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Aftergood v. National Reconnaissance Office

July 24, 2006


The opinion of the court was delivered by: Reggie B. Walton United States District Judge


The plaintiff, Steven Aftergood, brings this action alleging that the defendant, the National Reconnaissance Office ("NRO"), has impermissibly withheld a document he requested pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 (2000). Complaint ("Compl.") ¶ 1. Currently before the Court are the plaintiff's motion for summary judgment ("Pl.'s Mot.") and the defendant's cross-motion for summary judgment ("Def.'s Mot.").*fn1 For the following reasons, the Court grants the plaintiff's motion for summary judgment and denies the defendant's cross-motion.

I. Background

Under the FOIA, federal agencies are required to disclose, upon proper request, a wide range of information pertaining to their operations. See 5 U.S.C. § 552(a)(1)-(5) (2000). Congress has created a number of exemptions from the FOIA's broad purview. See 5 U.S.C. § 552(b)(1)-(9). When an agency receives a request for records but discovers, upon reviewing the requested material, that it concerns matters falling within the scope of these exemptions, the agency is not required to disclose such records. See Assassination Archives & Research Ctr. v. C.I.A., 334 F.3d 55, 57 (D.C. Cir. 2003) (holding that agencies may deny disclosure of materials requested under the FOIA which fall under an exemption in 5 U.S.C. § 552(b)(1)-(9)). Additionally, Congress has empowered the Director of the NRO, "with the coordination of the Director of National Intelligence ["DNI"]," to exempt its "operational files" even from "the provisions of [the FOIA] which require publication, disclosure, search, or review in connection therewith." 50 U.S.C. § 432a (2000).*fn2 Thus, unlike the other FOIA exemptions-which allow an agency to withhold certain records from disclosure only after examining their contents, 5 U.S.C. § 552(b)(1)-(9)-the operational files exemption created by § 432a eliminates the NRO's obligation even to search through or review the files which it claims to be "operational." 50 U.S.C. § 432a(a)(1).

On February 10, 2003, exercising the authority given to them by 50 U.S.C. § 432a, NRO Director Peter B. Teets and Director of Central Intelligence George J. Tenet*fn3 issued for internal distribution an "Operational File Designation List" ("Designation List") identifying ten broad categories of files exempt from the FOIA's search and review procedure. See Def.'s Mem., Ex. 6 at 1-5. One of these categories, entitled "Budget and Finance Records Files"-which the Designation List defines as "records pertaining to budget formulation, execution, and review, and, accounting and expenditure"-specifically includes "consolidated budget estimates and justifications for the entire NRO program." Id. at 3.

The plaintiff, an employee of the Federation of American Scientists, Pl.'s Mem., Ex. 1 ¶ 1, submitted a FOIA request to the NRO on March 22, 2005, seeking the release of "all unclassified portions of the NRO Congressional Budget Justification Book ("CBJB") for Fiscal Year 2006," Compl. ¶ 13, Def.'s Mem. at 1 & Ex. 2. The CBJB is a document prepared by the NRO each year compiling budget estimates for all NRO programs, as well as justifications for those estimates, in support of the NRO's annual budget request to Congress. Compl. ¶¶ 2-3; Answer ¶¶ 2-3; Def.'s Mem. at 6-7; Am. Br. at 3. On March 29, 2005, the defendant issued a letter denying the plaintiff's request on the sole ground that "responsive records, should any exist, would be contained in operational files . . . exempt from the publication, disclosure, search, and review provisions of the FOIA" pursuant to § 432a. Def.'s Mem., Ex. 3; Compl. ¶ 14. The plaintiff administratively appealed the defendant's denial of his FOIA request on April 7, 2005, Def.'s Mem., Ex. 4, which the defendant likewise denied by letter dated May 18, 2005, on the basis that the CBJB was an operational file exempt from search and review, Def.'s Mem., Ex. 5. See Compl. ¶¶ 15-16; Def.'s Mem. at 1.*fn4 The plaintiff then filed this action on June 30, 2005, seeking a declaratory judgment that the defendant's withholding of the CBJB is unlawful and an injunction ordering the defendant to release to the plaintiff "all unclassified portions of the [CBJB]." Compl. at 4. The plaintiff moved for summary judgment on December 5, 2005, Pl.'s Mot. at 1, and the defendant filed a cross-motion for summary judgment on December 6, 2005, Def.'s Mot. at 1.

