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National Security Counselors v. Central Intelligence Agency

United States District Court, District of Columbia

November 14, 2016

NATIONAL SECURITY COUNSELORS, et al, Plaintiffs,
v.
CENTRAL INTELLIGENCE AGENCY, et al, Defendants.

          MEMORANDUM OPINION

          BERYL A. HOWELL, Chief Judge.

         The plaintiffs, a Virginia-based non-profit organization called National Security Counselors ("NSC") and three individuals (collectively, the "plaintiffs"), brought this action against the Central Intelligence Agency ("CIA") and the Office of the Director of National Intelligence ("ODNI") (collectively, the "defendants"), pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 500, et seq., and related statutes, challenging the defendants' responses to numerous FOIA requests and requests for Mandatory Declassification Review ("MDR") of classified agency records, as well as various practices and policies employed by the defendants in responding to such requests generally. While this action initially comprised more than two dozen separate claims under six federal statutes, seven of the plaintiffs' pattern or practice challenges have already been dismissed in whole or in part. Nat'l Sec. Counselors v. CIA (NSCT), 931 F.Supp.2d 77 (D.D.C. 2013). Pending before the Court are two motions: the defendants' Renewed Motion for Summary Judgment as to all of the plaintiffs' remaining claims and the plaintiffs' Cross-Motion for Partial Summary Judgment. For the reasons set out below, the defendants' renewed motion is granted in part and denied in part, and the plaintiffs' motion is denied.

         I. BACKGROUND

         Much of the relevant factual background underlying the present motions is described in this Court's prior opinion resolving the defendants' motion to dismiss nine of the plaintiffs' claims. See NSC I, 931 F.Supp.2d 77 (D.D.C. 2013). Consequently, the relevant factual and procedural history underlying the pending motions is again summarized only briefly below.

         This case stems from the plaintiffs' submission of more than thirty FOIA and MDR requests to the CIA and ODNI between July 2011 and January 2012.[1]Seeking to challenge the defendants' responses to these specific requests, as well as various overarching practices allegedly used by the defendants in responding to such requests, the plaintiffs filed this action in February 2012. Compl., ECF No. 1. After amending their complaint to add four additional causes of action, the plaintiffs eventually alleged twenty-six separate claims against the defendants. First Am. Compl. ("FAC"), ECF No. 9. Upon motion by the defendants for partial dismissal of the plaintiffs' claims, see Defs.' Partial Mot. Dismiss Pls.' FAC, ECF No. 14, the Court dismissed six of the plaintiffs' claims in full, with a seventh claim dismissed in part. NSC 7, 931 F.Supp.2d at 112. As a result, following resolution of the defendants' initial motion to dismiss, nineteen of the plaintiffs' original claims remained pending, in whole or in part, against the defendants.[2]

         Thereafter, the defendants moved for summary judgment on each of the plaintiffs' remaining claims, see Defs.' Mot. Summ. J., ECF No. 63, but this motion was denied without prejudice, Min. Order, dated Nov. 8, 2013, after the parties indicated in a joint status report that the defendants were revising their withholdings and reprocessing documents, requiring the filing of an "updated summary judgment motion, " see Joint Mot. Extension Time File Proposed Briefing Schedule, at 2, ECF No. 72. The defendants then filed a renewed motion for summary judgment, see Defs.' Renewed Mot. Summ. J., ECF No. 74, and the plaintiffs cross-moved for summary judgment on certain of these claims, see Pls.' Cross-Mot. Part. Summ. J., ECF No. 78. During the course of briefing these outstanding motions, the parties continued to engage in negotiations in an effort to narrow the issues requiring resolution by the Court. See Sec. Joint Mot. Amend Summ. J. Briefing Schedule at 1, ECF No. 82. In light of these ongoing discussions, the Court stayed these actions and directed the parties to inform the Court of any issues still in dispute when their negotiations were complete. See Min. Order, dated March 16, 2015.

         On April 2, 2015, the parties jointly notified the Court of the resolution of many of their remaining disputes. Despite this substantial progress, however, the parties reported that they continue to disagree as to five outstanding issues: (1) whether the CIA's MDR Fee Structure violates the terms of the Independent Offices Appropriations Act, 31 U.S.C. § 9701 ("IOAA"), and thus was adopted in violation of the APA (Count Two); (2) whether NSC failed to exhaust administratively its challenge to the CIA's response to a FOIA request seeking agency correspondence regarding certain earlier MDR requests (Count Four); (3) whether the CIA conducted adequate searches for agency records responsive to two of the plaintiffs' FOIA requests (Counts Seven and Sixteen); (4) whether the CIA properly issued a Glomar response to a FOIA request seeking information regarding agency records lost at the World Trade Center site following the September 11, 2001, attacks (Count Eleven); and (5) whether the CIA and ODNI wrongfully withheld, in full or in part, ninety-five agency records identified in an updated Vaughn index. See Joint Summ. Remaining Disputes ("Joint Summ.") at 3, ECF No. 95; id., Ex. Combined Vaughn Index and Chart ("Combined Vaughn Index") at 1-18, ECF No. 95-1.[3] Each of these remaining issues has now been fully briefed by the parties and is ripe for consideration.

