Federal Building Blueprints Not Obtainable Under FOIA

building repairs, "add room number, room description and (internal quotation marks omitted), and the agency bears the 2's language documents withheld must also relate to "rules code itself, but also to the committee's decisions 5 rice, 531 f.3d 936, 945 (d.c. cir. 2008) (refusing to consider the house report, applies to "[p]redominantly internal forth in this opinion, we affirm. curiae's br. 38 (emphasis added). although this somewhat routing instructions appearing on documents "to protect appellant particular statutes at risk of circumvention. id. at *5. iv. "record is completely devoid of any explanation as to how the brought suit in the u.s. district court for the district of management of an agency." rose, 425 u.s. at 362 (citing court left off in rose, we held that exemption 2 protects opinion for the court filed by circuit judge tatel. court rejected elliott's first argument, explaining that we have vi. on appeal arguments that a plaintiff entirely failed to raise in f.2d at 1056. satisfying this component of the threshold test appellant. contest: agency personnel use the blueprints to perform exemption 2 also encompasses "materials that are so relatedness requirement. one such category is exemplified by only those documents or portions thereof that fall under one government must also demonstrate that "disclosure directive 9 (jan. 30, 2004). agreeing with the government, cir. 1978) (en banc), we stated that "personnel" refers only to exemption 2. elliott v. u.s. dep't of agric., no. 06-240, pertaining to the use of weapons and other law enforcement the statutory requirement of being `related' to agency rules or some and pasting in others. as a result, like the ship of term "`relating' is potentially all-encompassing while `solely' of the portions which are exempt."); mead data cent. v. u.s. secretary to sell "photographic prints (including bromide predominantly internal documents that relate to agency part the government's summary judgment motion on the exemption, 5 u.s.c. � 1002 (1964 ed.)). 14 falling within this category include instructions to agency various biological agents and toxins, illicit narcotics, and church of scientology, 721 f.2d at 829. sanction a weak relation to `rules and practices' may be that might result from disclosure to the subjects of regulation is potentially all-excluding." id. at 1056 (quoting vaughn v. for the district of columbia circuit cause for appellee. with her on the brief was r. craig report, the guidelines fell outside exemption 2's scope. id. disclosure exemption under former section 3 of the rules and practices' encompass not merely minor employment forfeited--elliott challenged in the district court the adequacy physical security over the research programs and critical since abandoned jordan's interpretation of "personnel" as d.c., inc. v. smith, 721 f.2d 828, 830 n.4 (d.c. cir. 1983)). his motions opposing summary judgment, the district court, noted above, to withhold material under exemption 2 the explosives' blast radii on the ground that the maps, created 552(b). these exemptions are "explicitly exclusive," u.s. dep't of justice v. tax analysts, 492 u.s. 136, 151 (1989) and practices of an agency." 5 u.s.c. � 552(b)(2). the united states department of agriculture, but here again, elliott failed to press these arguments in justice, 636 f.2d 472, 485 (d.c. cir. 1980), we concluded that the district court "erred when it summarily concluded that policies and procedures that [navy] personnel are bound to symbols to communicate about secret informants. in contrast, by the air force academy's honor committee. although follow when handling and storing explosive ordnance"). 40, and that the "usda failed to identify any specific usda personnel. but that is because in the district court elliott explained that they "manifest and implement the rules and presented no evidence calling into question the efficacy of the engineering and construction branch looked only for 3 disclosed without posing a security risk. id. elliott appealed, camera review," juarez v. dep't of justice, 518 f.3d 54, 60 efforts, which have helped us understand the issues before us. asserted exemption, 5 u.s.c. � 552(a)(4)(b). critical infrastructure information related to security and and expressly repudiated jordan's "limited" interpretation of construction branch, the only locations where barc 8 one hand, the court accepted the senate's interpretation of of the law." id. at 1066. accordingly, "the words `personnel infrastructure assets at barc." thessen decl. � 3, aug. 13, pursuant to a navy manual, "constitute one part of the internal within foia exemption 2 because their disclosure would in schwaner, moreover, we distinguished between high 2 necessary to prevent the circumvention of agency regulations nature of the blueprints on file at barc and used in the 13 for the district of columbia that is, the material must be "used for predominantly internal (1976). consistent with this purpose, agencies may withhold practice, however, to fall within the high 2 exemption. 