Bakaj v. DHS, No. 19-1580, 2023 WL 6121822 (D.D.C. Sept. 19, 2023) (Berman Jackson, J.)

Bakaj v. DHS, No. 19-1580, 2023 WL 6121822 (D.D.C. Sept. 19, 2023) (Berman Jackson, J.)

Re:  Request for all DHS records of OIG’s investigation into whistleblower retaliation allegations plaintiff raised concerning certain CIA officials

Disposition:  Granting defendant’s motion for summary judgment

• Exemption 3:  The court relates that “[p]ursuant to Exemption 3, the government redacted ‘the names of OIG witnesses, specifically employees who provided information during the course of the DHS OIG Whistleblower investigation.’”  “The May 2022 Report of Investigation includes the titles of five Responsible Management Officials (‘RMOs’) who ‘engaged in substantiated whistleblower retaliation,’ and notes that four of their names are redacted pursuant to Exemption 3, among others.”  “The agency points to the Inspector General Act of 1978, as amended, 5 U.S.C. App. 3 (‘IG Act’), the National Security Act of 1947, as amended, 50 U.S.C. § 3024 (‘National Security Act’), and the Central Intelligence Agency Act of 1949, 50 U.S.C. § 3507 (‘CIA Act’), as the exempting statutes.”  “Plaintiff takes issue with the Exemption 3 redactions that omit the names of CIA officials with the title ‘RMO.’”  “He does not appear to dispute that these names would normally be exempted from disclosure by statute; rather, he ‘disputes that Exemption 3 protection still applies to at least three of the four RMOs given that their specific names and affiliations have previously been publicly acknowledged and/or authorized for public release.’”
  
  First, the court finds that “[t]he IG Act provides that the ‘Inspector General shall not, after receipt of a complaint or information from an employee, disclose the identity of the employee without the consent of the employee, unless the Inspector General determines the disclosure is unavoidable during the course of the investigation.’”  “This is the type of non-discretionary statutory language that Exemption 3 contemplates.”  “Because plaintiff does not dispute that the RMOs provided information to the Inspector General in the course of an investigation . . . and the record does not show that these individuals consented to the disclosure of their names, the Court finds that the redactions of the names of the four CIA officials are protected by the IG Act.”
  
  Second, the court finds that “[t]he National Security Act requires the Director of National Intelligence to broadly ‘protect intelligence sources and methods from unauthorized disclosure.’”  “Similarly, Section 6 of the CIA Act mandates that ‘[i]n the interests of the security of the foreign intelligence activities of the United States and in order further to implement section 3024(i) of this title . . . the Director of National Intelligence shall be responsible for protecting intelligence sources and methods from unauthorized disclosure,’ and therefore, ‘the Agency shall be exempted from . . . the provisions of any other law which require the publication or disclosure of the . . . names, official titles, salaries, or numbers of personnel employed by the Agency[.]’”  “These non-discretionary mandates to withhold certain information also comply with Exemption 3’s terms.”  “The government has shown that the information was withheld at the direction of the Director of National Intelligence, or someone with authority to identify and withhold national intelligence information.”  “The names of CIA officials fall within the scope of the National Security and CIA Acts, and therefore, the government may also rely upon these statutes to withhold records under Exemption 3.”
   
• Waiver and Discretionary Disclosure, Waiver:  The court finds that “the government has not waived its Exemption 3 claims, and disclosure of the redacted names cannot be compelled.”  “The Report of Investigation does list the titles of five ‘RMOs who engaged in substantiated whistleblower retaliation,’ . . . and it notes that the retaliation took place around April 2014.”  “But none of the sources plaintiff points to are from the agency itself: he has not shown that any ‘official and documented disclosure’ from the CIA or DHS ever occurred.”
   
• Litigation Considerations, In Camera Inspection:  The court relates that “plaintiff asks the Court to conduct an in camera review because ‘the agency declarations provided little beyond boilerplate assertions that a document-by-document and line-by-line review was conducted and that no reasonably segregable non-exempt information could be released.’”  “However, the government submitted a Vaughn Index from DHS OIG explaining why it withheld specific information on specific pages . . . and also provided affidavits from officials at DHS and the CIA describing why each exemption applied to the records.”  The court finds that “Plaintiff does not argue that there is a reason to suspect bad faith on the part of the government.”  “And his arguments as to the necessity of in camera review are unpersuasive in light of the level of detail contained in the Vaughn Index and the declarations.”  “Therefore, the Court finds in its discretion that in camera review is not necessary.”