Palmieri v. United States of America , 194 F. Supp. 3d 12 ( 2016 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MATTHEW RICHARD PALMIERI,
Plaintiff,
v. Civil Action No. 12-1403 (JDB)
UNITED STATES OF AMERICA, et al.,
Defendants.
MEMORANDUM OPINION
Plaintiff Matthew Richard Palmieri, a former contractor for the United States, had his
security clearance revoked following a government investigation into his activities abroad. In
response, Palmieri brought a 30-count civil action against various government agencies and
officials, alleging constitutional and statutory violations arising out of the investigation, the
subsequent administrative hearing, the loss of his security clearance, and the government’s
responses to his document requests. Most of those counts were dismissed in a prior decision of
this Court. See Palmieri v. United States, 72 F. Supp. 3d 191 (D.D.C. 2014). Others have been
dismissed by stipulation of the parties. Now the government has moved for summary judgment
on Palmieri’s five remaining counts, which were brought under the Freedom of Information and
Privacy Acts and seek records related to the government’s investigation of Palmieri. The Court
will grant the government’s motion in part.
BACKGROUND
Palmieri’s FOIA and Privacy Act requests are based upon his account of the government’s
investigation of him. According to Palmieri, the investigation began in June 2009, when Deborah
Stickney of the Office of Naval Intelligence (ONI) “created an agency record” regarding certain
1
of his activities. See Am. Compl. [ECF No. 14] at 14–15. After sharing the records with her
Special Security Officer and her supervisor, Stickney allegedly obtained permission from the
Director of ONI to transfer the records to the Naval Criminal Investigative Service (NCIS) at a
later in-person meeting. See Pl.’s Opp’n [ECF No. 66] at 3–4. From there, Palmieri contends, the
investigation began in earnest. NCIS obtained Palmieri’s emails, phone records, and hard drives;
surveilled him in the streets of Manama, Bahrain; searched his office; “interrogated [him] inside
the NCIS Middle East Field Office in Bahrain”; and subjected him to a polygraph test. See Am.
Compl. at 17–26. It also allegedly enlisted the help of other agencies. After ONI had provided
NCIS with a Facebook photograph of Palmieri and some friends at a restaurant, NCIS asked “U.S.
Embassy staff,” perhaps including employees of the State Department (DOS), to help identify
Palmieri’s associates. See id. at 15–16. NCIS also requested and obtained Office of Personnel
Management (OPM) records regarding Palmieri’s security clearance. Id. at 17–18. In July 2011,
after a two-year investigation, NCIS referred Palmieri’s case to the Defense Security Service
(DSS) for appropriate action. DSS decided to suspend Palmieri’s clearance. See id. at 28–31.
Preparing a challenge to that suspension, Palmieri began sending FOIA and Privacy Act
requests to the various agencies “involved with [his] situation,” id. at 31–32, including the five
agencies discussed above. Much has transpired since then. Palmieri filed suit in this Court, but
his case was stayed pending completion of administrative proceedings that ultimately upheld the
suspension of his clearance. See Am. Compl. at 33–37. Once the stay had been lifted, Palmieri
filed a 30-count amended complaint against various agencies and government officials. Many
counts alleged constitutional and statutory violations arising out of the government’s investigation
and suspension decision. Others focused on the agency defendants’ alleged denial of records under
FOIA and the Privacy Act. Twenty-five of the counts in Palmieri’s amended complaint have now
2
been dismissed—most on the government’s motion, see Palmieri v. United States, 72 F. Supp. 3d
191 (D.D.C. 2014), but some by Palmieri’s consent. 1 The five remaining counts allege violations
of FOIA and the Privacy Act by defendants ONI, DOS, DSS, NCIS, and OPM. 2 The government
has now moved for summary judgment on all remaining counts.
LEGAL STANDARD
“FOIA cases typically and appropriately are decided on motions for summary judgment.”
