898 F.Supp.2d 233 (D.D.C. 2012), C. A. 11-443, National Security Counselors v. Central Intelligence Agency

Docket Nº:Civil Action 11-443, 11-444, 11-445(BAH).
Citation:898 F.Supp.2d 233
Opinion Judge:BERYL A. HOWELL, District Judge.
Attorney:Kelly Brian McClanahan, National Security Counselors, Arlington, VA, for Plaintiff. Ryan Bradley Parker, U.S. Department of Justice, Washington, DC, for Defendants.
Case Date:October 17, 2012
Court:United States District Courts, District of Columbia

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898 F.Supp.2d 233 (D.D.C. 2012)




Civil Action Nos. 11-443, 11-444, 11-445(BAH).

United States District Court, District of Columbia.

October 17, 2012

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Kelly Brian McClanahan, National Security Counselors, Arlington, VA, for Plaintiff.

Ryan Bradley Parker, U.S. Department of Justice, Washington, DC, for Defendants.


BERYL A. HOWELL, District Judge.

The plaintiff, National Security Counselors (" NSC" ), brings three related actions against six federal intelligence and defense agencies, claiming numerous violations of the Freedom of Information Act (" FOIA" ), 5 U.S.C. § 552 et seq., and the Administrative Procedure Act (" APA" ), 5 U.S.C. § 701 et seq., and seeking declaratory and injunctive relief under the FOIA, the APA, the Declaratory Judgment Act, 28 U.S.C. § 2201, the Mandamus Act, 28 U.S.C. § 1361, and the All Writs Act, 28 U.S.C. § 1651. The gravamen of the plaintiff's claims is that these intelligence and defense agencies— principally the Central Intelligence Agency (" CIA" )— have improperly handled the plaintiff's requests for a

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variety of information under the FOIA. Although this allegedly improper agency behavior relates to a number of specific FOIA requests made to the defendants, it has manifested more broadly in a series of what the plaintiff alleges to be policies, practices, or standard operating procedures (" SOPs" ) of the CIA that constitute ongoing violations of the FOIA or the APA.1 In essence, the plaintiff alleges a series of policies or practices by the CIA that have endeavored systematically to extinguish FOIA requests at their inception, before the agency's duty to search or make withholding decisions are triggered and before the agency must provide administrative remedies. In their totality, the allegations in these related actions paint a picture of the CIA's desire to minimize the substance of its internal, administrative consideration of FOIA requests by crafting mechanisms that limit FOIA requesters' access to such consideration, which in turn has tested the mettle, commitment, and resources of requesters like the plaintiff. The primary question presented by the CIA's motions to dismiss the policy-or-practice claims in all three actions is whether such mechanisms are permitted by the FOIA.


The plaintiff in these related actions is a not-for-profit organization located in Arlington, Virginia, which was chartered in July 2009 by an attorney named Kelly McClanahan.2 According to its website, NSC performs four primary functions: (1) " to lawfully acquire from the government material related to national security matters and distribute it to the public" ; (2) " to use this material in the creation of original publications discussing the respective subjects" ; (3) " to advocate for intelligent reform in the national security and information and privacy arenas" ; and (4) " to provide a low-cost alternative to certain deserving clients involved in security law or information and privacy law-related proceedings." See NAT'L SEC. COUNSELORS, http:// national security law. org/ (last visited Oct. 17, 2012). To achieve these functions, the plaintiff frequently requests information under the FOIA from government agencies in the defense and intelligence sectors.3

The instant actions involve challenges to both specific denials of records as well as overarching policies and practices of the CIA that are alleged to violate the FOIA. The CIA's motions to dismiss currently pending before the Court, however, deal almost exclusively with the overarching policies and practices alleged by the plaintiff. At issue are twelve separate alleged policies or practices of the CIA, which the

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plaintiff claims are contrary to the CIA's duties under the FOIA. Specifically, the plaintiff alleges that the CIA has policies or practices of:

1. Refusing to recognize assignments of rights in FOIA requests (" Assignment of Rights Policy" ). See Compl. ¶¶ 19-22, NSC I.

2. Refusing to process requests for " aggregate data," e.g., a database listing of FOIA requests by fee category (" Aggregate Data Policy" ). See FAC ¶¶ 12-16, NSC II.

3. Refusing to allow requesters the right of administrative appeal when their FOIA requests are deemed improper (" Administrative Appeals Policy" ). See FAC ¶ ¶ 27-31, NSC II.

4. Applying an overbroad definition of the " reasonably describes" requirement contained in 5 U.S.C. § 552(a)(3)(A) (" Reasonably Describe Policy" ). See FAC ¶¶ 57-61, NSC II.

