UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

_______________________________ 

 ) 

KATELYN SACK, ) 

 ) 

Plaintiff, ) 

 ) 

v. ) Civil Action No. 12-244 (EGS) 

 ) 

CENTRAL INTELLIGENCE AGENCY, ) 

et al., ) 

 ) 

Defendants. ) 

_______________________________) 

MEMORANDUM OPINION

Plaintiff Katelyn Sack requested information from the 

defendants, the Central Intelligence Agency (“CIA”), the 

Department of Defense (“DOD”), and the Department of Justice 

(“DOJ”), and their component agencies under the Freedom of 

Information Act (“FOIA”), 5 U.S.C. § 552. Dissatisfied with 

their responses, she filed this lawsuit. Pending before the 

Court are defendants’ motion for summary judgment and 

plaintiff’s motion to reinstate Count Fifteen of her Complaint. 

Upon consideration of the motions, the responses and replies 

thereto, the applicable law, and the entire record, the Court 

GRANTS IN PART AND DENIES IN PART defendants’ motion for summary 

judgment and DENIES plaintiff’s motion to reinstate. 

I. BACKGROUND 

Katelyn Sack, a doctoral student, is writing a dissertation 

about polygraph examinations. See Compl. ¶ 4. In 2010 and 2011, 
2 

Ms. Sack submitted a number of FOIA requests to the defendants. 

Some, but not all, of these requests related to the agencies’ 

use of polygraphs. Dissatisfied with the agencies’ responses, 

Ms. Sack filed suit on February 14, 2012. 

On April 25, 2013, the parties entered into a stipulation, 

dismissing Counts Two, Six, Eight, Ten, Eleven, Thirteen, and 

Fifteen of the Complaint. See Joint Stipulation, ECF No. 13 at 

2. They also stipulated to the adequacy of the searches 

performed by each defendant. See id. at 1. The defendants moved 

for summary judgment on the remaining counts on May 3, 2013. See 

Mem. in Supp. of Defs.’ Mot. for Summ. J. (“Mem.”), ECF No. 14-

1. Plaintiff responded on June 24, 2013. See Pl.’s Opp. to 

Defs.’ Mot. for Summ. J. (“Opp.”), ECF No. 21. After multiple 

extensions, the defendants filed their reply brief on January 

10, 2014. See Defs.’ Reply in Supp. of Summ. J. (“Reply”), ECF 

No. 27.1 The Court recites the facts relevant only to those 

Counts that remain in dispute.

1. The Central Intelligence Agency’s Refusal to Search 

(Count One) 

On November 30, 2010, plaintiff submitted a request to the CIA 

(the “Count One Request”) for “documents pertaining in whole or 

 

1

 On February 9, 2014, plaintiff moved to rescind the stipulated 

dismissal of Count Fifteen. See Mot. to Rescind, ECF No. 30. The 

defendants responded on February 26, 2014, Opp. to Mot. to 

Rescind, ECF No. 31, and plaintiff filed her reply on March 9, 

2014. See Reply in Supp. of Mot. to Rescind, ECF No. 32. 
3 

in part (all years, all classifications) to a list of closed 

Inspector General investigations and reports.” Defs.’ Statement 

of Facts (“Defs.’ SMF”), ECF No. 14-2 ¶ 1; see Ex. A to CIA 

Decl., ECF No. 14-5 at 2. 

On February 7, 2011, the CIA responded to plaintiff’s request 

and indicated that: 

We cannot accept your FOIA request in its current form 

because it would require the Agency to perform an 

unreasonably burdensome search. The FOIA requires 

requesters to “reasonably describe” the information 

they seek so that professional employees familiar with 

the subject matter can locate responsive information 

with a reasonable amount of effort. Because of the 

breadth of your request, and the way in which our 

records systems are configured, the Agency cannot 

conduct a reasonable search for information responsive 

to your request. We encourage you to refine the scope 

of your request (such as a more narrow time frame for 

the information you seek) to enable us to conduct a 

reasonable search for responsive information. 

Ex. B to CIA Decl., ECF No. 14-5 at 5; see Defs.’ SMF ¶ 2. 

Plaintiff did not contact the CIA to narrow or modify her 

request, and never filed an administrative appeal of the CIA’s 

refusal to conduct a search. Defs.’ SMF ¶ 3.2

2. The Central Intelligence Agency’s Withholdings (Counts 

Three and Four) 

On July 5, 2011, plaintiff submitted to the CIA two separate 

requests. The first request (the “Count Three Request”) sought: 

(1) All records pertaining to changes made since 1994 

in “the policies applicable to the training, 

 

2

 The CIA disclaimed any argument related to plaintiff’s failure 

to file an administrative appeal. See Reply at 5 n.1. 
4 

supervision, and performance appraisal of polygraph 

examiners to ensure that polygraph examinations are 

conducted in a professional manner and produce optimum 

results,” in keeping with Recommendation No. 17 of the 

SSCI Report;3 (2) All current “policies applicable to 

the training, supervision, and performance appraisal 

of polygraph examiners to ensure that polygraph 

examinations are conducted in a professional manner 

and produce optimum results,” regardless of whether or 

not the records discuss actual or proposed policy 

changes; and (3) Any other records pertaining to 

Recommendation No. 17 of the SSCI Report. 

Ex. F to CIA Decl., ECF No. 14-5 at 18; see Defs.’ SMF ¶ 5. The 

CIA responded to this request on July 26, 2012, and indicated 

that it had “located nine documents, seven of which can be 

released in segregable form with deletions made on the basis of 

FOIA exemption (b)(1), (b)(3), and/or (b)(6)” and that the 

remaining two documents were “denied in their entirety on the 

basis of FOIA exemption (b)(3) and (b)(5).” Ex. G to CIA Decl., 

ECF No. 14-5 at 27. 

Plaintiff’s second request (the “Count Four Request”) sought: 

(1) All records pertaining to “[evaluations] of the 

polygraph as a part of CIA’s security program” since 

1994, in keeping with Recommendation No. 18 of the 

SSCI Report;4

 (2) All records pertaining to polygraph 

 

3

 This refers to a report of the Senate Select Committee on 

Intelligence. See Staff of S. Select Comm. on Intelligence, 103d 

Cong., An Assessment of the Aldrich H. Ames Espionage Case and 

Its Implications for U.S. Intelligence (Comm. Print 1994), 

available at http://www.intelligence.senate.gov/pdfs103rd/ 

10390.pdf. Recommendation 17 proposed that “[t]he Director of 

Central Intelligence should tighten polygraph procedures to make 

the polygraph more useful” and made suggestions. Id. at 68-69. 

4

 Recommendation Number 18 suggested that “[t]he Director of 

Central Intelligence should institute a fundamental reevaluation 
5 

reliability and validity with respect to deception 

detection; (3) All records pertaining to the 

polygraph’s relation to other aspects of the security 

process, such as background investigations, financial 

and supervisory reporting, and psychological testing; 

(4) All records pertaining to the use of inconclusive 

test results, especially (but not limited to) 

situations in which there are no damaging admissions; 

(5) All records pertaining to the use of deceptive 

polygraph results in the absence of damaging 

admissions; and (6) Any other records pertaining to 

Recommendation No. 18 of the SSCI Report. 

Ex. H to CIA Decl., ECF No. 14-5 at 30; see Defs.’ SMF ¶ 7. The 

CIA responded to this request on June 6, 2012, indicating that 

it “located five documents, four of which can be released in 

segregable form with deletions made on the basis of FOIA 

exemption (b)(1), (b)(3), and/or (b)(6)” and that the remaining 

document “must be denied in its entirety on the basis of FOIA 

exemption (b)(1) and (b)(3).” Ex. I to CIA Decl., ECF No. 14-5 

at 37; see Defs.’ SMF ¶ 8. 

The parties agree that only certain CIA documents, and certain 

withholdings, remain at issue. See Defs.’ SMF ¶¶ 6, 8; Opp. at 

3-4. As to the Count Three Request, the parties dispute partial 

redactions made pursuant to Exemption 3 in Documents 3 and 5. 

See Defs.’ SMF ¶ 6. As to the Count Four Request, the parties 

dispute the withholding in full of Document 1 pursuant to 

 

of the polygraph as a part of CIA’s security program.” Staff of 

S. Select Comm. On Intelligence, 103d Cong., An Assessment of 

the Aldrich H. Ames Espionage Case and Its Implications for U.S. 

Intelligence 69 (Comm. Print 1994), available at http:// 

www.intelligence.senate.gov/pdfs103rd/10390.pdf. 
6 

Exemptions 1 and 3, the partial withholding of Documents 2 and 4 

pursuant to Exemptions 1 and 3, and the partial withholding of 

Document 3 pursuant to Exemption 3. Id. ¶ 8; Opp. at 3–4.

3. The Defense Intelligence Agency’s Withholdings (Counts 

Seven and Nine)5

On November 21, 2010, plaintiff submitted a request to the 

Defense Intelligence Agency (“DIA”) by email, seeking “a 

printout of the list of reports at the Defense Intelligence 

Agency, or the Defense Academy of Credibility Assessment written 

by Gordon Barland” and “a copy of each of the reports located.” 

