Whittaker v. United States Department of Justice

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA _________________________________________ ) NOEL F. WHITTAKER, ) ) Plaintiff, ) ) v. ) Case No. 18-cv-01434 (APM) ) UNITED STATES DEPARTMENT OF ) JUSTICE, et al., ) ) Defendants. ) _________________________________________ ) MEMORANDUM OPINION I. INTRODUCTION As part of a background investigation or pre-employment vetting of a person, a federal agency may ask the Federal Bureau of Investigation (“FBI”) to conduct what is known as a National Agency Check. The FBI reviews its records and provides the results to the requesting agency. Plaintiff Noel F. Whittaker had a National Agency Check done in 2007 as part of a background investigation. Years later, Plaintiff made a Freedom of Information Act (“FOIA”) request seeking a complete record of the 2007 background investigation, but the FBI withheld the results of the National Agency Check. Plaintiff then brought this action to obtain the results. During the initial round of summary judgment briefing, Defendants claimed that the withholding was justified under FOIA Exemption 7(E), a provision meant to protect law enforcement techniques and procedures from disclosure. After the court found that Defendants had not sufficiently specified the techniques and procedures implicated in Plaintiff’s name check results, it denied Defendants’ motion. Defendants now renew their motion and submit a supplemental declaration justifying their withholding under Exemption 7(E). For the reasons that follow, the court grants Defendants’ renewed motion for summary judgment. II. BACKGROUND A. Factual Background Plaintiff is a retired analytical chemist. Am. Compl., ECF No. 12 [hereinafter Am. Compl.], ¶ 3. He worked for the National Institutes of Health (“NIH”) from 1974 to 2002 and at the University of Maryland Department of Chemistry from 2002 to 2007. Id. In 2007, he returned to NIH as a vendor employed by Kelly Services. Id. In connection with his return, Plaintiff underwent a background investigation. Id. ¶ 4. On February 24, 2014, pursuant to FOIA, Plaintiff sought a copy of his background investigation report from the United States Office of Personnel Management (“OPM”). Id. ¶ 5. On March 3, 2014, OPM released the report to Plaintiff but redacted one portion—Plaintiff’s National Agency Check results—based on a request by the FBI. See id. ¶¶ 6–7; Defs.’ Renewed Mot. for Summ. J., ECF No. 26 [hereinafter Defs.’ Mot.], Defs.’ Mem. in Supp. of Renewed Mot. for Summ. J., ECF No. 26-1 [hereinafter Defs.’ Mem.], at 1. On April 30, 2014, Plaintiff appealed the withholding to the Director of the Office of Information Policy of the United States Department of Justice. Am. Compl. ¶ 8. On July 17, 2014, the Chief Administrative Appeals Staff of the Office of Information Policy denied Plaintiff’s appeal. Id. ¶ 9. B. Procedural History Having exhausted his administrative remedies under FOIA, Plaintiff initiated this action on June 18, 2018. See Am. Compl. On November 15, 2018, Defendants OPM and the Department of Justice moved for summary judgment, defending their withholding of the National Agency Check results under FOIA Exemption 7(E). See Defs.’ Mot. for Summ. J., ECF No. ...

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