United States District Court, District of Columbia
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Kelly Brian McClanahan, National Security Counselors, Arlington, VA, for Plaintiffs.
Judson Owen Littleton, U.S. Department of Justice, Washington, DC, for Defendants.
BERYL A. HOWELL, District Judge.
The plaintiffs, Sharif Mobley and his wife Nzinga Islam, bring these two related actions against four federal government agencies— the Central Intelligence Agency (" CIA" ) and the Departments of State, Defense, and Justice— pursuant to the Freedom of Information Act (" FOIA" ), 5 U.S.C. § 552, and the Privacy Act, 5 U.S.C. § 552a (collectively " FOIA/PA" ). The plaintiffs filed FOIA/PA requests seeking access to, inter alia, all records relating to themselves, in an apparent effort to shed light upon the arrest of Mobley in Sana'a, Yemen on January 26, 2010, and his subsequent incarceration there. All four defendants provided final determinations regarding the plaintiffs' requests, some of which included the release of responsive records to the plaintiffs, and the plaintiffs now challenge the defendants' handling of the plaintiffs' requests on a number of grounds. The defendants contend that they have satisfied their obligations under the FOIA and the Privacy Act, and consequently they have moved for summary judgment on the plaintiffs' claims. 
On January 26, 2010, Mobley was " abducted" from the streets of Sana'a, Yemen and held in the custody of the Yemeni government for several weeks, during which time he was allegedly questioned by U.S. agents and given medical attention for wounds he suffered during his abduction. See Decl. of Cori A. Crider (" Crider Decl." ) ¶¶ 8-10, 26-41, 47-48, ECF No. 24-1 (No. 11-2072). Mobley " is now alleged to have tried to escape from the Jumhori Hospital where he was held incommunicado, shooting two guards, one fatally." See id. ¶ 50. Mobley remains in Yemeni custody on murder charges and faces a potential death sentence. See id. ¶ 53.
On July 22, 2010, after all of these events transpired, Mobley filed, through counsel, a FOIA/PA request with defendants Department of Defense (or " Defense" ), Department of State (or " State" ), and Department of Justice (or " Justice" ), as well as to the Department of Homeland Security, which is not a party to these related actions. See Decl. of Sheryl L. Walter (" First Walter Decl." ) ¶ 4, ECF No. 24 (Aug. 1, 2012) (No. 11-2072); id. Ex. 1, ECF No. 24-1 (No. 11-2072). This request sought records relating to:
1. Mr. Mobley's abduction from the streets of Sana'a, Yemen on January 26, 2010.
2. U.S. agencies' involvement in that disappearance.
3. U.S. agencies' interrogation of Mr. Mobley in incommunicado detention in Yemen, at a time when he was suffering torture and/or cruel, inhuman, and degrading treatment (CIDT).
4. The wider pattern of U.S.-sponsored sweeps and proxy detention in Yemen from January 2010, of which Mr. Mobley's seizure is a part.
First Walter Decl. Ex. 1, at 2. The request clarified that Mobley was requesting " all records in any way relating to, pertaining to, or mentioning himself by any and all persons or entities, including all persons acting on behalf of the United States." Id. Additionally, the request provided sixteen categories of records intended " to elucidate the sorts of records in the likely possession of the targeted agencies." Id. These categories included, inter alia, " [a]ny records ... created from November 2009 ... between the federal government and the government of Yemen regarding Mr. Mobley," including " [r]ecords discussing whether Mr. Mobley was a target of intelligence interest" and " [a]ll records created after January 1, 2010, relating to visits of U.S. agents ... to Mr. Mobley" in the hospital or in prison. See id. at 4-5. The July 22, 2010, request also sought expedited processing and a fee waiver. See id. at 6-7. On August 15, 2011, both of the plaintiffs filed a separate FOIA/PA request with the CIA seeking " all Central Intelligence Agency (‘ CIA’ ) records about Mr. Mobley and Ms. Islam." Supp. Decl. of Michele L. Meeks (" Second Meeks Decl." ) Ex. 2, at 1, ECF No. 49-2 (May 25, 2012) (No. 11-2072). This request referred to Mobley's July 22, 2010 request " only for reference purposes" and clarified that " the scope of this request is for all CIA records about Mr. Mobley and Ms. Islam." Id. 
