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Lamb v. Millennium Challenge Corporation

United States District Court, District of Columbia

August 30, 2019

JERRY GORALSKI LAMB, Plaintiff,
v.
MILLENNIUM CHALLENGE CORPORATION, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          RANDOLPH D. MOSS UNITED STATES DISTRICT JUDGE.

         This is the third-but, as explained below, not the last-chapter in Jerry Goralski Lamb's effort to obtain records pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, and the Privacy Act, 5 U.S.C. § 552a, relating to his background investigation and suitability determination to work as a contractor for the Millennium Challenge Corporation (“MCC”). In the first chapter, the Court dismissed a number of Lamb's claims and granted partial summary judgment in favor of the MCC, and the Court granted Lamb leave to amend his complaint to add FOIA and Privacy Act claims against the Department of State (“State Department”), which assisted the MCC in conducting Lamb's background investigation. See Lamb v. Millennium Challenge Corp., 228 F.Supp.3d 28, 36-38, 42 (D.D.C. 2017) (“Lamb I”). Following the Court's order in Lamb I, the MCC and the State Department released additional records to Lamb, and the State Department referred a 121-page document to the Department of Defense (“DOD”), which, in turn, released the document with redactions on two pages. Dkt. 63 at 6-7. The parties, then, cross-moved for summary judgment, and, in the second chapter, the Court concluded that the agencies had conducted adequate searches, upheld most of the agencies' withholdings, but determined that it needed additional information to decide whether DOD had lawfully redacted information from two pages of the 121-page document pursuant to FOIA Exemption 7(D) and Privacy Act Exemption (k)(5). See Lamb v. Millennium Challenge Corp., 334 F.Supp.3d 204, 210-18 (D.D.C. 2018) (“Lamb II”).

         In chapter three, which is now before the Court, the MCC and the State Department once again move for summary judgment, Dkt. 75, and Lamb opposes that motion and cross-moves for summary judgment, Dkt. 77. For the reasons explained below, the Court will DENY both motions without prejudice.

         I. BACKGROUND

         The facts and procedural history of this action are set out in the Court's past opinions, see Lamb I, 228 F.Supp.3d at 33-35; Lamb II, 334 F.Supp.3d. at 208-10, and the Court will only briefly recount them here.

         On February 22, 2016, Lamb began work as a contractor for the MCC in a position that required a “favorable background check.” Lamb I, 228 F.Supp.3d. at 34. Although Lamb believed that he had been cleared for the job, about two weeks after starting work he was contacted by MCC security and was told that a State Department contractor needed to interview him as part of his background investigation. Id. Lamb's background investigation was then conducted in part by the MCC and in part by the State Department, which, at times, assists the MCC in completing background investigations. Id. On April 18, 2016, MCC officials confiscated Lamb's government identification, removed him from the premises, and terminated his employment. Id. Later, Lamb learned from his employer, which held the contract with the MCC, that he was terminated because his “security check came back unfavorable.” Id. (citation omitted).

         Seeking to get to the bottom of the matter, Lamb submitted a FOIA and Privacy Act request to the MCC for “copies of all information maintained about himself, ” and, when the MCC failed timely to respond, he brought this suit. Id. The Court's prior opinions, Lamb I and Lamb II, addressed an array of disputes regarding the records Lamb seeks, which for present purposes, are not relevant. Rather, the pending cross-motions focus on a single, narrow dispute: the lawfulness of the redactions to two pages of a single document. After Lamb I, the MCC released several records and the State Department referred a 121-page document to DOD. DOD, in turn, released that document but with redactions on two pages. See Lamb II, 334 F.Supp. 3 at 210.

         In Lamb II, Defendants argued that the redactions were lawful pursuant to FOIA Exemptions 7(C) and 7(D), and Privacy Act Exemption (k)(5). Id. at 215. In support of that contention, Defendants offered the declaration of Roxanne Jensen, the Acting Branch Chief of the Information Release Branch of the Air Force Office of Special Investigations (“AFOSI”). Id. Based on that declaration, the Court concluded that DOD lawfully redacted certain personal information pursuant to FOIA Exemption 7(C). Id. (citation omitted). The Court was unconvinced, however, that DOD had adequately explained its decision to redact other information pursuant to FOIA Exemption 7(D) and Privacy Act Exemption (k)(5). Id. at 217. FOIA Exemption 7(D) applies to records compiled for law enforcement purposes that “could reasonably be expected to disclose the identity of a confidential source . . . [or] information furnished by a confidential source.” 5 U.S.C. § 552(b)(7)(D). As the Court explained, the Jensen declaration failed to provide sufficient information to permit the Court to determine whether the source had received an express or implied assurance of confidentiality. Lamb II, 334 F.Supp.3d at 217. Privacy Act Exemption (k)(5), in turn, permits the head of an agency to promulgate rules exempting:

any system of records [that consists of] investigatory material compiled solely for the purpose of determining suitability, eligibility, or qualifications for Federal civilian employment, . . . Federal contracts, or access to classified information, but only to the extent that the disclosure of such material would reveal the identity of a source who furnished information to the Government under an express promise that the identity of the sourse would be held in confidence.

5 U.S.C. § 552a(k)(5). As the Court explained, the Jensen declaration failed to provide sufficient information to permit the Court to determine whether the source at issue had received an “express promise” of confidentiality or to identify the system of records at issue. Lamb II, 334 F.Supp.3d at 218.

         Following the Court's decision in Lamb II, Defendants have once again moved for summary judgment. Dkt. 75 at 7. This time, however, they no longer rely on Privacy Act Exemption (k)(5) and, instead, invoke Exemption (j)(2). Id. at 7. They continue to rely on FOIA Exemption 7(D) and have provided some additional information regarding the nature of the confidential source they seek to protect. Lamb opposes the motion and has cross-moved for summary judgment. Dkt. 77.

         II. ANALYSIS

         Where an interested person submits a request for records under both the Privacy Act and FOIA, the responding agency may withhold or redact records only if the records at issue are subject to a relevant exemption “under each Act.” Martin v. Office of Special Counsel, Merit Sys. Prot. Bd., 819 F.2d 1181, 1184 (D.C. Cir. 1987) (emphasis in original); see also The Privacy Act of 1974, 5 U.S.C. § 552a(t)(2) (“No agency shall rely on any exemption in [the Privacy Act] to withhold from an individual any record which is otherwise accessible to such individual under the provisions of [the FOIA].”). The Court must, accordingly, separately consider whether DOD lawfully redacted portions of the 121-page document under FOIA and whether the document is exempt under the Privacy Act.

         A. Privacy Act ...


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