Accuracy in Media, Inc. v. Department of Defense ( 2022 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ACCURACY IN MEDIA, et al.,
Plaintiffs,
v.
U.S. DEPARTMENT OF DEFENSE, et Civ. Action No. 14-1589
al., (EGS/DAR)
Defendants.
MEMORANDUM OPINION
I. Introduction
Plaintiffs Accuracy in Media, Inc.; Roger L. Aronoff;
Captain Larry W. Bailey, USN (Ret.); Lieutenant Colonel Kenneth
Benway, USA (Ret.); Colonel Richard F. Brauer, Jr., USA (Ret.);
Clare M. Lopez; Admiral James A. Lyons, Jr., USN (Ret.); and
Kevin Michael Shipp (collectively, “Plaintiffs”) have made a
series of requests for information related to the 2012 attack on
the United States Embassy in Benghazi, Libya. See generally Am.
Compl., ECF No. 31.1 They now sue U.S. Department of Defense and
its components (“DOD”); U.S. Department of State (“State
1
When citing electronic filings throughout this Opinion, the
Court refers to the ECF page numbers, not the page numbers of
the filed documents.
1
Department”); U.S. Department of Justice (“DOJ”) and its
component the Federal Bureau of Investigation (“FBI”); and the
Central Intelligence Agency (“CIA”) (collectively, “Defendants”)
under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552,
to obtain that information. See id.Pending before the Court are Defendants’ Motion for Summary
Judgment, see Defs.’ Mot. for Summ. J., ECF No. 68; and
Plaintiffs’ Cross-Motion for Summary Judgment, see Pls.’ Opp’n
Defs.’ Mot. Summ. J., Cross-Mot. for Summ. J., & Mot. Leave
Propound Interrog. to DOD, ECF No. 71. Also pending before this
Court is Plaintiffs’ Motion for Leave to Propound Interrogatory
to DOD. See id.; ECF No. 73. On January 7, 2019, the Court
referred the case to a magistrate judge for a Report and
Recommendation (“R. & R.”) on these pending motions, and the
case was randomly referred to Magistrate Judge Deborah A.
Robinson. See generally Docket for Civ. Act. No. 14-1589. On
August 27, 2020, Magistrate Judge Robinson issued her R. & R.
recommending that the Court grant in part and deny in part
Defendants’ Motion for Summary Judgment, ECF No. 68; grant in
part and deny in part Plaintiffs’ Cross-Motion for Summary
Judgment, ECF No. 71; and deny Plaintiffs’ Motion for Leave to
Propound Interrogatory to DOD, ECF No. 73. See R. & R., ECF No.
83 at 33.
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Plaintiffs raise several objections to Magistrate Judge
Robinson’s R. & R. See generally Pls.’ Obj. Magistrate Judge’s
R. & R. (“Pls.’ Objs.”), ECF No. 87. Upon careful consideration
of the R. & R., the objections and opposition thereto, the
applicable law, and the entire record herein, the Court hereby
ADOPTS Magistrate Judge Robinson’s R. & R., ECF No. 83; GRANTS
IN PART and DENIES IN PART Defendants’ Motion for Summary
Judgment, ECF No. 68; GRANTS IN PART and DENIES IN PART
Plaintiffs’ Cross-Motion for Summary Judgment, ECF No. 71; and
DENIES Plaintiffs’ Motion for Leave to Propound Interrogatory to
DOD, ECF No. 73.
II. Background
A. Factual
In 2014, Plaintiffs submitted over 40 separate FOIA
requests to Defendants to obtain records related to the 2012
attack on the United States Embassy in Benghazi, Libya. See
generally Am. Compl., ECF No. 31. Plaintiffs initiated this
litigation on September 19, 2014 to resolve those FOIA requests,
see Compl., ECF No. 1; and on March 2, 2018, the parties agreed
to narrow the issues, see Joint Mot. to Amend Briefing Schedule,
ECF No. 65.
The Court briefly recounts the FOIA requests that are
currently at issue below.
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1. DOD
Plaintiffs sent two letters to the Defense Intelligence
Agency (“DIA”) on April 7, 2014 and May 28, 2014. See Pls.’
Counter-Statement of Material Facts as to Which There is a
Genuine Issue (“SOMF”), ECF No. 71-5 ¶ 2. The first letter
requested “records of (1) maps depicting all assets within
fifteen hundred miles of Benghazi, Libya on September 11 and 12,
2012; (2) DOD assets that were pre-positioned off the coast of
Tripoli on October 18, 2011; and (3) records in calendar year
2012 of the threat to U.S. personnel because of al-Quaida or
Ansar al-Shariah or other belligerent build-up in Benghazi.” Id.
¶ 31. The second letter requested “(1) OPREP-3 PINNACLE
report(s) used to provide any DOD division with notification of,
or information about, the September 11 and 12, 2012 attacks on
the U.S. facilities in Benghazi, Libya”; and (2) “records of all
directives, orders, and other communications regarding the
readiness status of United States armed forces on the
anniversary of the September 11, 2001 attacks on the World Trade
Center” between July 1, 2012 and September 30, 2012. Id. ¶ 32.
