BERYL A. HOWELL, District Judge.
The plaintiff National Security Counselors ("NSC") brought these three related actions against six federal agencies pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, claiming that the defendant agencies have violated the FOIA in numerous ways.
Table of Contents
I. Background .................................................................118
A. 2009 FOIA Requests .....................................................119
1. Count Twenty in No. 11-444: September 25, 2009 FOIA Request
to the CIA ........................................................119
2. Count Eight in No. 11-445: October 22, 2009 FOIA Request to the
DOJ ...............................................................119
3. Counts One, Five and Six in No. 11-445: December 1, 2009 FOIA
Requests to the CIA, DIA, and ODNI ................................120
B. 2010 FOIA Requests .....................................................121
1. Counts Seven, Nine and Ten in No. 11-445: February 6, 2010
FOIA Requests to the CIA, State Department, and NSA ...............121
2. Counts Two and Three in No. 11-445: February 9, 2010 FOIA
Requests to the CIA ...............................................122
3. Count Seventeen in No. 11-444: May 4, 2010 FOIA Requests to
the CIA ...........................................................123
4. Count Three in No. 11-443: May 12, 2010 FOIA Request to the
CIA ...............................................................124
5. Count Nine in No. 11-444: May 13, 2010 FOIA Request to the CIA......125
6. Count Eight in No. 11-444: July 5, 2010 FOIA Request to the CIA.....125
7. Count One in No. 11-444: August 8, 2010 FOIA Requests to the
CIA ...............................................................126
C. 2011 FOIA Requests .....................................................127
1. Count Eighteen in No. 11-444: January 26, 2011 FOIA Request to
the CIA ...........................................................127
2. Count Thirteen in No. 11-445: February 11, 2011 FOIA Request to
the CIA ...........................................................127
3. Count Ten in No. 11-444: February 16, 2011 FOIA Request to the
CIA ...............................................................127
D. Facts Related to the Plaintiff's Motion for Sanctions ..................128
E. Procedural History .....................................................130
II. Legal Standards ............................................................131
A. FOIA ...................................................................133
B. Summary Judgment .......................................................133
C. Leave to File Amended Complaint ........................................133
III. Discussion .................................................................134
A. Motion for Leave to Amend ..............................................134
B. Motion for Sanctions ...................................................136
C. Policies or Practices ..................................................137
1. Assignment of Rights Policy ........................................137
2. Document-Level Exemption Policy ....................................149
D. Adequacy of Search Efforts .............................................151
1. Count Eighteen in No. 11-444: January 26, 2011 FOIA Request to
the CIA ...........................................................151
2. Count Twenty in No. 11-444: September 25, 2009 FOIA Request
to the CIA ........................................................153
3. Count Nine in No. 11-445: February 6, 2010 FOIA Request to the
State Department ..................................................154
4. Count Ten in No. 11-445: February 6, 2010 FOIA Request to the NSA ...............................................................155 E. Refusals to Process Requests ...........................................157 1. Count Nine in No. 11-444: May 13, 2010 FOIA Request to the CI.......157 2. Count Eight in No. 11-444: July 5, 2010 FOIA Request to the CIA.....158 3. Count One in No. 11-444: August 8, 2010 FOIA Requests to the CIA ...............................................................161 4. Count Ten in No. 11-444: February 16, 2011 FOIA Request to the CIA ...............................................................161 F. Exemption 1 ............................................................164 1. Exemption 1 Withholdings in No. 11-445 (CIA and DIA) ...............165 2. Exemption 1 Withholdings in No. 11-443 .............................168 G. Exemption 2 ............................................................172 H. Exemption 3 ............................................................173 1. CIA ................................................................174 2. DIA ................................................................185 3. ODNI ...............................................................186 I. Exemption 5 ............................................................187 1. Deliberative-Process Privilege .....................................189 2. Attorney-Client Privilege ..........................................192 3. Attorney Work-Product Doctrine .....................................200 J. Electronic Records .....................................................201 1. CIA.................................................................202 2. State Department ...................................................204 K. Segregability ..........................................................206 IV. Conclusion .................................................................208
The plaintiff has twenty-four claims remaining in these related actions. Since twenty-one of the plaintiff's remaining claims relate to specific FOIA requests, the Court will briefly summarize the timing and content of those requests, the agency's processing of and response to those requests, and the aspects of the agency's processing and responses that are challenged by the plaintiff.
The plaintiff's two other remaining claims relate to policies or practices of the CIA that the plaintiff alleges are in violation of the FOIA, which claims the Court summarized, along with other policy and practice claims, in its previous memorandum opinion in these related cases.
In a letter dated September 25, 2009, the plaintiff submitted a FOIA request to the CIA seeking "all [CIA] records, including cross-references, pertaining to guidelines for attorneys in the Office of General Counsel (`OGC') for the conduct of civil cases, especially pertaining to interactions between OGC attorneys and Department of Justice (`DOJ') attorneys." See Decl. of Martha M. Lutz (Dec. 13, 2011) ("First Lutz Decl.") Ex. T at 1, No. 11-444, ECF No. 20-4. By letter dated October 28, 2009, the CIA acknowledged this request and informed NSC that the CIA would "search for records existing through the date of this acceptance letter." First Lutz Decl. Ex. U at 1, No. 11-444, ECF No. 20-4. By letter dated January 10, 2011, the CIA provided a final response to the plaintiff's September 25, 2009 FOIA request, informing the plaintiff that "[w]e did not locate any records responsive to your request." First Lutz Decl. Ex. V. at 1, No. 11-44, ECF No. 20-4. The plaintiff administratively appealed the adequacy of the CIA's search efforts with respect to this request by letter dated January 21, 2011. See First Lutz Decl. ¶ 57. By letter dated March 15, 2011, the CIA's Agency Release Panel ("ARP") denied the plaintiff's appeal, concluding that the CIA's search efforts were adequate. See id. ¶ 59. In Count Twenty of No. 11-44, the plaintiff challenges the adequacy of the CIA's search efforts in response to the plaintiff's September 25, 2009 request, including the CIA's use of an allegedly improper search cut-off date. See First Am. Compl. ("444 FAC") ¶¶ 104-110, No. 11-444, ECF No. 6; Mem. in Supp. Def.'s Mot. for Summ. J. on Counts 1, 8, 9, 10, 17, 18, & 20 ("Def.'s First 444 Mem.") at 10-11, No. 11-444, ECF No. 20.
On October 22, 2009, the plaintiff submitted a FOIA request to the Department of Justice ("DOJ") Office of Legal Counsel ("OLC"), seeking "copies of all [DOJ] [OLC] opinions concerning the FOIA or the Privacy Act." Decl. of Paul P. Colborn (Oct. 2, 2012) ("Colborn Decl.") Ex. A, No. 11-445, ECF No. 29-11. By e-mail dated October 25, 2009, the plaintiff expanded the scope of this request to include opinions concerning the Federal Records Act, the Presidential Records Act, or agency records retention policies. See Colborn Decl. Ex. B, No. 11-445, ECF No. 29-11. On March 27, 2012, the OLC provided a final response to the plaintiff's FOIA request, producing twenty records in full and withholding all remaining responsive records under FOIA Exemption 5 because "[t]hey are protected by the deliberative process and attorney-client privileges." Colborn Decl. Ex. C, No. 11-445, ECF No. 29-11. On July 6, 2012, the OLC sent another letter to the plaintiff, advising it
On December 1, 2009, the plaintiff submitted a FOIA request to the CIA for "all [CIA] records referencing FOIA and Privacy Act requests submitted by [ten listed parties] that contain remarks, comments, notes, explanations, etc. made by CIA personnel or contractors about the processing of these requests (and appeals, if appropriate), the invocations of exemptions, or related matters." See Decl. of Martha M. Lutz (Sept. 26, 2012) ("Third Lutz Decl.") Ex. A at 1, No. 11-445, ECF No. 52-1; id. Ex. B at 1, No. 11-445, ECF No. 52-1. On December 8, 2009, the plaintiff limited the scope of this request by notifying the CIA that it could "limit [its] search for requests submitted by Michael Ravnitzky to only requests submitted in 2006 and 2009" and that it could "limit [its] search to the last four years in which requests were received from [each] requester." See Third Lutz Decl. Ex. A. On September 22, 2010, the CIA produced seventy records to the plaintiff in part with redactions made pursuant to FOIA Exemptions 3 and/or 6, and the CIA also notified the plaintiff that the CIA was withholding seventy-four other responsive records in their entirety pursuant to FOIA Exemptions 1, 3, and/or 5. See Third Lutz Decl. Ex. B at 1. In Count One of No. 11-445, the plaintiff challenges all of the CIA's withholding determinations made under FOIA Exemptions 1, 3, and/or 5. See 445 FAC ¶¶ 10-17; Mem. in Supp. Defs.' Mot. Summ. J. on Counts 1, 2, 3, 5, 6, 7, 8, 9, 10, and 13 ("Defs.' First 445 Mem.") at 2, No. 11-445, ECF No. 29; Pl.'s Opp'n to Defs.' Mot. Summ. J. on Counts 1, 2, 3, 5, 6, 7, 8, 9, 10, and 13 ("Pl.'s First 445 Opp'n") at 23 n. 19, No. 11-445, ECF No. 33.
Also on December 1, 2009, the plaintiff submitted FOIA requests to the Defense Intelligence Agency ("DIA") and the Office of the Director of National Intelligence ("ODNI") for substantially the same category of records sought in the December 1, 2009 FOIA request to the CIA. The only difference was that, instead of records containing processing notes from "CIA personnel or contractors," the request to the DIA sought processing notes from "DIA personnel or contractors" and the request to the ODNI sought processing notes from "NSA personnel or contractors." See Decl. of John F. Hackett (Oct. 1, 2012) ("Hackett Decl.") Ex. A at 1, No. 11-445, ECF No. 29-8; Decl. of Alesia Y. Williams (Oct. 1, 2012) ("First Williams Decl.") Ex. A at 1, No. 11-445, ECF No. 53-1. The plaintiff also narrowed its processing notes requests to the DIA and the ODNI on December 8, 2009 in the same manner it limited its processing notes request to the CIA. See Hackett Decl. Ex. B, No. 11-445, ECF No. 29-8; First Williams Decl. Ex. B, No. 11-445, ECF No. 53-1.
The ODNI produced responsive records to the plaintiff on May 27, 2010 and June 21, 2010, releasing a total of thirty-four pages, in part, with redactions made pursuant to FOIA Exemptions 2, 3, 5, and 6. See Hackett Decl. ¶¶ 11-12, No. 11-445, ECF No. 29-8. The DIA produced additional responsive records to the plaintiff in six separate releases from July 25, 2012 to
On February 6, 2010, the plaintiff submitted three substantially identical FOIA requests — one to the CIA, one to the State Department, and one to the National Security Agency ("NSA"). The request to the CIA sought "all current training handbooks, manuals, guidelines, checklists, worksheets, and similar documents provided to [CIA] FOIA and Privacy Act analysts (both agency employees and contractors)." See Third Lutz Decl. Ex. G at 1, No. 11-445, ECF No. 52-1. The plaintiff's requests to the State Department and the NSA were identical, except that they sought training materials provided to State Department and NSA FOIA and Privacy Act analysts, respectively. See Decl. of Sheryl L. Walter (Oct. 1, 2012) ("First Walter Decl.") Ex. 1, No. 11-445, ECF No. 29-10; Decl. of Pamela N. Phillips (Sept. 28, 2012) ("Phillips Decl.") Att. 1, No. 11-445, ECF No. 29-13. All three requests also limited the scope of the request to "documents in current use as of 6 February 2010." See Third Lutz Decl. Ex. G at 1; Walter Decl. Ex. 1, at 1; Phillips Decl. Ex. 1, at 1.
The first agency to issue a response to the plaintiff's requests was the CIA. On May 26, 2010, the CIA issued a final response to the plaintiff, in which it released two documents in full and withheld twenty-nine other responsive documents in full pursuant to FOIA Exemptions 1, 2, 3, and/or 5. See Third Lutz Decl. ¶ 11, No. 11-445, ECF No. 29-1. In Count Seven of No. 11-445, the plaintiff challenges all of the CIA's withholding determinations under FOIA Exemptions 1, 2, 3, and/or 5. See 445 FAC ¶¶ 55-61; Defs.' First 445 Mem. at 7.
The next agency to respond to the plaintiff's February 6, 2010 FOIA requests was the NSA. On April 22, 2011, the NSA issued a final response to the plaintiff, in which it released, in part, over 500 pages of responsive records, with redactions made pursuant to FOIA Exemptions 1, 3, 5, 6, and/or 7; the NSA also withheld one document in its entirety pursuant to FOIA Exemption 5. See Phillips Decl. ¶ 7; Phillips Decl. Att. 3, No. 11-445, ECF No. 29-13. In Count Ten of No. 11-445, the plaintiff challenges the adequacy of the NSA's search efforts in responding to the February 6, 2010 FOIA request, and in particular the plaintiff challenges the NSA's failure to locate templates that are responsive to the request. See 445 FAC ¶¶ 73-77; Defs.' First 445 Mem. at 10.
The State Department was the final agency to respond to the plaintiff's February
These four productions, totaling the release, in whole or in part, of 120 records, however, were not the final correspondence from the State Department in response to the plaintiff's FOIA request. On March 1, 2013, the State Department's Bureau of Diplomatic Security responded to the plaintiff's February 6, 2010 FOIA request, releasing twenty-six responsive records which had not been previously released. See Notice of Recent Development Regarding Count 9, at 1, No. 11-445, ECF No. 49. According to the State Department, this was "an inadvertent release of records," which occurred because "at some point in the processing of Plaintiff's FOIA request, it was mistakenly sent to [the Bureau of Diplomatic Security]." See Third Decl. of Sheryl L. Walter (June 18, 2013) ("Third Walter Decl.") ¶ 3, No. 11-445, ECF No. 51-1. In Count Nine of No. 11-445, the plaintiff challenges three aspects of the State Department's response to its February 6, 2010 FOIA request: (1) the withholding of certain information from one responsive record pursuant to FOIA Exemption 3; (2) the adequacy of the State Department's search efforts; and (3) the failure of the State Department to release responsive records in an electronic format. See 445 FAC ¶¶ 68-72; Defs.' First 445 Mem. at 9.
On February 4, 2010, the CIA informed the plaintiff that, with respect to his December 1, 2009 FOIA request for FOIA processing notes related to previous FOIA requests, the CIA could not retrieve FOIA requests by an organization's name, but only by a person's name. See Third Lutz Decl. Ex. C at 1, No. 11-445, ECF No. 52-1. In response, the plaintiff submitted a letter to the CIA on February 9, 2010, asking the CIA to search for records related to specific previous FOIA requests submitted by individuals associated with four organizations, including NSC and the James Madison Project ("JMP"). Id. With respect to JMP, the plaintiff requested that the CIA search for records of processing notes related to twenty-seven specific FOIA requests submitted by Mark Zaid, Bradley Moss, and Kelly McClanahan. Id. Likewise, with respect to NSC, the plaintiff requested that the CIA search for records of processing notes related to seven specific FOIA requests submitted by Kelly McClanahan. See Third Lutz Decl. Ex. C at 1. The CIA considered these two new FOIA requests and assigned each of them a separate request identifier number. See Third Lutz Decl. ¶¶ 9-10.
On July 30, 2010, the CIA provided a final response to the plaintiff's request regarding previous FOIA requests submitted
By letter dated May 4, 2010, the plaintiff submitted a FOIA request to the CIA for two categories of records: (1) "The 15 FOIA requests received by the [CIA] during Fiscal Year 2008 that were classified as `full denials' because the `Records were not Reasonably Described' in ... [the CIA's] 2008 Annual Report," and (2) "The 18 FOIA requests received by the CIA during Fiscal Year 2006 that were classified as `full denials' on the grounds of `records not reasonably described' in ... [the CIA's] 2006 Annual Report." See First Lutz Decl. Ex. Y at 1, No. 11-444, ECF No. 20-4. Also on May 4, 2010, the plaintiff submitted a second FOIA request to the CIA, which sought three other categories of similar records: (1) "The 510 FOIA requests received by the [CIA] during Fiscal Year 2009 that were classified as `full denials' because they were considered `Improper FOIA Requests for Other Reasons' in... [the CIA's] 2009 Annual Report," (2) "The 290 FOIA requests received by the CIA during Fiscal Year 2008 that were classified as `full denials' because they were considered `Improper FOIA Requests for Other Reasons' in ... [the CIA's] 2008 Annual Report," and (3) "The 79 FOIA requests received by the CIA during Fiscal Year 2006 that were classified as `full denials' because they were considered `not proper FOIA requests for some other reason' in ... [the CIA's] 2006 Annual Report." First Lutz Decl. Ex. Z at 1, No. 11-444, ECF No. 20-4. For both of these requests, the plaintiff specified that "[o]nly the initial request letters and the return CIA correspondence stating that the requests do not reasonably describe the records sought should be considered responsive to this request." First Lutz Decl. Exs. Y; see id. Ex. Z.
On August 7, 2010, the plaintiff's counsel sent a facsimile to the CIA stating "it would probably be easier to just consolidate the two requests [submitted on May 4, 2010]" and "I would not object if you chose to combine them and treat them as a single request." First Lutz Decl. Ex. AA, No. 11-444, ECF No. 20-4. Hence, on November 17, 2010, the CIA informed the plaintiff that the CIA was combining the two FOIA requests sent on May 4, 2010 into a single request. See First Lutz Decl. Ex. BB, No. 11-444, ECF No. 20-4. On August 31, 2011, the CIA provided a final
On May 12, 2010, the plaintiff submitted a FOIA request to the CIA, which sought "all Tables of Contents (`TOCs') from the [CIA] in-house journal Studies in Intelligence." See Decl. of Martha M. Lutz (Aug. 8, 2012) ("Second Lutz Decl.") Ex. A at 1, No. 11-443, ECF No. 27-1. Via telephone on June 4, 2010, the plaintiff clarified that it was requesting "all classified `TOCs,' and any unclassified `TOCs,' that were not available on the CIA website." Second Lutz Decl. Ex. B at 1, No. 11-443, ECF No. 27-1. On December 5, 2011, the CIA provided a final response to the plaintiff's May 12, 2010 FOIA request, releasing 43 responsive documents in full and 131 responsive documents in part, with redactions made pursuant to FOIA Exemptions 1 and/or 3. See Second Lutz Decl. Ex. C at 1, No. 11-443, ECF No. 27-1. By e-mail on December 30, 2011, the plaintiff notified the CIA's counsel that it believed there were several records missing from the CIA's production. See Second Lutz Decl. ¶ 9, No. 11-443, ECF No. 27-1. In response, the CIA conducted a supplemental search and, by letters dated February 7, 2012 and February 14, 2012, the CIA released to the plaintiff twenty-nine additional responsive TOCs, in part, with redactions made pursuant to FOIA Exemptions 1 and 3. See Second Lutz Decl. ¶ 9; Second Lutz Decl. Exs. D-E, No. 11-443, ECF No. 27-1. In its February 7, 2012 communication, the CIA also released to the plaintiff certain information that had been redacted from previously released documents. See Second Lutz Decl. Ex. D at 2. In Count Three of No. 11-443, the plaintiff challenges the CIA's withholding of information responsive to the May 12, 2010 FOIA request under FOIA Exemptions 1 and 3. See Compl. ("443 Compl.") ¶¶ 29-33, No. 11-443, ECF No. 1; Mem. in Supp. Def.'s Mot. Summ. J. on Count Three ("Def.'s First 443 Mem.") at 1, ECF No. 27.
By letter dated May 13, 2010, the plaintiff submitted a FOIA request to the CIA, which sought "a representative sample of [CIA] analytical reports and memoranda presenting psychological analyses or profiles of foreign government officials, terrorist leaders, international criminals, business figures, and other intelligence targets prepared by the Medical and Psychological Analysis Center (`MPAC') or its predecessor Office of Leadership Analysis (`OLA')." First Lutz Decl. Ex. M, No. 11-444, ECF No. 20-3. In this letter, NSC provided "guidelines" to the CIA regarding "what we consider a `representative sample,'" which included (1) "[o]nly final official reports or memoranda that discuss an MPAC/OLA analyst's conclusions about a target's psychology," (2) "[n]o more than twenty reports/memoranda for each year," (3) "[f]our reports/memoranda for each year (unless less were created that year) for individuals in each category of intelligence target," and (4) "[r]easonable variety in the intelligence targets wherever possible (e.g., foreign government officials should be from a variety of foreign governments, terrorist leaders should be from different terrorist organizations, etc.)." Id. at 1-2. As to the fourth guideline, NSC further stated that "[f]or the foreign government officials, we would also appreciate if possible a variety of the type of officials (e.g., some heads of state, some intelligence officials, some law enforcement officials, some financial officials, etc.)." Id. at 2. The plaintiff's letter also stated "[y]ou may limit your search to records created since 2000, but we do not have any particular intelligence targets in mind, since the purpose of this information is to analyze the style and methodology of the CIA's leadership analysts." Id. at 1.
The CIA provided a final response to the plaintiff's request on June 23, 2010, stating "[w]e cannot accept your FOIA request in its current form, because it would require the Agency to perform an unreasonably burdensome search." First Lutz Decl. Ex. N at 1, No. 11-444, ECF No. 20-3. Citing "the breadth and lack of specificity of [NSC's] request," the CIA informed the plaintiff that "[t]he FOIA does not provide a mechanism to perform research." Id. The CIA also "encourage[d] [NSC] to refine the scope of [its] request (such as including a narrower time frame for, and more specific descriptions of, the information you seek) to enable [the CIA] to conduct a reasonable search for responsive information." Id. In Count Nine of No. 11-444, the plaintiff contends that the CIA improperly refused to process this May 13, 2010 FOIA request. See 444 FAC ¶¶ 46-50; Pl.'s First 444 Opp'n at 16-18.
On July 5, 2010, the plaintiff submitted a FOIA request to the CIA for "a record that would indicate the ten individuals responsible for the most FOIA requests submitted (each) in Fiscal Years 2008, 2009, and 2010." See First Lutz Decl. Ex. K at 1, No. 11-444, ECF No. 20-2. "In other words," the plaintiff continued, "we seek a list, index, printout, or similar document from which we could determine which individual submitted the most FOIA requests each year, which individual submitted the second most FOIA requests each year, and so forth down to the tenth most prolific requester." Id. In addition to (1) an index of the ten most prolific FOIA requesters,
On February 29, 2012, however, "the CIA advised plaintiff that it reconsidered [the July 5, 2010 FOIA request]," and "advised that it could process plaintiff's fourth option, i.e., all FOIA requests submitted to the Agency for each of the three requested years, in paper form." Decl. of Martha M. Lutz (Mar. 18, 2013) ("Seventh Lutz Decl.") ¶ 7, No. 11-444, ECF No. 43-1. The CIA also "determined that NSC constituted an `all other' requester for fee category purposes and stated that ... plaintiff would be required to pay the duplication costs associated with processing the request, which were estimated to exceed $950." Id. In connection with these duplication costs, "[t]he Agency advised plaintiff that a commitment to pay fees and an advance payment of $250 were required `prior to the processing of [its] request.'" Id. (emphasis in original). Finally, the CIA's letter stated that "if the Agency did not received the fee commitment and advance payment within 45 days it would administratively close the request." Id. NSC never provided a fee commitment or an advance payment, and therefore the CIA closed the request. Id. In Count Eight of No. 11-444, the plaintiff challenges the CIA's refusal "to produce the record requested as `option 2' in NSC's request," i.e., "an index including all requesters for each year." See Pl.'s Opp'n to Def.'s Mot. Summ. J. on Counts Eight & Twenty-One ("Pl.'s Second 444 Opp'n") at 3-4, No. 11-444, ECF No. 46; see also 444 FAC ¶¶ 41-45.
