United States District Court, District of Columbia
MEMORANDUM OPINION [Dkt. # 32]
RICHARD J. LEON UNITED STATES DISTRICT JUDGE
Freedom Watch, Inc. brought this action under the Freedom of
Information Act ("FOIA"), see 5 U.S.C.
§ 552, seeking information related to the August 6, 2011
shoot-down of a military helicopter in Afghanistan. Currently
before the Court is defendants' Motion for Summary
Judgment. See Defs.' Mot. for Summ. J. [Dkt. #
32]. Having considered the parties' pleadings, relevant
law, and the entire record of this case, the Court GRANTS
defendants' Motion for Summary Judgment.
21, 2014, plaintiff Freedom Watch sent a multi-part FOIA
request to the defendants, Central Intelligence Agency
("CIA") and Department of Defense
("DoD"). Wilson Decl. ("CIA Decl.")
¶ 5 [Dkt. # 32-1]; Herrington Deck ("DoD
Deck") ¶ 3 [Dkt. # 32-2]. The FOIA request sought the
production of agency records relating to an August 2011 CH-47
Chinook helicopter crash in Afghanistan that resulted in the
deaths of 38 individuals. On August 21, 2014, Freedom Watch
filed this lawsuit against the defendants seeking to compel
disclosure of the requested records. See generally
Compl. [Dkt. #1]. Since then, CIA and DoD have conducted
searches for responsive records and filed a series of status
reports apprising the plaintiff and the Court of the
production. See, e.g., Status Report, May 8, 2015
("First Status Report") [Dkt. # 25]; Status Report,
Nov. 11, 2015 ("Second Status Report") [Dkt. #31].
On May 8, 2015 defendants reported they had located several
dozen responsive documents to be
reviewedrsee-First Status-Report, and on November
11, 2015 defendants reported completion of the production of
responsive, non-exempt materials, see Second Status
Report. CIA and DoD detailed their search for responsive
records and exemptions claimed in two respective
declarations: one from Mary E. Wilson, Acting Information
Review Officer for the Litigation Information Review Office
at the CIA, see CIA Decl., and the other from Mark
Herrington, Associate Deputy General Counsel in the Office of
General Counsel of DoD, see DoD Decl.
Wilson's declaration she avers that CIA conducted a
search for responsive records in consultation with Agency
officials knowledgeable about the Agency's recordkeeping
practices to ascertain all locations reasonably likely to
possess responsive records. CIA Decl. ¶ 9. By letter
dated August 21, 2014, CIA advised the plaintiff that the
information sought "would fall under the auspices of the
Department of Defense." Id. ¶ 6. On May
12, 2015, CIA produced two redacted responsive documents.
Id. ¶ 7. On January 12, 2016, after re-review
and reprocessing, CIA released a revised version of one of
these documents, numbered C06299693. Id. ¶ 8.
explained in Mr. Herrington's declaration, DoD reviewed
the various parts of plaintiffs FOIA request to identify the
offices likely to have responsive materials. See DoD
Decl. ¶¶ 6-9. Working with FOIA staff well-versed
in the structure and responsibilities of offices, DoD
searched the office of Legislative Affairs, id.
¶ 7, and the office of the Assistant Secretary of
Defense for Special Operations & Low Intensity Conflict,
id. ¶ 8, and tasked the Enterprise IT Services
Directorate and the Defense Information Systems Agency to
conduct further electronic searches of the records of Garry
Reid, Principal Deputy Assistant Secretary of Defense for
Special Operations & Low Intensity Conflict, id.
¶ 9. On March 31, 2015, DoD released in full two
documents, totaling 2 pages, of responsive, non-exempt
information. Id.¶ 10. On November 15,
2015, DoD released an additional 98 responsive documents,
totaling 531 pages, with exempt information redacted on the
released pages. Id. ¶11.
cases are typically resolved on motions for summary judgment.
See Petit-Frere v. U.S. Atty's Office for the S Dist.
of Flor., 800 F.Supp.2d 276, 279 (D.D.C. 2011)
(citations omitted), aff'd per curiam, No.
11-5285, 2012 WL 4774807, at *1 (D.C. Cir. Sept. 19, 2012). A
court will grant summary judgment "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)., In the FOIA context, agencies may meet
their burden solely on the basis of affidavits or
declarations, see Valencia-Lucena v. U.S. Coast
Guard, 180 F.3d 321, 326 (D.C. Cir. 1999), as long as
they "describe the documents and 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 [or] by evidence of agency
bad faith, " Military Audit Project v. Casey,
656 F.2d 724, 738 (D.C. Cir. 1981) (footnote omitted).
"To successfully challenge an agency's showing that
it complied with the FOIA, the plaintiff must come forward
with specific facts demonstrating that there is a genuine
issue with respect to whether the agency has improperly
withheld ... agency records." Span v. Dep't of
Justice, 696 F.Supp.2d 113, 119 (D.D.C. 2010) (internal
quotation marks omitted).
