Am. First Legal Found. v. FBI, No. 23-2172, 2024 WL 4607496 (D.D.C. Oct. 29, 2024) (Howell, J.)

Am. First Legal Found. v. FBI, No. 23-2172, 2024 WL 4607496 (D.D.C. Oct. 29, 2024) (Howell, J.)

Re:  Request for records concerning FBI’s background investigations into U.S. Secretary of Homeland Security Alejandro Mayorkas

Disposition:  Granting defendant’s motion for summary judgment

• Litigation Considerations, Adequacy of Search:  The court holds that “Defendants’ search amply meets [the] standard.”  “The FBI submitted a 61-page affidavit by the FBI’s Section Chief of the Record/Information Dissemination Section, Information Management Division, describing in detail:  (a) his familiarity with the procedures followed by the FBI in responding to FOIA requests . . . ; (b) his specific knowledge of how the FBI handled plaintiff’s FOIA request . . . ; (c) how the CRS is organized and the comprehensive set of records, information, and data it contains . . . ; (d) the agency’s basis for believing that the records requested would be stored in CRS and accessed via a search in Sentinel . . . ; (e) that the FBI searched CRS via Sentinel with the broad term ‘Alejandro Mayorkas,’ the third party for whom plaintiff is seeking certain information, with a search cut-off date of September 22, 2023, which was coterminous with the FBI’s initial search for records . . . ; and (f) that the FBI identified responsive records . . . .”  “Furthermore, the declarant averred that ‘there is no indication from the CRS search efforts that responsive records would reside in any other FBI system or location.’”
  
  “Plaintiff challenges the adequacy of the search for two specific reasons.”  “First, plaintiff complains that the FBI did not search any email accounts ‘that would potentially contain records responsive to the request[]’ . . . .”  “Second, plaintiff claims the request was for ‘four sets of records spanning multiple sessions of Congress . . . and there is no indication . . . that the FBI ever looked for anything other than the most recent one.’”  “Plaintiff’s first argument focuses on whether email accounts were searched, but the request itself did not seek communications of any kind, let alone email communications, regarding the documents that were expressly requested.” “The background investigation documents, and versions thereof, would have been uncovered in a search of CRS.” “In any event, the search of CRS uncovered emails between FBI personnel, between FBI personnel and private citizens/corporations, between FBI personnel and other government agency personnel, and between FBI personnel and state and local law enforcement agencies – all in connection with its background investigations because such records are ‘located within . . . background investigation files’ and accessed by a Sentinel search of CRS.”  “Plaintiff’s second argument speculates that defendants searched for records only as to the cabinet secretary’s nomination for his current position.”  “This is plainly wrong and ignores defendants’ search protocol.”  “Specifically, the FBI ran a search across CRS for ‘Alejandro Mayorkas’ without any start date and with an end date of September 22, 2023, when the U.S. Senate confirmed Secretary Mayorkas’ nomination.”
   
• Exemption 6; Exemption 7, Threshold; Exemption 7(C):  The court holds that “Defendants’ categorical approach to withholding documents under Exemptions 6 and 7(C) is both logical and appropriate.”  Regarding Exemption 7’s threshold, the court finds that “Plaintiff does not dispute that the withheld records at issue here meet 7(C)’s threshold requirement that defendants created them for law enforcement purposes.”  “Indeed, ‘[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.’”
  