Defs. of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009). The Court grants
summary judgment if the movant shows that there is no genuine dispute as to any material fact and
that it is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). In a FOIA action, the
agency “is entitled to summary judgment if no material facts are in dispute and if it demonstrates
‘that each document that falls within the class requested either has been produced . . . or is wholly
exempt from [FOIA’s] inspection requirements.’” Students Against Genocide v. Dep’t of State,
257 F.3d 828, 833 (D.C. Cir. 2001) (quoting Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978)).
Summary judgment may be based solely on information provided in an agency’s supporting
affidavits or declarations if they describe “the documents and the justifications for nondisclosure
with reasonably specific detail, demonstrate that the information withheld logically falls within the
claimed exemption, and are not controverted by either contrary evidence in the record [or] by
evidence of agency bad faith.” Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir.
1981).
1
Palmieri has released his FOIA and Privacy Act claims against the Financial Crimes Enforcement Network
(FinCEN) and the CIA. See Joint Stip. of Partial Dismissal [ECF No. 38]. While briefing the pending motion, he also
released his FOIA and Privacy Act claims against the Defense Manpower Data Center (DMDC). See Pl.’s Opp’n
[ECF No. 66] at 8.
2
Palmieri had previously alleged that the agency defendants’ document denials also violated the
Administrative Procedure Act. He has now abandoned that theory. See Joint Stip. of Partial Dismissal.
3
“The adequacy of an agency’s search is measured by a standard of reasonableness and is
dependent upon the circumstances of the case.” Weisberg v. U.S. Dep’t of Justice, 705 F.2d 1344,
1351 (D.C. Cir. 1983) (internal quotation marks and citation omitted). An agency must
“demonstrate beyond material doubt that its search was reasonably calculated to uncover all
relevant documents.” Valencia–Lucena v. U.S. Coast Guard, 180 F.3d 321, 325 (D.C. Cir. 1999)
(internal quotation marks omitted). “A reasonably detailed affidavit, setting forth the search terms
and the type of search performed[,] is necessary to afford a FOIA requester an opportunity to
challenge the adequacy of the search and to allow the district court to determine if the search was
adequate in order to grant summary judgment.” DeBrew v. Atwood, 792 F.3d 118, 122 (D.C. Cir.
2015) (internal quotation marks and alteration omitted).
“[T]he adequacy of a FOIA search is generally determined not by the fruits of the search,
but by the appropriateness of the methods used to carry” it out. Iturralde v. Comptroller of
Currency, 315 F.3d 311, 315 (D.C. Cir. 2003). A well-designed search may be adequate, therefore,
even if it fails to locate every potentially responsive document. Stated another way, the “failure
of an agency to turn up one specific document in its search does not alone render a search
inadequate.” Id.; see Ancient Coin Collectors Guild v. U.S. Dep’t of State, 641 F.3d 504, 514
(D.C. Cir. 2011) (explaining that a search is not deficient merely because a “reasonable observer
would find [the lack of] result[s] unexpected”); Espino v. U.S. Dep’t of Justice, 869 F. Supp. 2d
25, 28 (D.D.C. 2012) (“[A] search is not inadequate simply because it failed to turn up a document
that [plaintiff] believes must exist, or even a document he knows to exist.”).
The disclosure provision of the Privacy Act provides an independent basis for Palmieri’s
record requests. “Unlike FOIA, the Privacy Act’s primary purpose is not disclosure.” Blazy v.
Tenet, 194 F.3d 90, 96 (D.C. Cir. 1999). Rather, the Privacy Act aims to “safeguard[] the public
4
from unwarranted collection, maintenance, use and dissemination of personal information
contained in agency records. It does so by allowing an individual to participate in ensuring that
his records are accurate and properly used, and by imposing responsibilities on federal agencies to
maintain their records accurately.” Bartel v. FAA, 725 F.2d 1403, 1407 (D.C. Cir. 1984) (footnote
omitted). To facilitate an individual’s participation in the recordkeeping process, the Act includes
a disclosure requirement. Agencies maintaining “systems of records” must allow an individual to
access those records pertaining to him upon his request. Henke v. U.S. Dep’t of Commerce, 83
F.3d 1453, 1456 (D.C. Cir. 1996) (citing 5 U.S.C. § 552a(d)(1)); see also 5 U.S.C. § 552a(a)(5)
(defining “system of records”).
But like FOIA, the Privacy Act allows agencies to exempt certain records from disclosure.
