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Scudder v. Central Intelligence Agency

United States District Court, District of Columbia

May 17, 2017



          BERYL A. HOWELL Chief Judge.

         The plaintiff, Jeffrey Scudder, a former employee of the Central Intelligence Agency (“CIA”), challenges the CIA's response to three requests he made pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, seeking copies of certain articles from the CIA journal Studies in Intelligence (“SII”).[1] See Compl. ¶ 5, ECF No. 1. Although the parties have previously filed, and this Court has ruled upon, four partial motions for summary judgment and a motion for discovery, the instant motion presents the first time “the ultimate issue of whether the documents requested by the plaintiff must be released under the FOIA.” See Scudder v. CIA (“Scudder I”), 25 F.Supp.3d 19, 22 (D.D.C. 2014) (denying partial motions for summary judgment and granting motion for discovery). The parties have since narrowed the issues in dispute and the only issue remaining is whether the CIA appropriately withheld certain articles, in part or in full, under FOIA Exemptions 1 and 3, 5 U.S.C. §§ 552(b)(1), (b)(3). Pending before the Court is the CIA's Motion for Summary Judgment on this issue. Def.'s 3d Mot. Summ. J. (“Def's 3d MSJ”), ECF No. 53.

         I. BACKGROUND

         The facts of this matter are summarized in Scudder I and need not be repeated in detail here. Scudder I, 25 F.Supp.3d at 22-27. Nevertheless, a brief discussion of the plaintiff and the FOIA requests at issue provide context for the instant motion.

         The plaintiff is a computer programmer with over twenty-three years of experience in the intelligence community, “almost all of it handling information technology (‘IT') issues.” Pl.'s First Stmt. Undisputed Material Facts (“Pl.'s 1st SUMF”) ¶ 1, ECF No. 9 (citing Decl. of Jeffrey Scudder (May 22, 2013) (“1st Scudder Decl.”) ¶ 2, ECF No. 9-1). He formerly headed the CIA's Chief Information Officer's Architecture and System Engineering staff for the National Clandestine Service, “worked in Information Security for the Counter Intelligence Center, and was a senior IT project manager at both the Federal Bureau of Investigation and CIA.” Id. He claims to have a “deep knowledge” of the “CIA's Automated Declassification and Release Environment (‘CADRE') system, ” id., which is what the CIA's FOIA office uses, id. ¶¶ 2, 3. During his tenure with the CIA, the plaintiff also worked for the Historic Collections Division (“HCD”), a division of the CIA's Information Management Systems, which, according to the plaintiff, “review[s] and manually redact[s] classified material for releases to the public.” 1st Scudder Decl. ¶ 7. While with HCD, the plaintiff “came across three document projects” that he alleges “had been ready for release to the public for a decade but for some reason had never been released, ” specifically, a significant number of SII articles. Id. ¶ 8. The plaintiff avers that these document projects, totaling over 10, 000 pages of records, were never released to the public due to an internal dispute between different departments of the CIA that prevented their release to the National Archives and Records Administration. Id. ¶¶ 8-9.

         In December 2010, the plaintiff submitted three FOIA requests to the CIA, seeking electronic copies of nearly two thousand SII articles. Id. ¶ 4. By February 27, 2014, the plaintiff had narrowed his request to 419 SII articles. See Pl.'s Clarification Of His Not. of Part. Withdrawal of Parties' Cross-Summ. J. Mots. Pertaining to Def.'s Fee Waiver Denial at 1-2, ECF No. 39; Pl.'s Opp'n Def.'s 3d MSJ (“Pl.'s Opp'n”) at 2, ECF No. 58. In Scudder I, prior to filing any dispositive motions on the merits, each party first sought summary judgment on the question of whether the CIA was required to produce the requested records in electronic format. Scudder I, 25 F.Supp.3d at 26. This Court denied summary judgment to both sides in light of material factual disputes and the CIA's insufficient affidavits in support of its motion. Id. at 49 (describing Decl. Martha T. Lutz, Chief, Litigation Support Unit, CIA (Jul. 17, 2013) (“1st Lutz Decl”), ECF No. 14-3 and Supp. Decl. Martha T. Lutz, Chief, Litigation Support Unit, CIA (Nov. 7, 2013) (“2d Lutz Decl.”), ECF No. 29-1). These factual disputes were based, in part, on the plaintiff's assertion of personal knowledge regarding whether the CIA was “technologically capable of providing the requested records in” electronic format and whether production in electronic format would be “unduly burdensome.” Id. at 49; see Id. at 43-49 (discussing the material factual disputes). The plaintiff's motion for discovery was granted to effectuate the resolution of these factual disputes. Id. The parties subsequently reached “a creative solution to the production of electronic records, ” such that the CIA agreed to “put[] PDF copies of the [non-exempt] requested records on its website.” Joint Status Report at 2, ECF No. 47.

