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eed52ec3-f654-4055-9c2a-1a2afba424bb | . The CIA also “encourage[d] [NSC] to refine the scope of [its] request (such as including a narrower time frame 18 for, and more specific descriptions of, the information you seek) to enable [the CIA] to conduct a reasonable search for responsive information.” Id. In Count Nine of No. 11-444, the plaintiff contends that the CIA improperly refused to process this May 13, 2010 FOIA request | National_Security_Counselors_2013-08-15.txt |
756a9440-632d-4890-821d-851e6d38ed34 | . See 444 FAC ¶–50; Pl.’s First 444 Opp’n at 16–18. 6. Count Eight in No. 11-444: July 5, 2010 FOIA Request to the CIA On July 5, 2010, the plaintiff submitted a FOIA request to the CIA for “a record that would indicate the ten individuals responsible for the most FOIA requests submitted (each) in Fiscal Years 2008, 2009, and 2010.” See First Lutz Decl. Ex. K at 1, No. 11-444, ECF No. 20-2 | National_Security_Counselors_2013-08-15.txt |
f6e47e06-dc01-411a-ae72-ddc1f0b41991 | . “In other words,” the plaintiff continued, “we seek a list, index, printout, or similar document from which we could determine which individual submitted the most FOIA requests each year, which individual submitted the second most FOIA requests each year, and so forth down to the tenth most prolific requester.” Id | National_Security_Counselors_2013-08-15.txt |
3bff8494-c8e0-4d42-8c55-05c306cf8b8d | . In addition to (1) an index of the ten most prolific FOIA requesters, the plaintiff also proposed to the CIA three alternative means by which to obtain the same information: (2) “[a]n index including all requesters for each year,” (3) “FOIA request letters from the ten most prolific requesters for each year,” or (4) “[a]ll FOIA request letters submitted to the CIA for each year.” Id. at 1–2 | National_Security_Counselors_2013-08-15.txt |
21afc824-ef88-4d85-b6d7-24f7d05c9673 | . On July 22, 2010, the CIA responded to this request, stating “[w]e . . . have determined that our record systems are not configured in a way that would allow us to perform a search reasonably calculated to lead to the responsive record without an unreasonable effort.” First Lutz Decl. Ex. L at 1, No. 11-444, ECF No. 20-3 | National_Security_Counselors_2013-08-15.txt |
dea21298-de24-41f1-a2c7-ee6ad4eab5ed | . As a result, the CIA informed the plaintiff “we must decline to process this request.” Id. On February 29, 2012, however, “the CIA advised plaintiff that it reconsidered [the July 5, 2010 FOIA request],” and “advised that it could process plaintiff’s fourth option, i.e., all FOIA requests submitted to the Agency for each of the three requested years, in paper form.” Decl. of Martha M. Lutz (Mar | National_Security_Counselors_2013-08-15.txt |
a002d39a-ecc3-4cbd-9be0-fadcb4aa759d | . 18, 2013) (“Seventh Lutz Decl.”) , No. 11-444, ECF No. 43-1. The 19 CIA also “determined that NSC constituted an ‘all other’ requester for fee category purposes and stated that . . . plaintiff would be required to pay the duplication costs associated with processing the request, which were estimated to exceed $950.” Id | National_Security_Counselors_2013-08-15.txt |
2c9b0486-cfce-494f-9cb8-b13fd61ce82f | . In connection with these duplication costs, “[t]he Agency advised plaintiff that a commitment to pay fees and an advance payment of $250 were required ‘prior to the processing of [its] request.’” Id. (emphasis in original). Finally, the CIA’s letter stated that “if the Agency did not received the fee commitment and advance payment within 45 days it would administratively close the request.” Id | National_Security_Counselors_2013-08-15.txt |
6268d602-9fb3-4822-8ad5-6394f1a6a9c8 | . NSC never provided a fee commitment or an advance payment, and therefore the CIA closed the request. Id. In Count Eight of No. 11-444, the plaintiff challenges the CIA’s refusal “to produce the record requested as ‘option 2’ in NSC’s request,” i.e., “an index including all requesters for each year.” See Pl.’s Opp’n to Def.’s Mot. Summ. J. on Counts Eight & Twenty-One (“Pl | National_Security_Counselors_2013-08-15.txt |
e9c42ecc-5949-4da8-980a-af9d512a6339 | .’s Second 444 Opp’n”) at 3- 4, No. 11-444, ECF No. 46; see also 444 FAC ¶–45. 7. Count One in No | National_Security_Counselors_2013-08-15.txt |
cb26ba10-7258-48b7-8e2d-c4393bd81bbf | . 11-444: August 8, 2010 FOIA Requests to the CIA By letters dated August 8, 2010, the plaintiff submitted four FOIA requests to the CIA, seeking “a database listing of all the FOIA requesters from FY 2008–present that [the CIA has] classified as” either “educational or scientific,” “commercial,” “all other,” or “news media.” See First Lutz Decl. Exs. A–D, No. 11-444, ECF No. 20-2 | National_Security_Counselors_2013-08-15.txt |
5c434160-5a4e-40c6-8772-b0686924027f | . Each request sought a database listing as to each of the four fee requester categories. See id. By letters dated September 30, 2010, the CIA refused to process these requests, stating that “[t]he FOIA does not require federal agencies to create a record, collect information, conduct research, or analyze data.” See First Lutz Decl. Exs. E–H, No. 11-444, ECF No. 20-2 | National_Security_Counselors_2013-08-15.txt |