         On November 1, 2016, the Court directed the defendants to provide an unredacted copy of one partially withheld document identified in the updated Vaughn index for in camera inspection. See Min. Order, dated Nov. 1, 2016. The defendants submitted the document for in camera inspection on November 3, 2016. See Notice of Filing, ECF No. 97.

         II. LEGAL STANDARDS

         A. Summary Judgment in FOIA Cases

         Federal Rule of Civil Procedure 56 provides that summary judgment shall be granted "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). The moving party bears the burden of demonstrating the "absence of a genuine issue of material fact" in dispute, Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986), while the nonmoving party must present specific facts supported by materials in the record that would be admissible at trial and that could enable a reasonable jury to find in its favor, see Anderson v. Liberty Lobby, Inc. (Liberty Lobby), 477 U.S. 242, 248 (1986); Allen v. Johnson, 795 F.3d 34, 38 (D.C. Cir. 2015) (noting that, on summary judgment, appropriate inquiry is "whether, on the evidence so viewed, 'a reasonable jury could return a verdict for the nonmoving party'" (quoting Liberty Lobby, 477 U.S. at 248)). "[T]hese general standards under rule 56 apply with equal force in the FOIA context, " Washington Post Co. v. U.S. HHS, 865 F.2d 320, 325 (D.C. Cir. 1989), and the D.C. Circuit has observed that "the vast majority of FOIA cases can be resolved on summary judgment, '" Brayton v. Office of the United States Trade Representative, 641 F.3d 521, 527 (D.C. Cir. 2011).

         The FOIA was enacted "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) (citing Dep 't of Justice v. Julian, 486 U.S. 1, 8 (1988)). Reflecting the necessary balance between the public's interest in governmental transparency and "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), 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 citations omitted); see also 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, 1088 (D.C. Cir. 2014); Pub. Citizen, Inc. v. Office of Mgmt. & Budget, 598F.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." Dep't of Air Force v. Rose, 425 U.S. 352, 361 (1976).

         In litigation challenging the sufficiency of "the release of information under the FOIA, the agency has the burden of showing that requested information comes within a FOIA exemption." Public Citizen Health Research Group v. FDA, 185 F.3d 898, 904 (D.C. Cir. 1999) (internal quotations omitted); see also Fed. Open Mkt. Comm. of Fed. Reserve Sys. v. Merrill, 443 U.S. 340, 352 (1979) (agency invoking exemption bears the burden "to establish that the requested information is exempt"); 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; Eke. Frontier Found, v. U.S. Dep 't of Justice, 739 F.3d 1, 7 (D.C. Cir. 2014); Assassination Archives & Research Ctr. v. CIA, 334 F.3d 55, 57 (D.C. Cir. 2003). This burden does not shift even when the requester files a cross-motion for summary judgment because "the Government ultimately [has] the onus of proving that the [documents] are exempt from disclosure, " while "[t]he burden upon the requester is merely to establish the absence of material factual issues before a summary disposition of the case could permissibly occur." Public Citizen Health Research Group, 185 F.3d at 904-05 (internal quotations and citations omitted; brackets in original).

         An agency may carry its burden of properly invoking an exemption by submitting sufficiently detailed affidavits or declarations, a Vaughn index of the withheld documents, 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 adversary 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.[4] See Judicial Watch, Inc. v. U.S. Secret Serv., 726F.3d 208, 215 (D.C. Cir. 2013) (internal quotation marks omitted) ("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."); Oglesby v. U.S. Dep't of Army, 79F.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."); CREW, 746 F.3d at 1088 (noting that agency's burden is sustained 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[]" it must "describe the justifications for nondisclosure with reasonably specific detail and demonstrate that the information withheld logically falls within the claimed exemption." Murphy, 789 F.3d at 209 (internal quotation marks omitted) (citing Larson, 565 F.3d at 862). "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 Am. Civil Liberties Union v. U.S. Dep't of Def, 628 F.3d 612, 619 (D.C. Cir. 2011)); Larson, 565 F.3d at 862 (quoting Wolf v. CIA, 473 F.3d 370, 374-75 (D.C. Cir. 2007)).

         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), by reviewing the Vaughn index and any supporting declarations "to verify the validity of each claimed exemption, " Summers v. U.S. Dep't of Justice, 140 F.3d 1077, 1080 (D.C. Cir. 1998).

         District courts also have 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.").

         B. Administrative Procedure Act

         Under the AP A, a reviewing court must set aside a challenged agency action that is found to be, inter alia, "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, " 5 U.S.C. § 706(2)(A); "in excess of statutory jurisdiction, authority, or limitations, or short of statutory right, " id. § 706(2)(C); or "without observance of procedure required by law, " id. § 706(2)(D); Otis Elevator Co. v. Sec'y of Labor, 762 F.3d 116, 120-21 (D.C. Cir. 2014) (citing Fabi Constr. Co. v. Sec'y of Labor, 370 F.3d 29, 33 (D.C. Cir. 2004)). The arbitrary or capricious provision, under subsection 706(2)(A), "is a catchall, picking up administrative misconduct not covered by the other more specific paragraphs" of the APA. Ass'n of Data Processing Serv. Orgs., Inc. v. Bd. of Governors of Fed. Reserve Sys. (ADPSO), 745 F.2d 677, 683 (D.C. Cir. 1984) (Scalia, J.).

