National Security Counselors v. Central Intelligence Agency

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
NATIONAL SECURITY COUNSELORS,
Plaintiff,
Civil Action Nos. 11-443, 11-444,
v. 11-445 (BAH)
CENTRAL INTELLIGENCE AGENCY, et Judge Beryl A. Howell
al.,
Defendants.
MEMORANDUM OPINION
The plaintiff, National Security Counselors (“NSC”), brings three related actions against
six federal intelligence and defense agencies, claiming numerous violations of the Freedom of
Information Act (“FOIA”), 5 U.S.C. § 552, et seq., and the Administrative Procedure Act
(“APA”), 5 U.S.C. § 701, et seq., and seeking declaratory and injunctive relief under the FOIA,
the APA, the Declaratory Judgment Act, 28 U.S.C. § 2201, the Mandamus Act, 28 U.S.C.
§ 1361, and the All Writs Act, 28 U.S.C. § 1651. The gravamen of the plaintiff’s claims is that
these intelligence and defense agencies—principally the Central Intelligence Agency (“CIA”)—
have improperly handled the plaintiff’s requests for a variety of information under the FOIA.
Although this allegedly improper agency behavior relates to a number of specific FOIA requests
made to the defendants, it has manifested more broadly in a series of what the plaintiff alleges to
be policies, practices, or standard operating procedures (“SOPs”) of the CIA that constitute
ongoing violations of the FOIA or the APA. 1 In essence, the plaintiff alleges a series of policies
or practices by the CIA that have endeavored systematically to extinguish FOIA requests at their
1
Although the CIA has a number of co-defendants in No. 11-445, the motions being decided in this opinion only
relate to claims against the CIA.
1
inception, before the agency’s duty to search or make withholding decisions are triggered and
before the agency must provide administrative remedies. In their totality, the allegations in these
related actions paint a picture of the CIA’s desire to minimize the substance of its internal,
administrative consideration of FOIA requests by crafting mechanisms that limit FOIA
requesters’ access to such consideration, which in turn has tested the mettle, commitment, and
resources of requesters like the plaintiff. The primary question presented by the CIA’s motions
to dismiss the policy-or-practice claims in all three actions is whether such mechanisms are
permitted by the FOIA.
I. BACKGROUND
The plaintiff in these related actions is a not-for-profit organization located in Arlington,
Virginia, which was chartered in July 2009 by an attorney named Kelly McClanahan. 2
According to its website, NSC performs four primary functions: (1) “to lawfully acquire from
the government material related to national security matters and distribute it to the public”;
(2) “to use this material in the creation of original publications discussing the respective
subjects”; (3) “to advocate for intelligent reform in the national security and information and
privacy arenas”; and (4) “to provide a low-cost alternative to certain deserving clients involved
in security law or information and privacy law-related proceedings.” See NAT’L SEC.
COUNSELORS, http://nationalsecuritylaw.org/ (last visited Oct. 17, 2012). To achieve these
2
Compl. ¶¶ 3, 11, Nat’l Sec. Counselors v. CIA (“NSC I”), No. 11-443 (Feb. 28, 2011). Because this opinion
addresses the claims in three separate actions brought by the same plaintiff, for purposes of organizational clarity
only, the Court will refer to each case in short form as follows: No. 11-443 will be referred to as “NSC I,” No. 11-
444 as “NSC II,” and No. 11-445 as “NSC III.” Additionally, for the same reasons, the Court will refer to court
filings in each case with a numerical prefix that corresponds to each Civil Case Number. For example, the
plaintiff’s memorandum in opposition to the defendant’s partial motion to dismiss in No. 11-444 will be referred to,
for citation purposes only, as “Pl.’s 444 Opp’n.”
2
functions, the plaintiff frequently requests information under the FOIA from government
agencies in the defense and intelligence sectors. 3
The instant actions involve challenges to both specific denials of records as well as
overarching policies and practices of the CIA that are alleged to violate the FOIA. The CIA’s
motions to dismiss currently pending before the Court, however, deal almost exclusively with the
overarching policies and practices alleged by the plaintiff. At issue are twelve separate alleged
policies or practices of the CIA, which the plaintiff claims are contrary to the CIA’s duties under
the FOIA. Specifically, the plaintiff alleges that the CIA has policies or practices of:
1. Refusing to recognize assignments of rights in FOIA requests (“Assignment of Rights
Policy”). See Compl. ¶¶ 19–22, NSC I.
2. Refusing to process requests for “aggregate data,” e.g., a database listing of FOIA
requests by fee category (“Aggregate Data Policy”). See FAC ¶¶ 12–16, NSC II.
3. Refusing to allow requesters the right of administrative appeal when their FOIA
requests are deemed improper (“Administrative Appeals Policy”). See FAC ¶¶ 27–
31, NSC II.
4. Applying an overbroad definition of the “reasonably describes” requirement
contained in 5 U.S.C. § 552(a)(3)(A) (“Reasonably Describe Policy”). See FAC
¶¶ 57–61, NSC II.
5. Failing to follow the requirement in 32 C.F.R. § 1900.12 that, if a FOIA request is
deemed improper, the agency must “work with, and offer suggestions to, the potential
requester in order to define a request properly” (“Work With Policy”). See FAC
¶¶ 72–77, NSC II.
6. Imposing the date of the CIA’s response letter to a requester as the cut-off date on all
FOIA request searches (“Cut-Off Date Policy”). See FAC ¶¶ 112–115, NSC II.
7. Applying a blanket exemption to all information pertaining to the CIA’s processing of
FOIA and Privacy Act requests (“Blanket Processing Notes Exemption Policy”). See
FAC ¶¶ 33–37, NSC III.
3
See, e.g., First Am. Compl. (“FAC”) ¶¶ 15, 19, 30, Nat’l Sec. Counselors v. CIA (“NSC II”), No. 11-444 (Mar. 21,
2011), ECF No. 6; First Am. Compl. (“FAC”) ¶¶ 36, 80, 97, Nat’l Sec. Counselors v. CIA (“NSC III”), No. 11-445
(Mar. 21, 2011), ECF No. 7; Pl.’s Opp’n to Def.’s Partial Mot. Dismiss (“Pl.’s 444 Opp’n”) at 18, NSC II, ECF No.
17.
3
8. Applying a blanket exemption to all FOIA and Privacy Act reference materials (e.g.,
training handbooks, manuals, guidelines) (“Blanket Reference Material Exemption
Policy”). See FAC ¶¶ 79–81, NSC III.
9. Categorically issuing Glomar responses to requests for information pertaining to
FOIA and Mandatory Declassification Review requests referred to the CIA by other
agencies (“Glomar Response Policy”). See FAC ¶¶ 94–98, NSC III.
10. Refusing to provide estimated dates of completion for FOIA requests (“Non-
Provision of Completion Date Policy”). See FAC ¶¶ 100–107, NSC III.
11. Refusing to identify records withheld in their entirety during the administrative stage
of FOIA processing (“Withheld Document Non-Identification Policy”). See FAC
¶¶ 118–122, NSC III.
12. Invoking FOIA exemptions on a document level without indicating which exemptions
apply to particular redactions at the administrative stage of FOIA processing
(“Document-Level Exemption Policy”). See FAC ¶¶ 128–133, NSC III.
The Court will first discuss the factual allegations related to each of these purported
policies or practices before discussing the legal issues presented by the CIA’s partial motions to
dismiss.
A. Assignment of Rights Policy
The plaintiff complains that the CIA refuses to recognize the assignment of rights related
to FOIA requests—an assignment necessitated in this particular case by Mr. McClanahan’s
change in employment. Prior to chartering NSC, Mr. McClanahan served as the Director of
FOIA Operations at another not-for-profit organization called the James Madison Project
(“JMP”). 4 According to the plaintiff, it shares with JMP “virtually all the same purposes and
interests,” except that NSC represents clients and JMP does not. See Pl.’s 443 Opp’n at 25.
Indeed, JMP’s stated mission is to “promote government accountability and the reduction of
secrecy, as well as to educate the public on issues relating to intelligence and national security
through means of research, advocacy and the dissemination of information.” See JAMES
4
Pl.’s Opp’n to Def.’s Mot. Dismiss (“Pl.’s 443 Opp’n”) at 2–3, NSC I, ECF No. 12.
4
MADISON PROJECT, http://www.jamesmadisonproject.org (last visited Oct. 17, 2012). On April
10, 2008, JMP submitted a FOIA request to the CIA for eleven articles originally published in
the CIA in-house journal Studies in Intelligence. Compl. ¶ 6, NSC I. On May 14, 2008, the CIA
acknowledged receipt of JMP’s request and notified JMP that no fees would be assessed for the
request. Id. ¶ 7. On February 27, 2009, the CIA released ten of the articles requested by JMP.
Four articles were released in full and six were released with redactions under FOIA Exemptions
1, 2, and 3. On April 13, 2009, JMP administratively appealed the CIA’s invocation of these
exemptions. Id. ¶¶ 8–9.
Several months after the administrative appeal of the withholding decisions was filed, on
July 31, 2009, Mr. McClanahan left JMP to charter NSC and serve as its Executive Director. Id.
¶ 11. Because the request for the Studies in Intelligence articles were a “pet project[]” of Mr.
McClanahan’s, see Pl.’s 443 Opp’n at 25, on October 7, 2009, JMP notified the CIA that it was
assigning all rights, benefits and interests in that request to NSC, including the right to “pursue
any administrative or legal methods at [NSC’s] disposal” relative to this request and also
“surrendering any claims it may have” with respect to this request. Id. Ex. Q at 1, ECF No. 12-
18; Compl. ¶ 12, NSC I. While the administrative appeal of the exemptions claimed on the
Studies in Intelligence articles was pending, the plaintiff sent a letter to the CIA on May 25,
2010, requesting that the appeal be amended to include a challenge to a redaction in one of the
articles since the agency had not claimed an exemption for this redaction, and the redaction had
been omitted from the original appeal. Compl. ¶ 13, NSC I. Prior to sending this letter, the
plaintiff had begun to suspect that the CIA was refusing to recognize JMP’s assignment of rights
(the “Assignment”), and the plaintiff therefore requested assistance from the CIA’s Office of
Government Information Services (“OGIS”) to clarify the CIA’s position on the Assignment. Id.5
¶ 14. The OGIS responded to the plaintiff on June 8, 2010, after consulting with the CIA’s
Office of General Counsel (“OGC”), informing the plaintiff that it was the CIA’s policy not to
accept assignments of rights with regard to FOIA requests and suggesting that the plaintiff would
need to file new FOIA requests for the same records in order to pursue them administratively.
Id. ¶ 15.
The plaintiff alleges in Count One of the Complaint in No. 11-443 that it has a legal right
to the information in the Studies in Intelligence articles that it requested, by virtue of the
Assignment, and it also challenges the CIA’s Assignment of Rights Policy in Count Two,
alleging that the policy is in violation of the FOIA and the APA. Id. ¶¶ 17, 19, 22. As a result,
the plaintiff seeks a full disclosure of the Studies in Intelligence articles originally requested by
JMP, 5 a declaration that the CIA’s policy of refusing to recognize assignments of rights violates
the FOIA and/or the APA, and an injunction compelling the CIA to accept assignments of rights.
Compl. at 7, NSC I.
B. Aggregate Data Policy
The plaintiff complains that the CIA denied five FOIA requests in 2010 for database
records organized into specific categories as detailed in each request, and with respect to four of
these requests the plaintiff claims that the CIA denied any administrative appeal rights.
Specifically, on July 5, 2010, the plaintiff submitted a FOIA request to the CIA seeking “a record
that would indicate the ten individuals responsible for the most FOIA requests submitted (each)
in Fiscal Years 2008, 2009, and 2010.” FAC ¶ 42, NSC II; Pl.’s 444 Opp’n Ex. A at 1, ECF No.
17-2. The CIA responded on July 22, 2010 that it was declining to process this request, stating:
5
The CIA accepted JMP’s appeal regarding the Studies in Intelligence articles on April 23, 2009, see Pl.’s 443
Opp’n Ex. Q at 7, but the parties have provided no information about the status of that appeal or whether the
administrative remedies regarding that request have been exhausted. The CIA does not contest the issue of
exhaustion, and thus the Court will assume that administrative remedies for that claim have been exhausted.
6
“We have completed a thorough review of your request and have determined that our record
systems are not configured in a way that would allow us to perform a search reasonably
calculated to lead to the responsive record without an unreasonable effort.” Pl.’s 444 Opp’n Ex.
A at 4. The CIA’s response further stated: “The FOIA does not require federal agencies to
perform research, create records or conduct unreasonable searches through a body of material to
see if any of it is related to a particular request.” Id. The plaintiff did not appeal this
determination, and it alleges that if it had submitted an administrative appeal, the CIA would
have refused to accept it. FAC ¶ 44, NSC II. In Count Eight of the First Amended Complaint in
No. 11-444, the plaintiff maintains that it has a legal right to this requested record and seeks the
record’s disclosure. Id. ¶ 45.
On August 8, 2010, the plaintiff submitted four FOIA requests to the CIA seeking
“database listings of all FOIA requesters from Fiscal Years 2008–2010 according to the fee
categories to which CIA assigned them.” Id. ¶ 6. In particular, each of these requests sought “a
database listing of all the FOIA requesters from FY 2008–present that you have classified as”
either “news media,” “educational or scientific,” “commercial,” or “all other.” See Pl.’s 444
Opp’n Ex. B at 1, 4, 7, 10, ECF No. 17-3. On September 30, 2010, the CIA acknowledged
receipt of these requests and assigned them tracking numbers but informed the plaintiff that it
was declining to process the requests, stating that “[t]he FOIA does not require federal agencies
to create a record, collect information, conduct research, or analyze data.” Id. at 14–17. The
plaintiff attempted to administratively appeal these determinations, but the CIA responded on
October 21, 2010 that “since we did not provide you with appeal rights, we cannot accept your
appeal[s].” Id. at 18–21. In Count One of the First Amended Complaint in No. 11-444, the
7
plaintiff maintains that it has a legal right to these requested records and seeks the records’
disclosure. See FAC ¶ 10, NSC II.
In addition to these five specific denials of FOIA requests, the plaintiff also alleges that
the “CIA’s refusal to process requests for aggregate data represents an ongoing policy, practice,
or standard operating procedure (‘SOP’)” that violates the FOIA. Id. ¶¶ 12–13. The plaintiff
seeks declaratory and injunctive relief from this alleged Aggregate Data Policy in Counts Two,
Three, and Four of the First Amended Complaint in No. 11-444 under the FOIA, the APA, and
the Mandamus Act, respectively. Id. ¶¶ 13, 16, 18–20, 22–25.
C. Reasonably Describe Policy
Next, the plaintiff complains about two FOIA requests made in 2010 and 2011,
respectively, that the CIA declined to process for failure to “reasonably describe” the records
sought—a decision by the CIA that the plaintiff claims would also result in a denial of
administrative appeal rights, although the plaintiff did not test that result by filing any
administrative appeals. Specifically, on May 13, 2010, the plaintiff submitted a FOIA request to
the CIA seeking “a representative sample of [CIA] analytical reports and memoranda presenting
psychological analyses or profiles of foreign government officials, terrorist leaders, international
criminals, business figures, and other intelligence targets prepared by the Medical and
Psychological Analysis Center (‘MPAC’) or its predecessor Office of Leadership Analysis
(‘OLA’).” 6 The request specified that a “representative sample” meant: (a) “[o]nly final official
reports or memoranda,” (b) no more than twenty reports/memoranda from any given year,
(c) “[f]our reports/memoranda for each year . . . for individuals in each category of intelligence
target,” and (d) “[r]easonable variety in the intelligence targets wherever possible.” Lutz Decl.
6
Decl. of Martha Lutz, Information Review Officer, Director’s Area, Central Intelligence Agency (“Lutz Decl.”)
Ex. M at 1, NSC II, ECF No. 20-3.
8
Ex. M at 1–2. The CIA responded to this request on June 23, 2010, stating that it could not
accept the request in its current form because it had not “reasonably describe[d]” the records
sought, citing the “breadth and lack of specificity” of the request and “the way in which [the
CIA’s] records systems are configured.” Id. Ex. N at 1, ECF No. 20-3. The CIA’s response
further encouraged the plaintiff “to refine the scope of your request (such as including a narrower
time frame for, and more specific descriptions of, the information you seek) to enable us to
conduct a reasonable search for responsive information.” Id. Once again, the plaintiff did not
appeal this determination, and it alleges that if it had submitted an administrative appeal, the CIA
would have refused to accept it. FAC ¶ 49, NSC II. In Count Nine of the First Amended
Complaint in No. 11-444, the plaintiff maintains that it has a legal right to this requested record
and seeks the record’s disclosure. Id. ¶ 50.
Relatedly, on February 16, 2011, the plaintiff submitted a FOIA request to the CIA
seeking “all [CIA] records pertaining to the IBM supercomputer named ‘Watson.’” Lutz Decl.
Ex. O at 1, ECF No. 20-3. The CIA’s response to this request on March 2, 2011 was
substantially identical to its response to the plaintiff’s May 13, 2010 FOIA request, stating that it
could not accept the request in its current form because it had not “reasonably describe[d]” the
records sought, citing the “breadth and lack of specificity” of the request and “the way in which
[the CIA’s] records systems are configured.” Id. Ex. P at 1, ECF No. 20-3. The CIA’s response
further encouraged the plaintiff “to refine the scope of your request (such as contracts, if they
exist, which would explain records pertaining to ‘Watson’) to enable us to conduct a reasonable
search for responsive information.” Id. Yet again, the plaintiff did not appeal this determination,
and it alleges that if it had submitted an administrative appeal, the CIA would have refused to
accept it. FAC ¶ 54, NSC II. In Count Ten of the First Amended Complaint in No. 11-444, the
9
plaintiff maintains that it has a legal right to these requested records and seeks the records’
disclosure. Id. ¶ 55.
In addition to these two specific denials of FOIA requests, the plaintiff has submitted
forty-four other denials by the CIA that rely on the requester’s failure to “reasonably describe”
the records sought as a basis for declining to process the requests. Pl.’s 444 Opp’n Ex. E at 1–
45, 47–51, 53–55. The plaintiff alleges that these refusals to process requests that do not
“reasonably describe” records sought is related to the fact that “[i]n a majority of these cases,
CIA has cited the configuration of its records systems as a disqualifying factor.” FAC ¶ 58, NSC
II. These forty-four other denials span nearly four years, from August 1, 2007 to June 27, 2011,
and they are in reference to FOIA requests made by the plaintiff as well as a number of other,
non-party FOIA requesters, including JMP, MuckRock, Gawker Media, and the National
Security Archive. Pl.’s 444 Opp’n Ex. E at 1–45, 47–51, 53–55. The plaintiff alleges that, by
relying upon “the configuration of its records systems” in concluding that FOIA requests fail to
“reasonably describe” records sought, the CIA’s “application of FOIA’s ‘reasonably describe’
requirement is significantly and consistently broader than is allowed by FOIA,” which the
plaintiff claims is a policy or practice of the CIA that violates the FOIA. FAC ¶¶ 58–59, NSC II.
The plaintiff seeks declaratory and injunctive relief from this alleged Reasonably Describe
Policy in Counts Eleven, Twelve, and Thirteen of the First Amended Complaint in No. 11-444
under the FOIA, the APA, and the Mandamus Act, respectively. Id. ¶¶ 59, 61, 63–65, 67–70.
D. Administrative Appeals Policy and Work With Policy
As discussed above, when the plaintiff attempted to administratively appeal the CIA’s
refusal to process the plaintiff’s August 8, 2010 FOIA requests seeking “database listings of all
FOIA requesters from Fiscal Years 2008–2010 according to the fee categories to which CIA
assigned them,” the CIA refused to accept the plaintiff’s administrative appeal. FAC ¶ 6, NSC
10
II; see also Pl.’s 444 Opp’n Ex. B at 18–21. According to the plaintiff, this was not an isolated
incident. The plaintiff has also submitted examples of similar refusals to allow administrative
appeals by the CIA in response to three other FOIA requests submitted by two non-party FOIA
requesters. See id. Ex C at 2; id. Ex. D. From these examples, the plaintiff alleges that,
whenever the CIA refuses to process a FOIA request that it deems “improper” (e.g., because it
does not “reasonably describe” requested records or it seeks “aggregate data”), the CIA has a
policy or practice of refusing to accept administrative appeals from those decisions. See FAC
¶¶ 28–29, NSC II. The plaintiff claims that this Administrative Appeals Policy violates the
FOIA, and it seeks declaratory and injunctive relief from the alleged policy in Counts Five, Six,
and Seven of the First Amended Complaint in No. 11-444 under the FOIA, the APA, and the
Mandamus Act, respectively. FAC ¶¶ 29, 31, 33–35, 37–40, NSC II.