3b37003f-3ec7-477e-8f82-69b44c3c07e8 | . By facsimile dated October 2, 2010, the plaintiff administratively appealed the CIA’s refusal to process these four FOIA requests, contending “the CIA has already tacitly admitted that it possesses the ability to sort its FOIA database by requester category, as evidenced by the publication in its FOIA Electronic Reading Room of the 20 FY 2003 ‘commercial’ requesters.” See First Lutz Decl. Ex | National_Security_Counselors_2013-08-15.txt |
740afe76-6449-42e3-8f31-efb758a7c9b6 | . I at 1, No. 11-444, ECF No. 20-2. The CIA responded on October 21, 2010, stating for each of the four FOIA requests that, “since we did not provide you with appeal rights, we cannot accept your appeal.” First Lutz Decl. Ex. J, No. 11-444, ECF No. 20-2. In Count One of No. 11-444, the plaintiff challenges the CIA’s refusal to process its August 8, 2010 FOIA requests. See 444 FAC ¶–10; Pl | National_Security_Counselors_2013-08-15.txt |
3e333cb8-96d8-4d5b-b568-111295525ce3 | .’s First 444 Opp’n at 10–14. C. 2011 FOIA Requests 1. Count Eighteen in No | National_Security_Counselors_2013-08-15.txt |
fd59e255-9311-4b48-9d84-22d55debf9eb | . 11-444: January 26, 2011 FOIA Request to the CIA By letter dated January 26, 2011, the plaintiff submitted a FOIA request to the CIA seeking “a copy of all [CIA] records pertaining to the search tools and indices available to the Office of Information Management Services (‘IMS’) for conducting searches of its own records in response to FOIA requests.” See First Lutz Decl. Ex. Q at 1, No | National_Security_Counselors_2013-08-15.txt |
b642dd40-a9fc-4815-9eed-8ee71a814129 | . 11-444, ECF No. 20-3. The plaintiff clarified later in this request that it was seeking “records that describe or discuss the search tools and indices that the IMS (as a CIA component) can choose between when devising a search strategy for IMS records.” Id | National_Security_Counselors_2013-08-15.txt |
13125dc6-8ad0-4556-a5c5-3a15a498eedc | . The plaintiff further specified that the request was “limited to only those search tools and indices that would be personally used by IMS personnel to search IMS records systems.” Id. Finally, the plaintiff specified two categories of records that would be responsive to the request: (1) “Records which describe the search tools and indices,” and (2) “The actual contents of the indices.” Id | National_Security_Counselors_2013-08-15.txt |
416832b9-e206-4f14-afd3-df365b07951f | . On May 26, 2011, the CIA provided a final response to the plaintiff’s request. See First Lutz Decl. Ex. S, No. 11-444, ECF No. 20-3. The CIA located three documents responsive to the plaintiff’s request, one of which it released in full, and two of which it released in part, with redactions made pursuant to FOIA Exemption 3. See id. In Count Eighteen of No | National_Security_Counselors_2013-08-15.txt |
52f4e6e1-f5be-4a20-a4df-709773c03bcc | . 11-444, the plaintiff challenges three aspects of the CIA’s response to the 21 plaintiff’s January 26, 2011 FOIA request: (1) the decision to withhold information under FOIA Exemption 3; (2) the adequacy of the CIA’s search efforts; and (3) the failure of the CIA to release responsive records in an electronic format, as requested. See 444 FAC ¶–98; Pl.’s First 444 Opp’n at 24–26, 35–40. 2 | National_Security_Counselors_2013-08-15.txt |
70695426-2223-4f20-98dc-888170d5c4e6 | . Count Thirteen in No. 11-445: February 11, 2011 FOIA Request to the CIA On February 11, 2011, the plaintiff submitted a FOIA request to the CIA, which sought “all [CIA] records associated with the administrative processing of [two specific FOIA requests], which were referred to the CIA by the Federal Bureau of Investigation.” See Third Lutz Decl. Ex. I at 1, No. 11-445, ECF No. 52-1 | National_Security_Counselors_2013-08-15.txt |
9c4457b2-a1e0-4d00-9bb4-82a7b2bbbf04 | . On October 7, 2011, the CIA provided a final response to this request, releasing two responsive records in part, with redactions made pursuant to FOIA Exemption 3, and withholding seven responsive records in full pursuant to FOIA Exemptions 3 and 5. See Third Lutz Decl. ; Third Lutz Decl. Ex. J at 1, No. 11-445, ECF No. 52-1. In Count Thirteen of No | National_Security_Counselors_2013-08-15.txt |
bce0afa3-6912-4efa-b397-49726a0fe575 | . 11-445, the plaintiff challenges the CIA’s decision to withhold responsive information pursuant to FOIA Exemptions 3 and 5. See 445 FAC ¶–92; Defs.’ First 445 Mem. at 10-11. 3. Count Ten in No | National_Security_Counselors_2013-08-15.txt |
1d4b9f07-9902-4d16-943f-cc3c7548df2b | . 11-444: February 16, 2011 FOIA Request to the CIA Finally, by letter dated February 16, 2011, the plaintiff submitted a FOIA request to the CIA, seeking “a copy of all [CIA] records pertaining to the IBM supercomputer ‘Watson.’” First Lutz Decl. Ex. O at 1, No. 11-444, ECF No. 20-3 | National_Security_Counselors_2013-08-15.txt |
