Islamic Chura Council, et al v. FBI, et al

Filing

FILED OPINION (MARY M. SCHROEDER, RICHARD C. TALLMAN and MILAN D. SMITH, JR.) VACATED; REMANDED. Judge: MMS Authoring, Judge: RCT , Judge: MDS . FILED AND ENTERED JUDGMENT. [7699245]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ISLAMIC SHURA COUNCIL OF
SOUTHERN CALIFORNIA; COUNCIL ON
AMERICAN ISLAMIC RELATIONSCALIFORNIA; ISLAMIC CENTER OF SAN
GABRIEL VALLEY; ISLAMIC
CENTER OF HAWTHORNE; WEST
COAST ISLAMIC CENTER; HUMAN
ASSISTANCE AND DEVELOPMENT
INTERNATIONAL, INC.; MUZAMMIL
SIDDIQI; SHAKEEL SYED; HUSSAM
AYLOUSH; MOHAMMED ABDUL
ALEEM; RAFE HUSAIN,
Plaintiffs-Appellees,
v.
FEDERAL BUREAU OF INVESTIGATION;
UNITED STATES DEPARTMENT OF
JUSTICE,
Defendants-Appellants.





No. 09-56035
D.C. No.
8:07-cv-01088-CJCAN
OPINION



Appeal from the United States District Court
for the Central District of California
Cormac J. Carney, District Judge, Presiding
Argued and Submitted
November 1, 2010—Pasadena, California
Filed March 30, 2011
Before: Mary M. Schroeder, Richard C. Tallman and
Milan D. Smith, Jr., Circuit Judges.
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Opinion by Judge Schroeder

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COUNSEL
Ahilan T. Arulanantham, Los Angeles, California, for
plaintiffs-appellees Islamic Shura Council of Southern California, et al.
Beth S. Brinkman, Washington, DC, for defendantsappellants Federal Bureau of Investigation, et al.

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OPINION
SCHROEDER, Circuit Judge:
In this Freedom of Information Act (“FOIA”) case, the
government brings an interlocutory appeal challenging the
district court’s sealed, ex parte order (“Sealed Order”) containing the district court’s decision to make all of its contents
public. The government contends that the Sealed Order contains some sensitive national security and law enforcement
information. The district court was justifiably annoyed with
the government’s withholding of documents from the plaintiffs and the court. The withholding misled the court into
believing the government had complied with all its statutory
obligations under the FOIA. It was not until the court convened ex parte, in camera proceedings that it learned of the
existence of additional documents which were responsive to
the plaintiffs’ FOIA requests. We do not necessarily endorse
the government’s conduct during the litigation, but we agree
with the government that the Sealed Order contains information that should not become public. We therefore vacate the
Sealed Order and remand for its revision in further proceedings.
I.

Background

On May 15, 2006, plaintiffs, five citizens and six organizations in Southern California, submitted a joint request to the
FBI under the FOIA, 5 U.S.C. § 552, seeking information
reflecting any investigation or surveillance of them by the
government. Plaintiffs are Islamic Shura Council of Southern
California, Council on American Islamic Relations-California
(“CAIR”), Islamic Center of San Gabriel Valley, Islamic Center of Hawthorne, West Coast Islamic Center, Human Assistance and Development International, Inc., Dr. Muzammil
Siddiqi, Shakeel Syed, Hussam Ayloush, Mohammed Abdul
Aleem, and Rafe Husain.

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On April 27, 2007, the FBI notified nine of the eleven
plaintiffs that its search of its Central Records System did not
locate documents responsive to their requests. On June 13,
2007, the FBI released three pages of documents to Mr.
Ayloush, in response to his request. On June 14, 2007, the
FBI released a one-page document to CAIR. The FBI
redacted large portions of those four pages pursuant to FOIA
exemptions, 5 U.S.C. § 552(b)(2),1 (b)(6),2 and (b)(7)(C).3
On September 18, 2007, plaintiffs filed their Complaint in
the district court, challenging the adequacy of the FBI’s
search. After the lawsuit was filed, the FBI conducted additional searches for nine of the eleven plaintiffs and produced
over one hundred pages of documents. The government
redacted some of the information in these documents pursuant
to specific exemptions under 5 U.S.C. § 552(b). The government also heavily redacted many documents as “outside the
scope” of plaintiffs’ FOIA request.
On March 21, 2008, the government filed a motion for
summary judgment, stating that its invocation of the FOIA
exemptions was necessary and proper. On November 26,
2008, plaintiffs filed a cross-motion for summary judgment,
requesting the district court to order the government to disclose the documents redacted as “outside the scope,” or, in the
alternative, requesting the district court to review those docu1

