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d1b5dbfc-3b54-4971-9a6b-aad1067e2732 | ., 674 F.2d 74, 76 (D.C. Cir. 1982)). Indeed, it is curious that the CIA’s declarant attempts to justify the Assignment of Rights Policy by contending that “accepting the assignment and substituting a motivated assignee for a passive requester . . . would increase [the CIA’s] exposure to litigation.” See Decl. of Martha M. Lutz (Jan. 30, 2013) (“Fifth Lutz Decl.”) , No. 11-443, ECF No. 54-1 | National_Security_Counselors_2013-08-15.txt |
d9e445f0-ba63-4c2e-8a02-a4fd9651c823 | . All else equal, a “motivated assignee” would actually be preferred to a “passive requester,” see id., because the former would be more likely “to increase the public’s access to governmental information,” Blazy, 194 F.3d at 96, and thereby further the purpose of the FOIA | National_Security_Counselors_2013-08-15.txt |
cb5463fc-feb5-49b1-98b8-0e7cbf3dbf86 | . The CIA would have the Court believe that, due to the CIA’s policy of “‘piggyback[ing]’” a subsequent duplicative request to its corresponding initial request, the non- recognition of assignments of FOIA requests will not diminish or delay the public’s access to information. See, e.g., Fifth Lutz Decl. | National_Security_Counselors_2013-08-15.txt |
7bbc6a2c-3e52-436b-b303-2d04bf515ca7 | . Although the Court addresses this issue more fully below in discussing the CIA’s “undue burden” arguments, see infra Part III.B | National_Security_Counselors_2013-08-15.txt |
8c65f33d-3a46-4431-a68a-ee0202d82dbe | .1(c), it suffices to say that, at least in some circumstances, the refusal to recognize assignments of FOIA requests 17 The Court assumes without deciding that principles of federal common law, rather than state-law principles, would apply to whether FOIA requests are assignable | National_Security_Counselors_2013-08-15.txt |
7cab5508-c52b-4a27-a246-6c780c81361d | . Since the release of government records through the FOIA undoubtedly “touch[es] the rights and duties of the United States,” see Bank of Am. Nat’l Trust & Sav. Ass’n v. Parnell, 352 U.S. 29, 33 (1956), it therefore likely qualifies as one of the “few areas . . . involving ‘uniquely federal interests’” that requires the development of federal common law principles, see Boyle v. United Techs. Corp | National_Security_Counselors_2013-08-15.txt |
af5bc060-fd41-49eb-a39a-deee0f088989 | ., 487 U.S. 500, 504 (1988) (quoting Texas Indus., Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 640 (1981)). Cf., e.g., Cincom Sys., Inc. v. Novelis Corp., 581 F.3d 431, 436 (6th Cir. 2009) (“Federal common law governs ‘questions with respect to the assignability of a patent or copyright license.’” (quoting PPG Indus., Inc. v. Guardian Indus. Corp., 597 F.2d 1090, 1093 (6th Cir. 1979)) | National_Security_Counselors_2013-08-15.txt |
dc83b234-962d-4631-9bfc-b3d653d188c1 | . 48 will indeed diminish or delay the public’s access to information. Therefore, a categorical refusal to recognize the assignment of FOIA requests is at odds with the statute’s purpose. As to the “requester-specific provisions” of the FOIA, the CIA is correct to assert that certain rights or privileges conferred under the FOIA are non-assignable | National_Security_Counselors_2013-08-15.txt |
cb68fc25-8365-49b0-92da-c2fed84860dc | . For example, the right to (1) a public-interest fee waiver, (2) the expedited processing of a request, or (3) the release of information that implicates personal privacy, all are personal to a requester and thus cannot be assigned. See, e.g., RTC Commercial Loan Trust 1995-NP1A v. Winthrop Mgmt., 923 F. Supp. 83, 88 (E.D. Va | National_Security_Counselors_2013-08-15.txt |
724e4ce3-a7ec-4558-9b9b-f5fbba5396c1 | . 1996) (holding that “certain rights are purely personal and cannot be assigned”). Hence, the CIA is correct that these personal rights and privileges could not be assigned. The plaintiff, however, does not contend that wholesale assignment is what the FOIA requires | National_Security_Counselors_2013-08-15.txt |
ac004365-a099-4887-87f0-88e4b7c6f13f | . The plaintiff, for example, does not contend that the CIA is required to allow an assignee FOIA requester to stand in the shoes of its assignor with regard to fee status | National_Security_Counselors_2013-08-15.txt |
