Scudder v. Cent. Intelligence Agency
| Decision Date | 12 March 2014 |
| Docket Number | Civil Action No. 12–807 BAH |
| Citation | 25 F.Supp.3d 19 |
| Parties | Jeffrey Scudder, Plaintiff, v. Central Intelligence Agency, Defendant. |
| Court | U.S. District Court — District of Columbia |
Bradley P. Moss, Mark S. Zaid, Law Office of Mark S. Zaid, P.C., Washington, DC, for Plaintiff.
Rhonda C. Fields, United States Attorney's Office, Washington, DC, for Defendant.
The plaintiff Jeffrey Scudder seeks electronic copies of 4191 Studies in
(“SII ”)2 articles from the defendant, the Central Intelligence Agency (“CIA”), pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. See Compl. ¶ 5, ECF No. 1; see also Pl.'s Mem. Supp. Pl.'s Mot. Summ. J. on Electronic Prod. of Requested Records (“Pl.'s Mem.”) at 2, ECF No. 9. Pending before the Court are five motions, none of which address the ultimate issue of whether the documents requested by the plaintiff must be released under the FOIA: (1) the parties' cross-motions for Summary Judgment on Electronic Production of Requested Records, Pl.'s Mot. Summ. J. on Electronic Prod. of Requested Records (“Pl.'s Mot.), ECF No. 9; Def.'s Cross Mot. Summ. J. on Electronic Prod. of Records (“Def.'s Cross–Mot.”), ECF No. 27; (2) the plaintiff's Motion for Discovery and/or an Evidentiary Hearing ( ), ECF No. 9; and (3) the parties' cross-motions for partial summary judgment regarding the defendant's fee waiver denial, Pl's Mot. Part. Summ. J. Re: Def.'s Fee Waiver Denial (“Pl.'s Fee Waiver Mot.”), ECF No. 22; Def.'s Cross Mot. Part. Summ. J. Re: Fee Waiver Denial (“Def.'s Fee Waiver Cross–Mot.”), ECF No. 31. For the reasons set forth below, the four cross-motions for summary judgment are denied and the plaintiff's motion for discovery is granted.
The instant dispute centers on whether the defendant must provide records in an electronic format, as requested by the plaintiff, pursuant to 5 U.S.C. § 552(a)(3)(B). The defendant's position is that it “does not have the capability or the capacity to readily produce records requested under the FOIA, the Privacy Act, or the Mandatory Declassification Review program in an unclassified electronic format.” Decl. of Martha T. Lutz, Chief, Litigation Support Unit, CIA (Jul. 17, 2013), (“1st Lutz Decl.”) ¶ 5, ECF No. 14–3. In essence, the defendant argues that it is de facto exempt from the requirements of 5 U.S.C. § 552(a)(3)(B) to provide records in the format sought by the requester if the requester seeks records electronically since, due to the defendant's security procedures, the production of records in such a format “would be prohibitively time consuming and costly.” See id. Instead, the method the defendant proposes to fulfill the plaintiff's FOIA request is to release over 19,000 pages of paper printouts, even though this very method was singled out by Congress as an example of an archaic system out of step with the times nearly twenty years ago with passage of the Electronic Freedom of Information Act Amendments of 1996, Pub. L. No. 104–231, 110 Stat. 3048 (codified at 5 U.S.C. § 552 (Supp. II 1996) (“E–FOIA Amendments”). See 142 Cong. Rec. H10450 (Sept. 17, 1996) (statement of Rep. Tate) (“[M]any agencies have not responded to the needs of a public that has already moved into the information age—continuing to focus on answering with volumes of paper rather than with CD–ROM's [sic] or computer disks.”); see also 142 Cong. Rec. H10449 (daily ed. Sept. 17, 1996) (statement of Rep. Horn referring to Rep. Tate as “prime author” of E-FOIA Amendments in House of Representatives).
The plaintiff, as a long time employee of the defendant with over twenty-three years of experience in the intelligence community, disputes the defendant's assertions and indicates that he has substantial personal knowledge of the inner workings, procedures, and technical capabilities of the defendant. See Part I.A. infra. Based upon this purported knowledge, the plaintiff has challenged a myriad of factual allegations presented by the defendant and the defendant, in turn, has made efforts to discount, dismiss, or refute factual assertions made by the plaintiff. Out of this miasma of disputed facts, both parties, nevertheless, assert that summary judgment may be appropriately granted in either the plaintiff or the defendant's favor. Set out below is a summary, first, of the plaintiff's attested experience and personal knowledge, which prompted him to make the FOIA requests at issue in this litigation, and second, the procedural history of the instant matter.
