Freedom Watch, Inc. v. Central Intelligence Agency

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
FREEDOM WATCH, INC.,
Plaintiff,
v.
Civil Action No. 12-0721 (ESH)
CENTRAL INTELLIGENCE AGENCY, et
al.,
Defendants.
MEMORANDUM OPINION
Plaintiff Freedom Watch, Inc., has sued the Central Intelligence Agency (“CIA”), the
National Security Agency (“NSA”), the Department of Defense (“DoD”), and the Department of
State (“State”), alleging that defendants have violated the Freedom of Information Act, 5 U.S.C.
§§ 552 et seq. (“FOIA”). (Complaint, May 2, 2012 [Dkt. No. 1] (“Compl.”).) Before the Court
is defendants’ Motion to Dismiss (Aug. 17, 2012 [Dkt. No. 6] (“Defs. Mot.”)), plaintiff’s
opposition (Aug. 31, 2012 [Dkt. No. 9] (“Pl. Opp’n”)), and defendants’ reply (Sept. 10, 2012
[Dkt. No. 10] (“Defs. Reply”)). For the reasons stated, the Court will grant defendants’ motion.
BACKGROUND
In April 2012, Freedom Watch sent identical FOIA requests to defendants “seeking
records about leaked information.” (Compl. ¶ 4.) The “crux of plaintiff’s FOIA request was the
‘leaked’ information that was obtained . . . by the New York Times in their two articles of March
17 and March 19, 2012.” (Pl. Opp’n at 12.) Freedom Watch’s request must be duplicated in its
entirety. “Specifically, plaintiff sought:
. . . all correspondence, memoranda, documents, reports, records, statements,
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audits, lists of names, applications, diskettes, letters, expense logs and receipts,
calendar or diary logs, facsimile logs, telephone records call sheets, tape
recordings, video/movie recordings, notes, examinations, opinions, folders, files,
books, manuals, pamphlets, forms, drawings, charts, photographs, electronic mail,
and other documents and things (hereinafter, “information”) that refer or relate to
the following in any way, within ten (10) business days as set forth below:
1) Any and all information that refers or relates to the New York Times
article entitled “U.S. Assessment of Iranian Risks Took Tricky Path” by
James Risen on Sunday, March 18, 2012;
2) Any and all information that refers or relates to the New York Times
article “U.S. Simulation Forecasts Perils of Strike at Iran” by Mark
Mazzetti and Thorn Shanker on Tuesday, March 20, 2012;
3) Any and all information that refers or relates to the Foreign Policy
article entitled “Israel’s Secret Staging Ground” by Mark Perry on March
28;
4) All information “briefed on the results” of any war games or other
simulations “leaked” or otherwise provided about the 2010 National
Intelligence Estimate, as mentioned in the NY Times article “U.S.
Assessment of Iranian Risks Took Tricky Path” by James Risen
on Sunday, March 18, 2012; bombers, refueling aircraft, and precision
missiles doing damage to the Iranian nuclear program;
11) Any and all information “leaked” about the results of testing internal
military communications;
12) Any and all information “leaked” about American officials saying that
they believe Israel would probably give the United States little or no
warning should Israeli officials make the decision to strike Iranian nuclear
sites;
13) Any and all information “leaked” about experts predicting that Iran
would try to carefully manage the escalation after an Israeli first strike;
14) Any and all information “leaked” about experts believing that Iran
would use an Israeli first strike as rationale for attacking the United States;
15) Any and all information “leaked” about military specialists who have
assessed the potential ramification of an Israeli attack;
16) Any and all information “leaked” about military specialists who claim
it is not possible to predict how Iran will react in the heat of conflict;
17) Any and all information “leaked” about Israeli intelligence estimates
backed by academic studies;
18) Any and all information “leaked” about the results of counterstrike by
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the Islamic Republic of Iran after an attack by Israel;
19) Any and all information “leaked” about the possibility of Israel
striking the Islamic Republic of Iran within the next year;
20) Any and all information “leaked” about top administration officials
saying that Iran has not decided to pursue a nuclear weapon;
21) Any and all information “leaked” about American intelligence
officials expressing confidence in the spy agencies’ assertions that Iran has
not decided to pursue a nuclear weapon;
22) Any and all information “leaked” about former intelligence agents
assessing the Islamic Republic of Iran’s ambition for a nuclear weapon;
23) Any and all information “leaked” discussing the difficulty of obtaining
intelligence from the Islamic republic of Iran;
24) Any and all statements made by the Islamic Republic of Iran saying
