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The James Madison Project v. Department of Justice

United States District Court, District of Columbia

September 22, 2016

THE JAMES MADISON PROJECT, Plaintiff,
v.
DEPARTMENT OF JUSTICE, et al., Defendants.

          MEMORANDUM OPINION

          ROSEMARY M. COLLYER UNITED STATES DISTRICT JUDGE

         The James Madison Project challenges the adequacy of the responses to its FOIA requests that were sent to the Department of Justice and various constituent agencies of DOJ, the Department of Defense and various constituent agencies of DoD, and the Central Intelligence Agency. The James Madison Project also requests leave to amend its Complaint under Federal Rule of Civil Procedure 15(a). The Court will deny Plaintiff's motion for leave to file an amended complaint and grant in part and deny in part Defendants' motion for summary judgment.

         I. FACTS

         Plaintiff is The James Madison Project, “a non-partisan organization established in 1998 to promote government accountability and the reduction of secrecy, as well as educating the public on issues relating to intelligence and national security.” Compl. [Dkt. 1] ¶ 3. Founded by Mark Zaid, The James Madison Project is “always looking for ways to better develop the laws and policies surrounding the Freedom of Information and Privacy Acts, and foster greater openness in our society without unnecessarily infringing upon any individual's right to privacy.” James Madison Project, About The James Madison Project, www.jamesmadisonproject.org (last visited Sept. 15, 2016).

         Plaintiff requested records from the Executive Office for the United States Attorneys (EOUSA) and the DOJ Civil Division, both within Defendant DOJ; the Navy and the Defense Intelligence Agency (DIA), both within Defendant DoD; and Defendant CIA. The identical requests “specifically sought copies of records, including cross-references, pertaining to the Book “No Easy Day: The Firsthand Account of the Mission that Killed Osama Biden Laden [sic].” (No Easy Day). Compl. ¶ 7. Plaintiff sought:

1. Legal analyses of the extent to which the author of No Easy Day, identified by the pseudonym Mark Owen (“Mr. Owen”), was bound by non-disclosure agreements to submit written manuscripts for pre-publication review;
2. Analyses of the extent to which information contained within the published version of No Easy Day remains properly classified;
3. Any “damage” or “harm” assessments made regarding the impact that the disclosure of any properly classified information has had upon the national security of the United States;
4. Legal analyses of the viability of taking legal action against Mr. Owen, including civil and/or criminal litigation;
5. Any documentation memorializing analyses of administrative measures that could be taken against Mr. Owen, including with respect to his continued eligibility for access to classified information; and
6. Legal analyses of the viability of taking legal action against the Penguin Group USA, the company that published No Easy Day.

Id. ¶ 8. The period of time from which records were sought was January 1, 2011 to the date of acceptance of the request at each recipient. See Id. It is to be noted that Plaintiff claims no relationship with Mr. Owen or his real-life counterpart.

         A. DOJ Civil Division

         The Civil Division “represents the United States, its departments and agencies, Members of Congress, Cabinet Officers, and other federal employees in any civil or criminal matter within its scope of responsibility.” DOJ, About the Civil Division, www.justice.gov/ civil/about (last visited Sept. 15, 2016). The Civil Division acknowledged receipt of Plaintiff's July 30, 2014 FOIA request by letters dated July 31, 2014 and August 18, 2014. Declaration of Angie E. Cecil [Dkt. 9-1] (Cecil Decl.) ¶¶ 3-5. By letter dated September 12, 2014, the Civil Division provided its final response, informing Plaintiff that it could not release records requested in items 1, 4, and 5 because “without consent, proof of death, or an overriding FOIA public interest, disclosure of law enforcement records concerning an individual would constitute a clearly unwarranted invasion of personal privacy.” Cecil Decl. ¶ 5 (citing 5 U.S.C. §§ 552(b)(6), (7)(C) (2006 & Supp. II 2010)). The final response further stated that, regarding items 3 and 6, “‘any information related to such assessments or legal analyses that may exist is protected from disclosure under the FOIA pursuant to 5.U.S.C. § 552(b)(5), ' citing the deliberative process privilege, the attorney work product privilege, and the attorney-client privilege.” Id. In further response, the Civil Division informed Plaintiff that it was referring records responsive to item 2 to the DoD for processing and direct response. Id.; see id., Ex. D (final response letter).

