20-3837
`Knight v. USCIS et al.
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`In the
`United States Court of Appeals
`For the Second Circuit
`
`
`August Term, 2021
`No. 20-3837
`
`KNIGHT FIRST AMENDMENT INSTITUTE AT COLUMBIA UNIVERSITY,
`Plaintiff-Appellee,
`
`v.
`
`UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED
`STATES DEPARTMENT OF STATE, UNITED STATES IMMIGRATION AND
`CUSTOMS ENFORCEMENT,
`Defendants-Appellants,
`
`UNITED STATES DEPARTMENT OF HOMELAND SECURITY, UNITED
`STATES DEPARTMENT OF JUSTICE, UNITED STATES CUSTOMS AND
`BORDER PROTECTION,
`Defendants.
`
`
`
`On Appeal from the United States District Court for the Southern
`District of New York
`
`
`ARGUED: JANUARY 6, 2022
`DECIDED: APRIL 6, 2022
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`
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`Knight v. USCIS et al.
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`In the
`United States Court of Appeals
`For the Second Circuit
`
`
`August Term, 2021
`No. 20-3837
`
`KNIGHT FIRST AMENDMENT INSTITUTE AT COLUMBIA UNIVERSITY,
`Plaintiff-Appellee,
`
`v.
`
`UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED
`STATES DEPARTMENT OF STATE, UNITED STATES IMMIGRATION AND
`CUSTOMS ENFORCEMENT,
`Defendants-Appellants,
`
`UNITED STATES DEPARTMENT OF HOMELAND SECURITY, UNITED
`STATES DEPARTMENT OF JUSTICE, UNITED STATES CUSTOMS AND
`BORDER PROTECTION,
`Defendants.
`
`
`
`On Appeal from the United States District Court for the Southern
`District of New York
`
`
`ARGUED: JANUARY 6, 2022
`DECIDED: APRIL 6, 2022
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`
`
`Before: JACOBS, RAGGI, and NARDINI, Circuit Judges.
`
`
`
`Defendants-Appellants United States Citizenship and
`Immigration Services, United States Department of State, and United
`States Immigration and Customs Enforcement appeal from three
`orders of the district court requiring them to produce documents in
`response to requests from Plaintiff-Appellee the Knight First
`Amendment Institute at Columbia University under the Freedom of
`Information Act. The district court (Andrew Carter, J.) ordered
`disclosure of three sets of documents: (1) portions of Volume 9 of the
`Foreign Affairs Manual; (2) the questions that are used to determine
`whether to apply the “Terrorism Related Inadmissibility Ground” to
`applicants for immigration benefits; and (3) a memo titled “ICE
`Ability to Use 212(a)(3)(C) Foreign Policy Charge.” We hold that the
`Department of State and United States Citizenship and Immigration
`Services properly withheld the first two sets of documents under
`FOIA Exemption 7(E). We therefore REVERSE the orders of the
`district court requiring disclosure of those materials. With respect to
`the third, it is unclear whether the agency has already complied fully
`with the district court’s order, in which case its appeal would be moot.
`Accordingly, we REMAND to allow the parties to further develop the
`record.
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`
`
`
`
`
`CATHERINE CRUMP (Megan Graham,
`Samuelson Law, Technology & Public
`Policy Clinic, U.C. Berkeley School of Law,
`Berkeley, CA, Xiangnong Wang, Carrie
`DeCell, Alex Abdo, Jameel Jaffer, Knight
`First Amendment Institute at Columbia
`University, New York, NY, on the brief),
`
`
`
`Samuelson Law, Technology & Public
`Policy Clinic, U.C. Berkeley School of Law,
`Berkeley, CA, for Plaintiff-Appellee.
`
`
`ELLEN BLAIN, Assistant United States
`Attorney (Sarah S. Normand, Benjamin H.
`Torrance, Assistant United States Attorneys
`on the brief), for Audrey Strauss, United
`States Attorney for the Southern District of
`New York, New York, NY, for Defendants-
`Appellants.
