Stein v. Cent. Intelligence Agency

454 F.Supp.3d 1

Jeffrey STEIN, Plaintiff,

v.CENTRAL INTELLIGENCE AGENCY, et al., Defendant.

Civil Action No. 17-cv-0189 (TSC)

United States District Court, District of Columbia.

Signed April 14, 2020

Kelly Brian McClanahan, National Security Counselors, Rockville, MD, for Plaintiff.

Michael Hendry Baer, U.S. Department of Justice, Washington, DC, for Defendant.

MEMORANDUM OPINION

TANYA S. CHUTKAN, United States District Judge Plaintiff Jeffrey Stein brought this action under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, et seq. , challenging certain responses to a series of FOIA requests he submitted to nine federal agencies (collectively, "Defendants"): Central Intelligence Agency ("CIA"), Department of Justice ("DOJ"), Department of Defense ("DOD"), Office of Personnel Management ("OPM"), Office of the Director of National Intelligence ("ODNI"), Department of Education ("Education"), Department of State ("State"), and Department of Commerce ("Commerce").

Before the court are Defendants’ Motion for Summary Judgment (ECF No. 22) and Stein's Cross-Motion for Partial Summary Judgment (ECF No. 29). Upon consideration of the motions, the responses and replies thereto, and for the following reasons, the court will GRANT and DENY Defendants’ motion in part, and GRANT and DENY Stein's motion in part.

I. BACKGROUND

A. Stein's FOIA Requests

Stein's FOIA requests broadly fall into two categories, each involving alleged security concerns related to Donald Trump's presidential campaign and presidential transition. First, Stein's "briefing requests" sought "copies of all records, including e-mails and other forms of electronic communications, about national security briefings given or to be given to Donald Trump due to his Presidential candidacy," including any security concerns related to such briefing. (ECF No. 22-13 ("Defs. Stmt. Mat. Facts") ¶ 1.) The request stated that agencies could "exclude the substance of the briefings and focus only on records about logistics, security concerns, and similar issues." (See, e.g. , ECF No. 22-7, Ex. YYY at 1.) It further clarified that "Mr. Stein has no interest in learning what Mr. Trump is briefed about; he is only interested in the process, and he is specifically interested in records discussing any security concerns." (Id. ) Stein sent briefing requests to five agencies: CIA, DOD, DOJ, FBI,¹ and ODNI. (Defs. Stmt. Mat. Facts ¶¶ 3, 22, 31, 42, 51.) Three agencies—CIA, FBI, and ODNI—identified and produced some records in response to the request. (Id. ¶¶ 5, 33, 46.)

The second category of Stein's FOIA requests, the "investigation requests," sought information related to background investigations of fifteen individuals reportedly under consideration for senior positions in the Trump administration. (Id. ¶¶ 1–2.) The requests sought "copies of all records, including emails, about any steps taken to investigate or authorize (or discussions about potentially investigating or authorizing) [the individual in question] for access to classified information." (Id. ) The fifteen individuals are: Stephen Bannon, Pamela Bondi, Betsy DeVos, Carly Fiorina, Gen. Michael Flynn, Michael Flynn, Jr., Rudolph Giuliani, Jared Kushner, James Mattis, Gen. David Petraeus, Wilbur Ross, Jr., Rex Tillerson, Donald Trump, Jr., Eric Trump, and Ivanka Trump. (Id. ¶ 2.) Four agencies—CIA, FBI, ODNI, and OPM—received investigation requests for all fifteen individuals.

(Id. ¶¶ 3, 31, 42, 54.) Commerce, DOD, Education, and State received investigation requests for a subset of between one and thirteen individuals. (Id. ¶¶ 17, 22, 28, 61.) Ultimately, three agencies—CIA, FBI, and ODNI—identified and released some material responsive to Stein's briefing or investigation requests. (Id. ¶¶ 5, 33, 46.)

B. Agency Responses to Stein's FOIA Requests²

1. CIA

CIA received the briefing request from Stein on May 5, 2016, and all fifteen investigation requests between December 5 and December 15, 2016. (ECF No. 22-3, Ex. 1 ("Shiner Decl.") ¶ 7.) After Stein sued on January 31, 2017, CIA searched for responsive materials in accordance with the schedule established by this court, and produced materials to Stein on a rolling basis, releasing its final set of records on March 16, 2018. (Id. ¶ 9.) In all, CIA identified 65 responsive documents, produced 40 documents in whole or in part and withheld 25 in full, invoking Exemptions 1, 3, 5, and 6. (Defs. Stmt. Mat. Facts ¶¶ 5, 7, 9, 11, 14; ECF No. 22-3, Ex. A ("CIA Vaughn Index").) CIA referred additional responsive materials to other agencies and eventually produced eight of the referred documents, which included redactions made by the originating agency. (Shiner Decl. ¶ 9).

2. FBI

FBI processed 352 pages of materials responsive to Stein's requests; it released 100 pages in full, 163 pages with redactions, and withheld 89 pages in their entirety, invoking Exemptions 5, 6, and 7(c). (Defs. Stmt. Mat. Facts ¶¶ 33–36.)