2007. according to the government, barc buildings house the air force personnel lists requested in schwaner shed little parking. mem. in opp'n to summ. j. 4 (quoting jordan, 591 and practices governing agency personnel." crooker, 670 cir. 1979). these cases clearly reflect the house report's disclosure of the blueprints "would render barc vulnerable provided to any person requesting such a record after deletion enlargements), lantern slides, transparencies, blueprints, and 2 exemption, tracking the senate report, covers amicus's arguments, however, stray beyond those elliott 508 f.3d 1108, 1124 (d.c. cir. 2007). first, the information dep't of air force, 566 f.2d 242, 260 (d.c. cir. 1977); v. f.2d 1287, 1299 (d.c. cir. 1980), overruled on other grounds in crooker that the exemption covers documents that are freedom of information act (foia) to compel the united documents the disclosure of which would risk circumvention disclosure "any matter relating solely to the internal by crooker, 670 f.2d 1051, as recognized in founding circumvention of federal policies, statutes, or regulations." amicus argues that the blueprints are not predominantly 15 committees both saw exemption 2 as narrowing the public supports the first of these claims, which amicus does not were exempt from disclosure because they are "used for practices of usda employees. in his opposition to the exemption 2, nat'l ass'n of home builders v. norton, 309 blueprints could be released without presenting a risk of ("any reasonably segregable portion of a record shall be 352 (1976), the supreme court declined to pick sides. on the "predominantly" internal. id. at 1056�57. this modification acknowledging this more forgiving standard applicable could be threatened by release of the blueprints. the barc blueprints relate to the rules that govern usda renewed motion for summary judgment and additional filings how to perform their official job duties. other materials tatel, circuit judge: appellant brought suit under the that it has conducted a search reasonably calculated to sensitive administrative instructions for the handling of the that predominant internality is necessary but insufficient to within the indicated time period. see id. at 1116 (noting that individuals outside the usda have seen the blueprints," barc buildings to the maryland historical trust. but we coordinator, usda, to damon elliott (dec. 29, 2005). radioactive materials, and the campus contains critical objective." dep't of the air force v. rose, 425 u.s. 352, 361 matters," as we held in jordan, "but may cover other rules and manuals of procedure for government investigators or material "related" to agency rules or practices. in schwaner personnel." crooker, 670 f.2d at 1073. second, if this the exemption expressed in the house and senate reports. force, 898 f.2d 793 (d.c. cir. 1990), for example, the firearms, 670 f.2d 1051, 1073 (d.c. cir. 1981). there, the f.2d at 763). elliott also suggested that the usda did not use summary judgment for the government. for the reasons set for fifteen years after foia's enactment, see pub. l. no. implementing the code. schwaner, 898 f.2d at 795; see also nonfederal property. after conducting a search for responsive campus of the united states department of agriculture's appellate amicus, and we too are grateful for its diligent elliott apparently seeks the blueprints in order to prove that risk circumvention of federal policies, statutes, or manual fell squarely within exemption 2 because it was used 4 exemption [2], it did not need to reach the question of in administrative matters of no genuine public interest." schiller evaluate the qualifications of job applicants, nteu, 802 f.2d that the predominantly internal material bears a sufficient agency," 5 u.s.c. � 552(b)(2), the district court granted because "data itself is not a practice," the district court stemmed from the seemingly contradictory interpretations of 12 threshold step is satisfied, the agency can defeat disclosure by the district court. even so, the government did address search beyond speculating as to the employees' ability to overlooked the segregability requirement." schiller, 964 f.2d training manual at issue there instructed government agents and duty addresses of military personnel stationed at bolling iii. damon elliott, andrea mcbarnette, assistant u.s. attorney, argued the internal personnel rules and practices of an agency. examples none of the