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`
`
`
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`
`
`WILLIAM J. NARDINI, Circuit Judge:
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`The Freedom of Information Act, 5 U.S.C. § 552 (“FOIA”),
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`enacted in 1966, allows citizens to find out what their government is
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`up to. FOIA embodies a strong policy in favor of disclosing materials
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`in response to citizens’ requests. In some circumstances, though,
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`Congress has determined that other interests—such as personal
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`privacy, national security, or foreign policy—outweigh the need for
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`transparency. These circumstances are embodied by a limited set of
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`3
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`statutory exemptions from FOIA’s disclosure requirements. This case
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`requires us to determine the scope of one such exemption.
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`Defendants-Appellants United States Citizenship and
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`Immigration Services (“USCIS”), United States Department of State
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`(“DOS”), and United States Immigration and Customs Enforcement
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`(“ICE”) appeal from three orders of the United States District Court
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`for the Southern District of New York (Andrew Carter, J.) entered on
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`September 13, 2019, September 23, 2019, and September 13, 2020,
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`requiring them to produce certain documents in response to FOIA
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`requests from the Knight First Amendment Institute at Columbia
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`University (“Knight”). Knight requested documents concerning the
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`agencies’ interpretation and implementation of provisions of the
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`Immigration and Nationality Act (“INA”) that allow exclusion of
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`aliens from the United States based on the aliens’ connections to or
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`endorsement of terrorist activity. The parties have resolved several
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`of Knight’s requests, leaving only three sets of documents at issue on
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`4
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`appeal: (1) portions of Volume 9 of the Foreign Affairs Manual; (2) the
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`questions that USCIS uses to determine whether to apply the
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`“Terrorism Related Inadmissibility Ground” to applicants for
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`immigration benefits; and (3) an ICE memo titled “ICE Ability to Use
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`212(a)(3)(C) Foreign Policy Charge.” We hold that DOS and USCIS
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`properly withheld the first two sets of documents under FOIA
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`Exemption 7(E). With respect to the third, the record is unclear as to
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`whether ICE has already complied fully with the district court’s
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`order, which would render its appeal moot. We therefore remand for
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`further proceedings on that issue.
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`BACKGROUND
`
`I.
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`Knight’s Freedom of Information Act Request
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`The INA governs immigration and citizenship in the United
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`States. See 8 U.S.C. ch. 12. Section 212 of the INA excludes from
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`admission to the U.S. any alien who “endorses or espouses terrorist
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`activity or persuades others to endorse or espouse terrorist activity or
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`5
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`support a terrorist organization[,]” 8 U.S.C. § 1182(a)(3)(B)(i)(VII), or
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`who is “a representative . . . of . . . a political, social, or other group
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`that
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`endorses
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`or
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`espouses
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`terrorist
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`activity[,]”
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`id.
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`§ 1182(a)(3)(B)(i)(IV)(bb)
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`(together,
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`the
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`“endorse-or-espouse
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`provisions”). The INA also excludes aliens whose admission the
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`Secretary of State “has reasonable ground to believe would have
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`potentially serious adverse foreign policy consequences for the
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`United States.” Id. § 1182(a)(3)(C)(i) (the “foreign-policy provision”).
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`An alien is not excludable “because of the alien’s past, current, or
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`expected beliefs, statements, or associations . . . [that] would be lawful
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`within the United States, unless the Secretary of State personally
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`determines that the alien’s admission would compromise a
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`compelling United States
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`foreign policy
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`interest.”
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`Id.
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`§ 1182(a)(3)(C)(iii).
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`On August 7, 2017, Knight filed FOIA requests with several
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`executive agencies, including DOS, USCIS, and ICE. Knight asserted
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`6
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`that its FOIA requests were prompted by President Donald Trump’s
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`statements and executive orders related to the above-described INA
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`provisions. Specifically, President Trump purportedly stated his
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`intention to institute an “‘ideological screening test’ for admission
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`into the United States and said that a ‘new screening test’ involving
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`‘extreme, extreme vetting’ was overdue.” Joint App’x at 37 (quoting
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`Karen Deyoung, Trump Proposes Ideological Test for Muslim Immigrants
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`and Visitors
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`to
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`the U.S., Wash. Post
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`(Aug. 15, 2016),
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`https://perma.cc/G9SCEPHT). President Trump subsequently issued
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`two executive orders that are at issue here: Exec. Order No. 13769, 82
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`Fed. Reg. 8977 (Jan. 27, 2017) and Exec. Order No. 13780, 82 Fed. Reg.
