United States District Court, District of Columbia
D. BATES United States District Judge
Matthew Richard Palmieri, a former contractor for the United
States, had his security clearance revoked following a
government investigation into his activities abroad. In
response, Palmieri brought a 30-count civil action against
various government agencies and officials, alleging
constitutional and statutory violations arising out of the
investigation, the subsequent administrative hearing, the
loss of his security clearance, and the government's
responses to his document requests. Most of those counts were
dismissed in a prior decision of this Court. See Palmieri
v. United States, 72 F.Supp. 3d 191 (D.D.C. 2014).
Others have been dismissed by stipulation of the parties. Now
the government has moved for summary judgment on
Palmieri's five remaining counts, which were brought
under the Freedom of Information and Privacy Acts and seek
records related to the government's investigation of
Palmieri. The Court will grant the government's motion in
FOIA and Privacy Act requests arebasedupon his account of the
government's investigation of him. According to Palmieri,
the investigation began in June 2009, when Deborah Stickney
of the Office of Naval Intelligence (ONI) "created an
agency record" regarding certain of his activities.
See Am. Compl. [ECF No. 14] at 14-15. After sharing
the records with her Special Security Officer and her
supervisor, Stickney allegedly obtained permission from the
Director of ONI to transfer the records to the Naval Criminal
Investigative Service (NCIS) at a later in-person meeting.
See PL's Opp'n [ECF No. 66] at 3-4. From
there, Palmieri contends, the investigation began in earnest.
NCIS obtained Palmieri's emails, phone records, and hard
drives; surveilled him in the streets of Manama, Bahrain;
searched his office; "interrogated [him] inside the NCIS
Middle East Field Office in Bahrain"; and subjected him
to a polygraph test. See Am. Compl. at 17-26. It
also allegedly enlisted the help of other agencies. After ONI
had provided NCIS with a Facebook photograph of Palmieri and
some friends at a restaurant, NCIS asked "U.S. Embassy
staff, " perhaps including employees of the State
Department (DOS), to help identify Palmieri's associates.
See Id. at 15-16. NCIS also requested and
obtained Office of Personnel Management (OPM) records
regarding Palmieri's security clearance. Id. at
17-18. In July 2011, after a two-year investigation, NCIS
referred Palmieri's case to the Defense Security Service
(DSS) for appropriate action. DSS decided to suspend
Palmieri's clearance. See Id. at 28-31.
a challenge to that suspension, Palmieri began sending FOIA
and Privacy Act requests to the various agencies
"involved with [his] situation, " id at 31-32,
including the five agencies discussed above. Much has
transpired since then. Palmieri filed suit in this Court, but
his case was stayed pending completion of administrative
proceedings that ultimately upheld the suspension of his
clearance. See Am. Compl. at 33-37. Once the stay
had been lifted, Palmieri filed a 30-count amended complaint
against various agencies and government officials. Many
counts alleged constitutional and statutory violations
arising out of the government's investigation and
suspension decision. Others focused on the agency
defendants' alleged denial of records under FOIA and the
Privacy Act. Twenty-five of the counts in Palmieri's
amended complaint have now been dismissed-most on the
government's motion, see Palmieri v. United
States, 72 F.Supp. 3d 191 (D.D.C. 2014), but some by
Palmieri's consent. The five remaining counts allege
violations of FOIA and the Privacy Act by defendants ONI,
DOS, DSS, NCIS, and OPM. The government has now moved for
summary judgment on all remaining counts.
cases typically and appropriately are decided on motions for
summary judgment." Defs. of Wildlife v. U.S. Border
Patrol, 623 F.Supp.2d 83, 87 (D.D.C. 2009). The Court
grants summary judgment if the movant shows that there is no
genuine dispute as to any material fact and that it is
entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a).
In a FOIA action, 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 either has been produced ... or is wholly
exempt from [FOIA's] inspection requirements.'"
Students Against Genocide v. Dep't of State, 257
F.3d 828, 833 (D.C. Cir. 2001) (quoting Goland v.
