# Mobley v. Central Intelligence Agency

> District Court, District of Columbia · February 7, 2013 · 924 F. Supp. 2d 24

URL: https://www.frixlaw.com/law-library/cases/2661160

## Case

- **Full name:** Sharif MOBLEY, Et Al., Plaintiffs, v. CENTRAL INTELLIGENCE AGENCY, Et Al., Defendants
- **Court:** District Court, District of Columbia
- **Decided:** February 7, 2013
- **Citations:** 924 F. Supp. 2d 24; 2013 U.S. Dist. LEXIS 16399; 2013 WL 452932
- **Precedential status:** Published
- **Opinion:** Opinion by Howell
- **Judges:** Judge Beryl A. Howell
- **Nature of suit:** Civil
- **Cited by:** 64 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2661160

## How later opinions describe it (automated extraction)

- finding FBI’s justification of search adequate, if “thin,” where the FBI averred that “[g]iven the broad search of the comprehensive CRS system and the ELSUR indices . . . [the FBI's acting FOIA chief] determined that there is no reasonable basis to conclude that responsive re…
- finding the agency’s failure to search shared drives did not render the search inadequate because there was no indication that such a search would reveal responsive records
- holding FBI had "no obligation to follow up on any leads contained in” records that FBI was not aware of "before the conclusion of the FBI’s search process”
- holding that identity of deceased officer was properly withheld to protect privacy interests of surviving close relatives

## Opinion text

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

SHARIF MOBLEY, et al.

Plaintiffs,
Civil Action Nos. 11-2072, 11-2073 (BAH)
v.
Judge Beryl A. Howell
CENTRAL INTELLIGENCE AGENCY, et al.

Defendants.

MEMORANDUM OPINION

The plaintiffs, Sharif Mobley and his wife Nzinga Islam, 1 bring these two related actions

against four federal government agencies—the Central Intelligence Agency (“CIA”) and the

Departments of State, Defense, and Justice—pursuant to the Freedom of Information Act

(“FOIA”), 5 U.S.C. § 552, and the Privacy Act, 5 U.S.C. § 552a (collectively “FOIA/PA”). The

plaintiffs filed FOIA/PA requests seeking access to, inter alia, all records relating to themselves,

in an apparent effort to shed light upon the arrest of Mobley in Sana’a, Yemen on January 26,

2010, and his subsequent incarceration there. All four defendants provided final determinations

regarding the plaintiffs’ requests, some of which included the release of responsive records to the

plaintiffs, and the plaintiffs now challenge the defendants’ handling of the plaintiffs’ requests on

a number of grounds. The defendants contend that they have satisfied their obligations under the

FOIA and the Privacy Act, and consequently they have moved for summary judgment on the

plaintiffs’ claims. 2

1
Both actions were originally brought by both plaintiffs, but Ms. Islam was terminated as a plaintiff in Civil Case
No. 11-2073 on July 19, 2012. See First Am. Compl. (“FAC”) ¶ 4, ECF No. 36 (No. 11-2073).
2
Due to the sensitive nature of some of the information requested in this case, the Court submitted this
memorandum opinion for preclearance review on February 1, 2013; no modification was made to the opinion as a
result of that review.

1
I. BACKGROUND

On January 26, 2010, Mobley was “abducted” from the streets of Sana’a, Yemen and

held in the custody of the Yemeni government for several weeks, during which time he was

allegedly questioned by U.S. agents and given medical attention for wounds he suffered during

his abduction. See Decl. of Cori A. Crider (“Crider Decl.”) ¶¶ 8–10, 26–41, 47–48, ECF No. 24-

1 (No. 11-2072). Mobley “is now alleged to have tried to escape from the Jumhori Hospital

where he was held incommunicado, shooting two guards, one fatally.” See id. ¶ 50. Mobley

remains in Yemeni custody on murder charges and faces a potential death sentence. See id. ¶ 53.

On July 22, 2010, after all of these events transpired, Mobley filed, through counsel, a

FOIA/PA request with defendants Department of Defense (or “Defense”), Department of State

(or “State”), and Department of Justice (or “Justice”), as well as to the Department of Homeland

Security, which is not a party to these related actions. See Decl. of Sheryl L. Walter (“First

Walter Decl.”) ¶ 4, ECF No. 24 (Aug. 1, 2012) (No. 11-2072); id. Ex. 1, ECF No. 24-1 (No. 11-

2072). This request sought records relating to:

1. Mr. Mobley’s abduction from the streets of Sana’a, Yemen on January 26,
2010.
2. U.S. agencies’ involvement in that disappearance.
3. U.S. agencies’ interrogation of Mr. Mobley in incommunicado detention in
Yemen, at a time when he was suffering torture and/or cruel, inhuman, and
degrading treatment (CIDT).
4. The wider pattern of U.S.-sponsored sweeps and proxy detention in Yemen
from January 2010, of which Mr. Mobley’s seizure is a part.

First Walter Decl. Ex. 1, at 2. The request clarified that Mobley was requesting “all records in

any way relating to, pertaining to, or mentioning himself by any and all persons or entities,

including all persons acting on behalf of the United States.” Id. Additionally, the request

provided sixteen categories of records intended “to elucidate the sorts of records in the likely

2
possession of the targeted agencies.” Id. These categories included, inter alia, “[a]ny

records . . . created from November 2009 . . . between the federal government and the

government of Yemen regarding Mr. Mobley,” including “[r]ecords discussing whether Mr.

Mobley was a target of intelligence interest” and “[a]ll records created after January 1, 2010,

relating to visits of U.S. agents . . . to Mr. Mobley” in the hospital or in prison. See id. at 4–5.

The July 22, 2010, request also sought expedited processing and a fee waiver. See id. at 6–7. On

August 15, 2011, both of the plaintiffs filed a separate FOIA/PA request with the CIA seeking

“all Central Intelligence Agency (‘CIA’) records about Mr. Mobley and Ms. Islam.” Supp. Decl.

of Michele L. Meeks (“Second Meeks Decl.”) Ex. 2, at 1, ECF No. 49-2 (May 25, 2012) (No.

11-2072). This request referred to Mobley’s July 22, 2010 request “only for reference purposes”

and clarified that “the scope of this request is for all CIA records about Mr. Mobley and Ms.

Islam.” Id. 3

The first agency to respond to the plaintiffs was the CIA. In a letter dated September 20,

2011, the CIA notified the plaintiffs that although, “[a]fter a thorough search of the appropriate

records system,” the agency was “able to locate responsive material,” the material “must be

denied in its entirety on the basis of . . . PA exemptions (j)(1) and (k)(1), and FOIA exemptions

(b)(1) and (b)(3).” Second Meeks Decl. Ex. 3, at 1, ECF No. 49-3 (No. 11-2072). The CIA’s

first letter also stated that “[w]ith respect to responsive records that would reveal a classified

connection to the CIA . . . the CIA can neither confirm nor deny the existence or nonexistence of

records responsive to your request.” Id. The CIA’s refusal to confirm or deny the existence of

responsive records was “pursuant to FOIA exemptions (b)(1) and (b)(3), and PA exemptions

(j)(1) and (k)(1).” Id. On January 11, 2012, however, the CIA sent the plaintiffs “amended final

3
Although the July 22, 2010 FOIA/PA request was sent to the CIA, along with the other defendants, the CIA’s
response to that request is not at issue in this case. Rather, the plaintiffs only challenge the CIA’s response to their
August 15, 2011 FOIA/PA request. See Compl. ¶¶ 8–14, ECF No. 3 (No. 11-2072).

3
response letters,” which clarified that the initial response letter “contained inaccuracies,” and the

amended letters “correctly reported that the CIA’s search for records that would reflect an open

or otherwise acknowledged connection to Plaintiffs produced no responsive records.” Decl. of

Michele L. Meeks (“First Meeks Decl.”) ¶ 13, ECF No. 39 (May 25, 2012) (No. 11-2072).

The next agency to respond to Mobley’s request was the State Department. 4 On

December 13, 2011, State granted Mobley’s request for expedited processing. See First Walter

Decl. ¶ 9. State notified Mobley on February 6, 2012, based upon the nature of the request, that

“the offices that were reasonably likely to have responsive documents were the Central Foreign

Policy Records, the Bureau of Diplomatic Security, the Office of Passport Services, the Office of

Overseas Citizens Services, and the American Embassy in Sana’a.” 5 Id. ¶ 19; see also id. Ex. 8,

ECF No. 24-8 (No. 11-2072). Additionally, “based on information from other responsive

documents, [State] also subsequently searched the Office of Legal Adviser.” First Walter Decl.

¶ 19. From December 20, 2011 to May 25, 2012, State notified Mobley by letter each time

searches of these components had been completed, and State either released the responsive

records or notified Mobley of the reason for withholding records or portions thereof. See id.

¶¶ 11–16; see also id. Exs. 7–13, ECF Nos. 24-7 to 24-13 (No. 11-2072).

The searches performed by State ultimately yielded 293 total records responsive to

Mobley’s request. First Walter Decl. ¶ 35. 165 of these records were released to Mobley in full,

75 of the records were released in part with certain portions redacted, and 42 of the records were

withheld in full. Id. The documents that were withheld from release, either in whole or in part,

4
The responses of State and Justice were delayed somewhat due to issues relating to the plaintiffs’ submission of
privacy waivers. See, e.g., First Walter Decl. ¶¶ 5–7 (describing privacy waiver issues); Decl. of Dennis J. Argall
(“First Argall Decl.”) ¶¶ 7–8, ECF No. 25-1 (June 29, 2012) (No. 11-2073) (same).
5
The State Department also indicates that some responsive documents “were located from another Department
component,” all of which were withheld in full, though the State Department has not publicly disclosed the
component from which these documents were retrieved. See First Walter Decl. ¶ 16; see also id. Ex. 13, ECF No.
24-13 (No. 11-2072).

4
were withheld pursuant to one or more of the following: FOIA Exemptions 1, 5, 6, and 7(C);

and PA Exemptions (d)(5), (k)(1), and (k)(2). See id. ¶¶ 36–53. The remaining eleven records

were referred to the Department of the Army (in particular the Office of the Provost Marshal

General (“OPMG”)) on March 5, 2012, for their review and direct response to Mobley, and all

of these eleven records were eventually withheld in full by the OPMG, pursuant to FOIA

Exemption 1 and PA Exemption (k)(1). Id. ¶ 35; see also FAC ¶¶ 21–24; Decl. of John G.

Hargitt (“First Hargitt Decl.”) ¶¶ 4, 6, ECF No. 36-1 (June 25, 2012) (No. 11-2072). Mobley

also filed a separate FOIA request with the OPMG on June 25, 2012, seeking any responsive

records beyond the eleven records that had already been referred by State to the OPMG. See

FAC ¶ 31. In response, the OPMG expedited the request and issued a final determination on

July 19, 2012, identifying one responsive record and withholding it in full, pursuant to FOIA

Exemption 1 and PA Exemption (k)(1). Id. ¶¶ 31–32; see also Decl. of John G. Hargitt (“Second

Hargitt Decl.”) ¶ 6, ECF No. 42-5 (Aug. 30, 2012) (No. 11-2073).

The final agencies to provide a final response to Mobley were Defense and Justice.

Beginning with Defense, Mobley’s counsel clarified with Defense that he only believed that

Defense possessed records responsive to line items 10, 14, and 15 of his FOIA/PA request. See

FAC ¶¶ 11–12. 6 Defense then referred this request to the Defense Intelligence Agency (“DIA”),

which is a component of Defense and was “most likely . . . to have potentially received

intelligence reports stemming from the alleged interrogations of Mr. Mobley by ‘Khan from

DOD’ or any other government agent or agency.’” FAC ¶ 13; see also Decl. of Alesia Y.

Williams (“First Williams Decl.”) ¶ 6, ECF No. 20 (June 18, 2012) (No. 11-2073). On May 11,

2011, the DIA granted expedited processing of Mobley’s request because “news articles

6
These line items referred to a U.S. agent who allegedly interrogated Mobley in Yemen who identified himself as
“Khan from DOD.” See First Walter Decl. Ex. 1, at 4–5; FAC ¶ 12.