cb2f753b-b585-4402-8744-5a056d7c9063 | . Therefore, the CIA jabs at a straw man in contending that a requirement upon agencies to recognize the assignment of FOIA requests would frustrate the purposes behind the aforementioned “requester-specific provisions” of the FOIA. See Def.’s Second 443 Mem. at 6–7 | National_Security_Counselors_2013-08-15.txt |
2d5be7a3-7f82-472b-ab80-aa45cebda1bc | . Furthermore, agency recognition of assignments of FOIA requests would, at most, merely transfer some administrative steps to the processing of a pending FOIA request that would already be taken with respect to a new, duplicative FOIA request; it would not necessitate that the “the purpose behind [the requester- specific provisions] . . . be frustrated.” See id. at 7 | National_Security_Counselors_2013-08-15.txt |
f3b6bcec-6f8c-4c3f-b117-4b775e09be67 | . c) Recognizing the Assignment of FOIA Requests Would Impose No Categorically Undue Burden on the CIA. The CIA devotes a substantial portion of its briefing and the majority of the Fifth Lutz Declaration to the contention that recognizing assignments would place an undue burden on the CIA’s FOIA administrators. See Def.’s Second 443 Mem. at 7–10; Fifth Lutz Decl. ¶–13 | National_Security_Counselors_2013-08-15.txt |
27be4f37-d222-4758-b21b-b1d5823b71c7 | . In 49 this vein, the CIA enumerates several ways in which “[a]ssignment of FOIA rights would prejudice the Agency both at the administrative processing stage and in litigation.” Fifth Lutz Decl. | National_Security_Counselors_2013-08-15.txt |
1fba969a-fd0f-44cb-83ea-e4ad84865475 | . Rather than recognize assignments, the CIA proposes that having putative assignee requesters simply submit a new, duplicative FOIA request would entail less prejudice to the agency and no prejudice to the requester. See id. . The Court disagrees | National_Security_Counselors_2013-08-15.txt |
7a0dd3e3-c156-4980-b710-619d62d06ff8 | . First, according to the CIA, assignment of FOIA rights would “complicate [the CIA’s Public Information Programs Division’s] adjudication of requests for fee waivers, expedited processing, and placement in a given fee category.” Id. | National_Security_Counselors_2013-08-15.txt |
ed20d0d5-a42c-4464-b481-464961b404b9 | . With respect to this first argument, the CIA essentially contends that, if a FOIA request is assigned to another person, the CIA “would be required to stop processing the request” and decide whether the assignee requester (1) is entitled to expedited processing or (2) shares the original requester’s same fee category. Id | National_Security_Counselors_2013-08-15.txt |
17555125-01df-46de-978b-90ca19a82391 | . The CIA adds that, in the event of assignment, it “would also have to resolve the question as to whether fees should be charged retroactively for assignees that do not qualify for the assignor’s fee waiver or preferential fee category.” Id. . Similarly, the CIA complains, “where the assignor submitted a privacy waiver of a third party . . | National_Security_Counselors_2013-08-15.txt |
d5e25af1-b275-4a8c-914a-da4aa0aa855f | . issues of consent would arise,” and the assigned request “would require the submission of a new privacy waiver.” Id. . There is no question that, if a FOIA request were assigned by the original requester, the CIA would need to assess the applicability of the “requester-specific provisions” of the FOIA, discussed above, to the assignee requester. See supra Part III.B.1(b) | National_Security_Counselors_2013-08-15.txt |
e822145c-28e3-4098-b2b1-0ad261daa2c4 | . What the CIA does not explain, however, is why such an effort would “prejudice” the agency, given the fact that the CIA would have to make the exact same assessment if the assignee were to submit a new FOIA request instead of pursuing the assigned FOIA request | National_Security_Counselors_2013-08-15.txt |
56c472e1-d15b-487f-aff6-907f7ebec0ac | . Hence, the assignment of a FOIA request would not add to the agency’s burden in administering the requester-specific provisions of the 50 statute, as compared to the submission of a new FOIA request: Both a new FOIA request and an assigned FOIA request would require de novo determinations regarding fee status, fee waivers, expedited processing, and the applicability of Exemptions 6 and 7(C) | National_Security_Counselors_2013-08-15.txt |
