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National Security Counselors v. Central Intelligence Agency

United States District Court, District of Columbia

October 17, 2012

NATIONAL SECURITY COUNSELORS, Plaintiff,
v.
CENTRAL INTELLIGENCE AGENCY, et al., Defendants.

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Kelly Brian McClanahan, National Security Counselors, Arlington, VA, for Plaintiff.

Ryan Bradley Parker, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

BERYL A. HOWELL, District Judge.

The plaintiff, National Security Counselors (" NSC" ), brings three related actions against six federal intelligence and defense agencies, claiming numerous violations of the Freedom of Information Act (" FOIA" ), 5 U.S.C. § 552 et seq., and the Administrative Procedure Act (" APA" ), 5 U.S.C. § 701 et seq., and seeking declaratory and injunctive relief under the FOIA, the APA, the Declaratory Judgment Act, 28 U.S.C. § 2201, the Mandamus Act, 28 U.S.C. § 1361, and the All Writs Act, 28 U.S.C. § 1651. The gravamen of the plaintiff's claims is that these intelligence and defense agencies— principally the Central Intelligence Agency (" CIA" )— have improperly handled the plaintiff's requests for a

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variety of information under the FOIA. Although this allegedly improper agency behavior relates to a number of specific FOIA requests made to the defendants, it has manifested more broadly in a series of what the plaintiff alleges to be policies, practices, or standard operating procedures (" SOPs" ) of the CIA that constitute ongoing violations of the FOIA or the APA.[1] In essence, the plaintiff alleges a series of policies or practices by the CIA that have endeavored systematically to extinguish FOIA requests at their inception, before the agency's duty to search or make withholding decisions are triggered and before the agency must provide administrative remedies. In their totality, the allegations in these related actions paint a picture of the CIA's desire to minimize the substance of its internal, administrative consideration of FOIA requests by crafting mechanisms that limit FOIA requesters' access to such consideration, which in turn has tested the mettle, commitment, and resources of requesters like the plaintiff. The primary question presented by the CIA's motions to dismiss the policy-or-practice claims in all three actions is whether such mechanisms are permitted by the FOIA.

I. BACKGROUND

The plaintiff in these related actions is a not-for-profit organization located in Arlington, Virginia, which was chartered in July 2009 by an attorney named Kelly McClanahan.[2] According to its website, NSC performs four primary functions: (1) " to lawfully acquire from the government material related to national security matters and distribute it to the public" ; (2) " to use this material in the creation of original publications discussing the respective subjects" ; (3) " to advocate for intelligent reform in the national security and information and privacy arenas" ; and (4) " to provide a low-cost alternative to certain deserving clients involved in security law or information and privacy law-related proceedings." See NAT'L SEC. COUNSELORS, http:// national security law. org/ (last visited Oct. 17, 2012). To achieve these functions, the plaintiff frequently requests information under the FOIA from government agencies in the defense and intelligence sectors.[3]

The instant actions involve challenges to both specific denials of records as well as overarching policies and practices of the CIA that are alleged to violate the FOIA. The CIA's motions to dismiss currently pending before the Court, however, deal almost exclusively with the overarching policies and practices alleged by the plaintiff. At issue are twelve separate alleged policies or practices of the CIA, which the

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plaintiff claims are contrary to the CIA's duties under the FOIA. Specifically, the plaintiff alleges that the CIA has policies or practices of:

