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, 11-445
v. (BAH)
CENTRAL INTELLIGENCE AGENCY, et al., Judge Beryl A. Howell
Defendants.
MEMORANDUM OPINION
The plaintiff National Security Counselors (“NSC”) brought these three related actions
against six federal agencies pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C.
§ 552, claiming that the defendant agencies have violated the FOIA in numerous ways. 1 NSC’s
claims run the gamut, including challenges to: the withholding of specific information; the
adequacy of the agencies’ search efforts; the refusal to process FOIA requests; the refusal to
produce responsive records in an electronic format; and certain policies or practices which the
plaintiff claims are ongoing and systematic FOIA violations. Although six agencies are named
as defendants, 2 the vast majority of the plaintiff’s claims relate to the actions of the Central
Intelligence Agency (“CIA”) in processing and responding to FOIA requests. The defendants
previously moved to dismiss many of the plaintiff’s claims, which this Court previously granted
in part and denied in part. See Nat’l Sec. Counselors v. CIA (“NSC I”), 898 F. Supp. 2d 2331
The plaintiff filed each of these actions on the same day and notified the Court that all three cases are related to one
another because they involve common factual and legal issues. See Notice of Related Case, No. 11-444, ECF No. 2;
Notice of Related Case, No. 11-445, ECF No. 2. Although the Court has not formally consolidated these actions,
due to their interrelated nature and in the interests of judicial economy the Court has adjudicated dispositive motions
in the three cases in consolidated opinions. For these same reasons, the Court administratively stayed all three
actions for approximately four months while the parties completed the briefing of summary judgment motions and
cross-motions in each case. See Minute Order dated Mar. 21, 2013.
2
The six defendants are: the Central Intelligence Agency (“CIA”), the Department of Justice (“DOJ”), the Defense
Intelligence Agency (“DIA”), the Department of State (“State Department”), the National Security Agency
(“NSA”), and the Office of the Director of National Intelligence (“ODNI”).
1
(D.D.C. 2012). The defendants now move for summary judgment on all of the plaintiff’s
remaining claims, and the plaintiff has also cross-moved for summary judgment on a portion of
those claims. Additionally, the plaintiff has filed a motion for sanctions in one of the related
cases and a motion for leave to file an amended complaint in another. For the reasons discussed
below, the Court grants in part and denies in part the defendants’ motions for summary
judgment, grants in part and denies in part the plaintiff’s cross-motions for summary judgment,
denies the plaintiff’s motion for sanctions, and denies the plaintiff’s motion for leave to file an
amended complaint.
Table of Contents
I. Background .............................................................................................................................. 5
A. 2009 FOIA Requests ............................................................................................................ 6
1. Count Twenty in No. 11-444: September 25, 2009 FOIA Request to the CIA ............... 6
2. Count Eight in No. 11-445: October 22, 2009 FOIA Request to the DOJ ...................... 7
3. Counts One, Five and Six in No. 11-445: December 1, 2009 FOIA Requests to the CIA,
DIA, and ODNI....................................................................................................................... 8
B. 2010 FOIA Requests .......................................................................................................... 10
1. Counts Seven, Nine and Ten in No. 11-445: February 6, 2010 FOIA Requests to the
CIA, State Department, and NSA ......................................................................................... 10
2. Counts Two and Three in No. 11-445: February 9, 2010 FOIA Requests to the CIA... 12
3. Count Seventeen in No. 11-444: May 4, 2010 FOIA Requests to the CIA ................... 14
4. Count Three in No. 11-443: May 12, 2010 FOIA Request to the CIA .......................... 15
2
5. Count Nine in No. 11-444: May 13, 2010 FOIA Request to the CIA .......................... 16
6. Count Eight in No. 11-444: July 5, 2010 FOIA Request to the CIA ............................. 18
7. Count One in No. 11-444: August 8, 2010 FOIA Requests to the CIA ......................... 19
C. 2011 FOIA Requests .......................................................................................................... 20
1. Count Eighteen in No. 11-444: January 26, 2011 FOIA Request to the CIA ................ 20
2. Count Thirteen in No. 11-445: February 11, 2011 FOIA Request to the CIA............... 21
3. Count Ten in No. 11-444: February 16, 2011 FOIA Request to the CIA ...................... 21
D. Facts Related to the Plaintiff’s Motion for Sanctions ........................................................ 22
E. Procedural History ............................................................................................................. 26
II. Legal Standards ..................................................................................................................... 28
A. FOIA .................................................................................................................................. 28
B. Summary Judgment ........................................................................................................... 31
C. Leave to File Amended Complaint .................................................................................... 32
III. Discussion.............................................................................................................................. 33
A. Motion for Leave to Amend .............................................................................................. 33
B. Motion for Sanctions.......................................................................................................... 36
C. Policies or Practices ........................................................................................................... 38
1. Assignment of Rights Policy .......................................................................................... 38
2. Document-Level Exemption Policy ............................................................................... 58
D. Adequacy of Search Efforts ............................................................................................... 62
3
1. Count Eighteen in No. 11-444: January 26, 2011 FOIA Request to the CIA ................ 62
2. Count Twenty in No. 11-444: September 25, 2009 FOIA Request to the CIA ............. 65
3. Count Nine in No. 11-445: February 6, 2010 FOIA Request to the State Department . 67
4. Count Ten in No. 11-445: February 6, 2010 FOIA Request to the NSA ....................... 69
E. Refusals to Process Requests ............................................................................................. 71
1. Count Nine in No. 11-444: May 13, 2010 FOIA Request to the CIA ........................... 72
2. Count Eight in No. 11-444: July 5, 2010 FOIA Request to the CIA ............................. 74
3. Count One in No. 11-444: August 8, 2010 FOIA Requests to the CIA ......................... 77
4. Count Ten in No. 11-444: February 16, 2011 FOIA Request to the CIA ...................... 79
F. Exemption 1 ....................................................................................................................... 83
1. Exemption 1 Withholdings in No. 11-445 (CIA and DIA) ............................................ 84
2. Exemption 1 Withholdings in No. 11-443 ..................................................................... 90
G. Exemption 2 ....................................................................................................................... 96
H. Exemption 3 ....................................................................................................................... 99
1. CIA ............................................................................................................................... 100
2. DIA ............................................................................................................................... 119
3. ODNI ............................................................................................................................ 120
J. Exemption 5 ..................................................................................................................... 122
1. Deliberative-Process Privilege ..................................................................................... 123
2. Attorney-Client Privilege ............................................................................................. 131
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3. Attorney Work-Product Doctrine ................................................................................. 143
K. Electronic Records ........................................................................................................... 147
1. CIA ............................................................................................................................... 148
2. State Department .......................................................................................................... 151
L. Segregability .................................................................................................................... 154
IV. Conclusion ........................................................................................................................... 157
I. BACKGROUND
The plaintiff has twenty-four claims remaining in these related actions. Since twenty-one
of the plaintiff’s remaining claims relate to specific FOIA requests, the Court will briefly
summarize the timing and content of those requests, the agency’s processing of and response to
those requests, and the aspects of the agency’s processing and responses that are challenged by
the plaintiff. 3 In summarizing the specific FOIA requests at issue, the Court will proceed in
chronological order, rather than in the order the requests are pleaded in the plaintiff’s complaints.
In this regard, the Court will organize its discussion by the year in which the FOIA requests were
first submitted. The Court will also discuss the factual and procedural background related to the
plaintiff’s motion for sanctions.
3
The Court will not summarize the factual background related to Count Twelve in No. 11-445 or Count Nineteen in
No. 11-444 because the plaintiff has either conceded summary judgment or voluntarily withdrawn those claims. See
Pl.’s Mem. in Opp’n to Def.’s Mot. Summ. J. on Counts 12 and 20 (“Pl.’s Second 445 Opp’n”) at 2, No. 11-445,
ECF No. 43; Pl.’s Opp’n to Def.’s Mot. Summ. J. on Counts 1, 8, 9, 10, 17, 18, and 20 (“Pl.’s First 444 Opp’n”) at 1
n.2, No. 11-444, ECF No. 26.
5
The plaintiff’s two other remaining claims relate to policies or practices of the CIA that
the plaintiff alleges are in violation of the FOIA, which claims the Court summarized, along with
other policy and practice claims, in its previous memorandum opinion in these related cases. 4
See NSC I, 898 F. Supp. 2d at 243–44, 248–49. Specifically, as labeled in the Court’s previous
opinion, the plaintiff challenges the CIA’s Assignment of Rights Policy and its Document-Level
Exemption Policy. 5 See id.
A. 2009 FOIA Requests
1. Count Twenty in No. 11-444: September 25, 2009 FOIA Request to the
CIA
In a letter dated September 25, 2009, the plaintiff submitted a FOIA request to the CIA
seeking “all [CIA] records, including cross-references, 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.” See Decl. of
Martha M. Lutz (Dec. 13, 2011) (“First Lutz Decl.”) Ex. T at 1, No. 11-444, ECF No. 20-4. By
letter dated October 28, 2009, the CIA acknowledged this request and informed NSC that the
CIA would “search for records existing through the date of this acceptance letter.” First Lutz
Decl. Ex. U at 1, No. 11-444, ECF No. 20-4. By letter dated January 10, 2011, the CIA provided
a final response to the plaintiff’s September 25, 2009 FOIA request, informing the plaintiff that
“[w]e did not locate any records responsive to your request.” First Lutz Decl. Ex. V at 1, No. 11-
444, ECF No. 20-4. The plaintiff administratively appealed the adequacy of the CIA’s search
efforts with respect to this request by letter dated January 21, 2011. See First Lutz Decl. ¶ 57.
4
The Court previously set forth all of the facts regarding the FOIA request that is the subject of Count One in 11-
443, and the Court incorporates that discussion fully here. See NSC I, 898 F. Supp. 2d at 243–44.
5
The Court will not address the facts underlying the plaintiff’s challenge to the CIA’s Cut-Off Date Policy in Count
Twenty-One of No. 11-444 because the plaintiff has agreed to voluntarily withdraw that claim. See Pl.’s Opp’n to
Def.’s Mot. Summ. J. on Counts Eight and Twenty-One (“Pl.’s Second 444 Opp’n”) at 2, No. 11-444, ECF No. 46.
6
By letter dated March 15, 2011, the CIA’s Agency Release Panel (“ARP”) denied the plaintiff’s
appeal, concluding that the CIA’s search efforts were adequate. See id. ¶ 59. In Count Twenty
of No. 11-444, the plaintiff challenges the adequacy of the CIA’s search efforts in response to the
plaintiff’s September 25, 2009 request, including the CIA’s use of an allegedly improper search
cut-off date. See First Am. Compl. (“444 FAC”) ¶¶ 104–110, No. 11-444, ECF No. 6; Mem. in
Supp. Def.’s Mot. for Summ. J. on Counts 1, 8, 9, 10, 17, 18, & 20 (“Def.’s First 444 Mem.”) at
10–11, No. 11-444, ECF No. 20. 6
2. Count Eight in No. 11-445: October 22, 2009 FOIA Request to the DOJ
On October 22, 2009, the plaintiff submitted a FOIA request to the Department of Justice
(“DOJ”) Office of Legal Counsel (“OLC”), seeking “copies of all [DOJ] [OLC] opinions
concerning the FOIA or the Privacy Act.” Decl. of Paul P. Colborn (Oct. 2, 2012) (“Colborn
Decl.”) Ex. A, No. 11-445, ECF No. 29-11. By e-mail dated October 25, 2009, the plaintiff
expanded the scope of this request to include opinions concerning the Federal Records Act, the
Presidential Records Act, or agency records retention policies. See Colborn Decl. Ex. B, No. 11-
445, ECF No. 29-11. On March 27, 2012, the OLC provided a final response to the plaintiff’s
FOIA request, producing twenty records in full and withholding all remaining responsive records
under FOIA Exemption 5 because “[t]hey are protected by the deliberative process and attorney-
client privileges.” Colborn Decl. Ex. C, No. 11-445, ECF No. 29-11. On July 6, 2012, the OLC
sent another letter to the plaintiff, advising it that the OLC was “releasing . . . one of the withheld
records because [OLC] discovered that it was previously released.” Colborn Decl. Ex. D, 11-
445, ECF No. 29-11. After releasing that one record, the OLC informed NSC that it continued to
6
Because this opinion addresses the claims in three separate actions brought by the same plaintiff, for purposes of
organizational clarity only, the Court will generally refer to each case by its civil case number, e.g., “No. 11-443.”
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 First Amended Complaint in No. 11–444, when
cited in short form, will be referred to, for citation purposes only, as “444 FAC.”
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withhold fifty-eight records responsive to its request. Id. In Count Eight of No. 11-445, the
plaintiff challenges the DOJ’s determination to withhold sixteen of the responsive OLC opinions
under FOIA Exemption 5. See First Am. Compl. (“445 FAC”) ¶¶ 62–67, No. 11-445, ECF No.
7; Colborn Decl. Ex. F at 1, No. 11-445, ECF No. 29-11.
3. Counts One, Five, and Six in No. 11-445: December 1, 2009 FOIA
Requests to the CIA, DIA, and ODNI
On December 1, 2009, the plaintiff submitted a FOIA request to the CIA for “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 invocations of exemptions, or
related matters.” See Decl. of Martha M. Lutz (Sept. 26, 2012) (“Third Lutz Decl.”) Ex. A at 1,
No. 11-445, ECF No. 52-1; id. Ex. B at 1, No. 11-445, ECF No. 52-1. On December 8, 2009, the
plaintiff limited the scope of this request by notifying the CIA that it could “limit [its] search for
requests submitted by Michael Ravnitzky to only requests submitted in 2006 and 2009” and that
it could “limit [its] search to the last four years in which requests were received from [each]
requester.” See Third Lutz Decl. Ex. A. On September 22, 2010, the CIA produced seventy
records to the plaintiff in part with redactions made pursuant to FOIA Exemptions 3 and/or 6,
and the CIA also notified the plaintiff that the CIA was withholding seventy-four other
responsive records in their entirety pursuant to FOIA Exemptions 1, 3, and/or 5. See Third Lutz
Decl. Ex. B at 1. In Count One of No. 11-445, the plaintiff challenges all of the CIA’s
withholding determinations made under FOIA Exemptions 1, 3, and/or 5. See 445 FAC ¶¶ 10–
17; Mem. in Supp. Defs.’ Mot. Summ. J. on Counts 1, 2, 3, 5, 6, 7, 8, 9, 10, and 13 (“Defs.’ First
445 Mem.”) at 2, No. 11-445, ECF No. 29; Pl.’s Opp’n to Defs.’ Mot. Summ. J. on Counts 1, 2,
3, 5, 6, 7, 8, 9, 10, and 13 (“Pl.’s First 445 Opp’n”) at 23 n.19, No. 11-445, ECF No. 33.
8
Also on December 1, 2009, the plaintiff submitted FOIA requests to the Defense
Intelligence Agency (“DIA”) and the Office of the Director of National Intelligence (“ODNI”)
for substantially the same category of records sought in the December 1, 2009 FOIA request to
the CIA. The only difference was that, instead of records containing processing notes from “CIA
personnel or contractors,” the request to the DIA sought processing notes from “DIA personnel
or contractors” and the request to the ODNI sought processing notes from “NSA personnel or
contractors.” See Decl. of John F. Hackett (Oct. 1, 2012) (“Hackett Decl.”) Ex. A at 1, No. 11-
445, ECF No. 29-8; Decl. of Alesia Y. Williams (Oct. 1, 2012) (“First Williams Decl.”) Ex. A at
1, No. 11-445, ECF No. 53-1. The plaintiff also narrowed its processing notes requests to the
DIA and the ODNI on December 8, 2009 in the same manner it limited its processing notes
request to the CIA. See Hackett Decl. Ex. B, No. 11-445, ECF No. 29-8; First Williams Decl.
Ex. B, No. 11-445, ECF No. 53-1.
The ODNI produced responsive records to the plaintiff on May 27, 2010 and June 21,
2010, releasing a total of thirty-four pages, in part, with redactions made pursuant to FOIA
Exemptions 2, 3, 5, and 6. See Hackett Decl. ¶¶ 11–12, No. 11-445, ECF No. 29-8. The DIA
produced additional responsive records to the plaintiff in six separate releases from July 25, 2012
to September 28, 2012. See First Williams Decl. ¶¶ 8–13, No. 11-445, ECF No. 29-12. In total,
the DIA released 86 records in full, released 215 records in part, and withheld 45 records in full,
with withholdings made pursuant to FOIA Exemptions 3, 5, and/or 6. See id.; see also First
Williams Decl. Exs. D–I, ECF No. 53-1. In Counts Five and Six of No. 11-445, the plaintiff
challenges the DIA’s and the ODNI’s withholding determinations, respectively, made under
9
FOIA Exemptions 1, 2, 3, 5, and 6. See 445 FAC ¶¶ 38–54; Defs.’ First 445 Mem. at 4–6; Pl.’s
First 445 Opp’n at 6, 17–22, 24. 7
B. 2010 FOIA Requests
1. Counts Seven, Nine, and Ten in No. 11-445: February 6, 2010 FOIA
Requests to the CIA, State Department, and NSA
On February 6, 2010, the plaintiff submitted three substantially identical FOIA
requests—one to the CIA, one to the State Department, and one to the National Security Agency
(“NSA”). The request to the CIA sought “all current training handbooks, manuals, guidelines,
checklists, worksheets, and similar documents provided to [CIA] FOIA and Privacy Act analysts
(both agency employees and contractors).” See Third Lutz Decl. Ex. G at 1, No. 11-445, ECF
No. 52-1. The plaintiff’s requests to the State Department and the NSA were identical, except
that they sought training materials provided to State Department and NSA FOIA and Privacy Act
analysts, respectively. See Decl. of Sheryl L. Walter (Oct. 1, 2012) (“First Walter Decl.”) Ex. 1,
No. 11-445, ECF No. 29-10; Decl. of Pamela N. Phillips (Sept. 28, 2012) (“Phillips Decl.”) Att.
1, No. 11-445, ECF No. 29-13. All three requests also limited the scope of the request to
“documents in current use as of 6 February 2010.” See Third Lutz Decl. Ex. G at 1; Walter Decl.
Ex. 1, at 1; Phillips Decl. Ex. 1, at 1.
The first agency to issue a response to the plaintiff’s requests was the CIA. On May 26,
2010, the CIA issued a final response to the plaintiff, in which it released two documents in full
and withheld twenty-nine other responsive documents in full pursuant to FOIA Exemptions 1, 2,
3, and/or 5. See Third Lutz Decl. ¶ 11, No. 11-445, ECF No. 29-1. In Count Seven of No. 11-
7
The DIA did not originally claim FOIA Exemption 1 in its release letters to the plaintiff, see Williams Decl. Exs.
D–I, but the DIA does assert Exemption 1 in its Vaughn index, see, e.g., Williams Decl. ¶ 19 (“[D]ocuments
numbered V-274, V-276, and V-287 in the Vaughn index contain classified information . . . . and it is appropriately
withheld under FOIA exemption (b)(1).”).
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445, the plaintiff challenges all of the CIA’s withholding determinations under FOIA
Exemptions 1, 2, 3, and/or 5. See 445 FAC ¶¶ 55–61; Defs.’ First 445 Mem. at 7.
The next agency to respond to the plaintiff’s February 6, 2010 FOIA requests was the
NSA. On April 22, 2011, the NSA issued a final response to the plaintiff, in which it released, in
part, over 500 pages of responsive records, with redactions made pursuant to FOIA Exemptions
1, 3, 5, 6, and/or 7; the NSA also withheld one document in its entirety pursuant to FOIA
Exemption 5. See Phillips Decl. ¶ 7; Phillips Decl. Att. 3, No. 11-445, ECF No. 29-13. In Count
Ten of No. 11-445, the plaintiff challenges the adequacy of the NSA’s search efforts in
responding to the February 6, 2010 FOIA request, and in particular the plaintiff challenges the
NSA’s failure to locate templates that are responsive to the request. See 445 FAC ¶¶ 73–77;
Defs.’ First 445 Mem. at 10.
The State Department was the final agency to respond to the plaintiff’s February 6, 2010
FOIA requests. The State Department produced responsive records to the plaintiff in two initial
releases on October 20, 2011 and January 26, 2012. See First Walter Decl. ¶¶ 8–9. In these two
initial releases, the State Department produced a total of 103 records in whole or in part, with
redactions made to seven documents pursuant to FOIA Exemptions 3 and/or 6. See First Walter
Decl. Exs. 5–6, No. 11-445, ECF No. 29-10. By e-mail dated February 4, 2012, the plaintiff
requested that the State Department search for certain records referenced in a document
produced in the first two State Department releases. See First Walter Decl. Ex. 8, No. 11-445,
ECF No. 29-10. In response to this request, the State Department conducted further searching,
and on March 9, 2012 released sixteen responsive records to the plaintiff, in whole or in part.
See First Walter Decl. Ex. 9, No. 11-445, ECF No. 29-10. By letter dated September 26, 2012,
11
after “a further search,” the State Department released one more responsive document to the
plaintiff in full. See First Walter Decl. Ex. 10, No. 11-445, ECF No. 29-10.
These four productions, totaling the release, in whole or in part, of 120 records, however,
were not the final correspondence from the State Department in response to the plaintiff’s FOIA
request. On March 1, 2013, the State Department’s Bureau of Diplomatic Security responded to
the plaintiff’s February 6, 2010 FOIA request, releasing twenty-six responsive records which had
not been previously released. See Notice of Recent Development Regarding Count 9, at 1, No.
11-445, ECF No. 49. According to the State Department, this was “an inadvertent release of
records,” which occurred because “at some point in the processing of Plaintiff’s FOIA request, it
was mistakenly sent to [the Bureau of Diplomatic Security].” See Third Decl. of Sheryl L.
Walter (June 18, 2013) (“Third Walter Decl.”) ¶ 3, No. 11-445, ECF No. 51-1. In Count Nine of
No. 11-445, the plaintiff challenges three aspects of the State Department’s response to its
February 6, 2010 FOIA request: (1) the withholding of certain information from one responsive
record pursuant to FOIA Exemption 3; (2) the adequacy of the State Department’s search efforts;
and (3) the failure of the State Department to release responsive records in an electronic format.
See 445 FAC ¶¶ 68–72; Defs.’ First 445 Mem. at 9.
2. Counts Two and Three in No. 11-445: February 9, 2010 FOIA Requests
to the CIA
On February 4, 2010, the CIA informed the plaintiff that, with respect to his December 1,
2009 FOIA request for FOIA processing notes related to previous FOIA requests, the CIA could
not retrieve FOIA requests by an organization’s name, but only by a person’s name. See Third
Lutz Decl. Ex. C at 1, No. 11-445, ECF No. 52-1. In response, the plaintiff submitted a letter to
the CIA on February 9, 2010, asking the CIA to search for records related to specific previous
FOIA requests submitted by individuals associated with four organizations, including NSC and
12
the James Madison Project (“JMP”). Id. With respect to JMP, the plaintiff requested that the
CIA search for records of processing notes related to twenty-seven specific FOIA requests
submitted by Mark Zaid, Bradley Moss, and Kelly McClanahan. Id. Likewise, with respect to
NSC, the plaintiff requested that the CIA search for records of processing notes related to seven
specific FOIA requests submitted by Kelly McClanahan. See Third Lutz Decl. Ex. C at 1. The
CIA considered these two new FOIA requests and assigned each of them a separate request
identifier number. See Third Lutz Decl. ¶¶ 9–10.
On July 30, 2010, the CIA provided a final response to the plaintiff’s request regarding
previous FOIA requests submitted by Kelly McClanahan on behalf of NSC. See Third Lutz
Decl. Ex. F, No. 11-445, ECF No. 52-1. The CIA released three responsive documents in full
and thirty responsive documents in part, with redactions made pursuant to FOIA Exemptions 3,
5, and/or 6. Third Lutz Decl. ¶ 10. The CIA also withheld seventeen responsive documents in
full pursuant to FOIA Exemptions 1, 3, 5, and/or 6. Id. In Count Three of No. 11-445, the
plaintiff challenges the CIA’s decision to withhold information responsive to this request
pursuant to FOIA Exemptions 1, 3, and 5. See 445 FAC ¶¶ 25–31; Defs.’ First 445 Mem. At 4;
Pl.’s First 445 Opp’n at 23 n.19. On September 29, 2010, the CIA provided a final response to
the plaintiff’s request regarding previous FOIA requests submitted by Mark Zaid, Bradley Moss,
and Kelly McClanahan on behalf of JMP. See Third Lutz Decl. Ex. D, No. 11-445, ECF No. 52-
1. The CIA produced 14 responsive documents in full and 106 responsive documents in part,
with redactions made pursuant to FOIA Exemptions 3, 5, and/or 6. Third Lutz Decl. ¶ 9. The
CIA also withheld 215 responsive documents in full pursuant to FOIA Exemptions 1, 3, and/or 5.
Id. In Count Two of No. 11-445, the plaintiff challenges the CIA’s decision to withhold
13
information responsive to this request pursuant to FOIA Exemptions 1, 3, and 5. See 445 FAC
¶¶ 18–24; Defs.’ First 445 Mem. At 3; Pl.’s First 445 Opp’n at 23 n.19.
3. Count Seventeen in No. 11-444: May 4, 2010 FOIA Requests to the CIA
By letter dated May 4, 2010, the plaintiff submitted a FOIA request to the CIA for two
categories of records: (1) “The 15 FOIA requests received by the [CIA] during Fiscal Year 2008
that were classified as ‘full denials’ because the ‘Records were not Reasonably Described’ in . . .
[the CIA’s] 2008 Annual Report,” and (2) “The 18 FOIA requests received by the CIA during
Fiscal Year 2006 that were classified as ‘full denials’ on the grounds of ‘records not reasonably
described’ in . . . [the CIA’s] 2006 Annual Report.” See First Lutz Decl. Ex. Y at 1, No. 11-444,
ECF No. 20-4. Also on May 4, 2010, the plaintiff submitted a second FOIA request to the CIA,
which sought three other categories of similar records: (1) “The 510 FOIA requests received by
the [CIA] during Fiscal Year 2009 that were classified as ‘full denials’ because they were
considered ‘Improper FOIA Requests for Other Reasons’ in . . . [the CIA’s] 2009 Annual
Report,” (2) “The 290 FOIA requests received by the CIA during Fiscal Year 2008 that were
classified as ‘full denials’ because they were considered ‘Improper FOIA Requests for Other
Reasons’ in . . . [the CIA’s] 2008 Annual Report,” and (3) “The 79 FOIA requests received by
the CIA during Fiscal Year 2006 that were classified as ‘full denials’ because they were
considered ‘not proper FOIA requests for some other reason’ in . . . [the CIA’s] 2006 Annual
Report.” First Lutz Decl. Ex. Z at 1, No. 11-444, ECF No. 20-4. For both of these requests, the
plaintiff specified that “[o]nly the initial request letters and the return CIA correspondence
stating that the requests do not reasonably describe the records sought should be considered
responsive to this request.” First Lutz Decl. Exs. Y; see id. Ex. Z.
On August 7, 2010, the plaintiff’s counsel sent a facsimile to the CIA stating “it would
probably be easier to just consolidate the two requests [submitted on May 4, 2010]” and “I would
14
not object if you chose to combine them and treat them as a single request.” First Lutz Decl. Ex.
AA, No. 11-444, ECF No. 20-4. Hence, on November 17, 2010, the CIA informed the plaintiff
that the CIA was combining the two FOIA requests sent on May 4, 2010 into a single request.
See First Lutz Decl. Ex. BB, No. 11-444, ECF No. 20-4. On August 31, 2011, the CIA provided
a final response regarding this combined FOIA request, in which it released five responsive
documents in full, released 1,010 responsive documents in part with redactions made pursuant to
FOIA Exemptions 3, 5, and/or 6, and withheld three documents in full pursuant to FOIA
Exemptions 3 and/or 6. See First Lutz Decl. Ex. CC at 2, No. 11-444, ECF No. 20-4; First Lutz
Decl. ¶ 68. 8 After the plaintiff requested by e-mail to the DOJ that the CIA confirm the totality
of its production, the CIA provided ten additional responsive documents in part with redactions
made pursuant to FOIA Exemptions 3 and 6. See First Lutz Decl. ¶ 69. In Count Seventeen of
No. 11-444, the plaintiff challenges the CIA’s decision to withhold information responsive to
this combined request pursuant to FOIA Exemptions 3 and 5. See 444 FAC ¶¶ 87–93; Def.’s
First 444 Mem. at 8; Pl.’s Opp’n to Def.’s Mot. Summ. J. on Counts 1, 8, 9, 10, 17, 18, and 20
(“Pl.’s First 444 Opp’n”) at 30–35, No. 11-444, ECF No. 26. In Count Seventeen, the plaintiff
also challenges the failure of the CIA to release responsive records in an electronic format. See
Pl.’s First 444 Opp’n at 39–40.
4. Count Three in No. 11-443: May 12, 2010 FOIA Request to the CIA
On May 12, 2010, the plaintiff submitted a FOIA request to the CIA, which sought “all
Tables of Contents (‘TOCs’) from the [CIA] in-house journal Studies in Intelligence.” See Decl.
of Martha M. Lutz (Aug. 8, 2012) (“Second Lutz Decl.”) Ex. A at 1, No. 11-443, ECF No. 27-1.
Via telephone on June 4, 2010, the plaintiff clarified that it was requesting “all classified ‘TOCs,’
8
The CIA did not claim FOIA Exemption 5 in its August 31, 2011 final response, see First Lutz Decl. Ex. CC at 2,
but the CIA is now claiming FOIA Exemption 5 in this litigation, see First Lutz Decl. ¶ 68.
15
and any unclassified ‘TOCs,’ that were not available on the CIA website.” Second Lutz Decl.
Ex. B at 1, No. 11-443, ECF No. 27-1. On December 5, 2011, the CIA provided a final response
to the plaintiff’s May 12, 2010 FOIA request, releasing 43 responsive documents in full and 131
responsive documents in part, with redactions made pursuant to FOIA Exemptions 1 and/or 3.
See Second Lutz Decl. Ex. C at 1, No. 11-443, ECF No. 27-1. By e-mail on December 30, 2011,
the plaintiff notified the CIA’s counsel that it believed there were several records missing from
the CIA’s production. See Second Lutz Decl. ¶ 9, No. 11-443, ECF No. 27-1. In response, the
CIA conducted a supplemental search and, by letters dated February 7, 2012 and February 14,
2012, the CIA released to the plaintiff twenty-nine additional responsive TOCs, in part, with
redactions made pursuant to FOIA Exemptions 1 and 3. See Second Lutz Decl. ¶ 9; Second Lutz
Decl. Exs. D–E, No. 11-443, ECF No. 27-1. In its February 7, 2012 communication, the CIA
also released to the plaintiff certain information that had been redacted from previously released
documents. See Second Lutz Decl. Ex. D at 2. In Count Three of No. 11-443, the plaintiff
challenges the CIA’s withholding of information responsive to the May 12, 2010 FOIA request
under FOIA Exemptions 1 and 3. See Compl. (“443 Compl.”) ¶¶ 29–33, No. 11-443, ECF No.
1; Mem. in Supp. Def.’s Mot. Summ J. on Count Three (“Def.’s First 443 Mem.”) at 1, ECF No.
27. 9
5. Count Nine in No. 11-444: May 13, 2010 FOIA Request to the CIA
By letter dated May 13, 2010, the plaintiff submitted a FOIA request to the CIA, which
sought “a representative sample of [CIA] analytical reports and memoranda presenting
9
The plaintiff also originally raised a challenge to the adequacy of the CIA’s search in response to the FOIA request
at issue in Count Three in No. 11-443. See Pl.’s In Camera Opp’n to Def.’s Mot. Summ. J. on Count Three (“Pl.’s
First 443 Opp’n”) at 3–4, 20, No. 11-443, ECF No. 58. Specifically, based on certain discrepancies between the
produced articles and the articles present on the CIA’s website, the plaintiff challenged the CIA’s “refusal to search
for the full Table of Contents for the June 2009 issue [of Studies in Intelligence] and the correct Table of Contents
for the Summer 1973 issue.” Id. at 20. In a subsequent filing, however, the plaintiff notified the Court that it
“withdraws its challenge to the adequacy of [the CIA’s] search” in No. 11-443. See Notice of Clarification at 2, No.
11-443, ECF No. 60.
16
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’).” First Lutz Decl. Ex. M, No. 11-444, ECF No. 20-3. In this letter, NSC provided
“guidelines” to the CIA regarding “what we consider a ‘representative sample,’” which included
(1) “[o]nly final official reports or memoranda that discuss an MPAC/OLA analyst’s conclusions
about a target’s psychology,” (2) “[n]o more than twenty reports/memoranda for each year,”
(3) “[f]our reports/memoranda for each year (unless less were created that year) for individuals
in each category of intelligence target,” and (4) “[r]easonable variety in the intelligence targets
wherever possible (e.g., foreign government officials should be from a variety of foreign
governments, terrorist leaders should be from different terrorist organizations, etc.).” Id. at 1–2.
As to the fourth guideline, NSC further stated that “[f]or the foreign government officials, we
would also appreciate if possible a variety of the type of officials (e.g., some heads of state, some
intelligence officials, some law enforcement officials, some financial officials, etc.).” Id. at 2.
The plaintiff’s letter also stated “[y]ou may limit your search to records created since 2000, but
we do not have any particular intelligence targets in mind, since the purpose of this information
is to analyze the style and methodology of the CIA’s leadership analysts.” Id. at 1.
The CIA provided a final response to the plaintiff’s request on June 23, 2010, stating
“[w]e cannot accept your FOIA request in its current form, because it would require the Agency
to perform an unreasonably burdensome search.” First Lutz Decl. Ex. N at 1, No. 11-444, ECF
No. 20-3. Citing “the breadth and lack of specificity of [NSC’s] request,” the CIA informed the
plaintiff that “[t]he FOIA does not provide a mechanism to perform research.” Id. The CIA also
“encourage[d] [NSC] to refine the scope of [its] request (such as including a narrower time frame
17
for, and more specific descriptions of, the information you seek) to enable [the CIA] to conduct a
reasonable search for responsive information.” Id. In Count Nine of No. 11-444, the plaintiff
contends that the CIA improperly refused to process this May 13, 2010 FOIA request. See 444
FAC ¶¶ 46–50; Pl.’s First 444 Opp’n at 16–18.
6. Count Eight in No. 11-444: July 5, 2010 FOIA Request to the CIA
On July 5, 2010, the plaintiff submitted a FOIA request to the CIA for “a record that
would indicate the ten individuals responsible for the most FOIA requests submitted (each) in
Fiscal Years 2008, 2009, and 2010.” See First Lutz Decl. Ex. K at 1, No. 11-444, ECF No. 20-2.
“In other words,” the plaintiff continued, “we seek a list, index, printout, or similar document
from which we could determine which individual submitted the most FOIA requests each year,
which individual submitted the second most FOIA requests each year, and so forth down to the
tenth most prolific requester.” Id. In addition to (1) an index of the ten most prolific FOIA
requesters, the plaintiff also proposed to the CIA three alternative means by which to obtain the
same information: (2) “[a]n index including all requesters for each year,” (3) “FOIA request
letters from the ten most prolific requesters for each year,” or (4) “[a]ll FOIA request letters
submitted to the CIA for each year.” Id. at 1–2. On July 22, 2010, the CIA responded to this
request, stating “[w]e . . . 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.” First Lutz Decl. Ex. L at 1, No. 11-444, ECF No. 20-3. As a
result, the CIA informed the plaintiff “we must decline to process this request.” Id.On February 29, 2012, however, “the CIA advised plaintiff that it reconsidered [the July
5, 2010 FOIA request],” and “advised that it could process plaintiff’s fourth option, i.e., all FOIA
requests submitted to the Agency for each of the three requested years, in paper form.” Decl. of
Martha M. Lutz (Mar. 18, 2013) (“Seventh Lutz Decl.”) ¶ 7, No. 11-444, ECF No. 43-1. The
18
CIA also “determined that NSC constituted an ‘all other’ requester for fee category purposes and
stated that . . . plaintiff would be required to pay the duplication costs associated with processing
the request, which were estimated to exceed $950.” Id. In connection with these duplication
costs, “[t]he Agency advised plaintiff that a commitment to pay fees and an advance payment of
$250 were required ‘prior to the processing of [its] request.’” Id. (emphasis in original). Finally,
the CIA’s letter stated that “if the Agency did not received the fee commitment and advance
payment within 45 days it would administratively close the request.” Id. NSC never provided a
fee commitment or an advance payment, and therefore the CIA closed the request. Id. In Count
Eight of No. 11-444, the plaintiff challenges the CIA’s refusal “to produce the record requested
as ‘option 2’ in NSC’s request,” i.e., “an index including all requesters for each year.” See Pl.’s
Opp’n to Def.’s Mot. Summ. J. on Counts Eight & Twenty-One (“Pl.’s Second 444 Opp’n”) at 3-
4, No. 11-444, ECF No. 46; see also 444 FAC ¶¶ 41–45.
7. Count One in No. 11-444: August 8, 2010 FOIA Requests to the CIA
By letters dated August 8, 2010, the plaintiff submitted four FOIA requests to the CIA,
seeking “a database listing of all the FOIA requesters from FY 2008–present that [the CIA has]
classified as” either “educational or scientific,” “commercial,” “all other,” or “news media.” See
First Lutz Decl. Exs. A–D, No. 11-444, ECF No. 20-2. Each request sought a database listing as
to each of the four fee requester categories. See id. By letters dated September 30, 2010, the
CIA refused to process these requests, stating that “[t]he FOIA does not require federal agencies
to create a record, collect information, conduct research, or analyze data.” See First Lutz Decl.
Exs. E–H, No. 11-444, ECF No. 20-2. By facsimile dated October 2, 2010, the plaintiff
administratively appealed the CIA’s refusal to process these four FOIA requests, contending “the
CIA has already tacitly admitted that it possesses the ability to sort its FOIA database by
requester category, as evidenced by the publication in its FOIA Electronic Reading Room of the
19
FY 2003 ‘commercial’ requesters.” See First Lutz Decl. Ex. I at 1, No. 11-444, ECF No. 20-2.
The CIA responded on October 21, 2010, stating for each of the four FOIA requests that, “since
we did not provide you with appeal rights, we cannot accept your appeal.” First Lutz Decl. Ex.
J, No. 11-444, ECF No. 20-2. In Count One of No. 11-444, the plaintiff challenges the CIA’s
refusal to process its August 8, 2010 FOIA requests. See 444 FAC ¶¶ 5–10; Pl.’s First 444
Opp’n at 10–14.
C. 2011 FOIA Requests
1. Count Eighteen in No. 11-444: January 26, 2011 FOIA Request to the
CIA
By letter dated January 26, 2011, the plaintiff submitted a FOIA request to the CIA
seeking “a copy of all [CIA] records pertaining to the search tools and indices available to the
Office of Information Management Services (‘IMS’) for conducting searches of its own records
in response to FOIA requests.” See First Lutz Decl. Ex. Q at 1, No. 11-444, ECF No. 20-3. The
plaintiff clarified later in this request that it was seeking “records that describe or discuss the
search tools and indices that the IMS (as a CIA component) can choose between when devising a
search strategy for IMS records.” Id. The plaintiff further specified that the request was “limited
to only those search tools and indices that would be personally used by IMS personnel to search
IMS records systems.” Id. Finally, the plaintiff specified two categories of records that would
be responsive to the request: (1) “Records which describe the search tools and indices,” and (2)
“The actual contents of the indices.” Id. On May 26, 2011, the CIA provided a final response to
the plaintiff’s request. See First Lutz Decl. Ex. S, No. 11-444, ECF No. 20-3. The CIA located
three documents responsive to the plaintiff’s request, one of which it released in full, and two of
which it released in part, with redactions made pursuant to FOIA Exemption 3. See id. In Count
Eighteen of No. 11-444, the plaintiff challenges three aspects of the CIA’s response to the
20
plaintiff’s January 26, 2011 FOIA request: (1) the decision to withhold information under FOIA
Exemption 3; (2) the adequacy of the CIA’s search efforts; and (3) the failure of the CIA to
release responsive records in an electronic format, as requested. See 444 FAC ¶¶ 94–98; Pl.’s
First 444 Opp’n at 24–26, 35–40.
