### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 20

‐ 3504

J ACQUELINE S TEVENS

, Plaintiff

‐ Appellant

,

v.

U NITED S TATES D EPARTMENT OF S TATE

, Defendant

‐ Appellee

.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 17 C 2494

— John Z. Lee

, Judge

.

____________________

A RGUED O CTOBER 1, 2021

— D ECIDED D ECEMBER 9, 2021

____________________

Before E ASTERBROOK

, M ANION

, and W OOD

, Circuit Judges

.

W OOD

, Circuit Judge

. Jacqueline Stevens, a Professor of Po

‐

litical Science at Northwestern University, is conducting re

‐

search into the relations between the foreign campuses of

American universities, the federal government, and private

‐

sector entities. As part of that research, Professor Stevens sub

‐

mi tt ed three Freedom of Information Act requests to the De

‐

partment of State. A lawsuit follow ed, terminating in entry of

summary judgment for the Department. On appeal, Professor2 No. 20

‐ 3504

Stevens contends that summary judgment was improper both

because the Department’s searches were inadequate and be

‐

cause its withholdings were unwarranted. We are not per

‐

suaded by either point, and so we a ffi rm.

I

The events giving rise to this case began in February 2015,

when Professor Stevens filed thr ee FOIA requests with the

Department. Request 3180 (the Northwestern request) sought

all materials from the Department’s headquarters and the Qa

‐

tar U.S. consulate referring to “Northwestern University’s

Qatar campus.” Request 3181 (the Campuses request) sought

policy and planning materials relating to the establishment of

“U.S. university campuses in Qatar, Abu Dhabi, South Korea,

China, and Singapore.” Finally, Request 3575 (the

USAID/MEPI request) sought doc uments sent to or from the

U.S. Agency for International Development (USAID) and

documents produced, received, or maintained by the Middle

East Partnership Initiative (MEPI) relating to “U.S. Govern

‐

ment funds transferred to the Ind ependent Center of Journal

‐

ists”; “Northwestern University and its components, includ

‐ ing the Medill School of Journalism”; and “the Center of Jour

‐

nalism Excellence.”

Dissatisfied with the pace and quantity of the Depart

‐

ment’s productions, Professor Stevens filed suit in March

2017. Years of negotiations and motions practice followed.

Over that time, the Department provided Professor Stevens

with 128 complete records and 350 partial records resp onsive

to the Northwestern request, 29 complete records and two

partial records responsive to the USAID/MEPI request, and

no records responsive to the Campuses request. It alsoNo. 20

‐ 3504 3

withheld 22 records responsive to the Northwestern request

and two records responsive to the USAID/MEPI request.

In May 2019, the Department moved for summary judg

‐

ment. In support of the motion, it submitted a 35

‐ page decla

‐

ration describing its search processes. Eric Stein, the Director

of the Department’s Office of Information Programs and Ser

‐

vices, prepared the de claration. The Department also submit

‐

ted a Vaughn index describing each withheld document and

the grounds for withholding it. See Vaughn v. Rosen

, 484 F.2d

820, 826–28 (D.C. Cir. 1973).

For the most part, the district court granted the summary

‐ judgment motion, but it ordered the Department to conduct

follow

‐ up Northwestern searches in the records of two of its

subdivisions. (The Department had searched those records

for “Northwestern University” rather than the broader

“Northwestern.”) The Department complied, producing two

additional records, and the district court then entered final

judgment. This appeal followed.

II

Before turn ing to the FOIA standards and their applica

‐

tion, we must address a docket

‐ management dispute. In Au

‐

gust 2017, the Department approached Professor Stevens

with a proposal. The Department’s preliminary searches had

turned up a very large number of documents it deemed “po

‐ tentially responsiv e” to the Northwestern request. It asked

Professor Stevens to provide a set of keywords that could be

used to streamline productions from those documents. She

agreed and furnished the Department with a list of 20 or so

terms. In so doing, Professor Stevens made clear, she was as

‐ sisting with “prioritization” but wa s not waiving her right to4 No. 20

‐ 3504

an adequate production of documents responsive to the orig

‐

inal Northwestern request. In its September 2017 status re

‐

port, the Department memorialized its understanding of the

deal. If Professor Stevens were unsatis fi ed with the adequacy

of the fi ltered production, then the parties would discuss how

to ev aluate any remaining documents. Professor Stevens

voiced no objection to the status report’s account or proposed

method of proceeding.

