Schneider v. U.S. Dep't of Justice

BRANDON C. SCHNEIDER, Plaintiff, v. U.S. DEPARTMENT OF JUSTICE, et al., Defendants.

No. 18-cv-0474 (DLF)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

September 28, 2019

MEMORANDUM OPINION

Brandon Schneider brings this suit alleging that the Department of Justice's Federal Bureau of Investigation (FBI) and the Office of Personnel Management (OPM) unlawfully withheld records in violation of the Privacy Act of 1974, 5 U.S.C. § 552a, and the Freedom of Information Act (FOIA), 5 U.S.C. § 552. Before the Court is the government's Motion for Summary Judgment, Dkt. 7, and Schneider's Cross Motion for Summary Judgment, Dkt. 12. For the reasons that follow, the Court will grant the government's motion and deny Schneider's cross motion.

I. BACKGROUND

In February 2016, OPM initiated a background check on Schneider for a Summer Chaplain Internship at Fort Belvoir Community Hospital. See Compl. ¶ 13, Dkt. 1. The background check process revealed that, in 2005, an individual whom OPM believed to be Schneider admitted to certain actions during a law enforcement interview. See Brewer Decl. Ex. D, Dkt. 7-4. Although Schneider denies these allegations, he was removed from parish ministry and is unable to return. See id.

In October 2017, Schneider submitted a request under FOIA and the Privacy Act to OPM's National Background Investigation Bureau, the department that oversees background investigations, for a copy of all material related to the alleged incident. Brewer Decl. ¶¶ 3-4, Dkt. 7-2; see also id. Ex. A, Dkt. 7-4. OPM provided him with a redacted copy of his file and referred several records to the FBI. Id. ¶¶ 5, 7-9, 11. Schneider then appealed, requesting specific information about the 2005 interview, including the date and location of the interview, how the interviewee was identified, the name of the agent who conducted the interview, and the interviewee's address and contact information, signature, and statement of admission, id. Ex. D, but his appeal was denied, id. ¶ 18. In December 2017, Schneider also contacted the FBI directly and submitted a request under FOIA and the Privacy Act asking for information regarding the 2005 incident. See First Hardy Decl, Ex. G & H, Dkt. 7-5.

In response to these requests, the FBI searched the Central Records System, the principal database in which the FBI indexes information about subjects of investigative interest. First Hardy Decl. ¶¶ 19, 27-28, Dkt. 7-3; see also Third Hardy Decl. ¶ 18, Dkt. 21. In total, the FBI reviewed 24 pages of responsive records and released 10 pages in full or in part to Schneider. First Hardy Decl. ¶ 4. The FBI invoked FOIA Exemptions 6, 7(C), and 7(E) and Privacy Act Exemption (j)(2) to justify its withholdings and redactions. See id. ¶¶ 30-32.

On February 28, 2018, Schneider filed the instant action. See Compl. He does not challenge OPM's search or the FBI's use of FOIA Exemptions 6 or 7(C) to justify redacting and withholding documents, see Pl.'s Br. at 3, n.1, Dkt. 12; nor does he appear to contest the FBI's use of Privacy Act Exemption (j)(2), see id. at 3-7. Schneider only challenges the adequacy of the FBI's search and its use of FOIA Exemption 7(E) to justify redacting and withholding documents. See id.

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). A "material" fact is one with the potential to change the substantive outcome of the litigation. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is "genuine" if a reasonable jury could determine that the evidence warrants a verdict for the nonmoving party. See id. All facts and inferences must be viewed in the light most favorable to the requester, and the agency bears the burden of showing that it complied with the applicable legal standard. See Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 150 (2000); Chambers v. U.S. Dep't of Interior, 568 F.3d 998, 1003 (D.C. Cir. 2009). If "material facts are genuinely in issue or, though undisputed, are susceptible to divergent inferences bearing upon an issue critical to disposition of the case, summary judgment is not available" to the agency. Alyeska Pipeline Serv. Co. v. EPA, 856 F.2d 309, 314 (D.C. Cir. 1988). That said, courts in this jurisdiction recognize that "the vast majority of FOIA cases can be resolved on summary judgment." Brayton v. Office of the U.S. Trade Representative, 641 F.3d 521, 527 (D.C. Cir. 2011).

