# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 22, 2019 Decided December 20, 2019

No. 18-5123

R

YAN N OAH S HAPIRO , A PPELLANT

v.

U

NITED S TATES D EPARTMENT OF J USTICE , A PPELLEE

Appeal from the United States District Court for the District of Columbia (No. 1:16-cv-01399)

Jeffrey Light argued the cause and filed the briefs for plaintiff-appellant.

Brian J. Field , Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Jessie K. Liu , U.S. Attorney, and R. Craig Lawrence , Assistant U.S. Attorney.

Before: G ARLAND , Chief Judge , G RIFFITH , Circuit Judge

, and W ILLIAMS , Senior Circuit Judge

. Opinion for the Court filed by Senior Circuit Judge W ILLIAMS

.2

W ILLIAMS , Senior Circuit Judge : In 1982 the Federal Bureau of Investigation’s then-Director William Webster published an article broaching th e subject of “mosaic theory” and describing a “test” the FBI conducted called “Operation Mosaic.” Webster reviewed the way in which “seemingly innocuous information [releas ed under the Freedom of Information Act] can be combined with records released at a different time or with the re quester’s personal knowledge,” leading to revelations about sensitive FBI sources or investigations—just as the individual tiles in a mosaic may combine to reveal a complex meaning. Joint Appendix (“J.A.”) 130–31. In support, the Director qu oted one of our decisions, Halperin v. CIA , 629 F.2d 144, 150 (D.C. Cir. 1980), where we wrote: “[E]ach individual pie ce of intelligence information, much like a piece of jigsaw puzzl e, may aid in piecing together other bits of information even when the individual piece is not of obvious importance in itself.”

Appellant Dr. Ryan Shapiro has sought to use FOIA, 5 U.S.C. § 552 et seq., to explor e the FBI’s thoug hts about and possible uses of mosaic theory in its handling of FOIA cases. Dr. Shapiro filed a series of FOIA requests on the subject, asking among other things for file s that responded to the search terms “Operation Mosaic” and “m osaic study” in various FBI databases. J.A. 147–48. And he asked for “all other records constituting or referring to Opera tion Mosaic.” J.A. 148. Later, he filed a FOIA request for records relating to his FOIA requests.

Unsatisfied with the agency’s productions, Dr. Shapiro went to court, where he lost on summary judgment. In this appeal, he challenges the FBI’s explanations that certain files were not responsive to his request or were destroyed.

Because this case comes to us at summary judgement, we review the district court’s determination de novo . See Sussman3

v. U.S. Marshals Serv. , 494 F.3d 1106, 1111 (D.C. Cir. 2007). We must draw all reasonable infe rences in Dr. Shapiro’s favor and can rule for the FBI only if there is no material issue of fact in dispute. See Inst. for Justice v. IRS , 941 F.3d 567, 569 (D.C. Cir. 2019). As the FBI did no t sufficiently explain its determinations, we reverse the district court’s contrary ruling, vacate the decision in part and remand for further proceedings.

* * *

We start with a set of issues arising out of the FBI’s handling of a “search slip” that evidently served as an intermediate step in the Bureau ’s search for “mosaic study” in its Automated Case Support data base (“ACS”). A “Universal Index” search in ACS yields information indexed in the automated databases that preced ed ACS itself. Per the FBI’s affiant, the indices cover “a variet y of subject matters to include individuals, organizations, ev ents, or other subjects of investigative interest.” J.A. 37.

The FBI provided the search slip in question, actually a spreadsheet, in response to Dr. Shapiro’s FOIA request for information about his FOIA reque sts. According to the FBI’s affiant, search slips keep track of the “preliminary results of the [agency’s] search,” and the FBI “routinely lists all potentially responsive files on a search sl ip for administ rative tracking purposes.”