194c28ef-2a8f-48fb-87fa-c2ce0807718e | . On March 2, 2011, the CIA responded to the plaintiff that “[w]e cannot accept your FOIA request in its current form because it would require the Agency to perform an unreasonably burdensome search.” See First Lutz Decl. Ex. P, No. 11- 444, ECF No. 20-3 | National_Security_Counselors_2013-08-15.txt |
d0fbe036-f8a9-465a-9666-0d667bc11f5e | . Citing “the breadth and lack of specificity of [the plaintiff’s] request” and “the way in which [the CIA’s] records systems are configured,” the CIA concluded that “the 22 Agency cannot conduct a reasonable search for information responsive to your request.” Id | National_Security_Counselors_2013-08-15.txt |
d8e3e8ec-d68f-4cc8-b0b3-5aa0831f6569 | . The CIA “encourage[d] [the plaintiff] to refine the scope of [its] request (such as contracts, if they exist, which would explain records pertaining to ‘Watson’) to enable [the CIA] to conduct a reasonable search for responsive information.” Id. In Count Ten of No. 11-444, the plaintiff challenges the CIA’s refusal to process it February 16, 2011 FOIA request. See 444 FAC ¶– 55; Pl | National_Security_Counselors_2013-08-15.txt |
3ae5e9af-3d8c-4f2f-88fc-efcb59d6d8fe | .’s First 444 Opp’n at 19–24. D. Facts Related to the Plaintiff’s Motion for Sanctions In December 2011, an unidentified third party provided the plaintiff’s counsel with two CIA documents, which counsel concluded may contain classified information. See Pl.’s Mot. to Compel Production (“Pl.’s First Mot. to Compel”) at 1, No. 11-443, ECF No. 26 | National_Security_Counselors_2013-08-15.txt |
55397aa3-d510-43d5-a8ab-33f8d02e791f | . Since the documents were ostensibly relevant to the plaintiff’s claim in Count Three of No. 11-443, challenging the CIA’s withholding of responsive information from tables of contents for the CIA’s in-house journal Studies in Intelligence, see supra Part I.B.4, plaintiff’s counsel contacted government counsel for the CIA, who referred plaintiff’s counsel to the FBI. See Pl.’s First Mot | National_Security_Counselors_2013-08-15.txt |
e4bef8ab-0206-4d71-bb50-d9c6067aff76 | . to Compel at 1. In January 2012, an FBI field agent met with plaintiff’s counsel, at which time plaintiff’s counsel signed a non-disclosure agreement as to any classified material contained in the two CIA documents and also turned over paper and electronic versions of the two records to the FBI. See id. at 2 | National_Security_Counselors_2013-08-15.txt |
d0ba0c58-b7e3-4ae0-9dd2-bf35a4727f4e | . In that meeting, plaintiff’s counsel requested that the FBI return to him redacted versions of the two documents, with all classified information deleted. Id. In a later meeting held in June 2012, the FBI informed plaintiff’s counsel that they would not be releasing redacted versions of the documents to him. See id | National_Security_Counselors_2013-08-15.txt |
37ba5388-28af-4214-9b45-3f389e0340cf | . Since plaintiff’s counsel wished to submit the non-classified portions of the two documents to the Court, the plaintiff filed a motion on August 3, 2012 to compel the CIA to “provid[e] [plaintiff’s counsel] with redacted copies” of the two documents in question. See id. at 4 | National_Security_Counselors_2013-08-15.txt |
499d81c4-ee2f-4cf1-9993-c22d7d7a90fb | . The CIA opposed the relief sought by the plaintiff, 23 contending that “[plaintiff’s counsel’s] alleged interactions with the FBI are well outside the scope of this action” since “[t]he FBI is not a party to this case” and “the FBI’s interactions were with [plaintiff’s counsel] in his individual capacity.” Def.’s Opp’n to Pl.’s Mot. to Compel at 1– 2, No. 11-443, ECF No. 28 | National_Security_Counselors_2013-08-15.txt |
0d35e86c-c240-49be-b046-049054c6a97e | . On August 15, 2012, the Court granted the plaintiff’s motion to compel over the CIA’s objection and directed the CIA to provide the plaintiff “a copy of each of the two CIA documents referenced in the plaintiff’s motion, if possible, with all classified information redacted therefrom.” See Minute Order dated Aug. 15, 2012, No. 11-443 | National_Security_Counselors_2013-08-15.txt |
8300c2c5-a4e1-419a-89d3-043d2a91096a | . On September 3, 2012, the plaintiff filed a motion, asking the Court “to compel CIA to comply with [the Court’s] earlier Order.” See Pl.’s Mot. to Compel Compliance with Court’s 15 Aug. 2012 Order (“Pl.’s Second Mot. to Compel”) at 2, No. 11-443, ECF No. 31 | National_Security_Counselors_2013-08-15.txt |
7c9b4bf1-bb02-4db1-8c4b-38fef82a2fa2 | . In that motion, the plaintiff stated that “[i]nstead of redacting only the classified information,” the CIA “redacted all information it considered exempt under [FOIA] Exemptions (b)(1) and/or (b)(3).” Id. at 1–2. Therefore, the plaintiff asked the Court to order the CIA to produce “copies of these records with only the classified information redacted, as the Court ordered.” Id. at 2 | National_Security_Counselors_2013-08-15.txt |
2070b979-b185-4339-a377-29c745d0aba0 | . On September 21, 2012, the Court granted the plaintiff’s motion in part and ordered the CIA to produce redacted versions of the two documents to the plaintiff, clearly indicating on each document which portions of the document were classified—and therefore redacted pursuant to FOIA Exemption 1—and which portions were redacted pursuant to FOIA Exemption 3. See Order dated Sept. 21, 2012 | National_Security_Counselors_2013-08-15.txt |
