EMMET G. SULLIVAN, United States District Judge.
Plaintiff Katelyn Sack requested information from the defendants, the Central Intelligence Agency ("CIA"), the Department of Defense ("DOD"), and the Department of Justice ("DOJ"), and their component agencies under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. Dissatisfied with their responses, she filed this lawsuit. Pending before the Court are defendants' motion for summary judgment and plaintiff's motion to reinstate Count Fifteen of her Complaint. Upon consideration of the motions, the responses and replies thereto, the applicable law, and the entire record, the Court
Katelyn Sack, a doctoral student, is writing a dissertation about polygraph examinations. See Compl. ¶ 4. In 2010 and 2011, Ms. Sack submitted a number of FOIA requests to the defendants. Some, but not all, of these requests related to the agencies' use of polygraphs. Dissatisfied with the agencies' responses, Ms. Sack filed suit on February 14, 2012.
On April 25, 2013, the parties entered into a stipulation, dismissing Counts Two, Six, Eight, Ten, Eleven, Thirteen, and Fifteen of the Complaint. See Joint Stipulation, ECF No. 13 at 2. They also stipulated to the adequacy of the searches performed by each defendant. See id. at 1. The defendants moved for summary judgment on the remaining counts on May 3, 2013. See Mem. in Supp. of Defs.' Mot. for Summ. J. ("Mem."), ECF No. 14-1. Plaintiff responded on June 24, 2013. See Pl.'s Opp. to Defs.' Mot. for Summ. J. ("Opp."), ECF No. 21. After multiple extensions, the defendants filed their reply brief on January 10, 2014. See Defs.' Reply in Supp. of Summ. J. ("Reply"), ECF No. 27.
On November 30, 2010, plaintiff submitted a request to the CIA (the "Count One Request") for "documents pertaining in whole or in part (all years, all classifications) to a list of closed Inspector General investigations and reports." Defs.' Statement of Facts ("Defs.' SMF"), ECF No. 14-2 ¶ 1; see Ex. A to CIA Decl., ECF No. 14-5 at 2.
On February 7, 2011, the CIA responded to plaintiff's request and indicated that:
On July 5, 2011, plaintiff submitted to the CIA two separate requests. The first request (the "Count Three Request") sought:
Ex. F to CIA Decl., ECF No. 14-5 at 18; see Defs.' SMF ¶ 5. The CIA responded to this request on July 26, 2012, and indicated
Plaintiff's second request (the "Count Four Request") sought:
Ex. H to CIA Decl., ECF No. 14-5 at 30; see Defs.' SMF ¶ 7. The CIA responded to this request on June 6, 2012, indicating that it "located five documents, four of which can be released in segregable form with deletions made on the basis of FOIA exemption (b)(1), (b)(3), and/or (b)(6)" and that the remaining document "must be denied in its entirety on the basis of FOIA exemption (b)(1) and (b)(3)." Ex. I to CIA Decl., ECF No. 14-5 at 37; see Defs.' SMF ¶ 8.
The parties agree that only certain CIA documents, and certain withholdings, remain at issue. See Defs.' SMF ¶¶ 6, 8; Opp. at 3-4. As to the Count Three Request, the parties dispute partial redactions made pursuant to Exemption 3 in Documents 3 and 5. See Defs.' SMF ¶ 6. As to the Count Four Request, the parties dispute the withholding in full of Document 1 pursuant to Exemptions 1 and 3, the partial withholding of Documents 2 and 4 pursuant to Exemptions 1 and 3, and the partial withholding of Document 3 pursuant to Exemption 3. Id. ¶ 8; Opp. at 3-4.
On November 21, 2010, plaintiff submitted a request to the Defense Intelligence Agency ("DIA") by email, seeking "a printout of the list of reports at the Defense Intelligence Agency, or the Defense Academy of Credibility Assessment written by Gordon Barland" and "a copy of each of the reports located." Ex. D to DIA Decl., ECF No. 14-9 at 32; see Defs.' SMF ¶ 10. In response, the DIA released multiple
On July 26, 2011, plaintiff submitted another request to the DIA, seeking "copies of all course materials" for certain "National Center for Credibility Assessment courses." Ex. G to DIA Decl., ECF No. 14-9 at 44; see Defs.' SMF ¶ 11. The DIA released numerous records in response and the parties dispute only certain Exemption 3 and 6 withholdings from document V-21, Exemption 7(E) withholdings from documents V-27 and V-29, and Exemption 3 withholdings from document V-30. See Defs.' SMF ¶ 11; Opp. at 4-5.
On October 24, 2011, plaintiff submitted a request to the DOD's Office of the Inspector General ("DODIG") for "a copy of all Department of Defense Office of the Inspector General ... records relating to the use of polygraphs by DOD components." Ex. A to DODIG Decl., ECF No. 14-11 at 20; see Defs.' SMF ¶ 12. DODIG conducted a series of document releases in response. See Defs.' SMF ¶ 13. At issue are four documents, IG-1, IG-2, IG-3, and IG-4. See Opp. at 5; DODIG Vaughn Index, ECF No. 14-12 at 2-3. Plaintiff challenges partial withholdings from IG-1 and IG-2, and the complete withholding of IG-3 and IG-4, all pursuant to Exemption 7(E). See Opp. at 5; DODIG Vaughn Index, ECF No. 14-12 at 2-3.
