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

• Decision Date: 06 September 2016
• Docket Number: Civil Action Nos. 11-443,11-444,11-445 (BAH)
• Citation: 206 F.Supp.3d 241
• Parties: NATIONAL SECURITY COUNSELORS, Plaintiff, v. CENTRAL INTELLIGENCE AGENCY, et al., Defendants.
• Court: U.S. District Court — District of Columbia

206 F.Supp.3d 241

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.

Signed September 6, 2016

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

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

MEMORANDUM OPINION

BERYL A. HOWELL, Chief Judge

The plaintiff, National Security Counselors ("NSC"), a Virginia-based non-profit organization, brought these three related actions against six federal intelligence agencies (collectively, "the defendants")—the Central Intelligence Agency ("CIA"), the Defense Intelligence Agency ("DIA"), the Department of Justice ("DOJ"), the Department of State ("State"), the National Security Agency ("NSA"), and the 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.¹ Stemming from the plaintiff's submission of numerous FOIA requests to the defendants, these actions originally comprised more than four dozen claims challenging the defendants' responses to these requests, as well as broader practices and policies guiding the defendants' respective procedures for responding to FOIA requests.

With the majority of these claims resolved through prior dispositive motions, now pending before the Court are the defendants' motions for summary judgment on all of the plaintiff's remaining claims, as well as the plaintiff's cross-motions for summary judgment, either in whole or in part, on many of these claims. In addition, the plaintiff has moved for reconsideration of this Court's prior dismissal of one its FOIA claims. For the reasons set out below, summary judgment is granted to the defendants with respect to each of the plaintiff's remaining claims, and the plaintiff's effort to obtain additional disclosure in response to its various FOIA requests is denied in all respects.

I. BACKGROUND

The relevant factual and procedural history is summarized only briefly below since the Court's prior opinions resolving the parties' previous dispositive motions provide ample additional detail. See Nat'l Sec. Counselors v. CIA ("NSC I "), 898 F.Supp.2d 233 (D.D.C.2012) ; Nat'l Sec. Counselors v. CIA ("NSC II "), 960 F.Supp.2d 101 (D.D.C.2013). The present opinion addresses the outstanding claims originally alleged in three related cases, which together have called upon the Court to resolve no fewer than six dispositive motions over the last five years.

The story begins in February 2011, when the plaintiff filed three separate actions—NSC 443, NSC 444, and NSC 445—alleging that the defendants improperly processed dozens of the plaintiff's FOIA requests and maintained various policies and practices that constituted ongoing violations of FOIA or the APA. NSC I , 898 F.Supp.2d at 241–42.² In total, these cases alleged forty-five separate claims against the defendants. See NSC 443 Compl., ECF No. 1; NSC 444 Am. Compl., ECF No. 6; NSC 445 Am. Compl, ECF No. 7. After dismissal of the majority of the plaintiff's claims relating to the defendants' alleged policies and practices in handling FOIA requests, id. 290–91, upon motion by the plaintiff, two of these cases, NSC 443 and NSC 444, were consolidated, with the third case continuing to proceed as a separate action, see NSC 444 Minute Order, dated Apr. 2, 2014.

Thereafter, the defendants moved for summary judgment on NSC's remaining claims in each of these actions, and NSC cross-moved for summary judgment on a portion of those claims. NSC II , 960 F.Supp.2d at 116–17. The Court granted in part and denied in part each of the defendants' motions, further resolving seven of NSC's claims. Id. at 208–11. With the plaintiff conceding summary judgment or voluntarily withdrawing two additional claims, id. at 118 n. 3, fifteen of NSC's claims against the defendants survived, in whole or in part, the parties' initial round of dispositive motions addressing this trio of cases. As a result, all of NSC's pattern or practice claims have now been dismissed, and its remaining claims relate to the defendants' responses to individual FOIA requests, including eleven requests submitted to the CIA, and one request submitted to each of the DIA, ODNI, DOJ, and State.

