Heritage Found. v. CIA, No. 23-3810, 2025 WL 485406 (D.D.C. Feb. 13, 2025) (Kelly, J.)

Heritage Found. v. CIA, No. 23-3810, 2025 WL 485406 (D.D.C. Feb. 13, 2025) (Kelly, J.)

Re: Request for records concerning CIA whistleblower who came forward and claimed that several members of the CIA’s investigatory team were paid off to switch their assessment from lab theory to natural-transmission theory

Disposition:  Granting defendant’s motion for judgment on the pleadings

• Procedural Requirements, Expedited Processing: The court relates that “[t]he agency says that Plaintiffs failed to comply with the statutory requirement that the requester certify that the ‘basis for claiming compelling need is “true and correct to the best of such person’s knowledge and belief.”’”  The court finds that FOIA requires a certification: “‘A demonstration of compelling need by a person making a request for expedited processing shall be made by a statement certified by such person to be true and correct to the best of such person's knowledge and belief.’”  “Part of establishing a ‘compelling need,’ then, is doing so with the statutorily mandated certification.”  “And because FOIA ‘does not authorize an agency to offer its own definition of “compelling need,”’ an agency cannot tweak that definition either ‘through case-specific determinations or through regulations.’” “This prohibition on changing the definition of ‘compelling need’ also prevents agencies from doing away with the certification requirement.”  “Congress has mandated that certification for any request seeking expedited processing based on a compelling need, even if – as is true of the CIA – the agency does not repeat that requirement in its regulations.”  “Plaintiffs did not satisfy the certification requirement when they requested expedited processing based on compelling need, so they were not entitled to that processing.”  “Nowhere in the complaint do Plaintiffs claim to have certified that their compelling-need statement was ‘true and correct to the best of [their] knowledge and belief.’” “Nor could they have alleged that; Plaintiffs’ FOIA request, attached to the complaint, shows that they did not make the required certification.”  “In this way, Plaintiffs’ ‘request for expedited processing’ is deficient under FOIA and thus ‘could be denied strictly on that basis.’”
  
  “Plaintiffs offer no reason for failing to heed this statutory command.”  “Instead, they contend that because the CIA did not base its denial on the certification requirement at the administrative level, the agency cannot defend its decision on that ground now.”  “Plaintiffs also suggest that their non-compliance should be excused because ‘this is not a case where the certification requirement “matters.”’” “And finally, Plaintiffs note that they ‘renewed their expedited request with Defendant’s demanded “magic words” certification’ – that is, FOIA’s statutory requirement – after the CIA moved for judgment on the pleadings, so ‘this is much ado about nothing.’”  “But none of these arguments moves the needle on the narrow issue relevant here:  whether the CIA has shown as a matter of law that Plaintiffs cannot prevail on their claim, as alleged in the operative complaint, that the agency wrongfully denied their request for expedited processing.”  “More fundamentally, Plaintiffs misunderstand how the Court reviews denials of expedited processing.”  “That review is de novo . . . meaning that the Court makes ‘a fresh, independent determination of “the matter” at stake’ by ‘put[ting] itself in the agency’s place’ and ‘mak[ing] anew the same judgment earlier made by the agency.’”  And regarding its focus on the record, the court explains that “the Court must evaluate that decision in this way.” “FOIA requires courts to review denials of expedited-processing requests ‘based on the record before the agency at the time of the determination.’”
  
  “Plaintiffs also argue that ‘the certification requirement’ neither ‘matters’ nor ‘does actual work’ in this case.”  “Without saying so explicitly, they seem to suggest that the Court should ignore Congress’s requirement because it appears unimportant to them.”  “That is of course a non-starter.”  “Courts ‘must presume that [the] legislature says in a statute what it means and means in a statute what it says there,’ and Congress in no uncertain terms required a specific certification for expedition requests based on compelling need.”  “In any event, requiring the requester to certify that his statement of compelling need is true and correct to the best of his knowledge and belief makes ample sense.”  “These requests, after all, are requests to jump the line of earlier-filed FOIA requests that typically would receive priority.”  “So the certification requirement tempers (or at least tries to temper) overzealous requesters who might exaggerate the urgency of expedition and, in doing so, harm other FOIA requesters.”  “And applying that statutory requirement across the board – rather than, as Plaintiffs seem to prefer, only to cases involving ‘non-public not otherwise verifiable facts’ – is a choice for Congress, not the Court.”
  
  “In short, Plaintiffs’ complaint challenged the CIA’s denial of its original request for expedited processing.”  “The CIA moved for judgment on the pleadings because it believed that, based on the complaint and answer, this denial was lawful.” “Plaintiffs’ post-pleadings declaration is not relevant to the lawfulness of that denial, so the Court will not consider it and will instead maintain the Rule 12(c) character of the CIA’s motion.”  “As noted above, however, Plaintiffs’ other claims for relief – including their claim that any relevant records have been wrongfully withheld – are unaffected by this ruling and will proceed.”  “And of course, nothing prevents Plaintiffs from seeking leave to amend or supplement their complaint to the extent they wish to challenge the CIA’s handling of their renewed expedition request.”