Sack v. Central Intelligence Agency

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_______________________________
)
KATELYN SACK, )
)
Plaintiff, )
)
v. ) Civil Action No. 12-244 (EGS)
)
CENTRAL INTELLIGENCE AGENCY, )
et al., )
)
Defendants. )
_______________________________)

MEMORANDUM OPINION

Plaintiff Katelyn Sack requested information from the

defendants, the Central Intelligence Agency (“CIA”), the

Department of Defense (“DOD”), and the Department of Justice

(“DOJ”), and their component agencies under the Freedom of

Information Act (“FOIA”), 5 U.S.C. § 552. Dissatisfied with

their responses, she filed this lawsuit. Pending before the

Court are defendants’ motion for summary judgment and

plaintiff’s motion to reinstate Count Fifteen of her Complaint.

Upon consideration of the motions, the responses and replies

thereto, the applicable law, and the entire record, the Court

GRANTS IN PART AND DENIES IN PART defendants’ motion for summary

judgment and DENIES plaintiff’s motion to reinstate.

I. BACKGROUND

Katelyn Sack, a doctoral student, is writing a dissertation

about polygraph examinations. See Compl. ¶ 4. In 2010 and 2011,
Ms. Sack submitted a number of FOIA requests to the defendants.

Some, but not all, of these requests related to the agencies’

use of polygraphs. Dissatisfied with the agencies’ responses,

Ms. Sack filed suit on February 14, 2012.

On April 25, 2013, the parties entered into a stipulation,

dismissing Counts Two, Six, Eight, Ten, Eleven, Thirteen, and

Fifteen of the Complaint. See Joint Stipulation, ECF No. 13 at

2. They also stipulated to the adequacy of the searches

performed by each defendant. See id. at 1. The defendants moved

for summary judgment on the remaining counts on May 3, 2013. See

Mem. in Supp. of Defs.’ Mot. for Summ. J. (“Mem.”), ECF No. 14-

1. Plaintiff responded on June 24, 2013. See Pl.’s Opp. to

Defs.’ Mot. for Summ. J. (“Opp.”), ECF No. 21. After multiple

extensions, the defendants filed their reply brief on January

10, 2014. See Defs.’ Reply in Supp. of Summ. J. (“Reply”), ECF

No. 27.1 The Court recites the facts relevant only to those

Counts that remain in dispute.

1. The Central Intelligence Agency’s Refusal to Search
(Count One)

On November 30, 2010, plaintiff submitted a request to the CIA

(the “Count One Request”) for “documents pertaining in whole or

1
On February 9, 2014, plaintiff moved to rescind the stipulated
dismissal of Count Fifteen. See Mot. to Rescind, ECF No. 30. The
defendants responded on February 26, 2014, Opp. to Mot. to
Rescind, ECF No. 31, and plaintiff filed her reply on March 9,
2014. See Reply in Supp. of Mot. to Rescind, ECF No. 32.

2
in part (all years, all classifications) to a list of closed

Inspector General investigations and reports.” Defs.’ Statement

of Facts (“Defs.’ SMF”), ECF No. 14-2 ¶ 1; see Ex. A to CIA

Decl., ECF No. 14-5 at 2.

On February 7, 2011, the CIA responded to plaintiff’s request

and indicated that:

We cannot accept your FOIA request in its current form
because it would require the Agency to perform an
unreasonably burdensome search. The FOIA requires
requesters to “reasonably describe” the information
they seek so that professional employees familiar with
the subject matter can locate responsive information
with a reasonable amount of effort. Because of the
breadth of your request, and the way in which our
records systems are configured, the Agency cannot
conduct a reasonable search for information responsive
to your request. We encourage you to refine the scope
of your request (such as a more narrow time frame for
the information you seek) to enable us to conduct a
reasonable search for responsive information.

Ex. B to CIA Decl., ECF No. 14-5 at 5; see Defs.’ SMF ¶ 2.

Plaintiff did not contact the CIA to narrow or modify her

request, and never filed an administrative appeal of the CIA’s

refusal to conduct a search. Defs.’ SMF ¶ 3.2

2. The Central Intelligence Agency’s Withholdings (Counts
Three and Four)

On July 5, 2011, plaintiff submitted to the CIA two separate

requests. The first request (the “Count Three Request”) sought:

(1) All records pertaining to changes made since 1994
in “the policies applicable to the training,

2
The CIA disclaimed any argument related to plaintiff’s failure
to file an administrative appeal. See Reply at 5 n.1.

3
 supervision, and performance appraisal of polygraph
examiners to ensure that polygraph examinations are
conducted in a professional manner and produce optimum
results,” in keeping with Recommendation No. 17 of the
SSCI Report;3 (2) All current “policies applicable to
the training, supervision, and performance appraisal
of polygraph examiners to ensure that polygraph
examinations are conducted in a professional manner
and produce optimum results,” regardless of whether or
not the records discuss actual or proposed policy
changes; and (3) Any other records pertaining to
Recommendation No. 17 of the SSCI Report.

Ex. F to CIA Decl., ECF No. 14-5 at 18; see Defs.’ SMF ¶ 5. The

CIA responded to this request on July 26, 2012, and indicated

that it had “located nine documents, seven of which can be

released in segregable form with deletions made on the basis of

FOIA exemption (b)(1), (b)(3), and/or (b)(6)” and that the

remaining two documents were “denied in their entirety on the

basis of FOIA exemption (b)(3) and (b)(5).” Ex. G to CIA Decl.,

ECF No. 14-5 at 27.

Plaintiff’s second request (the “Count Four Request”) sought:

(1) All records pertaining to “[evaluations] of the
polygraph as a part of CIA’s security program” since
1994, in keeping with Recommendation No. 18 of the
SSCI Report;4 (2) All records pertaining to polygraph

3
This refers to a report of the Senate Select Committee on
Intelligence. See Staff of S. Select Comm. on Intelligence, 103d
Cong., An Assessment of the Aldrich H. Ames Espionage Case and
Its Implications for U.S. Intelligence (Comm. Print 1994),
available at http://www.intelligence.senate.gov/pdfs103rd/
10390.pdf. Recommendation 17 proposed that “[t]he Director of
Central Intelligence should tighten polygraph procedures to make
the polygraph more useful” and made suggestions. Id. at 68-69.
4
Recommendation Number 18 suggested that “[t]he Director of
Central Intelligence should institute a fundamental reevaluation

4
 reliability and validity with respect to deception
detection; (3) All records pertaining to the
polygraph’s relation to other aspects of the security
process, such as background investigations, financial
and supervisory reporting, and psychological testing;
(4) All records pertaining to the use of inconclusive
test results, especially (but not limited to)
situations in which there are no damaging admissions;
(5) All records pertaining to the use of deceptive
polygraph results in the absence of damaging
admissions; and (6) Any other records pertaining to
Recommendation No. 18 of the SSCI Report.

Ex. H to CIA Decl., ECF No. 14-5 at 30; see Defs.’ SMF ¶ 7. The

CIA responded to this request on June 6, 2012, indicating that

it “located five documents, four of which can be released in

segregable form with deletions made on the basis of FOIA

exemption (b)(1), (b)(3), and/or (b)(6)” and that the remaining

document “must be denied in its entirety on the basis of FOIA

exemption (b)(1) and (b)(3).” Ex. I to CIA Decl., ECF No. 14-5

at 37; see Defs.’ SMF ¶ 8.

The parties agree that only certain CIA documents, and certain

withholdings, remain at issue. See Defs.’ SMF ¶¶ 6, 8; Opp. at

3-4. As to the Count Three Request, the parties dispute partial

redactions made pursuant to Exemption 3 in Documents 3 and 5.

See Defs.’ SMF ¶ 6. As to the Count Four Request, the parties

dispute the withholding in full of Document 1 pursuant to

of the polygraph as a part of CIA’s security program.” Staff of
S. Select Comm. On Intelligence, 103d Cong., An Assessment of
the Aldrich H. Ames Espionage Case and Its Implications for U.S.
Intelligence 69 (Comm. Print 1994), available at http://
www.intelligence.senate.gov/pdfs103rd/10390.pdf.

5
Exemptions 1 and 3, the partial withholding of Documents 2 and 4

pursuant to Exemptions 1 and 3, and the partial withholding of

Document 3 pursuant to Exemption 3. Id. ¶ 8; Opp. at 3–4.

3. The Defense Intelligence Agency’s Withholdings (Counts
Seven and Nine)5

On November 21, 2010, plaintiff submitted a request to the

Defense Intelligence Agency (“DIA”) by email, seeking “a

printout of the list of reports at the Defense Intelligence

Agency, or the Defense Academy of Credibility Assessment written

by Gordon Barland” and “a copy of each of the reports located.”

