United for FBI Integrity v. DOJ, No. 22-2885, 2024 WL 961001 (D.D.C. Mar. 6, 2024) (Contreras, J.)

United for FBI Integrity v. DOJ, No. 22-2885, 2024 WL 961001 (D.D.C. Mar. 6, 2024) (Contreras, J.)

Re:  Request for records concerning former FBI Associate Deputy Director’s retirement and any possible allegations of misconduct against the former Associate Deputy Director

Disposition:  Granting in part and denying in part defendant’s motion for summary judgment; granting in part and denying in part plaintiff’s cross-motion for summary judgment

• Exemption 7, Threshold:  The court finds that, “[a]lthough DOJ is correct that most of the hypothetical FBI records sought by Plaintiff would be compiled for law enforcement purposes, the Court cannot say the same must be true for all possible responsive documents.”  “The broad language of Plaintiff’s requests would cover records about complaints and investigations into conduct that would not necessarily lead to civil or legal sanctions.”  “For example, Plaintiff’s declaration alleges an apparently consensual affair between [the former FBI Associate Deputy Director] and another FBI employee, which violate FBI workplace policies and could lead to complaints or an investigation, but does not seem to implicate any violation of law.”  “The sensitive nature of FBI employment makes it easy to imagine how a violation of workplace policy could also implicate civil or criminal penalties.”  “But that is speculative, and without more information, the FBI cannot assert that any investigative records it collects on an employee are necessarily a law enforcement record.”  “In fact, a prior D.C. Circuit case concerning the DOJ’s Office of Professional Responsibility[, Bartko v. DOJ, 898 F.3d 51, 65 (D.C. Cir. 2018),] essentially forecloses DOJ’s present position.”  “There, the court held that an Exemption 7(C) Glomar response was impermissible when:  ‘[t]he government has not come close to showing that all records (if there are more) involving misconduct allegations against [a federal employee] would have been compiled for law enforcement purposes.’”  “‘[Plaintiff’s] FOIA request [in that case] was broadly worded to include a wide variety of actual or alleged violations by [the employee] of the U.S. Attorney’s Manual, the North Carolina Code of Professional Conduct, and other ethical and legal obligations.’”  “‘While violations of some of those standards could conceivably result in civil or criminal sanctions, many of them would not, and would bear only on internal disciplinary matters.’”
  
  “The Court’s analysis for the OIG comes out similarly.”  “Like the FBI declaration, the OIG declaration insists that any responsive records would have been compiled as part of an investigation ‘for potential criminal or civil prosecution, or administrative action by the employing Department component,’ and, therefore in DOJ’s view, for law enforcement purposes and falling under Exemption 7(C).”  “But OIG records about complaints and investigations that solely implicate FBI guidelines will fall outside Exemption 7(C).”  “OIG is a mixed function agency that investigat[es] ‘administrative misconduct on the part of Department employees,’ . . . and . . . ‘[c]omplaints of misconduct by individual Department employees are reported to and typically investigated by law enforcement agents assigned to the OIG’s Investigation Division for potential criminal or civil prosecution, or administrative action by the employing Department component[.]’”  “Hence, because some possible records may concern only investigations into a violation of internal guidelines, not all OIG records would fall under Exemption 7(C).” 
  
  However, “[e]ven though the Court rejects DOJ’s categorical arguments, it cannot ignore that most of the records that Plaintiff envisions in its request would clearly fall under Exemption 7(C), including any records of an investigation into [the former FBI Associate Deputy Director’s] alleged violations of constitutional rights.”  “Additionally, records concerning possible sexual misconduct could violate workplace anti-discrimination and harassment laws.”  “For another thing, while the tests are different between Exemption 6 and Exemption 7(C), in this case the gap between these inquiries is not large enough to alter the Court’s conclusions for the category of records where the appropriate exemption may vary.”
   
• Exemption 6; Exemption 7(C):  Regarding the privacy interests at issue, the court holds that, “[t]o begin, ‘[a] government employee has at least some privacy interest in his own employment records, an interest that extends to not having it known whether those records contain or do not contain information on wrongdoing, whether that information is favorable or not.’”  “That privacy interest only grows when records directly stem from an investigation.”  “All in all, given that Plaintiff broadly seeks records relating to any type of allegations or investigations against [the former FBI Associate Deputy Director], he plainly has a ‘strong privacy interest in avoiding the disclosure of any investigation of misconduct.’”  However, “[t]he Court agrees [the former FBI Associate Deputy Director’s] high rank in public office – . . . the third most senior position within the FBI – lowers but does not eliminate his privacy interest.”  “Plaintiff asserts that [the former FBI Associate Deputy Director’s] decision to ‘advertise[ ] . . . his experience with the FBI in his current job,’ . . . diminishes his privacy interests even more.”  “The Court does not see how.”  “Because the D.C. Circuit has repeatedly identified possible damage to an individual’s career as supporting a privacy interest, Plaintiff is incorrect that [the former FBI Associate Deputy Director] has diminished his privacy interest by touting his FBI experience.”  “Plaintiff has more luck when arguing that [the former FBI Associate Deputy Director’s] privacy interests are lowered because it is public knowledge that [he] has been accused of wrongdoing.”  “The FBI and OIG, however, have effectively acknowledged that they investigated [the former FBI Associate Deputy Director] based on [certain] allegations.”  “This is sufficient to lower [the former FBI Associate Deputy Director’s] privacy interest in the existence of any records considering any complaints, allegations, or investigative records concerning his interactions with [the subject of the public allegations].”  “Nevertheless, beyond the OIG report, Plaintiff has not presented other public records or agency acknowledgment about any complaints or investigations related to [the former FBI Associate Deputy Director], including for sexual misconduct.”
  
