TREVOR N. McFADDEN, United States District Judge.
At issue in this case are Freedom of Information Act requests for information related to a 2012 drone strike in Yemen. Plaintiffs Faisal Bin Ali Jaber, a citizen of Yemen, and Edward Pilkington, a member of the news media, submitted the requests at issue in this case to various components of the Department of Defense, the Department of Justice, the Department of State, and the Department of the Treasury. Before this court are the Defendants' motion for summary judgment and the Plaintiffs' cross-motion for partial summary judgment. Because each Defendant has sufficiently demonstrated the appropriateness of its Glomar response and the adequacy of its search for responsive records not implicated by that response, the Defendants' motion for summary judgment will be granted and the Plaintiffs' cross-motion for partial summary judgment will be denied.
According to Plaintiffs' amended complaint, the Defendants possess or control records pertaining to a drone strike carried out on August 29, 2012, in or near the Yemeni village of Khashamir. Am. Compl. at ¶¶ 5, 7, 9-11. The attack allegedly killed three men whose identities are unknown but who, according to sources not clearly identified in the amended complaint, were members of al-Qaeda. Id. at ¶ 12. In addition, the amended complaint alleges that the attack killed Salem and Waleed bin Ali Jaber, civilians who had spoken out against Al-Qaeda. Id.
The Plaintiffs submitted six FOIA requests to the Defendants between February 9 and February 12, 2016. Id. at ¶¶ 18, 32, 62, 81, 88, 101. The request to the Office of the Secretary of Defense and Joint Staff ("OSD/JS")
Id. at ¶ 18. The requests submitted to the FOIA Coordinator at Ramstein Air Base, the Department of State ("State"), the Office of Information Policy ("OIP"), the Federal Bureau of Intelligence ("FBI"), and the Department of the Treasury ("Treasury") were "functionally equivalent..., with agency-specific modifications."
The amended complaint alleges that the Air Force and Treasury informed Plaintiffs that no responsive documents could be found. Id. at ¶¶ 37, 44, 49. The OSD/JS, State, the OIP, and the FBI acknowledged the FOIA requests but did not provide final responses. Id. at ¶¶ 22, 64, 83, 91; Answer at ¶ 16. On April 20, 2016, after the time to respond had elapsed and Plaintiffs had exhausted their administrative remedies, Plaintiffs filed a fifteen-count complaint. See Compl. at ¶¶ 26, 39, 55, 74, 84, 93, 102. Plaintiffs filed an amended complaint on May 23, 2016, also containing fifteen counts. The complaint alleged records denial by the Air Force and Treasury; constructive records denial by the OSD/JS, State, the OIP, and the FBI; denial of expedited processing by the OSD/JS, State, the FBI, and Treasury; constructive denial of expedited processing by the Air Force; failure to refer by DOD; denial of news media designation by State and Treasury; and denial of a public interest fee waiver by State.
At a hearing on June 6, 2016, the Defendants indicated their intention to provide a Glomar response covering certain aspects of Plaintiffs' FOIA requests and to process and produce any responsive documents not covered by the Glomar response. Tr. of Proceedings, pages 66, 97-98. On July 29, 2016, Defendants provided the following joint Glomar response:
Memo. ISO Mot. Dismiss at 6. OIP identified 140 pages of responsive records not covered by the Glomar response, produced 107 pages in part, and withheld 33 pages in full. Id. State identified 43 responsive documents not covered by the Glomar response, produced 41 documents in full or in part, and withheld 2 documents in full. Id. DOD identified 1,197 pages of responsive records not covered by the Glomar response and produced 1,072 pages of non-exempt materials. Id.
After issuing their Glomar response and making these productions, Defendants filed a motion for summary judgment, arguing that they had satisfied their FOIA obligations by issuing a partial Glomar response, conducting reasonable searches for responsive records not covered by the Glomar response, and producing the non-exempt documents identified by their searches. Plaintiffs opposed, challenging the scope and justification of the Glomar response and the adequacy of the Defendants' searches. They also filed a cross-motion for partial summary judgment, arguing that there is no genuine dispute of material fact as to the inadequacy of the searches conducted by the Air Force, Treasury, and State. These motions are now before me.