2. Count Thirteen in No. 11-445: February 11, 2011 FOIA Request to the
CIA
On February 11, 2011, the plaintiff submitted a FOIA request to the CIA, which sought
“all [CIA] records associated with the administrative processing of [two specific FOIA requests],
which were referred to the CIA by the Federal Bureau of Investigation.” See Third Lutz Decl.
Ex. I at 1, No. 11-445, ECF No. 52-1. On October 7, 2011, the CIA provided a final response to
this request, releasing two responsive records in part, with redactions made pursuant to FOIA
Exemption 3, and withholding seven responsive records in full pursuant to FOIA Exemptions 3
and 5. See Third Lutz Decl. ¶ 12; Third Lutz Decl. Ex. J at 1, No. 11-445, ECF No. 52-1. In
Count Thirteen of No. 11-445, the plaintiff challenges the CIA’s decision to withhold responsive
information pursuant to FOIA Exemptions 3 and 5. See 445 FAC ¶¶ 88–92; Defs.’ First 445
Mem. at 10-11.
3. Count Ten in No. 11-444: February 16, 2011 FOIA Request to the CIA
Finally, by letter dated February 16, 2011, the plaintiff submitted a FOIA request to the
CIA, seeking “a copy of all [CIA] records pertaining to the IBM supercomputer ‘Watson.’” First
Lutz Decl. Ex. O at 1, No. 11-444, ECF No. 20-3. On March 2, 2011, the CIA responded to the
plaintiff that “[w]e cannot accept your FOIA request in its current form because it would require
the Agency to perform an unreasonably burdensome search.” See First Lutz Decl. Ex. P, No. 11-
444, ECF No. 20-3. Citing “the breadth and lack of specificity of [the plaintiff’s] request” and
“the way in which [the CIA’s] records systems are configured,” the CIA concluded that “the
21
Agency cannot conduct a reasonable search for information responsive to your request.” Id. The
CIA “encourage[d] [the plaintiff] to refine the scope of [its] request (such as contracts, if they
exist, which would explain records pertaining to ‘Watson’) to enable [the CIA] to conduct a
reasonable search for responsive information.” Id. In Count Ten of No. 11-444, the plaintiff
challenges the CIA’s refusal to process it February 16, 2011 FOIA request. See 444 FAC ¶¶ 51–
55; Pl.’s First 444 Opp’n at 19–24.
D. Facts Related to the Plaintiff’s Motion for Sanctions
In December 2011, an unidentified third party provided the plaintiff’s counsel with two
CIA documents, which counsel concluded may contain classified information. See Pl.’s Mot. to
Compel Production (“Pl.’s First Mot. to Compel”) at 1, No. 11-443, ECF No. 26. Since the
documents were ostensibly relevant to the plaintiff’s claim in Count Three of No. 11-443,
challenging the CIA’s withholding of responsive information from tables of contents for the
CIA’s in-house journal Studies in Intelligence, see supra Part I.B.4, plaintiff’s counsel contacted
government counsel for the CIA, who referred plaintiff’s counsel to the FBI. See Pl.’s First Mot.
to Compel at 1. In January 2012, an FBI field agent met with plaintiff’s counsel, at which time
plaintiff’s counsel signed a non-disclosure agreement as to any classified material contained in
the two CIA documents and also turned over paper and electronic versions of the two records to
the FBI. See id. at 2. In that meeting, plaintiff’s counsel requested that the FBI return to him
redacted versions of the two documents, with all classified information deleted. Id. In a later
meeting held in June 2012, the FBI informed plaintiff’s counsel that they would not be releasing
redacted versions of the documents to him. See id. Since plaintiff’s counsel wished to submit
the non-classified portions of the two documents to the Court, the plaintiff filed a motion on
August 3, 2012 to compel the CIA to “provid[e] [plaintiff’s counsel] with redacted copies” of the
two documents in question. See id. at 4. The CIA opposed the relief sought by the plaintiff,
22
contending that “[plaintiff’s counsel’s] alleged interactions with the FBI are well outside the
scope of this action” since “[t]he FBI is not a party to this case” and “the FBI’s interactions were
with [plaintiff’s counsel] in his individual capacity.” Def.’s Opp’n to Pl.’s Mot. to Compel at 1–
2, No. 11-443, ECF No. 28.
On August 15, 2012, the Court granted the plaintiff’s motion to compel over the CIA’s
objection and directed the CIA to provide the plaintiff “a copy of each of the two CIA documents
referenced in the plaintiff’s motion, if possible, with all classified information redacted
therefrom.” See Minute Order dated Aug. 15, 2012, No. 11-443. On September 3, 2012, the
plaintiff filed a motion, asking the Court “to compel CIA to comply with [the Court’s] earlier
Order.” See Pl.’s Mot. to Compel Compliance with Court’s 15 Aug. 2012 Order (“Pl.’s Second
Mot. to Compel”) at 2, No. 11-443, ECF No. 31. In that motion, the plaintiff stated that
“[i]nstead of redacting only the classified information,” the CIA “redacted all information it
considered exempt under [FOIA] Exemptions (b)(1) and/or (b)(3).” Id. at 1–2. Therefore, the
plaintiff asked the Court to order the CIA to produce “copies of these records with only the
classified information redacted, as the Court ordered.” Id. at 2. On September 21, 2012, the
Court granted the plaintiff’s motion in part and ordered the CIA to produce redacted versions of
the two documents to the plaintiff, clearly indicating on each document which portions of the
document were classified—and therefore redacted pursuant to FOIA Exemption 1—and which
portions were redacted pursuant to FOIA Exemption 3. See Order dated Sept. 21, 2012. The
Court did not order the CIA to release any information from these two documents that the CIA
believed were protected from disclosure by the CIA Act or by Executive Order 13,525 as
classified in the interest of national security.
23
The CIA produced redacted versions of the two documents as instructed, yet the parties
continued to disagree about whether the CIA had complied with the Court’s Order. See Joint
Status Report at 1, No. 11-443, ECF No. 35. Specifically, the plaintiff complained, on
September 3, 2012, that the CIA had marked certain information as being exempt under
Exemption 3, which the CIA’s Vaughn index had stated was classified, and vice-versa. See id. at
2–3. Plaintiff’s counsel had notified the CIA’s counsel of this inconsistency in an e-mail five
days before the plaintiff brought the issue to the attention of the Court. See Pl.’s Reply to Opp.
To Mot. To Compel Ex. D, No. 11-443, ECF No. 33-2 (Aug. 29, 2012 e-mail from plaintiff’s
counsel to CIA’s counsel stating “I think you must have [the classified material and the CIA Act
redactions] backwards”). The CIA, however, maintained that “[t]he documents the CIA
produced in response to the Court’s order reflect the current status of the information they
contain.” See Joint Status Report at 2. In light of the apparent discrepancy, the plaintiff once
again asked for relief, seeking an order directing the CIA “to take whatever steps are necessary
to make its redactions in these releases consistent with its previous presentations to the Court.”
Id. at 4.
To resolve this ongoing dispute, the Court held a status conference on October 12, 2012.
At that status conference, plaintiff’s counsel once again asserted that the CIA had gotten the two
categories of redactions “backwards.” See Tr. of Status Conference (Oct. 12, 2012) at 13:1–2,
No. 11-443, ECF No. 69; see also id. at 16:9–12 (“[E]verything that is listed as classified in the
documents is listed as unclassified [in the Vaughn index]. It looks like it was a simple
administrative error.”). The CIA’s counsel, however, maintained once again that “we’ve clearly
identified for [plaintiff’s counsel] in our Vaughn index and in the two documents that we
produced pursuant to the Court’s order exactly what’s classified and what’s subject to the CIA
24
Act.” Id. at 19:15–19. The Court asked the CIA’s counsel in this regard: “Do you need to
update your Vaughn index?” to which he replied “I need to check with my client agency, but I
don’t believe so.” Id. at 26:18–21. The Court further stated, “[a]s officers of the court, if [the
CIA’s lawyers] find out that some information that’s been presented is incorrect, they have an
ongoing and continuing obligation to correct themselves.” Id. at 26:1–4. Following the October
12, 2012 status conference, and based on CIA counsel’s representations that the redactions were
correctly designated, the Court entered a minute order stating that “the plaintiff is entitled to rely
on the designations of information in the two . . . indices at issue, as provided by the defendant,
regarding whether redacted information in those documents is either classified or subject to
protection under the CIA Act.” Minute Order dated Oct. 12, 2012, No. 11-443.
On October 22, 2012, the CIA submitted a notice to the Court, stating that “[i]n [the
CIA’s] earlier production, redactions were marked with either a ‘1’ or ‘2,’ which appears to have
created some confusion as to whether the redacted information was withheld because it is
classified, subject to the CIA Act, or both.” See Notice at 1, No. 11-443, ECF No. 40. Thus,
ostensibly “[i]n order to clarify the issue and provide Plaintiff’s counsel with clear documents
upon which he can rely . . . [the CIA] now produced copies of the two records with each
redaction marked clearly as ‘Classified’ or ‘CIA Act’ protected.” Id. The CIA stated that it was
“hopeful the updated marking will resolve any lingering confusion.” Id. at 1. In the versions of
the two documents attached to the CIA’s October 22, 2012 notice, however, the CIA had
reversed its designations, as compared to its September 27, 2012 filing. Compare ECF Nos. 35-
1, 35-2, with ECF Nos. 40-1, 40-2. The CIA’s notice did now acknowledge that its previous
representations had been in error but, just as plaintiff’s counsel had warned two months earlier,
25
information that had earlier been marked as classified was now marked as withheld under the
CIA Act, and vice-versa. See id.
As a result, the plaintiff filed a motion for sanctions against the CIA, contending that the
CIA had “engaged in an extended campaign of misrepresentation to both [the plaintiff] and the
Court regarding the nature of the information it redacted from the two documents at issue.” See
Pl.’s Mot. for Sanctions at 1, No. 11-443, ECF No. 50. The CIA opposed the motion and
submitted, at the Court’s direction, two sworn declarations explaining what had caused the CIA
mistakenly for weeks to defend the accuracy of its designations. Specifically, the CIA’s chief of
its Litigation Support Unit, Martha Lutz, stated that the CIA’s error “was the product of internal
miscommunication rather than bad faith.” See Decl. of Martha M. Lutz (Feb. 25, 2013) (“Sixth
Lutz Decl.”) ¶ 4, No. 11-443, ECF No. 61-1. Ms. Lutz explained that, when the CIA’s
information review officer (“IRO”) reviewed the two documents in question, she used a notation
system in which she wrote “(b)(3) methods” in the margins of the documents next to certain
redacted information. See id. ¶ 7. These notations were intended to convey that the specified
redactions were protected under the National Security Act as classified intelligence sources or
methods—and thus also protected by FOIA Exemption 1 as classified information—but the
CIA’s counsel “interpreted this notation system to mean that redactions marked . . . as ‘(b)(3)
methods’ were those protected by FOIA Exemption (b)(3)” under the CIA Act. See id. ¶¶ 7–8.
“Based on this misunderstanding, the CIA attorney incorrectly cited some of the justifications for
redacting the material to the DOJ attorney, who in turn shared that information with plaintiff.”
Id. ¶ 9.
E. Procedural History
The plaintiff filed the Complaints in each of these three actions on February 28, 2011,
and, shortly thereafter, filed a First Amended Complaint in Nos. 11-444 and 11-445 on March
26
21, 2011. On May 20, May 27, and June 3, 2011, the CIA filed partial motions to dismiss in No.
11-443, 11-444, and 11-445, respectively. These three motions, filed pursuant to Federal Rules
of Civil Procedure 12(b)(1) and 12(b)(6), collectively moved for dismissal of twenty-five of the
forty-five claims originally alleged by the plaintiff, and the motions became ripe on July 21,
2011. While these three motions to dismiss were pending, the Court ruled on ten other, non-
dispositive motions, including motions to stay, to compel, and to bifurcate.
On October 17, 2012, in a lengthy opinion, the Court granted in part and denied in part
the CIA’ three partial motions to dismiss. See NSC I, 898 F. Supp. 2d 233. Specifically, the
Court dismissed all but three of the plaintiff’s twenty-four policy-or-practice claims—including
all of the plaintiff’s claims under the Mandamus Act and the Administrative Procedure Act. See
id. at 290. In addition to denying the government’s motion to dismiss with respect to three of the
plaintiff’s policy-or-practice claims (the Assignment of Rights Policy, the Cut-Off Date Policy,
and Document-Level Exemption Policy), the Court also denied the government’s motion to
dismiss with respect to Count One in No. 11-443, which challenged the CIA’s refusal to process
a FOIA request that was assigned to the plaintiff by an organization called the James Madison
Project. See id. at 290–91.
On March 21, 2013, this Court stayed all three actions until all dispositive motions were
fully briefed. Between December 20, 2011 and May 17, 2013, a total of eight motions or cross-
motions for summary judgment were filed across these three related actions by all parties. The
last of these motions became ripe on June 11, 2013. Additionally, on November 21, 2012, the
plaintiff filed a motion for leave to file a second amended complaint in No. 11-445, and on
January 11, 2013, the plaintiff filed a motion for sanctions in No. 11-443. Thus, currently
pending before the Court in these related actions are ten motions: eight motions or cross-motions
27
for summary judgment, one motion for leave to file a second amended complaint, and one
motion for sanctions. For the reasons discussed below, the Court grants in part and denies in part
the defendants’ six motions for summary judgment, grants the plaintiff’s cross-motions for
summary judgment, denies the plaintiff’s motion for leave to file a second amended complaint,
and denies the plaintiff’s motion for sanctions. 10
II. LEGAL STANDARDS
A. FOIA
Congress enacted the FOIA, 5 U.S.C. § 552, “‘to pierce the veil of administrative secrecy
and to open agency action to the light of public scrutiny.’” Am. Civil Liberties Union v. U.S.
Dep’t of Justice, 655 F.3d 1, 5 (D.C. Cir. 2011) (quoting Dep’t of the Air Force v. Rose, 425 U.S.
352, 361 (1976)). The Supreme Court has explained that the FOIA is “a means for citizens to
know ‘what their Government is up to.’ This phrase should not be dismissed as a convenient
formalism. It defines a structural necessity in a real democracy.” Nat’l Archives & Records
Admin. v. Favish, 541 U.S. 157, 171–172 (2004) (citation and internal quotation marks omitted).
“The basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a
democratic society, needed to check against corruption and to hold the governors accountable to
the governed.” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978). As a result, the
FOIA requires federal agencies to release all records responsive to a request for production. See
5 U.S.C. § 552(a)(3)(A). Federal courts are authorized under the FOIA “to enjoin the agency
from withholding agency records and to order the production of any agency records improperly
withheld from the complainant.” Id. § 552(a)(4)(B).
10
In support or opposition to these ten pending motions, the six agency defendants have collectively submitted a
total of nineteen sworn declarations. These include eleven declarations from the CIA (including eight separate
declarations authored by Martha M. Lutz), three declarations from the State Department, two declarations from the
DIA, and one declaration each from the DOJ, ODNI, and NSA.
28
This strong interest in transparency must be tempered, however, by the “legitimate
governmental and private interests [that] could be harmed by release of certain types of
information.” United Techs. Corp. v. U.S. Dep’t of Def., 601 F.3d 557, 559 (D.C. Cir. 2010)
(internal quotation marks omitted); see also Critical Mass Energy Project v. Nuclear Regulatory
Comm’n, 975 F.2d 871, 872 (D.C. Cir. 1992) (en banc). Accordingly, Congress included nine
exemptions permitting agencies to withhold information from FOIA disclosure. See 5 U.S.C.
§ 552(b). “These exemptions are explicitly made exclusive, and must be narrowly construed.”
Milner v. Dep’t of the Navy, 131 S. Ct. 1259, 1262 (2011) (citations and internal quotation marks
omitted); see also Pub. Citizen, Inc. v. Office of Mgmt. & Budget, 598 F.3d 865, 869 (D.C. Cir.
2010) (“FOIA allows agencies to withhold only those documents that fall under one of nine
specific exemptions, which are construed narrowly in keeping with FOIA’s presumption in favor
of disclosure.” (citations omitted)). When a FOIA requester properly exhausts its administrative
remedies, it may file a civil action challenging an agency’s response to its request. See 5 U.S.C.
§ 552(a)(4)(B); Wilbur v. CIA, 355 F.3d 675, 677 (D.C. Cir. 2004). Once such an action is filed,
the agency generally has the burden of demonstrating that its response to the plaintiff’s FOIA
request was appropriate.
When an agency’s response to a FOIA request is to withhold responsive records, either in
whole or in part, the agency “bears the burden of proving the applicability of claimed
exemptions.” Am. Civil Liberties Union v. U.S. Dep’t of Def. (“ACLU/DOD”), 628 F.3d 612,
619 (D.C. Cir. 2011). “The government may satisfy its burden of establishing its right to
withhold information from the public by submitting appropriate declarations and, where
necessary, an index of the information withheld.” Am. Immigration Lawyers Ass’n v. U.S. Dep’t
of Homeland Sec., 852 F. Supp. 2d 66, 72 (D.D.C. 2012) (citing Vaughn v. Rosen, 484 F.2d 820,
29
827–28 (D.C. Cir. 1973)). “If an agency’s affidavit describes the justifications for withholding
the information with specific detail, demonstrates that the information withheld logically falls
within the claimed exemption,” and “is not contradicted by contrary evidence in the record or by
evidence of the agency’s bad faith, then summary judgment is warranted on the basis of the
affidavit alone.” ACLU/DOD, 628 F.3d at 619. “Ultimately, an agency’s justification for
invoking a FOIA exemption is sufficient if it appears ‘logical or ‘plausible.’” Id. (internal
quotation marks omitted) (quoting Larson v. Dep’t of State, 565 F.3d 857, 862 (D.C. Cir. 2009)).
When a requester challenges an agency’s response based on the adequacy of the search
performed, “[t]o prevail on summary judgment . . . the defending ‘agency must show beyond
material doubt . . . that it has conducted a search reasonably calculated to uncover all relevant
documents.’” Morley v. CIA, 508 F.3d 1108, 1114 (D.C. Cir. 2007) (quoting Weisberg v. U.S.
Dep’t of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983)). “In order to obtain summary judgment
the agency must show that it made a good faith effort to conduct a search for the requested
records, using methods which can be reasonably expected to produce the information requested.”
Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir. 1990). “Summary judgment may be
based on affidavit, if the declaration sets forth sufficiently detailed information ‘for a court to
determine if the search was adequate.’” Students Against Genocide v. Dep’t of State, 257 F.3d
828, 838 (D.C. Cir. 2001) (quoting Nation Magazine v. U.S. Customs Serv., 71 F.3d 885, 890
(D.C. Cir. 1995)).
Finally, the D.C. Circuit has 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) (emphasis in original);
30
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.
B. Summary Judgment
“‘FOIA cases typically and appropriately are decided on motions for summary
judgment.’” Georgacarakos v. FBI, 908 F. Supp. 2d 176, 180 (D.D.C. 2012) (quoting Defenders
of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009)). With respect to the
applicability of exemptions and the adequacy of an agency’s search efforts, summary judgment
may be based solely on information provided in the agency’s supporting declarations. See, e.g.,
ACLU/DOD, 628 F.3d at 619; Students Against Genocide, 257 F.3d at 838. With respect to
policy-or-practice claims, the moving party must establish “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a).
Summary judgment is properly granted against a party who, “after adequate time for discovery
and upon motion, . . . fails to make a showing sufficient to establish the existence of an element
essential to that party’s case, and on which that party will bear the burden of proof at trial.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The burden is on the moving party to
demonstrate that there is an “absence of a genuine issue of material fact” in dispute. Id. at 323.
In ruling on a motion for summary judgment, the Court must draw all justifiable
inferences in favor of the nonmoving party and shall accept the nonmoving party’s evidence as
true. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The Court is only required to
consider the materials explicitly cited by the parties, but may on its own accord consider “other
materials in the record.” FED. R. CIV. P. 56(c)(3). For a factual dispute to be “genuine,” the
31
nonmoving party must establish more than “[t]he mere existence of a scintilla of evidence in
support of [its] position,” Liberty Lobby, 477 U.S. at 252, and cannot rely on “mere allegations”
or conclusory statements, see Veitch v. England, 471 F.3d 124, 134 (D.C. Cir. 2006); Greene v.
Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999); Harding v. Gray, 9 F.3d 150, 154 (D.C. Cir. 1993);
accord FED. R. CIV. P. 56(e). Rather, the nonmoving party must present specific facts that would
enable a reasonable jury to find in its favor. See, e.g., FED. R. CIV. P. 56(c)(1). “If the evidence
is merely colorable, or is not significantly probative, summary judgment may be granted.”
Liberty Lobby, 477 U.S. at 249–50 (citations omitted).
C. Leave to File Amended Complaint
Federal Rule of Civil Procedure 15 provides that, if more than twenty-one days have
passed since the filing of an original complaint, “a party may amend its [complaint] only with the
opposing party’s written consent or the court’s leave.” FED. R. CIV. P. 15(a)(2). “The court
should freely give leave when justice so requires.” Id. The D.C. Circuit has held that “it is an
abuse of discretion to deny leave to amend unless there is sufficient reason, such as ‘undue delay,
bad faith or dilatory motive[,] repeated failure to cure deficiencies by [previous] amendments[,]
or futility of amendment.” Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996) (internal
quotation marks omitted). In this regard, “[c]ourts will properly deny a motion to amend when it
appears that the plaintiff is using Rule 15 to make the complaint a moving target, to salvage a
lost case by untimely suggestion of new theories of recovery, [or] to present theories seriatim in
an effort to avoid dismissal.” Minter v. Prime Equip. Co., 451 F.3d 1196, 1206 (10th Cir. 2006)
(citations and internal quotation marks omitted). When a plaintiff seeks leave to amend its
complaint in “an attempt to evade the effect of [the Court’s] Memorandum Opinion and Order
dismissing the plaintiff’s claims against the moving defendants, the request will be denied.” See
Kurtz v. United States, No. 10-1270, 2011 WL 2457923, at *1 n.1 (D.D.C. June 20, 2011) (citing
32
Brown v. FBI, 744 F. Supp. 2d 120, 123 (D.D.C. 2010)); see also Becker v. District of Columbia,
258 F.R.D. 182, 185 (D.D.C. 2009) (“Waiting to move to amend until after the close of
discovery and after the filing of or ruling upon dispositive motions has been considered an undue
delay.”).
III. DISCUSSION
A wide variety of issues have been presented to the Court in the ten motions currently
pending. The Court will begin by explaining why it denies the plaintiff’s motion for leave to file
a second amended complaint in No. 11-445. The Court will then discuss the plaintiff’s Motion
for Sanctions, filed in No. 11-443. Third, the Court will address the plaintiff’s two remaining
policy-or-practice claims, which challenge the CIA’s Assignment of Rights Policy and
Document-Level Exemption Policy. Fourth, the Court will discuss the plaintiff’s claims relating
to the adequacy of the CIA’s, the State Department’s, and the NSA’s search efforts in response
to specific FOIA requests. Fifth, the Court will discuss the plaintiff’s claims regarding the CIA’s
refusal to process certain FOIA requests. Sixth, the Court will discuss the plaintiff’s claims
regarding the defendants’ decisions to withhold certain information pursuant to FOIA
Exemptions 1, 2, 3, 5, and 6. Seventh, the Court will discuss the plaintiff’s claim that the State
Department and the CIA should have provided it with electronic versions of responsive records.
Finally, the Court will determine whether the defendants have satisfied their burden to produce
all non-exempt, reasonably segregable material to the plaintiff.
A. Motion for Leave to Amend
In its motion for leave to file an amended complaint, the plaintiff seeks to make two
modifications to its First Amended Complaint in No. 11-445 “to correct deficiencies identified
by the Court in its 17 October 2012 Memorandum Opinion.” See Pl.’s Mot. for Leave to File a
Second Am. Compl. (“Pl.’s Amendment Mem.”) at 3, No. 11-445, ECF No. 36. First, as to
33
Count Fifteen—which challenged the CIA’s alleged policy of refusing to provide estimated dates
of completion for FOIA requests (the “Non-Provision of Completion Date Policy”)—the Court
dismissed that claim for lack of standing because the plaintiff had not alleged that it had been
subject to the policy in question. See NSC I, 898 F. Supp. 2d at 263. The plaintiff now seeks to
amend its complaint by adding allegations that it has become subject to that alleged policy, by
virtue of FOIA requests submitted after the Court issued its October 17, 2012 opinion. See Pl.’s
Amendment Mem. at 3; see also Proposed Second Am. Compl. ¶ 106, No. 11-445, ECF No. 36-
1 (alleging refusals to provide estimated dates of completion on October 18, October 24, and
November 3, 2012).
The Court concludes that this proposed amended must be denied for undue delay. See,
e.g., Firestone, 76 F.3d at 1208. As alleged in the plaintiff’s First Amended Complaint, the
plaintiff first became aware of the alleged Non-Provision of Completion Date Policy in
November 2010—approximately three months before filing the original complaint in No. 11-
445, and approximately four months before filing the First Amended Complaint in No. 11-445.
See 445 FAC ¶ 102. Further, the defendants specifically challenged the plaintiff’s standing to
bring this claim in its motion to dismiss, filed on June 3, 2011. See Mem. in Supp. Defs.’ Partial
Mot. to Dismiss at 6–9, No. 11-445, ECF No. 10-1. Thus, the plaintiff not only had ample
opportunity to allege that it had been subject to the alleged policy when it filed its first two
complaints in No. 11-445, it also had over sixteen months to seek an amendment to its complaint
after the CIA raised the standing issue in its motion to dismiss. The plaintiff chose not to do so,
waiting until five weeks after the Court ruled on the motion to dismiss to seek such an
amendment. This, in the Court’s view, constitutes undue delay.
34
With respect to Count Eighteen in No. 11-445—which challenges the CIA’s alleged
policy of refusing to identify responsive records withheld in their entirety at the administrative
stage (the “Withheld Document Non-Identification Policy”)—the Court dismissed that claim in
its October 17, 2012 opinion for failure to state a claim. See NSC I, 898 F. Supp. 2d at 285. In
so ruling, the Court simply concluded that, during administrative processing, 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.’” Id. (quoting Mobley v. Dep’t of Justice, 845
F. Supp. 2d 120, 124 (D.D.C. 2012)). The plaintiff now asks to “rewrite[e] Count 18 to allege a
policy, pattern, or practice of refusing to provide estimates of the volume of records withheld in
full.” See Pl.’s Amendment Mem. at 3–4. This is an entirely different claim than the one alleged
in the First Amended Complaint, and once again, the plaintiff’s belated attempt to reshape the
nature of its claims constitutes an undue delay. The plaintiff clearly “is using Rule 15 to make
the complaint a moving target, to salvage a lost case by untimely suggestion of new theories of
recovery.” See Minter, 451 F.3d at 1206. This is a naked “attempt to evade the effect of [the
Court’s] Memorandum Opinion and Order dismissing the plaintiff’s claim[],” and therefore “the
request will be denied.” See Kurtz, 2011 WL 2457923, at *1 n.1.
In sum, the plaintiff’s motion to amend its complaint “to correct deficiencies identified by
the Court in its 17 October 2012 Memorandum Opinion,” see Pl.’s Amendment Mem. at 3, is not
a proper use of Rule 15. The defects in Counts Fifteen and Eighteen in No. 11-445 were
identified by the CIA in moving to dismiss those claims, yet the plaintiff did not seek an
amendment upon being alerted to these defects. Instead, the plaintiff waited until after the Court
granted the defendants’ motion regarding these claims. 11 The plaintiff does not claim that it
11
The plaintiff stated in its reply brief that it would “not address the meritless allegation that it should have
immediately conceded and amended its complaint the moment Defendants opposed it . . . especially in light of the
35
would have been incapable of seeking amendment to its complaint much earlier, 12 and if
amendment were permitted now, the CIA would be prejudiced by having to file yet another
responsive motion regarding the newly reshaped claims—nearly a year after the Court already
granted its prior motion to dismiss in relevant part. Therefore, the Court denies the plaintiff’s
motion for leave to file a second amended complaint in No. 11-445.
B. Motion for Sanctions
In its motion for sanctions in No. 11-443, the plaintiff contends that the CIA “engaged in
an extended campaign of misrepresentation . . . regarding the nature of the information it
redacted from the two documents at issue.” See Pl.’s Mot. Sanctions (“Pl.’s Sanctions Mem.”) at
1, No. 11-443, ECF No. 50. The plaintiff relies on three bases in moving for sanctions: (1) 28
U.S.C. § 1927, (2) Federal Rule of Civil Procedure 11, and (3) the inherent power of the Court.
minor technicalities which resulted in the Court’s granting Defendants’ Motion to Dismiss with respect to the two
counts in question.” Pl.’s Reply in Supp. Mot. for Leave to File Second Am. Compl. at 3 n.2, No. 11-445, ECF No.
40. The argument referenced by the plaintiff is not “meritless,” however. When faced with a motion to dismiss, a
plaintiff is faced with a choice—oppose the motion on the merits or amend the complaint to address the deficiencies
raised in the motion. When a plaintiff elects to oppose a motion to dismiss on the merits, the plaintiff assumes the
risk that the court will grant the motion and the plaintiff’s claims will be dismissed. A plaintiff is not entitled simply
to have its proverbial cake and eat it too by first opposing a motion to dismiss on the merits (thereby forcing the
court to resolve the motion to dismiss), and then, upon losing the motion, amend its complaint to correct the very
deficiencies it refused to acknowledge previously. See, e.g., 6 CHARLES ALAN WRIGHT, ET AL FEDERAL PRACTICE
& PROCEDURE § 1488 (3d ed. 2013) (observing that “a motion to amend should be made as soon as the necessity for
altering the pleading becomes apparent” and “[a] party who delays in seeking an amendment is acting contrary to
the spirit of the rule and runs the risk of the court denying permission because of the passage of time”).
12
The plaintiff attempts to sidestep the “undue delay issue” by focusing on the five weeks that passed between the
filing of the Court’s opinion and the filing of the motion to amend. See Pl.’s Amendment Mem. at 4; Pl.’s Reply in
Supp. Mot. for Leave to File Second Am. Compl. at 3, No. 11-445, ECF No. 40. The relevant time period for undue
delay, however, is the time that passed between the filing of the defendant’s motion to dismiss and the filing of the
plaintiff’s motion for leave to amend. If the plaintiff “needed to make several requests for estimated dates of
completion . . . and give CIA a reasonable time to respond before it could sufficiently allege to the Court’s
satisfaction that it was still being affected by CIA’s practice,” see Pl.’s Amendment Mem. at 4, then the time to
submit those requests was either before filing the First Amended Complaint or, at the very least, in the sixteen
months between the defendant’s motion to dismiss and the Court’s October 17, 2012 opinion. In any event, the
plaintiff continues to misunderstand the deficiency in its allegations. The problem is not, as the plaintiff states, that
it did not “allege to the Court’s satisfaction that it was still being affected by CIA’s practice.” Id. (emphasis added).
The problem, as the Court stated in its October 17, 2012 opinion, is that the plaintiff had not alleged that it was ever
subject to the policy in question. See NSC I, 898 F. Supp. 2d at 263. That allegation could easily have been added
to the plaintiff’s Complaint before or after the defendant’s motion to dismiss was filed, but it never was. The
plaintiff, it should also be noted, does not address the undue delay issue with respect to Count Eighteen at all.
36
See id. at 6–7. Regardless of the source of the sanctions, the plaintiff contends that “the evidence
is clear that CIA’s counsel intentionally, unreasonably, vexatiously, and in bad faith
misrepresented the nature of the withheld information in the two Indices for two months,
bringing the orderly progression of the case to a screeching halt.” Id. at 8. In this regard, the
plaintiff clarifies that it “is not maintaining that CIA’s opposition to the initial Motion to Compel
was sanctionable conduct, nor is [it] saying that the making of the mistake in the first place was
sanctionable conduct.” Id. Rather, according to the plaintiff, “[i]t was not until CIA refused to
acknowledge the mistake, forced the extensive subsequent arguments, and repeatedly represented
to the Court that its assessment was correct and the undersigned was wrong that the actions of its
counsel became worthy of sanction.” Id.
To impose sanctions under the Court’s inherent power, “it is settled that a finding of bad
faith is required.” United States v. Wallace, 964 F.2d 1214, 1219 (D.C. Cir. 1992). With respect
to 28 U.S.C. § 1927, which permits a court to impose sanctions against an attorney “who so
multiplies the proceedings in any case unreasonably and vexatiously,” the D.C. Circuit “has not
established whether the standard [for unreasonable and vexatious conduct] should be
recklessness or the more stringent bad faith.” See LaPrade v. Kidder Peabody & Co., 146 F.3d
899, 905 (D.C. Cir. 1998). Finally, Rule 11 requires that when an attorney “present[s] to the
court a pleading, written motion, or other paper,” such a representation may not be “presented for
any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost
of litigation.” FED. R. CIV. P. 11(b). Rule 11 “imposes on any party who signs a pleading,
motion, or other paper . . . an affirmative duty to conduct a reasonable inquiry into the facts and
the law before filing, and the applicable standard is one of reasonableness under the
37
circumstances.” Bus. Guides, Inc. v. Chromatic Commc’ns Enterprises, Inc., 498 U.S. 533, 551
(1991).
Based on the CIA’s submissions, the Court is satisfied that sanctions are not warranted in
this case. In particular, the CIA’s explanation of the circumstances that led to the inaccurate
representations by CIA’s counsel establishes that no sanctionable conduct occurred. Of
particular importance is the revelation in the CIA’s declaration that the CIA’s information review
officer (“IRO”) used a confusing and easily misunderstood notation system when classifying the
redactions made to the two documents in question. See Sixth Lutz Decl. ¶¶ 6–8. It was
objectively reasonable for the CIA’s counsel to rely on the IRO’s statements, though
unfortunately that reliance turned out to be misplaced. Although the plaintiff is correct to assert
that the CIA’s inaccurate representations “br[ought] the orderly progression of the case to a
screeching halt,” Pl.’s Sanctions Mem. at 8, the conduct on the part of the CIA’s counsel was not
sanctionable because it appears to have been premised on a reasonable, good-faith belief that the
representations were correct at the time. The CIA is admonished to engage in clearer internal
communication before making representations to the Court about the agency’s positions in the
future, but in this particular instance the Court denies the plaintiff’s Motion for Sanctions.
C. Policies or Practices
The Court next turns to the plaintiff’s remaining policy-or-practice claims. Although
both of these claims were summarized in the Court’s previous opinion, see NSC I, 898 F. Supp.
2d at 243–44, 248–49, the Court will briefly summarize those claims here to aid the clarity of the
Court’s analysis.
1. Assignment of Rights Policy
In Count Two of No. 11-443, the plaintiff complains that the CIA has a policy of refusing
to recognize the assignment of rights related to FOIA requests (the “Assignment of Rights
38
Policy”). See 443 Compl. ¶¶ 18–28. This policy-or-practice claim is closely connected to Count
One of No. 11-443, in which the plaintiff alleges that the CIA refused to permit NSC to
participate in the administrative appeal proceedings related to a FOIA request that had been
assigned to NSC by an organization called the James Madison Project (“JMP”). 13 See id. ¶¶ 5–
17. The CIA openly admits that it has a policy of not recognizing the assignment of FOIA
requests, see Mem. in Supp. Def.’s Mot. Summ. J. on Counts One & Two (“Def.’s Second 443
Mem.”) at 2, No. 11-443, ECF No. 54 (“The CIA has adopted a categorical policy against
recognizing the assignment of FOIA claims . . . .”), and the plaintiff contends that such a policy
violates the FOIA, see Pl.’s Mem. in Opp’n to Def.’s Mot. Summ. J. on Counts One & Two & in
Supp. Pl.’s Cross-Mot. Partial Summ. J. on Counts One & Two (“Pl.’s 443 Cross-Mot. Mem.”)
at 6–7, No. 11-443, ECF No. 57.
The question presented by the Assignment of Rights Policy is as follows: Is it a violation
of the FOIA for an agency to refuse to recognize a valid assignment of the rights attached to a
FOIA request? The CIA says that a policy of not recognizing assignments does not violate the
FOIA, relying on the conclusory assertion that “[a]gencies are not required by the FOIA to
recognize the assignment of FOIA requests.” Def.’s Second 443 Mem. at 5. The CIA elaborates
its interpretation of the statute by pointing to several provisions of the FOIA “that require
agencies to make determinations based on the identity of the FOIA requester,” such as the fee-
waiver provision, see 5 U.S.C. § 552(a)(4)(A)(ii), the expedited processing provision, see id.§ 552(a)(6)(E)(i)(I), and Exemptions 6 and 7(C), see id. § 552(b)(6), 552(b)(7)(C). See Def.’s
Second 443 Mem. at 5–6. The CIA contends that such “requester-specific provisions . . . would
13
Indeed, the only argument offered by the CIA in support of summary judgment on Count One in No. 11-443 is
that “the FOIA does not require agencies to recognize the assignment of FOIA requests.” See Mem. in Supp. Def.’s
Mot. Summ. J. on Counts One & Two (“Def.’s Second 443 Mem.”) at 12, No. 11-443, ECF No. 54. Therefore, the
merits of Count One rise or fall with the merits of the policy challenged in Count Two.
39
be frustrated if agencies were required to recognize the assignment of FOIA requests.” Id. at 6–
7. Finally, the CIA contends—as a policy matter—that requiring it to recognize assignments of
FOIA requests would impose an “undue burden,” and would not result in any added benefit to
requesters. See id. at 8–12. In particular, the CIA contends that refusing to recognize
assignments “does not prejudice parties . . . that claim to have been assigned FOIA claims”
because “‘[r]equests for previously requested records are processed on an accelerated basis” and
therefore “[b]y filing new requests, professional requesters can receive the records they seek at
the same time they would if they were assigned the original requests.” Id. at 11–12.
The plaintiff responds by focusing on the factual underpinnings of the CIA’s policy
arguments—in particular the CIA’s contentions about “undue burden.” See Pl.’s 443 Cross-Mot.
Mem. at 2–7. For example, the plaintiff points out that the CIA waives FOIA fees “‘as an act of
administrative discretion’ . . . in the overwhelming majority of requests,” which the plaintiff says
“further exemplifies the lack of any fee-related burden that assignments could possibly impose.”
Id. at 3–4. The plaintiff also quibbles that the CIA has “consistently classified JMP as an ‘all
other’ requester,” and that the CIA’s classification of JMP as a “representative of the news
media” with regard to the one FOIA requests assigned to the plaintiff was an “anomaly.” Id. at
4. 14 As a final example, the plaintiff argues that the CIA’s policy of “‘piggybacking’ a later
request on an earlier request . . . has no bearing on whether recognizing assignments would
impose an undue burden.” Id. at 6. Indeed, the plaintiff argues that such a “piggybacking”
policy “puts the lie to all of [the CIA’s] arguments regarding why assignments should not be
recognized,” since a piggy-backed request “free-rides” off the earlier request in the same way an
assignee would arguably “free-ride” off an assigned request. See id. at 6.
