SACK v. DEPARTMENT OF JUSTICE
MEMORANDUM OPINION AND ORDER: it is herebyORDERED that what remains of Defendants renewed Motion for Summary Judgment is GRANTED. Signed by Judge Christopher R. Cooper on 10/14/2015. (tcr)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Case No. 1:12-cv-01755 (CRC)
DEPARTMENT OF JUSTICE,
ORDER AND OPINION
In its April 23, 2015 Order [ECF No. 43], this Court granted in part and denied in part
Defendant Department of Justice’s (“DOJ”) renewed Motion for Summary Judgment, and
directed the FBI to conduct additional searches for documents responsive to Plaintiff Kathryn
Sack’s FOIA request for records related to the agency’s polygraph program. The Court also
reserved ruling on the FBI’s invocation of FOIA Exemptions (b)(2), (b)(5), and (b)(7)(E) to
withhold documents from production to Plaintiff. Following that Order, DOJ submitted a
supplemental memorandum in support of its Motion for Summary Judgment on June 22, 2015,
noting that it had conducted the searches and released to Plaintiff the documents they yielded.
Not having received a response from Plaintiff after six weeks, the Court issued an Order on
August 7, 2015, directing Plaintiff to show cause why the remaining claims against DOJ should
not be dismissed. In Plaintiff’s response to that Order, she explained that she does not oppose
DOJ’s arguments set forth in its supplemental memorandum and that she is “satisfied for the
most part” with the FBI’s supplemental search and release of documents. However, she
maintains her previous objections to the FBI’s reliance on the three exemptions. Because the
FBI properly invoked those exemptions, and because Plaintiff sets forth no other objections, the
Court will grant what remains of DOJ’s renewed motion for summary judgment.
FBI’s Invocation of FOIA Exemption (b)(2)
FOIA Exemption (b)(2) provides that agencies responding to FOIA requests need not
make available to the public information “related solely to the internal personnel rules and
practices of an agency.” 5 U.S.C. § 552(b)(2). The FBI invoked this exemption to withhold
documents “relating to the selection process for FBI Polygraph Examiners.” Def.’s Suppl. Mem.
Supp. Mot. Summ. J. 7. The agency contends that the information therein does not concern use
of polygraphs, Def.’s Reply Supp. Suppl. Mem. 9, and instead “pertains to administrative matters
of interest only to FBI employees,” Def.’s Suppl. Mem. Supp. Mot. Summ. J. 7. Plaintiff
counters that, in an earlier ruling, this Court concluded that the Bureau of Alcohol, Tobacco,
Firearms and Explosives could not invoke the same exemption to withhold documents
concerning how it uses polygraph techniques to screen job applicants, and that by the same
reasoning, the FBI cannot withhold “how it chooses the examiners responsible” for
implementing such polygraph techniques. Pl.’s Resp. Def.’s Suppl. Mem. 6–7.
But 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 key word” in
Exemption (b)(2) “is ‘personnel.’” Milner v. Dep’t of the Navy, 562 U.S. 562, 569 (2011). The
term “refers to human resources matters,” such as “the selection, placement, and training of
employees.” Id. (quoting Webster’s Third New International Dictionary 1687 (1966)) (internal
quotation mark omitted). In Milner, the Supreme Court distinguished between use of techniques
or implementation of agency policy by personnel on the one hand, and matters concerning hiring
of and benefits for personnel on the other. The Court rejected an attempt to shield under this
exemption documents of the Department of the Navy containing data that “assists Navy
personnel in storing munitions.” Id. at 578. The Court reasoned that the modifier “personnel”
limits the scope of the exemption to information not just “for personnel,” but “about
personnel”—in other words, “that [which] relates to employee relations or human resources.” Id.
Under Milner’s logic, documents concerning the use of certain technologies, such as
polygraph techniques, by personnel would not be covered by this exemption, as this Court
concluded in its previous Order. 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). Id. at 569. Accordingly, the Court will uphold the
FBI’s use of this exemption for these documents concerning the agency’s selection processes.
FBI’s Invocation of FOIA Exemption (b)(5)
FOIA Exemption (b)(5) protects “inter-agency or intra-agency memorandums or letters
which would not be available by law to a party other than an agency in litigation with the
agency.” 5 U.S.C. § 552(b)(5). In other words, agencies may withhold, under this exemption,
documents that “satisfy two conditions: [their] source [is] a Government agency, and [they] fall
within the ambit of a privilege against discovery under judicial standards that would govern
litigation against the agency that holds [them].” Dep’t of the Interior v. Klamath Water Users
Protective Ass’n, 532 U.S. 1, 8 (2001). The 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. Def.’s Suppl. Mem. Supp. Mot. Summ. J. 10.
