James Madison Project v. DOJ, No. 15-1307, 2016 WL 5314231 (D.D.C. Sept. 22, 2016) (Collyer, J.)

James Madison Project v. DOJ, No. 15-1307, 2016 WL 5314231 (D.D.C. Sept. 22, 2016) (Collyer, J.)

Re: Request for records concerning book "'Easy Day: The Firsthand Account of the Mission that Killed Osama Biden Laden [sic].'"

Disposition: Granting in part and denying in part defendants' motion for summary judgment; denying plaintiff's motion for leave to file amended complaint

• Litigation Considerations, Pleadings: "The Court finds that Plaintiff's request should be deemed a motion to supplement the Complaint as the additions pertain to events 'that happened after the date of the pleading to be supplemented.'" "Although leave should be freely granted, the Court finds leave to supplement is not proper here because there has been undue delay and further delay would prejudice Defendants, who have already spent considerable time and effort briefing summary judgment on the issues presented in this case." The court explains that "[p]laintiff failed to submit renewed FOIA requests or move to amend the Complaint until after summary judgment briefing had begun and its opposition was due[.]" Therefore, the court finds that "[p]laintiff's motion for leave to amend the Complaint will be denied."
   
• Litigation Considerations, Mootness and Other Grounds for Dismissal: "Given Plaintiff's acceptance of the adequacy of DIA's search and that the search identified only two records that originated elsewhere and were referred elsewhere, the Court will dismiss DIA."
   
• Litigation Considerations, Exhaustion of Administrative Remedies: "[T]he Court finds that EOUSA has demonstrated that it responded to Plaintiff's No Easy Day FOIA request, that it searched the appropriate Office of the United States Attorney, and located no records." "Although Plaintiff counters that it never received EOUSA's letter and therefore never had an obligation to appeal, it proffers no argument here that the search itself was inadequate." The court finds that "[p]laintiff failed to timely appeal and therefore failed to exhaust administrative remedies." "The Court will dismiss EOUSA as a defendant here."
   
• Litigation Considerations, Discovery: "As to Navy, which swears it can find no record of Plaintiff's 2014 No Easy Day FOIA request, this Court is not persuaded by Plaintiff's arguments that discovery is necessary[.]" The court explains that "[p]laintiff's evidence here shows only that it 'transmitted' some fax to Navy on July 30, 2013 that was titled 'FOIA Request.'" The court finds that "[t]he fax confirmation page is not sufficient evidence to counter sworn evidence that Navy has no record of receiving the No Easy Day FOIA request at issue."
   
• Litigation Considerations, Adequacy of Search: The court holds that, "[b]ased on the presumption of good faith attributable to [defendant's] Declaration and Plaintiff's lack of specific claims regarding the inadequacy of the search, the Court finds that the Civil Division conducted an adequate search." The court relates that the "Civil Division's declaration avers with respect to [the requests at issue] that it identified the 'attorneys most likely to have [responsive] records,' contacted those individuals, and collected and reviewed the records identified as responsive to the requests."
  
  Similarly, "[b]ased on review of the CIA declaration and the presumption of good faith, the Court finds that a search 'reasonably calculated to uncover all relevant documents' was conducted."
   
• Exemptions 6 & 7(C), The "Glomar" Response: The court finds that "[a third party mentioned in the request's] privacy interests in protecting his law enforcement records from disclosure to third parties is not overcome by any public interest and the Civil Division properly withheld records related to [certain] requests . . . under Exemptions 6 and 7(C)." Specifically, the court finds that, "[d]espite Plaintiff's argument that [the third party's] privacy interests are diminished due to the fact that some information has been publically reported, the D.C. Circuit [has] found . . . that 'a person's privacy interest in law enforcement records that name him is not diminished by the fact that the events they describe were once a matter of public record.'" 
  
  However, the court rejects "DoD's Exemption 6 argument[.]" "The Court does not disagree that Exemption 6 may permit DoD to withhold personally identifying information of its junior personnel, but a categorical refusal to search is not sufficient." "DoD does not argue that all documents responsive to Plaintiff's No Easy Day FOIA request would contain personally identifying information of DoD personnel and in fact, without searching, DoD cannot aver that any responsive document contains such information."
   