To prevail on a motion for summary judgment, a movant must show that "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Celotex Corp v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). FOIA requires federal agencies to "disclose information to the public upon reasonable request unless the records at issue fall within specifically delineated exemptions." Judicial Watch, Inc. v. FBI, 522 F.3d 364, 365-66 (D.C. Cir. 2008); see also 5 U.S.C. § 552(a)(3)(A) (records sought must be "reasonably describe[d]"). Thus, a FOIA defendant is entitled to summary judgment if it demonstrates that there is no genuine dispute as to whether "each document that falls within the class requested, either has been produced, is unidentifiable or is wholly exempt from the Act's inspection requirements." See Weisberg v. Dep't of Justice, 627 F.2d 365, 368 (D.C. Cir. 1980). The "vast majority" of FOIA cases are decided on motions for summary judgment. See Brayton v. Office of U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011).
To show that unproduced documents are exempt from FOIA, an agency may file "affidavits describing the material withheld and the manner in which it falls within the exemption claimed." King v. Dep't of Justice, 830 F.2d 210, 217 (D.C. Cir. 1987). Although courts review the applicability of FOIA exemptions de novo, they give "substantial weight to detailed agency explanations" of national security concerns related to the release of information. Id. "[I]f the fact of the existence or nonexistence of agency records falls within a FOIA exemption," a defendant may issue a Glomar response, declining to confirm or deny the existence of requested records. Wolf v. CIA, 473 F.3d 370, 374 (D.C. Cir. 2007); see also Phillippi v. CIA, 546 F.2d 1009, 1011 (D.C. Cir. 1976) (allowing CIA to refuse to confirm or deny the existence of records related to any interest it had in the activities of the Hughes Glomar Explorer when the agency determined doing so would implicate the National Security Act's protection of information pertaining to intelligence sources and methods). An agency issuing a Glomar response must explain in as much detail as possible why it cannot confirm or deny the existence of
To show that unproduced documents cannot be identified, a defendant must demonstrate "a good faith effort to [] search for the requested records, using methods which can be reasonably expected to produce the information requested." Oglesby v. Dep't of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990). In other words, the defendant must "demonstrate beyond material doubt that its search was reasonably calculated to uncover all relevant documents." Nation Magazine v. Customs Serv., 71 F.3d 885, 890 (D.C. Cir. 1995). However, the touchstone of the analysis is the reasonableness of the search, not the records produced. See Hodge v. FBI, 703 F.3d 575, 580 (D.C. Cir. 2013) ("[T]he adequacy of a search is determined not by the fruits of the search, but by the appropriateness of [its] methods."); Mobley v. CIA, 806 F.3d 568, 583 (D.C. Cir. 2015) ("[A] search, under FOIA, is not unreasonable simply because it fails to produce all relevant material.").
An agency has discretion to craft its search to meet this standard, and does not have to search every system if additional searches are unlikely to produce any marginal return. See Campbell v. Dep't of Justice, 164 F.3d 20, 28 (D.C. Cir. 1998). Searching for records requires "both systemic and case-specific exercises of discretion and administrative judgment and expertise," and is "hardly an area in which the courts should attempt to micro-manage the executive branch." Schrecker v. Dep't of Justice, 349 F.3d 657, 662 (D.C. Cir. 2003). To demonstrate the reasonableness of its search, an agency can submit a "reasonably detailed affidavit, setting forth the search terms and the type of search performed, and averring that all files likely to contain responsive materials (if such records exist) were searched." Oglesby, 920 F.2d at 68. Agency declarations are given "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, 1201 (D.C. Cir. 1991).