5 U.S.C. § 552(b)(2) permits an agency to withhold documents when
they are “related solely to the internal personnel rules and practices of an
agency.”
2
5 U.S.C. § 552(b)(6) permits an agency to withhold documents when
they are “personnel and medical files and similar files the disclosure of
which would constitute a clearly unwarranted invasion of personal privacy.”
3
5 U.S.C. § 552(b)(7)(C) permits an agency to withhold documents
when they are “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.”

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ments in camera to determine if the documents were properly
characterized as “outside the scope” of the FOIA request.
On April 20, 2009, the district court held a hearing on the
parties’ cross-motions for summary judgment and issued an
order stating that “an in camera review . . . is necessary to
determine the propriety of the FBI’s ‘outside the scope’
redactions. The FBI is ordered to provide any documents
redacted or withheld as ‘outside the scope’ to the Court for an
in camera review.”
Following the April 20 hearing, the government provided
the district court with unaltered versions of the documents it
had previously disclosed and an additional declaration from
David M. Hardy, Section Chief of the Record/Information
Dissemination Section, Records Management Division of the
FBI, to support the government’s redactions. The Hardy declaration acknowledged, for the first time, that the government
had identified other responsive documents, but had not disclosed their existence to the court or plaintiffs. This was the
first time the district court was aware that the government had
located additional documents.
After two ex parte, in camera proceedings, the district
court issued its decision on June 23, 2009 in a sealed, ex parte
order. In that decision, the district court noted that the government previously misled the court by representing that it had
disclosed all responsive documents, when the in camera proceedings revealed additional documents that had not earlier
been made known to the court. The district court emphasized
that the FOIA does not permit the government to mislead the
court, as judicial review of an agency’s decision to withhold
information would be meaningless if based on misinformation.
The court determined, on the basis of its in camera review,
that the government properly withheld most of the documents
from plaintiffs. The court, however, determined that in repre-

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senting to both plaintiffs and the court that many of the documents plaintiffs sought did not exist, the government had
misled the court. Believing it needed to correct the public
record, the district court announced in the Sealed Order that
it would unseal it on July 7, 2009 unless otherwise directed
by this Court.
The government immediately appealed the district court’s
Sealed Order and filed an emergency ex parte motion for a
stay of the district court’s decision to unseal its order pending
appeal. A motions panel of this Court granted an administrative stay on July 6, 2009 to allow a merits panel sufficient
time to review the government’s appeal. The FOIA case
remains pending in the district court, and we review only the
district court’s decision to unseal its Sealed Order. The government has filed both a sealed ex parte brief and a heavily
redacted public version. This court has had access to all relevant documents.
II.

Jurisdiction

The parties in their public briefs have addressed jurisdictional issues. The government appeals under the collateral
order doctrine, or in the alternative, seeks mandamus relief.
Plaintiffs respond that they lack sufficient information to take
a position with respect to this court’s jurisdiction over the
government’s appeal. We hold that this Court has jurisdiction
to review the government’s appeal under a writ of mandamus
pursuant to the All Writs Act, 28 U.S.C. § 1651.
A.