Similarly, the plaintiff alleges that in the “numerous instances in which CIA has refused
to process a FOIA request it deemed improper,” the CIA has endeavored to “‘work with, and
offer suggestions to, the potential requester’” in “virtually none of those circumstances.” Id. ¶ 74(quoting 32 C.F.R. § 1900.12(c)). In support of this claim, the plaintiff cites a series of CIA
responses to “improper” FOIA requests that either “contained only six formulaic suggestions” or
“did not contain any suggestions at all.” See Pl.’s 444 Opp’n Ex. E at 1, 3–51, 53–55. The
plaintiff claims that this behavior constitutes a policy or practice that violates the CIA’s own
FOIA regulation, 32 C.F.R. § 1900.12(c), which states: “Communications which do not meet
the[] requirements [of reasonably describing the records sought and not requiring an
unreasonable search] will be considered an expression of interest and the Agency will work with,
and offer suggestions to, the potential requester in order to define a request properly.” See FAC
¶¶ 73–75. The plaintiff seeks declaratory and injunctive relief from this alleged Work With
11
Policy in Counts Fourteen, Fifteen, and Sixteen of the First Amended Complaint in No. 11-444
under the FOIA, the APA, and the Mandamus Act, respectively. Id. ¶¶ 75, 77, 79–81, 83–86.
E. Cut-Off Date Policy
The plaintiff alleges that “[i]n every response letter [it] has received from CIA, CIA has
imposed an arbitrary cut-off date on the search of the date of the response letter, regardless of the
nature of the request or how long the search is expected to take.” Id. ¶ 112. Although the
plaintiff alleges that the CIA imposes this “arbitrary cut-off date” in response to every FOIA
request it has ever made to the CIA, the plaintiff has also submitted ten examples of such
responses to serve as a “representative sample,” all of which were sent to the plaintiff after this
action was commenced. Pl.’s 444 Opp’n at 14–15; id. Ex. G. The plaintiff alleges that applying
an “arbitrary ‘date of response’ cut-off date regardless of the nature of the request or the
anticipated length of the search” is a policy or practice of the CIA that violates the FOIA, and the
plaintiff seeks declaratory and injunctive relief from this alleged Cut-Off Date Policy in Count
Twenty-One of the First Amended Complaint in No. 11-444 under the FOIA. FAC ¶¶ 113, 115,
NSC II.
F. Withheld Document Non-Identification Policy and Document-Level
Exemption Policy
Next, the plaintiff alleges two policies or practices of the CIA that relate to the CIA’s
processing of FOIA requests at the administrative level. First, the plaintiff claims that “[i]n
every case in which CIA has withheld records in their entirety in response to [one of the
plaintiff’s] FOIA request[s], . . . CIA has consistently refused to identify any of the records
withheld in their entirety.” FAC ¶ 118, NSC III. The plaintiff alleges that this persistent
“refus[al] to identify withheld records in the administrative stage” is a policy or practice of the
CIA, citing a publicly available CIA training outline created in 2001, which states, “at initial and
12
at appeal stage, no listing of documents . . . is required,” and the plaintiff claims that this
Withheld Document Non-Identification Policy violates the FOIA. Id. ¶¶ 118–20. The plaintiff
therefore seeks declaratory and injunctive relief from this alleged policy in Counts Eighteen and
Nineteen, of the First Amended Complaint in No. 11-445 under the FOIA and the APA,
respectively. See id. ¶¶ 120, 122, 124–26.
The plaintiff also alleges that, “[i]n the majority of cases in which CIA has withheld
records in their entirety in response to [one of the plaintiff’s] FOIA request[s], . . . CIA has
consistently invoked exemptions in the alternative,” and that “[i]n every case in which CIA has
redacted information from records released in response to [one of the plaintiff’s] FOIA
request[s], . . . CIA has consistently invoked exemptions on a document-level without indicating
which exemptions applied to which particular redactions.” Id. ¶¶ 128–29. The plaintiff further
alleges that this activity represents an ongoing policy or practice of the CIA, citing the same
training manual it cited in challenging the alleged Withheld Document Non-Identification Policy,
which also states that “at the initial and at appeal stage, no . . . putting specific exemptions next
to redactions, is required,” and the plaintiff claims that this alleged Document-Level Exemption
Policy violates the FOIA. Id. ¶¶ 119, 130–31. The plaintiff seeks declaratory and injunctive
relief from this alleged policy in Counts Twenty and Twenty-One of the First Amended
Complaint in No. 11-445 under the FOIA and the APA, respectively. Id. ¶¶ 133, 135–37.
G. Blanket Processing Notes Exemption Policy and Blanket Reference Material
Exemption Policy
The plaintiff has, through numerous separate FOIA requests, sought two types of records
integral to the processing of FOIA requests: namely, notes prepared and reference materials
used by personnel actually processing the requests, but the plaintiff claims that the CIA has
categorically declined to disclose either type of record. Specifically, on December 1, 2009, the
13
plaintiff submitted a FOIA request to the CIA seeking “copies of all CIA records ‘referencing
FOIA and Privacy Act requests submitted by [ten listed parties] that contain remarks, comments,
notes, explanations, etc. made by CIA personnel or contractors about the processing of these
requests (and appeals, if appropriate), the invocation of exemptions, or related matters.’” FAC
¶ 11, NSC III. This information was to include “analysts’ notes made during the processing of
the requests, any standard worksheets completed by the analysts, any justifications for exemption
invocations,” as well as “any correspondence referencing the requests.” Id. The plaintiff refers
to this kind of request generally as a “Processing Notes request,” and the plaintiff alleges that it
has also submitted seventeen other Processing Notes requests to the CIA, and in thirteen of those
requests the CIA identified responsive records. Id. ¶¶ 11, 33. The plaintiff also claims that, in
response to twelve of those thirteen FOIA requests involving responsive records, the CIA “has
withheld everything from . . . release except for correspondence with the requester.” Id. ¶ 33.
Relatedly, the plaintiff submitted a FOIA request on February 6, 2010 for “copies of ‘all
current training handbooks, manuals, guidelines, checklists, worksheets, and similar documents
provided to [CIA] FOIA and Privacy Act analysts.” Id. ¶ 56. The plaintiff refers to this kind of
request generally as a “Reference Materials request,” and it claims that, in response to FOIA
requests seeking such reference materials, the CIA “appl[ies] a blanket exemption” to all such
reference materials. Id. ¶ 79.
The plaintiff claims that these patterns of activity by the CIA with respect to FOIA
processing notes and reference materials constitute two policies or practices that violate the
FOIA by applying an improper blanket exemption to all such materials, thereby preventing their
disclosure. Id. ¶¶ 33, 35, 79. As a result, the plaintiff seeks declaratory and injunctive relief
from the alleged Blanket Processing Notes Exemption Policy and Blanket Reference Material
14
Exemption Policy in Counts Four and Eleven of the First Amended Complaint in No. 11-445,
respectively, under the FOIA. Id. ¶ 37, 81.
H. Glomar Response Policy
The plaintiff has submitted nine FOIA requests to the CIA, two of which are at issue in
this litigation, seeking records “pertaining to FOIA or Mandatory Declassification Review
(‘MDR’) requests” that had been referred to the CIA by other government agencies. Id. ¶ 94.
Based on the two examples of such requests provided by the plaintiff, these requests were similar
to a Processing Notes request and sought the same types of information as such requests, except
that they sought processing notes from particular FOIA requests, rather than generally seeking all
CIA processing notes related to particular requesters. See id. ¶¶ 83, 89. The plaintiff alleges
that, in response to these processing notes requests, the CIA “issued a Glomar response to all but
one of these requests,” and it further alleges that this activity by the CIA constitutes an agency
policy or practice. Id. ¶ 94.
A Glomar response is “an exception to the general rule that agencies must acknowledge
the existence of information responsive to a FOIA request and provide specific, non-conclusory
justifications for withholding that information.” Roth v. U.S. Dep’t of Justice, 642 F.3d 1161,
1178 (D.C. Cir. 2011). 7 Thus, a Glomar response allows an agency to respond to a FOIA
request by neither confirming nor denying the existence of any records responsive to the request,
on the grounds that “confirming or denying the existence of records would itself ‘cause harm
cognizable under a[] FOIA exception.’” Id. (quoting Wolf v. CIA, 473 F.3d 370, 374 (D.C. Cir.
2007)). The plaintiff alleges that “[t]he fact that any given FOIA or MDR request is referred to
7
Glomar responses are “named for the Hughes Glomar Explorer, a ship used in a classified Central Intelligence
Agency 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, 642 F.3d at 1171 (quoting Phillippi v. CIA, 655 F.2d 1325, 1327 (D.C. Cir. 1981)).
15
CIA by another government agency is not classified,” and therefore the plaintiff claims that the
CIA’s alleged policy or practice of “authoriz[ing] a Glomar response to any request for
information pertaining to FOIA and MDR requests referred to an agency” is an ongoing violation
of the FOIA. Id. ¶ 95–96. The plaintiff seeks declaratory and injunctive relief from this alleged
Glomar Response Policy in Count Fourteen of the First Amended Complaint in No. 11-445
under the FOIA. Id. ¶ 98.
I. Non-Provision of Completion Date Policy
Finally, the plaintiff alleges that, in conjunction with pending FOIA requests with the
CIA, the plaintiff “asked CIA numerous times in 2009–2010 for estimated dates of completion
for its pending FOIA requests” pursuant to 5 U.S.C. § 552(a)(7)(B). Id. ¶ 101. That portion of
the FOIA provides that “[e]ach agency shall . . . provide[] information about the status of a
request to the person making the request,” including “an estimated date of on which the agency
will complete action on the request.” 5 U.S.C. § 552(a)(7)(B). The plaintiff claims that until
November 2010, the CIA “refused to provide [the plaintiff] with estimated dates of completion.”
FAC ¶ 101, NSC III.
On November 17, 2010, however, the plaintiff alleges that a representative of the CIA
informed the plaintiff “that CIA’s new policy was to inform requesters that the estimated date of
completion for any given request is two years from CIA’s date of receipt.” Id. That same day,
the plaintiff alleges, non-party JMP requested estimated dates of completion from the CIA for
three pending FOIA requests that were more than two years old, specifically invoking 5 U.S.C.
§ 552(a)(7)(B). Id. ¶ 102. Even so, the plaintiff alleges that on November 24, 2010, the CIA
responded to JMP’s request but “refused to provide the requested estimated dates of
completion.” Id. The plaintiff also alleges that the CIA similarly refused to provide estimated
dates of completion for pending FOIA requests to a non-party named Michael Ravnitzky, who
16
requested such dates on November 28, 2010. Id. ¶ 103. As a result of this pattern of behavior,
the plaintiff claims that the CIA’s refusal to provide estimated dates of completion, in
compliance with 5 U.S.C. § 552(a)(7)(B), represents an ongoing policy or practice of the CIA
that violates the FOIA. Id. ¶¶ 104–05. The plaintiff seeks declaratory and injunctive relief from
this alleged Non-Provision of Completion Date Policy in Counts Fifteen, Sixteen, and Seventeen
of the First Amended Complaint in No. 11-445 under the FOIA, the APA, and the Mandamus
Act, respectively. See id. ¶¶ 105, 107, 109–11, 113–16.
***
The plaintiff filed the Complaints in each of these three actions on February 28, 2011,
and the plaintiff filed a First Amended Complaint in Nos. 11-444 and 11-445 on March 21, 2011.
Pending before the Court are the CIA’s partial motions to dismiss in all three actions. The
motions have been brought pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to
state a claim as well as Rule 12(b)(1) for lack of subject-matter jurisdiction. For the reasons
discussed below, the Court will deny the CIA’s Partial Motion to Dismiss in No. 11-443, the
Court will grant in part and deny in part the CIA’s Partial Motion to Dismiss in No. 11-444, and
the Court will grant in part and deny in part the defendants’ Partial Motion to Dismiss in No. 11-
445. 8
8
As stated above, although the CIA has a number of co-defendants in No. 11-445, the motions being decided in this
opinion only relate to claims against the CIA.
17
II. STANDARDS OF REVIEW
A. Motions to Dismiss
In its partial motions to dismiss, the CIA invokes the legal standards for dismissal under
Federal Rules of Civil Procedure 12(b)(6) and 12(b)(1). 9
When faced with a motion to dismiss for lack of subject-matter jurisdiction under Rule
12(b)(1), a court has “an affirmative obligation to consider whether the constitutional and
statutory authority exist” for it to hear the case. James Madison Ltd. v. Ludwig, 82 F.3d 1085,
1092 (D.C. Cir. 1996) (internal quotation marks omitted). For this reason, “the [p]laintiff's
factual allegations in the complaint . . . will bear closer scrutiny in resolving a 12(b)(1) motion
than in resolving a 12(b)(6) motion for failure to state a claim.” Grand Lodge of Fraternal
Order of Police v. Ashcroft, 85 F. Supp. 2d 9, 13–14 (D.D.C. 2001) (internal quotation marks
omitted). When the purported lack of jurisdiction stems from a lack of standing, however, the
court “must assume that [the plaintiff] states a valid legal claim.” Info. Handling Servs., Inc. v.
Def. Automated Printing Servs., 338 F.3d 1024, 1029 (D.C. Cir. 2003). The proponent of
jurisdiction bears the burden of proving that it exists, Khadr v. United States, 529 F.3d 1112,
1115 (D.C. Cir. 2008), and while “the district court may consider materials outside the
pleadings,” it must “still accept all of the factual allegations in the complaint as true.” Jerome
Stevens Pharm., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005) (citations and internal
quotation marks omitted).
To survive a motion to dismiss under Rule 12(b)(6), a plaintiff need only plead “enough
facts to state a claim to relief that is plausible on its face” and to “nudge[ ] [his or her] claims
across the line from conceivable to plausible.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
9
See Mem. in Supp. Def.’s Mot. Dismiss Claims One and Two of Pl.’s Compl. (“Def.’s 443 Mem.”), at 1, NSC I,
ECF No. 7-1; Mem. in Supp. Def.’s Partial Mot. Dismiss (“Def.’s 444 Mem.”), at 1, NSC II, ECF No. 9-1; Mem. in
Supp. Defs.’ Partial Mot. Dismiss (“Defs.’ 445 Mem.”), at 1, NSC III, ECF No. 10-1.
18
(2007); see also FED. R. CIV. P. 12(b)(6). “[A] complaint [does not] suffice if it tenders ‘naked
assertion[s]’ devoid of ‘further factual enhancement.’” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Twombly, 550 U.S. at 557). Instead, the complaint must plead facts that are
more than “‘merely consistent with’ a defendant’s liability”; “the plaintiff [must] plead[ ] factual
content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. (quoting Twombly, 550 U.S. at 557); accord Rudder v. Williams, 666
F.3d 790, 794 (D.C. Cir. 2012). The Court “must assume all the allegations in the complaint are
true (even if doubtful in fact) . . . [and] must give the plaintiff the benefit of all reasonable
inferences derived from the facts alleged.” Aktieselskabet AF 21. November 2001 v. Fame Jeans
Inc., 525 F.3d 8, 17 (D.C. Cir. 2008) (citations and internal quotation marks omitted).
B. FOIA Generally
Congress enacted the FOIA to promote transparency across the government. See 5
U.S.C. § 552; Quick v. U.S. Dep’t of Commerce, Nat’l Inst. of Standards & Tech., 775 F. Supp.
2d 174, 179–80 (D.D.C. 2011) (citing Stern v. FBI, 737 F.2d 84, 88 (D.C. Cir. 1984)). The
Supreme Court has explained that FOIA is “a means for citizens to know ‘what their
Government is up to.’ This phrase should not be dismissed as a convenient formalism. It
defines a structural necessity in a real democracy.” Nat’l Archives & Records Admin. v. Favish,
541 U.S. 157, 171–72 (2004) (citations omitted). “The basic purpose of FOIA is to ensure an
informed citizenry, vital to the functioning of a democratic society, needed to check against
corruption and to hold the governors accountable to the governed.” NLRB v. Robbins Tire &
Rubber Co., 437 U.S. 214, 242 (1978). The strong interest in transparency must be tempered,
however, by the “‘legitimate governmental and private interests [that] could be harmed by
release of certain types of information.’” United Techs. Corp. v. U.S. Dep’t of Defense, 601 F.3d
557, 559 (D.C. Cir. 2010) (quoting Critical Mass Energy Project v. Nuclear Regulatory
19
Comm’n, 975 F.2d 871, 872 (D.C. Cir. 1992)). Accordingly, Congress included nine exemptions
permitting agencies to withhold information from FOIA disclosure. 5 U.S.C. § 552(b). “These
exemptions are explicitly made exclusive, and must be narrowly construed.” Milner v. Dep’t of
the Navy, 131 S. Ct. 1259, 1262 (2011) (citations and internal quotation marks omitted) (citing
FBI v. Abramson, 456 U.S. 615, 630 (1982)); see also Pub. Citizen, Inc. v. Office of Mgmt. &
Budget, 598 F.3d 865, 869 (D.C. Cir. 2010).
The D.C. Circuit has also recognized that, separate from claims seeking relief for specific
requests made under the FOIA, requesting parties may also assert a “claim that an agency policy
or practice will impair the party’s lawful access to information in the future.” Payne Enters.,
Inc. v. United States, 837 F.2d 486, 491 (D.C. Cir. 1988); accord Newport Aeronautical Sales v.
Dep’t of the Air Force, 684 F.3d 160, 164 (D.C. Cir. 2012). The Court in Payne held that a
policy-or-practice claim is viable “[s]o long as an agency’s refusal to supply information
evidences a policy or practice of delayed disclosure or some other failure to abide by the terms of
the FOIA, and not merely isolated mistakes by agency officials.” Payne, 837 F.2d at 491. To
state a claim for relief under the doctrine articulated in Payne, a plaintiff must plausibly
demonstrate that: (1) the agency in question has adopted, endorsed, or implemented a policy or
practice that constitutes an ongoing “failure to abide by the terms of the FOIA”; and (2) the
plaintiff will “suffer ‘continuing injury due to this practice.’” See id. (quoting Better Gov’t Ass’n
v. Dep’t of State, 780 F.2d 86, 91 (D.C. Cir. 1986)).
III. DISCUSSION
When a federal court is faced with both a challenge to its Article III jurisdiction to hear a
claim as well as a challenge to the merits of that claim, the court must address the jurisdictional
question before addressing any question of the merits. See Steel Co. v. Citizens for a Better
20
Env’t, 523 U.S. 83, 101 (1998); accord Pub. Citizen v. U.S. Dist. Ct. for the Dist. of Columbia,
486 F.3d 1342, 1346 (D.C. Cir. 2007) (“‘Article III jurisdiction is always an antecedent question’
to be answered prior to any merits inquiry.” (quoting Steel Co., 523 U.S. at 101)). Therefore, the
Court will first address the CIA’s challenges to the plaintiffs’ standing to bring certain claims.
A. Standing
Article III of the United States Constitution limits the federal judicial power to the
resolution of “Cases” and “Controversies.” U.S. CONST. art. III § 2; see also Ariz. Christian Sch.
Tuition Org. v. Winn, 131 S. Ct. 1436, 1441–42 (2011) (explaining case-or-controversy
requirement). Several doctrines have “grown up to elaborate” the case-or-controversy
requirement, the “most important” of which is standing. See Allen v. Wright, 468 U.S. 737, 750
(1984).
As the Supreme Court has explained, “the irreducible constitutional minimum of standing
contains three elements.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). First, the
plaintiff must have suffered an “injury in fact,” i.e., “an invasion of a legally protected interest
which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or
hypothetical.” Id. (citations and internal quotation marks omitted). Second, there must be “a
causal connection between the injury and the conduct complained of,” i.e., the injury alleged
must be fairly traceable to the challenged action of the defendant. Id. Finally, it must be likely
that the injury will be redressed by a favorable decision. Id. at 561. Moreover, when a plaintiff
seeks prospective declaratory or injunctive relief, allegations of past harms are insufficient. See,
e.g., Dearth v. Holder, 641 F.3d 499, 501 (D.C. Cir. 2011). Rather, when declaratory or
injunctive relief is sought, a plaintiff “must show he is suffering an ongoing injury or faces an
immediate threat of [future] injury.” Id. (citing City of Los Angeles v. Lyons, 461 U.S. 95, 105
(1983)).