5
suggested that plaintiff Sharif Mobley was facing trial in a capital case in Yemen.” First

Williams Decl. ¶ 7. The DIA then “conducted a search to determine if [the DIA] was in

possession of any open-source news articles that referenced plaintiffs generally or the criminal

matter concerning plaintiff Sharif Mobley in Yemen.” Id. ¶ 8. Although this search yielded

responsive records, “these articles were part of the general news monitoring performed by other

members of the Intelligence Community” and therefore “the DIA FOIA Office referred each of

these open-source news articles to the agency that originated the distribution with the request that

the distributor respond directly to the plaintiffs.” Id. Despite the expedited status of Mobley’s

request, it was not until May 4, 2012—nearly one year after the request was expedited—that the

DIA notified Mobley that 41 responsive documents “were referred to another government

agency” and that “[t]o the extent that [Mobley] is requesting any intelligence information in the

possession of DIA concerning himself or his family, my response is to advise you that DIA can

neither confirm nor deny the existence of the requested information.” First Williams Decl. Ex. A

at 1, ECF No. 20-1. 7

The 41 responsive records identified by the DIA were located in the Open Source Center

(“OSC”) and referred to the CIA on June 17, 2011. See Decl. of Michele L. Meeks (“Third

Meeks Decl.”) ¶ 5, ECF No. 42-1 (Sept. 4, 2012) (11-2073). The OSC “collects, monitors,

processes, analyzes, and disseminates publicly available information from primarily foreign

sources.” Id. ¶ 8. Of the 41 documents referred to the CIA, 28 of the documents were released

in full, six of the records were referred back to Defense, one record was referred to State, 8 and

7
Mobley also forwarded his request to the U.S. Special Operations Command (“SOCOM”)—a component of
Defense—on August 14, 2011, and on October 14, 2011, SOCOM “provided a ‘no-records’ response to plaintiff.”
See Decl. of Mark A. Clark (“Clark Decl.”) ¶ 4, ECF No. 21 (No. 11-2073). In his First Amended Complaint in No.
11-2073, Mobley has withdrawn the cause of action challenging SOCOM’s response to their FOIA/PA request.
Compare Compl. ¶¶ 18–25, ECF No. 3 (No. 11-2073), with FAC ¶¶ 9–36.
8
Defense and State have since released these seven records to the plaintiffs. See Third Meeks Decl. ¶ 6.

6
the CIA withheld the remaining six records under FOIA Exemption 3 because the six records,

although technically publicly available, were “subject to limited distribution” and “reveal certain

sensitive but unclassified intelligence sources and methods.” Id. ¶¶ 6–7, 9. The CIA notified the

plaintiffs of the decision to withhold these six documents by letter dated January 25, 2012. See

id. ¶ 7.

Finally, the response to Mobley’s FOIA/PA request by Justice, for purposes of these

related actions, was made by the Federal Bureau of Investigation (“FBI”). The FBI informed

Mobley by letter dated April 5, 2011 that it was processing his request and that the FBI was

“searching the indices to our Central Records System [or ‘CRS’] for the information you

requested.” See First Argall Decl. Ex. D at 1, ECF No. 25-5. The FBI granted Mobley’s request

for expedited processing by letter dated May 23, 2011. See First Argall Decl. Ex. I at 1, ECF

No. 25-10. On August 17, 2011, after the plaintiffs submitted the privacy waiver of Ms. Islam,

the FBI treated the privacy waiver as a new FOIA request, and assigned it a distinct tracking

number. See First Argall Decl. Ex. N, ECF No. 25-15. On August 18, 2011, Mobley’s counsel

wrote the FBI an e-mail clarifying that Ms. Islam’s privacy waiver “was not a new request; it

was an additional waiver form for use when processing [Mobley’s request], which was for

records about Sharif Mobley and his family.” First Argall Decl. Ex. O, ECF No. 25-16 (No. 11-

2073).

On August 29, 2011, Mobley’s counsel contacted the FBI via e-mail, asking that the

agency “please ensure that you search for all ‘main’ files and all ‘reference’ or ‘cross-reference’

files” and also requesting that the FBI search ten specific types of records systems. See First

Argall Decl. Ex. P at 1, ECF No. 25-17. Similarly, on September 21, 2011, Mobley’s counsel

contacted the FBI via e-mail to request that the FBI “include the Baltimore Field Office in your

search” along with the Washington, D.C., Field Office. See First Argall Decl. Ex. R, at 1, ECF
7
No. 25-19. On May 4, 2012—the same date that the DIA provided its final response—the FBI

notified Mobley that it had located eighty-five pages of responsive records, and in the same

correspondence the FBI released all eighty-five pages in part, with certain portions redacted

pursuant to one or more of the following: FOIA Exemptions 1, 6, and 7(C); and PA Exemption

(j)(2). See First Argall Decl. ¶ 24.

The plaintiffs filed both of the instant related actions on November 22, 2011, at which

time only the CIA had provided a final determination regarding the plaintiffs’ FOIA/PA request. 9

Currently pending before the Court are the defendants’ motions for summary judgment, as well

as certain defendants’ supplemental motions for summary judgment, in both related actions. See

Def. Dep’t of Defense’s Supplemental Mot. for Summ. J., ECF No. 42 (No. 11-2073); Def.

Dep’t of State’s Supplemental Mot. for Summ. J., ECF No. 36 (No. 11-2072); Defs.’ Mot. for

Summ. J., ECF No. 25 (No. 11-2073); Defs.’ Mot. for Summ. J., ECF No. 22 (No. 11-2072).

For the reasons discussed below, the Court grants both motions in full, with one minor exception

discussed in more detail below.

II. LEGAL STANDARDS

A. FOIA

Congress enacted the FOIA to promote transparency across the government. See 5

U.S.C. § 552; Quick v. U.S. Dep’t of Commerce, Nat’l Inst. of Standards & Tech., 775 F. Supp.

2d 174, 179 (D.D.C. 2011). 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 &

9
The plaintiffs constructively exhausted their administrative remedies because twenty working days had elapsed
either since they had submitted their FOIA requests or, in the case of the CIA, twenty working days had elapsed
since the agency had received the plaintiffs’ administrative appeal of the agency’s final determination. See Compl.
¶¶ 13, 24, ECF No. 3 (No. 11-2072); Compl. ¶¶ 16, 24, 37 (No. 11-2073); see also 5 U.S.C. § 552(a)(6) (providing
for constructive exhaustion of administrative remedies in FOIA cases).

8
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).

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.
9
When an agency’s response is neither to confirm nor deny the existence of responsive

documents—commonly known as a Glomar response 10—the agency “must demonstrate that

acknowledging the mere existence of responsive records would disclose exempt information.”

Elec. Privacy Info. Ctr. v. NSA, 678 F.3d 926, 931 (D.C. Cir. 2012). “In Glomar cases, courts

may grant summary judgment on the basis of agency affidavits that contain ‘reasonable

specificity of detail rather than mere conclusory statements, and if they are not called into

question by contradictory evidence in the record or by evidence of agency bad faith.’” Id.

(quoting Gardels v. CIA, 689 F.2d 1100, 1105 (D.C. Cir. 1982)). “The supporting affidavit must

justify the Glomar response based on ‘general exemption review standards established in non-

Glomar cases.’” Id. (quoting Wolf v. CIA, 473 F.3d 370, 374–75 (D.C. Cir. 2007)).

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

10
Glomar responses are “named for the Hughes Glomar Explorer, a ship used in a classified Central Intelligence
Agency project ‘to raise a sunken Soviet submarine from the floor of the Pacific Ocean to recover the missiles,
codes, and communications equipment onboard for analysis by United States military and intelligence experts.’”
Roth v. U.S. Dep’t of Justice, 642 F.3d 1161, 1171 (D.C. Cir. 2011) (quoting Phillippi v. CIA, 655 F.2d 1325, 1327
(D.C. Cir. 1981)).
In the 1986 Freedom of Information Reform Act, Congress codified in § 552(c) the use of a Glomar response for the
following three limited categories of agency records: (1) law enforcement records described in § 552(b)(7)(A),
which if disclosed could reasonably be expected to interfere with enforcement proceedings; (2) informant records;
and (3) certain classified records maintained by the FBI. Pub. L. No. 99-570, §§ 1801–04, 100 Stat. 3207, 3207-48
to 3207-50 (1986); see 5 U.S.C. § 552(c) (for these excluded categories of records, allowing agencies to “treat the
records as not subject to the requirements of this section”); see also Benavides v. DEA, 976 F.2d 751, 752–53 (D.C.
Cir. 1992) (per curiam) (construing the phrase “not subject to the requirements of this section” to “permit a
Glomarization where the information’s status has not been officially confirmed, but to permit analysis under other
exemptions like that afforded any other document sought under FOIA, where the status has been so confirmed”).
Even if any of the defendants in this action were relying upon § 552(c) to withhold any records, the Court would not
be permitted to comment on the public record about the existence of such reliance.

10
of Homeland Sec., 852 F. Supp. 2d 66, 72 (D.D.C. 2012) (citing Vaughn v. Rosen, 484 F.2d 820,

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 (“Weisberg I”), 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)).

B. Privacy Act

The Privacy Act, 5 U.S.C. § 552a, “regulates the ‘collection, maintenance, use, and

dissemination of information’ about individuals by federal agencies.” Wilson v. Libby, 535 F.3d

697, 707 (D.C. Cir. 2008) (quoting Doe v. Chao, 540 U.S. 614, 618 (2004)). The statute
11
provides that, if any federal agency maintains a “system of records,” it must “upon request by

any individual to gain access to his record or to any information pertaining to him which is

contained in the system, permit him . . . to review the record and have a copy made of all or any

portion thereof in a form comprehensible to him.” 5 U.S.C. § 552a(d)(1). The statute defines a

“system of records” as “a group of any records under the control of any agency from which

information is retrieved by the name of the individual or by some identifying number, symbol, or

other identifying particular assigned to the individual.” Id. § 552a(a)(5). If an agency “refuses

to comply with an individual request,” the individual may bring a civil action against the agency.

See id. § 552a(g)(1)(B).

The Privacy Act, however, also permits agencies to exempt certain systems of records

from the requirements of § 552a(d). See 5 U.S.C. § 552a(j)–(k) When an agency moves for

summary judgment on the basis of a statutory exemption, it “bears the burden of sustaining its

decision to claim an exemption from disclosure.” Wheeler v. CIA, 271 F. Supp. 2d 132, 136

(D.D.C. 2003) (citing 5 U.S.C. § 552a(g)(3)(A)). Much like in the FOIA context, at the

summary judgment stage, “[i]n a Privacy Act case, the Court may rely on agency affidavits or

declarations.” Jimenez v. Exec. Office for U.S. Attorneys, 764 F. Supp. 2d 174, 180 (D.D.C.

2011); accord Chambers v. U.S. Dep’t of Interior, 568 F.3d 998, 1003 (D.C. Cir. 2009) (holding

that “[i]n a suit seeking agency documents—whether under the Privacy Act or FOIA—‘[a]t the

summary judgment stage . . . the court may rely on a reasonably detailed affidavit”).

III. DISCUSSION

In these related actions, the plaintiffs challenge four separate aspects of the defendants’

responses to the plaintiffs’ FOIA/PA requests. First, the Court will address the plaintiffs’

challenges to the adequacy of certain defendants’ searches for records. Second, the Court will

discuss the plaintiffs’ challenges to the propriety of certain defendants’ Glomar responses, i.e.,
12
refusals to confirm or deny the existence of responsive records. Third, the Court will discuss

whether the defendants have adequately justified their determinations to withhold certain

responsive records. Finally, the Court will assess whether certain defendants sufficiently

established that all “reasonably segregable portion[s]” of the withheld records were provided to

the plaintiffs. See 5 U.S.C. § 552(b).

A. The Adequacy of the Defendants’ Searches

As discussed above, “an agency responding to a FOIA request must ‘conduct[] a search

reasonably calculated to uncover all relevant documents,’ and, if challenged, must demonstrate

‘beyond material doubt’ that the search was reasonable.” Truitt v. Dep’t of State, 897 F.2d 540,

542 (D.C. Cir. 1990) (footnotes omitted) (quoting Weisberg I, 705 F.2d at 1351). The adequacy

of a search “is judged by a standard of reasonableness and depends, not surprisingly, upon the

facts of each case.” Weisberg v. U.S. Dep’t of Justice (“Weisberg II”), 745 F.2d 1476, 1485

(D.C. Cir. 1984). “The question is not whether there might exist any other documents possibly

responsive to the request, but rather whether the search for those documents was adequate.”

Steinberg v. U.S. Dep’t of Justice, 23 F.3d 548, 551 (D.C. Cir. 1994) (quoting Weisberg II, 745

F.2d at 1485). “Mere speculation that as yet uncovered documents may exist does not undermine

the finding that the agency conducted a reasonable search for them.” SafeCard Servs., Inc. v.

SEC, 926 F.2d 1197, 1201 (D.C. Cir. 1991).

1. CIA

The plaintiffs first contend that the CIA’s search for records reflecting an open or

otherwise acknowledged affiliation between the CIA and the plaintiffs was inadequate for two

reasons. First, the plaintiffs argue that the CIA “improperly failed to search the OSC for

responsive records” based on the fact that 41 responsive records from the OSC were referred to

the CIA by the DIA. See Pls.’ Opp’n to Def.’s Mot. for Summ J. (“Pls.’ Opp’n”) at 7, ECF No.
13
40 (No. 11-2072). Second, the plaintiffs argue that the CIA “improperly failed to search the

FOIA office for records about Plaintiffs,” which the plaintiffs say was within the scope of their

request for records. Id. at 7–8.

a) Failure to Search the Open Source Center for Responsive Records

With respect to the plaintiffs’ complaint about the failure to search the OSC, the CIA

responds that because “most of the records contained in the DNI OSC are generally available to

the public both through their original sources and through the World News Connection, CIA

presumes in most cases that a FOIA requester does not want CIA to search those records unless

the requester specifically asks for them.” Defs.’ Reply in Supp. Mot. for Summ. J. (“Defs.’

