Stein v. Central Intelligence Agency ( 2020 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
JEFFREY STEIN, )
)
Plaintiff, )
)
v. ) Civil Action No. 17-cv-0189 (TSC)
)
)
CENTRAL INTELLIGENCE AGENCY, )
et al., )
)
Defendant. )
)
MEMORANDUM OPINION
Plaintiff Jeffrey Stein brought this action under the Freedom of Information Act
(“FOIA”), 5 U.S.C. § 552, et seq., challenging certain responses to a series of FOIA requests he
submitted to nine federal agencies (collectively, “Defendants”): Central Intelligence Agency
(“CIA”), Department of Justice (“DOJ”), Department of Defense (“DOD”), Office of Personnel
Management (“OPM”), Office of the Director of National Intelligence (“ODNI”), Department of
Education (“Education”), Department of State (“State”), and Department of Commerce
(“Commerce”).
Before the court are Defendants’ Motion for Summary Judgment (ECF No. 22) and
Stein’s Cross-Motion for Partial Summary Judgment (ECF No. 29). Upon consideration of the
motions, the responses and replies thereto, and for the following reasons, the court will GRANT
and DENY Defendants’ motion in part, and GRANT and DENY Stein’s motion in part.
I. BACKGROUND
A. Stein’s FOIA Requests
1
Stein’s FOIA requests broadly fall into two categories, each involving alleged security
concerns related to Donald Trump’s presidential campaign and presidential transition. First,
Stein’s “briefing requests” sought “copies of all records, including e-mails and other forms of
electronic communications, about national security briefings given or to be given to Donald
Trump due to his Presidential candidacy,” including any security concerns related to such
briefing. (ECF No. 22-13 (“Defs. Stmt. Mat. Facts”) ¶ 1.) The request stated that agencies could
“exclude the substance of the briefings and focus only on records about logistics, security
concerns, and similar issues.” (See, e.g., ECF No. 22-7, Ex. YYY at 1.) It further clarified that
“Mr. Stein has no interest in learning what Mr. Trump is briefed about; he is only interested in
the process, and he is specifically interested in records discussing any security concerns.” (Id.)
Stein sent briefing requests to five agencies: CIA, DOD, DOJ, FBI, 1 and ODNI. (Defs. Stmt.
Mat. Facts ¶¶ 3, 22, 31, 42, 51.) Three agencies—CIA, FBI, and ODNI—identified and
produced some records in response to the request. (Id. ¶¶ 5, 33, 46.)
The second category of Stein’s FOIA requests, the “investigation requests,” sought
information related to background investigations of fifteen individuals reportedly under
consideration for senior positions in the Trump administration. (Id. ¶¶ 1–2.) The requests
sought “copies of all records, including emails, about any steps taken to investigate or authorize
(or discussions about potentially investigating or authorizing) [the individual in question] for
access to classified information.” (Id.) The fifteen individuals are: Stephen Bannon, Pamela
Bondi, Betsy DeVos, Carly Fiorina, Gen. Michael Flynn, Michael Flynn, Jr., Rudolph Giuliani,
Jared Kushner, James Mattis, Gen. David Petraeus, Wilbur Ross, Jr., Rex Tillerson, Donald
1
In the interest of clarity, the court will treat the FBI as a separate agency from DOJ, as the FBI
has its own FOIA office and processed requests independently of other DOJ components. (See
ECF No. 22-7 (“Hardy Decl.”) ¶¶ 1–3.)
2
Trump, Jr., Eric Trump, and Ivanka Trump. (Id. ¶ 2.) Four agencies—CIA, FBI, ODNI, and
OPM—received investigation requests for all fifteen individuals. (Id. ¶¶ 3, 31, 42, 54.)
Commerce, DOD, Education, and State received investigation requests for a subset of between
one and thirteen individuals. (Id. ¶¶ 17, 22, 28, 61.) Ultimately, three agencies—CIA, FBI, and
ODNI—identified and released some material responsive to Stein’s briefing or investigation
requests. (Id. ¶¶ 5, 33, 46.)
B. Agency Responses to Stein’s FOIA Requests 2
1. CIA
CIA received the briefing request from Stein on May 5, 2016, and all fifteen investigation
requests between December 5 and December 15, 2016. (ECF No. 22-3, Ex. 1 (“Shiner Decl.”)
¶ 7.) After Stein sued on January 31, 2017, CIA searched for responsive materials in accordance
with the schedule established by this court, and produced materials to Stein on a rolling basis,
releasing its final set of records on March 16, 2018. (Id. ¶ 9.) In all, CIA identified 65
responsive documents, produced 40 documents in whole or in part and withheld 25 in full,
invoking Exemptions 1, 3, 5, and 6. (Defs. Stmt. Mat. Facts ¶¶ 5, 7, 9, 11, 14; ECF No. 22-3,
Ex. A (“CIA Vaughn Index”).) CIA referred additional responsive materials to other agencies
and eventually produced eight of the referred documents, which included redactions made by the
originating agency. (Shiner Decl. ¶ 9).
2
Because Stein does not object to summary judgment as to Commerce on Count 24, (ECF No.
28 (“Pl. Opp.”) at 1 n.1), the court need not discuss Commerce’s responses to his requests. See
discussion in section III, supra.
3
2. FBI
FBI processed 352 pages of materials responsive to Stein’s requests; it released 100
pages in full, 163 pages with redactions, and withheld 89 pages in their entirety, invoking
Exemptions 5, 6, and 7(c). (Defs. Stmt. Mat. Facts ¶¶ 33–36.)
3. DOJ
On July 22, 2016, Stein’s counsel sent a copy of the briefing request to DOJ’s FOIA/PA
Mail Referral Unit (“MRU”), a part of DOJ’s Justice Management Division that accepts FOIA
requests from requesters who are unsure which DOJ component may possess the records they
seek. (ECF No. 22-9, Ex. 7 (“Brinkmann Decl.”) ¶¶ 3, 6.) When the MRU receives a request, it
decides “which components would be most likely to maintain the records sought.” (Id. ¶ 7.)
After determining that the DOJ’s Office of Information Policy (“OIP”) was one of the agency
components most likely to have materials responsive to Stein’s request, MRU forwarded the
request to OIP. (Id.) On April 17, 2017, OIP notified Stein’s counsel that the agency had
completed a search and could not locate any responsive records. (Id. ¶ 12.) OIP claims that it
searched for responsive materials in all locations reasonably likely to contain them. (Defs. Stmt.
Mat. Facts ¶ 52.)
4. DOD
i. Office of the Secretary of Defense and Joint Staff
The FOIA office for the Office of the Secretary of Defense and Joint Staff (“OSD/JS”), a
component of DOD, received a copy of Stein’s briefing request on May 5, 2016, and in a May
23, 2016 letter to Stein’s counsel, issued a “no records” response to the briefing request. (Id.
¶ 23; ECF No. 22-5, Ex. 3 (“Herrington Decl.”) ¶ 6.) Stein did not appeal this response. (Defs.
Stmt. Mat. Facts ¶ 24). However, on July 22, 2016 he e-mailed the OSD/JS action officer who
4
had sent the May 23 response, stating that his e-mail was “a renewal of the FOIA request
submitted on 5 May 2016.” (Herrington Decl. ¶ 7). On July 27, 2016, the officer responded that
the previous FOIA request was closed and that Stein should file another request online, or by
mail or fax to the OSD/JS Requester Service Center (“RSC”). (Id.) Later that day, Stein’s
counsel again e-mailed the action officer and asked him to forward the request to OSD/JS’s
FOIA office. (Id.) The officer replied on July 28, again instructing Stein’s counsel to “[p]lease
submit your own FOIA request to the Requester Service Center as stated below.” (Id. ¶ 8.) The
parties now dispute whether Stein’s counsel’s e-mails constituted a separate submission of the
briefing request. (Defs. Stmt. Mat. Facts ¶ 25; ECF No. 28 (“Pl. Response to Defs. Stmt. Mat.
Facts”) ¶ 25.)
Stein’s counsel also submitted thirteen investigation requests to OSD/JS, which claims
that it found no responsive records, despite searching all locations reasonably likely to contain
them. (Defs. Stmt. Mat. Facts ¶¶ 26, 27)
ii. Defense Manpower Data Center
Stein’s counsel submitted the same thirteen investigation requests sent to OSD/JS to the
DOD’s Defense Manpower Data Center (“DMDC”), which is responsible for maintaining the
Joint Personnel Adjudication System (“JPAS”) and other personnel security systems.
(Herrington Decl. ¶ 14.) Because DMDC responds to FOIA requests through the OSD/JS FOIA
office, these requests were “essentially duplicates” of the ones Stein sent to OSD/JS. (Id.)
Relying on a DMDC official’s statement that “the JPAS database does not maintain security
investigations of cabinet level personnel, and thus no system of records at DMDC would have
responsive material,” DMDC concluded that it would not have any JPAS information responsive
5
to Stein’s thirteen investigation requests, and communicated a “no records” response to the
OSD/JS FOIA office. (Id.)
5. ODNI
ODNI received the briefing request and all fifteen investigation requests from Stein.
(Defs. Stmt. Mat. Facts ¶ 42.) With respect to the investigation requests, the agency determined
that it “was not required to conduct a search for responsive records” because “ODNI is not
involved in the process of actually investigating or authorizing individuals for access to
classified national security information.” (ECF No. 22-8 (“Gaviria Decl.”) ¶ 39.) It also cited
Exemption 6 to justify withholding 31 pages of responsive records it received via referral from
the CIA, claiming that the records contained no reasonably segregable and non-exempt
information. (Id. ¶¶ 48, 50.) The agency concluded that there were no locations likely to contain
information responsive to Stein’s investigation requests, because ODNI “does not investigate or
authorize individuals for access to classified information.” (Id. ¶¶ 44–45.)
