Davis v. U.S. Department of the Air Force

Filing 24

ORDER granting 19 Motion for Summary Judgment. Signed by Judge Brian Morris on 2/8/2016. (SLL, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
GREAT FALLS DIVISION

KENNETH RUSSELL DAVIS JR.,
CV-15-68-GF-BMM

Plaintiff,
vs.

UNITED STATES DEPARTMENT
OF THE AIR FORCE,

ORDER

Defendant.

Plaintiff Kenneth Russell Davis Jr., filed a complaint under the Freedom of
Information Act (“FOIA”), 5 U.S.C. § 552, to order Defendant U.S. Department of
the Air Force (the “Air Force”) to produce documents concerning an investigation
of Davis. The Air Force Office of Special Investigations (“AFOSI”) investigated
Davis after having received a complaint that alleged that Davis had engaged in
espionage against the United States Government.
Davis filed a request to review a classified Seven Surfers
Counterintelligence Note (“the Note”) on May 15, 2014. Davis claims that the
information in the Note proves critical to prosecute a State District Court case
against Thomas Missel and Jennifer Missel. Davis claims that Thomas and Jennifer
Missel falsely made allegations that Davis had engaged in espionage against the
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United States Government. AFOSI declined to produce the documents on the basis
that the information should be exempt from release under two FOIA exemptions.
The Air Force filed a motion for summary judgment (Doc. 19.)
FOIA seeks to permit access to official information and “attempts to create a
judicially enforceable public right to secure such information from possibly
unwilling hands.” John Doe Agency v. John Doe Corp, 493 U.S. 146, 151 (1989).
Disclosure represents the “dominant objection” of the Act, but several exemptions
to disclosure exist. Id. at 152. The Court should construe these exemptions
narrowly. Id. The Air Force carries the burden to prove de novo that the
information sought fits under one of the exemptions to disclosure under FOIA.
Vaughn v. Rosen, 484 F.2d 820, 823 (D.C. Cir. 1973). The Air Force claims that
the information sought proves exempt under 5 U.S.C. §§ 522(b)(1) and (b)(7)(E).
FOIA exemption § 522(b)(1) provides that an agency does not have to
disclose matters “specifically authorized under criteria established by an Executive
order to be kept secret in the interest of national defense or foreign policy.” The
matter must be classified pursuant to the Executive order. 5 U.S.C. § 522(b)(1).
The Air Force claims that Executive Order 13526 issued by President Barack
Obama on December 29, 2009, provides the basis for protection to the Note. (Doc.
14 at 4.) Courts have recognized the “propriety of deference to the executive in the

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context of FOIA claims which implicate national security.” Ctr. for Nat. Sec. Stud.
v. U.S. Dept. of Justice, 331 F.3d 918, 927 (D.C. Cir. 2003).
FOIA exemption 5 U.S.C. § 522(b)(7)(E), exempts from disclosure “records
or information compiled for law enforcement purposes” to the extent that the
records “would disclose techniques and procedure for law enforcement
investigations or prosecutions, or would disclose guidelines for law enforcement
investigations or prosecutions if such disclosure could reasonably be expected to
risk circumvention of the law.” AFOSI acts as a federal law enforcement agency,
in addition to its counterintelligence obligations. (Doc. 14.) AFOSI claims that it
uses the Seven Surfers Project to “gather information about subjects of criminal
investigations.” (Doc. 14 at 3.) AFOSI asserts that public knowledge of the
information that it collects would “frustrate counterintelligence, counterterrorism
and criminal investigation missions at AFOSI.” Id.
Davis does not dispute that the Court should grant summary judgment for
the Air Force. (Doc. 22 at 1.) Davis agrees that summary judgment proves
appropriate based on the declarations and administrative record submitted by the
Air Force. Id. The information withheld by the Air Force should be protected under
5 U.S.C. §§ 552(b)(1) and (b)(7)(E).
Davis seeks instead for the Court to enter a finding, as a matter of law, that
AFOSI conducted an investigation into the espionage claims against Davis and
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found the claims groundless. Id. at 2. Davis cites no authority in support of his
request. The Air Force submitted a redacted version of the Note which indicates
that AFOSI’s investigation of Davis revealed that “no information concerning the
removal of classified documents was found.” (Doc. 14-1 at 1.) Davis has submitted
a report which indicates that an AFOSI investigated the espionage claim and found
the allegations to be “groundless.” (Doc. 23-2.) Davis argues that these documents
demonstrate that the espionage claims have no merit.
Davis clearly has access to these documents. Davis may present these
documents in his state court lawsuit. The trier of fact in that matter may consider
these documents to determine whether the espionage allegations were
“groundless.”
Accordingly, IT IS ORDERED that Defendant’s Motion for Summary
Judgment (Doc. 19) is GRANTED. The Clerk of Court shall enter Judgement
accordingly.
DATED this 8th day of February, 2016.

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