sources and methods.” Id. at 1142.

Plaintiffs argue that additional detail is required by Wiener v. FBI, 943

F.2d 972 (9th Cir. 1991), but that case does not compel the disclosure of

classified details, nor does it preclude reliance on Exemption 1 where

information is, in fact, properly classified but cannot be described in

greater detail on the public record. The Court in Wiener made a record-

specific determination that “[t]he FBI did not disclose all it could” in that

case. Id. at 979. Not so here.

Plaintiffs describe the declarations in this case as “boilerplate.” E.g.,

Pl. Br. 33-34 (citing Wiener). But this Court used the term boilerplate quite

differently in Wiener, where the Court determined that the same non-

specific language had been used in that case and in a D.C. Circuit case

involving a different FOIA request. Wiener, 943 F.2d at 978 & n.7. And the

D.C. Circuit recently explained that there is nothing wrong with agencies

using “the same or similar language in different affidavits supporting

FOIA exemptions” because, “when the potential harm to national security


40

in different cases is the same, it makes sense that the agency’s stated

reasons for nondisclosure will be the same.” Larson, 565 F.3d at 868.

Wiener’s concern was not that similar language was used to express

similar concerns with respect to different documents (as in Larson and this

case), but that the justification in the Vaughn index in that case was not

specific to the information being withheld. Wiener quoted the FBI

declaration, and italicized the conditional language. Id. at 978

(emphasizing either, or, For example, and may). The declarations in this case

are specific to the particular withheld information, as much as possible

given the classified nature of the information. For example, Hardy

explained that one document – an FBI Electronic Communication

documenting reporting by an FBI asset – “contains detailed information

provided by human intelligence sources” that is “specific in nature and

reflects a specific vantage point from which the sources are reporting and if

disclosed, would identify the intelligence sources.” ER 617.13 It is not clear

13 This language is quite different from, and far more specific and

certain than, that criticized by the Court in Wiener, 943 F.2d at 978 (“For Continued on next page.


41

what more could be said without revealing the very classified information

that must be protected from disclosure (i.e., the specific information

provided by the sources or the specific vantage point that would lead to

disclosure), and plaintiffs offer no constructive suggestions.14 Nor can

plaintiffs prevail by suggesting (Pl. Br. 39) that references to “sources” are

fatal if only a single source is at issue, especially where the prior

paragraphs make clear that a single source is being protected. ER 616.

Moreover, there is no reason to believe that any additional details

about the classified information at issue here would enable plaintiffs to

litigate their FOIA arguments more effectively: “Because of the broad

deference we are to give the CIA under Sims, and because judges are

poorly positioned to evaluate the sufficiency of the CIA’s intelligence

claims, we doubt that the CIA’s provision of a more detailed declaration

example, this information may contain details obtained from a one-on-one

conversation between a source and another individual. It may be of such

detail that it pinpoints a critical time frame or reflects a special vantage

point from which the source was reporting.”) (quoting declaration). 14 Although plaintiffs criticize this explanation, see Pl. Br. 39, they

have not challenged the withholding of the document at issue, and those

arguments have been waived. See ER 276-277 (omitting FBI-ACLU-1-2).


42

would enable Berman to argue more effectively for their release.” Berman,

501 F.3d at 1142 (citation omitted) (citing Wiener, 943 F.2d at 983). Knowing

details about (for example) a particular human source whose identity is

classified would not better enable plaintiffs to advance an argument that

the identity of the source is not properly classified. Nor is it relevant to the

Exemption 1 analysis that plaintiffs seek to argue that Hamdan was

mistreated while detained in another country. Such a claim, even if true,

would not defeat the government’s reliance on Exemption 1 to protect

properly classified information.

Plaintiffs also point out (Pl. Br. 31-32) that FOIA permits in camera

review of withheld records or additional information, when necessary in

the discretion of the district court. See 5 U.S.C. § 552(a)(4)(B). But the

district court here was under no obligation to perform in camera review of

the classified information. The declarations and supporting information

were sufficient to permit the district court to determine the applicability of

the claimed exemptions, and the court here properly did so. Cf. NLRB v.

