# U nited States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 14, 2024 Decided July 26, 2024

No. 22

- 5170

A NDRES F. C ABEZAS

, A PPELLANT

v.

F EDERAL B UREAU OF I NVESTIGATION

,

A PPELLEE

Appeal from the United States District Court

for the District of Columbia (No. 1:19

- cv

- 00145)

Brian D. Horwitz argued the cause and filed the briefs for appellant.

Johnny H. Walker III

, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Brian P. Hudak

and Jane M. Lyons , Assistant U.S. Attorneys. Kenneth A. Adebonojo , Assistant U.S. Attorney, entered an appearance.2

Before: P ILLARD and W ILKINS

, Circuit Judges , and

R OGERS

, Senior Circuit Judge

.

Opinion for the Court by Senior Circuit Judge R OGERS

.

R OGERS

, Senior Circuit Judge : Andres Cabezas appeals the grant of summary judgment to the Federal Bureau of Investigation on his motion pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, for records relating to his conviction of receipt of child pornography, 18 U.S .C. § 2252A(a)(2). While his direct appeal of his conviction was pending, Cabezas submitted FOIA requests for records under his name or any identifier assigned to his name. When the FBI

failed after six months to produce responsive records in its

possess ion, he sued

. The district court granted summary judgment to the FBI, finding that it had conducted a reasonable search, properly withheld documents pursuant to the FOIA and the Privacy Act, 5 U.S.C. § 552a, and disclosed all segregable

information , and summarily denied Cabeza s ’s motions for limited discovery and in camera review. Cabezas appeals

, principally challenging the adequacy of the search. He rais es multiple challenges , some without regard to statutory and procedural pre conditions . For the foll owing reasons, we

affirm.

I.

In 2017, Cabezas was arrested in a n FBI sting operation. Following his indictment for online enticement of a minor to engage in sexual activity, in violation of 18 U.S.C. § 2422(b), he pled guilty on October 18, 2017, to receipt of child pornography, in violation of 18 U.S.C. § 2252A(a)(2). He appealed his conviction and 151

- month sentence to the U.S. Court of Appeals for the Eleventh Circuit. While his direct appeal was pendin g , Cabezas submitted FOIA requests in May3

2018 to the U.S. Attorney General, the United States Marshals Service, and the FBI (Orlando Resident Agency) for records under his name or any identifier assigned to his name. H is request extended to arrest reports, investigatory records, video tapes, telephonic recordings, and photographs. On June 2 5, 2018, t he FBI acknowledged receipt of his request and notified him of related administrative matters, including copying fees

. After six months had passed and the FBI had not turned over responsive records in its possession, Cabezas filed suit on January 22, 2019, in the U.S. District Court for the District of

Columbia. He requested the court to declare that the FBI

violated the FOIA and the Privacy Act, enjoin it from continued withholding of responsive records and order the release without delay, expedite the proceedings

, and grant

o ther appropriate relief. Compl. at 3.

On November 22, 2019, the FBI filed a motion for summary judgment on the grounds that the responsive records were properly withheld under FOIA Exemption 7(A) , which permits withholding of records that could interfere with enforcement proceedings, and that Exemptions 3, 5, 6, 7(C), and 7(E) also applied. Cabezas filed an opposition on April 27,

2020

, and a supplemental opposition on June 23, 2020 . Si x days later he moved to compel preservation of private email

records that he alleged were generated from non

- governmental email accounts in violation of FBI policy. By sworn declaration of July 22, 202 0 , the FBI replied that it had “followed the records management policies and procedures.” Seidel Decl. ¶ 9 (July 22, 2020).

After t he Eleventh Circuit affirmed Cabezas’s guilty plea and sentence on December 5, 2019

, United States v. Cabezas

, 797 F. App’x 415, 417

– 19 (11th Cir. 2019)

, t he FBI acknowledged that Exemption 7(A) was inapplicable and that its “main argument for withholding records [was] moot.”4

Status Report ¶ 3 (July 14, 2020)

. In total, the FBI released to
Cabezas 176 pages in full, 41 pages and two videos in part, and withheld 74 pages in full (of which eleven were duplicative) under the FOIA and Privacy Act exemptions. The FBI also provided a Vaughn index describing each document withheld and the applicable FOIA e xemption. See Vaughn v. Rosen , 484 F.2d 820, 826

– 28 (D.C. Cir. 1973)

.