14
Although JMP assigned five FOIA requests to the plaintiff, see Fifth Lutz Decl. Ex. A, No. 11-443, ECF No. 54-
1, the plaintiff only challenges the CIA’s refusal to process one of those requests (F-2008-01105) in Count One of
No. 11-443, see 443 Compl. ¶¶ 5–7.
40
At the outset, both an argument posited by the plaintiff and another argument by the CIA
warrant discussion. First, the plaintiff is under the misimpression that the Court already decided
the merits of the claim regarding the Assignment of Rights Policy, and in making that
assumption the plaintiff mistakenly claims victory in its cross-motion for summary judgment.
See Pl.’s 443 Cross-Mot. Mem. at 2 (“[T]he Court made it very clear that it was resolving [that
the CIA’s policy violate the FOIA] on the merits in NSC’s favor.”). To the contrary, the Court
did not decide the merits of this claim in its prior decision. Rather, in ruling on the CIA’s motion
to dismiss Counts One and Two in No. 11-443, the Court simply made two holdings: (1) the
plaintiff has standing to bring both claims; and (2) in both claims, the plaintiff stated claims upon
which relief may be granted. See NSC I, 898 F. Supp. 2d at 259. The Court made no
determination at that time about whether the plaintiff was entitled to any relief, and such a
determination would have been unwarranted since the plaintiff had not yet sought judgment on
its claim through an appropriate motion.
Second, in support of summary judgment on the Assignment of Rights Policy, the CIA
contends that “NSC’s purported assignments . . . underscore the reasonableness of the CIA’s
decision not to recognize the assignment of FOIA requests.” Def.’s Second 443 Mem. at 13. In
this vein, the CIA attempts to argue that NSC and JMP have “dissimilar objectives” because JMP
“‘holds itself out as a non-profit organization under the laws of the District of Columbia,’” while
NSC “‘is a for-profit entity located in the Commonwealth of Virginia.” Id. (quoting Fifth Lutz
Decl. ¶ 14). By making this argument, perhaps swept up in litigation fervor, the CIA is bending
the record in this case in a highly misleading way. The Court has previously discussed “the
common bonds connecting JMP and NSC,” and how their identity of interests “establishes that
their relationship ‘is such that [NSC] would protect [JMP’s] interests if their interests diverge.’”
41
NSC I, 898 F. Supp. 2d at 257-58 (alteration in original) (quoting Feinman v. FBI, 680 F. Supp.
2d 169, 175 (D.D.C. 2010)). The Court also observed in the first sentence of the Background
section of its opinion that “[t]he plaintiff in these related actions is a not-for-profit organization.”
Id. at 242. The CIA appears to conclude that NSC is a for-profit entity based on the fact that “its
website appears to solicit paying customers.” Def.’s Reply in Supp. Mot. Summ. J. on Counts
One & Two (“Def.’s Second 443 Reply”) at 7 n.2, No. 11-443, ECF No. 64. The mere earning
of income, however, is not at all an indication that an entity is organized for profit. Even non-
profit organizations must pay their bills. The government, of all entities, should know that the
difference between a for-profit corporation and a non-profit organization is not whether the
entity earns income (or even whether it earns income at a profit). Rather, “[i]n contrast to a for-
profit corporation, a non-profit organization must utilize its earnings to finance the continued
provision of the goods or services it furnishes, and may not distribute any surplus to the owners.”
Corp. of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos, 483
U.S. 327, 344 (1987) (Brennan, J., concurring). The CIA’s shameless twisting of the factual
record in this case to portray their assignment of rights position in a better light falls short of the
level of representation that this Court expects of a United States government agency. The CIA
should know better than to make such an obviously unfounded argument, particularly in light of
the many allegations of bad faith that have been leveled by the plaintiff in these cases, including
allegations that prompted a nonfrivolous motion for sanctions. See supra Part III.B; infra Parts
III.F, III.H.1.
With these preliminary matters put to rest, the Court will now turn to answering the legal
question raised by the CIA’s Assignment of Rights Policy. To answer that question, the Court
must look to the FOIA itself. The Court is mindful that the D.C. Circuit has expressly held that a
42
policy-or-practice claim under the FOIA may only survive “[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 (emphasis added); accord 5 U.S.C. § 552(4)(B) (conferring to federal district
courts “jurisdiction to enjoin the agency from withholding agency records and to order the
production of any agency records improperly withheld from the complainant”). Accordingly,
under Payne, the Court must determine, based on the undisputed facts, whether the CIA’s refusal
to recognize assignments of the rights attached to FOIA requests (1) results in “delayed
disclosure” of information; or (2) reflects a “failure to abide by the terms of the FOIA.” See
Payne, 837 F.2d at 491.
a) The Plaintiff Has Standing to Challenge the Assignment of Rights
Policy.
Before addressing the merits, however, the Court must briefly address a renewed standing
argument put forth by the CIA with respect to Counts One and Two in No. 11-443. The CIA
argues “[b]ecause NSC could file new, duplicate FOIA requests and receive the requested
records at the same time it would if the CIA recognized assignments, NSC cannot show that it is
harmed by the CIA’s assignment policy and, therefore, does not have standing to bring Counts
One and Two.” See Def.’s Second 443 Reply at 9–10. The CIA recognizes that “the Court did
not accept the CIA’s standing arguments at the motion to dismiss stage,” but it nevertheless
“respectfully requests that the Court reexamine the issue.” Id. at 10 n.3. The plaintiff’s response
to the CIA’s renewed standing argument is that such an argument “is . . . staggeringly improper,”
and therefore the plaintiff has elected to “not even address it.” See Pl.’s Corrected Reply in
Supp. Cross-Mot. Partial Summ. J. on Counts One & Two (“Pl.’s 443 Reply”) at 3 n.1, No. 11-
443, ECF No. 66-1. The plaintiff also vaguely states that it is aware of and “can provide several
43
examples of cases in which” the CIA has not piggy-backed duplicate FOIA requests, which
presumably would demonstrate a delayed disclosure of information. See id.Despite the plaintiff’s refusal to address the issue, and even assuming that the CIA’s
purported policy of piggy-backing duplicate FOIA requests eliminates any delay in the
processing of duplicate FOIA requests as compared with assigned FOIA requests, the absence of
delay would not deprive the plaintiff of standing to challenge the CIA’s Assignment of Rights
Policy. The CIA narrowly frames the plaintiff’s injury as a delay in receiving information under
the FOIA, see Def.’s Second 443 Reply at 9–10, but the Court has already held that the
plaintiff’s injury is something different in kind: the inability to exercise the statutory rights
validly assigned to it by JMP, see NSC I, 898 F. Supp. 2d at 259. Although the Court previously
addressed this issue in the context of statutory, rather than constitutional, standing to sue in its
previous opinion, see id. at 254 (“[T]he CIA’s argument presents a question of statutory, rather
than Article III standing.”), the Court’s previous analysis also establishes that a legally protected
interest of the plaintiff has been harmed. See, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555,
560 (1992). The logic of this conclusion is simple: (1) the plaintiff’s assignment is valid and
enforceable, see NSC I, 898 F. Supp. 2d at 259; (2) the CIA will not permit the plaintiff to
enforce the assignment, see Def.’s Second 443 Mem. at 2; and thus (3) the CIA is harming the
plaintiff’s legally protected interest. There is also no question that the relevant injury—
interference with the plaintiff’s legally protected interest in exercising statutory rights validly
assigned to it—was caused by the CIA’s policy and would be redressed by a judgment
invalidating that policy. See, e.g., Lujan, 504 U.S. at 560–61. Thus, the CIA’s standing
argument is unavailing now, just as it was unavailing in its motion to dismiss.
44
b) The CIA’s Assignment of Rights Policy Violates the FOIA.
As to the merits, the Court concludes that the categorical Assignment of Rights Policy
constitutes a “failure to abide by the terms of the FOIA.” See Payne, 837 F.2d at 491. This
conclusion follows ineluctably from the Court’s previous holding that “the plaintiff’s
Assignment is valid and enforceable.” See NSC I, 898 F. Supp. 2d at 259. The Supreme Court
has observed that “[a]ssignees of a claim . . . have long been permitted to bring suit.” Sprint
Commc’ns Co., L.P. v. APCC Servs., Inc., 554 U.S. 269, 275 (2008). Indeed, “[a] statutory right
of action is generally assignable, except where it is conferred on one of a particular class, in the
nature of a personal privilege, or penalty available to him or her alone.” 6A C.J.S. ASSIGNMENTS
§ 49 (2013). “[T]he general rules concerning assignability control in determining whether [a
statutory right of action] is assignable,” id. (footnote omitted), and “[t]he traditional test for
assignability of a cause of action . . . is whether the cause of action survives the assignor and
passes to his or her personal representative; if it does, the cause of action is assignable,” id. § 44;
accord Accrued Fin. Servs., Inc. v. Prime Retail, Inc., 298 F.3d 291, 296 (4th Cir. 2002)
(“[S]tandard principles of assignment law . . . recognize the legality of assigning both existing
and potential choses in action, so long as the causes of action survive the death of the
assignor.”). 15 Since the D.C. Circuit has held that FOIA claims survive death and can be
transferred to a deceased requester’s legal representative, see Sinito v. U.S. Dep’t of Justice, 176
F.3d 512, 517 (D.C. Cir. 1999), it stands to reason that at least some FOIA requests are properly
15
Numerous other kinds of federal statutory claims have been held to be assignable, such as claims under the Miller
Act, see United States ex rel. Sherman v. Carter, 353 U.S. 210, 220 (1957) (“The trustees stand in the shoes of the
employees and are entitled to enforce their rights.”); claims for welfare benefits under the Employee Retirement
Income Security Act (“ERISA”), see, e.g., Misic v. Bldg. Serv. Emps. Health & Welfare Trust, 789 F.2d 1374, 1379
(9th Cir. 1986); antitrust claims, see, e.g., Martin v. Morgan Drive Away, Inc., 665 F.2d 598, 603 n.3 (5th Cir. Unit
A 1982) (“It is well settled in the federal courts that antitrust claims are assignable.”); and civil claims under the
Racketeer Influenced and Corrupt Organizations (“RICO”) Act, see Lerman v. Joyce Int’l, Inc., 10 F.3d 106, 113
(3d Cir. 1993).
45
assignable, and thus a categorical policy of refusing to recognize assignments violates the
FOIA. 16
Indeed, the CIA does not appear to contest the fact that the plaintiff has been validly
assigned the rights to JMP’s FOIA requests. Rather, the CIA relies on two aspects of the FOIA
to justify its Assignment of Rights Policy: (1) the FOIA’s silence with respect to assignments;
and (2) the FOIA’s “requester-specific provisions.” See Def.’s Second 443 Mem. at 5–7. The
FOIA’s silence regarding assignments, however, supports the plaintiff’s position, if it supports
either position at all. “‘Congress is understood to legislate against a background of common-law
adjudicatory principles.’” Mohamad v. Palestinian Auth., 132 S. Ct. 1702, 1709 (2012) (quoting
Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104, 108 (1991)). It is a well-established
“canon of construction that statutes should be interpreted consistently with the common law.”
See Samantar v. Yousuf, 130 S. Ct. 2278, 2289 (2010); accord Solimino, 501 U.S. at 108(“[W]here a common-law principle is well established . . . the courts may take it as given that
Congress has legislated with an expectation that the principle will apply except when a statutory
purpose to the contrary is evident.” (internal quotation marks omitted)). “‘In order to abrogate a
common-law principle, [a] statute must speak directly to the question addressed by the common
law.’” Manoharan v. Rajapaksa, 711 F.3d 178, 179–80 (D.C. Cir. 2013) (internal quotation
marks omitted) (quoting United States v. Texas, 507 U.S. 529, 534 (1993)). Thus, absent a
statement from Congress in the FOIA regarding assignments, the common-law principles
regarding the recognition of assignments presumably apply, and, as discussed above, under
16
Since the CIA’s Assignment of Rights Policy is categorical, the Court need not decide in what circumstances an
agency can, consistent with the FOIA, refuse to recognize the assignment of a particular request. The answer to that
question likely will depend upon, inter alia, the identity of interests between the two parties and the stage at which
the request is being processed at the time of assignment. See Sinito, 176 F.3d at 516–17 (limitations on substitution
for FOIA claims “assuage[es] the government’s concern that allowing a FOIA case to survive the death of the
requester would allow ‘any person’ to step into the shoes of the decedent” (citation omitted)); NSC I, 898 F. Supp.
2d at 257–58 (discussing identity of interests between assignor and assignee of FOIA request).
46
common-law principles, “[a] statutory right of action is generally assignable.” 6A C.J.S.
ASSIGNMENTS § 49. 17
The assignability of FOIA requests is also consistent with the animating principle behind
the FOIA, which is “to increase the public’s access to governmental information.” Blazy v.
Tenet, 194 F.3d 90, 97 (D.C. Cir. 1999) (emphasis in original) (quoting Greentree v. U.S.
Customs Serv., 674 F.2d 74, 76 (D.C. Cir. 1982)). Indeed, it is curious that the CIA’s declarant
attempts to justify the Assignment of Rights Policy by contending that “accepting the assignment
and substituting a motivated assignee for a passive requester . . . would increase [the CIA’s]
exposure to litigation.” See Decl. of Martha M. Lutz (Jan. 30, 2013) (“Fifth Lutz Decl.”) ¶ 9,
No. 11-443, ECF No. 54-1. All else equal, a “motivated assignee” would actually be preferred
to a “passive requester,” see id., because the former would be more likely “to increase the
public’s access to governmental information,” Blazy, 194 F.3d at 96, and thereby further the
purpose of the FOIA. The CIA would have the Court believe that, due to the CIA’s policy of
“‘piggyback[ing]’” a subsequent duplicative request to its corresponding initial request, the non-
recognition of assignments of FOIA requests will not diminish or delay the public’s access to
information. See, e.g., Fifth Lutz Decl. ¶ 12. Although the Court addresses this issue more fully
below in discussing the CIA’s “undue burden” arguments, see infra Part III.B.1(c), it suffices to
say that, at least in some circumstances, the refusal to recognize assignments of FOIA requests
17
The Court assumes without deciding that principles of federal common law, rather than state-law principles,
would apply to whether FOIA requests are assignable. Since the release of government records through the FOIA
undoubtedly “touch[es] the rights and duties of the United States,” see Bank of Am. Nat’l Trust & Sav. Ass’n v.
Parnell, 352 U.S. 29, 33 (1956), it therefore likely qualifies as one of the “few areas . . . involving ‘uniquely federal
interests’” that requires the development of federal common law principles, see Boyle v. United Techs. Corp., 487
U.S. 500, 504 (1988) (quoting Texas Indus., Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 640 (1981)). Cf., e.g.,
Cincom Sys., Inc. v. Novelis Corp., 581 F.3d 431, 436 (6th Cir. 2009) (“Federal common law governs ‘questions
with respect to the assignability of a patent or copyright license.’” (quoting PPG Indus., Inc. v. Guardian Indus.
Corp., 597 F.2d 1090, 1093 (6th Cir. 1979)).
47
will indeed diminish or delay the public’s access to information. Therefore, a categorical refusal
to recognize the assignment of FOIA requests is at odds with the statute’s purpose.
As to the “requester-specific provisions” of the FOIA, the CIA is correct to assert that
certain rights or privileges conferred under the FOIA are non-assignable. For example, the right
to (1) a public-interest fee waiver, (2) the expedited processing of a request, or (3) the release of
information that implicates personal privacy, all are personal to a requester and thus cannot be
assigned. See, e.g., RTC Commercial Loan Trust 1995-NP1A v. Winthrop Mgmt., 923 F. Supp.
83, 88 (E.D. Va. 1996) (holding that “certain rights are purely personal and cannot be assigned”).
Hence, the CIA is correct that these personal rights and privileges could not be assigned. The
plaintiff, however, does not contend that wholesale assignment is what the FOIA requires. The
plaintiff, for example, does not contend that the CIA is required to allow an assignee FOIA
requester to stand in the shoes of its assignor with regard to fee status. Therefore, the CIA jabs at
a straw man in contending that a requirement upon agencies to recognize the assignment of
FOIA requests would frustrate the purposes behind the aforementioned “requester-specific
provisions” of the FOIA. See Def.’s Second 443 Mem. at 6–7. Furthermore, agency recognition
of assignments of FOIA requests would, at most, merely transfer some administrative steps to the
processing of a pending FOIA request that would already be taken with respect to a new,
duplicative FOIA request; it would not necessitate that the “the purpose behind [the requester-
specific provisions] . . . be frustrated.” See id. at 7.
c) Recognizing the Assignment of FOIA Requests Would Impose No
Categorically Undue Burden on the CIA.
The CIA devotes a substantial portion of its briefing and the majority of the Fifth Lutz
Declaration to the contention that recognizing assignments would place an undue burden on the
CIA’s FOIA administrators. See Def.’s Second 443 Mem. at 7–10; Fifth Lutz Decl. ¶¶ 5–13. In
48
this vein, the CIA enumerates several ways in which “[a]ssignment of FOIA rights would
prejudice the Agency both at the administrative processing stage and in litigation.” Fifth Lutz
Decl. ¶ 5. Rather than recognize assignments, the CIA proposes that having putative assignee
requesters simply submit a new, duplicative FOIA request would entail less prejudice to the
agency and no prejudice to the requester. See id. ¶ 13. The Court disagrees.
First, according to the CIA, assignment of FOIA rights would “complicate [the CIA’s
Public Information Programs Division’s] adjudication of requests for fee waivers, expedited
processing, and placement in a given fee category.” Id. ¶ 5. With respect to this first argument,
the CIA essentially contends that, if a FOIA request is assigned to another person, the CIA
“would be required to stop processing the request” and decide whether the assignee requester (1)
is entitled to expedited processing or (2) shares the original requester’s same fee category. Id.
The CIA adds that, in the event of assignment, it “would also have to resolve the question as to
whether fees should be charged retroactively for assignees that do not qualify for the assignor’s
fee waiver or preferential fee category.” Id. ¶ 6. Similarly, the CIA complains, “where the
assignor submitted a privacy waiver of a third party . . . issues of consent would arise,” and the
assigned request “would require the submission of a new privacy waiver.” Id. ¶ 7.
There is no question that, if a FOIA request were assigned by the original requester, the
CIA would need to assess the applicability of the “requester-specific provisions” of the FOIA,
discussed above, to the assignee requester. See supra Part III.B.1(b). What the CIA does not
explain, however, is why such an effort would “prejudice” the agency, given the fact that the
CIA would have to make the exact same assessment if the assignee were to submit a new FOIA
request instead of pursuing the assigned FOIA request. Hence, the assignment of a FOIA request
would not add to the agency’s burden in administering the requester-specific provisions of the
49
statute, as compared to the submission of a new FOIA request: Both a new FOIA request and an
assigned FOIA request would require de novo determinations regarding fee status, fee waivers,
expedited processing, and the applicability of Exemptions 6 and 7(C). As to the CIA’s
complaint about needing to decide “whether fees should be charged retroactively,” see Fifth Lutz
Decl. ¶ 6, this is hardly a burden, let alone an “undue” one. First, to the extent the recognition of
an assignment would permit the CIA to charge FOIA fees to the assignee when it would not have
been able to charge fees to the original requester, a policy of recognizing assignments represents
a net gain to the agency, not a burden. Second, the CIA is free to charge fees to any assignee
FOIA requester who does not qualify for a fee waiver, just as it would be free to do if the same
requester had filed a new request. Again, the administrative burdens between the two scenarios
are identical. 18
Second, the CIA fears that “assignment of rights presents the potential for abuse.” See id.
¶ 8. The CIA asserts in this regard that it “does not have the resources to inquire into the validity
of the requesters’ consent and assignees’ acceptance or to evaluate whether the assignment
comports with [the] law of the state where the assignment was conferred.” Id. (footnote
omitted). First, as to the state-law question, it is likely that federal common law, not state law,
would govern whether the assignment of a FOIA request were valid. Cf. Gulfstream III Assocs.,
Inc. v. Gulfstream Aerospace Corp., 995 F.2d 425, 437 (3d Cir. 1993) (“[T]he validity of the
assignment of an antitrust claim is a matter of federal common law.”). The FOIA has been held
to preempt other state-law doctrines regarding rights of access to information. See, e.g., Ctr. for
18
This would also not be a “retroactive[]” assessment of fees, since the conduct that would trigger the fee
assessment would be the assignment of the request, not the initial submission of the request. See, e.g., Quantum
Entertainment Ltd. v. U.S. Dep’t of Interior, 714 F.3d 1338, 1343 (D.C. Cir. 2013) (“[T]he application of a new
statute is . . . retroactive only if it would ‘impair rights a party possessed when it acted, increase a party’s liability for
past conduct, or impose new duties with respect to transactions already completed.’” (quoting Landgraf v. USI Film
Prods., 511 U.S. 244, 280 (1994))).
50
Nat’l Sec. Studies v. U.S. Dep’t of Justice, 331 F.3d 918, 936 (D.C. Cir. 2003) (common-law
right of access); see also Hartford Fire Ins. Co. v. United States, 857 F. Supp. 2d 1356, 1365 (Ct.
Int’l Trade 2012) (“Because FOIA establishes a comprehensive statutory framework for
disclosure of agency records, when it conflicts with existing common law rights to disclosure,
such rights are preempted.”). Thus, arguably, since the validity of a FOIA assignment affects the
putative assignee’s right to access information from the federal government, the question of
validity is an “issue[] closely interwoven with a broad scheme of federal statutory regulation,”
which requires the development of interstitial federal common law. See Gulfstream, 995 F.2d at
438.
Even if state law did apply to the validity of the assignment of a FOIA request, the CIA
has failed to explain why it would need to “inquire into the validity” of every such assignment.
See Fifth Lutz Decl. ¶ 8. The Court addressed this issue in its previous opinion, saying that
“[a]gencies 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.” NSC I, 898 F. Supp. 2d at 259. The CIA already does this in the context of third-
party consent for the release of personal information. See CIA FOIA, FOIA Helpful Hints,
http://www.foia.cia.gov/foia-helpful-hints (last visited August 11, 2013) (requiring requesters
who seek “records on an individual other than yourself” to provide “[a] signed notarized
statement from the other individual authorizing release of personal information”). It defies all
logic to say that the CIA can accept standardized third-party information releases but would need
to “inquire into the validity of [each] requester[’s] consent and assignee[’s] acceptance.” See
Fifth Lutz Decl. ¶ 8. The CIA’s purported investigatory burden in this regard is largely
imaginary and would certainly not be undue or categorical in nature.
51
Third, and as referenced above, the CIA argues that the assignment of FOIA requests
would “increase its exposure to litigation” by “substituting a motivated assignee for a passive
requester.” See Fifth Lutz Decl. ¶ 9. As discussed above, to the extent that the Assignment of
Rights Policy is aimed at keeping otherwise meritorious FOIA claims out of federal courts, it is
at odds with the purposes of the FOIA. See supra Part III.B.1(b). Furthermore, the CIA’s
contention that “the assignee would be placed in a better position to litigate the assigned request
than if they had submitted a new request on the same subject,” Fifth Lutz Decl. ¶ 9, implicitly
confirms that the Assignment of Rights Policy tends to prejudice requesters. To the extent an
“assignee would be placed in a better position to litigate the assigned request than if they had
submitted a new request on the same subject,” id., then a FOIA requester “submit[ing] a new
request on the same subject” would be in a worse position to litigate the assigned request,
presumably because the requester would be less likely to be able to take advantage of the FOIA’s
constructive exhaustion provision, 5 U.S.C. § 552(a)(6)(C)(i). 19
Frankly, the CIA’s argument in this regard appears to boil down to a concern with
ensuring that the agency can present a rosier picture of its compliance with the time limits of the
FOIA, rather than with any concern regarding an undue burden. 20 See, e.g., Fifth Lutz Decl. ¶ 9
(without having to recognize assignments, the CIA “can more easily comply within the statutory
timeframe established by the FOIA”). It may be that refusing to recognize assignments would
“minimize[]” the CIA’s litigation risk, see id., by allowing the agency to restart the clock with a
19
It is not clear what the CIA means by “placed in a better position to litigate the assigned request.” See Fifth Lutz
Decl. ¶ 9. The only potential difference between assignees and non-assignees with regard to litigation, as the Court
observes above, is that a non-assignee may be less likely to be able to take advantage of the FOIA’s constructive
exhaustion provision, 5 U.S.C. § 552(a)(6)(C)(i). This fact, if true, would only mean that an assignee would be able
to litigate a request more quickly than a non-assignee in some instances, but it would not mean that the assignee’s
claims in litigation would be any more or less meritorious than those of non-assignees.
20
The FOIA requires that an agency make a “determination” regarding a FOIA request within twenty business days
of the receipt of the request, and it also requires that an agency make a “determination” regarding any administrative
appeal within twenty business days of the receipt of the appeal. See 5 U.S.C. § 552(a)(6)(A).
52
new FOIA request, rather than having to respond to the initial request within the statutory
timeframe. Compliance with the statutory timeframe, however, is not an undue burden; it is a
burden that Congress expects agencies to bear. See, e.g., Citizens for Responsibility & Ethics in
Wash. v. FEC, 711 F.3d 180, 189–90 (D.C. Cir. 2013).
Fourth, the CIA relatedly argues that “an assignee may attempt to seek an award of
attorney fees and costs citing work completed pre-assignment.” Fifth Lutz Decl. ¶ 10. The CIA
likewise asserts that “[i]n certain cases, a requester would not be eligible for any award ‘but for’
an assignment.” Id. ¶ 11. With respect to the latter assertion, the CIA provides two examples:
(1) “were the Agency to comply with a request within the FOIA’s time limits, a requester would
[be] ineligible for attorney’s fees,” and (2) “a requester seeking already disclosed records would
not satisfy the attorney fees entitlement factor that considers the public benefit derived from the
case.” Fifth Lutz Decl. ¶ 11. Both of these examples, however, present problematic support for
the agency’s position. As to the first, a simple review of the statutory language demonstrates that
the CIA’s conclusion is dead wrong. The FOIA provides that a “court may assess against the
United States reasonable attorney fees and other litigation costs reasonably incurred in any case
under this section in which the complainant has substantially prevailed.” 5 U.S.C.
§ 552(a)(4)(E)(i). Therefore, in the circumstance where (1) an agency timely responds to a
FOIA request and (2) withholds responsive records, but (3) the requester later secures a
judgment from a court ordering the agency to disclose the responsive records that were withheld,
the requester has “substantially prevailed” and would therefore be eligible for attorney’s fees,
despite the fact that the agency responded to the request in a timely fashion. See id.§ 552(a)(4)(E)(ii) (defining “substantially prevailed” as, inter alia, “a judicial order or
enforceable written agreement or consent decree”). Indeed, such a plaintiff would be eligible for
53
attorney’s fees even without a court disclosure order, so long as the plaintiff’s “lawsuit
substantially caused the agency to release the requested records.” See Davis v. U.S. Dep’t of
Justice, 610 F.3d 750, 752 (D.C. Cir. 2010). The legal basis for the CIA’s assertion that merely
responding within the statutory timeframe immunizes it from claims for attorney’s fees is
unclear.
As to the second example provided by the CIA, it is totally implausible that “a requester
seeking already disclosed records” would ever substantially prevail in a FOIA lawsuit. See Fifth
Lutz Decl. ¶ 11. Assuming that, by “already disclosed,” the CIA means already officially
disclosed, the only way this could occur would be if the agency in question refused to provide
the requester with the “already disclosed records,” thus necessitating a court order. This scenario
is particularly implausible because the CIA asserts later in its declaration that processing
“requests for previously requested records” is simple and expedient because “the legwork for the
request has been completed.” Id. ¶ 12. Presumably, processing a FOIA request for “already
disclosed records” would be even simpler and more expedient, requiring nothing more than
duplication of the records that have already been processed and released. How such a scenario
would ever approach the question of attorney’s fees is a puzzle the CIA’s argument leaves
unsolved.
In short, the two examples provided by the CIA with regard to attorney’s fees do not
come close to establishing any kind of “undue burden” that would result from the recognition of
assignments. The same is true of the CIA’s concern that “an assignee may attempt to seek an
award of attorney fees and costs citing work completed pre-assignment.” See Fifth Lutz Decl.
¶ 10. Similar to the litigation burden argument addressed above, requiring the CIA to incur
attorney’s fees—including attorney’s fees for work completed pre-assignment—is not an undue
54
burden. Attorney’s fees are the price exacted from agencies by the FOIA, designed to “remove
the incentive for administrative resistance to disclosure requests based . . . on the knowledge that
many FOIA plaintiffs do not have the financial resources or economic incentives to pursue their
requests through expensive litigation.’” Davy v. CIA, 550 F.3d 1155, 1158 (D.C. Cir. 2008)
(quoting Nationwide Bldg. Maint., Inc. v. Sampson, 559 F.2d 704, 711 (D.C. Cir. 1977)). It is
thus telling that the CIA discusses “an incentive . . . to litigate requests that would otherwise not
be pursued” as if it were something the FOIA seeks to discourage. See Fifth Lutz Decl. ¶ 11.
Finally, the CIA claims that “no prejudice [would] result[] from requiring individuals to
submit a [new and duplicative] FOIA request.” Id. ¶ 12. Embedded within this contention,
however, is yet another inconsistency. As discussed above, the CIA contends that having to
reassess the applicability of the FOIA’s “requester-specific provisions” for an assigned request
would be an undue burden. See id. ¶¶ 5–7. Yet, when the CIA must perform that same
reassessment for a new, duplicative FOIA request, it says that the task is simple and that it “often
result[s] in a response to a requester within the statutory timeframe.” Id. ¶ 12. Both positions
cannot simultaneously be accurate.
Furthermore, the CIA only considers two factual circumstances in its declaration:
(1) “requests for previously requested records,” and (2) “a request for the same subject as an
outstanding request.” Id. Yet, the facts of the instant case fall into a third category: an assignee
requester seeks to step into the shoes of an original requester while the request in question is
making its way through the administrative appeal process. See NSC I, 898 F. Supp. 2d at 244
(discussing how JMP assigned request to NSC nearly six months after JMP had filed
administrative appeal). Indeed, in this case, NSC sought to amend the pending administrative
appeal with respect to the assigned request over a year after the administrative appeal had been
55
filed. See id. In light of this factual predicate, the CIA does not explain how requiring NSC to
file a new FOIA request would have resulted in no delay. The CIA would have first needed to
process the new request, and although “the legwork for the request ha[d] [already] been
completed,” Fifth Lutz Decl. ¶ 12, the CIA would have admittedly had to assess NSC’s fee status
and right to expedited processing, see id. ¶ 5. Then, NSC would have had to file an
administrative appeal from scratch.
The CIA does not state whether it also “piggybacks” administrative appeals for the same
information, nor does the CIA say whether such appellate “piggybacking” would be feasible,
since even multiple requests for the same information are liable to raise distinct and separate
issues in their administrative appeals. 21 The CIA nevertheless concludes—ignoring the
procedural posture of the specific request at issue in this case—that “if plaintiff were to request
the same information, his request would be joined with the existing request and the Agency
would respond to both requests at the same time.” Id. ¶ 16. As demonstrated above, however, it
is not a simple matter of “join[ing] with the existing request” because the original request had
already traveled almost entirely through the administrative process at the time of assignment.
How the process of catching the new request up with the original request would result in no
delay whatsoever defies reality, particularly in a case like the instant one where the original
administrative appeal had been pending for over a year when the assignee attempted to modify it.
Thus, even assuming that the CIA uniformly implements its “piggybacking” policy, such a
21
The risk of delay would be even more acute if a FOIA request were assigned after the administrative appeal
process had already been completed. At that point, the second requester (in this case NSC) would need to file a new
FOIA request, file a new administrative appeal, and exhaust the entire administrative process before it would be in
the same position as the original requester.
56
policy would still inevitably result in delay to requesters, particularly with respect to FOIA
requests that are far along into the administrative process. 22
In sum, the Court concludes that the CIA’s admitted Assignment of Rights Policy
constitutes a “failure to abide by the terms of the FOIA.” See Payne, 837 F.2d at 491. The Court
likewise concludes that the CIA’s ongoing failure is not excused by the presence of any undue
burden that would result from recognizing the assignment of rights associated with FOIA
requests. Thus, the CIA may no longer categorically refuse to recognize the assignment of FOIA
requests, and the Court will grant summary judgment to the plaintiff on Count Two in No. 11-
443.
Additionally and relatedly, since the CIA cites only the Assignment of Rights Policy as
the justification for not providing any final administrative response to the plaintiff regarding
FOIA request No. F-2008-01105 (the request assigned by JMP to the plaintiff), the CIA has not
met its burden at summary judgment. Since the Assignment of Rights Policy is invalid and thus
clearly not sufficient to justify the CIA’s refusal to permit the plaintiff to pursue its
administrative appeal, the Court will grant summary judgment to the plaintiff on Count One in
No. 11-443 as well. The current status of the FOIA request at issue in Count One, however, is
not clear. The CIA stated in January 2013 that this request was “still pending.” See Fifth Lutz
Decl. ¶ 4. Likewise, the plaintiff states in its Complaint that the FOIA request was
administratively appealed prior to the assignment being issued. See 443 Compl. ¶¶ 9–13. Thus,
although the plaintiff requests the Court to “order CIA to immediately release all currently
withheld information responsive to . . . the FOIA request at issue in Count 1,” see Pl.’s 443
Cross-Mot. Mem. at 2, the Court will remand this matter to the agency rather than order the
22
The “piggybacking” policy would presumably be much less likely to result in delay if an assignment of rights
were to take place early on in the FOIA request process, such that the two requests could be joined prior to any
significant amount of work being done with respect to either request.
57
release of responsive records. On remand, the CIA must permit the plaintiff to exhaust its
administrative remedies through the administrative appeals process as an assignee of the FOIA
request in question. 23
2. Document-Level Exemption Policy
In Count Twenty of No. 11-445, the plaintiff complains that the CIA has a policy or
practice “of refus[ing] to invoke exemptions with particularity.” See 445 FAC ¶ 131.
Specifically, the plaintiff alleges that the CIA’s policy is to “invoke[] [FOIA] exemptions on a
document-level without indicating which exemptions applied to which particular redactions.” Id.
¶ 129. In its previous opinion, the Court dubbed this the “Document-Level Exemption Policy.”
See NSC I, 898 F. Supp. 2d at 243. The FOIA requires that, when an agency releases segregable
portions of a record, “the exemption under which the deletion is made, shall be indicated on the
released portion of the record, unless including that indication would harm an interest protected
by the exemption . . . under which the deletion is made.” 5 U.S.C. § 552(b). In this regard, the
FOIA also states, “[i]f technically feasible, . . . the exemption under which the deletion is made,
shall be indicated at the place in the record where such deletion is made.” Id. Finally, the FOIA
provides that “a court shall accord substantial weight to an affidavit of an agency concerning the
agency’s determination as to technical feasibility under . . . subsection (b).” Id. § 552(a)(4)(B).
In the instant case, the CIA defends its Document-Level Exemption Policy by contending
that “it is not currently technically feasible for the Agency to assert exemptions on the redaction
level.” Def.’s Mem. in Supp. Mot. Summ. J. on Counts Twelve & Twenty (“Def.’s Second 445
23
The CIA indicates that “if the Court were to order the CIA to begin recognizing assignments, the Agency would
have to determine whether NSC’s purported assignment comports with state law and was legitimately obtained and
address potential fee and personal privacy issues before it could proceed to litigate the underlying request.” Def.’s
Second 443 Reply at 11. The Court will leave these matters to the agency on remand, but cautions that the CIA’s
legal position regarding the validity of an assignment resting on state law is highly questionable and, furthermore,
may be inconsistent with the law of this case. See NSC I, 898 F. Supp. 2d at 259 (“The Court holds that the
plaintiff’s Assignment is valid and enforceable . . . .”).
58
Mem.”) at 2, No. 11-445, ECF No. 42. To support this contention, the CIA has submitted the
sworn declaration of Michele Meeks, who is the chief of the CIA’s Public Information Programs
Division (“PIPD”) and also the CIA Information and Privacy Coordinator (“IPC”). See Decl. of
Michele L. Meeks (Apr. 29, 2013) (“Meeks Decl.”) ¶ 1, No. 11-445, ECF No. 42-1. In that
declaration, Ms. Meeks explains that “[t]he CIA’s [FOIA] review process is decentralized
whereby each of the [CIA’s] five directorates . . . maintains an [Information Review Officer, or
‘IRO’] staff that reviews Agency records and makes public release determinations with an eye
toward evaluating directorate-specific equities.” Id. ¶ 4. Ms. Meeks also explains that “records
frequently involve the equities of multiple directorates,” and “[w]hen records implicate the
operational interests of multiple directorates, the reviews are conducted by the relevant IROs
simultaneously.” Id. ¶¶ 5–6. Within each directorate, “IRO staffers electronically redact any
protectable material and indicate the basis for the redaction on the page,” and each directorate
maintains “a separate electronic version of the document.” Id. ¶ 6.
Once all relevant directorates have completed their reviews, Ms. Meeks explains, the CIA
“then consolidates the redactions generated by the reviewing IRO staffs into a single document.”
Id. ¶ 7. In this regard, Ms. Meeks states that “there is frequently variation as to what is redacted
by the different directorates,” and in that circumstance, “[CIA] staffers compile the redactions
made by each directorate and merge all of the redactions into a final version in preparation for
public release.” Id. This preparation of the “final version” occurs on the CIA’s Automated
Declassification and Release Environment (“CADRE), which “does not have similar capability
with respect to exemptions and other document markings.” Id. ¶ 8. In CADRE, Ms. Meeks
states, “[t]he merge function pulls the underlying justification for the redaction, but, due to the
substantial overlap of the redactions in each of the directorate’s versions, the exemptions appear
59
on top of one another and are unreadable.” Id. Therefore, “[t]he staff involved in the merging
cannot, without conducting extensive, time consuming manual review, parse out which
exemptions apply to a specific redaction and notate as appropriate.” Id.
The Court is mindful that it has a statutory obligation to “accord substantial weight” to
Ms. Meeks’ statements regarding the CIA’s determination of technical feasibility, see 5 U.S.C.
§ 552(a)(4)(B), but Ms. Meeks’ explanation of the purported technical infeasibility of noting
redaction-level exemptions has several unexplained gaps and inconsistencies. It should be noted
again at the outset that the CIA’s Document-Level Exemption Policy is, like the Assignment of
Rights Policy, categorical in nature. See Meeks Decl. ¶ 8 (“[A]t present, the Agency indicates all
the applicable exemptions in the top corner of the released document.”). This characteristic of
the policy is notable, considering that the basis for the Document-Level Exemption Policy is that,
when multiple directorates review a record, “the exemptions appear on top of one another and
are unreadable.” Id. ¶ 8. Yet, Ms. Meeks explicitly concedes that records only “frequently
involve the equities of multiple directorates.” Id. ¶ 5 (emphasis added). That this situation
occurs frequently is no justification for imposing the policy categorically, regardless of whether
indicating redaction-specific exemptions is technically feasible when multiple directorates
review the same document. Hence, when, for example, only one directorate reviews a given
record or only one directorate indicates a redaction on a given record, the CIA’s Document-
Level Exemption Policy is clearly unsupported and contrary to the FOIA.
Furthermore, Ms. Meeks’ explanation of technical infeasibility is perplexing. The CIA’s
process of redacting information, as explained by Ms. Meeks, only makes sense up until she
explains what happens when the various electronic versions of a record are “merge[d],” after
each directorate has reviewed it. See id. ¶¶ 7–8. First, Ms. Meeks states on the one hand that
60
“there is frequently variation as to what is redacted by the different directorates,” implying that
there is frequently no overlap between the directorates’ redactions. See id. ¶ 7 (emphasis added).
