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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

MICHAEL SPENCE Plaintiff

* * vs. * Civil No. L-05-3127

NCI INFORMATION SYSTEMS, INC. Defendant

* ****** MEMORANDUM

Now pending is Plaintiff Michael Spence's Motion to Compel testimony from Agents at the Air Force Office of Special Investigations ("AFOSI"). AFOSI, which is not a party to this case, and Defendant NCI Information Systems, Inc. ("NCI") oppose the motion. The Court held a hearing on Spence's motion on September 24, 2007 and is now prepared to issue its ruling. For the following reasons, the motion will be DENIED. I. Background

Spence applied for a civilian support position with AFOSI in April 2004. In connection with his application, AFOSI conducted a routine investigation into Spence's background, including interviews with his spouse, neighbors and former employers. Spence was also asked to complete an "Applicant Financial Questionnaire." After completing its investigation, AFOSI decided not to hire Spence. According to internal reports and recommendation forms, AFOSI's investigation revealed that Spence had experienced financial difficulties and problems with his neighbors. The investigation also revealed that former colleagues and supervisors spoke unfavorably of Spence and did not

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recommend him for employment. According to a statement by AFOSI Chief of General Law Susan Knutson (formerly Jobe) during the hearing on Spence's motion, any one of these findings, standing alone, is an appropriate ground for a decision not to hire an applicant for AFOSI duty. Spence initiated this lawsuit against NCI, his former employer, in November 2005, claiming that NCI employees made false and defamatory statements during their interviews with AFOSI investigators. The case was originally filed in the Circuit Court for Anne Arundel County but was timely removed to federal court on grounds of diversity of citizenship. In accordance with a subpoena issued by this Court in April 2006, AFOSI provided the parties with a report summarizing its investigation into Spence's background. The report names the AFOSI Special Agents who participated in the investigation but fails to specify which Agent(s) spoke to the NCI employees. In November 2006, using the prescribed AFOSI procedures, Spence asked the Air Force to identify the Agent(s) who interviewed the NCI employees and to make those Agents available for depositions. In an email dated December 13, 2006, Knutson denied Spence's request. In support of the Air Force's position, Knutson wrote: "allowing [AFOSI] agents to be interviewed for every pre-employment investigation of every potential employee for private litigation could have a serious detrimental effect on the mission of AFOSI in that it would prevent agents from performing their duties while tied up in litigation in which the Air Force has no direct interest." (Docket No. 61, Ex. A). Knutson further explained that "in this time of war, AFOSI must be available to deploy anywhere to support our worldwide mission. Having agents tied up in private litigation greatly hinders that mission." Id.

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On February 8, 2007, Spence filed the instant Motion to Compel, seeking an order directing AFOSI to identify the investigator(s) who interviewed the NCI employees as well as the officer(s) who made the decision not to hire him. Spence further requests that each of these individuals be made available for depositions. In support of its initial and "supplemental"1 Responses to Spence's Motion, AFOSI has submitted the Declarations of Col. Cheryl H. Thompson2 and Susan Knutson,3 respectively. Taken together, these declarations provide substantially all of the information that Spence requests. They also expand significantly upon Knutson's initial explanation of AFOSI's decision denying Spence's request for deposition discovery. In her Declaration of September 24, 2007, Knutson provides the name and location of the AFOSI Special Agent (hereinafter "Special Agent 1") who interviewed the NCI employees. She further discloses that Special Agent 1 is currently working on a classified special access program. According to Knutson, Special Agent 1 retained no notes documenting his or her interviews with NCI employees, other than the summaries contained in the investigation report distributed in accordance with the Court's subpoena in mid-2006. Building on earlier disclosures by Col. Thompson, Knutson also identifies the individuals After Spence's Motion was fully briefed, the Court scheduled a hearing for September 24, 2007 (Docket No. 72). In advance of the hearing, AFOSI filed a Supplemental Opposition to Spence's Motion to Compel (Docket No. 74), as well as a motion requesting leave to file the Knutson Declaration (and attachments) under seal (Docket No. 75). On the morning of the hearing, AFOSI filed a copy of Declaration with the Court and both parties. Because the Court agrees that the Knutson Declaration contains sensitive information, i.e., the names, location, and current assignments of AFOSI personnel, it hereby GRANTS AFOSI's Motion to File Documents Under Seal.
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Col. Thompson is the AFOSI Staff Judge Advocate at Andrews Air Force Base. As stated above, Ms. Knutson (formerly Jobe) is the AFOSI Chief of General Law. -3-

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responsible for AFOSI's decision not to hire Spence. According to Knutson, AFOSI's decision on Spence's application resulted from the following three-stage process: after the background investigation, the Special Agent who personally interviewed Spence (hereinafter "Special Agent 2"), together with a "reviewing official" who did not participate in the investigation, made the initial recommendation that Spence not be hired.4 The name and location of Special Agent 2 is disclosed in Knutson's declaration, and the signature of the reviewing official appears in a separate attachment. Their recommendation was forwarded for approval by the Command Applicant Review Board (CARB), a rotating body made up of "high-ranking agents and support staff."5 Declaration of Cheryl H. Thompson,

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