Amiri v. National Science Foundation

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ALI AMIRI,
Plaintiff,
v. Case No. 1:20-cv-02006 (TNM)
NATIONAL SCIENCE FOUNDATION,
Defendant.
MEMORANDUM OPINION
Ali Amiri filed a request under the Freedom of Information Act (“FOIA”), 5 U.S.C.
§ 552, for all records pertaining to him and to one of the National Science Foundation’s (“NSF”)
grant awards. NSF responded, but withheld certain information under two FOIA Exemptions.
Proceeding pro se, Amiri alleges that those withholdings violate FOIA. See Complaint
(“Compl.”) ¶ 1, ECF No. 1.
Before the Court are NSF’s Motion for Summary Judgment 1 (“Def. MSJ”) and Amiri’s
Cross-Motion for Summary Judgment (“Pl. MSJ”). See ECF Nos. 18, 19. NSF argues that it
conducted an adequate search for responsive documents, properly withheld responsive
information under applicable exemptions, and satisfied its segregability obligations under FOIA.
Amiri responds that NSF did not conduct an adequate search and that NSF’s withholdings violate
FOIA.
1
The Motion for Summary Judgment appears twice on the docket because the original, ECF No.
14, contained some of Amiri’s personal information. The Court thus directed NSF to refile the
Motion redacted or sealed. See Minute Order April 1, 2020; ECF No. 17. NSF complied and
filed a redacted version. See ECF No. 18.
Also before the Court is NSF’s Motion to Seal (“MTS”) one of Amiri’s exhibits, ECF
No. 19-1. NSF argues that the exhibit contains personally identifiable information (“PII”) that
the agency inadvertently disclosed to Amiri. The Court temporarily placed the Exhibit under
seal pending resolution of NSF’s motion. See Minute Order dated May 10, 2021.
For the reasons explained below, the Court will grant NSF’s Motion for Summary
Judgment and deny Amiri’s Cross-Motion. It will also grant NSF’s Motion to Seal.
I.
This case involves a single FOIA request made by Amiri to NSF seeking all records
related to (1) himself, and (2) NSF Grant Award Number 1508680, titled “Transport and Carrier
Dynamics Near the Metal-Insulator Transition in VO2.” Declaration of Justin Guz ¶ 7 (“Guz
Decl.”), ECF No. 14-1; Def. MSJ Ex. 2, ECF No. 14-3 (copy of the FOIA Request). 2 Amiri
requested “any and all of the reports, recordings, and database entries and updates, etc.” after
2012 related to him and the grant project. See MSJ Ex. 2.
Amiri claims that he worked as a graduate student on Grant Award No. 1508680. Defs.
MSJ Ex. 2; see Pl. MSJ Statement of Facts ¶ 2 (“Pl. MSJ Stmt.), ECF No. 19. 3 NSF issued that
award in September 2015, with a planned end date in 2018. But because of extensions, the
project ultimately ended in 2020. See Defendant’s Replies to Plaintiff’s Response to Statement
of Material Facts ¶ 12 (“Def.’s MSJ Resp.), ECF No. 27-1; see Declaration of Sandra Evans
¶¶ 7–12 (“Evans Decl.”), ECF No. 27-2. Amiri stopped work on the project sometime in 2017 or
2018. See Def. MSJ Stmt. Resp. ¶¶ 12, 31; Pl. MSJ Stmt. ¶¶ 5–6.
2
All page citations refer to the pagination generated by the Court’s CM/ECF system.
3
Amiri included in his Motion for Summary Judgment his own Statement of Facts (“Pl. MSJ
Stmt.”) and a Response to NSF’s Statement of Facts (“Pl. MSJ Stmt. Resp.”). The Court cites
those Statements where applicable, although they share an ECF document number with Amiri’s
Motion for Summary Judgment.
2
Amiri sent his request at a time when NSF had a backlog of FOIA requests. See Guz
Decl. ¶ 10. NSF “generally handles this backlog by putting requests into a ‘simple track’ or
‘complex track’ depending on the complexity of the request and the time that it will take to
search for and review responsive records. The NSF FOIA Office then responds to FOIA
requests in each track on a first in/first out basis.” Id. The FOIA Office reviewed Amiri’s
Request and placed it in the complex track. See id. ¶ 11.
NSF’s Division of Information Services (“DIS”) searched the agency’s records using
Amiri’s first name, last name, and email address as search terms. See id. ¶ 18. The search
revealed ten grant award numbers containing documents with at least one search term. NSF’s
FOIA staff reviewed those records and determined that nine award numbers had no association
with Amiri or his request. See id. But one award number matched Grant Award No. 1508680.
See id. DIS also conducted an “index” search for any file names or file paths that used Amiri’s
first and last name or email address as a folder title. See id. ¶ 19. That search yielded nothing
relevant. See id.NSF then halted its processing of Amiri’s request. See id. ¶¶ 9, 20. Around the same
time, COVID-19 forced all NSF staff, including the FOIA Office, to work remotely. See id. ¶ 9.
Although the FOIA staff continued to process requests, processing times lagged. See id. ¶ 12.
Because of existing backlogs and the shift to remote work, NSF did not process Amiri’s request
within the statutorily required 20 days. See id. ¶ 13; 5 U.S.C. § 552(a)(6)(A).
Frustrated by the delays, Amiri sued. See Compl. ¶¶ 17–23. NSF resumed the search for
responsive records soon after. See Guz Decl. ¶ 21. The agency identified three Program
3
Officers who had worked on Grant Award No. 1508680. 4 One officer no longer worked at NSF.
See id. The other two still worked there but found nothing after searching their emails. See id. ¶
22.
As for the departed Program Officer, NSF could not retrieve his emails because they had
been deleted in accordance with agency policy. But NSF stores certain emails in “eJacket,” the
agency’s official recordkeeping system for all documents relating to a specific award. See id. ¶
24. These documents generally include “the initial grant proposal, review materials, email
correspondence, internal agency program notes, and annual/final reports.” Id. NSF searched the
eJacket system for Grant Award No. 1508680 and located a file containing 549 pages of
responsive records. See id. ¶¶ 24, 26. The agency reviewed those documents and determined
that Exemptions 5 and 6 of FOIA protected some material from disclosure. See 5 U.S.C.
§ 552(b)(5)-(6); id. ¶ 27.
In October 2020, NSF sent its final response to Amiri at his last known address. See Guz
Decl. ¶ 15; Def. MSJ Ex. 4, ECF No. 5 (copy of October 27 Response); Guz Decl. ¶¶ 24, 26.
This mailing apparently went to the wrong address. See Pl. MSJ Stmt. ¶ 10–13; Guz. Decl. ¶ 15–
16. So NSF collected Amiri’s new address and resent its final response in November, this time
in paper format via FedEx. See Guz Decl. ¶ 16. Amiri continued to say that he had not received
the whole mailing. See id. ¶¶ 24,26; Pl. MSJ Stmt. Resp. ¶ 25; Pl. MSJ Stmt. ¶¶ 15–17. In
December, NSF sent another copy to Amiri via FedEx. See Guz Decl. ¶ 17; Def. MSJ Ex. 5
(copy of Dec. 10 Response). 5
4
Program Officers are visiting scientists who stay with the agency for about three years to
manage grant awards. See id.5
In the final letter, NSF also identified two harmless processing errors. See Def. MSJ Ex. 5.
