Whittaker v. DOJ, No. 18-01434, 2020 WL 6075681 (D.D.C. Oct. 15, 2020) (Mehta, J.)

Whittaker v. DOJ, No. 18-01434, 2020 WL 6075681 (D.D.C. Oct. 15, 2020) (Mehta, J.)

Re:  Request for copy of plaintiff's background investigation

Disposition:  Granting defendants' renewed motion for summary judgment

• Exemption 7(E):  The court holds that "Defendants. . . have satisfied their burden under Exemption 7(E)."  The court finds that "[t]he FBI applies a categorical withholding policy in part because revealing the underlying information could compromise the techniques and procedures that produce that information."  "Even in cases where the National Agency Check results contain no derogatory information, a requester could discover that the FBI lacks the methods necessary to capture or track the requester's illicit behavior."  "If the FBI were to reveal any specific techniques or procedures associated with Plaintiff's results, Plaintiff would be made aware of those methods’ use as to his own activity, which would “reduce or nullify their effectiveness,' . . . ."  "Factoring in those legitimate concerns, the court believes Defendants have reasonably specified the types of techniques and procedures they intend to protect by withholding Plaintiff's results." 
   
  The court relates that "Plaintiff also contends that Defendants' invocation of Exemption 7(E) improperly 'entails a focus on information rather than the techniques of gathering it,' the latter being the true subject matter covered by the exemption."  "But that argument misunderstands the logic behind Defendants' theory of withholding."  "The information revealed in the name check results – derogatory or otherwise – would allow requesters and others 'to evaluate, based on the types of criminal behavior they are/were engaged in, the existence of particular FBI investigative techniques/procedures capable of detecting certain violations of criminal or national security laws and/or the limitations of its investigative techniques and procedures for gathering particular evidence.'"
   
  Regarding defendants' mosaic theory, the court relates that "Defendants assert that disclosing name check results 'could reveal key information about the FBI's strategic distribution of its limited investigative resources.'"  "'Even if an individual name check result might seem innocuous, when pieced together with other name check results, inferences drawn from those results, and associated bits of information, a picture can start to form about how the FBI uses its resources.'"  The court finds that "[a]lthough the court is not in a position to assess with precision the likelihood of Defendants' asserted harms, it is satisfied that Defendants have demonstrated some chance that disclosure of Plaintiff's name check results risks circumvention of the law via a mosaic effect."