that its nuclear program is for peaceful civilian purposes;
25) Any and all information “leaked” about American intelligence
agencies and the International Atomic Energy Agency picking up
evidence in recent years that some Iranian research activities maybe be
weapons-related continuing from 2003;
26) Any and all information “leaked” about Mossad’s agreement with
American intelligence assessments;
27) Any and all information “leaked” about American intelligence
agencies monitoring Iranian officials and scientists and nuclear sites in
order to determine whether the weapons program has been restarted;
28) Any and all information “leaked” about how collecting independent
human intelligence has been the most difficult task for American
intelligence;
29) Any and all information “leaked” about technological mistake by a
CIA agency officer in 2004 that put a whole network of Iranian agents in
jeopardy;
30) Any and all information “leaked” about the Mujadhadeen Khalq or
M.E.K. which is based in Iraq;
31) Any and all information “leaked” about the United States and Israel
sharing information on the Islamic Republic of Iran;
32) Any and all information “leaked” about the United States placing
clandestine ground sensors which can detect electromagnetic signals or
radioactive emissions that could be linked to nuclear activity near suspect
Iranian facilities;
33) Any and all information “leaked” or otherwise provided to the media
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about eavesdropped or otherwise intercepted telephone conversations of
Iranian officials discussing their nuclear program, as mentioned in the NY
Times article “U.S. Assessment of Iranian Risks Took Tricky Path” by
James Risen on Sunday, March 18, 2012;
34) Any and all information “leaked” or otherwise provided to the media
about Shahram Amiri, the Iranian scientist who defected from Iran in 2009
and then went back to Iran in 2010, as mentioned in the NY Times article
“U.S. Assessment of Iranian Risks Took Tricky Path” by James Risen on
Sunday, March 18, 2012;
35) Any and all information “leaked” or otherwise provided to the media
about shared intelligence between the United States and Israel, as
mentioned in the NY Times article “U.S. Assessment of Iranian Risks
Took Tricky Path” by James Risen on Sunday, March 18, 2012;
36) Any and all information “leaked” or otherwise provided to the media
about intercepted communications of Iranian officials discussing their
nuclear program, as mentioned in the NY Times article “U.S. Assessment
of Iranian Risks Took Tricky Path” by James Risen on Sunday, March 18,
2012;
37) Any and all information “leaked” or otherwise provided to the media
about Operation Internal Lock, as mentioned in the NY Times article
“U.S. Simulation Forecasts Perils of Strike at Iran” by Mark Mazzetti and
Thorn Shanker on Tuesday, March 20, 2012;
38) Any and all information “leaked” or otherwise provided to the media
that was previously “classified” information regarding the Islamic
Republic of Iran;
39) Any and all information “leaked” or otherwise provided to the media
that was previously “classified” information regarding the country of
Israel;
40) Any and all information “leaked” or otherwise provided to the media
that was previously “classified” information regarding Israel’s possible
attack or other military strike on the country of the Islamic Republic of
Iran;
41) Any and all information “leaked” or otherwise provided to the media
about Israel’s staging grounds in Azerbaijan for a possible attack on Iran
or for any other reason;
42) Any and all information “leaked” or otherwise provided to the media
about any possible attack or measure utilized by either the United States or
Israel to prevent Iran from obtaining the capability to build or otherwise
obtain a nuclear weapon;
43) Any and all information “leaked” or otherwise provided to the media
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about the sources of the intelligence that was released to the media;
44) Any and all information linking the Obama Administration to the
release of any classified information;
45) Any and all information linking the State Department to the release of
any classified information;
46) The names of the persons, employers and job titles of those who
“leaked” the above information to the media;
47) Communications with the White House and/or Office of the President
and/or Vice President that refer or relate in any way to the “leaked”
information and/or the reasons for “leaking” the information;
48) Any and all information that refer or relate to the decision to “leak”
the above previously classified information;
49) Any and all information that refers or relates to government agencies
deciding to investigate who “leaked” the above previously classified
information.
