Leopold v. Central Intelligence Agency

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JASON LEOPOLD, et al.,
Plaintiffs,
v. Civil Action No. 14-1056 (JEB)
CENTRAL INTELLIGENCE AGENCY,
Defendant.
MEMORANDUM OPINION
Like a multigenerational soap opera, the persistent controversy swirling around the
Central Intelligence Agency’s rendition, detention, and interrogation program has now spanned
two presidential administrations, numerous congressional sessions, and the comings and goings
of six CIA directors. In one of its most recent episodes, the CIA, after finding itself in the
binocular crosshairs of the Senate Select Committee on Intelligence, allegedly flipped the lenses
around to spy back on its Congressional overseers. When word spread that CIA officials had
purportedly hacked into SSCI’s computers – computers the CIA had lent SSCI at a secure CIA
facility – interested ears perked up. Journalist Jason Leopold and academic Ryan Shapiro filed a
Freedom of Information Act request in the hope of getting the scoop on this latest installment.
After waiting two months without receiving a substantive response from the agency, Plaintiffs
filed this suit to compel one. Once the matter was in litigation, the CIA released some
documents to Plaintiffs and filed a Motion for Summary Judgment, arguing that it had fulfilled
its obligations under FOIA. Plaintiffs oppose, arguing only that the CIA’s search was
inadequate. The Court sides with the agency, concluding that it has satisfactorily performed
what the statute demands.
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I. Background
This dispute, like most FOIA cases, begins with a request for documents. On April 12,
2014, Plaintiffs Leopold and Shapiro sent a FOIA request to the CIA listing five distinct
categories of information. See Compl., ¶¶ 1-2, 16. Their central focus was a congressional
inquiry into the CIA’s alleged torture program conducted by the Senate Select Committee on
Intelligence. See id., ¶ 16. According to Plaintiffs, as part of that inquiry, the “CIA and SSCI
reached an agreement which would permit SSCI staffers to review CIA documents at a secure
CIA facility in Virginia. A written agreement or series of agreements specified the parameters
regarding the staffers’ access to CIA documents.” MSJ, Attach. 1 (Declaration of Mary E.
Wilson), Exh. B (FOIA Request) at 2. After getting the logistics nailed down, a disagreement
arose between SSCI and the CIA. The agency believed that SSCI staffers had illegally removed
internal CIA documents from the secure facility – most specifically, a document or series of
documents referred to as the “Panetta Review.” Id. SSCI, for its part, believed that the CIA had
accessed, without authorization, the computers its staffers had been provided. See id.
To shed more light on this situation, Plaintiffs requested five broad categories of records,
consisting essentially of: (1) “written agreements and correspondence” between SSCI and the
CIA regarding the former’s access to CIA facilities and documents; (2) “records documenting
any CIA investigation into the search of SSCI’s computers at the secure facility in Virginia,”
including any referrals or other communications between the CIA and the Justice Department;
(3) records related to CIA and DOJ investigations into SSCI’s alleged removal of the “Panetta
Review”; (4) material pertaining to a CIA contract that had purportedly been awarded to a
company to “review[] records relating to the CIA’s former Detention and Interrogation
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Program”; and (5) “talking points,” in both draft and final form, touching on this dispute between
the CIA and SSCI. See Compl., ¶ 16.
Having received no substantive response after two months had passed, in June 2014,
Plaintiffs filed suit, asking this Court to “[o]rder Defendant to process the requested records
without further delay and release all nonexempt portions” of those records. See Compl. at 6.
Over the ensuing year, Defendant completed the search and began determining whether the
documents it had turned up were responsive to Plaintiffs’ request. See Minute Order of Jan. 7,
2015; ECF Nos. 13 (CIA Status Report of 2/24/15), 14 (CIA Status Report of 4/9/15), 15 (CIA
Status Report of 5/26/15). On July 20, 2015, it produced 82 documents (12 released in full, 70 in
part) and prepared a preliminary Vaughn Index indicating which FOIA exemptions it had relied
on in withholding in full the remaining 231 responsive documents. See ECF No. 17 (CIA Status
Report of 7/16/15); Minute Order of Aug. 19, 2015; Wilson Decl., ¶ 7. The CIA then filed its
Motion for Summary Judgment, arguing that it had met all of its obligations under FOIA.
Plaintiffs limited their Opposition to contesting only the adequacy of the agency’s search efforts.
In addressing the CIA’s Motion, therefore, the Court will focus exclusively on that narrow issue.
II. Legal Standard
Summary judgment may be granted if “the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Holcomb v.
Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). A fact is “material” if it is capable of affecting the
substantive outcome of the litigation. See Liberty Lobby, 477 U.S. at 248; Holcomb, 433 F.3d at
895. A dispute is “genuine” if the evidence is such that a reasonable jury could return a verdict
for the nonmoving party. See Scott v. Harris, 550 U.S. 372, 380 (2007); Liberty Lobby, 477
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U.S. at 248; Holcomb, 433 F.3d at 895. “A party asserting that a fact cannot be or is genuinely
disputed must support the assertion” by “citing to particular parts of materials in the record” or
“showing that the materials cited do not establish the absence or presence of a genuine dispute,
or that an adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P.
