MEMORANDUM OPINION
BERYL
A. HOWELL CHIEF JUDGE
This
action was commenced over five years ago by the plaintiffs,
National Security Counselors (“NSC”), and three
individuals (collectively, the “plaintiffs”),
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,
and five other statutes, and has already engendered three
rounds of dispositive motions as well as consideration of a
motion for class certification and a motion for
reconsideration.[1] Only one claim, Count Sixteen, is
unresolved out of the original twenty-six asserted in the
First Amended Complaint (“FAC”), ECF No. 9. Now
pending before the Court are the defendants' Renewed
Motion for Summary Judgment on Count Sixteen
(“Defs.' Mot.”), ECF No. 105, and the
plaintiffs' Cross-Motion for Summary Judgment and
Discovery (“Pls.' Cross-Mot.”), ECF No. 108.
For the reasons set out below, the defendants' motion is
granted and the plaintiffs' motion is denied.
I.
BACKGROUND
The
factual and procedural history of this case is fully
described in prior opinions issued in this case and, thus,
the background summary here is limited to that relevant to
Count Sixteen, the only count remaining at issue. See
Nat'l Sec. Counselors v. CIA (“NSC
I”), 316 F.R.D. 5, 8 (D.D.C. 2012) (denying
plaintiffs' motion for class certification and
pre-certification discovery); Nat'l Sec. Counselors
v. CIA (“NSC II”), 931 F.Supp.2d
77, 112 (D.D.C. 2013) (dismissing, on CIA's partial
motion to dismiss, Counts One, Five, Six, Fifteen, Nineteen,
Twenty-Five, and Twenty-Six, and denying defendants'
motion to dismiss Counts Twenty-One and Twenty-Two);
Memorandum and Order, dated June 13, 2013 (“NSC
III”) at 9, ECF No. 60 (denying plaintiffs'
motion for partial reconsideration); Nat'l Sec.
Counselors v. CIA (“NSC IV”), No.
12-cv-284, 2016 WL 6684182, at *35 (D.D.C. Nov. 14, 2016)
(granting defendants' motion for summary judgment, in
whole or in part, on Counts Two, Four, Seven, Nine, Ten,
Eleven, Twenty, Twenty-One, and Twenty-Three, and denying
motion as to, inter alia, Count Sixteen).
Thereafter, the parties requested a summary judgment briefing
schedule regarding only Count Sixteen. See Jt.
Status Report (Apr. 28, 2017) at 1, ECF No. 104.
Count
Sixteen claims that the CIA failed to comply with its FOIA
obligations in responding to NSC's FOIA request number
F-2011-01679, submitted on June 20, 2011, “for records
pertaining to the search tools and indices available to the
components in the Director of the Central Intelligence Agency
Area (‘DCIA Area') for conducting searches of their
respective records in response to FOIA requests.” FAC
¶ 140. The request indicated that responsive records
would include “(1) Records which describe the
search tools and indices” and “(2) The actual
contents of the indices.” Defs.' First Renewed Mot.
Summ. J. (“Defs.' First Renewed Mot.”), Ex.
3, Decl. of Martha M. Lutz, Chief of Litigation Support Unit,
CIA (“Lutz Decl.”) ¶ 88, ECF No. 74-4
(emphasis in original) (quoting Lutz Decl., Ex. TT, Letter
from Kel McClanahan to Susan Viscuso, CIA, dated June 20,
2011 (“FOIA Request”) at 113, ECF No. 74-5). The
plaintiffs subsequently clarified, in the course of
litigation, that the request did not encompass
“standard training and help documents for programs like
Microsoft Outlook, Lotus Notes, or Windows.” Defs.'
Mot., Ex. 1, Defs.' Stmt. of Undisputed Facts
(“Defs.' SMF”) ¶ 12, ECF No.
105-1.[2]
As
discussed in NSC IV, the CIA's initial search
was described as enlisting “individuals with personal
knowledge of the search tool and indices used by
Director's Area” to “search[ ] the Area's
electronic records systems and conduct[ ] a manual search for
records potentially responsive to NSC's request.”
