STEIN v. CENTRAL INTELLIGENCE AGENCY et al

Filing 101

MEMORANDUM OPINION re: Defendants' 94 Motion for Summary Judgment and Plaintiff's 96 Cross Motion for Summary Judgment. Signed by Judge Tanya S. Chutkan on 09/26/2024. (lcc)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JEFFREY STEIN,
Plaintiff,
v.

Civil Action No. 17-189 (TSC)

CENTRAL INTELLIGENCE AGENCY,
et al.,
Defendants.
MEMORANDUM OPINION
Plaintiff Jeffrey Stein brought this action under the Freedom of Information Act
(“FOIA”), 5 U.S.C. § 552, et seq., challenging certain responses to a series of FOIA requests he
submitted to nine federal agencies (collectively, “Defendants”): Central Intelligence Agency
(“CIA”), Department of Justice (“DOJ”), Department of Defense (“DOD”), Office of Personnel
Management (“OPM”), Office of the Director of National Intelligence (“ODNI”), Department of
Education (“Education”), Department of State (“State”), and Department of Commerce
(“Commerce”). The parties have cross-moved for summary judgment. For the reasons set forth
below, the court will GRANT Defendants’ motion, and DENY Plaintiff’s.
I.

BACKGROUND

The court has already described most of the relevant background for this case. See Stein
v. CIA, 454 F. Supp. 3d 1 (D.D.C. 2020) (ECF No. 45). In short, Plaintiff requested records
under FOIA from Defendants “related to Donald Trump’s presidential campaign and presidential
transition,” including “information related to background investigations of fifteen individuals
reportedly under consideration for senior positions in the Trump administration”: “Stephen
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Bannon, Pamela Bondi, Betsy DeVos, Carly Fiorina, Gen. Michael Flynn, Michael Flynn, Jr.,
Rudolph Giuliani, Jared Kushner, James Mattis, Gen. David Petraeus, Wilbur Ross, Jr., Rex
Tillerson, Donald Trump, Jr., Eric Trump, and Ivanka Trump.” Id. at 10. Then, dissatisfied with
Defendants’ responses to his request, Plaintiff brought this action. Id. at 13.
This is the third round of summary judgment motions. Only three issues remain. The
first is whether State properly withheld portions of a single page in an “Adjudicative Analysis
Worksheet” related to Rex Tillerson’s security background investigation. After the prior round
of briefing, the court ordered State to submit that page ex parte for the court’s in camera review.
See Stein v. CIA, 2023 WL 6388946, *3 (D.D.C. Sept. 29, 2023) (ECF No. 89). The two other
issues are “whether [ODNI] conducted a proper segregability analysis of 31 pages that were
referred by [CIA] to ODNI, which withheld them in full” and “whether the [FBI] properly
applied FOIA Exemptions 6 and 7(C) to records regarding General Michael Flynn and Stephen
Bannon.” Defs.’ Mot. for Summary Judgment at 1, ECF No. 94 (“Defs.’ MSJ”); see Pl.’s Opp’n
to Defs.’ Mot. for Summary Judgment and Cross-Mot. for Summary Judgment at 1–2, ECF No.
96 (“Pl.’s Cross-MSJ”).
II.

LEGAL STANDARD

In FOIA litigation, as in all civil cases, summary judgment is appropriate when the
pleadings and declarations demonstrate that there is no genuine issue of material fact, and the
moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “FOIA provides a ‘statutory right of public
access to documents and records’ held by federal government agencies.” Citizens for Resp. &
Ethics in Wash. v. U.S. Dep’t of Justice, 602 F. Supp. 2d 121, 123 (D.D.C. 2009) (quoting Pratt
v. Webster, 673 F.2d 408, 413 (D.C. Cir. 1982)). The Act requires federal agencies to comply
with requests to make their records available to the public unless such “information is exempted
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under [one of nine] clearly delineated statutory [exemptions].” Id. (internal quotation marks
omitted); see also 5 U.S.C. §§ 552(a)–(b). In reviewing a motion for summary judgment under
FOIA, the court must view the facts in the light most favorable to the requester. See Weisberg v.
U.S. Dep’t of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984). Summary judgment in FOIA cases
may be based solely on information provided in an agency’s supporting affidavits or declarations
if they are “relatively detailed and nonconclusory.” SafeCard Servs., Inc. v. U.S. Sec. & Exch.
Comm’n, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (internal quotation and citation omitted). These
declarations are “accorded a presumption of good faith, which cannot be rebutted by purely
speculative claims about the existence and discoverability of other documents.” Id. (internal
quotation and citation omitted). “To successfully challenge an agency’s showing that it
complied with the FOIA, the plaintiff must come forward with specific facts demonstrating that
there is a genuine issue with respect to whether the agency has improperly withheld . . . records.”
Span v. U.S. Dep’t of Justice, 696 F. Supp. 2d 113, 119 (D.D.C. 2010) (citing U.S. Dep’t of
Justice v. Tax Analysts, 492 U.S. 136, 142 (1989)) (quotation marks omitted).
III.