In support of its motion for summary judgment and in opposing the plaintiff's cross-motion for summary judgment, the defendant argues that the CBJB is properly exempt from the FOIA's search and review requirements. According to the defendant, the CBJB plainly falls within the "Budget and Finance Records Files" category set forth in the Designation List approved by the NRO Director and the DCI in February 2003. Def.'s Mem. at 6. Additionally, the defendant argues that the CBJB "clearly meets the statutory definition of an [o]perational [f]ile" provided in § 432a(a)(2)(A), in that it "contains detailed information on the means and methods used by the NRO to collect intelligence and is a virtual road map to [defendant NRO's] highly sensitive programs." Def.'s Mem. at 6 & Ex. 1 ¶¶ 14-15.

Neither the plaintiff nor the amicus contest that the CBJB fits within the extensive array of records designated exempt by the Designation List. See Am. Br. at 5.*fn5 Instead, they contend that § 432a does not empower the NRO to exempt the CBJB as an operational file. See Def.'s Mem., Ex. 4 at 1 (March 29, 2005, letter from Steven Aftergood to the NRO appealing rejection of his FOIA request); Am. Br. at 7-8. First, they argue that the CBJB does not meet the threshold definition of an "operational file" because it does not "document the means by which foreign intelligence or counterintelligence is collected through scientific and technical means," Am. Br. at 6 (quoting § 432a(a)(2)(A)), but rather "tell[s] the 'budget story' of agency operations," id. at 12, and "inform[s] lawmakers generally about the agency's operations in order to justify its budget request," id. at 7.

Second, the plaintiff and amicus argue that even if the CBJB does meet the threshold definition in § 432a(a)(2)(A), it fits into one or both of two exceptions to the operational files exemption. Pl.'s Mem. at 2-3; Pl.'s Reply at 3-4; Pl.'s Opp. at 4-5; Am. Br. at 13-17. The first of these exceptions, provided in § 432a(a)(2)(B), excludes from the definition of operational files items which are "the sole repository of disseminated intelligence." The second exception, set forth in § 432a(a)(4)(D), provides that "[r]ecords from exempted operational files which have been disseminated to and referenced in files that are not exempted . . . and which have been returned to exempted operational files for sole retention shall be subject to search and review." According to the plaintiff and amicus, the CBJB fits within each of these exceptions, as it has been disseminated outside the defendant agency, is the sole repository of the information it contains,*fn6 and has been returned post-dissemination to operational files for sole retention. Pl.'s Mem. at 3, Ex. 1 ¶¶ 3-7, Ex. 2 at 1; Pl.'s Reply at 3-4; Pl.'s Opp. at 4-5; Am. Br. at 13-17.

The defendant asserts that neither of these exceptions applies. Specifically, while it concedes that the CBJB has been disseminated, Def.'s Mem. at 7 & Ex. 1 ¶ 15; Def.'s Reply at 7, the defendant argues that the CBJB is not the sole repository of its contents, Def.'s Mem. at 6-7 & Ex. 1 ¶ 15; Def.'s Reply at 7, that it does not contain intelligence, Def.'s Mem. at 6 & Ex. 1 ¶ 15; Def.'s Reply at 7, and that it was not disseminated from operational files but rather as a complete, free-standing operational file, Def.'s Reply at 7. The defendant therefore contends that the CBJB was properly exempted from the FOIA's search and review procedures, notwithstanding the exemptions contained in §§ 432a(a)(2)(B) and 432a(a)(4)(D).

II. Standard of Review

A. Federal Rule of Civil Procedure 56(c)

Courts will grant a motion for summary judgment under Federal Rule of Civil Procedure 56(c) if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). When ruling on a Rule 56(c) motion, the Court must view the evidence in the light most favorable to the non-moving party. Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006) (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000)). The Court must therefore draw "all justifiable inferences" in the non-moving party's favor and accept the non-moving party's evidence as true. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

The non-moving party, however, cannot rely on "mere allegations or denials." Burke v. Gould, 286 F.3d 513, 517 (D.C. Cir. 2002) (quoting Anderson, 477 U.S. at 248) (quotation marks omitted). "[C]onclusory allegations unsupported by factual data will not create a triable issue of fact." Pub. Citizen Health Research Group v. FDA, 185 F.3d 898, 908 (D.C. Cir. 1999) (internal quotation marks and citations omitted). Rather, the non-moving party must go beyond "the pleadings and by [his] own affidavits, or depositions, answers to interrogatories, and admissions or file, designate specific facts showing that there is a genuine issue for trial." Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (internal quotation marks and citation omitted). Under Rule 56(c), if "the nonmoving party has failed to make a sufficient showing on a ...

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