56(c)(1). The moving party bears the burden of demonstrating the absence of a genuine issue of
material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
FOIA cases typically and appropriately are decided on motions for summary judgment.
See Brayton v. Office of U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011). In a FOIA case, a
court may grant summary judgment based solely on information provided in an agency’s
affidavits or declarations when they “describe the justifications for nondisclosure with
reasonably specific detail, demonstrate that the information withheld logically falls within the
claimed exemption, and are not controverted by either contrary evidence in the record nor by
evidence of agency bad faith.” Larson v. Dep’t of State, 565 F.3d 857, 862 (D.C. Cir. 2009)
(citation omitted). Such affidavits or declarations “are accorded a presumption of good faith,
which cannot be rebutted by purely speculative claims about the existence and discoverability of
other documents.” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (internal
quotation marks omitted). “Unlike the review of other agency action that must be upheld if
supported by substantial evidence and not arbitrary or capricious, the FOIA expressly places the
burden ‘on the agency to sustain its action’ and directs the district courts to ‘determine the matter
de novo.’” Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 755
(1989) (quoting 5 U.S.C. § 552(a)(4)(B)).
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III. Analysis
Congress enacted FOIA “to pierce the veil of administrative secrecy and to open agency
action to the light of public scrutiny.” Dep’t of Air Force v. Rose, 425 U.S. 352, 361 (1976)
(citation 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.” John Doe Agency v. John Doe Corp., 493 U.S. 146,
152 (1989) (citation omitted). The statute provides that “each agency, upon any request for
records which (i) reasonably describes such records and (ii) is made in accordance with
published rules . . . shall make the records promptly available to any person.” 5 U.S.C.
§ 552(a)(3)(A). Consistent with this statutory mandate, federal courts have jurisdiction to order
the production of records that an agency improperly withholds. See 5 U.S.C. § 552(a)(4)(B);
Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 755 (1989).
“Unlike the review of other agency action that must be upheld if supported by substantial
evidence and not arbitrary or capricious, the FOIA expressly places the burden ‘on the agency to
sustain its action’ and directs the district courts to ‘determine the matter de novo.’” Reporters
Comm., 489 U.S. at 755 (quoting 5 U.S.C. § 552(a)(4)(B)). “At all times courts must bear in
mind that FOIA mandates a ‘strong presumption in favor of disclosure’ . . . .” Nat’l Ass’n of
Home Builders v. Norton, 309 F.3d 26, 32 (D.C. Cir. 2002) (quoting Dep’t of State v. Ray, 502
U.S. 164, 173 (1991)).
Although the CIA’s Motion justifies both the adequacy of its search and the exemptions it
relied on in withholding various documents, Plaintiffs dispute only the former point. The Court
first discusses the legal standard governing the adequacy of searches and articulates the agency’s
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justification for the conduct of its search. It thereafter examines in sequence Plaintiffs’
objections to the thoroughness of the search.
A. Standard and Explanation of Search
“An agency fulfills its obligations under FOIA if it can demonstrate beyond material
doubt that its search was ‘reasonably calculated to uncover all relevant documents.’” Valencia-
Lucena v. Coast Guard, 180 F.3d 321, 325 (D.C. Cir. 1999) (quoting Truitt v. Dep’t of State, 897
F.2d 540, 542 (D.C. Cir. 1990)); see also Steinberg v. Dep’t of Justice, 23 F.3d 548, 551 (D.C.
Cir. 1994). “[T]he issue to be resolved is not whether there might exist any other documents
possibly responsive to the request, but rather whether the search for those documents was
adequate.” Weisberg v. Dep’t of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984).
The adequacy of an agency’s search for documents requested under FOIA “is judged by a
standard of reasonableness and depends, not surprisingly, upon the facts of each case.” Id. To
meet its burden, the agency may submit affidavits or declarations that explain the scope and
method of its search “in reasonable detail.” Perry v. Block, 684 F.2d 121, 127 (D.C. Cir. 1982).
The affidavits or declarations should “set[] forth the search terms and the type of search
performed, and aver[] that all files likely to contain responsive materials (if such records exist)
were searched.” Oglesby v. Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir. 1990). Without contrary
evidence, such affidavits or declarations are sufficient to show that an agency complied with
FOIA. See id. On the other hand, if the record “leaves substantial doubt as to the sufficiency of
the search, summary judgment for the agency is not proper.” Truitt, 897 F.2d at 542.
In this case, Defendant attached to its Motion a declaration from Mary E. Wilson, who, as
of November 2015, served as the CIA’s acting “Information Review Officer.” Wilson Decl., ¶ 1.
In it, she described the approach that the agency took in preparing and carrying out its search for
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material responsive to Plaintiffs’ five-part request. The first step consisted of “consult[ing] with
Agency officials knowledgeable about th[e] [sought-after] subject matter to ascertain the
universe of responsive records and to identify the specific offices and individuals who would
possess [them].” Id., ¶ 9.