The first agency to respond to the plaintiffs was the CIA. In a letter dated September 20, 2011, the CIA notified the plaintiffs that although, " [a]fter a thorough search of the appropriate records system," the agency was " able to locate responsive material," the material " must be denied in its entirety on the basis of ... PA exemptions (j)(1) and (k)(1), and FOIA exemptions (b)(1) and (b)(3)." Second Meeks Decl. Ex. 3, at 1, ECF No. 49-3 (No. 11-2072). The CIA's first letter also stated that " [w]ith respect to responsive records that would reveal a classified connection to the CIA ... the CIA can neither confirm nor deny the existence or nonexistence of records responsive to your request." Id. The CIA's refusal to confirm or deny the existence of responsive records was " pursuant to FOIA exemptions (b)(1) and (b)(3), and PA exemptions (j)(1) and (k)(1)." Id. On January 11, 2012, however, the CIA sent the plaintiffs " amended final response letters," which clarified that the initial response letter " contained inaccuracies," and the amended letters " correctly reported that the CIA's search for records that would reflect an open or otherwise acknowledged connection to Plaintiffs produced no responsive records." Decl. of Michele L. Meeks (" First Meeks Decl." ) ¶ 13, ECF No. 39 (May 25, 2012) (No. 11-2072).
The next agency to respond to Mobley's request was the State Department.  On December 13, 2011, State granted Mobley's request for expedited processing. See First Walter Decl. ¶ 9. State notified Mobley on February 6, 2012, based upon
the nature of the request, that " the offices that were reasonably likely to have responsive documents were the Central Foreign Policy Records, the Bureau of Diplomatic Security, the Office of Passport Services, the Office of Overseas Citizens Services, and the American Embassy in Sana'a."  Id. ¶ 19; see also id. Ex. 8, ECF No. 24-8 (No. 11-2072). Additionally, " based on information from other responsive documents, [State] also subsequently searched the Office of Legal Adviser." First Walter Decl. ¶ 19. From December 20, 2011 to May 25, 2012, State notified Mobley by letter each time searches of these components had been completed, and State either released the responsive records or notified Mobley of the reason for withholding records or portions thereof. See id. ¶¶ 11-16; see also id. Exs. 7-13, ECF Nos. 24-7 to 24-13 (No. 11-2072).
The searches performed by State ultimately yielded 293 total records responsive to Mobley's request. First Walter Decl. ¶ 35. 165 of these records were released to Mobley in full, 75 of the records were released in part with certain portions redacted, and 42 of the records were withheld in full. Id. The documents that were withheld from release, either in whole or in part, were withheld pursuant to one or more of the following: FOIA Exemptions 1, 5, 6, and 7(C); and PA Exemptions (d)(5), (k)(1), and (k)(2). See id. ¶¶ 36-53. The remaining eleven records were referred to the Department of the Army (in particular the Office of the Provost Marshal General (" OPMG" )) on March 5, 2012, for their review and direct response to Mobley, and all of these eleven records were eventually withheld in full by the OPMG, pursuant to FOIA Exemption 1 and PA Exemption (k)(1). Id. ¶ 35; see also FAC ¶¶ 21-24; Decl. of John G. Hargitt (" First Hargitt Decl." ) ¶¶ 4, 6, ECF No. 36-1 (June 25, 2012) (No. 11-2072). Mobley also filed a separate FOIA request with the OPMG on June 25, 2012, seeking any responsive records beyond the eleven records that had already been referred by State to the OPMG. See FAC ¶ 31. In response, the OPMG expedited the request and issued a final determination on July 19, 2012, identifying one responsive record and withholding it in full, pursuant to FOIA Exemption 1 and PA Exemption (k)(1). Id. ¶¶ 31-32; see also Decl. of John G. Hargitt (" Second Hargitt Decl." ) ¶ 6, ECF No. 42-5 (Aug. 30, 2012) (No. 11-2073).