On July 5, 2011, plaintiff submitted to the DOJ's Office of Information Policy a request for "records related to the processing of all FOIA appeals submitted by her, including, but not limited to, Appeal No.2010-2171, by OIP." Ex. A to FBI Decl., ECF No. 14-13 at 34 (emphasis omitted); see Defs.' SMF ¶ 14. The Office of Information Policy came upon four pages of Federal Bureau of Investigation ("FBI") records, which it "referred ... to FBI for review and direct response." Defs.' SMF ¶ 15. On April 24, 2012, the FBI released one page in full and withheld portions of the other three pages pursuant to Exemptions 5, 6, and 7(E). Id. Plaintiff challenges only a single Exemption 5 withholding.
Summary judgment is granted when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Waterhouse v. District of Columbia, 298 F.3d 989, 991 (D.C.Cir.2002). In determining whether a genuine issue of fact exists, the court must view all facts in the light most favorable to the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Under FOIA, all underlying facts and inferences are analyzed in the light most favorable to the FOIA requester; as such, only after an agency proves that it has fully discharged its FOIA obligations is summary judgment appropriate. Moore v. Aspin, 916 F.Supp. 32, 35 (D.D.C.1996) (citing Weisberg v. U.S. Dep't of Justice, 705 F.2d 1344, 1350 (D.C.Cir.1983)). "FOIA cases typically and appropriately are decided on motions for summary judgment." Gold Anti-Trust Action Comm. v. Bd. of Governors of Fed. Reserve Sys., 762 F.Supp.2d 123, 130 (D.D.C.2011) (quotation marks omitted).
The plaintiff's first argument is that the CIA erroneously refused to search for records responsive to the Count One Request. That request sought all "documents pertaining in whole or in part (all years, all classifications) to a list of closed Inspector General investigations and reports." Ex. A to CIA Decl., ECF No. 14-5 at 2. The CIA claims that the request was too broad to interpret and that responding would have been unduly burdensome.
FOIA requires agencies to produce documents "upon any request for records which ... reasonably describes such records." 5 U.S.C. § 552(a)(3)(A). A FOIA request must "enable[] a professional employee of the agency who [is] familiar with the subject area of the request to locate the record with a reasonable amount of effort." H.R.Rep. No. 93-876, at 6 (1974), reprinted in 1974 U.S.C.C.A.N. 6267, 6271. "The linchpin inquiry is whether `the agency is able to determine precisely what records are being requested.'" Dale v. IRS, 238 F.Supp.2d 99, 104 (D.D.C.2002) (quoting Tax Analysts v. IRS, 117 F.3d 607, 610 (D.C.Cir.1997)). By contrast, "[b]road, sweeping requests lacking specificity are not sufficient." Id. Relatedly, "[a]n agency need not honor a request that requires an unreasonably burdensome search," Armstrong v. Bush, 139 F.R.D. 547, 553 (D.D.C.1991) (quotation marks omitted), or would require the agency "to locate, review, redact, and arrange for inspection a vast quantity of material." Am. Fed. of Gov't Emps. v. U.S. Dep't of Commerce, 907 F.2d 203, 209 (D.C.Cir.1990). This is so because "FOIA was not intended to reduce government agencies to full-time investigators on behalf of requesters." Assassination Archives & Research Ctr. v. CIA, 720 F.Supp. 217, 219 (D.D.C.1989).
The CIA claims that the Count One Request did not reasonably describe the records it sought because the language "pertaining in whole or in part" was undefined and caused the request to cover any document that is arguably relevant to any list of closed Inspector General investigations and reports, even if the document did not reference such a list. See First Declaration
Plaintiff's request was broader than she claims. It did not seek "all lists of closed Inspector General investigations and reports" or even "all records that refer to a list of closed Inspector General investigations and reports." It sought all records that "pertain[ ] in whole or in part (all years, all classifications)" to such a list. Ex. A to CIA Decl., ECF No. 14-5 at 2. Nor did she describe how the CIA should determine whether a record "pertain[s] in whole or in part" to such a list. This phrase is difficult to define because a record may pertain to something without specifically mentioning it. See Black's Law Dictionary (9th ed.2009), pertain ("[t]o relate to" or "to concern"); Latham v. U.S. Dep't of Justice, 658 F.Supp.2d 155, 157, 161 (D.D.C.2009) (request for "any records... that pertain in any form or sort to [plaintiff]" was "overly broad, and to require the [agency] to process it would be overly burdensome"); James Madison Project v. CIA, No. 8-cv-1323, 2009 WL 2777961, at *4 (E.D.Va. Aug. 31, 2009) (request for "all CIA documents pertaining to ... [t]he indexing and organizational structure of all CIA Systems of Records subject to FOIA" was overbroad "because the term `pertaining to' is synonymous to the term `relating to'" and that "unfairly places the onus of nonproduction on the recipient of the request") (quotation marks omitted; alteration in original). Accordingly, although plaintiff's request clearly encompasses all lists of closed Inspector General investigations and reports and any documents specifically referencing those lists, it would also cover documents that otherwise relate to those lists.
