United for FBI Integrity v. U.S. Dep't of Justice

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UNITED FOR FBI INTEGRITY, Plaintiff, v. U.S. DEPARTMENT OF JUSTICE, Defendant.

Civil Action No. 22-2885 (RC)

United States District Court, District of Columbia

March 6, 2024

RE DOCUMENT NO.: 13, 15

MEMORANDUM OPINION

RUDOLPH CONTRERAS UNITED STATES DISTRICT JUDGE

GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

Plaintiff United for FBI Integrity brings this action under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, against Defendant U.S. Department of Justice (“DOJ”). Plaintiff seeks documents from the Federal Bureau of Investigation (“FBI”) and the DOJ's Office of the Inspector General (“OIG”) pertaining to former FBI Associate Deputy Director Jeffrey S. Sallet's retirement and any possible allegations of misconduct against Mr. Sallet. Defendant responded primarily by issuing Glomar responses that refuse to confirm or deny the existence of the records sought, citing FOIA Exemptions 6 and (7)(C).^[1] For the reasons set forth below, the Court finds that Defendant's Glomar responses are justified for some but not all of the requested records. The Court therefore grants in part and denies in part Defendant's motion for summary judgment and grants in part and denies in part Plaintiff's cross-motion for summary judgment.

II. FACTUAL BACKGROUND

A. Michael Zummer and Jeffrey Sallet

To make sense of this FOIA request, it is helpful to introduce two central figures. Michael S. Zummer serves as counsel for Plaintiff, United for FBI Integrity, a non-profit organization that seeks reform of the FBI. Zummer Decl. ¶ 6, ECF No. 15-3; see generally Complaint (“Compl.”) ECF No. 1. Mr. Zummer was previously in-house counsel for Plaintiff from August 2020 until January 2022, and Mr. Zummer is currently president of “Accountability FBI, Inc.” which is a distinct organization from Plaintiff. Zummer Decl. ¶ 6. Mr. Zummer worked for the FBI from 1999 to 2003, and then again from 2008 through 2016, when he was served as a special agent in New Orleans, LA. Id. ¶ 2.

In 2016, Mr. Zummer sent a letter to Judge Kurt D. Engelhardt of the U.S. District Court for the Eastern District of Louisiana, describing what he believed were ethical violations by the U.S. Attorney's Office for the Eastern District of Louisiana in the case. Id. ¶ 64. Mr. Zummer sought but did not receive permission from the DOJ to send the letter. Id. ¶ 76. After Mr. Zummer sent the letter, the FBI suspended, and later revoked, his security clearance. Id. ¶¶ 79, 83. The loss of Mr. Zummer's security clearance ended his employment with the FBI. Id. ¶ 83.

Jeffrey S. Sallet served as Associate Deputy Director of the FBI, the third-highest position with the FBI, for approximately nine months between February 2021 and November 2021. Id. ¶¶ 7-8. Mr. Sallet worked for the FBI for more than 25 years, id. ¶ 56, and served as Special Agent in Charge of the FBI's New Orleans office at the time that Mr. Zummer sent his letter in 2016, id. ¶¶ 12, 64. Mr. Zummer believes that Mr. Sallet was the “primary decisionmaker” in having his security clearance suspended, and while it is unclear from the record if this characterization is correct, Mr. Sallet did play some role in the process. Id. ¶ 79.

Mr. Zummer reported the revocation of his security clearance to the OIG, claiming it was retaliatory action for his protected First Amendment speech to Judge Engelhardt. Id. The OIG, which examines misconduct within the DOJ and FBI, conducted an investigation and found that Mr. Zummer's disclosure to a federal judge was not protected by the FBI's whistleblower regulations. See Zummer Decl., Ex. E at 41, ECF No. 15-4. But the OIG did find “troubling errors and omissions” related to the suspension of Mr. Zummer's security clearance and recommended these be considered in further proceedings about his clearance. Id. In this report, OIG also investigated Mr. Zummer's claims that he experienced an earlier episode of retaliation from the FBI based on his 2013 disclosure to the OIG of what he believed to be a conflict of interest within the USAO. Id. The OIG found “insufficient evidence” to support this retaliation claim. Id.

In addition to his complaint to the OIG, Mr. Zummer filed a federal lawsuit to challenge an alleged violation of his First Amendment rights. The district court dismissed his claim relating to the revocation of his security clearance as falling outside the court's subject-matter jurisdiction. Zummer v. Sallet, No. 17-cv-7563, 2019 WL 4213512, at *8 (E.D. La. Sept. 5, 2019), order amended on denial of reconsideration, No. 17-cv-7563, 2019 WL 5294944, at *3 (E.D. La. Oct. 18, 2019). The Fifth Circuit affirmed. Zummer v. Sallet, 37 F.4th 996, 1013 (5th Cir. 2022). The district court did not dismiss Mr. Zummer's claim seeking to have an unredacted version of his letter to Judge Engelhardt released to the public. In 2021, Mr. Zummer and the FBI settled that claim, and an unredacted version was released. See Settlement Agreement and Release at 1, Zummer v. Sallet, No. 17-cv-7563, ECF No. 127.

