UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

DEEN HALEEM,

Plaintiff, v. Civil Action No. 23-1471 (JEB)

UNITED STATES DEPARTMENT OF DEFENSE,

Defendant.

MEMORANDUM OPINION

Plaintiff Deen Haleem is a Master Sergeant in the U.S. Army Reserves whose position

requires him to hold a Top Secret security clearance. After the Government revoked his

clearance for national-security concerns, he submitted a Privacy Act and Freedom of Information

Act request in 2022 to the Army Intelligence and Security Command (INSCOM) — a component

of the Department of Defense — for documents that the Government relied on in its revocation

decision. After receiving heavily redacted documents and learning that many others were

withheld entirely, Haleem filed a more targeted request with the agency a year later for the

redacted information and withheld documents, which was denied. He then commenced this

Privacy Act and FOIA suit against DOD and the Department of Justice in May 2023.

After the Court narrowed the case in response to the Government’s Motion to Dismiss

(including by dismissing DOJ as a party), both sides moved for summary judgment on what

survived. In an Opinion last December, this Court granted in part and denied in part summary

judgment to both parties. See Haleem v. DOD,

(D.D.C. Dec. 18, 2024). It

determined that the Government’s withholdings were mostly justified under both Privacy Act

1 Exemption (k)(2) and FOIA Exemption 7(E), but that there were 17 pages of inscrutable code

that were not covered by Exemption 7(E) and thus could be released to Haleem under FOIA. Id.

at *6. Unhappy with this outcome, DOD now asks the Court to reconsider its Opinion solely

regarding the released pages, renewing its previous arguments on Exemptions 7(E) and (k)(2),

along with three other FOIA exemptions. See ECF Nos. 44 (Recon. Mot.); 29 (Def. MSJ) at 16–

35. After holding a hearing on this issue and obtaining supplemental briefing from DOD that

more thoroughly explains the meaning of and threat posed by the release of the code in the pages

at issue, the Court now agrees that the material could be used to circumvent the law and will thus

grant the Motion.

I. Legal Standard

The Government files its Motion under Federal Rules of Civil Procedure 59(e) and 60(b).

Rule 59(e) permits the filing of a motion to alter or amend a judgment within 28 days after the

judgment’s entry. Since Defendant’s filing was timely, the Motion will be considered under the

less-stringent Rule 59(e) standard. See Bishop v. Vilsack,

, at *1 (D.D.C. July

26, 2024) (“[T]he practice in this jurisdiction is to construe Rule 60(b) motions filed, as here,

within 28 days of the judgment as Rule 59(e) motions to alter or amend the judgment.”)

(quotation marks omitted). “A Rule 59(e) motion is discretionary and need not be granted unless

the district court finds that there is an intervening change of controlling law, the availability of

new evidence, or the need to correct a clear error or prevent manifest injustice.” Firestone v.

Firestone,

(D.C. Cir. 1996) (quotation marks omitted); see also 11 Charles

Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 2810.1 (3d ed. 2025) (stating

same “four basic grounds” for Rule 59(e) motions). Rule 59(e), moreover, “is not a vehicle to

present a new legal theory that was available prior to judgment,” Patton Boggs LLP v. Chevron

2 Corp.,

(D.C. Cir. 2012), or “to relitigate old matters.” Exxon Shipping Co. v.

Baker,

, 485 n.5 (2008) (quotation marks omitted).

II. Analysis

Under FOIA, “each agency, upon any request for records which (i) reasonably describes

such records and (ii) is made in accordance with published rules . . . [,] shall make the records

promptly available to any person.”

(a)(3)(A). If the records fall into one of nine

statutorily created exemptions, however, the Government need not turn them over.

§ 552(b)(1)–(9). Exemption 7(E), for instance, protects law-enforcement records that “would

disclose techniques and procedures for law enforcement investigations or prosecutions, or would

disclose guidelines for law enforcement investigations or prosecutions if such disclosure could

reasonably be expected to risk circumvention of the law.” Id. § 552(b)(7)(E); see Blackwell v.

FBI,

(D.C. Cir. 2011) (applying “risk of circumvention” standard to law-

enforcement techniques and procedures as well as to guidelines) (quotation marks omitted);

Mayer Brown LLP v. IRS,

(D.C. Cir. 2009).

The Government need clear only a low bar to withhold information under Exemption

7(E). See McClanahan v. DOJ,

, 54 (D.D.C. 2016). It must, however,

provide at least enough information for the Court to logically deduce both that the information

reveals tactics in law-enforcement investigations or prosecutions and that the release of such

information creates a risk of circumvention of the law. See Clemente v. FBI,

(D.D.C. 2010); Blackwell,

. While a foreseeable-harm analysis is also typically

required to withhold documents, “because . . . [E]xemption [7(E)] already requires a showing of

risk of circumvention of the law, no further foreseeable-harm analysis is necessary.” Gun

Owners of Am., Inc. v. FBI,

, at *4 (D.D.C. Jan. 18, 2024); see also

3 100Reporters v. U.S. Dep’t of State,

(D.D.C. 2022); Buzzfeed, Inc. v.

