and Submitted June 12, 2019 Anchorage, Alaska
from the United States District Court No. CV 13-02295 JSC for
the Northern District of California Jacqueline Scott Corley,
Magistrate Judge, Presiding
Vasudha Talla (argued), American Civil Liberties Union
Foundation of Northern California Inc., San Francisco,
California, for Plaintiff-Appellant.
S. Yelin (argued) and Michael S. Raab, Appellate Staff; Alex
G. Tse, United States Attorney; United States Department of
Justice, Civil Division, Washington, D.C.; for
Gershenson, Cooley LLP, Boston, Massachusetts; David Houska
and Maxwell Alderman, Cooley LLP, San Francisco, California;
for Amicus Curiae First Amendment Coalition.
Synnott, Luke X. Flynn-Fitzsimmons, William E. Freeland, and
Melina M. Memeguin Layerenza, Paul Weiss Rifkind Wharton
& Garrison LLP, New York, New York, for Amici Curiae
Knight First Amendment Institute at Columbia University,
Center for Constitutional Rights, Color of Change.
Mackey, Camille Fischer, and Adam Schwartz, Electronic
Frontier Foundation, San Francisco, California, for Amicus
Curiae Electronic Frontier Foundation.
Before: A. Wallace Tashima, William A. Fletcher, and Marsha
S. Berzon, Circuit Judges.
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
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.
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 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.
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.
Eric Anthony Garris appeals the district court's grant of
summary judgment in favor of the Federal Bureau of
Investigation ("FBI") in an action under the
Privacy Act, 5 U.S.C. § 552a. Garris discovered that he
and the website Antiwar.com had been the subject of two
separate "threat assessment" memos (collectively,
the "Memos") created by the FBI. The first, the
"2004 Memo," detailed Garris' posting of an FBI
"watch list" to Antiwar.com as well as other First
Amendment activity. The second, the "Halliburton Memo,
"detailed an upcoming Halliburton shareholder's
meeting and listed Antiwar.com as part of a catalogue of
sources on the meeting.
seeks expungement of the Memos under the Privacy Act, which
provides that federal agencies shall "maintain no record
describing how any individual exercises rights guaranteed by
the First Amendment unless . . . pertinent to and within the
scope of an authorized law enforcement activity." 5
U.S.C. § 552a(e)(7). The FBI argues that, although both
Memos describe protected First Amendment activity, the
records fall under the law enforcement activity exception.
Garris, however, contends that the law enforcement activity
exception does not apply because the investigations detailed
in both Memos have ended and the Memos are not pertinent to
an ongoing authorized law enforcement activity. The
question of whether, even if a record's creation
was permissible under the law enforcement activity exception,
the record may not be maintained under § (e)(7)
unless its maintenance is pertinent to an ongoing
law enforcement activity, is one of first impression in our
Circuit. We hold that unless a record is pertinent to an
ongoing authorized law enforcement activity, an agency may
not maintain it under § (e)(7) of the Privacy Act.
Because the FBI has not met its burden of demonstrating that
the 2004 Memo is pertinent to an ongoing law enforcement
activity, it must be expunged. The Halliburton Memo, however,
need not be, because it is pertinent to an ongoing law
and Procedural Background
is the founder, managing editor, and webmaster of
Antiwar.com. Antiwar.com is "an
anti-interventionalist, pro-peace," non-profit news
website, the mission of which is to publish news, information
and analysis on the issues of war and peace, diplomacy,
foreign policy, and national security, as an alternative to
mainstream media sources.
FBI's 2004 Threat Assessment Memo
March 2004, the FBI's Counterterrorism Division's
Terrorism Watch and Warning Unit advised all field offices
that a post-9/11 "watch list," that is, an FBI
suspect list, called "Project Lookout" had been
posted on the Internet and "may contain the names of
individuals of active investigative interest." An FBI
agent subsequently discovered a twenty-two-page untitled
Excel spreadsheet, dated 10/03/2001, on Antiwar.com. The
spreadsheet contained names and identifying information, and
appeared to be a possible FBI watch list.
discovery prompted the Newark, New Jersey, FBI office to look
further at Antiwar.com. The Newark office subsequently
identified on Antiwar.com another document, written in
Italian, which was accompanied by a second twenty-two-page
spreadsheet, dated 05/22/2002, that also appeared to be an
FBI suspect list. The second spreadsheet was marked "FBI
SUSPECT LIST" at the top of each page and "Law
Enforcement Sensitive" at the bottom.
memorialized this information in the 2004 Memo with the
subject "threat assessment: . . . Eric Anthony Garris
[and] www.antiwar.com." In addition to detailing the
investigation and watch lists described above, the ten-page
2004 Memo described Antiwar.com's mission and listed
Garris as the managing editor. The Memo also detailed the
results of law enforcement database searches for Garris and
references to Garris and Antiwar.com found in FBI records.
The Memo further stated that a Lexis Nexis search was run for
Garris and Antiwar.com, and described six of the articles
found by the search, all of which describe articles,
opinions, statements, or speeches given by Garris or
Raimondo. The majority of these focus on Garris'
political views. Additionally, the Memo noted that persons of
interest to the FBI had accessed or discussed Antiwar.com.
section for "analyst comments," the Memo stated
that "[t]he discovery of two detailed Excel spreadsheets
posted on www.antiwar.com may not be significant by itself
since distribution of the information on such lists are wide
spread," but "it is unclear whether www.antiwar.com
may only be posting research material compiled from multiple
sources or if there is material posted that is singular in
nature and not suitable for public release. There are several
unanswered questions regarding
www.antiwar.com." The 2004 Memo concluded by recommending to
the FBI San Francisco Field Office that it further monitor
Antiwar.com's postings and open a preliminary
investigation to determine if Garris "[was] engaging in,
or ha[d] engaged, in activities which constitute a threat to
National Security on behalf of a foreign power."
FBI's San Francisco Field Office declined the
recommendation, however, explaining that "it appears the
information contained [on Antiwar.com] is public source
information and not a clear threat to National
Security," and "there does not appear to be any
direct nexus to terrorism nor the threat of compromising
current FBI investigations," and noting that Garris
"[was] exercising [his] constitutional right to free
learned of the 2004 Memo in August 2011, after a partially
redacted version was released on a website. He contends that
his and the public's awareness of the 2004 Memo caused
him significant injury, including chilling of speech, damaged
reputation, and loss of funding and other resources.
FBI's 2006 Halliburton Memo
2006, the FBI's Oklahoma City Field Office created the
Halliburton Memo, a memorandum describing information
regarding an upcoming annual Halliburton shareholders'
meeting in Duncan, Oklahoma. The Halliburton Memo briefly
described the Halliburton company, its contracts with the
Department of Defense and prior affiliation with former Vice
President Dick Cheney, and the schedule and logistics for the
shareholders' meeting, noting that the meeting had been
"targeted by multiple organized protest groups."
The Halliburton Memo also included a list of websites that