Collateral Order Doctrine

The collateral order doctrine grants federal appellate jurisdiction to review a “ ‘small class’ of collateral rulings that,
although they do not end the litigation, are appropriately
deemed ‘final.’ ” Mohawk Indus., Inc. v. Carpenter, 130 S.
Ct. 599, 605 (2009) (citing Cohen v. Beneficial Indus. Loan
Corp, 337 U.S. 541, 545-46 (1949)). “We must be cautious in

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applying this doctrine, because once one order is identified as
collateral, all orders of that type must be considered collaterally.” See C.I.R. v. JT USA, LP, 630 F.3d 1167, 1172 (9th Cir.
2011). A collateral decision may be treated as final if it: (1)
conclusively determines the disputed question, (2) resolves an
important issue completely separate from the merits of the
action, and (3) is effectively unreviewable on appeal from a
final judgment. In Re Copley Press, Inc., 518 F.3d 1022, 1025
(9th Cir. 2008).
The first and third prongs are easily satisfied here. The district court’s decision to unseal an order conclusively determines the disputed question of whether to make the order a
matter of public record. See Copley Press, 518 F.3d at 1025
(“Secrecy is a one-way street . . . [and] . . . [a]n order to
unseal . . . ‘conclusively determine[s]’ that the information
will be public.” (citation omitted) (alterations in original)). In
tandem with the first prong, the issue would not be reviewable
on appeal because once the order is unsealed, any government
appeal of the issue after judgment would be moot. When an
order is unsealed, the unsealing cannot be reversed. See id. at
1025 (“Once information is published, it cannot be made
secret again.”).
It is the second prong that gives us pause. The merits of the
underlying action concern whether the government has complied with its disclosure obligations under the FOIA. The
issue on this appeal is whether the district court’s Sealed
Order should be unsealed and hence disclosed. Resolving this
issue would require us to determine whether the information
in the Sealed Order should be withheld under the FOIA.
Therefore, it is at least arguable that a collateral decision on
this issue may not be “completely separate” from the merits
of the underlying FOIA action. We need not decide the issue,
however, because this case is otherwise appropriate for mandamus relief. We therefore assume, without deciding, that the
unsealing issue is not completely separate and thus not
appealable as a collateral order.

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B.

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Writ of Mandamus

A writ of mandamus is a remedy to be invoked in extraordinary circumstances. Kerr v. U.S. Dist. Court, 426 U.S. 394,
402 (1976). To determine if mandamus relief is warranted, we
apply the familiar five-factor Bauman guidelines, asking
whether: (1) the petitioner has no other adequate means to
attain the relief it desires; (2) the petitioner will be damaged
in a way that is not correctable on appeal; (3) the district
court’s order is clearly erroneous as a matter of law; (4) the
error is oft-repeated, or manifests a persistent disregard of the
federal rules; and (5) the district court’s order raises new and
important problems, or issues of law of first impression. Plata
v. Schwarzenegger, 560 F.3d 976, 983 (9th Cir. 2009) (citing
Bauman v. U.S. Dist. Court, 557 F.2d 650, 654-55 (9th Cir.
1977)). A petitioner need not establish all five factors. United
States v. Fei Ye, 436 F.3d 1117, 1122 (9th Cir. 2006), but
must establish the third, that the district court’s order is
clearly erroneous. See Perry v. Schwarzenegger, 591 F.3d
1147, 1156 (9th Cir. 2010) (“[T]he absence of the third factor,
clear error, is dispositive.” (quoting Burlington N. & Santa Fe
Ry. Co. v. U.S. Dist. Court, 408 F.3d 1142, 1146 (9th Cir.
2005))).
The first Bauman factor is satisfied here because there is no
other remedy available. The Sealed Order is interlocutory and
non-appealable under 28 U.S.C. §§ 1291, 1292(a)(1), and
1292(b). The second and fifth Bauman factors also support
mandamus. Unsealing the district court’s Sealed Order will
make the information permanently public in a way that is not
correctable on later appeal. The government’s appeal also
raises new and important problems relating to a sanction in a
FOIA case. Because this is an issue of first impression for our
court and the district court’s error is not often raised or
repeated, the fourth Bauman factor is absent. See Admiral Ins.
Co. v. U.S. Dist. Court, 881 F.2d 1486, 1491 (9th Cir. 1989)
(“The fourth and fifth Bauman factors are rarely, if ever, present at the same time.”).

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The dispositive issue is therefore whether the district
court’s decision to unseal its Sealed Order is clearly erroneous
as a matter of law, thereby satisfying the critical third Bauman
factor. For the reasons discussed in the next section, we conclude that it is.
III.

