Sack v. Department of Justice , 65 F. Supp. 3d 29 ( 2014 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
KATHRYIN SACK,
Plaintiff,
v. Case No. 1:12-cv-01755 (CRC)
DEPARTMENT OF JUSTICE,
Defendant.
MEMORANDUM OPINION
Plaintiff Kathryn Sack seeks to compel four Department of Justice (“DOJ”) components to
conduct additional searches and produce withheld records in response to her FOIA requests for
information on polygraph bias. The DOJ has moved for summary judgment, arguing that it
conducted adequate searches and properly withheld records under FOIA Exemptions 2, 5, 6, and 7.
Sack limits her opposition to challenging the adequacy of the DOJ’s search for records regarding a
Department of Defense polygraph institute, to which it repeatedly directed Sack, and its
withholding of certain records regarding the ATF’s administration of polygraphs to prospective
special agents. Because the DOJ has not demonstrated that it conducted an adequate search for
these particular records and has improperly invoked Exemptions 2 and 5, the Court will deny the
government’s motion in part.
I. Background
Kathryn Sack is a University of Virginia PhD student studying bias in polygraph
examinations. Compl. ¶ 4. Sack submitted six requests under the Freedom of Information Act
(“FOIA”), 5 U.S.C. § 552, for records from the Federal Bureau of Investigations (“FBI”) regarding
polygraph bias and FBI polygraphers between 2009 and 2011, as well as a request to the Office of
Personnel Management (“OPM”), which referred the request to the Bureau of Alcohol, Tobacco,
and Firearms (“ATF”) and the Justice Management Division. Id. ¶¶ 7–62. She brings this action to
compel the FBI and ATF to conduct additional searches and provide withheld documents that
respond to these requests. Sack has declined to challenge the DOJ’s motion for summary judgment
as to some of her requests, Opp. to Mot. for Summ. J. at 2, and thus the Court will limit its
recitation of the facts as to those requests.
Sack submitted her first request in December 2009, seeking “information on polygraph bias
that is illegal under equal employment law” from the FBI. Declaration of David M. Hardy, Section
Chief, Record/Information Dissemination Section, FBI Records Management Division (“Hardy
Decl.”) ¶ 1 & Ex. A. Two years later, Sack submitted four more requests through counsel. Compl.
¶ 22. The first asked for documents regarding: (1) research on bias in polygraph examinations; (2)
incentive systems for polygraphers to “obtain confessions”; (3) the job description of polygrapher at
the FBI; and (4) studies on sensitivity and accuracy rates of polygraphy. Hardy Decl. Ex. K. The
second requested research and records on: (1) the Department of Defense Polygraph Institute or the
Defense Academy of Credibility Assessment; (2) studies on discriminatory bias in polygraphy,
including by the specific researchers Gordon Barland and Sheila Reed; (3) raw data and aggregate
analysis of bias in polygraphy; and (4) aggregate data on polygraph examinations generally. Id. Ex.
S. The third solicited records from the FBI’s Security Division on: (1) the applicability of equal
employment opportunity (“EEO”) rules to the security clearance process for job applicants; (2)
polygraphs within the FBI’s EEO office; and (3) restrictions on the use of polygraphs. Id. Ex AA.
She also requested communications between FBI employees and consultants and Sheila Reed, a
well-known polygrapher. Id. Ex. F. Then, in December 2011, Sack sent her final request to the
FBI for: (1) records on training agents to qualify as polygraphers; (2) the FBI Polygraph Unit’s
Policy Implementation Guide; and (3) any complaints to the FBI’s EEO office alleging
discrimination in the security clearance process for job applicants. Id. Ex. II. In October 2011,
2
Sack also sent a letter to OPM, which was forwarded to ATF, requesting: (1) reviews of federal
agencies that conduct polygraphs; (2) records on why an agency might be excluded from OPM
review; and (3) “interagency Memoranda of Agreement regarding polygraphs.” Declaration of
Stephanie M. Boucher, Chief, Disclosure Division ATF (“Boucher Decl.”) Ex. A, B.
