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Sack v. United States Department of Defense

United States District Court, D. Columbia.

December 9, 2013

KATHRYN SACK, Plaintiff,

As Amended December 13, 2013.

Page 79

For KATHRYN SACK, Plaintiff: Kelly Brian McClanahan, NATIONAL SECURITY COUNSELORS, Arlington, VA.

For DEPARTMENT OF DEFENSE, Defendant: Jeremy S. Simon, Michelle Lo, LEAD ATTORNEYS, U.S. ATTORNEY'S OFFICE, Washington, DC.


ROBERT L. WILKINS, United States District Judge.

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Plaintiff Kathryn Sack, a University of Virginia graduate student, brings this Freedom of Information Act (" FOIA" ) challenge against the Department of Defense (" DoD" ), vis-à-vis its component agencies, the Defense Intelligence Agency (" DIA" ) and the National Security Agency (" NSA" ). Through her remaining claims, Sack argues that DIA failed to adequately search for records responsive to her FOIA requests and that it improperly withheld documents under FOIA's statutory exemptions. Additionally, Sack complains that NSA failed to categorize her as an " educational institution" requester and wrongly failed to provide her with two free hours of search time. The matter is presently before the Court on the Department's Motion for Summary Judgment. (Dkt. No.

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22). Finding that DIA's search methods were sound, and that DIA appropriately relied upon Exemption 7(E) to withhold the contested documents from release, the Court concludes that Sack's claims involving DIA lack merit. With respect to NSA, however, the Court agrees that the record contains insufficient evidence to classify Sack as an " educational institution" requester. Additionally, the Court rejects Sack's arguments surrounding the two hours of free search time. Accordingly, having carefully considered the parties' briefing, the entire record in this action, and the governing authorities and precedents, the Court concludes for the reasons that follow, that the Department's Motion will be GRANTED.


A. Factual Background

Plaintiff Kathryn Sack (" Sack" ) is a University of Virginia graduate student preparing her dissertation on the issue of polygraph bias.[2] (Compl. at ¶ 4). To gather more information in connection with her research, Sack filed eleven different FOIA requests with DIA and NSA, all of which generally sought information concerning the agencies' polygraph programs. Although Sack's Complaint asserts thirteen (13) separate counts, the scope of her claims has narrowed considerably during the pendency of this action. For purposes of this Opinion, the Court summarizes only the salient facts bearing on the claims that remain in dispute.[3]

1. Count II: DIA Request No. 0193-2011

On February 14, 2011, Sack filed three FOIA requests with DIA, only one of which remains at issue. Through that request, which Sack pursues through Count II of her Complaint, she sought " [a]ll records maintained by [DIA's] security office representing aggregate data of polygraph examinations." (Dkt. No. 22-1 (" Williams Decl." ) at ¶ 10, Ex. 3). DIA originally responded to Sack about one week later, on February 22, 2011, assigning her inquiry Request No. 0193-2011. ( Id. ¶ 11, Ex. 4). Inexplicably, Sack's request then sat dormant for quite some time until April 2012, when DIA eventually tasked the National Center for Credibility Assessment (" NCCA" ) to search for responsive records. ( Id. ¶ 12).[4]

While Sack's request expressly sought records only from DIA's Office of Security, DIA determined that responsive information was most likely to be located within NCCA, rather than the Office of Security. ( Id. ¶ ¶ 6, 8). In turn, NCCA searched its electronic records systems for information responsive to the request, using its " ProCite Database" and the NCCA shared computer electronic storage drive; NCCA also searched its paper filing system. ( Id. ¶ 12). For its electronic search, NCCA

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used keywords it thought calibrated to locate any potentially responsive records, including " bias," " gender," " race," " age," and " sexual orientation." ( Id. ). Moreover, though DIA did not reasonably expect any results, DIA also asked the Office of Security to review its records, but the Office of Security confirmed that it does not maintain any aggregate data responsive to Sack's request. ( Id. ). Ultimately, neither NCCA nor the Office of Security located any records responsive to this particular request.

2. Counts V and VI: NSA Request Nos. 64010 and 64011

Sack also submitted three FOIA requests to NSA on or around February 14, 2011. Two of these requests--pled through Counts V and VI of her Complaint--remain in dispute. Therein, Sack sought records representing aggregate data of polygraph examinations and records pertaining to equal employment opportunity rules and polygraphs, respectively. ( See Compl. at ¶ ¶ 32-43). Sack also sought classification as an " academic" or " educational institution" requester, which would have exempted her from the search-related costs associated with her request. ( See Dkt. No. 22-3 (" Janosek Decl." ) at Ex. 1). NSA acknowledged receipt of Sack's requests on March 10, 2011, assigning them case numbers 64010 and 64011. ( Id., Ex. 2). Through this same response, NSA stated that Sack could not be classified as an " academic" requester, explaining that she did not meet the criteria for " educational institution" as defined in the Code of Federal Regulations; more specifically, NSA did not believe Sack's request was made on behalf of the University of Virginia. ( Id. ¶ 9, Ex. 2).[5] Instead, NSA classified Sack as an " all other" requester, which meant that under DoD regulations, Sack was obligated to pay for search time in excess of two hours. ( Id. at Ex. 2). Based on its initial assessment, NSA estimated that the applicable search costs (not including the two free hours of search time) would amount to approximately $880.00. ( Id. ¶ 14, Ex. 2). NSA explained that Sack would be required to remit one-half of the total cost estimate ($440.00) before NSA would commence its search efforts.

