United States District Court, D. Columbia.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
JASON LEOPOLD, Plaintiff: Jeffrey Louis Light, LEAD ATTORNEY,
LAW OFFICES OF JEFFREY LIGHT, Washington, DC.
DEPARTMENT OF JUSTICE, Defendant: Amy E. Powell, LEAD
ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Washington, DC; Stephen
McCoy Elliott, U.S. DEPARTMENT OF JUSTICE, Civil
Division/Off. of Immig. Litigation, Ben Franklin Station,
OPINION AND ORDER
Mehta, United States District Judge.
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.
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.
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.
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
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.
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. 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.
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).
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,
(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.
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.
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, 98 S.Ct. 2311, 57 L.Ed.2d
159 (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, 157 U.S. App.D.C. 340 (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, 109 S.Ct. 1468,
103 L.Ed.2d 774 (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, 353 U.S. App.D.C.
374 (D.C. Cir. 2002) (quoting U.S. Dep't of State v.
Ray, 502 U.S. 164, 173, 112 S.Ct. 541, 116 L.Ed.2d 526
FOIA cases are appropriately resolved on motions for summary
judgment. Brayton v. Off. of the U.S. Trade Rep.,
641 F.3d 521, 527, 395 U.S. App.D.C. 155 (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, 106 S.Ct. 2505, 91
L.Ed.2d 202 (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).
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, 227 U.S. App.D.C. 253 (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, 287 U.S. App.D.C. 126 (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, 288 U.S.
App.D.C. 324 (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, 211 U.S. App.D.C. 135 (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).
Adequacy of the Search
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.
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.
OIP's Search as Discussed in the ...