First, NSF initially said that it had located 550 pages of responsive records, but the agency had
counted an email (Bates No. 169) twice. So NSF retrieved only 549 pages. Second, NSF
4
Amiri now challenges the adequacy of NSF’s search, some of NSF’s withholdings and
redactions, and whether NSF released all segregable information. See Pl. MSJ Stmt. Resp. ¶¶ 9–
10, 12–17, 20–22, 28–31. His briefs mainly allege that multiple NSF employees stole his
intellectual property and forced him off the project. Amiri also argues that NSF has designed its
withholdings to conceal multiple illegal activities that occurred on the project. See Pl. MSJ Stmt.
¶¶ 5–6, 29–31; Pl. MSJ Stmt. Resp. ¶¶ 22, 30–31; Pl. MSJ at 21-24; Plaintiff’s Reply to Motion
for Summary Judgment at 4, 7. ECF No. 30 (“Pl. Reply”).
II.
The agency bears the burden to show that its search and withholdings comply with FOIA,
and the Court reviews those determinations de novo. See 5 U.S.C. § 552(a)(4)(B); Mil. Audit
Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). “[T]he vast majority of FOIA cases can be
resolved on summary judgment.” Brayton v. Off. of U.S. Trade Rep., 641 F.3d 521, 527 (D.C.
Cir. 2011).
A court will grant summary judgment “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To defeat summary
judgment, the non-moving party must “designate specific facts showing that there is a genuine
issue for trial.” Id. at 324 (internal quotation marks omitted). The mere existence of a factual
dispute does not preclude summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247–48 (1986). A dispute is “genuine” only if a reasonable factfinder could find for the
originally asserted Exemption 6 for redactions on two pages of a “Panel Summary Review”
(Bates Nos. 85–86), but NSF did not, ultimately, protect any information on the second page.
Thus, the number of pages redacted under Exemption 6 totaled only 28, rather than the 29 pages
originally counted. Id.5
non-moving party; a fact is “material” only if it can affect the outcome of the litigation. Id. at
248. And a court must “view the facts and draw reasonable inferences in the light most
favorable to” the non-moving party. Scott v. Harris, 550 U.S. 372, 378 (2007).
In FOIA cases, “the agency’s identification or retrieval procedure” must be “genuinely in
issue” to preclude summary judgment. Weisberg v. Dep’t of Just., 627 F.2d 365, 371 n.54 (D.C.
Cir. 1980). The agency may rely on affidavits or declarations to obtain summary judgment. See
Judicial Watch v. U.S. Secret Serv., 726 F.3d 208, 215 (D.C. Cir. 2013). Those documents
receive a presumption of good faith that only non-speculative evidence can rebut. See SafeCard
Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991). But any agency declaration must
contain “reasonable specificity of detail” and must not be disputed by contradictory evidence in
the record. Judicial Watch, 726 F.3d at 215.
Because Amiri is pro se, the Court will “liberally construe” his filings. Erickson v.
Pardus, 551 U.S. 89, 94 (2007). That accommodation does not, however, allow him “to ignore
the Federal Rules of Civil Procedure.” Oviedo v. WMATA, 948 F.3d 386, 397 (D.C. Cir. 2020).
III.
A.
Amiri challenges the adequacy of NSF’s search. NSF must show that it conducted a
search reasonably calculated to uncover all relevant documents. See Weisberg v. Dep’t of Just.,
745 F.2d 1476, 1485 (D.C. Cir. 1984). The Court measures the adequacy of an agency’s search
under a standard of reasonableness, considering the surrounding circumstances. See Truitt v.
Dep’t of State, 897 F.2d 540, 542 (D.C. Cir. 1990). Searches for responsive records must
employ “methods which can be reasonably expected to produce the information requested.”
Oglesby v. Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir. 1990); see Campbell v. Dep’t of Just., 164
6
F.3d 20, 27 (D.C. Cir. 1998). The agency can establish the adequacy of its search via affidavits
or declarations that “explain in reasonable detail the scope and method of the search.” See
Morley v. CIA, 508 F.3d 1108, 1122 (D.C. Cir. 2007) (cleaned up). Once the agency has
provided a “reasonably detailed” declaration, the plaintiff must produce “countervailing
evidence” suggesting that a genuine dispute of material fact exists as to the search’s adequacy.
Id. at 1116.
Here, NSF’s declarations detail the scope of its searches. NSF’s main declaration
identifies the record systems and locations searched, the personnel consulted during the search,
why the relevant information would be in those locations and systems, and the search terms used.
See Guz Decl. ¶¶ 18–29. The declaration also thoroughly explains the methodology of each
search. See id. And the declarant, Justin Guz, oversaw the searches and therefore has actual
personal knowledge. Id. ¶ 3.
Amiri must give a reason to doubt the good-faith presumption afforded to this
declaration. See SafeCard Servs., 926 F.2d at 1200. He does not. He instead responds that
NSF’s search was inadequate because the final release did not include “reports from program
managers,” “notes and records on the progress of the research,” “communications with Principal
Investigator[s] and other members of the research team,” “unapproved” annual reports, and any
communications and edits prompting changes in the Annual Reports, specifically the “third”
Annual Report from May 2019. Pl. MSJ Stmt. ¶¶ 24–28; Pl. MSJ Stmt. Resp. ¶ 20; Pl. Reply at
2; Plaintiff’s Answer to Vaughn Index at 18 (“Pl. VI Resp.”), ECF No. 19-1. 6
6
Amiri filed his Vaughn Index response as Exhibit B to his Motion for Summary Judgment. See
ECF No. 19-1 at 15. But the Clerk has filed both Exhibits A and B as one ECF filing, so they
share an ECF document number.
7
NSF has fully rebutted this argument. According to NSF’s supplemental declaration,
“NSF does not receive actual research data or results from its awardees.” Evans Decl. ¶ 14.
Although the agency “does receive annual reports[] from Senior Personnel,” the agency released
to Amiri all three responsive Annual Reports. See id. ¶¶ 14–15 (citing Bates 181–91, 251–62,
292–305). Amiri responds that NSF was still reviewing the third Annual Report at the time of
release. See Pl. Reply at 2. But Amiri received the most recent version available. See Evans
Decl. ¶ 15 (citing Bates Nos. 292–305). The agency also sent the appropriate correspondence
folder from eJacket, which contained NSF’s written communications with the Principal
Investigators and others. See id. ¶ 16; see Vaughn Index at 13–16 (“VI”); ECF No. 14-2.
Amiri contends that a more adequate search would have unearthed more emails. See Pl.
