United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 16, 2016 Decided July 29, 2016

No. 15-5201

AMERICAN IMMIGRATION LAWYERS ASSOCIATION,

APPELLANT

v.

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:13-cv-00840)

Julie A. Murray argued the cause for appellant. With her 

on the briefs was Allison M. Zieve.

Javier M. Guzman, Deputy Associate Attorney General, 

U.S. Department of Justice, argued the cause for appellees. 

With him on the brief were R. Craig Lawrence and Jane M. 

Lyons, Assistant U.S. Attorneys.

Before: HENDERSON, SRINIVASAN and MILLETT, Circuit 

Judges.

Opinion for the Court filed by Circuit Judge SRINIVASAN.
2

SRINIVASAN, Circuit Judge: Immigration judges are 

employees of the Department of Justice. The American 

Immigration Lawyers Association submitted a request to the 

Department under the Freedom of Information Act (FOIA) 

seeking disclosure of records related to complaints about the 

conduct of immigration judges. In response to the request, the 

government disclosed thousands of pages of records. The 

government, however, redacted information in those records 

that it believes is either statutorily exempt from disclosure or 

non-responsive to the request. The district court upheld both 

categories of redactions. We disagree as to each.

First, the government invoked one of FOIA’s statutory 

exemptions in redacting the immigration judges’ names from 

all of the disclosed records. The government reasoned that, as 

a blanket matter, the privacy interest of immigration judges in 

avoiding disclosure of their names necessarily outweighs the 

public’s interest in learning any of the judges’ names. We 

conclude that the government’s across-the-board approach 

cannot be sustained in light of the variety of privacy and 

public interests that may be at stake in connection with the 

disclosure of an immigration judge’s name. We therefore 

remand for a more individualized inquiry into the propriety of 

redacting judges’ names.

Second, with respect to the redactions based on nonresponsiveness, we find no statutory basis for redacting 

ostensibly non-responsive information from a record deemed 

responsive. Under the statutory framework, once the 

government concludes that a particular record is responsive to 

a disclosure request, the sole basis on which it may withhold

particular information within that record is if the information 

falls within one of the statutory exemptions from FOIA’s 

disclosure mandate. But the government in this case, after 

determining that records were responsive to AILA’s request, 
3

redacted discrete information within the records on the basis 

of non-responsiveness even if no statutory exemption shielded 

the information from disclosure. That approach cannot be 

squared with the statutory scheme.

The final issue we confront concerns FOIA’s 

establishment of an affirmative obligation to publish certain 

types of information regardless of any request for disclosure. 

The particular question is whether records documenting the 

resolution of complaints against immigration judges fit within 

the statutory criteria for affirmative disclosure. We agree 

with the district court that complaint resolutions fall outside 

the statute’s affirmative disclosure mandate.

I.

A.

Immigration judges are career civil-service employees in 

the Department of Justice’s Executive Office of Immigration 

Review (EOIR). 8 U.S.C. § 1101(b)(4). They preside over 

“deportation, exclusion, removal, recission, and bond” 

proceedings for noncitizens charged with violating the 

immigration laws. Job Announcement at 2 (J.A. 334); 8 

U.S.C. § 1101(b)(4); id. § 1229a. Their decisions are final 

unless appealed to the Board of Immigration Appeals (BIA), 

see 8 U.S.C. § 1101(a)(47)(B), and the BIA’s final decisions 

are in turn subject to judicial review, see 8 U.S.C. § 1252(a). 

In fiscal year 2015, only 8% of immigration judges’ decisions 

were appealed to the BIA. EOIR, FY 2015 Statistics 

Yearbook V1 (April 2016), https://www.justice.gov/eoir/page 

/file/fysb15/download.

In 2006, in the face of mounting public concerns about 

“immigration judges who fail to treat aliens appearing before 
4

them with appropriate respect and consideration and who fail 

to produce [an acceptable] quality of work,” then-Attorney 

General Alberto Gonzales launched a “comprehensive review 

of the immigration courts.” Mem. from Atty. Gen. Alberto

Gonzales to Members of the Bd. of Immigration Appeals 

(Jan. 9, 2006), https://www.justice.gov/sites/default/ 

files/ag/legacy/2009/02/10/ag-010906-boia.pdf. Following 

the review, the Attorney General announced revised training 

and evaluation procedures for immigration judges and 

instituted a requirement that new judges pass a written 

knowledge examination before hearing cases. See Mem. of 

Atty. Gen. Alberto Gonzales to the Deputy Att. Gen., et al. 