information contained in the blueprints can be of the barc blueprints," id. at 42. amicus further argues exemptions, that does not absolve the [agency] of its duty to would risk circumvention of agency regulations." id. at 1073. reasonably segregable portion of the blueprints could be concluding that no reasonably segregable portion of the no. 07-5385 despite exemption 2's reference to documents related judgment, the government argued that the blueprints fell those arguments entail fact-intensive inquiries such as f.2d at 796. for example, in founding church of scientology elliott's foia requests, usda employees searched the infrastructure such as wastewater treatment plants, water (1966). burden of showing that withheld material falls within the predominantly internal purposes and their disclosure may risk appellee must conform their conduct not just to the academy's honor "personnel" rules and practices refers only to matters relating (internal quotation marks omitted). we reversed, holding that (d.c. cir. 2007). that is particularly true where, as here, where the asserted government interest is, by definition, to building 22. the agency refused to disclose any blueprints, argument never made in district court). concluding that the requested blueprints fall within foia protected by the high 2 exemption. we review the district taking a different view, the house report described the at 1209. and, contrary to amicus's contention, "because the portions"). rather, the exemption expressly protects from disclosure itself constitutes an agency personnel rule or practice. government. to high 2 materials, amicus nonetheless complains that the appeal from the united states district court risk circumvention of federal regulations or statutes. schiller, we affirm the grant of summary judgment to the were withheld. upgrades," and identify watering responsibilities for barc 17 these searches--about two hours apiece--the agency's search on appeal, amicus contends that the government failed to and low 2 cases, observing that "[j]udicial willingness to (d.d.c. 2007). in addition, the district court held that no to disclosure of the rule or practice itself." schwaner, 898 9 and facing what we believed to be mutually exclusive views covers matters "related solely to the internal personnel rules plaintiff sought disclosure of a roster containing the names amicus argues that given the amount of time devoted to maintains blueprints for 375 barc buildings, it has none for . . . , and explain its reasoning for withholding the documents the connection between release of the blueprints and the in surveillance techniques. picking up where the supreme barc blueprints on file, the employee who searched the authoritative expression of congress's intent. in jordan v. response act of 2002, 107 pub. l. no. 107-188, 116 stat. part, finding that although the agency had performed an addressed whether the blueprints fall within the scope of demonstrate that release of the blueprints would pose a employees implementing the equal access to justice act, courts can rely on agency affidavits that are reasonably focusing, then, on these two deficiencies, the after exhausting his administrative remedies, elliott rose, where the plaintiffs sought summaries of cases decided square footage information" to building databases, coordinate nontrivial matters "where disclosure might risk circumvention practices in that they bear upon, or cast light upon, those get past the threshold inquiry; the government must also show case, the government asserted in the district court that conception of exemption 2 as covering "[o]perating rules, compromise the security of barc's critical infrastructure and (noting that "non-exempt portions of a document must be government's affidavits were "made in bad faith," citing in argued, if the agency released some blueprints but not others, practices, cox v. u.s. dep't of justice, 601 f.2d 1, 3�4 (d.c. rules and practices or whether such documents--or portions facilities or regulation of lunch hours, statements of policy as columbia to compel disclosure of all blueprints responsive to presents little difficulty in cases where the withheld material statutes." crooker, 670 f.2d at 1074. claiming this to be the exemption 2 in crooker v. bureau of alcohol, tobacco & exemption 2's threshold test because the "usda uses with the district court that the withheld blueprints satisfy argued november 6, 2009 decided february 26, 2010 agency practices for the first time on appeal. see adams v. it would effectively tip off intruders that potential targets such office and laboratory moves, conduct "security assessment district court . . . was satisfied that [the agency's] affidavits distribution stations, and power transfer stations--all of which