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National Security Counselors v. Central Intelligence Agency

United States District Court, District Circuit

August 15, 2013

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

MEMORANDUM OPINION

BERYL A. HOWELL, District Judge.

The plaintiff National Security Counselors ("NSC") brought these three related actions against six federal agencies pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, claiming that the defendant agencies have violated the FOIA in numerous ways.[1] NSC's claims run the gamut, including challenges to: the withholding of specific information; the adequacy of the agencies' search efforts; the refusal to process FOIA requests; the refusal to produce responsive records in an electronic format; and certain policies or practices which the plaintiff claims are ongoing and systematic FOIA violations. Although six agencies are named as defendants, [2] the vast majority of the plaintiff's claims relate to the actions of the Central Intelligence Agency ("CIA") in processing and responding to FOIA requests. The defendants previously moved to dismiss many of the plaintiff's claims, which this Court previously granted in part and denied in part. See Nat'l Sec. Counselors v. CIA (" NSC I "), 898 F.Supp.2d 233 (D.D.C. 2012). The defendants now move for summary judgment on all of the plaintiff's remaining claims, and the plaintiff has also cross-moved for summary judgment on a portion of those claims. Additionally, the plaintiff has filed a motion for sanctions in one of the related cases and a motion for leave to file an amended complaint in another. For the reasons discussed below, the Court grants in part and denies in part the defendants' motions for summary judgment, grants in part and denies in part the plaintiff's cross-motions for summary judgment, denies the plaintiff's motion for sanctions, and denies the plaintiff's motion for leave to file an amended complaint.

Table of Contents I. Background 5 A. 2009 FOIA Requests 6 1. Count Twenty in No. 11-444: September 25, 2009 FOIA Request to the CIA 6 2. Count Eight in No. 11-445: October 22, 2009 FOIA Request to the DOJ 7 3. Counts One, Five and Six in No. 11-445: December 1, 2009 FOIA Requests to the CIA, DIA, and ODNI 8 B. 2010 FOIA Requests 10 1. Counts Seven, Nine and Ten in No. 11-445: February 6, 2010 FOIA Requests to the CIA, State Department, and NSA 10 2. Counts Two and Three in No. 11-445: February 9, 2010 FOIA Requests to the CIA 12 3. Count Seventeen in No. 11-444: May 4, 2010 FOIA Requests to the CIA 14 4. Count Three in No. 11-443: May 12, 2010 FOIA Request to the CIA 15

5. Count Nine in No. 11-444: May 13, 2010 FOIA Request to the CIA 16 6. Count Eight in No. 11-444: July 5, 2010 FOIA Request to the CIA 18 7. Count One in No. 11-444: August 8, 2010 FOIA Requests to the CIA 19 C. 2011 FOIA Requests 20 1. Count Eighteen in No. 11-444: January 26, 2011 FOIA Request to the CIA 20 2. Count Thirteen in No. 11-445: February 11, 2011 FOIA Request to the CIA 21 3. Count Ten in No. 11-444: February 16, 2011 FOIA Request to the CIA 21 D. Facts Related to the Plaintiff's Motion for Sanctions 22 E. Procedural History 26 II. Legal Standards 28 A. FOIA 28 B. Summary Judgment 31 C. Leave to File Amended Complaint 32 III. Discussion 33 A. Motion for Leave to Amend 33 B. Motion for Sanctions 36 C. Policies or Practices 38 1. Assignment of Rights Policy 38 2. Document-Level Exemption Policy 58 D. Adequacy of Search Efforts 62

1. Count Eighteen in No. 11-444: January 26, 2011 FOIA Request to the CIA 62 2. Count Twenty in No. 11-444: September 25, 2009 FOIA Request to the CIA 65 3. Count Nine in No. 11-445: February 6, 2010 FOIA Request to the State Department 67 4. Count Ten in No. 11-445: February 6, 2010 FOIA Request to the NSA 69 E. Refusals to Process Requests 711. Count Nine in No. 11-444: May 13, 2010 FOIA Request to the CIA 72 2. Count Eight in No. 11-444: July 5, 2010 FOIA Request to the CIA 74 3. Count One in No. 11-444: August 8, 2010 FOIA Requests to the CIA 77 4. Count Ten in No. 11-444: February 16, 2011 FOIA Request to the CIA 79 F. Exemption 1 83 1. Exemption 1 Withholdings in No. 11-445 (CIA and DIA) 84 2. Exemption 1 Withholdings in No. 11-443 90 G. Exemption 2 96 H. Exemption 3 99 1. CIA 100 2. DIA 119 3. ODNI 120 J. Exemption 5 122 1. Deliberative-Process Privilege 123 2. Attorney-Client Privilege 131

3. Attorney Work-Product Doctrine 143 K. Electronic Records 147 1. CIA 148 2. State Department 151 L. Segregability 154 IV. Conclusion 157

I. BACKGROUND

The plaintiff has twenty-four claims remaining in these related actions. Since twenty-one of the plaintiff's remaining claims relate to specific FOIA requests, the Court will briefly summarize the timing and content of those requests, the agency's processing of and response to those requests, and the aspects of the agency's processing and responses that are challenged by the plaintiff.[3] In summarizing the specific FOIA requests at issue, the Court will proceed in chronological order, rather than in the order the requests are pleaded in the plaintiff's complaints. In this regard, the Court will organize its discussion by the year in which the FOIA requests were first submitted. The Court will also discuss the factual and procedural background related to the plaintiff's motion for sanctions.

The plaintiff's two other remaining claims relate to policies or practices of the CIA that the plaintiff alleges are in violation of the FOIA, which claims the Court summarized, along with other policy and practice claims, in its previous memorandum opinion in these related cases.[4] See NSC I, 898 F.Supp.2d at 243-44, 248-49. Specifically, as labeled in the Court's previous opinion, the plaintiff challenges the CIA's Assignment of Rights Policy and its Document-Level Exemption Policy.[5] See id.

A. 2009 FOIA Requests

1. Count Twenty in No. 11-444: September 25, 2009 FOIA Request to the CIA

In a letter dated September 25, 2009, the plaintiff submitted a FOIA request to the CIA seeking "all [CIA] records, including cross-references, pertaining to guidelines for attorneys in the Office of General Counsel (OGC') for the conduct of civil cases, especially pertaining to interactions between OGC attorneys and Department of Justice (DOJ') attorneys." See Decl. of Martha M. Lutz (Dec. 13, 2011) ("First Lutz Decl.") Ex. T at 1, No. 11-444, ECF No. 20-4. By letter dated October 28, 2009, the CIA acknowledged this request and informed NSC that the CIA would "search for records existing through the date of this acceptance letter." First Lutz Decl. Ex. U at 1, No. 11-444, ECF No. 20-4. By letter dated January 10, 2011, the CIA provided a final response to the plaintiff's September 25, 2009 FOIA request, informing the plaintiff that "[w]e did not locate any records responsive to your request." First Lutz Decl. Ex. V at 1, No. 11-444, ECF No. 20-4. The plaintiff administratively appealed the adequacy of the CIA's search efforts with respect to this request by letter dated January 21, 2011. See First Lutz Decl. ¶ 57. By letter dated March 15, 2011, the CIA's Agency Release Panel ("ARP") denied the plaintiff's appeal, concluding that the CIA's search efforts were adequate. See id. ¶ 59. In Count Twenty of No. 11-444, the plaintiff challenges the adequacy of the CIA's search efforts in response to the plaintiff's September 25, 2009 request, including the CIA's use of an allegedly improper search cut-off date. See First Am. Compl. ("444 FAC") ¶¶ 104-110, No. 11-444, ECF No. 6; Mem. in Supp. Def.'s Mot. for Summ. J. on Counts 1, 8, 9, 10, 17, 18, & 20 ("Def.'s First 444 Mem.") at 10-11, No. 11-444, ECF No. 20.[6]

2. Count Eight in No. 11-445: October 22, 2009 FOIA Request to the DOJ

On October 22, 2009, the plaintiff submitted a FOIA request to the Department of Justice ("DOJ") Office of Legal Counsel ("OLC"), seeking "copies of all [DOJ] [OLC] opinions concerning the FOIA or the Privacy Act." Decl. of Paul P. Colborn (Oct. 2, 2012) ("Colborn Decl.") Ex. A, No. 11-445, ECF No. 29-11. By e-mail dated October 25, 2009, the plaintiff expanded the scope of this request to include opinions concerning the Federal Records Act, the Presidential Records Act, or agency records retention policies. See Colborn Decl. Ex. B, No. 11-445, ECF No. 29-11. On March 27, 2012, the OLC provided a final response to the plaintiff's FOIA request, producing twenty records in full and withholding all remaining responsive records under FOIA Exemption 5 because "[t]hey are protected by the deliberative process and attorney-client privileges." Colborn Decl. Ex. C, No. 11-445, ECF No. 29-11. On July 6, 2012, the OLC sent another letter to the plaintiff, advising it that the OLC was "releasing... one of the withheld records because [OLC] discovered that it was previously released." Colborn Decl. Ex. D, 11-445, ECF No. 29-11. After releasing that one record, the OLC informed NSC that it continued to withhold fifty-eight records responsive to its request. Id. In Count Eight of No. 11-445, the plaintiff challenges the DOJ's determination to withhold sixteen of the responsive OLC opinions under FOIA Exemption 5. See First Am. Compl. ("445 FAC") ¶¶ 62-67, No. 11-445, ECF No. 7; Colborn Decl. Ex. F at 1, No. 11-445, ECF No. 29-11.

