National Security Counselors v. Central Intelligence Agency

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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NATIONAL SECURITY COUNSELORS )
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Plaintiff, )
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v. ) Civil Action No. 1:11-cv-00442 (RMC)
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CENTRAL INTELLIGENCE AGENCY, )
DEPARTMENT OF DEFENSE )
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Defendants. )
_______________________________________)
MEMORANDUM OPINION
Plaintiff National Security Counselors (“NSC”) is a non-profit organization that
disseminates information to the public regarding government activity related to national security.
NSC made Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, requests to the Central
Intelligence Agency (“CIA”) and the Department of Defense (“DOD”) relating to the
Defendants’ Mandatory Declassification Review (“MDR”) programs. Unsatisfied with the
responses it received, NSC sued both the CIA and the DOD. The CIA moves for summary
judgment on Counts 1 and 2 of the First Amended Complaint. The Court will deny the CIA’s
motion for summary judgment.
I. FACTS
NSC filed two FOIA requests with the CIA relating to its MDR program. The
first request was submitted on April 23, 2010 and the second on November 30, 2010.
A. First Request (No. F-2010-01033)
On April 23, 2010, NSC submitted a FOIA request to the CIA for “copies of all
current [CIA] regulations, policy statements, guidelines, memoranda, training materials,
handbooks, manuals, checklists, worksheets, instructions, and similar documents on the topic of
[MDR].” Mot. Summ. J., Declaration of Martha Lutz [Dkt. # 22-1] (“Lutz Decl.”), Ex. A. In
this letter, NSC specified that the “request is limited to documents in current use as of 23 April
2010.” Id. The CIA acknowledged receipt of this request on May 5, 2010 and designated it as
Request No. F-2010-01033. Id., Ex. B. NSC subsequently — by letter dated May 7, 2010 —
clarified the date limitation placed on its request, stating that “current” should not be limited to
April 23, 2010 and that “any records that represented policies or practices that were implemented
after [April 23, 2010]” should also be deemed responsive. Id., Ex. C.
The CIA follows a standard procedure when responding to FOIA requests. The
Information Management Services (“IMS”) serves as the “initial reception point for all FOIA
requests made to the CIA.” Id. ¶ 19. Once a request is received, an IMS professional analyzes it
to determine which of five agency directorates is reasonably likely to contain records responsive
to the particular request. Id. The CIA’s records systems are “decentralized and
compartmentalized,” making it necessary for an Information Review Officer (“IRO”) to
determine which components within each of the identified directorates are reasonably likely to
contain responsive records. Id. ¶ 20. Once the components are identified, the IRO works with
personnel from each component to devise a search strategy tailored to the particular configuration
of the components’ records systems, including which records systems to search and which search
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strategies to employ. Id. Records located through such searches are then reviewed to determine
whether they are responsive and whether any FOIA exemption(s) applies. Id.Request No. F-2010-01033 was processed according to this procedure. Id. ¶ 24.
IMS professionals determined that the Director of Central Intelligence Area “Director’s Area”
was the only one of the five directorates “reasonably likely” to contain responsive materials. Id.
¶¶ 1, 24, 26. The Director’s Area “maintains all internal Agency-wide regulatory issuances in
one searchable records system.” Id. ¶ 30. Among the various components of the Director’s Area
is the Office of the Chief Information Officer, which includes the IMS. Id. ¶ 25. The IMS is
responsible for administering the MDR program and maintains records related to the program.
Id. The Director’s Area conducted a search of the agency-wide records system and also searched
“other IMS records systems” for the requested MDR materials. Id. ¶ 30.
The search produced one responsive document, 32 C.F.R. § 1908, which is a CIA
regulation on MDR. CIA issued a final response to Request No. F-2010-01033 on May 24,
2011, informing NSC that a thorough search had been conducted and that one responsive
document was located. Id. ¶¶ 11, Ex. D. The MDR regulation, 32 C.F.R. § 1908, was released
to NSC in full. Id. ¶ 11, Ex. E.
B. Second Request (No. F-2011-00396)
On November 30, 2010, NSC submitted an additional FOIA request to the CIA
asking for a copy of the “special procedures for the [Mandatory Declassification] review of
information pertaining to intelligence activities . . . or intelligence sources or methods’ developed
by the Director of Central Intelligence pursuant to Sections 3.6(e) of Executive Order 12,958 and
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3.5(e) of Executive Order 13, 292.” Lutz Decl., Ex. F. This request was acknowledged on
December 20, 2010.
