Haleem v. DOD, No. 23-1471, 2024 WL 5159073 (D.D.C. Dec. 18, 2024) (Boasberg, J.)
Haleem v. DOD, No. 23-1471, 2024 WL 5159073 (D.D.C. Dec. 18, 2024) (Boasberg, J.)
Re: Request for records concerning defendant’s revocation of plaintiff’s security clearance
Disposition: Granting in part and denying in part defendant’s motion for summary judgment; granting in part and denying in part plaintiff’s motion for summary judgment
- Litigation Considerations, Exhaustion of Administrative Remedies: “Turning first to the search, [the court relates that] Plaintiff admits that he ‘did not explicitly appeal the adequacy of the [Defendants’] search’ in his 2023 request.” “He nevertheless argues that since Defendants denied his request as duplicative and would have given him the same response regardless of whether he had included the search explicitly in this request, his omission is immaterial, and he has thus exhausted his administrative remedies as to the search.” “[Plaintiff] himself acknowledges the weakness of this argument, noting that his omission of the search in his request ‘means . . . he potentially might not be able to challenge the adequacy of the search before this Court.’” “He is correct.” “Plaintiff’s initial 2023 request stated only that he was seeking ‘[t]he 113 pages that have been withheld’ and ‘a review of the redactions asserted by INSCOM,’ and his appeal simply restated his desire for the 113 pages.” “Defendants were therefore never put on notice of any issues with their search before this suit.” “The Court will thus abstain from reviewing the sufficiency of the Government’s records search.”
“[Plaintiff] fares better in seeking to appeal the Department’s claimed withholdings.” “Defendants assert that while Plaintiff did timely appeal his 2023 request for the withheld and redacted documents, it was a duplicative request, and appeals of such requests can be reviewed only to assess their similarity to the original request, not their merits.” “[Plaintiff] did not submit a timely appeal following the Department’s 2022 decision but instead, a year later, filed a duplicative request for the withheld and redacted documents.” “Defendants were then given an opportunity to review their withholdings and redactions, which they did not do, and instead denied the request without acting.” “Plaintiff appealed that decision, but the agency again declined to review its withholdings.” “He has thus exhausted his administrative remedies in relation to his 2023 request, and his claims can be assessed on the merits.”
- Exemption 7(E): First, the court relates that defendant states “that it invoked Exemption 7(E) because the records identify ‘the specific counterintelligence investigative methods, technique[s] and procedures employed during the conduct of a National Security Crime investigation[ ],’ as well as ‘specific intelligence techniques and targets.’” The court finds that “[defendant] declared that the pages detailed procedures and techniques used for law-enforcement purposes, and – after conducting an in camera review of the 113 pages at issue – the Court confirms that this is true regarding the majority of the documents.” “The following pages, however, do not regard such procedures or techniques but are also non-responsive: 1–4, 9–12, and 80–88.”
Second, the court finds that “[t]o withhold the other 96 pages, the Government must also prove that the release of the documents creates a risk of circumvention of the law.” The court relates that, “[a]ddressing circumvention, . . . Defendants state that the disclosure of this material would ‘compromise . . . the sensitive intelligence source[s] and methods as outlined in [the] Army Security Classification guidelines’ and therefore ‘allow individual[]s and foreign intelligence entities to circumvent U.S. laws and efforts to protect national security information.’” “[T]he Court’s in camera review . . . supports DOD’s assertion that all responsive pages expose the information that Defendants gather and how it is evaluated when investigating suspicious activity.” “The Court thus agrees that releasing this material would create a risk of circumvention of the law and that the invocation of Exemption 7(E) is therefore warranted.”
Finally, the court notes that “[u]nder a 2016 amendment to the [FOIA], an agency may not withhold materials even if they are exempt unless it ‘reasonably foresees that disclosure would harm an interest protected by’ a FOIA exemption.” “In Exemption 7(E) cases, however, courts have held that ‘because the exemption already requires a showing of risk of circumvention of the law, no further foreseeable-harm analysis is necessary.’” “The Court thus finds that DOD fulfills the foreseeable-harm requirement.”
- Litigation Considerations, Evidentiary Showing, “Reasonably Segregable” Showing: The court holds that, “[a]fter reviewing the material in camera, the Court finds that no further non-exempt information must be released from the remaining 96 responsive pages in question.” “These pages detail the information that DOD compiles in investigations into suspicious activity, and their release in any part would illuminate the material that the Department assesses when examining a threat to national security.”
- Litigation Considerations, Mootness and Other Grounds for Dismissal: The court relates that “[plaintiff] next asks the Court to find that [the Army Intelligence and Security Command’s] referral of 33 responsive pages to [the Army Reserve Command] for review in 2022 was ‘botched’ and order that he receive attorney fees as compensation.” The court finds that “all 33 pages have either been released to Plaintiff or appropriately withheld as discussed above.” “Any claim related to the 2022 records is thus moot.”