See 5 U.S.C. § 552a(j),(k). “[W]hen a request for documents is [properly] made under both FOIA
and the Privacy Act, the responding agency must demonstrate that the documents fall within some
exemption under each Act.” Boyd v. Exec. Office for U.S. Attorneys, 87 F. Supp. 3d 58, 86–87
(D.D.C. 2015) (internal quotation marks omitted). An agency may not rely on a FOIA exemption
to withhold from an individual any record which is otherwise accessible to him under the Privacy
Act. 5 U.S.C. § 552a(t)(1)).
DISCUSSION
The issues currently before the Court are narrower than the sprawling record in this case
might suggest. In connection with the government’s prior motion to dismiss, most of the agency
defendants provided declarations describing their searches and the bases for their claimed FOIA
and Privacy Act exemptions. Palmieri was instructed to draw on these declarations and identify
“exactly” any remaining issues. See Palmieri, 72 F. Supp. 3d at 214–15. Barely engaging with
those agency declarations, Palmieri’s “more definite statement” is less exact than the Court had
5
hoped it would be. Nonetheless, his filing does mount challenges to the searches conducted by
ONI, DOS, DSS, and OPM, and to the exemption claims by OPM and NCIS. Largely unsupported
by citations to evidence in the record or to relevant case law, most of those challenges are
unsuccessful. Summary judgment will be granted as to the searches by DOS, DSS, and OPM and
as to the exemption claims by NCIS. But as to ONI’s search and OPM’s exemption claims,
Palmieri has said enough to survive summary judgment for the time being.
A. Office of Naval Intelligence (ONI)
Palmieri’s request sought from ONI “all records maintained about [him.]” Am. Compl. at
122. Specifically, Palmieri sought any records indexed to his name, those concerning the overseas
surveillance against him, any records exchanged between ONI and NCIS, and a “record created
by the ONI employee Deborah Marie Stickney which related to my First Amendment protected
activities”—presumably the Facebook photo of Palmieri and his associates. Id.; see also Pl.’s
More Definite Stmt. [ECF No. 54] at 1–2 (requesting “all records of Stickney’s summer 2009
‘post-travel debriefing’” with her Special Security Officer). ONI conducted a search that returned
no responsive documents. See Watson Decl. [ECF No. 27-14]. Palmieri thinks this result highly
implausible. Documents recovered from other agencies, Palmieri contends, conclusively show
that Stickney created records regarding his activities, shared them with her Special Security Officer
and other management, and then turned them over to the NCIS at an in-person meeting. See Pl.’s
Opp’n at 3–4. In Palmieri’s view, any search that failed to locate these responsive documents must
be viewed with skepticism.
ONI is correct that a search is not deficient merely because a “reasonable observer would
find [the lack of] result[s] unexpected.” Ancient Coin Collectors Guild, 641 F.3d at 514. But here,
there are numerous additional reasons to doubt the thoroughness of ONI’s search. According to
6
its declaration, ONI searched the two components—the Special Security Office and Maritime
Counter Terrorism Branch 3—most likely to contain responsive documents. See Watson Decl.
¶ 10. But that is where the explanation ends. ONI’s declaration fails to describe those components,
their functions, the records they normally maintain, why they were selected for the search, or why
others were excluded. Without such information, the Court cannot be sure that ONI’s search
methodology was a reasonable one. ONI similarly fails to “set[] forth the search terms” it
employed. See DeBrew, 792 F.3d at 122. This pervasive lack of detail is especially troubling
when considered in the context of ONI’s full declaration, which conveys the agency’s tendency to
construe Palmieri’s very broad record requests as narrowly as possible. See Watson Decl. ¶ 9 (no
search conducted as to two subsets of records specified in Palmieri’s initial request); id. ¶ 13 (no
search conducted in response to Palmieri’s amended record request); id. ¶ 15 (no search conducted
in response to Palmieri’s appeal). Considering these shortcomings collectively, the Court thinks
ONI has yet to “demonstrate beyond material doubt” that its search was reasonably calculated to
locate those documents responsive to Palmieri’s request. Valencia–Lucena, 180 F.3d at 325. As
to ONI, therefore, the government’s motion for summary judgment must be denied. In the coming
months, ONI must conduct a new search, reasonably calculated to locate “all” records maintained
about Palmieri, and provide a new declaration that clearly explains its methodology.