         The scope of review under the "arbitrary and capricious standard is 'highly deferential, '" Am. Trucking Ass 'ns, Inc. v. Fed. Motor Carrier Safety Admin., 724 F.3d 243, 245 (D.C. Cir. 2013) (quoting Am. Wildlands v. Kempthorne, 530 F.3d 991, 997 (D.C. Cir. 2008)); Envtl. Def Fund, Inc. v. Costle, 657 F.2d 275, 283 (D.C. Cir. 1981) (same), and "narrow, " such that "a court is not to substitute its judgment for that of the agency, " Judulang v. Holder, 132 S.Ct. 476, 483 (2011); see also Fogo De Chao (Holdings) Inc. v. U.S. Dep't of Homeland Sec., 769 F.3d 1127, 1135 (D.C. Cir. 2014) (same); Agape Church, Inc. v. FCC, 738 F.3d 397, 408 (D.C. Cir. 2013) (same). When "an agency has acted in an area in which it has 'special expertise, ' the court must be particularly deferential to [the agency's] determinations." Sara Lee Corp. v. Am. Bakers Ass'n Ret. Plan, 512 F.Supp.2d 32, 37 (D.D.C. 2007) (quoting Bldg. & Constr. Trades Dep't AFL-CIO v. Brock, 838F.2d 1258, 1266 (D.C. Cir. 1988)). Yet, "courts retain a role, and an important one, in ensuring that agencies have engaged in reasoned decisionmaking." Judulang, 132 S.Ct. at 483-84. Simply put, "the agency must explain why it decided to act as it did." Butte County v. Hogen, 613 F.3d 190, 194 (D.C. Cir. 2010).

         In evaluating agency actions under the "arbitrary and capricious" standard, courts "must consider whether the [agency's] decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Marsh v. Ore. Natural Res. Council, 490 U.S. 360, 378 (1989) (citation and internal quotation marks omitted); Citizens to Preserve Overton Park, Inc. v. Volpe (Overton Park), 401 U.S. 402, 416 (1971), overruled on other grounds by Califano v. Sanders, 430 U.S. 99, 105 (1977); Blue Ridge Envtl. Def. League v. Nuclear Regulatory Comm'n, 716 F.3d 183, 195 (D.C. Cir. 2013). When an agency '"fail[s] to provide a reasoned explanation, or where the record belies the agency's conclusion, [the court] must undo its action.'" Cty. of Los Angeles v. Shalala, 192F.3d 1005, 1021 (D.C. Cir. 1999) (quoting BellSouth Corp. v. FCC, 162 F.3d 1215, 1222 (D.C. Cir. 1999)); see Select Specialty Hosp.-Bloomington, Inc. v. Burwell, 757 F.3d 308, 312 (D.C. Cir. 2014) (noting that when '"an agency's failure to state its reasoning or to adopt an intelligible decisional standard is .. . glaring ... we can declare with confidence that the agency action was arbitrary and capricious'" (quoting Checkosky v. SEC, 23 F.3d 452, 463 (D.C. Cir. 1994))). At the very least, the agency must have reviewed relevant data and articulated a satisfactory explanation establishing a "rational connection between the facts found and the choice made." See Am. Trucking Ass'ns, Inc., 724 F.3d at 249 (quoting State Farm, 463 U.S. at 43); see also EPA v. EME Homer City Generation, L.P., 134 S.Ct. 1584, 1602 (2014) (holding that agency "retained discretion to alter its course [under a regulation] provided it gave a reasonable explanation for doing so"); Amerijet Int'l, Inc. v. Pistole, 753 F.3d 1343, 1350 (D.C. Cir. 2014) ("[A] fundamental requirement of administrative law is that an agency set forth its reasons for decision; an agency's failure to do so constitutes arbitrary and capricious agency action." (internal quotation marks and citation omitted)). "[C]onclusory statements will not do; an agency's statement must be one of reasoning." Amerijet Int'l Inc., 753 F.3d at 1350 (internal quotation marks omitted; emphasis in original).

         III. DISCUSSION

         The FOIA requests at issue in this lawsuit are somewhat unusual as the plaintiffs are seeking to explore the means by which the CIA and other intelligence agencies maintain secret information and withhold this information from public disclosure. Thus, the present action involves numerous FOIA requests aimed at obtaining agency records related to the processing of earlier FOIA requests, as well as related litigation involving the defendants. As a result of their often self-referential nature, certain of the requests underlying the parties' remaining disputes present novel issues that have not been previously addressed in this Circuit or others. The discussion that follows will address these issues in the following order: First, the plaintiffs' challenge, set out in Count Two, to the CIA's policy of assessing a fee to process MDR requests is discussed. With this lone remaining challenge to a broader policy resolved, consideration of the plaintiffs' remaining FOIA claims will begin with the CIA's argument that NSC failed to exhaust administratively the challenge to the CIA's response to one of the FOIA requests at issue in Count Four. Next, the sufficiency of the CIA's search efforts in connection with the FOIA requests at issue in Counts Seven and Sixteen are considered. Lastly, the plaintiffs' remaining challenges to the defendants' withholdings, in whole or in part, of ninety-five records responsive to the plaintiffs' various FOIA requests are discussed.