(Aug. 9, 2006), https://www.justice.gov/sites/default/files/ 

ag/legacy/2009/02/10/ag-080906.pdf. He also ordered a 

review of existing procedures for processing and responding 

to complaints about immigration judges. Id. at 4. 

At the time, the Department had no functioning system

for tracking complaints against immigration judges, nor was 

there any established procedure for resolving complaints. See

Keller Decl. ¶¶ 16-18 (J.A. 142-43). In May 2010, the 

Department implemented a new complaint database. Id. ¶ 19 

(J.A. 143). Under the new system, each new allegation of 

inappropriate conduct by an immigration judge goes into the 

database as a complaint and gets assigned a complaint number 

for tracking purposes. Id. “Complaint” is defined broadly to 

include any “information that comes to the attention of [the 

Office of the Chief Immigration Judge (OCIJ)] suggesting 

that an immigration judge may have engaged in conduct, 

whether in court or out of court, on duty or off duty, which 

may adversely affect the judge’s performance or duties or the 

fair, effective, or expeditious administration of the business of 

the immigration courts or the Government, or which may be 

inconsistent with the agency’s mission, goals, rules, policies 

or procedures.” Id. ¶ 20 (J.A. 143-44). 
5

The OCIJ oversees the process of receiving, reviewing, 

tracking, and responding to complaints against immigration 

judges. Complaints may be initiated either by an outside 

party or by OCIJ itself if it becomes aware of possible 

misconduct. See EOIR, Summary of OCIJ Procedures for 

Handling Complaints Against Immigration Judges 1 (May 17, 

2010), https://www.justice.gov/sites/default/files/eoir/legacy/ 

2013/05/23/IJComplaintProcess.pdf. Complaints are 

sometimes dismissed without any type of corrective action, 

such as when the complaint is frivolous or relates to the 

merits of an immigration judge’s decision. See id. at 3. 

When disciplinary action is appropriate, OCIJ follows a 

progressive disciplinary model, although “[w]here the 

conduct warrants it, serious disciplinary action may be 

imposed in the first instance.” Id. at 2. A non-frivolous 

complaint also may be resolved without disciplinary action—

for instance, through counseling or individualized training. 

Id. 

If there is an “identifiable complainant” for a particular 

complaint, OCIJ will notify that person upon receiving the 

complaint and again upon the taking of disciplinary action or 

closure of the complaint file. Id. at 3. Additionally, the 

government periodically makes available to the public

statistical information about complaints and the complaint 

process. See id. 

B.

The Freedom of Information Act generally requires 

government agencies to make information available to the 

public, subject to nine enumerated exemptions. See 5 U.S.C. 

§ 552(a), (b). For certain types of government records, the 

FOIA imposes an affirmative obligation—regardless of any 

request—to publish the information. Id. § 552(a)(1), (2). 
6

Other records must be disclosed to the public upon request 

unless they fall within one of the statutory exemptions. Id.

§ 552(a)(3). 

In November 2012, the American Immigration Lawyers 

Association (AILA) submitted a FOIA request to the 

Department of Justice seeking information about complaints 

filed against immigration judges. AILA took that action in 

light of ongoing concerns about immigration judges’ conduct

and questions about the transparency and efficacy of the 

complaint process. AILA’s request sought the following 

information:

(1) All complaints filed against immigration 

judges;

(2) All records that reflect the resolution of 

complaints filed against immigration 

judges, including the type of informal 

action taken, if any, or formal discipline 

imposed, if any;

(3) All records that reflect the reasons for 

resolving complaints against immigration 

judges and/or findings relied on to resolve 

complaints against immigration judges, 

including any reports or memoranda from 

the Department of Justice Office of 

Professional Responsibility (OPR) or 

Office of the Inspector General (OIG);

(4) All records incorporated by reference in 

documents that reflect the resolution of 

complaints filed against immigration 

judges; and 
7

(5) An index of the records described in 

paragraphs (2), (3), and (4) to the extent 

that those records constitute final opinions, 

including concurring and dissenti[n]g 

opinions, as well as orders, made in the 

adjudication of cases, pursuant to 5 U.S.C. 

§ 552(a)(2)(A).

Request Letter (J.A. 121).

