Id. at *5 (citing Carson v. U.S. Office of Special Counsel,
633 F.3d 487, 491 (6th Cir.
2011)). Again noting that “the FOIA claim provide[d] an adequate and available remedy
for [Rimmer], who, through the FOIA claim and the mandamus claim, [sought] the same
relief—the production of documents,” the district court, without addressing parts (1) and
(2) of the mandamus test, found that part (3) was unsatisfied and thus that the mandamus
claim“fail[ed] on its face.”
Ibid.
After conducting its in camera review, the district court also granted the
government’s motion for summary judgment on Rimmer’s FOIA claim. The court began
No. 11-6286 Rimmer v. Holder, et al. Page 7
by noting that the government “must show that it made a ‘good faith effort to conduct
a search for the requested records[’] . . . and that [any] withheld materials fall within a
FOIA statutory exemption.” Rimmer v. Holder, No. 3:10-1106,
2011 WL 4431828, at
*4 (M.D. Tenn. Sept. 22, 2011) (quoting CareToLove v. FDA,
631 F.3d 336, 340
(6th Cir. 2011)). Since Rimmer did not challenge the government’s making of a good-
faith search, the district court focused on the applicability of FOIA exemptions to the
redacted material in the 539 disputed pages.
Ibid. The government based its redactions
on three FOIA exemptions—6, 7(C), and 7(D)—which the district court summarized as
follows:
Exemption 6 states that the agency’s FOIA disclosure obligations do not
extend to “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). Exemption 7 applies to certain “records
or information compiled for law enforcement purposes.” 5 U.S.C.
§ 552(b)(7). Specifically, Exemption 7(C) protects from disclosure [of]
information in law enforcement records that “could reasonably be
expected to constitute an unwarranted invasion of personal privacy.”
5 U.S.C. § 552(b)(7)(C). And, Exemption 7(D) protects from disclosure
[of] information in such records that “could reasonably be expected to
disclose the identity of a confidential source,” along with “information
furnished by a confidential source” during a criminal investigation.
5 U.S.C. § 552(b)(7)(D).
Id. at *5. Observing that “all of the redacted records were compiled for law enforcement
purposes,” the court then proceeded to evaluate almost all the redactions under
Exemption 7(C), which “provides broader privacy protections than Exemption 6.” Ibid.4
The district court evaluated the applicability of Exemption 7(C) under the
balancing test laid out in United States Department of Justice v. Reporters Committee
4
A few of the redactions at issue were made under Exemption 7(D), which exempts disclosures
that could reveal the identity of a confidential source. See 5 U.S.C. § 552(b)(7)(D). The confidential
sources in this case were individuals who had called a confidential Crime Stoppers hotline to provide
information relating to the Ellsworth investigation. The district court noted that Rimmer’s primary
argument in opposition to these redactions was merely that, through other investigation, he had discovered
the names of the confidential sources that the government sought to protect. Rimmer v. Holder, No. 3:10-
1106, 2011 WL 4431828, at *5 n.5 (M.D. Tenn. Sept. 22, 2011). The district court quickly disposed of
this argument by noting this circuit’s holding in Rugiero v. United States Department of Justice,
257 F.3d
534, 551 (6th Cir. 2001), that the protections of 7(D) apply even if “a confidential source is later revealed.”
No. 11-6286 Rimmer v. Holder, et al. Page 8
for Freedom of Press,
489 U.S. 749, 762 (1989), explaining that the privacy interests
that a FOIA disclosure of law-enforcement records would compromise must be weighed
against the public interest in the disclosure. Rimmer v. Holder, No. 3:10-1106,
2011 WL
4431828, at *5 (M.D. Tenn. Sept. 22, 2011). In addition, the court explained that
because “the [private] information at issue was ‘compiled through the power of the
state,’ . . . [it] should only be disclosed where the requester shows that the disclosure
seeks to advance a ‘significant’ public interest and . . . will ‘likely’ actually advance that
interest.”
Ibid. (quoting Nat’l Archives & Records Admin. v. Favish,
541 U.S. 157, 172
(2004)).
The district court began the balancing analysis by noting that the redacted
information was primarily the names and other identifying information of:
(1) FBI special agents and support personnel; (2) third parties who
provided information to law enforcement; (3) state or local law
enforcement personnel; (4) third parties merely mentioned; (5) third
parties with criminal records/rap sheets; (6) third parties of investigative
interest; (7) non-FBI federal government personnel; and (8) third party
victims.
Ibid. The court held that significant privacy interests would be compromised by
releasing the personal information of these individuals, as disclosure would subject them
to the negative connotation of being linked with a criminal investigation, expose them
to the risk of harassment or criticism, and create a chilling effect on those who might be
inclined to provide information to law enforcement in the future.
Id. at *6. The court
also observed that its conclusions were “well supported” by this circuit’s existing case
law.