By letters dated August 8, 2010, the plaintiff submitted four FOIA requests to the CIA, seeking "a database listing of all the FOIA requesters from FY 2008-present that [the CIA has] classified as" either "educational or scientific," "commercial," "all other," or "news media." See First Lutz Decl. Exs. A-D, No. 11-444, ECF No. 20-2. Each request sought a database listing as to each of the four fee requester categories. See id. By letters dated September 30, 2010, the CIA refused to process these requests, stating that "[t]he FOIA does not require federal agencies to create a record, collect information, conduct research, or analyze data." See First Lutz Decl. Exs. E-H, No. 11-444, ECF No. 20-2. By facsimile dated October 2, 2010, the plaintiff administratively appealed the CIA's refusal to process these four FOIA requests, contending "the CIA has already tacitly admitted that it possesses the ability to sort its FOIA database by requester category, as evidenced by the publication in its FOIA Electronic Reading Room of the FY 2003 `commercial' requesters." See First Lutz Decl. Ex. I at 1, No. 11-444, ECF No. 20-2. The CIA responded on October 21, 2010, stating for each of the four FOIA requests that, "since we did not provide you with appeal rights, we cannot accept your appeal." First Lutz Decl. Ex. J, No. 11-444, ECF No. 20-2. In Count One of No. 11-444, the plaintiff challenges the CIA's refusal to process its August 8, 2010 FOIA requests. See 444
By letter dated January 26, 2011, the plaintiff submitted a FOIA request to the CIA seeking "a copy of all [CIA] records pertaining to the search tools and indices available to the Office of Information Management Services (`IMS') for conducting searches of its own records in response to FOIA requests." See First Lutz Decl. Ex. Q at 1, No. 11-444, ECF No. 20-3. The plaintiff clarified later in this request that it was seeking "records that describe or discuss the search tools and indices that the IMS (as a CIA component) can choose between when devising a search strategy for IMS records." Id. The plaintiff further specified that the request was "limited to only those search tools and indices that would be personally used by IMS personnel to search IMS records systems." Id. Finally, the plaintiff specified two categories of records that would be responsive to the request: (1) "Records which describe the search tools and indices," and (2) "The actual contents of the indices." Id. On May 26, 2011, the CIA provided a final response to the plaintiff's request. See First Lutz Decl. Ex. S, No. 11-444, ECF No. 20-3. The CIA located three documents responsive to the plaintiff's request, one of which it released in full, and two of which it released in part, with redactions made pursuant to FOIA Exemption 3. See id. In Count Eighteen of No. 11-444, the plaintiff challenges three aspects of the CIA's response to the plaintiff's January 26, 2011 FOIA request: (1) the decision to withhold information under FOIA Exemption 3; (2) the adequacy of the CIA's search efforts; and (3) the failure of the CIA to release responsive records in an electronic format, as requested. See 444 FAC ¶¶ 94-98; Pl.'s First 444 Opp'n at 24-26, 35-40.
On February 11, 2011, the plaintiff submitted a FOIA request to the CIA, which sought "all [CIA] records associated with the administrative processing of [two specific FOIA requests], which were referred to the CIA by the Federal Bureau of Investigation." See Third Lutz Decl. Ex. I at 1, No. 11-445, ECF No. 52-1. On October 7, 2011, the CIA provided a final response to this request, releasing two responsive records in part, with redactions made pursuant to FOIA Exemption 3, and withholding seven responsive records in full pursuant to FOIA Exemptions 3 and 5. See Third Lutz Decl. ¶ 12; Third Lutz Decl. Ex. J at 1, No. 11-445, ECF No. 52-1. In Count Thirteen of No. 11-445, the plaintiff challenges the CIA's decision to withhold responsive information pursuant to FOIA Exemptions 3 and 5. See 445 FAC ¶¶ 88-92; Defs.' First 445 Mem. at 10-11.
Finally, by letter dated February 16, 2011, the plaintiff submitted a FOIA request to the CIA, seeking "a copy of all [CIA] records pertaining to the IBM supercomputer `Watson.'" First Lutz Decl. Ex. O at 1, No. 11-444, ECF No. 20-3. On March 2, 2011, the CIA responded to the plaintiff that "[w]e cannot accept your FOIA request in its current form because it would require the Agency to perform an unreasonably burdensome search." See First Lutz Decl. Ex. P, No. 11-444, ECF No. 20-3. Citing "the breadth and lack of specificity of [the plaintiff's] request" and "the way in which [the CIA's] records systems are configured," the CIA concluded that "the Agency cannot conduct a reasonable
In December 2011, an unidentified third party provided the plaintiff's counsel with two CIA documents, which counsel concluded may contain classified information. See Pl.'s Mot. to Compel Production ("Pl.'s First Mot. to Compel") at 1, No. 11-443, ECF No. 26. Since the documents were ostensibly relevant to the plaintiff's claim in Count Three of No. 11-443, challenging the CIA's withholding of responsive information from tables of contents for the CIA's in-house journal Studies in Intelligence, see supra Part I.B.4, plaintiff's counsel contacted government counsel for the CIA, who referred plaintiff's counsel to the FBI. See Pl.'s First Mot. to Compel at 1. In January 2012, an FBI field agent met with plaintiff's counsel, at which time plaintiff's counsel signed a non-disclosure agreement as to any classified material contained in the two CIA documents and also turned over paper and electronic versions of the two records to the FBI. See id. at 2. In that meeting, plaintiff's counsel requested that the FBI return to him redacted versions of the two documents, with all classified information deleted. Id. In a later meeting held in June 2012, the FBI informed plaintiff's counsel that they would not be releasing redacted versions of the documents to him. See id. Since plaintiff's counsel wished to submit the non-classified portions of the two documents to the Court, the plaintiff filed a motion on August 3, 2012 to compel the CIA to "provid[e] [plaintiff's counsel] with redacted copies" of the two documents in question. See id. at 4. The CIA opposed the relief sought by the plaintiff, contending that "[plaintiff's counsel's] alleged interactions with the FBI are well outside the scope of this action" since "[t]he FBI is not a party to this case" and "the FBI's interactions were with [plaintiff's counsel] in his individual capacity." Def.'s Opp'n to Pl.'s Mot. to Compel at 1-2, No. 11-443, ECF No. 28.
On August 15, 2012, the Court granted the plaintiff's motion to compel over the CIA's objection and directed the CIA to provide the plaintiff "a copy of each of the two CIA documents referenced in the plaintiff's motion, if possible, with all classified information redacted therefrom." See Minute Order dated Aug. 15, 2012, No. 11-443. On September 3, 2012, the plaintiff filed a motion, asking the Court "to compel CIA to comply with [the Court's] earlier Order." See Pl.'s Mot. to Compel Compliance with Court's 15 Aug. 2012 Order ("Pl.'s Second Mot. to Compel") at 2, No. 11-443, ECF No. 31. In that motion, the plaintiff stated that "[i]nstead of redacting only the classified information," the CIA "redacted all information it considered exempt under [FOIA] Exemptions (b)(1) and/or (b)(3)." Id. at 1-2. Therefore, the plaintiff asked the Court to order the CIA to produce "copies of these records with only the classified information redacted, as the Court ordered." Id. at 2. On September 21, 2012, the Court granted the plaintiff's motion in part and ordered the CIA to produce redacted versions of the two documents to the plaintiff, clearly indicating on each document which portions of the document were classified — and therefore redacted pursuant to FOIA Exemption 1 — and which portions were redacted pursuant to FOIA Exemption 3.
The CIA produced redacted versions of the two documents as instructed, yet the parties continued to disagree about whether the CIA had complied with the Court's Order. See Joint Status Report at 1, No. 11-443, ECF No. 35. Specifically, the plaintiff complained, on September 3, 2012, that the CIA had marked certain information as being exempt under Exemption 3, which the CIA's Vaughn index had stated was classified, and vice-versa. See id. at 2-3. Plaintiff's counsel had notified the CIA's counsel of this inconsistency in an e-mail five days before the plaintiff brought the issue to the attention of the Court. See Pl.'s Reply to Opp. To Mot. To Compel Ex. D, No. 11-443, ECF No. 33-2 (Aug. 29, 2012 e-mail from plaintiff's counsel to CIA's counsel stating "I think you must have [the classified material and the CIA Act redactions] backwards"). The CIA, however, maintained that "[t]he documents the CIA produced in response to the Court's order reflect the current status of the information they contain." See Joint Status Report at 2. In light of the apparent discrepancy, the plaintiff once again asked for relief, seeking an order directing the CIA "to take whatever steps are necessary to make its redactions in these releases consistent with its previous presentations to the Court." Id. at 4.
To resolve this ongoing dispute, the Court held a status conference on October 12, 2012. At that status conference, plaintiff's counsel once again asserted that the CIA had gotten the two categories of redactions "backwards." See Tr. of Status Conference (Oct. 12, 2012) at 13:1-2, No. 11-443, ECF No. 69; see also id. at 16:9-12 ("[E]verything that is listed as classified in the documents is listed as unclassified [in the Vaughn index]. It looks like it was a simple administrative error."). The CIA's counsel, however, maintained once again that "we've clearly identified for [plaintiff's counsel] in our Vaughn index and in the two documents that we produced pursuant to the Court's order exactly what's classified and what's subject to the CIA Act." Id. at 19:15-19. The Court asked the CIA's counsel in this regard: "Do you need to update your Vaughn index?" to which he replied "I need to check with my client agency, but I don't believe so." Id. at 26:18-21. The Court further stated, "[a]s officers of the court, if [the CIA's lawyers] find out that some information that's been presented is incorrect, they have an ongoing and continuing obligation to correct themselves." Id. at 26:1-4. Following the October 12, 2012 status conference, and based on CIA counsel's representations that the redactions were correctly designated, the Court entered a minute order stating that "the plaintiff is entitled to rely on the designations of information in the two ... indices at issue, as provided by the defendant, regarding whether redacted information in those documents is either classified or subject to protection under the CIA Act." Minute Order dated Oct. 12, 2012, No. 11-443.
On October 22, 2012, the CIA submitted a notice to the Court, stating that "[i]n [the CIA's] earlier production, redactions were marked with either a `1' or `2,' which appears to have created some confusion as to whether the redacted information was withheld because it is classified, subject to the CIA Act, or both." See Notice at 1, No. 11-443, ECF No. 40. Thus, ostensibly "[i]n order to clarify the issue and provide Plaintiff's counsel with clear documents upon which he can rely ... [the CIA] now produced copies of the two records with each redaction marked clearly
As a result, the plaintiff filed a motion for sanctions against the CIA, contending that the CIA had "engaged in an extended campaign of misrepresentation to both [the plaintiff] and the Court regarding the nature of the information it redacted from the two documents at issue." See Pl.'s Mot. for Sanctions at 1, No. 11-443, ECF No. 50. The CIA opposed the motion and submitted, at the Court's direction, two sworn declarations explaining what had caused the CIA mistakenly for weeks to defend the accuracy of its designations. Specifically, the CIA's chief of its Litigation Support Unit, Martha Lutz, stated that the CIA's error "was the product of internal miscommunication rather than bad faith." See Decl. of Martha M. Lutz (Feb. 25, 2013) ("Sixth Lutz Decl.") ¶ 4, No. 11-443, ECF No. 61-1. Ms. Lutz explained that, when the CIA's information review officer ("IRO") reviewed the two documents in question, she used a notation system in which she wrote "(b)(3) methods" in the margins of the documents next to certain redacted information. See id. ¶ 7. These notations were intended to convey that the specified redactions were protected under the National Security Act as classified intelligence sources or methods — and thus also protected by FOIA Exemption 1 as classified information — but the CIA's counsel "interpreted this notation system to mean that redactions marked ... as `(b)(3) methods' were those protected by FOIA Exemption (b)(3)" under the CIA Act. See id. ¶¶ 7-8. "Based on this misunderstanding, the CIA attorney incorrectly cited some of the justifications for redacting the material to the DOJ attorney, who in turn shared that information with plaintiff." Id. ¶ 9.
The plaintiff filed the Complaints in each of these three actions on February 28, 2011, and, shortly thereafter, filed a First Amended Complaint in Nos. 11-444 and 11-445 on March 21, 2011. On May 20, May 27, and June 3, 2011, the CIA filed partial motions to dismiss in No. 11-443, 11-444, and 11-445, respectively. These three motions, filed pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), collectively moved for dismissal of twenty-five of the forty-five claims originally alleged by the plaintiff, and the motions became ripe on July 21, 2011. While these three motions to dismiss were pending, the Court ruled on ten other, nondispositive motions, including motions to stay, to compel, and to bifurcate.
On October 17, 2012, in a lengthy opinion, the Court granted in part and denied in part the CIA' three partial motions to dismiss. See NSC I, 898 F.Supp.2d 233. Specifically, the Court dismissed all but three of the plaintiff's twenty-four policy-or-practice claims — including all of the plaintiff's claims under the Mandamus Act and the Administrative Procedure Act. See id. at 290. In addition to denying the government's motion to dismiss with respect to three of the plaintiff's policy-or-practice claims (the Assignment of Rights Policy, the Cut-Off Date Policy, and Document-Level Exemption Policy), the Court
On March 21, 2013, this Court stayed all three actions until all dispositive motions were fully briefed. Between December 20, 2011 and May 17, 2013, a total of eight motions or cross-motions for summary judgment were filed across these three related actions by all parties. The last of these motions became ripe on June 11, 2013. Additionally, on November 21, 2012, the plaintiff filed a motion for leave to file a second amended complaint in No. 11-445, and on January 11, 2013, the plaintiff filed a motion for sanctions in No. 11-443. Thus, currently pending before the Court in these related actions are ten motions: eight motions or cross-motions for summary judgment, one motion for leave to file a second amended complaint, and one motion for sanctions. For the reasons discussed below, the Court grants in part and denies in part the defendants' six motions for summary judgment, grants the plaintiff's cross-motions for summary judgment, denies the plaintiff's motion for leave to file a second amended complaint, and denies the plaintiff's motion for sanctions.
Congress enacted the FOIA, 5 U.S.C. § 552, "`to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny.'" Am. Civil Liberties Union v. U.S. Dep't of Justice, 655 F.3d 1, 5 (D.C.Cir.2011) (quoting Dep't of the Air Force v. Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976)). The Supreme Court has explained that the FOIA is "a means for citizens to know `what their Government is up to.' This phrase should not be dismissed as a convenient formalism. It defines a structural necessity in a real democracy." Nat'l Archives & Records Admin. v. Favish, 541 U.S. 157, 171-172, 124 S.Ct. 1570, 158 L.Ed.2d 319 (2004) (citation and internal quotation marks omitted). "The basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed." NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242, 98 S.Ct. 2311, 57 L.Ed.2d 159 (1978). As a result, the FOIA requires federal agencies to release all records responsive to a request for production. See 5 U.S.C. § 552(a)(3)(A). Federal courts are authorized under the FOIA "to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant." Id. § 552(a)(4)(B).
This strong interest in transparency must be tempered, however, by the "legitimate governmental and private interests [that] could be harmed by release of certain types of information." United Techs. Corp. v. U.S. Dep't of Def., 601 F.3d 557, 559 (D.C.Cir.2010) (internal quotation marks omitted); see also Critical Mass Energy Project v. Nuclear Regulatory Comm'n, 975 F.2d 871, 872 (D.C.Cir.1992) (en banc). Accordingly, Congress included nine exemptions permitting agencies to withhold information from FOIA disclosure.
When an agency's response to a FOIA request is to withhold responsive records, either in whole or in part, the agency "bears the burden of proving the applicability of claimed exemptions." Am. Civil Liberties Union v. U.S. Dep't of Def. ("ACLU/DOD"), 628 F.3d 612, 619 (D.C.Cir.2011). "The government may satisfy its burden of establishing its right to withhold information from the public by submitting appropriate declarations and, where necessary, an index of the information withheld." Am. Immigration Lawyers Ass'n v. U.S. Dep't of Homeland Sec., 852 F.Supp.2d 66, 72 (D.D.C.2012) (citing Vaughn v. Rosen, 484 F.2d 820, 827-28 (D.C.Cir.1973)). "If an agency's affidavit describes the justifications for withholding the information with specific detail, demonstrates that the information withheld logically falls within the claimed exemption," and "is not contradicted by contrary evidence in the record or by evidence of the agency's bad faith, then summary judgment is warranted on the basis of the affidavit alone." ACLU/DOD, 628 F.3d at 619. "Ultimately, an agency's justification for invoking a FOIA exemption is sufficient if it appears `logical' or `plausible.'" Id. (internal quotation marks omitted) (quoting Larson v. Dep't of State, 565 F.3d 857, 862 (D.C.Cir.2009)).
When a requester challenges an agency's response based on the adequacy of the search performed, "[t]o prevail on summary judgment ... the defending `agency must show beyond material doubt... that it has conducted a search reasonably calculated to uncover all relevant documents.'" Morley v. CIA, 508 F.3d 1108, 1114 (D.C.Cir.2007) (quoting Weisberg v. U.S. Dep't of Justice, 705 F.2d 1344, 1351 (D.C.Cir.1983)). "In order to obtain summary judgment the agency must show that it made a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested." Oglesby v. U.S. Dep't of Army, 920 F.2d 57, 68 (D.C.Cir.1990). "Summary judgment may be based on affidavit, if the declaration sets forth sufficiently detailed information `for a court to determine if the search was adequate.'" Students Against Genocide v. Dep't of State, 257 F.3d 828, 838 (D.C.Cir.2001) (quoting Nation Magazine v. U.S. Customs Serv., 71 F.3d 885, 890 (D.C.Cir.1995)).
Finally, the D.C. Circuit has recognized that, separate from claims seeking relief for specific requests made under the FOIA, requesting parties may also assert a "claim that an agency policy or practice will impair the party's lawful access to information in the future." Payne Enters., Inc. v. United States, 837 F.2d 486, 491 (D.C.Cir.1988) (emphasis in original); accord Newport Aeronautical Sales v. Dep't of the Air Force, 684 F.3d 160, 164 (D.C.Cir.2012). The Court in Payne held that a policy-or-practice claim is viable
"`FOIA cases typically and appropriately are decided on motions for summary judgment.'" Georgacarakos v. FBI, 908 F.Supp.2d 176, 180 (D.D.C.2012) (quoting Defenders of Wildlife v. U.S. Border Patrol, 623 F.Supp.2d 83, 87 (D.D.C. 2009)). With respect to the applicability of exemptions and the adequacy of an agency's search efforts, summary judgment may be based solely on information provided in the agency's supporting declarations. See, e.g., ACLU/DOD, 628 F.3d at 619; Students Against Genocide, 257 F.3d at 838. With respect to policy-or-practice claims, the moving party must establish "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). Summary judgment is properly granted against a party who, "after adequate time for discovery and upon motion, ... fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The burden is on the moving party to demonstrate that there is an "absence of a genuine issue of material fact" in dispute. Id. at 323, 106 S.Ct. 2548.
In ruling on a motion for summary judgment, the Court must draw all justifiable inferences in favor of the nonmoving party and shall accept the nonmoving party's evidence as true. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The Court is only required to consider the materials explicitly cited by the parties, but may on its own accord consider "other materials in the record." FED.R.CIV.P. 56(c)(3). For a factual dispute to be "genuine," the nonmoving party must establish more than "[t]he mere existence of a scintilla of evidence in support of [its] position," Liberty Lobby, 477 U.S. at 252, 106 S.Ct. 2505, and cannot rely on "mere allegations" or conclusory statements, see Veitch v. England, 471 F.3d 124, 134 (D.C.Cir.2006); Greene v. Dalton, 164 F.3d 671, 675 (D.C.Cir. 1999); Harding v. Gray, 9 F.3d 150, 154 (D.C.Cir.1993); accord FED.R.CIV.P. 56(e). Rather, the nonmoving party must present specific facts that would enable a reasonable jury to find in its favor. See, e.g., FED.R.CIV.P. 56(c)(1). "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Liberty Lobby, 477 U.S. at 249-50, 106 S.Ct. 2505 (citations omitted).
Federal Rule of Civil Procedure 15 provides that, if more than twenty-one days have passed since the filing of an original complaint, "a party may amend its [complaint] only with the opposing party's written consent or the court's leave." FED. R.CIV.P. 15(a)(2). "The court should freely give leave when justice so requires." Id. The D.C. Circuit has held that "it is an abuse of discretion to deny leave to amend unless there is sufficient reason, such as `undue delay, bad faith or dilatory motive[,] repeated failure to cure deficiencies by [previous] amendments[,] or futility of amendment.'" Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C.Cir.1996) (internal quotation marks omitted). In this regard, "[c]ourts will properly deny a motion to amend when it appears that the plaintiff is using Rule 15 to make the complaint a moving target, to salvage a lost case by untimely suggestion of new theories of recovery, [or] to present theories seriatim in an effort to avoid dismissal." Minter v. Prime Equip. Co., 451 F.3d 1196, 1206
A wide variety of issues have been presented to the Court in the ten motions currently pending. The Court will begin by explaining why it denies the plaintiff's motion for leave to file a second amended complaint in No. 11-445. The Court will then discuss the plaintiff's Motion for Sanctions, filed in No. 11-443. Third, the Court will address the plaintiff's two remaining policy-or-practice claims, which challenge the CIA's Assignment of Rights Policy and Document-Level Exemption Policy. Fourth, the Court will discuss the plaintiff's claims relating to the adequacy of the CIA's, the State Department's, and the NSA's search efforts in response to specific FOIA requests. Fifth, the Court will discuss the plaintiff's claims regarding the CIA's refusal to process certain FOIA requests. Sixth, the Court will discuss the plaintiff's claims regarding the defendants' decisions to withhold certain information pursuant to FOIA Exemptions 1, 2, 3, 5, and 6. Seventh, the Court will discuss the plaintiff's claim that the State Department and the CIA should have provided it with electronic versions of responsive records. Finally, the Court will determine whether the defendants have satisfied their burden to produce all non-exempt, reasonably segregable material to the plaintiff.
In its motion for leave to file an amended complaint, the plaintiff seeks to make two modifications to its First Amended Complaint in No. 11-445 "to correct deficiencies identified by the Court in its 17 October 2012 Memorandum Opinion." See Pl.'s Mot. for Leave to File a Second Am. Compl. ("Pl.'s Amendment Mem.") at 3, No. 11-445, ECF No. 36. First, as to Count Fifteen — which challenged the CIA's alleged policy of refusing to provide estimated dates of completion for FOIA requests (the "Non-Provision of Completion Date Policy") — the Court dismissed that claim for lack of standing because the plaintiff had not alleged that it had been subject to the policy in question. See NSC I, 898 F.Supp.2d at 263. The plaintiff now seeks to amend its complaint by adding allegations that it has become subject to that alleged policy, by virtue of FOIA requests submitted after the Court issued its October 17, 2012 opinion. See Pl.'s Amendment Mem. at 3; see also Proposed Second Am. Compl. ¶ 106, No. 11-445, ECF No. 36-1 (alleging refusals to provide estimated dates of completion on October 18, October 24, and November 3, 2012).
The Court concludes that this proposed amended must be denied for undue delay. See, e.g., Firestone, 76 F.3d at 1208. As alleged in the plaintiff's First Amended Complaint, the plaintiff first became aware of the alleged Non-Provision of Completion Date Policy in November 2010 — approximately three months before filing the original complaint in No. 11-445, and approximately four months before filing the First Amended Complaint in No. 11-445. See 445 FAC ¶ 102. Further, the defendants specifically challenged the plaintiff's standing to bring this claim in its motion to dismiss, filed on June 3, 2011.
