Hillier v. Central Intelligence Agency

• Court: District Court, District of Columbia
• Decided: September 27, 2019
• Docket: Civil Action No. 2016-1836
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

WYNSHIP W. HILLIER,

Plaintiff,

v. No. 16-cv-1836 (DLF) DEPARTMENT OF HOMELAND SECURITY,

Defendant.

MEMORANDUM OPINION

Wynship Hillier, proceeding pro se, brings this action against the Department of

Homeland Security (DHS) under the Privacy Act of 1974, 5 U.S.C. § 552a. Before the Court is

DHS’s Renewed Motion for Summary Judgment, Dkt. 73. For the reasons that follow, the Court

will grant DHS’s motion.

I. BACKGROUND

In 2012, Hillier filed Privacy Act requests with the Central Intelligence Agency, DHS,

and the U.S. Department of State, seeking records concerning alleged “involuntary outpatient

treatment” that “seemed to have Federal cooperation.” Second Am. Compl. ¶ 2, Dkt. 33. On

September 12, 2018, this Court granted in part the government’s motion for summary judgment

with respect to the CIA and the Department of State and denied the motion in part with respect to

DHS. 1 See Hillier v. CIA (Hillier I), No. 16-cv-1836, 2018 WL 4354947 (D.D.C. Sept. 12,

2018).

1 In its first opinion, the Court held that the CIA had conducted an adequate search, see Hillier I at *7, and properly provided a Glomar response, see id. at *9. It also held that the Department of The search of one database remains in dispute: DHS’s search of the DHS/ALL-031

database, or the Information Sharing Environment (ISE) Suspicious Activity Reporting (SAR)

Initiative System of Records. 2 In its initial opinion, the Court ruled that DHS’s declaration

lacked sufficient detail for the Court to determine whether DHS’s search was adequate. 3 See

Hillier I at *13. Specifically, the Court held that it was unclear (1) whether the Office of

Intelligence and Analysis was the only DHS component reasonably likely to have responsive

records in DHS/ALL-031, and (2) whether the Office’s searches of DHS/ALL-031 covered all

DHS components’ suspicious activity reports or only the Office’s reports. See September 12,

2018 Order at 1; Hillier I at *13–14.

On December 20, 2018, DHS filed a renewed motion for summary judgment, supported

by supplemental declarations from Brendan Henry, DHS’s Acting Chief of the Privacy and

Intelligence Oversight Branch of the Office of Intelligence and Analysis, and James V.M.L.

Holzer, the Deputy Chief FOIA Officer for the DHS Privacy Office. See Henry Decl. ¶ 1, Dkt.

73-1; Holzer Decl. ¶¶ 1–2, Dkt. 73-8. In response, Hillier filed an opposition to the renewed

motion for summary judgment, Dkt. 77, a motion for discovery conference, Dkt. 84, and a

State conducted an adequate search and found no responsive records. See id. at *16–17. This earlier opinion contains an extensive discussion of the facts that the Court does not repeat here. See id. at *1–2, *9–14. 2 Hillier also requested that DHS search two other databases: DHS/IA-001, the system that contains all records over which DHS’ Office of Intelligence and Analysis exercised control, and DHS/ALL-030, the Terrorist Screening Database System of Records. See Sepeta Decl. ¶ 9, 12. Hillier does not appear to challenge these searches here. See Hillier I at *13. 3 DHS effectively searched DHS/ALL-031 twice. First, it searched DHS/ALL-031 when it searched DHS/IA-001 in response to Hillier’s January 12, 2012 request because that search covered all records controlled by the Office of Intelligence and Analysis. Sepeta Decl. ¶ 22. Second, it searched ALL-031 on May 8, 2012. Id. ¶¶ 16, 23.

2 motion to take judicial notice, Dkt. 85. 4

II. LEGAL STANDARD

Rule 56 of the Federal Rules of Civil Procedure mandates that “[t]he court shall grant

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). A “material”

fact is one with the potential to change the substantive outcome of the litigation. See Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is “genuine” if a reasonable jury could

determine that the evidence warrants a verdict for the nonmoving party. See id. All facts and

inferences must be viewed in the light most favorable to the requester, and in a FOIA case, the

agency bears the burden of showing that it complied with the applicable legal standard. See

Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 150 (2000); Chambers v. U.S. Dep’t of

Interior, 568 F.3d 998, 1003 (D.C. Cir. 2009). Courts in this jurisdiction recognize that “the vast

majority of FOIA cases can be resolved on summary judgment.” Brayton v. Office of the U.S.

