Palmieri v. U.S., No. 12-1403, 2016 WL 3365375 (D.D.C. June 16, 2016) (Bates, J.)

Palmieri v. U.S., No. 12-1403, 2016 WL 3365375 (D.D.C. June 16, 2016) (Bates, J.)

Re: Request for records concerning investigation of plaintiff

Disposition: Granting in part and denying in part defendants' motion for summary judgment

• Litigation Considerations, Adequacy of Search:  The court holds that "[s]ummary judgment will be granted as to the searches by DOS, DSS, and OPM and as to the exemption claims by NCIS."  "But as to ONI's search and OPM's exemption claims, [plaintiff] has said enough to survive summary judgment for the time being."  First, the court finds that "DOS has provided a declaration that describes in great detail a search reasonably calculated to locate documents responsive to [plaintiff's] request" and that "[plaintiff's] speculative and unsupported 'missing' records argument thus fails to raise a material doubt about the adequacy of the search described in DOS's detailed declaration."  Second, the court finds that "DSS's declaration describes in detail a search reasonably calculated to locate responsive documents."  "DSS searched several databases containing information, like incident reports, integral to security clearance adjudications."  Additionally, "even accepting [plaintiff's] premise – that some responsive records remain 'missing' – his conclusion – that DSS's search is inadequate – does not necessarily follow."  Third, the court finds that "OPM is . . . entitled to summary judgment on the adequacy of its search."  The court finds that "OPM used [plaintiff's] personal identifiers to access the information in its various systems of records."  "Rather than develop any specific challenges to OPM's search methodology, [plaintiff] again complains only of 'missing' records."  The court finds that "it appears that some of [plaintiff's] 'missing' records are not actually missing" and, "even if some records are 'missing' from OPM's search results, that alone will not suffice to raise an issue of material fact regarding the adequacy of OPM's search."
  
  However, regarding the search conducted by ONI, the court finds that "ONI's declaration fails to describe those components [searched], their functions, the records they normally maintain, why they were selected for the search, or why others were excluded."  "Without such information, the Court cannot be sure that ONI's search methodology was a reasonable one."  "ONI similarly fails to 'set[ ] forth the search terms' it employed."
   
• Litigation Considerations, Vaughn Index/Declaration:  The court holds that "[it] currently lacks sufficient information to conclude that . . . redactions [taken by OPM] were properly applied."  The court relates that "OPM claims that its redactions on behalf of FinCEN are justified under FOIA exemption 3" in conjunction with "the Bank Secrecy Act."  However, while "'[r]eport[s] and records of reports' filed under the Bank Secrecy Act are indeed 'exempt from disclosure under [FOIA][,]'" the court finds that "OPM does not explain the relationship between the exempt BSA reports and the materials redacted in this case."  "Absent some explanation, the Court cannot grant summary judgment for the government on these claims."
   
• Litigation Considerations:  The court holds that "NCIS . . . is entitled to summary judgment" on plaintiff's arguments concerning NCIS's redactions because "[plaintiff] was instructed to specify 'exactly' those exemption claims that he wished to challenge" and, "[b]ecause [plaintiff's] opposition has not addressed NCIS's individual exemptions, he has effectively conceded their legality."  The court explains that "[plaintiff] would understandably prefer that the Court develop exemption challenges for him, after an in camera review of NCIS's forty-six page Vaughn index and the 700-plus pages of records."  "But this Court has no obligation to take on that project."