E. Schoenberg v. Fbi

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 9, 2020
• Docket: 19-55696
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION SEP 9 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

E. RANDOL SCHOENBERG, No. 19-55696

Plaintiff-Appellant, D.C. No. 2:18-cv-01738-JAK-AGR v.

FEDERAL BUREAU OF MEMORANDUM* INVESTIGATION,

Defendant-Appellee.

Appeal from the United States District Court for the Central District of California John A. Kronstadt, District Judge, Presiding

Argued and Submitted May 8, 2020 Seattle, Washington

Before: KLEINFELD, W. FLETCHER, and RAWLINSON, Circuit Judges.

E. Randol Schoenberg appeals the district court’s order granting summary

judgment to the FBI under FOIA Exemption 7(C), which exempts from disclosure

certain records “to the extent that [their] production . . . could reasonably be

expected to constitute an unwarranted invasion of personal privacy.” 5 U.S.C.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. § 552(b)(7)(C). We review the district court’s grant of summary judgment de

novo. We affirm. See Animal Legal Def. Fund v. FDA, 836 F.3d 987, 990 (9th

Cir. 2016) (en banc) (per curiam).

Schoenberg sought an order directing the FBI to produce, in unredacted

form, warrant materials related to a closed investigation into former Secretary of

State Hillary Clinton. The warrant authorized the search of the laptop computer of

former Congressman Anthony Weiner, whose then-wife Huma Abedin had served

as Clinton’s Deputy Chief of Staff. A large amount of correspondence between

Abedin and Clinton was allegedly on Weiner’s laptop. In response to

Schoenberg’s FOIA requests and subsequent litigation, the FBI released a copy of

the search warrant, warrant application, supporting affidavit, and warrant return,

redacting the name of the FBI Supervisory Special Agent (“SSA”) who had signed

the search warrant and supporting affidavit. Schoenberg now seeks the name of

the SSA.

Under Supreme Court and Ninth Circuit precedent, the identity of the SSA is

protected under Exemption 7(C). First, we agree with the district court that

disclosure of the SSA’s name implicates a “nontrivial or . . . more than [] de

minimis” personal privacy interest. Tuffly v. U.S. Dep’t of Homeland Sec., 870

F.3d 1086, 1092 (9th Cir. 2017) (quoting Yonemoto v. Dep’t of Veterans Affairs,

2 686 F.3d 681, 693 (9th Cir. 2012)). “FBI agents have a legitimate interest in

keeping private matters that could conceivably subject them to annoyance or

harassment,” particularly when they were involved in “especially controversial”

investigations. Lahr v. Nat’l Transp. Safety Bd., 569 F.3d 964, 977 (9th Cir. 2009)

(quoting Hunt v. FBI, 972 F.2d 286, 288 (9th Cir. 1992)); see also Forest Serv.

Emps. for Envtl. Ethics v. U.S. Forest Serv. (“Forest Service”), 524 F.3d 1021,

1026 (9th Cir. 2008); Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157,

172–75 (2004). This interest is “stronger” where, as the district court found here,

the agent is a relatively low-ranking official. See Lahr, 569 F.3d at 977 (citing

Dobronski v. FCC, 17 F.3d 275, 280 n.4 (9th Cir. 1994)).

Second, we agree with the district court that Schoenberg failed to show that

“the public interest sought to be advanced is a significant one . . . and that the

information is likely to advance that interest.” Tuffly, 870 F.3d at 1092 (citing

Favish, 541 U.S. at 172). Schoenberg argues that the public has an interest in the

SSA’s improper behavior, but offers no evidence of official misconduct. See

Favish, 541 U.S. at 174 (requiring “more than a bare suspicion” of misconduct to

compel disclosure); Forest Serv. 524 F.3d at 1026.

We note that, in addition to the already released warrant materials, the Office

of the Inspector General of the Department of Justice has released a 568-page

3 report analyzing the government’s conduct during the investigation into Secretary

Clinton. See U.S. Dep’t of Justice Office of the Inspector General, A Review of

Various Actions by the Federal Bureau of Investigation and Department of Justice

in Advance of the 2016 Election 1 (June 2018). Given the “substantial information

already in the public domain,” Forest Serv., 524 F.3d at 1028, the “marginal

additional usefulness of the [SSA’s] name[] in exposing government misconduct”

does not outweigh the SSA’s privacy interest, Lahr, 569 F.3d at 978 (internal

quotation marks omitted). That marginal usefulness is further diminished in light

of the SSA’s position in an investigation where critical decisions regarding the

warrant materials were made by superiors. See Forest Serv., 524 F.3d at 1025–26.

AFFIRMED.