                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                               ______________

                                     No: 13-1704
                                   ______________

                           JOSEPH P. FRANKENBERRY,
                                              Appellant

                                           v.

                     FEDERAL BUREAU OF INVESTIGATION;
                        U.S. DEPTARTMENT OF JUSTICE

                                  _______________

                      Appeal from the United States District Court
                        For the Middle District of Pennsylvania
                                 (Civ. No. 3-08-cv-01565)
                      District Judge: Honorable A. Richard Caputo
                                     ______________

                      Submitted Under Third Circuit LAR 34.1(a)
                                 December 9, 2013

      Before: McKEE, Chief Judge, FUENTES and CHAGARES, Circuit Judges

                                 (Filed: May 15, 2014)
                                   ______________

                                      OPINION
                                   ______________

McKEE, Chief Judge.

      Joseph P. Frankenberry appeals the district court’s grant of summary judgment to

the Federal Bureau of Investigation on its withholding of information under Freedom of
Information Act (FOIA) exemptions. For the reasons that follow, we will affirm the

district court’s decision.

                                             I.

       As we write only for the parties who are familiar with the facts and procedural

history, we will set forth only those facts necessary to our conclusion.1

       We apply a two-tiered test when reviewing a district court’s order granting

summary judgment in proceedings seeking disclosure under FOIA. We must “first

decide whether the district court had an adequate factual basis for its determination.”

Abdelfattah v. U.S. Dep’t of Homeland Sec., 488 F.3d 178, 182 (3d Cir. 2007) (citations

omitted). If it did, we “must then decide whether that determination was clearly

erroneous.” Id. (citations omitted). We will reverse the district court’s decision only “if

the findings are unsupported by substantial evidence, lack adequate evidentiary support in

the record, are against the clear weight of the evidence or where the district court has

misapprehended the weight of the evidence.” Lame v. U.S. Dep’t of Justice, 767 F.2d 66,

69–70 (3d Cir. 1985).

                                             II.

       Congress passed FOIA “to facilitate public access to Government documents.”

U.S. Dep’t of State v. Ray, 502 U.S. 164, 173 (1991). To that end, government agencies

must surrender any records requested unless the information is exempt from disclosure




1
 The district court had jurisdiction over this case pursuant to 5 U.S.C. §§ 552(a)(4)(B)
and 701-706 and 28 U.S.C. § 1331. We have jurisdiction under 28 U.S.C. § 1291.

                                             2
under one of nine FOIA exemptions. Davin v. U.S. Dep’t of Justice, 60 F.3d 1043, 1049

(3d Cir. 1995); see also 5 U.S.C. § 552(b)(1)–(9) (2012) (listing the exemptions).

                                               A.

         Frankenberry claims that the district court erred in granting summary judgment to

the FBI on exemption 5 U.S.C. § 552(b)(7)(C). Under Exemption 7(C), an agency is not

required to disclose records or information compiled for law enforcement purposes that

“could reasonably be expected to constitute an unwarranted invasion of personal

privacy.” 5 U.S.C. § 552(b)(7)(C). When a government agency claims Exemption 7(C),

the court must “weigh[] the privacy interest and the extent to which it is invaded, on the

one hand, against the public benefit that would result from disclosure, on the other.”

Ferri v. Bell, 645 F.2d 1213, 1217 (3d Cir. 1981).

         A district court must first determine whether a privacy interest exists. Individuals

involved in a criminal investigation possess a privacy interest “in not having their names

revealed in connection with disclosure of the fact and subject matter of the investigation.”

Davin, 60 F.3d at 1058. Deceased individuals lack this privacy interest under FOIA, and

“it is within the discretion of the district court to require an agency to demonstrate that

the individuals upon whose behalf it claims the privacy exemption are, in fact, alive.” Id.

at 1059. If the district court orders the agency to show that certain individuals are alive,

and the agency is unable to do so, “a court must assure itself that the Government has

made a reasonable effort to ascertain life status. . . . in light of the accessibility of the

relevant information.” Schrecker v. U.S. Dep’t of Justice, 349 F.3d 657, 662 (D.C. Cir.

2003).


                                                3
       Once the government establishes a relevant privacy interest, the district court

weighs it against the public interest. The public interest under Exemption 7(C) is narrow:

the only relevant public interest is the interest in information that “sheds light on an

agency’s performance of its statutory duties.” Davin, 60 F.3d at 1059 (quoting U.S.

