Schneider v. DOJ, No. 18-2294, 2020 WL 6318407 (D.D.C. Oct. 28, 2020) (Friedrich, J.)

Schneider v. DOJ, No. 18-2294, 2020 WL 6318407 (D.D.C. Oct. 28, 2020) (Friedrich, J.)

Re:  Request for records concerning plaintiff's 2003 CIA employment application

Disposition:  Granting defendants' second renewed motion for summary judgment

• Exemption 5, Deliberative Process Privilege:  "The government properly invoked Exemption 5's deliberative process privilege to withhold [a] criminal referral document."  "First, [the court finds that] the CIA's sworn declarations show that the criminal referral document was predecisional because it did not constitute a final decision by the CIA, but instead 'initiated and served as a preliminary step in DOJ's larger analysis as to whether or not a criminal investigation and/or prosecution was warranted.'"  "Second, [the court finds that] the declarations show that the document was deliberative because it 'represents an interim step in a much broader interagency process,' . . . and it 'indicates a preliminary determination by the CIA that a certain incident or activity merits further consideration by the DOJ.'"  "But the DOJ 'ultimately decides whether or not to open a criminal investigation based on information provided in the [document].'"  "In invoking Exemption 5, the government has demonstrated that revealing the contents of the document would 'inhibit the frank communications and the free exchange of ideas between federal agencies.'"
   
• Exemption 7(E):  "Because the government has sufficiently detailed both the information's law enforcement purpose and the risk that disclosure would circumvent the law, the CIA properly invoked FOIA Exemption 7(E) to withhold the criminal referral document."  "[S]pecifically, polygraph programs and techniques that the CIA uses to 'assess the suitability of applicants and current employees who may be entrusted with classified information' . . . ."  The court finds that "[t]his Circuit has recognized that '[b]ackground investigations conducted to assess an applicant's qualification . . . inherently relate to law enforcement.'"  The court also finds that "[t]hese programs and techniques 'are designed with an eye toward ensuring the protection of sensitive national security information and the workforce as a whole.'"  "As such, the criminal referral document contains information about 'the methods and techniques used by the [CIA] in screening applicants,' . . . and revealing its contents 'would tend to show what types of disclosures to the Agency are deemed problematic and what triggers the Agency's crimes reporting obligations.'"  "Disclosing the document also may enable 'future applicants and those with intent to harm the government [to] tailor their responses during polygraph sessions and screening interviews to circumvent security procedures.'"  "'These individuals could then make unauthorized disclosures of such information and cause serious harm to national security.'"
   
• Litigation Considerations, In Camera Inspection:  "[T]he Court denies [plaintiff's] request for in camera review" because "[t]he government has met its burden of establishing the exemptions' applicability with its sworn declarations."
   
• Litigation Considerations, "Reasonably Segregable" Requirements:  The court holds that "the CIA has satisfied its segregability obligations."  "While [plaintiff] does not contest the sufficiency of the segregability determination, the Court has an affirmative duty to consider whether the agency has complied with FOIA's segregability requirement."  The court relates that "the CIA submitted three sworn declarations, each of which represented that the CIA staff reviewed the criminal referral document and 'conducted a page-by-page, line-by-line review and released all non-exempt, reasonably segregable information.'"