Henderson v. Office of the Director of National Intelligence

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

____________________________________
)
WILLIAM H. HENDERSON, )
)
Plaintiff, )
)
v. ) Civil Action No. 15-103 (RBW)
)
OFFICE OF THE DIRECTOR )
OF NATIONAL INTELLIGENCE, and )
OFFICE OF PERSONNEL )
MANAGEMENT, )
)
Defendants. )
____________________________________)

MEMORANDUM OPINION

William H. Henderson, the plaintiff in this civil matter, alleges that the defendants, the

Office of the Director of National Intelligence (“ODNI”) and the Office of Personnel

Management (“OPM”), violated the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552

(2012), by improperly withholding information subject to disclosure under the FOIA. Complaint

(“Compl.”) ¶¶ 20, 25. Pending before the Court is the Defendants’ Motion for Summary

Judgment (“Defs.’ Mot.”), which asserts that the information at issue was properly withheld

pursuant to 5 U.S.C. § 552(b)(7)(E) (“Exemption 7(E)”), Defendants’ Memorandum of Law in

Support of Their Motion for Summary Judgment (“Defs.’ Mem.”) at 1. After carefully

considering the parties’ submissions, the Court concludes for the reasons that follow that it must

grant summary judgment to the defendants. 1

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In addition to the filings already identified, the Court considered the following submissions in rendering its
decision: (1) the Defendants’ Statement of Material Facts Not in Dispute (“Defs.’ Facts”); (2) the Declaration of
Lisa M. Loss (“Loss Decl.”); (3) the Declaration of Brian Prioletti (“Prioletti Decl.”); (4) the plaintiff’s
(continued . . . )
 I. BACKGROUND

In December 2012, the OPM and the ODNI jointly issued a revised version of the Federal

Investigative Standards (“FIS”), which “provide the standards for all security and suitability

background investigations of individuals working for, or on behalf of, the executive branch or

who seek to perform work for, or on behalf of, the executive branch and individuals with access

to federally controlled facilities and information systems.” Defs.’ Facts ¶ 2; Pl.’s Facts ¶ 2.

“The FIS contain detailed procedures for conducting background investigations, including the

specific types of records to be gathered and types of sources to be contacted or interviewed.”

Defs.’ Facts ¶ 2; Pl.’s Facts ¶ 2. The sole appendix to the FIS, the Expandable Focused

Investigation Model (“EFI Model”), “sets forth the steps investigators are to pursue if derogatory

or discrepant information develops during the course of an investigation.” Defs.’ Facts ¶ 2; Pl.’s

Facts ¶ 2.

The plaintiff, who heads a “personnel security consulting firm,” Compl. ¶ 3, submitted

FOIA requests to the OPM and the ODNI in July 2013 seeking from each defendant the

disclosure of “the December 2012 version of the Federal Investigative Standards.” Defs.’ Facts

¶ 1; Pl.’s Facts ¶ 1. In September 2013, the OPM informed the plaintiff that it had determined

that the FIS and EFI Model would be withheld in full under Exemption 7(E) of the FOIA, and

the ODNI concurred with the OPM’s determination. Defs.’ Facts ¶ 5; Pl.’s Facts ¶ 5. In April

2014, after an administrative appeal of the defendants’ initial decision to withhold the requested

information, the OPM, with the ODNI’s concurrence, partially released portions of the FIS but

continued to withhold the EFI Model in its entirety. See Defs.’ Facts ¶¶ 7–8; Pl.’s Facts ¶¶ 7–8.

(continued . . . )
Memorandum in Opposition to [the] Defendants’ Motion for Summary Judgment (“Opp’n”); (4) the plaintiff’s
Response to [the] Defendants’ Statement of Material Facts Not in Dispute (“Pl.’s Facts”); and (5) the Defendants’
Reply in Support of Their Motion for Summary Judgment (“Reply”).