3. Counts One, Five, and Six in No. 11-445: December 1, 2009 FOIA Requests to the CIA, DIA, and ODNI

On December 1, 2009, the plaintiff submitted a FOIA request to the CIA for "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 invocations of exemptions, or related matters." See Decl. of Martha M. Lutz (Sept. 26, 2012) ("Third Lutz Decl.") Ex. A at 1, No. 11-445, ECF No. 52-1; id. Ex. B at 1, No. 11-445, ECF No. 52-1. On December 8, 2009, the plaintiff limited the scope of this request by notifying the CIA that it could "limit [its] search for requests submitted by Michael Ravnitzky to only requests submitted in 2006 and 2009" and that it could "limit [its] search to the last four years in which requests were received from [each] requester." See Third Lutz Decl. Ex. A. On September 22, 2010, the CIA produced seventy records to the plaintiff in part with redactions made pursuant to FOIA Exemptions 3 and/or 6, and the CIA also notified the plaintiff that the CIA was withholding seventy-four other responsive records in their entirety pursuant to FOIA Exemptions 1, 3, and/or 5. See Third Lutz Decl. Ex. B at 1. In Count One of No. 11-445, the plaintiff challenges all of the CIA's withholding determinations made under FOIA Exemptions 1, 3, and/or 5. See 445 FAC ¶¶ 10-17; Mem. in Supp. Defs.' Mot. Summ. J. on Counts 1, 2, 3, 5, 6, 7, 8, 9, 10, and 13 ("Defs.' First 445 Mem.") at 2, No. 11-445, ECF No. 29; Pl.'s Opp'n to Defs.' Mot. Summ. J. on Counts 1, 2, 3, 5, 6, 7, 8, 9, 10, and 13 ("Pl.'s First 445 Opp'n") at 23 n.19, No. 11-445, ECF No. 33.

Also on December 1, 2009, the plaintiff submitted FOIA requests to the Defense Intelligence Agency ("DIA") and the Office of the Director of National Intelligence ("ODNI") for substantially the same category of records sought in the December 1, 2009 FOIA request to the CIA. The only difference was that, instead of records containing processing notes from "CIA personnel or contractors, " the request to the DIA sought processing notes from "DIA personnel or contractors" and the request to the ODNI sought processing notes from "NSA personnel or contractors." See Decl. of John F. Hackett (Oct. 1, 2012) ("Hackett Decl.") Ex. A at 1, No. 11-445, ECF No. 29-8; Decl. of Alesia Y. Williams (Oct. 1, 2012) ("First Williams Decl.") Ex. A at 1, No. 11-445, ECF No. 53-1. The plaintiff also narrowed its processing notes requests to the DIA and the ODNI on December 8, 2009 in the same manner it limited its processing notes request to the CIA. See Hackett Decl. Ex. B, No. 11-445, ECF No. 29-8; First Williams Decl. Ex. B, No. 11-445, ECF No. 53-1.

The ODNI produced responsive records to the plaintiff on May 27, 2010 and June 21, 2010, releasing a total of thirty-four pages, in part, with redactions made pursuant to FOIA Exemptions 2, 3, 5, and 6. See Hackett Decl. ¶¶ 11-12, No. 11-445, ECF No. 29-8. The DIA produced additional responsive records to the plaintiff in six separate releases from July 25, 2012 to September 28, 2012. See First Williams Decl. ¶¶ 8-13, No. 11-445, ECF No. 29-12. In total, the DIA released 86 records in full, released 215 records in part, and withheld 45 records in full, with withholdings made pursuant to FOIA Exemptions 3, 5, and/or 6. See id.; see also First Williams Decl. Exs. D-I, ECF No. 53-1. In Counts Five and Six of No. 11-445, the plaintiff challenges the DIA's and the ODNI's withholding determinations, respectively, made under FOIA Exemptions 1, 2, 3, 5, and 6. See 445 FAC ¶¶ 38-54; Defs.' First 445 Mem. at 4-6; Pl.'s First 445 Opp'n at 6, 17-22, 24.[7]

B. 2010 FOIA Requests

1. Counts Seven, Nine, and Ten in No. 11-445: February 6, 2010 FOIA Requests to the CIA, State Department, and NSA

On February 6, 2010, the plaintiff submitted three substantially identical FOIA requests-one to the CIA, one to the State Department, and one to the National Security Agency ("NSA"). The request to the CIA sought "all current training handbooks, manuals, guidelines, checklists, worksheets, and similar documents provided to [CIA] FOIA and Privacy Act analysts (both agency employees and contractors)." See Third Lutz Decl. Ex. G at 1, No. 11-445, ECF No. 52-1. The plaintiff's requests to the State Department and the NSA were identical, except that they sought training materials provided to State Department and NSA FOIA and Privacy Act analysts, respectively. See Decl. of Sheryl L. Walter (Oct. 1, 2012) ("First Walter Decl.") Ex. 1, No. 11-445, ECF No. 29-10; Decl. of Pamela N. Phillips (Sept. 28, 2012) ("Phillips Decl.") Att. 1, No. 11-445, ECF No. 29-13. All three requests also limited the scope of the request to "documents in current use as of 6 February 2010." See Third Lutz Decl. Ex. G at 1; Walter Decl. Ex. 1, at 1; Phillips Decl. Ex. 1, at 1.

The first agency to issue a response to the plaintiff's requests was the CIA. On May 26, 2010, the CIA issued a final response to the plaintiff, in which it released two documents in full and withheld twenty-nine other responsive documents in full pursuant to FOIA Exemptions 1, 2, 3, and/or 5. See Third Lutz Decl. ¶ 11, No. 11-445, ECF No. 29-1. In Count Seven of No. 11-445, the plaintiff challenges all of the CIA's withholding determinations under FOIA Exemptions 1, 2, 3, and/or 5. See 445 FAC ¶¶ 55-61; Defs.' First 445 Mem. at 7.

The next agency to respond to the plaintiff's February 6, 2010 FOIA requests was the NSA. On April 22, 2011, the NSA issued a final response to the plaintiff, in which it released, in part, over 500 pages of responsive records, with redactions made pursuant to FOIA Exemptions 1, 3, 5, 6, and/or 7; the NSA also withheld one document in its entirety pursuant to FOIA Exemption 5. See Phillips Decl. ¶ 7; Phillips Decl. Att. 3, No. 11-445, ECF No. 29-13. In Count Ten of No. 11-445, the plaintiff challenges the adequacy of the NSA's search efforts in responding to the February 6, 2010 FOIA request, and in particular the plaintiff challenges the NSA's failure to locate templates that are responsive to the request. See 445 FAC ¶¶ 73-77; Defs.' First 445 Mem. at 10.

The State Department was the final agency to respond to the plaintiff's February 6, 2010 FOIA requests. The State Department produced responsive records to the plaintiff in two initial releases on October 20, 2011 and January 26, 2012. See First Walter Decl. ¶¶ 8-9. In these two initial releases, the State Department produced a total of 103 records in whole or in part, with redactions made to seven documents pursuant to FOIA Exemptions 3 and/or 6. See First Walter Decl. Exs. 5-6, No. 11-445, ECF No. 29-10. By e-mail dated February 4, 2012, the plaintiff requested that the State Department search for certain records referenced in a document produced in the first two State Department releases. See First Walter Decl. Ex. 8, No. 11-445, ECF No. 29-10. In response to this request, the State Department conducted further searching, and on March 9, 2012 released sixteen responsive records to the plaintiff, in whole or in part. See First Walter Decl. Ex. 9, No. 11-445, ECF No. 29-10. By letter dated September 26, 2012, after "a further search, " the State Department released one more responsive document to the plaintiff in full. See First Walter Decl. Ex. 10, No. 11-445, ECF No. 29-10.

These four productions, totaling the release, in whole or in part, of 120 records, however, were not the final correspondence from the State Department in response to the plaintiff's FOIA request. On March 1, 2013, the State Department's Bureau of Diplomatic Security responded to the plaintiff's February 6, 2010 FOIA request, releasing twenty-six responsive records which had not been previously released. See Notice of Recent Development Regarding Count 9, at 1, No. 11-445, ECF No. 49. According to the State Department, this was "an inadvertent release of records, " which occurred because "at some point in the processing of Plaintiff's FOIA request, it was mistakenly sent to [the Bureau of Diplomatic Security]." See Third Decl. of Sheryl L. Walter (June 18, 2013) ("Third Walter Decl.") ¶ 3, No. 11-445, ECF No. 51-1. In Count Nine of No. 11-445, the plaintiff challenges three aspects of the State Department's response to its February 6, 2010 FOIA request: (1) the withholding of certain information from one responsive record pursuant to FOIA Exemption 3; (2) the adequacy of the State Department's search efforts; and (3) the failure of the State Department to release responsive records in an electronic format. See 445 FAC ¶¶ 68-72; Defs.' First 445 Mem. at 9.

2. Counts Two and Three in No. 11-445: February 9, 2010 FOIA Requests to the CIA

On February 4, 2010, the CIA informed the plaintiff that, with respect to his December 1, 2009 FOIA request for FOIA processing notes related to previous FOIA requests, the CIA could not retrieve FOIA requests by an organization's name, but only by a person's name. See Third Lutz Decl. Ex. C at 1, No. 11-445, ECF No. 52-1. In response, the plaintiff submitted a letter to the CIA on February 9, 2010, asking the CIA to search for records related to specific previous FOIA requests submitted by individuals associated with four organizations, including NSC and the James Madison Project ("JMP"). Id. With respect to JMP, the plaintiff requested that the CIA search for records of processing notes related to twenty-seven specific FOIA requests submitted by Mark Zaid, Bradley Moss, and Kelly McClanahan. Id. Likewise, with respect to NSC, the plaintiff requested that the CIA search for records of processing notes related to seven specific FOIA requests submitted by Kelly McClanahan. See Third Lutz Decl. Ex. C at 1. The CIA considered these two new FOIA requests and assigned each of them a separate request identifier number. See Third Lutz Decl. ¶¶ 9-10.

