Stein v. CIA, No. 17-0189, 2020 WL 1866002 (D.D.C. Apr. 14, 2020) (Chutkan, J.)

Stein v. CIA, No. 17-0189, 2020 WL 1866002 (D.D.C. Apr. 14, 2020) (Chutkan, J.)

Re:  Requests for records concerning "'national security briefings given or to be given to Donald Trump due to his Presidential candidacy,'" as well as information related to background investigations of fifteen individuals reportedly under consideration for senior positions in the Trump administration

Disposition:  Granting in part and denying in part defendants' motion for summary judgment; granting in part and denying in part plaintiff's cross-motion for partial summary judgment

• Litigation Considerations, Adequacy of Search & Procedural Requirements, Searching for Responsive Records:  Regarding the CIA's search, the court finds that "[The] CIA has . . . offered satisfactory descriptions of the databases it searched for responsive records."  "Given [plaintiff's] concession that [the] CIA provided a 'thorough' description of its search of the primary database, . . . the court is not persuaded by his attempt to now argue that the agency failed to provide enough information because it did not disclose the names of the two systems."  "Moreover, [plaintiff] provides no case law suggesting that an agency must disclose the names of the databases it searches."
  
  Regarding the FBI's search, first the court finds that "[the] FBI properly interpreted [plaintiff's] requests."  "The plain meaning of 'copies of all records, including emails, about any steps taken to investigate or authorize (or discussions about potentially investigating or authorizing) [an individual] for access to classified information' reasonably encompasses information about [the] FBI's investigatory process."  "It does not extend to the data or results of the investigations."  Second, "[plaintiff] does . . . present 'evidence that relevant records have not been released,' which the D.C. Circuit has recognized 'may shed light on whether the agency's search was indeed inadequate.'"  "He calls attention to two news articles reporting that Ivanka Trump was in the process of receiving a security clearance by March 2017."  "He also notes two queries in NBIB's Clearance Verification System about Michael Flynn, Sr.'s clearance in August 2016 and October 2016, indicating that Flynn was undergoing a background investigation during this time."  "In light of this evidence, [the] FBI's explanation for the lack of responsive records – the 'relatively narrow timeframe' spanned by the requests – is unconvincing."  "Supported by these facts, [plaintiff's] argument is considerably more credible than a 'purely speculative claim [ ] about the existence and discoverability of other documents.'"  "He casts enough doubt on the presumption of good faith accorded to [the] FBI's declaration to preclude summary judgment for [the] FBI as to these two requests, and the court will therefore direct [the] FBI to submit an additional declaration explaining its search methodology for the two requests."
  
  Regarding the Defense Manpower Data Center ("DMDC") search, the court first finds that "[a]s the court found with regard to [plaintiff's] claims against [the] FBI, . . . it was reasonable for DMDC to interpret the scope of the requests to include only information related to the clearance investigation process, and not the data or results of these investigations."  Second, the court finds that "[defendant's declarations'] stated familiarity with DMDC databases and with the DMDC official's conclusion provides enough indicia of reliability to provide a sufficient explanation for not searching [Joint Personnel Adjudication System, a "'database [which] does not maintain security investigations of cabinet level personnel (including the Secretary of Defense)'"]," and, therefore, "adequately 'explain why a search would be futile and is unnecessary.'"  Additionally, the court finds that "[defendant's] second declaration provides enough evidence to show that none of the three additional databases [suggested by plaintiff] are likely to contain records responsive to [plaintiff's] requests."
  
  Regarding DOJ, the court finds that "DOJ's explanation as to why the [Mail Referral Unit ("MRU")] only referred the request to OIP is inadequate."  The court finds similarly with MRU's decision to refer the request to the FBI.  The court finds that "the declarations in the record fail to explain MRU's determination 'in reasonable detail.'"  DOJ is "directed to submit a supplemental declaration providing a more fulsome explanation for MRU's decision to refer the requests to FBI."
  
  Regarding OPM, the court finds that "[a]s with the other agency interpretations [plaintiff] challenges as too narrow, [the National Background Investigations Bureau ("NBIB")] concluded that the requests did not encompass the information or data compiled during the background investigations."  "For the reasons previously set forth, the court finds that NBIB interpretation was reasonable."
  