Id. at *5 (citing Kiraly v. FBI,
728 F.2d 273, 277 (6th Cir. 1984)).
The district court then went on to evaluate the public interest in disclosure. It
dispensed with Rimmer’s first alleged public interest—that “unredacted production
would be a tool to aid him in his underlying state collateral review proceedings”—by
noting numerous cases from this circuit that have found such private advantage to be an
illegitimate purpose under FOIA, one that confuses the goals of FOIA with those of civil
discovery. Id. at *7. The court acknowledged that Rimmer’s second public interest,
No. 11-6286 Rimmer v. Holder, et al. Page 9
“shedding light on how the federal agencies operate and whether they could work to
imprison someone illegitimately,” was undoubtedly valid, but held that the disclosures
Rimmer sought would not likely serve that interest.
Ibid. Based on its in camera
review, the district court found:
[W]hat is redacted is names and identifying information, primarily of
those who provided information to the police during the underlying
investigation. The Government is not, for instance, attempting to
withhold material that indicates which documents were (or were not)
timely disclosed to the defendant or that indicates that a witness perjured
himself at trial. In short, the plaintiff has identified strong public
interests, but he has not connected those interests to the material actually
redacted.
Id. at *7 n.8. The district court buttressed this conclusion with the Supreme Court’s
language in Reporters Committee, indicating that the public purpose of “‘shed[ding]
light on an agency’s performance of its statutory duties . . . is not fostered by disclosure
of information about private citizens that is accumulated in various government files but
that reveals little or nothing about an agency’s own conduct.’”
Id. at *7 (quoting
Reporters
Comm., 489 U.S. at 772). Thus, because there was no significant
countervailing public interest that disclosure would likely serve, the district court held
that redaction under 7(C) was appropriate.
The district court closed by noting that while there were “a handful of places”
where the government redacted information that was not “facially ‘identifying,’” the
government was simply “being extremely ‘careful’ to redact information that could, if
certain connections between individuals were made, arguably be used to identify
particular individuals who provided information to law enforcement.” Id. at *8. The
court concluded:
[Based on] the heightened privacy protections that are owed to these
individuals who willingly provide potentially incriminating information
to law enforcement and the fact that none of the information redacted
sheds light on how the Government entity actually performs its functions
or suggests that the government agency has been involved in imprisoning
an innocent individual, the redactions are not inappropriate.
No. 11-6286 Rimmer v. Holder, et al. Page 10
Ibid.
Rimmer appealed both the district court’s dismissal of his APA and mandamus
claims and its grant of summary judgment of on his FOIA claim.
II
A
As a preliminary issue, the government contends that “Rimmer does not
challenge the district court’s FOIA decision on appeal, and accordingly has waived any
argument that he is entitled to additional information under FOIA.” Gov’t. Br. at 11.
While it is true that “an issue that is not raised in a party’s briefs may generally be
deemed waived,” Bi Feng Liu v. Holder, 560 F.3d 485, 489 n.4 (6th Cir. 2009), Rimmer
has put forward a sufficiently concrete argument—that “although the right to disclosure
is more limited under FOIA then [sic] the APA and mandamus claims, Mr. Rimmer
should be entitled to disclosure of the requested information under the specific facts
presented in the district court given precedents in this Court,” Rimmer Br. at 27—to
challenge the district court’s FOIA determination and defeat the government’s claim of
waiver.
B
Rimmer’s FOIA claim was properly denied. Rimmer brought this claim pursuant
to FOIA § 552(a)(4)(b), which gives a district court the authority “to enjoin the agency
from withholding agency records and to order the production of any agency records
improperly withheld from the complainant.” 5 U.S.C. § 552(a)(4)(B)). In the instant
case, the FBI, after negotiations with Rimmer, released all documents in its possession
pertaining to Rimmer. The only action that Rimmer challenges is the FBI’s decision to
redact certain identifying information from 539 of the 786 pages that were ultimately
released. The district court granted summary judgment for the government, relying
primarily on exemption 7(C) to uphold the redactions. On appeal, Rimmer argues that
“under the specific facts presented in the district court” and “given the precedents in this
No. 11-6286 Rimmer v. Holder, et al. Page 11
Court,” he is entitled under FOIA to unredacted versions of the documents he seeks.
Rimmer Br. at 27.
Section 552(a)(4)(B) of FOIA states that a district court should review an
agency’s denial of a FOIA request de novo. 5 U.S.C. § 552(a)(4)(B); see also Rugiero,
257 F.3d 534, 543 (6th Cir. 2001). In addition, “[t]he propriety of a district court’s grant
of summary judgment in a FOIA proceeding is similarly reviewed de novo on appeal.”
Abraham & Rose, P.L.C. v. United States,
138 F.3d 1075, 1078 (6th Cir. 1998).
FOIA begins with the baseline rule that federal agencies must respond promptly
to requests for records that contain a reasonable description of those records and are
made in accordance with published rules and procedures. 5 U.S.C. § 552(a)(3). Only
if one of the enumerated FOIA exemptions applies may an agency withhold requested
records, id. § 552(d), and even then, the exemptions are to be narrowly construed, Dep’t
of the Interior v. Klamath Water Users Protective Ass’n,
532 U.S. 1, 8 (2001). This
reflects FOIA’s “general philosophy of full agency disclosure unless information is
exempted under clearly delineated statutory language.” Dep’t of the Air Force v. Rose,
425 U.S. 352, 360–61 (1976) (internal quotation marks omitted).
As most challenges to an agency’s use of a FOIA exemption involve purely legal
questions, district courts typically resolve these cases on summary judgment. Rugiero,
257 F.3d at 544. To prevail on summary judgment, the government must show that it
made a “good faith effort to conduct a search for the requested records using methods
reasonably expected to produce the requested information” and that any withholding of
materials was authorized within a statutory exemption.
