Bierly v. DOD, No. 23-2386, 2024 WL 4227154 (D.D.C. Sept. 18, 2024) (Lamberth, J.)

Bierly v. DOD, No. 23-2386, 2024 WL 4227154 (D.D.C. Sept. 18, 2024) (Lamberth, J.)

Re:  Request for records concerning revocation of plaintiff’s security clearance

Disposition:  Granting defendants’ motion for summary judgment

• Litigation Considerations, Exhaustion of Administrative Remedies:  The court holds that “[plaintiff] has failed to exhaust administrative remedies as to most of his FOIA . . . requests.”  “[Plaintiff] did not appeal [defendant’s] responses to Requests 1, 2, or 3 before filing this action.”  “For these three requests, then, [plaintiff] failed to exhaust administrative remedies, and the Court accordingly grants summary judgment to the defendants under both FOIA and the Privacy Act.”  “However, [defendant] did not respond to Request 6 until a few days after the lawsuit was filed, and well after FOIA's 20-day response window had elapsed.”  “Therefore, [plaintiff] has constructively exhausted his administrative remedies as to Request 6, which is therefore eligible for judicial review under FOIA.” “That leaves Requests 4 and 5.” “The defendants concede that [plaintiff’s] appeal of this request . . . , which was unanswered when he filed suit, constitutes administrative exhaustion under FOIA.”  The court does take issue with certain Privacy Act appeal deficiencies and finds that “[it] must now consider the defendants’ searches and withholdings in response to Requests 4 and 5 under both FOIA and the Privacy Act, as well as Request 6 under FOIA alone.”
   
• Litigation Considerations, Adequacy of Search:  “The Court concludes that [defendant’s] search as to each request was adequate.”  “Here, the Government has submitted a declaration from the Chief of the [Defense Counterintelligence and Security Agency’s (“DCSA”)] Privacy, Civil Liberties, and Freedom of Information program, attesting to the search methodologies used to process [plaintiff’s] document requests.”  “The Declaration identifies the databases that were searched in response to each of [plaintiff’s] requests.”  “The Declaration further details how many records each system returned for each request.”  “This declaration reflects the sort of ‘good faith effort . . . reasonably expected to produce the information requested’ that FOIA requires an agency to undertake.”  “[Plaintiff] only disputes the adequacy of the defendants’ search as to Request 6 – the request to which the DCSA failed to respond before the lawsuit began – arguing, in essence, that a search that takes place too late is necessarily inadequate.”  “But the untimeliness of the DCSA’s response matters little to the adequacy of its search now that the DCSA has, in fact, responded to [plaintiff’s] request.”
   
• Exemption 3:  The court relates that “[defendant] redacted several documents which contained references to reports made and maintained by [the Department of the Treasury’s Financial Crimes Enforcement Network (“FinCEN”)] pursuant to the Bank Secrecy Act.” “The Bank Secrecy Act ‘exempts records collected under that act from disclosure under FOIA.’”  “[Plaintiff] does not contest that the defendants properly invoked these exemptions, so there is no genuine dispute that these records were properly withheld.”
   
• Exemption 5, Deliberative Process Privilege:  The court relates that “[t]he defendants also withheld or redacted several internal communications related to [plaintiff’s] security investigation under FOIA Exemption 5 . . . .”  “In this case, the defendants maintain that some of these documents fall within the deliberative process privilege because they contain ‘predecisional deliberative communications and advisory opinions’ relating to [plaintiff’s] security clearance investigation, whereas others are encompassed by attorney-client privilege because they comprise ‘advisory opinions obtained from the DCSA, Office of General Counsel.’” “[Plaintiff] only challenges the redaction of one such communication:  an ‘OGC Referral Form’ which, according to the defendants’ Vaughn index, is protected by attorney-client privilege.”  “This document’s tracking number reveals that it was produced in response to either Request 1 or 2.”  The court finds that “[plaintiff] failed to exhaust administrative remedies under both FOIA . . . as to these requests.” “Therefore, [plaintiff] has no basis to object to this withholding.”
   
• Exemption 6:  The court relates that “the defendants withheld the names and contact information of DCSA’s investigative and adjudicative staff pursuant to FOIA Exemption 6 . . . .”  “The defendants claim that such personnel have a ‘significant interest in maintaining anonymity to avoid potential harassment . . . from individuals that may have been negatively impacted by a determination they made,’ and that the public would not benefit from knowing the identities of these individuals.” “The Court agrees:  disclosing the names of security clearance investigators would needlessly endanger them and the integrity of the security clearance process, and would not meaningfully ‘“she[d] light on an agency’s performance of its statutory duties” or otherwise let citizens know “what their government is up to[]”’ . . . .”  “[Plaintiff] does not address this exemption, leaving no genuine dispute that it was properly applied.”
   
• Exemption 7(E):  The court relates that “the defendants redacted the results of FBI ‘name check’ searches under FOIA Exemption 7(E) . . . .” “DCSA asks the FBI to run a ‘name check’ on each security clearance applicant, which reveals whether the FBI has any investigative records on him.”  “The DCSA withholds the results of name checks, whether positive or negative, because a positive record could alert the individual that they are under investigation by the FBI, whereas a negative record could inform an offender that they have eluded the FBI’s attention.”  The court finds that “DCSA’s explanation demonstrates that disclosure of name check results would create ‘the chance of a reasonably expected risk’ of circumvention of the law, which is all that Exemption 7(E) requires.” “Moreover, DCSA withholds name check records ‘[b]y agreement with the FBI,’ . . . an agency that ‘specializes in law enforcement’ and whose decision to invoke Exemption 7(E) is therefore ‘entitled to deference.’”  “[Plaintiff] does not contest [this] exemption, leaving no genuine dispute that [it was] properly invoked.”
   
• Litigation Considerations, Evidentiary Showing, “Reasonably Segregable” Showing:  The court holds that “defendants aver that DCSA conducted a ‘page-by-page and line-by-line’ segregability review in response to each of [plaintiff’s] requests . . . and [plaintiff] does not dispute the adequacy of the defendants’ efforts to segregate non-exempt records.”  “Therefore, there is no genuine dispute that DCSA satisfied FOIA’s segregability requirement.”