The FBI, through the declaration of David Hardy, states that it responded to Sack’s requests
by searching its central records system, intranet, investigative manuals, and nine offices or divisions
of the Agency. Hardy Decl. ¶ 61. FBI personnel searched the central records system “in an effort
to locate records indexed under ‘polygraph bias,’ ‘Sheila Reed,’ and ‘Gordon Barland’” but
uncovered no records in response to any of Sack’s requests. Id. ¶ 62. The files of the Security
Division and its Polygraph Unit “were searched no less than six times throughout the processing of
[Sack’s] requests . . . and located 133 pages of responsive records.” Id. ¶ 63. Hardy explains that
the “Chief of the Polygraph Unit/Supervisory Special Agent is familiar with the types of records
maintained by the unit” and that he tasked the Polygraph unit employees to “conduct searches of
hard copy and electronic records” for materials responsive to Sack’s various requests. Id. ¶¶ 64–66.
Likewise, the Chief of the Behavior Sciences Unit “checked the list of current research projects for
BSU . . . . canvassed employees . . . . [and tasked employees] with searching their files . . . for any
correspondence or e-mails involving Sheila Reed.” Id. ¶ 68. Similarly, Laboratory Division
employees were asked about whether the division had ever done polygraph research and directed to
search for correspondence with Sheila Reed. Id. ¶ 69. In the Mobile Field Office, several
employees involved in the polygraph program “reviewed the [hard-copy and electronic files
maintained by the field office regarding polygraphs] and advised that the office does not maintain
any records responsive to plaintiff’s requests[.]” Id. ¶ 70. Employees of the Birmingham Field
Office did the same. Id. ¶ 71. Employees reviewed the FBI’s intranet using the terms “polygraph”
and “polygraph bias” and discovered chapters of security policy manuals, which were deemed
3
responsive. Id. ¶ 72. Similarly, the Office of Equal Employment Opportunity Affairs ran searches
of its database for the term “polygraph.” Id. ¶ 73.
ATF, through the declaration of Stephanie Boucher, states that it was referred several
documents that OPM marked as responsive and determined that some should be withheld in part
under FOIA Exemptions 2, 5, 6, and 7. Boucher Decl. ¶ 5–6. Among other things, AFT withheld
portions of AFT Order 2123.1, which outlines a “Pre-Employment Polygraph Special Agent
Screening Program,” and an inter-agency email from September 2010 that “provides a clarifying
interpretation” of Order 2123.1. Id. ¶ 10. It withheld portions of the order and email under
Exemption 2 because it determined these documents solely related to internal personnel matters and
were not the subject of genuine and significant public interest. Id. ¶ 10–15. Under Exemption 5,
AFT withheld the email as pre-decisional because it interpreted the order for OPM, which was
deciding whether to re-approve it for the following year. Id. ¶¶ 18–23. Under Exemption 7(E),
ATF withheld portions of the two documents because it “believes that background investigations
. . . conducted to assess an applicant’s qualification for a special agent position . . . inherently relate
to law enforcement” and that revealing the withheld information would “assist applicants to
manipulate or circumvent ATF’s polygraph procedures[.]” Id. ¶¶ 43–46.
II. Legal Standard
Summary Judgment is appropriate when the pleadings, affidavits, exhibits, and other
evidence before the Court demonstrate that there is no genuine issue of material fact in dispute, and
that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The movant has
the burden to demonstrate that there are no issues of material fact in dispute that may affect the
outcome of the case under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). The Court must accept all evidence of the non-movant and draw all reasonable inferences
in the non-movant’s favor. Id. at 255.