B. Department of State (DOS)
DOS, on the other hand, is entitled to summary judgment. Palmieri requested from DOS
all records pertaining to him, including those indexed to his name, those related to overseas
3
ONI’s declaration is not clear as to exactly which components were searched. The Court’s best reading of
the declaration is that the agency’s search extended to the Special Security Office and Maritime Counter Terrorism
Branch. But the declaration also mentions, without much explanation, the Nimitz Operational Intelligence Center.
Being almost completely in the dark regarding what these various components do, the Court finds it difficult to resolve
these ambiguities.
7
surveillance against him, and those passed between DOS and NCIS. See Ex. 1 to Walter Decl.
[ECF No. 27-16]. DOS’s search located six responsive documents concerning Palmieri’s passport.
Two were released to Palmieri in full; four were released in part. Walter Decl. [ECF No. 27-15]
¶ 42. Palmieri does not appear to challenge these redactions. He is once again dismayed, however,
that DOS’s search did not turn up certain records, which he thinks for various reasons must exist.
Unlike ONI, DOS has provided a declaration that describes in great detail a search
reasonably calculated to locate documents responsive to Palmieri’s request. See Walter Decl.
¶¶ 13–26 (describing the locations searched); id. ¶¶ 17, 19, 22, 24–25 (describing the various
search terms employed). Specifically, that declaration details the agency’s search of the U.S.
Embassy in Manama, which extended to “paper and electronic records, including e-mail messages
and the Consolidated Consular Database.” Id. ¶ 24. Palmieri thinks responsive records were likely
maintained by Lance Bailey, a Regional Security Officer at the U.S. Embassy in Manama. Pl.’s
More Definite Stmt. at 6. But the Regional Security Officers at the Manama embassy searched
“their paper files, e-mails, and shared drives” to no avail. Walter Decl. ¶ 19. And, as represented
in the government’s reply, Lance Bailey was personally involved in those efforts. Gov’t’s Reply
[ECF No. 67] at 7–8. DOS’s declaration demonstrates that its search was adequate.
Palmieri’s only argument to the contrary does not undermine that conclusion. Palmieri
contends that an adequate search would necessarily have uncovered Facebook photos that NCIS
shared with “U.S. Embassy Personnel” and some record of the surveillance he endured in Bahrain.
See Pl.’s More Definite Stmt. at 5–6. But Palmieri’s argument is speculative, based largely on his
assumptions that “U.S. Embassy Personnel” included DOS personnel and that DOS would have
been involved in his surveillance. His argument is also unsupported by citation to the record.
Without more reliable evidence, this Court has no basis on which to conclude that records are
8
indeed “missing” from DOS’s production. And in any event, missing records alone would not
suffice to fatally undermine a search that the agency has shown to be adequate. See Ancient Coin
Collectors Guild, 641 F.3d at 514. Palmieri’s speculative and unsupported “missing” records
argument thus fails to raise a material doubt about the adequacy of the search described in DOS’s
detailed declaration. The government’s motion for summary judgment will therefore be granted
as to DOS.
C. Defense Security Service (DSS)
DSS is entitled to summary judgment as well. Through multiple requests, Palmieri sought
from DSS all records pertaining to him. He believed those records should include his full
investigative file, his full Joint Personnel Adjudication System (JPAS) files, his full adjudicative
history, the full text and details of any incident reports filed against him, records relating to his
overseas surveillance, and a “copy of a classified log file #11105-11 which was created by DSS.”
See Am. Compl. at 130–31; see also Ex. C to Blake Decl. [ECF No. 31-3]; Ex. F to Blake Decl.
[ECF No. 27-8]. DSS responded with several document productions totaling 54 pages, some of
which have been partially redacted. See Blake Decl. [ECF No. 27-2] ¶ 5. Palmieri does not appear
to challenge DSS’s exemption claims. 4 See Pl.’s Opp’n at 6–7. Unsatisfied with the search results,
however, Palmieri reiterates several of his specific record requests in his more definite statement.
Specifically, he claims that DSS has denied him a January 2011 incident report filed under the
“Personal Conduct” criteria, the “classified log file,” a Reimbursable Suitability Investigation
4
Palmieri’s more definite statement does include a brief quotation of Privacy Act exemption (k)(2). See
Pl.’s More Definite Stmt. at 3–4. Read in context, that passing quotation cannot be easily construed as a challenge to
DSS’s redactions. But to the extent it was intended as such a challenge, Palmieri seems to have dropped the issue in
his subsequent briefing. The government’s motion says that Palmieri “does not appear to challenge any of the
exemptions claimed.” Gov’t’s Mot. for Summ. J. [ECF No. 64] at 7. Palmieri’s opposition does not suggest otherwise.