MSJ Stmt. Resp. ¶ 20. Yet NSF’s email policy mandates the deletion of “transitory email” after
180 days, and email from “non-supervisory personnel, which includes Program Officers,” after
three years. See Defendant’s Reply to Opposition to Motion for Summary Judgment at 4–5, ECF
No. 28 (“Def. Reply”); Guz Decl. ¶ 23. 7 Thus, only a limited number of emails exists on
eJacket. The agency fully searched that database and, despite agency policy, directed two
Program Officers to manually search their individual email accounts for responsive records. See
Guz Decl. ¶¶ 18–19, 23.
Amiri also suggests that, because DIS’s search-term and index searches did not yield any
documents, the searches were somehow tainted by agency fraud. See Pl. MSJ at 1–2; Pl. MSJ
Stmt. ¶¶ 29–31. This is speculation. Such bare allegations cannot overcome the presumption of
good faith given to agency declarations. See Exxon Corp. v. FTC, 663 F.2d 120, 126–27 (D.C.
7
See also https://www.nsf.gov/policies/records/pdf/GRS%205.2%20010.pdf (available copy of
the “Email Retention Policy”) (last visited Sept. 6, 2021).
8
Cir. 1980) (“[I]t is well settled that conclusory allegations unsupported by factual data will not
create a triable issue of fact.”). Nor does mere speculation that other documents should have
been found undermine an otherwise reasonable search. See SafeCard Servs., 926 F.2d at 1201.
Amiri also argues that he should have received investigations completed by the NSF
Inspector General (“OIG”). See Pl. MSJ Stmt. Resp. ¶ 20; Pl. MSJ at 2. But OIG operates
independently from NSF and “handles its own records and FOIA requests.” Evans Decl. ¶ 17
(citing 45 C.F.R. § 612.3). 8 NSF’s FOIA Office and staff have no access to OIG records. See id.More, Amiri never directed his FOIA Request to OIG. Id.; see Def. MSJ Ex. 2; Compl. Exs. D–
E; see also NSF Office of Inspector General FOIA Information (instructing that FOIA requests
to NSF OIG must be specifically descriptive, omitting any case names, individuals’ names, or
other identifiable information, and instead including only a date range or referencing a pinpoint
citation to the NSF OIG Semiannual Report to the Congress). The agency need not expand its
search beyond “the four corners” of Amiri’s request. Kowalczyk v. Dep’t of Just., 73 F.3d 386,
389 (D.C. Cir. 1996). Amiri appears to acknowledge this point, as he eventually filed a separate
FOIA request with OIG. See Pl. Reply at 11–12; see also Pl. Reply Ex. A, ECF No. 30-1, at 5
(copy of Amiri’s May 27, 2021 FOIA Request to NSF OIG) (“OIG FOIA Request”).
The agency conducted a full and thorough search. Amiri only speculates in response.
The Court thus finds that NSF conducted a reasonable search under the circumstances.
B.
In FOIA cases, agencies typically provide their justifications for withholding information
in a Vaughn index. See Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973). The Index “permit[s]
8
See also “NSF Office of Inspector General FOIA Information” at
https://www.nsf.gov/oig/foia.jsp (“[R]equests for OIG records are handled independently by the
OIG”) (last visited Sept. 10, 2021).
9
adequate adversary testing of the agency’s claimed right to an exemption.” Nat’l Treasury Emps.
Union v. U.S. Customs Serv., 802 F.2d 525, 527 n.9 (D.C. Cir. 1986). The Index thus must
contain “an adequate description of the records” and “a plain statement of the exemptions relied
upon.” Id.NSF’s Index meets that standard. The Index includes for each withheld record (1) a
description of the record, (2) the corresponding Bates number, (3) a description and reasons for
the redaction, and (4) the FOIA Exemption applied. See generally VI; see also Guz Decl. ¶¶ 6,
30–32. For example, the Vaughn entry for Bates No. 180, “Post Award - Budget document
showing specific salary and allocation of person-months per year committed to award 1508680
by senior personnel, students, and administrative staff” notes that the agency redacted, under
Exemption 6, “amounts listed on a proposal budget page that show salary amounts and person-
months worked for senior personnel, students, and administrative staff working on award
1508680.” The entry then justifies application of Exemption 6, noting that “[t]hese individuals
have a privacy interest in their salaries and work schedules not being publicly disclosed,” and
that “[t]his information does not shed light on the operations of NSF.” VI at 16.
Given the level of detail and organization, the Vaughn Index and its supporting
documents “permit adequate adversary testing of the agency’s claimed right to” exemptions.
Nat’l Treasury Emps. Union, 802 F.2d at 527.
10
C.
Consider now the applicability of Exemptions 5 and 6 to the information withheld by
NSF. 9 The Court will discuss each exemption, followed by the aggregate segregability of the
released information
1.
Exemption 5 permits the withholding of “inter-agency or intra-agency memorandums or
letters which would not be available by law” to a party in litigation with the agency. 5 U.S.C.
§ 552(b)(5). Documents “normally privileged in the civil discovery context” need not be
produced under this exemption. NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975). As
relevant here, that includes documents falling under the common-law deliberative process
privilege, which protects records that “reflect[ ] advisory opinions, recommendations, and
deliberations comprising part of a process by which governmental decisions and policies are
formulated.” Id. at 150.
For the deliberative process privilege to apply, the withheld materials must be
“predecisional” and “deliberative.” Access Reps. v. Dep’t of Just., 926 F.2d 1192, 1194 (D.C.
Cir. 1991). Materials “generated before the agency’s final decision on the matter” are
predecisional. U.S. Fish and Wildlife Serv. v. Sierra Club, Inc., 141 S. Ct. 777, 786 (2021).
And materials that reflect “the give-and-take of the consultative process” through which the
9
Amiri originally raised claims under the Privacy Act, 5 U.S.C. § 552a. See Compl. ¶ 1. NSF
asserted Privacy Act Exemption (k)(5) in response, see 5 U.S.C. § 552a(k)(5), along with some
of the Exemption 6 redactions under FOIA, see Guz Decl. ¶ 43 n.1; Def. MSJ Ex. 4. NSF later
withdrew its reliance on the Privacy Act exemption. Amiri now challenges only the agency’s
FOIA exemptions and never mentions the Privacy Act except for one phrase in his Complaint.
He has thus forfeited any Privacy Act argument, and the Court need not consider it. See
Schneider v. Kissinger, 412 F.3d 190, 200 n.1 (D.C. Cir. 2005) (“It is not enough merely to
mention a possible arguments in the most skeletal way, leaving the court to do counsel’s
work . . . .”). Amiri’s pro se status does not require otherwise. See Oviedo, 948 F.3d at 397.
11
agency reaches a decision are deliberative. Coastal States Gas Corp. v. Dep’t of Energy, 617
F.2d 854, 866 (D.C. Cir. 1980).
Under Exemption 5, NSF withheld material on ten pages of documents. See Bates Nos.