The Privacy Act and FOIA are structurally similar. Londrigan v. FBI, 670 F.2d 1164, 1169 (D.C. Cir. 1981). Both provide a requester with access to federal agency records about the requester and create a private cause of action when an agency fails to comply with a valid request. See 5 U.S.C. §§ 552a(d)(1), (g)(1) (Privacy Act); 5 U.S.C. §§ 552(a)(3)(A), (a)(4)(B) (FOIA). If agency searches reveal records responsive to a Privacy Act or FOIA request, an agency may withhold access to the records if the statutes exempt them from disclosure. See 5 U.S.C. §§ 552a(j)(2), (k)(2); 5 U.S.C. § 552(b).

Although the Privacy Act and FOIA "substantially overlap," the statutes "are not completely coextensive; each provides or limits access to material not opened or closed by the other." Greentree v. U.S. Customs Serv., 674 F.2d 74, 78 (D.C. Cir. 1982). Accordingly, "[t]he two acts explicitly state that access to records under each is available without regard to exemptions under the other." Martin v. Office of Special Counsel, Merit Sys. Prot. Bd., 819 F.2d 1181, 1184 (D.C. Cir. 1987). This means that, when both statutes are at play, an agency seeking to withhold records must "demonstrate that the documents fall within some exemption under each Act." Id. (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." Id.

"[F]ederal courts . . . rely on government affidavits to determine whether the statutory obligations" have been met. Perry v. Block, 684 F.2d 121, 126 (D.C. Cir. 1982) (per curiam). The agency's affidavits are accorded a presumption of good faith, Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981), and "[s]ummary judgment may be granted on the basis of agency affidavits if they contain reasonable specificity of detail rather than merely conclusory statements, and if they are not called into question by contradictory evidence in the record or by evidence of agency bad faith," Judicial Watch, Inc. v. U.S. Secret Serv., 726 F.3d 208, 215 (D.C. Cir. 2013) (internal quotation marks omitted).

III. ANALYSIS

The parties dispute two issues: whether the FBI adequately searched its records under FOIA and the Privacy Act, and whether the FBI properly withheld and redacted records pursuant to FOIA Exemption 7(E). As explained below, the Court concludes that the FBI conducted anadequate search and that the FBI properly invoked Exemption 7(E) to prevent the disclosure of law enforcement techniques that would reasonably risk circumvention of the law.

A. Adequacy of the Search

To prevail on a motion for summary judgment in a FOIA case, an agency must demonstrate that it "made a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested." Oglesby v. U.S. Dep't of Army, 920 F.2d 57, 68 (D.C. Cir. 1990). The analysis centers on whether the search was "reasonably calculated to discover the requested documents, not whether it actually uncovered every document extant." SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1201 (D.C. Cir. 1991). This standard applies to requests under both FOIA and the Privacy Act. See Chambers, 568 F.3d at 1005 (stating that "the Privacy Act, like FOIA, requires" that a search be "reasonably calculated to uncover all relevant documents" (internal quotation marks omitted)). "The issue is not whether any further documents might conceivably exist but rather whether the government's search for responsive documents was adequate." Perry, 684 F.2d at 128.

To demonstrate the adequacy of a search, an agency may rely upon detailed, non-conclusory affidavits submitted in good faith. Weisberg v. U.S. Dep't of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983). The government submitted four declarations in the present case: one from Katherine Brewer, OPM's Senior Counsel in its Office of the General Counsel, and three from David M. Hardy, the chief of the FBI's Record/Information Dissemination Section, Information Management Division.

The three Hardy declarations establish that the FBI conducted reasonable searches that employed methods likely to produce records responsive to Schneider's requests. The FBI ran multiple searches of its primary records system—the Central Records System—including forcross-reference records, which are excerpts of other main investigative files that mention a subject who is not the primary individual under investigation. See First Hardy Decl. ¶ 27-28; Second Hardy Decl. 4-5, Dkt. 16-1. The FBI used a three-way phonetic breakdown of Schneider's name,¹ date of birth, place of birth, and social security number. First Hardy Decl. ¶¶ 27.

The FBI "reasonably expected" that the Central Records System, the FBI's central database, was the system most likely to contain records responsive to Schneider's request for investigative information about himself. See id. ¶ 29; Second Hardy Decl. ¶ 4. The FBI's additional searches for cross-references further demonstrates the FBI's good faith attempts to uncover "all relevant documents." See Weisberg, 705 F.2d at 1351. And the FBI's use of search criteria that included Schneider's personal identification information and...