UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

BRANDON C. SCHNEIDER,

Plaintiff,

v. No. 18-cv-2294 (DLF)

U.S. DEPARTMENT OF JUSTICE, et al.,

Defendants.

MEMORANDUM OPINION

Brandon Schneider brings this action against the Department of Justice (DOJ), the

Department of State, and the Central Intelligence Agency (CIA) under the Freedom of

Information Act (FOIA),

et seq., and the Privacy Act, 5 U.S.C. § 552a, et seq., to

challenge the CIA’s response to requests Schneider made under both Acts. Compl. ¶ 1, Dkt. 1.

Before the Court is the government’s Second Renewed Motion for Summary Judgment. Dkt. 35.

For the reasons that follow, the Court will grant the motion.

I. BACKGROUND

In May 2018, Schneider submitted a FOIA and Privacy Act request to the DOJ,

Department of State, and CIA. See Defs.’ Stmt. of Material Facts ¶ 1, Dkt. 22-2. In particular,

Schneider requested documents relating to his 2003 CIA employment application. Id. The CIA

in turn searched its directorates for Schneider’s documents. Id. ¶ 6. In March 2019, the CIA

informed Schneider that it had located seventeen documents and released one document in full

and four documents in part. Shiner Decl. ¶¶ 9, 13, Dkt. 22-5. The CIA withheld the remaining

documents under FOIA and Privacy Act exemptions. Id. ¶ 9. In October 2018, Schneider brought this action. Compl. ¶ 1. Schneider has since

narrowed his challenge to a single criminal referral document sent by the CIA to the DOJ. See

Pl.’s Opp’n to Defs.’ Mot. for Summ. J. at 1, Dkt. 24. Thus, this case comes down to a single

document. The CIA withheld the document in full under FOIA Exemptions 5 and 7(E). See

Blaine Decl. ¶¶ 6–7, Dkt. 35-3. Alternatively, the CIA redacted all portions of the document

under Privacy Act Exemptions (j)(1) and (k)(2). See Shiner Decl. ¶¶ 15–16, 19–20. The

government has twice moved for summary judgment. See Defs.’ Mot. for Summ. J., Dkt. 22;

Defs.’ Renewed Mot. for Summ. J., Dkt. 27. In both instances, the Court found that it did not

have sufficient information or argumentation to rule on the government’s motions. See Order

Denying Defs.’ Mot. for Summ. J., Dkt. 26; Order Denying Defs.’ Renewed Mot. for Summ. J.,

Dkt. 32. In July 2020, the government filed its second renewed motion for summary judgment,

Defs.’ Second Renewed Mot. for Summ. J., which is now before the Court. The Court has

benefitted from the government's more fulsome argument in the latest round of briefing, which

gave support to the declaration.

II. LEGAL STANDARD

Rule 56 of the Federal Rules of Civil Procedure mandates that “[t]he court shall grant

summary judgment if the movant shows that there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). On a summary

judgment motion, all facts and inferences must be viewed in the light most favorable to the

record requester, and the agency bears the burden to show its statutory compliance. Chambers v.

U.S. Dep’t of Interior,

(D.C. Cir. 2009).

To succeed on a motion for summary judgment, the agency must prove “that it has

conducted a search reasonably calculated to uncover all relevant documents,” Weisberg v. DOJ,

2

(D.C. Cir. 1983) (internal quotation marks omitted). The agency also

“must prove that each document that falls within the class requested either has been produced, is

unidentifiable, or is wholly exempt from [statutory] inspection requirements.” Perry v. Block,

(D.C. Cir. 1982) (per curiam). To properly invoke statutory exemptions, the

agency must explain in reasonable detail why an exemption applies to any withheld record.

Judicial Watch, Inc. v. FDA,

(D.C. Cir. 2006).

“[T]he vast majority of FOIA cases can be resolved on summary judgment.” Brayton v.

Off. of the U.S. Trade Representative,

(D.C. Cir. 2011). “In a suit seeking

agency documents—whether under the Privacy Act or FOIA—at the summary judgment stage . .