c9d36db5-7c6b-45a7-96df-c53325126b67 | . The Court did not order the CIA to release any information from these two documents that the CIA believed were protected from disclosure by the CIA Act or by Executive Order 13,525 as classified in the interest of national security | National_Security_Counselors_2013-08-15.txt |
b2a96cc0-4f04-4ca3-88ec-508cb7e59e31 | . 24 The CIA produced redacted versions of the two documents as instructed, yet the parties continued to disagree about whether the CIA had complied with the Court’s Order. See Joint Status Report at 1, No. 11-443, ECF No. 35 | National_Security_Counselors_2013-08-15.txt |
4921062c-56ab-41e8-8ea8-59bcde958592 | . Specifically, the plaintiff complained, on September 3, 2012, that the CIA had marked certain information as being exempt under Exemption 3, which the CIA’s Vaughn index had stated was classified, and vice-versa. See id. at 2–3. Plaintiff’s counsel had notified the CIA’s counsel of this inconsistency in an e-mail five days before the plaintiff brought the issue to the attention of the Court | National_Security_Counselors_2013-08-15.txt |
811fe57b-6a45-4a73-820c-06ff98cfff6c | . See Pl.’s Reply to Opp. To Mot. To Compel Ex. D, No. 11-443, ECF No. 33-2 (Aug. 29, 2012 e-mail from plaintiff’s counsel to CIA’s counsel stating “I think you must have [the classified material and the CIA Act redactions] backwards”). The CIA, however, maintained that “[t]he documents the CIA produced in response to the Court’s order reflect the current status of the information they contain | National_Security_Counselors_2013-08-15.txt |
8562b949-a10e-4217-b9b3-818b6e527509 | .” See Joint Status Report at 2. In light of the apparent discrepancy, the plaintiff once again asked for relief, seeking an order directing the CIA “to take whatever steps are necessary to make its redactions in these releases consistent with its previous presentations to the Court.” Id. at 4. To resolve this ongoing dispute, the Court held a status conference on October 12, 2012 | National_Security_Counselors_2013-08-15.txt |
bec63eb2-6a6f-42fd-b180-9330c64731a9 | . At that status conference, plaintiff’s counsel once again asserted that the CIA had gotten the two categories of redactions “backwards.” See Tr. of Status Conference (Oct. 12, 2012) at 13:1–2, No. 11-443, ECF No. 69; see also id. at 16:9–12 (“[E]verything that is listed as classified in the documents is listed as unclassified [in the Vaughn index] | National_Security_Counselors_2013-08-15.txt |
2586a4d6-8239-4b8a-b62c-ad2a6806ea29 | . It looks like it was a simple administrative error.”). The CIA’s counsel, however, maintained once again that “we’ve clearly identified for [plaintiff’s counsel] in our Vaughn index and in the two documents that we produced pursuant to the Court’s order exactly what’s classified and what’s subject to the CIA 25 Act.” Id. at 19:15–19 | National_Security_Counselors_2013-08-15.txt |
369c289a-3acc-4e75-8a2b-6f95002ac3c9 | . The Court asked the CIA’s counsel in this regard: “Do you need to update your Vaughn index?” to which he replied “I need to check with my client agency, but I don’t believe so.” Id. at 26:18–21 | National_Security_Counselors_2013-08-15.txt |
3f871967-4ac5-488b-a088-22e53a68d2c8 | . The Court further stated, “[a]s officers of the court, if [the CIA’s lawyers] find out that some information that’s been presented is incorrect, they have an ongoing and continuing obligation to correct themselves.” Id. at 26:1–4 | National_Security_Counselors_2013-08-15.txt |
edccbacf-b15e-4dea-ab83-3ea8359ac0db | . Following the October 12, 2012 status conference, and based on CIA counsel’s representations that the redactions were correctly designated, the Court entered a minute order stating that “the plaintiff is entitled to rely on the designations of information in the two . . | National_Security_Counselors_2013-08-15.txt |
42a5dfeb-bfea-401d-b508-92553b419e6f | . indices at issue, as provided by the defendant, regarding whether redacted information in those documents is either classified or subject to protection under the CIA Act.” Minute Order dated Oct. 12, 2012, No. 11-443 | National_Security_Counselors_2013-08-15.txt |
334a7b6b-4e0b-487a-a71f-9e44a14b43e6 | . On October 22, 2012, the CIA submitted a notice to the Court, stating that “[i]n [the CIA’s] earlier production, redactions were marked with either a ‘1’ or ‘2,’ which appears to have created some confusion as to whether the redacted information was withheld because it is classified, subject to the CIA Act, or both.” See Notice at 1, No. 11-443, ECF No. 40 | National_Security_Counselors_2013-08-15.txt |
55326003-312a-45b8-92f3-617945a4c6ca | . Thus, ostensibly “[i]n order to clarify the issue and provide Plaintiff’s counsel with clear documents upon which he can rely . . . [the CIA] now produced copies of the two records with each redaction marked clearly as ‘Classified’ or ‘CIA Act’ protected.” Id. The CIA stated that it was “hopeful the updated marking will resolve any lingering confusion.” Id. at 1 | National_Security_Counselors_2013-08-15.txt |