On April 1, 2021, the FBI renewed its motion for summary judgment. Cabezas

, in turn, filed a motion for summary judgment o n November 15, 2021, and evidentiary motions for limited discovery and in camera review. The FBI did not

oppos e the evidentiary motions and instead conduct ed another

search

. I n January and March 2022, the FBI made a supplemental release of audio recordings and photographs.

The district court granted summary judgment to the FBI

. Cabezas v. FBI

, No. 19

- cv

- 145, 2022 WL 898789 (D.D.C. Mar. 28, 2022). It found that the FBI had conducted a reasonable search and properly withheld information pursuant to FOIA Exemptions 5, 6, 7(C), and 7(E), and the Privacy Act,

and that the FBI had disclosed all segregable information. The

court summarily denied the motion for limited discovery and

the motion for in camera review. Order (Mar. 28, 2022). Thereafter, the court denied Cabezas’s mo tion to alter or amend the judgment.

Cabezas appeals the grant of summary judgment

, challenging the district court’s conclusions that the FBI’s search was adequate and its withholdings justified by FOIA exemptions, as well as the denial of his motions for limited discovery and in camera review. This court “review[s] de novo a district court’s grant of summary judgment in favor of an agency which claims to have complied with FOIA.” Nation Mag., Wash. Bureau v. U.S. Customs Serv. , 71 F.3d 885, 8895

(D.C. Cir. 1995). By contrast the court review s the denial of

the motions for discovery and in camera review for abuse of

discretion. Montgomery v. IRS , 40 F.4th 702, 713 (D.C. Cir. 2022) ; Cruz v. McAleenan , 931 F.3d 1186, 1191 (D.C. Cir. 2019)

.

II.

Cabezas challenges the district court’s findings under the

FOIA , not the Privacy Act . Of his multiple challenges, some are properly preserved for review. Others, however, are forfeited by failure to be raised in his opening brief

. Al

- Tamimi

v. Adelson , 916 F.3d 1, 6 (D.C. Cir. 2019). Still others improperly attempt to incorporate by reference arguments presented in the district court, id. , and th is court will consider only those addressed in the FBI’s responsive appellate brief,

see id. at 6

– 7. Our analysis addresses his challenges by subject.

The FOIA “was enacted to facilitate public access to Government documents” and “was designed ‘to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny.’” U.S. Dep’t of State v. Ray , 502 U.S. 164, 173 (1991) (quoting Dep’t of the Air Force v. Rose , 425 U.S. 352, 361 (1976)). But “[w]hile transparency and government accountability are at the heart of FOIA’s mandate, Congress exempted certain . . . records from disclosure to protect important governmental and pri vate interests in confidentiality.” Bartko v. U.S. Dep’t of Just. , 898 F.3d 51, 61 (D.C. Cir. 2018). The FOIA requires agencies to disclose

records up on request unless the records fall within one of nine exemptions, which are to be “narrowly construed,” Milner v. Dep’t of the Navy , 562 U.S. 562, 565 (2011) (quoting FBI v.

Abramson , 456 U.S. 615, 630 (1982)), yet “intended to have6

meaningful reach and application,” John Doe Agency v. John Doe Corp. , 493 U.S. 146, 152 (1989).

A.

To prevail on summary judgment against a challenge to the adequacy of an agency’s search

, “the agency must show that it made a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested.” Oglesby v. U.S. Dep ’ t of the Army , 920 F.2d 57, 68 (D.C. Cir. 1990). The agency must also provide a “reasonably detailed affidavit, setting forth the search terms and the type of search performed, and averring that all files likely to contain responsive materials (if such records exist) were searched.” Id. “Agency affidavits are accorded a presumption of good faith[.]” SafeCard Servs.,

Inc. v. SEC , 926 F.2d 1197, 1200 (D.C. Cir. 1991). On the other hand, i f the plaintiff provides “‘countervailing evidence’ as to the adequacy of the agency’s search,” Iturralde v. Comptroller of the Currency , 315 F.3d 311, 314 (D.C. Cir. 2003) (internal citation omitted), or “the record leaves substantial doubt as to the sufficiency of the search, s ummary judgment for the agency is not proper,” Campbell v. U.S. Dep’t of Just. , 164 F.3d 20, 27 (D.C. Cir. 1998) (internal citation omitted).