6. OPM
OPM referred Stein’s investigative requests to the National Background Investigations
Bureau (“NBIB”), an OPM component that “conducts background investigations for Federal
government agencies to use as the basis for suitability and security clearance determinations.”
(ECF No. 22-10 (“Watters Decl.”) ¶¶ 8, 12.) NBIB determined that its Personnel Investigations
Processing System, which includes information about individuals subject to background
investigations, was the only location likely to contain responsive records. (Id. ¶¶ 8, 12.)
On January 26, 2017, NBIB e-mailed Stein, informing him that it had found no
responsive materials for ten of the fifteen investigation requests. (Id. ¶ 15.) NBIB identified no
responsive records for two additional investigation requests, but, due to an administrative
6
oversight, it did not communicate these results to Stein until May 2017. (Id. ¶ 16). NBIB
located nine pages of materials responsive to the remaining three investigation requests, but cited
Exemptions 6 and 7(C) to justify withholding these records in full. (Defs. Stmt. Mat. Facts
¶¶ 57–58; Watters Decl. ¶ 24.) It also communicated these decisions to Stein via e-mail on
January 26, 2017. (Watters Decl. ¶ 21.) All thirteen response letters sent to Stein on January 26,
2017 notified him of his right to appeal the decision and explained the proper appeal procedures,
while also stating that OPM’s FOIA office would perform a separate search of records for
responsive materials. (Id.) The e-mails from NBIB to which the formal response letters were
attached referred to the decisions as both “interim” and “final.” (See ECF No. 22-10, Exs. 2, 4.)
Stein did not appeal the response letters he received on January 26, 2017 and filed this suit three
days later. (Watters Decl. ¶¶ 18–19.)
7. State
State received three investigation requests from Stein on December 6, 2016. (ECF No.
22-12, Ex. 10 (“Eric Stein Decl.”) ¶¶ 4, 8, 12.) State’s Office of Information Programs and
Services (“IPS”) located information responsive to the investigation request regarding Rex
Tillerson, but found no responsive materials for the other two requests. (Id. ¶¶ 52.) In July and
August 2017, IPS notified Stein that its search of agency records had identified 22 responsive
records. (Eric Stein Decl. ¶¶ 15–17.) State ultimately released two documents in full, eighteen
documents in part, and withheld two documents in full, citing Exemptions 6, 7(C), and 7(E), and
claimed that there was no reasonably segregable, non-exempt information in the withheld
materials. (Defs. Stmt. Mat. Facts ¶¶ 63, 65–66.) State also informed Stein that it had referred
nineteen documents to FBI for review. (Eric Stein Decl. ¶ 17.)
8. Education
7
On December 5, 2016, Stein’s counsel submitted one investigation request to Education
seeking records on steps taken to investigate or authorize Betsy Devos, President-elect Trump’s
nominee for Secretary of Education, for access to classified information. (ECF No. 22-6
(“Senecal Decl.”) ¶ 3.) On February 22, 2017, after Stein filed suit, Ronald Luczak, then the
director of Education’s Office of Security, Facilities, and Logistics, informed Education’s FOIA
Service Center that the agency had no records responsive to Stein’s request. (Id. ¶ 4.) Education
asserts that there were no locations within the agency that were likely to have responsive records
because the agency “does not conduct background investigations for cabinet secretaries or
cabinet secretary nominees and therefore did not have the responsibility for conducting Ms.
Devos’s background check.” (Defs. Stmt. Mat. Facts ¶ 29–30.)
C. Procedural History
Stein seeks an order directing Defendants to release all requested records, as well as
injunctive and/or declaratory relief, costs/attorney’s fees, and any other relief the court deems
just and proper. (ECF No. 1 (“Compl.”).) His Amended Complaint alleges records denials and
expedited processing denials in 26 counts against various Defendants. (ECF No. 6 (“Am.
Compl.”).) The court entered a standing FOIA order on April 28, 2017, directing the parties to
meet and confer to propose a schedule for proceeding with the case. (Apr. 28, 2017 Min. Order.)
The parties submitted several status reports between May 2017 and April 2018 providing the
court with updates on agencies’ responses to Stein’s requests and proposing briefing schedules.
(See ECF Nos. 9, 10, 11, 14, 16, 17, 18.) On March 30, 2018, they notified the court that
Defendants had completed all production of non-exempt portions of responsive records. (ECF
8
No. 17 at 1.) The parties then submitted the cross-motions for summary judgment that are now
before the court. 3
II. LEGAL STANDARDS
A. Summary Judgment
Summary judgment is appropriate if “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); see also
Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Waterhouse v. Dist. of Columbia, 298 F.3d 989,
991 (D.C. Cir. 2002). A court may enter summary judgment on a “claim or defense . . . or [a]
part of each claim or defense.” Fed. R. Civ. P. 56(a). A dispute of fact is “genuine” only “if the
evidence is such that a reasonable jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). A dispute is “material” only when it
involves facts “that might affect the outcome of the suit under the governing law.” Id. at 248.
“[F]actual disputes that are ‘irrelevant or unnecessary’ do not affect the summary judgment
determination.” Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006) (quoting Liberty Lobby,
477 U.S. at 248). The party seeking summary judgment “bears the heavy burden of establishing
that the merits of his case are so clear that expedited action is justified.” Taxpayers Watchdog,
Inc., v. Stanley, 819 F.2d 294, 297 (D.C. Cir. 1987).
In considering a motion for summary judgment, the court must view all facts in the light
most favorable to the nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
3
After both parties submitted summary judgment motions, Stein moved to strike portions of
various agency declarations, claiming they contained inadmissible legal arguments. (ECF No.
31.) The court denied Stein’s motion, reasoning that “[t]o the extent that Defendants’
declarations contain legal arguments, the court will reach its own legal conclusions and regard
the statements in the declarations as explanations of the declarant’s understanding of the issues
of the case.” (July 6, 2018 Min. Order.)
9
475 U.S. 574, 587 (1986). The moving party “bears the initial responsibility of informing the
district court of the basis for its motion, and identifying those portions of the ‘pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits . . .’
which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp.,
477 U.S. at 323. The nonmoving party’s opposition must be supported by affidavits,
declarations, or other competent evidence setting forth specific facts showing that there is a
genuine issue for trial. See Fed. R. Civ. P. 56(e); Celotex Corp., 477 U.S. at 324.
B. FOIA
“FOIA provides a ‘statutory right of public access to documents and records’ held by
federal government agencies.’” Citizens for Responsibility & Ethics in Washington v. U.S. Dep’t
of Justice, 602 F. Supp. 2d 121, 123 (D.D.C. 2009) (quoting Pratt v. Webster, 673 F.2d 408, 413
(D.C. Cir. 1982)). Federal agencies must comply with FOIA requests to make their records
available to the public unless the requested “information is exempted under [one of nine] clearly
delineated statutory [exemptions].” Id. (internal quotation marks omitted); see also 5 U.S.C.
§§ 552(a)–(b).
Agencies have “an obligation under FOIA to conduct an adequate search for responsive
records,” Edelman v. S.E.C., 172 F. Supp. 3d 133, 144 (D.D.C. 2016), and “[a]n inadequate
search for records constitutes an improper withholding” under the statute. Schoenman v. F.B.I.,
764 F. Supp. 2d 40, 45 (D.D.C. 2011). When a FOIA requester challenges an agency’s response,
the agency “must show beyond material doubt . . . that it has 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). The court employs a reasonableness test to determine whether an
agency’s search for responsive materials is adequate. Rodriguez v. Dep’t of Defense, 236 F.
10
Supp. 3d 26, 34 (D.D.C. 2017) (citing Campbell v. U.S. Dep’t of Justice, 164 F.3d 20, 27 (D.C.
Cir. 1998)). “[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 out the search.” Guillermo
Felipe Duenas Iturralde v. Comptroller of the Currency, 315 F.3d 311, 315 (D.C. Cir. 2003).
However, “evidence that relevant records have not been released may shed light on whether the
agency’s search was indeed inadequate.” Weisberg, 705 F.2d at 1351.
“An agency may establish the adequacy of its search by submitting reasonably detailed,
nonconclusory affidavits [or declarations] describing its efforts.” Baker & Hostetler LLP v.
United States Dep’t of Commerce, 472 F.3d 312, 318 (D.C. Cir. 2006) (alteration in original).
The court must accord agency affidavits “a presumption of good faith, which cannot be rebutted
by purely speculative claims about the existence and discoverability of other documents.”
Safecard Servs., Inc. v. S.E.C., 926 F.2d 1197, 1200 (D.C. Cir. 1991) (internal quotation marks
and citation omitted). However, “it is well-established that a conclusory affidavit that gives ‘no
detail as to the scope of the examination . . . is insufficient as a matter of law’ in demonstrating
the adequacy of the search.” Am.-Arab Anti-Discrimination Comm. v. U.S. Dep’t of Homeland
Sec., 516 F. Supp. 2d 83, 87 (D.D.C. 2007) (quoting Weisberg v. U.S. DOJ, 627 F.2d 365, 370
(D.C. Cir. 1980)).
The district court conducts a de novo review of the government’s decision to withhold
requested documents under any of FOIA’s specific statutory exemptions. See 5 U.S.C.
§ 552(a)(4)(B). The agency bears the burden of showing that the responsive material withheld
falls within a stated exemption, see Petroleum Info. Corp. v. U.S. Dep’t of the Interior, 976 F.2d
1429, 1433 (D.C. Cir. 1992) (citing 5 U.S.C. § 552(a)(4)(B)), and its “justification for invoking a
11
FOIA exemption is sufficient if it appears ‘logical’ or ‘plausible.’” Ayuda, Inc. v. FTC, 70 F.