1. Refusing to recognize assignments of rights in FOIA requests (" Assignment of Rights Policy" ). See Compl. ¶¶ 19-22, NSC I.
2. Refusing to process requests for " aggregate data," e.g., a database listing of FOIA requests by fee category (" Aggregate Data Policy" ). See FAC ¶¶ 12-16, NSC II.
3. Refusing to allow requesters the right of administrative appeal when their FOIA requests are deemed improper (" Administrative Appeals Policy" ). See FAC ¶ ¶ 27-31, NSC II.
4. Applying an overbroad definition of the " reasonably describes" requirement contained in 5 U.S.C. § 552(a)(3)(A) (" Reasonably Describe Policy" ). See FAC ¶¶ 57-61, NSC II.
5. Failing to follow the requirement in 32 C.F.R. § 1900.12 that, if a FOIA request is deemed improper, the agency must " work with, and offer suggestions to, the potential requester in order to define a request properly" (" Work With Policy" ). See FAC ¶¶ 72-77, NSC II.
6. Imposing the date of the CIA's response letter to a requester as the cut-off date on all FOIA request searches (" Cut-Off Date Policy" ). See FAC ¶¶ 112-115, NSC II.
7. Applying a blanket exemption to all information pertaining to the CIA's processing of FOIA and Privacy Act requests (" Blanket Processing Notes Exemption Policy" ). See FAC ¶¶ 33-37, NSC III.
8. Applying a blanket exemption to all FOIA and Privacy Act reference materials ( e.g., training handbooks, manuals, guidelines) (" Blanket Reference Material Exemption Policy" ). See FAC ¶¶ 79-81, NSC III.
9. Categorically issuing Glomar responses to requests for information pertaining to FOIA and Mandatory Declassification Review requests referred to the CIA by other agencies (" Glomar Response Policy" ). See FAC ¶¶ 94-98, NSC III.
10. Refusing to provide estimated dates of completion for FOIA requests (" Non-Provision of Completion Date Policy" ). See FAC ¶¶ 100-107, NSC III.
11. Refusing to identify records withheld in their entirety during the administrative stage of FOIA processing (" Withheld Document Non-Identification Policy" ). See FAC ¶¶ 118-122, NSC III.
12. Invoking FOIA exemptions on a document level without indicating which exemptions apply to particular redactions at the administrative stage of FOIA processing (" Document-Level Exemption Policy" ). See FAC ¶¶ 128-133, NSC III.

The Court will first discuss the factual allegations related to each of these purported policies or practices before discussing the legal issues presented by the CIA's partial motions to dismiss.

A. Assignment of Rights Policy

The plaintiff complains that the CIA refuses to recognize the assignment of rights related to FOIA requests— an assignment necessitated in this particular case by Mr. McClanahan's change in employment. Prior to chartering NSC, Mr. McClanahan served as the Director of FOIA Operations

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at another not-for-profit organization called the James Madison Project (" JMP" ).[4] According to the plaintiff, it shares with JMP " virtually all the same purposes and interests," except that NSC represents clients and JMP does not. See Pl.'s 443 Opp'n at 25. Indeed, JMP's stated mission is to " promote government accountability and the reduction of secrecy, as well as to educate the public on issues relating to intelligence and national security through means of research, advocacy and the dissemination of information." See JAMES MADISON PROJECT, http:// www. james madison project. org (last visited Oct. 17, 2012). On April 10, 2008, JMP submitted a FOIA request to the CIA for eleven articles originally published in the CIA in-house journal Studies in Intelligence. Compl. ¶ 6, NSC I. On May 14, 2008, the CIA acknowledged receipt of JMP's request and notified JMP that no fees would be assessed for the request. Id. ¶ 7. On February 27, 2009, the CIA released ten of the articles requested by JMP. Four articles were released in full and six were released with redactions under FOIA Exemptions 1, 2, and 3. On April 13, 2009, JMP administratively appealed the CIA's invocation of these exemptions. Id. ¶¶ 8-9.