On July 30, 2010, the CIA provided a final response to the plaintiff's request regarding previous FOIA requests submitted by Kelly McClanahan on behalf of NSC. See Third Lutz Decl. Ex. F, No. 11-445, ECF No. 52-1. The CIA released three responsive documents in full and thirty responsive documents in part, with redactions made pursuant to FOIA Exemptions 3, 5, and/or 6. Third Lutz Decl. ¶ 10. The CIA also withheld seventeen responsive documents in full pursuant to FOIA Exemptions 1, 3, 5, and/or 6. Id. In Count Three of No. 11-445, the plaintiff challenges the CIA's decision to withhold information responsive to this request pursuant to FOIA Exemptions 1, 3, and 5. See 445 FAC ¶¶ 25-31; Defs.' First 445 Mem. At 4; Pl.'s First 445 Opp'n at 23 n.19. On September 29, 2010, the CIA provided a final response to the plaintiff's request regarding previous FOIA requests submitted by Mark Zaid, Bradley Moss, and Kelly McClanahan on behalf of JMP. See Third Lutz Decl. Ex. D, No. 11-445, ECF No. 52-1. The CIA produced 14 responsive documents in full and 106 responsive documents in part, with redactions made pursuant to FOIA Exemptions 3, 5, and/or 6. Third Lutz Decl. ¶ 9. The CIA also withheld 215 responsive documents in full pursuant to FOIA Exemptions 1, 3, and/or 5. Id. In Count Two of No. 11-445, the plaintiff challenges the CIA's decision to withhold information responsive to this request pursuant to FOIA Exemptions 1, 3, and 5. See 445 FAC ¶¶ 18-24; Defs.' First 445 Mem. At 3; Pl.'s First 445 Opp'n at 23 n.19.

3. Count Seventeen in No. 11-444: May 4, 2010 FOIA Requests to the CIA

By letter dated May 4, 2010, the plaintiff submitted a FOIA request to the CIA for two categories of records: (1) "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, " and (2) "The 18 FOIA requests received by the CIA during Fiscal Year 2006 that were classified as full denials' on the grounds of records not reasonably described' in... [the CIA's] 2006 Annual Report." See First Lutz Decl. Ex. Y at 1, No. 11-444, ECF No. 20-4. Also on May 4, 2010, the plaintiff submitted a second FOIA request to the CIA, which sought three other categories of similar records: (1) "The 510 FOIA requests received by the [CIA] during Fiscal Year 2009 that were classified as full denials' because they were considered Improper FOIA Requests for Other Reasons' in... [the CIA's] 2009 Annual Report, " (2) "The 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, " and (3) "The 79 FOIA requests received by the CIA during Fiscal Year 2006 that were classified as full denials' because they were considered not proper FOIA requests for some other reason' in... [the CIA's] 2006 Annual Report." First Lutz Decl. Ex. Z at 1, No. 11-444, ECF No. 20-4. For both of these requests, the plaintiff specified that "[o]nly the initial request letters and the return CIA correspondence stating that the requests do not reasonably describe the records sought should be considered responsive to this request." First Lutz Decl. Exs. Y; see id. Ex. Z.

On August 7, 2010, the plaintiff's counsel sent a facsimile to the CIA stating "it would probably be easier to just consolidate the two requests [submitted on May 4, 2010]" and "I would not object if you chose to combine them and treat them as a single request." First Lutz Decl. Ex. AA, No. 11-444, ECF No. 20-4. Hence, on November 17, 2010, the CIA informed the plaintiff that the CIA was combining the two FOIA requests sent on May 4, 2010 into a single request. See First Lutz Decl. Ex. BB, No. 11-444, ECF No. 20-4. On August 31, 2011, the CIA provided a final response regarding this combined FOIA request, in which it released five responsive documents in full, released 1, 010 responsive documents in part with redactions made pursuant to FOIA Exemptions 3, 5, and/or 6, and withheld three documents in full pursuant to FOIA Exemptions 3 and/or 6. See First Lutz Decl. Ex. CC at 2, No. 11-444, ECF No. 20-4; First Lutz Decl. ¶ 68.[8] After the plaintiff requested by e-mail to the DOJ that the CIA confirm the totality of its production, the CIA provided ten additional responsive documents in part with redactions made pursuant to FOIA Exemptions 3 and 6. See First Lutz Decl. ¶ 69. In Count Seventeen of No. 11-444, the plaintiff challenges the CIA's decision to withhold information responsive to this combined request pursuant to FOIA Exemptions 3 and 5. See 444 FAC ¶¶ 87-93; Def.'s First 444 Mem. at 8; Pl.'s Opp'n to Def.'s Mot. Summ. J. on Counts 1, 8, 9, 10, 17, 18, and 20 ("Pl.'s First 444 Opp'n") at 30-35, No. 11-444, ECF No. 26. In Count Seventeen, the plaintiff also challenges the failure of the CIA to release responsive records in an electronic format. See Pl.'s First 444 Opp'n at 39-40.

4. Count Three in No. 11-443: May 12, 2010 FOIA Request to the CIA

On May 12, 2010, the plaintiff submitted a FOIA request to the CIA, which sought "all Tables of Contents (TOCs') from the [CIA] in-house journal Studies in Intelligence. " See Decl. of Martha M. Lutz (Aug. 8, 2012) ("Second Lutz Decl.") Ex. A at 1, No. 11-443, ECF No. 27-1. Via telephone on June 4, 2010, the plaintiff clarified that it was requesting "all classified TOCs, ' and any unclassified TOCs, ' that were not available on the CIA website." Second Lutz Decl. Ex. B at 1, No. 11-443, ECF No. 27-1. On December 5, 2011, the CIA provided a final response to the plaintiff's May 12, 2010 FOIA request, releasing 43 responsive documents in full and 131 responsive documents in part, with redactions made pursuant to FOIA Exemptions 1 and/or 3. See Second Lutz Decl. Ex. C at 1, No. 11-443, ECF No. 27-1. By e-mail on December 30, 2011, the plaintiff notified the CIA's counsel that it believed there were several records missing from the CIA's production. See Second Lutz Decl. ¶ 9, No. 11-443, ECF No. 27-1. In response, the CIA conducted a supplemental search and, by letters dated February 7, 2012 and February 14, 2012, the CIA released to the plaintiff twenty-nine additional responsive TOCs, in part, with redactions made pursuant to FOIA Exemptions 1 and 3. See Second Lutz Decl. ¶ 9; Second Lutz Decl. Exs. D-E, No. 11-443, ECF No. 27-1. In its February 7, 2012 communication, the CIA also released to the plaintiff certain information that had been redacted from previously released documents. See Second Lutz Decl. Ex. D at 2. In Count Three of No. 11-443, the plaintiff challenges the CIA's withholding of information responsive to the May 12, 2010 FOIA request under FOIA Exemptions 1 and 3. See Compl. ("443 Compl.") ¶¶ 29-33, No. 11-443, ECF No. 1; Mem. in Supp. Def.'s Mot. Summ J. on Count Three ("Def.'s First 443 Mem.") at 1, ECF No. 27.[9]

5. Count Nine in No. 11-444: May 13, 2010 FOIA Request to the CIA

By letter dated May 13, 2010, the plaintiff submitted a FOIA request to the CIA, which sought "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')." First Lutz Decl. Ex. M, No. 11-444, ECF No. 20-3. In this letter, NSC provided "guidelines" to the CIA regarding "what we consider a representative sample, '" which included (1) "[o]nly final official reports or memoranda that discuss an MPAC/OLA analyst's conclusions about a target's psychology, " (2) "[n]o more than twenty reports/memoranda for each year, " (3) "[f]our reports/memoranda for each year (unless less were created that year) for individuals in each category of intelligence target, " and (4) "[r]easonable variety in the intelligence targets wherever possible (e.g., foreign government officials should be from a variety of foreign governments, terrorist leaders should be from different terrorist organizations, etc.)." Id. at 1-2. As to the fourth guideline, NSC further stated that "[f]or the foreign government officials, we would also appreciate if possible a variety of the type of officials (e.g., some heads of state, some intelligence officials, some law enforcement officials, some financial officials, etc.)." Id. at 2. The plaintiff's letter also stated "[y]ou may limit your search to records created since 2000, but we do not have any particular intelligence targets in mind, since the purpose of this information is to analyze the style and methodology of the CIA's leadership analysts." Id. at 1.

The CIA provided a final response to the plaintiff's request on June 23, 2010, stating "[w]e cannot accept your FOIA request in its current form, because it would require the Agency to perform an unreasonably burdensome search." First Lutz Decl. Ex. N at 1, No. 11-444, ECF No. 20-3. Citing "the breadth and lack of specificity of [NSC's] request, " the CIA informed the plaintiff that "[t]he FOIA does not provide a mechanism to perform research." Id. The CIA also "encourage[d] [NSC] to refine the scope of [its] request (such as including a narrower time frame for, and more specific descriptions of, the information you seek) to enable [the CIA] to conduct a reasonable search for responsive information." Id. In Count Nine of No. 11-444, the plaintiff contends that the CIA improperly refused to process this May 13, 2010 FOIA request. See 444 FAC ¶¶ 46-50; Pl.'s First 444 Opp'n at 16-18.