CareToLove, 631 F.3d at 340.
As the district court properly noted, Rimmer did not dispute that the FBI conducted a
good-faith search for records pertaining to him, but only challenged the redactions it
made within his relevant file. Thus, on summary judgment, the district court addressed
only the applicability of the government’s claimed exemptions.
As this court has noted in the past, the resolution of an exemption’s applicability
at the summary-judgment phase “creates a situation in which a plaintiff must argue that
the agency’s withholdings exceed the scope of the statute, although only the agency is
No. 11-6286 Rimmer v. Holder, et al. Page 12
in a position to know whether it has complied with the FOIA . . . .” Rugiero, 257 F.3d
at 544. Ordinarily, an agency will offer detailed affidavits, rather than the requested
documents themselves, to justify its decision to withhold information, and these
affidavits are entitled to a presumption of good faith absent evidence to the contrary.
Jones v. FBI,
41 F.3d 238, 242–43 (6th Cir. 1994). If bad faith on the part of the agency
is shown, however, a district court may conduct an in camera review of any documents
withheld or redacted. U.S.C. § 552(a)(4)(B); see also
Jones, 41 F.3d at 242–43.
In this case, the government itself moved to submit unredacted copies of the
contested documents to the district court for in camera review. After a conference in
which all parties agreed to this course of action, the district court granted the motion and
undertook an in camera review of the documents at issue to determine the applicability
of the government’s claimed exemptions.
C
The government based its redactions on FOIA exemptions 6, 7(C), and 7(D),
which allow an agency to withhold disclosure of:
(6) personnel and medical files and similar files the disclosure of which
would constitute a clearly unwarranted invasion of personal privacy;
(7) records or information compiled for law enforcement purposes, but
only to the extent that the production of such law enforcement records or
information . . . (C) could reasonably be expected to constitute an
unwarranted invasion of personal privacy, [or] (D) could reasonably be
expected to disclose the identity of a confidential source, including a
State, local, or foreign agency or authority or any private institution
which furnished information on a confidential basis, and, in the case of
a record or information compiled by criminal law enforcement authority
in the course of a criminal investigation or by an agency conducting a
lawful national security intelligence investigation, information furnished
by a confidential source . . . .
5 U.S.C. §§ 552(b)(6), (b)(7)(C), (b)(7)(D). The district court began its analysis of these
exemptions by noting that “Exemption 7(C) provides broader privacy protections than
Exemption 6.” Rimmer v. Holder, No. 3:10-1106, 2011 WL 4431828, at *5 (M.D. Tenn.
Sept. 22, 2011). Accordingly, it grouped the redactions that the government based on
No. 11-6286 Rimmer v. Holder, et al. Page 13
Exemption 6 with the redactions based on Exemption 7(C) and analyzed them all under
the more protective terms of 7(C).
Ibid.
We agree with this strategy. While Exemption 7(C) has a threshold requirement
that the documents at issue be compiled for law enforcement purposes, once this
prerequisite is met, Exemption 7(C) allows an agency to withhold a broader range of
information than Exemption 6. See Reporters
Comm., 489 U.S. at 756. As the Supreme
Court has observed, not only does “Exemption 6 require[] that the invasion of privacy
be ‘clearly unwarranted,’ [while] the adverb ‘clearly’ is omitted from Exemption 7(C),”
but “Exemption 6 [also] refers to disclosures that ‘would constitute’ an invasion of
privacy, [while] Exemption 7(C) encompasses any disclosure that ‘could reasonably be
expected to constitute’ such an invasion.”
Ibid. Because it is undisputed that all the
redactions at issue were contained in FBI records compiled for the purpose of law
enforcement, the district court correctly applied the more protective standards of
Exemption 7(C) to both the government’s Exemption 6 and Exemption 7(C) redactions.
We therefore will travel the same path, first analyzing the propriety of the Exemption 6
and 7(C) redactions, all under the rubric of 7(C), and then moving to those redactions
made under Exemption 7(D).
D
In determining whether information contained in law-enforcement records “could
reasonably be expected to constitute an unwarranted invasion of personal privacy,”
5 U.S.C. § 522(b)(7)(C), a court must “balance the privacy interest” in withholding the
redacted information with the “public interest in [its] release.” Reporters Comm.,
489 U.S. at 762; see also
Kiraly, 728 F.2d at 277 (“The first inquiry is whether public
access to the information sought constitutes an invasion of privacy. If there is such an
invasion, the question becomes whether the invasion is justified by any countervailing
public benefit from its disclosure.”). In addition, the Supreme Court has clarified that
the public interest in disclosing the information must be “significant” in order to
outweigh any privacy interests implicated. Nat’l
Archives, 541 U.S. at 172.
