Henderson v. Office of the Director of National Intelligence , 151 F. Supp. 3d 170 ( 2016 )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
WILLIAM H. HENDERSON, )
)
Plaintiff, )
)
v. ) Civil Action No. 15-103 (RBW)
)
OFFICE OF THE DIRECTOR )
OF NATIONAL INTELLIGENCE, and )
OFFICE OF PERSONNEL )
MANAGEMENT, )
)
Defendants. )
____________________________________)
MEMORANDUM OPINION
William H. Henderson, the plaintiff in this civil matter, alleges that the defendants, the
Office of the Director of National Intelligence (“ODNI”) and the Office of Personnel
Management (“OPM”), violated the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552
(2012), by improperly withholding information subject to disclosure under the FOIA. Complaint
(“Compl.”) ¶¶ 20, 25. Pending before the Court is the Defendants’ Motion for Summary
Judgment (“Defs.’ Mot.”), which asserts that the information at issue was properly withheld
pursuant to 5 U.S.C. § 552(b)(7)(E) (“Exemption 7(E)”), Defendants’ Memorandum of Law in
Support of Their Motion for Summary Judgment (“Defs.’ Mem.”) at 1. After carefully
considering the parties’ submissions, the Court concludes for the reasons that follow that it must
grant summary judgment to the defendants. 1
1
In addition to the filings already identified, the Court considered the following submissions in rendering its
decision: (1) the Defendants’ Statement of Material Facts Not in Dispute (“Defs.’ Facts”); (2) the Declaration of
Lisa M. Loss (“Loss Decl.”); (3) the Declaration of Brian Prioletti (“Prioletti Decl.”); (4) the plaintiff’s
(continued . . . )
I. BACKGROUND
In December 2012, the OPM and the ODNI jointly issued a revised version of the Federal
Investigative Standards (“FIS”), which “provide the standards for all security and suitability
background investigations of individuals working for, or on behalf of, the executive branch or
who seek to perform work for, or on behalf of, the executive branch and individuals with access
to federally controlled facilities and information systems.” Defs.’ Facts ¶ 2; Pl.’s Facts ¶ 2.
“The FIS contain detailed procedures for conducting background investigations, including the
specific types of records to be gathered and types of sources to be contacted or interviewed.”
Defs.’ Facts ¶ 2; Pl.’s Facts ¶ 2. The sole appendix to the FIS, the Expandable Focused
Investigation Model (“EFI Model”), “sets forth the steps investigators are to pursue if derogatory
or discrepant information develops during the course of an investigation.” Defs.’ Facts ¶ 2; Pl.’s
Facts ¶ 2.
The plaintiff, who heads a “personnel security consulting firm,” Compl. ¶ 3, submitted
FOIA requests to the OPM and the ODNI in July 2013 seeking from each defendant the
disclosure of “the December 2012 version of the Federal Investigative Standards.” Defs.’ Facts
¶ 1; Pl.’s Facts ¶ 1. In September 2013, the OPM informed the plaintiff that it had determined
that the FIS and EFI Model would be withheld in full under Exemption 7(E) of the FOIA, and
the ODNI concurred with the OPM’s determination. Defs.’ Facts ¶ 5; Pl.’s Facts ¶ 5. In April
2014, after an administrative appeal of the defendants’ initial decision to withhold the requested
information, the OPM, with the ODNI’s concurrence, partially released portions of the FIS but
continued to withhold the EFI Model in its entirety. See Defs.’ Facts ¶¶ 7–8; Pl.’s Facts ¶¶ 7–8.
(continued . . . )
Memorandum in Opposition to [the] Defendants’ Motion for Summary Judgment (“Opp’n”); (4) the plaintiff’s
Response to [the] Defendants’ Statement of Material Facts Not in Dispute (“Pl.’s Facts”); and (5) the Defendants’
Reply in Support of Their Motion for Summary Judgment (“Reply”).