         Because “disclosure of law enforcement records . . . could reasonably be expected to constitute an unwarranted invasion of personal privacy, ” the Civil Division did not conduct a search for records responsive to items 1, 4, and 5 of Plaintiff's request. Id., Ex. D at 1. The Cecil Declaration explains that:

[I]tem 1 sought “legal analyses of the extent to which the author . . . was bound by non-disclosure agreements to submit written manuscripts for pre-publication review.” Item 4 sought “legal analyses of the viability of taking legal action against Mr. Owen.” Item 5 sought “any documentation memorializing analyses of administrative measures that could be taken against Mr. Owen.”

Id. ¶ 9. Plaintiff proffered no consent or proof of death and the Civil Division rejected its argument that Mr. Owen had diminished privacy rights due to the publicity and fame of his book so that there was an overriding public interest. In addition, the Civil Division stated that Plaintiff's argument that “releasing the records would shed light on the government's investigation of the matter, ” Id. ¶ 10, did “not constitute an overriding public interest to diminish an individual's privacy interests as the subject of an investigation, particularly such a sensitive investigation involving the potential release of classified, national security information.” Id. ¶ 11.

         As to items 2, 3 and 6 of Plaintiff's FOIA request, the Division identified those attorneys most likely to have responsive records. These persons were all members of the Federal Programs Branch.[1] “In response to item 2 of the request, the Division attorneys located one document, which originated with DOD [sic].” Id. ¶ 12. Determination of whether that record could be released was referred to DoD. See id., Ex. D at 1.[2] “In response to items 3 and 6 o[f] the request, Division attorneys identified a volume of records.” Id. ¶ 12. Thereafter, DOJ determined that the searches were complete. Id. ¶ 13. Records responsive to request items 3 and 6 were withheld under Exemption 5, 5 U.S.C. § 552(b)(5), based on attorney work product, attorney-client communications, and the deliberative process privilege. Id. ¶¶ 14-17. No segregable information was identified. Id. ¶ 18.

         Further, despite the requirement that an agency identify the volume of responsive records withheld in whole and a description of the individual records withheld, the Civil Division did not do so, based on Ms. Cecil's determination that “revealing the volume of responsive records or describing the individual documents withheld could indicate the level of importance associated with a particular issue . . ., [including] the attorneys' strategies or areas of emphasis in their legal analyses, or the lack thereof.” Id. ¶ 20. She added that, “[p]articular to this request, ” revealing a volume estimate of records reflecting any assessment of damage or harm to the United States or the viability of taking legal action against the publisher could reveal the emphases placed on each aspect of impact and, thus, attorney strategies and work product. Id.

         Plaintiff appealed by letter dated September 15, 2014. See id., Ex. E. The Office of Information Policy (OIP), DOJ, affirmed the Civil Division's final response by letter dated January 21, 2015. See id., Ex. G.

         B. EOUSA

         Plaintiff submitted its No Easy Day FOIA request to EOUSA by email dated January 30, 2014. Declaration of John Kornmeier [Dkt. 9-2] (Kornmeier Decl.) ¶ 3. EOUSA issued its final response by letter dated December 8, 2014. Id. ¶ 5. That letter stated that EOUSA had searched the U.S. Attorney's Office for the Eastern District of Virginia and located no responsive records. Id., Ex. B. It specifically informed Plaintiff that its December 8 letter was its final decision and that if Plaintiff were not satisfied, it had sixty (60) days to file an administrative appeal. Id. Plaintiff did not file an administrative appeal. Id. ¶ 6.

         Plaintiff states that it never received any response from EOUSA and that it had no obligation to exhaust administrative remedies. Following Defendants' filing of the Motion to Dismiss, Plaintiff submitted a second, identical set of FOIA requests to EOUSA on February 12, 2016. See Mot. to Amend, Ex. 3 [Dkt. 13-6]. Plaintiff has received no substantive response from EOUSA regarding this FOIA request. Plaintiff moved to amend its Complaint to include claims against EOUSA related to its second, 2016, No Easy Day FOIA request.