In this case, the search slip identified 28 files as “responsive” or “potential[ly]” responsive. J.A. 104–05. Evidently as a result of further examination, the FBI reclassified the files, informing Dr. Shapiro that no records met his request. In response to Dr. Shapiro’s complaint that the FBI had withheld files indicated on the search slip as responsive, the FBI supplied an affidavit expl aining that on review the files were found “either non-responsiv e because the files did not4

relate to the specifics of [Dr. Sh apiro’s] request or were legally destroyed.” J.A. 181–82. As to 16 numbered files, the affidavit specified which—whether they were non-responsive or destroyed. As to certain f iles, whose numbers had been redacted, the FBI response didn’t even disclose which of those two categories the FBI believed applicable.

(We pause to note that the FBI may not have needed to release its search slip to Dr. Sh apiro in the first place. FOIA’s exemption 5 permits agencies to withhold “pre-decisional and deliberative” materials. Nat’l Sec. Archive v. CIA , 752 F.3d 460, 463 (D.C. Cir. 2014). Exempt ion 5 might have applied to the search slip in this case. See Assassination Archives & Research Ctr. v. CIA , 781 F. Appx 11, 13 (D.C. Cir. 2019) (per curiam) (unpublished). Neverthe less, the FBI gave Dr. Shapiro the search slip, enabling him to marshal it as evidence.)

In three respects, the FBI’s explanation doesn’t provide enough information to permit ruling for th e government on summary judgement.

First, the affidavit does not explain how the agency concluded that the files prelimin arily listed as responsive did not relate to Dr. Shapiro’s re quest. (Dr. Sh apiro makes no claim as to the file listed on th e search slip as only potentially responsive. Reply Br. 15.) We recognize that th e search slip purported only to record a pr eliminary finding. And obviously the law should not force an ag ency to jump through complex hoops merely because a prelimin ary review seemed positive; such a rule would likely incline an agency to take a rather grudging view in its first screening. What’s more, in FOIA cases, courts frequently re ly on “reasonably detailed affidavit[s]” to affirm the nature and adequacy of an agency’s search. See DiBacco v. U.S. Army , 795 F.3d 178, 188 (D.C. Cir. 2015) (citation and quotation omitted). And we give these agency affidavits “a presumption of good faith.” SafeCard5

Servs., Inc. v. SEC , 926 F.2d 1197, 1200 (D.C. Cir. 1991). But where a record’s presence on a search slip arose from some sort of “hit” in the FBI’s indexing sy stem, and especially where the search slip distinguishe d between responsive and potentially responsive files, the FBI can ob tain summary judgment (as to files originally identified as “responsive”) only by offering some non-conclusory justifi cation for each ultimate classification as non-responsive. Id . at 1201 (affidavit cannot be “conclusory”).

Second, the affidavit says nothing—at least nothing clear—about the file s whose numbers were redacted, though it identifies each numbered file as either non-responsive or destroyed. As a result, we have no idea whether those redacted records—originally listed as re sponsive in the search slip— were not responsive or had been destroyed (and which). This leaves us with “positive indica tions of overlooked materials” and “substantial doubt” abou t the adequacy of the government’s search. See DiBacco , 795 F.3d at 188 (citation and quotation omitted).

Third, the affidavit does not explain why or how the FBI knew that certain files had been de stroyed. To be sure, “[i]f the agency is no longer in possession of” files, it need not “take further action in order to produce” them. SafeCard , 926 F.2d at 1201. But affidavits must pr ovide “adequate assurance that the documents were in fact destroyed.” Id . at 1201; cf. Weisberg v. DOJ , 627 F.2d 365, 369 (D.C. Cir. 1980) (holding that a statement of belief that a record had been destroyed did not constitute a suffic ient explanation). True enough, the FBI’s affidavit alludes to its practice of handling record retention and disposal “under supervision of the National Archives and Records Administration,” J.A. 182 n.3, perhaps implying that these were destroyed pursuant to regular retention schedules. Cf. Agolli v. DOJ , 2016 WL 6238495, at *1 (D.C. Cir. 2016) (per curiam) (unpublished) (a ffirming agency’s production6

when files had been “destroyed in accordance with its retention schedules”). But the affidavit must set forth not just an agency’s conclusion that it no longer possesses a document but also some underlying fact or facts to show the document’s likely fate. At oral argument, government counsel suggested that the agency recorded the fi les’ destruction in a log. If presented in an affidavit, such an explanation would suffice.