CIA, 607 F.2d 339, 352 (D.C. Cir. 1978)). Summary
judgment may be based solely on information provided in an
agency's supporting affidavits or declarations if they
describe "the documents and the justifications for
nondisclosure with reasonably specific detail, demonstrate
that the information withheld logically falls within the
claimed exemption, and are not 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 (D.C. Cir. 1981).
adequacy of an agency's search is measured by a standard
of reasonableness and is dependent upon the circumstances of
the case." Weisberg v. U.S. Dep't of
Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983) (internal
quotation marks and citation omitted). An agency must
"demonstrate beyond material doubt that its search was
reasonably calculated to uncover all relevant
documents." Valencia-Lucena v. U.S. Coast
Guard, 180 F.3d 321, 325 (D.C. Cir. 1999) (internal
quotation marks omitted). "A reasonably detailed
affidavit, setting forth the search terms and the type of
search performed[, ] is necessary to afford a FOIA requester
an opportunity to challenge the adequacy of the search and to
allow the district court to determine if the search was
adequate in order to grant summary judgment." DeBrew
v. Atwood, 792 F.3d 118, 122 (D.C. Cir. 2015) (internal
quotation marks and alteration omitted).
adequacy of a FOIA search is generally determined not by the
fruits of the search, but by the appropriateness of the
methods used to carry" it out. Iturralde v.
Comptroller of Currency, 315 F.3d311, 315 (D.C.Cir.
2003). A well-designed searchmay be adequate, therefore, even
if it fails to locate every potentially responsive document.
Stated another way, the "failure of an agency to turn up
one specific document in its search does not alone render a
search inadequate." Id; see Ancient Coin Collectors
Guild v. U.S. Dep't of State, 641 F.3d 504, 514
(D.C. Cir. 2011) (explaining that a search is not deficient
merely because a "reasonable observer would find [the
lack of] result[s] unexpected"); Espino v. U.S.
Dep't of Justice, 869 F.Supp.2d 25, 28 (D.D.C. 2012)
("[A] search is not inadequate simply because it failed
to turn up a document that [plaintiff] believes must exist,
or even a document he knows to exist.").
disclosure provision of the Privacy Act provides an
independent basis for Palmieri's record requests.
"Unlike FOIA, the Privacy Act's primary purpose is
not disclosure." Blazy v. Tenet, 194 F.3d 90,
96 (D.C. Cir. 1999). Rather, the Privacy Act aims to
"safeguard the public from unwarranted collection,
maintenance, use and dissemination of personal information
contained in agency records. It does so by allowing an
individual to participate in ensuring that his records are
accurate and properly used, and by imposing responsibilities
on federal agencies to maintain their records
accurately." Bartel v. FAA, 725 F.2d 1403, 1407
(D.C. Cir. 1984) (footnote omitted). To facilitate an
individual's participation in the recordkeeping process,
the Act includes a disclosure requirement. Agencies
maintaining "systems of records" must allow an
individual to access those records pertaining to him upon his
request. Henke v. U.S. Dep't of Commerce, 83
F.3d 1453, 1456 (D.C. Cir. 1996) (citing 5 U.S.C. §
552a(d)(l)); see also 5 U.S.C. § 552a(a)(5)
(defining "system of records").
like FOIA, the Privacy Act allows agencies to exempt certain
records from disclosure. See 5 U.S.C. §
552a(j), (k). "[W]hen a request for documents is
[properly] made under both FOIA and the Privacy Act, the
responding agency must demonstrate that the documents fall
within some exemption under each Act." Boyd
v. Exec. Office for U.S. Attorneys, 87 F.Supp. 3d 58,
86-87 (D.D.C. 2015) (internal quotation marks omitted). An
agency may not rely on a FOIA exemption to withhold from an
individual any record which is otherwise accessible to him
under the Privacy Act. 5 U.S.C. § 552a(t)(l)).
issues currently before the Court are narrower than the
sprawling record in this case might suggest. In connection
with the government's prior motion to dismiss, most of
the agency defendants provided declarations describing their
searches and the bases for their claimed FOIA and Privacy Act
exemptions. Palmieri was instructed to draw on these
declarations and identify "exactly" any remaining
issues. See Palmieri, 72 F.Supp. 3d at 214-15.
Barely engaging with those agency declarations,
Palmieri's "more definite statement" is less
exact than the Court had hoped it would be. Nonetheless, his
filing does mount challenges to the searches conducted by
ONI, DOS, DSS, and OPM, and to the exemption claims by OPMand
NCIS. Largely unsupported by citations to evidence in the
record or to relevant case law, most of those challenges are
unsuccessful. Summary judgment will be granted as to the
searches by DOS, DSS, and OPM and as to the exemption claims
by NCIS. But as to ONI's search and OPM's exemption
claims, Palmieri has said enough to survive summary judgment
for the time being.
A.Office of Naval ...