Several months after the administrative appeal of the withholding decisions was filed, on July 31, 2009, Mr. McClanahan left JMP to charter NSC and serve as its Executive Director. Id. ¶ 11. Because the request for the Studies in Intelligence articles were a " pet project[ ]" of Mr. McClanahan's, see Pl.'s 443 Opp'n at 25, on October 7, 2009, JMP notified the CIA that it was assigning all rights, benefits and interests in that request to NSC, including the right to " pursue any administrative or legal methods at [NSC's] disposal" relative to this request and also " surrendering any claims it may have" with respect to this request. Id. Ex. Q at 1, ECF No. 12-18; Compl. ¶ 12, NSC I. While the administrative appeal of the exemptions claimed on the Studies in Intelligence articles was pending, the plaintiff sent a letter to the CIA on May 25, 2010, requesting that the appeal be amended to include a challenge to a redaction in one of the articles since the agency had not claimed an exemption for this redaction, and the redaction had been omitted from the original appeal. Compl. ¶ 13, NSC I. Prior to sending this letter, the plaintiff had begun to suspect that the CIA was refusing to recognize JMP's assignment of rights (the " Assignment" ), and the plaintiff therefore requested assistance from the CIA's Office of Government Information Services (" OGIS" ) to clarify the CIA's position on the Assignment. Id. ¶ 14. The OGIS responded to the plaintiff on June 8, 2010, after consulting with the CIA's Office of General Counsel (" OGC" ), informing the plaintiff that it was the CIA's policy not to accept assignments of rights with regard to FOIA requests and suggesting that the plaintiff would need to file new FOIA requests for the same records in order to pursue them administratively. Id. ¶ 15.

The plaintiff alleges in Count One of the Complaint in No. 11-443 that it has a legal right to the information in the Studies in Intelligence articles that it requested, by virtue of the Assignment, and it also challenges the CIA's Assignment of Rights Policy in Count Two, alleging that the policy is in violation of the FOIA and the APA. Id. ¶¶ 17, 19, 22. As a result, the plaintiff seeks a full disclosure of the Studies in Intelligence articles originally requested by JMP,[5] a declaration that the

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CIA's policy of refusing to recognize assignments of rights violates the FOIA and/or the APA, and an injunction compelling the CIA to accept assignments of rights. Compl. at 7, NSC I.

B. Aggregate Data Policy

The plaintiff complains that the CIA denied five FOIA requests in 2010 for database records organized into specific categories as detailed in each request, and with respect to four of these requests the plaintiff claims that the CIA denied any administrative appeal rights. Specifically, on July 5, 2010, the plaintiff submitted a FOIA request to the CIA seeking " a record that would indicate the ten individuals responsible for the most FOIA requests submitted (each) in Fiscal Years 2008, 2009, and 2010." FAC ¶ 42, NSC II; Pl.'s 444 Opp'n Ex. A at 1, ECF No. 17-2. The CIA responded on July 22, 2010 that it was declining to process this request, stating: " We have completed a thorough review of your request and have determined that our record systems are not configured in a way that would allow us to perform a search reasonably calculated to lead to the responsive record without an unreasonable effort." Pl.'s 444 Opp'n Ex. A at 4. The CIA's response further stated: " The FOIA does not require federal agencies to perform research, create records or conduct unreasonable searches through a body of material to see if any of it is related to a particular request." Id. The plaintiff did not appeal this determination, and it alleges that if it had submitted an administrative appeal, the CIA would have refused to accept it. FAC ¶ 44, NSC II. In Count Eight of the First Amended Complaint in No. 11-444, the plaintiff maintains that it has a legal right to this requested record and seeks the record's disclosure. Id. ¶ 45.

On August 8, 2010, the plaintiff submitted four FOIA requests to the CIA seeking " database listings of all FOIA requesters from Fiscal Years 2008-2010 according to the fee categories to which CIA assigned them." Id. ¶ 6. In particular, each of these requests sought " a database listing of all the FOIA requesters from FY 2008— present that you have classified as" either " news media," " educational or scientific," " commercial," or " all other." See Pl.'s 444 Opp'n Ex. B at 1, 4, 7, 10, ECF No. 17-3. On September 30, 2010, the CIA acknowledged receipt of these requests and assigned them tracking numbers but informed the plaintiff that it was declining to process the requests, stating that " [t]he FOIA does not require federal agencies to create a record, collect information, conduct research, or analyze data." Id. at 14-17. The plaintiff attempted to administratively appeal these determinations, but the CIA responded on October 21, 2010 that " since we did not provide you with appeal rights, we cannot accept your appeal[s]." Id. at 18-21. In Count One of the First Amended Complaint in No. 11-444, the plaintiff maintains that it has a legal right to these requested records and seeks the records' disclosure. See FAC ¶ 10, NSC II.

