FOR PUBLICATION
`
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`ERIC ANTHONY GARRIS,
`Plaintiff-Appellant,
`
`v.
`
`FEDERAL BUREAU OF
`INVESTIGATION,
`Defendant-Appellee.
`
`No. 18-15416
`
`D.C. No.
`CV 13-02295 JSC
`
`OPINION
`
`Appeal from the United States District Court
`for the Northern District of California
`Jacqueline Scott Corley, Magistrate Judge, Presiding
`
`Argued and Submitted June 12, 2019
`Anchorage, Alaska
`
`Filed September 11, 2019
`
`Before: A. Wallace Tashima, William A. Fletcher,
`and Marsha S. Berzon, Circuit Judges.
`
`Opinion by Judge Tashima
`
`
`
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`ERIC ANTHONY GARRIS,
`Plaintiff-Appellant,
`
`v.
`
`FEDERAL BUREAU OF
`INVESTIGATION,
`Defendant-Appellee.
`
`No. 18-15416
`
`D.C. No.
`CV 13-02295 JSC
`
`OPINION
`
`Appeal from the United States District Court
`for the Northern District of California
`Jacqueline Scott Corley, Magistrate Judge, Presiding
`
`Argued and Submitted June 12, 2019
`Anchorage, Alaska
`
`Filed September 11, 2019
`
`Before: A. Wallace Tashima, William A. Fletcher,
`and Marsha S. Berzon, Circuit Judges.
`
`Opinion by Judge Tashima
`
`
`
`2
`
`GARRIS V. FBI
`
`SUMMARY*
`
`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
`
`* This summary constitutes no part of the opinion of the court. It has
`been prepared by court staff for the convenience of the reader.
`
`
`
`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.
`
`COUNSEL
`
`Vasudha Talla (argued), American Civil Liberties Union
`Foundation of Northern California Inc., San Francisco,
`California, for Plaintiff-Appellant.
`
`Lewis 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
`Defendant-Appellee.
`
`Adam Gershenson, Cooley LLP, Boston, Massachusetts;
`David Houska and Maxwell Alderman, Cooley LLP, San
`Francisco, California; for Amicus Curiae First Amendment
`Coalition.
`
`
`
`GARRIS V. FBI
`
`4 A
`
`iden 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.
`
`Aaron Mackey, Camille Fischer, and Adam Schwartz,
`Electronic Frontier Foundation, San Francisco, California, for
`Amicus Curiae Electronic Frontier Foundation.
`
`OPINION
`
`TASHIMA, Circuit Judge:
`
`Plaintiff-Appellant 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.
`
`Garris 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
`
`
`
`GARRIS V. FBI
`
`5
`
`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 enforcement activity.
`
`FACTUAL AND PROCEDURAL BACKGROUND
`
`I. Factual Background
`
`Garris is the founder, managing editor, and webmaster of
`Antiwar.com.1 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
`
`1 Joseph “Justin” Raimondo, the editorial director of Antiwar.com,
`was also a plaintiff-appellant in this action but died during the pendency
`of this appeal. His appeal has been dismissed. Accordingly, Garris is the
`only remaining plaintiff-appellant.
`
`
`
`GARRIS V. FBI
`
`6 a
`
`nd peace, diplomacy, foreign policy, and national security,
`as an alternative to mainstream media sources.
`
`A. The FBI’s 2004 Threat Assessment Memo
`
`In 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.
`
`This 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.
`
`The FBI 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
`
`
`
`GARRIS V. FBI
`
`7
`
`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.
`
`In a 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.”2 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.”
`
`The 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
`
`2 The analyst comments also stated that “Eric Garris has shown intent
`to disrupt FBI operations by hacking the FBI website.” FBI disclosures
`show that the allegation that Garris threatened to hack the FBI was
`erroneous and the result of a mistake made by an FBI agent; the charge
`arose from Garris’ having forwarded to the FBI a hacking threat that
`Antiwar.com had received.
`
`
`
`GARRIS V. FBI
`
`8 t
`
`he threat of compromising current FBI investigations,” and
`noting that Garris “[was] exercising [his] constitutional right
`to free speech.”