In June 2013, after more than six months had gone by 

without a response, AILA filed this lawsuit in the district 

court. Shortly thereafter, EOIR began a series of rolling 

disclosures, providing to AILA many responsive records 

including complaint files and other documents. By April 

2014, EOIR had disclosed some 16,000 pages of documents 

encompassing 767 complaint files (including both 

substantiated and unsubstantiated complaints). The complaint 

files contained information about the date, nature, and 

resolution of each complaint, copies of relevant documents 

(e.g., the immigration judge’s written decisions and hearing 

transcripts), emails, and documentation of the disposition and 

any other action taken in response to the complaint. 

EOIR redacted from those records information it deemed 

exempt from disclosure under FOIA Exemptions 5 and 6. 

Exemption 5 covers information that would be privileged 

from disclosure in litigation, see 5 U.S.C. § 552(b)(5), and the 

redactions under that exemption are not at issue here. 

Exemption 6 covers “personnel and medical files and similar 

files the disclosure of which would constitute a clearly 

unwarranted invasion of personal privacy.” Id. § 552(b)(6). 

Invoking that exemption, EOIR redacted immigration judges’ 

names and other identifying information from the disclosed 

complaint files. EOIR also, however, identified each 
8

immigration judge by a unique three-digit code in order to 

permit AILA to connect complaints to a particular judge and 

to identify patterns or track the progress of discipline. 

Rodrigues 5/16/14 Decl. ¶ 16 (J.A. 28-29).

In addition, EOIR redacted other information falling 

outside any of FOIA’s enumerated exemptions, including, of 

particular relevance here, information deemed to be nonresponsive to AILA’s request even though found within a 

responsive record. Along with the redacted records, EOIR 

provided AILA with a Vaughn index and affidavits describing 

its rationale for all of the redactions. 

In the district court, AILA challenged both EOIR’s 

redaction under Exemption 6 and its redaction of nonresponsive information in responsive records. In addition, 

AILA argued that FOIA’s affirmative-disclosure obligation 

required publication of OCIJ’s complaint resolution decisions. 

The district court rejected each of AILA’s arguments and 

ultimately granted summary judgment to the government. 

Am. Immigration Lawyers Ass’n v. Exec. Office for 

Immigration Review (AILA II), 110 F. Supp. 3d 230, 232

(D.D.C. 2015); Am. Immigration Lawyers Ass’n v. Exec. 

Office for Immigration Review, 76 F. Supp. 3d 184, 193 

(D.D.C. 2014). AILA now appeals.

II.

AILA challenges the district court’s decisions 

concerning: (a) the validity of the categorical redaction of 

immigration judges’ names pursuant to Exemption 6; (b) the 

permissibility of redacting ostensibly non-responsive 

information within responsive records; and (c) the 

applicability of FOIA’s affirmative disclosure requirement to 

complaint resolutions. We disagree with the district court’s 
9

resolution of the first two issues and remand for further 

proceedings. As to the third issue, we affirm.

A.

We first consider EOIR’s blanket redaction of 

immigration judges’ names under FOIA’s Exemption 6. The 

Supreme Court has explained that FOIA’s exemptions are 

“explicitly made exclusive and must be narrowly construed.” 

Milner v. Dep’t of Navy, 562 U.S. 562, 565 (2011) (internal 

citations and quotation marks omitted). The agency bears the 

burden to establish the applicability of a claimed exemption to 

any records or portions of records it seeks to withhold. See 

Citizens for Responsibility & Ethics in Wash. v. Dep’t of 

Justice (CREW), 746 F.3d 1082, 1088 (D.C. Cir. 2014). 

Our review calls for us to “ascertain whether the agency 

has sustained its burden of demonstrating that the documents 

requested are . . . exempt from disclosure.” Assassination 

Archives & Research Ctr. v. CIA, 334 F.3d 55, 57 (D.C. Cir. 

