CHRISTOPHER R. COOPER, United States District Judge
Plaintiff Kathryn Sack seeks to compel four Department of Justice ("DOJ") components to conduct additional searches and produce withheld records in response to her FOIA requests for information on polygraph bias. The DOJ has moved for summary judgment, arguing that it conducted adequate searches and properly withheld records under FOIA Exemptions 2, 5, 6, and 7. Sack limits her opposition to challenging the adequacy of the DOJ's search for records regarding a Department of Defense polygraph institute, to which it repeatedly directed Sack, and its withholding of certain records regarding the ATF's administration of polygraphs to prospective special agents. Because the DOJ has not demonstrated that it conducted an adequate search for these particular records and has improperly invoked Exemptions 2 and 5, the Court will deny the government's motion in part.
Kathryn Sack is a University of Virginia PhD student studying bias in polygraph examinations. Compl. ¶ 4. Sack submitted six requests under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, for records from the Federal Bureau of Investigations ("FBI") regarding polygraph bias and FBI polygraphers between 2009 and 2011, as well as a request to the Office of Personnel Management ("OPM"), which referred the request to the Bureau of Alcohol, Tobacco, and Firearms ("ATF") and the Justice Management Division. Id. ¶¶ 7-62. She brings this action to compel the FBI and ATF to conduct additional searches and provide withheld documents that respond to these requests. Sack has declined to challenge the DOJ's motion for summary judgment as to some of her requests, Opp. to Mot. for Summ. J. at 2, and thus the Court will limit its recitation of the facts as to those requests.
Sack submitted her first request in December 2009, seeking "information on polygraph bias that is illegal under equal employment law" from the FBI. Declaration of David M. Hardy, Section Chief, Record/Information Dissemination Section, FBI Records Management Division ("Hardy Decl.") ¶ 1 & Ex. A. Two years later, Sack submitted four more requests through counsel. Compl. ¶ 22. The first asked for documents regarding: (1) research on bias in polygraph examinations; (2) incentive systems for polygraphers to "obtain confessions"; (3) the job description of polygrapher at the FBI; and (4) studies on sensitivity and accuracy rates of polygraphy. Hardy Decl. Ex. K. The second requested research and records on:
The FBI, through the declaration of David Hardy, states that it responded to Sack's requests by searching its central records system, intranet, investigative manuals, and nine offices or divisions of the Agency. Hardy Decl. ¶ 61. FBI personnel searched the central records system "in an effort to locate records indexed under `polygraph bias,' `Sheila Reed,' and `Gordon Barland'" but uncovered no records in response to any of Sack's requests. Id. ¶ 62. The files of the Security Division and its Polygraph Unit "were searched no less than six times throughout the processing of [Sack's] requests ... and located 133 pages of responsive records." Id. ¶ 63. Hardy explains that the "Chief of the Polygraph Unit/Supervisory Special Agent is familiar with the types of records maintained by the unit" and that he tasked the Polygraph unit employees to "conduct searches of hard copy and electronic records" for materials responsive to Sack's various requests. Id. ¶¶ 64-66. Likewise, the Chief of the Behavior Sciences Unit "checked the list of current research projects for BSU.... canvassed employees.... [and tasked employees] with searching their files ... for any correspondence or e-mails involving Sheila Reed." Id. ¶ 68. Similarly, Laboratory Division employees were asked about whether the division had ever done polygraph research and directed to search for correspondence with Sheila Reed. Id. ¶ 69. In the Mobile Field Office, several employees involved in the polygraph program "reviewed the [hardcopy and electronic files maintained by the field office regarding polygraphs] and advised that the office does not maintain any records responsive to plaintiff's requests[.]" Id. ¶ 70. Employees of the Birmingham Field Office did the same. Id. ¶ 71. Employees reviewed the FBI's intranet using the terms "polygraph" and "polygraph bias" and discovered chapters of security policy manuals, which were deemed responsive. Id. ¶ 72. Similarly, the Office of Equal Employment Opportunity Affairs ran searches of its database for the term "polygraph." Id. ¶ 73.
ATF, through the declaration of Stephanie Boucher, states that it was referred several documents that OPM marked as responsive and determined that some should be withheld in part under FOIA
Summary Judgment is appropriate when the pleadings, affidavits, exhibits, and other evidence before the Court demonstrate that there is no genuine issue of material fact in dispute, and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The movant has the burden to demonstrate that there are no issues of material fact in dispute that may affect the outcome of the case under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The Court must accept all evidence of the non-movant and draw all reasonable inferences in the non-movant's favor. Id. at 255, 106 S.Ct. 2505.