         C. DoD

         Six months later, on July 30, 2014, Plaintiff submitted its No Easy Day FOIA request directly to DoD. Herrington Decl. ¶ 3. DoD responded on February 10, 2016. Id. ¶ 4. DoD informed Plaintiff that responsive records existed, but it was withholding them under FOIA Exemption 5. Id., Ex. B. Further, DoD stated that it could not provide the number of records withheld, the dates of such records, or a description of them without compromising the information Exemption 5 was designed to protect. Id. Because DoD's response occurred after the commencement of this litigation, Plaintiff's administrative appeal rights are moot. See Bayala v. Dep't of Homeland Security, 827 F.3d 31, 35-36 (D.C. Cir. 2016).

         D. Navy

         The Complaint alleges that Plaintiff submitted by fax its No Easy Day FOIA request to Navy on July 30, 2014. Compl. ¶ 25. Navy has submitted a declaration in this Court that states that Navy has searched and has found no record of ever receiving Plaintiff's No Easy Day FOIA request. Declaration of Robin L. Patterson [Dkt. 9-4] (Patterson Decl.) ¶ 4. Navy searched its online case management system and the Naval Special Warfare Command-the Navy component most likely to maintain responsive records-and did not locate any record of the request. Id. Plaintiff challenges that response with the submission of a fax cover sheet that indicates that Plaintiff sent a fax to Navy on August 2, 2014, and that the fax was successfully “transmitted.” See Mot. to Amend, Ex. 1 [Dkt. 13-4]; id., Ex. 2 [Dkt. 13-5] ¶ 5. Plaintiff assails Navy's arguments here and demands discovery into the operation of Navy's fax machine.

         Following Defendants' filing of the Motion to Dismiss, Plaintiff submitted a second, identical FOIA request to Navy on February 24, 2016. See Mot. to Amend, Ex. 3 [Dkt. 13-7]. Plaintiffs have received no substantive response from Navy regarding this second FOIA request. Plaintiff moved to amend its Complaint to include claims against Navy related to the second No Easy Day FOIA request.

         E. DIA

         Plaintiff submitted the No Easy Day FOIA request to DIA on July 30, 2014. Declaration of Alesia Y. Williams [Dkt. 9-5] (Williams Decl.) ¶ 5. DIA initiated a search of its two primary databases on August 11, 2014, using the term “No Easy Day.” Id. ¶ 6. It identified two responsive records, both of which originated at other agencies. Id. ¶ 8. DIA referred one of the records to Navy and the other to the National Security Agency (NSA), id., and notified Plaintiff of the referrals on February 1, 2016. See Id. ¶ 12; id., Ex. C. Navy responded directly to Plaintiff on April 15, 2015 and released the responsive record in its entirety. See Compl. ¶ 30.

         NSA responded directly to Plaintiff by letter dated January 29, 2016. See NSA Letter [Dkt. 9-10]. NSA told Plaintiff that the responsive record referred to it by DIA is a summary of press reports and that producing the record would violate NSA's subscription contracts with its news services. Id. Accordingly, NSA withheld the record in full under FOIA Exemption 4. Id. “Plaintiff's counsel has informed Defense counsel that [Plaintiff] is not interested in published press reports and does not intend to challenge NSA's withholding.” MSJ [Dkt. 9] at 5. Further, Plaintiff “concedes that DIA conducted a legally sufficient search.” Opp'n to MSJ [Dkt. 12] at 8 n.5. Because NSA's response was received after the commencement of this litigation, Plaintiff's administrative appeal rights are moot. See Bayala, 827 F.3d at 35-36.

