 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued September 25, 2015         Decided February 12, 2016

                        No. 14-5215

                   JUDICIAL WATCH, INC.,
                        APPELLANT

                             v.

          UNITED STATES DEPARTMENT OF JUSTICE,
                       APPELLEE


        Appeal from the United States District Court
                for the District of Columbia
                    (No. 1:13-cv-01344)


    Michael Bekesha argued the cause and filed the briefs for
appellant.

     Gerard J. Sinzdak, Attorney, U.S. Department of Justice,
argued the cause for appellee. With him on the brief were
Ronald C. Machen Jr., U.S. Attorney at the time the brief was
filed, and Michael S. Raab, Attorney.

    Before: PILLARD and WILKINS, Circuit Judges, and
GINSBURG, Senior Circuit Judge.

    Opinion for the Court filed by Senior Circuit Judge
GINSBURG.
                              2
     GINSBURG, Senior Circuit Judge: Judicial Watch, an
organization that aims “to educate the public about the
operations and activities of government,” sent a Freedom of
Information Act (FOIA) request to the Department of Justice
seeking records of the Department’s settlement discussions in
an ongoing lawsuit. The Department denied the request on
the ground that the requested documents had been placed
under seal by the district court (Jackson, J.) in a prior
proceeding. Judicial Watch sued to compel disclosure, the
district court (Leon, J.) granted summary judgment for the
Department, and Judicial Watch appealed to this court. We
vacate the judgment of the district court, and remand this case
so the Department can seek clarification from Judge Jackson
about the intended effect of her purported sealing order.

                      I. Background

     In October 2011, the House Committee on Oversight and
Government Reform subpoenaed Attorney General Eric
Holder for documents related to the “Fast and Furious”
operation conducted by the Bureau of Alcohol, Tobacco,
Firearms and Explosives (ATF). Comm. on Oversight and
Gov’t Reform v. Holder, 979 F. Supp. 2d 1, 4 (D.D.C. 2013).
“Fast and Furious” refers to a series of “gunwalking”
operations in which the ATF knowingly allowed firearms
dealers in Arizona to sell to “straw” purchasers – buyers
acting on behalf of others who legally could not purchase a
gun - in hopes of tracking the guns to Mexican drug cartels,
but the program was unsuccessful and, once it became public,
very controversial. Id. at 5.

     When the Attorney General refused to produce some of
the subpoenaed records on the ground of executive privilege,
the House Committee sued to enforce its subpoena. Id. at 3.
The case came before District Judge Amy Berman Jackson,
                               3
who encouraged the parties to discuss a settlement but
declined to involve herself in any settlement negotiations. Tr.
of 1/10/13 Status Conf., at 8, Holder, No. 12-cv-1332.
Specifically, after referring to then-ongoing settlement
discussions, Judge Jackson stated, “I don’t know what you
said. I don’t want to know.” Id.

     Instead, Judge Jackson noted on multiple occasions that
the case would be a good candidate for mediation and that a
senior district judge had agreed to serve as a neutral mediator.
See, e.g., id. at 8-9. The judge indicated she would order
mediation if the parties requested it and possibly even if they
did not. Id. at 11. Finally, on March 18, 2013, at the
Department’s request, Judge Jackson referred the case to
mediation.

    Two days later, Judicial Watch made a FOIA request of
the Department seeking:

       Any and all records of communications,
       correspondence, and contacts between the
       Department of Justice and the House
       Committee on Oversight and Government
       Reform concerning or relating to a
       settlement in Committee on Oversight and
       Government Reform v. Holder, 1:12-cv-
       01332, U.S. District Court, District of
       Columbia (Washington).          Such records
       include, but are not limited to, records of the
       settlement discussions themselves.

The request covered all such records created between October
1, 2012, and March 20, 2013. The Department located eight
responsive documents comprising 32 pages, but on May 3,
2012, it refused to release them, explaining:
                               4

       All of the information responsive to your
       request is withheld in full. . . . [T]he
       information is, among other things, subject
       to      court-imposed       non-disclosure
       requirements.     Accordingly, the Civil
       Division is prohibited from releasing this
       information to you.

Judicial Watch filed an administrative appeal with the
Department’s Office of Information Policy, which affirmed
the initial denial.

     On September 5, 2013, Judicial Watch sued the
Department in the district court, seeking the same eight
documents. The parties cross-moved for summary judgment,
and the district court, through Judge Leon, held in favor of the
Department on the ground that the Department lacked
discretion to release the responsive documents. See Judicial
Watch, Inc. v. United States Dep’t of Justice, 65 F. Supp. 3d
50 (D.D.C. 2014). Specifically, Judge Leon held Judge
Jackson’s remark at the January 10, 2013 status conference in
the predicate House Committee litigation – “I don’t know
what you said. I don’t want to know.” – was “an explicit
statement from Judge Jackson instructing the parties to keep
the substance of their settlement discussions private,” so
“there can be no doubt that there was a valid court-imposed
restriction prohibiting disclosure.” Id. at 56. Alternatively,
the court concluded that disclosure was prohibited by the
district court’s Local Civil Rule 84.9, which prohibits
disclosure of “any written or oral communications made in
connection with or during any mediation session.” Id. at 55.
Judicial Watch then brought this appeal.
                               5
                       II. Analysis

     The FOIA generally gives members of the public the
right to access records held by the federal government. The
statute gives federal courts jurisdiction to compel production
of records if an agency has “(1) improperly (2) withheld (3)
agency records.” GTE Sylvania, Inc. v. Consumers Un. of the
United States, Inc., 445 U.S. 375, 384 (1980) (describing 5
U.S.C. § 552(a)(4)(B)). An agency is not required to produce
a responsive record if the record comes within any of the nine
statutory exemptions. See 5 U.S.C. § 552(b). In addition,
withholding a record the disclosure of which a court has
enjoined is not “improper”: “There simply [is] no discretion
for the agency to exercise” in such cases. GTE Sylvania, 445
U.S. at 386; see also id. at 387 (explaining that the Congress
did not intend to require an agency “to commit contempt of
court in order to release documents”). We review de novo the
district court’s grant of summary judgment in a FOIA case.
Sussman v. United States Marshals Serv., 494 F.3d 1106,
1111-12 (D.C. Cir. 2007).

