NOT FOR PUBLICATION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
 2 

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 
 3 

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.