On remand, the district c ourt should permit the FBI to submit further evidence to supplement these three deficiencies and to file a renewed moti on for summary judgment.

* * *

The FBI also ran a search for the term “Operation Mosaic” in its Electronic Case Filing System (“ECF”) and Sentinel databases. Unlike the ACS index, an “ECF text search returns ‘hits’ for search terms located within all electronically uploaded documents.” J.A. 178 (emphasis added). Sentinel likewise searches a document’s full text, as well as some additional information. In everyday terms, searching ACS seems akin to opening a book to a specific index entry and finding the page numbers which the inde xer identified as relevant. An ECF or Sentinel text search, by contrast, combs through the entire (metaphorical) book to identify each instance in which the word appears in the text, as one might with an e-book.

The ECF and Sentinel searches for Operation Mosaic returned five hits, all of wh ich the FBI concluded did not respond to Dr. Shapiro’s request. According to the FBI, two of the files concerned “a Human Tr afficking Operation, and the term ‘Mosaic’ was located in th e business name that provided services to the victims.” J.A. 289. Dr. Shapiro disclaims any interest in these files. S ee Appellant’s Br. 35–36 (“Although arguably within the scope of Dr . Shapiro’s broad requests, he7

does not challenge the FBI’s non- responsiveness determination as to these two records.”).

For the other three files, the FB I’s affiant simply stated that the files “consisted of counterintelligence and organized crime information.” As to these, Dr . Shapiro offers two arguments for why he should receive them. He first points to the argument in Director Webster’s own arti cle that the mosaic effect’s impact was “perhaps greatest in our organized crime program and in our foreign counterintelligence program.” J.A. 117. Thus, he says, the FBI needs to provide more explanation for why those files’ references to the same topics did not involve Director Webster’s Operation Mo saic. We agree, especially considering the FBI’s having expl ained the use of “mosaic” in the two withheld records rela ting to human trafficking.

Because of our decision to remand for a fuller explanation, we need not address Dr. Shapiro’s second argument: These three files—even if they reference a different Operation Mosaic—fell within the literal terms of his request directly, as they reference the term “O peration Mosaic.” Though Dr. Shapiro had framed his request by reference to the mosaic effect identified by Director Webster, he had added that his inclusion of that framing was “to enable the FBI to locate the requested records [and] not inte nded to limit the scope of my request.” Reply Br. 24; J.A. 157. At oral argument counsel explained that Dr. Shapiro sought these records “because of [a] concern that the FBI would ma ke erroneous determinations about what is of interest to h im and what is not,” Oral Argument at 47:14, a plausible rationale for hi s wishing to see the files. If the FBI offers a fuller expl anation on remand, he may be satisfied, and neither the distri ct court nor we will need to address the legal questions hi s second argument raises. Cf. LaCedra v. Exec. Office for U.S. Att’ys. , 317 F.3d 345, 348 (D.C. Cir. 2003).8

* * *

In his briefs, Dr. Shapiro argued that pursuant to another request on appeal here the FBI must conduct an ECF full text search of “FBI Research Matters” files (known as “94” files) for ones referring to the Freedom of Information Act and/or the Privacy Act. See Appellant Br. 11. Before oral argument, the government agreed to conduct that search. We thus agree to the parties’ joint request that we vacate the district court’s opinion on this point and remand the matter, preserving Dr. Shapiro’s ability to challenge the adequacy of the FBI’s search.

* * *

The decision of the district c ourt is reversed with respect to the files identified as “respons ive” in the search slip and the three ACS/Sentinel files, vacated with respect to the 94 files, and remanded for further proceedings not inconsistent with this opinion.

So ordered.