# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 16, 2016 Decided July 29, 2016

No. 15

- 5201

A MERICAN I MMIGRATION L AWYERS A SSOCIATION

, A PPELLANT

v.

E XECUTIVE O FFICE FOR I MMIGRATION R EVIEW

, ET AL

., A PPELLEES

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: H ENDERSON

, S RINIVASAN and M ILLETT

, Circuit Judges

.

Opinion for the Court filed by Circuit Judge S RINIVASAN

.2

S RINIVASAN

, 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 infor mation in those records
th at 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 statuto ry exemption s in redact ing 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 publi c’s interest in learning any of the judges ’ name s . 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 a n immigra tion 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 non

responsiveness, we find no statutory basis for redacting ostensibly non

- responsiv e information from a record deemed responsive. Under the statutory framework, once the government concludes that a partic ular record is responsive to

a disclosure request, the sole basis on which it may withhold particular information within that record i s if the information
falls within one of the statutory exemptions from FOIA’s disclosure mandate. But the government in this case, after determining that record s w ere responsive to AILA’s request

,3

redacted discrete information within the record s on the ba sis
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 publ ish 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 agr ee 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 viol ating 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’ decision s 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 before4

them with appropriate respect and consideration and who fail to produce [an acceptable] quality of work,” then

- Attorney
General Alberto Gon zales launched a “comprehensive review of the immigration co urts.” Mem

. from Att y

. Gen. Alberto
Gonzales to Members of the B d

. 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

Att y

. Gen. Alberto Gonzales to the Deputy Att. Gen

. , et al. (Aug. 9, 2006), ht tps://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 functionin g 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

- 4 4).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/l egacy/ 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 acti on 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 resolv ed 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

governm ent 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 info rmation. 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 lig ht of ongoing concerns about immigration judges’ conduct and questions about the transparency and efficacy of the compl aint 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
Off ice of the Inspector General (OI G);

(4) All records incorporated by reference in
documents that reflect the resolution of complaints filed against immigration judges; and7

(5) An index of the records described in paragraphs (2), (3), and (4) to the extent that those records constitute final opinions,

in cluding 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).

Reque st 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
includ ing 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 ex emption 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 immigr ation judges’ names and other identifying information from the disclosed complaint files. EOIR also, however, identified each8

immigration judge by a unique three

- digit code in order to permit AILA to connect complaints to a particular judge and
to identif y 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 non

responsive 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 chall enged both E OIR’s redaction under Exemption 6 and its redaction of non

responsive information in responsive records. In addition, AILA argued that FOIA’s affirmative

- disclosure obligation required publication of OCIJ’s complaint resolution decisions.

T he 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’s9

resol ution 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
ci tations 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 Responsib ility & Ethics in Wash

. v. Dep’t of

Justice ( CRE W ), 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.2 d 820 (D.C. Cir. 1973), along with affidavits from agency employees that “describe the justifications for nondi sclosure 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 108 8 (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

per sonal privacy.” 5 U.S.C. § 552(b)(6). We generally10

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.” M ulti 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 ‘wo uld 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 i dentifying
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 woul d 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 pub lic 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 t he complaint process and disciplinary action (or lack thereof) imposed on immigration judge s 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 c ases. 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 a nd useful (including establish ing 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 disclosi ng 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 outweig hs 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 wa s 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 , and12

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
informat ion (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,

EO IR 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 o n 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

- of

document” rather than “document

- by

- document.” CREW

, 746 F.3d at 1088 (quot ing Gallant v. NLRB, 26 F.3d 168, 173 (D.C. Cir. 1994)). But we have permitted such an approach13

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 r equirements 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 wo uld 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 th e 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 in terests 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 whe ther the judge has been subject ed to some type of discipline or has
avoided disciplin ary action (and the reasons why). Given the variety in types of complaints and circumstances of individual immigratio n 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

c itizen

— 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 jud ge , 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 considera ble 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

comp laints, knowledge of her identity would enable the public to examine her official actions (including decisions), both past and future, and to assess any possible imp lications of those complaints for the conduct of he r 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] per fectly appropriate to15

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 intere sts 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 . B ecause EOIR here sought to justify its withholding of immigration judges’ names in purely categorica l, 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 name s of all immigration judges, it should make a more particularized showing for defined subgroup s 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 subgr oup 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 allocat es 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 i s inappropriate.” CREW , 746 F.3d at 1096 (emphasis deleted).16

B.

We next turn to EOIR’s redaction of ostensibly non

responsive material within responsive records. In response to AILA’s motion for summary judgment, EOIR submitted a Vaughn index and affidavi t explaining its non

- responsive
redactions. EOIR claimed it was under “no obligation . . . to
release information that concerned matters unrelated to [AILA]’s FOIA r equest because the information [wa] s outside the scope of the request.” Rodrigues 7/17/14 Supp. Decl. ¶ 6 (J.A. 477) (ci ting 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 t he reaso ns for those redactions . “T he
type of non

- responsive information” r edacted 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 s hort 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, de nied 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 recor d as responsive to a FOIA request, can the government17

nonetheless redact particular information withi n the responsive record on the basis that the information is non

responsive ? 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 respons ive 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 ar e 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

statu torily exempt from disclosure; and third, if necessary and
feasible , redact exempt informat ion from the responsive
records . The statute does not provide for withholding responsive but non

- exempt records or for redacting non

exempt 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
exempt ion

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

, 260 (D.C. Cir. 1997)

. But outside of th at context, FOIA calls
for disclosure of a responsive record, not disclosure of responsive information within a record.

In particular, n othing 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
shield s that information from disclosure

. To the contrary, in expressly allow ing for

— and only for

— “deletion of the portions” of a responsive record “which are exempt,” 5
U.S.C. § 552(b), the statute reinforc es the absence of any authority to delete portions of a responsive record which are

not exempt. Indeed, the statute specifies that it “does no t 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 red act 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 financial19

information,” id. § 552(b)(4); and “ inter

- agency o r intra

agency 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 delet ion 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.

A lthough 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 id entifying records that are responsive to a request

. See i d. § 552(f)(2). We have no
occasion here to consider the range of possible ways in which20

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

- guidance

determining

- scope

- foia

- request

. While using different terminology, that guidance sets forth a numb er 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 materia l

— 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 indiv idual “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 with in a paragraph with in 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 the21

ground that the sentence alone could be conceived of as a distinct, non

- responsive “ record. ”

For the reasons we have explained, it was i mproper for

EOIR to redact non

- responsive information from responsive
records. We thus r emand to the district court for assessment
of whether any of the information impermissibly redacted as

non

- responsive might be permissibly redacted as statutorily

exem pt . 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 fo r 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 adjudica tion 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

.

C omplaint resolutions do not result from an adjudicatory process such that we w ould consider th em “final opinions”
rendered in the “adjudication of [a] case [] .” Id. In Skelton v.
United S tates 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 di sclosure requirement, the proceeding amounts to

an “ adjudicat i o n 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 which22

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 i nterpreting and
admi nistering.” 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 a ny other aspect of the process. C omplaint
resolutions thus do not reflect a final decision as t o 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 disclo sure 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 NL RB v. Sears, Roebuck & Co. , 421 U.S. 132, 153 (1975). Complaint resolution decision s 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 decision s 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)

.23

* * * * *

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.