Indeed, this makes sense because, as Ms. Meeks points out, each directorate has “separate
operational equities at issue.” See id. Yet, in the very next paragraph of her declaration, Ms.
Meeks reverses course, stating that “the exemptions appear on top of one another and are
unreadable” due to “the substantial overlap of the redactions in each of the directorate’s
versions.” Id. ¶ 8 (emphasis added).
Of course, “frequent[] variation” and “substantial overlap” are not mutually exclusive,
but the CIA’s declaration does not explain why exemptions cannot be indicated next to a
redaction that was made by only one directorate. It would be one thing if the CIA were to aver
that every single redaction is always made by at least two directorates, but the CIA does not even
suggest that to be the case. In fact, it would appear not to be the case because Ms. Meeks’
declaration strongly implies that, at least sometimes, an entire document is reviewed by only one
directorate, see id. ¶ 5, and thus necessarily every redaction made to such a document would be
made by only the one reviewing directorate. In such a circumstance—which the CIA suggests is
uncommon but nevertheless extant—indicating the claimed exemption “at the place in the record
where such deletion is made” appears to be technically feasible based on the CIA’s own
explanation of how its redaction process works. See 5 U.S.C. § 552(b).
Therefore, even according the “substantial weight” due to the CIA’s declaration on the
issue of technical feasibility, see 5 U.S.C. § 552(a)(4)(B), the Court concludes that the CIA’s
categorical Document-Level Exemption Policy constitutes a “failure to abide by the terms of the
FOIA.” See Payne, 837 F.2d at 491. The CIA must make a case-by-case determination
regarding the technical feasibility of indicating a claimed exemption associated with a deletion
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“at the place in the record where such deletion is made.” See 5 U.S.C. § 552(b). Additionally,
based on the CIA’s representations, the CIA can only possibly claim technical infeasibility if the
same redaction in question was made by more than one directorate within the CIA. The Court
will thus grant summary judgment to the plaintiff with respect to Count Twenty in No. 11-445. 24
D. Adequacy of Search Efforts
Next, the Court will discuss the plaintiff’s challenges to the adequacy of the search
efforts of defendants CIA, State Department, and NSA in responding to four separate FOIA
requests. The Court will address the considerations related to each request in turn.
1. Count Eighteen in No. 11-444: January 26, 2011 FOIA Request to the
CIA
In response to the plaintiff’s January 26, 2011 FOIA request seeking “all [CIA] records
pertaining to the search tools and indices available to the Office of Information Management
Services (‘IMS’) for conducting searches of its own records in response to FOIA requests,” the
CIA determined that the Director’s Area was the only directorate within the CIA reasonably
likely to have records responsive to the request. See First Lutz Decl. ¶ 48. The stated reason for
this determination is that the request sought records “available to IMS,” and “IMS is a
component within the Director’s Area.” See id. The CIA avers that the plaintiff’s request “was
sent to IMS professionals who had personal knowledge of what search tools and indices were
available and personally used by IMS personnel to search IMS records systems because they
themselves use the search tools and indices references in the request.” Id. ¶ 50. The IMS
24
To be clear, the Court is not ordering the CIA to make any modifications to its current document-redaction
system, even if such a modification would make the agency’s processing of requests more FOIA-compliant. The
plaintiffs advocates for an affirmative injunction against the CIA, requiring it to “correct” a perceived “technical
problem” with CIA’s system. See Pl.’s Second 445 Opp’n at 6. The plaintiff’s challenge, however, was to the
CIA’s categorical policy of refusing to indicate exemptions next to specific redactions. See 445 FAC ¶¶ 129–31.
The Court holds that that policy is invalid. Whether or not the FOIA requires the CIA to broaden the universe of
records for which it can feasibly claim exemptions for deletions “at the place in the record where such deletion is
made” by, for example, changing its technical process for redacting records, is not at issue here.
62
personnel “electronically searched the IMS records system as well as manually searched for
independently known records that were responsive to Plaintiff’s request.” Id. ¶ 51.
The plaintiff raises two objections to the adequacy of the CIA’s search in response to the
January 26, 2011 FOIA request. First, the plaintiff states that “the request asked for the indices
themselves, in addition to records about them,” yet the CIA merely “provided three records
which described indices.” See Pl.’s First 444 Opp’n at 24 (emphasis in original). Second, the
plaintiff complains that, in a separate pending case, the CIA’s declarant, Ms. Lutz, referenced the
existence of several IMS systems of records which were not referenced in the documents
released to the plaintiff in this case. See id. at 25. Specifically, the records released to the
plaintiff in the instant case only reference two records systems: SMART2 and CADRE. See First
Lutz Decl. ¶ 51. Yet, the plaintiff points to language in Ms. Lutz’s declaration in a separate
pending case (Civil Case No. 11-442), in which she “identified at least three more systems of
records which exist ‘within IMS’ and for which records should have been released.” See Pl.’s
Mot. for Leave to File Additional Evidence at 3, No. 11-444, ECF No. 44. Hence, the plaintiff
asserts that the “CIA fails to explain with particularity why it identified no responsive records
about these ‘other systems of records within IMS’ in particular.” Id. at 4.
It is true that “the agency’s failure to turn up a particular document, or mere speculation
that as yet uncovered documents might exist, does not undermine the determination that the
agency conducted an adequate search for the requested records.” Wilbur, 355 F.3d at 678. At
the same time, however, agency affidavits must “‘explain in reasonable detail the scope and
method of the search conducted by the agency.” See Morley, 508 F.3d at 1121 (quoting Perry v.
Block, 684 F.2d 121, 127 (D.C. Cir. 1982)). In particular, in order to satisfy its burden of
establishing the adequacy of its search, an agency’s affidavit must “describe in . . . detail what
63
records were searched, by whom, and through what process.” Steinberg v. U.S. Dep’t of Justice,
23 F.3d 548, 552 (D.C. Cir. 1994). “A reasonably detailed affidavit, setting forth the search
terms and the type of search performed . . . is necessary to afford a FOIA requester an
opportunity to challenge the adequacy of the search and to allow the district court to determine if
the search was adequate in order to grant summary judgment.” Oglesby, 920 F.2d at 68.
The CIA has failed to meet its burden in this case. Critically, the CIA’s declaration does
not state what parameters were used to accomplish the search, i.e., whether the CIA searched for
the indices themselves or what search terms the CIA used to identify responsive records. The
CIA’s declaration merely states in conclusory fashion that “IMS employees . . . conducted an
adequate search for records responsive to Plaintiff’s request” by “search[ing] electronically for
responsive documents and manually search[ing] for independently known responsive
documents.” First Lutz Decl. ¶ 53. The CIA is correct that the plaintiff’s specific arguments
improperly focus on “the agency’s failure to turn up . . . particular document[s],” i.e., the search
indices themselves, and offer “mere speculation that as yet uncovered documents might exist,”
i.e., documents about other records systems. See Wilbur, 355 F.3d at 678. Even so, the
plaintiff’s arguments underscore the more fundamental deficiency in the CIA’s declaration,
which is that the CIA does not provide sufficient information for the Court to conclude that its
search methods were “reasonably calculated to uncover all relevant documents.” See Morley,
508 F.3d at 1114. Based on the vague and conclusory assertions in the CIA’s declaration, the
Court would be required to speculate in order to conclude that the agency’s search efforts “us[ed]
methods which can be reasonably expected to produce the information requested.” Oglesby, 920
F.2d at 68. The Court will therefore deny summary judgment to the CIA on Count Eighteen in
No. 11-444 with respect to the adequacy of the agency’s search.
64
2. Count Twenty in No. 11-444: September 25, 2009 FOIA Request to the
CIA
As stated above, the plaintiff submitted a FOIA request to the CIA on September 25,
2009, seeking “all [CIA] records, including cross-references, 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.”
First Lutz Decl. Ex. T at 1. In response to this request, the CIA’s declarant avers that “IMS
professionals determined that the Director’s Area was the only directorate reasonably likely to
have” responsive records. First Lutz Decl. ¶ 60. The Director’s Area then “tasked the [OGC] to
search for records responsive to the Plaintiff’s request.” Id. ¶ 61. The OGC in turn “searched
relevant records systems containing all files reasonably likely to contain responsive materials and
located no records responsive to Plaintiff’s request.” Id. ¶ 62. OGC further “consulted [the
CIA’s] Litigation Division management regarding this request” because the Litigation Division
“is the component within OGC that interacts most frequently with DOJ attorneys, usually on a
daily basis.” Id. According to the CIA’s declarant, “Litigation Division management confirmed
that as of [December 2010], no documents responsive to Plaintiff’s request existed.” Id.
The plaintiff again raises two objections to the adequacy of the CIA’s search. First, the
plaintiff raises what it refers to as “an existential problem—it is completely unfathomable that
the [OGC] would have no records pertaining to guidelines for the conduct of civil cases.” Def.’s
First 444 Opp’n at 26. Second, the plaintiff raises the “issue of cut-off dates.” Id. at 27. The
plaintiff states that the CIA “has a practice of assigning a cut-off date to every request of the date
the acknowledgement letter is written.” Id. Neither of these contentions is sufficient to defeat
summary judgment. As to the first, and as noted above, “the agency’s failure to turn up a
particular document, or mere speculation that as yet uncovered documents might exist, does not
65
undermine the determination that the agency conducted an adequate search for the requested
records.” Wilbur, 355 F.3d at 678. The plaintiff’s incredulity regarding the absence of
responsive records is insufficient to overcome an otherwise adequate search.
The second objection is premised on a semantic hair-splitting of the CIA’s declaration.
In particular, the plaintiff notes ambiguous language in the CIA’s declaration that could suggest
that the CIA did not search for any records created after the date the CIA accepted the plaintiff’s
FOIA request. See Pl.’s First 444 Opp’n at 6–7, 27–28. The plaintiff’s suspicions aside, the
Court reads the CIA’s declaration to state that the CIA searched for records referenced in the
plaintiff’s September 25, 2009 FOIA request as late as December 2011. See First Lutz Decl.
¶ 62. This is not an unreasonable cut-off date. See, e.g., Public Citizen v. Dep’t of State, 276
F.3d 634, 644 (D.C. Cir. 2002) (implicitly approving as reasonable a “date-of-search cut-off
[date]”).
Although neither of the grounds raised by the plaintiff is sufficient to defeat summary
judgment, the Court nevertheless cannot grant summary judgment to the CIA because the CIA’s
declaration fails to satisfy the minimal burden under the FOIA to establish the adequacy of the
search. It is axiomatic that, for an agency to win summary judgment in a FOIA case, the
agency’s justifications for its actions must be “specific” and “non-conclusory.” See, e.g., Am.
Civil Liberties Union v. CIA, 710 F.3d 422, 426 (D.C. Cir. 2013). The CIA’s declaration
regarding its search efforts in response to the plaintiff’s September 25, 2009 FOIA request,
however, are neither. The declaration, for example, uses amorphous terms like “relevant records
systems” and “all files reasonably likely to contain responsive materials,” without any
explanation of how the agency determined which records systems and files were relevant or
reasonably likely to contain responsive materials. See First Lutz Decl. ¶ 62. The CIA also does
66
not offer any reasoning for its conclusion that “the Director’s Area was the only directorate
reasonably likely to have” responsive records. Id. ¶ 60. Finally, the CIA provides no description
of the search parameters it used to locate responsive records. See, e.g., Oglesby, 920 F.2d at 68.
The Court cannot fill in these gaps for the agency under the auspices of good-faith deference. It
is the agency’s burden to supply this information to secure summary judgment, and the CIA has
failed to meet that burden. Accordingly, the Court will deny summary judgment to the CIA on
Count Twenty in No. 11-444 with regard to the adequacy of the agency’s search.
3. Count Nine in No. 11-445: February 6, 2010 FOIA Request to the State
Department
As discussed above, on February 6, 2010, the plaintiff submitted a FOIA request to the
State Department, seeking “copies of all current training handbooks, manuals, guidelines,
checklists, worksheets, and similar documents provided to [State Department] FOIA and Privacy
Act analysts (both agency employees and contractors).” First Walter Decl. Ex. 1, at 1. In
response, the State Department “determined that the office that was reasonably likely to have
responsive documents was the Bureau of Administration’s Office of Information Programs and
Services [‘IPS’].” First Walter Decl. ¶ 16. The State Department’s declarant explains: “Because
the request sought training materials provided to the [State] Department’s ‘FOIA and Privacy
Act analysts (both agency employees and contractors),’ the [State] Department only searched
IPS branches that employ FOIA and/or Privacy Act analysts because only those components
were reasonably likely to have documents responsive to the subject request.” Id. ¶ 18. In all, the
seven branches of IPS that employ FOIA or Privacy Act analysts were searched, and those
searches yielded 122 responsive records. See id. ¶¶ 18–24.
Also as discussed above, the State Department’s Bureau of Diplomatic Security (“DS”)
independently responded to the plaintiffs’ request on March 1, 2013, releasing twenty-six
67
responsive records that had not been released by IPS. See Notice of Recent Development
Regarding Count 9, at 1. As the State Department’s declarant explains, “IPS delegates limited
authority to certain [State] Department components, including DS [and four other State
Department components], to assist with the processing of [FOIA or Privacy Act] requests for
purposes of administrative expediency and efficiency.” Third Walter Decl. ¶ 3. Indeed, the
State Department’s declarant explains that these five State Department components, including
DS, “conduct their own FOIA/Privacy Act reviews and respond directly to requesters,” despite
the fact that “IPS is the [State] Department’s central office for the processing of FOIA/Privacy
Act requests and the development of FOIA policies and training.” Id. ¶ 4. Despite the fact that
DS released numerous, unique responsive records, “the [State] Department stands by its decision
to limits its search . . . to IPS.” Id.
Although the State Department appears unphased by the independent response of DS to
the plaintiff’s FOIA request, the Court views the matter differently. It is clear from the State
Department’s initial declaration that the reason the seven IPS components were selected as being
likely to contain responsive material is that they were the only branches of IPS “that employ
FOIA and/or Privacy Act analysts.” See First Walter Decl. ¶ 18. Yet, it is equally clear from the
State Department’s subsequent declaration that several other components of the State
Department employ FOIA or Privacy Act analysts. Indeed, the fact that five other components
of the State Department “conduct their own FOIA/Privacy Act reviews and respond directly to
requesters,” see Third Walter Decl. ¶ 4, establishes that IPS is not the only State Department
component likely to contain records responsive to the plaintiff’s February 6, 2010 FOIA request.
Therefore, since the State Department “stands by its decision to limits its search . . . to IPS,” id.,
the State Department has failed to satisfy its burden of establishing that it conducted an adequate
68
search under the FOIA. See, e.g., Ancient Coin Collectors Guild v. U.S. Dep’t of State, 641 F.3d
504, 514 (D.C. Cir. 2011) (agency’s affidavit must “aver[] that all files likely to contain
responsive materials (if such records exist) were searched” (internal quotation marks omitted)). 25
Accordingly, the Court will deny summary judgment to the State Department on Count Nine in
No. 11-445 in regard to the adequacy of the agency’s search.
4. Count Ten in No. 11-445: February 6, 2010 FOIA Request to the NSA
Also on February 6, 2010, the plaintiff submitted a substantially identical FOIA request
to the NSA. The only difference was that the request to the NSA sought training materials used
by NSA FOIA and Privacy Act analysts, rather than those from the State Department. See
Phillips Decl. Att. 1, at 2. The plaintiff raises only a narrow challenge to the adequacy of the
NSA’s search efforts, arguing that “many of the records released by NSA explicitly referenced
templates to be used for various FOIA letters by file name.” See Pl.’s First 445 Opp’n at 36.
The plaintiff argues that the NSA’s failure to search for and produce such templates renders the
25
The plaintiff also specifically takes issue with the fact that the State Department “refused to search for . . . and
process” three specific documents that the plaintiff believes “would be responsive to [its] requests.” See Pl.’s First
445 Opp’n at 36. To support its contention, the plaintiff relies on the fact that it sent an e-mail to the State
Department’s counsel on May 27, 2012—over four months after the State Department had provided a final response
to the plaintiff—requesting that the State Department search its Systematic Review Program (“SRP”) (a branch
within the ISP) for three specific documents that the plaintiffs believed were “clearly responsive” but had not been
released. See id. at 35. The plaintiff contends that this e-mail was a “clear lead” that the State Department failed to
follow, in violation of the FOIA. See id. at 35–36 (citing Halpern v. FBI, 181 F.3d 279, 288 (2d Cir. 1999)). The
plaintiff’s arguments in this regard do not demonstrate a deficiency in the State Department’s search efforts,
however, for three reasons. First, the State Department did search the SRP for responsive material. See First Walter
Decl. ¶ 23. Indeed, the SRP was searched both electronically and manually, using the keywords “training,”
“guidance,” “procedures,” and “processing.” Id. Second, the plaintiff has not demonstrated that the three
documents it seeks would in fact have been responsive to its FOIA request. In particular, the plaintiff has not made
any showing that the three documents in question were “in current use as of 6 February 2010,” which was an explicit
limitation on the scope of the request. See First Walter Decl. Ex. 1, at 1. Finally, and most fundamentally, the State
Department had no obligation to continue searching its records systems based on a “lead” provided by the requester
several months after the agency had already completed its search efforts. See, e.g. Campbell v. U.S. Dep’t of Justice,
164 F.3d 20, 28 (D.C. Cir. 1998) (“[T]he court evaluates the reasonableness of an agency’s search based on what the
agency knew at its conclusion rather than what the agency speculated at its inception.”); see also Iturralde v.
Comptroller of the Currency, 315 F.3d 311, 315 (D.C. Cir. 2003) (“[T]he adequacy of a FOIA search is generally
determined not by the fruits of the search, but by the appropriateness of the methods used to carry out the search.”);
Mobley v. CIA, No. 11-2072, 2013 WL 452932, at *13 n.14 (D.D.C. Feb. 7, 2013) (holding FBI had “no obligation
to follow up on any leads contained in” records that FBI was not aware of “before the conclusion of the FBI’s search
process”).
69
agency’s search efforts inadequate because “such templates fall clearly within the scope of ‘all
current training handbooks, manuals, guidelines, checklists, worksheets, and similar documents,’
especially given the clarification that this request was for ‘material used . . . to train personnel.’”
Id. at 36–37 (emphasis in original). The NSA, on the other hand, contends that these templates
were not responsive to the plaintiff’s FOIA request, stating that “[t]he templates are boilerplate
paragraphs, they do not contain any analysis, guidance, policy, or procedure for the NSA
employee to consider or evaluate when processing a FOIA request.” Phillips Decl. ¶ 8.
The D.C. Circuit has established that an agency “has a duty to construe a FOIA request
liberally,” Nation Magazine, 71 F.3d at 890, and is “bound to read it as drafted” not as “agency
officials . . . might wish it was drafted,” Miller v. Casey, 730 F.2d 773, 777 (D.C. Cir. 1984). In
this regard, it is clear that, for example, when a FOIA requester “seek[s] all of a certain set of
documents” while also “evincing a heightened interest in a specific subset thereof,” such a
request “is reasonably susceptible to the broader reading” of seeking the entire set of documents
despite the fact that a specific subset of documents is named. LaCedra v. Exec. Office for U.S.
Attorneys, 317 F.3d 345, 348 (D.C. Cir. 2003); see also Nation Magazine, 71 F.3d at 890(holding that FOIA request seeking records “‘pertaining to’ [Ross] Perot” and specifically
“ask[ing] for records indexed under Perot’s name” was “sufficient to alert the agency that
appellants sought information about Perot, even if it was not indexed under his name”). The
question presented regarding the adequacy of the NSA’s search is simply whether templates,
which appear to be used primarily as boilerplate language to respond to FOIA requesters, should
have been considered responsive to the plaintiff’s request for training materials.
The Court concludes that, reading the plaintiff’s FOIA request “liberally,” Nation
Magazine, 71 F.3d at 890, the templates referred to are responsive to the plaintiff’s request.
70
Templates used by agency personnel to respond properly and uniformly to FOIA requesters are
“material used . . . to train [FOIA] personnel,” which is the material for which the NSA
ostensibly searched. See Phillips Decl. Att. 2, No. 11-445, ECF No. 29-13. Such templates are
the functional equivalent of a guidance document instructing FOIA analysts what to say to
requesters in certain situations, and thus should have been considered “similar documents,” as
described in the plaintiff’s request. See Phillips Decl. Ex. 1, at 1. Indeed, the templates appear
to play an important role in the guidance documents that the NSA provides to its FOIA analysts.
See, e.g., Pl.’s First 445 Opp’n Ex. R at 2, No. 11-445, ECF No. 33-18 (“If no records are
located, the proper response letter to use is a PA Negative GLOMAR.”); id. at 3 (“If the
requester only requests records pertaining to these types of activities being used against him/her,
then the Case Officer should use the FOIA_Directed Energy letter and MR templates, and no
search request to Security is required.”). As a result, the Court denies summary judgment to the
NSA on Count Ten in No. 11-445.
***
In sum, the Court denies summary judgment to the CIA on Counts Eighteen and Twenty
in No. 11-444 with regard to the adequacy of the CIA’s search efforts. The Court further denies
summary judgment to the State Department and the NSA on Counts Nine and Ten in No. 11-445,
respectively, with respect to the adequacy of those agencies’ search efforts.
E. Refusals to Process Requests
As discussed above, the CIA refused to process seven FOIA requests submitted by the
plaintiff, and the plaintiff challenges those refusals here in four separate counts. The Court will
discuss the material requested in each of the seven requests and discuss whether it was
permissible for the CIA to refuse to process them.
71
1. Count Nine in No. 11-444: May 13, 2010 FOIA Request to the CIA
First, the CIA refused to process the plaintiff’s FOIA request which sought “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’).” See First
Lutz Decl. Ex. M at 1. As discussed above, see supra Part I.B.5, the plaintiff provided four
“guidelines” to the CIA regarding “what we consider a ‘representative sample,’” which included
(1) “[o]nly final official reports or memoranda that discuss an MPAC/OLA analyst’s conclusions
about a target’s psychology,” (2) “[n]o more than twenty reports/memoranda for each year,”
(3) “[f]our reports/memoranda for each year (unless less were created that year) for individuals
in each category of intelligence target,” and (4) “[r]easonable variety in the intelligence targets
wherever possible (e.g., foreign government officials should be from a variety of foreign
governments, terrorist leaders should be from different terrorist organizations, etc.).” Id. at 1–2.
As to the fourth guideline, NSC further stated that “[f]or the foreign government officials, we
would also appreciate if possible a variety of the type of officials (e.g., some heads of state, some
intelligence officials, some law enforcement officials, some financial officials, etc.).” Id. at 2.
Citing “the breadth and lack of specificity of [NSC’s] request,” the CIA refused to
process this request “because it would require the Agency to perform an unreasonably
burdensome search.” First Lutz Decl. Ex. N at 1. In assessing this response, the Court is guided
by two principles: First, “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) (internal quotation marks
omitted). Second, “[a]n agency need not honor a request that requires ‘an unreasonably
72
burdensome search.’” Am. Fed’n of Gov’t Emps., Local 2782 v. U.S. Dep’t of Commerce, 907
F.2d 203, 209 (D.C. Cir. 1990) (quoting Goland, 607 F.2d at 353). In this case, the CIA was
justified in refusing to process the plaintiff’s May 13, 2010 FOIA request because it did not
“reasonably describe[]” the records sought. See 5 U.S.C. § 552(a)(3)(A). The D.C. Circuit has
held 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 v. DEA, 678 F.2d 315, 326 (D.C. Cir. 1982) (quoting S. Rep. No. 93-854, at
10 (1974)).
Although the plaintiff provided “guidelines” to describe the category of records it sought,
those guidelines still left a significant amount of ambiguity about “precisely what records [were]
being requested.” Id. (internal quotation marks omitted). Notably, although the plaintiff limited
the date range and number of reports requested, the plaintiff’s request would still place an
unreasonable search burden for two primary reasons. First, the plaintiff’s guideline asking for
“[f]our reports/memoranda for each year (unless less were created that year) for individuals in
each category of intelligence target,” see First Lutz Decl. Ex. M at 1, would require the agency to
examine and sift through a larger body of records to ensure that only one report/memorandum
from a given category were included from any given year. This sort of sifting and analysis is
not a burden that the FOIA imposes on federal agencies. See, e.g., Assassination Archives &
Research Ctr. v. CIA, 720 F. Supp. 217, 219 (D.D.C 1989) (“FOIA was not intended to reduce
government agencies to full-time investigators.”). Second, the plaintiff’s request asked the CIA
to provide “[r]easonable variety in the intelligence targets,” and also asked for “a variety of the
type of officials.” See id. at 2. This sort of request is inherently burdensome because it requires
the agency to weigh whether the variety it has provided is “reasonable” or not, which
73
superimposes a layer of subjective analysis onto the agency’s response effort which the FOIA
does not require. 26
The Court appreciates the fact that this request was made because the CIA “refused to
process a previous request for all official final psychological profiles produced by the offices in
question,” see Pl.’s First 444 Opp’n at 18, but the plaintiff has taken one step forward and two
steps back with this most recent iteration of its request. The plaintiff was correct to begin
limiting its request by time and subject matter, but attempting to limit its request with vague and
malleable terms like “reasonable variety” is not, as the plaintiff contends, a “narrow and rigid
definition of what constitutes a representative sample.” See id. at 17. Such terms only cloaked
the plaintiff’s request in more uncertainty, and the CIA was not obligated to respond to it. The
Court will grant summary judgment to the CIA on Count Nine in No. 11-444.
2. Count Eight in No. 11-444: July 5, 2010 FOIA Request to the CIA
Second, the CIA (partially) refused to process the plaintiff’s 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.” See First Lutz Decl. Ex. K at 1. In its request letter, the
plaintiff laid out four methods by which the CIA could provide the information requested:
(1) “[a]n index including only the ten most prolific requesters for each year,” (2) “[a]n index
including all requesters for each year,” (3) “FOIA request letters from the ten most prolific
requesters for each year,” or (4) “[a]ll FOIA request letters submitted to the CIA for each year.”
Id. at 1–2. The CIA eventually agreed to process the fourth option, but after the plaintiff refused
26
Additionally, requiring agencies to respond to FOIA requests like this would open them up to a whole new
category of legal challenges regarding the adequacy of their search efforts. For example, a requester could later
claim that an agency did not search broadly enough because the records provided by the agency were not
sufficiently varied. Such a claim would pose difficulties to both agencies and courts in deciding what level of
“variety” is “reasonable” and what sort of search efforts are required to meet such a standard of reasonable variety.
It was precisely this sort of inquiry that the “reasonably describes” requirement in the FOIA was intended to avoid.
See 5 U.S.C. § 552(a)(3)(A).
74
to commit to pay the substantial duplication fees that would be required to satisfy the fourth
option (i.e., all FOIA request letters submitted from 2008–2010), the CIA closed the request. See
Seventh Lutz Decl. ¶ 7. The plaintiff narrowly challenges the “CIA’s refusal to produce the
record requested as ‘option 2’ in NSC’s request.” Pl.’s Second 444 Opp’n at 3. In this regard,
the plaintiff “concedes . . . that options 1 and 3 are not viable,” but the plaintiff nevertheless
maintains that “option 2 . . . is.” See id. at 3–4.
To support its contention about the feasibility of the CIA providing “[a]n index including
all requesters for each year,” the plaintiff points to “CADRE processing material” that was
included in a recent release made to a FOIA requester that is not a party to this lawsuit. See id. at
4. These materials, the plaintiff states, “show[] that the results of a CADRE search can be sorted
by FOIA request number,” and therefore “all that would need to be done to satisfy NSC’s request
would be to conduct a search of CADRE that yielded all requests, sort the results by Case Id, and
print those pages that contained the entries for 2008–2010.” Id. In this same vein, the plaintiff
contends that “there is no rule that says that an agency does not have to manually manipulate
database information if it is not unduly burdensome to do so, such as typing in a search term,
sorting the results, and printing them.” Id. at 4–5. According to the plaintiff, “[d]oing so is not
considered ‘creating a record.’” Id. at 5.
The Court has already addressed this question in its previous opinion. “[T]he FOIA
imposes no duty on the agency to create records.” Forsham v. Harris, 445 U.S. 169, 186 (1980);
accord Yeager, 678 F.2d at 321 (“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.”). In this regard, “[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); accord NSC I,
75
898 F. Supp. 2d at 270 (“[S]orting a pre-existing database of information to make information
intelligible does not involve the creation of a new record . . . .”). “Producing a listing or index of
records, however, is different than producing particular points of data (i.e., the records
themselves).” NSC I, 898 F. Supp. 2d at 271. “[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.” Id.; accord 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 defendant to create an agency record”).
Thus, the CIA is correct that “NSC’s argument ignores this Court’s decision” in
contending that the production of an index is not the creation of a record, where that index had
not been previously created and retained. See Reply in Supp. Def.’s Mot. Summ. J. on Counts
Eight and Twenty-One (“Def.’s Second 444 Reply”) at 3, No. 11-444, ECF No. 47. The CIA
avers that it “does not maintain an ‘index file’ of requesters.” See Seventh Lutz Decl. ¶ 8. 27 By
pointing to CADRE’s capability to sort search results by requester identity, the plaintiff merely
establishes that the CIA is capable of creating the record that the plaintiff seeks. That showing,
however, is insufficient to require the agency to produce such a record because that record is still
27
The CIA does say that it creates “FOIA case logs,” which “detail certain information about requests received by
the CIA on a quarterly basis (namely, the date that the FOIA request was opened, the request number, the subject of
the request).” Seventh Lutz Decl. ¶ 8 n.4. These case logs, however, do not appear to be the type of index that the
plaintiff seeks.
76
not one “that [the CIA] has in fact chosen to create and retain.” See Yeager, 678 F.2d at 321. As
a result, the Court will grant summary judgment to the CIA on Count Eight in No. 11-444. 28
3. Count One in No. 11-444: August 8, 2010 FOIA Requests to the CIA
Third, the CIA refused to process the plaintiff’s request for “a database listing of all the
FOIA requesters from FY 2008–present that [the CIA has] classified as” either “educational or
scientific,” “commercial,” “all other,” or “news media.” See First Lutz Decl. Exs. A–D. The
28
As the Court’s extensive discussion in its prior opinion underscores, distinguishing between (1) searching an
electronic database, which is required under the FOIA if it is reasonably likely to locate records responsive to a
request, and (2) creating new records or performing research, which agencies are not required to do by the FOIA,
“remains somewhat muddled.” See NSC I, 898 F. Supp. 2d at 270. It may seem a matter of legal hair-splitting to
conclude that producing a listing of search results or a listing that summarizes or describes the contents of an
electronic database is akin to the creation of a record, rather than being akin to conducting a search. This
conclusion, however, is weighty—steeped in myriad complexity and fraught with tension—and in the Court’s view,
this conclusion has significant implications for the scope of the FOIA. The Court will further discuss the two-fold
reasoning that leads to this result.
First, permitting a member of the public to request from an agency a listing of search results or a listing that
summarizes or describes the contents of an electronic database would permit the public to requisition the resources
of government agencies in a way that the FOIA did not intend. The FOIA was intended to provide access to records
held by federal agencies, nothing more. The FOIA was not intended to provide access to the mechanisms that
agencies use to retrieve or aggregate information. Although the FOIA is a powerful and necessary statute, it was not
intended to permit the public to commandeer agency employees as research assistants, including with respect to
performing queries in electronic databases. See Assassination Archives & Research Ctr., 720 F. Supp. at 219(“FOIA was not intended to reduce government agencies to full-time investigators.”).
The second premise of the Court’s holding focuses on the question of how the FOIA’s definition of a “record”
applies to information held in a database like the one at issue in Count Eight in No. 11-445, which holds information
extracted from FOIA requests and is used, inter alia, to locate and manage those underlying records. The statute’s
definition is only moderately helpful and largely circular, defining “record” in relevant part as “any information that
would be an agency record subject to the requirements of this section when maintained by an agency in any format,
including an electronic format.” 5 U.S.C. § 552(f)(2)(A). The obvious question left open by this statutory definition
is: What “would be an agency record subject to the requirements of this section”? See id. As applied to this case, a
difficulty arises because, when a database is queried, the listing which results from that query is essentially a unique
permutation of smaller, individual pieces of information. These individual pieces of information—for example, the
data points that populate a given field of the database—are records under the FOIA. It is for this reason, as the
Court previously noted, that “[t]he FOIA requires agencies to disclose all non-exempt data points that it retains in
electronic databases.” NSC I, 898 F. Supp. 2d at 272. The crux of the Court’s reasoning, however, is that when
those individual data points are uniquely arrayed—for example, when a query returns a list of search results—that
unique array (or “aggregation”) of the individual data points constitutes a distinct record. It is a distinct record
because the particular arrangement of data conveys a unique set of information—information that is distinct from
what the individual data points can convey when they are arranged differently or when they are not arranged in any
particular way at all. Thus, unless the agency has “chosen to create and retain” this unique aggregation or
arrangement of data points, production of such an aggregation or arrangement of data involves the creation of a new
record. See Yeager, 678 F.2d at 321. Yeager’s use of the word “retain” is crucial. An agency may have previously
run a search identical to the one for which a requester now seeks a listing of search results, and in doing so the
agency would have chosen to “create” the record in question already. Unless the agency in some way “retains” the
unique aggregation of data, however, that record, in its unique form, is not preserved in the agency’s electronic
version of a file cabinet.
77
CIA explains its refusal to process this request by saying that it “does not have the capability to
sort its incoming FOIA requests based on fee categories.” First Lutz Decl. ¶ 11. The CIA’s
declarant also states that “this information [i.e., fee category] is not included in the electronic
system,” though the CIA’s declarant also avers that “[f]ee category is not a mandatory field,” and
thus “this information is often not included in a FOIA request record.” Id. The plaintiff focuses
on the ambiguities in these statements, contending that (1) the word “incoming” is unclear, and
(2) the fact that fee information is only “often not included” is an indication that it is sometimes
included. See Pl.’s First 444 Opp’n at 10–11.
These ambiguities, however, only address the CIA’s capability of sorting FOIA requests
by fee category—they do not speak to whether the CIA has chosen to create and retain the
“database listings” that the plaintiff seeks. As to this latter issue, the principles outlined above
regarding the creation of records apply. See supra Part III.D.2. It is clear from the CIA’s
declaration that the agency has not chosen to create and retain such database listings, see First
Lutz Decl. ¶ 11 (“FOIA analysts would then be required to create new records that identify each
request by fee category and provide these newly created records to the Plaintiff.”), and the FOIA
does not obligate the CIA to create such database listings, see, e.g., Forsham, 445 U.S. at 186.
The plaintiff does not contest this, and in fact the plaintiff appears to recognize that creating a
new record would be required to respond to these requests. See Pl.’s First 444 Opp’n at 12 (“All
that a CIA FOIA analyst would have to do to fill these four requests is . . . [inter alia ] print out
the remaining entries into four documents, one for each category.” (emphasis added)). These
“four documents” the plaintiff seeks are not documents the CIA “has in fact chosen to create and
retain.” See Yeager, 678 F.2d at 321. Since the CIA was not required to create such records in
78
response to the plaintiff’s FOIA request, the Court will grant summary judgment to the CIA on
Count One in No. 11-444.
4. Count Ten in No. 11-444: February 16, 2011 FOIA Request to the CIA
Finally, the CIA refused to process the plaintiff’s FOIA request that sought “a copy of all
[CIA] records pertaining to the IBM supercomputer ‘Watson.’” See First Lutz Decl. Ex. O at 1.
The CIA says that it refused to process this request because it “does not specify what type of
information it seeks relating to Watson; instead, the request generally seeks all information on
Watson.” First Lutz Decl. ¶ 29 (emphasis in original). Furthermore, the CIA’s declarant states
that “it is difficult to determine where responsive information would likely be located within the
Agency because the request is so general,” and therefore “the CIA would be required to search
every office for any documents containing the word ‘Watson.’” Id. ¶31
The plaintiff opposes a grant of summary judgment to the CIA with respect to this
request, contending that the CIA is applying “the misguided rule that any request that contains
the word ‘pertaining to,’ ‘related to,’ or ‘relating to’ is automatically overbroad whenever [the
CIA] does not feel like processing it.” Pl.’s First 444 Opp’n at 19. The plaintiff then spends
several pages of its brief interpreting a case cited by the CIA from the District of Massachusetts,
which said that “[a] request for all documents ‘relating to’ a subject is usually subject to criticism
as overbroad since life, like law, is ‘a seamless web,’ and all documents ‘relate’ to all others in
some remote fashion.” See Mass. Dep’t of Pub. Welfare v. U.S. Dep’t of Health & Human
Servs., 727 F. Supp. 35, 36 n.2 (D. Mass. 1989) (Young, J.). The plaintiff concludes its exegesis
by hyperbolically asserting that “[the CIA’s] own exemption arguments would categorically
exempt all of its records from FOIA if Judge Young’s dicta became the law.” Pl.’s First 444
Opp’n at 22. Finally, the plaintiff argues that “[a]ny CIA professional who was familiar with the
subject area of the request (computer science or, more specifically, artificial intelligence) would
79
be able to easily determine which [CIA] components were likely to have responsive records.”
Id. at 23. In support of this latter assertion, the plaintiff cites the fact that “the NSA was able to
quickly search for and retrieve records responsive to an identical request.” Id. at 23 n.9. 29
With respect to the plaintiff’s contention about the CIA’s alleged “misguided rule,” this
Court previously dismissed the plaintiff’s related policy-or-practice claim, which alleged that the
CIA had “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.’” NSC I,
898 F. Supp. 2d at 273 (quoting 444 FAC ¶ 58). As the Court previously stated, “the question of
whether a particular FOIA request ‘reasonably describes’ the records sought is a highly context-
specific inquiry, ill-suited to abstract analysis.” Id. at 278. Thus, the Court will focus on the
specific context of the plaintiff’s FOIA request for “all [CIA] records pertaining to the IBM
supercomputer ‘Watson.’”
The plaintiff’s arguments regarding “the misguided rule” regarding requests that contain
the terms “relating to” or “pertaining to”—as well as the plaintiff’s related discussion of Judge
Young’s opinion in Mass. Dep’t of Pub. Welfare—miss the point. As the CIA clarifies in its
reply brief, “[t]he CIA determined that NSC’s request for all documents pertaining to Watson
was overly broad because the request did not allow CIA FOIA analysts to reasonably determine
where responsive records were likely to be located, not because the request contained the phrase
‘pertaining to.’” Def.’s First Reply to Opp. to Mot. for Summ. J. (“Def’s First 444 Reply) at 8,
11-444, ECF No. 27. Indeed, as the CIA’s declarant states, the CIA refused to process this
request because it would require the CIA “to search every office for any documents containing
29
The plaintiff also takes a pot shot at the CIA in this regard, stating that “the NSA FOIA Office proves capable of
FOIA processing feats only dreamt of at the CIA.” Pl.’s First 444 Opp’n at 23 n.9.
80
the word ‘Watson,” which the CIA characterizes as “a massive undertaking.” First Lutz Decl.
¶ 31.
The plaintiff only barely addresses this burden issue by contending that “[a]ny CIA
professional who was familiar with the subject area of the request (computer science or, more
specifically, artificial intelligence) would be able to easily determine which [CIA] components
were likely to have responsive records.” Pl.’s First 444 Opp’n at 23. Yet, the plaintiff’s
assertion begs the very question that underlies the CIA’s reason for refusing to process the
request in the first place. The plaintiff states that “the subject area of the request” is “computer
science or, more specifically, artificial intelligence,” see id., but that is not what the request itself
states. The request broadly seeks “all [CIA] records pertaining to the IBM supercomputer
‘Watson.’” See First Lutz Decl. Ex. O at 1. Such a request certainly contemplates records
related to the computing technology used to develop “Watson,” but the request also appears to
contemplate records that have very little or nothing to do with computer science, such as records
about business dealings involving “Watson,” or even informal e-mail exchanges among CIA
employees about “Watson’s” appearance on the television program Jeopardy!. All of these other
documents would be responsive to the plaintiff’s broad request as well, even if the plaintiff is not
interested in them. It is for this reason that the CIA “cannot reasonably formulate a search of
[its] decentralized records system to locate responsive records.” First Lutz Decl. ¶ 31.