2
The defendants relied on Exemption 6 of the FOIA, 5 U.S.C. § 552(b)(6), and Exemption 7(E) to
support the redactions to the FIS and withholding of the EFI Model. Defs.’ Facts ¶ 8; Pl.’s Facts
¶ 8.
That same month, the plaintiff lodged a second administrative appeal that challenged the
defendants’ reliance on Exemption 7(E) to withhold the requested information. Defs.’ Facts ¶ 9;
Pl.’s Facts ¶ 9. Several months after his second appeal, the plaintiff filed his complaint in this
Court seeking to compel the defendants to disclose the balance of the information he requested.
Defs.’ Facts ¶ 11; Pl.’s Facts ¶ 11. After the complaint was filed and answered, the defendants
provided a less redacted version of the FIS in May 2015, but continued to withhold the EFI
Model in its entirety. Defs.’ Facts ¶¶ 11–12; Pl.’s Facts ¶¶ 11–12; see also Defs.’ Mem., Exhibit
(“Ex.”) C (redacted version of FIS disclosed to the plaintiff in May 2015). The defendants
continued to rely on Exemption 7(E) to justify their redactions from the FIS and their continued
withholding of the entire EFI Model. Defs.’ Facts ¶ 12; Pl.’s Facts ¶ 12. Then, in July 2015, the
defendants provided yet another redacted version of the FIS, which “removed certain redactions
from the copy produced to [the p]laintiff on May 29, 2015, in order to be consistent with the
copy provided to [the p]laintiff on April 1, 2014.” Defs.’ Facts ¶ 14; Pl.’s Facts ¶ 14. The
defendants continue to justify their redactions to the FIS and withholding of the EFI Model based
on Exemption 7(E). See Defs.’ Facts ¶ 15; Pl.’s Facts ¶ 15; see also Defs.’ Mem., Ex. E
(redacted version of FIS disclosed to the plaintiff in July 2015).
II. STANDARD OF REVIEW
Courts will grant a motion for 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). In resolving a motion for summary judgment, all reasonable
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inferences that may be gleaned from the facts before the court must be construed in favor of the
non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The moving
party bears the burden of demonstrating the absence of a genuine issue of material fact, Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986), and may do so by “citing to particular parts of
materials in the record, including . . . affidavits or declarations,” Fed. R. Civ. P. 56(c)(1)(A).
Factual assertions in the moving party’s affidavits or declarations may be accepted as true unless
the opposing party submits affidavits, declarations, or documentary evidence to the contrary.
Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992).
Courts review an agency’s response to a FOIA request de novo, 5 U.S.C. § 552(a)(4)(B),
and “FOIA cases typically and appropriately are decided on motions for summary judgment,”
ViroPharma, Inc. v. Dep’t of Health & Human Servs., 839 F. Supp. 2d 184, 189 (D.D.C. 2012)
(citations omitted). In a FOIA action to compel production of agency records, the agency “is
entitled to summary judgment if no material facts are in dispute and if it demonstrates ‘that each
document that falls within the class requested has either been produced . . . or is wholly exempt
from the [FOIA’s] inspection requirements.’” Students Against Genocide v. U.S. Dep’t of State,
257 F.3d 828, 833 (D.C. Cir. 2001) (quoting Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir.
1978)). And “even if [the] agency establishes an exemption, it must nonetheless disclose all
reasonably segregable, nonexempt portions of the requested record(s)” to comply with its
requirements under the FOIA. Roth v. U.S. Dep’t of Justice, 642 F.3d 1161, 1167 (D.C. Cir.
2011) (quoting Assassination Archives & Research Ctr. v. CIA, 334 F.3d 55, 57 (D.C. Cir.
2003)).
Summary judgment in a FOIA case may be based solely on information provided in an
agency’s supporting affidavits or declarations if they are “relatively detailed and non-
4
conclusory.” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (quoting
Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981)). The affidavits or
declarations should “describe the documents and the justifications for nondisclosure with
reasonably specific detail, demonstrate that the information withheld logically falls within the
claimed exemption, and [ ] not [be] controverted by either contrary evidence in the record [or] by
evidence of agency bad faith.” Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir.