Supp. 3d 247, 261 (D.D.C. 2014) (quoting Wolf v. CIA, 473 F.3d 370, 374–75 (D.C. Cir. 2007)).
“FOIA cases typically and appropriately are decided on motions for summary judgment.”
Georgacarakos v. F.B.I., 908 F. Supp. 2d 176, 180 (D.D.C. 2012) (quoting Defenders of Wildlife
v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009)). Summary judgment for the
agency is only appropriate when it proves that it has fully discharged its FOIA obligations.
Moore v. Aspin, 916 F. Supp. 32, 35 (D.D.C. 1996). In considering a motion for summary
judgment for the Defendant, the court analyzes all underlying facts and inferences in the light
most favorable to the FOIA requester. Unrow Human Rights Impact Litig. Clinic v. United
States Dep’t of State, 134 F. Supp. 3d 263, 271 (D.D.C. 2015). A motion for summary judgment
should be granted in favor of the FOIA requester, however, only “[w]hen an agency seeks to
protect material which, even on the agency’s version of the facts falls outside the proffered
exemption[.] Coldiron v. U.S. Dep’t of Justice, 310 F. Supp. 2d 44, 48 (D.D.C.2004) (quoting
Petroleum Info. Corp. v. Dep't of Interior, 976 F.2d 1429, 1433 (D.C.Cir.1992)).
III. ANALYSIS
Stein does not challenge the agencies’ responses to many of his FOIA requests. (ECF
No. 28 (“Pl. Opp.”) at 7–8.) With two exceptions, he does not contest the responses that CIA,
FBI, OSD/JS, MRU/OIP, and ODNI provided for his briefing requests (Counts 1, 3, 4, 6, and 8).
(Id.) The two exceptions are Stein’s claims (1) that OSD/JS improperly refused to process his
request on the grounds that it was not properly submitted, and (2) that NBIB’s response to his
briefing request did not qualify as a final determination requiring him to exhaust his
administrative remedies before filing suit. (Pl. Opp. at 8–11.) Additionally, Stein does not
contest the adequacy of the searches conducted by State (Count 23) and Commerce (Count 24) in
12
response to his investigation requests, (id. at 1 n.1, 8), and only objects to certain exemptions that
CIA, FBI, OPM, ODNI, and State invoked to justify withholdings. (Id.) 4
While “a motion for summary judgment cannot be ‘conceded’ for want of opposition,”
Winston & Strawn, LLP v. McLean, 843 F.3d 503, 505 (D.C. Cir. 2016), “[t]his does not mean
. . . that the Court must assess the legal sufficiency of each and every [claim] invoked by the
government in a FOIA case.” Shapiro v. United States Dep’t of Justice, 239 F. Supp. 3d 100,
106 n.1 (D.D.C. 2017). In Shapiro, the court held:
Where the FOIA requester responds to the government’s motion for summary
judgment without taking issue with the government’s decision to withhold or to
redact documents, the Court can reasonably infer that the FOIA requester does not
seek those specific records or information and that, as to those records or
information, there is no case or controversy sufficient to sustain the Court’s
jurisdiction.
Id; see Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). Accordingly, the court will
address only Stein’s arguments in response to Defendants’ motion for summary judgment.
Stein also does not contest Defendants’ argument that his expedited processing denial
claims are now moot because all Defendant agencies have issued a final decision on his requests.
(ECF No. 22-1 (“Defs. MSJ”) at 28 n.10); see Muttitt v. United States Dep’t of State, 926 F.
Supp. 2d 284, 296 (D.D.C. 2013) (holding that “the only scenario in which a court can properly
grant relief to a Freedom of Information Act (FOIA) requester on the merits of an expedited
processing claim is when an agency has not yet provided a final substantive response to the
individual’s request for records”) (internal quotation marks omitted).
The remaining disputes involve three broad legal issues: (1) the adequacy of certain
agency searches or decisions not to search, (2) the legality of the withholdings of responsive
4
Stein does not contest any Defendant’s decision to withhold responsive records pursuant to
Exemptions 1, 3, and 5. (See Defs. MSJ at 28–34.)
13
materials, and (3) two threshold questions regarding Stein’s duty to exhaust his administrative
remedies before filing suit. The court’s analysis organizes the outstanding issues according to
each agency.
A. CIA
Although Stein does not challenge the CIA’s search or withholdings in response to his
briefing request, (see Pl. Opp. at 7–8), he challenges CIA’s response to his investigation
requests, alleging that CIA (1) presented insufficient evidence describing certain aspects of its
searches and the rationale for certain withholdings, (2) improperly withheld responsive records,
and (3) failed to release all reasonably segregable responsive material. (Id. at 13–16, 24–26, 27–
28.)
1. CIA presented sufficient evidence describing the searches it conducted.
Stein contends that CIA did not adequately describe its search of the Office of Security
(“OS”) in response to his investigation requests. (Pl. Opp. at 16.) Stein acknowledges that
CIA’s declaration provides “a thorough discussion of [its] search” of one agency database, but
claims that the declaration addressed only half the search, because it described only “[t]he
primary database searched by OS,” and CIA stated that it “searched personnel reviewing
holdings from two electronic databases.” (Id.; Shiner Decl. ¶ 12.) CIA then submitted a
supplemental declaration confirming that each relevant electronic database “was searched using
the search terms and date range described in the First Declaration,” (ECF No. 39-1 (“Suppl.
Shiner Decl.”) ¶ 3), and explaining that the second database “is an electronic repository used to
store, among other things, documents collected or produced during security clearance
processing.” (Id. ¶ 5.)
14
Stein’s argument is unconvincing. In quoting from the first Shiner Declaration, he
ignores its statement that CIA employed the search terms for “each of the relevant electronic
records and email systems searched.” (Shiner Decl. ¶ 14) (emphasis added). Further, the
agency’s supplemental declaration confirms that it used the same search terms for each database.
(Suppl. Shiner Decl. ¶ 3.) The level of detail in Shiner’s description of the second database
closely mirrors her description of the primary database. (See ECF No. 39 (“Defs. Reply”) at 20.)
Given Stein’s concession that CIA provided a “thorough” description of its search of the primary
database, (Pl. Opp. at 16), the court is not persuaded by his attempt to now argue that the agency
failed to provide enough information because it did not disclose the names of the two systems.
(ECF No. 43 (“Pl. Reply”) at 9.) Moreover, Stein provides no case law suggesting that an
agency must disclose the names of the databases it searches. CIA has therefore offered
satisfactory descriptions of the databases it searched for responsive records.
2. CIA adequately described the records it withheld from Stein’s investigation requests.
Stein claims that CIA presents no non-conclusory evidence detailing the records it
withheld in response to his investigation requests or the reasons these records were exempt from
disclosure. (Pl. Opp. at 11.) He argues that CIA’s declaration and Vaughn index do not show
why the claimed exemptions apply to the material found in documents 43–64. (Id. at 13.)
“‘A district court may grant summary judgment to the government in a FOIA case only if
the agency affidavits describe the documents withheld and the justifications for nondisclosure in
enough detail and with sufficient specificity to demonstrate that material withheld is logically
within the domain of the exemption claimed.’” PHE, Inc. v. United States Dep’t of Justice, 983
F.2d 248, 250 (D.C. Cir. 1993) (quoting King v. United States Dep’t of Justice, 830 F.2d 210,
217 (D.C. Cir. 1987)). An affidavit is “clearly inadequate” if it merely includes a “categorical
15
description of redacted material coupled with categorical indication of anticipated consequences
of disclosure.” PHE, Inc., 983 F.2d at 250; see also King, 830 F.2d at 223–24 (holding that, “for
each withholding,” an agency “must discuss the consequences of disclosing the sought-after
information”).
CIA has provided affidavits which adequately provide sufficient information and detail to
explain the reasons for nondisclosure. The Vaughn index for documents 43–64 provides, for
each document, (1) a brief label describing the document type (e.g. “email”), (2) the exemption
justifying the withholding, (3) a short overview of the statutory purpose and scope of the claimed
exemption, and (4) language stating that CIA reviewed the document and determined that it
contained no non-exempt and reasonably segregable information that CIA could release. (ECF
No. 22-3, Ex. A (“CIA Vaughn Index”) at Nos. 43–64.)
CIA’s Vaughn index and initial declaration addressed the records by category, rather than
by document. (See Shiner Decl. ¶¶ 20–24, 26, 31.) As such, there is merit to Stein’s argument
that neither the declaration nor the index “describe each document or portion thereof withheld,”
King, 830 F.2d at 223 (emphasis in original), such that the agency meets its burden “of
demonstrating applicability of the exemptions invoked as to each document or segment
withheld.” Id. at 224 (emphasis in original). That deficiency, however, is remedied by Shiner’s
supplemental declaration, which includes additional descriptions for each of the 22 challenged
documents and explains why the claimed exemption applies to specific documents. (Suppl.
Shiner Decl. ¶¶ 6–10.) While Shiner groups the records according to shared characteristics, she
provides additional information about each of the 22 documents, identified by their Vaughn
index number. (Id.) The supplemental declaration describes each document “in enough detail
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and with sufficient specificity to demonstrate that material withheld is logically within the
domain of the exemption claimed.” PHE, Inc., 983 F.2d at 250.
For the reasons set forth above, CIA’s description of the documents is far more specific
than the “vague and conclusory” affidavit language that the D.C. Circuit has found inadequate.
PHE, Inc., 983 F.2d at 252. Therefore, the agency has presented enough evidence explaining the
reasons for withholding the documents at issue.
