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National Security Counselors v. Central Intelligence Agency

United States District Court, District of Columbia

August 20, 2018

NATIONAL SECURITY COUNSELORS, et al., Plaintiffs,
v.
CENTRAL INTELLIGENCE AGENCY, et al., Defendants.

          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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