LOOKS Filmproduktionen GMBH v. Cent. Intelligence Agency

• Decision Date: 05 August 2016
• Docket Number: Civil Action No. 14-1163 (BAH)
• Citation: 199 F.Supp.3d 153
• Parties: LOOKS FILMPRODUKTIONEN GMBH, Plaintiff, v. CENTRAL INTELLIGENCE AGENCY, Defendant.
• Court: U.S. District Court — District of Columbia

199 F.Supp.3d 153

LOOKS FILMPRODUKTIONEN GMBH, Plaintiff,
v.
CENTRAL INTELLIGENCE AGENCY, Defendant.

Civil Action No. 14-1163 (BAH)

United States District Court, District of Columbia.

Signed August 05, 2016

199 F.Supp.3d 159

Kelly Brian McClanahan, National Security Counselors, Rockville, MD, for Plaintiff.

Heather D. Graham-Oliver, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendant.

MEMORANDUM OPINION

BERYL A. HOWELL, Chief Judge

The plaintiff, LOOKS Filmproduktionen GMBH ("LOOKS"), a German documentary film production and distribution company, brings this case against the Central Intelligence Agency ("CIA"), asserting two claims: (1) that the CIA unlawfully denied the plaintiff the requested records under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 ; and (2) that the CIA wrongfully aggregated the plaintiff's two FOIA requests, in violation of the FOIA and the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701 et seq. First Am. Compl. ("FAC") ¶¶ 3, 30, 41, ECF No. 25. Pending before the Court are the CIA's motions for summary judgment on the first claim and to dismiss the second claim, Def's Mot. Summ. J. ("Def.'s SJ Mot."), ECF No. 16; Def.'s Supp. Mot. Dismiss Pl.'s APA Claim ("Def.'s Mot. Dismiss"), ECF No. 27, and the plaintiff's cross-motion for partial summary judgment on part of the first claim and the second claim in its entirety, Pl.'s Cross-Mot. for Partial Summ. J. ("Pl.'s Mot."), ECF No. 31. For the reasons set out below, the CIA's motion for summary judgment is granted, the CIA's motion to dismiss the second claim is denied as moot, and the plaintiff's cross-motion for partial summary judgment is denied as moot.

I. BACKGROUND

LOOKS¹ alleges that it is currently making a documentary film about Erich Mielke, the former head of the Ministry for State Security, also known as the "Stasi," of the erstwhile German Democratic Republic, colloquially known as East Germany. FAC ¶¶ 5, 6, 8. On October 11, 2012, LOOKS submitted a FOIA request to the CIA seeking "all records regarding Erich [Fritz Emil] Mielke, Minister of State Security in the German Democratic Republic (GDR)." Def's St. Mat. Facts as to Which There Is No Genuine Issue ("Def.'s SMF") ¶ 1 (alteration in original), ECF No. 16-1; Pl.'s Resp. to Def.'s SMF ("Pl.'s SMF Resp.") ¶ 1, ECF No. 30; Pl.'s St. Mat. Facts as to Which There Is No Genuine Issue ("Pl.'s SMF") ¶ 2, ECF No. 31. On October 31, 2012, the CIA's Information and Privacy Coordinator told the plaintiff, in a letter, stating that after "conduct[ing] a search of its previously released documents database for any responsive records," two responsive documents were located and provided to the plaintiff. Def's SMF ¶ 2; Pl.'s SMF Resp. ¶ 2; Pl.'s SMF ¶ 3. The letter further stated that the CIA "could neither confirm nor deny the existence or nonexistence of any other responsive records," and denied the "request ... pursuant to FOIA Exemptions (b)(1) and (b)(3)." Def.'s SMF ¶ 2; Pl.'s SMF Resp.

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¶ 2. In other words, the CIA issued a Glomar response.²

On December 21, 2012, the plaintiff appealed the CIA's denial of its request and use of a Glomar response, Def's SMF ¶ 3; Pl.'s SMF Resp. ¶ 3; Pl.'s SMF ¶ 4, which appeal was denied by the CIA's Agency Release Panel ("ARP") on March 27, 2013, Def.'s SMF ¶ 4; Pl.'s SMF Resp. ¶ 4; Pl.'s SMF ¶ 5. Dissatisfied with this result, the plaintiff sought assistance from the Office of Government Information Services ("OGIS"), a "FOIA ombudsman" charged with the task of resolving disputes between FOIA requesters and the government. On December 17, 2013, the OGIS advised the plaintiff that because the CIA does not process reconsideration requests, the plaintiff should "submit a new request, [referencing its] previous request," and "refine this request to focus around a specific historical event, without referring to a specific individual." Def.'s SJ Mot., Ex. E to Decl. Martha M. Lutz (Letter from OGIS to Plaintiff, dated Dec. 17, 2013) at 5, ECF No. 16-4; Def.'s SMF ¶ 5; Pl.'s Resp. SMF ¶ 5.

