Lamb v. Millennium Challenge Corp.

• Decision Date: 24 September 2018
• Docket Number: Civil Action No. 16-765 (RDM)
• Citation: 334 F.Supp.3d 204
• Parties: Jerry Goralski LAMB, Plaintiff, v. MILLENNIUM CHALLENGE CORPORATION, et al., Defendants.
• Court: U.S. District Court — District of Columbia

334 F.Supp.3d 204

Jerry Goralski LAMB, Plaintiff,

v.MILLENNIUM CHALLENGE CORPORATION, et al., Defendants.

Civil Action No. 16-765 (RDM)

United States District Court, District of Columbia.

Signed September 24, 2018

Jerry Goralski Lamb, Brandywine, MD, pro se.

Jason Todd Cohen, U.S. Attorney's Office, Washington, DC, for Defendants.

MEMORANDUM OPINION AND ORDER

RANDOLPH D. MOSS, United States District Judge

Jerry Goralski Lamb, proceeding pro se , brings this action under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, and the Privacy Act, 5 U.S.C. § 552a, seeking records relating to his background investigation and suitability determination to work as a contractor for the Millennium Challenge Corporation ("MCC"), a foreign assistance corporation established in the executive branch of the federal government. In a prior opinion, the Court dismissed a number of Lamb's claims and granted summary judgment, in part, in favor of the MCC. See Lamb v. Millennium Challenge Corp. , 228 F.Supp.3d 28, 36–38 (D.D.C. 2017) (" Lamb I "). In one respect, however, the Court concluded that the MCC had failed to carry its burden; although the MCC indicated that its search located five responsive records, including "the Report of Investigation," when it responded to Lamb's FOIA/Privacy Act request, the agency failed to make any mention of the Report of Investigation. Id. at 36. The Court also addressed Lamb's motion for leave to file a second amended complaint and granted that motion in part and denied it in part. Id. at 39–47. As to several proposed claims, the Court held that the amendment would be futile, but—among other claims—the Court permitted Lamb to add FOIA and Privacy Act claims against the Department of State, which assisted the MCC in conducting Lamb's background investigation. Id. at 42.

The MCC and the State Department released additional records to Lamb, and both agencies now move for summary judgment. Dkt. 63. Lamb opposes that motion and cross-moves for summary judgment in his favor. Dkt. 65. For the reasons explained below, the Court will GRANT in part and DENY in part Defendants' motion for summary judgment and will DENY Lamb's cross-motion.

I. BACKGROUND

Because the relevant facts are set forth in detail in the Court's prior opinion, Lamb I , 228 F.Supp.3d at 33–35, the Court will only briefly summarize them here. On February 22, 2016, Lamb began work as a contractor for the MCC in a position that required a "favorable background check." Id. at 34. Although Lamb believed that he had been cleared for the job, about two weeks after starting work he was contacted by MCC "security" and was told that a State Department contractor needed to interview him as part of his background investigation. Id. Lamb's background investigation was then conducted in part by the MCC and in part by the State Department, which, at times, assists the MCC in completing background investigations. Id. On April 18, 2016, MCC officials confiscated Lamb's government identification, removed him from the premises, and terminated his employment. Id. Later, Lamb learned from his employer, which held the contract with the MCC, that he was terminated because his "security check came back unfavorable." Id. (citation omitted).

Seeking to get to the bottom of the matter, Lamb submitted a FOIA/Privacy Act request for "copies of all information maintained about himself" to the MCC, and, when it failed timely to respond, he brought this suit. Id. Lamb amended his complaint as of right a month later, adding additional claims against the MCC as well as claims against the State Department contract-employee who had handled his background check. Id. The MCC subsequently released a number of records in response to Lamb's request, id. at 36, and moved for summary judgment, id. at 33. Lamb, in turn, cross-moved for summary judgment and moved for leave to file a second amended complaint. Id. And, finally, the State Department contract-employee moved to dismiss. Id.

After considering the various motions, the Court issued an opinion dismissing the State Department contract-employee; granting the MCC's motion for summary judgment in part and denying it in part; and granting Lamb's motion for leave to amend in part and denying it in part. Id. at 47. As relevant to the pending motions, the Court denied the MCC's motion for summary judgment in part because the declaration submitted in support of the motion referred to a "Report of Investigation" ("ROI"), but its letter accompanying the release of records to Lamb made no mention of the ROI. Id. at 36–37. The Court also declined to grant Lamb leave to add a number of claims to his complaint on grounds of futility but did allow him to add a FOIA and Privacy Act claim against the State Department and to add a due process claim against the MCC. Id. at 39–47.