4
FOIA cases such as this are typically decided on motions for summary judgment. E.g.,
Shapiro v. DOJ, 969 F. Supp. 2d 18, 26 (D.D.C. 2013), appeal dismissed, 13-5345, 2014 WL
1378748 (D.C. Cir. Feb. 26, 2014) (citing Brayton v. Office of the U.S. Trade Rep., 641 F.3d 521,
527 (D.C. Cir. 2011)). In order to meet its FOIA obligations and prevail on a motion for summary
judgment the government must demonstrate that it conducted an adequate search and produced all
responsive records not properly withheld under FOIA’s nine statutory exemptions. Weisberg v.
DOJ, 627 F.2d 365, 368 (D.C. Cir. 1980).
The government may satisfy this burden through affidavits setting forth in reasonable
specificity its search methods and the justifications for its withholdings. Consumer Fed’n of Am. v.
Dep’t of Agric., 455 F.3d 283, 287 (D.C. Cir. 2006). The government cannot satisfy its burden with
affidavits that are vague or conclusory, or merely parrot the statutory standard. Id. An agency
affidavit will be afforded “substantial weight[] so long as it . . . is not contradicted by contrary
evidence in the record or by evidence of the agency’s bad faith[.]” Judicial Watch, Inc. v. DOD,
715 F.3d 937, 940–41 (D.C. Cir. 2013) (quotation omitted). “Ultimately, an agency’s justification
for invoking a FOIA exemption is sufficient if it appears ‘logical’ or ‘plausible.’” Wolf v. CIA, 473
F.3d 370, 374–75 (D.C. Cir. 2007) (quoting Gardels v. CIA, 689 F.2d 1100, 1105 (D.C. Cir. 1982)).
Plausible, non-conclusory government affidavits “cannot be rebutted by ‘purely speculative claims
about the existence and discoverability of other documents.’” Safecard Servs., Inc. v. SEC, 926
F.2d 1197, 1200 (D.C. Cir. 1991) (quoting Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771
(D.C. Cir. 1981)).
III. Analysis
A. Adequacy of Search
To meet its FOIA obligations, an agency must show that it “conducted a search reasonably
calculated to uncover all relevant documents.” Weisberg v. DOJ, 705 F.2d 1344, 1351 (D.C. Cir.
5
1983). The agency is not required to prove that it discovered every possibly relevant document, id.
at 1485, but must demonstrate “a good faith effort[.]” Oglesby v. Dep’t of the Army, 920 F.2d 57,
68 (D.C. Cir. 1990). The Court will judge the adequacy of an agency’s search for documents by a
standard of reasonableness that “depends, not surprisingly, upon the facts of each case.” Weisberg,
705 F.2d at 1485.
The Court may grant summary judgment on the basis of agency affidavits and declarations
alone when they are “relatively detailed and non-conclusory.” SafeCard Servs., Inc. v. SEC, 926
F.2d 1197, 1200 (D.C. Cir. 1991). The affidavits need not “set forth with meticulous
documentation the details of an epic search for the requested records[.]” Perry v. Block, 684 F.2d
121, 127 (D.C. Cir. 1982). But they must describe “what records were searched, by whom, and
through what processes,” Steinberg v. DOJ, 23 F.3d 548, 551–52 (D.C. Cir. 2008) (citing Weisberg,
627 F.2d at 37), and should “set[] forth the search terms and the type of search performed and
aver[] that all files likely to contain responsive materials . . . were searched.” Ogelsby, 920 F.2d at
68. There is a presumption of good faith accorded to agency submitted affidavits or declarations,
“which cannot be rebutted by ‘purely speculative claims about the existence and discoverability of
other documents.’” SafeCard Servs., 926 F.2d at 1200 (quoting Ground Saucer Watch, Inc. v. CIA,
692 F.2d 770, 771 (D.C. Cir. 1981)).
Sack specifically challenges the government’s response to her request to the FBI for
“records pertaining to the Department of Defense Polygraph Institute (“DoDPI”) or the Defense
Academy [for] Credibility Assessment (“DACA”)[,]” which is now known as the National Center
for Credibility Assessment (“NCCA”). Opp. to Mot. for Summ J. at 5. She expresses incredulity at
the lack of records the FBI produced regarding this entity because the FBI encouraged Sack to
contact NCCA regarding her requests no fewer than five times, Hardy Decl. ¶¶ 9, 29, 63, 70, 71,
6
and because all FBI polygraphers apparently receive training at NCCA. Opp. to Mot. for Summ. J.
at 5–6.
