Nat'l Sec. Counselors v. CIA, 969 F.3d 406 (D.C. Cir. 2020) (Srinivasan, J.)

Nat'l Sec. Counselors v. CIA, 969 F.3d 406 (D.C. Cir. 2020) (Srinivasan, J.)

Re:  Requests for:  1) "listing of all FOIA requesters from fiscal years 2008 to 2010 organized under each of four fee categories contemplated by FOIA:  'news media,' 'educational or scientific,' 'commercial,' or 'all other;'" 2) "'all Central Intelligence Agency records pertaining to the IBM supercomputer named "Watson'"

Disposition:  Affirming district court's grant in part of government's motion for summary judgment

• Procedural Requirements, Searching for Responsive Records:  The Court of Appeals for the District of Columbia Circuit holds that "[the requester's] request for the CIA to produce listings according to four fee categories of all FOIA requesters over a two-year period would require the agency to create new records, not to disclose existing ones."  The court relates that the government "explained [that] '[f]ee category is not a mandatory field in CIA's current electronic FOIA records system; therefore, this information is often not included in a FOIA request record.'"  "To produce listings of FOIA requesters by fee category per [the requester's] request, then, 'the CIA's FOIA analysts would be required to individually review each FOIA request submitted from 2008 to 2010 and manually sort thousands of requests based on fee category.'"  "That process would quintessentially entail the creation of new records, not the disclosure of preexisting ones."
  
  Additionally, the court holds that "the agency and the district court correctly concluded that, as drafted, the request called for an unreasonably burdensome search."  The court relates that "[a]s the CIA's Information Review Officer explained in her declaration, 'it is difficult to determine where responsive information would likely be located within the Agency because the request is so general.'"  "'CIA's records,' she advised, 'are decentralized and compartmented."  "Each directorate . . . must determine which components and/or records systems within the directorate might reasonably be expected to possess records responsive to a particular request.'"  "As a result, 'the CIA would be required to search every office for any documents containing the word "Watson,"' which would amount to a 'massive undertaking.'"
   
• Waiver and Discretionary Disclosure, Waiver:  "[The Court of Appeals for the District of Columbia Circuit conclude[s] . . . that there was no waiver of the attorney-client privilege with regard to the two OLC opinions [at issue]."  The court relates that "[i]n the case of one of the opinions, the waiver ostensibly occurred when OLC cited a legal conclusion contained in it in the course of another, publicly disclosed opinion."  "In the case of the second OLC opinion, the waiver ostensibly occurred when an OLC attorney provided a 'summary of a summary' of the opinion in an interagency committee meeting."  "Neither of those events effected a waiver of the privilege with regard to the two referenced opinions."  The court holds that "[it] need not assess whether the nature of the references to the two opinions sufficed to constitute a waiver of the attorney-client privilege."  "That is because, in any event, the references were made by the attorney (OLC), not the client (the agency to which OLC gave advice)."  "Disclosure 'by the holder' of the privilege can give rise to a waiver, . . . and as NSC recognizes, it 'is axiomatic that the attorney-client privilege is held by the client' . . . ."