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Shapiro v. United States Department of Justice

United States Court of Appeals, District of Columbia Circuit

December 20, 2019

Ryan Noah Shapiro, Appellant
v.
United States Department of Justice, Appellee

          Argued November 22, 2019

          Appeal from the United States District Court for the District of Columbia (No. 1:16-cv-01399)

          Jeffrey Light argued the cause and filed the briefs for plaintiff-appellant.

          Brian J. Field, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Jessie K. Liu, U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.

          Before: Garland, Chief Judge, Griffith, Circuit Judge, and Williams, Senior Circuit Judge.

          OPINION

          WILLIAMS, SENIOR CIRCUIT JUDGE.

         In 1982 the Federal Bureau of Investigation's then-Director William Webster published an article broaching the subject of "mosaic theory" and describing a "test" the FBI conducted called "Operation Mosaic." Webster reviewed the way in which "seemingly innocuous information [released under the Freedom of Information Act] can be combined with records released at a different time or with the requester's personal knowledge," leading to revelations about sensitive FBI sources or investigations-just as the individual tiles in a mosaic may combine to reveal a complex meaning. Joint Appendix ("J.A.") 130-31. In support, the Director quoted one of our decisions, Halperin v. CIA, 629 F.2d 144, 150 (D.C. Cir. 1980), where we wrote: "[E]ach individual piece of intelligence information, much like a piece of jigsaw puzzle, may aid in piecing together other bits of information even when the individual piece is not of obvious importance in itself."

         Appellant Dr. Ryan Shapiro has sought to use FOIA, 5 U.S.C. § 552 et seq., to explore the FBI's thoughts about and possible uses of mosaic theory in its handling of FOIA cases. Dr. Shapiro filed a series of FOIA requests on the subject, asking among other things for files that responded to the search terms "Operation Mosaic" and "mosaic study" in various FBI databases. J.A. 147-48. And he asked for "all other records constituting or referring to Operation Mosaic." J.A. 148. Later, he filed a FOIA request for records relating to his FOIA requests.

         Unsatisfied with the agency's productions, Dr. Shapiro went to court, where he lost on summary judgment. In this appeal, he challenges the FBI's explanations that certain files were not responsive to his request or were destroyed.

         Because this case comes to us at summary judgement, we review the district court's determination de novo. See Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1111 (D.C. Cir. 2007). We must draw all reasonable inferences in Dr. Shapiro's favor and can rule for the FBI only if there is no material issue of fact in dispute. See Inst. for Justice v. IRS, 941 F.3d 567, 569 (D.C. Cir. 2019). As the FBI did not sufficiently explain its determinations, we reverse the district court's contrary ruling, vacate the decision in part and remand for further proceedings.

         We start with a set of issues arising out of the FBI's handling of a "search slip" that evidently served as an intermediate step in the Bureau's search for "mosaic study" in its Automated Case Support database ("ACS"). A "Universal Index" search in ACS yields information indexed in the automated databases that preceded ACS itself. Per the FBI's affiant, the indices cover "a variety of subject matters to include individuals, organizations, events, or other subjects of investigative interest." J.A. 37.

         The FBI provided the search slip in question, actually a spreadsheet, in response to Dr. Shapiro's FOIA request for information about his FOIA requests. According to the FBI's affiant, search slips keep track of the "preliminary results of the [agency's] search," and the FBI "routinely lists all potentially responsive files on a search slip for administrative tracking purposes."

         In this case, the search slip identified 28 files as "responsive" or "potential[ly]" responsive. J.A. 104-05. Evidently as a result of further examination, the FBI reclassified the files, informing Dr. Shapiro that no records met his request. In response to Dr. Shapiro's complaint that the FBI had withheld files indicated on the search slip as responsive, the FBI supplied an affidavit explaining that on review the files were found "either non-responsive because the files did not relate to the specifics of [Dr. Shapiro's] request or were legally destroyed." J.A. 181-82. As to 16 numbered files, the affidavit specified which-whether they were non-responsive or destroyed. As to certain files, whose numbers had been redacted, the FBI response didn't even disclose which of those two categories the FBI believed applicable.

         (We pause to note that the FBI may not have needed to release its search slip to Dr. Shapiro in the first place. FOIA's exemption 5 permits agencies to withhold "pre-decisional and deliberative" materials. Nat'l Sec. Archive v. CIA, 752 F.3d 460, 463 (D.C. Cir. 2014). Exemption 5 might have applied to the search slip in this case. See Assassination Archives & Research Ctr. v. CIA, 781 F. Appx 11, 13 (D.C. Cir. 2019) (per curiam) ...


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