  Regarding the public interests at issue, the court analyzes four asserted public interests.  First, “the Court finds that Plaintiff has ‘produce[d] evidence that would warrant a belief by a reasonable person that the alleged Government impropriety might have occurred’” regarding “complaints, allegations, or investigative files about [defendant’s] treatment of [plaintiff’s counsel].”  “[G]iven [the former FBI Associate General Counsel’s] leadership role in the FBI’s New Orleans division, his efforts to hurry along the security clearance process, and OIG’s findings that the process was improperly rushed, . . . it would be reasonable to believe [the former FBI Associate General Counsel] played a role in how events unfolded.”  However, second, “[t]he Court is not convinced that Plaintiff has established more than bare suspicion that [the former FBI Associate Deputy General Counsel] engaged in sexual misconduct during his time at the FBI.”  “[Plaintiff’s counsel] offers an undetailed assertion of various types of sexual wrongdoing by [the former FBI Associate Deputy General Counsel], based entirely on hearsay from unidentified FBI employees.”  Third, the court relates that “Plaintiff argues that there is a public interest in uncovering whether OIG’s report into the suspension of [plaintiff’s counsel’s] security clearance improperly omitted negative information about [the former FBI Associate Deputy General Counsel].”  “Although DOJ’s briefing does not respond to this argument, the Court is unconvinced regardless.”  “Plaintiff has not established more than a bare suspicion that OIG officials ‘acted negligently or otherwise improperly in the performance of their duties.’”  Fourth, “[t]he Court agrees that there is a public interest in the FBI’s approach to investigating and reprimanding its executives, including for sexual misconduct, and in whether there is a pattern of executives retiring to avoid accountability.”  “This interest is not only evident in the abstract but also supported by evidence that suggests deficiencies in the FBI’s policies.”
  
  Regarding the balancing, “[b]ecause the Court rejected two of Plaintiff’s proposed public interests – shedding light on [the former FBI Associate Deputy Director’s] alleged sexual misconduct and the OIG’s negligence – the Court declines to conduct further analysis on that point.”  “Weighing the other public interests, and primarily relying on the public interest in uncovering any impropriety related to [plaintiff’s counsel’s] loss of security clearance, the Court finds the balance of interests tilts toward a limited disclosure.”  “Even though [the former FBI Associate Deputy Director] has a substantial privacy interest generally, that interest is lower for the existence of records that accuse him of misconduct with respect to [plaintiff’s counsel’s] speech and loss of security clearance.”  “Because [plaintiff’s counsel] has already publicly alleged that [the former FBI Associate Deputy Director’s] behavior was improper, those accusations received media attention, and most of all, the OIG released a report that confirmed [the former FBI Associate Deputy Director’s] conduct was part of an internal investigation, this case is quite different from one where [the former FBI Associate Deputy Director] could assert ‘an . . . interest in not being associated with an investigation in the first place.’”  “And again, [the former FBI Associate Deputy Director’s] high-rank in the FBI further diminishes his privacy interests.”  “The public interests, conversely, are strong for similar reasons.”  “The public evidently has an interest in the operations of the FBI, and Plaintiff has presented evidence that tips beyond a bare suspicion of wrongdoing.”  “The full context of [plaintiff’s counsel’s] termination, as detailed in the OIG report and [plaintiff’s counsel’s] litigation, indicates that [plaintiff’s counsel] may have been impermissibly targeted for exercising his First Amendment rights.”  “The Court cannot ignore [the former FBI Associate Deputy Director’s] role leading the FBI’s New Orleans division and his concomitant participation in efforts to revoke [plaintiff’s counsel’s] security clearance and prevent his accusations from being released to the public.”  “These circumstances plainly trigger a public interest in any allegations or investigations of [the former FBI Associate Deputy Director], and the existence of any such records.”  “Conversely, the public interest in the FBI’s approach to investigating executives and a pattern of executives retiring to avoid accountability is insufficient to warrant disclosure of the existence of any records about complaints or investigations into [the former FBI Associate Deputy Director].”  “[The former FBI Associate Deputy Director] retains a privacy interest in his personnel records under Exemption 6, . . . and because the Court has rejected Plaintiff’s speculative allegations that [the former FBI Associate Deputy Director] retired to dodge an investigation, the ‘necessary nexus between the requested information and the asserted public interest that would be advanced by disclosure’ is absent.”
  
  “Having considered the full context of Plaintiff’s FOIA request, the Court finds that for some possible records, the public interest in the existence of records outweighs [the former FBI Associate Deputy Director’s] privacy interests.”  “The upshot of the Court’s analysis is that the FBI and OIG may not permissibly issue a Glomar response as to the existence of responsive records that concern [the former FBI Associate Deputy Director’s] role in the loss of [plaintiff’s counsel’s] security clearance and any records about allegations that [the former FBI Associate Deputy Director] violated [plaintiff’s counsel’s] constitutional rights.”  “Thus, the agencies must search for any records concerning complaints, allegations, investigative files, and dispositions of any allegations into [the former FBI Associate Deputy Director] that relate to the alleged 2016 retaliation incident and any violation of [plaintiff’s counsel’s] constitutional rights.”  “Once such search has been completed, if responsive records are located the FBI and OIG must justify any withholdings in the traditional manner.”  “But because [the former FBI Associate Deputy Director’s] privacy interests otherwise overcome any public interest into a broad inquiry into his conduct between 2016 and 2021, the FBI and OIG are justified in asserting a Glomar response as to the existence of records about complaints or investigations into [the former FBI Associate Deputy Director] for any other reason.”