Case Detail

FOIA Project Annotation: Judge Amit Mehta has ruled that the FBI has not shown why disclosure of National Agency Check results in response to retired NIH analytical chemist Noel Whittaker's FOIA request for his 2007 background investigation report would reveal information protected by Exemption 7(E) (investigative methods or techniques). Whittaker requested the records from OPM, which released his report but redacted the National Agency Check results at the request of the FBI. The FBI told Mehta that disclosing the National Agency Check results would reveal the type of information the agency finds relevant to a name check, provide an indication of whether or not derogatory information existed in FBI files, and that routinely withholding such information is itself a law enforcement technique or procedure meriting protection. Mehta indicated he was confident that neither the second nor the third claim qualified under Exemption 7(E) and that on the current record he lacked enough information to assess the merits of the first claim. Mehta started by noting that "it is not evident how revealing whether the FBI has 'derogatory' information about a requester would disclose a law enforcement technique or procedure." He added that "disclosing the results of Plaintiff's National Agency Check would not necessarily reveal how the FBI 'goes about' collecting information returned from such inquiries" and observed that the agency's claim of harm was more akin to Exemption 7(A) (interference with ongoing investigation or proceeding) than to Exemption 7(E). He expressed puzzlement over the agency's claim that the name check technique was itself protected, pointing out that "the position is odd, to say the least, as the FBI now has disclosed the very technique or procedure it seeks to protect. The court is aware of no case, and Defendants cite none, for the proposition that the practice of categorically invoking a FOIA Exemption is itself protected from disclosure under Exemption 7(E)." Mehta explained that the FBI's policy on name checks was to routinely issue a Glomar response neither confirming nor denying the existence of records. He indicated that CREW v. Dept of Justice, 746 F.3d 1082 (D.C. Cir. 2014) provided an example of the improper use of a Glomar response to withhold records about an already-known investigation of then House majority leader Rep. Tom DeLay (R-TX) in light of a clear public interest in the investigation, while Kalu v. IRS, 159 F. Supp. 3d 16 (D.D.C. 2016), concerning the FBI's refusal to acknowledge whether Kalu was on the FBI no-fly list, represented a more appropriate use of Glomar. Noting that the use of Glomar as a categorical exemption for name check results fell somewhere between the two cases, he pointed out that "'the agency must at least provide some explanation of what procedures are involved and how they would be disclosed.' Defendants have not adequately done so here."
Issues: Exemption 7(E) - Unknown to public, Exemption 7 - Law enforcement records

FOIA Project Annotation: Judge Amit Mehta has ruled that the FBI has now justified its use of Exemption 7(E) (investigative methods or techniques) to withhold information from the security background check for Noel Whittaker. Whittaker worked as an analytical chemist for the NIH from 1974 to 2002. He then worked at the University of Maryland Department of Chemistry from 2002 to 2007. In 2007, he returned to NIH as a contractor. As part of that job, Whittaker underwent a background investigation. In 2014, he requested a copy of his background investigation from OPM. The agency released the report but redacted the National Agency Check results at the request of the FBI. After his appeal of the decision was denied, Whittaker filed suit. In his first ruling in the case, Mehta found the FBI had failed to explain what techniques would be disclosed if Whittaker's National Agency Check was released. However, he found the FBI's supplemental affidavit provided that level of explanation. Mehta indicated that "even in cases where the National Agency Check results contain no derogatory information, a requester could discover that the FBI lacks the methods necessary to capture or track the requester's illicit behavior. If the FBI were to reveal any specific techniques or procedures associated with Plaintiff's results, Plaintiff would be made aware of those methods' use as to his own activity, which would 'reduce or nullify their effectiveness.'" Noting that the FBI had provided an adequate explanation, Mehta observed that "these examples clearly go beyond mere regurgitation of the statutory standard for Exemption 7(E) and instead provide the court with the minimal explanation necessary to justify Defendants' withholding." He pointed out that "the name check results could reveal derogatory information (or lack thereof) that could shed light on any number of different law enforcement techniques and procedures. Because Plaintiff currently has no sense of which techniques or procedures are intertwined with the name check results, Defendants risk reducing or nullifying the effectiveness of those techniques and/or procedures if they were to describe them with any greater specificity." He added that "disclosing information risks revealing the underlying techniques and procedures used to gather information about a person, and that is Defendants' ultimate â€" and valid â€" concern." Mehta also agreed with the FBI that the mosaic theory â€" disclosing apparently innocuous information could lead to a more complete picture that would undercut the use of the Exemption â€" applied. He noted that "although the court is not in a position to assess with precision the likelihood of Defendants' asserted harms, it is satisfied that Defendants have demonstrated some chance that disclosure of Plaintiff's name check results risks circumvention of the law via a mosaic effect."