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The defendants relied on Exemption 6 of the FOIA, 5 U.S.C. § 552(b)(6), and Exemption 7(E) to

support the redactions to the FIS and withholding of the EFI Model. Defs.’ Facts ¶ 8; Pl.’s Facts

¶ 8.

That same month, the plaintiff lodged a second administrative appeal that challenged the

defendants’ reliance on Exemption 7(E) to withhold the requested information. Defs.’ Facts ¶ 9;

Pl.’s Facts ¶ 9. Several months after his second appeal, the plaintiff filed his complaint in this

Court seeking to compel the defendants to disclose the balance of the information he requested.

Defs.’ Facts ¶ 11; Pl.’s Facts ¶ 11. After the complaint was filed and answered, the defendants

provided a less redacted version of the FIS in May 2015, but continued to withhold the EFI

Model in its entirety. Defs.’ Facts ¶¶ 11–12; Pl.’s Facts ¶¶ 11–12; see also Defs.’ Mem., Exhibit

(“Ex.”) C (redacted version of FIS disclosed to the plaintiff in May 2015). The defendants

continued to rely on Exemption 7(E) to justify their redactions from the FIS and their continued

withholding of the entire EFI Model. Defs.’ Facts ¶ 12; Pl.’s Facts ¶ 12. Then, in July 2015, the

defendants provided yet another redacted version of the FIS, which “removed certain redactions

from the copy produced to [the p]laintiff on May 29, 2015, in order to be consistent with the

copy provided to [the p]laintiff on April 1, 2014.” Defs.’ Facts ¶ 14; Pl.’s Facts ¶ 14. The

defendants continue to justify their redactions to the FIS and withholding of the EFI Model based

on Exemption 7(E). See Defs.’ Facts ¶ 15; Pl.’s Facts ¶ 15; see also Defs.’ Mem., Ex. E

(redacted version of FIS disclosed to the plaintiff in July 2015).

II. STANDARD OF REVIEW

Courts will grant a motion for summary judgment “if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(a). In resolving a motion for summary judgment, all reasonable

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inferences that may be gleaned from the facts before the court must be construed in favor of the

non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The moving

party bears the burden of demonstrating the absence of a genuine issue of material fact, Celotex

Corp. v. Catrett, 477 U.S. 317, 323 (1986), and may do so by “citing to particular parts of

materials in the record, including . . . affidavits or declarations,” Fed. R. Civ. P. 56(c)(1)(A).

Factual assertions in the moving party’s affidavits or declarations may be accepted as true unless

the opposing party submits affidavits, declarations, or documentary evidence to the contrary.

Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992).

Courts review an agency’s response to a FOIA request de novo, 5 U.S.C. § 552(a)(4)(B),

and “FOIA cases typically and appropriately are decided on motions for summary judgment,”

ViroPharma, Inc. v. Dep’t of Health & Human Servs., 839 F. Supp. 2d 184, 189 (D.D.C. 2012)

(citations omitted). In a FOIA action to compel production of agency records, the agency “is

entitled to summary judgment if no material facts are in dispute and if it demonstrates ‘that each

document that falls within the class requested has either been produced . . . or is wholly exempt

from the [FOIA’s] inspection requirements.’” Students Against Genocide v. U.S. Dep’t of State,

257 F.3d 828, 833 (D.C. Cir. 2001) (quoting Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir.

1978)). And “even if [the] agency establishes an exemption, it must nonetheless disclose all

reasonably segregable, nonexempt portions of the requested record(s)” to comply with its

requirements under the FOIA. Roth v. U.S. Dep’t of Justice, 642 F.3d 1161, 1167 (D.C. Cir.

2011) (quoting Assassination Archives & Research Ctr. v. CIA, 334 F.3d 55, 57 (D.C. Cir.

2003)).

Summary judgment in a FOIA case may be based solely on information provided in an

agency’s supporting affidavits or declarations if they are “relatively detailed and non-

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conclusory.” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (quoting

Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981)). The affidavits or

declarations should “describe the documents and the justifications for nondisclosure with

reasonably specific detail, demonstrate that the information withheld logically falls within the

claimed exemption, and [ ] not [be] controverted by either contrary evidence in the record [or] by

evidence of agency bad faith.” Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir.