Robbins Tire & Rubber Co., 437 U.S. 214, 224 (1978) (“The in camera review


43

provision is discretionary by its terms, and is designed to be invoked when

the issue before the District Court could not be otherwise resolved; it thus

does not mandate that the documents be individually examined in every

case.”). In camera review is burdensome to the court and usually

unnecessary. If there had been any inadequacy in the record (which

includes as much unclassified detail as possible), the district court could

have required submission of classified declarations or even the documents

themselves (or a sample of them) for in camera review. But such review

should be rare and need only be undertaken if deemed necessary by the

district court. See Church of Scientology, 611 F.2d at 743 (“in camera

inspection is a procedure which the trial court need invoke only where it

finds inspection appropriate, in its discretion”); see also Lion Raisins, 354

F.3d at 1083 (“a district court may rely solely on ex parte affidavits only in

the exceptional case”) (quotation marks omitted).

2. a. DIA also invoked Exemption 3 to support its withholding

of the classified information at issue here. The agency relied on two

statutory mandates protecting the information from disclosure: First, 10


44

U.S.C. § 424 protects basic information about certain Defense Department

intelligence components, including DIA. That statute provides that “no

provision of law shall be construed to require the disclosure of – (1) the

organization or any function of [DIA]; or (2) the number of [employees]” or

details about those employees. Second, DIA invoked the National Security

Act of 1947, as amended, which provides that “[t]he Director of National

Intelligence shall protect intelligence sources and methods from

unauthorized disclosure.” 50 U.S.C. § 3024(i)(1) (formerly codified at 50

U.S.C. § 403-1(i)(1)).15

Williams explained that § 424 protects information, such as internal

phone numbers, email addresses, and office names and symbols, that could

identify DIA employees, as well as “information that would divulge an

intelligence collection function of the Agency that would risk harm to

15 Plaintiffs do not dispute that the two statutes at issue here – 10

U.S.C. § 424 and 50 U.S.C. § 3024(i)(1) are properly considered Exemption 3

statutes. See Pl. Br. 40 n.26.


45

national security.” ER 585.16 DIA withheld the identities of “the countries

and international organizations with which DIA shares intelligence

information” to the extent that information would reveal a DIA

intelligence-collection function. Identifying countries that DIA chooses to

share (or not share) specific intelligence with would “give[] insight into a

critical intelligence function.” Ibid. DIA is specifically charged by

Executive Order with “conduct[ing] foreign defense intelligence liaison

relationships and defense intelligence exchange programs” with foreign

governments and other entities. ER 585-586. Thus, the withheld

information is protected by § 424 because disclosure would reveal a

“function” of DIA (the foreign governments with which the agency does or

does not share intelligence), which Congress specifically exempted from

disclosure.

Williams explained that the withheld classified information is also

protected from disclosure by the National Security Act, 50 U.S.C.

16 Plaintiffs concede that information that would identify DIA

employees is protected by 10 U.S.C. § 424. See Pl. Br. 40.


46

§ 3024(i)(1), because the information “involved sources and methods used

by the intelligence agencies of the United States Government.” ER 266.

The information at issue “would illustrate with clarity which sources and

methods are used to conduct the intelligence collection mission.” Ibid.

Foreign governments that share intelligence information with DIA are

intelligence sources, and the sharing of intelligence between DIA and

specific foreign governments is a method of intelligence; both are protected

by the National Security Act.

b. Plaintiffs argue that, because 10 U.S.C. § 424(a)(2) protects the

identities of DIA employees from disclosure, § 424(a)(1) should not be read

to protect an intelligence function from disclosure where plaintiffs seek to

learn the identity of a foreign government. See Pl. Br. 41-42. They suggest

that the statutory protection of employees’ identities would be rendered

superfluous if another provision protects the functions of those same

employees. But that is a non sequitur. The statute protects both the

functions of the agency, in § 424(a)(1), and the identities of its employees,

in § 424(a)(2). Revealing the foreign governments with which DIA shares


47

(or does not share) intelligence would reveal a function of the agency, not

the identity of an employee.17

For the same reason, § 424(a) is meaningfully distinct from a separate

statute that limits disclosure of specific CIA information: “the organization,

functions, names, official titles, salaries, or numbers of personnel employed

by the Agency.” 50 U.S.C. § 3507 (formerly 50 U.S.C. § 403g). Plaintiffs

argue (Pl. Br. 42) that § 424(a) should be construed narrowly because a D.C.