The problem for an agency responding to such a request is that the lack of clarity leaves the agency to guess at the plaintiff's intent. As the CIA explained, plaintiff's request could cover "any documents that relate to closed investigations and reports." Second Declaration of Martha M. Lutz ("CIA Suppl. Decl."), ECF No. 27-1 ¶ 13 (emphasis omitted). Indeed, any document related to a closed investigation may arguably pertain, at least "in part," to a subsequently generated list of investigations. Given this breadth, the CIA could not assume that responsive documents would be located only in those "very few places which would maintain records discussing lists of OIG investigations." Opp. at 8. That would be a starting point, but the CIA would also have needed to devise a method to search for records that do not mention a list of closed Inspector General investigations and reports, but still somehow pertain to such a list. This borders on the "all-encompassing fishing expedition" on which a FOIA requester cannot embark. Dale, 238 F.Supp.2d at 104-05; see Marks v. U.S. Dep't of Justice, 578 F.2d 261, 262, 263 (9th Cir.1978) (request for all records "under" a particular individual's name was a "broad, sweeping request[]" that did not reasonably describe the records it sought); Hunt v. CFTC, 484 F.Supp. 47, 51 (D.D.C.1979) (request for records that "concerned" the requester was overbroad); Fonda v. CIA, 434 F.Supp. 498, 501 (D.D.C.1977) (requester who sought "all documents which ... `concern her' but do not mention her name" made overbroad request by "offer[ing] no criterion by which defendants can determine which documents `concern her'").
Moreover, plaintiff had ample opportunity to accept the CIA's offer to reframe or narrow her request, but she failed to do so. Now that this case has been litigated for years, plaintiff seeks to obtain only lists of closed Inspector General investigations and reports themselves, not any records "about these lists." Opp. at 10 n.7. This narrowing, however, did not come in time to permit the CIA to conduct a search responsive to a more reasonably framed request. Moreover, the parties have stipulated that the sole legal issue before the Court is "whether CIA was legally obligated to conduct [a] search" in response to plaintiff's request. Joint Stipulation, ECF No. 13 at 2. Faced with the task of guessing at plaintiff's intent regarding what might "pertain" to any list of closed Inspector General reports and investigations, the CIA followed a reasonable path: it sought additional guidance from the requester and, when none was provided, closed the file.
Plaintiff also challenges the CIA's Exemption 1 and 3 withholdings in response to the Count Three and Count Four Requests. She disputes partial redactions in five documents and the complete withholding of a sixth. Because the CIA indicated that "all of the information withheld pursuant to Exemption (b)(1) is also covered by [Exemption (b)(3)]," CIA Suppl. Decl. ¶ 4, the Court need not address the applicability of Exemption 1 if the Exemption 3 withholdings were proper. See, e.g., Elec. Frontier Found. v. U.S. Dep't of Justice, 739 F.3d 1, 13 (D.C.Cir.2014).
Exemption 3 protects records that are "specifically exempted from disclosure by statute ... if that statute ... requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue; or ... establishes particular criteria for withholding or refers to particular types of matters to be withheld." 5 U.S.C. § 552(b)(3). "In determining
The CIA relies on two statutes for its Exemption 3 withholdings: Section 102A(i)(1) of the National Security Act, 50 U.S.C. § 3024(i)(1); and Section 6 of the Central Intelligence Agency Act of 1949, 50 U.S.C. § 3507. These provisions "plainly are statutes contemplated by Exemption 3." Int'l Counsel Bureau v. CIA, 774 F.Supp.2d 262, 273 (D.D.C.2011). The question for the Court is whether the information that the CIA withheld falls within these statutes. Darnbrough, 924 F.Supp.2d at 217.
Section 102A(i)(1) of the National Security Act provides that "[t]he Director of National Intelligence shall protect intelligence sources and methods from unauthorized disclosure." 50 U.S.C. § 3024(i)(1). This provision grants the CIA "very broad authority to protect all sources of intelligence information from disclosure." CIA v. Sims, 471 U.S. 159, 168-69, 105 S.Ct. 1881, 85 L.Ed.2d 173 (1985). According to the Supreme Court, "it is the responsibility of the Director of Central Intelligence, not that of the judiciary, to weigh the variety of complex and subtle factors in determining whether disclosure of information may lead to an unacceptable risk of compromising the Agency's intelligence-gathering process." Id. at 180, 105 S.Ct. 1881. Accordingly, "courts are required to give `great deference' to the CIA's assertion that a particular disclosure could reveal intelligence sources or methods." Berman v. CIA, 501 F.3d 1136, 1140 (9th Cir.2007) (quoting Sims, 471 U.S. at 179, 105 S.Ct. 1881); see also Larson v. Dep't of State, 565 F.3d 857, 865 (D.C.Cir.2009). In light of the Supreme Court's decision in Sims, the Act provides a "near-blanket FOIA exemption." Berman, 501 F.3d at 1140 (quotation marks omitted).
