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Nat'l Sec. Counselors v. Central Intelligence Agency

United States District Court, District of Columbia

March 20, 2013

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

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[Copyrighted Material Omitted]

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For NATIONAL SECURITY COUNSELORS, KATHRYN SACK, JEFFREY STEIN, MARK ZAID, All Similarly Situated Parties, Plaintiffs: Bradley P. Moss, LAW OFFICE OF MARK S. ZAID, P.C., Washington, DC; Kelly Brian McClanahan, NATIONAL SECURITY COUNSELORS, Arlington, VA.

For CENTRAL INTELLIGENCE AGENCY, Defendant: Galen Nicholas Thorp, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Civil Division, Washington, DC.

For OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE, Defendant: Galen Nicholas Thorp, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Civil Division, Washington, DC.

OPINION

BERYL A. HOWELL, United States District Judge.

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MEMORANDUM OPINION

The plaintiffs--a group consisting of journalists, academics, and government watchdog groups--bring this action against the defendants Central Intelligence Agency (" CIA" ) and Office of the Director of National Intelligence (" ODNI" ) pursuant to, inter alia, the Freedom of Information Act (" FOIA" ), 5 U.S.C. § 552 and the Administrative Procedure Act (" APA" ), 5 U.S.C. § § 701, et seq. The plaintiffs each submitted at least one FOIA request or Mandatory Declassification Review (" MDR" ) request to the CIA between July 2011 and January 2012, and they challenge the CIA's responses to those requests in a number of ways. In addition to issues related to specific FOIA requests, the plaintiffs claim that the CIA is engaging in a variety of policies or practices that constitute ongoing and systematic violations of the FOIA. Furthermore, the plaintiffs challenge the CIA's promulgation of a final rule regarding how fees are assessed for MDR requests, without first subjecting the rule to notice-and-comment procedures. The CIA has now moved to dismiss nine of the twenty-six causes of action pleaded in the plaintiff's First Amended Complaint, pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). This partial motion to dismiss will be granted in part and denied in part.

I. BACKGROUND

This case, in its entirety, ultimately implicates over thirty separate FOIA and MDR requests submitted by the plaintiffs, along with four alleged policies or practices of the CIA and one final rule promulgated by the CIA. See First Am. Compl. (" FAC" ) ¶ ¶ 19-233, ECF No. 9. The CIA's pending partial motion to dismiss, however, only touches upon fourteen of these specific requests, [1] in addition to the four

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policies or practices and the single final rule. Therefore, the Court will only set forth the facts that are relevant to deciding the pending motion.

A. Specific FOIA Requests

On October 20, 2010, plaintiff National Security Counselors (" NSC" ) submitted to ODNI a FOIA request " for all FOIA Referral Memos sent to other government agencies in Fiscal Year 2010 and any subsequent correspondence with the agencies regarding these memos or the records to which they refer." Id. ¶ 221. In response to this request, on July 20, 2011 (" Request #1" ) and November 4, 2011 (" Request #2" ), the ODNI " referred an unknown amount of CIA material to CIA for review and direct response to NSC." [2] See id. ¶ ¶ 222, 225. On March 13, 2012 and March 15, 2012, the CIA " withheld all information" from Request #1 and Request #2, respectively, citing FOIA Exemptions 3 and 5. Id. ¶ ¶ 229-30. NSC did not file an administrative appeal of these withholding determinations. Nevertheless, NSC claims that the CIA's denial letters for Request #1 and Request #2 were " legally insufficient" to trigger an administrative appeal because they did not " provide an estimate of the volume of any denied matter" pursuant to 5 U.S.C. § 552(a)(6)(F). See FAC ¶ ¶ 231-32. Therefore, NSC alleges that it has constructively exhausted its administrative remedies because " twenty working days have elapsed without a substantive determination by CIA which meets the volume estimate requirement of FOIA." See id. ¶ 232.

On September 6, 2011, plaintiff Kathryn Sack submitted a FOIA request (" Request #3" ) that sought " thirty-two specified documents currently published in the CIA Records Search Tool ('CREST')." Id. ¶ 177. This request specified that " '[r]ecords which are currently published in CREST in redacted form should be reviewed for full release under FOIA,'" and requested a public-interest fee waiver and production of any responsive records in an electronic format. See id. On September 13, 2011, the CIA " released paper copies of the redacted versions of the thirty-two documents which were published in CREST" and also " denied Sack's request for a public interest fee waiver and assessed a duplication fee of $13, stating that there could be no public interest in releasing records which were already published in CREST." Id. ¶ 178. On September 26, 2011, Sack " [administratively] appealed all redactions in the thirty-two documents" and the fee-waiver denial. Id. ¶ 179. On October 18, 2011, the CIA responded to Sack's administrative appeal, stating that " [i]t was not clear that you were requesting a re-review of these documents," though " we can open a new request to address this re-review if you wish." Id. ¶ 180. The CIA's response also stated that " you were not given appeal rights in the earlier response, and, as such, we cannot accept your appeal." Id. The plaintiffs