1981). “To successfully challenge an agency’s showing that it complied with the FOIA, the
plaintiff must come forward with ‘specific facts’ demonstrating that there is a genuine issue with
respect to whether the agency has improperly withheld extant agency records.” Span v. U.S.
Dep’t of Justice, 696 F. Supp. 2d 113, 119 (D.D.C. 2010) (quoting U.S. Dep’t of Justice v. Tax
Analysts, 492 U.S. 136, 142 (1989)).
III. ANALYSIS
A. The “Law Enforcement Purposes” Threshold Requirement Under 5 U.S.C.
§ 552(b)(7)
Pursuant to Exemption 7(E), an agency may withhold:
[R]ecords or information compiled for law enforcement purposes, but only to the
extent that the production of such law enforcement records or information . . . 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 . . . .
5 U.S.C. § 552(b)(7)(E) (emphasis added).
The plaintiff challenges the applicability of Exemption 7(E) to records compiled for civil
law enforcement purposes, arguing that the District of Columbia Circuit’s decision in Morley v.
v. CIA, 508 F.3d 1108 (D.C. Cir. 2007), which the plaintiff concedes controls the outcome of
this case, was improperly based on the Circuit’s decades-old recognition in Pratt v. Webster, 673
5
F.2d 408, 420 n.32 (D.C. Cir. 1982), that Exemption 7(E) extends to records compiled for both
civil and criminal law enforcement purposes. See Opp’n at 4–5. According to the plaintiff,
certain post-Pratt amendments to Exemption 7(E) undermine this Circuit’s continued application
of that exemption to civil investigations. See id. at 5 (arguing that this Circuit has not had “the
opportunity to consider whether the Pratt justification for extending FOIA Exemption 7(E) to
civil investigations was still valid in light of those amendments to [the] FOIA”).
The Court disagrees with the plaintiff’s contention that Exemption 7(E) should be limited
in scope to records compiled for criminal purposes only. As this Circuit has recognized, “[t]he
term ‘law enforcement’ in Exemption 7 refers to the act of enforcing the law, both civil and
criminal.” Pub. Emps. for Envtl. Responsibility v. U.S. Section, Int’l Boundary & Water
Comm’n, 740 F.3d 195, 203 (D.C. Cir. 2014) (citing Tax Analysts v. Internal Revenue Serv.,
294 F.3d 71, 77 (D.C. Cir. 2002)). If Congress intended to limit Exemption 7(E)’s application to
records compiled for criminal purposes only, it certainly knew how to do so. See, e.g., 5 U.S.C.
§ 552(b)(7)(D) (referring to records “compiled by a criminal law enforcement authority in the
course of a criminal investigation”). In 1986, Congress broadened the exemption by making it
clear that Exemption 7 applies not merely to documents compiled in the course of an
investigation, see 132 Cong. Rec. H9466 (daily ed. Oct. 8, 1986) (1986 amendments to the FOIA
“would broaden the scope of the exemption to include ‘records or information compiled for law
enforcement purposes,’ regardless of whether they may be investigatory or noninvestigatory”),
but also to techniques, procedures, or guidelines compiled for a law enforcement purpose,
regardless of whether they are investigative or non-investigative, see id. (addition of “guidelines”
to Exemption 7(E), “like the deletion of ‘investigatory’ from the exemption’s threshold language,
is intended to make clear that ‘techniques and procedures for law enforcement investigations and
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prosecutions’ can be protected, regardless of whether they are ‘investigative’ or ‘non-
investigative’”). The Court is unaware of any indication that, after Pratt’s recognition of the
applicability of Exemption 7 to records compiled for both civil and criminal law enforcement
purposes, Congress acted to reject this understanding of Exemption 7’s scope.