Ex. D to DIA Decl., ECF No. 14-9 at 32; see Defs.’ SMF ¶ 10. In

response, the DIA released multiple reports by Gordon Barland,

but withheld in full two of his reports (called V-70 and V-71)

pursuant to Exemptions 1, 3, and 7(E). Defs.’ SMF ¶ 10.

Plaintiff challenges only the Exemption 7(E) withholdings. See

Opp. at 4-5 & n.4.

On July 26, 2011, plaintiff submitted another request to the

DIA, seeking “copies of all course materials” for certain

“National Center for Credibility Assessment courses.” Ex. G to

DIA Decl., ECF No. 14-9 at 44; see Defs.’ SMF ¶ 11. The DIA

5
Although the parties have not stipulated to the dismissal of
Count Five, plaintiff appears to concede that Count. Count Five
addressed the DIA’s response to a November 21, 2010 request for
“a list of closed Inspector General investigations and reports.”
Compl. ¶¶ 34-40. In response to that request, the DIA released
one partially redacted document. See Defs.’ SMF ¶ 9. Plaintiff
did not list withholdings from that document among those she
continues to challenge. See Opp. at 4-5.

6
released numerous records in response and the parties dispute

only certain Exemption 3 and 6 withholdings from document V-21,

Exemption 7(E) withholdings from documents V-27 and V-29, and

Exemption 3 withholdings from document V-30. See Defs.’ SMF ¶

11; Opp. at 4–5.

4. The Department of Defense’s Withholdings (Count
Twelve)

On October 24, 2011, plaintiff submitted a request to the

DOD’s Office of the Inspector General (“DODIG”) for “a copy of

all Department of Defense Office of the Inspector General . . .

records relating to the use of polygraphs by DOD components.”

Ex. A to DODIG Decl., ECF No. 14-11 at 20; see Defs.’ SMF ¶ 12.

DODIG conducted a series of document releases in response. See

Defs.’ SMF ¶ 13. At issue are four documents, IG-1, IG-2, IG-3,

and IG-4. See Opp. at 5; DODIG Vaughn Index, ECF No. 14-12 at 2-

3. Plaintiff challenges partial withholdings from IG-1 and IG-2,

and the complete withholding of IG-3 and IG-4, all pursuant to

Exemption 7(E). See Opp. at 5; DODIG Vaughn Index, ECF No. 14-12

at 2-3.

5. The Federal Bureau of Investigation’s Withholdings
(Count Fourteen)

On July 5, 2011, plaintiff submitted to the DOJ’s Office of

Information Policy a request for “records related to the

processing of all FOIA appeals submitted by her, including, but

not limited to, Appeal No. 2010-2171, by OIP.” Ex. A to FBI

7
Decl., ECF No. 14-13 at 34 (emphasis omitted); see Defs.’ SMF ¶

14. The Office of Information Policy came upon four pages of

Federal Bureau of Investigation (“FBI”) records, which it

“referred . . . to FBI for review and direct response.” Defs.’

SMF ¶ 15. On April 24, 2012, the FBI released one page in full

and withheld portions of the other three pages pursuant to

Exemptions 5, 6, and 7(E). Id. Plaintiff challenges only a

single Exemption 5 withholding.

II. SUMMARY JUDGMENT STANDARD

Summary judgment is granted when there is no genuine issue of

material fact and the movant is entitled to judgment as a matter

of law. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S.

317, 325 (1986); Waterhouse v. District of Columbia, 298 F.3d

989, 991 (D.C. Cir. 2002). In determining whether a genuine

issue of fact exists, the court must view all facts in the light

most favorable to the non-moving party. See Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

Under FOIA, all underlying facts and inferences are analyzed in

the light most favorable to the FOIA requester; as such, only

after an agency proves that it has fully discharged its FOIA

obligations is summary judgment appropriate. Moore v. Aspin, 916

F. Supp. 32, 35 (D.D.C. 1996) (citing Weisberg v. U.S. Dep't of

Justice, 705 F.2d 1344, 1350 (D.C. Cir. 1983)). “FOIA cases

typically and appropriately are decided on motions for summary

8
judgment.” Gold Anti-Trust Action Comm. v. Bd. of Governors of

Fed. Reserve Sys., 762 F. Supp. 2d 123, 130 (D.D.C. 2011)

(quotation marks omitted).

In considering a motion for summary judgment under FOIA, the

court must conduct a de novo review of the record. See 5 U.S.C.

§ 552(a)(4)(B). The court may award summary judgment solely on

the basis of information provided by the agency in affidavits

that describe “the documents and the justifications for

nondisclosure with reasonably specific detail, demonstrate that

the information withheld logically falls within the claimed

exemption, and are not controverted by either contrary evidence

in the record nor by evidence of agency bad faith.” Military

Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981); see

also Vaughn v. Rosen, 484 F.2d 820, 826-28 (D.C. Cir. 1973).

Agency affidavits must be “relatively detailed and non-

conclusory.” SafeCard Servs. v. SEC, 926 F.2d 1197, 1200 (D.C.

Cir. 1991) (quotation marks omitted). Such affidavits are

“accorded a presumption of good faith, which cannot be rebutted

by purely speculative claims about the existence and

discoverability of other documents.” Id. (quotation marks

omitted). An agency may discharge its obligations under FOIA by

producing a Vaughn index, which is an affidavit that indexes and

specifically describes withheld or redacted records and explains

9
why each withheld record is exempt from disclosure. King v. U.S.

Dep’t of Justice, 830 F.2d 210, 218–19 (D.C. Cir. 1987).

III. DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

A. The CIA’s Refusal to Search (Count One).

The plaintiff’s first argument is that the CIA erroneously

refused to search for records responsive to the Count One

Request. That request sought all “documents pertaining in whole

or in part (all years, all classifications) to a list of closed

Inspector General investigations and reports.” Ex. A to CIA

Decl., ECF No. 14-5 at 2. The CIA claims that the request was

too broad to interpret and that responding would have been

unduly burdensome.

FOIA requires agencies to produce documents “upon any request

for records which . . . reasonably describes such records.” 5

U.S.C. § 552(a)(3)(A). A FOIA request must “enable[] a

professional employee of the agency who [is] familiar with the

subject area of the request to locate the record with a

reasonable amount of effort.” H.R. Rep. No. 93-876, at 6 (1974),

reprinted in 1974 U.S.C.C.A.N. 6267, 6271. “The linchpin inquiry

is whether ‘the agency is able to determine precisely what

records are being requested.’” Dale v. IRS, 238 F. Supp. 2d 99,

104 (D.D.C. 2002) (quoting Tax Analysts v. IRS, 117 F.3d 607,

610 (D.C. Cir. 1997)). By contrast, “[b]road, sweeping requests

lacking specificity are not sufficient.” Id. Relatedly, “[a]n

10
agency need not honor a request that requires an unreasonably

burdensome search,” Armstrong v. Bush, 139 F.R.D. 547, 553

(D.D.C. 1991) (quotation marks omitted), or would require the

agency “to locate, review, redact, and arrange for inspection a

vast quantity of material.” Am. Fed. of Gov’t Emps. v. U.S.

Dep’t of Commerce, 907 F.2d 203, 209 (D.C. Cir. 1990). This is

so because “FOIA was not intended to reduce government agencies

to full-time investigators on behalf of requesters.”

Assassination Archives & Research Ctr. v. CIA, 720 F. Supp. 217,

219 (D.D.C. 1989).

The CIA claims that the Count One Request did not reasonably

describe the records it sought because the language “pertaining

in whole or in part” was undefined and caused the request to

cover any document that is arguably relevant to any list of

closed Inspector General investigations and reports, even if the

document did not reference such a list. See First Declaration of

Martha M. Lutz (“CIA Decl.”), ECF No. 14-4 ¶ 22. The plaintiff

counters that the CIA is intentionally misinterpreting her

request, which was “limited to only those records which

referenced (1) a list (2) of closed (3) Inspector General

investigations and reports,” and asserts that “there would be

very few places which would maintain records discussing lists of

OIG investigations.” Opp. at 8 (emphasis omitted).

11
 Plaintiff’s request was broader than she claims. It did not

seek “all lists of closed Inspector General investigations and

reports” or even “all records that refer to a list of closed

Inspector General investigations and reports.” It sought all

records that “pertain[] in whole or in part (all years, all

classifications)” to such a list. Ex. A to CIA Decl., ECF No.

14-5 at 2. Nor did she describe how the CIA should determine

whether a record “pertain[s] in whole or in part” to such a

list. This phrase is difficult to define because a record may

pertain to something without specifically mentioning it. See

Black’s Law Dictionary (9th ed. 2009), pertain (“[t]o relate to”

or “to concern”); Latham v. U.S. Dep’t of Justice, 658 F. Supp.