  Regarding the privacy interests at issue, the court finds that “[t]he FBI declarant provided a detailed chart outlining the functional categories and subcategories of responsive documents, types of documents, and descriptions of the documents at a level of detail ‘that would not undermine Mr. Mayorkas’ privacy interests.’”  “For each functional category, the FBI declarant further described the anticipated harms that could reasonably result from disclosure, such as ‘embarrassment, false inferences, degradation of the perception of third parties’ personal character, revelation of personal details about his life he may not want publicly disclosed, and potentially harassing inquiries directed at third parties.’”  “‘After extensive review of the documents,’ . . . defendants concluded the responsive records were subject to categorical withholding . . . .”  “The privacy interests in records related to an FBI background check are significant.”  “Thus, ‘as a categorical matter’ disclosure ‘can reasonably be expected to invade [these] citizen[s]’[ ] privacy.’”  The court notes that “‘public officials’ ‘may have a somewhat diminished privacy interest [in the Exemption 7(C) balancing analysis,]’ but ‘do not surrender all rights to personal privacy when they accept a public appointment.’”  However, “[t]he information requested here includes intimate details of a third-party’s life contained within background investigation files.”  “If being a public official weakens one’s privacy interest in certain information under the balancing required in the Exemption 7(C) analysis, ‘[t]his is not . . . such a case.’”  Additionally, “[a]s the FBI’s declarant makes clear, producing the responsive documents would not only violate the privacy rights of Secretary Mayorkas but also ‘the privacy interest of the many other individuals who are mentioned in’ the documents, including the interviewees whose statements ‘f[or]m the basis for defining the personal character and qualifications of’ Secretary Mayorkas.”
  
  Regarding the public interest, the court relates that “Plaintiff proffers four arguments to overcome the asserted privacy interests of Secretary Mayorkas and other persons interviewed as part of the FBI’s background investigations but none is persuasive.”  “First, plaintiff believes the records will support ‘serious allegations that the background check process has become broken and politicized’ and show that ‘the FBI has repeatedly violated the Paperwork Reduction Act, the Privacy Act, and the FBI’s own Manual of Investigative Operations and Guidelines in its conduct of background investigations.’”  The court finds that “[t]his argument fails to rise above ‘bare suspicion.’”  “Second, plaintiff argues that, given Secretary Mayorkas’ professional history with prior public service positions, ‘background investigations of Mr. Mayorkas necessarily include information about his public service and not merely personal details, information that would shed light on what the government was up to during those periods.’”  “Plaintiff’s argument ignores the detailed declaration attesting to the types and descriptions of records the FBI reviewed in its background investigation into Secretary Mayorkas – none of which are described as including information related to how the agencies previously led by Secretary Mayorkas carried out their statutory duties.”  “Third, plaintiff argues that ‘the requested records likely contain information about [Secretary Mayorkas’] intervention as the Director of [USCIS] in multiple EB-5 adjudications, which led to the Inspector General finding an “appearance of favoritism and special access.”’”  “This argument appears predicated on the assumption that a requested background investigation of a potential nominee is an opportunity for the FBI to conduct a re-do and re-analysis of any prior investigation by other enforcement agencies of the individual.”  “That assumption has no basis in the record.”  “Fourth, and related to the third argument, plaintiff contends that the documents are necessary to determine whether the FBI ‘fully investigated’ Secretary Mayorkas relating to his nominations.”  “These allegations are, at worst, salacious, and at best, speculative.”  “Such threadbare ‘what-ifs’ are not sufficient for plaintiff to carry its burden, since plaintiff ‘must produce evidence that would warrant a belief by a reasonable person that the alleged Government impropriety might have occurred.’”
  
  Balancing these interests, the court finds that, “[a]s described above, the personal privacy stakes of Secretary Mayorkas and individuals interviewed by the FBI as part of the background investigations are at their zenith.”  “On the other side of the scale, plaintiff has failed to articulate a public interest worthy of overriding the privacy interests Exemption 7(C) protects.” Therefore, the court finds that “Plaintiff has failed to identify, or substantiate, a public interest warranting the release this intimate and private information.”  “As such, defendants properly categorically withheld these records under Exemption 7(C).”
   
• Litigation Considerations, Evidentiary Showing, “Reasonably Segregable” Showing: The court holds that, “[o]ther than repeating the already rejected arguments that defendants improperly withheld the documents within [two groups] categorically, plaintiff raises no other challenge to undercut the attestations made by the FBI’s declarant nor the ‘presumption that [the agencies] complied with their obligation to disclose any reasonably segregable [material].’”  “The fact that defendants released segregated information covered by [one other group] only bolsters a finding that defendants ‘did segregate non-exempt information . . . withheld under [the] FOIA exemptions.’”