3. CIA improperly withheld responsive records pursuant to Exemption 6.
Stein contends that CIA improperly withheld documents 43–64 for alleged privacy
reasons. (Pl. Opp. at 24.) He only addresses Exemption 6 in his opposition brief; he does not
dispute CIA’s claims that it properly withheld responsive records under Exemptions 1, 3, and 5.
(Id. at 24–26; Defs. MSJ at 28–34.) 5
Exemption 6 excludes “personnel and medical files and similar files” when the disclosure
of such files “would constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C.
§ 552(b)(6). The term “similar files” is construed broadly to cover “[a]ll information which
applies to a particular individual . . ., regardless of the type of file in which it is contained.”
Milton v. United States Dep’t of Justice, 783 F. Supp. 2d 55, 58 (D.D.C. 2011) (quoting
Washington Post Co. v. United States Dep’t of Health & Human Servs., 690 F.2d 252, 260 (D.C.
Cir. 1982)). “The information in the file ‘need not be intimate’ for the file to satisfy the
standard, and the threshold for determining whether information applies to a particular individual
is minimal.” Milton, 783 F. Supp. 2d at 58 (quoting N.Y. Times Co. v. NASA, 920 F.2d 1002,
1006 (D.C. Cir. 1990)). CIA’s initial declaration states that “several of the documents at issue,
5
Although Defendants’ reply brief discusses “the CIA’s Exemption 6 and Exemption 7(C)
withholdings,” (Defs. Reply at 22), CIA never cited Exemption 7(C) to justify withholding
records. (See Shiner Decl. ¶¶ 9–20; Defs. MSJ at 40–41.)
17
used in the clearance process, contain large volumes of personally identifiable information,
including names, social security numbers, addresses, and credit histories.” (Shiner Decl. ¶ 31.)
Based on this information, CIA has shown that the records it withheld “appl[y] to a particular
individual” and thus meet Exemption 6’s threshold requirement.
Because the information CIA withheld is in a file covered by Exemption 6, the court must
conduct a balancing test to determine whether disclosure would constitute a “clearly unwarranted
invasion of personal privacy.” Painting & Drywall Work Pres. Fund, Inc. v. Dep’t of Hous. &
Urban Dev., 936 F.2d 1300, 1301 (D.C. Cir. 1991). This involves weighing the individual
privacy interests in the requested information against the public interest in disclosure. Id. at
1302. “[T]he only relevant public interest in disclosure to be weighed in this balance is the
extent to which disclosure would serve the core purpose of the FOIA, which is contributing
significantly to public understanding of the operations or activities of the government.” United
States Dep’t of Defense v. Fed. Labor Relations Auth., 510 U.S. 487, 495 (1994) (internal
quotation marks and citations omitted) (emphasis in original); see also Nat’l Ass’n of Home
Builders v. Norton, 309 F.3d 26, 34 (D.C. Cir. 2002) (“[U]nless a FOIA request advances the
citizens’ right to be informed about what their government is up to, no relevant public interest is
at issue.”) (internal quotation marks and citation omitted). A FOIA requester bears the burden of
identifying an overriding public interest and demonstrating that disclosure would further that
interest. Milton, 783 F. Supp. 2d at 58.
Stein does not dispute that the balancing test favors nondisclosure of the names and
identifying information of CIA employees and third parties. (See Pl. Opp. at 26.) Rather, he
claims that Exemption 6 does not warrant withholding the names of the fifteen investigated
individuals, arguing that merely disclosing their names would not constitute a clearly
18
unwarranted violation of their privacy. 6 (Id. at 25–26.) The court agrees. This scenario does not
present strong interests on either side of the balancing test. Disclosing the investigated officials’
names hardly implicates “weighty” privacy interests. Judicial Watch, Inc. v. United States Dep’t
of State, 282 F. Supp. 3d 36, 44 (D.D.C. 2017) (applying Exemption 6 to a report that “contained
personal information pertaining to [a named employee’s] relationships, character assessments,
financial details, and medical information”) (internal quotation marks omitted). The court sees
no reason why the release of the fifteen individuals’ names, without more, “would be reasonably
likely to subject [the named] individuals or those associated with them to increased harassment
or threats.” (Shiner Decl. ¶ 32.) Revealing the identities of public officials receiving security
clearance investigations, unlike the identities of subjects of criminal investigations, would not
“subject those identified to embarrassment and potentially more serious reputational harm.”
Safecard Servs., 926 F.2d at 1205 (finding a “substantial” privacy interest in protecting from
disclosure the identity of a subject in a criminal investigation).
Nor, however, is there a particularly compelling public interest on the other side of the
scale. Releasing redacted documents that reveal nothing but the individuals’ names would not
shed much light on CIA’s operations if, as Stein claims, the fact that they were investigated for
6
Stein relies on Shiner’s statement that “Exemption 6 applies to the names and identifying
information of CIA employees and the names of non-agency personnel appearing in the records,”
which indicates that CIA only applied the exemption to the names of the fifteen individuals.
(Shiner Decl. ¶ 33) (emphasis added.) It is unclear exactly what information about the fifteen
individuals the withheld records contain. CIA asserts that many of the documents contain
“personally identifiable information about private individuals” but it does not specify if this
withheld information consists of names, other identifying information, or both. (Suppl. Shiner
Decl. ¶¶ 7–10). Shiner notes that the withheld documents relating to the security clearance
process “contain large volumes of personally identifiable information, including names, social
security numbers, addresses, and credit histories.” (Shiner Decl. ¶ 31.) Any records containing
social security numbers or credit card histories would almost certainly relate to the subjects of
the investigations. Shiner also states that two of the responsive documents—entries 43 and 60—
“contain the names of . . . private citizens.” (Suppl. Shiner Decl. ¶ 6.)
19
security clearances “is a matter of record.” (Pl. Opp. at 26.) However, because of the negligible
privacy interests in the names alone, and because disclosing this limited information would
convey some information about CIA’s relevant activities by confirming that the agency
conducted security clearance investigations for the named individuals, the balance tips in favor
of disclosure. Consequently, the court will grant Stein summary judgment with respect to these
challenged withholdings.
Because this holding obligates the CIA to produce additional documents, the court need
not consider at this juncture Stein’s claim that CIA failed to release all reasonably segregable,
non-exempt information from documents 43–64.
B. FBI
Stein argues that the FBI (1) interpreted his investigation requests too narrowly; (2) failed
to adequately support its responses to two investigation requests; (3) improperly invoked
Exemptions 6 and 7(C) to justify withholding responsive records; and (4) failed to release all
reasonably segregable, non-exempt material. (Pl. Opp. at 17–18, 23–24, 26–28.)
1. FBI reasonably interpreted Stein’s investigation requests.
Stein’s investigation requests sought information regarding the “steps taken to investigate
or authorize” the fifteen individuals for “access to classified information.” (Defs. Stmt. Mat.
Facts ¶ 1.) The FBI concluded that the data or results of the background investigations were
non-responsive. (Defs. MSJ at 39; Defs. Reply at 10.) It thus limited its search to information
about the process the agency followed in conducting security clearance investigations or
authorizations. (Id.)
“[A]n agency [] has a duty to construe a FOIA request liberally,” Nation Magazine v.
United States Customs Serv., 71 F.3d 885, 890 (D.C. Cir. 1995), and it must “select the
20
interpretation that would likely yield the greatest number of responsive documents.” Rodriguez,
236 F. Supp. 3d at 36. “The agency must be careful not to read the request so strictly that the
requester is denied information the agency well knows exists in its files, albeit in a different form
from that anticipated by the requester.” Hemenway v. Hughes, 601 F. Supp. 1002, 1005 (D.D.C.
1985). At the same time, however, it is “bound to read [the request] as drafted, not as either
agency officials or [the requester] might wish it was drafted.” Miller v. Casey, 730 F.2d 773,
774 (D.C. Cir. 1984); see also Kowalczyk v. United States Dep’t of Justice, 73 F.3d 386, 389
(D.C. Cir. 1996) (“[T]he [agency] is not obliged to look beyond the four corners of the request
for leads to the location of responsive documents.”)
FBI properly interpreted Stein’s requests. The plain meaning of “copies of all records,
including emails, about any steps taken to investigate or authorize (or discussions about
potentially investigating or authorizing) [an individual] for access to classified information”
reasonably encompasses information about FBI’s investigatory process. (Hardy Decl., Ex. A)
(emphasis added). It does not extend to the data or results of the investigations. See
McClanahan v. United States Dep’t of Justice, 712 F. App’x 6, 8 (D.C. Cir. 2018) (finding that
FBI properly applied a similarly narrow interpretation of a FOIA request when the requester
“sought documents about the FBI’s investigation into his possession of classified information,
not ‘documents about the classified information’ itself”). If Stein intended for his request to
cover such information, he should have made a specific request; FBI’s interpretation was not
unreasonable merely because the agency declined to look beyond the text and construe the
21
requests as broadly as Stein would like. Miller, 730 F.2d at 774. 7 Consequently, FBI’s search
for records responsive to the investigation requests was adequate on these grounds.
2. FBI’s “no records” responses to two investigation requests were inadequate to
support summary judgment in its favor.
In Weisberg, 705 F.2d 1344, the D.C. Circuit noted that “there may be times when an
agency’s inability to retrieve documents known or thought to be in its files is inherently
unbelievable.” Id. at 1351. Stein claims FBI’s conclusion that it did not have responsive records
for the investigation requests for Ivanka Trump and Michael Flynn, Sr. meets this standard. (Pl.
Opp. at 23–24.)