Accordingly, in Mittleman v. Office of Pers. Mgmt., this Circuit applied Exemption 7 to
records compiled for the purpose of conducting background investigations of individuals seeking
employment or contracts with the federal government, concluding that records or information
pertaining to background investigations meet the exemption’s threshold requirement that the
records be “compiled for law enforcement purposes.” 76 F.3d 1240, 1243 (D.C. Cir. 1996) (per
curiam) (recognizing that “[e]nforcement of the law fairly includes not merely the detection and
punishment of violations of law but their prevention” and holding that records of the OPM’s
investigation of the plaintiff’s background were “compiled for law enforcement purposes” under
5 U.S.C. § 552(b)(7) (alteration in original) (quoting Miller v. United States, 630 F. Supp. 347,
349 (E.D.N.Y. 1986))). And, in Morley, the Circuit reaffirmed that “[b]ackground investigations
conducted to assess an applicant’s qualification, such as the [Central Intelligence Agency’s]
‘clearance and investigatory processes,’ inherently relate to law enforcement.” 508 F.3d at 1129.
The FIS and EFI Model at issue here “were compiled . . . to provide consistent
background investigation standards for investigations of individuals working for, or on behalf of,
the executive branch or who seek to perform work for, or on behalf of, the executive branch, as
well as for individuals who would access federally controlled facilities and information
systems.” Loss Decl. ¶ 14; see also Prioletti Decl. ¶ 19 (“The FIS are guidelines that govern
national security and suitability investigations for all individuals working for or on behalf of the
Executive Branch of the Federal Government.”). Under this Circuit’s precedents in Morley and
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Mittleman, the records withheld by the defendant here were undoubtedly compiled for law
enforcement purposes. And, as the plaintiff concedes this to be the case, see Opp’n at 3, 4
(conceding that “the binding case law from the D.C. Circuit is memorialized in” Morley and
recognizing “the limits of this Court’s authority to rule contrary to binding case law”), the
plaintiff’s arguments with regard to the threshold requirement of Exemption 7 must fail.
Even had the plaintiff not conceded this point, the Court would nevertheless conclude
that the defendant has established that the FIS and EFI Model meet Exemption 7’s threshold
requirement. “To show that . . . documents were ‘compiled for law enforcement purposes,’ the
[agency] need only ‘establish a rational nexus between the investigation and one of the agencies’
law enforcement duties and a connection between an individual or incident and a possible
security risk or violation of federal law.’” Blackwell v. FBI, 646 F.3d 37, 40 (D.C. Cir. 2011)
(quoting Campbell v. Dep’t of Justice, 164 F.3d 20, 32 (D.C. Cir. 1998)). Here, the FIS and EFI
Model set forth the process used by the defendants in their efforts to prevent bad actors from
obtaining access to sensitive government information, technologies, and facilities. See Loss
Decl. ¶ 21 (“The OPM’s personnel security and suitability investigations . . . ensure that
applicants and other persons subject to investigation . . . have not broken the law or engaged in
other conduct making them unsuitable for appointment or ineligible for a clearance . . . .”);
Prioletti Decl. ¶¶ 2, 28–29 (explaining the ODNI’s responsibility over “policies and procedures
governing investigations and adjudications for eligibility for access to classified information and
eligibility to hold a sensitive position” and stating that release of the withheld information from
the FIS and the EFI Model “would jeopardize the [g]overnment’s ability to validate [an]
individual’s eligibility for a security clearance, which could result in the unauthorized disclosure
of classified information by individuals unsuitable for national security clearances”). The
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defendants further state that the information withheld from the FIS, and the EFI Model, which
expands on the FIS, constitutes information that sheds light on the defendants’ process for
conducting background investigations, and that the release of this information “could cause an
individual, foreign intelligence organization, or terrorist organization seeking to circumvent the
investigation[] and obtain a favorable adjudication for a particular individual” to supply false
data that would be difficult to detect or to omit information that would evade further scrutiny.
