Sack v. CIA, No. 12-244, 2014 WL 3375568 (D.D.C. July 10, 2014) (Sullivan, J.)

Sack v. CIA, No. 12-244, 2014 WL 3375568 (D.D.C. July 10, 2014) (Sullivan, J.)

Re: Requests for records concerning polygraph examinations

Disposition: Granting in part and denying in part defendant's motion to dismiss; denying plaintiff's motion to reinstate

• Procedural Requirements, Proper FOIA Requests:  The court holds that one portion of plaintiff's request, "for 'documents pertaining in whole or in part (all years, all classifications) to a list of closed Inspector General investigations and reports,'" "was too broad to interpret and that responding would have been unduly burdensome."  The court finds that the phrase "'pertain[s] in whole or in part' . . . is difficult to define because a record may pertain to something without specifically mentioning it."  The court finds that "[t]he problem for an agency responding to such a request is that the lack of clarity leaves the agency to guess at the plaintiff's intent."  The court notes that "plaintiff had ample opportunity to accept the CIA's offer to reframe or narrow her request, but she failed to do so."  Therefore, the court holds that "[f]aced with the task of guessing at plaintiff's intent regarding what might 'pertain' to any list of closed Inspector General reports and investigations, the CIA followed a reasonable path: it sought additional guidance from the requester and, when none was provided, closed the file."

• Exemption 3:  The court notes that "[t]he CIA relies on two statutes for its Exemption 3 withholdings: Section 102A(i)(1) of the National Security Act, 50 U.S.C. § 3024(i)(1); and Section 6 of the Central Intelligence Agency Act of 1949, 50 U.S.C. § 3507."  The court first finds that "the CIA's withholdings under Section 102A(1)(i) of the National Security Act were justified."  The court observes that "Section 102A(i)(1) of the National Security Act provides that '[t]he Director of National Intelligence shall protect intelligence sources and methods from unauthorized disclosure.'"  The court explains that "the CIA explained that the information it withheld under the National Security Act related to 'covert employees and facilities as well as the limitations, capabilities, successes, weaknesses or other issues pertaining to polygraph examinations'" and that "[r]elease of this information . . . 'would expose sources and methods of the agency, not simply in the personnel screening settings, but also the capabilities and limitations of the polygraph in all applications.'"  Additionally, the court finds that "[t]he Agency also specified how the particular documents and withholdings relate to [the CIA's polygraph program]."  The court explains that "[t]he CIA also explained why its polygraph program is itself an intelligence source and method.  Polygraphs are 'a key intelligence method used in the Agency's security processes'" because "[t]hey are 'a tool for obtaining information and assessing deception in the course of applicant and personnel screening evaluations and counterintelligence investigations,' [they] form part of the agency's method for 'determining an employee's eligibility for initial or continued access to classified information,' and [they] help 'reduce the Agency's vulnerability to counterintelligence risks.'"  With regard to the CIA's withholdings made pursuant to the Central Intelligence Agency Act of 1949, 50 U.S.C. § 3507, the court relates that Section 6 of that Act, the provision which serves to protect "the organization, functions, names, official titles, salaries, or numbers of personnel employed by the Agency[,]" is the provision at issue in this case.  The court first rejects defendant's broad interpretation of this section and holds that "Section 6's protection applies only when the withheld information relates to 'the CIA's personnel and internal structure, such as the names of personnel, the titles and salaries of personnel, or how personnel are organized within the CIA.'"  The court states that "[r]eading the term 'personnel' in Section 6 to effectively mean 'agency' would . . . do violence to the word's ordinary meaning."  The court finds that "[u]nder this interpretation of Section 6, the Court cannot currently say whether the CIA's withholdings were proper" and holds that "[t]o obtain summary judgment, the CIA must provide a clearer description of the withheld information."

• Litigation Considerations, Vaughn Index / Declaration:  The court rejects "plaintiff['s] claim[] that the DIA's Vaughn index and declarations are vague and conclusory."  The court finds that "[i]n fact, the DIA provided sufficient information to show that it is entitled to summary judgment."  Specifically, its statements were "sufficient to establish that the withheld information relates to research and training programs of the National Center for Credibility Assessment regarding polygraphs that are used by the intelligence community for security and counterintelligence purposes."

• Exemption 6:  The court agrees with defendant DIA's use of Exemption 6 to withhold thermal images of federal employees and contractors used for training purposes.  The court finds that "[p]rivacy concerns outweigh [the] minimal public interest."  The court explains that "the public interest in disclosure of the thermal images is minimal because the 'same type of image could be created with any thermal camera, including through widely-available smart phone 'apps' that generate images similar to those being withheld.'"  The court further explains that "[f]our of the images are such that '[a] viewer is easily able to identify the gender, age, facial shape, and facial hair of the subject' and 'can easily make out more detailed facial features that make each person unique.'"  The court notes that "disclosure of the identities of those depicted in the images would 'allow[ ] outside actors to identify employees of [defendant] who may be working to further the mission of the Intelligence Community; and, the release could reasonably be expected to damage the individual privacy of the employees or contractors by disclosing their identities to the general public.”

• Exemption 7(E):  The court finds that defendant correctly relied on Exemption 7(E) to withhold polygraph-related information.  The court relates that "[t]he DIA maintains that the information withheld under Exemption 7(E) consists of 'details concerning the use of polygraph technology to test the credibility of employees involved in specific incidents in the federal workplace' the release of which 'could diminish the effectiveness of the polygraph examination as an investigative tool by allowing the general public to discern when DIA is likely to utilize this tool.'"  "Moreover, at least some of the information withheld relates to 'investigative techniques that were used in an espionage investigation.'"  "More specifically, [certain records] are 'training materials, which are used to teach polygraph research, standards, policies and procedures' and the withheld information 'could be used to circumvent the polygraph examination itself' and potentially diminish 'the effectiveness of the polygraph examination as a critical law enforcement and national security screening tool.'"  The court also "finds that plaintiff's proposed distinction between [polygraphs used in] criminal investigations and [those used in] personnel-screening has no legal basis."
  
  The court also finds that defendant DODIG's statement that "'[t]he redacted material identifies specific applications of techniques and procedures used in polygraph matters and disclosure could enable circumvention of [the] polygraph test by others'" "meets the agency's burden by showing that the withholdings protect information the release of which could lead to circumvention of the criminal-investigation activities of the Defense Criminal Investigative Service."

• Litigation Considerations, Mootness and Other Grounds for Dismissal:  The court finds that "[p]laintiff's sole challenge to the FBI's withholdings relates to a single Exemption 5 withholding."  "The FBI released that information to plaintiff after learning that it 'was actually released by FBI in response to another of Sack's requests.'" The court holds that "[b]ecause plaintiff does not challenge any other withholdings, this claim is moot."
   
• Segregability:  The court holds that DIA's "declaration confirms that the agency conducted a careful review."  "The partial withholdings from [certain] documents . . . are described in sufficient detail to indicate that the agency withheld information directly related to the reason for invoking an exemption."  Additionally, other documents are "justified by 'affidavits that show with reasonable specificity why documents withheld pursuant to a valid exemption cannot be further segregated.'"  Concerning DODIG, the court finds that, while certain submissions "[are] sufficient, "[t]he DODIG did not . . . describe 'with reasonable specificity' why [two documents] were withheld in full."