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James Madison Project v. Central Intelligence Agency

March 26, 2009


The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge

Document No. 9



This matter comes before the court on the defendant's motion for summary judgment. The plaintiff -- a nonprofit organization created to educate the public on issues relating to intelligence gathering, secrecy policies, national security and government wrongdoing -- submitted a request to the defendant under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, seeking copies of guidelines, regulations or policy memoranda pertaining to the operation of the Central Intelligence Agency's ("CIA") Publications Review Board ("PRB"). The PRB is an "internal administrative component charged with the responsibility of reviewing the written documents to ensure that classified information is not inadvertently disclosed while also seeking to avoid infringing upon the First Amendment rights of the writer." Pl.'s Opp'n at 1. The defendant produced documents responsive to the plaintiff's request, but also withheld some responsive materials, claiming four of the exemptions enumerated in FOIA. The defendant has filed a motion for summary judgment, asserting that it has produced all of the information that FOIA requires. The plaintiff opposes the defendant's motion. Based on the court's determination that the defendant's search was reasonable, that it produced some, but not all, non-exempt documents and that it properly segregated exempt from non-exempt documents, the court grants in part and denies in part the defendant's motion for summary judgment.


The plaintiff submitted a FOIA request to the defendant in June 2007 seeking "copies of all internal Central Intelligence Agency ('CIA') documents constituting guidelines, regulations or policy memoranda pertaining to the creation and operation of the [PRB]." Def.'s Mot. at 2.*fn1

After the defendant notified the plaintiff that it would be unable to respond to the FOIA request within the statutory time limit because of a backlog of FOIA cases, the plaintiff filed the instant suit in July 2007. See Compl. The parties jointly agreed that the defendant would process and release any non-exempt materials responsive to the plaintiff's request on or before January 11, 2008. Def.'s Mot. at 2.

On that date, the defendant produced nine documents that it had partially redacted based on four of the exemptions established in FOIA: 5 U.S.C. § 552(b)(1) ("Exemption 1"), 5 U.S.C. § 552(b)(2) ("Exemption 2"), 5 U.S.C. § 552(b)(3) ("Exemption 3") and 5 U.S.C. § 552(b)(5) ("Exemption 5"). Id. at 2-3. The defendant also withheld three documents in their entirety based on Exemptions 1, 3 and 5. Id. at 3. The plaintiff then identified seven perceived deficiencies in the defendant's production of responsive documents, and in May 2008, "in order to avoid protracted litigation in this case," the defendant produced an additional eleven documents, which it partially redacted based on Exemptions 2, 3 and 5. Id. at 3-4. In addition, "to provide Plaintiff with as complete a response as possible," the defendant searched for versions of the defendant's PRB regulation that had since been rescinded. Id. at 4-5. The defendant had originally produced only the current version of the regulation. Id. at 4. The renewed search yielded twelve rescinded versions of the regulation, six of which the defendant produced in their entirety and six of which the defendant produced in redacted form. Id. at 5.

The defendant has moved for summary judgment, asserting that it conducted a reasonable search for responsive records, id. at 7-11; it properly invoked Exemptions 1, 2, 3 and 5, id. at 11-31; and it reasonably segregated exempt from non-exempt documents, id. at 31. The plaintiff opposes the defendant's motion, claiming that the search was inadequate, Pl.'s Opp'n at 6-11; the defendant failed to justify its invocation of the exemptions, id. at 11-34; and the defendant did not adequately segregate exempt information from non-exempt information, id. at 35-36. Alternatively, the plaintiff requests that the court allow it to conduct discovery to ascertain the reasonableness of the defendant's search for responsive records and the appropriateness of the defendant's withholdings, id. at 36-39, a request the defendant opposes, Def.'s Reply at 21-24. The court turns now to the parties' arguments.


A. Legal Standard for Summary Judgment in FOIA Cases

Summary judgment is appropriate 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); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Diamond v. Atwood, 43 F.3d 1538, 1540 (D.C. Cir. 1995). In deciding whether there is a genuine issue of material fact, the court is to view the record in the light most favorable to the party opposing the motion, giving the non-movant the benefit of all favorable inferences that can reasonably be drawn from the record and the benefit of any doubt as to the existence of any genuine issue of material fact. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157-59 (1970). To determine which facts are "material," a court must look to the substantive law on which each claim rests. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A "genuine issue" is one whose resolution could establish an element of a claim or defense and, therefore, affect the outcome of the action. Celotex, 477 U.S. at 322; Anderson, 477 U.S. at 248.

FOIA affords the public access to virtually any federal government record that FOIA itself does not specifically exempt from disclosure. 5 U.S.C. § 552; Vaughn v. Rosen, 484 F.2d 820, 823 (D.C. Cir. 1973). FOIA confers jurisdiction on the federal district courts to order the release of improperly withheld or redacted information. 5 U.S.C. § 552(a)(4)(B). In a judicial review of an agency's response to a FOIA request, the defendant agency has the burden of justifying nondisclosure, and the court must ascertain whether the agency has sustained its burden of demonstrating that the documents requested are exempt from disclosure under FOIA and that the agency has adequately segregated exempt from non-exempt materials. 5 U.S.C. § 552(a)(4)(B); Al-Fayed v. CIA, 254 F.3d 300, 305 (D.C. Cir. 2001); Summers v. Dep't of Justice, 140 F.3d 1077, 1080 (D.C. Cir. 1998); Mead Data Cent., Inc. v. Dep't of Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977). An agency may meet its burden by providing the requester with a Vaughn index, adequately describing each withheld document and explaining the reason for the withholding. Summers, 140 F.3d at 1080; King v. Dep't of Justice, 830 F.2d 210, 224 (D.C. Cir. 1987); Vaughn, 484 F.2d 820 (fashioning what is now commonly referred to as a "Vaughn index").

