National Security Counselors v. Central Intelligence Agency

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

NATIONAL SECURITY COUNSELORS,

Plaintiff,

Civil Action Nos. 11-443, 11-444, 11-445

v. (BAH)

CENTRAL INTELLIGENCE AGENCY, et al., Judge Beryl A. Howell

Defendants.

MEMORANDUM OPINION

The plaintiff National Security Counselors (“NSC”) brought these three related actions

against six federal agencies pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C.

§ 552, claiming that the defendant agencies have violated the FOIA in numerous ways. 1 NSC’s

claims run the gamut, including 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. Although six agencies are named

as defendants, 2 the vast majority of the plaintiff’s claims relate to the actions of the Central

Intelligence Agency (“CIA”) in processing and responding to FOIA requests. The defendants

previously moved to dismiss many of the plaintiff’s claims, which this Court previously granted

in part and denied in part. See Nat’l Sec. Counselors v. CIA (“NSC I”), 898 F. Supp. 2d 233

1

The plaintiff filed each of these actions on the same day and notified the Court that all three cases are related to one

another because they involve common factual and legal issues. See Notice of Related Case, No. 11-444, ECF No. 2;

Notice of Related Case, No. 11-445, ECF No. 2. Although the Court has not formally consolidated these actions,

due to their interrelated nature and in the interests of judicial economy the Court has adjudicated dispositive motions

in the three cases in consolidated opinions. For these same reasons, the Court administratively stayed all three

actions for approximately four months while the parties completed the briefing of summary judgment motions and

cross-motions in each case. See Minute Order dated Mar. 21, 2013.

2

The six defendants are: the Central Intelligence Agency (“CIA”), the Department of Justice (“DOJ”), the Defense

Intelligence Agency (“DIA”), the Department of State (“State Department”), the National Security Agency

(“NSA”), and the Office of the Director of National Intelligence (“ODNI”).

1

(D.D.C. 2012). The defendants now move for summary judgment on all of the plaintiff’s

remaining claims, and the plaintiff has also cross-moved for summary judgment on a portion of

those claims. Additionally, the plaintiff has filed a motion for sanctions in one of the related

cases and a motion for leave to file an amended complaint in another. For the reasons discussed

below, the Court grants in part and denies in part the defendants’ motions for summary

judgment, grants in part and denies in part the plaintiff’s cross-motions for summary judgment,

denies the plaintiff’s motion for sanctions, and denies the plaintiff’s motion for leave to file an

amended complaint.

Table of Contents

I. Background .............................................................................................................................. 5

A. 2009 FOIA Requests ............................................................................................................ 6

1. Count Twenty in No. 11-444: September 25, 2009 FOIA Request to the CIA ............... 6

2. Count Eight in No. 11-445: October 22, 2009 FOIA Request to the DOJ ...................... 7

3. Counts One, Five and Six in No. 11-445: December 1, 2009 FOIA Requests to the CIA,

DIA, and ODNI....................................................................................................................... 8

B. 2010 FOIA Requests .......................................................................................................... 10

1. Counts Seven, Nine and Ten in No. 11-445: February 6, 2010 FOIA Requests to the

CIA, State Department, and NSA ......................................................................................... 10

2. Counts Two and Three in No. 11-445: February 9, 2010 FOIA Requests to the CIA... 12

3. Count Seventeen in No. 11-444: May 4, 2010 FOIA Requests to the CIA ................... 14

4. Count Three in No. 11-443: May 12, 2010 FOIA Request to the CIA .......................... 15

2

5. Count Nine in No. 11-444: May 13, 2010 FOIA Request to the CIA .......................... 16

6. Count Eight in No. 11-444: July 5, 2010 FOIA Request to the CIA ............................. 18

7. Count One in No. 11-444: August 8, 2010 FOIA Requests to the CIA ......................... 19

C. 2011 FOIA Requests .......................................................................................................... 20

1. Count Eighteen in No. 11-444: January 26, 2011 FOIA Request to the CIA ................ 20

2. Count Thirteen in No. 11-445: February 11, 2011 FOIA Request to the CIA............... 21

3. Count Ten in No. 11-444: February 16, 2011 FOIA Request to the CIA ...................... 21

D. Facts Related to the Plaintiff’s Motion for Sanctions ........................................................ 22

E. Procedural History ............................................................................................................. 26

II. Legal Standards ..................................................................................................................... 28

A. FOIA .................................................................................................................................. 28

B. Summary Judgment ........................................................................................................... 31

C. Leave to File Amended Complaint .................................................................................... 32

III. Discussion.............................................................................................................................. 33

A. Motion for Leave to Amend .............................................................................................. 33

B. Motion for Sanctions.......................................................................................................... 36

C. Policies or Practices ........................................................................................................... 38

1. Assignment of Rights Policy .......................................................................................... 38

2. Document-Level Exemption Policy ............................................................................... 58

D. Adequacy of Search Efforts ............................................................................................... 62

3

1. Count Eighteen in No. 11-444: January 26, 2011 FOIA Request to the CIA ................ 62

2. Count Twenty in No. 11-444: September 25, 2009 FOIA Request to the CIA ............. 65

3. Count Nine in No. 11-445: February 6, 2010 FOIA Request to the State Department . 67

4. Count Ten in No. 11-445: February 6, 2010 FOIA Request to the NSA ....................... 69

E. Refusals to Process Requests ............................................................................................. 71

1. Count Nine in No. 11-444: May 13, 2010 FOIA Request to the CIA ........................... 72

2. Count Eight in No. 11-444: July 5, 2010 FOIA Request to the CIA ............................. 74

3. Count One in No. 11-444: August 8, 2010 FOIA Requests to the CIA ......................... 77

4. Count Ten in No. 11-444: February 16, 2011 FOIA Request to the CIA ...................... 79

F. Exemption 1 ....................................................................................................................... 83

1. Exemption 1 Withholdings in No. 11-445 (CIA and DIA) ............................................ 84

2. Exemption 1 Withholdings in No. 11-443 ..................................................................... 90

G. Exemption 2 ....................................................................................................................... 96

H. Exemption 3 ....................................................................................................................... 99

1. CIA ............................................................................................................................... 100

2. DIA ............................................................................................................................... 119

3. ODNI ............................................................................................................................ 120

J. Exemption 5 ..................................................................................................................... 122

1. Deliberative-Process Privilege ..................................................................................... 123

2. Attorney-Client Privilege ............................................................................................. 131

4

3. Attorney Work-Product Doctrine ................................................................................. 143

K. Electronic Records ........................................................................................................... 147

1. CIA ............................................................................................................................... 148

2. State Department .......................................................................................................... 151

L. Segregability .................................................................................................................... 154

IV. Conclusion ........................................................................................................................... 157

I. BACKGROUND

The plaintiff has twenty-four claims remaining in these related actions. Since twenty-one

of the plaintiff’s remaining claims relate to specific FOIA requests, the Court will briefly

summarize the timing and content of those requests, the agency’s processing of and response to

those requests, and the aspects of the agency’s processing and responses that are challenged by

the plaintiff. 3 In summarizing the specific FOIA requests at issue, the Court will proceed in

chronological order, rather than in the order the requests are pleaded in the plaintiff’s complaints.

In this regard, the Court will organize its discussion by the year in which the FOIA requests were

first submitted. The Court will also discuss the factual and procedural background related to the

plaintiff’s motion for sanctions.

3

The Court will not summarize the factual background related to Count Twelve in No. 11-445 or Count Nineteen in

No. 11-444 because the plaintiff has either conceded summary judgment or voluntarily withdrawn those claims. See

Pl.’s Mem. in Opp’n to Def.’s Mot. Summ. J. on Counts 12 and 20 (“Pl.’s Second 445 Opp’n”) at 2, No. 11-445,

ECF No. 43; Pl.’s Opp’n to Def.’s Mot. Summ. J. on Counts 1, 8, 9, 10, 17, 18, and 20 (“Pl.’s First 444 Opp’n”) at 1

n.2, No. 11-444, ECF No. 26.

5

The plaintiff’s two other remaining claims relate to policies or practices of the CIA that

the plaintiff alleges are in violation of the FOIA, which claims the Court summarized, along with

other policy and practice claims, in its previous memorandum opinion in these related cases. 4

See NSC I, 898 F. Supp. 2d at 243–44, 248–49. Specifically, as labeled in the Court’s previous

opinion, the plaintiff challenges the CIA’s Assignment of Rights Policy and its Document-Level

Exemption Policy. 5 See id.

A. 2009 FOIA Requests

1. Count Twenty in No. 11-444: September 25, 2009 FOIA Request to the

CIA

In a letter dated September 25, 2009, the plaintiff submitted a FOIA request to the CIA

seeking “all [CIA] records, including cross-references, pertaining to guidelines for attorneys in

the Office of General Counsel (‘OGC’) for the conduct of civil cases, especially pertaining to

interactions between OGC attorneys and Department of Justice (‘DOJ’) attorneys.” See Decl. of

Martha M. Lutz (Dec. 13, 2011) (“First Lutz Decl.”) Ex. T at 1, No. 11-444, ECF No. 20-4. By

letter dated October 28, 2009, the CIA acknowledged this request and informed NSC that the

CIA would “search for records existing through the date of this acceptance letter.” First Lutz

Decl. Ex. U at 1, No. 11-444, ECF No. 20-4. By letter dated January 10, 2011, the CIA provided

a final response to the plaintiff’s September 25, 2009 FOIA request, informing the plaintiff that

“[w]e did not locate any records responsive to your request.” First Lutz Decl. Ex. V at 1, No. 11-

444, ECF No. 20-4. The plaintiff administratively appealed the adequacy of the CIA’s search

efforts with respect to this request by letter dated January 21, 2011. See First Lutz Decl. ¶ 57.

4

The Court previously set forth all of the facts regarding the FOIA request that is the subject of Count One in 11-

443, and the Court incorporates that discussion fully here. See NSC I, 898 F. Supp. 2d at 243–44.

5

The Court will not address the facts underlying the plaintiff’s challenge to the CIA’s Cut-Off Date Policy in Count

Twenty-One of No. 11-444 because the plaintiff has agreed to voluntarily withdraw that claim. See Pl.’s Opp’n to

Def.’s Mot. Summ. J. on Counts Eight and Twenty-One (“Pl.’s Second 444 Opp’n”) at 2, No. 11-444, ECF No. 46.

6

By letter dated March 15, 2011, the CIA’s Agency Release Panel (“ARP”) denied the plaintiff’s

appeal, concluding that the CIA’s search efforts were adequate. See id. ¶ 59. In Count Twenty

of No. 11-444, the plaintiff challenges the adequacy of the CIA’s search efforts in response to the

plaintiff’s September 25, 2009 request, including the CIA’s use of an allegedly improper search

cut-off date. See First Am. Compl. (“444 FAC”) ¶¶ 104–110, No. 11-444, ECF No. 6; Mem. in

Supp. Def.’s Mot. for Summ. J. on Counts 1, 8, 9, 10, 17, 18, & 20 (“Def.’s First 444 Mem.”) at

10–11, No. 11-444, ECF No. 20. 6

2. Count Eight in No. 11-445: October 22, 2009 FOIA Request to the DOJ

On October 22, 2009, the plaintiff submitted a FOIA request to the Department of Justice

(“DOJ”) Office of Legal Counsel (“OLC”), seeking “copies of all [DOJ] [OLC] opinions

concerning the FOIA or the Privacy Act.” Decl. of Paul P. Colborn (Oct. 2, 2012) (“Colborn

Decl.”) Ex. A, No. 11-445, ECF No. 29-11. By e-mail dated October 25, 2009, the plaintiff

expanded the scope of this request to include opinions concerning the Federal Records Act, the

Presidential Records Act, or agency records retention policies. See Colborn Decl. Ex. B, No. 11-

445, ECF No. 29-11. On March 27, 2012, the OLC provided a final response to the plaintiff’s

FOIA request, producing twenty records in full and withholding all remaining responsive records

under FOIA Exemption 5 because “[t]hey are protected by the deliberative process and attorney-

client privileges.” Colborn Decl. Ex. C, No. 11-445, ECF No. 29-11. On July 6, 2012, the OLC

sent another letter to the plaintiff, advising it that the OLC was “releasing . . . one of the withheld

records because [OLC] discovered that it was previously released.” Colborn Decl. Ex. D, 11-

445, ECF No. 29-11. After releasing that one record, the OLC informed NSC that it continued to

6

Because this opinion addresses the claims in three separate actions brought by the same plaintiff, for purposes of

organizational clarity only, the Court will generally refer to each case by its civil case number, e.g., “No. 11-443.”

Additionally, for the same reasons, the Court will refer to court filings in each case with a numerical prefix that

corresponds to each civil case number. For example, the plaintiff’s First Amended Complaint in No. 11–444, when

cited in short form, will be referred to, for citation purposes only, as “444 FAC.”

7

withhold fifty-eight records responsive to its request. Id. In Count Eight of No. 11-445, the

plaintiff challenges the DOJ’s determination to withhold sixteen of the responsive OLC opinions

under FOIA Exemption 5. See First Am. Compl. (“445 FAC”) ¶¶ 62–67, No. 11-445, ECF No.

7; Colborn Decl. Ex. F at 1, No. 11-445, ECF No. 29-11.

3. Counts One, Five, and Six in No. 11-445: December 1, 2009 FOIA

Requests to the CIA, DIA, and ODNI

On December 1, 2009, the plaintiff submitted a FOIA request to the CIA for “all [CIA]

records referencing FOIA and Privacy Act requests submitted by [ten listed parties] that contain

remarks, comments, notes, explanations, etc. made by CIA personnel or contractors about the

processing of these requests (and appeals, if appropriate), the invocations of exemptions, or

related matters.” See Decl. of Martha M. Lutz (Sept. 26, 2012) (“Third Lutz Decl.”) Ex. A at 1,

No. 11-445, ECF No. 52-1; id. Ex. B at 1, No. 11-445, ECF No. 52-1. On December 8, 2009, the

plaintiff limited the scope of this request by notifying the CIA that it could “limit [its] search for

requests submitted by Michael Ravnitzky to only requests submitted in 2006 and 2009” and that

it could “limit [its] search to the last four years in which requests were received from [each]

requester.” See Third Lutz Decl. Ex. A. On September 22, 2010, the CIA produced seventy

records to the plaintiff in part with redactions made pursuant to FOIA Exemptions 3 and/or 6,

and the CIA also notified the plaintiff that the CIA was withholding seventy-four other

responsive records in their entirety pursuant to FOIA Exemptions 1, 3, and/or 5. See Third Lutz

Decl. Ex. B at 1. In Count One of No. 11-445, the plaintiff challenges all of the CIA’s

withholding determinations made under FOIA Exemptions 1, 3, and/or 5. See 445 FAC ¶¶ 10–

17; Mem. in Supp. Defs.’ Mot. Summ. J. on Counts 1, 2, 3, 5, 6, 7, 8, 9, 10, and 13 (“Defs.’ First

445 Mem.”) at 2, No. 11-445, ECF No. 29; Pl.’s Opp’n to Defs.’ Mot. Summ. J. on Counts 1, 2,

3, 5, 6, 7, 8, 9, 10, and 13 (“Pl.’s First 445 Opp’n”) at 23 n.19, No. 11-445, ECF No. 33.

8

Also on December 1, 2009, the plaintiff submitted FOIA requests to the Defense

Intelligence Agency (“DIA”) and the Office of the Director of National Intelligence (“ODNI”)

for substantially the same category of records sought in the December 1, 2009 FOIA request to

the CIA. The only difference was that, instead of records containing processing notes from “CIA

personnel or contractors,” the request to the DIA sought processing notes from “DIA personnel

or contractors” and the request to the ODNI sought processing notes from “NSA personnel or

contractors.” See Decl. of John F. Hackett (Oct. 1, 2012) (“Hackett Decl.”) Ex. A at 1, No. 11-

445, ECF No. 29-8; Decl. of Alesia Y. Williams (Oct. 1, 2012) (“First Williams Decl.”) Ex. A at

1, No. 11-445, ECF No. 53-1. The plaintiff also narrowed its processing notes requests to the

DIA and the ODNI on December 8, 2009 in the same manner it limited its processing notes

request to the CIA. See Hackett Decl. Ex. B, No. 11-445, ECF No. 29-8; First Williams Decl.

Ex. B, No. 11-445, ECF No. 53-1.