The Department moved forward with the Northwestern

production, employing the agreed

‐ upon keywords to fi lter

the already

‐ identi fi ed universe of potentially responsive doc

‐

uments. It informed Professor Stevens that it had fi nished its

resulting bul k productions in February 2018. Professor Ste

‐

vens expressed no dissatisfaction with its reliance on the key

‐

word list at the time. The Department completed some small

follow

‐ up productions in early May. Again, Professor Stevens

voiced no concerns about its use of the keywords. Nor di d she

say anything a few weeks later, when the Department fi led a

Vaughn index and summary

‐judgment motion relying on the

keyword agreement. Only in September 2018—a year after

the status report and months after the Department’s produc

‐

tions were complete—did Professor Stevens fi rst object. She

asserted that the keywords we re meant only to help the De

‐

partment prioritize its work, not to limit its ultimate obliga

‐

tions. When she renewed that argument at summary judg

‐

ment, the district court rejected it, holding that her objections

to the Department’s use of the list had come too late.

As we of ten have said, district courts have “considerable

discretion to manage their dockets and to require compliance

with deadlines.” Keeton v. Morningstar, Inc.

, 667 F.3d 877, 884

(7th Cir. 2012). It is true that in this case the parties never setNo. 20

‐ 3504 5

an explicit deadline for Professor Stevens to object to the ade

‐

quacy of the fi ltered results. But that fact did not strip the dis

‐

trict court of all power to manage the case; to the contrary, it

remained entitled to take reasonable steps to keep the case

moving forw ard. And given the timeline just described, the

court was well within its rights to hold that Professor Ste

‐

vens’s objections came too late. Accordingly, in assessing the

adequacy of the Department’s Northwestern search, we do so

in light of Stevens’s acquiescence to the Department’s reliance

on the keyword list.

It is worth noting, in th is connection, that nothing we de

‐

cide today precludes Professor Stevens from fi ling a new FOIA

request seeking documents not captured by the keyword list.

Agreements constraining the universe of documents to be

searched in response to one request do not collaterally estop

or otherwise bar requesters fro m fi ling future requests outside

the scope of the earlier search. (Nonetheless, the loser in one

FOIA suit cannot simply fi le the identical request again and

start over.) Whether Professor Stevens chooses to take further

permissible action is up to her.

III

We are now ready to discuss the merits of the appeal. We

acknowledge at the outset that we have not been consistent in

the standard of review we have applied to grants of summary

judgment in FOIA cases. Higg s v. U.S. Park Police

, 933 F.3d 897,

903 (7th Cir. 2019) (collecting cases). But our recent pr actice

has been to distinguish between two parts of the inquiry, and

to apply a different standard to each one. Henson v. Dep’t of

Health & Hum. Servs.

, 892 F.3d 868, 875–76 (7th Cir. 2018). The

first is whether the district court properly granted summary

judgment. For that, we take a de novo look at the decision and6 No. 20

‐ 3504

ask whether there is any genuine issue of material fact about

the adequacy of the agency’s search. Rubman v. U.S. Citizen

‐ ship & Immigr. Servs.

, 800 F.3d 381, 387 (7th Cir. 2015). But

when we turn to the propriety of withholdings, a more com

‐ plex standard is necessary. We begin by considering de novo

whether, as a threshold matter, the district court had an ade

‐

quate fact ual basis for its decisions. Id. at 388. This step most

often turns on the specificity of the agency’s affidavit, its

Vaughn index, and whether the district court conducted an in

camera revi ew of the contested materials. Id. Our purpose at

this stage is to decide whether the district court had enough

in front of it to make a legally sound decision about whether

an exemption applies. If it did, we move to the second step,

reviewing for clear error its conclusion that th e exemption did

apply. Id. The thinking is that the district court is best situated

to conduct the comprehensive, record

‐ by

‐ record review that

FOIA withholdings may require. Becker v. IRS

, 34 F.3d 398, 402

n.11 (7th Cir. 1994).

A

We begin with the adequacy of the Department’s searches.

A search is adequate if it is the result of “a g ood faith effort”

and is also “reasonable in light of the request.” Rubman

, 800

F.3d at 387. “Good faith is presumed, and it can be bolstered

by evidence of the agency’s efforts to satisfy the request”; rea

‐

sonableness “is a flexible and context

‐ dependent standard.”

Id.

Professor Stevens takes issue with the presumpt ion of

good faith that agencies enjoy in FOIA litigation. But that rule

is well settled. See, e.g.