Discussion

[1] The government seeks mandamus relief because it contends that the Sealed Order itself contains sensitive law
enforcement and national security information that the government may properly withhold under the FOIA. The FOIA
recognizes certain categories of documents that the government may withhold from plaintiffs in a FOIA action, but the
FOIA does not permit the government to withhold responsive
information from the court. The FOIA exceptions are to be
narrowly construed and the burden is on the agency to justify
its action. Lahr v. Nat’l Transp. Safety Bd., 569 F.3d 964, 973
(9th Cir. 2009) (citing Assembly of Cal. v. U.S. Dep’t of Commerce, 968 F.2d 916, 920 (9th Cir. 1992)). To ensure the
breadth of disclosure, the FOIA expressly authorizes district
courts to examine documents in camera to review the propriety of an agency’s withholdings. See Arieff v. U.S. Dep’t of
Navy, 712 F.2d 1462, 1469 (D.C. Cir. 1983). District courts
have jurisdiction “to enjoin the agency from withholding
agency records and to order the production of any agency
records improperly withheld.” 5 U.S.C. § 552(a)(4)(B).
[2] In a seminal case concerning FOIA procedure, the D.C.
Circuit in Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973),
recognized that in FOIA cases, plaintiffs seeking disclosure of
records are at a disadvantage, because they are in the dark
about the nature of the documents they are seeking. They are
unable to “argue with desirable legal precision for the revelation of the concealed information.” Id. at 823. Only the party
opposing disclosure, i.e. the government, is in a position to
make statements categorizing the information. Id. To compensate for this imbalance of knowledge as between the plaintiffs

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and the government, the trial court may examine the documents in camera to determine whether the government has
properly withheld responsive documents. See id. at 825.
When the government does not provide the court with accurate or complete information, the court’s function in overseeing FOIA actions and monitoring litigation is compromised.
The government may withhold relevant information from
plaintiffs to protect “the secret nature of the information,” id.
at 826, but it must disclose to the court all relevant and
responsive information in order for the court to evaluate
whether the withholding was appropriate.
[3] An agency is required, “by means of detailed affidavits
or oral testimony, to establish to the satisfaction of the District
Court that the documents sought fall clearly beyond the range
of material that would be available to a private party in litigation with the agency.” Envtl. Protection Agency v. Mink, 410
U.S. 73, 93 (1973), superseded on other grounds by statute as
recognized in Phillippi v. CIA, 546 F.2d 1009, 1012 n.4 (D.C.
Cir. 1976); see also Vaughn, 484 F.2d at 827 n.20 (citing
Mink to support its conclusion that the government is required
to provide detailed statements to justify their exemptions). We
have also noted that the government’s affidavits should “contain reasonably detailed descriptions of the documents and
allege facts sufficient to establish an exemption,” so that the
district court can make an “independent assessment of the
government’s claim.” Lane v. Dep’t of Interior, 523 F.3d
1128, 1135-36 (9th Cir. 2008). If the affidavits are too vague,
the court “may examine the disputed documents in camera to
make a ‘first hand determination of their exempt status.’ ” Id.
at 36. Therefore, if the government believes that submitting a
detailed affidavit would compromise the information it is
seeking to protect, then it must seek an in camera review. It
cannot, however, represent to the district court that it has produced all responsive documents when in fact it has not.
[4] We thus agree with the district court that the FOIA
does not permit the government to withhold information from

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the court. Indeed, engaging in such omissions is antithetical
to FOIA’s structure which presumes district court oversight.
See 5 U.S.C. § 552(a)(4)(B). That said, poor litigation strategy
by the government is not an independent basis to make public
information which, based upon our review of the record,
should be kept within the privacy of the agencies that oversee
it. Because the Sealed Order makes reference to such information, it also should not be publicly disclosed.
A.

