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Leopold v. Department of Justice

United States District Court, District of Columbia

August 12, 2015

Jason Leopold, Plaintiff,
Department of Justice, Defendant.


AMIT P. MEHTA, District Judge.


In or around September 2011, the United States used a drone strike to kill Anwar al-Aulaqi, a U.S. citizen living in Yemen who administration officials had determined was a senior leader of al-Qaeda. The following year, Jason Leopold, an investigative reporter, filed a Freedom of Information Act (FOIA) request with the Department of Justice (DOJ) seeking documents related to the lethal use of drones against terrorist targets. Believing that DOJ had not adequately responded to his request, Plaintiff brought this action in February 2014, after which DOJ produced 96 pages of responsive material. The parties now join issue on two matters: first, the reasonableness of DOJ's search in response to Plaintiff's FOIA request; and second, the appropriateness of DOJ's invocation of the classified information and national security exemptions within FOIA to support its redactions to a DOJ "White Paper" produced to Plaintiff.

Before the court are Defendant's Motion for Summary Judgment and Plaintiff's Cross-Motion for Partial Summary Judgment. For the reasons set forth below, the court holds that DOJ did not conduct an adequate search in response to Plaintiff's FOIA request because it construed the term "Obama administration" too narrowly. In all other respects DOJ's search was reasonable. As for the redactions to the White Paper, the court concludes that the vast majority were proper under FOIA Exemption 1. Certain redacted passages of legal analysis, however, do not reference or pertain to classified information or implicate national security concerns and thus must be disclosed.

Defendant's Motion for Summary Judgment is therefore granted in part and denied in part. Plaintiff's Cross-Motion for Partial Summary Judgment also is granted in part and denied in part. Consistent with this opinion, DOJ shall conduct a new search that is reasonably calculated to uncover the documents Plaintiff seeks. In addition, it must disclose a revised redacted White Paper.


During an August 2012 Congressional hearing, at least two U.S. Congressmen publicly stated that there existed a DOJ "White Paper" addressing the legality of the government's use of drones against U.S. citizens living abroad who were suspected of terrorist activities. Thereafter, Plaintiff Leopold filed a FOIA request with DOJ seeking a copy of the White Paper, as well as related documents (the "First Request"). The First Request stated:

I am seeking copies of all white papers' and/or PowerPoints, briefing memos, and/or policy summaries and/or policy papers that Department of Justice officials provided to members of Congress, specifically but not limited to the Senate and House Judiciary Committees, or any member of the Obama administration on the use of Unmanned Aerial Vehicles (commonly referred to as "drones") for the purpose of engaging in lethal force in other countries against terrorist targets. Additionally, I seek copies of all correspondence, which includes but is not limited to memos, letters and emails, members of Congress sent to the Justice Department inquiring about the legal rationale behind the use of Unmanned Aerial Vehicles for the purposes of engaging in lethal force against terrorist targets in other countries and/or the general use of Unmanned Aerial Vehicles to hunt down terrorists. I request FOIA analysts use the following search terms: targeted killing(s)[, ]' targeted killing program, ' targeted assassination program, ' white paper, ' Senator John Cornyn, ' Senator Patrick Leahy.' The timeframe for this request would be January 2010 through the present.

Decl. of Vanessa R. Brinkmann [hereinafter "Brinkmann Decl."], Ex. A, ECF No. 13-2 at 2. The DOJ Office of Information Policy ("OIP") received the request on August 10, 2012. Brinkmann Decl., ECF No. 13-1 ¶ 3. By a letter dated August 23, 2012, OIP notified Plaintiff that it had received his request and had granted "expedited processing." Brinkmann Decl., Ex. B, ECF No. 13-2 at 5.