As stated above, Defendants' Glomar response asserts, "Defendants cannot confirm or deny the existence of any records that would tend to confirm one way or the other any U.S. government role in an alleged `29 August 2012 drone strike.'" Memo. ISO Mot. Dismiss at 6. In support of this assertion, Defendants cite FOIA Exemptions 1 and 3. Exemption 1 states that FOIA disclosure obligations do not apply to matters that are: (1) "specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy;" and (2) "in fact properly classified pursuant to such Executive order." 5 U.S.C. § 552(b)(1). Exemption 3 states that FOIA disclosure obligations do not apply to matters that are "specifically exempted from disclosure by [another] statute" if that statute "requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue" or "establishes particular criteria for withholding or refers to particular types of matters to be withheld." 5 U.S.C. § 552(b)(3).
Defendants correctly invoke Exemption 1, for information properly classified pursuant to executive order in the interest of national defense or foreign policy. Sections 1.1 and 1.4 of Executive Order 13526 authorize original classification authorities to classify information that "could reasonably be expected to cause identifiable or describable damage to the national security" and that "pertains to" one or more items on an enumerated list. 75 Fed. Reg. 707, 707, 709 (Dec. 29, 2009). Two of the items on the list are "intelligence activities (including covert action), intelligence sources or methods, or cryptology" and "foreign relations or foreign activities of the United States, including confidential sources." Id. at 709.
The existence or non-existence of records covered by the Glomar response has been classified. Hardy Decl. at ¶ 4; Lewis Decl. at ¶ 4; Mason Decl. at ¶ 6; Stein Decl. at ¶ 7. Original classification authorities at DOD, State, and Treasury have determined that the disclosure of information that would tend to confirm one way or the other any role that the United States may have played in the alleged drone strike would risk revealing the existence or nonexistence of intelligence relationships with foreign liaisons and would risk revealing information about the United States's foreign relations and foreign activities. Hardy Decl. at ¶¶ 41, 44; Lewis Decl. at ¶¶ 24, 27; Mason Decl. at ¶¶ 24, 27; Stein Decl. at ¶¶ 27, 30. They have also determined that disclosure of this information "could reasonably be expected to cause identifiable or describable damage to the national security" by jeopardizing the continued usefulness of intelligence sources, prompting countries to rethink their acquiescence to American counter-terrorism missions within their borders, weakening or even ending American relationships with foreign partners who rely on their cooperation being kept in strict confidence, and triggering political consequences for foreign liaisons who might be suspected of involvement with drone strikes. Hardy Decl. at ¶¶ 42, 45; Lewis Decl. at ¶¶ 25, 28; Mason Decl. at ¶¶ 25, 28; Stein Decl. at ¶¶ 28, 31.
Even if this were not the case, the Defendants' Glomar response would be justified on the alternative ground that Defendants have properly invoked Exemption 3, for information that is statutorily exempt from disclosure. The National Security Act requires the Director of National Intelligence to "protect intelligence sources and methods from unauthorized disclosure." 50 U.S.C. § 3024(i)(1).
None of Plaintiffs' arguments to the contrary are persuasive. Plaintiffs argue that the Defendants' Glomar response is unjustified for four reasons. First, the response is unclear and overly broad. Pls.' Opp. to Defs.' Mot. Dismiss at 5-14. Second, if in fact the United States was not involved in the alleged drone strike, acknowledging that fact would have no impact on national security because it would not disclose any information about America's intelligence liaisons, foreign relations, or foreign activities. Pls.' Opp. to Defs.' Mot. Dismiss at 14-16; Pls.' Sur-Reply to Defs.' Mot. Dismiss at 11-12. Third, acknowledging that the United States was involved in the alleged drone strike would have no impact on national security because Yemen has already disclosed this involvement. Pls.' Opp. to Defs.' Mot. Dismiss at 16-17; Pls.' Sur-Reply to Defs.' Mot. Dismiss at 12-14. Fourth, the Defendants' affidavits stating that the information covered by the Glomar response is classified are untrue. Pls.' Opp. to Defs.' Mot. Dismiss at 17-19; Pls.' Sur-Reply to Defs.' Mot. Dismiss at 12 n.3.
