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Muckrock, LLC v. Central Intelligence Agency

United States District Court, District of Columbia

February 28, 2018

MUCKROCK, LLC, Plaintiff,
v.
CENTRAL INTELLIGENCE AGENCY, Defendant.

          MEMORANDUM OPINION

          KETANJI BROWN JACKSON, United States District Judge

         Between July of 2013 and June of 2014, Plaintiff MuckRock LLC submitted a series of document requests to the Central Intelligence Agency (“CIA” or “Defendant”) under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, seeking a variety of records related primarily to the procedures that the CIA employs when it processes FOIA requests. (See generally Am. Compl., ECF No. 8.) MuckRock filed the instant lawsuit on June 10, 2014, after the CIA both missed the statutory deadline for issuing a final determination regarding certain document requests and refused to process others. (See Compl., ECF No. 1.) MuckRock's ten-count amended complaint primarily claims that the CIA improperly failed to respond to various requests for records, but MuckRock also takes aim at the CIA's purported “per se” policy of refusing to process any FOIA request for email records that does not contain four specific pieces of information. (See Am. Compl., ¶¶ 79-85.)

         The CIA has now completed the processing of all but two of MuckRock's FOIA requests, and the parties have otherwise narrowed the issues in this case such that only four of the counts in MuckRock's complaint (Counts 2, 4, 5, and 7) are presently disputed.[1] The disputes in these four counts implicate two searches, three documents, and the CIA's purported “per se” email policy.

         Before this Court at present are the parties' cross-motions for partial summary judgment with respect to the remaining disputes. As far as Counts 2, 4, and 5 are concerned, the CIA asserts that it has conducted adequate searches for the records MuckRock has requested, and the agency also argues that it has properly withheld certain information pursuant to FOIA Exemption 3, which permits an agency to withhold responsive records that a statute specifically exempts from disclosure. (See Mem. in Supp. of Def.'s Mot. for Partial Summ. J. (“Def.'s MSJ Mem.”), ECF No. 14, at 12.)[2] With respect to the alleged per se email policy, the CIA asserts that MuckRock lacks standing, that the issue is not ripe, and that MuckRock is seeking relief that is not available under the FOIA. (Id. at 39-47.) MuckRock contests these contentions (see Pl.'s Mem. in Opp'n to Def.'s Mot for Partial Summ. J. and in Supp. of Pl.'s Cross-Mot. for Partial Summ. J. (“Pl.'s xMSJ Mem.”), ECF No. 22, at 11-14, 16-23, 27-32), and for the reasons explained below, this Court finds that both parties' cross-motions for summary judgment must be GRANTED IN PART and DENIED IN PART, as follows.

         The Court finds that, with respect to Counts 2 and 4, the CIA has established that the agency conducted adequate searches for responsive records, and with respect to Counts 4 and 5, the CIA has properly invoked FOIA Exemption 3 and the National Security Act of 1947, 50 U.S.C. § 3024(i)(1) (“National Security Act”), to withhold, in whole or in part, the three responsive records that remain at issue. As a result, the CIA is entitled to summary judgment on Counts 2, 4, and 5. But MuckRock is entitled to summary judgment on the email-policy claims in Count 7. MuckRock has presented a ripe challenge to an alleged document-processing policy of the CIA that MuckRock has standing to pursue in order to seek a remedy that the FOIA authorizes, and because the record evidence leaves no doubt that the CIA does, in fact, employ an email-request policy that requires the agency to reject certain requests for identifiable records in a manner that contravenes the FOIA, MuckRock is entitled to declaratory relief. A separate order consistent with this Memorandum Opinion will follow.

         I. BACKGROUND[3]

         A. MuckRock's FOIA Requests And The CIA's Pre-Litigation Responses

         MuckRock describes itself as a representative of the news media and claims that, “[t]hrough its imprint MuckRock News, MuckRock gathers information of potential public interest, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work free of charge to its audience[]” through its website. (Compl. ¶ 3.) MuckRock obtains some of the information that it processes through FOIA requests that it submits to various government agencies. To that end, between July of 2013, and June of 2014, MuckRock submitted a series of FOIA requests to the CIA seeking various agency records. (See generally id.) Four of the categories of records that MuckRock sought during this time frame are relevant here and are described below, along with the CIA's initial responses.

         1. Request No. F-2014-00381

         On December 5, 2013, MuckRock submitted a FOIA request to the CIA asking for “[a]ll information in [the CIA Automated Declassification Review Environment (‘CADRE')] about the 110 records responsive to [MuckRock's prior FOIA request], FOIA Request No. F-2010-00600[, ]” other than those 110 records themselves. (Compl. ¶ 23-24.) CADRE is the CIA's “repository for documents reviewed under the [agency's document] release programs”-such as its FOIA and Privacy Act document releases-and the CADRE database also contains the administrative-processing files that are associated with such requests for documents. (Def.'s MS J Mem. at 13 n.2.) In addition, CADRE is the computer application that the CIA's Information Management Services (“IMS”) uses to process documents when responding to FOIA requests and conducting other information-access searches. (Id.)