Due Process

Neither plaintiffs nor their counsel have had access either
to the in camera, ex parte proceedings or to the district court’s
Sealed Order that remains under seal and is the subject of this
mandamus proceeding. Plaintiffs argue that due process does
not authorize keeping the contents of the Sealed Order under
seal because the information in the Sealed Order is not classified. Plaintiffs contend that the government therefore can
have no strong national security concerns. They alternatively
contend that due process requires disclosure to plaintiffs’
counsel, under a protective order, of the Sealed Order.
Plaintiffs cite several cases to support their position that
due process requires the disclosure of all unclassified materials, despite the government’s contention that they contain
national security information. See United States v. Abuhamra,
389 F.3d 309 (2d Cir. 2004); Parhat v. Gates, 532 F.3d 834
(D.C. Cir. 2008); People’s Mojahedin Org. of Iran v. Dep’t
of State, 327 F.3d 1238 (D.C. Cir. 2003). Plaintiffs’ reliance
on these cases is misplaced, however, because none stand for
the sweeping proposition that nonclassified material must be
disclosed. Moreover, none were FOIA cases. Abuhamra was
a criminal case holding that bail cannot be denied on the basis
of information kept secret from the defendant. Parhat, a
habeas case, held that the government could not rely on the
same generic explanation for withholding information in hundreds of detainee cases, and People’s Mojahedin Org. of Iran
involved a disputed designation as a foreign terrorist organi-

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zation under the Anti-Terrorism and Effective Death Penalty
Act, 8 U.S.C. § 1189.
[5] Indeed, the FOIA itself permits the government to
withhold from plaintiffs many types of documents that are not
classified. The FOIA provides that every federal agency shall
make available upon request records reasonably described, 5
U.S.C. § 552(a)(3)(A), unless the documents fall within enumerated exemptions, id. § 552(b), or exclusions, id. § 552(c).
Section 552(b) contains nine enumerated exemptions allowing
the government to withhold documents or portions of documents. See 5 U.S.C. § 552(b)(1)-(b)(9). Subsection (b)(2) permits the government to withhold documents that are “related
solely to the internal personnel rules and practices of an agency.” 5 U.S.C. § 552(b)(2). Subsection (b)(4) permits the government to withhold from disclosure “trade secrets and
commercial or financial information obtained from a person
and privileged or confidential.” 5 U.S.C. § 552(b)(4). Subsection (b)(6) protects “personnel and medical files and similar
files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6).
[6] Subsection (b)(7) deals with law enforcement. It renders exempt from disclosure “records or information compiled for law enforcement purposes” where the production of
such law enforcement records would impede a valid government purpose or harm an individual’s interest. Specifically,
subsection (b)(7) allows the government to withhold:
records or information compiled for law enforcement
purposes, but only to the extent that the production
of such law enforcement records or information (A)
could reasonably be expected to interfere with
enforcement proceedings, (B) would deprive a person of a right to a fair trial or an impartial adjudication, (C) could reasonably be expected to constitute
an unwarranted invasion of personal privacy, (D)
could reasonably be expected to disclose the identity

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of a confidential source, including a State, local, or
foreign agency or authority or any private institution
which furnished information on a confidential basis,
and, in the case of a record or information compiled
by criminal law enforcement authority in the course
of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source,
(E) would disclose techniques and procedures for
law enforcement investigations or prosecutions, or
would disclose guidelines for law enforcement
investigations or prosecutions if such disclosure
could reasonably be expected to risk circumvention
of the law, or (F) could reasonably be expected to
endanger the life or physical safety of any individual.
5 U.S.C. § 552(b)(7).
[7] In addition, Congress added section 552(c) to the FOIA
in 1986 to allow an agency to “treat the records as not subject
to the [FOIA] requirements” in three specific categories
involving: (1) ongoing criminal investigations; (2) informant
identities; and (3) classified foreign intelligence or international terrorism information. 5 U.S.C. § 552(c)(1)-(c)(3)4; see
4

Subsection 552(c) provides:
(c)(1) Whenever a request is made which involves access to
records described in subsection (b)(7)(A) and—
(A) the investigation or proceeding involves a possible violation of criminal law; and
(B) there is reason to believe that (i) the subject of the investigation or proceeding is not aware of its pendency, and (ii)
disclosure of the existence of the records could reasonably be
expected to interfere with enforcement proceedings,
the agency may, during only such time as that circumstance continues, treat the records as not subject to the requirements of this
section.

