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Palmieri v. United States

United States District Court, District of Columbia

June 16, 2016

UNITED STATES OF AMERICA, et al., Defendants.


          JOHN D. BATES United States District Judge

         Plaintiff 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 part.


         Palmieri's 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.

         Preparing 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.[1] The five remaining counts allege violations of FOIA and the Privacy Act by defendants ONI, DOS, DSS, NCIS, and OPM.[2] The government has now moved for summary judgment on all remaining counts.


         "FOIA 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).

         "The 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).

         "[T]he 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.").

         The 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").

         But 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)).


         The 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 ...

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