`
`Garris 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.
`
`B. The FBI’s 2006 Halliburton Memo
`
`In 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 had posted information
`regarding the shareholders’ meeting, of which Antiwar.com
`was one. Garris learned of the Memo during this litigation.
`
`II. Procedural Background
`
`In October 2011, following his discovery of the redacted
`2004 Memo, Garris filed Freedom of Information Act
`(“FOIA”), 5 U.S.C. § 552, and Privacy Act requests seeking
`disclosure of FBI records about him. After exhausting his
`administrative remedies, on May 21, 2013, Garris filed this
`
`
`
`GARRIS V. FBI
`
`9
`
`action seeking disclosure of documents under FOIA and the
`Privacy Act. Separately, he filed requests with the FBI
`pursuant to 5 U.S.C. §§ 552a(e)(7) and (d)(2) of the Privacy
`Act, seeking expungement of all records maintained by the
`FBI describing his exercise of his First Amendment rights.
`The FBI ultimately denied Garris’ administrative requests for
`expungement of records.
`
`Garris subsequently filed his First Amended Complaint,
`adding, as relevant here, a claim alleging that the FBI’s
`creation and maintenance of the 2004 Memo violates
`§ 552a(e)(7) of the Privacy Act, which provides that an
`agency shall not maintain any “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).
`
`In July of 2015, Garris issued deposition subpoenas for
`the two retired FBI agents who had written the 2004 Memo.
`The FBI moved for a protective order to preclude the
`depositions, arguing that depositions are not necessary to
`decide summary judgment in Privacy Act § (e)(7) cases; that
`the evidence would be duplicative of the FBI’s interrogatory
`responses and the previously provided redacted files; that it
`would burden the non-party officers; and that the evidence
`would be irrelevant.
`
`The district court granted the FBI’s motion “without
`prejudice to Plaintiffs’ renewal of their request for additional
`targeted discovery following receipt of Defendant’s Motion
`for Summary Judgment.” At the hearing on the topic, the
`court reasoned that it would be premature to depose the
`former agents before learning what evidence the government
`
`
`
`10
`
`GARRIS V. FBI
`
`would rely on, particularly given that it would be burdensome
`to the retired agents. Garris did not renew his request.
`
`The parties then filed cross motions for summary
`judgment on Garris’ FOIA disclosure claims and claims
`under the Privacy Act, covering, as relevant to this appeal,
`expungement of the 2004 Memo and its attachments. In
`support of its motion for summary judgment, the FBI
`submitted the declaration of Andrew Campi, an “Assistant
`Special Agent in Charge” of the FBI, who was currently
`assigned to the Newark office (“the Campi Declaration”) and
`stated that the 2004 Memo was created to protect national
`security. Garris responded in his cross-motion for summary
`judgment that the FBI should be precluded from relying on
`the Campi Declaration because Campi was not at the Newark
`field office at the time the Memo was compiled and therefore
`lacked personal knowledge of the reason it was compiled.
`
`The district court denied both parties’ motions with
`respect to Garris’ disclosure claims under FOIA and the
`Privacy Act, but granted summary judgment to the FBI on
`Garris’ Privacy Act § (e)(7) claim for expungement of the
`2004 Memo. The court also overruled Garris’ objections to
`the Campi Declaration.
`
`Because of Garris’ surviving disclosure claims, the FBI
`released further documents. Based on these documents,
`Garris moved for reconsideration of the district court’s order
`granting summary judgment to the FBI on his § (e)(7) claim,
`arguing that new documents produced by the FBI impacted
`the pertinence of the 2004 Memo to an authorized law
`enforcement activity. He also argued that two recently
`produced documents gave rise to claims under § (e)(7),
`including, as relevant here, the Halliburton Memo, reasoning
`
`
`
`GARRIS V. FBI
`
`11
`
`that the Halliburton Memo’s inclusion of Antiwar.com in its
`list of publicizing sources violated the Privacy Act and
`requesting expungement. The district court denied his motion
`for reconsideration regarding the 2004 Memo in part, and
`ordered further briefing on Garris’ arguments regarding the
`Halliburton Memo.