The ODNI produced responsive records to the plaintiff on May 27, 2010 and June 21,

2010, releasing a total of thirty-four pages, in part, with redactions made pursuant to FOIA

Exemptions 2, 3, 5, and 6. See Hackett Decl. ¶¶ 11–12, No. 11-445, ECF No. 29-8. The DIA

produced additional responsive records to the plaintiff in six separate releases from July 25, 2012

to September 28, 2012. See First Williams Decl. ¶¶ 8–13, No. 11-445, ECF No. 29-12. In total,

the DIA released 86 records in full, released 215 records in part, and withheld 45 records in full,

with withholdings made pursuant to FOIA Exemptions 3, 5, and/or 6. See id.; see also First

Williams Decl. Exs. D–I, ECF No. 53-1. In Counts Five and Six of No. 11-445, the plaintiff

challenges the DIA’s and the ODNI’s withholding determinations, respectively, made under

9

FOIA Exemptions 1, 2, 3, 5, and 6. See 445 FAC ¶¶ 38–54; Defs.’ First 445 Mem. at 4–6; Pl.’s

First 445 Opp’n at 6, 17–22, 24. 7

B. 2010 FOIA Requests

1. Counts Seven, Nine, and Ten in No. 11-445: February 6, 2010 FOIA

Requests to the CIA, State Department, and NSA

On February 6, 2010, the plaintiff submitted three substantially identical FOIA

requests—one to the CIA, one to the State Department, and one to the National Security Agency

(“NSA”). The request to the CIA sought “all current training handbooks, manuals, guidelines,

checklists, worksheets, and similar documents provided to [CIA] FOIA and Privacy Act analysts

(both agency employees and contractors).” See Third Lutz Decl. Ex. G at 1, No. 11-445, ECF

No. 52-1. The plaintiff’s requests to the State Department and the NSA were identical, except

that they sought training materials provided to State Department and NSA FOIA and Privacy Act

analysts, respectively. See Decl. of Sheryl L. Walter (Oct. 1, 2012) (“First Walter Decl.”) Ex. 1,

No. 11-445, ECF No. 29-10; Decl. of Pamela N. Phillips (Sept. 28, 2012) (“Phillips Decl.”) Att.

1, No. 11-445, ECF No. 29-13. All three requests also limited the scope of the request to

“documents in current use as of 6 February 2010.” See Third Lutz Decl. Ex. G at 1; Walter Decl.

Ex. 1, at 1; Phillips Decl. Ex. 1, at 1.

The first agency to issue a response to the plaintiff’s requests was the CIA. On May 26,

2010, the CIA issued a final response to the plaintiff, in which it released two documents in full

and withheld twenty-nine other responsive documents in full pursuant to FOIA Exemptions 1, 2,

3, and/or 5. See Third Lutz Decl. ¶ 11, No. 11-445, ECF No. 29-1. In Count Seven of No. 11-

7

The DIA did not originally claim FOIA Exemption 1 in its release letters to the plaintiff, see Williams Decl. Exs.

D–I, but the DIA does assert Exemption 1 in its Vaughn index, see, e.g., Williams Decl. ¶ 19 (“[D]ocuments

numbered V-274, V-276, and V-287 in the Vaughn index contain classified information . . . . and it is appropriately

withheld under FOIA exemption (b)(1).”).

10

445, the plaintiff challenges all of the CIA’s withholding determinations under FOIA

Exemptions 1, 2, 3, and/or 5. See 445 FAC ¶¶ 55–61; Defs.’ First 445 Mem. at 7.

The next agency to respond to the plaintiff’s February 6, 2010 FOIA requests was the

NSA. On April 22, 2011, the NSA issued a final response to the plaintiff, in which it released, in

part, over 500 pages of responsive records, with redactions made pursuant to FOIA Exemptions

1, 3, 5, 6, and/or 7; the NSA also withheld one document in its entirety pursuant to FOIA

Exemption 5. See Phillips Decl. ¶ 7; Phillips Decl. Att. 3, No. 11-445, ECF No. 29-13. In Count

Ten of No. 11-445, the plaintiff challenges the adequacy of the NSA’s search efforts in

responding to the February 6, 2010 FOIA request, and in particular the plaintiff challenges the

NSA’s failure to locate templates that are responsive to the request. See 445 FAC ¶¶ 73–77;

Defs.’ First 445 Mem. at 10.

The State Department was the final agency to respond to the plaintiff’s February 6, 2010

FOIA requests. The State Department produced responsive records to the plaintiff in two initial

releases on October 20, 2011 and January 26, 2012. See First Walter Decl. ¶¶ 8–9. In these two

initial releases, the State Department produced a total of 103 records in whole or in part, with

redactions made to seven documents pursuant to FOIA Exemptions 3 and/or 6. See First Walter

Decl. Exs. 5–6, No. 11-445, ECF No. 29-10. By e-mail dated February 4, 2012, the plaintiff

requested that the State Department search for certain records referenced in a document

produced in the first two State Department releases. See First Walter Decl. Ex. 8, No. 11-445,

ECF No. 29-10. In response to this request, the State Department conducted further searching,

and on March 9, 2012 released sixteen responsive records to the plaintiff, in whole or in part.

See First Walter Decl. Ex. 9, No. 11-445, ECF No. 29-10. By letter dated September 26, 2012,

11

after “a further search,” the State Department released one more responsive document to the

plaintiff in full. See First Walter Decl. Ex. 10, No. 11-445, ECF No. 29-10.

These four productions, totaling the release, in whole or in part, of 120 records, however,

were not the final correspondence from the State Department in response to the plaintiff’s FOIA

request. On March 1, 2013, the State Department’s Bureau of Diplomatic Security responded to

the plaintiff’s February 6, 2010 FOIA request, releasing twenty-six responsive records which had

not been previously released. See Notice of Recent Development Regarding Count 9, at 1, No.

11-445, ECF No. 49. According to the State Department, this was “an inadvertent release of

records,” which occurred because “at some point in the processing of Plaintiff’s FOIA request, it

was mistakenly sent to [the Bureau of Diplomatic Security].” See Third Decl. of Sheryl L.

Walter (June 18, 2013) (“Third Walter Decl.”) ¶ 3, No. 11-445, ECF No. 51-1. In Count Nine of

No. 11-445, the plaintiff challenges three aspects of the State Department’s response to its

February 6, 2010 FOIA request: (1) the withholding of certain information from one responsive

record pursuant to FOIA Exemption 3; (2) the adequacy of the State Department’s search efforts;

and (3) the failure of the State Department to release responsive records in an electronic format.

See 445 FAC ¶¶ 68–72; Defs.’ First 445 Mem. at 9.

2. Counts Two and Three in No. 11-445: February 9, 2010 FOIA Requests

to the CIA

On February 4, 2010, the CIA informed the plaintiff that, with respect to his December 1,

2009 FOIA request for FOIA processing notes related to previous FOIA requests, the CIA could

not retrieve FOIA requests by an organization’s name, but only by a person’s name. See Third

Lutz Decl. Ex. C at 1, No. 11-445, ECF No. 52-1. In response, the plaintiff submitted a letter to

the CIA on February 9, 2010, asking the CIA to search for records related to specific previous

FOIA requests submitted by individuals associated with four organizations, including NSC and

12

the James Madison Project (“JMP”). Id. With respect to JMP, the plaintiff requested that the

CIA search for records of processing notes related to twenty-seven specific FOIA requests

submitted by Mark Zaid, Bradley Moss, and Kelly McClanahan. Id. Likewise, with respect to

NSC, the plaintiff requested that the CIA search for records of processing notes related to seven

specific FOIA requests submitted by Kelly McClanahan. See Third Lutz Decl. Ex. C at 1. The

CIA considered these two new FOIA requests and assigned each of them a separate request

identifier number. See Third Lutz Decl. ¶¶ 9–10.

On July 30, 2010, the CIA provided a final response to the plaintiff’s request regarding

previous FOIA requests submitted by Kelly McClanahan on behalf of NSC. See Third Lutz

Decl. Ex. F, No. 11-445, ECF No. 52-1. The CIA released three responsive documents in full

and thirty responsive documents in part, with redactions made pursuant to FOIA Exemptions 3,

5, and/or 6. Third Lutz Decl. ¶ 10. The CIA also withheld seventeen responsive documents in

full pursuant to FOIA Exemptions 1, 3, 5, and/or 6. Id. In Count Three of No. 11-445, the

plaintiff challenges the CIA’s decision to withhold information responsive to this request

pursuant to FOIA Exemptions 1, 3, and 5. See 445 FAC ¶¶ 25–31; Defs.’ First 445 Mem. At 4;

Pl.’s First 445 Opp’n at 23 n.19. On September 29, 2010, the CIA provided a final response to

the plaintiff’s request regarding previous FOIA requests submitted by Mark Zaid, Bradley Moss,

and Kelly McClanahan on behalf of JMP. See Third Lutz Decl. Ex. D, No. 11-445, ECF No. 52-

1. The CIA produced 14 responsive documents in full and 106 responsive documents in part,

with redactions made pursuant to FOIA Exemptions 3, 5, and/or 6. Third Lutz Decl. ¶ 9. The

CIA also withheld 215 responsive documents in full pursuant to FOIA Exemptions 1, 3, and/or 5.

Id. In Count Two of No. 11-445, the plaintiff challenges the CIA’s decision to withhold

13

information responsive to this request pursuant to FOIA Exemptions 1, 3, and 5. See 445 FAC

¶¶ 18–24; Defs.’ First 445 Mem. At 3; Pl.’s First 445 Opp’n at 23 n.19.

3. Count Seventeen in No. 11-444: May 4, 2010 FOIA Requests to the CIA

By letter dated May 4, 2010, the plaintiff submitted a FOIA request to the CIA for two

categories of records: (1) “The 15 FOIA requests received by the [CIA] during Fiscal Year 2008

that were classified as ‘full denials’ because the ‘Records were not Reasonably Described’ in . . .

[the CIA’s] 2008 Annual Report,” and (2) “The 18 FOIA requests received by the CIA during

Fiscal Year 2006 that were classified as ‘full denials’ on the grounds of ‘records not reasonably

described’ in . . . [the CIA’s] 2006 Annual Report.” See First Lutz Decl. Ex. Y at 1, No. 11-444,

ECF No. 20-4. Also on May 4, 2010, the plaintiff submitted a second FOIA request to the CIA,

which sought three other categories of similar records: (1) “The 510 FOIA requests received by

the [CIA] during Fiscal Year 2009 that were classified as ‘full denials’ because they were

considered ‘Improper FOIA Requests for Other Reasons’ in . . . [the CIA’s] 2009 Annual

Report,” (2) “The 290 FOIA requests received by the CIA during Fiscal Year 2008 that were

classified as ‘full denials’ because they were considered ‘Improper FOIA Requests for Other

Reasons’ in . . . [the CIA’s] 2008 Annual Report,” and (3) “The 79 FOIA requests received by

the CIA during Fiscal Year 2006 that were classified as ‘full denials’ because they were

considered ‘not proper FOIA requests for some other reason’ in . . . [the CIA’s] 2006 Annual

Report.” First Lutz Decl. Ex. Z at 1, No. 11-444, ECF No. 20-4. For both of these requests, the

plaintiff specified that “[o]nly the initial request letters and the return CIA correspondence

stating that the requests do not reasonably describe the records sought should be considered

responsive to this request.” First Lutz Decl. Exs. Y; see id. Ex. Z.

On August 7, 2010, the plaintiff’s counsel sent a facsimile to the CIA stating “it would

probably be easier to just consolidate the two requests [submitted on May 4, 2010]” and “I would

14

not object if you chose to combine them and treat them as a single request.” First Lutz Decl. Ex.

AA, No. 11-444, ECF No. 20-4. Hence, on November 17, 2010, the CIA informed the plaintiff

that the CIA was combining the two FOIA requests sent on May 4, 2010 into a single request.

See First Lutz Decl. Ex. BB, No. 11-444, ECF No. 20-4. On August 31, 2011, the CIA provided

a final response regarding this combined FOIA request, in which it released five responsive

documents in full, released 1,010 responsive documents in part with redactions made pursuant to

FOIA Exemptions 3, 5, and/or 6, and withheld three documents in full pursuant to FOIA

Exemptions 3 and/or 6. See First Lutz Decl. Ex. CC at 2, No. 11-444, ECF No. 20-4; First Lutz

Decl. ¶ 68. 8 After the plaintiff requested by e-mail to the DOJ that the CIA confirm the totality

of its production, the CIA provided ten additional responsive documents in part with redactions

made pursuant to FOIA Exemptions 3 and 6. See First Lutz Decl. ¶ 69. In Count Seventeen of

No. 11-444, the plaintiff challenges the CIA’s decision to withhold information responsive to

this combined request pursuant to FOIA Exemptions 3 and 5. See 444 FAC ¶¶ 87–93; Def.’s

First 444 Mem. at 8; Pl.’s Opp’n to Def.’s Mot. Summ. J. on Counts 1, 8, 9, 10, 17, 18, and 20

(“Pl.’s First 444 Opp’n”) at 30–35, No. 11-444, ECF No. 26. In Count Seventeen, the plaintiff

also challenges the failure of the CIA to release responsive records in an electronic format. See

Pl.’s First 444 Opp’n at 39–40.

4. Count Three in No. 11-443: May 12, 2010 FOIA Request to the CIA

On May 12, 2010, the plaintiff submitted a FOIA request to the CIA, which sought “all

Tables of Contents (‘TOCs’) from the [CIA] in-house journal Studies in Intelligence.” See Decl.

of Martha M. Lutz (Aug. 8, 2012) (“Second Lutz Decl.”) Ex. A at 1, No. 11-443, ECF No. 27-1.

Via telephone on June 4, 2010, the plaintiff clarified that it was requesting “all classified ‘TOCs,’

8

The CIA did not claim FOIA Exemption 5 in its August 31, 2011 final response, see First Lutz Decl. Ex. CC at 2,

but the CIA is now claiming FOIA Exemption 5 in this litigation, see First Lutz Decl. ¶ 68.

15

and any unclassified ‘TOCs,’ that were not available on the CIA website.” Second Lutz Decl.

Ex. B at 1, No. 11-443, ECF No. 27-1. On December 5, 2011, the CIA provided a final response

to the plaintiff’s May 12, 2010 FOIA request, releasing 43 responsive documents in full and 131

responsive documents in part, with redactions made pursuant to FOIA Exemptions 1 and/or 3.

See Second Lutz Decl. Ex. C at 1, No. 11-443, ECF No. 27-1. By e-mail on December 30, 2011,

the plaintiff notified the CIA’s counsel that it believed there were several records missing from

the CIA’s production. See Second Lutz Decl. ¶ 9, No. 11-443, ECF No. 27-1. In response, the

CIA conducted a supplemental search and, by letters dated February 7, 2012 and February 14,

2012, the CIA released to the plaintiff twenty-nine additional responsive TOCs, in part, with

redactions made pursuant to FOIA Exemptions 1 and 3. See Second Lutz Decl. ¶ 9; Second Lutz

Decl. Exs. D–E, No. 11-443, ECF No. 27-1. In its February 7, 2012 communication, the CIA

also released to the plaintiff certain information that had been redacted from previously released

documents. See Second Lutz Decl. Ex. D at 2. In Count Three of No. 11-443, the plaintiff

challenges the CIA’s withholding of information responsive to the May 12, 2010 FOIA request

under FOIA Exemptions 1 and 3. See Compl. (“443 Compl.”) ¶¶ 29–33, No. 11-443, ECF No.

1; Mem. in Supp. Def.’s Mot. Summ J. on Count Three (“Def.’s First 443 Mem.”) at 1, ECF No.

27. 9

5. Count Nine in No. 11-444: May 13, 2010 FOIA Request to the CIA

By letter dated May 13, 2010, the plaintiff submitted a FOIA request to the CIA, which

sought “a representative sample of [CIA] analytical reports and memoranda presenting

9

The plaintiff also originally raised a challenge to the adequacy of the CIA’s search in response to the FOIA request

at issue in Count Three in No. 11-443. See Pl.’s In Camera Opp’n to Def.’s Mot. Summ. J. on Count Three (“Pl.’s

First 443 Opp’n”) at 3–4, 20, No. 11-443, ECF No. 58. Specifically, based on certain discrepancies between the

produced articles and the articles present on the CIA’s website, the plaintiff challenged the CIA’s “refusal to search

for the full Table of Contents for the June 2009 issue [of Studies in Intelligence] and the correct Table of Contents

for the Summer 1973 issue.” Id. at 20. In a subsequent filing, however, the plaintiff notified the Court that it

“withdraws its challenge to the adequacy of [the CIA’s] search” in No. 11-443. See Notice of Clarification at 2, No.

11-443, ECF No. 60.

16

psychological analyses or profiles of foreign government officials, terrorist leaders, international

criminals, business figures, and other intelligence targets prepared by the Medical and

Psychological Analysis Center (‘MPAC’) or its predecessor Office of Leadership Analysis

(‘OLA’).” First Lutz Decl. Ex. M, No. 11-444, ECF No. 20-3. In this letter, NSC provided

“guidelines” to the CIA regarding “what we consider a ‘representative sample,’” which included

(1) “[o]nly final official reports or memoranda that discuss an MPAC/OLA analyst’s conclusions

about a target’s psychology,” (2) “[n]o more than twenty reports/memoranda for each year,”

(3) “[f]our reports/memoranda for each year (unless less were created that year) for individuals

in each category of intelligence target,” and (4) “[r]easonable variety in the intelligence targets

wherever possible (e.g., foreign government officials should be from a variety of foreign

governments, terrorist leaders should be from different terrorist organizations, etc.).” Id. at 1–2.

As to the fourth guideline, NSC further stated that “[f]or the foreign government officials, we

would also appreciate if possible a variety of the type of officials (e.g., some heads of state, some

intelligence officials, some law enforcement officials, some financial officials, etc.).” Id. at 2.

The plaintiff’s letter also stated “[y]ou may limit your search to records created since 2000, but

we do not have any particular intelligence targets in mind, since the purpose of this information

is to analyze the style and methodology of the CIA’s leadership analysts.” Id. at 1.

