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McClanahan v. U.S. Department of Justice

United States District Court, District of Columbia

September 1, 2016

KELLY MCCLANAHAN, et al., Plaintiffs,



         The plaintiffs, Kelly McClanahan and Cori Crider, brought this lawsuit asserting five claims under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, and the Privacy Act (“PA”), 5 U.S.C. § 552a, against the Department of Justice (“DOJ”), regarding the manner and sufficiency with which DOJ and its components responded to six of the plaintiffs' requests for records. See Compl. ¶¶ 88-124, ECF No. 1. In response to DOJ's first motion for summary judgment, the plaintiffs voluntary dismissed three claims, see Mem. and Order at 1, ECF No. 22, leaving two claims for which DOJ has now renewed its motion for summary judgment, see Def.'s Renewed Mot. Summ. J. (“Def.'s Mot.”), ECF No. 25. For the reasons set out below, DOJ's renewed motion for summary judgment is granted.

         I. BACKGROUND

         The three FOIA requests at issue in the plaintiffs' two remaining claims sought records from the Federal Bureau of Investigation (“FBI”) and arise from the plaintiffs' involvement in two other FOIA cases before this Court. The pertinent facts regarding those two cases are briefly summarized before turning to the events leading to the current lawsuit and the procedural history.

         A. First FOIA Litigation

         In February 2011, Mr. McClanahan, on behalf of his law firm, National Security Counselors (“NSC”), filed a lawsuit against the Central Intelligence Agency (“CIA”), challenging that agency's response to his FOIA request for “copies of all Tables of Contents (“TOCs”) for the in-house journal Studies in Intelligence (“Studies”).” Compl. ¶¶ 7, 9 (citing NSC v. CIA, Civil No. 11-443 (BAH) (the “NSC FOIA case”)). Subsequently, in December 2011, “the CIA released redacted copies of the TOCs to NSC, ” which promptly posted the redacted TOCs online on the NSC's website. Id. ¶ 10. Soon after this posting, Mr. McClanahan was contacted by a third party, who eventually sent him cumulative indices of articles from Studies. Id. ¶¶ 11-12. Correctly suspecting that the indices contained classified information, which the “CIA had redacted from the TOCs, ” id. ¶ 13, Mr. McClanahan sought guidance from a DOJ attorney, who alerted the CIA, id. ¶¶ 15-16. Thereafter, in January and June 2012, the FBI interviewed Mr. McClanahan twice in the FBI's Washington Field Office regarding his possession of the classified indices. Id. ¶¶ 17-18, 25.

         B. Second FOIA Litigation

         In May 2011, Mr. McClanahan was hired by Ms. Crider, a human rights attorney based in the United Kingdom, to litigate a FOIA case for records related to an American citizen, Sharif Mobley, who was detained in Yemen for murder. Id. ¶¶ 4, 44-45, 50-51 (citing Mobley v. Dep't of Def., Civil No. 11-2073 (BAH) (the “Mobley FOIA case”)). While litigating the parallel murder case in Yemen, Ms. Crider received an unredacted copy of an FBI interview report, dated April 7, 2010, summarizing the FBI interview of Mobley. Id. ¶¶ 53, 55. Realizing that this report possibly contained classified information, Ms. Crider forwarded the document to Mr. McClanahan “to use as evidence in the FOIA/PA case” in this Court. Id. ¶ 56. In June 2012, the FBI met with Mr. McClanahan regarding the unredacted interview report as well as the classified indices of articles from Studies. Id. ¶ 58.

         C. The Plaintiffs' FOIA Requests at Issue

         Despite conceding the absence of any direct evidence in support of their theory, id. ¶ 86, the plaintiffs “believe that the FBI may have quietly obtained their privileged email traffic and possibly even issued gag orders to their respective ISPs to cover its tracks, ” id. In order to “either prove or assuage their concerns, ” id. ¶ 87, the plaintiffs submitted FOIA requests to the FBI and DOJ's Justice Management Division (“JMD”), [1] id. The three FOIA requests remaining at issue in this case were submitted in November 2012 and February and October 2013 to the FBI. Specifically, Mr. McClanahan submitted a FOIA/PA request to the FBI on November 16, 2012 (“2012 McClanahan Request”), seeking “[a]ny and all records . . . pertaining to me, National Security Counselors, any case numbers assigned to the above investigations, or any of the classified information I possessed.” Id. ¶ 89; Def.'s St. of Mat. Facts as to Which There Is No Genuine Dispute (“Def.'s SMF”) ¶ 1, ECF No. 25-2.[2] The FBI denied the request because the requested materials were “located in an investigative file which is exempt from disclosure pursuant to 5 U.S.C. § 552(b)(7)(A).” Compl. ¶ 91; Def.'s SMF ¶ 2. The administrative appeal from this denial was affirmed on April 23, 2013. Compl. ¶ 93; Def.'s SMF ¶¶ 3-4.