See Pl.’s Opp’n at 6–7.
9
(RSI) performed by OPM, and “the identities of all informants” who provided information about
him. See Pl.’s More Definite Stmt. 3–4.
DSS’s declaration describes in detail a search reasonably calculated to locate responsive
documents. See Blake Decl. ¶¶ 18–21 (describing the locations searched); id. ¶¶ 19–21 (describing
the search terms used to access Palmieri’s information). DSS searched several databases
containing information, like incident reports, integral to security clearance adjudications. See id.
¶¶ 9, 19 (search of JPAS yielded “any and all” incident reports entered as of March 2011); id. ¶ 20
(search of the Case Adjudicative Tracking System, which, along with databases like JPAS,
contains “most material required for the proper adjudication of [a] case”); id. ¶ 21 (search of the
Counterintelligence Issue Database, which “contains data on persons of possible
Counterintelligence interest” and, in the case of Palmieri, included an adverse information report
concerning “suspicious contact with a foreign person”).
Palmieri’s opposition does not allege any specific deficiencies in DSS’s search
methodology. Instead, Palmieri again presses his “missing” records argument—this time pointing
to the alleged absence of the RSI and two “incident reports.” See Pl.’s Opp’n at 6–7. But that
argument fails here too. The RSI is not really “missing” at all: DSS’s declaration explains that
DSS has limited access to OPM materials like the RSI. 5 See Blake Decl. ¶ 12. The declaration
also describes an adequate search for relevant incident reports, as they are recorded in DSS’s
systems. That search appears to have located records in JPAS of the incident reports that Palmieri
seeks, see Ex. B. to Blake Decl. [ECF No. 31-2] at 14 (JPAS record logging incident reports filed
under the “Foreign Influence” and “Personal Conduct” criteria), and DSS contends that it has
provided Palmieri with every record related to those reports available through the system, see
5
And OPM, it seems, has located and produced it. See Simek Decl. [ECF No. 65-2] ¶ 18.
10
Blake Decl. ¶ 19; see also id. ¶ 14. Palmieri again purports to have records in his possession
proving that other responsive records are missing. But once again he has failed to prove that
contention with citations to the record. And even accepting Palmieri’s premise—that some
responsive records remain “missing”—his conclusion—that DSS’s search is inadequate—does not
necessarily follow. See Ancient Coin Collectors Guild, 641 F.3d at 514. Palmieri’s “missing”
record argument thus fails to give rise to a material issue of fact regarding the adequacy of the DSS
search. The government’s motion for summary judgment will be granted as to DSS.
D. Naval Criminal Investigative Service (NCIS)
Palmieri’s request of NCIS sought all records pertaining to him, including those records
indexed to his name, those held by the Department of the Navy Central Adjudication Facility, all
those in his “full investigative case file,” those relating to the “surveillance” against him in
Bahrain, the full text of all “incident reports” filed against him by NCIS, and those records related
to NCIS investigations of its own agents’ misconduct. See Ex. 1 to Cozza Decl. [ECF No. 27-18].
In response, NCIS located and produced Palmieri’s investigative file, totaling 778 pages, many of
which were redacted in whole or in part. See Cozza Decl. [ECF No. 27-17] ¶¶ 38, 40. NCIS
claimed not to possess additional responsive records relating to Palmieri, id. ¶ 38, and Palmieri
does not appear to take issue with NCIS’s search, see Pl.’s More Definite Stmt. at 2–3; Pl.’s Opp’n
at 5–6.