2d 155, 157, 161 (D.D.C. 2009) (request for “any records . . .

that pertain in any form or sort to [plaintiff]” was “overly

broad, and to require the [agency] to process it would be overly

burdensome”); James Madison Project v. CIA, No. 8-cv-1323, 2009

WL 2777961, at *4 (E.D. Va. Aug. 31, 2009) (request for “all CIA

documents pertaining to . . . [t]he indexing and organizational

structure of all CIA Systems of Records subject to FOIA” was

overbroad “because the term ‘pertaining to’ is synonymous to the

term ‘relating to’” and that “unfairly places the onus of non-

production on the recipient of the request”) (quotation marks

omitted; alteration in original). Accordingly, although

plaintiff’s request clearly encompasses all lists of closed

12
Inspector General investigations and reports and any documents

specifically referencing those lists, it would also cover

documents that otherwise relate to those lists.

The problem for an agency responding to such a request is that

the lack of clarity leaves the agency to guess at the

plaintiff’s intent. As the CIA explained, plaintiff’s request

could cover “any documents that relate to closed investigations

and reports.” Second Declaration of Martha M. Lutz (“CIA Suppl.

Decl.”), ECF No. 27-1 ¶ 13 (emphasis omitted). Indeed, any

document related to a closed investigation may arguably pertain,

at least “in part,” to a subsequently generated list of

investigations. Given this breadth, the CIA could not assume

that responsive documents would be located only in those “very

few places which would maintain records discussing lists of OIG

investigations.” Opp. at 8. That would be a starting point, but

the CIA would also have needed to devise a method to search for

records that do not mention a list of closed Inspector General

investigations and reports, but still somehow pertain to such a

list. This borders on the “all-encompassing fishing expedition”

on which a FOIA requester cannot embark. Dale, 238 F. Supp. 2d

at 104-05; see Marks v. U.S. Dep’t of Justice, 578 F.2d 261,

262, 263 (9th Cir. 1978) (request for all records “under” a

particular individual’s name was a “broad, sweeping request[]”

that did not reasonably describe the records it sought); Hunt v.

13
CFTC, 484 F. Supp. 47, 51 (D.D.C. 1979) (request for records

that “concerned” the requester was overbroad); Fonda v. CIA, 434

F. Supp. 498, 501 (D.D.C. 1977) (requester who sought “all

documents which . . . ‘concern her’ but do not mention her name”

made overbroad request by “offer[ing] no criterion by which

defendants can determine which documents ‘concern her’”).

This problem is especially acute because the CIA’s record-

keeping systems do not permit it to “identify records that do

not necessarily reference a document, but which may bear some

relation to it.” Mem. at 33 (citing CIA Decl. ¶ 22). Although

the D.C. Circuit has cautioned against “an ‘undiscriminating

adoption’” of agency claims, Armstrong, 139 F.R.D. at 553

(quoting Founding Church of Scientology, Inc. v. NSA, 610 F.2d

824, 837 (D.C. Cir. 1979)), “an agency’s affidavit detailing the

reasons that searches are unreasonably burdensome should be

accepted unless there is ‘some reason to believe that the

documents could be located without an unreasonably burdensome

search.’” Id. (quoting Goland v. CIA, 607 F.2d 339 (D.C. Cir.

1978)). Here, “[t]he breadth of plaintiff’s request[] is not

compatible with the CIA’s document retrieval system, and

plaintiff must deal with that system as it is.” Assassination

Archives, 720 F. Supp. at 220.

Moreover, plaintiff had ample opportunity to accept the CIA’s

offer to reframe or narrow her request, but she failed to do so.

14
Now that this case has been litigated for years, plaintiff seeks

to obtain only lists of closed Inspector General investigations

and reports themselves, not any records “about these lists.”

Opp. at 10 n.7. This narrowing, however, did not come in time to

permit the CIA to conduct a search responsive to a more

reasonably framed request. Moreover, the parties have stipulated

that the sole legal issue before the Court is “whether CIA was

legally obligated to conduct [a] search” in response to

plaintiff’s request. Joint Stipulation, ECF No. 13 at 2. Faced

with the task of guessing at plaintiff’s intent regarding what

might “pertain” to any list of closed Inspector General reports

and investigations, the CIA followed a reasonable path: it

sought additional guidance from the requester and, when none was

provided, closed the file.6

B. The CIA’s Withholdings (Counts Three and Four).

6
After this lawsuit was filed, the CIA searched for “a
comprehensive list of closed OIG investigations” and “determined
that no such listing exists.” CIA Decl. ¶ 22. Plaintiff attached
to her opposition what she claims are lists of OIG
investigations, and argued that the CIA’s declaration was
therefore untrustworthy. See Opp. at 9-10. To begin, it is not
clear that the documents are all what plaintiff claims; one is a
“more comprehensive list, which includes open and closed
investigations and other OIG matters, such as grievances.”
Suppl. CIA Decl. ¶ 13 n.5. The Court does not infer bad faith
from the agency’s failure to locate a single document in
connection with a search where the parties have agreed that the
sufficiency of any search is not a legal issue before this
Court. See Joint Stipulation, ECF No. 13 at 2.

15
 Plaintiff also challenges the CIA’s Exemption 1 and 3

withholdings in response to the Count Three and Count Four

Requests. She disputes partial redactions in five documents and

the complete withholding of a sixth. Because the CIA indicated

that “all of the information withheld pursuant to Exemption

(b)(1) is also covered by [Exemption (b)(3)],” CIA Suppl. Decl.

¶ 4, the Court need not address the applicability of Exemption 1

if the Exemption 3 withholdings were proper. See, e.g., Elec.

Frontier Found. v. U.S. Dep’t of Justice, 739 F.3d 1, 13 (D.C.

Cir. 2014).

Exemption 3 protects records that are “specifically exempted

from disclosure by statute . . . if that statute . . . requires

that the matters be withheld from the public in such a manner as

to leave no discretion on the issue; or . . . establishes

particular criteria for withholding or refers to particular

types of matters to be withheld.” 5 U.S.C. § 552(b)(3). “In

determining whether the government properly invoked this

exemption, courts should ‘not closely scrutinize’ the withheld

document’s contents but rather determine (1) ‘whether there is a

relevant statute’ and (2) ‘whether the document falls within

that statute.’” Darnbrough v. U.S. Dep’t of State, 924 F. Supp.

2d 213, 217 (D.D.C. 2013) (quoting Perry-Torres v. Dep’t of

State, 404 F. Supp. 2d 140, 143 (D.D.C. 2005)).

16
 The CIA relies on two statutes for its Exemption 3

withholdings: Section 102A(i)(1) of the National Security Act,

50 U.S.C. § 3024(i)(1); and Section 6 of the Central

Intelligence Agency Act of 1949, 50 U.S.C. § 3507. These

provisions “plainly are statutes contemplated by Exemption 3.”

Int’l Counsel Bureau v. CIA, 774 F. Supp. 2d 262, 273 (D.D.C.

2011). The question for the Court is whether the information

that the CIA withheld falls within these statutes. Darnbrough,

924 F. Supp. 2d at 217.

1. Section 102A(i)(1) of the National Security Act

Section 102A(i)(1) of the National Security Act provides that

“[t]he Director of National Intelligence shall protect

intelligence sources and methods from unauthorized disclosure.”

50 U.S.C. § 3024(i)(1). This provision grants the CIA “very

broad authority to protect all sources of intelligence

information from disclosure.” CIA v. Sims, 471 U.S. 159, 168–69

(1985). According to the Supreme Court, “it is the

responsibility of the Director of Central Intelligence, not that

of the judiciary, to weigh the variety of complex and subtle

factors in determining whether disclosure of information may

lead to an unacceptable risk of compromising the Agency’s

intelligence-gathering process.” Id. at 180. Accordingly,

“courts are required to give ‘great deference’ to the CIA’s

assertion that a particular disclosure could reveal intelligence

17
sources or methods.” Berman v. CIA, 501 F.3d 1136, 1140 (9th

Cir. 2007) (quoting Sims, 471 U.S. at 179); see also Larson v.

Dep’t of State, 565 F.3d 857, 865 (D.C. Cir. 2009). In light of

the Supreme Court’s decision in Sims, the Act provides a “near-

blanket FOIA exemption.” Berman, 501 F.3d at 1140 (quotation

marks omitted).7

Plaintiff focuses her argument on the CIA’s invocation of the

National Security Act in its Vaughn indices. See Opp. at 11.