Ex. D to DIA Decl., ECF No. 14-9 at 32; see Defs.’ SMF ¶ 10. In 

response, the DIA released multiple reports by Gordon Barland, 

but withheld in full two of his reports (called V-70 and V-71) 

pursuant to Exemptions 1, 3, and 7(E). Defs.’ SMF ¶ 10. 

Plaintiff challenges only the Exemption 7(E) withholdings. See 

Opp. at 4-5 & n.4. 

On July 26, 2011, plaintiff submitted another request to the 

DIA, seeking “copies of all course materials” for certain 

“National Center for Credibility Assessment courses.” Ex. G to 

DIA Decl., ECF No. 14-9 at 44; see Defs.’ SMF ¶ 11. The DIA 

 

5

 Although the parties have not stipulated to the dismissal of 

Count Five, plaintiff appears to concede that Count. Count Five 

addressed the DIA’s response to a November 21, 2010 request for 

“a list of closed Inspector General investigations and reports.” 

Compl. ¶¶ 34-40. In response to that request, the DIA released 

one partially redacted document. See Defs.’ SMF ¶ 9. Plaintiff 

did not list withholdings from that document among those she 

continues to challenge. See Opp. at 4-5. 
7 

released numerous records in response and the parties dispute 

only certain Exemption 3 and 6 withholdings from document V-21, 

Exemption 7(E) withholdings from documents V-27 and V-29, and 

Exemption 3 withholdings from document V-30. See Defs.’ SMF ¶ 

11; Opp. at 4–5.

4. The Department of Defense’s Withholdings (Count 

Twelve) 

On October 24, 2011, plaintiff submitted a request to the 

DOD’s Office of the Inspector General (“DODIG”) for “a copy of 

all Department of Defense Office of the Inspector General . . . 

records relating to the use of polygraphs by DOD components.” 

Ex. A to DODIG Decl., ECF No. 14-11 at 20; see Defs.’ SMF ¶ 12. 

DODIG conducted a series of document releases in response. See 

Defs.’ SMF ¶ 13. At issue are four documents, IG-1, IG-2, IG-3, 

and IG-4. See Opp. at 5; DODIG Vaughn Index, ECF No. 14-12 at 2-

3. Plaintiff challenges partial withholdings from IG-1 and IG-2, 

and the complete withholding of IG-3 and IG-4, all pursuant to 

Exemption 7(E). See Opp. at 5; DODIG Vaughn Index, ECF No. 14-12 

at 2-3. 

5. The Federal Bureau of Investigation’s Withholdings 

(Count Fourteen) 

On July 5, 2011, plaintiff submitted to the DOJ’s Office of 

Information Policy a request for “records related to the 

processing of all FOIA appeals submitted by her, including, but 

not limited to, Appeal No. 2010-2171, by OIP.” Ex. A to FBI 
8 

Decl., ECF No. 14-13 at 34 (emphasis omitted); see Defs.’ SMF ¶ 

14. The Office of Information Policy came upon four pages of 

Federal Bureau of Investigation (“FBI”) records, which it 

“referred . . . to FBI for review and direct response.” Defs.’ 

SMF ¶ 15. On April 24, 2012, the FBI released one page in full 

and withheld portions of the other three pages pursuant to 

Exemptions 5, 6, and 7(E). Id. Plaintiff challenges only a 

single Exemption 5 withholding. 

II. SUMMARY JUDGMENT STANDARD 

Summary judgment is granted when there is no genuine issue of 

material fact and the movant is entitled to judgment as a matter 

of law. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 

317, 325 (1986); Waterhouse v. District of Columbia, 298 F.3d 

989, 991 (D.C. Cir. 2002). In determining whether a genuine 

issue of fact exists, the court must view all facts in the light 

most favorable to the non-moving party. See Matsushita Elec. 

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). 

Under FOIA, all underlying facts and inferences are analyzed in 

the light most favorable to the FOIA requester; as such, only 

after an agency proves that it has fully discharged its FOIA 

obligations is summary judgment appropriate. Moore v. Aspin, 916 

F. Supp. 32, 35 (D.D.C. 1996) (citing Weisberg v. U.S. Dep't of 

Justice, 705 F.2d 1344, 1350 (D.C. Cir. 1983)). “FOIA cases 

typically and appropriately are decided on motions for summary 
9 

judgment.” Gold Anti-Trust Action Comm. v. Bd. of Governors of 

Fed. Reserve Sys., 762 F. Supp. 2d 123, 130 (D.D.C. 2011) 

(quotation marks omitted). 

In considering a motion for summary judgment under FOIA, the 

court must conduct a de novo review of the record. See 5 U.S.C. 

§ 552(a)(4)(B). The court may award summary judgment solely on 

the basis of information provided by the agency in affidavits 

that describe “the documents and the justifications for 

nondisclosure with reasonably specific detail, demonstrate that 

the information withheld logically falls within the claimed 

exemption, and are not controverted by either contrary evidence 

in the record nor by evidence of agency bad faith.” Military 

Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981); see 

also Vaughn v. Rosen, 484 F.2d 820, 826-28 (D.C. Cir. 1973). 

Agency affidavits must be “relatively detailed and nonconclusory.” SafeCard Servs. v. SEC, 926 F.2d 1197, 1200 (D.C. 

Cir. 1991) (quotation marks omitted). Such affidavits are 

“accorded a presumption of good faith, which cannot be rebutted 

by purely speculative claims about the existence and 

discoverability of other documents.” Id. (quotation marks 

omitted). An agency may discharge its obligations under FOIA by 

producing a Vaughn index, which is an affidavit that indexes and 

specifically describes withheld or redacted records and explains 
10 

why each withheld record is exempt from disclosure. King v. U.S. 

Dep’t of Justice, 830 F.2d 210, 218–19 (D.C. Cir. 1987). 

III. DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 

A. The CIA’s Refusal to Search (Count One). 

The plaintiff’s first argument is that the CIA erroneously 

refused to search for records responsive to the Count One 

Request. That request sought all “documents pertaining in whole 

or in part (all years, all classifications) to a list of closed 

Inspector General investigations and reports.” Ex. A to CIA 

Decl., ECF No. 14-5 at 2. The CIA claims that the request was 

too broad to interpret and that responding would have been 

unduly burdensome. 

FOIA requires agencies to produce documents “upon any request 

for records which . . . reasonably describes such records.” 5 

U.S.C. § 552(a)(3)(A). A FOIA request must “enable[] a 

professional employee of the agency who [is] familiar with the 

subject area of the request to locate the record with a 

reasonable amount of effort.” H.R. Rep. No. 93-876, at 6 (1974), 

reprinted in 1974 U.S.C.C.A.N. 6267, 6271. “The linchpin inquiry 

is whether ‘the agency is able to determine precisely what 

records are being requested.’” Dale v. IRS, 238 F. Supp. 2d 99, 

104 (D.D.C. 2002) (quoting Tax Analysts v. IRS, 117 F.3d 607, 

610 (D.C. Cir. 1997)). By contrast, “[b]road, sweeping requests 

lacking specificity are not sufficient.” Id. Relatedly, “[a]n 
11 

agency need not honor a request that requires an unreasonably 

burdensome search,” Armstrong v. Bush, 139 F.R.D. 547, 553 

(D.D.C. 1991) (quotation marks omitted), or would require the 

agency “to locate, review, redact, and arrange for inspection a 

vast quantity of material.” Am. Fed. of Gov’t Emps. v. U.S. 

Dep’t of Commerce, 907 F.2d 203, 209 (D.C. Cir. 1990). This is 

so because “FOIA was not intended to reduce government agencies 

to full-time investigators on behalf of requesters.” 

Assassination Archives & Research Ctr. v. CIA, 720 F. Supp. 217, 

219 (D.D.C. 1989). 

The CIA claims that the Count One Request did not reasonably 

describe the records it sought because the language “pertaining 

in whole or in part” was undefined and caused the request to 

cover any document that is arguably relevant to any list of 

closed Inspector General investigations and reports, even if the 

document did not reference such a list. See First Declaration of 

Martha M. Lutz (“CIA Decl.”), ECF No. 14-4 ¶ 22. The plaintiff 

counters that the CIA is intentionally misinterpreting her 

request, which was “limited to only those records which 

referenced (1) a list (2) of closed (3) Inspector General 

investigations and reports,” and asserts that “there would be 

very few places which would maintain records discussing lists of 

OIG investigations.” Opp. at 8 (emphasis omitted). 
12 

Plaintiff’s request was broader than she claims. It did not 

seek “all lists of closed Inspector General investigations and 

reports” or even “all records that refer to a list of closed 

Inspector General investigations and reports.” It sought all 

records that “pertain[] in whole or in part (all years, all 

classifications)” to such a list. Ex. A to CIA Decl., ECF No. 

14-5 at 2. Nor did she describe how the CIA should determine 

whether a record “pertain[s] in whole or in part” to such a 

list. This phrase is difficult to define because a record may 

pertain to something without specifically mentioning it. See 

Black’s Law Dictionary (9th ed. 2009), pertain (“[t]o relate to” 

or “to concern”); Latham v. U.S. Dep’t of Justice, 658 F. Supp. 