The government is correct that a FOIA plaintiff cannot succeed in challenging the adequacy
of the government’s search by hypothesizing that additional records should have been discovered,
e.g. Wilbur v. CIA, 355 F.2d 675, 678 (D.C. Cir. 2004), but this does not end the matter. It remains
the government’s burden to provide affidavits demonstrating that it conducted an adequate search,
Weisberg, 705 F.2d at 1344. The Court concludes it has failed to do so here.
Perhaps because of the multitude of requests Sack submitted, the government omits key
details from its descriptions of its searches regarding Sack’s DACA request. For instance, Mr.
Hardy states that the FBI searched its central record systems for the terms “polygraph bias,” “Sheila
Reed,” and “Gordon Barland,” but does not indicate whether it conducted any searches regarding
DACA or NCCA. Hardy Decl. ¶ 62. Similarly, no term searches for DACA or NCCA appear to
have been performed on the FBI intranet. See id. ¶ 72. Hardy states that the Polygraph Unit was
“asked to search several times for records related to polygraph research, including . . . research and
records pertaining to [DACA] and that “the few employees in the unit conducted searches of
hardcopy and electronic records for polygraph research materials[.]” Id. ¶ 64. While Hardy’s
affidavit is otherwise comprehensive, it does not indicate whether the agency searched specifically
for records regarding DACA. Nor does it reveal whether employees searched all hardcopy records
or only a selection, or what terms they used to search electronic records. As a result, the
government has not adequately described the process by which it searched for records regarding
DACA, including “the search terms and the type of search performed[.]” Ogelsby, 920 F.2d at 68.
Additionally, the government’s description of its search indicates it may have misconstrued
Sack’s request. While she asked for records pertaining to DACA broadly, the FBI appears only to
have searched for records pertaining to polygraph bias, which would have excluded records
7
regarding DACA that were unrelated to bias research. This contravenes the government’s “‘duty to
construe a FOIA request liberally.’” People for the Ethical Treatment of Animals v. Dep’t of
Health and Human Servs., 745 F.3d 535, 540 (D.C. Cir. 2014) (quoting Nat’l Magazine v. U.S.
Customs Serv., 71 F.3d 885, 890 (D.C. Cir. 1995)).
In sum, the Hardy declaration does not describe any searches specific to Sack’s DACA
request, or outline the FBI’s general search process in such a way that might lead to a reasonable
inference that the Bureau responded specifically to this request. Accordingly, the Court will deny
the government’s motion for summary judgment as to Count 3 and require the government to
submit further affidavits or conduct additional searches to respond to Sack’s request for records
pertaining to DACA/NCCA.
B. Withholding of ATF Order 2123.1 and Email to OMB
As noted above, Sack challenges the ATF’s withholding of portions of ATF Order 2123.1,
which describes its “Pre-Employment Polygraph Special Agent Screening Program,” and a “portion
of an int[er]-agency email from ATF to OPM . . . which quotes a provision in ATF Order 2123.1
and offers a clarifying interpretation of that provision.” Boucher Decl. ¶ 10. ATF has withheld
Order 2123.1 under Exemptions 2 and 7(E). It has withheld the email to OPM under Exemptions 2,
5, and 7(E). The Court will review each justification for these withholdings.