         The second FOIA request at issue was filed by Mr. McClanahan with the FBI on October 10, 2013 (“2013 McClanahan Request”), for the same information requested in the 2012 McClanahan Request as well as any responsive documents created in the past year. Compl. ¶ 94.

         This request was likewise denied because the responsive files were located in an investigative file exempt under Exemption 7(A). Id. ¶ 96. Mr. McClanahan again appealed this denial decision. Id. ¶ 97.

         Finally, Ms. Crider submitted a FOIA/PA request with the FBI on February 25, 2013 (“Crider Request”), seeking “[a]ny and all records . . . pertaining to Ms. Crider.” Id. ¶ 102. Ms. Crider received no response from the FBI other than that her request had been received and assigned a request number. Id. ¶¶ 103-04.

         D. Procedural History

         The plaintiffs then filed the instant complaint on March 21, 2014. See generally Compl. On October 6, 2014, having determined that the basis for the Exemption 7(A) response had expired, the FBI reversed its denial of the 2012 McClanahan Request and the Crider Request. Def.'s SMF ¶¶ 5, 14; Def's First Mot, Ex. 1 (“First Hardy Decl.”) ¶ 20, ECF No. 12-1. By November 7, 2014, the FBI had completed the search for responsive documents to both these requests. Def's SMF ¶¶ 7-16. For the 2012 McClanahan Request, the FBI processed a total of 339 pages, of which 225 pages were withheld as duplicates, 76 pages were released in full, 14 pages were withheld in part, and 24 pages were withheld in full. Id. ¶ 7. For the Crider Request, the FBI processed a total of 281 pages, of which 153 pages were released in full, 101 pages were withheld in part, and 27 pages were withheld in full. Id. ¶ 16.

         DO J moved for summary judgment on all five counts of the plaintiffs' Complaint on the grounds that adequate searches had been conducted in response to the plaintiffs' requests, except for the 2013 McClanahan Request, and all reasonably segregable non-exempt information had been released. See generally Def's Mot. Summ. J. (“Def's First Mot”), ECF No. 12. With respect to the 2013 McClanahan Request, DOJ contended that Mr. McClanahan had failed to exhaust his administrative remedies. Def.'s Mem. Supp. Def.'s First Mot. at 29-31, ECF No. 12. The plaintiffs conceded that DOJ had “‘provided sufficient information . . . to satisfy Plaintiffs that their FOIA/PA requests had been properly processed' as to three of the six requests at issue” in Counts Three, Four, and Five of the Complaint, Mem. and Order at 1 (quoting Pls.' Opp'n to Def.'s First Mot. at 1 n.1, ECF No. 16), but continued to challenge the sufficiency of the agency's response to three FOIA requests-the 2012 and 2013 McClanahan Requests and the Crider Request-referenced in Counts One and Two of the Complaint, id. at 2.

         Specifically, the plaintiffs argue that Mr. McClanahan exhausted his administrative remedies as to the 2013 McClanahan Request when “he sent his appeal in an email to an address maintained by the defendant specifically for the receipt of appeals to the denial of FOIA requests.” Id. at 3. That email address, however, was deactivated on January 17, 2013, less than a month before Mr. McClanahan emailed his appeal. Id. Noting that the “purpose of the FOIA's administrative exhaustion requirement is to give ‘the agency [] an opportunity to exercise its discretion and expertise on the matter and [] make a factual record to support its decision, '” id. at 5 (quoting Wilbur v. CIA, 355 F.3d 675, 677 (D.C. Cir. 2004) (alterations in original) (internal quotation marks omitted)), and that administrative exhaustion is not a jurisdictional prerequisite but a “prudential consideration, ” id., the Court remanded Mr. McClanahan's appeal of the FBI's denial of his 2013 Request back to DOJ, id. at 5-6. The Court granted DOJ's motion for summary judgment as to Counts Three, Four, and Five of the Complaint, “since the plaintiff no longer challenge[d] the adequacy of the defendants processing of those claims, ” and denied the motion as to Counts One and Two to avoid addressing the remaining claims “in a piecemeal fashion” and to “resolve all of the plaintiff's remaining challenges simultaneously, ” after the “processing of the 2013 [McClanahan] Request.” Id.

         In response to the 2013 McClanahan Request, the FBI processed a total of 69 pages, of which 30 pages were released in full, 13 pages were withheld in part, and 26 pages were withheld in full. Def.'s SMF ¶¶ 11-12. DOJ subsequently renewed its motion for summary judgment as to Count One (challenging the FBI's responses to the 2012 and 2013 McClanahan Requests), and Count Two (challenging the FBI's response to the Crider Request), which motion is now ripe for resolution.