1981). “To successfully challenge an agency’s showing that it complied with the FOIA, the

plaintiff must come forward with ‘specific facts’ demonstrating that there is a genuine issue with

respect to whether the agency has improperly withheld extant agency records.” Span v. U.S.

Dep’t of Justice, 696 F. Supp. 2d 113, 119 (D.D.C. 2010) (quoting U.S. Dep’t of Justice v. Tax

Analysts, 492 U.S. 136, 142 (1989)).

III. ANALYSIS

A. The “Law Enforcement Purposes” Threshold Requirement Under 5 U.S.C.
§ 552(b)(7)

Pursuant to Exemption 7(E), an agency may withhold:

[R]ecords or information compiled for law enforcement purposes, but only to the
extent that the production of such law enforcement records or information . . . would
disclose techniques and procedures for law enforcement investigations or
prosecutions, or would disclose guidelines 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) (emphasis added).

The plaintiff challenges the applicability of Exemption 7(E) to records compiled for civil

law enforcement purposes, arguing that the District of Columbia Circuit’s decision in Morley v.

v. CIA, 508 F.3d 1108 (D.C. Cir. 2007), which the plaintiff concedes controls the outcome of

this case, was improperly based on the Circuit’s decades-old recognition in Pratt v. Webster, 673

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F.2d 408, 420 n.32 (D.C. Cir. 1982), that Exemption 7(E) extends to records compiled for both

civil and criminal law enforcement purposes. See Opp’n at 4–5. According to the plaintiff,

certain post-Pratt amendments to Exemption 7(E) undermine this Circuit’s continued application

of that exemption to civil investigations. See id. at 5 (arguing that this Circuit has not had “the

opportunity to consider whether the Pratt justification for extending FOIA Exemption 7(E) to

civil investigations was still valid in light of those amendments to [the] FOIA”).

The Court disagrees with the plaintiff’s contention that Exemption 7(E) should be limited

in scope to records compiled for criminal purposes only. As this Circuit has recognized, “[t]he

term ‘law enforcement’ in Exemption 7 refers to the act of enforcing the law, both civil and

criminal.” Pub. Emps. for Envtl. Responsibility v. U.S. Section, Int’l Boundary & Water

Comm’n, 740 F.3d 195, 203 (D.C. Cir. 2014) (citing Tax Analysts v. Internal Revenue Serv.,

294 F.3d 71, 77 (D.C. Cir. 2002)). If Congress intended to limit Exemption 7(E)’s application to

records compiled for criminal purposes only, it certainly knew how to do so. See, e.g., 5 U.S.C.

§ 552(b)(7)(D) (referring to records “compiled by a criminal law enforcement authority in the

course of a criminal investigation”). In 1986, Congress broadened the exemption by making it

clear that Exemption 7 applies not merely to documents compiled in the course of an

investigation, see 132 Cong. Rec. H9466 (daily ed. Oct. 8, 1986) (1986 amendments to the FOIA

“would broaden the scope of the exemption to include ‘records or information compiled for law

enforcement purposes,’ regardless of whether they may be investigatory or noninvestigatory”),

but also to techniques, procedures, or guidelines compiled for a law enforcement purpose,

regardless of whether they are investigative or non-investigative, see id. (addition of “guidelines”

to Exemption 7(E), “like the deletion of ‘investigatory’ from the exemption’s threshold language,

is intended to make clear that ‘techniques and procedures for law enforcement investigations and

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prosecutions’ can be protected, regardless of whether they are ‘investigative’ or ‘non-

investigative’”). The Court is unaware of any indication that, after Pratt’s recognition of the

applicability of Exemption 7 to records compiled for both civil and criminal law enforcement

purposes, Congress acted to reject this understanding of Exemption 7’s scope.

