United States District Court, District of Columbia
CHRISTOPHER R. COOPER, United States District Judge
Jason Mount filed a request under the Freedom of Information
Act (“FOIA”) with the Department of Homeland
Security seeking all records held by the Department's
Office of the Inspector General (“OIG”)
“regarding an allegation that . . . Supervisory Special
Agent Peter Edge lost his official credentials to a
prostitute and the credentials had to be retrieved by local
police.” Mem. P. & A. Supp. Pls.' Opp'n to
Def.'s Mot. Summ. J. (“Pls.' MSJ”) at 2.
The Department responded with a so-called
“Glomar response, ” refusing to confirm
or deny that it had any records responsive to his request. It
based its Glomar response on Exemption 7(C) of FOIA.
Mem. Supp. Def.'s Mot. Summ. J. (“Def.'s
MSJ”) at 1. The parties have filed cross motions for
summary judgment. Because the Department properly asserted
its Glomar response, the Court will grant the
Department's motion and deny Mount's.
was enacted “to promote the ‘broad disclosure of
Government records' by generally requiring federal
agencies to make their records available to the public on
request.” DiBacco v. U.S. Army, 795 F.3d 178,
183 (D.C. Cir. 2015) (citation omitted). In order to properly
balance legitimate governmental and privacy interests that
the release of documents could harm, Congress carved out nine
exemptions from FOIA's reach. See 5 U.S.C.
§ 552(b). These exceptions are to be narrowly construed,
and the agency has the burden of justifying any withholding
it makes under them. DiBacco, 795 F.3d at 183-84.
have also recognized that “[i]n certain cases, merely
acknowledging the existence of” records responsive to a
FOIA request “would itself ‘cause harm cognizable
under [a] FOIA exception.'” People for the
Ethical Treatment of Animals v. NIH
(“PETA”), 745 F.3d 535, 540 (D.C. Cir.
2014) (citation omitted) (second alteration in original). In
such situations, an agency may issue what is known as a
“Glomar response” refusing to confirm or
deny the existence (or non-existence) of any responsive
records. Id. An agency's Glomar response
is valid “if the fact of the existence or nonexistence
of agency records falls within a FOIA exception.”
Id. (citation omitted). The Court can rely on agency
affidavits to justify a Glomar response, as with
other withholdings. Id.
the Department has based its Glomar response on
Exemption 7(C), which protects from disclosure “records
or information compiled for law enforcement purposes”
whose release “could reasonably be expected to
constitute an unwarranted invasion of personal privacy,
” 5 U.S.C. § 552(b)(7)(C). If the two requirements
of Exception 7(C) are met, then that exemption
“authorizes a Glomar response unless the
public interest in disclosure is strong enough to justify the
privacy invasion.” PETA, 745 F.3d at 542.
Department contends that it meets the requirements under
Exemption 7(C) and thus its Glomar response was
proper. Mount responds that the public interest outweighs any
privacy interest and disclosure therefore is
required. Because the Court agrees that the
requirements of Exemption 7(C) are met and that Mount has
failed to demonstrate that the public interest is strong
enough to outweigh any privacy invasion, the Court will
uphold the Department's Glomar response and
grant it summary judgment.
initial matter, both requirements for Exemption 7(C) are met
here. With respect to the first requirement-that records be
compiled for law enforcement purposes-the D.C. Circuit has
articulated a two-part test: (1) that “the
investigatory activity that gave rise to the documents is
‘related to the enforcement of federal laws'”
and (2) that “there is a rational nexus between the
investigation at issue and the agency's law enforcement
duties.” Jefferson v. Dep't of Justice, Office
of Professional Responsibility, 284 F.3d 172, 177 (D.C.
Cir. 2002) (citation omitted). As Assistant Counsel to the
Inspector General Jonathan Parnes explained in his
declaration, “[o]ne of OIG's statutory
responsibilities” is to “investigate fraud,
waste, and abuse involving DHS programs and operations,
including alleged misconduct by DHS employees” and to
make referrals to the Attorney General if its investigation
yields “reasonable grounds to believe there has been a
violation of Federal criminal law.” Decl. of Jonathan
Parnes ¶ 9. Given this function, any OIG investigation
of a Special Agent losing his credentials to a prostitute
would be related to the enforcement of federal laws and
connected to OIG's law enforcement duties.
second aspect of Exception 7(C)-that the release of documents
would constitute an unwarranted invasion of personal
privacy-is also clearly met. The D.C. Circuit “ha[s]
repeatedly recognized the ‘substantial' privacy
interest held by ‘the targets of law-enforcement
investigations . . . in ensuring that their relationship to
the investigations remains secret.'” PETA,
745 F.3d at 541 (quoting Roth v. U.S. Dep't of
Justice, 641 F.3d 1161, 1174 (D.C. Cir. 2012)) (second
alteration in original). “Indeed, ‘[t]here can be
no clearer example of an unwarranted invasion of personal
privacy than to release to the public that another individual
was the subject of [a law enforcement]
investigation.'” Id. at 542 (citation
omitted) (alterations in original). That is precisely the
harm that would follow from the Department's confirmation
of any records responsive to Mount's request.
that the requirements of Exemption 7(C) are met, that
exemption “authorizes a Glomar response unless
the public interest in disclosure is strong enough to justify
the privacy invasion.” Id. Mount contends that
the public interest in knowing how the Department handles
allegations of misconduct is sufficient to override the
privacy interest here. Pl.'s MSJ at 10. But the D.C.
Circuit “ha[s] consistently found that interest,
without more, insufficient to justify disclosure when
balanced against the substantial privacy interests weighing
against revealing the targets of a law enforcement
investigation.” PETA, 745 F.3d at 543. Mount
does not provide “more” here. Consequently, under
D.C. Circuit precedent such as PETA, the public
interest is not strong enough to justify the privacy
invasion. The Department's Glomar response is
foregoing reasons, the Court will grant the Department's
motion for summary judgment and deny Mount's. A separate
Order will accompany this Memorandum Opinion.
 Secretary Nielsen, as former Secretary
Jeh Johnson's current successor, has been automatically
substituted as a party pursuant to Fed.R.Civ.P.
 This name is derived from the
CIA's refusal to confirm or deny records related to the
Hughes Glomar Explorer, a ship used in a classified
CIA project to raise a sunken Soviet submarine for U.S.