Reply”) at 3, ECF No. 49 (No. 11-2072). The CIA contends that such a policy is reasonable for

two main reasons. First, it “ensures that requesters do not receive public records that they do not

want, particularly when requesters will often be charged fees for an agency to process and

release publicly available material.” Id. Additionally, “requiring requesters to submit separate

requests for publicly available records is consistent with FOIA’s requirement that agencies

‘make records promptly available’ because public records can often . . . be released more quickly

without [the] need to process them for redactions.” Id. (citation omitted); see also Cunningham

v. Holder, 842 F. Supp. 2d 338, 345–46 (D.D.C. 2012) (“The requirement of a specific request

for public records makes sense.”). Alternatively, the CIA responds that it will agree to search the

OSC and turn over any responsive records, “but it will charge plaintiffs fees for that purpose”

because “plaintiffs should not be entitled to circumvent the applicable access fees [from World

News Connection or Westlaw] and obtain those records for free simply by submitting a FOIA

request.” Id. at 3–4; see also Second Meeks Decl. ¶¶ 6–13 (explaining the CIA’s policy

regarding search for publicly available records in response to FOIA requests).

14
The plaintiffs, however, contest the CIA’s premise that the OSC is comprised mostly of

publicly available records. Most glaringly, the plaintiffs point out that “[o]f the twenty-eight

released records, twelve are available on the World News Connection” and “twelve out of

twenty-eight is not ‘most’ by even the most lenient standards.” Pls.’ Sur-Reply to Defs.’ Mot.

for Summ. J. (“Pls.’ Surreply”) at 2, ECF No. 53 (No. 11-2072). The plaintiffs also observe that

“the fact that CIA withheld seven records in full speaks volumes about whether or not this

information is publicly available.” Id. The plaintiffs concede that “CIA should not have to

process OSC records which are available on the World News Connection,” but they argue

instead that “CIA should . . . be required to search for and process all OSC records which are not

[publicly available].” Id.

On the one hand, the CIA is correct that a policy of “generally interpret[ing] [first-

person] FOIA requests . . . to be for non-public documents” is reasonable for all of the reasons

that similar policies have been upheld in prior cases. Defs.’ Reply at 3 (No. 11-2072); see, e.g.,

Cunningham, 842 F. Supp. 2d at 345 (“EOUSA’s request that Plaintiff submit a separate specific

request for public records is consistent with FOIA’s requirements.”); McLaughlin v. U.S. Dep’t

of Justice, 598 F. Supp. 2d 62, 66 & n.2 (D.D.C. 2009) (upholding agency’s decision to charge

duplication fees for publicly available records and observing that a policy of presuming that

FOIA requests are for only non-public records “comports with the statutory requirement that

agencies ‘make [responsive] records promptly available’”). The problem for the CIA is that only

“[m]ost material from the OSC is . . . available to the public,” Second Meeks Decl. ¶ 7, and

therefore some portion of the records contained in the OSC database are necessarily non-public.

This point is confirmed by the plaintiffs’ statement that only twelve of the twenty-eight OSC

records it received from the CIA were publicly available. See Pls.’ Surreply at 2 (No. 11-2072).

In other words, although the CIA’s policy regarding the processing of publicly available records
15
is reasonable in theory, that policy does not apply to the entire OSC database, and for that reason

the CIA’s determination not to search the OSC database in response to the plaintiffs’ request is

problematic to the extent that non-public, responsive records exist in the OSC.

The CIA appears to agree that the plaintiffs are entitled to receive any non-public,

responsive records contained in the OSC database, free of charge. See Second Meeks Decl. ¶ 12

(“The [CIA] recognizes that, with respect to non-public records, requestors should generally be

able to obtain information about themselves free of charge . . . .”). Similarly, the plaintiffs agree

that “CIA should not have to process OSC records which are [not publicly] available.” Pls.’

Surreply at 2 (No. 11-2072). The practical problem lies in deciding which party has the burden

of determining which OSC records are publicly available and which are not. The plaintiffs

propose placing that burden on the CIA. See id. The CIA, however, proposes placing that

burden on the plaintiffs by essentially presuming that all OSC records are publicly available and

charging fees for the production of all such records. See Defs.’ Reply at 4 (No. 11-2072).

The parties have presented no evidence regarding how burdensome it would be to

distinguish between public and non-public records retrieved from the OSC, but this will often be

self-evident with the publication origin of the document, apparent on its face. Thus, the CIA

must search the OSC database for any records responsive to the plaintiffs’ FOIA/PA request and

must release any non-exempt, responsive records to the plaintiffs. Additionally the CIA may

choose, in its discretion, to charge fees to the plaintiffs for any records that it produces from this

search that it identifies as being publicly available, and the plaintiffs may challenge any fees that

they believe are improperly levied on this basis. 11 If the plaintiffs object to any of the fees

11
The CIA indicates that it has a policy of requiring FOIA requesters to “commit to pay fees before the [CIA] will
process” requests for publicly available records. See Second Meeks Decl. ¶ 13. The plaintiffs do not challenge this
policy in the instant related actions, and thus the plaintiffs should expect to comply with this policy if they seek to
have the CIA perform a search of the OSC database.

16
charged, they should raise those objections at the administrative level before challenging them in

a civil action, in order to give the agency an opportunity to correct any errors it may have made

before seeking assistance from a court. See, e.g., Avocados Plus Inc. v. Veneman, 370 F.3d

1243, 1247 (D.C. Cir. 2004) (holding that administrative exhaustion is intended, inter alia, to

“giv[e] agencies the opportunity to correct their own errors” (internal quotation mark omitted)).

b) Failure to Search the FOIA Office for Responsive Records

The plaintiffs also argue that the CIA’s search was inadequate because it “improperly

failed to search the FOIA office for records about Plaintiffs.” Pls.’ Opp’n at 7 (No. 11-2072).

The CIA states that its FOIA officers “do not consider records of previous FOIA, PA, or

[Mandatory Declassification Review, or ‘MDR’] requests . . . to be responsive to a current

request” except where a request “expressly seek[s] records of previous FOIA, PA, or MDR

requests by the requester.” First Meeks Decl. ¶ 14. The plaintiffs nevertheless complain that

their FOIA/PA requests “were explicitly ‘for all CIA records about Mr. Mobley and Ms. Islam’”

and “it is in violation of FOIA for CIA to impose a requirement that ‘requests expressly seek[]

records of previous FOIA, PA, or MDR requests.’” Pls.’ Opp’n at 7–8 (No. 11-2072). The

CIA’s response is that they interpreted the plaintiffs’ August 15, 2011, FOIA/PA request to

“expressly disclaim[] any interest in records regarding the [July 22, 2010] version of their FOIA

request.” Defs.’ Reply at 4 (No. 11-2072). In support of this argument, the CIA cites language

from the plaintiffs’ August 15, 2011 request, which stated that it was mentioning the July 22,

2010 request “only for reference purposes.” See id.; see also Second Meeks Decl. Ex. 2, at 1.

The CIA says that it “interpreted that statement as an express disavowal of plaintiffs’ interest in

17
obtaining records regarding the July 22, 2010 request” and that such an interpretation was

“perfectly reasonable.” Defs.’ Reply at 4 (No. 11-2072). 12

The D.C. Circuit has established that an agency “has a duty to construe a FOIA request

liberally,” Nation Magazine, 71 F.3d at 890, and are “bound to read it as drafted” not as “agency

officials . . . might wish it was drafted,” Miller v. Casey, 730 F.2d 773, 777 (D.C. Cir. 1984). In

this regard, it is clear that, for example, when a FOIA requester “seek[s] all of a certain set of

documents” while also “evincing a heightened interest in a specific subset thereof,” such a

request “is reasonably susceptible to the broader reading” of seeking the entire set of documents

despite the fact that a specific subset of documents is named. LaCedra v. Exec. Office for U.S.

Attorneys, 317 F.3d 345, 348 (D.C. Cir. 2003); see also Nation Magazine, 71 F.3d at 890

(holding that FOIA request seeking records “‘pertaining to’ [Ross] Perot” and specifically

“ask[ing] for records indexed under Perot’s name” was “sufficient to alert the agency that

appellants sought information about Perot, even if it was not indexed under his name”).

In this case, the language of plaintiffs’ request sent mixed signals about the request’s

intended scope. On the one hand, it explicitly sought “all [CIA] records about Mr. Mobley and

Ms. Islam,” but it also explicitly deemphasized the relevance of the plaintiffs’ prior FOIA/PA

request by stating that it referred to that request “only for reference purposes.” Second Meeks

Decl. Ex. 2, at 1. It is unclear from the four corners of the August 15, 2011 request what the

plaintiffs meant by “only for reference purposes,” but the CIA was reasonable in interpreting

“only for reference purposes” to mean not for purposes of expressing an interest in records

associated with prior FOIA/PA requests. Thus, the plaintiffs’ specific disclaimer regarding the

July 22, 2010 request could be reasonably interpreted to disavow an interest in obtaining records

12
By making this argument, the CIA implies that the plaintiffs’ July 22, 2010 FOIA/PA request was the only
previous FOIA/PA request made by the plaintiffs to the CIA, though the record is unclear on whether this is in fact
the case.

18
about that prior request, and therefore the CIA’s decision not to search its FOIA office for

responsive records was reasonable. 13

In sum, the Court holds that the CIA is only entitled to a partial grant of summary

judgment regarding the adequacy of its search. The CIA must search the OSC for records

responsive to the plaintiffs’ request, as discussed supra. The CIA is, however, entitled to

summary judgment as to the adequacy of all other aspects of its search.

2. State Department

Next, the plaintiffs challenge the adequacy of the State Department’s search on the

grounds that “State failed to follow clear leads when performing its search for responsive

records.” Pls.’ Opp’n at 27 (No. 11-2072). In their surreply, the plaintiffs clarify that they

“concede the adequacy of the majority of State’s search” and only challenge State’s failure to

assert that it searched the component where eighteen classified documents originated. See Pls.’

Surreply at 8 (No. 11-2072). The only information that State has provided on the public record

regarding these eighteen documents, which State refers to as X1–X18, are the year in which each

document was created and the number of pages contained in each document. See First Walter

Decl. ¶¶ 182–99. Other than this, State maintains that “[n]o further information can be provided

regarding [these] document[s] on the public record.” Id. The government has also “submitted a

classified, ex parte, in camera filing” that elaborates on the nature of records X1–X18. See

Notice of Ex Parte, In Camera Filing, ECF No. 29 (No. 11-2072). As the plaintiffs concede, the

State Department has no obligation to name the component from which these eighteen

documents originate. See Pls.’ Surreply at 8 (No. 11-2072) (conceding that “State does not have

to describe these records, or even the component in which they originated”). Upon review of the

13
Since the Court bases its holding about the reasonableness of the CIA’s decision on the particular language of the
plaintiffs’ request, the Court need not address the reasonableness of the CIA’s broader policy of considering records
of previous FOIA, PA, or MDR requests to be non-responsive unless a requester specifically requests such records.

19
government’s ex parte, in camera filing, in conjunction with the public declarations submitted by

the State Department, the Court is satisfied that the State Department searched all of its

components reasonably likely to contain responsive information. Therefore, the State

Department’s search was adequate, and the plaintiffs’ objections to the State Department’s

search are unavailing.

3. FBI

In his final challenge related to search adequacy, Mobley contends that the FBI’s search

for responsive records was inadequate for two interrelated reasons. First, he says that the FBI’s

search was inadequate because it did not search certain specific records systems that Mobley’s

counsel asked it to search. See Pl.’s Opp’n to Defs.’ Mot. for Summ. J. (“Pl.’s Opp’n”) at 21–22,

ECF No. 45 (No. 11-2073). Second, Mobley argues that “[t]he inadequacy of FBI’s search is

demonstrated by the ample evidence that other records exist.” Id. at 22. For this point, Mobley

cites the fact that, in related Civil Case No. 11-2072, “State produced numerous records to

Mobley, some of which consisted of extensive email traffic between State and FBI,” which

“demonstrate the existence of significant email records about Mobley that were not identified in

FBI’s search,” and Mobley also points to certain press coverage, which indicated that “FBI was

even discussing Mobley with the press,” yet “no records of interaction with the press were

identified by FBI’s search.” Id.

To provide some context to Mobley’s argument, as discussed briefly above, Mobley’s

counsel contacted the FBI via e-mail on August 29, 2011—slightly more than thirteen months

after Mobley submitted his FOIA/PA request to the FBI—to ask that:

[W]hen conducting your search for responsive records, please ensure that you
search all “main” files and all “reference” or “cross-reference” files, and that you
search the following records systems:

20
1) all shared drives, including the “I-drive” and “S-drive,” especially for FBI
[Headquarters] and the New Jersey and New York field offices (this includes
shared drives which have been assigned letters besides “I-drive” and “S-drive”);
2) the ELSUR index;
3) all “tickler” files;
4) Automated Case Support (ACS) files;
5) Electronic Case Files (ECF);
6) Universal Index Files (UIF);
7) Investigative Case Management (ICM) files;
8) Legal Attache (LEGAT) files, especially for LEGATs with responsibility for
Yemen from 2006 to the present;
9) Confidential Source System (CSS) files; and
10) all “zero” files or other record systems not identified above which are not
normally searched in response to FOIA/PA requests.