Based on those consultations, the agency turned its attention to specific offices where “it
[was] reasonably likely that responsive records would reside.” Id., ¶ 10. For four of the five
categories of documents – excluding those pertaining to the CIA contract – the agency
determined that eight specific offices “would be the locations that would maintain” responsive
records. See id., ¶ 9. The offices included the Office of the Director (which also includes the
Offices of the Deputy Director and Executive Director), the Office of Public Affairs, the Office
of Congressional Affairs, the Office of General Counsel, the Office of the Inspector General, and
the Office of Security. Id. For the contract-related material, the CIA concluded that a search of
the “office involved with procuring the contract” would contain such documents. Id. The
agency included both paper and electronic records in carrying out its search. Id., ¶ 10.
In addition to the office-specific searches, “CIA personnel conducted searches of records
maintained by certain individuals who were identified as possibly possessing responsive
documents.” Id., ¶ 9. The individual-records search likewise covered both paper and electronic
material. Id., ¶ 10.
The agency relied on a set of non-exclusive search terms “calculated to locate
[responsive] documents.” Id. The terms included: SSCI review, SSCI staff, unauthorized
search, unauthorized access, RDINet, Firewall, Panetta review, and WCR. See id. (To assist the
reader, “RDINet” refers to the Rendition and Interrogation Network, which “was the system used
by SSCI staffers when conducting their review,” id. n.5; “WCR” is the “internal Agency
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reference for the draft documents that the plaintiffs call the ‘Panetta review.’” Id. n.6) In
addition, because the events forming the basis for Plaintiffs’ request had only recently occurred,
CIA officers charged with executing the search “also relied on the assistance of knowledgeable
officials to locate collections of potentially responsive records held by offices and individuals.”
Id.
In sum, the CIA asserts that its personnel conducted a reasonable search for responsive
records, examining the files likely to contain responsive material. See MSJ at 8. Plaintiffs
disagree, however, identifying a series of discrete flaws they believe render Defendant’s search
insufficient under FOIA. The Court addresses each of their six specific arguments below.
B. Plaintiffs’ Objections
1. Narrow Interpretation of Search Request
Plaintiffs’ first objection is that “the CIA interpreted portions of Plaintiffs’ five-part
request too narrowly.” Opp. at 3. They home in on what they see as discrepancies between the
precise language of their FOIA request and the Wilson declaration’s description of the agency’s
search. As an example, the first part of their request seeks “all written agreements and
correspondence” between SSCI and the CIA, see FOIA Request at 2, whereas the Wilson
declaration appears to omit “written agreements” in describing its search effort. See Wilson
Decl., ¶ 9 (“As outlined above, plaintiffs requested five separate categories of records, i.e., (1)
correspondence between the CIA and SSCI . . . .”). Plaintiffs acknowledge that elsewhere in the
declaration, Wilson recites the language of their request verbatim, see Wilson Decl., ¶ 6, but read
the sentence from paragraph 9 as revealing the CIA’s decision to “interpret[] Plaintiffs’ FOIA
request as applying only to ‘correspondence . . .’” Opp. at 3-4.
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They also believe that Wilson’s abbreviated summary in paragraph 9 relating to parts 2
and 3 of Plaintiffs’ request evinces a similar effort by the agency to improperly cabin what they
are seeking. See id. at 4. It is true that in her declaration, Wilson summarizes those parts of the
request by stating that “plaintiffs requested five separate categories of records, . . . [including] (2)
the CIA and DOJ investigations into the search of SSCI computers; [and] (3) the CIA and DOJ
investigations into the removal of documents referred to as the ‘Panetta Review.’” Wilson Decl.,
¶ 9. This differs from those segments of Plaintiffs’ actual request, which also asked for
documents exchanged between CIA and SSCI. Compare FOIA Request at 2 (seeking, for
example, “correspondence between the SSCI . . . and the CIA” regarding the events in question).
The Court finds these insinuations of purposeful omissions to manifest unreasonable
suspicion on Plaintiffs’ part. The declaration, read in context, simply evinces Wilson’s attempt
to provide a condensed summary (in paragraph 9) of a lengthy FOIA request, which was
properly excerpted in full in an earlier part of the document (in paragraph 4). While she may
well have sacrificed precision for the sake of brevity – particularly since she had already recited
the full request – this is hardly a nefarious act. Rather than penalize Wilson’s concision, the
Court would encourage more litigants to abide by Orwell’s adage that “[i]f it is possible to cut a
word out, always cut it out.” George Orwell, Politics and the English Language, in 4 The
Collected Essays, Journalism and Letters of George Orwell 139 (Sonia Orwell & Ian Angus eds.,
1968).
To the extent Plaintiffs harbor any lingering misgivings about Defendant’s intentions,
moreover, the agency furnished a supplemental declaration to make clear that it did not narrow
Plaintiffs’ request. It states:
In [the relevant] section of the [Wilson] declaration, the CIA
attempted to summarize plaintiffs’ request to serve as a shorthand
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reference for the reader. Any omissions in the summary were
inadvertent and did not indicate a narrowing or interpretation of
plaintiffs’ original request. Rather, the CIA searched for all the
documents listed in plaintiffs’ request . . . .
