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Henderson v. Office of Director of National Intelligence

United States District Court, D. Columbia.

February 25, 2016

WILLIAM H. HENDERSON, Plaintiff,
v.
OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE, and OFFICE OF PERSONNEL MANAGEMENT, Defendants

          For WILLIAM H. HENDERSON, Plaintiff: Mark S. Zaid, LAW OFFICES OF MARK S. ZAID, P.C., Bradley Prescott Moss, Washington, DC.

         For OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE, OFFICE OF PERSONNEL MANAGEMENT, Defendants: Emily Sue Newton, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Washington, DC.

         MEMORANDUM OPINION

         REGGIE B. WALTON, UNITED STATES DISTRICT JUDGE.

         William H. Henderson, the plaintiff in this civil matter, alleges that the defendants, the Office of the Director of National Intelligence (" ODNI" ) and the Office of Personnel Management (" OPM" ), violated the Freedom of Information Act (" FOIA" ), 5 U.S.C. § 552 (2012), by improperly withholding information subject to disclosure under the FOIA. Complaint (" Compl." ) ¶ ¶ 20, 25. Pending before the Court is the Defendants' Motion for Summary Judgment (" Defs.' Mot." ), which asserts that the information at issue was properly withheld pursuant to 5 U.S.C. § 552(b)(7)(E) (" Exemption 7(E)" ), Defendants' Memorandum of Law in Support of Their Motion for Summary Judgment (" Defs.' Mem." ) at 1. After carefully considering the parties' submissions, the Court concludes for the reasons that follow that it must grant summary judgment to the defendants.[1]

         I. BACKGROUND

         In December 2012, the OPM and the ODNI jointly issued a revised version of the Federal Investigative Standards (" FIS" ), which " provide the standards for all security and suitability background investigations of individuals working for, or on behalf of, the executive branch or who seek to perform work for, or on behalf of, the executive branch and individuals with access to federally controlled facilities and information systems." Defs.' Facts ¶ 2; Pl.'s Facts ¶ 2. " The FIS contain detailed procedures for conducting background investigations, including the specific types of records to be gathered and types of sources to be contacted or interviewed." Defs.' Facts ¶ 2; Pl.'s Facts ¶ 2. The sole appendix to the FIS, the Expandable Focused Investigation Model (" EFI Model" ), " sets forth the steps investigators are to pursue if derogatory or discrepant information develops during the course of an investigation." Defs.' Facts ¶ 2; Pl.'s Facts ¶ 2.

         The plaintiff, who heads a " personnel security consulting firm," Compl. ¶ 3, submitted FOIA requests to the OPM and the ODNI in July 2013 seeking from each defendant the disclosure of " the December 2012 version of the Federal Investigative Standards." Defs.' Facts ¶ 1; Pl.'s Facts ¶ 1. In September 2013, the OPM informed the plaintiff that it had determined that the FIS and EFI Model would be withheld in full under Exemption 7(E) of the FOIA, and the ODNI concurred with the OPM's determination. Defs.' Facts ¶ 5; Pl.'s Facts ¶ 5. In April 2014, after an administrative appeal of the defendants' initial decision to withhold the requested information, the OPM, with the ODNI's concurrence, partially released portions of the FIS but continued to withhold the EFI Model in its entirety. See Defs.' Facts ¶ ¶ 7-8; Pl.'s Facts ¶ ¶ 7-8. The defendants relied on Exemption 6 of the FOIA, 5 U.S.C. § 552(b)(6), and Exemption 7(E) to support the redactions to the FIS and withholding of the EFI Model. Defs.' Facts ¶ 8; Pl.'s Facts ¶ 8.