2003) (citations omitted). An agency can carry its burden by 

submitting a Vaughn index, see Vaughn v. Rosen, 484 F.2d 

820 (D.C. Cir. 1973), along with affidavits from agency 

employees that “describe the justifications for nondisclosure 

with reasonably specific detail, demonstrate that the 

information withheld logically falls within the claimed 

exemption, and are not controverted by either contrary 

evidence in the record nor by evidence of agency bad faith,” 

CREW, 746 F.3d at 1088 (quoting Larson v. Dep’t of State, 

565 F.3d 857, 862 (D.C. Cir. 2009)). 

FOIA’s Exemption 6 enables the government to withhold 

“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). We generally 
10

follow a two-step process when considering withholdings or 

redactions under Exemption 6. First, we “determine whether 

the [records] are personnel, medical, or ‘similar’ files covered 

by Exemption 6.” Multi Ag Media LLC v. Dep’t of Agric., 

515 F.3d 1224, 1228 (D.C. Cir. 2008). There is no dispute 

that the records sought by AILA meet that criterion. Second, 

if, as here, the records are covered by the exemption, we 

“determine whether their disclosure ‘would constitute a 

clearly unwarranted invasion of personal privacy.’” Id.

(quoting 5 U.S.C. § 552(b)(6)). The dispute in this case 

concerns that second step. 

In assessing whether the disclosure of the information at 

issue—immigration judges’ names and identifying 

information—would rise to the level of a “clearly 

unwarranted invasion of personal privacy,” we “‘balance the 

public interest in disclosure against the interest Congress 

intended [Exemption 6] to protect.’” Dep’t of Def. v. FLRA, 

510 U.S. 487, 495 (1994) (quoting Dep’t of Justice v. 

Reporters Comm. for Freedom of Press, 489 U.S. 749, 776 

(1989)). Here, we follow another two-step process. The first 

step, which, again, no one disputes is satisfied here, requires 

determining that “disclosure would compromise a substantial, 

as opposed to a de minimis, privacy interest.” Nat’l Ass’n of 

Home Builders v. Norton, 309 F.3d 26, 33 (D.C. Cir. 2002)

(internal quotation marks omitted). Second, if so, we weigh 

the privacy interest at stake “against the public interest in the 

release of the records.” Id. (internal quotation marks 

omitted). 

“[T]he only relevant ‘public interest in disclosure’ to be 

weighed in this balance is the extent to which disclosure 

would serve the ‘core purpose of the FOIA,’ which is 

‘contributing significantly to public understanding of the 

operations or activities of the government.’” FLRA, 510 U.S. 
11

at 495 (quoting Reporters Comm., 489 U.S. at 775) (alteration 

and italics omitted). In other words, disclosure of government 

records under FOIA is meant to help the public stay informed 

about “what their government is up to.” Reporters Comm.,

489 U.S. at 773 (internal quotation marks omitted).

AILA argues that ongoing concerns about the complaint 

process and disciplinary action (or lack thereof) imposed on

immigration judges are relevant to understanding what the 

agency “is up to.” Id. We agree with AILA as a general 

matter, and have recognized similar public interests in our 

prior cases. See, e.g., CREW, 746 F.3d at 1093. We also note 

that EOIR has disclosed a substantial amount of information 

concerning the complaint system and the substance of actual 

complaints, and has made efforts to ensure that its disclosures 

are accessible and useful (including establishing a system to 

identify judges by anonymous three-digit codes, thereby

enabling AILA—and the public—to track repeat offenders

even without knowing the names of individual judges).

The relevant question, then, is not whether disclosing 

immigration judges’ names would serve the public interest in 

disclosure in the abstract. Instead, the question is whether, 

given the information already disclosed by EOIR, the 

“incremental value” served by disclosing an immigration 

judge’s name outweighs that person’s privacy interest. 

Schrecker v. Dep’t of Justice, 349 F.3d 657, 661 (D.C. Cir. 

2003). Even given that more targeted inquiry, we conclude 

that EOIR’s across-the-board redaction of all judges’ names 

from all responsive documents was inadequately justified.

In an affidavit submitted with its Vaughn index, EOIR 

outlined the rationale for its Exemption 6 redactions in 

categorical terms. It explained its view that all immigration 

judges have a privacy interest in withholding their names, and 
12

that their privacy interest, as a blanket matter, necessarily 

outweighs any public interest in learning any judge’s name. 

Rodrigues 5/16/14 Decl. ¶¶ 55-82 (J.A. 42-60). The affidavit 

went on to describe the different categories of redacted 

information (e.g., names, gender pronouns) and to explain 

how each category relates to the general privacy interest of all 

immigration judges. Id. None of EOIR’s materials addresses 

the privacy interests of individual immigration judges, or any 

potential public interest in learning individual immigration 

judges’ names in particular circumstances.

