The FBI Story

The United States District Court fo the District of Columbia (Judge Contreras) has granted and denied in part a FOIA request 

Plaintiff United for FBI Integrity brings this action under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, against Defendant U.S. Department of Justice (“DOJ”). Plaintiff seeks documents from the Federal Bureau of Investigation (“FBI”) and the DOJ’s Office of the Inspector General (“OIG”) pertaining to former FBI Associate Deputy Director Jeffrey S. Sallet’s retirement and any possible allegations of misconduct against Mr. Sallet.

Real parties in interest

To make sense of this FOIA request, it is helpful to introduce two central figures. Michael S. Zummer serves as counsel for Plaintiff, United for FBI Integrity, a non-profit organization that seeks reform of the FBI. Zummer Decl. ¶ 6, ECF No. 15-3; see generally Complaint (“Compl.”) ECF No. 1. Mr. Zummer was previously in-house counsel for Plaintiff from August 2020 until January 2022, and Mr. Zummer is currently president of “Accountability FBI, Inc.” which is a distinct organization from Plaintiff. Zummer Decl. ¶ 6. Mr. Zummer worked for the FBI from 1999 to 2003, and then again from 2008 through 2016, when he was served as a special agent in New Orleans, LA. Id. ¶ 2.

In 2016, Mr. Zummer sent a letter to Judge Kurt D. Engelhardt of the U.S. District Court for the Eastern District of Louisiana, describing what he believed were ethical violations by the U.S. Attorney’s Office for the Eastern District of Louisiana in the case. Id. ¶ 64. Mr. Zummer sought but did not receive permission from the DOJ to send the letter. Id. ¶ 76. After Mr. Zummer sent the letter, the FBI suspended, and later revoked, his security clearance. Id. ¶¶ 79, 83. The loss of Mr. Zummer’s security clearance ended his employment with the FBI. Id. ¶ 83.

Jeffrey S. Sallet served as Associate Deputy Director of the FBI, the third-highest position with the FBI, for approximately nine months between February 2021 and November 2021. Id. ¶¶ 7–8. Mr. Sallet worked for the FBI for more than 25 years, id. ¶ 56, and served as Special Agent in Charge of the FBI’s New Orleans office at the time that Mr. Zummer sent his letter in 2016, id. ¶¶ 12, 64. Mr. Zummer believes that Mr. Sallet was the “primary decisionmaker” in having his security clearance suspended, and while it is unclear from the record if this characterization is correct, Mr. Sallet did play some role in the process. Id. ¶ 79.

Mr. Zummer reported the revocation of his security clearance to the OIG, claiming it was retaliatory action for his protected First Amendment speech to Judge Engelhardt. Id. The OIG, which examines misconduct within the DOJ and FBI, conducted an investigation and found that Mr. Zummer’s disclosure to a federal judge was not protected by the FBI’s whistleblower regulations. See Zummer Decl., Ex. E at 41, ECF No. 15-4. But the OIG did find “troubling errors and omissions” related to the suspension of Mr. Zummer’s security clearance and recommended these be considered in further proceedings about his clearance. Id. In this report, OIG also investigated Mr. Zummer’s claims that he experienced an earlier episode of retaliation from the FBI based on his 2013 disclosure to the OIG of what he believed to be a conflict of interest within the USAO. Id. The OIG found “insufficient evidence” to support this retaliation claim. Id.

Zummer sued and lost in an effort to restore his security clearence but secured an unredacted copy of the his letter.

Further

Lastly, through Mr. Zummer, Plaintiff alleges that Mr. Sallet’s retirement after nine months as Associate Deputy Director was “sudden” and surprising to “[v]arious FBI employees” because it was not announced beforehand. Zummer Decl. ¶ 13. Mr. Zummer further claims that he “heard from various current and former FBI employees that allegations of sexual impropriety against Sallet had caused him to retire,” id. ¶ 14, including that Mr. Sallet made sexual advances or conducted sexual relations with other FBI employees, and made inappropriate comments in the workplace, id. Mr. Zummer does not provide names or any identifying information about the FBI employees he purportedly spoke to. Id. Beyond Mr. Zummer’s word about what he has heard from others, Plaintiff presents no other evidence for these contentions about Mr. Sallet’s retirement and conduct.

Conclusion

The upshot of the Court’s analysis is that the FBI and OIG may not permissibly issue a Glomar response as to the existence of responsive records that concern Mr. Sallet’s role in the loss of Mr. Zummer’s security clearance and any records about allegations that Mr. Sallet violated Mr. Zummer’s constitutional rights. See PETA, 745 F.3d at 544–545 (“Because there exists a category of responsive documents for which a Glomar response would be unwarranted, NIH’s assertion of a blanket Glomar response to the second request cannot be sustained.”). “[A]n agency may issue a blanket Glomar response … only when ‘the circumstances justify a Glomar response’ for all categories of responsive records.” Project for Priv. & Surveillance Accountability, Inc. v. United States Dep’t of Just., 633 F. Supp. 3d 108, 122 (D.D.C. 2022) (quoting PETA, 745 F.3d at 541). Mr. Sallet’s privacy interest in the specified category is low, and the public interest is sizable. Thus, the agencies must search for any records concerning complaints, allegations, investigative files, and dispositions of any allegations into Mr. Sallet that relate to the alleged 2016 retaliation incident and any violation of Mr. Zummer’s constitutional rights. Once such search has been completed, if responsive records are located the FBI and OIG must justify any withholdings in the traditional manner. But because Mr. Sallet’s privacy interests otherwise overcome any public interest into a broad inquiry into his conduct between 2016 and 2021, the FBI and OIG are justified in asserting a Glomar response as to the existence of records about complaints or investigations into Mr. Sallet for any other reason.

Finally, “[t]he question of disclosure of the existence or nonexistence [of records] … is a distinct question from disclosure of the content of the records.” McMichael v. U.S. Dep’t of Def., 910 F. Supp. 2d 47, 52 (D.D.C. 2012). The Court does not presently rule whether any responsive records must be released.

(Mike Frisch)