In addition to these five specific denials of FOIA requests, the plaintiff also alleges that the " CIA's refusal to process requests for aggregate data represents an ongoing policy, practice, or standard operating procedure (‘ SOP’ )" that violates the FOIA. Id. ¶¶ 12-13. The plaintiff seeks declaratory

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and injunctive relief from this alleged Aggregate Data Policy in Counts Two, Three, and Four of the First Amended Complaint in No. 11-444 under the FOIA, the APA, and the Mandamus Act, respectively. Id. ¶¶ 13, 16, 18-20, 22-25.

C. Reasonably Describe Policy

Next, the plaintiff complains about two FOIA requests made in 2010 and 2011, respectively, that the CIA declined to process for failure to " reasonably describe" the records sought— a decision by the CIA that the plaintiff claims would also result in a denial of administrative appeal rights, although the plaintiff did not test that result by filing any administrative appeals. Specifically, on May 13, 2010, the plaintiff submitted a FOIA request to the CIA seeking " a representative sample of [CIA] analytical reports and memoranda presenting psychological analyses or profiles of foreign government officials, terrorist leaders, international criminals, business figures, and other intelligence targets prepared by the Medical and Psychological Analysis Center (‘ MPAC’ ) or its predecessor Office of Leadership Analysis (‘ OLA’ )." [6] The request specified that a " representative sample" meant: (a) " [o]nly final official reports or memoranda," (b) no more than twenty reports/memoranda from any given year, (c) " [f]our reports/memoranda for each year ... for individuals in each category of intelligence target," and (d) " [r]easonable variety in the intelligence targets wherever possible." Lutz Decl. Ex. M at 1-2. The CIA responded to this request on June 23, 2010, stating that it could not accept the request in its current form because it had not " reasonably describe[d]" the records sought, citing the " breadth and lack of specificity" of the request and " the way in which [the CIA's] records systems are configured." Id. Ex. N at 1, ECF No. 20-3. The CIA's response further encouraged the plaintiff " to refine the scope of your request (such as including a narrower time frame for, and more specific descriptions of, the information you seek) to enable us to conduct a reasonable search for responsive information." Id. Once again, the plaintiff did not appeal this determination, and it alleges that if it had submitted an administrative appeal, the CIA would have refused to accept it. FAC ¶ 49, NSC II. In Count Nine of the First Amended Complaint in No. 11-444, the plaintiff maintains that it has a legal right to this requested record and seeks the record's disclosure. Id. ¶ 50.

Relatedly, on February 16, 2011, the plaintiff submitted a FOIA request to the CIA seeking " all [CIA] records pertaining to the IBM supercomputer named ‘ Watson.’ " Lutz Decl. Ex. O at 1, ECF No. 20-3. The CIA's response to this request on March 2, 2011 was substantially identical to its response to the plaintiff's May 13, 2010 FOIA request, stating that it could not accept the request in its current form because it had not " reasonably describe[d]" the records sought, citing the " breadth and lack of specificity" of the request and " the way in which [the CIA's] records systems are configured." Id. Ex. P at 1, ECF No. 20-3. The CIA's response further encouraged the plaintiff " to refine the scope of your request (such as contracts, if they exist, which would explain records pertaining to ‘ Watson’ ) to enable us to conduct a reasonable search for responsive information." Id. Yet again, the plaintiff did not appeal this determination, and it alleges that if it had submitted an administrative appeal, the CIA would have refused to accept it. FAC ¶ 54, NSC II. In Count Ten of the First

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Amended Complaint in No. 11-444, the plaintiff maintains that it has a legal right to these requested records and seeks the records' disclosure. Id. ¶ 55.

