United States District Court, District of Columbia
ROSEMARY M. COLLYER, UNITED STATES DISTRICT JUDGE
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.
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
2. Analyses of the extent to which information contained
within the published version of No Easy Day remains
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
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).
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.
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. ¶¶
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 ...