National Security Counselors v. Central Intelligence Agency ( 2016 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
NATIONAL SECURITY COUNSELORS, et
al.,
Plaintiffs, Civil Action No. 12-284 (BAH)
v. Chief Judge Beryl A. Howell
CENTRAL INTELLIGENCE AGENCY, et
al.,
Defendants.
MEMORANDUM OPINION
The plaintiffs, a Virginia-based non-profit organization called National Security
Counselors (“NSC”) and three individuals (collectively, the “plaintiffs”), brought this action
against the Central Intelligence Agency (“CIA”) and the Office of the Director of National
Intelligence (“ODNI”) (collectively, the “defendants”), pursuant to the Freedom of Information
Act (“FOIA”), 5 U.S.C. § 552, the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 500, et
seq., and related statutes, challenging the defendants’ responses to numerous FOIA requests and
requests for Mandatory Declassification Review (“MDR”) of classified agency records, as well
as various practices and policies employed by the defendants in responding to such requests
generally. While this action initially comprised more than two dozen separate claims under six
federal statutes, seven of the plaintiffs’ pattern or practice challenges have already been
dismissed in whole or in part. Nat’l Sec. Counselors v. CIA (NSC I), 931 F. Supp. 2d 77 (D.D.C.
2013). Pending before the Court are two motions: the defendants’ Renewed Motion for
Summary Judgment as to all of the plaintiffs’ remaining claims and the plaintiffs’ Cross-Motion
1
for Partial Summary Judgment. For the reasons set out below, the defendants’ renewed motion
is granted in part and denied in part, and the plaintiffs’ motion is denied.
I. BACKGROUND
Much of the relevant factual background underlying the present motions is described in
this Court’s prior opinion resolving the defendants’ motion to dismiss nine of the plaintiffs’
claims. See NSC I, 931 F. Supp. 2d 77 (D.D.C. 2013). Consequently, the relevant factual and
procedural history underlying the pending motions is again summarized only briefly below.
This case stems from the plaintiffs’ submission of more than thirty FOIA and MDR
requests to the CIA and ODNI between July 2011 and January 2012. 1 Seeking to challenge the
defendants’ responses to these specific requests, as well as various overarching practices
allegedly used by the defendants in responding to such requests, the plaintiffs filed this action in
February 2012. Compl., ECF No. 1. After amending their complaint to add four additional
causes of action, the plaintiffs eventually alleged twenty-six separate claims against the
defendants. First Am. Compl. (“FAC”), ECF No. 9. Upon motion by the defendants for partial
dismissal of the plaintiffs’ claims, see Defs.’ Partial Mot. Dismiss Pls.’ FAC, ECF No. 14, the
Court dismissed six of the plaintiffs’ claims in full, with a seventh claim dismissed in part. NSC
I, 931 F. Supp. 2d at 112. As a result, following resolution of the defendants’ initial motion to
dismiss, nineteen of the plaintiffs’ original claims remained pending, in whole or in part, against
the defendants. 2
1
In addition to the present action, NSC separately filed three related actions in February 2011 stemming
from dozens of additional FOIA and MDR requests submitted to numerous intelligence and national defense
agencies. See Nat'l Sec. Counselors v. CIA (NSC II), 960 F. Supp. 2d 101 (D.D.C. 2013). These earlier-filed cases
raised certain legal and factual issues also presented in the instant action, but this opinion addresses only the
plaintiffs’ claims in the above-captioned matter.
2
The plaintiffs sought reconsideration of the dismissal of certain claims, see Pls.’ Mot. for Reconsideration,
ECF No. 54, which was denied for reasons detailed in a Memorandum and Order, ECF No. 60.
2
Thereafter, the defendants moved for summary judgment on each of the plaintiffs’
remaining claims, see Defs.’ Mot. Summ. J., ECF No. 63, but this motion was denied without
prejudice, Min. Order, dated Nov. 8, 2013, after the parties indicated in a joint status report that
the defendants were revising their withholdings and reprocessing documents, requiring the filing
of an “updated summary judgment motion,” see Joint Mot. Extension Time File Proposed
Briefing Schedule, at 2, ECF No. 72. The defendants then filed a renewed motion for summary
judgment, see Defs.’ Renewed Mot. Summ. J., ECF No. 74, and the plaintiffs cross-moved for
summary judgment on certain of these claims, see Pls.’ Cross-Mot. Part. Summ. J., ECF No. 78.
During the course of briefing these outstanding motions, the parties continued to engage in
negotiations in an effort to narrow the issues requiring resolution by the Court. See Sec. Joint
Mot. Amend Summ. J. Briefing Schedule at 1, ECF No. 82. In light of these ongoing
discussions, the Court stayed these actions and directed the parties to inform the Court of any
issues still in dispute when their negotiations were complete. See Min. Order, dated March 16,
2015.
On April 2, 2015, the parties jointly notified the Court of the resolution of many of their
remaining disputes. Despite this substantial progress, however, the parties reported that they
continue to disagree as to five outstanding issues: (1) whether the CIA’s MDR Fee Structure
violates the terms of the Independent Offices Appropriations Act, 31 U.S.C. § 9701 (“IOAA”),
and thus was adopted in violation of the APA (Count Two); (2) whether NSC failed to exhaust
administratively its challenge to the CIA’s response to a FOIA request seeking agency
correspondence regarding certain earlier MDR requests (Count Four); (3) whether the CIA
conducted adequate searches for agency records responsive to two of the plaintiffs’ FOIA
requests (Counts Seven and Sixteen); (4) whether the CIA properly issued a Glomar response to
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a FOIA request seeking information regarding agency records lost at the World Trade Center site
following the September 11, 2001, attacks (Count Eleven); and (5) whether the CIA and ODNI
wrongfully withheld, in full or in part, ninety-five agency records identified in an updated
Vaughn index. See Joint Summ. Remaining Disputes (“Joint Summ.”) at 3, ECF No. 95; id., Ex.
Combined Vaughn Index and Chart (“Combined Vaughn Index”) at 1–18, ECF No. 95-1. 3 Each
of these remaining issues has now been fully briefed by the parties and is ripe for consideration.
On November 1, 2016, the Court directed the defendants to provide an unredacted copy
of one partially withheld document identified in the updated Vaughn index for in camera
inspection. See Min. Order, dated Nov. 1, 2016. The defendants submitted the document for in
camera inspection on November 3, 2016. See Notice of Filing, ECF No. 97.
II. LEGAL STANDARDS
A. Summary Judgment in FOIA Cases
Federal Rule of Civil Procedure 56 provides that summary judgment shall be granted “if
the movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). The moving party bears the
burden of demonstrating the “absence of a genuine issue of material fact” in dispute, Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986), while the nonmoving party must present specific
facts supported by materials in the record that would be admissible at trial and that could enable
a reasonable jury to find in its favor, see Anderson v. Liberty Lobby, Inc. (Liberty Lobby), 477
U.S. 242, 248 (1986); Allen v. Johnson, 795 F.3d 34, 38 (D.C. Cir. 2015) (noting that, on
3
In their cross-motion, the plaintiffs moved for partial summary judgment on two issues: the MDR Fee
Structure challenged in Count Two and the CIA’s production of electronic records. See Pls.’ Cross-Mot. Part.
Summ. J. at 1. Prior to the instant decision, however, the plaintiffs conceded “that CIA’s production of all
responsive records in electronic form render[ed] the second part of their Cross-Motion moot.” Pls.’ Reply Supp.
Cross-Mot. Part. Summ. J. at 2 n.2, ECF No. 87. Consequently, of the issues for which the plaintiffs cross-moved
for summary judgment, only the MDR Fee Structure remains in contention.
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summary judgment, appropriate inquiry is “whether, on the evidence so viewed, ‘a reasonable
jury could return a verdict for the nonmoving party’” (quoting Liberty Lobby, 477 U.S. at 248)).
“[T]hese general standards under rule 56 apply with equal force in the FOIA context,”
Washington Post Co. v. U.S. HHS, 865 F.2d 320, 325 (D.C. Cir. 1989), and the D.C. Circuit has
observed that “the vast majority of FOIA cases can be resolved on summary judgment,’”
Brayton v. Office of the United States Trade Representative, 641 F.3d 521, 527 (D.C. Cir. 2011).
The FOIA was enacted “to promote the ‘broad disclosure of Government records’ by
generally requiring federal agencies to make their records available to the public on request,”
DiBacco v. U.S. Army, 795 F.3d 178, 183 (D.C. Cir. 2015) (citing Dep’t of Justice v. Julian, 486
U.S. 1, 8 (1988)). Reflecting the necessary balance between the public’s interest in
governmental transparency and “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), the FOIA contains nine exemptions set forth in 5 U.S.C.
§ 552(b), which “are explicitly made exclusive and must be narrowly construed,” Milner v. U.S.
Dep’t of Navy, 562 U.S. 562, 565 (2011) (internal quotation marks and citations omitted); see
also Murphy v. Exec. Office for U.S. Attys., 789 F.3d 204, 206 (D.C. Cir. 2015); Citizens for
Responsibility & Ethics in Wash. v. U.S. Dep’t of Justice (CREW), 746 F.3d 1082, 1088 (D.C.
Cir. 2014); Pub. Citizen, Inc. v. Office of Mgmt. & Budget, 598 F.3d 865, 869 (D.C. Cir. 2010).
“[T]hese limited exemptions do not obscure the basic policy that disclosure, not secrecy, is the
dominant objective of the Act.” Dep’t of Air Force v. Rose, 425 U.S. 352, 361 (1976).
In litigation challenging the sufficiency of “the release of information under the FOIA,
the agency has the burden of showing that requested information comes within a FOIA
exemption.” Public Citizen Health Research Group v. FDA, 185 F.3d 898, 904 (D.C. Cir. 1999)
5
(internal quotations omitted); see also Fed. Open Mkt. Comm. of Fed. Reserve Sys. v. Merrill,
443 U.S. 340, 352 (1979) (agency invoking exemption bears the burden “to establish that the
requested information is exempt”); U.S. Dep’t of Justice v. Reporters Comm. for Freedom of
Press, 489 U.S. 749, 755 (1989); DiBacco, 795 F.3d at 195; CREW, 746 F.3d at 1088; Elec.
Frontier Found. v. U.S. Dep’t of Justice, 739 F.3d 1, 7 (D.C. Cir. 2014); Assassination Archives
& Research Ctr. v. CIA, 334 F.3d 55, 57 (D.C. Cir. 2003). This burden does not shift even when
the requester files a cross-motion for summary judgment because “the Government ultimately
[has] the onus of proving that the [documents] are exempt from disclosure,” while “[t]he burden
upon the requester is merely to establish the absence of material factual issues before a summary
disposition of the case could permissibly occur.” Public Citizen Health Research Group, 185
F.3d at 904–05 (internal quotations and citations omitted; brackets in original).
An agency may carry its burden of properly invoking an exemption by submitting
sufficiently detailed affidavits or declarations, a Vaughn index of the withheld documents, or
both, to demonstrate that the government has analyzed carefully any material withheld, to enable
the court to fulfill its duty of ruling on the applicability of the exemption, and to enable the
adversary system to operate by giving the requester as much information as possible, on the basis
of which the requester’s case may be presented to the trial court. 4 See Judicial Watch, Inc. v.
U.S. Secret Serv., 726 F.3d 208, 215 (D.C. Cir. 2013) (internal quotation marks omitted) (“In
FOIA cases, summary judgment may be granted on the basis of agency affidavits if they contain
reasonable specificity of detail rather than merely conclusory statements, and if they are not
called into question by contradictory evidence in the record or by evidence of agency bad
faith.”); Oglesby v. U.S. Dep’t of Army, 79 F.3d 1172, 1176 (D.C. Cir. 1996) (“The description
4
“A Vaughn index describes the documents withheld or redacted and the FOIA exemptions invoked, and
explains why each exemption applies.” Prison Legal News v. Samuels, 787 F.3d 1142, 1145 n.1 (D.C. Cir. 2015).
6
and explanation the agency offers should reveal as much detail as possible as to the nature of the
document, without actually disclosing information that deserves protection[,] . . . [which] serves
the purpose of providing the requestor with a realistic opportunity to challenge the agency’s
decision.”); CREW, 746 F.3d at 1088 (noting that agency’s burden is sustained by submitting
affidavits that “‘describe the justifications for nondisclosure with reasonably specific detail,
demonstrate that the information withheld logically falls within the claimed exemption, and are
not controverted by either contrary evidence in the record nor by evidence of agency bad faith’”
(quoting Larson v. U.S. Dep’t of State, 565 F.3d 857, 862 (D.C. Cir. 2009)). While “an agency’s
task is not herculean[]” it must “describe the justifications for nondisclosure with reasonably
specific detail and demonstrate that the information withheld logically falls within the claimed
exemption.” Murphy, 789 F.3d at 209 (internal quotation marks omitted) (citing Larson, 565
F.3d at 862). “Ultimately, an agency’s justification for invoking a FOIA exemption is sufficient
if it appears ‘logical’ or ‘plausible.’” Judicial Watch, Inc. v. U.S. Dep’t of Def., 715 F.3d 937,
941 (D.C. Cir. 2013) (quoting Am. Civil Liberties Union v. U.S. Dep’t of Def., 628 F.3d 612, 619
(D.C. Cir. 2011)); Larson, 565 F.3d at 862 (quoting Wolf v. CIA, 473 F.3d 370, 374–75 (D.C.
Cir. 2007)).
The FOIA provides federal courts with the power to “enjoin the agency from withholding
agency records and to order the production of any agency records improperly withheld from the
complainant,” 5 U.S.C. § 552(a)(4)(B), and “directs district courts to determine de novo whether
non-disclosure was permissible,” Elec. Privacy Info. Ctr. v. U.S. Dep’t of Homeland Sec., 777
F.3d 518, 522 (D.C. Cir. 2015), by reviewing the Vaughn index and any supporting declarations
“to verify the validity of each claimed exemption,” Summers v. U.S. Dep’t of Justice, 140 F.3d
1077, 1080 (D.C. Cir. 1998).
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District courts also have an “affirmative duty” to consider whether the agency has
produced all segregable, non-exempt information. Elliott v. U.S. Dep’t of Agric., 596 F.3d 842,
851 (D.C. Cir. 2010) (referring to court’s “affirmative duty to consider the segregability issue
sua sponte”) (quoting Morley v. CIA, 508 F.3d 1108, 1123 (D.C. Cir. 2007)); Stolt–Nielsen
Transp. Grp. Ltd. v. United States, 534 F.3d 728, 734 (D.C. Cir. 2008) (“[B]efore approving the
application of a FOIA exemption, the district court must make specific findings of segregability
regarding the documents to be withheld.”) (quoting Sussman v. U.S. Marshals Serv., 494 F.3d
1106, 1116 (D.C. Cir. 2007)); Trans–Pac. Policing Agreement v. U.S. Customs Serv., 177 F.3d
1022, 1028 (D.C. Cir. 1999) (“[W]e believe that the District Court had an affirmative duty to
consider the segregability issue sua sponte . . . even if the issue has not been specifically raised
by the FOIA plaintiff.”); see also 5 U.S.C. § 552(b) (“Any reasonably segregable portion of a
record shall be provided to any person requesting such record after deletion of the portions which
are exempt under this subsection.”).
B. Administrative Procedure Act
Under the APA, a reviewing court must set aside a challenged agency action that is found
to be, inter alia, “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
with law,” 5 U.S.C. § 706(2)(A); “in excess of statutory jurisdiction, authority, or limitations, or
short of statutory right,” id. § 706(2)(C); or “without observance of procedure required by law,”
id. § 706(2)(D); Otis Elevator Co. v. Sec’y of Labor, 762 F.3d 116, 120–21 (D.C. Cir. 2014)
(citing Fabi Constr. Co. v. Sec’y of Labor, 370 F.3d 29, 33 (D.C. Cir. 2004)). The arbitrary or
capricious provision, under subsection 706(2)(A), “is a catchall, picking up administrative
misconduct not covered by the other more specific paragraphs” of the APA. Ass’n of Data
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Processing Serv. Orgs., Inc. v. Bd. of Governors of Fed. Reserve Sys. (ADPSO), 745 F.2d 677,
683 (D.C. Cir. 1984) (Scalia, J.).
The scope of review under the “arbitrary and capricious standard is ‘highly deferential,’”
Am. Trucking Ass’ns, Inc. v. Fed. Motor Carrier Safety Admin., 724 F.3d 243, 245 (D.C. Cir.
2013) (quoting Am. Wildlands v. Kempthorne, 530 F.3d 991, 997 (D.C. Cir. 2008)); Envtl. Def.
Fund, Inc. v. Costle, 657 F.2d 275, 283 (D.C. Cir. 1981) (same), and “narrow,” such that “a
court is not to substitute its judgment for that of the agency,” Judulang v. Holder, 132 S. Ct. 476,
483 (2011); see also Fogo De Chao (Holdings) Inc. v. U.S. Dep’t of Homeland Sec., 769 F.3d
1127, 1135 (D.C. Cir. 2014) (same); Agape Church, Inc. v. FCC, 738 F.3d 397, 408 (D.C. Cir.
2013) (same). When “an agency has acted in an area in which it has ‘special expertise,’ the court
must be particularly deferential to [the agency’s] determinations.” Sara Lee Corp. v. Am. Bakers
Ass’n Ret. Plan, 512 F. Supp. 2d 32, 37 (D.D.C. 2007) (quoting Bldg. & Constr. Trades Dep’t,
AFL–CIO v. Brock, 838 F.2d 1258, 1266 (D.C. Cir. 1988)). Yet, “courts retain a role, and an
important one, in ensuring that agencies have engaged in reasoned decisionmaking.” Judulang,
132 S. Ct. at 483–84. Simply put, “the agency must explain why it decided to act as it did.”
Butte County v. Hogen, 613 F.3d 190, 194 (D.C. Cir. 2010).