In addition to these two specific denials of FOIA requests, the plaintiff has submitted forty-four other denials by the CIA that rely on the requester's failure to " reasonably describe" the records sought as a basis for declining to process the requests. Pl.'s 444 Opp'n Ex. E at 1-45, 47-51, 53-55. The plaintiff alleges that these refusals to process requests that do not " reasonably describe" records sought is related to the fact that " [i]n a majority of these cases, CIA has cited the configuration of its records systems as a disqualifying factor." FAC ¶ 58, NSC II. These forty-four other denials span nearly four years, from August 1, 2007 to June 27, 2011, and they are in reference to FOIA requests made by the plaintiff as well as a number of other, non-party FOIA requesters, including JMP, MuckRock, Gawker Media, and the National Security Archive. Pl.'s 444 Opp'n Ex. E at 1-45, 47-51, 53-55. The plaintiff alleges that, by relying upon " the configuration of its records systems" in concluding that FOIA requests fail to " reasonably describe" records sought, the CIA's " application of FOIA's ‘ reasonably describe’ requirement is significantly and consistently broader than is allowed by FOIA," which the plaintiff claims is a policy or practice of the CIA that violates the FOIA. FAC ¶¶ 58-59, NSC II. The plaintiff seeks declaratory and injunctive relief from this alleged Reasonably Describe Policy in Counts Eleven, Twelve, and Thirteen of the First Amended Complaint in No. 11-444 under the FOIA, the APA, and the Mandamus Act, respectively. Id. ¶¶ 59, 61, 63-65, 67-70.

D. Administrative Appeals Policy and Work With Policy

As discussed above, when the plaintiff attempted to administratively appeal the CIA's refusal to process the plaintiff's August 8, 2010 FOIA requests seeking " database listings of all FOIA requesters from Fiscal Years 2008-2010 according to the fee categories to which CIA assigned them," the CIA refused to accept the plaintiff's administrative appeal. FAC ¶ 6, NSC II; see also Pl.'s 444 Opp'n Ex. B at 18-21. According to the plaintiff, this was not an isolated incident. The plaintiff has also submitted examples of similar refusals to allow administrative appeals by the CIA in response to three other FOIA requests submitted by two non-party FOIA requesters. See id. Ex C at 2; id. Ex. D. From these examples, the plaintiff alleges that, whenever the CIA refuses to process a FOIA request that it deems " improper" ( e.g., because it does not " reasonably describe" requested records or it seeks " aggregate data" ), the CIA has a policy or practice of refusing to accept administrative appeals from those decisions. See FAC ¶¶ 28-29, NSC II. The plaintiff claims that this Administrative Appeals Policy violates the FOIA, and it seeks declaratory and injunctive relief from the alleged policy in Counts Five, Six, and Seven of the First Amended Complaint in No. 11-444 under the FOIA, the APA, and the Mandamus Act, respectively. FAC ¶¶ 29, 31, 33-35, 37-40, NSC II.

Similarly, the plaintiff alleges that in the " numerous instances in which CIA has refused to process a FOIA request it deemed improper," the CIA has endeavored to " ‘ work with, and offer suggestions to, the potential requester’ " in " virtually none of those circumstances." Id. ¶ 74 (quoting 32 C.F.R. § 1900.12(c)). In support of this claim, the plaintiff cites a series of CIA responses to " improper" FOIA requests that either " contained only six formulaic suggestions" or " did not contain any suggestions at all." See Pl.'s 444 Opp'n Ex. E at 1, 3-51, 53-55.