These assertions, plaintiff claims, fail to meet the agency’s

burden of demonstrating in a non-conclusory fashion that the

withheld information relates to an intelligence source or

method. See id. at 11-12. Plaintiff is correct that the Vaughn

indices use generic language to invoke the National Security

Act. See, e.g., Count Three Vaughn Index, ECF No. 14-7 at 9

(stating that the document “is withheld in part on the basis of

FOIA exemption (b)(3)” because it “contains information relating

to intelligence sources and methods that is specifically

exempted from disclosure pursuant to the National Security Act

7
The Ninth Circuit has repeatedly warned that “Sims leaves
courts ‘only a short step from exempting all CIA records from
FOIA.’” Id. (quoting Hunt v. CIA, 981 F.2d 1116, 1120 (9th Cir.
1992). It has further expressed “[c]oncern[] that this broad
reading of CIA authority might be contrary to congressional
intent” and has “invited Congress to ‘take the necessary
legislative action to rectify’ that disparity.” Id. (quoting
Hunt, 981 F.2d at 1120); see also Minier v. CIA, 88 F.3d 796,
804 (9th Cir. 1996).

18
of 1947”); see also id. at 115; Count Four Vaughn Index, ECF No.

14-8 at 1, 4, 24, 55. That is not all the CIA provided, however.

First, the CIA explained that the information it withheld

under the National Security Act related to “covert employees and

facilities as well as the limitations, capabilities, successes,

weaknesses or other issues pertaining to polygraph

examinations.” CIA Decl. ¶ 43. Release of this information, the

agency asserts, “would expose sources and methods of the agency,

not simply in the personnel screening settings, but also the

capabilities and limitations of the polygraph in all

applications.” Id. In brief, disclosure of the withheld

information “would reveal critical details about the polygraph

program that would compromise the effectiveness of this method.”

Suppl. CIA Decl. ¶ 8; see also id. ¶¶ 9–11.

The Agency also specified how the particular documents and

withholdings relate to that program. Each document is identified

and described in ways that clarify its relation to the CIA’s

concerns. See Count Three Vaughn Index, ECF No. 14-7 at 9

(“Polygraph Procedures Manual,” which “discusses authorities,

code of ethics, examiner standards, and other topics with regard

to polygraph examinations”; the withheld information “relates to

the polygraph techniques, internal procedures and analysis”);

id. at 115 (regulation related to the “Administration of

Polygraph Examinations” which is described as “establish[ing]

19
the policy for the administration of polygraph examinations”);

Count Four Vaughn Index, ECF No. 14-8 at 1 (report regarding

“[u]se of polygraph in security screening”); id. at 4 (report

entitled “The Value of the Polygraph in CIA’s Personnel Security

Program,” from which CIA redacted “information that would reveal

intelligence sources and methods as they are relate[d] to

polygraph screening procedures”); id. at 24 (index for a report

entitled “Validity and Reliability of the Polygraph as a Tool

for Identifying Deception and Nondeception,” which was written

“to measure the validity and technical reliability of polygraph

examinations”); id. at 55 (report on “CIA’s Use of Polygraphy in

Personnel Screening,” which “goes into specific detail about

reliance on polygraph examinations, the polygraph process,

reinvestigation, training, and recommendations”).

Moreover, the CIA’s supplemental declaration provided

additional description of the particular information that was

redacted from individual documents. See Suppl. CIA Decl. ¶¶ 8-11

(material withheld from the documents included “internal agency

security regulations, details about polygraph examinations

including sample questions, analysis of testing data, and the

contents of examination reports”; “specifics on the accuracy of

certain areas tested during the exam”; “specific details about

the CIA’s polygraph program, including in depth analysis of the

Agency’s security processes and assessments of test techniques”;

20
“statistics and anecdotal and empirical evidence . . . detailing

the utility of and benefits derived from the program”; and “the

organization and functions of the polygraph program and . . .

the utility of this method in different settings”).

The CIA also explained why its polygraph program is itself an

intelligence source and method. Polygraphs are “a key

intelligence method used in the Agency’s security processes.”

They are “a tool for obtaining information and assessing

deception in the course of applicant and personnel screening

evaluations and counterintelligence investigations,” form part

of the agency’s method for “determining an employee’s

eligibility for initial or continued access to classified

information,” and help “reduce the Agency’s vulnerability to

counterintelligence risks.” Id. ¶ 4. Giving “substantial weight

to the CIA’s affidavits,” Larson, 565 F.3d at 865, as the Court

must, this is sufficient to establish that the withheld

information relates to the detailed workings, efficacy, and

weaknesses of a CIA intelligence source and method.8 Accordingly,

8
Courts have held that similar topics relate to intelligence
sources and methods under the National Security Act. See Blazy
v. Tenet, 979 F. Supp. 10, 23-24 (D.D.C. 1997) (upholding the
Exemption 3 withholding of polygraph records based in part on
agency’s explanation “that plaintiff’s polygraphs constitute
intelligence methods and therefore cannot be released”).

21
the CIA’s withholdings under Section 102A(1)(i) of the National

Security Act were justified.9

2. Section 6 of the Central Intelligence Act of 1949

The remaining Exemption 3 withholdings were done pursuant to

Section 6 of the Central Intelligence Act, which provides:

[I]n order further to implement section 3024(i) of
this title that the Director of National Intelligence
shall be responsible for protecting intelligence
sources and methods from unauthorized disclosure, the
Agency shall be exempted from . . . the provisions of
any other law which require[s] the publication or
disclosure of the organization, functions, names,
official titles, salaries, or numbers of personnel
employed by the Agency.

50 U.S.C. § 3507. Plaintiff agrees that Section 6 protects

information about CIA employees, such as their names and

9
Plaintiff cites Berman, 501 F.3d 1136 for the proposition that
the CIA cannot invoke the Act solely “because it uses polygraphs
as part of its work.” Opp. at 12. That case is entirely
distinguishable. In Berman, the CIA relied on the National
Security Act to prevent disclosure of the President’s Daily
Briefs because they were “part of the process by which the CIA
advises the President . . . and therefore intelligence decisions
are directly affected by [them].” 501 F.3d at 1146 (quotation
marks omitted). The Ninth Circuit rejected this argument because
the Briefs “are nothing more than simple memoranda the CIA uses
to communicate with the President.” Id. The Ninth Circuit’s
statement that “[i]f we were to accept the CIA’s logic, then
every written CIA communication . . . would be a protected
‘intelligence method’ because it is a method that CIA uses in
doing its work,” id., is not applicable here, where the CIA is
seeking to protect information related to its polygraph program,
a method by which the agency obtains “information and assess[es]
deception in the course of applicant and personnel screening
evaluations and counterintelligence investigations.” Suppl. CIA
Decl. ¶ 4.

22
specific job functions. See Opp. at 14, 20 n.12.10 Although it is

possible that all of the information withheld by the CIA under

the CIA Act relates directly to agency personnel in this manner,

the Court cannot conclude as much on the current record and

therefore addresses the parties’ competing interpretations of

Section 6.

The dispute boils down to a simple question: does the phrase

“of personnel employed by the Agency” modify each item in the

list of information that Section 6 exempts from disclosure or

only the final item? The plaintiff argues that it modifies each

item, meaning that Section 6 exempts from disclosure “the

organization of personnel employed by the CIA; the functions of

personnel employed by the CIA; the names of personnel employed

by the CIA; the official titles of personnel employed by the

CIA; the salaries of personnel employed by the CIA; and the

numbers of personnel employed by the CIA.” Opp. at 14–15

(emphases omitted). The defendants read the phrase to modify

only the final item in the list. See Reply at 12.

10
Although she does not challenge the withholding of employee
names, plaintiff argues that the Agency’s declaration is “a
textbook example of ‘general sloppiness’” because it mentions
that CIA employee names are present in forty-nine documents, but
the CIA claimed FOIA Exemption 6’s protection for such
information in only two instances. See Opp. at 14. The CIA
clarified that it “does not typically assert Exemption 6 to
protect the identities of its own employees, and instead relies
on the CIA Act to do so.” CIA Suppl. Decl. ¶ 7 n.4. The two
Exemption 6 withholdings involved the names of non-employees.
See Defs.’ Reply at 11.

23
 The text of Section 6 does not readily bear the defendants’

interpretation. If the phrase “of personnel employed by the

Agency” modifies only the final term in the list, the provision

becomes difficult to understand because it would exempt from

disclosure: “the organization,” “the functions,” “the names,”

“the official titles,” “the salaries,” and “the numbers of

personnel employed by the agency.” The CIA appears to believe

that the other terms should be read as modified by the phrase

“of the agency,” but that phrase does not appear in Section 6.