6. Count Eight in No. 11-444: July 5, 2010 FOIA Request to the CIA

On July 5, 2010, the plaintiff submitted a FOIA request to the CIA for "a record that would indicate the ten individuals responsible for the most FOIA requests submitted (each) in Fiscal Years 2008, 2009, and 2010." See First Lutz Decl. Ex. K at 1, No. 11-444, ECF No. 20-2. "In other words, " the plaintiff continued, "we seek a list, index, printout, or similar document from which we could determine which individual submitted the most FOIA requests each year, which individual submitted the second most FOIA requests each year, and so forth down to the tenth most prolific requester." Id. In addition to (1) an index of the ten most prolific FOIA requesters, the plaintiff also proposed to the CIA three alternative means by which to obtain the same information: (2) "[a]n index including all requesters for each year, " (3) "FOIA request letters from the ten most prolific requesters for each year, " or (4) "[a]ll FOIA request letters submitted to the CIA for each year." Id. at 1-2. On July 22, 2010, the CIA responded to this request, stating "[w]e... 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." First Lutz Decl. Ex. L at 1, No. 11-444, ECF No. 20-3. As a result, the CIA informed the plaintiff "we must decline to process this request." Id.

On February 29, 2012, however, "the CIA advised plaintiff that it reconsidered [the July 5, 2010 FOIA request], " and "advised that it could process plaintiff's fourth option, i.e., all FOIA requests submitted to the Agency for each of the three requested years, in paper form." Decl. of Martha M. Lutz (Mar. 18, 2013) ("Seventh Lutz Decl.") ¶ 7, No. 11-444, ECF No. 43-1. The CIA also "determined that NSC constituted an all other' requester for fee category purposes and stated that... plaintiff would be required to pay the duplication costs associated with processing the request, which were estimated to exceed $950." Id. In connection with these duplication costs, "[t]he Agency advised plaintiff that a commitment to pay fees and an advance payment of $250 were required prior to the processing of [its] request.'" Id. (emphasis in original). Finally, the CIA's letter stated that "if the Agency did not received the fee commitment and advance payment within 45 days it would administratively close the request." Id. NSC never provided a fee commitment or an advance payment, and therefore the CIA closed the request. Id. In Count Eight of No. 11-444, the plaintiff challenges the CIA's refusal "to produce the record requested as option 2' in NSC's request, " i.e., "an index including all requesters for each year." See Pl.'s Opp'n to Def.'s Mot. Summ. J. on Counts Eight & Twenty-One ("Pl.'s Second 444 Opp'n") at 3-4, No. 11-444, ECF No. 46; see also 444 FAC ¶¶ 41-45.

7. Count One in No. 11-444: August 8, 2010 FOIA Requests to the CIA

By letters dated August 8, 2010, the plaintiff submitted four FOIA requests to the CIA, seeking "a database listing of all the FOIA requesters from FY 2008-present that [the CIA has] classified as" either "educational or scientific, " "commercial, " "all other, " or "news media." See First Lutz Decl. Exs. A-D, No. 11-444, ECF No. 20-2. Each request sought a database listing as to each of the four fee requester categories. See id. By letters dated September 30, 2010, the CIA refused to process these requests, stating that "[t]he FOIA does not require federal agencies to create a record, collect information, conduct research, or analyze data." See First Lutz Decl. Exs. E-H, No. 11-444, ECF No. 20-2. By facsimile dated October 2, 2010, the plaintiff administratively appealed the CIA's refusal to process these four FOIA requests, contending "the CIA has already tacitly admitted that it possesses the ability to sort its FOIA database by requester category, as evidenced by the publication in its FOIA Electronic Reading Room of the FY 2003 commercial' requesters." See First Lutz Decl. Ex. I at 1, No. 11-444, ECF No. 20-2. The CIA responded on October 21, 2010, stating for each of the four FOIA requests that, "since we did not provide you with appeal rights, we cannot accept your appeal." First Lutz Decl. Ex. J, No. 11-444, ECF No. 20-2. In Count One of No. 11-444, the plaintiff challenges the CIA's refusal to process its August 8, 2010 FOIA requests. See 444 FAC ¶¶ 5-10; Pl.'s First 444 Opp'n at 10-14.

C. 2011 FOIA Requests

1. Count Eighteen in No. 11-444: January 26, 2011 FOIA Request to the CIA

By letter dated January 26, 2011, the plaintiff submitted a FOIA request to the CIA seeking "a copy of all [CIA] records pertaining to the search tools and indices available to the Office of Information Management Services (IMS') for conducting searches of its own records in response to FOIA requests." See First Lutz Decl. Ex. Q at 1, No. 11-444, ECF No. 20-3. The plaintiff clarified later in this request that it was seeking "records that describe or discuss the search tools and indices that the IMS (as a CIA component) can choose between when devising a search strategy for IMS records." Id. The plaintiff further specified that the request was "limited to only those search tools and indices that would be personally used by IMS personnel to search IMS records systems." Id. Finally, the plaintiff specified two categories of records that would be responsive to the request: (1) "Records which describe the search tools and indices, " and (2) "The actual contents of the indices." Id. On May 26, 2011, the CIA provided a final response to the plaintiff's request. See First Lutz Decl. Ex. S, No. 11-444, ECF No. 20-3. The CIA located three documents responsive to the plaintiff's request, one of which it released in full, and two of which it released in part, with redactions made pursuant to FOIA Exemption 3. See id. In Count Eighteen of No. 11-444, the plaintiff challenges three aspects of the CIA's response to the plaintiff's January 26, 2011 FOIA request: (1) the decision to withhold information under FOIA Exemption 3; (2) the adequacy of the CIA's search efforts; and (3) the failure of the CIA to release responsive records in an electronic format, as requested. See 444 FAC ¶¶ 94-98; Pl.'s First 444 Opp'n at 24-26, 35-40.

2. Count Thirteen in No. 11-445: February 11, 2011 FOIA Request to the CIA

On February 11, 2011, the plaintiff submitted a FOIA request to the CIA, which sought "all [CIA] records associated with the administrative processing of [two specific FOIA requests], which were referred to the CIA by the Federal Bureau of Investigation." See Third Lutz Decl. Ex. I at 1, No. 11-445, ECF No. 52-1. On October 7, 2011, the CIA provided a final response to this request, releasing two responsive records in part, with redactions made pursuant to FOIA Exemption 3, and withholding seven responsive records in full pursuant to FOIA Exemptions 3 and 5. See Third Lutz Decl. ¶ 12; Third Lutz Decl. Ex. J at 1, No. 11-445, ECF No. 52-1. In Count Thirteen of No. 11-445, the plaintiff challenges the CIA's decision to withhold responsive information pursuant to FOIA Exemptions 3 and 5. See 445 FAC ¶¶ 88-92; Defs.' First 445 Mem. at 10-11.

3. Count Ten in No. 11-444: February 16, 2011 FOIA Request to the CIA

Finally, by letter dated February 16, 2011, the plaintiff submitted a FOIA request to the CIA, seeking "a copy of all [CIA] records pertaining to the IBM supercomputer Watson.'" First Lutz Decl. Ex. O at 1, No. 11-444, ECF No. 20-3. On March 2, 2011, the CIA responded to the plaintiff that "[w]e cannot accept your FOIA request in its current form because it would require the Agency to perform an unreasonably burdensome search." See First Lutz Decl. Ex. P, No. 11-444, ECF No. 20-3. Citing "the breadth and lack of specificity of [the plaintiff's] request" and "the way in which [the CIA's] records systems are configured, " the CIA concluded that "the Agency cannot conduct a reasonable search for information responsive to your request." Id. The CIA "encourage[d] [the plaintiff] to refine the scope of [its] request (such as contracts, if they exist, which would explain records pertaining to Watson') to enable [the CIA] to conduct a reasonable search for responsive information." Id. In Count Ten of No. 11-444, the plaintiff challenges the CIA's refusal to process it February 16, 2011 FOIA request. See 444 FAC ¶¶ 51-55; Pl.'s First 444 Opp'n at 19-24.

D. Facts Related to the Plaintiff's Motion for Sanctions

In December 2011, an unidentified third party provided the plaintiff's counsel with two CIA documents, which counsel concluded may contain classified information. See Pl.'s Mot. to Compel Production ("Pl.'s First Mot. to Compel") at 1, No. 11-443, ECF No. 26. Since the documents were ostensibly relevant to the plaintiff's claim in Count Three of No. 11-443, challenging the CIA's withholding of responsive information from tables of contents for the CIA's in-house journal Studies in Intelligence, see supra Part I.B.4, plaintiff's counsel contacted government counsel for the CIA, who referred plaintiff's counsel to the FBI. See Pl.'s First Mot. to Compel at 1. In January 2012, an FBI field agent met with plaintiff's counsel, at which time plaintiff's counsel signed a non-disclosure agreement as to any classified material contained in the two CIA documents and also turned over paper and electronic versions of the two records to the FBI. See id. at 2. In that meeting, plaintiff's counsel requested that the FBI return to him redacted versions of the two documents, with all classified information deleted. Id. In a later meeting held in June 2012, the FBI informed plaintiff's counsel that they would not be releasing redacted versions of the documents to him. See id. Since plaintiff's counsel wished to submit the non-classified portions of the two documents to the Court, the plaintiff filed a motion on August 3, 2012 to compel the CIA to "provid[e] [plaintiff's counsel] with redacted copies" of the two documents in question. See id. at 4. The CIA opposed the relief sought by the plaintiff, contending that "[plaintiff's counsel's] alleged interactions with the FBI are well outside the scope of this action" since "[t]he FBI is not a party to this case" and "the FBI's interactions were with [plaintiff's counsel] in his individual capacity." Def.'s Opp'n to Pl.'s Mot. to Compel at 1-2, No. 11-443, ECF No. 28.