87–92, 171–74. For eight of those pages, the agency withheld only part of each page. See Bates
Nos. 87–92, 173–74. That information reflected written summaries of a scientific review panel’s
(“Review Panel”) analysis and funding recommendations about a group of proposals, including
Grant Award No. 1508680. See Guz Decl. ¶ 34; VI at 12, 15. NSF withheld in full the other two
pages. Those documents contain a table listing proposals considered by the Review Panel,
including the proposal that led to Grant Award No. 1508680. See Guz Decl. ¶ 34; VI at 14. This
withheld document also includes the panel’s rankings and funding recommendations for each
proposal. Id.NSF’s declarations explain why it withheld this information. NSF considers each panel’s
rankings, analysis, and recommendations, but those submissions do not determine the agency’s
ultimate funding decision. See Guz Decl. ¶ 35. As a result, the content of these review panel
“discussions and deliberations are predecisional in nature.” Id. And these discussions constitute
the kind of “opinions, conclusions, and recommendations” protected by the privilege. Id. For
instance, Bates Nos. 173–74 include “recommendations of NFS program staff to [] NSF senior
staff regarding grant award funding.” Id. ¶ 36 (emphasis added).
Amiri offers little in response. He argues that the withheld material “shows the value of
the research proposed” and that “the value and ranking of scientific research should be public
information.” Pl. VI Resp. at 21–22. Not only does this argument not engage with the
requirements for the deliberative process privilege, relevant authority exempts similar scientific
material. See, e.g., Wash. Rsch. Project, Inc. v. Dep’t of Health, 504 F.2d 238, 249–52 (D.C.
12
Cir. 1974) (finding that deliberative process privilege covered documents reviewed by National
Institute of Mental Health personnel in grant application and approval process, who evaluated
facts based on their “personal perspective on the material being summarized,” which “is a
judgmental process, sometimes of the highest order”); Story of Stuff Project v. U.S. Forest Serv.,
345 F. Supp. 3d 79, 95–96 (D.D.C. 2018) (finding that documents containing ongoing
discussions among Forest Service interdisciplinary team assessing proposals about how to collect
data on waterways were properly exempted under deliberative process privilege); Ctr. for Bio.
Div. v. U.S. Fish and Wildlife Serv., No. 18-0342, 2021 WL 1209221 at *5–*7 (D.D.C. Mar. 31,
2021) (finding that draft biological evaluations were exempt under deliberative process privilege
because they contained “scientific facts and conclusions rather than” policies).
So too here. Funding recommendations “reflect the personal opinions of the writer rather
than the policy of the agency.” Coastal States, 617 F.2d at 866. The panels write those
recommendations before NSF makes a final funding decision. Thus, the recommendations are
“predicisional.” They also contain internal agency discussions reflecting a “give-and-take of the
consultative process” as to the viability of grant submissions. Petroleum Info. Corp. v. Dep’t of
Interior, 976 F.2d 1429, 1434 (D.C. Cir. 1992).
Amiri briefly argues that the recommendations from graduate students (unlike more
senior personnel) do not merit similar protection. But the privilege particularly applies to
recommendations from subordinates, regardless of their rank or academic degree. See Wolfe v.
Dep’t of Health & Human Srvs., 839 F.2d 768, 776 (D.C. Cir. 1988) (explaining that
subordinates should feel protected to “provide the decisionmaker with their uninhibited
recommendations without fear of later being subject to public ridicule and criticism”). The
Court therefore agrees that Exemption 5 covers the withheld material.
13
But NSF must clear one more hurdle. Even if withheld material properly falls under an
exemption, the agency must “reasonably foresee[] that disclosure would harm an interest
protected by” the deliberative process privilege. 5 U.S.C. § 552(a)(8)(A)(i)(I). This
foreseeable-harm requirement “imposes an independent and meaningful burden on agencies.”
Reporters Comm. for Freedom of the Press v. FBI, 3 F.4th 350, 369 (D.C. Cir. 2021). The
agency must “concretely explain how disclosure would—not could—adversely impair internal
deliberations.” Id. at 369–70. That explanation must be “focused and concrete” about why
disclosure will “in the specific context of the agency action at issue, actually impede” agency
deliberations going forward. Id. at 370. Perfunctory statements that disclosure would jeopardize
the free exchange of ideas within the agency will not suffice. See id. Nor will “generalized and
conclusory” statements that merely “recite the generic rationale for the deliberative process
privilege itself.” Id.NSF has met that burden here. 10 The agency broadly says that release of this information
“would discourage the expression of candid opinions and inhibit the full and frank exchange of
information” inside NSF. Id. But NSF also more precisely explains how disclosure would cause
harm. The withheld analyses and recommendations on grant proposals represent “just two sets
of information considered” when NSF makes grant decisions. Guz Decl. ¶ 51. And those
recommendations often differ from NSF’s ultimate decision on various grants. See id. So
disclosure of just the recommendations would confuse the public and cast doubt on the public
basis for NSF’s grant decisions. More, NSF disclosure “would interfere” with the agency’s
10
Amiri does not challenge NSF’s foreseeable-harm determination. Arguably, his failure to do
so concedes the issue. But the D.C. Circuit has described the foreseeable-harm determination as
an “independent burden” for the agency to meet. Reporters Comm., 3 F.4th at 369. Given this
and Amiri’s pro se status, the Court assumes that his failure to make an argument is not
dispositive.
14
“longstanding use” of these Review Panels, which rely on full candor to continue NSF’s “gold
standard” for vetting grant proposals. Id. This explanation not only places the withheld material
in a “specific context of agency action,” but also describes how disclosure would “impair” NSF’s
deliberations going forward. Reporters Comm., 3 F.4th at 369–70. NSF has therefore
demonstrated a risk of foreseeable harm from disclosure.
The Court accordingly upholds NSF’s withholdings under Exemption 5.
2.
Under Exemption 6, NSF withheld 25 pages in full and parts of 62 other pages. That
exemption protects “personnel and medical files and similar files” when the disclosure of that
information “would constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C.
§ 552(b)(6).
a.
As an initial matter, Amiri argues that NSF has waived any privacy interest—and cannot
invoke Exemption 6—based on “inadvertent disclosures” made in the November mailing. See
Pl. MSJ Stmt. Resp. ¶ 22; Pl. MSJ Stmt. ¶ 22; Pl. Reply at 2–3, 6. Because NSF FOIA staff
worked remotely at the time, they outsourced the printing and mailing to FedEx. See Evans
Decl. ¶ 21. As a result, Amiri received ten pages of documents that mistakenly contained
unredacted privileged information. See id. ¶ 23; see also Pl. MSJ Ex. A [SEALED] at 2–14,
ECF No. 19-1. NSF contends that the unredacted information comprises PII of individuals
associated with Grant Award 1508680, including salary and student identifications. Id. NSF had
redacted or withheld this information in the original October release, but mistakenly sent an
unredacted PDF to FedEx in November. See id. ¶ 24. Because of remote work, nobody
uploaded that November mailing to NSF’s electronic FOIA system, nor was another copy
15
otherwise available. NSF says that it therefore first learned of the mistake in May 2021 when
Amiri filed his reply brief. Id. Within a day, NSF notified Amiri that it had mistakenly provided
him with privileged information. NSF requested that Amiri return, destroy, or sequester those
records. See id. ¶ 26; see Def. Reply Ex. A, ECF No. 27-3, at 1–2 (copy of correspondence with
Amiri).