21
In these related actions, the CIA raises two issues regarding the plaintiff’s standing to
sue. The first issue relates only to the claims brought in No. 11-443 regarding the Assignment of
Rights Policy. The CIA challenges the plaintiff’s standing to bring both the policy-or-practice
claim itself, as well as the plaintiff’s related claim in Count One of No. 11-443, in which it asks
the Court to order the CIA to process the FOIA request that was assigned to it by JMP. The CIA
argues that “[b]ecause NSC does not have any enforceable rights or interests in the FOIA
requests it references in [its policy-or-practice claim], it cannot establish that the CIA’s alleged
policy has harmed or will harm ‘a legally protected, concrete and particularized interest.’”
Def.’s 443 Mem. at 7 (quoting Lujan, 504 U.S. at 561). The CIA frames this as a matter of
Article III standing, see id., but the premise of the CIA’s argument hinges entirely on the merits
of the plaintiff’s claims that the Assignment is valid and enforceable and that, as a result, the
plaintiff has a statutory right, i.e., a “legally protected and particularized” right, to the
information sought in the assigned FOIA request. The plaintiff’s alleged lack of injury-in-fact
stems directly and exclusively from the fact that its name did not appear on the assigned FOIA
request when that request was filed, 10 and therefore the CIA’s argument presents a question of
statutory, rather than Article III, standing. This means that the Court may resolve both the merits
and jurisdictional issues of this claim at the outset. See, e.g., Chalabi v. Hashemite Kingdom of
Jordan, 543 F.3d 725, 728 (D.C. Cir. 2008) (holding that “Steel Co.’s bar on hypothetical
jurisdiction poses no obstacle” to resolving issues with “both threshold and merits
characteristics” when the threshold issues relate to statutory standing). It follows necessarily that
if the Assignment is valid and enforceable, the plaintiff has standing to bring the claims
articulated in No. 11-443.
10
See Def.’s 443 Mem. at 4–5; Def.’s Reply in Supp. of Def.’s Mot. Dismiss Claims One and Two (“Def.’s 443
Reply”) at 2, NSC I, ECF No. 13 (“On the issue of standing, there is only one contested question before the Court:
whether the FOIA permits the assignments of FOIA rights.”).
22
1. Assignment of Rights to FOIA Requests
“Anyone whose request for specific information has been denied has standing to bring an
action [under the FOIA].” Zivotofsky ex rel. Ari Z. v. Sec’y of State, 444 F.3d 614, 617 (D.C.
Cir. 2006). “The requester is injured-in-fact for standing purposes because he did not get what
the statute entitled him to receive.” Id. at 617–18. The FOIA provides that “each agency, upon
any request for records” that is sufficiently specific and made in accordance with published
procedures for submitting such requests, “shall make the records promptly available to any
person.” 5 U.S.C. § 552(a)(3)(A). An agency’s duties under the FOIA are triggered by a
properly framed request for information, and the agency’s obligations flowing from that request
are with respect to “the requester” of the information. See id. § 552(a)(6)(A)(i) (requiring
agency to notify “the person making [the] request” whether the agency will comply with the
request and “the right of such person to appeal”). The first question raised by this case is
whether the right to information, arising from the denial of a person’s request for such
information, is transferrable to another person after the original request has been made but before
administrative remedies have been exhausted.
Courts have typically not allowed anyone other than the person originally requesting
information under the FOIA to challenge an agency’s action in responding to the request. See
McDonnell v. United States, 4 F.3d 1227, 1238–39 (3d Cir. 1993) (“We think a person whose
name does not appear on a request for records . . . . has no right to receive either the documents,
or notice of an agency decision to withhold the documents.” (citations omitted)); Feinman v.
FBI, 680 F. Supp. 2d 169, 173 (D.D.C. 2010) (“[A] plaintiff whose name does not appear on a
FOIA request lacks standing to challenge its denial . . . .”); see also SAE Prods., Inc. v. FBI, 589
F. Supp. 2d 76, 80 (D.D.C. 2008) (corporate agent requesting information “must adequately
identify that he or she is making the FOIA request on behalf of the corporation in order for the
23
corporation itself to have standing to pursue a FOIA action”); Three Forks Ranch Corp. v.
Bureau of Land Mgmt., 358 F. Supp. 2d 1, 3 (D.D.C. 2005) (“[A]n attorney must adequately
identify that he is making the FOIA request for his client in order for the client to have standing
to pursue a FOIA action.”). This Circuit has, however, held that when a FOIA requester dies
during the pendency of his request, the rights to pursue the FOIA request may survive and pass
to the legal representative of the requester’s estate. See Sinito v. U.S. Dep’t of Justice, 176 F.3d
512, 516–17 (D.C. Cir. 1999) (allowing son of deceased FOIA requester to be substituted as the
plaintiff in FOIA litigation if the lower court determined that he was his father’s legal
representative). Thus, although the D.C. Circuit clearly approved of the transferability of
interests in FOIA requests under certain limited circumstances in Sinito, the only case in this
Circuit thus far to address whether FOIA requests may be assigned to a non-requesting party
after the request has been made, Feinman v. FBI, held that such assignments are not allowed.
Closer examination of these two cases is warranted both to reconcile their holdings and to
ascertain guidance on the question before the Court.
a) Sinito and Feinman
The D.C. Circuit’s decision in Sinito established a limited right to transfer interests in
FOIA requests. That case involved a FOIA request made by a prisoner, seeking information
about the criminal investigation that had resulted in his incarceration. See Sinito, 176 F.3d at
513. The original requester had exhausted his administrative remedies and filed suit in federal
court, but he died in prison before his protracted litigation had been resolved. Id. The late
prisoner’s counsel moved to substitute the prisoner’s son as the plaintiff under Federal Rule of
24
Civil Procedure 25, but the district court denied the motion. 11 Id. The D.C. Circuit reversed,
holding that a FOIA action can survive a requester’s death so long as the party substituting for
the deceased requester “qualifies under Rule 25(a) as a legal representative eligible to continue
the action.” Id.In so holding, the Circuit compared the structure and purpose of the FOIA with other
claims that survive death, such as claims under the Labor-Management Reporting and Disclosure
Act of 1959 (“LMRDA”), see Mallick v. Int’l Bhd. of Elec. Workers, 814 F.2d 674, 677 (D.C.
Cir. 1987), or Bivens actions, see Carlson v. Green, 446 U.S. 14, 24–25 (1980). See Sinito, 176
F.3d at 513–15. The Court also noted that the strong apparent identity of interests between the
proposed substitute party and the original requestor was strong, id. at 515 (“[W]e are dealing
here not with a vast pool of potential FOIA applicants, any of whom might seek to take [the
original requester’s] place in the litigation.”), and that the original requester had “invested time,
and in all likelihood money, in the action,” and therefore he “ha[d] a stake in the legal action
which transcend[ed] that of ‘any person’ who might seek the FOIA document,” id. Finally, the
Court notably drew a favorable comparison between FOIA actions and “action[s] sounding in
property rights . . . seeking money rather than information,” in which “there would be little
doubt” that the action would pass to the claimant’s estate. Id. The Court concluded that, even
though a FOIA request seeks information rather than money, information “in many cases has
equal value with money or tangible property, and there is no reason, absent statutory preclusion,
why it should not similarly survive.” Id.The limits of a FOIA request’s transferability was once again addressed in Feinman,
which involved a FOIA claim brought by a journalist (Feinman) who claimed that she had been
11
Rule 25(a) provides that, when a party to an action dies before a claim is extinguished, “the court may order
substitution of the proper party.” FED R. CIV. P. 25(a). The Rule further provides that “[a] motion for substitution
may be made by any party or by the decedent’s successor or representative.” Id.25
assigned the rights to the request in question by the original requester (Beirne) who was a non-
party to the lawsuit. Feinman, 680 F. Supp. 2d at 170–71. The FBI had denied Beirne’s request
without any right of appeal because the request sought information about a suspected terrorist,
but no proof of the suspected terrorist’s death or a signed privacy waiver had been submitted
with the request. Id. at 171. Several months later, Feinman notified the FBI that Beirne had
“assigned her rights and interests in the FOIA request to Feinman.” Id. (internal quotation marks
omitted). Feinman then sued the FBI, claiming that she had a “legal right under FOIA ‘to obtain
the information she seeks.’” Id. The FBI moved to dismiss on standing grounds because
Feinman’s “name ‘did not appear on the original request.” Id.Although the FBI based its arguments for dismissal solely on Feinman’s lack of statutory
standing, the court held that “strong policy concerns counsel[ed] against permitting assignments”
of FOIA requests. Id. at 175. In particular, the court identified two principal policy
considerations that counseled against assignments. First, the court noted that the identity of a
FOIA requester is highly relevant in determining whether the requester is required to pay fees,
see 5 U.S.C. § 552(a)(4)(A), and whether an agency discloses certain privileged documents to
“‘first-party’ requesters who are the very persons protected by the privilege.” Feinman, 680 F.
Supp. 2d at 175. Thus, the court reasoned, allowing assignment of FOIA requests would
potentially allow assignees to “share” (i.e., free-ride upon) an original requester’s favorable fee
status and would force FOIA administrators to “risk litigation if they subsequently determined
that privacy or similar exemptions should be invoked against the third-party assignee.” Id.Second, the court stated that allowing assignments of FOIA requests would “multiply
opportunities for mistake and mischief” because allowing assignments would potentially allow
an individual to “thwart an adversary’s search for information by claiming falsely to have been
26
assigned a previous requester's FOIA rights,” and would concomitantly place an undue burden
on FOIA administrators to “verify the validity of an assignment by determining whether it
complies with local law and reflects the original requester's actual intent.” Id. at 175–76.
The Feinman court also discussed the Sinito case at length, distinguishing it on two
grounds. The court first noted that, unlike the deceased original requester in Sinito, the original
requester in Feinman (Beirne) “did not invest any time, money, or other effort into pursuing this
litigation” and thus never acquired a stake in the litigation “that might counsel against letting her
investment of litigation resources go to waste.” Id. at 174. The court also noted that, unlike
Sinito, “there is no allegation that [Beirne] was incapable of protecting her rights by suing on her
own behalf, or that the relationship between Beirne and Feinman is such that Feinman would
protect Beirne’s interests if their interests diverge.” Id. at 175. Ultimately, the Feinman court
drew a distinction between a situation “where the plaintiff claims to act on behalf of the original
requester,” as was the case in Sinito, as opposed to “act[ing] in her own right.” Id.b) The Applicability of Feinman
Despite the thoughtful consideration of this issue by the court in Feinman, neither the
policy considerations discussed in Feinman nor the grounds it cited for distinguishing the
holding in Sinito are sufficient to deny the validity of the plaintiff’s assignment in this case.
Starting with the Feinman court’s discussion of Sinito, there are a number of major differences
between Feinman and the instant case that distinguish Feinman’s analysis of Sinito. First and
foremost, this case involves an assignment between two non-profit organizations, rather than an
assignment between individuals. Recognizing that human beings, rather than corporate entities,
perform the actual work on FOIA requests, an organizational interest in a FOIA request may
often be attached to the work of a single employee or small group of employees who, in turn,
may choose to perform their work for more than one organizational principal while a request is
27
pending. Thus, as the plaintiff points out, not honoring the assignability of FOIA requests
between organizations, when the sole reason for the assignment is to keep a request with the
person or persons who have assumed stewardship of that request, could present a large swath of
professional FOIA requesters with a Morton’s fork: either forfeit the freedom to transfer
organizations or forfeit the right to pursue a pending request for information under the FOIA. 12
The former option would needlessly and severely restrict employees’ freedom to change
organizations, while the latter option would undermine the essential purpose of the FOIA.
Relatedly, this case involves two organizations that employed the same individual (Mr.
McClanahan) who had primary responsibility for filing and administratively pursuing the request
at issue. By virtue of the extensive time and effort Mr. McClanahan has already invested in this
request, see Pl.’s 443 Opp’n at 26, it is clear that the plaintiff, through the efforts of its agent, has
acquired a stake in the litigation, unlike the plaintiff in Feinman. Finally, unlike the parties in
Feinman who alleged no relationship to each other whatsoever, the common bonds connecting
JMP and NSC—the two organizations share the same Deputy Executive Director (Bradley
Moss), and the Executive Director of JMP (Mark Zaid) also serves on the plaintiff’s Board of
Advisors, see Pl.’s 443 Opp’n at 24—establishes that their relationship “is such that [NSC]
would protect [JMP’s] interests if their interests diverge.” See Feinman, 680 F. Supp. 2d at 175.
More fundamentally, the Court believes that Feinman did not account fully for the D.C.
Circuit’s acknowledgement in Sinito that a claim for information and a claim for money or
12
See Pl.’s 443 Opp’n at 25–26. The plaintiff offers the example of a journalist who files a FOIA request in her
newspaper’s name and then goes to work for a new newspaper. See id. This situation would apply equally to an
academic who works for multiple institutions of higher learning, a lawyer who works for more than one law firm, or
any number of other situations that could arise in the context of FOIA litigation. Another scenario likely to arise in
FOIA litigation would be that Corporation A requests information (e.g., relating to a government contract that the
corporation did not secure in a bidding process) and, after the request is filed, Corporation A merges with
Corporation B, such that Corporation A ceases to exist. Under the rule articulated in Feinman, the successor
corporation (Corporation B) would have to start the process all over again, even if the request had been outstanding
for several months or years.
28
tangible property are substantially similar in many cases. See Sinito, 176 F.3d at 515. The
logical result of the Circuit’s reasoning in Sinito is that courts should treat FOIA claims like
claims to tangible property unless doing so would contravene public policy or undermine the
“institutional interests” of the judiciary in regulating which parties have standing to sue. See
id. 13 Hence, the Court now turns to the policy considerations raised in Feinman to determine
whether assignability of FOIA requests would be appropriate in this case.
The Court certainly agrees with Feinman that the identity of a FOIA requester is relevant
to certain aspects of the processing of the request, such as the assessment of fees and the
application of exemptions for privilege or privacy concerns. Nevertheless, the Court does not
agree that these concerns warrant a blanket prohibition against the assignment of FOIA requests.
Federal agencies are more than capable of developing efficient procedures to ensure that
assignees do not free-ride on an original requestor’s fee status or improperly seek private or
privileged information. For example, agencies could easily require assignees, as a matter of
standard procedure, to submit any information necessary for the agency to update the aspects of
an assigned request that turn on a requester’s identity. If an agency were to determine from this
information that an assignee was not entitled to a fee waiver that had applied to the original
requester or that an assignee did not enjoy “first party” access to the original requester’s private
or privileged information, the agency could simply adjust its disposition of the request
accordingly.
13
Under general principles of assignment, the fact that Sinito held that FOIA requests survive death could be
considered prima facie support for the proposition that such requests are assignable. This is because survivability of
a right typically indicates that the right is not “purely personal,” and thus generally assignable. See Barnes Coal
Corp. v. Retail Coal Merchants Ass’n, 128 F.2d 645, 649 (4th Cir. 1942) (holding that the “modern rule as to
survivability” is that actions for “personal wrongs . . . die with the person,” whereas actions “affecting property
right’s” survive); RTC Commercial Loan Trust 1995-NP1A v. Winthrop Mgmt., 923 F. Supp. 83, 88 (E.D. Va. 1996)
(“purely personal” rights may not be assigned, such as a plaintiff’s right to invoke federal diversity jurisdiction by
virtue of his domicile); 6A C.J.S. Assignment § 49 (2012) (“A statutory right of action is generally assignable,” but
“a statutory cause of action is not assignable if it is personal to one who holds it and it would not survive his or her
death” (citing Strickland v. Sellers, 78 F. Supp. 274 (N.D. Tex. 1948))).
29
For similar reasons, the Court believes that the potential for an increase in “opportunities
for mistake and mischief” resulting from the recognition of assignment rights is minimal. The
Feinman court may have been correct in noting that, if FOIA administrators were to take an
individual’s claim to an assignment of rights “at face value,” any stranger could step in to
exclude an original requester from the FOIA process against her will. See Feinman, 680 F.
Supp. 2d at 175–76. Even so, nothing would require an agency to take such claims “at face
value.” On the contrary, FOIA administrators should require proper documentation of an
assignment for it to be recognized—most likely a notarized statement from the original requester
that specifically identifies the assignee and the rights assigned. Cf. 31 U.S.C. § 3727(b) (laying
out requirements for assignment of money claims against the United States government).
The Feinman court was nevertheless concerned that this validation process would
constitute an “unreasonable” burden on busy FOIA administrators and that such a burden would
be “greater than the minimal burden on any given assignee to make her own FOIA request.”
Feinman, 680 F. Supp. 2d at 176. That balancing of the equities, however, does not fully
account for the realities of FOIA litigation and the central animating purposes of the FOIA. The
burden imposed by requiring an assignee to file a new request and wait at the back of the FOIA
line is not “minimal” in most cases. Although filing a new FOIA request may often involve a
small amount of effort or resources, it exacts a temporal cost on FOIA requesters that should not
be discounted, considering that the FOIA was intended to promote not merely disclosure, but
timely disclosure. See H.R. Rep. No. 93-876, at 6 (1974) (“[I]nformation is often useful only if it
is timely.”); Payne, 837 F.2d at 494 (“[S]tale information is of little value yet more costly than
fresh information ought to be.”). To cite a relevant example, although the CIA takes an average
of 143 days to respond to “complex” FOIA requests in which information is granted, it can
30
sometimes take the better part of a decade, 14 and in this particular case, over four and a half years
have passed since the date JMP filed the original FOIA request.
Additionally, the burden imposed on FOIA administrators from processing assigned
requests is unlikely to become “unreasonable,” and may in fact be more efficient than the
alternative. See, e.g., Sinito, 176 F.3d at 517 (“[I]t would seem to us more expeditious from the
government’s point of view to allow the [FOIA] appeal to be pursued on the record already made
than to begin the process all over again with a new requestor.”). Agencies can and should shift
the vast majority of any burden to the assignees themselves, requiring them to submit whatever
documentation the agency deems sufficient to validate an assignment, as discussed above.
Additionally, the plaintiff’s representations indicate that federal agencies are already recognizing
FOIA assignments. In particular, the plaintiff documents how several agencies within the United
States intelligence and law enforcement communities, including the Department of Justice
(“DOJ”), the Federal Bureau of Investigation (“FBI”), and the National Geospatial-Intelligence
Agency (“NGA”) have formally recognized the assignment of FOIA requests without any indicia
of “mistake and mischief” or undue burden. See Pl.’s 443 Opp’n at 14–19; id. Exs. A, B, I, K,
M, N. Although the Court is mindful that the CIA may be able to demonstrate that recognizing
assignments would categorically impose an undue burden on its FOIA administrators, that fact is
not apparent from the information available in the instant action. The Court holds that the
plaintiff’s Assignment is valid and enforceable, and therefore the plaintiff has statutory standing
to assert the claims alleged in No. 11-443. See Vt. Agency of Natural Res. v. United States ex rel.
Stevens, 529 U.S. 765, 773 (2000) (“[T]he assignee of a claim has standing to assert the injury in
fact suffered by the assignor.”).
14
See Cent. Intelligence Agency, Freedom of Information Act Annual Report 17, 23 (2011), available at
http://www.foia.cia.gov/txt/annual_report_2011.pdf. (noting at least ten FOIA requests that have been pending for
over seven years).
31
2. Standing to Seek Injunctive and Declaratory Relief
The other standing issue raised by the CIA is with respect to the policy-or-practice claims
in Nos. 11-444 and 11-445. The CIA asserts that the plaintiff lacks standing to assert those
policy-or-practice claims because the plaintiff has not sufficiently alleged a future injury that
would confer standing to seek prospective declaratory and injunctive relief. See Def.’s 444
Mem. at 6–12; Defs.’ 445 Mem. at 6–10. These claims include each cause of action related to:
the Aggregate Data Policy, the Administrative Appeals Policy, the Reasonably Describe Policy,
the Work With Policy, the Cut-Off Date Policy, the Blanket Processing Notes Exemption Policy,
the Blanket Reference Material Exemption Policy, the Glomar Response Policy, the Non-
Provision of Completion Date Policy, the Withheld Document Non-Identification Policy, and the
Document-Level Exemption Policy. See supra Part I.