Issues: Exemption 7(E) - Investigative methods or techniques, Exemption 7(E) - Unknown to public

Date Filed	Doc #	Docket Text
2018-06-18	1	COMPLAINT against UNITED STATES DEPARTMENT OF JUSTICE ( Filing fee $ 400 receipt number 0090-5539070) filed by NOEL F. WHITTAKER. (Attachments: # 1 Civil Cover Sheet, # 2 Summons)(Lynch, John) (Entered: 06/18/2018)
2018-06-18		Case Assigned to Judge Amit P. Mehta. (zmd) (Entered: 06/20/2018)
2018-06-20	2	NOTICE Updated Civil Cover Sheet by NOEL F. WHITTAKER (Lynch, John) (Entered: 06/20/2018)
2018-06-20	3	SUMMONS (3) Issued Electronically as to UNITED STATES DEPARTMENT OF JUSTICE, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Notice and Consent) (zmd) (Entered: 06/20/2018)
2018-07-23	4	NOTICE of Appearance by Brian J. Field on behalf of All Defendants (Field, Brian) (Entered: 07/23/2018)
2018-07-23	5	Consent MOTION for Extension of Time to Respond to Plaintiff's Complaint by UNITED STATES DEPARTMENT OF JUSTICE (Field, Brian) (Entered: 07/23/2018)
2018-07-23		MINUTE ORDER granting Defendant's 5 Motion for Extension of Time. Defendant shall respond to Plaintiff's Complaint no later than August 27, 2018. Signed by Judge Amit P. Mehta on 07/23/2018. (lcapm3) (Entered: 07/23/2018)
2018-07-24		Set/Reset Deadlines: Answer to the Complaint due by 8/27/2018. (tg) (Entered: 07/24/2018)
2018-08-22	6	Consent MOTION for Extension of Time to File Answer re 1 Complaint by UNITED STATES DEPARTMENT OF JUSTICE (Field, Brian) (Entered: 08/22/2018)
2018-08-23		MINUTE ORDER granting Defendant's 6 Motion for Extension of Time. Defendant shall respond to Plaintiff's Complaint no later than September 10, 2018. Signed by Judge Amit P. Mehta on 08/28/2018. (lcapm3) (Entered: 08/23/2018)
2018-08-23		Set/Reset Deadlines: Defendant's response to Plaintiff's Complaint due by 9/10/2018. (hmc) (Entered: 08/23/2018)
2018-09-10	7	ANSWER to Complaint by UNITED STATES DEPARTMENT OF JUSTICE.(Field, Brian) (Entered: 09/10/2018)
2018-09-10		MINUTE ORDER. Both a Complaint and an Answer are now before the court in this FOIA case. It is hereby ordered that the parties shall meet and confer and file a Joint Status Report on or before October 1, 2018. The Joint Status Report shall include (1) the status of Plaintiff's FOIA request; (2) the anticipated number of documents responsive to Plaintiff's FOIA request; (3) the anticipated date(s) for release of the documents requested by Plaintiff; (4) whether a motion for stay is likely under Open America v. Watergate Special Prosecution Force, 547 F.2d 605 (D.C. Cir. 1976); and (5) whether the parties anticipate summary judgment briefing and, if so, a proposed briefing schedule. Signed by Judge Amit P. Mehta on 09/10/2018. (lcapm3) (Entered: 09/10/2018)
2018-09-10		Set/Reset Deadlines: Joint Status Report due by 10/1/2018. (zjd) (Entered: 09/12/2018)
2018-10-01	8	Joint STATUS REPORT by UNITED STATES DEPARTMENT OF JUSTICE. (Field, Brian) (Entered: 10/01/2018)
2018-10-03	9	ORDER entering the briefing schedule proposed in the parties' 8 Joint Status Report. The schedule for further proceedings in this matter is as follows: (1) Plaintiff's Motion for Leave to File an Amended Complaint is due on or before October 15, 2018; (2) Defendant's Motion for Summary Judgment is due on or before November 15, 2018; (3) Plaintiff's Opposition to Defendant's Motion and any Cross-Motion for Summary Judgment is due on or before December 31, 2018; (4) Defendant's Reply in Support of Summary Judgment and Opposition to any Cross-Motion for Summary Judgment is due on or before January 31, 2019; and (5) Plaintiff's Reply in Support of any Cross-Motion for Summary Judgment is due on or before February 28, 2019. See the attached Order for additional details. Signed by Judge Amit P. Mehta on 10/03/2018. (lcapm3) (Entered: 10/03/2018)