The CIA provided a final response to the plaintiff’s request on June 23, 2010, stating

“[w]e cannot accept your FOIA request in its current form, because it would require the Agency

to perform an unreasonably burdensome search.” First Lutz Decl. Ex. N at 1, No. 11-444, ECF

No. 20-3. Citing “the breadth and lack of specificity of [NSC’s] request,” the CIA informed the

plaintiff that “[t]he FOIA does not provide a mechanism to perform research.” Id. The CIA also

“encourage[d] [NSC] to refine the scope of [its] request (such as including a narrower time frame

17

for, and more specific descriptions of, the information you seek) to enable [the CIA] to conduct a

reasonable search for responsive information.” Id. In Count Nine of No. 11-444, the plaintiff

contends that the CIA improperly refused to process this May 13, 2010 FOIA request. See 444

FAC ¶¶ 46–50; Pl.’s First 444 Opp’n at 16–18.

6. Count Eight in No. 11-444: July 5, 2010 FOIA Request to the CIA

On July 5, 2010, the plaintiff submitted a FOIA request to the CIA for “a record that

would indicate the ten individuals responsible for the most FOIA requests submitted (each) in

Fiscal Years 2008, 2009, and 2010.” See First Lutz Decl. Ex. K at 1, No. 11-444, ECF No. 20-2.

“In other words,” the plaintiff continued, “we seek a list, index, printout, or similar document

from which we could determine which individual submitted the most FOIA requests each year,

which individual submitted the second most FOIA requests each year, and so forth down to the

tenth most prolific requester.” Id. In addition to (1) an index of the ten most prolific FOIA

requesters, the plaintiff also proposed to the CIA three alternative means by which to obtain the

same information: (2) “[a]n index including all requesters for each year,” (3) “FOIA request

letters from the ten most prolific requesters for each year,” or (4) “[a]ll FOIA request letters

submitted to the CIA for each year.” Id. at 1–2. On July 22, 2010, the CIA responded to this

request, stating “[w]e . . . have determined that our record systems are not configured in a way

that would allow us to perform a search reasonably calculated to lead to the responsive record

without an unreasonable effort.” First Lutz Decl. Ex. L at 1, No. 11-444, ECF No. 20-3. As a

result, the CIA informed the plaintiff “we must decline to process this request.” Id.

On February 29, 2012, however, “the CIA advised plaintiff that it reconsidered [the July

5, 2010 FOIA request],” and “advised that it could process plaintiff’s fourth option, i.e., all FOIA

requests submitted to the Agency for each of the three requested years, in paper form.” Decl. of

Martha M. Lutz (Mar. 18, 2013) (“Seventh Lutz Decl.”) ¶ 7, No. 11-444, ECF No. 43-1. The

18

CIA also “determined that NSC constituted an ‘all other’ requester for fee category purposes and

stated that . . . plaintiff would be required to pay the duplication costs associated with processing

the request, which were estimated to exceed $950.” Id. In connection with these duplication

costs, “[t]he Agency advised plaintiff that a commitment to pay fees and an advance payment of

$250 were required ‘prior to the processing of [its] request.’” Id. (emphasis in original). Finally,

the CIA’s letter stated that “if the Agency did not received the fee commitment and advance

payment within 45 days it would administratively close the request.” Id. NSC never provided a

fee commitment or an advance payment, and therefore the CIA closed the request. Id. In Count

Eight of No. 11-444, the plaintiff challenges the CIA’s refusal “to produce the record requested

as ‘option 2’ in NSC’s request,” i.e., “an index including all requesters for each year.” See Pl.’s

Opp’n to Def.’s Mot. Summ. J. on Counts Eight & Twenty-One (“Pl.’s Second 444 Opp’n”) at 3-

4, No. 11-444, ECF No. 46; see also 444 FAC ¶¶ 41–45.

7. Count One in No. 11-444: August 8, 2010 FOIA Requests to the CIA

By letters dated August 8, 2010, the plaintiff submitted four FOIA requests to the CIA,

seeking “a database listing of all the FOIA requesters from FY 2008–present that [the CIA has]

classified as” either “educational or scientific,” “commercial,” “all other,” or “news media.” See

First Lutz Decl. Exs. A–D, No. 11-444, ECF No. 20-2. Each request sought a database listing as

to each of the four fee requester categories. See id. By letters dated September 30, 2010, the

CIA refused to process these requests, stating that “[t]he FOIA does not require federal agencies

to create a record, collect information, conduct research, or analyze data.” See First Lutz Decl.

Exs. E–H, No. 11-444, ECF No. 20-2. By facsimile dated October 2, 2010, the plaintiff

administratively appealed the CIA’s refusal to process these four FOIA requests, contending “the

CIA has already tacitly admitted that it possesses the ability to sort its FOIA database by

requester category, as evidenced by the publication in its FOIA Electronic Reading Room of the

19

FY 2003 ‘commercial’ requesters.” See First Lutz Decl. Ex. I at 1, No. 11-444, ECF No. 20-2.

The CIA responded on October 21, 2010, stating for each of the four FOIA requests that, “since

we did not provide you with appeal rights, we cannot accept your appeal.” First Lutz Decl. Ex.

J, No. 11-444, ECF No. 20-2. In Count One of No. 11-444, the plaintiff challenges the CIA’s

refusal to process its August 8, 2010 FOIA requests. See 444 FAC ¶¶ 5–10; Pl.’s First 444

Opp’n at 10–14.

C. 2011 FOIA Requests

1. Count Eighteen in No. 11-444: January 26, 2011 FOIA Request to the

CIA

By letter dated January 26, 2011, the plaintiff submitted a FOIA request to the CIA

seeking “a copy of all [CIA] records pertaining to the search tools and indices available to the

Office of Information Management Services (‘IMS’) for conducting searches of its own records

in response to FOIA requests.” See First Lutz Decl. Ex. Q at 1, No. 11-444, ECF No. 20-3. The

plaintiff clarified later in this request that it was seeking “records that describe or discuss the

search tools and indices that the IMS (as a CIA component) can choose between when devising a

search strategy for IMS records.” Id. The plaintiff further specified that the request was “limited

to only those search tools and indices that would be personally used by IMS personnel to search

IMS records systems.” Id. Finally, the plaintiff specified two categories of records that would

be responsive to the request: (1) “Records which describe the search tools and indices,” and (2)

“The actual contents of the indices.” Id. On May 26, 2011, the CIA provided a final response to

the plaintiff’s request. See First Lutz Decl. Ex. S, No. 11-444, ECF No. 20-3. The CIA located

three documents responsive to the plaintiff’s request, one of which it released in full, and two of

which it released in part, with redactions made pursuant to FOIA Exemption 3. See id. In Count

Eighteen of No. 11-444, the plaintiff challenges three aspects of the CIA’s response to the

20

plaintiff’s January 26, 2011 FOIA request: (1) the decision to withhold information under FOIA

Exemption 3; (2) the adequacy of the CIA’s search efforts; and (3) the failure of the CIA to

release responsive records in an electronic format, as requested. See 444 FAC ¶¶ 94–98; Pl.’s

First 444 Opp’n at 24–26, 35–40.

2. Count Thirteen in No. 11-445: February 11, 2011 FOIA Request to the

CIA

On February 11, 2011, the plaintiff submitted a FOIA request to the CIA, which sought

“all [CIA] records associated with the administrative processing of [two specific FOIA requests],

which were referred to the CIA by the Federal Bureau of Investigation.” See Third Lutz Decl.

Ex. I at 1, No. 11-445, ECF No. 52-1. On October 7, 2011, the CIA provided a final response to

this request, releasing two responsive records in part, with redactions made pursuant to FOIA

Exemption 3, and withholding seven responsive records in full pursuant to FOIA Exemptions 3

and 5. See Third Lutz Decl. ¶ 12; Third Lutz Decl. Ex. J at 1, No. 11-445, ECF No. 52-1. In

Count Thirteen of No. 11-445, the plaintiff challenges the CIA’s decision to withhold responsive

information pursuant to FOIA Exemptions 3 and 5. See 445 FAC ¶¶ 88–92; Defs.’ First 445

Mem. at 10-11.

3. Count Ten in No. 11-444: February 16, 2011 FOIA Request to the CIA

Finally, by letter dated February 16, 2011, the plaintiff submitted a FOIA request to the

CIA, seeking “a copy of all [CIA] records pertaining to the IBM supercomputer ‘Watson.’” First

Lutz Decl. Ex. O at 1, No. 11-444, ECF No. 20-3. On March 2, 2011, the CIA responded to the

plaintiff that “[w]e cannot accept your FOIA request in its current form because it would require

the Agency to perform an unreasonably burdensome search.” See First Lutz Decl. Ex. P, No. 11-

444, ECF No. 20-3. Citing “the breadth and lack of specificity of [the plaintiff’s] request” and

“the way in which [the CIA’s] records systems are configured,” the CIA concluded that “the

21

Agency cannot conduct a reasonable search for information responsive to your request.” Id. The

CIA “encourage[d] [the plaintiff] to refine the scope of [its] request (such as contracts, if they

exist, which would explain records pertaining to ‘Watson’) to enable [the CIA] to conduct a

reasonable search for responsive information.” Id. In Count Ten of No. 11-444, the plaintiff

challenges the CIA’s refusal to process it February 16, 2011 FOIA request. See 444 FAC ¶¶ 51–

55; Pl.’s First 444 Opp’n at 19–24.

D. Facts Related to the Plaintiff’s Motion for Sanctions

In December 2011, an unidentified third party provided the plaintiff’s counsel with two

CIA documents, which counsel concluded may contain classified information. See Pl.’s Mot. to

Compel Production (“Pl.’s First Mot. to Compel”) at 1, No. 11-443, ECF No. 26. Since the

documents were ostensibly relevant to the plaintiff’s claim in Count Three of No. 11-443,

challenging the CIA’s withholding of responsive information from tables of contents for the

CIA’s in-house journal Studies in Intelligence, see supra Part I.B.4, plaintiff’s counsel contacted

government counsel for the CIA, who referred plaintiff’s counsel to the FBI. See Pl.’s First Mot.

to Compel at 1. In January 2012, an FBI field agent met with plaintiff’s counsel, at which time

plaintiff’s counsel signed a non-disclosure agreement as to any classified material contained in

the two CIA documents and also turned over paper and electronic versions of the two records to

the FBI. See id. at 2. In that meeting, plaintiff’s counsel requested that the FBI return to him

redacted versions of the two documents, with all classified information deleted. Id. In a later

meeting held in June 2012, the FBI informed plaintiff’s counsel that they would not be releasing

redacted versions of the documents to him. See id. Since plaintiff’s counsel wished to submit

the non-classified portions of the two documents to the Court, the plaintiff filed a motion on

August 3, 2012 to compel the CIA to “provid[e] [plaintiff’s counsel] with redacted copies” of the

two documents in question. See id. at 4. The CIA opposed the relief sought by the plaintiff,

22

contending that “[plaintiff’s counsel’s] alleged interactions with the FBI are well outside the

scope of this action” since “[t]he FBI is not a party to this case” and “the FBI’s interactions were

with [plaintiff’s counsel] in his individual capacity.” Def.’s Opp’n to Pl.’s Mot. to Compel at 1–

2, No. 11-443, ECF No. 28.

On August 15, 2012, the Court granted the plaintiff’s motion to compel over the CIA’s

objection and directed the CIA to provide the plaintiff “a copy of each of the two CIA documents

referenced in the plaintiff’s motion, if possible, with all classified information redacted

therefrom.” See Minute Order dated Aug. 15, 2012, No. 11-443. On September 3, 2012, the

plaintiff filed a motion, asking the Court “to compel CIA to comply with [the Court’s] earlier

Order.” See Pl.’s Mot. to Compel Compliance with Court’s 15 Aug. 2012 Order (“Pl.’s Second

Mot. to Compel”) at 2, No. 11-443, ECF No. 31. In that motion, the plaintiff stated that

“[i]nstead of redacting only the classified information,” the CIA “redacted all information it

considered exempt under [FOIA] Exemptions (b)(1) and/or (b)(3).” Id. at 1–2. Therefore, the

plaintiff asked the Court to order the CIA to produce “copies of these records with only the

classified information redacted, as the Court ordered.” Id. at 2. On September 21, 2012, the

Court granted the plaintiff’s motion in part and ordered the CIA to produce redacted versions of

the two documents to the plaintiff, clearly indicating on each document which portions of the

document were classified—and therefore redacted pursuant to FOIA Exemption 1—and which

portions were redacted pursuant to FOIA Exemption 3. See Order dated Sept. 21, 2012. The

Court did not order the CIA to release any information from these two documents that the CIA

believed were protected from disclosure by the CIA Act or by Executive Order 13,525 as

classified in the interest of national security.

23

The CIA produced redacted versions of the two documents as instructed, yet the parties

continued to disagree about whether the CIA had complied with the Court’s Order. See Joint

Status Report at 1, No. 11-443, ECF No. 35. Specifically, the plaintiff complained, on

September 3, 2012, that the CIA had marked certain information as being exempt under

Exemption 3, which the CIA’s Vaughn index had stated was classified, and vice-versa. See id. at

2–3. Plaintiff’s counsel had notified the CIA’s counsel of this inconsistency in an e-mail five

days before the plaintiff brought the issue to the attention of the Court. See Pl.’s Reply to Opp.

To Mot. To Compel Ex. D, No. 11-443, ECF No. 33-2 (Aug. 29, 2012 e-mail from plaintiff’s

counsel to CIA’s counsel stating “I think you must have [the classified material and the CIA Act

redactions] backwards”). The CIA, however, maintained that “[t]he documents the CIA

produced in response to the Court’s order reflect the current status of the information they

contain.” See Joint Status Report at 2. In light of the apparent discrepancy, the plaintiff once

again asked for relief, seeking an order directing the CIA “to take whatever steps are necessary

to make its redactions in these releases consistent with its previous presentations to the Court.”

Id. at 4.

To resolve this ongoing dispute, the Court held a status conference on October 12, 2012.

At that status conference, plaintiff’s counsel once again asserted that the CIA had gotten the two

categories of redactions “backwards.” See Tr. of Status Conference (Oct. 12, 2012) at 13:1–2,

No. 11-443, ECF No. 69; see also id. at 16:9–12 (“[E]verything that is listed as classified in the

documents is listed as unclassified [in the Vaughn index]. It looks like it was a simple

administrative error.”). The CIA’s counsel, however, maintained once again that “we’ve clearly

identified for [plaintiff’s counsel] in our Vaughn index and in the two documents that we

produced pursuant to the Court’s order exactly what’s classified and what’s subject to the CIA

24

Act.” Id. at 19:15–19. The Court asked the CIA’s counsel in this regard: “Do you need to

update your Vaughn index?” to which he replied “I need to check with my client agency, but I

don’t believe so.” Id. at 26:18–21. The Court further stated, “[a]s officers of the court, if [the

CIA’s lawyers] find out that some information that’s been presented is incorrect, they have an

ongoing and continuing obligation to correct themselves.” Id. at 26:1–4. Following the October

12, 2012 status conference, and based on CIA counsel’s representations that the redactions were

correctly designated, the Court entered a minute order stating that “the plaintiff is entitled to rely

on the designations of information in the two . . . indices at issue, as provided by the defendant,

regarding whether redacted information in those documents is either classified or subject to

protection under the CIA Act.” Minute Order dated Oct. 12, 2012, No. 11-443.

On October 22, 2012, the CIA submitted a notice to the Court, stating that “[i]n [the

CIA’s] earlier production, redactions were marked with either a ‘1’ or ‘2,’ which appears to have

created some confusion as to whether the redacted information was withheld because it is

classified, subject to the CIA Act, or both.” See Notice at 1, No. 11-443, ECF No. 40. Thus,

ostensibly “[i]n order to clarify the issue and provide Plaintiff’s counsel with clear documents

upon which he can rely . . . [the CIA] now produced copies of the two records with each

redaction marked clearly as ‘Classified’ or ‘CIA Act’ protected.” Id. The CIA stated that it was

“hopeful the updated marking will resolve any lingering confusion.” Id. at 1. In the versions of

the two documents attached to the CIA’s October 22, 2012 notice, however, the CIA had

reversed its designations, as compared to its September 27, 2012 filing. Compare ECF Nos. 35-

1, 35-2, with ECF Nos. 40-1, 40-2. The CIA’s notice did now acknowledge that its previous

representations had been in error but, just as plaintiff’s counsel had warned two months earlier,

25

information that had earlier been marked as classified was now marked as withheld under the

CIA Act, and vice-versa. See id.

As a result, the plaintiff filed a motion for sanctions against the CIA, contending that the

CIA had “engaged in an extended campaign of misrepresentation to both [the plaintiff] and the

Court regarding the nature of the information it redacted from the two documents at issue.” See

Pl.’s Mot. for Sanctions at 1, No. 11-443, ECF No. 50. The CIA opposed the motion and

submitted, at the Court’s direction, two sworn declarations explaining what had caused the CIA

mistakenly for weeks to defend the accuracy of its designations. Specifically, the CIA’s chief of

its Litigation Support Unit, Martha Lutz, stated that the CIA’s error “was the product of internal

miscommunication rather than bad faith.” See Decl. of Martha M. Lutz (Feb. 25, 2013) (“Sixth

Lutz Decl.”) ¶ 4, No. 11-443, ECF No. 61-1. Ms. Lutz explained that, when the CIA’s

information review officer (“IRO”) reviewed the two documents in question, she used a notation

system in which she wrote “(b)(3) methods” in the margins of the documents next to certain

redacted information. See id. ¶ 7. These notations were intended to convey that the specified

redactions were protected under the National Security Act as classified intelligence sources or

methods—and thus also protected by FOIA Exemption 1 as classified information—but the

CIA’s counsel “interpreted this notation system to mean that redactions marked . . . as ‘(b)(3)

methods’ were those protected by FOIA Exemption (b)(3)” under the CIA Act. See id. ¶¶ 7–8.