I.CIA's and DoD's Searches for Responsive
Records Were Adequate.
by addressing the adequacy of CIA's and DoD's
searches for records responsive to plaintiffs FOIA requests.
"It is elementary that an agency responding to a FOIA
request must conduct a search reasonably calculated to
uncover all relevant documents, and, if challenged, must
demonstrate beyond material doubt that the search was
reasonable." Truitt v. Dep't of State, 897
F.2d 540, 542 (D.C. Cir. 1990) (footnotes, brackets, and
internal quotation marks omitted). Unfortunately for
plaintiff, I conclude that CIA's and DoD's searches
have demonstrated that they met their burden through the
"relatively detailed and non-conclusory" affidavits
of agency officials. See Mobley v. CIA, 806 F.3d
568, 580-81 (D.C. Cir. 2015). Mary E. Wilson, the Acting
Information Review Officer for CIA's Litigation
Information Review Office, explained that the CIA
"consulted Agency officials with knowledge of the
Agency's record-keeping practices to ascertain all
locations reasonably likely to possess responsive records,
" searched numerous locations for both paper and
electronic files, and found the documents ultimately produced
to plaintiff. See CIA Decl. ¶¶ 9-13. Mark
Herrington, the Associate Deputy General Counsel in DoD's
Office of General Counsel responsible for overseeing FOIA
litigation, described in detail how DoD identified the
offices likely to have responsive records, the means used to
search therein, and how they searched for both electronic and
paper records. See DoD Decl. ¶¶ 6-9. He
also explained how DoD searched the records of the office and
individual at the center of plaintiff s FOIA requests: the
Office of the Assistant Secretary of Defense for Special
Operations & Low Intensity Conflict, and Garry Reid,
Principal Deputy Assistant Secretary of Defense for Special
Operations & Low Intensity Conflict. Id. Ms.
Wilson and Mr. Herrington described how the searches located
hundreds of pages of responsive records, contained within
over 100 documents, ultimately produced in full or in part
absent information withheld as exempt under FOIA.
See DoD Decl. ¶¶ 10-11; CIA Decl. ¶
wholly fails to present any evidence rebutting the
agency's showing of a good faith search. Rather than
provide any facts that create a genuine issue regarding the
adequacy of the search, plaintiff asserts without support
that it is "common sense that documents clearly
exist" beyond those produced. Pl.'s Opp'n to
Defs.' Mot. for Summ. J. ("Pl.'s
Opp'n") 20 [Dkt. # 35]. It is well established,
however, that "the adequacy of a FOIA search is
generally determined not by the fruits of the search, but by
the appropriateness of the methods used to carry out the
search." Iturralde v. Comptroller of the
Currency, 315 F.3d 311, 315 (D.C. Cir. 2003). Moreover,
an "agency's failure to turn up a particular
document, or mere speculation that as yet uncovered documents
might exist, does not undermine the determination that the
agency conducted an adequate search for the requested
records." Wilbur v. CIA, 355 F.3d 675, 678
(D.C. Cir. 2004) (per curiam).
only argument regarding the search methods employedâthat
defendants should not have relied on "keyword searches,
" Pl.'s Opp'n 22-is unsupported and
unpersuasive. In another recent case involving this
plaintiff, the D.C. Circuit explained, "FOIA expressly
permit[s] automated searches, see 5 U.S.C. §
552(a)(3)(D) (explaining that 'search' means to
review, manually or by automated means)[.]" Freedom
Watch v. Nat'l Sec. Agency,783 F.3d 1340, 1345
(D.C. Cir. 2015). Indeed, agencies routinely rely upon
keyword searches to locate responsive electronic documents.
See, e.g., Mobley, 806 F.3d at 581; Oglesby v.
Dep't of Army,920 F.2d 57, 68 (D.C. Cir. 1990).
Moreover, the searches here encompassed far more than
inputting keywords. Far from "avoid[ing] interacting
with human beings, " Pl.'s Opp'n 22, defendants
spoke with individuals familiar with the offices' records
systems, and searched paper records as well. See CIA
Decl. ¶¶ 9-12; DoD Decl. ¶¶ 6, 8. In the