Nat'l Sec. Counselors v. Cent. Intelligence Agency

• Decision Date: 15 August 2013
• Docket Number: 11–444,11–445(BAH).,Civil Action Nos. 11–443
• Parties: NATIONAL SECURITY COUNSELORS, Plaintiff, v. CENTRAL INTELLIGENCE AGENCY, et al., Defendants.
• Court: U.S. District Court — District of Columbia

960 F.Supp.2d 101

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

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

United States District Court,
District of Columbia.

Aug. 15, 2013.

[960 F.Supp.2d 116]

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

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

MEMORANDUM OPINION
BERYL A. HOWELL, District Judge.

The plaintiff National Security Counselors (“NSC”) brought these three related actions against six federal agencies pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, claiming that the defendant agencies have violated the FOIA in numerous ways.¹ NSC's claims run the gamut, including challenges to: the withholding of specific information; the adequacy of the agencies' search efforts; the refusal to process FOIA requests; the refusal to produce responsive records in an electronic format; and certain policies or practices which the plaintiff claims are ongoing and systematic FOIA violations. Although six agencies are named as defendants, ² the vast majority of the plaintiff's claims relate to the actions of the Central Intelligence Agency (“CIA”) in processing and responding to FOIA requests. The defendants previously moved to dismiss many of the plaintiff's claims, which this Court previously granted in part and denied in part. See Nat'l Sec. Counselors v. CIA (“ NSC I ”), 898 F.Supp.2d 233 (D.D.C.2012). The defendants now move for summary judgment on all of the plaintiff's remaining claims, and the plaintiff has also cross-moved for summary

[960 F.Supp.2d 117]

judgment on a portion of those claims. Additionally, the plaintiff has filed a motion for sanctions in one of the related cases and a motion for leave to file an amended complaint in another. For the reasons discussed below, the Court grants in part and denies in part the defendants' motions for summary judgment, grants in part and denies in part the plaintiff's cross-motions for summary judgment, denies the plaintiff's motion for sanctions, and denies the plaintiff's motion for leave to file an amended complaint.

[960 F.Supp.2d 118]

I. BACKGROUND

The plaintiff has twenty-four claims remaining in these related actions. Since twenty-one of the plaintiff's remaining claims relate to specific FOIA requests, the Court will briefly summarize the timing and content of those requests, the agency's processing of and response to those requests, and the aspects of the agency's processing and responses that are challenged by the plaintiff.³ In summarizing the specific FOIA requests at issue, the Court will proceed in chronological order, rather than in the order the requests are pleaded in the plaintiff's complaints. In this regard, the Court will organize its discussion by the year in which the FOIA requests were first submitted. The Court will also discuss the factual and procedural background related to the plaintiff's motion for sanctions.

The plaintiff's two other remaining claims relate to policies or practices of the CIA that the plaintiff alleges are in violation of the FOIA, which claims the Court summarized, along with other policy and practice claims, in its previous memorandum opinion in these related cases.⁴See NSC I, 898 F.Supp.2d at 243–44, 248–49. Specifically, as labeled in the Court's previous opinion, the plaintiff challenges the CIA's Assignment of Rights Policy and its Document–Level Exemption Policy.⁵See id.

[960 F.Supp.2d 119]

A. 2009 FOIA Requests

1. Count Twenty in No. 11–444: September 25, 2009 FOIA Request to the CIA

In a letter dated September 25, 2009, the plaintiff submitted a FOIA request to the CIA seeking “all [CIA] records, including cross-references, pertaining to guidelines for attorneys in the Office of General Counsel (‘OGC’) for the conduct of civil cases, especially pertaining to interactions between OGC attorneys and Department of Justice (‘DOJ’) attorneys.” See Decl. of Martha M. Lutz (Dec. 13, 2011) (“First Lutz Decl.”) Ex. T at 1, No. 11–444, ECF No. 20–4. By letter dated October 28, 2009, the CIA acknowledged this request and informed NSC that the CIA would “search for records existing through the date of this acceptance letter.” First Lutz Decl. Ex. U at 1, No. 11–444, ECF No. 20–4. By letter dated January 10, 2011, the CIA provided a final response to the plaintiff's September 25, 2009 FOIA request, informing the plaintiff that “[w]e did not locate any records responsive to your request.” First Lutz Decl. Ex. V. at 1, No. 11–444, ECF No. 20–4. The plaintiff administratively appealed the adequacy of the CIA's search efforts with respect to this request by letter dated January 21, 2011. See First Lutz Decl. ¶ 57. By letter dated March 15, 2011, the CIA's Agency Release Panel (“ARP”) denied the plaintiff's appeal, concluding that the CIA's search efforts were adequate. See id. ¶ 59. In Count Twenty of No. 11–444, the plaintiff challenges the adequacy of the CIA's search efforts in response to the plaintiff's September 25, 2009 request, including the CIA's use of an allegedly improper search cut-off date. See First Am. Compl. (“444 FAC”) ¶¶ 104–110, No. 11–444, ECF No. 6; Mem. in Supp. Def.'s Mot. for Summ. J. on Counts 1, 8, 9, 10, 17, 18, & 20 (“Def.'s First 444 Mem.”) at 10–11, No. 11–444, ECF No. 20.⁶

