“More Than Mere Deference”: Seventh Circuit Re-Affirms the Two-Pronged FOIA Clear-Error Review and Approves Non-Security Glomar Responses

1. Introduction

Joel A. Brodsky—an Illinois attorney turned self-described confidential informant—filed a Freedom of Information Act (FOIA) request demanding every FBI record that referenced his alleged informant work between 2000 and 2020. The FBI produced a mere 14 pages in full, 84 pages in part, and withheld the balance (466 pages) under a matrix of FOIA exemptions, accompanied by a redacted Vaughn index and a partial “Glomar” response—refusing even to confirm or deny the existence of certain materials. The district court, after in camera inspection, granted summary judgment to the Bureau.

On appeal, Brodsky mounted a multi-front attack: (i) demanding that the Seventh Circuit jettison its unique “two-step” standard of review (de novo on adequacy of factual basis, clear-error on exemption rulings); (ii) arguing that Glomar should be confined to classic national-security matters; and (iii) challenging virtually every exemption invoked.

The Seventh Circuit (Kirsch, Lee & Pryor, JJ.) responded with an emphatic reaffirmation of its own precedent and issued a broad endorsement of the FBI’s invocation of the so-called mosaic doctrine, the National Security Act, and the full suite of §552(b)(3)–(7) exemptions. Although labelled “Nonprecedential,” the order clarifies several unsettled questions, particularly in the post-Loper Bright era when many litigants are probing for opportunities to expand de novo review of agency action.

2. Summary of the Judgment

Standard of Review: The panel re-affirmed the Seventh Circuit’s bifurcated FOIA standard—first asking de novo whether the district court had an “adequate factual basis,” then reviewing actual exemption determinations only for clear error (Libarov v. ICE, 2025).
No Expansion of De Novo Review Post-Loper Bright: The demise of Chevron deference in Loper Bright v. Raimondo (2024) does not disturb the FOIA-specific standard; declarations remain questions of fact, not agency law-interpretations.
Redacted Vaughn Index Approved: The court held that a redacted Vaughn index is permissible where disclosure of cross-references could reveal intelligence sources or methods (Bassiouni v. CIA).
Glomar Beyond “National Security” Cases: Rejecting Brodsky’s contention, the court reiterated that Glomar responses can be used whenever disclosure of existence or non-existence would itself harm protected interests—citing Donato v. EOUSA (D.D.C. 2018).
Mosaic Doctrine Embraced: The panel invoked the “bits-and-pieces” rationale to approve holistic withholdings, emphasising how disparate data can be recombined to compromise sources and methods.
All Claimed Exemptions Sustained: The court found no clear error in the FBI’s reliance on exemptions (b)(3), (5), (6), (7)(A), (7)(C), (7)(D) and (7)(E).

3. Analysis

3.1 Precedents Cited and Their Role

Libarov v. ICE, 138 F.4th 1010 (7th Cir. 2025)
– The anchor precedent for the Seventh Circuit’s bifurcated standard. By expressly “reaffirming” Libarov, the panel signalled doctrinal stability immediately after Loper Bright.
Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973)
– Provides the blueprint for agency indices correlating each record with applicable exemptions. Here, the FBI’s partially redacted index was challenged; the court upheld redaction by relying on Bassiouni.
Phillippi v. CIA, 546 F.2d 1009 (D.C. Cir. 1976) (“Glomar”)
Bassiouni v. CIA, 392 F.3d 244 (7th Cir. 2004)
– Both precedents validated refusal to confirm/deny sensitive records and allowed redacted indices when “fishing expeditions” could reveal intelligence tradecraft.
CIA v. Sims, 471 U.S. 159 (1985) & 50 U.S.C. §3024(i)(1)
– Recognise the National Security Act as a qualifying §552(b)(3) statute. The panel used Sims to counter Brodsky’s attempt to carve out FBI “law-enforcement” functions from “intelligence” mandates.
Doe v. Gonzales, 546 U.S. 1301 (2005) (Ginsburg, J., in chambers); Connell v. CIA, 110 F.4th 256 (D.C. Cir. 2024)
– Cement the “mosaic” concept: innocuous fragments, once combined, can expose secret operations—justifying broader withholdings.
Additional Circuit and Supreme Court authorities (e.g., Higgs, Favish, Fogg, Anderson v. City of Bessemer City) guided the panel’s privacy-balancing and clear-error metrics.

3.2 Legal Reasoning

The panel’s reasoning unfolds along three concentric tracks: jurisdictional standard, procedural adequacy, and exemption-by-exemption validation.