First Argall Decl. Ex. P, at 1. As explained in the Bureau’s sworn declaration, “[t]he FBI

conducted a search of the [Central Records System, or ‘CRS’] utilizing a phonetic breakdown of

Sharif Mobley’s name, including any variations of the first and last name that sound like or are

spelled differently than the name.” First Argall Decl. ¶ 31. “The FBI also used the plaintiff’s

date of birth to facilitate the identification of responsive records.” Id. The CRS “enables the FBI

to maintain all information which it has acquired in the course of fulfilling its mandated law

enforcement responsibilities” and includes “administrative, applicant, criminal, personnel, and

other files compiled for law enforcement purposes.” Id. ¶ 25. “The CRS currently consists of

over 115 million records.” Second Decl. of Dennis J. Argall (“Second Argall Decl.”) ¶ 3, ECF

No. 50-2 (Oct. 12, 2012) (No. 11-2073).

Although Mobley concedes that “several of these systems” that his lawyer specifically

requested to be searched, including ACS, ECF, UIF, ICM, and LEGAT, “have been incorporated

into the CRS,” Mobley maintains that “many have not, including the shared drives, the ELSUR

index, ‘tickler’ files, CSS files, ‘zero’ files, and emails.” Pl.’s Opp’n at 21–22 (No. 11-2073).

Several of these complaints were cleared up by the FBI’s second sworn declaration, which

clarified that (1) the FBI’s original search would have identified any CSS or “zero” files, Second

21
Argall Decl. ¶ 6, (2) the ELSUR indices were searched and yielded no responsive results, see id.

¶ 8, and (3) because “tickler” files “were a phenomenon associated with earlier times in the FBI”

and “would have been historical in nature,” there “is no need for the FBI to search for tickler

files” absent an express request to do so, see id. ¶ 7. Finally, the FBI contends that it need not

search shared drives or unspecified e-mail systems “[g]iven the broad search of the

comprehensive CRS system and the ELSUR indices” and Mobley’s failure to ask the FBI

specifically to search e-mail systems. See id. ¶ 9(b); Defs.’ Reply in Supp. of Mot. for Summ. J.

(“Defs.’ Reply”) at 16–19, ECF No. 50 (No. 11-2073). Specifically, the FBI argues that, with

respect to the documents that Mobley says exist based on documents produced by State, “FBI’s

failure to turn up documents that plaintiff speculates exist does not mean that FBI’s search was

inadequate.” Defs.’ Reply at 18 (No. 11-2073) (citing Wilbur, 355 F.3d at 678).

Mobley does not appear to contest the FBI’s explanations regarding the CSS files, “zero”

files, ELSUR indices, or “tickler” files. Instead, Mobley focuses his attention on the FBI’s

refusal to search shared drives and unspecified e-mail systems. See Pl.’s Sur-Reply to Defs.’

Mot. for Summ. J. (“Pl.’s Surreply”) at 11–13, ECF No. 55 (No. 11-2073). As to the shared

drives, Mobley cites a D.C. Circuit case that he says rejected the FBI’s argument, i.e., that a

comprehensive search of the CRS and the ELSUR indices would render any further searching

unduly burdensome. See Pl.’s Surreply at 12 (citing Campbell v. U.S. Dep’t of Justice, 164 F.3d

20, 28 (D.C. Cir. 1998)). Campbell stands for the proposition that “the court evaluates the

reasonableness of an agency’s search based on what the agency knew at [the search’s]

conclusion rather than what the agency speculated at its inception.” Campbell, 164 F.3d at 28.

Thus, the Court held that even though “the FBI started with the reasonable assumption that only

a CRS review would be necessary . . . that assumption became untenable once the FBI

discovered information suggesting the existence of documents that it could not locate without
22
expanding the scope of its search.” Id. In particular, in Campbell, “some of the Bureau’s own

documents suggest[ed]—through administrative annotations and express references in the text—

that searching [other records systems] would have identified additional information.” Id. at 27.

Mobley contends that Campbell “is important for three separate but equally important

reasons.” Pl.’s Surreply at 12 (No. 11-2073). First, Mobley argues that the FBI was required to

search all shared drives and unspecified e-mail systems for responsive records because he

“established in his Opposition several places in FBI’s release which suggest the existence of

documents it had not located.” Id. at 13. Hence, Mobley contends that “upon discovering this

information, [the FBI] was required to expand its search to locate any responsive documents

located in other systems.” Id. (citing Campbell, 164 F.3d at 28). In his opposition brief, Mobley

did cite one example in the FBI’s release that could have suggested the existence of other,

unreleased FBI documents. 14 In particular, Mobley stated in his opposition that “[d]uring the

course of several interviews documented in released records, Mobley and the interviewers

discussed an FBI investigation into his wife and mother-in-law for unemployment fraud” and

“[n]o records of this investigation were released or withheld by FBI.” Pl.’s Opp’n at 22–23 (No.

11-2073).

Mobley urges that this information in released FBI records constitutes “significantly

more than ‘mere speculation’” and warrants more extensive searching by the FBI. Id. at 23–24.

14
Mobley also points to several “leads” contained in documents released by the State Department, rather than the
FBI. See Pl.’s Opp’n at 22 (No. 11-2073). The FBI was not required, however, to follow up on leads contained in
documents released by other agencies. An agency’s obligation to follow up on “leads” is limited to the duty not to
“ignore what it cannot help but know” and “pursue only a lead [the agency] cannot in good faith ignore.”
Kowalczyk v. Dep’t of Justice, 73 F.3d 386, 389 (D.C. Cir. 1996). Though an agency must follow up on leads that it
“cannot in good faith ignore,” an agency has no obligation, let alone the resources, to follow up on leads that might
be contained in documents released by other agencies. Since the record in this case does not indicate that the FBI
was aware of the existence of any leads contained in State Department records before the conclusion of the FBI’s
search process, see Campbell, 164 F.3d at 28, the FBI had no obligation to follow up on any leads contained in those
records. Nor did the FBI have an obligation to follow up on leads contained in press coverage of Mobley, as
Mobley argues. See Pl.’s Opp’n at 22 (No. 11-2073) (citing New York Times article and complaining that “no
records of interaction with the press were identified by FBI’s search either”).

23
The Court disagrees. Even assuming that the released FBI records establish the existence of an

FBI investigation into Ms. Islam, such records would not have been responsive to Mobley’s

FOIA request in any event. The parties do not address this point, but Mobley’s request generally

sought “all records in any way relating to, pertaining to, or mentioning [Mobley].” First Argall

Decl. Ex. A at 2. The request also specifically sought records relating to Mobley’s abduction in

Yemen on January 26, 2010, the United States government’s involvement in that abduction, and

the United States government’s interrogation of Mobley while he was detained in Yemen. Id. In

specifying the types of records contemplated by these specific categories, the request also

mentioned “all records created after January 1, 2010, relating to the Mobley family’s dealings at

the U.S. Embassy-Sana’a.” Id. at 3 (emphasis added). Nowhere in this request, however, did

Mobley say that he was requesting all documents about Ms. Islam. Indeed, the only reference to

Ms. Islam was within the request for “all records created after January 1, 2010, relating to the

Mobley family’s dealings at the U.S. Embassy-Sana’a.” Id. (emphasis added). Thus, although

Mobley complains that he is entitled to records about an investigation into his wife for

unemployment fraud, records of such an investigation would not be responsive to even the most

liberal construction of Mobley’s FOIA/PA request. The D.C. Circuit has long held that “mere

reference to other files does not establish the existence of documents that are relevant to [a

requester’s] FOIA request.” Steinberg, 23 F.3d at 552; see id. (“If that were the case, an agency

responding to FOIA requests might be forced to examine virtually every document in its files,

following an interminable trail of cross-referenced documents like a chain letter winding its way

through the mail.”). Therefore, Mobley’s argument that the FBI’s failure to produce any records

about the investigation into Ms. Islam indicates a deficiency in the Bureau’s search is unavailing.

Second, Mobley observes that, in Campbell the “FBI conceded that it would have to

perform an ELSUR search if specifically asked to do so within the FOIA request.” Pl.’s Surreply
24
at 12 (No. 11-2073) (emphasis omitted). From this, Mobley posits that the FBI was required to

search all shared drives because Mobley “specifically instruct[ed] FBI” to do so. Id. Mobley’s

reasoning on this point, however, is incorrect as a matter of law. At the outset, Mobley’s

reliance on Campbell for the proposition that the “FBI conceded that it would have to perform an

ELSUR search if specifically asked to do so within the FOIA request,” id., is misleading. The

portion of the Campbell opinion to which Mobley refers was a recitation by the Court of the

FBI’s argument that “the ‘weight of authority’ justifies refusing to supplement a CRS search

with an ELSUR search unless specifically asked to do so within the FOIA request.” See

Campbell, 164 F.3d at 28. Regardless of what this statement suggests about what the FBI

“conceded,” the FBI’s arguments in litigation do not amount to FOIA precedent. This

concession would not help Mobley in any event because Mobley’s specific demands in this case

came over a year after Mobley’s FOIA request was submitted, in an unsolicited e-mail from his

counsel, rather than “within the FOIA request.” See id. Although Mobley attempts to shoehorn

such communications into the ambit of Campbell by arguing that the FBI’s purported concession

extends to the entire “FOIA request process,” Pl.’s Surreply at 12 (No. 11-2073), it is the law in

this Circuit that an agency “is not obligated to look beyond the four corners of the [FOIA]

request for leads to the location of responsive documents,” Kowalczyk, 73 F.3d at 389.

Relatedly, Mobley’s argument that the FBI was required to search all shared drives

because Mobley “specifically instruct[ed] FBI” to do so, Pl.’s Surreply at 12 (No. 11-2073),

fundamentally misconceives the standard for the adequacy of an agency’s search under the

FOIA. An agency’s search obligations are not dictated by a requester’s demands to search

particular components or databases. Rather, an agency’s search obligations are dictated by

whether the scope of the search is “reasonably calculated to uncover all relevant documents,”

Morley, 508 F.3d at 1114—a standard that an agency satisfies by searching “all files likely to
25
contain responsive materials (if such records exist),” Oglesby, 920 F.2d at 68. Thus, even when

a requester specifically asks an agency to search a particular database, the agency has no

obligation to do so unless that database is “likely to contain responsive materials.” See id.

Campbell stands for this very proposition. In that case, the D.C. Circuit held that the FBI was

required to search the ELSUR and “tickler” files, but only because “some of the [FBI’s]

documents suggest . . . that searching the ELSUR index, or searching for ticklers, would have

identified additional information [responsive to the request].” Campbell, 164 F.3d at 27; see also

id. at 28 (“[A]n agency ‘cannot limit its search to only one record system if there are others that

are likely to turn up the information requested.’” (emphasis added) (quoting Oglesby, 920 F.2d

at 68)). In this case, Mobley has offered no reasoned argument why a search of “all shared

drives,” as per his counsel’s informal e-mail request, would be likely contain responsive

materials, other than the fact that he specifically asked for these drives to be searched and the

incorrect assertion, discussed above, that “several places in FBI’s release . . . suggest[ed] the

existence of [unreleased, responsive] documents.” Pl.’s Surreply at 12–13 (No. 11-2073).

Absent some reason to believe that shared drives are likely to contain responsive materials,

Mobley’s arguments are insufficient to require the FBI to conduct further searches.

Mobley’s final argument under Campbell is that the FBI has not accounted for all shared

drives in its sworn declaration. See Pl.’s Surreply at 12 (No. 11-2073). Mobley complains that,

in the FBI’s second sworn declaration, it “only addresses the ‘I-drive’ and ‘S-drive’” but

“mak[es] no mention of other shared drives and why they were not searched.” Id. In addition to

discussing the “I-Drive” and “S-Drive” in its second sworn declaration, the FBI also appeared to

speak more categorically regarding “shared drives.” See Second Argall Decl. ¶ 9(b). From the

FBI’s declaration it is difficult to ascertain with certainty whether “S-Drive” is a generic term

used within the FBI to refer to all “shared drives” or whether the FBI maintains multiple kinds of
26
shared drives that may be limited in use to function or location. See id. (“‘S-Drive systems are

common drives or shared drives that are currently used by the FBI headquarters and field

offices.”). Mobley’s counsel also asserts for the first time in his surreply that he “recently

learned of the existence of a ‘T-Drive,’” which he implies may also be a shared drive, though he

has offered no evidence to support such an implication. See Pl.’s Surreply at 12–13 (No. 11-

2073).

Whether or not there are other shared drives beyond the “I-Drive” and “S-Drive,”

however, is a red herring. Ultimately, the FBI has averred that “[g]iven the broad search of the

comprehensive CRS system and the ELSUR indices . . . [the FBI’s acting FOIA chief]

determined that there is no reasonable basis to conclude that responsive records are reasonably

likely to be located by further searches of shared drives.” Second Argall Decl. ¶ 9(b). This

conclusion is entitled to “a presumption of good faith,” SafeCard, 926 F.2d at 1200, despite the

fact that its reasoning for why searches of shared drives would be unlikely to uncover responsive

records is quite cursory. 15 Although the agency’s justification for not searching shared drives is

thin, Mobley’s argument for why shared drives are likely to contain responsive records is even

thinner. As discussed above, Mobley’s purported bases for requiring a search of all shared

drives are either conclusory or unsupported, and therefore they are insufficient to rebut the

presumption that the FBI’s averments are in good faith. Therefore, Mobley’s argument that the

FBI’s search was inadequate for failing to search all shared drives must fail.