         Congress enacted the FOIA as a means “to ‘open agency action to the light of public scrutiny, '” ACLU v. U.S. Dep't of Justice, 750 F.3d 927, 929 (D.C. Cir. 2014) (quoting Dep't of Air Force v. Rose, 425 U.S. 352, 361 (1976)), and “to promote the ‘broad disclosure of Government records' by generally requiring federal agencies to make their records available to the public on request, ” DiBacco v. U.S. Army, 795 F.3d 178, 183 (D.C. Cir. 2015) (quoting Dep't of Justice v. Julian, 486 U.S. 1, 8 (1988)). As the Supreme Court has “consistently recognized[, ] . . . the basic objective of the Act is disclosure.” Chrysler Corp. v. Brown, 441 U.S. 281, 290 (1979). At the same time, the statute represents a “balance [of] the public's interest in governmental transparency against ‘legitimate governmental and private interests that could be harmed by release of certain types of information.'” United Techs. Corp. v. U.S. Dep't of Def., 601 F.3d 557, 559 (D.C. Cir. 2010) ((quoting Critical Mass. Energy Project v. Nuclear Regulatory Comm'n, 975 F.2d 871, 872 (D.C. Cir. 1992) (en banc) (internal quotation marks omitted)). Reflecting that balance, the FOIA contains nine exemptions set forth in 5 U.S.C. § 552(b), which “are explicitly made exclusive and must be narrowly construed.” Milner v. U.S. Dep't of Navy, 562 U.S. 562, 565 (2011) (internal quotation marks and citation omitted); see Murphy v. Exec. Office for U.S. Attys., 789 F.3d 204, 206 (D.C. Cir. 2015); Citizens for Responsibility & Ethics in Wash. v. U.S. Dep't of Justice (“CREW”), 746 F.3d 1082, 1087-88 (D.C. Cir. 2014); Pub. Citizen, Inc. v. Office of Mgmt. & Budget, 598 F.3d 865, 869 (D.C. Cir. 2010). “[T]hese limited exemptions do not obscure the basic policy that disclosure, not secrecy, is the dominant objective of the Act.” Rose, 425 U.S. at 361.

         The agency invoking an exemption has the burden “to establish that the requested information is exempt.” Fed. Open Mkt. Comm. of Fed. Reserve Sys. v. Merrill, 443 U.S. 340, 352 (1979); see U.S. Dep't of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 755 (1989); DiBacco, 795 F.3d at 195; CREW, 746 F.3d at 1088; Elec. Frontier Found. v. U.S. Dep't of Justice, 739 F.3d 1, 7 (D.C. Cir. 2014), cert. denied sub nom. Elec. Frontier Found. v. U.S. Dep't of Justice, 135 S.Ct. 356 (2014); Assassination Archives & Research Ctr. v. CIA, 334 F.3d 55, 57 (D.C. Cir. 2003). In order to carry this burden, an agency must submit sufficiently detailed affidavits or declarations, a Vaughn index of the withheld documents, see Vaughn v. Rosen, 484 F.2d 820, 827-28 (D.C. Cir. 1973), or both, to demonstrate that the government has analyzed carefully any material withheld, to enable the court to fulfill its duty of ruling on the applicability of the exemption, and to enable the adversarial system to operate by giving the requester as much information as possible, on the basis of which the requester's case may be presented to the trial court. See Oglesby v. U.S. Dep't of Army, 79 F.3d 1172, 1176 (D.C. Cir. 1996) (“The description and explanation the agency offers should reveal as much detail as possible as to the nature of the document, without actually disclosing information that deserves protection . . . [which] serves the purpose of providing the requestor with a realistic opportunity to challenge the agency's decision.” (citation omitted)); see also CREW, 746 F.3d at 1088 (“The agency may carry that burden by submitting affidavits that ‘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.'” (quoting Larson v. U.S. Dep't of State, 565 F.3d 857, 862 (D.C. Cir. 2009))). While “an agency's task is not herculean, ” Murphy, 789 F.3d at 209, it must “‘describe the justifications for nondisclosure with reasonably specific detail' and ‘demonstrate that the information withheld logically falls within the claimed exemption.'” Id. (quoting Larson, 565 F.3d at 862).