The DIA conducted two searches of its Record Message
Traffic database. Id. ¶ 8. The agency identified 148 responsive
records, referred 92 records to other agencies for review, and
determined that it would withhold 25 records in part and 30
records in full pursuant to various FOIA exemptions. Id. ¶¶ 33-
4
34. The DIA’s process included an unfruitful search for the
OPREP-3 PINNACLE reports, even though it “is not the unit
responsible for issuing” the requested reports. Id. ¶¶ 6-7.
On March 31, 2014, Plaintiffs sent a FOIA request to the
Navy, Marine Corps, and European Command (“EUCOM”) for “orders
to, NAVSTA Rota personnel to get ready to deploy, and if
applicable, to deploy”; “orders [to an airborne special
operations unit in Croatia] to deploy to NAS Sigonella”; and
“orders to, NAS Sigonella personnel to get ready to deploy, and
if applicable, to deploy.” Id. ¶ 4. On October 1, 2014,
Plaintiffs sent a FOIA request to the African Command
(“AFRICOM”) for “records of all communications generated in
March of 2011, regarding Gaddafi’s expressed interest in a truce
and possible abdication and exile out of Libya.” Id. ¶ 5.
These DOD units conducted extensive searches for responsive
records. See id. ¶¶ 12-24. As relevant here, EUCOM produced a
redacted copy of the Executive Order (“EXORD”) from 3:00 A.M.
September 12, 2012, which “is the initial written order
directing EUCOM to execute an action in response to the
September 11, 2012 attack on the United States mission in
Benghazi, Libya.” See id. ¶¶ 24-25. DOD also located 12 pages of
maps responsive to Plaintiffs’ April 7, 2014 request, but
determined that it would withhold these records in full pursuant
5
to Executive Order 13,526 and FOIA Exemption 1. See id. ¶¶ 38-
40.
2. CIA
On February 24, 2014 and October 1, 2014, Plaintiffs
submitted two FOIA requests to the CIA. Id. ¶ 41. The CIA
conducted extensive searches for responsive records. See id. ¶¶
46-59. As relevant here, the CIA determined that several records
from the Inspector General (“IG”) were responsive to Plaintiffs’
October 2014 request. Id. ¶ 55. The agency concluded that it
could redact certain information in those IG files pursuant to
Section 6 of the Central Intelligence Agency Act of 1949 and
Section 102(A)(i)(1) of the National Security Act of 1947. Id. ¶
57. It also withheld information pursuant to various FOIA
exemptions. See id. ¶¶ 56-59.
3. FBI
On February 21, 2014, Plaintiffs requested from the FBI
accounts from survivors about the September 11, 2012 attack in
Benghazi, including the FBI’s 302 Interview Reports. See id. ¶
81. The FBI has never made these alleged reports public. Id. ¶
83.
B. Procedural
On May 10, 2018, Defendants moved for summary judgment. See
Defs.’ Mot. for Summ. J., ECF No. 68. Plaintiffs filed their
opposition to Defendants’ Motion for Summary Judgment as well as
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their Cross-Motion for Summary Judgment on June 25, 2018. See
Pls.’ Opp’n Defs.’ Mot. Summ. J., Cross-Mot. for Summ. J., &
Mot. Leave Propound Interrog. to DOD, ECF No. 71. Defendants
filed a brief in response on July 27, 2018, see Defs.’ Reply
Supp. Defs.’ Mot. Summ. J. & Opp’n Pls.’ Cross-Mot. Summ. J.,
ECF No. 77; and Plaintiffs filed their reply on August 27, 2018,
see Pls.’ Mem. Reply Defs.’ Opp’n Pls.’ Mot. Summ. J., ECF No.
80.
Plaintiffs also moved for leave to propound an
interrogatory to DOD. See Pls.’ Opp’n Defs.’ Mot. Summ. J.,
Cross-Mot. for Summ. J., & Mot. Leave Propound Interrog. to DOD,
ECF No. 71. Defendants filed a brief in opposition on July 9,
2018, see Defs.’ Opp’n Pls.’ Mot. Leave Propound Discovery
Against Def. DOD, ECF No. 74; and Plaintiffs filed their reply
on July 16, 2018, see Pls.’ Reply Def. DOD Opp’n Mot. Leave
Propound Interrog., ECF No. 75.
On January 7, 2019, the Court referred the case to a
magistrate judge for a Report and Recommendation (“R. & R.”) on
these pending motions, and the case was randomly referred to
Magistrate Judge Deborah A. Robinson. See generally Docket for
Civ. Act. No. 14-1589. On August 27, 2020, Magistrate Judge
Robinson issued her R. & R. recommending that the Court grant
Defendants’ Motion for Summary Judgment except as to the FBI’s
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Glomar response and deny Plaintiffs’ motions except as to the
Glomar issue. See R. & R., ECF No. 83 at 33.
On September 23, 2020, Plaintiffs filed objections to the
R. & R. See Pl.’s Objs., ECF No. 87. Defendants filed a notice
informing the Court that (1) it would not raise objections to
the R. & R.; and (2) the FBI was withdrawing its Glomar response
and had commenced a search for responsive records. See Defs.’