Lamb promptly filed a second amended complaint, which, among other things, added FOIA/Privacy Act claims against the State Department and added three claims against James R. Blades, an MCC official. Dkt. 50. But, a month later, Lamb voluntarily dismissed his due process claims against Blades. Dkt. 53. Moreover, although Lamb did not dismiss his Privacy Act claim against Blades, the Court previously held that Blades is not subject to suit under the Privacy Act. Lamb I , 228 F.Supp.3d at 40. Accordingly, the only claims that remain are Lamb's FOIA and Privacy Act claims against the MCC and the State Department challenging the adequacy of the searches they conducted and their failure to release all responsive records.¹

The MCC and State Department, having released additional records, now move for summary judgment, Dkt. 63, and Lamb cross-moves for summary judgment, Dkt. 65.

II. ANALYSIS

Unlike many FOIA/Privacy Act cases, the scope of Lamb's request is narrow—he seeks only the records "relied upon in" his background investigation, Dkt. 63 at 5 (Def.'s SUMF ¶ 9)—and the agencies have withheld very little. The MCC says that it has released in full all of the records that it has located, and the State Department released thirteen documents in full, released one with only one redaction (a third party's social security number), and referred one document to the Department of Defense. The Department of Defense, in turn, released that document, which is 121-pages long, with redactions (names, signatures, phone numbers and personally identifiable information of third parties and Department of Defense employees) on only two pages. But, notwithstanding the minimal nature of the withholdings, the Court concludes that it needs some additional information before it can reach a final decision in this case.

A. Adequacy of Searches

The adequacy of an agency's search for records "is analyzed under the same standard" for purposes of both FOIA and the Privacy Act. Thompson v. U.S. Dep't of Justice , 146 F.Supp.3d 72, 82 (D.D.C. 2015). To prevail on summary judgment, the agency must submit declarations that " ‘denote which files were searched,’ [and] by whom those files were searched, and [that] reflect a ‘systematic approach to document location.’ " Liberation Newspaper v. U.S. Dep't of State , 80 F.Supp.3d 137, 144 (D.D.C. 2015) (quoting Weisberg v. U.S. Dep't of Justice , 627 F.2d 365, 371 (D.C. Cir. 1980) ); see also Baker & Hostetler LLP v. U.S. Dep't of Commerce , 473 F.3d 312, 318 (D.C. Cir. 2006) ; Oglesby v. U.S. Dep't of the Army , 920 F.2d 57, 68 (D.C. Cir. 1990). Declarations "that include search methods, locations of specific files searched, descriptions of searches of all files likely to contain responsive documents, and names of agency personnel conducting the search are considered sufficient." Ferranti v. Bur. of Alcohol, Tobacco & Firearms , 177 F.Supp.2d 41, 47 (D.D.C. 2001) (citing Weisberg v. United States Dep't of Justice , 705 F.2d 1344, 1348 (D.C.Cir.1983) ). Those declarations, moreover, "are accorded a presumption of good faith, which cannot be rebutted by ‘purely speculative claims about the existence and discoverability of other documents.’ " SafeCard Servs., Inc. v. SEC , 926 F.2d 1197, 1200 (D.C. Cir. 1991) (quoting Ground Saucer Watch, Inc. v. CIA , 692 F.2d 770, 771 (D.C. Cir. 1981) ). But where "a review of the record raises substantial doubt, particularly in view of ‘well defined requests and positive indications of overlooked materials,’ summary judgment is inappropriate." Valencia-Lucena v. U.S. Coast Guard , 180 F.3d 321, 326 (D.C. Cir. 1999) (citation omitted).

As explained below, there is ample evidence that the State Department and the MCC conducted adequate searches.

1. State Department

The State Department's search for responsive records proceeded in several steps. First, the Information Programs and Services ("IPS") office—the State Department office charged with responding to FOIA and Privacy Act requests—screened Lamb's submission. Dkt. 63-3 at 2 (Stein Decl. ¶ 2). Based on that review, it "determined that the only [d]epartment component reasonably likely to contain responsive records was the Bureau of Diplomatic Security" ("DS"), id. at 4 (Stein Decl. ¶ 10), which, among other things, "conducts personnel security investigations," id. (Stein Decl. ¶ 11). The DS records system is "decentralized," and there is "no single database, application, or file structure that can be searched that would cover all records." Id. (Stein Decl. ¶ 12). Accordingly, the DS FOIA office screens incoming requests and "determines which DS components are reasonably likely to have responsive records." Id. at 5 (Stein Decl. ¶ 13). Here, after reviewing Lamb's request, a "Senior Reviewer" determined that the only component likely to have responsive records was the "Office of Personnel Security and Suitability" ("PSS")—the arm of DS that oversees the "personnel security program, including background investigations of applicants who have applied for security clearances or positions of public trust" and, crucially, "conducts background investigations on behalf of ... the Millennium...