NSC IV, 2016 WL 6684182, at *15. Those searches
“yielded two responsive documents, one of which was
released to NSC in redacted form and the other of which was
withheld in full.” Id. (citing Lutz Decl.
¶¶ 93-94). Finding that the CIA “provided
little information regarding ‘what parameters were used
to accomplish the search, i.e., whether the CIA
searched for the indices themselves or what search terms the
CIA used to identify responsive records, '”
id. at *16 (quoting NSC II, 960 F.Supp.2d
at 152), summary judgment was denied on Count Sixteen
“with respect to the adequacy of the CIA's search
for documents responsive to FOIA request F-2011-01679,
” id. at *35. The Court noted, however, that
“further explication by the CIA may demonstrate that
the search was, indeed, adequate, such that summary judgment
for the CIA is appropriate.” Id. at *17. In
addition, summary judgment was denied to the CIA for its
withholdings, in Documents 555 and 556, of “information
regarding internal databases and how personnel use those
databases, ” id. at *23 (internal quotation
marks omitted), under Exemption 3 and the CIA Act, since
“the agency's exclusive reliance on the CIA Act to
withhold material that does not pertain to CIA personnel
[wa]s misplaced, ” id. at *24. At the same
time, summary judgment was granted to the CIA “in all
other respects” on Count Sixteen. Id. at *35.
The CIA
subsequently conducted a supplemental search for documents
responsive to the FOIA request at issue in Count Sixteen.
See Jt. Status Reports, ECF Nos. 101, 104. The
CIA's original search relevant to Count Sixteen
acknowledged the FOIA request's explicit reference to the
“DCIA Area” and therefore involved individuals
with personal knowledge of the search tools and indices used
in the DCIA Area to search the DCIA Area's electronic
records systems and to conduct a manual search for records
potentially responsive to NSC's request. NSC IV,
2016 WL 6684182, at *15-16. This search yielded two
responsive documents, C05848005 and C05848006, “one of
which was released to NSC in redacted form and the other of
which was withheld in full.” Id. at *15;
see also Defs.' SMF, Ex. A, Decl. of Antoinette
B. Shiner, Info. Review Officer, Litigation Info. Review
Office, CIA (“Shiner Decl.”) ¶ 7, ECF No.
105-2. In addition, the CIA located three records responsive
to a nearly identical request directed to the agency's
Information Management Service (“IMS”), in which
office “experienced IMS information management
professionals transmit copies of the requests to the CIA
directorate(s) they determine might reasonably be expected to
possess records that are subject to the FOIA and responsive
to a particular request.” Defs.' SMF ¶¶
3, 15.
For the
supplemental search conducted after NSC IV, the CIA
focused on fourteen offices that, prior to an agency
reorganization in 2015, had made up the DCIA Area.
Id. ¶ 16. These offices either searched their
databases using key words, such as “guides, ”
“search guides, ” and “reference guides,
” or conducted “manual searches for database
manuals and user guides” for responsive records.
Id. ¶ 20; see also Shiner Decl.
¶¶ 13-21. These supplemental searches yielded ten
documents, in addition to the five documents located in prior
searches. Defs.' SMF ¶ 21; Shiner Decl. ¶ 17.
Of the ten newly located documents, the CIA released one
document in full; withheld five documents in part (Docs. 630,
631, 632, 633, and 634); and withheld four documents in full
(635, 636, 637, and 638), pursuant to Exemptions 1, 3, 5, 6,
and 7(E). See Shiner Decl. ¶ 17; Defs.'
Reply Supp. Renewed Mot. Summ. J. & Opp'n Pls.'
Renewed Cross-Mot. Summ. J. (“Defs.' Reply”),
Ex. B, Suppl. Vaughn Index at 1-4, ECF No. 112-1.