. the court may rely on a reasonably detailed affidavit” to determine whether an agency has met

the statutory obligations. Chambers,

. An agency’s affidavit is accorded a

presumption of good faith, SafeCard Servs. v. SEC,

(D.C. Cir. 1991). If the

affidavit describes with a “reasonable specificity of detail” the justifications for withholding the

information under the invoked statutory exemption, Judicial Watch, Inc. v. U.S. Secret Serv.,

(D.C. Cir. 2013), then “summary judgment is warranted on the basis of the

affidavit alone.” ACLU v. DOJ,

(D.C. Cir. 2011); see Media Rsch. Ctr. v.

DOJ,

(D.D.C. 2011) (“[A]n agency’s justification for invoking a FOIA

exemption is sufficient if it appears ‘logical’ or ‘plausible.’” (quoting Larson v. Dep’t of State,

(D.C. Cir. 2009)). Particularly when considering claimed exceptions within

the context of national security, federal courts “must accord substantial weight to an agency’s

affidavit concerning the details of the classified status of the disputed records.” Wolf v. CIA,

(D.C. Cir. 2007) (internal quotation marks omitted).

3 III. ANALYSIS

Generally speaking, FOIA and the Privacy Act provide requestors with access to federal

agency records so long as certain exemptions do not apply. See

(a) (FOIA); 5

U.S.C. § 552a(d)(1), (3) (Privacy Act). Where an agency fails to comply with a proper request,

both statutes create a private cause of action for the requestor. See

(a)(4)(B)

(FOIA); 5 U.S.C. § 552a(g)(1) (Privacy Act). As an initial matter, an agency must demonstrate

that it conducted an adequate search for the requested records. See Chambers,

(“[T]he Privacy Act, like FOIA, requires [a search that is] reasonably calculated to uncover all

relevant documents.”).

If the agency’s search reveals relevant documents, the agency may invoke statutory

exemptions under both Acts to withhold information from disclosure. See

(b)

(FOIA); 5 U.S.C. § 552a(j)–(k) (Privacy Act). Yet “[w]hile the Privacy Act was designed to

provide individuals with more control over the gathering, dissemination, and accuracy of agency

information about themselves, FOIA was intended to increase the public’s access to

governmental information.” Greentree v. U.S. Customs Serv.,

(D.C. Cir. 1982)

(emphasis added). The two Acts “are not completely coextensive; each provides or limits access

to material not opened or closed by the other.”

. Where an agency invokes exemptions

to withhold information under both Acts, it must “demonstrate that the documents fall within

some exemption under each Act.” Martin v. Off. of Special Couns., Merit Sys. Prot. Bd.,

(D.C. Cir. 1987) (emphasis in original) (“If a FOIA exemption covers the

documents, but a Privacy Act exemption does not, the documents must be released under the

Privacy Act; if a Privacy Act exemption but not a FOIA exemption applies, the documents must

be released under FOIA.”).

4 Here, Schneider does not challenge the adequacy of the CIA’s search. Pl.’s Opp’n to

Defs.’ Mot. for Summ. J. at 1 (“Mr. Schneider concedes the adequacy of the searches conducted

for responsive records, as well as the remainder of the redactions and/or withholdings made by

the [government].”). And based on the sworn declarations, see Blaine Decl.; Shiner Decl.;

Second Shiner Decl., Dkt. 27-1, the Court finds that the CIA conducted an adequate search

reasonably calculated to uncover all relevant documents. See Weisberg,

. The

government’s motion for summary judgment then depends on the applicability of the FOIA and

Privacy Act exemptions invoked for the criminal referral document at issue.

A. FOIA Exemptions Invoked

Under FOIA, an agency must provide “a relatively detailed justification, specifically

identifying the reasons why a particular exemption is relevant and correlating those claims with

the particular part of a withheld document to which they apply.” King v. DOJ,

(D.C. Cir. 1987). The burden rests with the agency to “prov[e] the applicability of claimed

exceptions[,] [t]ypically . . . by affidavit.” ACLU,

. Here, the CIA’s affidavits

satisfy that burden.

1. Exemption 5

Exemption 5 exempts from disclosure “inter-agency or intra-agency memorandums or

letters that would not be available by law to a party other than an agency in litigation with the

agency.”

(b)(5). Exemption 5 “incorporates the traditional privileges that the

Government could assert in civil litigation against a private litigant,” such as attorney work-

product, attorney-client, and deliberative process privileges. Loving v. Dept. of Def.,

(D.C. Cir. 2008) (internal quotation marks omitted).

