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Sheridan v. U.S. Office of Personnel Management

United States District Court, District of Columbia

September 29, 2017




         Pro se plaintiff Ronald L. Sheridan seeks access to the computer software that the Office of Personnel Management ("OPM") uses to administer background investigations to applicants for federal government jobs. (See Compl., ECF No. 1, ¶ 8.) Sheridan submitted a records request to OPM in April of 2015, asking for "[c]omputer files containing the source code" for the agency's Electronic Questionnaires for Investigations Processing ("e-QIP") system, as well as related "design and operations documentation for e-QIP." (Id. ¶ 9.) Sheridan filed the instant lawsuit after OPM failed to respond to his request; he invokes the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, and asks this Court to declare OPM's withholding "unlawful" and to order OPM to produce the requested records "without further delay." (Id., Prayer for Relief, ¶¶C-D.)

         Before this Court at present are the parties' cross-motions for summary judgment. (See Mem. in Supp. of Def.'s Mot. for Summ. J. ("Def.'s Mem."), ECF No. 8; Pl.'s Mem. in Opp'n to Def.'s Mot. for Summ. J. & in Supp. of Pl.'s Cross-Mot. for Summ. J. ("Pl.'s Mem."), ECF No. 11.) In its motion, OPM argues that the e-QIP source code and related documentation are exempt from disclosure under the FOIA pursuant to Exemption 7(E), 5 U.S.C. § 552(b)(7)(E), because the e-QIP source code and related documentation were compiled for a "law enforcement purpose" (see Def.'s Mem. at 11-12), and producing those records could reasonably be expected to increase the risk that undeserving individuals might successfully navigate the background investigation process, and also the risk that the e-QIP system will be the target of cyber-intrusion (see Id. at 12-13).[1]OPM further argues that because Exemption 7(E) applies to the requested records in their entirety, no reasonably segregable, non-exempt portions of those records can be produced to Sheridan (see Id. at 15-16), and that even if some portions of the requested records are segregable, they would nevertheless be exempt from disclosure pursuant to FOIA Exemption 2, which encompasses "matters that are . . . related solely to the internal personnel rules and practices of an agency[, ]" 5 U.S.C. § 552(b)(2). (See Def.'s Mem. at 13-15.) For his part, Sheridan maintains that neither Exemption 7(E) nor Exemption 2 applies (see Pl.'s Mem. at 10-15), and that even if they do, OPM has not adequately complied with the FOIA's segregability requirement (see Id. at 15).

         Although Sheridan's written and oral presentation in regard to this matter was exceptional for a non-lawyer advocate, for the reasons explained below, this Court agrees with OPM that the requested records are exempt from disclosure pursuant to Exemption 7(E), and that OPM has adequately complied with its obligation to identify and produce any reasonably segregable, non-exempt portions of the requested records. Accordingly, OPM's motion for summary judgment will be GRANTED and Sheridan's cross-motion for summary judgment will be DENIED. A separate Order consistent with this Memorandum Opinion will follow.

         I. BACKGROUND[2]

         "OPM functions as the human resources service provider for Federal agencies in the executive branch and, as part of that function, provides over 90% of the Government's background investigations, conducting over two million investigations a year." (Def.'s Statement of Material Facts Not in Genuine Dispute ("Def.'s SOMF"), ECF No. 8, ¶ 2; see also Decl. of Lawrence W. Anderson ("Anderson Decl."), ECF No. 8-2, ¶21.) OPM's authority to conduct background investigations derives from multiple statutes, see, e.g., 5 U.S.C. § 1304(a); 22 U.S.C. § 272b, as well as from an Executive Order that requires background investigations in order to ensure that all federal government employees are "reliable, trustworthy, of good conduct and character, and of complete and unswerving loyalty to the United States[.]" Exec. Order No. 10, 450, 3 C.F.R. 936(1949-1953 Comp.). "The principal purpose of a background investigation is to ensure that a prospective employee has not broken the law or engaged in other conduct making her ineligible for the position." Mittleman v. OPM, 76 F.3d 1240, 1243 (D.C. Cir. 1996).

         To conduct its work, OPM uses the e-QIP system, "which provides secure, web-based access for applicants to enter, update, and transmit" various background investigation forms. (Def. 's SOMF ¶ 3; see also Anderson Decl. ¶ 14.) Individuals use these forms to provide information regarding matters such as foreign contacts and financial and criminal histories. (See Def. 's SOMF¶ 4; Anderson Decl. ¶ 15.) Blank versions of background investigation forms are publicly available[3]; however, applicants can only complete and submit these forms through e-QIP at the invitation of a sponsoring agency. (See Def.'s SOMF¶ 5; Anderson Decl. ¶ 15.) The e-QIP system "allow[s] individuals to complete the appropriate investigative form and transmit the data through the requesting Government agency to OPM's central computer system." (Anderson Decl. ¶ 16.) Thus, the system is also "designed to house the completed personnel security investigative forms." (Def.'s SOMF¶ 5.)