839ba86b-4abe-44cc-a29d-8a822f70a03d | . In the versions of the two documents attached to the CIA’s October 22, 2012 notice, however, the CIA had reversed its designations, as compared to its September 27, 2012 filing. Compare ECF Nos. 35- 1, 35-2, with ECF Nos. 40-1, 40-2 | National_Security_Counselors_2013-08-15.txt |
e35552c6-2a96-4ce0-9ce3-6aa59e2917af | . The CIA’s notice did now acknowledge that its previous representations had been in error but, just as plaintiff’s counsel had warned two months earlier, 26 information that had earlier been marked as classified was now marked as withheld under the CIA Act, and vice-versa. See id | National_Security_Counselors_2013-08-15.txt |
94b8b985-7ef7-400b-baf8-eb9b8a171284 | . As a result, the plaintiff filed a motion for sanctions against the CIA, contending that the CIA had “engaged in an extended campaign of misrepresentation to both [the plaintiff] and the Court regarding the nature of the information it redacted from the two documents at issue.” See Pl.’s Mot. for Sanctions at 1, No. 11-443, ECF No. 50 | National_Security_Counselors_2013-08-15.txt |
3ffe2206-196c-4c76-a8e4-e170042df1ec | . The CIA opposed the motion and submitted, at the Court’s direction, two sworn declarations explaining what had caused the CIA mistakenly for weeks to defend the accuracy of its designations. Specifically, the CIA’s chief of its Litigation Support Unit, Martha Lutz, stated that the CIA’s error “was the product of internal miscommunication rather than bad faith.” See Decl. of Martha M. Lutz (Feb | National_Security_Counselors_2013-08-15.txt |
ba2517ef-e9ef-499b-891b-0d4556712dd7 | . 25, 2013) (“Sixth Lutz Decl.”) , No. 11-443, ECF No. 61-1. Ms. Lutz explained that, when the CIA’s information review officer (“IRO”) reviewed the two documents in question, she used a notation system in which she wrote “(b)(3) methods” in the margins of the documents next to certain redacted information. See id. | National_Security_Counselors_2013-08-15.txt |
fcfb322d-7697-4a91-83bb-20ed823aad8d | . These notations were intended to convey that the specified redactions were protected under the National Security Act as classified intelligence sources or methods—and thus also protected by FOIA Exemption 1 as classified information—but the CIA’s counsel “interpreted this notation system to mean that redactions marked . . | National_Security_Counselors_2013-08-15.txt |
e5d48ff8-c895-41c3-abf8-5ff9b0b10232 | . as ‘(b)(3) methods’ were those protected by FOIA Exemption (b)(3)” under the CIA Act. See id. ¶–8. “Based on this misunderstanding, the CIA attorney incorrectly cited some of the justifications for redacting the material to the DOJ attorney, who in turn shared that information with plaintiff.” Id. . E | National_Security_Counselors_2013-08-15.txt |
aa656d72-9ebe-4cbb-9e88-d93f3781d9ad | . Procedural History The plaintiff filed the Complaints in each of these three actions on February 28, 2011, and, shortly thereafter, filed a First Amended Complaint in Nos. 11-444 and 11-445 on March 27 21, 2011. On May 20, May 27, and June 3, 2011, the CIA filed partial motions to dismiss in No. 11-443, 11-444, and 11-445, respectively | National_Security_Counselors_2013-08-15.txt |
7c4aadf3-4027-4cc6-8441-590fcc5e271f | . These three motions, filed pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), collectively moved for dismissal of twenty-five of the forty-five claims originally alleged by the plaintiff, and the motions became ripe on July 21, 2011 | National_Security_Counselors_2013-08-15.txt |
24c9b033-fb9d-41d3-85e7-3f117782533e | . While these three motions to dismiss were pending, the Court ruled on ten other, non- dispositive motions, including motions to stay, to compel, and to bifurcate. On October 17, 2012, in a lengthy opinion, the Court granted in part and denied in part the CIA’ three partial motions to dismiss. See NSC I, 898 F. Supp. 2d 233 | National_Security_Counselors_2013-08-15.txt |
bb3c24f1-3aae-48be-a485-aebc2bc04d6d | . Specifically, the Court dismissed all but three of the plaintiff’s twenty-four policy-or-practice claims—including all of the plaintiff’s claims under the Mandamus Act and the Administrative Procedure Act. See id. at 290 | National_Security_Counselors_2013-08-15.txt |
689d9f50-be77-4b99-bd07-96bd538450b1 | . In addition to denying the government’s motion to dismiss with respect to three of the plaintiff’s policy-or-practice claims (the Assignment of Rights Policy, the Cut-Off Date Policy, and Document-Level Exemption Policy), the Court also denied the government’s motion to dismiss with respect to Count One in No | National_Security_Counselors_2013-08-15.txt |
a9171396-7f34-4c09-b06c-b49ed5deaea0 | . 11-443, which challenged the CIA’s refusal to process a FOIA request that was assigned to the plaintiff by an organization called the James Madison Project. See id. at 290–91. On March 21, 2013, this Court stayed all three actions until all dispositive motions were fully briefed | National_Security_Counselors_2013-08-15.txt |