FOIA cases such as this are typically decided on motions for summary judgment. E.g., Shapiro v. DOJ, 969 F.Supp.2d 18, 26 (D.D.C.2013), appeal dismissed, 13-5345, 2014 WL 1378748 (D.C.Cir. Feb. 26, 2014) (citing Brayton v. Office of the U.S. Trade Rep., 641 F.3d 521, 527 (D.C.Cir.2011)). In order to meet its FOIA obligations and prevail on a motion for summary judgment the government must demonstrate that it conducted an adequate search and produced all responsive records not properly withheld under FOIA's nine statutory exemptions. Weisberg v. DOJ, 627 F.2d 365, 368 (D.C.Cir.1980).
The government may satisfy this burden through affidavits setting forth in reasonable specificity its search methods and the justifications for its withholdings. Consumer Fed'n of Am. v. Dep't of Agric., 455 F.3d 283, 287 (D.C.Cir.2006). The government cannot satisfy its burden with affidavits that are vague or conclusory, or merely parrot the statutory standard. Id. An agency affidavit will be afforded "substantial weight[] so long as it ... is not contradicted by contrary evidence in the record or by evidence of the agency's bad faith[.]" Judicial Watch, Inc. v. DOD, 715 F.3d 937, 940-41 (D.C.Cir.2013) (quotation omitted). "Ultimately, an agency's justification for invoking a FOIA exemption is sufficient if it appears `logical' or `plausible.'" Wolf v. CIA, 473 F.3d 370, 374-75 (D.C.Cir.2007) (quoting Gardels v. CIA, 689 F.2d 1100, 1105 (D.C.Cir.1982)). Plausible, non-conclusory government affidavits "cannot be rebutted by `purely speculative claims about the existence and discoverability of other documents.'" SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C.Cir.1991) (quoting Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C.Cir.1981)).
To meet its FOIA obligations, an agency must show that it "conducted a search reasonably calculated to uncover all relevant documents." Weisberg v. DOJ, 705 F.2d 1344, 1351 (D.C.Cir.1983). The agency is not required to prove that it discovered every possibly relevant document, id. at 1485, but must demonstrate "a good faith effort[.]" Oglesby v. Dep't of the Army, 920 F.2d 57, 68 (D.C.Cir.1990). The Court will judge the adequacy of an agency's search for documents by a standard of reasonableness that "depends, not surprisingly, upon the facts of each case." Weisberg v. DOJ, 745 F.2d 1476, 1485 (D.C.Cir.1984).
The Court may grant summary judgment on the basis of agency affidavits and declarations alone when they are "relatively detailed and non-conclusory." SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C.Cir.1991). The affidavits need not "set forth with meticulous documentation the details of an epic search for the requested records[.]" Perry v. Block, 684 F.2d 121, 127 (D.C.Cir.1982). But they must describe "what records were searched, by whom, and through what processes," Steinberg v. DOJ, 23 F.3d 548, 551-52 (D.C.Cir.1994) (citing Weisberg, 627 F.2d at 371), and should "set[] forth the search terms and the type of search performed and aver[] that all files likely to contain responsive materials ... were searched." Oglesby, 920 F.2d at 68. There is a presumption of good faith accorded to agency submitted affidavits or declarations, "which cannot be rebutted by `purely speculative claims about the existence and discoverability of other documents.'" SafeCard Servs., 926 F.2d at 1200 (quoting Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C.Cir.1981)).
Sack specifically challenges the government's response to her request to the FBI for "records pertaining to the Department of Defense Polygraph Institute ("DoDPI") or the Defense Academy [for] Credibility Assessment ("DACA")[,]" which is now known as the National Center for Credibility Assessment ("NCCA"). Opp. to Mot. for Summ J. at 5. She expresses incredulity at the lack of records the FBI produced regarding this entity because the FBI encouraged Sack to contact NCCA regarding her requests no fewer than five times, Hardy Decl. ¶¶ 9, 29, 63, 70, 71, and because all FBI polygraphers apparently receive training at NCCA. Opp. to Mot. for Summ. J. at 5-6.
The government is correct that a FOIA plaintiff cannot succeed in challenging the adequacy of the government's search by hypothesizing that additional records should have been discovered, e.g. Wilbur v. CIA, 355 F.3d 675, 678 (D.C.Cir.2004), but this does not end the matter. It remains the government's burden to provide affidavits demonstrating that it conducted an adequate search, Weisberg, 705 F.2d at 1344. The Court concludes it has failed to do so here.