         Later that year, in September 2014, the CIA produced 249 of the articles requested, in full or in part, and withheld 170 records in full on the basis of FOIA Exemptions 1, 3, and 6.[2] Def.'s 3d Stmt. Undisputed Material Facts (“ Def.'s 3d SUMF”) ¶ 4, ECF No. 53; Pl.'s Response Def.'s 3d SUMF ¶ 4, ECF No. 58-4 (undisputed). The CIA later determined that, “because [the plaintiff] requested the same records in multiple requests, it had actually withheld 167 documents in full.” Def.'s 3d SUMF ¶ 6 at 2; Pl.'s Response Def.'s 3d SUMF ¶ 6 (undisputed).[3]

         Remaining in dispute are 177 articles, which fall into two categories: (1) the 167 articles withheld in full, and (2) the partial withholdings from ten of the 249 released articles. Def.'s 3d SUMF ¶ 8 at 2; Pl.'s Response Def.'s 3d SUMF ¶ 8 (undisputed).[4] For those articles withheld in full, the CIA asserted that the withholding is justified under Exemption 1, which exempts from disclosure records that are “(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order, ” 5 U.S.C. § 552(b)(1); Exemption 3, which exempts from disclosure records that are “specifically exempted from disclosure by [other] statute, ” id. § 552(b)(3); and Exemption 6, which exempts from disclosure records that pertain to “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy, ” id. § 552(b)(6). For the ten challenged articles released in part, the CIA invoked only Exemptions 1 and 3. CIA Vaughn Index (“Vaughn Index”) at 21-24, ECF No. 53-2. 2d at 168. In response to the FOIA request, the CIA located and produced TOCs from 148 issues of SII published over the last fifty years. NSC III, 206 F.Supp.3d at 254. The CIA withheld certain material appearing in these TOCs, including a number of authors' names, article titles, and other information, all under FOIA's Exemption 1. NSC II, 960 F.Supp.2d at 168. This Court concluded that the CIA had appropriately withheld information pursuant to Exemption 1 and granted the CIA summary judgment. Id. The NSC plaintiff sought reconsideration, contending, inter alia, that the CIA had released information in the instant case showing that a total of four TOCs were missing or incomplete from the CIA's production, NSC III, 206 F.Supp.3d at 252, but this motion was denied, id. at 256- 57.

         The plaintiff has not moved for summary judgment. Instead, the plaintiff seeks denial of the CIA's motion and either discovery or an in camera review of a sample of the withheld documents by this Court. Pl.'s Opp'n. at 16-18. The CIA opposes any discovery or in camera review and rests on the declaration and Vaughn Index submitted with its summary judgment motion, Def.'s Reply Pl.'s Opp'n Def.'s Mot. (“Def.'s Reply”) at 11-12, ECF No. 60, as well as a supplemental and amended Vaughn index, which were submitted in camera and ex parte. See Def.'s Notice of Lodging, ECF No. 62 (providing notice that the CIA had “complied with the Court's Minute Orders and ha[d] submitted its declaration and amended Vaughn Index in camera, ex parte and under seal”) (hereinafter “4th Lutz Decl. (sealed)” and “amended Vaughn Index (sealed)”).


         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 [R]ule 56 apply with equal force in the FOIA context, ” Washington Post Co. v. U.S. Dep't of Health & Human Servs., 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 U.S. 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 U.S. Dep't of Justice v. Julian, 486 U.S. 1, 8 (1988)). “However Congress was also aware that ‘legitimate governmental and private interests could be harmed by release of certain types of information.'” AquAlliance v. United States Bureau of Reclamation, No. 15-5325, 2017 WL 1842507, at *1 (D.C. Cir. May 9, 2017) (quoting Department of Justice v. Julian, 486 U.S. 1, 8 (1988)). Accordingly, FOIA “balances the public's need for access to official information with the Government's need for confidentiality, ” id. (quoting Weinberger v. Catholic Action of Hawaii, 454 U.S. 139, 144 (1981) (alteration adopted)), through application of nine exemptions, which are “explicitly made exclusive and must be narrowly construed, ” Am. Immigration Lawyers Ass'n v. Exec. Office for Immigration Review, 830 F.3d 667, 673 (D.C. Cir. 2016) (quoting Milner v. U.S. Dep't of Navy, 562 U.S. 562, 565 (2011)); see also Nat'l Ass'n of Criminal Def. Lawyers v. Dep't of Justice Exec. Office for United States Attorneys, 844 F.3d 246, 249 (D.C. Cir. 2016); Murphy v. Exec. Office for U.S. Attorneys, 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). “[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 a FOIA suit, the burden is ‘on the agency to sustain its action, ' and the district court must ‘determine the matter de novo.'” DiBacco, 795 F.3d at 184 (quoting 5 U.S.C. § 552(a)(4)(B)); 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); CREW, 746 F.3d at 1088; Elec. Frontier Found. v. U.S. Dep't of Justice (“EFF”), 739 F.3d 1, 7 (D.C. Cir. 2014).

         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. See Judicial Watch, Inc. v. U.S. Secret Serv., 726 F.3d 208, 215 (D.C. Cir. 2013) (“In FOIA cases, “‘[s]ummary 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.'” (quoting Consumer Fed'n of Am. v. Dep't of Agric., 455 F.3d 283, 287 (D.C. Cir. 2006)); see also Oglesby v. U.S. Dep't of Army, 79 F.3d 1172, 1176 (D.C. Cir. 1996) (instructing that agency affidavit “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)); 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 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 ...

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