Case Detail

FOIA Project Annotation: Judge Robert Wilkins has ruled that the Defense Intelligence Agency conducted an adequate search for records concerning polygraph examinations and properly withheld records under Exemption 7(E) (investigative methods and techniques) in response to multiple requests from Kathryn Sack, a graduate student at the University of Virginia researching her dissertation on polygraph bias. Also, in rejecting Sack's challenge to the National Security Agency's refusal to place her in the educational fee category, Wilkins becomes one of the first judges to ever analyze in detail the requirements to qualify for the category. Sack sent requests to a number of federal agencies concerning polygraph exams, including DIA and NSA. Sack complained that DIA limited its search of its National Center for Credibility Assessment to bias-related information. But Wilkins pointed out that Sack's request was explicitly limited to records in DIA's security office, which the agency decided was unlikely to have any responsive records. Instead, it concluded that while the NCCA might have responsive records, the NCCA did not maintain aggregate data and, thus, searching for terms like "bias" would be the best way to locate responsive records. Wilkins observed that "in carrying out that aspect of its search, it was equally reasonable for DIA to rely upon the bias- and EEO-related search terms used. As noted, DIA determined, in consultation with NCCA officials, that a search for 'aggregate data' would have been fruitless. In turn, the agency interpreted the scope of Sack's request in a manner consistent with the scope of Sack's accompanying FOIA requests to DIA, all of which sought bias- and EEO-related information related to polygraphs. Under the totality of the circumstances, this was an appropriate approach." Sack also complained DIA had found no records of correspondence with Sheila Reed, a leading polygraph researcher. But Wilkins indicated that "based on NCCA's mission of assisting federal agencies with education and tools for credibility assessment, it was appropriate for DIA to conclude that any responsive records were likely to be found within the NCCA, and to focus its search efforts accordingly. At bottom, Sack is effectively arguing that responsive documents might exist elsewhere within DIA, but she offers nothing beyond her own supposition in support of this theory. This approach simply comes up short." Wilkins found that quality assurance program reports prepared for OPM were properly protected by Exemption 7(E). He noted that "disclosure of the QAP Reports could reasonably be expected to circumvent the efficacy of background investigations undertaken by federal agencies. Indeed, these concerns are particularly heightened in this case, given that the QAP Reports in contention pertain to the polygraph screening programs of federal law enforcement agencies. . .The Court agrees that placing this information in the public domain at least creates a risk that bad actors could leverage those details to subvert the background screening process, thereby gaining access to sensitive (if not classified) information that could be exploited to harm national security and homeland security interests." NSA had denied Sack's request to be considered a representative of an educational institution, even after she submitted a letter from her faculty advisor confirming that her research was consistent with the research goals of the university. Wilkins pointed out that "all of Sack's submissions contained vague and conclusory wording that evaded the central question presented by the OMB fee guidelines: whether the request was for Sack's coursework, or whether it was for a project sponsored by the educational institution. Sack, as the requester, had the burden of proof on this issue, and her proof was simply insufficient. To hold otherwise would allow a student's FOIA request supporting her coursework to fall with the educational institution exemption, so long as the request does not mention her coursework and so long as the instructor asserts (without explanation) that the request is 'on behalf of the institution' and that the student's research is 'consistent' with the goals of the institution. This would be an end-run around the OMB fee guidelines."
