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National Security Archive v. Central Intelligence Agency

November 4, 2008


The opinion of the court was delivered by: Gladys Kessler U.S. District Judge


This matter is before the Court on Plaintiff's Motion for Reconsideration. Upon consideration of the Motion, Opposition, Reply, and the entire record herein, and for the reasons stated below, Plaintiff's Motion for Reconsideration is granted.


In 2006, the National Security Archive ("the Archive") brought suit against the Central Intelligence Agency ("CIA") and its officials (collectively "Defendants") in connection with the Defendants' treatment of the Archive 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. Prior to 2005, Plaintiff had been granted "representative of the news media status" under FIRA, which entitled it to a fee-waiver on its FOIA requests. National Security Archive v. Central Intelligence Agency, et al., Civ. No. 06-1080 (D.D.C. July 14, 2008) ("Mem. Op."), at 2. In 2005, the CIA denied the Archive this status. Instead, the CIA placed Archive in the "all other" fee category and made it pay for FOIA requests. See Mem. Op. at 5; see also Pl.'s Mot. for Reconsideration ("Pl.'s Mot.") at 8; Defs.' Opp'n to Pl.'s Mot. for Reconsideration ("Defs.' Opp'n") Ex. A.

During the course of this litigation, the CIA indicated that it had acted in error, and voluntarily granted the Archive "news media" status. As a result, the Court held that the Archive's claims regarding past FOIA requests were mooted. Mem. Op. at 7. In addressing the Archive's claim about future treatment--specifically, its plea that the Court order the CIA to avoid future misconduct--the Court found that the issue was unripe. Id. at 8. The case was then dismissed for lack of subject matter jurisdiction.

Shortly after dismissal, Plaintiff filed its Motion and included evidence that the CIA had resumed its practice of mis-classifying the Archive in the period leading up to and following the Court's July 14, 2008 decision, Pl.'s Mot. at 8-9, even though these mis-classifications were often accompanied by discretionary fee waivers.*fn1 Id. at 9. In response to the Motion for Reconsideration, the Defendants acknowledged that the agency's conduct was in error, issued an apology for the mistake, and reiterated their promise to categorize the Archive as a representative of the news media. See Defs.' Opp'n at 2; Id. Ex. A. Despite these representations,*fn2 the CIA has continued to deny the Archive that status. After filing an Opposition to the Plaintiff's Motion, and attaching a letter of apology, the CIA immediately resumed its practice of denying the Archive "news media" status. Pl.'s Reply in Further Support of its Mot. for Reconsideration ("Pl.'s Reply") Ex. K.


A motion for reconsideration should be granted only if the court "finds that there is an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice." Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996) (internal citations and quotations omitted). In other words, the moving party must show "new facts or clear errors of law which compel the court to change its prior position." Nat'l Ctr. for Mfg. Sciences v. Dep't of Def., 199 F.3d 507, 511 (D.C. Cir. 2000) (internal citation omitted).


A. Plaintiff's Claims Are Not Moot

In its Memorandum Opinion of July 14, 2008, the Court concluded that the CIA's voluntary cessation of the alleged misconduct mooted the claims against it. See Mem. Op. at 7. At that time, the CIA made it "absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur." Id. at 7 (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000) (internal quotations and citations omitted)).

However, new evidence introduced by the Plaintiff---most importantly, that the CIA has continued to deny the Archive "news media" status---demonstrates that this "heavy burden" is no longer satisfied. Community Hous. Trust v. Dep't of Consumer & Regulatory Affairs, 257 F. Supp. 2d 208, 218 (D.D.C. 2003) (quotations and citations omitted). This evidence,*fn3 which came to light as recently as September 11, 2008, Pl.'s Reply Ex. K, compels a reconsideration of the initial decision in this case. See Nat'l Ctr. for Mfg. Sciences, 199 F.3d at 511.

Despite admissions that it had not complied with FOIA, and despite assurances that it would in the future comply with the law, Defs.' Opp'n Ex. A, the CIA has continued the very conduct which it has admitted was illegal. It has twice made highly misleading representations to the Archive, as well as to this Court. Such extraordinary misbehavior can no longer insulate it from accountability. Since the Defendants' past actions strongly suggest that their alleged misconduct will recur, the CIA's promises to voluntarily halt its behavior no longer moot the issue. See Laidlaw, 528 U.S. at 189 ("It is well settled that a defendant's voluntary cessation of a challenged practice does not deprive a ...

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