In sum, all of Mobley’s challenges to the adequacy of the FBI’s search for responsive

records are insufficient to defeat the FBI’s entitlement to summary judgment on this issue.

15
The Court could speculate as to why this is so. For instance, shared drives may be unlikely to contain responsive
materials due to their particular location or specialized function, or perhaps shared drives contain records that are
duplicative of files contained in the CRS and the ELSUR databases.

27
B. The Propriety of the Defendants’ Glomar Response

The next category of issues raised by the plaintiffs is the propriety of the DIA and the

CIA issuing Glomar responses to the plaintiffs’ FOIA/PA requests. A Glomar response is “an

exception to the general rule that agencies must acknowledge the existence of information

responsive to a FOIA request and provide specific, non-conclusory justifications for withholding

that information.” Roth v. U.S. Dep’t of Justice, 642 F.3d 1161, 1178 (D.C. Cir. 2011). Thus, a

Glomar response allows an agency to respond to a FOIA request by neither confirming nor

denying the existence of any records responsive to the request, on the grounds that “confirming

or denying the existence of records would itself ‘cause harm cognizable under a[] FOIA

exception.’” Id. (quoting Wolf, 473 F.3d at 374).

1. CIA

As discussed above, the CIA notified the plaintiffs, in response to their FOIA/PA request

that “[w]ith respect to responsive records that would reveal a classified connection to the CIA . . .

the CIA can neither confirm nor deny the existence or nonexistence of records responsive to your

request.” Second Meeks Decl. Ex. 3, at 1. The plaintiffs challenge this Glomar response on

three grounds: (1) the CIA officially acknowledged the existence of responsive records that

would reveal a classified affiliation with the plaintiffs, and thus it waived its ability to issue a

Glomar response; (2) the CIA improperly invoked FOIA Exemption 1 to support its Glomar

response; and (3) the CIA improperly invoked FOIA Exemption 3 to support its Glomar

response.

a) The CIA Did Not “Waive” Its Ability to Issue a Glomar Response.

The plaintiffs’ first argument is premised on what the CIA has referred to as an

“inaccurac[y]” or “error” in its initial, September 20, 2011, response to the plaintiffs’ request.

See First Meeks Decl. ¶¶ 13, 22. As discussed previously, this initial letter stated that “we were

28
able to locate responsive material.” Second Meeks Decl. Ex. 3, at 1. The amended response

letter, however, which was sent over three months later, on January 11, 2012, admitted that “our

initial response letter contained inaccuracies regarding our search,” and it went on to state that

the CIA was “unable to locate any information or records” after “search[ing] for CIA-originated

responsive records that might reflect an open or otherwise acknowledged Agency affiliation.”

Second Meeks Decl. Ex. 4, at 1. In its brief, the CIA’s only explanation for this about-face was

that it was “based on an internal misunderstanding,” though the nature of that misunderstanding

is unclear. Defs.’ Mem. in Supp of Defs.’ Mot. for Summ. J. (“Defs.’ Mem.”) at 11 n.2, ECF

No. 22 (No. 11-2072).

The plaintiffs contend that this “misunderstanding” is “[o]ne of the key issues” that is “at

the core of CIA’s processing of Plaintiffs’ FOIA/PA requests.” Pls.’ Opp’n at 2 (No. 11-2072).

They argue that, because there is no evidence to establish “that the ‘mistake’ was truly an

innocent administrative error that should have no consequences,” there “is a genuine issue of

material fact regarding the nature of CIA’s ‘mistake’ and the appropriate consequences for the

agency,” which preclude summary judgment on this issue. Id. at 11. Despite this restrained

framing, the bottom line of the plaintiffs’ argument on this issue is that the “CIA waived its right

to issue a Glomar response” because the CIA officially acknowledged the existence of

responsive records. Id. at 6, 8–9.

The fundamental error in the plaintiffs’ argument, however, as the defendants point out,

is that “plaintiffs have made no argument that the CIA’s initial response actually disclosed [the

relevant] Glomar fact,” i.e., the fact that “records revealing a classified connection between

plaintiffs and the CIA” existed. Defs.’ Reply at 6 (No. 11-2072). In order to constitute an

“official acknowledgement” of information that waives an agency’s ability to issue a Glomar

response, “the information requested must be as specific as the information previously released,”
29
the “information requested must match the information previously disclosed,” and “the

information requested must already have been made public through an official and documented

disclosure.” Wolf, 473 F.3d at 378 (quoting Fitzgibbon v. CIA, 911 F.2d 755, 765 (D.C. Cir.

1990)). “In the Glomar context, then, if the prior disclosure establishes the existence (or not) of

records responsive to the FOIA request, the prior disclosure necessarily matches both the

information at issue—the existence of records—and the specific request for that information.”

Id. at 379. In this case, the prior disclosure, i.e., the initial September 20, 2011, response letter,

only disclosed that the CIA was “able to locate responsive material,” and the context of the letter

clearly conveyed that this “responsive material” was limited to responsive records that would

reveal an unclassified connection to the CIA. See Second Meeks Decl. Ex. 3, at 1; First Meeks

Decl. ¶ 22 (stating that the CIA “mistakenly claimed that the CIA was withholding [records

reflecting an unclassified relationship with Plaintiffs]”). This implication was clear because in

the very next paragraph, the letter stated that the CIA could neither confirm nor deny the

existence of “responsive records that would reveal a classified connection to the CIA.” Second

Meeks Decl. Ex. 3, at 1 (emphasis added). Any other reading of this letter would be nonsensical

because it would entail reading the letter to state simultaneously that the CIA both refused to

confirm and confirmed the existence of responsive records reflecting a classified connection to

the CIA.

Since the Court interprets the CIA’s initial response letter to not have established the

existence or nonexistence of responsive records that would reveal a classified connection to the

CIA, the CIA did not waive its ability to issue a Glomar response to those records.

30
b) The CIA’s Invocation of FOIA Exemption 1 to Issue a Glomar
Response Was Procedurally Sound.

In addition to their waiver argument, the plaintiffs contend that “CIA’s invocation of

[FOIA] Exemption (b)(1) fails for both a procedural and a substantive reason.” Pls.’ Opp’n at 12

(No. 11-2072). 16 Procedurally, the plaintiffs argue that “CIA has not demonstrated that it

followed the appropriate steps when determining that the fact of the existence or nonexistence of

responsive records . . . is classified.” Id. The parties refer to “the fact of the existence or

nonexistence of responsive records” as the “Glomar fact.” See id. at 12; see also Defs.’ Reply at

6 (No. 11-2072). In the plaintiffs’ view, “[a] Glomar fact is itself a piece of information,” and

therefore “since [Executive Order 13,526] establishes a uniform system for classifying

information . . . an agency must follow the Order’s procedures when classifying an intangible

piece of information as a Glomar fact just as it would when classifying a document.” Pls.’

Opp’n at 12–13 (11-2072) (emphasis omitted). Hence, under the plaintiffs’ argument, “the

classification of the Glomar fact is improper” because the CIA did not properly classify that fact

under Executive Order 13,536, id., and therefore the CIA was not permitted to issue its Glomar

response under FOIA Exemption 1, which only applies to classified information and information

“specifically authorized under criteria established by an Executive order to be kept secret in the

interest of national defense or foreign policy,” 5 U.S.C. § 552(b)(1).

The CIA responds that plaintiffs improperly “equate the ‘Glomar fact’ with every other

document that an agency classifies pursuant to the Executive Order” because “an agency’s

Glomar response is fundamentally different in nature, as it arises solely in the context of a

response to a request for records.” Defs.’ Reply at 8 (No. 11-2072). In contrast to the plaintiffs,

16
FOIA Exemption 1 provides that “matters that are” either “specifically authorized under criteria established by an
Executive order to be kept secret in the interest of national defense or foreign policy” or “are in fact properly
classified pursuant to such Executive order” are exempt from production under the FOIA. See 5 U.S.C. § 552(b)(1).

31
the CIA takes the position that “the Glomar response is merely a response to a request for

records, not a classified record itself.” Id. In this same vein, the CIA contends that the plaintiffs’

position is in conflict with well-settled FOIA law. In particular, the CIA argues that since a

Glomar determination “does not exist independently of the original request for the responsive

records” and because “[p]laintiffs’ argument would effectively require CIA to create [a] single

piece of paper and apply classification markings every time it [issues a Glomar response],” the

plaintiffs’ argument violates the principle that “FOIA ‘does not obligate agencies to create or

retain documents.’” Id. at 8–9 (quoting Kissinger v. Reporters Comm. for Freedom of the Press,

445 U.S. 136, 152 (1980)).

Executive Order 13,526 “prescribes a uniform system for classifying, safeguarding, and

declassifying national security information” and recognizes that “throughout our history, the

national defense has required that certain information be maintained in confidence in order to

protect our citizens, our democratic institutions, our homeland security, and our interactions with

foreign nations.” Exec. Order No. 13,526, 75 Fed. Reg. 707 (Dec. 29, 2009). It provides that

“information may be originally classified” if four conditions are met:

(1) an original classification authority is classifying the information;
(2) the information is owned by, produced by or for, or is under the control of the
United Stated Government
(3) the information falls within one or more of the categories of information listed
in section 1.4 of this order; and
(4) the original classification authority determines that the unauthorized
disclosure of the information reasonably could be expected to result in
damage to the national security . . . and the original classification authority is
able to identify or describe the damage.

Id. § 1.1(a). Also, at the time that information is originally classified, a number of items must

also “be indicated in a manner that is immediately apparent,” such as the classification level, the

“agency and office of origin,” the date for declassification, and a “concise reason for

32
classification.” Id. § 1.6; see also id. § 1.5 (requiring original classification authority to

“establish a specific date or event for declassification” of classified information). Additionally,

although the ability to issue a Glomar response in response to a FOIA request was first

established through the case law of this Circuit, see Phillippi v. CIA, 546 F.2d 1009, 1012–13

(D.C. Cir. 1976), Executive Order 13,526 also specifically permits agencies to issue Glomar

responses. See Exec. Order 13,526 § 3.6(a) (“An agency may refuse to confirm or deny the

existence or nonexistence of requested records whenever the fact of their existence or

nonexistence is itself classified under this order or its predecessors.”). In this case, the plaintiffs

complain that the CIA has failed to present evidence that it satisfied certain requirements for

proper administrative handling of classified information under Executive Order 13,526, namely,

establishing when the Glomar fact was classified and when it will be declassified. See Pls.’

Opp’n at 13 (No. 11-2072). 17

The resolution of this issue is complicated first by the fact that both sides find significant

support for their respective positions. The plaintiffs’ position is supported by the text of

Executive Order 13,526, which clearly states that “[a]t the time of original classification,” the

classifying authority must, inter alia, indicate when the information will become declassified. 18

See Exec. Order 13,526 §§ 1.5–1.6. This is in keeping with the Executive Order’s

pronouncement that “[n]o information may remain classified indefinitely.” Id. § 1.5(d). The

CIA, on the other hand, finds support for its position in the law of this Circuit and the Supreme

17
The plaintiffs do not appear to contest that the CIA satisfied the requirements of Executive Order 13,526 § 1.1(a),
which contains the four threshold requirements for properly classifying a piece of information. Rather, the plaintiffs
challenge the CIA’s compliance with Executive Order 13,526 §§ 1.5–1.6, which contain certain requirements for the
administrative handling of information once it is classified.
18
Executive Order 13,526 does not, however, require that a classifying authority indicate when information is
originally classified. See, e.g., Judicial Watch, Inc. v. U.S. Dep’t of Def., 857 F. Supp. 2d 44, 58 (D.D.C. 2012)
(observing that “[Executive Order] 13526 does not require that the date of classification be indicated on the records
themselves”).

33
Court, which have held that “FOIA does not require an agency to ‘create or retain’ documents.”

Bureau of Nat’l Affairs, Inc. v. U.S. Dep’t of Justice, 742 F.2d 1484, 1493 (D.C. Cir. 1984);

accord Kissinger, 445 U.S. at 152. There is more than a little tension between these two

principles: Compliance with Executive Order 13,526, in the context of a Glomar response,

would appear to require agencies to create a record in response to a FOIA request (i.e., a piece of

paper that contains all classification markings required by the Executive Order), see Defs.’ Reply

at 8–9 (No. 11-2072); Pls.’ Surreply at 4 (No. 11-2072), and yet agencies are generally not

required to create records in response to a FOIA request.