Issues: Fee Category - Media or Educational, Exemption 7(E) - Investigative methods or techniques

Date Filed	Doc #	Docket Text
2012-10-30	1	COMPLAINT against DEPARTMENT OF DEFENSE ( Filing fee $ 350 receipt number 0090-3114934) filed by KATHRYN SACK. (Attachments: # 1 Civil Cover Sheet)(McClanahan, Kelly) (Entered: 10/30/2012)
2012-10-30	2	NOTICE OF RELATED CASE by KATHRYN SACK. Case related to Case No. 12-537. (McClanahan, Kelly) (Entered: 10/30/2012)
2012-10-30		Case Assigned to Judge Robert L. Wilkins. (ls, ) (Entered: 10/31/2012)
2012-11-02	3	MOTION to Consider Service Already Effected re 1 Complaint by KATHRYN SACK (Attachments: # 1 Text of Proposed Order)(McClanahan, Kelly) (Entered: 11/02/2012)
2012-11-08	4	Memorandum in opposition to re 3 MOTION to Consider Service Already Effected re 1 Complaint filed by DEPARTMENT OF DEFENSE. (Attachments: # 1 Proposed Order)(Simon, Jeremy) (Entered: 11/08/2012)
2012-11-17	5	REPLY to opposition to motion re 3 MOTION to Consider Service Already Effected re 1 Complaint filed by KATHRYN SACK. (Attachments: # 1 Exhibit A - Simon-McClanahan email)(McClanahan, Kelly) (Entered: 11/17/2012)
2012-11-20	6	ORDER denying 3 Motion MOTION to Consider Service Already Effected re 1 Complaint. Signed by Judge Robert L. Wilkins on 11/20/2012. (tcb) (Entered: 11/20/2012)
2012-11-20	7	NOTICE (Summonses) by KATHRYN SACK re 1 Complaint (Attachments: # 1 Summons, # 2 Summons)(McClanahan, Kelly) (Entered: 11/20/2012)
2012-11-21	8	NOTICE (Corrected summonses) by KATHRYN SACK re 1 Complaint (Attachments: # 1 Summons, # 2 Summons)(McClanahan, Kelly) (Entered: 11/21/2012)
2012-11-21	9	Electronic Summons (3) Issued as to DEPARTMENT OF DEFENSE, U.S. Attorney and U.S. Attorney General (Attachments: # 1 consent form, # 2 notice of consent to trial)(rdj) (Entered: 11/21/2012)
2012-11-27	10	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 11/26/2012., RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 11/26/2012. ( Answer due for ALL FEDERAL DEFENDANTS by 12/26/2012.), RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. DEPARTMENT OF DEFENSE served on 11/27/2012 (McClanahan, Kelly) (Entered: 11/27/2012)
2012-12-24	11	ANSWER to Complaint by DEPARTMENT OF DEFENSE.(Lo, Michelle) (Entered: 12/24/2012)
2012-12-31		MINUTE ORDER: Before the Court in this FOIA case are a Complaint and an Answer. The requirements of LCvR 16.3 and Federal Rule of Civil Procedure 26(f) appear to be inapplicable. IT IS HEREBY ORDERED that the parties shall meet and confer and propose a schedule for proceeding in this matter. The schedule should address the status of Plaintiff's FOIA request, the anticipated number of documents responsive to Plaintiff's FOIA request, the anticipated date(s) for release of the documents requested by Plaintiff, whether a motion for an Open America stay is likely in this case, whether a Vaughn index will be required in this case, whether and when any party anticipates filing a dispositive motion, and any other pertinent issues. The parties shall file a joint status report that addresses these issues and that contains a proposed schedule and order by not later than January 18, 2013. Signed by Judge Robert L. Wilkins on 12/31/2012. (lcrlw3) (Entered: 12/31/2012)
