Scudder v. CIA, No. 12-807, 2014 WL 954830 (D.D.C. Mar. 12, 2014) (Howell, J.)
Re: Requests for electronic copies of certain Studies in Intelligence (SII) articles
Disposition: Denying plaintiff's and defendant's four cross-motions for summary judgment; granting plaintiff's motion for discovery
Procedural Requirements, Responding to FOIA Requests: The court holds "that summary judgment is precluded as to both parties and, consequently, the plaintiff and defendants' motions for summary judgment on the electronic production of records are denied." The court notes that "[t]he parties to the instant matter agree on this point regarding the fact-based nature of the 'readily reproducible' inquiry, but simply discount or reject outright the evidence presented by the other side about whether this FOIA requirement is met in this case." The court finds that "defendant is incorrect that an agency need only produce records in a particular format requested if the agency already keeps its records in that format." The court explains that "[t]he plain language of 5 U.S.C § 552(a)(3)(B), as confirmed by the DOJ's guidance to agencies regarding compliance with this subsection, requires agencies to provide records in requested formats, which are 'readily reproducible' for the agency, whether or not the record is maintained by the agency in that format." However, the court also finds that "'readily reproducible' is not, as the plaintiff contends, synonymous with 'technically feasible.'" The court states that it "may consider the burden on the defendant in determining whether the documents at issue are 'readily reproducible' in the format the plaintiff requests." The court further notes that "[d]espite the defendant's claims of incapability and incapacity, the defendant has not established through 'specific, compelling evidence' that complying with the plaintiff's request would constitute 'significant interference or burden,' in the face of the plaintiff's contrary factual assertions, which are predicated on deep personal knowledge."
Litigation Considerations, Discovery: The court holds that "plaintiff's motion in the alternative for discovery and/or an evidentiary hearing is granted." The court explains that "plaintiff here has produced evidence, in the form of correspondence to another FOIA requester, . . . that the defendant has released records responsive to FOIA requests in an electronic format, despite the defendant's assertions that the defendant's systems are 'designed for transfer of discrete sets of data files for mission critical purposes and does not have the resources to support massive information review and release projects.'" Additionally, the court explains that "defendant has put the plaintiff's credibility at issue by challenging his claims of personal knowledge as to the defendant's systems and capabilities." The court states that it "has previously indicated that, in the context of the fact-specific inquiry demanded by the FOIA's 'readily reproducible' requirement and the defendant's heretofore inadequate declarations, '[i]t may be that these and other lingering factual questions ... will have to be resolved in the traditional manner of resolving factual disputes in the federal judicial system—a hearing or trial.'" However, the court does state that it "will allow the parties the opportunity to meet and confer to determine if a discovery plan that stops short of a hearing would adequately resolve the material factual disputes in the instant matter."