Like the first request, this request was assigned to the Director’s Area to search
for responsive documents because no other areas were likely to have responsive documents.
According to Ms. Lutz, “IMS searched relevant record systems containing all files reasonably
likely to contain responsive materials and located no records responsive to Plaintiff’s request.”
Lutz Decl. ¶ 33. Furthermore, Ms. Lutz concludes that “no search of CIA records would be
likely to locate ‘special procedures for the [Mandatory Declassification] review of information
pertaining to intelligence sources or methods developed by the Director of Central Intelligence
pursuant to Sections 3.6(e) of Executive Order 12,958 and 3.5(e) of Executive Order 13,292’
because . . . no such special procedures were ever developed by the then Director of Central
Intelligence under these provisions.” Id. ¶ 34.
On January 27, 2011, the CIA provided a final response to NSC stating that the
CIA did not locate any documents responsive to NSC’s request. Plaintiff appealed the adequacy
of the CIA’s search to the CIA’s Release Panel. On March 15, 2011, the Release Panel denied
NSC’s appeal and found that the CIA had conducted a reasonable search for responsive
documents. Id., Ex. K.
II. LEGAL STANDARD
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment must
be granted when “the pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c);
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Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Moreover, summary judgment is
properly granted against a party who “after adequate time for discovery and upon motion . . . fails
to make a showing sufficient to establish the existence of an element essential to that party’s
case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986). In ruling on a motion for summary judgment, the court must draw all
justifiable inferences in the nonmoving party’s favor and accept the nonmoving party’s evidence
as true. Anderson, 477 U.S. at 255. A nonmoving party, however, must establish more than “the
mere existence of a scintilla of evidence” in support of its position. Id. at 252.
FOIA cases are typically and appropriately decided on motions for summary
judgment. See, e.g., Miscavige v. IRS, 2 F.3d 366, 368 (11th Cir. 1993); Rushford v. Civiletti,
485 F. Supp. 477, 481 n.13 (D.D.C. 1980). In a FOIA case, a court may award summary
judgment to an agency upon the agency’s showing that it conducted a search “reasonably
calculated to uncover all relevant documents.” Weisberg v. United States Dep’t of Justice, 705
F.2d 1344, 1351 (D.C. Cir. 1983). The adequacy of a search is measured by a standard of
reasonableness, which must be decided on a case by case basis. Truitt v. Dep't of State, 897 F.2d
540, 542 (D.C. Cir.1990). The question is whether the search itself was adequate
notwithstanding the fact that other responsive documents may exist. Steinberg v. United States
Dep't of Justice, 23 F.3d 548, 551 (D.C. Cir. 1994). An agency is not required to search every
record system, but must conduct a good faith, reasonable search of those record systems likely to
possess the requested information. Oglesby v. United States Dep't of Army, 920 F.2d 57, 68
(D.C. Cir. 1990).
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III. ANALYSIS
The Court finds that the CIA has failed to demonstrate that it conducted a
reasonable and adequate search for documents in response to Request No. F-2010-01033.
Additionally, the affidavit submitted in support of the CIA’s motion for summary judgment is
sufficiently ambiguous to deny the CIA summary judgment with respect to Request No. F-2011-
00396.
A. Request No. 01033: Adequacy of CIA’s Search
The CIA has failed to demonstrate that its search was adequate. On a motion for
summary judgment, an agency may discharge its burden by submitting a “reasonably detailed
affidavit” describing the reasonable search performed and averring that all files likely to contain
responsive documents were searched. Oglesby, 920 F.2d at 68. The Court of Appeals for the
District of Columbia Circuit has described the agency's burden as follows:
The affidavits of the responding agency [need not] set forth with
meticulous documentation the details of an epic search for the
requested records. Rather, in the absence of countervailing
evidence or apparent inconsistency of proof, affidavits that explain
in reasonable detail the scope and method of the search conducted
by the agency will suffice to demonstrate compliance with the
obligations imposed by the FOIA.
Perry v. Block, 684 F.2d 121, 127 (D.C. Cir. 1982). At a minimum, an agency’s affidavit must
describe “what records were searched, by whom, and through what process.” Steinberg, 23 F.3d
at 552. Furthermore, the affidavit must explain the scope and method of the agency’s search in a
“non-conclusory fashion.” See Swope v. United States Dep’t of Justice, 439 F. Supp. 2d 1, 5
(D.D.C. 2006).
