National Sec. Counselors v. CIA, Nos. 11-443, 11-444, 11-445, 2013 WL 4111616 (D.D.C. August 15, 2013) (Howell, J.)

Thursday, August 15, 2013
Re: Plaintiff's "challenges to: the withholding of specific information; the adequacy of the agencies' search efforts; the refusal to process FOIA requests; the refusal to produce responsive records in an electronic format; and certain policies or practices which the plaintiff claims are ongoing and systematic FOIA violations" Disposition: Granting in part and denying in part defendants' motions for summary judgment; granting in part and denying in part plaintiff's cross-motions for summary judgment; denying plaintiff's motion for sanctions; denying plaintiff's motion for leave to file an amended complaint
  • FOIA Requesters Assignment of Rights:  The court, "concludes that the categorical Assignment of Rights Policy constitutes a 'failure to abide by the terms of the FOIA.'"   Defendant has "a policy of not recognizing assignments."  The court first concludes that, "[defendant's] standing argument is unavailing now, just as it was unavailing in its motion to dismiss."  The court finds that defendant, "narrowly frames the plaintiff's injury as a delay in receiving information under the FOIA . . . but the court has already held that the plaintiff's injury is something different in kind: the inability to exercise the statutory rights validly assigned to it."  The court notes that, "'[t]he traditional test for assignability of a cause of action ... is whether the cause of action survives the assignor and passes to his or her personal representative; if it does, the cause of action is assignable.'"  Therefore, the court reasons that, "[s]ince the D.C. Circuit has held that FOIA claims survive death and can be transferred to a deceased requester's legal representative, it stands to reason that at least some FOIA requests are properly assignable, and thus a categorical policy of refusing to recognize assignments violates the FOIA."  The court notes that, "[t]he FOIA's silence regarding assignments, however, supports the plaintiff's position, if it supports either position at all," because, "''Congress is understood to legislate against a background of common-law adjudicatory principles.''"  The court also explains that, "[t]he assignability of FOIA requests is also consistent with the animating principle behind the FOIA, which is 'to increase the public's access to governmental information.'"  The court continues to state that, "[a]s to the 'requester-specific provisions' of the FOIA, [defendant] is correct to assert that certain rights or privileges conferred under the FOIA are non-assignable."  "For example, the right to (1) a public-interest fee waiver, (2) the expedited processing of a request, or (3) the release of information that implicates personal privacy, all are personal to a requester and thus cannot be assigned."  However, the court notes that, "plaintiff, however, does not contend that wholesale assignment is what the FOIA requires."  The court also explains that, "the assignment of a FOIA request would not add to the agency's burden in administering the requester-specific provisions of the statute, as compared to the submission of a new FOIA request: Both a new FOIA request and an assigned FOIA request would require de novo determinations regarding fee status, fee waivers, expedited processing, and the applicability of Exemptions 6 and 7(C)."  Similarly, the court states that"[a]s to [defendant's] complaint about needing to decide 'whether fees should be charged retroactively,' [a]gain, the administrative burdens between the two scenarios are identical."  The court notes that, "[i]t may be that refusing to recognize assignments would 'minimize[ ]' [defendant's] litigation risk by allowing the agency to restart the clock with a new FOIA request, rather than having to respond to the initial request within the statutory timeframe."  "Compliance with the statutory timeframe, however, is not an undue burden; it is a burden that Congress expects agencies to bear."  The court notes that the, "two examples provided by [defendant] with regard to attorney's fees do not come close to establishing any kind of 'undue burden' that would result from the recognition of assignments."  Moreover, the court notes that defendant, "does not explain how requiring [plaintiff] to file a new FOIA request would have resulted in no delay."
  • Procedural Requirement, Marking Documents:  The court finds that, "even according the 'substantial weight' due to [defendant's] declaration on the issue of technical feasibility, the court concludes that [defendant's] categorical Document–Level Exemption Policy constitutes a 'failure to abide by the terms of the FOIA.'"  The court concludes that, defendant, "must make a case-by-case determination regarding the technical feasibility of indicating a claimed exemption associated with a deletion 'at the place in the record where such deletion is made.'"