Plaintiff focuses her argument on the CIA's invocation of the National Security Act in its Vaughn indices. See Opp. at 11. These assertions, plaintiff claims, fail to meet the agency's burden of demonstrating in a non-conclusory fashion that the withheld information relates to an intelligence source or method. See id. at 11-12. Plaintiff is correct that the Vaughn indices use generic language to invoke the National Security Act. See, e.g., Count Three Vaughn Index, ECF No. 14-7 at 9 (stating that the document "is withheld in part on the basis of FOIA exemption (b)(3)" because it "contains information relating to intelligence sources and methods that is specifically exempted from disclosure pursuant to the National Security Act of 1947"); see also id. at 115; Count Four Vaughn Index, ECF No. 14-8 at 1, 4, 24, 55. That is not all the CIA provided, however.
First, the CIA explained that the information it withheld under the National
The Agency also specified how the particular documents and withholdings relate to that program. Each document is identified and described in ways that clarify its relation to the CIA's concerns. See Count Three Vaughn Index, ECF No. 14-7 at 9 ("Polygraph Procedures Manual," which "discusses authorities, code of ethics, examiner standards, and other topics with regard to polygraph examinations"; the withheld information "relates to the polygraph techniques, internal procedures and analysis"); id. at 115 (regulation related to the "Administration of Polygraph Examinations" which is described as "establish[ing] the policy for the administration of polygraph examinations"); Count Four Vaughn Index, ECF No. 14-8 at 1 (report regarding "[u]se of polygraph in security screening"); id. at 4 (report entitled "The Value of the Polygraph in CIA's Personnel Security Program," from which CIA redacted "information that would reveal intelligence sources and methods as they are relate[d] to polygraph screening procedures"); id. at 24 (index for a report entitled "Validity and Reliability of the Polygraph as a Tool for Identifying Deception and Nondeception," which was written "to measure the validity and technical reliability of polygraph examinations"); id. at 55 (report on "CIA's Use of Polygraphy in Personnel Screening," which "goes into specific detail about reliance on polygraph examinations, the polygraph process, reinvestigation, training, and recommendations").
Moreover, the CIA's supplemental declaration provided additional description of the particular information that was redacted from individual documents. See Suppl. CIA Decl. ¶¶ 8-11 (material withheld from the documents included "internal agency security regulations, details about polygraph examinations including sample questions, analysis of testing data, and the contents of examination reports"; "specifics on the accuracy of certain areas tested during the exam"; "specific details about the CIA's polygraph program, including in depth analysis of the Agency's security processes and assessments of test techniques"; "statistics and anecdotal and empirical evidence ... detailing the utility of and benefits derived from the program"; and "the organization and functions of the polygraph program and ... the utility of this method in different settings").
The CIA also explained why its polygraph program is itself an intelligence source and method. Polygraphs are "a key intelligence method used in the Agency's security processes." They are "a tool for obtaining information and assessing deception in the course of applicant and personnel screening evaluations and counterintelligence investigations," form part of the agency's method for "determining an employee's eligibility for initial or continued access to classified information," and help "reduce the Agency's vulnerability to counterintelligence risks." Id. ¶ 4. Giving "substantial weight to the CIA's affidavits," Larson, 565 F.3d at 865, as the Court must, this is sufficient to establish that the withheld information relates to the detailed workings, efficacy, and weaknesses
The remaining Exemption 3 withholdings were done pursuant to Section 6 of the Central Intelligence Act, which provides:
50 U.S.C. § 3507. Plaintiff agrees that Section 6 protects information about CIA employees, such as their names and specific job functions. See Opp. at 14, 20 n.12.
The dispute boils down to a simple question: does the phrase "of personnel employed by the Agency" modify each item in the list of information that Section 6 exempts from disclosure or only the final item? The plaintiff argues that it modifies each item, meaning that Section 6 exempts from disclosure "the organization of personnel employed by the CIA; the functions of personnel employed by the CIA; the names of personnel employed by the CIA; the official titles of personnel employed by the CIA; the salaries of personnel employed by the CIA; and the numbers
The text of Section 6 does not readily bear the defendants' interpretation. If the phrase "of personnel employed by the Agency" modifies only the final term in the list, the provision becomes difficult to understand because it would exempt from disclosure: "the organization," "the functions," "the names," "the official titles," "the salaries," and "the numbers of personnel employed by the agency." The CIA appears to believe that the other terms should be read as modified by the phrase "of the agency," but that phrase does not appear in Section 6. Under that reading of Section 6, moreover, many items in the list would be rendered absurd (e.g. "the salaries [of the Agency]," "the names [of the Agency]," and "the official titles [of the Agency]"). Nor can the fact that Section 6 is entitled "Protection of nature of Agency's functions," 50 U.S.C. § 3507, overcome the provision's plain language. "[A] statute's title may not undo that which the statute itself makes plain." United States v. Waters, 158 F.3d 933, 938 (6th Cir.1998).