5 The deliberative process privilege incorporated in Exemption 5 in turn protects from

disclosure communications among agencies to “prevent injury to the quality of agency

decisions.” Horowitz v. Peace Corps,

(D.C. Cir. 2005) (quoting NLRB. v.

Sears, Roebuck & Co.,

(1975)); see Dudman Commc’ns Corp. v. Dep’t of the

Air Force,

(D.C. Cir. 1987) (the key question with Exemption 5 is “whether

the disclosure of materials would expose an agency’s decisionmaking process in such a way as to

discourage candid discussion within the agency and thereby undermine the agency’s ability to

perform its functions”). FOIA’s deliberative process privilege covers “documents reflecting

advisory opinions, recommendations and deliberations comprising part of a process by which

governmental decisions and policies are formulated.” Petrol. Info. Corp. v. U.S. Dep’t of

Interior,

(D.C. Cir. 1992) (citation and internal quotation marks omitted).

To invoke the deliberative process privilege, an agency must demonstrate the withheld

information is “predecisional” and “deliberative.” Judicial Watch,

. Information

is predecisional if it precedes an agency decision. Morley v. CIA,

(D.C.

Cir. 2007). Information is “deliberative” if “it reflects the give-and-take of the consultative

process.” Judicial Watch,

. Documents withheld under the deliberative process

privilege typically “reflect an agency’s preliminary positions or ruminations about how to

exercise discretion on some policy matter.” Petrol. Info.,

; see also Wolfe v.

Dep’t of Health & Human Servs.,

, 774–75 (D.C. Cir. 1988) (en banc) (information

agency provided to other agencies as part of a consultative process not subject to disclosure

under Exemption 5).

The government properly invoked Exemption 5’s deliberative process privilege to

withhold the criminal referral document. While investigating Schneider’s background for his

6 employment application, the CIA “determined that they had obtained information that potentially

showed a violation of Federal criminal laws.” Second Shiner Decl. ¶ 3. The document is the

resulting communication from the CIA to the DOJ that “provided [the violation’s] written

summary,”

and “contain[ed] select facts that the CIA considered relevant for DOJ’s

consideration.” Blaine Decl. ¶ 6. As such, “[the document] is a technique by which the

Intelligence Community conveys information related to potential criminal violations to DOJ.”

Second Shiner Decl. ¶ 4. While the document contains factual information, it was “distilled from

certain admissions made during the Agency’s security processing and shows particular

information that CIA officials considered significant.” Blaine Decl. ¶ 6.

The government has demonstrated both Exemption 5 requirements. First, the CIA’s

sworn declarations show that the criminal referral document was predecisional because it did not

constitute a final decision by the CIA, but instead “initiated and served as a preliminary step in

DOJ’s larger analysis as to whether or not a criminal investigation and/or prosecution was

warranted.” Second Shiner Decl. ¶ 3. Second, the declarations show that the document was

deliberative because it “represents an interim step in a much broader interagency process,”

and it “indicates a preliminary determination by the CIA that a certain incident or activity merits

further consideration by the DOJ.” Blaine Decl. ¶ 6. But the DOJ “ultimately decides whether

or not to open a criminal investigation based on information provided in the [document].” Shiner

Decl. ¶ 32. In invoking Exemption 5, the government has demonstrated that revealing the

contents of the document would “inhibit the frank communications and the free exchange of

ideas between federal agencies.”

Because the document was both “predecisional” and

“deliberative,” the CIA properly invoked FOIA Exemption 5 in withholding it. See Judicial

Watch,

.

7 2. Exemption 7(E)

Exemption 7(E) protects “records or information compiled for law enforcement

purposes” that “would disclose techniques and procedures for law enforcement investigations or

prosecutions . . . if such disclosure could reasonably be expected to risk circumvention of the

law.”

(b)(7)(E). This Circuit has recognized that “[b]ackground investigations

conducted to assess an applicant’s qualification . . . inherently relate to law enforcement.”

Morley,

; see Mittleman v. Off. of Pers. Mgmt.,

, 1243 (D.C. Cir.

1996) (per curiam) (holding that personnel background investigations have a law enforcement

purpose because they are “consistent with the interests of . . . national security” and

“enforcement of the law fairly includes not merely the detection and punishment of violations of

law but their prevention” (internal quotation marks and citations omitted)); see also Sack v. U.S.

