United States District Court, D. Columbia.
WILLIAM H. HENDERSON, Plaintiff,
OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE, and OFFICE OF PERSONNEL MANAGEMENT, Defendants
WILLIAM H. HENDERSON, Plaintiff: Mark S. Zaid, LAW OFFICES OF
MARK S. ZAID, P.C., Bradley Prescott Moss, Washington, DC.
OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE, OFFICE OF
PERSONNEL MANAGEMENT, Defendants: Emily Sue Newton, LEAD
ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Washington, DC.
B. WALTON, UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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).
STANDARD OF REVIEW
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).
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)).
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)).
The " Law Enforcement Purposes" Threshold
Requirement Under 5 ...