BERYL A. HOWELL, District Judge.
The plaintiffs, Sharif Mobley and his wife Nzinga Islam,
On January 26, 2010, Mobley was "abducted" from the streets of Sana'a, Yemen and held in the custody of the Yemeni government for several weeks, during which time he was allegedly questioned by U.S. agents and given medical attention for wounds he suffered during his abduction. See Decl. of Cori A. Crider ("Crider Decl.") ¶¶ 8-10, 26-41, 47-48, ECF No. 24-1 (No. 11-2072). Mobley "is now alleged to have tried to escape from the Jumhori Hospital where he was held incommunicado, shooting two guards, one fatally." See id. ¶ 50. Mobley remains in Yemeni custody on murder charges and faces a potential death sentence. See id. ¶ 53.
On July 22, 2010, after all of these events transpired, Mobley filed, through counsel, a FOIA/PA request with defendants Department of Defense (or "Defense"), Department of State (or "State"), and Department of Justice (or "Justice"), as well as to the Department of Homeland Security, which is not a party to these related actions. See Decl. of Sheryl L. Walter ("First Walter Decl.") ¶ 4, ECF No. 24 (Aug. 1, 2012) (No. 11-2072); id. Ex. 1, ECF No. 24-1 (No. 11-2072). This request sought records relating to:
First Walter Decl. Ex. 1, at 2. The request clarified that Mobley was requesting "all records in any way relating to, pertaining to, or mentioning himself by any and all persons or entities, including all persons acting on behalf of the United States." Id. Additionally, the request provided sixteen categories of records intended "to elucidate the sorts of records in the likely possession of the targeted agencies." Id. These categories included, inter alia, "[a]ny records ... created from November 2009 ... between the federal government and the government of Yemen regarding Mr. Mobley," including "[r]ecords discussing whether Mr. Mobley was a target of intelligence interest" and "[a]ll records created after January 1, 2010, relating to visits of U.S. agents ... to Mr. Mobley" in the hospital or in prison. See id. at 4-5. The July 22, 2010, request also sought expedited processing and a fee waiver. See id. at 6-7. On August 15, 2011, both of the plaintiffs filed a separate FOIA/PA request with the CIA seeking "all Central Intelligence Agency (`CIA') records about Mr. Mobley and Ms. Islam." Supp. Decl. of Michele L. Meeks ("Second Meeks Decl.") Ex. 2, at 1, ECF No. 49-2 (May 25, 2012) (No. 11-2072). This request referred to Mobley's July 22, 2010 request "only for reference purposes" and clarified that "the scope of this request is for all CIA records about Mr. Mobley and Ms. Islam." Id.
The first agency to respond to the plaintiffs was the CIA. In a letter dated September 20, 2011, the CIA notified the plaintiffs that although, "[a]fter a thorough search of the appropriate records system," the agency was "able to locate responsive material," the material "must be denied in its entirety on the basis of ... PA exemptions (j)(1) and (k)(1), and FOIA exemptions (b)(1) and (b)(3)." Second Meeks Decl. Ex. 3, at 1, ECF No. 49-3 (No. 11-2072). The CIA's first letter also stated that "[w]ith respect to responsive records that would reveal a classified connection to the CIA ... the CIA can neither confirm nor deny the existence or nonexistence of records responsive to your request." Id. The CIA's refusal to confirm or deny the existence of responsive records was "pursuant to FOIA exemptions (b)(1) and (b)(3), and PA exemptions and (k)(1)." Id. On January 11, 2012, however, the CIA sent the plaintiffs "amended final response letters," which clarified that the initial response letter "contained inaccuracies," and the amended letters "correctly reported that the CIA's search for records that would reflect an open or otherwise acknowledged connection to Plaintiffs produced no responsive records." Decl. of Michele L. Meeks ("First Meeks Decl.") ¶ 13, ECF No. 39 (May 25, 2012) (No. 11-2072).
The next agency to respond to Mobley's request was the State Department.
The searches performed by State ultimately yielded 293 total records responsive to Mobley's request. First Walter Decl. ¶ 35. 165 of these records were released to Mobley in full, 75 of the records were released in part with certain portions redacted, and 42 of the records were withheld in full. Id. The documents that were withheld from release, either in whole or in part, were withheld pursuant to one or more of the following: FOIA Exemptions 1, 5, 6, and 7(C); and PA Exemptions (d)(5), (k)(1), and (k)(2). See id. ¶¶ 36-53. The remaining eleven records were referred to the Department of the Army (in particular the Office of the Provost Marshal General ("OPMG")) on March 5, 2012, for their review and direct response to Mobley, and all of these eleven records were eventually withheld in full by the OPMG, pursuant to FOIA Exemption 1 and PA Exemption (k)(1). Id. ¶ 35; see also FAC ¶¶ 21-24; Decl. of John G. Hargitt ("First Hargitt Decl.") ¶¶ 4, 6, ECF No. 36-1 (June 25, 2012) (No. 11-2072). Mobley also filed a separate FOIA request with the OPMG on June 25, 2012, seeking any responsive records beyond the eleven records that had already been referred by State to the OPMG. See FAC ¶ 31. In response, the OPMG expedited the request and issued a final determination on July 19, 2012, identifying one responsive record and withholding it in full, pursuant to FOIA Exemption 1 and PA Exemption (k)(1). Id. ¶¶ 31-32; see also Decl. of John G. Hargitt ("Second Hargitt Decl.") ¶ 6, ECF No. 42-5 (Aug. 30, 2012) (No. 11-2073).
The final agencies to provide a final response to Mobley were Defense and Justice. Beginning with Defense, Mobley's counsel clarified with Defense that he only believed that Defense possessed records responsive to line items 10, 14, and 15 of his FOIA/PA request. See FAC ¶¶ 11-12.
The 41 responsive records identified by the DIA were located in the Open Source Center ("OSC") and referred to the CIA on June 17, 2011. See Decl. of Michele L. Meeks ("Third Meeks Decl.") ¶ 5, ECF No. 42-1 (Sept. 4, 2012) (11-2073). The OSC "collects, monitors, processes, analyzes, and disseminates publicly available information from primarily foreign sources." Id. ¶ 8. Of the 41 documents referred to the CIA, 28 of the documents were released in full, six of the records were referred back to Defense, one record was referred to State,
Finally, the response to Mobley's FOIA/PA request by Justice, for purposes of these related actions, was made by the Federal Bureau of Investigation ("FBI"). The FBI informed Mobley by letter dated April 5, 2011 that it was processing his request and that the FBI was "searching the indices to our Central Records System [or `CRS'] for the information you requested." See First Argall Decl. Ex. D at 1, ECF No. 25-5. The FBI granted Mobley's request for expedited processing by letter dated May 23, 2011. See First Argall Decl. Ex. I at 1, ECF No. 25-10. On August 17, 2011, after the plaintiffs submitted the privacy waiver of Ms. Islam, the FBI treated the privacy waiver as a new FOIA request, and assigned it a distinct tracking number. See First Argall Decl. Ex. N, ECF No. 25-15. On August 18, 2011, Mobley's counsel wrote the FBI an e-mail clarifying that Ms. Islam's privacy
On August 29, 2011, Mobley's counsel contacted the FBI via e-mail, asking that the agency "please ensure that you search for all `main' files and all `reference' or `cross-reference' files" and also requesting that the FBI search ten specific types of records systems. See First Argall Decl. Ex. P at 1, ECF No. 25-17. Similarly, on September 21, 2011, Mobley's counsel contacted the FBI via e-mail to request that the FBI "include the Baltimore Field Office in your search" along with the Washington, D.C., Field Office. See First Argall Decl. Ex. R, at 1, ECF No. 25-19. On May 4, 2012 — the same date that the DIA provided its final response — the FBI notified Mobley that it had located eighty-five pages of responsive records, and in the same correspondence the FBI released all eighty-five pages in part, with certain portions redacted pursuant to one or more of the following: FOIA Exemptions 1, 6, and 7(C); and PA Exemption (j)(2). See First Argall Decl. ¶ 24.
The plaintiffs filed both of the instant related actions on November 22, 2011, at which time only the CIA had provided a final determination regarding the plaintiffs' FOIA/PA request.
Congress enacted the FOIA to promote transparency across the government. See 5 U.S.C. § 552; Quick v. U.S. Dep't of Commerce, Nat'l Inst. of Standards & Tech., 775 F.Supp.2d 174, 179 (D.D.C. 2011). 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
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. See 5 U.S.C. § 552(b). "These exemptions are explicitly made exclusive, and must be narrowly construed." Milner v. Dep't of the Navy, ___ U.S. ___, 131 S.Ct. 1259, 1262, 179 L.Ed.2d 268 (2011) (citations and internal quotation marks omitted); see also Pub. Citizen, Inc. v. Office of Mgmt. & Budget, 598 F.3d 865, 869 (D.C.Cir.2010) ("FOIA allows agencies to withhold only those documents that fall under one of nine specific exemptions, which are construed narrowly in keeping with FOIA's presumption in favor of disclosure." (citations omitted)). When a FOIA requester properly exhausts its administrative remedies, it may file a civil action challenging an agency's response to its request. See 5 U.S.C. § 552(a)(4)(B); Wilbur v. CIA, 355 F.3d 675, 677 (D.C.Cir. 2004). Once such an action is filed, the agency generally has the burden of demonstrating that its response to the plaintiff's FOIA request was appropriate.
When an agency's response is neither to confirm nor deny the existence of responsive documents — commonly known as a Glomar response
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 ("Weisberg I"), 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)).
The Privacy Act, 5 U.S.C. § 552a, "regulates the `collection, maintenance, use, and dissemination of information' about individuals by federal agencies." Wilson v. Libby, 535 F.3d 697, 707 (D.C.Cir.2008) (quoting Doe v. Chao, 540 U.S. 614, 618, 124 S.Ct. 1204, 157 L.Ed.2d 1122 (2004)). The statute provides that, if any federal agency maintains a "system of records," it must "upon request by any individual to gain access to his record or to any information pertaining to him which is contained in the system, permit him ... to review the record and have a copy made of all or any portion thereof in a form comprehensible to him." 5 U.S.C. § 552a(d)(1). The statute defines a "system of records" as "a group of any records under the control of any agency from which information is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particular assigned to the individual." Id. § 552a(a)(5). If an agency "refuses to comply with an individual request," the individual may bring a civil action against the agency. See id. § 552a(g)(1)(B).
In these related actions, the plaintiffs challenge four separate aspects of the defendants' responses to the plaintiffs' FOIA/PA requests. First, the Court will address the plaintiffs' challenges to the adequacy of certain defendants' searches for records. Second, the Court will discuss the plaintiffs' challenges to the propriety of certain defendants' Glomar responses, i.e., refusals to confirm or deny the existence of responsive records. Third, the Court will discuss whether the defendants have adequately justified their determinations to withhold certain responsive records. Finally, the Court will assess whether certain defendants sufficiently established that all "reasonably segregable portion[s]" of the withheld records were provided to the plaintiffs. See 5 U.S.C. § 552(b).