Dep’t of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 773 (1989)). In

other words, “whether disclosure of a private document under Exemption 7(C) is

warranted must turn on the nature of the requested document and its relationship to ‘the

basic purpose of the Freedom of Information Act ‘to open agency action to the light of

public scrutiny.’” Reporters Comm., 489 U.S. at 772.

       Frankenberry contends that the FBI failed to establish a privacy interest under

Exemption 7(C) because it did not make reasonable efforts to determine the life status of

the individuals upon whose behalf it claimed a privacy interest. As the district court

found, however, the FBI reviewed the available records and cross-referenced information

from prior FOIA requests and internal records in its attempt to determine the life status of

non-FBI employees. The FBI also attempted to search the Consolidated Lead Evaluation

and Reporting database but was unable to do so because the responsive documents lacked

these individuals’ birth dates and social security numbers. Similarly, the FBI could not

determine the life status of its retired employees because it lacked their birth dates and

social security numbers. Based on this information, the district court found that the FBI

made reasonable efforts to determine the life status of the individuals upon whose behalf

it claimed a privacy interest. The district court therefore had an adequate factual basis for

this determination, and its conclusion was not clearly erroneous.


                                              4
        Frankenberry also unpersuasively argues that the public interest in exposing FBI

misconduct outweighs any privacy interest the FBI may establish. To establish the

exposure of government misconduct as a public interest, however, Frankenberry must

“produce evidence that would warrant a belief by a reasonable person that the alleged

Government impropriety might have occurred.” Nat’l Archives & Records Admin. v.

Favish, 541 U.S. 157, 174 (2004). That is, he has to “establish more than a bare

suspicion in order to obtain disclosure.” Id. Yet Frankenberry relies only on a vague

assertion that the requested material “may” reveal information proving FBI misconduct.

Because his assertion falls short of the Favish standard, the district court properly found

that Frankenberry failed to show a relevant public interest. Accordingly, the district court

did not clearly err by granting the FBI’s motion for summary judgment on Exemption

7(C).

                                             B.

        Frankenberry also claims that the district court erred in granting summary

judgment to the FBI on exemption 5 U.S.C. § 552(b)(7)(D). Under Exemption 7(D), an

agency is not required to disclose records or information compiled for law enforcement

purposes that

        could reasonably be expected to disclose the identity of a confidential
        source, including a State, local, or foreign agency or authority or any
        private institution which furnished information on a confidential basis, and,
        in the case of a record or information compiled by criminal law
        enforcement authority in the course of a criminal investigation or by an
        agency conducting a lawful national security intelligence investigation,
        information furnished by a confidential source.




                                             5
5 U.S.C. § 552(b)(7)(D). A source is confidential only “if the source ‘provided

information under an express assurance of confidentiality or in circumstances from which

such an assurance could reasonably be inferred.’” Davin, 60 F.3d at 1061 (quoting U.S.

Dep’t of Justice v. Landano, 508 U.S. 165, 172 (1993)).

       The FBI bears the burden of proving that Exemption 7(D) applies. Id. at 1061. It

carries this burden by establishing that it expressly or impliedly granted confidentiality to

the sources identified in the documents it seeks to exempt. Id. at 1061–62. To establish

that the FBI expressly granted confidentiality to a source, the FBI must “come forward

with probative evidence that the source did in fact receive an express grant of

confidentiality.” Id. at 1061. By contrast, the FBI is entitled to a presumption that it

impliedly granted confidentiality to a source “when circumstances such as the nature of

the crime investigated and the witness’ relation to it support an inference of

confidentiality.” Id. at 1062 (quoting Landano, 508 U.S. at 181).

       Frankenberry argues that the FBI failed to establish that the nineteen pages of

documents it seeks to exempt under Exemption 7(D) contain sources to whom the FBI

expressly or impliedly granted confidentiality. This argument fails for two reasons.

       First, the district court properly found that the FBI withheld some of the

documents because they contain a source to whom the FBI had expressly granted

confidentiality. The district court determined that the FBI had established an express

grant of confidentiality on two documents—Frankenberry-58 and Frankenberry-60—

because these documents contain notations proving that the source had expressly

requested and been granted confidentiality. The FBI then submitted a declaration


                                              6
explaining that the individual discussed on Frankenberry-58 and Frankenberry-60 is the

same individual discussed on a number of other pages. Based on this information, the

district court held that the FBI had established that it rightly withheld all of these pages

under an express assurance of confidentiality.

