UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JASON MOUNT , Plaintiff,

v. KIRSTJEN NIELSEN , Secretary, U.S. Department of Homeland Security , 1 Defendant. Case No. 16-cv-2532 (CRC)

MEMORANDUM OPINION Plaintiff Jason Mount filed a re quest under the Freedom of Info rmation Act (“FOIA”) with the Department of Homela nd Security seeki ng all records he ld by the Department’s Office of the Inspector General (“OIG”) “regarding an a llegation that . . . Supervisory Special Agent Peter Edge lost his official c redentials to a prostitute and th e credentials had to be retrieved by local police.” Mem. P. & A. Supp. P ls.’ Opp’n to Def.’s Mot. S umm. J. (“Pls.’ MSJ”) at 2. The Department responded with a so-called “ Glomar response,” refusing to confirm or deny that it had any records responsive to hi s request. It based its Glomar response on Exemption 7(C) of FOIA. Mem. Supp. Def.’s Mot. Summ. J. (“Def.’s MSJ”) at 1. Th e parties have filed cross motions for summary judgment. B ecause the Department properly asserted its Glomar response, the Court will grant the Department’s motion and deny Mount’s. FOIA was enacted “to promote t he ‘broad disclosure of Governmen t records’ by generally requiring federal agenc ies to make thei r records avai lable to the public on request.” DiBacco v. U.S. Army, 795 F.3d 178, 183 (D.C. Cir. 2015) (citat ion omitted). In order to

1 Secretary Nielsen, as former Secretary Jeh Johnson’s current s uccessor, has been automatically substituted as a party pursuant to Fed. R. Civ. P . 25(d).2 properly balance legitimate govern mental and privacy interests that the release of documents could harm, Congress carved out nin e exemptions from FOIA’s rea ch. See 5 U.S.C. § 552(b). These exceptions are to be narro wly construed, and the agency h as the burden of justifying any withholding it makes under them. DiBacco, 795 F.3d at 183–84. Courts have also recognized that “[i]n certain cases, merely ac knowledging the existence of” records responsive to a FOI A request “would itself ‘cause h arm cognizable under [a] FOIA exception.’” People for the Ethical Treatment of Animals v. NI H (“PETA”), 745 F.3d 535, 540 (D.C. Cir. 2014) (citation omitted) (second alteration in origi nal). In such situations, an agency may issue what is known as a “ Glomar response” refusing to confirm or deny the existence (or non-existence) of any res ponsive records. Id. 2 An agency’s Glomar response is valid “if the fact of the existence or nonexistence of agency records falls withina FOIA exception.” Id. (citation omitted). The Court can rely on agency affidavits to justify a Glomar response, as with other withholdings. Id. Here, the Department has based its Glomar response on Exemption 7(C), which protects from disclosure “records or inf ormation compiled for law enforc ement purposes” whose release “could reasonably be expected to constitute an unwarranted inva sion of personal privacy,” 5 U.S.C. § 552(b)(7)(C). If the t wo requirements of Exception 7( C) are met, then that exemption “authorizes a Glomar response unless the public inter est in disclosure is strong en ough to justify the privacy invasion.” PETA, 745 F.3d at 542.