Circuit decision characterized § 403g as “creat[ing] a very narrow and

explicit exception to the requirements of the FOIA.” Baker v. CIA, 580 F.2d

664, 670 (D.C. Cir. 1978).18 The court in Baker concluded that “[o]nly the

specific information on the CIA’s personnel and internal structure that is

listed in the statute will obtain protection from disclosure.” Ibid. But that

17 For this reason, plaintiffs gain nothing by citing (Pl. Br. 41) two

district court decisions construing § 424(a)(2) in the context of protecting

the identity of DIA personnel. 18 Baker did not narrowly construe the statute, but held that the

information at issue in that case (information about CIA personnel) was

protected from disclosure. See 580 F.2d at 670 (“we affirm the district

court’s decision that the personnel materials requested by the appellants

were properly withheld by the CIA under exemption 3 of the FOIA”).


48

statement would only be relevant to the extent plaintiffs sought

information about DIA personnel (under § 424(a)(2), which is arguably

similar, though not identical to the CIA statute); it is not instructive with

respect to the protection of the DIA’s functions under § 424(a)(1), which

does not share a corollary provision in the CIA statute.

Plaintiffs also argue that DIA’s “function[s]” should be understood

only at the most general level – to include the fact that “DIA generally

communicates with foreign countries,” but not “the names of countries and

organizations with whom it shares information and the contents of their

communications.” Pl. Br. 42-43. But they cite no support for that

interpretation, and it would make no sense. As the record here reflects, it is

publicly known that one of DIA’s functions is to share intelligence

information with other governments. See ER 592 (citing Executive Order).

There is accordingly no need to protect that general information from


49

disclosure, and limiting the effect of § 424(a)(1) in such a way would

largely render that provision of the statute meaningless.19

Plaintiffs also seek additional detail about the information withheld

under § 424. See Pl. Br. 43-44. But in the national security context, as we

have explained supra, it is often the case that no more detail can be

provided on the public record without disclosing the very secrets that need

to be protected.

There is, in any event, no need to resolve those questions about the

scope of § 424. Settled precedent confirms that Exemption 3, in conjunction

with the National Security Act, supports the withholding of the DIA

information at issue. The National Security Act protects from disclosure

“intelligence sources and methods.” 50 U.S.C. § 3024(i)(1) (formerly

codified at 50 U.S.C. § 403-1(i)(1)). This Court has described that statutory

19 Plaintiffs argue that the plain language of § 424 should not be given

effect if a DIA function could be understood as “involv[ing] the potential

abduction and torture of U.S. citizens.” Pl. Br. 43. Apart from the absence

of any factual support for plaintiffs’ speculation (there is no basis to

assume that DIA had a role in any such abduction or torture), there is

nothing in the statute to support plaintiffs’ interpretation.


50

mandate as a “near-blanket FOIA exemption.” Hunt, 981 F.2d at 1120.

Under the statute, this Court need only decide “whether the withheld

material relates to intelligence sources and methods.” Larson, 565 F.3d at

865.20

Plaintiffs first suggest (Pl. Br. 44) that only the Director of National

Intelligence, not the DIA, is entitled to invoke that statute, but that

argument is plainly wrong, and plaintiffs cite no authority for it.21 The

National Security Act requires the Director of National Intelligence to

“protect intelligence sources and methods from unauthorized disclosure.”

20 Plaintiffs suggest in passing, but do not argue, that the

government’s reliance on the National Security Act might have been

waived. See Pl. Br. 44. But the government explained that there is no bar

to providing additional bases supporting withholding information subject

to an existing exemption claim, and the district court did not disagree. See

ER 230-231 n.16 (citing cases). 21 We are not aware of any court of appeals decision addressing the

question, but the district court for the District of Columbia has expressly

rejected the argument advanced by plaintiffs, holding that “agencies other

than the Director of National Intelligence may rely upon the National

Security Act to withhold information regarding intelligence sources and

methods pursuant to FOIA exemption (b)(3).” DiBacco v. Department of the

Army, __ F. Supp. 2d __, 2013 WL 5377060, *11 (D.D.C. September 26, 2013)

(citing cases).


