Nat'l Sec. Counselors v. CIA, No. 11-443, 11-444, 11-445, 2016 WL 4621060 (D.D.C. Sept. 6, 2016) (Howell, J.)

Nat'l Sec. Counselors v. CIA, No. 11-443, 11-444, 11-445, 2016 WL 4621060 (D.D.C. Sept. 6, 2016) (Howell, J.)

Re: Plaintiff's multiple FOIA requests, specifically including certain records concerning CIA in-house journal and certain records concerning CIA FOIA processing

Disposition: Granting defendants' motions for summary judgment; denying plaintiff's motions for summary judgment; denying plaintiff's motion for reconsideration

• Waiver & Exemption 1: "In short, the plaintiff asks the Court, upon consideration of additional evidence purportedly showing that records published on the CIA's website have been withheld by the agency, to reexamine its holding that the CIA undertook reasonable efforts to ensure that all withheld information is exempt from disclosure under Exemption 1." "Having reviewed this evidence, however, the Court concludes that reconsideration of its prior holding is not warranted." "As before . . . the Court is not persuaded that the evidence proffered by the plaintiff meaningfully undermines the agency's assurance that it undertook reasonable steps to produce all non-exempt records responsive to the plaintiff's FOIA request." The court relates that "agency officials searched both the agency's public website and the CIA's internal databases 'to determine whether the [a]gency had made any previous releases of' the information" and "averred that the agency released any previously disclosed information." Additionally, responding to plaintiff's argument", the Court is not convinced that the redaction of certain [in other locations] previously released material meaningfully undermines the CIA's assertion that it has taken reasonable steps to ensure that all withheld information is properly subject to Exemption 1." Finally, the court finds that "plaintiff offers no basis for concluding that the failure to take account of information released only after that search in any way undercuts the agency's assurance that all information publicly released as of the original search was produced to [plaintiff]."
   
• Litigation Considerations, Adequacy of Search: Regarding the search conducted in response to one request, the court holds that "the CIA has met its burden of describing adequately the personnel who performed the search for responsive records and the methods used in that search[.]" The court relates that "[t]he CIA reasonably restricted its search to [Information Management Services ("IMS")] in light of the plaintiff's request seeking 'only those search tools and indices that would be personally used by IMS personnel to search IMS records systems.'" "Additionally, although he CIA avers that IMS does not consider [two databases] to be 'search tools,' it nevertheless searched for any description of the databases since it believed the databases could be considered responsive to the request." Regarding the search conducted in response to another request, the court finds that "[c]ontrary to the plaintiff's creative parsing of the agency's declaration, the search terms used did not distinguish between oral or written training, nor is there any evidence that any such limit was raised during conversations with the division's managers." "Accordingly, the detailed description provided in the agency's most recent declaration provides enough specificity to find that the search for records responsive to [this request] was sufficient." Regarding the search conducted in response to a few other requests, the court holds that "plaintiff's request to revisit the Court's prior holding on this issue is denied" because "plaintiff has waived any challenge to the adequacy of CIA's searches for records responsive to the requests" because he "made no argument regarding the CIA's search efforts" and plaintiff has not "offered enough evidence to convince the Court that 'justice requires' a reversal of its previous grant of summary judgment based on arguments the plaintiff could have, but explicitly chose not to raise."
   
• Exemption 3: "[W]hile rejecting its withholdings under the CIA Act . . ., the Court grants summary judgment to the CIA as to its withholdings under FOIA Exemption 3 and the National Security Act." The court relates that "plaintiff challenges the CIA's decision to withhold material from three documents under Section 6 of the Central Intelligence Agency Act ('CIA Act'), 50 U.S.C. § 3507, and to withhold material in two of these records, as well as fifteen other documents, under the National Security Act, 50 U.S.C. § 3024(i)." First, the court finds that "the agency's reliance on the CIA Act for the withholding of . . . three documents is rejected." The court finds that "information regarding which directorate within the agency is primarily responsible for maintaining particular categories of records is" not withholdable because "the CIA Act may be invoked to protect only certain specified categories of information related to agency employees, namely, '"the organization, functions, names, official titles, salaries, or numbers of personnel employed by the Agency."'" The court finds similarly regarding the withholding of "training materials for CIA employees related to the agency's collection, maintenance, and disclosure of personal information" because "the agency may invoke the CIA Act to withhold only those materials that 'would reveal the specific categories of personnel-related information' identified in the statute." Second, regarding the withholdings made pursuant to the National Security Act, the court agrees with defendant "that information indicating that a particular category of agency records is maintained by a division involved in intelligence gathering, as opposed to a division that merely analyzes information already held by the CIA, provides some indication of the 'intelligence . . . methods' employed by the agency." The court also agrees with defendant's withholding of certain material compiled to provide guidance on how to respond to FOIA requests, including certain internal administrative codes, because, "[w]hile certain of these codes have been disclosed . . . it is not illogical to assume that other, undisclosed codes may correspond to agency activities that would provide, for individuals familiar with the agency's operations, enough clues to discern unacknowledged or otherwise protected intelligence methods." The court adopts this same reasoning for the withholding of certain "underlying organizational documents."
   
