Truthout v. Department of Justice

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TRUTHOUT,
Plaintiff-Appellant,
v.
DEPARTMENT OF JUSTICE,
Defendant-Appellee.
No. 14-16288
D.C. No.
2:12-cv-02601-LKK-CKD
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Lawrence K. Karlton, District Judge, Presiding
Submitted July 8, 2016**
San Francisco, California
Before: SILVERMAN, and NGUYEN, Circuit Judges, and ANELLO,*** District
Judge.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Michael M. Anello, United States District Judge for
the Southern District of California, sitting by designation.
FILED
JUL 13 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Truthout appeals the denial of its request for records under the Freedom of
Information Act (FOIA) related to the FBI’s practice of verifying FOIA privacy
waivers. The Department of Justice (DOJ) moved for summary judgment,
arguing that the requested documents were exempt from disclosure under FOIA
Exemption 7E, which applies to “records or information compiled for law
enforcement purposes” where disclosure would reveal “techniques and procedures
for law enforcement investigations or prosecutions.” 5 U.S.C. § 552(b)(7)(E). In
support of its motion, the DOJ submitted the declaration of David Hardy (“Hardy
Declaration”), a Section Chief for the Records Management Division of the FBI.
The full declaration was submitted to the court in camera, while a heavily redacted
version was filed on the public docket. Truthout moved to strike the Hardy
Declaration or, alternatively, file it on the public docket. The district court denied
the motion to strike and granted summary judgment in favor of the DOJ,
determining that it was unnecessary for Truthout to file an opposition. Truthout
objects to the court’s reliance on the in camera declaration, to the summary
judgment ruling, and to the denial of their ability to file a response.
We agree with the district court that the redacted Hardy Declaration
“submitted as much detail in the form of public affidavits and testimony as

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possible,” and that a further explanation would in effect force “the agency to reveal
the information contained in the withheld documents.” This is a rare occasion
where disclosure of further facts “would undermine the very purpose of [the
government’s] withholding.” Lion Raisins, Inc. v. Dep’t of Agric., 354 F.3d 1072,
1082 (9th Cir. 2004). Thus, the government “has submitted as detailed public
affidavits and testimony as possible.” Doyle v. F.B.I., 722 F.2d 554, 556 (9th Cir.
1983).
The Hardy Declaration provided the district court with an adequate factual
basis on which to make a decision regarding summary judgment. Id. at 555.
Further, on de novo review, we agree with the district court’s legal conclusion that
there is no genuine issue of material fact as to whether the withheld documents met
the criteria outlined in FOIA Exemption 7E. Lion Raisins, 354 F.3d at 1078.
Finally, while we agree that the district court erred by ruling on the
government’s summary judgment motion without allowing Truthout to file an
opposition, see S. California Edison Co. v. Lynch, 307 F.3d 794, 807 (9th Cir.),
modified, 307 F.3d 943 (9th Cir. 2002), any error was harmless. Truthout was
afforded an opportunity to move to strike the Hardy Declaration, and has not on
appeal pointed to any arguments or evidence that it could put forth in addition to
what it has already argued.
AFFIRMED.

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