Reply, Attach. 1 (Declaration of Antoinette B. Shiner), ¶ 5. Plaintiff has not opposed the filing
of this supplemental declaration, and even though the Court finds this additional explanation to
be superfluous, it clearly cures any doubt about whether the CIA impermissibly narrowed its
search.
2. Distinguishing Responsive from Non-Responsive Records
The next objection relates to how the CIA distinguished between those documents it
deemed responsive and those that it initially found “potentially” responsive but ultimately
determined were not. As the CIA explained in its initial declaration, because Plaintiffs sought
information relating to temporally recent events, the agency took a two-pronged approach to
uncover responsive records. The first involved a standard search of offices and individual
personnel files and databases (both hard copy and electronic) likely to contain records. See
Wilson Decl., ¶¶ 9-10. To ensure it did not miss any recent materials, however, it also “relied on
the assistance of knowledgeable officials to locate collections of potentially responsive records
held by offices and individuals.” Id., ¶ 10. From these parallel paths, the agency “uncovered a
large volume of duplicative documents and non-responsive records” in addition to the responsive
ones. Id. After reviewing that broader pool of material to exclude duplicative and non-
responsive material, it then proceeded to determine whether the remaining responsive documents
were exempt from disclosure under FOIA. See id., ¶¶ 10-36.
Plaintiffs attack the agency’s non-responsiveness determinations as insufficiently
explained, asserting that “the record contains no evidence of how the CIA determined which
records were non-responsive.” Opp. at 4. That statement is somewhat off the mark because the
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agency implicitly did shed light on what it considered to be non-responsive by defining the
parameters it used to uncover responsive material. See id., ¶¶ 9-10. Regardless, the CIA in its
supplemental declaration explained that it
used a plain reading of the request to make its responsiveness calls.
Because the[] search terms were so general in nature [e.g.,
unauthorized search, unauthorized access, firewall], many of the
documents retrieved contained one or more of the search terms, but
clearly did not relate to the five items requested by Plaintiffs. As a
result, the Agency determined that this material was non-responsive
and excluded it from the litigation.
Shiner Decl., ¶ 12. Or, to state it more clearly, if, upon closer inspection by CIA personnel, the
document was “clearly” irrelevant to the request, it was deemed “non-responsive.”
Using the “guiding principle of reasonableness” to gauge the search’s adequacy, see
Weisberg, 745 F.2d at 1485, the agency’s description of its document-by-document, common-
sense approach to distinguishing responsive from non-responsive documents was proper and
described in sufficient detail, particularly given the contrast between the narrow focus of the
request and the breadth of certain search terms. See Hall & Assocs. v. EPA, 14 F. Supp. 3d 1, 7
(D.D.C. 2014) (“human-centered approach” to “review[ing] . . . potentially responsive
documents to determine whether they were in fact responsive” was “entirely proper” under
FOIA). After all, “[r]equiring a description of how the [search personnel] searched [the targeted]
files so that plaintiffs can scrutinize all aspects of the [agency’s] efforts would run afoul of the
principle that courts confronted with FOIA requests should not ‘attempt to micro manage the
executive branch.’” Nat’l Immigration Project of the Nat. Lawyers Guild v. U.S. Dep’t of
Homeland Sec., No. 11-3235, 2012 WL 6809301, at *7 (S.D.N.Y. Dec. 27, 2012) (emphasis
added) (quoting Johnson v. Exec. Office for U.S. Attorneys, 310 F.3d 771, 776 (D.C. Cir.
2002)); see also Competitive Enter. Inst. v. EPA, 12 F. Supp. 3d 100, 114 (D.D.C. 2014)
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(concluding that even though agency “out of an abundance of caution that borders on confusion,
included non-responsive documents” on Vaughn Index, agency “was not required to release
them nor further justify their withholding”).
Plaintiffs nevertheless insist that they “must be provided with an opportunity to challenge
[the] agency’s determination of non-responsiveness.” Opp. at 4. In so arguing, they cite two
cases from the Northern District of California that they believe stand for such a proposition –
namely, Dunaway v. Webster, 519 F. Supp. 1059 (N.D. Cal. 1981), and ACLU v. FBI, No. 12-
3728, 2013 WL 3346845 (N.D. Cal. July 1, 2013). Neither of those non-binding cases, however,
provides that a plaintiff is entitled to interject itself into the agency’s general responsiveness
determinations, particularly where the agency has offered a full explanation. In both cases, the
relevant agency disclosed portions but not all of certain documents, redacting other portions and
withholding still others as non-responsive. See Dunaway, 519 F. Supp. at 1083; ACLU, 2013
WL 3346845, at *11. In both cases, the court determined it sensible to review the full documents
in camera to determine whether the redactions were proper. See Dunaway, 519 F. Supp. at
1083; ACLU, 2013 WL 3346845, at *11. At least in Dunaway, the court concluded that the
agency had improperly redacted some information that was at least tangentially responsive and
ordered its release. See 519 F. Supp. at 1083-84 (ordering release of materials “in those
instances where the court felt that there was any possibility that the material might bear some
relationship to the subject of the request, or if the information was necessary to understand the
context in which the reference to the subject of the request arises in the document”).