  • Procedural Requirements, Searching for Responsive Records:  The court addresses the adequacy of defendant's search in relation to each count of the proceeding.  First, the court determines that defendant, "has failed to meet its burden in this case [because defendant's] declaration does not state what parameters were used to accomplish the search, i.e., whether [defendant] searched for the indices themselves or what search terms [defendant] used to identify responsive records."  The court notes that, "[defendant's] declaration merely states in conclusory fashion that 'employees ... conducted an adequate search for records responsive to Plaintiff's request' by 'search[ing] electronically for responsive documents and manually search[ing] for independently known responsive documents.'"  The court also notes that, "plaintiff's arguments underscore the more fundamental deficiency in [defendant's] declaration, which is that [defendant] does not provide sufficient information for the court to conclude that its search methods were 'reasonably calculated to uncover all relevant documents.'"  The court further highlights defendant's similar failure to meet its burden in relation to another request by stating that defendant, "uses amorphous terms like 'relevant records systems' and 'all files reasonably likely to contain responsive materials,' without any explanation of how the agency determined which records systems and files were relevant or reasonably likely to contain responsive materials."  However, regarding yet another request, the court finds for defendant because, "plaintiff has not demonstrated that the three documents it seeks would in fact have been responsive to its FOIA request and defendant "had no obligation to continue searching its records systems based on a 'lead' provided by the requester several months after the agency had already completed its search efforts."  The court discusses a final request and finds for plaintiff reasoning that, "[i]n this regard, it is clear that, for example, when a FOIA requester 'seek[s] all of a certain set of documents' while also 'evincing a heightened interest in a specific subset thereof,' such a request 'is reasonably susceptible to the broader reading' of seeking the entire set of documents despite the fact that a specific subset of documents is named."
  • Procedural Requirements, Reasonable Description:  In relation of one request from plaintiff, the court finds that, "[i]n this case, [defendant] was justified in refusing to process the plaintiff's May 13, 2010 FOIA request because it did not 'reasonably describe[ ]' the records sought."  The court explains that, "[a]lthough the plaintiff provided 'guidelines' to describe the category of records it sought, those guidelines still left a significant amount of ambiguity about 'precisely what records [were] being requested.'"  The court explains by elaborating that, "[f]irst, the plaintiff's guideline asking for '[f]our reports/memoranda for each year (unless less were created that year) for individuals in each category of intelligence target,' . . . would require the agency to examine and sift through a larger body of records to ensure that only one report/memorandum from a given category were included from any given year."  "Second, the plaintiff's request asked [defendant] to provide '[r]easonable variety in the intelligence targets,' and also asked for 'a variety of the type of officials.'"  "This sort of request is inherently burdensome because it requires the agency to weigh whether the variety it has provided is 'reasonable' or not, which superimposes a layer of subjective analysis onto the agency's response effort which the FOIA does not require."  Similarly, in response to another request, the court agrees with defendant's "refus[al] to process the plaintiff's FOIA request that sought 'a copy of all [defendant] records pertaining to the IBM supercomputer 'Watson.'"  The court explains that, "plaintiff's February 26, 2011 FOIA request to [defendant] was overly broad because it would require [defendant] to 'search every office for any documents containing the word 'Watson'' because 'any component is equally likely to have responsive records.'"
  • Procedural Requirements "Agency Records":  The court holds that defendant was correct in "refus[ing] to process the plaintiff's request for 'a record that would indicate the ten individuals responsible for the most FOIA requests submitted (each) in Fiscal Years 2008, 2009, and 2010.'"  The court explains that, "[defendant] is correct that '[plaintiff's] argument ignores this court's decision' in contending that the production of an index is not the creation of a record, where that index had not been previously created and retained."  The court finds that, "plaintiff merely establishes that [defendant] is capable of creating the record that the plaintiff seeks."  "That showing, however, is insufficient to require the agency to produce such a record because that record is still not one 'that [defendant] has in fact chosen to create and retain.'"  Similarly, in response to another request, the court holds that, "'four documents' the plaintiff seeks are not documents [defendant] 'has in fact chosen to create and retain,'" and, therefore, defendant, "was not required to create such records in response to the plaintiff's FOIA request."
  • Procedural Requirements Format:  The court denies summary judgment to defendant regarding plaintiff's request for responsive records to be provided in an electronic format.  The court explains that, "declarant does not reconcile how it is that the agency 'does not transfer documents from the unclassified system to the classified system,'" and does not answer the question of whether "responsive records are located elsewhere before being 'scanned and uploaded to the classified system.'"
  • Procedural Requirements Segregability:  While the court partially grants defendant's request for summary judgment, it also denies the request in part because, "[one defendant] has failed to satisfy its segregability burden because it has failed to submit a declaration attesting that it released all segregable, non-exempt material."  The court explains that, "[t]his is a basic requirement, and without it the court cannot conclude that [defendant] has satisfied its segregability obligations."