The FBI submitted three sworn declarations from Michael G. Seidel, Section Chief of the Record/Information Dissemination Section, dated July 22, 2020, March 2, 2021, and March 11, 2022, and one sworn declaration from David M. Hardy, the former Section Chief, dated November 20, 2019.

These affidavits were designed to demonstrate that the FBI had made a good faith effort to conduct a reasonable search for the records Cabezas requested. The FBI initially searched the Central Records System index, which is “an extensive system7

of records” consisting of files compiled and maintained by the “FBI in the course of fulfilling its integrated missions and functions as a law enforcement, counterterrorism, and intelligence agency.” Seidel Decl. ¶ 12 (Mar. 2, 2021). The

FBI used Cabezas ’s names and identifiers: Andres Fernando Cabezas, Andres F. Cabezas, and Andres Cabezas , which resulted in locating material responsive to Cabezas’s FOIA

request.

I n response to Cabezas’s argument in moving for summary judgment that it failed to disclose all relevant records,

the FBI conducted an additional search of the Central Records System. It also conducted a targeted search of the Tampa Field Office, contacting the special agent who maintained Cabezas’s criminal file. These supplemental searches resulted in the release of additional records to Cabezas. Even though the

FBI’s declaration abou t the Tampa Field Office search was thin regarding the identity of th e custodian of the records, see Oral Arg. Rec. at 44:40

– 47:20 (Feb. 14, 2024), the affidavits

describe d the FBI’s methodology for its search es , which databases it searched, and how the search method was calculated to locate responsive records. See Oglesby , 920 F.2d

at 68.

1.

Incomplete records. To the extent Cabezas contends that the FBI did not maintain “complete records” in the Central Records System, he overlooks records released in response to the supplemental targeted search in the Tampa Field Office and refers to likely emails on a commercial server and records on

his iPhone. See Appellant’s Br. 13.

Cabezas incorporates by reference his argument in the

district court that emails on a commercial Google email8

account used by FBI agents in his case should have been released, relying on an affidavit from a digital evidence forensic expert

. His FOIA request was limited to “records under [his] name and/or any identifier assigned to [his] name.” FOIA Request at 1 (May 9, 2018)

. These email messages were “serialized,” (i.e., “assigned a document number in the order in which the document is added to the file,” Seidel Decl. ¶ 13 (Mar. 2, 2021)), and released to Cabezas.

With regard to messages exchanged with the undercover agents and contained on his iPhone that Cabezas argued in the district court should have been released, the FBI explained that

these too were serialized into Cabezas’s case file

. Seidel Decl. ¶¶ 14

– 15 (Mar. 11, 2022)

. The FBI uncovered no other records during its reasonable search relating to Cabezas’s iPhone. Id. ¶ 15. In the district court, Cabezas had relied on the affidavit of his brother, Luis, who stated in a sworn affidavit after inspecting Ca bezas’s iPhone , which the FBI had seized

, that he was able to access the messaging screen but could not locate “any of the text message conversations involved in [Cabezas’s] case, nor the information [Cabezas] was asking for.” Luis F. Cabezas Aff. ¶ 23. The affidavit d id not offer information on the substantive content . O n appeal Cabezas does not develop the argument why there should be additional records before this court. “Mentioning an argument ‘in the most skeletal way, leaving the court to do couns el’s work, create the ossature for the argument, and put flesh on its bones’ is tantamount to failing to raise it.” Al

- Tamimi , 916 F.3d at 6 (quoting

S c hneider v. Kissinger , 412 F.3d 190, 200 n.1 (D.C. Cir. 2005)).

2

.

Records not uploaded to files. Cabezas renews his argument that the FBI failed to upload all the responsive9

records to the Central Records System, stating that he “used the fruits of his discovery in his criminal case to show that the FBI’s records and record keeping policies were deficient.” Appellant’s Br. 20. The district court explained that Cabezas

was co nflating records in his criminal discovery and those in the FBI’s possession when it received his FOIA request. On appeal Cabezas neither explains why th e district court erred nor describes what other locations might contain responsive

records that have n ot been searched using reasonable means.