  Regarding the Office of the Director of Net Intelligence ("ODNI"), first, "the court finds that ODNI, like the other agencies, reasonably interpreted the investigation requests to encompass records about the process of conducting a security clearance investigation, and not data or results from the investigations."  Second, "the court finds that ODNI conducted an adequate search for records responsive to the requests."  The court finds that "while the databases contain information that other agencies may use when conducting security clearance investigations, ODNI 'simply maintains [the] shared databases.'"  "Given this limited role, the court agrees that ODNI 'would have had no way of knowing what steps, if any, the CIA or any other agency took to investigate or authorize the individuals for access to classified information.'"  "Because the responsiveness of material in ODNI's databases depends on whether an agency used them during an investigation, ODNI has shown that it 'does not maintain any records' responsive to [plaintiff's] investigation requests."
  
  Regarding the Department of Education, "[t]he court will thus deny Education's motion, deny [plaintiff's] cross-motion, and direct the agency to submit another declaration more specifically explaining the basis for its determination that a search for responsive records would be futile."  The court finds that defendant "fails to 'show beyond material doubt . . . that [Education] has conducted a search reasonably calculated to uncover all relevant documents.'"  "[Defendant's] brief declaration is conclusory . . . ."  The court finds that "[defendant's declarant] does not provide enough information from which the court can 'presume[ ]' that she was 'able to familiarize [herself]' with the agency's response to the request, which courts have required when a refusal to search is based on a conclusory declaration."
   
• Litigation Considerations, Vaughn Index/Declaration:  The court holds that "the [CIA] has presented enough evidence explaining the reasons for withholding the documents at issue."  The court finds that "[t]he Vaughn index . . . provides, for each document, (1) a brief label describing the document type (e.g. 'email'), (2) the exemption justifying the withholding, (3) a short overview of the statutory purpose and scope of the claimed exemption, and (4) language stating that [the] CIA reviewed the document and determined that it contained no non-exempt and reasonably segregable information that [the] CIA could release."  Additionally, regarding defendant's categorical descriptions, the court finds that "[defendant's] supplemental declaration, . . . includes additional descriptions for each of the . . . challenged documents and explains why the claimed exemption applies to specific documents."  'While [defendant] groups the records according to shared characteristics, [it] provides additional information about each of the . . . documents, identified by their Vaughn index number."
   
• Exemption 6:  Regarding the CIA, first, the court finds that "CIA's initial declaration states that 'several of the documents at issue, used in the clearance process, contain large volumes of personally identifiable information, including names, social security numbers, addresses, and credit histories.'"  "Based on this information, [the] CIA has shown that the records it withheld 'appl[y] to a particular individual' and thus meet Exemption 6's threshold requirement."  Second, the court agrees with plaintiff "that Exemption 6 does not warrant withholding the names of . . . fifteen . . . individuals [investigated for security clearances], arguing that merely disclosing their names would not constitute a clearly unwarranted violation of their privacy."  The court explains that "[d]isclosing the investigated officials' names hardly implicates 'weighty' privacy interests" because "[r]evealing the identities of public officials receiving security clearance investigations, unlike the identities of subjects of criminal investigations, would not 'subject those identified to embarrassment and potentially more serious reputational harm.'"  Third, the court finds that "because of the negligible privacy interests in the names alone, and because disclosing this limited information would convey some information about [the] CIA's relevant activities by confirming that the agency conducted security clearance investigations for the named individuals, the balance tips in favor of disclosure."
  
  Regarding ODNI, "the court concludes that ODNI properly withheld . . . 31 screenshots ["from the Scattered Castles and Signal Flags databases showing whether an individual had a security clearance at the time [the] CIA searched the database"] it received via referral from [the] CIA."  The court finds that "[r]ecords of an individual's security clearance satisfy Exemption 6's threshold requirement that a record contain 'personnel . . . files [or] similar files.'"  The court finds that "the only relevant public interest is the extent to which the records would 'contribut[e] significantly to public understanding of the operations or activities of the government.'"  "Here, the public has no overriding interest in disclosure with respect to ODNI."  "Because ODNI was not involved in conducting the background investigations, . . . it took no investigative 'steps' that the records could reveal."  "Neither would disclosure of the 31 pages provide information on CIA operations that outweighs the 'substantial privacy interest[s]' in the records."  "The screenshots of the databases merely reveal whether the individuals had security clearances when [the] CIA searched the database."
   
• Litigation Considerations, Exhaustion of Administrative Remedies:  Regarding DOD, the court holds that "[b]ecause [plaintiff] chose not to administratively appeal the [Office of the Secretary of Defense and Joint Staff ('OSD/JS')] FOIA office's response to his initial briefing request, summary judgment for DOD is appropriate on this issue."  The court relates that "[w]hile [plaintiff] concedes that he never appealed the 'no records' response he received from the OSD/JS FOIA office on May 23, 2016, . . . he argues that his subsequent e-mails to the OSD/JS action officer on July 22 and July 27, 2016 constituted a separate FOIA request that OSD/JS then refused to process."  However, the court finds that "[t]he July 22 and 27 e-mails from [plaintiff's] counsel did not comply with DOD’s regulations for submitting FOIA requests, which require FOIA requests to be addressed to a FOIA Requester Service Center."
  
