Horvath v. U.S. Secret Serv.

419 F.Supp.3d 40

Michael J. HORVATH, Plaintiff,

v.UNITED STATES SECRET SERVICE, Defendant.

Civil Action No. 18-2172 (JDB)

United States District Court, District of Columbia.

Signed October 31, 2019

Jane C. Luxton, Lewis Brisbois Bisgaard & Smith LLP, Washington, DC, Nicholas M. Wieczorek, Clark Hill PLLC, Las Vegas, NV, for Plaintiff.

Derek S. Hammond, Benton Gregory Peterson, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendant.

MEMORANDUM OPINION

JOHN D. BATES, United States District Judge

Plaintiff Michael Horvath, a special agent employed by the United States Secret Service, brings this action under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, seeking records related to the Secret Service's internal investigation into his complaint that he was subjected to workplace retaliation for filing a class action lawsuit against his employer. After Horvath filed this FOIA action, the Secret Service released the relevant investigation case file to him but withheld certain information under FOIA Exemptions 6 and 7(C), which protect against invasions of personal privacy, as well as under FOIA Exemption 5's deliberative process privilege. The Secret Service now moves for summary judgment, claiming it has released all non-exempt material and fully satisfied its FOIA obligations. Def.'s Mot. for Summ. J. [ECF No. 17] ("Def.'s Mot."). Horvath opposes the motion. Opp'n to Def.'s Mot. for Summ. J. ("Pl.'s Opp'n") [ECF No. 18]. For the reasons explained below, the Secret Service's motion for summary judgment will be granted.

BACKGROUND

Horvath is a special agent with the United States Secret Service. Compl. [ECF No. 1] ¶ 3. On June 10, 2016, he filed a class action lawsuit seeking overtime and related compensation on behalf of himself and other similarly situated special agents of the Secret Service. Id. ¶ 5. Horvath claims that, shortly thereafter, while on assignment at the Los Angeles Field Office, his supervisor retaliated against him for filing the class action lawsuit. Id. ¶ 6; Def.'s Statement of Facts ("Def.'s Facts") [ECF No. 17-2] ¶ 2; Ex. 1 to Pl.'s Opp'n [ECF No. 19-1] at 28–30.

In September 2016, Horvath filed his allegation of retaliation with the Secret Service's Office of Integrity. See Compl. ¶ 7; Def.'s Facts ¶ 2. He later learned that the Secret Service had conducted a fact-finding investigation into his allegation and deemed the matter closed. Compl. ¶ 10. But by April 2017, Horvath had not heard anything regarding the findings of the investigation, so he requested all records associated with it. Id. ¶¶ 10–11. His request was forwarded to the Secret Service's FOIA Office, yet over a year later—in September 2018—Horvath still had not received any documents, despite repeatedly requesting updates and asking for an estimated date of completion for his FOIA request. See id. ¶¶ 12–24. As a result, Horvath brought this action, alleging that the Secret Service's failure to respond to his records request violated FOIA. See id. ¶¶ 26–31.

A little over a month after Horvath filed suit, the Secret Service produced the only set of records responsive to Horvath's request: a sixty-five-page case file concerning the Secret Service Inspection Division's investigation of a third-party employee based on Horvath's allegation that the employee had subjected Horvath to workplace harassment and retaliation. See Campbell Decl. [ECF No. 17-3] ¶ 11. Pursuant to FOIA Exemptions 5, 6, and 7(C), certain information was redacted throughout the sixty-five pages, and seventeen of the sixty-five pages were withheld in their entirety. Id. ¶¶ 13–14. In particular, the Secret Service fully withheld the substance of five sworn statements by Secret Service agents and two memoranda of interviews with Secret Service agents prepared as part of the investigation. Campbell Decl., Ex. 4 at 1–7.

The Secret Service claims it has released all responsive, nonexempt information and now moves for summary judgment. See Mem. of P.&A. in Supp. of Def.'s Mot. for Summ. J. ("Def.'s Mem.") [ECF No. 17-1] at 3–9. Horvath opposes the motion, alleging that the Secret Service improperly applied the FOIA exemptions and that the Vaughn Index and FOIA Officer's Declaration are insufficient to support the exemptions or to justify why all segregable information has been disclosed. See Pl.'s Opp'n at 7–14. Specifically, Horvath challenges the Secret Service's withholding of "factual information uncovered by the fact-finding investigation" under Exemptions 6 and 7(C) and the withholding of "factual information acquired through the fact-finding inquiry and provided by witnesses" under Exemption 5. Id. 8, 10. The Court understands this factual information to be the "substance of any statements provided to investigators," which the Secret Service withheld entirely under Exemptions 6 and 7(C) from documents 1, 6–11, and 13 (USSS 1–22, 38–72, 76–82). The Secret Service also withheld information in those same documents under Exemption 5's deliberative process privilege.¹

