Freedom Watch v. NSA, No. 14-1431, 2016 U.S. Dist. LEXIS 88123 (D.D.C. July 6, 2016) (Leon, J.)

Freedom Watch v. NSA, No. 14-1431, 2016 U.S. Dist. LEXIS 88123 (D.D.C. July 6, 2016) (Leon, J.)

Re: Request for records concerning shoot-down of a military helicopter in Afghanistan

Disposition: Granting defendant's motion for summary judgment

• Litigation Considerations, Adequacy of Search:  The court "conclude[s] that CIA's and DoD's searches were appropriate."  The court finds that "[d]efendants have demonstrated that they met their burden through the 'relatively detailed and non-conclusory' affidavits of agency officials" which "identified the offices likely to have responsive records, the means used to search therein, and how they searched for both electronic and paper records."  Responding to plaintiff's argument "that it is 'common sense that documents clearly exist' beyond those produced[,]" the court finds that "an 'agency's failure to turn up a particular document, or mere speculation that as yet uncovered documents might exist, does not undermine the determination that the agency conducted an adequate search for the requested records.'"  Additionally, the court finds that "[p]laintiff's only argument regarding the search methods employed – that defendants should not have relied on 'keyword searches[]' – is unsupported and unpersuasive."  Finally, the court relates that "plaintiff effectively acknowledges that the agencies may have satisfied their FOIA obligations under controlling case law, but invites the Court to 'modify such recent precedents and return to a faithful interpretation' of FOIA."  "Unfortunately for plaintiff, this is an invitation [the court] neither can, nor desire[s], to accept."
   
• Exemption 1:  The court holds that "DoD properly withheld [a] small amount of material pursuant to Exemption 1."  The court finds that "[DoD] explains that an Original Classification Authority . . . as authorized by Section 1.1 of Executive Order ('EO') 13526, has 'found information was properly classified under either section 1.4(a), which permits classification of military plans and operations, or 1.4(c), which permits classification of information pertaining to, reflecting, or constituting' intelligence-related matters."  "Moreover, all of the Exemption 1 redacted material 'is classified at the SECRET level, and so its release would . . . reasonably be expected to cause serious damage to national security,' consistent with Section 1.2 of EO 13526."
   
• Exemption 3:  The court holds that "CIA and DoD properly invoked Exemption 3" in conjunction with "three qualifying statutes: 10 U.S.C. § 130b, 10 U.S.C. § 424, and 50 U.S.C. § 3507."  The court explains that "Section 130b authorizes withholding 'personally identifying information regarding . . . any member of the armed forces assigned to an overseas unit, a sensitive unit, or a routinely deployable unit.'"  "Section 424 authorizes withholding of sensitive information related to, inter alia, the Defense Intelligence Agency . . . and the 'number of persons employed by or assigned or detailed to [DIA] or [their] name[s] [or] official title[s] . . . .'"  "Section 6 of the CIA Act of 1949 as amended exempts the CIA from 'any other law[s] which require the publication or disclosure of the organization, functions, names, official titles, salaries, or numbers of personnel employed by the agency . . . .'"  The court finds that "[DoD] explains that Exemption 3 was applied only to withhold certain 'names or contact information' – as is clear from the context of the redactions – and only from those who 'serve in sensitive, overseas, or routinely deployable units' or those who 'work for DIA.'"  Additionally, the court finds that "[CIA] explains the withheld material constitutes 'the names and identifying information of CIA employees' in addition to information that potentially reveals authorship of a document 'resid[ing] on the CIA's internal network.'"
   
• Exemption 5, Deliberative Process Privilege:  The court holds that "DoD properly invoked Exemption 5" because "all material withheld pursuant to Exemption 5 involves DoD's decision-making about upcoming Congressional testimony by . . . a Principal Deputy Assistant Secretary of Defense, and [a] U.S. Air Force Colonel . . ., and fits comfortably within the exemption."  Regarding this material, the court finds that "the release thereof would compromise 'the ability of DoD personnel to provide candid advice to officials in anticipation of their testimony. . . .'"
   
• Exemption 6:  The court holds that "DoD properly withheld as well personal identifying information pursuant to Exemption 6."  The court relates that "[h]ere, the Exemption 6 withholdings of such personal identifying information are relatively narrow, as they are limited to the names and contact information of lower-ranking military and civilian personnel, and do not extend to their titles, the higher-level officials or personnel with whom they communicated, or the substantive information in the documents in which their names appear."
   
• Litigation Considerations, "Reasonably Segregable" Requirements:  The court holds that "defendants' declarations and the limited and precise nature of the withholdings sufficiently demonstrate CIA and DoD released all reasonably segregable material."  The court specifically highlights the fact that "DoD 'carefully reviewed' all responsive documents and 'determined that no segregation of meaningful information in the withheld documents can be made' beyond the redactions made" and also highlights "CIA's 'page-by-page, line-by-line review' of responsive documents."
   
• Litigation Considerations, Discovery:  The court holds that "[p]laintiff has failed to identify any basis for discovery in this lawsuit."  The court finds that "the declarations sufficiently demonstrate the adequacy of defendants' search and the propriety of their decision to withhold certain material pursuant to specified exemptions."  "Plaintiff's conclusory, self-serving, and unsigned declaration submitted by its Chairman and General Counsel is woefully inadequate to create a genuine dispute of fact to support discovery."