United States District Court, District of Columbia
NOEL F. WHITTAKER, Plaintiff,
UNITED STATES DEPARTMENT OF JUSTICE, et al., Defendants.
MEMORANDUM OPINION AND ORDER
P. Mehta United States District Court Judge
agencies can request that the FBI perform a National Agency
Check on a particular person, often for pre-employment
vetting or a background investigation. The FBI then searches
its records and provides the results to the requesting
agency. Plaintiff Noel F. Whittaker is a retired analytical
chemist for the National Institutes of Health. He brought
this action under the Freedom of Information Act
(“FOIA”) to obtain a complete record of his 2007
background investigation report (“2007 Report”).
The United States Office of Personnel Management released the
report to Whittaker, but at the request of the Federal Bureau
of Investigation (“FBI”) redacted the results of
a National Agency Check contained within the 2007 Report.
U.S. Department of Justice and Office of Personnel Management
filed a Motion for Summary Judgment defending their
withholding of the National Agency Check results, and
Plaintiff filed a Cross-Motion for Summary Judgment
challenging it. The court denies the parties' motions
without prejudice for the reasons explained below.
government invokes FOIA Exemption 7(E) to withhold the
National Agency Check results from the 2007 Report.
See Defs.' Mot. for Summ. Judg., ECF No. 16, Ex.
B, ECF No. 16-4 [hereinafter Hardy Decl.], ¶ 16. FOIA
Exemption 7(E) consist of two elements. First, the requested
information must be compiled for law enforcement purposes.
See 5 U.S.C. § 552(b)(7). Second, the requested
information must “disclose techniques and procedures
for law enforcement investigations or prosecutions, or 
disclose guidelines for law enforcement investigations or
prosecutions if such disclosure could reasonably be expected
to risk circumvention of the law.” Id. §
552(b)(7)(E); see also Blackwell v. F.B.I., 646 F.3d
37, 41-42 (D.C. Cir. 2011).
concedes that information from a National Agency Check
qualify as records compiled for a law enforcement purpose.
See Pl.'s Opp'n to Defs.' Mot., ECF No.
17, at 3. The court therefore focuses on the second
requirement of Exemption 7(E) and, in particular, whether
Defendants have identified a law enforcement
“technique” or “procedure” that would
be disclosed if the redacted material were
identify three law enforcement techniques or procedures that
they say Exemption 7(E) shields from disclosure. First,
Defendants assert that disclosing the National Agency Check
results would reveal the type of information that the FBI
reviews when conducting a name check, including what is
“determine[d] to be relevant to a name check
request” and what type of information the FBI elevates
to agencies requesting a name check. See Defs.'
Reply Brief, ECF No. 20 [hereinafter Defs.' Reply], at 2.
Second, they claim that “disclosure of the withheld
information would provide an indication of whether or not
derogatory information from FBI files” exists, Hardy
Decl. ¶ 23, thereby potentially “reveal[ing] the
type of investigative material that the FBI (or other law
enforcement agencies) maintain about Whittaker, ”
Defs.' Reply at 3 (citing Hardy Decl. ¶ 27). Third,
Defendants posit that the FBI's practice of asserting
Exemption 7(E) as a matter of course to withhold National
Agency Check results is itself a law enforcement technique or
procedure that merits protection. See Hardy Decl.
¶ 25 (stating that “the application of 7(E) here
is itself a law enforcement technique or procedure”).
The court is certain that neither the second nor third
grounds qualify for protection under Exemption 7(E) but lacks
sufficient information as to the first.
not evident how revealing whether the FBI has
“derogatory” information about a requester would
disclose a law enforcement technique or procedure.
Id. ¶ 23 (stating the disclosure would reveal
“whether or not derogatory information from FBI files
is located in response to the [name check], potentially the
scope and/or volume of that information, and/or the focus of
any FBI investigative or intelligence information . . .
”). “The phrase ‘techniques and
procedures' . . . refers to how law enforcement officials
go about investigating a crime.” Allard K.