When a plaintiff seeks either injunctive or declaratory relief, it “must show [it] is
suffering an ongoing injury or faces an immediate threat of injury.” Dearth, 641 F.3d at 501.
When a plaintiff seeks injunctive or declaratory relief specifically for the purpose of challenging
an alleged policy or practice of a government agency, it must also demonstrate that it is
“‘realistically threatened by a repetition of [its] experience.’” Haase v. Sessions, 835 F.2d 902,
910–11 (D.C. Cir. 1987) (quoting Lyons, 461 U.S. at 109). To plead a “threat of repetition,” a
plaintiff must make “more than a nebulous assertion of the existence of a ‘policy,’” and that it is
“likely to be subjected to the policy again.” Id. at 911. This threat must be “real and
immediate,” or, alternatively, “realistic[]” in nature. See Lyons, 461 U.S. at 109; Golden v.
Zwickler, 394 U.S. 103, 109 (1969); see also Fair Emp’t Council of Greater Wash., Inc. v. BMC
Mktg. Corp., 28 F.3d 1268, 1274 (D.C. Cir. 1994) (observing that the standard for judging
likelihood of future injury has been formulated as “likely,” “fairly probable,” and “certainly
impending” and collecting cases).
32
First, in No. 11-444, the CIA half-heartedly argues that the plaintiff has failed to allege
patterns or practices that will continue to be applied in the future. 15 As the plaintiff points out,
“the extent of the Defendant’s argument to the contrary is its talismanic attachment of the word
‘alleged’ to any mention of pattern or practice,” and “with one slight exception, Defendant does
not actually state that any of the alleged patterns or practices do not exist, and in fact spends most
of the second half of its brief defending them.” Pl.’s 444 Opp’n at 8–9. The closest the CIA
comes to contesting the plaintiff’s allegations of ongoing patterns or practices alleged in No. 11-
444 is to argue that the plaintiff “cannot rely on speculation as to how the CIA will react to a
future or hypothetical FOIA request.” Def.’s 444 Mem. at 10–11. Although nearly any
allegation about future conduct involves some measure of conjecture in a literal sense, because
no mere mortal has the ability to see into the future, the plaintiff is only required to put forth a
plausible, “more than . . . nebulous” assertion of the existence of an ongoing pattern or practice
to establish standing, and the plaintiff has done so here. In fact, the plaintiff details, in its
opposition briefs, specific instances of conduct by the CIA that the plaintiff claims are
manifestations of the alleged policies and practices at issue, most of which are also alleged in the
plaintiff’s Complaints. 16 This is more than sufficient to plead the existence of ongoing patterns
or practices for the purpose of establishing standing. See Jerome Stevens Pharmaceuticals, 402
F.3d at 1253 (court may consider “materials outside the pleadings” in deciding a motion to
dismiss for lack of subject-matter jurisdiction).
15
The standard for pleading the existence of a pattern or practice for purposes of establishing standing to seek
prospective relief is not necessarily identical to the standard for pleading a policy or practice to establish the right to
Payne-style relief.
16
See Pl.’s 444 Opp’n at 10–15; Pl.’s Opp’n to Defs.’ Partial Mot. Dismiss (“Pl.’s 445 Opp’n”) at 9–11, NSC III,
ECF No. 18.
33
The CIA focuses its standing argument on the likelihood that the plaintiff will be subject
to these policies in the future. It argues that, because the plaintiff has not alleged that it regularly
submits or intends to submit requests that would implicate the alleged policies or practices, its
claimed future injury is insufficient. See Def.’s 444 Mem. at 9–12; Defs.’ 445 Mem. at 7. The
CIA relies heavily on three FOIA cases from this Court to support its argument: Quick v. U.S.
Department of Commerce, 775 F. Supp. 2d 174 (D.D.C. 2011); Citizens for Responsibility and
Ethics in Washington v. U.S. Department of Homeland Security (“CREW/DHS”), 527 F. Supp.
2d 101 (D.D.C. 2007); and American Historical Association v. National Archives and Records
Administration, 310 F. Supp. 2d 216 (D.D.C. 2004). None of these cases, however, aids the
CIA’s standing argument.
First, with regard to all but one alleged policy or practice, the Quick case is immediately
distinguishable because, in that case, the record at the summary judgment stage was “clear” that,
“even assuming that individuals other than [the plaintiff] may have been subject to the alleged
‘pattern or practice,’” the plaintiff had not been subject to it. Quick, 775 F. Supp. 2d at 187.
Although the policy alleged in Quick was that the agency “produc[ed] records only after a
requester takes the step of commencing a lawsuit,” the record had demonstrated that the agency
“began processing [the plaintiff’s] request long before the commencement of the instant action
and consistently and diligently worked towards completing that request in the absence of
litigation.” Id. Therefore, Quick’s citation to Lujan and its statement that the Supreme Court has
“foreclosed” the possibility of standing when a plaintiff only offers a “passing allegation that he
‘plans to file additional FOIA requests to the [agency] in the future,’” are dicta. This dicta is
itself distinguishable in any event because, as discussed infra, the plaintiff has alleged the
existence of ongoing FOIA requests directed at the CIA. Thus, the Supreme Court’s admonition
34
in Lujan regarding “‘some day’ intentions” is inapplicable to the instant actions because the
hypothetical “some day” has already arrived. See Lujan, 504 U.S. at 564.
Additionally, all three cases cited by the CIA are distinguishable because in all three
cases the plaintiffs never alleged or demonstrated that they had any outstanding FOIA requests
(other than the requests challenged in the litigation) that were likely to implicate the alleged
policies and lead to future injury. See Quick, 775 F. Supp. 2d at 187 (stating that plaintiff
“plan[ned] to file additional FOIA requests to the [defendant] in the future,” though none had
actually been filed); CREW/DHS, 527 F. Supp. 2d at 106 (“Most notably, CREW does not allege
anywhere in its complaint or opposition brief that it has a FOIA request pending with the
DHS . . . .”); American Historical Association, 310 F. Supp. 2d at 228 (“At this stage Plaintiffs
have no outstanding requests for presidential records . . . .”). Recent cases have clarified that,
where a FOIA requester challenges an alleged ongoing policy or practice and can demonstrate
that it has pending claims that are likely to implicate that policy or practice, future injury is
satisfied. See Citizens for Responsibility & Ethics in Wash. v. U.S. Sec. & Exch. Comm’n
(“CREW/SEC”), 858 F. Supp. 2d 51, 60 (D.D.C. 2012) (holding that “outstanding FOIA requests
that involve documents that likely will be unavailable due to the challenged policy” are sufficient
to allege future injury); Citizens for Responsibility & Ethics in Wash. v. Exec. Office of the
President (“CREW/EOP”), 587 F. Supp. 2d 48, 60–61 (D.D.C. 2008) (holding that, because
plaintiffs “each allege that they have FOIA requests for e-mails currently pending with the
[defendant agencies] and intend to file future requests,” their allegations of future injury were
“real and immediate” (quoting Pub. Citizen v. Carlin, 2 F. Supp. 2d 1, 6 (D.D.C. 1997))).
The plaintiff has done just this by stating that, as of July 2011, it had already submitted
fifteen FOIA requests to the CIA since filing the Complaints in these actions. See Pl.’s 444
35
Opp’n at 18; Pl.’s 445 Opp’n at 14. The plaintiff has also displayed a clear intent to continue
filing FOIA requests with the CIA, supported by its consistent habit of filing such requests both
before and after the commencement of this litigation and its stated mission “to obtain records
about national security issues.” See Pl.’s 444 Opp’n at 18; Pl.’s 445 Opp’n at 14. Furthermore,
the Court finds that these ongoing actions and stated intentions to take future action are likely to
implicate the claimed policies and practices at issue because the pending and future requests
appear to be of the same character as the specific requests that form the basis of the plaintiff’s
current claims. See, e.g., Pl.’s 444 Opp’n at 18 (stating that the plaintiff has submitted at least
one other request for “aggregate data”); id. at 19 (stating that the plaintiff has submitted two
requests that were determined to “not reasonably describe the records sought”). Therefore, with
the exception of one policy or practice claim discussed below, the Court concludes that these
actions and stated intentions are sufficiently concrete for the Court to conclude that the plaintiff
has alleged a real and immediate threat of future injury resulting from the alleged policies and
practices of the CIA. Although it is true, as the CIA points out, that “‘[t]he existence of federal
jurisdiction ordinarily depends on the facts as they exist when the complaint is filed,’” Lujan,
504 U.S. at 569 n.4 (emphasis omitted) (quoting Newman-Green, Inc. v. Alfonzo-Larrain, 490
U.S. 826, 830 (1989)), when a plaintiff alleges a future injury, common sense dictates that a
court can and should consider the activities of the plaintiff during and after the time that the
complaint is filed in order to assess the likelihood of such a future injury.
The one exception to this holding is the alleged Non-Provision of Completion Date
Policy. With respect to that alleged policy, the plaintiff claims that the CIA has a policy or
practice of refusing to provide estimated dates of completion for pending FOIA requests. See
FAC ¶¶ 99–116, NSC III. In particular, the plaintiff claims that the CIA consistently refused to
36
supply the plaintiff with estimate dates of completion for its pending FOIA requests “[u]ntil
November 2010,” and that although the CIA instituted a policy in November 2010 to “inform
requesters that the estimated date of completion for any given request is two years from CIA’s
date of receipt,” the CIA has continued to refuse requesters’ demands for estimated dates of
completion. Id. ¶¶ 101–104. The problem, however, is that the plaintiff’s factual allegations, in
support of the claim that the CIA continues to refuse to provide estimated dates of completion
since the promulgation of its November 2010 informal guidance, relate solely to FOIA requests
filed by other parties. The plaintiff cites requests filed by non-parties JMP and Michael
Radvintzky, as well as those non-parties’ post-November 2010 requests for estimated dates of
completion, to support its claim that the CIA continues to refuse to provide estimated dates of
completion. Yet, these allegations fail to allege a cognizable injury against the plaintiff because
“even assuming that individuals other than [the plaintiff] may have been subject to the alleged
‘pattern or practice,’” the plaintiff has not alleged that it has been subject to the post-November
2010 policy that it seeks to challenge. See Quick, 775 F. Supp. 2d at 187. Without an allegation
that the plaintiff itself has been subject to the CIA’s post-November 2010 Non-Provision of
Completion Date Policy, the plaintiff has no standing to bring its claim challenging that policy.
Therefore, the causes of action related to the Non-Provision of Completion Date Policy (Counts
Fifteen, Sixteen, and Seventeen of the First Amended Complaint in No. 11-445) will be
dismissed for lack of subject-matter jurisdiction.
B. Mandamus and Administrative Procedure Act Claims
Having addressed all of the CIA’s standing arguments, the Court will now address the
CIA’s arguments for dismissing all of the remaining policy-or-practice claims summarized above
under Rules 12(b)(1) and/or 12(b)(6).
37
As discussed above, the plaintiff has elected to seek relief from a number of the alleged
policies or practices of the CIA under a variety of legal theories. In addition to the Assignment
of Rights Policy and Non-Provision of Completion Date Policy addressed and resolved above,
the plaintiff claims ten separate policies or practices that it says violate the FOIA. The plaintiff
seeks relief from each of these alleged policies or practices under the FOIA itself, but it also
seeks relief from four of the policies or practices under the Mandamus Act, 17 and it seeks relief
from seven of the policies or practices under the APA. 18 The plaintiff concedes that, because
these claims are duplicative of one another, to the extent it is granted relief at all, such relief will
be pursuant to only one of these statutes. See Pl.’s 444 Opp’n at 7; Pl.’s 445 Opp’n at 7. The
Court will first address the viability of the plaintiff’s APA claims and then will discuss the
viability of the plaintiff’s Mandamus Act claims.
1. Administrative Procedure Act Claims
The CIA moves to dismiss the plaintiff’s seven remaining APA claims on the basis that
the Court lacks subject-matter jurisdiction over those claims. These are the APA claims related
to: the Aggregate Data Policy (Count Three of No. 11-444), the Administrative Appeals Policy
(Count Six of No. 11-444), the Reasonably Describe Policy (Count Twelve of No. 11-444), the
Work With Policy (Count Fifteen of No. 11-444), the Withheld Document Non-Identification
Policy (Count Nineteen of No. 11-445), the Document-Level Exemption Policy (Count Twenty-
One of No. 11-445), and the APA component of the challenge to the Glomar Response Policy
17
The four policies or practices challenged under the Mandamus Act are: the Aggregate Data Policy, the
Administrative Appeals Policy, the Reasonably Describe Policy, and the Work With Policy.
18
The seven policies or practices challenged under the APA include the same four policies or practices challenged
under the Mandamus Act, as well as: the Withheld Document Non-Identification Policy, the Document-Level
Exemption Policy, and the APA component of the “FOIA/APA” challenge to the Glomar Response Policy.
38
(Count Fourteen of No. 11-445). 19 The CIA argues that the APA’s waiver of sovereign
immunity does not apply to the plaintiff’s APA causes of action because the availability of a
remedy for the plaintiff’s policy-or-practice claims under the FOIA and Payne means that the
plaintiff’s corresponding APA claims are not claims “for which there is no other adequate
remedy.” See Def.’s 444 Mem. at 3–4 (citing 5 U.S.C. §§ 702, 704); Defs.’ 445 Mem. at 3–4
(same). According to the CIA, because “[a]ll . . . of [the plaintiff’s] APA claims, and the APA
component of its ‘FOIA/APA’ claim, are based on alleged violations of the FOIA and seek relief
available under the FOIA,” the APA claims should be dismissed. Defs.’ 445 Mem. at 4. The
plaintiff responds that the CIA’s “statement that the mere fact that an APA claim ‘is premised on
a violation of FOIA’ is automatically fatal to that claim is fundamentally incorrect” because
“FOIA does not provide an alternative remedy in all cases.” Pl.’s 444 Opp’n at 6; Pl.’s 445
Opp’n at 6. The plaintiff thus argues that if the Court were to “find that the alleged pattern or
practice does not fit squarely within the four corners of FOIA’s remedies,” that would “remove it
from Payne-style declaratory relief,” and therefore no other adequate remedy would be available.
Pl.’s 444 Opp’n at 7; Pl.’s 445 Opp’n at 7.
The CIA is correct that, where a plaintiff claims that an agency has wrongfully withheld
agency records in connection with discrete FOIA requests, an APA claim seeking compelled
disclosure of the withheld records is precluded. See, e.g., Kenney v. U.S. Dep’t of Justice, 603 F.
Supp. 2d 184, 190 (D.D.C 2009). This is because the FOIA grants federal courts jurisdiction 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). The D.C. Circuit
in Payne, however, held that “[t]he FOIA imposes no limits on courts’ equitable powers in
19
Count Fourteen of No. 11-445, challenging the CIA’s alleged Glomar Response Policy is captioned as a
“FOIA/APA” cause of action, so the Court will only address the APA element of that hybrid claim in this section of
the opinion. See FAC at 14, NSC III.
39
enforcing its terms,” and where an agency’s actions in response to a FOIA request “violate the
intent and purpose of the FOIA . . . the courts have a duty to prevent these abuses.” Payne, 837
F.2d at 494; see also Wash. Research Project, Inc. v. Dep’t of Health, Educ. & Welfare, 504 F.2d
238, 252 (D.C. Cir. 1974) (“One can imagine circumstances, such as where an agency simply
refuses to conform its action to the known requirements of the [FOIA] in order to deter requests
for information by repetitive litigation, that would tempt a court to use any or all of the usual
weapons in the arsenal of equity.”(internal quotation marks omitted)). Therefore, although the
language of the FOIA could be read strictly to limit the equitable powers of federal courts to
enjoining the agency from withholding records and ordering production of improperly withheld
records, the D.C. Circuit and the Supreme Court have interpreted those equitable powers more
broadly. See Renegotiation Bd. v. Bannercraft Clothing Co., 415 U.S. 1, 19–20 (1974) (holding
that “[t]he broad language of the FOIA,” among other factors, demonstrate that “there is little to
suggest, despite the Act’s primary purpose, that Congress sought to limit the inherent powers of
an equity court”).
The scope of the equitable powers available under the FOIA is nevertheless still unclear
because the D.C. Circuit has yet to specify the breadth of Payne-style relief. The only concrete
guidance has been from Payne itself, which stated that FOIA policy-or-practice claims extend to
any “failure to abide by the terms of the FOIA.” Payne, 837 F.2d at 491. This Court has
previously held that “where a plaintiff challenges an alleged pattern and practice of violating
procedural requirements of FOIA in connection with the processing of the plaintiff’s FOIA
requests[,] the Court has the power under FOIA and Payne to provide the requested declaratory
and injunctive remedies.” Muttitt v. U.S. Cent. Command, 813 F. Supp. 2d 221, 229 (D.D.C.
2011); see also Feinman v. FBI, 713 F. Supp. 2d 70, 78 (D.D.C. 2010) (dismissing APA policy-
40
or-practice claim because “the relief available under FOIA is of the ‘same genre’ as the relief
available under the APA” (quoting Garcia v. Vilsack, 563 F.3d 519, 522 (D.C. Cir. 2009))).
Thus, under Muttitt, the Court has the power to enjoin a FOIA procedural violation under the
equitable jurisdiction of the FOIA itself so long as that violation was “in connection with the
processing of the plaintiff’s FOIA requests.” Muttitt, 813 F. Supp. 2d at 229. Indeed, this Court
stated in Muttitt that, even though a policy or practice “would not necessarily result directly in
[the] withholding [of agency records],” it nevertheless falls within the Court’s broad equitable
powers under the FOIA. Id. at 228–29 & n.4.
This conclusion is supported by the fact that it is well settled that courts have certain
equitable powers under the FOIA that extend beyond the literal bounds of 5 U.S.C.
§ 552(a)(4)(B). Most notably, courts clearly have the power to order an agency to re-run a
search for records where that search was not “reasonably calculated to uncover all relevant
documents.’” See Morley v. CIA, 508 F.3d 1108, 1114 (D.C. Cir. 2007) (quoting Weisberg v.
U.S. Dep’t of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983)). Although ordering an agency to
conduct an adequate search may indirectly lead to the production of responsive records, see
Maydak v. U.S. Dep’t of Justice, 254 F. Supp. 2d 23, 44 (D.D.C 2003) (holding that “[a]n
improper withholding may arise from an agency’s failure to conduct an adequate search”
(emphasis added)), such injunctive relief does not necessarily “enjoin the agency from
withholding agency records” or “order the production of any agency records.” See 5 U.S.C.
§ 552(a)(4)(B). Similarly, remedying procedural violations of the FOIA may not necessarily
lead to the production of withheld responsive records, yet it is concomitantly reasonable to
interpret the jurisdictional grant in 5 U.S.C. § 552(a)(4)(B) to include the power to enjoin
procedural violations of the FOIA when they are connected to specific requests for records.
41
As in Muttitt, for each of the remaining policy-or-practice claims in the instant cases the
plaintiff alleges that the CIA has applied the policy or practice to one or more specific FOIA
requests made by the plaintiff. Hence, all of the alleged policies or practices challenged in the
instant actions are “in connection with the processing of the plaintiff’s FOIA requests.” 20
Muttitt, 813 F. Supp. 2d at 229. Additionally, all but one of the policy-or-practice claims alleges
a violation of “procedural requirements of the FOIA.” The only exception are the claims related
to the Work With Policy (Counts Fourteen, Fifteen, and Sixteen of No. 11-444), which allege a
policy or practice of the CIA violating its own FOIA regulation, 32 C.F.R. § 1900.12(c), not the
procedural requirements of the FOIA itself. See FAC ¶¶ 71–86, NSC II. Therefore, the Court
“has the power under FOIA and Payne to provide the requested declaratory and injunctive
remedies” with respect to all of the policy-or-practice claims except the claims related to the
Work With Policy, which are properly addressed under the APA. Muttitt, 813 F. Supp. 2d at
229. As a result of this conclusion, APA relief is foreclosed with respect to the Aggregate Data
Policy, the Administrative Appeals Policy, the Reasonably Describe Policy, the Withheld
Document Non-Identification Policy, the Document-Level Exemption Policy, and the Glomar
Response Policy because the FOIA itself can provide the plaintiff with an adequate equitable
remedy, assuming of course that the plaintiff has stated a claim for relief with respect to each of
those policies. Therefore, all of the plaintiff’s APA claims related to those policies—Counts
20
The claims related to the Reasonably Describe Policy (Counts Eleven, Twelve, and Thirteen of No. 11-444),
however, could be considered as a more general challenge to agency action. Those claims challenge the CIA’s
formal interpretation of the term “reasonably describe” and allege that interpretation is “significantly and
consistently broader than is allowed by FOIA.” See FAC ¶¶ 58, 63, NSC II. This sort of across-the-board challenge
to an agency’s formal interpretation of a statute is “typically seen in litigation under the [APA], as the APA
expressly provides for such judicial review.” Bensman v. Nat’l Park Serv., 806 F. Supp. 2d 31, 41 (D.D.C 2011).