This issue is complicated further by the fact that, although Executive Order 13,526

ostensibly applies to all “national security information”—tangible or intangible—the Order’s

requirements regarding a date of declassification clearly presume that such information has

already been reduced into a tangible medium, such as a document or other type of record. For

example, section 1.5 of the Order, which requires a classification authority to “establish a

specific date or event for declassification,” speaks of “information” being “marked” and at one

point interchangeably uses the words “information” and “document.” See Exec. Order 13,526

§ 1.5. Furthermore, section 1.6 of the Order, which requires certain classification markings,

states that all such markings “shall be indicated in a manner that is immediately apparent” and

also uses the words “document” and “record” as synonyms for “information.” See id. § 1.6. The

Order’s implicit assumption that all classified information is in a tangible form is fundamentally

incompatible with the nature of a Glomar response, which is “an intangible piece of

information.” Pls.’ Opp’n at 12 (No. 11-2072); see also Phillipi, 546 F.2d at 1013 (“When the

[CIA]’s position is that it can neither confirm nor deny the existence of the requested records,

there are no relevant documents for the court to examine other than the affidavits which explain

the [CIA]’s refusal.”). This dilemma highlights the uniqueness of Glomar responses: Not only
34
are Glomar responses intangible forms of classified information, but the CIA is correct that they

are also “fundamentally different in nature” than other classified information because they

“arise[] solely in the context of a response to a request for records.” Defs.’ Reply at 8 (No. 11-

2072). For these reasons, and also because it would be contrary to longstanding FOIA law to

require agencies to create records in response to FOIA requests, the Court holds that, in order to

issue a Glomar response, an agency need not create or maintain any tangible records.

Even so, the question remains whether an agency must establish a timeline for the

declassification of a Glomar fact in order to issue a Glomar response under FOIA Exemption 1,

assuming that such a timeline could be established without the need to create tangible records.

On the one hand, the plaintiffs are correct that a fundamental precept of classifying sensitive

information is that “[n]o information may remain classified indefinitely.” Exec. Order 13,526

§ 1.5(d). The Court, however, concludes that the requirement in Executive Order 13,526 to

establish a declassification timeline is not an absolute prerequisite to classifying information.

Rather, a timeline for declassification and other classification markings are only required once

information has already been properly classified. Compare Exec. Order 13,526 § 1.1(a) (setting

forth “conditions” under which “[i]nformation may be originally classified”), with id. §§ 1.5–1.6

(requiring certain actions to be taken “[a]t the time of original classification”). Thus, although an

agency may not be in full compliance with Executive Order 13,526 by failing to establish a

declassification timeline for Glomar facts, that failure does not prevent the agency from relying

on FOIA Exemption 1 to issue a Glomar response to a FOIA request.

This reading of Executive Order 13,526 is supported by cases from within this Circuit, in

addition to the language and structure of the Order itself. For example, in Wolf, the D.C. Circuit

held that, under Executive Order 12,958—the predecessor of Executive Order 13,526, which

contained identical requirements for a declassification timeline—“if the [agency] [a]ffidavit
35
plausibly explains the danger [of the expected damage to national security or foreign relations

from confirming or denying the existence of records], the existence of records vel non is properly

classified under Executive Order 12958 and justifies the Agency’s invocation of Exemption 1.”

Wolf, 473 F.3d at 375–76. Other decisions from within this Circuit have similarly indicated that

an agency need only satisfy the requirements of Executive Order § 1.1(a) to classify information

properly for purposes of FOIA Exemption 1, which the CIA has done with respect to its Glomar

response in the instant action. See Mobley v. Dep’t of Justice, 870 F. Supp. 2d 61, 66 (D.D.C.

2012); Schoenman v. FBI, 841 F. Supp. 2d 69, 81 (D.D.C. 2012); Am. Civil Liberties Union v.

Dep’t of Justice (“ACLU/DOJ I”), 808 F. Supp. 2d 280, 298 (D.D.C. 2011) (“Information can be

properly classified under Executive Order 13526 if [the] four requirements [of § 1.1(a)] are

met . . . .”); see also First Meeks Decl. ¶¶ 29–30 (averring compliance with requirements of

Executive Order 13,529 § 1.1(a)). Therefore, the Court concludes that the CIA is not required to

establish a declassification timeline in order to “properly classif[y]” a Glomar fact under

Executive Order 13,526.

c) The CIA’s Invocation of FOIA Exemption 1 to Issue a Glomar
Response Was Substantively Justified.

Having resolved the plaintiffs’ procedural challenge to the CIA’s Glomar response under

FOIA Exemption 1, the Court will now discuss the plaintiffs’ substantive challenge. In this

regard, the plaintiffs take issue with the CIA’s justification for invoking FOIA Exemption 1 to

issue its Glomar response. The CIA explains its justification as follows: First, “if the CIA

admits that it possesses covert intelligence information about a particular individual, the CIA

essentially admits that one or more of his activities have been detected by the CIA.” First Meeks

Decl. ¶ 37. “Such an acknowledgement alerts this individual that he must take countermeasures

to make his future activities undetectable by the CIA.” Id. On the other hand, “if the CIA denies

36
that it possesses intelligence information about a particular individual who indeed should be of

intelligence interest to the CIA, the CIA essentially admits to the individual that his efforts to

conceal his activities have been successful” and thus “this individual would know that he could

continue to act with impunity.” Id. ¶ 38. Due to this conundrum, “the mere confirmation or

denial of the existence of any other responsive records would reveal a classified fact: namely,

whether the CIA has maintained covert relationships with Plaintiffs or whether the CIA has

gathered intelligence on Plaintiffs.” Id. ¶ 27.

The plaintiffs argue, however, that this justification does not apply to Mobley because he

is not and “should not be of intelligence interest to the U.S. Intelligence Community.” Pls.’

Opp’n at 15 (No. 11-2072). The plaintiffs contend, in a highly conclusory fashion, that Mobley

“clearly is not undertaking any ‘activities,’ and so does not fit into this [first] category” and “[a]s

for the second category, the ‘efforts to conceal his activities’ that have been successful so far

consist entirely of not doing anything wrong.” Id. at 14 (emphasis omitted). The plaintiffs’ only

support for this argument is an internal e-mail chain from three individuals at a private

intelligence think tank called Stratfor, which was obtained from an unauthorized release of

documents by the organization WikiLeaks. See id. at 16; see also Pls.’ Mot. for Status Conf.

Regarding Use of Potentially Classified Information at 1, ECF No. 26 (No. 11-2072). 19 That e-

mail chain states, inter alia, that “[Mobley] was not part of [al-Qaeda in the Arabian Peninsula].

Security simply picked him up on suspicions and his shady affiliations.” Pls.’ Opp’n Ex. D at 1,

ECF No. 40-4 (No. 11-2072). Based on this e-mail, the plaintiffs argue that “the Court should

19
The Government has assured the Court that “it is unnecessary to treat as presumptively classified here an
unofficial, non-government document obtained from the public domain,” and therefore “the Government has no
objection to the filing of this email on the public record.” Defs.’ Objection to June 22, 2012 Order at 1–2, ECF No.
32 (No. 11-2072).

37
find that there is a genuine issue of material fact regarding whether or not Mobley should be of

intelligence interest to CIA.” Pls.’ Opp’n at 16 (No. 11-2072).

This argument need not detain the Court long. The CIA is correct to argue that

“plaintiffs’ argument misunderstands both the Glomar response and the scope of the information

that CIA’s Glomar response seeks to protect.” Defs.’ Reply at 11 (No. 11-2072). As the CIA

explains, even if the plaintiffs were correct (i.e., that Mobley has done nothing wrong and should

not be of intelligence interest to the CIA), “CIA could not acknowledge as much in this case and

then issue Glomar responses in those cases in which the agency did have responsive records or

the person was an intelligence source or target of the United States,” because “such responses

over time would effectively reveal who is and is not an intelligence source or target.” Id. Hence,

the very nature of the Glomar posture requires that agencies categorically refuse to either

confirm or deny the existence of responsive records that would reflect a classified or

unacknowledged affiliation with a person because confirmation or denial that such records exist

has the potential to harm national security, in and of itself. The plaintiffs ask the Court to require

the CIA to “attest that Mobley was or should have been a subject of intelligence interest,” in

order for the CIA to be entitled to summary judgment, Pls.’ Surreply at 5 (No. 11-2072), but this

once again misunderstands the purpose of a Glomar response. As the CIA logically explains, the

CIA may simply not know that a given person should be of intelligence interest at any given

time, which is precisely why Glomar responses must be categorical. See Defs.’ Reply at 12–13

(No. 11-2072) (“Among the numerous people in the world who CIA does not target for

collection at any particular time, CIA cannot possibly know for certain who might seek to harm

the United States (and who would thus make malicious use of CIA’s confirmation that it has no

records about them) and who is completely benign . . . .”).

38
To the extent that the plaintiffs ask this Court to second-guess the CIA’s statements by

finding on its own “that Plaintiffs should not have been of intelligence interest,” Pls.’ Opp’n at

16 (No. 11-2072), their request is inappropriate. As the D.C. Circuit has held, “in the FOIA

context, we have consistently deferred to executive affidavits predicting harm to the national

security, and have found it unwise to undertake searching judicial review.” Ctr. for Nat’l Sec.

Studies v. U.S. Dep’t of Justice, 331 F.3d 918, 927 (D.C. Cir. 2003). “The CIA’s arguments

need only be both ‘plausible’ and ‘logical’ to justify the invocation of a FOIA exemption in the

national security context.” ACLU/DOD, 628 F.3d at 624 (quoting Wolf, 473 F.3d at 374–75).

The plaintiffs’ purported evidence is insufficient to create a genuine issue of material fact on this

issue because it is not the Court’s proper place to decide who should or should not be the subject

of intelligence gathering activities, and even if the Court were required to decide such questions,

the unsworn opinions of non-governmental actors (e.g., private-sector intelligence analysts) carry

little or no weight in that calculus. The Court concludes that the CIA’s explanation for its

Glomar response in the instant case, recited above and in sworn affidavits, is both plausible and

logical, and therefore the CIA was justified in issuing a Glomar response to the plaintiffs under

FOIA Exemption 1. 20

2. DIA

Mobley challenges the DIA’s Glomar response with arguments identical to those raised

against the CIA’s Glomar response. First, Mobley argues that, as a procedural matter, “DIA has

not demonstrated that it followed the appropriate steps when determining that the fact of the

existence or nonexistence of responsive records . . . is classified.” Pl.’s Opp’n at 3 (No. 11-

2073). Second, Mobley contends that the DIA’s substantive justification for its Glomar response
20
Although the plaintiffs also raise objections to the CIA’s invocation of FOIA Exemption 3 to justify its Glomar
response, see Pls.’ Opp’n at 16–27 (No. 11-2072), the Court need not resolve those objections because the Court
concludes that the CIA’s Glomar response was justified independently under FOIA Exemption 1.

39
under FOIA Exemption 1 is illogical because “Mobley should not be of intelligence interest to

the U.S. Intelligence Community.” Id. at 5–8. These arguments fail as to the DIA for the same

reasons these arguments failed as to the CIA. See supra Part III.B.1(b)–(c). The DIA has

logically explained in a sworn affidavit that the “Glomar fact” at issue—whether responsive

records exist revealing a classified or otherwise unacknowledged relationship with Mobley—is

properly classified under Executive Order 13,526. Therefore, the DIA’s Glomar response was

appropriate. 21

C. The Propriety of the Defendants’ Withholding Determinations

The next area in which the plaintiffs challenge the defendant agencies’ responses is

regarding the agencies’ determinations to withhold certain responsive records or portions thereof.

All four of the defendants decided to withhold certain responsive records (or portions thereof),

and so the Court will discuss each agency’s withholding decisions in turn.

1. CIA

The Court will begin by discussing the withholding decisions of the CIA. As discussed

above, the DIA referred several responsive records to the CIA, and the CIA released all but six

of those records to Mobley. The six records were withheld in full under FOIA Exemption 3,

which exempts from disclosure all records “specifically exempted from disclosure by statute” as

long as that statute either “requires that the matters be withheld from the public in such a manner

as to leave no discretion on the issue” or “establishes particular criteria for withholding or refers

to particular types of matters to be withheld.” 5 U.S.C. § 552(b)(3); see also Third Meeks Decl.

¶ 7 (“The Agency determined that the remaining six records must be denied in full on the basis

of FOIA exemption (b)(3).”).

21
Once again, although Mobley also raises objections to the DIA’s invocation of FOIA Exemption 3 to justify its
Glomar response, see Pl.’s Opp’n at 8–12 (No. 11-2073), the Court need not resolve those objections because the
Court concludes that the DIA’s Glomar response was justified independently under FOIA Exemption 1

40
a) FOIA Exemption 3: National Security Act

In this regard, the CIA has cited two statutes that it says independently justify its

invocation of FOIA Exemption 3: the National Security Act of 1947 and the Central Intelligence

Agency Act of 1949 (the “CIA Act”). Section 102A(i)(1) of the National Security Act provides

that “[t]he Director of National Intelligence shall protect intelligence sources and methods from

unauthorized disclosure.” 50 U.S.C. § 403-1(i)(1). Additionally, Section 6 of the CIA Act

provides that “the [CIA] shall be exempted from . . . the provisions of any other law which

requires the publication or disclosure of the organization, functions, names, official titles,

salaries, or numbers of personnel employed by the [CIA].” 50 U.S.C. § 403g. The CIA states

that the six records at issue “reveal certain sensitive but unclassified intelligence sources and

methods,” and therefore they are protected by the National Security Act because “Executive

Order 12,333 charges the CIA with carrying out [the National Security Act’s] directive” and are

also exempt under the CIA Act because “Open Source Intelligence (‘OSINT’) is a core function

of the CIA.” Third Meeks Decl. ¶¶ 9, 12–13.

