Sack v. DOD, No. 14-5039, 2016 WL 2941942 (D.C. Cir. May 20, 2016) (Kavanaugh, J.)

Sack v. DOD, No. 14-5039, 2016 WL 2941942 (D.C. Cir. May 20, 2016) (Kavanaugh, J.)

Re: Request for records concerning polygraph program

Disposition: Reversing in part and affirming in part district court's grant of agency's motion for summary judgment

• Fees and Fee Waivers, Requester Categories:  The Court of Appeals for the District of Columbia Circuit holds that "[s]tudents who make FOIA requests to further their coursework or other school-sponsored activities are eligible for reduced fees under FOIA because students, like teachers, are part of an educational institution."  The court finds that "[l]ike teachers, students do research, seek background information for paper topics, gather primary documents, write papers, publish, and contribute to the development and dissemination of knowledge within the school and to the outside world."  "They do so in order to further their coursework or other school-sponsored activities."  "Students often seek access to government information to pursue their particular research interests."  "And students often lack the money (or would be unwilling to spend it) to pay the extra fees that would be required for their FOIA requests if they were denied classification as an educational institution."  The court finds that "[i]t would be a strange reading of this broad and general statutory language – which draws no distinction between teachers and students – to exempt teachers from paying full FOIA fees but to force students with presumably fewer financial means to pay full freight."  The court also finds that the legislative history "does not support the Government's interpretation[,]" "the text of the statute refers to 'educational institutions' without drawing a line between teachers and students[,]" and "the Government's reliance on the OMB Guideline just begs the question of whether the Guideline itself is consistent with the statute."  However, the court also does find that, "[t]o be clear, to qualify for reduced fees as an educational institution, the requester – whether teacher or student – must seek the information in connection with his or her role at the educational institution. "  "In other words, the requester may not seek the information for personal or commercial use."  "With that in mind, a government agency may seek some assurance that the student is submitting the FOIA request to further coursework or other school-sponsored activities."
   
• Exemption 7 & Exemption 7(E):  The Court of Appeals for the District of Columbia Circuit "conclude[s] that the polygraph reports at issue here meet the threshold requirement of FOIA Exemption 7, as well as both subsidiary requirements specific to Exemption 7(E)."  "First, the reports about polygraph use were compiled for law enforcement purposes."  "Put simply, the reports help ensure that law enforcement officers optimally use an important law enforcement tool."  "Second, the reports contain information about techniques and procedures for law enforcement investigations."  The court explains that "[t]he reports identify strengths and weaknesses of particular polygraph programs."  "In describing the effectiveness of polygraph techniques and procedures, the reports necessarily would disclose information about the underlying techniques and procedures themselves, including when the agencies are likely to employ them."  "Third, release of the requested reports could reasonably risk circumvention of the law."  The court explains that "the reports identify deficiencies in law enforcement agencies' polygraph programs" and "[t]heir release could enable criminal suspects, employees with ill intentions, and others to subvert polygraph examinations."  The court also finds that "[it] agree[s] with the District Court's segregability determination."
   
• Litigation Considerations, Jurisdiction:  The Court of Appeals for the District of Columbia Circuit relates that "[b]efore this suit, [the requester] filed a separate FOIA suit against the CIA, the Department of Defense, and three other agencies."  "Pursuant to Rule 21 of the Federal Rules of Civil Procedure, the District Court in that case dismissed the claims against all of the non-CIA defendants and stated that [the requester] would have to refile separate lawsuits against each agency."  "[The requester's] case against the CIA then went forward, and she refiled this separate suit against the Department of Defense."  "[The requester] now seeks review of the order in the prior case dismissing the non-CIA defendants."  The court finds that, "[b]ecause that order dismissed claims from a case not before us in this appeal, we lack jurisdiction to review the order."