No. 11-6286 Rimmer v. Holder, et al. Page 14
In this case, the district court, after its in camera review of the challenged
documents, indicated that the information redacted under Exemption 7(C) consisted of
names and other identifying information of various individuals associated with the
investigation of Ellsworth’s murder. This finding is not disputed. With respect to the
privacy interests involved in preventing disclosure of such information, this circuit,
along with many others, has recognized that “people who were investigated for
suspected criminal activity or who were otherwise mentioned therein . . . could [be]
subject[ed] . . . to embarrassment, harassment and even physical danger.” Kiraly, 728
F.2d at 277 (internal quotation marks omitted); see also, e.g., Fitzgibbon v. CIA,
911
F.2d 755, 767 (D.C. Cir. 1990) (asserting that “the mention of an individual’s name in
a law enforcement file will engender comment and speculation and carries a stigmatizing
connotation” (internal quotation marks omitted)); Librach v. FBI,
587 F.2d 372, 373 (8th
Cir. 1978) (holding that the release of third-party personal information contained in law
enforcement records was “a clearly unwarranted invasion of personal privacy”). This
privacy interest exists not only for those who are suspects in an investigation, but also
for third parties mentioned in the documents, such as witnesses, informants, and
investigators. Sussman v. U.S. Marshals Serv.,
494 F.3d 1106, 1115 (D.C. Cir. 2007)
(“[T]he exemption protects the privacy interests of all persons mentioned in law
enforcement records, whether they be investigators, suspects, witnesses, or
informants.”); Wood v. FBI,
432 F.3d 78, 88 (2d Cir. 2005).
To outweigh these privacy concerns, Rimmer must show a “significant”
countervailing public benefit in releasing the personal information that the FBI redacted.
In determining what interests are legitimately “public,” the Supreme Court has focused
on the primary purpose for which FOIA was enacted, i.e., “to open agency action to the
light of public scrutiny.” Reporters Comm., 489 U.S. at 772 (internal quotation marks
omitted). “Whether disclosure of a private document under Exemption 7(C) is warranted
must turn on the nature of the requested document and its relationship to [this] basic
purpose of the Freedom of Information Act . . . rather than on the particular purpose for
which the document is being requested.” Ibid (internal quotation marks omitted). In
No. 11-6286 Rimmer v. Holder, et al. Page 15
other words, there must be a significant public interest in shedding light on the actions
of the agency from which documents are being sought.
Furthermore, even when a significant public interest exists, the Supreme Court
has also required a showing that disclosure of 7(C) information will likely serve that
public interest:
Where the privacy concerns addressed by Exemption 7(C) are present,
the exemption requires the person requesting the information to establish
a sufficient reason for the disclosure. First, the citizen must show that
the public interest sought to be advanced is a significant one, an interest
more specific than having the information for its own sake. Second, the
citizen must show the information is likely to advance that interest.
Otherwise, the invasion of privacy is unwarranted.
Nat’l Archives, 541 U.S. at 172. In sum, the requester must not only present an interest
that is both public and significant, but also demonstrate that disclosure of the information
sought will further that interest.
Before the district court, Rimmer pressed his interest in “investigating and
presenting in state court exculpatory evidence developed by the state and federal
government,” Rimmer Resp. to Gov’t’s Redactions at 6, an interest the district court
properly rejected as “illegitimate.” This court has made clear that the purpose of FOIA
is not to act as a “substitute for the normal process of discovery in civil and criminal
cases” and will not turn the purpose of advancing private litigation into a public one.
Jones, 41 F.3d at 250; see also
Rugiero, 257 F.3d at 547; Fruehauf Corp. v. Thornton,
507 F.2d 1253, 1254 (6th Cir. 1974).
On appeal, Rimmer appears to abandon this argument and focus on the second
countervailing public benefit that he put forward in the district court—“the revelation
of wrongdoing in the [J]ustice department.” Rimmer Br. at 29–30. While it is true that
the public has an interest in unearthing agency misconduct—indeed, as mentioned
above, the Supreme Court has emphasized that the core purpose of FOIA is to “shed
light on an agency’s performance of its statutory duties,” Reporters Comm., 489 U.S. at
773—more than bare allegations of federal malfeasance are required before the public
No. 11-6286 Rimmer v. Holder, et al. Page 16
interest becomes significant enough to overcome the privacy concerns embodied in
Exemption 7(C), Nat’l
Archives, 541 U.S. at 172. The Supreme Court has indicated that
for a public interest to be significant enough to tip the scales towards disclosure, a FOIA
requester must, at a minimum, “produce evidence that would warrant a belief by a
reasonable person that the alleged Government impropriety might have occurred.” Ibid.5
In addition, we note that FOIA is concerned only with shedding light on
misconduct of the federal government, not state governments. As numerous sister
circuits have noted, “it is beyond question that FOIA applies only to federal and not to
state agencies.” Grand Cent. P’ship v. Cuomo, 166 F.3d 473, 484 (2d Cir. 1999); see
also Philip Morris, Inc. v. Harshbarger,
122 F.3d 58, 83 (1st Cir. 1997) (“FOIA . . .
applies only to federal executive branch agencies.”); Brown v. Kelly, No. 93–5222,
1994
WL 36144, at *1 (D.C. Cir. Jan. 27, 1994) ( per curiam ) (holding that FOIA does not
apply to state agencies); St. Michael’s Convalescent Hosp. v. California,
643 F.2d 1369,
1373 (9th Cir. 1981) (stating that the definition of “agency” under FOIA “does not
encompass state agencies or bodies”); Johnson v. Wells,
566 F.2d 1016, 1018 (5th Cir.
1978) (holding that the state board of parole was not an agency within the meaning of
FOIA). Accordingly, we agree with the Third Circuit that “just as there is no
FOIA-recognized public interest in discovering evidence in federal government files of
a private party’s violation of the law, see Reporters
Comm., 489 U.S. at 774, there is no
FOIA-recognized public interest in discovering wrongdoing by a state agency.”