51

50 U.S.C. § 3024(i)(1) (formerly codified at 50 U.S.C. § 403-1(i)(1)). But the

statute does not specify or limit how the Director should ensure that sources

and methods are safeguarded in litigation. Rather, this obligation is one of

several high-level duties given to the Director as the head of the

intelligence community. See 50 U.S.C. §§ 3023-3024. It strains credulity to

suggest that Congress, in creating this important position overseeing more

than a dozen intelligence agencies, intended for the Director to become

personally involved in every case that threatened to disclose the

government’s intelligence sources and methods. The Director may fulfill

his statutory mandate by the actions of the intelligence agencies he

oversees.22

22 Similarly, even though a privilege in civil litigation might need to

be asserted by a particular government official, that does not preclude an

agency FOIA officer from justifying the withholding of privileged

information under a FOIA exemption. See, e.g., Lardner v. DOJ, 2005 WL

758267, at *6 (D.D.C. Mar. 31, 2005) (“Even assuming that the President

must personally invoke the presidential communications privilege in civil

discovery, * * * this rule should not be imported into the far different

context of FOIA.”).


52

Exemption 3 claims under the National Security Act have always

operated this way. Courts of appeals – including this Court – have for

decades upheld Exemption 3 claims made by persons other than the

Director of National Intelligence (or the Director of Central Intelligence

before him), and indeed have continued to uphold Exemption 3 claims

asserted by CIA officials even after the statutory duty to protect

intelligence sources and methods was transferred from the CIA Director to

the Director of National Intelligence. See, e.g., ACLU v. Department of

Defense, 628 F.3d 612, 625 (D.C. Cir. 2011) (CIA); Berman, 501 F.3d at 1140

(CIA); Lahr, 569 F.3d at 985 (National Security Agency); Larson, 565 F.3d at

865, 868-869 (CIA and National Security Agency); Wolf v. CIA, 473 F.3d 370,

378 (D.C. Cir. 2007) (CIA); Krikorian v. Department of State, 984 F.2d 461, 466

(D.C. Cir. 1993) (State Department).

Finally, plaintiffs suggest that the identities of foreign governments

cannot be intelligence sources and methods within the meaning of the

National Security Act. See Pl. Br. 44-45. That argument is directly

foreclosed by Supreme Court and Circuit precedent. The definition of


53

sources and methods under the National Security Act is broad: “The ‘plain

meaning’ of [the Act] may not be squared with any limiting definition that

goes beyond the requirement that the information fall within the Agency’s

mandate to conduct foreign intelligence.” Sims, 471 U.S. at 169; see also,

e.g., Berman, 501 F.3d at 1140 (“The term ‘sources’ is to be broadly

construed and encompasses not only ‘secret agents,’ but instead reaches all

sources of information the [intelligence agency] relies upon, including

publicly available information.”). The Supreme Court and this Court have

further made clear that the Executive Branch receives “great deference” in

determining what types of information constitute sources and methods of

intelligence gathering. Sims, 471 U.S. at 179; Berman, 501 F.3d at 1140; see

also Phillippi v. CIA, 655 F.2d 1325, 1332 (D.C. Cir. 1981) (CIA affidavits on

Exemption 3 claims are to be accorded substantial weight); Halperin, 629

F.2d at 147-148 (same). Indeed, the deference due when the government

invokes Exemption 3 and the National Security Act is even greater than the

(already substantial) deference due to the government’s view about the


54

harm to national security from disclosure of classified information under

Exemption 1. See Berman, 501 F.3d at 1142 n.3.

Moreover, as we have already explained, the withheld information is

properly classified national security information, and protected by

Exemption 1 in any event. Thus, for plaintiffs to prevail, they must show

that both Exemption 1 and Exemption 3 are inapplicable. Because the

sensitive intelligence information at issue here is protected from disclosure

by multiple, overlapping authorities, this Court should reject plaintiffs’

effort to require greater disclosure.23

B. Exemption 7(E) Protects Information Concerning Law-

Enforcement Investigations.