2 This name is derived from the CIA’s refusal to confirm or deny records related to the Hughes Glomar Explorer , a ship used in a classified CIA project to raise a sunken Sov iet submarine for U.S. intelligence analysis. PETA, 745 F.3d at 54 0.3 The Department contends that it meets the requirements under Ex emption 7(C) and thus its Glomar response was proper. Mount res ponds that the public interest outweighs any privacy interest and disclosure therefore is required. 3 Because the Court agrees that the requirements of Exemption 7(C) are met and that Mount has failed to demonstrate that the public interest is strong enough to outweigh any privac y invasion, the Court will uphold the Department’s Glomar response and grant it summary judgment. As an initial matter, both requi rements for Exemption 7(C) are met here. With respect to the first requirement—that recor ds be compiled for law enforcem ent purposes—the D.C. Circuit has articulated a two-part test: (1) that “the investigatory ac tivity that gave rise to the documents is ‘related to the enforcement of federal laws’” and (2) that “ there is a rational nexus between the investigation at issu e and the agency’s law enforcement duties. ” Jefferson v. Dep’t of Justice, Office of Professional Responsibility, 284 F.3d 172, 177 (D.C. Cir. 2002) (citation omitted). As Assistant Counsel to the Inspector General Jonathan Parnes expl ained in his declaration, “[o]ne of OIG’s statutory responsibilities” is to “investigate[] fraud , waste, and abuse involving DHS programs and operations, including alleged misconduct by DHS em ployees” and to make referrals to the Attorney Gener al if its investigation yields “reasonable grounds to believe there has been a violation of Federal criminal law.” Decl. of Jonath an Parnes ¶ 9. Given this function,

3 Mount also argues that the Depar tment has “not provided any do cumentation whatsoever, not even a Vaughn index so that th[e] Court c ould review the documents In Camera and determine whether redactions may appropriately erase any pr ivacy concerns.” Pls.’ MSJ at 7. But this argument is beside the point. For one, the requir ements to produce a Vaughn index and to identify segregable por tions of documents do not apply w hen a proper Glomar response has been asserted. PETA, 745 F .3d at 540. For another, the re levant question here is not whether the contents of any records, if they exist , would be protected by Exemption 7(C), but rather whether the very existence of the records is a fact prot ected by Exemption 7(C). See, e. g., id. Whether the Department has adequately justified any assert ion that the underlying documents are protected by Exemption 7(C) is thus irrelevant to the Court ’s inquiry here.4 any OIG investigation of a Special Agent losing his credentials to a prostitute would be related to the enforcement of federal laws and connected to OIG’s law enfo rcement duties. 4 The second aspect of Exception 7 (C)—that the release of documen ts would constitute an unwarranted invasion of personal privacy—is also clearly met. The D.C. Circuit “ha[s] repeatedly recognized the ‘substa ntial’ privacy interest held b y ‘the targets of law-enforcement investigations . . . in ensuring t hat their relationship to the investigations remains secret.’” PETA, 745 F.3d at 541 (quoting Rot h v. U.S. Dep’t of Justice, 6 41 F.3d 1161, 1174 (D.C. Cir. 2012)) (second alteration in original). “Ind eed, ‘[t]here can be no clearer example of an unwarranted invasion of personal pr ivacy than to release to the public that another individual was the subject of [a law enforcem ent] investigation.’” Id. at 542 (citation omitted) (alterations in original). That is precisely t he harm that would follow from t he Department’s confirmation of any records responsive to Mount’s request. Given that the requirements of E xemption 7(C) are met, that exe mption “authorizes a
Glomar response unless the public inter est in disclosure is strong en ough to justify the privacy invasion.” Id. Mount contends t hat the public interest in kno wing how the Department handles allegations of misconduct is su fficient to override the privacy interest here. Pl.’s MSJ at 10. But the D.C. Circuit “ha[s] consis tently found that interest, witho ut more, insufficient to justify disclosure when balanced against the substantial privacy intere sts weighing against revealing the targets of a law enforcement investigation.” PETA, 745 F.3d at 543. Mount does not provide “more” here. Consequently, under D.C. Circuit precedent such a s PETA, the public interest is

4 Unsurprisingly, other judges on this Court have also recognize d that agency OIG investigatory files constitute r ecords compiled for law enforce ment purposes. See, e.g., Nat’l Whistleblower Ctr. v. Dep’t of Hea lth & Human Services, 849 F. Supp. 2d 13, 27–28 (D.D.C. 2012).5 not strong enough to justify the pr ivacy invasion. The Departm ent’s Glomar response is therefore proper. For the foregoing reasons, the Court will grant the Department’ s motion for summary judgment and deny Mount’s. A separate Order will accompany thi s Memorandum Opinion.

CHRISTOPHER R. COOPER United States District Judge Date: February 5, 2018