2013-01-18	12	STATUS REPORT (Joint) by DEPARTMENT OF DEFENSE, KATHRYN SACK. (Attachments: # 1 Text of Proposed Order)(Lo, Michelle) (Entered: 01/18/2013)
2013-01-22	13	ORDER: UPON CONSIDERATION of the parties Joint Status Report, and for good cause shown, it is hereby ORDERED that the following schedule will govern further proceedings in this case: Defendants Motion for Summary Judgment due by 3/15/2013. Plaintiffs Opposition/Cross-Motion due by 4/15/2013. Defendants Reply/Opposition to Cross-Motion due by 5/15/2013. Plaintiffs Reply due by 5/29/2013. Signed by Judge Robert L. Wilkins on 1/22/2013. (tcb) (Entered: 01/22/2013)
2013-02-04	14	NOTICE OF RELATED CASE by KATHRYN SACK. Case related to Case No. 12-244. (Attachments: # 1 Exhibit A - Lo-McClanahan email)(McClanahan, Kelly) (Entered: 02/04/2013)
2013-02-04	15	MOTION to Stay Briefing of Counts 5 and 6 by KATHRYN SACK (Attachments: # 1 Text of Proposed Order)(McClanahan, Kelly) (Entered: 02/04/2013)
2013-02-04	16	NOTICE of Filing Exhibits by KATHRYN SACK re 15 MOTION to Stay Briefing of Counts 5 and 6 (Attachments: # 1 Exhibit A - NSA letter, # 2 Exhibit B - Lo-McClanahan email (redacted), # 3 Exhibit C - NSC v. CIA 1st Am. Compl., # 4 Exhibit D - NSC v. CIA Opp'n)(McClanahan, Kelly) (Entered: 02/04/2013)
2013-02-05		MINUTE ORDER: It is hereby ORDERED that the Defendants are directed to file any response to the Notice of Related Case at DKT# 14 by Friday, February 8, 2013 at 5:00 PM and any reply shall be due by no later than noon on, Tuesday, February 12, 2013; and it is FURTHER ORDERED that the parties shall appear on Wednesday, February 13, 2013 at 9:30 AM in Courtroom 27A for a status hearing. Signed by Judge Robert L. Wilkins on 2/5/2013. (tcb) (Entered: 02/05/2013)
2013-02-05		MINUTE ORDER: It is hereby ORDERED that the Defendants are directed to file any response to the Motion to Stay Briefing of Counts 5 and 6 at DKT# 15 by Friday, February 8, 2013 at 5:00 PM and any reply shall be due by no later than noon on, Tuesday, February 12, 2013; and it is FURTHER ORDERED that the parties shall appear on Wednesday, February 13, 2013 at 9:30 AM in Courtroom 27A for a status hearing. Signed by Judge Robert L. Wilkins on 2/5/2013. (tcb) (Entered: 02/05/2013)
2013-02-07	17	Memorandum in opposition to re 15 MOTION to Stay Briefing of Counts 5 and 6 filed by DEPARTMENT OF DEFENSE. (Lo, Michelle) (Entered: 02/07/2013)
2013-02-07	18	RESPONSE re 14 Notice of Related Case filed by DEPARTMENT OF DEFENSE. (Lo, Michelle) (Entered: 02/07/2013)
2013-02-12	19	REPLY re 14 Notice of Related Case filed by KATHRYN SACK. (Attachments: # 1 Exhibit A - McClanahan-Simon email)(McClanahan, Kelly) (Entered: 02/12/2013)
2013-02-12	20	REPLY to opposition to motion re 15 MOTION to Stay Briefing of Counts 5 and 6 filed by KATHRYN SACK. (McClanahan, Kelly) (Entered: 02/12/2013)
2013-02-19		MINUTE ORDER: The Court has reviewed Plaintiff's 14 Notice of Related Case, along with Defendant's Response 18 and Plaintiff's Reply 19 , and upon careful consideration of those filings and the arguments of counsel during the hearing on February 13, 2013, the Court has determined that this matter is not related to Civil Case No. 12-cv-244 within the meaning of Local Civil Rule 40.5(a)(1). Accordingly, the Court will take no further action in response to Plaintiffs Notice of Related Case at this time. Furthermore, Plaintiff's 15 Motion to Stay Briefing of Counts V and VI is hereby DENIED. The parties shall proceed with briefing in accordance with the deadlines set forth in the Court's Order at Dkt. No. 13 .Signed by Judge Robert L. Wilkins on 02/19/2013. (lcrlw3) (Entered: 02/19/2013)