With respect to Count Eighteen in No. 11-445 — which challenges the CIA's alleged policy of refusing to identify responsive records withheld in their entirety at the administrative stage (the "Withheld Document Non-Identification Policy") — the Court dismissed that claim in its October 17, 2012 opinion for failure to state a claim. See NSC I, 898 F.Supp.2d at 285. In so ruling, the Court simply concluded that, during administrative processing, the FOIA "does not require agencies to provide a list of withheld documents, but only to make a reasonable effort to estimate the volume of the documents withheld.'" Id. (quoting Mobley v. Dep't of Justice, 845 F.Supp.2d 120, 124 (D.D.C.2012)). The plaintiff now asks to "rewrite[e] Count 18 to allege a policy, pattern, or practice of refusing to provide estimates of the volume of records withheld in full." See Pl.'s Amendment Mem. at 3-4. This is an entirely different claim than the one alleged in the First Amended Complaint, and once again, the plaintiff's belated attempt to reshape the nature of its claims constitutes an undue delay. The plaintiff clearly "is using Rule 15 to make the complaint a moving target, to salvage a lost case by untimely suggestion of new theories of recovery." See Minter, 451 F.3d at 1206. This is a naked "attempt to evade the effect of [the Court's] Memorandum Opinion and Order dismissing the plaintiff's claim[ ]," and therefore "the request will be denied." See Kurtz, 2011 WL 2457923, at *1 n. 1.
In sum, the plaintiff's motion to amend its complaint "to correct deficiencies identified by the Court in its 17 October 2012 Memorandum Opinion," see Pl.'s Amendment Mem. at 3, is not a proper use of Rule 15. The defects in Counts Fifteen and Eighteen in No. 11-445 were identified by the CIA in moving to dismiss those claims, yet the plaintiff did not seek an amendment upon being alerted to these defects. Instead, the plaintiff waited until after the Court granted the defendants' motion regarding these claims.
In its motion for sanctions in No. 11-443, the plaintiff contends that the CIA "engaged in an extended campaign of misrepresentation... regarding the nature of the information it redacted from the two documents at issue." See Pl.'s Mot. Sanctions ("Pl.'s Sanctions Mem.") at 1, No. 11-443, ECF No. 50. The plaintiff relies on three bases in moving for sanctions: (1) 28 U.S.C. § 1927(2) Federal Rule of Civil Procedure 11, and (3) the inherent power of the Court. See id. at 6-7. Regardless of the source of the sanctions, the plaintiff contends that "the evidence is clear that CIA's counsel intentionally, unreasonably, vexatiously, and in bad faith misrepresented the nature of the withheld information in the two Indices for two months, bringing the orderly progression of the case to a screeching halt." Id. at 8. In this regard, the plaintiff clarifies that it "is not maintaining that CIA's opposition to the initial Motion to Compel was sanctionable conduct, nor is [it] saying that the making of the mistake in the first place was sanctionable conduct." Id. Rather, according to the plaintiff, "[i]t was not until CIA refused to acknowledge the mistake, forced the extensive subsequent arguments, and repeatedly represented to the Court that its assessment was correct and the undersigned was wrong that the actions of its counsel became worthy of sanction." Id.
To impose sanctions under the Court's inherent power, "it is settled that a finding of bad faith is required." United States v. Wallace, 964 F.2d 1214, 1219 (D.C.Cir.1992). With respect to 28 U.S.C. § 1927, which permits a court to impose sanctions against an attorney "who so multiplies the proceedings in any case unreasonably and vexatiously," the D.C. Circuit "has not established whether the standard [for unreasonable and vexatious conduct]
Based on the CIA's submissions, the Court is satisfied that sanctions are not warranted in this case. In particular, the CIA's explanation of the circumstances that led to the inaccurate representations by CIA's counsel establishes that no sanctionable conduct occurred. Of particular importance is the revelation in the CIA's declaration that the CIA's information review officer ("IRO") used a confusing and easily misunderstood notation system when classifying the redactions made to the two documents in question. See Sixth Lutz Decl. ¶¶ 6-8. It was objectively reasonable for the CIA's counsel to rely on the IRO's statements, though unfortunately that reliance turned out to be misplaced. Although the plaintiff is correct to assert that the CIA's inaccurate representations "br[ought] the orderly progression of the case to a screeching halt," Pl.'s Sanctions Mem. at 8, the conduct on the part of the CIA's counsel was not sanctionable because it appears to have been premised on a reasonable, good-faith belief that the representations were correct at the time. The CIA is admonished to engage in clearer internal communication before making representations to the Court about the agency's positions in the future, but in this particular instance the Court denies the plaintiff's Motion for Sanctions.
The Court next turns to the plaintiff's remaining policy-or-practice claims. Although both of these claims were summarized in the Court's previous opinion, see NSC I, 898 F.Supp.2d at 243-44, 248-49, the Court will briefly summarize those claims here to aid the clarity of the Court's analysis.
In Count Two of No. 11-443, the plaintiff complains that the CIA has a policy of refusing to recognize the assignment of rights related to FOIA requests (the "Assignment of Rights Policy"). See 443 Compl. ¶¶ 18-28. This policy-or-practice claim is closely connected to Count One of No. 11-443, in which the plaintiff alleges that the CIA refused to permit NSC to participate in the administrative appeal proceedings related to a FOIA request that had been assigned to NSC by an organization called the James Madison Project ("JMP").
The question presented by the Assignment of Rights Policy is as follows: Is it a violation of the FOIA for an agency to refuse to recognize a valid assignment of the rights attached to a FOIA request? The CIA says that a policy of not recognizing assignments does not violate the FOIA, relying on the conclusory assertion that "[a]gencies are not required by the FOIA to recognize the assignment of FOIA requests." Def.'s Second 443 Mem. at 5. The CIA elaborates its interpretation of the statute by pointing to several provisions of the FOIA "that require agencies to make determinations based on the identity of the FOIA requester," such as the fee-waiver provision, see 5 U.S.C. § 552(a)(4)(A)(ii), the expedited processing provision, see id. § 552(a)(6)(E)(i)(I), and Exemptions 6 and 7(C), see id. § 552(b)(6), 552(b)(7)(C). See Def.'s Second 443 Mem. at 5-6. The CIA contends that such "requester-specific provisions ... would be frustrated if agencies were required to recognize the assignment of FOIA requests." Id. at 6-7. Finally, the CIA contends — as a policy matter — that requiring it to recognize assignments of FOIA requests would impose an "undue burden," and would not result in any added benefit to requesters. See id. at 8-12. In particular, the CIA contends that refusing to recognize assignments "does not prejudice parties ... that claim to have been assigned FOIA claims" because "`[r]equests for previously requested records are processed on an accelerated basis'" and therefore "[b]y filing new requests, professional requesters can receive the records they seek at the same time they would if they were assigned the original requests." Id. at 11-12.
The plaintiff responds by focusing on the factual underpinnings of the CIA's policy arguments — in particular the CIA's contentions about "undue burden." See Pl.'s 443 Cross-Mot. Mem. at 2-7. For example, the plaintiff points out that the CIA waives FOIA fees "`as an act of administrative discretion' ... in the overwhelming majority of requests," which the plaintiff says "further exemplifies the lack of any fee-related burden that assignments could possibly impose." Id. at 3-4. The plaintiff also quibbles that the CIA has "consistently classified JMP as an `all other' requester," and that the CIA's classification of JMP as a "representative of the news media" with regard to the one FOIA requests assigned to the plaintiff was an "anomaly." Id. at 4.
At the outset, both an argument posited by the plaintiff and another argument by the CIA warrant discussion. First, the plaintiff is under the misimpression that
Second, in support of summary judgment on the Assignment of Rights Policy, the CIA contends that "NSC's purported assignments ... underscore the reasonableness of the CIA's decision not to recognize the assignment of FOIA requests." Def.'s Second 443 Mem. at 13. In this vein, the CIA attempts to argue that NSC and JMP have "dissimilar objectives" because JMP "`holds itself out as a non-profit organization under the laws of the District of Columbia,'" while NSC "`is a for-profit entity located in the Commonwealth of Virginia.'" Id. (quoting Fifth Lutz Decl. ¶ 14). By making this argument, perhaps swept up in litigation fervor, the CIA is bending the record in this case in a highly misleading way. The Court has previously discussed "the common bonds connecting JMP and NSC," and how their identity of interests "establishes that their relationship `is such that [NSC] would protect [JMP's] interests if their interests diverge.'" NSC I, 898 F.Supp.2d at 257-58 (alteration in original) (quoting Feinman v. FBI, 680 F.Supp.2d 169, 175 (D.D.C.2010)). The Court also observed in the first sentence of the Background section of its opinion that "[t]he plaintiff in these related actions is a not-for-profit organization." Id. at 242. The CIA appears to conclude that NSC is a for-profit entity based on the fact that "its website appears to solicit paying customers." Def.'s Reply in Supp. Mot. Summ. J. on Counts One & Two ("Def.'s Second 443 Reply") at 7 n. 2, No. 11-443, ECF No. 64. The mere earning of income, however, is not at all an indication that an entity is organized for profit. Even non-profit organizations must pay their bills. The government, of all entities, should know that the difference between a for-profit corporation and a non-profit organization is not whether the entity earns income (or even whether it earns income at a profit). Rather, "[i]n contrast to a for-profit corporation, a non-profit organization must utilize its earnings to finance the continued provision of the goods or services it furnishes, and may not distribute any surplus to the owners." Corp. of the Presiding Bishop of the Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327, 344, 107 S.Ct. 2862, 97 L.Ed.2d 273 (1987) (Brennan, J., concurring). The CIA's shameless twisting of the factual record in this case to portray their assignment of rights position in a better light falls short of the level of representation that this Court expects of a United States government agency. The CIA should know better than to make such an obviously unfounded argument, particularly in light of the many allegations of bad faith that have been leveled by the plaintiff in these cases, including allegations that prompted a nonfrivolous motion for sanctions. See supra Part III.B; infra Parts III.F, III.H.1.
Before addressing the merits, however, the Court must briefly address a renewed standing argument put forth by the CIA with respect to Counts One and Two in No. 11-443. The CIA argues "[b]ecause NSC could file new, duplicate FOIA requests and receive the requested records at the same time it would if the CIA recognized assignments, NSC cannot show that it is harmed by the CIA's assignment policy and, therefore, does not have standing to bring Counts One and Two." See Def.'s Second 443 Reply at 9-10. The CIA recognizes that "the Court did not accept the CIA's standing arguments at the motion to dismiss stage," but it nevertheless "respectfully requests that the Court reexamine the issue." Id. at 10 n. 3. The plaintiff's response to the CIA's renewed standing argument is that such an argument "is ... staggeringly improper," and therefore the plaintiff has elected to "not even address it." See Pl.'s Corrected Reply in Supp. Cross-Mot. Partial Summ. J. on Counts One & Two ("Pl.'s 443 Reply") at 3 n. 1, No. 11-443, ECF No. 66-1. The plaintiff also vaguely states that it is aware of and "can provide several examples of cases in which" the CIA has not piggy-backed duplicate FOIA requests, which presumably would demonstrate a delayed disclosure of information. See id.
Despite the plaintiff's refusal to address the issue, and even assuming that the CIA's purported policy of piggy-backing duplicate FOIA requests eliminates any delay in the processing of duplicate FOIA requests as compared with assigned FOIA requests, the absence of delay would not deprive the plaintiff of standing to challenge the CIA's Assignment of Rights Policy. The CIA narrowly frames the plaintiff's injury as a delay in receiving information under the FOIA, see Def.'s Second 443 Reply at 9-10, but the Court has already held that the plaintiff's injury is something different in kind: the inability to exercise the statutory rights validly assigned to it by JMP, see NSC I, 898 F.Supp.2d at 259. Although the Court previously addressed this issue in the context of statutory, rather than constitutional, standing to sue in its previous opinion, see id. at 254 ("[T]he CIA's argument presents a question of statutory, rather than Article III standing."), the Court's previous analysis also establishes that a legally protected interest of the plaintiff has been harmed. See, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). The logic of this conclusion is simple: (1) the plaintiff's assignment is valid and enforceable, see NSC I, 898 F.Supp.2d at 259; (2)
As to the merits, the Court concludes that the categorical Assignment of Rights Policy constitutes a "failure to abide by the terms of the FOIA." See Payne, 837 F.2d at 491. This conclusion follows ineluctably from the Court's previous holding that "the plaintiff's Assignment is valid and enforceable." See NSC I, 898 F.Supp.2d at 259. The Supreme Court has observed that "[a]ssignees of a claim ... have long been permitted to bring suit." Sprint Commc'ns Co., L.P. v. APCC Servs., Inc., 554 U.S. 269, 275, 128 S.Ct. 2531, 171 L.Ed.2d 424 (2008). Indeed, "[a] statutory right of action is generally assignable, except where it is conferred on one of a particular class, in the nature of a personal privilege, or penalty available to him or her alone." 6A C.J.S. ASSIGNMENTS § 49 (2013). "[T]he general rules concerning assignability control in determining whether [a statutory right of action] is assignable," id. (footnote omitted), and "[t]he traditional test for assignability of a cause of action ... is whether the cause of action survives the assignor and passes to his or her personal representative; if it does, the cause of action is assignable," id. § 44; accord Accrued Fin. Servs., Inc. v. Prime Retail, Inc., 298 F.3d 291, 296 (4th Cir.2002) ("[S]tandard principles of assignment law ... recognize the legality of assigning both existing and potential choses in action, so long as the causes of action survive the death of the assignor.").
The assignability of FOIA requests is also consistent with the animating principle behind the FOIA, which is "to increase the public's access to governmental information." Blazy v. Tenet, 194 F.3d 90, 97 (D.C.Cir.1999) (emphasis in original) (quoting Greentree v. U.S. Customs Serv., 674 F.2d 74, 76 (D.C.Cir.1982)). Indeed, it is curious that the CIA's declarant attempts to justify the Assignment of Rights Policy by contending that "accepting the assignment and substituting a motivated assignee for a passive requester ... would increase [the CIA's] exposure to litigation." See Decl. of Martha M. Lutz (Jan. 30, 2013) ("Fifth Lutz Decl.") ¶ 9, No. 11-443, ECF No. 54-1. All else equal, a "motivated assignee" would actually be preferred to a "passive requester," see id., because the former would be more likely "to increase the public's access to governmental information," Blazy, 194 F.3d at 96, and thereby further the purpose of the FOIA. The CIA would have the Court believe that, due to the CIA's policy of
As to the "requester-specific provisions" of the FOIA, the CIA is correct to assert that certain rights or privileges conferred under the FOIA are non-assignable. For example, the right to (1) a public-interest fee waiver, (2) the expedited processing of a request, or (3) the release of information that implicates personal privacy, all are personal to a requester and thus cannot be assigned. See, e.g., RTC Commercial Loan Trust 1995-NP1A v. Winthrop Mgmt., 923 F.Supp. 83, 88 (E.D.Va. 1996) (holding that "certain rights are purely personal and cannot be assigned"). Hence, the CIA is correct that these personal rights and privileges could not be assigned. The plaintiff, however, does not contend that wholesale assignment is what the FOIA requires. The plaintiff, for example, does not contend that the CIA is required to allow an assignee FOIA requester to stand in the shoes of its assignor with regard to fee status. Therefore, the CIA jabs at a straw man in contending that a requirement upon agencies to recognize the assignment of FOIA requests would frustrate the purposes behind the aforementioned "requester-specific provisions" of the FOIA. See Def.'s Second 443 Mem. at 6-7. Furthermore, agency recognition of assignments of FOIA requests would, at most, merely transfer some administrative steps to the processing of a pending FOIA request that would already be taken with respect to a new, duplicative FOIA request; it would not necessitate that the "the purpose behind [the requester-specific provisions] ... be frustrated." See id. at 7.
The CIA devotes a substantial portion of its briefing and the majority of the Fifth Lutz Declaration to the contention that recognizing assignments would place an undue burden on the CIA's FOIA administrators. See Def.'s Second 443 Mem. at 7-10; Fifth Lutz Decl. ¶¶ 5-13. In this vein, the CIA enumerates several ways in which "[a]ssignment of FOIA rights would prejudice the Agency both at the administrative processing stage and in litigation." Fifth Lutz Decl. ¶ 5. Rather than recognize assignments, the CIA proposes that having putative assignee requesters simply submit a new, duplicative FOIA request would entail less prejudice to the agency and no prejudice to the requester. See id. ¶ 13. The Court disagrees.
First, according to the CIA, assignment of FOIA rights would "complicate [the CIA's Public Information Programs Division's] adjudication of requests for fee waivers, expedited processing, and placement in a given fee category." Id. ¶ 5. With respect to this first argument, the CIA essentially contends that, if a FOIA request is assigned to another person, the CIA "would be required to stop processing the request" and decide whether the assignee requester (1) is entitled to expedited processing or (2) shares the original requester's same fee category. Id. The CIA adds that, in the event of assignment, it "would also have to resolve the question as to whether fees should be charged retroactively
There is no question that, if a FOIA request were assigned by the original requester, the CIA would need to assess the applicability of the "requester-specific provisions" of the FOIA, discussed above, to the assignee requester. See supra Part III.B. 1(b). What the CIA does not explain, however, is why such an effort would "prejudice" the agency, given the fact that the CIA would have to make the exact same assessment if the assignee were to submit a new FOIA request instead of pursuing the assigned FOIA request. Hence, the assignment of a FOIA request would not add to the agency's burden in administering the requester-specific provisions of the statute, as compared to the submission of a new FOIA request: Both a new FOIA request and an assigned FOIA request would require de novo determinations regarding fee status, fee waivers, expedited processing, and the applicability of Exemptions 6 and 7(C). As to the CIA's complaint about needing to decide "whether fees should be charged retroactively," see Fifth Lutz Decl. ¶ 6, this is hardly a burden, let alone an "undue" one. First, to the extent the recognition of an assignment would permit the CIA to charge FOIA fees to the assignee when it would not have been able to charge fees to the original requester, a policy of recognizing assignments represents a net gain to the agency, not a burden. Second, the CIA is free to charge fees to any assignee FOIA requester who does not qualify for a fee waiver, just as it would be free to do if the same requester had filed a new request. Again, the administrative burdens between the two scenarios are identical.
Second, the CIA fears that "assignment of rights presents the potential for abuse." See id. ¶ 8. The CIA asserts in this regard that it "does not have the resources to inquire into the validity of the requesters' consent and assignees' acceptance or to evaluate whether the assignment comports with [the] law of the state where the assignment was conferred." Id. (footnote omitted). First, as to the state-law question, it is likely that federal common law, not state law, would govern whether the assignment of a FOIA request were valid. Cf. Gulfstream III Assocs., Inc. v. Gulfstream Aerospace Corp., 995 F.2d 425, 437 (3d Cir.1993) ("[T]he validity of the assignment of an antitrust claim is a matter of federal common law."). The FOIA has been held to preempt other state-law doctrines regarding rights of access to information. See, e.g., Ctr. for Nat'l Sec. Studies v. U.S. Dep't of Justice, 331 F.3d 918, 936 (D.C.Cir.2003) (common-law right of access); see also Hartford Fire Ins. Co. v. United States, 857 F.Supp.2d 1356, 1365 (Ct. Int'l Trade 2012) ("Because FOIA establishes a comprehensive statutory framework for disclosure of agency records, when it conflicts with existing common law rights to disclosure, such rights are preempted."). Thus, arguably, since the validity of a FOIA assignment affects the
Even if state law did apply to the validity of the assignment of a FOIA request, the CIA has failed to explain why it would need to "inquire into the validity" of every such assignment. See Fifth Lutz Decl. ¶ 8. The Court addressed this issue in its previous opinion, saying that "[a]gencies can and should shift the vast majority of any burden to the assignees themselves, requiring them to submit whatever documentation the agency deems sufficient to validate an assignment." NSC I, 898 F.Supp.2d at 259. The CIA already does this in the context of third-party consent for the release of personal information. See CIA FOIA, FOIA Helpful Hints, http://www.foia.cia.gov/foia-helpful-hints (last visited August 11, 2013) (requiring requesters who seek "records on an individual other than yourself" to provide "[a] signed notarized statement from the other individual authorizing release of personal information"). It defies all logic to say that the CIA can accept standardized third-party information releases but would need to "inquire into the validity of [each] requester['s] consent and assignee['s] acceptance." See Fifth Lutz Decl. ¶ 8. The CIA's purported investigatory burden in this regard is largely imaginary and would certainly not be undue or categorical in nature.
Third, and as referenced above, the CIA argues that the assignment of FOIA requests would "increase its exposure to litigation" by "substituting a motivated assignee for a passive requester." See Fifth Lutz Decl. ¶ 9. As discussed above, to the extent that the Assignment of Rights Policy is aimed at keeping otherwise meritorious FOIA claims out of federal courts, it is at odds with the purposes of the FOIA. See supra Part III.B. 1(b). Furthermore, the CIA's contention that "the assignee would be placed in a better position to litigate the assigned request than if they had submitted a new request on the same subject," Fifth Lutz Decl. ¶ 9, implicitly confirms that the Assignment of Rights Policy tends to prejudice requesters. To the extent an "assignee would be placed in a better position to litigate the assigned request than if they had submitted a new request on the same subject," id., then a FOIA requester "submit[ing] a new request on the same subject" would be in a worse position to litigate the assigned request, presumably because the requester would be less likely to be able to take advantage of the FOIA's constructive exhaustion provision, 5 U.S.C. § 552(a)(6)(C)(i).
Frankly, the CIA's argument in this regard appears to boil down to a concern with ensuring that the agency can present a rosier picture of its compliance with the time limits of the FOIA, rather than with any concern regarding an undue burden.
Fourth, the CIA relatedly argues that "an assignee may attempt to seek an award of attorney fees and costs citing work completed pre-assignment." Fifth Lutz Decl. ¶ 10. The CIA likewise asserts that "[i]n certain cases, a requester would not be eligible for any award `but for' an assignment." Id. ¶ 11. With respect to the latter assertion, the CIA provides two examples: (1) "were the Agency to comply with a request within the FOIA's time limits, a requester would [be] ineligible for attorney's fees," and (2) "a requester seeking already disclosed records would not satisfy the attorney fees entitlement factor that considers the public benefit derived from the case." Fifth Lutz Decl. ¶ 11. Both of these examples, however, present problematic support for the agency's position. As to the first, a simple review of the statutory language demonstrates that the CIA's conclusion is dead wrong. The FOIA provides that a "court may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case under this section in which the complainant has substantially prevailed." 5 U.S.C. § 552(a)(4)(E)(i). Therefore, in the circumstance where (1) an agency timely responds to a FOIA request and (2) withholds responsive records, but (3) the requester later secures a judgment from a court ordering the agency to disclose the responsive records that were withheld, the requester has "substantially prevailed" and would therefore be eligible for attorney's fees, despite the fact that the agency responded to the request in a timely fashion. See id. § 552(a)(4)(E)(ii) (defining "substantially prevailed" as, inter alia, "a judicial order or enforceable written agreement or consent decree"). Indeed, such a plaintiff would be eligible for attorney's fees even without a court disclosure order, so long as the plaintiff's "lawsuit substantially caused the agency to release the requested records." See Davis v. U.S. Dep't of Justice, 610 F.3d 750, 752 (D.C.Cir.2010). The legal basis for the CIA's assertion that merely responding within the statutory timeframe immunizes it from claims for attorney's fees is unclear.