At first glance, FBI’s searches for records responsive to these two investigation requests
appear to have been adequate. As the Hardy Declaration explains, FBI employed the same
search method—a three-way phonetic search—for each of the fifteen individuals named in
Stein’s investigation requests. (Hardy Decl. ¶ 107.) This methodology confirmed that six of the
individuals had been the subjects of FBI background investigations within the specified time
frame (July 1, 2016–May 25, 2017). (Id.) Further, Stein offers no reason why FBI’s search
method would not discover responsive records for Ivanka Trump and Michael Flynn, Sr. when it
yielded records for six others named in the investigation requests.
Stein does, however, present “evidence that relevant records have not been released,”
which the D.C. Circuit has recognized “may shed light on whether the agency’s search was
indeed inadequate.” Weisberg, 705 F.2d at 1351. He calls attention to two news articles
reporting that Ivanka Trump was in the process of receiving a security clearance by March 2017.
7
Contrary to Stein’s argument, his asserted public interest in disclosure—“serious concerns
about granting [the named individuals] access to information classified in the interest of national
security”—does not support a broader reading of his requests when the plain language of the
requests is limited to records about the investigatory process. (Pl. Opp. at 19–20.)
22
(See Pl. Opp. at 23–24.) He also notes two queries in NBIB’s Clearance Verification System
about Michael Flynn, Sr.’s clearance in August 2016 and October 2016, indicating that Flynn
was undergoing a background investigation during this time. (Id.) In light of this evidence,
FBI’s explanation for the lack of responsive records—the “relatively narrow timeframe” spanned
by the requests—is unconvincing.
Supported by these facts, Stein’s argument is considerably more credible than a “purely
speculative claim [] about the existence and discoverability of other documents.” Safecard
Servs., 926 F.2d at 1200. He casts enough doubt on the presumption of good faith accorded to
FBI’s declaration to preclude summary judgment for FBI as to these two requests, and the court
will therefore direct FBI to submit an additional declaration explaining its search methodology
for the two requests.
Finally, because this further search may yield additional records that the agency finds are
subject to an exemption, the court will defer ruling on FBI’s other withholdings, and the question
of segregability, to a later date.
C. DOD (OSD/JS)
DOD moves for summary judgment because Stein failed to exhaust his administrative
remedies. (Defs. MSJ at 13–15.) While Stein concedes that he never appealed the “no records”
response he received from the OSD/JS FOIA office on May 23, 2016, 8 (Herrington Decl. ¶ 6;
Am. Compl. ¶ 75), he argues that his subsequent e-mails to the OSD/JS action officer on July 22
and July 27, 2016 constituted a separate FOIA request that OSD/JS then refused to process. (Pl.
Opp. at 8–10.) DOD counters that Stein’s attempts to renew his previous request were not
8
Stein does not challenge DOD’s claim that OSD/JS’s search for responsive records was
adequate. (See Pl. Opp. at 8–10; Defs. Reply at 4.) He does, however, allege that DMDC, a
component of DOD, failed to conduct a reasonable search. See section III.D.1–2, supra.
23
properly submitted because his e-mail did not comply with the agency’s regulations for
submitting FOIA requests. (Defs. MSJ at 14.)
The D.C. Circuit has long recognized that when a FOIA requester receives an adverse
response from an agency, “exhaustion of administrative remedies is generally required before
filing suit in federal court . . .” Oglesby v. United States Dep’t of the Army, 920 F.2d 57, 61
(D.C. Cir. 1999). In order to qualify as a separate FOIA request, Stein’s July 2017 e-mails must
have been submitted “in accordance with published rules stating the time, place, fees (if any),
and procedures to be followed.” 5 U.S.C. § 552(a)(3)(A). “An agency’s obligation under the
FOIA does not arise . . . until a proper request is received.” Thomas v. Fed. Commc’ns Comm’n,
534 F. Supp. 2d 144, 145 (D.D.C. 2008).
The July 22 and 27 e-mails from Stein’s counsel did not comply with DOD’s regulations
for submitting FOIA requests, which require FOIA requests to be addressed to a FOIA Requester
Service Center (“RSC”). DOD Manual 5400.07 § 3.1(c). A published DOD regulation dictates
that “[a]ll DoD RSCs have the capability to receive requests electronically either through email
or a web portal,” 32 C.F.R § 286.2(a), and Section 3.3(b)(1) of the DOD Manual 5400.07
requires each RSC website to provide “[t]he address, telephone number, facsimile number, and
organizational e-mail address to which the public can send FOIA requests.” Stein’s counsel sent
the two e-mails to an individual action officer, not to an organizational e-mail address authorized
to receive requests pursuant to 32 C.F.R § 286.2(a) and Section 3.3(b)(1) of DOD Manual
5400.07. (Herrington Decl. ¶ 7.) Although the OSD/JS action officer did not provide an
organizational e-mail address among the options for submitting a proper FOIA request, and
Defendant does not indicate that one was publicly available, the action officer provided
instructions for submitting a request via the web portal. (Id. ¶¶ 7–8). Stein was familiar with the
24
portal, having used it to submit the first version of his briefing request to OSD/JS on May 5,
2016. (See Am. Compl. ¶ 71.) Thus, his attempts to renew his briefing request to OSD/JS did
not constitute a new, subsequent FOIA request to which the agency was obligated to respond.
Because Stein chose not to administratively appeal the OSD/JS FOIA office’s response to his
initial briefing request, summary judgment for DOD is appropriate on this issue.
D. DOD (DMDC)
Stein challenges DMDC’s decision to not search various databases for records responsive
to his investigation requests. (Pl. Opp. at 18–19.) He argues that DMDC, like FBI, interpreted
the requests too narrowly, (id.), and improperly refused to search its JPAS database and three
other records systems under its control. (Id. at 19 n.10, 21–23.)
1. DMDC reasonably interpreted Stein’s investigation requests.
As the court found with regard to Stein’s claims against FBI, (see, supra, section III.B), it
was reasonable for DMDC to interpret the scope of the requests to include only information
related to the clearance investigation process, and not the data or results of these investigations.
Noting that “the JPAS database does not maintain security investigations of cabinet level
personnel (including the Secretary of Defense),” DMDC concluded that JPAS would not contain
responsive records involving “steps taken to investigate or authorize” the named individuals for a
security clearance. (ECF No. 38-2 (“Suppl. Herrington Decl.”) ¶ 3.) The court is unpersuaded
by Stein’s argument that his request for the “steps taken” to process individuals for security
clearances encompasses data produced during those investigations. (Pl. Opp. at 19.) Thus, the
only remaining question is whether DOD’s affidavit shows that a search of JPAS—or its other
records systems—would be unnecessary.
2. DMDC properly concluded that a search of JPAS would be futile.
25
Through affidavits or declarations, an agency can establish that “[a] search would have
been futile” by showing that it “does not maintain any records” related to the subject of the
request. Cunningham v. United States Dep’t of Just., 40 F. Supp. 3d 71, 85 (D.D.C. 2014), aff’d,
No. 14-5112, 2014 WL 5838164 (D.C. Cir. Oct. 21, 2014). “The adequacy of [an] affidavit must
be judged . . . in light of the entirety of its contents,” Am.-Arab Anti-Discrimination Comm., 516
F. Supp. 2d at 88, and a declarant’s “familiar[ity] with the records that [the agency] maintains” is
an important factor in determining the sufficiency of an agency’s determination that a search is
unnecessary. Cunningham, 40 F. Supp. 3d at 85; see also Am.-Arab Anti-Discrimination Comm.
516 F. Supp. 2d at 87–88 (finding satisfactory a declaration stating that Immigration and
Customs Enforcement did not maintain information sought when the declarant was “presumed
able to familiarize himself with the statistics ICE does and does not maintain,” even though the
operative statement was “akin to simple ipse dixit” and that its adequacy was “a close call”).
DOD’s declaration, like the declaration in American-Arab Anti-Discrimination
Committee, does not “provide[] much insight as to what the [agency’s] document location
protocols are [or] how they were followed in this case.” Id. at 88. With respect to JPAS, Mark
Herrington, DOD’s declarant, relies solely on DMDC’s statement that the “database does not
maintain security investigations of cabinet level personnel (including the Secretary of Defense).”
(Herrington Decl. ¶ 14.) Although this is little more than an unsupported assertion, Herrington’s
stated familiarity with DMDC databases and with the DMDC official’s conclusion provides
enough indicia of reliability to provide a sufficient explanation for not searching JPAS. As
Associate Deputy General Counsel in DOD’s Office of General Counsel (“OGC”), Herrington is
responsible for “coordinating [FOIA] searches across DOD to ensure thoroughness,
reasonableness, and consistency.” (Herrington Decl. ¶ 1.). He was the OGC counsel assigned to
26
this case and declares that he was familiar with JPAS and the DMDC official’s rationale for
declining to search this database. (Id. ¶¶ 2, 14; Suppl. Herrington Decl. ¶ 3.) Although it is a
“close call,” Am.-Arab Anti-Discrimination Comm. 516 F. Supp. 2d at 87, Herrington’s
Declarations, evaluated in light of his personal knowledge of JPAS and the communications
from the DMDC official, adequately “explain why a search would be futile and is unnecessary.”
Id. at 88.
3. DMDC has shown that searching additional databases under its purview would be
futile.
Stein claims that three other DMDC databases are likely to contain responsive records
and should have been searched: the Defense Central Index of Investigations (“DCII”), the
Defense Information System for Security (“DISS”), and the Improved Investigative Records
Repository (“IIRR”). (Pl. Opp. at 21–22). In response, Herrington submitted a supplemental
declaration stating that the three databases “do contain information relating to security clearances
and background investigations” but “would not have contained information about the steps taken
to investigate or authorize for access to classified information the individuals specificed [sic] in
Plaintiff’s request.” (Suppl. Herrington Decl. ¶ 3.)