2013-03-13	21	Consent MOTION for Extension of Time to File Defendant's Motion for Summary Judgment by DEPARTMENT OF DEFENSE (Lo, Michelle) (Entered: 03/13/2013)
2013-03-14		MINUTE ORDER granting 21 Consent MOTION for Extension of Time to File Defendant's Motion for Summary Judgment;and it is FURTHER ORDERED that the following schedule will govern further proceedings in this case: Plaintiffs Opposition/Cross-Motion due by 4/22/2013. Defendants Reply/Opposition to Cross-Motion due by 5/22/2013. Plaintiffs Reply due by 6/5/2013. Signed by Judge Robert L. Wilkins on 3/14/2013. (tcb) . (Entered: 03/14/2013)
2013-03-22	22	MOTION for Summary Judgment by DEPARTMENT OF DEFENSE (Attachments: # 1 Declaration of Alesia Y. Williams, # 2 DIA Vaughn Index, # 3 Declaration of Diane M. Janosek, # 4 Declaration of David M. Hardy, # 5 Text of Proposed Order)(Lo, Michelle) (Entered: 03/22/2013)
2013-04-22	23	Memorandum in opposition to re 22 MOTION for Summary Judgment filed by KATHRYN SACK. (Attachments: # 1 Exhibit A - OPM-Agency correspondence, # 2 Exhibit B - Nisbet-McClanahan letter, # 3 Exhibit C - O'Neill-McClanahan letter, # 4 Text of Proposed Order)(McClanahan, Kelly) (Entered: 04/22/2013)
2013-05-17	24	Consent MOTION for Extension of Time to File Response/Reply as to 22 MOTION for Summary Judgment by DEPARTMENT OF DEFENSE (Lo, Michelle) (Entered: 05/17/2013)
2013-05-22	25	MINUTE ORDER granting 24 Motion for Extension of Time to File Response/Reply re 22 MOTION for Summary Judgment ; Set/Reset Deadlines: Replies due by 6/5/2013. Signed by Judge Robert L. Wilkins on 5/22/2013. (Wilkins, Robert) (Entered: 05/22/2013)
2013-06-03	26	Consent MOTION for Extension of Time to File Response/Reply as to 22 MOTION for Summary Judgment by DEPARTMENT OF DEFENSE (Lo, Michelle) (Entered: 06/03/2013)
2013-06-05	27	ORDER granting 26 Consent MOTION for Extension of Time to File Response/Reply as to 22 MOTION for Summary Judgment;and Defendant shall file its Reply in Further Support of Defendants Motion for Summary Judgment by Wednesday, June 12, 2013. Signed by Judge Robert L. Wilkins on 6/5/2013. (tcb) (Entered: 06/05/2013)
2013-06-12	28	REPLY to opposition to motion re 22 MOTION for Summary Judgment filed by DEPARTMENT OF DEFENSE. (Attachments: # 1 Supplemental Declaration of Alesia Y. Williams, # 2 Reply Exhibit 1)(Lo, Michelle) (Entered: 06/12/2013)
2013-12-09	29	MEMORANDUM OPINION re: Defendant's 22 MOTION for Summary Judgment. Signed by Judge Robert L. Wilkins on 12/09/2013. (tcb). (Entered: 12/11/2013)
2013-12-09	30	ORDER re: Defendant's 22 MOTION for Summary Judgment; it is,FURTHER ORDERED that judgment is awarded to Defendant as to all claims in the above-captioned action. Signed by Judge Robert L. Wilkins on 12/9/2013. (tcb) (Entered: 12/11/2013)
2013-12-13	31	AMENDED MEMORANDUM OPINION re: Defendant's 22 MOTION for Summary Judgment. Signed by Judge Robert L. Wilkins on 12/13/2013. (tcb) (Entered: 12/17/2013)