Under that reading of Section 6, moreover, many items in the

list would be rendered absurd (e.g. “the salaries [of the

Agency],” “the names [of the Agency],” and “the official titles

[of the Agency]”). Nor can the fact that Section 6 is entitled

“Protection of nature of Agency’s functions,” 50 U.S.C. § 3507,

overcome the provision’s plain language. “[A] statute’s title

may not undo that which the statute itself makes plain.” United

States v. Waters, 158 F.3d 933, 938 (6th Cir. 1998).11

11
Because reading Section 6 as defendant suggests renders the
provision unclear, the last antecedent rule—that “a limiting
clause or phrase . . . should ordinarily be read as modifying
only the noun or phrase that it immediately follows,” Barnhart
v. Thomas, 540 U.S. 20, 26 (2003)—does not apply. As the D.C.
Circuit recently reiterated, that rule may “be overcome by other
indicia of meaning.” Emory v. United Air Lines, 720 F.3d 915,
926 (D.C. Cir. 2013). Similarly, the CIA’s suggestion that it is
entitled to deference, Reply at 15–16, is unavailing because its
interpretation is at odds with the plain language of Section 6.

24
 The Court does not write on a blank slate, moreover. Two

Judges of this Court recently rejected identical arguments made

by the CIA. See Whitaker v. CIA, No. 12-316, 2014 WL 914603, at

*5–7 (D.D.C. Mar. 10, 2014); Nat’l Sec. Counselors v. CIA, 960

F. Supp. 2d 101, 174-85 (D.D.C. 2013). There is also a long

history of decisions from the D.C. Circuit limiting the scope of

Section 6. See Nat’l Sec. Counselors, 960 F. Supp. 2d at 175-76.

First, as “an outer limit,” id. at 175, the Circuit has held

that Section 6 “does not ‘allow[] the [CIA] to refuse to provide

any information at all about anything it does.’” Id. (quoting

Phillippi v. CIA, 546 F.2d 1009, 1015 n.14 (D.C. Cir. 1976))

(alterations in original). The provision thus stands in contrast

to Section 6 of the National Security Agency Act, 50 U.S.C. §

3605(a), which protects from disclosure “the organization or any

function of the National Security Agency, or any information

with respect to the activities thereof, or of the names, titles,

salaries, or number of the persons employed by such agency.” See

Hayden v. NSA, 608 F.2d 1381, 1389-90 (D.C. Cir. 1979) (noting

that the National Security Agency Act is “broader” than Section

6 because it protects “‘any information with respect to the

activities’ of the NSA”).

The D.C. Circuit has also made clear that Section 6 “applies

only to ‘information about [the CIA’s] internal structure.’”

Nat’l Sec. Counselors, 960 F. Supp. 2d at 175 (quoting

25
Phillippi, 546 F.2d at 1015 n.14) (alteration in original). The

CIA repeatedly seizes on the use of the phrase “internal

structure” as support for interpreting the term to cover

anything related to the organization or function of the CIA. See

Reply at 10–12. The D.C. Circuit, however, has made clear that

information related to the Agency’s structure is protected only

to the extent it relates to “information concerning the Agency’s

personnel.” Linder v. Dep’t of Defense, 133 F.3d 17, 25 (D.C.

Cir. 1998). Thus, as Judge Howell found in National Security

Counselors, Section 6, “standing alone, only protects

information on the CIA’s personnel and internal structure, such

as the names of personnel, the titles and salaries of personnel,

or how personnel are organized within the CIA.” 960 F. Supp. 2d

at 175 (quotation marks and citation omitted).

The Agency argues that even if Section 6’s protections apply

only to personnel information, information about the functions

and organization of the CIA necessarily relates to the function

and organization of its employees. Reply at 12–13. Were there no

distinction between the function and organization of agency

personnel and the function and organization of the Agency,

however, Section 6 would “encompass any kind of activity

appropriately carried out by the CIA.” Nat’l Sec. Counselors,

960 F. Supp. 2d at 176 (holding that the CIA’s argument would

“strip[] the word personnel of any real meaning”) (quotation

26
marks omitted). Thus, although information related to the

function and organization of the Agency may relate directly to

the function or organization of agency personnel, it does not

necessarily do so. This comports with “the plain text of the

statute[, which] limits protection from disclosure only to the

functions and organization pertaining to or about personnel,”

id., and the D.C. Circuit’s view that Section 6 does not exempt

from disclosure “any information at all about anything [the CIA]

does.’” Phillippi, 546 F.2d at 1015 n.14.12 Accordingly, Section

6’s protection applies only when the withheld information

relates to “the CIA’s personnel and internal structure, such as

the names of personnel, the titles and salaries of personnel, or

how personnel are organized within the CIA.” Nat’l Sec.

12
Illustrative of why “the functions and organization of
personnel” has a narrower meaning than “the functions and
organization of the agency” is the Supreme Court’s
interpretation of the adjective “personnel” as used in FOIA’s
Exemption 2. See Milner v. Dep’t of Navy, 131 S. Ct. 1259
(2011). Exemption 2 protects from disclosure information
“related solely to the internal personnel rules and practices of
an agency.” 5 U.S.C. § 552(b)(2). In Milner, the Court held that
the term “personnel” limits the types of “rules and practices”
that are covered by Exemption 2 to those that relate to human-
resources functions, rather than a broader set of agency rules
and practices. Id. at 1264. Reading the term “personnel” in
Section 6 to effectively mean “agency” would similarly do
violence to the word’s ordinary meaning.

27
Counselors, 960 F. Supp. 2d at 175 (quotations marks and

citations omitted); see also Whitaker, 2014 WL 914603, at *5.13

Under this interpretation of Section 6, the Court cannot

currently say whether the CIA’s withholdings were proper. The

CIA’s initial declaration described the information withheld

under the CIA Act as including: (1) “the names of CIA

employees,” their “official titles,” and “information disclosing

their organizational functions”; (2) “contact information for

CIA personnel”; (3) “internal CIA organizational data, including

file paths”; (5) “internal taskings which would reveal internal

document processing methods, as well as the organization of and

capabilities related to the CIA’s decentralized information

management systems”; and (6) “internal CIA organizational and

functional information.” CIA Decl. ¶ 41. In its supplemental

declaration, the CIA asserted that “the sole instances in which

the CIA has relied exclusively upon the CIA Act concern internal

office and distribution information,” including “the internal

13
The Court is not persuaded by earlier decisions that arguably
condoned the CIA’s interpretation. Those decisions analyzed the
interpretive question very briefly and some appeared to rely
simultaneously on the broad protections provided by the National
Security Act. See Inst. For Pol’y Studies v. CIA, 885 F. Supp.
2d 120, 146–47 (D.D.C. 2012); Schoenman v. FBI, 841 F. Supp. 2d
69, 83–84 (D.D.C. 2012); ACLU v. Dep’t of Justice, 808 F. Supp.
2d 280, 288–89 (D.D.C. 2011), rev’d on other grounds, 710 F.3d
422 (D.C. Cir. 2013); McGehee v. U.S. Dep’t of Justice, 800 F.
Supp. 2d 220, 231–32 (D.D.C. 2011); James Madison Project v.
CIA, 607 F. Supp. 2d 109, 125–27 (D.D.C. 2009); Riquelme v. CIA,
453 F. Supp. 2d 103, 111 (D.D.C. 2006).

28
divisions within the Agency, internal telephone numbers, and

classification dissemination controls” as well as other markings

“involving internal office and distribution information.” CIA

Suppl. Decl. ¶ 6. The CIA also claims that “the National

Security Act applies to the vast majority of information for

which the CIA Act is claimed.” Id. These declarations

nonetheless imply that the withheld information may have related

not only to personnel, but also to the organization of the CIA

itself. To obtain summary judgment, the CIA must provide a

clearer description of the withheld information. Moreover, to

the extent that withheld information relates to “internal CIA

organizational data, including file paths,” “internal document

processing methods,” and “the organization of and capabilities

related to the CIA’s decentralized information management

systems,” CIA Decl. ¶ 41, the Agency must provide a more

detailed description to justify withholding that information as

related to the organization and functions of agency personnel.

See Nat’l Sec. Counselors, 960 F. Supp. 2d at 179 (“Shorn of the

gratuitous addition of the words ‘internal’ and

‘organizational,’ it appears that the information . . . is

information about how the CIA manages, stores, and retrieves

information.”).14

14
It is not clear whether the information that was withheld
pursuant to the CIA Act alone was also subject to an Exemption

29
 C. The DIA’s Withholdings (Counts Seven and Nine).

Plaintiff challenges certain of the DIA’s withholdings with

respect to six documents. She challenges withholdings of

polygraph information under Exemption 3 from documents V-21 and

V-30; thermal images from document V-21 pursuant to Exemptions 3

and 6; and Exemption 7(E) withholdings from documents V-21, V-

27, V-29, V-70, and V-71.