Landano v. U.S. Dep’t of Justice,
956 F.2d 422, 430 (3d Cir. 1992), vacated on other
grounds,
508 U.S. 165 (1993).
5
Rimmer cites this court’s opinion in Jones v. FBI, 41 F.3d at 242–43, for the proposition that
we should “include[] in the balance the issue of bad faith or illegality regarding the underlying activities
which generated the documents.” Rimmer Br. at 28. To the extent that Rimmer is simply arguing for this
court to treat the revelation of agency actions taken in bad faith as a “significant public purpose,” we agree,
as did the Supreme Court in National Archives. But, to the extent that Rimmer reads Jones as holding that,
in the presence of agency bad faith, the bar for disclosure of 7(C) material is somehow lower, we must
disagree. Jones’s discussion of agency bad faith was brought up in the context of whether the agency
should be required to submit its records to the district court for an in camera review,
see supra Section
II.B, and had nothing to do with the actual applicability of the FOIA exemptions.
Jones, 41 F.3d at
242–43. Given that the government willingly submitted the documents at issue to the district court—in
fact, the government was the party that moved for in camera review—Jones’s discussion of bad faith is
irrelevant in our case.
No. 11-6286 Rimmer v. Holder, et al. Page 17
In this case, Rimmer argues that the FBI withheld and is still withholding
exculpatory information relating to his conviction for Ellsworth’s murder. It is true that,
if the federal government had prosecuted Rimmer, it would have had an obligation under
Brady v. Maryland, 373 U.S. 83 (1963), to provide him with any exculpatory
information in its possession. Here, however, the FBI declined to prosecute Rimmer,
who was prosecuted by Tennessee only. Thus, while the state may have breached its
Brady obligations by failing to provide Rimmer with evidence of Darnell’s FBI
interview and photo-lineup identification, Rimmer presents no evidence that the FBI had
any similar obligation.
Nor does Rimmer provide evidence showing that the FBI somehow used its
status as a joint investigator to shield exculpatory information from Rimmer. In fact,
rather than segregate the evidence of Darnell’s identification in its own files, the FBI
turned over this evidence to the Memphis Police, thus ensuring that it would be subject
to Brady in the event of a state prosecution. In short, Rimmer has produced no evidence
“that would warrant a belief by a reasonable person that the alleged . . . impropriety [by
the FBI] might have occurred,” Nat’l Archives, 541 U.S. at 174, and thus has failed to
allege a significant public interest that would warrant disclosure of the FBI’s Exemption
7(C) redactions.
Even if Rimmer had made plausible allegations of FBI misconduct and thus
established a significant public purpose, his FOIA challenge would fail, as he cannot
show that the information he seeks would likely advance the public interest in revealing
agency misconduct. During its in camera review, the district court determined that the
FBI’s contested 7(C) redactions covered only identifying information—a finding that is
uncontested on appeal.6 Before the district court, Rimmer claimed that he needed this
information to “fully develop his factual proof on these claims in court proceedings.”
6
The district court did find that there were “a handful of places” where redactions were made in
reliance on Exemption 7(C) in which the information was not “facially ‘identifying.’” Rimmer v. Holder,
No. 3:10-1106, 2011 WL 4431828, at *8 (M.D. Tenn. Sept. 22, 2011). It stated that these redactions still
fit under Exemption 7(C) because the information they shielded could, “if certain connections between
individuals were made,” identify “particular individuals who provided information to law enforcement.”
Ibid. Rimmer has not contested this specific finding on appeal.
No. 11-6286 Rimmer v. Holder, et al. Page 18
Rimmer Resp. to Gov’t’s Redactions at 6. Yet in the same breath, he admitted that he
had “obtained numerous documents through open records acts which identify most, if
not all, of the state law enforcement officers involved in his case” and that he was
“aware of the Assistant United States Attorneys who represented the government in the
joint investigation and intended prosecution.”
Id. at 6–7. Nevertheless, Rimmer claimed
that he did not know exactly “who in the FBI investigated [Ellsworth’s] disappearance”
and thus “need[ed] un-redacted documents in order to fully investigate.”
Id. at 7.
