Joel A. Brodsky v. Federal Bureau of Investigation

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted July 17, 2025*
Decided July 17, 2025
Before
THOMAS L. KIRSCH II, Circuit Judge
JOHN Z. LEE, Circuit Judge
DORIS L. PRYOR, Circuit Judge
No. 24-2619
JOEL A. BRODSKY,
Plaintiff-Appellant,
v.
FEDERAL BUREAU OF
INVESTIGATION,
Defendant-Appellee.
Appeal from the United States District
Court for the Northern District of
Illinois, Eastern Division.
No. 1:22-cv-06462
Sharon Johnson Coleman,
Judge.
O R D E R
Joel Brodsky, a former lawyer, appeals the grant of summary judgment rejecting
his effort to obtain documents withheld or redacted by the FBI under the Freedom of
Information Act’s (FOIA) exemptions. See 5 U.S.C. § 522. We affirm.
* We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. F ED. R. A PP . P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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In October 2020, Brodsky submitted a FOIA request to the FBI seeking all records
concerning his work as a confidential informant from January 1, 2000, to October 11,
2020. He stated that he was an informant for two investigations: one into corruption in
the Domestic Relations Division of the Circuit Court of Cook County, Illinois and the
second into the murder of a member of an organized crime outfit in Chicago, Illinois. In
emails to the FBI, he stated that he needed confirmation that he was a confidential
informant for two unrelated cases.
The FBI eventually identified a total of 564 pages of responsive records, releasing
to Brodsky 14 pages in full, 84 pages in part, and withholding 466 pages in full.
See id. § 522(b)(3)–(7). In November 2022, Brodsky sued the FBI for wrongfully
withholding the responsive records.
The FBI moved for summary judgment and explained that it withheld or
redacted the documents because one or more FOIA exemptions applied, and it could
not segregate or disclose the documents without risking foreseeable harm. The FBI
supported its motion for summary judgment with a declaration from Michael Seidel,
the Section Chief of the FBI’s Record/Information Dissemination Section, explaining the
foreseeable harm that disclosure of each category of exempted information would risk.
The FBI also filed a Vaughn index describing the withheld documents cross-referenced
with the relevant exemptions. See Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973). The FBI
gave Brodsky a redacted Vaughn index and filed a Glomar response,1 declining to
confirm or deny the existence of some responsive records because the acknowledgment
of their existence or non-existence could jeopardize the interests the FOIA exemptions
are intended to protect.
Brodsky filed a cross-motion for summary judgment, objected to the Vaughn
index, and moved for an in camera inspection of the redacted documents. But after
reviewing the unredacted documents, Vaughn index, Glomar response, and declaration,
the court entered summary judgment for the FBI because it had properly withheld the
records under the relevant exemptions. In effect, the district court adopted the FBI’s
asserted legal bases for the withholdings and redactions in the Vaughn index as its own
rationale. Brodsky now appeals.
1 The term “Glomar” derives from the D.C. Circuit’s decision in Phillippi v. CIA,
546 F.2d 1009, 1011 (D.C. Cir. 1976), where the court upheld the CIA’s refusal to confirm
or deny its ties to Howard Hughes’ submarine retrieval ship, the Glomar Explorer.