On August 15, 2012, the Court granted the plaintiff's motion to compel over the CIA's objection and directed the CIA to provide the plaintiff "a copy of each of the two CIA documents referenced in the plaintiff's motion, if possible, with all classified information redacted therefrom." See Minute Order dated Aug. 15, 2012, No. 11-443. On September 3, 2012, the plaintiff filed a motion, asking the Court "to compel CIA to comply with [the Court's] earlier Order." See Pl.'s Mot. to Compel Compliance with Court's 15 Aug. 2012 Order ("Pl.'s Second Mot. to Compel") at 2, No. 11-443, ECF No. 31. In that motion, the plaintiff stated that "[i]nstead of redacting only the classified information, " the CIA "redacted all information it considered exempt under [FOIA] Exemptions (b)(1) and/or (b)(3)." Id. at 1-2. Therefore, the plaintiff asked the Court to order the CIA to produce "copies of these records with only the classified information redacted, as the Court ordered." Id. at 2. On September 21, 2012, the Court granted the plaintiff's motion in part and ordered the CIA to produce redacted versions of the two documents to the plaintiff, clearly indicating on each document which portions of the document were classified-and therefore redacted pursuant to FOIA Exemption 1-and which portions were redacted pursuant to FOIA Exemption 3. See Order dated Sept. 21, 2012. The Court did not order the CIA to release any information from these two documents that the CIA believed were protected from disclosure by the CIA Act or by Executive Order 13, 525 as classified in the interest of national security.

The CIA produced redacted versions of the two documents as instructed, yet the parties continued to disagree about whether the CIA had complied with the Court's Order. See Joint Status Report at 1, No. 11-443, ECF No. 35. Specifically, the plaintiff complained, on September 3, 2012, that the CIA had marked certain information as being exempt under Exemption 3, which the CIA's Vaughn index had stated was classified, and vice-versa. See id. at 2-3. Plaintiff's counsel had notified the CIA's counsel of this inconsistency in an e-mail five days before the plaintiff brought the issue to the attention of the Court. See Pl.'s Reply to Opp. To Mot. To Compel Ex. D, No. 11-443, ECF No. 33-2 (Aug. 29, 2012 e-mail from plaintiff's counsel to CIA's counsel stating "I think you must have [the classified material and the CIA Act redactions] backwards"). The CIA, however, maintained that "[t]he documents the CIA produced in response to the Court's order reflect the current status of the information they contain." See Joint Status Report at 2. In light of the apparent discrepancy, the plaintiff once again asked for relief, seeking an order directing the CIA "to take whatever steps are necessary to make its redactions in these releases consistent with its previous presentations to the Court." Id. at 4.

To resolve this ongoing dispute, the Court held a status conference on October 12, 2012. At that status conference, plaintiff's counsel once again asserted that the CIA had gotten the two categories of redactions "backwards." See Tr. of Status Conference (Oct. 12, 2012) at 13:1-2, No. 11-443, ECF No. 69; see also id. at 16:9-12 ("[E]verything that is listed as classified in the documents is listed as unclassified [in the Vaughn index]. It looks like it was a simple administrative error."). The CIA's counsel, however, maintained once again that "we've clearly identified for [plaintiff's counsel] in our Vaughn index and in the two documents that we produced pursuant to the Court's order exactly what's classified and what's subject to the CIA Act." Id. at 19:15-19. The Court asked the CIA's counsel in this regard: "Do you need to update your Vaughn index?" to which he replied "I need to check with my client agency, but I don't believe so." Id. at 26:18-21. The Court further stated, "[a]s officers of the court, if [the CIA's lawyers] find out that some information that's been presented is incorrect, they have an ongoing and continuing obligation to correct themselves." Id. at 26:1-4. Following the October 12, 2012 status conference, and based on CIA counsel's representations that the redactions were correctly designated, the Court entered a minute order stating that "the plaintiff is entitled to rely on the designations of information in the two... indices at issue, as provided by the defendant, regarding whether redacted information in those documents is either classified or subject to protection under the CIA Act." Minute Order dated Oct. 12, 2012, No. 11-443.

On October 22, 2012, the CIA submitted a notice to the Court, stating that "[i]n [the CIA's] earlier production, redactions were marked with either a 1' or 2, ' which appears to have created some confusion as to whether the redacted information was withheld because it is classified, subject to the CIA Act, or both." See Notice at 1, No. 11-443, ECF No. 40. Thus, ostensibly "[i]n order to clarify the issue and provide Plaintiff's counsel with clear documents upon which he can rely... [the CIA] now produced copies of the two records with each redaction marked clearly as Classified' or CIA Act' protected." Id. The CIA stated that it was "hopeful the updated marking will resolve any lingering confusion." Id. at 1. In the versions of the two documents attached to the CIA's October 22, 2012 notice, however, the CIA had reversed its designations, as compared to its September 27, 2012 filing. Compare ECF Nos. 35-1, 35-2, with ECF Nos. 40-1, 40-2. The CIA's notice did now acknowledge that its previous representations had been in error but, just as plaintiff's counsel had warned two months earlier, information that had earlier been marked as classified was now marked as withheld under the CIA Act, and vice-versa. See id.

As a result, the plaintiff filed a motion for sanctions against the CIA, contending that the CIA had "engaged in an extended campaign of misrepresentation to both [the plaintiff] and the Court regarding the nature of the information it redacted from the two documents at issue." See Pl.'s Mot. for Sanctions at 1, No. 11-443, ECF No. 50. The CIA opposed the motion and submitted, at the Court's direction, two sworn declarations explaining what had caused the CIA mistakenly for weeks to defend the accuracy of its designations. Specifically, the CIA's chief of its Litigation Support Unit, Martha Lutz, stated that the CIA's error "was the product of internal miscommunication rather than bad faith." See Decl. of Martha M. Lutz (Feb. 25, 2013) ("Sixth Lutz Decl.") ¶ 4, No. 11-443, ECF No. 61-1. Ms. Lutz explained that, when the CIA's information review officer ("IRO") reviewed the two documents in question, she used a notation system in which she wrote "(b)(3) methods" in the margins of the documents next to certain redacted information. See id. ¶ 7. These notations were intended to convey that the specified redactions were protected under the National Security Act as classified intelligence sources or methods-and thus also protected by FOIA Exemption 1 as classified information-but the CIA's counsel "interpreted this notation system to mean that redactions marked... as (b)(3) methods' were those protected by FOIA Exemption (b)(3)" under the CIA Act. See id. ¶¶ 7-8. "Based on this misunderstanding, the CIA attorney incorrectly cited some of the justifications for redacting the material to the DOJ attorney, who in turn shared that information with plaintiff." Id. ¶ 9.

E. Procedural History

The plaintiff filed the Complaints in each of these three actions on February 28, 2011, and, shortly thereafter, filed a First Amended Complaint in Nos. 11-444 and 11-445 on March 21, 2011. On May 20, May 27, and June 3, 2011, the CIA filed partial motions to dismiss in No. 11-443, 11-444, and 11-445, respectively. These three motions, filed pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), collectively moved for dismissal of twenty-five of the forty-five claims originally alleged by the plaintiff, and the motions became ripe on July 21, 2011. While these three motions to dismiss were pending, the Court ruled on ten other, non-dispositive motions, including motions to stay, to compel, and to bifurcate.

On October 17, 2012, in a lengthy opinion, the Court granted in part and denied in part the CIA' three partial motions to dismiss. See NSC I, 898 F.Supp.2d 233. Specifically, the Court dismissed all but three of the plaintiff's twenty-four policy-or-practice claims-including all of the plaintiff's claims under the Mandamus Act and the Administrative Procedure Act. See id. at 290. In addition to denying the government's motion to dismiss with respect to three of the plaintiff's policy-or-practice claims (the Assignment of Rights Policy, the Cut-Off Date Policy, and Document-Level Exemption Policy), the Court also denied the government's motion to dismiss with respect to Count One in No. 11-443, which challenged the CIA's refusal to process a FOIA request that was assigned to the plaintiff by an organization called the James Madison Project. See id. at 290-91.

On March 21, 2013, this Court stayed all three actions until all dispositive motions were fully briefed. Between December 20, 2011 and May 17, 2013, a total of eight motions or cross-motions for summary judgment were filed across these three related actions by all parties. The last of these motions became ripe on June 11, 2013. Additionally, on November 21, 2012, the plaintiff filed a motion for leave to file a second amended complaint in No. 11-445, and on January 11, 2013, the plaintiff filed a motion for sanctions in No. 11-443. Thus, currently pending before the Court in these related actions are ten motions: eight motions or cross-motions for summary judgment, one motion for leave to file a second amended complaint, and one motion for sanctions. For the reasons discussed below, the Court grants in part and denies in part the defendants' six motions for summary judgment, grants the plaintiff's cross-motions for summary judgment, denies the plaintiff's motion for leave to file a second amended complaint, and denies the plaintiff's motion for sanctions.[10]

II. LEGAL STANDARDS

A. FOIA

Congress enacted the FOIA, 5 U.S.C. § 552, "to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny.'" Am. Civil Liberties Union v. U.S. Dep't of Justice, 655 F.3d 1, 5 (D.C. Cir. 2011) (quoting Dep't of the Air Force v. Rose, 425 U.S. 352, 361 (1976)). 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 (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 (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, 131 S.Ct. 1259, 1262 (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 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, 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)).