Dep’t of Def.,

(D.C. Cir. 2016) (permitting the government to withhold

documents describing an agency’s polygraph procedures and techniques where the agency used

polygraphs to “screen applicants for security clearances so that they may be deemed suitable for

work”).

In interpreting whether a record’s contents present a threat of circumvention if released,

federal courts “refrain from adopting an overly formalistic approach,” Morley,

,

and recognize that the exemption “sets a relatively low bar for the agency to justify

withholding.” Blackwell v. FBI,

(D.C. Cir. 2011). Properly invoked, Exemption

7(E) “requires that the [agency] demonstrate logically how the release of the requested

information might create a risk of circumvention of the law.” Mayer Brown LLP v. IRS,

(D.C. Cir. 2009) (alterations adopted and internal quotation marks omitted).

The Exemption “looks not just for circumvention of the law, but for a risk of circumvention; not

8 just for an actual or certain risk of circumvention, but for an expected risk; not just for an

undeniably or universally expected risk, but for a reasonably expected risk; and not just for

certitude of a reasonably expected risk, but for the chance of a reasonably expected risk.”

.

The government properly invoked Exemption 7(E) to protect law enforcement techniques

and procedures—specifically, polygraph programs and techniques that the CIA uses to “assess

the suitability of applicants and current employees who may be entrusted with classified

information,” Blaine Decl. ¶ 7; see also Shiner Decl. ¶ 38; Second Shiner Decl. ¶ 4. In

Schneider’s case, the CIA compiled the criminal referral document “for law enforcement

purposes” and “as part of [Schneider’s] national security background investigation.”

These

programs and techniques “are designed with an eye toward ensuring the protection of sensitive

national security information and the workforce as a whole.” Blaine Decl. ¶ 7. As such, the

criminal referral document contains information about “the methods and techniques used by the

[CIA] in screening applicants,” Second Shiner Decl. ¶ 4, and revealing its contents “would tend

to show what types of disclosures to the Agency are deemed problematic and what triggers the

Agency’s crimes reporting obligations.” Blaine Decl. ¶ 7. Disclosing the document also may

enable “future applicants and those with intent to harm the government [to] tailor their responses

during polygraph sessions and screening interviews to circumvent security procedures.”

“These individuals could then make unauthorized disclosures of such information and cause

serious harm to national security.” Shiner Decl. ¶ 38. Because the government has sufficiently

detailed both the information’s law enforcement purpose and the risk that disclosure would

circumvent the law, the CIA properly invoked FOIA Exemption 7(E) to withhold the criminal

referral document.

9 For these same reasons, the Court denies Schneider’s request for in camera review. See

Pl.’s Opp’n to Second Renewed Mot. for Summ. J. at 9, Dkt. 36. “When the agency meets its

burden by means of affidavits, in camera review is neither necessary nor appropriate.” ACLU,

(internal quotation marks omitted). The government has met its burden of

establishing the exemptions’ applicability with its sworn declarations.

B. Privacy Act Exemptions (j)(1), (k)(2)

The Privacy Act provides citizens the right of access to a “system of records” maintained

by an agency. 5 U.S.C. § 552a(d)(1). As with FOIA, the Privacy Act permits agencies to limit

individuals’ right of access to systems of records. See 5 U.S.C. § 552a(j)–(k). The Privacy Act

specifically grants an agency head the authority to promulgate rules exempting systems of

records. Sussman v. U.S. Marshals Serv.,

(D.C. Cir. 2007).

Here, the government invokes Exemptions (j)(1) and (k)(2). 1 Exemption (j)(1) authorizes

the head of an agency to promulgate rules “to exempt any system of records within the agency”

from disclosure “if the system of records is maintained by the Central Intelligence Agency.” 5

U.S.C. § 552a(j)(1). Similarly, Exemption (k)(2) authorizes the head of an agency to promulgate

rules “to exempt any system of records within the agency” from disclosing “investigatory

material compiled for law enforcement purposes” by an agency whose primary function is not

criminal law enforcement. 5 U.S.C. § 552a(k)(2). As the government maintains, the Director of