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We have an unusual standard of review in FOIA cases: We first review de novo
whether the court had an adequate factual basis to make a legally sound decision, and
then review for clear error the court’s conclusions that the documents were properly
withheld or redacted under the exemptions. Libarov v. ICE, 138 F.4th 1010, 1018 (7th Cir.
2025). Brodsky first argues that we should overturn our precedent and instead review
de novo the district court’s conclusions that the FBI properly withheld the documents.2
Because we have recently reaffirmed our standard of review in FOIA cases, we decline
to adopt a new standard of review. See id. As to the first prong of the FOIA standard,
the district court had an adequate factual basis to make a legally sound decision
because the court reviewed Seidel’s declaration, the Vaughn index, and conducted an in
camera review of all of the unredacted documents. Id. at 1019; see also Vidal-Martinez v.
U.S. Dep’t of Homeland Sec., 84 F.4th 743, 748 (7th Cir. 2023) (noting in camera review of
all challenged documents is “more than an adequate factual basis”).
With respect to the second prong of the FOIA standard, Brodsky makes two legal
challenges before addressing the propriety of the withholdings under specific
exemptions. First, he claims that the court erred when it allowed him to view only a
redacted version of the Vaughn index because the FBI merely speculated that he would
be able to deduce the identities of people named in the documents. We disagree. The
FBI may submit a redacted Vaughn index when it fears that inferences from the Vaughn
index could reveal classified sources or methods of obtaining intelligence. See Bassiouni
v. CIA, 392 F.3d 244, 246–47 (7th Cir. 2004). And the court did not clearly err when it
determined that revealing the existence of certain documents could jeopardize classified
sources and intelligence methods. See id.
Brodsky also contends that the court should not have allowed the FBI to submit a
Glomar response because it is only appropriate in cases involving national security.
Brodsky cites no authority for this proposition and merely asserts that there has never
been a non-national security case where a Glomar response was submitted. He is
2 Brodsky contends that because Loper Bright Enters. v. Raimondo, 603 U.S. 369
(2024), eliminated the Chevron doctrine, our bifurcated standard of review affords too
much deference to the FBI’s declarations. But Loper Bright concerned the deference to
agency interpretations of law under the Administrative Procedure Act. See 5 U.S.C.
§ 701 et seq. It has no applicability to the weight accorded to declarations made by
agency officials in a FOIA case—a fact question—particularly here, where Brodsky has
adduced no countervailing facts.

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incorrect. See, e.g., Donato v. Exec. Off. for U.S. Att’ys, 308 F.Supp.3d 294, 310 (D.D.C.
2018).
With respect to the specific exemptions, Brodsky maintains that nearly every
assertion of an exemption could have been applied more narrowly by redacting specific
pieces of information (names, phone numbers, addresses, etc.) and disclosing the
remainder of the documents. By making this argument, Brodsky concedes that the FBI
had reasonable grounds to withhold at least portions of the documents. The question,
then, is whether the district court clearly erred when it concluded that the FBI properly
withheld the remainder of those documents because they contained information—
beyond easily redactable data—that could be used to deduce facts that would invade
privacy interests, see § 522(b)(6), (b)(7)(C), interfere with enforcement proceedings,
see § 522(b)(7)(A), identify confidential sources, see § 522(b)(7)(D), or risk circumvention
of the law, see § 522(b)(7)(E).
As an initial matter, we note that “federal courts have credited the mosaic
concept in the Freedom of Information Act (FOIA) context,” Doe v. Gonzales, 546 U.S.
1301, 1305 (2005) (Ginsburg, J., in chambers), under which “‘bits and pieces of data may
aid in piecing together bits of other information even when the individual piece is not of
obvious importance itself,’” Connell v. CIA, 110 F.4th 256, 269 (D.C. Cir. 2024) (quoting
CIA v. Sims, 471 U.S. 159, 178 (1985)). As noted above, we review the applicability of an
exemption only for clear error. Libarov, 138 F.4th at 1018. Under this standard, the
district court’s conclusions need only be “plausible in light of the entire record” and
“[w]here there are two permissible views of the evidence, the factfinder’s choice
between them cannot be clearly erroneous.” Anderson v. City of Bessemer City, 470 U.S.
564, 573–74 (1985). Brodsky’s suggestion that the redactions could have been more
surgical does not establish clear error in the district court’s application of the
exemptions, particularly in light of the possibility that disclosure would risk
unauthorized persons to deduce protected information by compilation.
Moving next to exemption (b)(3)3, Brodsky argues that the FBI improperly
withheld documents under the National Security Act, 50 U.S.C. § 3024(i)(1), because
only the intelligence element of the FBI is a statutory member of the Intelligence
3 Exemption (b)(3) applies to information “specifically exempted from disclosure
by statute” if that 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.” § 522(b)(3).