Plaintiffs' overbreadth argument criticizes the Defendants for failing to show that any of the categories of requested information consists entirely of information covered by the Glomar response, arguing that this shows the Defendants have been "less than forthcoming and candid... about the actual scope of their Glomar responses." Pls.' Opp. to Defs.' Mot. Dismiss at 14.' However, the Defendants have never alleged that any category of requested information is entirely covered by the Glomar response. They have candidly acknowledged that the categories of information Plaintiffs requested are too broad and ambiguous to identify each request as entirely within or entirely beyond the scope of the Glomar response. Defs.' Reply ISO Mot. Dismiss at 3. This is why, in addition to invoking Glomar, Defendants have searched for and produced information not covered by the Glomar response. This is appropriate and does not show a failure to be forthcoming.
Plaintiffs' argument that the Glomar response is unjustified because the United States could safely acknowledge the truth if it were not involved in the alleged drone strike fares no better. In support of their view that a Glomar response is appropriate only when harm would result from confirming a fact and from denying it, Plaintiffs cite a district court opinion noting that an agency described both types of harm. See Int'l Counsel Bureau v. CIA, 774 F.Supp.2d 262, 269 (D.D.C. 2011). But the fact that an agency described harms that would follow both from confirming and from denying a fact does not prove that it was required to do so. Thus, Plaintiffs' proposed rule is not supported by the authority on which they rely. Moreover, Plaintiffs' proposed rule would require disclosure of FOIA-exempt material in at least some cases: In any case in which requested information exists, the existence of the information is classified, and no harm would be caused by stating that the information does not exist, Plaintiffs' rule would require the Government to disclose the classified fact that the information exists — even though FOIA does not require this. Plaintiff's proposed rule would be comparable to restricting a
Plaintiffs' argument that the United States can officially confirm its alleged involvement because Yemen has already disclosed this involvement is similarly misguided. It relies on a news article alleging that the Government of Yemen provided money to family members of Salem and Waleed bin Ali Jaber and asked them to sign receipts stating that the money was paid because of deaths that took place "during an American airstrike." Pls.' Opp. to Mot. Dismiss at 17. However, a news article's allegation that a foreign government claimed that the U.S. government was responsible for a drone strike falls well short of creating a genuine dispute of material fact as to whether an official and public acknowledgment by the United States that it was involved in the drone strike could harm national security. See Afshar, 702 F.2d at 1130-31 (explaining that official acknowledgment of a fact is distinct from widespread speculation as to that fact and has different effects on foreign relations).
Finally, Plaintiffs' argument that the information covered by the Glomar response is not actually classified fails to create a genuine issue of material fact. Plaintiffs' argument that the Defendants affidavits about classification are untrue has several facets. First, Plaintiffs note that the affidavits do not state the classification level of the classified information. Pls.' Opp. to Mot. Dismiss at 17-18. Second, Plaintiffs argue that it cannot be true that more than one original classification authority determined that the information covered by the Glomar response was classified. Id. at 18; Pls.' Sur-Reply to Defs.' Mot. Dismiss at 12 n.3. Third, Plaintiffs argue that Treasury's determination was not independent because of its representation that it originally saw no need to make a Glomar response but later decided that it had "no option other than asserting the Glomar response, consistent with the other defendant agencies." Pls.' Opp. to Mot. Dismiss at 18. Fourth, Plaintiffs argue that it was not appropriate for OIP to rely on the evaluations of original classification authorities at other agencies. Id. at 18-19; Pls.' Sur-Reply to Defs.' Mot. Dismiss at 12 n.3.
Accordingly, I find that the Defendants' Glomar response was appropriate. FOIA Exemptions 1 and 3 allow the Defendants to decline to confirm or deny the existence of any records that would tend to confirm one way or the other any role the United States played in the alleged drone strike. This information has been properly classified pursuant to Executive Order 13526 and is statutorily protected by 50 U.S.C. § 3024(i)(1).
As explained above, an agency can demonstrate the reasonableness of its search through a "reasonably detailed affidavit, setting forth the search terms and the type of search performed, and averring that all files likely to contain responsive materials (if such records exist) were searched." Oglesby, 920 F.2d at 68. Such statements enjoy "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, 1201 (D.C. Cir. 1991).