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`13209, 13215 (Mar. 6, 2017) (together, the “Executive Orders”).
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`The Executive Orders directed executive departments,
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`including DOS and the Department of Homeland Security (under
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`which USCIS and ICE fall), to develop a more robust vetting program
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`for
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`immigrants entering
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`the country.
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` They required “the
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`7
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`development of a uniform baseline for screening and vetting
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`standards and procedures” and processes to “ensur[e] the proper
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`collection of all information necessary for a rigorous evaluation of all
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`grounds of inadmissibility.” Exec. Order No. 13780, 82 Fed. Reg. at
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`13215.1
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`Knight sought several categories of records related to the way
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`that agencies interpreted and implemented the endorses-or-espouses
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`provisions and the foreign-policy provision of the INA under the
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`Executive Orders. The agencies released a substantial volume of
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`material in response to Knight’s request but withheld some
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`documents in whole or in part under various FOIA exemptions. For
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`example, USCIS produced 957 pages in their entirety but withheld 357
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`pages. The parties resolved most disputes about the scope of the
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`
`1 President Joseph Biden revoked the Executive Orders on the first day of his
`administration. See Proclamation No. 10,141, 86 Fed. Reg. 7005 (Jan. 20, 2021).
`Knight asserts that it maintains an interest in the material it requested because of
`“the expanded focus on social media accounts in immigration vetting in recent
`years, and the Biden Administration’s active review and reconsideration of these
`policies.” Knight Br. at 8.
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`
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`8
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`agencies’ withholding between themselves, and Knight filed suit
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`seeking an order requiring the agencies to produce a subset of the
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`documents about which the parties were unable to agree. Before the
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`district court, the parties filed cross-motions for partial summary
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`judgment. Three sets of records addressed in the district court’s
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`rulings on those motions remain at issue in this appeal: (1) portions
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`of Volume 9 of the Foreign Affairs Manual (“9 FAM”); (2) a set of
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`training slides, manuals, and guides containing questions relating to
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`the Terrorism Related
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`Inadmissibility Grounds
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`(the “TRIG
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`questions”); and (3) an ICE memorandum titled “ICE Ability to Use
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`212(a)(3)(C) Foreign Policy Charge” (the “ICE memo”).
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`The court addressed the 9 FAM records in its September 13,
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`2019, ruling on the parties’ first cross-motions for summary judgment.
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`It addressed the TRIG questions and the ICE memo in its September
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`23, 2019, ruling on the parties’ second cross-motions for summary
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`judgment. And it addressed the parties’ additional arguments related
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`9
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`to the 9 FAM records and TRIG questions in its September 13, 2020,
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`ruling on
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`the government’s motion
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`for clarification and
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`reconsideration.
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`A.
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`Three Sections of the Foreign Affairs Manual
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`Knight requested “[a]ll Foreign Affairs Manual sections
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`(current and former) relating to the endorse or espouse provisions or
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`the foreign policy provision, as well as records discussing,
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`interpreting, or providing guidance regarding such sections.” Joint
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`App’x at 39.
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`DOS describes the Foreign Affairs Manual and the associated
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`Handbooks as
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`a single, comprehensive, and authoritative source for the
`Department’s organization structures, policies, and
`procedures that govern the operations of the State
`Department, the Foreign Service and, when applicable,
`other federal agencies. The FAM (generally policy) and
`the [Foreign Affairs Handbooks] (generally procedures)
`together convey codified information to Department
`staff and contractors so they can carry out their
`responsibilities in accordance with statutory, executive
`and Department mandates.
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`10
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`DOS, Foreign Affairs Manual and Handbook, https://fam.state.gov
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`[https://perma.cc/5JJC-TKC6] (last visited Mar. 22, 2022).
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`DOS provided relevant portions of the manual to Knight but
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`redacted certain sections of 9 FAM. In general, 9 FAM includes
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`“directives and guidance” for DOS personnel adjudicating U.S. visas.
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`9 FAM 101.1. DOS asserted that the redacted portions of the manual
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`were exempt from disclosure under Exemption 7(E). 2 Versions of
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`three partially redacted sections remain at issue: 9 FAM 302.6, 9 FAM
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`40.32, and 9 FAM 302.14.