61c330af-c880-4913-a7a1-b61cbf21b201 | . Between December 20, 2011 and May 17, 2013, a total of eight motions or cross- motions for summary judgment were filed across these three related actions by all parties. The last of these motions became ripe on June 11, 2013. Additionally, on November 21, 2012, the plaintiff filed a motion for leave to file a second amended complaint in No | National_Security_Counselors_2013-08-15.txt |
a1bcdf3e-b817-4af4-870f-476478d7694b | . 11-445, and on January 11, 2013, the plaintiff filed a motion for sanctions in No. 11-443. Thus, currently pending before the Court in these related actions are ten motions: eight motions or cross-motions 28 for summary judgment, one motion for leave to file a second amended complaint, and one motion for sanctions | National_Security_Counselors_2013-08-15.txt |
8eedceaa-25ce-447a-b733-3a304fae1855 | . For the reasons discussed below, the Court grants in part and denies in part the defendants’ six motions for summary judgment, grants the plaintiff’s cross-motions for summary judgment, denies the plaintiff’s motion for leave to file a second amended complaint, and denies the plaintiff’s motion for sanctions.10 II. LEGAL STANDARDS A. FOIA Congress enacted the FOIA, 5 U.S.C | National_Security_Counselors_2013-08-15.txt |
00cb885c-e9e9-4eb6-bf8b-556f88cb628f | . § 552, “‘to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny.’” Am. Civil Liberties Union v. U.S. Dep’t of Justice, 655 F.3d 1, 5 (D.C. Cir. 2011) (quoting Dep’t of the Air Force v. Rose, 425 U.S. 352, 361 (1976)). The Supreme Court has explained that the FOIA is “a means for citizens to know ‘what their Government is up to | National_Security_Counselors_2013-08-15.txt |
244bbfba-07fc-4026-9f98-f906a6268bf3 | .’ This phrase should not be dismissed as a convenient formalism. It defines a structural necessity in a real democracy.” Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157, 171–172 (2004) (citation and internal quotation marks omitted) | National_Security_Counselors_2013-08-15.txt |
5c930af7-9470-4661-9ae0-964bbab249c8 | . “The basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978). As a result, the FOIA requires federal agencies to release all records responsive to a request for production. See 5 U.S.C | National_Security_Counselors_2013-08-15.txt |
674695b1-5aa4-45a2-8fd2-17b5dd64b1a0 | . § 552(a)(3)(A). Federal courts are authorized under the FOIA “to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant.” Id. § 552(a)(4)(B). 10 In support or opposition to these ten pending motions, the six agency defendants have collectively submitted a total of nineteen sworn declarations | National_Security_Counselors_2013-08-15.txt |
2c6189ef-c97d-4798-a7f2-f5e0caca9f1a | . These include eleven declarations from the CIA (including eight separate declarations authored by Martha M. Lutz), three declarations from the State Department, two declarations from the DIA, and one declaration each from the DOJ, ODNI, and NSA | National_Security_Counselors_2013-08-15.txt |
1870193b-a08e-4e85-a8dd-679b806b1219 | . 29 This strong interest in transparency must be tempered, however, by the “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 omitted); see also Critical Mass Energy Project v. Nuclear Regulatory Comm’n, 975 F.2d 871, 872 (D.C. Cir | National_Security_Counselors_2013-08-15.txt |
db30d62c-73d1-4661-a3d0-b59d33f541cb | . 1992) (en banc). Accordingly, Congress included nine exemptions permitting agencies to withhold information from FOIA disclosure. See 5 U.S.C. § 552(b). “These exemptions are explicitly made exclusive, and must be narrowly construed.” Milner v. Dep’t of the Navy, 131 S. Ct. 1259, 1262 (2011) (citations and internal quotation marks omitted); see also Pub. Citizen, Inc. v. Office of Mgmt | National_Security_Counselors_2013-08-15.txt |
d7a73cdc-5151-4262-9828-415eaba67c0b | . & Budget, 598 F.3d 865, 869 (D.C. Cir. 2010) (“FOIA allows agencies to withhold only those documents that fall under one of nine specific exemptions, which are construed narrowly in keeping with FOIA’s presumption in favor of disclosure.” (citations omitted)) | National_Security_Counselors_2013-08-15.txt |
ac5eccd9-0a2e-48a7-ba14-3b61db2b82e6 | . When a FOIA requester properly exhausts its administrative remedies, it may file a civil action challenging an agency’s response to its request. See 5 U.S.C. § 552(a)(4)(B); Wilbur v. CIA, 355 F.3d 675, 677 (D.C. Cir. 2004). Once such an action is filed, the agency generally has the burden of demonstrating that its response to the plaintiff’s FOIA request was appropriate | National_Security_Counselors_2013-08-15.txt |
261e8f6f-3bf4-4a0c-8ee5-061f78fc48f9 | . When an agency’s response to a FOIA request is to withhold responsive records, either in whole or in part, the agency “bears the burden of proving the applicability of claimed exemptions.” Am. Civil Liberties Union v. U.S. Dep’t of Def. (“ACLU/DOD”), 628 F.3d 612, 619 (D.C. Cir. 2011) | National_Security_Counselors_2013-08-15.txt |
