Stein v. CIA, No. 17-189, 2023 WL 6388946 (D.D.C. Sept. 29, 2023) (Chutkan, J.)

Stein v. CIA, No. 17-189, 2023 WL 6388946 (D.D.C. Sept. 29, 2023) (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 summary judgment

• Exemption 6:  The court relates that “Documents 43–64 in the CIA’s Vaughn index are records relating to the security clearance process for certain individuals.”  “In the first round of summary judgment motions, Plaintiff did not contest CIA’s withholding those documents under Exemptions 1, 3, and 5, but argued that they were improperly withheld under Exemption 6.”  “The court’s prior Opinion ordered the CIA to ‘produce [those] additional documents’ without redacting at least the names of the individuals receiving security clearance investigations, which did not implicate substantial privacy interests.”  “The court stated that it would defer consideration of whether ‘CIA failed to release all reasonably segregable, non-exempt information’ from those documents after they were produced.”  “The court concludes that CIA has met its FOIA obligations for the contested documents in all respects but one:  It never actually produced the documents with at least the names unredacted to Plaintiff, as the court ordered.”  “Instead, it ‘sent an email . . . apprising Plaintiff of those names.’”  “The court will accordingly grant partial summary judgment to Plaintiff by ordering that production.”  “However, CIA may redact all information besides the names in those documents, for two reasons.”  “First, CIA has clarified that all the remaining personally identifiable information (‘PII’) in the documents was typical, sensitive forms of PII, such as date of birth, place of birth, social security number, and an alternate identification number.”  “Second, and more importantly, Plaintiff has not opposed CIA withholding the documents in full based on the other Exemptions it has asserted.”  “As a result, there is no basis for compelling unredacted production of any other part of those documents besides the names, pursuant to the court’s prior Opinion.”

• Exemption 6; Exemption 7(C):  The court relates that “[t]he parties have narrowed their dispute regarding documents withheld by State to portions of a single page in an ‘Adjudicative Analysis Worksheet’ related to Rex Tillerson’s security background investigation.”  “Those portions, redacted under Exemptions 6 and 7(C), include (1) a description of ‘the level of background investigation conducted, the agency that conducted it, and the timing of that investigation,’ which is ‘revelatory of the extent to which the agency viewed the applicant as a security risk’; (2) ‘the [security clearance] recommendation itself,’ – i.e., whether the agency recommended Tillerson as eligible or ineligible for clearance; (3) ‘a sentence below the [security clearance] recommendation related to ineligible recommendations,’ along with ‘the space below the sentence . . . , where anything in the applicant’s background investigation identified as a potential security concern would be listed’; and (4) ‘the names of the evaluator (adjudicator) and reviewer who signed this recommendation page.’”  “The court has already identified a public interest ‘in revealing information about State’s participation in the security clearance process for Tillerson,’ including whether his background investigation ‘revealed any issues of adjudicative concern.’”  “Accordingly, in its prior Opinion, the court ordered State to provide more details on the privacy interests at stake.”  “But State’s supplemental declaration largely repeats its conclusory assertions that Tillerson and the government has a privacy interest in the redacted information, without providing sufficient details as to how the disclosure of that information could likely result in harassment or other harm.”  “As a result, the court will require State to submit ex parte an unredacted copy of the page at issue, so that the court can review the redacted portions in camera and determine whether the balance of interests requires their disclosure.”
   
• Litigation Considerations, Vaughn Index/Declaration:  The court holds that “[i]n its prior Opinion, the court deferred judgment on certain issues with respect to two Defendants, FBI and ODNI.”  “First, the court required ‘FBI to submit an additional declaration explaining its search methodology for the two requests’ regarding its process of conducting security clearance investigations for Ivanka Trump and Michael Flynn, and deferred ruling on FBI’s other withholdings, along with their segregability, until after that submission.”  “And second, the court required ODNI to ‘submit a supplemental declaration describing in more detail the agency’s review for reasonably segregable information.’”  The court finds that “[i]n their latest Motion for Summary Judgment, Defendants did not address either of these issues, apparently under the impression that there was no longer any dispute that they had satisfied their obligations.”  “In fact, Plaintiff maintains that both FBI and ODNI improperly withheld information, but makes no arguments for that proposition other than noting Defendants’ failure to address the issues.”  “Defendants disagree, naturally, but likewise do not make any substantive arguments until their brief opposing Plaintiff's MSJ and replying in support of their own.”  “Because the court will require further action from the parties on other issues in this case, it will again defer consideration of FBI and ODNI’s withholdings, denying without prejudice summary judgment to either party.”  “The parties may file renewed motions for summary judgment on these issues at the appropriate time.”
   
• ​​​​​​​Litigation Considerations, Adequacy of Search:  The court relates that “[plaintiff] ask the court to amend its previous holding that CIA’s search for records was adequate.”  The court finds that “[a]lthough ‘the discovery of new evidence’ may warrant amendment . . . it does not do so here.”  “In response to Plaintiff’s request, CIA ‘personnel with expertise in conducting Agency records searches . . . consulted with Agency officials knowledgeable about the subject matter of the requests in order to ascertain the potential universe of responsive records and to identify all of the specific offices and individuals who would be likely to possess those documents.’”  “CIA searched both electronic databases and hard copies of the two offices most likely to possess responsive records.”  “It also conducted an email search using search terms such as ‘clearance,’ ‘background,’ and the names of all 15 individuals identified in Plaintiff’s requests, as well as ‘logical synonyms, acronyms, and variations of these terms likely to reveal potentially relevant documents.’”  “Plaintiff argues that the later discovery and production of two emails about Betsy DeVos referred to CIA by the Department of Education demonstrates that CIA’s search was inadequate.”  “But CIA’s search understandably would not have located those emails – which lacked any targeted keywords CIA could have used to reasonably search for responsive dockets, such as DeVos’s name.”  “As a result, the emails neither demonstrate the inadequacy of CIA’s search nor reveal any prejudice to Plaintiff from that search to such a degree that justice requires disturbing the court’s prior holding.”