As discussed above, "an agency responding to a FOIA request must `conduct[] a search reasonably calculated to uncover all relevant documents,' and, if challenged, must demonstrate `beyond material doubt' that the search was reasonable." Truitt v. Dep't of State, 897 F.2d 540, 542 (D.C.Cir.1990) (footnotes omitted) (quoting Weisberg I, 705 F.2d at 1351). The adequacy of a search "is judged by a standard of reasonableness and depends, not surprisingly, upon the facts of each case." Weisberg v. U.S. Dep't of Justice ("Weisberg II"), 745 F.2d 1476, 1485 (D.C.Cir.1984). "The question is not whether there might exist any other documents possibly responsive to the request, but rather whether the search for those documents was adequate." Steinberg v. U.S. Dep't of Justice, 23 F.3d 548, 551 (D.C.Cir.1994) (quoting Weisberg II, 745 F.2d at 1485). "Mere speculation that as yet uncovered documents may exist does not undermine the finding that the agency conducted a reasonable search for them." SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1201 (D.C.Cir.1991).
The plaintiffs first contend that the CIA's search for records reflecting an open or otherwise acknowledged affiliation between the CIA and the plaintiffs was inadequate for two reasons. First, the plaintiffs argue that the CIA "improperly failed to search the OSC for responsive records" based on the fact that 41 responsive records from the OSC were referred to the CIA by the DIA. See Pls.' Opp'n to Def.'s Mot. for Summ. J. ("Pls.' Opp'n") at 7, ECF No. 40 (No. 11-2072). Second, the plaintiffs argue that the CIA "improperly failed to search the FOIA office for records about Plaintiffs," which the plaintiffs
With respect to the plaintiffs' complaint about the failure to search the OSC, the CIA responds that because "most of the records contained in the DNI OSC are generally available to the public both through their original sources and through the World News Connection, CIA presumes in most cases that a FOIA requester does not want CIA to search those records unless the requester specifically asks for them." Defs.' Reply in Supp. Mot. for Summ. J. ("Defs.' Reply") at 3, ECF No. 49 (No. 11-2072). The CIA contends that such a policy is reasonable for two main reasons. First, it "ensures that requesters do not receive public records that they do not want, particularly when requesters will often be charged fees for an agency to process and release publicly available material." Id. Additionally, "requiring requesters to submit separate requests for publicly available records is consistent with FOIA's requirement that agencies `make records promptly available' because public records can often ... be released more quickly without [the] need to process them for redactions." Id. (citation omitted); see also Cunningham v. Holder, 842 F.Supp.2d 338, 345-46 (D.D.C. 2012) ("The requirement of a specific request for public records makes sense."). Alternatively, the CIA responds that it will agree to search the OSC and turn over any responsive records, "but it will charge plaintiffs fees for that purpose" because "plaintiffs should not be entitled to circumvent the applicable access fees [from World News Connection or Westlaw] and obtain those records for free simply by submitting a FOIA request." Id. at 3-4; see also Second Meeks Decl. ¶¶ 6-13 (explaining the CIA's policy regarding search for publicly available records in response to FOIA requests).
The plaintiffs, however, contest the CIA's premise that the OSC is comprised mostly of publicly available records. Most glaringly, the plaintiffs point out that "[o]f the twenty-eight released records, twelve are available on the World News Connection" and "twelve out of twenty-eight is not `most' by even the most lenient standards." Pls.' Sur-Reply to Defs.' Mot. for Summ. J. ("Pls.' Surreply") at 2, ECF No. 53 (No. 11-2072). The plaintiffs also observe that "the fact that CIA withheld seven records in full speaks volumes about whether or not this information is publicly available." Id. The plaintiffs concede that "CIA should not have to process OSC records which are available on the World News Connection," but they argue instead that "CIA should... be required to search for and process all OSC records which are not [publicly available]." Id.
On the one hand, the CIA is correct that a policy of "generally interpret[ing] [first-person] FOIA requests ... to be for non-public documents" is reasonable for all of the reasons that similar policies have been upheld in prior cases. Defs.' Reply at 3 (No. 11-2072); see, e.g., Cunningham, 842 F.Supp.2d at 345 ("EOUSA's request that Plaintiff submit a separate specific request for public records is consistent with FOIA's requirements."); McLaughlin v. U.S. Dep't of Justice, 598 F.Supp.2d 62, 66 & n. 2 (D.D.C.2009) (upholding agency's decision to charge duplication fees for publicly available records and observing that a policy of presuming that FOIA requests are for only non-public records "comports with the statutory requirement that agencies `make [responsive] records promptly available'"). The problem for the CIA is that only "[m]ost material from the OSC is ... available to
The CIA appears to agree that the plaintiffs are entitled to receive any non-public, responsive records contained in the OSC database, free of charge. See Second Meeks Decl. ¶ 12 ("The [CIA] recognizes that, with respect to non-public records, requestors should generally be able to obtain information about themselves free of charge...."). Similarly, the plaintiffs agree that "CIA should not have to process OSC records which are [not publicly] available." Pls.' Surreply at 2 (No. 11-2072). The practical problem lies in deciding which party has the burden of determining which OSC records are publicly available and which are not. The plaintiffs propose placing that burden on the CIA. See id. The CIA, however, proposes placing that burden on the plaintiffs by essentially presuming that all OSC records are publicly available and charging fees for the production of all such records. See Defs.' Reply at 4 (No. 11-2072).
The parties have presented no evidence regarding how burdensome it would be to distinguish between public and non-public records retrieved from the OSC, but this will often be self-evident with the publication origin of the document, apparent on its face. Thus, the CIA must search the OSC database for any records responsive to the plaintiffs' FOIA/PA request and must release any non-exempt, responsive records to the plaintiffs. Additionally the CIA may choose, in its discretion, to charge fees to the plaintiffs for any records that it produces from this search that it identifies as being publicly available, and the plaintiffs may challenge any fees that they believe are improperly levied on this basis.
The plaintiffs also argue that the CIA's search was inadequate because it "improperly failed to search the FOIA office for records about Plaintiffs." Pls.' Opp'n at 7 (No. 11-2072). The CIA states that its FOIA officers "do not consider records of previous FOIA, PA, or [Mandatory Declassification Review, or `MDR'] requests ... to be responsive to a current request"
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 are "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").
In this case, the language of plaintiffs' request sent mixed signals about the request's intended scope. On the one hand, it explicitly sought "all [CIA] records about Mr. Mobley and Ms. Islam," but it also explicitly deemphasized the relevance of the plaintiffs' prior FOIA/PA request by stating that it referred to that request "only for reference purposes." Second Meeks Decl. Ex. 2, at 1. It is unclear from the four corners of the August 15, 2011 request what the plaintiffs meant by "only for reference purposes," but the CIA was reasonable in interpreting "only for reference purposes" to mean not for purposes of expressing an interest in records associated with prior FOIA/PA requests. Thus, the plaintiffs' specific disclaimer regarding the July 22, 2010 request could be reasonably interpreted to disavow an interest in obtaining records about that prior request, and therefore the CIA's decision not to search its FOIA office for responsive records was reasonable.
Next, the plaintiffs challenge the adequacy of the State Department's search on the grounds that "State failed to follow clear leads when performing its search for responsive records." Pls.' Opp'n at 27 (No. 11-2072). In their surreply, the plaintiffs clarify that they "concede the adequacy of the majority of State's search" and only challenge State's failure to assert that it searched the component where eighteen classified documents originated. See Pls.' Surreply at 8 (No. 11-2072). The only information that State has provided on the public record regarding these eighteen documents, which State refers to as X1-X18, are the year in which each document was created and the number of pages contained in each document. See First Walter Decl. ¶¶ 182-99. Other than this, State maintains that "[n]o further information can be provided regarding [these] document[s] on the public record." Id. The government has also "submitted a classified, ex parte, in camera filing" that elaborates on the nature of records X1-X18. See Notice of Ex Parte, In Camera Filing, ECF No. 29 (No. 11-2072). As the plaintiffs concede, the State Department has no obligation to name the component from which these eighteen documents originate. See Pls.' Surreply at 8 (No. 11-2072) (conceding that "State does not have to describe these records, or even the component in which they originated"). Upon review of the government's ex parte, in camera filing, in conjunction with the public declarations submitted by the State Department, the Court is satisfied that the State Department searched all of its components reasonably likely to contain responsive information. Therefore, the State Department's search was adequate, and the plaintiffs' objections to the State Department's search are unavailing.
In his final challenge related to search adequacy, Mobley contends that the FBI's search for responsive records was inadequate for two interrelated reasons. First, he says that the FBI's search was inadequate because it did not search certain specific records systems that Mobley's counsel asked it to search. See Pl.'s Opp'n to Defs.' Mot. for Summ. J. ("Pl.'s Opp'n") at 21-22, ECF No. 45 (No. 11-2073). Second, Mobley argues that "[t]he inadequacy of FBI's search is demonstrated by the ample evidence that other records exist." Id. at 22. For this point, Mobley cites the fact that, in related Civil Case No. 11-2072, "State produced numerous records to Mobley, some of which consisted of extensive email traffic between State and FBI," which "demonstrate the existence of significant email records about Mobley that were not identified in FBI's search," and Mobley also points to certain press coverage, which indicated that "FBI was even discussing Mobley with the press," yet "no records of interaction with the press were identified by FBI's search." Id.
To provide some context to Mobley's argument, as discussed briefly above, Mobley's counsel contacted the FBI via e-mail on August 29, 2011 — slightly more than thirteen months after Mobley submitted his FOIA/PA request to the FBI — to ask that:
First Argall Decl. Ex. P, at 1. As explained in the Bureau's sworn declaration, "[t]he FBI conducted a search of the [Central Records System, or `CRS'] utilizing a phonetic breakdown of Sharif Mobley's name, including any variations of the first and last name that sound like or are spelled differently than the name." First Argall Decl. ¶ 31. "The FBI also used the plaintiff's date of birth to facilitate the identification of responsive records." Id. The CRS "enables the FBI to maintain all information which it has acquired in the course of fulfilling its mandated law enforcement responsibilities" and includes "administrative, applicant, criminal, personnel, and other files compiled for law enforcement purposes." Id. ¶ 25. "The CRS currently consists of over 115 million records." Second Decl. of Dennis J. Argall ("Second Argall Decl.") ¶ 3, ECF No. 50-2 (Oct. 12, 2012) (No. 11-2073).