1. Exemption 7(E) applies where release of information (1)

“would disclose techniques and procedures for law enforcement

investigations or prosecutions,” or (2) “would disclose guidelines for law

enforcement investigations or prosecutions if such disclosure could

23 Even if plaintiffs were to prevail, the only appropriate relief at this

stage would be to provide the government with an opportunity to offer

additional, in camera and ex parte explanations of the reasons that the

withheld information comes within the FOIA exemptions.


55

reasonably be expected to risk circumvention of the law.” 5 U.S.C.

§ 552(b)(7)(E).24 FBI withheld three categories of information under

Exemption 7(E): information that would reveal “procedures and techniques

used by FBI agents to conduct national security investigations,”

information identifying the location and identity of FBI units involved in

the investigations at issue, and the dates and types of investigations

(whether preliminary or full investigations), as well as the basis for

initiating the investigations. ER 254-256, 636-638. Of those, plaintiffs

challenge only information in the first category, withheld from five

documents in full and 10 documents in part (eight of those also include

information withheld under Exemption 1, and are included in the nine

partially withheld documents discussed above). ER 276-277.25 Those

24 Plaintiffs suggest in a footnote that the district court applied the

wrong standard to address Exemption 7(E). See Pl. Br. 45 n.29. While the

court referred to balancing the public interest in disclosure against the

“privacy and law enforcement efficacy interests at stake,” ER 4, any error

was harmless because Exemption 7(E) is not subject to balancing. 25 Some of the information withheld under Exemption 7(E) is also

subject to withholding under Exemption 5, because it is privileged (which

plaintiffs do not challenge on appeal), as well as Exemption 1. ER 281-282.


56

documents consist of internal FBI e-mails, reports, memoranda, internal

FBI forms, and database search printouts regarding investigations

conducted by FBI.

The information protected here concerns law enforcement

“techniques and procedures related to surveillance and credit searches,” as

well as (with respect to one document) “a stratagem [employed by FBI], the

details of which if revealed would preclude its use in future cases.” ER

258, 254. Hardy explained that revealing additional information about the

procedures and techniques used in national security investigations “could

enable subjects of FBI investigations to circumvent similar currently used

techniques and procedures used by law enforcement,” which would

diminish the benefit of those techniques and procedures. ER 254, 259, 636.

Moreover, the “accumulation of information by other investigative subjects

* * * could enable criminals to educate themselves,” allowing them “to take


57

countermeasures to circumvent the effectiveness of these techniques and

procedures and to continue to violate the law.” Ibid.26

2. Plaintiffs seek additional details about the nature of the

investigative techniques at issue. See Pl. Br. 47-48. In district court, Hardy

provided some additional detail – again, as much as possible without

disclosing the information required to be kept secret. See ER 258

(“techniques and procedures related to surveillance and credit searches”);

ER 254 (“a stratagem, the details of which if revealed would preclude its

use in future cases”).27 The techniques and procedures at issue are specific

methods used by FBI in national security investigations, not merely

common surveillance or credit searches generally. It is not enough for

26 Plaintiffs do not take issue with the other two types of law-

enforcement information withheld under Exemption 7(E): information

about the location and identity of particular FBI units involved in the

underlying national security investigations, and the dates and types of

investigations (whether preliminary or full investigations), as well as the

basis for initiating the investigations. ER 255-256, 636-638. 27 Plaintiffs assume that “elaborate surveillance of Muslims” and

“proxy detention” are among the procedures and techniques protected

from disclosure under Exemption 7(E). Pl. Br. 48-53. But that assumption

is neither warranted nor correct.


58

plaintiffs to contend that the general categories of surveillance and credit

searches may be “widely known to the public” or “common knowledge,”

Pl. Br. 47-48, where additional details about those techniques cannot be

described publicly. “[T]echniques and procedures may be exempt even if

they are known to the public to some extent if disclosure of the

circumstances of their use could lessen their effectiveness.” Hale v. DOJ,

973 F.2d 894, 902-903 (10th Cir. 1992), cert. granted, vacated & remanded

on other grounds, 509 U.S. 918 (1993); see also, e.g., Bowen v. FDA, 925 F.2d

1225, 1229 (9th Cir. 1991) (additional details of law-enforcement techniques

exempt from disclosure even where some information about techniques

previously disclosed). Thus, while it may be publicly known (for example)

that the FBI conducts various types of surveillance, operational details

about when, how, where, and under what circumstances the surveillance is

conducted are generally not public and, if disclosed, would undermine the

effectiveness of the technique.