         On February 18, 2014, the CIA informed MuckRock that it had accepted Request No. F-2014-00381 for processing, and would waive the minimal processing fees associated with this request. (See Decl. of Martha Lutz (“Lutz Decl.”), ECF No. 14-1- 14-4, ¶ 22.) At the time that MuckRock filed its complaint in the instant case, the CIA had not issued its final determination regarding this FOIA request. (See Compl. ¶ 24.)

         2. Request No. F-2014-00753

         In a letter to the CIA dated February 4, 2014, MuckRock requested “(1) [t]he Classification Management Tools User Manual and (2) all Quick Reference Guides” that CIA staff uses “to do classification and declassification review.” (Compl. ¶ 44- 45.) On February 14, 2014, the CIA informed MuckRock that its request for the Manual was duplicative of another request that MuckRock had submitted (and the CIA had denied) in 2013, and that the agency would therefore not be processing that aspect of the request. (See Lutz Decl. ¶ 34.)

         Regarding the Quick Reference Guides, the CIA informed MuckRock that it was “processing a request for the same records from another requester ([MuckRock's] counsel), and that once processing of that request is complete, the Agency would forward [MuckRock] any releasable records[.]” (Id.) This processing was still ongoing when MuckRock filed the instant complaint. (See Compl. ¶ 51.)

         3. Request Nos. F-2013-02200/F-2013-02572

         On July 16, 2013, MuckRock submitted a FOIA request seeking a copy of “any objections to agency data gathering practices received by this agency from telecommunications and web service providers.” (Lutz Decl. ¶ 38.) After the CIA informed MuckRock that this request was too broad for the agency to process, MuckRock submitted an amended request on November 4, 2013. (See Id. ¶¶ 39-40.)[4]The CIA deemed the amended request overly broad as well, and thereafter, apparently suggested various ways in which MuckRock could narrow its request. (See Id. ¶¶ 41- 43.) At the time that MuckRock initiated the instant lawsuit, the agency had not completed processing this FOIA request. (See id.)

         4. Request No. F02014-00752 and Three Similar Requests

         MuckRock submitted four separate FOIA requests on February 4, 2014; collectively, these requests sought “[a]ll email messages (and attachments) sent to the CIO-IMS-STAFF or CIO-I MS-ALL mailing lists by the Director or Deputy Director of IMS” during four different time periods that correspond with the quarters of the 2013 fiscal year. (Compl. ¶ 73.)[5] The CIA allegedly declined to process these four requests unless and until MuckRock provided additional information regarding the emails that MuckRock was requesting. (See Id. ¶ 75.) In this regard, the agency's response letter stated:

The FOIA requires requesters to ‘reasonably describe' the information they seek so that professional employees familiar with the subject matter can locate responsive information with a reasonable amount of effort. We require requesters seeking any form of ‘electronic communications' such as emails, to provide the specific ‘to' and ‘from' recipients, time frame and subject.

(Id. (emphasis added).)[6] MuckRock's complaint further alleges that the CIA did not afford MuckRock any administrative appeal rights with respect to its refusal to process the four requests for emails. (See id.)

         B. Procedural History

         MuckRock filed the initial nine-count complaint in the instant matter on June 10, 2014. (See Compl.) Eight of the counts pertain to the CIA's alleged failure to either process or respond timely to MuckRock's FOIA requests, as noted above, and with respect to those counts, the complaint requests that this Court order the CIA “to release all requested records to MuckRock[.]” (Compl. at 20.) One count (Count 7) further alleges that the CIA employs an illegal “per se test” when it responds to requests for emails, as evidenced by the agency's initial response to the four FOIA requests for emails that MuckRock had submitted. (See id. ¶ 75; see also id. ¶¶ 80, 82.)

         MuckRock amended its complaint on July 8, 2014, before the CIA had filed an answer. (See Am. Compl.) The sole difference between MuckRock's initial complaint and its amended complaint is the addition of Count 10, in which MuckRock challenged the agency's failure to respond to FOIA Request No. F-2014-01732, which requested a personal electronic copy of the CIA Records Search Tool (“CREST”). (See Am. Compl., ¶¶ 105-12; Def.'s MSJ Mem. at 18.) CREST is a database that houses approximately 11.8 million pages of records that have been declassified under Executive Order No. 13256, 75 Fed. Reg. 707 (Dec. 29, 2009)-a Presidential mandate that requires federal agencies to declassify automatically any historical records of value that are otherwise nonexempt and are 25 years or older. (See Def.'s MSJ Mem. at 12.) In January of 2017, the CIA made the CREST database available to the public over the internet by posting the entire database on the agency's website. (See Pl.'s Resp. to Def.'s Suppl. Br., ECF No. 39, at 1.) See also CREST: 25-Year Program Archive, Central Intelligence Agency, https://www.cia.gov/library/readingroom/collection/crest-25-year-program-archive, which mooted the issue for the purpose of MuckRock's amended complaint.[7]