, Henson

, 892 F.3d at 875; Rubman

, 800

F.3d at 387. And there are good reasons for this approach. It

essentially requires us to credit the agency’s sworn statementsNo. 20

‐ 3504 7

in the absence of evidence to the contrary. Administrative reg

‐ ularity is the baseline assumption throughout our law, FOIA

included. Here, the Department has documented its exten

‐

sive, good

‐ faith efforts to satisfy the three requests in a thor

‐ ough declaration prepared by its chief FOIA officer. And it

has produced hundre ds of documents over the course of four

years of negotiation and engagement with Professor Stevens.

Nothing in this history is incompatible with good faith.

In assessing the reasonableness of the search, we look first

to the processes described in Director Stein’s declaration. An

agency is entitled to s upport its searches through affidavits,

so long as they are “non

‐ conclusory” and “reasonably de

‐

tailed.” Henson

, 892 F.3d at 875. An affidavit is sufficiently de

‐

tailed if it “set[s] forth the search terms used” and “the kind

of search[es] performed,” and “aver[s] that all files likely to

contain res ponsive documents were searched.” Id. The Stein

declaration satisfies each of these criteria.

Professor Stevens, however, sees things differently. She

first contends that Director Stein’s declaration lacks crucial

details, preventing us from evaluating whether the Depart

‐

ment searched all databases likely to contain responsive doc

‐

uments. Her main points of concern relate to th e records

‐ man

‐

agement system at the U.S. Embassy in Doha, the Depart

‐

ment’s process for choosing databases to search, and the De

‐ partment’s account of what she terms its “general file sys

‐

tem.”

Professor Stevens’s first problem is that she waived this

argument by failing to raise it be low. It should go without

saying that “arguments not raised to the district court are

waived on appeal.” Puffer v. Allstate Ins. Co.

, 675 F.3d 709, 718

(7th Cir. 2012).8 No. 20

‐ 3504

In any case, we do not share Professor Stevens’s concerns

about the declaration. The Department’s general file system,

according to the declaration, is distributed across “[e]ach of

‐

fice within the Department, as well as each Foreign Service

post and mission.” FOIA does not compel large, complex

agencies such as the Department of State to maintain a spe

‐

cific sort of centralized file syste m. As for the places searched

at the Doha Embassy, the declaration indicates that the De

‐

partment searched shared drives and print servers, the email

records of employees in the three sections likely to have

worked on matters responsive to th e requests, and the ambas

‐

sador’s post

‐ 2015 email records. That is sufficient detail for

our review. And the declaration explains that the Depart

‐

ment’s officers made choices about what to search based on

their “familiarity with the holdings of the Department’s rec

‐

ords systems, applicable records disposition schedules, and

the substa ntive and functional mandates of numerous De

‐

partment offices and Foreign Service posts and missions.”

Professor Stevens aptly notes that there is considerable discre

‐

tion in this system. But to be fair to the Department, its records

are spread across offices in over 200 countries; some discre

‐

tion is ine vitable. In our assessment, the Department’s ac

‐

count of its methods provides sufficient detail for us to say

that its methods were reasonable.

Professor Stevens’s second complaint is that there are nu

‐

merous locations, which she identifies, that she contends

should have been searched but were not. Bu t her list is a mix

of locations that were in fact searched ( e.g.

, “classified

emails”), that no longer exist ( e.g.

, the ambassador’s pre

‐ 2015

records), or that could reasonably have been deemed unlikely

to contain responsive emails ( e.g.

, foreign national employees’

emails). None of the criticized omissions was unreasonable.No. 20

‐ 3504 9

Before leaving this point, however, we must comment on

one aspect of the district court’s reasoning. It struck Professor

Stevens’s factual contentions in her complaint because it

deemed them not to be based on her personal knowledge. See

Fed. R. Civ. P. 56(c)(4). We have concerns about that reaso n

‐ ing. Professor Stevens was asserting a predictive fact—that

the locations in question were likely to contain responsive ma

‐

terials. Rule 56 is concerned with facts “that would be admis

‐

sible in evidence,” which we take to be of a different sort. A

FOIA claimant is entitled to argue that a s earch was unrea

‐

sonable because a likely storehouse was not searched. District

courts are free to disagree with that prediction, but they

should be cautious about treating Rule 56(c)(4) as a bar to such

a prediction when the claimant has relied on accurate, albeit

secondhand, information about the responsibilities of specific

departments or officials.

