Freedom Watch, Inc. v. NSA, No. 12-01088, 2016 WL 7191558 (D.D.C. Dec. 12, 2016) (Cooper, J.)

Freedom Watch, Inc. v. NSA, No. 12-01088, 2016 WL 7191558 (D.D.C. Dec. 12, 2016) (Cooper, J.)

Re: Request for records concerning news article regarding classified government cyberattacks against Iranian nuclear program

Disposition: Granting defendant's motion for summary judgment; denying plaintiff's request for discovery

• Procedural Requirements, Searching for Responsive Records: The court holds that defendant's search was adequate. Responding to plaintiff's arguments, the court finds that "'FOIA expressly permit[s] automated searches.'" "And keyword searches in response to FOIA requests are routine."
   
• Exemption 5, Deliberative Process Privilege: "[T]he Court will reject [plaintiff's] conclusory assertion that the redacted documents should be produced in full." "The redacted documents are 'intra-agency e-mail messages that detail discussions between State officials regarding a briefing for an interview, including draft versions of the briefing.'" "Such information logically falls within an exemption meant to protect 'deliberations comprising part of a process by which governmental decisions and policies are formulated.'"
   
• Litigation Considerations: The court rejects plaintiff's argument "that a '[one-]page briefing paper must be disclosed or at least examined in camera.'" The court explains that "the document to which [plaintiff] refers was identified and withheld pursuant to a search that occurred more than three years ago, in connection with a previous summary judgment motion." The court relates that "[it] deemed that argument forfeited, since it had not been raised below." "Surely, if it was too late for the argument then, it is too late now."
   
• Litigation Considerations, Discovery: The court "den[ies] [plaintiff's] motion for discovery." The court rejects plaintiff's argument that "the fact that the Department continued to receive and identify potentially relevant documents after performing its initial search" undermines defendant's search. The court finds that "[w]hat this argument overlooks is the fact that most of the documents uncovered in the later stages of this litigation came to light because former employees, including Secretary Clinton, turned over documents to State that were not previously in the Department's possession." "In other words, State could not have reviewed them because State did not have them." "And even if a case could be made that the Executive Secretariat's files should have been searched more thoroughly in the first instance, 'mistakes do not imply bad faith.'" "'In fact, [an] agency's cooperative behavior of notifying the Court and plaintiff that it . . . discovered a mistake, if anything, shows good faith.'"