i. Exemption 2
Exemption 2 protects from disclosure documents that are “related solely to the internal
personnel rules and practices of an agency,” 5 U.S.C. § 552(b), and are not the subject of “genuine
and significant public interest.” Dep’t of the Air Force v. Rose, 425 U.S. 352, 369 (1976). The
purpose of the exemption “is simply to relieve agencies of the burden of assembling and
maintaining [such information] for public inspection.” Id. The Supreme Court has recently held
that “only records relating to issues of employee relations and human resources” are covered by the
8
exemption and emphasized that the “practice of ‘construing FOIA exemptions narrowly’ stands on
especially firm footing with respect to Exemption 2.” Milner v. Dep’t of the Navy, 131 S. Ct. 1259,
1265–66, 1271 (2011) (internal citation omitted) (quoting DOJ v. Landano, 508 U.S. 165, 181
(1993)).
Sack acknowledges that Order 2123.1 and the email to OMB relate to the personnel
functions of ATF, but argues that ATF’s use of polygraphs on applicants for special agent positions
is the subject of non-trivial and genuine public interest. Opp. to Mot. for Summ. J. at 7–8. The
government responds that information for which there is a “genuine and significant public interest”
is a narrower category than simply non-trivial information. Reply in Supp. of Mot. for Summ. J. at
9. 1 But the DOJ’s proposed interpretation of the “public interest” standard conflicts with opinions
of this Circuit, which have explained that “genuine public interest” means non-trivial information.
Founding Church of Scientology of Washington, D.C., Inc. v. Smith, 721 F.2d 828, 831 n.4 (D.C.
Cir. 1983) (only matters “involving trivial administrative details” protected by Exemption 2);
Crooker v. ATF, 670 F.2d 1051, 1069 (D.C. Cir. 1981) (en banc), abrogated in part on other
grounds, (exemption limited to “trivial administrative matters of no genuine public interest.”). 2
1
The DOJ appears to argue in part that there cannot be genuine public interest in information that
relates only to the internal functions of an agency, see Reply in Supp. of Mot. for Summ. J. at 8–9,
but this argument surely is wrong. Rose established that Exemption 2 requires a two-part inquiry:
whether the document is related solely to internal personnel rules and practices and is subject to no
genuine public interest. 425 U.S. at 369. Under the government’s proposed test, however, the
second prong would be subsumed by the first and rendered meaningless.
2
Crooker interpreted Exemption 2 to apply to both personnel records of no genuine public
interest—called “low 2”—and documents that “significantly risk[ ] circumvention of agency
regulations or statutes”—called “high 2.” Id. The Supreme Court in Milner recently held that
Exemption 2 does not protect so-called “high 2” records and that “Low 2 is all of 2[.]” 131 S. Ct. at
1265. As ATF points out, this holding has not altered earlier caselaw interpreting the “genuine
public interest” test, which remains in place. See, e.g., Institute for Policy Studies v. CIA, 885 F.
Supp. 2d 120, 146 (D.D.C. 2012) (applying “public interest” standard post-Milner); Brown v. FBI,
873 F. Supp. 2d 388, 400 (D.D.C. 2012) (same).
9
Thus, the relevant inquiry is whether the policies and procedures the DOJ uses to screen applicants
for law enforcement positions is trivial personnel information.
The DOJ posits that “while the public may have an interest in knowing that applicants for a
law enforcement position with ATF are subject to pre-screening polygraphs . . . the public does not
have an interest in the internal practices and procedures by which that screening is conducted at
ATF.” Id. But this ipse dixit contravenes the requirement that the Court construe Exemption 2
narrowly. How government agencies use polygraphs to screen employees is not a trivial matter like
the “‘use of parking facilities or regulations of lunch hours, [or] statements of policy as to sick
leave,’” which the Supreme Court has cited as examples of documents that can be withheld under
Exemption 2. Milner 131 S. Ct. at 1262 (quoting Rose, 425 U.S. at 363). The public may well
want to know, as Sack does, how agencies employ somewhat-controversial polygraph techniques to
screen job applicants. Thus, construing Exemption 2 narrowly, it cannot extend to ATF’s
polygraph program because this is not trivial personnel information.
ii. Exemption 5
FOIA Exemption 5 shields from disclosure “inter-agency or intra-agency memoranda or
letters which would not be available by law to a party other than an agency in litigation with the
agency.” 5 U.S.C. § 522(b)(5). Exemption 5 encompasses the deliberative process privilege, which
protects materials that are “‘both predecisional and a part of the deliberative process.’” Nat’l Inst.
of Military Justice v. DOD., 512 F.3d 677, 680 n.4 (D.C. Cir. 2008) (quoting Formaldehyde Inst. v.
