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Leopold v. Central Intelligence Agency

United States District Court, District of Columbia

April 8, 2016

JASON LEOPOLD, et al., Plaintiffs,



Like a multigenerational soap opera, the persistent controversy swirling around the Central Intelligence Agency’s rendition, detention, and interrogation program has now spanned two presidential administrations, numerous congressional sessions, and the comings and goings of six CIA directors. In one of its most recent episodes, the CIA, after finding itself in the binocular crosshairs of the Senate Select Committee on Intelligence, allegedly flipped the lenses around to spy back on its Congressional overseers. When word spread that CIA officials had purportedly hacked into SSCI’s computers - computers the CIA had lent SSCI at a secure CIA facility - interested ears perked up. Journalist Jason Leopold and academic Ryan Shapiro filed a Freedom of Information Act request in the hope of getting the scoop on this latest installment. After waiting two months without receiving a substantive response from the agency, Plaintiffs filed this suit to compel one. Once the matter was in litigation, the CIA released some documents to Plaintiffs and filed a Motion for Summary Judgment, arguing that it had fulfilled its obligations under FOIA. Plaintiffs oppose, arguing only that the CIA’s search was inadequate. The Court sides with the agency, concluding that it has satisfactorily performed what the statute demands.

I. Background

This dispute, like most FOIA cases, begins with a request for documents. On April 12, 2014, Plaintiffs Leopold and Shapiro sent a FOIA request to the CIA listing five distinct categories of information. See Compl., ¶¶ 1-2, 16. Their central focus was a congressional inquiry into the CIA’s alleged torture program conducted by the Senate Select Committee on Intelligence. See id., ¶ 16. According to Plaintiffs, as part of that inquiry, the “CIA and SSCI reached an agreement which would permit SSCI staffers to review CIA documents at a secure CIA facility in Virginia. A written agreement or series of agreements specified the parameters regarding the staffers’ access to CIA documents.” MSJ, Attach. 1 (Declaration of Mary E. Wilson), Exh. B (FOIA Request) at 2. After getting the logistics nailed down, a disagreement arose between SSCI and the CIA. The agency believed that SSCI staffers had illegally removed internal CIA documents from the secure facility - most specifically, a document or series of documents referred to as the “Panetta Review.” Id. SSCI, for its part, believed that the CIA had accessed, without authorization, the computers its staffers had been provided. See id.

To shed more light on this situation, Plaintiffs requested five broad categories of records, consisting essentially of: (1) “written agreements and correspondence” between SSCI and the CIA regarding the former’s access to CIA facilities and documents; (2) “records documenting any CIA investigation into the search of SSCI’s computers at the secure facility in Virginia, ” including any referrals or other communications between the CIA and the Justice Department; (3) records related to CIA and DOJ investigations into SSCI’s alleged removal of the “Panetta Review”; (4) material pertaining to a CIA contract that had purportedly been awarded to a company to “review[] records relating to the CIA’s former Detention and Interrogation Program”; and (5) “talking points, ” in both draft and final form, touching on this dispute between the CIA and SSCI. See Compl., ¶ 16.

Having received no substantive response after two months had passed, in June 2014, Plaintiffs filed suit, asking this Court to “[o]rder Defendant to process the requested records without further delay and release all nonexempt portions” of those records. See Compl. at 6. Over the ensuing year, Defendant completed the search and began determining whether the documents it had turned up were responsive to Plaintiffs’ request. See Minute Order of Jan. 7, 2015; ECF Nos. 13 (CIA Status Report of 2/24/15), 14 (CIA Status Report of 4/9/15), 15 (CIA Status Report of 5/26/15). On July 20, 2015, it produced 82 documents (12 released in full, 70 in part) and prepared a preliminary Vaughn Index indicating which FOIA exemptions it had relied on in withholding in full the remaining 231 responsive documents. See ECF No. 17 (CIA Status Report of 7/16/15); Minute Order of Aug. 19, 2015; Wilson Decl., ¶ 7. The CIA then filed its Motion for Summary Judgment, arguing that it had met all of its obligations under FOIA. Plaintiffs limited their Opposition to contesting only the adequacy of the agency’s search efforts. In addressing the CIA’s Motion, therefore, the Court will focus exclusively on that narrow issue.

II. Legal Standard

Summary judgment may be granted 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); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). A fact is “material” if it is capable of affecting the substantive outcome of the litigation. See Liberty Lobby, 477 U.S. at 248; Holcomb, 433 F.3d at 895. A dispute is “genuine” if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Scott v. Harris, 550 U.S. 372, 380 (2007); Liberty Lobby, 477 U.S. at 248; Holcomb, 433 F.3d at 895. “A party asserting that a fact cannot be or is genuinely disputed must support the assertion” by “citing to particular parts of materials in the record” or “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1). The moving party bears the burden of demonstrating the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

FOIA cases typically and appropriately are decided on motions for summary judgment. See Brayton v. Office of U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011). In a FOIA case, a court may grant summary judgment based solely on information provided in an agency’s affidavits or declarations when they “describe the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.” Larson v. Dep’t of State, 565 F.3d 857, 862 (D.C. Cir. 2009) (citation omitted). Such affidavits or declarations “are accorded a presumption of good faith, which cannot be rebutted by purely speculative claims about the existence and discoverability of other documents.” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (internal quotation marks omitted). “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.’” Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 755 (1989) (quoting 5 U.S.C. § 552(a)(4)(B)).