Although Mobley concedes that "several of these systems" that his lawyer specifically requested to be searched, including ACS, ECF, UIF, ICM, and LEGAT, "have been incorporated into the CRS," Mobley maintains that "many have not, including the shared drives, the ELSUR index, `tickler' files, CSS files, `zero' files, and emails." Pl.'s Opp'n at 21-22 (No. 11-2073). Several of these complaints were cleared up by the FBI's second sworn declaration, which clarified that (1) the FBI's original search would have identified any CSS or "zero" files, Second Argall Decl. ¶ 6, (2) the ELSUR indices were searched and yielded no responsive results, see id. ¶ 8, and (3) because "tickler" files "were a phenomenon associated with earlier times in the FBI" and "would have been historical in nature," there "is no need for the FBI to search for tickler files" absent an express request to do so, see id. ¶ 7. Finally, the FBI contends that it need not search shared drives or unspecified e-mail systems "[g]iven the broad search of the comprehensive CRS system and the ELSUR indices" and Mobley's failure to ask the FBI specifically to search e-mail systems. See id. ¶ 9(b); Defs.' Reply in Supp. of Mot. for Summ. J. ("Defs.' Reply") at 16-19, ECF No. 50 (No. 11-2073). Specifically, the FBI argues that, with respect to the documents that Mobley says exist based on documents produced by State, "FBI's failure to turn up documents that plaintiff speculates exist does not mean that FBI's search was inadequate." Defs.' Reply at 18 (No. 11-2073) (citing Wilbur, 355 F.3d at 678).
Mobley does not appear to contest the FBI's explanations regarding the CSS files, "zero" files, ELSUR indices, or "tickler" files. Instead, Mobley focuses his attention on the FBI's refusal to search shared drives and unspecified e-mail systems.
Mobley contends that Campbell "is important for three separate but equally important reasons." Pl.'s Surreply at 12 (No. 11-2073). First, Mobley argues that the FBI was required to search all shared drives and unspecified e-mail systems for responsive records because he "established in his Opposition several places in FBI's release which suggest the existence of documents it had not located." Id. at 13. Hence, Mobley contends that "upon discovering this information, [the FBI] was required to expand its search to locate any responsive documents located in other systems." Id. (citing Campbell, 164 F.3d at 28). In his opposition brief, Mobley did cite one example in the FBI's release that could have suggested the existence of other, unreleased FBI documents.
Mobley urges that this information in released FBI records constitutes "significantly more than `mere speculation'" and warrants more extensive searching by the FBI. Id. at 23-24. The Court disagrees. Even assuming that the released FBI records establish the existence of an FBI investigation into Ms. Islam, such records
Second, Mobley observes that, in Campbell the "FBI conceded that it would have to perform an ELSUR search if specifically asked to do so within the FOIA request." Pl.'s Surreply at 12 (No. 11-2073) (emphasis omitted). From this, Mobley posits that the FBI was required to search all shared drives because Mobley "specifically instruct[ed] FBI" to do so. Id. Mobley's reasoning on this point, however, is incorrect as a matter of law. At the outset, Mobley's reliance on Campbell for the proposition that the "FBI conceded that it would have to perform an ELSUR search if specifically asked to do so within the FOIA request," id., is misleading. The portion of the Campbell opinion to which Mobley refers was a recitation by the Court of the FBI's argument that "the `weight of authority' justifies refusing to supplement a CRS search with an ELSUR search unless specifically asked to do so within the FOIA request." See Campbell, 164 F.3d at 28. Regardless of what this statement suggests about what the FBI "conceded," the FBI's arguments in litigation do not amount to FOIA precedent. This concession would not help Mobley in any event because Mobley's specific demands in this case came over a year after Mobley's FOIA request was submitted, in an unsolicited e-mail from his counsel, rather than "within the FOIA request." See id. Although Mobley attempts to shoehorn such communications into the ambit of Campbell by arguing that the FBI's purported concession extends to the entire "FOIA request process," Pl.'s Surreply at 12 (No. 11-2073), it is the law in this Circuit that an agency "is not obligated to look beyond the four corners of the [FOIA] request for leads to the location of responsive documents," Kowalczyk, 73 F.3d at 389.
Mobley's final argument under Campbell is that the FBI has not accounted for all shared drives in its sworn declaration. See Pl.'s Surreply at 12 (No. 11-2073). Mobley complains that, in the FBI's second sworn declaration, it "only addresses the `I-drive' and `S-drive'" but "mak[es] no mention of other shared drives and why they were not searched." Id. In addition to discussing the "I-Drive" and "S-Drive" in its second sworn declaration, the FBI also appeared to speak more categorically regarding "shared drives." See Second Argall Decl. ¶ 9(b). From the FBI's declaration it is difficult to ascertain with certainty whether "S-Drive" is a generic term used within the FBI to refer to all "shared drives" or whether the FBI maintains multiple kinds of shared drives that may be limited in use to function or location. See id. ("`S-Drive' systems are common drives or shared drives that are currently used by the FBI headquarters and field offices."). Mobley's counsel also asserts for the first time in his surreply that he "recently learned of the existence of a `T-Drive,'" which he implies may also be a shared drive, though he has offered no evidence to support such an implication. See Pl.'s Surreply at 12-13 (No. 11-2073).
Whether or not there are other shared drives beyond the "I-Drive" and "S-Drive," however, is a red herring. Ultimately, the FBI has averred that "[g]iven the broad search of the comprehensive CRS system and the ELSUR indices ... [the FBI's acting FOIA chief] determined that there is no reasonable basis to conclude that responsive records are reasonably likely to be located by further searches of shared drives." Second Argall
In sum, all of Mobley's challenges to the adequacy of the FBI's search for responsive records are insufficient to defeat the FBI's entitlement to summary judgment on this issue.
The next category of issues raised by the plaintiffs is the propriety of the DIA and the CIA issuing Glomar responses to the plaintiffs' FOIA/PA requests. A Glomar response is "an exception to the general rule that agencies must acknowledge the existence of information responsive to a FOIA request and provide specific, non-conclusory justifications for withholding that information." Roth v. U.S. Dep't of Justice, 642 F.3d 1161, 1178 (D.C.Cir.2011). Thus, a Glomar response allows an agency to respond to a FOIA request by neither confirming nor denying the existence of any records responsive to the request, on the grounds that "confirming or denying the existence of records would itself `cause harm cognizable under a[] FOIA exception.'" Id. (quoting Wolf, 473 F.3d at 374).
As discussed above, the CIA notified the plaintiffs, in response to their FOIA/PA request that "[w]ith respect to responsive records that would reveal a classified connection to the CIA ... the CIA can neither confirm nor deny the existence or nonexistence of records responsive to your request." Second Meeks Decl. Ex. 3, at 1. The plaintiffs challenge this Glomar response on three grounds: (1) the CIA officially acknowledged the existence of responsive records that would reveal a classified affiliation with the plaintiffs, and thus it waived its ability to issue a Glomar response; (2) the CIA improperly invoked FOIA Exemption 1 to support its Glomar response; and (3) the CIA improperly invoked FOIA Exemption 3 to support its Glomar response.
The plaintiffs' first argument is premised on what the CIA has referred to as an "inaccurac[y]" or "error" in its initial, September 20, 2011, response to the plaintiffs' request. See First Meeks Decl. ¶¶ 13, 22. As discussed previously, this initial letter stated that "we were able to locate responsive material." Second Meeks Decl. Ex. 3, at 1. The amended response letter, however, which was sent over three months later, on January 11, 2012, admitted that "our initial response letter contained inaccuracies regarding our search," and it went on to state that the CIA was "unable
The plaintiffs contend that this "misunderstanding" is "[o]ne of the key issues" that is "at the core of CIA's processing of Plaintiffs' FOIA/PA requests." Pls.' Opp'n at 2 (No. 11-2072). They argue that, because there is no evidence to establish "that the `mistake' was truly an innocent administrative error that should have no consequences," there "is a genuine issue of material fact regarding the nature of CIA's `mistake' and the appropriate consequences for the agency," which preclude summary judgment on this issue. Id. at 11. Despite this restrained framing, the bottom line of the plaintiffs' argument on this issue is that the "CIA waived its right to issue a Glomar response" because the CIA officially acknowledged the existence of responsive records. Id. at 6, 8-9.
The fundamental error in the plaintiffs' argument, however, as the defendants point out, is that "plaintiffs have made no argument that the CIA's initial response actually disclosed [the relevant] Glomar fact," i.e., the fact that "records revealing a classified connection between plaintiffs and the CIA" existed. Defs.' Reply at 6 (No. 11-2072). In order to constitute an "official acknowledgement" of information that waives an agency's ability to issue a Glomar response, "the information requested must be as specific as the information previously released," the "information requested must match the information previously disclosed," and "the information requested must already have been made public through an official and documented disclosure." Wolf, 473 F.3d at 378 (quoting Fitzgibbon v. CIA, 911 F.2d 755, 765 (D.C.Cir.1990)). "In the Glomar context, then, if the prior disclosure establishes the existence (or not) of records responsive to the FOIA request, the prior disclosure necessarily matches both the information at issue — the existence of records — and the specific request for that information." Id. at 379. In this case, the prior disclosure, i.e., the initial September 20, 2011, response letter, only disclosed that the CIA was "able to locate responsive material," and the context of the letter clearly conveyed that this "responsive material" was limited to responsive records that would reveal an unclassified connection to the CIA. See Second Meeks Decl. Ex. 3, at 1; First Meeks Decl. ¶ 22 (stating that the CIA "mistakenly claimed that the CIA was withholding [records reflecting an unclassified relationship with Plaintiffs]"). This implication was clear because in the very next paragraph, the letter stated that the CIA could neither confirm nor deny the existence of "responsive records that would reveal a classified connection to the CIA." Second Meeks Decl. Ex. 3, at 1 (emphasis added). Any other reading of this letter would be nonsensical because it would entail reading the letter to state simultaneously that the CIA both refused to confirm and confirmed the existence of responsive records reflecting a classified connection to the CIA.
Since the Court interprets the CIA's initial response letter to not have established the existence or nonexistence of responsive records that would reveal a classified connection to the CIA, the CIA did not waive its ability to issue a Glomar response to those records.
In addition to their waiver argument, the plaintiffs contend that "CIA's invocation of [FOIA] Exemption (b)(1) fails for both a procedural and a substantive reason." Pls.' Opp'n at 12 (No. 11-2072).
The CIA responds that plaintiffs improperly "equate the `Glomar fact' with every other document that an agency classifies pursuant to the Executive Order" because "an agency's Glomar response is fundamentally different in nature, as it arises solely in the context of a response to a request for records." Defs.' Reply at 8 (No. 11-2072). In contrast to the plaintiffs, the CIA takes the position that "the Glomar response is merely a response to a request for records, not a classified record itself." Id. In this same vein, the CIA contends that the plaintiffs' position is in conflict with well-settled FOIA law. In particular, the CIA argues that since a Glomar determination "does not exist independently of the original request for the responsive records" and because "[p]laintiffs' argument would effectively require CIA to create [a] single piece of paper and apply classification markings every time it [issues a Glomar response]," the plaintiffs' argument violates the principle that "FOIA `does not obligate agencies to create or retain documents.'" Id. at 8-9 (quoting Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 152, 100 S.Ct. 960, 63 L.Ed.2d 267 (1980)).