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The plaintiff claims that this behavior constitutes a policy or practice that violates the CIA's own FOIA regulation, 32 C.F.R. § 1900.12(c), which states: " Communications which do not meet the[ ] requirements [of reasonably describing the records sought and not requiring an unreasonable search] will be considered an expression of interest and the Agency will work with, and offer suggestions to, the potential requester in order to define a request properly." See FAC ¶¶ 73-75. The plaintiff seeks declaratory and injunctive relief from this alleged Work With Policy in Counts Fourteen, Fifteen, and Sixteen of the First Amended Complaint in No. 11-444 under the FOIA, the APA, and the Mandamus Act, respectively. Id. ¶¶ 75, 77, 79-81, 83-86.

E. Cut-Off Date Policy

The plaintiff alleges that " [i]n every response letter [it] has received from CIA, CIA has imposed an arbitrary cut-off date on the search of the date of the response letter, regardless of the nature of the request or how long the search is expected to take." Id. ¶ 112. Although the plaintiff alleges that the CIA imposes this " arbitrary cut-off date" in response to every FOIA request it has ever made to the CIA, the plaintiff has also submitted ten examples of such responses to serve as a " representative sample," all of which were sent to the plaintiff after this action was commenced. Pl.'s 444 Opp'n at 14-15; id. Ex. G. The plaintiff alleges that applying an " arbitrary ‘ date of response’ cut-off date regardless of the nature of the request or the anticipated length of the search" is a policy or practice of the CIA that violates the FOIA, and the plaintiff seeks declaratory and injunctive relief from this alleged Cut-Off Date Policy in Count Twenty-One of the First Amended Complaint in No. 11-444 under the FOIA. FAC ¶¶ 113, 115, NSC II.

F. Withheld Document Non-Identification Policy and Document-Level Exemption Policy

Next, the plaintiff alleges two policies or practices of the CIA that relate to the CIA's processing of FOIA requests at the administrative level. First, the plaintiff claims that " [i]n every case in which CIA has withheld records in their entirety in response to [one of the plaintiff's] FOIA request[s], ... CIA has consistently refused to identify any of the records withheld in their entirety." FAC ¶ 118, NSC III. The plaintiff alleges that this persistent " refus[al] to identify withheld records in the administrative stage" is a policy or practice of the CIA, citing a publicly available CIA training outline created in 2001, which states, " at initial and at appeal stage, no listing of documents ... is required," and the plaintiff claims that this Withheld Document Non-Identification Policy violates the FOIA. Id. ¶¶ 118-20. The plaintiff therefore seeks declaratory and injunctive relief from this alleged policy in Counts Eighteen and Nineteen, of the First Amended Complaint in No. 11-445 under the FOIA and the APA, respectively. See id. ¶¶ 120, 122, 124-26.

The plaintiff also alleges that, " [i]n the majority of cases in which CIA has withheld records in their entirety in response to [one of the plaintiff's] FOIA request[s], ... CIA has consistently invoked exemptions in the alternative," and that " [i]n every case in which CIA has redacted information from records released in response to [one of the plaintiff's] FOIA request[s], ... CIA has consistently invoked exemptions on a document-level without indicating which exemptions applied to which particular redactions." Id. ¶¶ 128-29. The plaintiff further alleges

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that this activity represents an ongoing policy or practice of the CIA, citing the same training manual it cited in challenging the alleged Withheld Document Non-Identification Policy, which also states that " at the initial and at appeal stage, no ... putting specific exemptions next to redactions, is required," and the plaintiff claims that this alleged Document-Level Exemption Policy violates the FOIA. Id. ¶¶ 119, 130-31. The plaintiff seeks declaratory and injunctive relief from this alleged policy in Counts Twenty and Twenty-One of the First Amended Complaint in No. 11-445 under the FOIA and the APA, respectively. Id. ¶¶ 133, 135-37.