  Regarding OPM's National Background Investigations Bureau ("NBIB"), the court finds that "[b]ecause there is a genuine disputed issue of material fact regarding whether NBIB's response letters triggered the administrative exhaustion requirement, the court will deny OPM's motion for summary judgment on this issue."  The court finds that "[v]iewing the facts in the light most favorable to [plaintiff], the court finds there is a genuine dispute of material fact regarding whether NBIB's responses to the thirteen investigation requests were adverse determinations that triggered the administrative appeal requirement."  "While the cover e-mails from NBIB classified the responses as 'final,' the simultaneous use of the word 'interim,' combined with the statement that the OPM FOIA office would continue searching for responsive materials, could cause a reasonable factfinder to conclude that OPM's response was not a sufficiently clear 'determination of whether or not to comply with the request.'"
   
• Exemption 6; Exemption 7, Threshold; Exemption 7(C):  Regarding the National Background Investigations Bureau ("NBIB"), "the court will deny summary judgment to both OPM and Stein on this question, and order OPM to submit a supplemental declaration to more fully explain why the requested information is exempt under Exemption 6 and/or Exemption 7(C)."  First, the court holds that "[defendant's] Declaration establishes that NBIB compiled the documents in question for a law enforcement purpose."  "Recognizing that '[t]he principal purpose of a background investigation is to ensure that a prospective employee has not broken the law or engaged in other conduct making her ineligible for the position,' the D.C. Circuit held . . . that 'information obtained during OPM's background investigation was compiled for law enforcement purposes.'"  "Similarly, the documents withheld by NBIB relate to the security clearance investigations for [former Secretary of Defense James Mattis], [former National Security Advisor Michael Flynn], . . . and therefore satisfy Exemption 7(C)'s threshold requirement."  Second, the court finds that "[w]ith respect to the personal identifying information contained in the documents, the balancing test favors OPM."  "For each of the three requests at issue, OPM properly determined that the personal identifying materials do not implicate an overriding public interest because they 'do not contain information on the process or the risks associated with granting an individual a security clearance' and thus would not convey information about the agency's conduct."  However, "[t]he portions of the withheld records noting the 'date, nature and purpose of each disclosure' present a closer case."  "Without additional details about these records, the court lacks enough information to determine whether the public interest in this information outweighs the personal privacy interests in nondisclosure."  "It is similarly unclear whether releasing details of the 'date, nature and purpose of each disclosure' would satisfy Exemption 6's threshold requirement that records contain 'personnel . . . [or] similar files.'"  "And even if it did, the court cannot conduct the necessary balancing test without more specific factual support for withholding the information, and the privacy interests therein."
  
  Regarding the Department of State, "the court does not have enough information to fully determine the privacy interests in [the document at issue] and weigh them against the public interest in disclosure."  The court finds that "State's explanation for withholding [the document] is inadequate for two reasons."  "First, it fails to demonstrate that disclosure of this information would constitute an unwarranted invasion of [former Secretary of State Rex Tillerson's] privacy."  "State offers no comparable description of which 'details regarding the adjudication of [Tillerson's] background investigation' support its conclusory statement that disclosure 'could subject him to unwanted attention or harassment.'"  "Second, Defendants' claim that Document No. 17 'would [not] shed any light on the activities of government' is unavailing."  "The relevant public interest lies in revealing information about State's participation in the security clearance process for Tillerson."  "It stretches logic to claim that a document containing 'information regarding whether Secretary Tillerson's background investigation revealed any issues of adjudicative concern' will not shed light on the activities of the adjudicating agency."
   
• Litigation Considerations, "Reasonably Segregable" Requirements:  "Out of an abundance of caution, the court will deny summary judgment to ODNI and direct the agency to submit a supplemental declaration describing in more detail the agency's review for reasonably segregable information."  The court finds that "ODNI provides only the brief, conclusory statement that '[n]o information in this record could be segregated and released to Plaintiff.'"  "While it is admittedly unlikely that screenshots of the databases contain any non-exempt, reasonably segregable information, it is nonetheless possible, and the court cannot accept such a cursory 'conclusion on a matter of law.'"