Accordingly, in Mittleman v. Office of Pers. Mgmt., this Circuit applied Exemption 7 to

records compiled for the purpose of conducting background investigations of individuals seeking

employment or contracts with the federal government, concluding that records or information

pertaining to background investigations meet the exemption’s threshold requirement that the

records be “compiled for law enforcement purposes.” 76 F.3d 1240, 1243 (D.C. Cir. 1996) (per

curiam) (recognizing that “[e]nforcement of the law fairly includes not merely the detection and

punishment of violations of law but their prevention” and holding that records of the OPM’s

investigation of the plaintiff’s background were “compiled for law enforcement purposes” under

5 U.S.C. § 552(b)(7) (alteration in original) (quoting Miller v. United States, 630 F. Supp. 347,

349 (E.D.N.Y. 1986))). And, in Morley, the Circuit reaffirmed that “[b]ackground investigations

conducted to assess an applicant’s qualification, such as the [Central Intelligence Agency’s]

‘clearance and investigatory processes,’ inherently relate to law enforcement.” 508 F.3d at 1129.

The FIS and EFI Model at issue here “were compiled . . . to provide consistent

background investigation standards for investigations of individuals working for, or on behalf of,

the executive branch or who seek to perform work for, or on behalf of, the executive branch, as

well as for individuals who would access federally controlled facilities and information

systems.” Loss Decl. ¶ 14; see also Prioletti Decl. ¶ 19 (“The FIS are guidelines that govern

national security and suitability investigations for all individuals working for or on behalf of the

Executive Branch of the Federal Government.”). Under this Circuit’s precedents in Morley and

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Mittleman, the records withheld by the defendant here were undoubtedly compiled for law

enforcement purposes. And, as the plaintiff concedes this to be the case, see Opp’n at 3, 4

(conceding that “the binding case law from the D.C. Circuit is memorialized in” Morley and

recognizing “the limits of this Court’s authority to rule contrary to binding case law”), the

plaintiff’s arguments with regard to the threshold requirement of Exemption 7 must fail.

Even had the plaintiff not conceded this point, the Court would nevertheless conclude

that the defendant has established that the FIS and EFI Model meet Exemption 7’s threshold

requirement. “To show that . . . documents were ‘compiled for law enforcement purposes,’ the

[agency] need only ‘establish a rational nexus between the investigation and one of the agencies’

law enforcement duties and a connection between an individual or incident and a possible

security risk or violation of federal law.’” Blackwell v. FBI, 646 F.3d 37, 40 (D.C. Cir. 2011)

(quoting Campbell v. Dep’t of Justice, 164 F.3d 20, 32 (D.C. Cir. 1998)). Here, the FIS and EFI

Model set forth the process used by the defendants in their efforts to prevent bad actors from

obtaining access to sensitive government information, technologies, and facilities. See Loss

Decl. ¶ 21 (“The OPM’s personnel security and suitability investigations . . . ensure that

applicants and other persons subject to investigation . . . have not broken the law or engaged in

other conduct making them unsuitable for appointment or ineligible for a clearance . . . .”);

Prioletti Decl. ¶¶ 2, 28–29 (explaining the ODNI’s responsibility over “policies and procedures

governing investigations and adjudications for eligibility for access to classified information and

eligibility to hold a sensitive position” and stating that release of the withheld information from

the FIS and the EFI Model “would jeopardize the [g]overnment’s ability to validate [an]

individual’s eligibility for a security clearance, which could result in the unauthorized disclosure

of classified information by individuals unsuitable for national security clearances”). The

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defendants further state that the information withheld from the FIS, and the EFI Model, which

expands on the FIS, constitutes information that sheds light on the defendants’ process for

conducting background investigations, and that the release of this information “could cause an

individual, foreign intelligence organization, or terrorist organization seeking to circumvent the

investigation[] and obtain a favorable adjudication for a particular individual” to supply false

data that would be difficult to detect or to omit information that would evade further scrutiny.