In evaluating agency actions under the “arbitrary and capricious” standard, courts “must
consider whether the [agency’s] decision was based on a consideration of the relevant factors and
whether there has been a clear error of judgment.” Marsh v. Ore. Natural Res. Council, 490 U.S.
360, 378 (1989) (citation and internal quotation marks omitted); Citizens to Preserve Overton
Park, Inc. v. Volpe (Overton Park), 401 U.S. 402, 416 (1971), overruled on other grounds by
Califano v. Sanders, 430 U.S. 99, 105 (1977); Blue Ridge Envtl. Def. League v. Nuclear
Regulatory Comm’n, 716 F.3d 183, 195 (D.C. Cir. 2013). When an agency “‘fail[s] to provide a
9
reasoned explanation, or where the record belies the agency’s conclusion, [the court] must undo
its action.’” Cty. of Los Angeles v. Shalala, 192 F.3d 1005, 1021 (D.C. Cir. 1999) (quoting
BellSouth Corp. v. FCC, 162 F.3d 1215, 1222 (D.C. Cir. 1999)); see Select Specialty Hosp.-
Bloomington, Inc. v. Burwell, 757 F.3d 308, 312 (D.C. Cir. 2014) (noting that when “‘an
agency’s failure to state its reasoning or to adopt an intelligible decisional standard is . . . glaring
. . . we can declare with confidence that the agency action was arbitrary and capricious’”
(quoting Checkosky v. SEC, 23 F.3d 452, 463 (D.C. Cir. 1994))). At the very least, the agency
must have reviewed relevant data and articulated a satisfactory explanation establishing a
“rational connection between the facts found and the choice made.” See Am. Trucking Ass’ns,
Inc., 724 F.3d at 249 (quoting State Farm, 463 U.S. at 43); see also EPA v. EME Homer City
Generation, L.P., 134 S. Ct. 1584, 1602 (2014) (holding that agency “retained discretion to alter
its course [under a regulation] provided it gave a reasonable explanation for doing so”); Amerijet
Int’l, Inc. v. Pistole, 753 F.3d 1343, 1350 (D.C. Cir. 2014) (“[A] fundamental requirement of
administrative law is that an agency set forth its reasons for decision; an agency’s failure to do so
constitutes arbitrary and capricious agency action.” (internal quotation marks and citation
omitted)). “[C]onclusory statements will not do; an agency’s statement must be one of
reasoning.” Amerijet Int’l Inc., 753 F.3d at 1350 (internal quotation marks omitted; emphasis in
original).
III. DISCUSSION
The FOIA requests at issue in this lawsuit are somewhat unusual as the plaintiffs are
seeking to explore the means by which the CIA and other intelligence agencies maintain secret
information and withhold this information from public disclosure. Thus, the present action
involves numerous FOIA requests aimed at obtaining agency records related to the processing of
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earlier FOIA requests, as well as related litigation involving the defendants. As a result of their
often self-referential nature, certain of the requests underlying the parties’ remaining disputes
present novel issues that have not been previously addressed in this Circuit or others. The
discussion that follows will address these issues in the following order: First, the plaintiffs’
challenge, set out in Count Two, to the CIA’s policy of assessing a fee to process MDR requests
is discussed. With this lone remaining challenge to a broader policy resolved, consideration of
the plaintiffs’ remaining FOIA claims will begin with the CIA’s argument that NSC failed to
exhaust administratively the challenge to the CIA’s response to one of the FOIA requests at issue
in Count Four. Next, the sufficiency of the CIA’s search efforts in connection with the FOIA
requests at issue in Counts Seven and Sixteen are considered. Lastly, the plaintiffs’ remaining
challenges to the defendants’ withholdings, in whole or in part, of ninety-five records responsive
to the plaintiffs’ various FOIA requests are discussed.
A. The CIA’s MDR Fee Structure (Count Two)
In their amended complaint, the plaintiffs challenge the CIA’s MDR Fee Structure on
both procedural and substantive grounds. First, under Count One, the plaintiffs assert that the
CIA violated the APA in adopting its policy of charging fees to process MDR requests without
complying with the notice-and-comment procedures generally applicable to federal agency
rulemaking. FAC ¶¶ 19–39. Beyond this alleged procedural error, the plaintiffs complain, in
Count Two, that the MDR Fee Structure runs contrary to the IOAA and, as a result, the CIA’s
decision to adopt the policy was “arbitrary, capricious, an abuse of discretion, or otherwise
contrary to law,” in violation of the APA. Id. ¶¶ 40–50.
After the defendants succeeded in securing the dismissal of the plaintiffs’ procedural
challenge, NSC I, 931 F. Supp. 2d at 105–12, only the plaintiffs’ challenge to substantive
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provisions of the policy remains in dispute, see Joint Summ. at 3. Following a brief overview of
the CIA’s historical policy regarding fees charged to process MDR requests, as well as the fee
structure currently employed by the agency, the plaintiffs’ remaining challenge under the APA is
considered.
1. Overview of the MDR Fee Structure
Established by Executive Order, the MDR Program is an administrative process by which
individuals seeking the release of particular classified documents may, with certain exceptions,
require an agency to reconsider whether the sought-after documents are in fact properly
classified. 75 Fed. Reg. 707 (Dec. 29, 2009) (“E.O. 13526”) § 3.5. 5 To obtain declassification
review, an MDR requester must submit a request to the agency that classified the document
providing “sufficient specificity to enable the agency to locate it with a reasonable amount of
effort.” Id. § 3.5(a)(1). Where an agency determines that information no longer meets the
current standards for classification, the agency must declassify and release that information
unless continued withholding “is otherwise authorized and warranted under applicable law.” Id.
§ 3.5(c).
In addition to setting out the basic parameters for mandatory declassification review, E.O.
13526 authorizes the Director of the Information Security Oversight Office at the National
Archives and Records Administration (“NARA”) to promulgate regulations to assist agencies in
implementing the Order. E.O. 13526 § 5.1; see 32 C.F.R. §§ 2001.1 et seq. These implementing
5
This section, titled “Mandatory Declassification Review,” provides: “(a) Except as provided in paragraph
(b) of this section, all information classified under this order or predecessor orders shall be subject to a review for
declassification by the originating agency if: (1) the request for a review describes the document or material
containing the information with sufficient specificity to enable the agency to locate it with a reasonable amount of
effort; (2) the document or material containing the information responsive to the request is not contained within an
operational file exempted from search and review, publication, and disclosure under 5 U.S.C. 552 in accordance
with law; and (3) the information is not the subject of pending litigation.” E.O. 13526, § 3.5, 75 FR at 717–18.
12
regulations specifically permit agencies, “[i]n responding to mandatory declassification review
requests for classified records, [to] charge fees in accordance with [the IOAA] or relevant fee
provisions in other applicable statutes.” 32 C.F.R. § 2001.33(e).
The CIA’s MDR Fee Structure at issue here grew out of two separate sections of an
Interim Rule promulgated by the CIA in June 1997 to “implement its obligations under the
[FOIA], the Privacy Act, and Executive Order 12958 (or successor Orders) provisions relating to
classification challenges by authorized holders, requests for mandatory declassification review,
and access by historical researchers.” See Freedom of Information Act; Privacy Act; and
Executive Order 12958; Implementation (“Interim Rule”), 62 Fed. Reg. 32,479 (June 16, 1997)
(codified as amended at 32 C.F.R. 1900–01, 1907–09); see also FAC ¶ 20. First, with regard to
FOIA requests, this Interim Rule provides that “[r]ecords will be furnished without charge or at a
reduced rate whenever the Agency determines,” inter alia, that “it is in the public interest
because it is likely to contribute significantly to the public understanding of the operations or
activities of the United States Government and is not primarily in the commercial interest of the
requester.” See Interim Rule, 62 Fed. Reg. at 32,483.
To that end, the rule delineates for fee purposes three categories of FOIA requesters: (1)
“[c]ommercial use” requesters, who were to be charged for “the full direct costs of searching for,
reviewing, and duplicating responsive records (if any)”; (2) “[e]ducational and non-commercial
scientific institution” and “representatives of the news media” requesters, who were to be
charged only for “reproduction beyond the first 100 pages”; and (3) “[a]ll other” requesters, who
were to be charged “the full direct cost of searching for and reproducing responsive records (if
any) beyond the first 100 pages of reproduction and the first two hours of search time which will
be furnished without charge.” Id. at 32,484. Second, the Interim Rule provided that MDR
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requests “made directly to [the CIA] will be liable for costs in the same amount and under the
same conditions” as those set out for FOIA requests. Id. at 32,496.
Consistent with this longstanding interim rule, the plaintiffs allege that prior to
September 23, 2011, the CIA “rarely if ever charged fees to process MDR requests.” See FAC ¶
23 (explaining that “[o]f the multiple frequent MDR requesters surveyed by [the plaintiffs], none
recalled ever being charged by CIA for MDR requests”). On that date, however, the CIA
published a final rule amending its earlier regulations addressing fees charged to process MDR
requests. See Mandatory Declassification Review (“Final Rule”), 76 Fed. Reg. 59,032 (Sept. 23,
2011) (codified at 32 C.F.R. §§ 1908, et seq.). The Final Rule added 32 C.F.R. § 1908.14, which
sets forth new provisions governing whether and how fees are assessed for MDR requests. As
relevant here, the new provisions (1) assess reproduction fees for all MDR requests, including a
fee of fifty cents per page, $10 per CD, and a minimum fee of $15 per request for reproductions;
and (2) assess search and review fees of between $20 and $72 per hour for all MDR requests,
which are due “even if [the CIA’s] search locates no responsive information or some or all of the
responsive information must be withheld under applicable authority.” See 32 C.F.R. § 1908.14;
see also FAC ¶ 25.
Since this more recent rule was promulgated, the plaintiffs allege that the CIA “began
responding to MDR requests with demands that requesters commit to pay all search, review, and
duplication fees at the new fee schedule described in 32 C.F.R. § 1908.14.” FAC ¶ 26.
Specifically, three of the plaintiffs each submitted one or more MDR requests to the CIA
following promulgation of the Final Rule, and the CIA responded to each request by asking the
requester to commit to pay the fees outlined in 32 C.F.R. § 1908.14 and holding the request in
abeyance until such a commitment was given. See id. ¶¶ 27–35.
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2. Analysis
The plaintiffs initially asserted three alternative bases for invalidating the MDR Fee
Structure, see FAC ¶¶ 40–50, but have since abandoned their claims under the IOAA and the
Mandamus Act, see Pls.’ Opp’n Defs.’ Mot. Summ J. & Supp. Pls.’ Cross-Mot. Part. Summ. J.
(“Pls.’ Opp’n”) at 4, ECF No. 77. Consequently, the discussion that follows addresses only the
plaintiffs’ claim that, because the MDR Fee Structure exceeds the agency’s authority under the
IOAA, the CIA’s adoption of the Fee Structure was “not in accordance with law” and, therefore,
must be set aside under the APA. 6 See Pls.’ Opp’n at 4; Defs.’ Reply Supp. Renewed Mot.
Summ. J. & Opp’n Pl.’s Cross-Mot. Part. Summ. J. (“Defs.’ Reply”) at 2, ECF No. 84.
Enacted to ensure that “each service or thing of value provided by an agency . . . to a
person . . . is . . . self-sustaining to the extent possible,” the IOAA authorizes federal agencies to
“prescribe regulations establishing the charge for a service or thing of value provided by the
agency.” 31 U.S.C. §§ 9701(a), (b). Such fees must be “(1) fair; and (2) based on–(A) the costs
to the Government; (B) the value of the service or thing to the recipient; (C) public policy or
interest served; and (D) other relevant facts.” Id. § 9701(b). As the D.C. Circuit has explained,
while the “IOAA itself provides little specific direction on how to assess the propriety of user
fees . . . , the Supreme Court long ago set forth the considerations that control agency
determinations to assess fees for Government services.” Seafarers Int’l Union of N. Am. v. U.S.
Coast Guard, 81 F.3d 179, 182 (D.C. Cir. 1996).
6
The plaintiffs similarly “do not challenge CIA’s assertion that the fees charged reflect the costs to the
agency,” Pls.’ Opp’n at 5 n.3, and, thus, the agency’s argument on that score need not be addressed. As for the
relief requested, the plaintiffs have “retract[ed]” their requests that the Court (1) “order CIA to publish on its website
that it is no longer charging fees for MDR requests,” and (2) that CIA “contact requesters who were so charged.” Id.at 11–12. The only relief remaining at issue, as a result of these retractions, is to invalidate the existing fee structure
and enjoin the CIA from creating a new fee structure “incompatible with this ruling.” Id. at 12.
15
Most significantly, the Supreme Court has “carefully distinguished between a permissible
user fee and an unconstitutional tax.” Id. (citing Nat’l Cable Television Ass’n, Inc. v. United
States, 415 U.S. 336, 340–41 (1974)). Thus, a “user fee will be justified under the IOAA if there
is a sufficient nexus between the agency service for which the fee is charged and the individuals
who are assessed.” Id. at 182–83. This general distinction notwithstanding, user fees “are valid
so long as the agency levies ‘specific charges for specific services to specific individuals or
companies,’” regardless of whether the “ultimate purpose of the [statutory] scheme giving rise to
the . . . user fee[] is to benefit the public.” Id. at 183 (quoting Federal Power Commission v.
New England Power Co. (NEPCO), 415 U.S. 345, 329 (1974)); see also Engine Manufacturers
Ass’n v. EPA, 20 F.3d 1177, 1180 (D.C. Cir. 1994) (“If the agency does confer a specific benefit
upon an identifiable beneficiary . . . then it is of no moment that the service may incidentally
confer a benefit upon the general public as well.”).
Contending that many MDR requests serve predominately, or even exclusively, public
interests, the plaintiffs argue that the CIA’s policy of assessing fees on all MDR requesters
necessarily runs afoul of the limitations of the agency’s authority under the IOAA. 7 Thus, the
plaintiffs emphasize that MDR requests ensure that government activities remain open and
transparent to suggest that the “ultimate beneficiary” of any MDR request is, in most instances,
the general public. Pls.’ Opp’n at 6. For that reason, the plaintiffs argue, the CIA’s policy of
charging fees to process MDR requests cannot be supported under the IOAA. Further, even
granting that the IOAA does not categorically preclude the agency from assessing fees to process
7
Beyond their substantive disagreement as to the proper interpretation of the IOAA, the parties hotly contest
the degree to which the CIA’s interpretation of the statute is entitled to deference under Chevron, U.S.A., Inc. v. Nat.
Res. Def. Council, Inc., 467 U.S. 837 (1984), and its progeny. See Pls.’ Opp’n at 4–5 (contending that the CIA is
entitled to no deference); Defs.’ Reply at 2–4. Since, as discussed infra, the IOAA, by its plain terms, permits the
CIA to assess fees to MDR requesters, the Court need not determine definitively whether the agency’s interpretation
is otherwise entitled to deference.
16
all MDR requests, the plaintiffs suggest that the agency’s failure to distinguish between
“commercial” and “non-commercial” requests in adopting its present MDR fee structure violates
the IOAA’s exception for government services conveying a primarily public benefit. Id. at 9–11.
With limited authority on point, the plaintiffs emphasize the broad public interest goals
underlying the MDR process, as well as dicta in certain decisions of the D.C. Circuit, to argue
that the CIA’s fee policy violates the IOAA. In the end, however, their reliance on these
authorities is insufficient to demonstrate that the agency’s fee regime must be rejected as
contrary to the statute.
First, while the D.C. Circuit has yet to consider whether the IOAA permits agencies to
charge fees to process MDR requests, the plaintiffs suggest that the Circuit has generally drawn a
distinction between the production of particular agency records and items for which an agency
may permissibly charge a fee. Pls.’ Opp’n at 5. Specifically, the plaintiffs rely on dicta in
Oglesby v. U.S. Dep’t of Army, 79 F.3d 1172 (D.C. Cir. 1996), to argue that the D.C. Circuit has
“already opined . . . on the question of whether or not records released by an agency fall under
the IOAA.” Pls.’ Opp’n at 5. In fact, however, the Oglesby Court’s passing reference to the
IOAA provides little support for the plaintiffs’ view that the statute prohibits charging a fee to
process MDR requests.
Among other issues, Oglesby addressed a challenge to the NARA’s refusal to grant a fee
waiver to a FOIA requester seeking records related to a World War II-era German commander.
Oglesby, 79 F.3d at 1175, 1176–77. In general, FOIA authorizes the waiver of fees otherwise
required under the statute for non-commercial requests that provide general public benefits. See
5 U.S.C. § 552(a)(4)(A)(iii). This general fee provision may be superseded, however, by a
“statute specifically providing for setting the level of fees for particular types of records.” Id.17
§ 552(a)(4)(A)(vi). In Oglesby, the D.C. Circuit considered whether a statute authorizing the
NARA to recover all fees associated with reproducing records in its possession thus permitted
the agency to deny an otherwise valid FOIA fee waiver. Oglesby, 79 F.3d at 1177. Concluding
that the waiver denied was permissible under the superseding NARA statute, the Circuit
contrasted that statute with the IOAA, which Congress had indicated would not supersede the
general FOIA fee provision. Id. The Circuit explained that, whereas the IOAA’s reference to “a
thing of value” did not describe “particular types of records,” the NARA statute applied
specifically to “materials transferred to the Archivist’s custody,” exempting it from the general
FOIA fee and waiver provisions. Id. While the Oglesby Court thus made clear that the IOAA
does not supplant the fee provisions governing FOIA requests, this observation has no bearing on
the separate question, presented here, of whether processing an MDR request constitutes a
“service or thing of value provided by the agency” for which an agency may charge a fee under
the IOAA. 31 U.S.C. §§ 9701(a), (b).