2. Count Eight in No. 11–445: October 22, 2009 FOIA Request to the DOJ

On October 22, 2009, the plaintiff submitted a FOIA request to the Department of Justice (“DOJ”) Office of Legal Counsel (“OLC”), seeking “copies of all [DOJ] [OLC] opinions concerning the FOIA or the Privacy Act.” Decl. of Paul P. Colborn (Oct. 2, 2012) (“Colborn Decl.”) Ex. A, No. 11–445, ECF No. 29–11. By e-mail dated October 25, 2009, the plaintiff expanded the scope of this request to include opinions concerning the Federal Records Act, the Presidential Records Act, or agency records retention policies. See Colborn Decl. Ex. B, No. 11–445, ECF No. 29–11. On March 27, 2012, the OLC provided a final response to the plaintiff's FOIA request, producing twenty records in full and withholding all remaining responsive records under FOIA Exemption 5 because “[t]hey are protected by the deliberative process and attorney-client privileges.” Colborn Decl. Ex. C, No. 11–445, ECF No. 29–11. On July 6, 2012, the OLC sent another letter to the plaintiff, advising it

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that the OLC was “releasing ... one of the withheld records because [OLC] discovered that it was previously released.” Colborn Decl. Ex. D, 11–445, ECF No. 29–11. After releasing that one record, the OLC informed NSC that it continued to withhold fifty-eight records responsive to its request. Id. In Count Eight of No. 11–445, the plaintiff challenges the DOJ's determination to withhold sixteen of the responsive OLC opinions under FOIA Exemption 5. See First Am. Compl. (“445 FAC”) ¶¶ 62–67, No. 11–445, ECF No. 7; Colborn Decl. Ex. F at 1, No. 11–445, ECF No. 29–11.

3. Counts One, Five, and Six in No. 11–445: December 1, 2009 FOIA Requests to the CIA, DIA, and ODNI

On December 1, 2009, the plaintiff submitted a FOIA request to the CIA for “all [CIA] records referencing FOIA and Privacy Act requests submitted by [ten listed parties] that contain remarks, comments, notes, explanations, etc. made by CIA personnel or contractors about the processing of these requests (and appeals, if appropriate), the invocations of exemptions, or related matters.” See Decl. of Martha M. Lutz (Sept. 26, 2012) (“Third Lutz Decl.”) Ex. A at 1, No. 11–445, ECF No. 52–1; id. Ex. B at 1, No. 11–445, ECF No. 52–1. On December 8, 2009, the plaintiff limited the scope of this request by notifying the CIA that it could “limit [its] search for requests submitted by Michael Ravnitzky to only requests submitted in 2006 and 2009” and that it could “limit [its] search to the last four years in which requests were received from [each] requester.” See Third Lutz Decl. Ex. A. On September 22, 2010, the CIA produced seventy records to the plaintiff in part with redactions made pursuant to FOIA Exemptions 3 and/or 6, and the CIA also notified the plaintiff that the CIA was withholding seventy-four other responsive records in their entirety pursuant to FOIA Exemptions 1, 3, and/or 5. See Third Lutz Decl. Ex. B at 1. In Count One of No. 11–445, the plaintiff challenges all of the CIA's withholding determinations made under FOIA Exemptions 1, 3, and/or 5. See 445 FAC ¶¶ 10–17; Mem. in Supp. Defs.' Mot. Summ. J. on Counts 1, 2, 3, 5, 6, 7, 8, 9, 10, and 13 (“Defs.' First 445 Mem.”) at 2, No. 11–445, ECF No. 29; Pl.'s Opp'n to Defs.' Mot. Summ. J. on Counts 1, 2, 3, 5, 6, 7, 8, 9, 10, and 13 (“Pl.'s First 445 Opp'n”) at 23 n. 19, No. 11–445, ECF No. 33.

Also on December 1, 2009, the plaintiff submitted FOIA requests to the Defense Intelligence Agency (“DIA”) and the Office of the Director of National Intelligence (“ODNI”) for substantially the same category of records sought in the December 1, 2009 FOIA request to the CIA. The only difference was that, instead of records containing processing notes from “CIA personnel or contractors,” the request to the DIA sought processing notes from “DIA personnel or contractors” and the request to the ODNI sought processing notes from “NSA personnel or contractors.” See Decl. of John F. Hackett (Oct. 1, 2012) (“Hackett Decl.”) Ex. A at 1, No. 11–445, ECF No. 29–8; Decl. of Alesia Y. Williams (Oct. 1, 2012) (“First Williams Decl.”) Ex. A at 1, No. 11–445, ECF No. 53–1. The plaintiff also narrowed its processing notes requests to the DIA and the ODNI on December 8, 2009 in the same manner it limited its processing notes request to the CIA. See Hackett Decl. Ex. B, No. 11–445, ECF No. 29–8; First Williams Decl. Ex. B, No. 11–445, ECF No. 53–1.

The ODNI produced responsive records to the plaintiff on May 27, 2010 and June 21, 2010, releasing a total of thirty-four pages, in part, with redactions made...