The deliberative process privilege “covers ‘documents reflecting advisory opinions,
recommendations, and deliberations comprising part of a process by which governmental
decisions and policies are formulated.’” Klamath Water Users, 532 U.S. at 8 (quoting NLRB v.
Sears, Roebuck & Co., 421 U.S. 132, 150 (1975)). Such documents must be “both ‘pre-
decisional’ and ‘deliberative.’” Judicial Watch, Inc. v. U.S. Dep’t of the Treasury, 796 F. Supp.
2d 13, 25 (D.D.C. 2011) (quoting Judicial Watch, Inc. v. FDA, 449 F.3d 141, 151 (D.D.C.
2006)). The protection rests on the recognition “that officials will not communicate candidly
among themselves if each remark is a potential item of discovery and front page news, and its
object is to enhance ‘the quality of agency decisions,’ by protecting open and frank discussion
among those who make them within the Government.” Id. at 8–9 (citation omitted) (quoting
Sears, Roebuck, 421 U.S. at 151).
The government argues that the recommendation “was not adopted or implemented by
the FBI,” and thus that it was pre-decisional and deliberative, and its disclosure would
“discourage candid discussion within the agency in the future.” Def.’s Suppl. Mem. Supp. Mot.
Summ. J. 10. Ms. Sack counters that the withheld paragraph does not reflect mere deliberation
as described by the FBI, but rather “states the official position of the entire FBI Polygraph
Program,” which renders it “post-decisional” with respect to that Program. Pl.’s Resp. Def.’s
Suppl. Mem. 7.
The FBI is correct. The “deliberative process privilege is intended to protect ‘the
decision making processes of government agencies,’” not merely of agency departments
generating recommendations for agency directors. Judicial Watch, 796 F. Supp. 2d at 25
(emphasis added) (quoting Judicial Watch, Inc. v. Dep’t of Justice, 365 F.3d 1108, 1113 (D.C.
Cir. 2004)). A document is “pre-decisional if it was generated before agency policy was adopted
and deliberative if it ‘reflects the give and take of the consultative process.’” Id. (quoting
Judicial Watch, 449 F.3d at 151). Because 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).
FBI’s Invocation of FOIA Exemption (b)(7)(E)
FOIA Exemption (b)(7)(E) protects
records or information compiled for law enforcement purposes, but only to the
extent that the production of such . . . records or information . . . would disclose
techniques and procedures for law enforcement investigations or prosecutions, or
would disclose guidelines for [such actions] if such disclosure could reasonably be
expected to risk circumvention of the law.
5 U.S.C. § 552(b)(7)(E). The FBI invoked this exemption to withhold “information about
procedures and techniques used by FBI agents to conduct polygraph examinations.” Def.’s
Suppl. Mem. Supp. Mot. Summ. J. 14. In support, the government contends that disclosing this
information “could reasonably be expected to risk circumvention of the law” under the
exemption because it would have the potential to allow deduction of patterns or methods the FBI
uses to implement polygraphs as law enforcement tools. In her response to DOJ’s supplemental
memorandum in support of its motion for summary judgment, Sack objects to use of this
exemption on the ground that the FBI’s definition of a reasonable risk of circumvention of the
law is overbroad.
As the government points out, “Exemption 7(E) sets a ‘low bar for the agency to justify
withholding.’” Citizens for Responsibility and Ethics in Wash. v. U.S. Dep’t of Justice, 746 F.3d
1082, 1102 (D.C. Cir. 2014) (quoting Blackwell v. FBI, 646 F.3d 37, 42 (D.C. Cir. 2011)). The
D.C. Circuit has upheld use of Exemption 7(E) to protect from disclosure the CIA’s security
clearance procedures because it was “self-evident that information revealing [such] procedures
could render those procedures vulnerable and weaken their effectiveness at uncovering
background information on potential candidates.” Morley v. CIA, 508 F.3d 1108, 1129 (D.C.
Cir. 2007). So too here. Disclosing 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. Accordingly, the FBI was justified in
withholding these documents under Exemption (b)(7)(E).
For the foregoing reasons, it is hereby
ORDERED that what remains of Defendant’s renewed Motion for Summary Judgment
CHRISTOPHER R. COOPER
United States District Judge
October 14, 2015
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