2d 155, 157, 161 (D.D.C. 2009) (request for “any records . . . 

that pertain in any form or sort to [plaintiff]” was “overly 

broad, and to require the [agency] to process it would be overly 

burdensome”); James Madison Project v. CIA, No. 8-cv-1323, 2009 

WL 2777961, at *4 (E.D. Va. Aug. 31, 2009) (request for “all CIA 

documents pertaining to . . . [t]he indexing and organizational 

structure of all CIA Systems of Records subject to FOIA” was 

overbroad “because the term ‘pertaining to’ is synonymous to the 

term ‘relating to’” and that “unfairly places the onus of nonproduction on the recipient of the request”) (quotation marks 

omitted; alteration in original). Accordingly, although 

plaintiff’s request clearly encompasses all lists of closed 
13 

Inspector General investigations and reports and any documents 

specifically referencing those lists, it would also cover 

documents that otherwise relate to those lists. 

The problem for an agency responding to such a request is that 

the lack of clarity leaves the agency to guess at the 

plaintiff’s intent. As the CIA explained, plaintiff’s request 

could cover “any documents that relate to closed investigations 

and reports.” Second Declaration of Martha M. Lutz (“CIA Suppl. 

Decl.”), ECF No. 27-1 ¶ 13 (emphasis omitted). Indeed, any 

document related to a closed investigation may arguably pertain, 

at least “in part,” to a subsequently generated list of 

investigations. Given this breadth, the CIA could not assume 

that responsive documents would be located only in those “very 

few places which would maintain records discussing lists of OIG 

investigations.” Opp. at 8. That would be a starting point, but 

the CIA would also have needed to devise a method to search for 

records that do not mention a list of closed Inspector General 

investigations and reports, but still somehow pertain to such a 

list. This borders on the “all-encompassing fishing expedition” 

on which a FOIA requester cannot embark. Dale, 238 F. Supp. 2d 

at 104-05; see Marks v. U.S. Dep’t of Justice, 578 F.2d 261, 

262, 263 (9th Cir. 1978) (request for all records “under” a 

particular individual’s name was a “broad, sweeping request[]” 

that did not reasonably describe the records it sought); Hunt v. 
14 

CFTC, 484 F. Supp. 47, 51 (D.D.C. 1979) (request for records 

that “concerned” the requester was overbroad); Fonda v. CIA, 434 

F. Supp. 498, 501 (D.D.C. 1977) (requester who sought “all 

documents which . . . ‘concern her’ but do not mention her name” 

made overbroad request by “offer[ing] no criterion by which 

defendants can determine which documents ‘concern her’”). 

This problem is especially acute because the CIA’s recordkeeping systems do not permit it to “identify records that do 

not necessarily reference a document, but which may bear some 

relation to it.” Mem. at 33 (citing CIA Decl. ¶ 22). Although 

the D.C. Circuit has cautioned against “an ‘undiscriminating 

adoption’” of agency claims, Armstrong, 139 F.R.D. at 553 

(quoting Founding Church of Scientology, Inc. v. NSA, 610 F.2d 

824, 837 (D.C. Cir. 1979)), “an agency’s affidavit detailing the 

reasons that searches are unreasonably burdensome should be 

accepted unless there is ‘some reason to believe that the 

documents could be located without an unreasonably burdensome 

search.’” Id. (quoting Goland v. CIA, 607 F.2d 339 (D.C. Cir. 

1978)). Here, “[t]he breadth of plaintiff’s request[] is not 

compatible with the CIA’s document retrieval system, and 

plaintiff must deal with that system as it is.” Assassination 

Archives, 720 F. Supp. at 220. 

Moreover, plaintiff had ample opportunity to accept the CIA’s 

offer to reframe or narrow her request, but she failed to do so. 
15 

Now that this case has been litigated for years, plaintiff seeks 

to obtain only lists of closed Inspector General investigations 

and reports themselves, not any records “about these lists.” 

Opp. at 10 n.7. This narrowing, however, did not come in time to 

permit the CIA to conduct a search responsive to a more 

reasonably framed request. Moreover, the parties have stipulated 

that the sole legal issue before the Court is “whether CIA was 

legally obligated to conduct [a] search” in response to 

plaintiff’s request. Joint Stipulation, ECF No. 13 at 2. Faced 

with the task of guessing at plaintiff’s intent regarding what 

might “pertain” to any list of closed Inspector General reports 

and investigations, the CIA followed a reasonable path: it 

sought additional guidance from the requester and, when none was 

provided, closed the file.6

B. The CIA’s Withholdings (Counts Three and Four). 

 

6

 After this lawsuit was filed, the CIA searched for “a 

comprehensive list of closed OIG investigations” and “determined 

that no such listing exists.” CIA Decl. ¶ 22. Plaintiff attached 

to her opposition what she claims are lists of OIG 

investigations, and argued that the CIA’s declaration was 

therefore untrustworthy. See Opp. at 9-10. To begin, it is not 

clear that the documents are all what plaintiff claims; one is a 

“more comprehensive list, which includes open and closed 

investigations and other OIG matters, such as grievances.” 

Suppl. CIA Decl. ¶ 13 n.5. The Court does not infer bad faith 

from the agency’s failure to locate a single document in 

connection with a search where the parties have agreed that the 

sufficiency of any search is not a legal issue before this 

Court. See Joint Stipulation, ECF No. 13 at 2. 
16 

Plaintiff also challenges the CIA’s Exemption 1 and 3 

withholdings in response to the Count Three and Count Four 

Requests. She disputes partial redactions in five documents and 

the complete withholding of a sixth. Because the CIA indicated 

that “all of the information withheld pursuant to Exemption 

(b)(1) is also covered by [Exemption (b)(3)],” CIA Suppl. Decl. 

¶ 4, the Court need not address the applicability of Exemption 1 

if the Exemption 3 withholdings were proper. See, e.g., Elec. 

Frontier Found. v. U.S. Dep’t of Justice, 739 F.3d 1, 13 (D.C. 

Cir. 2014). 

Exemption 3 protects records that are “specifically exempted 

from disclosure by statute . . . if that statute . . . requires 

that the matters be withheld from the public in such a manner as 

to leave no discretion on the issue; or . . . establishes 

particular criteria for withholding or refers to particular 

types of matters to be withheld.” 5 U.S.C. § 552(b)(3). “In 

determining whether the government properly invoked this 

exemption, courts should ‘not closely scrutinize’ the withheld 

document’s contents but rather determine (1) ‘whether there is a 

relevant statute’ and (2) ‘whether the document falls within 

that statute.’” Darnbrough v. U.S. Dep’t of State, 924 F. Supp. 

2d 213, 217 (D.D.C. 2013) (quoting Perry-Torres v. Dep’t of 

State, 404 F. Supp. 2d 140, 143 (D.D.C. 2005)). 
17 

The CIA relies on two statutes for its Exemption 3 

withholdings: Section 102A(i)(1) of the National Security Act, 

50 U.S.C. § 3024(i)(1); and Section 6 of the Central 

Intelligence Agency Act of 1949, 50 U.S.C. § 3507. These 

provisions “plainly are statutes contemplated by Exemption 3.” 

Int’l Counsel Bureau v. CIA, 774 F. Supp. 2d 262, 273 (D.D.C. 

2011). The question for the Court is whether the information 

that the CIA withheld falls within these statutes. Darnbrough, 

924 F. Supp. 2d at 217.

1. Section 102A(i)(1) of the National Security Act 

Section 102A(i)(1) of the National Security Act provides that 

“[t]he Director of National Intelligence shall protect 

intelligence sources and methods from unauthorized disclosure.” 

50 U.S.C. § 3024(i)(1). This provision grants the CIA “very 

broad authority to protect all sources of intelligence 

information from disclosure.” CIA v. Sims, 471 U.S. 159, 168–69 

(1985). According to the Supreme Court, “it is the 

responsibility of the Director of Central Intelligence, not that 

of the judiciary, to weigh the variety of complex and subtle 

factors in determining whether disclosure of information may 

lead to an unacceptable risk of compromising the Agency’s 

intelligence-gathering process.” Id. at 180. Accordingly, 

“courts are required to give ‘great deference’ to the CIA’s 

assertion that a particular disclosure could reveal intelligence 
18 

sources or methods.” Berman v. CIA, 501 F.3d 1136, 1140 (9th 

Cir. 2007) (quoting Sims, 471 U.S. at 179); see also Larson v. 

Dep’t of State, 565 F.3d 857, 865 (D.C. Cir. 2009). In light of 

the Supreme Court’s decision in Sims, the Act provides a “nearblanket FOIA exemption.” Berman, 501 F.3d at 1140 (quotation 

marks omitted).7

Plaintiff focuses her argument on the CIA’s invocation of the 

National Security Act in its Vaughn indices. See Opp. at 11. 