Executive Order 13,526 "prescribes a uniform system for classifying, safeguarding, and declassifying national security information" and recognizes that "throughout our history, the national defense has required that certain information be maintained in confidence in order to protect our citizens, our democratic institutions, our homeland security, and our interactions with foreign nations." Exec. Order No. 13,526, 75 Fed.Reg. 707 (Dec. 29, 2009). It provides that "information may be originally classified" if four conditions are met:
Id. § 1.1(a). Also, at the time that information is originally classified, a number of items must also "be indicated in a manner that is immediately apparent," such as the classification level, the "agency and office of origin," the date for declassification, and a "concise reason for classification." Id. § 1.6; see also id. § 1.5 (requiring original classification authority to "establish a specific date or event for declassification" of classified information). Additionally, although the ability to issue a Glomar response in response to a FOIA request was first established through the case law of this Circuit, see Phillippi v. CIA, 546 F.2d 1009, 1012-13 (D.C.Cir.1976), Executive Order 13,526 also specifically permits agencies to issue Glomar responses. See Exec. Order 13,526 § 3.6(a) ("An agency may refuse to confirm or deny the existence or nonexistence of requested records whenever the fact of their existence or nonexistence is itself classified under this order or its predecessors."). In this case, the plaintiffs complain that the CIA has failed to present evidence that it satisfied certain requirements for proper administrative handling of classified information under Executive Order 13,526, namely, establishing when the Glomar fact was classified and when it will be declassified. See Pls.' Opp'n at 13 (No. 11-2072).
The resolution of this issue is complicated first by the fact that both sides find significant support for their respective positions. The plaintiffs' position is supported by the text of Executive Order 13,526, which clearly states that "[a]t the time of original classification," the classifying authority must, inter alia, indicate when the information will become declassified.
This issue is complicated further by the fact that, although Executive Order 13,526 ostensibly applies to all "national security information" — tangible or intangible — the Order's requirements regarding a date of declassification clearly presume that such information has already been reduced into a tangible medium, such as a document or other type of record. For example, section 1.5 of the Order, which requires a classification authority to "establish a specific date or event for declassification," speaks of "information" being "marked" and at one point interchangeably uses the words "information" and "document." See Exec. Order 13,526 § 1.5. Furthermore, section 1.6 of the Order, which requires certain classification markings, states that all such markings "shall be indicated in a manner that is immediately apparent" and also uses the words "document" and "record" as synonyms for "information." See id. § 1.6. The Order's implicit assumption that all classified information is in a tangible form is fundamentally incompatible with the nature of a Glomar response, which is "an intangible piece of information." Pls.' Opp'n at 12 (No. 11-2072); see also Phillippi, 546 F.2d at 1013 ("When the [CIA]'s position is that it can neither confirm nor deny the existence of the requested records, there are no relevant documents for the court to examine other than the affidavits which explain the [CIA]'s refusal."). This dilemma highlights the uniqueness of Glomar responses: Not only are Glomar responses intangible forms of classified information, but the CIA is correct that they are also "fundamentally different in nature" than other classified information because they "arise[] solely in the context of a response to a request for records." Defs.' Reply at 8 (No. 11-2072). For these reasons, and also because it would be contrary to longstanding FOIA law to require agencies to create records in response to FOIA requests, the Court holds that, in order to issue a Glomar response, an agency need not create or maintain any tangible records.
Even so, the question remains whether an agency must establish a timeline for the declassification of a Glomar fact in order to issue a Glomar response under FOIA Exemption 1, assuming that such a timeline could be established without the need to create tangible records. On the one hand, the plaintiffs are correct that a fundamental precept of classifying sensitive information is that "[n]o information may remain classified indefinitely." Exec. Order 13,526 § 1.5(d). The Court, however, concludes that the requirement in Executive Order 13,526 to establish a declassification timeline is not an absolute prerequisite to classifying information. Rather, a timeline for declassification and other classification markings are only required once information has already been properly classified. Compare Exec. Order 13,526 § 1.1(a) (setting forth "conditions" under which "[i]nformation may be originally classified"), with id. §§ 1.5-1.6 (requiring certain actions to be taken "[a]t the time of original classification"). Thus, although an agency may not be in full compliance with Executive Order 13,526 by failing to establish a declassification timeline for Glomar facts, that failure does not prevent the agency from relying on FOIA Exemption 1 to issue a Glomar response to a FOIA request.
Having resolved the plaintiffs' procedural challenge to the CIA's Glomar response under FOIA Exemption 1, the Court will now discuss the plaintiffs' substantive challenge. In this regard, the plaintiffs take issue with the CIA's justification for invoking FOIA Exemption 1 to issue its Glomar response. The CIA explains its justification as follows: First, "if the CIA admits that it possesses covert intelligence information about a particular individual, the CIA essentially admits that one or more of his activities have been detected by the CIA." First Meeks Decl. ¶ 37. "Such an acknowledgement alerts this individual that he must take countermeasures to make his future activities undetectable by the CIA." Id. On the other hand, "if the CIA denies that it possesses intelligence information about a particular individual who indeed should be of intelligence interest to the CIA, the CIA essentially admits to the individual that his efforts to conceal his activities have been successful" and thus "this individual would know that he could continue to act with impunity." Id. ¶ 38. Due to this conundrum, "the mere confirmation or denial of the existence of any other responsive records would reveal a classified fact: namely, whether the CIA has maintained covert relationships with Plaintiffs or whether the CIA has gathered intelligence on Plaintiffs." Id. ¶ 27.
The plaintiffs argue, however, that this justification does not apply to Mobley because he is not and "should not be of intelligence interest to the U.S. Intelligence Community." Pls.' Opp'n at 15 (No. 11-2072). The plaintiffs contend, in a highly conclusory fashion, that Mobley "clearly is not undertaking any `activities,' and so does not fit into this [first] category" and "[a]s for the second category, the `efforts to conceal his activities' that have been successful so far consist entirely of not doing anything wrong." Id. at 14 (emphasis omitted). The plaintiffs' only support for this argument is an internal e-mail
This argument need not detain the Court long. The CIA is correct to argue that "plaintiffs' argument misunderstands both the Glomar response and the scope of the information that CIA's Glomar response seeks to protect." Defs.' Reply at 11 (No. 11-2072). As the CIA explains, even if the plaintiffs were correct (i.e., that Mobley has done nothing wrong and should not be of intelligence interest to the CIA), "CIA could not acknowledge as much in this case and then issue Glomar responses in those cases in which the agency did have responsive records or the person was an intelligence source or target of the United States," because "such responses over time would effectively reveal who is and is not an intelligence source or target." Id. Hence, the very nature of the Glomar posture requires that agencies categorically refuse to either confirm or deny the existence of responsive records that would reflect a classified or unacknowledged affiliation with a person because confirmation or denial that such records exist has the potential to harm national security, in and of itself. The plaintiffs ask the Court to require the CIA to "attest that Mobley was or should have been a subject of intelligence interest," in order for the CIA to be entitled to summary judgment, Pls.' Surreply at 5 (No. 11-2072), but this once again misunderstands the purpose of a Glomar response. As the CIA logically explains, the CIA may simply not know that a given person should be of intelligence interest at any given time, which is precisely why Glomar responses must be categorical. See Defs.' Reply at 12-13 (No. 11-2072) ("Among the numerous people in the world who CIA does not target for collection at any particular time, CIA cannot possibly know for certain who might seek to harm the United States (and who would thus make malicious use of CIA's confirmation that it has no records about them) and who is completely benign....").
To the extent that the plaintiffs ask this Court to second-guess the CIA's statements by finding on its own "that Plaintiffs should not have been of intelligence interest," Pls.' Opp'n at 16 (No. 11-2072), their request is inappropriate. As the D.C. Circuit has held, "in the FOIA context, we have 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 v. U.S. Dep't of Justice, 331 F.3d 918, 927 (D.C.Cir.2003). "The CIA's arguments need only be both `plausible' and `logical' to justify the invocation of a FOIA exemption in the national
Mobley challenges the DIA's Glomar response with arguments identical to those raised against the CIA's Glomar response. First, Mobley argues that, as a procedural matter, "DIA has not demonstrated that it followed the appropriate steps when determining that the fact of the existence or nonexistence of responsive records ... is classified." Pl.'s Opp'n at 3 (No. 11-2073). Second, Mobley contends that the DIA's substantive justification for its Glomar response under FOIA Exemption 1 is illogical because "Mobley should not be of intelligence interest to the U.S. Intelligence Community." Id. at 5-8. These arguments fail as to the DIA for the same reasons these arguments failed as to the CIA. See supra Part III.B.1(b)-(c). The DIA has logically explained in a sworn affidavit that the "Glomar fact" at issue — whether responsive records exist revealing a classified or otherwise unacknowledged relationship with Mobley — is properly classified under Executive Order 13,526. Therefore, the DIA's Glomar response was appropriate.
The next area in which the plaintiffs challenge the defendant agencies' responses is regarding the agencies' determinations to withhold certain responsive records or portions thereof. All four of the defendants decided to withhold certain responsive records (or portions thereof), and so the Court will discuss each agency's withholding decisions in turn.
The Court will begin by discussing the withholding decisions of the CIA. As discussed above, the DIA referred several responsive records to the CIA, and the CIA released all but six of those records to Mobley. The six records were withheld in full under FOIA Exemption 3, which exempts from disclosure all records "specifically exempted from disclosure by statute" as long as that statute either "requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue" or "establishes particular criteria for withholding or refers to particular types of matters to be withheld." 5 U.S.C. § 552(b)(3); see also Third Meeks Decl. ¶ 7 ("The Agency determined that the remaining six records must
In this regard, the CIA has cited two statutes that it says independently justify its invocation of FOIA Exemption 3: the National Security Act of 1947 and the Central Intelligence Agency Act of 1949 (the "CIA Act"). Section 102A(i)(1) of the National Security Act provides that "[t]he Director of National Intelligence shall protect intelligence sources and methods from unauthorized disclosure." 50 U.S.C. § 403-1(i)(1). Additionally, Section 6 of the CIA Act provides that "the [CIA] shall be exempted from ... the provisions of any other law which requires the publication or disclosure of the organization, functions, names, official titles, salaries, or numbers of personnel employed by the [CIA]." 50 U.S.C. § 403g. The CIA states that the six records at issue "reveal certain sensitive but unclassified intelligence sources and methods," and therefore they are protected by the National Security Act because "Executive Order 12,333 charges the CIA with carrying out [the National Security Act's] directive" and are also exempt under the CIA Act because "Open Source Intelligence (`OSINT') is a core function of the CIA." Third Meeks Decl. ¶¶ 9, 12-13.
Mobley objects to the CIA's reliance on both statutes as grounds to invoke FOIA Exemption 3, and the Court will begin by discussing the National Security Act. With respect to that statute, Mobley objects that the CIA is not authorized to invoke the National Security Act for purposes of the FOIA because that statute only gives authority to the Director of National Intelligence ("DNI") to protect intelligence sources and methods, not the CIA. See Pl.'s Opp'n at 12-13 (No. 11-2073); see also id. at 8-12.