While an agency “cannot limit its search to only one record system if there are others that
are likely to turn up the information requested,” Oglesby, 920 F.2d at 68, Herrington’s second
declaration provides enough evidence to show that none of the three additional databases are
likely to contain records responsive to Stein’s requests. DCII “is used as a central database for
DOD conducted or sponsored investigations” but “would not include investigation of cabinet
level officials.” (Suppl. Herrington Decl. ¶ 4.) DISS “serves as the system of record for
personnel security, security, suitability and credential management of all DOD employees;
including military personnel, civilians, and DOD contractors” and “provides secure
27
communications between Adjudicators, Security Officers and Component Adjudicators in
support of eligibility and access management.” (Id. ¶ 5.) However, it does not “contain security
investigation information regarding cabinet level officials.” (Id.) Lastly, IIRR “only contains
Personnel Security Investigations that were conducted prior to 2006—ten years prior to the time
frame of Plaintiff’s requests.” (Id. ¶ 6.) For the reasons stated in the preceding discussion
regarding JPAS, (see supra section III.D.1), the court concludes that the two declarations provide
adequate explanation for DMDC’s decision not to search the three databases. Stein’s claims do
not overcome the “presumption of good faith” that the court accords to DMDC’s declarations.
Safecard Servs., 926 F.2d at 1200.
DMDC reasonably interpreted the investigation requests it received from Stein, and
Herrington’s declarations support the DMDC’s determination that searching the JPAS, DCII,
DISS, or IIRR databases would be unnecessary. Accordingly, the court will grant summary
judgment to DOD as to this claim.
E. DOJ
Stein does not contest the adequacy of OIP’s search in response to his briefing request.
(Pl. Opp. at 12 n.5.) Instead, he focuses on perceived inadequacies at the referral stage, arguing
that the agency did not present “any evidence” supporting the MRU’s determination that OIP and
FBI were the only DOJ components likely to possess records responsive to Counts 3 and 11,
respectively. (Id. at 12 (emphasis in original).)
Here, as with all FOIA searches, “the issue to be resolved is not whether there might exist
any other documents possibly responsive to the request, but rather whether the search for those
documents was adequate.” Bartko v. United States Dep’t of Justice, No.13-1135, 2014 WL
12787219, at *2 (D.D.C. Aug. 25, 2014) (quoting Weisberg v. Dep’t of Justice, 745 F.2d 1476,
28
1485 (D.C. Cir. 1984)). DOJ’s explanation as to why the MRU only referred the request to OIP
is inadequate. Vanessa Brinkmann’s declaration states only that “the MRU determined that OIP
was one of the components most likely to have records responsive to plaintiff’s request.”
(Brinkmann Decl. ¶ 7.) Brinkmann, who is Senior Counsel at OIP, part of DOJ’s Justice
Management Division, does not indicate whether she has any relationship with the MRU, or any
personal knowledge about why MRU decided to refer the matter. (Brinkmann Decl. ¶ 1.) In this
respect, this case is distinguishable from Bartko, where the court, in denying summary judgment
to the Plaintiff in a dispute over an MRU referral, relied on a declaration submitted by an official
in the Justice Management Division that explained the basis for the MRU’s decision. 2014 WL
12787219 at *2. Here, the declarations in the record fail to explain MRU’s determination “in
reasonable detail.” Perry v. Block, 684 F.2d 121, 127 (D.C. Cir. 1982). 9
DOJ has also presented inadequate evidence justifying MRU’s decision to refer the
investigation requests to FBI. 10 Other than a cursory statement in the May 18, 2017 Joint Status
Report confirming that MRU referred the investigation requests to FBI, (ECF No. 9 at 4.), there
is no evidence in the record explaining how or why MRU decided that FBI was likely to have
responsive records.
9
Stein also argues that MRU’s finding that “OIP was one of the components most likely to
have” responsive records was inadequate to justify referring the request only to OIP. (Pl. Opp. at
12.) But he supports this claim by making a false equivalence between an agency’s referral of a
FOIA request to a specific component and a search of a records systems within an agency
component. While the D.C. Circuit has held that only searching the records systems “most
likely” to have responsive materials is inadequate, Mobley v. CIA, 806 F.3d 568, 582 (D.C. Cir.
2015) (citations omitted), it has not held that only referring to the component “most likely” to
have responsive material is inadequate. Moreover, DOJ regulations specifically instruct the
MRU, upon receiving a FOIA request, to direct the request to the agency component “most
likely” to possess responsive records, 28 C.F.R. § 16.3(a)(2) (emphasis added).
10
As discussed in Section III.B.1, supra, FBI received all fifteen of Stein’s investigation
requests, so the MRU’s referral created no new obligations for FBI.
29
For these reasons, DOJ is not entitled to summary judgement on Counts 3 or 11, and is
directed to submit a supplemental declaration providing a more fulsome explanation for MRU’s
decision to refer the requests to FBI.
F. OPM/NBIB
Stein and OPM dispute (1) whether Stein failed to exhaust his administrative remedies
for certain investigation requests, (2) whether NBIB interpreted the scope of the investigation
requests too narrowly, and (3) whether NBIB properly withheld responsive records pursuant to
Exemptions 6 and 7(C).
1. Stein exhausted his administrative remedies for certain investigation requests he sent
to OPM.
As a threshold matter, the parties disagree about whether Stein exhausted his
administrative remedies for thirteen of the fifteen investigation requests he sent to OPM—ten
resulting in “no records” responses and three for which NBIB withheld records in full. (Defs.
MSJ at 15; Pl. Opp. at 10–11.) Stein argues that the response letters he received from NBIB
were only interim responses, noting that the NBIB e-mails that accompanied the letters referred
to the agency’s response as “interim,” and that each letter stated that another OPM FOIA office
would perform an additional search. (Pl. Opp. at 10–11.) This, he argues, shows that NBIB’s
responses did not obligate him to exhaust his administrative remedies before filing suit. (Id. at
11.) NBIB, by contrast, argues that the letters constituted “final, appealable determinations” in
response to Stein’s requests that had to be appealed within 90 days. (Defs. MSJ at 15.)
“A response is sufficient for purposes of requiring an administrative appeal if it includes:
the agency’s determination of whether or not to comply with the request; the reasons for its
decision; and notice of the right of the requester to appeal to the head of the agency if the initial
agency decision is adverse.” Oglesby, 920 F.2d at 65 (citing 5 U.S.C. § 552(a)(6)(A)(i)). “[I]f
30
there is a genuine dispute of material fact on the exhaustion issue, a court may refuse to grant
summary judgment for the agency.” Pinson v. United States Dep’t of Justice, 61 F. Supp. 3d
164, 175 (D.D.C. 2015) (citing Jones v. United States Dep’t of Justice, 576 F. Supp. 2d 64, 67
(D.D.C. 2008)).
Viewing the facts in the light most favorable to Stein, the court finds there is a genuine
dispute of material fact regarding whether NBIB’s responses to the thirteen investigation
requests were adverse determinations that triggered the administrative appeal requirement.
While the cover e-mails from NBIB classified the responses as “final,” the simultaneous use of
the word “interim,” combined with the statement that the OPM FOIA office would continue
searching for responsive materials, could cause a reasonable factfinder to conclude that OPM’s
response was not a sufficiently clear “determination of whether or not to comply with the
request.” Oglesby, 920 F.2d at 65. At least one other court has held that an agency’s
characterization of a FOIA response as “interim” does not give rise to the administrative appeal
requirement, even when the response notifies the requester of his right to appeal. Rosenfeld v.
United States Dep’t of Justice, No. 07-3240, 2008 U.S. Dist. LEXIS 64620, at **23–24 (N.D.
Cal. Aug. 22, 2008) (“Indeed, a FOIA claimant cannot be expected to assess the adequacy of a
search that is not yet final.”). While the formal letters from NBIB informed Stein of his right to
appeal NBIB’s responses, Defendant does not cite any agency regulations suggesting such notice
is enough to transform a response into a final determination for which an administrative appeal is
necessary.
Because there is a genuine disputed issue of material fact regarding whether NBIB’s
response letters triggered the administrative exhaustion requirement, the court will deny OPM’s
motion for summary judgment on this issue.
31
2. NBIB reasonably interpreted the scope of the investigation requests.
NBIB interpreted Stein’s fifteen inquiries as “requests for records created by NBIB in
conducting investigations on the subjects referenced and/or communications between NBIB and
any other agency conducting investigations on the subjects.” (Watters Decl. ¶ 12.) As with the
other agency interpretations Stein challenges as too narrow, NBIB concluded that the requests
did not encompass the information or data compiled during the background investigations. For
the reasons previously set forth, the court finds that NBIB’s interpretation was reasonable. As
this is Stein’s only challenge to the adequacy of OPM’s search, (id.), the court will grant OPM’s
motion for summary judgment on this issue.
3. OPM has not shown that it properly withheld all contested records pursuant to
Exemptions 6 and 7(C).
The nine pages that OPM withheld in full were responsive to Stein’s investigation
requests for Mattis (five pages), Flynn (two pages), and Ross (two pages). (Watters Decl. ¶ 24.)
All are “Accountings of Certain Disclosures” maintained pursuant to 5 U.S.C. § 552a(c)
(“Privacy Act of 1974”), containing personally identifiable records for all three individuals, the
“date, nature, and purpose of each disclosure of information” maintained on each, and “the name
and address of the person or agency to whom the disclosure was made.” (Id. ¶¶ 27, 30, 33.)
“These Disclosures are generated upon agencies accessing the records of individuals maintained
in the PIPS [Personnel Investigations Processing System] for investigative information on the
subject,” which “include such information as the status of ongoing investigations, and the
investigative history of the subject.” (Id.)
