Garris v. FBI, No. 18-15416 (9th Cir. 2019)
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Unless a record is pertinent to an ongoing authorized law enforcement activity, an agency may not maintain it under section (e)(7) of the Privacy Act. After plaintiff discovered that he and the website Antiwar.com had been the subject of two separate threat assessment memos, he sought expungement of the memos under the Privacy Act.
After addressing discovery and evidentiary challenges, the Ninth Circuit held that the FBI had not met its burden of demonstrating that the 2004 memo was pertinent to an ongoing law enforcement activity and thus it must be expunged. However, the Halliburton Memo need not be expunged because it was pertinent to an ongoing law enforcement activity. In this case, the Halliburton Memo, which primarily describes security preparations for an oft-protested meeting, only incidentally includes protected First Amendment activity, and is relevant to preparations for future iterations of the annual shareholders' meeting. Accordingly, the panel affirmed in part, reversed in part, and remanded with instructions to expunge the 2004 Memo.
Court Description: Privacy Act. The panel affirmed in part and reversed in part the district court’s summary judgment in an action under the Privacy Act seeking expungement of two separate threat assessment memos created by the Federal Bureau of Investigation (“FBI”). The 2004 Memo detailed plaintiff Eric Garris’s posting of an FBI “watch list” to Antiwar.com as well as other First Amendment activity. The Halliburton Memo detailed an upcoming Halliburton shareholder’s meeting and listed Antiwar.com as part of a catalogue of sources on the meeting. The panel first addressed discovery and evidentiary challenges. First, the panel held that the district court did not abuse its discretion in granting a protective order to the FBI precluding Garris from deposing certain retired FBI agents. Second, the panel agreed in part with Garris’ contention that the district court abused its discretion by relying on a declaration from FBI Special Agent Campi. The panel held that the district court applied the wrong legal standard – by employing a Freedom of Information Act (“FOIA”) standard – when it accepted the Campi Declaration in toto, but the error was harmless as to certain parts of the declaration, which were sufficiently based on Campi’s personal knowledge. The panel held that those of Campi’s statements that went beyond matters of personal knowledge were purely GARRIS V. FBI 3 speculative and should not have been admitted. Third, the panel held that the district court did not abuse its discretion in admitting the Declaration of FBI Special Agent Bujanda. Unlike with the Campi Declaration, the district court correctly recognized that the FOIA-specific knowledge standard did not apply here, and properly applied the traditional personal knowledge standard. The panel held that unless a record is pertinent to an ongoing authorized law enforcement activity, an agency may not maintain it under section (e)(7) of the Privacy Act, 5 U.S.C. § 552(e)(7). The panel held that because the FBI had not met its burden of demonstrating that the 2004 Memo was pertinent to an ongoing law enforcement activity, it must be expunged. The panel further held that the Halliburton Memo, however, need not be expunged because it was pertinent to an ongoing law enforcement activity.
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