Trade Representative, 641 F.3d 521, 527 (D.C. Cir. 2011).

“[F]ederal courts . . . rely on government affidavits to determine whether the statutory

obligations” have been met. Perry v. Block, 684 F.2d 121, 126 (D.C. Cir. 1982) (per curiam).

Agency affidavits are accorded a presumption of good faith, SafeCard Servs., Inc. v. SEC, 926

F.2d 1197, 1200 (D.C. Cir. 1991), and “[s]ummary judgment may be granted on the basis of

agency affidavits if they contain reasonable specificity of detail rather than merely conclusory

4 Hillier suggests that he may move to amend his complaint. See Pl.’s Br. at 1, Dkt. 77-2. A party may amend its pleading once as a matter of course, but otherwise, it can amend only with the other party’s consent or the Court’s leave “when justice so requires.” Fed. R. Civ. P. 15(a)(2). This Court has already granted Hillier leave to amend twice. To the extent Hillier seeks to amend his complaint a third time, his motion is denied because DHS has not consented and he has not shown that “justice so requires.”

3 statements, and if they are not called into question by contradictory evidence in the record or by

evidence of agency bad faith,” Judicial Watch, Inc. v. U.S. Secret Serv., 726 F.3d 208, 215 (D.C.

Cir. 2013) (internal quotation marks omitted).

III. ANALYSIS

Based on all of DHS’s declarations, including the Henry declaration, the Holzer

declaration and the earlier declaration from former Privacy and Intelligence Oversight Branch

Chief Arthur Sepeta, Dkt. 40-2, the Court concludes that DHS conducted an adequate search. As

explained here, DHS’s supplemental declarations clarify that the Office of Intelligence and

Analysis’s search of DHS/ALL-031 covered all DHS components’ suspicious activity reports.

The Court also rejects Hillier’s requests for an in camera review because DHS’s supplemental

declarations are sufficiently detailed and the record shows no evidence of bad faith. 5

A. Adequacy of the Search

To prevail on a motion for summary judgment regarding the adequacy of a search, an

agency must show “beyond material doubt” that it “conducted a search reasonably calculated to

uncover all relevant documents.” Weisberg v. U.S. Dep’t of Justice, 705 F.2d 1344, 1351 (D.C.

Cir. 1983). This standard applies to requests under both FOIA and the Privacy Act. See

Chambers, 568 F.3d at 1005 (stating that “the Privacy Act, like FOIA, requires” that a search be

“reasonably calculated to uncover all relevant documents” (internal quotation marks omitted)); see

5 In addition to his motion to take judicial notice, Hillier appears to have made a request for judicial notice in his brief opposing summary judgment, see Pl.’s Br. Ex. 2. The Court declines to take judicial notice because Hillier seeks judicial notice of materials that are unnecessary to the resolution of the motions for summary judgment and do not affect the Court’s opinion. See Larson v. Dep’t of State, 565 F.3d 857, 870 (D.C. Cir. 2009) (denying request for judicial notice of articles that would not alter the court’s opinion). The Court also denies Hillier’s motion for discovery conference, Dkt. 84, as moot because it concludes DHS conducted an adequate search of DHS/ALL-031.

4 also Hill v. U.S. Air Force, 795 F.2d 1067, 1069 (D.C. Cir. 1986) (per curiam). The relevant

standard for this inquiry is “reasonableness,” Truitt v. Dep’t of State, 897 F.2d 540, 542 (D.C.

Cir. 1990) (citation omitted), not whether the agency “actually uncovered every document

extant,” SafeCard Servs., 926 F.2d at 1201. A search is considered adequate when an agency

shows that “it made a good faith effort” and used “methods which can be reasonably expected to

produce” the requested records. Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir.

1990). Simply put, the government must “show that its search efforts were reasonable and

logically organized to uncover relevant documents,” but “it need not knock down every search

design advanced by [the] requester.” DiBacco v. U.S. Army, 795 F.3d 178, 191 (D.C. Cir. 2015).