G. Blanket Processing Notes Exemption Policy and Blanket Reference Material Exemption Policy

The plaintiff has, through numerous separate FOIA requests, sought two types of records integral to the processing of FOIA requests: namely, notes prepared and reference materials used by personnel actually processing the requests, but the plaintiff claims that the CIA has categorically declined to disclose either type of record. Specifically, on December 1, 2009, the plaintiff submitted a FOIA request to the CIA seeking " copies of all CIA records ‘ referencing FOIA and Privacy Act requests submitted by [ten listed parties] that contain remarks, comments, notes, explanations, etc. made by CIA personnel or contractors about the processing of these requests (and appeals, if appropriate), the invocation of exemptions, or related matters.’ " FAC ¶ 11, NSC III. This information was to include " analysts' notes made during the processing of the requests, any standard worksheets completed by the analysts, any justifications for exemption invocations," as well as " any correspondence referencing the requests." Id. The plaintiff refers to this kind of request generally as a " Processing Notes request," and the plaintiff alleges that it has also submitted seventeen other Processing Notes requests to the CIA, and in thirteen of those requests the CIA identified responsive records. Id. ¶¶ 11, 33. The plaintiff also claims that, in response to twelve of those thirteen FOIA requests involving responsive records, the CIA " has withheld everything from ... release except for correspondence with the requester." Id. ¶ 33.

Relatedly, the plaintiff submitted a FOIA request on February 6, 2010 for " copies of ‘ all current training handbooks, manuals, guidelines, checklists, worksheets, and similar documents provided to [CIA] FOIA and Privacy Act analysts.’ " Id. ¶ 56. The plaintiff refers to this kind of request generally as a " Reference Materials request," and it claims that, in response to FOIA requests seeking such reference materials, the CIA " appl[ies] a blanket exemption" to all such reference materials. Id. ¶ 79.

The plaintiff claims that these patterns of activity by the CIA with respect to FOIA processing notes and reference materials constitute two policies or practices that violate the FOIA by applying an improper blanket exemption to all such materials, thereby preventing their disclosure. Id. ¶ ¶ 33, 35, 79. As a result, the plaintiff seeks declaratory and injunctive relief from the alleged Blanket Processing Notes Exemption Policy and Blanket Reference Material Exemption Policy in Counts Four and Eleven of the First Amended Complaint in No. 11-445, respectively, under the FOIA. Id. ¶ 37, 81.

H. Glomar Response Policy

The plaintiff has submitted nine FOIA requests to the CIA, two of which are at issue in this litigation, seeking records " pertaining to FOIA or Mandatory Declassification Review (‘ MDR’ ) requests" that

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had been referred to the CIA by other government agencies. Id. ¶ 94. Based on the two examples of such requests provided by the plaintiff, these requests were similar to a Processing Notes request and sought the same types of information as such requests, except that they sought processing notes from particular FOIA requests, rather than generally seeking all CIA processing notes related to particular requesters. See id. ¶¶ 83, 89. The plaintiff alleges that, in response to these processing notes requests, the CIA " issued a Glomar response to all but one of these requests," and it further alleges that this activity by the CIA constitutes an agency policy or practice. Id. ¶ 94.

A Glomar response is " an exception to the general rule that agencies must acknowledge the existence of information responsive to a FOIA request and provide specific, non-conclusory justifications for withholding that information." Roth v. U.S. Dep't of Justice, 642 F.3d 1161, 1178 (D.C.Cir.2011).[7] Thus, a Glomar response allows an agency to respond to a FOIA request by neither confirming nor denying the existence of any records responsive to the request, on the grounds that " confirming or denying the existence of records would itself ‘ cause harm cognizable under a[ ] FOIA exception.’ " Id. (quoting Wolf v. CIA, 473 F.3d 370, 374 (D.C.Cir.2007)). The plaintiff alleges that " [t]he fact that any given FOIA or MDR request is referred to CIA by another government agency is not classified," and therefore the plaintiff claims that the CIA's alleged policy or practice of " authoriz[ing] a Glomar response to any request for information pertaining to FOIA and MDR requests referred to an agency" is an ongoing violation of the FOIA. Id. ¶ 95-96. The plaintiff seeks declaratory and injunctive relief from this alleged Glomar Response Policy in Count Fourteen of the First Amended Complaint in No. 11-445 under the FOIA. Id. ¶ 98.