That categorical approach stands in contrast to EOIR’s

support for its Exemption 5 redactions (which are 

unchallenged here). For each of its Exemption 5 redactions, 

EOIR detailed the reason the exemption applies to the 

particular piece of information in question. It devoted a 

paragraph to each redaction (168 paragraphs in all), including, 

for instance, specific information about the authors and 

recipients of memoranda and emails as well as the general 

topics discussed in each record. See id. ¶¶ 83-251 (J.A. 60-

118). 

Exemption 6, we have explained, “does not categorically 

exempt individuals’ identities . . . because the ‘privacy 

interest at stake may vary depending on the context in which 

it is asserted.’” Judicial Watch, Inc. v. Food & Drug Admin., 

449 F.3d 141, 153 (D.C. Cir. 2006) (quoting Armstrong v. 

Exec. Office of the President, 97 F.3d 575, 582 (D.C. Cir. 

1996)); see also Nation Magazine v. U.S. Customs Serv., 71 

F.3d 885, 894-95 (D.C. Cir. 1995). To be sure, in certain 

situations we have allowed an agency to justify withholding 

or redacting records “category-of-document by category-ofdocument” rather than “document-by-document.” CREW, 

746 F.3d at 1088 (quoting Gallant v. NLRB, 26 F.3d 168, 173 

(D.C. Cir. 1994)). But we have permitted such an approach 
13

only if the documents within each category are sufficiently 

similar—and the categories are sufficiently well-defined and 

distinct—“to allow a court to determine whether the specific 

claimed exemptions are properly applied.” Id. (quoting 

Gallant, 26 F.3d at 173). 

In other words, “the range of circumstances included in 

[a] category [must] ‘characteristically support[] an inference’ 

that the statutory requirements for exemption are satisfied.” 

Nation Magazine, 71 F.3d at 893 (quoting United States v. 

Landano, 508 U.S. 165, 176-80 (1993)). The question, then, 

is whether there has been a sufficient showing that the 

balancing analysis under Exemption 6 would yield a uniform 

answer across the entire proffered category, regardless of any 

variation among the individual records or persons falling 

within it. We cannot say that is true here.

The records at issue encompass all complaints OCIJ

received during the relevant time period: whether 

substantiated or unsubstantiated, whether related to serious 

issues or comparatively trivial ones, and whether about 

immigration judges’ conduct on the bench or their conduct 

outside the workplace. Moreover, the privacy interests at 

stake encompass those of each immigration judge subjected to 

any of the wide variety of types of complaints: whether a 

sitting immigration judge or someone no longer on the bench, 

whether a judge who has faced only one complaint or a judge 

who has repeatedly been the target of complaints, and whether 

the judge has been subjected to some type of discipline or has 

avoided disciplinary action (and the reasons why). Given the 

variety in types of complaints and circumstances of individual 

immigration judges, not every judge has the same privacy 

interests at stake and not every complaint would equally 

enlighten the public about “what their government is up to.” 
14

Reporters Comm., 489 U.S. at 773; see Prison Legal News v. 

Samuels, 787 F.3d 1142, 1150-51 (D.C. Cir. 2015).

The interests on both sides of the Exemption 6 balancing 

test might vary in substantial measure with respect to different 

immigration judges (and perhaps different complaints). A 

retired immigration judge—who, after all, is a private 

citizen—presumably would have a greater privacy interest in 

avoiding disclosure of her name than would an immigration 

judge who sits on the bench today. Similarly, the public 

interest likely would be more pronounced in the case of a 

sitting immigration judge, who continues to make decisions as 

an employee of the Department of Justice, than in the case of 

a former judge. Additionally, disclosing the name of an 

immigration judge subject to numerous and/or serious 

substantiated complaints might shed considerable light on 

matters of public interest, whereas disclosing the name of an 

immigration judge subject to a single, unsubstantiated 

complaint might not. For instance, in the case of a sitting 

judge with a substantial number of serious and substantiated 

complaints, knowledge of her identity would enable the 

public to examine her official actions (including decisions), 

both past and future, and to assess any possible implications 

of those complaints for the conduct of her official 

responsibilities. By enabling the public to make such 

connections, knowing the identity of that judge could shed 

considerably more light on “what the[] government is up to,” 

Reporters Comm., 489 U.S. at 773, than simply knowing 

about the existence of some anonymous judge with a certain 

number of complaints against her.