With Oglesby providing little, if any, guidance, the plaintiffs point instead to more
general D.C. Circuit authority to argue that “it is axiomatic that the release of government
information is something which primarily benefits the public” and, therefore, must fall outside
the scope of the CIA’s authority to assess fees under the IOAA. Pls.’ Opp’n at 6. In so doing,
however, the plaintiffs rely principally on a misreading of authority addressing the limitations on
an agency’s authority to charge user fees for services that benefit the public. In particular, the
plaintiffs cite Seafarers International Union of North America v. U.S. Coast Guard, 81 F.3d 179(D.C. Cir. 1996), for the proposition that agencies may not charge user fees for services that
provide no “special, private benefit” to the requester. See Pls.’ Opp’n at 6–7 (quoting Seafarers
Int’l Union, 81 F.3d at 189 n.3 (Henderson, J., dissenting in part and concurring in judgment)
18
(quoting Central & Southern, 777 F.2d at 730)). Significantly, however, the plaintiffs fail to
note that, in describing the contours of an agency’s fee-charging authority under the IOAA, they
rely on an interpretation of prior Circuit authority specifically disavowed by the majority opinion
in Seafarers International.
Contrary to the plaintiffs’ suggestion, Seafarers International emphasized that the
existence of a public benefit does not necessarily limit an agency’s authority to charge fees under
the IOAA. In reviewing prior IOAA cases, the Seafarers International Court lamented that the
Circuit “sometimes faltered in offering reformulations of the [Supreme] Court’s test” for
determining whether a particular fee is permissible under the statute. Seafarers Int’l Union, 81
F.3d at 183. Specifically, the Circuit explained that these earlier decisions “reformulated [the
applicable Supreme Court precedent] ‘to require a certain nexus, a threshold level of private
benefit, between the regulatee and the agency before a fee can be assessed against the recipient
of the service.’” Id. at 184 (citing Electronic Industries Ass’n v. FCC, 554 F.2d 1109, 1114
(D.C. Cir. 1976)). According to the Circuit, “[t]he problem with this statement of the test is that
it suggests that a specific service to an identifiable beneficiary can form the basis for a fee only if
the service confers such a private benefit.” Id. (emphasis in original). Rejecting this
“misguided” interpretation, the Seafarers International majority warned that its earlier decisions
“could be misread to mean that an agency must weigh ‘public’ versus ‘private’ benefits in
determining whether and in what amount to charge fees.” Seafarers Int’l Union, 81 F.3d at 184.
The dissenting opinion, cited by the plaintiffs, took issue with the majority’s treatment of these
earlier opinions, arguing instead that the Circuit’s prior opinions could not reasonably be
interpreted to require an agency to demonstrate that its services primarily, or exclusively, benefit
a particular party in order to charge fees under the IOAA. Id. at 193–95 (Henderson, J.,
19
dissenting in part and concurring in judgment). Thus, while the dissenting Judge would have
preserved the “private benefit” language eschewed by the majority, both opinions would reject
any argument that “despite the fact that an agency provides a specific service to an identifiable
beneficiary, the agency does not in fact confer a ‘private benefit’” justifying the charging of a
user fee. Id. at 193 (Henderson, J., dissenting in part and concurring in judgment).
Consequently, the plaintiff’s reliance on IOAA case law to argue that the agency may not
assess a fee for MDR requests because they convey no “special, private benefit” to the requester,
Pls.’ Opp’n at 6–7, is misplaced. As the Seafarers International majority explained, an agency
may assess a fee under the IOAA “so long as the agency levies ‘specific charges for specific
services to specific individuals or companies.’” Seafarers Int’l Union, 81 F.3d at 183 (quoting
NEPCO, 415 U.S. at 349). Here, the parties fiercely dispute whether the benefits stemming from
a particular MDR request flow primarily to the individual requester, Defs.’ Mem. at 9, or are
instead fundamentally public in nature, Pls.’ Opp’n at 7. Not disputed, however, is the fact that,
in processing a particular MDR request, the CIA performs “specific services to [a] specific
individual[] or compan[y],” namely, the requester. Seafarers Int’l Union, 81 F.3d at 183(quoting NEPCO, 415 U.S. at 349).
As the defendants correctly note, Defs.’ Reply at 7, the MDR process is readily
distinguishable in this regard from the separate systemic declassification review process agencies
also are required to perform under E.O. 13526. See E.O. 13526 § 3.4. This latter process is an
ongoing responsibility of all agencies maintaining classified material, id., and is, therefore, not
linked to any particular request from a private party for review of specific classified material. By
contrast, in processing an MDR request, the CIA reviews only those records the requester has
asked the agency to declassify and release. As such, even where records subject to an MDR
20
request are ultimately released more broadly, the CIA’s review of these records is a specific
service performed expressly for the individual requester. Accordingly, the plaintiffs’ suggestion
that the agency is precluded entirely under the IOAA from assessing fees in connection with its
processing of MDR requests is incorrect.
Having concluded that the CIA is not categorically barred from imposing fees on MDR
requesters, the Court must further consider the plaintiffs’ alternative argument that the agency
may not charge the same fees to commercial and non-commercial MDR requesters alike. In
challenging this aspect of the CIA’s present MDR Fee Structure, the plaintiffs do not dispute that
the fees charged under the current regime coincide with the costs incurred by the CIA to process
an individual MDR request. Pls.’ Opp’n at 5 n.3. Nonetheless, the plaintiffs allege that, by
decoupling MDR fees from fees charged to FOIA requesters and thereby ignoring any public
benefits accruing from non-commercial requests, the CIA sought to make it more difficult for
non-commercial requesters to obtain full review of the CIA’s declassification decisions in
response to their requests. Pls.’ Opp’n at 9–11 (explaining that, unlike an agency’s withholding
under FOIA, the CIA’s determinations in response to an MDR request are subject to de novo
review by the Interagency Security Classification Advisory Panel). According to the plaintiffs,
allowing the CIA to avoid de novo review of its declassification decisions in response to MDR
requests raising significant public interest in disclosure “would be a perversion of the law” and a
direct violation of the IOAA. Id. at 11. The defendants counter that, to the extent that the
agency’s processing of an MDR request conveys a benefit to the general public, any such benefit
is a consequence of, and entirely dependent on, the original private benefit conveyed to the
requester. Defs.’ Reply at 9. Since the plaintiffs identify no independent public interest served
by the disclosure of declassified material, the defendants argue, the IOAA does not bar the
21
recovery of the full cost of processing both commercial and non-commercial requests. Id. at 9–
10 & n.7.
The Circuit has never squarely addressed the question whether an agency must prorate
fees charged to a private party to reflect accompanying public benefits. Nevertheless, existing
precedent supports the defendants’ contention that the plaintiffs’ arguments on this point are
“baseless.” Id. at 9. As the defendants correctly note, before Seafarers International, the D.C.
Circuit observed that “whether an agency must allocate a portion of its costs depends not so
much on the magnitude of the benefits to the public, . . but rather on the nature of the public
benefits and on their relationship to the private benefits produced by the agency action.” Cent. &
S. Motor Freight Tariff Ass’n, Inc. v. United States, 777 F.2d 722, 731 (D.C. Cir. 1985). That is,
“[i]f the asserted public benefits are the necessary consequence of the agency’s provision of the
relevant private benefits, then the public benefits are not independent, and the agency would
therefore not need to allocate any costs to the public.” Id. at 731–32. The Seafarers
International Court further explained that “a reviewing court, in deciding whether an agency
may exact a fee in connection with a particular [service], need not pause to weigh the relative
public and private interests underlying the [service], but can instead turn to the relevant statute to
determine the substantive requirements [imposed on the agency in connection with providing the
service].” Seafarers Int’l Union, 81 F.3d at 185. Taken together, these decisions strongly
suggest that agencies are not required to prorate costs, even in the case of a user likely to amplify
the public benefits of an agency service.
For their part, the plaintiffs offer no support for their contrary contention that the CIA
must adjust fees charged to MDR requesters to reflect the public interest aims of non-commercial
fee requests. See generally Pls.’ Opp’n at 9–11. In principle, the plaintiffs’ claim that the
22
current fee structure violates the IOAA stems from their view that, in order to comply with that
statute, any MDR fee regime must provide some measure of a public interest fee waiver like that
provided under the FOIA statutory fee provision. Id. at 7 (arguing that, like FOIA, “[o]nce an
agency releases information in response to an MDR request, that information is automatically
publicly available”). Even assuming that, as a policy matter, agencies should treat MDR
requests and FOIA requests similarly, however, the plaintiffs point to no statutory or other
provision requiring such parity. While both regimes undoubtedly were designed with the
public’s interest in open and transparent government in mind, Congress saw fit in enacting the
FOIA fee provision to provide relief for non-commercial requesters seeking to advance
identifiable public interests. By contrast, neither E.O. 13526 nor the implementing NARA
regulations require agencies to adopt a parallel fee regime for MDR requests. As a policy matter,
such a regime has much to commend it, but imposing such policy, absent any statutory or
regulatory mandate to do so, is beyond the purview of this Court
Absent such a mandate, the Court is persuaded that the agency’s decision to adopt its
current MDR Fee Structure was not arbitrary or capricious or otherwise contrary to law.
Accordingly, the defendants’ request for summary judgment as to Count Two is granted, and the
plaintiffs’ request for partial summary judgment on this issue is denied.
B. Administrative Exhaustion (Count Four)
The CIA asserts that NSC has not exhausted its administrative remedies as to request F-
2012-00857 (“Request 857”), which is one of two separate FOIA requests underlying Count
Four. Defs.’ Mem. Supp. Defs.’ Renewed Mot. Summ. J. (“Defs.’ Mem.”) at 12, ECF No. 74.
According to the CIA, Request 857 was “submitted the day before [the plaintiff] filed this
lawsuit and was not received until the day the lawsuit was filed.” Id. Consequently, in the
23
CIA’s view, NSC filed suit fewer than twenty days after Request 857 was filed, making this
Court’s resolution of this claim improper. Id. at 12–13. The plaintiffs counters that Request 857
was added to the present suit in the FAC, which was filed 21 days after the initial complaint in
this matter was filed and 22 business days after the request was submitted to the CIA. Pls.’
Opp’n at 12–13. Thus, according to the plaintiffs, NSC had constructively exhausted its
remedies as to Request 857 by the time the request was added to the suit. Id.
In general, FOIA requesters seeking to challenge an agency’s response to a particular
request must exhaust available administrative remedies before seeking relief in federal court.
Citizens for Responsibility & Ethics in Washington v. Fed. Election Comm’n (CREW), 711 F.3d
180, 184 (D.C. Cir. 2013); see also DeBrew v. Atwood, 792 F.3d 118, 124 (D.C. Cir. 2015)
(“[B]ecause the FOIA provides for an administrative appeal, ‘the FOIA’s administrative scheme
favors treating failure to exhaust as a bar to judicial review.’” (citing Hidalgo v. FBI, 344 F.3d
1256, 1259 (D.C. Cir. 2003))). This general exhaustion requirement notwithstanding, the statute
specifies that, once an agency receives a proper FOIA request, the agency must “determine
within 20 days (excepting Saturdays, Sundays, and legal public holidays) . . . whether to comply
with such request and shall immediately notify the person making such request of such
determination and the reasons therefor.” 5 U.S.C. § 552(a)(6)(A)(i). As the D.C. Circuit has
explained, the penalty for failing to abide by this twenty-working-day timeline “is that the
agency cannot rely on the administrative exhaustion requirement to keep cases from getting into
court.” CREW, 711 F.3d at 189–90.
Here, the parties agree that the plaintiffs’ challenge to the CIA’s response to Request 857
did not appear in the original complaint. See Compl. ¶¶ 57–62; see also Defs.’ Mem. at 12–13.
Rather, it appeared only in the Amended Complaint, which was filed twenty-two business days
24
after NSC originally submitted Request 857. FAC ¶¶ 63–66; see also Pls.’ Opp’n at 12.
Nonetheless, while recognizing that the Amended Complaint was filed after the twenty-day
exhaustion period, the defendant contends that it is “immaterial” that the plaintiffs’ Amended
Complaint replaced entirely its original Complaint and argues instead that the “relevant question
is whether the claim was exhausted when the plaintiff went to court.” Defs.’ Reply at 10
(emphasis added) (internal alterations, quotations and citations omitted).
In support, the CIA relies on Murthy v. Schafer, 579 F. Supp. 2d 110, 114–15 (D.D.C.
2008), but this non-binding authority is readily distinguishable. In Murthy, the plaintiff filed suit
in an employment discrimination action before the relevant statutory deadline for resolving one
of his claims administratively had expired and specifically named, in the initial Complaint, a
cause of action based upon the unexpired claim. Murthy, 579 F. Supp. 2d at 111–12. The
plaintiff later amended his Complaint after the 180-day period ended, and argued that the
amendment remedied any concern regarding his duty to exhaust available administrative
remedies. Id. at 114–15. Concluding that “the filing date, not the amendment date, is the
relevant one in assessing his failure to exhaust,” the Murthy Court dismissed the plaintiff’s
unexhausted claim as not properly before the court. Id. at 115.
While bearing certain superficial similarities to the present dispute, the crucial difference
between Murthy and the instant matter is that in Murthy the unexhausted claim was made in the
initial Complaint, which, presumably, would have caused the agency to cease “its administrative
review procedures” with respect to that claim. Defs.’ Mem. at 10. By contrast, here, the
plaintiffs made no allegation regarding Request 857 until after the twenty-business-day statutory
exhaustion period had elapsed. Thus, the defendant agency had no basis to presume that the
plaintiff would seek judicial review of its processing of this request prior to the conclusion of this
25
period, and there is no reason to believe that allowing this claim to proceed will disrupt any
ongoing administrative process.
For this reason, NSC has constructively exhausted its administrative remedies and the
defendants’ request for summary judgment on this issue is denied. Accordingly, the defendants’
request for summary judgment as to the merits of its withholdings in Count Four, see Defs.’
Mem. at 13 n.7, is addressed below, infra Part III.D.2.
C. Adequacy of Search Efforts
With these preliminary issues resolved, the Court turns next to the merits of the plaintiffs’
remaining FOIA challenges. As previously indicated, this discussion begins with a review of the
plaintiffs’ outstanding claims contesting the adequacy of the defendant agencies’ efforts to
identify records responsive to the plaintiffs’ FOIA requests at issue in Counts Seven and Sixteen.
1. Legal Standard
Upon receiving a FOIA request, federal agencies are “required to perform more than a
perfunctory search” to identify potential responsive records. Ancient Coin Collectors Guild v.
U.S. Dep’t of State, 641 F.3d 504, 514 (D.C. Cir. 2011). Instead, the agency bears the burden of
demonstrating that it “made a ‘good faith effort to conduct a search using methods which can be
reasonably expected to produce the information requested.’” DiBacco, 795 F.3d at 188 (internal
alterations omitted) (quoting Valencia–Lucena v. U.S. Coast Guard, 180 F.3d 321, 326 (D.C.
Cir. 1999)). To meet this burden, the agency must “demonstrate beyond material doubt that its
search was ‘reasonably calculated to uncover all relevant documents.’” Valencia-Lucena, 180
F.3d at 325 (quoting Truitt v. Dep’t of State, 897 F.2d 540, 542 (D.C. Cir. 1990)). At the
summary judgment stage, an agency may meet this burden by submitting a “‘reasonably detailed
affidavit, setting forth the search terms and the type of search performed, and averring that all
26
files likely to contain responsive materials (if such records exist) were searched.’” Ancient Coin
Collectors Guild, 641 F.3d at 514 (quoting Valencia–Lucena, 180 F.3d at 326). Such an
affidavit must “‘explain in reasonable detail the scope and method of the search conducted by the
agency.’” See Morley, 508 F.3d at 1121 (internal alterations omitted) (quoting Perry v.
Block, 684 F.2d 121, 127 (D.C. Cir. 1982)).
2. Analysis
The plaintiffs challenge the adequacy of the defendants’ search for records responsive to
Counts Seven and Sixteen, each of which addresses FOIA requests submitted by NSC to the
CIA. 8 The plaintiffs offer differing bases for challenging the CIA’s search efforts with respect to
these requests. For this reason, these challenges are addressed separately for each count below.
a) Count Seven
First, in Count Seven, NSC contests the CIA’s response to its request for “any and all
declarations or affidavits filed by the Director (or his designee) of the Central Intelligence
Agency (‘CIA’) in three [prior FOIA] lawsuits wherein the states secrets or executive privilege
was invoked.” Decl. Martha M. Lutz (Apr. 25, 2014) (“Lutz Decl.”) ¶ 40, ECF No. 74-4.
Seeking summary judgment, the CIA explains that the agency determined that the Office of
General Counsel (“OGC”) “was the only office reasonably likely to maintain records responsive
to NSC’s FOIA request seeking copies of declarations or affidavits filed in federal litigation.”
Id. ¶ 45. Thus, to identify potentially responsive records, OGC staff “conducted a search of its
electronic and hard copy files for any records pertaining to: the executive privilege, state secrets
8
The plaintiffs initially challenged the adequacy of the defendants’ search for records pertaining to six of the
plaintiffs’ claims, see Pls.’ Opp’n at 13 (challenging search efforts in Counts Three, Seven, Ten, Sixteen, Twenty,
and Twenty-Six), but has now abandoned other challenges not addressed herein, see Pl.’s Surreply Opp’n Defs.’
Mot. (“Pl.’s Surreply”) at 3–4, ECF No. 89 (abandoning adequacy of search claims for Counts Three, Ten, and
Twenty); Joint Summ. at 3 (indicating that only the plaintiffs’ challenges in Counts Seven and Sixteen remain in
dispute). Consequently, summary judgment is granted to the defendants as to the adequacy of their search for
records responsive to the FOIA requests at issue in all other counts.
