Judge May Tell FBI to Dig for Polygraph Files

     (CN) – A student who used the Freedom of Information Act to obtain controversial polygraph testing records is entitled to production from the FBI, a federal judge ruled.
     While studying for her doctoral degree at the University of Virginia, Kathryn Sack submitted six FOIA requests for FBI records between 2009 and 2011 regarding polygraph bias “illegal under equal employment law,” as well as records on the FBI polygraphers themselves.
     The Office of Personnel Management received a separate request from Sack, seeking records on why some federal agencies that use polygraphs might not be reviewed. OPM forwarded the demand to the Bureau of Alcohol, Tobacco, and Firearms (ATF) and the Justice Management Division.
     Though the FBI searched its central records system, it found no records responsive to Sack’s requests, according to a declaration from Record/Information Dissemination Section Chief David Hardy.
     The FBI did find 133 pages of responsive records in its Security Division and Polygraph Unit, however, and allegedly asked its Behavior Sciences Unit, Laboratory Division, and Equal Employment Opportunity Affairs Office, among others, to also cough up relevant records.
     While the Mobile and Birmingham Field Offices said they found no records, the FBI’s intranet returned chapters of security policy manuals using the terms “polygraph” and “polygraph bias,” the agency noted.
     Order 2123.1, an outline of “Pre-Employment Polygraph Special Agent Screening Program,” and a “clarifying” 2010 interagency email, were among some files forwarded from Personnel Management that ATF chose to withhold, Disclosure Division Chief Stephanie Boucher said.
     The bureau cited several FOIA exemptions, arguing that the withheld files solely related to internal matters, knowledge of which could let applicants “circumvent” polygraph procedures.
     Sack filed suit to compel ATF and the FBI to conduct additional searches and provide withheld documents responsive to her requests.
     U.S. District Judge Beryl Howell in Washington refused on March 20, 2013, to let the CIA throw out Sack’s request to re-review 32 redacted documents published on its Records Search Tool (CREST) to see if any of the information could be released.
     The Department of Justice moved for summary judgment on Sack’s claims, arguing that it conducted adequate searches and properly withheld records under certain FOIA exemptions.
     Sack opposed, challenging only how the department repeatedly directed her to a Department of Defense polygraph institute, and withheld certain records regarding ATF’s administration of polygraphs to prospective special agents.
     U.S. District Judge Christopher Cooper partially denied the feds summary judgment Thursday, upholding Sack’s request for FBI records regarding the National Center for Credibility Assessment fka the Defense Academy for Credibility Assessment (DACA).
     “While Hardy’s affidavit is otherwise comprehensive, it does not indicate whether the agency searched specifically for records regarding DACA,” Cooper wrote. “Nor does it reveal whether employees searched all hardcopy records or only a selection, or what terms they used to search electronic records. As a result, the government has not adequately described the process by which it searched for records regarding DACA, including ‘the search terms and the type of search performed.'”
     The feds failed to show that the withheld files are not of public interest, the ruling states.
     “The public may well want to know, as Sack does, how agencies employ somewhat-controversial polygraph techniques to screen job applicants,” Cooper wrote. “Thus, construing Exemption 2 narrowly, it cannot extend to ATF’s polygraph program because this is not trivial personnel information.”

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