Finally, the D.C. Circuit has recognized that, separate from claims seeking relief for specific requests made under the FOIA, requesting parties may also assert a "claim that an agency policy or practice will impair the party's lawful access to information in the future." Payne Enters., Inc. v. United States, 837 F.2d 486, 491 (D.C. Cir. 1988) (emphasis in original); accord Newport Aeronautical Sales v. Dep't of the Air Force, 684 F.3d 160, 164 (D.C. Cir. 2012). The Court in Payne held that a policy-or-practice claim is viable "[s]o long as an agency's refusal to supply information evidences a policy or practice of delayed disclosure or some other failure to abide by the terms of the FOIA, and not merely isolated mistakes by agency officials." Payne, 837 F.2d at 491.

B. Summary Judgment

"FOIA cases typically and appropriately are decided on motions for summary judgment.'" Georgacarakos v. FBI, 908 F.Supp.2d 176, 180 (D.D.C. 2012) (quoting Defenders of Wildlife v. U.S. Border Patrol, 623 F.Supp.2d 83, 87 (D.D.C. 2009)). With respect to the applicability of exemptions and the adequacy of an agency's search efforts, summary judgment may be based solely on information provided in the agency's supporting declarations. See, e.g., ACLU/DOD, 628 F.3d at 619; Students Against Genocide, 257 F.3d at 838. With respect to policy-or-practice claims, the moving party must establish "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). Summary judgment is properly granted against a party who, "after adequate time for discovery and upon motion, ... fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The burden is on the moving party to demonstrate that there is an "absence of a genuine issue of material fact" in dispute. Id. at 323.

In ruling on a motion for summary judgment, the Court must draw all justifiable inferences in favor of the nonmoving party and shall accept the nonmoving party's evidence as true. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The Court is only required to consider the materials explicitly cited by the parties, but may on its own accord consider "other materials in the record." FED. R. CIV. P. 56(c)(3). For a factual dispute to be "genuine, " the nonmoving party must establish more than "[t]he mere existence of a scintilla of evidence in support of [its] position, " Liberty Lobby, 477 U.S. at 252, and cannot rely on "mere allegations" or conclusory statements, see Veitch v. England, 471 F.3d 124, 134 (D.C. Cir. 2006); Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999); Harding v. Gray, 9 F.3d 150, 154 (D.C. Cir. 1993); accord FED. R. CIV. P. 56(e). Rather, the nonmoving party must present specific facts that would enable a reasonable jury to find in its favor. See, e.g., FED. R. CIV. P. 56(c)(1). "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Liberty Lobby, 477 U.S. at 249-50 (citations omitted).

C. Leave to File Amended Complaint

Federal Rule of Civil Procedure 15 provides that, if more than twenty-one days have passed since the filing of an original complaint, "a party may amend its [complaint] only with the opposing party's written consent or the court's leave." FED. R. CIV. P. 15(a)(2). "The court should freely give leave when justice so requires." Id. The D.C. Circuit has held that "it is an abuse of discretion to deny leave to amend unless there is sufficient reason, such as undue delay, bad faith or dilatory motive[, ] repeated failure to cure deficiencies by [previous] amendments[, ] or futility of amendment." Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996) (internal quotation marks omitted). In this regard, "[c]ourts will properly deny a motion to amend when it appears that the plaintiff is using Rule 15 to make the complaint a moving target, to salvage a lost case by untimely suggestion of new theories of recovery, [or] to present theories seriatim in an effort to avoid dismissal." Minter v. Prime Equip. Co., 451 F.3d 1196, 1206 (10th Cir. 2006) (citations and internal quotation marks omitted). When a plaintiff seeks leave to amend its complaint in "an attempt to evade the effect of [the Court's] Memorandum Opinion and Order dismissing the plaintiff's claims against the moving defendants, the request will be denied." See Kurtz v. United States, No. 10-1270, 2011 WL 2457923, at *1 n.1 (D.D.C. June 20, 2011) (citing Brown v. FBI, 744 F.Supp.2d 120, 123 (D.D.C. 2010)); see also Becker v. District of Columbia, 258 F.R.D. 182, 185 (D.D.C. 2009) ("Waiting to move to amend until after the close of discovery and after the filing of or ruling upon dispositive motions has been considered an undue delay.").

III. DISCUSSION

A wide variety of issues have been presented to the Court in the ten motions currently pending. The Court will begin by explaining why it denies the plaintiff's motion for leave to file a second amended complaint in No. 11-445. The Court will then discuss the plaintiff's Motion for Sanctions, filed in No. 11-443. Third, the Court will address the plaintiff's two remaining policy-or-practice claims, which challenge the CIA's Assignment of Rights Policy and Document-Level Exemption Policy. Fourth, the Court will discuss the plaintiff's claims relating to the adequacy of the CIA's, the State Department's, and the NSA's search efforts in response to specific FOIA requests. Fifth, the Court will discuss the plaintiff's claims regarding the CIA's refusal to process certain FOIA requests. Sixth, the Court will discuss the plaintiff's claims regarding the defendants' decisions to withhold certain information pursuant to FOIA Exemptions 1, 2, 3, 5, and 6. Seventh, the Court will discuss the plaintiff's claim that the State Department and the CIA should have provided it with electronic versions of responsive records. Finally, the Court will determine whether the defendants have satisfied their burden to produce all non-exempt, reasonably segregable material to the plaintiff.

A. Motion for Leave to Amend

In its motion for leave to file an amended complaint, the plaintiff seeks to make two modifications to its First Amended Complaint in No. 11-445 "to correct deficiencies identified by the Court in its 17 October 2012 Memorandum Opinion." See Pl.'s Mot. for Leave to File a Second Am. Compl. ("Pl.'s Amendment Mem.") at 3, No. 11-445, ECF No. 36. First, as to Count Fifteen-which challenged the CIA's alleged policy of refusing to provide estimated dates of completion for FOIA requests (the "Non-Provision of Completion Date Policy")-the Court dismissed that claim for lack of standing because the plaintiff had not alleged that it had been subject to the policy in question. See NSC I, 898 F.Supp.2d at 263. The plaintiff now seeks to amend its complaint by adding allegations that it has become subject to that alleged policy, by virtue of FOIA requests submitted after the Court issued its October 17, 2012 opinion. See Pl.'s Amendment Mem. at 3; see also Proposed Second Am. Compl. ¶ 106, No. 11-445, ECF No. 36-1 (alleging refusals to provide estimated dates of completion on October 18, October 24, and November 3, 2012).

The Court concludes that this proposed amended must be denied for undue delay. See, e.g., Firestone, 76 F.3d at 1208. As alleged in the plaintiff's First Amended Complaint, the plaintiff first became aware of the alleged Non-Provision of Completion Date Policy in November 2010-approximately three months before filing the original complaint in No. 11-445, and approximately four months before filing the First Amended Complaint in No. 11-445. See 445 FAC ¶ 102. Further, the defendants specifically challenged the plaintiff's standing to bring this claim in its motion to dismiss, filed on June 3, 2011. See Mem. in Supp. Defs.' Partial Mot. to Dismiss at 6-9, No. 11-445, ECF No. 10-1. Thus, the plaintiff not only had ample opportunity to allege that it had been subject to the alleged policy when it filed its first two complaints in No. 11-445, it also had over sixteen months to seek an amendment to its complaint after the CIA raised the standing issue in its motion to dismiss. The plaintiff chose not to do so, waiting until five weeks after the Court ruled on the motion to dismiss to seek such an amendment. This, in the Court's view, constitutes undue delay.

With respect to Count Eighteen in No. 11-445-which challenges the CIA's alleged policy of refusing to identify responsive records withheld in their entirety at the administrative stage (the "Withheld Document Non-Identification Policy")-the Court dismissed that claim in its October 17, 2012 opinion for failure to state a claim. See NSC I, 898 F.Supp.2d at 285. In so ruling, the Court simply concluded that, during administrative processing, the FOIA "does not require agencies to provide a list of withheld documents, but only to make a reasonable effort to estimate the volume of the documents withheld.'" Id. (quoting Mobley v. Dep't of Justice, 845 F.Supp.2d 120, 124 (D.D.C. 2012)). The plaintiff now asks to "rewrite[e] Count 18 to allege a policy, pattern, or practice of refusing to provide estimates of the volume of records withheld in full." See Pl.'s Amendment Mem. at 3-4. This is an entirely different claim than the one alleged in the First Amended Complaint, and once again, the plaintiff's belated attempt to reshape the nature of its claims constitutes an undue delay. The plaintiff clearly "is using Rule 15 to make the complaint a moving target, to salvage a lost case by untimely suggestion of new theories of recovery." See Minter, 451 F.3d at 1206. This is a naked "attempt to evade the effect of [the Court's] Memorandum Opinion and Order dismissing the plaintiff's claim[], " and therefore "the request will be denied." See Kurtz, 2011 WL 2457923, at *1 n.1.

In sum, the plaintiff's motion to amend its complaint "to correct deficiencies identified by the Court in its 17 October 2012 Memorandum Opinion, " see Pl.'s Amendment Mem. at 3, is not a proper use of Rule 15. The defects in Counts Fifteen and Eighteen in No. 11-445 were identified by the CIA in moving to dismiss those claims, yet the plaintiff did not seek an amendment upon being alerted to these defects. Instead, the plaintiff waited until after the Court granted the defendants' motion regarding these claims.[11] The plaintiff does not claim that it would have been incapable of seeking amendment to its complaint much earlier, [12] and if amendment were permitted now, the CIA would be prejudiced by having to file yet another responsive motion regarding the newly reshaped claims-nearly a year after the Court already granted its prior motion to dismiss in relevant part. Therefore, the Court denies the plaintiff's motion for leave to file a second amended complaint in No. 11-445.