In making this argument, Mobley relies heavily on three cases, two of which are from this Circuit. First, Mobley cites Talbot v. CIA, 578 F.Supp.2d 24 (D.D.C.2008), in which the State Department presented an express authorization from the DNI to support its argument that it could invoke the National Security Act. The court stated in a footnote that "[t]he [National Security Act] requires the Director of National Intelligence (`DNI') — not the State Department — to protect intelligence sources
The CIA responds that "the DNI need not personally authorize every agency's withholding of intelligence sources and methods information pursuant to the National Security Act." Defs.' Reply at 9 (No. 11-2073). Rather, the CIA contends that "[t]he DNI's duty to protect intelligence sources and methods ... requires implementation of general measures designed to ensure that all members of the intelligence community prevent unauthorized disclosure of such information." Id. The CIA argues that "under both the current statute and its predecessor, this Circuit and other courts have upheld other intelligence community agencies' invocation of the National Security Act to protect intelligence sources and methods." Id. at 9-10 (collecting cases). In particular, the CIA draws the Court's attention to the D.C. Circuit's decision in Larson v. Department of State, 565 F.3d 857, 868-69 (D.C.Cir. 2009), which upheld the National Security Agency's authority to withhold certain records under FOIA Exemption 3 under three statutes, including the provision of the National Security Act relied on by the CIA in the instant case.
The CIA has the better of the argument on this point. In addition to Larson, another D.C. Circuit case cited by the CIA, which Mobley has chosen not to address, upheld the CIA's reliance upon 50 U.S.C. § 403-1(i)(1) to invoke FOIA Exemption 3 where the withheld information qualified as "intelligence sources and methods." See ACLU/DOD, 628 F.3d at 618-26.
Mobley also objects that "CIA has made no claim that these OSC records are not located in a system of records or are exempt under the Privacy Act." Pl.'s Opp'n at 18 (No. 11-2073). The CIA explains that, because the six OSC records were located by the DIA, "the relevant question for purposes of the Privacy Act is whether they were located in a DIA system of records, and if so, whether that system of records has been exempted from the access provisions of the Privacy Act." Defs.' Reply at 14 (No. 11-2073). The defendants cite the Court to the DIA's second sworn declaration, which explains that the 41 OSC records (including the six withheld records) "were located in DIA's Web Intelligence Search Engine (`WISE') database," which is "DIA's repository for electronic message traffic, holding in excess of 60 million such messages addressed to or originating from DIA." Second Decl. of Alesia Y. Williams ("Second Williams Decl.") ¶ 4, ECF No. 50-1 (Oct. 12, 2012) (No. 11-2073). Ms. Williams, the DIA's FOIA chief, explains that the WISE database is not a Privacy Act "system of records" because "DIA does not organize records in WISE by individuals who may be mentioned in those records, nor does DIA retrieve records about individuals from that database by use of an individual's name or personal identifier as a matter of practice." Id.
Mobley, however, submits two objections to the DIA's explanation. First, he argues that, since the records originated in the OSC, the Court must determine whether the OSC is a "Privacy Act system of records." Pl.'s Surreply at 9 (No. 11-2073). Second, he contends that, even assuming that the WISE database is the proper database to consider for Privacy Act purposes, the WISE database should be considered a system of records because "the evidence suggests that these records are compiled for investigatory purposes," which, according to Mobley, strongly suggests that they are being kept as a system of records. Id. at 10-11.
Furthermore, Mobley has presented no evidence that would create a genuine issue of material fact regarding whether the WISE database is a "system of records." The DIA's explanation regarding the WISE database is logical and is entitled to presumption of good faith. See, e.g., SafeCard, 926 F.2d at 1200 (holding that "[a]gency affidavits are accorded a presumption of good faith"). All that Mobley offers to rebut the DIA's explanation is the unsupported assertion that "[t]he evidence suggests that these records are compiled for investigatory purposes." Pl.'s Surreply at 10 (No. 11-2073). Mobley's only "evidence" in support of this assertion consists of the conclusory statement that the WISE system "includes open source media reports about intelligence targets," and therefore "[i]t defies credulity that [such a] system ... would not be searched for information about said targets." Id. at 10 n. 8. Ms. Williams's declaration, however, establishes that the WISE database contains "electronic message traffic," including electronic messages that circulate open-source intelligence publications to "elements of the U.S. Intelligence Community on a daily basis." Second Williams Decl. ¶ 4. Since the WISE database is essentially a database of e-mail messages, some of which are messages containing "open source media articles," id., it is logical that such messages would not be organized by the name or personal identifying information of individuals discussed in such articles, and Mobley has offered no evidence to contradict this explanation.
Next, the Court will discuss the withholding determinations of the State Department. In total, State withheld 117 documents in whole or in part under a variety of FOIA and Privacy Act exemptions. State has indexed and explained its reasons for withholding this material in the sworn declaration of Sheryl Walter,
The plaintiffs first argue that State "improperly applied the Privacy Act." Pls.' Opp'n at 29 (No. 11-2072). In particular, the plaintiffs contend that State's determination that "even though some records were clearly records about Plaintiffs, information within those records was not subject to the Privacy Act" was wrong. Id. at 30. In support of its determination, State cites the D.C. Circuit's holding that, when materials pertain to both a Privacy Act requester and other individuals from whom the agency has received no written consent permitting disclosure, the Privacy Act's prohibition on disclosing information without written consent "must take precedence," and the portions of the record pertaining to those third parties must be withheld. See Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1121 n. 9 (D.C.Cir.2007); see also Defs.' Reply at 24 (No. 11-2072). The plaintiffs do not discuss the Circuit's holding in Sussman, but rather point to a district court case decided several years before Sussman, where the court declined to hold that "information contained in one individual's record is exempt from the disclosure requirements of the Privacy Act simply because the same information is also contained in another individual's records." Henke v. Dep't of Commerce, No. 94-0189, 1996 WL 692020, at *4 (D.D.C. Aug. 19, 1994), aff'd, 83 F.3d 1445 (D.C.Cir.1996). Whatever weight the Henke decision might otherwise have, its reasoning did not survive the Circuit's clear holding in Sussman. Therefore, the plaintiffs are not entitled to the information contained in certain State documents that is about third-party individuals who have not given their written consent to have their information disclosed.
Next, the plaintiffs take issue with State's invocation of FOIA Exemption 1 with respect to twenty-two documents, in whole or in part, which the plaintiffs say "is supported only by conclusory allegations of unspecified harm or expectations of confidence." Pls.' Opp'n at 38 (No. 11-2072). Specifically, the plaintiffs contend that a number of documents were not properly classified under Executive Order 13,526, based on the statements made in Ms. Walter's declarations. See id. at 39.
The plaintiffs' first argument in this regard is that "the record does not support a finding that [certain records withheld under FOIA Exemption 1] are properly classified according to E.O. 13526 § 1.7(d)." Id. Section 1.7(d) of the Executive Order provides a procedure for classifying documents after they have been requested through the FOIA or the Privacy Act. In that situation, a record may only be classified "if such classification meets the requirements of this order and 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 designated under section 5.4 of this order." Exec. Order 13,526 § 1.7(d). Based on the requirements of section 1.7(d), the plaintiffs contend that Ms. Walter does not have the authority to classify documents under that section "on her own." Pls.' Opp'n at 39 (No. 11-2072). State responds by citing to a State Department regulation that officially authorizes the Deputy Assistant Secretary for Records and Publishing Services "to be the official to classify information on a document-by-document
The Court disagrees with the plaintiffs' cramped reading of Executive Order 13,526. Nothing in the text of the Order evinces any intent to require the senior agency official to direct others to make document-by-document classification determinations "each time such classification is desired and for each document." Id. (emphasis omitted). The Order simply states that the document-by-document classification of records subject to section 1.7(d) must be done "under the direction of the agency head, the deputy agency head, or the senior agency official." Exec. Order 13,526 § 1.7(d). Absent any affirmative evidence that the Executive Order intended to prohibit delegation of the authority to perform this document-by-document classification, the delegation is presumptively permissible. See NLRB v. Duval Jewelry Co. of Miami, 357 U.S. 1, 7, 78 S.Ct. 1024, 2 L.Ed.2d 1097 (1958) ("[T]he law does not preclude practicable administrative procedure in obtaining the aid of assistants in the department." (internal quotation marks omitted)); U.S. Telecom Ass'n v. FCC, 359 F.3d 554, 565 (D.C.Cir.2004) ("When a statute delegates authority to a federal officer or agency, a subdelegation to a subordinate federal officer or agency is presumptively permissible absent affirmative evidence of a contrary congressional intent."); see also Darui v. U.S. Dep't of State, 798 F.Supp.2d 32, 42 (D.D.C.2011) (upholding authority of subordinate officer in State Department to classify documents under E.O. 13,526 § 1.7(d)). Therefore, the Court concludes that State complied with Executive Order 13,526 § 1.7(d) when it established that Margaret Grafeld, the Deputy Assistant Secretary for Global Information Services (formerly Records and Publishing Services), "personally considered" the withheld portions of the three documents contested by the plaintiffs and determined that their classification needed to be upgraded after Mobley had already filed his FOIA/PA request. See Supplemental Decl. of Sheryl L. Walter ("Second Walter Decl.") ¶¶ 23-25, ECF No. 49-5 (No. 11-2072).
Second, the plaintiffs argue that State has not convincingly demonstrated that a number of documents were properly classified under Executive Order 13,526 § 1.4(b) as "foreign government information." See Pls.' Opp'n at 41-43 (No. 11-2072). Foreign government information includes "information provided to the United States Government by a foreign government or governments, an international organization of governments, or any element thereof, with the expectation that the information, the source of the information, or both, are to be held in confidence." Exec. Order. 13,526 § 6.2(s).
In the declarations of Ms. Walter, she explains that the information withheld as foreign government information "reveals observations and concerns expressed in confidence" and other "sensitive information" relayed to the U.S. Government by various Yemeni officials. See Second Walter Decl. ¶¶ 23-25. Ms. Walter further explains that this information was all provided "with an expectation of confidentiality" because, absent such an expectation, "foreign government officials (such as the Yemenis here) would be unwilling to share this kind of confidential information with Department officials if this kind of information were required to be released publicly under FOIA." Id. ¶¶ 23-24; see also id. ¶ 25 (explaining that "[t]his type of information would not have been provided absent an expectation of confidentiality, and the Department will be unable to obtain such confidences from foreign officials in the future if such officials fear that this kind of information may be compelled to be released publicly"). The State Department's explanation of why this information was conveyed in confidence is both logical and plausible, considering the nature of the information, and courts within this Circuit have consistently upheld the State Department's invocation of FOIA Exemption 1 with respect to similar information. See, e.g., Am. Civil Liberties Union v. Dep't of State, 878 F.Supp.2d 215, 222 (D.D.C.2012) (upholding State's withholding information "concerning, among other things, discussions, assessments, or recommendations relating to bilateral affairs with, or the policies, political situation, or security situation" of various nations); Abuhouran v. U.S. State Dep't, 843 F.Supp.2d 73, 79 (D.D.C.2012); Darui, 798 F.Supp.2d at 40-41 (upholding State's withholding of a "letter from the Ambassador of Saudi Arabia to the United States"); Gov't Accountability Project v. U.S. Dep't of State, 699 F.Supp.2d 97, 102 (D.D.C.2010).