DHS,

, 148 n.1 (D.D.C. 2022).

The Government contends that the Court erred in finding the 17 pages releasable because

while the code on these pages may not mean anything to the average person, it can be deciphered

by foreign intelligence actors or cyber criminals and used to evade DOD investigations, thus

qualifying the pages to be withheld under Exemption 7(E). See Recon. Mot. at 16–20; ECF No.

48-1 (Third Supp. Decl. of Michael T. Heaton; Army Counterintelligence Special Agent Decl.).

To bolster this assertion, Defendant provides a supplemental declaration from Michael T.

Heaton, Director of INSCOM’s Freedom of Information and Privacy Act Office, stating that the

code contains both “general administrative data,” such as the “investigator[’]s name, time of

digital screening, [and] benign control settings,” and “more technical data,” such as “forensic

tool name and version, speed and sectors searched, specific files paths searched, key word and

digital search techniques employed, type of media device, key descriptors of the exploitation

results, [and] digital media security identifier group.” Heaton Decl. at 4. Such information,

Heaton states, provides the details necessary for bad actors “to implement anti-forensic

techniques to make it difficult or impossible for counterintelligence or criminal forensic analysts

to recover information, or . . . to alter logs and files, or to create false time event timelines

(timestamps), or [to] employ[] . . . malware to obfuscate digital trails.”

An unnamed Army

Counterintelligence Special Agent — in a separate declaration — concurs and notes that the code

on these pages was designed to provide an accessible overview of the investigation for future

investigators, which means that bad actors could easily and quickly use it to gain insight into

investigations, change records, and avoid detection. See generally Special Agent Decl. at ECF

pp. 19–21. Heaton emphasizes that such threats are substantial given that manipulation of secure

4 records has occurred before. See Heaton Decl. at 4 (“Forensic analysis has previous[ly] revealed

instances where actors have overwritten files, manipulated timestamps, and returned systems to a

‘clean state’ to prevent detection and analysis.”).

Previous courts have found that if a declarant states that withheld information details a

technique used for law-enforcement investigations and that such information could be

“reasonably expected” to lead to the circumvention of law, the Government satisfies the

Exemption 7(E) requirements. See Mayer Brown LLP,

(quotation marks

omitted); Blackwell,

. For example, when the Government claims that the

information at issue could allow outside actors access to a secure system and the ability to

manipulate that system, courts have concluded that there is a reasonable risk of circumvention of

law. See Skinner v. DOJ,

, 113–14 (D.D.C. 2012) (holding that computer

codes similar to code here qualified as information that could be used to circumvent the

law), aff’d sub nom. Skinner v. Bureau of Alcohol, Tobacco, Firearms & Explosives,

(D.C. Cir. May 31, 2013); Strunk v. U.S. Dep’t of State,

(D.D.C. 2012) (recognizing risk of circumvention where disclosure of data could “facilitate[]

access to and navigation through [a law-enforcement database] and reveal[] mechanisms for

access to and navigation through [the database]”) (quotation marks omitted). Since the

statements provided by DOD clarify that the code discloses law-enforcement techniques and that

there is a reasonable risk that cyber criminals could use such information to navigate a secure

system and thus circumvent the law, the pages can be withheld under Exemption 7(E). As that

exemption covers all 17 pages, moreover, the Court need not address whether other FOIA

exemptions apply. See Ctr. for Nat’l Sec. Stud. v. DOJ,

(D.C. Cir. 2003).

5 In a final effort to obtain the pages, Haleem asserts that they must be released under the

Privacy Act, and that the Government has not claimed that an exemption allows it to withhold

them. See ECF No. 49 (Pl. Resp. to Supp. Filing); Martin v. Off. of Special Counsel, Merit Sys.

Prot. Bd.,

(D.C. Cir. 1987) (stating Government must claim valid

exemption under both Acts to withhold material). The Court found earlier, however, that the 113

pages of material originally at issue (which include the 17 pages relevant here) could be withheld

under Privacy Act Exemption (k)(2) because they are “investigatory material compiled for law

enforcement purposes.” 5 U.S.C. § 552a(k)(2); see Haleem,

, at *5. This Act

thus offers no relief.

III. Conclusion

For these reasons, the Court will grant Defendant’s Motion for Reconsideration and allow

Defendant to withhold the 17 pages at issue. A separate Order so stating will issue this day.

/s/ James E. Boasberg JAMES E. BOASBERG Chief Judge Date: July 25, 2025

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