         That same month, the plaintiff lodged a second administrative appeal that challenged the defendants' reliance on Exemption 7(E) to withhold the requested information. Defs.' Facts ¶ 9; Pl.'s Facts ¶ 9. Several months after his second appeal, the plaintiff filed his complaint in this Court seeking to compel the defendants to disclose the balance of the information he requested. Defs.' Facts ¶ 11; Pl.'s Facts ¶ 11. After the complaint was filed and answered, the defendants provided a less redacted version of the FIS in May 2015, but continued to withhold the EFI Model in its entirety. Defs.' Facts ¶ ¶ 11-12; Pl.'s Facts ¶ ¶ 11-12; see also Defs.' Mem., Exhibit (" Ex." ) C (redacted version of FIS disclosed to the plaintiff in May 2015). The defendants continued to rely on Exemption 7(E) to justify their redactions from the FIS and their continued withholding of the entire EFI Model. Defs.' Facts ¶ 12; Pl.'s Facts ¶ 12. Then, in July 2015, the defendants provided yet another redacted version of the FIS, which " removed certain redactions from the copy produced to [the p]laintiff on May 29, 2015, in order to be consistent with the copy provided to [the p]laintiff on April 1, 2014." Defs.' Facts ¶ 14; Pl.'s Facts ¶ 14. The defendants continue to justify their redactions to the FIS and withholding of the EFI Model based on Exemption 7(E). See Defs.' Facts ¶ 15; Pl.'s Facts ¶ 15; see also Defs.' Mem., Ex. E (redacted version of FIS disclosed to the plaintiff in July 2015).

         II. STANDARD OF REVIEW

         Courts will grant a motion for summary judgment " if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). In resolving a motion for summary judgment, all reasonable inferences that may be gleaned from the facts before the court must be construed in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The moving party bears the burden of demonstrating the absence of a genuine issue of material fact, Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), and may do so by " citing to particular parts of materials in the record, including . . . affidavits or declarations," Fed.R.Civ.P. 56(c)(1)(A). Factual assertions in the moving party's affidavits or declarations may be accepted as true unless the opposing party submits affidavits, declarations, or documentary evidence to the contrary. Neal v. Kelly, 963 F.2d 453, 456, 295 U.S.App.D.C. 350 (D.C. Cir. 1992).

         Courts review an agency's response to a FOIA request de novo, 5 U.S.C. § 552(a)(4)(B), and " FOIA cases typically and appropriately are decided on motions for summary judgment," ViroPharma, Inc. v. Dep't of Health & Human Servs., 839 F.Supp.2d 184, 189 (D.D.C. 2012) (citations omitted). In a FOIA action to compel production of agency records, the agency " is entitled to summary judgment if no material facts are in dispute and if it demonstrates 'that each document that falls within the class requested has either been produced . . . or is wholly exempt from the [FOIA's] inspection requirements.'" Students Against Genocide v. U.S. Dep't of State, 257 F.3d 828, 833, 347 U.S.App.D.C. 235 (D.C. Cir. 2001) (quoting Goland v. CIA, 607 F.2d 339, 352, 197 U.S.App.D.C. 25 (D.C. Cir. 1978)). And " even if [the] agency establishes an exemption, it must nonetheless disclose all reasonably segregable, nonexempt portions of the requested record(s)" to comply with its requirements under the FOIA. Roth v. United States DOJ, 642 F.3d 1161, 1167 (D.C. Cir. 2011) (quoting Assassination Archives & Research Ctr. v. CIA, 334 F.3d 55, 57, 357 U.S.App.D.C. 217 (D.C. Cir. 2003)).

         Summary judgment in a FOIA case may be based solely on information provided in an agency's supporting affidavits or declarations if they are " relatively detailed and non-conclusory." SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200, 288 U.S.App.D.C. 324 (D.C. Cir. 1991) (quoting Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771, 224 U.S.App.D.C. 1 (D.C. Cir. 1981)). The affidavits or declarations should " describe the documents and the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and [] not [be] controverted by either contrary evidence in the record [or] by evidence of agency bad faith." Military Audit Project v. Casey, 656 F.2d 724, 738, 211 U.S.App.D.C. 135 (D.C. Cir. 1981). " To successfully challenge an agency's showing that it complied with the FOIA, the plaintiff must come forward with 'specific facts' demonstrating that there is a genuine issue with respect to whether the agency has improperly withheld extant agency records." Span v. United States DOJ, 696 F.Supp.2d 113, 119 (D.D.C. 2010) (quoting United States DOJ v. Tax Analysts, 492 U.S. 136, 142, 109 S.Ct. 2841, 106 L.Ed.2d 112 (1989)).

         III. ANALYSIS

         A. The " Law Enforcement Purposes" Threshold Requirement Under 5 ...


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