These assertions, plaintiff claims, fail to meet the agency’s 

burden of demonstrating in a non-conclusory fashion that the 

withheld information relates to an intelligence source or 

method. See id. at 11-12. Plaintiff is correct that the Vaughn

indices use generic language to invoke the National Security 

Act. See, e.g., Count Three Vaughn Index, ECF No. 14-7 at 9 

(stating that the document “is withheld in part on the basis of 

FOIA exemption (b)(3)” because it “contains information relating 

to intelligence sources and methods that is specifically 

exempted from disclosure pursuant to the National Security Act 

 

7

 The Ninth Circuit has repeatedly warned that “Sims leaves 

courts ‘only a short step from exempting all CIA records from 

FOIA.’” Id. (quoting Hunt v. CIA, 981 F.2d 1116, 1120 (9th Cir. 

1992). It has further expressed “[c]oncern[] that this broad 

reading of CIA authority might be contrary to congressional 

intent” and has “invited Congress to ‘take the necessary 

legislative action to rectify’ that disparity.” Id. (quoting 

Hunt, 981 F.2d at 1120); see also Minier v. CIA, 88 F.3d 796, 

804 (9th Cir. 1996). 
19 

of 1947”); see also id. at 115; Count Four Vaughn Index, ECF No. 

14-8 at 1, 4, 24, 55. That is not all the CIA provided, however. 

First, the CIA explained that the information it withheld 

under the National Security Act related to “covert employees and 

facilities as well as the limitations, capabilities, successes, 

weaknesses or other issues pertaining to polygraph 

examinations.” CIA Decl. ¶ 43. Release of this information, the 

agency asserts, “would expose sources and methods of the agency, 

not simply in the personnel screening settings, but also the 

capabilities and limitations of the polygraph in all 

applications.” Id. In brief, disclosure of the withheld 

information “would reveal critical details about the polygraph 

program that would compromise the effectiveness of this method.” 

Suppl. CIA Decl. ¶ 8; see also id. ¶¶ 9–11. 

The Agency also specified how the particular documents and 

withholdings relate to that program. Each document is identified 

and described in ways that clarify its relation to the CIA’s 

concerns. See Count Three Vaughn Index, ECF No. 14-7 at 9 

(“Polygraph Procedures Manual,” which “discusses authorities, 

code of ethics, examiner standards, and other topics with regard 

to polygraph examinations”; the withheld information “relates to 

the polygraph techniques, internal procedures and analysis”); 

id. at 115 (regulation related to the “Administration of 

Polygraph Examinations” which is described as “establish[ing] 
20 

the policy for the administration of polygraph examinations”); 

Count Four Vaughn Index, ECF No. 14-8 at 1 (report regarding 

“[u]se of polygraph in security screening”); id. at 4 (report 

entitled “The Value of the Polygraph in CIA’s Personnel Security 

Program,” from which CIA redacted “information that would reveal 

intelligence sources and methods as they are relate[d] to 

polygraph screening procedures”); id. at 24 (index for a report 

entitled “Validity and Reliability of the Polygraph as a Tool 

for Identifying Deception and Nondeception,” which was written 

“to measure the validity and technical reliability of polygraph 

examinations”); id. at 55 (report on “CIA’s Use of Polygraphy in 

Personnel Screening,” which “goes into specific detail about 

reliance on polygraph examinations, the polygraph process, 

reinvestigation, training, and recommendations”). 

Moreover, the CIA’s supplemental declaration provided 

additional description of the particular information that was 

redacted from individual documents. See Suppl. CIA Decl. ¶¶ 8-11 

(material withheld from the documents included “internal agency 

security regulations, details about polygraph examinations 

including sample questions, analysis of testing data, and the 

contents of examination reports”; “specifics on the accuracy of 

certain areas tested during the exam”; “specific details about 

the CIA’s polygraph program, including in depth analysis of the 

Agency’s security processes and assessments of test techniques”; 
21 

“statistics and anecdotal and empirical evidence . . . detailing 

the utility of and benefits derived from the program”; and “the 

organization and functions of the polygraph program and . . . 

the utility of this method in different settings”). 

The CIA also explained why its polygraph program is itself an 

intelligence source and method. Polygraphs are “a key 

intelligence method used in the Agency’s security processes.” 

They are “a tool for obtaining information and assessing 

deception in the course of applicant and personnel screening 

evaluations and counterintelligence investigations,” form part 

of the agency’s method for “determining an employee’s 

eligibility for initial or continued access to classified 

information,” and help “reduce the Agency’s vulnerability to 

counterintelligence risks.” Id. ¶ 4. Giving “substantial weight 

to the CIA’s affidavits,” Larson, 565 F.3d at 865, as the Court 

must, this is sufficient to establish that the withheld 

information relates to the detailed workings, efficacy, and 

weaknesses of a CIA intelligence source and method.8 Accordingly, 

 

8

 Courts have held that similar topics relate to intelligence 

sources and methods under the National Security Act. See Blazy 

v. Tenet, 979 F. Supp. 10, 23-24 (D.D.C. 1997) (upholding the 

Exemption 3 withholding of polygraph records based in part on 

agency’s explanation “that plaintiff’s polygraphs constitute 

intelligence methods and therefore cannot be released”). 
22 

the CIA’s withholdings under Section 102A(1)(i) of the National 

Security Act were justified.9 

2. Section 6 of the Central Intelligence Act of 1949 

The remaining Exemption 3 withholdings were done pursuant to 

Section 6 of the Central Intelligence Act, which provides: 

[I]n order further to implement section 3024(i) of 

this title that the Director of National Intelligence 

shall be responsible for protecting intelligence 

sources and methods from unauthorized disclosure, the 

Agency shall be exempted from . . . the provisions of 

any other law which require[s] the publication or 

disclosure of the organization, functions, names, 

official titles, salaries, or numbers of personnel 

employed by the Agency. 

50 U.S.C. § 3507. Plaintiff agrees that Section 6 protects 

information about CIA employees, such as their names and 

 

9

 Plaintiff cites Berman, 501 F.3d 1136 for the proposition that 

the CIA cannot invoke the Act solely “because it uses polygraphs 

as part of its work.” Opp. at 12. That case is entirely 

distinguishable. In Berman, the CIA relied on the National 

Security Act to prevent disclosure of the President’s Daily 

Briefs because they were “part of the process by which the CIA 

advises the President . . . and therefore intelligence decisions 

are directly affected by [them].” 501 F.3d at 1146 (quotation 

marks omitted). The Ninth Circuit rejected this argument because 

the Briefs “are nothing more than simple memoranda the CIA uses 

to communicate with the President.” Id. The Ninth Circuit’s 

statement that “[i]f we were to accept the CIA’s logic, then 

every written CIA communication . . . would be a protected 

‘intelligence method’ because it is a method that CIA uses in 

doing its work,” id., is not applicable here, where the CIA is 

seeking to protect information related to its polygraph program, 

a method by which the agency obtains “information and assess[es] 

deception in the course of applicant and personnel screening 

evaluations and counterintelligence investigations.” Suppl. CIA 

Decl. ¶ 4. 
23 

specific job functions. See Opp. at 14, 20 n.12.10 Although it is 

possible that all of the information withheld by the CIA under 

the CIA Act relates directly to agency personnel in this manner, 

the Court cannot conclude as much on the current record and 

therefore addresses the parties’ competing interpretations of 

Section 6. 

The dispute boils down to a simple question: does the phrase 

“of personnel employed by the Agency” modify each item in the 

list of information that Section 6 exempts from disclosure or 

only the final item? The plaintiff argues that it modifies each 

item, meaning that Section 6 exempts from disclosure “the 

organization of personnel employed by the CIA; the functions of 

personnel employed by the CIA; the names of personnel employed 

by the CIA; the official titles of personnel employed by the 

CIA; the salaries of personnel employed by the CIA; and the 

numbers of personnel employed by the CIA.” Opp. at 14–15 

(emphases omitted). The defendants read the phrase to modify 

only the final item in the list. See Reply at 12. 

 

10 Although she does not challenge the withholding of employee 

names, plaintiff argues that the Agency’s declaration is “a 

textbook example of ‘general sloppiness’” because it mentions 

that CIA employee names are present in forty-nine documents, but 

the CIA claimed FOIA Exemption 6’s protection for such 

information in only two instances. See Opp. at 14. The CIA 

clarified that it “does not typically assert Exemption 6 to 

protect the identities of its own employees, and instead relies 

on the CIA Act to do so.” CIA Suppl. Decl. ¶ 7 n.4. The two 

Exemption 6 withholdings involved the names of non-employees. 

See Defs.’ Reply at 11.
24 

The text of Section 6 does not readily bear the defendants’ 

interpretation. If the phrase “of personnel employed by the 

Agency” modifies only the final term in the list, the provision 

becomes difficult to understand because it would exempt from 

disclosure: “the organization,” “the functions,” “the names,” 

“the official titles,” “the salaries,” and “the numbers of 

personnel employed by the agency.” The CIA appears to believe 

that the other terms should be read as modified by the phrase 

“of the agency,” but that phrase does not appear in Section 6. 

