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Freedom Watch, Inc. v. National Security Agency

United States District Court, District of Columbia

July 7, 2016

FREEDOM WATCH, INC., Plaintiff,
v.
NATIONAL SECURITY AGENCY, et al., Defendants.

          MEMORANDUM OPINION [Dkt. # 32]

          RICHARD J. LEON UNITED STATES DISTRICT JUDGE

         Plaintiff 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.

         BACKGROUND

         On July 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].[1] 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.

         In Ms. 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.

         As 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.

         STANDARD OF REVIEW

         FOIA 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).

         ANALYSIS

          I.CIA's and DoD's Searches for Responsive Records Were Adequate.

         I begin 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 were appropriate.

         Defendants 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. ¶ 8.

         Plaintiff 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).

         Plaintiffs only argument regarding the search methods employed—that 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 ...


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