United States Court of Appeals, District of Columbia Circuit
November 22, 2019
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
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.
WILLIAMS, SENIOR CIRCUIT JUDGE.
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."
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.
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.
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
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.
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."
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
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)