Under that reading of Section 6, moreover, many items in the 

list would be rendered absurd (e.g. “the salaries [of the 

Agency],” “the names [of the Agency],” and “the official titles 

[of the Agency]”). Nor can the fact that Section 6 is entitled 

“Protection of nature of Agency’s functions,” 50 U.S.C. § 3507, 

overcome the provision’s plain language. “[A] statute’s title 

may not undo that which the statute itself makes plain.” United 

States v. Waters, 158 F.3d 933, 938 (6th Cir. 1998).11

 

11 Because reading Section 6 as defendant suggests renders the 

provision unclear, the last antecedent rule—that “a limiting 

clause or phrase . . . should ordinarily be read as modifying 

only the noun or phrase that it immediately follows,” Barnhart 

v. Thomas, 540 U.S. 20, 26 (2003)—does not apply. As the D.C. 

Circuit recently reiterated, that rule may “be overcome by other 

indicia of meaning.” Emory v. United Air Lines, 720 F.3d 915, 

926 (D.C. Cir. 2013). Similarly, the CIA’s suggestion that it is 

entitled to deference, Reply at 15–16, is unavailing because its 

interpretation is at odds with the plain language of Section 6. 
25 

The Court does not write on a blank slate, moreover. Two 

Judges of this Court recently rejected identical arguments made 

by the CIA. See Whitaker v. CIA, No. 12-316, 2014 WL 914603, at 

*5–7 (D.D.C. Mar. 10, 2014); Nat’l Sec. Counselors v. CIA, 960 

F. Supp. 2d 101, 174-85 (D.D.C. 2013). There is also a long 

history of decisions from the D.C. Circuit limiting the scope of 

Section 6. See Nat’l Sec. Counselors, 960 F. Supp. 2d at 175-76. 

First, as “an outer limit,” id. at 175, the Circuit has held 

that Section 6 “does not ‘allow[] the [CIA] to refuse to provide 

any information at all about anything it does.’” Id. (quoting 

Phillippi v. CIA, 546 F.2d 1009, 1015 n.14 (D.C. Cir. 1976)) 

(alterations in original). The provision thus stands in contrast 

to Section 6 of the National Security Agency Act, 50 U.S.C. § 

3605(a), which protects from disclosure “the organization or any 

function of the National Security Agency, or any information 

with respect to the activities thereof, or of the names, titles, 

salaries, or number of the persons employed by such agency.” See 

Hayden v. NSA, 608 F.2d 1381, 1389-90 (D.C. Cir. 1979) (noting 

that the National Security Agency Act is “broader” than Section 

6 because it protects “‘any information with respect to the 

activities’ of the NSA”). 

The D.C. Circuit has also made clear that Section 6 “applies 

only to ‘information about [the CIA’s] internal structure.’” 

Nat’l Sec. Counselors, 960 F. Supp. 2d at 175 (quoting 
26 

Phillippi, 546 F.2d at 1015 n.14) (alteration in original). The 

CIA repeatedly seizes on the use of the phrase “internal 

structure” as support for interpreting the term to cover 

anything related to the organization or function of the CIA. See 

Reply at 10–12. The D.C. Circuit, however, has made clear that 

information related to the Agency’s structure is protected only 

to the extent it relates to “information concerning the Agency’s 

personnel.” Linder v. Dep’t of Defense, 133 F.3d 17, 25 (D.C. 

Cir. 1998). Thus, as Judge Howell found in National Security 

Counselors, Section 6, “standing alone, only protects 

information on the CIA’s personnel and internal structure, such 

as the names of personnel, the titles and salaries of personnel, 

or how personnel are organized within the CIA.” 960 F. Supp. 2d 

at 175 (quotation marks and citation omitted). 

The Agency argues that even if Section 6’s protections apply 

only to personnel information, information about the functions 

and organization of the CIA necessarily relates to the function 

and organization of its employees. Reply at 12–13. Were there no 

distinction between the function and organization of agency 

personnel and the function and organization of the Agency, 

however, Section 6 would “encompass any kind of activity 

appropriately carried out by the CIA.” Nat’l Sec. Counselors, 

960 F. Supp. 2d at 176 (holding that the CIA’s argument would 

“strip[] the word personnel of any real meaning”) (quotation 
27 

marks omitted). Thus, although information related to the 

function and organization of the Agency may relate directly to 

the function or organization of agency personnel, it does not 

necessarily do so. This comports with “the plain text of the 

statute[, which] limits protection from disclosure only to the 

functions and organization pertaining to or about personnel,” 

id., and the D.C. Circuit’s view that Section 6 does not exempt 

from disclosure “any information at all about anything [the CIA] 

does.’” Phillippi, 546 F.2d at 1015 n.14.12 Accordingly, Section 

6’s protection applies only when the withheld information 

relates to “the CIA’s personnel and internal structure, such as 

the names of personnel, the titles and salaries of personnel, or 

how personnel are organized within the CIA.” Nat’l Sec. 

 

12 Illustrative of why “the functions and organization of 

personnel” has a narrower meaning than “the functions and 

organization of the agency” is the Supreme Court’s 

interpretation of the adjective “personnel” as used in FOIA’s 

Exemption 2. See Milner v. Dep’t of Navy, 131 S. Ct. 1259 

(2011). Exemption 2 protects from disclosure information 

“related solely to the internal personnel rules and practices of 

an agency.” 5 U.S.C. § 552(b)(2). In Milner, the Court held that 

the term “personnel” limits the types of “rules and practices” 

that are covered by Exemption 2 to those that relate to humanresources functions, rather than a broader set of agency rules 

and practices. Id. at 1264. Reading the term “personnel” in 

Section 6 to effectively mean “agency” would similarly do 

violence to the word’s ordinary meaning. 
28 

Counselors, 960 F. Supp. 2d at 175 (quotations marks and 

citations omitted); see also Whitaker, 2014 WL 914603, at *5.13

Under this interpretation of Section 6, the Court cannot 

currently say whether the CIA’s withholdings were proper. The 

CIA’s initial declaration described the information withheld 

under the CIA Act as including: (1) “the names of CIA 

employees,” their “official titles,” and “information disclosing 

their organizational functions”; (2) “contact information for 

CIA personnel”; (3) “internal CIA organizational data, including 

file paths”; (5) “internal taskings which would reveal internal 

document processing methods, as well as the organization of and 

capabilities related to the CIA’s decentralized information 

management systems”; and (6) “internal CIA organizational and 

functional information.” CIA Decl. ¶ 41. In its supplemental 

declaration, the CIA asserted that “the sole instances in which 

the CIA has relied exclusively upon the CIA Act concern internal 

office and distribution information,” including “the internal 

 

13 The Court is not persuaded by earlier decisions that arguably 

condoned the CIA’s interpretation. Those decisions analyzed the 

interpretive question very briefly and some appeared to rely 

simultaneously on the broad protections provided by the National 

Security Act. See Inst. For Pol’y Studies v. CIA, 885 F. Supp. 

2d 120, 146–47 (D.D.C. 2012); Schoenman v. FBI, 841 F. Supp. 2d 

69, 83–84 (D.D.C. 2012); ACLU v. Dep’t of Justice, 808 F. Supp. 

2d 280, 288–89 (D.D.C. 2011), rev’d on other grounds, 710 F.3d 

422 (D.C. Cir. 2013); McGehee v. U.S. Dep’t of Justice, 800 F. 

Supp. 2d 220, 231–32 (D.D.C. 2011); James Madison Project v. 

CIA, 607 F. Supp. 2d 109, 125–27 (D.D.C. 2009); Riquelme v. CIA, 

453 F. Supp. 2d 103, 111 (D.D.C. 2006).
29 

divisions within the Agency, internal telephone numbers, and 

classification dissemination controls” as well as other markings 

“involving internal office and distribution information.” CIA 

Suppl. Decl. ¶ 6. The CIA also claims that “the National 

Security Act applies to the vast majority of information for 

which the CIA Act is claimed.” Id. These declarations 

nonetheless imply that the withheld information may have related 

not only to personnel, but also to the organization of the CIA 

itself. To obtain summary judgment, the CIA must provide a 

clearer description of the withheld information. Moreover, to 

the extent that withheld information relates to “internal CIA 

organizational data, including file paths,” “internal document 

processing methods,” and “the organization of and capabilities 

related to the CIA’s decentralized information management 

systems,” CIA Decl. ¶ 41, the Agency must provide a more 

detailed description to justify withholding that information as 

related to the organization and functions of agency personnel. 

See Nat’l Sec. Counselors, 960 F. Supp. 2d at 179 (“Shorn of the 

gratuitous addition of the words ‘internal’ and 

‘organizational,’ it appears that the information . . . is 

information about how the CIA manages, stores, and retrieves 

information.”).14

 

14 It is not clear whether the information that was withheld 

pursuant to the CIA Act alone was also subject to an Exemption 
30 

C. The DIA’s Withholdings (Counts Seven and Nine). 

Plaintiff challenges certain of the DIA’s withholdings with 

respect to six documents. She challenges withholdings of 

polygraph information under Exemption 3 from documents V-21 and 

V-30; thermal images from document V-21 pursuant to Exemptions 3 

and 6; and Exemption 7(E) withholdings from documents V-21, V27, V-29, V-70, and V-71. 

1. Exemption 3 Withholdings Pursuant to the National 

Security Act. 