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`• Eight versions of 9 FAM 302.6. DOS redacted eight versions of
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`9 FAM 302.6, titled “Ineligibilities Based on Terrorism Related
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`Grounds.” Joint App’x at 66. It asserted that the redacted
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`2 Exemption 7(E) excludes from the disclosure requirement “records or
`information compiled for law enforcement purposes [the release of which] . . .
`would disclose techniques and procedures for law enforcement investigations or
`prosecutions, or would disclose guidelines for law enforcement investigations or
`prosecutions if such disclosure could reasonably be expected to risk circumvention
`of the law.” 5 U.S.C. § 552(b)(7)(E).
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`11
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`
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`portions “disclose law enforcement investigation techniques,
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`procedures, and guidelines.” Id. Its Vaughn index3 lists each
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`redaction and explains how the redaction falls within the
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`exemption. For example, “9 FAM 302.6-2(B)(1)(b). reveals
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`interagency cooperation procedures during the process of
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`checking for terrorism-related ineligibilities,” id.; and “9 FAM
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`302.6-2(B)(4)e. (2) and (5) gives guidelines for when spouses
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`and children trigger the requirement for further security
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`investigation and how to conduct that process,” id. at 67. DOS
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`concluded that “[d]isclosure of any of the above information
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`could reasonably be expected to risk circumvention of the law
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`
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`3 As we have explained:
`The Vaughn index procedure was developed to avoid the cumbersome
`alternative of routinely having a district court examine numerous multi-
`page documents in camera to make exemption rulings. See Vaughn v. Rosen,
`484 F.2d 820, 825 (D.C. Cir. 1973). . . . A Vaughn index typically lists the
`titles and descriptions of the responsive documents that the Government
`contends are exempt from disclosure. In some cases detailed affidavits
`from agency officials may suffice to indicate that requested documents are
`exempt from disclosure.
`N.Y. Times Co. v. U.S. Dep't of Just., 758 F.3d 436, 438–39 (2d Cir.), supplemented by
`762 F.3d 233 (2d Cir. 2014) (footnotes omitted).
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`12
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`because terrorists and other bad actors could use it to conceal
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`derogatory information, provide fraudulent information, or
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`otherwise circumvent the security checks put in place to ensure
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`that terrorists and other bad actors cannot gain visas into the
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`United States.” Id. at 68.
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`• Three versions of 9 FAM 40.32. DOS redacted three versions
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`of 9 FAM 40.32, which it reports are “earlier iterations of
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`sections that are now incorporated into 9 FAM 302.6.” Id. As
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`with 9 FAM 302.6, DOS provided an explanation for each
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`redaction. It provided the same conclusion for withholding as
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`with 9 FAM 302.6 (that is, disclosure could allow terrorists or
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`other bad actors to circumvent the law).
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`• One version of 9 FAM 302.14. DOS made several redactions to
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`one version of 9 FAM 302.14, titled “Ineligibility Based on
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`Sanctioned Activities.” Id. at 69. It asserted that the redacted
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`portions “disclose law enforcement investigation techniques,
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`13
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`procedures, and guidelines” about several topics. Id. For
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`example,
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`it stated that the redacted portions
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`included
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`“guidelines for conducting the security investigation process,
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`including whether certain procedures are mandatory, and
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`what information to include in a request for those procedures.”
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`Id.
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`The district court held that 9 FAM was not “‘compiled for law
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`enforcement purposes’ even if some sections of the FAM may serve
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`those purposes.” Knight First Amend. Inst. at Columbia Univ. v. U.S.
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`Dep’t of Homeland Sec., 407 F. Supp. 3d 311, 332 (S.D.N.Y. 2019)
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`(“Knight I”). Because DOS is a “mixed-function agency” performing
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`both administrative and law enforcement functions, the court
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`explained it would “‘scrutinize with some skepticism the particular
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`purpose claimed for disputed documents redacted under FOIA
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`14
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`Exemption 7.’” Id. (quoting Tax Analysts v. IRS, 294 F.3d 71, 77 (D.C.
