Nat'l Sec. Counselors v. Cent. Intelligence Agency
| Decision Date | 20 March 2013 |
| Docket Number | Civil Action No. 12–284 (BAH). |
| Parties | NATIONAL SECURITY COUNSELORS, et al., Plaintiffs, v. CENTRAL INTELLIGENCE AGENCY, et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
OPINION TEXT STARTS HERE
Bradley P. Moss, Law Office of Mark S. Zaid, P.C., Washington, DC, Kelly Brian McClanahan, National Security Counselors, Arlington, VA, for Plaintiffs.
Galen Nicholas Thorp, U.S. Department of Justice, Washington, DC, for Defendants.
The plaintiffs—a group consisting of journalists, academics, and government watchdog groups—bring this action against the defendants Central Intelligence Agency (“CIA”) and Office of the Director of National Intelligence (“ODNI”) pursuant to, inter alia, the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 and the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701 et seq. The plaintiffs each submitted at least one FOIA request or Mandatory Declassification Review (“MDR”) request to the CIA between July 2011 and January 2012, and they challenge the CIA's responses to those requests in a number of ways. In addition to issues related to specific FOIA requests, the plaintiffs claim that the CIA is engaging in a variety of policies or practices that constitute ongoing and systematic violations of the FOIA. Furthermore, the plaintiffs challenge the CIA's promulgation of a final rule regarding how fees are assessed for MDR requests, without first subjecting the rule to notice-and-comment procedures. The CIA has now moved to dismiss nine of the twenty-six causes of action pleaded in the plaintiff's First Amended Complaint, pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). This partial motion to dismiss will be granted in part and denied in part.
I. BACKGROUND
This case, in its entirety, ultimately implicates over thirty separate FOIA and MDR requests submitted by the plaintiffs, along with four alleged policies or practices of the CIA and one final rule promulgated by the CIA. See First Am. Compl. (“FAC”) ¶¶ 19–233, ECF No. 9. The CIA's pending partial motion to dismiss, however, only touches upon fourteen of these specific requests, 1 in addition to the four policies or practices and the single final rule. Therefore, the Court will only set forth the facts that are relevant to deciding the pending motion.
On October 20, 2010, plaintiff National Security Counselors (“NSC”) submitted to ODNI a FOIA request “for all FOIA Referral Memos sent to other government agencies in Fiscal Year 2010 and any subsequent correspondence with the agencies regarding these memos or the records to which they refer.” Id. ¶ 221. In response to this request, on July 20, 2011 (“Request # 1”) and November 4, 2011 (“Request # 2”), the ODNI “referred an unknown amount of CIA material to CIA for review and direct response to NSC.” 2See id. ¶¶ 222, 225. On March 13, 2012 and March 15, 2012, the CIA “withheld all information” from Request # 1 and Request # 2, respectively, citing FOIA Exemptions 3 and 5. Id. ¶¶ 229–30. NSC did not file an administrative appeal of these withholding determinations. Nevertheless, NSC claims that the CIA's denial letters for Request # 1 and Request # 2 were “legally insufficient” to trigger an administrative appeal because they did not “provide an estimate of the volume of any denied matter” pursuant to 5 U.S.C. § 552(a)(6)(F). See FAC ¶¶ 231–32. Therefore, NSC alleges that it has constructively exhausted its administrative remedies because “twenty working days have elapsed without a substantive determination by CIA which meets the volume estimate requirement of FOIA.” See id. ¶ 232.