The DIA’s Exemption 3 withholdings from V-21 and V-30 were all 

done pursuant to Section 102A(i)(1) of the National Security 

Act. As discussed in Part III.B.1, supra, that provision exempts 

from disclosure information related to “intelligence sources and 

methods,” 50 U.S.C. § 3024(i)(1), and grants “very broad 

authority to protect all sources of intelligence information 

from disclosure.” Sims, 471 U.S. at 168–69. As long as the 

agency provides “justifications for nondisclosure with 

reasonably specific detail, demonstrate[s] that the information 

withheld logically falls within the claimed exemptions, and 

show[s] that the justifications are not controverted by contrary 

evidence in the record or by evidence of [agency] bad faith,” 

 

One withholding. Accordingly, the parties’ disputes regarding 

Exemption One may be rendered moot by the Court’s ruling 

regarding the National Security Act and the Court declines to 

address those arguments at this time. 
31 

Berman, 501 F.3d at 1140, the Court must “accord[] substantial 

weight to the [agency’s] affidavits.” Larson, 565 F.3d at 865. 

The plaintiff claims that the DIA’s Vaughn index and 

declarations are vague and conclusory. See Opp. at 22-23. In 

fact, the DIA provided sufficient information to show that it is 

entitled to summary judgment. The DIA’s Vaughn Index states that 

V-21 is entitled “National Center for Credibility Assessment, 

Alternative Credibility Assessment” and that the National 

Security Act was relied upon “to protect intelligence sources 

and methods.” DIA Vaughn Index, ECF No. 14-10 at 1. V-30 is 

entitled “National Center for Credibility Assessment, Continuing 

Education PDD,” and the National Security Act was relied upon 

“to protect sensitive information on the population of federal 

polygraph examiners throughout government agencies; how 

polygraph examiners are trained and the locations where the 

training occurs.” Id. at 4. 

The DIA’s supplemental declaration provided additional detail. 

It explained that the National Center for Credibility 

Assessment, the entity to which both V-21 and V-30 relate, 

“conducts developmental research and provides academic training 

to the polygraph programs within the United States Intelligence 

Community,” which then “utilize[s] the . . . technology for both 

national security screening and investigative purposes.” Second 

Declaration of Alesia Y. Williams (“Suppl. DIA Decl.”), ECF No. 
32 

27-2 ¶ 2. The DIA further stated that the National Security Act 

“was specifically cited to protect intelligence sources and 

methods within the Intelligence Community that are related to 

the use of polygraph technology,” which “is used by DIA and 

other agencies for their intelligence activities and to asses 

employees’ and potential employees’ suitability for access to 

classified materials.” Id. ¶ 4. Finally, the DIA declared that 

“it is not possible to provide any additional information 

without compromising the sources and methods.” Id. 

This is sufficient to establish that the withheld information 

relates to research and training programs of the National Center 

for Credibility Assessment regarding polygraphs that are used by 

the intelligence community for security and counterintelligence 

purposes. In view of the deference owed an agency under the 

National Security Act, the Court cannot disagree that the DIA’s 

polygraph program is an intelligence source and method and that 

the withheld information relates to that program.15 

2. Exemption 3 and 6 Withholdings of Thermal Images. 

 

15 Moreover, absent evidence of agency bad faith, the Court must 

also consider the agency’s declaration that providing any 

further detail would disclose the very information it seeks to 

protect. See Sims, 471 U.S. at 179 (noting that “[i]t is 

conceivable that the mere explanation of why information must be 

withheld can convey valuable information to a foreign 

intelligence agency”). 
33 

Plaintiff also challenges the DIA’s withholding of thermal 

images from Document V-21. The DIA explained that the images are 

“photographs of Department of Defense employees or contractor 

personnel taken for training purposes with a thermal camera . . 

. to demonstrate the potential use of these sorts of images in 

the credibility assessment process.” DIA Suppl. Decl. ¶ 5. These 

images were withheld pursuant to Exemption 6, which protects 

from disclosure “personnel and medical files and similar files 

the disclosure of which would constitute a clearly unwarranted 

invasion of personal privacy.” 5 U.S.C. § 552(b)(6).16 Exemption 

6 covers any “[g]overnment records on an individual which can be 

identified as applying to that individual.” U.S. Dep’t of State 

v. Wash. Post. Co., 456 U.S. 595, 602 (1982) (quotation marks 

omitted); see also Judicial Watch, Inc. v. FDA, 449 F.3d 141, 

152 (D.C. Cir. 2006) (Exemption 6 applies “to exempt not just 

files, but also bits of personal information . . . the release 

of which would create a palpable threat to privacy”) (quotation 

marks and alterations omitted). The Court determines whether 

Exemption 6 applies by “weigh[ing] the privacy interest in nondisclosure against the public interest in the release of the 

records in order to determine whether, on balance, the 

 

16 The images were also withheld under 10 U.S.C. § 424, which 

exempts from disclosure “the organization or any function of 

[the DIA]” and “the number of persons employed by or assigned or 

detailed to [the DIA] or the name, official title, occupational 

series, grade, or salary of any such person.” 
34 

disclosure would work a clearly unwarranted invasion of personal 

privacy.” Lepelletier v. FDIC, 164 F.3d 37, 46 (D.C. Cir. 1999) 

(quotation marks omitted). 

“The only relevant public interest . . . is the extent to 

which disclosure of the information sought would shed light on 

an agency’s performance of its statutory duties or otherwise let 

citizens know what their government is up to.” Id. (quotation 

marks and alterations omitted). Here, the public interest in 

disclosure of the thermal images is minimal because the “same 

type of image could be created with any thermal camera, 

including through widely-available smart phone ‘apps’ that 

generate images similar to those being withheld.” Suppl. DIA 

Decl. ¶ 11. “[T]he public interest is not furthered ‘by 

disclosure of information about private citizens that is 

accumulated in various governmental files but that reveals 

little or nothing about an agency’s own conduct.’” People for 

the Am. Way v. Nat’l Park Serv., 503 F. Supp. 2d 284, 304 

(D.D.C. 2007) (quoting U.S. Dep’t of Justice v. Reporters Comm. 

For Freedom of the Press, 489 U.S. 749, 773 (1989)). 

Privacy concerns outweigh this minimal public interest. “The 

privacy interest in nondisclosure encompasses an individual’s 

control of personal information and is not limited to that of an 

embarrassing or intimate nature.” Id. (citing Wash. Post Co., 

456 U.S. at 600). Images of an individual may implicate a 
35 

privacy interest under Exemption 6. See, e.g., Advocates for 

Highway & Auto Safety v. Fed. Highway Admin., 818 F. Supp. 2d 

122, 129 (D.D.C. 2011). Indeed, plaintiff “concedes that 

photographs of employees may be legitimately withheld,” but 

argues that thermal images are different because no employee may 

be identified from the images. See Opp. at 23-24. The DIA 

stated, however, that the images “could reasonably lead to the 

personal identification of these . . . employees or contractor 

personnel.” DIA Suppl. Decl. ¶ 5. 

Four of the images are such that “[a] viewer is easily able to 

identify the gender, age, facial shape, and facial hair of the 

subject” and “can easily make out more detailed facial features 

that make each person unique.” Id. ¶ 7. “These four images 

provide the viewer with an image that is . . . similar to a 

regular photograph, but with a detailed color overlay that shows 

the measurement of the heat emanating from the subjects’ skin.” 

Id. Three other images, while of lesser quality “still allow a 

viewer to identify gender, basic facial features, facial hair, 

and the subject’s general age.” Id. ¶ 8. Ultimately, the DIA 

stated, “it would still be quite easy for a viewer to use the 

images’ personally identifying information to discover the 

identity of each of these [individuals].” Id. ¶ 9. 

Nor are the images being withheld solely to prevent unwanted 

disclosure of the individuals’ photographs. As the DIA 
36 

explained, disclosure of the identities of those depicted in the 

images would “allow[] outside actors to identify employees of 

this Agency who may be working to further the mission of the 

Intelligence Community; and, the release could reasonably be 

expected to damage the individual privacy of the employees or 

contractors by disclosing their identities to the general 

public.” Id. ¶ 6. At a minimum, this creates a moderate privacy 

interest and “something, even a modest privacy interest, 

outweighs nothing every time.” Nat’l Ass’n of Retired Fed. Emps. 

v. Horner, 879 F.2d 873, 879 (D.C. Cir. 1989).17

3. Exemption 7(E) Withholdings. 

Plaintiff also challenges the DIA’s withholding of polygraphrelated information pursuant to Exemption 7(E) from V-27, V-29, 

V-70, and V-71. Exemption 7(E) protects “records or information 

compiled for law enforcement purposes . . . to the extent that 

the production of such law enforcement records or information . 

. . would disclose techniques and procedures 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). An agency does not bear “a highly 

 

17 The images were also properly withheld under 10 U.S.C. § 424, 

which is “a statute that falls within the scope of Exemption 3.” 

Physicians for Human Rights v. U.S. Dep’t of Defense, 778 F. 

Supp. 2d 28, 36 (D.D.C. 2011). Section 424 “clearly aims to 

protect the identity of DIA personnel” and is therefore a proper 

basis for withholding the images. Larson v. Dep’t of State, No. 