(Compl. ¶ 4 (some internal quotation marks omitted).) “Plaintiff requested a fee waiver and
expedited processing in accordance with the procedures set forth under the regulations of each
agency.” (Id. ¶ 5.)
Defendants denied Freedom Watch’s FOIA requests. The CIA responded in writing on
April 12, 2012, and denied plaintiff’s request for expedited processing; it wrote again on April
30, 2012, stating that it could neither confirm nor deny the existence or nonexistence of records
responsive to plaintiff’s request. (See Defs. Mot., Ex. A (“Giuffrida Decl.”) ¶¶ 6–7; see also
Giuffrida Decl., Att. 2 (CIA’s April 12, 2012 response); id., Att. 3 (CIA’s April 30, 2012
response).) The CIA advised Freedom Watch of its right to an administrative appeal if it
responded “within 45 days.” (Id.) Freedom Watch did not appeal the CIA’s decision and the
time for appeal has passed. (See Giuffrida Decl. ¶ 8.)
The NSA responded in writing on April 13, 2012, and denied plaintiff’s request for
documents, stating that the existence or non-existence of the materials plaintiff requested is
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classified and exempt from disclosure. (See Defs. Mot., Ex. B (“Phillips Decl.”) ¶¶ 4–5; see also
Phillips Decl., Att. 2 (NSA’s response).) The NSA advised Freedom Watch that it had 60 days
to appeal. (Id. at 2.) Freedom Watch did not appeal the NSA’s decision and the time for appeal
has passed. (See Phillips Decl. ¶ 7.)
The DoD responded in writing on April 19, 2012, stating that the document request was
not a proper FOIA request because it did not reasonably describe the records sought. (See Defs.
Mot., Ex. C (“Kammer Decl.”) ¶¶ 3–4; see also Kammer Decl., Att. 2 (DoD’s response).) The
DoD advised Freedom Watch that it had 60 days to appeal. (Id. at 1–2.) Freedom Watch did not
appeal the DoD’s decision and the time for appeal has passed. (Kammer Decl. ¶ 4.)
Finally, State responded in writing on April 23, 2012, and advised Freedom Watch that it
could not process the request because Freedom Watch failed to describe the records sought in a
way that someone familiar with State records and programs could locate them. (See Defs. Mot.,
Ex. D (“Walter Decl.”) ¶ 3; see also Walter Decl., Att. 2 (State’s response).1) State instructed
Freedom Watch to “narrow the scope of [its] request.” (Id. at 2.) State also stated that, if
Freedom Watch “wish[ed] to pursue this request, [it might] ask for expedited treatment” if or
when it sent State “a new request, and suppl[ied] the additional information necessary to make
[its] request valid.” (Id. at 3.)
1
Plaintiff alleges that State “neither responded nor claimed any exemptions to [its] FOIA
request.” (Plaintiff’s Partial Motion for Summary Judgment Against Defendant Department of
State, July 20, 2012 [Dkt. No. 4] at 1; see also Plaintiff’s Reply in Support of Partial Summary
Judgment Against Defendant Department of State, Aug. 24, 2012 [Dkt. No. 8] at 1 (“Plaintiff did
not, and has not received any correspondence from Defendant Department of State and has filed
an affidavit to that effect.”).) In response, defendants have produced evidence to show that
State’s response to Freedom Watch’s FOIA request was properly mailed. (See Walter Decl. ¶ 3.)
However, because the Court will grant defendants’ motion to dismiss with regard to State (see
Section II, supra), the Court need not address the issue and will deny plaintiff’s motion for
partial summary judgment as moot.
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Freedom Watch sued defendants on May 2, 2012, and defendants have have moved to
dismiss pursuant to Fed. R. Civ. P. 12(b)(6).