Notice Regarding R. & R., ECF No. 86. Defendants also filed a
brief in opposition to Plaintiffs’ objections on November 23,
2020. See Defs.’ Response Pls.’ Objs. Magistrate’s R. & R.
(“Defs.’ Opp’n”), ECF No. 91.
The motions are now ripe and ready for adjudication.
III. Legal Standard
A. Objections to a Magistrate Judge’s Report and
Recommendation
Pursuant to Federal Rule of Civil Procedure 72(b), a party
may file specific written objections once a magistrate judge has
entered a recommended disposition. Fed. R. Civ. P. 72(b)(1)-(2).
A district court “may accept, reject, or modify the recommended
disposition.” Fed. R. Civ. P. 72(b)(3); see also 28 U.S.C. §
636(b)(1)(C) (“A judge of the court may accept, reject, or
modify, in whole or in part, the findings or recommendations
made by the magistrate judge.”). A district court “must
determine de novo any part of the magistrate judge’s disposition
8
that has been properly objected to.” Fed. R. Civ. P. 72(b)(3).
“If, however, the party makes only conclusory or general
objections, or simply reiterates his original arguments, the
Court reviews the [R. & R.] only for clear error.” Houlahan v.
Brown, 979 F. Supp. 2d 86, 88 (D.D.C. 2013) (citation and
internal quotation marks omitted). “Under the clearly erroneous
standard, the magistrate judge’s decision is entitled to great
deference” and “is clearly erroneous only if on the entire
evidence the court is left with the definite and firm conviction
that a mistake has been committed.” Buie v. Dist. of Columbia,
No. CV 16-1920 (CKK), 2019 WL 4345712, at *3 (D.D.C. Sept. 12,
2019) (citing Graham v. Mukasey, 608 F. Supp. 2d 50, 52 (D.D.C.
2009)) (internal quotation marks omitted).
Objections must “specifically identify the portions of the
proposed findings and recommendations to which objection is made
and the basis for the objection[s].” LCvR 72.3(b). “[O]bjections
which merely rehash an argument presented and considered by the
magistrate judge are not ‘properly objected to’ and are
therefore not entitled to de novo review.” Shurtleff v. EPA, 991
F. Supp. 2d 1, 8 (D.D.C. 2013) (quoting Morgan v. Astrue, No.
08-2133, 2009 WL 3541001, at *3 (E.D. Pa. Oct. 30, 2009)). The
Court reviews Plaintiffs’ objections de novo.
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B. Summary Judgment
Federal Rule of Civil Procedure 56 provides that summary
judgment motions must be granted if “there is no genuine dispute
as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a); see also Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). The moving party
bears the initial burden “of informing the district court of the
basis for its motion, and identifying those portions of ‘the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,’ which
it believes demonstrate the absence of a genuine issue of
material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986); see also Fed. R. Civ. P. 56(c)(1). This burden “may be
discharged by ‘showing’ . . . that there is an absence of
evidence to support the nonmoving party’s case.” Celotex, 477
U.S. at 325.
A party opposing a summary judgment motion must show that a
genuine factual issue exists by “(A) citing to particular parts
of materials in the record . . . or (B) showing that the
materials cited do not establish the absence . . . of a genuine
dispute.” Fed. R. Civ. P. 56(c). Any factual assertions in the
moving party’s affidavits will be accepted as true unless the
opposing party submits his own affidavits or other documentary
evidence contradicting the assertion. See Neal v. Kelly, 963
10
F.2d 453, 456 (D.C. Cir. 1992). However, “the inferences to be
drawn from the underlying facts . . . must be viewed in the
light most favorable to the party opposing the motion.”
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986) (citation and internal quotation marks
omitted).
C. FOIA
FOIA is based on the recognition that an informed citizenry
is “vital to the functioning of a democratic society, needed to
check against corruption and to hold the governors accountable
to the governed.” NLRB v. Robbins Tire & Rubber Co., 437 U.S.
214, 242 (1978). It was enacted to “pierce the veil of
administrative secrecy and to open agency action to the light of
public scrutiny,” and it favors “full agency disclosure.” Dep’t
of the Air Force v. Rose, 425 U.S. 352, 360–61 (1976) (quoting
Rose v. Dep’t of the Air Force, 495 F.2d 261, 263 (2d Cir.
1974)).
Although FOIA is aimed toward “open[ness] . . . of
government,” Jud. Watch, Inc. v. U.S. Dep’t of Com., 375 F.
Supp. 3d 93, 97 (D.D.C. 2019); Congress acknowledged that
“legitimate governmental and private interests could be harmed
by release of certain types of information,” Critical Mass
Energy Project v. Nuclear Regul. Comm’n, 975 F.2d 871, 872 (D.C.
Cir. 1992) (citation and internal quotation marks omitted). As
11
such, pursuant to FOIA’s nine exemptions, an agency may withhold
certain requested information. 5 U.S.C. § 552(b)(1)-(9).