Nevertheless, although the plaintiff’s challenge to the Reasonably Describe Policy may have broader application, it
still challenges a policy that is allegedly being applied “in connection with the processing of the plaintiff’s FOIA
requests” and that is allegedly “violating procedural requirements of FOIA.” Muttitt, 813 F. Supp. 2d at 229. Thus,
the Court is satisfied that this sort of challenge is within the Court’s jurisdiction under the FOIA, even though it
would also clearly fall within the Court’s jurisdiction under the APA.
42
Three, Six, and Twelve of No. 11-444, Counts Nineteen and Twenty-One of No. 11-445, and the
APA component of the “FOIA/APA” claim in Count Fourteen of No. 11-445—will be dismissed
for lack of subject-matter jurisdiction. Likewise, because the claims related to the Work With
Policy challenge conduct outside the Court’s FOIA jurisdiction, the Court does not have the
power to remedy the FOIA claim related to that policy (Count Fourteen of No. 11-444). Hence,
Count Fourteen of No. 11-444 will also be dismissed for lack of subject-matter jurisdiction.
2. Mandamus Act Claims
The CIA also moves to dismiss the plaintiff’s four remaining Mandamus Act claims on
the grounds that the plaintiff has failed to plead a claim for relief under that statute and that the
Court lacks subject-matter jurisdiction over those claims. See Def.’s 444 Mem. at 5–6; Defs.’
445 Mem. at 5–6. This includes the Mandamus Act claims related to the Aggregate Data Policy
(Count Four of No. 11-444), the Administrative Appeals Policy (Count Seven of No. 11-444),
the Reasonably Describe Policy (Count Thirteen of No. 11-444), and the Work With Policy
(Count Sixteen of No. 11-444). To adequately plead a claim for relief under the Mandamus Act,
28 U.S.C. § 1361, a plaintiff must allege that: (1) the plaintiff has a clear right to relief; (2) the
defendant has a clear duty to act; and (3) there is no other adequate remedy available to the
plaintiff. See In re Medicare Reimbursement Litig., 414 F.3d 7, 10 (D.C. Cir. 2005). 21 The D.C.
Circuit has narrowly construed jurisdiction under the Mandamus Act, holding that mandamus-
style relief 22 is “‘drastic’; it is available only in ‘extraordinary situations’; it is hardly ever
granted; those invoking the court’s mandamus jurisdiction must have a ‘clear and indisputable’
21
The D.C. Circuit has held that, to the extent the court must determine whether a “clear and compelling” duty
exists, “mandamus jurisdiction under § 1361 merges with the merits” because if no “clear and compelling” duty
exists, the claim fails and the court also has no jurisdiction over the claim under 28 U.S.C. § 1361. See In re
Cheney, 406 F.3d 723, 729 (D.C. Cir. 2005) (en banc).
22
The Court refers to it as “mandamus-style relief” because “Rule 81(b) of the Federal Rules of Civil Procedure
long ago abolished the writ of mandamus in the district courts,” and therefore the Mandamus Act “confers
jurisdiction on the district courts over actions ‘in the nature of mandamus.” In re Cheney, 406 F.3d at 728–29.
43
right to relief; and even if the plaintiff overcomes all these hurdles, whether mandamus relief
should issue is discretionary.” In re Cheney, 406 F.3d at 729; accord Allied Chem. Corp. v.
Daiflon, Inc., 449 U.S. 33, 34 (1980) (“[T]he remedy of mandamus is a drastic one, to be
invoked only in extraordinary situations.”). Mandamus-style relief is precluded when an
adequate alternative remedy exists, even where that alternative remedy is less efficient or less
effective than mandamus relief would be. See Fornaro v. James, 416 F.3d 63, 69–70 (D.C. Cir.
2005); Council for the Blind of Del. Cnty. Valley, Inc. v. Regan, 709 F.2d 1521, 1532–33 (D.C.
Cir. 1983).
The CIA argues that the plaintiff has failed to plead any of the three required elements for
any of its claims under the Mandamus Act. See Def.’s 444 Mem. at 5–6; Defs.’ 445 Mem. at 5–
6. The plaintiff’s only response is to argue that, although its Mandamus Act claims are
duplicative of its FOIA and APA claims, “this is not a fatal flaw in and of itself.” Pl.’s 444
Opp’n at 4; Pl.’s 445 Opp’n at 4. In support of this argument, the plaintiff cites two cases from
this Court, which both refused to dismiss mandamus claims at the motion to dismiss stage. See
Pl.’s 444 Opp’n at 5 (citing Judicial Watch, Inc. v. Nat’l Energy Policy Dev. Grp., 219 F. Supp.
2d 20, 44 (D.D.C 2002) and CREW/EOP, 587 F. Supp. 2d at 63); Pl.’s 445 Opp’n at 5 (same).
Even assuming that the plaintiff is correct that the duplicity of its mandamus claims “is not a
fatal flaw in and of itself,” that does not address whether the plaintiff has adequately alleged
mandamus claims in the first place.
The plaintiff does not contest that it has failed to satisfy the first two elements of a
Mandamus Act claim: a clear right to relief and a clear duty to act. Rather, the plaintiff only
addresses the CIA’s arguments with respect to subject-matter jurisdiction and does not discuss
the CIA’s argument that the plaintiff has failed to state claims for mandamus-style relief. See
44
Pl.’s 444 Opp’n at 4; Pl.’s 445 Opp’n at 4. 23 Indeed, the plaintiff’s citation to Judicial Watch,
Inc. v. National Energy Policy Development Group presumes that the plaintiff has already
pleaded claims for mandamus-style relief. Although that case held that “it would be premature
and inappropriate to determine whether the relief of mandamus will or will not issue” at the
motion to dismiss stage, that holding was still premised on the determination “that plaintiffs have
stated a claim for relief under the mandamus statute.” See 219 F. Supp. 2d at 44. The plaintiff’s
mandamus claims in the instant actions may be dismissed on this ground alone because the Court
may treat the plaintiff’s failure to oppose the defendant’s 12(b)(6) arguments as a decision to
concede those arguments. See Shankar v. ACS-GSI, 258 F. App’x 344, 345 (D.C. Cir. 2007)
(holding that plaintiff conceded the merits of an issue when he “did not respond in any way to
defendant’s argument” on that issue in his opposition before the district court (citing Local Civil
Rule 7(b))); Buggs v. Powell, 293 F. Supp. 2d 135, 141 (D.D.C. 2003) (“It is understood in this
Circuit that when a plaintiff files an opposition to a dispositive motion and addresses only certain
arguments raised by the defendant, a court may treat those arguments that the plaintiff failed to
address as conceded.” (citing FDIC v. Bender, 127 F.3d 58, 67–68 (D.C. Cir. 1997))).
Even if the plaintiff had not conceded its failure to plead claims for relief under the
Mandamus Act, however, the mandamus claims would still be appropriately dismissed because
the plaintiff’s FOIA claims would provide an adequate remedy for all of the policies or practices
for which the plaintiff seeks relief under the Mandamus Act. The FOIA itself is the source of
what the plaintiff views as the CIA’s clear duties to act and the plaintiff’s clear rights to relief,
which underlie the plaintiff’s mandamus claims. See FAC ¶¶ 22, 25, 37, 39, 67, 69, 83, NSC II;
FAC ¶¶ 113, 115, NSC III. Thus, to the extent a remedy would be available to the plaintiff under
23
The CIA made it very clear in its motions to dismiss that it was seeking dismissal of the plaintiff’s mandamus
claims under both Rule 12(b)(1) and Rule 12(b)(6). See Def.’s 444 Mem. at 5–6; Defs.’ 445 Mem. at 5–6.
45
the Mandamus Act, an identical and adequate injunctive remedy would be available to the
plaintiff under the FOIA. See Payne, 837 F.2d at 494 (“The FOIA imposes no limits on courts’
equitable powers in enforcing its terms.”); Muttitt, 813 F. Supp. 2d at 228–29. Likewise to the
extent that a remedy is unavailable to the plaintiff under the FOIA for any particular policy or
practice, a remedy would be equally unavailable under the Mandamus Act. It necessarily
follows that the plaintiff cannot plead any facts that would show that there is no other adequate
remedy available, and therefore all of the plaintiff’s remaining Mandamus Act claims—Counts
Four, Seven, Thirteen, and Sixteen of No. 11-444—will be dismissed.
C. Remaining Policy-or-Practice Claims
With the universe of remaining policy-or-practice claims now narrowed to the nine
causes of action alleged under the FOIA itself and the one cause of action under the APA, 24 the
Court will now discuss whether the plaintiff has succeeded in pleading a claim for relief for any
of those alleged policies or practices. The CIA moves to dismiss each of these policy-or-practice
claims for failure to state a claim under Rule 12(b)(6). See Def.’s 444 Mem. at 12–20; Defs.’
445 Mem. at 10–19.
1. Aggregate Data Policy
The plaintiff challenges the CIA’s alleged Aggregate Data Policy (i.e., refusing to
process FOIA requests that seek “aggregate data”) in Count Two of No. 11-444. See FAC ¶¶ 12,
14, NSC II. The requests for what the plaintiff terms “aggregate data” have sought database
listings sorted by various criteria. In particular, the plaintiff points to two examples of
“aggregate data” requests that the CIA has refused to process: (1) a request for “database listings
of all FOIA requesters from Fiscal Years 2008–2010 according to the fee categories to which
24
Once again, these ten policies or practices exclude Assignment of Rights Policy discussed above. See discussion
supra Part III.A.1.
46
CIA assigned them,” and (2) a request for “a record that would indicate the ten individuals
responsible for the most FOIA requests submitted (each) in Fiscal Years 2008, 2009, and 2010.”
Id. ¶¶ 6, 42. The CIA refused to process these requests either on the grounds that its record
systems were not configured in a way that would allow it to perform an adequate search without
an unreasonable effort or on the grounds that the FOIA does not require federal agencies to
create records, collect information, conduct research, analyze data, or conduct unreasonable
searches. See Lutz Decl. Exs. E–H, L.
The CIA argues that the plaintiff’s challenge to the alleged Aggregate Data Policy should
be dismissed for failure to state a claim because, assuming that such a policy exists, it would not
violate the FOIA. See Def.’s 444 Mem. at 13–14. The CIA maintains that processing requests
for database listings would (a) require it to create new records, as opposed to merely producing
preexisting records and/or (b) require it to conduct research, as opposed to merely performing a
search. Id.; Reply in Supp. Def.’s Partial Mot. Dismiss Pl.’s First Am. Compl. (“Def.’s 444
Reply”) at 14, NSC II, ECF No. 18. The CIA further argues that, because the FOIA does not
require agencies to create new records or conduct research, a policy of refusing to do so does not
violate the FOIA. Def.’s 444 Reply at 14. The plaintiff responds, however, that the act of
sorting a database by certain criteria (e.g., fee category of requester) and providing a listing of
that database so sorted does not constitute creating new records or conducting research—rather,
it merely constitutes performing a search and producing the results of that search. See Pl.’s 444
Opp’n at 21.
The CIA is correct, and the plaintiff appears to agree, that “the FOIA imposes no duty on
the agency to create records.” Forsham v. Harris, 445 U.S. 169, 186 (1980) (citing NLRB v.
Sears, Roebuck & Co., 421 U.S. 132, 161–62 (1975)); accord Yeager v. DEA, 678 F.2d 315, 321
47
(D.C. Cir. 1982) (“It is well settled that an agency is not required by FOIA to create a document
that does not exist in order to satisfy a request.”). The FOIA also does not require agencies to
conduct research by “answer[ing] questions disguised as a FOIA request.” Hudgins v. IRS, 620
F. Supp. 19, 21 (D.D.C. 1985), aff’d mem., 808 F.2d 137 (D.C. Cir. 1987); see also Frank v. U.S.
Dep’t of Justice, 941 F. Supp. 4, 5 (1996) (holding that agencies are “not required, by FOIA or
by any other statute, to dig out all the information that might exist, in whatever form or place it
might be found, and to create a document that answers plaintiff’s question”). The dispute with
respect to the alleged Aggregate Data Policy, however, is whether the plaintiff’s FOIA requests
for “aggregate data” require the CIA to create new records or conduct research to answer
questions.
The 1996 Electronic FOIA Amendments (“E-FOIA Amendments”) provide some useful
context in understanding what is required of agencies in running searches in an era when
“agencies increasingly use computers to conduct agency business and to store publicly valuable
agency records and information.” Pub. L. No. 104-231, § 2(a)(5), 110 Stat. 3048, 3048 (1996).
The E-FOIA Amendments were intended to “maximize the usefulness of agency records and
information collected, maintained, used, retained, and disseminated by the Federal Government.”
Id. § 2(b)(4), 110 Stat. at 3049. Congress provided in the Amendments that, “[g]overnment
agencies should use new technology to enhance public access to agency records and
information.” Id. § 2(a)(6), 110 Stat. at 3048. Thus, the Amendments expanded the definition of
a “record” to include “any information that would be an agency record . . . when maintained by
an agency in any format, including an electronic format,” id. § 3, 110 Stat. at 3049 (emphasis
added), and they expanded the definition of “search” to mean “to review, manually or by
automated means,” id. § 5, 110 Stat. at 3050 (emphasis added). The Amendments also added the
48
provision that, “[i]n responding . . . to a request for records, an agency shall make reasonable
efforts to search for the records in electronic form or format, except when such efforts would
significantly interfere with the operation of the agency’s automated information system.” Id. In
light of these changes to the FOIA regime, “[e]lectronic database searches are . . . not regarded
as involving the creation of new records.” People for the Am. Way Found. v. U.S. Dep’t of
Justice, 451 F. Supp. 2d 6, 14 (D.D.C. 2006) (internal quotation marks omitted); see also H.R.
Rep. 104-795, at 22 (1996) (“Computer records found in a database rather than a file cabinet may
require the application of codes or some form of programming to retrieve the information. . . .
[T]he review of computerized records would not amount to the creation of records.”).
In responding to a FOIA request for “aggregate data,” therefore, an agency need not
create a new database or a reorganize its method of archiving data, but if the agency already
stores records in an electronic database, searching that database does not involve the creation of a
new record. Likewise, sorting a pre-existing database of information to make information
intelligible does not involve the creation of a new record because, as Congress noted in the
legislative history to the E-FOIA Amendments, “[c]omputer records found in a database rather
than a file cabinet may require the application of codes or some form of programming to retrieve
the information.” H.R. Rep. 104-795, at 22. Sorting a database by a particular data field (e.g.,
date, category, title) is essentially “the application of codes or some form of programming,” and
thus does not involve creating new records or conducting research—it is just another form of
searching that is within the scope of an agency’s duties in responding to FOIA requests.
Nevertheless, the distinction between searching and either performing research or
creating records remains somewhat muddled. In particular, there is a tension between the well-
settled prohibition against requiring agencies to conduct research and create records, and the
49
policy of the E-FOIA Amendments to bring the contents of electronic databases within the
FOIA’s reach. When points of data are stored in a database, that data can often be manipulated
in myriad ways, only some of which are likely to qualify as mere “searching” within the meaning
of the FOIA. See, e.g., Labella v. FBI, No. 11-CV-0023, 2012 WL 948567 at *12 n.12
(E.D.N.Y. Mar. 19, 2012) (observing that “FOIA did not obligate the [defendant] to provide [the
plaintiff] with ‘aggregate data’” where the plaintiff sought “‘aggregate data’ related to the victim
class and distinct subgroups of” the Supplemental Victimization Survey to the National Crime
Victimization Survey). Although the E-FOIA Amendments condone “the application of codes or
some form of programming to retrieve the information” contained in an electronic database,
neither the text of the statute nor the legislative history provides any guidance on when the
manipulation of data points in an electronic database through “the application of codes or some
form of programming” crosses the all-important line between searching a database, on the one
hand, and either creating a record or conducting research in a database on the other.
With this tension in mind, although the act of searching or sorting an electronic database
is clearly not the creation of a record under the FOIA, the question remains whether producing a
listing of database search results involves the creation of a record. First, it is important to note
that it is not unprecedented for a federal agency to produce entire fields of data from particular
electronic databases in response to a FOIA request, see, e.g., Long v. U.S. Dep’t of Justice, 450
F. Supp. 2d 42, 48 (D.D.C. 2006) (DOJ produced several fields from “the EOUSA’s central case
management data under the FOIA”), and such requests could certainly be considered requests for
“aggregate data.” Producing a listing or index of records, however, is different than producing
particular points of data (i.e., the records themselves). This is because a particular listing or
index of the contents of a database would not necessarily have existed prior to a given FOIA
50
request. For example, a request seeking “a database listing of the first 100 FOIA requests filed
in Fiscal Year 2012,” may require the creation of a new record because the record being
requested—whether produced in the format of a printout, a “screen shot,” or something similar—
25
is not necessarily something “that an agency has in fact chosen to create and retain.” Yeager,
678 F.2d at 321. The same would be true of paper, rather than electronic, records. For example,
if a FOIA request sought “an inventory of all non-electronic records created in 1962 regarding
the Cuban Missile Crisis,” an agency need not create an inventory if one did not already exist,
though the agency would need to release any such non-electronic records themselves if they were
requested and were not exempt from disclosure. Therefore, a FOIA request for a listing or index
of a database’s contents that does not seek the contents of the database, but instead essentially
seeks information about those contents, is a request that requires the creation of a new record,
insofar as the agency has not previously created and retained such a listing or index. 26 See
People for the American Way, 451 F. Supp. 2d at 15 (producing a “list of records returned from
[a database] search” is “something that FOIA does not mandate” because “the list was not
previously created or obtained by the agency” and “an order that defendant produce such a list
would be tantamount to requiring the defendant to create an agency record”).
25
These were the sort of records sought by the plaintiff in its requests for “aggregate data.” See Pl.’s 444 Opp’n Ex.
A at 1 (seeking “a list, index, printout, or similar document”); id. Ex. B at 1, 4, 7, 10 (seeking “database listing[s]”);
id. Ex. E at 53 (seeking “an index or comparable list”). The first two of these requests were incorporated by
reference in the First Amended Complaint. See FAC ¶¶ 6, 42, NSC II.
26
Similarly, requests for aggregate data, even if they seek data itself rather than a database listing or index, may
nevertheless require an agency to perform research in response to a FOIA request—something courts have long held
agencies are also not required to do. See, e.g., Hudgins, 620 F. Supp. at 21. Congress contemplated this possibility
in the E-FOIA Amendments by stating that when an agency responds to a FOIA request, it “shall make reasonable
efforts to search for the records in electronic form or format, except when such efforts would significantly interfere
with the operation of the agency’s automated information system.” Pub. L. No. 104-231, § 5, 110 Stat. at 3050.
Thus, if a FOIA request for “aggregate data” would require an unreasonably burdensome electronic search within
the confines of an agency’s automated information system, an agency need not conduct the search. See, e.g., Wolf v.
CIA, 569 F. Supp. 2d 1, 8 (D.D.C. 2008) (agreeing that the CIA was not required to search its microfilm files
“because such a search would be unduly burdensome and exceed the requirements of FOIA”).