A. Judge Jackson’s Sealing Order

     The test for determining whether an agency has
improperly withheld records placed under seal by a court is
“whether the seal, like an injunction, prohibits the agency
from disclosing the records.” Morgan v. United States Dep’t
of Justice, 923 F.2d 195, 197 (D.C. Cir. 1991). That test
requires us to examine (1) any explicit sealing order from the
court, if there is one; (2) extrinsic evidence about the intended
scope of a purported sealing order; (3) orders of the same
court in similar circumstances; and (4) the issuing court’s
general rules or procedures. See id. at 197-98.               The
government has the burden of proving an order prohibits
disclosure. See id. at 198.
                               6

     The government has not carried its burden in this case.
First, Judge Jackson’s statement, “I don’t want to know,”
clearly bars the parties from divulging the contents of their
settlement discussions only to her; a broader bar, if any,
would have to be inferred for it is not explicit. The
Department offers a good reason Judge Jackson might have
wanted to prohibit disclosure to third-parties – because
protection from disclosure promotes more open dialogue
during settlement – but there is no extrinsic evidence that was
what the judge intended; indeed, that concern is nowhere
mentioned in the record in this case, and it is equally plausible
that Judge Jackson wanted simply to preserve her objectivity
in case she ultimately were to preside over a trial. Nor has the
Department pointed to extrinsic evidence, such as information
that the district court customarily protects the confidentiality
of settlement discussions before a case is referred to
mediation, that supports its preferred reading. Accordingly,
the intended effect of Judge Jackson’s order is ambiguous.

     An ambiguous court order does not protect a record from
disclosure pursuant to the FOIA. In Morgan, a criminal
defendant alleged the prosecution had suppressed exculpatory
handwritten notes of an interview with a witness. 923 F.2d at
195-96. After denying Morgan’s motion for a new trial, the
district court added the notes to the record but sealed them,
and the Fourth Circuit affirmed the sealing order. The
defendant then filed a FOIA request with the Department, and
when that was denied, brought a lawsuit in the district court
here in D.C., which dismissed his FOIA action on the ground
that it was an impermissible collateral attack on the decision
of the Fourth Circuit. On appeal, we explained that “whether
Morgan’s FOIA litigation is an impermissible collateral attack
on the sealing order depends on the intended effect of the
sealing order.” Id. at 198. Because such intent was not
                               7
evident from the record, we remanded the matter for further
proceedings. At the same time, we recognized that

       it may be impossible to determine the scope
       and effect of the seal from the face of the
       seal and the circumstances attending its
       imposition. Thus, in order to meet its
       burden of proof, the DOJ may need to seek a
       clarification from the court that issued the
       seal.

Id. The same situation obtains here.

    At oral argument, Judicial Watch raised no objection to
our remanding the case for clarification and acknowledged
that Judge Jackson’s explanation would be dispositive.
Accordingly, we vacate the judgment of the district court and
remand this matter to Judge Leon in order to give the
Department an opportunity to seek clarification from Judge
Jackson regarding the intended effect and scope of her order.
See, e.g., Awan v. United States Dep’t of Justice, 46 F. Supp.
3d 90, 92 (D.D.C. 2014) (denying a FOIA request after the
defendants produced an order from the issuing court
confirming that the document in question was sealed). The
district court shall “stay[] its hand . . . to allow a reasonable
period of time for the DOJ to seek a clarification,” and for “so
long as the DOJ is diligently pursuing [it].” Id.

B. Local Rule 84.9

    The district court held, in the alternative, that disclosure
was prohibited by its Local Rule 84.9:

       The Court hereby prohibits the mediator, all
       counsel and parties and any other persons
                                 8
        attending the mediation from disclosing any
        written or oral communications made in
        connection with or during any mediation
        session.

      According to the district court, the requested
communications were “made in connection with” mediation,
even though the case had not yet been referred to the court’s
mediation program. Judicial Watch, 65 F. Supp. 3d at 55.
This interpretation of the rule presents difficult questions. On
the one hand, a district court’s interpretation of its own rules
is, as the Department argues, entitled to deference. See Texas
v. United States, 798 F.3d 1108, 1115 n.2 (D.C. Cir. 2015)
(“Every circuit . . . defers to their district courts’ interpretation
. . . of local rules. The federal court system could not fairly
function otherwise.”) (internal citations omitted). On the
other hand, Local Rule 84(b) explicitly provides that “[t]hese
Rules apply only to mediation proceedings that are formally
conducted through the United States District Court’s
Mediation Program.” Further, it is not established whether
Local Rule 84.9, if it applies, would resolve the FOIA
question because local rules do not clearly fit within a
recognized FOIA exemption.

     Resolution of this apparent conflict may be unnecessary
depending upon whether Judge Jackson intended her order to
bar disclosure. Accordingly, we need not resolve the question
now and depending upon further proceedings in the district
court, may not have to do so later.
                            9
                     III. Conclusion

    This case is remanded to the district court for further
proceedings consistent with the foregoing opinion.

                                       So Ordered.