27
privilege, invoked privileges, and the party names for each of the federal court cases NSC
included in its request.” Id. ¶ 46. Based on this search, the agency identified ten responsive
records responsive, eight of which have been released in full and two of which have been
withheld in full. Id. ¶ 46; Pls.’ Opp’n. at 14.
Arguing that the CIA’s search was inadequate, the plaintiffs note that four of the released
documents “explicitly reference[] other responsive records” that were not produced to NSC. Id.
Specifically, the plaintiffs point to the following referenced documents not produced to NSC: (1)
a copy of a CIA regulation that was attached to one of the produced affidavits; (2) a classified
affidavit submitted for in camera review by the Secretary of Defense in a FOIA action litigated
in the 1970s; (3) an additional classified declarations submitted for in camera review in a second
case from the 1980s. Pls.’ Opp’n. at 15. The plaintiffs further suggest that the agency has yet to
explain why these materials, which the plaintiffs assert are responsive to NSC’s request, were not
accounted for in the CIA’s response to that request. Id. at 14–15. Though recognizing that mere
speculation regarding the existence of undiscovered records does not render an agency’s search
inadequate, the plaintiffs suggest that the three purportedly responsive documents they have
identified “satisf[y] the threshold for a finding that the [CIA’s] search was inadequate.” Id. at
16.
In response, the agency notes that each of the records identified by the plaintiffs was
either produced to NSC or not responsive to NSC’s underlying FOIA request. In particular, the
agency’s declarant explains that the CIA regulation identified by the plaintiffs, which itself is not
an affidavit or declaration and therefore arguably not responsive to NSC’s request, was produced
to NSC along with the responsive affidavit to which it was attached. Decl. Martha M. Lutz (July
11, 2014) (“Sec. Lutz Decl.’) ¶ 11, ECF No. 84-1. Indeed, the record produced to NSC, which
28
the agency provided to the Court, clearly demonstrates that the regulation at issue was produced
in connection with the responsive affidavit. See id., Ex. C at 7 (bearing the same internal
tracking number as the affidavit itself). In light of this evidence, the plaintiffs’ effort to cast the
agency’s prior declarations averring that this document was included in its initial production as
an instance of the agency’s “lack of candor,” Pl.’s Surreply Opp’n Defs.’ Mot. (“Pl.’s Surreply”)
at 4–5, ECF No. 89, is somewhat ironic. On the contrary, the evidence submitted by the parties
more readily supports the credibility of the agency’s description of the relevant search and
subsequent production in response to NSC’s request.
Along similar lines, the plaintiffs’ speculation regarding the existence of additional, as-
yet undiscovered affidavits or declarations falling within the scope of its request is far too thin a
reed to support its present contention that the agency’s search was inadequate. The CIA does not
dispute that two affidavits produced to NSC refer to other declarations and affidavits submitted
by the government in the relevant FOIA actions. Defs.’ Mem. at 13. Instead, the agency’s
declarant explains that these latter declarations and affidavits “are not from the Director of
Central Intelligence or his designee, nor are they identified as such in the released documents.”
Sec. Lutz Decl. ¶ 12. Given that NSC’s request was explicitly limited to materials “filed by the
Director (or his designee) of the Central Intelligence Agency (‘CIA’),” the agency argues that the
failure to produce these other materials in response to NSC’s FOIA request “do[es] not cast
doubt on the adequacy of the CIA’s search.” Defs.’ Mem. at 13. The plaintiffs counter that
language describing these other, unreleased declarations makes clear that they fell within the
scope of NSC’s original request. Pl.’s Surreply at 3–4. In particular, the plaintiffs note that the
then-Director of Central Intelligence explained in a produced declaration that additional ex parte
declarations were “made available to the Court by Special Agents of the CIA” and “maintained
29
pursuant to appropriate security procedures at CIA Headquarters.” Id. at 8. (emphasis omitted).
Relying on this language, the plaintiffs dismiss as “disingenuous” the CIA’s assertion that the
referenced declarations were not responsive to NSC’s FOIA request. Id.
To a degree, the parties’ present dispute turns less on the adequacy of the CIA’s search
efforts than on the proper scope of NSC’s original request. For instance, the language
highlighted by the plaintiffs leaves some ambiguity as to who prepared any other declarations
proffered by the government in the relevant cases. Interpreted broadly, NSC’s request for
declarations “filed by” the Director of Central Intelligence or his designee may be understood to
encompass declarations produced by others that were nonetheless filed by these identified
officials. LaCedra v. Executive Office of U.S. Attorneys, 317 F.3d 345, 348 (D.C. Cir. 2003)
(explaining that agencies generally must “construe a FOIA request liberally”). Even granting
such a broad construction, however, the plaintiffs provide little to suggest that the agency
conducted an inadequate search. Indeed, the agency’s declarant specifically notes that OCG
“searched its records for declarations asserting the state secrets privilege or executive privilege
or generally invoking privilege in the named cases without limiting such searches to declarations
by the Director of Central Intelligence or [his] designee.” Sec. Lutz Decl. ¶ 12 (emphasis
added). By expanding its search to include any declarations filed in the cases identified by NSC
that invoked any privilege to withhold responsive records, the agency effectively mitigated any
remaining ambiguity in its initial interpretation of NSC’s request.
In sum, while the plaintiffs may be correct that the agency did provide declarations filed
by the government in the cases identified in NSC’s FOIA request, they point to no evidence in
the record showing that any such declarations were responsive to that request. To the extent that
the plaintiffs now seek these additional declarations, they are free to attempt to obtain those
30
records through a second, more broadly worded request. In this case, however, the agency has
met its burden of demonstrating that its search for responsive records was “reasonably calculated
to uncover all relevant documents.” Valencia-Lucena, 180 F.3d at 325 (internal quotations
omitted).
b) Count Sixteen
In Count Sixteen, the plaintiffs challenge the CIA’s search efforts in response to NSC’s
request for records “pertaining to the search tools and indices available to the components in the
Director of the Central Intelligence Agency Area (‘DCIA Area’) for conducting searches of their
respective records in response to FOIA requests.” Lutz Decl. ¶ 87. In its request, NSC
explained that it sought both records that describe any such search tools and indices, as well as
the “actual contents of the indices[, i.e.], if an index contains 1000 terms that can be used in a
search, then [NSC sought] a list of those 1000 terms.” Id. ¶ 88. Since this request referred to
records maintained by the Director’s Area, the agency tasked only that directorate with searching
for potentially responsive documents. Id. ¶ 92. Specifically, the agency’s declarant explains that
individuals with personal knowledge of the search tool and indices used by Director’s Area
searched the Area’s electronic records systems and conducted a manual search for records
potentially responsive to NSC’s request. Id. ¶ 93. These searches yielded two responsive
documents, one of which was released to NSC in redacted form and the other of which was
withheld in full. Id. ¶ 94.
Contending that the agency has failed to conduct an adequate search, the plaintiffs
contrast NSC’s present request with a separate, but similar, request at issue in one of the related
cases filed by NSC prior to the instant action. See Pls.’ Opp’n at 19–25; supra note 1 (describing
related cases). In this earlier request, NSC sought the same categories of materials, i.e., records
31
pertaining to search terms and indices, from the CIA’s Office of Information Management
Services (“IMS”). Nat’l Sec. Counselors v. CIA (NSC II), 960 F. Supp. 2d 101, 127 (D.D.C.
2013). After the CIA identified only three responsive records, NSC challenged the agency’s
search on the grounds that the agency: (1) failed to identify any responsive search indices; and
(2) declined entirely to search certain agency databases for responsive records. Id. at 152.
Denying summary judgment, this Court agreed that the agency’s “vague and conclusory”
description of its search provided no assurance that the agency conducted an adequate search in
response to NSC’s request. Id. The agency was afforded an additional opportunity, however, to
explain “what parameters were used to accomplish [its] search, i.e., whether the CIA searched
for the indices themselves or what search terms the CIA used to identify responsive records.” Id.at 151–53. In response, the CIA more recently provided additional information regarding its
search, as well as further explanation regarding the means by which IMS personnel search their
own records systems. Nat’l Sec. Counselors v. CIA, Nos. CV 11-443, 11-444, 11-445, 2016 WL
4621060, at *11 (D.D.C. Sept. 6, 2016) (indicating that “the two databases used primarily by
IMS staff to conduct searches of its own records included neither indices nor automated search
tools to identify potentially responsive records”). In light of this more fulsome description, the
Court granted the CIA’s renewed request for summary judgment as to the adequacy of its search
efforts in that case. Id.This most recent decision notwithstanding, the request at issue here sweeps far more
broadly than the request previously considered by the Court. While NSC previously sought only
records from within IMS, NSC now seeks similar material from the entire Director’s Area, which
is comprised of multiple CIA officesincluding IMS“directly responsible to the Director of
the CIA.” Pls.’ Opp’n at 23 (quoting Lutz Decl. ¶ 13). Emphasizing the broader scope of this
32
more recent request, the plaintiffs suggest that the agency’s failure to identify more responsive
documents demonstrates that the agency failed to conduct an adequate search. For instance, the
plaintiffs suggest that publicly available sources “identify at least eighteen different records
systems in fifteen offices [in the Director’s Area], each of which presumably has search tools and
indices.” Id. at 25. Likewise, the plaintiffs point to numerous declarations filed by the CIA in
this case and others indicating that agency personnel regularly consider which “search tools,
indices, and terms to employ” to identify potentially responsive records. Id. at 20–21 (emphasis
omitted) (quoting relevant filings). Supposing that records pertaining to these search tools and
indices must be maintained by the larger group of offices captured by NSC’s current request, the
plaintiffs argue that the agency’s identification of only two responsive records was
presumptively inadequate. Id.In response, the CIA argues that the plaintiffs, in opposing summary judgment, assert for
the first time that NSC intended the terms “search tools” and “indices” to “have the same
meaning as used in declarations drafted by CIA attorneys in litigation.” Defs.’ Reply at 16. So
construed, the defendants’ argue, NSC’s request for all records “pertaining to the search tools
and indices available to” each component of the Director’s Area is “breathtakingly broad.” Id.For example, the defendants suggest that such an interpretation would require the agency to
produce “standard training and help documents regarding search functions for [standard email
programs and operating systems], and on and on, through every searchable program and system
in more than a dozen components and suboffices.” Id. at 16–17. Suggesting that such a request
would be unduly burdensome, the agency argues that its interpretation of NSC’s request as
seeking “records describing generally how components in the Director’s Area search their
records” was reasonable. Id. at 17 (citing Sec. Lutz Decl. ¶ 18). The plaintiffs contest this
33
characterization and argue that, even construed liberally, NSC’s present request would be no
more burdensome that other searches the agency has conducted in response to similarly broad
FOIA requests. Id.Setting aside the parties’ dispute regarding the likely burden imposed by the search
envisioned by the plaintiffs, the CIA has failed to demonstrate that it conducted an adequate
search under even its preferred interpretation of the plaintiff’s initial request. Indeed, the
description offered by the agency is markedly similar to the initial description provided by the
agency, and rejected by this Court, in connection with NSC’s narrower request for search
materials used by IMS. There, as here, the agency’s declarant averred simply that personnel
responsible for conducting searches within the relevant agency components reviewed their own
records to attempt to identify documents responsive to NSC’s current request. Compare NSC II,
960 F. Supp. 2d at 151 (explaining that the CIA’s declarant in that case explained that NSC’s
request “was sent to IMS professionals who had personal knowledge of what search tools and
indices were available and personally used by IMS personnel to search IMS records systems
because they themselves use the search tools and indices references in the request,” and that
those employees “electronically searched the IMS records system as well as manually searched
for independently known records that were responsive to Plaintiff’s request”); Sec. Lutz Decl. ¶
18 (averring that NSC’s present request was assigned to “Information Management Technology
Officers assigned to the Director’s Area – who had personal knowledge of how Director’s Area
records systems are searched because they themselves search Director’s Area records systems”
and that these employees “searched electronically for responsive documents and manually
searched for independently known responsive documents”). Thus, in both instances, the agency
provided little information regarding “what parameters were used to accomplish the search, i.e.,
34
whether the CIA searched for the indices themselves or what search terms the CIA used to
identify responsive records.” NSC II, 960 F. Supp. 2d at 152. While the agency has more
recently supplemented its initial declarations in the related case with a more detailed description
of its search for responsive IMS records, the agency has thus far offered no such clarification
here. This lack of specificity is particularly problematic given the apparent discrepancies
between the ultimate returns from each of these related searches. For instance, the agency has
provided no explanation for the fact that NSC’s original request, which sought search materials
from IMSa subcomponent of the Director’s Areayielded more results than NSC’s present,
more broadly framed request for such materials from the entire Director’s Area. Compare NSC
II, 960 F. Supp. 2d at 127 (indicating that the CIA’s search within IMS yielded three documents)
with Lutz Decl. ¶ 94 (indicating that agency’s search of the entire Director’s Area yielded only
two documents).
In sum, the agency has failed to demonstrate that its search in response to NSC’s more
broadly framed request was reasonably designed to identify responsive records in each of the
components comprising the Director’s Area. Accordingly, the defendants’ request for summary
judgment on Count Sixteen with respect to the adequacy of the CIA’s search is denied.
* * *
To summarize, summary judgment is granted to the CIA on Count Seven and denied on
Count Sixteen with regard to the adequacy of the CIA’s search. With respect to Count Sixteen,
however, further explication by the CIA may demonstrate that the search was, indeed, adequate,
such that summary judgment for the CIA is appropriate. Consequently, the CIA is provided an
opportunity to supplement its initial declarations as to its search for documents responsive to the
plaintiffs’ request.
35
D. Remaining Challenged Withholdings
With the plaintiffs’ challenges to the CIA’s search efforts resolved, consideration of the
pending motions concludes with a review of the parties’ remaining disputes regarding the
defendants’ responses to twelve FOIA requests submitted to either the CIA or ODNI. First, in
Count Eleven, the plaintiffs challenge the CIA’s refusal to confirm or deny the existence of
records responsive to NSC’s request for records related to the destruction of the CIA’s office at
the World Trade Center on September 11, 2001. Beyond this blanket denial, the plaintiffs
contest the defendants’ withholding, in full or in part, of ninety-five documents responsive to ten
of the plaintiffs’ FOIA requests. Combined Vaughn Index at 1–17. Specifically, the plaintiffs
challenge the defendants’ withholdings under Exemptions 1, 3, and 5 of materials responsive to
the requests at issue in Counts Four, Seven, Eight, Nine, Ten, Sixteen, Seventeen, Twenty,
Twenty-One, and Twenty-Three. Id. In many instances, the defendants invoke multiple
exemptions to justify their withholdings in response to these requests.
To facilitate review of these remaining challenges, the discussion that follows addresses
the challenged withholdings in order, beginning with the CIA’s refusal to confirm or deny the
existence of records responsive to the FOIA request at issue in Count Eleven, as well as the
ODNI’s complete withholding of two documents in Count Twenty-Three, under Exemption 1
and E.O. 13526. 9 Next, the CIA’s decision to withhold all or part of ninety-two documents,
pursuant to Exemption 3 and either the Central Intelligence Agency Act (“CIA Act”), 50 U.S.C.
§ 3507, or the National Security Act, 50 U.S.C. § 3024(i), is considered. Finally, the CIA’s
9
The CIA also relies on Exemption 1 to support its withholdings in Counts Seven, Eight, Nine, and Ten, and
Twenty-One, with the plaintiffs contesting each of numerous such withholdings on both procedural and substantive
grounds. Combined Vaughn Index at 2–16; Pls.’ Opp’n at 43–46; Pls.’ Surreply at 11–14. Since the Court
ultimately resolves the parties’ substantive disputes with respect to these records in the context of Exemption 3, the
Court need not consider the procedural issues raised by the plaintiffs in challenging the agency’s alternative basis for
withholding these records in full or in part.
36
withholding of portions of one document responsive to the FOIA request at issue in Count
Twenty, pursuant to deliberative process privilege and Exemption 5, is reviewed.
1. Exemption 1
Under FOIA Exemption 1, records that were “[s]pecifically authorized under criteria
established by an Executive order to be kept secret in the interest of national defense or foreign
policy and . . . are in fact properly classified pursuant to such Executive order” may be withheld
from disclosure. 5 U.S.C. § 552(b)(1). Thus, to withhold information under Exemption 1, an
agency must show that the information has been classified in compliance with the classification
procedures set forth in the applicable Executive Order and that only information conforming to
that Order’s substantive criteria for classification has been withheld. See ACLU v. U.S. Dep’t of
Justice, 640 F. App’x 9, 10–11 (D.C. Cir. 2016); Judicial Watch, 715 F.3d at 941 (discussing
“substantive and procedural criteria for classification”); Lesar v. Dep’t of Justice, 636 F.2d 472,
483 (D.C. Cir. 1980) (“To be classified properly, a document must be classified in accordance
with the procedural criteria of the governing Executive Order as well as its substantive terms.”).
“‘[S]ubstantial weight [is accorded] to an agency’s affidavit concerning the details of the
classified status of . . . disputed record[s]’” “‘[b]ecause courts lack the expertise necessary to
second-guess . . . agency opinions in the typical national security FOIA case.’” ACLU, 640 F.
App’x at 11 (quoting ACLU, 628 F.3d at 619) (internal quotation marks and citations omitted;
third and fourth alterations in original).
Here, the defendants assert that information withheld under Exemption 1 is properly
classified under either § 1.4(b) or § 1.4(c) of E.O. 13526, which protect from disclosure “foreign
government information” and information concerning “intelligence activities (including covert
action), or intelligence sources or methods.” E.O. 13526 §§ 1.4(b), (c); Lutz Decl. ¶ 151; Decl.
37
Jennifer L. Hudson (June 27, 2013) (“Hudson Decl.”) ¶ 35, ECF No. 74-8. Beyond withholding
particular records in whole or in part, this Order permits agencies responding to a FOIA request
to “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.”