Relatedly, although the plaintiff focuses on the oft-cited requirement that a request must
“‘enable[] a professional agency employee familiar with the subject area to locate the record with
a reasonable amount of effort,’” see Pl.’s First 444 Opp’n at 23 (quoting Judicial Watch v. Exp.-
Imp. Bank, 108 F. Supp. 2d 19, 27 (D.D.C. 2000)), the plaintiff fails to recognize that this is a
necessary, but not sufficient, condition of adequacy. Even where a request “identif[ies] the
81
documents requested with sufficient precision to enable the agency to identify them,” the request
may still fail to “reasonably describe[]” the records sought if it is “so broad as to impose an
unreasonable burden upon the agency.” See Am. Fed’n of Gov’t Emps., 907 F.2d at 209. 30 The
plaintiff’s February 26, 2011 FOIA request to the CIA was overly broad because it would require
the CIA to “search every office for any documents containing the word ‘Watson’” because “any
component is equally likely to have responsive records.” First Lutz Decl. ¶ 31; see, e.g.,
Oglesby, 920 F.2d at 68 (“There is no requirement that an agency search every record system.”);
Marks v. U.S. Dep’t of Justice, 578 F.2d 261, 263 (9th Cir. 1978) (holding that “the FOIA does
not mandate that [an agency] comply” with a request that would require “an all-encompassing
search of the records of every field office”). Therefore, the Court will grant summary judgment
to the CIA on Count Ten in No. 11-444. 31
***
30
For example, if a FOIA requester sought “all CIA records printed in the English language,” the agency certainly
would know what the requester was asking the agency to produce. The problem with such a request, however, is its
breadth, rather than its opaqueness.
31
The plaintiff also asserts in its briefing that the CIA failed to comply with its own regulation in refusing to process
each of these seven FOIA requests. See Pl.’s First 444 Opp’n at 9. That regulation, discussed in the Court’s
previous opinion, 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.” 32
C.F.R. § 1900.12(c). The plaintiff contends that the CIA “never ‘worked with’ NSC on any of these requests; it
never even contacted NSC before mailing its summary cancellation letters.” Pl.’s First 444 Opp’n at 9 (emphasis in
original). The plaintiff further contends that “if the Court finds that Defendant violated 32 C.F.R. § 1900.12(c) by
not contacting NSC prior to cancelling its requests, Defendant is not entitled to summary judgment on Counts 1, 8,
9, and 10.” Id. These arguments raise two issues: (1) whether the CIA violated 32 C.F.R. § 1900.12(c); and
(2) whether such a violation is a basis to deny summary judgment to the CIA under the FOIA. As to the first issue,
the CIA arguably did “work with, and offer suggestions to,” the plaintiff in response to some of its “expression[s] of
interest.” See 32 C.F.R. § 1900.12(c). For three of the seven requests in question, the CIA “encourage[d] [NSC] to
refine the scope of [its] request,” and provided specific ways in which the request could be refined in a way that
would enable the agency to process it. See First Lutz Decl. Exs. N, P. Even if the CIA did violate 32 C.F.R.
§ 1900.12(c) in responding to the plaintiff’s other FOIA requests, however, that is not a basis to deny summary
judgment to the CIA under the FOIA. As the Court noted in its previous opinion, a violation of an agency’s own
regulations (even if those regulations are related to the FOIA) are not violations of the FOIA itself and “are properly
addressed under the APA,” not the FOIA. See NSC I, 898 F. Supp. 2d at 266 (citing Muttitt v. U.S. Cent. Command,
813 F. Supp. 2d 221, 229 (D.D.C. 2011)).
82
In sum, the Court grants summary judgment to the CIA on Counts One, Eight, Nine, and
Ten in No. 11-444.
The Court will next discuss the challenges that the plaintiff makes to certain decisions by
the defendants to withhold responsive information under the FOIA’s statutory exemptions. The
plaintiff raises challenges to withholding determinations made pursuant to FOIA Exemptions 1,
2, 3, 5, and 6. The Court will discuss the arguments made about each exemption in turn.
F. Exemption 1
The plaintiff challenges Exemption 1 withholding determinations made by defendants
DIA and CIA. As to the CIA, the plaintiff specifically challenges the withholding pursuant to
Exemption 1 of (1) sixteen responsive records in full under Counts One, Two, Three, and Seven
in No. 11-445, and (2) article titles from 105 responsive records under Count Three in No. 11-
443. See Pl.’s First 445 Opp’n at 5; Pl.’s In Camera Opp’n to Def.’s Mot. Summ. J. on Count
Three (“Pl.’s First 443 Opp’n”) at 11–14, No. 11-443, ECF No. 58. 32 As to the DIA, the plaintiff
challenges the withholding pursuant to Exemption 1 of two documents in full related to Count
Five in No. 11-445. Pl.’s First 445 Opp’n at 6. The Court will begin by discussing the legal
standard applicable to Exemption 1 withholding determinations. The Court will then discuss the
Exemption 1 issues raised in No. 11-445 before turning to No. 11-443.
As discussed above, the general rule in FOIA cases is that “[i]f an agency’s affidavit
describes the justifications for withholding the information with specific detail, demonstrates that
the information withheld logically falls within the claimed exemption,” and “is not contradicted
by contrary evidence in the record or by evidence of the agency’s bad faith, then summary
32
The plaintiff appears to assert categorical opposition to the CIA’s Exemption 1 withholdings with respect to
article titles in records responsive to the FOIA request in Count Three in No. 11-443, though the plaintiff does
“concede[] that some of the information withheld under Exemption (b)(1) is properly classified.” See Pl.’s First 443
Opp’n at 11. The plaintiff contends that “the Court has no way of knowing which of the withheld information
actually meets the criteria for classification, because CIA’s Vaughn index entries consist generally of nothing more
informative than a parroting of the statutory standard.” See id. at 11–12.
83
judgment is warranted on the basis of the affidavit alone.” ACLU/DOD, 628 F.3d at 619. FOIA
Exemption 1 provides that “matters that are” either “specifically authorized under criteria
established by an Executive order to be kept secret in the interest of national defense or foreign
policy” or “are in fact properly classified pursuant to such Executive order” are exempt from
production under the FOIA. See 5 U.S.C. § 552(b)(1). “[I]n the FOIA context, [the D.C. Circuit
has] consistently deferred to executive affidavits predicting harm to the national security, and
have found it unwise to undertake searching judicial review.” Ctr. for Nat’l Sec. Studies, 331
F.3d at 927. “The CIA’s arguments need only be both ‘plausible’ and ‘logical’ to justify the
invocation of a FOIA exemption in the national security context.” ACLU/DOD, 628 F.3d at 624(quoting Wolf v. CIA, 473 F.3d 370, 374–75 (D.C. Cir. 2007)); accord Morley, 508 F.3d at 1124(“[T]he text of Exemption 1 itself suggests that little proof or explanation is required beyond a
plausible assertion that information is properly classified.”).
1. Exemption 1 Withholdings in No. 11-445 (CIA and DIA)
In No. 11-445, the plaintiff broadly argues that the declarations offered by the CIA and
the DIA to establish the applicability of Exemption 1 are insufficient because they only contain
“a simple recitation of the statutory standard.” See Pl.’s First 445 Opp’n at 7; accord id. at 8–9
(“Simply stating without any support that information is related to intelligence sources and
methods is not sufficient, regardless of the deference given to agencies in national security
matters.”). In this regard, the plaintiff asks the Court to “order [the CIA and DIA] to promptly
file a more sufficient Vaughn index consisting of something more than a parroting of the
statutory standards.” Id. at 9. The plaintiff contends that this “something more” should, inter
alia, “include the date of classification of each document and the person who classified it, to
ensure that the information was classified in accordance with Executive Order 13526.” Id.
84
The CIA’s declarant explains that information withheld under Exemption 1 in No. 11-445
falls into two categories: (1) “information on unacknowledged persons and activities,” or (2) “the
specifics of FOIA requests referred from other government agencies for which the CIA sought
non-attribution.” Third Lutz Decl. ¶ 27. The CIA’s declarant clarifies that both categories of
information “implicat[e] intelligence activities,” and the documents in question specifically
contain (1) “acronyms which disclose the CIA’s involvement in geographic locations and
intelligence operations not officially acknowledged,” and (2) “information that would disclose
the fact that the CIA collected intelligence on certain individuals and event[s] which have not
been officially acknowledged.” Id. ¶ 28, 30. The CIA has also provided a document-by-
document Vaughn index, which describes the general character of each withheld document and
the exemption or exemptions claimed for each. See Third Lutz Decl. Ex. K, No. 11-445, ECF
Nos. 29-2 through 29-7. With respect to the two documents withheld under Exemption 1 by the
DIA, the agency states in its Vaughn index that both documents “consist[] of a work tasking
within the Intelligence Community on a classified subject matter” and “would reveal an
intelligence sources and methods [sic] and would therefore compromise the intelligence
information collection mission effectiveness of the intelligence community.” See Supp. Decl. of
Alesia Y. Williams (Nov. 8, 2012) (“Second Williams Decl.”) Ex. A at 18, 24, No. 11-445, ECF
No. 35-1.
Upon consideration of the sworn declarations and accompanying Vaughn indices
provided by the CIA and DIA, the Court is satisfied that both agencies have provided “a
plausible assertion that information is properly classified.” See Morley, 508 F.3d at 1124. It is
reasonably clear from the materials provided by both agencies that the information withheld
pursuant to Exemption 1 is properly classified because it would compromise important
85
intelligence-gathering activities if it were disclosed. As to the CIA, the plaintiff concedes that
“[t]o the extent the withheld information” contains (1) “acronyms which disclose the CIA’s
involvement in geographic locations and intelligence operations not officially acknowledged,”
and (2) “information that would disclose the fact that the CIA collected intelligence on certain
individuals and event[s] which have not been officially acknowledged,” the plaintiff “does not
challenge CIA’s withholdings under Exemption 1.” See Pl’s First 445 Opp’n. at 6. The plaintiff
nevertheless maintains that “the Court has no way of knowing which of the withheld information
actually does fall within these criteria.” Id.The Court disagrees. The plaintiff is reading the CIA’s declaration and Vaughn index in
isolation, rather than reading both documents together. Although the CIA’s Vaughn index only
states, for example, that information was withheld because it “contains classified information
disclosing intelligence sources and methods,” see, e.g., Third Lutz Decl. Ex. K pt. 1, at 109, No.
11-445, ECF No. 29-2, the CIA’s declaration explains in much more detail what is meant by
“intelligence sources and methods” or “intelligence activities,” see Third Lutz Decl. ¶¶ 29–30.
Hence, reading all of the CIA’s materials together, the CIA has plausibly established that the
information withheld contains information about intelligence-gathering activities, and given that
conclusion, the plaintiff appears to concede that the CIA’s Exemption 1 withholdings are entitled
to summary judgment. See Pl.’s First 445 Opp’n at 6 (“To the extent the withheld information
falls within one of these two criteria, NSC does not challenge CIA’s withholdings under
Exemption (b)(1).”).
The same is true of the DIA’s declaration, though the DIA’s declaration provides less
detail about the nature of the classified information that was withheld. As discussed above, the
DIA’s Vaughn index states that each of the two documents withheld under Exemption 1 are
86
“document[s] consist[ing] of a work tasking within the Intelligence Community on a classified
subject matter,” which “would reveal . . . intelligence sources and methods and would therefore
compromise the intelligence information collection mission effectiveness of the intelligence
community.” Second Williams Decl. Ex. A at 18, 24. This is undoubtedly “something more
than a parroting of the statutory standards.” See Pl.’s First 445 Opp’n at 9. Although many
details of these two documents remain unknown, the DIA’s declaration plausibly establishes that
the withheld information relates to sensitive operations within the Intelligence Community, the
substance of which is properly classified in the interest of national security. That is sufficient to
grant summary judgment. See Morley, 508 F.3d at 1124.
The plaintiff asserts that “something more” is required to warrant summary judgment
under FOIA Exemption 1, and suggests two specific pieces of information in this regard: (1) “the
date of classification of each document,” and (2) “the person who classified it.” Pl.’s First 445
Opp’n at 9. The plaintiff’s reason for demanding this information is that it is necessary “to
ensure that the information was classified in accordance with Executive Order 13526.” Id. The
Court construes the plaintiff to assert that the CIA and DIA have not complied with the
procedural requirements of Executive Order 13,526, and in particular § 1.7(d) of that Executive
Order. That provision states that information sought through a FOIA request may be classified
after the request is submitted, but “only if such classification . . . is accomplished on a document-
by-document basis with the personal participation or under the direction of the agency head, the
deputy agency head, or the senior agency official.” Exec. Order 13,526 § 1.7(d).
At the outset, Executive Order 13,526 does not require that a classifying authority
indicate when information is originally classified. See, e.g., Judicial Watch, Inc. v. U.S. Dep’t of
Def., 857 F. Supp. 2d 44, 58 (D.D.C. 2012) (observing that “[Executive Order] 13526 does not
87
require that the date of classification be indicated on the records themselves”). Likewise,
Executive Order 13,526 does not require that a classifying authority indicate “the person who
classified” the information in question, as the plaintiff asserts. See Pl.’s First 445 Opp’n at 9.
Rather, with regard to the identity of the party classifying information, the Executive Order only
requires that an “original classification authority is classifying the information,” see Exec. Order
13,526 § 1.1(a), and the plaintiff does not contend that the information withheld by either the
DIA or the CIA was classified by someone other than an “original classification authority.”
The crux of the plaintiff’s somewhat veiled procedural argument is that the CIA and the
DIA were required to provide the date of classification and the identity of the classifying
authority in order to ensure that those agencies complied with § 1.7(d). Section 1.7(d), however,
only applies when information is “classified or reclassified after an agency has received a request
for it under the [FOIA]” or other similar statutes. See Exec. Order 13,526 § 1.7(d). The plaintiff
essentially argues that it is the agency’s burden under FOIA Exemption 1 to establish
affirmatively in every instance whether information was classified before or after a FOIA request
for that information was submitted.
The Court disagrees. As the Court has previously held, “an agency need only satisfy the
requirements of Executive Order § 1.1(a) to classify information properly for purposes of FOIA
Exemption 1.” Mobley, 2013 WL 452932, at *20 (collecting cases). If the agency’s release or
other representations suggest that information may have been classified after the relevant FOIA
request was submitted, the agency has the burden of coming forward with evidence to establish
either (1) the information was classified prior to the FOIA request; or (2) the agency satisfied the
requirements of § 1.7(d). See, e.g., TREA Senior Citizens League v. U.S. Dep’t of State, No. 10-
1423, 2013 WL 458297, at *5 (D.D.C. Feb. 7, 2013) (agency required to demonstrate
88
compliance with § 1.7(d) where agency declaration stated that information “‘was originally
UNCLASSIFIED,’ but ‘is currently classified CONFIDENTIAL’”). It is the plaintiff’s initial
burden, however, to raise a genuine factual question regarding whether information was
classified after a FOIA request was submitted for that same information, and only then would the
burden shift to the agency to establish that either (1) the information was classified prior to the
FOIA request; or (2) the agency satisfied the requirements of § 1.7(d). 33 See, e.g., Larson, 565
F.3d at 867 (where agency’s affidavit demonstrates that information was properly classified
under Executive Order, summary judgment is warranted so long as “[t]he affidavit is not
controverted by any contrary evidence in the record or any evidence suggesting agency bad
faith”).
In this case, the plaintiff seeks to satisfy its initial burden by pointing to the fact that nine
of the sixteen documents withheld under Exemption 1 by the CIA—all of which were responsive
to the FOIA requests challenged in Counts One and Two in No. 11-445—“have ‘Unclassified’
written next to Classification in the Vaughn indices.” See Pl.’s First 445 Opp’n at 5 n.6.
According to the plaintiff, “[t]his suggests that the information was not classified until after CIA
received these FOIA requests.” Id. The Court agrees. The denomination of these nine
documents 34 as “Unclassified” in the CIA’s Vaughn index raises a genuine factual question
regarding whether the classified information contained in these documents was classified prior to
the FOIA requests submitted by the plaintiff. Accordingly, the burden is now on the CIA to
establish that either (1) the information in these nine documents was classified prior to the
33
The Court recognizes that satisfying this initial burden may be difficult in most cases because classifying
authorities are not required to indicate the date of classification under Executive Order 13,526. See Judicial Watch,
857 F. Supp. 2d at 58.
34
The nine documents are identified in the CIA’s Vaughn index by the following Bates numbers: C05366473,
C01499710, C05403192, C05403194, C05403197, C05403198, C05403199, C05403203, and C05549838. The first
of these documents was responsive to the FOIA request at issue in Count One in No. 11-445, while the latter eight
were responsive to the FOIA request at issue in Count Two in No. 11-445.
89
plaintiff’s FOIA request; or (2) the agency satisfied the requirements of § 1.7(d) in classifying
the information. The CIA may satisfy the burden by submitting a supplementary declaration.
The plaintiff does not, however, raise any genuine factual question regarding whether the DIA
properly classified the information contained in the two disputed documents related to Count
Five in No. 11-445. The DIA has thus satisfied its burden of plausibly establishing that the
information contained in those two documents was properly classified under Executive Order
13,526.
Therefore, with respect to information withheld under Exemption 1, the Court grants
summary judgment to the DIA on Count Five in No. 11-445, and the Court also grants summary
judgment to the CIA on Counts Three and Seven in No. 11-445. The Court denies summary
judgment to the CIA, however, on Counts One and Two in No. 11-445 with respect to
information withheld under Exemption 1. Specifically, the CIA has not satisfied its burden of
demonstrating that nine records responsive to the FOIA requests at issue in Counts One and Two
were properly classified, as discussed above.
2. Exemption 1 Withholdings in No. 11-443
The plaintiff also challenges the CIA’s decision to withhold dozens of article titles from
documents that were responsive to the plaintiff’s May 12, 2010 FOIA request for “all Tables of
Contents (‘TOCs’) from the [CIA] in-house journal Studies in Intelligence.” See Second Lutz
Decl. Ex. A at 1. The plaintiff’s argument in this regard is two-fold. First, the plaintiff argues
that the “CIA has exhibited the ‘general sloppiness’ of its FOIA review process in several ways,”
and therefore the plaintiff believes that “the Court should not afford substantial weight to the
assertions made in the Lutz Declaration.” See Pl.’s First 443 Opp’n at 6, 11. Second, the
plaintiff makes essentially the same argument it made in No. 11-445: the CIA is not entitled to
summary judgment “because CIA’s Vaughn index entries consist generally of nothing more
90
informative than a parroting of the statutory standard.” See id. at 11–12. With regard to both
arguments, the plaintiff points to several pieces of information that the CIA withheld from
disclosure, which are publicly available. See id. at 6 (“NSC has identified no less than eighty-six
pieces of information withheld by CIA which have been officially disclosed elsewhere.”); id. at
12 (pointing to the “banal and generic” nature of “officially disclosed information . . . which was
withheld under Exemption (b)(1)”).
As to the first argument, the Court agrees with the CIA that the plaintiff’s argument is
“based on the faulty premise that agencies are required to exhaustively search public sources to
determine whether information is publically available before asserting FOIA exemptions.” See
Def.’s Reply in Supp. Mot. Summ. J. on Count Three (“Def.’s First 443 Reply”) at 3, No. 11-
443, ECF No. 43. Agencies do not have an affirmative duty to ascertain whether information has
been made publicly available before deciding to withhold it from release under the FOIA. See,
e.g., Davis v. Dep’t of Justice, 968 F.2d 1276, 1279 (D.C. Cir. 1992) (“[T]he task of proving the
negative—that information has not been revealed—might require the government to undertake
an exhaustive, potentially limitless search.”). Therefore, the fact that certain pieces of
information withheld by the CIA had previously become publicly available does not demonstrate
any “general sloppiness” on the part of the CIA that would undercut the “substantial weight”
accorded to “an agency’s affidavit concerning the details of the classified status of the disputed
record.” See Afshar v. Dep’t of State, 702 F.2d 1125, 1131 (D.C. Cir. 1983). 35 This is especially
35
It makes no difference that “a significant majority of the officially disclosed information is present on CIA’s
website . . . or in other official CIA publications.” See Pl.’s First 443 Opp’n at 7. To meet its burden at summary
judgment, an agency is not required to demonstrate that it exhaustively cross-referenced information responsive to a
FOIA request with every officially disclosed piece of information to determine whether it is publicly available—
even if the agency responding to the request is the same agency that previously disclosed the information. See
Davis, 968 F.2d at 1279. Rather, the initial burden of production on the issue of official disclosure lies with the
requester, who must “point to ‘specific’ information identical to that being withheld.” Id. at 1280. If the requester
carries its burden, of course the agency would then be required to produce the withheld information the requester,
see, e.g., Fitzgibbon v. CIA, 911 F.2d 755, 765 (D.C. Cir. 1990) (“[W]hen information has been ‘officially
91
true in a case like the instant one where the CIA made eminently reasonable efforts to determine
whether information contained in the withheld records had been previously made available
through any form of official public disclosure. See Supp. Decl. of Martha M. Lutz (Nov. 15,
2012) (“Fourth Lutz Decl.”) ¶¶6–7, No. 11-443, ECF No. 43-1. Therefore, the Court does not
find the plaintiff’s examples of withheld but publicly available information to be evidence of
“general sloppiness” on the part of the CIA. 36
The plaintiff’s second argument does not fare any better. At the outset, the Court notes
one point of confusion regarding the plaintiff’s challenge with respect to the information
withheld by the CIA under Exemption 1. As discussed above, the plaintiff points to dozens of
pieces of information—including some article titles—that were withheld by the CIA under
Exemption 1, but which are also publicly available. See Pl.’s First 443 Opp’n at 6–10, 12–13. It
is unclear, however, whether the plaintiff seeks an order from the Court directing the CIA to
provide copies of this publicly available information to the plaintiff in connection with its FOIA
request. The CIA appears to indicate that if any information was released through a “form of
official public disclosure,” the CIA “released the identical information” to the plaintiff. See
Fourth Lutz Decl. ¶ 7. The plaintiff appears only to be using these alleged official disclosures of
information to undermine the credibility of the CIA’s declarations. In any event, this issue now
appears moot because the CIA has provided the plaintiff with any officially disclosed
acknowledged,’ its disclosure may be compelled even over an agency’s otherwise valid exemption claim.”), but the
agency does not bear the burden of establishing an exhaustive public records search in the ordinary course of
seeking summary judgment in a FOIA case.
36
As discussed below, see infra note 49, the plaintiff does not make clear in its briefing whether it is making an
argument premised on “bad faith” or “general sloppiness” in No. 11-443. To the extent that the plaintiff presents the
examples of withheld but publicly available information to be evidence of “bad faith,” in addition to “general
sloppiness,” the Court concludes that such examples are not evidence of bad faith for the same reasons it concludes
that they are not evidence of “general sloppiness.”
92
information, and the plaintiff does not ask the Court to order the CIA to disclose any officially
disclosed information.
The CIA justifies its withholding of information under FOIA Exemption 1 by stating,
inter alia, that “the documents at issue implicate intelligence activities.” See Second Lutz Decl.
¶ 28. Specifically, “the withheld information would reveal the Agency’s presence in certain
foreign countries, the location of certain covert operations, intelligence collection techniques,
and clandestine relationships with certain foreign governments.” Id. Unsurprisingly, the CIA
avers that unauthorized disclosure of this information “could reasonably be expected to result in
damage or serious damage to the national security.” Id. The CIA’s declarant also goes on to
describe in more detail the nature of “intelligence activities” and “foreign relations and
activities” and why the release of information about these activities would harm the national
security of the United States. See id. ¶¶ 30–34.
Despite the CIA’s explanation regarding the classified information that it withheld under
Exemption 1, the plaintiff complains that “the Court has no way of knowing which of the
withheld information actually meets the criteria for classification, because CIA’s Vaughn index
entries consist generally of nothing more informative than a parroting of the statutory standard.”
See Pl.’s First 443 Opp’n at 11–12. Once again, however, the plaintiff narrowly focuses its
attention on the CIA’s Vaughn index in isolation, without reading the Vaughn index in
conjunction with the CIA’s declaration. Reading the two documents together, the CIA has
clearly established that the article titles it withheld under FOIA Exemption 1 plausibly fall within
that exemption. 37
37
The plaintiff agreed to limit the scope of its challenge in Count Three of No. 11-443 to “the redaction of titles in
the Studies of Intelligence [sic] tables of contents.” Second Lutz Decl. ¶ 20. The plaintiff has stated that it “will
abide by its agreement,” but nevertheless urges this Court to “rule sua sponte on CIA’s withholdings of authors’
93
The plaintiff attempts to undercut this conclusion by pointing to four examples of Studies
in Intelligence article titles that were withheld by the CIA under Exemption 1 but that are also
publicly available. See Pl.’s First 443 Opp’n at 12. The plaintiff notes that these are “banal and
generic titles,” which the plaintiff claims “further demonstrate[es] the lack of weight that should
be given to CIA’s assertions.” Id. Once again, the Court disagrees. The fact that certain titles
may appear to a lay person as “generic” or “banal” has no bearing on whether the information
was properly classified. It is well understood in this Circuit that “the judiciary is in an extremely
poor position to second-guess the executive’s judgment in th[e] area of national security.” Ctr.
for Nat’l Sec. Studies, 331 F.3d at 928. Furthermore, this Circuit has recognized that “[m]inor
details of intelligence information may reveal more information than their apparent
insignificance suggests because, ‘much like a piece of jigsaw puzzle, each detail may aid in
piecing together other bits of information, even when the individual piece is not of obvious
importance in itself.’” Larson, 565 F.3d at 864 (quoting Gardels v. CIA, 689 F.2d 1100, 1106
(D.C. Cir. 1982)). Since this Court lacks the expertise to second-guess the appropriateness of
classifying certain information simply because it may appear harmless, the Court will not venture
to do so here.
In one final attempt to avoid summary judgment, the plaintiff raises anew the argument,
discussed above, that the CIA is required to demonstrate compliance with § 1.7(d) of Executive
Order 13,526. See Pl.’s First 443 Opp’n at 13–14; see also supra Part III.E.1(a). This time, the
plaintiff argues that the “CIA should be required to explain how its statement to the Court that its
declaration only describes the classification status of this information in December 2011 can be
reconciled with the plain language of the Lutz Declaration, signed 8 August 2012, which states
names.” Pl.’s First 443 Opp’n at 2. The Court declines the plaintiff’s invitation and will rule only on those aspects
of the CIA’s withholding that are disputed by the plaintiff in Count Three of 11-443, i.e., article titles.
94
in the present tense, “I have determined that . . . this information is currently and properly
classified.’” Pl.’s First 443 Opp’n at 14 (emphasis in original) (citation omitted). The first CIA
statement referenced by the plaintiff actually said that “[i]nformation that was properly classified
and withheld from the CIA’s FOIA production in December 2011, may no longer be classified.”
See Joint Status Report at 2. This is not the same as saying the CIA’s declaration “only describes
the classification status of this information in December 2011,” as the plaintiff claims. See Pl.’s
First 443 Opp’n at 14 (emphasis omitted). The fact that information that was withheld as
classified in December 2011 “may no longer be classified,” see Joint Status Report at 2
(emphasis added), is not inconsistent with the statement that such information currently remains
classified. The plaintiff has thus failed to raise a genuine factual question regarding whether the
article titles withheld by the CIA were classified after a FOIA request was submitted for them,
and therefore the CIA carries no burden to demonstrate its compliance with § 1.7(d) of Executive
Order 13,5256. Therefore, the Court grants summary judgment, in part, to the CIA on Count
Three in No. 11-443 with respect to the information withheld by the agency under FOIA
Exemption 1.
The Court denies summary judgment, in part, however, with respect to a single document
withheld in part by the CIA under Exemption 1. That document was located and released in part
by the CIA on November 15, 2012, when the CIA filed its reply brief in No. 11-443. See Fourth
Lutz Decl. ¶ 11. The only information provided by the CIA about this document is that it is “a
two-page classified TOC from volume 53 (number 2)” of Studies in Intelligence. See id. The
plaintiff has clarified that it challenges these Exemption 1 redactions made by the CIA. See
Notice of Clarification at 1, No. 11-443, ECF No. 60. The CIA has not provided sufficient
information about this document to satisfy its burden under the FOIA, and therefore the CIA will
95
be required to submit a further supplemental affidavit to establish that the portions of this
document withheld under Exemption 1 “are in fact properly classified.” See 5 U.S.C.
§ 551(b)(1).
***
In sum, with respect to information withheld pursuant to Exemption 1, the Court grants
summary judgment to the DIA on Count Five in No. 11-445, and to the CIA on Counts Three
and Seven in No. 11-445. The Court grants in part and denies in part summary judgment to the
CIA on Counts One and Two in No. 11-445 and on Count One in No. 11-443. With respect to
Counts One and Two in No. 11-445, the Court denies summary judgment to the CIA as to the
withholding of nine documents labeled with Bates numbers: C05366473, C01499710,
C05403192, C05403194, C05403197, C05403198, C05403199, C05403203 and C05549838.
The Court grants summary judgment to the CIA on Counts One and Two in No. 11-445 in all
other respects related to the withholding of information pursuant to Exemption 1. With respect
to Count One in No. 11-443, the Court denies summary judgment as to the “two-page classified
TOC from volume 53 (number 2)” of Studies in Intelligence. See Fourth Lutz Decl. ¶ 11. The
Court grants summary judgment to the CIA on Count One in No. 11-443 in all other respects
related to the withholding of information pursuant to Exemption 1.
G. Exemption 2
The CIA withheld thirteen documents in full under FOIA Exemption 2. 38 See Third Lutz
Decl. Ex. K pt. 2, at 1, 8–14, 16–18, 22, 27, No. 11-445, ECF No. 29-3. Exemption 2 applies to
matters that “related solely to the internal personnel rules and practices of an agency.” 5 U.S.C.
§ 552(b)(2). The CIA states in its declaration that all thirteen documents withheld under
38
The plaintiff previously indicated that it intended to challenge Exemption 2 withholding decisions made by the
ODNI as well. See Hackett Decl. Ex. E at 1, ECF No. 29-8. The plaintiff, however, does not pursue that challenge
in its opposition to the defendants’ motions for summary judgment in No. 11-445.
96
Exemption 2 “are internal training documents containing the procedures and guidelines utilized
by CIA officers in processing FOIA and Privacy Act requests.” Third Lutz Decl. ¶ 31. The
plaintiff concedes that “the withheld records . . . technically pertain to personnel, in that they are
instructions for personnel to follow.” Pl.’s First 445 Opp’n at 9. The plaintiff nevertheless
contends that, “[i]n order to be properly withheld [under Exemption 2], the information must be
of a relatively trivial nature.” Id. (citing Dep’t of Air Force v. Rose, 425 U.S. 352, 369–70
(1976) and Lesar v. DOJ, 636 F.2d 472, 485 (D.C. Cir. 1980)). This triviality requirement
applies, according to plaintiff, because the rationale for Exemption 2 is “that the very task of
processing and releasing some requested records would place an administrative burden on the
agency that would not be justified by any genuine public benefit.” Id. at 9–10 (collecting cases).
The plaintiff contends that “public awareness of how the CIA processes FOIA requests is of
great public benefit, especially to the FOIA requester community.” Id. at 10 (emphasis in
original). In an attempt to refute the viability of the plaintiff’s triviality requirement, the CIA
cites to Milner v. U.S. Department of the Navy, 131 S. Ct. 1259 (2011), which recently limited
the reach of Exemption 2, as well as Institute for Policy Studies v. CIA, 885 F. Supp. 2d 120, 146
(D.D.C. 2012), which was a post-Milner case that permitted the CIA’s withholding of “the
signature of a CIA officer as well as internal filing instructions and administrative routing
information” under Exemption 2. While the CIA is correct in positing that the plaintiff’s
proposed triviality requirement has no basis in Exemption 2, the Milner case is otherwise not
helpful to the CIA’s effort to cloak its nondisclosure under this exemption.
The Supreme Court in Milner held that the phrase “personnel rules and practices” in
Exemption 2 refers to an agency’s “rules and practices dealing with employee relations or human
resources.” Milner, 131 S. Ct. at 1265. Without attempting to “formulate a comprehensive list,”
97
the Supreme Court held that “all the rules and practices referenced in Exemption 2 share a
critical feature: They concern the conditions of employment in federal agencies—such matters as
hiring and firing, work rules and discipline, compensation and benefits.” Id. The Supreme Court
in Milner also specifically considered the government’s argument that Exemption 2
“‘encompasses records concerning an agency’s internal rules and practices for its personnel to
follow in the discharge of their governmental functions.’” Id. at 1269. The Supreme Court
rejected this “odd reading” of the statute, holding instead that “[t]he use of the term ‘personnel’
[in Exemption 2] connotes not that the . . . practice/rule is for personnel, but rather that [it] is
about personnel—i.e., that it relates to employee relations or human resources.” Id. at 1269–70
(emphasis in original). Indeed, the Supreme Court in Milner said that the government’s
proposed construction of Exemption 2 would “strip[] the word ‘personnel’ of any real meaning,”
extending Exemption 2 to “all [an agency’s] internal rules and practices” because “agencies
necessarily operate through personnel, and so all their internal rules and practices are for
personnel.” Id. at 1269. The Court cautioned that the government’s proposed construction
“would produce a sweeping exemption, posing the risk that FOIA would become less a
disclosure than ‘a withholding statute’ since “[m]any documents an agency generates in some
way aid employees in carrying out their responsibilities.” Id. at 1270.
The Supreme Court’s guidance in Milner is crystal clear regarding the scope of
Exemption 2, and it is equally clear, under Milner, that Exemption 2 does not apply to the
“internal training documents” withheld by the CIA. See Third Lutz Decl. ¶ 31. These
documents, which “contain[] the procedures and guidelines utilized by CIA officers in
processing FOIA and Privacy Act requests,” id., are not human resources documents. Instead,
they are the very “records concerning an agency’s internal rules and practices for its personnel to
98
follow in the discharge of their governmental functions,” which the Supreme Court specifically
excluded from the scope of Exemption 2. See Milner, 131 S. Ct. at 1269. As a result, the Court
will deny summary judgment to the CIA on Count Seven in No. 11-445, regarding the agency’s
decision to withhold thirteen documents under FOIA Exemption 2. 39
***
In sum, the Court denies summary judgment to the CIA on Count Seven in No. 11-445,
regarding the agency’s decision to withhold thirteen documents under FOIA Exemption 2.
These documents are labeled in the CIA’s Vaughn index as: C05520233, C05520227,
C05520231, C05520236, C05520235, C05520226, C05520181, C05520232, C05520213,
C05520218, C05520223, C05520228, and C05520234.
H. Exemption 3
Next, the plaintiff challenges the withholding of several hundred records by the CIA,
DIA, and ODNI, in whole or in part, under FOIA Exemption 3. 40 That exemption, in the context
of this case, applies to matters “specifically exempted from disclosure by statute . . . if that
statute” either (1) “requires that the matters to be withheld from the public in such a manner as to
leave no discretion on the issue,” or (2) “establishes particular criteria for withholding or refers
to particular types of matters to be withheld.” See 5 U.S.C. § 552(b)(3). 41 Specifically, the
plaintiff challenges (1) the CIA’s Exemption 3 withholdings made under the authority of Section
6 of the CIA Act, 50 U.S.C. § 403g, in all three cases, (2) the DIA’s Exemption 3 withholdings
39
All of these documents were also withheld in full under FOIA Exemption 3. See Defs.’ First 445 Mem. at 16 n.3;
see also infra Part III.E.3 (discussing Exemption 3 withholdings of the CIA).
40
The plaintiff also originally challenged the withholding of material under Exemption 3 by the State Department,
see Pl.’s First 445 Opp’n at 23, but in the same brief the plaintiff “withdr[ew] its challenge . . . since it already has a
copy of the full document,” id. at 24. The Court will therefore not address the State Department’s Exemption 3
withholding decisions.
41
All of the withholding statutes invoked by the defendants in this case were enacted prior to 2009, and therefore the
second subparagraph of Exemption 3 does not apply here. See 5 U.S.C. § 552(b)(3)(B).
99
made under the authority of the National Security Act, 50 U.S.C. § 403-1(i)(1), in No. 11-445,
and (3) the ODNI’s Exemption 3 withholding of the domain portions of e-mail addresses, under
the authority of Section 6 of the CIA Act, in No. 11-445. The Court will discuss each category
of withholding decisions in turn.
1. CIA
The plaintiff challenges the CIA’s withholding of over 300 responsive records, in whole
or in part, under FOIA Exemption 3.42 All of the information withheld by the CIA under
Exemption 3 in all three cases was withheld under the authority of Section 6 of the CIA Act, 50
U.S.C. § 403g, which states in relevant part that “the [CIA] shall be exempted from the . . .
provisions of any other law [including the FOIA] which require the publication or disclosure of
the organization, functions, names, official titles, salaries, or numbers of personnel employed by
the [CIA].” See Def.’s First 443 Mem. at 9-10; Def.’s First 444 Mem. at 24-25; Defs.’ First 445
Mem. at 17. The threshold question presented by the plaintiff’s Exemption 3 challenges against
the CIA is the scope of 50 U.S.C. § 403g. The CIA interprets the statute broadly, contending in
its declarations that the statute protects (1) “information revealing the organization, functions and
42
The plaintiff states in its briefing that it challenges the CIA’s withholding of two records, in part, in No. 11-443,
see Pl.’s First 443 Opp’n at 14, and six documents, in part, in No. 11-444, see Pl.’s First 444 Opp’n at 30, 35. The
plaintiff does not specify, however, exactly which Exemption 3 withholdings it challenges in No. 11-445, where the
CIA withheld a total of 498 responsive records, in whole or in part, under this exemption. Rather, the plaintiff only
provides general categories of records in No. 11-445 that it challenges with respect to Exemption 3. For example,
the plaintiff states that he challenges the CIA’s withholding of “internal templates utilized by the agency in tasking
FOIA requests,” “internal rules, policies and procedures governing FOIA processing including classification,
referrals, coordinations, and fees,” and “organizational information revealing CIA’s internal systems of
decentralized information management.” See Pl.’s First 445 Opp’n at 11. The plaintiff also states that it “still
challenges the withholdings in documents where both Exemptions (b)(3) and (b)(5) are claimed.” Id. at 11 n.10.
These general categories have left the Court to deduce which specific records the plaintiff is challenging under
Exemption 3 in No. 11-445. The Court’s comparison of the plaintiff’s loose guidance with the CIA’s Vaughn index
yields the conclusion that the plaintiff is challenging at least 300 of the 498 records withheld by the CIA in No. 11-
445 under Exemption 3 and the CIA Act. The plaintiff’s failure to identify by Bates number the specific documents
at issue, however, has made it much more difficult for the Court to ascertain the exact documents at issue and their
description in the CIA’s Vaughn index. As a result, the Court is unable to provide a document-specific parsing of
which documents or portions thereof were properly or improperly withheld by the CIA under Exemption 3 and the
CIA Act. It will be the parties’ task to provide this document-specific summary of disputed documents within
twenty days of the Court’s decision. See infra Part IV.