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Benavides v. Drug Enforcement Admin., 968 F.2d 1243,
1246-47 (D.C. Cir. 1992) (discussing the legislative history of
the “three exclusions of § 552(c)”). Only subsection (c)(3)
deals with classified information, while subsections (c)(1) and
(c)(2) apply to law enforcement records. Therefore, plaintiffs’
contention that only classified information can be withheld
under the FOIA is belied by the statute.
As an alternative to their argument that the Sealed Order
must be disclosed to plaintiffs because the content is not classified, plaintiffs contend that the Order should be disclosed to
plaintiffs’ counsel, through a stringent protective order, so
that counsel may better represent plaintiffs as part of the
adversarial process. There is no authority to support this proposition in civil FOIA litigation.
[8] In Arieff, the D.C. Circuit rejected a similar argument
that plaintiffs’ counsel and expert should examine the government’s affidavit under a protective order. 712 F.2d at 146971. It reasoned that if the appellant’s suggestion was adopted,
it would adversely affect national security interests. It would
“color public perception of the security of confidential information in government files” because “[c]itizens whose per(2) Whenever informant records maintained by a criminal law
enforcement agency under an informant’s name or personal identifier are requested by a third party according to the informant’s
name or personal identifier, the agency may treat the records as
not subject to the requirements of this section unless the informant’s status as an informant has been officially confirmed.
(3) Whenever a request is made which involves access to records
maintained by the Federal Bureau of Investigation pertaining to
foreign intelligence or counterintelligence, or international terrorism, and the existence of the records is classified information as
provided in subsection (b)(1), the Bureau may, as long as the
existence of the records remains classified information, treat the
records as not subject to the requirements of this section.
5 U.S.C. § 552(c).

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sonal privacy or commercial data is at issue, foreign
governments that may have provided secret information to our
Executive Branch, and, for that matter, the officials of our
Executive Branch itself, will hardly have the assurance which
it is the purpose of the FOIA exemptions to provide if hostile
counsel and experts can ordinarily obtain access to assertedly
exempt information.” Id. at 1470. We agree.
Additionally, we agree with Arieff that the procedure of
only allowing counsel access to the protective information
would strain the attorney-client relation because it would put
“the attorney in the position of knowing, and being unable to
disclose to his principal, the very data he has been retained to
acquire.” Id. Even assuming that counsel is reliable and that
violations of protective orders would be detectable, it would
still not be appropriate in FOIA cases to allow appellant’s
counsel to see the very information that is the subject of the
litigation. Id.
[9] To ensure government compliance in FOIA litigation,
the FOIA permits lower courts to conduct ex parte, in camera
examination to determine whether the government’s withholding of documents from plaintiffs is appropriate. Though
the in camera proceeding is “without [the] benefit of criticism
and illumination by a party with the actual interest in forcing
disclosure,” Vaughn, 484 F.2d at 825, it is a necessary consequence of a procedure designed to protect secret information
from being improperly disclosed.
[10] If the contents of this order must be withheld from
plaintiffs under the FOIA, it must also be withheld from
plaintiffs’ counsel in order to avoid an intolerable conflict of
interest. In camera proceedings are thus sufficient to comply
with both due process and the purposes of the FOIA.
IV.

Conclusion

[11] In this case we have carefully reviewed the record and
the district court’s clear frustration with the government’s

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withholding from the court of responsive documents. The district court has, however, at the same time, concluded that such
documents were, for the most part, properly withheld from
plaintiffs under the FOIA. The Sealed Order that is the subject
of this appeal, while not disclosing any documents, does itself
contain information that the FOIA authorizes the government
to withhold from plaintiffs and that was disclosed only in
camera. We therefore hold that plaintiffs and plaintiffs’ counsel are not permitted to see the Sealed Order because full disclosure of the Sealed Order would compromise the authorized
secrecy from plaintiffs of some of the information it contains.
Accordingly, we VACATE the district court’s June 23,
2009 Sealed Order and REMAND to the district court to
revise the Sealed Order to eliminate statements the government has designated as national security and sensitive law
enforcement information before it may be unsealed.
VACATED and REMANDED for further proceedings
consistent with this opinion.