Case Detail

FOIA Project Annotation: Judge Ketanji Brown Jackson has ruled that the software used by OPM in conducting background checks is protected by Exemption 7(E) (investigative methods and techniques). Richard Sheridan requested the source code for OPM's "Electronic Questionnaires for the Investigations Processing (e-QIP)" and after OPM failed to respond to his request, he filed suit. Once in court, OPM claimed the source code was protected by Exemption 7(E). Siding with OPM, Jackson noted that "the e-QIP source code and related design and operation documents were created for law-enforcement purposes, and that releasing those documents could reasonably be expected to increase two risks, both of which relate to circumvention of the law: the risk that undeserving job applicants will evade the background-investigation process, and the risk of cyber-intrusion into OPM's electronic files." OPM argued that Mittleman v. OPM, 76 F.3d 1240 (D.C. Cir. 1996), in which the D.C. Circuit ruled that Exemption 7 could be used to protect background investigation records, applied here as well. Sheridan asserted that Mittleman did not apply because it dealt only with specific records. Jackson, however, pointed out that "this Court discerns no meaningful difference between records that are collected during a background investigation and records related to the background-investigation system generally when it comes to the question of whether those records 'were compiled for law enforcement purposes.'" She added that "here, there is no dispute that the e-QIP source code and the related design and operations manuals exist to serve OPM's background-investigation function." Jackson found that OPM had provided more than enough evidence of a possible risk of circumvention by allowing individuals to game the investigation process and by increasing threats to cyber security. Sheridan challenged the cyber security claim, noting that OPM's database had previously been hacked without using any source code, implying that the source code was not a crucial element. Calling this argument rational, Jackson indicated that "but the law requires more: courts must account for the language and purposes of a statute as precedents have interpreted it, and it is by now well-established that an agency that invokes Exemption 7(E) need not show that an identified risk will actually increase substantially, or that the risks it relies upon will necessarily come to fruition; rather, 'exemption 7(E) only requires that the [agency] demonstrate logically how the release of [the requested] information might create a risk of circumvention of the law.'" Sheridan contended that some information could be segregated and disclosed. Jackson observed that "but counsel for OPM persuasively responded that risks of cyber-intrusion that it has identified â€" and in particular the risk of phishing â€" apply uniformly throughout the source code and related manuals, including portions that would not otherwise be exempt because they do not themselves reveal investigative techniques."
Issues: Exemption 7(E) - Investigative methods or techniques

Date Filed	Doc #	Docket Text
2016-04-29	1	COMPLAINT against U.S. OFFICE OF PERSONNEL MANAGEMENT ( Filing fee $ 400, receipt number 4616077339) filed by RONALD L. SHERIDAN. (Attachments: # 1 Civil Cover Sheet)(jf) (Entered: 05/02/2016)
2016-05-10	2	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. U.S. OFFICE OF PERSONNEL MANAGEMENT served on 5/5/2016, RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 05/04/2016., RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 5/5/2016. ( Answer due for ALL FEDERAL DEFENDANTS by 6/4/2016.) (jf) (Entered: 05/11/2016)