       Second, the district court adequately determined that the FBI withheld the

remaining documents under an implied assurance of confidentiality. After examining the

relevant documents, the district court concluded that the nature of the investigation and

the sources’ relationship to the investigation demonstrated that the information was

provided under an implied assurance of confidentiality. The district court therefore based

these determinations on a sufficient factual basis. For these reasons, the district court did

not clearly err by granting the FBI’s motion for summary judgment on Exemption 7(D).

                                              C.

       Last, Frankenberry claims that the district court erred in granting summary

judgment to the FBI on exemption 5 U.S.C. § 552(b)(7)(E). Under Exemption 7(E), an

agency is not required to disclose records or information compiled for law enforcement

purposes that “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).

       The FBI claimed Exemption 7(E) as a basis for redacting the ratings column of

Form FD-515 and withholding documents relating to polygraph examinations. The FBI

invoked Exemption 7(E) on the ratings column of Form FD-515 because it evaluates the


                                              7
effectiveness of an investigative technique. According to the FBI, redacting this portion

of Form FD-515 is therefore necessary to prevent criminals from adapting their

techniques based on the ratings column information. For the documents relating to

polygraph examinations, the FBI claimed Exemption 7(E) because criminals could use

this information to understand how the FBI implements the procedures and intricacies of

a polygraph examination, which could risk circumvention of the law.

       Frankenberry relies exclusively on Milner v. Department of Navy, 131 S. Ct. 1259

(2011), as support for his argument that the district court erred in granting the FBI

summary judgment on the Form FD-515 and polygraph documents. Frankenberry,

however, misconstrues this case, so his reliance on it is misplaced.

       Milner dealt with the scope of exemption 5 U.S.C. § 552(b)(2), which allows an

agency to withhold material that is “related solely to the internal personnel rules and

practices of an agency.” 131 S. Ct. at 1262 (quoting 5 U.S.C. § 552(b)(2)). In Milner,

the Navy had invoked this exemption to withhold data and maps related to the storage of

explosives. Id. But the Court concluded that “[a]n agency’s ‘personnel rules and

practices’ are its rules and practices dealing [only] with employee relations or human

resources.” Id. at 1265 (emphasis added). Because data and maps related to the storage

of explosives do not relate to employee relations or human resources, the Court held the

Navy could not invoke this exemption. Id. at 1266.

       Frankenberry claims that the district court improperly used Milner as a basis to

withhold the Form FD-515 and polygraph documents, but he misunderstands Milner’s

role in the district court’s decision on Exemption 7(E). The FBI did in fact originally


                                             8
invoke 5 U.S.C. § 552(b)(2), in addition to Exemption 7(E), to withhold the Form FD-

515 and polygraph documents. But the district court—and the FBI itself—subsequently

concluded that exemption 5 U.S.C. § 552(b)(2) was no longer applicable in light of

Milner, given that the Form FD-515 and polygraph documents do not relate to employee

relations or human resources.

       The district court then correctly concluded that the FBI could still withhold these

documents but under the other exemption it invoked—Exemption 7(E). See Milner, 131

S. Ct. at 1271 (finding that the government can withhold documents under other FOIA

exemptions if 5 U.S.C. § 552(b)(2) does not apply). For the ratings column on the Form

FD-515 document, the district court found that the FBI had specifically shown that it

reveals the effectiveness of certain investigative techniques and releasing it could thus

risk circumvention of the law. Concerning the polygraph information documents, the

district court determined that the FBI had sufficiently established that they contain

investigation techniques that could also risk circumvention of the law if disclosed.

Consequently, the district court’s grant of summary judgment to the FBI on these

documents had an adequate factual basis and was not clearly erroneous.2

                                            IV.


2
  The district court also held that the FBI had properly withheld documents that contain
information related to money expenditures in the FBI investigation. This information
relates to “procedures for law enforcement investigations” because it shows where the
FBI concentrates its resources in an investigation. The disclosure of this information
could therefore risk circumvention of the law. As a result, the district court did not
clearly err in finding that these documents were also exempt under Exemption 7(E).
Moreover, as the government asserts that the relevant documents have since been
released to Frankenberry, the issue is now moot.

                                             9
For the reasons set forth above, we will affirm the judgment of the district court.




                                      10
