United States District Court, District of Columbia
WYNSHIP W. HILLIER, Plaintiff,
DEPARTMENT OF HOMELAND SECURITY, Defendant.
L. FRIEDRICH UNITED STATES DISTRICT JUDGE.
Hillier, proceeding pro se, brings this action
against the Department of Homeland Security (DHS) under the
Privacy Act of 1974, 5 U.S.C. § 552a. Before the Court
is DHS’s Renewed Motion for Summary Judgment, Dkt. 73.
For the reasons that follow, the Court will grant DHS’s
2012, Hillier filed Privacy Act requests with the Central
Intelligence Agency, DHS, and the U.S. Department of State,
seeking records concerning alleged “involuntary
outpatient treatment” that “seemed to have
Federal cooperation.” Second Am. Compl. ¶ 2, Dkt.
33. On September 12, 2018, this Court granted in part the
government’s motion for summary judgment with respect
to the CIA and the Department of State and denied the motion
in part with respect to DHS. See Hillier v. CIA
(Hillier I), No. 16-cv-1836, 2018 WL 4354947 (D.D.C.
Sept. 12, 2018).
search of one database remains in dispute: DHS’s search
of the DHS/ALL-031 database, or the Information Sharing
Environment (ISE) Suspicious Activity Reporting (SAR)
Initiative System of Records. In its initial opinion, the Court
ruled that DHS’s declaration lacked sufficient detail
for the Court to determine whether DHS’s search was
adequate. See Hillier I at *13.
Specifically, the Court held that it was unclear (1) whether
the Office of Intelligence and Analysis was the only DHS
component reasonably likely to have responsive records in
DHS/ALL-031, and (2) whether the Office’s searches of
DHS/ALL-031 covered all DHS components’ suspicious
activity reports or only the Office’s reports.
See September 12, 2018 Order at 1; Hillier
I at *13–14.
December 20, 2018, DHS filed a renewed motion for summary
judgment, supported by supplemental declarations from Brendan
Henry, DHS’s Acting Chief of the Privacy and
Intelligence Oversight Branch of the Office of Intelligence
and Analysis, and James V.M.L. Holzer, the Deputy Chief FOIA
Officer for the DHS Privacy Office. See Henry Decl.
¶ 1, Dkt. 73-1; Holzer Decl. ¶¶ 1–2,
Dkt. 73-8. In response, Hillier filed an opposition to the
renewed motion for summary judgment, Dkt. 77, a motion for
discovery conference, Dkt. 84, and a motion to take judicial
notice, Dkt. 85.
of the Federal Rules of Civil Procedure mandates that
“[t]he court shall grant summary judgment if the movant
shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(a). A “material” fact
is one with the potential to change the substantive outcome
of the litigation. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A dispute is
“genuine” if a reasonable jury could determine
that the evidence warrants a verdict for the nonmoving party.
See Id . All facts and inferences must be viewed in
the light most favorable to the requester, and in a FOIA
case, the agency bears the burden of showing that it complied
with the applicable legal standard. See Reeves v.
Sanderson Plumbing Prods., 530 U.S. 133, 150 (2000);
Chambers v. U.S. Dep’t of Interior, 568 F.3d
998, 1003 (D.C. Cir. 2009). Courts in this jurisdiction
recognize that “the vast majority of FOIA cases can be
resolved on summary judgment.” Brayton v. Office of
the U.S. Trade Representative, 641 F.3d 521, 527 (D.C.
courts . . . rely on government affidavits to determine
whether the statutory obligations” have been met.
Perry v. Block, 684 F.2d 121, 126 (D.C. Cir. 1982)
(per curiam). Agency affidavits are accorded a presumption of
good faith, SafeCard Servs., Inc. v. SEC, 926 F.2d
1197, 1200 (D.C. Cir. 1991), and “[s]ummary judgment
may be granted on the basis of agency affidavits if they
contain reasonable specificity of detail rather than merely
conclusory statements, and if they are not called into
question by contradictory evidence in the record or by
evidence of agency bad faith, ” Judicial Watch,
Inc. v. U.S. Secret Serv., 726 F.3d 208, 215 (D.C. Cir.
2013) (internal quotation marks omitted).
on all of DHS’s declarations, including the Henry
declaration, the Holzer declaration and the earlier
declaration from former Privacy and Intelligence Oversight
Branch Chief Arthur Sepeta, Dkt. 40-2, the Court concludes
that DHS conducted an adequate search. As explained here,
DHS’s supplemental declarations clarify that the Office
of Intelligence and Analysis’s search of DHS/ALL-031
covered all DHS components’ suspicious activity
reports. The Court also rejects Hillier’s requests for
an in camera review because DHS’s supplemental
declarations are sufficiently detailed and the record shows
no evidence of bad faith.
Adequacy of the Search
prevail on a motion for summary judgment regarding the
adequacy of a search, an agency must show “beyond
material doubt” that it “conducted a search
reasonably calculated to uncover all relevant
documents.” Weisberg v. U.S. Dep’t of
Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983). This
standard applies to requests under both FOIA and the Privacy
Act. See Chambers, 568 F.3d at 1005 (stating that
“the Privacy Act, like FOIA, requires” that a
search be “reasonably calculated to uncover all
relevant documents” (internal quotation marks
omitted)); see also Hill v. U.S. Air Force,
795 F.2d 1067, 1069 (D.C. Cir. 1986) (per curiam). The
relevant standard for this inquiry is “reasonableness,
” Truitt v. Dep’t of State, 897 F.2d
540, 542 (D.C. Cir. 1990) (citation omitted), not whether the
agency “actually uncovered every document extant,
” SafeCard Servs., 926 F.2d at 1201. A search
is considered adequate when an agency shows that “it
made a good faith effort” and used “methods which
can be reasonably expected to produce” the requested
records. Oglesby v. U.S. Dep’t of Army, 920
F.2d 57, 68 (D.C. Cir. 1990). Simply put, the government must
“show that its search efforts were reasonable and
logically organized to uncover relevant documents, ”
but “it need not knock down every search design
advanced by [the] requester.” DiBacco v. U.S.
Army, 795 F.3d 178, 191 (D.C. Cir. 2015). At the summary
judgment stage, the court can rely on “a reasonably
detailed affidavit, setting forth the search terms and the
type of search performed, and averring that all files likely
to contain responsive materials (if such records exist) were
searched.” Chambers, 568 F.3d at 1003
(internal quotation marks omitted).
search was reasonable because the Henry and Holzer
declarations clarify that the Office of Intelligence and
Analysis’s search of DHS/ALL-031 covered the suspicious
activity reports of that office and all other DHS components.
As explained, the Privacy Office referred Hillier’s
DHS/ALL-031 request to the Office of Intelligence and
Analysis because that office uses the DHS/ALL-031 system to
compile and access suspicious activity reports, which are
maintained on the DHS Nationwide Suspicious Activity Report
Initiative (NSI) Shared Space Server. See Holzer
Decl. ¶¶ 5–7. The NSI Shared Space program
allowed the Office of Intelligence and Analysis to query and
retrieve any responsive records from all DHS components.
See Id . ¶ 6; Henry Decl. ¶ 11. Further,
“[a]dditional searches by other DHS components being
granted access ...