`
`Both parties then filed motions for summary judgment
`regarding the Halliburton Memo. The FBI submitted a
`declaration from Agent Bujanda, the Assistant Special Agent
`in Charge for National Security, in which Bujanda stated that
`the Halliburton Memo documented the FBI’s collaboration
`with local law enforcement to prepare for public safety
`concerns. Garris objected to the declaration on personal
`knowledge and hearsay grounds. Over these objections, the
`district court granted summary judgment to the FBI,
`concluding that the Halliburton Memo’s purpose was to
`protect public safety and that it therefore fell under the law
`enforcement activities exception.
`
`The parties settled the remaining disclosure issues, and
`the district court entered judgment on January 12, 2019.
`Garris timely appealed his Privacy Act claims.
`
`STANDARD OF REVIEW
`
`This court reviews a grant of summary judgment de novo.
`MacPherson v. IRS, 803 F.2d 479, 480 (9th Cir. 1986).
`“Summary judgment is appropriate when, viewing the
`evidence in the light most favorable to the non-movant, there
`is no genuine issue of material fact,” Frudden v. Pilling,
`877 F.3d 821, 828 (9th Cir. 2017), the substantive law was
`correctly applied, MacPherson, 803 F.2d at 480, and the
`movant is entitled to judgment as a matter of law.
`
`
`
`12
`
`GARRIS V. FBI
`
`We review evidentiary decisions for abuse of discretion,
`Block v. City of Los Angeles, 253 F.3d 410, 416 (9th Cir.
`2001), including a lower court’s decision to grant a protective
`order, In re Roman Catholic Archbishop of Portland in Or.,
`661 F.3d 417, 423 (9th Cir. 2011). “A court abuses its
`discretion when it fails to identify and apply the correct legal
`rule to the relief requested, or if its application of the correct
`legal standard was (1) illogical, (2) implausible, or
`(3) without support in inferences that may be drawn from the
`facts in the record.” Id. (citations and quotation marks
`omitted).
`
`DISCUSSION
`
`I. Discovery and Evidentiary Challenges
`
`A. Protective Order
`
`The district court did not abuse its discretion in granting
`a protective order to the FBI precluding Garris from deposing
`certain retired FBI agents. The district court granted the
`FBI’s motion for a protective order without prejudice,
`reasoning that it would be premature to depose the former
`agents before learning what evidence the government would
`rely on, given that it would be burdensome to the retired
`agents. The court specifically explained that Garris could
`renew his request for discovery once the government filed a
`motion for summary judgment. But Garris did not renew
`deposition requests in his first summary judgment motion, in
`his motion for reconsideration, or in his second motion for
`summary judgment. Because the district court “only delayed
`[Garris’] discovery until after the government filed its
`summary judgment motion, and [Garris] never requested
`additional discovery to respond to that motion under Fed. R.
`
`
`
`GARRIS V. FBI
`
`13
`
`Civ. P. 56(f),” the district court did not abuse its discretion.
`Lane v. Dep’t of Interior, 523 F.3d 1128, 1135 (9th Cir.
`2008). And, because Garris “failed to follow the proper
`procedures, it was within the district court’s discretion to
`rule” on the claim at summary judgment. Id.
`
`We note that the district court granted the protective order
`without determining if there was “good cause,” as is usually
`required, Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th
`Cir. 1975), on the basis that in FOIA and Privacy Act
`disclosure cases, it is generally accepted that discovery is
`limited and that courts may defer discovery until after
`summary judgment without abusing their discretion and
`without demonstrating specific “good cause.” See Lane,
`523 F.3d at 1134 (“[I]n FOIA and Privacy Act [disclosure]
`cases discovery is limited because the underlying case
`revolves around the propriety of revealing certain documents.
`Accordingly, in these cases courts may allow the government
`to move for summary judgment before the plaintiff conducts
`discovery.” (citation omitted)).