“Based on this misunderstanding, the CIA attorney incorrectly cited some of the justifications for

redacting the material to the DOJ attorney, who in turn shared that information with plaintiff.”

Id. ¶ 9.

E. Procedural History

The plaintiff filed the Complaints in each of these three actions on February 28, 2011,

and, shortly thereafter, filed a First Amended Complaint in Nos. 11-444 and 11-445 on March

26

21, 2011. On May 20, May 27, and June 3, 2011, the CIA filed partial motions to dismiss in No.

11-443, 11-444, and 11-445, respectively. These three motions, filed pursuant to Federal Rules

of Civil Procedure 12(b)(1) and 12(b)(6), collectively moved for dismissal of twenty-five of the

forty-five claims originally alleged by the plaintiff, and the motions became ripe on July 21,

2011. While these three motions to dismiss were pending, the Court ruled on ten other, non-

dispositive motions, including motions to stay, to compel, and to bifurcate.

On October 17, 2012, in a lengthy opinion, the Court granted in part and denied in part

the CIA’ three partial motions to dismiss. See NSC I, 898 F. Supp. 2d 233. Specifically, the

Court dismissed all but three of the plaintiff’s twenty-four policy-or-practice claims—including

all of the plaintiff’s claims under the Mandamus Act and the Administrative Procedure Act. See

id. at 290. In addition to denying the government’s motion to dismiss with respect to three of the

plaintiff’s policy-or-practice claims (the Assignment of Rights Policy, the Cut-Off Date Policy,

and Document-Level Exemption Policy), the Court also denied the government’s motion to

dismiss with respect to Count One in No. 11-443, which challenged the CIA’s refusal to process

a FOIA request that was assigned to the plaintiff by an organization called the James Madison

Project. See id. at 290–91.

On March 21, 2013, this Court stayed all three actions until all dispositive motions were

fully briefed. Between December 20, 2011 and May 17, 2013, a total of eight motions or cross-

motions for summary judgment were filed across these three related actions by all parties. The

last of these motions became ripe on June 11, 2013. Additionally, on November 21, 2012, the

plaintiff filed a motion for leave to file a second amended complaint in No. 11-445, and on

January 11, 2013, the plaintiff filed a motion for sanctions in No. 11-443. Thus, currently

pending before the Court in these related actions are ten motions: eight motions or cross-motions

27

for summary judgment, one motion for leave to file a second amended complaint, and one

motion for sanctions. For the reasons discussed below, the Court grants in part and denies in part

the defendants’ six motions for summary judgment, grants the plaintiff’s cross-motions for

summary judgment, denies the plaintiff’s motion for leave to file a second amended complaint,

and denies the plaintiff’s motion for sanctions. 10

II. LEGAL STANDARDS

A. FOIA

Congress enacted the FOIA, 5 U.S.C. § 552, “‘to pierce the veil of administrative secrecy

and to open agency action to the light of public scrutiny.’” Am. Civil Liberties Union v. U.S.

Dep’t of Justice, 655 F.3d 1, 5 (D.C. Cir. 2011) (quoting Dep’t of the Air Force v. Rose, 425 U.S.

352, 361 (1976)). The Supreme Court has explained that the FOIA is “a means for citizens to

know ‘what their Government is up to.’ This phrase should not be dismissed as a convenient

formalism. It defines a structural necessity in a real democracy.” Nat’l Archives & Records

Admin. v. Favish, 541 U.S. 157, 171–172 (2004) (citation and internal quotation marks omitted).

“The basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a

democratic society, needed to check against corruption and to hold the governors accountable to

the governed.” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978). As a result, the

FOIA requires federal agencies to release all records responsive to a request for production. See

5 U.S.C. § 552(a)(3)(A). Federal courts are authorized under the FOIA “to enjoin the agency

from withholding agency records and to order the production of any agency records improperly

withheld from the complainant.” Id. § 552(a)(4)(B).

10

In support or opposition to these ten pending motions, the six agency defendants have collectively submitted a

total of nineteen sworn declarations. These include eleven declarations from the CIA (including eight separate

declarations authored by Martha M. Lutz), three declarations from the State Department, two declarations from the

DIA, and one declaration each from the DOJ, ODNI, and NSA.

28

This strong interest in transparency must be tempered, however, by the “legitimate

governmental and private interests [that] could be harmed by release of certain types of

information.” United Techs. Corp. v. U.S. Dep’t of Def., 601 F.3d 557, 559 (D.C. Cir. 2010)

(internal quotation marks omitted); see also Critical Mass Energy Project v. Nuclear Regulatory

Comm’n, 975 F.2d 871, 872 (D.C. Cir. 1992) (en banc). Accordingly, Congress included nine

exemptions permitting agencies to withhold information from FOIA disclosure. See 5 U.S.C.

§ 552(b). “These exemptions are explicitly made exclusive, and must be narrowly construed.”

Milner v. Dep’t of the Navy, 131 S. Ct. 1259, 1262 (2011) (citations and internal quotation marks

omitted); see also Pub. Citizen, Inc. v. Office of Mgmt. & Budget, 598 F.3d 865, 869 (D.C. Cir.

2010) (“FOIA allows agencies to withhold only those documents that fall under one of nine

specific exemptions, which are construed narrowly in keeping with FOIA’s presumption in favor

of disclosure.” (citations omitted)). When a FOIA requester properly exhausts its administrative

remedies, it may file a civil action challenging an agency’s response to its request. See 5 U.S.C.

§ 552(a)(4)(B); Wilbur v. CIA, 355 F.3d 675, 677 (D.C. Cir. 2004). Once such an action is filed,

the agency generally has the burden of demonstrating that its response to the plaintiff’s FOIA

request was appropriate.

When an agency’s response to a FOIA request is to withhold responsive records, either in

whole or in part, the agency “bears the burden of proving the applicability of claimed

exemptions.” Am. Civil Liberties Union v. U.S. Dep’t of Def. (“ACLU/DOD”), 628 F.3d 612,

619 (D.C. Cir. 2011). “The government may satisfy its burden of establishing its right to

withhold information from the public by submitting appropriate declarations and, where

necessary, an index of the information withheld.” Am. Immigration Lawyers Ass’n v. U.S. Dep’t

of Homeland Sec., 852 F. Supp. 2d 66, 72 (D.D.C. 2012) (citing Vaughn v. Rosen, 484 F.2d 820,

29

827–28 (D.C. Cir. 1973)). “If an agency’s affidavit describes the justifications for withholding

the information with specific detail, demonstrates that the information withheld logically falls

within the claimed exemption,” and “is not contradicted by contrary evidence in the record or by

evidence of the agency’s bad faith, then summary judgment is warranted on the basis of the

affidavit alone.” ACLU/DOD, 628 F.3d at 619. “Ultimately, an agency’s justification for

invoking a FOIA exemption is sufficient if it appears ‘logical or ‘plausible.’” Id. (internal

quotation marks omitted) (quoting Larson v. Dep’t of State, 565 F.3d 857, 862 (D.C. Cir. 2009)).

When a requester challenges an agency’s response based on the adequacy of the search

performed, “[t]o prevail on summary judgment . . . the defending ‘agency must show beyond

material doubt . . . that it has conducted a search reasonably calculated to uncover all relevant

documents.’” Morley v. CIA, 508 F.3d 1108, 1114 (D.C. Cir. 2007) (quoting Weisberg v. U.S.

Dep’t of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983)). “In order to obtain summary judgment

the agency must show that it made a good faith effort to conduct a search for the requested

records, using methods which can be reasonably expected to produce the information requested.”

Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir. 1990). “Summary judgment may be

based on affidavit, if the declaration sets forth sufficiently detailed information ‘for a court to

determine if the search was adequate.’” Students Against Genocide v. Dep’t of State, 257 F.3d

828, 838 (D.C. Cir. 2001) (quoting Nation Magazine v. U.S. Customs Serv., 71 F.3d 885, 890

(D.C. Cir. 1995)).

Finally, the D.C. Circuit has recognized that, separate from claims seeking relief for

specific requests made under the FOIA, requesting parties may also assert a “claim that an

agency policy or practice will impair the party’s lawful access to information in the future.”

Payne Enters., Inc. v. United States, 837 F.2d 486, 491 (D.C. Cir. 1988) (emphasis in original);

30

accord Newport Aeronautical Sales v. Dep’t of the Air Force, 684 F.3d 160, 164 (D.C. Cir.

2012). The Court in Payne held that a policy-or-practice claim is viable “[s]o long as an

agency’s refusal to supply information evidences a policy or practice of delayed disclosure or

some other failure to abide by the terms of the FOIA, and not merely isolated mistakes by agency

officials.” Payne, 837 F.2d at 491.

B. Summary Judgment

“‘FOIA cases typically and appropriately are decided on motions for summary

judgment.’” Georgacarakos v. FBI, 908 F. Supp. 2d 176, 180 (D.D.C. 2012) (quoting Defenders

of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009)). With respect to the

applicability of exemptions and the adequacy of an agency’s search efforts, summary judgment

may be based solely on information provided in the agency’s supporting declarations. See, e.g.,

ACLU/DOD, 628 F.3d at 619; Students Against Genocide, 257 F.3d at 838. With respect to

policy-or-practice claims, the moving party must establish “there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a).

Summary judgment is properly granted against a party who, “after adequate time for discovery

and upon motion, . . . fails to make a showing sufficient to establish the existence of an element

essential to that party’s case, and on which that party will bear the burden of proof at trial.”

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The burden is on the moving party to

demonstrate that there is an “absence of a genuine issue of material fact” in dispute. Id. at 323.

In ruling on a motion for summary judgment, the Court must draw all justifiable

inferences in favor of the nonmoving party and shall accept the nonmoving party’s evidence as

true. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The Court is only required to

consider the materials explicitly cited by the parties, but may on its own accord consider “other

materials in the record.” FED. R. CIV. P. 56(c)(3). For a factual dispute to be “genuine,” the

31

nonmoving party must establish more than “[t]he mere existence of a scintilla of evidence in

support of [its] position,” Liberty Lobby, 477 U.S. at 252, and cannot rely on “mere allegations”

or conclusory statements, see Veitch v. England, 471 F.3d 124, 134 (D.C. Cir. 2006); Greene v.

Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999); Harding v. Gray, 9 F.3d 150, 154 (D.C. Cir. 1993);

accord FED. R. CIV. P. 56(e). Rather, the nonmoving party must present specific facts that would

enable a reasonable jury to find in its favor. See, e.g., FED. R. CIV. P. 56(c)(1). “If the evidence

is merely colorable, or is not significantly probative, summary judgment may be granted.”

Liberty Lobby, 477 U.S. at 249–50 (citations omitted).

C. Leave to File Amended Complaint

Federal Rule of Civil Procedure 15 provides that, if more than twenty-one days have

passed since the filing of an original complaint, “a party may amend its [complaint] only with the

opposing party’s written consent or the court’s leave.” FED. R. CIV. P. 15(a)(2). “The court

should freely give leave when justice so requires.” Id. The D.C. Circuit has held that “it is an

abuse of discretion to deny leave to amend unless there is sufficient reason, such as ‘undue delay,

bad faith or dilatory motive[,] repeated failure to cure deficiencies by [previous] amendments[,]

or futility of amendment.” Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996) (internal

quotation marks omitted). In this regard, “[c]ourts will properly deny a motion to amend when it

appears that the plaintiff is using Rule 15 to make the complaint a moving target, to salvage a

lost case by untimely suggestion of new theories of recovery, [or] to present theories seriatim in

an effort to avoid dismissal.” Minter v. Prime Equip. Co., 451 F.3d 1196, 1206 (10th Cir. 2006)

(citations and internal quotation marks omitted). When a plaintiff seeks leave to amend its

complaint in “an attempt to evade the effect of [the Court’s] Memorandum Opinion and Order

dismissing the plaintiff’s claims against the moving defendants, the request will be denied.” See

Kurtz v. United States, No. 10-1270, 2011 WL 2457923, at *1 n.1 (D.D.C. June 20, 2011) (citing

32

Brown v. FBI, 744 F. Supp. 2d 120, 123 (D.D.C. 2010)); see also Becker v. District of Columbia,

258 F.R.D. 182, 185 (D.D.C. 2009) (“Waiting to move to amend until after the close of

discovery and after the filing of or ruling upon dispositive motions has been considered an undue

delay.”).

III. DISCUSSION

A wide variety of issues have been presented to the Court in the ten motions currently

pending. The Court will begin by explaining why it denies the plaintiff’s motion for leave to file

a second amended complaint in No. 11-445. The Court will then discuss the plaintiff’s Motion

for Sanctions, filed in No. 11-443. Third, the Court will address the plaintiff’s two remaining

policy-or-practice claims, which challenge the CIA’s Assignment of Rights Policy and

Document-Level Exemption Policy. Fourth, the Court will discuss the plaintiff’s claims relating

to the adequacy of the CIA’s, the State Department’s, and the NSA’s search efforts in response

to specific FOIA requests. Fifth, the Court will discuss the plaintiff’s claims regarding the CIA’s

refusal to process certain FOIA requests. Sixth, the Court will discuss the plaintiff’s claims

regarding the defendants’ decisions to withhold certain information pursuant to FOIA

Exemptions 1, 2, 3, 5, and 6. Seventh, the Court will discuss the plaintiff’s claim that the State

Department and the CIA should have provided it with electronic versions of responsive records.

Finally, the Court will determine whether the defendants have satisfied their burden to produce

all non-exempt, reasonably segregable material to the plaintiff.

A. Motion for Leave to Amend

In its motion for leave to file an amended complaint, the plaintiff seeks to make two

modifications to its First Amended Complaint in No. 11-445 “to correct deficiencies identified

by the Court in its 17 October 2012 Memorandum Opinion.” See Pl.’s Mot. for Leave to File a

Second Am. Compl. (“Pl.’s Amendment Mem.”) at 3, No. 11-445, ECF No. 36. First, as to

33

Count Fifteen—which challenged the CIA’s alleged policy of refusing to provide estimated dates

of completion for FOIA requests (the “Non-Provision of Completion Date Policy”)—the Court

dismissed that claim for lack of standing because the plaintiff had not alleged that it had been

subject to the policy in question. See NSC I, 898 F. Supp. 2d at 263. The plaintiff now seeks to

amend its complaint by adding allegations that it has become subject to that alleged policy, by

virtue of FOIA requests submitted after the Court issued its October 17, 2012 opinion. See Pl.’s

Amendment Mem. at 3; see also Proposed Second Am. Compl. ¶ 106, No. 11-445, ECF No. 36-

1 (alleging refusals to provide estimated dates of completion on October 18, October 24, and

November 3, 2012).

The Court concludes that this proposed amended must be denied for undue delay. See,

e.g., Firestone, 76 F.3d at 1208. As alleged in the plaintiff’s First Amended Complaint, the

plaintiff first became aware of the alleged Non-Provision of Completion Date Policy in

November 2010—approximately three months before filing the original complaint in No. 11-

445, and approximately four months before filing the First Amended Complaint in No. 11-445.

See 445 FAC ¶ 102. Further, the defendants specifically challenged the plaintiff’s standing to

bring this claim in its motion to dismiss, filed on June 3, 2011. See Mem. in Supp. Defs.’ Partial

Mot. to Dismiss at 6–9, No. 11-445, ECF No. 10-1. Thus, the plaintiff not only had ample

opportunity to allege that it had been subject to the alleged policy when it filed its first two

complaints in No. 11-445, it also had over sixteen months to seek an amendment to its complaint

after the CIA raised the standing issue in its motion to dismiss. The plaintiff chose not to do so,

waiting until five weeks after the Court ruled on the motion to dismiss to seek such an

amendment. This, in the Court’s view, constitutes undue delay.

34

With respect to Count Eighteen in No. 11-445—which challenges the CIA’s alleged

policy of refusing to identify responsive records withheld in their entirety at the administrative

stage (the “Withheld Document Non-Identification Policy”)—the Court dismissed that claim in

its October 17, 2012 opinion for failure to state a claim. See NSC I, 898 F. Supp. 2d at 285. In

so ruling, the Court simply concluded that, during administrative processing, the FOIA “does not

require agencies to provide a list of withheld documents, but only to make a reasonable effort to

estimate the volume of the documents withheld.’” Id. (quoting Mobley v. Dep’t of Justice, 845

F. Supp. 2d 120, 124 (D.D.C. 2012)). The plaintiff now asks to “rewrite[e] Count 18 to allege a

policy, pattern, or practice of refusing to provide estimates of the volume of records withheld in

full.” See Pl.’s Amendment Mem. at 3–4. This is an entirely different claim than the one alleged

in the First Amended Complaint, and once again, the plaintiff’s belated attempt to reshape the

nature of its claims constitutes an undue delay. The plaintiff clearly “is using Rule 15 to make

the complaint a moving target, to salvage a lost case by untimely suggestion of new theories of

recovery.” See Minter, 451 F.3d at 1206. This is a naked “attempt to evade the effect of [the

Court’s] Memorandum Opinion and Order dismissing the plaintiff’s claim[],” and therefore “the

request will be denied.” See Kurtz, 2011 WL 2457923, at *1 n.1.