ANALYSIS
I. EXHAUSTION OF ADMINISTRATIVE REMEDIES
A FOIA action is subject to dismissal for “failure to state a claim upon which relief can
be granted,” Fed. R. Civ. P. 12(b)(6), when a plaintiff has failed to exhaust its administrative
remedies. Hidalgo v. FBI, 344 F.3d 1256, 1258, 1260 (D.C. Cir. 2003). The FOIA “statutory
scheme ‘requires each requestor to exhaust administrative remedies,’” id. at 1259 (quoting Sinito
v. U.S. Dep’t of Justice, 176 F.3d 512, 516 (D.C. Cir. 1999)), and “‘[c]ourts have consistently
confirmed that the FOIA requires exhaustion of this appeal process before an individual may
seek relief in the courts.’” Id. (quoting Oglesby v. U.S. Dep’t of the Army, 920 F.2d 57, 61–62
(D.C. Cir. 1990) (collecting cases)); see 5 U.S.C. § 552(a)(6).
In their responses to Freedom Watch’s FOIA requests, the CIA, the NSA, and the DoD
informed Freedom Watch of its right to appeal and the process by which such appeals could be
pursued. (See Giuffrida Decl., Att. 3 at 1 (CIA’s April 30, 2012 response); Phillips Decl., Att. 2
at 2 (NSA’s response); Kammer Decl., Att. 2 at 1–2 (DoD’s response).) The declarations from
the CIA, the NSA, and the DoD confirm that those agencies did not receive appeals (see
Giuffrida Decl. ¶ 8; Phillips Decl. ¶ 7; Kammer Decl. ¶ 4.), and, more importantly, Freedom
Watch does not deny that it did not seek appeals of their decisions. (Pl. Opp’n at 7–9.) Rather,
Freedom Watch argues only that “[a] plaintiff need not ‘exhaust administrative remedies that
would be futile’ to exhaust.” (Id. at 7 (quoting Singh v. Ashcroft, 362 F.3d 1164, 1160 (9th Cir.
2004).)
Even assuming, however, that the futility exception to the exhaustion requirement that
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applies in immigration cases such as Singh has applicability in the FOIA context,2 Freedom
Watch has failed to demonstrate the futility of appealing the CIA’s, the NSA’s, and the DoD’s
decisions. The futility exception applies only if “following the administrative remedy would be
futile because of certainty of an adverse decision.” Randolph-Sheppard Vendors of Am. v.
Weinberger, 795 F.2d 90, 105 (D.C. Cir. 1986) (internal quotation marks and citation omitted).
Freedom Watch has fallen far short of this demanding standard.
It is simply not sufficient to argue that “[i]t was apparent from the systematic and
summarily [sic] denial of [p]laintiff’s FOIA requests that [d]efendants were unwilling to disclose
even a portion of the documents and other information that [p]laintiff had requested.” (Pl. Opp’n
at 7.) Moreover, the CIA’s, the NSA’s, and the DoD’s responses are anything but summary
denials. Each agency’s response sets forth in significant detail the reasons for the agency’s
particular action. The CIA stated that it had “completed a thorough review of [Freedom
Watch’s] request and [had] determined in accordance with section 3.6(a) of Executive Order
13526[ that] the CIA can neither confirm nor deny the existence or nonexistence of” responsive
2
Freedom Watch has cited no caselaw establishing or addressing a futility exception to the
exhaustion requirement in FOIA cases. Moreover, binding Circuit precedent could not be
clearer: exhaustion of administrative remedies “is a mandatory prerequisite to a lawsuit under
FOIA.” Wilbur v. CIA, 355 F.3d 675, 676 (D.C. Cir. 2004) (emphasis added, internal quotation
marks and citation omitted). But see Armstrong v. Bush, 807 F. Supp. 816, 819 (D.D.C. 1992)
(“Defendants also contend that the [p]laintiffs have not exhausted their administrative remedies
under FOIA. But it is well established that administrative exhaustion is not required where it