Perhaps because of the multitude of requests Sack submitted, the government omits key details from its descriptions of its searches regarding Sack's DACA request. For instance, Mr. Hardy states that the FBI searched its central record systems for the terms "polygraph bias," "Sheila Reed," and "Gordon Barland," but does not indicate whether it conducted any searches regarding DACA or NCCA. Hardy Decl. ¶ 62. Similarly, no term searches for DACA or NCCA appear to have been performed on the FBI intranet. See id. ¶ 72. Hardy states that the Polygraph Unit was "asked to search several times for records related to polygraph research, including ... research and records pertaining
Additionally, the government's description of its search indicates it may have misconstrued Sack's request. While she asked for records pertaining to DACA broadly, the FBI appears only to have searched for records pertaining to polygraph bias, which would have excluded records regarding DACA that were unrelated to bias research. This contravenes the government's "`duty to construe a FOIA request liberally.'" People for the Ethical Treatment of Animals v. Dep't of Health and Human Servs., 745 F.3d 535, 540 (D.C.Cir.2014) (quoting Nat'l Magazine v. U.S. Customs Serv., 71 F.3d 885, 890 (D.C.Cir.1995)).
In sum, the Hardy declaration does not describe any searches specific to Sack's DACA request, or outline the FBI's general search process in such a way that might lead to a reasonable inference that the Bureau responded specifically to this request. Accordingly, the Court will deny the government's motion for summary judgment as to Count 3 and require the government to submit further affidavits or conduct additional searches to respond to Sack's request for records pertaining to DACA/NCCA.
As noted above, Sack challenges the ATF's withholding of portions of ATF Order 2123.1, which describes its "Pre-Employment Polygraph Special Agent Screening Program," and a "portion of an int[er]-agency email from ATF to OPM ... which quotes a provision in ATF Order 2123.1 and offers a clarifying interpretation of that provision." Boucher Decl. ¶ 10. ATF has withheld Order 2123.1 under Exemptions 2 and 7(E). It has withheld the email to OPM under Exemptions 2, 5, and 7(E). The Court will review each justification for these withholdings.
Exemption 2 protects from disclosure documents that are "related solely to the internal personnel rules and practices of an agency," 5 U.S.C. § 552(b), and are not the subject of "genuine and significant public interest." Dep't of the Air Force v. Rose, 425 U.S. 352, 369, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976). The purpose of the exemption "is simply to relieve agencies of the burden of assembling and maintaining [such information] for public inspection." Id. The Supreme Court has recently held that "only records relating to issues of employee relations and human resources" are covered by the exemption and emphasized that the "practice of `construing FOIA exemptions narrowly' stands on especially firm footing with respect to Exemption 2." Milner v. Dep't of the Navy, 562 U.S. 562, 131 S.Ct. 1259, 1265-66, 1271, 179 L.Ed.2d 268 (2011) (internal citation omitted) (quoting DOJ v. Landano, 508 U.S. 165, 181, 113 S.Ct. 2014, 124 L.Ed.2d 84 (1993)).
Sack acknowledges that Order 2123.1 and the email to OMB relate to the personnel functions of ATF, but argues that ATF's use of polygraphs on applicants for
The DOJ posits that "while the public may have an interest in knowing that applicants for a law enforcement position with ATF are subject to pre-screening polygraphs ... the public does not have an interest in the internal practices and procedures by which that screening is conducted at ATF." Id. But this ipse dixit contravenes the requirement that the Court construe Exemption 2 narrowly. How government agencies use polygraphs to screen employees is not a trivial matter like the "`use of parking facilities or regulations of lunch hours, [or] statements of policy as to sick leave,'" which the Supreme Court has cited as examples of documents that can be withheld under Exemption 2. Milner, 131 S.Ct. at 1262 (quoting Rose, 425 U.S. at 363, 96 S.Ct. 1592). The public may well want to know, as Sack does, how agencies employ somewhat-controversial polygraph techniques to screen job applicants. Thus, construing Exemption 2 narrowly, it cannot extend to ATF's polygraph program because this is not trivial personnel information.