With these FOIA challenges still unresolved, the defendants set about reprocessing many of the relevant FOIA requests in an effort to comply fully with their obligations under the statute. See Joint Status Report, NSC 444 ECF No. 59. Thereafter, the defendants again moved for summary judgment on each of the plaintiff's remaining claims. See Defs.' Mot. Summ. J. on All Remaining Claims, NSC 444 ECF No. 60, NSC 445 ECF No. 59. In response, the plaintiff filed three separate cross-motions for partial summary judgment on a number of the outstanding claims. See Pl.'s Cross-Mot. Part. Summ. J., NSC 444 ECF No. 72, NSC 445 ECF Nos. 70, 73. During the course of briefing these motions, the parties continued to engage in settlement negotiations to an effort to narrow the issues requiring resolution by the Court. See Sec. Joint Mot. Amend Summ. J. Briefing Schedule at 1, NSC 444 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 NSC 444 Minute Order, dated Mar. 16, 2015.

On April 2, 2015, the parties jointly notified the Court that, of its original claims, NSC continued to challenge only the sufficiencyof the defendants' searches with respect to the FOIA requests at issue in NSC 444 Counts Eighteen and Twenty, and NSC 445 Counts One, Two, Three, and Seven. See Joint Summ. Remaining Disputes ("Joint Summ."), NSC 444 ECF No. 88. In addition, NSC still challenges the withholding, in full or in part, of 216 agency records identified by the defendants in an updated Vaughn index. See id. Ex. ("Combined Vaughn Index"), NSC 444 ECF No. 88-1.³ This apparent progress notwithstanding, NSC also indicated its intent to file two motions, pursuant to Federal Rule of Civil Procedure 54, seeking reconsideration of this Court's prior dismissal of two of its claims against the CIA and DOJ. Id. at 2 n. 1. While ultimately declining to file one of these expected motions, see Pl.'s Not. Non-Filing Mot., NSC 445 ECF No. 85, NSC has moved for reconsideration of various aspects of the Court's prior disposition of its claim in Count Three of NSC 443. Pl.'s Part. Mot. Recon., NSC 444 ECF No. 89.

Each of the parties' three pending motions have been fully briefed and are now ripe for consideration. For ease of reference, these three motions are: (1) the defendants' Motion for Summary Judgment on All Remaining Claims, NSC 444 ECF No. 60, NSC 445 ECF No. 59; (2) the plaintiff's Motion for Partial Reconsideration, NSC 444 ECF No. 89; and (3) the plaintiff's Cross-Motion for Partial Summary Judgment addressing the plaintiff's underlying FOIA challenges, NSC 445 ECF No. 70.

II. LEGAL STANDARD

Congress enacted the FOIA as a means "to open agency action to the light of public scrutiny," Am. Civil Liberties Union v. U.S. Dep't of Justice , 750 F.3d 927, 929 (D.C.Cir.2014) (quoting Dep't of Air Force v. Rose , 425 U.S. 352, 361, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976) ), and "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 U.S. Dep't of Justice v. Julian , 486 U.S. 1, 8, 108 S.Ct. 1606, 100 L.Ed.2d 1 (1988) ). As the Supreme Court has "consistently recognized[,] ... the basic objective of the Act is disclosure." Chrysler Corp. v. Brown, 441 U.S. 281, 290, 99 S.Ct. 1705, 60 L.Ed.2d 208 (1979). At the same time, the statute represents a "balance [of] the public's interest in governmental transparency against 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) (internal quotation marks and citations omitted). Reflecting that balance, 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, 131 S.Ct. 1259, 179 L.Ed.2d 268 (2011) (internal quotation marks and citations omitted) (citing FBI v. Abramson, 456 U.S. 615, 630, 102 S.Ct. 2054, 72 L.Ed.2d 376 (1982) ); see 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." Rose, 425 U.S. at 361, 96 S.Ct. 1592.

The agency invoking an exemption to the FOIA has the burden "to establish that the requested information is exempt." Fed. Open Mkt. Comm. of Fed. Reserve Sys. v. Merrill, 443 U.S. 340, 352, 99 S.Ct. 2800, 61 L.Ed.2d 587 (1979) ; see U.S. Dep't of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 755, 109 S.Ct. 1468, 103 L.Ed.2d 774 (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), cert. denied sub nom. Elec. Frontier Found. v. Dep't of Justice , ––– U.S. ––––, 135 S.Ct. 356, 190 L.Ed.2d 250 (2014) ; Assassination Archives & Research Ctr. v. CIA, 334 F.3d 55, 57 (D.C.Cir.2003). In order to carry this burden, an agency must submit sufficiently detailed affidavits or declarations, a Vaughn index of the withheld documents,⁴ or both, to demonstrate that the government has analyzed...