See generally Loss Decl. ¶¶ 25–36; Prioletti Decl. ¶¶ 26–32. The defendants have amply
demonstrated, as set forth in Blackwell, 646 F.3d at 40, a “rational nexus” between the
background investigation techniques and each agency’s responsibility to prevent potential bad
actors from obtaining security clearances and access to government technologies and facilities,
and a “connection” between potential bad actors and the risk of a breach of security. The
threshold question now answered, the Court turns to whether the defendants have carried their
burden of demonstrating that the withheld records or information rise to the level of the harm
articulated in Exemption 7(E).
B. Application of Exemption 7(E)
Exemption 7(E) protects from disclosure information contained in 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.” 5 U.S.C.
§ 552(b)(7)(E). “Exemption 7(E) sets a relatively low bar for the agency to justify withholding:
‘Rather than requiring a highly specific burden of showing how the law will be circumvented,
exemption (7)(E) only requires that the [agency] demonstrate logically how the release of the
requested information might create a risk of circumvention of the law.’” Blackwell, 646 F.3d at
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42 (alteration in original) (quoting Mayer Brown LLP v. Internal Revenue Serv., 562 F.3d 1190,
1193 (D.C. Cir. 2009)). Exemption 7(E)
looks not just for circumvention of the law, but for a risk of circumvention; not 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.
Mayer Brown, 562 F.3d at 1193.
The Loss and Prioletti Declarations provide a lengthy explanation of the contents of the
FIS and EFI Model and the risk of harm should the information withheld from these records be
disclosed. See generally Loss Decl. ¶¶ 14–36; Prioletti Decl. ¶¶ 19–32. The “FIS were designed
to supersede all previously issued investigative standards and take into consideration the
counterintelligence, security, and suitability concerns” of the federal government. Loss Decl.
¶ 15. Whereas pre-2012 “standards and guidance were broad and afforded agencies significant
discretion in interpretation,” the 2012 FIS “were designed to promote reciprocity to the extent
possible and therefore required more granular instruction for every tier of investigation.” Id.
Consistent with this objective, the FIS detail “the specific types of records to be gathered and the
types of sources to be contacted or interviewed,” “specific guidance with respect to how far back
in time certain types of records should be searched[,] and whether additional efforts are required
should outreach to sources be unsuccessful.” Id. ¶ 16. The FIS thus “provide insight into the
varying levels of effort, and the types of information required, to complete a satisfactory
investigation,” id., and the EFI Model “provides insight into what types of information would
generate additional scrutiny during an investigation[,] and what particular investigative steps
would be taken when the need for additional scrutiny is triggered,” id. ¶ 17. “Complete access to
the FIS (and EFI Model) would therefore provide direction to a person attempting to manipulate
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the investigative process, by providing insight into the likelihood of detection were he or she to
conceal, misrepresent, or falsify certain required information.” Id. ¶ 19. “The very purpose of
the [FIS] and EFI Model—to ensure that unsuitable individuals do not gain access to sensitive
government positions, facilities, technologies, clearances, or information—would be defeated if
they were disclosed to the public.” Id. Consistent with the defendants’ concerns regarding the
sensitivity of the information in the revised FIS and EFI Model, the ODNI designated them as
“[For Official Use Only] . . . to permit limited distribution to [intelligence community] security
contractors who perform background security investigations on behalf of the [g]overnment and
are required to sign a nondisclosure agreement.” Prioletti Decl. ¶ 25. The Court finds the
defendants’ explanation more than sufficient to establish “the chance of a reasonably expected
risk” should the withheld information be disclosed. Mayer Brown, 562 F.3d at 1193.