2014-01-07	32	MOTION for Extension of Time to File Fee Petition by KATHRYN SACK (Attachments: # 1 Text of Proposed Order)(McClanahan, Kelly) (Entered: 01/07/2014)
2014-01-08	33	ORDER granting 32 MOTION for Extension of Time to File Fee Petition. Signed by Judge Robert L. Wilkins on 1/8/2014. (tcb) (Entered: 01/08/2014)
2014-01-24		Case reassigned to the Calendar Committee who will oversee it until it is reassigned to another judge. Judge Robert L. Wilkins has been elevated to the U.S. Court of Appeals for DC and is no longer assigned to the case. Any questions should be directed to Terri Barrett, formerly Judge Wilkins deputy clerk, at 202-354-3179 or terri_barrett@dcd.uscourts.gov (tcb) (Entered: 01/24/2014)
2014-01-28	34	NOTICE (Letter to Calendar and Case Management Committee) by KATHRYN SACK (McClanahan, Kelly) (Entered: 01/28/2014)
2014-02-04	35	RESPONSE re 34 Notice (Other) (Plaintiff's Letter to Calendar and Case Management Committee) filed by DEPARTMENT OF DEFENSE. (Lo, Michelle) (Entered: 02/04/2014)
2014-02-07		MINUTE ORDER granting 36 MOTION for Extension of Time to File Notice of Appeal; it is hereby ORDERED that the Plaintiff is directed to file her Notice of Appeal on or before February 18, 2014. Signed by Judge Ellen S. Huvelle on behalf of the Calendar Committee on 2/7/2014. (tcb) (Entered: 02/07/2014)
2014-02-15	37	NOTICE OF APPEAL TO DC CIRCUIT COURT as to 31 Memorandum & Opinion by KATHRYN SACK. Filing fee $ 505, receipt number 0090-3623737. Fee Status: Fee Paid. Parties have been notified. (McClanahan, Kelly) (Entered: 02/15/2014)
2014-02-18	38	Transmission of the Notice of Appeal, Order Appealed, and Docket Sheet to US Court of Appeals. The Court of Appeals fee was paid this date re 37 Notice of Appeal to DC Circuit Court. (rdj) (Entered: 02/18/2014)
2014-02-18	39	Consent MOTION to Stay Fee Petition Deadline by KATHRYN SACK (Attachments: # 1 Text of Proposed Order)(McClanahan, Kelly) (Entered: 02/18/2014)
2014-02-19		MINUTE ORDER granting 39 Consent MOTION to Stay Fee Petition Deadline. Signed by Judge Ellen S. Huvelle on 2/19/2014. (tcb) (Entered: 02/19/2014)
2014-02-21		USCA Case Number 14-5039 for 37 Notice of Appeal to DC Circuit Court filed by KATHRYN SACK. (kb) (Entered: 02/21/2014)
2016-07-18	40	MANDATE of USCA (certified copy) as to 37 Notice of Appeal to DC Circuit Court filed by KATHRYN SACK. USCA Case Number 14-5039. (Attachments: # 1 judgment filed May 20, 2016)(zrdj) (Entered: 07/18/2016)
2016-07-18		Case randomly reassigned to Judge James E. Boasberg upon receipt of mandate. Calendar Committee no longer assigned to the case. (ztnr) (Entered: 07/18/2016)
2016-07-18		MINUTE ORDER: The Court ORDERS that the parties shall appear for a status conference on August 1, 2016, at 9:30 a.m. Signed by Judge James E. Boasberg on 7/18/16. (lcjeb1) (Entered: 07/18/2016)
2016-07-19		Set/Reset Hearing: A Status Conference is set for 8/01/2016, at 9:30 AM, in Courtroom 19, before Judge James E. Boasberg. (ad) (Entered: 07/19/2016)
2016-07-19	41	NOTICE of Appearance by Peter Rolf Maier on behalf of DEPARTMENT OF DEFENSE (Maier, Peter) (Entered: 07/19/2016)
2016-08-01	42	NOTICE OF WITHDRAWAL OF APPEARANCE as to DEPARTMENT OF DEFENSE. Attorney Jeremy S. Simon terminated. (Simon, Jeremy) (Entered: 08/01/2016)