I. Non-Provision of Completion Date Policy

Finally, the plaintiff alleges that, in conjunction with pending FOIA requests with the CIA, the plaintiff " asked CIA numerous times in 2009-2010 for estimated dates of completion for its pending FOIA requests" pursuant to 5 U.S.C. § 552(a)(7)(B). Id. ¶ 101. That portion of the FOIA provides that " [e]ach agency shall ... provide[ ] information about the status of a request to the person making the request," including " an estimated date of on which the agency will complete action on the request." 5 U.S.C. § 552(a)(7)(B). The plaintiff claims that until November 2010, the CIA " refused to provide [the plaintiff] with estimated dates of completion." FAC ¶ 101, NSC III.

On November 17, 2010, however, the plaintiff alleges that a representative of the CIA informed the plaintiff " that CIA's new policy was to inform requesters that the estimated date of completion for any given request is two years from CIA's date of receipt." Id. That same day, the plaintiff alleges, non-party JMP requested estimated dates of completion from the CIA for three pending FOIA requests that were more than two years old, specifically invoking 5 U.S.C. § 552(a)(7)(B). Id. ¶ 102. Even so, the plaintiff alleges that on November 24, 2010, the CIA responded to JMP's request but " refused to provide

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the requested estimated dates of completion." Id. The plaintiff also alleges that the CIA similarly refused to provide estimated dates of completion for pending FOIA requests to a non-party named Michael Ravnitzky, who requested such dates on November 28, 2010. Id. ¶ 103. As a result of this pattern of behavior, the plaintiff claims that the CIA's refusal to provide estimated dates of completion, in compliance with 5 U.S.C. § 552(a)(7)(B), represents an ongoing policy or practice of the CIA that violates the FOIA. Id. ¶¶ 104-05. The plaintiff seeks declaratory and injunctive relief from this alleged Non-Provision of Completion Date Policy in Counts Fifteen, Sixteen, and Seventeen of the First Amended Complaint in No. 11-445 under the FOIA, the APA, and the Mandamus Act, respectively. See id. ¶¶ 105, 107, 109-11, 113-16.

* * *

The plaintiff filed the Complaints in each of these three actions on February 28, 2011, and the plaintiff filed a First Amended Complaint in Nos. 11-444 and 11-445 on March 21, 2011. Pending before the Court are the CIA's partial motions to dismiss in all three actions. The motions have been brought pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim as well as Rule 12(b)(1) for lack of subject-matter jurisdiction. For the reasons discussed below, the Court will deny the CIA's Partial Motion to Dismiss in No. 11-443, the Court will grant in part and deny in part the CIA's Partial Motion to Dismiss in No. 11-444, and the Court will grant in part and deny in part the defendants' Partial Motion to Dismiss in No. 11-445.[8]

II. STANDARDS OF REVIEW

A. Motions to Dismiss

In its partial motions to dismiss, the CIA invokes the legal standards for dismissal under Federal Rules of Civil Procedure 12(b)(6) and 12(b)(1). [9]

When faced with a motion to dismiss for lack of subject-matter jurisdiction under Rule 12(b)(1), a court has " an affirmative obligation to consider whether the constitutional and statutory authority exist" for it to hear the case. James Madison Ltd. v. Ludwig, 82 F.3d 1085, 1092 (D.C.Cir.1996) (internal quotation marks omitted). For this reason, " the [p]laintiff's factual allegations in the complaint ... 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." Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F.Supp.2d 9, 13-14 (D.D.C.2001) (internal quotation marks omitted). When the purported lack of jurisdiction stems from a lack of standing, however, the court " must assume that [the plaintiff] states a valid legal claim." Info. Handling Servs., Inc. v. Def. Automated Printing Servs., 338 F.3d 1024, 1029 (D.C.Cir.2003). The proponent of jurisdiction bears the burden of ...


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