The
plaintiffs continue to challenge the adequacy of the search
and, while not disputing the withholdings under Exemption 1;
Exemption 3, pursuant to the Central Intelligence Agency Act;
or Exemption 6, see Defs.' SMF ¶ 23 (citing
Defs.' SMF, Ex. C, Email from Kel McClanahan to CIA,
dated May 4, 2017, at 1, ECF No. 105-2); Pls.' Mem. Supp.
Renewed Cross-Mot. Summ. J. (“Pls.' Mem.”) at
7, ECF No. 108, the plaintiffs again contest the withholding
of eight documents under Exemption 3, pursuant to the
National Security Act (Docs. 630, 631, 632, 633, 634, 635,
636, and 638); one document under Exemption 5 (Doc. 637); and
three documents under Exemption (7)(E) (Docs. 635, 636, and
638), see Pls.' Mem. at 7; Suppl.
Vaughn Index at 1-4.[3]
II.
LEGAL STANDARD
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). “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.'” Judicial Watch,
Inc. v. U.S. Secret Serv., 726 F.3d 208, 215 (D.C. Cir.
2013) (internal quotation marks and alteration omitted)
(quoting Consumer Fed'n of Am. v. U.S. Dep't of
Agric., 455 F.3d 283, 287 (D.C. Cir. 2006)). Indeed, the
D.C. Circuit has observed that “the vast majority of
FOIA cases can be resolved on summary judgment.”
Brayton v. Office of the 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) (quoting U.S. 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) (internal quotation marks and alteration omitted)
(quoting Critical Mass. Energy Project v. Nuclear
Regulatory Comm'n, 975 F.2d 871, 872 (D.C. Cir.
1992) (en banc)), 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. Dep't of Navy, 562 U.S. 562, 565
(2011) (internal quotation marks and citation omitted);
see also 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); Pub. Citizen, Inc. v. Office of
Mgmt. & Budget, 598 F.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.'” Pub. Citizen Health Research
Grp. v. Food & Drug Admin., 185 F.3d 898, 904 (D.C.
Cir. 1999) (quoting Niagara Mohawk Power Corp. v. U.S.
Dep't of Energy, 169 F.3d 16, 18 (D.C. Cir. 1999));
see also U.S. Dep't of Justice v. Landano, 508
U.S. 165, 171 (1993) (noting that “[t]he Government
bears the burden of establishing that the exemption
applies”); Fed. Open Mkt. Comm. of Fed. Reserve
Sys. v. Merrill, 443 U.S. 340, 352 (1979) (finding that
the agency invoking an exemption bears the burden “to
establish that the requested information is exempt”);
Elec. Frontier Found. v. U.S. Dep't of Justice,
739 F.3d 1, 7 (D.C. Cir. 2014). 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 the “burden upon
the requester is merely ‘to establish the absence of
material factual issues before a summary disposition of the
case could permissibly occur.'” Pub. Citizen
Health Research Grp., 185 F.3d at 904-05 (alterations in
original) (quoting Nat'l Ass'n of Gov't Emps.
v. Campbell, 593 F.2d 1023, 1027 (D.C. Cir.
1978)).[4]
An
agency may carry its burden of showing an exemption was
properly invoked 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 and
provided sufficient information as to the applicability of an
exemption to enable the adversary system to
operate.[5] See Judicial Watch, 726 F.3d at
215 (“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.'” (internal quotation
marks and alteration omitted) (quoting Consumer
Fed'n, 455 F.3d at 287)); CREW, 746 F.3d at
1088 (noting that an 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))); Oglesby
v. U.S. Dep't of Army, 79 F.3d 1172, 1176 (D.C. Cir.
1996) (instructing that an agency's description
“should reveal as much detail as possible as to the
nature of the document, without actually disclosing
information that deserves protection, ” which
requirement “serves the purpose of providing the
requestor with a realistic opportunity to challenge the
agency's decision”). “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 ACLU 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). District
courts must “determine de novo whether
nondisclosure 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.
Dep't of Justice, 140 F.3d 1077, 1080 (D.C. Cir.
1998).
In
addition, the court has an “affirmative duty” to
consider whether the agency has produced all segregable,
nonexempt 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))); see
also 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.”); 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.”).
III.
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