100
other internal CIA information,” Third Lutz Decl. ¶ 35; see also First Lutz Decl. ¶ 72 (asserting
that “internal organizational data are absolutely protected by law”), and (2) “the ‘functions’ of
the CIA,” including “its core functions, which plainly include intelligence activities, intelligence
sources and methods, and the collection, analysis, and dissemination of foreign intelligence,”
Second Lutz Decl. ¶ 36. The plaintiff, on the other hand, contends that the CIA Act’s protections
are much narrower, extending only to information about the CIA’s personnel—e.g., their names,
their official titles, or how they are organized.
The CIA has invoked § 403g and Exemption 3 with respect to seven general categories of
information: (1) “internal templates utilized by the [CIA] in tasking FOIA requests,” Third Lutz
Decl. ¶ 34; (2) “internal rules, policies and procedures governing FOIA processing including
classification, referrals, coordinations, and fees,” id.; (3) “administrative routing data and file
paths,” id.; (4) “organizational information revealing CIA’s internal system of decentralized
information management,” id.; (5) “employee names and personal identifiers, including
employee signatures, numbers, and initials,” id.; (6) “[i]nternal information concerning ways in
which CIA is able to store and retrieve information,” First Lutz Decl. Ex. DD at 137, 142, No.
11-444, ECF No. 20-9; and (7) “information about the CIA’s core functions,” including
“intelligence activities, intelligence sources and methods, and the collection, analysis, and
dissemination of foreign intelligence,” Second Lutz Decl. ¶ 36. The plaintiff concedes that
categories (3) and (5) above fall within the scope of § 403g, see Pl.’s First 445 Opp’n at 11; Pl.’s
First 444 Opp’n at 30, but challenges the other five categories of information as being outside
§ 403g’s scope.
At the outset, one thing is clear: 50 U.S.C. § 403g is “precisely the type of statute[]
comprehended by exemption (b)(3).” Weissman v. CIA, 565 F.2d 692, 694 (D.C. Cir. 1977).
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The exact reach of § 403g, however, remains shrouded in some uncertainty. The clear purpose
of § 403g is “further to implement [50 U.S.C. § 403-1(i)] that the Director of National
Intelligence shall be responsible for protecting intelligence sources and methods from
unauthorized disclosure.” See 50 U.S.C. § 403g. Although the D.C. Circuit has held that “the
CIA is not required under section 403g to make an independent showing of a nexus between the
withholding of personnel data and the security of foreign intelligence activities or the protection
of intelligence sources and methods” in order to withhold information under Exemption 3, see
Baker v. CIA, 580 F.2d 664, 669 (D.C. Cir. 1978), the two provisions—§ 403-1(i) and § 403g—
are often invoked together. In the instant case, however, the CIA solely invokes § 403g as a
basis to withhold responsive information under Exemption 3.
In one of its first decisions to interpret the scope of § 403g in the context of Exemption 3,
the D.C. Circuit delineated an outer limit: § 403g does not “allow[] the [CIA] to refuse to
provide any information at all about anything it does.” Phillippi v. CIA, 546 F.2d 1009, 1015
n.14 (D.C. Cir. 1976). In other words, § 403g does not “accord the [CIA] a complete exemption
from the FOIA.” Id. One other consistent limit applied to § 403g by the D.C. Circuit is that the
provision applies only to “information about [the CIA’s] internal structure.” Id.; accord Larson,
565 F.3d at 865 n.2 (noting “the applicability of [§ 403g] to withhold internal CIA organizational
data”); Linder v. Dep’t of Defense, 133 F.3d 17, 25 (D.C. Cir. 1998) (stating that § 403g applies
to “information concerning the [CIA’s] personnel”); Baker v. CIA, 580 F.2d 664, 670 (D.C. Cir.
1978) (“[S]ection 403g creates a very narrow and explicit exception to the requirements of the
FOIA. Only the specific information on the CIA’s personnel and internal structure that is listed
in the statute will obtain protection from disclosure.”). The thrust of these cases is that § 403,
standing alone, only protects “information on the CIA’s personnel and internal structure,” see
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Baker, 580 F.2d at 670, such as the names of personnel, the titles and salaries of personnel, or
how personnel are organized within the CIA.
From the D.C. Circuit’s limited guidance, the Court concludes that the CIA’s proposed
construction of § 403g’s scope is too broad, in much the same way as the CIA’s proposed
construction of FOIA Exemption 2 above was too broad. The CIA would have § 403g exempt
from disclosure all “information about the [CIA’s] functions.” See Def.’s First 443 Mem. at 11;
accord Def.’s First 444 Reply at 16 (contending that CIA Act exempts disclosure of
“information that relates to the internal structure, organization, and functions of the CIA”);
Defs.’ Reply in Supp. Mot. Summ J. on Counts 1, 2, 3, 5, 6, 7, 8, 9, 10, and 13 (“Defs.’ First 445
Reply”) at 7, No. 11-445, ECF No. 35 (“[T]he CIA Act protects from disclosure information
about the Agency’s organization and functions.”). The CIA relies heavily on the malleable terms
“functions” and “organization” in § 403g to expand the provision’s scope, and it is true that those
are the two terms used in § 403g with potentially the broadest sweep. Nevertheless, the plain
text of the statute limits protection from disclosure only to the functions and organization
pertaining to or about personnel, see 50 U.S.C. § 403g (exempting from disclosure, inter alia,
“the organization [and] functions . . . of personnel employed by the [CIA]”), not to all
information that relates to such functions and organization.
It is this latter interpretive leap that renders the CIA’s proposed construction of § 403g
inappropriately broad. The D.C. Circuit has long held that § 403g is a “very narrow and explicit
exception,” see Baker, 580 F.2d at 670, yet the CIA’s proposed construction of § 403g would
come dangerously close to exempting from disclosure “any information at all about anything [the
CIA] does,” see Phillippi, 546 F.2d at 1015 n.14. It would be hard to imagine “anything [the
CIA] does,” see id., that does not somehow “relate[] to the internal structure, organization, [or]
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functions of the CIA,” see Def.’s First 444 Reply at 16. Indeed, the term “functions” in § 403g
would become particularly broad under the CIA’s proposed construction because the CIA’s
functions would encompass any kind of activity appropriately carried out by the CIA. See, e.g.,
Black’s Law Dictionary 742 (9th ed. 2009) (defining “function” as “[a]ctivity that is appropriate
to a particular business or profession”); Webster’s Third New Int’l Dictionary 920 (1981)
(defining “function” as “the action for which a person or thing is specially fitted, used, or
responsible or for which a thing exists”).
The CIA appears to recognize the breadth of its proposed interpretation in this regard,
contending in multiple places that “it is not clear that there is any practical difference between
the organization and functions of CIA personnel and those of the Agency” since “the CIA is
composed of and acts entirely through its employees.” See Def.’s First 443 Reply at 9; see also
Def.’s First 445 Reply at 7 (“The CIA is composed of and functions entirely through its
personnel.”). This perspective, however, “strip[s] the word ‘personnel’ of any real meaning.”
See Milner, 131 S. Ct. at 1269. If “personnel” really just means “the Agency,” then § 403g
would essentially apply to “any information at all about anything [the CIA] does,” see Phillippi,
546 F.2d at 1015 n.14, in contravention of the D.C. Circuit’s limitation on that provision’s scope.
Cf. Milner, 131 S. Ct. at 1269 (observing that “[u]nder this interpretation, an agency’s ‘internal
personnel rules and practices’ appears to mean all its internal rules and practices,” and thus “[t]he
modifier ‘personnel’ . . . does no modifying work”).
On this point, a distinction drawn by the Supreme Court in Milner is instructive.
Although Milner dealt with Exemption 2, not Exemption 3, the scope of 50 U.S.C. § 403g is
limited in a way similar to the way the Supreme Court limited Exemption 2 in Milner. As
discussed above, in Exemption 2, “[t]he use of the term ‘personnel’ . . . connotes not that the file
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or department or practice/rule is for personnel, but rather that the file or department or
practice/rule is about personnel—i.e., that it relates to employee relations or human resources.”
Milner, 131 S. Ct. at 1269 (emphasis in original). That distinction is apt with respect to § 403g
as well. Congress did not intend § 403g to exempt all information for personnel, but only
information about personnel, i.e., their “organization, functions, names, official titles, salaries or
numbers.” 50 U.S.C. § 403g. Therefore, just because a piece of information relates to or
concerns something CIA personnel do in carrying out their governmental responsibilities does
not mean it is exempt from disclosure under § 403g.
The breadth of the CIA’s proposed interpretation is also underscored by the D.C.
Circuit’s decision in Hayden v. NSA, 608 F.2d 1381 (D.C. Cir. 1979). In that case, the National
Security Agency (“NSA”) sought to withhold responsive records under FOIA Exemption 3 and
Section 6 of the National Security Agency Act, Pub. L. No. 86-36, § 6(a), 73 Stat. 63, 64 (1959),
50 U.S.C. § 402 note. See Hayden, 608 F.2d at 1389–90. That provision provides that “nothing
in this Act or any other law . . . shall be construed to require the disclosure of the organization or
any function of the National Security Agency, [or] any information with respect to the activities
thereof.” 73 Stat. at 64. The FOIA requester in Hayden argued that this provision of the NSA
Act “should be applied for Exemption 3 purposes in the same manner as similar statutes which
concern the [CIA].” Hayden, 608 F.2d at 1389–90. The Circuit rejected this analogy, stating
that, in contrast to the CIA Act, the NSA Act “protects not only organizational matters . . . but
also ‘any information with respect to the activities’ of the NSA.” Id. at 1390. The Circuit
further stated that “[a]ny difference in FOIA Exemption 3 treatment of the CIA and NSA results
necessarily from this difference in their respective exemption statutes.” Id.
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Hayden is apropos here because it highlights a material difference in language between
the NSA Act and the CIA Act, which in turn illuminates Congress’s intent to circumscribe the
scope of the CIA Act. Although in Hayden the Circuit relied primarily on the NSA Act’s
language exempting from disclosure “any information with respect to the [NSA’s] activities,”
see id. at 1390, another noticeable difference between the language of the two statutes is that the
CIA Act exempts from disclosure “the organization, functions, names, official titles, salaries, or
numbers of personnel employed by the Agency,” 50 U.S.C. § 403g, while the NSA Act more
broadly exempts from disclosure “the organization or any function of the [NSA],” 73 Stat. at 64.
The CIA contends that the CIA Act exempts from disclosure, inter alia, “the ‘functions’ of the
CIA,” Second Lutz Decl. ¶ 36, but the NSA Act demonstrates that when Congress intends for a
disclosure exemption statute to sweep that broadly, the statute will explicitly exempt the
functions of the agency, rather than simply the functions (or organization) of personnel
employed by the agency. 43
Although the CIA characterizes the plaintiff’s interpretation of § 403g as “hyper-
semantic” and “extreme” in its narrowness, see Defs.’ First 445 Reply at 6–7, the CIA’s
sweeping construction of § 403g is no less so in the opposite direction of breadth. The CIA cites
three cases—two from within this Circuit—that it says support its reading of the statute, and it
warns that “[t]his Court should reject NSC’s invitation to become the first to adopt NSC’s
extreme interpretation of the CIA Act.” Id. at 7. The Court will discuss each of these cases to
43
Although the CIA does not specifically propose it, the Court reads the CIA’s arguments to invite the following
reading of 50 U.S.C. § 403g: “the Agency shall be exempted from . . . the publication or disclosure of the
organization [of ], functions [of], names, official titles, salaries, or numbers of personnel employed by[,] the
Agency.” Crucially, the CIA’s proposed reading of the statute would require the addition of a comma before the
phrase “the Agency,” which would permit the words “organization [of]” and “functions [of]” to modify “the
Agency,” rather than to modify “personnel employed by the Agency.” Only by making these crucial alterations to
the language of the statute could the text support the broad reading that the CIA proposes. It is not the job of the
CIA or this Court, however, to amend statutory language.
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examine whether the CIA’s warning is worth heeding. 44 The first case—an unreported decision
from outside this Circuit—held that the CIA properly withheld certain information under § 403g
because it “concerned the CIA’s organization, functions, names and/or official titles, and
therefore meet the requirements of 50 U.S.C. § 403g.” See Roman v. NSA, Nos. 09-2947, 09-
4281, 09-3344, 09-2504, 09-5633, 2012 WL 569747, at *11 (E.D.N.Y. Feb. 22, 2012). The
extreme brevity of the court’s analysis of the CIA Act in Roman (one sentence) gives this Court
no foothold to agree or disagree with that court’s reasoning.
The reasoning in the second case, Schoenman v. FBI, 841 F. Supp. 2d 69 (D.D.C. 2012),
is similarly slim. The court in Schoenman interpreted § 403g to “require the protection of
‘intelligence sources and methods from unauthorized disclosure,’” see id. at 83, and although
those are all words in § 403g, they are not the operative language of the statute. Rather, those
words are included in § 403g solely to reference the National Security Act, 50 U.S.C. § 403-1(i).
To the extent that the Schoenman court construed § 403g, rather than 50 U.S.C. § 403-1(i),
broadly to protect the disclosure of “intelligence sources and methods,” this Court does not find
its reasoning persuasive. 45
44
The third case cited by the CIA, ACLU v. Department of Justice, 808 F. Supp. 2d 280, 288 (D.D.C. 2011), which
is from this Circuit, held that the CIA could withhold “whether the CIA cooperates with, is interested in, or actually
directs drone strikes” because such information “pertains to (possible) functions of CIA personnel.” The district
court’s holding in this regard was reversed by the D.C. Circuit on appeal, see ACLU v. CIA, 710 F.3d 422, 432 (D.C.
Cir. 2013) (holding that “the CIA’s broad Glomar response is untenable”), though the Circuit did not specifically
address the district court’s interpretation of the CIA Act. It is unclear whether the lower court’s reasoning regarding
the scope of the CIA Act survived reversal, however. Additionally, the ACLU case involved the application of the
Glomar doctrine, which deals with an agency’s refusal to confirm or deny the existence or non-existence of records
responsive to a FOIA request. See, e.g., id. at 426. Deciding the validity of a Glomar response presents a different
set of considerations than deciding whether an agency is entitled to withhold responsive records, and therefore the
reasoning of ACLU is inapposite to this case in any event.
45
The CIA only cites Schoenman for the proposition that § 403g protects “internal organizational data,” see Def.’s
First 445 Reply at 7, which the Court does not dispute. The nuance that neither the Schoenman court nor the CIA
identifies, however, is that “internal organizational data,” just like information about the CIA’s “internal structure”
are only protected from disclosure by § 403g insofar as such information is about the organization of personnel
employed by the CIA, not about the structure or organization of any aspect of the agency.
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Accordingly, the Court holds that certain specific categories of information withheld by
the CIA in this case pursuant to § 403g clearly fall outside that provision’s scope, including
(1) internal templates utilized by the CIA in tasking FOIA requests, (2) internal rules, policies
and procedures governing FOIA processing, and (7) information about the CIA’s “core
functions,” including intelligence activities, intelligence sources and methods, and the collection,
analysis, and dissemination of foreign intelligence. 46 This leaves two categories of information
from the above list that need to be addressed: (4) “organizational information revealing CIA’s
internal system of decentralized information management,” Third Lutz Decl. ¶ 34; and (6)
“[i]nternal information concerning ways in which CIA is able to store and retrieve information,”
First Lutz Decl. Ex. DD at 137, 142.
Shorn of the gratuitous addition of the words “internal” and “organizational,” it appears
that the information referred to in these categories is information about how the CIA manages,
stores, and retrieves information. The CIA, however, does not explain how disclosure of this
information would reveal “the organization, functions, names, official titles, salaries, or numbers
of personnel employed by the Agency.” 50 U.S.C. § 403g. It is undoubtedly true that managing,
storing, and retrieving information is a function of some, if not all, CIA personnel, but, as
discussed above, the CIA is attempting to augment the scope of § 403g by withholding
information that merely relates to or concerns that function. The language of the statute simply
does not support such a broad reading.
46
As to category (7) above, the Court does not hold that the CIA is necessarily required to disclose information
about intelligence gathering in response to FOIA requests. Rather, the Court narrowly holds that § 403g does not
generally protect all information pertaining to intelligence gathering. There are numerous other ways that the CIA
could protect such information from FOIA disclosure. Most notably, the CIA could invoke the National Security
Act, 50 U.S.C. § 403-1(i), if the information would reveal intelligence sources or methods, or FOIA Exemption 1, if
the information is properly classified.
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The CIA contends in its reply brief that “information about how the [CIA], or [CIA]
personnel, store and retrieve information is clearly information about the [CIA’s] internal
structure.” Def.’s First 444 Reply at 21. Although the D.C. Circuit has interpreted § 403g to
encompass “information about [the CIA’s] internal structure,” see Phillippi, 546 F.2d at 1015
n.14, later Circuit case law has clarified, in line with the statutory text, that “internal structure”
refers to the structure or organization of personnel employed by the Agency, not the structure or
organization of any aspect of the CIA, 47 see, e.g., Baker, 580 F.2d at 669 (“Congress intended to
create an exemption in section 403g for certain personnel information that could be withheld
from disclosure by the CIA without a separate intelligence or security justification.”); Linder,
133 F.3d at 25 (§ 403g applies to “information concerning the [CIA’s] personnel”). For
example, the organization of the CIA’s computer systems is not protected by § 403g, even
though the organization of personnel would be. Accordingly, the Court holds that the CIA may
not invoke § 403g to withhold information merely because that information may be used by CIA
personnel to carry out their responsibilities or functions. The “functions . . . of personnel
employed by the [CIA]” are protected from disclosure under § 403g, but how CIA personnel
carry out those functions is not. The CIA Act does not protect all information about CIA
functions generally; it more narrowly protects information that would reveal that a given
function is one “of personnel employed by the Agency.” 50 U.S.C. § 403g. The CIA may only
invoke 50 U.S.C. § 403g to withhold information under the FOIA if it would reveal the specific
categories of personnel-related information enumerated in the statute, i.e.,“the organization,
47
Similarly to information about intelligence-gathering measures, information about how the CIA stores and
retrieves information is likely in many cases to be highly sensitive and may accordingly warrant protection from
disclosure under other provisions, such as Executive Order 13,526, FOIA Exemption 1, or the National Security Act,
50 U.S.C. § 403-1(i). See supra note 46.
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functions, names, official titles, salaries, or numbers of personnel employed by the Agency.”
Id. 48
Although this resolves the primary, underlying legal question at the heart of the plaintiff’s
challenge to the CIA’s Exemption 3 withholding decisions, the plaintiff has also raised five other
issues regarding the CIA’s Exemption 3 withholding decisions. The Court will discuss each of
these issues in turn.
First, and related to the immediately preceding discussion, in No. 11-443 the plaintiff
levels the serious allegation that the CIA is invoking 50 U.S.C. § 403g not just incorrectly but
also in “bad faith.” See Pl.’s First 443 Opp’n at 5. 49 To support this accusation, the plaintiff
points to “five pieces of unclassified information” in two Studies in Intelligence indices (not
Tables of Contents) that the plaintiff asserts are “evidence of CIA’s bad faith invocation of
exemptions.” 50 The Court has reviewed these pieces of information in camera (they are redacted
from the version of the documents on the public docket), and the Court does not believe that
these redactions are evidence of bad faith. In fact, because the Court does not have the benefit of
48
As a result of this holding, the Court is providing the plaintiff with the relief that it has requested on the CIA
Act/Exemption 3 issue. The Court “find[s] that CIA has,” at least in part, “improperly invoked the CIA Act as an
Exemption (b)(3) withholding statute.” See Pl.’s First 443 Opp’n at 19. Hence, the CIA will have the opportunity
“to file a more sufficient declaration and Vaughn indices justifying the actual relationship between the withheld
information” and the language of the 50 U.S.C. § 403g, in line with the Court’s interpretation of that provision
herein. See id.
49
This accusation of bad faith appears to be related to, if not co-extensive with, the plaintiff’s argument in No. 11-
443, discussed above, regarding the supposed “general sloppiness” in the CIA’s FOIA review process. See supra
Part III.F.2; see also supra note 36. It is frankly unclear from its briefing whether the plaintiff is accusing the CIA
of bad faith with respect to the invocation of Exemption 1 and Exemption 3, or only Exemption 3. The plaintiff says
that it presents certain invocations of the CIA Act as “evidence of CIA’s bad faith invocation of exemptions,” see
Pl.’s First 443 Opp’n at 6, and the plaintiff makes a passing reference later in its brief to the “specific evidence of
bad faith as describe above,” id. at 13, but the plaintiff does not clarify whether it considers “general sloppiness” and
“bad faith” to be identical in this context. The Court, however, considers “general sloppiness” to be a separate
concept from “bad faith” because the former does not indicate the sort of specific intent connoted by the latter, and
therefore evidence of the former is not necessarily evidence of the latter.
50
These indices are not records that were responsive to the plaintiff’s FOIA request. Rather, these indices “c[a]me
into the [plaintiff’s counsel’s] possession from a third party and included information which CIA considered to be
either classified or protected by the CIA Act (or both).” Pl.’s First 443 Opp’n at 5. Thus, the plaintiff does not
actually challenge the decision to withhold these five pieces of information. Instead, the plaintiff appears to present
this evidence to the Court solely in an attempt to prove “bad faith” on the part of the CIA.
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an explanation from the CIA regarding its rationale for redacting this information under the CIA
Act, 51 the Court cannot say with certainty whether the CIA is even incorrect to rely on 50 U.S.C.
§ 403g to redact this information. Three of the five pieces of information are names, and the
Court has no basis to determine whether these are not “personnel . . . employed by the Agency.”
See 50 U.S.C. § 403g. The other two pieces of information may not be covered by § 403g, and
as discussed immediately above, the CIA has been reading that provision too broadly. There is
no basis to conclude, however, that the CIA’s overbroad reading of § 403g was in “bad faith,”
especially because prior interpretations of that provision’s scope are few and far between. Even
the plaintiff concedes that the scope of § 403g has been an unresolved question in this Circuit.
See Pl.’s First 443 Opp’n at 17 (“The very argument [about the scope of § 403g] has been made
by [plaintiff’s counsel] in several other cases before this and other courts in this Circuit, but the
question has yet to be decided in any of those cases.”). It is highly unlikely that the CIA was or
could be acting in “bad faith” regarding its interpretation of § 403g—a finding that would require
a showing that the CIA invoked this statute to withhold information while being aware of (and
choosing to ignore) a definitive interpretation of that statute’s scope.
Second, the plaintiff contends that “the record demonstrates a general sloppiness in CIA’s
review process in this case” because the CIA has withheld “names of individuals not ‘employed
by the [CIA]” under the CIA Act, 50 U.S.C. § 403g. See Pl.’s First 443 Opp’n at 10–11
(emphasis in original). Specifically, the plaintiff points to twelve instances of individual’s names
that were withheld under the CIA Act but who are not employees of the CIA, but rather are
military, diplomatic, and academic personnel or employees of other agencies in the intelligence
community. See id. at 10. The plaintiff asserts that these redactions indicate “general
51
The Court has no explanation from the CIA (a Vaughn index or otherwise) regarding these withholdings because
they were not produced in response to a FOIA request, and they are not the subject of this litigation.
111
sloppiness” because “CIA may not invoke [50 U.S.C. § 403g] to withhold names of individuals
not ‘employed by the Agency.’” Id. at 10–11. The CIA responds that the plaintiff “has not cited
to even one case in support of its claim that the CIA Act does not allow the Agency to protect the
names of individuals who perform services for the CIA—such as authoring and publishing
articles in the CIA’s internal journal—even if those individuals are employed by other entities.”
Def.’s First 443 Reply at 11.
This issue is not as clear-cut as the language of the statute might indicate or as the
plaintiff appears to believe. The D.C. Circuit has held that the CIA is permitted to withhold “the
names of attorneys retained for covert CIA activities and legal fees paid to them.” Halperin v.
CIA, 629 F.2d 144, 147–51 (D.C. Cir. 1980). In so holding, the Circuit interpreted the phrase
“personnel employed by the agency” to include “the services of persons affiliated with the
Agency only temporarily,” such as “the services of private attorneys needed from time to time in
connection with clandestine CIA activities.” Id. at 151. The Circuit held that “congressional
intent to protect ‘the confidential nature of the Agency’s functions’ leaves no room for a fine and
formalistic distinction between functions performed by CIA staff attorneys operating under cover
and functions performed by private attorneys pursuant to contract,” and thus § 403g
contemplated “temporarily affiliated personnel.” Id. Likewise, the Circuit held that the term
“salaries . . . [of] personnel employed by the Agency” includes more than “only payments to
regularly employed CIA staff personnel.” Id. Based on the D.C. Circuit’s holding in Halperin,
it may be that the CIA is entitled to withhold the names of individuals who author and publish
articles in the agency’s internal journal, since they appear to be “temporarily affiliated
personnel.” See id. The answer to that question remains unclear, and the Court need not decide
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it here. 52 It suffices to conclude that the names withheld by the CIA are at least arguably
protected from disclosure under the interpretation of § 403g announced in Halperin, and thus
withholding those names does not rise to the level of “general sloppiness” that would caution
against conferring substantial weight to the CIA’s declarations.
Third, although the plaintiff did not originally challenge the withholding of
“administrative routing information” with respect to Count Seventeen in No. 11-444, the plaintiff
contended in its opposition brief that, “given the sheer size of the redacted blocks, it seems
unlikely that they consist solely of administrative routing information.” Pl.’s First 444 Opp’n at
30 (emphasis in original). In this regard, the plaintiff suggested to the Court that the CIA had
withheld certain other information in bad faith under the auspices of withholding administrative
routing information. See id. at 31. The CIA called this contention “factually inaccurate” in its
reply brief, but the CIA also admitted in its reply brief that it has adopted a very broad
understanding of “administrative routing information.” See Def.’s First 444 Reply at 16.
According to the CIA, “administrative routing information” includes not only “notations
indicating which offices and analysts ultimately received and processed [FOIA] requests,” but
also “recommendations from FOIA analysts and attorneys about how requests should be
administratively processed and routed.” 53 See id. at 16–17. After learning of what it calls the
52
The Court need not decide this issue because, as discussed above, the plaintiff has agreed not to challenge the
CIA’s withholding of author names in No. 11-443. See supra note 37 (“The plaintiff agreed to limit the scope of its
challenge in Count Three of No. 11-443 to ‘the redaction of titles in the Studies of Intelligence [sic] tables of
contents.’ (quoting Second Lutz Decl. ¶ 20)).
53
The CIA had not indicated, prior to its reply brief in No. 11-444, that the term “administrative routing
information” included recommendations about how to process FOIA requests. Indeed, the CIA’s opening brief
strongly implied that it was only withholding such processing recommendations under Exemption 5 and the
deliberative process privilege. See Def.’s First 444 Mem. at 31. The CIA’s declaration simply stated that the
information withheld under the CIA Act “contain[ed] information regarding the organization, functions, names, and
official titles of personnel employed by the CIA, as well as internal organizational information such as file
numbers.” First Lutz Decl. ¶ 73. Likewise, the CIA’s Vaughn index described the “administrative routing
information” as “internal organizational data that could reveal directorate offices, substructures and/or the
organizational structure of the CIA.” See, .e.g., First Lutz Decl. Ex. DD at 2–3, 7, 11, 15. If the “administrative
113
“remarkable breadth of [the CIA’s] definition of such a mundane term,” the plaintiff contended
in its sur-reply brief that these recommendations and comments from FOIA analysts are beyond
the scope of § 403g. See Pl.’s Sur-Reply to Def.’s Mot. Summ. J. on Counts 1, 9, 10, 17, 18 and
20 (“Pl.’s 444 Surreply”) at 2, No. 11-444, ECF No. 29.
The Court agrees. As the above discussion makes plain, “administrative routing
information” regarding FOIA requests only falls within § 403g if such information would reveal
something about the CIA’s personnel or internal structure, e.g., the names or titles of employees
handling or receiving FOIA requests and the organizational structure of personnel within CIA
offices or components. Recommendations from FOIA analysts about how to process FOIA
requests, however, are not solely administrative, personnel-related, or structural. Such
recommendations are quite obviously substantive to the extent that they contain suggestions
about what information to withhold and what information to disclose to the public. Certain
details within these recommendations may indeed be administrative or personnel-related in
nature and thus exempt from disclosure under § 403g, but if the CIA wants to withhold such
information, it must specifically describe the information in question and explain why it would
reveal “the organization, functions, names, official titles, salaries, or numbers of personnel
employed by the Agency.” See 50 U.S.C. § 403g. This the CIA has not done, leaving the Court
to speculate, without any basis in the record. The CIA cannot simply lump all FOIA processing
materials into the vague and expansive category of “administrative routing information.”
Fourth, in discussing the CIA’s Exemption 3 redactions with respect to Count Eighteen in
No. 11-444, the plaintiff contends that the CIA also wrongfully redacted some responsive
information as “non responsive.” See Pl.’s First 444 Opp’n at 39. Essentially, the plaintiff
routing information” had indeed been limited to such items, the CIA’s Exemption 3 withholdings all would have
been appropriate.
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complains that the CIA interpreted its request too narrowly. The Court has previously discussed
the principles that apply in determining whether an agency properly interpreted the scope of a
FOIA request. See supra Part III.E.4. The bottom line of those principles is that an agency “has
a duty to construe a FOIA request liberally,” Nation Magazine, 71 F.3d at 890, and is “bound to
read it as drafted” not as “agency officials . . . might wish it was drafted,” Miller, 730 F.2d at
777. The FOIA request at issue in Count Eighteen in No. 11-444 sought “a copy of all [CIA]
records pertaining to the search tools and indices available to the Office of Information
Management Services (‘IMS’) for conducting searches of its own records in response to FOIA
requests.” First Lutz Decl. Ex. Q at 1. To clarify the scope of the request, the plaintiff specified
two categories of records that would be responsive to the request: (1) “Records which describe
the search tools and indices,” and (2) “The actual contents of the indices.” Id. The CIA withheld
the following information as non-responsive from two documents (C05665569 and C05665570):
(a) “information relating to case management workflow, directorate level workflow, training
available to CADRE users, and troubleshooting help with technical issues while using CADRE,”
and (b) “information relating to training and access to SMART2, creating a new job in
SMART2, application of Records Control Schedules, and archiving capabilities.” See First Lutz
Decl. Ex. DD at 137, 141.
Keeping in mind the CIA’s obligation to construe the plaintiff’s FOIA request liberally,
see Nation Magazine, 71 F.3d at 890, it appears that at least some of the information withheld as
non-responsive is, in fact, responsive. Clearly, any record containing information about the
capabilities of the search tools and indices in question would “describe” those search tools and
indices, and thus would be responsive to the plaintiff’s request. Similarly, any record containing
information about how to use the search tools and indices in question (e.g., training materials for
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users) would also “describe” those search tools and indices. 54 The plaintiff’s request for
“[r]ecords which describe the search tools and indices,” see First Lutz Decl. Ex. Q at 1, fairly
contemplated any records containing information about the functionality and operation of these
search tools and indices, and therefore the CIA must release such records to the plaintiff to the
extent that they are not exempt from disclosure. 55
Finally, the plaintiff challenges the CIA’s decision to withhold the name of a CIA
employee in one responsive document under the CIA Act and Exemption 3. 56 See Def.’s First
444 Mem. at 32–33; Pl.’s First 444 Opp’n at 30. The plaintiff contends, “given that the name is
at most six characters in length,” and “[g]iven the high likelihood that this is simply a first
name,” the CIA Act does not apply because that statute was “designed to protect the identities of
people.” See Pl.’s First 444 Opp’n at 30. The CIA responds that the plain language of the CIA
Act exempts from disclosure “names . . . of personnel employed by the Agency,” see 50 U.S.C.
§ 403g, and adopting the plaintiff’s proposed rule regarding first names “would place an
unreasonable burden on the CIA to determine whether a first name should be redacted based on
how common the name is and whether the document at issue provides other potentially
identifying information about the employee.” Def.’s First 444 Reply at 15.
54
The Court is unsure whether information about “workflow” or “application of Records Control Schedules” would
be responsive to the plaintiff’s request without a better understanding of what those terms mean.
55
The plaintiff also asks the Court to “order [the CIA] to distinguish between the Exemption (b)(3) redactions and
the ‘non-responsive’ redactions.” Pl.’s First 444 Opp’n at 35. This issue, however, has not been briefed by the
parties specifically with respect to the FOIA request at issue in Count Eighteen of No. 11-444. This is likely
because the CIA has previously instituted a categorical policy of indicating the basis for redactions at a document
level, rather than a redaction level, as discussed above. See supra Part III.C.2. In light of the Court’s holding that
“[t]he CIA must make a case-by-case determination regarding the technical feasibility of indicating a claimed
exemption associated with a deletion ‘at the place in the record where such deletion is made,’” id. (quoting 5 U.S.C.
§ 552(b)), the CIA will be required to make such a case-by-case determination with respect to the request at issue in
Count Eighteen.
56
The CIA did not invoke Exemption 6 in its Vaughn index or its declaration to withhold the employee’s name,
though the plaintiff discusses in its opposition brief Exemption 6 as a potential basis for withholding the name. See
Pl.’s First 444 Opp’n at 30.
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The Court agrees with the CIA on this issue. First, although the plaintiff asserts that “it
would be virtually impossible to use [a first name] to identify someone,” see Pl.’s First 444
Opp’n at 30, the CIA is correct that the ability to identify a person by a first name alone depends
on how common the first name is and whether the record provides other information that, in
combination with a first name, would permit someone to identify the employee. Second, the
plaintiff contends that the CIA Act was “not designed to be used to withhold such things as first
names, nicknames, pseudonyms, or initials,” Pl.’s First 444 Opp’n at 30, 57 but the D.C. Circuit
has held otherwise. See Military Audit Project v. Casey, 656 F.2d 724, 749 (D.C. Cir. 1981)
(“[D]ocuments that might disclose the names, initials, pseudonyms and official titles of CIA
personnel . . . are properly withheld by the government.” (footnote omitted)). Since the
disclosure of a CIA employee’s first name may disclose the employee’s identity, the CIA is
permitted to withhold such information under the CIA Act, 50 U.S.C. § 403g.
***
In sum, the Court holds that the CIA’s proposed construction of 50 U.S.C. § 403g is
overly broad. As a result, the CIA has inappropriately withheld information under FOIA
Exemption 3. Specifically, the following categories of information referred to by the CIA in its
declarations and briefs are presumptively not exempt from disclosure under § 403g, although, as
noted below, may be subject to other exemptions: (1) “internal templates utilized by the [CIA] in
tasking FOIA requests,” Third Lutz Decl. ¶ 34; (2) “internal rules, policies and procedures
governing FOIA processing including classification, referrals, coordinations, and fees,” id.; (3)
57
The plaintiff also makes a similar contention in No. 11-443, asserting that “[p]seudonyms simply do not count” as
“names . . . of personnel employed by the Agency,” “especially when they are clearly identified as such.” See Pl.’s
First 443 Opp’n at 10. This argument is incorrect under Military Audit Project for the same reasons the plaintiff’s
related argument in No. 11-444 is incorrect. See Military Audit Project v. Casey, 656 F.2d 724, 749 (D.C. Cir.
1981) (“[D]ocuments that might disclose the names, initials, pseudonyms and official titles of CIA personnel . . . are
properly withheld by the government.” (emphasis added) (footnote omitted)).
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“organizational information revealing CIA’s internal system of decentralized information
management,” id.; (4)“[i]nternal information concerning ways in which CIA is able to store and
retrieve information,” First Lutz Decl. Ex. DD at 137, 142; (5) “information about the CIA’s
core functions,” including “intelligence activities, intelligence sources and methods, and the
collection, analysis, and dissemination of foreign intelligence,” Second Lutz Decl. ¶ 36; and
(6) “recommendations from FOIA analysts and attorneys about how requests should be
administratively processed and routed,” Def.’s First 444 Reply at 16–17. Accordingly, the Court
denies summary judgment to the CIA, in part, with respect to Count Three in No. 11-443; Counts
Seventeen and Eighteen in No. 11-444; and Counts One, Two, Three, Seven, and Thirteen in No.
11-445. The Court denies summary judgment to the CIA on these counts only with respect to the
CIA’s decision to withhold information in the above six categories under § 403g and Exemption
3 and the CIA’s decision to withhold responsive information as “non responsive” information, as
discussed above. Finally, the Court grants summary judgment to the CIA in part on Count
Seventeen in No. 11-444, with respect to the agency’s decision to withhold the first name of a
CIA employee from one document under the CIA Act.
Some of the information in the above six categories, however, may in fact be properly
exempt from disclosure under § 403g—a possibility that the plaintiff itself recognizes. See, e.g.,
Pl.’s First 445 Opp’n at 17 n.13. The Court will therefore provide the CIA another opportunity
to justify, consistent with this opinion, the agency’s decision to withhold the information in the
above six categories under § 403g and FOIA Exemption 3. In this regard, conclusory or
generalized descriptions will not suffice. The CIA must specifically describe the withheld
information and explain why it would reveal “the organization, functions, names, official titles,
salaries, or numbers of personnel employed by the Agency.” See 50 U.S.C. § 403g. The CIA is
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also directed to release to the plaintiff any information in documents C05665569 and C05665570
which describes how the search tools and indices available to IMS operate to the extent such
information is not exempt from disclosure.
2. DIA
Next, the plaintiff challenges the DIA’s decision to withhold responsive information
under Exemption 3 by invoking the National Security Act, 50 U.S.C. § 403-1(i). See Pl.’s First
445 Opp’n at 17–22. The plaintiff argues that the DIA “lacks the authority to invoke the
National Security Act on its own to withhold information not protected by 10 U.S.C. § 424.” Id.
at 17. The premise of this contention is that, although the National Security Act originally
“vested the Director of Central Intelligence (‘DCI’) with the authority to protect ‘intelligence
sources and methods,” the act was amended in 2004. See id. This amendment, according to the
plaintiff, “divest[ed] this authority from the DCI,” and transferred the authority to the ODNI.
See id. at 17–18. Thus, the plaintiff argues that “after 2004 the ODNI is the only agency
authorized by statute to claim the National Security Act as a withholding statute, and any other
agency seeking to invoke that statute to withhold records under Exemption (b)(3) must be
expressly authorized to do so by that office.” Id. at 18.
This challenge by the plaintiff is now moot, however, because the DIA “has decided to
withdraw its assertions of Section 403-1(i)” since “the National Security Act was asserted in
each instance as an alternative ground for withholding.” See Defs.’ First 445 Reply at 14. 58
58
In its supplemental declaration, the DIA is non-specific about the alternative grounds for withholding the
information that was originally also withheld pursuant to the National Security Act. All that the DIA says in its
supplemental declaration is that “each assertion of Section 403-1(i) was made in conjunction with another FOIA
exemption” and thus “this Exemption 3 statute is not a critical element of DIA’s defense.” See Second Williams
Decl. ¶ 3. It appears from a review of the DIA’s supplemental Vaughn index that any information previously
withheld under the National Security Act is now being withheld by the DIA pursuant to Exemption 1; 10 U.S.C.
§ 424 and Exemption 3; Exemption 5; and/or Exemption 6. See Second Williams Decl. Ex. A.
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Therefore, the Court need not decide whether the DIA has the independent authority to invoke
the National Security Act as an Exemption 3 withholding statute.
3. ODNI
Finally, the plaintiff challenges the ODNI’s decision to withhold certain portions of e-
mail addresses of CIA and ODNI employees under the CIA Act. See Pl.’s First 445 Opp’n at
22–23. Although the plaintiff “does not challenge ODNI’s invocation of the CIA Act to
withhold names and full email addresses of CIA and ODNI employees,” the plaintiff “ask[s] that
the domains (i.e., that part after the ‘@’ sign) of the email addresses be released.” Id. at 22(emphasis in original). The plaintiff contends that “[r]elease of enough data to determine the
agency affiliations of the respective participants in these email chains—the only information
deducible from such a release—will not violate the CIA Act.” Id. at 22–23. The plaintiff
likewise contends that “Exemption (b)(6) does not apply to the challenged ODNI withholdings.”