However, “because FOIA establishes a strong presumption in favor
of disclosure, requested material must be disclosed unless it
falls squarely within one of the nine exemptions.” See Burka v.
U.S. Dep't of Health & Hum. Servs., 87 F.3d 508, 515 (D.C. Cir.
1996) (citations omitted).
FOIA cases are usually and appropriately resolved on
motions for summary judgment. Brayton v. Off. of the U.S. Trade
Rep., 641 F.3d 521, 527 (D.C. Cir. 2011). An agency has the
burden of demonstrating that “each document that falls within
the class requested either has been produced, is unidentifiable,
or is wholly [or partially] exempt from the Act’s inspection
requirements.” Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978)
(citation and internal quotation marks omitted).
In reviewing a summary judgment motion in the FOIA context,
the court must conduct a de novo review of the record, see 5
U.S.C. § 552(a)(4)(B); but may rely on agency declarations, see
SafeCard Servs. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991).
Agency affidavits or declarations that are “relatively detailed
and non-conclusory” are accorded “a presumption of good faith,
which cannot be rebutted by purely speculative claims about the
existence and discoverability of other documents.” Id. (citation
and internal quotation marks omitted). The Court may award
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summary judgment solely on the basis of information provided by
the agency in declarations when the declarations describe “the
documents and 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.” Mil. Audit Project v. Casey,
656 F.2d 724, 738 (D.C. Cir. 1981) (citation and internal
quotation marks omitted).
IV. Analysis
A. Magistrate Judge Robinson Correctly Concluded that DOD
Conducted an Adequate Search
To prevail on summary judgment, an agency must show “beyond
material doubt . . . that it has conducted a search reasonably
calculated to uncover all relevant documents.” Weisberg v. DOJ,
705 F.2d 1344, 1351 (D.C. Cir. 1983). It must demonstrate “that
it made a good faith effort” to perform this search, “using
methods which can be reasonably expected to produce the
information requested.” Oglesby v. U.S. Dep’t of Army, 920 F.2d
57, 68 (D.C. Cir. 1990). If a FOIA requester challenges the
adequacy of the agency’s search, “the agency may meet its burden
by providing ‘a reasonably detailed affidavit, setting forth the
search terms and the type of search performed, and averring that
all files likely to contain responsive materials . . . were
13
searched.” Iturralde v. Comptroller of Currency, 315 F.3d 311,
313–14 (D.C. Cir. 2003). These affidavits “are accorded a
presumption of good faith.” SafeCard Servs., Inc. v. SEC, 926
F.2d 1197, 1200 (D.C. Cir. 1991).
A court may not grant summary judgment to the agency “if
the record raises substantial doubts regarding the agency’s
efforts, ‘particularly in view of well[-]defined requests and
positive indications of overlooked materials.’” Heartland All.
for Hum. Needs & Hum. Rts. v. U.S. Immigr. & Customs Enf’t, 406
F. Supp. 3d 90, 110 (D.D.C. 2019) (quoting Valencia-Lucena v.
U.S. Coast Guard, 180 F.3d 321, 326 (D.C. Cir. 1999)). The
burden is on the FOIA requester to produce “countervailing
evidence” creating a genuine dispute of material fact, id.(quoting Morley v. C.I.A., 508 F.3d 1108, 1116 (D.C. Cir.
2007)); and the requester “can only . . . rebut[]” the agency’s
affidavits “with clear evidence of bad faith,” Bigwood v. U.S.
Dep’t of Def., 132 F. Supp. 3d 124, 136 (D.D.C. 2015). “[T]he
fact that a particular document was not found does not
demonstrate the inadequacy of a search.” Boyd v. Crim. Div. of
U.S. Dep’t of Just., 475 F.3d 381, 391 (D.C. Cir. 2007).
Similarly, “[m]ere speculation that as yet uncovered documents
may exist does not undermine the finding that the agency
conducted a reasonable search for them.” SafeCard Servs., 926
F.2d at 1201.
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Here, Magistrate Judge Robinson determined that DOD is
entitled to a presumption of good faith as to the adequacy of
its search because “it submitted a ‘reasonably detailed’
declaration from Mark Herrington, the Associate Deputy General
Counsel in the DoD Office of General Counsel” (“Mr. Herrington”)
that sufficiently “explain[ed] how the searches for responsive
records were conducted.” R. & R., ECF No. 83 at 9-10. Plaintiffs
object to this conclusion, arguing that the agency’s search was
inadequate because: (1) DOD is not entitled to a presumption of
good faith; and (2) DOD failed to produce certain responsive
records. For the reasons explained below, the Court rejects both
arguments and ADOPTS the R. & R. with respect to the adequacy of
DOD’s search.