The Court does not write on a blank slate, moreover. Two Judges of this Court recently rejected identical arguments made by the CIA. See Whitaker v. CIA, No. 12-316, 31 F.Supp.3d 23, 33-36, 2014 WL 914603, at *5-7 (D.D.C. Mar. 10, 2014); Nat'l Sec. Counselors v. CIA, 960 F.Supp.2d 101, 174-85 (D.D.C.2013). There is also a long history of decisions from the D.C. Circuit limiting the scope of Section 6. See Nat'l Sec. Counselors, 960 F.Supp.2d at 175-76. First, as "an outer limit," id. at 175, the Circuit has held that Section 6 "does not `allow[] the [CIA] to refuse to provide any information at all about anything it does.'" Id. (quoting Phillippi v. CIA, 546 F.2d 1009, 1015 n. 14 (D.C.Cir.1976)) (alterations in original). The provision thus stands in contrast to Section 6 of the National Security Agency Act, 50 U.S.C. § 3605(a), which protects from disclosure "the organization or any function of the National Security Agency, or any information with respect to the activities thereof, or of the names, titles, salaries, or number of the persons employed by such agency." See Hayden v. NSA, 608 F.2d 1381, 1389-90 (D.C.Cir. 1979) (noting that the National Security Agency Act is "broader" than Section 6 because it protects "`any information with respect to the activities' of the NSA").
The D.C. Circuit has also made clear that Section 6 "applies only to `information about [the CIA's] internal structure.'" Nat'l Sec. Counselors, 960 F.Supp.2d at 175 (quoting Phillippi, 546 F.2d at 1015 n. 14) (alteration in original). The CIA repeatedly seizes on the use of the phrase "internal structure" as support for interpreting the term to cover anything related to the organization or function of the CIA. See Reply at 10-12. The D.C. Circuit, however, has made clear that information related to the Agency's structure is protected only to the extent it relates to "information concerning the Agency's personnel."
The Agency argues that even if Section 6's protections apply only to personnel information, information about the functions and organization of the CIA necessarily relates to the function and organization of its employees. Reply at 12-13. Were there no distinction between the function and organization of agency personnel and the function and organization of the Agency, however, Section 6 would "encompass any kind of activity appropriately carried out by the CIA." Nat'l Sec. Counselors, 960 F.Supp.2d at 176 (holding that the CIA's argument would "strip[] the word personnel of any real meaning") (quotation marks omitted). Thus, although information related to the function and organization of the Agency may relate directly to the function or organization of agency personnel, it does not necessarily do so. This comports with "the plain text of the statute[, which] limits protection from disclosure only to the functions and organization pertaining to or about personnel," id. and the D.C. Circuit's view that Section 6 does not exempt from disclosure "any information at all about anything [the CIA] does.'" Phillippi, 546 F.2d at 1015 n.14.
Under this interpretation of Section 6, the Court cannot currently say whether the CIA's withholdings were proper. The CIA's initial declaration described the information withheld under the CIA Act as including: (1) "the names of CIA employees," their "official titles," and "information disclosing their organizational functions"; (2) "contact information for CIA personnel"; (3) "internal CIA organizational data, including file paths"; (4) "internal
Plaintiff challenges certain of the DIA's withholdings with respect to six documents. She challenges withholdings of polygraph information under Exemption 3 from documents V-21 and V-30; thermal images from document V-21 pursuant to Exemptions 3 and 6; and Exemption 7(E) withholdings from documents V-21, V27, V-29, V-70, and V-71.
The DIA's Exemption 3 withholdings from V-21 and V-30 were all done pursuant to Section 102A(i)(1) of the National Security Act. As discussed in Part III.B.1, supra, that provision exempts from disclosure information related to "intelligence sources and methods," 50 U.S.C. § 3024(i)(1), and grants "very broad authority to protect all sources of intelligence information from disclosure." Sims, 471 U.S. at 168-69, 105 S.Ct. 1881. As long as the agency provides "justifications for nondisclosure with reasonably specific detail, demonstrate[s] that the information withheld logically falls within the claimed exemptions, and show[s] that the justifications are not controverted by contrary evidence in the record or by evidence of [agency] bad faith," Berman, 501 F.3d at 1140, the Court must "accord[] substantial weight to the [agency's] affidavits." Larson, 565 F.3d at 865.
The plaintiff claims that the DIA's Vaughn index and declarations are vague and conclusory. See Opp. at 22-23. In fact, the DIA provided sufficient information to show that it is entitled to summary
The DIA's supplemental declaration provided additional detail. It explained that the National Center for Credibility Assessment, the entity to which both V-21 and V-30 relate, "conducts developmental research and provides academic training to the polygraph programs within the United States Intelligence Community," which then "utilize[s] the ... technology for both national security screening and investigative purposes." Second Declaration of Alesia Y. Williams ("Suppl. DIA Decl."), ECF No. 27-2 ¶ 2. The DIA further stated that the National Security Act "was specifically cited to protect intelligence sources and methods within the Intelligence Community that are related to the use of polygraph technology," which "is used by DIA and other agencies for their intelligence activities and to asses employees' and potential employees' suitability for access to classified materials." Id. ¶ 4. Finally, the DIA declared that "it is not possible to provide any additional information without compromising the sources and methods." Id.