In sum, the plaintiff’s motion to amend its complaint “to correct deficiencies identified by

the Court in its 17 October 2012 Memorandum Opinion,” see Pl.’s Amendment Mem. at 3, is not

a proper use of Rule 15. The defects in Counts Fifteen and Eighteen in No. 11-445 were

identified by the CIA in moving to dismiss those claims, yet the plaintiff did not seek an

amendment upon being alerted to these defects. Instead, the plaintiff waited until after the Court

granted the defendants’ motion regarding these claims. 11 The plaintiff does not claim that it

11

The plaintiff stated in its reply brief that it would “not address the meritless allegation that it should have

immediately conceded and amended its complaint the moment Defendants opposed it . . . especially in light of the

35

would have been incapable of seeking amendment to its complaint much earlier, 12 and if

amendment were permitted now, the CIA would be prejudiced by having to file yet another

responsive motion regarding the newly reshaped claims—nearly a year after the Court already

granted its prior motion to dismiss in relevant part. Therefore, the Court denies the plaintiff’s

motion for leave to file a second amended complaint in No. 11-445.

B. Motion for Sanctions

In its motion for sanctions in No. 11-443, the plaintiff contends that the CIA “engaged in

an extended campaign of misrepresentation . . . regarding the nature of the information it

redacted from the two documents at issue.” See Pl.’s Mot. Sanctions (“Pl.’s Sanctions Mem.”) at

1, No. 11-443, ECF No. 50. The plaintiff relies on three bases in moving for sanctions: (1) 28

U.S.C. § 1927, (2) Federal Rule of Civil Procedure 11, and (3) the inherent power of the Court.

minor technicalities which resulted in the Court’s granting Defendants’ Motion to Dismiss with respect to the two

counts in question.” Pl.’s Reply in Supp. Mot. for Leave to File Second Am. Compl. at 3 n.2, No. 11-445, ECF No.

40. The argument referenced by the plaintiff is not “meritless,” however. When faced with a motion to dismiss, a

plaintiff is faced with a choice—oppose the motion on the merits or amend the complaint to address the deficiencies

raised in the motion. When a plaintiff elects to oppose a motion to dismiss on the merits, the plaintiff assumes the

risk that the court will grant the motion and the plaintiff’s claims will be dismissed. A plaintiff is not entitled simply

to have its proverbial cake and eat it too by first opposing a motion to dismiss on the merits (thereby forcing the

court to resolve the motion to dismiss), and then, upon losing the motion, amend its complaint to correct the very

deficiencies it refused to acknowledge previously. See, e.g., 6 CHARLES ALAN WRIGHT, ET AL FEDERAL PRACTICE

& PROCEDURE § 1488 (3d ed. 2013) (observing that “a motion to amend should be made as soon as the necessity for

altering the pleading becomes apparent” and “[a] party who delays in seeking an amendment is acting contrary to

the spirit of the rule and runs the risk of the court denying permission because of the passage of time”).

12

The plaintiff attempts to sidestep the “undue delay issue” by focusing on the five weeks that passed between the

filing of the Court’s opinion and the filing of the motion to amend. See Pl.’s Amendment Mem. at 4; Pl.’s Reply in

Supp. Mot. for Leave to File Second Am. Compl. at 3, No. 11-445, ECF No. 40. The relevant time period for undue

delay, however, is the time that passed between the filing of the defendant’s motion to dismiss and the filing of the

plaintiff’s motion for leave to amend. If the plaintiff “needed to make several requests for estimated dates of

completion . . . and give CIA a reasonable time to respond before it could sufficiently allege to the Court’s

satisfaction that it was still being affected by CIA’s practice,” see Pl.’s Amendment Mem. at 4, then the time to

submit those requests was either before filing the First Amended Complaint or, at the very least, in the sixteen

months between the defendant’s motion to dismiss and the Court’s October 17, 2012 opinion. In any event, the

plaintiff continues to misunderstand the deficiency in its allegations. The problem is not, as the plaintiff states, that

it did not “allege to the Court’s satisfaction that it was still being affected by CIA’s practice.” Id. (emphasis added).

The problem, as the Court stated in its October 17, 2012 opinion, is that the plaintiff had not alleged that it was ever

subject to the policy in question. See NSC I, 898 F. Supp. 2d at 263. That allegation could easily have been added

to the plaintiff’s Complaint before or after the defendant’s motion to dismiss was filed, but it never was. The

plaintiff, it should also be noted, does not address the undue delay issue with respect to Count Eighteen at all.

36

See id. at 6–7. Regardless of the source of the sanctions, the plaintiff contends that “the evidence

is clear that CIA’s counsel intentionally, unreasonably, vexatiously, and in bad faith

misrepresented the nature of the withheld information in the two Indices for two months,

bringing the orderly progression of the case to a screeching halt.” Id. at 8. In this regard, the

plaintiff clarifies that it “is not maintaining that CIA’s opposition to the initial Motion to Compel

was sanctionable conduct, nor is [it] saying that the making of the mistake in the first place was

sanctionable conduct.” Id. Rather, according to the plaintiff, “[i]t was not until CIA refused to

acknowledge the mistake, forced the extensive subsequent arguments, and repeatedly represented

to the Court that its assessment was correct and the undersigned was wrong that the actions of its

counsel became worthy of sanction.” Id.

To impose sanctions under the Court’s inherent power, “it is settled that a finding of bad

faith is required.” United States v. Wallace, 964 F.2d 1214, 1219 (D.C. Cir. 1992). With respect

to 28 U.S.C. § 1927, which permits a court to impose sanctions against an attorney “who so

multiplies the proceedings in any case unreasonably and vexatiously,” the D.C. Circuit “has not

established whether the standard [for unreasonable and vexatious conduct] should be

recklessness or the more stringent bad faith.” See LaPrade v. Kidder Peabody & Co., 146 F.3d

899, 905 (D.C. Cir. 1998). Finally, Rule 11 requires that when an attorney “present[s] to the

court a pleading, written motion, or other paper,” such a representation may not be “presented for

any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost

of litigation.” FED. R. CIV. P. 11(b). Rule 11 “imposes on any party who signs a pleading,

motion, or other paper . . . an affirmative duty to conduct a reasonable inquiry into the facts and

the law before filing, and the applicable standard is one of reasonableness under the

37

circumstances.” Bus. Guides, Inc. v. Chromatic Commc’ns Enterprises, Inc., 498 U.S. 533, 551

(1991).

Based on the CIA’s submissions, the Court is satisfied that sanctions are not warranted in

this case. In particular, the CIA’s explanation of the circumstances that led to the inaccurate

representations by CIA’s counsel establishes that no sanctionable conduct occurred. Of

particular importance is the revelation in the CIA’s declaration that the CIA’s information review

officer (“IRO”) used a confusing and easily misunderstood notation system when classifying the

redactions made to the two documents in question. See Sixth Lutz Decl. ¶¶ 6–8. It was

objectively reasonable for the CIA’s counsel to rely on the IRO’s statements, though

unfortunately that reliance turned out to be misplaced. Although the plaintiff is correct to assert

that the CIA’s inaccurate representations “br[ought] the orderly progression of the case to a

screeching halt,” Pl.’s Sanctions Mem. at 8, the conduct on the part of the CIA’s counsel was not

sanctionable because it appears to have been premised on a reasonable, good-faith belief that the

representations were correct at the time. The CIA is admonished to engage in clearer internal

communication before making representations to the Court about the agency’s positions in the

future, but in this particular instance the Court denies the plaintiff’s Motion for Sanctions.

C. Policies or Practices

The Court next turns to the plaintiff’s remaining policy-or-practice claims. Although

both of these claims were summarized in the Court’s previous opinion, see NSC I, 898 F. Supp.

2d at 243–44, 248–49, the Court will briefly summarize those claims here to aid the clarity of the

Court’s analysis.

1. Assignment of Rights Policy

In Count Two of No. 11-443, the plaintiff complains that the CIA has a policy of refusing

to recognize the assignment of rights related to FOIA requests (the “Assignment of Rights

38

Policy”). See 443 Compl. ¶¶ 18–28. This policy-or-practice claim is closely connected to Count

One of No. 11-443, in which the plaintiff alleges that the CIA refused to permit NSC to

participate in the administrative appeal proceedings related to a FOIA request that had been

assigned to NSC by an organization called the James Madison Project (“JMP”). 13 See id. ¶¶ 5–

17. The CIA openly admits that it has a policy of not recognizing the assignment of FOIA

requests, see Mem. in Supp. Def.’s Mot. Summ. J. on Counts One & Two (“Def.’s Second 443

Mem.”) at 2, No. 11-443, ECF No. 54 (“The CIA has adopted a categorical policy against

recognizing the assignment of FOIA claims . . . .”), and the plaintiff contends that such a policy

violates the FOIA, see Pl.’s Mem. in Opp’n to Def.’s Mot. Summ. J. on Counts One & Two & in

Supp. Pl.’s Cross-Mot. Partial Summ. J. on Counts One & Two (“Pl.’s 443 Cross-Mot. Mem.”)

at 6–7, No. 11-443, ECF No. 57.

The question presented by the Assignment of Rights Policy is as follows: Is it a violation

of the FOIA for an agency to refuse to recognize a valid assignment of the rights attached to a

FOIA request? The CIA says that a policy of not recognizing assignments does not violate the

FOIA, relying on the conclusory assertion that “[a]gencies are not required by the FOIA to

recognize the assignment of FOIA requests.” Def.’s Second 443 Mem. at 5. The CIA elaborates

its interpretation of the statute by pointing to several provisions of the FOIA “that require

agencies to make determinations based on the identity of the FOIA requester,” such as the fee-

waiver provision, see 5 U.S.C. § 552(a)(4)(A)(ii), the expedited processing provision, see id.

§ 552(a)(6)(E)(i)(I), and Exemptions 6 and 7(C), see id. § 552(b)(6), 552(b)(7)(C). See Def.’s

Second 443 Mem. at 5–6. The CIA contends that such “requester-specific provisions . . . would

13

Indeed, the only argument offered by the CIA in support of summary judgment on Count One in No. 11-443 is

that “the FOIA does not require agencies to recognize the assignment of FOIA requests.” See Mem. in Supp. Def.’s

Mot. Summ. J. on Counts One & Two (“Def.’s Second 443 Mem.”) at 12, No. 11-443, ECF No. 54. Therefore, the

merits of Count One rise or fall with the merits of the policy challenged in Count Two.

39

be frustrated if agencies were required to recognize the assignment of FOIA requests.” Id. at 6–

7. Finally, the CIA contends—as a policy matter—that requiring it to recognize assignments of

FOIA requests would impose an “undue burden,” and would not result in any added benefit to

requesters. See id. at 8–12. In particular, the CIA contends that refusing to recognize

assignments “does not prejudice parties . . . that claim to have been assigned FOIA claims”

because “‘[r]equests for previously requested records are processed on an accelerated basis” and

therefore “[b]y filing new requests, professional requesters can receive the records they seek at

the same time they would if they were assigned the original requests.” Id. at 11–12.

The plaintiff responds by focusing on the factual underpinnings of the CIA’s policy

arguments—in particular the CIA’s contentions about “undue burden.” See Pl.’s 443 Cross-Mot.

Mem. at 2–7. For example, the plaintiff points out that the CIA waives FOIA fees “‘as an act of

administrative discretion’ . . . in the overwhelming majority of requests,” which the plaintiff says

“further exemplifies the lack of any fee-related burden that assignments could possibly impose.”

Id. at 3–4. The plaintiff also quibbles that the CIA has “consistently classified JMP as an ‘all

other’ requester,” and that the CIA’s classification of JMP as a “representative of the news

media” with regard to the one FOIA requests assigned to the plaintiff was an “anomaly.” Id. at

4. 14 As a final example, the plaintiff argues that the CIA’s policy of “‘piggybacking’ a later

request on an earlier request . . . has no bearing on whether recognizing assignments would

impose an undue burden.” Id. at 6. Indeed, the plaintiff argues that such a “piggybacking”

policy “puts the lie to all of [the CIA’s] arguments regarding why assignments should not be

recognized,” since a piggy-backed request “free-rides” off the earlier request in the same way an

assignee would arguably “free-ride” off an assigned request. See id. at 6.

14

Although JMP assigned five FOIA requests to the plaintiff, see Fifth Lutz Decl. Ex. A, No. 11-443, ECF No. 54-

1, the plaintiff only challenges the CIA’s refusal to process one of those requests (F-2008-01105) in Count One of

No. 11-443, see 443 Compl. ¶¶ 5–7.

40

At the outset, both an argument posited by the plaintiff and another argument by the CIA

warrant discussion. First, the plaintiff is under the misimpression that the Court already decided

the merits of the claim regarding the Assignment of Rights Policy, and in making that

assumption the plaintiff mistakenly claims victory in its cross-motion for summary judgment.

See Pl.’s 443 Cross-Mot. Mem. at 2 (“[T]he Court made it very clear that it was resolving [that

the CIA’s policy violate the FOIA] on the merits in NSC’s favor.”). To the contrary, the Court

did not decide the merits of this claim in its prior decision. Rather, in ruling on the CIA’s motion

to dismiss Counts One and Two in No. 11-443, the Court simply made two holdings: (1) the

plaintiff has standing to bring both claims; and (2) in both claims, the plaintiff stated claims upon

which relief may be granted. See NSC I, 898 F. Supp. 2d at 259. The Court made no

determination at that time about whether the plaintiff was entitled to any relief, and such a

determination would have been unwarranted since the plaintiff had not yet sought judgment on

its claim through an appropriate motion.

Second, in support of summary judgment on the Assignment of Rights Policy, the CIA

contends that “NSC’s purported assignments . . . underscore the reasonableness of the CIA’s

decision not to recognize the assignment of FOIA requests.” Def.’s Second 443 Mem. at 13. In

this vein, the CIA attempts to argue that NSC and JMP have “dissimilar objectives” because JMP

“‘holds itself out as a non-profit organization under the laws of the District of Columbia,’” while

NSC “‘is a for-profit entity located in the Commonwealth of Virginia.” Id. (quoting Fifth Lutz

Decl. ¶ 14). By making this argument, perhaps swept up in litigation fervor, the CIA is bending

the record in this case in a highly misleading way. The Court has previously discussed “the

common bonds connecting JMP and NSC,” and how their identity of interests “establishes that

their relationship ‘is such that [NSC] would protect [JMP’s] interests if their interests diverge.’”

41

NSC I, 898 F. Supp. 2d at 257-58 (alteration in original) (quoting Feinman v. FBI, 680 F. Supp.

2d 169, 175 (D.D.C. 2010)). The Court also observed in the first sentence of the Background

section of its opinion that “[t]he plaintiff in these related actions is a not-for-profit organization.”

Id. at 242. The CIA appears to conclude that NSC is a for-profit entity based on the fact that “its

website appears to solicit paying customers.” Def.’s Reply in Supp. Mot. Summ. J. on Counts

One & Two (“Def.’s Second 443 Reply”) at 7 n.2, No. 11-443, ECF No. 64. The mere earning

of income, however, is not at all an indication that an entity is organized for profit. Even non-

profit organizations must pay their bills. The government, of all entities, should know that the

difference between a for-profit corporation and a non-profit organization is not whether the

entity earns income (or even whether it earns income at a profit). Rather, “[i]n contrast to a for-

profit corporation, a non-profit organization must utilize its earnings to finance the continued

provision of the goods or services it furnishes, and may not distribute any surplus to the owners.”

Corp. of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos, 483

U.S. 327, 344 (1987) (Brennan, J., concurring). The CIA’s shameless twisting of the factual

record in this case to portray their assignment of rights position in a better light falls short of the

level of representation that this Court expects of a United States government agency. The CIA

should know better than to make such an obviously unfounded argument, particularly in light of

the many allegations of bad faith that have been leveled by the plaintiff in these cases, including

allegations that prompted a nonfrivolous motion for sanctions. See supra Part III.B; infra Parts

III.F, III.H.1.

With these preliminary matters put to rest, the Court will now turn to answering the legal

question raised by the CIA’s Assignment of Rights Policy. To answer that question, the Court

must look to the FOIA itself. The Court is mindful that the D.C. Circuit has expressly held that a

42

policy-or-practice claim under the FOIA may only survive “[s]o long as an agency’s refusal to

supply information evidences a policy or practice of delayed disclosure or some other failure to

abide by the terms of the FOIA, and not merely isolated mistakes by agency officials.” Payne,

837 F.2d at 491 (emphasis added); accord 5 U.S.C. § 552(4)(B) (conferring to federal district

courts “jurisdiction to enjoin the agency from withholding agency records and to order the

production of any agency records improperly withheld from the complainant”). Accordingly,

under Payne, the Court must determine, based on the undisputed facts, whether the CIA’s refusal

to recognize assignments of the rights attached to FOIA requests (1) results in “delayed

disclosure” of information; or (2) reflects a “failure to abide by the terms of the FOIA.” See

Payne, 837 F.2d at 491.

a) The Plaintiff Has Standing to Challenge the Assignment of Rights

Policy.