         On April 15, 2015, Sheridan submitted a FOIA request to OPM, requesting "[c]omputer files containing the source code to the Office of Personnel Management's 'Electronic Questionnaires for the Investigations Processing (e-QIP)' application and computer files or hardcopy records containing design and operations documents for e-QIP." (Def.'s SOMF¶ 1.) After emailing twice for a status update to no avail (see Compl. ¶¶ 14-15; Exs. 3-4 to Anderson Deck), Sheridan treated the agency'slack of responsiveness as a "constructive denial" and filed an administrative appeal on February 1, 2016. (Compl.¶ 23; see also Ex. 7 to Anderson Decl.) To date, OPM has not issued any formal response to Sheridan's appeal. (See Compl. ¶ 26; Def.'s Answer to Pl.'sCompl. ("Answer"), ECF No. 5, ¶26.) See also 5 U.S.C. § 552(a)(6)(C)(i) (providing for constructive exhaustion of administrative remedies).

         On April 29, 2016, Sheridan filed the present lawsuit, alleging that OPM violated the FOIAby failing to respond to his document request and by failing to produce the requested documents. (See Compl. ¶¶ 27, 29.) Asserting claims under the FOIA, Sheridan seeks a declaration that OPM's failure to make a determination on whether or not to comply with his FOIA request within twenty working days, failure to respond to his administrative appeal within twenty working days, and failure to provide the requested records are unlawful. (See id., Prayer for Relief, ¶¶ A-C.) Sheridan also asks the Court to order OPM to produce the requested records and award him litigation costs. (See id., Prayer for Relief, ¶¶D-E.)

         The parties have filed cross-motions for summary judgment under Federal Rule of Civil Procedure 56 that are now ripe for this Court's review.[4] OPM's motion reports that the agency has searched for the records that Sheridan requested and has located several responsive items: specifically, the e-QIP source code (which is purportedly stored across 3, 241 different electronic files), and also a 79-page design manual and a 109-page operations manual. (See Def.'s Mem. at 9; Anderson Deck ¶¶ 18-19.)[5]However, OPM has declined to produce these records to Sheridan, and it argues that its withholding is justified because the records are exempt from the FOIA under Exemption 7(E), which protects from disclosure certain'"records or information compiled for law enforcement purposes'" if such disclosure might risk compromising an agency' slaw enforcement function. (Def's Mem. at 12 (quoting 5 U.S.C. § 552(b)(7)(E)).) OPM argues that, because the agency uses e-QIP to process background-investigation information, the agency's disclosure of the system's source code, structure, and operation would render e-QIP vulnerable to hacking and phishing, and would also enable undeserving individuals to pass the background-check process successfully. (See Def.'s Mem at 11-13.) In making this argument, OPM further contends that "Exemption 7(E) applies to all of the requested information and that non-exempt material could not be segregated in a manner that would provide meaningful information." (Id. at 16 (emphasis added).) In the alternative, OPM argues that even assuming that some of the requested information "is not subject to Exemption 7(E), and that any such information could be segregated in a meaningful manner from the rest of the requested information, that same information [would be] subject to Exemption 2" (id.), which protects from disclosure matters that are "related solely to the internal personnel rules and practices of an agency[.]" 5 U.S.C. § 552(b)(2). InOPM's view, Exemption 2 encompasses any segregable information in the requested records, because the records relate to hiring practices and because there is no legitimate public interest in the e-QIP source code. (SeeDef.'s Mem. at 13-15.)

         In his cross-motion, Sheridan responds to each of OPM's arguments in turn. With respect to Exemption 7(E), Sheridan argues that the requested records are not exempt because there "would be no harm in their disclosure[, ]" in light of the fact that "[understanding the information collected by e-QIP does not provide an applicant with any more information about the investigation adjudication process than simply reading the paper forms" that are already publicly available. (Pl.'sMem. at 12.) During the Court's motion hearing, Sheridan added that even if certain portions of the e-QIP source code might reveal aspects of how background investigations are processed and adjudicated-one of OPM's stated concerns-it is likely that other, segregable portions of the code would not implicate that concern, because source code is often stored in separate "modules" that perform different functions, and OPM's representation that the e-QIP code is stored across "3, 241 source code files" (see Anderson Deck ¶ 18) suggests that that is the case here. (See Hrg. Tr. at 38-39.) Finally, with respect to Exemption 2, Sheridan argues that even assuming, arguendo, that OPM has correctly characterized e-QIP as pertaining to the "internal personnel rules and practices of an agency[, ]" 5 U.S.C. § 552(b)(2), Exemption 2 does not cover the requested records because that exemption is inapplicable when there is a '"genuine and important public interest'" in the records (Pl.'s Mem. at 13 (quoting Dep't of the Air Force v. Rose, 425 U.S. 352 (1976))), and in this case, "there are significant benefits to both the public and the government when source code can be shared" because "source code can be re-used, re-purposed, and improved" (id. at 14).[6] The Court held a hearing on the parties' cross-motions on July 25, 2017. (See Min. Entry of July 25, 2017.)