• Exemption 5, Deliberative Process Privilege: "[T]he Court grants summary judgment to the CIA, the DIA, and the ODNI with respect to those agencies withholdings pursuant to the deliberative process privilege and FOIA Exemption 5." First, the court holds that "records reflecting the agency's preliminary searches are not categorically excluded from protection under the deliberative process privilege and are, instead, properly withheld as deliberative under Exemption 5." The court finds that "both the search terms and results of the agency's preliminary searches in connection with the relevant FOIA requests is easily characterized as predecisional[]" because they "are used to guide the agency's later response to a particular FOIA request and generally cannot be said to 'support a decision already made.'" Additionally, the court finds that "revealing the initial search terms and results used by the agency to guide its subsequent efforts to respond to a particular FOIA request may expose a central element of the agency's deliberations in determining how to formulate any final response." Second, the court holds that "the agency's formulaic descriptions of . . . withheld [FOIA Internal Business Procedure] drafts provides relatively little information to support its decision to withhold these documents in their entirety." However, the court finds that, "while the relative paucity of information provided by the CIA makes this a close case, the Court is ultimately persuaded that the agency has – barely – met its burden of demonstrating that the agency properly invoked Exemption 5 in withholding these materials." The court finds that "the CIA does not identify or otherwise describe the agency officials who authored or edited these materials, much less the decision-making authority vested in these individuals." "Moreover, while the agency need not identify a specific final document to demonstrate a draft's predecisional nature, . . . the agency provides no description of the deliberative process in which these drafts were involved or the role played by the documents in that process." "Nonetheless, the agency's unrefuted submissions make clear that the withheld materials represented draft versions of internal agency procedures that preceded the adoption of any final agency policy." Third, the court finds that the DIA correctly withheld "memoranda between the DIA FOIA Office and other federal agencies regarding efforts to coordinate responses to particular FOIA or MDR requests," as well as "memorandum that includes an inventory of 'specific recommendations for withholding and follow-on referrals to additional agencies[.]'" The court finds that "the DIA has adequately described both the nature of the deliberative process giving rise to the disputed documents, as well as the function and significance of these documents in that process." Fourth, "[b]ased on the description provided by the ODNI, as well as the Court's review of the underlying record containing the challenged redaction, the agency has met its burden of demonstrating that the redacted material[, "communication involved officials within ODNI discussing factors relevant to responding to a FOIA request,"] is properly subject to the deliberative process privilege." The court finds that "[t]he redacted material clearly precedes any final agency determination regarding the FOIA request at issue and served to inform the agency's ultimate response."
   
• Exemption 5, Attorney-Client Privilege: "[T]he Court grants summary judgment to the CIA and DOJ with respect to those agencies' withholdings pursuant to the attorney-client privilege and FOIA Exemption 5." First, the court holds that "summary judgment is granted to the CIA with respect to its Exemption 5 withholdings in . . . three documents[]" which describe "'legal advice provided by a CIA attorney to the client and then memorialized by the client in [a certain] database.'" Second, the court finds that "legal advice and examples provided by CIA OGC attorneys to assist in the preparation of training materials for CIA employees responsible for processing FOIA requests for agency records" was properly withheld, and specifically finds that "these records have been maintained confidentially, such that 'the contents of these records were not shared beyond the parties.'" Last, the court relates that "DOJ was ordered to 'disclose to the plaintiff the specific portion or portions of [certain documents]." The court finds that "the agency's declarant states that the portions of the documents ordered disclosed were disclosed, and the remainder that had not been publicly revealed – and thus retained their privileged character – was redacted."