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Community, and the records at issue pertained to the FBI’s law enforcement function,
not its intelligence function. We disagree. An agency may withhold information
pursuant to exemption (b)(3) by establishing the existence of a statute that meets the
requirements of exemption (b)(3) and the inclusion of the withheld material within that
statute’s coverage. Baldridge v. Shapiro, 455 U.S. 345, 352–53 (1982); Morley v. CIA,
508 F.3d 1108, 1126 (D.C. Cir. 2007). The Supreme Court has held that the National
Security Act is a qualifying withholding statute for purposes of exemption (b)(3). CIA v.
Sims, 471 U.S. 159, 167 (1985)4; see also ACLU v. Dep’t of Def., 628 F.3d 612, 619 (D.C. Cir.
2011). Seidel’s declaration informed the court that the documents at issue contained
sensitive information pertaining to intelligence sources and methods protected by the
National Security Act. The FBI was thus statutorily required to prevent the
unauthorized disclosure of those intelligence sources and methods. See Connell,
110 F.4th at 268–69 (discussing § 3024(i)(1)). Regardless, the FBI also withheld the
documents under exemption (b)(7)(E)5 because the intelligence sources and methods
were employed as law enforcement techniques and procedures. The court did not
clearly err because the FBI established a risk that investigation subjects could
circumvent the law if the documents were disclosed. See Fogg v. IRS, 106 F.4th 779, 788
(8th Cir. 2024).
Brodsky argues that the FBI’s investigative techniques and procedures are
publicly known through its webpage that publishes indictments, and therefore there is
no risk of circumvention of law. But simply pointing to an unrelated webpage does not
suffice to show that the techniques and procedures contained in the withheld
documents are publicly known. Cf. Kowal v. DOJ, 107 F.4th 1018, 1033 (D.C. Cir. 2024)
(rejecting plaintiff’s contention that the withheld information was publicly available
4 Sims addressed section 102(d)(3) of the National Security Act of 1947, Pub. L.
No. 80-253, 61 Stat. 495, 498 (July 26, 1947), previously codified at 50 U.S.C. § 403(d)(3).
The relevant language was transferred and renumbered as 50 U.S.C. § 3024(i), following
the establishment of the Office of the Director of National Intelligence. The statutory
requirement to protect intelligence sources and methods from disclosure remains
unaltered. See Berman v. CIA, 501 F.3d 1136, 1140 n.1 (9th Cir. 2007).
5 Exemption (b)(7)(E) protects from disclosure “records or information compiled
for law enforcement purposes, but only to the extent that the production of such law
enforcement records or information … would disclose techniques and procedures for
law enforcement investigations or prosecutions … if such disclosure could reasonably
be expected to risk circumvention of the law.” § 522(b)(7)(E).