B

.

The exemptions. Cabezas contends that responsive records were improperly withheld under FOIA Exemptions

. The FBI relied on Exemptions 5, 6, and 7(C) & (E)

. Cabezas’s challenge proves to be unpersuasive as to every exemption

.

Exemption 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,” 5 U.S.C. § 552(b)(5), and incorporates “the deliberative process pr ivilege, attorney

- client privilege, and attorney work

- product privilege.” U.S. Fish & Wildlife Serv.
v. Sierra Club, Inc. , 592 U.S. 261, 267 (2021). The FBI withheld two passages of a non

- public “detailed operational plan containing information related t o [Cabezas’s] arrest” under Exemption 5: Bates No. 122, for which the FBI invoked the deliberative process privilege and attorney

- client privilege, and Bates No. 125, for which the FBI invoked the deliberative process privilege. Seidel Decl. ¶ 20(b) (Mar. 11, 2022).

The deliberative process privilege “covers ‘documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.’” Dep’t10

of the Interior v. Klamath Water Users Protective Ass’n , 532 U.S. 1, 8 (2001) (quoting NLRB v. Sears, Roebuck & Co. , 421 U.S. 132, 150 (1975)). To fall within its protections, the document must be predecisional and deliberative. Sierra Club,

Inc. , 592 U.S. at 268. A document is predecisional if it was “generated before the agency’s final decision on the matter,” and deliberative if it was “prepared to help the agency formulate its position.” Id. The agency must also demonstrat e that disclosing the reco rds would not foreseeably harm an interest protected under the relevant exemption by “concretely explain[ing] how disclosure ‘would’

— not ‘could’

— adversely impair internal deliberations.” Reps. Comm. for Freedom of the Press v. FBI , 3 F.4th 350, 369

– 70 (D.C. Cir. 2021) (quoting Machado Amadis v. U.S. Dep’t of State , 971 F.3d 364, 371 (D.C. Cir. 2020)).

The FBI properly relied on the deliberative process privilege to withhold portions of an “FBI operational plan,” including material containing “suggestions regarding FBI operational strategies” and “memorializ[ing] communications

with an Assistant United S tates Attorney . . . who . . . provided advice regarding investigative strategy related to [Cabezas’s]

case.” Seidel Decl

. ¶ 37 (Mar. 2, 2021). This material is predecisional

. It was prepared prior to the specific operation,

and it does not “reflect fin al agency decisions

. ” I d. The

material is also deliberative . The FBI explained that the Assistant United States Attorney’s “recommendations and legal analysis were contingent on predicted scenarios that were only speculated to potentially occur.” Seidel Decl. ¶ 18 (Mar. 11, 2022). The FBI further explained how release of this information could harm future FBI investigations by creating a chilling effect on the FBI’s employees’ willingness to share ideas and would damage the integrity of the FBI’s investigative plans and strategies. Seidel Decl. ¶ 37 (Mar. 2, 2021).11

Cabezas insists that the FBI improperly invoked the deliberative process privilege to protect “a fact

- based arrest operations plan,” which has no relation to “agency [policy oriented] judgment .” Appellant’s Br. 14

– 16 (internal citation omitted). He relies on Shapiro v. CIA , 247 F. Supp. 3d 53 (D.D.C. 2017) . There t he district court suggested that a draft Operations Plan on preparations for an American delegation to

attend the funeral of South Africa President Nelson Mandela might not be deliberative

. Id

. at 63

– 64 . U pon in camera

review the court concluded that the Plan was both predecisional and deliberative

. Shapiro v. CIA , 272 F. Supp. 3d 115, 118 (D.D.C. 2017), vacated as moot , No. 22

- 5144, 2024 WL 1061322 (D.C. Cir. Mar. 8, 2024). Given the nature
of the sting investigation of Cabezas and others , Cabezas provides no basis for th is court to conclude that the FBI has

mischaracterize d the content of the material withheld under Exemption 5. The FBI’s sworn declarations s tate how the

withheld records f

all within the deliberative process privilege of Exemption 5

. Cabezas points to nothing in the record to the

contrary. See Watkins L. & Advoc., PLLC v. U.S. Dep’t of

Just. , 78 F.4th 436, 451 (D.C. Cir. 2023).