• Exemption 5, Deliberative Process Privilege, Attorney Work-Product Privilege, Attorney-Client Privilege: "The Court finds this explanation reasonable and credible to explain why the Civil Division did not provide Plaintiff with the numbers of records identified on a topic-by-topic basis, which would usually be the norm in responding to a FOIA request." "Having asked for records concerning three separate issues – legal analyses and assessments of how much of No Easy Day remained classified; how much damage or harm might result to the U.S. as a result; and how vulnerable to suit was the book's publisher – the number of records individually responsive to each request could distinctly reveal the emphases (or lack thereof) given to each topic during the lawyers' analyses and assessments."
  
  However, "[t]he Court finds DoD's categorical use of Exemption 5 inappropriate." "Although Plaintiff's requests seek '[l]egal analyses' and 'assessments,' DoD cannot know, without searching, whether some of its responsive records may contain segregable, non-exempt information and DoD has not articulated why 'it can neither confirm nor deny the existence of responsive records,' as required in a Glomar response."
  
  Additionally, the court holds that "CIA has properly withheld records under Exemption 5." The court relates that CIA's "declaration specifically states 'CIA invoked the deliberative process privilege to withhold draft versions of various memoranda, letters, charts and other documents which contain comments, or tracked changes, made in connection with inter and intra-agency pre-decisional discussions.'" The court finds that "[t]he declaration is extremely clear that the records are drafts used in predecisional discussions; draft records have routinely been protected from FOIA using the deliberative process privilege."
   
• Litigation Considerations, "Reasonably Segregable" Requirements: "The Court has reviewed the Civil Division's declaration and finds that it adequately explains that no portions of the records were segregable." Similarly, "[t]he Court has reviewed CIA's declaration and the submission adequately explains that after 'a careful review of the documents, following a line-by-line review of each' none of the responsive records contained 'any non-exempt, reasonably segregable material.'"
   
• Exemption 1: The court holds that "CIA has made an affirmative showing that: (1) all of the withheld records were classified by . . . an original classification authority, as TOP SECRET, SECRET, or CONFIDENTIAL; (2) all of the withheld records are owned, produced, or controlled by the United States Government; and (3) that disclosure of the withheld records could reasonably be expected to result in damage to national security." Additionally, the court finds that "[defendant] cannot be expected to detail the specific classified information contained in the responsive records, as that would nullify the need to withhold the records."
   
• Exemption 3: "[T]he Court finds CIA has adequately withheld records under Exemption 3." The court relates that "CIA withheld certain records in compliance with the Central Intelligence Agency Act of 1949 . . . and the National Security Act." Regarding the withholdings made in accordance with the CIA Act, the court finds that "CIA specifically indicates that the information being withheld concerns the organization, names, and titles of personnel, which is material that has consistently been permitted to be withheld." Regarding the withholdings made in accordance with the NSA Act, the court finds that defendant "specifically states that it is invoking the NSA Act 'to withhold information that would reveal intelligence sources and methods.'"
   
• Exemptions 6 & 7(C): The court finds that "[p]laintiff has failed to show that the public interest outweighs [a third party specifically mentioned in the request's] privacy interests (or anyone else's) in the protection of these records." Therefore, the court finds that "CIA has properly withheld records under Exemptions 6 and 7(C)."
   
• Exemption 7(A): The court finds that, while "no records were withheld solely on the basis of Exemption 7(A)" and "the category of records withheld are those related to the No Easy Day classified information investigation[,]" "CIA failed . . . to identify why the disclosure of the specific category of records would interfere with enforcement proceedings and instead, as Plaintiff argues, relied on a mere conclusion that 'this information, if released, would reasonably be expected to interfere and cause harm in any pending or reasonably anticipated enforcement proceeding.'"
   
• Exemption 7(E): "The Court . . . finds that CIA has met the 'relatively low bar' for Exemption 7(E)." "CIA states that the records withheld contain information regarding specific CIA investigative techniques and that knowledge of those techniques could allow individuals to circumvent detection and, therefore, circumvent the law." "The Court finds that explanation adequate to justify withholding records under Exemption 7(E)."