would be ‘futile because of certainty of an adverse decision.’” (quoting James v. U.S. Dep’t of
Health & Human Servs., 824 F.2d 1132, 1138 (D.C. Cir. 1987))). Even to the extent that
Armstrong should be followed, however, it is of little help to plaintiffs here. In Armstrong, the
Court concluded that exhaustion would be futile because defendants had consistently argued that
the kinds of records sought were not subject to FOIA. Id. Here, by contrast, as described below
defendants responded to Freedom Watch’s FOIA requests with detailed explanations of why,
pursuant to agency determinations and in light of the nature of Freedom Watch’s requests, they
were denying them. Defendants did not assert the kind of categorical bar to disclosure that
caused the Court in Armstrong to conclude that exhaustion would be futile. Id.8
records because “[t]he fact of the[ir] existence or nonexistence . . . is currently and properly
classified.” (Giuffrida Decl., Att. 3 at 1.) The CIA therefore denied Freedom Watch’s request
“pursuant to FOIA exemptions (b)(1) and (b)(3).” (Id.) The NSA’s response was similar and no
less detailed. (See Phillips Decl., Att. 2 at 1–2.) The DoD, on the other hand, stated that it was
denying Freedom Watch’s request because it did “not reasonably describe the records that”
Freedom Watch sought, such that it was “not a proper FOIA request.” (Kammer Decl., Att. 2 at
1.) The DoD, noting that “[t]he FOIA does not require agencies to conduct research in order to
respond to requests,” stated in particular that Freedom Watch had “attached multiple newspaper
articles for us to try to determine records [Freedom Watch sought] for several of the 49 items in
[Freedom Watch’s] request,” and that the DoD did “not consider that a reasonable description of
records.” (Id. (“The other items in your request are not reasonably described as well. . . .
Descriptive information may be provided in these ways . . . .”).) Such responses give no grounds
for arguing that exhaustion of administrative remedies would be futile. Accordingly, the Court
will grant defendants’ motion to dismiss the CIA, the NSA, and the DoD for failure to exhaust
administrative remedies.3
II. PROPER FOIA REQUEST
“Two requirements must be met in order for a FOIA request to be proper: (1) the request
must ‘reasonably’ describe the records sought, and (2) it must be ‘made in accordance with
published rules stating the time, place, fees (if any), and procedures to be followed.’” Lowe v.
3
In their motion to dismiss, defendants argue failure to exhaust administrative remedies as to the
CIA and the NSA only. (See Defs. Mot. at 7; Defs. Reply at 2 n.1.) However, the Court takes
note of the fact that, as described above, the DoD also informed Freedom Watch of its right to an
appeal—a right which Freedom Watch did not choose to exercise. Regardless, the Court would
also grant defendants’ motion to dismiss as to the DoD for the reasons set forth in Section II,
infra.
9
DEA, No. 06-cv-1133, 2007 WL 2104309, at *4 (D.D.C. July 22, 2007) (quoting (5 U.S.C. §
552(a)(3)(A)). “Omitting one of the two threshold requirements for a proper FOIA request . . .
warrants dismissal.” Id. at *5 (citing Kessler v. United States, 899 F. Supp. 644, 645 (D.D.C.
1995)).
With regard to the first requirement, records are reasonably described “if a professional
employee of the agency familiar with the subject matter can locate the records with a ‘reasonable
amount of effort.’” Armstrong v. Bush, 139 F.R.D. 547, 553 (D.D.C. 1991) (quoting Am. Fed’n
of Gov’t Employees, Local 2782 v. U.S. Dep’t of Commerce, 632 F. Supp. 1272, 1278 (D.D.C.
