Nat'l Sec. Counselors v. Cent. Intelligence Agency, Civil Action No. 12-284 (BAH)

• Decision Date: 14 November 2016
• Docket Number: Civil Action No. 12-284 (BAH)
• Parties: NATIONAL SECURITY COUNSELORS, et al., Plaintiffs, v. CENTRAL INTELLIGENCE AGENCY, et al., Defendants.
• Court: United States District Courts. United States District Court (Columbia)

NATIONAL SECURITY COUNSELORS, et al., Plaintiffs, v. CENTRAL INTELLIGENCE AGENCY, et al., Defendants.

Civil Action No. 12-284 (BAH)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

November 14, 2016

Chief Judge Beryl A. Howell

MEMORANDUM OPINION

The plaintiffs, a Virginia-based non-profit organization called National Security Counselors ("NSC") and three individuals (collectively, the "plaintiffs"), brought this action against the Central Intelligence Agency ("CIA") and the Office of the Director of National Intelligence ("ODNI") (collectively, the "defendants"), pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 500, et seq., and related statutes, challenging the defendants' responses to numerous FOIA requests and requests for Mandatory Declassification Review ("MDR") of classified agency records, as well as various practices and policies employed by the defendants in responding to such requests generally. While this action initially comprised more than two dozen separate claims under six federal statutes, seven of the plaintiffs' pattern or practice challenges have already been dismissed in whole or in part. Nat'l Sec. Counselors v. CIA (NSC I), 931 F. Supp. 2d 77 (D.D.C. 2013). Pending before the Court are two motions: the defendants' Renewed Motion for Summary Judgment as to all of the plaintiffs' remaining claims and the plaintiffs' Cross-Motion for Partial Summary Judgment. For the reasons set out below, the defendants' renewed motion is granted in part and denied in part, and the plaintiffs' motion is denied.

I. BACKGROUND

Much of the relevant factual background underlying the present motions is described in this Court's prior opinion resolving the defendants' motion to dismiss nine of the plaintiffs' claims. See NSC I, 931 F. Supp. 2d 77 (D.D.C. 2013). Consequently, the relevant factual and procedural history underlying the pending motions is again summarized only briefly below.

This case stems from the plaintiffs' submission of more than thirty FOIA and MDR requests to the CIA and ODNI between July 2011 and January 2012.¹ Seeking to challenge the defendants' responses to these specific requests, as well as various overarching practices allegedly used by the defendants in responding to such requests, the plaintiffs filed this action in February 2012. Compl., ECF No. 1. After amending their complaint to add four additional causes of action, the plaintiffs eventually alleged twenty-six separate claims against the defendants. First Am. Compl. ("FAC"), ECF No. 9. Upon motion by the defendants for partial dismissal of the plaintiffs' claims, see Defs.' Partial Mot. Dismiss Pls.' FAC, ECF No. 14, the Court dismissed six of the plaintiffs' claims in full, with a seventh claim dismissed in part. NSC I, 931 F. Supp. 2d at 112. As a result, following resolution of the defendants' initial motion to dismiss, nineteen of the plaintiffs' original claims remained pending, in whole or in part, against the defendants.²

Thereafter, the defendants moved for summary judgment on each of the plaintiffs' remaining claims, see Defs.' Mot. Summ. J., ECF No. 63, but this motion was denied without prejudice, Min. Order, dated Nov. 8, 2013, after the parties indicated in a joint status report that the defendants were revising their withholdings and reprocessing documents, requiring the filing of an "updated summary judgment motion," see Joint Mot. Extension Time File Proposed Briefing Schedule, at 2, ECF No. 72. The defendants then filed a renewed motion for summary judgment, see Defs.' Renewed Mot. Summ. J., ECF No. 74, and the plaintiffs cross-moved for summary judgment on certain of these claims, see Pls.' Cross-Mot. Part. Summ. J., ECF No. 78. During the course of briefing these outstanding motions, the parties continued to engage in negotiations in an effort to narrow the issues requiring resolution by the Court. See Sec. Joint Mot. Amend Summ. J. Briefing Schedule at 1, ECF No. 82. In light of these ongoing discussions, the Court stayed these actions and directed the parties to inform the Court of any issues still in dispute when their negotiations were complete. See Min. Order, dated March 16, 2015.

