United States District Court, District of Columbia
A. HOWELL CHIEF JUDGE
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
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.
First FOIA Litigation
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.
Second FOIA Litigation
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.
The Plaintiffs' FOIA Requests at Issue
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”),  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. 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.
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.
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.
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.
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.
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.
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.”
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.
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.
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).
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)).
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
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.
Each of these grounds raised by the plaintiffs is addressed
Adequacy of the FBI's Search
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)).
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)).