Sack v. DOJ, No. 12-01755, 2014 WL 4100407 (D.D.C. Aug. 21, 2014) (Cooper, J.)

Sack v. DOJ, No. 12-01755, 2014 WL 4100407 (D.D.C. Aug. 21, 2014) (Cooper, J.)

Re: Request for records concerning polygraph bias

Disposition: Granting in part and denying in part defendant's motion for summary judgment

• Litigation Considerations, Adequacy of Search:  The court holds that "[the FBI] declaration does not describe any searches specific to [plaintiff's Defense Academy for Credibility Assessment] request, or outline the FBI's general search process in such a way that might lead to a reasonable inference that the Bureau responded specifically to this request."  The court finds that "[t]he government is correct that a FOIA plaintiff cannot succeed in challenging the adequacy of the government's search by hypothesizing that additional records should have been discovered, . . . but this does not end the matter."  "It remains the government's burden to provide affidavits demonstrating that it conducted an adequate search."  "The Court concludes it has failed to do so here."  Additionally, the court finds that "the government's description of its search indicates it may have misconstrued [plaintiff's] request."
   
• Exemption 2:  The court holds that "construing Exemption 2 narrowly, it cannot extend to ATF's polygraph program because this is not trivial personnel information."  The court notes that "the relevant inquiry is whether the policies and procedures the DOJ uses to screen applicants for law enforcement positions is trivial personnel information."  The court finds that "[t]he public may well want to know, as [plaintiff] does, how agencies employ somewhat-controversial polygraph techniques to screen job applicants."
   
• Exemption 5, Deliberative Process Privilege:  The court holds that "ATF cannot redact portions of the email under Exemption 5."  The court relates that "ATF redacted a portion of the email to OMB quoting and interpreting Order 2123.1."  The court finds that "[i]t is well established that an agency's regulations and settled regulatory interpretations are not covered by the deliberative process privilege" and, "[a]t face value, then, the redacted portion of the email cannot be withheld under Exemption 5 because it provides ATF's interpretation of its regulation, and nothing indicates that this interpretation was in any way novel."  The court also disagrees with ATF's argument "that it sent OMB the information contained in the email to help it decide whether to re-approve Order 2123.1, and . . . that these deliberations on future regulation make the document deliberative and pre-decisional," instead finding "that a document explaining existing policy 'cannot be considered deliberative' simply because it was created to help make decisions about future policies."
   
• Exemption 7(E):  The court holds that "[g]iven that the Court has determined that ATF may not withhold Order 2123.1 and the OMB email under Exemptions 2 or 5, it will defer ruling on ATF's withholdings under Exemption 7(E) in order to provide ATF an opportunity to determine whether, in light of this opinion, any portions of the withheld material are reasonably segregable from properly withheld material."  The court notes that "[i]n doing so, the agency should keep in mind that there must be 'a rational nexus between the withheld material and a legitimate law enforcement purpose[.]'"