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National Security Counselors v. Central Intelligence Agency

March 28, 2012

NATIONAL SECURITY COUNSELORS PLAINTIFF,
v.
CENTRAL INTELLIGENCE AGENCY, DEPARTMENT OF DEFENSE DEFENDANTS.



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

MEMORANDUM OPINION

Plaintiff National Security Counselors ("NSC") is a non-profit organization that disseminates information to the public regarding government activity related to national security. NSC made Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, requests to the Central Intelligence Agency ("CIA") and the Department of Defense ("DOD") relating to the Defendants' Mandatory Declassification Review ("MDR") programs. Unsatisfied with the responses it received, NSC sued both the CIA and the DOD. The CIA moves for summary judgment on Counts 1 and 2 of the First Amended Complaint. The Court will deny the CIA's motion for summary judgment.

I. FACTS

NSC filed two FOIA requests with the CIA relating to its MDR program. The first request was submitted on April 23, 2010 and the second on November 30, 2010.

A. First Request (No. F-2010-01033)

On April 23, 2010, NSC submitted a FOIA request to the CIA for "copies of all current [CIA] regulations, policy statements, guidelines, memoranda, training materials, handbooks, manuals, checklists, worksheets, instructions, and similar documents on the topic of [MDR]." Mot. Summ. J., Declaration of Martha Lutz [Dkt. # 22-1] ("Lutz Decl."), Ex. A. In this letter, NSC specified that the "request is limited to documents in current use as of 23 April 2010." Id. The CIA acknowledged receipt of this request on May 5, 2010 and designated it as Request No. F-2010-01033. Id.,Ex. B. NSC subsequently - by letter dated May 7, 2010 - clarified the date limitation placed on its request, stating that "current" should not be limited to April 23, 2010 and that "any records that represented policies or practices that were implemented after [April 23, 2010]" should also be deemed responsive. Id., Ex. C.

The CIA follows a standard procedure when responding to FOIA requests. The Information Management Services ("IMS") serves as the "initial reception point for all FOIA requests made to the CIA." Id. ¶ 19. Once a request is received, an IMS professional analyzes it to determine which of five agency directorates is reasonably likely to contain records responsive to the particular request. Id. The CIA's records systems are "decentralized and compartmentalized," making it necessary for an Information Review Officer ("IRO") to determine which components within each of the identified directorates are reasonably likely to contain responsive records. Id. ¶ 20.Once the components are identified, the IRO works with personnel from each component to devise a search strategy tailored to the particular configuration of the components' records systems, including which records systems to search and which search strategies to employ. Id.Records located through such searches are then reviewed to determine whether they are responsive and whether any FOIA exemption(s) applies. Id.

Request No. F-2010-01033 was processed according to this procedure. Id. ¶ 24. IMS professionals determined that the Director of Central Intelligence Area "Director's Area" was the only one of the five directorates "reasonably likely" to contain responsive materials. Id. ¶¶ 1, 24, 26. The Director's Area "maintains all internal Agency-wide regulatory issuances in one searchable records system." Id. ¶ 30. Among the various components of the Director's Area is the Office of the Chief Information Officer, which includes the IMS. Id. ¶ 25. The IMS is responsible for administering the MDR program and maintains records related to the program. Id. The Director's Area conducted a search of the agency-wide records system and also searched "other IMS records systems" for the requested MDR materials. Id. ¶ 30.

The search produced one responsive document, 32 C.F.R. § 1908, which is a CIA regulation on MDR. CIA issued a final response to Request No. F-2010-01033 on May 24, 2011, informing NSC that a thorough search had been conducted and that one responsive document was located. Id. ¶¶ 11, Ex. D. The MDR regulation, 32 C.F.R. § 1908, was released to NSC in full. Id. ¶ 11, Ex. E.

B. Second Request (No. F-2011-00396)

On November 30, 2010, NSC submitted an additional FOIA request to the CIA asking for a copy of the "special procedures for the [Mandatory Declassification] review of information pertaining to intelligence activities . . . or intelligence sources or methods' developed by the Director of Central Intelligence pursuant to Sections 3.6(e) of Executive Order 12,958 and 3.5(e) of Executive Order 13, 292." Lutz Decl., Ex. F. This request was acknowledged on December 20, 2010.

Like the first request, this request was assigned to the Director's Area to search for responsive documents because no other areas were likely to have responsive documents. According to Ms. Lutz, "IMS searched relevant record systems containing all files reasonably likely to contain responsive materials and located no records responsive to Plaintiff's request." Lutz Decl. ¶ 33. Furthermore, Ms. Lutz concludes that "no search of CIA records would be likely to locate 'special procedures for the [Mandatory Declassification] review of information pertaining to intelligence sources or methods developed by the Director of Central Intelligence pursuant to Sections 3.6(e) of Executive Order 12,958 and 3.5(e) of Executive Order 13,292' because . . . no such special procedures were ever developed by the then Director of Central Intelligence under these provisions." Id. ¶ 34.

On January 27, 2011, the CIA provided a final response to NSC stating that the CIA did not locate any documents responsive to NSC's request. Plaintiff appealed the adequacy of the CIA's search to the CIA's Release Panel. On March 15, 2011, the Release Panel denied NSC's appeal and found that the ...


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