NSF argues that the mistaken disclosure does not waive reliance on Exemption 6.
Although an agency cannot assert a FOIA exemption for information that the agency has
officially disclosed to the public, see Davis v. Dep’t of Just., 968 F.2d 1276, 1279 (D.C. Cir.
1992), the Court may examine the nature and circumstances of disclosure to determine whether
an agency has waived an exemption. See Carson v. Dep’t of Just., 631 F.2d 1008, 1016 n.30
(D.C. Cir. 1980) (“[T]he extent to which prior agency disclosure may constitute a waiver of the
FOIA exemptions must depend both on the circumstances of prior disclosure and on the
particular exemptions claimed.”). Courts generally find that, when an unintended error leads to
disclosure, the agency has not waived a FOIA exemption. See, e.g., Mobley v. CIA, 806 F.3d
568, 584 (D.C. Cir. 2015) (“Although a FOIA response could [qualify as an official disclosure],
a simple clerical mistake in FOIA processing cannot.”).
More, an agency’s inadvertent disclosure of individual names and other PII rarely waives
privacy interests under Exemption 6 because those interests belong to the individuals, not to the
agency. See Dep’t of Just. v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 763–66
(1989); see also Comp. Prof’ls for Soc. Responsibility v. U.S. Secret Serv., 72 F.3d 897, 904
(D.C. Cir. 1996) (acknowledging that agency must disclose responsive information for
individuals who “provided [] waivers of their privacy rights”). Amiri presents no evidence that
the individuals associated with this PII have waived their privacy interests.
16
Ultimately, NSF’s statements speak for themselves. The agency consistently labels this
disclosure as inadvertent. NSF also released redacted versions of the same pages in both October
and December. That further supports the agency’s statements that it made a mistake in
November. See Evans Decl. ¶ 25. And once alerted, NSF took prompt steps to protect the
unredacted documents from public view, both with the Court, see generally MTS, and with
Amiri, see Evans Decl. ¶ 26.
Amiri does not substantively contest these statements or facts. Instead, he implies that
NSF must have intended disclosure because it gave FedEx unredacted copies after having mailed
redacted ones in October. More plausibly, a remote FOIA staff member mistakenly assembled
unredacted pages. That error was inattentive, but it suggests no wrongdoing or intentionality,
particularly given the circumstances and logistical challenges of the FOIA staff’s telework. See
Evans Decl. ¶¶ 23–24; see also Guz Decl. ¶¶ 9, 12. NSF also worked quickly to resend the
release because Amiri’s address had changed. See Guz Decl. ¶ 16. Finally, Amiri never
questions NSF’s statement that it first learned about the mistake in May.
The Court finds that, under the totality of the circumstances, NSF did not waive its right
to invoke Exemption 6.
b.
The Court next turns to the applicability of Exemption 6. An agency may rely on that
Exemption to withhold “personnel and medical files and similar files” when the disclosure of
that information “would constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C.
§ 552(b)(6). The term “similar files” covers records about a person that can be identified as
applying to that individual, including “bits of personal information, such as names and addresses,
the release of which would create a palpable threat to privacy.” Prison Legal News v. Samuels,
17
787 F.3d 1142, 1147 (D.C. Cir. 2015) (cleaned up). “The information in the file ‘need not be
intimate’ to satisfy the standard, and the threshold for determining whether information applies
to a particular individual is minimal.” Milton v. Dep’t of Just., 783 F. Supp. 2d 55, 58 (D.D.C.
2011) (quoting N.Y. Times Co. v. NASA, 920 F.2d 1002, 1006 (D.C. Cir. 1990)).
i.
NSF applied Exemption 6 to withhold in full 25 pages of documents. See Guz Decl. ¶
38; VI at 1–18. 11 Twenty-three of those pages, see Bates Nos. 48–70, contained the “history
files” of senior personnel listed on the grant award. Guz Decl. ¶¶ 39, 41; VI at 6–7. Those files
“consist of tables showing all of the proposals submitted to NSF, both awarded and declined,
along with tables showing information about each time the individual served as an NSF
reviewer.” Guz Decl. ¶ 39. NSF states that it needed to “redact the entire table, including rows
that may show awarded proposals, because otherwise it would become clear from the redacted
portions of the table if, and approximately how many, proposals” NSF declined. Id. ¶¶ 40–41.
NSF also redacted under Exemption 6 parts of 62 other pages. NSF says these redactions
protect PII of individuals involved in Grant Award No. 1508680, including: “student names,
personal email addresses, salary information, person-hours allocated to various grants and other
employment activities, current financial support to senior personnel and students from entities
other than NSF, and NSF review panel member identities.” Id. ¶ 43; VI at 1–6, 8–13, 15–18.
NSF redacted some information that “could reasonably be used to determine the identity of the
person.” Id. ¶ 43. According to NSF, this type of “indirect disclosure of a record subject’s
identity would violate the spirit of” Exemption 6. Id.
11
As discussed above, NSF properly withheld two of those pages, Bates Nos. 171–72, under
Exemption 5. See supra III.C.1.
18
NSF also says that individuals on Review Panels often critique “proposals submitted by
colleagues in their same field of study.” Id. ¶ 42. NSF thus seeks to protect the identity of those
panel members because public disclosure of their reviews could cause “professional harm with
the[ir] colleagues whose proposals were critiqued and/or not funded.” Id.
ii.
To analyze NSF’s withholdings under Exemption 6, the Court first asks whether
disclosure would compromise a “substantial” privacy interest. Multi Ag Media LLC v. Dep’t of
Agric., 515 F.3d 1224, 1229 (D.C. Cir. 2008) (cleaned up). The standard is not demanding;
anything “greater than a de minimis” interest is substantial. Id. at 1230.
The individuals implicated in NSF’s withholdings have a substantial privacy interest in
their PII. See id. at 1229. Disclosure of the history tables would put the names of review panel
members and employees into the public domain. A scientist who received no NSF funding
would then know how each panel assessed his submission. As NSF points out, that would lead
to professional harm for the reviewers, many of whom share a profession with applicants. 12 See
Guz Decl. ¶ 42.
The same concerns animate withholding PII in the other documents. Disclosure would
allow someone to piece together the identity of the grant submitters, the Review Panel members,
Program Managers, and other senior personnel. See Swan v. SEC, 96 F.3d 498, 500 (D.C. Cir.
1996) (“Agencies, and hence courts, must evaluate the risk of disclosing records . . . not simply
12
And even if Exemption 6 did not permit redaction of the history tables and reviews,
Exemption 5 would also apply. See Almeda v. Dep’t of Educ., No. 17-cv-2641, 2020 WL
601628 at *4 (D.D.C. Feb. 7, 2020) (finding that documents were deliberative and should thus
fall under Exemption 5 and also should come under Exemption 6’s protection as information
leading to the possible identification of the authors) (collecting cases), aff’d, No. 20-5087, 2020
WL 6038697 (D.C. Cir. Aug. 18, 2020).