internal because the usda has released blueprints for various (d.c. cir. 2008), particularly given that elliott never disputed set forth policies regarding the protection of critical for the proposition that exemption 2's reference to documents," and in lesar v. united states department of construction branch." hutchison decl. � 6. absent demonstrating that release of the material would significantly of washington, d.c., inc. v. smith, 721 f.2d 828, 829 (d.c. safety." letter from stasia a.m. hutchison, foia 7 elliott was pro se, and therefore held to less stringent pleading "matters relating to pay, pensions, vacations, hours of work, ordered the release of prosecutorial guidelines used by u.s. schiller, 964 f.2d at 1206, customs service plans used to 2." id. thus, although we have sometimes framed the first think it useful to briefly review how we got to this point. 594 (2002), which provides for usda regulation of certain rosen, 523 f.2d 1136, 1150 (d.c. cir. 1975) (leventhal, j., areas depicted on those blueprints. similarly, the government of a two-step inquiry. morley v. cent. intelligence agency, lawrence, assistant u.s. attorney. establish rules and practices for agency personnel, i.e., law public health security and bioterrorism preparedness and however, asserting that foia exemption 2 "protects sensitive cir. 1983), we allowed the fbi to withhold from disclosure states department of agriculture to disclose blueprints to disclosed unless they are inextricably intertwined with exempt as to the government's second point, that "few informants in fbi documents and records." as we explained the blueprints for "internal" purposes. id. at 2. the district thoroughly search a filing cabinet or electronic database the government argues that the blueprints satisfy (no. 06cv00240) thereof--could be released without compromising security agency." id. at 364. exemption 2's predominant internality requirement. amicus may not challenge the blueprints' relationship to overstates the case, it is true that the government's briefs in given these differences, however, the house and senate because it was "purely internal." schwaner, 898 f.2d at 794 collecting the data itself. 898 f.2d at 795�96. although the predominant internality of the blueprints or articulate clearly government's argument that the requested blueprints are agency's assertion. and forfeiture standards, we will not consider for the first time judgment, the "agency must show beyond material doubt . . . concurring)) (internal quotation marks omitted). thus, somewhat less demanding than for low 2 matters, for which stemmed from our recognition that, if interpreted literally, the affidavits describe these searches in detail, and amicus has appellant damon elliott submitted foia requests "significant risk" to national security, amicus curiae's br. materials contemplated by the house report "where foia requester sought a copy of a bureau of alcohol, maryland historical trust, but rather wants those that remain the content of the requested documents, cf. allen v. cia, 636 uncover all relevant documents." weisberg v. u.s. dep't of quotation marks omitted). the "high 2" exemption, following of nine delineated statutory exemptions. see 5 u.s.c. � 2007 wl 1302588, at *4 (d.d.c. may 2, 2007). following a greenhouse staff. bynum decl. � 3, july 27, 2007; taylor with this background in mind, we turn to the exemption 2 as covering minor employment-related matters research programs. forest maps." mem. in opp'n to renewed mot. for summ. j. of . . . procedural manuals and guidelines used by the enforcement investigatory techniques," and its "disclosure government cited a variety of federal laws and policies that 10 greatest when the asserted government interest is relatively we require a tighter nexus between the withheld information v. the blueprints to all barc buildings, as elliott requested. the high 2 exemption--the one at issue in this case--in terms dispositive issue concerns whether the requested information whether requested documents relate sufficiently to agency the agency' to show that requested material falls within" tasked with searching the real property section looked for all of "architectural drawings on file at the engineering and air force base. recognizing that exemption 2 was a poor fit raised in the district court, and although we recognize that mindful that "congress intended that exemption 2 be records of the real property section and the engineering and 70. on the other hand, the court acknowledged, but did not pac. policing agreement v. u.s. customs serv., 177 f.3d the trial court. see greenhill v. spellings, 482 f.3d 569, 572 11 true, unlike manuals and guidelines, blueprints give "notably, [t]his exemption does not shield information case summaries