U.S. Dep’t of Health and Human Servs., 889 F.2d 1118, 1121 (D.C. Cir. 1989)). “The deliberative
process privilege rests on the obvious realization that officials will not communicate candidly
among themselves if each remark is a potential item of discovery and front page news” and, thus,
“its object is to enhance ‘the quality of agency decisions,’ by protecting open and frank discussion
among those who make them within the Government.” Dep’t of Interior v. Klamath Water Users
10
Protective Ass’n, 532 U.S. 1, 8–9 (2001). The privilege thus protects “‘documents reflecting
advisory opinions, recommendations and deliberations comprising part of a process by which
governmental decisions and polices are formulated.’” Id. at 8 (quoting NLRB v. Sears, Roebuck &
Co., 421 U.S. 132, 150 (1975)). The privilege does not protect any “opinions and interpretations
which embody the agency’s effective law and policy[.]” Elec. Frontier Found. v. DOJ, 739 F.3d 1,
7 (D.C. Cir. 2014) (citing NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 153 (1975)). An agency’s
recommendation may remain “pre-decisional” even though it has been communicated to another
agency. Trea Senior Citizens League v. Dep’t of State, 10-1423, 2013 WL 5825251, at *6 (D.D.C.
Oct. 30, 2013) (citing among others Renegotiation Bd. v. Grumman Aircraft Eng’g Corp., 421 U.S.
168, 188 (1975)).
ATF redacted a portion of the email to OMB quoting and interpreting Order 2123.1.
Boucher Decl. ¶ 18. It is well established that an agency’s regulations and settled regulatory
interpretations are not covered by the deliberative process privilege. E.g., Elec. Frontier Found.,
739 F.3d at 7 (“agencies must disclose their working law,” which cannot be “hidden behind a veil
of privilege because it is not designated as formal, binding, or final.” (internal citations and
quotation marks omitted)). At face value, then, the redacted portion of the email cannot be withheld
under Exemption 5 because it provides ATF’s interpretation of its regulation, and nothing indicates
that this interpretation was in any way novel.
AFT explains further, however, that it sent OMB the information contained in the email to
help it decide whether to re-approve Order 2123.1, and argues that these deliberations on future
regulation make the document deliberative and pre-decisional. Boucher Decl. ¶¶ 22–23. This
added wrinkle does not justify the withholding. In Public Citizen v. OMB, 598 F.3d 865 (D.C. Cir.
2009), OMB sought to withhold a document containing its interpretations of statutes and current
practices under the deliberative process privilege because the document was prepared to help
11
generate recommendations for the Executive Office of the President. Id. at 867–68. The D.C.
Circuit held, however, that a document explaining existing policy “cannot be considered
deliberative” simply because it was created to help make decisions about future policies. Id. at 876.
Likewise, AFT does not indicate that the inter-agency email provides recommendations on how to
modify the order or whether to re-approve it. Instead, the email quoted an existing order and
“provide[d] a clarifying interpretation of that provision,” Boucher Decl. ¶ 18, and therefore does not
“reflect the give and take of the deliberative process[.] See Public Citizen, 598 F.3d at 876.