19
in terms of what the requester might do with the information, but also in terms of what anyone
else might do with it.”). That disclosure would put those people “at risk of being harassed for
details.” Kelly v. CIA, No. 00–2498, 2002 WL 34463900 at *20–21 (D.D.C. Aug. 8, 2002)
(affirming agency’s determination to withhold, under Exemption 6, all information that could
have identified personnel involved in a research project, where it could have “negatively
impact[ed] the perception that both the public and their peers have of them” and where there was
a possibility that interested parties might contact them). And Exemption 6 has long protected the
identities of low-level government employees and private individuals, including applicants for
federal grants. See Common Cause v. Nuclear Reg. Comm’n, 674 F.2d 921, 938 (D.C. Cir.
1982).
Amiri responds that the withheld material implicates no privacy interests. None of his
arguments persuade the Court, and he rarely rebuts NSF’s responses. He first argues that
scientists voluntarily agree to evaluate these grants and thus cannot have private interests in their
evaluations. Id. at 19–21; see also Pl. MSJ Stmt. Resp. ¶ 29. The Court disagrees—
voluntariness does not outweigh the need to redact PII. See Billington v. Dep’t of Just., 258 F.
App’x 348, 349 (D.C. Cir. 2007).
Next, Amiri argues that NSF should release all PII because the agency redacted PII for
some individuals, but not others. See Pl. MSJ Stmt. Resp. ¶ 22. But NSF counters that it
released the PII for students “who were [already] associated with this project in the public
domain, usually in the form of scientific research publications.” Def. Reply at 11. The agency
released no data for the students not publicly associated with Grant Award 1508680. NSF
contends that this disparate release is not an inconsistency but the agency’s efforts to segregate
particularized material. See id. Amiri does not argue otherwise.
20
Amiri also alleges that NSF should disclose the withheld student PII because it is publicly
available on the University of Alabama’s website. See Pl. MSJ at 16–18; Pl. VI Resp. at 16–17.
But NSF has searched the website and confirmed that the redacted student PII does not appear
there, and that the website has never routinely posted the type of PII redacted—“anticipated
graduation year and ongoing work on a specific grant award.” Evans Decl. ¶ 19. Amiri does not
rebut NSF’s findings, so the Court accepts them.
Finally, Amiri maintains that the salaries of the relevant senior personnel are publicly
available at www.open.ua.edu. See Pl. MSJ at 18; Pl. VI Resp. at 17–18, 21. NSF did not
originally search this specific website because it is neither affiliated with NSF nor contains
agency records. See Evans Decl. ¶ 20. And Amiri never requested a search for records from the
University of Alabama. See id. In any event, NSF searched the website in response to Amiri’s
briefing, and “did not find specific budgeted amounts that were redacted in the NSF award
records.” 13 Id. Again, Amiri provides no countervailing evidence on this point, thereby
conceding it.
In sum, the information withheld by NSF implicates a substantial privacy interest. Amiri
has not shown otherwise.
iii.
Once withheld material implicates a substantial privacy interest, the Court must evaluate
whether release of that material would constitute a “clearly unwarranted invasion of personal
13
And even if the redacted salaries could be found on the website, the doctrine of practical
obscurity would likely provide for redaction of the information in the NSF award records. See
Evans ¶ 20 (citing Reporters Comm., 489 U.S. at 764, describing the “practical obscurity”
standard, and explaining that discrete “compilation of otherwise hard-to-obtain information”
differs from public information, and that if the former were “‘freely available,’ there would be no
reason to invoke the FOIA to obtain access to” them).
21
privacy.” Wash. Post Co. v. HHS, 690 F.2d 252, 260 (D.C. Cir. 1982) (quoting 5 U.S.C. §
552(b)(6)). To do so, the Court balances “the privacy interest that would be compromised by
disclosure against any public interest in the requested information.” Multi Ag Media, 515 F.3d at
1228. On the public interest side of the equation, a requester must show a significant public
interest “more specific than having information for its own sake.” Nat’l Archives & Recs.
Admin. v. Favish, 541 U.S. 157, 172 (2004); see Blackwell v. FBI, 646 F.3d 37, 41 (D.C. Cir.
2011). In fact, “the only relevant public interest” is “the extent to which disclosure of the
information sought would shed light on an agency’s performance of its statutory duties or
otherwise let citizens know what their government is up to.” Lepelletier v. FDIC, 164 F.3d 37,
46 (D.C. Cir. 1999) (cleaned up). The requested information must advance that interest. See
Favish, 541 U.S. at 172. “Information that reveals little or nothing about an agency’s own
conduct” will not suffice. Beck v. Dep’t of Just., 997 F.2d 1489, 1493 (D.C. Cir. 1993) (cleaned
up).
Amiri tries to assert a public interest in disclosure. He first argues that the release of this
information would reveal “the scientific value of the research proposed and conducted by [him
as] compare[d] to the other proposals,” Pl. VI Resp. ¶ 22, and would “show how much NSF was
willing to invest” in Amiri’s work. Id. 18–19. Amiri displays these self-seeking interests
through his extensive allegations that both NSF and the University of Alabama conspired to oust
him from the project, revoke his visa, and steal his intellectual property. 14 See Pl. MSJ Stmt. ¶¶
14
The Court takes judicial notice of prior litigation where Amiri already unsuccessfully raised
some of these allegations. See Amiri v. Gupta, No. 18-cv-0425, 2018 WL 3548729 at *4 (N.D.
Ala. July 24, 2018) (raising claims against the University of Alabama and senior personnel for
violating 42 U.S.C. § 1985, due process, and fraud); Amiri v. Bd. of Tr. of Univ. of Ala., 440 F.
Supp. 3d 1267 (N.D. Ala. 2020), appeal dismissed sub nom. Amiri v. Gupta, No. 20-10964, 2020
WL 5407778 (11th Cir. Aug. 18, 2020); Amiri v. Barr, Civ. A. No. 20-cv-0473, 2020 WL
3039258 at *1 (W.D. La. May 7, 2020) (challenging revocation of his visa based on fraud and
22
5–6, 29–31; Pl. MSJ Stmt. Resp. ¶¶ 22, 30–1; Pl. MSJ at 21–24; Pl. Reply at 4, 7. More
specifically, Amiri claims that NSF used his scientific discoveries to harm him and that the
alleged “[w]rongdoers used their influence and power to stop [his] progress, steal his discoveries,
and put him in jail for false allegations of visa overstay.” Pl. MSJ at 23. He states that a “proper
FOIA release will bring transparency and truth to” these allegations and that “the wrongdoers
will go to jail, not the Plaintiff[,] who is the greatest scientist of this century.” Id.Yet Amiri makes no legal argument for how disclosure of PII would “shed light on
[NSF’s] performance of its statutory duties,” which is the only relevant public interest under
Exemption 6. Dep’t of Def. v. FLRA, 510 U.S. 487, 497 (1994). Amiri seeks only to “hav[e]
information for its own sake,” namely to boost his own notoriety. Favish, 541 U.S. at 172. And
his fraud allegations are beside the point. He cannot surmount the privacy interest of the
mentioned individuals based only on a “bare suspicion” that NSF engaged in misconduct.