Upholding the State's withholding of such information in the instant case does not necessarily endorse the sweeping principle that "all exchanges of information between foreign government officials and the United States come with implied grants of confidentiality." Pls.' Opp'n at 42 (emphasis omitted). Rather, Ms. Walter's sworn declaration sufficiently explains why confidentiality is paramount when it comes to the particular information contained in the documents at issue, i.e., the "observations and concerns" expressed by foreign officials to the United States. See Second Walter Decl. ¶¶ 23-25. Ms. Walter's declaration supports the principle that, in the often fragile arena of foreign relations, an implied understanding of confidentiality is necessary to ensure that nations can communicate their impressions, concerns, negotiating positions, or other sensitive matters without fear that those matters will then be publicly disclosed. Thus, the Court concludes that State properly classified the three documents at issue under Executive Order 13,526 § 1.4(b).
Finally, the plaintiffs argue that information withheld from two documents was improperly classified pursuant to Executive
The plaintiffs next challenge State's decision to withhold certain information under Privacy Act Exemption (d)(5), which forbids requesting parties from accessing "any information compiled in reasonable anticipation of a civil action or proceeding." 5 U.S.C. § 552a(d)(5); see also Pls.' Opp'n at 32-38 (No. 11-2072). The plaintiffs "concede that the challenged information was compiled in anticipation of a civil action or proceeding," but they contend instead that "such anticipation was not reasonable." Pls.' Opp'n at 32 (No. 11-2072) (emphasis omitted). Within this argument, the plaintiffs cite three specific aspects of State's invocation of Exemption (d)(5) that they believe are improper. First, the plaintiffs argue that State "falsely claims that `Mobley had in fact already brought suit against the U.S. Government, alleging that the Government had unlawfully arranged his detention,'" even though Mobley did not file any suit against the Government before filing the instant actions. See id. at 33. Second, the plaintiffs contend that certain information was improperly withheld from one document because the information consisted of an attorney's advice about potential testimony given in a case to which the State Department was not a party, which the plaintiffs say is not covered by Exemption (d)(5). Id. at 33-34. Third, the plaintiffs more generally contend that State's evidence to support a reasonable anticipation of a civil action or proceeding "falls far short of the `foreseeability' standard that governs the objective component of `reasonable anticipation' for the simple reason that it would be impossible for Plaintiffs to bring an adversarial action against any federal official, agency, or other entity for the reasons State allegedly fears." Id. at 34.
Privacy Act Exemption (d)(5) "speaks of `information,' a term that embraces facts as easily as it does deliberative processes" and therefore "does not admit of any distinction between" the two and "in no way incorporates civil discovery law." Martin v. Office of Special Counsel, 819 F.2d 1181, 1187 (D.C.Cir.1987). The exemption "protects documents prepared in anticipation of quasi-judicial administrative hearings" as well as "actions in the district courts." See id. at 1188. The exemption also extends to "investigatory documents" the creation of which is "premised on the possibility that prohibited practices will be uncovered, thereby warranting further action," even if no proceedings are in fact initiated. Gov't Accountability Project v. Office of the Special Counsel, No. 87-235, 1988 WL 21394, at *4 (D.D.C. Feb. 22, 1988).
As to the plaintiffs' first argument under Exemption (d)(5), State concedes that it was incorrect to assert that Mobley had already initiated litigation against the Government prior to filing the instant FOIA/PA actions. See Defs.' Reply at 27 n. 11 (No. 11-2072). Rather, "[t]he statements should have said that at least some State Department employees believed that
The plaintiffs' second objection to State's (d)(5) withholdings stands on firmer ground, but is likewise unavailing. The document at issue in that objection, No. O119, is "an email chain among Sana'a consular officers and Department of State officials in Washington," which discusses the possibility of State Department personnel testifying in an unspecified proceeding that related to Mobley. See First Walter Decl. ¶¶ 62-63; Pls.' Opp'n Ex. E at 10-11, ECF No. 40-5 (No. 11-2072). The material withheld under Exemption (d)(5) "concerns preliminary advice from Department of State attorneys to their client in the Office of Overseas Citizens Services concerning the possibility of consular officers testifying at the request of Mr. Mobley's attorney." First Walter Decl. ¶ 63. The plaintiffs say in their opposition that this unspecified proceeding was one "to which the agency would not be a party," Pls.' Opp'n at 34 (No. 11-2072) (emphasis omitted), which is consistent with the released portions of the document and is uncontested by State.
Even assuming that the withheld information was information prepared in anticipation of a proceeding to which State was a non-party, however, Privacy Act Exemption (d)(5) still applies. Although some authorities suggest that the traditional, discovery-based work-product privilege excludes materials prepared by non-parties to litigation, see, e.g., In re Cal. Pub. Utils. Comm'n, 892 F.2d 778, 781 (9th Cir.1989) (holding that Federal Rule of Civil Procedure 26(b)(3) "limits its protection to one who is a party (or a party's representative) to the litigation in which discovery is sought"), Privacy Act Exemption (d)(5) is broader than the traditional work-product privilege and "in no way incorporates civil discovery law." Martin, 819 F.2d at 1187; see also, e.g., Hernandez v. Alexander, 671 F.2d 402, 408 (10th Cir.1982) ("[Privacy Act Exemption (d)(5)] is not confined to a work-product privilege, but was meant to afford the broad protection its terms imply." (citing Smiertka v. U.S. Dep't of Treasury, 447 F.Supp. 221, 227-28 (D.D.C. 1978))). Therefore, it is reasonable to interpret Exemption (d)(5) to include "any information compiled in reasonable anticipation of a civil action or proceeding" that is prepared by either a potential party to such a proceeding or by a potential material participant in that same proceeding. Particularly when, as here, such information contains the mental impressions of an attorney concerning potential testimony in an anticipated proceeding, it makes no difference whether the recipient of those impressions is a party to the proceeding. All that matters for purposes of Exemption
Finally, the plaintiffs' third argument challenging State's Exemption (d)(5) withholdings misunderstands the test for determining what constitutes a "reasonable anticipation of a civil action or proceeding." Id. The plaintiffs reason that State's anticipation of litigation was unreasonable simply because the type of litigation anticipated would be highly unlikely to succeed. See Pls.' Opp'n at 34-37 (arguing that anticipated claims "would be impossible for Plaintiffs to bring," and would be, inter alia, "precluded by the Alien Tort Claims Act," "doomed to failure," "without a case," or "explicitly exclude[ed]" by certain statutes). Yet, the legal merits (or lack thereof) of an anticipated litigation are not the standard by which courts measure the reasonableness of a party's anticipation. Rather, the reasonableness of a party's anticipation of litigation is measured by, inter alia, the objective probability that litigation will be initiated, not the probability that such litigation, once initiated, will succeed. See, e.g., Willingham v. Ashcroft, 228 F.R.D. 1, 5 (D.D.C.2005) (anticipation of litigation was reasonable where plaintiff "initiated an adversarial action against the agency" and plaintiff would "likely bring litigation in the District Court" (emphasis added)). The plaintiffs ask the Court to assume too much by arguing that it is unreasonable for parties, particularly government agencies, to anticipate the potential filing of meritless or unsuccessful lawsuits. Such lawsuits are filed every day. Hence, State is correct to point out that a contrary rule "would make attorneys ... fear that they should not record their candid thoughts, advice, or impressions until they first determined that any feared lawsuit would be meritorious." Defs.' Reply at 26 (No. 11-2072). The Court thus concludes that the plaintiffs' objections to State's withholding under Privacy Act Exemption (d)(5) are unavailing, and therefore State is entitled to summary judgment as to those withholdings.
The plaintiffs originally raised a number of objections to State's withholdings pursuant to FOIA Exemptions 6 and 7(C). See Pls.' Opp'n at 44-46 (No. 11-2072). They later clarified, however, that they were withdrawing their objections to withholdings in seven of the eight documents about which they originally complained. See Errata at 1-2, ECF No. 48 (No. 11-2072). The plaintiffs' only remaining objection to State's withholdings under FOIA Exemptions 6 and 7(C) relate to an internal inconsistency in Ms. Walter's original declaration, which was discussing State's inadvertent withholding of Ms. Islam's passport number from a responsive record. See Defs.' Reply at 31 n. 15 (No. 11-2072). The statement at issue reads as follows: "Ms. Islam's passport number is inadvertently withheld. Release of this passport number would constitute a clearly unwarranted invasion of her personal privacy. It is therefore exempt from release under FOIA exemption (b)(6)." First Walter Decl. ¶ 147.
The plaintiffs latch on to this inconsistency to argue that it "is indicative of something far more insidious — Walter did not even review this statement before she signed it." Pls.' Opp'n at 45 (No. 11-2072). The plaintiffs then go on to accuse Ms. Walter of "simply cut[ting] and past[ing] from other locations without any thought to whether or not the specific information being withheld warranted such protection." Id. at 45-46. In this way, the plaintiffs openly concede that they challenge State's
Ms. Walter's inconsistency, which the plaintiffs admit was "a minor error" in a 67-page, 200-paragraph declaration, see Pls.' Surreply at 11 n. 7, does not have the sweeping consequences for which the plaintiffs advocate. The only situation in which the Court would withhold a presumption of good faith as to a sworn agency declaration is if the plaintiffs were able to present contrary evidence of bad faith. See, e.g., Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C.Cir.1981). The inconsistency in Ms. Walter's declaration is not evidence of bad faith, nor is it indicative of "a general sloppiness in the declassification or review process." See Afshar v. Dep't of State, 702 F.2d 1125, 1131 (D.C.Cir.1983). Indeed, considering the very limited nature of the apparently inadvertent oversight and Ms. Walter's subsequent explanation of the oversight, the Court is satisfied that there is no reason to revoke the presumption of good faith and substantial deference generally accorded to sworn agency affidavits in FOIA cases.
Finally, the plaintiffs challenge the State's decision to withhold certain information under FOIA Exemption 7(E), which covers "records or information compiled for law enforcement purposes" that "would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law." 5 U.S.C. § 552(b)(7)(E); see also Pls.' Opp'n at 46-48 (No. 11-2072). The plaintiffs contend that "[d]efendants have not met their burden of adequately demonstrating that the controverted information pertains to law enforcement methods unknown to the public," which courts have held is a requirement for exemption under Exemption 7(E). See Pls.' Opp'n at 47 (No. 11-2072); see also, e.g., Nat'l Whistleblower Ctr. v. Dep't of Health & Human Servs., 849 F.Supp.2d 13, 36 (D.D.C.2012) ("Exemption 7(E) thus generally protects those law-enforcement techniques and procedures that are `not well-known to the public.'" (quoting Judicial Watch, Inc. v. U.S. Dep't of Commerce, 337 F.Supp.2d 146, 181 (D.D.C.2004))).