LEGAL STANDARD

"FOIA cases typically and appropriately are decided on motions for summary judgment." Georgacarakos v. FBI, 908 F. Supp. 2d 176, 180 (D.D.C. 2012) (internal quotation marks omitted); see also Brayton v. Office of the U.S. Trade Representative, 641 F.3d 521, 527 (D.C. Cir. 2011). Summary judgment is appropriate where "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). The court may grant summary judgment in favor of the agency only after the agency has established "that it has fully discharged its disclosure obligations under FOIA." Weisberg v. U.S. Dep't of Justice, 705 F.2d 1344, 1350 (D.C. Cir. 1983).

District courts determine de novo whether an agency properly withheld requested documents under a statutory exemption to FOIA, and the agency "bears the burden of proving the applicability of claimed exemptions." Am. Civ. Liberties Union (ACLU) v. U.S. Dep't of Defense, 628 F.3d 612, 619 (D.C. Cir. 2011) ; see also 5 U.S.C. § 552(a)(4)(B). "If an agency's affidavit describes the justifications for withholding the information with specific detail, demonstrates that the information withheld logically falls within the claimed exemption, and is not contradicted by contrary evidence in the record or by evidence of the agency's bad faith, then summary judgment is warranted on the basis of the affidavit alone." ACLU, 628 F.3d at 619. "Ultimately, an agency's justification for invoking a FOIA exemption is sufficient if it appears ‘logical’ or ‘plausible.’ " Id. (quoting Larson v. Dep't of State, 565 F.3d 857, 862 (D.C. Cir. 2009) ).

ANALYSIS

Horvath challenges the Secret Service's withholding determinations under Exemptions 6 and 7(C) and Exemption 5's deliberative process privilege. He also argues that the Secret Service's analysis on segregability is insufficient. However, as explained below, the Court finds that the Secret Service properly withheld information that would disclose "who said what" to the investigators under Exemption 6, properly withheld Secret Service employees' opinions under Exemption 5's deliberative process privilege, and released all segregable, non-exempt information.

1. Exemptions 6 & 7(C)

Horvath challenges the Secret Service's claim that certain factual information uncovered by the investigation is exempt under both (or either) Exemptions 6 and 7(C) because disclosure of the information threatens the privacy interests of third-party Secret Service employees, including witnesses and those subject to investigation. See Pl.'s Opp'n at 10–12; Campbell Decl. ¶ 25.

Exemption 6 protects "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(6). Exemption 7(C) protects "records or information compiled for law enforcement purposes ... to the extent that production of such law enforcement records or information ... could reasonably be expected to constitute an unwarranted invasion of personal privacy." Id. § 552(b)(7)(C). Both provisions require agencies and reviewing courts to "balance the privacy interests that would be compromised by disclosure against the public interest in release of the requested information." Beck v. U.S. Dep't of Justice, 997 F.2d 1489, 1491 (D.C. Cir. 1993). "[T]he privacy inquiry of Exemptions 6 and 7(C) [is] essentially the same," Judicial Watch, Inc. v. Dep't of Justice, 365 F.3d 1108, 1125 (D.C. Cir. 2004), although Exemption 7(C) "establishes a lower bar for withholding material," ACLU v. U.S. Dep't of Justice, 655 F.3d 1, 6 (D.C. Cir. 2011).

The Court first considers whether the Secret Service properly withheld information under Exemption 6. The Secret Service claims that the investigative file at issue is a "personnel file" or "similar file" under Exemption 6 because it concerns an investigation of a specific Secret Service employee based on an allegation of possible misconduct. Campbell Decl. ¶ 22. Horvath does not dispute this claim. See Pl.'s Opp'n at 7–12. Indeed, "the phrase ‘similar files’ was to have a broad, rather than a narrow, meaning," U. S. Dep't of State v. Washington Post Co., 456 U.S. 595, 600, 102 S.Ct. 1957, 72 L.Ed.2d 358 (1982), and courts have applied Exemption 6 to administrative investigative files in the past, see Wood v. F.B.I., 432 F.3d 78, 86–87 (2d Cir. 2005).

Instead, Horvath argues that Exemption 6 does not apply because there is no substantial privacy interest at stake. See Pl.'s Opp'n at 10. He claims that he seeks the factual information uncovered by the fact-finding investigation related to his allegation of workplace harassment, not any personally identifying information, and thus disclosure does not implicate substantial privacy interests. Id. Specifically, Horvath takes issue with the Secret Service withholding, in their entirety, "witness statement summaries" and "sworn...