B. Motion for Sanctions

In its motion for sanctions in No. 11-443, the plaintiff contends that the CIA "engaged in an extended campaign of misrepresentation... regarding the nature of the information it redacted from the two documents at issue." See Pl.'s Mot. Sanctions ("Pl.'s Sanctions Mem.") at 1, No. 11-443, ECF No. 50. The plaintiff relies on three bases in moving for sanctions: (1) 28 U.S.C. § 1927, (2) Federal Rule of Civil Procedure 11, and (3) the inherent power of the Court. See id. at 6-7. Regardless of the source of the sanctions, the plaintiff contends that "the evidence is clear that CIA's counsel intentionally, unreasonably, vexatiously, and in bad faith misrepresented the nature of the withheld information in the two Indices for two months, bringing the orderly progression of the case to a screeching halt." Id. at 8. In this regard, the plaintiff clarifies that it "is not maintaining that CIA's opposition to the initial Motion to Compel was sanctionable conduct, nor is [it] saying that the making of the mistake in the first place was sanctionable conduct." Id. Rather, according to the plaintiff, "[i]t was not until CIA refused to acknowledge the mistake, forced the extensive subsequent arguments, and repeatedly represented to the Court that its assessment was correct and the undersigned was wrong that the actions of its counsel became worthy of sanction." Id.

To impose sanctions under the Court's inherent power, "it is settled that a finding of bad faith is required." United States v. Wallace, 964 F.2d 1214, 1219 (D.C. Cir. 1992). With respect to 28 U.S.C. § 1927, which permits a court to impose sanctions against an attorney "who so multiplies the proceedings in any case unreasonably and vexatiously, " the D.C. Circuit "has not established whether the standard [for unreasonable and vexatious conduct] should be recklessness or the more stringent bad faith." See LaPrade v. Kidder Peabody & Co., 146 F.3d 899, 905 (D.C. Cir. 1998). Finally, Rule 11 requires that when an attorney "present[s] to the court a pleading, written motion, or other paper, " such a representation may not be "presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation." FED. R. CIV. P. 11(b). Rule 11 "imposes on any party who signs a pleading, motion, or other paper... an affirmative duty to conduct a reasonable inquiry into the facts and the law before filing, and the applicable standard is one of reasonableness under the circumstances." Bus. Guides, Inc. v. Chromatic Commc'ns Enterprises, Inc., 498 U.S. 533, 551 (1991).

Based on the CIA's submissions, the Court is satisfied that sanctions are not warranted in this case. In particular, the CIA's explanation of the circumstances that led to the inaccurate representations by CIA's counsel establishes that no sanctionable conduct occurred. Of particular importance is the revelation in the CIA's declaration that the CIA's information review officer ("IRO") used a confusing and easily misunderstood notation system when classifying the redactions made to the two documents in question. See Sixth Lutz Decl. ¶¶ 6-8. It was objectively reasonable for the CIA's counsel to rely on the IRO's statements, though unfortunately that reliance turned out to be misplaced. Although the plaintiff is correct to assert that the CIA's inaccurate representations "br[ought] the orderly progression of the case to a screeching halt, " Pl.'s Sanctions Mem. at 8, the conduct on the part of the CIA's counsel was not sanctionable because it appears to have been premised on a reasonable, good-faith belief that the representations were correct at the time. The CIA is admonished to engage in clearer internal communication before making representations to the Court about the agency's positions in the future, but in this particular instance the Court denies the plaintiff's Motion for Sanctions.

C. Policies or Practices

The Court next turns to the plaintiff's remaining policy-or-practice claims. Although both of these claims were summarized in the Court's previous opinion, see NSC I, 898 F.Supp.2d at 243-44, 248-49, the Court will briefly summarize those claims here to aid the clarity of the Court's analysis.

1. Assignment of Rights Policy

In Count Two of No. 11-443, the plaintiff complains that the CIA has a policy of refusing to recognize the assignment of rights related to FOIA requests (the "Assignment of Rights Policy"). See 443 Compl. ¶¶ 18-28. This policy-or-practice claim is closely connected to Count One of No. 11-443, in which the plaintiff alleges that the CIA refused to permit NSC to participate in the administrative appeal proceedings related to a FOIA request that had been assigned to NSC by an organization called the James Madison Project ("JMP").[13] See id. ¶¶ 5-17. The CIA openly admits that it has a policy of not recognizing the assignment of FOIA requests, see Mem. in Supp. Def.'s Mot. Summ. J. on Counts One & Two ("Def.'s Second 443 Mem.") at 2, No. 11-443, ECF No. 54 ("The CIA has adopted a categorical policy against recognizing the assignment of FOIA claims...."), and the plaintiff contends that such a policy violates the FOIA, see Pl.'s Mem. in Opp'n to Def.'s Mot. Summ. J. on Counts One & Two & in Supp. Pl.'s Cross-Mot. Partial Summ. J. on Counts One & Two ("Pl.'s 443 Cross-Mot. Mem.") at 6-7, No. 11-443, ECF No. 57.

The question presented by the Assignment of Rights Policy is as follows: Is it a violation of the FOIA for an agency to refuse to recognize a valid assignment of the rights attached to a FOIA request? The CIA says that a policy of not recognizing assignments does not violate the FOIA, relying on the conclusory assertion that "[a]gencies are not required by the FOIA to recognize the assignment of FOIA requests." Def.'s Second 443 Mem. at 5. The CIA elaborates its interpretation of the statute by pointing to several provisions of the FOIA "that require agencies to make determinations based on the identity of the FOIA requester, " such as the fee-waiver provision, see 5 U.S.C. § 552(a)(4)(A)(ii), the expedited processing provision, see id. § 552(a)(6)(E)(i)(I), and Exemptions 6 and 7(C), see id. § 552(b)(6), 552(b)(7)(C). See Def.'s Second 443 Mem. at 5-6. The CIA contends that such "requester-specific provisions... would be frustrated if agencies were required to recognize the assignment of FOIA requests." Id. at 6-7. Finally, the CIA contends-as a policy matter-that requiring it to recognize assignments of FOIA requests would impose an "undue burden, " and would not result in any added benefit to requesters. See id. at 8-12. In particular, the CIA contends that refusing to recognize assignments "does not prejudice parties... that claim to have been assigned FOIA claims" because "[r]equests for previously requested records are processed on an accelerated basis" and therefore "[b]y filing new requests, professional requesters can receive the records they seek at the same time they would if they were assigned the original requests." Id. at 11-12.

The plaintiff responds by focusing on the factual underpinnings of the CIA's policy arguments-in particular the CIA's contentions about "undue burden." See Pl.'s 443 Cross-Mot. Mem. at 2-7. For example, the plaintiff points out that the CIA waives FOIA fees "as an act of administrative discretion'... in the overwhelming majority of requests, " which the plaintiff says "further exemplifies the lack of any fee-related burden that assignments could possibly impose." Id. at 3-4. The plaintiff also quibbles that the CIA has "consistently classified JMP as an all other' requester, " and that the CIA's classification of JMP as a "representative of the news media" with regard to the one FOIA requests assigned to the plaintiff was an "anomaly." Id. at 4.[14] As a final example, the plaintiff argues that the CIA's policy of "piggybacking' a later request on an earlier request... has no bearing on whether recognizing assignments would impose an undue burden." Id. at 6. Indeed, the plaintiff argues that such a "piggybacking" policy "puts the lie to all of [the CIA's] arguments regarding why assignments should not be recognized, " since a piggy-backed request "free-rides" off the earlier request in the same way an assignee would arguably "free-ride" off an assigned request. See id. at 6.

At the outset, both an argument posited by the plaintiff and another argument by the CIA warrant discussion. First, the plaintiff is under the misimpression that the Court already decided the merits of the claim regarding the Assignment of Rights Policy, and in making that assumption the plaintiff mistakenly claims victory in its cross-motion for summary judgment. See Pl.'s 443 Cross-Mot. Mem. at 2 ("[T]he Court made it very clear that it was resolving [that the CIA's policy violate the FOIA] on the merits in NSC's favor."). To the contrary, the Court did not decide the merits of this claim in its prior decision. Rather, in ruling on the CIA's motion to dismiss Counts One and Two in No. 11-443, the Court simply made two holdings: (1) the plaintiff has standing to bring both claims; and (2) in both claims, the plaintiff stated claims upon which relief may be granted. See NSC I, 898 F.Supp.2d at 259. The Court made no determination at that time about whether the plaintiff was entitled to any relief, and such a determination would have been unwarranted since the plaintiff had not yet sought judgment on its claim through an appropriate motion.