1. Plaintiffs Have Not Overcome the Presumption of Good
Faith Owed DOD
Plaintiffs raise two objections as to Magistrate Judge
Robinson’s conclusion that DOD’s affidavit is entitled to a
presumption of good faith. Plaintiffs first object that
Magistrate Judge Robinson did not consider DOD’s
misrepresentations regarding the timing of the orders
transmitted on September 11 and 12, 2012 after the attack on
Benghazi. See Pls.’ Objs., ECF No. 87 at 9-18. To support their
objection, they cite testimony from former Secretary of Defense
Leon Panetta (“former Secretary Panetta”) to a House Select
15
Committee that the first order following the attack was
transmitted at 8:39 P.M. on September 11, 2012. See Pls.’ Objs.,
ECF No. 87 at 9-18. Plaintiffs argue that these statements are
“evidence of bad faith” because the earliest order DOD produced
in this case was the 3:00 A.M. EXORD. Id. at 16.
Plaintiffs’ objection fails because the evidence they cite
is entirely consistent with DOD’s representations. In the
congressional testimony, former Secretary Panetta explained that
the National Military Command Center issued a formal order at
8:39 P.M. that was “the oral direction[] that commenced the
action for the task forces and the other units to move.” Clarke
Decl., Ex. 3 (“Panetta Test.”), ECF No. 71-1 at 15-16.
Similarly, in the affidavit DOD submitted, Mr. Herrington
explains that the 3:00 A.M. EXORD was “the first written order”
and that “the initial orders were conveyed verbally” earlier in
the night. Herrington Decl., ECF No. 68-4 ¶¶ 16-22. DOD also
submitted an accompanying exhibit that details the timeline of
orders even more clearly. Specifically, the timeline states that
former Secretary Panetta “provide[d] verbal authorization” for
various military units to prepare to deploy between 6:00 P.M.
and 8:00 P.M. on September 11, 2012. See Timeline of Dep’t of
Def. Actions on September 11-12, 2012 (“Timeline”), ECF No. 87-1
at 1. It explains that “[d]uring this period, actions [we]re
verbally conveyed from the Pentagon to the affected Combatant
16
Commands in order to expedite movement of forces upon receipt of
formal authorization.” Id. The timeline further records that at
8:39 P.M., the National Military Command Center “transmit[ted]
formal authorization” to move certain military units. Id. at 2.
Plaintiffs’ objection thus fails to address the factual
record in this case. The evidence from both parties supports
DOD’s claim that the order issued at 8:39 P.M. was a verbal
order. Plaintiffs have not offered any evidence that this order
was also reduced to writing that could have been produced here,
and indeed, the evidence suggests that it never was. Cf. Panetta
Test., ECF No. 71-1 at 15-16; Herrington Decl., ECF No. 68-4 ¶¶
16-22. Because Plaintiffs have not pointed to any actual
discrepancy between former Secretary Panetta’s public statements
and DOD’s FOIA production, their argument about the 8:39 P.M.
order cannot overcome the presumption of DOD’s good faith.
Plaintiffs also object that Magistrate Judge Robinson did
not appropriately consider certain other details in the Final
Report of the Select Committee on the Events Surrounding the
2012 Terrorist Attack in Benghazi, H. Rep. No. 114-848 (2016).
See Pls.’ Objs., ECF No. 87 at 9-22. They explain that the
following constitutes evidence of bad faith: former Secretary
Panetta’s “testimony [before Congress] conflicted with known
facts”; “his actions [on the night of the attack] were
contradictory”; he “professed initial ignorance of the
17
particulars of the siege”; and his “subordinates had assured him
that forces were moving when no such order had been
transmitted.” Id. at 16.
The Court agrees with Magistrate Judge Robinson that this
information “is of little significance.” R. & R., ECF No. 83 at
14. Plaintiffs are attempting to cast doubt on DOD’s search by
questioning the reliability of former Secretary Panetta’s
testimony to a House Select Committee. See Pls.’ Objs., ECF No.
87 at 9-22. Plaintiffs’ misgivings about that testimony are, at
most, “‘[h]azy allegations of administrative malfeasance,” which
“may sound incriminating” but are not the “concrete, specific
challenges to the sufficiency of [an agency’s] search [required
by the Court] in order to deny the agency summary judgment.’”
Am. Oversight v. U.S. Dep’t of Just., 401 F. Supp. 3d 16, 37
(D.D.C. 2019) (quoting Competitive Enter. Inst. v. U.S. Env’t
Prot. Agency, 12 F. Supp. 3d 100, 111 (D.D.C. 2014)). Plaintiffs
therefore have failed to meet their burden to produce
“countervailing evidence” of DOD’s alleged bad faith in
conducting its FOIA search. Heartland All. for Hum. Needs & Hum.
Rts., 406 F. Supp. 3d at 110.
