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Servicemembers Legal Defense Network v. Dep't of Defense

January 12, 2007

SERVICEMEMBERS LEGAL DEFENSE NETWORK, PLAINTIFF,
v.
DEPARTMENT OF DEFENSE AND DEPARTMENT OF JUSTICE, DEFENDANTS.



The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge

MEMORANDUM OPINION

The Servicemembers Legal Defense Network ("SLDN") filed this case under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, against the Department of Defense ("DOD") and the Department of Justice ("DOJ") (collectively, "Defendants"). SLDN seeks release of government records relating to the alleged government surveillance of individuals and groups opposed to the government policy on gays and lesbians in the military, known as the "Don't Ask, Don't Tell" policy. Defendants have filed a motion for summary judgment, contending that they conducted an adequate search and have released all material that is not exempt from disclosure under 5 U.S.C. § 552(b). SLDN contends that DOD and DOJ did not fully and adequately process SLDN's FOIA requests. Because Defendants have submitted sworn declarations documenting an adequate record search, the Court will grant their motion for summary judgment.

I. BACKGROUND FACTS

SLDN is a non-profit public interest organization dedicated to ending discrimination against gay and lesbian United States military personnel. SLDN disseminates information and provides legal services. It describes itself as an "organization dedicated to ending discrimination against and harassment of military personnel affected by 'Don't Ask, Don't Tell.'" See http://www.sldn.org (last visited Jan. 10, 2007).

On January 5, 2006, SLDN submitted FOIA requests to DOD, to DOD's component the Counterintelligence Field Activity ("CIFA"), and to the Federal Bureau of Investigation ("FBI"), a component of DOJ. Pl.'s Mot. for Prelim. Inj. ("Pl.'s PI Mot."), Ex. 25, Decl. of Christopher Wolf ("Wolf Decl."). SLDN requested documents concerning the purported government "surveillance of meetings involving people and/or organizations discussing, considering or stating opposition to 'Don't Ask, Don't Tell'" and for documents concerning "surveillance of meetings involving LGBT organizations," i.e., organizations that represent the interests of lesbians, gay men, bisexuals and/or transgendered people. Wolf Decl., Ex. A (FOIA request to CIFA), Ex. B (FOIA request to DOD), and Ex. G (FOIA request to the FBI). "Meetings" was defined to include "demonstrations or rallies." Id.*fn1

SLDN believed that such surveillance had taken place because of various press reports, especially a December 13, 2005, NBC Nightly News report. Pl.'s Opp. at 3. This report was posted on the MSNBC.com website the next day. See Pl.'s PI Mot., Ex. 3, Lisa Meyers, Is the Pentagon Spying on Americans?, MSNBC.com, Dec. 14, 2005. According to the report, DOD directed CIFA to establish and maintain a domestic law enforcement database that would include information related to potential terrorist threats. For this purpose, DOD implemented a new reporting mechanism called a Threat and Local Observation Notice report (a "TALON" report).*fn2 Id. The news report stated that NBC had received a DOD document describing surveillance of anti-war and counter-military-recruitment groups by CIFA. This 400-page document listed "suspicious incidents," including protests of the military's "Don't Ask, Don't Tell" policy at New York University, The State University of New York at Albany, and the University of California at Santa Cruz. Id. Subsequently, the New York Times reported that the FBI also had conducted surveillance of activist groups within the United States. See Pl.'s PI Mot., Ex. 11, Eric Lichtblau, FBI Watched Activist Groups, New Files Show, N.Y. Times, Dec. 20, 2005.

SLDN requested expedited processing, but DOD denied the request. Defs.' Mem. in Supp. of Mot. for Summ. J. ("Defs.' Mem."), Ex. 3, Third Decl. of William Kammer ("Third Kammer Decl.") ¶ 3. SLDN was "frustrated" by DOD's denial of expedited processing and by the slowness of the FBI's response, so it filed this lawsuit alleging FOIA violations on February 6, 2006. Pl.'s Opp. at 7. In the meantime, Defendants searched for documents.