Plaintiffs argue that the Court should presume that the techniques

and procedures at issue in one document – an FBI Electronic


59

Communication reporting milestones of operational travel, ER 25-29 – “are

illegal or of questionable legality.” Pl. Br. 49-50, 51 (quoting Wilkinson v.

FBI, 633 F. Supp. 336, 349 (C.D. Cal. 1986)). But there is no basis for that

assumption. It is not enough merely to assert (Pl. Br. 52) that an individual

was detained and tortured by a foreign government, where the United

States government had no role in any improper conduct. Plaintiffs’

unfounded and unexplained assumption of illegality is insufficient to

disregard the explanations in the record supporting the applicability of

Exemption 7(E). Cf. Favish, 541 U.S. at 175 (“Allegations of government

misconduct are easy to allege and hard to disprove”) (internal quotation

marks omitted).

Finally, plaintiffs argue that more detail is required to show that

disclosure of the law-enforcement techniques and procedures here would

risk circumvention of the law. See Pl. Br. 52-53. But there is no such

requirement under Exemption 7(E), which includes two separate

subsections: the first refers to law enforcement “techniques or procedures,”

and the second to “guidelines for law enforcement investigations or


60

prosecutions.” 5 U.S.C. § 552(b)(7)(E); see also Allard K. Lowenstein Intern.

Human Rights Project v. DHS, 626 F.3d 678, 681-682 (2d Cir. 2010). The

latter category (“guidelines for law enforcement investigations or

prosecutions”) may be withheld only if “disclosure could reasonably be

expected to risk circumvention of the law.” 5 U.S.C. § 552(b)(7)(E). No such

showing is required for the withholding of law enforcement “techniques or

procedures,” however, which receive categorical protection from

disclosure. See Smith v. ATF, 977 F. Supp. 496, 501 (D.D.C. 1997).

In any event, even if the risk-of-circumvention requirement were to

apply to the first clause of Exemption 7(E), Hardy explained why that risk

would flow from disclosure of the techniques and procedures at issue here.

ER 254-256, 258-259, 636-638. Contrary to plaintiffs’ argument (Pl. Br. 52-

53), there is no requirement that the government point to a specific statute

or otherwise lay out in detail particular scenarios demonstrating how

criminals might circumvent the law. Exemption 7(E) “is written in broad

and general terms.” Mayer Brown LLP v. IRS, 562 F.3d 1190, 1193 (D.C. Cir.

2009); see also id. at 1194 (“Rather than requiring a highly specific burden


61

of showing how the law will be circumvented, exemption 7(E) only

requires that the [government] demonstrate logically how the release of the

requested information might create a risk of circumvention of the law.”)

(quotation marks and brackets omitted); Blackwell v. FBI, 646 F.3d 37, 42

(D.C. Cir. 2011) (“Exemption 7(E) sets a relatively low bar for the agency to

justify withholding”). The Government thus need not show that

circumvention of the law as the result of the disclosure is certain or even

likely. Mayer Brown, 562 F.3d at 1193. Rather, information is exempt if

disclosure “could increase the risks that a law will be violated or that past

violators will escape legal consequences.” Ibid. Even the risk that such

information will “embolden[]” a person to attempt to break the law is

sufficient to justify withholding. Id. at 1194. Plaintiffs (Pl. Br. 52-53) cite

some cases that have included more detailed discussions of evasion in

different circumstances, but those cases do not hold that any such level of

detail is required to come within the first clause of Exemption 7(E).


62

III. THE DOCUMENTS PRODUCED TO PLAINTIFFS PROPERLY SEGREGATED

EXEMPT INFORMATION FROM RESPONSIVE RECORDS.

Finally, plaintiffs argue that the district court should have included in

its decision specific findings concerning the segregability of each document

containing full or partial withholdings. That argument should be rejected.

The record here demonstrates that the government segregated the exempt

information properly. The parties in this case briefed the issue of

segregability, see ER 231, 271, 274; Dkt# 29-1, at 17, 25-26, 45, 71; Dkt# 42-1,

at 22, and the record amply demonstrates that the government satisfied its

obligation to segregate all exempt information, and to produce all

reasonably segregable non-exempt information. See ER 175, 226, 586, 610,

613, 638; Dkt# 29-34, at 40; Dkt# 64-3, at 3, 5.