1. Exemption 3 Withholdings Pursuant to the National
Security Act.

The DIA’s Exemption 3 withholdings from V-21 and V-30 were all

done pursuant to Section 102A(i)(1) of the National Security

Act. As discussed in Part III.B.1, supra, that provision exempts

from disclosure information related to “intelligence sources and

methods,” 50 U.S.C. § 3024(i)(1), and grants “very broad

authority to protect all sources of intelligence information

from disclosure.” Sims, 471 U.S. at 168–69. As long as the

agency provides “justifications for nondisclosure with

reasonably specific detail, demonstrate[s] that the information

withheld logically falls within the claimed exemptions, and

show[s] that the justifications are not controverted by contrary

evidence in the record or by evidence of [agency] bad faith,”

One withholding. Accordingly, the parties’ disputes regarding
Exemption One may be rendered moot by the Court’s ruling
regarding the National Security Act and the Court declines to
address those arguments at this time.

30
Berman, 501 F.3d at 1140, the Court must “accord[] substantial

weight to the [agency’s] affidavits.” Larson, 565 F.3d at 865.

The plaintiff claims that the DIA’s Vaughn index and

declarations are vague and conclusory. See Opp. at 22-23. In

fact, the DIA provided sufficient information to show that it is

entitled to summary judgment. The DIA’s Vaughn Index states that

V-21 is entitled “National Center for Credibility Assessment,

Alternative Credibility Assessment” and that the National

Security Act was relied upon “to protect intelligence sources

and methods.” DIA Vaughn Index, ECF No. 14-10 at 1. V-30 is

entitled “National Center for Credibility Assessment, Continuing

Education PDD,” and the National Security Act was relied upon

“to protect sensitive information on the population of federal

polygraph examiners throughout government agencies; how

polygraph examiners are trained and the locations where the

training occurs.” Id. at 4.

The DIA’s supplemental declaration provided additional detail.

It explained that the National Center for Credibility

Assessment, the entity to which both V-21 and V-30 relate,

“conducts developmental research and provides academic training

to the polygraph programs within the United States Intelligence

Community,” which then “utilize[s] the . . . technology for both

national security screening and investigative purposes.” Second

Declaration of Alesia Y. Williams (“Suppl. DIA Decl.”), ECF No.

31
27-2 ¶ 2. The DIA further stated that the National Security Act

“was specifically cited to protect intelligence sources and

methods within the Intelligence Community that are related to

the use of polygraph technology,” which “is used by DIA and

other agencies for their intelligence activities and to asses

employees’ and potential employees’ suitability for access to

classified materials.” Id. ¶ 4. Finally, the DIA declared that

“it is not possible to provide any additional information

without compromising the sources and methods.” Id.

This is sufficient to establish that the withheld information

relates to research and training programs of the National Center

for Credibility Assessment regarding polygraphs that are used by

the intelligence community for security and counterintelligence

purposes. In view of the deference owed an agency under the

National Security Act, the Court cannot disagree that the DIA’s

polygraph program is an intelligence source and method and that

the withheld information relates to that program.15

2. Exemption 3 and 6 Withholdings of Thermal Images.

15
Moreover, absent evidence of agency bad faith, the Court must
also consider the agency’s declaration that providing any
further detail would disclose the very information it seeks to
protect. See Sims, 471 U.S. at 179 (noting that “[i]t is
conceivable that the mere explanation of why information must be
withheld can convey valuable information to a foreign
intelligence agency”).

32
 Plaintiff also challenges the DIA’s withholding of thermal

images from Document V-21. The DIA explained that the images are

“photographs of Department of Defense employees or contractor

personnel taken for training purposes with a thermal camera . .

. to demonstrate the potential use of these sorts of images in

the credibility assessment process.” DIA Suppl. Decl. ¶ 5. These

images were withheld pursuant to Exemption 6, which protects

from disclosure “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).16 Exemption

6 covers any “[g]overnment records on an individual which can be

identified as applying to that individual.” U.S. Dep’t of State

v. Wash. Post. Co., 456 U.S. 595, 602 (1982) (quotation marks

omitted); see also Judicial Watch, Inc. v. FDA, 449 F.3d 141,

152 (D.C. Cir. 2006) (Exemption 6 applies “to exempt not just

files, but also bits of personal information . . . the release

of which would create a palpable threat to privacy”) (quotation

marks and alterations omitted). The Court determines whether

Exemption 6 applies by “weigh[ing] the privacy interest in non-

disclosure against the public interest in the release of the

records in order to determine whether, on balance, the

16
The images were also withheld under 10 U.S.C. § 424, which
exempts from disclosure “the organization or any function of
[the DIA]” and “the number of persons employed by or assigned or
detailed to [the DIA] or the name, official title, occupational
series, grade, or salary of any such person.”

33
disclosure would work a clearly unwarranted invasion of personal

privacy.” Lepelletier v. FDIC, 164 F.3d 37, 46 (D.C. Cir. 1999)

(quotation marks omitted).

“The only relevant public interest . . . is the extent to

which disclosure of the information sought would shed light on

an agency’s performance of its statutory duties or otherwise let

citizens know what their government is up to.” Id. (quotation

marks and alterations omitted). Here, the public interest in

disclosure of the thermal images is minimal because the “same

type of image could be created with any thermal camera,

including through widely-available smart phone ‘apps’ that

generate images similar to those being withheld.” Suppl. DIA

Decl. ¶ 11. “[T]he public interest is not furthered ‘by

disclosure of information about private citizens that is

accumulated in various governmental files but that reveals

little or nothing about an agency’s own conduct.’” People for

the Am. Way v. Nat’l Park Serv., 503 F. Supp. 2d 284, 304

(D.D.C. 2007) (quoting U.S. Dep’t of Justice v. Reporters Comm.

For Freedom of the Press, 489 U.S. 749, 773 (1989)).

Privacy concerns outweigh this minimal public interest. “The

privacy interest in nondisclosure encompasses an individual’s

control of personal information and is not limited to that of an

embarrassing or intimate nature.” Id. (citing Wash. Post Co.,

456 U.S. at 600). Images of an individual may implicate a

34
privacy interest under Exemption 6. See, e.g., Advocates for

Highway & Auto Safety v. Fed. Highway Admin., 818 F. Supp. 2d

122, 129 (D.D.C. 2011). Indeed, plaintiff “concedes that

photographs of employees may be legitimately withheld,” but

argues that thermal images are different because no employee may

be identified from the images. See Opp. at 23-24. The DIA

stated, however, that the images “could reasonably lead to the

personal identification of these . . . employees or contractor

personnel.” DIA Suppl. Decl. ¶ 5.

Four of the images are such that “[a] viewer is easily able to

identify the gender, age, facial shape, and facial hair of the

subject” and “can easily make out more detailed facial features

that make each person unique.” Id. ¶ 7. “These four images

provide the viewer with an image that is . . . similar to a

regular photograph, but with a detailed color overlay that shows

the measurement of the heat emanating from the subjects’ skin.”

Id. Three other images, while of lesser quality “still allow a

viewer to identify gender, basic facial features, facial hair,

and the subject’s general age.” Id. ¶ 8. Ultimately, the DIA

stated, “it would still be quite easy for a viewer to use the

images’ personally identifying information to discover the

identity of each of these [individuals].” Id. ¶ 9.

Nor are the images being withheld solely to prevent unwanted

disclosure of the individuals’ photographs. As the DIA

35
explained, disclosure of the identities of those depicted in the

images would “allow[] outside actors to identify employees of

this Agency who may be working to further the mission of the

Intelligence Community; and, the release could reasonably be

expected to damage the individual privacy of the employees or

contractors by disclosing their identities to the general

public.” Id. ¶ 6. At a minimum, this creates a moderate privacy

interest and “something, even a modest privacy interest,

outweighs nothing every time.” Nat’l Ass’n of Retired Fed. Emps.

v. Horner, 879 F.2d 873, 879 (D.C. Cir. 1989).17

3. Exemption 7(E) Withholdings.

Plaintiff also challenges the DIA’s withholding of polygraph-

related information pursuant to Exemption 7(E) from V-27, V-29,

V-70, and V-71. Exemption 7(E) protects “records or information

compiled for law enforcement purposes . . . to the extent that

the production of such law enforcement records or information .

. . would disclose techniques and procedures for law enforcement

investigations or prosecutions . . . if such disclosure could

reasonably be expected to risk circumvention of the law.” 5

U.S.C. § 552(b)(7)(E). An agency does not bear “a highly

17
The images were also properly withheld under 10 U.S.C. § 424,
which is “a statute that falls within the scope of Exemption 3.”
Physicians for Human Rights v. U.S. Dep’t of Defense, 778 F.
Supp. 2d 28, 36 (D.D.C. 2011). Section 424 “clearly aims to
protect the identity of DIA personnel” and is therefore a proper
basis for withholding the images. Larson v. Dep’t of State, No.
2-cv-1937, 2005 WL 3276303, at *15 (D.D.C. Aug. 10, 2005).