1 Schneider argues that the government has not invoked Privacy Act (j)(1) and (k)(2) exemptions in its second renewed motion for summary judgment. See Pl.’s Opp’n to Second Renewed Mot. for Summ. J. at 4–5, 5 n.4 (“[The government] has not addressed the scope of the continued application of the Privacy Act exemptions in the [Shiner or Blaine Declarations].”). But the applicability of these exemptions is properly before the Court because the government references both exemptions in the sworn declarations it submitted with its motion, see Defs.’ Statement. of Material Facts ¶¶ 12–14, 17–18; see also Fed. R. Civ. P. 56(c)(3); Durant v. District of Columbia Gov’t,

(D.C. Cir. 2017) (“[A] District Court may consider other materials in the record.” (citation and internal quotation marks omitted)).

10 the CIA has promulgated regulations exempting the agency’s systems of records under both

Privacy Act provisions. See

(d)(1) (exempting access to systems of records

“that consist of, pertain to, or would otherwise reveal intelligence sources and methods” under

(j)(1));

(b) (exempting access to systems of records “that consist of, pertain

to, or would otherwise reveal information that is . . . investigatory in nature and compiled for law

enforcement purposes” under (k)(2)).

The document contains both intelligence sources and investigatory information. As the

declarations attest, the CIA’s search involved files held by the Agency’s Directorate of Support,

an office that “oversees offices that are responsible for personnel-related matters and employee

and applicant screening and fitness for duty, including . . . polygraph testing.” Shiner Decl. ¶ 11.

The criminal referral document Schneider seeks access to includes information about the

polygraph program, an intelligence source and method that the Director of the CIA has, by

regulation, exempted from access under (j)(1).

¶¶ 15–16 (“The DCIA has implemented this

statutory provision by exempting from the access provisions . . . polygraph records and any

portions of all systems of records maintained by the CIA.”); see also

(d)(1).

The document further includes information “used to assess the suitability of . . . applicants and

current employees,” investigatory information that the Director of the CIA has, by regulation,

exempted from access under (k)(2). Shiner Decl. ¶ 20; see also

(b). Thus,

the government’s invocation of the Privacy Act Exemptions (j)(1) and (k)(2) is appropriate.

C. Segregability

Lastly, the CIA has satisfied its segregability obligations. Under FOIA, “[a]ny

reasonably segregable portion of a record shall be provided to any person requesting such record

after deletion of the portions which are exempt.”

(b). While Schneider does not

11 contest the sufficiency of the segregability determination, the Court has an affirmative duty to

consider whether the agency has complied with FOIA’s segregability requirement. See Trans-

Pacific Policing Agreement v. U.S. Customs Serv.,

(D.C. Cir. 1999).

An agency can satisfy its segregability obligations by “provid[ing] a detailed description

of the information withheld through the submission of a so-called Vaughn Index, sufficiently

detailed affidavits or declarations, or both.” Defs. of Wildlife v. U.S. Border Patrol,

(D.D.C. 2009) (internal quotation marks omitted); see also Maydak v. DOJ,

(D.C. Cir. 2000) (“[T]he government does not necessarily have to produce a Vaughn

index to justify denying a FOIA request.”); Brinton v. Dep’t of State,

(D.C.

Cir. 1980) (upholding the government’s withholding of documents under FOIA Exemption 5

based on affidavits alone). An agency is entitled to a presumption of compliance with the

obligation to disclose reasonably segregable material, Boyd v. Crim. Div. of DOJ,

(D.C. Cir. 2007), so long as its supporting materials “give the reviewing court a reasonable

basis to evaluate [the withholding].” Judicial Watch,

(internal quotation marks

omitted).

Here, the CIA submitted three sworn declarations, each of which represented that the

CIA staff reviewed the criminal referral document and “conducted a page-by-page, line-by-line

review and released all non-exempt, reasonably segregable information.” Blaine Decl. ¶ 8; see

also Shiner Decl. ¶ 44; Second Shiner Decl. ¶ 5. Given the limited nature of the requested

document and that each of the declarations attest to a thorough examination of the document, the

CIA has satisfied its segregability obligation. See Judicial Watch,

.

12 CONCLUSION

For the foregoing reasons, the government’s motion for summary judgment is granted. A

separate order consistent with this decision accompanies this memorandum opinion.

________________________ DABNEY L. FRIEDRICH United States District Judge October 28, 2020

13