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The affidavit that the CIA relies upon to demonstrate a reasonable search is the
Declaration of Martha Lutz, the IRO for the Director’s area. Ms. Lutz described the general
process for responding to FOIA requests as well as the specific response to Request No. F-2010-
01033. Ms. Lutz outlined how the CIA chose the Director’s Area as the only directorate likely to
contain responsive materials because “[w]ithin the Director’s Area, IMS administers the CIA’s
Executive Order Mandatory Declassification Review program and maintains records relating to
that program.” Lutz Decl. ¶¶ 24-25. The affidavit to this point is sufficient as it outlines with
reasonable detail the CIA’s decision to limit the search to the Director’s Area.
When it comes to the actual search for records, however, the declaration merely
states that 1) “the Director’s Area conducted a thorough and diligent search of relevant Director’s
Area records systems for [responsive documents], ” and 2) the Director’s area searched a records
system that contains CIA regulations “as well as other IMS record systems.” Id. ¶¶ 29-30. The
affidavit concludes that a “thorough and diligent search” was conducted, but does not detail what
search terms were used, who conducted the search, how the search was conducted, or what the
“other” IMS records systems were that were searched. Accordingly, the affidavit lacks sufficient
detail for the Court to determine whether the search was adequate, and the Court must deny the
CIA’s motion for summary judgment on this Count. See, e.g., Steinberg, 23 F.3d at 552 (at a
minimum, an agency’s affidavit must describe “what records were searched, by whom, and
through what process.”); Morley v. Cent. Intelligence Agency, 508 F.3d 1108, 1122 (D.C. Cir.
2007) (holding that agency’s declaration was insufficient because it provided only a “general
explanation of how the agency responds to all FOIA requests” and failed to provide an
explanation for how the search was conducted); Friends of Blackwater v. United States Dep’t of
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the Interior, 391 F. Supp. 2d 115, 121 (D.D.C. 2005) (finding the agency’s search to be
inadequate where the declaration did not describe specific search terms); Oglesby, 920 F.2d at 68(holding the agency’s affidavit insufficient for summary judgment because the affidavit failed to
explain how the search was conducted and failed to identify the search terms used); Banks v.
United States Dep’t of Justice, 538 F. Supp. 2d 228, 238 (D.D.C. 2008) (finding that agency
failed to demonstrate an adequate search when its affidavits lacked specificity and only stated
that “responsible person(s)” conducted “thorough and efficient [searches].”).
B. Request No. 01033: Scope of the Request
NSC originally limited its request to documents that were “in current use as of 23
April 2010.” See Lutz Decl., Ex. A. Two days after the CIA confirmed receipt of NSC’s FOIA
request, NSC wrote to the CIA to “clarify and amend” its FOIA request. Id., Ex. C. NSC
clarified that it was seeking current documents; that the April 23, 2010 date was the date of the
submission; and that the CIA should not “exclude any records” that were implemented after
April 23, 2010. Id. The letter further stated that NSC’s “request is limited to documents in
current use, and records that are no longer in use may be excluded.” Id. The parties dispute
whether the CIA reasonably construed the term “current” in its search.
Although there have been multiple executive orders that set forth different MDR
provisions, as of April 23, 2010, the operative Executive Order was 13,292. Because Executive
Order 13,292 was the only executive order in force, the CIA asserts that “[o]nly documents used
under the MDR provisions of Executive Order 13,292 would have been ‘in current use as of 23
April 2010.’” Lutz. Decl. ¶ 28.
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NSC disagrees. According to NSC, the MDR provisions of Executive Order
13,292 “are virtually unchanged from its predecessor order, E.O. 12,958.” Opp’n at 3. As such,
according to NSC, “the vast majority of responsive records, such as checklists, worksheets, and
similar reference or training documents, would still be used by CIA analysts when processing
MDR requests.” Id. Thus, these records would still be “current” even if they were developed
under the prior, virtually identical (with respect to MDR) executive order.
The Court agrees with NSC that the scope of CIA’s search might have been
unreasonably limited. Agencies should interpret the scope of FOIA requests liberally. See
Nation Magazine, Washington Bureau v. United States Customs Serv., 71 F.3d 885, 890 (D.C.