On April 2, 2015, the parties jointly notified the Court of the resolution of many of their remaining disputes. Despite this substantial progress, however, the parties reported that they continue to disagree as to five outstanding issues: (1) whether the CIA's MDR Fee Structure violates the terms of the Independent Offices Appropriations Act, 31 U.S.C. § 9701 ("IOAA"), and thus was adopted in violation of the APA (Count Two); (2) whether NSC failed to exhaust administratively its challenge to the CIA's response to a FOIA request seeking agency correspondence regarding certain earlier MDR requests (Count Four); (3) whether the CIA conducted adequate searches for agency records responsive to two of the plaintiffs' FOIA requests (Counts Seven and Sixteen); (4) whether the CIA properly issued a Glomar response toa FOIA request seeking information regarding agency records lost at the World Trade Center site following the September 11, 2001, attacks (Count Eleven); and (5) whether the CIA and ODNI wrongfully withheld, in full or in part, ninety-five agency records identified in an updated Vaughn index. See Joint Summ. Remaining Disputes ("Joint Summ.") at 3, ECF No. 95; id., Ex. Combined Vaughn Index and Chart ("Combined Vaughn Index") at 1-18, ECF No. 95-1.³ Each of these remaining issues has now been fully briefed by the parties and is ripe for consideration.

On November 1, 2016, the Court directed the defendants to provide an unredacted copy of one partially withheld document identified in the updated Vaughn index for in camera inspection. See Min. Order, dated Nov. 1, 2016. The defendants submitted the document for in camera inspection on November 3, 2016. See Notice of Filing, ECF No. 97.

II. LEGAL STANDARDS

A. Summary Judgment in FOIA Cases

Federal Rule of Civil Procedure 56 provides that summary judgment shall be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). The moving party bears the burden of demonstrating the "absence of a genuine issue of material fact" in dispute, Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986), while the nonmoving party must present specific facts supported by materials in the record that would be admissible at trial and that could enable a reasonable jury to find in its favor, see Anderson v. Liberty Lobby, Inc. (Liberty Lobby), 477 U.S. 242, 248 (1986); Allen v. Johnson, 795 F.3d 34, 38 (D.C. Cir. 2015) (noting that, onsummary judgment, appropriate inquiry is "whether, on the evidence so viewed, 'a reasonable jury could return a verdict for the nonmoving party'" (quoting Liberty Lobby, 477 U.S. at 248)). "[T]hese general standards under rule 56 apply with equal force in the FOIA context," Washington Post Co. v. U.S. HHS, 865 F.2d 320, 325 (D.C. Cir. 1989), and the D.C. Circuit has observed that "the vast majority of FOIA cases can be resolved on summary judgment,'" Brayton v. Office of the United States Trade Representative, 641 F.3d 521, 527 (D.C. Cir. 2011).

The FOIA was enacted "to promote the 'broad disclosure of Government records' by generally requiring federal agencies to make their records available to the public on request," DiBacco v. U.S. Army, 795 F.3d 178, 183 (D.C. Cir. 2015) (citing Dep't of Justice v. Julian, 486 U.S. 1, 8 (1988)). Reflecting the necessary balance between the public's interest in governmental transparency and "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), the FOIA contains nine exemptions set forth in 5 U.S.C. § 552(b), which "are explicitly made exclusive and must be narrowly construed," Milner v. U.S. Dep't of Navy, 562 U.S. 562, 565 (2011) (internal quotation marks and citations omitted); see also Murphy v. Exec. Office for U.S. Attys., 789 F.3d 204, 206 (D.C. Cir. 2015); Citizens for Responsibility & Ethics in Wash. v. U.S. Dep't of Justice (CREW), 746 F.3d 1082, 1088 (D.C. Cir. 2014); Pub. Citizen, Inc. v. Office of Mgmt. & Budget, 598 F.3d 865, 869 (D.C. Cir. 2010). "[T]hese limited exemptions do not obscure the basic policy that disclosure, not secrecy, is the dominant objective of the Act." Dep't of Air Force v. Rose, 425 U.S. 352, 361 (1976).

In litigation challenging the sufficiency of "the release of information under the FOIA, the agency has the burden of showing that requested information comes within a FOIA exemption." Public Citizen Health Research Group v. FDA, 185 F.3d 898, 904 (D.C. Cir. 1999)(internal quotations omitted); see also Fed. Open Mkt. Comm. of Fed. Reserve Sys. v. Merrill, 443 U.S. 340, 352 (1979) (agency invoking exemption bears the burden "to establish that the requested information is exempt"); U.S. Dep't of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 755 (1989); DiBacco, 795 F.3d at 195; CREW, 746 F.3d at 1088; Elec. Frontier Found. v. U.S. Dep't of Justice, 739 F.3d 1, 7 (D.C. Cir. 2014); Assassination Archives & Research Ctr. v. CIA, 334 F.3d 55, 57 (D.C. Cir. 2003). This burden does not shift even when the requester files a cross-motion for summary judgment because "the Government ultimately [has] the onus of proving that the [documents] are exempt from disclosure," while "[t]he burden upon the requester is merely to establish the absence of material factual issues before a summary disposition of the case could permissibly occur." Public Citizen Health Research Group, 185 F.3d at 904-05 (internal quotations and citations omitted; brackets in original).

An agency may carry its burden of properly invoking an exemption by submitting sufficiently detailed affidavits or...