2. DOD’s Search Was Adequate Even Though It Could Not
Locate Certain Records
Plaintiffs also object to Magistrate Judge Robinson’s
conclusion that DOD’s search was adequate because they claim
18
that she did not address four records DOD failed to locate. See
Pls.’ Objs., ECF No. 87 at 22-25. The first three records are a
series of orders issued at 8:02 P.M., 8:39 P.M., and 11:00 P.M.
on September 11, 2012. See id. at 22-23. To support their
argument that these records must exist, Plaintiffs cite
questions and notes from the Chief Investigative Counsel of the
House Select Committee on the Benghazi attack and testimony from
former Secretary Panetta before that Committee. This evidence is
not persuasive. The Chief Investigative Counsel discussed only
that the orders were conveyed and never indicated that the three
orders were written down. See Pls.’ Objs., ECF No. 87 at 23
n.29; Id. at 23 n.30. More pointedly, former Secretary Panetta
testified that these orders were “oral directions.” Panetta
Test., ECF No. 71-1 at 16. Plaintiffs’ repeated claims that
written records of these orders exist are “purely speculative”
and are insufficient to rebut DOD’s affidavit. SafeCard Servs.,
926 F.2d at 1200 (citation omitted).
Plaintiffs also claim that DOD’s search was inadequate
because the agency did not produce a “PINNACLE OPREP-3 Report.”
See Pls.’ Objs., ECF No. 87 at 23-25. In their Complaint, they
explain that they requested these reports from the DIA in their
May 28, 2014 FOIA request. See Compl., ECF No. 1 ¶¶ 19, 98. DOD
explained that, although the DIA “conducted [a search] in
response to this request,” it was unable to locate the reports
19
because “the OPREP 3 report would come from [AFRICOM],” not the
DIA. Herrington Decl., ECF No. 68-4 ¶¶ 23-24. As Magistrate
Judge Robinson explained in her R. & R., Plaintiffs have not
provided any countervailing evidence to rebut this affidavit and
suggest that the DIA should have been able to locate the reports
among its records. See R. & R., ECF No. 83 at 12 n.6; cf. Reps.
Comm. for Freedom of Press v. Fed. Bureau of Investigation, 877
F.3d 399, 408 (D.C. Cir. 2017). Without any evidence to overcome
the presumption of good faith owed DOD, Plaintiffs’
“speculati[on] about the existence and discoverability of” the
PINNACLE OPREP-3 reports within the DIA fails. SafeCard Servs.,
926 F.2d at 1200 (citation omitted).
Accordingly, the Court rejects Plaintiffs’ arguments;
ADOPTS this portion of the R. & R.; GRANTS Defendants’ Motion
for Summary Judgment regarding the adequacy of DOD’s search; and
DENIES Plaintiffs’ Cross-Motion for Summary Judgment on the
issue.
B. Magistrate Judge Robinson Correctly Concluded that DOD’s
Maps are Protected from Disclosure Under Exemption 1
Plaintiffs next challenge Magistrate Judge Robinson’s
conclusion that DOD appropriately withheld in full 12 pages of
maps containing “the numbers and locations of ships, submarines,
response forces, and aircraft surrounding Benghazi, Libya”; the
“numbers of military personnel located in particular countries
20
during that time”; and “the transit time required for each
available asset to reach Benghazi.” R. & R., ECF No. 83 at 15-16
(quoting Malloy Decl., ECF No. 69-1 ¶ 9). For the reasons that
follow, the Court rejects Plaintiffs’ arguments and ADOPTS this
portion of the R. & R.
FOIA Exemption 1 protects from disclosure information that
is “specifically authorized under criteria established by an
Executive order to be kept secret in the interest of national
defense or foreign policy” and is “in fact properly classified
pursuant to such Executive order.” 5 U.S.C. § 552(b)(1). The
current executive order governing classification is Executive
Order 13,526, see Exec. Order 13,526, 75 Fed. Reg. 707, 707
(Dec. 29, 2009); which authorizes information to be classified
if certain conditions are met, id.; see also Lindsey v. Fed.
Bureau of Investigation, 490 F. Supp. 3d 1, 11 (D.D.C. 2020).
The agency “bears the burden of proving the applicability
of claimed exemptions.” Am. C.L. Union v. U.S. Dep’t of Def.,
628 F.3d 612, 619 (D.C. Cir. 2011). In the national security
context, a court “must accord substantial weight to an agency’s
affidavit concerning the details of the classified status of the
disputed record.” Id. (quoting Wolf v. C.I.A., 473 F.3d 370, 374
(D.C. Cir. 2007)). Courts “have consistently deferred to
executive affidavits predicting harm to the national security,
and have found it unwise to undertake searching judicial
21
review.” Ctr. for Nat. Sec. Studies v. DOJ, 331 F.3d 918, 927
(D.C. Cir. 2003) (collecting cases).
Plaintiffs do not dispute that DOD classified the maps
pursuant to Sections 1.4(a), 1.4(d), and 1.4(g) of Executive
Order 13,526. See generally Pls.’ Objs., ECF No. 87. They
instead object that disclosure is appropriate because the
information in DOD’s records “implicate[s] no national security
interest.” Id. at 22. To support this argument, Plaintiffs cite
an affidavit from retired Admiral Lyons. See Lyons Decl., ECF
No. 71-2. The Court will not consider this evidence, though. The
declarant “merely states his opinion, instead of any facts,
about current national security risks,” R. &. R., ECF No. 83 at
12 n.5 (citing Lyons Decl., ECF No. 71-2 ¶ 2 (“The sole purpose
of this affidavit is to set forth my opinion.”)); and affidavits
consisting of “conclusory opinions” are insufficient on motions
for summary judgment, Waldie v. Schlesinger, 509 F.2d 508, 510
(D.C. Cir. 1974).
