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National Security Archive v. Central Intelligence Agency

July 14, 2008

NATIONAL SECURITY ARCHIVE, PLAINTIFF,
v.
THE CENTRAL INTELLIGENCE AGENCY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Gladys Kessler United States District Judge

MEMORANDUM OPINION

Plaintiff National Security Archive(the "Archive") brings this action against the Central Intelligence Agency (the "CIA"), General Michael V. Hayden, in his official capacity as Director of the CIA, and Scott A. Koch, in his official capacity as Information and Privacy Coordinator of the CIA (collectively "Defendants"). This matter is before the Court on the Archive's Motion for Summary Judgment [Dkt. No. 12] and Defendants' Motion to Dismiss [Dkt. No. 15]. Upon consideration of both Motions, their Oppositions, Replies, and the entire record herein, and for the reasons stated below, Defendants' Motion to Dismiss is granted, and accordingly the Archive's Motion for Summary Judgment is denied.

I. BACKGROUND*fn1

This case arises under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, as amended by the Freedom of Information Act of 1986 ("FIRA"), Pub. L. No. 99-570, § 1801-04, 100 Stat. 3207-48, 48-50. The Archive alleges that Defendants violated the FOIA by failing and refusing to treat the Archive as a "representative of the news media" (Count I); violated the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701-706, by "adopting, interpreting, and applying the CIA regulations defining 'representative of the news media' and 'news' in a manner that is arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with law, and lacking in substantial evidence or factual basis" (Count II); and violated the APA relying on CIA regulations that "are arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with law" (Count III).

The Archive brings this action against the Defendants seeking a judgment: (1) declaring that the Archive is entitled to preferential status as a "representative of the news media" for purposes of assessing FOIA processing fees; (2) declaring that the CIA's determinations to the contrary and its continuing policy and practice of refusing to waive search fees for the Archive's FOIA requests violate the FOIA and the APA; (3) enjoining the CIA to treat the Archive as a representative of the news media for existing and future requests that are not made for commercial uses; (4) declaring invalid and enjoining enforcement of regulations relied upon by the CIA to determine that the Archive is not a "[r]epresentative of the news media," including but not limited to 32 C.F.R. § 1900.02(h)(3); (5) providing further injunctive and equitable relief requiring the CIA immediately to process the Archive's previously submitted requests for records, to accord those requests the place in the processing queue that they would have had if the CIA had not refused to process the requests without the Archive's agreement to pay search fees, and to disclose improperly withheld records; and (6) to reimburse the Archive for all wrongfully assessed processing fees (including but not limited to search fees) that the Archive pays or has paid prior to resolution of this action. Compl. at 4. The Archive requests that the Court retain jurisdiction over this matter until Defendants have fulfilled all of their statutory, regulatory, and Court-ordered obligations, and also seeks attorneys' fees. Compl. at 24.

The events giving rise to this lawsuit began in October of 2005, when the CIA halted its presumptive treatment of the Archive as a "representative of the news media" under the FIRA and instead requested that the Archive prove its news media status for each of 42 separate FOIA requests. Compl. at 12-13. In March 2006, the CIA retroactively denied the Archive news media status in connection with one of its requests that originally had been accorded news media status when submitted in 1999, bringing the total of contested requests to 43.

Each request stated that the Archive qualified for waiver of search and review fees as a representative of the news media and that the request was made as part of a scholarly and news research project and not for commercial use.*fn2 The CIA provided various reasons for refusing to treat the Archive's requests as having been made by a representative of the news media. All of its reasons were based on the CIA's stated conclusion that the content of the requests did not meet the definition of "news" set forth in the applicable CIA regulations, 32 C.F.R. § 1900.02(h)(3), and therefore that the Archive did not qualify as a "representative of the news media." Compl. at 13-14.

The Archive alleges that in failing to treat it as a representative of the news media, Defendants departed from 15 years of settled practice without any reasonable explanation. The Archive also alleges that Defendants' refusal was contrary to law, citing the Court of Appeals' decision in Nat'l Security Archive v. U.S. Dep't of Defense, 880 F.2d 1381 (D.C. Cir. 1989), in which it held that certain publication activities of the Archive qualified the organization as a "representative of the news media" under FIRA. The Archive also relied on Judge Jack Penn's 1990 Memorandum Order in Nat'l Security Archive v. CIA, in which he enjoined the CIA from denying the Archive's "pending fee waiver requests on the ground that [the Archive] is a 'commercial requester.'" Judge Penn also ordered the CIA to treat the Archive "as a 'representative of the news media,' within the meaning of 5 U.S.C. 552(a)(4)(A)(ii)(II)." Civ. No. 88-0501 (D.D.C. Jun. 30, 1990), at 1,2.

On September 8, 2006, Defendants notified the Archive that the CIA had reconsidered and withdrawn its previously-issued decisions respecting denial of news media representative status and the imposition of search fees for the requests at issue. See Defs.' Mot. to Dismiss at 2. Defendants further informed the Archive that the CIA was issuing a new decision with respect to the FOIA requests at issue, granting the Archive news media representative status for those requests, and granting the Archive news media representative status with respect to all future FOIA requests, so long as the requests were not for commercial purposes and complied with the requirements of 5 U.S.C. § 552. Id. at 2-3. Defendants also noted the likely revision of 32 C.F.R. § 1900.02(h)(3) to reflect the Office of Management and Budget ("OMB") guidelines.*fn3 On July 18, 2007, the CIA did revise the regulation at issue, changing its definition of "news" to match that found in the OMB guidelines. Id. at 3; see also Defs.' Not. of Supplemental Auth. [Dkt. No. 22].

II. STANDARD OF REVIEW

Under Rule 12(b)(1) of the Federal Rules of Civil Procedure, the plaintiff bears the burden of proving by a preponderance of the evidence that the Court has subject matter jurisdiction to hear its case. See Jones v. Exec. Office of President, 167 F. Supp. 2d 10, 13 (D.D.C. 2001). In reviewing a motion to dismiss for lack of subject matter jurisdiction, the Court must accept as true all of the factual allegations set forth in the Complaint; however, such allegations "will bear closer scrutiny in resolving a 12(b)(1) motion than in resolving a 12(b)(6) motion for failure to state a claim." Wilbur, 273 F. Supp. 2d. at 122 (citations and quotations omitted). The Court may consider matters outside the pleadings. See Herbert v. Nat'l Acad. of Sciences, 974 F.2d 192, 197 (D.C. Cir. 1992). The Court may also rest its decision on the Court's own resolution of disputed facts. Id.

III. ANALYSIS

Defendants allege that the grant of the 43 FOIA requests at issue, the CIA's statement that it will treat the Archive as a news media representative in the future, and the CIA's revision of the relevant regulations moot the instant civil action. To prevail on mootness grounds, a defendant must show that it is "absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur." Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000) (internal quotations and citations omitted).

Defendants have met that burden with respect to the 43 FOIA requests. The CIA has granted, subsequent to the Archive's filing of this suit, the Archive's request for news media representative status, has not charged fees for production of the requested documents, and has accorded the requests the place they would otherwise occupy in the Agency's FOIA queue. Therefore, all claims based upon the alleged wrongful withholding of news media representative status in connection with those 43 FOIA requests must be dismissed. Accordingly, the Archive's request for injunctive and equitable relief requiring the CIA immediately to ...


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