At bottom, even if a significant public interest were actually to exist, the
information Rimmer seeks does not serve that interest. Rimmer acknowledges that he
is already in possession of most of the information that he now seeks. Even in the few
isolated instances where Rimmer might not know exactly to whom a redaction referred,
exposure of this information would not help the public to discern whether the FBI was
acting corruptly. There is no redaction of material describing FBI efforts to hide
information, an FBI plan to “game” the joint investigation so as to sequester information
within the non-prosecuting agency, or any other actual action taken by the FBI; all that
exists is the deletion of information that would identify those who were mentioned in the
Ellsworth investigation file. As the district court put it:
[W]hat is redacted is names and identifying information, primarily of
those who provided information to the police during the underlying
investigation. The Government is not, for instance, attempting to
withhold material that indicates which documents were (or were not)
timely disclosed to the defendant or that indicates that a witness perjured
himself at trial. In short, the plaintiff . . . has not connected [any public]
interests to the material actually redacted.
Rimmer v. Holder, No. 3:10-1106, 2011 WL 4431828, at *7 n.8 (M.D. Tenn. Sept. 22,
2011).
Rimmer also cites Roth v. U.S. Dep’t of Justice, 642 F.3d 1161, 1176 (D.C. Cir.
2011), for the proposition that when conducting the Exemption 7(C) balancing test, some
sort of “heightened scrutiny,” perhaps a thumb on the scale toward a defendant, is
“warranted in a capital murder case in which the government possesses information
suggesting a possible wrongful conviction and death sentence.” Rimmer Br. at 31. But
No. 11-6286 Rimmer v. Holder, et al. Page 19
Roth is inapposite, as it dealt with review of the FBI’s use of a Glomar response—an
answer that declines to indicate whether law enforcement records relating to the
individuals specified in a FOIA request even exist7—rather than its use of a FOIA
exemption to merely redact content.
Roth, 642 F.3d at 1166. The Roth court did not
review the FBI’s use of FOIA exemptions to protect content from disclosure once the
existence of records had been confirmed, and the Roth court even noted that once the
FBI disclosed whether records actually existed, the content of those records might “well
fall within one or more FOIA exemptions.”
Id. at 1182.
In conclusion, the district court correctly upheld the FBI’s Exemption 7(C)
redactions, as well as the Exemption 6 redactions with which they were appropriately
grouped.
E
Turning to the FBI’s relatively few invocations of Exemption 7(D), which
protects information that “could reasonably be expected to disclose the identity of a
confidential source,” 5 U.S.C. § 522(b)(7)(D), the district court found that Rimmer
provided “little challenge” to these redactions other than to assert that “through other
investigation, he has become aware of the names of the individuals that the [FBI sought]
to protect through redaction,” Rimmer v. Holder, No. 3:10-1106, 2011 WL 4431828, at
*5 n.5 (M.D. Tenn. Sept. 22, 2011). Having reviewed Rimmer’s filings in the district
court, we agree.
In this case, the confidential sources that the FBI redacted under 7(D) were
individuals who had called a confidential Crime Stoppers hotline to provide information
relating to the Ellsworth investigation. While Rimmer never expressly mentioned
Exemption 7(D) or the redactions made thereunder, he did at least refer to “confidential
sources,” arguing that “concerns about the personal privacy of ‘confidential sources’ are
not present since Plaintiff, through his investigation, already knows the identity of most,
7
See generally Wilner v. Nat’l Sec. Agency, 592 F.3d 60, 67–68 (2d Cir. 2009) (explaining the
historical origin and analytical framework of the Glomar doctrine).
No. 11-6286 Rimmer v. Holder, et al. Page 20
if not all, the redacted names which would fall into this category and many of them
testified at trial.” Rimmer Resp. to Gov’t’s Redactions at 2.
On appeal, Rimmer does not press this argument and makes no express reference
to the Exemption 7(D) redactions, instead focusing his efforts on the balancing test
applicable to Exemption 7(C). Nonetheless, we note that the district court correctly
dispensed with Rimmer’s claim that his personal knowledge of the identity of most of
the government’s confidential sources neutralized the personal-privacy protection
afforded them under Exemption 7(D). In this circuit, it is well-settled that “[i]f a
confidential source is later revealed, we nonetheless restrict public access to documents
under [Exemption 7(D)] so long as the informant and the agency intended the identity
of the source to remain undisclosed at the time the agency compiled the information.”
Rugiero, 257 F.3d at 551. As it is undisputed that both the FBI and the individuals
calling the Crime Stoppers hotline intended that the callers’ identities remain
undisclosed at the time of the calls, Rimmer’s argument, even if it were reasserted, fails.
III
Rimmer also argues that the APA affords him a separate avenue to attack the
FBI’s refusal to provide him with unredacted records. The district court dismissed
Rimmer’s APA claim, holding that it was barred by § 704 of the APA. We review the
district court’s dismissal of an action for lack of jurisdiction de novo. Haio v. INS, 199
F.3d 302, 304 (6th Cir. 1999).
On appeal, Rimmer claims that “[t]he combined effect of the district court’s
dismissal of [his] APA and mandamus claim and summary judgment for the government
in the FOIA claim” is to deprive him of “exculpatory evidence” contrary to notions of
“due process, and [the right] to be free from cruel and unusual punishment.” Rimmer
Br. at 23. Essentially, Rimmer argues that because he cannot obtain unredacted copies
of the requested documents through FOIA, “due process” and his right “to be free from
cruel and unusual punishment,” ibid., should permit him to acquire the redacted
information either via an APA claim or a writ of mandamus.