5. Failing to follow the requirement in 32 C.F.R. § 1900.12 that, if a FOIA request is deemed improper, the agency must " work with, and offer suggestions to, the potential requester in order to define a request properly" (" Work With Policy" ). See FAC ¶¶ 72-77, NSC II.

6. Imposing the date of the CIA's response letter to a requester as the cut-off date on all FOIA request searches (" Cut-Off Date Policy" ). See FAC ¶¶ 112-115, NSC II.

7. Applying a blanket exemption to all information pertaining to the CIA's processing of FOIA and Privacy Act requests (" Blanket Processing Notes Exemption Policy" ). See FAC ¶¶ 33-37, NSC III.

8. Applying a blanket exemption to all FOIA and Privacy Act reference materials ( e.g., training handbooks, manuals, guidelines) (" Blanket Reference Material Exemption Policy" ). See FAC ¶¶ 79-81, NSC III.

9. Categorically issuing Glomar responses to requests for information pertaining to FOIA and Mandatory Declassification Review requests referred to the CIA by other agencies (" Glomar Response Policy" ). See FAC ¶¶ 94-98, NSC III.

10. Refusing to provide estimated dates of completion for FOIA requests (" Non-Provision of Completion Date Policy" ). See FAC ¶¶ 100-107, NSC III.

11. Refusing to identify records withheld in their entirety during the administrative stage of FOIA processing (" Withheld Document Non-Identification Policy" ). See FAC ¶¶ 118-122, NSC III.

12. Invoking FOIA exemptions on a document level without indicating which exemptions apply to particular redactions at the administrative stage of FOIA processing (" Document-Level Exemption Policy" ). See FAC ¶¶ 128-133, NSC III.

The Court will first discuss the factual allegations related to each of these purported policies or practices before discussing the legal issues presented by the CIA's partial motions to dismiss.

A. Assignment of Rights Policy

The plaintiff complains that the CIA refuses to recognize the assignment of rights related to FOIA requests— an assignment necessitated in this particular case by Mr. McClanahan's change in employment. Prior to chartering NSC, Mr. McClanahan served as the Director of FOIA Operations

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at another not-for-profit organization called the James Madison Project (" JMP" ).4 According to the plaintiff, it shares with JMP " virtually all the same purposes and interests," except that NSC represents clients and JMP does not. See Pl.'s 443 Opp'n at 25. Indeed, JMP's stated mission is to " promote government accountability and the reduction of secrecy, as well as to educate the public on issues relating to intelligence and national security through means of research, advocacy and the dissemination of information." See JAMES MADISON PROJECT, http:// www. james madison project. org (last visited Oct. 17, 2012). On April 10, 2008, JMP submitted a FOIA request to the CIA for eleven articles originally published in the CIA in-house journal Studies in Intelligence. Compl. ¶ 6, NSC I. On May 14, 2008, the CIA acknowledged receipt of JMP's request and notified JMP that no fees would be assessed for the request. Id. ¶ 7. On February 27, 2009, the CIA released ten of the articles requested by JMP. Four articles were released in full and six were released with redactions under FOIA Exemptions 1, 2, and 3. On April 13, 2009, JMP administratively appealed the CIA's invocation of these exemptions. Id. ¶¶ 8-9.

Several months after the administrative appeal of the withholding decisions was filed, on July 31, 2009, Mr. McClanahan left JMP to charter NSC and serve as its Executive Director. Id. ¶ 11. Because the request for the Studies in Intelligence articles were a " pet project[ ]" of Mr. McClanahan's, see Pl.'s 443 Opp'n at 25, on October 7, 2009, JMP notified the CIA that it was assigning all rights, benefits and interests in that request to NSC, including the right to " pursue any administrative or legal methods at [NSC's] disposal" relative to this request and also " surrendering any claims it may have" with respect to this request. Id. Ex. Q at 1, ECF No. 12-18; Compl. ¶ 12, NSC I. While the administrative appeal of the exemptions claimed on the Studies in Intelligence articles was pending, the plaintiff sent a letter to the CIA on May 25, 2010, requesting that the appeal be amended to include a challenge to a redaction in one of the articles since the agency had not claimed an exemption for this redaction, and the redaction had been omitted from the original appeal. Compl. ¶ 13, NSC I. Prior to sending this letter, the plaintiff had begun to suspect that the CIA was refusing to recognize JMP's assignment of rights (the " Assignment" ), and the plaintiff therefore requested assistance from the CIA's Office of Government Information Services (" OGIS" ) to clarify the CIA's position on the Assignment. Id. ¶ 14. The OGIS responded to the...

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