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through an outdated DEA manual); see also Broward Bulldog, Inc. v. DOJ, 939 F.3d 1164,
1191–92 (11th Cir. 2019).
Brodsky also maintains that the documents he requested are 20 years old and the
passage of time eliminated any risk of circumvention of the law. But the passage of
time, without more, cannot overcome Seidel’s declaration that disclosure would risk
circumvention of the law. Cf. Brant Const. Co., Inc. v. EPA, 778 F.2d 1258, 1265 n.8
(7th Cir. 1985) (holding that the passage of time was insufficient to obtain disclosure of
documents exempted under 7(D)); Campbell v. DOJ, 164 F.3d 20, 32 (D.C. Cir. 1998).
With respect to exemptions (b)(6) and (b)(7)(C),6 Brodsky argues that the public
interest outweighs the privacy interests asserted by the FBI. See Higgs v. U.S. Park Police,
933 F.3d 897, 904 (7th Cir. 2019). We disagree. Brodsky suspects that there are people
attempting to injure him in retaliation for his cooperation with the FBI and the public
has an interest “in knowing if the FBI disclosed the identity of a cooperating witness to
persons who then maliciously injured that witness.” To prevail on this point, Brodsky
must point to evidence that would “warrant a belief by a reasonable person that the
alleged Government impropriety might have occurred.” Id. at 904 (citing Nat’l Archives
and Records Admin. v. Favish, 541 U.S. 157, 174 (2004)). But his “bare suspicion” that he is
being targeted because of the FBI’s impropriety is insufficient to establish that the
district court clearly erred in its assessment of the FBI’s withholdings. Favish, 541 U.S. at
174. And his contention that the public shares his interest in identifying people who are
trying to injure him does not outweigh the FBI’s asserted privacy interests. See Higgs,
933 F.3d at 905.
Regarding exemption (b)(5),7 Brodsky argues that the FBI improperly withheld
handwritten interview and investigation notes because the notes were not part of a
deliberative process and were not taken when an Assistant United States Attorney
6 Exemption (b)(6) protects “personnel and medical files and similar files the
disclosure of which would constitute a clearly unwarranted invasion of personal
privacy.” § 522(b)(6). Exemption (b)(7)(C) protects “records or information compiled for
law enforcement purposes, but only to the extent that the production of such law
enforcement records or information … could reasonably be expected to constitute an
unwarranted invasion of personal privacy.” § 522(b)(7)(C).
7 Exemption (b)(5) protects from disclosure “inter-agency or intra-agency
memorandums or letters that would not be available by law to a party other than an
agency in litigation with the agency.” § 522(b)(5).

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(AUSA) was present. We need not address either of Brodsky’s contentions, because the
notes were also properly withheld under exemptions (b)(6), (b)(7)(C), and (b)(7)(E).
Regarding exemption (b)(7)(D),8 Brodsky argues that there was no adversary
process to ensure that the FBI met its burden to show that the withheld documents were
confidential. But he was not entitled to participate in the in camera inspection of the
documents because that would compromise the confidentiality of the information that
was in dispute. See Solar Sources, Inc. v. United States, 142 F.3d 1033, 1040 (7th Cir. 1998)
(citation omitted). And the FBI met its burden because it provided the court with
specific information in the Seidel declaration explaining that the sources were
confidential. See Kowal, 107 F.4th at 1032. Brodsky has not shown that the Seidel
declaration was made in bad faith. See In re Wade, 969 F.2d 241, 246 (7th Cir. 1992). The
court did not clearly err in its finding regarding the applicability of exemption (b)(7)(D).
Brodsky also maintains that the court did not conduct a sufficient inquiry into
the age of the information, whether the sources were deceased, the reasonableness of
any fear of adverse action, and whether redaction could disclose sources’ identities. But
the court did not clearly err because it conducted a sufficiently “granular inquiry” when
it reviewed the documents in camera and relied on the Seidel declaration to conclude
that exemption (b)(7)(D) applied. Higgs, 933 F.3d at 905–06.
Lastly, Brodsky contends that the court clearly erred because the FBI did not
identify the particular proceedings that would be interfered with by disclosure of
documents exempted under (b)(7)(A).9 But because Seidel’s declaration informed the
court that the documents contained information relevant to ongoing and prospective
investigations, the court did not clearly err when it concluded that disclosure would
interfere with those investigations. See Libarov, 138 F.4th at 1019.
8 Exemption (b)(7)(D) protects from disclosure “records or information compiled
for law enforcement purposes, but only to the extent that the production of such law
enforcement records or information … could reasonably be expected to disclose the
identity of a confidential source [who] furnished information on a confidential basis”
§ 522(b)(7)(D).
9 Exemption (b)(7)(A) protects from disclosure “records or information compiled
for law enforcement purposes, but only to the extent that the production of such law
enforcement records or information … could reasonably be expected to interfere with
enforcement proceedings.” § 522(b)(7)(A).

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We have considered Brodsky’s other arguments, and none merits discussion.
AFFIRMED

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