The FBI also invoked two o ther FOIA E xemptions to justify redaction of personal identifying information for government employees and various third parties . Exemption 6 protects from disclosure “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). Because the text of “Exemption 7(C)’s privacy [provision] is broader than . . . [that] in Exemption 6,” U.S. Dep’t of Just. v. Reps. Comm. for Freedom of the Press , 489 U.S. 749, 756 (1989), the cour t need not “consider Exemption 6 separately,” Roth v. U.S. Dep’t of Just. , 642 F.3d 1161, 1173 (D.C. Cir. 2011).12

Exemption 7(C) protects “records or information compiled for law enforcement purposes . . . to the extent that the production of such law enforcement records or information . . . could reasonably be expected to constitute an unwarranted invasion of persona l privacy

. ” 5 U.S.C. § 552(b)(7)(C). It requires the court to “ b alance the

. . . privacy interest against the public interest in disclosure.” Nat’l Archives & Recs.

Admin. v. Favish , 541 U.S. 157, 171 (2004). The requestor must show that there is a sig nificant public interest in the requested information and that the information is “likely to

advance that interest.” Id. at 172.

Cabezas does not challenge that the records at issue were “compiled for law enforcement purposes

, ” 5 U.S.C. § 552(b)(7). Instead he asserts that the public interest in his case outweighs the privacy interests of persons whose

information was redacted. Appellant’s Br. 13. In his view, the multiple instances of alleged misconduct by FBI agents during his investigation that he has identified would establish a significant public interest in learning the withheld ide ntities.

Cabezas allege s that (1) FBI case agents “potentially destroyed iPhone records and evidence” and failed to upload these records to the Central Records System, Cabezas’s Mem. for Summ. J. at 18 (citing his brother’s affidavit); (2) in 2013 an FBI special agent used his home computer in violation of FBI policy; (3) another agent created a Craigslist posting on an

unauthorized T

- Mobile cellphone; and (4) the FBI’s attempt to return his cellphone while he was in prison constitutes

misconduct because the iPhone was forfeited and in evidence.

The FBI invoked Exemption 7(C) to withhold identifying information of FBI special agents and professional staff, an Assistant United States Attorney and other local law enforcement personnel, third parties mentioned in investigative records, a third party of investigative interest to the FBI, and13

an individual who provided information to the FBI in the course of the investigation of Cabezas. Each of these individuals has a cognizable privacy interest. E.g.

, Schrecker v. U.S. Dep’t of Just. , 349 F.3d 657, 661 (D.C. Cir. 2003); Nation Mag., Wash. Bureau , 71 F.3d at 894. Still, “where there is a privacy interest protected by Exemption 7(C) and the public interest . . . asserted is to show that responsible officials acted negligently or otherwise improperly in the performance of their duties,” inform ation may be released if the requester “produce[s] evidence that would warrant a belief by a reasonable person that the alleged Government impropriety might have occurred.” Favish , 541 U.S. at 174; see SafeCard
Servs., Inc.

, 926 F.2d at 1206.

Cabezas maintains that the instances of alleged FBI

misconduct were sufficient to overcome the privacy interests of an unspecified number of these individuals. Appellant’s Br. 13, 18. He did not develop these claims on appeal, opting

instead to incorporate by reference his arguments in the district

court. S ee Appellee’s Br. 32. R eliance on incorporation by

reference to make arguments on appeal may not forfeit all of

Ca bezas’s claims to the extent the FBI has responded to some i n its appellate brief. See Appellees’ Br. 32

– 34; Al

- Tamimi

, 916 F.3d at 6

– 7. But vague allegations an d essentially “bare suspicion[s]” are not “ evidence that would warrant a belief by a reasonable person that the alleged Government impropriety might have occurred.” Favish , 541 U.S. at 174; see Kowal v.

U.S. Dep ’ t of Just.

, No . 22

- 523 1

, 2024 WL 3418844 , at *5 (D.C. Cir. July 16, 2024); SafeCard Servs., Inc.

