                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA

 KATHRYN SACK,

                        Plaintiff,

                        v.                         Case No. 1:12-cv-01755 (CRC)

 DEPARTMENT OF JUSTICE,

                        Defendant.

                                     ORDER AND OPINION

       In its April 23, 2015 Order [ECF No. 43], this Court granted in part and denied in part

Defendant Department of Justice’s (“DOJ”) renewed Motion for Summary Judgment, and

directed the FBI to conduct additional searches for documents responsive to Plaintiff Kathryn

Sack’s FOIA request for records related to the agency’s polygraph program. The Court also

reserved ruling on the FBI’s invocation of FOIA Exemptions (b)(2), (b)(5), and (b)(7)(E) to

withhold documents from production to Plaintiff. Following that Order, DOJ submitted a

supplemental memorandum in support of its Motion for Summary Judgment on June 22, 2015,

noting that it had conducted the searches and released to Plaintiff the documents they yielded.

Not having received a response from Plaintiff after six weeks, the Court issued an Order on

August 7, 2015, directing Plaintiff to show cause why the remaining claims against DOJ should

not be dismissed. In Plaintiff’s response to that Order, she explained that she does not oppose

DOJ’s arguments set forth in its supplemental memorandum and that she is “satisfied for the

most part” with the FBI’s supplemental search and release of documents. However, she

maintains her previous objections to the FBI’s reliance on the three exemptions. Because the

FBI properly invoked those exemptions, and because Plaintiff sets forth no other objections, the

Court will grant what remains of DOJ’s renewed motion for summary judgment.
       I.      FBI’s Invocation of FOIA Exemption (b)(2)

       FOIA Exemption (b)(2) provides that agencies responding to FOIA requests need not

make available to the public information “related solely to the internal personnel rules and

practices of an agency.” 5 U.S.C. § 552(b)(2). The FBI invoked this exemption to withhold

documents “relating to the selection process for FBI Polygraph Examiners.” Def.’s Suppl. Mem.

Supp. Mot. Summ. J. 7. The agency contends that the information therein does not concern use

of polygraphs, Def.’s Reply Supp. Suppl. Mem. 9, and instead “pertains to administrative matters

of interest only to FBI employees,” Def.’s Suppl. Mem. Supp. Mot. Summ. J. 7. Plaintiff

counters that, in an earlier ruling, this Court concluded that the Bureau of Alcohol, Tobacco,

Firearms and Explosives could not invoke the same exemption to withhold documents

concerning how it uses polygraph techniques to screen job applicants, and that by the same

reasoning, the FBI cannot withhold “how it chooses the examiners responsible” for

implementing such polygraph techniques. Pl.’s Resp. Def.’s Suppl. Mem. 6–7.

       But an agency’s hiring practices are distinct from its use of certain technologies, even if

the hiring process at issue concerns potential operators of those technologies. “The key word” in

Exemption (b)(2) “is ‘personnel.’” Milner v. Dep’t of the Navy, 562 U.S. 562, 569 (2011). The

term “refers to human resources matters,” such as “the selection, placement, and training of

employees.” Id. (quoting Webster’s Third New International Dictionary 1687 (1966)) (internal

quotation mark omitted). In Milner, the Supreme Court distinguished between use of techniques

or implementation of agency policy by personnel on the one hand, and matters concerning hiring

of and benefits for personnel on the other. The Court rejected an attempt to shield under this

exemption documents of the Department of the Navy containing data that “assists Navy

personnel in storing munitions.” Id. at 578. The Court reasoned that the modifier “personnel”



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limits the scope of the exemption to information not just “for personnel,” but “about

personnel”—in other words, “that [which] relates to employee relations or human resources.” Id.

       Under Milner’s logic, documents concerning the use of certain technologies, such as

polygraph techniques, by personnel would not be covered by this exemption, as this Court

concluded in its previous Order. But documents relating to “the selection” or “placement” of

employees—even those whose job descriptions require that they use those technologies later

on—would be covered by Exemption (b)(2). Id. at 569. Accordingly, the Court will uphold the

FBI’s use of this exemption for these documents concerning the agency’s selection processes.

       II.     FBI’s Invocation of FOIA Exemption (b)(5)

       FOIA Exemption (b)(5) protects “inter-agency or intra-agency memorandums or letters

which would not be available by law to a party other than an agency in litigation with the

agency.” 5 U.S.C. § 552(b)(5). In other words, agencies may withhold, under this exemption,

documents that “satisfy two conditions: [their] source [is] a Government agency, and [they] fall

within the ambit of a privilege against discovery under judicial standards that would govern

litigation against the agency that holds [them].” Dep’t of the Interior v. Klamath Water Users

Protective Ass’n, 532 U.S. 1, 8 (2001). The FBI invoked this exemption to withhold a

“paragraph containing the recommendation of employees in the FBI’s Security Division to the

Director’s Office about the feasibility of hiring non-agent polygraph examiners” as protected by

the “deliberative process” privilege. Def.’s Suppl. Mem. Supp. Mot. Summ. J. 10.