Lastly, through Mr. Zummer, Plaintiff alleges that Mr. Sallet's retirement after nine months as Associate Deputy Director was “sudden” and surprising to “[v]arious FBI employees” because it was not announced beforehand. Zummer Decl. ¶ 13. Mr. Zummer further claims that he “heard from various current and former FBI employees that allegations of sexual impropriety against Sallet had caused him to retire,” id. ¶ 14, including that Mr. Sallet made sexual advances or conducted sexual relations with other FBI employees, and made inappropriate comments in the workplace, id. Mr. Zummer does not provide names or any identifying information about the FBI employees he purportedly spoke to. Id. Beyond Mr. Zummer's word about what he has heard from others, Plaintiff presents no other evidence for these contentions about Mr. Sallet's retirement and conduct.

B. FOIA Requests

On November 9, 2021, Plaintiff submitted a FOIA request to the FBI, seeking three related categories of records relating to Mr. Sallet, his retirement, and any possible allegations of misconduct or wrongdoing against him.^[2] Compl. ¶ 12. More specifically, Plaintiff requested:

a. [R]ecords documenting any and all communications by or with FBI Director Christopher Wray, FBI Deputy Director Paul Abbate, or any of their staffs, regarding allegations of misconduct, wrongdoing, malfeasance and/or the retirement of Jeffrey Stephen Sallet, aka Jeff Sallet, Associate Deputy Director of the FBI, between April 1, 2021 and November 5, 2021. Records include, but are not limited to, e-mails, memoranda, notes, and text messages.

b. [R]ecords held by the FBI Inspection Division regarding any allegations of misconduct against, or investigations of, Jeffrey Stephen Sallet, aka Jeff Sallet, formerly [Special Agent in Charge “SAC”] New Orleans, SAC Chicago, Associate [Executive Assistant Director “EAD”] Facilities and Finance Division, EAD Human Resources Branch, and Associate Deputy Director of the FBI, between September 30, 2016 and November 5[,] 2021. Records include, but are not limited to, complaints, allegations, investigative files, and dispositions of any allegations or investigations.

c. [R]ecords held by the FBI Office of Professional Responsibility (OPR) regarding any allegations of misconduct against, investigations of, or adjudication of charges against, Jeffrey Stephen Sallet, aka Jeff Sallet, formerly SAC New Orleans, SAC Chicago, Associate EAD Facilities and Finance Division, EAD Human Resources Branch, and Associate Deputy Director of the FBI, between September 30, 2016 and November 5[,] 2021. Records include, but are not limited to, complaints, allegations, investigative files, and dispositions of any allegations, investigations, or disciplinary charges.

Id.

On November 18, 2021, the FBI denied Plaintiff's requests, invoking FOIA Exemption 6 and 7(C) as part of a Glomar response:

You have requested records on one or more third party individuals. Please be advised the FBI will neither confirm nor deny the existence of such records pursuant to FOIA exemptions (b)(6) and (b)(7)(C), 5 U.S.C. §§ 552(b)(6) and (b)(7)(C). The mere acknowledgement of the existence of FBI records on third party individuals could reasonably be expected to constitute an unwarranted invasion of personal privacy. This is our standard response to such requests and should not be taken to mean that records do, or do not, exist.

Id. ¶ 13. On January 25, 2022, Plaintiff appealed the FBI's decision, and the DOJ affirmed on May 19, 2022. Id. ¶¶ 14-15.

On the same day that Plaintiff made its FOIA request to the FBI, November 9, 2021, Plaintiff submitted a similar request to the OIG seeking:

[R]ecords regarding any allegations of misconduct against, or investigations of, Jeffrey Stephen Sallet, aka Jeff Sallet, formerly of the FBI, formerly SAC New Orleans, SAC Chicago, Associate EAD Facilities and Finance Division, EAD Human Resources Branch, and Associate Deputy Director of the FBI, between September 30, 2016 and November 5[,] 2021. Records include, but are not limited to, complaints, allegations, investigative files, and dispositions of any allegations or investigations.

Id. ¶ 16. On November 23, 2021, the OIG answered with a Glomar response citing Exemption 7(C):

[Y]ou seek records relating to Jeffrey Stephen Sallet. Because your request seeks investigatory records, we will neither confirm nor deny the existence of any such records. Without the consent of the individuals you mention, an official acknowledgement of an investigation involving them, or an overriding public interest, acknowledging the existence of such records

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