51
Even so, deciding whether or not the plaintiff has stated a claim for relief in its challenge
to the CIA’s alleged Aggregate Data Policy (Count Two of No. 11-444) is an exceedingly close
call because the phrase used by the plaintiff in its First Amended Complaint—“aggregate
data”—is ambiguous. Whether or not the claim can survive depends upon whether, in light of
the specific examples of “aggregate data” requests provided by the plaintiff in its First Amended
Complaint (i.e., Counts One and Eight), it would be reasonable to construe the plaintiff’s
allegations to include requests for aggregate data itself, as opposed to including only requests for
“database listings” or “printouts” of such listings. The plaintiff seems to contend that a request
for a “database listing” or “printout” of such a listing is a proper FOIA request on its face, see
Pl.’s 444 Opp’n at 20–21, which is incorrect, as the Court’s discussion above makes clear. One
of the two specific FOIA requests that the plaintiff alleges as an example of an “aggregate data”
request, however, sought, in the alternative, the underlying records themselves, see id. Ex. A at 2
(seeking, in the alternative, “[a]ll FOIA request letters submitted to the CIA for each year”),
which would not require the creation of a record. 27 Even so, this single request is insufficient to
allege the existence of a policy or practice of the CIA refusing to produce the contents of an
electronic database because it could just as easily have been an isolated incident. See Iqbal, 556
U.S. at 678 (complaint must plead facts that are more than “‘merely consistent with’ a
defendant’s liability”). Therefore, the plaintiff has failed to state claim for relief challenging the
CIA’s alleged Aggregate Data Policy, and Count Two in No. 11-444 will be dismissed.
The Court pauses, however, to note the perverse practical consequences of the CIA’s
choice to refuse to provide database listings in response to FOIA requests. The FOIA requires
agencies to disclose all non-exempt data points that it retains in electronic databases, see, e.g.,
27
The FOIA request that contains this alternative request is incorporated by reference in the First Amended
Complaint. See FAC ¶ 42, NSC II.
52
Long, 450 F. Supp. 2d at 48, and thus although the CIA may not be required to produce an index
or database listing in response to a FOIA request, it can be required to hand over the contents of
entire databases of information to the extent those contents are not exempt from disclosure. 28
Although producing the contents of a database would likely involve the same search burden upon
an agency as producing a database listing, the production of a database listing would entail a
substantially lighter production burden upon the agency. Despite the fact that the CIA can
continue to escape the production of database listings under the FOIA if it wishes, the CIA may
nevertheless find it more efficient to begin producing such database listings upon request
because failing to do so may prompt requesters to seek the reams of data underlying such listings
instead. 29
2. Reasonably Describe Policy
The plaintiff challenges the CIA’s alleged Resonably Describe policy in Count Eleven of
No. 11-444, claiming that the CIA regularly refuses to process FOIA requests that the CIA
deems not to “reasonably describe” the records sought. See FAC ¶¶ 56–61, NSC II. The
plaintiff claims that this behavior constitutes a policy or practice of applying a definition of the
FOIA’s “reasonably describes” requirement that “is significantly and consistently broader than is
allowed by FOIA.” FAC ¶ 58, NSC II. In the same vein, the plaintiff alleges that “[i]n a
majority of these cases, CIA has cited the configuration of its records systems as a disqualifying
factor.” Id. Ultimately, the plaintiff takes issue with two aspects of the CIA’s interpretation of
28
In fact, the Executive Office for the U.S. Attorneys “regularly releases national caseload statistical data in
response to monthly requests under the Freedom of Information and Privacy Acts.” The United States Attorneys
Office—FOIA/PA Reading Room, http://www.justice.gov/usao/reading_room/data/CaseStats.htm (last visited Oct.
17, 2012). The CIA could potentially be subject to similar monthly reporting of its database of FOIA request
information.
29
It also may prompt Congress to supplement current annual FOIA reporting requirements to include aggregate
data, such as the total number of FOIA requesters organized by fee category or the ten most prolific FOIA requesters
to an agency in a given fiscal year. See 5 U.S.C. § 552(e)(1).
53
the FOIA’s “reasonably describes” requirement. First, the plaintiff claims that the CIA has
inappropriately restricted the term “reasonably describe” by requiring requests to be couched “in
terms of the request’s compatibility with existing indexing systems.” Pl.’s 444 Opp’n at 23.
Second, the plaintiff claims that the defendant has adopted an overbroad interpretation of terms
like “relating to” and “pertaining to” in concluding that those terms render descriptions
unreasonably vague. See Pl.’s Opp’n to Def.’s Mot. Summ. J. (“Pl.’s 444 Summ. J. Opp’n”) at
19, NSC II, ECF No. 26. 30
Beginning with the first aspect, the CIA argues that the plaintiff’s challenge to the
Reasonably Describe Policy should be dismissed for failure to state a claim because determining
whether a request reasonably describes the records sought “depends both on the nature of the
request and the type of records system an agency has.” Def.’s 444 Mem. at 16. In support of
this argument, the CIA cites its own FOIA regulation, which states:
A request need only reasonably describe the records of interest. This means that
documents must be described sufficiently to enable a professional employee
familiar with the subject to locate the documents with a reasonable effort.
Commonly this equates to a requirement that the documents must be locatable
through the indexing of our various systems.
32 C.F.R. § 1900.12 (emphasis added). The CIA’s FOIA regulations also define reasonably
described records to mean “a description of a document (record) by unique identification number
or descriptive terms which permit an Agency employee to locate documents with reasonable
effort given existing indices and finding aids.” Id. § 1900.02(m) (emphasis added). In response,
however, the plaintiff likewise cites these regulations, but it argues that their language
“restricting th[e] definition [of ‘reasonably describes’] in terms of the request’s compatibility
30
Indeed, the plaintiff goes so far as to argue in its opposition to the CIA’s motion for summary judgment in No. 11-
444 that it “feels comfortable in saying” that the defendant’s overbroad interpretation of terms like “relating to” and
“pertaining to” is “likely the worst component of the ‘overbroad application of “reasonably describe”’ pattern or
practice it seeks to overturn in Count 11,” Pl.’s 444 Summ. J. Opp’n at 19, even though the plaintiff failed to
reference this argument at all in its opposition to the CIA’s motion to dismiss. The Court will address this argument
anyway, in the interest of providing a comprehensive analysis of the plaintiff’s challenge.
54
with existing index systems is an impermissible interpretation of Congress’s intent and therefore
must be rejected.” Pl.’s 444 Opp’n at 23.
Whether or not the CIA’s interpretation of the term “reasonably describes” in the FOIA is
inconsistent with the FOIA is a purely legal question of statutory interpretation that the Court
will review de novo. See United States v. Cook, 594 F.3d 883, 886 (D.C. Cir. 2010) (holding that
“the proper interpretation of a statute is a question of law”); Collins v. Nat’l Transp. Safety Bd.,
351 F.3d 1246, 1253 (D.C. Cir. 2003) (“For generic statutes like the APA, FOIA, and [Federal
Advisory Committee Act], the broadly sprawling applicability undermines any basis for
deference, and courts must therefore review interpretive questions de novo.”); Tax Analysts v.
IRS, 117 F.3d 607, 613 (D.C. Cir. 1997) (“The meaning of FOIA should be the same no matter
which agency is asked to produce its records.”) Therefore, “because a court can fully resolve
any purely legal questions on a motion to dismiss, there is no inherent barrier to reaching the
merits at the 12(b)(6) stage.” Marshall Cnty. Health Care Auth. v. Shalala, 988 F.2d 1221, 1226
(D.C. Cir. 1993).
Under the FOIA, agencies are required to make “promptly available” records that are
“reasonably describe[d]” in a request that “is made in accordance with published rules stating the
time, place, fees (if any), and procedures to be followed, and which are not exempt from
disclosure.” 5 U.S.C. §§ 552(a)(3)(A), 552(b). 31 The phrase “requests for records which . . .
reasonably describes such records” was added to the FOIA in 1974, and it replaced the phrase
“request for identifiable records.” See Pub. L. No. 93-502, § 1(b)(1), 88 Stat. 1561, 1561 (1974).
31
Thus, the question of whether or not a request “reasonably describes” the requested records is a threshold
administrative inquiry. An agency need not make records available to a requester unless and until a requester
“reasonably describes such records.” Hence, there is a meaningful difference between a broadly sweeping yet
“reasonably describe[d]” FOIA request, which might trigger the agency’s duties to communicate and cooperate with
requesters under 5 U.S.C. § 552(a)(6)(B)(ii), and a request that fails to meet the threshold of “reasonably
describ[ing]” the records in the first place.
55
The Senate Judiciary Committee Report accompanying this amendment stated that, “the
identification standard in the FOIA should not be used to obstruct public access to agency
records” and the amendment “makes explicit the liberal standard for identification that Congress
intended.” S. Rep. No. 93-854, at 10 (1974). The House Committee on Government Operations
Report accompanying the amendment clarified that, “a ‘description’ of a requested document
would be sufficient if it enabled a professional employee of the agency who was familiar with
the subject area of the request to locate the record with a reasonable amount of effort.” H.R.
Rep. No. 93-876, at 5–6. The D.C. Circuit has held, in this regard, that “[t]he linchpin inquiry”
in determining whether a request “reasonably describes” the records sought is “whether the
agency is able to determine ‘precisely what records [are] being requested.’” Yeager, 678 F.2d at
326 (alteration in original) (quoting S. Rep. No. 93-854, at 10).
The CIA argues that, “[b]ecause the way [its] records system is configured directly
affects whether a CIA professional employee can locate requested documents with a reasonable
amount of effort, the configuration of its records system is a proper factor for [it] to consider in
determining whether a FOIA communication adequately describes the requested records.”
Def.’s 444 Mem. at 16–17. In support of this argument, the CIA cites two cases from this Court
that discussed an agency’s ability to consider the configuration of its own records system in
responding to FOIA requests. Id. at 16; see Assassination Archives & Research Ctr., Inc. v. CIA,
720 F. Supp. 217, 219 (D.D.C. 1989) (“[A]gencies are not required to maintain their records or
perform searches which are not compatible with their own document retrieval systems.”);
Blakely v. Dep’t of Justice, 549 F. Supp. 362, 366–67 (D.D.C. 1982) (“The FOIA was not
intended to compel agencies to become ad hoc investigators for requesters whose requests are
not compatible with their own information retrieval systems.”). In response, the plaintiff relies
56
heavily on the legislative history of the 1974 FOIA amendments, most of which is cited and
discussed above. See Pl.’s 444 Opp’n at 23–24. As the defendant correctly points out, however,
the legislative history does not “directly mention whether an agency can consider the
configuration of its records in determining whether a FOIA request reasonably describes the
records sought.” Def.’s 444 Reply at 16.
Reading between the lines of the plaintiff’s brief, it appears that the plaintiff essentially
concedes that an agency is allowed to consider the configuration of its records systems in
responding to a FOIA request. In fact, the plaintiff’s brief cites no authority that would
contradict that principle. The plaintiff’s argument is focused more on the principle that an
agency cannot disingenuously hide behind the configuration of its records systems in an attempt
to thwart otherwise proper FOIA requests. See, e.g., Pl.’s 444 Opp’n at 24 (arguing that the 1974
FOIA amendment, adding the term “reasonably describes,” was “supposed to ‘directly aid
citizens in obtaining Government documents’”). Without addressing the merits of this latter
principle, the Court simply notes that such a principle is irrelevant to deciding the first question
presented by the plaintiff’s policy or practice claim, i.e., whether the FOIA permits agencies to
consider the configuration of their records systems in deciding whether a FOIA request
“reasonably describes” the records sought.
On that question, the defendant clearly has the better of the argument. It has been the law
in this Circuit for nearly 35 years that:
[A]n agency is not required to reorganize its files in response to a plaintiff’s
request in the form in which it was made, and that if an agency has not previously
segregated the requested class of records production may be required only where
the agency can identify that material with reasonable effort.
Goland v. CIA, 607 F.2d 339, 353 (D.C. Cir. 1978) (alterations, footnotes, and internal quotation
marks omitted). This principle is perfectly consistent with the legislative history cited by the
57
plaintiff, which states that a request reasonably describes records sought when it would enable an
informed agency employee to locate the records “with a reasonable amount of effort.” H.R. Rep.
No. 93-876, at 6. The legislative history did not sweep as broadly as the plaintiff suggests
because the legislative history indicates that Congress was more narrowly concerned that
agencies were requiring requesters to cite “a specific title or file number” in their requests, see id.
at 5; see also 120 Cong. Rec. 6,809 (1974) (statement of Rep. Thorne), not that agencies were
taking the configuration of their records systems into account more generally. It would be
unreasonable to require agencies to throw practical considerations to the wind in deciding
whether they can process FOIA requests because, although the FOIA regime undoubtedly seeks
to “directly aid citizens in obtaining Government documents,” it also strives to achieve that goal
without trampling on the agency’s prerogative to organize and manage its records in a reasonably
efficient manner. In other words, an agency is presumably unable “to determine ‘precisely what
records [are] being requested’” when it cannot perform a reasonable search for the requested
records within the limitations of how its records systems are configured. See Yeager, 678 F.2d at
326.
The search at issue in Goland is a useful example. In that case, the plaintiff sought
documents related to the legislative history and passage of the National Security Act of 1974 and
the CIA Act of 1949, as well as two bills introduced into Congress in 1948 providing for the
administration of the CIA. Goland, 607 F.2d at 342–43. In particular, the plaintiff sought any
documents produced from congressional reports or hearings related to these laws and also “any
materials which may have been the basis for testimony at hearings or materials used by or
submitted by the CIA or other Executive Branch sources which are included in unpublished
reports on the cited bills.” Id. at 343 (alteration and internal quotation marks omitted). The CIA
58
conducted a search for such records, but it averred in affidavits that it had “no indices or
compendiums identifying records as ‘preparatory documents for congressional testimony,” and
thus “any additional records of this description, if they exist, could be found only by ‘a page-by-
page search’ through the ‘84,000 cubic feet of documents in the CIA Records Center.’” Id. at
353 (alteration omitted). The D.C. Circuit upheld the adequacy of this search, holding that the
CIA’s affidavits “plainly show[ed] that the effort required to locate the hypothesized ‘back-up’
documents [prepared for use at these hearings] would be unreasonable here.” Id. at 353–54.
Thus, Goland recognized the fact that the “reasonable efforts” that an agency is required to put
forth in locating requested documents is bounded, at least in part, by the configuration of an
agency’s records systems. It stands to reason that this principle applies to all stages of the
processing of a FOIA request, including the threshold decision of whether to process the request
at all. 32
The plaintiff is still correct in asserting that an agency may not hide behind the
limitations of its own records systems in refusing to process FOIA requests, but this the plaintiff
has not alleged in its First Amended Complaint. The plaintiff’s policy-or-practice claim
challenging the alleged Reasonably Describe Policy (Count Eleven in No. 11-444) only alleges
32
The Court recognizes the hydraulic effect that this logical extension of Goland and its progeny could potentially
have upon FOIA litigation: If agencies are permitted to cite the configuration of their records systems in refusing to
process a request as not “reasonably described,” or as requiring an unduly burdensome search, requesters would be
pushed to seek judicial review of agencies’ FOIA responses at an earlier stage in the FOIA process. This is only
problematic to the extent that agencies choose to abuse this power by hiding behind the configuration of their
records systems in refusing to process otherwise properly framed requests. Agencies that see this doctrinal
extension as an invitation to artfully dodge FOIA requests they would rather not process would be short-sighted,
however, since such a choice would entail perverse consequences. If an agency chooses to rely too heavily on the
“reasonably describes” requirement to get rid of broad or pesky FOIA requests at their inception, rather than
embracing the spirit of the agency’s obligations under 5 U.S.C. § 552(a)(6)(B) to “provide the person an opportunity
to limit the scope of the request” or “an opportunity to arrange with the agency an alternative time frame for
processing the request or a modified request,” that agency will subject its FOIA processing practices to judicial
scrutiny and supervision at a much earlier point in time than would otherwise be necessary. The Court presumes
that agencies will generally choose the path outlined in § 552(a)(6)(B)—which is triggered with a proper request—
and responsibly exercise their discretion in deciding when to refuse to process FOIA requests because of the
configuration of their records systems.
59
that the CIA’s citation to the configuration of its records system is, as a general matter, an
inappropriate basis to conclude that a requester has failed to reasonably describe the records
sought. See FAC ¶¶ 57–61, NSC II. That claim under Golan must be dismissed because its legal
premise is incorrect as a matter of law.
The second aspect of the plaintiff’s challenge to the CIA’s alleged Reasonably Describe
Policy is also unavailing, but for a different reason. The plaintiff argues that the CIA interprets
too broadly terms like “relating to” and “pertaining to” in FOIA requests, and the CIA allegedly
relies on those overbroad interpretations to conclude that FOIA requests do not reasonably
describe the records sought. See Pl.’s 444 Summ. J. Opp’n at 19 (arguing that the CIA has a
“misguided rule that any request that contains the words ‘pertaining to,’ ‘related to,’ or ‘relating
to’ is automatically overbroad whenever [the CIA] does not feel like processing it”). The
problem with this aspect of the plaintiff’s challenge is that, unlike the first aspect, it does not
focus on a formal interpretation of the “reasonably describes” requirement. Rather, the plaintiff
is arguing that the CIA has implemented a loose practice of concluding that many, perhaps
most, 33 requests that use the phrases “relating to,” “pertaining to,” and the like do not reasonably
describe the records sought. This fails to state claim in the abstract because, short of a
categorical refusal to process any requests that contain these phrases, an agency is permitted to
assess the language of each FOIA request that it receives in order to determine whether it
“reasonably describes” the records it seeks.
33
Although the plaintiff intimates that the CIA categorically refuses to process FOIA requests that contain the
phrases “relating to” or “pertaining to,” that insinuation is refuted by the plaintiff’s First Amended Complaint, which
includes a claim that the CIA processed, but found no records responsive to, a FOIA request for “all records
pertaining to guidelines for attorneys in the Office of General Counsel (“OGC”) for the conduct of civil cases,
especially pertaining to interactions between OGC attorneys and Department of Justice (“DOJ”) attorneys.” FAC
¶¶ 105, 107, NSC II.
60
The Court nevertheless finds troubling the plaintiff’s claim that the CIA is systematically
attempting to overuse the “reasonably describes” requirement because such an abuse of the
FOIA’s statutory language would result in a large swath of FOIA requests never even getting
processed, even though they should be. 34 This is particularly disturbing in light of Congress’s
explicit admonition that agencies are not to use the “reasonably describes” requirement “to
obstruct public access to agency records.” S. Rep. No. 93-854, at 10. Federal courts’
jurisdiction under the FOIA is not limited to denials of requests that reasonably describe the
records sought, and an agency is not the final arbiter of whether a FOIA request “reasonably
describes” the records it seeks. Thus, a FOIA requester dissatisfied with an agency’s decision
about whether a request “reasonably describes” the records it seeks may seek judicial review of
that question. See discussion infra Part III.C.3.a. Indeed, the CIA implicitly concedes this
aspect of the Court’s jurisdiction because it has not moved to dismiss the two claims by the
plaintiff that the CIA has improperly refused to process particular FOIA requests deemed not to
reasonably describe the records sought. See FAC ¶¶ 46–55, NSC II. Even so, the question of
whether a particular FOIA request “reasonably describes” the records sought is a highly context-
specific inquiry, ill-suited to abstract analysis without a formal (or at least officially
acknowledged) agency interpretation of the “reasonably describes” requirement. Lacking such
an official agency interpretation with respect to the second aspect of its challenge to the CIA’s
alleged Reasonably Describe Policy, the plaintiff and requesters like it are limited to challenging
individual refusals to process FOIA requests on the basis that the request does not reasonably
describe the records sought.
34
The plaintiff directs the Court to “nineteen of Defendant’s most egregiously questionable determinations that
requests allegedly failed to reasonably describe the records sought.” Pl.’s 444 Opp’n at 26. Although the Court
does not consider this evidence in ruling upon the CIA’s motion to dismiss, it is worth observing that some of these
examples include rather specific requests, such as a request for “a copy of all publications/reports made by the
[Director of National Intelligence] Open Source Center for January of 2009.” See Pl.’s 444 Opp’n Ex. E at 37.
61
3. Administrative Appeals Policy and Work With Policy
Under the FOIA, once an agency has received a request, it has twenty days within which
to determine “whether to comply with such request,” and the agency must also “immediately
notify the person making such request of such determination” and “of the right of such person to
appeal to the head of the agency any adverse determination.” 5 U.S.C. § 552(a)(6)(A)(i). The
FOIA does not explicitly define the term “adverse determination.” Additionally, under the
CIA’s FOIA regulations, any communications “which do not meet the[] requirements [of
reasonably describing the records sought and not requiring an unreasonable search] will be
considered an expression of interest and the Agency will work with, and offer suggestions to, the
potential requester in order to define a request properly.” 32 C.F.R. § 1900.12(c).