         The CIA filed an answer to MuckRock's amended complaint on August 20, 2014 (see Answer to First Am. Compl., ECF No. 11), and subsequently reported that the agency was continuing to search for, and review, records with respect to two of MuckRock's FOIA requests.[8] The CIA also represented that it had completed processing and producing records with respect to six of MuckRock's FOIA requests, including MuckRock's request for certain emails that the agency had previously refused to process. (See Joint Status Report (“1st Status Rpt.”), ECF No. 12, at 1-2 (stating that the CIA has completed processing and production for Counts 2, 8, and 9); Joint Status Report (“2d Status Rpt.”), ECF No. 13, at 1-2 (stating that the CIA has completed processing and production for Counts 4, 5, and 6).)

         With respect to five of the six FOIA requests that the agency categorized as completely processed, the CIA withheld information, purportedly under applicable FOIA exemptions. For example, in response to MuckRock's request for CADRE information regarding documents that the agency had previously released pursuant to a prior FOIA request, the “CIA produced two documents with portions redacted under FOIA exemptions (b)(1), (b)(3) and/or (b)(5).” (1st Status Rpt. at 1.) Additionally, with respect to MuckRock's request for classification-guidance records, “[t]he CIA produced two documents in full and eight documents with portions redacted under FOIA exemption (b)(3), [and] withheld one document in full under exemption (b)(3)[.]” (2d Status Rpt. at 1.) The agency also “withheld one document in full pursuant to exemption (b)(3)” in response to MuckRock's request for the objections to data gathering practices that the CIA had received from telecommunications and web service providers. (Id. at 2.)

         On January 16, 2015, the CIA moved for summary judgment with respect to Count 2 and Counts 4 through 10 of MuckRock's Amended Complaint. (See Def.'s MSJ Mem.; see also supra n.9.) As relevant here, the CIA's motion asserts that it conducted a reasonable search for records responsive to MuckRock's requests and that it properly withheld information pursuant to applicable FOIA exemptions, and thus it is entitled to summary judgment on Counts 2, 4-6, 8, and 9. (See Def.'s MSJ Mem. at 12; see also Lutz Decl. (explaining the CIA's searches and withholdings); Ex. EE to Lutz Decl. (“Vaughn Index”), ECF No. 14-12 (delineating CIA's withholdings and the reasons therefor).)[9] In regard to MuckRock's challenge to the agency's purported email policy (Count 7), the CIA's motion argues that MuckRock lacks standing to bring this claim, and that MuckRock has relied on nothing more than sheer speculation to establish both the existence of an email policy and the injury that MuckRock claims it has suffered as a result of this purported policy. (See Def.'s MSJ Mem. at 40-43.) The motion further contends that any such claim is not only unripe insofar as it is not based “on any final action taken by the CIA on a particular FOIA request” (id. at 44), but can also be remedied in the context of any future FOIA request that MuckRock submits (see Id. at 47 (“[T]here is no reason to believe that judicial review of a future FOIA request will be an inadequate remedy.”)).

         MuckRock filed a cross-motion for partial summary judgment on June 12, 2015. (See Pl.'s xMSJ Mem.)[10] In pertinent part, MuckRock's cross-motion contends that the CIA conducted inadequate searches for documents responsive to the FOIA requests at issue in Counts 2 and 5. (See Id. at 11-14 (challenging the searches in response to Requests No. F-2014-00381, F-2013-02200 and F-2013-02572, as described in Parts I.A.1, I.A.3, supra).) MuckRock's motion also argues that the CIA improperly invoked Exemption 3 to withhold information with respect to the FOIA requests at issue in Counts 4 and 5. (See Pl.'s xMSJ Mem. at 16-22 (challenging the withholdings in the documents produced in response to Requests No. F-2014-00753, F-2013-02200 and F-2013-02572, as described in Parts I.A.2, I.A.3, supra).)[11] With respect to the “per se” email policy at issue in Count 7, MuckRock points to the CIA's response letter, and maintains that the agency is being disingenuous in arguing that no such policy exists. (See Pl.'s xMSJ Mem. at 28.) MuckRock further contends that this Court can, and should, declare that the agency's email policy violates the FOIA and enjoin the CIA from enforcing that policy. (See Id. at 29-32.)