(a) Jurisdictional/Standard of Review

FOIA cases in the Seventh Circuit are subject to a “two-pronged review” uniquely blending de novo and deferential lenses. Brodsky’s core gambit—leveraging the Supreme Court’s 2024 dismantling of Chevron in Loper Bright—failed because Chevron dealt with law-interpreting deference under the APA, while FOIA disputes hinge on fact-finding (whether the record actually fits an exemption). The court distinguished these domains and warned against conflating them.

(b) Adequate Factual Basis

The district judge (Sharon Johnson Coleman) conducted an in camera review of all unredacted materials, considered a detailed declaration from FBI Section Chief Michael Seidel, and cross-checked a comprehensive Vaughn index. Citing Vidal-Martinez, the panel held this to be “more than adequate,” satisfying prong one.

(c) Substantive Exemption Analysis

§552(b)(3) – Statutory Withholding: The FBI invoked the National Security Act to protect “intelligence sources and methods.” The court agreed that even if the files arose from “law-enforcement” operations, the Act’s mandatory non-disclosure clause governed because intelligence techniques overlapped.
§552(b)(7)(E) – Law-Enforcement Techniques/Procedures: Seidel’s declaration identified how disclosure could tip off subjects to undercover protocols. Brodsky’s assertion that “the FBI website already shows indictments” could not establish public-domain status.
Mosaic Doctrine: A recurrent theme; even isolated data points could, in aggregate, compromise live or future operations. This justified full-page withholdings where “surgical” redaction was insufficient.
§552(b)(6) & (7)(C) – Privacy: The panel required Brodsky to present more than “bare suspicion” of agency wrongdoing to override privacy (per Favish). He could not.
§552(b)(7)(D) – Confidential Sources: Brodsky sought access to prove—or disprove—the FBI’s handling of his alleged informant status. The court relied on Seidel’s unrebutted assertion that the sources were confidential and that even confirming or denying could expose them.
§552(b)(7)(A) – Interference with Proceedings: Because Seidel attested to ongoing and prospective investigations, the exemption applied; FOIA does not demand naming the proceedings.
§552(b)(5) – Deliberative-Process/Work-Product: Though the panel declined to tackle the close procedural question, it noted that other applicable exemptions independently justified withholding handwritten notes.

3.3 Anticipated Impact

Stability of Seventh Circuit FOIA Review Post-Loper Bright: Litigants inclined to challenge deferential FOIA standards should now heed the court’s explicit separation of Chevron doctrine from FOIA fact-finding.
Expanded Comfort-Zone for Glomar Responses: The decision dispels the perceived limitation of Glomar to espionage or foreign-intelligence contexts, affirming its utility in criminal or corruption investigations that implicate sources/methods.
Re-Christening the Mosaic Doctrine: By invoking Justice Ginsburg’s Doe v. Gonzales chambers opinion, the panel reinforces a holistic secrecy approach—even decades-old records may threaten present investigative integrity.
Guidance for FOIA Practitioners: Agencies operating within the Seventh Circuit can rely on redacted Vaughn indices, robust declarations, and in camera reviews to sustain withholdings. Requesters must adduce genuine contradictory facts, not speculation.

4. Complex Concepts Simplified

FOIA Exemptions (§552(b)): Nine narrowly-tailored carve-outs that allow agencies to withhold information. Here, exemptions 3, 5, 6, and 7(A)–(E) were at issue.
Vaughn Index: An itemized, record-by-record log correlating each document (or portion) with the exemption relied upon. It allows the court (and, when unredacted, the requester) to test the agency’s assertions without disclosing sensitive content.
Glomar Response: Named after the CIA’s “Glomar Explorer” case, it lets an agency “neither confirm nor deny” the existence of records when even that confirmation would jeopardize protected interests.
Mosaic Doctrine: The idea that discreet fragments of information, individually innocuous, can be patched together to reveal sensitive patterns—akin to assembling tiles of a mosaic.
In Camera Review: Private judicial inspection of contested records. Parties opposing the agency do not participate, preserving secrecy while allowing independent scrutiny.

5. Conclusion

Although designated “non-precedential,” Brodsky v. FBI packs significant doctrinal heft. It cements the Seventh Circuit’s distinctive clear-error regime for FOIA cases in the immediate aftermath of Chevron’s downfall, underscores the judiciary’s endorsement of the mosaic theory, and broadens the circumstances under which Glomar replies are legitimate. For requesters, the decision is a tactical caution: speculation and generalized public interest will not override carefully documented agency harms. For agencies, it is strategic validation—detailed declarations, partial Vaughn indices, and in camera showings remain a robust triad for defending sensitive withholdings. The ruling thus harmonises FOIA’s transparency mandate with the enduring need to protect investigative integrity and personal privacy.