         A. The CIA's MDR Fee Structure (Count Two)

         In their amended complaint, the plaintiffs challenge the CIA's MDR Fee Structure on both procedural and substantive grounds. First, under Count One, the plaintiffs assert that the CIA violated the APA in adopting its policy of charging fees to process MDR requests without complying with the notice-and-comment procedures generally applicable to federal agency rulemaking. FAC¶¶ 19-39. Beyond this alleged procedural error, the plaintiffs complain, in Count Two, that the MDR Fee Structure runs contrary to the IOAA and, as a result, the CIA's decision to adopt the policy was "arbitrary, capricious, an abuse of discretion, or otherwise contrary to law, " in violation of the APA. Id. ¶¶ 40-50.

         After the defendants succeeded in securing the dismissal of the plaintiffs' procedural challenge, NSC I, 931 F.Supp.2d at 105-12, only the plaintiffs' challenge to substantive provisions of the policy remains in dispute, see Joint Summ. at 3. Following a brief overview of the CIA's historical policy regarding fees charged to process MDR requests, as well as the fee structure currently employed by the agency, the plaintiffs' remaining challenge under the APA is considered.

         1. Overview of the MDR Fee Structure

         Established by Executive Order, the MDR Program is an administrative process by which individuals seeking the release of particular classified documents may, with certain exceptions, require an agency to reconsider whether the sought-after documents are in fact properly classified. 75 Fed. Reg. 707 (Dec. 29, 2009) ("E.O. 13526") § 3.5.[5] To obtain declassification review, an MDR requester must submit a request to the agency that classified the document providing "sufficient specificity to enable the agency to locate it with a reasonable amount of effort." Id. § 3.5(a)(1). Where an agency determines that information no longer meets the current standards for classification, the agency must declassify and release that information unless continued withholding "is otherwise authorized and warranted under applicable law." Id. § 3.5(c).

         In addition to setting out the basic parameters for mandatory declassification review, E.O. 13526 authorizes the Director of the Information Security Oversight Office at the National Archives and Records Administration ("NARA") to promulgate regulations to assist agencies in implementing the Order. E.O. 13526 § 5.1; see 32 C.F.R. §§2001.1 et seq. These implementing regulations specifically permit agencies, "[i]n responding to mandatory declassification review requests for classified records, [to] charge fees in accordance with [the IOAA] or relevant fee provisions in other applicable statutes." 32 C.F.R. § 2001.33(e).

         The CIA's MDR Fee Structure at issue here grew out of two separate sections of an Interim Rule promulgated by the CIA in June 1997 to "implement its obligations under the [FOIA], the Privacy Act, and Executive Order 12958 (or successor Orders) provisions relating to classification challenges by authorized holders, requests for mandatory declassification review, and access by historical researchers." See Freedom of Information Act; Privacy Act; and Executive Order 12958; Implementation ("Interim Rule"), 62 Fed. Reg. 32, 479 (June 16, 1997) (codified as amended at 32 C.F.R. 1900-01, 1907-09); see also FAC ¶ 20. First, with regard to FOIA requests, this Interim Rule provides that "[r]ecords will be furnished without charge or at a reduced rate whenever the Agency determines, " inter alia, that "it is in the public interest because it is likely to contribute significantly to the public understanding of the operations or activities of the United States Government and is not primarily in the commercial interest of the requester." See Interim Rule, 62 Fed. Reg. at 32, 483.

         To that end, the rule delineates for fee purposes three categories of FOIA requesters: (1) "[c]ommercial use" requesters, who were to be charged for "the full direct costs of searching for, reviewing, and duplicating responsive records (if any)"; (2) "[e]ducational and non-commercial scientific institution" and "representatives of the news media" requesters, who were to be charged only for "reproduction beyond the first 100 pages"; and (3) "[a]ll other" requesters, who were to be charged "the full direct cost of searching for and reproducing responsive records (if any) beyond the first 100 pages of reproduction and the first two hours of search time which will be furnished without charge." Id. at 32, 484. Second, the Interim Rule provided that MDR requests "made directly to [the CIA] will be liable for costs in the same amount and under the same conditions" as those set out for FOIA requests. Id. at 32, 496.

         Consistent with this longstanding interim rule, the plaintiffs allege that prior to September 23, 2011, the CIA "rarely if ever charged fees to process MDR requests." See FAC ¶ 23 (explaining that "[o]f the multiple frequent MDR requesters surveyed by [the plaintiffs], none recalled ever being charged by CIA for MDR requests"). On that date, however, the CIA published a final rule amending its earlier regulations addressing fees charged to process MDR requests. See Mandatory Declassification Review ("Final Rule"), 76 Fed. Reg. 59, 032 (Sept. 23, 2011) (codified at32 C.F.R. §§ 1908, et seq.). The Final Rule added 32 C.F.R. § 1908.14, which sets forth new provisions governing whether and how fees are assessed for MDR requests. As relevant here, the new provisions (1) assess reproduction fees for all MDR requests, including a fee of fifty cents per page, $10 per CD, and a minimum fee of $15 per request for reproductions; and (2) assess search and review fees of between $20 and $72 per hour for all MDR requests, which are due "even if [the CIA's] search locates no responsive information or some or all of the responsive information must be withheld under applicable authority." See 32 C.F.R. § 1908.14; see a/so FAC ¶25.