No. 11-6286 Rimmer v. Holder, et al. Page 21
Section 704, on which the district court relied to dismiss Rimmer’s APA claim,
limits the federal government’s waiver of sovereign immunity and the attendant review
of agency actions under the APA to situations in which there is “no other adequate
remedy in a court.” 5 U.S.C. § 704; see also Beamon v. Brown, 125 F.3d 965, 967
(6th Cir. 1997) (holding that “the APA does not express the U.S. government’s consent
to suit if an alternate adequate remedy is available to review a final agency action”).
Rimmer argues that the district court’s ruling against his FOIA request demonstrates that
FOIA did not provide him with an alternate adequate remedy. Rimmer Br. at 25.
Rimmer’s argument is misplaced, however, and is premised on a
misunderstanding of the term “adequate remedy.” Adequacy does not depend on a
party’s ability to prevail on the merits—if it did, every party that lost a non-APA-based
appeal of an agency decision would be entitled to a duplicative APA claim, precisely the
outcome that § 704 seeks to prevent. As other courts have noted, for a cause of action
to provide an adequate remedy in the § 704 context, a court need only be able to provide
“relief of the same genre” to the party seeking redress, but not necessarily “relief
identical to relief under the APA.” Garcia v. Vilsack, 563 F.3d 519, 522 (D.C. Cir.
2009) (internal quotation marks omitted). Furthermore, relief will be deemed adequate
“where a statute affords an opportunity for de novo district-court review of the agency
action.”
Id. at 522–23 (internal quotation marks omitted).
In this case, the district court’s ability to conduct a de novo review of Rimmer’s
FOIA request and, if it were to rule in Rimmer’s favor, to order relief identical to that
provided under the APA, i.e., production of the unredacted documents Rimmer seeks,
clearly provides an alternate adequate remedy in court and thus triggers § 704’s bar on
claims brought under the APA. Several sister circuits have reached a similar conclusion,
see Central Platte Natural Res. Dist. v. USDA, 643 F.3d 1142, 1148 (8th Cir. 2011);
Walsh v. Dep’t of Veterans Affairs,
400 F.3d 535, 537–38 (7th Cir. 2005), and we now
expressly join their ranks.
This outcome is especially appropriate because Rimmer could have obtained
review under the APA rather than FOIA if, instead of seeking the documents at issue
No. 11-6286 Rimmer v. Holder, et al. Page 22
through FOIA channels, he had pursued a Touhy request, a common tool for obtaining
federal documents during state-court discovery. The District of Columbia Circuit
explained the longstanding Touhy framework as follows:
When a litigant seeks to obtain documents from a non-party federal
governmental agency, the procedure varies depending on whether the
underlying litigation is in federal or in state court. In state court the
federal government is shielded by sovereign immunity, which prevents
the state court from enforcing a subpoena. . . . Moreover, a court cannot
enforce a subpoena against an employee of the federal governmental
agency when the agency has validly enacted a regulation . . . that
withdraws from employees the power to produce documents. . . . Thus,
a state-court litigant must request the documents from the federal agency
pursuant to the agency’s [Touhy] regulations . . . . If the agency refuses
to produce the requested documents, the sole remedy for the state-court
litigant is to file a collateral action in federal court under the APA.
Houston Bus. Journal, Inc. v. Office of the Comptroller of the Currency, 86 F.3d 1208,
1211–12 (D.C. Cir. 1996) (emphasis added). The Justice Department, pursuant to
5 U.S.C. § 301, commonly known as the “Housekeeping Statute,” has adopted Touhy
regulations restricting the ability of department employees to produce documents, see
28 C.F.R. § 16.22(a), and also outlining the procedures one must follow to request
documents and the factors officials should consider in determining whether to release
them, see 28 C.F.R. §§ 16.24–16.29; see also United States v. Williams,
170 F.3d 431,
433 (4th Cir. 1999) (explaining these regulations and the need to follow them when
seeking information from the Department of Justice). Had Rimmer, rather than
employing FOIA, made a Touhy request pursuant to these regulations and been denied,
he would now be able to seek precisely the remedy he now demands: review under the
APA. In fact, the government conceded at oral argument that if he so desires, Rimmer
is still able to submit a Touhy request and pursue the information at issue through this
route. At this time, however, Rimmer has completely neglected the Touhy framework.8
8
Rimmer also argues that Tennessee Assistant District Attorney General John Campbell’s offer
during the Tennessee post-conviction proceedings to negotiate with the FBI for production of the
documents at issue excuses his failure to make a Touhy request. Rimmer Reply Br. at 4–5. Rimmer seems
to allege that the federal government made some sort of “promise” to cooperate with the state prosecutor,
id. at 7, and that, given this promise, it can no longer “renege[]” and require him to make a “futile,
redundant Touhy request,”
id. at 5. Yet the record suggests only that Assistant United States Attorney
Tony Arvin was present in the courtroom when the Tennessee state court approved Campbell’s proposal
No. 11-6286 Rimmer v. Holder, et al. Page 23
The cases that Rimmer cites to support his request for an APA remedy actually
buttress our observation that, absent a Touhy request, Rimmer cannot point to a final
agency action that warrants APA review. In Williams, 170 F.3d at 434, the Fourth
Circuit did indeed hold that a state criminal defendant “may assert his constitutional
claim to the investigative information before the district court, which possesses authority
under the APA to compel the law enforcement agency to produce the requested
information in appropriate cases,” but only if that defendant was “aggrieved by the
response of a federal law enforcement agency made under its regulations.” (emphasis
added). In other words, APA review was available only if the criminal defendant made
a Touhy request pursuant to an agency’s Touhy regulations. The Fourth Circuit reached
this conclusion even though the defendant argued “that he need not have complied with
the Justice Department’s regulations, because the FBI was assisting state authorities in
their investigation of the state crimes for which he was ultimately indicted”—the exact
same situation in which Rimmer currently finds himself.