DOJ's response was anything but expeditious. Six months later, and before Plaintiff's receipt of any materials in response to the First Request, a 16-page, single-spaced DOJ memorandum entitled "Lawfulness of a Lethal Operation Directed Against a U.S. Citizen Who Is a Senior Operational Leader of Al-Qa'ida or An Associated Force" [hereinafter "Leaked Drone Memorandum"] was leaked to NBC News.[1] In response, on February 6, 2013, Plaintiff submitted a second FOIA request (the "Second Request"), in which he asked for the administrative record of DOJ's processing of the First Request. Two days later, OIP presented Plaintiff with a version of the Leaked Drone Memorandum, which differed from NBC's copy only in that it was marked "Draft November 8, 2011." Brinkmann Decl. ¶ 16; id., Ex. C, ECF No. 13-2 at 8-9. This "interim response" also advised Plaintiff that OIP's search for records responsive to the First Request was ongoing. Brinkmann Decl. ¶ 16.

On February 4, 2014, a year after receiving the Leaked Drone Memorandum and having received no other records from DOJ, Plaintiff filed the complaint in this case. ECF No. 1. Several months later, DOJ began to produce additional documents to Plaintiff. See Status Report and Proposed Schedule, ECF No. 8. First, on May 21, 2014, OIP produced 46 pages of unredacted documents, consisting almost entirely of correspondence between DOJ and Members of Congress. Brinkmann Decl., Ex. D, ECF No. 13-2 at 26-73. Then, on August 22, 2014, OIP produced 12 pages, similarly consisting of emails and correspondence between DOJ staff and Members of Congress or their staffs, which contained only a single redaction pursuant to FOIA Exemption 6. Brinkmann Decl., Ex. E, ECF No. 13-3 at 2-15; see also 5 U.S.C. § 552(b)(6) (exempting "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy"). Finally, on September 5, 2014, OIP produced a 22-page "White Paper, " dated May 25, 2011 and titled "Legality of a Lethal Operation by the Central Intelligence Agency Against a U.S. Citizen [REDACTED]." Brinkmann Decl., Ex. F, ECF No. 13-3 at 19. This White Paper contained significant redactions under FOIA Exemptions 1 and 3. See id.; see also 5 U.S.C. § 552(b)(1), (b)(3) (exempting material that is subject to secrecy by executive order and by statute, respectively).

The White Paper produced on September 5, 2014, was "prepared by DOJ for Congress [and] discusse[d] the legal basis upon which the CIA could use lethal force in Yemen against a U.S. citizen. Although this paper d[id] not mention the U.S. citizen by name - the target of the contemplated operation was Anwar al-Aulaqi." Decl. of Martha Lutz, ECF No. 13-4 ¶ 17 [hereinafter "Lutz Decl."]. The White Paper was prepared before the U.S. government carried out the 2011 operation in which al-Aulaqi was killed. Pl.'s Mem. In Opp'n to Def.'s Mot. For Summ. J., Ex. 1, ECF No. 16-1 at 2-4 (May 22, 2013 letter from Attorney General Holder to Senator Patrick Leahy); Islamist Cleric Anwar al-Awlaki Killed in Yemen, BBC News (Sept. 30, 2011), (last visited Aug. 6, 2015). It also provided a more fulsome analysis of the Yemen operation than was contained in the Leaked Drone Memorandum released in 2013.

DOJ's three additional productions did not end this dispute, however. Disagreements remain over the reasonableness of DOJ's search and the appropriateness of its redactions to the White Paper. Those two issues are now before the court. Defendant seeks summary judgment, while Plaintiff cross-moves for partial summary judgment.


The Freedom of Information Act embodies a profound and powerful commitment to the ideals enshrined in our Constitution. "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). Thus the law requires that "each agency, upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules... shall make the records promptly available to any person, " 5 U.S.C. § 552(a)(3)(A), unless the records fall within one of nine narrowly construed exemptions, see 5 U.S.C. § 552(b); Vaughn v. Rosen, 484 F.2d 820, 823 (D.C. Cir. 1973). Federal courts have the authority to order agencies to produce any records improperly withheld. 5 U.S.C. § 552(a)(4)(B). "Unlike the review of other agency action that must be upheld if supported by substantial evidence and not arbitrary or capricious, the FOIA expressly places the burden on the agency to sustain its action' and directs the district courts to determine the matter de novo.'" DOJ v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 755 (1989) (quoting 5 U.S.C. § 552(a)(4)(B)). "At all times courts must bear in mind that FOIA mandates a strong presumption in favor of disclosure.'" Nat'l Ass'n of Home Builders v. Norton, 309 F.3d 26, 32 (D.C. Cir. 2002) (quoting U.S. Dep't of State v. Ray, 502 U.S. 164, 173 (1991)).