Mobley objects to the CIA’s reliance on both statutes as grounds to invoke FOIA

Exemption 3, and the Court will begin by discussing the National Security Act. With respect to

that statute, Mobley objects that the CIA is not authorized to invoke the National Security Act

for purposes of the FOIA because that statute only gives authority to the Director of National

Intelligence (“DNI”) to protect intelligence sources and methods, not the CIA. See Pl.’s Opp’n

at 12–13 (No. 11-2073); see also id. at 8–12. 22 Following this logic, Mobley focuses on an

amendment to the National Security Act that was passed as a part of the Intelligence Reform and

22
The Court will cite to Mobley’s arguments as to the DIA’s invocation of the National Security Act because
Mobley incorporates that discussion by reference in opposing the CIA’s invocation of the National Security Act.
See Pl.’s Opp’n at 12 (No. 11-2073) (“For the same reason that DIA is not authorized to independently invoke the
National Security Act without delegation of authority from ODNI, CIA may not do so either.”).

41
Terrorism Prevention Act (“IRTPA”) in 2004. The IRTPA created the DNI, and it vested that

position with the authority, inter alia, to protect intelligence sources and methods. See generally

Pub. L. No. 108-458 §§ 1001–1011, 118 Stat. 3638, 3643–62 (2004). Prior to this amendment,

the National Security Act provided that the Director of Central Intelligence (“DCI”) had the

responsibility to “protect intelligence sources and methods from unauthorized disclosure.” See

50 U.S.C. § 403-3(c)(6) (2000). Mobley argues that the IRTPA amendments transferred the

authority to protect intelligence sources and methods from the DCI to the DNI, and therefore

“any other agency seeking to invoke [the National Security Act] to withhold records under

Exemption (b)(3) must be expressly authorized to do so by that office.” Pl.’s Opp’n at 9 (No.

11-2073).

In making this argument, Mobley relies heavily on three cases, two of which are from

this Circuit. First, Mobley cites Talbot v. CIA, 578 F. Supp. 2d 24 (D.D.C. 2008), in which the

State Department presented an express authorization from the DNI to support its argument that it

could invoke the National Security Act. The court stated in a footnote that “[t]he [National

Security Act] requires the Director of National Intelligence (‘DNI’)—not the State Department—

to protect intelligence sources and methods. The DNI did exactly that when he requested the

State Department take all necessary and appropriate measures to ensure the protection of

intelligence sources and methods.” Id. at 29 n.3. Next, Mobley cites National Institute for

Military Justice v. Department of Defense (“NIMJ”), 404 F. Supp. 2d 325 (D.D.C. 2005)

(Walton, J.), aff’d, 512 F.3d 677 (D.C. Cir. 2008), which dealt with the Department of Defense’s

reliance on a different statute—10 U.S.C. § 130c—to invoke FOIA Exemption 3. In NIMJ, the

statute at issue specifically provided that only three cabinet-level officers had the ability to

designate documents to be withheld: the Secretary of Defense, the Secretary of Homeland

Security, and the Secretary of Energy. See NIMJ, 404 F. Supp. 2d at 337. Since the Department
42
of Defense’s affiant was not one of those three individuals, the court held that the defendant did

not have the authority to invoke the statute. See id. at 337–38. Mobley argues that the Court

should “follow the lead of Judge Walton and hold that absent a proper delegation of authority

from ODNI, [other agencies] may not invoke the National Security Act as a withholding statute.”

Pl.’s Opp’n at 10 (No. 11-2073). Finally, Mobley cites Amnesty International USA v. CIA, 728

F. Supp 2d 479, 501 (S.D.N.Y. 2010), which stated that “[t]he amendments made by the IRTPA

transferred the authority for protecting intelligence from the Director of the CIA to the DNI.”

Mobley reasons that, since “[a]uthority can only be transferred if the original holder does not

retain it,” the CIA was essentially stripped of its authority to invoke the National Security Act on

its own by virtue of the IRTPA. See Pl.’s Opp’n at 13 (No. 11-2073).

The CIA responds that “the DNI need not personally authorize every agency’s

withholding of intelligence sources and methods information pursuant to the National Security

Act.” Defs.’ Reply at 9 (No. 11-2073). Rather, the CIA contends that “[t]he DNI’s duty to

protect intelligence sources and methods . . . requires implementation of general measures

designed to ensure that all members of the intelligence community prevent unauthorized

disclosure of such information.” Id. The CIA argues that “under both the current statute and its

predecessor, this Circuit and other courts have upheld other intelligence community agencies’

invocation of the National Security Act to protect intelligence sources and methods.” Id. at 9–10

(collecting cases). In particular, the CIA draws the Court’s attention to the D.C. Circuit’s

decision in Larson v. Department of State, 565 F.3d 857, 868–69 (D.C. Cir. 2009), which upheld

the National Security Agency’s authority to withhold certain records under FOIA Exemption 3

under three statutes, including the provision of the National Security Act relied on by the CIA in

the instant case.

43
The CIA has the better of the argument on this point. In addition to Larson, another D.C.

Circuit case cited by the CIA, which Mobley has chosen not to address, upheld the CIA’s

reliance upon 50 U.S.C. § 403-1(i)(1) to invoke FOIA Exemption 3 where the withheld

information qualified as “intelligence sources and methods.” See ACLU/DOD, 628 F.3d at 618–

26. 23 Although the Circuit did not specifically address the argument made by Mobley regarding

the authority of non-DNI agencies to protect intelligence sources and methods, the Court is

bound to follow the Circuit’s interpretation of the CIA’s authority to rely upon the National

Security Act in invoking FOIA Exemption 3. Mobley’s reliance on dicta or the interpretation of

different statutes in district court cases is simply insufficient to displace the Circuit’s holding in

ACLU/DOD, which was handed down only two years ago. Therefore, the Court holds that the

CIA has the authority to rely upon the National Security Act, 50 U.S.C. § 403-1(i)(1), to invoke

FOIA Exemption 3 to withhold responsive records. See ACLU/DOD, 628 F.3d at 626 (holding

that “the government properly invoked FOIA exemption[] . . . 3” under the National Security

Act, 50 U.S.C. § 403-1(i)(1)); accord Larson, 565 F.3d at 865; ACLU/DOJ I, 808 F. Supp. 2d at

289 n.2 (“Although § 403-1(i)(1) of the [National Security Act] provides that the ‘Director of

National Intelligence shall protect intelligence sources and methods from unauthorized

disclosure,’ the CIA may rely upon this statutory provision to withhold records under FOIA.”

(citing Larson, 565 F.3d at 865)). 24

b) Privacy Act Exemption

Mobley also objects that “CIA has made no claim that these OSC records are not located

in a system of records or are exempt under the Privacy Act.” Pl.’s Opp’n at 18 (No. 11-2073).

23
The plaintiffs have not contested the CIA’s assertion that the withheld records contain “intelligence sources and
methods” as that term is used in the National Security Act.
24
Since the Court holds that the CIA had the authority to rely upon the National Security Act to invoke FOIA
Exemption 3 and withhold responsive records, the Court need not address whether the CIA properly relied upon the
CIA Act, in the alternative, to withhold those same responsive records.

44
The CIA explains that, because the six OSC records were located by the DIA, “the relevant

question for purposes of the Privacy Act is whether they were located in a DIA system of

records, and if so, whether that system of records has been exempted from the access provisions

of the Privacy Act.” Defs.’ Reply at 14 (No. 11-2073). The defendants cite the Court to the

DIA’s second sworn declaration, which explains that the 41 OSC records (including the six

withheld records) “were located in DIA’s Web Intelligence Search Engine (‘WISE’) database,”

which is “DIA’s repository for electronic message traffic, holding in excess of 60 million such

messages addressed to or originating from DIA.” Second Decl. of Alesia Y. Williams (“Second

Williams Decl.”) ¶ 4, ECF No. 50-1 (Oct. 12, 2012) (No. 11-2073). Ms. Williams, the DIA’s

FOIA chief, explains that the WISE database is not a Privacy Act “system of records” because

“DIA does not organize records in WISE by individuals who may be mentioned in those records,

nor does DIA retrieve records about individuals from that database by use of an individual’s

name or personal identifier as a matter of practice.” Id.

Mobley, however, submits two objections to the DIA’s explanation. First, he argues that,

since the records originated in the OSC, the Court must determine whether the OSC is a “Privacy

Act system of records.” Pl.’s Surreply at 9 (No. 11-2073). Second, he contends that, even

assuming that the WISE database is the proper database to consider for Privacy Act purposes, the

WISE database should be considered a system of records because “the evidence suggests that

these records are compiled for investigatory purposes,” which, according to Mobley, strongly

suggests that they are being kept as a system of records. Id. at 10–11. 25 Both of these arguments

are unpersuasive. First, even if Mobley is correct that the relevant question is whether these

25
Mobley also suggests to the Court that the DIA’s affiant is misleading the Court by averring that it is not the
DIA’s usual practice to retrieve information from the WISE system by an individual’s name. See Pl.’s Surreply at
10 n.8 (No. 11-2073). Mobley fails, however, to present one iota of evidence that would suggest that the DIA has
given the Court this information in bad faith.

45
records were maintained in a CIA Privacy Act system of records, any portion of such a system of

records that contained the withheld OSC records would be exempt from the Privacy Act. This is

because the Privacy Act permits the head of the CIA to exempt, by rule, any system of records

“maintained by the Central Intelligence Agency.” 5 U.S.C. § 552a(j)(1). The CIA has, in turn,

published a rule that exempts from the Privacy Act “those portions and only those portions of all

systems of records maintained by the CIA that . . . [c]onsist of, pertain to, or would otherwise

reveal intelligence sources and methods.” 32 C.F.R. § 1901.62(d). Since the Court has already

concluded that the six withheld OSC records would reveal intelligence sources or methods, see

supra Part III.C.1(a), those records are also necessarily exempt from the disclosure provisions of

the Privacy Act.

Furthermore, Mobley has presented no evidence that would create a genuine issue of

material fact regarding whether the WISE database is a “system of records.” The DIA’s

explanation regarding the WISE database is logical and is entitled to presumption of good faith.

See, e.g., SafeCard, 926 F.2d at 1200 (holding that “[a]gency affidavits are accorded a

presumption of good faith”). All that Mobley offers to rebut the DIA’s explanation is the

unsupported assertion that “[t]he evidence suggests that these records are compiled for

investigatory purposes.” Pl.’s Surreply at 10 (No. 11-2073). Mobley’s only “evidence” in

support of this assertion consists of the conclusory statement that the WISE system “includes

open source media reports about intelligence targets,” and therefore “[i]t defies credulity that

[such a] system . . . would not be searched for information about said targets.” Id. at 10 n.8. Ms.

Williams’s declaration, however, establishes that the WISE database contains “electronic

message traffic,” including electronic messages that circulate open-source intelligence

publications to “elements of the U.S. Intelligence Community on a daily basis.” Second

Williams Decl. ¶ 4. Since the WISE database is essentially a database of e-mail messages, some
46
of which are messages containing “open source media articles,” id., it is logical that such

messages would not be organized by the name or personal identifying information of individuals

discussed in such articles, and Mobley has offered no evidence to contradict this explanation. 26

See, e.g., Krieger v. U.S. Dep’t of Justice, 529 F. Supp. 2d 29, 42–43 (D.D.C. 2008) (holding that

e-mails were not part of “system of records” under Privacy Act where plaintiff “offer[ed] no

facts suggesting that [records] would have been indexed by name, or that an electronic folder

existed that grouped emails related to him by name or other identifier”). As a result, the CIA is

entitled to summary judgment on the issue of whether the six withheld OSC records are exempt

from disclosure under the Privacy Act.

2. State Department

Next, the Court will discuss the withholding determinations of the State Department. In

total, State withheld 117 documents in whole or in part under a variety of FOIA and Privacy Act

exemptions. State has indexed and explained its reasons for withholding this material in the

sworn declaration of Sheryl Walter, who is Director of the Office of Information Programs and

Services (“IPS”) at State. See First Walter Decl. ¶ 1. The plaintiffs raise five categories of

objections to State’s withholding determinations, which the Court will discuss in turn.

a) Privacy Act Systems of Records

The plaintiffs first argue that State “improperly applied the Privacy Act.” Pls.’ Opp’n at

29 (No. 11-2072). In particular, the plaintiffs contend that State’s determination that “even

though some records were clearly records about Plaintiffs, information within those records was

not subject to the Privacy Act” was wrong. Id. at 30. In support of its determination, State cites

26
In the interest of transparency, the DIA publicly lists all of its Privacy Act systems of records on the Department
of Defense’s website, and the WISE database is not listed. See Def. Privacy & Civil Liberties Office, System of
Records Notices, Def. Intelligence Agency, http://dpclo.defense.gov/privacy/sorns/component/dia/index.html (last
visited Feb. 6, 2013).

47
the D.C. Circuit’s holding that, when materials pertain to both a Privacy Act requester and other

individuals from whom the agency has received no written consent permitting disclosure, the

Privacy Act’s prohibition on disclosing information without written consent “must take

precedence,” and the portions of the record pertaining to those third parties must be withheld.

See Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1121 n.9 (D.C. Cir. 2007); see also Defs.’

Reply at 24 (No. 11-2072). The plaintiffs do not discuss the Circuit’s holding in Sussman, but

rather point to a district court case decided several years before Sussman, where the court

declined to hold that “information contained in one individual’s record is exempt from the

disclosure requirements of the Privacy Act simply because the same information is also

contained in another individual’s records.” Henke v. Dep’t of Commerce, No. 94-0189, 1996

WL 692020, at *4 (D.D.C. Aug. 19, 1994), aff’d, 83 F.3d 1445 (D.C. Cir. 1996). Whatever

weight the Henke decision might otherwise have, its reasoning did not survive the Circuit’s clear

holding in Sussman. Therefore, the plaintiffs are not entitled to the information contained in

certain State documents that is about third-party individuals who have not given their written

consent to have their information disclosed.

b) FOIA Exemption 1

Next, the plaintiffs take issue with State’s invocation of FOIA Exemption 1 with respect

to twenty-two documents, in whole or in part, which the plaintiffs say “is supported only by

conclusory allegations of unspecified harm or expectations of confidence.” Pls.’ Opp’n at 38

(No. 11-2072). Specifically, the plaintiffs contend that a number of documents were not

properly classified under Executive Order 13,526, based on the statements made in Ms. Walter’s

declarations. See id. at 39.

The plaintiffs’ first argument in this regard is that “the record does not support a finding

that [certain records withheld under FOIA Exemption 1] are properly classified according to

48
E.O. 13526 § 1.7(d).” Id. Section 1.7(d) of the Executive Order provides a procedure for

classifying documents after they have been requested through the FOIA or the Privacy Act. In

that situation, a record may only be classified “if such classification meets the requirements of

this order and is accomplished on a document-by-document basis with the personal participation

or under the direction of the agency head, the deputy agency head, or the senior agency official

designated under section 5.4 of this order.” Exec. Order 13,526 § 1.7(d). Based on the

requirements of section 1.7(d), the plaintiffs contend that Ms. Walter does not have the authority

to classify documents under that section “on her own.” Pls.’ Opp’n at 39 (No. 11-2072). State

responds by citing to a State Department regulation that officially authorizes the Deputy

Assistant Secretary for Records and Publishing Services “to be the official to classify

information on a document-by-document basis.” Bureau of Administration; Classification

Authority Acting Under the Direction of the Senior Agency Official, 64 Fed. Reg. 7227 (Feb. 12,

1999). The plaintiffs, however, contend that section 1.7(d) requires the agency head, deputy

agency head, or senior agency official to “make [a document-by-document classification]

determination or direct another to do so each time such classification is desired and for each

document,” because “State cannot be allowed to reduce [section 1.7(d)] to mootness by simply

publishing a single Notice in the Federal Register and then forgetting about it.” Pls.’ Opp’n at

40 (No. 11-2072).

The Court disagrees with the plaintiffs’ cramped reading of Executive Order 13,526.

Nothing in the text of the Order evinces any intent to require the senior agency official to direct

others to make document-by-document classification determinations “each time such

classification is desired and for each document.” Id. (emphasis omitted). The Order simply

states that the document-by-document classification of records subject to section 1.7(d) must be

done “under the direction of the agency head, the deputy agency head, or the senior agency
49
official.” Exec. Order 13,526 § 1.7(d). Absent any affirmative evidence that the Executive

Order intended to prohibit delegation of the authority to perform this document-by-document

classification, the delegation is presumptively permissible. See NLRB v. Duval Jewelry Co. of

Miami, 357 U.S. 1, 7 (1958) (“[T]he law does not preclude practicable administrative procedure

in obtaining the aid of assistants in the department.” (internal quotation marks omitted)); U.S.

Telecom Ass’n v. FCC, 359 F.3d 554, 565 (D.C. Cir. 2004) (“When a statute delegates authority

to a federal officer or agency, a subdelegation to a subordinate federal officer or agency is

presumptively permissible absent affirmative evidence of a contrary congressional intent.”); see

also Darui v. U.S. Dep’t of State, 798 F. Supp. 2d 32, 42 (D.D.C 2011) (upholding authority of

subordinate officer in State Department to classify documents under E.O. 13,526 § 1.7(d)).

Therefore, the Court concludes that State complied with Executive Order 13,526 § 1.7(d) when it

established that Margaret Grafeld, the Deputy Assistant Secretary for Global Information

Services (formerly Records and Publishing Services), “personally considered” the withheld

portions of the three documents contested by the plaintiffs and determined that their

classification needed to be upgraded after Mobley had already filed his FOIA/PA request. See

Supplemental Decl. of Sheryl L. Walter (“Second Walter Decl.”) ¶¶ 23–25, ECF No. 49-5 (No.

11-2072). 27

Second, the plaintiffs argue that State has not convincingly demonstrated that a number

of documents were properly classified under Executive Order 13,526 § 1.4(b) as “foreign

government information.” See Pls.’ Opp’n at 41–43 (No. 11-2072). Foreign government

information includes “information provided to the United States Government by a foreign

27
The Court notes for the purpose of clarity that the plaintiffs mischaracterized the State Department’s position in
their brief by stating that State was “attempt[ing] to claim that the Director of the [IPS] can satisfy [the]
requirement[s] [of E.O. 13,526 § 1.7(d)] on her own.” Pls.’ Opp’n at 39. State never made such a contention, but
instead argued that Ms. Grafeld was able to satisfy the requirements of E.O. 13,526 § 1.7(d) on her own.

50
government or governments, an international organization of governments, or any element

thereof, with the expectation that the information, the source of the information, or both, are to

be held in confidence.” Exec. Order. 13,526 § 6.2(s). The plaintiffs complain that State

withheld portions of three documents pursuant to section 1.4(b) without sufficiently explaining

why the material was conveyed with an expectation of confidence. See Pls.’ Opp’n at 42–43

(No. 11-2072). The plaintiffs also contend that State has not “provide[d] any factual reasons that

the Court should find the existence of an implied grant [of confidentiality]” and that “State’s

entire argument appears to be based on the questionable philosophy that all exchanges of

information between foreign government officials and the United States come with implied

grants of confidentiality.” Id. at 42.

In the declarations of Ms. Walter, she explains that the information withheld as foreign

government information “reveals observations and concerns expressed in confidence” and other

“sensitive information” relayed to the U.S. Government by various Yemeni officials. See

Second Walter Decl. ¶¶ 23–25. Ms. Walter further explains that this information was all

provided “with an expectation of confidentiality” because, absent such an expectation, “foreign

government officials (such as the Yemenis here) would be unwilling to share this kind of

confidential information with Department officials if this kind of information were required to be

released publicly under FOIA.” Id. ¶¶ 23–24; see also id. ¶ 25 (explaining that “[t]his type of

information would not have been provided absent an expectation of confidentiality, and the

Department will be unable to obtain such confidences from foreign officials in the future if such

officials fear that this kind of information may be compelled to be released publicly”). The State

Department’s explanation of why this information was conveyed in confidence is both logical

and plausible, considering the nature of the information, and courts within this Circuit have

consistently upheld the State Department’s invocation of FOIA Exemption 1 with respect to
51
similar information. See, e.g., Am. Civil Liberties Union v. Dep’t of State, 878 F. Supp. 2d 215,

222 (D.D.C. 2012) (upholding State’s withholding information “concerning, among other things,

discussions, assessments, or recommendations relating to bilateral affairs with, or the policies,

political situation, or security situation” of various nations); Abuhouran v. U.S. State Dep’t, 843

F. Supp. 2d 73, 79 (D.D.C. 2012); Darui, 798 F. Supp. 2d at 40–41 (upholding State’s

withholding of a “letter from the Ambassador of Saudi Arabia to the United States”); Gov’t

Accountability Project v. U.S. Dep’t of State, 699 F. Supp. 2d 97, 102 (D.D.C. 2010).

Upholding the State’s withholding of such information in the instant case does not

necessarily endorse the sweeping principle that “all exchanges of information between foreign

government officials and the United States come with implied grants of confidentiality.” Pls.’

Opp’n at 42 (emphasis omitted). Rather, Ms. Walter’s sworn declaration sufficiently explains

why confidentiality is paramount when it comes to the particular information contained in the

documents at issue, i.e., the “observations and concerns” expressed by foreign officials to the

United States. See Second Walter Decl. ¶¶ 23–25. Ms. Walter’s declaration supports the

principle that, in the often fragile arena of foreign relations, an implied understanding of

confidentiality is necessary to ensure that nations can communicate their impressions, concerns,

negotiating positions, or other sensitive matters without fear that those matters will then be

publicly disclosed. Thus, the Court concludes that State properly classified the three documents

at issue under Executive Order 13,526 § 1.4(b).

Finally, the plaintiffs argue that information withheld from two documents was

improperly classified pursuant to Executive Order 13,526 § 1.4(g), which allows for the

classification of information related to “vulnerabilities or capabilities of systems, installations,

infrastructures, projects, plans, or protection services relating to national security.” See Pls.’

Opp’n at 44 (No. 11-2072); see also Exec. Order 13,526 § 1.4(g). The Court need not decide
52
this question to grant summary judgment to State, however, because the information at issue is

classified under both sections 1.4(g) and 1.4(d) of Executive Order 13,526. See Second Walter

Decl. ¶¶ 132, 149. Thus, even if the information were not properly classified under section

1.4(g) as the plaintiffs contend, the plaintiffs do not dispute that the same information is properly

classified under section 1.4(d).

c) Privacy Act Exemption (d)(5)

The plaintiffs next challenge State’s decision to withhold certain information under

Privacy Act Exemption (d)(5), which forbids requesting parties from accessing “any information

compiled in reasonable anticipation of a civil action or proceeding.” 5 U.S.C. § 552a(d)(5); see

also Pls.’ Opp’n at 32–38 (No. 11-2072). The plaintiffs “concede that the challenged

information was compiled in anticipation of a civil action or proceeding,” but they contend

instead that “such anticipation was not reasonable.” Pls.’ Opp’n at 32 (No. 11-2072) (emphasis

omitted). Within this argument, the plaintiffs cite three specific aspects of State’s invocation of

Exemption (d)(5) that they believe are improper. First, the plaintiffs argue that State “falsely

claims that ‘Mobley had in fact already brought suit against the U.S. Government, alleging that

the Government had unlawfully arranged his detention,’” even though Mobley did not file any

suit against the Government before filing the instant actions. See id. at 33. Second, the plaintiffs

contend that certain information was improperly withheld from one document because the

information consisted of an attorney’s advice about potential testimony given in a case to which

the State Department was not a party, which the plaintiffs say is not covered by Exemption

(d)(5). Id. at 33–34. Third, the plaintiffs more generally contend that State’s evidence to support

a reasonable anticipation of a civil action or proceeding “falls far short of the ‘foreseeability’

standard that governs the objective component of ‘reasonable anticipation’ for the simple reason

53
that it would be impossible for Plaintiffs to bring an adversarial action against any federal

official, agency, or other entity for the reasons State allegedly fears.” Id. at 34.

Privacy Act Exemption (d)(5) “speaks of ‘information,’ a term that embraces facts as

easily as it does deliberative processes” and therefore “does not admit of any distinction

between” the two and “in no way incorporates civil discovery law.” Martin v. Office of Special

Counsel, 819 F.2d 1181, 1187 (D.C. Cir. 1987). The exemption “protects documents prepared in

anticipation of quasi-judicial administrative hearings” as well as “actions in the district courts.”

See id. at 1188. The exemption also extends to “investigatory documents” the creation of which

is “premised on the possibility that prohibited practices will be uncovered, thereby warranting

further action,” even if no proceedings are in fact initiated. Gov’t Accountability Project v.

Office of the Special Counsel, No. 87-235, 1998 WL 21394, at *4 (D.D.C. Feb. 22, 1998).

As to the plaintiffs’ first argument under Exemption (d)(5), State concedes that it was

incorrect to assert that Mobley had already initiated litigation against the Government prior to

filing the instant FOIA/PA actions. See Defs.’ Reply at 27 n.11 (No. 11-2072). Rather, “[t]he

statements should have said that at least some State Department employees believed that

litigation was then ongoing, based on various news reports then circulating.” Id. (citing Second

Walter Decl. ¶¶ 18–19). It appears that this dispute only applies to one document, but the Court

concludes that State has presented sufficient evidence to demonstrate that the information

withheld from this document is exempt from disclosure under Exemption (d)(5). Ms. Walter

explains that, at or around the time that these documents were created, one of Mobley’s attorneys

was repeatedly contacting various members of the State Department as well as consular officers.

See Second Walter Decl. ¶ 17. Additionally, “various media entities were reporting on potential

and/or ongoing litigation between Mr. Mobley and the [State] Department,” and so “State

Department employees perceived that litigation was ongoing and felt the need to coordinate with
54
both the Office of the Legal Adviser and with the Department of Justice.” Id. ¶¶ 18–19. This

evidence is sufficient to demonstrate that the information withheld from the document at issue,

No. O47, was “compiled in reasonable antic

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2661160. Public record. Not legal advice.