In short, both were cases in which certain documents were already before the court, and
the parties were quibbling about the scope of certain redactions. That is not the case here, and
with no suggestion that the agency improperly carried out its responsiveness determinations, the
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Court is unwilling to require further and more detailed explanations on this front. See Weisberg,
745 F.2d at 1485 (“The adequacy of the search . . . is judged by a standard of
reasonableness . . . .”); cf. Dunaway, 519 F. Supp. at 1064 (“Having waded through this mass of
documents . . . we well understand why courts have generally avoided the quagmire of in camera
inspections under the FOIA, particularly where a large number of documents are at issue.”).
3. Duplicate Records
Plaintiffs also take issue with the CIA’s assertion that it withheld “duplicate” records.
See Opp. at 5; Wilson Decl., ¶ 10 (“[D]uplicative documents . . . . [were] excluded from the
ligitation.”). Such withholding was improper, they claim, because their FOIA request
specifically asked for “duplicate” records. See FOIA Request at 7 (“Requesters request
disclosure of any and all supposedly ‘duplicate’ pages.”). As they explain it: “Scholars analyze
records not only for the information available on any given page, but also for the relationships
between that information and information on pages surrounding it.” Id. But the government’s
obligations under FOIA are “satisfied when an agency produces the requested pages.” Jett v.
FBI, No. 14-276, 2015 WL 5921898, at *8 (D.D.C. Sept. 30, 2015); see Crooker v. U.S. State
Dep’t, 628 F.2d 9, 10 (D.C. Cir. 1980) (per curiam) (“[FOIA] does not require that the agency
from which documents are requested must release copies of those documents when another
agency possessing the same material has already done so.”). While this does not mean that
where there are similar but not identical documents, the government may choose which one to
produce, “it would be illogical and wasteful to require an agency to produce multiple copies of
the exact same document.” Defenders of Wildlife v. U.S. Dep’t of the Interior, 314 F. Supp. 2d
1, 10 (D.D.C. 2004). The Court will not so require here.
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4. Inadequate Description of Search
Plaintiffs next argue that “[t]he CIA’s [declaration] does not sufficiently describe the
search conducted.” Opp. at 5. They take aim at what they believe are several critical
shortcomings. First is a lack of detail on who carried out the search. Second is a failure to
explain which “records systems” the CIA searched and why it might have searched some but not
others. Third is insufficient information pertaining to the manner in which the CIA carried out
its search. The Court will treat each objection in turn.
As a reminder, to meet its burden of establishing that the search was “reasonably
calculated to uncover all relevant documents,” Valencia-Lucena, 180 F.3d at 325 (internal
citation and quotation marks omitted), the agency may submit a declaration explaining the scope
and method of its search “in reasonable detail.” Perry, 684 F.2d at 127. That includes “set[ting]
forth the search terms and the type of search performed, and averring that all files likely to
contain responsive materials (if such records exist) were searched . . . .” Oglesby, 920 F.2d at
68. Such a declaration will suffice to meet the agency’s burden unless there is contrary record
evidence raising a doubt that the search was adequate. See Truitt, 897 F.2d at 542.
Search Personnel
Although the Court is unsure why the identity of the personnel executing the search is of
any use to Plaintiffs, they nevertheless complain that the CIA erroneously declined to broadly
identify those individuals. See Opp. at 6 & n.3 (“Names are not necessary. Rather, the CIA
should describe the nature of the personnel.”). The agency has remedied any such deficiency by
explaining in its supplemental declaration that personnel from within the agency’s “Information
Management Services” unit conducted the search. See Shiner Decl., ¶ 6. The CIA continues:
“[IMS is] a component within the CIA that serves as the reception point for all FOIA
requests . . . . [Its] professionals are experienced with the records holdings of particular offices
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and the methods for retrieving responsive documents from those systems.” Id. Having generally
identified the searching parties and described, as Plaintiffs requested, the “nature of the
personnel” carrying out the search, any objection on this point now appears moot.
Records Systems Searched
Plaintiffs’ next gripe is with the CIA’s purported failure to specify which “records
systems” it searched. This particularly raises their hackles because they included in their FOIA
request an illustrative set of records systems that they believed were likely to contain responsive
documents. See FOIA Request at 2 (asking CIA to search, inter alia, Congressional Liaison
Records, Office of the Director Action Center Records, Inspector General Research Records,
Inspector General Investigation and Review Records, etc.). Although the FOIA request does not
so indicate, the listed records systems appear to be drawn from the CIA’s compilation of its
“Privacy Act systems of records,” which was published in the federal register as part of the
agency’s obligations under that statute. See Privacy Act of 1974; Systems of Records and
Routine Uses, 70 Fed. Reg. 29832, 29832 (May 24, 2005).