Cir. 1995) (citing Truitt, 897 F.2d at 544-55) (stating that agencies are under “a duty to construe
a FOIA request liberally”); Hemenway v. Hughes, 601 F. Supp. 1002, 1005 (D.D.C. 1985)
(“[A]gencies should go as far as they reasonably can to ensure that they include what requesters
want to have included within the scope of their FOIA requests.”). Additionally, an agency is not
permitted to deny requesters information by narrowing the scope of its search to exclude relevant
information. See Hemenway, 601 F. Supp. at 1005 (“[An agency cannot] read [a] request so
strictly that the requester is denied information the agency well knows exists in its files.”). The
results of the search indicate that the CIA was aware that NSC wanted materials in connection
with Executive Order 12,958 to the extent that they were still in “current” use. The search
conducted by CIA produced only one document that it deemed responsive to Request No. F-
2010-01033. See Lutz Decl., Ex. E. That document was 32 C.F.R. § 1908, which is entitled,
“Public Requests for Mandatory Declassification Review of Classified Information Pursuant to
Executive Order 12958.” Id. (emphasis added). Therefore, the CIA cannot reasonably claim that
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it did not believe NSC sought materials in connection with Executive Order 12,958 (to the extent
those materials were still current) when the single responsive document produced by CIA was
based on Executive Order 12,958.
In sum, if checklists, worksheets, and similar reference and training documents
were still being used by the CIA, although first utilized under Executive Order 12,958 and not
Executive Order 13,292, the CIA must “conduct a search reasonably calculated to uncover” those
documents. Weisberg, 705 F.2d at 1351. The CIA must clarify whether such other documents
exist and, if so, conduct a reasonable search for them.
B. Request No. 00396
Both Executive Order 12,958 and 13,292 require various department heads to
develop special procedures with respect to reviewing certain materials for mandatory
declassification:
After consultation with affected agencies, the Secretary of Defense
shall develop special procedures for the review of cryptologic
information, the Director of Central Intelligence shall develop special
procedures for the review of information pertaining to intelligence
activities (including special activities), or intelligence sources or
methods, and the Archivist shall develop special procedures for the
review of information accessioned into the National Archives.
Exec. Order No. 12,958 § 3.6(e) (emphasis added); Exec. Order No. 13,292 § 3.5(e) (same).
NSC’s second FOIA request (No. F-2011-00396) sought a copy of the “special procedures for the
review of information pertaining to intelligence activities (including special activities), or
intelligence sources or methods” required by the Executive Orders. Lutz Decl., Ex. F. The CIA
moves for summary judgment arguing that it could not find any relevant documents and that no
special procedures “were ever developed by the then Director of Central Intelligence.” Id. ¶ 34.
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NSC takes issue with the latter phrase. As long as the phrase “the then Director of Central
Intelligence” includes all Directors of Central Intelligence from the time Executive Order 12,958
was signed until the time of the search, then NSC has no problem with the search conducted by
the CIA and will voluntarily withdraw this part of its Complaint. If, however, the phrase “the
then Director of Central Intelligence” refers only to John Deutch (the Director when Executive
Order 12,958 was signed) or George Tenet (the Director when Executive Order 13,292 was
signed) and not to any other director(s) who may have actually developed the special procedures
required by the executive orders, NSC argues, the CIA has “completely subvert[ed] the plain
meaning of the request” and summary judgment should be denied. Pl.’s Opp’n [Dkt. # 24] at 10.
In its reply, the CIA does not directly clarify who is meant by the phrase “the then
Director of Central Intelligence.” Instead, the CIA states that “Plaintiff in effect asks the Court to
presume that Ms. Lutz used the phrase ‘the then Director of Central Intelligence’ as a way to
disguise that the agency had secretly interpreted Plaintiff’s request as only seeking special
procedures developed by one prior Director of Central Intelligence. No such distinction was
intended.” Reply [Dkt. # 25] at 8. The Court finds the statement sufficiently ambiguous,
however, that it cannot grant summary judgment. If special procedures were not developed by
any Director of Central Intelligence from the time Executive Order 12,958 was signed until the
time of the search under FOIA, the affidavit can easily be clarified to state as much.
Accordingly, the Court will deny without prejudice the CIA’s motion for summary judgement
with respect to NCS’s second FOIA request.
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IV. CONCLUSION
For the reasons stated, the CIA’s motion for summary judgment will be denied
without prejudice.
Date: March 28, 2012 /s/
ROSEMARY M. COLLYER
United States District Judge
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