FOIA Exemption 5 shields from disclosure "inter-agency or intra-agency memoranda or letters which would not be available by law to a party other than an agency in litigation with the agency." 5 U.S.C. § 522(b)(5). Exemption 5 encompasses the deliberative process privilege, which protects materials that are "`both predecisional and a part of the deliberative process.'" Nat'l Inst. of Military Justice v. DOD., 512 F.3d 677, 680 n. 4
ATF redacted a portion of the email to OMB quoting and interpreting Order 2123.1. Boucher Decl. ¶ 18. It is well established that an agency's regulations and settled regulatory interpretations are not covered by the deliberative process privilege. E.g., Elec. Frontier Found., 739 F.3d at 7 ("agencies must disclose their working law," which cannot be "hidden behind a veil of privilege because it is not designated as formal, binding, or final." (internal citations and quotation marks omitted)). At face value, then, the redacted portion of the email cannot be withheld under Exemption 5 because it provides ATF's interpretation of its regulation, and nothing indicates that this interpretation was in any way novel.
AFT explains further, however, that it sent OMB the information contained in the email to help it decide whether to re-approve Order 2123. 1, and argues that these deliberations on future regulation make the document deliberative and pre-decisional. Boucher Decl. ¶¶ 22-23. This added wrinkle does not justify the withholding. In Public Citizen v. OMB, 598 F.3d 865 (D.C.Cir.2010), OMB sought to withhold a document containing its interpretations of statutes and current practices under the deliberative process privilege because the document was prepared to help generate recommendations for the Executive Office of the President. Id. at 867-68. The D.C. Circuit held, however, that a document explaining existing policy "cannot be considered deliberative" simply because it was created to help make decisions about future policies. Id. at 876. Likewise, AFT does not indicate that the inter-agency email provides recommendations on how to modify the order or whether to re-approve it. Instead, the email quoted an existing order and "provide[d] a clarifying interpretation of that provision," Boucher Decl. ¶ 18, and therefore does not "reflect the give and take of the deliberative process[.] See Public Citizen, 598 F.3d at 876. Accordingly, ATF cannot redact portions of the email under Exemption 5.
Exemption 7(E) applies to information compiled for law enforcement
The D.C. Circuit has already established that security clearance procedures used to evaluate candidates for positions in a law enforcement agency may be withheld under Exemption 7(E). Morley v. CIA, 508 F.3d 1108, 1128-29 (D.C.Cir. 2007) (citing Mittleman v. OPM, 76 F.3d 1240, 1243 (D.C.Cir.1996)). Indeed, in Morley, the CIA was permitted to withhold information simply on the basis that it could "provide insight" into the security clearance process. Id. at 1129. Under a similarly deferential standard, this Court likewise has held that records regarding polygraphing job applicants may be withheld under Exemption 1 as classified in the interests of national defense or foreign policy. Sack v. CIA, 12-537, 49 F.Supp.3d 15, 20-21, 2014 WL 2769103, at *3 (D.D.C. June 17, 2014); Blazy v. Tenet, 979 F.Supp. 10, 23 (D.D.C.1997). Consistent with these cases, the Court will accord ATF a high level of deference in reviewing its determination that exposing the withheld procedures would risk circumvention of the law.
ATF has explained that releasing portions of Order 2123.1 and the email to OMB "would allow and/or assist applicants to manipulate or circumvent ATF's polygraph procedures by giving applicants insight and information regarding how test results are evaluated by the agency and the consequences of various test results or outcomes[.]" Bucher Decl. ¶ 45. Facially, this explanation meets the highly deferential standard the Court must apply under 7(E). While this standard is highly deferential, it is not unlimited. Sack points out that ATF appears to be applying this exemption in an extremely broad manner, including applying it to information as apparently benign as the fact that the Chief Security Officer in ATF is tasked with reviewing the decision to deny a security clearance because of an inconclusive polygraph examination. Opp. to Mot. for Summ. J. Ex. C. Given that the Court has determined that ATF may not withhold Order 2123.1 and the OMB email under Exemptions 2 or 5, it will defer ruling on ATF's withholdings under Exemption 7(E) in order to provide ATF an opportunity to determine whether, in light of this opinion, any portions of the withheld material are reasonably segregable from properly withheld material. In doing so, the agency should keep in mind that there must be "a rational nexus between the withheld material and a legitimate law enforcement purpose[.]" Campbell v. DOJ, 164 F.3d at 32.
For the reasons stated above, the government's motion for summary judgment is denied with respect to Sack's request to the FBI for records regarding DACA/ NCCA and ATF's withholding of ATF Order 2123.1 and the September 2010 email under Exemptions 2 and 5. The government's motion is granted in all other respects. The Court will issue an order consistent with this memorandum opinion.