In describing its search efforts, however, the CIA did not indicate that it had searched any
of those “systems of records” highlighted by Plaintiffs. Instead, the agency stated that
the searches included all relevant databases, Agency share drives,
and archival records which contained tasking information,
correspondence, memoranda and other office-specific records
sought by plaintiffs. Those keyword searches, including those set
forth in the [Wilson Declaration], were calculated to retrieve from
each database and filing system records that contained those terms.
In cases where records provided references to additional responsive
documents, IMS professionals followed up on those leads and
conducted additional searches based on those terms or references.
At the conclusion of those searches, IMS professionals determined
that there were no additional office databases, files or repositories
that were reasonably likely to contain the records requested by
plaintiff [sic].
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Shiner Decl., ¶ 7. It also explained why the Privacy Act “systems of records” highlighted by
Plaintiffs were not helpful or relevant in carrying out the search, noting:
The purpose of [the CIA’s systems-of-records notice published in
the federal register], inter alia, is to identify broad categories of
records maintained by CIA that are retrievable by an individual’s
name or personal identifier and therefore [are] subject to the
provisions of the Privacy Act of 1974.
Id., ¶ 14.
Those systems of records thus serve a purpose distinct from identifying databases or
other repositories of information that might contain documents relevant to a given FOIA request.
See id. (“The Privacy Act systems of records are not tantamount to discrete Agency databases
and filing systems that can or should be searched in response to a FOIA request and they have no
bearing on how the CIA designed and executed its searches in the FOIA case.”). The CIA,
moreover, clarified in its supplemental declaration that even though these systems of records “do
not inform FOIA searches, all of the offices that manage the Privacy Act systems of records
referenced by Plaintiff were searched as part of this litigation[.]” Id., ¶ 14 n.4.
Plaintiffs rejoin that the CIA “may not turn a blind eye to leads identified in the request
which are likely to yield responsive records.” Opp. at 8. But as the D.C. Circuit has made clear,
“[A] request for an agency to search a particular record system – without more – does not
invariably constitute a ‘lead’ that an agency must pursue.” Mobley v. CIA, 806 F.3d 568, 582
(D.C. Cir. 2015). To compel the agency to search a particular system, the “lead” provided “must
be ‘both clear and certain’ and ‘so apparent that the [agency] cannot in good faith fail to pursue
it.’” Id. (quoting Kowalczyk v. Dep’t of Justice, 73 F.3d 386, 389 (D.C. Cir. 1996)).
Plaintiffs have not offered any explanation as to why the specific Privacy Act systems of
records identified in their request constitute leads that, on their face, should have been pursued,
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particularly given the agency’s assertion that it searched the relevant offices that managed those
systems. Requesters cannot simply demand that an agency carry out the search in the manner
they wish by “mere fiat.” Id. (rejecting as contrary to the “reasonableness” standard plaintiff’s
argument that requester is entitled “to dictate, through search instructions, the scope of an
agency’s search”). Critical here, too, is that the agency has provided a reasonable explanation
for why those purported leads would not assist it in executing its search. See Shiner Decl., ¶ 14.
Lack of detail
Plaintiffs’ final objection to the CIA’s description of its search is that it lacked sufficient
detail on three points: (a) which precise search words were used, (b) which search terms were
used for each record system searched, and (c) how the “search mechanism” functions on a
database-by-database or repository-by-repository basis.
The first issue is a nitpicky one. Plaintiffs acknowledge that the CIA provided a set of
terms that it used in its search, but argue that because the agency qualified that list by using
“such as,” it obfuscated the search terms it actually used. See Opp. at 9 (“[I]n using the language
‘such as,’ the declaration indicates that it is not providing a list of the actual keywords used,
merely examples.”) (emphasis in original); Wilson Decl., ¶ 10 (“Employees conducted the
searches using terms such as ‘SSCI review,’ ‘SSCI staff’ . . . ,” etc.). As the agency explains in
the Shiner declaration, however, “[T]he search terms listed [in the Wilson declaration] . . . and
variations of those terms were used in the course of the Agency’s searches.” Shiner Decl., ¶ 12
n.3 (emphasis added). That is enough.
Plaintiffs also argue in their Opposition that the CIA erred by not including “draft
review” in its set of search terms because although the media referred to the relevant document
as the “Panetta review,” Plaintiffs claim that the agency internally used the former term. See
Opp. at 9 (citing this Court’s opinion in Leopold v. CIA, 89 F. Supp. 3d 12, 16 (D.D.C. 2015)).