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`Cir. 2002)).4
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`First, the district court noted that some of the redacted portions
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`fell within the “Definitions” section of 9 FAM and that that section
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`appeared to derive from definitions included in the INA. Id. at 332–
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`33. The district court thus held that “[t]he similarity between the
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`withheld information and the INA’s text . . . suggests Exemption 7(E)
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`does not apply.” Id. at 333.
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`Second, DOS admitted that the FAM “generally consists of
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`policy.” The district court agreed, observing that “mere descriptions
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`of codified law and policy, even those including interpretation and
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`application of immigration laws and regulations, are not protected
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`under Exemption 7(E).” Id. at 333 (internal quotation marks and
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`citations omitted). Rather, “[t]o be ‘compiled for law enforcement
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`4 We have frequently noted the District of Columbia Circuit’s “particular FOIA
`expertise” and looked to its decisions for guidance in interpreting the FOIA. See,
`e.g., Whitaker v. Dep’t of Commerce, 970 F.3d 200, 206 & n.25 (2d Cir. 2020).
`
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`15
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`purposes,’ the information must go a step further and describe
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`‘proactive steps’ for preventing criminal activity and maintaining
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`security.” Id. (quoting Milner v. Dep’t of the Navy, 562 U.S. 562, 582
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`(2011) (Alito, J., concurring)).
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`Finally, the court noted that some records appeared to contain
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`“interpretive information” which DOS characterized as “guidelines,”
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`and held that this type of interpretive document falls outside of
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`Exemption 7(E). Id. For example, DOS’s description of 9 FAM 302.6-
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`3(B) explained that it included “guidelines for situations in which an
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`individual may cease to be inadmissible.” Id. (internal quotation
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`marks omitted). The court held that it was not clear “how explaining
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`to the public what may constitute grounds for inadmissibility—
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`essentially a legal interpretation—may potentially help an individual
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`circumvent the law.” Id.
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`16
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`Based on the above conclusions, the district court ordered
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`disclosure of the unredacted versions of the three 9 FAM sections at
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`issue. Id.
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`B.
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`Terrorism-Related Inadmissibility Ground Questions
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`Next, Knight requested “[a]ll records containing policies,
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`procedures, or guidance regarding the application or waiver of the
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`endorse or espouse provisions or the foreign policy provision.” Joint
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`App’x at 39. In response, USCIS disclosed several presentation slides,
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`training manuals, and other guides. In some documents, USCIS
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`redacted “model or sample questions for immigration officers to use
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`when screening applicants.” Id. at 552. The questions are intended to
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`help determine, for example, “whether an applicant provides
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`material support for terrorism, and to determine whether an
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`applicant provides support to a terrorist organization under duress.”
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`Id. The agency explained that the process for asking the questions is
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`dynamic. The withheld material includes not only “TRIG specific
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`17
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`model questions that USCIS immigrations officers should ask when
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`interviewing applicants,” but also “follow-up questions that
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`immigration officers should ask when they spot issues in testimony
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`that could trigger a TRIG bar.” Joint App’x at 181–82.
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`USCIS asserted that the TRIG questions “reflect specialized
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`methods that USCIS has refined through its decades of enforcing
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`United States immigration laws.” Id. The agency asserted that the
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`TRIG questions were therefore exempt from disclosure under
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`Exemption 7(E).
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`The district court concluded that the TRIG questions were not
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`“special or technical.” Knight First Amend. Inst. at Columbia Univ. v.
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`U.S. Dep’t of Homeland Sec., 407 F. Supp. 3d 334, 353 (S.D.N.Y. 2019)
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`(“Knight II”). It also explained that those questioned using the TRIG
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`questions would necessarily learn the questions, and “USCIS
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`submit[ted] no evidence suggesting its methods are so special that
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`interviewees cannot parrot them to whomever they choose.” Id. at
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`18
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`354. The court therefore concluded that Exemption 7(E) did not
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`apply. Id.
`
`C. Memorandum Titled “ICE Ability to Use 212(a)(3)(C)
`Foreign Policy Charge”
`
`Knight made several requests for legal or policy memoranda
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`
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`related to the foreign policy provision. ICE identified as responsive a
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`memorandum titled “ICE Ability to Use 212(a)(3)(C) Foreign Policy
`
`Charge.” It redacted the memorandum in full except for the title.
