Freedom Watch, Inc. v. NSA, 783 F.3d 1340 (D.C. Cir. 2015) (Tatel, J.)

Freedom Watch, Inc. v. NSA, 783 F.3d 1340 (D.C. Cir. 2015) (Tatel, J.)

Re: Request for records concerning classified program to undermine Iran's nuclear program

Disposition: Remanding in part to supplement record; affirming district court's grant of defendant's motion for summary judgment

• Litigation Considerations, Adequacy of Search:  "Based on the government's representations, [the Court of Appeals for the D.C. Circuit] shall deny [plaintiff's] motion to supplement the record and remand to the district court to manage record development and oversee the search of the former Secretary's emails for records responsive to Freedom Watch's FOIA request."  The court relates that "[plaintiff] moved to supplement the record with news articles relating to the revelation that former Secretary of State Hillary Clinton, while leading the State Department, had maintained a private email account run on a private server."
   
• Litigation Considerations, Exhaustion of Administrative Remedies:  The court holds that "[a]s to the Glomar responses of NSA and CIA, the district court properly granted the agencies judgment on the pleadings because [plaintiff] failed to internally appeal the agencies' denials and thus to exhaust its administrative remedies before seeking judicial review."
   
• Exemption 1, Glomar:  The court holds that "[s]ummary judgment in favor of DoD was . . . proper because the agency supported its Glomar response with an uncontroverted declaration explaining 'the justifications for nondisclosure with reasonably specific detail.'"  "As the declaration explains, because [plaintiff] seeks documents concerning a leak of information about cyberattacks on Iran's nuclear facilities, '[a]cknowledging the existence or non-existence of records responsive to plaintiff's request could reveal whether the United States, and specifically DoD, conducts or has conducted cyber-attacks against Iran.'"  "In DoD's judgment, such a disclosure would 'cause damage to national security by providing insight into DoD's military and intelligence capabilities and interests,' . . . and [the court] accord[s] that judgment 'substantial weight.'"
   
• Litigation Considerations & Procedural Requirements, Searching for Responsive Records:  The court finds that "[plaintiff] never objected in the district court to the Department's use of key-word searches" and "'[i]t is well settled that issues and legal theories not asserted at the District Court level ordinarily will not be heard on appeal.'"  The court does state, however, that "not only does FOIA expressly permit automated searches . . . but State Department employees also manually searched files for responsive documents."

The court finds that "[plaintiff] likewise forfeited its challenge to the Department's withholding of the press-briefing memo."  "The Department invited [plaintiff] to file a surreply to 'address the documents produced as a result of [the Department's] supplemental search,' including the briefing memo, . . . but [plaintiff] failed to do so."

• Litigation Considerations, Discovery:  The court "see[s] no abuse of discretion in the district court's denial of [plaintiff's] request for additional discovery."