         Since this more recent rule was promulgated, the plaintiffs allege that the CIA "began responding to MDR requests with demands that requesters commit to pay all search, review, and duplication fees at the new fee schedule described in 32 C.F.R. § 1908.14." FAC ¶ 26. Specifically, three of the plaintiffs each submitted one or more MDR requests to the CIA following promulgation of the Final Rule, and the CIA responded to each request by asking the requester to commit to pay the fees outlined in 32 C.F.R. § 1908.14 and holding the request in abeyance until such a commitment was given, See Id. ¶¶ 27-35.

         2. Analysis

         The plaintiffs initially asserted three alternative bases for invalidating the MDR Fee Structure, see FAC ¶¶ 40-50, but have since abandoned their claims under the IOAA and the Mandamus Act, see Pls.' Opp'n Defs.' Mot. Summ J. & Supp. Pls.' Cross-Mot. Part. Summ. J. ("Pls.' Opp'n") at 4, ECF No. 77. Consequently, the discussion that follows addresses only the plaintiffs' claim that, because the MDR Fee Structure exceeds the agency's authority under the IOAA, the CIA's adoption of the Fee Structure was "not in accordance with law" and, therefore, must be set aside under the APA.[6] See Pls.' Opp'n at 4; Defs.' Reply Supp. Renewed Mot. Summ. J. & Opp'n Pl's Cross-Mot. Part. Summ. J. ("Defs.' Reply") at 2, ECF No. 84.

         Enacted to ensure that "each service or thing of value provided by an agency ... to a person .. . is .. . self-sustaining to the extent possible, " the IOAA authorizes federal agencies to "prescribe regulations establishing the charge for a service or thing of value provided by the agency." 31 U.S.C. §§ 9701(a), (b). Such fees must be "(1) fair; and (2) based on-(A) the costs to the Government; (B) the value of the service or thing to the recipient; (C) public policy or interest served; and (D) other relevant facts." Id. § 9701(b). As the D.C. Circuit has explained, while the "IOAA itself provides little specific direction on how to assess the propriety of user fees . . ., the Supreme Court long ago set forth the considerations that control agency determinations to assess fees for Government services." Seafarers Int'l Union of N. Am. v. U.S. Coast Guard, 81 F.3d 179, 182 (D.C. Cir. 1996).

         Most significantly, the Supreme Court has "carefully distinguished between a permissible user fee and an unconstitutional tax." Id. (citing Nat'l Cable Television Ass'n, Inc. v. United States, 415 U.S. 336, 340-41 (1974)). Thus, a "user fee will be justified under the IOAA if there is a sufficient nexus between the agency service for which the fee is charged and the individuals who are assessed." Id. at 182-83. This general distinction notwithstanding, user fees "are valid so long as the agency levies 'specific charges for specific services to specific individuals or companies, '" regardless of whether the "ultimate purpose of the [statutory] scheme giving rise to the . . . user fee[] is to benefit the public." Id. at 183 (quoting Federal Power Commission v. New England Power Co. (NEPCO), 415 U.S. 345, 329 (1974)); see also Engine Manufacturers Ass'n v. EPA, 20 F.3d 1177, 1180 (D.C. Cir. 1994) ("If the agency does confer a specific benefit upon an identifiable beneficiary . . . then it is of no moment that the service may incidentally confer a benefit upon the general public as well.").

         Contending that many MDR requests serve predominately, or even exclusively, public interests, the plaintiffs argue that the CIA's policy of assessing fees on all MDR requesters necessarily runs afoul of the limitations of the agency's authority under the IOAA.[7] Thus, the plaintiffs emphasize that MDR requests ensure that government activities remain open and transparent to suggest that the "ultimate beneficiary" of any MDR request is, in most instances, the general public. Pls.' Opp'n at 6. For that reason, the plaintiffs argue, the CIA's policy of charging fees to process MDR requests cannot be supported under the IOAA. Further, even granting that the IOAA does not categorically preclude the agency from assessing fees to process all MDR requests, the plaintiffs suggest that the agency's failure to distinguish between "commercial" and "non-commercial" requests in adopting its present MDR fee structure violates the IOAA's exception for government services conveying a primarily public benefit. Id. at 9-11. With limited authority on point, the plaintiffs emphasize the broad public interest goals underlying the MDR process, as well as dicta in certain decisions of the D.C. Circuit, to argue that the CIA's fee policy violates the IOAA. In the end, however, their reliance on these authorities is insufficient to demonstrate that the agency's fee regime must be rejected as contrary to the statute.

         First, while the D.C. Circuit has yet to consider whether the IOAA permits agencies to charge fees to process MDR requests, the plaintiffs suggest that the Circuit has generally drawn a distinction between the production of particular agency records and items for which an agency may permissibly charge a fee. Pls.' Opp'n at 5. Specifically, the plaintiffs rely on dicta in Oglesby v. U.S. Dep't of Army, 79 F.3d 1172 (D.C. Cir. 1996), to argue that the D.C. Circuit has "already opined ... on the question of whether or not records released by an agency fall under the IOAA." Pls.' Opp'n at 5. In fact, however, the Oglesby Court's passing reference to the IOAA provides little support for the plaintiffs' view that the statute prohibits charging a fee to process MDR requests.