At the summary judgment stage, the court can rely on “a reasonably detailed affidavit, setting

forth the search terms and the type of search performed, and averring that all files likely to

contain responsive materials (if such records exist) were searched.” Chambers, 568 F.3d at 1003

(internal quotation marks omitted).

The search was reasonable because the Henry and Holzer declarations clarify that the

Office of Intelligence and Analysis’s search of DHS/ALL-031 covered the suspicious activity

reports of that office and all other DHS components. As explained, the Privacy Office referred

Hillier’s DHS/ALL-031 request to the Office of Intelligence and Analysis because that office

uses the DHS/ALL-031 system to compile and access suspicious activity reports, which are

maintained on the DHS Nationwide Suspicious Activity Report Initiative (NSI) Shared Space

Server. See Holzer Decl. ¶¶ 5–7. The NSI Shared Space program allowed the Office of

Intelligence and Analysis to query and retrieve any responsive records from all DHS

components. See id. ¶ 6; Henry Decl. ¶ 11. Further, “[a]dditional searches by other DHS

components being granted access to this system would not locate additional responsive records.”

5 Holzer Decl. ¶ 6. Thus, DHS utilized “methods which can be reasonably expected to produce”

the requested records. See Oglesby, 920 F.2d at 68.

Hillier questions the good faith of the DHS declarants, but government affidavits are

entitled to “substantial weight,” and their sufficiency “is not undermined by a mere allegation of

agency misrepresentation or bad faith.” Hayden v. Nat’l Sec. Agency/Cent. Sec. Serv., 608 F.2d

1381, 1387 (D.C. Cir. 1979); see also Baez v. U.S. Dep’t of Justice, 647 F.2d 1328, 1333 (D.C.

Cir. 1980) (“General allegations of agency bad faith in other instances—either hypothetical or

actual—will not undermine the veracity of the agency’s affidavit submitted in support of its

classification decision.”). Even though it took DHS over six months to finish processing

Hillier’s Privacy Act request, this does not demonstrate that the agency acted in bad faith. See

Pl.’s Br. at 3. It is well established that “delays in responding to a FOIA request are rarely, if

ever, grounds for discrediting later affidavits by the agency.” Iturralde v. Comptroller of

Currency, 315 F.3d 311, 315 (D.C. Cir. 2003); see also Boyd v. Criminal Div. of DOJ, 475 F.3d

381, 391 (D.C. Cir. 2007) (several month delay in responding to initial FOIA request did not

constitute evidence of bad faith); Bartko v. DOJ, 102 F. Supp. 3d 342, 352–53 (D.D.C. 2015)

(several months of agency delay is insufficient for finding of bad faith).

Nor do apparent inconsistencies between the Henry Declaration and DHS’s previous

statements about the DHS/ALL-031 search give rise to an inference of bad faith. As an initial

matter, it is questionable whether there are inconsistencies between Sepeta’s earlier statement

that DHS had only searched “the subset of suspicious activity reports that would be under the

control of [the Office of Intelligence and Analysis] and otherwise covered by DHS/ALL-031,”

Sepeta Decl. ¶ 22, and Henry’s later representation that the Office of Intelligence and Analysis

searched the suspicious activity reports of every DHS component. See Pl.’s Br. at 2. The Henry

6 declaration simply clarifies that each individual DHS component controlled its own suspicious

activity reports. The Office of Intelligence and Analysis was able to search all of the component

suspicious activity reports, and it did so here. See Henry Decl. ¶ 11. The Henry Declaration also

explains ambiguous language in DHS’s November 26, 2013 letter. See Def.’s Br. Ex. E., Dkt.

73-6. While the letter suggested that Hillier “must make separate requests” to access suspicious

activity reports of “other NSI participants,” id., Henry clarifies that the “other NSI participants”

to whom DHS referred were “non-DHS component participants.” Henry Decl. ¶ 11. As such, the

Office of Intelligence and Analysis did in fact search all DHS components’ suspicious activity

reports. Id. Regardless, inconsistent positions do not imply bad faith. See, e.g., Goland v. CIA,

607 F.2d 339, 355 (D.C. Cir. 1978) (rejecting the plaintiffs’ argument that the government’s

“inconsistent positions” on disclosure suggests bad faith); SafeCard Servs., 926 F.2d at 1202

(holding that inconsistencies in government affidavits “support neither the allegation that the

SEC’s search procedures were inadequate, nor an inference that it acted in bad faith”).