`
`Although the district court did not abuse its discretion in
`this case, going forward there is good reason to believe that
`the special consideration afforded to FOIA and Privacy Act
`disclosure cases—which involve a plaintiff’s request for
`documents to be released—should not apply to substantive
`Privacy Act cases—which involve the propriety of the
`creation of such documents by the agency in the first place,
`as well as their continued maintenance. See Lane, 523 F.3d
`at 1134–35 (explaining that discovery may have been
`warranted for Lane’s substantive Privacy Act claim because,
`“[u]nlike the FOIA claim or the access to records Privacy Act
`claim, the improper access Privacy Act claim did not revolve
`around the propriety of disclosing certain documents”).
`
`
`
`14
`
`GARRIS V. FBI
`
`B. Declarations
`
`Garris also argues that the district court abused its
`discretion by relying on the Campi and Bujanda Declarations.
`We address each in turn.
`
`1. Campi Declaration
`
`First, Garris contends that the court abused its discretion
`by relying on the Campi Declaration. We agree in part. For
`an affidavit to be admissible to support summary judgment,
`the affidavit must “be made on personal knowledge.” Fed. R.
`Civ. P. 56(e); Block, 253 F.3d at 419.
`
`We agree with Garris that the district court applied the
`wrong legal standard when it accepted the Campi Declaration
`in toto. Campi was employed by the FBI at the time the 2004
`Memo was written, but he did not work at the Newark office
`at the time or have any personal involvement with the threat
`assessment. Despite this, the district court accepted that
`Campi had adequate personal knowledge for all the
`statements in his declaration because “[c]ourts routinely deny
`hearsay and lack of personal knowledge objections in FOIA
`cases based on agency affidavits similar to those submitted
`here. . . . The same rationale applies equally here
`notwithstanding Plaintiffs’ assertion of Privacy Act claims in
`addition to the FOIA claims.” In doing so, the district court
`relied on Lahr v. Nat’l Transp. Safety Bd., which explained
`that “‘[a]n affidavit from an agency employee responsible for
`supervising a FOIA search is all that is needed to satisfy’ the
`personal knowledge requirement of Federal Rule of Civil
`Procedure 56(e).” 569 F.3d 964, 990 (9th Cir. 2009) (quoting
`Carney v. U.S. Dep’t of Justice, 19 F.3d 807, 814 (2d
`Cir.1994)).
`
`
`
`GARRIS V. FBI
`
`15
`
`This was error. The rule cited to by the district court is
`specific to FOIA disclosure cases and exempts agents’
`affidavits from the personal knowledge requirement. See,
`e.g., id. (allowing agent’s affidavit without personal
`knowledge because claim was a FOIA records request). But
`the rationale behind exempting agency affidavits from the
`personal knowledge requirement in FOIA disclosure cases
`does not translate to substantive Privacy Act cases. The
`purpose of agency affidavits in FOIA cases is to show
`“whether the agency’s search was ‘reasonably calculated to
`discover the requested documents,’” Maynard v. CIA,
`986 F.2d 547, 559 (1st Cir. 1993) (quoting Safecard Servs.,
`Inc. v. SEC, 926 F.2d 1197, 1201 (D.C. Cir.1991)), that is, the
`methodology of the search. It makes sense that a supervisor
`who did not personally perform the search would be able to
`testify to that, as the supervisor would be familiar with the
`method of storing, searching, and locating the agency’s
`records. In a § (e)(7) Privacy Act claim, however, Garris
`seeks to understand the FBI’s purpose in creating and
`maintaining the specific document. An agent without
`personal knowledge of these purposes can only speculate
`about it or rely on hearsay statements of other agents.
`
`The district court’s error was harmless, however, as to
`certain parts of Campi’s declaration, which were sufficiently
`based on personal knowledge. Campi had experience
`working as a special agent for the FBI and had reviewed the
`relevant documents,
`including
`the 2004 Memo and
`attachments. Consequently, the portions of his declaration
`discussing general FBI guidelines and procedures,
`summarizing information clear from the face of the 2004
`Memo, and analyzing the current relevance of the 2004
`Memos were within his personal knowledge as a seasoned
`
`
`
`16
`
`GARRIS V. FBI
`
`FBI agent. See Block, 253 F.3d at 419 (noting that personal
`knowledge could be based on review of documents).