On September 6, 2011, plaintiff Kathryn Sack submitted a FOIA request (“Request # 3”) that sought “thirty-two specified documents currently published in the CIA Records Search Tool (‘CREST’).” Id. ¶ 177. This request specified that “ ‘[r]ecords which are currently published in CREST in redacted form should be reviewed for full release under FOIA,’ ” and requested a public-interest fee waiver and production of any responsive records in an electronic format. See id. On September 13, 2011, the CIA “released paper copies of the redacted versions of the thirty-two documents which were published in CREST” and also “denied Sack's request for a public interest fee waiver and assessed a duplication fee of $13, stating that there could be no public interest in releasing records which were already published in CREST.” Id. ¶ 178. On September 26, 2011, Sack “[administratively] appealed all redactions in the thirty-two documents” and the fee-waiver denial. Id. ¶ 179. On October 18, 2011, the CIA responded to Sack's administrative appeal, stating that “[i]t was not clear that you were requesting a re-review of these documents,” though “we can open a new request to address this re-review if you wish.” Id. ¶ 180. The CIA's response also stated that “you were not given appeal rights in the earlier response, and, as such, we cannot accept your appeal.” Id. The plaintiffs challenge this response by the CIA, both because “Sack has a legal right ... to obtain the information she seeks” and because “Sack has a legal right ... to receive a public interest fee waiver.” See id. ¶¶ 181–82. Specifically, the plaintiffs allege that “there is no legal basis for CIA to simply provide records which had been previously processed when Sack explicitly specified in her initial request letter that all records currently published in redacted form were to be re-processed for release under FOIA.” Id. ¶ 181.3
Also on September 6, 2011, NSC submitted a FOIA request to the CIA (“Request # 4”) that was related to one of its previous requests. See id. ¶ 161. In particular, the CIA's response to a prior FOIA request had stated that review of certain documents “would impose an excessive and unreasonable burden on the [CIA], and pursuant to relevant precedent, we must decline to process such requests.' ” See id. ¶ 160. Hence, Request # 4 requested “records pertaining to the ‘relevant precedent’ to which this letter referred.” Id. ¶ 161. On October 21, 2011, the CIA “released one document comprised solely of the paragraph which had been used in the response letter to” the previous request and “did not list the records withheld in their entirety.” See id. ¶ 163. On December 29, 2011, NSC sent a letter to the CIA, requesting a list that “identifies the records being withheld and describes the reasons for their withholding in general terms.” Id. ¶ 164. NSC's letter further stated that “[u]ntil we obtain such a list, we do not consider your response to constitute a proper final determination response and reject your appeal deadline.” Id. Similar to its challenge to Request # 1 and Request # 2, discussed above, NSC contends that it constructively exhausted its administrative remedies regarding Request # 4 because “twenty working days have elapsed without a substantive determination by CIA which meets the volume estimate requirement of FOIA.” See id. ¶ 167.
On May 4, 2010, NSC submitted a FOIA request to the CIA for, inter alia, “the 15 FOIA requests received by the [CIA] during Fiscal Year 2008 that were classified as full denials because the Records were not Reasonably Described in” the CIA's 2008 Annual Report. See id. ¶ 184 (internal quotation marks omitted); see also Defs.' Ex. C at 1, ECF No. 14–3. That same day, NSC also submitted a similar FOIA request to the CIA that sought, inter alia, “[t]he 290 FOIA requests received by the CIA during Fiscal Year 2008 that were classified as full denials because they were considered Improper FOIA Requests for Other Reasons” in the CIA's 2008 Annual Report. See Defs.' Ex. D at 1 (internal quotation marks omitted), ECF No. 14–4; FAC ¶ 187; see also Decl. of Martha Lutz ¶ 65, Nat'l Sec. Counselors v. CIA, No. 11–444 (D.D.C. Dec. 20, 2011). NSC agreed to combine these two requests into one, and the CIA provided NSC with records responsive to the merged request on August 31, 2011. See FAC ¶¶ 186, 188. NSC alleges that “it is not possible to discern from the records themselves which records are responsive to which request,” and so NSC “asked CIA several times to identify the fifteen records which were responsive to” the first request, but “CIA refused to provide any clarification.” See id. ¶ 189. NSC therefore submitted a new FOIA request on October 12, 2011 (“Request # 5”), which sought “the first page of the initial response letter for each of the fifteen FOIA requests identified in” its first May 4, 2010 FOIA request. Id. ¶ 190. The CIA nevertheless “refused to process the request, stating that it was a duplicate of one of the line items of the merged [r]equest.” See id. ¶ 191. NSC attempted to appeal this determination by the CIA not to process Request # 5, but the CIA “refused to accept NSC's appeal” because the request was never processed. See id. ¶¶ 192–93. NSC challenges the CIA's response to Request # 5 and asserts that it has a legal right to the information sought in that request. See id. ¶ 194.
The plaintiffs also challenge what they allege are four separate policies or practices of the CIA that constitute ongoing violations of the FOIA. The Court will summarize below the plaintiffs' allegations regarding each claimed policy or practice.
Between September 6, 2011 and September 14, 2011, NSC submitted five FOIA requests to the CIA. See FAC ¶ 69. In response to each of these requests, the CIA notified NSC that “[w]e determined that your request falls into the ‘all other’ fee category, which may require you to pay charges to cover the cost of searching for and reproducing responsive records (if any) beyond the first 100 pages of reproduction and the first two hours of search time, which are free.” Id. ¶ 70. The CIA's letters also stated that “we will need your...
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