Favish, 541 U.S. at 174. Nor is NSF obligated under FOIA to answer substantive questions
presented in the guise of a document request, or by extension through this litigation. See
Schoenman v. FBI, 573 F. Supp. 2d 119, 140 (D.D.C. 2008).
In this same vein, Amiri conjectures that the Principal Investigators inserted themselves
into NSF’s FOIA review and made their own redactions. See Pl. MSJ Stmt. Resp. ¶¶ 22, 30; Pl.
Reply at 3–4. He believes this to be true based on nuanced stylistic differences between certain
redactions. See id. In response to these allegations, NSF again reviewed the record and
confirmed that only NSF FOIA staff made the redactions. See Evans Decl. ¶ 19. Amiri offers no
substantive reason to doubt that finding. Instead, he invites the Court to speculate, which it
misrepresentation about his termination from the NSF Grant project), report & rec. adopted,
2020 WL 3039132 (W.D. La. June 5, 2020) (dismissed with prejudice).
23
cannot do. “[I]t is well settled that conclusory allegations unsupported by factual data will not
create a triable issue of fact.” Broaddrick, 139 F. Supp. 2d at 65 (cleaned up). Simply put,
Amiri’s broad and generalized allegations do not state a public interest. 15
Amiri also suggests that the public has a greater interest in the activities of senior
personnel who, thanks to their higher positions, have only a de minimis privacy interest. See id.
at 20–22. True, more senior employees might enjoy a diminished privacy interest. See, e.g.,
Stern v. FBI, 737 F.2d 84, 92-94 (D.C. Cir. 1984) (withholding names of lower-level employees,
but not an FBI Special Agent). But courts typically lower that interest when evidence abounds
that senior personnel engaged in misconduct. See Beck, 997 F.2d at 1493 (“It suffices to note
that the public interest identified in Stern was based on the widespread knowledge that certain
FBI employees had been censured . . . .”). Amiri points to “no evidence, let alone any public
knowledge, that wrongdoing” occurred at NSF. Id. He only alleges wrongdoing, and without
any support.
Alternatively, Amiri argues that the Federal Funding Accountability and Transparency
Act (“FFATA”) of 2006 requires disclosure of all information about NSF grants, including
associated budgetary details. See Pl. MSJ at 19–20; Pl. VI Resp. at 19–21. NSF says that it has
posted all required information about its grants to www.USASpending.gov—the official source
for spending data for the U.S. Government. 16 And FFATA disclosures include total award
15
Amiri also argues that records of a proposed disciplinary action should be public record. See
Pl. VI Resp. at 16. He offers no legal arguments in support. In any event, Exemption 6
withholds potential and actual disciplinary measures. See Bloomgarden v. Dep’t of Just., 874
F.3d 757, 760–62 (D.C. Cir. 2017) (withholding under Exemption 6 a letter describing a
prosecutor’s grounds for termination).
16
See FFATA Subaward Reporting System, About FSRS, available at https://www.fsrs.gov/
(last visited Sept. 8, 2021). Specific information on Grant Award No. 1508680 is publicly
available at “Project Grant FAIN 1508680,”
24
amounts, not budget breakdowns. See FFATA, § 2(b)(1)(B); Def. Reply Ex. B (showing only
total amounts). NSF says that none of the withheld information therefore need be disclosed
under FFATA. Amiri again offers no argument to the contrary.
Amiri has not identified a public interest in disclosure that would outweigh the interest of
various individuals in their PII. See Wash. Post, 456 U.S. at 599. The Court therefore has no
counterweight on the FOIA scale against the asserted privacy interest. See Favish, 541 U.S. at
174-75. The Court thus agrees with NSF that Exemption 6 protects the PII at issue.
iv.
NSF must show that disclosure of the PII at issue would harm the interests protected by
Exemption 6. 17 Admittedly, NSF does not expressly address this requirement for its Exemption
6 withholdings. But a court may find the foreseeable-harm requirement satisfied if “the very
context and purpose of” the withheld material “make[s] the foreseeability of harm manifest.”
Reporters Comm., 3 F.4th at 372.
NSF’s declarations and the context of the withheld material make out a foreseeable harm.
As NSF explained, disclosure of the history tables would “cause professional harm” to the
individuals listed in those documents. Guz Decl. ¶ 42. That information would allow others to
see not only who was denied NSF funding but also who reviewed the proposals that received no
funding. See id. ¶ 38, 42. NSF suggests that such knowledge would anger applicants whose
proposals received no funding and would cause them to ridicule those who did. See id. The
Court agrees.
https://www.usaspending.gov/award/ASST_NON_1508680_4900 (last visited Sept. 16, 2021);
see Def. Reply Ex. B, ECF No. 27-4 (copy of publicly available budgetary information).
17
Amiri again does not challenge this aspect of NSF’s declarations, but the Court analyzes the
issue anyway.
25
And for the student PII that NSF withheld in 62 partially redacted pages, that information
pertains to individuals who were “involved in the award.” Id. ¶ 43. That information therefore
exists in the same context as the material in the history tables—disclosure would identify the
person and, depending on their involvement, might subject them to ridicule. Thus, the “context”
of the information in those 62 pages makes “manifest” the harm from disclosure. Reporters
Comm., 3 F.4th at 372. NSF has shown a risk of foreseeable harm from disclosure of this
information.
NSF therefore properly invoked Exemption 6 as to all redacted and withheld information.
3.
Finally, the Court must assess the segregability of the released information. Under FOIA,
an agency must disclose “all reasonably segregable, nonexempt portions of the requested
record(s).” Roth v. Dept. of Just., 642 F.3d 1161, 1167 (D.C. Cir. 2001). The agency must
provide “a detailed justification and not just conclusory statements to demonstrate that all
reasonably segregable information has been released.” Valfells v. CIA, 717 F. Supp. 2d 110, 120
(D.D.C. 2010). A declaration describing a review of the documents and a Vaughn index
describing each withholding satisfy the segregability requirement. See Loving v. Dep’t of
Defense, 550 F.3d 32, 41 (D.C. Cir. 2008); Johnson v. EOUSA, 310 F.3d 771, 776 (D.C. Cir.
2002). The Court presumes that an agency has complied with its obligation to release segregable
material. See Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1117 (D.C. Cir. 2007). The
requester must provide some “quantum of evidence” to overcome that presumption. Id.Here, the NSF says that it reviewed the responsive documents more than once and
produced all non-exempt and segregable information. See Guz Decl. ¶¶ 35, 46–48; Evans Decl.
¶ 19. The agency conducted a “line-by-line review” to identify information exempt from
26
disclosure. Guz Decl. ¶ 47. These representations suffice. And, as discussed above, the Vaughn
index adequately describes the withheld documents. See generally VI. Amiri has provided no
reason to doubt that the agency met its segregability obligation. See Johnson, 310 F.3d at 776.
Thus, the Court holds that NSF has satisfied its segregability obligations under FOIA.
IV.