5c3627a1-42df-4e51-8cbb-d3a13fa385f9 | . “The government may satisfy its burden of establishing its right to withhold information from the public by submitting appropriate declarations and, where necessary, an index of the information withheld.” Am. Immigration Lawyers Ass’n v. U.S. Dep’t of Homeland Sec., 852 F. Supp. 2d 66, 72 (D.D.C. 2012) (citing Vaughn v. Rosen, 484 F.2d 820, 30 827–28 (D.C. Cir. 1973)) | National_Security_Counselors_2013-08-15.txt |
fff87952-0f20-4e33-bf83-2c1db4742f2a | . “If an agency’s affidavit describes the justifications for withholding the information with specific detail, demonstrates that the information withheld logically falls within the claimed exemption,” and “is not contradicted by contrary evidence in the record or by evidence of the agency’s bad faith, then summary judgment is warranted on the basis of the affidavit alone.” ACLU/DOD, 628 F | National_Security_Counselors_2013-08-15.txt |
ec2f7c80-2c4d-4969-a52c-1d1b7083614d | .3d at 619. “Ultimately, an agency’s justification for invoking a FOIA exemption is sufficient if it appears ‘logical or ‘plausible.’” Id. (internal quotation marks omitted) (quoting Larson v. Dep’t of State, 565 F.3d 857, 862 (D.C. Cir. 2009)). When a requester challenges an agency’s response based on the adequacy of the search performed, “[t]o prevail on summary judgment . . | National_Security_Counselors_2013-08-15.txt |
5ed6617d-b1c8-49f9-af32-3e8b92fccab5 | . the defending ‘agency must show beyond material doubt . . . that it has conducted a search reasonably calculated to uncover all relevant documents.’” Morley v. CIA, 508 F.3d 1108, 1114 (D.C. Cir. 2007) (quoting Weisberg v. U.S. Dep’t of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983)) | National_Security_Counselors_2013-08-15.txt |
1d9d505f-7bb1-4f6f-921a-48ba258d4650 | . “In order to obtain summary judgment the agency must show that it made a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested.” Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir. 1990) | National_Security_Counselors_2013-08-15.txt |
9e841a92-bcdd-4a79-adf5-79d63434d650 | . “Summary judgment may be based on affidavit, if the declaration sets forth sufficiently detailed information ‘for a court to determine if the search was adequate.’” Students Against Genocide v. Dep’t of State, 257 F.3d 828, 838 (D.C. Cir. 2001) (quoting Nation Magazine v. U.S. Customs Serv., 71 F.3d 885, 890 (D.C. Cir. 1995)). Finally, the D.C | National_Security_Counselors_2013-08-15.txt |
da0fac4a-cc47-41ef-ab2f-ce564c62bb70 | . Circuit has recognized that, separate from claims seeking relief for specific requests made under the FOIA, requesting parties may also assert a “claim that an agency policy or practice will impair the party’s lawful access to information in the future.” Payne Enters., Inc. v. United States, 837 F.2d 486, 491 (D.C. Cir. 1988) (emphasis in original); 31 accord Newport Aeronautical Sales v | National_Security_Counselors_2013-08-15.txt |
3451b4d5-e84a-4273-9f05-e36fd6e465f8 | . Dep’t of the Air Force, 684 F.3d 160, 164 (D.C. Cir. 2012). The Court in Payne held that a policy-or-practice claim is viable “[s]o long as an agency’s refusal to supply information evidences a policy or practice of delayed disclosure or some other failure to abide by the terms of the FOIA, and not merely isolated mistakes by agency officials.” Payne, 837 F.2d at 491. B | National_Security_Counselors_2013-08-15.txt |
d841d768-3a17-4e7a-ac00-a2ea92b61fc7 | . Summary Judgment “‘FOIA cases typically and appropriately are decided on motions for summary judgment.’” Georgacarakos v. FBI, 908 F. Supp. 2d 176, 180 (D.D.C. 2012) (quoting Defenders of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009)) | National_Security_Counselors_2013-08-15.txt |
b4f3e0f8-5729-4fb9-abc8-c52e9b8c787e | . With respect to the applicability of exemptions and the adequacy of an agency’s search efforts, summary judgment may be based solely on information provided in the agency’s supporting declarations. See, e.g., ACLU/DOD, 628 F.3d at 619; Students Against Genocide, 257 F.3d at 838 | National_Security_Counselors_2013-08-15.txt |
3b572dac-12a1-4cf7-8906-adace416743e | . With respect to policy-or-practice claims, the moving party must establish “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). Summary judgment is properly granted against a party who, “after adequate time for discovery and upon motion, . . | National_Security_Counselors_2013-08-15.txt |
f50658ec-2947-4507-9c52-80243b3b0323 | . fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The burden is on the moving party to demonstrate that there is an “absence of a genuine issue of material fact” in dispute. Id. at 323 | National_Security_Counselors_2013-08-15.txt |
06547e8e-e0f9-41db-aac0-b2d986ba328f | . In ruling on a motion for summary judgment, the Court must draw all justifiable inferences in favor of the nonmoving party and shall accept the nonmoving party’s evidence as true. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The Court is only required to consider the materials explicitly cited by the parties, but may on its own accord consider “other materials in the record.” FED | National_Security_Counselors_2013-08-15.txt |