2016-06-01	3	GENERAL ORDER AND GUIDELINES FOR CIVIL CASES BEFORE JUDGE KETANJI BROWN JACKSON. The Court will hold the parties and counsel responsible for following these directives, and parties and counsel should pay particular attention to the Courts instructions for briefing motions. Failure to adhere to this Order may, when appropriate, result the imposition of sanctions and/or sua sponte denial of non-conforming motions. Signed by Judge Ketanji Brown Jackson on 6/1/2016. (lckbj1) (Entered: 06/01/2016)
2016-06-02	4	NOTICE of Appearance by Jeremy S. Simon on behalf of U.S. OFFICE OF PERSONNEL MANAGEMENT (Simon, Jeremy) (Entered: 06/02/2016)
2016-06-06	5	ANSWER to 1 Complaint by U.S. OFFICE OF PERSONNEL MANAGEMENT.(Simon, Jeremy) (Entered: 06/06/2016)
2016-06-10		MINUTE ORDER. Before the Court in this FOIA case are a complaint and an answer. It is hereby ORDERED that the parties shall promptly confer and file a joint proposed schedule for briefing or disclosure on or before 6/24/2016. Signed by Judge Ketanji Brown Jackson on 06/10/2016. (lckbj1) (Entered: 06/10/2016)
2016-06-24	6	Joint STATUS REPORT and Proposed Schedule by U.S. OFFICE OF PERSONNEL MANAGEMENT. (Simon, Jeremy) (Entered: 06/24/2016)
2016-06-28		MINUTE ORDER. In light of the parties' 6 Joint Status Report and Proposed Schedule, it is hereby ORDERED that Defendant shall file its motion for summary judgment on or before September 1, 2016; Plaintiff shall file its opposition and any cross-motion on or before October 7, 2016; Defendant shall file its reply in support of its motion and opposition to any cross-motion on or before November 4, 2016; and Plaintiff shall file its reply in support of any cross-motion on or before December 5, 2016. Signed by Judge Ketanji Brown Jackson on 6/28/2016. (lckbj2) (Entered: 06/28/2016)
2016-07-01		Set/Reset Deadlines: Cross Motions due by 10/7/2016. Response to Cross Motions due by 11/14/2016. Reply to Cross Motions due by 12/5/2016. Summary Judgment motions due by 9/1/2016. Response to Motion for Summary Judgment due by 10/7/2016. Reply to Motion for Summary Judgment due by 11/4/2016. (tj) (Entered: 07/01/2016)
2016-08-29	7	Consent MOTION for Extension of Time to File Motion for Summary Judgment and to Adjust Corresponding Deadlines by U.S. OFFICE OF PERSONNEL MANAGEMENT (Attachments: # 1 Proposed Order)(Simon, Jeremy) (Entered: 08/29/2016)
2016-09-02		MINUTE ORDER granting, for good cause shown, 7 Consent Motion for Extension of Time to File Motion for Summary Judgement. It is hereby ORDERED that the briefing schedule in this matter is amended as follows: Defendant shall file its motion for summary judgment on or before 9/13/2016; Plaintiff shall file its opposition and any cross-motion on or before 10/19/2016; Defendant shall file its reply in support of its motion and opposition to any cross-motion on or before 11/9/2016; and Plaintiff shall file its reply in support of any cross-motion on or before 12/9/2016. Signed by Judge Ketanji Brown Jackson on 9/2/2016. (lckbj1) Modified on 9/2/2016 to correct deadline (znbn). (Entered: 09/02/2016)
2016-09-13	8	MOTION for Summary Judgment , Local Rule 7(h) Statement and Supporting Memorandum by U.S. OFFICE OF PERSONNEL MANAGEMENT (Attachments: # 1 Proposed Order, # 2 Declaration of Lawrence W. Anderson)(Simon, Jeremy) (Entered: 09/13/2016)
2016-10-13	9	MOTION for Extension of Time to File Response as to 8 MOTION for Summary Judgment , Local Rule 7(h) Statement and Supporting Memorandum by RONALD L. SHERIDAN, JR (jf) (Entered: 10/14/2016)