Most FOIA cases are appropriately resolved on motions for summary judgment. Brayton v. Off. of the U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011). Summary judgment is warranted under Federal Rule of Civil Procedure 56 "if the movant shows that 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). A dispute is "genuine" only if a reasonable fact-finder could find for the nonmoving party, while a fact is "material" only if it is capable of affecting the outcome of litigation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A non-material factual dispute is insufficient to prevent the court from granting summary judgment. Id. The moving party must support the assertion that no facts are in dispute by "citing to particular parts of materials in the record, including... affidavits or declarations." Fed.R.Civ.P. 56(c)(1)(A). In making its determination as to summary judgment, the court must review "[a]ll underlying facts and inferences... in the light most favorable to the non-moving party." N.S. ex rel. Stein v. District of Columbia, 709 F.Supp.2d 57, 65 (D.D.C. 2010) (citing Anderson, 477 U.S. at 255).

An agency seeking summary judgment in a FOIA case bears the burden of showing that, even with the facts viewed in the light most favorable to the requester, the agency has conducted a search "reasonably calculated to uncover all relevant documents." Weisberg v. DOJ, 705 F.2d 1344, 1351 (D.C. Cir. 1983). To carry its burden, the agency may submit a "reasonably detailed affidavit, setting forth the search terms and the type of search performed, and averring that all files likely to contain responsive materials (if such records exist) were searched." Oglesby v. U.S. Dep't of Army, 920 F.2d 57, 68 (D.C. Cir. 1990). Production of such an affidavit allows a requester to challenge, and a court to assess, the adequacy of the search performed by the agency. Id. These affidavits are afforded "a presumption of good faith, which cannot be rebutted by purely speculative claims." SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (internal quotation marks omitted). Summary judgment based on affidavits is not warranted, however, if the affidavits are "controverted by either contrary evidence in the record [or] by evidence of agency bad faith." Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981) (citations omitted); see also Hall v. CIA, 668 F.Supp.2d 172, 196 (D.D.C. 2009) ("Courts may permit discovery in FOIA cases where a plaintiff has made a sufficient showing that the agency acted in bad faith.") (internal quotation marks omitted).

A. Adequacy of the Search

The parties first contest the adequacy of DOJ's search for responsive records. DOJ asserts that it conducted an adequate search reasonably designed to produce responsive documents. Plaintiff disagrees, raising a host of objections.

Before addressing the parties' specific arguments, the court first discusses the steps DOJ took to identify relevant documents. To demonstrate the reasonableness of its search, DOJ submitted a declaration from Vanessa Brinkmann, Senior Counsel at OIP. See Brinkmann Decl. As the Brinkmann Declaration explains, because Plaintiff's request sought materials shared with the Obama administration, and because it involved "communications with Congress concerning a high-level matter, " OIP conducted searches in three DOJ leadership offices: (1) the Office of the Attorney General (OAG); (2) the Office of the Deputy Attorney General (ODAG); and (3) the Office of Legislative Affairs (OLA). Id. ¶ 4. OIP believed that the records sought by Plaintiff were most likely to be found in these offices. Id.

1. OIP's Search as Discussed in the Brinkmann Declaration

a. Electronic Records Search of OAG and ODAG

To identify responsive materials held by DOJ's two main leadership offices-OAG and ODAG-OIP searched the Executive Secretariat's Intranet Quorum (IQ) database. Id. ¶ 6. The IQ database is the "the official records repository of OAG and ODAG, and in particular, of records of all formal, controlled correspondence sent to or from OAG and ODAG, " including "official correspondence sent to or from OLA and Congress." Id. OIP conducted keyword searches of the database using the following search terms provided by Plaintiff: "targeted killing(s)"; "targeted killing program"; "targeted assassination program"; "white paper"; "Senator John Cornyn"; ...

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