f7f6fba7-3222-4425-aa60-21b1a1a6ca55 | . As to the CIA’s complaint about needing to decide “whether fees should be charged retroactively,” see Fifth Lutz Decl. , this is hardly a burden, let alone an “undue” one | National_Security_Counselors_2013-08-15.txt |
cd586d3b-9e37-4d8a-9b34-80804e957cae | . First, to the extent the recognition of an assignment would permit the CIA to charge FOIA fees to the assignee when it would not have been able to charge fees to the original requester, a policy of recognizing assignments represents a net gain to the agency, not a burden | National_Security_Counselors_2013-08-15.txt |
6b1cb8ef-86e2-4534-9333-84295c7994e7 | . Second, the CIA is free to charge fees to any assignee FOIA requester who does not qualify for a fee waiver, just as it would be free to do if the same requester had filed a new request. Again, the administrative burdens between the two scenarios are identical.18 Second, the CIA fears that “assignment of rights presents the potential for abuse.” See id. | National_Security_Counselors_2013-08-15.txt |
a84900ec-0cb5-4cd8-805d-e1cdd2b06d92 | . The CIA asserts in this regard that it “does not have the resources to inquire into the validity of the requesters’ consent and assignees’ acceptance or to evaluate whether the assignment comports with [the] law of the state where the assignment was conferred.” Id. (footnote omitted) | National_Security_Counselors_2013-08-15.txt |
d0c241e8-27cb-49f1-aaff-8241dc23db19 | . First, as to the state-law question, it is likely that federal common law, not state law, would govern whether the assignment of a FOIA request were valid. Cf. Gulfstream III Assocs., Inc. v. Gulfstream Aerospace Corp., 995 F.2d 425, 437 (3d Cir. 1993) (“[T]he validity of the assignment of an antitrust claim is a matter of federal common law.”) | National_Security_Counselors_2013-08-15.txt |
419c6826-5e0a-4f73-b693-948c9aef5955 | . The FOIA has been held to preempt other state-law doctrines regarding rights of access to information. See, e.g., Ctr. for 18 This would also not be a “retroactive[]” assessment of fees, since the conduct that would trigger the fee assessment would be the assignment of the request, not the initial submission of the request. See, e.g., Quantum Entertainment Ltd. v. U.S. Dep’t of Interior, 714 F | National_Security_Counselors_2013-08-15.txt |
48c97033-f3a2-4803-88a6-7b4a6122a1bc | .3d 1338, 1343 (D.C. Cir. 2013) (“[T]he application of a new statute is . . . retroactive only if it would ‘impair rights a party possessed when it acted, increase a party’s liability for past conduct, or impose new duties with respect to transactions already completed.’” (quoting Landgraf v. USI Film Prods., 511 U.S. 244, 280 (1994))). 51 Nat’l Sec. Studies v. U.S. Dep’t of Justice, 331 F | National_Security_Counselors_2013-08-15.txt |
c600eec4-4994-4200-a5da-5ac68b682a8c | .3d 918, 936 (D.C. Cir. 2003) (common-law right of access); see also Hartford Fire Ins. Co. v. United States, 857 F. Supp. 2d 1356, 1365 (Ct. Int’l Trade 2012) (“Because FOIA establishes a comprehensive statutory framework for disclosure of agency records, when it conflicts with existing common law rights to disclosure, such rights are preempted.”) | National_Security_Counselors_2013-08-15.txt |
b92fa05f-ae37-4f60-b034-099c84323599 | . Thus, arguably, since the validity of a FOIA assignment affects the putative assignee’s right to access information from the federal government, the question of validity is an “issue[] closely interwoven with a broad scheme of federal statutory regulation,” which requires the development of interstitial federal common law. See Gulfstream, 995 F.2d at 438 | National_Security_Counselors_2013-08-15.txt |
f7b72b27-0f1d-4562-b182-d276142e49a8 | . Even if state law did apply to the validity of the assignment of a FOIA request, the CIA has failed to explain why it would need to “inquire into the validity” of every such assignment. See Fifth Lutz Decl. | National_Security_Counselors_2013-08-15.txt |
34107045-700a-4bc3-a098-47a98d2bed98 | . The Court addressed this issue in its previous opinion, saying that “[a]gencies can and should shift the vast majority of any burden to the assignees themselves, requiring them to submit whatever documentation the agency deems sufficient to validate an assignment.” NSC I, 898 F. Supp. 2d at 259 | National_Security_Counselors_2013-08-15.txt |
