Sack v. DOJ, No. 12-01755, 2015 WL 5996328 (D.D.C. Oct. 14, 2015) (Cooper, J.)

Sack v. DOJ, No. 12-01755, 2015 WL 5996328 (D.D.C. Oct. 14, 2015) (Cooper, J.)

Re: Request for records concerning polygraph program

Disposition: Granting remainder of defendant's renewed motion for summary judgment

• Exemption 2:  "[T]he Court will uphold the FBI's use of this exemption for these documents concerning the agency's selection processes."  The court relates that "[t]he FBI invoked this exemption to withhold documents 'relating to the selection process for FBI Polygraph Examiners.'"  The court finds that "an agency's hiring practices are distinct from its use of certain technologies, even if the hiring process at issue concerns potential operators of those technologies."  The court explains that "[u]nder Milner’s logic, documents concerning the use of certain technologies, such as polygraph techniques, by personnel would not be covered by this exemption."  "But documents relating to 'the selection' or 'placement' of employees–even those whose job descriptions require that they use those technologies later on–would be covered by Exemption (b)(2)."

• Exemption 5, Deliberative Process Privilege:  The court finds that "[b]ecause the withheld paragraph was generated by an agency department 'before agency policy was adopted' by the FBI Director, and because it reflects an exchange of ideas within the agency, in that its recommendation was not adopted, the FBI was justified in withholding this paragraph under Exemption (b)(5)."  The court relates that "[t]he FBI invoked this exemption to withhold a 'paragraph containing the recommendation of employees in the FBI's Security Division to the Director's Office about the feasibility of hiring non-agent polygraph examiners' as protected by the 'deliberative process' privilege."

• Exemption 7(E):  The court holds that "the FBI was justified in withholding these documents under Exemption (b)(7)(E)."  The court relates that "[t]he FBI invoked this exemption to withhold 'information about procedures and techniques used by FBI agents to conduct polygraph examinations.'"  The court finds that "[d]isclosing the procedures and techniques the FBI uses to conduct polygraph examinations would weaken their effectiveness at tracking and interpreting responses to questioning during such examinations, which would thereby weaken the effectiveness of polygraph examinations as a law enforcement tool."