         F. CIA

         Plaintiff also submitted the same No Easy Day FOIA request to CIA on July 30, 2014. Declaration of Antoinette B. Shiner [Dkt. 9-6] (Shiner Decl.) ¶ 13. On August 4, 2014, CIA informed Plaintiff that its request was received and assigned reference number F-2014-02190. Id. ¶ 15; see id., Ex. B. In a letter dated September 4, 2014, CIA informed Plaintiff that it would have no records responsive to item 1, that is, legal analyses of the extent to which the author of No Easy Day, identified by the pseudonym Mark Owen, was bound by non-disclosure agreements to submit written manuscripts for pre-publication review, and referred Plaintiff to DoD for that request. Id. ¶ 16; see id., Ex. C. By letter dated January 22, 2016, CIA issued its final response to Plaintiff's FOIA request. Id. ¶ 18; see id., Ex. D. In that letter, CIA told Plaintiff that it had identified and was withholding forty-one (41) records in their entirety under various FOIA Exemptions discussed below. Id.; see also id., Ex. D. Because CIA's response was received after the commencement of this litigation, Plaintiff's administrative appeal rights are moot. See Bayala, 827 F.3d at 35-36.

         G. Procedural History

         Plaintiff sued all of the agencies listed above in a six-count Complaint on August 12, 2015. The Complaint alleges that each Agency and Department violated FOIA and that the claimed exemptions do not apply. Defendants answered on October 2, 2015. On February 11, 2016, Defendants moved for summary judgment. See MSJ. Plaintiff opposed and moved for leave to file a first amended complaint on March 24, 2016. See Opp'n to MSJ; Mot. to Amend. Defendants oppose Plaintiff's motion to amend. See Opp'n to Mot. to Amend [Dkt. 15]. The merits are fully briefed and both motions are ripe for resolution.

         II. LEGAL STANDARD

         A. Federal Rule of Civil Procedure 15(a)

         Under Federal Rule of Civil Procedure 15(a), a party may amend its pleading once as a matter of course before a responsive pleading is served. Fed.R.Civ.P. 15(a). Federal Rule of Civil Procedure 15(a) provides:

(1) Amending as a Matter of Course. A party may amend its pleading once as a matter of course within:
(A) 21 days after serving it, or
(B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.
(2) Other Amendments. In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires.

Fed. R. Civ. P. 15(a). "Motions to dismiss and for summary judgment do not qualify as responsive pleadings for the purposes of Rule 15." Boyd v. District of Columbia, 465 F.Supp.2d 1, 3 (D.D.C. 2006) (citing James Hurson Assocs., Inc. v. Glickman, 229 F.3d 277, 283 (D.C. Cir. 2000); Bowden v. United States, 176 F.3d 552, 555 (D.C. Cir. 1999); U.S. Info. Agency v. Krc, 905 F.2d 389, 399 (D.C. Cir. 1990)).

         "The grant or denial of leave lies in the sound discretion of the district court." Adams v. Quattlebaum, 219 F.R.D. 195, 197 (D.D.C. 2004) (citing Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996)). A court may deny a motion to amend if it finds "undue delay, bad faith or dilatory motive on part of the movant, repeated failure to cure deficiencies by amendments previously allowed, [or] undue prejudice to the opposing party." Foman v. Davis, 371 U.S. 178, 182(1962).

         When amendment is sought shortly after discovery ends but before summary judgment briefing has commenced, the prejudice to a defendant "if any, is minimal and it simply does not override the liberal standard that this Court must apply when determining whether to grant leave to amend under Fed.R.Civ.P. 15." Ellis v. Georgetown Univ. Hosp., 631 F.Supp.2d 71, 80 (D.D.C. 2009). Indeed, as the court noted in Ellis, "any potential prejudice would be ameliorated by supplemental discovery related to" the new allegations. Id. at 79. "[W]here a defendant has filed a dispositive motion . . . and plaintiff has opposed it, denial of permission to amend is proper." Moldea v. New York Times Co., 793 F.Supp. 338, 338 (D.D.C. 1992) (citing Wilderness Society v. Griles, 824 F.2d 4, 19 (D.C. Cir. 1987)).

         Whether there has been an "unexplained delay in pleading" previously-known allegations is "another important consideration." Societe Liz, S.A. v. Charles of the Ritz Grp., Ltd.,118 F.R.D. 2, 4 (D.D.C. 1987); see also LaPrade v. Abramson, No. 97-10, 2006 WL 3469532, at *5 (D.D.C. Nov. 29, 2006) (denying leave to file a fourth amended complaint where the plaintiff had ...


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