`
`Those of Campi’s statements that go beyond those
`matters, however, are purely speculative and should not have
`been admitted. For example, Campi speculates after the fact
`that the Memo included various articles to “provide context,”
`and that Antiwar.com’s decision to post the watch list could
`have “led to the compromise of then ongoing investigations
`or alternatively lead to the harming or harassment of innocent
`people.” These statements were offered to explain why the
`2004 Memo was created, a fact of which Campi has no
`personal knowledge. Therefore, it was error for the district
`court to consider these statements.
`
`2. Bujanda Declaration
`
`As for the Bujanda Declaration, the district court did not
`abuse its discretion. First, unlike with the Campi Declaration,
`the district court correctly recognized that the FOIA-specific
`personal knowledge standard does not apply here—where a
`declaration is relied upon to establish the purpose of a
`historical document—and applied the traditional personal
`knowledge standard. Bujanda had been an FBI Special Agent
`since 2002, although he did not work in the Oklahoma Office
`until 2016, ten years after the Halliburton Memo was created.
`Therefore, like Campi, Bujanda had sufficient personal
`knowledge
`to opine on FBI policies,
`field office
`responsibilities, and information clear on the face of the
`Halliburton Memo. The declaration contains only one
`statement clearly beyond Bujanda’s personal knowledge:
`Bujanda
`relays hearsay
`regarding
`the Halliburton
`shareholders meeting and concludes
`that
`local
`law
`enforcement sought to ensure safety and preparedness for the
`
`
`
`GARRIS V. FBI
`
`17
`
`event as a result. The district court did not abuse its
`discretion in overruling Garris’ hearsay objections as to this
`statement, however, because the FBI certified at the hearing
`that it would be able to submit the hearsay evidence in an
`admissible form at trial. See JL Beverage Co., LLC v. Jim
`Beam Brands Co., 828 F.3d 1098, 1110 (9th Cir. 2016) (“at
`summary judgment a district court may consider hearsay
`evidence submitted in an inadmissible form, so long as the
`underlying evidence could be provided in an admissible form
`at trial”).
`
`II. Privacy Act § (e)(7) Claims
`
`Garris contends that the existence of the 2004 and
`Halliburton Memos violates the Privacy Act. The Privacy
`Act 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). This is commonly referred to as the “law
`enforcement activity” exception to § (e)(7). The question on
`appeal is whether the Memos fall within that exception.
`
`Garris argues that the FBI’s initial collection of the
`Memos was not pertinent to an authorized law enforcement
`activity and therefore violates the Act. Alternatively, he
`argues that, regardless of whether the creation of the Memos
`was justified under § (e)(7), because the investigations
`underlying
`the Memos have concluded,
`the FBI’s
`maintenance of the Memos is not pertinent to an authorized
`ongoing law enforcement activity and therefore violates the
`Act.
`
`
`
`18
`
`GARRIS V. FBI
`
`The question of whether the Privacy Act requires records
`to be pertinent to an ongoing law enforcement activity to be
`maintained is one of first impression in this Circuit. For the
`reasons described below, we hold that Privacy Act § (e)(7)
`prohibits the FBI from maintaining records describing First
`Amendment activity unless the maintenance of the record is
`pertinent to and within the scope of a currently ongoing
`authorized law enforcement activity. We further hold that the
`FBI has not carried its burden of demonstrating that the
`maintenance of the 2004 Memo is pertinent to an authorized
`law enforcement activity; therefore, it must be expunged.
`Because we so hold, we need not and do not address the
`question of whether the creation of the 2004 Memo also
`violated the Privacy Act. Finally, we hold that the FBI’s
`maintenance of the Halliburton Memo does not violate the
`Act.