Before addressing the merits, however, the Court must briefly address a renewed standing

argument put forth by the CIA with respect to Counts One and Two in No. 11-443. The CIA

argues “[b]ecause NSC could file new, duplicate FOIA requests and receive the requested

records at the same time it would if the CIA recognized assignments, NSC cannot show that it is

harmed by the CIA’s assignment policy and, therefore, does not have standing to bring Counts

One and Two.” See Def.’s Second 443 Reply at 9–10. The CIA recognizes that “the Court did

not accept the CIA’s standing arguments at the motion to dismiss stage,” but it nevertheless

“respectfully requests that the Court reexamine the issue.” Id. at 10 n.3. The plaintiff’s response

to the CIA’s renewed standing argument is that such an argument “is . . . staggeringly improper,”

and therefore the plaintiff has elected to “not even address it.” See Pl.’s Corrected Reply in

Supp. Cross-Mot. Partial Summ. J. on Counts One & Two (“Pl.’s 443 Reply”) at 3 n.1, No. 11-

443, ECF No. 66-1. The plaintiff also vaguely states that it is aware of and “can provide several

43

examples of cases in which” the CIA has not piggy-backed duplicate FOIA requests, which

presumably would demonstrate a delayed disclosure of information. See id.

Despite the plaintiff’s refusal to address the issue, and even assuming that the CIA’s

purported policy of piggy-backing duplicate FOIA requests eliminates any delay in the

processing of duplicate FOIA requests as compared with assigned FOIA requests, the absence of

delay would not deprive the plaintiff of standing to challenge the CIA’s Assignment of Rights

Policy. The CIA narrowly frames the plaintiff’s injury as a delay in receiving information under

the FOIA, see Def.’s Second 443 Reply at 9–10, 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 by JMP, see NSC I, 898 F. Supp. 2d at 259. Although the Court previously

addressed this issue in the context of statutory, rather than constitutional, standing to sue in its

previous opinion, see id. at 254 (“[T]he CIA’s argument presents a question of statutory, rather

than Article III standing.”), the Court’s previous analysis also establishes that a legally protected

interest of the plaintiff has been harmed. See, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555,

560 (1992). The logic of this conclusion is simple: (1) the plaintiff’s assignment is valid and

enforceable, see NSC I, 898 F. Supp. 2d at 259; (2) the CIA will not permit the plaintiff to

enforce the assignment, see Def.’s Second 443 Mem. at 2; and thus (3) the CIA is harming the

plaintiff’s legally protected interest. There is also no question that the relevant injury—

interference with the plaintiff’s legally protected interest in exercising statutory rights validly

assigned to it—was caused by the CIA’s policy and would be redressed by a judgment

invalidating that policy. See, e.g., Lujan, 504 U.S. at 560–61. Thus, the CIA’s standing

argument is unavailing now, just as it was unavailing in its motion to dismiss.

44

b) The CIA’s Assignment of Rights Policy Violates the FOIA.

As to the merits, the Court concludes that the categorical Assignment of Rights Policy

constitutes a “failure to abide by the terms of the FOIA.” See Payne, 837 F.2d at 491. This

conclusion follows ineluctably from the Court’s previous holding that “the plaintiff’s

Assignment is valid and enforceable.” See NSC I, 898 F. Supp. 2d at 259. The Supreme Court

has observed that “[a]ssignees of a claim . . . have long been permitted to bring suit.” Sprint

Commc’ns Co., L.P. v. APCC Servs., Inc., 554 U.S. 269, 275 (2008). Indeed, “[a] statutory right

of action is generally assignable, except where it is conferred on one of a particular class, in the

nature of a personal privilege, or penalty available to him or her alone.” 6A C.J.S. ASSIGNMENTS

§ 49 (2013). “[T]he general rules concerning assignability control in determining whether [a

statutory right of action] is assignable,” id. (footnote omitted), and “[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,” id. § 44;

accord Accrued Fin. Servs., Inc. v. Prime Retail, Inc., 298 F.3d 291, 296 (4th Cir. 2002)

(“[S]tandard principles of assignment law . . . recognize the legality of assigning both existing

and potential choses in action, so long as the causes of action survive the death of the

assignor.”). 15 Since the D.C. Circuit has held that FOIA claims survive death and can be

transferred to a deceased requester’s legal representative, see Sinito v. U.S. Dep’t of Justice, 176

F.3d 512, 517 (D.C. Cir. 1999), it stands to reason that at least some FOIA requests are properly

15

Numerous other kinds of federal statutory claims have been held to be assignable, such as claims under the Miller

Act, see United States ex rel. Sherman v. Carter, 353 U.S. 210, 220 (1957) (“The trustees stand in the shoes of the

employees and are entitled to enforce their rights.”); claims for welfare benefits under the Employee Retirement

Income Security Act (“ERISA”), see, e.g., Misic v. Bldg. Serv. Emps. Health & Welfare Trust, 789 F.2d 1374, 1379

(9th Cir. 1986); antitrust claims, see, e.g., Martin v. Morgan Drive Away, Inc., 665 F.2d 598, 603 n.3 (5th Cir. Unit

A 1982) (“It is well settled in the federal courts that antitrust claims are assignable.”); and civil claims under the

Racketeer Influenced and Corrupt Organizations (“RICO”) Act, see Lerman v. Joyce Int’l, Inc., 10 F.3d 106, 113

(3d Cir. 1993).

45

assignable, and thus a categorical policy of refusing to recognize assignments violates the

FOIA. 16

Indeed, the CIA does not appear to contest the fact that the plaintiff has been validly

assigned the rights to JMP’s FOIA requests. Rather, the CIA relies on two aspects of the FOIA

to justify its Assignment of Rights Policy: (1) the FOIA’s silence with respect to assignments;

and (2) the FOIA’s “requester-specific provisions.” See Def.’s Second 443 Mem. at 5–7. The

FOIA’s silence regarding assignments, however, supports the plaintiff’s position, if it supports

either position at all. “‘Congress is understood to legislate against a background of common-law

adjudicatory principles.’” Mohamad v. Palestinian Auth., 132 S. Ct. 1702, 1709 (2012) (quoting

Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104, 108 (1991)). It is a well-established

“canon of construction that statutes should be interpreted consistently with the common law.”

See Samantar v. Yousuf, 130 S. Ct. 2278, 2289 (2010); accord Solimino, 501 U.S. at 108

(“[W]here a common-law principle is well established . . . the courts may take it as given that

Congress has legislated with an expectation that the principle will apply except when a statutory

purpose to the contrary is evident.” (internal quotation marks omitted)). “‘In order to abrogate a

common-law principle, [a] statute must speak directly to the question addressed by the common

law.’” Manoharan v. Rajapaksa, 711 F.3d 178, 179–80 (D.C. Cir. 2013) (internal quotation

marks omitted) (quoting United States v. Texas, 507 U.S. 529, 534 (1993)). Thus, absent a

statement from Congress in the FOIA regarding assignments, the common-law principles

regarding the recognition of assignments presumably apply, and, as discussed above, under

16

Since the CIA’s Assignment of Rights Policy is categorical, the Court need not decide in what circumstances an

agency can, consistent with the FOIA, refuse to recognize the assignment of a particular request. The answer to that

question likely will depend upon, inter alia, the identity of interests between the two parties and the stage at which

the request is being processed at the time of assignment. See Sinito, 176 F.3d at 516–17 (limitations on substitution

for FOIA claims “assuage[es] the government’s concern that allowing a FOIA case to survive the death of the

requester would allow ‘any person’ to step into the shoes of the decedent” (citation omitted)); NSC I, 898 F. Supp.

2d at 257–58 (discussing identity of interests between assignor and assignee of FOIA request).

46

common-law principles, “[a] statutory right of action is generally assignable.” 6A C.J.S.

ASSIGNMENTS § 49. 17

The 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.” Blazy v.

Tenet, 194 F.3d 90, 97 (D.C. Cir. 1999) (emphasis in original) (quoting Greentree v. U.S.

Customs Serv., 674 F.2d 74, 76 (D.C. Cir. 1982)). Indeed, it is curious that the CIA’s declarant

attempts to justify the Assignment of Rights Policy by contending that “accepting the assignment

and substituting a motivated assignee for a passive requester . . . would increase [the CIA’s]

exposure to litigation.” See Decl. of Martha M. Lutz (Jan. 30, 2013) (“Fifth Lutz Decl.”) ¶ 9,

No. 11-443, ECF No. 54-1. All else equal, a “motivated assignee” would actually be preferred

to a “passive requester,” see id., because the former would be more likely “to increase the

public’s access to governmental information,” Blazy, 194 F.3d at 96, and thereby further the

purpose of the FOIA. The CIA would have the Court believe that, due to the CIA’s policy of

“‘piggyback[ing]’” a subsequent duplicative request to its corresponding initial request, the non-

recognition of assignments of FOIA requests will not diminish or delay the public’s access to

information. See, e.g., Fifth Lutz Decl. ¶ 12. Although the Court addresses this issue more fully

below in discussing the CIA’s “undue burden” arguments, see infra Part III.B.1(c), it suffices to

say that, at least in some circumstances, the refusal to recognize assignments of FOIA requests

17

The Court assumes without deciding that principles of federal common law, rather than state-law principles,

would apply to whether FOIA requests are assignable. Since the release of government records through the FOIA

undoubtedly “touch[es] the rights and duties of the United States,” see Bank of Am. Nat’l Trust & Sav. Ass’n v.

Parnell, 352 U.S. 29, 33 (1956), it therefore likely qualifies as one of the “few areas . . . involving ‘uniquely federal

interests’” that requires the development of federal common law principles, see Boyle v. United Techs. Corp., 487

U.S. 500, 504 (1988) (quoting Texas Indus., Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 640 (1981)). Cf., e.g.,

Cincom Sys., Inc. v. Novelis Corp., 581 F.3d 431, 436 (6th Cir. 2009) (“Federal common law governs ‘questions

with respect to the assignability of a patent or copyright license.’” (quoting PPG Indus., Inc. v. Guardian Indus.

Corp., 597 F.2d 1090, 1093 (6th Cir. 1979)).

47

will indeed diminish or delay the public’s access to information. Therefore, a categorical refusal

to recognize the assignment of FOIA requests is at odds with the statute’s purpose.

As to the “requester-specific provisions” of the FOIA, the CIA 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. See, e.g., RTC Commercial Loan Trust 1995-NP1A v. Winthrop Mgmt., 923 F. Supp.

83, 88 (E.D. Va. 1996) (holding that “certain rights are purely personal and cannot be assigned”).

Hence, the CIA is correct that these personal rights and privileges could not be assigned. The

plaintiff, however, does not contend that wholesale assignment is what the FOIA requires. The

plaintiff, for example, does not contend that the CIA is required to allow an assignee FOIA

requester to stand in the shoes of its assignor with regard to fee status. Therefore, the CIA jabs at

a straw man in contending that a requirement upon agencies to recognize the assignment of

FOIA requests would frustrate the purposes behind the aforementioned “requester-specific

provisions” of the FOIA. See Def.’s Second 443 Mem. at 6–7. Furthermore, agency recognition

of assignments of FOIA requests would, at most, merely transfer some administrative steps to the

processing of a pending FOIA request that would already be taken with respect to a new,

duplicative FOIA request; it would not necessitate that the “the purpose behind [the requester-

specific provisions] . . . be frustrated.” See id. at 7.

c) Recognizing the Assignment of FOIA Requests Would Impose No

Categorically Undue Burden on the CIA.

The CIA devotes a substantial portion of its briefing and the majority of the Fifth Lutz

Declaration to the contention that recognizing assignments would place an undue burden on the

CIA’s FOIA administrators. See Def.’s Second 443 Mem. at 7–10; Fifth Lutz Decl. ¶¶ 5–13. In

48

this vein, the CIA enumerates several ways in which “[a]ssignment of FOIA rights would

prejudice the Agency both at the administrative processing stage and in litigation.” Fifth Lutz

Decl. ¶ 5. Rather than recognize assignments, the CIA proposes that having putative assignee

requesters simply submit a new, duplicative FOIA request would entail less prejudice to the

agency and no prejudice to the requester. See id. ¶ 13. The Court disagrees.

First, according to the CIA, assignment of FOIA rights would “complicate [the CIA’s

Public Information Programs Division’s] adjudication of requests for fee waivers, expedited

processing, and placement in a given fee category.” Id. ¶ 5. With respect to this first argument,

the CIA essentially contends that, if a FOIA request is assigned to another person, the CIA

“would be required to stop processing the request” and decide whether the assignee requester (1)

is entitled to expedited processing or (2) shares the original requester’s same fee category. Id.

The CIA adds that, in the event of assignment, it “would also have to resolve the question as to

whether fees should be charged retroactively for assignees that do not qualify for the assignor’s

fee waiver or preferential fee category.” Id. ¶ 6. Similarly, the CIA complains, “where the

assignor submitted a privacy waiver of a third party . . . issues of consent would arise,” and the

assigned request “would require the submission of a new privacy waiver.” Id. ¶ 7.

There is no question that, if a FOIA request were assigned by the original requester, the

CIA would need to assess the applicability of the “requester-specific provisions” of the FOIA,

discussed above, to the assignee requester. See supra Part III.B.1(b). What the CIA does not

explain, however, is why such an effort would “prejudice” the agency, given the fact that the

CIA would have to make the exact same assessment if the assignee were to submit a new FOIA

request instead of pursuing the assigned FOIA request. Hence, the assignment of a FOIA request

would not add to the agency’s burden in administering the requester-specific provisions of the

49

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). As to the CIA’s

complaint about needing to decide “whether fees should be charged retroactively,” see Fifth Lutz

Decl. ¶ 6, this is hardly a burden, let alone an “undue” one. First, to the extent the recognition of

an assignment would permit the CIA to charge FOIA fees to the assignee when it would not have

been able to charge fees to the original requester, a policy of recognizing assignments represents

a net gain to the agency, not a burden. Second, the CIA is free to charge fees to any assignee

FOIA requester who does not qualify for a fee waiver, just as it would be free to do if the same

requester had filed a new request. Again, the administrative burdens between the two scenarios

are identical. 18

Second, the CIA fears that “assignment of rights presents the potential for abuse.” See id.

¶ 8. The CIA asserts in this regard that it “does not have the resources to inquire into the validity

of the requesters’ consent and assignees’ acceptance or to evaluate whether the assignment

comports with [the] law of the state where the assignment was conferred.” Id. (footnote

omitted). First, as to the state-law question, it is likely that federal common law, not state law,

would govern whether the assignment of a FOIA request were valid. Cf. Gulfstream III Assocs.,

Inc. v. Gulfstream Aerospace Corp., 995 F.2d 425, 437 (3d Cir. 1993) (“[T]he validity of the

assignment of an antitrust claim is a matter of federal common law.”). The FOIA has been held

to preempt other state-law doctrines regarding rights of access to information. See, e.g., Ctr. for

18

This would also not be a “retroactive[]” assessment of fees, since the conduct that would trigger the fee

assessment would be the assignment of the request, not the initial submission of the request. See, e.g., Quantum

Entertainment Ltd. v. U.S. Dep’t of Interior, 714 F.3d 1338, 1343 (D.C. Cir. 2013) (“[T]he application of a new

statute is . . . retroactive only if it would ‘impair rights a party possessed when it acted, increase a party’s liability for

past conduct, or impose new duties with respect to transactions already completed.’” (quoting Landgraf v. USI Film

Prods., 511 U.S. 244, 280 (1994))).

50

Nat’l Sec. Studies v. U.S. Dep’t of Justice, 331 F.3d 918, 936 (D.C. Cir. 2003) (common-law

right of access); see also Hartford Fire Ins. Co. v. United States, 857 F. Supp. 2d 1356, 1365 (Ct.

Int’l Trade 2012) (“Because FOIA establishes a comprehensive statutory framework for

disclosure of agency records, when it conflicts with existing common law rights to disclosure,

such rights are preempted.”). Thus, arguably, since the validity of a FOIA assignment affects the

putative assignee’s right to access information from the federal government, the question of

validity is an “issue[] closely interwoven with a broad scheme of federal statutory regulation,”

which requires the development of interstitial federal common law. See Gulfstream, 995 F.2d at

438.

Even if state law did apply to the validity of the assignment of a FOIA request, the CIA

has failed to explain why it would need to “inquire into the validity” of every such assignment.

See Fifth Lutz Decl. ¶ 8. The Court addressed this issue in its previous opinion, saying that

“[a]gencies can and should shift the vast majority of any burden to the assignees themselves,

requiring them to submit whatever documentation the agency deems sufficient to validate an

assignment.” NSC I, 898 F. Supp. 2d at 259. The CIA already does this in the context of third-

party consent for the release of personal information. See CIA FOIA, FOIA Helpful Hints,

http://www.foia.cia.gov/foia-helpful-hints (last visited August 11, 2013) (requiring requesters

who seek “records on an individual other than yourself” to provide “[a] signed notarized

statement from the other individual authorizing release of personal information”). It defies all

logic to say that the CIA can accept standardized third-party information releases but would need

to “inquire into the validity of [each] requester[’s] consent and assignee[’s] acceptance.” See

Fifth Lutz Decl. ¶ 8. The CIA’s purported investigatory burden in this regard is largely

imaginary and would certainly not be undue or categorical in nature.