The court may grant summary judgment to an agency on the basis of its affidavits if they:

[(a)] describe the documents and the justifications for nondisclosure with reasonably specific detail, [(b)] demonstrate that the information withheld logically falls within the claimed exemption, and [(c)] 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).

B. The Court Grants in Part and Denies in Part the Defendant's Motion for Summary Judgment

1. Adequacy of the Defendant's Search

a. Legal Standard for FOIA Adequacy of Agency Search

"A requester dissatisfied with the agency's response that no records have been found may challenge the adequacy of the agency's search by filing a lawsuit in the district court after exhausting any administrative remedies." Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 326 (D.C. Cir. 1999). To prevail on summary judgment, "the agency must demonstrate beyond material doubt that its search was reasonably calculated to uncover all relevant documents." Nation Magazine, Wash. Bureau v. U.S. Customs Serv., 71 F.3d 885, 890 (D.C. Cir. 1995) (internal quotations and citations omitted). An agency must search for documents in good faith, using methods that are reasonably expected to produce the requested information. Valencia-Lucena, 180 F.3d at 326 (citing Oglesby v. U.S. Dep't of Army ("Oglesby I"), 920 F.2d 57, 68 (D.C. Cir. 1990)). The principal issue is not whether the agency's search uncovered responsive documents, but whether the search was reasonable. Oglesby I, 920 F.2d at 67 n.13 (citing Meeropol v. Meese, 790 F.2d 942, 952-53 (D.C. Cir. 1986)); Moore v. Aspin, 916 F. Supp. 32, 35 (D.D.C. 1996). The agency need not search every record in the system or conduct a perfect search. SafeCard Servs., Inc. v. Sec. & Exch. Comm'n, 926 F.2d 1197, 1201 (D.C. Cir. 1991); Meeropol, 790 F.2d at 952, 956. Nor need the agency produce a document if "the agency is no longer in possession of the document[] for a reason that is not itself suspect." SafeCard Servs., 926 F.2d at 1201.

Instead, to demonstrate reasonableness, the agency must set forth sufficient information in affidavits for the court to determine, based on the facts of the case, that the search was reasonable. Nation Magazine, 71 F.3d at 890 (citing Oglesby I, 920 F.2d at 68). While an agency's affidavits are presumed to be in good faith, a plaintiff can rebut this presumption with evidence of bad faith. SafeCard Servs., 926 F.2d at 1200. But such evidence cannot be comprised of "purely speculative claims about the existence and discoverability of other documents." Id. If the record raises substantial doubts regarding the agency's efforts, "particularly in view of well defined requests and positive indications of overlooked materials," summary judgment is not appropriate. Valencia-Lucena, 180 F.3d at 326 (internal quotations and citations omitted).

b. The Defendant's Search Was Reasonable

The court may rely on the declarations of Martha M. Lutz, Information Review Officer for the Director of Central Intelligence Area of the CIA ("the Lutz declaration"), and Joseph W. Lambert, Director of Information Management Services within the Office of the Chief Information Officer of the CIA ("the Lambert declaration"), as well as the Vaughn index to determine whether the defendant's searches for documents responsive to the plaintiff's request were reasonable. Founding Church of Scientology v. Nat'l Sec. Agency, 610 F.2d 824, 836 (D.C. Cir. 1979). The Lutz declaration explains the defendant's performance of the initial search as follows: upon receipt of the plaintiff's FOIA request, the defendant determined that seven divisions of the CIA were most likely to possess records responsive to the plaintiff's request.*fn2

Def.'s Mot., Ex. 1 ("Lutz Decl.") ¶ 28. Therefore, the defendant ordered those divisions to search their records systems for the current version of the PRB regulation, as well as for "copies of all internal [CIA] documents constituting guidelines, regulations or policy memoranda pertaining to the creation and operation of the [PRB]."*fn3 Id. Although the initial search yielded twelve responsive documents, the plaintiff was dissatisfied with the search and wrote the defendant a letter identifying several perceived deficiencies in the search. Id. ¶ 30. In response, the defendant conducted an additional search for PRB-related items. Id. ¶¶ 31-32. The defendant also searched for earlier versions of PRB regulations that the defendant had since rescinded. Id. ¶ 18. These two additional searches turned up documents that the initial search had not. Id.

The defendant asserts that its searches for records responsive to the plaintiff's request were reasonable. Id. at 7-11. Indeed, it claims it "went far beyond what was necessary to fulfill its [search] obligations" by conducting the two additional searches after the plaintiff identified the perceived deficiencies in the defendant's initial search. Id. at 8. In the defendant's view, the fact that it undertook the additional searches even though it was not required to "weighs even more heavily in favor of the adequacy of the search." Def.'s Reply at 2.

The plaintiff believes there are still deficiencies in the defendant's search for responsive records, notwithstanding the additional searches that the defendant conducted in response to the plaintiff's concerns. Pl.'s Opp'n at 6-11. Specifically, the plaintiff points out that the defendant restricted its "follow-up" search to the PRB, only one of the seven divisions whose records the defendant searched originally. Id. at 9. The defendant responds that because the plaintiff focused on the PRB when complaining that the initial search was inadequate, "the PRB was the logical place in which to undertake any additional search" for responsive documents. Def.'s Reply at 3. The plaintiff also complains that the defendant should have sought assistance from two former Chairmen of the PRB in order to locate records responsive to the plaintiff's request. Pl.'s Opp'n ...

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