2-cv-1937, 2005 WL 3276303, at *15 (D.D.C. Aug. 10, 2005). 
37 

specific burden of showing how the law will be circumvented”; 

rather, “exemption 7(E) only requires that [the agency] 

‘demonstrate[] logically how the release . . . might create a 

risk of circumvention of the law.’” Mayer Brown LLP v. IRS, 562 

F.3d 1190, 1194 (D.C. Cir. 2009) (quoting PHE, Inc. v. Dep’t of 

Justice, 983 F.2d 248, 251 (D.C. Cir. 1993)) (second alteration 

in original). 

The DIA maintains that the information withheld under 

Exemption 7(E) consists of “details concerning the use of 

polygraph technology to test the credibility of employees 

involved in specific incidents in the federal workplace” the 

release of which “could diminish the effectiveness of the 

polygraph examination as an investigative tool by allowing the 

general public to discern when DIA is likely to utilize this 

tool.” DIA Decl. ¶ 37. Moreover, at least some of the 

information withheld relates to “investigative techniques that 

were used in an espionage investigation.” Id. ¶ 39. 

More specifically, V-21, V-27, and V-29 are “training 

materials, which are used to teach polygraph research, 

standards, policies and procedures” and the withheld information 

“could be used to circumvent the polygraph examination itself” 

and potentially diminish “the effectiveness of the polygraph 

examination as a critical law enforcement and national security 

screening tool.” DIA Suppl. Decl. ¶ 12. V-70 and V-71, reports 
38 

of Dr. Barland, both include “a significant amount of sensitive 

information concerning the use of polygraph countermeasures that 

is unknown to the public.” Id. ¶ 13. 

Plaintiff argues that this information is not subject to 

Exemption 7(E) because the information does not pertain to the 

use of polygraphs during a criminal investigation. See Opp. at 

24. The Court finds that plaintiff’s proposed distinction 

between criminal investigations and personnel-screening has no 

legal basis. Indeed, Judge Wilkins rejected an identical 

argument in Sack v. U.S. Dep’t of Defense, No. 12-cv-1754, 2013 

WL 6640776, at *8 (D.D.C. Dec. 13, 2013). There, the Court 

upheld Exemption 7(E) withholdings of polygraph-related 

information because disclosure of information regarding the 

DIA’s involvement in reviewing and testing other agencies’ 

polygraph programs would contribute to the circumvention of 

polygraphs. Id. The Court rejected plaintiff’s distinction 

“between polygraph examinations conducted as part of a criminal 

investigation . . . and employment-related polygraph programs.” 

Id. Similarly, in Morley v. CIA, the D.C. Circuit applied 

Exemption 7(E) to information “revealing security clearance 

procedures [that] could render those procedures vulnerable and 

weaken their effectiveness at uncovering background information 

on potential candidates.” 508 F.3d 1108, 1129 (D.C. Cir. 2007). 

The Circuit found that “[b]ackground investigations conducted to 
39 

assess an applicant’s qualification . . . inherently relate to 

law enforcement.” Id. at 1128–29. There is therefore no basis to 

exclude information from coverage of Exemption 7(E) based solely 

on the fact that it is used in personnel-screening activities. 

Plaintiff argues alternatively that the information cannot 

lead to circumvention of law enforcement techniques because it 

is outdated and there is “no reason to presume that those 

vulnerabilities [it identifies] have not been subsequently 

corrected. Opp. at 25–26. The DIA declared that the research 

discussed in the withholdings “remains an active part” of its 

“efforts to detect and prevent the use of polygraph 

countermeasures.” DIA Suppl. Decl. ¶ 13. Even if some of the 

findings have been used to improve polygraph practices, “harm 

would be caused to the overall process were it to be disclosed 

precisely which . . . vulnerabilities have been suitably 

addressed and which remain a critical task.” Id. ¶ 14. These 

statements are sufficient to meet the agency’s burden of showing 

that release of the information could lead to circumvention of 

current law-enforcement techniques. 

D. The DODIG’s Withholdings (Count Twelve). 

Plaintiff’s sole challenge to the DODIG’s withholdings asserts 

that it invoked Exemption 7(E) in a conclusory manner and should 

be “require[d] . . . to supply actual particularized evidence.” 

Opp. at 27. The DODIG withheld portions of Documents IG-1 and 
40 

IG-2, and all of Documents IG-3 and IG-4. See DODIG Vaughn 

Index, ECF No. 14-12 at 2-3. Three of the four documents—all but 

IG-3—are identified as having been authored by the Defense 

Criminal Investigative Service, id., an arm of the DODIG that 

utilizes polygraphs in its investigations. See Declaration of 

Jeanne Miller (“DODIG Decl.”), ECF No. 14-11 ¶¶ 4(a), 47. The 

titles of all four documents shed further light on their 

relation to DODIG’s investigative functions. See DODIG Vaughn 

Index, ECF No. 14-12 at 2-3 (IG-1 “Psychophysiological Detection 

of Deception (PDD) Examinations”; IG-2 “Pyschophysiological 

Detection of Deception Program (PDD) Operational Manual”; IG-3 

“Utilization of Polygraph in Criminal Intelligence Operations”; 

IG-4 “DCIS Form PDD4-DCIS Polygraph Testing Techniques.”). 

The Vaughn index also states that each withholding was done 

because the information “would disclose investigative techniques 

and procedures, specifically, polygraph techniques used by 

DCIS.” Id. Finally, in its declaration, the DODIG asserts that 

“[i]nformation contained in [the withheld documents], which is 

not generally known to the public, is designed solely to guide 

DCIS personnel in the use of polygraphs in support of 

investigations” and that “[t]he redacted material identifies 

specific applications of techniques and procedures used in 

polygraph matters and disclosure could enable circumvention of 

[the] polygraph test by others.” DODIG Decl. ¶ 47. Moreover, 
41 

DODIG states, “[p]ublic release of that information could 

possibly benefit those attempting to reduce the effectiveness of 

the polygraph or violate the law and avoid detection.” Id. This 

description meets the agency’s burden by showing that the 

withholdings protect information the release of which could lead 

to circumvention of the criminal-investigation activities of the 

Defense Criminal Investigative Service. 

E. The FBI’s Withholdings (Count Fourteen). 

Plaintiff’s sole challenge to the FBI’s withholdings relates 

to a single Exemption 5 withholding. The FBI released that 

information to plaintiff after learning that it “was actually 

released by FBI in response to another of Sack’s requests.” Opp. 

at 27 (emphasis omitted); see Second Declaration of David M. 

Hardy, ECF No. 27-3 ¶ 5. Because plaintiff does not challenge 

any other withholdings, this claim is moot.18

F. Segregability. 

 

18 Plaintiff’s request that the Court “issue a written finding 

that the circumstances surrounding the withholding raise 

questions whether agency personnel acted arbitrarily or 

capriciously with respect to the withholding,” Opp. at 28, is 

DENIED. For one, the Court has neither “order[ed] the production 

of any agency records” in connection with this dispute, nor 

“assesse[d] against the United States reasonable attorney fees 

and other litigation costs,” 5 U.S.C. § 552(a)(4)(F)(i), both of 

which are necessary prerequisites to the relief plaintiff seeks. 

See Landmark Legal Found. v. EPA, 959 F. Supp. 2d 175, 184 n.8 

(D.D.C. 2013). Moreover, plaintiff has not demonstrated that the 

FBI’s withholding was arbitrary or capricious. 
42 

Before granting summary judgment, the Court must determine 

whether “[a]ny reasonably segregable portion of a record” can 

“be provided to any person requesting such record after deletion 

of the portions which are exempt.” 5 U.S.C. § 552(b). “So 

important is this requirement that ‘[b]efore approving the 

application of a FOIA exemption, the district court must make 

specific findings of segregability regarding the documents to be 

withheld.” Elec. Frontier Found. v. U.S. Dep't of Justice, 826 

F. Supp. 2d 157, 173 (D.D.C. 2011) (quoting Sussman v. U.S. 

Marshals Serv., 494 F.3d 1106, 1116 (D.C. Cir. 2007)) (emphasis 

in original). The Court, in fact, has “an affirmative duty to 

consider the segregability issue sua sponte.” Juarez v. Dep’t of 

Justice, 518 F.3d 54, 60 (D.C. Cir. 2008) (quotation marks 

omitted). 

In this Circuit, “non-exempt portions of a document must be 

disclosed unless they are inextricably intertwined with exempt 

portions.” Mead Data Cent., Inc. v. U.S. Dep't of the Air Force, 

566 F.2d 242, 260 (D.C. Cir. 1977). The agency must “‘describe 

what proportion of the information in the documents,’ if any, 

‘is non-exempt and how that material is dispersed through the 

documents.’” Elec. Frontier Found., 826 F. Supp. 2d at 174 

(quoting Mead Data, 566 F.2d at 261) (alterations omitted). Once 

it does so, the agency is “entitled to a presumption that it 

complied with the obligation to disclose reasonably segregable 
43 

material.” Hodge v. FBI, 703 F.3d 575, 582 (D.C. Cir. 2013) 

(quotations marks and alterations omitted). This presumption 

“must be overcome by some ‘quantum of evidence’ by the 

requester.” Judicial Watch, Inc. v. U.S. Dep’t of Justice, No. 