However, even if it were appropriate for the Court to weigh
this evidence, Plaintiffs’ assertion would fail. Retired Admiral
Lyons’ “opinion about the nature of current or future military
assets is limited at best” because he is currently retired and
does not know DOD’s current national security concerns. R. & R.,
ECF No. 83 at 16-17. DOD, by contrast, has explained that
“[e]ven with the passage of time, how DOD’s forces are
22
positioned at a particular time could provide potentially
damaging and/or threatening insight to adversaries regarding
DoD’s interests, intent and potential operations.” Malloy Decl.,
ECF No. 69-1 ¶ 11. Magistrate Judge Robinson found “no reason to
doubt” DOD’s assessment, which must be given “‘substantial
weight,’” R. & R., ECF No. 83 at 16 (quoting Am. C.L. Union, 628
F.3d at 619); and neither does the Court.
Plaintiffs also object to the R. & R. because the
information they requested is already publicly available through
a map published by the Congressional Research Service (“CRS”)
and another map they created. See Pls.’ Objs., ECF No. 87 at 19-
22. A FOIA requester may compel disclosure of classified
information otherwise protected pursuant to Exemption 1 if he
can establish the following: “(1) the information requested must
be as specific as the information previously released; (2) the
information requested must match the information previously
disclosed; and (3) the information requested must already have
been made public through an official and documented disclosure.”
Am. C.L. Union, 628 F.3d at 620-21 (citations omitted).
The maps Plaintiffs cite do not meet this standard because
“the information requested” does not “match the information
previously disclosed.” Id. at 620.2 The CRS map shows only the
2 Plaintiffs also argue that disclosure is appropriate because
“[t]he Congressional record on this issue is replete with
23
distances between Benghazi and other locations in the
Mediterranean region. See Clarke Decl., ECF No. 71-1 at 55.
Plaintiffs’ map provides only their estimates of travel times to
Benghazi from other locations in the Mediterranean region. See
id. at 118. Neither map details all of the information
Plaintiffs asked for in their FOIA requests, such as the
official positions of the military assets or the types of assets
at those locations. See Am. Compl., ECF No. 31 ¶¶ 30, 67, 75,
80, 95, 105. Controlling caselaw requires that the Court
“insist[] on exactitude.” Am. C.L. Union, 628 F.3d at 621. Thus,
because there are substantive differences between the
information requested and the information disclosed,3 the Court
agrees with Magistrate Judge Robinson’s conclusion that
disclosure is not required.
The Court therefore ADOPTS this portion of the R. & R.;
GRANTS Defendants’ Motion for Summary Judgment regarding the
withholding of DOD’s maps pursuant to FOIA Exemption 1; and
DENIES Plaintiffs’ Cross-Motion for Summary Judgment on the
issue.
discussions of the assets, travel times, and available personnel
and aircraft, and this information has been extensively reported
by the media.” Pls.’ Objs., ECF No. 87 at 21. They provide no
citations on this point, and so the Court rejects this argument.
3 Additionally, Plaintiffs’ map is not “an official and
documented disclosure.” Am. C.L. Union, 628 F.3d at 621.
24
C. The CIA Appropriately Redacted Portions of the Inspector
General’s Files
Plaintiffs next object to Magistrate Judge Robinson’s
determination that the CIA appropriately redacted records
related to a complaint sent to the CIA Inspector General David
Buckley. See R. & R., ECF No. 83 at 18. For the reasons below,
the Court ADOPTS the R. & R. as to the redaction of the CIA IG
files.
FOIA Exemption 3 allows an agency to withhold records that
are “specifically exempted from disclosure by statute” if the
statute “(A) requires that the matters be withheld from the
public in such a manner as to leave no discretion on the issue,
or (B) establishes particular criteria for withholding or refers
to particular types of matters to be withheld.” 5 U.S.C. §
552(b)(3); see also C.I.A. v. Sims, 471 U.S. 159, 167 (1985).
The CIA has invoked two exempting statutes to protect portions
of the IG files from disclosure: Section 6 of the Central
Intelligence Agency Act of 1949 (the “CIA Act”) and Section
102A(i)(1) of the National Security Act of 1947. See R. & R.,
ECF No. 83 at 20; Halperin v. CIA, 629 F.2d 144, 147 (D.C. Cir.
1980) (explaining that both statutes are exempting statutes
under Exemption 3).
Plaintiffs object to Magistrate Judge Robinson’s
application of the CIA Act here. They argue that the CIA must
25
produce redacted portions of the records because “‘the specific
subject matter of an investigation by . . . the Office of
Inspector General of the Central Intelligence Agency,’ unlike
most other CIA operational records, is subject to the FOIA.”
Pls.’ Objs., ECF No. 87 at 26 (quoting 50 U.S.C. § 3141(c)(3)).
This argument is unconvincing because the CIA never invoked
Section 3141 to protect any part of the IG files from
disclosure. See Shiner Decl., ECF No. 68-5 ¶¶ 41, 43. Indeed,
the CIA clarified in its response to Plaintiffs’ Cross-Motion
for Summary Judgment that it has never relied on Section 3141 to
try to prevent disclosure of the IG files. See Shiner Suppl.