         Among other issues, Oglesby addressed a challenge to the NARA's refusal to grant a fee waiver to a FOIA requester seeking records related to a World War II-era German commander. Oglesby, 79 F.3d at 1175, 1176-77. In general, FOIA authorizes the waiver of fees otherwise required under the statute for non-commercial requests that provide general public benefits. See 5 U.S.C. § 552(a)(4)(A)(iii). This general fee provision may be superseded, however, by a "statute specifically providing for setting the level of fees for particular types of records." Id. § 552(a)(4)(A)(vi). In Oglesby, the D.C. Circuit considered whether a statute authorizing the NARA to recover all fees associated with reproducing records in its possession thus permitted the agency to deny an otherwise valid FOIA fee waiver. Oglesby, 79 F.3d at 1177. Concluding that the waiver denied was permissible under the superseding NARA statute, the Circuit contrasted that statute with the IOAA, which Congress had indicated would not supersede the general FOIA fee provision. Id. The Circuit explained that, whereas the IOAA's reference to "a thing of value" did not describe "particular types of records, " the NARA statute applied specifically to "materials transferred to the Archivist's custody, " exempting it from the general FOIA fee and waiver provisions. Id. While the Oglesby Court thus made clear that the IOAA does not supplant the fee provisions governing FOIA requests, this observation has no bearing on the separate question, presented here, of whether processing an MDR request constitutes a "service or thing of value provided by the agency" for which an agency may charge a fee under the IOAA. 31 U.S.C. §§ 9701(a), (b).

         With Oglesby providing little, if any, guidance, the plaintiffs point instead to more general D.C. Circuit authority to argue that "it is axiomatic that the release of government information is something which primarily benefits the public" and, therefore, must fall outside the scope of the CIA's authority to assess fees under the IOAA. Pls.' Opp'n at 6. In so doing, however, the plaintiffs rely principally on a misreading of authority addressing the limitations on an agency's authority to charge user fees for services that benefit the public. In particular, the plaintiffs cite Seafarers International Union of North America v. U.S. Coast Guard, 81 F .3d 179 (D.C. Cir. 1996), for the proposition that agencies may not charge user fees for services that provide no "special, private benefit" to the requester. See Vis.' Opp'n at 6-7 (quoting Seafarers Int'l Union, 81 F.3d at 189 n.3 (Henderson, J., dissenting in part and concurring in judgment) (quoting Central & Southern, 777 F.2d at 730)). Significantly, however, the plaintiffs fail to note that, in describing the contours of an agency's fee-charging authority under the IOAA, they rely on an interpretation of prior Circuit authority specifically disavowed by the majority opinion in Seafarers International.

         Contrary to the plaintiffs' suggestion, Seafarers International emphasized that the existence of a public benefit does not necessarily limit an agency's authority to charge fees under the IOAA. In reviewing prior IOAA cases, the Seafarers International Court lamented that the Circuit "sometimes faltered in offering reformulations of the [Supreme] Court's test" for determining whether a particular fee is permissible under the statute. Seafarers Int'l Union, 81 F.3d at 183. Specifically, the Circuit explained that these earlier decisions "reformulated [the applicable Supreme Court precedent] 'to require a certain nexus, a threshold level of private benefit, between the regulatee and the agency before a fee can be assessed against the recipient of the service.'" Id. at 184 (citing Electronic Industries Ass'n v. FCC, 554 F.2d 1109, 1114 (D.C. Cir. 1976)). According to the Circuit, "[t]he problem with this statement of the testis that it suggests that a specific service to an identifiable beneficiary can form the basis for a fee only if the service confers such a private benefit." Id. (emphasis in original). Rejecting this "misguided" interpretation, the Seafarers International majority warned that its earlier decisions "could be misread to mean that an agency must weigh 'public' versus 'private' benefits in determining whether and in what amount to charge fees." Seafarers Int'l Union, 81 F.3d at 184. The dissenting opinion, cited by the plaintiffs, took issue with the majority's treatment of these earlier opinions, arguing instead that the Circuit's prior opinions could not reasonably be interpreted to require an agency to demonstrate that its services primarily, or exclusively, benefit a particular party in order to charge fees under the IOAA. Id. at 193-95 (Henderson, J., dissenting in part and concurring in judgment). Thus, while the dissenting Judge would have preserved the "private benefit" language eschewed by the majority, both opinions would reject any argument that "despite the fact that an agency provides a specific service to an identifiable beneficiary, the agency does not in fact confer a 'private benefit'" justifying the charging of a user fee. Id. at 193 (Henderson, J., dissenting in part and concurring in judgment).

         Consequently, the plaintiffs reliance on IOAA case law to argue that the agency may not assess a fee for MDR requests because they convey no "special, private benefit" to the requester, Pls.' Opp'n at 6-7, is misplaced. As the Seafarers International majority explained, an agency may assess a fee under the IOAA "so long as the agency levies 'specific charges for specific services to specific individuals or companies.'" Seafarers Int'l Union, 81 F.3d at 183 (quoting NEPCO, 415 U.S. at 349). Here, the parties fiercely dispute whether the benefits stemming from a particular MDR request flow primarily to the individual requester, Defs.' Mem. at 9, or are instead fundamentally public in nature, Pls.' Opp'n at 7. Not disputed, however, is the fact that, in processing a particular MDR request, the CIA performs "specific services to [a] specific individual[] or compan[y], " namely, the requester. Seafarers Int'l Union, 81 F.3d at 183 (quoting NEPCO, 415 U.S. at 349).