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challenge this response by the CIA, both because " Sack has a legal right . . . to obtain the information she seeks" and because " Sack has a legal right . . . to receive a public interest fee waiver." See id. ¶ ¶ 181-82. Specifically, the plaintiffs allege that " there is no legal basis for CIA to simply provide records which had been previously processed when Sack explicitly specified in her initial request letter that all records currently published in redacted form were to be re-processed for release under FOIA." Id. ¶ 181. [3]

Also on September 6, 2011, NSC submitted a FOIA request to the CIA (" Request #4" ) that was related to one of its previous requests. See id. ¶ 161. In particular, the CIA's response to a prior FOIA request had stated that review of certain documents " would impose an excessive and unreasonable burden on the [CIA], and pursuant to relevant precedent, we must decline to process such requests.'" See id. ¶ 160. Hence, Request #4 requested " records pertaining to the 'relevant precedent' to which this letter referred." Id. ¶ 161. On October 21, 2011, the CIA " released one document comprised solely of the paragraph which had been used in the response letter to" the previous request and " did not list the records withheld in their entirety." See id. ¶ 163. On December 29, 2011, NSC sent a letter to the CIA, requesting a list that " identifies the records being withheld and describes the reasons for their withholding in general terms." Id. ¶ 164. NSC's letter further stated that " [u]ntil we obtain such a list, we do not consider your response to constitute a proper final determination response and reject your appeal deadline." Id. Similar to its challenge to Request #1 and Request #2, discussed above, NSC contends that it constructively exhausted its administrative remedies regarding Request #4 because " twenty working days have elapsed without a substantive determination by CIA which meets the volume estimate requirement of FOIA." See id. ¶ 167.

On May 4, 2010, NSC submitted a FOIA request to the CIA for, inter alia, " the 15 FOIA requests received by the [CIA] during Fiscal Year 2008 that were classified as full denials because the Records were not Reasonably Described in" the CIA's 2008 Annual Report. See id. ¶ 184 (internal quotation marks omitted); see also Defs.' Ex. C at 1, ECF No. 14-3. That same day, NSC also submitted a similar FOIA request to the CIA that sought, inter alia, " [t]he 290 FOIA requests received by the CIA during Fiscal Year 2008 that were classified as full denials because they were considered Improper FOIA Requests for Other Reasons" in the CIA's 2008 Annual Report. See Defs.' Ex. D at 1 (internal quotation marks omitted), ECF No. 14-4; FAC ¶ 187; see also Decl. of Martha Lutz ¶ 65, Nat'l Sec. Counselors v. CIA, No. 11-444 (D.D.C. Dec. 20, 2011). NSC agreed to combine these two requests into one, and the CIA provided NSC with records responsive to the merged request on August 31, 2011. See FAC ¶ ¶ 186, 188. NSC alleges that " it is not possible to discern from the records themselves which records are responsive to which request," and so NSC " asked CIA several times to identify the fifteen records which were responsive to" the first request, but " CIA refused to provide any clarification." See id. ¶ 189. NSC therefore submitted a new FOIA request on October 12, 2011 (" Request #5" ), which sought " the first page of the initial response letter for each of the fifteen

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FOIA requests identified in" its first May 4, 2010 FOIA request. Id. ¶ 190. The CIA nevertheless " refused to process the request, stating that it was a duplicate of one of the line items of the merged [r]equest." See id. ¶ 191. NSC attempted to appeal this determination by the CIA not to process Request #5, but the CIA " refused to accept NSC's appeal" because the request was never processed. See id. ¶ ¶ 192-93. NSC challenges the CIA's response to Request #5 and asserts that it has a legal right to the information sought in that request. See id. ¶ 194.

B. Alleged Policies or Practices Violating the FOIA

The plaintiffs also challenge what they allege are four separate policies or practices of the CIA that constitute ongoing violations of the FOIA. The Court will summarize below the plaintiffs' allegations regarding each claimed policy or practice.