The State Department has clarified, however, that "all of the information that has been withheld pursuant to Exemption 7(E) relates to either law enforcement techniques that are altogether unknown to the public, or to specific details of law enforcement techniques that are publicly known." Defs.' Reply at 29 (No. 11-2072). This position is supported by Ms. Walter's second sworn declaration, which also provides the example of one particular law enforcement technique cited by the plaintiffs: what are known as "name checks." See Second Walter Decl. ¶ 30; see also Pls.' Opp'n at 47 ("The Court should be especially suspicious of the suggestion that a simple `Name Check' is an unknown technique."). Ms. Walter
In summary, all of the plaintiffs' arguments challenging State's withholding decisions are insufficient to overcome the justifications put forward by the agency, and the State Department is therefore entitled to summary judgment regarding each piece of information withheld under the FOIA and the Privacy Act.
In addition to their objections to information withheld by the State Department, the plaintiffs also object to the determination of the Office of the Provost Marshal General ("OPMG") to withhold twelve documents in their entirety, eleven of which were referred to the OPMG by State. See Pls.' Opp'n at 49-51 (No. 11-2072); Pl.'s Opp'n at 18-20 (No. 11-2073). The OPMG's justifications for withholding these records is not completely clear from the information available on the public docket. The OPMG's sworn declarant, John Hargitt, states that all twelve documents are properly classified under Executive Order 13,526, and therefore are exempt from disclosure under FOIA Exemption 1 and Privacy Act Exemption (k)(1). See First Hargitt Decl. ¶¶ 6-7; Second Hargitt Decl. ¶¶ 7-8. Mr. Hargitt further explains that, due to the twelve documents' "highly sensitive and classified nature," he "cannot publicly describe these records or articulate the basis for their classification in greater detail than I have here." First Hargitt Decl. ¶ 8; see also Second Hargitt Decl. ¶ 9. To explain the OPMG's justification for withholding these documents in more detail, Mr. Hargitt has submitted two additional sworn declarations to the Court, ex parte and in camera. See Notice of Ex Parte, In Camera Filing, ECF No. 37 (No. 11-2072); Notice of Ex Parte, In Camera Filing, ECF No. 44 (No. 11-2073).
Due to the limited amount of information available to the plaintiffs about the OPMG's withholdings, the plaintiffs have offered three potential ways in which the OPMG's withholdings may have been improper. First, the plaintiffs contend that it is unclear when these documents became classified and, if they were not classified until after the plaintiffs' FOIA/PA request, the OPMG was required to comply with Executive Order 13,526 § 1.7(d), as discussed previously. See Pls.' Opp'n at 50 (No. 11-2072); Pl.'s Opp'n at 18 (No. 11-2073); see also supra Part III.C.2(b). Depending on what is stated in Mr. Hargitt's in camera declarations, the plaintiffs argue therefore that "these classification determinations may not satisfy the procedural requirements of E.O. 13526 § 1.7." Pls.' Opp'n at 50 (No. 11-2072). Second, the plaintiffs theorize that "the information in these records may not properly meet the requirements of E.O. 13526 § 1.4, especially if it is claimed to be `foreign government information.'" Id. Finally, the plaintiffs contend more broadly that since "the evidence does not explain why OPMG possesses records about Plaintiffs in the first place ... its maintenance of such records
After reviewing the ex parte, in camera declarations of Mr. Hargitt, the Court is satisfied that the records withheld by the OPMG were properly classified under Executive Order 13,526 and were subject to the OPMG's mandate. Thus, all of the plaintiffs' proffered objections to the OPMG's decision to withhold these records are unavailing.
Lastly, the Court will discuss Mobley's objections to the withholding determinations of the FBI. As discussed above, the FBI located eighty-five pages of records responsive to Mobley's FOIA/PA request, and it withheld portions of those records pursuant to one or more of the following: FOIA Exemptions 1, 6, and 7(C); and PA Exemption (j)(2). See First Argall Decl. ¶ 24.
Mobley's first challenge to the FBI's withholdings has to do with a single, three-page document, which Mobley says was previously officially disclosed publicly and therefore "not subject to withholding under any exemption." Pl.'s Opp'n at 24 (No. 11-2073). Mobley asserts that the document in question "was provided in full by FBI to the Yemeni government, who then provided it to a private party in Yemeni court, who then filed it on the court record." Id.
"[W]hen information has been `officially acknowledged,' its disclosure may be compelled even over an agency's otherwise valid exemption claim." Fitzgibbon v. CIA, 911 F.2d 755, 765 (D.C.Cir.1990). "[A]lthough an agency bears the burden of proving that a FOIA exemption applies to a given document, a plaintiff asserting that information has been previously disclosed bears the initial burden of pointing to specific information in the public domain that duplicates that being withheld." Pub. Citizen v. Dep't of State, 11 F.3d 198, 201 (D.C.Cir.1993) (citing Afshar, 702 F.2d at 1130). In order to constitute an official acknowledgement, "the information requested must," inter alia, "already have been made public through an official and documented disclosure" because "in the arena of intelligence and foreign relations there can be a critical difference between official and unofficial disclosures." Fitzgibbon, 911 F.2d at 765.
In response to Mobley's argument, the FBI has explained, through the sworn declaration of Dennis Argall, the acting FOIA chief at the FBI, that there are several reasons to conclude that the document in question was not officially released by the FBI. First, "the FBI has no evidence indicating that the document was provided by the FBI to the Yemeni Government" and "[t]he FBI only learned that this document had somehow been released in unredacted form after Plaintiff's Counsel brought it to the FBI's (and this Court's) attention." Second Argall Decl. ¶ 10. Mr. Argall further explains that "[t]he FBI does not authorize the disclosure of FBI information by foreign countries without approval from designated FBI officials," yet "the FBI has no record that any such approval or release authorization was provided for this document." Id. Finally, Mr. Argall states that "[a]n authorized document release by the FBI to a foreign government would bear appropriate FBI dissemination control markings," but the unredacted version
Mobley does not contest the FBI's statements regarding the absence of appropriate FBI dissemination control markings or the absence of any FBI records documenting official approval or authorization for the release of the document in question. Rather, Mobley insists that the FBI must establish that it has completed its official investigation into how this document found its way into the hands of the Yemeni government before the Court may grant the FBI summary judgment on this issue. See Pl.'s Surreply at 13-14 (No. 11-2073). The final results of the FBI's investigation are essentially irrelevant, however, so long as the FBI has been able to definitively establish that it did not officially disclose this document to the Yemeni government. Mr. Argall's statements in his sworn declaration are sufficient to conclude that there was no official disclosure of the document in question, primarily due to the absence of two fundamental indicia of official disclosure, i.e., appropriate dissemination control markings on the document itself, and internal records documenting approval for an official disclosure. These indicia are important because the D.C. Circuit has made clear that, in order to constitute an official acknowledgement that waives the protections of FOIA exemptions, a disclosure must be both "official" and "documented." Fitzgibbon, 911 F.2d at 765 (emphasis added). Mobley's bare allegations that the FBI was the Yemeni government's source for the document in question are insufficient to overcome the evidence presented by the FBI to the contrary. Therefore, the Court concludes that the document in question was not officially disclosed, and thus the FBI has not waived its ability to claim FOIA exemptions as to that document.
Next, Mobley takes issue with the FBI's invocation of Privacy Act Exemption (j)(2) to withhold portions of certain responsive records. That exemption provides that agencies may exempt any system of records from the Privacy Act, which is "maintained by an agency or component thereof which performs as its principal function
The FBI follows Mobley down this primrose path, defending its law enforcement mission as a legitimate one, see Defs.' Reply at 21 (No. 11-2073), but such a defense is unnecessary. The language of Exemption (j)(2) clearly permits agencies, including the FBI, to exempt entire systems of records from the Act's disclosure provisions, and the only precondition for such an exemption is that the agency or component that maintains the system must "perform[] as its principal function any activity pertaining to the enforcement of criminal laws." 5 U.S.C. § 552a(j)(2). Therefore, the FBI is not required to justify any particular law enforcement mission implicated by a particular document, so long as the document in question was located in a system of records that has been properly exempted from the disclosure provisions of the Privacy Act.
Mobley next objects to the FBI's withholding of certain information under FOIA Exemption 1, reciting many of the same arguments that he used to challenge the State Department's invocation of that same exemption. See supra Part III. C.2(b). In other words, Mobley argues that "FBI's invocation of Exemption (b)(1) is improper both procedurally and substantively." Pl.'s Opp'n at 27 (No. 11-2073). Procedurally, Mobley contends that "the information was not properly classified in accordance with E.O. 13526 § 1.7(d), as it was classified after receipt of Mobley's FOIA/PA request by someone who was not the `senior agency official.'" Id. This is the same non-delegation argument raised by the plaintiffs in challenging the State Department's invocation of FOIA Exemption 1. See supra Part III. C.2(b). Since the Court has already rejected this argument with respect to the State Department, see id., and because the FBI has established that the authority to classify information under Executive Order 13,526 § 1.7(d) has been properly delegated to the official who classified the documents at issue here, see Second Argall Decl. ¶¶ 12-15, the Court likewise rejects Mobley's argument with respect to the FBI.
To further explain the agency's withholding decisions pursuant to FOIA Exemption 1, the FBI has "submitted the classified Ex Parte, In Camera Declaration of Dennis J. Argall." See Notice of Ex Parte, In Camera Filing, ECF No. 26 (No. 11-2073). After reviewing that ex parte, in camera declaration, the Court has concluded that the relevant records were properly classified pursuant to Executive Order 13,526, and therefore these records were properly withheld from disclosure under FOIA Exemption 1. Since the Court concludes that the sworn ex parte, in camera declaration submitted by the FBI is sufficient to uphold the FBI's withholding decisions under FOIA Exemption 1, the Court need not review the documents themselves in camera, as Mobley suggests. See, e.g., Hayden v. NSA, 608 F.2d 1381, 1387 (D.C.Cir.1979) ("When the agency meets its burden by means of affidavits, in camera review is neither necessary nor appropriate.").
The final area of FBI exemptions challenged by Mobley are those made pursuant to FOIA Exemptions 6 and 7(C). FOIA Exemption 6 protects from disclosure "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(6). FOIA Exemption 7(C) protects from disclosure "records or information compiled for law enforcement purposes" that "could reasonably be expected to constitute an unwarranted invasion of personal privacy." Id. § 552(b)(7)(C). There is a great deal of overlap between these two exemptions, and thus the Court will discuss them together.
