United States Court of Appeals 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 22, 2019 Decided December 20, 2019 

No. 18-5123 

RYAN NOAH SHAPIRO, 

APPELLANT

v. 

UNITED STATES DEPARTMENT OF JUSTICE, 

APPELLEE

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: GARLAND, Chief Judge, GRIFFITH, Circuit Judge, 

and WILLIAMS, Senior Circuit Judge. 

Opinion for the Court filed by Senior Circuit Judge

WILLIAMS. 
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WILLIAMS, Senior Circuit Judge: In 1982 the Federal 

Bureau of Investigation’s then-Director William Webster 

published an article broaching the subject of “mosaic theory” 

and describing a “test” the FBI conducted called “Operation 

Mosaic.” Webster reviewed the way in which “seemingly 

innocuous information [released under the Freedom of 

Information Act] can be combined with records released at a 

different time or with the requester’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 quoted one of our decisions, 

Halperin v. CIA, 629 F.2d 144, 150 (D.C. Cir. 1980), where we 

wrote: “[E]ach individual piece of intelligence information, 

much like a piece of jigsaw puzzle, 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 explore the FBI’s thoughts 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 files that responded to the search 

terms “Operation Mosaic” and “mosaic study” in various FBI 

databases. J.A. 147–48. And he asked for “all other records 

constituting or referring to Operation 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 Sussman 
3

v. U.S. Marshals Serv., 494 F.3d 1106, 1111 (D.C. Cir. 2007). 

We must draw all reasonable inferences 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 not 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 database (“ACS”). A “Universal 

Index” search in ACS yields information indexed in the 

automated databases that preceded ACS itself. Per the FBI’s 

affiant, the indices cover “a variety of subject matters to include 

individuals, organizations, events, 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 requests. 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 slip for administrative 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 explaining that on review the files 

were found “either non-responsive because the files did not 
4

relate to the specifics of [Dr. Shapiro’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 files, 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. Shapiro 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). Exemption 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). Nevertheless, 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 the government on 

summary judgement. 

 First, the affidavit does not explain how the agency 

concluded that the files preliminarily listed as responsive did 

not relate to Dr. Shapiro’s request. (Dr. Shapiro makes no 

claim as to the file listed on the search slip as only potentially 

responsive. Reply Br. 15.) We recognize that the search slip 

purported only to record a preliminary finding. And obviously 

the law should not force an agency to jump through complex 

hoops merely because a preliminary 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 rely 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.” SafeCard 
5

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 system, and especially where the 

search slip distinguished between responsive and potentially

responsive files, the FBI can obtain summary judgment (as to 

files originally identified as “responsive”) only by offering 

some non-conclusory justification 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 files 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 responsive in the search slip—

were not responsive or had been destroyed (and which). This 

leaves us with “positive indications of overlooked materials” 

and “substantial doubt” about 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 destroyed. 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 provide “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 sufficient 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) (affirming agency’s production 
6

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 files’ destruction in a log. If 

presented in an affidavit, such an explanation would suffice. 

 On remand, the district court should permit the FBI to 

submit further evidence to supplement these three deficiencies 

and to file a renewed motion 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 indexer 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 which the FBI concluded did not 

respond to Dr. Shapiro’s request. According to the FBI, two of 

the files concerned “a Human Trafficking Operation, and the 

term ‘Mosaic’ was located in the business name that provided 

services to the victims.” J.A. 289. Dr. Shapiro disclaims any 

interest in these files. See Appellant’s Br. 35–36 (“Although 

arguably within the scope of Dr. Shapiro’s broad requests, he 
7

does not challenge the FBI’s non-responsiveness determination 

as to these two records.”). 

For the other three files, the FBI’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 article 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 Mosaic. We agree, especially 

considering the FBI’s having explained the use of “mosaic” in 

the two withheld records relating 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 “Operation 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 intended 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 make erroneous determinations 

about what is of interest to him and what is not,” Oral Argument 

at 47:14, a plausible rationale for his wishing to see the files. If 

the FBI offers a fuller explanation on remand, he may be 

satisfied, and neither the district court nor we will need to 

address the legal questions his 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 court is reversed with respect 

to the files identified as “responsive” 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.