On February 24, 2014, the plaintiff submitted two new FOIA requests ("2014 FOIA Requests") to the CIA: (1) "for copies of all records about former East German minister of State Security Erich Mielke maintained or created by the Medical and Psychological Analysis Center ("MPAC") or its predecessor Office of Leadership Analysis ("OLA")," Def.'s SJ Mot., Ex. F to Decl. Martha M. Lutz ("2014 FOIA Requests") at 6, ECF No. 16-4; and (2) "for copies of all records about former East German Minister of State Security Erich Mielke," excluding "any records maintained or created by the [MPAC] or its predecessor [OLA]," and noting that the request is a "resubmission—with some minor modifications—" of a previous FOIA request, and that the plaintiff expects this new request to be "treat[ed] ... as a reconsideration and not as a new request," id. at 9. See also Def.'s SMF ¶ 6; Pl.'s SMF Resp. ¶ 6; Pl.'s SMF ¶¶ 7, 8. The plaintiff expressly instructed the CIA "not [ ] [to] combine these [two] requests, as they have been filed separately to allow [the CIA] to process and release records in response to the narrower request ... while still processing the records responsive to the broader request." 2014 FOIA Requests at 6 n. 1.

Notwithstanding the plaintiff's instructions, on March 14, 2014, the CIA combined the 2014 FOIA requests and issued a Glomar response "pursuant to FOIA Exemptions (b)(1) and (b)(3)" to both, noting

199 F.Supp.3d 161

that the plaintiff "declined to act on a recommendation proffered by the [OGIS]," and the "purported modifications show[ ] no alteration to the scope of records being sought." Def.'s SJ Mot., Ex. G to Decl. Martha M. Lutz ("CIA's Glomar Resp. to 2014 Requests") at 1-2, ECF No. 16-5; Def.'s SMF ¶ 7; Pl.'s Resp. SMF ¶ 7; Pl.'s SMF ¶¶ 9, 10. On May 22, 2014, the plaintiff requested that the CIA review the denial "at the appellate level and reverse the unreasonable position your agency has taken" within twenty business days, while maintaining the position that all administrative remedies have already been exhausted because the denial was "in fact a reconsideration of an appellate determination regarding a previous request." Def.'s SJ Mot., Ex. H to Decl. Martha M. Lutz ("Pl.'s Appeal of 2014 Denial") at 3, ECF No. 16-5; Def.'s SMF ¶ 8, Pl.'s SMF Resp. ¶ 8; Pl.'s SMF ¶ 11. In response, on June 19, 2014, the CIA indicated that it "does not have a reconsideration mechanism" and that the plaintiff's May 22, 2014 letter would be processed as "an administrative appeal... to give [the plaintiff] maximum consideration." Def.'s SJ Mot., Ex. I to Decl. Martha M. Lutz at 4, ECF No. 16-5.

Before a final decision on its appeal, the plaintiff filed the instant lawsuit. Def.'s SMF ¶ 11; Pl.'s Resp. SMF ¶ 11; Pl.'s SMF ¶ 12; see also Compl., ECF No. 1. The following month, on August 8, 2014, the CIA denied the appeal. Def.'s SJ Mot., Ex. J to Decl. Martha M. Lutz ("CIA's 2014 Appeal Denial") at 5, ECF No. 16-5. Shortly thereafter, however, on October 1, 2013 the CIA's Information Management Services Office decided to "reverse its initial Glomar position and accept LOOKS'[s] Feb 22, 2014 FOIA requests." Def.'s SJ Mot., Ex. K to Decl. Martha M. Lutz at 6, ECF No. 16-5. The plaintiff was assured that "[t]he appropriate Agency Directorates have been tasked to conduct a reasonable full text search for records regarding Erich Mielke," including, due to the age of the potential documents, conducting "manual searches in the CIA's Records Archives." Id. On November 3, 2014, the CIA informed the plaintiff that the search was completed and had located twenty-seven responsive documents, thirteen "of which [were] released in segregable form with redactions made on the basis of FOIA exemption[s] (b)(1) and/or (b)(3)," and fourteen of which were withheld "in their entirety on the basis of FOIA exemption[s] (b)(1) and/or (b)(3)." Def.'s SJ Mot., Ex. L to Decl. Martha M. Lutz at 7; Def.'s SMF ¶ 13; Pl.'s Resp. SMF ¶ 13; Pl.'s SMF ¶ 15. In addition to the documents, the CIA also produced a Vaughn index.³ See Def.'s SJ Mot., Ex. M to Decl. Martha M. Lutz ("Vaughn Index"), ECF No. 16-6.

After nearly five months of "confer[ring] in order to determine whether any of the issues in contention may be resolved," Def.'s Consent Mot. for Extension of Time to File Its Mot. Summ. J. at 1, ECF No. 11, and five extensions of time, the CIA filed its motion for summary judgment on April 2, 2015, see Def.'s SJ Mot. Over a month later, the plaintiff moved for leave to file the operative First Amended Complaint, which was granted. See Pl.'s Mot. for Leave to File Am. Compl., ECF No. 23; Minute Order, dated June 19, 2015; FAC. The CIA subsequently filed a supplemental motion to dismiss the plaintiff's newly asserted second claim seeking relief under the FOIA and the APA. See Def.'s Mot. Dismiss. The plaintiff also filed its own cross-motion for partial summary judgment as to a narrow aspect of the

199 F.Supp.3d 162

FOIA claim and as to the entirety of the FOIA/APA claim. See Pl.'s Mot.

After the filing of the plaintiff's opposition and cross-motion, the CIA ...