2016-10-25		MINUTE ORDER granting, for good cause shown, 9 Consent Motion for Extension of Time to File Response to 8 Motion for Summary Judgment, nunc pro tunc. It is hereby ORDERED that the briefing schedule in this matter is amended as follows: Plaintiff shall file its opposition to Defendant's motion for summary judgment and any cross-motion on or before 10/31/2016; Defendant shall file its reply in support of its motion and opposition to any cross-motion on or before 12/1/2016; and Plaintiff shall file its reply in support of any cross-motion on or before 12/31/2016. Signed by Judge Ketanji Brown Jackson on 10/25/2016. (lckbj1) (Entered: 10/25/2016)
2016-10-31	10	Memorandum in opposition to re 8 MOTION for Summary Judgment filed by RONALD L. SHERIDAN, JR. (jf) (Entered: 11/01/2016)
2016-10-31	11	Cross MOTION for Summary Judgment by RONALD L. SHERIDAN, JR (jf) (Entered: 11/01/2016)
2016-11-29	12	Consent MOTION for Extension of Time to File Reply in Support of Motion for Summary Judgment and Opposition to Plaintiff's Cross-Motion and to Adjust Remaining Briefing Deadlines by U.S. OFFICE OF PERSONNEL MANAGEMENT (Attachments: # 1 Proposed Order)(Simon, Jeremy) (Entered: 11/29/2016)
2016-11-30		MINUTE ORDER. It is hereby ordered that the 12 Consent Motion for Extension of Time is GRANTED. It is FURTHER ORDERED that Defendant's reply in support of its 8 Motion for Summary Judgment and opposition to Plaintiff's 11 Cross-Motion for Summary Judgment shall be due on or before 12/15/2016, and that Plaintiff's reply in support of his 11 Cross-Motion for Summary Judgment shall be due on or before 01/17/2017. Signed by Judge Ketanji Brown Jackson on November 30, 2016. (lckbj2) (Entered: 11/30/2016)
2016-12-14	13	Memorandum in opposition to re 11 MOTION for Summary Judgment (Combined Reply Memorandum in Support of Defendant's Motion and Opposition to Plaintiff's Cross-Motion) filed by U.S. OFFICE OF PERSONNEL MANAGEMENT. (Attachments: # 1 Defendant's Response to Plaintiff's Local Rule 7(H) Statement, # 2 Proposed Order)(Simon, Jeremy) (Entered: 12/14/2016)
2016-12-14	14	REPLY to opposition to motion re 8 MOTION for Summary Judgment , Local Rule 7(h) Statement and Supporting Memorandum (Duplicate to Docket Entry No. 13) filed by U.S. OFFICE OF PERSONNEL MANAGEMENT. (Attachments: # 1 Defendant's Response to Plaintiff's Local Rule 7(H) Statement, # 2 Proposed Order)(Simon, Jeremy) (Entered: 12/14/2016)
2017-01-17	15	REPLY to opposition to motion re 11 MOTION for Summary Judgment filed by RONALD L. SHERIDAN, JR. (td) (Entered: 01/18/2017)
2017-04-19		MINUTE ORDER setting hearing on Defendant's 8 Motion for Summary Judgment and Plaintiff's 11 Cross-Motion for Summary Judgment for Tuesday, July 25, 2017 at 10:30 AM in Courtroom 17 before Judge Ketanji Brown Jackson. Signed by Judge Ketanji Brown Jackson on April 19, 2017. (lckbj2) (Entered: 04/19/2017)
2017-07-25		Minute Entry for proceedings held before Judge Ketanji Brown Jackson: Motion Hearing held on 7/25/2017, re 8 Defendants' motion for Summary Judgment and 11 Plaintiff's motion for Summary Judgment. Oral arguments heard and motions taken under advisement. (Court Reporter Barbara DeVico) (gdf) (Entered: 07/25/2017)
2017-09-29	16	MEMORANDUM OPINION granting Defendant's 8 Motion for Summary Judgment and denying Plaintiff's 11 Cross-Motion for Summary Judgment. See attached document for details. Signed by Judge Ketanji Brown Jackson on September 29, 2017. (lckbj2) (Entered: 09/29/2017)
2017-09-29	17	ORDER granting Defendant's 8 Motion for Summary Judgment and denying Plaintiff's 11 Cross-Motion for Summary Judgment. See attached document for details. Signed by Judge Ketanji Brown Jackson on September 29, 2017. (lckbj2) (Entered: 09/29/2017)
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