Sheridan v. U.S. Office of Pers. Mgmt.

278 F.Supp.3d 11

Ronald L. SHERIDAN, Jr., Plaintiff,

v.U.S. OFFICE OF PERSONNEL MANAGEMENT, Defendant.

Case No. 16–cv–805 (KBJ)

United States District Court, District of Columbia.

Signed September 29, 2017

Ronald L. Sheridan, Jr., Westminister, MD, pro se.

Jeremy S. Simon, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendant.

MEMORANDUM OPINION

KETANJI BROWN JACKSON, United States District Judge

Pro se plaintiff Ronald L. Sheridan seeks access to the computer software that the Office of Personnel Management ("OPM") uses to administer background investigations to applicants for federal government jobs. (See Compl., ECF No. 1, ¶ 8.) Sheridan submitted a records request to OPM in April of 2015, asking for "[c]omputer files containing the source code" for the agency's Electronic Questionnaires for Investigations Processing ("e–QIP") system, as well as related "design and operations documentation for e–QIP." (Id. ¶ 9.)

Sheridan filed the instant lawsuit after OPM failed to respond to his request; he invokes the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, and asks this Court to declare OPM's withholding "unlawful" and to order OPM to produce the requested records "without further delay." (Id. , Prayer for Relief, ¶¶ C–D.)

Before this Court at present are the parties' cross-motions for summary judgment. (See Mem. in Supp. of Def.'s Mot. for Summ. J. ("Def.'s Mem."), ECF No. 8; Pl.'s Mem. in Opp'n to Def.'s Mot. for Summ. J. & in Supp. of Pl.'s Cross–Mot. for Summ. J. ("Pl.'s Mem."), ECF No. 11.) In its motion, OPM argues that the e–QIP source code and related documentation are exempt from disclosure under the FOIA pursuant to Exemption 7(E), 5 U.S.C. § 552(b)(7)(E), because the e–QIP source code and related documentation were compiled for a "law enforcement purpose" (see Def.'s Mem. at 11–12), and producing those records could reasonably be expected to increase the risk that undeserving individuals might successfully navigate the background investigation process, and also the risk that the e–QIP system will be the target of cyber-intrusion (see id. at 12–13).¹ OPM further argues that because Exemption 7(E) applies to the requested records in their entirety, no reasonably segregable, non-exempt portions of those records can be produced to Sheridan (see id. at 15–16), and that even if some portions of the requested records are segregable, they would nevertheless be exempt from disclosure pursuant to FOIA Exemption 2, which encompasses "matters that are ... related solely to the internal personnel rules and practices of an agency[,]" 5 U.S.C. § 552(b)(2). (See Def.'s Mem. at 13–15.) For his part, Sheridan maintains that neither Exemption 7(E) nor Exemption 2 applies (see Pl.'s Mem. at 10–15), and that even if they do, OPM has not adequately complied with the FOIA's segregability requirement (see id. at 15).

Although Sheridan's written and oral presentation in regard to this matter was exceptional for a non-lawyer advocate, for the reasons explained below, this Court agrees with OPM that the requested records are exempt from disclosure pursuant to Exemption 7(E), and that OPM has adequately complied with its obligation to identify and produce any reasonably segregable, non-exempt portions of the requested records. Accordingly, OPM's motion for summary judgment will be GRANTED and Sheridan's cross-motion for summary judgment will be DENIED . A separate Order consistent with this Memorandum Opinion will follow.

I. BACKGROUND²

"OPM functions as the human resources service provider for Federal agencies in the executive branch and, as part of that function, provides over 90% of the Government's background investigations, conducting over two million investigations a year." (Def.'s Statement of Material Facts Not in Genuine Dispute ("Def.'s SOMF"), ECF No. 8, ¶ 2; see also Decl. of Lawrence W. Anderson ("Anderson Decl."), ECF No. 8–2, ¶ 21.) OPM's authority to conduct background investigations derives from multiple statutes, see, e.g. , 5 U.S.C. § 1304(a) ; 22 U.S.C. § 272b, as well as from an Executive Order that requires background investigations in order to ensure that all federal government employees are "reliable, trustworthy, of good conduct and character, and of complete and unswerving loyalty to the United States[.]" Exec. Order No. 10,450, 3 C.F.R. 936 (1949–1953 Comp.). "The principal purpose of a background investigation is to ensure that a prospective employee has not broken the law or engaged in other conduct making her ineligible for the position." Mittleman v. OPM , 76 F.3d 1240, 1243 (D.C. Cir. 1996).

