Hillier v. Department of Homeland Security

          MEMORANDUM OPINION

          DABNEY L. FRIEDRICH UNITED STATES DISTRICT JUDGE.

         Wynship 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 motion.

         I. BACKGROUND

         In 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.^[1] See Hillier v. CIA (Hillier I), No. 16-cv-1836, 2018 WL 4354947 (D.D.C. Sept. 12, 2018).

         The 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.^[2] 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.^[3] 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.

         On 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.^[4]

         II. LEGAL STANDARD

         Rule 56 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. Cir. 2011).

         “[F]ederal 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).

         III. ANALYSIS

         Based 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.^[5]

         A. Adequacy of the Search

         To 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).

         The 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 ...