Exemption 7(C) permits the withholding of records that “could reasonably be expected to
constitute an unwarranted invasion of personal privacy,” provided such records are “compiled
for law enforcement purposes.” 5 U.S.C. § 552(b)(7)(C). Once an agency makes a threshold
32
showing that it compiled the materials at issue for a law enforcement purpose, Schoenman v.
FBI, 575 F. Supp. 2d 166, 174 (D.D.C. 2008), the court, as it does for Exemption 6, balances
privacy interests against the public interest in disclosure. United States Dep’t of Justice v.
Reporters Comm. for Freedom of Press, 489 U.S. 749, 756 (1989). The balancing test tilts
slightly towards nondisclosure under Exemption 7(C), which is broader than Exemption 6 in its
protection of privacy. Id. at 756 (recognizing that Exemption 7(C) protects against disclosures
that would result in an “unwarranted” invasion of privacy, while Exemption 6 imposes the added
requirement that the invasion of privacy be “clearly unwarranted”).
The Watters Declaration establishes that NBIB compiled the documents in question for a
law enforcement purpose. Recognizing that “[t]he principal purpose of a background
investigation is to ensure that a prospective employee has not broken the law or engaged in other
conduct making her ineligible for the position,” the D.C. Circuit held in Mittleman v. Office of
Pers. Mgmt., 76 F.3d 1240, 1243 (D.C. Cir. 1996), that “information obtained during OPM’s
background investigation was compiled for law enforcement purposes.” Id. at 1241. Similarly,
the documents withheld by NBIB relate to the security clearance investigations for Mattis, Flynn,
and Ross (see Watters Decl. ¶¶ 12, 25, 27, 30, 33), and therefore satisfy Exemption 7(C)’s
threshold requirement.
The court next balances Stein’s asserted public interest in disclosure of the responsive
records against the privacy interests in protecting them to determine if disclosure would result in
an “unwarranted” privacy violation. Davis v. United States Dep’t of Justice, 968 F.2d 1276,
1282 (D.C. Cir. 1992). As with Exemption 6 claims, “the only public interest relevant for
purposes of Exemption 7(C) is one that focuses on the citizens’ right to be informed about what
their government is up to.” Id. In other words, there is a public interest in the disclosure of
33
official information that ‘sheds light on an agency’s performance of its statutory duties.” Beck v.
United States Dep’t of Justice, 997 F.2d 1489, 1492–93 (quoting Reporters Committee, 489 U.S.
at 773). Because records that “reveal[] little or nothing about an agency’s own conduct” do not
advance FOIA’s statutory purpose, courts do not recognize a public interest in the disclosure of
such information. Beck, 997 F.2d at 1493.
With respect to the personal identifying information contained in the documents, the
balancing test favors OPM. For each of the three requests at issue, OPM properly determined
that the personal identifying materials do not implicate an overriding public interest because they
“do not contain information on the process or the risks associated with granting an individual a
security clearance” and thus would not convey information about the agency’s conduct. (Watters
Decl. ¶¶ 28.) The D.C. Circuit has held that such information is “generally exempt from
disclosure [under Exemption 7(C)] except, for example, where they are required to confirm or
refute allegations of improper government activity.” Sussman v. United States Marshals Serv.,
494 F.3d 1106, 1115–16 (D.C. Cir. 2007). Stein does not suggest that disclosing this
information is “required to confirm or refute allegations of improper government activity.” Id.
The portions of the withheld records noting the “date, nature and purpose of each
disclosure” present a closer case. (Watters Decl. ¶¶ 27, 30, 33.) Without additional details about
these records, the court lacks enough information to determine whether the public interest in this
information outweighs the personal privacy interests in nondisclosure.
It is similarly unclear whether releasing details of the “date, nature and purpose of each
disclosure” would satisfy Exemption 6’s threshold requirement that records contain “personnel
. . . [or] similar files.” 5 U.S.C. § 552(b)(6). And even if it did, the court cannot conduct the
34
necessary balancing test without more specific factual support for withholding the information,
and the privacy interests therein.
Therefore, the court will deny summary judgment to both OPM and Stein on this
question, and order OPM to submit a supplemental declaration to more fully explain why the
requested information is exempt under Exemption 6 and/or Exemption 7(C). The court will
defer ruling on segregability until it has reviewed the supplemental declaration.
G. ODNI
Stein does not dispute the adequacy of ODNI’s search for records responsive to his
briefing request or its withholding of information. (Pl. Opp. at 7–8; Defs. Reply at 5.) He does,
however, raise three challenges to ODNI’s response to his investigation requests, asserting that:
(1) the agency’s interpretation of his investigation request(s) was too narrow; (2) given the
agency’s interpretation of the requests, it improperly determined that a search of its records
systems would be futile; and (3) ODNI officials withheld some responsive information located
by CIA that was not covered by a FOIA exemption.
1. ODNI reasonably interpreted Stein’s investigation requests and properly determined
that a search of agency records systems would be futile.
Because Stein’s challenge to ODNI’s decision not to search for information responsive to
his investigation requests is “closely tied to the [interpretation] issue,” the court considers the
two questions together. (Pl. Opp. at 20.) To begin, the court finds that ODNI, like the other
agencies, reasonably interpreted the investigation requests to encompass records about the
process of conducting a security clearance investigation, and not data or results from the
investigations. (Gaviria Decl. ¶¶ 41–42 (focusing on the “steps taken” to investigate or authorize
the individuals for security clearances).) Based on its interpretation of the request, ODNI
concluded that it “was not required to conduct a search for responsive records because it does not
35
conduct or authorize individuals for access to classified information.” (Id. ¶ 44; see also id. ¶ 39
(explaining that a search of its databases was unnecessary because “ODNI is not involved in the
process of actually investigating or authorizing individuals for access to classified national
security information” and thus would not possess responsive records).)
Taken out of context, this reading of the requests appears to conflict with the directive
that an agency “select the interpretation that would likely yield the greatest number of responsive
documents,” Rodriguez, 236 F. Supp. 3d at 36, especially given that CIA discovered responsive
records in the ODNI databases. (Gaviria Decl. ¶ 44.) However, a closer look at the record
shows that ODNI’s decision not to search was reasonable. The Gaviria Declaration establishes
that the Scattered Castles and Signal Flags databases are repositories of security data on
individuals, and do not contain records of agency processes for security clearance investigations
and/or authorizations. (Id. ¶¶ 41–42.) With respect to Scattered Castles, Gaviria explains that
the database “does not . . . record the steps taken to investigate or authorize individuals for access
to classified information. Rather, Scattered Castles is a database that consolidates personnel
security records within the IC [Intelligence Community], which serves to support clearance and
access reciprocity and act as a single source to determine who has access to classified
information.” (Gaviria Decl. ¶ 41.) Gaviria also states that “Signal Flags also does not contain
records about the steps taken to investigate or authorize individuals for access to classified
information” and that “the information gathered by the individual IC agencies in the process of
determining eligibility for clearance . . . is maintained separately by those agencies, and is not
maintained in the Scattered Castles or Signal Flags databases.” (Id. ¶ 42.)
In other words, while the databases contain information that other agencies may use when
conducting security clearance investigations, ODNI “simply maintains [the] shared databases.”
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(Id. ¶ 44.) Given this limited role, the court agrees that ODNI “would have had no way of
knowing what steps, if any, the CIA or any other agency took to investigate or authorize the
individuals for access to classified information.” (Id.) The kind of information that CIA referred
to ODNI for processing supports this finding; the records consisted of “screenshots from the
ODNI databases that CIA presumably searched in the process of approving the individuals’ [sic]
for access to classified information.” (Id. ¶ 45.) This shows that any responsive records in
Scattered Castles and Signal Flags are tied to an investigating agency’s search of the databases,
such as the CIA’s search here. On the other hand, ODNI is not involved in security clearance
investigations or adjudications, and therefore a search of its databases would only reveal data
that falls outside of the request’s scope. Thus, ODNI did not “read [Stein’s] request so strictly
that the requester is denied information the agency well knows exists in its files.” Hemenway,
601 F. Supp. at 1005.
Because the responsiveness of material in ODNI’s databases depends on whether an
agency used them during an investigation, ODNI has shown that it “does not maintain any
records” responsive to Stein’s investigation requests. Cunningham, 40 F. Supp. 3d at 85.
Accordingly, the court finds that ODNI conducted an adequate search for records responsive to
the requests.
2. ODNI properly withheld records pursuant to Exemption 6.
Citing Exemption 6, ODNI withheld 31 pages of records referred by CIA. (Gaviria Decl.
¶ 47.) The withheld pages are screenshots from the Scattered Castles and Signal Flags databases
showing whether an individual had a security clearance at the time CIA searched the database.
(Id. ¶¶ 49–51.) Stein disputes ODNI’s assertion that the question of whether someone has a
37
security clearance when the database is searched implicates a “substantial privacy interest” and
that there is a “minimal public interest in disclosure.” (Gaviria Decl. ¶ 49.)
Records of an individual’s security clearance satisfy Exemption 6’s threshold
requirement that a record contain “personnel . . . files [or] similar files.” 5 U.S.C. § 552(b)(6);
Hunt v. United States Marine Corps., 935 F. Supp. 46, 54–55 (D.D.C. 1996) (finding Exemption
6 applied to records that included, inter alia, information about security clearances); see also
United States Dep’t of State v. Washington Post Co., 456 U.S. 595, 602 (1982) (holding that all
information that “applies to a particular individual” meets the threshold requirement for
Exemption 6). Such records also implicate a “substantial privacy interest” because they “reveal
significant personal data” about the individual. Hunt, 935 F. Supp. at 54 (“[T]here can be no
reasonable dispute that [an individual] has a privacy interest in maintaining their
confidentiality.”)
The court must also weigh the privacy interests in the records against the public’s interest
in disclosure to determine if the invasion of privacy is “clearly unwarranted.” 5 U.S.C.