“If it [were] always true that the damage to a[n] 

[immigration judge’s] privacy interest from a [complaint 

file]’s production outweigh[ed] the FOIA-based public value 

of such disclosure, then it [would be] perfectly appropriate to 
15

conclude as a categorical matter that” disclosing immigration 

judges’ names would constitute a clearly unwarranted 

invasion of personal privacy. Reporters Comm., 489 U.S. at 

779. But here, variations in the privacy and public interests at 

stake leave us unable to find, at least as a blanket matter, that 

the Exemption 6 balance tips in favor of withholding 

immigration judges’ names in all circumstances. That is not 

to say, necessarily, that EOIR could not ultimately support 

redacting identifying information in all cases if its 

justifications for doing so were framed in a more targeted 

manner. That question is not before us, however. Because 

EOIR here sought to justify its withholding of immigration 

judges’ names in purely categorical, across-the-board terms, it 

has not carried its burden to justify the Exemption 6 

redactions.

On remand, if EOIR continues to claim that Exemption 6 

warrants withholding the names of all immigration judges, it

should make a more particularized showing for defined 

subgroups of judges or for individual judges. See Prison 

Legal News, 787 F.3d at 1151-52. The district court would 

then “engage in ad hoc balancing of the competing interests at 

stake” for each subgroup of immigration judges or for each 

judge. Nation Magazine, 71 F.3d at 895. The court, upon 

conducting the Exemption 6 balancing, might determine that 

the balance tips towards withholding in some, many, or all 

instances. And of course, if EOIR allocates immigration 

judges into subgroups and the grouping methodology is 

inadequate, the court may require EOIR to further separate the 

judges or make individual showings for each judge. At this 

stage, it suffices for us to conclude that “a categorical rule is 

inappropriate.” CREW, 746 F.3d at 1096 (emphasis deleted).
16

B.

We next turn to EOIR’s redaction of ostensibly nonresponsive material within responsive records. In response to 

AILA’s motion for summary judgment, EOIR submitted a 

Vaughn index and affidavit explaining its non-responsive 

redactions. EOIR claimed it was under “no obligation . . . to 

release information that concerned matters unrelated to 

[AILA]’s FOIA request because the information [wa]s outside 

the scope of the request.” Rodrigues 7/17/14 Supp. Decl. ¶ 6 

(J.A. 477) (citing 5 U.S.C. § 552(a)(3)(A)). (Although EOIR 

claims that it was not required to submit a Vaughn index,

Appellee Br. 44, we have no need to decide that issue today.)

AILA subsequently filed a motion to compel production 

of the non-responsive material. In an affidavit filed in 

response to that motion, EOIR noted that there were 64 pages 

of responsive records with non-responsive material redacted.

It gave examples of the reasons for those redactions. “The 

type of non-responsive information” redacted evidently

includes “information about the need for an immigration 

judge to clean his/her office, whether an immigration judge 

had returned to the bench after a security issue, [and] the 

discussion of vacation plans[,] and personal medical 

conditions of EOIR staff.” Rodrigues 5/14/15 Decl. ¶ 26 

(J.A. 634). In its Vaughn index, EOIR included short 

explanations specific to each redaction or withheld document. 

The district court, relying on its own past practice and 

that of other district courts in recent years, denied AILA’s 

motion to compel production of the non-responsive material. 

AILA II, 110 F. Supp. 3d 230. Our court, however, has yet to 

address the issue. AILA’s appeal thus brings to us a question 

of first impression: if the government identifies a record as 

responsive to a FOIA request, can the government 
17

nonetheless redact particular information within the 

responsive record on the basis that the information is nonresponsive? We find no authority in the statute for the 

government to do so.

FOIA requires that “each agency, upon any request for 

records which (i) reasonably describes such records and (ii) is 

made in accordance with published rules stating the time, 

place, fees (if any), and procedures to be followed, shall make 

the records promptly available to any person.” 5 U.S.C.

§ 552(a)(3)(A). The statute allows that, in certain specified 

situations inapplicable here, the agency may “treat the 

[responsive] records as not subject to” the disclosure 

obligation. Id. § 552(c)(1)-(3). But responsive records are 

generally subject to the disclosure obligation. The sole FOIA 

provision enabling the government to withhold responsive 

records is section 552(b), which sets forth the nine statutory 

exemptions. That section also explicitly allows for the 

redaction of exempt information within responsive records, 

providing that “[a]ny reasonably segregable portion of a 

record shall be provided to any person requesting such record 

after deletion of the portions which are exempt under this 

subsection.” Id. § 552(b). 