         A. Summary Judgment In The FOIA Context

         FOIA cases typically are decided on motions for summary judgment. See Liberman v. U.S. Dep't of Transp., 227 F.Supp.3d 1, 8 (D.D.C. 2016). Summary judgment is warranted when "the movant shows that there is no genuine issue as to any material fact and the movant is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(a). "In a FOIA case, summary judgment maybe granted to the government if the agency proves that it has fully discharged its obligations under the FOIA, after the underlying facts and the inferences to be drawn from them are construed in the light most favorable to the FOIA requester." Media Research Ctr. v. U.S. Dep't of Justice, 818 F.Supp.2d 131, 136-37 (D.D.C. 2011) (internal quotation marks and citation omitted).

         B. Exemption 7(E)

         The FOIA "mandates that an agency disclose records on request, unless they fall within one of nine exemptions." Milner v. Dep't of Navy, 562 U.S. 562, 565 (2011). "An agency that has withheld responsive documents pursuant to a FOIA exemption can carry its burden to prove the applicability of the claimed exemption by affidavit, and [courts] review the agency's justifications therein de novo.'" Larson v. Dep 't of State, 565 F.3d 857, 862 (D.C. Cir. 2009). One of these exemptions-'Exemption 7' - permits an agency to withhold "records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information" would result in one of several enumerated harms. 5U.S.C. § 552(b)(7). One of the listed harms-codified in subsection (E) of section 552(b)(7)-is implicated where the agency's production of law enforcement records "would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law[.]" 5 U.S.C. § 552(b)(7)(E). Thus, the text of Exemption 7(E) appears to permit an agency to withhold records only if certain criteria are satisfied: (1) the records were "compiled for law enforcement purposes, " (2) production of the records "would disclose" either "techniques and procedures for law enforcement investigations or prosecutions" or "guidelines for law enforcement investigations or prosecutions[, ]" and (3) "such disclosure could reasonably be expected to risk circumvention of the law[.]" Id.; seealso Sack v. U.S. Dep't of Def, 823 F.3d 687, 693-94 (D.C. Cir. 2016).

         The requirement that records have been "compiled for law enforcement purposes" can be satisfied "even when the materials have not been compiled in the course of a specific investigation." Tax Analysts v. IRS, 294 F.3d 71, 79 (D.C. Cir. 2002). "Law enforcement entails more than just investigating and prosecuting individuals after a violation of the law[, ]" Pub. Emps. For Envtl. Responsibility v. U.S. Section, Int'l Boundary and Water Comm'n, 740 F.3d 195, 203 (D.C. Cir. 2014) (emphasis in original); it also includes '"proactive steps designed to prevent criminal activity and to maintain security.'" Id. (quoting Milner, 562 U.S. at 582 (Alito, J., concurring)). Moreover, "[t]he term 'law enforcement' in Exemption 7 refers to the act of enforcing the law, both civil and criminal." Id.

         The requirement that records "would disclose techniques and procedures for law enforcement investigations or prosecutions, " 5 U.S.C. § 552(b)(7)(E), is met, inter alia, where a record would disclose details about a law enforcement technique or procedure itself, see Blackwell v. FBI, 646 F.3d 37, 42 (D.C. Cir. 2011) (forensic examination of a computer); Sack, 823 F.3d at 694 (polygraphs), or would disclose information regarding "when . . . agencies are likely to employ" certain techniques or procedures, Sack, 823 F.3d at 694. And it is also satisfied if the record would disclose assessments about whether certain techniques or procedures "are effective." Id.

         The final element of Exemption 7(E)-i.e., the requirement that disclosure of a record "could reasonably be expected to risk circumvention of the law, " 5 U.S.C. § 552(b)(7)(E)-"sets a relatively low bar for the agency to justify withholding[.]" Blackwell, 646 F.3d at 42. In fact, "the exemption looks not just for [actual] circumvention of the law, but for a risk of circumvention; not just for an actual or certain risk of circumvention, but for an expected risk; not just for an undeniably or universally expected risk, but for a reasonably expected risk; and not just for certitude of a reasonably expected risk, but for the chance of a reasonably expected risk." Mayer Brown LLP v. IRS,562 F.3d 1190, 1193 (D.C. Cir. 2009). Consequently, "[r]ather than requiring a highly specific burden of showing how the law will be circumvented, exemption 7(E) only requires that the [agency] demonstrate[] logically ...

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