On February 8, 2006, the FBI notified SLDN that it was searching its records. Wolf Decl., Exs. M-O. The FBI divided SLDN's FOIA request into three subject areas: (1) "Don't Ask, Don't Tell"; (2) the February 2005 protest at New York University organized by a group called "OUTlaw"; and (3) the April 2005 demonstration at the University of California at Santa Cruz. Defs.' Mem., Ex. 2, Second Decl. of David Hardy ¶ 8 ("Second Hardy Decl."). With respect to the first topic, the FBI searched the terms "Don't Ask, Don't Tell," "Servicemembers Legal Defense Network," and "SLDN." Id. ¶ 27. The terms the FBI searched included "OUTlaw," "homosexual," "protest," and "New York University" to look for information regarding the second topic. Id. ¶ 28. And to search the third topic, the FBI searched for "University of California," "demonstration," and "homosexual." Id. ¶ 29. No responsive documents were found. Id. ¶¶ 27-29.

The Department of Defense Office of Freedom of Information ("DOD-OFOI") processes FOIA requests for documents in the possession and control of the Office of the Secretary of Defense, including the Office of the Under Secretary of Defense for Intelligence ("USD(I)"), as well as CIFA. Third Kammer Decl. ¶¶1-2. DOD-OFOI tasked CIFA, which is responsible for DOD's TALON program, to search the TALON database, TALON documents that had been removed from the database, its shared file network, and all email and documents in its communications office. Third Kammer Decl. ¶ 4. The CIFA search resulted in finding: 1) three TALON reports; 2) a January 26, 2006, letter concerning the TALON program; and 3) an October 24, 2005, memo concerning "Mission Tasking Authority." Id. ¶ 6. These documents, with certain redactions, were released to SLDN on April 3, 2006. Id. ¶ 7. On May 1, 2006, four more documents were provided to SLDN: 1) a December 19, 2005 letter concerning the TALON system; 2) a January 13, 2006 memo regarding "Retention and Use of Information for the TALON System"; 3) a memo concerning "Collection, Reporting, and Analysis of Terrorist Threats to DoD [sic] Within the United States"; and 4) a memo concerning the TALON/Cornerstone database. Id. ¶ 8.

SLDN inquired why TALON reports for certain events were not included in the production of documents. Id. ¶ 9. DOD explained that SLDN had requested documents relating to "surveillance" of meetings and communications regarding LGBT groups, and that DOD did not view the TALON program as "surveillance."*fn3 Id. Even so, DOD agreed to treat SLDN's request as one for all TALON reports related to meetings or communications involving LGBT groups. Thus, CIFA searched for reports using the terms "Albany," "discrimination," "discrim," "Don't Ask, Don't Tell," "gay," "homosexual," "lesbian," "LGBT," and "sexual." Id. This search resulted in the discovery of five TALON reports, which were redacted and produced. Id. ¶¶ 9-10.

DOD-OFOI also requested that USD(I) search its files. Id. ¶¶ 5 & 8. USD(I) searched "all electronic files within the USD(I) Counterintelligence Directorate central repository" and a hard copy file of all TALON-related documents. Reply, Ex. 1, Fifth Declaration of William Kammer ("Fifth Kammer Decl.") ¶¶ 4-5. "This search located the documents that SLDN's request had specifically identified, as well as related documents." Id. ¶ 5 (citing Third Kammer Decl. ¶¶ 5, 7, & 8).

Defendants have filed a motion for summary judgment alleging that they have fully complied with their responsibilities under FOIA. SLDN objects, arguing that the FBI failed to conduct an adequate search, that the declarations submitted by DOD-OFOI lack the required specificity, and that DOD improperly limited its search by narrowly interpreting SLDN's FOIA request. While SLDN originally complained that numerous agencies and their components failed to adequately comply with SLDN's FOIA request, at this point SLDN contends only that the FBI and DOD-OFOI, on behalf of CIFA and USD(I), failed to fully and adequately process its FOIA requests. See e.g., Pl.'s Opp. at 4 n.1 (SLDN has dropped its claims against DOJ's Office of Information and Privacy and DOD's Defense Intelligence Agency).

II. LEGAL STANDARDS

Under Rule 56, summary judgment must be granted when "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 a judgment as a matter of law." Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); see also Diamond v. Atwood, 43 F.3d 1538, 1540 (D.C. Cir. 1995). Moreover, summary judgment is properly granted against a party that "after adequate time for discovery and upon motion . . . fails to make a showing sufficient to establish the existence ...


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