Palmieri’s more definite statement does take issue with NCIS’s redactions—albeit in the
most general possible terms. See Pl.’s More Definite Stmt. at 2–3. There he requested that NCIS
produce a Vaughn index “detailing [its] rationale for denying each specific piece of redacted
information in the records.” Id. at 3. He also asked this Court to “independently review both the
original unredacted records and the Vaughn Index in order to determine if [NCIS’s] refusal to
11
release the records is lawful.” Id. at 4. NCIS subsequently submitted a Vaughn index as an
attachment to its motion for summary judgment. See NCIS Vaughn Index [ECF No. 65-1]. Armed
now with hundreds of pages of records, a NCIS declaration describing its search and redactions,
and a Vaughn index addressing each redaction individually, Palmieri’s opposition makes only one
legal challenge to NCIS’s handling of his request: that “NCIS is inappropriately applying FOIA
exemptions to withhold records releasable to [him] pursuant to the Privacy Act.” Pl.’s Opp’n at
5.
Palmieri’s investigative file may indeed fall within the general scope of the Privacy Act,
but NCIS has properly exempted it from that Act’s disclosure requirements. Under Privacy Act
exemption (j)(2), an agency that “performs as its principal function any activity pertaining to the
enforcement of criminal laws” may exempt an entire system of records from the Act’s disclosure
requirements if the system consists of “information compiled for the purpose of a criminal
investigation” and “associated with an identifiable individual.” 5 U.S.C. § 552a(j)(2)(B). A Navy
regulation provides that parts of the “NCIS Investigative Files System” may be exempt from
disclosure “if the information is compiled and maintained by a component of the agency which
performs as its principal function any activity pertaining to the enforcement of criminal laws.” 32
C.F.R. § 701.128(m).
The records at issue here were compiled by NCIS, “the criminal law enforcement
investigative branch of the United States Navy,” in connection with its “criminal investigation” of
Palmieri. Cozza Decl. ¶¶ 2, 48. Consequently, Palmieri’s investigation file is not subject to the
Privacy Act’s disclosure requirements. Cf. Clemmons v. U.S. Army Crime Records Ctr., 2007
WL 1020827, at *3 (D.D.C. Mar. 30, 2007) (system of records maintained by the Army Criminal
Investigation Division is exempt from Privacy Act); Butler v. Dep’t of Air Force, 888 F. Supp.
12174, 179 (D.D.C. 1995) (systems of records maintained by the Air Force Office of Special
Investigations are exempt from Privacy Act). FOIA provides Palmieri’s only avenue to his
investigative file, so NCIS may justify redactions to that file using FOIA exemptions. Palmieri’s
only argument to the contrary—that NCIS has improperly applied Privacy Act exemption (k)(2)—
gets him nowhere. 6 Unfortunately for Palmieri, NCIS relies specifically on Privacy Act exemption
(j)(2), rather than on (k)(2), to exempt the Investigative Files System from disclosure under the
Privacy Act. See 32 C.F.R. § 701.128(m)(3). Palmieri’s exemption (k)(2) argument is thus
irrelevant.
Palmieri’s filings contain no further challenges to NCIS’s redactions. The request for a
Vaughn index in his more definite statement was effectively mooted when the government
produced one. Since receiving that index, Palmieri has said nothing regarding the propriety of
NCIS’s individual FOIA exemptions. See Pl.’s Opp’n at 5–6. Palmieri would understandably
prefer that the Court develop exemption challenges for him, after an in camera review of NCIS’s
forty-six page Vaughn index and the 700-plus pages of records. See Pl.’s More Definite Stmt. at
3. But this Court has no obligation to take on that project. See Schneider v. Kissinger, 412 F.3d
190, 200 n.1 (D.C. Cir. 2005) (Litigants must do more than merely “mention a possible argument
in the most skeletal way, leaving the court to do counsel’s work . . . [A] litigant has an obligation
to spell out its arguments squarely and distinctly, or else forever hold its peace.”); Gov’t
Accountability Project v. U.S. Dep’t of Justice, 852 F. Supp. 2d 14, 27 n.5 (D.D.C. 2012)
(“Although the Court has broad discretion to conduct in camera review of withheld documents, it
is not required to do so.”). Palmieri was instructed to specify “exactly” those exemption claims
6
Exemption (k)(2) allows agencies to exempt from disclosure systems of records containing “investigatory
material compiled for law enforcement purposes, other than material within the scope of subsection (j)(2).” 5 U.S.C.
§ 552a(k)(2).