As previously noted, the plaintiff expressly concedes that the outcome of this case is
settled by Morley, Opp’n at 3, which unequivocally stated that “[i]t is self-evident that
information revealing security clearance procedures could render those procedures vulnerable
and weaken their effectiveness at uncovering background information on potential candidates,”
508 F.3d at 1128–29. And, through the detailed description contained in the Loss and Prioletti
Declarations, the defendants have demonstrated “logically how the release of the requested
information might create a risk of circumvention of the law.” Blackwell, 646 F.3d at 42 (quoting
Mayer Brown, 562 F.3d at 1193). The Court therefore concludes that the defendants properly
withheld information from the FIS and the EFI Model pursuant to Exemption 7(E).
C. Segregability
Under the 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 . . . .” 5
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U.S.C. § 552(b); Roth, 642 F.3d at 1167 (“even if [the] agency establishes an exemption, it must
nonetheless disclose all reasonably segregable, nonexempt portions of the requested record(s)”).
Thus, “it has long been the rule in this Circuit that non-exempt portions of a document must be
disclosed unless they are inextricably intertwined with exempt portions.” Wilderness Soc’y v.
U.S. Dep’t of Interior, 344 F. Supp. 2d 1, 18 (D.D.C. 2004) (Walton, J.) (quoting Mead Data
Cent., Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977)). The agency must
provide “a detailed justification and not just conclusory statements to demonstrate that all
reasonably segregable information has been released.” Valfells v. CIA, 717 F. Supp. 2d 110,
120 (D.D.C. 2010). Nevertheless, “[a]gencies are entitled to a presumption that they complied
with the obligation to disclose reasonably segregable material,” which must be overcome by
some “quantum of evidence” by the requester. Sussman v. U.S. Marshals Serv., 494 F.3d 1106,
1117 (D.C. Cir. 2007).
The defendants state that they conducted a line-by-line review of the FIS on two
occasions and released portions of the FIS deemed to be non-exempt. Prioletti Decl. ¶ 33; see
also Defs.’ Mem., Exs. C & E (redacted versions of the FIS disclosed to the plaintiff in May and
July 2015); Defs.’ Facts ¶ 12 (describing May 2015 release of documents to the plaintiff).
Additionally, the defendants explain that the 29-page EFI Model, the sole appendix to the FIS
that expands on the guidelines contained in the FIS, is in the form of a chart describing “red
flags” that trigger further investigation and setting forth those advanced investigatory steps. See
Prioletti Decl. ¶¶ 31, 34. “The chart contains detailed instructions and criteria . . . that are so
prevalent throughout the document that potentially non-exempt words or phrases are inextricably
intertwined with exempt material throughout the documents,” which would “result in the release
of an unintelligible document.” Id. ¶ 34. The defendants also state that “information in the EFI
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Model that could potentially be non-exempt if released alone should nonetheless be withheld”
because this information, “taking into consideration the layout of the chart,” could allow
potential bad actors “to surmise the trigger points and expanded procedures” detailed in the EFI
Model. Id.
Based upon these representations, the Court finds that the defendants have satisfied their
segregability obligation under the FOIA. See, e.g., Blackwell, 680 F. Supp. 2d at 96 (finding the
agency’s segregability requirement satisfied where the agency’s declaration explained that
“documents were processed to achieve maximum disclosure” and “further disclosure or attempt
to describe information withheld would identify information protected by one of the FOIA
exemptions”); see also Vaughn v. Rosen, 484 F.2d 820, 827 (D.C. Cir. 1973) (agency must state
“in detail which portions of the document are disclosable and which are allegedly exempt”).
And, although the “quantum of evidence” required to rebut the presumption that the defendants
“complied with the obligation to disclose reasonably segregable material” is not clear, Sussman,
494 F.3d at 1117 (citations omitted), the Court is not persuaded by the plaintiff’s contention that,
merely because the defendants released additional information from the FIS after their initial
decision to withhold the entire document, Opp’n at 9–10, the defendants’ representations
regarding segregability at this juncture are insufficient, see Hodge v. FBI, 703 F.3d 575, 582
(D.C. Cir. 2013) (agency’s subsequent disclosure of previously withheld information did not
demonstrate that agency was improperly withholding information). The Court therefore
concludes that the defendants have disclosed all reasonably segregable information.