Accordingly, ATF cannot redact portions of the email under Exemption 5.
iii. Exemption 7(E)
Exemption 7(E) applies to information compiled for law enforcement purposes to the extent
release of such records “would disclose techniques and procedures for law enforcement
investigations or prosecutions, or would disclose guidelines for law enforcement investigations or
prosecutions if such disclosure could reasonably be expected to risk circumvention of the law.” 5
U.S.C. § 552(b)(7)(E). To properly withhold records under Exemption 7(E), the agency must
“establish a rational nexus between the withheld material and a legitimate law enforcement
purpose[.]” Campbell v. DOJ, 164 F.3d 20, 32 (D.C. Cir. 1998). “[T]he ‘ordinary understanding of
law enforcement includes . . . proactive steps designed to prevent criminal activity and to maintain
security.’” Pub. Employees for Envtl. Responsibility v. U.S. Section, Int’l Boundary & Water
Comm’n, U.S.-Mexico, 740 F.3d 195, 203 (D.C. Cir. 2014) (quoting Milner, 131 S. Ct. at 1272(Alito, J., concurring)). Where an agency “specializes in law enforcement, its decision to invoke
exemption 7 is entitled to deference.” Id. (citing Pratt v. Webster, 673 F.2d 408, 419 (D.C. Cir.
1982)). The required demonstration that disclosure would risk circumvention of the law is “a
relatively low bar[.]” Pub. Employees for Envtl. Responsibility, 740 F.3d at 205.
12
The D.C. Circuit has already established that security clearance procedures used to evaluate
candidates for positions in a law enforcement agency may be withheld under Exemption 7(E).
Morley v. CIA, 508 F.3d 1108, 1128–29 (D.C. Cir. 2007) (citing Mittleman v. OPM, 76 F.3d 1240,
1243 (D.C. Cir. 1996)). Indeed, in Morley, the CIA was permitted to withhold information simply
on the basis that it could “provide insight” into the security clearance process. Id. at 1129. Under a
similarly deferential standard, this Court likewise has held that records regarding polygraphing job
applicants may be withheld under Exemption 1 as classified in the interests of national defense or
foreign policy. Sack v. CIA, 12-537, 2014 WL 2769103, at *3 (D.D.C. June 17, 2014); Blazy v.
Tenet, 979 F. Supp. 10, 23 (D.D.C. 1997). Consistent with these cases, the Court will accord ATF a
high level of deference in reviewing its determination that exposing the withheld procedures would
risk circumvention of the law.
ATF has explained that releasing portions of Order 2123.1 and the email to OMB “would
allow and/or assist applicants to manipulate or circumvent ATF’s polygraph procedures by giving
applicants insight and information regarding how test results are evaluated by the agency and the
consequences of various test results or outcomes[.]” Bucher Decl. ¶ 45. Facially, this explanation
meets the highly deferential standard the Court must apply under 7(E). While this standard is
highly deferential, it is not unlimited. Sack points out that ATF appears to be applying this
exemption in an extremely broad manner, including applying it to information as apparently benign
as the fact that the Chief Security Officer in ATF is tasked with reviewing the decision to deny a
security clearance because of an inconclusive polygraph examination. Opp. to Mot. for Summ. J.
Ex. C. Given that the Court has determined that ATF may not withhold Order 2123.1 and the OMB
email under Exemptions 2 or 5, it will defer ruling on ATF’s withholdings under Exemption 7(E) in
order to provide ATF an opportunity to determine whether, in light of this opinion, any portions of
the withheld material are reasonably segregable from properly withheld material. In doing so, the
13
agency should keep in mind that there must be “a rational nexus between the withheld material and
a legitimate law enforcement purpose[.]” Campbell v. DOJ, 164 F.3d at 32.
IV. Conclusion
For the reasons stated above, the government’s motion for summary judgment is denied
with respect to Sack’s request to the FBI for records regarding DACA/NCCA and ATF’s
withholding of ATF Order 2123.1 and the September 2010 email under Exemptions 2 and 5. The
government’s motion is granted in all other respects. The Court will issue an order consistent with
this memorandum opinion.
CHRISTOPHER R. COOPER
United States District Judge
Date: August 21, 2014
14