The final agencies to provide a final response to Mobley were Defense and Justice. Beginning with Defense, Mobley's counsel clarified with Defense that he only believed that Defense possessed records responsive to line items 10, 14, and 15 of his FOIA/PA request. See FAC ¶¶ 11-12. Defense then referred this request to the Defense Intelligence Agency (" DIA" ), which is a component of Defense and was " most likely ... to have potentially received intelligence reports stemming from the alleged interrogations of Mr. Mobley by ‘ Khan from DOD’ or any other government agent or agency.' " FAC ¶ 13; see also Decl. of Alesia Y. Williams (" First Williams Decl." ) ¶ 6, ECF No. 20 (June 18, 2012) (No. 11-2073). On May 11, 2011, the DIA granted expedited processing of Mobley's request because " news articles suggested
that plaintiff Sharif Mobley was facing trial in a capital case in Yemen." First Williams Decl. ¶ 7. The DIA then " conducted a search to determine if [the DIA] was in possession of any open-source news articles that referenced plaintiffs generally or the criminal matter concerning plaintiff Sharif Mobley in Yemen." Id. ¶ 8. Although this search yielded responsive records, " these articles were part of the general news monitoring performed by other members of the Intelligence Community" and therefore " the DIA FOIA Office referred each of these open-source news articles to the agency that originated the distribution with the request that the distributor respond directly to the plaintiffs." Id. Despite the expedited status of Mobley's request, it was not until May 4, 2012— nearly one year after the request was expedited— that the DIA notified Mobley that 41 responsive documents " were referred to another government agency" and that " [t]o the extent that [Mobley] is requesting any intelligence information in the possession of DIA concerning himself or his family, my response is to advise you that DIA can neither confirm nor deny the existence of the requested information." First Williams Decl. Ex. A at 1, ECF No. 20-1. 
The 41 responsive records identified by the DIA were located in the Open Source Center (" OSC" ) and referred to the CIA on June 17, 2011. See Decl. of Michele L. Meeks (" Third Meeks Decl." ) ¶ 5, ECF No. 42-1 (Sept. 4, 2012) (11-2073). The OSC " collects, monitors, processes, analyzes, and disseminates publicly available information from primarily foreign sources." Id. ¶ 8. Of the 41 documents referred to the CIA, 28 of the documents were released in full, six of the records were referred back to Defense, one record was referred to State, and the CIA withheld the remaining six records under FOIA Exemption 3 because the six records, although technically publicly available, were " subject to limited distribution" and " reveal certain sensitive but unclassified intelligence sources and methods." Id. ¶¶ 6-7, 9. The CIA notified the plaintiffs of the decision to withhold these six documents by letter dated January 25, 2012. See id. ¶ 7.
Finally, the response to Mobley's FOIA/PA request by Justice, for purposes of these related actions, was made by the Federal Bureau of Investigation (" FBI" ). The FBI informed Mobley by letter dated April 5, 2011 that it was processing his request and that the FBI was " searching the indices to our Central Records System [or ‘ CRS'] for the information you requested." See First Argall Decl. Ex. D at 1, ECF No. 25-5. The FBI granted Mobley's request for expedited processing by letter dated May 23, 2011. See First Argall Decl. Ex. I at 1, ECF No. 25-10. On August 17, 2011, after the plaintiffs submitted the privacy waiver of Ms. Islam, the FBI treated the privacy waiver as a new FOIA request, and assigned it a distinct tracking number. See First Argall Decl. Ex. N, ECF No. 25-15. On August 18, 2011, Mobley's counsel wrote the FBI an e-mail clarifying that Ms. Islam's privacy
waiver " was not a new request; it was an additional waiver form for use when processing [Mobley's request], which was for records about Sharif Mobley and his family. " First Argall Decl. Ex. O, ECF No. 25-16 (No. 11-2073).
On August 29, 2011, Mobley's counsel contacted the FBI via e-mail, asking that the agency " please ensure that you search for all ‘ main’ files and all ‘ reference’ or ‘ cross-reference’ files" and also requesting that the FBI search ten specific types of records systems. See First Argall Decl. Ex. P at 1, ECF No. 25-17. Similarly, on September 21, 2011, Mobley's counsel contacted the FBI via e-mail to request that the FBI " include the Baltimore Field Office in your search" along with the Washington, D.C., Field Office. See First Argall Decl. Ex. R, at 1, ECF No. 25-19. On May 4, 2012— the same date that the DIA provided its final response— the FBI notified Mobley that it had located eighty-five pages of responsive records, and in the same correspondence the FBI released all eighty-five pages in part, with certain portions redacted pursuant to one or more of the following: FOIA Exemptions 1, 6, and 7(C); and PA Exemption (j)(2). See First Argall Decl. ¶ 24.
The plaintiffs filed both of the instant related actions on November 22, 2011, at which time only the CIA had provided a final determination regarding the plaintiffs' FOIA/PA request. Currently pending before the Court are the defendants' motions for summary judgment, as well as certain defendants' supplemental motions for summary judgment, in both related actions. See Def. Dep't of Defense's Supplemental Mot. for Summ. J., ECF No. 42 (No. 11-2073); Def. Dep't of State's Supplemental Mot. for Summ. J., ECF No. 36 (No. 11-2072); Defs.' Mot. for Summ. J., ECF No. 25 (No. 11-2073); Defs.' Mot. for Summ. J., ECF No. 22 (No. 11-2072). For the reasons discussed below, the Court grants both motions in full, with one minor exception discussed in more detail below.