51

Third, and as referenced above, the CIA argues that the assignment of FOIA requests

would “increase its exposure to litigation” by “substituting a motivated assignee for a passive

requester.” See Fifth Lutz Decl. ¶ 9. As discussed above, to the extent that the Assignment of

Rights Policy is aimed at keeping otherwise meritorious FOIA claims out of federal courts, it is

at odds with the purposes of the FOIA. See supra Part III.B.1(b). Furthermore, the CIA’s

contention that “the assignee would be placed in a better position to litigate the assigned request

than if they had submitted a new request on the same subject,” Fifth Lutz Decl. ¶ 9, implicitly

confirms that the Assignment of Rights Policy tends to prejudice requesters. To the extent an

“assignee would be placed in a better position to litigate the assigned request than if they had

submitted a new request on the same subject,” id., then a FOIA requester “submit[ing] a new

request on the same subject” would be in a worse position to litigate the assigned request,

presumably because the requester would be less likely to be able to take advantage of the FOIA’s

constructive exhaustion provision, 5 U.S.C. § 552(a)(6)(C)(i). 19

Frankly, the CIA’s argument in this regard appears to boil down to a concern with

ensuring that the agency can present a rosier picture of its compliance with the time limits of the

FOIA, rather than with any concern regarding an undue burden. 20 See, e.g., Fifth Lutz Decl. ¶ 9

(without having to recognize assignments, the CIA “can more easily comply within the statutory

timeframe established by the FOIA”). It may be that refusing to recognize assignments would

“minimize[]” the CIA’s litigation risk, see id., by allowing the agency to restart the clock with a

19

It is not clear what the CIA means by “placed in a better position to litigate the assigned request.” See Fifth Lutz

Decl. ¶ 9. The only potential difference between assignees and non-assignees with regard to litigation, as the Court

observes above, is that a non-assignee may be less likely to be able to take advantage of the FOIA’s constructive

exhaustion provision, 5 U.S.C. § 552(a)(6)(C)(i). This fact, if true, would only mean that an assignee would be able

to litigate a request more quickly than a non-assignee in some instances, but it would not mean that the assignee’s

claims in litigation would be any more or less meritorious than those of non-assignees.

20

The FOIA requires that an agency make a “determination” regarding a FOIA request within twenty business days

of the receipt of the request, and it also requires that an agency make a “determination” regarding any administrative

appeal within twenty business days of the receipt of the appeal. See 5 U.S.C. § 552(a)(6)(A).

52

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. See, e.g., Citizens for Responsibility & Ethics in

Wash. v. FEC, 711 F.3d 180, 189–90 (D.C. Cir. 2013).

Fourth, the CIA relatedly argues that “an assignee may attempt to seek an award of

attorney fees and costs citing work completed pre-assignment.” Fifth Lutz Decl. ¶ 10. The CIA

likewise asserts that “[i]n certain cases, a requester would not be eligible for any award ‘but for’

an assignment.” Id. ¶ 11. With respect to the latter assertion, the CIA provides two examples:

(1) “were the Agency to comply with a request within the FOIA’s time limits, a requester would

[be] ineligible for attorney’s fees,” and (2) “a requester seeking already disclosed records would

not satisfy the attorney fees entitlement factor that considers the public benefit derived from the

case.” Fifth Lutz Decl. ¶ 11. Both of these examples, however, present problematic support for

the agency’s position. As to the first, a simple review of the statutory language demonstrates that

the CIA’s conclusion is dead wrong. The FOIA provides that a “court may assess against the

United States reasonable attorney fees and other litigation costs reasonably incurred in any case

under this section in which the complainant has substantially prevailed.” 5 U.S.C.

§ 552(a)(4)(E)(i). Therefore, in the circumstance where (1) an agency timely responds to a

FOIA request and (2) withholds responsive records, but (3) the requester later secures a

judgment from a court ordering the agency to disclose the responsive records that were withheld,

the requester has “substantially prevailed” and would therefore be eligible for attorney’s fees,

despite the fact that the agency responded to the request in a timely fashion. See id.

§ 552(a)(4)(E)(ii) (defining “substantially prevailed” as, inter alia, “a judicial order or

enforceable written agreement or consent decree”). Indeed, such a plaintiff would be eligible for

53

attorney’s fees even without a court disclosure order, so long as the plaintiff’s “lawsuit

substantially caused the agency to release the requested records.” See Davis v. U.S. Dep’t of

Justice, 610 F.3d 750, 752 (D.C. Cir. 2010). The legal basis for the CIA’s assertion that merely

responding within the statutory timeframe immunizes it from claims for attorney’s fees is

unclear.

As to the second example provided by the CIA, it is totally implausible that “a requester

seeking already disclosed records” would ever substantially prevail in a FOIA lawsuit. See Fifth

Lutz Decl. ¶ 11. Assuming that, by “already disclosed,” the CIA means already officially

disclosed, the only way this could occur would be if the agency in question refused to provide

the requester with the “already disclosed records,” thus necessitating a court order. This scenario

is particularly implausible because the CIA asserts later in its declaration that processing

“requests for previously requested records” is simple and expedient because “the legwork for the

request has been completed.” Id. ¶ 12. Presumably, processing a FOIA request for “already

disclosed records” would be even simpler and more expedient, requiring nothing more than

duplication of the records that have already been processed and released. How such a scenario

would ever approach the question of attorney’s fees is a puzzle the CIA’s argument leaves

unsolved.

In short, the two examples provided by the CIA 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. The same is true of the CIA’s concern that “an assignee may attempt to seek an

award of attorney fees and costs citing work completed pre-assignment.” See Fifth Lutz Decl.

¶ 10. Similar to the litigation burden argument addressed above, requiring the CIA to incur

attorney’s fees—including attorney’s fees for work completed pre-assignment—is not an undue

54

burden. Attorney’s fees are the price exacted from agencies by the FOIA, designed to “remove

the incentive for administrative resistance to disclosure requests based . . . on the knowledge that

many FOIA plaintiffs do not have the financial resources or economic incentives to pursue their

requests through expensive litigation.’” Davy v. CIA, 550 F.3d 1155, 1158 (D.C. Cir. 2008)

(quoting Nationwide Bldg. Maint., Inc. v. Sampson, 559 F.2d 704, 711 (D.C. Cir. 1977)). It is

thus telling that the CIA discusses “an incentive . . . to litigate requests that would otherwise not

be pursued” as if it were something the FOIA seeks to discourage. See Fifth Lutz Decl. ¶ 11.

Finally, the CIA claims that “no prejudice [would] result[] from requiring individuals to

submit a [new and duplicative] FOIA request.” Id. ¶ 12. Embedded within this contention,

however, is yet another inconsistency. As discussed above, the CIA contends that having to

reassess the applicability of the FOIA’s “requester-specific provisions” for an assigned request

would be an undue burden. See id. ¶¶ 5–7. Yet, when the CIA must perform that same

reassessment for a new, duplicative FOIA request, it says that the task is simple and that it “often

result[s] in a response to a requester within the statutory timeframe.” Id. ¶ 12. Both positions

cannot simultaneously be accurate.

Furthermore, the CIA only considers two factual circumstances in its declaration:

(1) “requests for previously requested records,” and (2) “a request for the same subject as an

outstanding request.” Id. Yet, the facts of the instant case fall into a third category: an assignee

requester seeks to step into the shoes of an original requester while the request in question is

making its way through the administrative appeal process. See NSC I, 898 F. Supp. 2d at 244

(discussing how JMP assigned request to NSC nearly six months after JMP had filed

administrative appeal). Indeed, in this case, NSC sought to amend the pending administrative

appeal with respect to the assigned request over a year after the administrative appeal had been

55

filed. See id. In light of this factual predicate, the CIA does not explain how requiring NSC to

file a new FOIA request would have resulted in no delay. The CIA would have first needed to

process the new request, and although “the legwork for the request ha[d] [already] been

completed,” Fifth Lutz Decl. ¶ 12, the CIA would have admittedly had to assess NSC’s fee status

and right to expedited processing, see id. ¶ 5. Then, NSC would have had to file an

administrative appeal from scratch.

The CIA does not state whether it also “piggybacks” administrative appeals for the same

information, nor does the CIA say whether such appellate “piggybacking” would be feasible,

since even multiple requests for the same information are liable to raise distinct and separate

issues in their administrative appeals. 21 The CIA nevertheless concludes—ignoring the

procedural posture of the specific request at issue in this case—that “if plaintiff were to request

the same information, his request would be joined with the existing request and the Agency

would respond to both requests at the same time.” Id. ¶ 16. As demonstrated above, however, it

is not a simple matter of “join[ing] with the existing request” because the original request had

already traveled almost entirely through the administrative process at the time of assignment.

How the process of catching the new request up with the original request would result in no

delay whatsoever defies reality, particularly in a case like the instant one where the original

administrative appeal had been pending for over a year when the assignee attempted to modify it.

Thus, even assuming that the CIA uniformly implements its “piggybacking” policy, such a

21

The risk of delay would be even more acute if a FOIA request were assigned after the administrative appeal

process had already been completed. At that point, the second requester (in this case NSC) would need to file a new

FOIA request, file a new administrative appeal, and exhaust the entire administrative process before it would be in

the same position as the original requester.

56

policy would still inevitably result in delay to requesters, particularly with respect to FOIA

requests that are far along into the administrative process. 22

In sum, the Court concludes that the CIA’s admitted Assignment of Rights Policy

constitutes a “failure to abide by the terms of the FOIA.” See Payne, 837 F.2d at 491. The Court

likewise concludes that the CIA’s ongoing failure is not excused by the presence of any undue

burden that would result from recognizing the assignment of rights associated with FOIA

requests. Thus, the CIA may no longer categorically refuse to recognize the assignment of FOIA

requests, and the Court will grant summary judgment to the plaintiff on Count Two in No. 11-

443.

Additionally and relatedly, since the CIA cites only the Assignment of Rights Policy as

the justification for not providing any final administrative response to the plaintiff regarding

FOIA request No. F-2008-01105 (the request assigned by JMP to the plaintiff), the CIA has not

met its burden at summary judgment. Since the Assignment of Rights Policy is invalid and thus

clearly not sufficient to justify the CIA’s refusal to permit the plaintiff to pursue its

administrative appeal, the Court will grant summary judgment to the plaintiff on Count One in

No. 11-443 as well. The current status of the FOIA request at issue in Count One, however, is

not clear. The CIA stated in January 2013 that this request was “still pending.” See Fifth Lutz

Decl. ¶ 4. Likewise, the plaintiff states in its Complaint that the FOIA request was

administratively appealed prior to the assignment being issued. See 443 Compl. ¶¶ 9–13. Thus,

although the plaintiff requests the Court to “order CIA to immediately release all currently

withheld information responsive to . . . the FOIA request at issue in Count 1,” see Pl.’s 443

Cross-Mot. Mem. at 2, the Court will remand this matter to the agency rather than order the

22

The “piggybacking” policy would presumably be much less likely to result in delay if an assignment of rights

were to take place early on in the FOIA request process, such that the two requests could be joined prior to any

significant amount of work being done with respect to either request.

57

release of responsive records. On remand, the CIA must permit the plaintiff to exhaust its

administrative remedies through the administrative appeals process as an assignee of the FOIA

request in question. 23

2. Document-Level Exemption Policy

In Count Twenty of No. 11-445, the plaintiff complains that the CIA has a policy or

practice “of refus[ing] to invoke exemptions with particularity.” See 445 FAC ¶ 131.

Specifically, the plaintiff alleges that the CIA’s policy is to “invoke[] [FOIA] exemptions on a

document-level without indicating which exemptions applied to which particular redactions.” Id.

¶ 129. In its previous opinion, the Court dubbed this the “Document-Level Exemption Policy.”

See NSC I, 898 F. Supp. 2d at 243. The FOIA requires that, when an agency releases segregable

portions of a record, “the exemption under which the deletion is made, shall be indicated on the

released portion of the record, unless including that indication would harm an interest protected

by the exemption . . . under which the deletion is made.” 5 U.S.C. § 552(b). In this regard, the

FOIA also states, “[i]f technically feasible, . . . the exemption under which the deletion is made,

shall be indicated at the place in the record where such deletion is made.” Id. Finally, the FOIA

provides that “a court shall accord substantial weight to an affidavit of an agency concerning the

agency’s determination as to technical feasibility under . . . subsection (b).” Id. § 552(a)(4)(B).

In the instant case, the CIA defends its Document-Level Exemption Policy by contending

that “it is not currently technically feasible for the Agency to assert exemptions on the redaction

level.” Def.’s Mem. in Supp. Mot. Summ. J. on Counts Twelve & Twenty (“Def.’s Second 445

23

The CIA indicates that “if the Court were to order the CIA to begin recognizing assignments, the Agency would

have to determine whether NSC’s purported assignment comports with state law and was legitimately obtained and

address potential fee and personal privacy issues before it could proceed to litigate the underlying request.” Def.’s

Second 443 Reply at 11. The Court will leave these matters to the agency on remand, but cautions that the CIA’s

legal position regarding the validity of an assignment resting on state law is highly questionable and, furthermore,

may be inconsistent with the law of this case. See NSC I, 898 F. Supp. 2d at 259 (“The Court holds that the

plaintiff’s Assignment is valid and enforceable . . . .”).

58

Mem.”) at 2, No. 11-445, ECF No. 42. To support this contention, the CIA has submitted the

sworn declaration of Michele Meeks, who is the chief of the CIA’s Public Information Programs

Division (“PIPD”) and also the CIA Information and Privacy Coordinator (“IPC”). See Decl. of

Michele L. Meeks (Apr. 29, 2013) (“Meeks Decl.”) ¶ 1, No. 11-445, ECF No. 42-1. In that

declaration, Ms. Meeks explains that “[t]he CIA’s [FOIA] review process is decentralized

whereby each of the [CIA’s] five directorates . . . maintains an [Information Review Officer, or

‘IRO’] staff that reviews Agency records and makes public release determinations with an eye

toward evaluating directorate-specific equities.” Id. ¶ 4. Ms. Meeks also explains that “records

frequently involve the equities of multiple directorates,” and “[w]hen records implicate the

operational interests of multiple directorates, the reviews are conducted by the relevant IROs

simultaneously.” Id. ¶¶ 5–6. Within each directorate, “IRO staffers electronically redact any

protectable material and indicate the basis for the redaction on the page,” and each directorate

maintains “a separate electronic version of the document.” Id. ¶ 6.

Once all relevant directorates have completed their reviews, Ms. Meeks explains, the CIA

“then consolidates the redactions generated by the reviewing IRO staffs into a single document.”

Id. ¶ 7. In this regard, Ms. Meeks states that “there is frequently variation as to what is redacted

by the different directorates,” and in that circumstance, “[CIA] staffers compile the redactions

made by each directorate and merge all of the redactions into a final version in preparation for

public release.” Id. This preparation of the “final version” occurs on the CIA’s Automated

Declassification and Release Environment (“CADRE), which “does not have similar capability

with respect to exemptions and other document markings.” Id. ¶ 8. In CADRE, Ms. Meeks

states, “[t]he merge function pulls the underlying justification for the redaction, but, due to the

substantial overlap of the redactions in each of the directorate’s versions, the exemptions appear

59

on top of one another and are unreadable.” Id. Therefore, “[t]he staff involved in the merging

cannot, without conducting extensive, time consuming manual review, parse out which

exemptions apply to a specific redaction and notate as appropriate.” Id.

The Court is mindful that it has a statutory obligation to “accord substantial weight” to

Ms. Meeks’ statements regarding the CIA’s determination of technical feasibility, see 5 U.S.C.

§ 552(a)(4)(B), but Ms. Meeks’ explanation of the purported technical infeasibility of noting

redaction-level exemptions has several unexplained gaps and inconsistencies. It should be noted

again at the outset that the CIA’s Document-Level Exemption Policy is, like the Assignment of

Rights Policy, categorical in nature. See Meeks Decl. ¶ 8 (“[A]t present, the Agency indicates all

the applicable exemptions in the top corner of the released document.”). This characteristic of

the policy is notable, considering that the basis for the Document-Level Exemption Policy is that,

when multiple directorates review a record, “the exemptions appear on top of one another and

are unreadable.” Id. ¶ 8. Yet, Ms. Meeks explicitly concedes that records only “frequently

involve the equities of multiple directorates.” Id. ¶ 5 (emphasis added). That this situation

occurs frequently is no justification for imposing the policy categorically, regardless of whether

indicating redaction-specific exemptions is technically feasible when multiple directorates

review the same document. Hence, when, for example, only one directorate reviews a given

record or only one directorate indicates a redaction on a given record, the CIA’s Document-

Level Exemption Policy is clearly unsupported and contrary to the FOIA.

Furthermore, Ms. Meeks’ explanation of technical infeasibility is perplexing. The CIA’s

process of redacting information, as explained by Ms. Meeks, only makes sense up until she

explains what happens when the various electronic versions of a record are “merge[d],” after

each directorate has reviewed it. See id. ¶¶ 7–8. First, Ms. Meeks states on the one hand that

60

“there is frequently variation as to what is redacted by the different directorates,” implying that

there is frequently no overlap between the directorates’ redactions. See id. ¶ 7 (emphasis added).