The statute thus sets forth the broad outlines of a process 

for agencies to follow when responding to FOIA requests: 

first, identify responsive records; second, identify those 

responsive records or portions of responsive records that are 

statutorily exempt from disclosure; and third, if necessary and 

feasible, redact exempt information from the responsive 

records. The statute does not provide for withholding 

responsive but non-exempt records or for redacting nonexempt information within responsive records. 
18

In light of the Supreme Court’s instruction that FOIA’s 

exemptions are “explicitly made exclusive and must be 

narrowly construed,” Milner, 562 U.S. at 565 (internal 

citations and quotation marks omitted), we do not see how 

EOIR’s non-responsive redactions here can be squared with 

the statute. Those redactions find no home in FOIA’s

scheme. Rather, once an agency identifies a record it deems

responsive to a FOIA request, the statute compels disclosure 

of the responsive record—i.e., as a unit—except insofar as the 

agency may redact information falling within a statutory 

exemption. See 5 U.S.C. § 552(a)(3)(A), (b). In the context 

of a record containing exempt information, accordingly, the 

“focus of the FOIA is information, not documents.” Mead 

Data Central, Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242, 

260 (D.C. Cir. 1997). But outside of that context, FOIA calls 

for disclosure of a responsive record, not disclosure of 

responsive information within a record.

In particular, nothing in the statute suggests that the 

agency may parse a responsive record to redact specific

information within it even if none of the statutory exemptions 

shields that information from disclosure. To the contrary, in

expressly allowing for—and only for—“deletion of the 

portions” of a responsive record “which are exempt,” 5 

U.S.C. § 552(b), the statute reinforces the absence of any 

authority to delete portions of a responsive record which are 

not exempt. Indeed, the statute specifies that it “does not 

authorize withholding of information . . . except as 

specifically stated in” its terms. Id. § 552(d). In short, 

Congress determined that the statutory exemptions 

sufficiently cover the types of information which it is 

appropriate for the government to redact from a responsive 

document—e.g., information “related solely to the internal 

personnel rules and practices of an agency,” id. § 552(b)(2); 

certain types of “trade secrets and commercial or financial 
19

information,” id. § 552(b)(4); and “inter-agency or intraagency memorandums or letters which would not be available 

by law to a party other than an agency in litigation with the 

agency,” id. § 552(b)(5).

The practical significance of FOIA’s command to 

disclose a responsive record as a unit (after deletion of exempt 

information) depends on how one conceives of a “record.” 

Here, the parties have not addressed the antecedent question 

of what constitutes a distinct “record” for FOIA purposes, and 

we have no cause to examine the issue. Rather, for purposes

of this case, we simply take as a given EOIR’s own

understanding of what constitutes a responsive “record,” as 

indicated by its disclosures in response to AILA’s request. 

Although FOIA includes a definitions section, id. § 551, 

that section provides no definition of the term “record.” 

Elsewhere, the statute describes the term “record” as 

“includ[ing] any information that would be an agency record 

. . . when maintained by an agency in any format, including an 

electronic format,” id. § 552(f), but that description provides 

little help in understanding what is a “record” in the first 

place. Compare, e.g., id. § 552a(a)(4) (defining “record” 

under the Privacy Act as “any item, collection, or grouping of 

information”); 44 U.S.C. § 2201(2) (defining “Presidential 

records” as “documentary materials, or any reasonably 

segregable portion thereof,” meeting certain criteria); id.

§ 3301 (defining “records” under the Federal Records Act as 

“all recorded information, regardless of form or 

characteristics,” meeting certain criteria). 

Under FOIA, agencies instead in effect define a “record” 

when they undertake the process of identifying records that 

are responsive to a request. See id. § 552(f)(2). We have no 

occasion here to consider the range of possible ways in which 
20

an agency might conceive of a “record.” But we note that, in 

guidance to agencies on processing FOIA requests, the 

Department of Justice addresses the issue of documents that 

cover multiple, unrelated topics. DOJ, OIP Guidance: 

Determining the Scope of a FOIA Request, FOIA Update, 

Vol. XVI, No. 3 (1995), 

https://www.justice.gov/oip/blog/foia-update-oip-guidancedetermining-scope-foia-request. While using different 

terminology, that guidance sets forth a number of 

considerations for agencies to take into account when 

determining whether it is appropriate to divide such a 

document into discrete “records.” Id.