E.O. 13526 § 3.6(a). Such a response is referred to in the FOIA context as a “Glomar
response.” 10
a) Count Eleven – CIA Glomar Response
Count Eleven centers on NSC’s request for all CIA records “documenting any loss of
records from the destruction of the CIA office in 7 World Trade Center (“WTC”) on 11
September 2001.” FAC ¶ 109. Two weeks after receiving this request, the CIA issued its final
response to NSC, which stated, in relevant part, “in accordance with section 3.6(a) of Executive
Order 13526, the CIA can neither confirm nor deny the existence or nonexistence of records
responsive to your request. The fact of the existence or nonexistence of requested records is
currently and properly classified. . . . Therefore, your request is denied pursuant to FOIA
exemptions (b)(1) and (b)(3).” Lutz Decl. ¶ 66. In other words, the agency denied NSC’s
request and issued a Glomar response, pursuant to FOIA Exemptions 1 and 3.
10
Glomar responses are “named for the Hughes Glomar Explorer, a ship used in a classified CIA project ‘to
raise a sunken Soviet submarine from the floor of the Pacific Ocean to recover the missiles, codes, and
communications equipment onboard for analysis by United States military and intelligence experts.’” Roth v. U.S.
Dep't of Justice, 642 F.3d 1161, 1171 (D.C. Cir. 2011) (quoting Phillippi v. CIA, 655 F.2d 1325, 1327 (D.C. Cir.
1981)). In the 1986 Freedom of Information Reform Act, Congress codified in 5 U.S.C. § 552(c) the use of
a Glomar response for the following three limited categories of agency records: (1) law enforcement records
described in 5 U.S.C. § 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 (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. Drug Enf’t Admin., 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”).
38
The plaintiffs challenge this response on both procedural and substantive grounds. First,
procedurally, the plaintiffs contend that the fact that records responsive to NSC’s FOIA request
do or do not exist, which the plaintiffs describe as the “Glomar fact,” has not itself been properly
classified and, as a result, the CIA may not rely on FOIA Exemption 1 to withhold this
information. Pls.’ Opp’n at 47–51. Second, substantively, the plaintiffs argue that, because the
existence of the CIA’s WTC office has been reported by various fora, the agency cannot now
assert that the existence of that office remains classified. Id. at 51–53.
Turning first to the plaintiffs’ procedural objection, this Court has considered and
rejected this exact argument in Mobley v. CIA, 924 F. Supp. 2d 24, 47 (D.D.C. 2013), aff’d on
other grounds, 806 F.3d 568 (D.C. Cir. 2015). There, as here, the FOIA applicant argued that
the CIA’s Glomar response was procedurally unsound where the agency failed to show that it
followed the necessary steps in asserting that the existence or nonexistence of records responsive
to the plaintiff’s FOIA request was classified. Id. at 47. In both instances, the perceived
procedural flaw was the agency’s failure to establish either the date on which this information
was determined to be classified or the duration of this classification. Id. at 48; Pls.’ Opp’n at 47.
While noting that this view finds some support in the text of E.O. 13526, Mobley, 924 F. Supp.
2d at 47, the Court in Mobley ultimately relied on the D.C. Circuit’s interpretation of the
identical provision in a predecessor Executive Order to hold that “if the agency affidavit
plausibly explains the danger of the expected damage to national security or foreign relations
from confirming or denying the existence of records, the existence of records vel non is properly
classified under Executive Order 12958 and justifies the Agency’s invocation of Exemption 1,”
id. at 50 (internal quotations and alterations omitted) (quoting Wolf v. CIA, 473 F.3d 370, 376
(D.C. Cir. 2007)).
39
While the plaintiffs acknowledge that the Court has already thoroughly considered and
rejected this argument, they offer an additional affidavit from a purported “expert witness on the
meaning of [E.O. 13526] and classification policy” to bolster their argument that the Court
should revisit its earlier holding. Pls.’ Opp’n at 47 n.38. 11 This additional evidence aside, the
plaintiffs’ rehashed arguments provide no basis for reconsidering the Court’s prior resolution of
this issue. As before, recognizing the fundamental difference between a Glomar response and
other classified information, as well as longstanding principle that FOIA does not require
agencies to create records in response to FOIA requests, the CIA is not required to establish a
declassification timeline in order to “properly classif[y]” a Glomar fact under Executive Order
13526. Accord Mobley, 924 F. Supp. 2d at 49. As such, the agency followed the proper
procedures in declining to confirm or deny the existence of agency records responsive to NSC’s
FOIA request.
The plaintiffs’ substantive objection to the CIA’s Glomar rests on their contention that,
because the existence of the CIA’s WTC office has been reported by the news media and
acknowledged in official materials prepared by two other agencies, the CIA cannot now assert
that the existence of this office remains properly classified. Pls.’ Opp’n at 51–53. In support,
the plaintiffs correctly note that, where classified information has been officially acknowledged,
“its disclosure may be compelled even over an agency’s otherwise valid exemption claim.” Pls.’
Opp’n at 51 (citing authorities). With this in mind, the plaintiffs highlight two news articles,
each published soon after the September 11, 2001 attacks, describing the destruction of the
11
Setting aside the questionable tactic of offering an “expert witness” to opine on the proper interpretation of
an Executive Order, see Burkhart v. Washington Metro. Area Transit Auth., 112 F.3d 1207, 1213 (D.C. Cir. 1997)
(“Each courtroom comes equipped with a ‘legal expert,’ called a judge[.]”), the legal opinions offered by the
plaintiffs’ witnesswho, despite his notable experience and qualifications, is not an attorney, see Pls.’ Opp’n, Ex. l
at 4, ECF No. 77-25essentially parrot those advanced by the plaintiffs themselves.
40
CIA’s WTC office and agency efforts to recover records previously stored at that office. Id. at
51–52. According to the plaintiffs, the publication of these two articles in short succession
suggests that the information reported therein was officially disclosed to the articles’ authors. Id.
at 52. Along similar lines, the plaintiffs point to recent reports prepared by the National Institute
of Standards and Technology and the Federal Emergency Management Agency recognizing this
office as evidence that these agencies “presumably” consulted with the CIA in connection with
this disclosure. Id.
The plaintiffs concede that, in order to be officially acknowledged, information must
“have been made public through an official and documented disclosure,” id. (citing Fitzgibbon v.
CIA, 911 F.2d 755, 765 (D.C. Cir. 1990)), and that disclosure by one agency does not preclude
another agency from withholding that information as classified, id.; see Frugone v. CIA, 169
F.3d 772, 774 (D.C. Cir. 1999) (“[W]e do not deem ‘official’ a disclosure made by someone
other than the agency from which the information is being sought.”). Nonetheless, while
pointing to no official, documented disclosure by the CIA of the existence of a WTC office, the
plaintiffs rely on these cited materials to suggest that “[f]or [the] CIA to maintain that the
existence of this office is still properly classified is to strain credulity to the breaking point.”
Pls.’ Opp’n at 52–53.
The plaintiffs’ incredulity notwithstanding, their suggestion that the CIA has officially
acknowledged the existence of a WTC office rests entirely on their own speculation as to steps
“presumably” taken by the agency in connection with prior disclosure of this information by
others. Id. at 52 (emphasis added). Moreover, contrary to the plaintiffs’ view that the CIA has
failed to refute such speculation, Pls.’ Surreply at 14, the agency’s declarant explicitly avers that
the “CIA has not officially acknowledged the existence or non-existence of a clandestine CIA
41
office at the location at issue in [NSC’s FOIA] request.” Sec. Lutz Decl. ¶ 30. Put simply,
confronted with the agency’s explicit disavowal of any formal disclosure, the plaintiffs’ reliance
on stray references in four documents prepared by sources outside the agency over the course of
thirteen years is insufficient to demonstrate that the agency has in fact officially disclosed
information it now seeks to withhold.
Consequently, summary judgment is granted to the defendants as to the CIA’s issuance of
a Glomar response in Count Eleven.
b) Count Twenty-Three – ODNI Exemption 1 Withholdings
Beyond challenging the agency’s use of a Glomar response in Count Eleven, the
plaintiffs’ contest the ODNI’s withholding, under Exemption 1, of two documents responsive to
the FOIA request at issue in Count Twenty-Three. Combined Vaughn Index at 18. Count
Twenty-Three stems from NSC’s submission of a FOIA request to ODNI seeking all records
“describing, discussing, implementing, or authorizing delegations or authorizations made by the
ODNI to other government agencies that allow them to take independent action to ‘protect
intelligence sources and methods’ pursuant to [the National Security Act].” Hudson Decl. ¶ 17.
In connection with this request ODNI identified seventeen responsive documents, four of which
were initially produced to NSC in full, and thirteen of which were withheld in full. Id. ¶ 19.
Upon re-review, the agency later released three of the records originally withheld in full in
redacted form to NSC. Id. ¶ 22.
Of the remaining withheld documents, “five are classified internal [Staff Summary Forms
(“SSFs”)], which are internal forms used within the ODNI to properly and thoroughly document
staff actions and recommendations for senior officials.” Id. ¶ 37. Such documents “are used
when ODNI staff is seeking approval of a particular action, signature on a document, or for
42
purely informational purposes.” Id. In particular, the SSFs withheld here “provided the DNI
with information about the relevant cases and requested that the DNI authorize other
[intelligence] agencies to rely on the National Security Act to protect sources and methods
information in certain records in various types of cases including a court martial, a criminal
prosecution, and FOIA cases.” Id. According to ODNI’s declarant, “[a]cknowledging the
involvement of one or more [intelligence] agencies in these cases would compromise specific
sources, intelligence interests and methods implicated in the underlying litigation.” Id. This
information is thus classified as SECRET, with the agency’s declarant explaining that its
disclosure “could reasonably be expected to cause serious damage to national security.” Id.
The plaintiffs limit their challenge to ODNI’s withholdings in Count Twenty-Three to
SSFs pertaining to FOIA cases, Pls.’ Opp’n at 42 n.36, of which the final Combined Vaughn
Index indicates there are two, see Combined Vaughn Index at 17–18. Contending that the
agency’s submissions lack sufficient “evidentiary support” to meet the agency’s burden of
justifying its withholding, the plaintiffs argue that the agency’s declarant offers no basis for
concluding that the SSFs at issue here were properly withheld in full. Pls.’ Opp’n at 53.
Specifically, the plaintiffs suggest that, even crediting the assertion that an agency’s involvement
in a particular FOIA action is properly classified, “that . . . does not mean that there is no
segregable information in the documents in question.” Pls.’ Surreply at 14. For instance, the
plaintiffs propose redacting any case names, such that the redacted SSF “would simply reveal
that certain agencies were involved in an unknown case.” Id. Alternatively, “releasing
everything except the names of the agencies would simply reveal that unknown agencies were
involved in a particular case.” Id. In either event, the plaintiffs argue, the released materials
43
would avoid any risk of acknowledging the involvement a particular agency in identifiable FOIA
actions. Id.
The plaintiffs raised the possibility of releasing purportedly segregable material in the
SSFs only in their Surreply, see generally Pls.’ Opp’n, leaving the defendants with little
opportunity to respond directly to the plaintiffs’ proposed course. In any event, however, the
agency’s declarant avers that, based on her “line-by-line” review of the withheld SSFs, “[n]o
non-exempt information is reasonably segregable from the documents, and no other information
about these documents can be provided on the public record.” Decl. Jennifer Hudson (June 27,
2014) (“Sec. Hudson Decl.”) ¶¶ 13, 20, ECF No. 84-2. The agency’s declarant elsewhere
explains that the withheld SSFs “provided background and rationale behind [each] request for
the DNI’s approval [to rely on the National Security Act to protect intelligence activities, sources
and methods] and provide a section that identified which offices concurred with the
recommendation.” Id. ¶ 17. Given that the withheld records would, by their very nature, include
a detailed description of the nature of a particular FOIA action and the national security interests
at play in each underlying FOIA request, it not illogical that any non-exempt information
included in these documents would not be reasonably segregable. In particular, there is little
reason to believe that the simple removal of case names or information identifying the agencies
involved in a particular case would sufficiently protect the important intelligence interests and
methods described by the ODNI’s declarant. Finally, the ODNI’s assurances in this regard are
bolstered by the agency’s decision, after re-review of the records identified in its initial search to
partially release three additional records that were previously withheld in full. Hudson Decl. ¶
29; accord Looks Filmproduktionen GmbH v. CIA, No. CV 14-1163 (BAH), 2016 WL 4186652,
at *15 (D.D.C. Aug. 5, 2016).
44
For these reasons, the defendants’ request for summary judgment as to ODNI’s
withholdings in connection with Count Twenty-Three is granted. Since the Court determines
that the disputed SSFs may be withheld in full under Exemption 1, the Court need not consider
whether, as the agency suggests, these materials are exempt from disclosure under either the
attorney/client or the deliberative process privilege.
* * *
In sum, summary judgment is granted to the defendants with respect to the CIA’s use of a
Glomar response in Count Eleven. Likewise, summary judgment is granted to the defendants
with respect to ODNI’s withholdings in Count Twenty-Three.
2. Exemption 3
The plaintiffs continue to challenge the complete or partial withholding, under FOIA
Exemption 3, of ninety-two responsive records by the CIA. See Joint Summ. at 3; Combined
Vaughn Index at 1–17. These withheld records are responsive to the FOIA requests at issue in
Counts Four, Seven, Eight, Nine, Ten, Sixteen, Seventeen, Twenty, and Twenty-One. See
Combined Vaughn Index at 1–17. Following a brief summary of the legal principles underlying
the Court’s review, these challenged withholdings are addressed below.
As relevant here, Exemption 3 applies to matters “specifically exempted from disclosure
by statute . . . if that statute” either (1) “requires that the matters be withheld from the public in
such a manner as to leave no discretion on the issue,” or (2) “establishes particular criteria for
withholding or refers to particular types of matters to be withheld.” See 5 U.S.C. § 552(b)(3).
The D.C. Circuit has explained that “Exemption 3 differs from other FOIA exemptions in that its
applicability depends less on the detailed factual contents of specific documents; the sole issue
for decision is the existence of a relevant statute and the inclusion of withheld material within the
45
statute’s coverage.” Morley v. CIA, 508 F.3d 1108, 1126 (D.C. Cir. 2007) (quoting Ass’n of
Retired Rail Road Workers v. U.S. Rail Road Retirement Board, 830 F.2d 331, 336 (D.C. Cir.
1987)).
Ten of the plaintiffs’ remaining Exemption 3 challenges stem from the agency’s
withholdings pursuant to Section 6 of the CIA Act, 50 U.S.C. § 3507, while the remaining
eighty-two challenged withholdings arise under the National Security Act, 50 U.S.C. § 3024(i).
See Combined Vaughn Index at 1–17. The Supreme Court has held, and the plaintiffs do not
contest, that both of these statutes are “withholding statutes” for the purposes of Exemption 3.
Davy v. CIA, 357 F. Supp. 2d 76, 86 (D.D.C. 2004) (citing CIA v. Sims, 471 U.S. 159 (1985)). In
the plaintiffs’ view, however, the agency improperly withheld certain information that is
protected by neither statute. Pls.’s Opp’n at 42. The challenged withholdings under each statute
are discussed in turn below.
a) CIA Act
The plaintiffs challenge the CIA’s withholdings under the CIA Act in ten records
responsive to the FOIA requests at issue in Counts Four, Sixteen, and Seventeen. Combined
Vaughn Index at 1, 16–17. 12 Section 6 of the CIA Act provides that the CIA “shall be exempted
from the . . . provisions of any other law which require[s] the publication or disclosure of the
organization, functions, names, official titles, salaries, or numbers of personnel employed by” the
agency. 50 U.S.C. § 3507.
12
The exact number of records still at issue is somewhat unclear. The plaintiffs’ Opposition indicates that the
plaintiffs continue to challenge withholdings in eleven records, Pls.’ Opp’n at 58, but identifies, at turns, nine or ten
such documents, compare id. at 42 (indicating that “CIA Doc. Nos. 47, 221–22, 224–25, 245, and 555–58” remain
in dispute) with id. at 58 (listing, as documents in dispute, “Doc. Nos. 47, 221–22, 224–25, 245 . . . , 555 . . . , and
557–58”). In any event, the final Vaughn index provided by the parties includes ten documents for which the
agency’s CIA Act withholdings remain in dispute, Combined Vaughn Index at 1, 16–17, and the Court will thus
consider the agency’s withholdings under the CIA Act in each of these records.
46
In a separate action involving NSC, the Court rejected the CIA’s broad interpretation of
this language to conclude that the CIA may not presumptively withhold pursuant to this section
information that falls into six categories, namely, “(1) internal templates utilized by the CIA in
tasking FOIA requests; (2) internal rules, policies and procedures governing FOIA processing
including classification, referrals, coordinations, and fees; (3) organizational information
revealing CIA’s internal system of decentralized information management; (4) internal
information concerning ways in which CIA is able to store and retrieve information; (5)
information about the CIA’s core functions, including intelligence activities, intelligence sources
and methods, and the collection, analysis, and dissemination of foreign intelligence; and (6)
recommendations from FOIA analysts and attorneys about how requests should be
administratively processed and routed.” NSC II, 960 F. Supp. 2d at 184–85 (citations omitted).
This interpretation has since been explicitly adopted by at least two other Judges on this Court.
Sack v. CIA, 53 F. Supp. 3d 154, 169–70 (D.D.C. 2014); Whitaker v. CIA, 31 F. Supp. 3d 23, 34
(D.D.C. 2014), aff’d on other grounds, Whitaker v. United States Dep’t of State, 2016 U.S. App.
LEXIS 1086 (D.C. Cir. Jan. 21, 2016).