91b670db-3d47-4c81-878a-12810bbf54e9 | . The CIA already does this in the context of third- party consent for the release of personal information. See CIA FOIA, FOIA Helpful Hints, http://www.foia.cia | National_Security_Counselors_2013-08-15.txt |
51680227-870a-47cd-83da-ff07252389c8 | .gov/foia-helpful-hints (last visited August 11, 2013) (requiring requesters who seek “records on an individual other than yourself” to provide “[a] signed notarized statement from the other individual authorizing release of personal information”) | National_Security_Counselors_2013-08-15.txt |
5f074a37-eaf0-4db4-acf0-375ce259612f | . It defies all logic to say that the CIA can accept standardized third-party information releases but would need to “inquire into the validity of [each] requester[’s] consent and assignee[’s] acceptance.” See Fifth Lutz Decl. . The CIA’s purported investigatory burden in this regard is largely imaginary and would certainly not be undue or categorical in nature | National_Security_Counselors_2013-08-15.txt |
05ad3156-ce05-4c13-ab3b-d905b7428a07 | . 52 Third, and as referenced above, the CIA argues that the assignment of FOIA requests would “increase its exposure to litigation” by “substituting a motivated assignee for a passive requester.” See Fifth Lutz Decl. | National_Security_Counselors_2013-08-15.txt |
b4a4f8a8-a182-4dfb-af67-18e0d34e2c5a | . As discussed above, to the extent that the Assignment of Rights Policy is aimed at keeping otherwise meritorious FOIA claims out of federal courts, it is at odds with the purposes of the FOIA. See supra Part III.B.1(b) | National_Security_Counselors_2013-08-15.txt |
b079d9ec-263a-4f9f-a629-af23891a428c | . Furthermore, the CIA’s contention that “the assignee would be placed in a better position to litigate the assigned request than if they had submitted a new request on the same subject,” Fifth Lutz Decl. , implicitly confirms that the Assignment of Rights Policy tends to prejudice requesters | National_Security_Counselors_2013-08-15.txt |
1379ce2a-ad33-4e27-a973-5870861057cb | . To the extent an “assignee would be placed in a better position to litigate the assigned request than if they had submitted a new request on the same subject,” id | National_Security_Counselors_2013-08-15.txt |
94c1a406-4899-4186-b3e0-e0d8b4715e30 | ., then a FOIA requester “submit[ing] a new request on the same subject” would be in a worse position to litigate the assigned request, presumably because the requester would be less likely to be able to take advantage of the FOIA’s constructive exhaustion provision, 5 U.S.C. § 552(a)(6)(C)(i) | National_Security_Counselors_2013-08-15.txt |
38ce4b4f-02d5-4dbe-9cff-42c8db009690 | .19 Frankly, the CIA’s argument in this regard appears to boil down to a concern with ensuring that the agency can present a rosier picture of its compliance with the time limits of the FOIA, rather than with any concern regarding an undue burden.20 See, e.g., Fifth Lutz Decl | National_Security_Counselors_2013-08-15.txt |
fa670d5f-cf41-470c-bc93-73c0154d6bb4 | . (without having to recognize assignments, the CIA “can more easily comply within the statutory timeframe established by the FOIA”). It may be that refusing to recognize assignments would “minimize[]” the CIA’s litigation risk, see id., by allowing the agency to restart the clock with a 19 It is not clear what the CIA means by “placed in a better position to litigate the assigned request | National_Security_Counselors_2013-08-15.txt |
76a99d7f-f412-44f0-8c1b-70a0f1c2f8dd | .” See Fifth Lutz Decl. . The only potential difference between assignees and non-assignees with regard to litigation, as the Court observes above, is that a non-assignee may be less likely to be able to take advantage of the FOIA’s constructive exhaustion provision, 5 U.S.C. § 552(a)(6)(C)(i) | National_Security_Counselors_2013-08-15.txt |
fe9ff6c1-b6a9-45d5-b157-6e6f09b8ab06 | . This fact, if true, would only mean that an assignee would be able to litigate a request more quickly than a non-assignee in some instances, but it would not mean that the assignee’s claims in litigation would be any more or less meritorious than those of non-assignees | National_Security_Counselors_2013-08-15.txt |