Lowenstein Int'l Human Rights Project v. Dep't of
Homeland Sec., 626 F.3d 678, 682 (2d Cir. 2010)
(emphasis added) (citation omitted). Disclosing the results
of Plaintiff's National Agency Check would not
necessarily reveal how the FBI “goes about”
collecting information returned from such inquiries. The
declarant certainly does not say so. If anything,
Defendants' effort to protect the information returned by
National Agency Check aligns more closely with FOIA Exemption
7(A), which protects information that “could reasonably
be expected to interfere with enforcement proceedings.”
5 U.S.C. § 552(b)(7)(A). Exemption 7(A) requires an
agency to show that a proceeding is “pending or
reasonably anticipated, ” Leopold v. Dep't of
Justice, 301 F.Supp.3d 13, 28 (D.D.C. 2018) (citation
omitted), but Defendants have not tried to make such a
showing as to Plaintiff.
the assertion that “the application of 7(E) here is
itself a law enforcement technique or procedure, ”
Hardy Decl. ¶ 25, the court finds that position to be
puzzling. The position is odd, to say the least, as the FBI
now has disclosed the very technique or procedure it seeks to
protect. The court is aware of no case, and Defendants cite
none, for the proposition that the practice of categorically
invoking a FOIA Exemption is itself protected from disclosure
under Exemption 7(E).
first attempt at identifying a technique or procedure
requires more discussion. According to Defendants, the FBI
uses a “mosaic approach” to withholding National
Agency Check results. Under that approach, the FBI refuses to
disclose all National Agency Check results,
regardless of whether such information exists or not, because
“a requester, or hostile criminal/foreign elements
could quickly detect this pattern and through analysis,
determine whether or not criminal or national
security-related investigation exists based on the redactions
asserted or lack thereof.” Hardy Decl. ¶ 26. In
other words, by always withholding National Agency Check
results, no requester could discern whether or not the FBI
possesses investigation information about a person.
assessing this justification, two cases provide useful
guidance. The first is the D.C. Circuit's decision in
Citizens for Responsibility & Ethics in Washington v.
U.S. Department of Justice
(“CREW”). See 746 F.3d 1082,
1102 (D.C. Cir. 2014). In CREW, Plaintiff brought a
FOIA action seeking records from the FBI concerning the
public corruption investigation of Tom Delay, the former
Majority Leader of the U.S. House of Representatives. See
Id. at 1087. In refusing to release the records, the
agency invoked Exemption 7(E) “to protect procedures
and techniques used by FBI [agents] during the
investigation.” Id. at 1102. The D.C. Circuit
held that the agency's justification was not sufficient
and that it had done no more than provide a
“near-verbatim recitation of the statutory
standard.” Id. The agency had not identified
“what procedures [were] at stake, ” and the court
queried whether the procedures might involve “how the
FBI conducts witness interviews? Or how it investigates
public corruption?” Id. Nor had the agency
explained how disclosure of the particular information
“[w]ould reveal such procedures, ” and again the
court asked, “Are the procedures spelled out in the
documents? Or would the reader be able to extrapolate what
the procedures are from the information contained
therein?” Id. The court thus made clear that
“the agency must at least provide some
explanation of what procedures are involved and how they
would be disclosed.” Id.
second case is Kalu v. Internal Revenue Service.
See159 F.Supp.3d 16 (D.D.C. 2016). There, the
plaintiff sought information to determine whether she
appeared on “some form of watch list” kept by the
FBI, because she had been subject to increased screenings at
airports and “unusual” tax audits. See
Id. at 19. The FBI refused to confirm or deny that it
had responsive records, issuing what is known as a
“Glomar response.” See Id. at
21. The FBI invoked Exemption 7(E), arguing that merely
disclosing the existence or nonexistence of a record would
itself reveal “techniques and procedures” or
“guidelines” “for law enforcement
investigations.” See Id. at 22- 24 (quoting 5
U.S.C. § 552(b)(7)). The court agreed, finding that the
FBI's declarant had shown with “reasonable
specificity” that the agency's Glomar
response was justified under Exemption 7(E). Specifically,
the declarant explained that the FBI maintains a Terrorist
Watchlist, which contains a number of sub-lists, including
the familiar No-fly List, that the FBI uses to identify
suspected terrorists. See Id. at 22. Though the
existence of these lists is publicly known, the declarant
stated, the criteria and standards for placing people on the
list is not known, and if the FBI began to make ...