The FBI withheld three categories of information from responsive records under FOIA Exemptions 6 and 7(C), all of which Mobley says were withheld improperly: "(1) Information regarding FBI Special Agents and support personnel; (2) Information regarding third parties merely mentioned; and (3) Information regarding foreign law enforcement personnel." Pl.'s Opp'n at 31 (No. 11-2073). With respect to the first category, Mobley contends that the "FBI has no authority to withhold other federal employees' names, and some of these withholdings are of such names." Id. As to the second category, Mobley states that certain information redacted from one of the FBI records contains the names of people authorized to receive records about Mobley. See id. Mobley clarifies that his objection to this withholding is that "information being withheld was previously released and therefore not subject
Taking each set of objections in turn, the Court will first address Mobley's objection to the first category of withheld information. At its core, Mobley's argument as to the first category of information is remarkably hyper-technical: He does not dispute that release of the redacted names would be a clearly unwarranted invasion of personal privacy, and he does not contend that there is any countervailing public interest in releasing the withheld names. In truth, Mobley does not even really question the FBI's authority, as a general matter, to withhold the names of non-FBI personnel under FOIA Exemptions 6 and 7(C). All that Mobley argues is that the "FBI's only justification for withholding these names is that they were `Names and/or Identifying Information of FBI Special Agents and Support Personnel.'" Pl.'s Surreply at 15 (citing First Argall Decl. ¶¶ 48-50). He goes on to argue that the "FBI cannot now change its argument to include non-FBI personnel when the only relevant justification in its sworn declarations applies solely to FBI personnel." Id. Mobley's argument, however, is unavailing. It is simply untrue that "the only relevant justification in [the FBI's] sworn declaration applies solely to FBI personnel." Id. Although it is true that the primary focus of the FBI's justification was FBI Special Agents, Mr. Argall's sworn declaration states, inter alia, that individuals subjected to law enforcement actions "may seek revenge on the agents and other federal employees involved in a particular investigation." First Argall Decl. ¶ 48 (emphasis added). It is for this reason, among others, that the FBI determined that release of names and personal identifying information would constitute a clearly unwarranted invasion of personal privacy. See id. The FBI's justification surely encompasses any federal employees that were involved in the interview of Mobley, including any non-FBI personnel, and therefore Mobley's objection to the first category of documents is fatally flawed.
Mobley's objection to the second category of documents is essentially an argument that the State Department has already official disclosed the names of all of the individuals authorized to receive records about Mobley, and therefore the FBI has no authority to withhold that information under the FOIA. See Pl.'s Surreply at 16 (No. 11-2073) ("Mobley's argument was merely that the information being withheld was previously released and therefore not subject to withholding."). Construing this as an "official disclosure" argument, the Court concludes that such an argument is without merit because the alleged prior disclosure of this information was done by the State Department, not the Department of Justice. See id. (acknowledging that "the information [the FBI] is withholding was included in a privacy waiver that the State Department released to Mobley"). The D.C. Circuit has held it "do[es] not deem `official' a disclosure made by someone other than the agency from which the information is being sought." Frugone v. CIA, 169 F.3d 772, 774 (D.C.Cir.1999); see also Marino v. DEA, 685 F.3d 1076, 1082 (D.C.Cir.2012) ("[A]n agency does not waive its right to invoke an otherwise valid
Lastly, Mobley's objection to the third category of information presents the question of whether an agency may withhold the name of a deceased person under FOIA Exemption 6 on the rationale that disclosure could result in harassment, public attention, or further grief for the decedent's family members or close associates. The FBI contends that its determination was proper because the family members and close associates of the deceased officer "possess substantial privacy interests" and thus disclosure could subject them to harassment or make them a target for compromise. See Defs.' Mem. in Supp. of Defs.' Mot. for Summ. J. ("Defs.' Mem.") at 22, ECF No. 25 (No. 11-2073). The FBI cites the Supreme Court's decision in Favish, 541 U.S. at 166-67, 124 S.Ct. 1570 for the proposition that "family members of deceased individuals have their own substantial privacy interests in preventing the release of personal information about the decedents when such disclosure could subject those family members to harassment, public attention, and further grief." Defs.' Reply at 25 (No. 11-2073). Mobley, however, contends that the FBI's position is "disingenuous" because "it is FBI's standard practice to only release information about third parties if the requester provides a privacy waiver, proof of death, or evidence of an overriding public interest." Pl.'s Surreply at 16 (No. 11-2073). Mobley also contends that "Favish was limited to a very narrow set of facts in which the records being sought were graphic photographs of a murder victim [sic]."
On this point, Mobley is right to identify a certain level of hypocrisy in the FBI's position, given that the FBI regularly releases information about deceased individuals. He is also correct to distinguish the authority of Favish because the Supreme Court's holding in that case was limited to "surviving family members' right to personal privacy with respect to their close relative's death-scene images." Favish, 541 U.S. at 170, 124 S.Ct. 1570 (emphasis added). Nevertheless, the D.C. Circuit has repeatedly held that the close relatives of a deceased person retain a certain amount of privacy interests after the decedent has passed away. See Schrecker v. U.S. Dep't of Justice, 254 F.3d 162, 166
The FBI has decided to withhold the identity of the deceased officer under FOIA Exemptions 6 and 7(C). See First Argall Decl. ¶ 52. Mobley has not contested the fact that the records containing the deceased officer's identity were "compiled for law enforcement purposes," and therefore the Court will analyze the FBI's withholding under the less demanding standard of Exemption 7(C), which protects law enforcement records that "could reasonably be expected to constitute an unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(7)(C); see also Am. Civil Liberties Union v. U.S. Dep't of Justice ("ACLU/DOJ II"), 655 F.3d 1, 6 (D.C.Cir. 2011) ("`Exemption 7(C) is more protective of privacy than Exemption 6' and thus establishes a lower bar for withholding material."). "In deciding whether the release of particular information constitutes an `unwarranted' invasion of privacy under Exemption 7(C), [a court] `must balance the public interest in disclosure against the [privacy] interest Congress intended the Exemption to protect.'" ACLU/DOJ II, 655 F.3d at 6 (quoting U.S. Dep't of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 776, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989)). As discussed above, the FBI has established at least a moderate privacy interest protected by Exemption 7(C), and Mobley has not offered any public interest that disclosure would serve. Therefore, recognizing that "something, even a modest privacy interest, outweighs nothing every time," Nat'l Ass'n of Retired Fed. Emps. v. Horner, 879 F.2d 873, 879 (D.C.Cir.1989), the Court holds that the FBI properly withheld the identity of the deceased foreign law enforcement officer under FOIA Exemption 7(C).
In sum, none of Mobley's objections to the FBI's withholding decisions under FOIA Exemptions 6 and 7(C) are sufficient to deny summary judgment to the FBI. Therefore, the FBI is entitled to summary judgment with regard to all of its withholding determinations in the instant actions.
As discussed above, see supra note 10, § 552(c) of the FOIA permits agencies to "treat ... records as not subject
As stated in the FBI's brief, counsel for the plaintiff inquired whether the FBI would be relying on the exclusion contained in § 552(c), and therefore, pursuant to the FBI's standard policies, the FBI has submitted an ex parte, in camera declaration that "address[es] the exclusion claim." See Defs.' Mem. at 17 n. 3 (No. 11-2073). The Court will not comment publicly on whether or not the FBI has in fact relied upon any of the exclusions contained in § 552(c). Upon review of the FBI's ex parte, in camera declaration, the Court can conclude that the objections raised by the plaintiffs to any potential invocation of § 552(c) are unavailing. See Pl.'s Opp'n at 32 (No. 11-2073).
The plaintiffs' final objection to the defendants' handling of their FOIA/PA requests is that State and the CIA have not met their burden of demonstrating that "[a]ny reasonably segregable portion of a record [was] provided to [the plaintiffs] after deletion of the portions which are exempt under [the FOIA]." 5 U.S.C. § 552(b); see Pls.' Opp'n at 48-49 (No. 11-2072); Pl.'s Opp'n at 17 (No. 11-2073). The plaintiffs argue that the declarations of the CIA and the State Department were "boilerplate" and "conclusory," and therefore those two agencies have failed to meet their burden of establishing that all reasonably segregable, non-exempt information was released. See Pls.' Opp'n at 48-49 (No. 11-2072); Pl.'s Opp'n at 17 (No. 11-2073). The CIA responds that its sworn declaration was sufficient to meet its segregability burden because the declaration explained that "there are no reasonably segregable portions of these six records that can be released to Plaintiffs" because "the nature of these documents prevent the CIA from even disclosing the titles of the records, as they tend to reveal the specific information the CIA is seeking to protect." See Defs.' Reply at 12-13 (No. 11-2073); Third Meeks Decl. ¶ 9 n. 3. State similarly responds that it has met its burden based on the presumptive good faith of the statements in its sworn declarations that no further segregation of non-exempt information is possible, as well as "the evidence of [State's] segregability process that is apparent on the face of the partially released records." See Defs.' Reply at 30-31 (No. 11-2072).
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."
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, 494 F.3d at 1117. Indeed, certain, 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 v. Dep't of Def., 550 F.3d 32, 41 (D.C.Cir.2008) (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 concludes that the CIA and the State Department have adequately demonstrated they have released all reasonably segregable, non-exempt portions of all withheld records. As to the CIA, this conclusion is supported by Ms. Meeks' explanation that the nature of the withheld documents is such that revealing even small portions of the documents would "tend to reveal the specific information the CIA is seeking to protect." Third Meeks Decl. ¶ 9 n. 3. Even under the more demanding Mead Data standard, this would be sufficient because Ms. Meeks' statement establishes that no portion of the six withheld records is non-exempt, and therefore the CIA has released everything that it can, which is nothing at all. See Third Meeks Decl. ¶ 9 ("[T]he records themselves reveal certain sensitive but unclassified intelligence sources and methods."). The CIA's explanation is thus neither boilerplate nor conclusory, and it is entitled to a presumption of good faith that the plaintiffs have failed to rebut. See Sussman, 494 F.3d at 1117.
As to the State Department, the Court's conclusion that the agency's segregability obligations were satisfied is supported by the Vaughn index's reasonably detailed description of the documents in question, as well as Ms. Walter's sworn assurance that "[a]ll of the withheld information was reviewed for segregability prior to release
In summary, the Court concludes that all four defendants have demonstrated that their responses to the plaintiffs' FOIA/PA requests were appropriate and satisfied all of the agencies' obligations under the FOIA and the Privacy Act, with the exception that the CIA has failed to demonstrate fully the adequacy of its search and must perform a supplemental search as a result. Therefore, the Court will grant summary judgment to the Department of Defense, Department of State, and Department of Justice on the plaintiffs' claims, and the Court will grant in part and deny in part summary judgment to the CIA on the plaintiffs' claims.
An appropriate Order accompanies this Memorandum Opinion.
In the 1986 Freedom of Information Reform Act, Congress codified in § 552(c) the use of a Glomar response for the following three limited categories of agency records: (1) law enforcement records described in § 552(b)(7)(A), which if disclosed could reasonably be expected to interfere with enforcement proceedings; (2) informant records; and (3) certain classified records maintained by the FBI. Pub.L. No. 99-570, §§ 1801-04, 100 Stat. 3207, 3207-48 to 3207-50 (1986); see 5 U.S.C. § 552(c) (for these excluded categories of records, allowing agencies to "treat the records as not subject to the requirements of this section"); see also Benavides v. DEA, 976 F.2d 751, 752-53 (D.C.Cir.1992) (per curiam) (construing the phrase "not subject to the requirements of this section" to "permit a Glomarization where the information's status has not been officially confirmed, but to permit analysis under other exemptions like that afforded any other document sought under FOIA, where the status has been so confirmed"). Even if any of the defendants in this action were relying upon § 552(c) to withhold any records, the Court would not be permitted to comment on the public record about the existence of such reliance.