22d807ca-3233-4711-b4d1-9e5a46080596 | . 20 The FOIA requires that an agency make a “determination” regarding a FOIA request within twenty business days of the receipt of the request, and it also requires that an agency make a “determination” regarding any administrative appeal within twenty business days of the receipt of the appeal. See 5 U.S.C. § 552(a)(6)(A) | National_Security_Counselors_2013-08-15.txt |
0fbdbb8f-3a95-40ee-8acf-d316cd8fcc4a | . 53 new FOIA request, rather than having to respond to the initial request within the statutory timeframe. Compliance with the statutory timeframe, however, is not an undue burden; it is a burden that Congress expects agencies to bear. See, e.g., Citizens for Responsibility & Ethics in Wash. v. FEC, 711 F.3d 180, 189–90 (D.C. Cir. 2013) | National_Security_Counselors_2013-08-15.txt |
a68ccb11-f2bc-4641-a6ce-f86386caebf0 | . Fourth, the CIA relatedly argues that “an assignee may attempt to seek an award of attorney fees and costs citing work completed pre-assignment.” Fifth Lutz Decl. . The CIA likewise asserts that “[i]n certain cases, a requester would not be eligible for any award ‘but for’ an assignment.” Id. | National_Security_Counselors_2013-08-15.txt |
50bf2549-4117-47d5-a072-d6c4ad5dfad2 | . With respect to the latter assertion, the CIA provides two examples: (1) “were the Agency to comply with a request within the FOIA’s time limits, a requester would [be] ineligible for attorney’s fees,” and (2) “a requester seeking already disclosed records would not satisfy the attorney fees entitlement factor that considers the public benefit derived from the case.” Fifth Lutz Decl. | National_Security_Counselors_2013-08-15.txt |
1c73a114-d3e2-4f78-b1cf-775ef2cf953f | . Both of these examples, however, present problematic support for the agency’s position. As to the first, a simple review of the statutory language demonstrates that the CIA’s conclusion is dead wrong | National_Security_Counselors_2013-08-15.txt |
2812cde9-a5ca-421b-b48b-7ede52c04b5e | . The FOIA provides that a “court may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case under this section in which the complainant has substantially prevailed.” 5 U.S.C. § 552(a)(4)(E)(i) | National_Security_Counselors_2013-08-15.txt |
f13e2fdb-10fb-4221-8c95-f90922d3a954 | . Therefore, in the circumstance where (1) an agency timely responds to a FOIA request and (2) withholds responsive records, but (3) the requester later secures a judgment from a court ordering the agency to disclose the responsive records that were withheld, the requester has “substantially prevailed” and would therefore be eligible for attorney’s fees, despite the fact that the agency responded | National_Security_Counselors_2013-08-15.txt |
47c25b23-ebf8-4554-9b05-5d6bb7e415ee | to the request in a timely fashion | National_Security_Counselors_2013-08-15.txt |
01032330-cebe-4dce-8c77-87ce413e4235 | . See id. § 552(a)(4)(E)(ii) (defining “substantially prevailed” as, inter alia, “a judicial order or enforceable written agreement or consent decree”). Indeed, such a plaintiff would be eligible for 54 attorney’s fees even without a court disclosure order, so long as the plaintiff’s “lawsuit substantially caused the agency to release the requested records.” See Davis v. U.S | National_Security_Counselors_2013-08-15.txt |
c442e451-4ca9-41ad-99e5-d448074cc0bb | . Dep’t of Justice, 610 F.3d 750, 752 (D.C. Cir. 2010). The legal basis for the CIA’s assertion that merely responding within the statutory timeframe immunizes it from claims for attorney’s fees is unclear. As to the second example provided by the CIA, it is totally implausible that “a requester seeking already disclosed records” would ever substantially prevail in a FOIA lawsuit | National_Security_Counselors_2013-08-15.txt |
583b3615-ca19-4ffe-b085-a926a2fe627c | . See Fifth Lutz Decl. . Assuming that, by “already disclosed,” the CIA means already officially disclosed, the only way this could occur would be if the agency in question refused to provide the requester with the “already disclosed records,” thus necessitating a court order | National_Security_Counselors_2013-08-15.txt |
58ebf09c-5ce7-4fd2-876a-a941e5ac00dd | . This scenario is particularly implausible because the CIA asserts later in its declaration that processing “requests for previously requested records” is simple and expedient because “the legwork for the request has been completed.” Id. | National_Security_Counselors_2013-08-15.txt |