EOIR notes that email can pose special challenges 

because “it is not unusual for an email chain to traverse a 

variety of topics having no relationship to the subject of a 

FOIA request.” Gov’t’s Br. 43. We understand EOIR’s 

concerns, but insofar as they relate to the policy choices 

embedded in the scope of the statute’s disclosure mandate,

they are best directed to Congress. We must interpret the 

statute as written. For our purposes, the dispositive point is 

that, once an agency itself identifies a particular document or 

collection of material—such as a chain of emails—as a 

responsive “record,” the only information the agency may 

redact from that record is that falling within one of the 

statutory exemptions.

Insofar as the government in a different case might 

undertake to conceive of an individual “record” more 

narrowly, we note that, here, the agency’s redactions on 

grounds of non-responsiveness went down to the level of an 

individual sentence within a paragraph within an email 

message. We find it difficult to believe that any reasonable

understanding of a “record” would permit withholding an 

individual sentence within a paragraph within an email on the 
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ground that the sentence alone could be conceived of as a 

distinct, non-responsive “record.”

For the reasons we have explained, it was improper for 

EOIR to redact non-responsive information from responsive 

records. We thus remand to the district court for assessment 

of whether any of the information impermissibly redacted as 

non-responsive might be permissibly redacted as statutorily 

exempt. If not, EOIR must disclose the information.

C.

Under FOIA’s affirmative disclosure requirement,

“[e]ach agency, in accordance with published rules, shall 

make available for public inspection and copying,” among 

other things, “final opinions, including concurring and 

dissenting opinions, as well as orders, made in the 

adjudication of cases.” 5 U.S.C. § 552(a)(2). AILA claims 

that complaint resolution decisions for immigration judges 

amount to “final opinions [and] orders, made in the 

adjudication of cases” and thus must affirmatively be 

disclosed by EOIR regardless of any request. We find no 

error in the district court’s rejection of that claim. 

Complaint resolutions do not result from an adjudicatory

process such that we would consider them “final opinions” 

rendered in the “adjudication of [a] case[].” Id. In Skelton v. 

United States Postal Service, the Fifth Circuit emphasized 

that the ability of a third party to participate as a party and to 

obtain “personal relief” in a proceeding bears significantly on 

the determination whether, for purposes of FOIA’s 

affirmative disclosure requirement, the proceeding amounts to

an “adjudication of a ‘case’” culminating in a final order. 678 

F.2d 35, 40 (5th Cir. 1982). The court interpreted the statute

to refer to final opinions resulting from proceedings “in which 
22

a party has a right to set the agency decision-making process 

in motion and obtain a determination concerning the statute or 

other laws the agency is charged with interpreting and 

administering.” Id. at 41. We agree with that approach.

AILA is right, of course, that individuals may set in 

motion the complaint process for immigration judges. 

Individual complainants (should they choose to identify 

themselves) are even entitled to receive notifications when 

their complaints are resolved. But nothing in the complaint 

process makes an individual complainant a party to the 

investigation or to any other aspect of the process. Complaint 

resolutions thus do not reflect a final decision as to the rights 

of outside parties; nor do they entitle any outside parties to 

any form of relief. As a result, they are not subject to FOIA’s 

affirmative disclosure requirement. 

In addition, the affirmative disclosure requirement has 

long been understood to mandate disclosure of decisions that 

“constitute the making of law or policy by an agency.”

Common Cause v. IRS, 646 F.2d 656, 660 (D.C. Cir. 1981); 

see NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 153 (1975). 

Complaint resolution decisions do not fit that mold. They set 

no precedent, have no binding force on the agency in later 

decisions, and indeed have no effect on anyone except the 

individual immigration judge who is the subject of the

particular complaint. We fail to see how the affirmative 

disclosure of complaint resolution decisions would serve the 

requirement’s core purpose—preventing the creation of 

“secret (agency) law,” Sears, 421 U.S. at 153—when each 

resolution is sui generis. See Leeds v. Comm’r of Patents & 

Trademarks, 955 F.2d 757, 762 (D.C. Cir. 1992); Vietnam 

Veterans of Amer. v. Dep’t of Navy, 876 F.2d 164, 165 (D.C. 

Cir. 1989).
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* * * * *

For the foregoing reasons, we affirm the district court in 

part, reverse in part, and remand the case for further 

proceedings consistent with this opinion. 

So ordered.