DISCUSSION

Defendants have complied with their statutory obligations. State and FBI have
sufficiently justified the redactions that Plaintiff challenges, and ODNI conducted an adequate
and consistent segregability analysis. There is no reason for the court to order any further review
or production with respect to Plaintiff’s FOIA requests, and Defendants are entitled to judgment
as a matter of law.
A. State’s redactions
State properly redacted portions of the Adjudicative Analysis Worksheet page related to
Rex Tillerson’s security background investigation. The redacted portions at issue include (1) a
description of “the level of background investigation conducted, the agency that conducted it,
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and the timing of that investigation”; (2) “the [security clearance] recommendation itself”; and
(3) “a sentence below the [security clearance] recommendation related to ineligible
recommendations.” Supp. Decl. of Carlos F. Matus ¶¶ 11–13, ECF No. 77-5. Defendants
withheld those portions under FOIA Exemptions 6 and 7(C). Exemption 6 permits withholding
of “personnel and medical files and similar files” if they “would constitute a clearly unwarranted
invasion of personal privacy.” 5 U.S.C. § 552(b)(6). Exemption 7(C) permits withholding
records “compiled for law enforcement purposes” that “could reasonably be expected to
constitute an unwarranted invasion of personal privacy.” Id. § 552(b)(7)(C). The parties’
dispute is not whether the withheld records fall into categories covered by the exemptions, but
rather whether any privacy interests therein outweigh the public interest in disclosure. See Stein,
454 F. Supp. 3d at 33.
The court’s in camera review confirms State’s assertions about the substantial privacy
interests that could be implicated by information in the page’s redacted fields. Those fields
could contain not only information revealing “the extent to which the agency viewed the
applicant as a security risk,” but also “anything in the applicant’s background investigation
identified as a potential security concern.” Supp. Decl. of Carlos F. Matus ¶¶ 11, 13. For
example, that information could include an applicant’s criminal history, which implicates “a
strong privacy interest,” U.S. Dep’t of Just. v. Reps. Comm. For Freedom of Press, 489 U.S. 749,
766 (1989), or their “psychological conditions, alcohol consumption, [and] sexual behavior,”
which is likewise subject to a “pronounced privacy interest,” Jud. Watch, Inc. v. U.S. Dep’t of
State, 282 F. Supp. 3d 36, 44–45 (D.D.C. 2017). These interests go beyond identifying an
applicant’s “actions and whereabouts” such that they could receive “unwanted attention or
harassment.” Stein, 454 F. Supp. at 33 (quotation omitted). Notably, the range of sensitive