, 926 F.2d at

1206. Cabezas has not proffered such evidence.

Additionally

, the FBI invoked Exemption 7(E) to withhold

undercover communications used in the investigation of

Cabezas

, the operational plan to which Exemption 5 applies in

part , and the details of investigative databases and their search14

results. Exemption 7( E) provides for the withholding of law enforcement records that “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 c ircumvention of the law.” 5 U.S.C. § 552(b)(7)(E)

. The exemption “only requires that the [agency] demonstrate logically how the release of the requested information might create a risk of circumvention of

the law.” Mayer Brown LLP v. IRS , 562 F.3d 1190, 1194 (D.C. Cir. 2009) (internal quotation omitted).

Cabezas stated during oral ar gument in this court that he had challenged the FBI’s invocation of Exemption 7(E) in the district court and was now replying to the FBI’s brief. Oral Arg. Rec. at 6:43

– 7:40 (Feb. 14, 2024). He did not include an objection in his opening brief, however, s ee Al

- Tamimi , 916

F.3d at 6 , and offers no persuasive explanation for his failure

. On this record, Exemption 7(E) suffices to support the FBI’s withholding of details about an undercover operation , the operational plan, and database information and search results.

Cabezas’s other preserved objections to the district court’s FOIA findings lack merit

. For instance, as an example of the FBI’s inappropriate invocation of Exemption s 6 and 7(C)

, Cabezas speculates that the FBI withheld his given alias in

document s concerning the indictment of an unidentified person

in the Eleventh Circuit

. Appellant’s Br. 21

. T he FBI explained that the redacted name is not that of Cabezas, but of a “third party of investigative interest.” Seidel Decl. ¶ 19(e) (Mar. 11, 2022); see also Oral Arg. Rec. at 47:40

– 48 :12 (Feb. 14, 2024)

.15

C.

Change of agency position. Cabezas’s suggestion in his reply brief that the FBI has changed its position in this court regarding allegations of misconduct is not well taken . J udicial estoppel “generally prevents a party from prevailing in one phase of a case on an argument and then relying on a contradictory argument to prevail in another phase .” New Hampshire v. Maine , 532 U.S. 742, 749 (2001) (quoting Pegram v. Herdrich , 530 U.S. 211, 227 n.8 (2000)). T he FBI agreed with the district court that Cabeza s “allude d to government misconduct but he fail s to identify any specific misconduct.” Opp’n to Pl.’s Mot. to Alter or Amend J. at 3 (May 6, 2022) (internal citation omitted).

Cabezas ’s view that t he FBI “acknowledge s that [he] specified the alleged misconduct

, ” Reply Br. 8 , shows only the FBI now describes his allegations as unsupported. The FBI has

not concede d that Cabezas’s allegations were of specific

misconduct. The FBI states instead that Cabezas alleged “purported misconduct” was never developed in this court. Appellee’s Br. 32. This shows no inconsistency in the FBI’s position that would warrant application of judicial estoppel

.

D.

Remand for findings. Finally, Cabezas seeks a remand for development of an adequate record on the ground that the

district court abused its discretion by failing to provide any reasoning for denying his motions for limited discovery and for

in camera review

. He relies on Summers v. Department of

Justice , 140 F.3d 1077, 1078 (D.C. Cir. 1998). Appellant’s Br.

10. Unlike there, no such abuse of discretion occurred here. The reason for summary denial of his discovery and in camera

motions is self

- evident in view of the district court’s reasons16

for granting summary judgment to the FBI. See

Pardo

- Kronemann v. Donovan , 601 F.3d 599, 612 (D.C. Cir. 2010). Given the evidence of an adequate search, see DiBacco v. U.S. Army , 795 F.3d 178, 188 (D.C. Cir. 2015), and Cabezas’s failure to “provide ‘countervailing evidence

, ’”

Iturralde , 315 F.3d at 314 (internal citation omitted), in the district court or to proffer such evidenc e on appeal

, a remand would serve no purpose

.

Accordingly, the court affirms the judgment of the district court granting summary judgment to the FBI and the order denying Cabezas ’s motion s for limited discovery and f or in

camera review

.