The plaintiff challenges the CIA’s alleged Administrative Appeals Policy in Count Five
of No. 11-444 by alleging that when the CIA refuses to process a request that it deems improper,
the CIA has a policy or practice of refusing the requester’s right to administratively appeal that
decision. FAC ¶¶ 28–29, NSC II. The plaintiff claims that “[a]n agency’s duty to adjudicate
administrative appeals of any negative determinations is a cornerstone of FOIA’s due process
framework,” and therefore it avers that this alleged policy or practice violates the FOIA. Id.
¶¶ 27, 29. The CIA argues that this claim should be dismissed because an agency’s
determination that a FOIA request is improper or invalid does not qualify as an “adverse
determination” that would trigger the right to administrative appeal under the statute, and
therefore its policy of refusing the right of administrative appeal when a request is deemed
improper or invalid is consistent with the FOIA. See Def.’s 444 Mem. at 14–15. Yet, the
plaintiff responds that if the FOIA allows agencies to refuse the right to an administrative appeal,
“the exhaustion doctrine is effectively turned on its head” leaving requesters “forced to speculate
about [the agency’s] reasons for its actions in a vacuum.” See Pl.’s 444 Opp’n at 22.
62
To better understand the context of the plaintiff’s position, however, it is helpful also to
consider a related policy or practice alleged by the plaintiff. The plaintiff also challenges the
CIA’s alleged Work With Policy in Count Fifteen of No. 11-444, claiming that when the CIA
deems a FOIA request improper or invalid, it habitually fails to contact the requester and “work
with, and offer suggestions to, the potential requester in order to define a request properly,” as
required by the CIA’s own regulations. See FAC ¶ 74, NSC II. The CIA argues that this claim
should also be dismissed because the plaintiff has failed to “establish that the CIA has a policy or
practice of not working with potential FOIA requesters,” citing two of the examples of improper
requests in the plaintiff’s Complaint, which include suggestions from the CIA about how to
refine the scope of the requests. See Def.’s 444 Mem. at 18–19.
Combining these two alleged policies or practices, the plaintiff is claiming that the CIA
has all but nullified agency consideration of requests that are deemed improper or invalid: The
alleged Work With Policy prevents requesters from refining improper requests to make them
amenable to processing, and the alleged Administrative Appeals Policy leaves requesters with no
avenue for administrative review of whether the determination was appropriate. The question is
whether the FOIA and the APA permit this state of affairs. Though these two alleged policies
are related, the legal analysis applied to these alleged policies will differ because the
Administrative Appeals Policy is an alleged violation of the FOIA itself, while the Work With
Policy is an alleged violation of the CIA’s regulation. Thus, the Administrative Appeals Policy
will be evaluated under the FOIA, while the Work With Policy will be evaluated under the APA.
a) The Alleged Administrative Appeals Policy Fails to State a Claim
under the FOIA
As to the Administrative Appeals Policy, the plaintiff’s claim can only survive if the
FOIA requires agencies to provide an administrative appeal from a determination that a request
63
is improper. In other words, it can survive only if a determination that a request is improper
qualifies as an “adverse determination” under the FOIA. Once again, this raises a question of
statutory interpretation.
Many courts have recognized that an agency’s disclosure duties under the FOIA are not
triggered until a proper FOIA request is submitted. See, e.g., Truitt v. Dep’t of State, 897 F.2d
540, 544 (D.C. Cir. 1990) (“To be sure, a request which fails to ‘reasonably describe[]’ the
documents sought does not trigger a search for agency records.”); Davis v. FBI, 767 F. Supp. 2d
201, 204 (D.D.C. 2011) (“An agency’s disclosure obligations under the FOIA are triggered by its
receipt of a request that ‘reasonably describes [the requested] records’ and ‘is made in
accordance with published rules stating the time, place, fees (if any), and procedures to be
followed.’”); Ramstack v. Dep’t of Army, 607 F. Supp. 2d 94, 102 (D.D.C. 2009) (“[O]nly a
valid FOIA request can trigger an agency’s FOIA obligations . . . .”). The D.C. Circuit also held,
in a seminal FOIA case, that “[a] response [by an agency] is sufficient for purposes of requiring
an administrative appeal if it includes: the agency’s determination of whether or not to comply
with the request; the reasons for its decision; and notice of the right of the requester to appeal to
the head of the agency if the initial agency decision is adverse.” Oglesby v. U.S. Dep’t of Army,
920 F.2d 57, 65 (D.C. Cir. 1990).
This case presents the question of whether a particular agency response is a
“determination” that would require the agency to provide for administrative exhaustion in the
form of an administrative appeal. The cases in this Circuit, including Oglesby, however, have
only addressed the inverse question, i.e., whether an agency response was a “determination” that
required the requester to exhaust its administrative remedies. Thus, the Circuit’s definition of a
response that “is sufficient for purposes of requiring an administrative appeal,” articulated in
64
Oglesby, sheds no light on the question presented in this case because it defines such a response,
in part, by whether the agency has provided “notice of the right of the requester to appeal to the
head of the agency.” Id.; see also Hall & Assocs. v. EPA, 846 F. Supp. 2d 231, 240 (D.D.C.
2012) (holding that agency response was not “adverse determination” where the agency response
did not notify the requester of its right to administrative appeal). For purposes of the question
presented in the instant case (whether an agency must provide an administrative appeal), the
definition of an adverse determination outlined in Oglesby (a determination that includes the
right of administrative appeal) is merely circular. In other words, Oglesby and the instant case
reside on opposite sides of the same coin—Oglesby deals with when a requester must pursue an
administrative appeal, and the instant case deals with when an agency must provide an
administrative appeal.
The language and structure of the FOIA nevertheless provide a reasonably clear answer
to the question raised by the plaintiff’s challenge to the CIA’s Administrative Appeals Policy.
The FOIA states that, “upon any [proper] request,” i.e., a request “made under paragraph (1), (2),
or (3) of this subsection,” 35 the agency “shall . . . determine within 20 days . . . after the receipt
of any such request whether to comply with such request.” 5 U.S.C. § 552(a)(6)(A) (emphasis
added). This language makes clear that an agency has no duty to make any “determination” with
regard to a FOIA request unless that request is proper. Thus, it is reasonable to conclude that the
term “adverse determination” in 5 U.S.C. § 552(a)(6)(A)(i) only contemplates agency decisions
that are in response to a proper FOIA request. In other words, the FOIA does not require
agencies to provide administrative appeals on the issue of whether a request is proper in the first
35
The relevant paragraph for FOIA requests is paragraph (3), which is the paragraph that requires requests to
“reasonably describe[]” the records sought. See 5 U.S.C. § 552(a)(3). The instant cases do not implicate requests
made under 5 U.S.C. § 552(a)(1) or § 552(a)(2).
65
place. Therefore, the plaintiff’s challenge to the CIA’s alleged Administrative Appeals Policy
(Count Five in No. 11-444) will be dismissed for failure to state a claim.
Again, however, this result may entail perverse consequences for the CIA. As discussed
above, the unavailability of an administrative appeal would not preclude a requester from
seeking judicial review of an agency’s decision that a request is improper, and the CIA does not
contend otherwise. See discussion supra Part III.C.2. At the very least, such an agency decision
would be presumptively reviewable under the APA, if not the FOIA itself. See, e.g., Council for
Urological Interests v. Sebelius, 668 F.3d 704, 708–09 (D.C. Cir. 2011) (recognizing the “strong
presumption that Congress intends judicial review of administrative action’” (quoting Bowen v.
Mich. Acad. of Family Physicians, 476 U.S. 667, 670 (1986))). In such a circumstance, a
requester’s failure to exhaust its administrative remedies does not bar judicial review because,
when an agency makes a conscious choice not to provide a party with administrative process, the
agency constructively waives the requirement of administrative exhaustion. See Cutler v. Hayes,
818 F.2d 879, 891 (D.C. Cir. 1987) (holding that “the exhaustion requirement may be waived by
the agency, or disregarded by the court when application of the doctrine would be futile”);
accord Harline v. DEA, 148 F.3d 1199, 1202 (10th Cir. 1998) (“Exhaustion is waivable by an
agency, as when the agency itself acknowledges further administrative proceedings would not
serve its purposes.” (citing Weinberger v. Salfi, 422 U.S. 749, 764–67 (1975) and Bowen v. City
of New York, 476 U.S. 467, 484 (1986))). A party appearing before an administrative body
cannot be punished for the agency’s choice to shoot itself in the foot by refusing to review its
own decisions. In this way, the refusal of the CIA to provide administrative appeals in these
circumstances could be viewed as a boon to FOIA requesters because it expedites a requester’s
ability to seek judicial review of an agency’s decisions that a particular request does not
66
reasonably describe records sought or otherwise fails to comply with the agency’s FOIA
regulations.
To the extent the CIA’s failure to provide administrative appeals to requesters regarding
whether a request “reasonably describes” records is an attempt to divert FOIA cases from the
agency’s docket to the dockets of the federal courts, however, the CIA may try the patience of
judges called upon to adjudicate these claims because they consume scarce judicial resources on
questions that could easily, and perhaps more appropriately, be addressed at the administrative
level. The Court also recognizes that the effect on the plaintiff and other FOIA requesters (not to
mention taxpayers) from the agency’s diversion of these claims to the courts is an expensive one,
forcing requesters and the government alike to expend time and money litigating these claims.
In sum, although the FOIA permits the CIA to continue this alleged policy, the CIA should
carefully consider the prudence of doing so.
b) The Alleged Work With Policy Fails to State a Claim Under the
APA
The plaintiff’s related claim regarding the CIA’s alleged Work With Policy fails to state a
claim under the APA. The CIA does not contest that it has a clear duty to “work with, and offer
suggestions to” potential requesters who have submitted improper requests “in order to define a
request properly.” See 32 C.F.R. § 1900.12(c). Thus, the CIA also does not appear to contest
that a policy, in the form of a “final agency action,” which refuses to “work with, and offer
suggestions to” potential requesters would violate its own regulation and could be set aside under
the APA as agency action that is “without observance of procedure required by law.” See 5
U.S.C. § 706(2)(D). The CIA’s only argument in favor of dismissal is that the plaintiff “cannot
establish that the CIA has a policy or practice of not working with potential FOIA requesters,”
pointing to “examples of the CIA working with and offering suggestions to” the plaintiff, which
67
are contained in the plaintiff’s First Amended Complaint. Def.’s 444 Mem. at 18–19; see also
Def.’s 444 Reply at 17. As it relates to the APA claim challenging the CIA’s alleged Work With
Policy (Count Fifteen in No. 11-444), the Court construes the defendant’s argument to be that the
plaintiff has failed to allege a “final agency action,” which is required to state a claim under the
APA. See 5 U.S.C. § 704; Holistic Candlers & Consumers Ass’n v. FDA, 664 F.3d 940, 946
(D.C. Cir. 2012).
The D.C. Circuit has made clear that “an on-going program or policy is not, in itself, a
‘final agency action’ under the APA,” and thus a court’s “jurisdiction does not extend to
reviewing generalized complaints about agency behavior.” Cobell v. Kempthorne, 455 F.3d 301,
307 (D.C. Cir. 2006) (internal quotation marks omitted). A plaintiff “cannot seek wholesale
improvement” of the CIA’s patterns of behavior in responding to FOIA requests under the APA
“rather than in the offices of the [agency] or the halls of Congress, where programmatic
improvements are normally made.” Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 891 (1990). In
other words, the plaintiff complains of “the continuing (and thus constantly changing) operations
of the [CIA] in reviewing [FOIA requests],” which is “no more an identifiable ‘agency action’—
much less a ‘final agency action’—than a ‘weapons procurement program’ of the Department of
Defense or a ‘drug interdiction program’ of the Drug Enforcement Administration.” Id. at 890.
The plaintiff does not claim that the alleged Work With Policy is pursuant to any
officially acknowledged agency rule or policy in place at the CIA. Nor does the plaintiff allege
that this “policy, practice, or standard operating procedure” of the CIA is mandatory upon
agency officials. The plaintiff merely observes that the CIA has consistently refused to “work
with” FOIA requesters on a number of occasions. This sort of “generalized complaint[] about
agency behavior,” however, is not a complaint about final agency action. See Cobell, 455 F.3d
68at 307. As was the case with the plaintiff’s challenge to the alleged Reasonably Describe Policy,
individual refusals by the CIA to “work with” requesters may be subject to challenge within the
framework of the APA, see, e.g., Butte Cnty. v. Hogen, 613 F.3d 190, 194 (D.C. Cir. 2010)
(“[A]gency decisions in informal adjudication are subject to judicial review under § 706 of the
APA.”), but at a broader policy level, the plaintiff has failed to allege a “final agency action,”
and thus the plaintiff’s APA challenge to the CIA’s alleged Work With Policy (Count Fifteen in
No. 11-444) will be dismissed for failure to state a claim. 36
4. Cut-Off Date Policy
The Court next addresses the plaintiff’s challenge to the CIA’s alleged Cut-Off Date
Policy. The plaintiff claims that, pursuant to this alleged policy, the CIA “applies an arbitrary
‘date of response’ cut-off date” on FOIA requests “regardless of the nature of the request or the
anticipated length of the search.” FAC ¶ 113, NSC II. An agency rule establishing a temporal
limit to its search efforts under the FOIA “is only valid when the limitation is consistent with the
agency’s duty to take reasonable steps to ferret out requested documents.” McGehee v. CIA, 697
F.2d 1095, 1101 (D.C. Cir. 1983). The D.C. Circuit disfavors an agency’s “reflexive application
of [a] cut-off policy to every request regardless of circumstances” and has “expressly rejected the
proposition that under FOIA, the ‘use of a time-of-request cut-off date is always reasonable.’”
Public Citizen v. Dep’t of State, 276 F.3d 634, 643 (D.C. Cir. 2002) (quoting McGehee, 697 F.2d
at 1102). Nevertheless, “specific circumstances in some agencies may render an across-the-
36
Although the plaintiff fails to state a claim for relief in this Court, the plaintiff’s complaint about the Work With
policy is best directed at Congress. The CIA’s duty to “work with” requesters, like an agency’s determination of
whether a request “reasonably describes” the records sought, occurs at the threshold of the FOIA request process.
The FOIA itself imposes a similar duty to “provide [a requester] an opportunity to limit the scope of [its] request . . .
or an opportunity to arrange with the agency an alternative time frame for processing the request or a modified
request.” 5 U.S.C. § 552(a)(6)(B)(ii). This latter duty, however, is not triggered if an agency has not yet received a
request that “reasonably describes such records.” Hence, there is a statutory disconnect between § 552(a)(3) and
§ 552(a)(6)(B), which leaves the plaintiff unable to challenge the CIA’s alleged policy or practice under either the
FOIA or the APA.
69
board rule reasonable,” and it is the agency’s burden to make a “showing that warrants such an
approach.” See id.
In the instant actions, the CIA argues that its alleged Cut-Off Date Policy would be
reasonable “because the CIA is a large agency that receives a substantial volume of FOIA
requests.” Def.’s 444 Reply at 18. This argument is unpersuasive for two reasons. First,
determining the reasonableness of an agency’s categorical cut-off date for running FOIA
searches is particularly inappropriate at the motion to dismiss stage because the CIA has not yet
submitted any affidavits or other proof that would support its argument that an across-the-board
cut-off date is reasonable. See Public Citizen, 276 F.3d at 643–44 (to establish reasonableness of
across-the-board cut-off date, an agency must make a “showing that warrants such an approach”
that would “substantiate its claim”). Second, the agency’s reasoning has largely been rejected by
the D.C. Circuit in McGehee and Public Citizen. In fact, McGehee specifically addressed the
CIA’s policy of imposing a categorical date-of-request (rather than date-of-response) cut-off
date. In that case, the CIA put forth a number of justifications similar to the one proffered in the
instant action, all of which the D.C. Circuit rejected as a basis for concluding that an across-the-
board policy was reasonable. Specifically, the CIA pointed to
the benefits of ‘precis[ion]’ (the value of having a single cut-off date that all
agency divisions know in advance), the ‘confusion’ that might be engendered by
different agency components using different cut-off dates (e.g., each division
using the date at which it commenced searching for its documents), the alleged
costs and inconvenience to the agency of conducting the successive, duplicative
searches that might be necessary if the date of a final response or the date of
litigation were employed as a cut-off date, and the disruption of the agency’s fee
schedules that would accompany the use of anything other than its present
procedure.
McGehee, 697 F.2d at 1103–04. The CIA similarly now claims that its policy is reasonable
because, as “a large agency” that “processes a high volume of FOIA requests,” it requires the
“consistency and uniformity” that result from a categorical cut-off date. Def.’s 444 Mem. at 20.
70
It would be out of line with the precedents in this Circuit for the Court to conclude as a matter of
law that the CIA’s policy is reasonable. See Public Citizen, 276 F.3d at 644 (“At the very least,
we think that with minimal administrative hassle, the [agency] could apply a date-of-search cut-
off . . . .”). Thus, the CIA’s motion to dismiss will be denied with respect to the plaintiff’s
challenge to the CIA’s alleged Cut-Off Date Policy (Count Twenty-One of No. 11-444), and the
CIA will have an opportunity to “adduce additional relevant testimony” that its policy is
reasonable. See McGehee, 697 F.2d at 1104.
5. Withheld Document Non-Identification Policy and Document-Level
Exemption Policy
Next, the Court addresses the plaintiff’s challenge to the CIA’s alleged Withheld
Document Non-Identification Policy and Document-Level Exemption Policy in Counts Eighteen
and Twenty, respectively, of No. 11-445. These claims allege that, at the administrative level,
the CIA has a policy of never identifying documents withheld in their entirety and only
specifying exemptions at a document level, rather than specifying the exemption claimed for
each particular redaction. See FAC ¶¶ 118–122, 128–133, NSC III.
In responding to a FOIA request, agencies are obligated to determine “whether to comply
with such request” and must notify the requester of, inter alia, the reason for the determination.
5 U.S.C. § 552(a)(6)(A)(i). If the agency decides to withhold any responsive records, it also
must “make a reasonable effort to estimate the volume of any requested matter the provision of
which is denied” and provide that estimate to the requester. Id. § 552(a)(6)(F). Finally, if an
agency decides to release records with certain portions redacted, it must indicate on each
document “[t]he amount of information deleted, and the exemption under which the deletion is
made,” and “[i]f technically feasible,” the agency must also indicate this information “at the
place in the record where such deletion is made.” Id. § 552(b). The FOIA excuses agencies
71
from having either to “estimate the volume of” withheld records or indicate “[t]he amount of
information deleted, and the exemption under which the deletion is made,” when compliance
with those procedures “would harm an interest protected by the exemption” being claimed. Id.
§§ 552(a)(6)(F), 552(b).
In support of its challenge to the CIA’s alleged Withheld Document Non-Identification
Policy and Document-Level Exemption Policy, the plaintiff cites a publicly available CIA
training manual, which states, “‘at initial and at appeal stage, no listing of documents, or putting
specific exemptions next to redactions, is required.” Id. ¶ 119. The CIA believes the plaintiff’s
challenges to these two alleged policies should be dismissed because (1) at least one court has
upheld the CIA’s use of “no number, no list” responses for withholding documents at the
administrative stage in certain circumstances, and (2) an agency is permitted by the FOIA to
“refuse to specify the exemptions under which a deletion is made when appropriate,” i.e., “if
including the indication would harm an interest protected by the exemption.” See Defs.’ 445
Mem. at 17–18.
The plaintiff, however, argues that agencies are required to identify documents that are
withheld at the administrative level, relying heavily on a nearly 35-year-old Texas district court
case called Shermco Industries, Inc. v. Secretary of U.S. Air Force, 452 F. Supp. 306 (N.D. Tex.
1978), rev’d on other grounds, 613 F.2d 1314 (5th Cir. 1980). See Pl.’s 445 Opp’n at 18–19.
The court in Shermco stated in dictum that:
It would be impossible for a requesting person to effectively appeal an agency
decision through the administrative process with any hope of changing the
agency’s mind if the person were denied access to adequate information about the
adverse decision. A person cannot effectively appeal a decision about the
releasability of documents or the charging of fees if he is not informed of at least
a list of the documents to which he was denied access, what fees he will be
charged for releasable documents, and why those decisions were made. Denial of
this information would in all likelihood be a violation of due process as well as
72
effectively gutting the reasons for applying the exhaustion doctrine in FOIA
cases.
Shermco, 452 F. Supp. at 317 n.7 (citing U.S. CONST. amend. XIV). The plaintiff further argues
that, although agencies are not required to indicate exemptions if doing so would “harm an
interest protected by the exemption,” such actions “must be exercised on a case-by-case basis,
and a blanket policy of refusing to do so presumes that all indications would harm protected
interests.” Pl.’s 445 Opp’n at 19–20.