36
specific burden of showing how the law will be circumvented”;

rather, “exemption 7(E) only requires that [the agency]

‘demonstrate[] logically how the release . . . might create a

risk of circumvention of the law.’” Mayer Brown LLP v. IRS, 562

F.3d 1190, 1194 (D.C. Cir. 2009) (quoting PHE, Inc. v. Dep’t of

Justice, 983 F.2d 248, 251 (D.C. Cir. 1993)) (second alteration

in original).

The DIA maintains that the information withheld under

Exemption 7(E) consists of “details concerning the use of

polygraph technology to test the credibility of employees

involved in specific incidents in the federal workplace” the

release of which “could diminish the effectiveness of the

polygraph examination as an investigative tool by allowing the

general public to discern when DIA is likely to utilize this

tool.” DIA Decl. ¶ 37. Moreover, at least some of the

information withheld relates to “investigative techniques that

were used in an espionage investigation.” Id. ¶ 39.

More specifically, V-21, V-27, and V-29 are “training

materials, which are used to teach polygraph research,

standards, policies and procedures” and the withheld information

“could be used to circumvent the polygraph examination itself”

and potentially diminish “the effectiveness of the polygraph

examination as a critical law enforcement and national security

screening tool.” DIA Suppl. Decl. ¶ 12. V-70 and V-71, reports

37
of Dr. Barland, both include “a significant amount of sensitive

information concerning the use of polygraph countermeasures that

is unknown to the public.” Id. ¶ 13.

Plaintiff argues that this information is not subject to

Exemption 7(E) because the information does not pertain to the

use of polygraphs during a criminal investigation. See Opp. at

24. The Court finds that plaintiff’s proposed distinction

between criminal investigations and personnel-screening has no

legal basis. Indeed, Judge Wilkins rejected an identical

argument in Sack v. U.S. Dep’t of Defense, No. 12-cv-1754, 2013

WL 6640776, at *8 (D.D.C. Dec. 13, 2013). There, the Court

upheld Exemption 7(E) withholdings of polygraph-related

information because disclosure of information regarding the

DIA’s involvement in reviewing and testing other agencies’

polygraph programs would contribute to the circumvention of

polygraphs. Id. The Court rejected plaintiff’s distinction

“between polygraph examinations conducted as part of a criminal

investigation . . . and employment-related polygraph programs.”

Id. Similarly, in Morley v. CIA, the D.C. Circuit applied

Exemption 7(E) to information “revealing security clearance

procedures [that] could render those procedures vulnerable and

weaken their effectiveness at uncovering background information

on potential candidates.” 508 F.3d 1108, 1129 (D.C. Cir. 2007).

The Circuit found that “[b]ackground investigations conducted to

38
assess an applicant’s qualification . . . inherently relate to

law enforcement.” Id. at 1128–29. There is therefore no basis to

exclude information from coverage of Exemption 7(E) based solely

on the fact that it is used in personnel-screening activities.

Plaintiff argues alternatively that the information cannot

lead to circumvention of law enforcement techniques because it

is outdated and there is “no reason to presume that those

vulnerabilities [it identifies] have not been subsequently

corrected. Opp. at 25–26. The DIA declared that the research

discussed in the withholdings “remains an active part” of its

“efforts to detect and prevent the use of polygraph

countermeasures.” DIA Suppl. Decl. ¶ 13. Even if some of the

findings have been used to improve polygraph practices, “harm

would be caused to the overall process were it to be disclosed

precisely which . . . vulnerabilities have been suitably

addressed and which remain a critical task.” Id. ¶ 14. These

statements are sufficient to meet the agency’s burden of showing

that release of the information could lead to circumvention of

current law-enforcement techniques.

D. The DODIG’s Withholdings (Count Twelve).

Plaintiff’s sole challenge to the DODIG’s withholdings asserts

that it invoked Exemption 7(E) in a conclusory manner and should

be “require[d] . . . to supply actual particularized evidence.”

Opp. at 27. The DODIG withheld portions of Documents IG-1 and

39
IG-2, and all of Documents IG-3 and IG-4. See DODIG Vaughn

Index, ECF No. 14-12 at 2-3. Three of the four documents—all but

IG-3—are identified as having been authored by the Defense

Criminal Investigative Service, id., an arm of the DODIG that

utilizes polygraphs in its investigations. See Declaration of

Jeanne Miller (“DODIG Decl.”), ECF No. 14-11 ¶¶ 4(a), 47. The

titles of all four documents shed further light on their

relation to DODIG’s investigative functions. See DODIG Vaughn

Index, ECF No. 14-12 at 2-3 (IG-1 “Psychophysiological Detection

of Deception (PDD) Examinations”; IG-2 “Pyschophysiological

Detection of Deception Program (PDD) Operational Manual”; IG-3

“Utilization of Polygraph in Criminal Intelligence Operations”;

IG-4 “DCIS Form PDD4-DCIS Polygraph Testing Techniques.”).

The Vaughn index also states that each withholding was done

because the information “would disclose investigative techniques

and procedures, specifically, polygraph techniques used by

DCIS.” Id. Finally, in its declaration, the DODIG asserts that

“[i]nformation contained in [the withheld documents], which is

not generally known to the public, is designed solely to guide

DCIS personnel in the use of polygraphs in support of

investigations” and that “[t]he redacted material identifies

specific applications of techniques and procedures used in

polygraph matters and disclosure could enable circumvention of

[the] polygraph test by others.” DODIG Decl. ¶ 47. Moreover,

40
DODIG states, “[p]ublic release of that information could

possibly benefit those attempting to reduce the effectiveness of

the polygraph or violate the law and avoid detection.” Id. This

description meets the agency’s burden by showing that the

withholdings protect information the release of which could lead

to circumvention of the criminal-investigation activities of the

Defense Criminal Investigative Service.

E. The FBI’s Withholdings (Count Fourteen).

Plaintiff’s sole challenge to the FBI’s withholdings relates

to a single Exemption 5 withholding. The FBI released that

information to plaintiff after learning that it “was actually

released by FBI in response to another of Sack’s requests.” Opp.

at 27 (emphasis omitted); see Second Declaration of David M.

Hardy, ECF No. 27-3 ¶ 5. Because plaintiff does not challenge

any other withholdings, this claim is moot.18

F. Segregability.

18
Plaintiff’s request that the Court “issue a written finding
that the circumstances surrounding the withholding raise
questions whether agency personnel acted arbitrarily or
capriciously with respect to the withholding,” Opp. at 28, is
DENIED. For one, the Court has neither “order[ed] the production
of any agency records” in connection with this dispute, nor
“assesse[d] against the United States reasonable attorney fees
and other litigation costs,” 5 U.S.C. § 552(a)(4)(F)(i), both of
which are necessary prerequisites to the relief plaintiff seeks.
See Landmark Legal Found. v. EPA, 959 F. Supp. 2d 175, 184 n.8
(D.D.C. 2013). Moreover, plaintiff has not demonstrated that the
FBI’s withholding was arbitrary or capricious.

41
 Before granting summary judgment, the Court must determine

whether “[a]ny reasonably segregable portion of a record” can

“be provided to any person requesting such record after deletion

of the portions which are exempt.” 5 U.S.C. § 552(b). “So

important is this requirement that ‘[b]efore approving the

application of a FOIA exemption, the district court must make

specific findings of segregability regarding the documents to be

withheld.” Elec. Frontier Found. v. U.S. Dep't of Justice, 826

F. Supp. 2d 157, 173 (D.D.C. 2011) (quoting Sussman v. U.S.

Marshals Serv., 494 F.3d 1106, 1116 (D.C. Cir. 2007)) (emphasis

in original). The Court, in fact, has “an affirmative duty to

consider the segregability issue sua sponte.” Juarez v. Dep’t of

Justice, 518 F.3d 54, 60 (D.C. Cir. 2008) (quotation marks

omitted).

In this Circuit, “non-exempt portions of a document must be

disclosed unless they are inextricably intertwined with exempt

portions.” Mead Data Cent., Inc. v. U.S. Dep't of the Air Force,

566 F.2d 242, 260 (D.C. Cir. 1977). The agency must “‘describe

what proportion of the information in the documents,’ if any,

‘is non-exempt and how that material is dispersed through the

documents.’” Elec. Frontier Found., 826 F. Supp. 2d at 174

(quoting Mead Data, 566 F.2d at 261) (alterations omitted). Once

it does so, the agency is “entitled to a presumption that it

complied with the obligation to disclose reasonably segregable

42
material.” Hodge v. FBI, 703 F.3d 575, 582 (D.C. Cir. 2013)

(quotations marks and alterations omitted). This presumption

“must be overcome by some ‘quantum of evidence’ by the

requester.” Judicial Watch, Inc. v. U.S. Dep’t of Justice, No.