See generally Loss Decl. ¶¶ 25–36; Prioletti Decl. ¶¶ 26–32. The defendants have amply

demonstrated, as set forth in Blackwell, 646 F.3d at 40, a “rational nexus” between the

background investigation techniques and each agency’s responsibility to prevent potential bad

actors from obtaining security clearances and access to government technologies and facilities,

and a “connection” between potential bad actors and the risk of a breach of security. The

threshold question now answered, the Court turns to whether the defendants have carried their

burden of demonstrating that the withheld records or information rise to the level of the harm

articulated in Exemption 7(E).

B. Application of Exemption 7(E)

Exemption 7(E) protects from disclosure information contained in law enforcement

records that “would disclose techniques and procedures for law enforcement investigations or

prosecutions, or would disclose guidelines 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). “Exemption 7(E) sets a relatively low bar for the agency to justify withholding:

‘Rather than requiring a highly specific burden of showing how the law will be circumvented,

exemption (7)(E) only requires that the [agency] demonstrate logically how the release of the

requested information might create a risk of circumvention of the law.’” Blackwell, 646 F.3d at

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42 (alteration in original) (quoting Mayer Brown LLP v. Internal Revenue Serv., 562 F.3d 1190,

1193 (D.C. Cir. 2009)). Exemption 7(E)

looks not just for circumvention of the law, but for a risk of circumvention; not just
for an actual or certain risk of circumvention, but for an expected risk; not just for
an undeniably or universally expected risk, but for a reasonably expected risk; and
not just for certitude of a reasonably expected risk, but for the chance of a
reasonably expected risk.

Mayer Brown, 562 F.3d at 1193.

The Loss and Prioletti Declarations provide a lengthy explanation of the contents of the

FIS and EFI Model and the risk of harm should the information withheld from these records be

disclosed. See generally Loss Decl. ¶¶ 14–36; Prioletti Decl. ¶¶ 19–32. The “FIS were designed

to supersede all previously issued investigative standards and take into consideration the

counterintelligence, security, and suitability concerns” of the federal government. Loss Decl.

¶ 15. Whereas pre-2012 “standards and guidance were broad and afforded agencies significant

discretion in interpretation,” the 2012 FIS “were designed to promote reciprocity to the extent

possible and therefore required more granular instruction for every tier of investigation.” Id.

Consistent with this objective, the FIS detail “the specific types of records to be gathered and the

types of sources to be contacted or interviewed,” “specific guidance with respect to how far back

in time certain types of records should be searched[,] and whether additional efforts are required

should outreach to sources be unsuccessful.” Id. ¶ 16. The FIS thus “provide insight into the

varying levels of effort, and the types of information required, to complete a satisfactory

investigation,” id., and the EFI Model “provides insight into what types of information would

generate additional scrutiny during an investigation[,] and what particular investigative steps

would be taken when the need for additional scrutiny is triggered,” id. ¶ 17. “Complete access to

the FIS (and EFI Model) would therefore provide direction to a person attempting to manipulate

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the investigative process, by providing insight into the likelihood of detection were he or she to

conceal, misrepresent, or falsify certain required information.” Id. ¶ 19. “The very purpose of

the [FIS] and EFI Model—to ensure that unsuitable individuals do not gain access to sensitive

government positions, facilities, technologies, clearances, or information—would be defeated if

they were disclosed to the public.” Id. Consistent with the defendants’ concerns regarding the

sensitivity of the information in the revised FIS and EFI Model, the ODNI designated them as

“[For Official Use Only] . . . to permit limited distribution to [intelligence community] security

contractors who perform background security investigations on behalf of the [g]overnment and

are required to sign a nondisclosure agreement.” Prioletti Decl. ¶ 25. The Court finds the

defendants’ explanation more than sufficient to establish “the chance of a reasonably expected

risk” should the withheld information be disclosed. Mayer Brown, 562 F.3d at 1193.