13
that he wished to challenge. Because Palmieri’s opposition has not addressed NCIS’s individua l
exemptions, he has effectively conceded their legality. See Brillhart v. FBI, 869 F. Supp. 2d 12,
15–16 (D.D.C. 2012); Maydak v. U.S. Dep’t of Justice, 254 F. Supp. 2d 23, 41 (D.D.C. 2003).
NCIS too, then, is entitled to summary judgment.
E. Office of Personnel Management (OPM)
Finally, there is OPM. Palmieri has sought from OPM all records pertaining to him. He
believes those records should include his “full investigative file,” including transcripts of all
interviews conducted by OPM, and the “full text and full details of all incident reports,” including
those filed under the “Foreign Influence” and “Personal Conduct” criteria. See Ex. 1 to Simek
Decl. [ECF No. 65-2]. In response, OPM produced “633 pages comprising a complete copy of
Mr. Palmieri’s investigative file.” Simek Decl. ¶ 8. Six pages were partially redacted by OPM
pursuant to various FOIA exemptions. Id. OPM also redacted information from four pages on
behalf of the Financial Crimes Enforcement Network (FinCEN) and from one page on behalf of
the National Security Agency (NSA). See Ex. 7 to Simek Decl. at 1–2.
It is not clear whether Palmieri objects to the adequacy of OPM’s search. His opposition
is entirely silent on the subject. See Pl.’s Opp’n at 7–8. And a FOIA plaintiff like Palmieri may
concede the adequacy of an agency’s search by failing to “specifically challenge” it in his
opposition. See Toensing v. U.S. Dep’t of Justice, 890 F. Supp. 2d 121, 131 (D.D.C. 2012). But
even assuming Palmieri has preserved an objection to the search, he cannot successfully resist
summary judgment on that issue. The analysis unfolds in the now-familiar way. To address
Palmieri’s request for “any and all” records maintained on him, OPM used Palmieri’s personal
identifiers to access the information in its various systems of records—the Personnel Investigation
Records System, the Personnel Investigation Processing System, and the Central Verification
14
System. See Simek Decl. ¶¶ 14–15. Rather than develop any specific challenges to OPM’s search
methodology, Palmieri again complains only of “missing” records. See Pl.’s More Definite Stmt.
at 4 (seeking the RSI, incident reports, and interview transcripts). Once again, it appears that some
of Palmieri’s “missing” records are not actually missing: according to OPM, Palmieri has been
provided with “a complete copy of his RSI,” and some records regarding OPM interviews. See
Simek Decl. ¶ 18. And again, Palmieri fails to support his argument with citations to the record.
Finally, then, even if some records are “missing” from OPM’s search results, that alone will not
suffice to raise an issue of material fact regarding the adequacy of OPM’s search. See Ancient
Coin Collectors Guild, 641 F.3d at 514. OPM is thus entitled to summary judgment on the
adequacy of its search.
The Court reaches a different conclusion, however, on the issue of OPM’s redactions. At
this point, only those redactions made on behalf of FinCEN remain at issue. OPM has decided to
abandon its own FOIA exemptions. See Ex. 9 to Simek Decl. at 1 (reasoning that FOIA
exemptions alone could not justify redacting Palmieri’s file, which was subject to the separate
disclosure requirements of the Privacy Act). OPM has also released to Palmieri in full the only
document redacted on behalf of NSA. See Ex. A to Def.’s Reply [ECF No. 67-1]. The government
suggests, somewhat half-heartedly, that OPM’s redactions on behalf of FinCEN are also moot,
now that Palmieri has stipulated to the dismissal of his amended complaint’s claim against FinCEN
as a defendant. See Pl.’s Opp’n at 7; Joint Stip. of Partial Dismissal (releasing “[a]ll denial of
record claims against Defendant FinCEN”).
The Court is not convinced. Through the administrative process, OPM did inform Palmieri
that challenges to its redactions on behalf of FinCEN would have to be appealed directly to
FinCEN. See Ex. 9 to Simek Decl. at 1–2. But the government does not now argue that Palmieri’s
15
claims concerning those redactions are unexhausted. See Gov’t’s Mot. for Summ. J. at 10 n.6
(suggesting only that Palmieri’s challenge to the redactions was abandoned along with his
amended complaint’s claim against FinCEN); Def.’s Reply at 8–9 (making no argument regarding
exhaustion). Palmieri’s briefing makes clear, moreover, that he thinks the redactions remain at
issue despite his stipulation to FinCEN’s dismissal as a defendant. See Pl.’s Opp’n at 7 (arguing
OPM’s redactions on behalf of FinCEN are not “legitimate”). The Court will give Palmieri the
benefit of the doubt regarding the scope of his stipulation. The government has engaged with the
merits of OPM’s exemption claims on behalf of FinCEN; so too will the Court.