2018-10-03		Set/Reset Deadlines: Motion for Leave to File Amended Complaint due by 10/15/2018. Defendant's Motion for Summary Judgment due by 11/15/2018. Plaintiff's Opposition and Cross-Motion for Summary Judgment due by 12/31/2018. Defendant's Reply and Opposition due by 1/31/2019. Plaintiff's Reply due by 2/28/2019. (zjd) (Entered: 10/04/2018)
2018-10-05	10	MOTION to Amend/Correct 1 Complaint by NOEL F. WHITTAKER (Attachments: # 1 Proposed amended complaint)(Lynch, John) (Entered: 10/05/2018)
2018-10-05		Minute Order. It remains unclear to the court whether Defendant opposes Plaintiff's request to amend his complaint. The Status Report filed on October 1, 2018, merely states that the "[t]he Parties have agreed that Plaintiff will file a motion for leave to amend," but does not say whether Defendant consents to the amendment. Likewise, the motion to amend itself does not represent Defendant's position. Accordingly, no later than October 10, 2018, Defendant shall notify the court whether it consents to Plaintiff's request to file an amended complaint. Signed by Judge Amit P. Mehta on 10/05/2018. (lcapm3) (Entered: 10/05/2018)
2018-10-05	11	NOTICE by UNITED STATES DEPARTMENT OF JUSTICE re Order,, (Field, Brian) (Entered: 10/05/2018)
2018-10-05		MINUTE ORDER granting 10 Plaintiff's Motion to Amend Complaint. Plaintiff's Amended Complaint shall now be the operative pleading in this case. Signed by Judge Amit P. Mehta on 10/05/2018. (lcapm3). (Entered: 10/05/2018)
2018-10-09	12	AMENDED COMPLAINT to add defendant United States Office of Personnel Management against NOEL F. WHITTAKER filed by NOEL F. WHITTAKER. (Attachments: # 1 Summons, # 2 Summons, # 3 Summons, # 4 Summons)(Lynch, John) (Entered: 10/09/2018)
2018-10-10	13	SUMMONS (4 ) Issued Electronically as to UNITED STATES OFFICE OF PERSONNEL MANAGEMENT (2 issued for U.S.O.P.M), U.S. Attorney and U.S. Attorney General (ztd) (Entered: 10/10/2018)
2018-10-18	14	NOTICE of Appearance by Brian J. Field on behalf of UNITED STATES OFFICE OF PERSONNEL MANAGEMENT (Field, Brian) (Entered: 10/18/2018)
2018-10-18	15	ANSWER to 12 Amended Complaint by UNITED STATES DEPARTMENT OF JUSTICE, UNITED STATES OFFICE OF PERSONNEL MANAGEMENT.(Field, Brian) (Entered: 10/18/2018)
2018-11-15	16	MOTION for Summary Judgment by UNITED STATES DEPARTMENT OF JUSTICE, UNITED STATES OFFICE OF PERSONNEL MANAGEMENT (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Declaration Watters Decl., # 4 Declaration Hardy Decl., # 5 Text of Proposed Order)(Field, Brian) (Entered: 11/15/2018)
2018-12-05	17	Cross MOTION for Summary Judgment by NOEL F. WHITTAKER (Lynch, John) (Entered: 12/05/2018)
2018-12-05	18	Memorandum in opposition to re 16 MOTION for Summary Judgment filed by NOEL F. WHITTAKER. (See Docket Entry 17 to view document (jf) (Entered: 12/07/2018)
2018-12-07		NOTICE OF ERROR re 17 Motion for Summary Judgment; emailed to jlynch@ubalt.edu, cc'd 3 associated attorneys -- The PDF file you docketed contained errors: 1. Two-part docket entry, 2. DO NOT REFILE - Counsel is reminded to docket all parts of their filing (zjf, ) (Entered: 12/07/2018)