II. LEGAL STANDARDS
Congress enacted the FOIA to promote transparency across the government. See 5 U.S.C. § 552; Quick v. U.S. Dep't of Commerce, Nat'l Inst. of Standards & Tech., 775 F.Supp.2d 174, 179 (D.D.C.2011). The Supreme Court has explained that the FOIA is " a means for citizens to know ‘ what their Government is up to.’ This phrase should not be dismissed as a convenient formalism. It defines a structural necessity in a real democracy." Nat'l Archives & Records Admin. v. Favish, 541 U.S. 157, 171-172, 124 S.Ct. 1570, 158 L.Ed.2d 319 (2004) (citation and internal quotation marks omitted). " The basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed." NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242, 98 S.Ct. 2311, 57 L.Ed.2d 159 (1978). As a result, the FOIA requires federal agencies to release all records responsive to a request for production. See 5 U.S.C. § 552(a)(3)(A). Federal courts are authorized
under the FOIA " to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant." Id. § 552(a)(4)(B).
This strong interest in transparency must be tempered, however, by the " legitimate governmental and private interests [that] could be harmed by release of certain types of information." United Techs. Corp. v. U.S. Dep't of Def., 601 F.3d 557, 559 (D.C.Cir.2010) (internal quotation marks omitted); see also Critical Mass. Energy Project v. Nuclear Regulatory Comm'n, 975 F.2d 871, 872 (D.C.Cir.1992) (en banc). Accordingly, Congress included nine exemptions permitting agencies to withhold information from FOIA disclosure. See 5 U.S.C. § 552(b). " These exemptions are explicitly made exclusive, and must be narrowly construed." Milner v. Dep't of the Navy,
__ U.S. __, 131 S.Ct. 1259, 1262, 179 L.Ed.2d 268 (2011) (citations and internal quotation marks omitted); see also Pub. Citizen, Inc. v. Office of Mgmt. & Budget, 598 F.3d 865, 869 (D.C.Cir.2010) (" FOIA allows agencies to withhold only those documents that fall under one of nine specific exemptions, which are construed narrowly in keeping with FOIA's presumption in favor of disclosure." (citations omitted)). When a FOIA requester properly exhausts its administrative remedies, it may file a civil action challenging an agency's response to its request. See 5 U.S.C. § 552(a)(4)(B); Wilbur v. CIA, 355 F.3d 675, 677 (D.C.Cir.2004). Once such an action is filed, the agency generally has the burden of demonstrating that its response to the plaintiff's FOIA request was appropriate.
When an agency's response is neither to confirm nor deny the existence of responsive documents— commonly known as a Glomar response — the agency " must demonstrate that acknowledging the mere existence of responsive records would disclose exempt information." Elec. Privacy Info. Ctr. v. NSA, 678 F.3d 926, 931 (D.C.Cir.2012). " In Glomar cases, courts may grant summary judgment on the basis of agency affidavits that contain ‘ reasonable specificity of detail rather than mere conclusory statements, and if they are not called into question by contradictory evidence in the record or by evidence of agency bad faith.’ " Id. (quoting Gardels v. CIA, 689 F.2d 1100, 1105 (D.C.Cir.1982)). " The supporting affidavit must justify the
Glomar response based on ‘ general exemption review standards established in non- Glomar cases.’ " Id. (quoting Wolf v. CIA, 473 F.3d 370, 374-75 (D.C.Cir.2007)).
When an agency's response to a FOIA request is to withhold responsive records, either in whole or in part, the agency " bears the burden of proving the applicability of claimed exemptions." Am. Civil Liberties Union v. U.S. Dep't of Def. (" ACLU/DOD " ), 628 F.3d 612, 619 (D.C.Cir.2011). " The government may satisfy its burden of establishing its right to withhold information from the public by submitting appropriate declarations and, where necessary, an index of the information withheld." Am. Immigration Lawyers Ass'n v. U.S. Dep't of Homeland Sec., 852 F.Supp.2d 66, 72 (D.D.C.2012) (citing Vaughn v. Rosen, 484 F.2d 820, 827-28 (D.C.Cir.1973)). " If an agency's affidavit describes the justifications for withholding the information with specific detail, demonstrates that the information withheld logically falls within the claimed exemption," and " is not contradicted by contrary evidence in the record or by evidence of the agency's bad faith, then summary judgment is warranted on the basis of the affidavit alone." ACLU/DOD, 628 F.3d at 619. " Ultimately, an agency's justification for invoking a FOIA exemption is sufficient if it appears ‘ logical or ‘ plausible.’ " Id. (internal quotation marks omitted) (quoting Larson v. Dep't of State, 565 F.3d 857, 862 (D.C.Cir.2009)).