1. Policy or Practice of Requiring Commitment to Pay Applicable Fees

Between September 6, 2011 and September 14, 2011, NSC submitted five FOIA requests to the CIA. See FAC ¶ 69. In response to each of these requests, the CIA notified NSC that " [w]e determined that your request falls into the 'all other' fee category, which may require you to pay charges to cover the cost of searching for and reproducing responsive records (if any) beyond the first 100 pages of reproduction and the first two hours of search time, which are free." Id. ¶ 70. The CIA's letters also stated that " we will need your commitment to pay all applicable fees before we can proceed with our searches." Id. NSC sought clarification of these letters, asking the CIA, via letter on October 4, 2011, to " [p]lease confirm that you mean that you will conduct the first two hours of search regardless of our promise to pay, since we are entitled to that by law, and that you will not conduct any further searches absent a promise to pay." Id. ¶ 71 (emphasis omitted). The CIA responded to NSC's request on October 7, 2011, stating that " it is not possible to limit our searches for records on a particular topic to precisely two hours" since " some of the searches are automated, whereas others are not," and therefore " the total search effort cannot be limited in an arbitrary way, such as the maximum amount that can be performed as you requested." Id. ¶ 72. In light of this correspondence, the plaintiffs allege that " CIA's refusal to provide two free hours of search time to 'all other' requesters who refuse to pay any fees represents an ongoing policy, practice, or Standard Operating Procedure ('SOP')," which " is in violation of FOIA." See id. ¶ ¶ 74-75. [4]

2. Policy or Practice of Charging Search Fees for Automated Searches

The second alleged policy or practice of the CIA challenged by the plaintiffs is based on the same facts just discussed. Specifically, the plaintiffs point to the language in the CIA's October 7, 2011 response letter, which stated that " it is not possible to limit our searches for records on a particular topic to precisely two hours" since " some of the searches are automated, whereas others are not." Id. ¶ 72. From this language the plaintiffs claim that " [t]he fact that some of the

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searches are automated has no bearing on the length of the search for fee purposes unless CIA counts the time that a computer takes to perform an automated search with no human participation as part of the search time." See id. ¶ 80. Accordingly, the plaintiffs allege that " CIA's reference to automated searches indicates an ongoing policy, practice, or SOP," and " [a] policy, practice, or SOP of counting for fee purposes the time spent by a computer performing an automated search with no human participation is in violation of FOIA." See id. ¶ ¶ 81-82.

3. Policy or Practice of Refusing to Provide Electronic Records

The third alleged CIA policy or practice challenged by the plaintiffs relates to the format in which records are produced to FOIA requesters. The plaintiffs allege that they " have never received electronic records from CIA in response to FOIA requests." Id. ¶ 134. In this regard, the plaintiffs also allege that " CIA admits that it has a blanket policy of considering every record 'not readily reproducible in electronic format' with the exception of a select few categories of frequently requested records." Id. ¶ 135. According to the plaintiffs, " CIA defends this policy with the argument that its FOIA processing software is only located on its classified computer system, and that after processing records for release using that software it is unduly burdensome to then remove the records from the classified system and burn them to digital media." Id. [5] The plaintiffs thus allege that " [a] policy, practice, or SOP of refusing to provide any releasable records in electronic format (with the exception of a select few predefined categories) is in violation of FOIA." See id. ¶ 136 (emphasis in original).

4. Policy or Practice of Invoking FOIA Exemption 3 Without Authorization

The final alleged CIA policy or practice challenged by the plaintiffs has to do with the CIA's authority to invoke the National Security Act, 50 U.S.C. § § 401, et seq., as a withholding statute under FOIA Exemption 3, 5 U.S.C. § 552(b)(3). " Prior to 2004, the National Security Act vested the Director of Central Intelligence ('DCI') with the authority to protect intelligence sources and methods." FAC ¶ 208. According to the plaintiffs, " [i]n 2004, the Intelligence Reform and Terrorism Prevention Act ('IRTPA') transferred this authority to make such a decision from the DCI to the newly-created [Director of National Intelligence, or 'DNI']." Id. ¶ 209. Thus, the plaintiffs allege that, after 2004, the CIA would only have the authority to invoke the " protect intelligence sources and methods" clause of the National Security Act as an Exemption (b)(3) withholding statute in one of two instances: " (1) it consulted with ODNI in each instance and ODNI authorized each invocation; or (2) ODNI authorized CIA to independently make such invocations." See id. ¶ 210. The plaintiffs claim that, although " [s]ince 2004, CIA has repeatedly invoked the 'protect intelligence sources and methods' clause of the National Security Act" pursuant to Exemption 3, " CIA possesses no independent authority to withhold records from FOIA requests under Exemption (b)(3) to protect intelligence sources and methods." See id. ¶ ¶ 211, 214. This is so because, according to the plaintiffs, " the DNI has not authorized CIA to independently invoke the National Security Act as an Exemption (b)(3) withholding statute," and therefore " every time CIA invokes the

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'intelligence sources and methods' language of the National Security Act as an Exemption (b)(3) withholding statute at the administrative stage, it is doing so without authorization from the agency vested with that authority." Id. ¶ ¶ 215-16. Based on these allegations, the plaintiffs claim that " [a] policy, practice, or SOP of invoking an Exemption (b)(3) withholding statute without proper authorization is in violation of FOIA." Id. ¶ 217.