B

If material is responsive, an agency must rel ease it unless

the agency can carry its burden to establish that the material

falls under one of the nine FOIA exemptions. 5 U.S.C. § 552(b).

Stevens challenges the Department’s reliance on three exemp

‐

tions.

The first of these, the national

‐ security exemption, applies

to materials “specifically authorized under criteria estab

‐

lished by an Executive order to be kept sec ret in the interest

of national defense or foreign policy and [that] are in fact

properly classified pursuant to such Executive order.” Id.

§ 552(b)(1). Here, the Department withheld m aterial classified

pursuant to Executive Order 13,526, which establishes the

rules for identifying and handling classified material

throughout the executive branch. Professor Stevens launches10 No. 20

‐ 3504

a facial assault on Order 13,526, asserting, among other

things, that it “leads to the abdication of the role of the Judici

‐ ary.” But it does no such thing. Using such sources as Vaughn

indices, sworn affidavits, and in camera review, courts are able

to assess national

‐ security withholdi ngs made pursuant to

Order 13,526, as this case illustrates.

Professor Stevens’s more specific challenges to the Depart

‐

ment’s national

‐ security withholdings fare no better. Docu

‐

ment 27, for instance, would reveal confidential

‐ source infor

‐

mation and risk the harassment of an education official. Doc

‐

ument 28 would reveal information th at a Qatari official

shared in confidence. Document 34 would risk confidential

‐

source information and harm to U.S.–Qatari relations. And so

on. These and the other national

‐ security grounds for the

challenged withholdings are articulated in convincing detail

in the Vaughn index. Professor Stevens’s arguments to the

contrary just reiterate her general concerns ab out document

classification—a topic well beyond any particular FOIA re

‐

quest.

The second exemption Professor Stevens contends was

misapplied covers materials “specifically exempted from dis

‐

closure by statute.” 5 U.S.C. § 552(b)(3). Material “pertaining

to the issuance or refusal of visas” falls under this heading. 8

U.S.C. § 12 02(f). Professor Stevens contests the Department’s

reliance on these two statutes to support its withholding of

three documents, arguing that records withheld under sec

‐

tions 552(b)(3) and 1202(f) must pertain to a “past or pending

request” and that the three documents in question do not. But

her only authority for her presumed rule is an unpublished

district

‐ court opinio n. See Immigr. Just. Clinic v. U.S. Dep’t of

State

, 2012 WL 5177410, at *1–2 (S.D.N.Y. Oct. 18, 2012). AndNo. 20

‐ 3504 11

even if we saw merit in reading “pertaining to” so narrowly,

it would make no difference here. The document in dispute in

Immigrant Justice Clinic concerned a person’s “activities while

in immigration detention.” Id. at *1. Here, in contrast, two of

the three withheld documents are emails titled “Help with

U.S. Visa,” while the th ird is a letter “pertain[ing] directly to

the issuance or refusal of a visa.” They would thus satisfy

even the requirement that Professor Stevens urges us to adopt

(an invitation, we note, that we are declining).

We turn next to the exemption for “inter

‐ agency or in tra

‐

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). We have understood this ex

‐ emption to apply to documents that would be privileged in

the government’s litigation against a private party. Enviro

Tech Int’l, Inc. v. EPA

, 371 F.3d 370, 374 (7th Cir. 2004). Here,

the Department has invoked the deliberative

‐ process privi

‐ lege to wit hhold cables and emails containing preliminary

agendas for official visits, memo drafts, and the like. Professor

Stevens does not specifically contest the deliberative nature of

any of thes e documents. Instead, she makes two general ob

‐ jections. First, she asserts that cables are never deliberative be

‐

cause they always “constitute final agency action.” This is in

‐

correct, as is evident from some of the cables described in the

Vaughn index. Second, she argues that a document is only pre

‐

decisional if it pertains “to the formation or adoption of an

official agency policy” or “adjudi cation.” But the privilege is

not so limited. A document is predecisional if it is generated

before an agency’s final decision on a matter, whether that

matter is official or not. Cf. U.S. Fish & Wildlife Serv. v. Sierra

Club, Inc.

, 141 S. Ct. 777, 786 (2021).12 No. 20

‐ 3504

Finally, Professor Stevens suggests that some of the with

‐

held documents could instead have been produced in part.

But she provides no specifics. And our independent review of

the Vaughn index, coupled with the Department’s production

of portions of more than 350 segregable documents, leave us

confident th at the Department’s efforts to identify such docu

‐

ments were sufficient.

IV

We AFFIRM the judgment of the district court.