2016-08-01		Minute Entry for proceedings held before Judge James E. Boasberg: Status Conference held on 8/1/2016. Order forthcoming. (Court Reporter William Zaremba) (ad) (Entered: 08/01/2016)
2016-08-01		MINUTE ORDER: Although Plaintiff's counsel failed to appear for this morning's status conference without explanation, the Court ORDERS that both parties shall meet, confer, and submit a proposed schedule by August 15, 2016. Signed by Judge James E. Boasberg on 8/1/16. (lcjeb1) (Entered: 08/01/2016)
2016-08-01		Set/Reset Deadline: Both parties shall meet, confer, and submit a proposed schedule by 8/15/2016. (ad) (Entered: 08/01/2016)
2016-08-15	43	Joint STATUS REPORT by DEPARTMENT OF DEFENSE. (Maier, Peter) (Entered: 08/15/2016)
2016-08-16		MINUTE ORDER: The Court ORDERS that the parties shall file a Joint Status Report on October 11, 2016, to advise of their progress. Signed by Judge James E. Boasberg on 8/16/2016. (lcjeb1) (Entered: 08/16/2016)
2016-08-16		Set/Reset Deadline: The parties shall file a Joint Status Report on 10/11/2016, to advise of their progress. (ad) (Entered: 08/16/2016)
2016-10-11	44	NOTICE OF SUBSTITUTION OF COUNSEL by Peter C. Pfaffenroth on behalf of DEPARTMENT OF DEFENSE Substituting for attorney Michelle Lo, Peter Rolf Maier (Pfaffenroth, Peter) (Entered: 10/11/2016)
2016-10-11	45	Joint STATUS REPORT by DEPARTMENT OF DEFENSE. (Attachments: # 1 Text of Proposed Order)(Pfaffenroth, Peter) (Entered: 10/11/2016)
2016-10-12		MINUTE ORDER: Per the parties' 45 Joint Status Report, the Court ORDERS that they shall submit another Joint Status Report by January 13, 2017. Signed by Judge James E. Boasberg on 10/12/2016. (lcjeb1) (Entered: 10/12/2016)
2016-10-12		Set/Reset Deadline: Per the parties' 45 Joint Status Report, the Court ORDERS that they shall submit another Joint Status Report by 1/13/2017. (ad) (Entered: 10/12/2016)
2017-01-13	46	Joint STATUS REPORT by DEPARTMENT OF DEFENSE. (Attachments: # 1 Text of Proposed Order)(Pfaffenroth, Peter) (Entered: 01/13/2017)
2017-01-17		MINUTE ORDER: Per the parties' 46 Joint Status Report, the Court ORDERS that they shall submit another Joint Status Report by February 13, 2017. Signed by Judge James E. Boasberg on 1/17/2017. (lcjeb1) (Entered: 01/17/2017)
2017-01-17		Set/Reset Deadlines: Joint Status Report due by 2/13/2017. (nbn) (Entered: 01/23/2017)
2017-02-13	47	Joint STATUS REPORT by DEPARTMENT OF DEFENSE. (Attachments: # 1 Text of Proposed Order)(Pfaffenroth, Peter) (Entered: 02/13/2017)
2017-02-14		MINUTE ORDER: Per the parties' 47 Joint Status Report, the Court ORDERS that they shall submit another Joint Status Report by March 30, 2017. Signed by Judge James E. Boasberg on 2/14/2017. (lcjeb1) (Entered: 02/14/2017)
2017-02-14		Set/Reset Deadlines: Joint Status Report due by 3/30/2017. (nbn) (Entered: 02/14/2017)
2017-03-30	48	Joint MOTION to Close Case and Joint Status Report by DEPARTMENT OF DEFENSE (Attachments: # 1 Text of Proposed Order)(Pfaffenroth, Peter) (Entered: 03/30/2017)
2017-03-31		MINUTE ORDER GRANTING 48 Joint Motion to Close Case. Signed by Judge James E. Boasberg on 3/31/2017. (lcjeb1) (Entered: 03/31/2017)
2017-05-17	49	STIPULATION of Dismissal With Prejudice by DEPARTMENT OF DEFENSE. (Pfaffenroth, Peter) (Entered: 05/17/2017)
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