This is sufficient to establish that the withheld information relates to research and training programs of the National Center for Credibility Assessment regarding polygraphs that are used by the intelligence community for security and counterintelligence purposes. In view of the deference owed an agency under the National Security Act, the Court cannot disagree that the DIA's polygraph program is an intelligence source and method and that the withheld information relates to that program.
Plaintiff also challenges the DIA's withholding of thermal images from Document V-21. The DIA explained that the images are "photographs of Department of Defense employees or contractor personnel taken for training purposes with a thermal camera... to demonstrate the potential use of these sorts of images in the credibility assessment process." DIA Suppl. Decl. ¶ 5. These images were withheld pursuant to Exemption 6, which protects from disclosure "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(6).
"The only relevant public interest... is the extent to which disclosure of the information sought would shed light on an agency's performance of its statutory duties or otherwise let citizens know what their government is up to." Id. (quotation marks and alterations omitted). Here, the public interest in disclosure of the thermal images is minimal because the "same type of image could be created with any thermal camera, including through widely-available smart phone `apps' that generate images similar to those being withheld." Suppl. DIA Decl. ¶ 11. "[T]he public interest is not furthered `by disclosure of information about private citizens that is accumulated in various governmental files but that reveals little or nothing about an agency's own conduct.'" People for the Am. Way v. Nat'l Park Serv., 503 F.Supp.2d 284, 304 (D.D.C.2007) (quoting U.S. Dep't of Justice v. Reporters Comm. For Freedom of the Press, 489 U.S. 749, 773, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989)).
Privacy concerns outweigh this minimal public interest. "The privacy interest in nondisclosure encompasses an individual's control of personal information and is not limited to that of an embarrassing or intimate nature." Id. (citing Wash. Post Co., 456 U.S. at 600, 102 S.Ct. 1957). Images of an individual may implicate a privacy interest under Exemption 6. See, e.g., Advocates for Highway & Auto Safety v. Fed. Highway Admin., 818 F.Supp.2d 122, 129 (D.D.C.2011). Indeed, plaintiff "concedes that photographs of employees may be legitimately withheld," but argues that thermal images are different because no employee may be identified from the images. See Opp. at 23-24. The DIA stated, however, that the images "could reasonably lead to the personal identification of these ... employees or contractor personnel." DIA Suppl. Decl. ¶ 5.
Four of the images are such that "[a] viewer is easily able to identify the gender, age, facial shape, and facial hair of the subject" and "can easily make out more detailed facial features that make each person unique." Id. ¶ 7. "These four images provide the viewer with an image that is ... similar to a regular photograph, but with a detailed color overlay that shows the measurement of the heat emanating from the subjects' skin." Id. Three other images, while of lesser quality "still allow a viewer to identify gender, basic facial features, facial hair, and the subject's general age." Id. ¶ 8. Ultimately, the DIA stated, "it would still be quite easy for a viewer to use the images' personally identifying information to discover the identity of each of these [individuals]." Id. ¶ 9.
Nor are the images being withheld solely to prevent unwanted disclosure of the individuals' photographs. As the DIA explained, disclosure of the identities of those depicted in the images would "allow[] outside actors to identify employees of this Agency who may be working to further the mission of the Intelligence Community;
Plaintiff also challenges the DIA's withholding of polygraph-related information pursuant to Exemption 7(E) from V-27, V-29, V-70, and V-71. Exemption 7(E) protects "records or information compiled for law enforcement purposes ... to the extent that the production of such law enforcement records or information... would disclose techniques and procedures 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). An agency does not bear "a highly specific burden of showing how the law will be circumvented"; rather, "exemption 7(E) only requires that [the agency] `demonstrate[] logically how the release ... might create a risk of circumvention of the law.'" Mayer Brown LLP v. IRS, 562 F.3d 1190, 1194 (D.C.Cir.2009) (quoting PHE, Inc. v. Dep't of Justice, 983 F.2d 248, 251 (D.C.Cir.1993)) (second alteration in original).
The DIA maintains that the information withheld under Exemption 7(E) consists of "details concerning the use of polygraph technology to test the credibility of employees involved in specific incidents in the federal workplace" the release of which "could diminish the effectiveness of the polygraph examination as an investigative tool by allowing the general public to discern when DIA is likely to utilize this tool." DIA Decl. ¶ 37. Moreover, at least some of the information withheld relates to "investigative techniques that were used in an espionage investigation." Id. ¶ 39.
More specifically, V-21, V-27, and V-29 are "training materials, which are used to teach polygraph research, standards, policies and procedures" and the withheld information "could be used to circumvent the polygraph examination itself" and potentially diminish "the effectiveness of the polygraph examination as a critical law enforcement and national security screening tool." DIA Suppl. Decl. ¶ 12. V-70 and V-71, reports of Dr. Barland, both include "a significant amount of sensitive information concerning the use of polygraph countermeasures that is unknown to the public." Id. ¶ 13.