With respect to each of these four alleged policies or practices, the plaintiffs allege that they " stand to continue to be harmed by this ongoing policy in the future, as they regularly file FOIA requests with CIA and will continue to do so in the future." See id. ¶ ¶ 137, 218; see also id. ¶ ¶ 76, 83 (making same allegations with respect to NSC only). The plaintiffs also allege in each of these policy-or-practice claims that they are " entitled to relief in the form of a declaratory order that CIA is in violation of its statutory responsibilities under FOIA and an injunction compelling CIA" to cease each unlawful policy or practice. See id. ¶ ¶ 77, 84, 138, 219.

C. CIA's Rule Regarding Fees Charged to MDR Requesters

The final claim that the CIA has moved to dismiss is the plaintiffs' challenge, under the APA, to the CIA's decision to promulgate a final rule without notice-and-comment procedures. On June 16, 1997 the CIA promulgated an " interim rule" to " implement its obligations under the [FOIA], the Privacy Act, and Executive Order 12958 (or successor Orders) provisions relating to classification challenges by authorized holders, requests for mandatory declassification review, and access by historical researchers." See Freedom of Information Act; Privacy Act; and Executive Order 12958; Implementation (" Interim Rule" ), 62 Fed. Reg. 32,479 (June 16, 1997) (codified as amended at 32 C.F.R. pts. 1900-01, 1907-09); see also FAC ¶ 20. [6]

Two sections of this 1997 Interim Rule described the CIA's fee structure for FOIA and MDR requests. The section regarding fees for FOIA requests stated, in pertinent part, that " [r]ecords will be furnished without charge or at a reduced rate whenever the Agency determines," inter alia, that " it is in the public interest because it is likely to contribute significantly to the public understanding of the operations or activities of the United States Government and is not primarily in the commercial interest of the requester." See Interim Rule, 62 Fed. Reg. at 32,483. In this same vein, the Interim Rule delineated three categories of FOIA requesters: (1) " [c]ommercial use" requesters, who were to be charged for " the full direct costs of searching for, reviewing, and duplicating responsive records (if any)," (2) " [e]ducational and non-commercial scientific institution" and " representatives of the news media" requesters who were to be charged only for " reproduction beyond the first 100 pages," and (3) " [a]ll other" requesters, who were to be charged " the full direct cost of searching for and reproducing responsive records (if any) beyond the first 100 pages of reproduction and the first two hours of search time which will be

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furnished without charge." Id. at 32,484. The Interim Rule further stated that " [MDR] [r]equests made directly to [the CIA] will be liable for costs in the same amount and under the same conditions as specified in 32 CFR part 1900," id. at 32,496, which is the portion of the CIA's regulations dealing with FOIA requests, see 32 C.F.R. § 1900.01 (" This part is issued under the authority of and in order to implement the [FOIA and other related statutes]." ).

The plaintiffs allege that " prior to 23 September 2011, CIA rarely if ever charged fees to process MDR requests" and " [o]f the multiple frequent MDR requesters surveyed by Plaintiffs, none recalled ever being charged by CIA for MDR requests." See FAC ¶ 23. On September 23, 2011, however, the CIA published in the Federal Register a final rule that amended the CIA's regulations regarding fees for MDR requests. See Mandatory Declassification Review (" Final Rule" ), 76 Fed. Reg. 59,032 (Sept. 23, 2011) (codified at 32 C.F.R. pt. 1908). The Final Rule added 32 C.F.R. § 1908.14, which sets forth several provisions governing whether and how fees are assessed for MDR requests. In relevant part, the new provisions (1) assess reproduction fees for all MDR requests, including a fee of fifty cents per page, $10 per CD, and a minimum fee of $15 per request for reproductions; and (2) assess search and review fees of between $20 and $72 per hour for all MDR requests, which are due " even if our search locates no responsive information or some or all of the responsive information must be withheld under applicable authority." See 32 C.F.R. § 1908.14; see also FAC ¶ 25.

Since the passage of this rule, the plaintiffs allege that " CIA began responding to MDR requests with demands that requesters commit to pay all search, review, and duplication fees at the new fee schedule described in 32 C.F.R. § 1908.14." FAC ¶ 26. Specifically, three of the plaintiffs (NSC, Stein, and Mark Zaid) each submitted one or more MDR requests to the CIA following promulgation of the Final Rule, and the CIA responded to each request by asking the requester to commit to pay the fees outlined in 32 C.F.R. § 1908.14 and holding the request in abeyance until such a commitment was given. See id. ¶ ¶ 27-35. Based on these allegations, the plaintiffs claim that " CIA violated the APA by publishing a Final Rule substantially altering [the former 32 C.F.R. § 1908.13] without first using a Proposed Rule subject to notice and comment." Id. ΒΆ 38. The plaintiffs further allege that the CIA's Final Rule " does not meet the ...


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