Id. at 23. In the interest of efficiency, the Court will discuss the plaintiff’s arguments under both
Exemption 3 and Exemption 6 in assessing the ODNI’s withholding of domain name information
from e-mail addresses. 59
The ODNI makes two responses to the plaintiff’s Exemption 3 and Exemption 6
arguments. First, the ODNI argues that “NSC cannot cite to a single case in which a court has
held that the CIA Act does not protect CIA and ODNI employees’ full email addresses.” Defs.’
First 445 Reply at 17. Second, the ODNI argues that “NSC also fails to show why the full email
addresses are not protected by Exemption (b)(6).” Id. At the outset, both of these arguments
misperceive the allocation of the burden on the parties in the summary judgment context. As
discussed above, when an agency’s response to a FOIA request is to withhold responsive
59
As discussed below, FOIA Exemption 6 applies to “personnel and medical files and similar files the disclosure of
which would constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6).
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records, either in whole or in part, the agency “bears the burden of proving the applicability of
claimed exemptions.” ACLU/DOD, 628 F.3d at 619. It is not the requester’s burden to disprove
the applicability of claimed exemptions, as the ODNI frames its opposition.
That said, the only case that the Court can find to address this question held that “[t]he
CIA Act . . . plainly protects . . . employee names, titles, signatures and identification numbers;
telephone numbers, fax numbers, e-mail addresses and street addresses; internal URLs; and other
internal organizational information.” James Madison Project v. CIA, 607 F. Supp. 2d 109, 126
(D.D.C. 2009) (emphasis added). The James Madison Project case, however, did not
specifically address the applicability of the CIA Act to e-mail domain information, as opposed to
full e-mail addresses. Such domain information, as the plaintiff points out, is likely “shared by a
large group of federal employees.” Pl.’s Sur-Reply to Defs.’ Mot. Summ. J. on Counts 1, 2, 3, 5,
6, 7, 8, 9, 10, and 13 (“Pl.’s 445 Surreply”) at 3, No. 11-445, ECF No. 38. As a result, the
domains likely do not constitute “personal identifiers,” which was the ODNI’s stated reason for
withholding the full e-mail addresses. See Hackett Decl. ¶ 20. Likewise, domain information
would not reveal the “names . . . of personnel employed by the [CIA].” 50 U.S.C. § 403g.
It is plausible, however, that even domain information could reveal information about the
CIA’s “internal structure.” See Phillippi, 546 F.2d at 1015 n.14. For example, e-mail domain
information could reveal how personnel are organized within the CIA, and in that event such
information would fall within the protection of 50 U.S.C. § 403g. The ODNI, however, does not
advance this argument in attempting to justify its withholding of e-mail addresses. Additionally,
the ODNI makes no attempt to argue or establish that e-mail domain information, as distinct
from the rest of the information in employees’ e-mail addresses “would constitute a clearly
unwarranted invasion of personal privacy.” See 5 U.S.C. § 552(b)(6). Therefore, the Court will
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deny summary judgment to the ODNI on Count Six in No 11-445 with respect to the withholding
of e-mail domain information under Exemption 3 and/or Exemption 6 and will permit the agency
to submit a supplementary declaration explaining why e-mail domain information is exempt
from disclosure under either or both exemptions.
J. Exemption 5
The plaintiff next challenges the withholding of information by the CIA, DOJ, DIA, and
ODNI under FOIA Exemption 5. See Pl.’s First 445 Opp’n at 24–34; Pl.’s First 444 Opp’n at
31–35. FOIA Exemption 5 protects from disclosure “inter-agency or intra-agency
memorandums or letters which would not be available by law to a party other than an agency in
litigation with the agency.” 5 U.S.C. § 552(b)(5). To be properly withheld under Exemption 5,
“a document must . . . satisfy two conditions: its source must be a Government agency, and it
must fall within the ambit of a privilege against discovery under judicial standards that would
govern litigation against the agency that holds it.” Dep’t of Interior v. Klamath Water Users
Protective Ass’n, 532 U.S. 1, 8 (2001). The four defendant agencies listed above cited
Exemption 5 to withhold information under the deliberative process privilege, and the attorney-
client privilege, both of which are incorporated into Exemption 5. See, e.g., Loving v. Dep’t of
Def., 550 F.3d 32, 37 (D.C. Cir. 2008). The DIA has also apparently invoked the attorney work-
product doctrine in its sworn declaration, though the DIA did not advance this argument in its
summary judgment motion. Compare Williams Decl. ¶ 24 (“DIA asserted Exemption 5 to
withhold this information pursuant to the attorney client privilege and/or the attorney-work
product privilege . . . .”), with Defs.’ First 445 Mem. at 25 (“DIA has withheld information on
the basis of the deliberative process and attorney-client privileges.”). The Court will first discuss
the plaintiff’s challenges regarding material withheld under the deliberative-process privilege
before turning to the attorney-client privilege and the attorney work-product doctrine.
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1. Deliberative-Process Privilege
“The deliberative process privilege protects ‘documents reflecting advisory opinions,
recommendations and deliberations comprising part of a process by which governmental
decisions and policies are formulated.’” Loving, 550 F.3d at 38 (quoting Klamath Water, 532
U.S. at 8). “To qualify for Exemption 5 protection under the deliberative process privilege, ‘an
agency’s materials must be both predecisional and a part of the deliberative process.’” Nat’l
Inst. of Military Justice v. U.S. Dep’t of Def., 512 F.3d 677, 680 n.4 (D.C. Cir. 2008) (quoting
Formaldehyde Inst. v. Dep’t of Health & Human Servs., 889 F.2d 1118, 1121 (D.C. Cir. 1989)).
The Supreme Court has acknowledged that “[t]he deliberative process privilege rests on the
obvious realization that officials will not communicate candidly among themselves if each
remark is a potential item of discovery and front page news,” and the privilege’s “object is to
enhance ‘the quality of agency decisions,’ by protecting open and frank discussion among those
who make them within the Government.” Klamath Water, 532 U.S. at 8–9 (citations omitted);
see also Tax Analysts v. IRS, 117 F.3d 607, 617 (D.C. Cir. 1997) (“[T]he deliberative process
privilege . . . reflect[s] the legislative judgment that ‘the quality of administrative decision-
making would be seriously undermined if agencies were forced to operate in a fishbowl because
the full and frank exchange of ideas on legal or policy matters would be impossible.’” (quoting
Mead Data Cent., Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242, 256 (D.C. Cir. 1977) (internal
quotation marks omitted)).
“The need to describe each withheld document when Exemption 5 is at issue is
particularly acute because ‘the deliberative process privilege is so dependent upon the individual
document and the role it plays in the administrative process.’” Animal Legal Def. Fund, Inc. v.
Dep’t of Air Force, 44 F. Supp. 2d 295, 299 (D.D.C. 1999) (quoting Coastal States Gas Corp. v.
Dep’t of Energy, 617 F.2d 854, 867 (D.C. Cir. 1980)). In other words, unlike other exemptions
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where the agency declaration and Vaughn index may be read in conjunction to provide an
adequate justification for application of an exemption to a class or category of records, to sustain
its burden of showing that records were properly withheld under Exemption 5, an agency must
provide in its declaration and Vaughn index precisely tailored explanations for each withheld
record at issue. “The agency must establish ‘what deliberative process is involved, and the role
played by the documents in issue in the course of that process.’” Senate of P.R. v. U.S. Dep’t of
Justice, 823 F.2d 574, 585–86 (D.C. Cir. 1987) (quoting Coastal States, 617 F.2d at 868). “In
addition to explaining the ‘function and significance of the document[s] in the agency’s
decisionmaking process,’” the agency “must describe ‘the nature of the decisionmaking authority
vested in the office or person issuing the disputed document[s], and the positions in the chain of
command of the parties to the documents.’” Elec. Frontier Found. v. U.S. Dep’t of Justice
(“EFF”), 826 F. Supp. 2d 157, 168 (D.D.C. 2011) (quoting Arthur Andersen & Co. v. IRS, 679
F.2d 254, 258 (D.C. Cir. 1982)).
a) CIA
The plaintiff challenges the CIA’s withholding of 310 responsive records, 60 in whole or
in part, under Exemption 5, the majority of which were withheld under the deliberative-process
privilege. See Pl.’s First 445 Opp’n at 25–34; Pl.’s First 444 Opp’n at 31–35; see also First Lutz
Decl. Ex. DD; Third Lutz Decl. Ex. K. In challenging these withholding decisions by the CIA,
the plaintiff makes five related arguments. First, the plaintiff argues that the CIA’s
“declaration[] and Vaughn ind[ex] [is] virtually devoid of any non-conclusory information.” See
Pl.’s First 445 Opp’n at 25; see also Pl.’s First 444 Opp’n at 32. Second, the plaintiff contends
that, in order for the deliberative-process privilege to apply, “release of the information must
60
These are documents that were withheld either only under Exemption 5 or were withheld under Exemption 5 and
Exemptions 3 and/or 6.
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inaccurately reflect or prematurely disclose the views of the agency.” Pl.’s First 445 Opp’n at
28; Pl.’s First 444 Opp’n at 33. Yet, the plaintiff contends, “[t]he views of the agency regarding
these [FOIA] requests are clear from the text of the response letters, so it is unreasonable to think
that someone reading these notes would mistake which conclusions were adopted as the official
agency position.” Pl.’s First 444 Opp’n at 33. Third, the plaintiff implies that some of the
withheld material may have been “‘adopted formally or informally, as the agency position on an
issue, or used by the agency in its dealings with the public.’” Id. (quoting Judicial Watch v. U.S.
Postal Serv., 297 F. Supp. 2d 252, 261 (D.D.C. 2004)); see also Pl.’s First 445 Opp’n at 28–29.
Fourth, the plaintiff argues that the deliberative-process privilege does not apply because
“whether or not the author will be exposed is a significant factor” in applying the privilege, and
the names of the agency employees involved in the communications could be redacted. See Pl.’s
First 444 Opp’n at 34; Pl.’s First 445 Opp’n at 29. Finally, the plaintiff contends that three of the
documents withheld by the CIA under the deliberative-process privilege (C05520230,
C05520207, and C05520221) are “neither predecisional nor deliberative” because, as described
in the Vaughn index, they “are policy documents which merely inform the target audience (FOIA
analysts and managers) of CIA’s procedures and policies.” Pl.’s First 445 Opp’n at 29–30.
The plaintiff’s first argument alone succeeds in defeating summary judgment for the CIA
with respect to the deliberative-process privilege. Unlike some other FOIA Exemptions (e.g.,
Exemption 1), when an agency claims the deliberative-process privilege under Exemption 5, the
factual context surrounding the withheld document is critical. As stated above, “[t]he need to
describe each withheld document when Exemption 5 is at issue is particularly acute because ‘the
deliberative process privilege is so dependent upon the individual document and the role it plays
in the administrative process.’” Animal Legal Def. Fund, 44 F. Supp. 2d at 299 (emphasis
125
added) (quoting Coastal States, 617 F.2d at 867). At a minimum, the agency must provide three
basic pieces of information in order for the deliberative-process privilege to apply: (1) the nature
of the specific deliberative process involved, (2) the function and significance of the document in
that process, and (3) the nature of the decisionmaking authority vested in the document’s author
and recipient. See, e.g., Senate of P.R., 823 F.2d at 585–86; Arthur Andersen, 679 F.2d at 257–
58; Coastal States, 617 F.2d at 867–68. The Court will discuss each of these pieces of
information in turn with respect to the CIA.
As to the first piece of information, in No. 11-445, the CIA states generally in its
declaration that “[t]he deliberative information contained in these documents was solicited,
received, or generated as part of the process by which the [CIA] comes to a final determination
in response to FOIA requests.” Third Lutz Decl. ¶ 39. The individual entries in the CIA’s
Vaughn index, however, do not elaborate on the “specific deliberative process to which the
withheld [document] contributed.” See EFF, 826 F. Supp. 2d at 168 (emphasis added).
Providing only a general description like “the process by which the [CIA] comes to a final
determination in response to FOIA requests,” Third Lutz Decl. ¶ 39, is particularly problematic
in the FOIA processing context because, in responding to a FOIA request, an agency often must
make several different types of decisions, e.g., withholding decisions, fee-waiver decisions,
expedited processing decisions, and others.
As to the second piece of information regarding the role played by the document in the
deliberative process, in No. 11-445 the CIA lists four kinds of information that it withheld as
deliberative and predecisional, which include: (1) “recommendations on withholdings and
exemptions to be applied to particular requests,” (2) “preliminary search results generated in
response to a FOIA or Privacy Act tasking,” (3) “the status of requests in processing,” and
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(4) “inter-agency memoranda containing the CIA’s proposals and recommendations.” Third
Lutz Decl. ¶ 39. The CIA provides similarly generic descriptions in No. 11-444, stating only
that information “includes FOIA analysts’ recommendation [sic] about how to process this
request” and “suggests a course of action relating to this FOIA request.” See First Lutz Decl. Ex.
DD at 17, 130. These descriptions are too vague for the Court to discern “the ‘function and
significance of the documents in the agency’s decisionmaking process.’” Arthur Andersen, 679
F.2d at 258 (quoting Taxation with Representation Fund v. IRS, 646 F.2d 666, 678 (D.C. Cir.
1981)). Indeed, the CIA does not describe in any amount of detail how “the process by which
the [CIA] comes to a final determination in response to FOIA requests” works and how these
withheld pieces of information fit into that process. See Third Lutz Decl. ¶ 39. Taking
“preliminary search results” as just one example: Are “preliminary search results” generated by a
lower-level analyst and then transmitted to a higher-level analyst for approval to perform further
searching? How does the agency use such “preliminary search results” in making decisions
about responding to FOIA requests? Do “preliminary search results” contribute to decisions
about the appropriate scope of a search, the burdens triggered by the search, or whether
information is responsive or subject to withholding?
Finally, the overwhelming majority of the CIA’s Vaughn entries provide no information
whatsoever regarding “the nature of the decisionmaking authority vested in the office or person
issuing the disputed documents” or “the positions in the chain of command of the parties to the
documents” withheld under the deliberative process privilege. See Arthur Andersen, 679 F.2d at
258 (internal quotation marks omitted); see also, e.g., Third Lutz Decl. Ex. K pt. 1, at 3, 12, 19,
106, 114; Third Lutz Decl. Ex. K pt. 3, at 1–19, 25–26, 30–31, 65–66. The CIA does provide
this information about the two documents withheld in part under the deliberative-process
127
privilege in No. 11-444, see First Lutz Decl. Ex. DD at 17, 141, but the descriptions of the
decisionmaking authority are generic, stating that the withheld information is a “recommendation
from the [FOIA] analyst to his/her supervisor,” id. at 17, and a “recommendation from the
analysts to senior reviewers,” id. at 141. The CIA, however, does not describe the
decisionmaking authority of the “supervisor” or “senior reviewers,” such as whether these
personnel had the authority to approve withholding decisions, scope-of-search decisions, or other
decisions “about how to process this [FOIA] request,” see id. at 17, 141. Without this
information made explicit, the Court is unable to conclude that these communications were both
deliberative and pre-decisional.
In its Vaughn index in No. 11-445, in the instances where the CIA provides some
description of the identities of the parties to a document withheld under the deliberative process
privilege, the descriptions do not disclose the decisionmaking authority vested in those
individuals. See, e.g., Third Lutz Decl. Ex. K pt. 1, at 14 (withholding “1 page memorandum
from Information Review Officer to IRO group regarding preliminary determinations in the
processing of F-2010-00467”); id. at 63 (withholding “a 1 page e-mail between Information
Review Officers regarding the processing of a FOIA request”); id. at 92 (withholding “1-page e-
mail between CIA officers regarding the processing of a FOIA request”). Although the CIA’s
descriptions suggest that these communications may be among peers about a FOIA request, the
CIA does not say what decisionmaking authority is vested in Information Review Officers or the
“IRO group,” such that the Court can discern whether these communications “reflect the give
and take of the deliberative process.” See Pub. Citizen v. OMB, 598 F.3d 865, 876 (D.C. Cir.
128
2010). 61 The CIA also does not specify the “the positions in the chain of command of” the
generic “CIA officers” referred to in other withheld documents. See Arthur Andersen, 679 F.2d
at 258 (internal quotation marks omitted). Accordingly, the Court denies summary judgment to
the CIA with respect to the information that the agency withheld under the deliberative process
privilege. If the CIA chooses to continue to withhold this information, the agency must submit a
supplemental Vaughn index that adequately justifies that withholding.
b) DIA, ODNI, and DOJ
The submissions of the DIA, ODNI, and DOJ suffer from similar deficiencies. For
starters, neither the ODNI nor the DOJ submitted a Vaughn index that describes the factual
context of each withheld document. The ODNI states in its declaration that “[i]nformation was
withheld pursuant to FOIA Exemption 5 on 13 of the 34 pages released to the plaintiff,” Hackett
Decl. ¶ 24, and the ODNI attaches redacted versions of these thirty-four pages to its declaration,
see Hackett Decl. Exs. C–D, No. 11-445, ECF No. 29-8. The ODNI’s declaration, however,
does not identify which of the thirty-four pages contains information withheld under Exemption
5, and only nine of the thirty-four redacted pages explicitly indicate (b)(5) as a basis for
withholding information. The ODNI thus apparently leaves it to the Court to infer which
portions of which of the thirty-four heavily redacted (and sometimes illegibly blurry) pages were
withheld under Exemption 5. This sort of submission is utterly unhelpful to the Court in
determining whether a FOIA exemption applies to particular portions of particular records,
especially in the absence of a document-by-document Vaughn index that could explain the
61
This deficiency is exacerbated by the other deficiencies previously discussed, such as the lack of any information
about the particular decision at issue and the function and significance of these communications in that particular
decisionmaking process.
129
factual context of each withheld record. 62 When a document-specific explanation is required, as
it is when claiming the deliberative process privilege, see Coastal States, 617 F.2d at 867, the
government needs to specify exactly which records (and portions of records) are exempt, as well
as provide a document-specific explanation for why the material is exempt.
Additionally, similar to the CIA, the ODNI provides only generic summaries of the
documents withheld, stating that they “contain[] information that reflects the pre-decisional
deliberations of ODNI employees on the proper handling of certain FOIA requests.” See Hackett
Decl. ¶ 27. In this regard, both the CIA and the ODNI consistently tack on conclusory labels like
“internal,” “deliberative,” “candid,” and “pre-decisional,” see id.; Third Lutz Decl. ¶ 39; Third
Lutz Decl. Ex. KK passim, but such “buzz-word adjectives” are no substitute for “a meaningful
description of the factual context surrounding a document.” See Muttitt v. Dep’t of State, No. 10-
202, 2013 WL 781709, at *18 (D.D.C. Mar. 4, 2013). The same holds true for the DIA, which
provides a generic description of withheld material in its declaration, see Second Williams Decl.
¶ 11 (stating that documents “involve detailed deliberations between elements of DIA and
outside agencies about the appropriate FOIA responses”), and boilerplate labels in its Vaughn
entries, see, e.g., Second Williams Decl. Ex. A at 1 (withholding letter that “contains comments
and recommendations, and its content speaks to the deliberative process”). Finally, the DOJ’s
declaration is perhaps the most barebones of them all with regard to the deliberative process
privilege, stating that the withheld documents “are deliberative because they . . . aid [Executive
Branch officials’] deliberations about whether to take certain actions in performing their duties
62
For example, the ODNI claims Exemption 5 to withhold information from an e-mail with the subject line “Re:
FOIA requests—Do these belong to CIA or ODNI?” See Hackett Decl. Ex. D at 3, No. 11-445, ECF No. 29-8. It is
not clear whether ODNI is claiming the attorney-client privilege, the deliberative process privilege, or both with
respect to this communication. Almost the entire text of the e-mail is redacted, other than the subject line and the
salutation to the recipient, and the Court has no document-specific context to determine whether any privilege
applies to this communication.
130
or prerogatives” and “are pre-decisional because they were prepared for the consideration of
those Executive Branch officials before they had decided whether to take such actions.” Colborn
Decl. ¶ 14. This kind of conclusory and circular description of withheld documents is woefully
insufficient to meet the FOIA summary judgment standard.
Accordingly, these deficiencies in the submissions of the CIA, ODNI, DIA, and DOJ
regarding their invocation of the deliberative-process privilege make it impossible for the Court
to grant these agencies summary judgment on that issue. Accordingly, the Court concludes “‘not
that the documents are not exempt as a matter of law, but that the agenc[ies] ha[ve] failed to
supply’ in [their] Vaughn submissions ‘the minimal information necessary to make a
determination’ concerning applicability of the deliberative process privilege.” EFF, 826 F.
Supp. 2d at 173 (quoting Coastal States, 617 F.2d at 861). To the extent that the CIA, ODNI,
DIA, or DOJ withhold any documents, in whole or in part, under Exemption 5 solely on the basis
of the deliberative-process privilege, the Court denies summary judgment to those agencies with
respect to the withholding of those documents, or portions of documents, pursuant to Exemption
5. 63
2. Attorney-Client Privilege
The CIA, DIA, ODNI, and DOJ also invoke the attorney-client privilege to withhold
certain information under Exemption 5. “The attorney-client privilege is the oldest of the
privileges for confidential communications known to the common law.” Upjohn Co. v. United
States, 449 U.S. 383, 389 (1981). “Its purpose is to encourage full and frank communication
between attorneys and their clients and thereby promote broader public interests in the
observance of law and administration of justice.” Id. “[T]he privilege applies only if the person
63
The DOJ clearly relies on both the deliberative process privilege and the attorney-client privilege, in the
alternative, as to all sixteen disputed OLC opinions that were withheld under Exemption 5. See Colborn Decl.
¶¶ 14–15.
131
to whom the communication was made is ‘a member of the bar of a court’ who ‘in connection
with the communication is acting as a lawyer’ and the communication was made ‘for the purpose
of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some
legal proceeding.’” In re Lindsey, 158 F.3d 1263, 1270 (D.C. Cir. 1998) (quoting In re Sealed
Case, 737 F.2d 94, 98–99 (D.C. Cir. 1984)). The Supreme Court has also clearly recognized that
“the privilege exists to protect not only the giving of professional advice to those who can act on
it but also the giving of information to the lawyer to enable him to give sound and informed
advice.” Upjohn, 449 U.S. at 390. “In the governmental context, the ‘client’ may be the agency
and the attorney may be an agency lawyer.” Tax Analysts, 117 F.3d at 618.
a) CIA
Beginning with the CIA’s submissions, the CIA states in its declaration submitted in No.
11-445 that “[s]ome of the records for which information has been withheld pursuant to
Exemption (b)(5) contain confidential communications between CIA staff and attorneys within
the CIA’s Office of General Counsel about the processing of certain FOIA requests.” Third Lutz
Decl. ¶ 37. The CIA also states in this declaration that “[t]hese communications relate to matters
for which the attorneys provided legal advice, and were prepared with the joint expectation that
they would be held in confidence.” Id. In its declaration submitted in No. 11-444, the CIA
declarant provides an almost identical statement. See First Lutz Decl. ¶ 79. Turning to the
CIA’s Vaughn indices, the index provided in No. 11-445 contains the repeated statement that the
document in question “contains advice from legal counsel.” See Third Lutz Decl. Ex. K pt. 3, at
151, 153; Third Lutz Decl. Ex. K pt. 4, at 1–4, 8, 25, 143; Third Lutz Decl. Ex. K pt. 5 at 10, 13,
26–28, 36–39, 42. The Vaughn index provided by the CIA in No. 11-444 parrots the same
language contained in the CIA’s declarations, stating for each withheld document that it
“contains confidential communications between a CIA attorney and CIA officers relating to a
132
matter for which the officers sought legal advice.” See First Lutz Decl. Ex. DD at 54, 66, 102,
121. 64
The statements in the CIA’s submissions are largely insufficient for the Court to conclude
that the documents in question were sent “for the purpose of securing primarily either (i) an
opinion on law or (ii) legal services or (iii) assistance in some legal proceeding.” In re Grand
Jury, 475 F.3d 1299, 1304 (D.C. Cir. 2007) (internal quotation marks omitted). Specifically,
there are three deficiencies in the CIA’s submissions that prevent the Court from granting
summary judgment regarding the majority of the CIA’s invocations of the attorney-client
privilege. First, in both Nos. 11-445 and 11-444, the repeated and carefully circumscribed
statement that communications “relate to matters for which attorneys provide legal advice,” see,
e.g., First Lutz Decl. ¶ 79; Third Lutz Decl. ¶ 37, does not necessarily support the conclusion that
such communications are privileged. For example, if an attorney provided legal advice about a
certain matter at a given point in time, and a staff member separately communicated about that
matter at a later point in time, that latter communication is not privileged simply because it is
“relate[d] to” the matter for which advice was previously given. Rather, to be privileged, the
later communication must be made for the primary purpose of seeking legal advice on that
matter. The language of the CIA’s declaration addresses only the general subject of the
communications in question, but this description is too imprecise to establish the primary
purpose of the communications. As a result, the Court cannot grant summary judgment to the
64
The CIA’s Vaughn index in No. 11-445 also states, without any elaboration, that three documents “contain[] . . .
attorney-client privileged information.” See Third Lutz Decl. Ex. K pt. 4, at 64, 67, 70. Each of these three
documents were only withheld in part. Additionally, the same Vaughn index describes eight other documents as
withheld in full under Exemptions 3 and/or 5 because they purportedly contain “attorney work product,” see Third
Lutz Decl. Ex. K pt. 3, at 122, 128, 132–33, 137, 142, 147, 149, but the CIA does not assert the attorney work-
product doctrine in its declaration or in its briefing. Therefore, the Court construes these passing references in the
CIA’s Vaughn index to be assertions of the attorney-client privilege, rather than the attorney work-product doctrine.
To the extent they are attempts to invoke the attorney work-product doctrine, they are insufficient because the CIA
provides no justification for invoking that doctrine in these eight documents.
133
CIA regarding communications that merely “relate to matters for which the attorneys provided
legal advice.” The CIA must provide more information about these communications to establish
that they were sent or received for the primary purpose of seeking or providing legal advice.
Second, the CIA’s declarations in Nos. 11-444 and 11-445 state that the information
withheld under the attorney-client privilege “was prepared with the joint expectation of the
attorneys and CIA staff that they would be held in confidence.” First Lutz Decl. ¶ 79; see also
Third Lutz Decl. ¶ 37. “The government,” however, “must demonstrate confidentiality in fact,
whatever its subjective intentions may have been.” Am. Immigration Council v. U.S. Dep’t of
Homeland Sec., No. 12-856, 2013 WL 3186061, at *18 (D.D.C. June 24, 2013) (citing In re
Sealed Case, 737 F.2d at 100). The “subjective intentions” of confidentiality put forth by the
CIA are therefore insufficient to establish “confidentiality in fact.” Id.The third and final deficiency manifests only in the CIA’s submissions in No. 11-445.
Twenty-three of the thirty-two documents withheld from release by the CIA under the attorney-
client privilege in No. 11-445 were withheld in their entirety. 65 See Third Lutz Decl. Ex. K pt. 1,
at 3; Third Lutz Decl. Ex. K pt. 3, at 122, 128, 132–33, 137, 142, 147, 149, 151–53; Third Lutz
Decl. Ex. K pt. 4, at 1–4, 8, 25, 143; Third Lutz Decl. Ex. K pt. 5, at 26–28, 42. Although the
CIA’s Vaughn index states that these twenty-three records “contain[] legal advice,” that fact does
not necessarily support the wholesale withholding of such documents. Some portions of these
documents may be protected by the attorney-client privilege, but the CIA’s explanation does not
support the withholding of entire documents. What is more, for the twenty-three documents that
were withheld in full in No. 11-445, the CIA’s submissions do not specify whether Exemption 5
65
The twenty-three documents withheld by the CIA in full under the attorney-client privilege are identified in the
CIA’s Vaughn index by the following Bates numbers: C01255579, C05360946, C05360952, C05360956,
C05362492, C05363265, C05363815, C05365820, C05366449, C05366894, C05366895, C05366902, C-5371430,
C05371431, C05371432, C05371433, C05375987, C05403192, C05549840, C05486085, C05498760, C05498761,
and C05548237.
134
is claimed as to entire documents or only portions of documents. Particularly in light of the
Court’s holding above regarding the scope of the CIA Act and the fact that the CIA also cited the
CIA Act to withhold each of these twenty-three documents, the CIA must explain whether it is
asserting the attorney-client privilege as to all or only a portion of the twenty-three documents in
which that privilege is asserted. Further, if the CIA is only asserting the privilege as to certain
portions of a given record, the CIA must provide an explanation for why the privilege applies to
each portion that is withheld.
The three deficiencies described above preclude summary judgment to the CIA as to the
invocation of the attorney-client privilege to withhold twenty-three documents in full in No. 11-
445 as well as to withhold four documents in No. 11-444. 66 The Court thus will not grant
summary judgment to the CIA with respect to these twenty-seven documents. As a result, the
Court denies summary judgment to CIA regarding its Exemption 5 withholdings in No. 11-444
and 11-445, with the exception of the nine documents that were withheld in part under the
attorney-client privilege in No. 11-445. 67 As to those nine documents, the Court concludes that
the CIA has provided a sufficiently logical and plausible explanation as to why the attorney-
client privilege applies, and therefore summary judgment is appropriate. See ACLU/DOD, 628
F.3d at 619.
Accordingly, the Court will deny summary judgment to the CIA with regard to Count
Seventeen in No. 11-444 and Counts One and Seven in No. 11-445, insofar as the CIA moved
for summary judgment on those counts with respect to its Exemption 5 withholding decisions.
Additionally, the Court will grant in part and deny in part summary judgment to the CIA with
66
These four documents are identified in the CIA’s Vaughn index by the following Bates numbers: C01489077,
C05289038, C05430872 and C01335771.
67
These documents have the following Bates numbers in the CIA’s Vaughn index: C05520575, C05520577,
C05520579, C05461394, C05464372, C05520566, C05520567, C05520571 and C05520573.
135
regard to Counts Two and Three in No. 11-445. The Court will grant summary judgment on
these two counts with respect to the information redacted from nine documents under the
attorney-client privilege, 68 and will deny summary judgment regarding Exemption 5
withholdings as to all other documents at issue in Counts Two and Three in No. 11-445.
b) DIA and ODNI
As with the deliberative-process privilege, the submissions of the DIA and ODNI
regarding the invocation of the attorney-client privilege mirror many of the same deficiencies
contained in the CIA’s submissions. Beginning with the DIA, that agency’s Vaughn index
repeats the exact same boilerplate language in each entry—often using identical boilerplate
phrases twice in the same entry. See, e.g, Second Williams Decl. Ex. A at 1–4. Also, curiously,
the DIA’s Vaughn index does not reference the attorney-client privilege or any element of that
privilege, but instead only references the attorney work-product doctrine. See, e.g., id. (stating
that documents were “withheld . . . as . . . attorney work product” because they were “prepared in
anticipation or in response to civil litigation”). 69 Thus, although the DIA’s declaration
references the attorney-client privilege in passing, see First Williams Decl. ¶ 24, and the
defendants’ briefing states that the DIA withheld documents under the attorney-client privilege,
see Defs.’ First 445 Mem. at 25; Defs.’ First 445 Reply at 15–16, the DIA does not attempt to
establish the applicability of the attorney-client privilege in its Vaughn index. Nothing in the
DIA’s submissions establish that any of the withheld communications were made “for the
purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance
68
See supra note 67.
69
The Supreme Court established the work-product doctrine in Hickman v. Taylor, 329 U.S. 495, 510 (1947), in
which the Court recognized that “it is essential that a lawyer work with a certain degree of privacy, free from
unnecessary intrusion by opposing parties and their counsel.” Therefore, any attempt to obtain the work product of
any attorney, such as “interviews, statements, memoranda, correspondence, briefs, mental impressions,[or] personal
beliefs,” simply “fall[s] outside the arena of discovery and contravenes the public policy underlying the orderly
prosecution and defense of legal claims.” Id. at 510–11. Generally, the work product of an attorney is unavailable
in civil litigation if it was “prepared in anticipation of litigation.” See FED. R. CIV. P. 26(b)(3).
136
in some legal proceeding.” In re Grand Jury, 475 F.3d at 1304 (internal quotation marks
omitted). Hence, the Court denies summary judgment to the DIA regarding its Exemption 5
withholding decisions insofar as they were based upon the attorney-client privilege. The Court
will discuss the DIA’s apparent invocation of the attorney work-product doctrine below. See
infra Part III.J.3.
As to the ODNI, as discussed above, that agency did not submit a document-by-
document Vaughn index, and therefore the Court can only reference the generally applicable
statements contained in the agency’s declaration to determine whether the attorney-client
privilege properly applies to any of its Exemption 5 withholding decisions. The ODNI’s
declarant avers that the documents withheld under the attorney-client privilege and Exemption 5
“contain confidential communications between ODNI staff and an attorney in the ODNI’s Office
of General Counsel.” Hackett Decl. ¶ 25. According to the ODNI’s declarant, “[t]he staff of the
[ODNI’s Information Data and Management Group] routinely relies on OGC for legal advice on
a wide variety of FOIA matters,” and in the withheld communications, “IDMG’s FOIA staff
provides OGC with relevant information in order for OGC to evaluate and provide legal advice.”
Id. The ODNI’s declarant further states that “[t]he information and advice was prepared with the
joint expectation of the attorneys and IDMG staff that they would be held in confidence.” Id. As
discussed above, “[t]he government must demonstrate confidentiality in fact, whatever its
subjective intentions may have been.” Am. Immigration Council, 2013 WL 3186061, at *18
(citing In re Sealed Case, 737 F.2d at 100). The Court thus cannot grant summary judgment on
the grounds that ODNI personnel “expect[ed]” their communications to be held in confidence.
Accordingly, the Court denies summary judgment to the ODNI on Count Six in No. 11-445
regarding its Exemption 5 withholding decisions.
137
c) DOJ
Finally, as to the DOJ, the plaintiff does not seriously contend that the attorney-client
privilege is inapplicable to the sixteen OLC opinions withheld under Exemption 5. Indeed, the
Court concludes that the attorney-client privilege does apply to the sixteen OLC opinions
because they “embody legal advice that was provided in confidence at the request of and to
Executive Branch officials.” Colborn Decl. ¶ 15. The DOJ’s declarant explains that the OLC’s
“principal function” is to provide legal advice to the President and Executive agencies, id. ¶ 2,
and “[a]lthough OLC publishes some opinions and makes discretionary releases of others, OLC
legal advice is generally kept confidential,” id. ¶ 3. It is clear from the DOJ’s declaration that the
primary purpose of these opinions was to convey legal advice to the Executive branch, and
therefore so long as the communications were confidential, the attorney-client privilege applies
to protect them from FOIA disclosure.
The plaintiff contends, however, that the DOJ should be foreclosed from invoking the
attorney-client privilege as to at least five of the sixteen OLC opinions withheld under that
privilege because the plaintiff says that these five opinions have been officially disclosed in the
public domain. 70 See Pl.’s First 445 Opp’n at 32–33. Similar to the plaintiff’s argument above
as to the CIA’s Exemption 1 withholdings, see supra Part III.F.1, the plaintiff contends that
“[t]his evidence casts significant doubt on the good faith of OLC, and the Court should order
DOJ to immediately confirm that none of the information in any of these withheld opinions has
been previously officially disclosed.” Pl.’s First 445 Opp’n at 33 (emphasis in original). As the
Court discussed above, however, it is a requester’s burden to “point to specific information in the
70
It is unclear from the plaintiff’s argument whether it contends that the attorney-client privilege does not apply
because the advice in question was not confidential, or whether the plaintiff relies solely on a theory of official
acknowledgement, see Fitzgibbon, 911 F.2d at 765 (“[W]hen information has been ‘officially acknowledged,’ its
disclosure may be compelled even over an agency’s otherwise valid exemption claim.”). The Court will proceed to
address both potential bases for denying summary judgment.
138
public domain” that is “identical to that being withheld.” Davis, 968 F.2d at 1280. To secure
summary judgment, an agency is not required to demonstrate that it performed an exhaustive
search of publicly available records. See id. at 1279. Hence, the fact that certain withheld
information exists in the public domain does not suggest bad faith on the part of an agency
because an agency is not obligated to “prov[e] the negative—that information has not been
revealed.” See id. For these reasons, the Court concludes that the public availability of certain
records withheld by the DOJ is not evidence of bad faith on the part of that agency. The Court
will proceed to discuss whether the plaintiff has met its burden to “point to specific information
in the public domain” that is “identical to that being withheld.” Id. at 1280.
The plaintiff contends that five of the withheld OLC opinions have been officially
disclosed in the public domain. See Pl.’s First 445 Opp’n at 31–32. The plaintiff is only able to
produce evidence that one of these sixteen opinions (Document 11, see Colborn Decl. Ex. G, No.
11-445, ECF No. 29-11) has been actually and officially disclosed in the public domain. That
opinion is apparently contained in the National Archives in an unredacted form, see id. at 32, and
the defendants “assume NSC is no longer challenging the withholding of” this opinion, Defs.’
First 445 Reply at 21 n.6. 71
The rest of the publicly available information cited by the plaintiff is comprised of
references to or summaries of four other OLC opinions that were withheld by the DOJ in this
case. See Pl.’s First 445 Opp’n at 32–33. As to the second of the OLC opinions (Document 3),
the plaintiff cites meeting minutes from the Interagency Classification Review Committee
(“ICRC”), which “record[] in great detail the summary [of an OLC opinion] . . . as well as a
71
The plaintiff does not clarify whether it continues to challenge the withholding of Document 3. Since the plaintiff
does not address this issue in its sur-reply brief in No. 11-445, and because the plaintiff does not ask the Court to
direct the DOJ to produce Document 3 to the plaintiff, the plaintiff does not appear to continue to challenge the
DOJ’s decision to withhold Document 3.
139
recorded decision to implement the opinion.” Id. at 32. These meeting minutes, which the
plaintiff attaches as an exhibit to its summary judgment opposition, do contain a summary of a
summary of Document 3, provided by then-OLC attorney Antonin Scalia at an ICRC meeting.
See Pl.’s First 445 Opp’n Ex. K at 3–4, No. 11-445, ECF No. 33-11. These meeting minutes
appear to convey the thrust of the legal advice provided by the OLC in Document 3, stating, for
example, that “with respect to the second question, it was the [DOJ’s] opinion that the CIA’s
response to Mr. Slocombe was inadequate.” Id. at 4.
The D.C. Circuit’s decisions on official acknowledgement under the FOIA require a
requester to establish that “the information requested [is] as specific as the information
previously released” and that “the information . . . match[es] the information previously
disclosed.” See, e.g., Wolf, 473 F.3d at 378 (quoting Fitzgibbon, 911 F.2d at 765). Additionally,
“voluntary disclosure of privileged material subject to the attorney-client privilege to
unnecessary third parties in the attorney-client privilege context ‘waives the privilege, not only
as to the specific communication disclosed but often as to all other communications relating to
the same subject matter.’” In re Sealed Case, 121 F.3d 729, 741 (D.C. Cir. 1997). With regard
to Document 3, although the information disclosed in the public record about that opinion
appears to reveal at least some of the legal opinion’s conclusions, the plaintiff is unable to
establish that “the information requested [is] as specific as the information previously released.”