1986), aff’d, 907 F.2d 203 (D.C. Cir. 1990)); accord Keys v. Dep’t of Homeland Sec., No. 08-cv-
0726, 2009 WL 614755, at *5 (D.D.C. March 10, 2009). “An agency need not honor a [FOIA]
request that requires ‘an unreasonably burdensome search.’” Am. Fed’n of Gov’t Employees,
Local 2782, 907 F.2d at 209 (quoting Goland v. CIA, 607 F.2d 339, 353 (D.C. Cir. 1978)). “The
rationale for this rule is that FOIA was not intended to reduce government agencies to full-time
investigators on behalf of requestors.” Assassination Archives & Research Ctr., Inc. v. CIA, 720
F. Supp. 217, 219 (D.D.C. 1989).
The Court concludes that Freedom Watch’s complaint demonstrates on its face that its
FOIA requests are virtually incomprehensible and are “so broad as to impose an unreasonable
burden upon the agency.” Am. Fed’n of Gov’t Employees, Local 2782, 907 F.2d at 209. “They
would require the agency to locate, review, redact, and arrange for inspection a vast quantity of
material.” Id. This might include anything “relating to” the individual nations referenced in the
two New York Times articles and the Foreign Policy article, which include Iran, Israel, Iraq,
North Korea, Russia, Azerbaijan, and others. Freedom Watch’s demand for “any and all
information ‘leaked’ or otherwise provided about a draft version of the 2010 National
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Intelligence Estimate” (Compl. ¶ 4) is extraordinarily broad standing alone; that it is only one of
49 similarly vague inquiries confirms the unreasonable and burdensome nature of Freedom
Watch’s FOIA requests. “[I]t is the requester’s responsibility to frame requests with sufficient
particularity to ensure that searches are not unreasonably burdensome, and to enable the
searching agency to determine precisely what records are being requested.” Assassination
Archives & Research Ctr., 720 F. Supp. at 219; see Marks v. U.S. Dep’t of Justice, 578 F.2d 261,
263 (9th Cir. 1978) (courts have “held that broad, sweeping requests lacking specificity are not
permissible” (collecting cases)); accord Dale v. IRS, 238 F. Supp. 2d 99, 104 (D.D.C. 2002);
Keys, 2009 WL 614755, at *5. Freedom Watch has not fulfilled its responsibility here.
Moreover, the Court agrees with defendants that Freedom Watch’s request, with its
references in 42 items to alleged “leaks”—a term that Freedom Watch does not define—would
impermissibly require defendants “to undertake an investigation and then draw legal conclusions
based on the investigation’s findings before they would be in a position to determine whether
certain records relate to unauthorized [and possibly unlawful] ‘leaks.’” (Defs. Mot. at 11 n.3.)
In opposing defendants’ motion, for example, Freedom Watch states that “[i]f no crime has been
committed and previously classified information has now been declassified for release, then
[p]laintiff’s FOIA requests should be responded to with the now non-exempt documentation and
information.” (Pl. Opp’n at 2.) It is thus evident that Freedom Watch intends for federal
employees to make complicated determinations about whether crimes have been committed.
While “[t]he central purpose of FOIA is to ‘open[] up the workings of government to public
scrutiny,’” Stern v. FBI, 737 F.2d 84, 88 (D.C. Cir. 1984) (second alteration in the original)
(quoting McGehee v. CIA, 697 F.2d 1095, 1108 (D.C. Cir. 1983)), it not intended to force a
federal agency to undertake grand-jury style investigations. Assassination Archives & Research
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Ctr., Inc., 720 F. Supp. at 219.
Freedom Watch’s FOIA requests are identical, and plaintiff cannot overcome the
requests’ deficiencies by merely arguing that they are “specific enough.” (Pl. Opp’n at 12.)
Accordingly, the Court’s conclusion that Freedom Watch’s requests do not “reasonably
describe[]” the records that it seeks, 5 U.S.C. § 552(a)(3)(A)(i), justifies the dismissal of State
and provides an independent basis for dismissing the CIA, the NSA, and the DoD.
CONCLUSION
Freedom Watch has admitted that it remains “willing to work with [d]efendants in order
to further refine the portion of the FOIA request that [d]efendants have not been able to figure
out.” (Pl. Opp’n at 13.) Clearly, this Court is not the proper venue for that process. Plaintiff’s
recourse remains with the agencies. The Court will grant defendants’ motion to dismiss. A
separate Order accompanies this Memorandum Opinion.
/s/
ELLEN SEGAL HUVELLE
United States District Judge
Date: October 5, 2012
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