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`ICE stated that the memorandum “contains information
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`protected by the attorney-client privilege. The materials reflect
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`opinions, analysis, guidance and legal advice provided by attorneys
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`in the ICE Office of the Principal Legal Advisor (OPLA), regarding a
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`particular section of the INA.”5 Joint App’x at 249. In a separate
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`declaration submitted in support of summary
`
`judgment, ICE
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`supplemented its description, further stating that the memo “includes
`
`
`5 ICE initially claimed attorney-client privilege over the memo but withdrew that
`assertion during summary judgment proceedings. Appellants’ Br. at 13 n.4.
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`19
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`
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`a brief summary with notes and quotes for determining whether
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`Section 212(a)(3)(C) can be used by the Secretary of State as grounds
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`for inadmissibility.” Joint App’x at 563. It asserted that “th[e]
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`document did not bind the agency[,]” was “not organized like typical
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`ICE memoranda[,] and [was] not signed by or formally addressed to
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`ICE leadership. The memorandum simply supplie[d] factors for
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`consideration while providing analysis on whether the Secretary of
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`State should use Section 212(a)(3)(C) Foreign Policy Charge to render
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`an alien inadmissible under the INA.” Id. Thus, ICE withheld the
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`memo under Exemption 5 and the deliberative process privilege.6
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`The district court found that ICE had failed to establish that the
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`ICE memo was subject to the deliberative process privilege through
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`Exemption 5. Specifically, the court found the document was not
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`“pre-decisional” because ICE did not show that the memo “‘formed
`
`
`6 Exemption 5 provides that disclosure is not required for “inter-agency or intra-
`agency memorandums or letters that would not be available by law to a party
`other than an agency in litigation with the agency.” 5 U.S.C. § 552(b)(5).
`
`
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`20
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`
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`an essential link in a specific consultative process, reflects the
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`personal opinions of the writer rather than the policy of the agency,
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`[or] if released would inaccurately reflect or prematurely disclose the
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`views of the agency.’” Knight II, 407 F. Supp. 3d at 345 (quoting
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`Brennan Ctr. for Just. at N.Y. Univ. Sch. of Law v. U.S. Dep’t of Just., 697
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`F.3d 184, 202 (2d Cir. 2012) (emphasis added by district court)). The
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`memo appeared “more akin to opinions regarding how to interpret
`
`policy rather than recommendations as to how to make policy.” Id. It
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`was therefore “post-decisional explanation” rather than “pre-
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`decisional advice” and fell outside of Exemption 5. Id. (internal
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`quotation marks omitted). The district court therefore directed ICE to
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`“disclose reasonably segregable portions of [the ICE memo] that
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`reflect current immigration policy.” Id. at 345–46.
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`D. Motion for Reconsideration
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`After the district court decided Knight I and Knight II, DOS and
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`USCIS moved for reconsideration and clarification of the court’s
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`
`
`21
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`
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`decisions with respect to 9 FAM and the TRIG questions, respectively.
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`Knight First Amendement Inst. at Columbia Univ. v. U.S. Dep’t of
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`Homeland Sec., No. 1:17-CV-7572, 2020 WL 5512540, at *6 (S.D.N.Y.
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`Sept. 13, 2020) (“Knight III”). The agencies requested clarification as
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`to whether the district court intended to order immediate disclosure
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`of the records, or to provide the agencies an opportunity to further
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`justify the application of Exemption 7(E). Id. at *6. In the event that
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`the court intended to require immediate disclosure, the agencies
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`asked the court to reconsider and instead review the documents in
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`camera. Id.
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`The court clarified that it intended to order immediate
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`disclosure of the Exemption 7(E) documents and declined the
`
`invitation to conduct in camera review. Id. at *7–*8. It explained that
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`“DOS and USCIS submitted sufficiently detailed justifications for
`
`withholding the FAM sections and TRIG questions respectively,” but
`
`
`
`22
`
`
`
`that it “understood the agencies’ arguments and was not persuaded.”
`
`Id. at *8.
`
`DISCUSSION
`
`We review the grant of summary judgment de novo. See Long v.
`
`Off. of Pers. Mgmt., 692 F.3d 185, 191 (2d Cir. 2012).
`
`FOIA is premised on “a policy strongly favoring public
`
`disclosure of information in the possession of federal agencies.”