Following this decision, at the request of the parties, see Joint Mot. Stay Briefing, ECF
No. 68, briefing in this action was stayed to permit the CIA to re-review each of its withholdings
under the CIA Act. Min. Order, dated Aug. 23, 2013. As a result of this re-review, the agency
released additional material to the plaintiffs previously withheld under the CIA Act and
Exemption 3. Defs.’ Mem. at 34. Thus, the CIA reports that it has now withheld under the CIA
Act only information falling into one of four categories: “1) the names and other personal
identifying information of CIA employees; 2) official titles; 3) the organization of personnel,
including the names of internal offices and buildings; and 4) information disclosing employees’
47
duties or functions, including functions related to the protection of intelligence sources and
methods; and internal CIA organizational information (including file paths for CIA computer
systems).” Id. at 34–35; Lutz Decl. ¶ 175.
Nonetheless, despite being provided an opportunity to comply with this Court’s prior
holding, the CIA acknowledges that certain information still withheld in this case “falls within
categories (3) and (4) of the Court’s August 2013 opinion for which the Court was skeptical that
any justification could be provided.” Defs.’ Mem. at 37. With respect to this information, the
CIA explains that it “respectfully disagrees with this Court’s” interpretation of the CIA Act. Id.Understandably frustrated with the CIA’s intransigence, the plaintiffs note that, had the
agency objected to this holding, it had numerous avenues to seek review or reconsideration of
that holding or to otherwise withhold the sought-after material. Pls.’ Opp’n at 57. Thus, while
the plaintiffs concede that the agency has properly withheld “names, email address, office
locations, URLs, and the like,” they continue to contest the withholding of information
qualifying as “organizational information revealing CIA’s internal system of decentralized
information management” or “internal information concerning ways in which CIA is able to
store and retrieve information.” Id. Specifically, the plaintiffs object to the withholding of an
“internal reference code” in Doc. No. 47 (Count Four), “classification block[s]” in Doc. Nos.
221, 222, 224, 225, and 245 (Count Four), and information regarding “internal databases and
how personnel use those databases” in Doc. Nos. 555 and 556 (Count Sixteen) and 557 and 558
(Count Seventeen). Id. at 58. Each of these objections is addressed in turn.
First, with respect to the internal reference code redacted from Doc. No. 47, the agency
explains that this code “is a series of letters and numbers for an internal tasking that, if
aggregated with other such codes would expose details of CIA’s organization and functions.”
48
Defs.’ Reply at 33 (emphasis added). As the agency correctly suggests, withholding of such
material under the CIA Act runs directly counter to this Court’s prior holding in NSC II. There,
the Court noted that the thrust of the D.C. Circuit’s limited guidance as to the scope of the CIA
Act is that § 6, “standing alone, only protects ‘information on the CIA’s personnel and internal
structure,’ such as the names of personnel, the titles and salaries of personnel, or how personnel
are organized within the CIA.” NSC II, 960 F. Supp. 2d at 175 (internal citation omitted). As
such, the Court explicitly rejected the CIA’s withholdings supported by essentially the same
language deployed by the agency to justify its withholdings here. See id. (denying summary
judgment where the CIA sought to withhold material in order to “protect[] from disclosure
information about the [CIA]’s organization and functions” (quoting Defs.’ Reply in Supp. Mot.
Summ J. on Counts 1, 2, 3, 5, 6, 7, 8, 9, 10, and 13 at 7, No. 11–445, ECF No. 35). As the Court
explained, “the plain text of the statute limits protection from disclosure only to the functions and
organization pertaining to or about personnel, not to all information that relates to such
functions and organization.” Id. (internal citation omitted). Consistent with this interpretation,
because the CIA refers only to the agency’s organization and functions in justifying its
withholdings, with no suggestion that the information withheld pertains to or is otherwise about
CIA personnel, the defendants’ request for summary judgment as to its withholdings in Doc. No.
47 is denied.
With regard to the redacted classification blocks, the CIA’s declarant explains that these
blocks “contain[] information required by Section 1.6(a) of E.O. 13526,” with redacted
information withheld to “protect employee identification numbers used to identify CIA personnel
and information on how CIA personnel treat classified information and protect intelligence
sources and methods, a core function of CIA personnel.” Lutz Decl. ¶ 184 n.20. According to
49
the agency’s declarant, in addition to identifying information of CIA personnel, these blocks
include “information regarding how CIA personnel treat classified information and protect
intelligence sources and method[s],” including the “use of classification derivatives and how
CIA personnel apply these derivatives to specific information.” Sec. Lutz Decl. ¶ 35; Defs.’
Reply at 33. The agency advances similar arguments in favor of its withholding of information
addressing internal agency databases and how those databases are used by CIA personnel. Sec.
Lutz Decl. ¶ 36 (explaining that the withheld material includes “references to internal databases,
how personnel use those databases, and how personnel operate internal computer systems”);
Defs.’ Reply at 33.
At first blush, these descriptions provide some indication that the withheld information in
these documents falls within the ambit of the CIA Act. At a minimum, in contrast to the
reference code withholdings assessed above, the agency at least refers to agency personnel in
seeking to justify its withholdings in these documents. Upon closer inspection, however, the
agency’s cursory references to “CIA personnel” are insufficient to convert the withheld material
into information pertaining to or about personnel that would be properly exempt from disclosure
under the CIA Act. Indeed, the agency’s declarant makes clear that the withheld material
“reveals ways in which CIA computer records systems are configured, how these systems are
accessed and organized, and how Agency personnel classify and restrict access to sensitive
national security information.” Lutz Decl. ¶ 184. Seeking, albeit begrudgingly, to draw a “direct
nexus to CIA personnel,” the agency’s declarant explains that “the CIA’s computer and
recordkeeping systems are an integral part of the regular duties of CIA employees, and the
protection of the sensitive information in these systems (and within the CIA more broadly) are
one of the core functions of CIA personnel.” Id. As before, however, while “[i]t is undoubtedly
50
true that managing, storing, and retrieving information is a function of some, if not all, CIA
personnel, . . . the CIA is attempting to augment the scope of [the CIA Act] by withholding
information that merely relates to or concerns that function.” NSC II, 960 F. Supp. 2d at 179.
“The language of the statute simply does not support such a broad reading.” Id.
The Court is mindful of potential national security concerns implicated by the wide
availability of the types of information the agency seeks to redact from these documents. See
Lutz Decl. ¶ 185. To the extent that disclosure of the information in these records poses such a
risk, there are likely “numerous other ways that the CIA could protect such information from
FOIA disclosure,” including through the invocation of “the National Security Act, if the
information would reveal intelligence sources or methods, or FOIA Exemption 1, if the
information is properly classified.” NSC II, 960 F. Supp. 2d at 179 n.46 (internal citation
omitted). For today, however, the agency’s exclusive reliance on the CIA Act to withhold
material that does not pertain to CIA personnel is misplaced. Accordingly, the defendants’
request for summary judgment as to the CIA’s withholdings pursuant to the CIA Act in Counts
Four, Sixteen, and Seventeen is denied.
b) National Security Act
The plaintiffs next challenge the CIA’s withholdings, pursuant to Exemption 3 and the
National Security Act, in eighty-two documents responsive to the FOIA requests at issue in
seven counts. Combined Vaughn Index at 1–17.
The National Security Act requires the Director of National Intelligence to “protect
intelligence sources and methods from unauthorized disclosure.” 50 U.S.C. § 3024(i). As
interpreted by the D.C. Circuit, this language exempts from disclosure under the FOIA material
that the agency “demonstrates . . . ‘can reasonably be expected to lead to unauthorized
51
disclosure’” of intelligence methods or sources. Wolf v. CIA, 473 F.3d 370, 377 (D.C. Cir. 2007)
(quoting Gardels v. CIA, 689 F.2d 1100, 1103 (D.C. Cir. 1982)); see also Larson v. Dep’t of
State, 565 F.3d 857, 863 (D.C. Cir. 2009) (allowing for withholding of information that “could
provide enough clues to allow some individuals to determine who provided the information to
the CIA”). In light of the national security interests implicated by such material, courts give
“even greater deference to CIA assertions of harm to intelligence sources and methods under the
National Security Act.” Wolf, 473 F.3d at 377 (citing Sims, 471 U.S. at 168–69).
For nearly all of the agency’s challenged National Security Act withholdings, the CIA
also invokes Exemption 1 as an alternative basis for refusing to disclose otherwise responsive
material. Pls.’ Opp’n at 54. According to the plaintiffs, because the agency simply “tacked on”
Exemption 3 as an alternative basis for its withholdings in these records, “a finding that
information is not properly withheld under Exemption [1] will also mean that it is not properly
withheld under the National Security Act.” Id. While the plaintiffs are correct to note the
substantial overlap between information properly exempted from disclosure under Exemption 1
and information that must be protected under the National Security Act, their suggestion that
material not properly withheld under Exemption 1 cannot be withheld under the National
Security Act misses an important distinction between E.O. 13526 and the National Security Act.
Indeed, in challenging the CIA’s Exemption 1 withholdings, the plaintiffs raise both
procedural and substantive objections to the agency’s determination that withheld material is
properly classified under E.O. 13526. See Pls.’ Opp’n at 43–46; Pls.’ Surreply at 11–14. Since
the procedural requirements set out in that Order do not apply to withholdings under the National
Security Act, however, any procedural concerns raised with respect to the CIA’s Exemption 1
withholdings have no bearing on the agency’s authority to withhold similar material under the
52
National Security Act and Exemption 3. For this reason, in reviewing the sufficiency of the
CIA’s justifications for its withholdings under the National Security Act, only the plaintiffs’
substantive objections to the CIA’s withholdings in these eighty-two documents will be
considered.
(1) Count Seven
In Count Seven, the plaintiffs’ contest the CIA’s decision to withhold two classified
declarations from former Directors of Central Intelligence (Doc. Nos. 471 and 472) that “contain
information about liaison services, CIA sources, intelligence activities and methods, and other
classified information.” Lutz Decl. ¶ 168. Each of these declarations was submitted by the
agency for in camera review in prior FOIA actions decided in the early 1980s to support the
agency’s invocation of the state secrets privilege to withhold certain information from disclosure.
Id. Specifically, the agency’s declarant explains that Doc. No. 471 “explained in detail how
classified state secrets could be exposed” through a prior FOIA action and “addressed the harm
to national security that would result” should the sought-after records in that case become public.
Id. Likewise, Doc. No. 472 provided “details about the sensitivities of the identities of liaison
services and individual sources who provided information to the CIA as part of [a particular
CIA] program, as well as certain clandestine intelligence activities and methods relating thereto.”
Id. Explaining that disclosure of either of these records would “reveal information concerning
intelligence methods,” the agency argues that these documents may be withheld in full under
Exemption 3. Id.In response, the plaintiffs emphasize that these documents were each created over
twenty-five years ago and contest the agency’s decision to continue to withhold these documents
53
in response to NSC’s present FOIA request. 13 Specifically, the plaintiffs suggest that the CIA
has provided minimal justification for withholding these records beyond the fact that the
information included in these declarations was classified at the time the declarations were
originally filed. Pls.’ Opp’n at 43, 45 (“CIA argues that Doc. Nos. 471–72 . . . remain properly
classified because they pertain to intelligence activities, sources, or methods, and as evidence for
this assertion, it attempts to incorporate by reference whatever reasons the authors gave in those
declarations.”). Arguing that the CIA must re-review these materials to ensure that they may still
be properly withheld, the plaintiffs suggest that the CIA is “in effect asking the Court to opine on
reasons for classification provided to a court three decades ago without actually reading them,
just trusting that they were good.” Id. at 45 (emphasis in original).
The plaintiffs are certainly correct that information properly classified in the past is not
necessarily properly classified today. See, e.g., E.O. 13526 § 1.5(d) (providing that “[n]o
information may remain classified indefinitely”), § 3.5(3)(c) (directing “[a]gencies conducting a
mandatory review for declassification [to] declassify information that no longer meets the
standards for classification under” E.O. 13526). Nonetheless, their suggestion that, because the
documents they seek may no longer be properly classified, those documents are automatically
subject to public disclosure, misses the mark. See id. (explaining that information must be
released upon being declassified “unless withholding is otherwise authorized and warranted
under applicable law”). In fact, even assuming that the declarations the plaintiffs seek are no
13
In contesting the agency’s withholding of this material pursuant to Exemption 1, the plaintiffs assert that,
due to their age, each of these documents is subject to automatic declassification under E.O. 13526. Pls.’ Opp’n at
46. As previously explained, however, because this information may be withheld under the National Security Act
regardless of whether its remains properly classified, the Court need not consider whether the automatic
declassification provision of E.O. 13526 applies to these documents.
54
longer classified, the agency has presented ample evidence to demonstrate that these documents
were properly withheld under the National Security Act.
Most significantly, the agency asserts, and the plaintiffs apparently do not contest, that
the declarations withheld in Count Seven each “contain information about liaison services, CIA
sources, intelligence activities and methods, and other classified information.” Lutz Decl. ¶ 168.
Indeed, the agency’s uncontested assertions regarding the contents of these declarations are
further bolstered by the context in which these declarations were submitted. For example, Doc.
No. 472 was submitted in connection with a suit involving a group of individuals and
organizations opposed to the Vietnam War who challenged various alleged surveillance
programs during the war. Halkin v. Helms, 690 F.2d 977 (D.C. Cir. 1982). Placing “heavy
reliance upon” the declaration at issue here, the district court in that case ruled that the agency’s
claim that records regarding these activities were protected by the state secrets privilege “had
‘overwhelming support’ on its merits,” id. at 986, which holding was ultimately affirmed by the
D.C. Circuit, id. at 1009. In this light, there is little reason to doubt that the sought-after
declarations in this case include information describing intelligence methods properly exempted
from disclosure pursuant to the National Security Act.
Accordingly, the defendants’ request for summary judgment as to the CIA’s withholdings
in Doc. Nos. 471 and 472 at issue in Count Seven is granted.
(2) Counts Eight, Nine, and Ten
In total, the plaintiffs challenge the withholding, in full or in part, of seventy-seven
documents responsive to the four FOIA requests at issue in Counts Eight, Nine, and Ten. See
55
Combined Vaughn Index at 2–17. Since the FOIA requests at issue in these counts sought
substantially similar materials, these counts will be discussed in tandem.
The FOIA requests at issue in Counts Eight, Nine, and Ten sought documents filed by
third parties in connection with prior cases involving the CIA in this Court and two other
jurisdictions. In each instance, the CIA OGC reviewed unredacted copies of these submissions
before they were filed in order to determine whether they included classified information not
subject to public disclosure. Lutz Decl. ¶ 57; Pl.’s Consent. Mot. Ext. Time at 1, n.1, Boening v.
CIA, No. 07-430 (filed Oct. 1, 2007 D.D.C.), ECF No. 6. The plaintiffs in this action seek CIA
records related to the OGC’s determination that some or all of the information in these
submissions was classified, thus requiring the submissions to be filed on the public docket in
redacted form.
To a degree, the requests at issue in Counts Eight, Nine, and Ten present an unusual
variation on the question of whether documents previously sealed by a court are subject to later
disclosure under FOIA. As a general matter, in responding to a FOIA request, federal agencies
are permitted to withhold otherwise responsive documents where an existing court order
specifically enjoins their release. In such circumstances, the agency “simply [has] no discretion
. . . to exercise” and, thus, “has made no effort to avoid disclosure.” GTE Sylvania, Inc. v.
Consumers Union of U.S., Inc., 445 U.S. 375, 386 (1980). As the D.C. Circuit has explained,
“respect for the judicial process requires the agency to honor” a court order or injunction barring
disclosure of sealed materials. Morgan v. U.S. Dep’t of Justice, 923 F.2d 195, 196 (D.C. Cir.
1991) (citing GTE Sylvania, Inc., 445 U.S. at 386–87). Thus, where a court circumscribes an
agency’s ability to produce documents such that the agency has “no discretion” to release the
documents, the agency’s failure to release documents will not be deemed improper. See, e.g.,
56
GTE Sylvania, 445 U.S. at 386 (injunction); Morgan, 923 F.2d at 197 (sealing order); Wagar v.
U.S. Dep't of Justice, 846 F.2d 1040, 1046–47 (6th Cir. 1988) (consent order); see also Senate of
Commw. of P.R. v. U.S. Dep’t of Justice, No. 84-1829, 1993 WL 364696, at *6 (D.D.C. Aug. 24,
1993) (“The Supreme Court has held that records covered by an injunction, protective order, or
held under court seal are not subject to disclosure under FOIA.” (citations omitted)).
Where sought-after records are withheld pursuant to a court’s direction, “the proper test
for determining whether an agency improperly withholds records [subject to a court order] is
whether the [order], like an injunction, prohibits the agency from disclosing the records.”
Morgan, 923 F.2d at 197 (emphasis in original). The agency bears the burden of demonstrating
that responsive records are not subject to disclosure under the terms of a court order, id. at 198,
and may be required to seek a clarifying order to demonstrate that a requested disclosure is
prohibited, see Judicial Watch, Inc. v. U.S. Dep’t of Justice, 813 F.3d 380, 384 (D.C. Cir. 2016)
(vacating summary judgment and remanding to permit the agency to seek clarification regarding
the intended effect and scope of relevant court order); Morgan, 923 F.2d at 198; see also Awan v.
U.S. Dep’t of Justice, 10 F. Supp. 3d 96, 107 (D.D.C. 2014) (finding “that the defendants have
not established the Southern District’s sealing order as a proper basis for withholding the over
decade old material witness warrant affidavit under the FOIA” where defendants lacked
clarifying order), vacated 46 F. Supp. 3d 90, 92 (D.D.C. 2014) (concluding “that the
government’s withholding of the material witness warrant affidavit in compliance with the
sealing order does not constitute an improper withholding under the FOIA” after the government
obtained clarifying order).