Plaintiff argues that this information is not subject to Exemption 7(E) because the information does not pertain to the use of polygraphs during a criminal investigation. See Opp. at 24. The Court finds that plaintiff's proposed distinction between criminal investigations and personnel-screening has no legal basis. Indeed, Judge Wilkins rejected an identical argument in Sack v. U.S. Dep't of Defense, No. 12-cv-1754, 6 F.Supp.3d 78, 90, 2013 WL 6640776, at *8 (D.D.C. Dec. 13, 2013). There, the Court upheld Exemption 7(E) withholdings of polygraph-related information because disclosure of information regarding the DIA's involvement in reviewing and testing other agencies' polygraph programs would contribute to the circumvention
Plaintiff argues alternatively that the information cannot lead to circumvention of law enforcement techniques because it is outdated and there is "no reason to presume that those vulnerabilities [it identifies] have not been subsequently corrected. Opp. at 25-26. The DIA declared that the research discussed in the withholdings "remains an active part" of its "efforts to detect and prevent the use of polygraph countermeasures." DIA Suppl. Decl. ¶ 13. Even if some of the findings have been used to improve polygraph practices, "harm would be caused to the overall process were it to be disclosed precisely which... vulnerabilities have been suitably addressed and which remain a critical task." Id. ¶ 14. These statements are sufficient to meet the agency's burden of showing that release of the information could lead to circumvention of current law-enforcement techniques.
Plaintiff's sole challenge to the DODIG's withholdings asserts that it invoked Exemption 7(E) in a conclusory manner and should be "require[d] ... to supply actual particularized evidence." Opp. at 27. The DODIG withheld portions of Documents IG-1 and IG-2, and all of Documents IG-3 and IG-4. See DODIG Vaughn Index, ECF No. 14-12 at 2-3. Three of the four documents—all but IG-3-are identified as having been authored by the Defense Criminal Investigative Service, id., an arm of the DODIG that utilizes polygraphs in its investigations. See Declaration of Jeanne Miller ("DODIG Decl."), ECF No. 14-11 ¶¶ 4(a), 47. The titles of all four documents shed further light on their relation to DODIG's investigative functions. See DODIG Vaughn Index, ECF No. 14-12 at 2-3 (IG-1 "Psychophysiological Detection of Deception (PDD) Examinations"; IG-2 "Pyschophysiological Detection of Deception Program (PDD) Operational Manual"; IG-3 "Utilization of Polygraph in Criminal Intelligence Operations"; IG-4 "DCIS Form PDD4-DCIS Polygraph Testing Techniques.").
The Vaughn index also states that each withholding was done because the information "would disclose investigative techniques and procedures, specifically, polygraph techniques used by DCIS." Id. Finally, in its declaration, the DODIG asserts that "[i]nformation contained in [the withheld documents], which is not generally known to the public, is designed solely to guide DCIS personnel in the use of polygraphs in support of investigations" and that "[t]he redacted material identifies specific applications of techniques and procedures used in polygraph matters and disclosure could enable circumvention of [the] polygraph test by others." DODIG Decl. ¶ 47. Moreover, DODIG states, "[p]ublic release of that information could possibly benefit those attempting to reduce
Plaintiff's sole challenge to the FBI's withholdings relates to a single Exemption 5 withholding. The FBI released that information to plaintiff after learning that it "was actually released by FBI in response to another of Sack's requests." Opp. at 27 (emphasis omitted); see Second Declaration of David M. Hardy, ECF No. 27-3 ¶ 5. Because plaintiff does not challenge any other withholdings, this claim is moot.
Before granting summary judgment, the Court must determine whether "[a]ny reasonably segregable portion of a record" can "be provided to any person requesting such record after deletion of the portions which are exempt." 5 U.S.C. § 552(b). "So important is this requirement that `[b]efore approving the application of a FOIA exemption, the district court must make specific findings of segregability regarding the documents to be withheld." Elec. Frontier Found. v. U.S. Dep't of Justice, 826 F.Supp.2d 157, 173 (D.D.C.2011) (quoting Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1116 (D.C.Cir.2007)) (emphasis in original). The Court, in fact, has "an affirmative duty to consider the segregability issue sua sponte." Juarez v. Dep't of Justice, 518 F.3d 54, 60 (D.C.Cir.2008) (quotation marks omitted).
In this Circuit, "non-exempt portions of a document must be disclosed unless they are inextricably intertwined with exempt portions." Mead Data Cent., Inc. v. U.S. Dep't of the Air Force, 566 F.2d 242, 260 (D.C.Cir.1977). The agency must "`describe what proportion of the information in the documents,' if any, `is non-exempt and how that material is dispersed through the documents.'" Elec. Frontier Found., 826 F.Supp.2d at 174 (quoting Mead Data, 566 F.2d at 261) (alterations omitted). Once it does so, the agency is "entitled to a presumption that it complied with the obligation to disclose reasonably segregable material." Hodge v. FBI, 703 F.3d 575, 582 (D.C.Cir.2013) (quotations marks and alterations omitted). This presumption "must be overcome by some `quantum of evidence' by the requester." Judicial Watch, Inc. v. U.S. Dep't of Justice, No. 12-1350, 20 F.Supp.3d 260, 277, 2014 WL 794220, at *12 (D.D.C. Feb. 28, 2014) (quoting Sussman, 494 F.3d at 1117). The Court therefore must analyze the evidence of non-segregability presented by the DIA and DODIG.