Indeed, this makes sense because, as Ms. Meeks points out, each directorate has “separate

operational equities at issue.” See id. Yet, in the very next paragraph of her declaration, Ms.

Meeks reverses course, stating that “the exemptions appear on top of one another and are

unreadable” due to “the substantial overlap of the redactions in each of the directorate’s

versions.” Id. ¶ 8 (emphasis added).

Of course, “frequent[] variation” and “substantial overlap” are not mutually exclusive,

but the CIA’s declaration does not explain why exemptions cannot be indicated next to a

redaction that was made by only one directorate. It would be one thing if the CIA were to aver

that every single redaction is always made by at least two directorates, but the CIA does not even

suggest that to be the case. In fact, it would appear not to be the case because Ms. Meeks’

declaration strongly implies that, at least sometimes, an entire document is reviewed by only one

directorate, see id. ¶ 5, and thus necessarily every redaction made to such a document would be

made by only the one reviewing directorate. In such a circumstance—which the CIA suggests is

uncommon but nevertheless extant—indicating the claimed exemption “at the place in the record

where such deletion is made” appears to be technically feasible based on the CIA’s own

explanation of how its redaction process works. See 5 U.S.C. § 552(b).

Therefore, even according the “substantial weight” due to the CIA’s declaration on the

issue of technical feasibility, see 5 U.S.C. § 552(a)(4)(B), the Court concludes that the CIA’s

categorical Document-Level Exemption Policy constitutes a “failure to abide by the terms of the

FOIA.” See Payne, 837 F.2d at 491. The CIA must make a case-by-case determination

regarding the technical feasibility of indicating a claimed exemption associated with a deletion

61

“at the place in the record where such deletion is made.” See 5 U.S.C. § 552(b). Additionally,

based on the CIA’s representations, the CIA can only possibly claim technical infeasibility if the

same redaction in question was made by more than one directorate within the CIA. The Court

will thus grant summary judgment to the plaintiff with respect to Count Twenty in No. 11-445. 24

D. Adequacy of Search Efforts

Next, the Court will discuss the plaintiff’s challenges to the adequacy of the search

efforts of defendants CIA, State Department, and NSA in responding to four separate FOIA

requests. The Court will address the considerations related to each request in turn.

1. Count Eighteen in No. 11-444: January 26, 2011 FOIA Request to the

CIA

In response to the plaintiff’s January 26, 2011 FOIA request seeking “all [CIA] records

pertaining to the search tools and indices available to the Office of Information Management

Services (‘IMS’) for conducting searches of its own records in response to FOIA requests,” the

CIA determined that the Director’s Area was the only directorate within the CIA reasonably

likely to have records responsive to the request. See First Lutz Decl. ¶ 48. The stated reason for

this determination is that the request sought records “available to IMS,” and “IMS is a

component within the Director’s Area.” See id. The CIA avers that the plaintiff’s request “was

sent to IMS professionals who had personal knowledge of what search tools and indices were

available and personally used by IMS personnel to search IMS records systems because they

themselves use the search tools and indices references in the request.” Id. ¶ 50. The IMS

24

To be clear, the Court is not ordering the CIA to make any modifications to its current document-redaction

system, even if such a modification would make the agency’s processing of requests more FOIA-compliant. The

plaintiffs advocates for an affirmative injunction against the CIA, requiring it to “correct” a perceived “technical

problem” with CIA’s system. See Pl.’s Second 445 Opp’n at 6. The plaintiff’s challenge, however, was to the

CIA’s categorical policy of refusing to indicate exemptions next to specific redactions. See 445 FAC ¶¶ 129–31.

The Court holds that that policy is invalid. Whether or not the FOIA requires the CIA to broaden the universe of

records for which it can feasibly claim exemptions for deletions “at the place in the record where such deletion is

made” by, for example, changing its technical process for redacting records, is not at issue here.

62

personnel “electronically searched the IMS records system as well as manually searched for

independently known records that were responsive to Plaintiff’s request.” Id. ¶ 51.

The plaintiff raises two objections to the adequacy of the CIA’s search in response to the

January 26, 2011 FOIA request. First, the plaintiff states that “the request asked for the indices

themselves, in addition to records about them,” yet the CIA merely “provided three records

which described indices.” See Pl.’s First 444 Opp’n at 24 (emphasis in original). Second, the

plaintiff complains that, in a separate pending case, the CIA’s declarant, Ms. Lutz, referenced the

existence of several IMS systems of records which were not referenced in the documents

released to the plaintiff in this case. See id. at 25. Specifically, the records released to the

plaintiff in the instant case only reference two records systems: SMART2 and CADRE. See First

Lutz Decl. ¶ 51. Yet, the plaintiff points to language in Ms. Lutz’s declaration in a separate

pending case (Civil Case No. 11-442), in which she “identified at least three more systems of

records which exist ‘within IMS’ and for which records should have been released.” See Pl.’s

Mot. for Leave to File Additional Evidence at 3, No. 11-444, ECF No. 44. Hence, the plaintiff

asserts that the “CIA fails to explain with particularity why it identified no responsive records

about these ‘other systems of records within IMS’ in particular.” Id. at 4.

It is true that “the agency’s failure to turn up a particular document, or mere speculation

that as yet uncovered documents might exist, does not undermine the determination that the

agency conducted an adequate search for the requested records.” Wilbur, 355 F.3d at 678. At

the same time, however, agency affidavits must “‘explain in reasonable detail the scope and

method of the search conducted by the agency.” See Morley, 508 F.3d at 1121 (quoting Perry v.

Block, 684 F.2d 121, 127 (D.C. Cir. 1982)). In particular, in order to satisfy its burden of

establishing the adequacy of its search, an agency’s affidavit must “describe in . . . detail what

63

records were searched, by whom, and through what process.” Steinberg v. U.S. Dep’t of Justice,

23 F.3d 548, 552 (D.C. Cir. 1994). “A reasonably detailed affidavit, setting forth the search

terms and the type of search performed . . . is necessary to afford a FOIA requester an

opportunity to challenge the adequacy of the search and to allow the district court to determine if

the search was adequate in order to grant summary judgment.” Oglesby, 920 F.2d at 68.

The CIA has failed to meet its burden in this case. Critically, the CIA’s declaration does

not state what parameters were used to accomplish the search, i.e., whether the CIA searched for

the indices themselves or what search terms the CIA used to identify responsive records. The

CIA’s declaration merely states in conclusory fashion that “IMS 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.” First Lutz Decl. ¶ 53. The CIA is correct that the plaintiff’s specific arguments

improperly focus on “the agency’s failure to turn up . . . particular document[s],” i.e., the search

indices themselves, and offer “mere speculation that as yet uncovered documents might exist,”

i.e., documents about other records systems. See Wilbur, 355 F.3d at 678. Even so, the

plaintiff’s arguments underscore the more fundamental deficiency in the CIA’s declaration,

which is that the CIA does not provide sufficient information for the Court to conclude that its

search methods were “reasonably calculated to uncover all relevant documents.” See Morley,

508 F.3d at 1114. Based on the vague and conclusory assertions in the CIA’s declaration, the

Court would be required to speculate in order to conclude that the agency’s search efforts “us[ed]

methods which can be reasonably expected to produce the information requested.” Oglesby, 920

F.2d at 68. The Court will therefore deny summary judgment to the CIA on Count Eighteen in

No. 11-444 with respect to the adequacy of the agency’s search.

64

2. Count Twenty in No. 11-444: September 25, 2009 FOIA Request to the

CIA

As stated above, the plaintiff submitted a FOIA request to the CIA on September 25,

2009, seeking “all [CIA] records, including cross-references, pertaining to guidelines for

attorneys in the Office of General Counsel (‘OGC’) for the conduct of civil cases, especially

pertaining to interactions between OGC attorneys and Department of Justice (‘DOJ’) attorneys.”

First Lutz Decl. Ex. T at 1. In response to this request, the CIA’s declarant avers that “IMS

professionals determined that the Director’s Area was the only directorate reasonably likely to

have” responsive records. First Lutz Decl. ¶ 60. The Director’s Area then “tasked the [OGC] to

search for records responsive to the Plaintiff’s request.” Id. ¶ 61. The OGC in turn “searched

relevant records systems containing all files reasonably likely to contain responsive materials and

located no records responsive to Plaintiff’s request.” Id. ¶ 62. OGC further “consulted [the

CIA’s] Litigation Division management regarding this request” because the Litigation Division

“is the component within OGC that interacts most frequently with DOJ attorneys, usually on a

daily basis.” Id. According to the CIA’s declarant, “Litigation Division management confirmed

that as of [December 2010], no documents responsive to Plaintiff’s request existed.” Id.

The plaintiff again raises two objections to the adequacy of the CIA’s search. First, the

plaintiff raises what it refers to as “an existential problem—it is completely unfathomable that

the [OGC] would have no records pertaining to guidelines for the conduct of civil cases.” Def.’s

First 444 Opp’n at 26. Second, the plaintiff raises the “issue of cut-off dates.” Id. at 27. The

plaintiff states that the CIA “has a practice of assigning a cut-off date to every request of the date

the acknowledgement letter is written.” Id. Neither of these contentions is sufficient to defeat

summary judgment. As to the first, and as noted above, “the agency’s failure to turn up a

particular document, or mere speculation that as yet uncovered documents might exist, does not

65

undermine the determination that the agency conducted an adequate search for the requested

records.” Wilbur, 355 F.3d at 678. The plaintiff’s incredulity regarding the absence of

responsive records is insufficient to overcome an otherwise adequate search.

The second objection is premised on a semantic hair-splitting of the CIA’s declaration.

In particular, the plaintiff notes ambiguous language in the CIA’s declaration that could suggest

that the CIA did not search for any records created after the date the CIA accepted the plaintiff’s

FOIA request. See Pl.’s First 444 Opp’n at 6–7, 27–28. The plaintiff’s suspicions aside, the

Court reads the CIA’s declaration to state that the CIA searched for records referenced in the

plaintiff’s September 25, 2009 FOIA request as late as December 2011. See First Lutz Decl.

¶ 62. This is not an unreasonable cut-off date. See, e.g., Public Citizen v. Dep’t of State, 276

F.3d 634, 644 (D.C. Cir. 2002) (implicitly approving as reasonable a “date-of-search cut-off

[date]”).

Although neither of the grounds raised by the plaintiff is sufficient to defeat summary

judgment, the Court nevertheless cannot grant summary judgment to the CIA because the CIA’s

declaration fails to satisfy the minimal burden under the FOIA to establish the adequacy of the

search. It is axiomatic that, for an agency to win summary judgment in a FOIA case, the

agency’s justifications for its actions must be “specific” and “non-conclusory.” See, e.g., Am.

Civil Liberties Union v. CIA, 710 F.3d 422, 426 (D.C. Cir. 2013). The CIA’s declaration

regarding its search efforts in response to the plaintiff’s September 25, 2009 FOIA request,

however, are neither. The declaration, for example, 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. See First Lutz Decl. ¶ 62. The CIA also does

66

not offer any reasoning for its conclusion that “the Director’s Area was the only directorate

reasonably likely to have” responsive records. Id. ¶ 60. Finally, the CIA provides no description

of the search parameters it used to locate responsive records. See, e.g., Oglesby, 920 F.2d at 68.

The Court cannot fill in these gaps for the agency under the auspices of good-faith deference. It

is the agency’s burden to supply this information to secure summary judgment, and the CIA has

failed to meet that burden. Accordingly, the Court will deny summary judgment to the CIA on

Count Twenty in No. 11-444 with regard to the adequacy of the agency’s search.

3. Count Nine in No. 11-445: February 6, 2010 FOIA Request to the State

Department

As discussed above, on February 6, 2010, the plaintiff submitted a FOIA request to the

State Department, seeking “copies of all current training handbooks, manuals, guidelines,

checklists, worksheets, and similar documents provided to [State Department] FOIA and Privacy

Act analysts (both agency employees and contractors).” First Walter Decl. Ex. 1, at 1. In

response, the State Department “determined that the office that was reasonably likely to have

responsive documents was the Bureau of Administration’s Office of Information Programs and

Services [‘IPS’].” First Walter Decl. ¶ 16. The State Department’s declarant explains: “Because

the request sought training materials provided to the [State] Department’s ‘FOIA and Privacy

Act analysts (both agency employees and contractors),’ the [State] Department only searched

IPS branches that employ FOIA and/or Privacy Act analysts because only those components

were reasonably likely to have documents responsive to the subject request.” Id. ¶ 18. In all, the

seven branches of IPS that employ FOIA or Privacy Act analysts were searched, and those

searches yielded 122 responsive records. See id. ¶¶ 18–24.

Also as discussed above, the State Department’s Bureau of Diplomatic Security (“DS”)

independently responded to the plaintiffs’ request on March 1, 2013, releasing twenty-six

67

responsive records that had not been released by IPS. See Notice of Recent Development

Regarding Count 9, at 1. As the State Department’s declarant explains, “IPS delegates limited

authority to certain [State] Department components, including DS [and four other State

Department components], to assist with the processing of [FOIA or Privacy Act] requests for

purposes of administrative expediency and efficiency.” Third Walter Decl. ¶ 3. Indeed, the

State Department’s declarant explains that these five State Department components, including

DS, “conduct their own FOIA/Privacy Act reviews and respond directly to requesters,” despite

the fact that “IPS is the [State] Department’s central office for the processing of FOIA/Privacy

Act requests and the development of FOIA policies and training.” Id. ¶ 4. Despite the fact that

DS released numerous, unique responsive records, “the [State] Department stands by its decision

to limits its search . . . to IPS.” Id.

Although the State Department appears unphased by the independent response of DS to

the plaintiff’s FOIA request, the Court views the matter differently. It is clear from the State

Department’s initial declaration that the reason the seven IPS components were selected as being

likely to contain responsive material is that they were the only branches of IPS “that employ

FOIA and/or Privacy Act analysts.” See First Walter Decl. ¶ 18. Yet, it is equally clear from the

State Department’s subsequent declaration that several other components of the State

Department employ FOIA or Privacy Act analysts. Indeed, the fact that five other components

of the State Department “conduct their own FOIA/Privacy Act reviews and respond directly to

requesters,” see Third Walter Decl. ¶ 4, establishes that IPS is not the only State Department

component likely to contain records responsive to the plaintiff’s February 6, 2010 FOIA request.

Therefore, since the State Department “stands by its decision to limits its search . . . to IPS,” id.,

the State Department has failed to satisfy its burden of establishing that it conducted an adequate

68

search under the FOIA. See, e.g., Ancient Coin Collectors Guild v. U.S. Dep’t of State, 641 F.3d

504, 514 (D.C. Cir. 2011) (agency’s affidavit must “aver[] that all files likely to contain

responsive materials (if such records exist) were searched” (internal quotation marks omitted)). 25

Accordingly, the Court will deny summary judgment to the State Department on Count Nine in

No. 11-445 in regard to the adequacy of the agency’s search.

4. Count Ten in No. 11-445: February 6, 2010 FOIA Request to the NSA

Also on February 6, 2010, the plaintiff submitted a substantially identical FOIA request

to the NSA. The only difference was that the request to the NSA sought training materials used

by NSA FOIA and Privacy Act analysts, rather than those from the State Department. See

Phillips Decl. Att. 1, at 2. The plaintiff raises only a narrow challenge to the adequacy of the

NSA’s search efforts, arguing that “many of the records released by NSA explicitly referenced

templates to be used for various FOIA letters by file name.” See Pl.’s First 445 Opp’n at 36.

The plaintiff argues that the NSA’s failure to search for and produce such templates renders the

25

The plaintiff also specifically takes issue with the fact that the State Department “refused to search for . . . and

process” three specific documents that the plaintiff believes “would be responsive to [its] requests.” See Pl.’s First

445 Opp’n at 36. To support its contention, the plaintiff relies on the fact that it sent an e-mail to the State

Department’s counsel on May 27, 2012—over four months after the State Department had provided a final response

to the plaintiff—requesting that the State Department search its Systematic Review Program (“SRP”) (a branch

within the ISP) for three specific documents that the plaintiffs believed were “clearly responsive” but had not been

released. See id. at 35. The plaintiff contends that this e-mail was a “clear lead” that the State Department failed to

follow, in violation of the FOIA. See id. at 35–36 (citing Halpern v. FBI, 181 F.3d 279, 288 (2d Cir. 1999)). The

plaintiff’s arguments in this regard do not demonstrate a deficiency in the State Department’s search efforts,

however, for three reasons. First, the State Department did search the SRP for responsive material. See First Walter

Decl. ¶ 23. Indeed, the SRP was searched both electronically and manually, using the keywords “training,”

“guidance,” “procedures,” and “processing.” Id. Second, the plaintiff has not demonstrated that the three

documents it seeks would in fact have been responsive to its FOIA request. In particular, the plaintiff has not made

any showing that the three documents in question were “in current use as of 6 February 2010,” which was an explicit

limitation on the scope of the request. See First Walter Decl. Ex. 1, at 1. Finally, and most fundamentally, the State

Department 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. See, e.g. Campbell v. U.S. Dep’t of Justice,

164 F.3d 20, 28 (D.C. Cir.

This text is long and has been trimmed here. Open the source document for the complete record.