III. Analysis

Congress enacted FOIA “to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny.” Dep’t of Air Force v. Rose, 425 U.S. 352, 361 (1976) (citation 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.” John Doe Agency v. John Doe Corp., 493 U.S. 146, 152 (1989) (citation omitted). The statute provides 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). Consistent with this statutory mandate, federal courts have jurisdiction to order the production of records that an agency improperly withholds. See 5 U.S.C. § 552(a)(4)(B); Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 755 (1989).

“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.’” Reporters Comm., 489 U.S. at 755 (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 Dep’t of State v. Ray, 502 U.S. 164, 173 (1991)).

Although the CIA’s Motion justifies both the adequacy of its search and the exemptions it relied on in withholding various documents, Plaintiffs dispute only the former point. The Court first discusses the legal standard governing the adequacy of searches and articulates the agency’s justification for the conduct of its search. It thereafter examines in sequence Plaintiffs’ objections to the thoroughness of the search.

A. Standard and Explanation of Search

“An agency fulfills its obligations under FOIA if it can demonstrate beyond material doubt that its search was ‘reasonably calculated to uncover all relevant documents.’” Valencia-Lucena v. Coast Guard, 180 F.3d 321, 325 (D.C. Cir. 1999) (quoting Truitt v. Dep’t of State, 897 F.2d 540, 542 (D.C. Cir. 1990)); see also Steinberg v. Dep’t of Justice, 23 F.3d 548, 551 (D.C. Cir. 1994). “[T]he issue to be resolved is not whether there might exist any other documents possibly responsive to the request, but rather whether the search for those documents was adequate.” Weisberg v. Dep’t of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984).

The adequacy of an agency’s search for documents requested under FOIA “is judged by a standard of reasonableness and depends, not surprisingly, upon the facts of each case.” Id. To meet its burden, the agency may submit affidavits or declarations that explain the scope and method of its search “in reasonable detail.” Perry v. Block, 684 F.2d 121, 127 (D.C. Cir. 1982). The affidavits or declarations should “set[] forth the search terms and the type of search performed, and aver[] that all files likely to contain responsive materials (if such records exist) were searched.” Oglesby v. Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir. 1990). Without contrary evidence, such affidavits or declarations are sufficient to show that an agency complied with FOIA. See id. On the other hand, if the record “leaves substantial doubt as to the sufficiency of the search, summary judgment for the agency is not proper.” Truitt, 897 F.2d at 542.

In this case, Defendant attached to its Motion a declaration from Mary E. Wilson, who, as of November 2015, served as the CIA’s acting “Information Review Officer.” Wilson Decl., ¶ 1. In it, she described the approach that the agency took in preparing and carrying out its search for material responsive to Plaintiffs’ five-part request. The first step consisted of “consult[ing] with Agency officials knowledgeable about th[e] [sought-after] subject matter to ascertain the universe of responsive records and to identify the specific offices and individuals who would possess [them].” Id., ¶ 9.

Based on those consultations, the agency turned its attention to specific offices where “it [was] reasonably likely that responsive records would reside.” Id., ¶ 10. For four of the five categories of documents - excluding those pertaining to the CIA contract - the agency determined that eight specific offices “would be the locations that would maintain” responsive records. See id., ¶ 9. The offices included the Office of the Director (which also includes the Offices of the Deputy Director and Executive Director), the Office of Public Affairs, the Office of Congressional Affairs, the Office of General Counsel, the Office of the Inspector General, and the Office of Security. Id. For the contract-related material, the CIA concluded that a search of the “office involved with procuring the contract” would contain such documents. Id. The agency included both paper and electronic records in carrying out its search. Id., ¶ 10.

In addition to the office-specific searches, “CIA personnel conducted searches of records maintained by certain individuals who were identified as possibly possessing responsive documents.” Id., ¶ 9. The individual-records search likewise covered both paper and electronic material. Id., ¶ 10.

The agency relied on a set of non-exclusive search terms “calculated to locate [responsive] documents.” Id. The terms included: SSCI review, SSCI staff, unauthorized search, unauthorized access, RDINet, Firewall, Panetta review, and WCR. See id. (To assist the reader, “RDINet” refers to the Rendition and Interrogation Network, which “was the system used by SSCI staffers when conducting their review, ” id. n.5; “WCR” is the “internal Agency reference for the draft documents that the plaintiffs call the ‘Panetta review.’” Id. n.6) In addition, because the events forming the basis for Plaintiffs’ request had only recently occurred, CIA officers charged with executing the search “also relied on the assistance of knowledgeable officials to locate collections of potentially responsive records held by offices and individuals.” Id.

In sum, the CIA asserts that its personnel conducted a reasonable search for responsive records, examining the files likely to contain responsive material. See MSJ at 8. Plaintiffs disagree, however, identifying a series of discrete flaws they believe render Defendant’s search ...

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