2019-01-28	19	Consent MOTION to Modify Briefing Schedule by UNITED STATES DEPARTMENT OF JUSTICE, UNITED STATES OFFICE OF PERSONNEL MANAGEMENT (Field, Brian). (Entered: 01/28/2019)
2019-01-29		MINUTE ORDER granting 19 Defendants' Consent Motion for Amendment of Briefing Schedule. The court sets the following schedule for further proceedings in this matter: Defendants' Reply in Support of Summary Judgment and Opposition to any Cross-Motion shall be filed on or before March 4, 2019. Plaintiff's Reply in Support of Summary Judgment shall be filed on or before April 1, 2019. Signed by Judge Amit P. Mehta on 01/29/2019. (lcapm3) (Entered: 01/29/2019)
2019-01-29		Set/Reset Deadlines: Defendant's Reply and Opposition due by 3/4/2019. Plaintiff's Reply due by 4/1/2019. (zjd) (Entered: 02/04/2019)
2019-03-04	20	REPLY to opposition to motion re 16 MOTION for Summary Judgment filed by UNITED STATES DEPARTMENT OF JUSTICE, UNITED STATES OFFICE OF PERSONNEL MANAGEMENT. (Field, Brian) (Entered: 03/04/2019)
2019-03-25	21	SURREPLY to opposition to motion re 17 Cross MOTION for Summary Judgment filed by NOEL F. WHITTAKER. (Lynch, John) Modified text to read surreply on 4/1/2019 (ztd). (Entered: 03/25/2019)
2019-03-25	22	Memorandum in opposition to re 16 MOTION for Summary Judgment filed by NOEL F. WHITTAKER; (See docket entry no. 21 to view.) (ztd) (Entered: 03/25/2019)
2019-06-21	23	MEMORANDUM OPINION AND ORDER denying the parties' 16 and 17 Motions for Summary Judgment. See the attached Memorandum Opinion for additional details. The parties shall meet and confer and propose a briefing schedule to the court on or before July 1, 2019. Signed by Judge Amit P. Mehta on 06/21/2019. (lcapm3) (Entered: 06/21/2019)
2019-06-21		Set/Reset Deadlines: Proposed Briefing Schedule due by 7/1/2019. (zjd) (Entered: 06/25/2019)
2019-06-28	24	Joint STATUS REPORT by UNITED STATES DEPARTMENT OF JUSTICE, UNITED STATES OFFICE OF PERSONNEL MANAGEMENT. (Field, Brian) (Entered: 06/28/2019)
2019-07-01		MINUTE ORDER. Having considered 24 the parties' Joint Motion for Scheduling Order, the court sets the following schedule for further proceedings in this matter: Defendants' Renewed Motion for Summary Judgment shall be filed on or before September 20, 2019; Plaintiff's Cross-Motion and Opposition shall be filed on or before November 4, 2019; Defendants' Reply and Opposition shall be filed on or before December 4, 2019; and Plaintiff's Reply shall be filed on or before December 31, 2019. Signed by Judge Amit P. Mehta on 07/01/2019. (lcapm3) (Entered: 07/01/2019)
2019-07-01		Set/Reset Deadlines: Defendants' Renewed Motion for Summary Judgment due by 9/20/2019. Plaintiff's Cross-Motion and Opposition due by 11/4/2019. Defendants' Reply and Opposition due by 12/4/2019. Plaintiff's Reply due by 12/31/2019.(zjd) (Entered: 07/01/2019)
2019-09-13	25	Consent MOTION for Extension of Time to file Motion for Summary Judgment by UNITED STATES DEPARTMENT OF JUSTICE, UNITED STATES OFFICE OF PERSONNEL MANAGEMENT (Field, Brian) (Entered: 09/13/2019)
2019-09-16		MINUTE ORDER granting 25 Defendant's Consent Motion for Extension of Time. The court sets the following schedule for further proceedings in this matter: Defendants' Renewed Motion for Summary Judgment shall be filed on or before October 4, 2019. Plaintiff's Opposition and Cross-Motion for Summary Judgment shall be filed on or before November 18, 2019. Defendants' Reply and Opposition shall be filed on or before December 18, 2019. Plaintiff's Reply shall be filed on or before January 14, 2020. Signed by Judge Amit P. Mehta on 09/16/2019. (lcapm3) (Entered: 09/16/2019)