         The FOIA provides federal courts with the power to “enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant, ” 5 U.S.C. § 552(a)(4)(B), and “directs district courts to determine de novo whether non-disclosure was permissible, ” Elec. Privacy Info. Ctr. v. U.S. Dep't of Homeland Sec., 777 F.3d 518, 522 (D.C. Cir. 2015). A district court must review the Vaughn index and any supporting declarations “to verify the validity of each claimed exemption.” Summers v. Dep't of Justice, 140 F.3d 1077, 1080 (D.C. Cir. 1998). “In FOIA cases, ‘summary judgment may be granted on the basis of agency affidavits if they contain reasonable specificity of detail rather than merely conclusory statements, and if they are not called into question by contradictory evidence in the record or by evidence of agency bad faith.'” Judicial Watch, Inc. v. U.S. Secret Serv., 726 F.3d 208, 215 (D.C. Cir. 2013) (quoting Consumer Fed'n of Am. v. U.S. Dep't of Agric., 455 F.3d 283, 287 (D.C. Cir. 2006)). “Ultimately, an agency's justification for invoking a FOIA exemption is sufficient if it appears ‘logical' or ‘plausible.'” Judicial Watch, Inc. v. U.S. Dep't of Def., 715 F.3d 937, 941 (D.C. Cir. 2013) (quoting ACLU v. U.S. Dep't of Def., 628 F.3d 612, 619 (D.C. Cir. 2011)).

         A district court also has an “affirmative duty” to consider whether the agency has produced all segregable, non-exempt information. Elliott v. U.S. Dep't of Agric., 596 F.3d 842, 851 (D.C. Cir. 2010) (referring to court's “‘affirmative duty to consider the segregability issue sua sponte'” (quoting Morley v. CIA, 508 F.3d 1108, 1123 (D.C. Cir. 2007))); Stolt-Nielsen Transp. Grp. Ltd. v. United States, 534 F.3d 728, 734 (D.C. Cir. 2008) (“‘[B]efore approving the application of a FOIA exemption, the district court must make specific findings of segregability regarding the documents to be withheld.'” (quoting Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1116 (D.C. Cir. 2007))); Trans-Pac. Policing Agreement v. U.S. Customs Serv., 177 F.3d 1022, 1028 (D.C. Cir. 1999) (“[W]e believe that the District Court had an affirmative duty to consider the segregability issue sua sponte . . . even if the issue has not been specifically raised by the FOIA plaintiff.”); see also 5 U.S.C. § 552(b) (“Any reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection.”).


         DOJ renews its motion for summary judgment on both remaining claims because “the FBI conducted thorough and adequate searches for responsive records subject to FOIA and withheld only information protected by . . . [FOIA and PA] exemptions.” Def.'s Mem. Supp. Renewed Mot. Summ. J. (“Def.'s Mem.”) at 9, ECF No. 25. The plaintiffs, on the other hand, challenge the adequacy of the FBI's responses to the 2012 and 2013 McClanahan Requests and the Crider Request, contending that: (1) the FBI “performed inadequate searches in all three requests;” (2) certain FOIA exemptions were improperly applied; (3) certain records were improperly excluded from the search; and (4) not all reasonably segregable material was released. Pls.' Opp'n Def.'s Renewed Mot. Summ J. (“Pls.' Opp'n”) at 10, ECF No. 29.[3] Each of these grounds raised by the plaintiffs is addressed seriatim below.

         A. Adequacy of the FBI's Search

         1. Legal Standards

         Upon receiving a FOIA request, federal agencies are “required to perform more than a perfunctory search” to identify potentially responsive records. Ancient Coin Collectors Guild v. U.S. Dep't of State, 641 F.3d 504, 514 (D.C. Cir. 2011). Instead, the agency bears the burden of demonstrating that it “made a ‘good faith effort to conduct a search using methods which can be reasonably expected to produce the information requested.'” DiBacco, 795 F.3d at 188 (internal alterations omitted) (quoting Oglesby v. U.S. Dep't of Army, 920 F.2d 57, 68 (D.C. Cir. 1990)). To meet this burden, the agency must “demonstrate beyond material doubt that its search was ‘reasonably calculated to uncover all relevant documents.'” Valencia-Lucena v. U.S. 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)).

         At the summary judgment stage, this burden may be satisfied through submission of 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.'” Ancient Coin Collectors Guild, 641 F.3d at 514 (quoting Valencia-Lucena, 180 F.3d at 326). Such an affidavit must “‘explain in reasonable detail the scope and method of the search conducted by the agency.'” Morley, 508 F.3d at 1121 (quoting Perry v. Block, 684 F.2d 121, 127 (D.C. Cir. 1982)). “Agency affidavits-so long as they are ‘relatively detailed and non-conclusory'-are ‘accorded a presumption of good faith, which cannot be rebutted by purely speculative claims about the existence and discoverability of other documents.'” Mobley v. CIA, 806 F.3d 568, 581 (D.C. Cir. 2015) (quoting SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991)); see also DeBrew v. Atwood, 792 F.3d 118, 123 (D.C. Cir. 2015). Only where “a review of the record raises substantial doubt, particularly in view of ‘well defined requests and positive indications of overlooked materials, '” should summary judgment be denied. Iturralde v. Comptroller of Currency, 315 F.3d 311, 314 (D.C. Cir. 2003) (quoting Valencia-Lucena, 180 F.3d at 326 (internal quotation marks omitted)).

         2. ...

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