Here, the materials the plaintiffs seek were initially withheld not under an explicit court
order, but instead as a result of the CIA’s determination that the relevant filings contained
57
classified information that could not be disclosed publicly. In each instance, the private parties
in these prior actions were ordered to submit their proposed filings to the CIA for review and
potential redaction before entering these filings on the public docket. While the D.C. Circuit has
not had occasion to consider whether materials redacted in this manner are presumptively
excluded from FOIA coverage, there is some reason to believe that such disclosure is generally
barred. For instance, prior court orders requiring parties to submit filings to the CIA for prefiling
review would appear implicitly to direct any unredacted submissions to remain under seal.
As yet, however, the CIA has pointed to no order explicitly prohibiting disclosure of any
unredacted materials. With this in mind, the discussion that follows begins by considering
whether the agency has met its burden of demonstrating that withheld material is exempt from
disclosure under the FOIA pursuant to Exemption 3 and the National Security Act. Where the
agency has failed to meet this burden, the Court will provide an opportunity for the agency to
identify a court order or other associated rule prohibiting the release of any withheld information
at issue in this case.
In Count Eight, NSC requested copies of all records responsive to an earlier FOIA
request, submitted in 2008, which itself sought “exhibits submitted in support of the Declaration
of Franz Boening in Boening v. CIA, Civil Action No. 07-430 (D.D.C.).” Lutz Decl. ¶ 47; see
FAC ¶ 32. The Boening case arose out of a former CIA employee’s request for permission from
the CIA to publish a memorandum he wrote while employed by the agency in connection with a
whistleblower complaint he submitted to the CIA Office of Inspector General (“OIG”) regarding
alleged CIA activities abroad. Defs.’ Reply at 22; see Boening v. CIA, 579 F. Supp. 2d 166, 168
(D.D.C. 2008). After the CIA OIG declined to pursue his complaint, the employee sought
permission from the CIA Publications Review Board (“PRB”) to publish the memorandum he
58
submitted to the OIG outside the agency. Boening, 579 F. Supp. 2d at 168. The PRB advised
the employee that, in order to publish his memorandum publicly, he would be required to remove
any official agency formatting and include specific, open source citations for any of his
allegations regarding the CIA’s activities. Id. In essence, the agency required the employee to
remove any indication that the CIA officially acknowledged any information contained in the
memorandum. Id. at 169.
The employee challenged this decision and, in connection with the litigation arising out
of that challenge, sought to submit both a declaration describing his preparation of the
memorandum and dozens of public news articles the plaintiff claims he relied upon in
formulating his allegations. Id. at 171; Defs.’ Reply at 22; Pls.’ Opp’n at 44. Given the
potentially sensitive information included in the plaintiff’s filings, the court directed him to
provide his proposed submissions to the CIA for prepublication review before filing them on the
public docket. See Min. Orders, dated Oct. 4, 2007 and Jan. 31, 2008, Boening v. CIA, No. 07-
430. Upon reviewing the plaintiff’s proposed submissions, the CIA concluded that, “in the
context of the information already on the record . . . , [the agency] could not approve placing [the
submitted articles] on the public record without disclosing classified information.” Sec. Lutz.
Decl. ¶ 25. As a result, the plaintiff was required to file each of the articles he contended he
relied upon in drafting his memorandum under seal. See id. Based on these submissions, the
Boening Court upheld the CIA’s decision to block the publication of the original memorandum.
Boening, 579 F. Supp. 2d at 171. In so doing, the court noted that the employee failed to provide
adequate citations to the public materials he claimed supported his allegations, thus leaving the
impression that the information contained in the memorandum had been officially acknowledged
by the agency. Id. Following this ruling, the employee agreed to revise the memorandum to
59
include the required citations, and the agency permitted him to publish the revised version with
“minor redactions.” Pls.’ Opp’n at 44; see id., Ex. W, ECF No. 72-23.
With the revised version of this memorandum now public, the FOIA request at issue in
Count Eight seeks copies of each of the articles submitted under seal by the plaintiff in
connection with this prior litigation. FAC ¶ 32. The CIA’s search for these exhibits yielded
sixty responsive documents (Doc. Nos. 473–531), all of which were withheld in full pursuant to
Exemptions 1 and 3. Id. ¶ 50. Contending that the agency has failed to demonstrate that these
exhibits are properly classified, the plaintiffs note that the CIA ultimately cleared for release the
revised memorandum purportedly relying on the same public articles. Pls.’ Opp’n at 44–45. In
particular, since the now-public version of this memorandum includes citations to various public
articles, the plaintiffs argue that the agency’s contention that the articles submitted to the Court
in Boening remain classified, and subject to withholding under Exemption 1, “comes extremely
close” to bad faith. Id. at 45 (emphasis in original).
The defendants respond that, while the CIA ultimately permitted certain articles to be
cited in a modified version of the plaintiff’s memorandum, this revised memorandum “differed
from the original in meaningful ways,” such that any connection between the articles submitted
as exhibits in the Boening case and the original memorandum remains classified. Defs.’ Reply at
22–23. Specifically, the agency’s declarant explains that edits required by the agency removed
any suggestion that the Boening memorandum was an official CIA document or otherwise
constituted an official acknowledgment by the CIA that the media reports cited therein were
accurate. Sec. Lutz Decl. ¶¶ 25–26. Thus, as modified, the memorandum “no longer created the
appearance that as a CIA employee he was confirming whether the speculation in press reporting
60
was accurate, and CIA agreed that the memorandum, in its revised format, did not contain
classified information.” Id. ¶ 26.
By contrast, the defendants argue, the association of the submitted articles with the
original version of the memorandum, i.e., through their ex parte submission in the first FOIA
action, “could officially confirm the existence or not” of properly classified information. Defs.’
Reply at 22. In the agency’s view, “by reading the unclassified news articles that discuss
specific events and a specific country and knowing that the articles relate to Mr. Boening’s
allegations, one could infer the classified information that the CIA redacted from Boening’s
declaration and the related filings.” Lutz Decl. ¶ 169. Thus, by releasing the documents in this
context, the agency would “necessarily reveal that the documents are the exhibits and, in
conjunction with the declaration and other filings, would reveal the substance of the classified
information withheld from the public record.” Id.
The plaintiffs’ skepticism on this point is understandable. Given the disclosure already
permitted by the CIA in connection with the Boening memorandum, it is initially difficult to
understand how the exhibits the plaintiffs seek would reveal information protected by the
National Security Act. Indeed, while the CIA suggests that the final memorandum differed
meaningfully from the original version submitted to the CIA OGC, a comparison between the
publicly available memorandum, Pls.’ Opp’n, Ex. W, and the redacted version of the original
memorandum filed in the Boening case, see Pl.’s Opp’n Def.’s Mot. Dismiss, Ex. 2, Boening v.
CIA, No. 07-430 (D.D.C. Nov. 19, 2007), ECF No. 9-3, suggests that the CIA sought only minor
changes before allowing the memorandum to be published. Given the substantial similarities
between these documents, the CIA apparently concluded that the inclusion of appropriate
citations in the publicly available memorandum sufficiently guarded against any implication that
61
the agency has officially acknowledged Boening’s allegations. Yet, in opposing any additional
disclosure, the agency insists that the revelation that articles cited in the public memorandum are
the same articles submitted in connection with the original Boening memorandum would
somehow give the imprimatur of official acknowledgment to Boening’s accusations. Lutz Decl.
¶ 169.
At the same time, the Court is sensitive to the unusual circumstances presented by the
plaintiffs’ present request. In effect, the plaintiffs’ FOIA request constitutes a collateral attack
on the CIA’s initial withholding determinations in the Boening case, with the plaintiffs seeking
access to materials previously deemed, over no apparent objection, to be properly classified.
Since the CIA ultimately allowed the Boening memorandum to be published with minimal
alterations, the plaintiffs suggest that the CIA waived any claim that these materials are exempt
from disclosure under the FOIA. Pls.’ Surreply at 13–14. Under the plaintiffs’ proposed rule,
then, the agency would be penalized for permitting individuals to publish even third-party
accounts of the agency’s activities, for fear that, in so doing, the agency has tacitly
acknowledged the veracity of those accounts and cannot later withhold information regarding
those activities. In that light, the CIA’s effort to preserve the fidelity of its original
prepublication determination, while also maintaining its ability to allow authors to publish their
works with minimal alteration, is not irrational.
Ultimately, however, the Court is not persuaded that, on the record currently presented,
the CIA has met its burden of demonstrating that the records it seeks to withhold would reveal
intelligence sources or methods. The materials the plaintiffs seek are public, unconfirmed news
reports of agency activities abroad. While the agency has made clear that it can neither confirm
nor deny the veracity of those reports, the agency has allowed similar (or the same) reports to be
62
associated with the allegations set out in the public Boening memorandum. The plaintiffs do not
seek the release of the original Boening memorandum, which the agency asserted would
improperly suggest that the agency adopted the allegations set out therein. As such, even
assuming the release of this original memorandum would impermissibly reveal protected
intelligence methods and sources, the agency offers little support for the proposition that the
release of unconfirmed, publicly available media reports would, without more, reveal such
information.
Accordingly, the defendants’ request for summary judgment as to the agency’s
withholdings in Count Eight for Doc. Nos. 473–531 is provisionally denied. 14 As explained
above, given the uncertain status of any prior court orders governing the release of these
materials, the defendants will be permitted to obtain a clarifying order indicating whether these
materials must remain under seal pursuant to Exemption 1 and an effective court order. See
Awan v. U.S. Dep’t of Justice, 46 F. Supp. 3d 90, 92 (D.D.C. 2014).
By comparison to the challenged withholdings in Count Eight, the agency’s Exemption 3
withholdings in Counts Nine and Ten present a clearer case for non-disclosure under the
National Security Act. Counts Nine and Ten address FOIA requests seeking access to filings
prepared by one of the individual plaintiffs in an employment discrimination action against the
CIA, Sterling v. Tenet, as well as any CIA records arising from the agency’s decision to require
that these submissions to be redacted before being filed publicly. See FAC ¶ 99 (in Count Nine,
seeking “unredacted copies of briefs [one of the individual plaintiffs] had written in two Sterling
v. Tenet court cases, No. 01-8073 (S.D.N.Y.) and No. 03-329 (E.D. Va.)”), ¶ 104 (in Count Ten,
14
For the same reason, the defendants fail to demonstrate that the withheld documents are properly classified
pursuant to E.O. 13526, and the defendants’ request for summary judgment as to the CIA’s decision to withhold
these materials pursuant to Exemption 1 is also denied.
63
seeking “records pertaining to the classification of information in the briefs [the individual
plaintiff] wrote in the Sterling cases”); Lutz Decl. ¶ 170 (explaining that, because these materials
“contained classified information, CIA redacted portions of them before they could be publicly
filed”). Following a brief summary of this earlier action, the plaintiffs’ present effort to reveal
the details of the CIA’s internal review of previously sealed materials is considered.
Originally filed as a pro se action in the Southern District of New York, Tenet was an
employment discrimination action brought by a former CIA Operations Officer who alleged that
he was discriminated against during his tenure with the agency on account of his race. Sterling
v. Tenet, 416 F.3d 338, 341–42 (4th Cir. 2005). Before that court, the agency moved to dismiss
the plaintiff’s claim or, alternatively, to transfer the case to the Eastern District of Virginia,
where the agency is located. Id. Though declining to dismiss the case entirely, the New York
court granted the agency’s request to transfer the case, where the agency then renewed its request
to dismiss the case on the ground that allowing the plaintiff to pursue his case would threaten the
exposure of classified information. Id. at 342. The district court agreed, noting that, “to pursue
his claim, [the plaintiff] would have to disclose the nature and location of his employment and
the employment of those similarly situated.” Id. Since this information, including both his
duties and those of his colleagues, was classified, the district court reasoned that any effort to
proffer proof of discrimination would have been barred by the state secrets doctrine. Id.On appeal, the Fourth Circuit agreed that the plaintiff’s claim was barred under the state
secrets doctrine. Id. at 347. Citing both the district court’s reliance on the agency’s classified
declarations, as well as the “highly classified nature of the allegations in [the plaintiff’s] own
complaint,” the circuit thus affirmed the dismissal of the plaintiff’s complaint. Id. As the court
explained, “where ‘the very question on which a case turns is itself a state secret, or the
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circumstances make clear that sensitive military secrets will be so central to the subject matter of
the litigation that any attempt to proceed will threaten disclosure of the privileged matters,’
dismissal is the proper remedy.” Id. at 348 (quoting DTM Research, LLC v. AT & T Corp., 245
F.3d 327, 334 (4th Cir. 2001)). The plaintiffs here do not contest the Fourth Circuit’s
characterization of the materials filed by the plaintiff in that case. Instead, the plaintiffs explain
that the “express purpose” of their present FOIA requests is to better understand the CIA’s
decision to classify these materials before they were initially filed. Pls.’ Opp’n at 44 n.37.
After initially seeking all agency records related to the plaintiff’s filings in both Sterling
cases, the plaintiffs here agreed to narrow the scope of this request to include only those records
addressing an Opposition to the CIA’s motion to dismiss or transfer his case from the Southern
District of New York to the Eastern District of Virginia. Lutz Decl. ¶ 55; Defs.’ Mem., Ex. AA.
The Judge presiding over the Sterling case in the Southern District of New York ordered the
plaintiff to submit this filing to the CIA to permit the agency to withhold any sensitive
information from the public version of this filing. See Order, Sterling v. Tenet, No. 01-cv-8073
(S.D.N.Y. May 14, 2002) (directing the plaintiff to “arrange for his responsive pleading to the
[agency’s motion to dismiss] to be delivered to the [CIA]” two months before it would be filed
on the public docket). In response to the FOIA request at issue in Count Nine, the agency
located this document, along with thirteen accompanying attachments. Lutz Decl. ¶ 56. Five of
these documents were released in full, with eight documents produced in redacted form and a
ninth document withheld in full, pursuant to Exemptions 1 and 3. Id. In Count Ten, the CIA
located seven marked-up copies of the filings at issue in Count Nine that include proposed
redactions and margin comments, six of which were produced in redacted form with the seventh
withheld in full. Id. ¶ 62.
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As in Count Eight, the plaintiffs contest the agency’s purported reliance on its prior
classification decisions in connection with this earlier action to justify its withholdings in this
case. See Pls.’ Opp’n at 43–44. Thus, in the plaintiffs’ view, the CIA “is in effect asking the
Court to take its word that it classified this information properly [originally] and that it is still
properly classified for whatever unknown reasons it made that determination, without giving any
explanation for that determination.” Pls.’ Opp’n at 42–43 (footnote omitted). In fact, however,
the agency’s declarant explains that the agency withheld information in these documents to
“protect[] sensitive information about intelligence methods and activities that cannot be
described on the public record.” Lutz Decl. ¶ 170. Though the agency provides relatively little
explication for its assertion that its withholdings in the sought-after materials are intended to
protect intelligence sources and methods, the agency’s representations in this case are again
bolstered by the circumstances giving rise to the FOIA requests at issue in Counts Nine and Ten.
Indeed, as explained above, the materials the plaintiffs seek were filed in connection with
an action directly implicating the activities and responsibilities of a clandestine CIA employee.
Sterling, 416 F.3d at 341 (explaining that a full airing of the plaintiff’s claim against the agency
“would require disclosure of highly classified information concerning the identity, location, and
assignments of CIA operatives”). As a result, significant portions of both the sought-after
submissions, see Pls.’ Opp’n, Ex. F, ECF No. 78–6, and the district court’s opinion granting the
CIA’s motion to transfer the case, see Defs.’ Mem., Ex. AA, were redacted prior to public filing.
In this context, there is little reason to doubt the agency’s assertion that information withheld in
these materials would reveal intelligence methods and activities. Further, to the extent that the
plaintiffs in Count Ten seek internal classification markings and related dissemination control
markings, Judges on this Court have held that such markings “could plausibly contain
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information that may reveal intelligence collection sources or methods protected by the National
Security Act, particularly in light of ‘the weight of authority counseling deference to CIA in
matters involving national security.’” Looks Filmproduktionen GmbH v. CIA, No. CV 14-1163
(BAH), 2016 WL 4186652, at *14 (D.D.C. Aug. 5, 2016) (citing authorities).
Thus, even assuming the disclosure the plaintiffs seek is not categorically barred by prior
court order, the agency has met its burden of justifying its withholdings in Counts Nine and Ten,
pursuant to Exemption 3 and the National Security Act. 15
(3) Count Twenty-One
Count Twenty-One arises out of a FOIA request submitted to the CIA by one of the
individual plaintiffs seeking “thirty-two specified documents currently published in the CIA
Records Search Tool (“CREST”),” which the plaintiffs describe as an “electronic database
housed at the National Archives and Records Administration but maintained by CIA.” FAC ¶
177. Along with her request, the requester submitted redacted copies of each of the sought-after
documents, explaining “that ‘records which are currently published in CREST in redacted form
should be reviewed for full release under FOIA.’” Lutz Decl. ¶ 113 (quoting Lutz Decl., Ex.
FFF, ECF No. 74-5). In response to this request, the CIA produced redacted versions of each of
the sought-after documents. FAC ¶ 178. Arguing that the agency erred in failing to construe her
request as seeking the re-review, and full release, of the relevant records, the plaintiff
15
Again, because the Court concludes that the agency has justified its withholdings under Exemption 3 and
the National Security Act, the Court need not opine on the plaintiffs’ contention that the sought-after materials are
not properly classified and, as a result, not protected from disclosure under Exemption 1, see Pls.’ Opp’n at 44 n.37;
Pls.’ Surreply at 11 n.7.
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administratively appealed the agency’s response before bringing the present action. Lutz Decl.
¶¶ 114–15.