When a requester challenges an agency's response based on the adequacy of the search performed, " [t]o prevail on summary judgment ... the defending ‘ agency must show beyond material doubt ... that it has conducted a search reasonably calculated to uncover all relevant documents.’ " Morley v. CIA, 508 F.3d 1108, 1114 (D.C.Cir.2007) (quoting Weisberg v. U.S. Dep't of Justice (" Weisberg I " ), 705 F.2d 1344, 1351 (D.C.Cir.1983)). " In order to obtain summary judgment the agency must show that it made a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested." Oglesby v. U.S. Dep't of Army, 920 F.2d 57, 68 (D.C.Cir.1990). " Summary judgment may be based on affidavit, if the declaration sets forth sufficiently detailed information ‘ for a court to determine if the search was adequate.’ " Students Against Genocide v. Dep't of State, 257 F.3d 828, 838 (D.C.Cir.2001) (quoting Nation Magazine v. U.S. Customs Serv., 71 F.3d 885, 890 (D.C.Cir.1995)).
B. Privacy Act
The Privacy Act, 5 U.S.C. § 552a, " regulates the ‘ collection, maintenance, use, and dissemination of information’ about individuals by federal agencies." Wilson v. Libby, 535 F.3d 697, 707 (D.C.Cir.2008) (quoting Doe v. Chao, 540 U.S. 614, 618, 124 S.Ct. 1204, 157 L.Ed.2d 1122 (2004)). The statute provides that, if any federal agency maintains a " system of records," it must " upon request by any individual to gain access to his record or to any information pertaining to him which is contained in the system, permit him ... to review the record and have a copy made of all or any portion thereof in a form comprehensible to him." 5 U.S.C. § 552a(d)(1). The statute defines a " system of records" as " a group of any records under the control of any agency from which information is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particular assigned to the individual." Id. § 552a(a)(5). If an agency " refuses to comply with an individual request," the individual may bring a civil action against the agency. See id. § 552a(g)(1)(B).
The Privacy Act, however, also permits agencies to exempt certain systems of records from the requirements of § 552a(d). See 5 U.S.C. § 552a(j)-(k) When an agency moves for summary judgment on the basis of a statutory exemption, it " bears the burden of sustaining its decision to claim an exemption from disclosure." Wheeler v. CIA, 271 F.Supp.2d 132, 136 (D.D.C.2003) (citing 5 U.S.C. § 552a(g)(3)(A)). Much like in the FOIA context, at the summary judgment stage, " [i]n a Privacy Act case, the Court may rely on agency affidavits or declarations." Jimenez v. Exec. Office for U.S. Attorneys, 764 F.Supp.2d 174, 180 (D.D.C.2011); accord Chambers v. U.S. Dep't of Interior, 568 F.3d 998, 1003 (D.C.Cir.2009) (holding that " [i]n a suit seeking agency documents— whether under the Privacy Act or FOIA— ‘ [a]t the summary judgment stage ... the court may rely on a reasonably detailed affidavit’ " ).
In these related actions, the plaintiffs challenge four separate aspects of the defendants' responses to the plaintiffs' FOIA/PA requests. First, the Court will address the plaintiffs' challenges to the adequacy of certain defendants' searches for records. Second, the Court will discuss the plaintiffs' challenges to the propriety of certain defendants' Glomar responses, i.e., refusals to confirm or deny the existence of responsive records. Third, the Court will discuss whether the defendants have adequately justified their determinations to withhold certain responsive records. Finally, the Court will assess whether certain defendants sufficiently established that all " reasonably segregable portion[s]" of the withheld records were provided to the plaintiffs. See 5 U.S.C. § 552(b).
