I. Judicial Review of Exemption 1 Withholdings

The way in which courts have interpreted Exemption 1 should guide you in contesting Exemption 1 withholdings during the administrative appeals process. In general, a court reviewing a FOIA case will determine whether the government has satisfied its burden of establishing that an exemption applies under a de novo standard of review. This means the court reviews the matter fresh, giving no weight or deference to the agency’s decision.⁶

However, in the context of Exemption 1 withholdings, courts frequently give great deference to assessments on the need to keep certain records classified contained in intelligence agency affidavits supporting the withholding of a record pursuant to a FOIA request. Agencies withholding documents can meet their burden in court of proving the applicability of claimed exemptions by affidavit, and, in the national security context, courts have granted such affidavits “substantial weight.”⁷ So long as the affidavits are “[u]ncontradicted,” “plausible,” and “show[] reasonable specificity and a logical relation to the exemption,” one court has ruled that they will be “likely to prevail.”⁸ A court will generally not second guess the agency’s withholding unless the declarations in its affidavit are contradicted by other evidence before it or there are indications that the agency classified the information in bad faith.⁹

However, despite the high deference courts grant to agency affidavits in this context, you may argue at the administrative appeals stage that any asserted reasons to withhold a requested record are insufficient to demonstrate a proper Exemption 1 withholding. Agencies must provide “‘detailed and specific’ information demonstrating both why the material has been kept secret and why such secrecy is allowed by the terms of an existing executive order” so as to “afford the requester an ample opportunity to contest, and the court to review, the soundness of the withholding.”¹⁰ The government cannot meet this burden with “conclusory affidavits that merely recite statutory standards, or are overly vague or sweeping.”¹¹ If you argue that agency reasoning is insufficiently detailed to demonstrate that the documents were properly withheld under Exemption 1, a court may agree to examine the withheld records.¹²

Understanding the way courts review Exemption 1 withholdings is important to properly crafting administrative appeals. A reviewing court has discretion to inspect the records at issue privately--outside of public view--in what is commonly referred to as an in camerainspection, and may order release of non-exempt materials.¹³ For example, after reviewingin camera records withheld by the FBI, a court held that the agency improperly redacted unclassified information from a document describing a public seminar.¹⁴

“[I]n camera inspection is particularly appropriate where . . . ‘the number of documents is relatively small.’”¹⁵ For example, a court agreed to review in camera a single classified report to Congress regarding intelligence collection under the PATRIOT Act based on “the Report’s brevity.”¹⁶ In seeking in camera review, you should highlight the low number of documents you are asking the court to review, or, where there are many classified documents at issue in the case, it may be beneficial to narrow the scope of the documents for which you seek review.

A court may also order such review “on the basis of an uneasiness, [or] on a doubt that [the judge] wants satisfied before he takes responsibility for a de novo determination.”¹⁷This “does not depend on a finding of or even tentative finding of bad faith,” but rather whether the judge believes such review is necessary to “make a responsible de novodetermination on the claims of exemption.”¹⁸ A court ordered such review after an agency failed to adequately subdivide the videos withheld “into manageable parts cross-referenced to the relevant portion of the claimed exemption” as the court had ordered, and submitted “inconsistent and confusing” descriptions of the sub-parts.¹⁹

The agency’s declarations and accompanying documents failed to provide “illumination as to the actual lengths of the video, when certain segments begin and end, or how long such subdivided segments run,” and its submission of corrections and supplements to prior submissions only “resulted in further obfuscation, making it difficult for the Court to consider the validity of” the claimed exemptions and the claimed non-segregability of the videos.²⁰

For example, the agency initially described one withheld portion of a video as containing content that would not be responsive to the FOIA request, but described that same portion as containing content that would be responsive to the request in a supplemental declaration.²¹ In light of the inadequate explanations submitted by the agency, as well as “the lack of clarity and consistency that . . . persist in those submissions” despite the fact that the court granted the agency multiple opportunities to fix its submissions, the court ordered in camera review.²²

Likewise, in addition to highlighting the vagueness of agency reasoning, you should point out any inconsistencies between the agency’s reasoning and other evidence. Additionally, if you have evidence of the agency’s bad faith in withholding the records, it should be highlighted, as a court will “likely” require in camera review “[w]here the record contains a showing of bad faith.”²³ You should keep in mind that a court’s decision to review the records in camera does not mean that you will necessarily receive the documents. It only means that the court will review the actual records as part of its consideration of the issues before making a decision, rather than simply relying on agency affidavits arguing why a record should not be disclosed.