Sack v. DoD, No. 12-cv-1754, 2013 WL 6640776 (D.D.C. December 13, 2013) (Wilkins, J.)

Date: 
Friday, December 13, 2013
Re: Requests for records concerning defendants' polygraph programs Disposition: Granting defendant's motion for summary judgment
  • Litigation Considerations, Adequacy of Search:  The court holds that "[defendant] met its FOIA obligations to conduct a reasonable and adequate search for potentially responsive records."  The court finds that "the four corners of [plaintiff's] request clearly limited the scope of records she was seeking to records maintained by the Office of Security."  The court also finds that "[defendant] avers that [it] consulted with 'senior leaders' in the Office of Security, and that those leaders confirmed the Office of Security does not maintain aggregate data."  Additionally, the court finds that "[defendant] confirmed that despite [its] inclusion of the phrase 'such as' in [its] original declaration, the search terms [defendant] listed consisted of the entire universe of terms used during [defendant's] electronic review."
  • Exemption 7(E):  Defendant invoked Exemption 7(E) to withhold "Quality Assurance Program Inspection Reports ('QAP Reports')."  The court finds that "[defendant] maintains that 'disclosure of this particular information could diminish the effectiveness of polygraph examination as an investigative tool.'"  Defendant explained that the purpose of "'examining the polygraph programs of other agencies'—and, in turn, in creating these QAP Reports—'was to identify the potential weaknesses or vulnerabilities that may allow bad actors to fool that agency and conduct illegal activities without detection.'"  As DIA explains "'[i]f this information [were] disclosed to the general public, ... a determined bad actor could identify agencies with greater polygraph program vulnerabilities' that 'could then be exploited.'"  The court "agrees that this explanation satisfies Exemption 7(E)'s standards to justify DIA's withholdings."
  • Fees and Fee Waivers, Requester Category:  The court rejects plaintiff's argument that "[defendant] improperly refused to classify her as an 'educational institution' requester for purposes of FOIA's fee provisions."  The Court "finds that [plaintiff] did not sufficiently establish she was acting on behalf of the University's Department of Politics through her requests, or that she was seeking the requested information in furtherance of the University's scholarly goals."  The court finds that "[plaintiff's] original proffer to [defendant]—essentially consisting of her own, conclusory assertion that her requests fell under the 'educational institution' category . . . –was plainly inadequate."  The court also finds that a subsequent letter written by a University professor "was wholly conclusory—while he asserted that [plaintiff's] request was 'on behalf of the institution,' he did not specify that the request was being used to support a research project being carried out by him, any other professor, or any department of the university."
  • Fees and Fee Waivers, Fees:  The court finds that "[n]othing in the FOIA precludes an agency from first requiring that the payment and scope of a request be clear before any search is conducted."  The court notes that "[p]laintiff does not dispute that she refused to either pay fees or commit to making any payment on the requests at issue."
Topic: 
Adequacy of Search
District Court
Exemption 7E
Fees and Fee Waiver
Litigation Considerations
Updated August 6, 2014