As to the second example provided by the CIA, it is totally implausible that "a requester seeking already disclosed records" would ever substantially prevail in a FOIA lawsuit. See Fifth Lutz Decl. ¶ 11. Assuming that, by "already disclosed," the CIA means already officially disclosed, the only way this could occur would be if the agency in question refused to provide the requester with the "already disclosed records," thus necessitating a court order. This scenario is particularly implausible because the CIA asserts later in its declaration that processing "requests for previously requested records" is simple and expedient because "the legwork for the request has been completed." Id. ¶ 12. Presumably, processing a FOIA request
In short, the two examples provided by the CIA with regard to attorney's fees do not come close to establishing any kind of "undue burden" that would result from the recognition of assignments. The same is true of the CIA's concern that "an assignee may attempt to seek an award of attorney fees and costs citing work completed pre-assignment." See Fifth Lutz Decl. ¶ 10. Similar to the litigation burden argument addressed above, requiring the CIA to incur attorney's fees — including attorney's fees for work completed pre-assignment — is not an undue burden. Attorney's fees are the price exacted from agencies by the FOIA, designed to "remove the incentive for administrative resistance to disclosure requests based ... on the knowledge that many FOIA plaintiffs do not have the financial resources or economic incentives to pursue their requests through expensive litigation.'" Davy v. CIA, 550 F.3d 1155, 1158 (D.C.Cir.2008) (quoting Nationwide Bldg. Maint., Inc. v. Sampson, 559 F.2d 704, 711 (D.C.Cir.1977)). It is thus telling that the CIA discusses "an incentive ... to litigate requests that would otherwise not be pursued" as if it were something the FOIA seeks to discourage. See Fifth Lutz Decl. ¶ 11.
Finally, the CIA claims that "no prejudice [would] result[ ] from requiring individuals to submit a [new and duplicative] FOIA request." Id. ¶ 12. Embedded within this contention, however, is yet another inconsistency. As discussed above, the CIA contends that having to reassess the applicability of the FOIA's "requester-specific provisions" for an assigned request would be an undue burden. See id. ¶¶ 5-7. Yet, when the CIA must perform that same reassessment for a new, duplicative FOIA request, it says that the task is simple and that it "often result[s] in a response to a requester within the statutory timeframe." Id. ¶ 12. Both positions cannot simultaneously be accurate.
Furthermore, the CIA only considers two factual circumstances in its declaration: (1) "requests for previously requested records," and (2) "a request for the same subject as an outstanding request." Id. Yet, the facts of the instant case fall into a third category: an assignee requester seeks to step into the shoes of an original requester while the request in question is making its way through the administrative appeal process. See NSC I, 898 F.Supp.2d at 244 (discussing how JMP assigned request to NSC nearly six months after JMP had filed administrative appeal). Indeed, in this case, NSC sought to amend the pending administrative appeal with respect to the assigned request over a year after the administrative appeal had been filed. See id. In light of this factual predicate, the CIA does not explain how requiring NSC to file a new FOIA request would have resulted in no delay. The CIA would have first needed to process the new request, and although "the legwork for the request ha[d] [already] been completed," Fifth Lutz Decl. ¶ 12, the CIA would have admittedly had to assess NSC's fee status and right to expedited processing, see id. ¶ 5. Then, NSC would have had to file an administrative appeal from scratch.
The CIA does not state whether it also "piggybacks" administrative appeals for the same information, nor does the CIA say whether such appellate "piggybacking" would be feasible, since even multiple requests for the same information are liable to raise distinct and separate issues in
In sum, the Court concludes that the CIA's admitted Assignment of Rights Policy constitutes a "failure to abide by the terms of the FOIA." See Payne, 837 F.2d at 491. The Court likewise concludes that the CIA's ongoing failure is not excused by the presence of any undue burden that would result from recognizing the assignment of rights associated with FOIA requests. Thus, the CIA may no longer categorically refuse to recognize the assignment of FOIA requests, and the Court will grant summary judgment to the plaintiff on Count Two in No. 11-443.
Additionally and relatedly, since the CIA cites only the Assignment of Rights Policy as the justification for not providing any final administrative response to the plaintiff regarding FOIA request No. F-2008-01105 (the request assigned by JMP to the plaintiff), the CIA has not met its burden at summary judgment. Since the Assignment of Rights Policy is invalid and thus clearly not sufficient to justify the CIA's refusal to permit the plaintiff to pursue its administrative appeal, the Court will grant summary judgment to the plaintiff on Count One in No. 11-443 as well. The current status of the FOIA request at issue in Count One, however, is not clear. The CIA stated in January 2013 that this request was "still pending." See Fifth Lutz Decl. ¶ 4. Likewise, the plaintiff states in its Complaint that the FOIA request was administratively appealed prior to the assignment being issued. See 443 Compl. ¶¶ 9-13. Thus, although the plaintiff requests the Court to "order CIA to immediately release all currently withheld information responsive to ... the FOIA request at issue in Count 1," see Pl.'s 443 Cross-Mot. Mem. at 2, the Court will remand this matter to the agency rather than order the release of responsive records. On remand, the CIA must permit the plaintiff to exhaust its administrative remedies through the administrative appeals process as an assignee of the FOIA request in question.
In Count Twenty of No. 11-445, the plaintiff complains that the CIA has a policy or practice "of refus[ing] to invoke exemptions with particularity." See 445 FAC ¶ 131. Specifically, the plaintiff alleges that the CIA's policy is to "invoke[ ] [FOIA] exemptions on a document-level without indicating which exemptions applied to which particular redactions." Id. ¶ 129. In its previous opinion, the Court dubbed this the "Document-Level Exemption Policy." See NSC I, 898 F.Supp.2d at 243. The FOIA requires that, when an agency releases segregable portions of a record, "the exemption under which the deletion is made, shall be indicated on the released portion of the record, unless including that indication would harm an interest protected by the exemption ... under which the deletion is made." 5 U.S.C. § 552(b). In this regard, the FOIA also states, "[i]f technically feasible, ... the exemption under which the deletion is made, shall be indicated at the place in the record where such deletion is made." Id. Finally, the FOIA provides that "a court shall accord substantial weight to an affidavit of an agency concerning the agency's determination as to technical feasibility under... subsection (b)." Id. § 552(a)(4)(B).
In the instant case, the CIA defends its Document-Level Exemption Policy by contending that "it is not currently technically feasible for the Agency to assert exemptions on the redaction level." Def.'s Mem. in Supp. Mot. Summ. J. on Counts Twelve & Twenty ("Def.'s Second 445 Mem.") at 2, No. 11-445, ECF No. 42. To support this contention, the CIA has submitted the sworn declaration of Michele Meeks, who is the chief of the CIA's Public Information Programs Division ("PIPD") and also the CIA Information and Privacy Coordinator ("IPC"). See Decl. of Michele L. Meeks (Apr. 29, 2013) ("Meeks Decl.") ¶ 1, No. 11-445, ECF No. 42-1. In that declaration, Ms. Meeks explains that "[t]he CIA's [FOIA] review process is decentralized whereby each of the [CIA's] five directorates... maintains an [Information Review Officer, or `IRO'] staff that reviews Agency records and makes public release determinations with an eye toward evaluating directorate-specific equities." Id. ¶ 4. Ms. Meeks also explains that "records frequently involve the equities of multiple directorates," and "[w]hen records implicate the operational interests of multiple directorates, the reviews are conducted by the relevant IROs simultaneously." Id. ¶¶ 5-6. Within each directorate, "IRO staffers electronically redact any protectable material and indicate the basis for the redaction on the page," and each directorate maintains "a separate electronic version of the document." Id. ¶ 6.
Once all relevant directorates have completed their reviews, Ms. Meeks explains, the CIA "then consolidates the redactions generated by the reviewing IRO staffs into a single document." Id. ¶ 7. In this regard, Ms. Meeks states that "there is frequently variation as to what is redacted by the different directorates," and in that circumstance, "[CIA] staffers compile the redactions made by each directorate and merge all of the redactions into a final
The Court is mindful that it has a statutory obligation to "accord substantial weight" to Ms. Meeks' statements regarding the CIA's determination of technical feasibility, see 5 U.S.C. § 552(a)(4)(B), but Ms. Meeks' explanation of the purported technical infeasibility of noting redaction-level exemptions has several unexplained gaps and inconsistencies. It should be noted again at the outset that the CIA's Document-Level Exemption Policy is, like the Assignment of Rights Policy, categorical in nature. See Meeks Decl. ¶ 8 ("[A]t present, the Agency indicates all the applicable exemptions in the top corner of the released document."). This characteristic of the policy is notable, considering that the basis for the Document-Level Exemption Policy is that, when multiple directorates review a record, "the exemptions appear on top of one another and are unreadable." Id. ¶ 8. Yet, Ms. Meeks explicitly concedes that records only "frequently involve the equities of multiple directorates." Id. 15 (emphasis added). That this situation occurs frequently is no justification for imposing the policy categorically, regardless of whether indicating redaction-specific exemptions is technically feasible when multiple directorates review the same document. Hence, when, for example, only one directorate reviews a given record or only one directorate indicates a redaction on a given record, the CIA's Document-Level Exemption Policy is clearly unsupported and contrary to the FOIA.
Furthermore, Ms. Meeks' explanation of technical infeasibility is perplexing. The CIA's process of redacting information, as explained by Ms. Meeks, only makes sense up until she explains what happens when the various electronic versions of a record are "merge[d]," after each directorate has reviewed it. See id. ¶¶ 7-8. First, Ms. Meeks states on the one hand that "there is frequently variation as to what is redacted by the different directorates," implying that there is frequently no overlap between the directorates' redactions. See id. ¶ 7 (emphasis added). Indeed, this makes sense because, as Ms. Meeks points out, each directorate has "separate operational equities at issue." See id. Yet, in the very next paragraph of her declaration, Ms. Meeks reverses course, stating that "the exemptions appear on top of one another and are unreadable" due to "the substantial overlap of the redactions in each of the directorate's versions." Id. ¶ 8 (emphasis added).
Of course, "frequent[ ] variation" and "substantial overlap" are not mutually exclusive, but the CIA's declaration does not explain why exemptions cannot be indicated next to a redaction that was made by only one directorate. It would be one thing if the CIA were to aver that every single redaction is always made by at least two directorates, but the CIA does not even suggest that to be the case. In fact, it would appear not to be the case because Ms. Meeks' declaration strongly implies that, at least sometimes, an entire document is reviewed by only one directorate,
Therefore, even according the "substantial weight" due to the CIA's declaration on the issue of technical feasibility, see 5 U.S.C. § 552(a)(4)(B), the Court concludes that the CIA's categorical Document-Level Exemption Policy constitutes a "failure to abide by the terms of the FOIA." See Payne, 837 F.2d at 491. The CIA must make a case-by-case determination regarding the technical feasibility of indicating a claimed exemption associated with a deletion "at the place in the record where such deletion is made." See 5 U.S.C. § 552(b). Additionally, based on the CIA's representations, the CIA can only possibly claim technical infeasibility if the same redaction in question was made by more than one directorate within the CIA. The Court will thus grant summary judgment to the plaintiff with respect to Count Twenty in No. 11-445.
Next, the Court will discuss the plaintiff's challenges to the adequacy of the search efforts of defendants CIA, State Department, and NSA in responding to four separate FOIA requests. The Court will address the considerations related to each request in turn.
In response to the plaintiff's January 26, 2011 FOIA request seeking "all [CIA] records pertaining to the search tools and indices available to the Office of Information Management Services (`IMS') for conducting searches of its own records in response to FOIA requests," the CIA determined that the Director's Area was the only directorate within the CIA reasonably likely to have records responsive to the request. See First Lutz Decl. ¶ 48. The stated reason for this determination is that the request sought records "available to IMS," and "IMS is a component within the Director's Area." See id. The CIA avers that the plaintiff's request "was sent to IMS professionals who had personal knowledge of what search tools and indices were available and personally used by IMS personnel to search IMS records systems because they themselves use the search tools and indices references in the request." Id. ¶ 50. The IMS personnel "electronically searched the IMS records system as well as manually searched for independently known records that were responsive to Plaintiff's request." Id. ¶ 51.
The plaintiff raises two objections to the adequacy of the CIA's search in response
It is true that "the agency's failure to turn up a particular document, or mere speculation that as yet uncovered documents might exist, does not undermine the determination that the agency conducted an adequate search for the requested records." Wilbur, 355 F.3d at 678. At the same time, however, agency affidavits must "`explain in reasonable detail the scope and method of the search conducted by the agency.'" See Morley, 508 F.3d at 1121 (quoting Perry v. Block, 684 F.2d 121, 127 (D.C.Cir.1982)). In particular, in order to satisfy its burden of establishing the adequacy of its search, an agency's affidavit must "describe in ... detail what records were searched, by whom, and through what process." Steinberg v. U.S. Dep't of Justice, 23 F.3d 548, 552 (D.C.Cir.1994). "A reasonably detailed affidavit, setting forth the search terms and the type of search performed... is necessary to afford a FOIA requester an opportunity to challenge the adequacy of the search and to allow the district court to determine if the search was adequate in order to grant summary judgment." Oglesby, 920 F.2d at 68.
The CIA has failed to meet its burden in this case. Critically, the CIA's declaration does not state what parameters were used to accomplish the search, i.e., whether the CIA searched for the indices themselves or what search terms the CIA used to identify responsive records. The CIA's declaration merely states in conclusory fashion that "IMS employees... conducted an adequate search for records responsive to Plaintiff's request" by "search[ing] electronically for responsive documents and manually search[ing] for independently known responsive documents." First Lutz Decl. ¶ 53. The CIA is correct that the plaintiff's specific arguments improperly focus on "the agency's failure to turn up ... particular document[s]," i.e., the search indices themselves, and offer "mere speculation that as yet uncovered documents might exist," i.e., documents about other records systems. See Wilbur, 355 F.3d at 678. Even so, the plaintiff's arguments underscore the more fundamental deficiency in the CIA's declaration, which is that the CIA does not provide sufficient information for the Court to conclude that its search methods were "reasonably calculated to uncover all relevant documents." See Morley, 508 F.3d at 1114. Based on the vague and conclusory assertions in the CIA's declaration, the Court would be required to speculate in order to conclude that the agency's search efforts "us[ed] methods which can be reasonably expected to produce the information
As stated above, the plaintiff submitted a FOIA request to the CIA on September 25, 2009, seeking "all [CIA] records, including cross-references, pertaining to guidelines for attorneys in the Office of General Counsel (`OGC') for the conduct of civil cases, especially pertaining to interactions between OGC attorneys and Department of Justice (`DOJ') attorneys." First Lutz Decl. Ex. T at 1. In response to this request, the CIA's declarant avers that "IMS professionals determined that the Director's Area was the only directorate reasonably likely to have" responsive records. First Lutz Decl. ¶ 60. The Director's Area then "tasked the [OGC] to search for records responsive to the Plaintiff's request." Id. ¶ 61. The OGC in turn "searched relevant records systems containing all files reasonably likely to contain responsive materials and located no records responsive to Plaintiff's request." Id. ¶ 62. OGC further "consulted [the CIA's] Litigation Division management regarding this request" because the Litigation Division "is the component within OGC that interacts most frequently with DOJ attorneys, usually on a daily basis." Id. According to the CIA's declarant, "Litigation Division management confirmed that as of [December 2010], no documents responsive to Plaintiff's request existed." Id.
The plaintiff again raises two objections to the adequacy of the CIA's search. First, the plaintiff raises what it refers to as "an existential problem — it is completely unfathomable that the [OGC] would have no records pertaining to guidelines for the conduct of civil cases." Def.'s First 444 Opp'n at 26. Second, the plaintiff raises the "issue of cut-off dates." Id. at 27. The plaintiff states that the CIA "has a practice of assigning a cut-off date to every request of the date the acknowledgement letter is written." Id. Neither of these contentions is sufficient to defeat summary judgment. As to the first, and as noted above, "the agency's failure to turn up a particular document, or mere speculation that as yet uncovered documents might exist, does not undermine the determination that the agency conducted an adequate search for the requested records." Wilbur, 355 F.3d at 678. The plaintiff's incredulity regarding the absence of responsive records is insufficient to overcome an otherwise adequate search.
The second objection is premised on a semantic hair-splitting of the CIA's declaration. In particular, the plaintiff notes ambiguous language in the CIA's declaration that could suggest that the CIA did not search for any records created after the date the CIA accepted the plaintiff's FOIA request. See Pl.'s First 444 Opp'n at 6-7, 27-28. The plaintiff's suspicions aside, the Court reads the CIA's declaration to state that the CIA searched for records referenced in the plaintiff's September 25, 2009 FOIA request as late as December 2011. See First Lutz Decl. ¶ 62. This is not an unreasonable cut-off date. See, e.g., Public Citizen v. Dep't of State, 276 F.3d 634, 644 (D.C.Cir.2002) (implicitly approving as reasonable a "date-of-search cut-off [date]").
Although neither of the grounds raised by the plaintiff is sufficient to defeat summary judgment, the Court nevertheless cannot grant summary judgment to the CIA because the CIA's declaration fails to satisfy the minimal burden under the FOIA to establish the adequacy of the search. It is axiomatic that, for an agency to win summary judgment in a FOIA case,
As discussed above, on February 6, 2010, the plaintiff submitted a FOIA request to the State Department, seeking "copies of all current training handbooks, manuals, guidelines, checklists, worksheets, and similar documents provided to [State Department] FOIA and Privacy Act analysts (both agency employees and contractors)." First Walter Decl. Ex. 1, at 1. In response, the State Department "determined that the office that was reasonably likely to have responsive documents was the Bureau of Administration's Office of Information Programs and Services [`IPS']." First Walter Decl. ¶ 16. The State Department's declarant explains: "Because the request sought training materials provided to the [State] Department's `FOIA and Privacy Act analysts (both agency employees and contractors),' the [State] Department only searched IPS branches that employ FOIA and/or Privacy Act analysts because only those components were reasonably likely to have documents responsive to the subject request." Id. ¶ 18. In all, the seven branches of IPS that employ FOIA or Privacy Act analysts were searched, and those searches yielded 122 responsive records. See id. ¶¶ 18-24.
Also as discussed above, the State Department's Bureau of Diplomatic Security ("DS") independently responded to the plaintiffs' request on March 1, 2013, releasing twenty-six responsive records that had not been released by IPS. See Notice of Recent Development Regarding Count 9, at 1. As the State Department's declarant explains, "IPS delegates limited authority to certain [State] Department components, including DS [and four other State Department components], to assist with the processing of [FOIA or Privacy Act] requests for purposes of administrative expediency and efficiency." Third Walter Decl. ¶ 3. Indeed, the State Department's declarant explains that these five State Department components, including DS, "conduct their own FOIA/Privacy Act reviews and respond directly to requesters," despite the fact that "IPS is the [State] Department's central office for the processing of FOIA/Privacy Act requests and the development of FOIA policies and training." Id. ¶ 4. Despite the fact that DS released numerous, unique responsive records, "the [State] Department stands by its decision to limits its search ... to IPS." Id.
Although the State Department appears unphased by the independent
Also on February 6, 2010, the plaintiff submitted a substantially identical FOIA
The D.C. Circuit has established that an agency "has a duty to construe a FOIA request liberally," Nation Magazine, 71 F.3d at 890, and is "bound to read it as drafted" not as "agency officials ... might wish it was drafted," Miller v. Casey, 730 F.2d 773, 777 (D.C.Cir.1984). In this regard, it is clear that, for example, when a FOIA requester "seek[s] all of a certain set of documents" while also "evincing a heightened interest in a specific subset thereof," such a request "is reasonably susceptible to the broader reading" of seeking the entire set of documents despite the fact that a specific subset of documents is named. LaCedra v. Exec. Office for U.S. Attorneys, 317 F.3d 345, 348 (D.C.Cir.2003); see also Nation Magazine, 71 F.3d at 890 (holding that FOIA request seeking records "`pertaining to' [Ross] Perot" and specifically "ask[ing] for records indexed under Perot's name" was "sufficient to alert the agency that appellants sought information about Perot, even if it was not indexed under his name"). The question presented regarding the adequacy of the NSA's search is simply whether templates, which appear to be used primarily as boilerplate language to respond to FOIA requesters, should have been considered responsive to the plaintiff's request for training materials.
The Court concludes that, reading the plaintiff's FOIA request "liberally," Nation Magazine, 71 F.3d at 890, the templates referred to are responsive to the plaintiff's request. Templates used by agency personnel to respond properly and uniformly to FOIA requesters are "material used ... to train [FOIA] personnel," which is the material for which the NSA ostensibly searched. See Phillips Decl. Att. 2, No. 11-445, ECF No. 29-13. Such templates are the functional equivalent of a guidance document instructing FOIA analysts what to say to requesters in certain situations, and thus should have been considered "similar documents," as described in the plaintiff's request. See Phillips Decl. Ex. 1, at 1. Indeed, the templates appear to play an important role in the guidance documents that the NSA provides to its FOIA analysts. See, e.g., Pl.'s First 445 Opp'n Ex. R at 2, No. 11-445, ECF No. 33-18 ("If no records are located, the proper response letter to use is a PA Negative GLOMAR."); id. at 3 ("If the requester only requests records pertaining to these types of activities being used against him/her, then the Case Officer should use the FOIA — Directed Energy letter and MR templates, and no search request to Security is required."). As a result, the Court denies summary judgment
In sum, the Court denies summary judgment to the CIA on Counts Eighteen and Twenty in No. 11-444 with regard to the adequacy of the CIA's search efforts. The Court further denies summary judgment to the State Department and the NSA on Counts Nine and Ten in No. 11-445, respectively, with respect to the adequacy of those agencies' search efforts.
As discussed above, the CIA refused to process seven FOIA requests submitted by the plaintiff, and the plaintiff challenges those refusals here in four separate counts. The Court will discuss the material requested in each of the seven requests and discuss whether it was permissible for the CIA to refuse to process them.
First, the CIA refused to process the plaintiff's FOIA request which sought "a representative sample of [CIA] analytical reports and memoranda presenting psychological analyses or profiles of foreign government officials, terrorist leaders, international criminals, business figures, and other intelligence targets prepared by the Medical and Psychological Analysis Center (`MPAC') or its predecessor Office of Leadership Analysis (`OLA')." See First Lutz Decl. Ex. M at 1. As discussed above, see supra Part I.B.5, the plaintiff provided four "guidelines" to the CIA regarding "what we consider a `representative sample,'" which included (1) "[o]nly final official reports or memoranda that discuss an MPAC/OLA analyst's conclusions about a target's psychology," (2) "[n]o more than twenty reports/memoranda for each year," (3) "[f]our reports/memoranda for each year (unless less were created that year) for individuals in each category of intelligence target," and (4) "[r]easonable variety in the intelligence targets wherever possible (e.g., foreign government officials should be from a variety of foreign governments, terrorist leaders should be from different terrorist organizations, etc.)." Id. at 1-2. As to the fourth guideline, NSC further stated that "[f]or the foreign government officials, we would also appreciate if possible a variety of the type of officials (e.g., some heads of state, some intelligence officials, some law enforcement officials, some financial officials, etc.)." Id. at 2.
Citing "the breadth and lack of specificity of [NSC's] request," the CIA refused to process this request "because it would require the Agency to perform an unreasonably burdensome search." First Lutz Decl. Ex. N at 1. In assessing this response, the Court is guided by two principles: First, "if an agency has not previously segregated the requested class of records[,] production may be required only where the agency can identify that material with reasonable effort." Goland v. CIA, 607 F.2d 339, 353 (D.C.Cir.1978) (internal quotation marks omitted). Second, "[a]n agency need not honor a request that requires `an unreasonably burdensome search.'" Am. Fed'n of Gov't Emps., Local 2782 v. U.S. Dep't of Commerce, 907 F.2d 203, 209 (D.C.Cir.1990) (quoting Goland, 607 F.2d at 353). In this case, the CIA was justified in refusing to process the plaintiff's May 13, 2010 FOIA request because it did not "reasonably describe[]" the records sought. See 5 U.S.C. § 552(a)(3)(A). The D.C. Circuit has held that "[t]he linchpin inquiry" in determining whether a request "reasonably describes" the records sought is "whether the agency is able to determine `precisely what records are being requested.'" Yeager v.