In its initial decision in this matter, the Court agreed with the plaintiffs and denied the
defendants’ motion to dismiss Count Twenty-One after concluding that the CIA unreasonably
interpreted the plaintiff’s FOIA request. NSC I, 931 F. Supp. 2d at 102. Consistent with this
ruling, the CIA began reprocessing the thirty-two documents identified in the plaintiff’s request
in order to determine whether additional information could be produced to the plaintiff. Lutz
Decl. ¶ 116. Four such documents were forwarded to other agencies for processing, three of
which have since been released in full and one of which has been released with redactions
pursuant to Exemption 3. Id. ¶ 116 & n.14. Finally, after the plaintiff subsequently narrowed
the scope of the requested re-review to include only those pages previously withheld in full, id. ¶
117, all but one of these pages have been produced to the plaintiff in redacted form, id. ¶¶ 118–
19. “In sum, of the [thirty-two] documents at issue, [five] were released in full and [twenty-
seven] were withheld in part.” Id. ¶ 119.
Opposing summary judgment, the plaintiffs challenge a single page withheld by the
agency in Doc. No. 605. 16 According to the CIA, this page appears in an “[i]nternal memo[]
from [a CIA] component[] to [the] Office of Legislative Liaison commenting on proposed
testimony regarding proposed legislation, H.R. 4681, the Federal Polygraph Limitation and Anti-
Censorship Act of 1984.” Combined Vaughn Index at 17. This one-page memo, dated February
29, 1984, includes suggestions from the then-Chief of the CIA’s Policy Branch regarding the
16
In a supplemental filing, the plaintiffs suggest that they continue to dispute the agency’s rejection of the
FOIA requester’s eligibility for a public interest fee waiver in connection with the FOIA request at issue in Count
Twenty-One. See Errata, ECF No. 96. Nonetheless, in response to the defendants’ request for summary judgment
“on all remaining claims,” Defs.’ Mem. at 1, the plaintiffs make no reference to any remaining dispute on this claim,
see generally Pls.’ Opp’n; Pls.’ Surreply. As such, the plaintiffs have waived any further objection on this claim,
and summary judgment is therefore granted, as conceded, to the defendants on this issue.
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proposed legislation, which are summarized in four bullets. Pls.’ Opp’n, Ex. X, ECF No. 77-24.
The agency’s challenged redaction appears in one of these bullets, which reads, as redacted: “In
1948, the newly formed Central Intelligence Agency began polygraph testing of employee
volunteers. [REDACTED] and by 1953, CIA had in place a program to screen its applicants for
employment.” Id. According to the defendants, information redacted from this bullet “would
reveal information concerning intelligence activities, sources, or methods” and is therefore
subject to withholding under the National Security Act and Exemption 3. Combined Vaughn
Index at 17.
Arguing that the agency has failed to justify its decision to withhold this information, the
plaintiffs contend that the agency has “given no reason . . . for classifying the redacted
information other than that it would reveal information concerning intelligence activities,
sources, or methods.” Pls.’ Opp’n at 46 (emphasis in original) (internal quotation marks
omitted). Again, however, the relative brevity of the agency’s explanation for its withholding is
supplemented by the substantial information provided by the CIA regarding the purpose and
genesis of Doc No. 605. The legislation at issue in this document would have “prevent[ed] the
government from imposing prepublication review or polygraph examinations on government
employees at all, except in the CIA and NSA contexts.” Michael L. Charlson, Comment, The
Constitutionality of Expanding Prepublication Review of Government Employees’ Speech, 72
Cal. L. Rev. 962, 974 (1984) (footnotes omitted). In the context of the surrounding language, the
withheld material apparently describes the CIA’s use of polygraphs soon after the agency’s
creation. Moreover, there appear to be meaningful differences between the language proposed in
Doc. No. 605 and the final language included in the relevant testimony. See Federal Polygraph
Limitation and Anti-Censorship Act of 1984, Hearing on H.R. 4681 Before the Subcomm. on
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Civil Serv. of the H. Comm. on Post Office and Civil Serv., 98th Cong. 62 (1984) (statement of
Gen. Richard G. Stilwell, Deputy Under Sec’y of Def. for Policy) (“In 1947, the newly formed
Central Intelligence Agency began using the polygraph in support of operations—for
investigation of specific allegations—and for screening of potential employees. By 1950, CIA
was screening all applicants for employment with the agency.”). As such, it is plausible that the
language initially proposed by the agency, and partially redacted here, included information that
was not suitable for release.
In sum, the CIA has met its burden of demonstrating that the language withheld from this
internal agency memorandum would reveal intelligence methods and is, therefore, exempted
from disclosure pursuant to the National Security Act and Exemption 3. Consequently, the
defendants’ request for summary judgment as to its withholdings for Doc. No. 605 at issue in
Count Twenty-One is granted.
(4) Remaining Exemption 3 Challenges
Finally, in Counts Four and Twenty, the plaintiffs challenge the CIA’s withholding of
information related to the use of Glomar responses in connection with earlier FOIA requests.
First, Count Four involves a request submitted by NSC to the CIA for “all response letters sent to
MDR requesters for requests numbered EOM-2012-00300 and higher.” FAC ¶ 60. Doc. No. 23
is one such letter, with the underlying MDR request coinciding with a parallel FOIA request in
response to which the CIA issued a Glomar response “to protect intelligence sources and
methods.” See Pls.’ Opp’n, Ex. Z; Sec. Lutz Decl. ¶ 33. According to the CIA, material
appearing on an attached “internal routing and information page” was redacted “in order to not
disclose the information protected by the Glomar response itself.” Sec. Lutz Decl. ¶ 33.
Similarly, NSC’s request in Count Twenty sought “all template language used by CIA FOIA
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analysts to compose response letters to FOIA requesters.” FAC ¶ 170. According to the CIA,
Doc. No. 566 includes “[s]ample language . . . to use in drafting letters to [respond to] FOIA
requests,” with the redacted “information discussing [the] use of [a] Glomar response in specific
situations.” Combined Vaughn Index at 17; Pls.’ Opp’n, Ex. AA.
Not content with the agency’s explanations for its withholdings in these records, the
plaintiffs’ assert, without elaboration or support, that “[n]one of [the agency’s] statements could
reasonably be called ‘non-conclusory.’” Pls.’ Opp’n at 54. The Court disagrees. As explained
above, all that an agency must do to meet its burden of invoking a FOIA exception is “describe
the justifications for nondisclosure with reasonably specific detail and demonstrate that the
information withheld logically falls within the claimed exemption.” Murphy, 789 F.3d at 209
(internal quotation marks omitted) (quoting Larson, 565 F.3d at 862). Here, far from offering a
conclusory explanation for its decision to redact a limited amount of information from these two
documents, the agency explained that each document directly related to a prior instance in which
the agency issued a Glomar response in connection with a FOIA request. For obvious reasons,
releasing information in response to NSC’s present request that had previously been deemed
exempt from disclosure under the FOIA would defeat the purpose of issuing such a response in
the first instance. Perhaps acknowledging the futility of their opposition to these withholdings,
the plaintiffs declined to renew or otherwise expand upon the threadbare reasoning advanced in
their initial Opposition in their later Surreply. See generally Pls.’ Surreply. In any event, the
Court is satisfied that the CIA’s withholdings in these documents are permissible under
Exemption 3 and the National Security Act and, as such, the defendants’ request for summary
judgment as to these withholdings in Doc. No. 23, responsive to a request at issue in Count Four,
and Doc. No. 566, responsive to a request at issue in Count Twenty, is granted.
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* * *
Accordingly, summary judgment is granted in part and denied in part to the defendants
with respect to their withholdings pursuant to FOIA Exemption 3. Summary judgment is granted
to the defendants with respect to their withholdings pursuant to the National Security Act in
Counts Four, Seven, Nine, Ten, Twenty, and Twenty-One, but summary judgment is denied to
the defendants with respect to their withholdings pursuant to the CIA Act for different Doc. Nos.
47, 221, 222, 224, 225, and 245 at issue in Count Four; Doc. Nos. 473–531 at issue in Count
Eight; Doc. Nos. 555 and 556 at issue in Count Sixteen; and Doc. Nos. 557 and 558 at issue in
Count Seventeen.
3. Exemption 5 – Deliberative Process Privilege
In addition to challenging the CIA’s withholdings under FOIA Exemptions 1 and 3, the
plaintiffs challenge the CIA’s partial withholding, pursuant to the deliberative process privilege
and Exemption 5, of one document responsive to the FOIA request at issue in in Count Twenty.
Following a brief summary of the contours of this common law privilege, the parties’ dispute
regarding this document is considered.
a) Legal Standard
Intended to protect “open and frank discussion” among government officials to enhance
the quality of agency decisions, Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532
U.S. 1, 9 (2001), the deliberative process privilege “protects ‘documents reflecting advisory
opinions, recommendations and deliberations comprising part of a process by which
governmental decisions and policies are formulated,’” Loving v. Dep’t of Def., 550 F.3d 32, 38
(D.C. Cir. 2008) (quoting Klamath Water, 532 U.S. at 8). “To qualify for the deliberative
process privilege, an intra-agency memorandum must be both pre-decisional and deliberative.”
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Abtew v. U.S. Dep’t of Homeland Sec., 808 F.3d 895, 898 (D.C. Cir. 2015) (citing Coastal States
Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980)); Whitaker v. United States
Dep’t of State, 2016 U.S. App. LEXIS 1086, at *3–4 (D.C. Cir. Jan. 21, 2016) (per curiam)
(internal quotation marks and citation omitted) (“To fall under the privilege’s penumbra,
documents must be both pre-decisional and deliberative.”).
In general, a “document is predecisional if it was ‘prepared in order to assist an agency
decisionmaker in arriving at his decision,’ rather than to support a decision already made.”
Petroleum Info. Corp. v. U.S. Dep’t of Interior, 976 F.2d 1429, 1434 (D.C. Cir. 1992) (quoting
Renegotiation Bd. v. Grumman Aircraft, 421 U.S. 168, 184 (1975)); see also Leopold v. CIA, 89
F. Supp. 3d 12, 19 (D.D.C. 2015) (quoting Petroleum Info. Corp., 976 F.2d at 1434). While the
D.C. Circuit has observed that the “term ‘deliberative’ does not add a great deal of substance to
the term ‘pre-decisional,’ Nat’l Sec. Archive v. CIA, 752 F.3d 460, 463 (D.C. Cir. 2014) (citing
Access Reports v. Dep’t of Justice, 926 F.2d 1192, 1195 (D.C. Cir. 1991), “‘deliberative’ in this
context means, in essence, that the communication is intended to facilitate or assist development
of the agency’s final position on the relevant issue,” id. (citing Russell v. Dep’t of the Air Force,
682 F.2d 1045, 1048 (D.C. Cir. 1982)).
“[U]nlike other exemptions where the agency declaration and Vaughn index may be read
in conjunction to provide an adequate justification for application of an exemption to a class or
category of records, to sustain its burden of showing that records were properly withheld under
Exemption 5, an agency must provide in its declaration and Vaughn index precisely tailored
explanations for each withheld record at issue.” NSC II, 960 F. Supp. 2d at 188. Further, the
deliberative process privilege “does not protect documents in their entirety; if the government
can segregate and disclose non-privileged factual information within a document, it must.”
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Loving, 550 F.3d at 38 (citing Army Times Publ’g Co. v. Dep’t of Air Force, 998 F.2d 1067,
1071 (D.C. Cir. 1993)).
b) Analysis
The parties dispute the CIA’s withholdings pursuant to the deliberative process privilege
in one document responsive to the FOIA request at issue in Count Twenty. As noted above, this
request sought “all template language used by CIA FOIA analysts to compose response letters to
FOIA requesters.” FAC ¶ 170. Among the documents produced to NSC in connection with this
request was Doc. No. 565, which the defendants describe as “[s]ample language for IMS
personnel to use in drafting letters responding to FOIA requests.” Combined Vaughn Index at
17. Consisting of seven lines of text, the redacted version of that document reads as follows:
[REDACTED]
Requester seeks documents in electronic format; documents are not on
CDROM at time of request.
You have requested that records responsive to this FOIA request only be provided
to you electronically. I have determined that the releasable information
responsive to your FOIA request is not readily reproducible in the requested form
or format. Therefore, we are providing paper copies of the releasable information
responsive to this FOIA request.
Pls.’ Opp’n, Ex. EE, ECF No. 77-31.
According to the defendants, the challenged redaction removes “pre-decisional analysis,
recommendations and deliberations concerning how to respond to a FOIA request.” Combined
Vaughn Index at 17.
The plaintiffs note that the CIA’s description of the redacted language closely resembles
that used by the agency in other contexts to describe “notes made by analysts when processing
FOIA requests.” Pls.’ Opp’n at 60. In the plaintiffs’ view, however, the “reference document”
at issue here “direct[s] analysts to use” the form language included therein and, therefore, cannot
74
be said to have been either pre-decisional or deliberative. Id. at 60–61. Rather, the plaintiffs
contend, “the withheld portion [of Doc. No. 565] contains instructions for when to use the
language and who to consult.” Pls.’ Surreply at 15 (emphasis in original). The defendants
counter that the redacted language “describes the agency’s internal deliberative process,
including whom the agency employees consult in determining whether to use the template
language in a final letter.” Defs.’ Reply at 37; see Sec. Lutz Decl. ¶ 38 (“The withheld
information reflects the Agency’s internal deliberative process regarding when to use this
language in response to a FOIA request, including who IMS personnel drafting response letters
should consult in determining whether to use this information in a final letter.”). As support for
their withholding of this information, the defendants rely upon Tax Reform Research Group v.
IRS, 419 F. Supp. 415, 423–24 (D.D.C. 1976), which approved the withholding of the signatures
of IRS personnel from undisputedly deliberative documents. Defs.’ Reply at 37. In this way,
through their representations in sworn affidavits and pleadings to this Court, the defendants
suggest that the redacted information consists of a combination of deliberative discussion and the
identifying information or names of CIA employees.
Following in camera review of the document at issue, the Court finds that the defendants’
suggestions regarding the nature of the redacted information are misleading and their
withholdings in Doc. No. 565 unjustified. As previously noted, central to the protection of an
agency’s internal deliberative process is the recognition that agency “officials will not
communicate candidly among themselves if each remark is a potential item of discovery and
front page news.” Klamath Water Users Protective Ass’n, 532 U.S. at 8–9. By ensuring that
individuals working in government are free to voice contrary advice, the privilege helps to
improve agency internal communication and government decision-making. Here, the redacted
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line reads, “MUST BE APPROVED BY C/FOIA or C/PIPD before using it.” Appearing at the
very beginning of the document in question, this line is most clearly understood as an instruction
to obtain approval, directed to personnel processing those FOIA requests for which the template
language contained in the document may be applicable. Thus, by redacting this information, the
agency seeks to withhold general information regarding the manner in which FOIA requests are
processed by the CIA. This it cannot do. Directions to deliberate do not themselves constitute
deliberation. See Taxation With Representation Fund v. IRS, 646 F.2d 666, 681–82 (D.C. Cir.
1981) (“[D]ocuments subject to disclosure include materials that reflect the ‘working law’ of the
agency, in the form of final opinions, instructions or advice to staff, interpretative reports
(explaining decisions or regulations), and the like.” (emphasis added)). Such directions reflect
agency protocol, not the “advisory opinions, recommendations, and deliberations” protected by
Exemption 5. NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150 (1975); see also id. at 153(“The affirmative portion of the [FOIA], expressly requiring indexing of . . . ‘instructions to staff
that affect a member of the public,’ 5 U.S.C. § 552(a)(2), represents a strong congressional
aversion to ‘secret (agency) law’ . . . .”).
Nor does the inclusion of the titles of personnel who must be consulted regarding a
particular topic render this information subject to the deliberative process privilege. Contrary to
the defendants’ suggestion, Tax Research Group—the sole authority cited on this point—offers
no support for their position. In that case, a confluence of deliberative discussion and identifying
information, i.e., the names of the personnel involved, animated the decision to approve the
agency’s withholding of that identifying information from the FOIA requester. See 419 F. Supp.
at 423–24. As explained above, the redacted information is not deliberative, nor does it contain
76
the type of sensitive identifying information withheld in Tax Research Group. Consequently, the
defendants have proffered no justification for their withholdings in Doc. No. 565.
Accordingly, the defendants’ request for summary judgment as to the agency’s
withholdings in Doc. No. 565 is denied, and the defendants are directed to release Doc. No. 565
in its entirety.
IV. CONCLUSION
For the reasons discussed above, the defendants’ renewed motion for summary judgment
is granted in part and denied in part, and the plaintiffs’ motion for partial summary judgment is
denied. Specifically, the defendants’ renewed motion for summary judgment is denied as to (1)
Count Four, regarding NSC’s exhaustion of administrative remedies for FOIA request F-2012-
00857, as well as the CIA’s withholdings in Doc. Nos. 47, 221, 222, 224, 225, and 245, under
the CIA Act and Exemption 3; (2) Count Eight, with respect to the CIA’s withholdings in Doc.
No. 473 through Doc. No. 531, under Exemption 1 and Exemption 3; (3) Count Sixteen, with
respect to the adequacy of the CIA’s search for documents responsive to FOIA request F-2011-
01679, as well as the CIA’s withholdings in Doc. Nos. 555 and 556, under the CIA Act and
Exemption 3; (4) Count Seventeen, with respect to the CIA’s withholdings in Doc. Nos. 557 and
558, under the CIA Act and Exemption 3; and (5) Count Twenty, with respect to the CIA’s
withholdings in Doc. No. 565 under Exemption 5’s deliberative process privilege; and granted in
all other respects. The parties shall submit jointly a proposed schedule to the Court by November
28, 2016, to govern further proceedings necessary to resolve this matter fully.
An Order consistent with this Memorandum Opinion will issue contemporaneously.
Digitally signed by Hon. Beryl A. Howell
DN: cn=Hon. Beryl A. Howell, o=U.S.
Date: November 14, 2016 District Court for the District of
Columbia, ou=Chief Judge,
email=Howell_Chambers@dcd.uscourts.
gov, c=US
Date: 2016.11.14 17:58:13 -05'00'
__________________________
BERYL A. HOWELL
Chief Judge
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