3. DOJ

On July 22, 2016, Stein's counsel sent a copy of the briefing request to DOJ's FOIA/PA Mail Referral Unit ("MRU"), a part of DOJ's Justice Management Division that accepts FOIA requests from requesters who are unsure which DOJ component may possess the records they seek. (ECF No. 22-9, Ex. 7 ("Brinkmann Decl.") ¶¶ 3, 6.) When the MRU receives a request, it decides "which components would be most likely to maintain the records sought." (Id. ¶ 7.) After determining that the DOJ's Office of Information Policy ("OIP") was one of the agency components most likely to have materials responsive to Stein's request, MRU forwarded the request to OIP. (Id. ) On April 17, 2017, OIP notified Stein's counsel that the agency had completed a search and could not locate any responsive records. (Id. ¶ 12.) OIP claims that it searched for responsive materials in all locations reasonably likely to contain them. (Defs. Stmt. Mat. Facts ¶ 52.)

4. DOD

i. Office of the Secretary of Defense and Joint Staff

The FOIA office for the Office of the Secretary of Defense and Joint Staff ("OSD/JS"), a component of DOD, received a copy of Stein's briefing request on May 5, 2016, and in a May 23, 2016 letter to Stein's counsel, issued a "no records" response to the briefing request. (Id. ¶ 23; ECF No. 22-5, Ex. 3 ("Herrington Decl.") ¶ 6.) Stein did not appeal this response. (Defs. Stmt. Mat. Facts ¶ 24). However, on July 22, 2016 he e-mailed the OSD/JS action officer who had sent the May 23 response, stating that his e-mail was "a renewal of the FOIA request submitted on 5 May 2016." (Herrington Decl. ¶ 7). On July 27, 2016, the officer responded that the previous FOIA request was closed and that Stein should file another request online, or by mail or fax to the OSD/JS Requester Service Center ("RSC"). (Id. ) Later that day, Stein's counsel again e-mailed the action officer and asked him to forward the request to OSD/JS's FOIA office. (Id. ) The officer replied on July 28, again instructing Stein's counsel to "[p]lease submit your own FOIA request to the Requester Service Center as stated below." (Id. ¶ 8.) The parties now dispute whether Stein's counsel's e-mails constituted a separate submission of the briefing request. (Defs. Stmt. Mat. Facts ¶ 25; ECF No. 28 ("Pl. Response to Defs. Stmt. Mat. Facts") ¶ 25.)

Stein's counsel also submitted thirteen investigation requests to OSD/JS, which claims that it found no responsive records, despite searching all locations reasonably likely to contain them. (Defs. Stmt. Mat. Facts ¶¶ 26, 27)

ii. Defense Manpower Data Center

Stein's counsel submitted the same thirteen investigation requests sent to OSD/JS to the DOD's Defense Manpower Data Center ("DMDC"), which is responsible for maintaining the Joint Personnel Adjudication System ("JPAS") and other personnel security systems. (Herrington Decl. ¶ 14.) Because DMDC responds to FOIA requests through the OSD/JS FOIA office, these requests were "essentially duplicates" of the ones Stein sent to OSD/JS. (Id. ) Relying on a DMDC official's statement that "the JPAS database does not maintain security investigations of cabinet level personnel, and thus no system of records at DMDC would have responsive material," DMDC concluded that it would not have any JPAS information responsive to Stein's thirteen investigation requests, and communicated a "no records" response to the OSD/JS FOIA office. (Id. )

5. ODNI

ODNI received the briefing request and all fifteen investigation requests from Stein. (Defs. Stmt. Mat. Facts ¶ 42.) With respect to the investigation requests, the agency determined that it "was not required to conduct a search for responsive records" because "ODNI is not involved in the process of actually investigating or authorizing individuals for access to classified national security information." (ECF No. 22-8 ("Gaviria Decl.") ¶ 39.) It also cited Exemption 6 to justify withholding 31 pages of responsive records it received via referral from the CIA, claiming that the records contained no reasonably segregable and non-exempt information. (Id. ¶¶ 48, 50.) The agency concluded that there were no locations likely to contain information responsive to Stein's investigation requests, because ODNI "does not investigate or authorize individuals for access to classified information." (Id. ¶¶ 44–45.)

6. OPM

OPM referred Stein's investigative requests to the National Background Investigations Bureau ("NBIB"), an OPM component that "conducts background investigations for Federal government agencies to use as the basis for suitability and security clearance determinations." (ECF No. 22-10 ("Watters Decl.") ¶¶ 8, 12.) NBIB determined that its Personnel Investigations Processing System, which includes information about individuals subject to background investigations, was the only location likely to contain responsive records. (Id. ¶¶ 8, 12.)

On January 26, 2017, NBIB e-mailed Stein, informing him that it had found no responsive materials for ten of the fifteen investigation requests. (Id. ¶ 15.) NBIB identified no...