Although the plaintiff provided "guidelines" to describe the category of records it sought, those guidelines still left a significant amount of ambiguity about "precisely what records [were] being requested." Id. (internal quotation marks omitted). Notably, although the plaintiff limited the date range and number of reports requested, the plaintiff's request would still place an unreasonable search burden for two primary reasons. First, the plaintiff's guideline asking for "[f]our reports/memoranda for each year (unless less were created that year) for individuals in each category of intelligence target," see First Lutz Decl. Ex. M at 1, would require the agency to examine and sift through a larger body of records to ensure that only one report/memorandum from a given category were included from any given year. This sort of sifting and analysis is not a burden that the FOIA imposes on federal agencies. See, e.g., Assassination Archives & Research Ctr. v. CIA, 720 F.Supp. 217, 219 (D.D.C.1989) ("FOIA was not intended to reduce government agencies to full-time investigators."). Second, the plaintiff's request asked the CIA to provide "[r]easonable variety in the intelligence targets," and also asked for "a variety of the type of officials." See id. at 2. This sort of request is inherently burdensome because it requires the agency to weigh whether the variety it has provided is "reasonable" or not, which superimposes a layer of subjective analysis onto the agency's response effort which the FOIA does not require.
The Court appreciates the fact that this request was made because the CIA "refused to process a previous request for all official final psychological profiles produced by the offices in question," see Pl.'s First 444 Opp'n at 18, but the plaintiff has taken one step forward and two steps back with this most recent iteration of its request. The plaintiff was correct to begin limiting its request by time and subject matter, but attempting to limit its request with vague and malleable terms like "reasonable variety" is not, as the plaintiff contends, a "narrow and rigid definition of what constitutes a representative sample." See id. at 17. Such terms only cloaked the plaintiff's request in more uncertainty, and the CIA was not obligated to respond to it. The Court will grant summary judgment to the CIA on Count Nine in No. 11-444.
Second, the CIA (partially) refused to process the plaintiff's request for "a record that would indicate the ten individuals responsible for the most FOIA requests submitted (each) in Fiscal Years 2008, 2009, and 2010." See First Lutz Decl. Ex. K at 1. In its request letter, the plaintiff laid out four methods by which the CIA could provide the information requested: (1) "[a]n index including only the ten most prolific requesters for each year," (2) "[a]n index including all requesters for each year," (3) "FOIA request letters from the ten most prolific requesters for each year," or (4) "[a]ll FOIA request letters submitted to the CIA for each year." Id. at 1-2. The CIA eventually agreed to process the fourth option, but after the plaintiff refused
To support its contention about the feasibility of the CIA providing "[a]n index including all requesters for each year," the plaintiff points to "CADRE processing material" that was included in a recent release made to a FOIA requester that is not a party to this lawsuit. See id. at 4. These materials, the plaintiff states, "show[] that the results of a CADRE search can be sorted by FOIA request number," and therefore "all that would need to be done to satisfy NSC's request would be to conduct a search of CADRE that yielded all requests, sort the results by Case Id, and print those pages that contained the entries for 2008-2010." Id. In this same vein, the plaintiff contends that "there is no rule that says that an agency does not have to manually manipulate database information if it is not unduly burdensome to do so, such as typing in a search term, sorting the results, and printing them." Id. at 4-5. According to the plaintiff, "[d]oing so is not considered `creating a record.'" Id. at 5.
The Court has already addressed this question in its previous opinion. "[T]he FOIA imposes no duty on the agency to create records." Forsham v. Harris, 445 U.S. 169, 186, 100 S.Ct. 977, 63 L.Ed.2d 293 (1980); accord Yeager, 678 F.2d at 321 ("It is well settled that an agency is not required by FOIA to create a document that does not exist in order to satisfy a request."). In this regard, "[e]lectronic database searches are ... not regarded as involving the creation of new records." People for the Am. Way Found. v. U.S. Dep't of Justice, 451 F.Supp.2d 6, 14 (D.D.C.2006); accord NSC I, 898 F.Supp.2d at 270 ("[S]orting a pre-existing database of information to make information intelligible does not involve the creation of a new record...."). "Producing a listing or index of records, however, is different than producing particular points of data (i.e., the records themselves)." NSC I, 898 F.Supp.2d at 271. "[A] FOIA request for a listing or index of a database's contents that does not seek the contents of the database, but instead essentially seeks information about those contents, is a request that requires the creation of a new record, insofar as the agency has not previously created and retained such a listing or index." Id.; accord People for the American Way, 451 F.Supp.2d at 15 (producing a "list of records returned from [a database] search" is "something that FOIA does not mandate" because "the list was not previously created or obtained by the agency" and "an order that defendant produce such a list would be tantamount to requiring defendant to create an agency record").
Thus, the CIA is correct that "NSC's argument ignores this Court's decision" in contending that the production of an index is not the creation of a record, where that index had not been previously created and retained. See Reply in Supp. Def.'s Mot. Summ. J. on Counts Eight and Twenty-One ("Def.'s Second 444 Reply") at 3, No. 11-444, ECF No. 47. The CIA avers that it "does not maintain an `index file' of requesters." See Seventh Lutz Decl. ¶ 8.
Third, the CIA refused to process the plaintiff's request for "a database listing of all the FOIA requesters from FY 2008-present that [the CIA has] classified as" either "educational or scientific," "commercial," "all other," or "news media." See First Lutz Decl. Exs. A-D. The CIA explains its refusal to process this request by saying that it "does not have the capability to sort its incoming FOIA requests based on fee categories." First Lutz Decl. ¶ 11. The CIA's declarant also states that "this information [i.e., fee category] is not included in the electronic system," though the CIA's declarant also avers that "[f]ee category is not a mandatory field," and thus "this information is often not included in a FOIA request record." Id. The plaintiff focuses on the ambiguities in these statements, contending that (1) the word "incoming" is unclear, and (2) the fact that fee information is only "often not included" is an indication that it is sometimes included. See Pl.'s First 444 Opp'n at 10-11.
These ambiguities, however, only address the CIA's capability of sorting FOIA requests by fee category — they do not speak to whether the CIA has chosen to create and retain the "database listings" that the plaintiff seeks. As to this latter issue, the principles outlined above regarding the creation of records apply. See supra Part III.D.2. It is clear from the CIA's declaration that the agency has not chosen to create and retain such database listings, see First Lutz Decl. ¶ 11 ("FOIA analysts would then be required to create new records that identify each request by fee category and provide these newly created records to the Plaintiff."), and the FOIA does not obligate the CIA to create such database listings, see, e.g., Forsham, 445 U.S. at 186, 100 S.Ct. 977. The plaintiff does not contest this, and in fact the plaintiff appears to recognize that creating a new record would be required to respond to these requests. See Pl.'s First 444 Opp'n at 12 ("All that a CIA FOIA analyst would have to do to fill these four requests is ... [inter alia] print out the remaining entries into four documents, one for each category." (emphasis added)). These "four documents" the plaintiff seeks are not documents the CIA "has in fact chosen to create and retain." See Yeager, 678 F.2d at 321. Since the CIA was not required to create such records in response to the plaintiff's FOIA request, the Court will grant summary judgment to the CIA on Count One in No. 11-444.
Finally, the CIA refused to process the plaintiff's FOIA request that sought "a copy of all [CIA] records pertaining to the IBM supercomputer `Watson.'" See First Lutz Decl. Ex. O at 1. The CIA says that it refused to process this request because it "does not specify what type of information it seeks relating to Watson; instead, the request generally seeks all information on Watson." First Lutz Decl. ¶ 29 (emphasis in original). Furthermore, the CIA's declarant states that "it is difficult to determine where responsive information would likely be located within the Agency because the request is so general," and therefore "the CIA would be required to search every office for any documents containing the word `Watson.'" Id. ¶ 31
The plaintiff opposes a grant of summary judgment to the CIA with respect to this request, contending that the CIA is applying "the misguided rule that any request
With respect to the plaintiff's contention about the CIA's alleged "misguided rule," this Court previously dismissed the plaintiff's related policy-or-practice claim, which alleged that the CIA had "a policy or practice of applying a definition of the FOIA's `reasonably describes' requirement that `is significantly and consistently broader than is allowed by FOIA.'" NSC I, 898 F.Supp.2d at 273 (quoting 444 FAC ¶ 58). As the Court previously stated, "the question of whether a particular FOIA request `reasonably describes' the records sought is a highly context-specific inquiry, ill-suited to abstract analysis." Id. at 278. Thus, the Court will focus on the specific context of the plaintiff's FOIA request for "all [CIA] records pertaining to the IBM supercomputer `Watson.'"
The plaintiff's arguments regarding "the misguided rule" regarding requests that contain the terms "relating to" or "pertaining to" — as well as the plaintiff's related discussion of Judge Young's opinion in Mass. Dep't of Pub. Welfare — miss the point. As the CIA clarifies in its reply brief, "[t]he CIA determined that NSC's request for all documents pertaining to Watson was overly broad because the request did not allow CIA FOIA analysts to reasonably determine where responsive records were likely to be located, not because the request contained the phrase `pertaining to.'" Def.'s First Reply to Opp. to Mot. for Summ. J. ("Def.'s First 444 Reply") at 8, 11-444, ECF No. 27. Indeed, as the CIA's declarant states, the CIA refused to process this request because it would require the CIA "to search every office for any documents containing the word `Watson," which the CIA characterizes as "a massive undertaking." First Lutz Decl. ¶ 31.
The plaintiff only barely addresses this burden issue by contending that "[a]ny CIA professional who was familiar with the subject area of the request (computer science or, more specifically, artificial intelligence) would be able to easily determine which [CIA] components were likely to have responsive records." Pl.'s First 444 Opp'n at 23. Yet, the plaintiff's assertion begs the very question that underlies the CIA's reason for refusing to process the request in the first place. The plaintiff
Relatedly, although the plaintiff focuses on the oft-cited requirement that a request must "`enable[] a professional agency employee familiar with the subject area to locate the record with a reasonable amount of effort,'" see Pl.'s First 444 Opp'n at 23 (quoting Judicial Watch v. Exp.-Imp. Bank, 108 F.Supp.2d 19, 27 (D.D.C.2000)), the plaintiff fails to recognize that this is a necessary, but not sufficient, condition of adequacy. Even where a request "identif[ies] the documents requested with sufficient precision to enable the agency to identify them," the request may still fail to "reasonably describe[]" the records sought if it is "so broad as to impose an unreasonable burden upon the agency." See Am. Fed'n of Gov't Emps., 907 F.2d at 209.
The Court will next discuss the challenges that the plaintiff makes to certain decisions by the defendants to withhold responsive information under the FOIA's statutory exemptions. The plaintiff raises challenges to withholding determinations made pursuant to FOIA Exemptions 1, 2, 3, 5, and 6. The Court will discuss the arguments made about each exemption in turn.
The plaintiff challenges Exemption 1 withholding determinations made by defendants DIA and CIA. As to the CIA, the plaintiff specifically challenges the withholding pursuant to Exemption 1 of (1) sixteen responsive records in full under Counts One, Two, Three, and Seven in No. 11-445, and (2) article titles from 105 responsive records under Count Three in No. 11-443. See Pl.'s First 445 Opp'n at 5; Pl.'s In Camera Opp'n to Def.'s Mot. Summ. J. on Count Three ("Pl.'s First 443 Opp'n") at 11-14, No. 11-443, ECF No. 58.
As discussed above, the general rule in FOIA cases is that "[i]f an agency's affidavit describes the justifications for withholding the information with specific detail, demonstrates that the information withheld logically falls within the claimed exemption," and "is not contradicted by contrary evidence in the record or by evidence of the agency's bad faith, then summary judgment is warranted on the basis of the affidavit alone." ACLU/DOD, 628 F.3d at 619. FOIA Exemption 1 provides that "matters that are" either "specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy" or "are in fact properly classified pursuant to such Executive order" are exempt from production under the FOIA. See 5 U.S.C. § 552(b)(1). "[I]n the FOIA context, [the D.C. Circuit has] consistently deferred to executive affidavits predicting harm to the national security, and have found it unwise to undertake searching judicial review." Ctr. for Nat'l Sec. Studies,
In No. 11-445, the plaintiff broadly argues that the declarations offered by the CIA and the DIA to establish the applicability of Exemption 1 are insufficient because they only contain "a simple recitation of the statutory standard." See Pl.'s First 445 Opp'n at 7; accord id. at 8-9 ("Simply stating without any support that information is related to intelligence sources and methods is not sufficient, regardless of the deference given to agencies in national security matters."). In this regard, the plaintiff asks the Court to "order [the CIA and DIA] to promptly file a more sufficient Vaughn index consisting of something more than a parroting of the statutory standards." Id. at 9. The plaintiff contends that this "something more" should, inter alia, "include the date of classification of each document and the person who classified it, to ensure that the information was classified in accordance with Executive Order 13526." Id.
The CIA's declarant explains that information withheld under Exemption 1 in No. 11-445 falls into two categories: (1) "information on unacknowledged persons and activities," or (2) "the specifics of FOIA requests referred from other government agencies for which the CIA sought non-attribution." Third Lutz Decl. ¶ 27. The CIA's declarant clarifies that both categories of information "implicat[e] intelligence activities," and the documents in question specifically contain (1) "acronyms which disclose the CIA's involvement in geographic locations and intelligence operations not officially acknowledged," and (2) "information that would disclose the fact that the CIA collected intelligence on certain individuals and event[s] which have not been officially acknowledged." Id. ¶ 28, 30. The CIA has also provided a document-by-document Vaughn index, which describes the general character of each withheld document and the exemption or exemptions claimed for each. See Third Lutz Decl. Ex. K, No. 11-445, ECF Nos. 29-2 through 29-7. With respect to the two documents withheld under Exemption 1 by the DIA, the agency states in its Vaughn index that both documents "consist[] of a work tasking within the Intelligence Community on a classified subject matter" and "would reveal an intelligence sources and methods [sic] and would therefore compromise the intelligence information collection mission effectiveness of the intelligence community." See Supp. Decl. of Alesia Y. Williams (Nov. 8, 2012) ("Second Williams Decl.") Ex. A at 18, 24, No. 11-445, ECF No. 35-1.
Upon consideration of the sworn declarations and accompanying Vaughn indices provided by the CIA and DIA, the Court is satisfied that both agencies have provided "a plausible assertion that information is properly classified." See Morley, 508 F.3d at 1124. It is reasonably clear from the materials provided by both agencies that the information withheld pursuant to Exemption 1 is properly classified because it would compromise important intelligence-gathering activities if it were disclosed. As to the CIA, the plaintiff concedes that "[t]o the extent the withheld information" contains (1) "acronyms which disclose the CIA's involvement in geographic locations and intelligence operations not officially acknowledged," and (2)
The Court disagrees. The plaintiff is reading the CIA's declaration and Vaughn index in isolation, rather than reading both documents together. Although the CIA's Vaughn index only states, for example, that information was withheld because it "contains classified information disclosing intelligence sources and methods," see, e.g., Third Lutz Decl. Ex. K pt. 1, at 109, No. 11-445, ECF No. 29-2, the CIA's declaration explains in much more detail what is meant by "intelligence sources and methods" or "intelligence activities," see Third Lutz Decl. ¶¶ 29-30. Hence, reading all of the CIA's materials together, the CIA has plausibly established that the information withheld contains information about intelligence-gathering activities, and given that conclusion, the plaintiff appears to concede that the CIA's Exemption 1 withholdings are entitled to summary judgment. See Pl.'s First 445 Opp'n at 6 ("To the extent the withheld information falls within one of these two criteria, NSC does not challenge CIA's withholdings under Exemption (b)(1).").
The same is true of the DIA's declaration, though the DIA's declaration provides less detail about the nature of the classified information that was withheld. As discussed above, the DIA's Vaughn index states that each of the two documents withheld under Exemption 1 are "document[s] consist[ing] of a work tasking within the Intelligence Community on a classified subject matter," which "would reveal ... intelligence sources and methods and would therefore compromise the intelligence information collection mission effectiveness of the intelligence community." Second Williams Decl. Ex. A at 18, 24. This is undoubtedly "something more than a parroting of the statutory standards." See Pl.'s First 445 Opp'n at 9. Although many details of these two documents remain unknown, the DIA's declaration plausibly establishes that the withheld information relates to sensitive operations within the Intelligence Community, the substance of which is properly classified in the interest of national security. That is sufficient to grant summary judgment. See Morley, 508 F.3d at 1124.
The plaintiff asserts that "something more" is required to warrant summary judgment under FOIA Exemption 1, and suggests two specific pieces of information in this regard: (1) "the date of classification of each document," and (2) "the person who classified it." Pl.'s First 445 Opp'n at 9. The plaintiff's reason for demanding this information is that it is necessary "to ensure that the information was classified in accordance with Executive Order 13526." Id. The Court construes the plaintiff to assert that the CIA and DIA have not complied with the procedural requirements of Executive Order 13,526, and in particular § 1.7(d) of that Executive Order. That provision states that information sought through a FOIA request may be classified after the request is submitted, but "only if such classification ... is accomplished on a document-by-document basis with the personal participation or under the direction of the agency head, the deputy agency head, or the senior agency official." Exec. Order 13,526 § 1.7(d).
At the outset, Executive Order 13,526 does not require that a classifying authority indicate when information is
The crux of the plaintiff's some-what veiled procedural argument is that the CIA and the DIA were required to provide the date of classification and the identity of the classifying authority in order to ensure that those agencies complied with § 1.7(d). Section 1.7(d), however, only applies when information is "classified or reclassified after an agency has received a request for it under the [FOIA]" or other similar statutes. See Exec. Order 13,526 § 1.7(d). The plaintiff essentially argues that it is the agency's burden under FOIA Exemption 1 to establish affirmatively in every instance whether information was classified before or after a FOIA request for that information was submitted.
The Court disagrees. As the Court has previously held, "an agency need only satisfy the requirements of Executive Order § 1.1(a) to classify information properly for purposes of FOIA Exemption 1." Mobley, 924 F.Supp.2d at 50 (collecting cases). If the agency's release or other representations suggest that information may have been classified after the relevant FOIA request was submitted, the agency has the burden of coming forward with evidence to establish either (1) the information was classified prior to the FOIA request; or (2) the agency satisfied the requirements of § 1.7(d). See, e.g., TREA Senior Citizens League v. U.S. Dep't of State, 923 F.Supp.2d 55, 63-64 (D.D.C.2013) (agency required to demonstrate compliance with § 1.7(d) where agency declaration stated that information "`was originally UNCLASSIFIED,' but `is currently classified CONFIDENTIAL'"). It is the plaintiff's initial burden, however, to raise a genuine factual question regarding whether information was classified after a FOIA request was submitted for that same information, and only then would the burden shift to the agency to establish that either (1) the information was classified prior to the FOIA request; or (2) the agency satisfied the requirements of § 1.7(d).
In this case, the plaintiff seeks to satisfy its initial burden by pointing to the fact that nine of the sixteen documents withheld under Exemption 1 by the CIA — all of which were responsive to the FOIA requests challenged in Counts One and Two in No. 11-445 — "have `Unclassified' written next to Classification in the Vaughn indices." See Pl.'s First 445 Opp'n at 5 n. 6. According to the plaintiff, "[t]his suggests that the information was
Therefore, with respect to information withheld under Exemption 1, the Court grants summary judgment to the DIA on Count Five in No. 11-445, and the Court also grants summary judgment to the CIA on Counts Three and Seven in No. 11-445. The Court denies summary judgment to the CIA, however, on Counts One and Two in No. 11-445 with respect to information withheld under Exemption 1. Specifically, the CIA has not satisfied its burden of demonstrating that nine records responsive to the FOIA requests at issue in Counts One and Two were properly classified, as discussed above.
The plaintiff also challenges the CIA's decision to withhold dozens of article titles from documents that were responsive to the plaintiff's May 12, 2010 FOIA request for "all Tables of Contents (`TOCs') from the [CIA] in-house journal Studies in Intelligence." See Second Lutz Decl. Ex. A at 1. The plaintiff's argument in this regard is two-fold. First, the plaintiff argues that the "CIA has exhibited the `general sloppiness' of its FOIA review process in several ways," and therefore the plaintiff believes that "the Court should not afford substantial weight to the assertions made in the Lutz Declaration." See Pl.'s First 443 Opp'n at 6, 11. Second, the plaintiff makes essentially the same argument it made in No. 11-445: the CIA is not entitled to summary judgment "because CIA's Vaughn index entries consist generally of nothing more informative than a parroting of the statutory standard." See id. at 11-12. With regard to both arguments, the plaintiff points to several pieces of information that the CIA withheld from disclosure, which are publicly available. See id. at 6 ("NSC has identified no less than eighty-six pieces of information withheld by CIA which have been officially disclosed elsewhere."); id. at 12 (pointing to the "banal and generic" nature of "officially disclosed information ... which was withheld under Exemption (b)(1)").
As to the first argument, the Court agrees with the CIA that the plaintiff's argument is "based on the faulty premise that agencies are required to exhaustively search public sources to determine
The plaintiff's second argument does not fare any better. At the outset, the Court notes one point of confusion regarding the plaintiff's challenge with respect to the information withheld by the CIA under Exemption 1. As discussed above, the plaintiff points to dozens of pieces of information — including some article titles — that were withheld by the CIA under Exemption 1, but which are also publicly available. See Pl.'s First 443 Opp'n at 6-10, 12-13. It is unclear, however, whether the plaintiff seeks an order from the Court directing the CIA to provide copies of this publicly available information to the plaintiff in connection with its FOIA request. The CIA appears to indicate that if any information was released through a "form of official public disclosure," the CIA "released the identical information" to the
The CIA justifies its withholding of information under FOIA Exemption 1 by stating, inter alia, that "the documents at issue implicate intelligence activities." See Second Lutz Decl. ¶ 28. Specifically, "the withheld information would reveal the Agency's presence in certain foreign countries, the location of certain covert operations, intelligence collection techniques, and clandestine relationships with certain foreign governments." Id. Unsurprisingly, the CIA avers that unauthorized disclosure of this information "could reasonably be expected to result in damage or serious damage to the national security." Id. The CIA's declarant also goes on to describe in more detail the nature of "intelligence activities" and "foreign relations and activities" and why the release of information about these activities would harm the national security of the United States. See id. ¶¶ 30-34.
Despite the CIA's explanation regarding the classified information that it withheld under Exemption 1, the plaintiff complains that "the Court has no way of knowing which of the withheld information actually meets the criteria for classification, because CIA's Vaughn index entries consist generally of nothing more informative than a parroting of the statutory standard." See Pl.'s First 443 Opp'n at 11-12. Once again, however, the plaintiff narrowly focuses its attention on the CIA's Vaughn index in isolation, without reading the Vaughn index in conjunction with the CIA's declaration. Reading the two documents together, the CIA has clearly established that the article titles it withheld under FOIA Exemption 1 plausibly fall within that exemption.