`
`Halpern v. F.B.I., 181 F.3d 279, 286 (2d Cir. 1999). Agencies are
`
`required to disclose requested documents unless they fall within an
`
`enumerated exemption. Id. at 286–87. “In order to prevail on a
`
`motion for summary judgment in a FOIA case, the defending agency
`
`has the burden of showing . . . that any withheld documents fall
`
`within an exemption to the FOIA.” Carney v. U.S. Dep’t of Just., 19 F.3d
`
`807, 812 (2d Cir. 1994). “Summary judgment is appropriate where the
`
`agency declarations describe the justifications for nondisclosure with
`
`reasonably specific detail, demonstrate that the information withheld
`
`
`
`23
`
`
`
`logically falls within the claimed exemption, and are not controverted
`
`by either contrary evidence in the record or by evidence of agency bad
`
`faith . . . . Thus, the agency’s justification is sufficient if it appears
`
`logical and plausible.” Am. C.L. Union v. U.S. Dep’t of Def., 901 F.3d
`
`125, 133 (2d Cir. 2018), as amended (Aug. 22, 2018) (cleaned up).
`
`I. Documents Withheld under FOIA Exemption 7(E)
`
`DOS withheld the 9 FAM records, and USCIS the TRIG
`
`questions, under FOIA Exemption 7(E). That exemption excludes
`
`documents from FOIA’s disclosure requirement if an agency satisfies
`
`two conditions. First, the agency must show that the records were
`
`“compiled for law enforcement purposes.” 5 U.S.C. § 552(b)(7).
`
`Second, the agency must show that the records either (1) “would
`
`disclose techniques and procedures for law enforcement investigations
`
`or prosecutions”; or (2) “would disclose guidelines for
`
`law
`
`enforcement investigations or prosecutions” and “such disclosure
`
`could reasonably be expected to risk circumvention of the law.” Id. at
`
`
`
`24
`
`
`
`§ 552(b)(7)(E) (emphasis added). Thus, to withhold “guidelines for
`
`law enforcement,” an agency must make an additional showing that
`
`is not required before withholding “techniques or procedures.”
`
`A. DOS established that the 9 FAM materials are exempt
`from disclosure under Exemption 7(E)
`
`Knight argues that DOS has failed to establish that the 9 FAM
`
`
`
`materials were “compiled for law enforcement purposes” or that they
`
`include “techniques or procedures” or “guidelines” for
`
`law
`
`enforcement whose disclosure would risk circumvention of the law.
`
`We disagree.
`
`1. The 9 FAM material was compiled for law
`enforcement purposes
`
`“The threshold requirement for qualifying under Exemption 7
`
`
`
`turns on the purpose for which the document sought to be withheld
`
`was prepared.” F.B.I. v. Abramson, 456 U.S. 615, 624 (1982). The
`
`Supreme Court has interpreted this requirement broadly. For
`
`example, a document initially compiled for law enforcement
`
`purposes but later provided to a different, non-law-enforcement
`
`
`
`25
`
`
`
`agency may still fall within Exemption 7. Id. at 624–25. Still, an
`
`agency that performs both administrative and law-enforcement
`
`functions is “subject to an exacting standard when it comes to the
`
`threshold requirement of Exemption 7.” Tax Analysts v. I.R.S., 294
`
`F.3d 71, 77 (D.C. Cir. 2002). DOS acknowledges that it is a “mixed-
`
`function” agency.
`
`Knight argues that 9 FAM was not compiled for law
`
`enforcement purposes because it was compiled “to help an agency
`
`apply the law—in this case to process visa applications,” which is “not
`
`a sufficient basis to conclude that the information was compiled to
`
`enforce the law.” Knight Br. at 29 (citing United Am. Fin., Inc. v. Potter,
`
`531 F. Supp. 2d 29, 46 (D.D.C. 2008)). But as Justice Alito has
`
`explained, “[t]he ordinary understanding of law enforcement
`
`includes not just the investigation and prosecution of offenses that
`
`have already been committed, but also proactive steps designed to
`
`prevent criminal activity and to maintain security.” Milner v. Dep't of
`
`
`
`26
`
`
`
`Navy, 562 U.S. 562, 582 (2011) (Alito, J., concurring). Enforcing the law
`
`always requires a degree of analysis and application. While some
`
`aspects of visa adjudication might fall outside the common
`
`understanding of “law enforcement,” the provisions at issue here do
`
`not. DOS’s explanations for its redactions clearly establish that the
`
`redacted provisions relate to the detection of connections to terrorism.