Ibid.
Similarly, another case Rimmer cites, In re Boeh,
25 F.3d 761, 767 (9th Cir.
1994), held that an APA claim was the proper method for challenging an agency’s
refusal to produce information, but only in reference to the Department of Justice’s
denial of a Touhy request. And in Rimmer’s final case, Johnson v. Reno,
92 F. Supp. 2d
993, (N.D. Cal. 2000), the district court cited both Williams and Boeh only for the
proposition that an APA claim was the appropriate vehicle for challenging an agency’s
denial of a request for information “‘made under its regulations.’” Ibid. (quoting
Williams, 170 F.3d at 434). While the terse opinion in Johnson does not reveal whether
the plaintiff in that case was seeking information through a Touhy request, the court’s
to negotiate with the federal government and that soon after, Campbell contacted Arvin to negotiate the
release of Rimmer’s file. After their discussion, Arvin contacted the FBI to inquire about retrieval of the
documents at issue and their potential release to Rimmer, but a few months later, Arvin, along with FBI
Special Agent David Lee, again met with Campbell, at which time Lee stated that the FBI would not
release the relevant file to the State. There is no indication in the record of whether Lee or another
individual higher up the FBI’s chain of command made this determination. That said, there is nothing to
suggest that the government either made or broke any kind of “promise” or that Rimmer’s making a Touhy
request at this stage in the litigation would be “futile.” In fact, at oral argument the government
specifically conceded that Rimmer could pursue such a request. And because, after oral argument, the
Tennessee courts overturned Rimmer’s conviction and granted him a new trial, a Touhy request seems even
more practical at this time.
No. 11-6286 Rimmer v. Holder, et al. Page 24
citation to Williams and Boeh would support this conclusion. In any event, it is clear that
the district court in Johnson was not using the APA to review the denial of a FOIA
request. And to the extent that Johnson could be read as allowing an independent APA
claim to compel an agency to produce information without first submitting a Touhy
request, we find it unpersuasive.
In short, Williams and Boeh did not hold that the APA provided a stand-alone
remedy to compel the production of information held by the government. Rather, they
addressed situations in which APA review was applied to a Touhy request. The Johnson
court seems likely to have reached the same conclusion, though the ambiguity in its
posture prevents us from knowing for certain whether a Touhy request was involved.
Accordingly, we hold that these precedents provide no authority for the proposition that,
absent a Touhy request, the APA creates an independent avenue for reviewing an
agency’s denial of a request for information. The district court properly found that FOIA
provided Rimmer with an adequate remedy in court, and thus Rimmer’s APA claim is
barred by 5 U.S.C. § 704.
IV
Finally, Rimmer argues that he should be able to seek unredacted versions of the
FBI’s documents by petitioning for a writ of mandamus. The district court dismissed
Rimmer’s mandamus claim, holding that it was barred by our circuit’s three-part test that
requires, inter alia, that the party seeking mandamus has no other adequate remedy
available. As with Rimmer’s APA claim, we review the district court’s dismissal of an
action for lack of jurisdiction de novo. Haio, 199 F.3d at 304.
On appeal, Rimmer does not address the district court’s finding that an adequate
remedy is available to him, instead focusing only on his assertion that “the government
[has] a clear ethical and constitutional duty to act in this case.” Rimmer Br. at 25. But
our case law clearly indicates that “[m]andamus is available only if: (1) the plaintiff has
a clear right to relief; (2) the defendant has a clear duty to act; and (3) there is no other
adequate remedy available to the plaintiff.” Carson, 633 F.3d at 491 (internal quotation
marks omitted). As discussed with reference to Rimmer’s APA claim,
see supra Part
No. 11-6286 Rimmer v. Holder, et al. Page 25
III, not only does FOIA provide Rimmer with an adequate remedy to seek unredacted
production of the documents at issue, but so does the Touhy framework, should Rimmer
choose it pursue it. As Rimmer offers no argument to suggest otherwise, his mandamus
claim fails the aforementioned three-part test.
V
Rimmer’s FOIA appeal was properly denied, as the redacted information he
seeks is protected by FOIA Exemption 7(C) or 7(D). Rimmer’s APA and mandamus
claims are precluded by the existence of an alternate adequate remedy and thus were
properly dismissed. For the forgoing reasons, we AFFIRM the judgment of the district
court.