Hillier’s suggestion that DHS failed to produce responsive records because the Office of

Intelligence and Analysis could query but not release other components’ suspicious activity

reports found under the NSI Shared Spaces program is mere conjecture. See Pl.’s Br. at 5–6.

There is no evidence that the Office of Intelligence and Analysis found but was unable to release

documents responsive to Hillier’s request. Indeed, the declarations state that the Office of

Intelligence and Analysis found no responsive records. See Sepeta Decl. ¶¶ 11, 21, 23; Henry

Decl. ¶ 9; see also Sepeta Decl. Ex. C., Dkt. 40-2. The presumption of good faith accorded to

agency affidavits “will withstand purely speculative claims about the existence and

discoverability of other documents.” Ground Saucer Watch, Inc. v. C.I.A., 692 F.2d 770, 771

(D.C. Cir. 1981).

7 In addition, the Court rejects Hillier’s request for discovery on the “timing and causes” of

Sepeta’s reassignment from his former role and the “motives and circumstances” of the recent

decision to transfer oversight of the NSI Shared Space database from DHS to the FBI. Pl.’s Br.

at 9–10. Discovery in FOIA cases is “rare,” Schrecker v. DOJ, 217 F. Supp. 2d 29, 35 (D.D.C.

2002), aff’d, 349 F.3d 657 (D.C. Cir. 2003), and Hillier fails to demonstrate how the discovery

he seeks would support his speculative claims. See Competitive Enter. Inst. v. NASA, 989 F.

Supp. 2d 74, 96 (D.D.C. 2013) (citations omitted) (“[S]peculative claims about spoliation are not

sufficient to rebut the presumption of good faith accorded to agency affidavits” (internal

quotations omitted)).

B. In Camera Review

The Court rejects Hillier’s request for in camera review of certain records in DHS/ALL-

031. See Pl.’s Br. at 7. As a threshold matter, it is unclear which records Hillier seeks to

examine in camera given that DHS found no responsive records in DHS/ALL-031. As noted,

Hillier did not challenge the Glomar response to DHS/ALL-030, but instead appears to contest

DHS’s invocation of 5 U.S.C. § 552(c), which exempts certain categories of records from

disclosure. See Pl.’s Br. at 7. But DHS has not invoked 552(c) to withhold any records. See

Def.’s Br. at 7–9. Further, in camera review is appropriate only (1) when the affidavits are

conclusory or “not described in sufficient detail to demonstrate that the claimed exemption

applies,” or (2) “if there is evidence of agency bad faith,” Carter v. U.S. Dep’t of Commerce, 830

F.2d 388, 392–93 (D.C. Cir. 1987), and neither circumstance exists here. As discussed, the

Henry and Holzer declarations give detailed descriptions of the NSI Shared Space program,

which allowed the Office of Intelligence and Analysis to search other DHS components’

suspicious activity reports. And Hillier offers no credible evidence of bad faith. See Section

8 III.A., supra.

Hillier also argues that because “DHS has made no defense against” his request for an in

camera review, DHS has conceded this point. But the Court has discretion to decline to conduct

an in camera review of withheld materials. Quinon v. F.B.I., 86 F.3d 1222, 1227 (D.C. Cir.

1996) (“The decision to conduct an in camera review is committed to the broad discretion of the

trial court judge.” (internal quotation marks omitted)). Because the government has provided

detailed affidavits that demonstrate the adequacy of its search and Hillier has not overcome the

government’s presumption of good faith, the Court declines to conduct an in camera review.

CONCLUSION For the foregoing reasons, the Court grants DHS’s Renewed Motion for Summary

Judgment; denies Hillier’s Motion for Discovery Conference; and denies Hillier’s Motion to

Take Judicial Notice. A separate order accompanies this memorandum opinion.

________________________ DABNEY L. FRIEDRICH United States District Judge September 27, 2019