12-1350, 2014 WL 794220, at *12 (D.D.C. Feb. 28, 2014) (quoting

Sussman, 494 F.3d at 1117). The Court therefore must analyze the

evidence of non-segregability presented by the DIA and DODIG.19

The DIA declaration asserts:

I have carefully reviewed Attorney General Holder’s
memo . . . which encourages agencies to make
discretionary disclosures and directs agencies to
segregate and release nonexempt information. The
documents were carefully reviewed for reasonably
segregable information. I have determined that there
is no reasonably segregable information that can be
released to the plaintiff.

DIA Decl. ¶ 40. The declaration confirms that the agency

conducted a careful review. The partial withholdings from

documents V-21, V-27, V-29, and V-30 are described in sufficient

detail to indicate that the agency withheld information directly

related to the reason for invoking an exemption. See DIA Suppl.

Decl. ¶¶ 4–5, 7–8, 12.

The DIA’s withholding in full of V-70 and V-71 was justified

by “affidavits that show with reasonable specificity why

documents withheld pursuant to a valid exemption cannot be

19
Because the Court upholds only some of the CIA’s withholdings
at this time, and it is not clear what information was withheld
solely pursuant to the CIA Act, the Court is currently unable to
conduct a segregability analysis as to the CIA’s withholdings.

43
further segregated.” Juarez, 518 F.3d at 61. The DIA determined

that V-70 and V-71 “each contain[] a significant amount of

sensitive information concerning the use of polygraph

countermeasures that is unknown to the public” and “[t]he whole

body of research discussed in documents V-70 and V-71 remains an

active part of the [agency’s] efforts to detect and prevent the

use of polygraph countermeasures.” DIA Suppl. Decl. ¶ 13. The

DIA also concluded that, even if some of the vulnerabilities

identified in the articles have been rectified, “harm would be

caused to the overall process were it to be disclosed precisely

which potential[] vulnerabilities have been suitably addressed

and which remain a critical risk.” Id. ¶ 14. For this reason,

“it is . . . not possible to segregate certain information from

either of these two articles for release to plaintiff.” Id.

The DODIG declaration states:

I have carefully reviewed Attorney General Holder’s
memo . . . which encourages agencies to make
discretionary disclosures and directs agencies to
segregate and release nonexempt information. The
documents were carefully reviewed for reasonably
segregable information. I have determined that there
is no additional reasonably segregable information
that can be released to the Plaintiff.

DODIG Decl. ¶ 48. This statement, combined with the DODIG

declaration’s description of the information redacted from the

partially withheld documents, IG-1 and IG-2, is sufficient. See

id. ¶ 47. The DODIG did not, however, describe “with reasonable

44
specificity” why IG-3 and IG-4 were withheld in full. It may be

that those documents contain information withheld under

Exemption 7(E)—or under other exemptions that plaintiff has

elected not to challenge—that is dispersed such that the

documents must be withheld in full, but DODIG must “show with

reasonable specificity why” this is the case. See Juarez, 518

F.3d at 61 (emphasis added).

IV. PLAINTIFF’S MOTION TO RESCIND

Also before the Court is plaintiff’s motion to rescind the

stipulated dismissal of Count Fifteen of her Complaint. That

Count challenged the DOJ Office of Legal Counsel’s (“OLC”)

response to a FOIA request plaintiff submitted “for all records

relating to polygraphs.” Compl. ¶ 84. Plaintiff claims that she

agreed to the stipulated dismissal of Count Fifteen because OLC

assured her, through a draft Vaughn index, that it would

withhold six documents on the basis of the attorney-client and

deliberative-process privileges. See Mot. to Rescind, ECF No. 30

at 1. She claims that OLC represented that the documents were

communications to other agencies and that it had consulted with

each agency before withholding the document. Id. at 2.

Plaintiff asserts that her counsel found one of the documents,

an OLC opinion from 1967, publicly available through the CIA

Records Search Tool. See id. Plaintiff’s counsel brought this to

the attention of defendants’ counsel, who confirmed with OLC

45
that it had consulted the appropriate agencies in determining

what to withhold. See id. OLC, however, refused to provide

plaintiff the level of detail about these consultations that she

desired. See id. at 2–3. Accordingly, plaintiff moved to rescind

the stipulated dismissal of Count Fifteen.

Plaintiff offers no legal basis for her request. Instead, she

argues the merits of OLC’s withholding, noting that the

privileges claimed in the OLC’s draft Vaughn index may be waived

if published by OLC’s client. Id. at 3. According to plaintiff,

OLC’s failure to learn of the CIA’s publication of the 1967 memo

demonstrates that OLC’s consultations regarding the other five

documents cannot be trusted. Id. at 4.

The Court reads plaintiff’s motion as a request under Federal

Rule of Civil Procedure 60(b), which provides:

On motion and just terms, the court may relieve a
party or its legal representative from a final
judgment, order, or proceeding for the following
reasons: (1) mistake, inadvertence, surprise, or
excusable neglect; (2) newly discovered evidence that,
with reasonable diligence, could not have been
discovered in time to move for a new trial under Rule
59(b); (3) fraud . . . misrepresentation, or
misconduct by an opposing party; (4) the judgment is
void; (5) the judgment has been satisfied, released or
discharged; it is based on an earlier judgment that
has been reversed or vacated; or applying it
prospectively is no longer equitable; or (6) any other
reason that justifies relief.

The D.C. Circuit has held that voluntary dismissals under Rule

41(a), like the parties’ Joint Stipulation, may be subject to

46
Rule 60(b) motions. See Randall v. Merrill Lynch, 820 F.2d 1317,

1320 (D.C. Cir. 1987).

Plaintiff’s failure to provide a legal basis for her request

complicates matters, but the Court finds that her allegation of

“a misrepresentation by OLC,” Mot. to Rescind, ECF No. 30 at 1,

could fall under Rule 60(b)(3), which provides relief for “fraud

. . . misrepresentation, or misconduct by an opposing party.”20

To obtain relief under this provision, “the burden of proof of

fraud is on the moving party and . . . fraud must be established

by clear and convincing evidence.” 11 Charles Alan Wright &

Arthur R. Miller, Federal Practice and Procedure § 2860 (3d ed.

2014); see also Tembec, Inc. v. United States, No. 5-2345, 2007

WL 1169346, at *4 (D.D.C. April 19, 2007) (movant “must

establish fraud or misconduct, and resulting actual prejudice,

by clear and convincing evidence”).

20
Plaintiff does not appear eligible for relief under any other
subsection of Rule 60(b). Her voluntary entrance into the
stipulation would preclude relief under Rule 60(b)(1). See 11
Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 2858 (3d ed. 2014) (“Voluntary action also may
prevent a party from seeking relief on the ground of mistake or
excusable neglect. This includes . . . deliberately adopted
stipulations, or voluntary dismissals, even when based on
erroneous facts.”). Subsections (b)(2), (b)(4), and (b)(5)
cannot provide relief because they address defects in or changed
circumstances regarding a prior Court judgment. Finally, Rule
60(b)(6) “should be only sparingly used and may not be employed
simply to rescue a litigant from strategic choices that later
turn out to be improvident.” Kramer v. Gates, 481 F.3d 788, 792
(D.C. Cir. 2007) (quotation marks omitted).

47
 Plaintiff cannot meet this bar. She establishes only that OLC

failed to learn that the CIA had previously released the 1967

Opinion. There is no evidence—much less clear and convincing

evidence—that this was anything but an oversight in connection

with negotiations regarding a far-ranging FOIA request. A minor

oversight, without evidence of affirmative misconduct, does not

support a finding of fraud. Compare Summers v. Howard Univ., 374

F.3d 1188, 1193 (D.C. Cir. 2004) (granting relief under Rule

60(b)(3) where “plaintiffs engaged in repeated, affirmative

efforts to keep [the relevant information] a secret from [the

defendant]” and “plaintiffs concede[d] that these acts were

intentional”). “There must be an end to litigation someday” and

plaintiff’s strategic decision to stipulate to the dismissal of

Count Fifteen was the kind of “free, calculated, deliberate

choice[ that is] not to be relieved from.” Ackermann v. United

States, 340 U.S. 193, 198 (1950).

V. CONCLUSION

For the foregoing reasons, the Court GRANTS IN PART AND DENIES

IN PART defendants’ motion for summary judgment and DENIES

plaintiff’s motion to reinstate Count Fifteen. An appropriate

Order accompanies this Memorandum Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan
United States District Judge
July 10, 2014

48