Decl., ECF No. 77-2 ¶¶ 4-5; Defs.’ Opp’n, ECF No. 91 at 19.
Plaintiffs also object in passing to the following: “that
‘the subject matter of these records is apparent from the face
of them,’ that disclosure of the specifics of the wrongdoing
alleged could lead to the disclosure of the whistleblower’s
identity, and that nondisclosure is justified as the information
‘relates to intelligence sources and methods.’” Pls.’ Objs., ECF
No. 87 at 29-30 (footnotes omitted). The Court need not consider
these objections as Plaintiffs have not made any argument or
cited any law to support these bare points. See Berry L. PLLC v.
Kraft Foods Grp., Inc., No. CV 13-0475 (RBW), 2013 WL 12061613,
at *5 (D.D.C. Dec. 11, 2013) (“The Court need not consider
unsupported, cursory arguments.”).
26
Accordingly, the Court ADOPTS this portion of the R. & R.;
GRANTS Defendants’ Motion for Summary Judgment as to the
withholding of the CIA IG records; and DENIES Plaintiffs’ Cross-
Motion for Summary Judgment on the issue.
D. The Issue of the FBI’s Glomar Response is Moot
Magistrate Judge Robinson recommended denying Defendants’
Motion for Summary Judgment with respect to the FBI’s Glomar
response because the agency failed to provide a “logical” or
“plausible” explanation as to why “acknowledging the existence
of any 302 report would necessarily reveal the existence of
specific 302 reports.” R. & R., ECF No. 83 at 25-26; see Am.
C.L. Union v. C.I.A., 710 F.3d 422, 427 (D.C. Cir. 2013)
(citations omitted). In lieu of raising objections to the R. &
R., Defendants filed a Notice stating that that the FBI “no
longer intends to maintain its prior Glomar assertion” and will
now “conduct a search for responsive records that would have
been covered by the Glomar assertion.” Defs.’ Notice Regarding
R. & R., ECF No. 86 at 1.
Because of the FBI’s changed position, the Court need not
evaluate the R. & R.’s recommendation as to the Glomar response.
See Edelman v. Sec. & Exch. Comm’n, 172 F. Supp. 3d 133, 156
(D.D.C. 2016) (determining that the court need not resolve the
appropriateness of an agency’s Glomar response after the agency
withdrew its Glomar response and searched for responsive
27
records). Accordingly, the Court DENIES Defendants’ Motion for
Summary Judgment regarding the FBI’s Glomar response as moot.
E. Plaintiffs Have Not Met the Standard for Discovery
“It is well established that discovery is rare in FOIA
cases.” Cole v. Rochford, 285 F. Supp. 3d 73, 76 (D.D.C. 2018).
Courts permit discovery in these cases “only in exceptional
circumstances,” id.: “when [the FOIA] plaintiff has made a
sufficient showing that the agency acted in bad faith, has
raised a sufficient question as to the agency’s good faith, or
when a factual dispute exists and the plaintiff has called the
affidavits submitted by the government into question,” Citizens
for Resp. & Ethics in Wash. v. U.S. Dep’t of Just., No. CIV. 05-
2078(EGS), 2006 WL 1518964, at *3 (D.D.C. June 1, 2006)
(citations omitted).
Plaintiffs object to Magistrate Judge Robinson’s
recommendation that the Court deny their Rule 56(d) request to
propound an interrogatory to DOD. See Pls.’ Objs., ECF No. 87 at
16, 31. Specifically, they claim that DOD made certain
misrepresentations to Congress and the public, which establish
the agency’s bad faith and therefore support their discovery
request. Id. at 9-16; 31. However, as the Court explained supra,
Plaintiffs have not demonstrated that DOD acted in bad faith or
otherwise raised a question about DOD’s good faith in responding
to the FOIA requests at issue in this case. See Citizens for
28
Resp. & Ethics in Wash., 2006 WL 1518964, at *3. This failure is
fatal to their discovery request. See Am. Oversight v. U.S.
Dep’t of Just., 401 F. Supp. 3d 16, 29 (D.D.C. 2019); Cole, 285
F. Supp. at 76.
The Court therefore ADOPTS this portion of the R. & R. and
DENIES Plaintiffs’ Rule 56(d) request.
V. Conclusion
For the foregoing reasons, the Court ADOPTS Magistrate
Judge Robinson’s R. & R., ECF No. 83; GRANTS IN PART and DENIES
IN PART Defendants’ Motion for Summary Judgment, ECF No. 68;
GRANTS IN PART and DENIES IN PART Plaintiffs’ Cross-Motion for
Summary Judgment, ECF No. 71; and DENIES Plaintiffs’ Motion for
Leave to Propound Interrogatory to DOD, ECF No. 73.
An appropriate Order accompanies this Memorandum Opinion.
SO ORDERED.
Signed: Emmet G. Sullivan
United States District Judge
November 28, 2022
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