The plaintiff does not detail the precise dates when he worked as an employee of the defendant, but indicates that after he began his career with the defendant at an indeterminate date in the past, he was selected for the defendant's “Career Trainee program,” which the plaintiff describes as a one year program that serves as the defendant's “version of Officer Candidate School.” Decl. of Jeffrey Scudder (Aug 25, 2013) (“2d Scudder Decl.”) ¶ 8, ECF No. 21–1. As part of the program, the plaintiff attests that he “spent time with every office in the Directorate” of Administration, “followed by positions in the office of the Deputy Director of Administration, field assignments as a support officer, and finally as a management generalist officer in the Directorate [of Administration] supporting management as needed anywhere.” Id. The plaintiff notes that one of his “last assignments involved being asked by the Director of Support to sit on a working group to review efficiency in the Directorate [of Administration] and advise on how to develop, deploy, and utilize better business metrics to improve operations.” Id. The plaintiff asserts that, from 2004 through 2006, he worked as the “project manager for the FBI's Investigative Data Warehouse,” which was “one of the largest and most successful of the Bureau's post–9/11 efforts and was touted as one of its major successes.” See id. ¶¶ 4–5. In 2006, the plaintiff states that he returned to work for the defendant and “was immediately put in charge of the Architecture and System Engineering staff supporting the National Clandestine Service (“NCS”).” Id. ¶ 5. From 2007 through 2009, the plaintiff states that he worked “in Information Security for the Counter Intelligence Center ... [and] spent two years working in Information Management Systems (“IMS”)” for the defendant. Decl. of Jeffrey Scudder (May 22, 2013) (“1st Scudder Decl.”) ¶ 2, ECF No. 9–1. In 2012, the plaintiff “received permission from [the defendant] to engage in outside activities/employment and [he] was hired by the largest credit union in the world to manage security threats and remediation in their [sic] IT environment, which includes managing an $85 million dollar data warehouse project.” 2d Scudder Decl. ¶ 5.
The plaintiff claims that his work in the defendant's IMS component gave him “a deep knowledge of the CIA's Automated Declassification and Release Environment (“CADRE”) system, which is what the [defendant's] FOIA office uses.” 1st Scudder Decl. ¶ 2. In addition to being an end user of the CADRE system, the plaintiff “worked with the CACI system engineers who designed CADRE and [he] spent considerable time testing its capabilities.” Id. ¶ 3. While working at IMS, the plaintiff “received two Exceptional Performance Awards and a Meritorious Unit Citation.” Id.
In one of the multiple information technology positions he held with the defendant, the plaintiff worked for the defendant's Historic Collections Division (“HCD”), a division of IMS, which “review[s] and manually redact[s] classified material for releases to the public.” Id. ¶ 7. It was while employed in this capacity that the plaintiff discovered “three document projects that had been ready for release to the public for a decade but for some reason had never been” released, specifically, SII articles. See id. The plaintiff states he began his own investigation as to why these articles, totaling over 10,000 pages of records, id. ¶ 9, were never released and eventually “learned an interesting story,” id. ¶ 7. The plaintiff alleges that an internal dispute between different departments within the defendant prevented the release of these documents to the National Archives and Records Administration (“NARA”). See id. ¶¶ 8–9.
According to the plaintiff, “many years” before he filed the FOIA requests in dispute, “the director of [the defendant's] Center for the Study of Intelligence (“CSI”) forwarded a number of Studies in Intelligence articles to IMS for review prior to release.” Id. ¶ 8. In the face of apparent inaction, the plaintiff asserts that “the CSI Director approved the release of the articles to [NARA] on his own authority.” Id. The plaintiff alleges that subsequent to this decision, “IMS leadership ... went to CIO/Legal to ascertain whether the documents could be pulled back from NARA, which the [defendant] is authorized to do but has rarely[,] if ever[,] done.” Id. The plaintiff states that IMS' purported rationale was that “the articles contained classified material but CIO/Legal only noted that the [SII ] articles should contain a disclaimer stating that they were not government work product but personal opinion pieces.” Id. ¶ 9.
After receiving this legal advice, which apparently lent support to the decision of the CSI Director to release the SII articles to NARA, the plaintiff alleges that “an internal office ‘feud’ developed and IMS refused to release any more material from [SII ] articles.” Id. The plaintiff was “taken aback by this [decision,] as the American taxpayers had already paid for all the work to scan, redact, and review over 10,000 pages of material and this was exactly the type of information HCD was suppose[d] to release to the public.” Id. In the course of his investigation, the plaintiff also alleges that he “discovered that ... CSI paid to have every published [SII ] ar...
To continue reading
Request your trial