As previously noted, the plaintiff expressly concedes that the outcome of this case is

settled by Morley, Opp’n at 3, which unequivocally stated that “[i]t is self-evident that

information revealing security clearance procedures could render those procedures vulnerable

and weaken their effectiveness at uncovering background information on potential candidates,”

508 F.3d at 1128–29. And, through the detailed description contained in the Loss and Prioletti

Declarations, the defendants have demonstrated “logically how the release of the requested

information might create a risk of circumvention of the law.” Blackwell, 646 F.3d at 42 (quoting

Mayer Brown, 562 F.3d at 1193). The Court therefore concludes that the defendants properly

withheld information from the FIS and the EFI Model pursuant to Exemption 7(E).

C. Segregability

Under the FOIA, “[a]ny reasonably segregable portion of a record shall be provided to

any person requesting such record after deletion of the portions which are exempt . . . .” 5

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U.S.C. § 552(b); Roth, 642 F.3d at 1167 (“even if [the] agency establishes an exemption, it must

nonetheless disclose all reasonably segregable, nonexempt portions of the requested record(s)”).

Thus, “it has long been the rule in this Circuit that non-exempt portions of a document must be

disclosed unless they are inextricably intertwined with exempt portions.” Wilderness Soc’y v.

U.S. Dep’t of Interior, 344 F. Supp. 2d 1, 18 (D.D.C. 2004) (Walton, J.) (quoting Mead Data

Cent., Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977)). The agency must

provide “a detailed justification and not just conclusory statements to demonstrate that all

reasonably segregable information has been released.” Valfells v. CIA, 717 F. Supp. 2d 110,

120 (D.D.C. 2010). Nevertheless, “[a]gencies are entitled to a presumption that they complied

with the obligation to disclose reasonably segregable material,” which must be overcome by

some “quantum of evidence” by the requester. Sussman v. U.S. Marshals Serv., 494 F.3d 1106,

1117 (D.C. Cir. 2007).

The defendants state that they conducted a line-by-line review of the FIS on two

occasions and released portions of the FIS deemed to be non-exempt. Prioletti Decl. ¶ 33; see

also Defs.’ Mem., Exs. C & E (redacted versions of the FIS disclosed to the plaintiff in May and

July 2015); Defs.’ Facts ¶ 12 (describing May 2015 release of documents to the plaintiff).

Additionally, the defendants explain that the 29-page EFI Model, the sole appendix to the FIS

that expands on the guidelines contained in the FIS, is in the form of a chart describing “red

flags” that trigger further investigation and setting forth those advanced investigatory steps. See

Prioletti Decl. ¶¶ 31, 34. “The chart contains detailed instructions and criteria . . . that are so

prevalent throughout the document that potentially non-exempt words or phrases are inextricably

intertwined with exempt material throughout the documents,” which would “result in the release

of an unintelligible document.” Id. ¶ 34. The defendants also state that “information in the EFI

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Model that could potentially be non-exempt if released alone should nonetheless be withheld”

because this information, “taking into consideration the layout of the chart,” could allow

potential bad actors “to surmise the trigger points and expanded procedures” detailed in the EFI

Model. Id.

Based upon these representations, the Court finds that the defendants have satisfied their

segregability obligation under the FOIA. See, e.g., Blackwell, 680 F. Supp. 2d at 96 (finding the

agency’s segregability requirement satisfied where the agency’s declaration explained that

“documents were processed to achieve maximum disclosure” and “further disclosure or attempt

to describe information withheld would identify information protected by one of the FOIA

exemptions”); see also Vaughn v. Rosen, 484 F.2d 820, 827 (D.C. Cir. 1973) (agency must state

“in detail which portions of the document are disclosable and which are allegedly exempt”).

And, although the “quantum of evidence” required to rebut the presumption that the defendants

“complied with the obligation to disclose reasonably segregable material” is not clear, Sussman,

494 F.3d at 1117 (citations omitted), the Court is not persuaded by the plaintiff’s contention that,

merely because the defendants released additional information from the FIS after their initial

decision to withhold the entire document, Opp’n at 9–10, the defendants’ representations

regarding segregability at this juncture are insufficient, see Hodge v. FBI, 703 F.3d 575, 582

(D.C. Cir. 2013) (agency’s subsequent disclosure of previously withheld information did not

demonstrate that agency was improperly withholding information). The Court therefore

concludes that the defendants have disclosed all reasonably segregable information.