Rather than doing so, Sack appealed this determination in May 2012. ( Id. ¶ 16, Ex. 3). As part of that appeal, Sack attached a letter from the University of Virginia's Director of Graduate Studies, Professor Jeffrey Jenkins, stating that Sack's objectives were " consistent with [the University's] scholarly research goals" and confirming that Sack was " acting as a representative of the University of Virginia's Department of Politics." ( Id., Ex. 3). The NSA FOIA Appeal Authority denied Sack's appeal by letter dated January 17, 2013. ( Id. ¶ 17, Ex. 4). NSA found Mr. Jenkins' letter insufficient because it confirmed that Sack was " a Ph.D. student and President's Fellow rather than a member of the faculty," and because it did not come from the Department's Chair. ( Id. ). NSA also found significant that Sack's counsel was representing only Sack individually, and not the University of Virginia or its Department of Politics. ( Id. ). Thus, Sack remained classified as an " all other" requester, with NSA requiring that Sack remit a portion of the estimated search costs before it would process her requests.

3. Count IX: DIA Request No. 0069-2010

On October 23, 2009, Sack filed a FOIA request with DIA seeking Department of

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Defense Polygraph Institute (" DoDPI" ) and Defense Academy of Credibility Assessment (" DACA" ) records that would reflect polygraph examination bias research and studies. (Williams Decl. at ¶ 9, Ex. 8).[6] Although DIA acknowledged receipt on December 18, 2009, as with Sack's other requests, it seems DIA did not take any further action for some time. ( Id. ¶ 17). Eventually, in or around April 2012, DIA conducted a search for records within NCCA, both within its paper filing system and its electronic records. ( Id. ¶ 18). For purposes of the electronic review, NCCA again searched its ProCite Database and the NCCA shared computer electronic storage drive, using the keywords " bias," " gender," " race," " age," and " sexual orientation." ( Id. ). Through its search efforts, DIA located three documents (totaling 42 pages) that were responsive to Sack's request; all three documents were released in full, and are summarized in DIA's Vaughn index at entries V-8, V-9, and V-10. ( Id.; see also Dkt. No. 22-2 (" DIA Vaughn Index" )).

4. Counts XI and XII: DIA Request Nos. 0041-2012 and 0059-2012

Sack separately filed two FOIA requests with the Federal Investigative Services Division (" FIS" ) of the Office of Personnel Management. The first of these requests, submitted on July 5, 2011, sought records about polygraphers and polygraph examinations. ( See Compl. at ¶ 67-68). The second request was filed on October 14, 2011, and sought " records pertaining to periodic reviews of agencies' polygraph programs." ( Id. ¶ 74). With respect to the first request, FIS referred two records to DIA for direct response: a Quality Assurance Program Inspection Report, and a Polygraph Memorandum of Agreement. (Williams Decl. at ¶ 22). Invoking FOIA Exemptions 3, 6, and 7(E), DIA withheld the Quality Assurance Program Inspection Report in full, and though it produced the Polygraph Memorandum of Agreement, DIA redacted portions of the document pursuant to FOIA Exemptions 3 and 6. ( Id. ¶ 23, Ex. 11; Vaughn Index). Sack was notified of this determination by letter dated March 5, 2013. (Williams Decl. at Ex. 11). As for the second request, FIS referred another seven records to DIA for direct response, all of which consisted of additional Quality Assurance Program Inspection Reports. (Williams Decl. at ¶ 24; Vaughn Index). DIA withheld all seven documents from production, pursuant to FOIA Exemptions 3, 6, and 7(E). ( Id. ).

5. Count XIII: DIA Request No. 0135-2011

Sack submitted a separate FOIA request to DIA on December 23, 2010, seeking all correspondence dating back to 2002 between DIA employees and Sheila Reed, who the parties describe as " a well-known polygraph researcher." (Williams Decl. at ¶ 25, Ex. 12). After confirming receipt of this request by letter dated January 5, 2011, it appears DIA did not pursue Sack's request any further for some time. ( Id. ¶ 26). Eventually, NCCA conducted a search for potentially responsive materials, within both its paper files and its electronic records. ( Id. ). As search terms, DIA utilized " Sheila Reed" and " Reed, Sheila," searching its ProCite Database and the NCCA share computer electronic storage drive. ( Id. ). No ...

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