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The CIA demonstrates that this assertion is unfounded. As a preliminary matter, Leopold does
not, in fact, state that the agency used “draft review” as a shorthand for the document Plaintiffs
refer to as the “Panetta review.” See 89 F. Supp. 3d at 16 (describing short-term effort by CIA to
“prepar[e] summaries of certain key information” related to SSCI’s review of CIA interrogation
and detention practices, including the preparation of “draft review[s]” by CIA personnel, which
were “inten[ded] . . .to become . . . rough guide[s] to noteworthy information on a particular
topic”) (internal quotations and citations omitted). The declaration submitted to the Court by the
CIA in that case – which Plaintiffs attached to their Opposition – also states quite clearly that
“[w]hat Mr. Leopold calls the ‘internal study,’ and what press accounts have sometimes called
the ‘Panetta Review,’ is actually a series of more than forty draft documents relating to the CIA’s
former detention and interrogation program.” Opp., Attach. 2 (Declaration of Martha M. Lutz,
filed in Leopold v. CIA, No. 14-48 (Dec. 10, 2014)), ¶ 8. The declarant in that case, Martha
Lutz, then went on to state: “For convenience, I will refer to them in this declaration as the ‘Draft
Reviews,’ or simply ‘the Reviews.’” Id., ¶ 10 (emphasis added).
More to the point, Plaintiffs are not entitled to summary judgment merely because they
might have preferred that the agency use one search term over another. See, e.g., Physicians for
Human Rights v. U.S. Dep’t of Def., 675 F. Supp. 2d 149, 163-64 (D.D.C. 2009) (no support
“for the proposition that a FOIA claimant can dictate the search terms to be used as the
benchmark for determining whether an agency’s search is reasonable”) (citation and internal
quotation marks omitted). This is all the more relevant here where the agency has gone to great
lengths at the beginning of the search process to ensure that its effort was designed to maximize
responsive results. See Wilson Decl., ¶ 9 (“In the course of conducting searches for [the
requested material], CIA personnel consulted with Agency officials knowledgeable about this
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subject matter to ascertain the universe of responsive records and to identify the specific offices
and individuals who would possess those documents.”); id., ¶ 10 (“Given the recency of the
events . . . search professionals also relied on the assistance of knowledgeable officials to locate
collections of potentially responsive records . . . .”). In sum, the Court does not find the search
was inadequate simply because the CIA did not use the search term “draft review.”
Plaintiffs also want to know “which records systems were searched using which terms.”
Opp. at 4. But the CIA has already provided such information by reaffirming that all of the listed
search terms (and variations on those terms) were employed to carry out the search. They need
not repeat that list ad nauseam in describing each office and record system that they searched.
Last, Plaintiffs assert that the agency fails to adequately describe how each record
system’s search function operates, suggesting that they need more detail to determine the
adequacy of the search. See Opp. at 9 (“[A]re the keywords searching an index of documents or
the full-text of documents? Would a search for ‘firewall’ return a hit for the plural form,
‘firewalls’? Were Boolean searches used . . .?”). Plaintiffs point to no case, however, that
demands, as a matter of course, this degree of specificity from an agency declarant. See Citizens
for Responsibility & Ethics in Washington v. Nat’l Indian Gaming Comm’n, 467 F. Supp. 2d 40,
50 (D.D.C. 2006) (rejecting FOIA claimant’s demand that agency provide “information
regarding the actual databases or indices searched” and “what Boolean operators (if any) were
used to accomplish the electronic search”) (citations and internal quotation marks omitted). And,
like Plaintiffs’ other objections, this one is rendered all the more trifling on account of the CIA’s
careful ex ante preparations in designing its search in this case. Accord Physicians for Human
Rights, 675 F. Supp. 2d at 164 (“[A]n agency is only held to a standard of reasonableness; as
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long as this standard is met, a court need not quibble over every perceived inadequacy in an
agency’s response, however slight.”).
5. Failure to Uncover Documents
Plaintiffs next invoke the oft-used but rarely successful strategy of impugning the
adequacy of the search by identifying certain documents that they claim would have been
produced had the agency proceeded properly. Plaintiffs first point to the CIA’s failure to turn up
“certain letters exchanged between [CIA offices of General Counsel, Congressional Affairs, and
Security] and Sens. Feinstein, Chambliss, and other SSCI members.” Opp. at 10. In addition to
Plaintiffs’ failure to specify what those letters are, they also decline to provide anything beyond a
speculative conclusion that the documents should have been located and produced by the agency
had the search been adequate. See id. at 10-11 (“On information and belief, these letters were
eventually obtained by SSCI, but were not released to Plaintiffs or cited to in the Vaughn index
in this case.”). Conclusory speculation will not suffice to defeat summary judgment here.
They also point to a number that turns up on one of the documents produced by the
agency – OCA-2014-0065 – and argue that this constitutes a “file” that the agency should have
reviewed because the file “appears to contain correspondence between CIA and SSCI relating to
the RDINet issues that are the subject matter of Plaintiffs’ request.” Opp. at 11. The agency
explains, however, that Plaintiffs have misunderstood the reference to that number, which relates
not to a file, but to a “reference number associated with that particular correspondence . . . .”
Shiner Decl., ¶ 10. Taking that credible explanation alongside the D.C. Circuit’s general
guidance that “a search is not unreasonable simply because it fails to produce all relevant
material,” Meeropol v. Meese, 790 F.2d 942, 952-53 (D.C. Cir. 1986), the Court concludes that
Plaintiffs’ identification of a reference number on an already-produced document does not an
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inadequate search make. See SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1201 (D.C. Cir.