The plaintiff attempts to undercut this conclusion by pointing to four examples of Studies in Intelligence article titles that were withheld by the CIA under Exemption 1 but that are also publicly available. See Pl.'s First 443 Opp'n at 12. The plaintiff notes that these are "banal and generic titles," which the plaintiff claims "further demonstrate[es] the lack of weight that should be given to CIA's assertions." Id. Once again, the Court disagrees. The fact that certain titles may appear to a lay person as "generic" or "banal" has no bearing on whether the information was properly classified. It is well understood in this Circuit that "the judiciary is in an extremely poor position to second-guess the executive's judgment in th[e] area of national security." Ctr. for Nat'l Sec. Studies, 331 F.3d at 928. Furthermore, this Circuit has recognized that "[m]inor details of intelligence information may reveal more information than their apparent insignificance suggests because, `much like a piece of jigsaw puzzle, each detail may aid in piecing together other bits of information, even when the individual piece is not of obvious importance in itself.'" Larson, 565 F.3d at 864 (quoting Gardels v.
In one final attempt to avoid summary judgment, the plaintiff raises anew the argument, discussed above, that the CIA is required to demonstrate compliance with § 1.7(d) of Executive Order 13,526. See Pl.'s First 443 Opp'n at 13-14; see also supra Part III.E.1(a). This time, the plaintiff argues that the "CIA should be required to explain how its statement to the Court that its declaration only describes the classification status of this information in December 2011 can be reconciled with the plain language of the Lutz Declaration, signed 8 August 2012, which states in the present tense, "I have determined that ... this information is currently and properly classified.'" Pl.'s First 443 Opp'n at 14 (emphasis in original) (citation omitted). The first CIA statement referenced by the plaintiff actually said that "[i]nformation that was properly classified and withheld from the CIA's FOIA production in December 2011, may no longer be classified." See Joint Status Report at 2. This is not the same as saying the CIA's declaration "only describes the classification status of this information in December 2011," as the plaintiff claims. See Pl.'s First 443 Opp'n at 14 (emphasis omitted). The fact that information that was withheld as classified in December 2011 "may no longer be classified," see Joint Status Report at 2 (emphasis added), is not inconsistent with the statement that such information currently remains classified. The plaintiff has thus failed to raise a genuine factual question regarding whether the article titles withheld by the CIA were classified after a FOIA request was submitted for them, and therefore the CIA carries no burden to demonstrate its compliance with § 1.7(d) of Executive Order 13,5256. Therefore, the Court grants summary judgment, in part, to the CIA on Count Three in No. 11-443 with respect to the information withheld by the agency under FOIA Exemption 1.
The Court denies summary judgment, in part, however, with respect to a single document withheld in part by the CIA under Exemption 1. That document was located and released in part by the CIA on November 15, 2012, when the CIA filed its reply brief in No. 11-443. See Fourth Lutz Decl. ¶ 11. The only information provided by the CIA about this document is that it is "a two-page classified TOC from volume 53 (number 2)" of Studies in Intelligence. See id. The plaintiff has clarified that it challenges these Exemption 1 redactions made by the CIA. See Notice of Clarification at 1, No. 11-443, ECF No. 60. The CIA has not provided sufficient information about this document to satisfy its burden under the FOIA, and therefore the CIA will be required to submit a further supplemental affidavit to establish that the portions of this document withheld under Exemption 1 "are in fact properly classified." See 5 U.S.C. § 551(b)(1).
In sum, with respect to information withheld pursuant to Exemption 1, the Court grants summary judgment to the DIA on Count Five in No. 11-445, and to the CIA on Counts Three and Seven in No. 11-445. The Court grants in part and denies in part summary judgment to the CIA on Counts One and Two in No. 11-445 and on Count One in No. 11-443. With respect to Counts One and Two in No. 11-445, the Court denies summary judgment to the CIA as to the withholding of nine documents labeled with Bates numbers: C05366473, C01499710, C05403192, C05403194, C05403197, C05403198, C05403199, C05403203 and C05549838. The Court grants summary judgment to the CIA on Counts One and Two in No.
The CIA withheld thirteen documents in full under FOIA Exemption 2.
The Supreme Court in Milner held that the phrase "personnel rules and practices" in Exemption 2 refers to an agency's "rules and practices dealing with employee relations or human resources." Milner, 131 S.Ct. at 1265. Without attempting to "formulate a comprehensive list," the Supreme Court held that "all the rules and practices referenced in Exemption 2 share a critical feature: They concern the conditions of employment in federal agencies — such matters as hiring and firing, work rules and discipline, compensation and benefits." Id. The Supreme Court in Milner also specifically considered the government's argument that Exemption 2 "`encompasses records concerning an agency's
The Supreme Court's guidance in Milner is crystal clear regarding the scope of Exemption 2, and it is equally clear, under Milner, that Exemption 2 does not apply to the "internal training documents" withheld by the CIA. See Third Lutz Decl. ¶ 31. These documents, which "contain[] the procedures and guidelines utilized by CIA officers in processing FOIA and Privacy Act requests," id., are not human resources documents. Instead, they are the very "records concerning an agency's internal rules and practices for its personnel to follow in the discharge of their governmental functions," which the Supreme Court specifically excluded from the scope of Exemption 2. See Milner, 131 S.Ct. at 1269. As a result, the Court will deny summary judgment to the CIA on Count Seven in No. 11-445, regarding the agency's decision to withhold thirteen documents under FOIA Exemption 2.
In sum, the Court denies summary judgment to the CIA on Count Seven in No. 11-445, regarding the agency's decision to withhold thirteen documents under FOIA Exemption 2. These documents are labeled in the CIA's Vaughn index as: C05520233, C05520227, C05520231, C05520236, C05520235, C05520226, C05520181, C05520232, C05520213, C05520218, C05520223, C05520228, and C05520234.
Next, the plaintiff challenges the withholding of several hundred records by the CIA, DIA, and ODNI, in whole or in part, under FOIA Exemption 3.
The plaintiff challenges the CIA's withholding of over 300 responsive records, in whole or in part, under FOIA Exemption 3.
The CIA has invoked § 403g and Exemption 3 with respect to seven general categories of information: (1) "internal templates utilized by the [CIA] in tasking FOIA requests," Third Lutz Decl. ¶ 34; (2) "internal rules, policies and procedures governing FOIA processing including classification, referrals, coordinations, and fees," id.; (3) "administrative routing data and file paths," id.; (4) "organizational information revealing CIA's internal system of decentralized information management," id.; (5) "employee names and personal identifiers, including employee signatures, numbers, and initials," id.; (6) "[i]nternal information concerning ways in which CIA is able to store and retrieve information," First Lutz Decl. Ex. DD at 137, 142, No. 11-444, ECF No. 20-9; and (7) "information about the CIA's core functions," including "intelligence activities, intelligence sources and methods, and the collection, analysis, and dissemination of foreign intelligence," Second Lutz Decl. ¶ 36. The plaintiff concedes that categories (3) and (5) above fall within the scope of § 403g, see Pl.'s First 445 Opp'n at 11; Pl.'s First 444 Opp'n at 30, but challenges the other five categories of information as being outside § 403g's scope.
At the outset, one thing is clear: 50 U.S.C. § 403g is "precisely the type of statute[] comprehended by exemption (b)(3)." Weissman v. CIA, 565 F.2d 692, 694 (D.C.Cir.1977). The exact reach of § 403g, however, remains shrouded in some uncertainty. The clear purpose of § 403g is "further to implement [50 U.S.C. § 403-1(i) ] that the Director of National Intelligence shall be responsible for protecting intelligence sources and methods from unauthorized disclosure." See 50 U.S.C. § 403g. Although the D.C. Circuit has held that "the CIA is not required under section 403g to make an independent showing of a nexus between the withholding of personnel data and the security of foreign intelligence activities or the protection of intelligence sources and methods" in order to withhold information under Exemption 3, see Baker v. CIA, 580 F.2d 664, 669 (D.C.Cir.1978), the two provisions — § 403-1(i) and § 403g — are often invoked together. In the instant case, however, the CIA solely invokes § 403g as a basis to withhold responsive information under Exemption 3.
In one of its first decisions to interpret the scope of § 403g in the context of Exemption 3, the D.C. Circuit delineated an outer limit: § 403g does not "allow[] the [CIA] to refuse to provide any information at all about anything it does." Phillippi v. CIA, 546 F.2d 1009, 1015 n. 14 (D.C.Cir.1976). In other words, § 403g does not "accord the [CIA] a complete exemption from the FOIA." Id. One other consistent limit applied to § 403g by the D.C. Circuit is that the provision applies only to "information about [the CIA's] internal structure." Id.; accord Larson, 565 F.3d at 865 n. 2 (noting "the applicability of [§ 403g] to withhold internal CIA organizational data"); Linder v. Dep't of Defense, 133 F.3d 17, 25 (D.C.Cir.1998) (stating that § 403g applies to "information concerning the [CIA's] personnel"); Baker v. CIA, 580 F.2d 664, 670 (D.C.Cir.1978) ("[S]ection 403g creates a very narrow and explicit exception to the requirements of the FOIA. Only the specific information on the CIA's personnel and internal structure that is listed in the statute will obtain protection from disclosure."). The thrust of these cases is that § 403, standing alone, only protects "information on the CIA's personnel and internal structure," see Baker, 580 F.2d at 670, such as the names of personnel, the titles and salaries of personnel, or how personnel are organized within the CIA.
It is this latter interpretive leap that renders the CIA's proposed construction of § 403g inappropriately broad. The D.C. Circuit has long held that § 403g is a "very narrow and explicit exception," see Baker, 580 F.2d at 670, yet the CIA's proposed construction of § 403g would come dangerously close to exempting from disclosure "any information at all about anything [the CIA] does," see Phillippi, 546 F.2d at 1015 n. 14. It would be hard to imagine "anything [the CIA] does," see id., that does not somehow "relate[] to the internal structure, organization, [or] functions of the CIA," see Def.'s First 444 Reply at 16. Indeed, the term "functions" in § 403g would become particularly broad under the CIA's proposed construction because the CIA's functions would encompass any kind of activity appropriately carried out by the CIA. See, e.g., Black's Law Dictionary 742 (9th ed. 2009) (defining "function" as "[a]ctivity that is appropriate to a particular business or profession"); Webster's Third New Int'l Dictionary 920 (1981) (defining "function" as "the action for which a person or thing is specially fitted, used, or responsible or for which a thing exists").
The CIA appears to recognize the breadth of its proposed interpretation in this regard, contending in multiple places that "it is not clear that there is any practical difference between the organization and functions of CIA personnel and those of the Agency" since "the CIA is composed of and acts entirely through its employees." See Def.'s First 443 Reply at 9; see also Def.'s First 445 Reply at 7 ("The CIA is composed of and functions entirely through its personnel."). This perspective, however, "strip[s] the word `personnel' of any real meaning." See Milner, 131 S.Ct. at 1269. If "personnel" really just means "the Agency," then § 403g would essentially apply to "any information at all about anything [the CIA] does," see Phillippi, 546 F.2d at 1015 n. 14, in contravention of the D.C. Circuit's limitation on that provision's scope. Cf. Milner, 131 S.Ct. at 1269 (observing that "[u]nder this interpretation, an agency's `internal personnel rules and practices' appears to mean all its internal rules and practices," and thus "[t]he modifier `personnel'... does no modifying work").
On this point, a distinction drawn by the Supreme Court in Milner is instructive. Although Milner dealt with Exemption 2, not Exemption 3, the scope of 50 U.S.C. § 403g is limited in a way similar
The breadth of the CIA's proposed interpretation is also underscored by the D.C. Circuit's decision in Hayden v. NSA, 608 F.2d 1381 (D.C.Cir.1979). In that case, the National Security Agency ("NSA") sought to withhold responsive records under FOIA Exemption 3 and Section 6 of the National Security Agency Act, Pub. L. No. 86-36, § 6(a), 73 Stat. 63, 64 (1959), 50 U.S.C. § 402 note. See Hayden, 608 F.2d at 1389-90. That provision provides that "nothing in this Act or any other law ... shall be construed to require the disclosure of the organization or any function of the National Security Agency, [or] any information with respect to the activities thereof." 73 Stat. at 64. The FOIA requester in Hayden argued that this provision of the NSA Act "should be applied for Exemption 3 purposes in the same manner as similar statutes which concern the [CIA]." Hayden, 608 F.2d at 1389-90. The Circuit rejected this analogy, stating that, in contrast to the CIA Act, the NSA Act "protects not only organizational matters... but also `any information with respect to the activities' of the NSA." Id. at 1390. The Circuit further stated that "[a]ny difference in FOIA Exemption 3 treatment of the CIA and NSA results necessarily from this difference in their respective exemption statutes." Id.
Hayden is apropos here because it highlights a material difference in language between the NSA Act and the CIA Act, which in turn illuminates Congress's intent to circumscribe the scope of the CIA Act. Although in Hayden the Circuit relied primarily on the NSA Act's language exempting from disclosure "any information with respect to the [NSA's] activities," see id. at 1390, another noticeable difference between the language of the two statutes is that the CIA Act exempts from disclosure "the organization, functions, names, official titles, salaries, or numbers of personnel employed by the Agency," 50 U.S.C. § 403g, while the NSA Act more broadly exempts from disclosure "the organization or any function of the [NSA]," 73 Stat. at 64. The CIA contends that the CIA Act exempts from disclosure, inter alia, "the `functions' of the CIA," Second Lutz Decl. ¶ 36, but the NSA Act demonstrates that when Congress intends for a disclosure exemption statute to sweep that broadly, the statute will explicitly exempt the functions of the agency, rather than simply the functions (or organization) of personnel employed by the agency.
The reasoning in the second case, Schoenman v. FBI, 841 F.Supp.2d 69 (D.D.C.2012), is similarly slim. The court in Schoenman interpreted § 403g to "require the protection of `intelligence sources and methods from unauthorized disclosure,'" see id. at 83, and although those are all words in § 403g, they are not the operative language of the statute. Rather, those words are included in § 403g solely to reference the National Security Act, 50 U.S.C. § 403-1(i). To the extent that the Schoenman court construed § 403g, rather than 50 U.S.C. § 403-1(i), broadly to protect the disclosure of "intelligence sources and methods," this Court does not find its reasoning persuasive.
Accordingly, the Court holds that certain specific categories of information withheld by the CIA in this case pursuant to § 403g clearly fall outside that provision's scope, including (1) internal templates utilized by the CIA in tasking FOIA requests, (2) internal rules, policies and
Shorn of the gratuitous addition of the words "internal" and "organizational," it appears that the information referred to in these categories is information about how the CIA manages, stores, and retrieves information. The CIA, however, does not explain how disclosure of this information would reveal "the organization, functions, names, official titles, salaries, or numbers of personnel employed by the Agency." 50 U.S.C. § 403g. It is undoubtedly true that managing, storing, and retrieving information is a function of some, if not all, CIA personnel, but, as discussed above, the CIA is attempting to augment the scope of § 403g by withholding information that merely relates to or concerns that function. The language of the statute simply does not support such a broad reading.
The CIA contends in its reply brief that "information about how the [CIA], or [CIA] personnel, store and retrieve information is clearly information about the [CIA's] internal structure." Def.'s First 444 Reply at 21. Although the D.C. Circuit has interpreted § 403g to encompass "information about [the CIA's] internal structure," see Phillippi, 546 F.2d at 1015 n. 14, later Circuit case law has clarified, in line with the statutory text, that "internal structure" refers to the structure or organization of personnel employed by the Agency, not the structure or organization of any aspect of the CIA,
Although this resolves the primary, underlying legal question at the heart of the plaintiff's challenge to the CIA's Exemption 3 withholding decisions, the plaintiff has also raised five other issues regarding the CIA's Exemption 3 withholding decisions. The Court will discuss each of these issues in turn.
First, and related to the immediately preceding discussion, in No. 11-443 the plaintiff levels the serious allegation that the CIA is invoking 50 U.S.C. § 403g not just incorrectly but also in "bad faith." See Pl.'s First 443 Opp'n at 5.
Second, the plaintiff contends that "the record demonstrates a general sloppiness in CIA's review process in this case" because the CIA has withheld "names of individuals not `employed by the [CIA]" under the CIA Act, 50 U.S.C. § 403g. See Pl.'s First 443 Opp'n at 10-11 (emphasis in original). Specifically, the plaintiff points to twelve instances of individual's names that were withheld under the CIA Act but who are not employees of the CIA, but rather are military, diplomatic, and academic personnel or employees of other agencies in the intelligence community. See id. at 10. The plaintiff asserts that these redactions indicate "general sloppiness" because "CIA may not invoke [50 U.S.C. § 403g] to withhold names of individuals not `employed by the Agency.'" Id. at 10-11. The CIA responds that the plaintiff "has not cited to even one case in support of its claim that the CIA Act does not allow the Agency to protect the names of individuals who perform services for the CIA — such as authoring and publishing articles in the CIA's internal journal — even if those individuals are employed by other entities." Def.'s First 443 Reply at 11.
This issue is not as clear-cut as the language of the statute might indicate or as the plaintiff appears to believe. The D.C. Circuit has held that the CIA is permitted to withhold "the names of attorneys retained for covert CIA activities and legal fees paid to them." Halperin v. CIA, 629 F.2d 144, 147-51 (D.C.Cir.1980). In so holding, the Circuit interpreted the phrase "personnel employed by the agency" to include "the services of persons affiliated with the Agency only temporarily," such as "the services of private attorneys needed from time to time in connection with clandestine CIA activities." Id. at 151. The Circuit held that "congressional intent to protect `the confidential nature of the Agency's functions' leaves no room for a fine and formalistic distinction between functions performed by CIA staff attorneys operating under cover and functions performed by private attorneys pursuant to contract," and thus § 403g contemplated "temporarily affiliated personnel." Id. Likewise, the Circuit held that the term "salaries ... [of] personnel employed by the Agency" includes more than "only payments to regularly employed CIA staff personnel." Id. Based on the D.C. Circuit's holding in Halperin, it may be that the CIA is entitled to withhold the names of individuals who author and publish articles in the agency's internal journal, since they appear to be "temporarily affiliated personnel." See id. The answer to that question remains unclear, and the Court need not decide it here.
Third, although the plaintiff did not originally challenge the withholding of "administrative routing information" with respect to Count Seventeen in No. 11-444, the plaintiff contended in its opposition brief that, "given the sheer size of the redacted blocks, it seems unlikely that they consist solely of administrative routing information." Pl.'s First 444 Opp'n at 30 (emphasis in original). In this regard, the plaintiff suggested to the Court that the CIA had withheld certain other information in bad faith under the auspices of withholding administrative routing information. See id. at 31. The CIA called this contention "factually inaccurate" in its reply brief, but the CIA also admitted in its reply brief that it has adopted a very broad understanding of "administrative routing information." See Def.'s First 444 Reply at 16. According to the CIA, "administrative routing information" includes not only "notations indicating which offices and analysts ultimately received and processed [FOIA] requests," but also "recommendations from FOIA analysts and attorneys about how requests should be administratively processed and routed."
The Court agrees. As the above discussion makes plain, "administrative routing information" regarding FOIA requests only falls within § 403g if such information would reveal something about the CIA's personnel or internal structure, e.g., the names or titles of employees handling or receiving FOIA requests and the organizational structure of personnel within CIA offices or components. Recommendations from FOIA analysts about how to process FOIA requests, however, are not solely administrative, personnel-related, or structural. Such recommendations are quite obviously substantive to the extent that they contain suggestions about what information to withhold and what information to disclose to the public. Certain details
Fourth, in discussing the CIA's Exemption 3 redactions with respect to Count Eighteen in No. 11-444, the plaintiff contends that the CIA also wrongfully redacted some responsive information as "non responsive." See Pl.'s First 444 Opp'n at 39. Essentially, the plaintiff complains that the CIA interpreted its request too narrowly. The Court has previously discussed the principles that apply in determining whether an agency properly interpreted the scope of a FOIA request. See supra Part III.E.4. The bottom line of those principles is that an agency "has a duty to construe a FOIA request liberally," Nation Magazine, 71 F.3d at 890, and is "bound to read it as drafted" not as "agency officials ... might wish it was drafted," Miller, 730 F.2d at 777. The FOIA request at issue in Count Eighteen in No. 11-444 sought "a copy of all [CIA] records pertaining to the search tools and indices available to the Office of Information Management Services (`IMS') for conducting searches of its own records in response to FOIA requests." First Lutz Decl. Ex. Q at 1. To clarify the scope of the request, the plaintiff specified two categories of records that would be responsive to the request: (1) "Records which describe the search tools and indices," and (2) "The actual contents of the indices." Id. The CIA withheld the following information as non-responsive from two documents (C05665569 and C05665570): (a) "information relating to case management workflow, directorate level workflow, training available to CADRE users, and troubleshooting help with technical issues while using CADRE," and (b) "information relating to training and access to SMART2, creating a new job in SMART2, application of Records Control Schedules, and archiving capabilities." See First Lutz Decl. Ex. DD at 137, 141.
Keeping in mind the CIA's obligation to construe the plaintiff's FOIA request liberally, see Nation Magazine, 71 F.3d at 890, it appears that at least some of the information withheld as non-responsive is, in fact, responsive. Clearly, any record containing information about the capabilities of the search tools and indices in question would "describe" those search tools and indices, and thus would be responsive to the plaintiff's request. Similarly, any record containing information about how to use the search tools and indices in question (e.g., training materials for users) would also "describe" those search tools and indices.
The Court agrees with the CIA on this issue. First, although the plaintiff asserts that "it would be virtually impossible to use [a first name] to identify someone," see Pl.'s First 444 Opp'n at 30, the CIA is correct that the ability to identify a person by a first name alone depends on how common the first name is and whether the record provides other information that, in combination with a first name, would permit someone to identify the employee. Second, the plaintiff contends that the CIA Act was "not designed to be used to withhold such things as first names, nicknames, pseudonyms, or initials," Pl.'s First 444 Opp'n at 30,
In sum, the Court holds that the CIA's proposed construction of 50 U.S.C. § 403g is overly broad. As a result, the CIA has inappropriately withheld information under FOIA Exemption 3. Specifically, the following categories of information referred to by the CIA in its declarations
Some of the information in the above six categories, however, may in fact be properly exempt from disclosure under § 403g — a possibility that the plaintiff itself recognizes. See, e.g., Pl.'s First 445 Opp'n at 17 n. 13. The Court will therefore provide the CIA another opportunity to justify, consistent with this opinion, the agency's decision to withhold the information in the above six categories under § 403g and FOIA Exemption 3. In this regard, conclusory or generalized descriptions will not suffice. The CIA must specifically describe the withheld information and explain why it would reveal "the organization, functions, names, official titles, salaries, or numbers of personnel employed by the Agency." See 50 U.S.C. § 403g. The CIA is also directed to release to the plaintiff any information in documents C05665569 and C05665570 which describes how the search tools and indices available to IMS operate to the extent such information is not exempt from disclosure.
Next, the plaintiff challenges the DIA's decision to withhold responsive information under Exemption 3 by invoking the National Security Act, 50 U.S.C. § 403-1(i). See Pl.'s First 445 Opp'n at 17-22. The plaintiff argues that the DIA "lacks the authority to invoke the National Security Act on its own to withhold information not protected by 10 U.S.C. § 424." Id. at 17. The premise of this contention is that, although the National Security Act originally "vested the Director of Central Intelligence (`DCI') with the authority to protect `intelligence sources and methods," the act was amended in 2004. See id. This amendment, according to the plaintiff, "divest[ed] this authority from the DCI," and transferred the authority to the ODNI. See id. at 17-18. Thus, the plaintiff argues that "after 2004 the ODNI is the only agency authorized by statute to claim the National Security Act as a withholding statute, and any other agency seeking to invoke that statute to withhold records under Exemption (b)(3) must be
This challenge by the plaintiff is now moot, however, because the DIA "has decided to withdraw its assertions of Section 403-1(i)" since "the National Security Act was asserted in each instance as an alternative ground for withholding." See Defs.' First 445 Reply at 14.