  • Procedural Requirements Responsiveness:  The court holds that, as to records regarding search tools, defendant, "must release such records to the plaintiff to the extent that they are not exempt from disclosure" and agrees with plaintiff's argument that defendant, "also wrongfully redacted some responsive information as 'non responsive.'"  The court relates that this portion of plaintiff's request concerned "'[r]ecords which describe the search tools and indices.'"  The court holds that, "any record containing information about the capabilities of the search tools and indices in question would 'describe' those search tools and indices, and thus would be responsive to the plaintiff's request," and, "[s]imilarly, any record containing information about how to use the search tools and indices in question (e.g., training materials for users) would also 'describe' those search tools and indices."
  • Exemption 1:  The court holds that, "[u]pon consideration of the sworn declarations and accompanying Vaughn indices provided by the [defendants], the court is satisfied that both agencies have provided 'a plausible assertion that information is properly classified.'"  The court explains that, "plaintiff is reading [defendant's] declaration and Vaughn index in isolation, rather than reading both documents together."  "Although [defendant's] Vaughn index only states, for example, that information was withheld because it 'contains classified information disclosing intelligence sources and methods,' . . . [defendant's] declaration explains in much more detail what is meant by 'intelligence sources and methods' or 'intelligence activities.'"  "Hence, reading all of [defendant's] materials together, [defendant] has plausibly established that the information withheld contains information about intelligence-gathering activities."  Moreover, the court notes that another defendant's statement that, "documents withheld under Exemption 1 are 'document[s] consist[ing] of a work tasking within the Intelligence Community on a classified subject matter,' which 'would reveal ... intelligence sources and methods and would therefore compromise the intelligence information collection mission effectiveness of the intelligence community,'" is "undoubtedly 'something more than a parroting of the statutory standards.'"  "Although many details of these two documents remain unknown, [defendant's] declaration plausibly establishes that the withheld information relates to sensitive operations within the Intelligence Community, the substance of which is properly classified in the interest of national security."  "That is sufficient to grant summary judgment."  The court also disagrees with plaintiff's procedural argument and states that, "[a]s the court has previously held, 'an agency need only satisfy the requirements of Executive Order § 1.1(a) to classify information properly for purposes of FOIA Exemption 1.'"  "If the agency's release or other representations suggest that information may have been classified after the relevant FOIA request was submitted, the agency has the burden of coming forward with evidence to establish either (1) the information was classified prior to the FOIA request; or (2) the agency satisfied the requirements of § 1.7(d)."  However, the court holds that, "[t]he denomination of [] nine documents as 'Unclassified' in [defendant's]s Vaughn index raises a genuine factual question regarding whether the classified information contained in these documents was classified prior to the FOIA requests submitted by the plaintiff."  "Accordingly, the burden is now on [defendant] to establish that either (1) the information in these nine documents was classified prior to the plaintiff's FOIA request; or (2) the agency satisfied the requirements of § 1.7(d) in classifying the information."  In response to another request in which plaintiff contends that defendant withheld public information, the court states that, "[a]gencies do not have an affirmative duty to ascertain whether information has been made publicly available before deciding to withhold it from release under the FOIA."  "Therefore, the fact that certain pieces of information withheld by [defendant] had previously become publicly available does not demonstrate any 'general sloppiness' on the part of [defendant] that would undercut the 'substantial weight' accorded to 'an agency's affidavit concerning the details of the classified status of the disputed record.'"  Additionally, in response to plaintiff's contention that insignificant details were withheld under Exemption 1, the court holds that, "'[m]inor details of intelligence information may reveal more information than their apparent insignificance suggests because, 'much like a piece of jigsaw puzzle, each detail may aid in piecing together other bits of information, even when the individual piece is not of obvious importance in itself.''"  "Since this court lacks the expertise to second-guess the appropriateness of classifying certain information simply because it may appear harmless, the court will not venture to do so here."
  • Exemption 2:  The court "den[ies] summary judgment to [defendant]" in relation to its use of Exemption 2.  The court states that, "[t]he Supreme Court's guidance in Milner is crystal clear regarding the scope of Exemption 2, and it is equally clear, under Milner, that Exemption 2 does not apply to the 'internal training documents' withheld by [defendant]."  The court finds that, "[t]hese documents, which 'contain[ ] the procedures and guidelines utilized by [defendant] officers in processing FOIA and Privacy Act requests,' are not human resources documents," but rather, "they are the very 'records concerning an agency's internal rules and practices for its personnel to follow in the discharge of their governmental functions,' which the Supreme court specifically excluded from the scope of Exemption 2."