       The deliberative process privilege “covers ‘documents reflecting advisory opinions,

recommendations, and deliberations comprising part of a process by which governmental

decisions and policies are formulated.’” Klamath Water Users, 532 U.S. at 8 (quoting NLRB v.

Sears, Roebuck & Co., 421 U.S. 132, 150 (1975)). Such documents must be “both ‘pre-



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decisional’ and ‘deliberative.’” Judicial Watch, Inc. v. U.S. Dep’t of the Treasury, 796 F. Supp.

2d 13, 25 (D.D.C. 2011) (quoting Judicial Watch, Inc. v. FDA, 449 F.3d 141, 151 (D.D.C.

2006)). The protection rests on the recognition “that officials will not communicate candidly

among themselves if each remark is a potential item of discovery and front page news, and its

object is to enhance ‘the quality of agency decisions,’ by protecting open and frank discussion

among those who make them within the Government.” Id. at 8–9 (citation omitted) (quoting

Sears, Roebuck, 421 U.S. at 151).

       The government argues that the recommendation “was not adopted or implemented by

the FBI,” and thus that it was pre-decisional and deliberative, and its disclosure would

“discourage candid discussion within the agency in the future.” Def.’s Suppl. Mem. Supp. Mot.

Summ. J. 10. Ms. Sack counters that the withheld paragraph does not reflect mere deliberation

as described by the FBI, but rather “states the official position of the entire FBI Polygraph

Program,” which renders it “post-decisional” with respect to that Program. Pl.’s Resp. Def.’s

Suppl. Mem. 7.

       The FBI is correct. The “deliberative process privilege is intended to protect ‘the

decision making processes of government agencies,’” not merely of agency departments

generating recommendations for agency directors. Judicial Watch, 796 F. Supp. 2d at 25

(emphasis added) (quoting Judicial Watch, Inc. v. Dep’t of Justice, 365 F.3d 1108, 1113 (D.C.

Cir. 2004)). A document is “pre-decisional if it was generated before agency policy was adopted

and deliberative if it ‘reflects the give and take of the consultative process.’” Id. (quoting

Judicial Watch, 449 F.3d at 151). Because the withheld paragraph was generated by an agency

department “before agency policy was adopted” by the FBI Director, and because it reflects an

exchange of ideas within the agency, in that its recommendation was not adopted, the FBI was



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justified in withholding this paragraph under Exemption (b)(5).

       III.   FBI’s Invocation of FOIA Exemption (b)(7)(E)

       FOIA Exemption (b)(7)(E) protects

       records or information compiled for law enforcement purposes, but only to the
       extent that the production of such . . . records or information . . . would disclose
       techniques and procedures for law enforcement investigations or prosecutions, or
       would disclose guidelines for [such actions] if such disclosure could reasonably be
       expected to risk circumvention of the law.

5 U.S.C. § 552(b)(7)(E). The FBI invoked this exemption to withhold “information about

procedures and techniques used by FBI agents to conduct polygraph examinations.” Def.’s

Suppl. Mem. Supp. Mot. Summ. J. 14. In support, the government contends that disclosing this

information “could reasonably be expected to risk circumvention of the law” under the

exemption because it would have the potential to allow deduction of patterns or methods the FBI

uses to implement polygraphs as law enforcement tools. In her response to DOJ’s supplemental

memorandum in support of its motion for summary judgment, Sack objects to use of this

exemption on the ground that the FBI’s definition of a reasonable risk of circumvention of the

law is overbroad.

       As the government points out, “Exemption 7(E) sets a ‘low bar for the agency to justify

withholding.’” Citizens for Responsibility and Ethics in Wash. v. U.S. Dep’t of Justice, 746 F.3d

1082, 1102 (D.C. Cir. 2014) (quoting Blackwell v. FBI, 646 F.3d 37, 42 (D.C. Cir. 2011)). The

D.C. Circuit has upheld use of Exemption 7(E) to protect from disclosure the CIA’s security

clearance procedures because it was “self-evident that information revealing [such] procedures

could render those procedures vulnerable and weaken their effectiveness at uncovering

background information on potential candidates.” Morley v. CIA, 508 F.3d 1108, 1129 (D.C.

Cir. 2007). So too here. Disclosing the procedures and techniques the FBI uses to conduct



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polygraph examinations would weaken their effectiveness at tracking and interpreting responses

to questioning during such examinations, which would thereby weaken the effectiveness of

polygraph examinations as a law enforcement tool. Accordingly, the FBI was justified in

withholding these documents under Exemption (b)(7)(E).

        IV.    Conclusion

        For the foregoing reasons, it is hereby

        ORDERED that what remains of Defendant’s renewed Motion for Summary Judgment

        is GRANTED.

        SO ORDERED.




                                                          CHRISTOPHER R. COOPER
                                                          United States District Judge

Date:    October 14, 2015




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