DOD has submitted an affidavit detailing how it searched for responsive records not subject to the Glomar response. It states that DOD identified five offices reasonably likely to possess responsive records. Lewis Decl. at ¶ 36. It explains that OSD Public Affairs conducted electronic searches of users' classified and unclassified email accounts, home drives, and shared drives for records containing the terms "drone strike," "Yemen," and either the name of one of the alleged victims or the name of Plaintiff Faisal bin Ali Jaber; OSD Legislative Affairs used the same names to search classified and unclassified systems for relevant emails, paper files, or electronic files; CENTCOM searched physical folders, email accounts, public and private electronic folders, SharePoint webpages and portals, and drives on computer systems of all classification levels using various combinations of search terms listed in the affidavit; the Air Force Office of the Judge Advocate searched paper files and classified and unclassified electronic records for nineteen variants of the name Ali Jaber; and the OSD Office of the General Counsel searched the entire electronic and paper case files of the attorney who represented DOD in related litigation. Id. at ¶ 37-41. The affidavit avers that DOD "has conducted searches of all offices reasonably likely to possess records responsive to certain portions of Plaintiffs' requests that do not implicate the Glomar response, and released the reasonably segregable portions thereof." Id. at ¶ 51. DOD produced 1,072 pages of documents and withheld 125 pages under Exemption 5, the deliberative process and attorney-client privileges, and the attorney work product doctrine. Id. at ¶¶ 37, 41.
DOJ submitted separate affidavits describing the searches conducted by the OIP and FBI. The OIP's affidavit states that OIP initiated searches within the Offices of the Attorney General and Deputy Attorney General, which identified seven officials who might have responsive email records; that the email accounts of these officials, together with the official records repository for both offices, were searched for records containing the variants of Faisal bin Ali Jaber's name; and that "these searches were reasonably calculated to uncover all potentially responsive records." Brinkmann Decl. at ¶ 13-22. The FBI's affidavit states that its Central Records System is the only record system where responsive records would likely be maintained and that it searched the CRS using a three-way phonetic breakdown of Faisal bin Ali Jaber's name, using all the name variants provided in his request letter. Hardy Decl. at ¶ 21-23. DOJ produced 107 pages of responsive records in part and withheld 33 pages in full pursuant to Exemption 5. Brinkmann Decl. at ¶ 23; Hardy Decl. at ¶ 49.
Treasury's affidavit states that Treasury identified "personnel within OIA covering relevant regional areas, and one attorney within the Office of General Counsel," as individuals reasonably likely to possess any relevant records. Mason Decl. at ¶ 33. It explains that these personnel searched classified and unclassified email accounts and electronic holdings for records that used a variant of the name "Jabir" and
Defendants' affidavits demonstrate that they conducted reasonable searches for information not implicated by their Glomar response. However, Plaintiffs make the belated argument in their Sur-Reply that Defendants should have conducted reasonable searches for all responsive records, including records implicated by the Glomar response. Pls.' Sur-Reply to Defs.' Mot. Dismiss at 2-9. Plaintiffs have not made any suggestions as to how a reasonable search for all responsive records would differ from the searches that were conducted, nor is it apparent to me that the Defendants' searches were inadequate even if Plaintiffs interpretation of the law were correct.
In any event, Plaintiffs have not cited any authority squarely supporting their view that an agency can only make a partial Glomar response after searching for all responsive records and proving that the records covered by the Glomar response fall within a FOIA exemption. See id. at 8 (stating that this case presents a novel fact-pattern not covered by the cases discussed). In fact, the United States Court of Appeals for the District of Columbia explained that it has never even implied that a search and segregability analysis is necessary before making a partial Glomar response. Elec. Privacy Info. Ctr. v. NSA, 678 F.3d 926, 934 (D.C. Cir. 2012).
For the reasons explained above, I conclude that the Defendants' Glomar response was appropriate and that the searches they conducted were adequate. Accordingly, the Defendants' motion for summary judgment will be granted and the Plaintiffs' partial motion for summary judgment will be denied. A separate order will issue.