A. The Adequacy of the Defendants' Searches
As discussed above, " an agency responding to a FOIA request must ‘ conduct[ ] a search reasonably calculated to uncover all relevant documents,’ and, if challenged, must demonstrate ‘ beyond material doubt’ that the search was reasonable." Truitt v. Dep't of State, 897 F.2d 540, 542 (D.C.Cir.1990) (footnotes omitted) (quoting Weisberg I, 705 F.2d at 1351). The adequacy of a search " is judged by a standard of reasonableness and depends, not surprisingly, upon the facts of each case." Weisberg v. U.S. Dep't of Justice (" Weisberg II " ), 745 F.2d 1476, 1485 (D.C.Cir.1984). " The question is not whether there might exist any other documents possibly responsive to the request, but rather whether the search for those documents was adequate. " Steinberg v. U.S. Dep't of Justice, 23 F.3d 548, 551 (D.C.Cir.1994) (quoting Weisberg II, 745 F.2d at 1485). " Mere speculation that as yet uncovered documents may exist does not undermine the finding that the agency conducted a reasonable search for them." SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1201 (D.C.Cir.1991).
The plaintiffs first contend that the CIA's search for records reflecting an open or otherwise acknowledged affiliation between the CIA and the plaintiffs was inadequate for two reasons. First, the plaintiffs argue that the CIA " improperly failed to search the OSC for responsive records" based on the fact that 41 responsive records from the OSC were referred to the CIA by the DIA. See Pls.' Opp'n to Def.'s Mot. for Summ. J. (" Pls.' Opp'n" ) at 7, ECF No. 40 (No. 11-2072). Second, the plaintiffs argue that the CIA " improperly failed to search the FOIA office for records about Plaintiffs," which the plaintiffs
say was within the scope of their request for records. Id. at 7-8.
a) Failure to Search the Open Source Center for Responsive Records
With respect to the plaintiffs' complaint about the failure to search the OSC, the CIA responds that because " most of the records contained in the DNI OSC are generally available to the public both through their original sources and through the World News Connection, CIA presumes in most cases that a FOIA requester does not want CIA to search those records unless the requester specifically asks for them." Defs.' Reply in Supp. Mot. for Summ. J. (" Defs.' Reply" ) at 3, ECF No. 49 (No. 11-2072). The CIA contends that such a policy is reasonable for two main reasons. First, it " ensures that requesters do not receive public records that they do not want, particularly when requesters will often be charged fees for an agency to process and release publicly available material." Id. Additionally, " requiring requesters to submit separate requests for publicly available records is consistent with FOIA's requirement that agencies ‘ make records promptly available’ because public records can often ... be released more quickly without [the] need to process them for redactions." Id. (citation omitted); see also Cunningham v. Holder, 842 F.Supp.2d 338, 345-46 (D.D.C.2012) (" The requirement of a specific request for public records makes sense." ). Alternatively, the CIA responds that it will agree to search the OSC and turn over any responsive records, " but it will charge plaintiffs fees for that purpose" because " plaintiffs should not be entitled to circumvent the applicable access fees [from World News Connection or Westlaw] and obtain those records for free simply by submitting a FOIA request." Id. at 3-4; see also Second Meeks Decl. ¶¶ 6-13 (explaining the CIA's policy regarding search for publicly available records in response to FOIA requests).
The plaintiffs, however, contest the CIA's premise that the OSC is comprised mostly of publicly available records. Most glaringly, the plaintiffs point out that " [o]f the twenty-eight released records, twelve are available on the World News Connection" and " twelve out of twenty-eight is not ‘ most’ by even the most lenient standards." Pls.' Sur-Reply to Defs.' Mot. for Summ. J. (" Pls.' Surreply" ) at 2, ECF No. 53 (No. 11-2072). The plaintiffs also observe that " the fact that CIA withheld seven records in full speaks volumes about whether or not this information is publicly available." Id. The plaintiffs concede that " CIA should not have to process OSC records which are available on the World News Connection," but they argue instead that " CIA should ... be required to search for and process all OSC records which are not [publicly available]." Id.