         As the defendants correctly note, Defs.' Reply at 7, the MDR process is readily distinguishable in this regard from the separate systemic declassification review process agencies also are required to perform under E.O. 13526. See E.O. 13526 § 3.4. This latter process is an ongoing responsibility of all agencies maintaining classified material, id., and is, therefore, not linked to any particular request from a private party for review of specific classified material. By contrast, in processing an MDR request, the CIA reviews only those records the requester has asked the agency to declassify and release. As such, even where records subject to an MDR request are ultimately released more broadly, the CIA's review of these records is a specific service performed expressly for the individual requester. Accordingly, the plaintiffs' suggestion that the agency is precluded entirely under the IOAA from assessing fees in connection with its processing of MDR requests is incorrect.

         Having concluded that the CIA is not categorically barred from imposing fees on MDR requesters, the Court must further consider the plaintiffs' alternative argument that the agency may not charge the same fees to commercial and non-commercial MDR requesters alike. In challenging this aspect of the CIA's present MDR Fee Structure, the plaintiffs do not dispute that the fees charged under the current regime coincide with the costs incurred by the CIA to process an individual MDR request. Pls.' Opp'n at 5 n.3. Nonetheless, the plaintiffs allege that, by decoupling MDR fees from fees charged to FOIA requesters and thereby ignoring any public benefits accruing from non-commercial requests, the CIA sought to make it more difficult for non-commercial requesters to obtain full review of the CIA's declassification decisions in response to their requests. Pls.' Opp'n at 9-11 (explaining that, unlike an agency's withholding under FOIA, the CIA's determinations in response to an MDR request are subject to de novo review by the Interagency Security Classification Advisory Panel). According to the plaintiffs, allowing the CIA to avoid de novo review of its declassification decisions in response to MDR requests raising significant public interest in disclosure "would be a perversion of the law" and a direct violation of the IOAA. Id. at 11. The defendants counter that, to the extent that the agency's processing of an MDR request conveys a benefit to the general public, any such benefit is a consequence of, and entirely dependent on, the original private benefit conveyed to the requester. Defs.' Reply at 9. Since the plaintiffs identify no independent public interest served by the disclosure of declassified material, the defendants argue, the IOAA does not bar the recovery of the full cost of processing both commercial and non-commercial requests. Id. at 9-10 & n.7.

         The Circuit has never squarely addressed the question whether an agency must prorate fees charged to a private party to reflect accompanying public benefits. Nevertheless, existing precedent supports the defendants' contention that the plaintiffs' arguments on this point are "baseless." Id. at 9. As the defendants correctly note, before Seafarers International, the D.C. Circuit observed that "whether an agency must allocate a portion of its costs depends not so much on the magnitude of the benefits to the public, . . but rather on the nature of the public benefits and on their relationship to the private benefits produced by the agency action." Cent. & S. Motor Freight Tariff Ass'n, Inc. v. United States, 777 F.2d 722, 731 (D.C. Cir. 1985). That is, "[i]f the asserted public benefits are the necessary consequence of the agency's provision of the relevant private benefits, then the public benefits are not independent, and the agency would therefore not need to allocate any costs to the public." Id. at 731-32. The Seafarers International Court further explained that "a reviewing court, in deciding whether an agency may exact a fee in connection with a particular [service], need not pause to weigh the relative public and private interests underlying the [service], but can instead turn to the relevant statute to determine the substantive requirements [imposed on the agency in connection with providing the service]." Seafarers Int'l Union, 81 F.3d at 185. Taken together, these decisions strongly suggest that agencies are not required to prorate costs, even in the case of a user likely to amplify the public benefits of an agency service.

         For their part, the plaintiffs offer no support for their contrary contention that the CIA must adjust fees charged to MDR requesters to reflect the public interest aims of non-commercial fee requests. See generally Vis.' Opp'n at 9-11. In principle, the plaintiffs' claim that the current fee structure violates the IOAA stems from their view that, in order to comply with that statute, any MDR fee regime must provide some measure of a public interest fee waiver like that provided under the FOIA statutory fee provision. Id. at 7 (arguing that, like FOIA, "[o]nce an agency releases information in response to an MDR request, that information is automatically publicly available"). Even assuming that, as a policy matter, agencies should treat MDR requests and FOIA requests similarly, however, the plaintiffs point to no statutory or other provision requiring such parity. While both regimes undoubtedly were designed with the public's interest in open and transparent government in mind, Congress saw fit in enacting the FOIA fee provision to provide relief for non-commercial requesters seeking to advance identifiable public interests. By contrast, neither E.O. 13526 nor the implementing NARA regulations require agencies to adopt a parallel fee regime for MDR requests. As a policy matter, such a regime has much to commend it, but imposing such policy, absent any statutory or regulatory mandate to do so, is beyond the purview of this Court

         Absent such a mandate, the Court is persuaded that the agency's decision to adopt its current MDR Fee Structure was not arbitrary or capricious or otherwise contrary to law. Accordingly, the defendants' request for summary judgment as to Count Two is granted, and the plaintiffs' request for partial summary judgment on this issue is denied.