1991) (relevant inquiry is “whether the search was reasonably calculated to discover the
requested documents, not whether it actually uncovered every document extant”).
6. Offices Not Searched
The final objection Plaintiffs lodge is that the CIA neglected to search a number of
offices or locations that they believe are likely to contain responsive documents. They argue that
in addition to the eight offices searched, the agency should have dug into files and databases held
by the Offices of the Director of the National Clandestine Service, the Directorate of
Intelligence, the Directorate of Science and Technology, “or” (confusingly, they do not use the
conjunctive “and”) the Directorate of Support, as well as the National Clandestine Service
Secretariat File or the “RDI Group’s files.” Opp. at 11-12. These places should have been
searched, they claim, because “[r]ecords released to Plaintiffs in this case contain markings
indicating that the records were distributed to one or more of these offices or files.” Id. at 12.
Leaving aside the question of “markings” for a moment, the CIA has, as a general matter,
amply demonstrated that the scope of its search was reasonably calculated to locate responsive
material. It did precisely what a responsible agency should do when faced with this type of
FOIA request, which is to first “consult[] with Agency officials knowledgeable about th[e]
subject matter to ascertain the universe of responsive records and to identify the specific offices
and individuals who would possess those documents.” Wilson Decl., ¶ 9. In conducting that
assessment, the CIA concluded that because the “Directorate of Operations, the Directorate of
Science and Technology, [and] the Directorate of Analysis . . . were not involved with the SSCI
review process, the OIG or Department of Justice investigations or other aspects of plaintiffs’
request,” those offices were not likely to contain responsive records. See Shiner Decl., ¶ 9. In
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other words, the search personnel did not simply embark on the task without either a sextant or a
charted path to the final destination. Their course was appropriate and resulted in a search of “all
locations in which it is reasonably likely that responsive records would reside . . . .” Wilson
Decl., ¶ 10.
In addition, even though Plaintiffs argue that the CIA should have searched the
“Directorate of Support,” its declarations make clear that it did search records held by that office
when it searched the “Office of Security, which is part of the Directorate of Support.” Id., ¶ 9
n.1. The agency deemed that sub-office to be the one most likely to contain potentially
responsive records, and the Court agrees that it was not required to conduct a search of the entire
office, having already “determined that other parts of that directorate were not reasonably likely
to maintain [responsive] material.” Id.
The next question is whether the “markings” Plaintiffs claim to have identified on some
of the records they obtained from the CIA should have served as a lead that required the agency
to expand its search. In making this argument, Plaintiffs attached four exhibits to their
Opposition as evidence that certain records had “markings” indicating that they “were distributed
to one or more” of the offices or files noted above. See Opp. at 12. Only one of those
documents, however, was distributed to any of the offices Plaintiffs maintain should have been
searched but were not. That document is a letter designating the office of the Executive Director
as the “lead for all matters pertaining to the recent discovery of privileged Central Intelligence
Agency documents on a section of . . . local area network being used by the staff of the Senate
Select Committee on Intelligence conducting the investigation into the former CIA Rendition,
Interrogation and Detention program.” Opp., Exh. A (Jan. 23, 2014, Memorandum of John
Brennan) at 1.
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As the document itself explains, however, in so designating the Executive Director as the
“lead” on this matter, it empowered that office to “call upon any component of the Agency to
provide you with personnel or resources as you deem necessary.” Id. In other words, the letter
“received a wider distribution” than the offices searched by the CIA here because it was
notifying a broad set of agency offices that they might be called upon for assistance by the
Executive Director if it was necessary. See Shiner Decl., ¶ 10. The CIA further explains that the
“memorandum is unique” in that regard, meaning that its existence did not “impact the search
strategies used by the IMS professionals to uncover responsive records.” Id. The Court finds
this explanation sufficient to justify the CIA’s decision not to search those other offices,
particularly given that the letter is the only evidence Plaintiffs offer to suggest that the search
was too narrow as to the specific offices searched. See Kowalczyk, 73 F.3d at 389 (lead must be
“both clear and certain” and “so apparent that the [agency] cannot in good faith fail to pursue
it”).
Plaintiffs also believe that because certain produced documents were also marked as
distributed to “RDI,” the “RDI Group’s files” should also have been searched. See Opp. at 11-
12. (RDI refers to rendition and interrogation, see Wilson Decl., ¶ 10 n.5, although the agency
calls what Plaintiffs refer to as the “RDI Group” the “Director’s Review Group.” See Reply at
11.) The CIA explains that it did search those files “as part of the broader Director’s area
search,” and that the search of those files yielded some responsive documents that were either
produced or are withheld and listed in the Vaughn Index. See Shiner Decl., ¶ 10; Reply at 11.
That is sufficient.
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IV. Conclusion
In sum, Plaintiffs’ objections, though numerous, are insufficient to defeat the CIA’s
showing that it carried out the search in a manner reasonably calculated to locate documents
responsive to the initial FOIA request. For these reasons, the Motion for Summary Judgment
will be granted. A separate Order so stating will issue this day.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: April 8, 2016
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