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Sack v. Department of Justice

United States District Court, D. Columbia.

August 21, 2014

KATHRYIN SACK, Plaintiff,
v.
DEPARTMENT OF JUSTICE, Defendant

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[Copyrighted Material Omitted]

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For Kathryn Sack, Plaintiff: Kelly Brian McClanahan, NATIONAL SECURITY COUNSELORS, Arlington , VA.

For Department of Justice, Defendant: Jeremy S. Simon, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Washington , DC.

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MEMORANDUM OPINION

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.

I. Background

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:

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(1) the Department of Defense Polygraph Institute or the Defense Academy of Credibility Assessment; (2) studies on discriminatory bias in polygraphy, including bye the specific researchers Gordon Barland and Sheila Reed; (3) raw data and aggregate analysis of bias in polygraphy; and (4) aggregate data on polygraph examinations generally. Id. Ex. S. The third solicited records from the FBI's Security Division on: (1) the applicability of equal employment opportunity (" EEO" ) rules to the security clearance process for job applicants; (2) polygraphs within the FBI's EEO office; and (3) restrictions on the use of polygraphs. Id. Ex AA. She also requested communications between FBI employees and consultants and Sheila Reed, a well-known polygrapher. Id. Ex. F. Then, in December 2011, Sack sent her final request to the FBI for: (1) records on training agents to qualify as polygraphers; (2) the FBI Polygraph Unit's Policy Implementation Guide; and (3) any complaints to the FBI's EEO office alleging discrimination in the security clearance process for job applicants. Id. Ex. II. In October 2011, Sack also sent a letter to OPM, which was forwarded to ATF, requesting: (1) reviews of federal agencies that conduct polygraphs; (2) records on why an agency might be excluded from OPM review; and (3) " interagency Memoranda of Agreement regarding polygraphs." Declaration of Stephanie M. Boucher, Chief, Disclosure Division ATF (" Boucher Decl." ) Ex. A, B.

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 [hard-copy 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

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Exemptions 2, 5, 6, and 7. Boucher Decl. ¶ 5-6. Among other things, AFT withheld portions of AFT Order 2123.1, which outlines a " Pre-Employment Polygraph Special Agent Screening Program," and an inter-agency email from September 2010 that " provides a clarifying interpretation" of Order 2123.1. Id. ¶ 10. It withheld portions of the order and email under Exemption 2 because it determined these documents solely related to internal personnel matters and were not the subject of genuine and significant public interest. Id. ¶ 10-15. Under Exemption 5, AFT withheld the email as pre-decisional because it interpreted the order for OPM, which was deciding whether to re-approve it for the following year. Id. ¶ ¶ 18-23. Under Exemption 7(E), ATF withheld portions of the two documents because it " believes that background investigations . . . conducted to assess an applicant's qualification for a special agent ...


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