`
`See, e.g., Joint App’x at 67 (summarizing reason for redactions,
`
`including “defin[ing] terrorist activity, adding specific details and
`
`clarification about how they fit into the security investigation
`
`process.”). The detection and prevention of terrorism are archetypal
`
`law-enforcement purposes.
`
`The district court concluded that the 9 FAM documents were
`
`not compiled for law enforcement purposes because they included
`
`“mere descriptions of codified law and policy” and “to be compiled
`
`for law enforcement purposes, the information must go a step further
`
`and describe proactive steps for preventing criminal activity and
`
`
`
`27
`
`
`
`maintaining security.” Knight I, 407 F. Supp. 3d at 333 (internal
`
`quotation marks omitted). That view finds no support in the text of
`
`the exemption. The threshold inquiry under Exemption 7 is the
`
`reason for which material was compiled, and the material should be
`
`considered as a whole rather than broken into parts and scrutinized
`
`in isolation. While an agency’s discrete description of law and policy
`
`might not be subject to exemption in every context, when a larger
`
`series of descriptions is compiled to provide comprehensive guidance
`
`to employees in the field on how to apply and enforce the laws within
`
`the agency’s purview, that subsequent compilation enters the
`
`potential ambit of Exemption 7(E). An agency’s compilation of laws
`
`and policies might provide insight into its conduct and approaches to
`
`law enforcement even if it reveals no “proactive steps.” Such
`
`compilation might reveal the agency’s reliance on specific laws,
`
`reflecting the use of certain techniques or the limitations on the
`
`implementation of those techniques in the field. Certainly, records
`
`
`
`28
`
`
`
`that reflect only descriptions of publicly available statutes are less
`
`likely to create a risk of “circumvention of the law” if released. 5
`
`U.S.C. § 552(b)(7)(E). But that does not mean they were not “compiled
`
`for law enforcement purposes” in the first instance—only that they
`
`might not meet the requirements of Exemption 7(E) at the second
`
`step. Here, DOS has established that 9 FAM includes specific
`
`guidance to DOS employees on how to detect ties to terrorism. We
`
`conclude, therefore, that it was “compiled for law enforcement
`
`purposes” within the meaning of Exemption 7(E).
`
`2. The 9 FAM materials would disclose techniques,
`procedures, or guidelines for enforcement
`
`Knight next argues that, even if the records were “compiled for
`
`law enforcement purposes,” some of DOS’s redactions fall outside
`
`Exemption 7(E) because they do not cover material reflecting
`
`techniques or procedures for law enforcement investigations or
`
`prosecutions. Knight contends that the non-redacted portions of 9
`
`FAM include only high-level summaries rather than techniques or
`
`
`
`29
`
`
`
`procedures. Some of the material “appears to consist of definitions
`
`and explanations of statutory language.” Knight Br. at 34. And
`
`“some of the withheld materials appear to summarize publicly
`
`available statutes, memoranda, and directives.” Knight Br. at 36.
`
`With each assertion, though, Knight asks us to draw inferences about
`
`the redacted material from context that are contradicted by DOS’s
`
`affidavits and Vaughn index. On summary judgment, we accept an
`
`agency’s affidavits as true unless they are “controverted by either
`
`contrary evidence in the record or by evidence of agency bad faith.”
`
`Am. C.L. Union, 901 F.3d at 133 (internal quotation marks and
`
`alteration omitted).
`
` Accordingly, we cannot credit Knight’s
`
`contentions about what the 9 FAM redactions “appear” to include in
`
`the face of an agency affidavit attesting to what they actually do
`
`include, particularly in the absence of evidence of bad faith. In any
`
`event, we are not persuaded that Knight’s proposed inferences from
`
`context are reasonable. For example, Knight asserts it is “unlikely”
`
`
`
`30
`
`
`
`that redactions include more information than in publicly available
`
`sources because the redactions are relatively short. Knight Br. at 37.
`
`But DOS’s Vaughn index expl
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