12-1350, 2014 WL 794220, at *12 (D.D.C. Feb. 28, 2014) (quoting 

Sussman, 494 F.3d at 1117). The Court therefore must analyze the 

evidence of non-segregability presented by the DIA and DODIG.19 

The DIA declaration asserts: 

I have carefully reviewed Attorney General Holder’s 

memo . . . which encourages agencies to make 

discretionary disclosures and directs agencies to 

segregate and release nonexempt information. The 

documents were carefully reviewed for reasonably 

segregable information. I have determined that there 

is no reasonably segregable information that can be 

released to the plaintiff.

DIA Decl. ¶ 40. The declaration confirms that the agency 

conducted a careful review. The partial withholdings from 

documents V-21, V-27, V-29, and V-30 are described in sufficient 

detail to indicate that the agency withheld information directly 

related to the reason for invoking an exemption. See DIA Suppl. 

Decl. ¶¶ 4–5, 7–8, 12. 

The DIA’s withholding in full of V-70 and V-71 was justified 

by “affidavits that show with reasonable specificity why 

documents withheld pursuant to a valid exemption cannot be 

 

19 Because the Court upholds only some of the CIA’s withholdings 

at this time, and it is not clear what information was withheld 

solely pursuant to the CIA Act, the Court is currently unable to 

conduct a segregability analysis as to the CIA’s withholdings. 
44 

further segregated.” Juarez, 518 F.3d at 61. The DIA determined 

that V-70 and V-71 “each contain[] a significant amount of 

sensitive information concerning the use of polygraph 

countermeasures that is unknown to the public” and “[t]he whole 

body of research discussed in documents V-70 and V-71 remains an 

active part of the [agency’s] efforts to detect and prevent the 

use of polygraph countermeasures.” DIA Suppl. Decl. ¶ 13. The 

DIA also concluded that, even if some of the vulnerabilities 

identified in the articles have been rectified, “harm would be 

caused to the overall process were it to be disclosed precisely 

which potential[] vulnerabilities have been suitably addressed 

and which remain a critical risk.” Id. ¶ 14. For this reason, 

“it is . . . not possible to segregate certain information from 

either of these two articles for release to plaintiff.” Id.

The DODIG declaration states: 

I have carefully reviewed Attorney General Holder’s 

memo . . . which encourages agencies to make 

discretionary disclosures and directs agencies to 

segregate and release nonexempt information. The 

documents were carefully reviewed for reasonably 

segregable information. I have determined that there 

is no additional reasonably segregable information 

that can be released to the Plaintiff. 

DODIG Decl. ¶ 48. This statement, combined with the DODIG 

declaration’s description of the information redacted from the 

partially withheld documents, IG-1 and IG-2, is sufficient. See 

id. ¶ 47. The DODIG did not, however, describe “with reasonable 
45 

specificity” why IG-3 and IG-4 were withheld in full. It may be 

that those documents contain information withheld under 

Exemption 7(E)—or under other exemptions that plaintiff has 

elected not to challenge—that is dispersed such that the 

documents must be withheld in full, but DODIG must “show with 

reasonable specificity why” this is the case. See Juarez, 518 

F.3d at 61 (emphasis added).

IV. PLAINTIFF’S MOTION TO RESCIND 

Also before the Court is plaintiff’s motion to rescind the 

stipulated dismissal of Count Fifteen of her Complaint. That 

Count challenged the DOJ Office of Legal Counsel’s (“OLC”) 

response to a FOIA request plaintiff submitted “for all records 

relating to polygraphs.” Compl. ¶ 84. Plaintiff claims that she 

agreed to the stipulated dismissal of Count Fifteen because OLC 

assured her, through a draft Vaughn index, that it would 

withhold six documents on the basis of the attorney-client and 

deliberative-process privileges. See Mot. to Rescind, ECF No. 30 

at 1. She claims that OLC represented that the documents were 

communications to other agencies and that it had consulted with 

each agency before withholding the document. Id. at 2. 

Plaintiff asserts that her counsel found one of the documents, 

an OLC opinion from 1967, publicly available through the CIA 

Records Search Tool. See id. Plaintiff’s counsel brought this to 

the attention of defendants’ counsel, who confirmed with OLC 
46 

that it had consulted the appropriate agencies in determining 

what to withhold. See id. OLC, however, refused to provide 

plaintiff the level of detail about these consultations that she 

desired. See id. at 2–3. Accordingly, plaintiff moved to rescind 

the stipulated dismissal of Count Fifteen. 

Plaintiff offers no legal basis for her request. Instead, she 

argues the merits of OLC’s withholding, noting that the 

privileges claimed in the OLC’s draft Vaughn index may be waived 

if published by OLC’s client. Id. at 3. According to plaintiff, 

OLC’s failure to learn of the CIA’s publication of the 1967 memo 

demonstrates that OLC’s consultations regarding the other five 

documents cannot be trusted. Id. at 4. 

The Court reads plaintiff’s motion as a request under Federal 

Rule of Civil Procedure 60(b), which provides: 

On motion and just terms, the court may relieve a 

party or its legal representative from a final 

judgment, order, or proceeding for the following 

reasons: (1) mistake, inadvertence, surprise, or 

excusable neglect; (2) newly discovered evidence that, 

with reasonable diligence, could not have been 

discovered in time to move for a new trial under Rule 

59(b); (3) fraud . . . misrepresentation, or 

misconduct by an opposing party; (4) the judgment is 

void; (5) the judgment has been satisfied, released or 

discharged; it is based on an earlier judgment that 

has been reversed or vacated; or applying it 

prospectively is no longer equitable; or (6) any other 

reason that justifies relief. 

The D.C. Circuit has held that voluntary dismissals under Rule 

41(a), like the parties’ Joint Stipulation, may be subject to 
47 

Rule 60(b) motions. See Randall v. Merrill Lynch, 820 F.2d 1317, 

1320 (D.C. Cir. 1987). 

Plaintiff’s failure to provide a legal basis for her request 

complicates matters, but the Court finds that her allegation of 

“a misrepresentation by OLC,” Mot. to Rescind, ECF No. 30 at 1, 

could fall under Rule 60(b)(3), which provides relief for “fraud 

. . . misrepresentation, or misconduct by an opposing party.”20

To obtain relief under this provision, “the burden of proof of 

fraud is on the moving party and . . . fraud must be established 

by clear and convincing evidence.” 11 Charles Alan Wright & 

Arthur R. Miller, Federal Practice and Procedure § 2860 (3d ed. 

2014); see also Tembec, Inc. v. United States, No. 5-2345, 2007 

WL 1169346, at *4 (D.D.C. April 19, 2007) (movant “must 

establish fraud or misconduct, and resulting actual prejudice, 

by clear and convincing evidence”). 

 

20 Plaintiff does not appear eligible for relief under any other 

subsection of Rule 60(b). Her voluntary entrance into the 

stipulation would preclude relief under Rule 60(b)(1). See 11 

Charles Alan Wright & Arthur R. Miller, Federal Practice and 

Procedure § 2858 (3d ed. 2014) (“Voluntary action also may 

prevent a party from seeking relief on the ground of mistake or 

excusable neglect. This includes . . . deliberately adopted 

stipulations, or voluntary dismissals, even when based on 

erroneous facts.”). Subsections (b)(2), (b)(4), and (b)(5) 

cannot provide relief because they address defects in or changed 

circumstances regarding a prior Court judgment. Finally, Rule 

60(b)(6) “should be only sparingly used and may not be employed 

simply to rescue a litigant from strategic choices that later 

turn out to be improvident.” Kramer v. Gates, 481 F.3d 788, 792 

(D.C. Cir. 2007) (quotation marks omitted). 
48 

Plaintiff cannot meet this bar. She establishes only that OLC 

failed to learn that the CIA had previously released the 1967 

Opinion. There is no evidence—much less clear and convincing 

evidence—that this was anything but an oversight in connection 

with negotiations regarding a far-ranging FOIA request. A minor 

oversight, without evidence of affirmative misconduct, does not 

support a finding of fraud. Compare Summers v. Howard Univ., 374 

F.3d 1188, 1193 (D.C. Cir. 2004) (granting relief under Rule 

60(b)(3) where “plaintiffs engaged in repeated, affirmative 

efforts to keep [the relevant information] a secret from [the 

defendant]” and “plaintiffs concede[d] that these acts were 

intentional”). “There must be an end to litigation someday” and 

plaintiff’s strategic decision to stipulate to the dismissal of 

Count Fifteen was the kind of “free, calculated, deliberate 

choice[ that is] not to be relieved from.” Ackermann v. United 

States, 340 U.S. 193, 198 (1950). 

V. CONCLUSION 

For the foregoing reasons, the Court GRANTS IN PART AND DENIES 

IN PART defendants’ motion for summary judgment and DENIES 

plaintiff’s motion to reinstate Count Fifteen. An appropriate 

Order accompanies this Memorandum Opinion. 

SO ORDERED. 

Signed: Emmet G. Sullivan 

 United States District Judge 

 July 10, 2014