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Leal v. Dep't of Homeland Security

November 8, 2007


The opinion of the court was delivered by: Paul L. Friedman United States District Judge


This matter is before the Court on defendant's motion for summary judgment. Having reviewed defendant's motion, plaintiff's opposition, defendant's supplemental submission and the entire record of this case, the Court will grant summary judgment for defendant.


It appears that plaintiff submitted to the National Security Agency ("NSA") a request pursuant to the Freedom of Information Act ("FOIA"), see 5 U.S.C. § 552, for "information on using forensics of news broadcasting in Toledo, Ohio to identify an election process conspiracy, as well as linked activity (a.k.a. capital crimes within the area)." Defendant's Memorandum in Support [of its Motion] for Summary Judgment ("Def.'s Mot."), Declaration of Sandy Ford Page ("Page Decl."), Ex. A (May 10, 2005 letter from L.F. Giles, Director of Policy, Central Security Service, NSA, regarding FOIA Case 46065) at 2. NSA's response to plaintiff's FOIA request suggested that information pertaining to domestic intelligence might be found in the records of federal law enforcement agencies such as the Federal Bureau of Investigation or the Department of Homeland Security ("DHS"). Id., Ex. A at 3. Following this lead, in May 2005, plaintiff submitted a copy of the NSA's May 10, 2005 letter to DHS with a cover letter of his own. Page Decl. ¶ 5 & Ex. A. DHS treated the correspondence as a FOIA request and acknowledged its receipt request in writing. Id. ¶ 5 & Ex. B (May 23, 2005 letter from C.M. Papoi, Deputy Director, Departmental Disclosure & FOIA, DHS, regarding Request No. DHS/OS/PO 05-469).

DHS staff referred plaintiff's request to the agency's Information Analysis and Infrastructure Protection ("IAIP") Directorate. Page Decl. ¶¶ 5-6 & Ex. C (May 23, 2005 Memorandum from C.M. Papoi to S.F. Page).*fn1 IAIP staff determined that, "to the extent that records are maintained in the DHS regarding 'domestic intelligence,' the term used by NSA, such records would have been maintained by the Assistant Secretary for Information and Analysis in the IAIP Directorate." Id. ¶ 6. Ultimately, staff found no records responsive to plaintiff's FOIA request and notified him of this result in writing. Id. ¶¶ 7-8 & Ex. D (Aug. 4, 2005 letter from S.F. Page). DHS's response was affirmed on administrative appeal. Id. ¶ 9 & Ex. F (Jan. 18, 2006 letter from M. Cooney, Acting Chief Privacy Officer and Chief Freedom of Information Act Officer, DHS). It was explained that DHS' mission "is to lead a unified national effort to secure America by preventing and deterring terrorist attacks and to prevent and respond to threats and hazards to the nation. It is unlikely that [DHS] would be involved in matters involving a local election." Id., Ex. F.


A. Summary Judgment Standard

The Court grants a motion for summary judgment if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits or declarations, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The moving party bears the burden of demonstrating an absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Factual assertions in the moving party's affidavits may be accepted as true unless the opposing party submits his own affidavits or declarations or documentary evidence to the contrary. Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992).

In a FOIA case, the Court may grant summary judgment based on the information provided in affidavits or declarations when the affidavits or declarations describe "the documents and 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." Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981); see also Hertzberg v. Veneman, 273 F. Supp. 2d 67, 74 (D.D.C. 2003).*fn2 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. & Exch. Comm'n, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (quoting Ground Saucer Watch, Inc. v. Central Intelligence Agency, 692 F.2d 770, 771 (D.C. Cir. 1981)).

B. Adequacy 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. United States 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)); Campbell v. United States Dep't of Justice, 164 F.3d 20, 27 (D.C. Cir. 1998) (FOIA requires agency to conduct search using methods reasonably expected to produce requested information). The agency bears the burden of showing that its search was calculated to uncover all relevant documents. Steinberg v. United States Dep't of Justice, 23 F.3d 548, 551 (D.C. Cir. 1994). To meet its burden, the agency may submit affidavits or declarations that explain in reasonable detail the scope and method of the agency's search. Perry v. Block, 684 F.2d 121, 126 (D.C. Cir. 1982). In the absence of contrary evidence, such affidavits or declarations are sufficient to demonstrate an agency's compliance with the FOIA. Id. at 127. If the record "leaves substantial doubt as to the sufficiency of the search, summary judgment for the agency is not proper." Truitt v. Dep't of State, 897 F.2d at 542.

On review of plaintiff's FOIA request, DHS staff determined that his request "does not reasonably describe records that would be maintained by [DHS]." Page Decl. ¶ 6. To the extent that plaintiff sought records pertaining to "domestic intelligence," staff concluded that "such records would have been maintained by the Assistant Secretary for Information and Analysis of the IAIP Directorate." Id. Accordingly, plaintiff's request was referred to the IAIP Chief of Staff's Office for "tasking to Information Analysis (IA) offices to accomplish a search of records." Id. ¶ 7. The offices deemed most likely to maintain records responsive to plaintiff's request were: Information Analysis -- Current, Information Analysis -- Departmental, Information Analysis -- Liaison, Information Analysis -- Plans, and Information Analysis -- Requirements. Id.

Defendant describes the IAIP's records by referencing the mission statements of the offices to which plaintiff's FOIA request was referred. See Defendant's Supplemental Submission Re: Its Search for Responsive Documents ("Def.'s Supp."), Declaration of Alisa N. Turner ("Turner Decl.") ¶ 6. The mission of Information Analysis -- Current is "to provide timely, relevant, actionable intelligence to support DHS leadership, our partners, and customers to effectively deter enemy aggression against the Homeland." Turner Decl. ¶ 6. The mission of Informational Analysis -- Departmental is "to maintain awareness of threats to the Homeland in order to produce action-oriented indications and warnings, procedural evaluation, and assessment on terrorist capabilities and intent." Id. Informational Analysis -- Liaison's mission is to "lead and manage the development of an integrated DHS intelligence enterprise that fosters a cooperative environment with our mission partners and builds bridges to enhance relationships and capabilities within the Intelligence Community and domestic security realm." Id. Lastly, the mission of Informational Analysis -- Requirements is "to manage and leverage collection, production, and dissemination processes to continuously drive the sharing of information and intelligence." Id.

Staff at these offices were instructed "to search paper records, emails, and other electronic records and files utilizing 'Toledo Ohio Election Conspiracy Theory' as the search criteria." Page Decl. ¶ 7. But they were not limited to using the phrase "Toledo Ohio Election Conspiracy Theory" as a search term; rather, "it was within each individual's discretion to determine what search terms to use to reasonably locate any responsive documents." Turner Decl. ¶ 7. IAIP's paper files were "decentralized, so all personnel were required to participate in the search for responsive records" by searching papers in their respective offices, their computer hard drives, and electronic mail ...

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