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This is the Defense Security Service's (DSS's) letter of denial in response to's Freedom of Information Act appeal dated 20 June 2002 for release of DoDPI's Federal PDD Examiner Handbook, which requested on 14 March 2002 and which request DSS partially denied on 9 April 2002.

ALEXANDRIA, VA 22314-1651

JUL 12 2002

Mr. George W. Maschke
Hart Nibbrigkade 22
2597 XV The Hague

RE: FOIA #073-22(2)(Appeal)

Dear Mr. Maschke:

Reference is made to your June 20, 2002, email in which you appeal the decision of the Defense Security Service (DSS), Office of Freedom of Information and Privacy, which informed you that DSS was withholding from you certain portions of the Federal Psychophysiological Detection of Deception Examiner Handbook (PDD Examiner Handbook) as published by the Department of Defense Polygraph Institute (DODPI). After a careful review of this matter, I have determined that your appeal should be denied.

By email received on 14 March 2002, you requested pursuant to the Freedom of Information Act (FOIA), access to the current version of the PDD Examiner Handbook. By letter dated April 9, 2002, DSS provided you with 20 pages of releasable material from the handbook and informed you that the remainder of the material was exempt from the mandatory disclosure provisions of the FOIA pursuant to Exemption (b)(2) and (b)(7)(E). By email received on June 20, 2002, you appealed DSS's decision to withhold portions of the Handbook, based on your assertion that there is a compelling public interest in its disclosure.

As previously stated to you in DSS correspondence dated April 9, 2002, the information withheld pursuant to Exemption (b)(2) and (b)(7)(E) includes predominantly internal guidelines, techniques and procedures used to instruct law enforcement and national security investigators in the conduct of polygraph examinations and which, if disclosed, could reasonably be expected to risk circumvention of the polygraph by others. Exemption (b)(2) and (b)(7)(E) specifically authorizes the withholding of law enforcement manuals and information (techniques and procedures) which could significantly impede the effectiveness of a law enforcement activity or process if disclosed. Hawkes v. IRS, 467 F.2d 787, 795 (6th Cir. 1972); Hardy v. ATF, 631 F.2d 653. 656 (9th Cir. 1980).

In making our determination on whether the PDD Examiner Handbook was properly withholdable under the above cited exemptions, we looked at whether the material was "predominantly internal" and if its disclosure would allow circumvention of an agency rule, policy, or statue [sic], thereby impeding the agency in the conduct of its mission. Our conclusion is that the materials are "predominantly internal" in that they are designed solely to instruct and guide law enforcement and national security investigators in the conduct of polygraph examinations and do not "regulate the public." See Cox v. United States Department of Justice, 601 F.2d 1, 5 (D.C. Cir. 1979) per curiam. DSS also concluded that since the material identifies specific applications of techniques and procedures used in the polygraph examinations, disclosure could enable circumvention of the polygraph test by others. Crooker v. ATF, 670 F.2d 1051, 1074 (D.C. Cir. 1981) (en banc); Hale v. United States Dep't of Justice, 973 F.2d 894, 902-03 (10 Cir. 1992); Pray v. Dep't of Justice, 902 F. Supp. 1, 4 (D.D.C. 1995). I note that this is the third

time DSS has explained to you our rationale for withholding this type of polygraph material. Reference your FOIA appeal (#036-20(2) and FOIA appeal (#033-20(2).

With regard to your argument that there is a compelling public interest in disclosure of the material, whether there is any public interest in its disclosure is legally irrelevant under the "anti-circumvention" aspect of Exemption 2. See Institute for Policy Studies v. Department of the Air Force, 676 F. Supp. 3, 5 (D.D.C. 1987). Rather, the concern under exemption 2 for information of this type is that a FOIA disclosure should not "benefit those attempting to violate the law and avoid detection." Cooker, 670 F.2d at 1054.

You also indicate in your correspondence that the essential elements of the polygraph techniques outlined in the PDD Examiner Handbook were developed outside the federal government and the polygraph community has made documentation publicly available itself. DSS is not disputing the fact that the PDD Handbook may contain some information that is similar to descriptions of polygraph techniques made publicly available by the polygraph community. However, commonly known procedures have been protected from disclosure when "the circumstances of their usefulness" may not be widely known, or "their use in concert with other elements of an investigation and in their totality directed toward a specific investigative goal constitute a "technique" which merits protection." See Parker v. United States Dep't of Justice, No. 88-0760, slip op. at 8 (D.D.C. Feb 28, 1990); Hassan v. FBI, No. 91-2189, slip op. at 8-10 (D.D.C. July 13, 1992). DSS believes what may be commonly known among the polygraph community does not necessary [sic] mean that it is widely known among the public. If information within the PDD Handbook were in fact widely known and publicly available, it would not be necessary for persons to request the information under the FOIA. The fact remains that the PDD Examiner Handbook is not publicly available and is treated by DoDPI as an internal document.

In light of the above legal standards, I believe that the purposes of Exemption (b)(2) and (b)(7)(E) are met; therefore I will not reverse Mr. Blake's initial decision.

Pursuant to 5 U.S.C. 552(a)(4)(B), you may seek judicial review of this determination by filing suit against the DSS. Such a suit may be filed in the United States District Court in the district where yoru principal place of business is located, the District of Columbia, or where the documents are located.


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