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information that could be in those fields is as important as the information actually in former
Secretary of State Tillerson’s application (if any). If State only redacted the fields when that
kind of sensitive information was present, the fact of redaction itself would confirm the
information’s presence. State’s practice of redacting them in all cases protects important privacy
interests, regardless whether those interests are at stake in Tillerson’s application here.
The public interest in disclosure of those fields, while not insignificant, does not
outweigh the privacy interests at stake. “State’s participation in the security clearance process,”
including whether it identified “any issues of adjudicative concern,” id. at 33, could in theory
contribute to some general “public understanding of the operations or activities of the
government,” id. at 19 (quoting United States Dep’t of Defense v. Fed. Labor Relations Auth.,
510 U.S. 487, 495 (1994)). But any public interest tied to Tillerson’s appointment as Secretary
of State has diminished substantially in the eight years since Plaintiff’s FOIA request in 2016.
Plaintiff originally emphasized the public interest in knowing—as Tillerson was being
considered for the position—whether there were “concerns about granting him access to
information classified in the interests of national security.” Decl. of Eric F. Stein, Exh. 10, at 2,
ECF No. 22-12 (PDF page 56). It has now been years since Tillerson held that office or
possessed its accompanying access to classified documents. “The public’s interest, at this point,
is diminished” accordingly. Braga v. F.B.I., 910 F. Supp. 2d 258, 268 (D.D.C. 2012). On
balance, it does not compel disclosure of the fields that State redacted.
B. ODNI’s segregability analysis
ODNI conducted an adequate segregability analysis for the 31 pages that the CIA
referred to it for review. The court has already decided that the pages are facially covered by
Exemption 6, so all that remains in dispute is whether they contain “any non-exempt, reasonably
segregable information.” Stein, 454 F. Supp. 3d at 30–31. Defendants have produced
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declarations averring that ODNI “reviewed each line of each page of the 31 pages,” which
include the following: “Five pages of . . . blank, unfilled-out personnel or . . . search forms with
blank fillable fields,” “four pages of . . . nearly-blank personnel or . . . search forms” only
containing “personally identifiable information,” and twenty-two pages that “contain only two
types of information: . . . personal identifying information” and “information about previously
granted security clearances, such as effective dates and level for any such clearance.” 1st Decl.
of Gregory M. Koch ¶ 7, ECF No. 85-2; see 2nd Decl. of Gregory M. Koch ¶¶ 5–7, ECF No. 942. These declarations fully comply with the agency’s duty to “describe what proportion of the
information in a document is non-exempt and how that material is dispersed throughout the
document.” Stein, 454 F. Supp. 3d at 31 (quoting Mead Data Cent., Inc. v. United States Dep’t
of the Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977)).
Plaintiff’s critique of ODNI’s segregability analysis rests on the fact that the 31 withheld
pages contain “blank, unfilled-out . . . forms” and “blank fillable fields.” In his view, those
blank portions are segregable and should be disclosed. Moreover, he contends that the existence
of those blank portions impeaches the declarants’ statements that the 31 pages contain only “two
types of information”—“personally identifiable information and associated information about
security clearances.” Pl.’s Cross-MSJ at 2. Both of those arguments fail for the same
fundamental reason: Blank spaces contain no information. 1 “Since the focus of the FOIA is
information,” if a document is otherwise covered by a FOIA exemption, an agency need not
separate out its fragments with “minimal or no information content.” Mead Data Cent., Inc., 566

1

There may be instances in which the very fact of a government record being blank could reveal
meaningful information—for example, that an agency failed to complete required sections of a
form, or never articulated reasons for an action that it took, or lacked an authorizing signature.
But Plaintiff has not made any argument of that kind here, and the court sees no basis for one.
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F.2d at 261; see Bartko v. United States Dep’t of Just., 128 F. Supp. 3d 62, 74 (D.D.C. 2015)
(“In order to be considered reasonably segregable, the information, if disclosed, must have some
meaning.”), aff’d in part, rev’d in part on other grounds, 898 F.3d 51 (D.C. Cir. 2018).
Similarly, stating that the 31 pages contain only “two types of information” is entirely consistent
with the pages also containing blank forms and fields—i.e., the absence of information. ODNI’s
segregability analysis was therefore adequate, and the presumption of its good faith remains
unrebutted. See SafeCard Servs., Inc., 926 F.2d at 1200.
C. FBI’s withholding under Exemptions 6 and 7(C)
Finally, the FBI permissibly applied Exemptions 6 and 7(C) to withhold portions of
records related to the background investigations of Stephen Bannon and General Michael Flynn.
At issue are redactions of personally identifying information in the Bannon case file. See Defs.’
MSJ at 7–8. Plaintiff argues that “the date and place of Steve Bannon’s birth” should not have
been redacted because that information is already publicly available. Pl.’s Cross-MSJ at 4 (citing
that information in the Encyclopedia Britannica). It is true that a privacy interest may “fade
when the information involved already appears on the public record, . . . such as the date of
[someone’s] birth,” but that “does not mean that it should receive widespread publicity if it does
not involve a matter of public concern.” Reps. Comm. For Freedom of Press, 489 U.S. at 763
n.15 (quotation omitted); see Pinson v. U.S. Dep’t of Just., 202 F. Supp. 3d 86, 105 n.6 (D.D.C.
2016) (“Of course, the fact that information is already a matter of public record does not
necessarily preclude a FOIA exemption from applying.”). Plaintiff does not articulate any public
interest in Bannon’s date and place of birth, nor explain how that interest would be served by
disclosing that information here—particularly if, as he notes, it could be found by searching
elsewhere. As a result, even the relatively weak privacy interests at stake here tilt toward
withholding under Exemptions 6 and 7(C).
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IV.

CONCLUSION

For these reasons, the court will GRANT Defendants’ Motion for Summary Judgment,
ECF No. 94, and DENY Plaintiff’s Cross Motion for Summary Judgment, ECF No. 96. A
corresponding order will accompany this Memorandum Opinion.

Date: September 26, 2024

Tanya S. Chutkan
TANYA S. CHUTKAN
United States District Judge

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