         This Court held a hearing on the parties' cross-motions for summary judgment on February 17, 2016. After that hearing, the Court ordered the parties to submit supplemental briefing on three discrete issues (see Order Requiring Suppl. Br. (“Suppl. Br. Order”), ECF No. 32), and thereafter, some of the claims and issues that were raised in the amended complaint were changed and/or mooted due to subsequent developments. (See MuckRock's Not. of Recent Development, ECF No. 42, at 1; Order, ECF No. 40, at 1; Pl.'s Resp. to Def.'s Suppl. Br., at 1.)

         The CIA also conducted a post-hearing review of its prior withholdings, and released additional information. (See Def.'s Suppl. Br. at 8 (explaining that the agency released Document 3 in its entirety as a result of this re-review); see also Def.'s Resp. to Pl.'s Status Report, ECF No. 43, at 2.) The agency also expressly reaffirmed its decision to redact information from Document 9-a document titled “the CIA National Security Classification Guide”-under the National Security Act, on the grounds that the redacted information “identifies a different CIA component whose name and purpose have not been previously identified.” (Def.'s Suppl. Br. at 7; see also Id. (“The name of this entity would reveal the methods [CIA] uses in accomplishing its mission.” (internal quotation marks omitted)).) And the agency reaffirmed its decision to withhold Document 14 in full pursuant to the National Security Act, because that document “consists of correspondence records with a web services company” and “describes a particular intelligence collection source and method” that the CIA uses. (Id. at 6.)[12] The agency released some portions of Document 13, which it had previously withheld in full, but otherwise reaffirmed its decision to withhold the remaining portions of that document based on Exemption 3. (See Id. at 7.)[13]

         Ultimately, then, the summary judgment arguments that remain viable for present purposes involve disputes about (1) the adequacy of the CIA's search for responsive records with respect regard to Counts 2 and 5 of the Amended Complaint; (2) the CIA's invocation of FOIA Exemption 3 in regard to Counts 4 and 5, with respect to Vaughn Index Documents 9, 13, and 14; and (3) the CIA's contention, in regard to Count 7, that this Court lacks jurisdiction over MuckRock's claim that the agency employs a “per se” email policy, because MuckRock has failed to demonstrate that the CIA has any such policy, and in fact, the agency proceeded to process MuckRock's request for emails in this very case. These are the issues that the instant Memorandum Opinion addresses.

         II. LEGAL STANDARDS

         A. Summary Judgment in FOIA Cases (Generally)

         “FOIA cases typically and appropriately are decided on motions for summary judgment.” Judicial Watch, Inc. v. Dep't of the Navy, 25 F.Supp.3d 131, 136 (D.D.C. 2014) (quoting Defenders of Wildlife v. U.S. Border Patrol, 623 F.Supp.2d 83, 87 (D.D.C. 2009)). Rule 56 of the Federal Rules of Civil Procedure requires that a court grant a motion for summary judgment where the pleadings, disclosure materials on file, and affidavits “show[] that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see Judicial Watch, 25 F.Supp.3d at 136 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986)). In the FOIA context, a district court conducts a de novo review of the record when evaluating a motion for summary judgment, and the responding federal agency bears the burden of proving that it has complied with its obligations under the FOIA. See 5 U.S.C. § 552(a)(4)(B); In Def. of Animals v. Nat'l Insts. of Health, 543 F.Supp.2d 83, 92-93 (D.D.C. 2008). The court must analyze all underlying facts and inferences in the light most favorable to the FOIA requester, see Willis v. Dep't of Justice, 581 F.Supp.2d 57, 65 (D.D.C. 2008), and it may grant summary judgment to an agency only after the agency establishes that it has “fully discharged its [FOIA] obligations[, ]” Moore v. Aspin, 916 F.Supp. 32, 35 (D.D.C. 1996).

         An award of summary judgment based solely upon the information provided in affidavits is appropriate only if the affidavits 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.” Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). Not every FOIA case can be resolved on an agency motion for summary judgment that is supported by affidavits, however, and under certain limited circumstances, competing affidavits may preclude the entry of summary judgment. See Scudder v. CIA, 25 F.Supp.3d 19, 28-29 (D.D.C. 2014) (citing Niagara Mohawk Power Corp. v. U.S. Dep't of Energy, 169 F.3d 16, 18-19 (D.C. Cir. 1999); Wash. Post Co. v. U.S. Dep't of Health & Human Servs., 865 F.2d 320, 325-26 (D.C. Cir. 1989)).

         B. The Adequacy Of An Agency's Search For Records

         When a plaintiff challenges the adequacy of an agency's search for records responsive to a FOIA request, the court applies a reasonableness test, and it may grant summary judgment to the agency based on information provided in “[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.” Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 326 (D.C. Cir. 1999); see also Campbell v. Dep't of Justice, 164 F.3d 20, 27 (D.C. Cir. 1998) (highlighting the “reasonableness” standard). Such agency affidavits attesting to a reasonable search “are afforded a presumption of good faith, ” and “can be rebutted only ‘with evidence that the ...


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