On the one hand, the CIA is correct that a policy of " generally interpret[ing] [first-person] FOIA requests ... to be for non-public documents" is reasonable for all of the reasons that similar policies have been upheld in prior cases. Defs.' Reply at 3 (No. 11-2072); see, e.g., Cunningham, 842 F.Supp.2d at 345 (" EOUSA's request that Plaintiff submit a separate specific request for public records is consistent with FOIA's requirements." ); McLaughlin v. U.S. Dep't of Justice, 598 F.Supp.2d 62, 66 & n. 2 (D.D.C.2009) (upholding agency's decision to charge duplication fees for publicly available records and observing that a policy of presuming that FOIA requests are for only non-public records " comports with the statutory requirement that agencies ‘ make [responsive] records promptly available’ " ). The problem for the CIA is that only " [m]ost material from the OSC is ... available to
the public," Second Meeks Decl. ¶ 7, and therefore some portion of the records contained in the OSC database are necessarily non-public. This point is confirmed by the plaintiffs' statement that only twelve of the twenty-eight OSC records it received from the CIA were publicly available. See Pls.' Surreply at 2 (No. 11-2072). In other words, although the CIA's policy regarding the processing of publicly available records is reasonable in theory, that policy does not apply to the entire OSC database, and for that reason the CIA's determination not to search the OSC database in response to the plaintiffs' request is problematic to the extent that non-public, responsive records exist in the OSC.
The CIA appears to agree that the plaintiffs are entitled to receive any non-public, responsive records contained in the OSC database, free of charge. See Second Meeks Decl. ¶ 12 (" The [CIA] recognizes that, with respect to non-public records, requestors should generally be able to obtain information about themselves free of charge ...." ). Similarly, the plaintiffs agree that " CIA should not have to process OSC records which are [not publicly] available." Pls.' Surreply at 2 (No. 11-2072). The practical problem lies in deciding which party has the burden of determining which OSC records are publicly available and which are not. The plaintiffs propose placing that burden on the CIA. See id. The CIA, however, proposes placing that burden on the plaintiffs by essentially presuming that all OSC records are publicly available and charging fees for the production of all such records. See Defs.' Reply at 4 (No. 11-2072).
The parties have presented no evidence regarding how burdensome it would be to distinguish between public and non-public records retrieved from the OSC, but this will often be self-evident with the publication origin of the document, apparent on its face. Thus, the CIA must search the OSC database for any records responsive to the plaintiffs' FOIA/PA request and must release any non-exempt, responsive records to the plaintiffs. Additionally the CIA may choose, in its discretion, to charge fees to the plaintiffs for any records that it produces from this search that it identifies as being publicly available, and the plaintiffs may challenge any fees that they believe are improperly levied on this basis. If the plaintiffs object to any of the fees charged, they should raise those objections at the administrative level before challenging them in a civil action, in order to give the agency an opportunity to correct any errors it may have made before seeking assistance from a court. See, e.g., Avocados Plus Inc. v. Veneman, 370 F.3d 1243, 1247 (D.C.Cir.2004) (holding that administrative exhaustion is intended, inter alia, to " giv[e] agencies the opportunity to correct their own errors" (internal quotation mark omitted)).
b) Failure to Search the FOIA Office for Responsive Records
The plaintiffs also argue that the CIA's search was inadequate because it " improperly failed to search the FOIA office for records about Plaintiffs." Pls.' Opp'n at 7 (No. 11-2072). The CIA states that its FOIA officers " do not consider records of previous FOIA, PA, or [Mandatory Declassification Review, or ‘ MDR’ ] requests ... to be responsive to a current request"
except where a request " expressly seek[s] records of previous FOIA, PA, or MDR requests by the requester." First Meeks Decl. ¶ 14. The plaintiffs nevertheless complain that their FOIA/PA requests " were explicitly ‘ for all CIA records about Mr. Mobley and Ms. Islam’ " and " it is in violation of FOIA for CIA to impose a requirement that ‘ requests expressly seek[ ] records of previous FOIA, PA, or MDR requests.’ " Pls.' Opp'n at 7-8 (No. 11-2072). The CIA's response is that they interpreted the plaintiffs' August 15, 2011, FOIA/PA request to " expressly disclaim [ ] any interest in records regarding the [July 22, 2010] version of their FOIA request." Defs.' Reply at 4 (No. 11-2072). In support of this argument, the CIA cites language from the plaintiffs' August 15, 2011 request, which stated that it was mentioning the July 22, 2010 request " only for reference purposes." See id.; see also Second Meeks Decl. Ex. 2, at 1. The CIA says that it " interpreted that statement as an express disavowal of plaintiffs' interest in obtaining records regarding the July 22, 2010 request" and that such an interpretation was " perfectly reasonable." Defs.' Reply at 4 (No. 11-2072).