Finally, the plaintiff challenges the ODNI's decision to withhold certain portions of email addresses of CIA and ODNI employees under the CIA Act. See Pl.'s First 445 Opp'n at 22-23. Although the plaintiff "does not challenge ODNI's invocation of the CIA Act to withhold names and full email addresses of CIA and ODNI employees," the plaintiff "ask[s] that the domains (i.e., that part after the `@' sign) of the email addresses be released." Id. at 22 (emphasis in original). The plaintiff contends that "[r]elease of enough data to determine the agency affiliations of the respective participants in these email chains — the only information deducible from such a release — will not violate the CIA Act." Id. at 22-23. The plaintiff likewise contends that "Exemption (b)(6) does not apply to the challenged ODNI withholdings." Id. at 23. In the interest of efficiency, the Court will discuss the plaintiff's arguments under both Exemption 3 and Exemption 6 in assessing the ODNI's withholding of domain name information from e-mail addresses.
The ODNI makes two responses to the plaintiff's Exemption 3 and Exemption 6 arguments. First, the ODNI argues that "NSC cannot cite to a single case in which a court has held that the CIA Act does not protect CIA and ODNI employees' full email addresses." Defs.' First 445 Reply at 17. Second, the ODNI argues that "NSC also fails to show why the full email addresses are not protected by Exemption (b)(6)." Id. At the outset, both of these arguments misperceive the allocation of the burden on the parties in the summary judgment context. As discussed above, when an agency's response to a FOIA request is to withhold responsive records, either in whole or in part, the agency "bears the burden of proving the applicability of claimed exemptions." ACLU/ DOD, 628 F.3d at 619. It is not the requester's burden to disprove the applicability of claimed exemptions, as the ODNI frames its opposition.
That said, the only case that the Court can find to address this question held that "[t]he CIA Act ... plainly protects ... employee names, titles, signatures and identification numbers; telephone numbers, fax numbers, e-mail addresses and street addresses; internal URLs; and other internal organizational information." James Madison Project v. CIA, 607 F.Supp.2d 109,
It is plausible, however, that even domain information could reveal information about the CIA's "internal structure." See Phillippi, 546 F.2d at 1015 n. 14. For example, e-mail domain information could reveal how personnel are organized within the CIA, and in that event such information would fall within the protection of 50 U.S.C. § 403g. The ODNI, however, does not advance this argument in attempting to justify its withholding of e-mail addresses. Additionally, the ODNI makes no attempt to argue or establish that e-mail domain information, as distinct from the rest of the information in employees' e-mail addresses "would constitute a clearly unwarranted invasion of personal privacy." See 5 U.S.C. § 552(b)(6). Therefore, the Court will deny summary judgment to the ODNI on Count Six in No 11-445 with respect to the withholding of e-mail domain information under Exemption 3 and/or Exemption 6 and will permit the agency to submit a supplementary declaration explaining why e-mail domain information is exempt from disclosure under either or both exemptions.
The plaintiff next challenges the withholding of information by the CIA, DOJ, DIA, and ODNI under FOIA Exemption 5. See Pl.'s First 445 Opp'n at 24-34; Pl.'s First 444 Opp'n at 31-35. FOIA Exemption 5 protects from disclosure "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency." 5 U.S.C. § 552(b)(5). To be properly withheld under Exemption 5, "a document must ... satisfy two conditions: its source must be a Government agency, and it must fall within the ambit of a privilege against discovery under judicial standards that would govern litigation against the agency that holds it." Dep't of Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 8, 121 S.Ct. 1060, 149 L.Ed.2d 87 (2001). The four defendant agencies listed above cited Exemption 5 to withhold information under the deliberative process privilege, and the attorney-client privilege, both of which are incorporated into Exemption 5. See, e.g., Loving v. Dep't of Def., 550 F.3d 32, 37 (D.C.Cir.2008). The DIA has also apparently invoked the attorney work-product doctrine in its sworn declaration, though the DIA did not advance this argument in its summary judgment motion. Compare Williams Decl. ¶ 24 ("DIA asserted Exemption 5 to withhold this information pursuant to the attorney client privilege and/or the attorney-work product privilege ...."), with Defs.' First 445 Mem. at 25 ("DIA has withheld information on the basis of the deliberative process and attorney-client privileges."). The Court will first discuss the plaintiff's challenges regarding material withheld under the deliberative-process privilege before turning to the attorney-client privilege and the attorney work-product doctrine.
"The deliberative process privilege protects `documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.'" Loving, 550 F.3d at 38 (quoting Klamath Water, 532 U.S. at 8, 121 S.Ct. 1060). "To qualify for Exemption 5 protection under the deliberative process privilege, `an agency's materials must be both predecisional and a part of the deliberative process.'" Nat'l Inst. of Military Justice v. U.S. Dep't of Def., 512 F.3d 677, 680 n. 4 (D.C.Cir.2008) (quoting Formaldehyde Inst. v. Dep't of Health & Human Servs., 889 F.2d 1118, 1121 (D.C.Cir.1989)). The Supreme Court has acknowledged that "[t]he deliberative process privilege rests on the obvious realization that officials will not communicate candidly among themselves if each remark is a potential item of discovery and front page news," and the privilege's "object is to enhance `the quality of agency decisions,' by protecting open and frank discussion among those who make them within the Government." Klamath Water, 532 U.S. at 8-9, 121 S.Ct. 1060 (citations omitted); see also Tax Analysts v. IRS, 117 F.3d 607, 617 (D.C.Cir.1997) ("[T]he deliberative process privilege ... reflect[s] the legislative judgment that `the quality of administrative decisionmaking would be seriously undermined if agencies were forced to operate in a fishbowl because the full and frank exchange of ideas on legal or policy matters would be impossible.'") (quoting Mead Data Cent., Inc. v. U.S. Dep't of Air Force, 566 F.2d 242, 256 (D.C.Cir.1977) (internal quotation marks omitted)).
"The need to describe each withheld document when Exemption 5 is at issue is particularly acute because `the deliberative process privilege is so dependent upon the individual document and the role it plays in the administrative process.'" Animal Legal Def. Fund, Inc. v. Dep't of Air Force, 44 F.Supp.2d 295, 299 (D.D.C. 1999) (quoting Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 867 (D.C.Cir.1980)). In other words, unlike other exemptions where the agency declaration and Vaughn index may be read in conjunction to provide an adequate justification for application of an exemption to a class or category of records, to sustain its burden of showing that records were properly withheld under Exemption 5, an agency must provide in its declaration and Vaughn index precisely tailored explanations for each withheld record at issue. "The agency must establish `what deliberative process is involved, and the role played by the documents in issue in the course of that process.'" Senate of P.R. v. U.S. Dep't of Justice, 823 F.2d 574, 585-86 (D.C.Cir.1987) (quoting Coastal States, 617 F.2d at 868). "In addition to explaining the `function and significance of the document[s] in the agency's decisionmaking process,'" the agency "must describe `the nature of the decisionmaking authority vested in the office or person issuing the disputed document[s], and the positions in the chain of command of the parties to the documents.'" Elec. Frontier Found. v. U.S. Dep't of Justice ("EFF"), 826 F.Supp.2d 157, 168 (D.D.C.2011) (quoting Arthur Andersen & Co. v. IRS, 679 F.2d 254, 258 (D.C.Cir.1982)).
The plaintiff challenges the CIA's withholding of 310 responsive records,
The plaintiff's first argument alone succeeds in defeating summary judgment for the CIA with respect to the deliberative-process privilege. Unlike some other FOIA Exemptions (e.g., Exemption 1), when an agency claims the deliberative-process privilege under Exemption 5, the factual context surrounding the withheld document is critical. As stated above, "[t]he need to describe each withheld document when Exemption 5 is at issue is particularly acute because `the deliberative process privilege is so dependent upon the individual document and the role it plays in the administrative process.'" Animal Legal Def. Fund, 44 F.Supp.2d at 299 (emphasis added) (quoting Coastal States, 617 F.2d at 867). At a minimum, the agency must provide three basic pieces of information in order for the deliberative-process privilege to apply: (1) the nature of the specific deliberative process involved, (2) the function and significance of the document in that process, and (3) the nature of the decisionmaking authority vested in the document's author and recipient. See, e.g., Senate of P.R., 823 F.2d at 585-86; Arthur Andersen, 679 F.2d at 257-58; Coastal States, 617 F.2d at 867-68. The Court will discuss each of these pieces of information in turn with respect to the CIA.
As to the first piece of information, in No. 11-445, the CIA states generally in its declaration that "[t]he deliberative information contained in these documents was solicited, received, or generated as part of the process by which the [CIA] comes to a final determination in response to FOIA requests." Third Lutz Decl. ¶ 39. The individual entries in the CIA's Vaughn index, however, do not elaborate on the "specific deliberative process to which the withheld [document] contributed." See
As to the second piece of information regarding the role played by the document in the deliberative process, in No. 11-445 the CIA lists four kinds of information that it withheld as deliberative and predecisional, which include: (1) "recommendations on withholdings and exemptions to be applied to particular requests," (2) "preliminary search results generated in response to a FOIA or Privacy Act tasking," (3) "the status of requests in processing," and (4) "inter-agency memoranda containing the CIA's proposals and recommendations." Third Lutz Decl. ¶ 39. The CIA provides similarly generic descriptions in No. 11-444, stating only that information "includes FOIA analysts' recommendation [sic] about how to process this request" and "suggests a course of action relating to this FOIA request." See First Lutz Decl. Ex. DD at 17, 130. These descriptions are too vague for the Court to discern "the `function and significance of the documents in the agency's decisionmaking process.'" Arthur Andersen, 679 F.2d at 258 (quoting Taxation with Representation Fund v. IRS, 646 F.2d 666, 678 (D.C.Cir.1981)). Indeed, the CIA does not describe in any amount of detail how "the process by which the [CIA] comes to a final determination in response to FOIA requests" works and how these withheld pieces of information fit into that process. See Third Lutz Decl. ¶ 39. Taking "preliminary search results" as just one example: Are "preliminary search results" generated by a lower-level analyst and then transmitted to a higher-level analyst for approval to perform further searching? How does the agency use such "preliminary search results" in making decisions about responding to FOIA requests? Do "preliminary search results" contribute to decisions about the appropriate scope of a search, the burdens triggered by the search, or whether information is responsive or subject to withholding?
Finally, the overwhelming majority of the CIA's Vaughn entries provide no information whatsoever regarding "the nature of the decisionmaking authority vested in the office or person issuing the disputed documents" or "the positions in the chain of command of the parties to the documents" withheld under the deliberative process privilege. See Arthur Andersen, 679 F.2d at 258 (internal quotation marks omitted); see also, e.g., Third Lutz Decl. Ex. K pt. 1, at 3, 12, 19, 106, 114; Third Lutz Decl. Ex. K pt. 3, at 1-19, 25-26, 30-31, 65-66. The CIA does provide this information about the two documents withheld in part under the deliberative-process privilege in No. 11-444, see First Lutz Decl. Ex. DD at 17, 141, but the descriptions of the decisionmaking authority are generic, stating that the withheld information is a "recommendation from the [FOIA] analyst to his/her supervisor," id. at 17, and a "recommendation from the analysts to senior reviewers," id. at 141. The CIA, however, does not describe the decisionmaking authority of the "supervisor" or "senior reviewers," such as whether these personnel had the authority to approve withholding decisions, scope-of-search decisions, or other decisions "about how to process this [FOIA] request," see id. at 17, 141. Without this information made explicit, the Court is unable to conclude that these communications were both deliberative and pre-decisional.
The submissions of the DIA, ODNI, and DOJ suffer from similar deficiencies. For starters, neither the ODNI nor the DOJ submitted a Vaughn index that describes the factual context of each withheld document. The ODNI states in its declaration that "[i]nformation was withheld pursuant to FOIA Exemption 5 on 13 of the 34 pages released to the plaintiff," Hackett Decl. ¶ 24, and the ODNI attaches redacted versions of these thirty-four pages to its declaration, see Hackett Decl. Exs. C-D, No. 11-445, ECF No. 29-8. The ODNI's declaration, however, does not identify which of the thirty-four pages contains information withheld under Exemption 5, and only nine of the thirty-four redacted pages explicitly indicate (b)(5) as a basis for withholding information. The ODNI thus apparently leaves it to the Court to infer which portions of which of the thirty-four heavily redacted (and sometimes illegibly blurry) pages were withheld under Exemption 5. This sort of submission is utterly unhelpful to the Court in determining whether a FOIA exemption applies to particular portions of particular records, especially in the absence of a document-by-document Vaughn index that could explain the factual context of each withheld record.
Additionally, similar to the CIA, the ODNI provides only generic summaries of the documents withheld, stating that they "contain[] information that reflects the pre-decisional deliberations of ODNI employees on the proper handling of certain FOIA requests." See Hackett Decl. ¶ 27. In this regard, both the CIA and the ODNI consistently tack on conclusory labels like "internal," "deliberative," "candid," and "pre-decisional," see id.; Third Lutz Decl. ¶ 39; Third Lutz Decl. Ex. KK passim, but such "buzz-word adjectives" are no substitute for "a meaningful description of the factual context surrounding a document." See Muttitt v. Dep't of State, 926 F.Supp.2d 284, 306-07 (D.D.C. 2013). The same holds true for the DIA, which provides a generic description of withheld material in its declaration, see Second Williams Decl. ¶ 11 (stating that documents "involve detailed deliberations between elements of DIA and outside agencies about the appropriate FOIA responses"), and boilerplate labels in its Vaughn entries, see, e.g., Second Williams Decl. Ex. A at 1 (withholding letter that "contains comments and recommendations, and its content speaks to the deliberative process"). Finally, the DOJ's declaration is perhaps the most barebones of them all with regard to the deliberative process privilege, stating that the withheld documents "are deliberative because they ... aid [Executive Branch officials'] deliberations about whether to take certain actions in performing their duties or prerogatives" and "are pre-decisional because they were prepared for the consideration of those Executive Branch officials before they had decided whether to take such actions." Colborn Decl. ¶ 14. This kind of conclusory and circular description of withheld documents is woefully insufficient to meet the FOIA summary judgment standard.
Accordingly, these deficiencies in the submissions of the CIA, ODNI, DIA, and DOJ regarding their invocation of the deliberative-process privilege make it impossible for the Court to grant these agencies summary judgment on that issue. Accordingly, the Court concludes "`not that the documents are not exempt as a matter of law, but that the agenc[ies] ha[ve] failed to supply' in [their] Vaughn submissions `the minimal information necessary to make a determination' concerning applicability of the deliberative process privilege." EFF, 826 F.Supp.2d at 173 (quoting Coastal States, 617 F.2d at 861). To the extent that the CIA, ODNI, DIA, or DOJ withhold any documents, in whole or in part, under Exemption 5 solely on the basis of the deliberative-process privilege, the Court denies summary judgment to those agencies with respect to the withholding of those documents, or portions of documents, pursuant to Exemption 5.
The CIA, DIA, ODNI, and DOJ also invoke the attorney-client privilege to withhold certain information under Exemption 5. "The attorney-client privilege is the oldest of the privileges for confidential communications known to the common law." Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981). "Its purpose is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests
Beginning with the CIA's submissions, the CIA states in its declaration submitted in No. 11-445 that "[s]ome of the records for which information has been withheld pursuant to Exemption (b)(5) contain confidential communications between CIA staff and attorneys within the CIA's Office of General Counsel about the processing of certain FOIA requests." Third Lutz Decl. ¶ 37. The CIA also states in this declaration that "[t]hese communications relate to matters for which the attorneys provided legal advice, and were prepared with the joint expectation that they would be held in confidence." Id. In its declaration submitted in No. 11-444, the CIA declarant provides an almost identical statement. See First Lutz Decl. ¶ 79. Turning to the CIA's Vaughn indices, the index provided in No. 11-445 contains the repeated statement that the document in question "contains advice from legal counsel." See Third Lutz Decl. Ex. K pt. 3, at 151, 153; Third Lutz Decl. Ex. K pt. 4, at 1-4, 8, 25, 143; Third Lutz Decl. Ex. K pt. 5 at 10, 13, 26-28, 36-39, 42. The Vaughn index provided by the CIA in No. 11-444 parrots the same language contained in the CIA's declarations, stating for each withheld document that it "contains confidential communications between a CIA attorney and CIA officers relating to a matter for which the officers sought legal advice." See First Lutz Decl. Ex. DD at 54, 66, 102, 121.
The statements in the CIA's submissions are largely insufficient for the Court to conclude that the documents in question were sent "for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding." In re Grand Jury, 475 F.3d 1299, 1304 (D.C.Cir.2007) (internal quotation marks omitted). Specifically, there are three deficiencies in the CIA's submissions that prevent the Court from granting summary judgment regarding the majority of the CIA's invocations of the
Second, the CIA's declarations in Nos. 11-444 and 11-445 state that the information withheld under the attorney-client privilege "was prepared with the joint expectation of the attorneys and CIA staff that they would be held in confidence." First Lutz Decl. ¶ 79; see also Third Lutz Decl. ¶ 37. "The government," however, "must demonstrate confidentiality in fact, whatever its subjective intentions may have been." Am. Immigration Council v. U.S. Dep't of Homeland Sec., 950 F.Supp.2d 221, 243, No. 12-856, 2013 WL 3186061, at *18 (D.D.C. June 24, 2013) (citing In re Sealed Case, 737 F.2d at 100). The "subjective intentions" of confidentiality put forth by the CIA are therefore insufficient to establish "confidentiality in fact." Id.
The third and final deficiency manifests only in the CIA's submissions in No. 11-445. Twenty-three of the thirty-two documents withheld from release by the CIA under the attorney-client privilege in No. 11-445 were withheld in their entirety.
The three deficiencies described above preclude summary judgment to the CIA as to the invocation of the attorney-client privilege to withhold twenty-three documents in full in No. 11-445 as well as to withhold four documents in No. 11-444.
Accordingly, the Court will deny summary judgment to the CIA with regard to Count Seventeen in No. 11-444 and Counts One and Seven in No. 11-445, insofar as the CIA moved for summary judgment on those counts with respect to its Exemption 5 withholding decisions. Additionally, the Court will grant in part and deny in part summary judgment to the CIA with regard to Counts Two and Three in No. 11-445. The Court will grant summary judgment on these two counts with respect to the information redacted from nine documents under the attorney-client privilege,
As with the deliberative-process privilege, the submissions of the DIA and ODNI regarding the invocation of the attorney-client privilege mirror many of the same deficiencies contained in the CIA's submissions. Beginning with the DIA, that agency's Vaughn index repeats the exact same boilerplate language in each entry — often using identical boilerplate phrases twice in the same entry. See, e.g., Second Williams Decl. Ex. A at 1-4. Also, curiously, the DIA's Vaughn index does not reference the attorney-client privilege or any element of that privilege, but instead only references the attorney work-product doctrine. See, e.g., id. (stating that documents were "withheld... as ... attorney work product" because they were "prepared in anticipation or in response to civil litigation").
As to the ODNI, as discussed above, that agency did not submit a document-by-document Vaughn index, and therefore the Court can only reference the generally applicable statements contained in the agency's declaration to determine whether the attorney-client privilege properly applies to any of its Exemption 5 withholding decisions. The ODNI's declarant avers that the documents withheld under the attorney-client privilege and Exemption 5 "contain confidential communications between ODNI staff and an attorney in the ODNI's Office of General Counsel." Hackett Decl. ¶ 25. According to the ODNI's declarant, "[t]he staff of the [ODNI's Information Data and Management Group] routinely relies on OGC for legal advice on a wide variety of FOIA matters," and in the withheld communications, "IDMG's FOIA staff provides OGC with relevant information in order for OGC to evaluate and provide legal advice." Id. The ODNI's declarant further states that "[t]he information and advice was prepared with the joint expectation of the attorneys and IDMG staff that they would be held in confidence." Id. As discussed above, "[t]he government must demonstrate confidentiality in fact, whatever its subjective intentions may have been." Am. Immigration Council, 950 F.Supp.2d at 243, 2013 WL 3186061, at *18 (citing In re Sealed Case, 737 F.2d at 100). The Court thus cannot grant summary judgment on the grounds that ODNI personnel "expect[ed]" their communications to be held in confidence. Accordingly, the Court denies summary judgment to the ODNI on Count Six in No. 11-445 regarding its Exemption 5 withholding decisions.
Finally, as to the DOJ, the plaintiff does not seriously contend that the attorney-client privilege is inapplicable to the sixteen OLC opinions withheld under Exemption 5. Indeed, the Court concludes that the attorney-client privilege does apply to the sixteen OLC opinions because they "embody legal advice that was provided in confidence at the request of and to Executive Branch officials." Colborn Decl. ¶ 15. The DOJ's declarant explains that the OLC's "principal function" is to provide legal advice to the President and Executive agencies, id. ¶ 2, and "[a]lthough OLC publishes some opinions and makes discretionary releases of others, OLC legal advice is generally kept confidential," id. ¶ 3. It is clear from the DOJ's declaration that the primary purpose of these opinions was to convey legal advice to the Executive branch, and therefore so long as the communications were confidential, the attorney-client privilege applies to protect them from FOIA disclosure.
The plaintiff contends, however, that the DOJ should be foreclosed from invoking the attorney-client privilege as to at least five of the sixteen OLC opinions
The plaintiff contends that five of the withheld OLC opinions have been officially disclosed in the public domain. See Pl.'s First 445 Opp'n at 31-32. The plaintiff is only able to produce evidence that one of these sixteen opinions (Document 11, see Colborn Decl. Ex. G, No. 11-445, ECF No. 29-11) has been actually and officially disclosed in the public domain. That opinion is apparently contained in the National Archives in an unredacted form, see id. at 32, and the defendants "assume NSC is no longer challenging the withholding of" this opinion, Defs.' First 445 Reply at 21 n. 6.
The rest of the publicly available information cited by the plaintiff is comprised of references to or summaries of four other OLC opinions that were withheld by the DOJ in this case. See Pl.'s First 445 Opp'n at 32-33. As to the second of the OLC opinions (Document 3), the plaintiff cites meeting minutes from the Interagency Classification Review Committee ("ICRC"), which "record[] in great detail the summary [of an OLC opinion] ... as well as a recorded decision to implement the opinion." Id. at 32. These meeting minutes, which the plaintiff attaches as an exhibit to its summary judgment opposition, do contain a summary of a summary of Document 3, provided by then-OLC attorney Antonin Scalia at an ICRC meeting. See Pl.'s First 445 Opp'n Ex. K at 3-4, No. 11-445, ECF No. 33-11. These meeting minutes appear to convey the thrust of the legal advice provided by the
The D.C. Circuit's decisions on official acknowledgement under the FOIA require a requester to establish that "the information requested [is] as specific as the information previously released" and that "the information ... match[es] the information previously disclosed." See, e.g., Wolf, 473 F.3d at 378 (quoting Fitzgibbon, 911 F.2d at 765). Additionally, "voluntary disclosure of privileged material subject to the attorney-client privilege to unnecessary third parties in the attorney-client privilege context `waives the privilege, not only as to the specific communication disclosed but often as to all other communications relating to the same subject matter.'" In re Sealed Case, 121 F.3d 729, 741 (D.C.Cir.1997). With regard to Document 3, although the information disclosed in the public record about that opinion appears to reveal at least some of the legal opinion's conclusions, the plaintiff is unable to establish that "the information requested [is] as specific as the information previously released." See Wolf, 473 F.3d at 378. This is because "the information requested" was the OLC opinion itself, and not just a summary of certain conclusions contained in the opinion. Nevertheless, the public disclosure of at least a portion of the contents of Document 3 waives the attorney-client privilege as to that portion of the opinion, see In re Sealed Case, 121 F.3d at 741, and therefore the DOJ cannot assert attorney-client privilege to withhold it. Accordingly, the Court will direct the DOJ to disclose to the plaintiff those portions of Document 3 (a memorandum entitled "Applicability of User's Fee Statute to Mandatory Declassification Review," see Colborn Decl. Ex. G) that were disclosed in the meeting minutes submitted by the plaintiff.