The DIA declaration asserts:
DIA Decl. ¶ 40. The declaration confirms that the agency conducted a careful review. The partial withholdings from documents V-21, V-27, V-29, and V-30 are described in sufficient detail to indicate that the agency withheld information directly related to the reason for invoking an exemption. See DIA Suppl. Decl. ¶¶ 4-5, 7-8, 12.
The DIA's withholding in full of V-70 and V-71 was justified by "affidavits that show with reasonable specificity why documents withheld pursuant to a valid exemption cannot be further segregated." Juarez, 518 F.3d at 61. The DIA determined that V-70 and V-71 "each contain[] a significant amount of sensitive information concerning the use of polygraph countermeasures that is unknown to the public" and "[t]he whole body of research discussed in documents V-70 and V-71 remains an active part of the [agency's] efforts to detect and prevent the use of polygraph countermeasures." DIA Suppl. Decl. ¶ 13. The DIA also concluded that, even if some of the vulnerabilities identified in the articles have been rectified, "harm would be caused to the overall process were it to be disclosed precisely which potential[] vulnerabilities have been suitably addressed and which remain a critical risk." Id. ¶ 14. For this reason, "it is ... not possible to segregate certain information from either of these two articles for release to plaintiff." Id.
The DODIG declaration states:
DODIG Decl. ¶ 48. This statement, combined with the DODIG declaration's description of the information redacted from the partially withheld documents, IG-1 and IG-2, is sufficient. See id. ¶ 47. The DODIG did not, however, describe "with reasonable specificity" why IG-3 and IG-4 were withheld in full. It may be that those documents contain information withheld under Exemption 7(E)—or under other exemptions that plaintiff has elected not to challenge—that is dispersed such that the documents must be withheld in full, but DODIG must "show with reasonable specificity why" this is the case. See Juarez, 518 F.3d at 61 (emphasis added).
Also before the Court is plaintiff's motion to rescind the stipulated dismissal of Count Fifteen of her Complaint. That Count challenged the DOJ Office of Legal Counsel's ("OLC") response to a FOIA request plaintiff submitted "for all records relating to polygraphs." Compl. ¶ 84. Plaintiff claims that she agreed to the stipulated dismissal of Count Fifteen because OLC assured her, through a draft Vaughn index, that it would withhold six documents
Plaintiff asserts that her counsel found one of the documents, an OLC opinion from 1967, publicly available through the CIA Records Search Tool. See id. Plaintiff's counsel brought this to the attention of defendants' counsel, who confirmed with OLC that it had consulted the appropriate agencies in determining what to withhold. See id. OLC, however, refused to provide plaintiff the level of detail about these consultations that she desired. See id. at 2-3. Accordingly, plaintiff moved to rescind the stipulated dismissal of Count Fifteen.
Plaintiff offers no legal basis for her request. Instead, she argues the merits of OLC's withholding, noting that the privileges claimed in the OLC's draft Vaughn index may be waived if published by OLC's client. Id. at 3. According to plaintiff, OLC's failure to learn of the CIA's publication of the 1967 memo demonstrates that OLC's consultations regarding the other five documents cannot be trusted. Id. at 4.
The Court reads plaintiff's motion as a request under Federal Rule of Civil Procedure 60(b), which provides:
The D.C. Circuit has held that voluntary dismissals under Rule 41(a), like the parties' Joint Stipulation, may be subject to Rule 60(b) motions. See Randall v. Merrill Lynch, 820 F.2d 1317, 1320 (D.C.Cir. 1987).
Plaintiff's failure to provide a legal basis for her request complicates matters, but the Court finds that her allegation of "a misrepresentation by OLC," Mot. to Rescind, ECF No. 30 at 1, could fall under Rule 60(b)(3), which provides relief for "fraud ... misrepresentation, or misconduct by an opposing party."
Plaintiff cannot meet this bar. She establishes only that OLC failed to learn that the CIA had previously released the 1967 Opinion. There is no evidence—much less clear and convincing evidence—that this was anything but an oversight in connection with negotiations regarding a far-ranging FOIA request. A minor oversight, without evidence of affirmative misconduct, does not support a finding of fraud. Compare Summers v. Howard Univ., 374 F.3d 1188, 1193 (D.C.Cir.2004) (granting relief under Rule 60(b)(3) where "plaintiffs engaged in repeated, affirmative efforts to keep [the relevant information] a secret from [the defendant]" and "plaintiffs concede[d] that these acts were intentional"). "There must be an end to litigation someday" and plaintiff's strategic decision to stipulate to the dismissal of Count Fifteen was the kind of "free, calculated, deliberate choice[ that is] not to be relieved from." Ackermann v. United States, 340 U.S. 193, 198, 71 S.Ct. 209, 95 L.Ed. 207 (1950).
For the foregoing reasons, the Court