         B. Administrative Exhaustion (Count Four)

         The CIA asserts that NSC has not exhausted its administrative remedies as to request F-2012-00857 ("Request 857"), which is one of two separate FOIA requests underlying Count Four. Defs.' Mem. Supp. Defs.' Renewed Mot. Summ. J. ("Defs.' Mem.") at 12, ECF No. 74. According to the CIA, Request 857 was "submitted the day before [the plaintiff] filed this lawsuit and was not received until the day the lawsuit was filed." Id. Consequently, in the CIA's view, NSC filed suit fewer than twenty days after Request 857 was filed, making this Court's resolution of this claim improper. Id. at 12-13. The plaintiffs counters that Request 857 was added to the present suit in the FAC, which was filed 21 days after the initial complaint in this matter was filed and 22 business days after the request was submitted to the CIA. Pls.' Opp'n at 12-13. Thus, according to the plaintiffs, NSC had constructively exhausted its remedies as to Request 857 by the time the request was added to the suit. Id.

         In general, FOIA requesters seeking to challenge an agency's response to a particular request must exhaust available administrative remedies before seeking relief in federal court. Citizens for Responsibility & Ethics in Washington v. Fed. Election Comm'n (CREW), 711 F.3d 180, 184 (D.C. Cir. 2013); see also DeBrew v. Atwood, 792 F.3d 118, 124 (D.C. Cir. 2015) ("[B]ecause the FOIA provides for an administrative appeal, 'the FOIA's administrative scheme favors treating failure to exhaust as a bar to judicial review.'" (citing Hidalgo v. FBI, 344 F.3d 1256, 1259 (D.C. Cir. 2003))). This general exhaustion requirement notwithstanding, the statute specifies that, once an agency receives a proper FOIA request, the agency must "determine within 20 days (excepting Saturdays, Sundays, and legal public holidays) . . . whether to comply with such request and shall immediately notify the person making such request of such determination and the reasons therefor." 5 U.S.C. § 552(a)(6)(A)(i). As the D.C. Circuit has explained, the penalty for failing to abide by this twenty-working-day timeline "is that the agency cannot rely on the administrative exhaustion requirement to keep cases from getting into court." CREW, 711 F.3d at 189-90.

         Here, the parties agree that the plaintiffs' challenge to the CIA's response to Request 857 did not appear in the original complaint. See Compl. ¶¶ 57-62; see also Defs.' Mem. at 12-13. Rather, it appeared only in the Amended Complaint, which was filed twenty-two business days after NSC originally submitted Request 857. FAC ¶¶ 63-66; see also Pls.' Opp'n at 12. Nonetheless, while recognizing that the Amended Complaint was filed after the twenty-day exhaustion period, the defendant contends that it is "immaterial" that the plaintiffs' Amended Complaint replaced entirely its original Complaint and argues instead that the "relevant question is whether the claim was exhausted when the plaintiff went to court." Defs.' Reply at 10 (emphasis added) (internal alterations, quotations and citations omitted).

         In support, the CIA relies on Murthy v. Schafer, 579 F.Supp.2d 110, 114-15 (D.D.C. 2008), but this non-binding authority is readily distinguishable. In Murthy, the plaintiff filed suit in an employment discrimination action before the relevant statutory deadline for resolving one of his claims administratively had expired and specifically named, in the initial Complaint, a cause of action based upon the unexpired claim. Murthy, 579 F.Supp.2d at 111-12. The plaintiff later amended his Complaint after the 180-day period ended, and argued that the amendment remedied any concern regarding his duty to exhaust available administrative remedies. Id. at 114-15. Concluding that "the filing date, not the amendment date, is the relevant one in assessing his failure to exhaust, " the Murthy Court dismissed the plaintiffs unexhausted claim as not properly before the court. Id. at 115.

         While bearing certain superficial similarities to the present dispute, the crucial difference between Murthy and the instant matter is that in Murthy the unexhausted claim was made in the initial Complaint, which, presumably, would have caused the agency to cease "its administrative review procedures" with respect to that claim. Defs.' Mem. at 10. By contrast, here, the plaintiffs made no allegation regarding Request 857 until after the twenty-business-day statutory exhaustion period had elapsed. Thus, the defendant agency had no basis to presume that the plaintiff would seek judicial review of its processing of this request prior to the conclusion of this period, and there is no reason to believe that allowing this claim to proceed will disrupt any ongoing administrative process.

         For this reason, NSC has constructively exhausted its administrative remedies and the defendants' request for summary judgment on this issue is denied. Accordingly, the defendants' request for summary judgment as to the merits of its withholdings in Count Four, see Defs.' Mem. at 13 n.7, is addressed below, infra Partin.D.2.

         C. Adequacy of Search Efforts

         With these preliminary issues resolved, the Court turns next to the merits of the plaintiffs' remaining FOIA challenges. As previously indicated, this discussion begins with a review of the plaintiffs' outstanding claims contesting the adequacy of the defendant agencies' efforts to identify records responsive to the plaintiffs' FOIA requests at issue in Counts Seven and Sixteen.

         1. Legal Standard

         Upon receiving a FOIA request, federal agencies are "required to perform more than a perfunctory search" to identify potential 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 Valencia-Lucena v. U.S. Coast Guard, 180 F .3d 321, 326 (D.C. Cir. 1999)). To meet this burden, the agency must "demonstrate beyond material doubt that its search was 'reasonably calculated to uncover all relevant documents.'" Valencia-Lucena, 180 F.3d at 325 (quoting Truitt v. Dep't of State,897 F.2d 540, 542 (D.C. Cir. 1990)). At the summary judgment stage, an agency may meet this burden by submitting 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-Lucen ...


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