`
`A. Ongoing Authorized Law Enforcement Activity
`Requirement
`
`Accordingly, we turn to the question of whether,
`assuming the creation of a record did not violate the Privacy
`Act, the Privacy Act prohibits the FBI from maintaining a
`record describing First Amendment activity if the record is
`not pertinent to ongoing authorized law enforcement activity.
`
`We begin by looking to the text of the Privacy Act.
`Section (e)(7) states that 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 statute defines “maintain” as “maintain,
`collect, use, or disseminate.” 5 U.S.C. § 552a(a)(3). The
`plain meaning of the word “maintain”is “[t]o keep up,
`
`
`
`GARRIS V. FBI
`
`19
`
`preserve.” Maintain, Oxford English Dictionary (3d ed.
`2000). And the plain meaning of the word “collect” is “to
`gather, get together.” Collect, Oxford English Dictionary
`(3d ed. 2000).
`
`We presume that, because Congress defined maintain to
`include “maintain” and “collect,” Congress intended the
`provision to apply to distinct activities. See Bailey v. United
`States, 516 U.S. 137, 146 (1995) (“We assume that Congress
`used two terms because it intended each term to have a
`particular, nonsuperfluous meaning.”). Therefore, we believe
`the plain meaning of the text is clear. The word maintain, as
`used in the Act, can be read as it is, or replaced with “collect”
`(or “use,” or “disseminate”). Therefore, an agency may not
`“maintain” a record describing how any individual’s
`protected First Amendment activity “unless pertinent to and
`within the scope of an authorized law enforcement activity.”
`5 U.S.C. § 552a(e)(7). And an agency may not “collect” a
`record describing any
`individual’s protected First
`Amendment activity “unless pertinent to and within the scope
`of an authorized law enforcement activity.” Id. Each act of
`an agency must be justified to fall under the § (e)(7)
`exception. Therefore, “to give each of these verbs its
`meaning,” the most reasonable reading of the statute as a
`whole is that the record must be pertinent to an authorized
`law enforcement activity both “at the time of gathering, i.e.,
`collecting, [and] at the time of keeping, i.e., maintaining.”
`J. Roderick MacArthur Found. v. FBI, 102 F.3d 600, 607
`(D.C. Cir. 1996) (Tatel, J., concurring in part and dissenting
`in part). That is, if the agency does not have a sufficient
`current “law enforcement activity” to which the record is
`pertinent, the agency is in violation of the Privacy Act if it
`keeps the record in its files.
`
`
`
`20
`
`GARRIS V. FBI
`
`The FBI contends that the plain meaning of the statute is
`that the law enforcement exception allows agencies to
`“collect” and to “maintain” records so long as they were
`pertinent to an authorized law enforcement activity at the
`time of collection, and that to hold otherwise would be to read
`a temporal limitation into the statute. But to accept the FBI’s
`preferred reading would be to read the word “maintain” out
`of the statute. If the FBI were right, Congress could have
`stated that “an agency shall ‘collect 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,’” or, “compiled for, and
`within the scope of, an authorized law enforcement activity.”
`Id. at 607 (alteration in original).
`
`Applying the same analysis to one of the other statutory
`definitions of maintain, “disseminate,” demonstrates why a
`reading that divorces the authorized law enforcement activity
`clause from the verb is untenable. The FBI’s proffered
`reading would have it such that an agency may “[disseminate]
`no record describing how any individual exercises rights
`guaranteed by the First Amendment unless . . . [the record] is
`pertinent to and within the scope of an authorized law
`enforcement activity.” 5 U.S.C. § 552a(e)(7). This would
`mean that, presuming the initial collection of the record was
`relevant to an authorized law enforcement activity, the
`agency could share the record, regardless of whether the
`sharing of the record was relevant to a law enforcement
`purpose. But a reading of § (e)(7) that would give blanket
`approval to an agency to disseminate a record strains
`credulity. And it would be even more odd for Congress to
`have
`included one definition
`that was superfluous
`(“maintain”) and one that was not (“disseminate”). The same
`is true for the verb “use,” 5 U.S.C. § 552a(a)(3), which is
`
`
`
`GARRIS V. FBI
`
`21
`
`clearly meant to regulate when an age
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