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James Madison Project v. Department of Justice

United States District Court, District of Columbia

July 25, 2017

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

          MEMORANDUM OPINION

          ROSEMARY M. COLLYER, UNITED STATES DISTRICT JUDGE

         Plaintiff James Madison Project (JMP) brought this action pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, appealing the disposition of records it requested from, among other agencies, the Department of Defense (DoD). On September 22, 2016, the Court granted in part and denied in part Defendants' Motion for Summary Judgment, denying summary judgment on Count Three against DoD due to the inadequacy of the search. See James Madison Project v. DOJ, 208 F.Supp.3d 265 (D.D.C. 2016). DoD submitted a supplemental supporting declaration and renewed its motion for summary judgment on May 5, 2017. See DoD Renewed MSJ [Dkt. 20]; see also Second Declaration of Mark H. Herrington [Dkt. 20-1] (Herrington 2nd Decl.). Based on the uncontested facts in DoD's supplemental declarations, and for the reasons set forth below, the Court will grant DoD's Renewed Motion for Summary Judgment.

         I. BACKGROUND

         In 2014, JMP requested records from, among other agencies, the DoD, “pertaining to the Book ‘No Easy Day: The Firsthand Account of the Mission that Killed Osama Biden Laden [sic].'” (No Easy Day). Compl. ¶¶ 7, 21 [Dkt. 1]. JMP 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. See id. At issue here are DoD's response to JMP concerning the No Easy Day FOIA request submitted directly to it, as well as DoD's response with respect to a record referred to DoD by the Civil Division of the Department of Justice (Civil Division).

         On July 30, 2014, JMP submitted the same No Easy Day FOIA request to the Civil Division. See Declaration of Angie A. Cecil [Dkt. 9-1] ¶ 3 (Cecil Decl.). By letter dated September 12, 2014, the Civil Division noted it had referred a record responsive to category 2 of JMP's No Easy Day FOIA request to DoD for a direct response. Cecil Decl. ¶ 5; see also Declaration of Mark H. Herrington [Dkt. 9-3] ¶ 12 (Herrington 1st Decl.). On November 5, 2014, DoD notified JMP that it was withholding the referred record under Exemptions 1 and 5, and explained JMP's appellate rights. Herrington 1st Decl. ¶ 12. JMP admits that it did not file an appeal. JMP's Resp. to DoD's Statement of Material Facts [Dkt. 12-1] ¶ 15.

         JMP also submitted its No Easy Day FOIA request directly to DoD on July 30, 2014. Herrington 1st Decl. ¶ 3. DoD responded on February 10, 2016, withholding all responsive records under Exemptions 5 and 6. See 5 U.S.C. § 552(b)(5), (6); Herrington 1st Decl. ¶¶ 4-12.

         On September 22, 2016, the Court granted summary judgment in favor of all Defendants except DoD, finding that DoD failed to satisfy the requirements of FOIA § 552(b) because the agency failed to demonstrate that a good-faith effort was made to search for responsive records. See James Madison Project, 208 F.Supp.3d at 287-88. In his First Declaration in support of the agency's Motion for Summary Judgment, DoD's representative, Mark Herrington, failed to indicate that a search was conducted at all, “but instead attempt[ed] a Glomar response that all records that might be located would be exempt under Exemptions 5 or 6.” Id. at 287; see also Phillippi v. CIA, 546 F.2d 1009, 1013 (D.C. Cir. 1976) (recognizing Glomar responses). This Court held that “a categorical refusal to search is not sufficient” because DoD “ha[d] not ...


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