Whittaker v. DOJ, No. 18-01434, 2019 WL 2569915 (D.D.C. June 21, 2019) (Mehta, J.)

Whittaker v. DOJ, No. 18-01434, 2019 WL 2569915 (D.D.C. June 21, 2019) (Mehta, J.)

Re:  Request for complete record of plaintiff's 2007 background investigation report

Disposition:  Denying defendant's motion for summary judgment; denying plaintiff's cross-motion for summary judgment

• Exemption 7, Threshold:  The court notes that "Plaintiff concedes that information from a National Agency Check qualify as records compiled for a law enforcement purpose."
   
• Exemption 7(E):  The court rejects three of defendant's arguments.  First, the court finds that "[i]t is not evident how revealing whether the FBI has 'derogatory' information about a requester would disclose a law enforcement technique or procedure."  The court explains that "[d]isclosing the results of Plaintiff's National Agency Check would not necessarily reveal how the FBI 'goes about' collecting information returned from such inquiries."  Second, "[a]s for the assertion that 'the application of 7(E) here is itself a law enforcement technique or procedure,' . . . the court finds that position to be puzzling."  "The position is odd, to say the least, as the FBI now has disclosed the very technique or procedure it seeks to protect."  "The court is aware of no case, and Defendants cite none, for the proposition that the practice of categorically invoking a FOIA Exemption is itself protected from disclosure under Exemption 7(E)."  Third, the court finds that, "[t]o support the blanket invocation of Exemption 7(E), Defendants' declarant states: 'If the FBI were to disclose responses when no derogatory information is found during a [National Agency Check] and withhold only derogatory responses, a requester, or hostile criminal/foreign elements could quickly detect this pattern and through analysis, determine whether or not criminal or national security-related investigation exists based on the redactions asserted or lack thereof.'"  "This statement, however, does not make clear with 'reasonable specificity,' . . . 'what procedures are involved and how they would be disclosed' . . . ."  "Do National Agency Check results reference the technique or procedure themselves?"  "Might the results implicitly reveal the technique or procedure used to gather information?"  "Or could the results reveal the criteria or standards the FBI uses to place information in the National Agency Check database?"  "The declarant does not answer these types of questions.  "'[T]he agency must at least provide some explanation of what procedures are involved and how they would be disclosed.'"