eed51328-2590-49e2-b6ea-c3b9adffee21 | . R. CIV. P. 56(c)(3). For a factual dispute to be “genuine,” the 32 nonmoving party must establish more than “[t]he mere existence of a scintilla of evidence in support of [its] position,” Liberty Lobby, 477 U.S. at 252, and cannot rely on “mere allegations” or conclusory statements, see Veitch v. England, 471 F.3d 124, 134 (D.C. Cir. 2006); Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir | National_Security_Counselors_2013-08-15.txt |
3b72e102-c3e8-4ea6-b6ab-46629636b170 | . 1999); Harding v. Gray, 9 F.3d 150, 154 (D.C. Cir. 1993); accord FED. R. CIV. P. 56(e). Rather, the nonmoving party must present specific facts that would enable a reasonable jury to find in its favor. See, e.g., FED. R. CIV. P. 56(c)(1). “If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Liberty Lobby, 477 U.S | National_Security_Counselors_2013-08-15.txt |
e2ed0898-ac31-456d-a556-38b9619cd9a1 | . at 249–50 (citations omitted). C. Leave to File Amended Complaint Federal Rule of Civil Procedure 15 provides that, if more than twenty-one days have passed since the filing of an original complaint, “a party may amend its [complaint] only with the opposing party’s written consent or the court’s leave.” FED. R. CIV. P. 15(a)(2). “The court should freely give leave when justice so requires.” Id | National_Security_Counselors_2013-08-15.txt |
e589d003-dd71-49e0-b1bb-1315795effd1 | . The D.C. Circuit has held that “it is an abuse of discretion to deny leave to amend unless there is sufficient reason, such as ‘undue delay, bad faith or dilatory motive[,] repeated failure to cure deficiencies by [previous] amendments[,] or futility of amendment.” Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996) (internal quotation marks omitted) | National_Security_Counselors_2013-08-15.txt |
1e48634b-ae11-4f49-b2a1-579b1aedc09c | . In this regard, “[c]ourts will properly deny a motion to amend when it appears that the plaintiff is using Rule 15 to make the complaint a moving target, to salvage a lost case by untimely suggestion of new theories of recovery, [or] to present theories seriatim in an effort to avoid dismissal.” Minter v. Prime Equip. Co., 451 F.3d 1196, 1206 (10th Cir | National_Security_Counselors_2013-08-15.txt |
e423d3df-13e1-46ed-812f-bb8a8574bf48 | . 2006) (citations and internal quotation marks omitted). When a plaintiff seeks leave to amend its complaint in “an attempt to evade the effect of [the Court’s] Memorandum Opinion and Order dismissing the plaintiff’s claims against the moving defendants, the request will be denied.” See Kurtz v. United States, No. 10-1270, 2011 WL 2457923, at *1 n.1 (D.D.C. June 20, 2011) (citing 33 Brown v | National_Security_Counselors_2013-08-15.txt |
a3f88fe5-0edf-4f72-a63e-0aa8d60c8e4c | . FBI, 744 F. Supp. 2d 120, 123 (D.D.C. 2010)); see also Becker v. District of Columbia, 258 F.R.D. 182, 185 (D.D.C. 2009) (“Waiting to move to amend until after the close of discovery and after the filing of or ruling upon dispositive motions has been considered an undue delay.”). III. DISCUSSION A wide variety of issues have been presented to the Court in the ten motions currently pending | National_Security_Counselors_2013-08-15.txt |
dc15121f-13f3-4117-a3d3-fd48f8eae233 | . The Court will begin by explaining why it denies the plaintiff’s motion for leave to file a second amended complaint in No. 11-445. The Court will then discuss the plaintiff’s Motion for Sanctions, filed in No. 11-443. Third, the Court will address the plaintiff’s two remaining policy-or-practice claims, which challenge the CIA’s Assignment of Rights Policy and Document-Level Exemption Policy | National_Security_Counselors_2013-08-15.txt |
f71feb94-5013-41d1-8633-cf745fb49b0f | . Fourth, the Court will discuss the plaintiff’s claims relating to the adequacy of the CIA’s, the State Department’s, and the NSA’s search efforts in response to specific FOIA requests. Fifth, the Court will discuss the plaintiff’s claims regarding the CIA’s refusal to process certain FOIA requests | National_Security_Counselors_2013-08-15.txt |
3bc72ce9-2363-402d-978f-e2e2a0fc5364 | . Sixth, the Court will discuss the plaintiff’s claims regarding the defendants’ decisions to withhold certain information pursuant to FOIA Exemptions 1, 2, 3, 5, and 6. Seventh, the Court will discuss the plaintiff’s claim that the State Department and the CIA should have provided it with electronic versions of responsive records | National_Security_Counselors_2013-08-15.txt |
26c5e452-1654-46a3-bd96-1199ee5e2784 | . Finally, the Court will determine whether the defendants have satisfied their burden to produce all non-exempt, reasonably segregable material to the plaintiff. A. Motion for Leave to Amend In its motion for leave to file an amended complaint, the plaintiff seeks to make two modifications to its First Amended Complaint in No | National_Security_Counselors_2013-08-15.txt |
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