§ 552(b)(6); see also Painting & Drywall Work Pres. Fund, 936 F.2d at 1302. Here again, the
only relevant public interest is the extent to which the records would “contribut[e] significantly
to public understanding of the operations or activities of the government.” United States Dep’t
of Def., 510 U.S. at 495 (emphasis in original). Here, the public has no overriding interest in
disclosure with respect to ODNI. Because ODNI was not involved in conducting the
background investigations, (Gaviria Decl. ¶ 44), it took no investigative “steps” that the records
could reveal. Neither would disclosure of the 31 pages provide information on CIA operations
that outweighs the “substantial privacy interest[s]” in the records. Hunt, 935 F. Supp. at 54. The
screenshots of the databases merely reveal whether the individuals had security clearances when
38
CIA searched the database. (ECF No. 22-8, Ex. B (“ODNI Letter”).) While a search of the
database is a “step[] taken” to conduct a security clearance investigation, the screenshots offer
very limited data points on the investigative process itself. The public interest in this information
does not overcome the significant invasion of privacy inherent in disclosing the data on the
individuals’ security clearances.
For the reasons above, the court concludes that ODNI properly withheld the 31
screenshots it received via referral from CIA.
3. ODNI’s declaration fails to support its conclusion regarding segregability.
FOIA requires an agency to produce “[a]ny reasonably segregable portion” of a record
that is not exempt from disclosure. 5 U.S.C. § 552(b). See Mead Data Cent., Inc. v. United
States Dep’t of the Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977) (“The focus of FOIA is
information, not documents, and an agency cannot justify withholding an entire document simply
by showing that it contains some exempt material.”) More specifically, “[i]t has long been a rule
in this Circuit that non-exempt portions of a document must be disclosed unless they are
inextricably intertwined with exempt portions.” Id. With respect to segregability, “[t]he
[agency’s] conclusion on a matter of law is not sufficient support for a court to conclude that the
self-serving conclusion is the correct one.” Stolt-Nielsen Transp. Grp., Ltd. v. United States, 534
F.3d 728, 734 (D.C. Cir. 2008). The agency “should [] describe what proportion of the
information in a document is non-exempt and how that material is dispersed throughout the
document,” to ensure that “both litigants and judges will be better-positioned to test the validity
of the agency’s claim that the non-exempt material is not segregable.”) Mead Data Cent., 566
F.2d at 261.
39
ODNI provides only the brief, conclusory statement that “[n]o information in this record
could be segregated and released to Plaintiff.” (Gaviria Decl. ¶ 51.) While it is admittedly
unlikely that screenshots of the databases contain any non-exempt, reasonably segregable
information, it is nonetheless possible, and the court cannot accept such a cursory “conclusion on
a matter of law.” Stolt-Nielsen Transp. Grp., 534 F.3d at 734. Out of an abundance of caution,
the court will deny summary judgment to ODNI and direct the agency to submit a supplemental
declaration describing in more detail the agency’s review for reasonably segregable information.
H. Education
Education concluded that it “would not have agency records regarding any steps taken to
investigate or authorize Secretary DeVos for access to classified information” because it does not
conduct background investigations for cabinet secretaries or nominees for the position. (Senecal
Decl. ¶¶ 7–8.) Stein attempts to distinguish this case from those in which courts upheld agency
refusals to search because the agency played no role in the activity that was the subject of the
FOIA request. (Pl. Opp. at 20–21); see, e.g., MacLeod v. United States Dep’t of Homeland Sec.,
No. 15-1792, 2017 U.S. Dist. LEXIS 153651 (D.D.C. Sept. 21, 2017) (refusing to search for
records regarding issuance of a diplomatic visa because the agency played no role in issuing such
visas); Jenkins v. D.O.J., 263 F. Supp. 3d 231 (D.D.C. 2017) (upholding agency decision not to
search for records on state criminal cases because the agency had no involvement in the relevant
cases). While Stein concedes that this case “is arguably close[] to the[se] examples,” he asserts
that it is nonetheless distinguishable because, unlike the agencies in MacLeod and Jenkins,
“Education has a definite need to discuss the question of the Secretary of Education’s security
clearance with the agencies performing the investigation and adjudication.” (Pl. Opp. at 21.)
40
The declaration submitted by Lisa Senecal, Education’s Director of Personnel Security
and Emergency Preparedness, fails to “show beyond material doubt . . . that [Education] has
conducted a search reasonably calculated to uncover all relevant documents.” Weisberg, 705
F.2d at 1351. Senecal’s brief declaration is conclusory; it states that Ronald Luczak, Education’s
former Office of Security, Facilities, and Logistics Director, who “had knowledge about
background investigations due to his position,” informed Education’s FOIA Service Center that
the agency had no records responsive to Stein’s request. (Senecal Decl. ¶¶ 4–5, 8.) But Luczak,
who no longer works in the Office of Security, Facilities, and Logistics, did not prepare the
declaration. (Id. ¶ 6.) Unlike the declarant in American-Arab Anti-Discrimination Committee,
Senecal does not provide enough information from which the court can “presume[]” that she was
“able to familiarize [herself]” with the agency’s response to the request, which courts have
required when a refusal to search is based on a conclusory declaration. Am.-Arab Anti-
Discrimination Comm., 516 F. Supp. 2d at 88.
Senecal’s lack of personal knowledge about background investigations, combined with
the reasonable possibility that Education possesses responsive records of discussions with
investigating agencies about the processing of Secretary DeVos’s security clearance, precludes
summary judgment for Education. The court will thus deny Education’s motion, deny Stein’s
cross-motion, and direct the agency to submit another declaration more specifically explaining
the basis for its determination that a search for responsive records would be futile.
I. State
Stein does not challenge the adequacy of State’s searches in response to his investigation
requests. (Pl. Opp. at 8). He only alleges that State improperly withheld a single responsive
record, Document No. 17. (Id. at 27 n.12.) State concluded that this document, an “adjudicative
41
analysis worksheet” compiled for Rex Tillerson’s background investigation, was protected from
disclosure pursuant to Exemptions 6 and 7(C), and withheld it in full. (ECF No. 22-12, Ex. 1
(“State Vaughn Index”) at Doc. No. 17.) The worksheet “contains information regarding
whether Secretary Tillerson’s background investigation revealed any issues of adjudicative
concern in the determination of eligibility for access to classified information.” (Id.) State, in its
Vaughn index entry, asserts that “the release of information gathered during the course of
Secretary Tillerson’s background investigation could subject him to unwanted attention or
harassment, interests that would outweigh any minimal public interest in weighing these specific
details.” (Id.)
State’s explanation for withholding Document No. 17 is inadequate for two reasons.
First, it fails to demonstrate that disclosure of this information would constitute an unwarranted
invasion of Tillerson’s privacy. 11 A comparison with Assassination Archives & Research
Center, Inc. v. CIA, 720 F. Supp. 217 (D.D.C. 1989), aff’d, No. 89-5414, 1990 WL 123924 (D.C.
Cir. Aug. 13, 1990), supports this conclusion. There, the court found that Exemption 6 protected
from disclosure “a summary of personal information contained in a security file, compiled for
purposes of determining [a person’s] suitability for access to classified information.” Id. at 221.
The agency’s Vaughn index entry in Assassination Archives described why the information
would violate the subject’s personal privacy—namely, “by revealing details of their actions and
whereabouts.” Id. Here, State offers no comparable description of which “details regarding the
adjudication of [Tillerson’s] background investigation” support its conclusory statement that
11
Stein does not appear to challenge State’s withholding Tillerson’s date and place of birth in
Document No. 17, or withholding the names of Bureau of Diplomatic Security employees who
worked on the background investigation. See Pl. Opp. at 27. This information would be exempt
from disclosure under Exemptions 6 and 7(C).
42
disclosure “could subject him to unwanted attention or harassment.” (State Vaughn Index at
Doc. No. 17.) State has thus failed to present sufficient factual evidence “explain[ing] the
specific reason for nondisclosure.” Milton, 783 F. Supp. 2d at 58.
Second, Defendants’ claim that Document No. 17 “would [not] shed any light on the
activities of government” is unavailing. The relevant public interest lies in revealing information
about State’s participation in the security clearance process for Tillerson. It stretches logic to
claim that a document containing “information regarding whether Secretary Tillerson’s
background investigation revealed any issues of adjudicative concern” will not shed light on the
activities of the adjudicating agency. (ECF No. 22-12, Ex. 1 (“State Vaughn Index”) at Doc. No.
17.) Without evidence that such details would implicate privacy interests, it is quite possible that
some of the information in Document No. 17 would not be exempt from disclosure. See Mays v.
Drug Enf’t Admin., 234 F.3d 1324, 1328 (D.C. Cir. 2000) (holding that “Exemption 7(C) does
not necessarily cover all ‘investigative details’—a category presumably distinct from, and
potentially far broader than the ‘names of individuals/personal information’”).
As it stands, the court does not have enough information to fully determine the privacy
interests in Document No. 17 and weigh them against the public interest in disclosure.
Accordingly, the court will deny State’s motion, deny Stein’s motion, and direct the agency to
submit a supplemental Vaughn index and/or declaration to address the current deficiencies. The
court will withhold ruling on State’s segregability determinations with respect to Document No.
17, given that State’s determinations may change as a result of the court’s ruling on the
withholding.
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IV. CONCLUSION
For the foregoing reasons, Defendants’ motion for summary judgment will be
GRANTED in part and DENIED in part, and Plaintiff’s cross-motion for partial summary
judgment will be GRANTED in part and DENIED in part.
A corresponding Order will follow shortly.
Date: April 14, 2020
Tanya S. Chutkan
TANYA S. CHUTKAN
United States District Judge
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