However, the Court currently lacks sufficient information to conclude that those redactions
were properly applied. OPM claims that its redactions on behalf of FinCEN are justified under
FOIA exemption 3, which covers matters “specifically exempted from disclosure by statute,” if
that statute “requires that the matters be withheld from the public in such a manner as to leave no
discretion on the issue.” 5 U.S.C. § 552(b)(3). OPM thinks the Bank Secrecy Act exempts from
disclosure the material withheld here. “[R]eport[s] and records of reports” filed under the Bank
Secrecy Act are indeed “exempt from disclosure under [FOIA].” 31 U.S.C. § 5319. But OPM
does not explain the relationship between the exempt BSA reports and the materials redacted in
this case. Its declaration says only that the redactions “concerned a notice required under the Bank
Secrecy Act to be added to any [OPM] investigations containing certain FinCEN information.” 2d
Simek Decl. [ECF No. 67-2] ¶ 4. From one of the declaration’s attachments, the Court can deduce
that one or more of OPM’s redactions conceal “Case Closing Transmittal” comments. See Ex. 2
to 2d Simek Decl.; Simek Decl. ¶ 18. But that label brings the Court no closer to understanding
how the redacted comments relate to the FOIA-exempt reports filed under the BSA. See Boyd v.
Exec. Office for U.S. Attorneys, 87 F. Supp. 3d 58, 90 (D.D.C. 2015); cf. Ortiz v. U.S. Dep’t of
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Justice, 67 F. Supp. 3d 109, 118 (D.D.C. 2014) (concluding that the redacted information was
“derived from reports generated pursuant to the Bank Secrecy Act”). Going forward, the
government must do more to show that exemption 3, based on the Bank Secrecy Act, does indeed
apply to the redacted information.
The same is true for OPM’s claimed Privacy Act exemptions. “[W]hen a request for
documents is [properly] made under both FOIA and the Privacy Act, the responding agency must
demonstrate that the documents fall within some exemption under each Act.” Boyd, 87 F. Supp.
3d at 86–87 (internal quotation marks omitted). OPM has acknowledged that the Privacy Act
applies to the records Palmieri seeks, see Ex. 9 to Simek Decl. at 1, but thinks the records are
exempt from disclosure under Privacy Act exemptions (j)(2) and (k)(2), see 2d Simek Decl. ¶ 4.
In a regulation that the government does not cite, the Treasury has indeed exempted several
systems of FinCEN records from Privacy Act disclosure. See 31 C.F.R. § 1.36. But once again,
the government fails to explain the link between the exempt systems and the information redacted
in this case. Absent some explanation, the Court cannot grant summary judgment for the
government on these claims.
CONCLUSION
For the reasons explained above, the government’s motion for summary judgment will be
granted as to Palmieri’s FOIA and Privacy Act claims against DOS, DSS, and NCIS. As to ONI,
the government’s motion will be denied. And as to OPM, it will be denied in part. The Court will
not, as Palmieri requests, set his remaining FOIA and Privacy Act claims for trial. Instead, the
Court will order ONI to conduct a new, more comprehensive search and submit a new, more
detailed declaration describing it. If ONI’s new search locates responsive documents, and those
documents are withheld or redacted under FOIA or the Privacy Act, ONI’s supplemental
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declaration should also describe the bases for those withholdings or redactions. OPM must also
submit a supplemental declaration providing further justification for the redactions it made on
behalf of FinCEN. Both agencies’ declarations shall be filed by not later than August 19, 2016.
Thereafter, Palmieri and the government should discuss the possibility of resolving this case
without further litigation. But to the extent they are unable to do so, by September 16, 2016, the
parties may submit supplemental memoranda, not to exceed 10 pages, addressing any issues
remaining in dispute.
A separate Order has issued on this date.
/s/
JOHN D. BATES
United States District Judge
Dated: June 16, 2016
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