Second, in support of summary judgment on the Assignment of Rights Policy, the CIA contends that "NSC's purported assignments... underscore the reasonableness of the CIA's decision not to recognize the assignment of FOIA requests." Def.'s Second 443 Mem. at 13. In this vein, the CIA attempts to argue that NSC and JMP have "dissimilar objectives" because JMP "holds itself out as a non-profit organization under the laws of the District of Columbia, '" while NSC "is a for-profit entity located in the Commonwealth of Virginia." Id. (quoting Fifth Lutz Decl. ¶ 14). By making this argument, perhaps swept up in litigation fervor, the CIA is bending the record in this case in a highly misleading way. The Court has previously discussed "the common bonds connecting JMP and NSC, " and how their identity of interests "establishes that their relationship is such that [NSC] would protect [JMP's] interests if their interests diverge.'" NSC I, 898 F.Supp.2d at 257-58 (alteration in original) (quoting Feinman v. FBI, 680 F.Supp.2d 169, 175 (D.D.C. 2010)). The Court also observed in the first sentence of the Background section of its opinion that "[t]he plaintiff in these related actions is a not-for-profit organization." Id. at 242. The CIA appears to conclude that NSC is a for-profit entity based on the fact that "its website appears to solicit paying customers." Def.'s Reply in Supp. Mot. Summ. J. on Counts One & Two ("Def.'s Second 443 Reply") at 7 n.2, No. 11-443, ECF No. 64. The mere earning of income, however, is not at all an indication that an entity is organized for profit. Even non-profit organizations must pay their bills. The government, of all entities, should know that the difference between a for-profit corporation and a non-profit organization is not whether the entity earns income (or even whether it earns income at a profit). Rather, "[i]n contrast to a for-profit corporation, a non-profit organization must utilize its earnings to finance the continued provision of the goods or services it furnishes, and may not distribute any surplus to the owners." Corp. of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 344 (1987) (Brennan, J., concurring). The CIA's shameless twisting of the factual record in this case to portray their assignment of rights position in a better light falls short of the level of representation that this Court expects of a United States government agency. The CIA should know better than to make such an obviously unfounded argument, particularly in light of the many allegations of bad faith that have been leveled by the plaintiff in these cases, including allegations that prompted a nonfrivolous motion for sanctions. See supra Part III.B; infra Parts III.F, III.H.1.

With these preliminary matters put to rest, the Court will now turn to answering the legal question raised by the CIA's Assignment of Rights Policy. To answer that question, the Court must look to the FOIA itself. The Court is mindful that the D.C. Circuit has expressly held that a policy-or-practice claim under the FOIA may only survive "[s]o long as an agency's refusal to supply information evidences a policy or practice of delayed disclosure or some other failure to abide by the terms of the FOIA, and not merely isolated mistakes by agency officials." Payne, 837 F.2d at 491 (emphasis added); accord 5 U.S.C. § 552(4)(B) (conferring to federal district courts "jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant"). Accordingly, under Payne, the Court must determine, based on the undisputed facts, whether the CIA's refusal to recognize assignments of the rights attached to FOIA requests (1) results in "delayed disclosure" of information; or (2) reflects a "failure to abide by the terms of the FOIA." See Payne, 837 F.2d at 491.

a) The Plaintiff Has Standing to Challenge the Assignment of Rights Policy.

Before addressing the merits, however, the Court must briefly address a renewed standing argument put forth by the CIA with respect to Counts One and Two in No. 11-443. The CIA argues "[b]ecause NSC could file new, duplicate FOIA requests and receive the requested records at the same time it would if the CIA recognized assignments, NSC cannot show that it is harmed by the CIA's assignment policy and, therefore, does not have standing to bring Counts One and Two." See Def.'s Second 443 Reply at 9-10. The CIA recognizes that "the Court did not accept the CIA's standing arguments at the motion to dismiss stage, " but it nevertheless "respectfully requests that the Court reexamine the issue." Id. at 10 n.3. The plaintiff's response to the CIA's renewed standing argument is that such an argument "is... staggeringly improper, " and therefore the plaintiff has elected to "not even address it." See Pl.'s Corrected Reply in Supp. Cross-Mot. Partial Summ. J. on Counts One & Two ("Pl.'s 443 Reply") at 3 n.1, No. 11-443, ECF No. 66-1. The plaintiff also vaguely states that it is aware of and "can provide several examples of cases in which" the CIA has not piggy-backed duplicate FOIA requests, which presumably would demonstrate a delayed disclosure of information. See id.

Despite the plaintiff's refusal to address the issue, and even assuming that the CIA's purported policy of piggy-backing duplicate FOIA requests eliminates any delay in the processing of duplicate FOIA requests as compared with assigned FOIA requests, the absence of delay would not deprive the plaintiff of standing to challenge the CIA's Assignment of Rights Policy. The CIA narrowly frames the plaintiff's injury as a delay in receiving information under the FOIA, see Def.'s Second 443 Reply at 9-10, but the Court has already held that the plaintiff's injury is something different in kind: the inability to exercise the statutory rights validly assigned to it by JMP, see NSC I, 898 F.Supp.2d at 259. Although the Court previously addressed this issue in the context of statutory, rather than constitutional, standing to sue in its previous opinion, see id. at 254 ("[T]he CIA's argument presents a question of statutory, rather than Article III standing."), the Court's previous analysis also establishes that a legally protected interest of the plaintiff has been harmed. See, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). The logic of this conclusion is simple: (1) the plaintiff's assignment is valid and enforceable, see NSC I, 898 F.Supp.2d at 259; (2) the CIA will not permit the plaintiff to enforce the assignment, see Def.'s Second 443 Mem. at 2; and thus (3) the CIA is harming the plaintiff's legally protected interest. There is also no question that the relevant injury- interference with the plaintiff's legally protected interest in exercising statutory rights validly assigned to it-was caused by the CIA's policy and would be redressed by a judgment invalidating that policy. See, e.g., Lujan, 504 U.S. at 560-61. Thus, the CIA's standing argument is unavailing now, just as it was unavailing in its motion to dismiss.

b) The CIA's Assignment of Rights Policy Violates the FOIA.

As to the merits, the Court concludes that the categorical Assignment of Rights Policy constitutes a "failure to abide by the terms of the FOIA." See Payne, 837 F.2d at 491. This conclusion follows ineluctably from the Court's previous holding that "the plaintiff's Assignment is valid and enforceable." See NSC I, 898 F.Supp.2d at 259. The Supreme Court has observed that "[a]ssignees of a claim... have long been permitted to bring suit." Sprint Commc'ns Co., L.P. v. APCC Servs., Inc., 554 U.S. 269, 275 (2008). Indeed, "[a] statutory right of action is generally assignable, except where it is conferred on one of a particular class, in the nature of a personal privilege, or penalty available to him or her alone." 6A C.J.S. ASSIGNMENTS § 49 (2013). "[T]he general rules concerning assignability control in determining whether [a statutory right of action] is assignable, " id. (footnote omitted), and "[t]he traditional test for assignability of a cause of action... is whether the cause of action survives the assignor and passes to his or her personal representative; if it does, the cause of action is assignable, " id. § 44; accord Accrued Fin. Servs., Inc. v. Prime Retail, Inc., 298 F.3d 291, 296 (4th Cir. 2002) ("[S]tandard principles of assignment law... recognize the legality of assigning both existing and potential choses in action, so long as the causes of action survive the death of the assignor.").[15] Since the D.C. Circuit has held that FOIA claims survive death and can be transferred to a deceased requester's legal representative, see Sinito v. U.S. Dep't of Justice, 176 F.3d 512, 517 (D.C. Cir. 1999), it stands to reason that at least some FOIA requests are properly assignable, and thus a categorical policy of refusing to recognize assignments violates the FOIA.[16]

Indeed, the CIA does not appear to contest the fact that the plaintiff has been validly assigned the rights to JMP's FOIA requests. Rather, the CIA relies on two aspects of the FOIA to justify its Assignment of Rights Policy: (1) the FOIA's silence with respect to assignments; and (2) the FOIA's "requester-specific provisions." See Def.'s Second 443 Mem. at 5-7. The FOIA's silence regarding assignments, however, supports the plaintiff's position, if it supports either position at all. "Congress is understood to legislate against a background of common-law adjudicatory principles.'" Mohamad v. Palestinian Auth., 132 S.Ct. 1702, 1709 (2012) (quoting Astoria Fed. Sav. & Loan Ass'n v. Solimino, 501 U.S. 104, 108 (1991)). It is a well-established "canon of construction that statutes should be interpreted consistently with the common law." See Samantar v. Yousuf, 130 S.Ct. 2278, 2289 (2010); accord Solimino, 501 U.S. at 108 ("[W]here a common-law principle is well established... the courts may take it as given that Congress has legislated with an expectation that the principle will apply except when a statutory purpose to the contrary is evident." (internal quotation marks omitted)). "In order to abrogate a common-law principle, [a] statute must speak directly to the question addressed by the common law.'" Manoharan v. Rajapaksa, 711 F.3d 178, 179-80 (D.C. Cir. 2013) (internal quotation marks omitted) (quoting United States v. Texas, 507 U.S. 529, 534 (1993)). Thus, absent a statement from Congress in the FOIA regarding assignments, the common-law principles regarding the recognition of assignments presumably apply, and, as discussed above, under common-law principles, "[a] statutory right of action is generally assignable." 6A C.J.S. ASSIGNMENTS § 49.[17]

The assignability of FOIA requests is also consistent with the animating principle behind the FOIA, which is "to increase the public's access to governmental information." Blazy v. Tenet, 194 F.3d 90, 97 (D.C. Cir. 1999) (emphasis in original) (quoting Greentree v. U.S. Customs Serv., 674 F.2d 74, 76 (D.C. Cir. 1982)). Indeed, it is curious that the CIA's declarant attempts to justify the Assignment of Rights Policy by contending that "accepting the assignment and substituting a motivated assignee for a passive requester... would increase [the CIA's] exposure to litigation." See Decl. of Martha M. Lutz (Jan. 30, 2013) ("Fifth Lutz Decl.") ¶ 9, No. 11-443, ECF No. 54-1. All else equal, a "motivated assignee" would actually be preferred to a "passive requester, " see id., because the former would be more likely "to increase the public's access to governmental information, " Blazy, 194 F.3d at 96, and thereby further the purpose of the FOIA. The CIA would have the Court believe that, due to the CIA's policy of "piggyback[ing]'" a subsequent duplicative request to its corresponding initial request, the non-recognition of assignments of FOIA requests will not diminish or delay the public's access to information. See, e.g., Fifth Lutz Decl. ¶ 12. Although the Court addresses this issue more fully below in discussing the CIA's "undue ...


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