D. In Camera Review

The plaintiff asserts that the Court should conduct an in camera review of the withheld

portions of the FIS and EFI Model to determine whether the defendants properly withheld these

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materials under Exemption 7(E). Opp’n at 5–7. The District of Columbia Circuit “has

interpreted [the FOIA] to give district court judges broad discretion in determining whether in

camera review is appropriate.” Armstrong v. Exec. Office of the President, 97 F.3d 575, 577–78

(D.C. Cir. 1996) (citations omitted); see also 5 U.S.C. § 552(a)(4)(B) (providing that the district

court “may examine the contents of such agency records in camera to determine whether such

records or any part thereof shall be withheld . . . .” (emphasis added)). Thus, “[if] a district court

believes that in camera inspection is unnecessary ‘to make a responsible de novo determination

on the claims of exemption, it acts within its broad discretion by declining to conduct such a

review.’” Juarez v. Dep’t of Justice, 518 F.3d 54, 60 (D.C. Cir. 2008) (quoting Carter v. Dep’t

of Commerce, 830 F.2d 388, 392 (D.C. Cir. 1987)). Moreover, this Circuit has also stated that

“in camera review is a ‘last resort’ to be used only when the affidavits are insufficient for a

responsible de novo decision.” Hayden v. Nat’l Sec. Agency, 608 F.2d 1381, 1387 (D.C. Cir.

1979) (citing Weissman v. CIA, 565 F.2d 692, 697 (D.C. Cir. 1977)).

Here, as the Court has already found, the Loss and Prioletti Declarations explain in

sufficient detail the contents of the information withheld under Exemption 7(E) and the reasons

why disclosure would risk circumvention of the law. See Loss Decl. ¶¶ 25–33 (describing the

contents of, and setting forth the reasons for withholding, specific subsections of the FIS and the

EFI Model); Prioletti Decl. ¶¶ 29–32 (same). The defendants also provided the redacted FIS that

were disclosed to the plaintiff, Defs.’ Mem., Exs. C & E, and the Court is able to compare each

of the explanations made in the defendants’ declarations with the specific subparagraph withheld

such that the withholdings can be assessed in context. Based on its review, the Court is able to

conclude that the defendants’ declarations “sufficiently describe the documents and set forth

proper reasons for invoking” Exemption 7(E). Juarez, 518 F.3d at 60.

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 In addition to the sufficiency of the defendants’ declarations, “if there is no evidence in

the record of agency bad faith, then summary judgment is appropriate without in camera review

of the documents.” Hayden, 608 F.2d at 1387. The plaintiff’s chief complaint in this regard is

that the defendants disclosed additional information from the FIS after their initial decision to

withhold the document in its entirety, and that some of their subsequent disclosures contained

inconsistent redactions. See Opp’n at 6–8. The Court does not discern from these events any

evidence of bad faith on the part of the defendants, nor has the plaintiff convincingly raised any

such concern. Contrary to demonstrating bad faith, the Court views the defendants’ subsequent

productions of additional information as an effort to balance their disclosure obligations under

the FOIA, by disclosing as much information as possible, with the risks identified in their

declarations. For these reasons, the Court, in its discretion, denies the plaintiff’s request for an in

camera review of the records or information withheld by the defendants.

CONCLUSION

For the foregoing reasons, the Court concludes that the defendants submitted sufficient

factual detail to establish that they properly withheld information under FOIA Exemption 7(E)

and released all reasonably segregable information not otherwise exempt from disclosure.

Accordingly, the Court must grant the defendants’ motion for summary judgment. 2

SO ORDERED this 25th day of February, 2016.

REGGIE B. WALTON
United States District Judge

2
The Court will contemporaneously issue an Order consistent with this Memorandum Opinion.

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