See Wolf, 473 F.3d at 378. This is because “the information requested” was the OLC opinion
itself, and not just a summary of certain conclusions contained in the opinion. Nevertheless, the
public disclosure of at least a portion of the contents of Document 3 waives the attorney-client
privilege as to that portion of the opinion, see In re Sealed Case, 121 F.3d at 741, and therefore
the DOJ cannot assert attorney-client privilege to withhold it. Accordingly, the Court will direct
140
the DOJ to disclose to the plaintiff those portions of Document 3 (a memorandum entitled
“Applicability of User’s Fee Statute to Mandatory Declassification Review,” see Colborn Decl.
Ex. G) that were disclosed in the meeting minutes submitted by the plaintiff. 72
As to the third of the five opinions (Document 4), the plaintiff has submitted “a cable
from the U.S. Embassy in Tokyo to Washington, D.C.,” which the plaintiff says “sum[s] up” the
conclusions of Document 4. See Pl.’s First 445 Opp’n at 32. The plaintiff also asserts that this
cable contains “an express citation to the opinion.” Id. The cable submitted by the plaintiff cites
to an “unclassified telegram” dated December 23, 1975 from the Drug Enforcement
Administration (“DEA”) headquarters, not to an OLC opinion. See Pl.’s First 445 Opp’n Ex. L
at 1, No. 11-445, ECF No. 33-12. The cable goes on to quote from this telegram, summarizing
“the opinion of Mary Lawton” regarding the status of government employees assigned to
diplomatic or consular missions for purposes of the Privacy Act. See id. It may very well be that
this cable is indirectly summarizing Document 4, which was a legal opinion authored by the
OLC on May 6, 1975. See Colborn Decl. Ex. G. The cable does not, however, include “an
express citation to the opinion,” as the plaintiff asserts, Pl.’s First 445 Opp’n at 32, and the only
connection to the OLC is the cable’s reference to “the opinion of Mary Lawton, Deputy Asst
Attorney General, Office of Legal Counsel,” Pl.’s First 445 Opp’n Ex. L at 1. This sparse
information is insufficient for the Court to conclude that the cable submitted by the plaintiff
discloses any of the contents of Document 4 in particular, and therefore the Court cannot
conclude that Document 4 has been officially disclosed in whole or in part or that the DOJ has
waived the attorney-client privilege as to any portion of Document 4.
72
Portions of Document 3 may not have been disclosed in the meeting minutes submitted by the plaintiff and thus
need not be disclosed to the plaintiff. On the other hand, disclosure of Document 3 in its entirety is appropriate if the
entire substance of which is reflected in those publicly available meeting minutes.
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Next, as to the fourth of the OLC opinions (Document 13), the plaintiff submits a
subsequent, publicly available OLC opinion that “directly reference[s]” a conclusion contained
in Document 13. The publicly available OLC opinion submitted by the plaintiff specifically
cites Document 13, stating “[w]e . . . opined in 1982 that advisory committee documents are
available through FOIA requests made to the supervising agency and that the advisory
committee must cooperate.” Pl.’s First 445 Opp’n Ex. M at 3, No. 11-445, ECF No. 33-13. This
brief discussion of Document 13 clearly discloses at least one conclusion of that OLC opinion,
and therefore the DOJ once again cannot rely on the attorney-client privilege to withhold that
disclosed material. See, e.g., In re Sealed Case, 121 F.3d at 741. The Court will therefore direct
the DOJ to disclose to the plaintiff the specific portion or portions of Document 13 which
“opine[] . . . that advisory committee documents are available through FOIA requests made to
the supervising agency and that the advisory committee must cooperate.” See Pl.’s First 445
Opp’n Ex. M at 3.
Finally, as to the fifth OLC opinion challenged by the plaintiff (Document 2), the plaintiff
submits “systematic declassification review guidelines” promulgated by the Information Security
Oversight Office (“ISOO”), “pertaining to, among other things, foreign government
information,” which is the general subject of Document 2. See Pl.’s First 445 Opp’n at 33. The
plaintiff has also submitted a letter from an OLC official providing the ISOO “with [OLC’s] full
concurrence concerning these guidelines.” Pl.’s First 445 Opp’n Ex. N at 9, No. 11-445, ECF
No. 33-14. The plaintiff contends that “OLC’s concurrence suggest that these guidelines relied
in part on the conclusions of Doc[ument] 2.” Pl.’s First 445 Opp’n at 33 n.26. The plaintiff’s
argument attempting to connect the ISOO’s guidelines with Document 2, however, is a stretch to
say the least. Although it is possible that the ISOO guidance submitted by the plaintiff may have
142
relied upon some or all of the legal advice contained in Document 2, that conclusion is far from
clear. Even had the ISOO relied on the OLC’s legal advice in Document 2, the disclosure of
guidelines based on legal advice does not constitute a disclosure of the legal advice itself. The
connection is simply too attenuated to constitute either an official acknowledgement or a waiver
of the attorney-client privilege. The Court therefore concludes that the plaintiff’s thin evidence
does not establish any official disclosure of the contents of Document 2 or any waiver of the
attorney-client privilege as applied to that document, and therefore the DOJ was entitled to
withhold Document 2 under the attorney-client privilege.
In summary, the Court grants summary judgment to the DOJ on Count Eight in No. 11-
445 as to thirteen of the sixteen withheld OLC opinions in their entirety (Documents 1–2, 4–10,
12, 14–16, see Colborn Decl. Ex. G). The Court concludes that the plaintiff’s challenge to
Document 11 is now moot because the plaintiff has obtained an unredacted copy of that opinion
and has not asked the Court to direct the DOJ to produce a further copy pursuant to the plaintiff’s
FOIA request. The Court will deny summary judgment in part to the DOJ as to the portions of
Documents 3 and 13 that were publicly disclosed in the documents submitted by the plaintiff.
The DOJ will be required to disclose the portions of Documents 3 and 13 that correspond to the
pieces of privileged information that were made publicly available by the agencies who received
the legal advice in question from the OLC. 73
3. Attorney Work-Product Doctrine
Finally, the Court will address the DIA’s apparent invocation of the attorney work-
product doctrine to withhold responsive records under Exemption 5. See Judicial Watch, Inc. v.
73
The Court will not, however, “order DOJ to immediately confirm that none of the information in any of these
withheld opinions has been previously officially disclosed,” as the plaintiff requests. See Pl.’s First 445 Opp’n at 33
(emphasis in original). The burden remains on the plaintiff “point to specific information in the public domain” that
is “identical to that being withheld.” Davis, 968 F.2d at 1280.
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Dep’t of Justice, 432 F.3d 366, 369 (D.C. Cir. 2005) (“FOIA Exemption 5 incorporates the
work-product doctrine and protects against the disclosure of attorney work product.”). “The
work-product doctrine shields materials ‘prepared in anticipation of litigation or for trial by or
for another party or by or for that other party’s representative (including the other party’s
attorney, consultant, surety, indemnitor, insurer, or agent).’” Id. (quoting FED. R. CIV. P.
26(b)(3)). When reviewing an agency’s withholding of material under the work-product
doctrine, the “‘testing question’ . . . is ‘whether, in light of the nature of the document and the
factual situation in the particular case, the document can fairly be said to have been prepared or
obtained because of the prospect of litigation.’” In re Sealed Case, 146 F.3d 881, 884 (D.C. Cir.
1998) (quoting Senate of P.R., 823 F.2d at 586 n.42). “For a document to meet this standard, the
lawyer must have at least had a subjective belief that litigation was a real possibility, and that
belief must have been objectively reasonable.” Id. Hence, at a minimum, an agency claiming
the attorney work-product doctrine to withhold responsive material under the FOIA must (1)
“provide a description of the nature and contents of the withheld document,” (2) “identify the
document’s author or origin (by job title or otherwise),” (3) “describe the factual circumstances
that surround the document’s creation,” and (4) “provide some indication of the type of litigation
for which the document’s use is at least foreseeable.” Am. Immigration Council, 2013 WL
3186061, at *16.
In its declarations, the DIA states that “a significant portion of the responsive records
identified in this case related to other civil cases that arose from FOIA requests submitted by
requesters referenced in [the plaintiff’s] request.” First Williams Decl. ¶ 24. The DIA’s
declarant further averred that “[t]hese records consist of the active discussions between counsel
assigned by the Office of the General Counsel with DIA and other government employees in
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preparation of the agency’s defense in litigation.” Id. Accordingly, the DIA asserts that
“disclosure of this information would reveal the case preparation, legal advice, and review
recommendations of agency counsel.” Id. The DIA’s declarant states that “[i]n each instance
where Exemption [5] is asserted to protect the attorney work-product, I have concluded that
agency counsel was providing specific legal guidance related to an actual or potential litigation
matter.” Second Williams Decl. ¶ 12. The DIA’s Vaughn index provides (1) the date that each
withheld document was created, (2) a very brief description of the document (e.g., “2-page
letter”), (3) the agency that originated the document, and (4) a boilerplate statement that the
document “contains comments and recommendations” and that it was withheld “as an attorney
work product” because it “was prepared in anticipation of litigation.” See Second Williams
Decl. Ex. A.
The Court concludes that the DIA’s submissions do not provide enough factual context
regarding each of the withheld documents for the Court to conclude that each document is
entitled to the protections of the attorney work-product doctrine. Specifically, the DIA fails to
provide any document-specific information about “the factual circumstances that surround the
document’s creation.” See Am. Immigration Council, 2013 WL 3186061, at *16. In this regard,
the DIA’s Vaughn index does not specify whether the document was created with regard to a
case currently in litigation or a case that was likely to enter litigation. The DIA’s Vaughn index
also provides nearly no information about the nature of each specific document, which is critical
in determining whether the protections of the attorney work-product doctrine apply. See Senate
of P.R., 823 F.2d at 586 n.42. Although the DIA’s declarant states generally that each withheld
document contains “legal guidance related to an actual or potential litigation matter,” Second
Williams Decl. ¶ 12, the DIA has the burden to establish that fact with respect to each document.
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This is particularly important for documents created with an eye toward “potential litigation”
because, when litigation is only a possibility, the Court is required to assess “whether, in light of
the nature of the document and the factual situation in the particular case, the document can
fairly be said to have been prepared or obtained because of the prospect of litigation.” Senate of
P.R., 823 F.2d at 586 n.42. The Court has no way to make that document-by-document
assessment based on the DIA’s submissions. Indeed the Court has no way of knowing which
documents withheld by the DIA were prepared with respect to “actual . . . litigation” and which
were prepared with respect to “potential litigation.” See Second Williams Decl. ¶ 12.
Accordingly, the Court denies summary judgment to the DIA on Count Five in No. 11-445 with
respect to its Exemption 5 withholdings.
***
In sum, the Court denies summary judgment to the CIA, ODNI, DIA, and DOJ with
respect to each agency’s decision to withhold responsive material under Exemption 5.
Specifically, with respect to each agency’s Exemption 5 withholding decisions, the Court denies
summary judgment to the CIA with regard to Count Seventeen in No. 11-444 and Counts One,
Two, Three, and Seven in No. 11-445, to the ODNI with regard to Count Six in No. 11-445, and
to the DIA with regard to Count Five in No. 11-445. These agencies may either renew their
summary judgment motion with supplementary declarations and Vaughn indices, or else they
must disclose to the plaintiff the responsive records or portions thereof that were withheld under
Exemption 5. Finally, the Court grants in part and denies in part summary judgment to the DOJ
on Count Eight in No. 11-445. The Court denies summary judgment to the DOJ on Count Eight
as to the portions of Documents 3 and 13 that were publicly disclosed in the documents
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submitted by the plaintiff, and the Court grants summary judgment to the DOJ in all other
respects.
K. Electronic Records
The plaintiff next opposes a grant of summary judgment to the CIA and the State
Department regarding those agencies’ refusal to provide responsive records in electronic format.
See Pl.’s First 444 Opp’n at 39–40; Pl.’s First 445 Opp’n at 37. The FOIA provides, “[i]n
making any record available to a person . . . an agency shall provide the record in any form or
format requested by the person if the record is readily reproducible by the agency in that form or
format.” 5 U.S.C. § 552(a)(3)(B). In this regard, “[e]ach agency shall make reasonable efforts to
maintain . . . records in forms or formats that are reproducible for purposes of this section.” Id.Finally, the FOIA requires that “a court shall accord substantial weight to an affidavit of an
agency concerning . . . reproducibility under paragraph (3)(B).” Id. § 552(a)(4)(B).
There are two separate issues under the FOIA’s “readily reproducible” provision. The
first issue is whether or not a particular record “is readily reproducible by the agency in [the]
form or format [requested by the person],” 5 U.S.C. § 552(a)(3)(B), and the “form or format” in
this case is an electronic format. The second issue is whether the State Department has “ma[d]e
reasonable efforts to maintain its records in forms or formats that are reproducible” in electronic
format. Id. 74 Both of these provisions were added to the FOIA as a part of the 1996 Electronic
74
The CIA has previously asserted that “[i]n determining whether an agency has met this [second] requirement,
courts look at whether agency records can be reproduced, not whether they can be readily reproduced in the format
requested by a particular requester.” Def.’s Supplemental Mem. & Decl. at 2, No. 11-443, ECF No. 21. The Court
disagrees. The statute reads: “In making any record available to a person under this paragraph, an agency shall
provide the record in any form or format requested by the person if the record is readily reproducible by the agency
in that form or format. Each agency shall make reasonable efforts to maintain its records in forms or formats that
are reproducible for purposes of this section.” 5 U.S.C. § 552(a)(3)(B) (emphasis added). The only two references
to the word “reproducible” in the FOIA are in subsection 552(a)(3)(B), and therefore the Court reads the phrase
“reproducible for purposes of this section” to mean “reproducible [in the form or format requested by the person
seeking the records].” The Court has previously stated on the record in this case that this is how it interprets the
language of 5 U.S.C. § 552(a)(3)(B). See Tr. of Status Conference (Dec. 16, 2011) at 20:20–21:4 (excerpt available
at ECF No. 22-4, No. 11-443).
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FOIA Amendments (“E-FOIA Amendments”). See Pub. L. No. 104-231, § 5, 110 Stat. 3048,
3050 (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,” and they were specifically intended to encourage government agencies to “use
new technology to enhance public access to agency records and information.” Id. § 2, 110 Stat.
at 3048–49. The legislative history of the E-FOIA Amendments elaborated on this purpose,
observing that the objective of “promoting greater efficiency in responding to FOIA requests . . .
includes using technology to let requesters obtain information in the form most useful to them.”
H.R. Rep. 104-795, at 11 (1996).
1. CIA
With respect to the CIA, the Court first observes that the electronic records issue is not
properly before the Court on summary judgment. The CIA has not moved for summary
judgment on this issue, or at least does not specifically address this issue in moving for summary
judgment in No. 11-443 or 11-444. Additionally, although the plaintiff contends in its
opposition brief in No. 11-444 that “[t]he Court should order [the CIA] to promptly produce
[certain] records in electronic format and to make provisions for the production in electronic
format of records responsive to the remainder of NSC’s requests at issue in this case,” Pl.’s First
444 Opp’n at 40, the plaintiff likewise has not cross-moved for summary judgment on the
electronic records issue.
The plaintiff first raised the electronic records issue in these related cases in the context
of a discovery dispute with the CIA in No. 11-443. See Pl.’s Mot. for Status Conference
Regarding Count 3, No. 11-443, ECF No. 15. In particular, the plaintiff “request[ed] a status
conference regarding [the] CIA’s refusal to provide electronic records in response to [the] FOIA
Request [at issue in Count Three in No. 11-443].” Id. at 1. The Court granted the plaintiff’s
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request and held a status conference on this issue on December 16, 2011. See Minute Order dated
Dec. 8, 2011, No. 11-443. The Court also permitted the parties to submit authority in support of
their respective positions, see id., and, following the status conference, directed the CIA to
submit further explanation of three specific issues that were raised but not satisfactorily resolved
at the status conference, see Minute Order dated Dec. 16, 2011, No. 11-443. The plaintiff
subsequently moved for a second status conference, see Mot. for Supplemental Status
Conference Regarding Count 3 & Electronic Records, No. 11-443, ECF No. 22, but the Court
denied this request. See Minute Order dated Jan. 31, 2012, No. 11-443. The Court observed that
the CIA’s declarations on the electronic records issue “are not a model of clarity,” but the Court
concluded that “another status conference on this same topic will divert judicial resources from
the pending motion [to dismiss] in this case and the issues raised may be more efficiently
addressed in the context of the pending motion for summary judgment in [No. 11-444].” Id.
Unfortunately, the electronic records issue cannot be “more efficiently addressed in the
context of the pending motion for summary judgment in [No. 11-444].” See id. As discussed
above, the CIA has not specifically addressed that issue in moving for summary judgment in No.
11-444, and the CIA only submitted a declaration on that issue in its reply brief in that case. See
Def.’s First 444 Reply at 23–4. To the extent that the CIA implicitly moved for summary
judgment on the electronic records issue by submitting a declaration attached to its reply brief,
the Court denies summary judgment to the CIA because the declarations submitted by the CIA
on this issue appear to the Court as unclear and internally inconsistent. Of particular note, the
first declaration, submitted by Susan Viscuso, the former chief of the CIA’s PIPD, stated that
“the CIA maintains two different IT systems, a classified system and an unclassified system.”
See Decl. of Susan Viscuso (Dec. 13, 2011) (“First Viscuso Decl.”) ¶ 5, No. 11-443, ECF No.
149
19-1. The declarant also averred that “[w]hen records responsive to Plaintiff’s FOIA request
were located, they were scanned and uploaded to the classified system.” Id. ¶ 6. This statement
strongly implies that responsive records were located somewhere other than the CIA’s classified
system and, after being located, were “scanned and uploaded to the classified system.” See id.
(emphasis added). Yet, in her second declaration, Ms. Viscuso averred that “[t]he CIA does not
transfer documents from the unclassified system to the classified system for review and
redaction pursuant to a FOIA request,” and “[i]nstead, the unclassified records are already
stored on the classified system.” Supplemental Decl. of Susan Viscuso (Jan. 13, 2012) (“Second
Viscuso Decl.”) ¶ 3, No. 11-443, ECF No. 21-1(emphasis added).
The CIA’s declarant does not reconcile how it is that the agency “does not transfer
documents from the unclassified system to the classified system,” Second Viscuso Decl. ¶ 3,
while, at the same time, records responsive to the plaintiff’s FOIA request were “scanned and
uploaded to the classified system” after being located, First Viscuso Decl. ¶ 5 (emphasis added).
Relatedly, if responsive records are located elsewhere before being “scanned and uploaded to the
classified system,” see First Viscuso Decl. ¶ 5, but “all CIA systems of records are located on the
Agency’s classified system,” Second Viscuso Decl. ¶ 4, the CIA does not explain in which
system of records the potentially responsive records were “located” prior to being “scanned and
uploaded to the classified system,” see First Viscuso Decl. ¶ 5. 75 These statements, read
together, appear inconsistent with one another, or at the very least these statements raise further
questions about how the CIA stores, locates, and internally transfers potentially responsive
records during the processing of FOIA requests. These lingering questions prevent the Court
from being able to grant summary judgment to the CIA on the issue of refusing to produce
75
Additionally, if some potentially responsive records are located in places other than “systems of records,” the CIA
does not explain where such repositories of records are located or why they are not required to be located on the
CIA’s classified system. See Second Viscuso Decl. ¶ 4.
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electronic records. 76 Therefore, the Court denies summary judgment to the CIA on Count Three
in No. 11-443 and on Counts Seventeen and Eighteen in No. 11-444 regarding the CIA’s refusal
to produce responsive records in an electronic format. 77
2. State Department
With respect to the State Department, the plaintiff contends that the agency “has now
implemented a FOIA processing system which only resides on its classified network, making it
impossible for it to easily produce electronic records in response to a FOIA request.” Pl.’s First
445 Opp’n at 37. The plaintiff claims that “State converted to this system only within the past
two years,” making State’s decision “even more questionable.” Id. The State Department
explains in its sworn declaration that it “processes and reviews documents potentially responsive
to a FOIA or Privacy Act request on its classified network, which is also where the [State]
Department’s redaction capabilities exist.” First Walter Decl. ¶ 25. The State Department avers
that processing potentially responsive documents on its classified system is necessary for three
reasons. First, the State Department avers that “the Department must conduct a line-by-line
classification review of all information responsive to a FOIA request regardless of how such
documents are marked, and regardless of whether, in the abstract, they are likely to contain
classified information.” Id. ¶ 26. Second, the State Department claims that it must review all
potentially responsive documents on its classified system because “the software the Department
uses to review potentially responsive material also contains its only ability to redact
76
The Viscuso declarations only addressed “the records responsive to Plaintiff’s FOIA request [in Count Three of
No.11-443].” See First Viscusco Decl. ¶ 3. The CIA submitted a separate declaration authored by Scott Koch, the
chief of the CIA’s Information Review and Release Group, regarding the FOIA requests at issue in Counts
Seventeen and Eighteen in No. 11-444. See Decl. of Scott Koch (Feb. 27, 2012) (“Koch Decl.”) ¶ 4, No. 11-444,
ECF No. 27-1. The Koch Declaration, however, adds nothing to the information contained in the Viscuso
declarations and therefore does not resolve any of the lingering questions raised by those declarations.
77
It may be that these and other lingering factual questions in these cases will have to be resolved in the traditional
manner of resolving factual disputes in the federal judicial system—a hearing or trial. See Margaret B. Kwoka, The
Freedom of Information Act Trial, 61 AM. U. L. REV. 217, 268 (2011) (contending that “[a] look at the records in
those rare FOIA trials demonstrates both that FOIA trials are possible and that they are useful”).
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information.” Id. ¶ 27. Third, the State Department states that processing FOIA requests on its
classified network is necessary because “[a] significant portion of the Department’s business is
classified,” and “a large number of the documents responsive to FOIA requests received by the
Department are classified documents,” and thus “the Department’s software for processing
information access requests was designed for and installed on the Department’s classified
system.” Id.
Additionally, the State Department’s declarant explains in detail why “[p]roviding
Plaintiff with electronic versions of responsive documents would be very costly and time-
consuming because of the additional steps the Department would have to take to comply with its
information security procedures.” Id. ¶ 29. First, these “information security procedures” would
require “that an analyst within IPS locate and identify all non-exempt, releasable records within
the processing system and then submit a formal, written request to the internal systems support
staff in IPS stating that all such records have been deemed suitable for transfer.” Id. Second,
“[u]sing special extraction software, the systems support staff would . . . have to remove the
releasable records from the Department’s processing system and place them in a folder on the
classified network for further review by the Bureau’s Information Systems Security Officer
(‘ISSO’).” Id. Third, according to the State Department, “[t]he ISSO would then have to inspect
each and every document [a second time] on a line-by-line basis to ensure that only the
releasable, unclassified records were captured.” Id. Fourth, “a request for support . . . would
have to be opened with the Department’s Bureau of Information Resource Management
(‘IRM’).” Id. ¶ 30. Fifth, “[a]fter a virus scan of the unclassified medium, IRM would then
transfer each of the documents onto the medium and return the medium to the IPS analyst.” Id.
Finally, “the analyst would have to compare the contents of each of the downloaded files with
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the contents of each of the records in the classified processing system to ensure that each and
every releasable record was properly downloaded.” Id. The State Department avers that “this
entire process would potentially take weeks or months for each tranche of releasable
documents.” Id.
Regarding the question of whether or not State Department records responsive to the
plaintiff’s FOIA request were “readily reproducible by the agency in [an electronic] form or
format,” 5 U.S.C. § 552(a)(3)(B), the Court is somewhat skeptical regarding the State
Department’s explanation of the labyrinthine steps that are necessary to move a document from
the classified system to an unclassified piece of electronic media. Specifically, the State
Department does not explain why an ISSO would need to perform a second line-by-line review
of responsive documents after such documents had already been reviewed by IPS. See First
Walter Decl. ¶ 29. Since the State Department “must conduct a line-by-line classification review
of all information responsive to a FOIA request” in the ordinary course of responding to FOIA
requests, see id. ¶ 26 the line-by-line review by an ISSO would either be completely duplicative
and unnecessary or, if the ISSO’s line-by-line review were the only one performed, it would not
add anything to the State Department’s normal burden in responding to FOIA requests.
Other than this second, redundant line-by-line review of documents by the ISSO, none of
the additional steps required to produce documents in electronic format appear unduly
burdensome. 78 The only one of the additional steps that would appear to involve a substantial
amount of time or effort would be the requirement that the IPS analyst compare the contents of
78
The State Department also does not explain why it must call on multiple middlemen to effect the transfer of
information from one network to another. In this regard, it strikes the Court as extremely inefficient for the State
Department to pass documents from IPS analysts to “systems support staff” to an ISSO, to the IRM, and then back
to the IPS analyst. The implication of the State Department’s declaration is that, in the ordinary course, an IPS
analyst is usually the only person to review documents for release, notwithstanding any requirement for approval
from superiors. It would presumably minimize the risk of error (and the risk of releasing classified information) by
limiting the number of people who handle releasable information, yet the State Department appears to do just the
opposite.
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the electronic medium to the contents of the classified processing system to ensure that all
releasable records are included. See id. ¶ 30. Yet, even this task would be almost entirely
ministerial, since the State Department does not claim that this final step would require a line-by-
line or even page-by-page review.
Therefore, the Court concludes that, even considering the “substantial weight” owed to
the State Department’s declaration on the issue, see 5 U.S.C. § 552(a)(4)(B), the State
Department has not carried its burden of establishing that the records requested by the plaintiff
are not “readily reproducible” in an electronic format. Accordingly, the Court will not reach the
second issue of whether the State Department has “ma[d]e reasonable efforts to maintain records
in forms or formats that are reproducible” in electronic format. See id. § 552(a)(3)(B). The
Court thus denies summary judgment to the State Department on Count Nine in No. 11-445
regarding the agency’s decision not to produce responsive records to the plaintiff in an electronic
format. The Court will permit the State Department either to submit a further declaration
describing in more detail the exact burden involved in reproducing responsive records in an
electronic format or to release the records responsive to the plaintiff’s FOIA request in an
electronic format.
L. Segregability
Finally, the Court will address whether the defendants have met their burden of
demonstrating that “[a]ny reasonably segregable portion of a record [was] provided to [the
plaintiff] after deletion of the portions which are exempt under [the FOIA].” 5 U.S.C. § 552(b).
At various points throughout its briefing, the plaintiff contends that the defendants have failed to
satisfy this burden. See, e.g., Pl.’s First 443 Opp’n at 13, 19; Pl.’s First 444 Opp’n at 29; Pl.’s
First 445 Opp’n at 9, 23. The CIA, ODNI, DIA, and State Department have averred that all
reasonably segregable portions of withheld material have been provided to the plaintiff. See
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First Lutz Decl. ¶ 81; Third Lutz Decl. ¶ 43; Hackett Decl. ¶ 33; First Walter Decl. ¶ 38; First
Williams Decl. ¶ 26. The DOJ and NSA, however, have not provided any similar
representations to the Court.
The D.C. Circuit has acknowledged that establishing adequate segregation of non-exempt
material “presents problems for the agency since . . . segregability depends entirely on what
information is in a document and how it is presented.” Mead Data, 566 F.2d at 261. Therefore,
although “agencies should not be forced to provide such a detailed justification that would itself
compromise the secret nature of potentially exempt information,” agencies “must be required to
provide the reasons behind their conclusions in order that they may be challenged by FOIA
plaintiffs and reviewed by the courts.” Id. To this end, the Circuit has said that “[i]n addition to
a statement of its reasons, an agency should also describe what proportion of the information in a
document is non-exempt and how that material is dispersed throughout the document.” Id.Under Mead Data, if a small proportion of the information is non-exempt, the agency’s
explanatory burden is less, and if a larger proportion of the information is non-exempt, “the
courts should require a high standard of proof for an agency claim that the burden of separation
justifies nondisclosure or that disclosure of the non-exempt material would indirectly reveal the
exempt information.” Id.On the other hand, however, the Circuit has more recently held that “[a]gencies are
entitled to a presumption that they complied with the obligation to disclose reasonably
segregable material,” which must be overcome by some “quantum of evidence” by the requester.
Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1117 (D.C. Cir. 2007). Indeed, more recent
decisions from the D.C. Circuit have indicated that the standard first articulated in Mead Data
has been relaxed. Those decisions have held that an agency may satisfy its segregability
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obligations by (1) providing a Vaughn index that adequately describes each withheld document
and the exemption under which it was withheld; and (2) submitting a declaration attesting that
the agency released all segregable material. See, e.g., Loving, 550 F.3d at 41 (stating that “the
description of the document set forth in the Vaughn index and the agency’s declaration that it
released all segregable material” is “sufficient for [the segregability] determination”); Johnson v.
Exec. Office for U.S. Attorneys, 310 F.3d 771, 776 (D.C. Cir. 2002) (upholding agency’s
segregation efforts based on “comprehensive Vaughn index” and “the affidavits of [agency
officials]”).
Under the segregability standards more recently articulated by the D.C. Circuit in Loving
and Johnson, the Court first concludes that the DOJ has failed to satisfy its segregability burden
because it has failed to submit a declaration attesting that it released all segregable, non-exempt
material. This is a basic requirement, and without it the Court cannot conclude that the DOJ has
satisfied its segregability obligations. Furthermore, although the CIA, ODNI, and DIA have
averred that all reasonably segregable portions of withheld material have been provided to the
plaintiff, the Court has also concluded above that all three of these agencies, as well as the DOJ,
have deficiencies in their Vaughn indices. See supra Part III.H, III.J. In light of these
deficiencies, the Court concludes that the segregability efforts of the CIA, ODNI, DIA, and DOJ
do not meet even the more lenient standard articulated in Loving and Johnson. Those cases
require, at a minimum, that an agency submit a “comprehensive Vaughn index,” see Johnson,
310 F.3d at 776, which sufficiently describes each document withheld and the reasons for the
withholding, see Loving, 550 F.3d at 41. Although the Court does not doubt the sworn
statements from the CIA, ODNI, and DIA about their segregability efforts, see First Lutz Decl.
¶ 81; Third Lutz Decl. ¶ 43; Hackett Decl. ¶ 33; First Williams Decl. ¶ 26, absent a sufficient
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Vaughn index, an agency must provide other facts, beyond its good-faith assurances, that would
establish that it released all reasonably segregable, non-exempt material. Such information could
include, for example, a description of “what proportion of the information in a document is non-
exempt and how that material is dispersed throughout the document.” See Mead Data, 566 F.2d
at 261.
Finally, as to the State Department, that agency has sufficiently demonstrated that it has
satisfied its segregability obligations with respect to the one responsive document that it has thus
far withheld, in whole or in part, which is disputed in this case. As to that document, the State
Department has provided a detailed description, averring that it is a 91-page “guide to the
procedures used for processing information access requests received by the [State] Department.”
First Walter Decl. ¶ 35. The only portion of the document that the State Department withheld
was “a three-line footnote describing an exception to the guidelines for handling material
referred by the [State] Department to another government agency.” Id. ¶ 36. The Court is
satisfied from this detailed description, in tandem with the State Department’s good-faith
assurance that “[t]here is no additional meaningful non-exempt material that may be segregated
and released,” id., that the State Department has satisfied its segregability obligations under the
FOIA. See Loving, 550 F.3d at 41; Johnson, 310 F.3d at 776. 79
IV. CONCLUSION
For the reasons discussed above, in summary, the Court rules on the defendants’ motions
for summary judgment, the plaintiff’s cross-motions for summary judgment, the plaintiff’s
79
The Court need not assess the segregability efforts of the NSA because the plaintiff does not challenge any
withholding decisions made by the NSA, and thus the Court need not review any such withholding decisions. See,
e.g., Sussman, 494 F.3d at 1116 (holding that “the district court must make specific findings of segregability
regarding the documents to be withheld” only “[b]efore approving the application of a FOIA exemption”).
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motion for leave to file an amended complaint, and the plaintiff’s motion for sanctions as
follows:
Civil Action No. 11-443
• The Court grants summary judgment to the plaintiff on Count One in No. 11-443. See
supra Part III.C.1.
• The Court grants summary judgment to the plaintiff on Count Two in No. 11-443. See
supra Part III.C.1.
• The Court grants in part and denies in part summary judgment to the CIA on Count Three
in No. 11-443. The Court denies summary judgment to the CIA on Count Three with
respect to (1) the CIA’s withholding of responsive information under FOIA Exemption 3
and the CIA Act, 50 U.S.C. § 403g, see supra Part III.H.1; (2) the CIA’s refusal to
produce responsive records in an electronic format, see supra Part III.K.1; and (3) the
CIA’s withholding of the “two-page classified TOC from volume 53 (number 2)” of
Studies in Intelligence, see Fourth Lutz Decl. ¶ 11, pursuant to Exemption 1, see supra
Part III.F.2. The Court grants summary judgment to the CIA on Count Three in all other
respects.
• The Court denies the plaintiff’s Motion for Sanctions, No. 11-443, ECF No. 50. See
supra Part III.B.
Civil Action No. 11-444
• The Court grants summary judgment to the CIA on Count One in No. 11-444. See supra
Part III.E.3.
• The Court grants summary judgment to the CIA on Count Eight in No. 11-444. See
supra Part III.E.2.
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• The Court grants summary judgment to the CIA on Count Nine in No. 11-444. See supra
Part III.E.1.
• The Court grants summary judgment to the CIA on Count Ten in No. 11-444. See supra
Part III.E.4.
• The Court denies summary judgment to the CIA on Count Seventeen in No. 11-444. The
Court denies summary judgment to the CIA on Count Seventeen with respect to (1) the
CIA’s withholding of responsive information under FOIA Exemption 3 and the CIA Act,
50 U.S.C. § 403g, see supra Part III.H.1; (2) the CIA’s withholding of responsive
information under FOIA Exemption 5, see supra Part III.J.1(a), III.J.2(a); and (3) the
CIA’s refusal to produce responsive records in an electronic format, see supra Part
III.K.1.
• The Court denies summary judgment to the CIA on Count Eighteen in No. 11-444. The
Court denies summary judgment to the CIA on Count Eighteen with respect to (1) the
adequacy of its search efforts, see supra Part III.D.1; (2) the CIA’s withholding of
responsive information under FOIA Exemption 3 and the CIA Act, 50 U.S.C. § 403g, see
supra Part III.H.1; (3) the CIA’s withholding of responsive information as “non
responsive,” see id.; and (4) the CIA’s refusal to produce responsive records in an
electronic format, see supra Part III.K.1.
• The Court grants in part and denies in part summary judgment to the CIA on Count
Twenty in No. 11-444. The Court denies summary judgment to the CIA on Count
Twenty regarding the adequacy of its search efforts, see supra Part III.D.2, and grants
summary judgment to the CIA on Count Twenty in all other respects.
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• The Court grants summary judgment to the CIA on Count Twenty-One in No. 11-444.
See supra note 5.
Civil Action No. 11-445
• The Court grants in part and denies in part summary judgment to the CIA on Count One
in No. 11-445. The Court denies summary judgment to the CIA with respect to (1) the
CIA’s withholding of responsive information under FOIA Exemption 3 and the CIA Act,
50 U.S.C. § 403g, see supra Part III.H.1; (2) the CIA’s withholding of responsive
information under FOIA Exemption 5, see supra Parts III.J.1(a), III.J.2(a); and (3) the
CIA’s withholding of document C05366473 pursuant to Exemption 1, see supra Part
III.F.1. The Court grants summary judgment to the CIA in all other respects.
• The Court grants in part and denies in part summary judgment to the CIA on Count Two
in No. 11-445. The Court denies summary judgment to the CIA with respect to (1) the
CIA’s withholding of responsive information under FOIA Exemption 3 and the CIA Act,
50 U.S.C. § 403g, see supra Part III.H.1; (2) the CIA’s withholding of responsive
information under FOIA Exemption 5, see supra Parts III.J.1(a), III.J.2(a); and (3) the
CIA’s withholding of eight documents pursuant to Exemption 1: C01499710,
C05403192, C05403194, C05403197, C05403198, C05403199, C05403203, and
C05549838, see supra Part III.F.1. The Court grants summary judgment to the CIA in all
other respects.
• The Court grants in part and denies in part summary judgment to the CIA on Count Three
in No. 11-445. The Court denies summary judgment to the CIA with respect to (1) the
CIA’s withholding of responsive information under FOIA Exemption 3 and the CIA Act,
50 U.S.C. § 403g, see supra Part III.H.; and (2) the CIA’s withholding of responsive
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information under FOIA Exemption 5, see supra Parts III.J.1(a), III.J.2(a). The Court
grants summary judgment to the CIA in all other respects.
• The Court grants in part and denies in part summary judgment to the DIA on Count Five
in No. 11-445. The Court denies summary judgment to the DIA with respect to the
DIA’s withholding of responsive information under FOIA Exemption 5, see supra Parts
III.J.1(b), III.J.2(b), and the Court grants summary judgment to the DIA in all other
respects.
• The Court denies summary judgment to the ODNI on Count Six in No. 11-445. See
supra Parts III.H.3, III.J.1(b), III.J.2(b).
• The Court grants in part and denies in part summary judgment to the CIA on Count
Seven in No. 11-445. The Court denies summary judgment with respect to (1) the CIA’s
withholding of thirteen documents pursuant to FOIA Exemption 2: C05520233,
C05520227, C05520231, C05520236, C05520235, C05520226, C05520181, C05520232,
C05520213, C05520218, C05520223, C05520228, and C05520234, see supra Part III.G;
(2) the CIA’s withholding of responsive information under FOIA Exemption 3 and the
CIA Act, 50 U.S.C. § 403g, see supra Part III.H.1; and (3) the CIA’s withholding of
responsive information under FOIA Exemption 5, see supra Parts III.J.1(a), III.J.2(a).
The Court grants summary judgment to the CIA in all other respects.
• The Court grants in part and denies in part summary judgment to the DOJ on Count Eight
in No. 11-445. The Court denies summary judgment to the DOJ with respect to the
portions of Documents 3 and 13 that were publicly disclosed in the documents submitted
by the plaintiff. See supra Part III.J.2(c). The Court finds the plaintiff’s challenge to the
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DOJ’s withholding of Document 11 to be moot. Id. The Court grants summary
judgment to the DOJ in all other respects.
• The Court grants in part and denies in part summary judgment to the State Department in
Count Nine in No. 11-445. The Court denies summary judgment to the State Department
with respect to (1) the adequacy of its search efforts, see supra Part III.D.3; and (2) the
State Department’s refusal to produce responsive records in an electronic format, see
supra Part III.K.2. The Court grants summary judgment to the DOJ in all other respects.
• The Court denies summary judgment to the NSA on Count Ten in No. 11-445. See supra
Part III.D.4.
• The Court grants summary judgment to the CIA on Count Twelve in No. 11-445. See
supra note 3.
• The Court denies summary judgment to the CIA on Count Thirteen in No. 11-445. The
Court denies summary judgment to the CIA on Count Thirteen with respect to (1) the
CIA’s withholding of responsive information under FOIA Exemption 3 and the CIA Act,
50 U.S.C. § 403g, see supra Part III.H.1; (2) the CIA’s withholding of responsive
information under FOIA Exemption 5, see supra Part III.J.1(a), III.J.2(a).
• The Court grants summary judgment to the plaintiff on Count Twenty in No. 11-445. See
supra Part III.C.2.
The Court directs the parties to jointly file, within twenty days of this decision, the
following: (1) a status report that sets forth a list of the records that remain in dispute, in light of
the Memorandum Opinion accompanying this Order, and that identifies each such disputed
record by a Bates number, or other unique identifier, and by citation to the particular page(s) of
the Vaughn index where the disputed record is described; and (2) a proposed briefing schedule
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for any further proceedings in this matter, including deadlines for the submission of any renewed
dispositive motions, supplementary Vaughn indices, or supplementary declarations.
An appropriate Order accompanies this Memorandum Opinion.
Date: August 15, 2013
/s/ Beryl A. Howell
BERYL A. HOWELL
United States District Judge
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