The D.C. Circuit has established that an agency " has a duty to construe a FOIA request liberally," Nation Magazine, 71 F.3d at 890, and are " bound to read it as drafted" not as " agency officials ... might wish it was drafted," Miller v. Casey, 730 F.2d 773, 777 (D.C.Cir.1984). In this regard, it is clear that, for example, when a FOIA requester " seek[s] all of a certain set of documents" while also " evincing a heightened interest in a specific subset thereof," such a request " is reasonably susceptible to the broader reading" of seeking the entire set of documents despite the fact that a specific subset of documents is named. LaCedra v. Exec. Office for U.S. Attorneys, 317 F.3d 345, 348 (D.C.Cir.2003); see also Nation Magazine, 71 F.3d at 890 (holding that FOIA request seeking records " ‘ pertaining to’ [Ross] Perot" and specifically " ask[ing] for records indexed under Perot's name" was " sufficient to alert the agency that appellants sought information about Perot, even if it was not indexed under his name" ).
In this case, the language of plaintiffs' request sent mixed signals about the request's intended scope. On the one hand, it explicitly sought " all [CIA] records about Mr. Mobley and Ms. Islam," but it also explicitly deemphasized the relevance of the plaintiffs' prior FOIA/PA request by stating that it referred to that request " only for reference purposes." Second Meeks Decl. Ex. 2, at 1. It is unclear from the four corners of the August 15, 2011 request what the plaintiffs meant by " only for reference purposes," but the CIA was reasonable in interpreting " only for reference purposes" to mean not for purposes of expressing an interest in records associated with prior FOIA/PA requests. Thus, the plaintiffs' specific disclaimer regarding the July 22, 2010 request could be reasonably interpreted to disavow an interest in obtaining records about that prior request, and therefore the CIA's decision not to search its FOIA office for responsive records was reasonable.
In sum, the Court holds that the CIA is only entitled to a partial grant of summary judgment regarding the adequacy of its search. The CIA must search the OSC for records responsive to the plaintiffs' request, as discussed supra. The CIA is, however, entitled to summary judgment as to the adequacy of all other aspects of its search.
2. State Department
Next, the plaintiffs challenge the adequacy of the State Department's search on the grounds that " State failed to follow clear leads when performing its search for responsive records." Pls.' Opp'n at 27 (No. 11-2072). In their surreply, the plaintiffs clarify that they " concede the adequacy of the majority of State's search" and only challenge State's failure to assert that it searched the component where eighteen classified documents originated. See Pls.' Surreply at 8 (No. 11-2072). The only information that State has provided on the public record regarding these eighteen documents, which State refers to as X1-X18, are the year in which each document was created and the number of pages contained in each document. See First Walter Decl. ¶¶ 182-99. Other than this, State maintains that " [n]o further information can be provided regarding [these] document[s] on the public record." Id. The government has also " submitted a classified, ex parte, in camera filing" that elaborates on the nature of records X1-X18. See Notice of Ex Parte, In Camera Filing, ECF No. 29 (No. 11-2072). As the plaintiffs concede, the State Department has no obligation to name the component from which these eighteen documents originate. See Pls.' Surreply at 8 (No. 11-2072) (conceding that " State does not have to describe these records, or even the component in which they originated" ). Upon review of the government's ex parte, in camera filing, in conjunction with the public declarations submitted by the State Department, the Court is satisfied that the State Department searched all of its components reasonably likely to contain responsive information. Therefore, the State Department's search was adequate, and the plaintiffs' objections to the State Department's search are unavailing.
In his final challenge related to search adequacy, Mobley contends that the FBI's search for responsive records was inadequate for two interrelated reasons. First, he says that the FBI's search was inadequate because it did not search certain specific records systems that Mobley's counsel asked it to search. See Pl.'s Opp'n to Defs.' Mot. for Summ. J. (" Pl.'s Opp'n" ) at 21-22, ECF No. 45 (No. 11-2073). Second, Mobley argues that " [t]he inadequacy of FBI's search is demonstrated by the ample evidence that other records exist." Id. at 22. For this point, Mobley cites the fact that, in related Civil Case No. 11-2072, " State produced numerous records to Mobley, some of which consisted of extensive email traffic between State and FBI," which " demonstrate the existence of significant email records about Mobley that were not identified in FBI's search," and Mobley also points to certain press coverage, which indicated that " FBI was even discussing Mobley with the press," yet " no records of interaction with the press were identified by FBI's search." Id.
To provide some context to Mobley's argument, as discussed briefly above, Mobley's counsel contacted the FBI via e-mail on August 29, 2011— slightly more than thirteen months after Mobley submitted his FOIA/PA request to the FBI— to ask that:
[W]hen conducting your search for responsive records, please ensure that you search all " main" files and all " reference" or " ...