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Dubuque v. United States Department of the Air Force

United States District Court, E.D. Missouri, Eastern Division

November 6, 2017

MARK W. DUBUQUE, Plaintiff,
v.
UNITED STATES DEPARTMENT OF THE AIR FORCE and AIR FORCE OFFICE OF SPECIAL INVESTIGATIONS, Defendants.

          MEMORANDUM AND ORDER

          RODNEY W. SIPPEL, UNITED STATES DISTRICT JUDGE.

         Plaintiff Mark W. Dubuque (“Dubuque”) alleges that Defendants United States Department of the Air Force and Air Force Office of Special Investigations (collectively, “Defendants”) violated the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, by redacting and failing to produce certain documents concerning a polygraph examination of Dubuque. Defendants submitted a motion for summary judgment. Based upon a review of the record before the court, I will enter summary judgment in Defendants' favor.

         I. Background

         The following facts in this matter are undisputed. While Dubuque was employed by the Boeing Company, Defendants investigated Dubuque in a matter described as “Sabotage of Company owned Files/Programs and Mishandling Classified Information” (the “Investigation”). In connection with the Investigation, Dubuque lost his access to work on Special Access programs. On December 10, 2013, Dubuque was subject to a polygraph examination.

         On March 31, 2015, Dubuque filed a FOIA request with Defendants requesting various records related to the Investigation. The requested documents addressed matters including Dubuque's Special Access Program clearance, classified work agreements, and the polygraph examination. On December 7, 2015, Dubuque filed an initial lawsuit against Defendants seeking compliance with the FOIA request. See Dubuque v. U.S. Dep't of the Air Force, et al., Cause No. 4:15-CV-01793 SNLJ (the “Initial Lawsuit”). Defendants produced more than two hundred documents to Dubuque in connection with the Initial Lawsuit. However, Defendants withheld certain documents and redacted information, including documents related to the polygraph examination. Upon settling the Initial Lawsuit and addressing a dispute concerning attorneys' fees, Dubuque and Defendants submitted a Joint Stipulation of Dismissal with Prejudice, which was so ordered by United States District Judge Limbaugh, Jr. on June 16, 2016.

         Notwithstanding the settlement in the Initial Lawsuit, Dubuque retained the ability to file an administrative appeal and file the instant action. The parties remain in disagreement as to Defendants' ability to assert an exemption for materials related to the polygraph examination of Dubuque (the “Polygraph Request”).[1] In responding to the Polygraph Request, Defendants redacted portions of the polygraph-related documents and withheld some materials entirely, asserting FOIA exemptions. Dubuque still seeks polygraph-related documents, such as the questions asked and answers given during the polygraph examination. Dubuque also seeks disclosure of polygraph charts, results, and physiological data, referred to as the “Technical Data, ” which were withheld entirely. The parties do not appear to dispute the general nature of the documents and information withheld, nor Defendants' stated rationale for nondisclosure.

         As a result of the parties' inability to agree on the Polygraph Request, Dubuque filed this lawsuit. Dubuque seeks injunctive and other appropriate relief, specifically, the disclosure and release of responsive documents to the Polygraph Request and attorneys' fees and costs. Defendants have moved for summary judgment as a matter of law. Although Dubuque did not submit a cross-motion for summary judgment, the parties have suggested to the Court that this case should be decided at the summary judgment stage. See Doc. No. [9]. Dubuque further submitted a Motion to Strike in connection with the Motion for Summary Judgment, concerning the validity of certain assertions by Defendants. See Doc. No. [35].

II. Legal Standard

         Summary judgment is appropriate if the evidence, viewed in the light most favorable to the nonmoving party, demonstrates that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Lynn v. Deaconess Medical Center, 160 F.3d 484, 486 (8th Cir. 1998) (citing Fed.R.Civ.P. 56(c)). The party seeking summary judgment bears the initial responsibility of informing the court of the basis of its motion and identifying those portions of the affidavits, pleadings, depositions, answers to interrogatories, and admissions on file which it believes demonstrates the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). When such a motion is made and supported by the movant, the nonmoving party may not rest on his pleadings but must produce sufficient evidence to support the existence of the essential elements of his case on which he bears the burden of proof. Id. at 324. In resisting a properly supported motion for summary judgment, the plaintiff has an affirmative burden to designate specific facts creating a triable controversy. Crossley v. Georgia Pacific Corp., 355 F.3d 1112, 1113 (8th Cir. 2004).

         FOIA aims “to provide wide-ranging public access to government documents.” Miller v. U.S. Dep't of Agric., 13 F.3d 260, 262 (8th Cir. 1993). FOIA generally mandates the disclosure of records upon request, but provides for nine statutory exemptions which allow the government to withhold information and documentation under certain circumstances. 5 U.S.C. § 552(b). “These exemptions are to be narrowly construed to ensure that disclosure, rather than secrecy, remains the primary objective of the Act.” Miller, 13 F.3d at 262 (citing Dep't of the Air Force v. Rose, 425 U.S. 352, 361 (1976)). FOIA provides for de novo review by a district court of an agency decision to withhold requested information. 5 U.S.C. § 552(a)(4)(B). The agency has the burden of demonstrating that an exemption applies. Id. “In a FOIA case, summary judgment is available to a defendant agency where ‘the agency proves that it has fully discharged its obligations under FOIA, after the underlying facts and the inferences to be drawn from them are construed in the light most favorable to the FOIA requester.'” Mo. Coal. for Env't Found. v. U.S. Army Corps of Eng'rs, 542 F.3d 1204, 1209 (8th Cir. 2008) (quoting Miller v. U.S. Dep't of State, 779 F.2d 1378, 1382 (8th Cir. 1985)). In considering a motion for summary judgment under FOIA, the court's primary role “is to review the adequacy of the affidavits and other evidence presented by the Government in support of its position.” Cox v. U.S. Dep't of Justice, 576 F.2d 1302, 1312 (8th Cir. 1978). “If the Government fairly describes the content of the material withheld and adequately states its ground for nondisclosure, and if those grounds are reasonable and consistent with the applicable law, the district court should uphold the Government's position.” Id.

         III. Discussion

         After a review of the record before me and based upon the reasons that follow, I will grant Defendants' Motion for Summary Judgment. The parties disagree as to whether Defendants were entitled to withhold documents and redact information related to the Polygraph Request pursuant to Exemption 7(E), which is codified at 5 U.S.C. § 552(b)(7)(E) (“Exemption 7(E)”).[2]

         a. Exemption 7(E)

         Exemption 7(E) authorizes agency non-disclosure of “records or information compiled for law enforcement purposes” if production “would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines 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). Under Exemption 7, an agency must first meet the threshold of demonstrating that the documents sought were “compiled for law enforcement purposes.” 5 U.S.C. § 552(b)(7); see John Doe Agency v. John Doe Corp., 493 U.S. 146, 153 (1989) (“Before it may invoke [Exemption 7], the Government has the burden of proving the existence of ... a compilation for such a purpose.”). Here, this threshold is ...


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