As to the third of the five opinions (Document 4), the plaintiff has submitted "a cable from the U.S. Embassy in Tokyo to Washington, D.C.," which the plaintiff says "sum[s] up" the conclusions of Document 4. See Pl.'s First 445 Opp'n at 32. The plaintiff also asserts that this cable contains "an express citation to the opinion." Id. The cable submitted by the plaintiff cites to an "unclassified telegram" dated December 23, 1975 from the Drug Enforcement Administration ("DEA") headquarters, not to an OLC opinion. See Pl.'s First 445 Opp'n Ex. L at 1, No. 11-445, ECF No. 33-12. The cable goes on to quote from this telegram, summarizing "the opinion of Mary Lawton" regarding the status of government employees assigned to diplomatic or consular missions for purposes of the Privacy Act. See id. It may very well be that this cable is indirectly summarizing Document 4, which was a legal opinion authored by the OLC on May 6, 1975. See Colborn Decl. Ex. G. The cable does not, however, include "an express citation to the opinion," as the plaintiff asserts, Pl.'s First 445 Opp'n at 32, and the only connection to the OLC is the cable's reference to "the opinion of Mary Lawton, Deputy Asst Attorney General, Office of Legal Counsel," Pl.'s First 445 Opp'n Ex. L at 1. This sparse information is insufficient for the Court to conclude that the cable submitted by the plaintiff discloses any of the contents of Document 4 in particular, and therefore the Court cannot conclude that Document
Next, as to the fourth of the OLC opinions (Document 13), the plaintiff submits a subsequent, publicly available OLC opinion that "directly reference[s]" a conclusion contained in Document 13. The publicly available OLC opinion submitted by the plaintiff specifically cites Document 13, stating "[w]e ... opined in 1982 that advisory committee documents are available through FOIA requests made to the supervising agency and that the advisory committee must cooperate." Pl.'s First 445 Opp'n Ex. M at 3, No. 11-445, ECF No. 33-13. This brief discussion of Document 13 clearly discloses at least one conclusion of that OLC opinion, and therefore the DOJ once again cannot rely on the attorney-client privilege to withhold that disclosed material. See, e.g., In re Sealed Case, 121 F.3d at 741. The Court will therefore direct the DOJ to disclose to the plaintiff the specific portion or portions of Document 13 which "opine[] ... that advisory committee documents are available through FOIA requests made to the supervising agency and that the advisory committee must cooperate." See Pl.'s First 445 Opp'n Ex. M at 3.
Finally, as to the fifth OLC opinion challenged by the plaintiff (Document 2), the plaintiff submits "systematic declassification review guidelines" promulgated by the Information Security Oversight Office ("ISOO"), "pertaining to, among other things, foreign government information," which is the general subject of Document 2. See Pl.'s First 445 Opp'n at 33. The plaintiff has also submitted a letter from an OLC official providing the ISOO "with [OLC's] full concurrence concerning these guidelines." Pl.'s First 445 Opp'n Ex. N at 9, No. 11-445, ECF No. 33-14. The plaintiff contends that "OLC's concurrence suggest that these guidelines relied in part on the conclusions of Doc[ument] 2." Pl.'s First 445 Opp'n at 33 n. 26. The plaintiff's argument attempting to connect the ISOO's guidelines with Document 2, however, is a stretch to say the least. Although it is possible that the ISOO guidance submitted by the plaintiff may have relied upon some or all of the legal advice contained in Document 2, that conclusion is far from clear. Even had the ISOO relied on the OLC's legal advice in Document 2, the disclosure of guidelines based on legal advice does not constitute a disclosure of the legal advice itself. The connection is simply too attenuated to constitute either an official acknowledgement or a waiver of the attorney-client privilege. The Court therefore concludes that the plaintiff's thin evidence does not establish any official disclosure of the contents of Document 2 or any waiver of the attorney-client privilege as applied to that document, and therefore the DOJ was entitled to withhold Document 2 under the attorney-client privilege.
In summary, the Court grants summary judgment to the DOJ on Count Eight in No. 11-445 as to thirteen of the sixteen withheld OLC opinions in their entirety (Documents 1-2, 4-10, 12, 14-16, see Colborn Decl. Ex. G). The Court concludes that the plaintiff's challenge to Document 11 is now moot because the plaintiff has obtained an unredacted copy of that opinion and has not asked the Court to direct the DOJ to produce a further copy pursuant to the plaintiff's FOIA request. The Court will deny summary judgment in part to the DOJ as to the portions of Documents 3 and 13 that were publicly disclosed in the documents submitted by the plaintiff. The DOJ will be required to disclose the portions of Documents 3 and 13 that correspond to the pieces of privileged information that were made publicly
Finally, the Court will address the DIA's apparent invocation of the attorney work-product doctrine to withhold responsive records under Exemption 5. See Judicial Watch, Inc. v. Dep't of Justice, 432 F.3d 366, 369 (D.C.Cir.2005) ("FOIA Exemption 5 incorporates the work-product doctrine and protects against the disclosure of attorney work product."). "The work-product doctrine shields materials `prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent).'" Id. (quoting FED. R.CIV.P. 26(b)(3)). When reviewing an agency's withholding of material under the work-product doctrine, the "`testing question'... is `whether, in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation.'" In re Sealed Case, 146 F.3d 881, 884 (D.C.Cir.1998) (quoting Senate of P.R., 823 F.2d at 586 n. 42). "For a document to meet this standard, the lawyer must have at least had a subjective belief that litigation was a real possibility, and that belief must have been objectively reasonable." Id. Hence, at a minimum, an agency claiming the attorney work-product doctrine to withhold responsive material under the FOIA must (1) "provide a description of the nature and contents of the withheld document," (2) "identify the document's author or origin (by job title or otherwise)," (3) "describe the factual circumstances that surround the document's creation," and (4) "provide some indication of the type of litigation for which the document's use is at least foreseeable." Am. Immigration Council, 950 F.Supp.2d at 241-42, 2013 WL 3186061, at *16.
In its declarations, the DIA states that "a significant portion of the responsive records identified in this case related to other civil cases that arose from FOIA requests submitted by requesters referenced in [the plaintiff's] request." First Williams Decl. ¶ 24. The DIA's declarant further averred that "[t]hese records consist of the active discussions between counsel assigned by the Office of the General Counsel with DIA and other government employees in preparation of the agency's defense in litigation." Id. Accordingly, the DIA asserts that "disclosure of this information would reveal the case preparation, legal advice, and review recommendations of agency counsel." Id. The DIA's declarant states that "[i]n each instance where Exemption [5] is asserted to protect the attorney work-product, I have concluded that agency counsel was providing specific legal guidance related to an actual or potential litigation matter." Second Williams Decl. ¶ 12. The DIA's Vaughn index provides (1) the date that each withheld document was created, (2) a very brief description of the document (e.g., "2-page letter"), (3) the agency that originated the document, and (4) a boilerplate statement that the document "contains comments and recommendations" and that it was withheld "as an attorney work product" because it "was prepared in anticipation of litigation." See Second Williams Decl. Ex. A.
In sum, the Court denies summary judgment to the CIA, ODNI, DIA, and DOJ with respect to each agency's decision to withhold responsive material under Exemption 5. Specifically, with respect to each agency's Exemption 5 withholding decisions, the Court denies summary judgment to the CIA with regard to Count Seventeen in No. 11-444 and Counts One, Two, Three, and Seven in No. 11-445, to the ODNI with regard to Count Six in No. 11-445, and to the DIA with regard to Count Five in No. 11-445. These agencies may either renew their summary judgment motion with supplementary declarations and Vaughn indices, or else they must disclose to the plaintiff the responsive records or portions thereof that were withheld under Exemption 5. Finally, the Court grants in part and denies in part summary judgment to the DOJ on Count Eight in No. 11-445. The Court denies summary judgment to the DOJ on Count Eight as to the portions of Documents 3 and 13 that were publicly disclosed in the documents submitted by the plaintiff, and the Court grants summary judgment to the DOJ in all other respects.
The plaintiff next opposes a grant of summary judgment to the CIA and the State Department regarding those agencies' refusal to provide responsive records in electronic format. See Pl.'s First 444 Opp'n at 39-40; Pl.'s First 445 Opp'n at 37. The FOIA provides, "[i]n making any record available to a person ... an agency shall provide the record in any form or format requested by the person if the record is readily reproducible by the agency in that form or format." 5 U.S.C. § 552(a)(3)(B). In this regard, "[e]ach
There are two separate issues under the FOIA's "readily reproducible" provision. The first issue is whether or not a particular record "is readily reproducible by the agency in [the] form or format [requested by the person]," 5 U.S.C. § 552(a)(3)(B), and the "form or format" in this case is an electronic format. The second issue is whether the State Department has "ma[d]e reasonable efforts to maintain its records in forms or formats that are reproducible" in electronic format. Id.
With respect to the CIA, the Court first observes that the electronic records issue is not properly before the Court on summary judgment. The CIA has not moved for summary judgment on this issue, or at least does not specifically address this issue in moving for summary judgment in No. 11-443 or 11-444. Additionally, although the plaintiff contends in its opposition brief in No. 11-444 that "[t]he Court should order [the CIA] to promptly produce [certain] records in electronic format and to make provisions for the production in electronic format of records responsive to the remainder of NSC's requests at issue in this case," Pl.'s First 444 Opp'n at 40, the plaintiff likewise has not cross-moved for summary judgment on the electronic records issue.
The plaintiff first raised the electronic records issue in these related cases in the context of a discovery dispute with the CIA in No. 11-443. See Pl.'s Mot. for Status Conference Regarding Count 3, No.
Unfortunately, the electronic records issue cannot be "more efficiently addressed in the context of the pending motion for summary judgment in [No. 11-444]." See id. As discussed above, the CIA has not specifically addressed that issue in moving for summary judgment in No. 11-444, and the CIA only submitted a declaration on that issue in its reply brief in that case. See Def.'s First 444 Reply at 23-4. To the extent that the CIA implicitly moved for summary judgment on the electronic records issue by submitting a declaration attached to its reply brief, the Court denies summary judgment to the CIA because the declarations submitted by the CIA on this issue appear to the Court as unclear and internally inconsistent. Of particular note, the first declaration, submitted by Susan Viscuso, the former chief of the CIA's PIPD, stated that "the CIA maintains two different IT systems, a classified system and an unclassified system." See Decl. of Susan Viscuso (Dec. 13, 2011) ("First Viscuso Decl.") ¶ 5, No. 11-443, ECF No. 19-1. The declarant also averred that "[w]hen records responsive to Plaintiff's FOIA request were located, they were scanned and uploaded to the classified system." Id. ¶ 6. This statement strongly implies that responsive records were located somewhere other than the CIA's classified system and, after being located, were "scanned and uploaded to the classified system." See id. (emphasis added). Yet, in her second declaration, Ms. Viscuso averred that "[t]he CIA does not transfer documents from the unclassified system to the classified system for review and redaction pursuant to a FOIA request," and "[i]nstead, the unclassified records are already stored on the classified system." Supplemental Decl. of Susan Viscuso (Jan. 13, 2012) ("Second Viscuso Decl.") ¶ 3, No. 11-443, ECF No. 21 -1 (emphasis added).
The CIA's declarant does not reconcile how it is that the agency "does not transfer documents from the unclassified system to the classified system," Second Viscuso Decl. ¶ 3, while, at the same time, records responsive to the plaintiff's FOIA request were "scanned and uploaded to the classified system" after being located, First Viscuso Decl. ¶ 5 (emphasis added). Relatedly, if responsive records are located elsewhere before being "scanned and uploaded to the classified system," see First Viscuso Decl. ¶ 5, but "all CIA systems of records are located on the Agency's classified system," Second Viscuso Decl. ¶ 4, the CIA does not explain in which system of
With respect to the State Department, the plaintiff contends that the agency "has now implemented a FOIA processing system which only resides on its classified network, making it impossible for it to easily produce electronic records in response to a FOIA request." Pl.'s First 445 Opp'n at 37. The plaintiff claims that "State converted to this system only within the past two years," making State's decision "even more questionable." Id. The State Department explains in its sworn declaration that it "processes and reviews documents potentially responsive to a FOIA or Privacy Act request on its classified network, which is also where the [State] Department's redaction capabilities exist." First Walter Decl. ¶ 25. The State Department avers that processing potentially responsive documents on its classified system is necessary for three reasons. First, the State Department avers that "the Department must conduct a line-by-line classification review of all information responsive to a FOIA request regardless of how such documents are marked, and regardless of whether, in the abstract, they are likely to contain classified information." Id. ¶ 26. Second, the State Department claims that it must review all potentially responsive documents on its classified system because "the software the Department uses to review potentially responsive material also contains its only ability to redact information." Id. ¶ 27. Third, the State Department states that processing FOIA requests on its classified network is necessary because "[a] significant portion of the Department's business is classified," and "a large number of the documents responsive to FOIA requests received by the Department are classified documents," and thus "the Department's software for processing information access
Additionally, the State Department's declarant explains in detail why "[p]roviding Plaintiff with electronic versions of responsive documents would be very costly and time-consuming because of the additional steps the Department would have to take to comply with its information security procedures." Id. ¶ 29. First, these "information security procedures" would require "that an analyst within IPS locate and identify all non-exempt, releasable records within the processing system and then submit a formal, written request to the internal systems support staff in IPS stating that all such records have been deemed suitable for transfer." Id. Second, "[u]sing special extraction software, the systems support staff would ... have to remove the releasable records from the Department's processing system and place them in a folder on the classified network for further review by the Bureau's Information Systems Security Officer (`ISSO')." Id. Third, according to the State Department, "[t]he ISSO would then have to inspect each and every document [a second time] on a line-by-line basis to ensure that only the releasable, unclassified records were captured." Id. Fourth, "a request for support ... would have to be opened with the Department's Bureau of Information Resource Management (`IRM')." Id. ¶ 30. Fifth, "[a]fter a virus scan of the unclassified medium, IRM would then transfer each of the documents onto the medium and return the medium to the IPS analyst." Id. Finally, "the analyst would have to compare the contents of each of the downloaded files with the contents of each of the records in the classified processing system to ensure that each and every releasable record was properly downloaded." Id. The State Department avers that "this entire process would potentially take weeks or months for each tranche of releasable documents." Id.
Regarding the question of whether or not State Department records responsive to the plaintiff's FOIA request were "readily reproducible by the agency in [an electronic] form or format," 5 U.S.C. § 552(a)(3)(B), the Court is somewhat skeptical regarding the State Department's explanation of the labyrinthine steps that are necessary to move a document from the classified system to an unclassified piece of electronic media. Specifically, the State Department does not explain why an ISSO would need to perform a second line-by-line review of responsive documents after such documents had already been reviewed by IPS. See First Walter Decl. ¶ 29. Since the State Department "must conduct a line-by-line classification review of all information responsive to a FOIA request" in the ordinary course of responding to FOIA requests, see id. ¶ 26 the line-by-line review by an ISSO would either be completely duplicative and unnecessary or, if the ISSO's line-by-line review were the only one performed, it would not add anything to the State Department's normal burden in responding to FOIA requests.
Other than this second, redundant line-by-line review of documents by the ISSO, none of the additional steps required to produce documents in electronic format appear unduly burdensome.
Therefore, the Court concludes that, even considering the "substantial weight" owed to the State Department's declaration on the issue, see 5 U.S.C. § 552(a)(4)(B), the State Department has not carried its burden of establishing that the records requested by the plaintiff are not "readily reproducible" in an electronic format. Accordingly, the Court will not reach the second issue of whether the State Department has "ma[d]e reasonable efforts to maintain records in forms or formats that are reproducible" in electronic format. See id. § 552(a)(3)(B). The Court thus denies summary judgment to the State Department on Count Nine in No. 11-445 regarding the agency's decision not to produce responsive records to the plaintiff in an electronic format. The Court will permit the State Department either to submit a further declaration describing in more detail the exact burden involved in reproducing responsive records in an electronic format or to release the records responsive to the plaintiff's FOIA request in an electronic format.
Finally, the Court will address whether the defendants have met their burden of demonstrating that "[a]ny reasonably segregable portion of a record [was] provided to [the plaintiff] after deletion of the portions which are exempt under [the FOIA]." 5 U.S.C. § 552(b). At various points throughout its briefing, the plaintiff contends that the defendants have failed to satisfy this burden. See, e.g., Pl.'s First 443 Opp'n at 13, 19; Pl.'s First 444 Opp'n at 29; Pl.'s First 445 Opp'n at 9, 23. The CIA, ODNI, DIA, and State Department have averred that all reasonably segregable portions of withheld material have been provided to the plaintiff. See First Lutz Decl. ¶ 81; Third Lutz Decl. ¶ 43; Hackett Decl. ¶ 33; First Walter Decl. ¶ 38; First Williams Decl. ¶ 26. The DOJ and NSA, however, have not provided any similar representations to the Court.
The D.C. Circuit has acknowledged that establishing adequate segregation of non-exempt material "presents problems for the agency since ... segregability depends entirely on what information is in a document and how it is presented." Mead Data, 566 F.2d at 261. Therefore, although "agencies should not be forced to provide such a detailed justification that would itself compromise the secret nature of potentially exempt information," agencies "must be required to provide the reasons behind their conclusions in order that they may be challenged by FOIA plaintiffs and reviewed by the courts." Id. To this end, the Circuit has said that "[i]n addition to a statement of its reasons, an agency should also describe what proportion of the information in a document is non-exempt and how that material is dispersed throughout the document." Id. Under Mead Data, if a small proportion of the information is non-exempt, the agency's explanatory burden is less, and if a larger proportion of the information is non-exempt, "the courts should require a high
On the other hand, however, the Circuit has more recently held that "[a]gencies are entitled to a presumption that they complied with the obligation to disclose reasonably segregable material," which must be overcome by some "quantum of evidence" by the requester. Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1117 (D.C.Cir. 2007). Indeed, more recent decisions from the D.C. Circuit have indicated that the standard first articulated in Mead Data has been relaxed. Those decisions have held that an agency may satisfy its segregability obligations by (1) providing a Vaughn index that adequately describes each withheld document and the exemption under which it was withheld; and (2) submitting a declaration attesting that the agency released all segregable material. See, e.g., Loving, 550 F.3d at 41 (stating that "the description of the document set forth in the Vaughn index and the agency's declaration that it released all segregable material" is "sufficient for [the segregability] determination"); Johnson v. Exec. Office for U.S. Attorneys, 310 F.3d 771, 776 (D.C.Cir.2002) (upholding agency's segregation efforts based on "comprehensive Vaughn index" and "the affidavits of [agency officials]").
Under the segregability standards more recently articulated by the D.C. Circuit in Loving and Johnson, the Court first concludes that the DOJ has failed to satisfy its segregability burden because it has failed to submit a declaration attesting that it released all segregable, non-exempt material. This is a basic requirement, and without it the Court cannot conclude that the DOJ has satisfied its segregability obligations. Furthermore, although the CIA, ODNI, and DIA have averred that all reasonably segregable portions of withheld material have been provided to the plaintiff, the Court has also concluded above that all three of these agencies, as well as the DOJ, have deficiencies in their Vaughn indices. See supra Part III.H, III.J. In light of these deficiencies, the Court concludes that the segregability efforts of the CIA, ODNI, DIA, and DOJ do not meet even the more lenient standard articulated in Loving and Johnson. Those cases require, at a minimum, that an agency submit a "comprehensive Vaughn index," see Johnson, 310 F.3d at 776, which sufficiently describes each document withheld and the reasons for the withholding, see Loving, 550 F.3d at 41. Although the Court does not doubt the sworn statements from the CIA, ODNI, and DIA about their segregability efforts, see First Lutz Decl. ¶ 81; Third Lutz Decl. ¶ 43; Hackett Decl. ¶ 33; First Williams Decl. ¶ 26, absent a sufficient Vaughn index, an agency must provide other facts, beyond its good-faith assurances, that would establish that it released all reasonably segregable, non-exempt material. Such information could include, for example, a description of "what proportion of the information in a document is non-exempt and how that material is dispersed throughout the document." See Mead Data, 566 F.2d at 261.
Finally, as to the State Department, that agency has sufficiently demonstrated that it has satisfied its segregability obligations with respect to the one responsive document that it has thus far withheld, in whole or in part, which is disputed in this case. As to that document, the State Department has provided a detailed description, averring that it is a 91-page "guide to the procedures used for processing information access requests received by the [State] Department." First Walter Decl. ¶ 35. The
For the reasons discussed above, in summary, the Court rules on the defendants' motions for summary judgment, the plaintiff's cross-motions for summary judgment, the plaintiff's motion for leave to file an amended complaint, and the plaintiff's motion for sanctions as follows:
The Court directs the parties to jointly file, within twenty days of this decision, the following: (1) a status report that sets forth a list of the records that remain in dispute, in light of the Memorandum Opinion accompanying this Order, and that identifies each such disputed record by a Bates number, or other unique identifier, and by citation to the particular page(s) of the Vaughn index where the disputed record is described; and (2) a proposed briefing
An appropriate Order accompanies this Memorandum Opinion.
First, permitting a member of the public to request from an agency a listing of search results or a listing that summarizes or describes the contents of an electronic database would permit the public to requisition the resources of government agencies in a way that the FOIA did not intend. The FOIA was intended to provide access to records held by federal agencies, nothing more. The FOIA was not intended to provide access to the mechanisms that agencies use to retrieve or aggregate information. Although the FOIA is a powerful and necessary statute, it was not intended to permit the public to commandeer agency employees as research assistants, including with respect to performing queries in electronic databases. See Assassination Archives & Research Ctr., 720 F.Supp. at 219 ("FOIA was not intended to reduce government agencies to full-time investigators.").
The second premise of the Court's holding focuses on the question of how the FOIA's definition of a "record" applies to information held in a database like the one at issue in Count Eight in No. 11-445, which holds information extracted from FOIA requests and is used, inter alia, to locate and manage those underlying records. The statute's definition is only moderately helpful and largely circular, defining "record" in relevant part as "any information that would be an agency record subject to the requirements of this section when maintained by an agency in any format, including an electronic format." 5 U.S.C. § 552(f)(2)(A). The obvious question left open by this statutory definition is: What "would be an agency record subject to the requirements of this section"? See id. As applied to this case, a difficulty arises because, when a database is queried, the listing which results from that query is essentially a unique permutation of smaller, individual pieces of information. These individual pieces of information — for example, the data points that populate a given field of the database — are records under the FOIA. It is for this reason, as the Court previously noted, that "[t]he FOIA requires agencies to disclose all non-exempt data points that it retains in electronic databases." NSC I, 898 F.Supp.2d at 272. The crux of the Court's reasoning, however, is that when those individual data points are uniquely arrayed — for example, when a query returns a list of search results — that unique array (or "aggregation") of the individual data points constitutes a distinct record. It is a distinct record because the particular arrangement of data conveys a unique set of information — information that is distinct from what the individual data points can convey when they are arranged differently or when they are not arranged in any particular way at all. Thus, unless the agency has "chosen to create and retain" this unique aggregation or arrangement of data points, production of such an aggregation or arrangement of data involves the creation of a new record. See Yeager, 678 F.2d at 321. Yeager's use of the word "retain" is crucial. An agency may have previously run a search identical to the one for which a requester now seeks a listing of search results, and in doing so the agency would have chosen to "create" the record in question already. Unless the agency in some way "retains" the unique aggregation of data, however, that record, in its unique form, is not preserved in the agency's electronic version of a file cabinet.
