UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) NANCY CRISMAN, et al., ) ) ) Plaintiffs, ) ) v. ) Case No. 12-cv-1871 (TSC) ) DEPARTMENT OF JUSTICE, et al., ) ) ) Defendants. ) ) MEMORANDUM OPINION Plaintiffs Nancy Crisman and National Security Counselors (“NSC”) have brought suit against the Department of Justice (“DOJ”), the Board of Governors of the Federal Reserve System (“FRB”), the Department of Homeland Security (“DHS”), and the Office of the Director of National Intelligence (“ODNI”), alleging violations of the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, et seq., as amended; the Privacy Act, 5 U.S.C. § 552a, et seq.; the Administrative Procedure Act (“APA”), 5 U.S.C. § 701, et seq.; and the Fifth Amendment of the United States Constitution. Before the court are Defendants’ First Motion for Summary Judgment (ECF No. 26) and Second Motion for Summary Judgment and to Dismiss (ECF No. 46). Upon consideration of the parties’ filings, and for the reasons stated herein, the court will GRANT in part and DENY in part both motions. I. BACKGROUND A. The Financial Institution Security Association (“FISA”) Alert In March 2004, the Financial Institution Security Association (“FISA”) sent a document to the Federal Bureau of Investigations’ (“FBI”) Miami field office. ECF No. 1 (Compl.) ¶ 11. The document concerned Plaintiff Crisman and was titled “FISA Alert Report Form” (hereinafter, “FISA Alert”). Id. It was marked “CONFIDENTIAL,” and stated “[w]e are looking for any and all information on the above subjects or businesses, including, but not limited to checking or savings accounts, safety deposit boxes, or any other pertinent information where these individuals/businesses may have accounts.” Id. ¶¶ 11–12. Although the FISA Alert was a financial inquiry, the FBI erroneously characterized it as a record pertaining to the Foreign Intelligence Surveillance Act. Id. ¶ 14. Crisman alleges that the mischaracterization resulted in the termination of her employment as a nurse for Corporate Nurse, Inc. (“CNI”), her expulsion from the FRB headquarters, and the subsequent termination of her assignment as a nurse at the FRB headquarters—all of which occurred after the FISA Alert was sent to the FBI. See id. ¶ 15. Based on her expulsion from the FRB headquarters, Crisman also alleges that the mischaracterization has resulted in her name appearing on “numerous national security and homeland security watch lists which were disseminated to other federal security agencies and DOJ components.” Id. ¶ 14. B. Crisman’s Original FOIA Request In June 2005, Crisman filed a FOIA and Privacy Act request with the FBI, requesting all records about her—including the FISA Alert—from the FBI’s Miami Field Office (the “Original Request”). Id. ¶ 17. The FBI refused to produce the FISA Alert, classifying the entire document as “Confidential” and finding that it was entitled to withhold the document under FOIA Exemption (b)(1) and Privacy Act Exemption (j)(2). Id. ¶¶ 18–19. Crisman appealed the FBI’s withholding decision, which the Office of Information Policy (“OIP”) affirmed on July 31, 2 2006.1 Id. ¶¶ 20–21. On ...
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