D. In Camera Review
The plaintiff asserts that the Court should conduct an in camera review of the withheld
portions of the FIS and EFI Model to determine whether the defendants properly withheld these
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materials under Exemption 7(E). Opp’n at 5–7. The District of Columbia Circuit “has
interpreted [the FOIA] to give district court judges broad discretion in determining whether in
camera review is appropriate.” Armstrong v. Exec. Office of the President, 97 F.3d 575, 577–78
(D.C. Cir. 1996) (citations omitted); see also 5 U.S.C. § 552(a)(4)(B) (providing that the district
court “may examine the contents of such agency records in camera to determine whether such
records or any part thereof shall be withheld . . . .” (emphasis added)). Thus, “[if] a district court
believes that in camera inspection is unnecessary ‘to make a responsible de novo determination
on the claims of exemption, it acts within its broad discretion by declining to conduct such a
review.’” Juarez v. Dep’t of Justice, 518 F.3d 54, 60 (D.C. Cir. 2008) (quoting Carter v. Dep’t
of Commerce, 830 F.2d 388, 392 (D.C. Cir. 1987)). Moreover, this Circuit has also stated that
“in camera review is a ‘last resort’ to be used only when the affidavits are insufficient for a
responsible de novo decision.” Hayden v. Nat’l Sec. Agency, 608 F.2d 1381, 1387 (D.C. Cir.
1979) (citing Weissman v. CIA, 565 F.2d 692, 697 (D.C. Cir. 1977)).
Here, as the Court has already found, the Loss and Prioletti Declarations explain in
sufficient detail the contents of the information withheld under Exemption 7(E) and the reasons
why disclosure would risk circumvention of the law. See Loss Decl. ¶¶ 25–33 (describing the
contents of, and setting forth the reasons for withholding, specific subsections of the FIS and the
EFI Model); Prioletti Decl. ¶¶ 29–32 (same). The defendants also provided the redacted FIS that
were disclosed to the plaintiff, Defs.’ Mem., Exs. C & E, and the Court is able to compare each
of the explanations made in the defendants’ declarations with the specific subparagraph withheld
such that the withholdings can be assessed in context. Based on its review, the Court is able to
conclude that the defendants’ declarations “sufficiently describe the documents and set forth
proper reasons for invoking” Exemption 7(E). Juarez, 518 F.3d at 60.
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In addition to the sufficiency of the defendants’ declarations, “if there is no evidence in
the record of agency bad faith, then summary judgment is appropriate without in camera review
of the documents.” Hayden, 608 F.2d at 1387. The plaintiff’s chief complaint in this regard is
that the defendants disclosed additional information from the FIS after their initial decision to
withhold the document in its entirety, and that some of their subsequent disclosures contained
inconsistent redactions. See Opp’n at 6–8. The Court does not discern from these events any
evidence of bad faith on the part of the defendants, nor has the plaintiff convincingly raised any
such concern. Contrary to demonstrating bad faith, the Court views the defendants’ subsequent
productions of additional information as an effort to balance their disclosure obligations under
the FOIA, by disclosing as much information as possible, with the risks identified in their
declarations. For these reasons, the Court, in its discretion, denies the plaintiff’s request for an in
camera review of the records or information withheld by the defendants.
CONCLUSION
For the foregoing reasons, the Court concludes that the defendants submitted sufficient
factual detail to establish that they properly withheld information under FOIA Exemption 7(E)
and released all reasonably segregable information not otherwise exempt from disclosure.
Accordingly, the Court must grant the defendants’ motion for summary judgment. 2
SO ORDERED this 25th day of February, 2016.
REGGIE B. WALTON
United States District Judge
2
The Court will contemporaneously issue an Order consistent with this Memorandum Opinion.
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