To conduct its work, OPM uses the e–QIP system, "which provides secure, web-based access for applicants to enter, update, and transmit" various background investigation forms. (Def.'s SOMF ¶ 3; see also Anderson Decl. ¶ 14.) Individuals use these forms to provide information regarding matters such as foreign contacts and financial and criminal histories. (See Def.'s SOMF ¶ 4; Anderson Decl. ¶ 15.) Blank versions of background investigation forms are publicly available³ ; however, applicants can only complete and submit these forms through e–QIP at the invitation of a sponsoring agency. (See Def.'s SOMF ¶ 5; Anderson Decl. ¶ 15.) The e–QIP system "allow[s] individuals to complete the appropriate investigative form and transmit the data through the requesting Government agency to OPM's central computer system." (Anderson Decl. ¶ 16.) Thus, the system is also "designed to house the completed personnel security investigative forms." (Def.'s SOMF ¶ 5.)

On April 15, 2015, Sheridan submitted a FOIA request to OPM, requesting "[c]omputer files containing the source code to the Office of Personnel Management's ‘Electronic Questionnaires for the Investigations Processing (e–QIP)’ application and computer files or hardcopy records containing design and operations documents for e–QIP." (Def.'s SOMF ¶ 1.) After emailing twice for a status update to no avail (see Compl. ¶¶ 14–15; Exs. 3–4 to Anderson Decl.), Sheridan treated the agency's lack of responsiveness as a "constructive denial" and filed an administrative appeal on February 1, 2016. (Compl.¶ 23; see also Ex. 7 to Anderson Decl.) To date, OPM has not issued any formal response to Sheridan's appeal. (See Compl. ¶ 26; Def.'s Answer to Pl.'s Compl. ("Answer"), ECF No. 5, ¶ 26.) See also 5 U.S.C. § 552(a)(6)(C)(i) (providing for constructive exhaustion of administrative remedies).

On April 29, 2016, Sheridan filed the present lawsuit, alleging that OPM violated the FOIA by failing to respond to his document request and by failing to produce the requested documents. (See Compl. ¶¶ 27, 29.) Asserting claims under the FOIA, Sheridan seeks a declaration that OPM's failure to make a determination on whether or not to comply with his FOIA request within twenty working days, failure to respond to his administrative appeal within twenty working days, and failure to provide the requested records are unlawful. (See id. , Prayer for Relief, ¶¶ A–C.) Sheridan also asks the Court to order OPM to produce the requested records and award him litigation costs. (See id. , Prayer for Relief, ¶¶ D–E.)

The parties have filed cross-motions for summary judgment under Federal Rule of Civil Procedure 56 that are now ripe for this Court's review.⁴ OPM's motion reports that the agency has searched for the records that Sheridan requested and has located several responsive items: specifically, the e–QIP source code (which is purportedly stored across 3,241 different electronic files), and also a 79–page design manual and a 109–page operations manual. (See Def.'s Mem. at 9; Anderson Decl. ¶¶ 18–19.)⁵ However, OPM has declined to produce these records to Sheridan, and it argues that its withholding is justified because the records are exempt from the FOIA under Exemption 7(E), which protects from disclosure certain " ‘records or information compiled for law enforcement purposes’ " if such disclosure might risk compromising an agency's law enforcement function. (Def.'s Mem. at 12 (quoting 5 U.S.C. § 552(b)(7)(E) ).) OPM argues that, because the agency uses e–QIP to process background-investigation information, the agency's disclosure of the system's source code, structure, and operation would render e–QIP vulnerable to hacking and phishing, and would also enable undeserving individuals to pass the background-check process successfully. (See Def.'s Mem at 11–13.) In making this argument, OPM further contends that "Exemption 7(E) applies to all of the requested information and that non-exempt material could not be segregated in a manner that would provide meaningful information." (Id. at 16 (emphasis added).) In the alternative, OPM argues that even assuming that some of the requested information "is not subject to Exemption 7(E), and that any such information could be segregated in a meaningful manner from the rest of the requested information, that same information [would be] subject to Exemption 2" (id. ), which protects from disclosure matters that are "related solely to the internal personnel rules and practices of an agency[.]" 5 U.S.C. § 552(b)(2). In OPM's view, Exemption 2 encompasses any segregable information in the requested records, because the records relate to hiring practices and because there is no legitimate public interest in the e–QIP source code. (See Def.'s Mem. at 13–15.)

In his cross-motion, Sheridan responds to each of OPM's arguments in turn. With respect to Exemption 7(E), Sheridan argues that the requested records are not exempt because there "would be no harm in their disclosure[,]" in light of the fact that "[u]nderstanding the information collected by e–QIP does not provide an applicant with any more information about the investigation adjudication process than simply reading the paper forms" that are already publicly available. (Pl.'s Mem. at 12.) During the Court's motion hearing, Sheridan added that even if certain portions of the e–QIP source...