Segregability, like most other questions in a FOIA case, can and

should normally be resolved on the basis of declarations.28 See Pacific

28 Plaintiffs confuse the segregability issue by also urging in camera

review. See Pl. Br. 55 (“This Court must remand to require such findings,

and to review the relevant withheld documents in camera to ensure

disclosure of all non-exempt information.”). But it is well established that

in camera review should be undertaken only in the exceptional case, not as

a routine matter. See supra, 42-43.


63

Fisheries, Inc. v. United States, 539 F.3d 1143, 1148 (9th Cir. 2008) (“The

agency can meet its burden [of establishing that all reasonably segregable

portions of a document have been segregated and disclosed] by offering an

affidavit with reasonably detailed descriptions of the withheld portions of

the documents and alleging facts sufficient to establish an exemption.”).

Here, the government satisfied its segregability burden in the Vaughn

index, and the grant of summary judgment implicitly reflects the court’s

determination that the government had satisfied its obligations. The

district court was clearly aware of the segregability requirement. See ER 6

n.1 (noting segregability requirement does not apply to “documents * * *

withheld for attorney-client or work product privilege”) (citing Pacific

Fisheries, 539 F.3d at 1148). In these circumstances, the omission of a

specific reference to segregability in the district court decision does not

require reversal or remand.

In addition to the explanations in declarations in the Vaughn index

here (cited supra, 62), the government produced many pages in redacted

form, specifically identifying the exemptions relied on for each portion


64

redacted. Those redactions are carefully limited, confirming the careful

effort undertaken to release any reasonably segregable non-exempt

information. See, e.g., ER 75-86 (cited in Pl. Br. 55).29 Those careful

redactions confirm that the agencies properly withheld only the exempt

information, and produced all information that was reasonably segregable.

See, e.g., ER 212 (“There is no additional information not subject to a FOIA

exemption that may be segregated and released.”).

Thus, the record here was sufficient for the district court to conclude

that the government satisfied its segregability obligation. If there is any

question about the district court’s determination, there is no need for a

remand because this Court may assess that question independently based

on the existing record. See Juarez v. DOJ, 518 F.3d 54, 60 (D.C. Cir. 2008)

(concluding that, based on appellate court’s review of agency affidavits,

"no part of the requested documents was improperly withheld," and

finding no remand necessary).

29 The redaction of the classified, pre-decisional draft text at ER 76-80,

is amply explained in the record. See ER 211-212.


65

CONCLUSION

For the foregoing reasons, the judgment of the district court should

be affirmed.

Respectfully submitted,

STUART F. DELERY Assistant Attorney General

ANDRÉ BIROTTE, JR. United States Attorney

MATTHEW COLLETTE (202) 514-4214 /s/ H. Thomas Byron III

H. THOMAS BYRON III (202) 616-5367 Attorneys, Appellate Staff Civil Division, Room 7260 U.S. Department of Justice 950 Pennsylvania Ave., N.W. Washington, D.C. 20530

MARCH 2014


CERTIFICATE OF COMPLIANCE WITH

FEDERAL RULE OF APPELLATE PROCEDURE 32(a)

I hereby certify that this brief complies with the requirements of Fed.

R. App. P. 32(a)(5) and (6) because it has been prepared in 14-point Palatino

Linotype, a proportionally spaced font.

I further certify that this brief complies with the type-volume

limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 11,487 words,

excluding the parts of the brief exempted under Rule 32(a)(7)(B)(iii),

according to the count of Microsoft Word.

/s/ H. Thomas Byron III

H. THOMAS BYRON III


CERTIFICATE OF SERVICE

I hereby certify that on March 6, 2014, I electronically filed the

foregoing Brief For The Appellees by using the appellate CM/ECF system.

The participants in the case are registered CM/ECF users and service

will be accomplished by the appellate CM/ECF system.

/s/ H. Thomas Byron III

H. THOMAS BYRON III


STATEMENT OF RELATED CASES

Respondents are not aware of any cases in this Court that are related within

the meaning of this Court's Rule 28-2.6.