NSF moves to seal Amiri’s Exhibit A, attached to his Motion for Summary Judgment,
ECF No. 19-1 at 2–14. The Exhibit contains the documents that the agency inadvertently sent
unredacted to Amiri in November 2020. See Pl. MSJ Ex. A [SEALED] at 2–14; see also Bates
Nos. 178, 180, 187, 188, 258, 259, 260, 300, 301, and 547.
Any consideration of a motion to seal begins with “a strong presumption in favor of
public access to judicial proceedings.” Hardaway v. DCHA, 843 F.3d 973, 980 (D.C. Cir. 2016).
But “that presumption may be outweighed in certain cases.” Metlife, Inc. v Fin. Stability
Oversight Council, 865 F.3d 661, 665 (D.C. Cir. 2017). The Court considers six factors when
presented with a motion to seal: (1) the need for public access to the documents at issue; (2) the
extent of previous public access to the documents; (3) that someone has objected to disclosure,
and the identity of that person; (4) the strength of any property and privacy interests asserted; (5)
the possibility of prejudice to those opposing disclosure; and (6) the purposes for which a party
introduced the documents during the judicial proceedings. See id.Here, the Court has already addressed factors (1) through (5) when it affirmed NSF’s
withholdings under Exemption 6. Admittedly, factor (6) favors disclosure—Amiri submitted the
Exhibit “to influence a judicial decision.” Cable News Network, Inc. v. FBI, 984 F.3d 114, 121
(D.C. Cir. 2021). But that one factor does not outweigh that the other five, which favor sealing
the document. Many individuals have a strong privacy interest in the unredacted PII and Amiri
27
has not shown that the public should see that information. The Court therefore agrees to seal the
Exhibit. Amiri’s counterarguments directly mirror his arguments in opposition to summary
judgment, see Opposition to Motion for Order to Seal at 1–9, ECF No. 29, which the Court has
already addressed.
Thus, the Court will grant NSF’s Motion for Order to Seal, and ECF No. 19-1 will be
permanently sealed.
V.
The Court also considers Amiri’s other arguments that seem to apply across both his
FOIA challenge and his opposition to sealing Exhibit A.
Amiri appears to accuse NSF of bad faith. Beyond his fraud allegations, he focuses at
length on the delays in processing and in delivering the final release. See Pl. MSJ Stmt. Resp. ¶¶
1, 4–5, 9, 23–24; Pl. MSJ Stmt. ¶¶ 10–22; Pl. Reply at 2, 5–6. He also objects to the
inconsistencies between the October, November, and December mailings, including the
differences in the redactions, number of pages released, and the lack of Bates numbers in the
October release. See Pl. MSJ Stmt. Resp. ¶¶ 22, 25–26, 30; Pl. MSJ Stmt. ¶¶ 7–9; Pl. Pl. Reply
at 2–4.
The Court credits NSF’s explanations for the delays and the differences in the redactions
and page numbers. According to the agency, a backlog, an administrative error, and remote
work during COVID-19 caused these issues. See Guz Decl. ¶¶ 6, 12–13, 25, 27; Evans Decl.
¶¶ 21–26. Amiri does not refute those purported causes. And NSF attempted, in good faith, to
send the correct version to Amiri in October, see Guz Decl. ¶ 15, 24, 26; Def. MSJ Ex. 4. He in
fact received the full and final version via re-release in December. See Evans Decl. ¶ 25; Guz
Decl. ¶ 17; Def. MSJ Ex. 5; see also Meeropol v. Meese, 790 F.2d 942, 952 (D.C. Cir. 1986)
28
(holding that initial agency noncompliance does not always reflect bad faith and that later
compliance can cure any previous deficiency). More, Amiri’s own change in address partially
caused the delay. See generally ECF No. 11; see also Guz Decl. ¶ 15–16. And the lack of Bates
numbers on the October and November productions strikes the Court as sloppy, not suspicious.
Amiri also complains of a delay of less than one year in the agency’s processing of his
request. Courts routinely find that longer delays do not suggest agency bad faith. See Skurow v.
DHS, 892 F. Supp. 2d 319, 326 (D.D.C. 2012) (one-year delay insufficient for finding agency
bad faith; claims of bad faith were purely speculative); Competitive Enter. Inst. v. Nat’l
Aeronautics & Space Admin., 989 F. Supp. 2d 74, 88–89 (D.D.C. 2013) (two-year delay not bad
faith); Thomas v. Dep’t of Justice, 531 F. Supp. 2d 102, 109 (D.D.C. 2008) (three-year delay in
agency’s response to FOIA request not “purposeful” and absent other evidence did not suggest
bad faith); Goland v. CIA, 607 F.2d 339, 355 (D.C. Cir. 1978) (“[I]n view of the well-publicized
problems created by the statute’s 10- and 20-day time limits for processing FOIA requests and
appeals, the CIA’s delay alone cannot be said to indicate an absence of good faith.”). The Court
accordingly finds no evidence of agency bad faith.
Lastly, Amiri states in his Reply that the Court should now oversee and presumably
adjudicate his new pending OIG FOIA Request and another new FOIA Request that he
submitted to NSF in June 2021. See Pl. Reply at 11–12 (citing OIG FOIA Request and Pl. Reply
Ex. B, ECF No. 30-2, at 3—a copy of June 10, 2021 FOIA Request) (“New NSF FOIA
Request”). He argues that the OIG FOIA Request and the New NSF FOIA Request “cannot be
litigated in another FOIA lawsuit.” Pl. Reply at 12. Amiri is mistaken. Because he has filed
new and separate FOIA Requests (and filed them after NSF’s final release) those requests will
29
receive their own judicial review if necessary later. And NSF’s OIG is not a defendant here, nor
has Amiri moved to join it as a defendant.
More still, a requester may not expand the scope of his FOIA request(s) during litigation.
See, e.g., Houser v. Church, 271 F. Supp. 3d 197, 204 (D.D.C. 2017); Donoghue v. Office of
Info. Policy, Dep’t of Justice, 157 F. Supp. 3d 21, 23 n.2 (D.D.C. 2016). Nor may a plaintiff,
even a pro se one, raise new claims at the summary judgment stage, particularly not in an
opposition or reply, when a defendant has little to no chance to prepare and respond. See Sai v.
Transp. Sec. Admin., 315 F. Supp. 3d 218, 234 (D.D.C. 2018) (“Although pro se litigants are
entitled to some leeway, they must comply with the Federal Rules of Civil procedure, and a
plaintiff—even a pro se plaintiff—may not amend the complaint by raising an issue for the first
time in a brief in opposition to a motion for summary judgment.”) (cleaned up). The Court thus
declines to consider issues relating to Amiri’s OIG FOIA Request and New NSF FOIA Request.
VI.
For these reasons, the Court will grant NSF’s Motion for Summary Judgment and NSF’s
Motion for Order to Seal. The Court will deny Amiri’s Cross-Motion for Summary Judgment.
A separate Order will issue.
2021.09.28
12:03:58 -04'00'
____________________________
Dated: September 28, 2021 TREVOR N. McFADDEN, U.S.D.J.
30