are not themselves rules and practices, we nonetheless held that the list fell within the exemption to "pay, pensions, vacations, hours of work, lunch hours," and support 7 u.s.c. � 2243, which authorizes the usda blueprints," and "few individuals outside the usda have damon elliott, pro se, filed briefs for appellant. cir. 1990) (quoting founding church of scientology of wash, morley, 508 f.3d at 1125 (internal quotation marks omitted) omitted). closely related to rules and practices that disclosure could lead ii. coordinator stated that the agency had in fact compiled a list three years later and sitting en banc, we reversed course milner v. u.s. dep't of the navy, 575 f.3d 959, 968 (9th cir. practices." schwaner, 898 f.2d at 796. the notations in in which the public lacked a significant interest. id. at 369� united states department of justice, 591 f.2d 753, 763 (d.c. although elliott challenged these assertions in neither of regulation or statute that could be circumvented by the release both the district court and on appeal focus primarily on the identify responsive documents, claim the relevant exemptions practices" of the agency relating to the conduct of cadets, who confronting the dueling house and senate reports for internal routing and distribution practices, and the redacted threshold test, rather than on the requirement that withheld had some effect on the public at large, we held that the house and senate reports by explaining that exemption 2 is "the list does not bear an adequate relation to any rule or i. segregated and disclosed." id. at 43; see 5 u.s.c. � 552(b) on the sole basis that it is designed for internal agency use." amicus next complains that although the employee segregability issue sua sponte," passed on the issue, ultimately united states court of appeals one final issue remains. to prevail on summary documents, the agency informed elliott that although it 16 crooker, the canonical high 2 case, fits this mold, as the atf attorneys on the ground that, as envisioned by the senate reporter to the explication of these twelve words, cutting out since crooker, we have articulated the requirements of significant matters like job training for law enforcement adequately relates to internal matters, schwaner makes clear blueprints for building 22. thus, amicus argues, the agency of agency statutes and regulations." id. that exemption 2 protected "symbols used to refer to fbi weighty." id. at 796. thus with respect to high 2 materials, crooker thus resolves the apparent conflict between the seen the blueprints." appellee's br. 12, 13. record evidence agency employees little explicit guidance about how to do to an outside group does not vitiate the predominantly internal where "both the [agency] and the district court appear to have predominant internality component of exemption 2's never challenged the relatedness of the blueprints to the directive 7 (dec. 17, 2003); homeland security presidential personnel." id. at 1056. tobacco & firearms (atf) manual used to train new agents surrounded the scope of exemption 2. this uncertainty circumvention. morley, 508 f.3d at 1123 (quoting trans- the senate report stated that exemption 2 "relates only to the decide, that the exemption might protect the more important nat'l treasury employees union v. u.s. customs serv., 802 despite the fact that the withheld portions of the atf manual and personnel rules and practices. protected records could be withheld under one of the foia founding church of scientology revealed the agency's in schwaner, the "materials in these cases fall handily within behalf. 89-487, 80 stat. 250 (1966), considerable confusion as biological agents are located in buildings whose blueprints we described two categories of material that could satisfy this failed to conduct a search reasonably calculated to uncover to potential threats and unnecessary risk in maintaining symbols in lesar shed light on the fbi's practice of using justice, 705 f.2d 1344, 1351 (d.c. cir. 1983). "[e]ven if the anand v. ramana, appointed by the court, argued the this case concerns the scope of exemption 2, which adequate search for responsive documents, it had failed to employees, or the practices of those employees." amicus deliberate attacks, see homeland security presidential encompassing only minor employment matters. elliott, 2007 assignment practices, we found any such link too "tenuous of these may be rules as to personnel's use of parking practice of the air force as those terms are used in exemption court's grant of summary judgment de novo, remaining "[d]isclosure, not secrecy, is [foia's] dominant and practices governing agency personnel, including his foia requests. see 5 u.s.c. � 552. seeking summary 1022, 1028 (d.c. cir. 1999)). this is therefore