  • Exemption 3:  The court considers, "(1) [one defendant's] Exemption 3 withholdings made under the authority of Section 6 of the CIA Act, 50 U.S.C. § 403g, in all three cases, (2) [another defendant's] Exemption 3 withholdings made under the authority of the National Security Act, 50 U.S.C. § 403–1(i)(1), in No. 11–445, and (3) [another defendant's] Exemption 3 withholding of the domain portions of e-mail addresses, under the authority of Section 6 of the CIA Act, in No. 11–445."  The court first considers, "[one defendant's] withholding of over 300 responsive records, in whole or in part, under FOIA Exemption 3."  The court notes that, "[a]t the outset, one thing is clear: 50 U.S.C. § 403g is 'precisely the type of statute[ ] comprehended by exemption (b)(3).'"  The court holds that, "[f]rom the D.C. Circuit's limited guidance . . . [defendant's] proposed construction of § 403g's scope is too broad."  The court explains that, "the plain text of the statute limits protection from disclosure only to the functions and organization pertaining to or about personnel . . . not to all information that relates to such functions and organization."  Therefore, certain information "clearly fall[s] outside that provision's scope, including (1) internal templates utilized by the CIA in tasking FOIA requests, (2) internal rules, policies and procedures governing FOIA processing, and (7) information about the CIA's 'core functions,' including intelligence activities, intelligence sources and methods, and the collection, analysis, and dissemination of foreign intelligence."  The court then turns to another defendant's Exemption 3 withholdings and holds that, "the court need not decide whether [defendant] has the independent authority to invoke the National Security Act as an Exemption 3 withholding statute" because defendant "'has decided to withdraw its assertions of Section 403–1(i)' since 'the National Security Act was asserted in each instance as an alternative ground for withholding.'"  Last, the court "den[ies] summary judgment to [another defendant]," but "will permit the agency to submit a supplementary declaration explaining why e-mail domain information is exempt from disclosure under either or both exemptions."  This instance regards the redaction of "certain portions of email addresses . . . under the CIA Act."  The court states that, "domain information would not reveal the 'names ... of personnel employed by the [CIA].'"  However, the court states that, "[i]t is plausible . . . that even domain information could reveal information about [defendant's] 'internal structure'" and, therefore, it will "permit the agency to submit a supplementary declaration."
  • Exemption 5, Deliberative Process Privilege:  The court denies defendants' motion for summary judgment.  The court concludes that, "''not that the documents are not exempt as a matter of law, but that the agenc[ies] ha[ve] failed to supply' in [their] Vaughn submissions 'the minimal information necessary to make a determination' concerning applicability of the deliberative process privilege.'"  The court finds that, "[a]t a minimum, the agency must provide three basic pieces of information in order for the deliberative-process privilege to apply: (1) the nature of the specific deliberative process involved, (2) the function and significance of the document in that process, and (3) the nature of the decisionmaking authority vested in the document's author and recipient."  The court specifically points to "conclusory labels like 'internal,' 'deliberative,' 'candid,' and 'pre-decisional,'" as being insufficient.  Therefore, the court states that "[i]f [defendant] chooses to continue to withhold this information, [defendant] must submit a supplemental Vaughn index that adequately justifies that withholding."
  • Exemption 5, Attorney Client Privilege:  The court denies defendant's request for summary judgment.  The court first focuses on, "three deficiencies in [defendant's] submissions that prevent the court from granting summary judgment regarding the majority of [defendant's] invocations of the attorney-client privilege."  These are:  "the repeated and carefully circumscribed statement that communications 'relate to matters for which attorneys provide legal advice . . . does not necessarily support the conclusion that such communications are privileged," "[t]he 'subjective intentions' of confidentiality put forth by [defendant] are therefore insufficient to establish 'confidentiality in fact,'" and defendant's statement that the documents "'contain[ ] legal advice,' . . . does not necessarily support the wholesale withholding of such documents."  The court further finds that, "the public disclosure of at least a portion of the contents . . . waives the attorney-client privilege as to that portion of the opinion and therefore [defendant] cannot assert attorney-client privilege to withhold it."  The court also points out similar deficiencies in regard to other requests such as the failure, "to provide any document-specific information about 'the factual circumstances that surround the document's creation,'" leading the court to have, "no way to make that document-by-document assessment based on [defendant's] submissions."
  • Exemption 6:  The court "den[ies] summary judgment to [defendant]," but "will permit the agency to submit a supplementary declaration explaining why e-mail domain information is exempt from disclosure under either or both exemptions."  Regarding the redaction of domain names, the court holds that, "the domains likely do not constitute 'personal identifiers,' which was [defendant's] stated reason for withholding the full e-mail addresses."
Agency Records
District Court
Exemption 1
Exemption 2
Exemption 3
Exemption 5
Exemption 6
Reasonably Described Records
Updated August 6, 2014