Leopold v. DOJ, No. 14-00168, 2015 U.S. Dist. LEXIS 105601 (D.D.C. Aug. 12, 2015) (Mehta, J.)

Leopold v. DOJ, No. 14-00168, 2015 U.S. Dist. LEXIS 105601 (D.D.C. Aug. 12, 2015) (Mehta, J.)

Re: Request for records concerning Anwar al-Aulaqi

Disposition: Granting in part and denying in part defendant's motion for summary judgment; granting in part and denying in part plaintiff's motion for summary judgment

• Litigation Considerations, Adequacy of Search & Discovery:  The court holds that "[a]lthough [defendant's] Declaration contained errors, those errors are not indicative of bad faith."  "Mistakes alone do not imply bad faith."  "The Supplemental [defendant] Declaration addresses, to the court's satisfaction, the discrepancies between OIP's internal records and the initial declaration."  "It acknowledges the errors made, explains why the internal records provide an incomplete picture of OIP's process, and offers additional details regarding the search."  "The court also denies Plaintiff's request for discovery."
   
• Procedural Requirements, Searching for Responsive Records:  First, "the court concludes that DOJ's interpretation of 'Obama administration' as consisting only of members of the Executive Office of the President—at least in the context presented here—is too limited."  "The natural meaning of the term 'administration,' when referring to a U.S. President's administration, encompasses more than officials in the Executive Office of the President."  "At a minimum, it includes other high-level cabinet and agency officials."  Second, "the court finds that DOJ's search of OLA was reasonably calculated to locate responsive records."  The court explains that "DOJ did not ignore leads when identifying possible custodians within OLA."  "Rather, OIP 'continually reassess[ed]' its searches based on input from DOJ personnel."  "Although Plaintiff is correct that certain OLA staffers whose records were not searched did appear on produced emails about drones . . . those staffers were excluded as possible custodians only after extensive discussions with knowledgeable OLA personnel."  Last, "the court finds that Defendant's use of the search terms provided by Plaintiff, and no additional terms, was both reasonable and adequate."  The court explains that "[a]n agency presented with a FOIA request which expressly prescribes a set of search terms—as Plaintiff's request did here—ordinarily is not required to conceive of additional search terms that might produce responsive documents."
   
• Waiver:  "[T]he court rejects Plaintiff's claim of waiver and turns next to the validity of the exemptions."  The court considers the declaration of "the Chief of the Litigation Support Unit of the CIA" which "states that the information redacted from the White Paper 'goes beyond what has been publicly disclosed.'"  "The court finds these statements—supported by the Classified [CIA] Declaration and the court's in camera review of the White Paper, and with nothing in the record or from related cases to the contrary—to be accurate."
   
• Exemption 1:  The court first explains that, "[a]s noted, [it] has reviewed both the public and the non-public [CIA] Declarations and conducted an in camera review of the White Paper."  "As to the procedural requirements of E.O. 13,526, the court is satisfied with [the CIA's] assertion that 'the documents are properly marked in accordance with section 1.6 of the Executive Order.'"  "Additionally, because [the Chief of the Litigation Support Unit of the CIA] holds original classification authority, and has determined that the document in question is currently and properly classified, the derivative classification requirements of E.O. 13,526 § 2.1 are irrelevant to this case."  "As to the substantive elements of E.O. 13,526, the court concludes that most, but not all, of the redactions are proper."  "[T]he court does not agree that the White Paper is properly redacted in every respect."  "Several redacted passages contain nothing more than legal analysis that does not in any way reference or pertain to any classified information."  "The court has set forth in the attached Appendix the redacted portions of the White Paper that do not fall within Exemption 1 (or Exemption 3) and thus must be disclosed to Plaintiff."
   
• Exemption 3:  "The court . . . concurs with DOJ's invocation of Exemption 3."  The court relates that "[d]efendant relies upon two statutes to justify Exemption 3 in this case: Section 102A(i)(1) of the National Security Act of 1947, . . . which provides that the Director of National Intelligence 'shall protect intelligence sources and methods from unauthorized disclosure,' . . . and Section 6 of the Central Intelligence Agency Act of 1949, . . . which protects from disclosure information that would reveal the 'organization, functions, names, official titles, salaries, or numbers of personnel employed by the [CIA].'"  "Both statutes have long qualified as proper justification for invoking Exemption 3."  The court relates that "[p]age 11 of the White Paper contains a single redaction premised solely on Exemption 3."  "The court has reviewed that redaction and, affording the proper deference to the agency, finds that the Central Intelligence Agency Act warrants its nondisclosure."