2019-09-16		Set/Reset Deadlines: Defendant's Renewed Motion for Summary Judgment due by 10/4/2019. Plaintiff's Opposition and Cross-Motion Summary Judgment due by 11/18/2019. Defendant's Reply and Opposition due by 12/18/2019. Plaintiff's Reply due by 1/14/2020. (zjd) (Entered: 09/16/2019)
2019-10-03	26	MOTION for Summary Judgment by UNITED STATES DEPARTMENT OF JUSTICE, UNITED STATES OFFICE OF PERSONNEL MANAGEMENT (Attachments: # 1 Memorandum in Support, # 2 Declaration 2d Hardy Decl., # 3 Statement of Facts, # 4 Text of Proposed Order)(Field, Brian) (Entered: 10/03/2019)
2019-11-01	27	Renewed Cross MOTION for Summary Judgment cross-motion by NOEL F. WHITTAKER (Lynch, John) . (Entered: 11/01/2019)
2019-11-05	28	Memorandum in opposition to re 26 MOTION for Summary Judgment opposition and cross-motion filed by NOEL F. WHITTAKER. (Lynch, John) (Entered: 11/05/2019)
2019-12-10	29	Consent MOTION for Extension of Time to File Response/Reply as to 27 MOTION for Summary Judgment cross-motion by UNITED STATES DEPARTMENT OF JUSTICE, UNITED STATES OFFICE OF PERSONNEL MANAGEMENT (Field, Brian) (Entered: 12/10/2019)
2019-12-11	30	ORDER granting 29 Motion for Extension of Time to File Response/Reply. Defendants' Reply and Opposition shall be due on or before January 17, 2020. Plaintiff's Reply shall be due on or before February 14, 2020. See attached Order for additional details. Signed by Judge Amit P. Mehta on 12/11/2019. (lcapm3) (Entered: 12/11/2019)
2019-12-11		Set/Reset Deadlines: Defendants' Reply and Opposition due by 1/17/2020. Plaintiff's Reply due by 2/14/2020. (zjd) (Entered: 12/11/2019)
2020-01-17	31	REPLY to opposition to motion re 26 MOTION for Summary Judgment filed by UNITED STATES DEPARTMENT OF JUSTICE, UNITED STATES OFFICE OF PERSONNEL MANAGEMENT. (Field, Brian) (Entered: 01/17/2020)
2020-01-17	32	Memorandum in opposition to re 27 MOTION for Summary Judgment cross-motion filed by UNITED STATES DEPARTMENT OF JUSTICE, UNITED STATES OFFICE OF PERSONNEL MANAGEMENT. (Field, Brian) (Entered: 01/17/2020)
2020-02-07	33	REPLY to opposition to motion re 27 MOTION for Summary Judgment cross-motion for summary judgment filed by NOEL F. WHITTAKER. (Lynch, John) (Entered: 02/07/2020)
2020-02-07	34	ENTERED IN ERROR.....REPLY to opposition to motion re 27 MOTION for Summary Judgment cross-motion filed by NOEL F. WHITTAKER. (Lynch, John) Modified on 2/10/2020 (jf). (Entered: 02/07/2020)
2020-02-10		NOTICE OF CORRECTED DOCKET ENTRY: Document No. re 34 Reply to opposition to Motion was entered in error as a duplicate entry to 33 . (jf) (Entered: 02/10/2020)
2020-10-15	35	MEMORANDUM OPINION re: 26 Defendant's Renewed Motion for Summary Judgment and 27 Plaintiff's Renewed Cross-Motion for Summary Judgment. Please see the attached Memorandum Opinion for additional details. Signed by Judge Amit P. Mehta on 10/15/2020. (lcapm3) (lcas) (Entered: 10/15/2020)
2020-10-15	36	ORDER: For the reasons stated in the 35 Memorandum Opinion, the court grants in full 26 Defendants' Renewed Motion for Summary Judgment and denies 27 Plaintiff's Renewed Cross-Motion for Summary Judgment. Please see the attached Order for further details. Signed by Judge Amit P. Mehta on 10/15/2020. (lcapm3) (Entered: 10/15/2020)
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