not a case interpreted narrowly and specifically," rose, 425 u.s. at 365 his opposition to that renewed motion, however, elliott never step of the test as one of "predominant internality," see, e.g., obligate the agency to protect these assets, including the investigators or examiners." h.r. rep. no. 89-1497, at 10 countervailing evidence, we have no basis to question the purposes," and relate to "rules and practices for agency decl. � 2. government's summary judgment motion, elliott cited jordan relationship to agency rules and practices. grounds that the government had failed to establish the cause and filed the briefs as amicus curiae in support of again, we disagree. in her declaration, the agency's foia courts have devoted thousands of pages of the federal infrastructure and food and agricultural systems against presumably not seeking those blueprints that are housed at the seeking architectural blueprints for all buildings on the exemption as encompassing "[o]perating rules, guidelines, elliott has benefited from the assistance of skilled lunch hours, parking, etc." applying this construction, we before: tatel, garland, and kavanaugh, circuit prevent circumvention of law, the threshold inquiry may be "for predominantly internal purposes," it was "designed to congress's dissatisfaction with the broad sweep of the apa's exemption 2, which exempts from disclosure matters "related blueprints are stored. schwaner v. dep't of the air force, 898 f.2d 793, 794 (d.c. in its affidavit." morley, 508 f.3d at 1120. in response to personnel rules and practices does not end our analysis. as with the question thus left open by the supreme court, f.2d 525, 528 (d.c. cir. 1986) ("nteu"), at least where the their jobs. information need not take the form of a rule or to sick leave, and the like." s. rep. no. 89-813, at 8 (1965). 964 f.2d at 1207; see crooker at 1074. f.3d 26, 32 (d.c. cir. 2002) (internal quotation marks so ordered. of exemption 2, we initially adopted the senate report as the consistent with its "affirmative duty to consider the material relate to rules and practices governing agency wl 1302588, at *4. the district court nonetheless denied in at 527, and portions of the manual for u.s. marshals 2009) (protecting from disclosure navy maps depicting sufficiently justify withholding the blueprints under predominantly internal documents that deal with "trivial of the agency's search--we disagree. the government's and indirect" to satisfy the "related" requirement. id. at 798. "solely" to internal rules and practices, we further explained 1. because elliott failed to raise the issue in the district court, theseus, little of congress's original language remains. we agree with the government that disclosure of some blueprints properly placed the withheld documents within the scope of significantly risks circumvention of agency regulations or agency had argued that the lists reflected air force duty administrative procedure act (apa), which protected from the district court found that disclosure of the blueprints "may biological agents and toxins, and presidential directives that 6 by both parties, the court then concluded that the blueprints determining whether the blueprints qualify as the first time in department of the air force v. rose, 425 u.s. solely to the internal personnel rules and practices of an judges. detailed and nonconclusory). elliott v. u.s. dep't of agric., 518 f. supp. 2d 217, 221 and we appointed amicus curiae to present arguments on his guidelines, and manuals of procedure for government v. nlrb, 964 f.2d 1205, 1207 (d.c. cir. 1992) (internal as explained above, however, to fall within exemption withheld must fall within the exemption's language. the district court granted the government's motion in light on any agency practice other than the practice of examiners." h.r. rep. no. 89-1497, at 10 (1966). even exclusively under the agency's control. we therefore agree (internal quotation marks omitted), and that "the `burden is on 2 actually two exemptions wrapped in one. the so-called low course of the abovementioned activities. after all, elliott is regulations." elliott, 518 f. supp. 2d at 221. segregability in both of its summary judgment motions, (alteration in original). in schwaner v. department of the air blueprints would necessarily reveal the location of sensitive government filed a renewed summary judgment motion. in was inherently inadequate. although this argument is not arguing that release of redacted--i.e., partially blacked out-- and circumventing federal law. exemption 2. rather, he complained only that the buildings located on an agricultural research campus. building 22, a residential building on the barc campus, is (usda's) beltsville agricultural research center (barc).