Nat'l Sec. Counselors v. CIA, No. 12-284, 2016 WL 6684182 (Nov. 14, 2016) (Howell, C.J.)

Nat'l Sec. Counselors v. CIA, No. 12-284, 2016 WL 6684182 (Nov. 14, 2016) (Howell, C.J.)

Re: Plaintiffs' more than thirty FOIA and MDR requests

Disposition: Granting in part and denying in part defendants' renewed motion for summary judgment; denying plaintiffs' motion for partial summary judgment

• Litigation Considerations, Exhaustion of Administrative Remedies: The court holds that "[plaintiff] has constructively exhausted its administrative remedies and the defendants' request for summary judgment on this issue is denied." The court explains that "plaintiff[] made no allegation regarding [one request] until after the twenty-business-day statutory exhaustion period had elapsed." "Thus, the defendant agency had no basis to presume that the plaintiff would seek judicial review of its processing of this request prior to the conclusion of this period, and there is no reason to believe that allowing this claim to proceed will disrupt any ongoing administrative process." The court relates that "the parties agree that the plaintiffs' challenge to the CIA's response to [the request] did not appear in the original complaint." "Rather, it appeared only in the Amended Complaint, which was filed twenty-two business days after [plaintiff] originally submitted Request 857."
   
• Litigation Considerations, Adequacy of Search: First, the court holds that "the agency has met its burden of demonstrating that its search for responsive records was 'reasonably calculated to uncover all relevant documents.'" The court relates that defendant stated that it searched "'the only office reasonably likely to maintain records responsive to [plaintiff's] FOIA request[.]'" Responding to plaintiff's argument, the court finds that "while the plaintiff[] may be correct that [there are "additional, as-yet undiscovered affidavits or declarations"], they point to no evidence in the record showing that any such declarations were responsive to [the] request." "To the extent that the plaintiffs now seek these additional declarations, they are free to attempt to obtain those records through a second, more broadly worded request." However, second, the court finds that "the agency has failed to demonstrate that its search in response to [plaintiff's] more broadly framed request was reasonably designed to identify responsive records[.]" The court finds that "the agency provided little information regarding 'what parameters were used to accomplish the search[.]'" Also, the court finds that, "[w]hile the agency has more recently supplemented its initial declarations in the related case with a more detailed description of its search for responsive . . . records, the agency has thus far offered no such clarification here." "This lack of specificity is particularly problematic given the apparent discrepancies between the ultimate returns from each of [the] related searches."
   
• Exemption 1: Regarding the CIA's use of Exemption 1, the court holds that "summary judgment is granted to the defendants." The court finds that "the agency's declarant explicitly avers that the 'CIA has not officially acknowledged the existence or non-existence of a clandestine CIA office at the location at issue in [[plaintiff's] FOIA] request.'" Also, the court finds that "[p]ut simply, confronted with the agency's explicit disavowal of any formal disclosure, the plaintiffs' reliance on stray references in four documents prepared by sources outside the agency over the course of thirteen years is insufficient to demonstrate that the agency has in fact officially disclosed information it now seeks to withhold." Also responding to plaintiffs' argument, the court finds that "the CIA is not required to establish a declassification timeline in order to 'properly classif[y]' a Glomar fact under Executive Order 13526." Regarding ODNI's use of Exemption 1, the court holds that ODNI properly withheld "'internal forms used within the ODNI to properly and thoroughly document staff actions and recommendations for senior officials.'" Responding to plaintiffs' segregability argument, the court finds that, "[g]iven that the withheld records would, by their very nature, include a detailed description of the nature of a particular FOIA action and the national security interests at play in each underlying FOIA request, it [is] not illogical that any non-exempt information included in these documents would not be reasonably segregable." "In particular, there is little reason to believe that the simple removal of case names or information identifying the agencies involved in a particular case would sufficiently protect the important intelligence interests and methods described by the ODNI's declarant."
   
• Exemption 3: The court holds that "summary judgment is granted in part and denied in part to the defendants with respect to their withholdings pursuant to FOIA Exemption 3." Regarding withholdings made pursuant to the CIA Act, the court finds that, "
  [c]onsistent with [the court's previous] interpretation, because the CIA refers only to the agency's organization and functions in justifying its withholdings, with no suggestion that the information withheld pertains to or is otherwise about CIA personnel, the defendants' request for summary judgment as to its withholding[] [of a reference code] is denied." Similarly, the court finds that "the agency's cursory references to 'CIA personnel' are insufficient to convert [other] withheld material into information pertaining to or about personnel that would be properly exempt from disclosure under the CIA Act." The court explains that "while '[i]t is undoubtedly true that managing, storing, and retrieving information is a function of some, if not all, CIA personnel, . . . the CIA is attempting to augment the scope of [the CIA Act] by withholding information that merely relates to or concerns that function.'" "'The language of the statute simply does not support such a broad reading.'" Regarding withholdings made pursuant to the National Security Act, the court initially notes in response to defendant's arguments that much of "the materials the plaintiffs seek were initially withheld not under an explicit court order, but instead as a result of the CIA's determination that the relevant filings contained classified information that could not be disclosed publicly." "In each instance, the private parties in these prior actions were ordered to submit their proposed filings to the CIA for review and potential redaction before entering these filings on the public docket." "While the D.C. Circuit has not had occasion to consider whether materials redacted in this manner are presumptively excluded from FOIA coverage, there is some reason to believe that such disclosure is generally barred." However, the court finds that "[a]s yet, however, the CIA has pointed to no order explicitly prohibiting disclosure of any unredacted materials." The court then finds that, "[w]here the agency has failed to meet [it]s burden [under Exemption 3], the Court will provide an opportunity for the agency to identify a court order or other associated rule prohibiting the release of any withheld information at issue in this case." The court proceeds to find that "[it] is not persuaded that, on the record currently presented, the CIA has met its burden of demonstrating that [certain] records it seeks to withhold would reveal intelligence sources or methods." "[Certain] materials the plaintiffs seek are public, unconfirmed news reports of agency activities abroad." "While the agency has made clear that it can neither confirm nor deny the veracity of those reports, the agency has allowed similar (or the same) reports to be associated with the allegations set out in the public." However, the court also finds that "[other] materials the plaintiffs seek were filed in connection with an action directly implicating the activities and responsibilities of a clandestine CIA employee[]" and, "[i]n this context, there is little reason to doubt the agency's assertion that information withheld in these materials would reveal intelligence methods and activities." "Further, to the extent that the plaintiff[] . . . seek[s] internal classification markings and related dissemination control markings, Judges on this Court have held that such markings 'could plausibly contain information that may reveal intelligence collection sources or methods protected by the National Security Act, particularly in light of "the weight of authority counseling deference to CIA in matters involving national security."'" Similarly, the court finds that "the CIA has met its burden of demonstrating that the language withheld from this internal agency memorandum would reveal intelligence methods and is, therefore, exempted from disclosure[.]" The court also finds that the CIA has met its burden with respect to "material appearing on an attached 'internal routing and information page' was redacted 'in order to not disclose the information protected by [a] Glomar response itself.'"
   
• Exemption 5, Deliberative Process Privilege: "Following in camera review of the document at issue, the Court finds that the defendants' suggestions regarding the nature of the redacted information are misleading and their withholdings . . . unjustified." The court explains that "by redacting this information, the agency seeks to withhold general information regarding the manner in which FOIA requests are processed by the CIA." "This it cannot do." "Directions to deliberate do not themselves constitute deliberation."