First, Count Eighteen in No. 11-445, challenging the alleged Withheld Document Non-
Identification Policy, fails to state a cognizable claim under the FOIA. Earlier this year, this
Court held that “[t]he plain text of the [FOIA] does not require agencies to provide a list of
withheld documents, but only to make a reasonable effort to estimate the volume of the
documents withheld.” Mobley v. Dep’t of Justice, 845 F. Supp. 2d 120, 124 (D.D.C. 2012).
Although the plaintiff may be correct that the administrative process would be more meaningful
if agencies were required to identify withheld documents at the administrative stage, those
arguments are better directed at the political branches. The Judiciary’s powers are limited to
saying what the law is, and it would be inappropriate for the Court to add a substantial
procedural requirement to the FOIA when there is no indication that Congress intended such a
requirement to exist. This result may or may not “rob the requester of his ability to intelligently
appeal any decisions at the administrative level,” Pl.’s 445 Opp’n at 19, but Congress elected not
to grant requesters that ability. Instead, the FOIA provides requesters with the opportunity for de
novo judicial review of all withholding decisions—an ample and powerful procedural
mechanism. See 5 U.S.C. § 552(a)(4)(B); see also Mead Data Cent., Inc. v. U.S. Dep’t of Air
Force, 402 F. Supp. 460, 463 (D.D.C. 1975) (“While the [agency’s] identification might have
been more detailed at an earlier [administrative] stage, the foregoing descriptions [in agency
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affidavits] are adequate for this de novo Court action.”). Therefore, the plaintiff’s challenge to
the alleged Withheld Document Non-Identification Policy (Count Eighteen in No. 11-445) will
be dismissed for failure to state a claim.
Next, Count Twenty in No. 11-445, challenging the alleged Document-Level Exemption
Policy, succeeds in stating a claim for relief based on the CIA’s stated policy. The plaintiff
concedes that an agency need not indicate the exemptions under which it redacts information at
all when “including the indication would harm an interest protected by the exemption.” Pl.’s 445
Opp’n at 19. Rather, the plaintiff’s sole contention in its brief is that the CIA is invoking
exemptions on a document level pursuant to a “blanket policy,” rather than doing so on a case-
by-case basis. Id. at 19–20. Two factual allegations support this claim. First, the plaintiff claims
that “[i]n every case in which CIA has redacted information from records released in response to
an NSC FOIA request . . . CIA has consistently invoked exemptions on a document-level without
indicating which exemptions applied to which particular redactions.” FAC ¶ 129, NSC III.
Habitually invoking exemptions for redactions on a document level, however, is not inconsistent
with doing so on a case-by-case basis. See Iqbal, 556 U.S. at 678 (complaint must plead facts
that are more than “‘merely consistent with’ a defendant’s liability”). Standing alone, these
decisions by the CIA—“consistent[]” as they may be—do not demonstrate a plausible claim
regarding a “blanket” policy.
Second, however, the plaintiff alleges the existence of a publicly available CIA training
manual, which states that “at initial and at appeal stage,” FOIA officials at the CIA need not
“put[] specific exemptions next to redactions.” FAC ¶ 119, NSC III. The CIA does not contest
that this training manual constitutes an official agency policy regarding the specification of
exemptions in redacted documents, but rather it argues that “an agency may, consistent with the
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FOIA, refuse to specify the exemptions under which a deletion is made when” including the
indication “would harm an interest protected by the exemption.” Defs.’ 445 Mem. at 18. The
only statutory language cited and discussed by the defendant, however, fails to address the
substance of the plaintiff’s allegation. The defendant cites a provision of the FOIA that requires
agencies to indicate the exemption under which a deletion is made “on the released portion of the
record.” 5 U.S.C. § 552(b). This provision, however, only governs an agency’s duty to indicate
the exemption for a given deletion at all, while the plaintiff more particularly challenges the
CIA’s failure to specify exemptions at a redaction level, as opposed to a document level. That
duty is covered by the very next sentence of the FOIA statute, which neither party has cited or
discussed. That sentence provides: “If technically feasible, the amount of the information
deleted, and the exemption under which the deletion is made, shall be indicated at the place in
the record where such deletion is made.” Id. Presuming as true the plaintiff’s uncontested
allegation that the CIA training manual represents an official CIA policy, that policy runs
roughshod over this statutory language by applying a blanket presumption that exemptions need
not be specified “next to redactions.” See FAC ¶ 119, NSC III. Therefore, the plaintiff has stated
a claim for relief in its challenge to the CIA’s alleged Document-Level Exemption Policy (Count
Twenty in No. 11-445) because a blanket policy of refusing to specify exemptions “next to
redactions,” without considering the technical feasibility of doing so, would violate the CIA’s
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duties under the FOIA. 37 Thus, the defendant’s partial motion to dismiss in No. 11-445 will be
denied with respect to Count Twenty. 38
6. Blanket Processing Notes Exemption Policy and Blanket Reference
Material Exemption Policy
The Court next considers the plaintiff’s challenge to the CIA’s alleged Blanket
Processing Notes Exemption Policy and Blanket Reference Material Exemption Policy,
contained in Counts Four and Eleven of No. 11-445, respectively. In those claims, the plaintiff
alleges that, in response to FOIA requests, the CIA improperly applies blanket exemptions to
(1) “all information pertaining to [the CIA’s] processing of FOIA and Privacy Act requests” and
(2) “all FOIA/[Privacy Act] reference materials.” FAC ¶¶ 35, 79, NSC III. By “blanket
exemption,” the plaintiff appears to mean that, when the plaintiff requests processing notes or
reference materials about particular FOIA or Privacy Act requests, the CIA “has withheld
everything from the release except for correspondence with the requester.” Id. ¶ 33.
Construing the plaintiff’s allegations in the most favorable light, the plaintiff’s claim is
that this alleged policy or practice violates the FOIA because it is “blanket” in nature, i.e., that
the CIA is reflexively and categorically withholding all processing notes and reference materials
without actually assessing the material on a record-by-record basis. See Pl.’s 445 Opp’n at 14–
15 (arguing that the CIA’s “blanket” policy and its “sweeping generalizations” in support of that
policy are “reminiscent of the days before Vaughn indices were required components of any
FOIA litigation”). The plaintiff attempts to buttress this theory in its opposition brief by citing to
37
To the extent that the plaintiff claims, however, that the CIA has failed to give case-by-case consideration to its
decision of whether to indicate exemptions at all in redacted documents, the plaintiff’s claim fails. The plaintiff has
not alleged any facts that would plausibly suggest that the CIA has a policy of refusing to indicate exemptions in
redacted documents without case-by-case consideration of whether such indication “would harm an interest
protected by the exemption.”
38
The plaintiff has failed to state a claim for relief in Count Twenty, however, insofar as it claims that, when the
“CIA has withheld records in their entirety in response to an NSC FOIA request,” the CIA “has consistently invoked
exemptions in the alternative.” FAC ¶ 128, NSC III. The FOIA does not prohibit an agency from invoking
exemptions in the alternative when the agency withholds records from disclosure.
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what the plaintiff claims is the “only CIA FOIA processing notes released to any requester,”
which the plaintiff says demonstrates the “mundane” and non-exempt nature of these materials.
See id. at 15–16. The plaintiff’s claim, however, suffers from fatal defects in pleading and logic.
As discussed above in connection with County Twenty, the plaintiff’s allegations in
Counts Four and Eleven fail to distinguish between consistent decisionmaking on the one hand
and a lack of case-by-case consideration on the other. Although the plaintiff alleges in Count
Four that, in response to twelve of thirteen FOIA requests for processing materials, the CIA
“withheld everything from the release except for correspondence with the requester,” FAC ¶ 33,
NSC III, the plaintiff offers no allegation to suggest that this was not the result of case-by-case
consideration. 39 Unlike in Count Twenty, the plaintiff offers no factual allegation that the CIA
has an actual policy of categorically exempting such records. The plaintiff’s logic is that,
because the processing notes that were released are “mundane,” there must be other such
releasable material “in all the various FOIA requests for which notes have been processed for
release.” Pl.’s 445 Opp’n at 16. Yet, logic would seem to militate toward the opposite
conclusion, i.e., that the “mundane” processing notes were the only such notes released precisely
because they are the exception, rather than the rule and precisely because the CIA is considering
the release of processing notes on a case-by-case basis. Indeed, if the CIA had such a “blanket”
policy, logic would seem to suggest that these “mundane” processing notes would have been
withheld, rather than produced. Despite all of this, the plaintiff’s only explanation for why these
processing notes were released is that they represent an “inexplicabl[e] deviat[ion] from [the
CIA’s] pattern,” but such thinking begs the question. Pl.’s 445 Opp’n at 15.
39
The plaintiff also offers no factual allegations whatsoever to support its claim in Count Eleven. The plaintiff
merely offers the conclusory assertion that the CIA has made a “decision to apply a blanket exemption to all
FOIA/[Privacy Act] reference materials,” which violates the FOIA. FAC ¶ 79, NSC III. This allegation is patently
insufficient to state a plausible claim for relief.
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Even setting aside the plaintiff’s apparent logical fallacies, however, the fact remains that
the plaintiff has failed to allege any facts that would plausibly suggest that the CIA has
categorically exempted FOIA processing notes or reference materials without case-by-case
consideration. 40 The plaintiff also has not alleged that the CIA failed to comply with the other
required procedures of the FOIA in withholding these records, such as disclosing the estimated
volume of the records withheld and identifying which exemptions apply to the withheld
documents. Absent allegations that would plausibly suggest an ongoing violation of the FOIA,
the plaintiff’s challenges to the Blanket Processing Notes Exemption Policy and Blanket
Reference Material Exemption Policy (Counts Four and Eleven in No. 11-445) will be dismissed
for failure to state a claim. 41
7. Glomar Response Policy
Finally, the Court will address the plaintiff’s challenge to the CIA’s alleged Glomar
Response Policy. “‘[A]n agency may refuse to confirm or deny the existence of records where to
answer the FOIA inquiry would cause harm cognizable under a FOIA exception.’” Moore v.
CIA, 666 F.3d 1330, 1333 (D.C. Cir. 2011) (quoting Gardels v. CIA, 689 F.2d 1100, 1103 (D.C.
Cir. 1982)). These responses are known as Glomar responses. See Phillippi v. CIA, 546 F.2d
1009, 1011 (D.C. Cir. 1976). “If, however, the agency has officially acknowledged the existence
of the record, the agency can no longer use a Glomar response and instead must either:
(1) disclose the record to the requester or (2) establish that its contents are exempt from
disclosure and that such exemption has not been waived.” Moore, 666 F.3d at 1333 (citation
40
Hence, the Court need not reach the question of whether FOIA processing or reference materials would actually
enjoy categorical exemption.
41
The Court need not reach the question of whether the plaintiff would succeed in stating a claim if it had alleged
facts to support the notion that the CIA was failing to give case-by-case consideration to its withholding decisions.
It is sufficient to hold that a plaintiff alleging a policy or practice of “blanket” or categorical decisionmaking by
FOIA administrators must allege facts that plausibly suggest a widespread lack of individual consideration, as
opposed to a pattern of consistently deciding cases in a particular way.
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omitted) (citing Wolf, 473 F.3d at 378–80). “[I]n order to overcome an agency’s Glomar
response based on an official acknowledgement, the requesting plaintiff must pinpoint an agency
record that both matches the plaintiff’s request and has been publicly and officially
acknowledged by the agency.” Id.The plaintiff alleges that the CIA has a policy or practice of “authoriz[ing] a Glomar
response to any requests for information pertaining to FOIA and [Mandatory Declassification
Review] requests referred to [it].” FAC ¶ 96, NSC III. In particular, the plaintiff alleged two
examples of this policy where the CIA has issued a Glomar response to FOIA requests for
documents pertaining to particular FOIA and Mandatory Declassification Review (“MDR”)
requests, 42 despite the prior disclosure of referral memoranda from the CIA and correspondence
between the CIA and the plaintiff regarding these requests. The plaintiff alleges that the referral
memoranda were disclosed by the National Archives and Records Administration, and the
plaintiff alleges that it is in possession of the correspondence because it was the party
corresponding with the CIA. FAC ¶ 95, NSC III.
The plaintiff’s allegations challenging the CIA’s Glomar Response Policy sweep very
broadly. See FAC ¶ 96, NSC III (alleging a policy “that authorizes a Glomar response to any
request for information pertaining to FOIA and MDR requests referred to an agency”).
Construing the plaintiff’s claim most broadly, the plaintiff is complaining that, even when other
federal agencies acknowledge the existence of responsive CIA records by referring FOIA
requests to the CIA, the CIA has a policy of nevertheless issuing Glomar responses post-referral.
In other words, Agency A says that Agency B has records responsive to a FOIA request, but
Agency B says it can neither confirm nor deny that it has any such records. If this is what the
42
An MDR request is a request from a member of the public to have a document or documents declassified so that
they can be released to the public. See generally Exec. Order 13,526, 75 Fed. Reg. 707 (Dec. 29, 2009).
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plaintiff claims, however, that claim fails as a matter of well-established FOIA law. The D.C.
Circuit has consistently held that, for purposes of a Glomar response, it “do[es] not deem
‘official’ a disclosure made by someone other than the agency from which the information is
being sought.” Frugone v. CIA, 169 F.3d 772, 774 (D.C. Cir. 1999); see also Marino v. DEA,
685 F.3d 1076, 1082 (D.C. Cir. 2012) (“[A]n agency does not waive its right to invoke an
otherwise valid FOIA exemption when ‘someone other than the agency from which the
information is being sought’ discloses it.” (quoting Frugone, 169 F.3d at 774)); Moore, 666 F.3d
at 1333 n.4 (“[T]o the extent [appellant] suggests that the release of the [record] by the FBI
constitutes an official acknowledgement by the CIA, his argument is foreclosed by our
precedent.” (citing Frugone, 169 F.3d at 774–75)).
The plaintiff’s claim could, however, also be construed more narrowly. Under a
narrower construction, which is supported by the context provided in the plaintiff’s briefing, the
plaintiff claims that when certain records associated with a FOIA request are publicly released
(e.g., referral memoranda or correspondence with the requester), the responding agency is then
foreclosed from issuing a Glomar response as to other records associated with that same request
(e.g., processing notes). Indeed, the plaintiff argues, with a hint of exasperation, that “[i]t is
nonsensical to propose that CIA can write an official letter to a requester acknowledging a
referred request (or even releasing material), but that if the same requester files a FOIA request
for CIA’s processing notes regarding the very same referred request, he will be issued a Glomar
response.” Pl.’s 445 Opp’n at 18. Although the plaintiff may find it “nonsensical,” the D.C.
Circuit has clearly held that courts must apply the “official acknowledgement” exception
“strictly,” such that the “official acknowledgement” only extends to the specific records that are
acknowledged by the agency. See Moore, 666 F.3d at 1333; Wolf, 473 F.3d at 378–79; see also
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Wilner v. Nat’l Sec. Agency, 592 F.3d 60, 70 (2d Cir. 2009) (agency is “precluded from making a
Glomar response if the existence or nonexistence of the specific records sought by the FOIA
request has been the subject of an official public acknowledgement” (emphasis added)). Indeed,
this Circuit requires that a plaintiff “pinpoint an agency record that both matches the plaintiff’s
request and has been publicly and officially acknowledged by the agency.” Moore, 666 F.3d at
1333 (emphasis added). Thus, even assuming arguendo that the disclosure of the CIA’s referral
memoranda and correspondence regarding certain referred requests would qualify as “official
acknowledgements,” that still would not make it improper for the CIA to refuse to confirm or
deny the existence of processing notes from those very same requests because the processing
notes are separate documents from the referral memoranda and correspondence. The fact that
they are separate documents makes all the difference under Moore and Wolf.
The plaintiff does not claim that the CIA has issued Glomar responses with respect to
particular documents that have been officially acknowledged by the CIA. Rather, the plaintiff’s
theory appears to be that, once an agency acknowledges that a particular request was made, such
a statement waives the agency’s ability to issue a Glomar response with regard to any documents
associated with that request. As logical as this may seem to the plaintiff, it is simply not the law.
See Wolf, 473 F.3d at 378 (holding that the official acknowledgement doctrine imposes an
“insistence on exactitude” under which “the specific information sought by the plaintiff must
already be in the public domain by official disclosure”); see also Students Against Genocide
(SAGE) v. Dep’t of State, 50 F. Supp. 2d 20, 25 (D.D.C. 1999) (“[T]here is certainly no ‘cat out
of the bag’ philosophy underlying FOIA so that any public discussion of protected information
dissipates the protection which would otherwise shield the information sought.”). Therefore,
because the conduct that the plaintiff alleges would not violate the FOIA, the plaintiff’s
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challenge to the CIA’s alleged Glomar Response Policy (Count Fourteen in No. 11-445) will be
dismissed for failure to state a claim.
IV. CONCLUSION
For the reasons discussed above, in summary, the Court rules on the CIA’s partial
motions to dismiss the plaintiff’s policy-or-practice claims as follows:
1. The plaintiff’s challenge to the CIA’s alleged Assignment of Rights Policy may
go forward because the plaintiff has standing to pursue it.
2. The plaintiff’s challenges to the CIA’s alleged Aggregate Data Policy under the
FOIA, the APA, and the Mandamus Act are all dismissed.
3. The plaintiff’s challenges to the CIA’s alleged Administrative Appeals Policy
under the FOIA, the APA, and the Mandamus Act are all dismissed.
4. The plaintiff’s challenges to the CIA’s alleged Reasonably Describe Policy under
the FOIA, the APA, and the Mandamus Act are all dismissed.
5. The plaintiff’s challenges to the CIA’s alleged Work With Policy under the FOIA,
the APA, and the Mandamus Act are all dismissed.
6. The plaintiff’s challenge to the CIA’s alleged Cut-Off Date Policy under the
FOIA may go forward because it succeeds in stating a claim for relief.
7. The plaintiff’s challenge to the CIA’s alleged Blanket Processing Notes
Exemption Policy under the FOIA is dismissed.
8. The plaintiff’s challenge to the CIA’s alleged Blanket Reference Material
Exemption Policy under the FOIA is dismissed.
9. The plaintiff’s challenge to the CIA’s alleged Glomar Response Policy under the
FOIA is dismissed.
10. The plaintiff’s challenges to the CIA’s alleged Non-Provision of Completion Date
Policy under the FOIA, the APA, and the Mandamus Act are all dismissed.
11. The plaintiff’s challenges to the CIA’s alleged Withheld Document Non-
Identification Policy under the FOIA and the APA are both dismissed.
12. The plaintiff’s challenge to the CIA’s alleged Document-Level Exemption Policy
under the FOIA may go forward because it succeeds in stating claim, but the
identical challenge under the APA is dismissed.
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With respect to the specific Counts in the three complaints, the CIA’s motion to dismiss
Counts One and Two of No. 11-443—related to the CIA’s Assignment of Rights Policy—is
denied. Additionally, the CIA’s partial motion to dismiss in No. 11-444 is denied with respect to
the plaintiff’s FOIA challenge to the CIA’s alleged Cut-Off Date Policy (Count Twenty-One)
and is granted with respect to all APA claims (Counts Three, Six, Twelve, and Fifteen), all
Mandamus Act Claims (Counts Four, Seven, Thirteen, and Sixteen), and all remaining
challenges to the Aggregate Data Policy (Count Two), Administrative Appeals Policy (Count
Five), Reasonably Describe Policy (Count Eleven), and Work With Policy (Count Fourteen).
Finally, the CIA’s partial motion to dismiss in No. 11-445 is denied with respect to the FOIA
challenge to the CIA’s alleged Document-Level Exemption Policy (Count Twenty) and is
granted with respect to all APA claims (Counts Sixteen, Nineteen, and Twenty-One), the
Mandamus Act Claim (Count Seventeen) and all remaining challenges to the Blanket Processing
Notes Exemption Policy (Count Four), Blanket Reference Material Exemption Policy (Count
Eleven), Glomar Response Policy (Count Fourteen), Non-Provision of Completion Date Policy
(Count Fifteen), and Withheld Document Non-Identification Policy (Count Eighteen).
An appropriate Order accompanies this Memorandum Opinion.
Date: October 17, 2012
/s/ Beryl A. Howell
BERYL A. HOWELL
United States District Judge
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