9ed75401-733c-49e8-a59c-06647104a11d | . Presumably, processing a FOIA request for “already disclosed records” would be even simpler and more expedient, requiring nothing more than duplication of the records that have already been processed and released. How such a scenario would ever approach the question of attorney’s fees is a puzzle the CIA’s argument leaves unsolved | National_Security_Counselors_2013-08-15.txt |
90520334-5fe5-4df4-a1c3-a2f3038b6f5f | . In short, the two examples provided by the CIA with regard to attorney’s fees do not come close to establishing any kind of “undue burden” that would result from the recognition of assignments. The same is true of the CIA’s concern that “an assignee may attempt to seek an award of attorney fees and costs citing work completed pre-assignment.” See Fifth Lutz Decl. | National_Security_Counselors_2013-08-15.txt |
51493282-8b63-4a02-807d-73bf94ab76d4 | . Similar to the litigation burden argument addressed above, requiring the CIA to incur attorney’s fees—including attorney’s fees for work completed pre-assignment—is not an undue 55 burden. Attorney’s fees are the price exacted from agencies by the FOIA, designed to “remove the incentive for administrative resistance to disclosure requests based . . | National_Security_Counselors_2013-08-15.txt |
2d7a5d40-2ac9-4a8b-ad62-58c73ec51381 | . on the knowledge that many FOIA plaintiffs do not have the financial resources or economic incentives to pursue their requests through expensive litigation.’” Davy v. CIA, 550 F.3d 1155, 1158 (D.C. Cir. 2008) (quoting Nationwide Bldg. Maint., Inc. v. Sampson, 559 F.2d 704, 711 (D.C. Cir. 1977)). It is thus telling that the CIA discusses “an incentive . . | National_Security_Counselors_2013-08-15.txt |
f20c2652-5ddb-452e-af3f-07e916b1f356 | . to litigate requests that would otherwise not be pursued” as if it were something the FOIA seeks to discourage. See Fifth Lutz Decl. . Finally, the CIA claims that “no prejudice [would] result[] from requiring individuals to submit a [new and duplicative] FOIA request.” Id. . Embedded within this contention, however, is yet another inconsistency | National_Security_Counselors_2013-08-15.txt |
88c15783-b062-4e50-98bf-51ff74bea8b2 | . As discussed above, the CIA contends that having to reassess the applicability of the FOIA’s “requester-specific provisions” for an assigned request would be an undue burden. See id. ¶–7 | National_Security_Counselors_2013-08-15.txt |
8ce3a4ba-5895-4515-9ce4-e34d62a575d0 | . Yet, when the CIA must perform that same reassessment for a new, duplicative FOIA request, it says that the task is simple and that it “often result[s] in a response to a requester within the statutory timeframe.” Id. . Both positions cannot simultaneously be accurate | National_Security_Counselors_2013-08-15.txt |
9c86411d-17c1-44a6-be1e-33e3b3722029 | . Furthermore, the CIA only considers two factual circumstances in its declaration: (1) “requests for previously requested records,” and (2) “a request for the same subject as an outstanding request.” Id | National_Security_Counselors_2013-08-15.txt |
1eef2202-c207-4f3c-a4e5-00cbe2b8a90d | . Yet, the facts of the instant case fall into a third category: an assignee requester seeks to step into the shoes of an original requester while the request in question is making its way through the administrative appeal process. See NSC I, 898 F. Supp. 2d at 244 (discussing how JMP assigned request to NSC nearly six months after JMP had filed administrative appeal) | National_Security_Counselors_2013-08-15.txt |
7f8fb6e6-50ab-497a-90de-27f38f934ca7 | . Indeed, in this case, NSC sought to amend the pending administrative appeal with respect to the assigned request over a year after the administrative appeal had been 56 filed. See id. In light of this factual predicate, the CIA does not explain how requiring NSC to file a new FOIA request would have resulted in no delay | National_Security_Counselors_2013-08-15.txt |
c6cef9d8-6022-42a5-8da5-6f8d1d5176ec | . The CIA would have first needed to process the new request, and although “the legwork for the request ha[d] [already] been completed,” Fifth Lutz Decl. , the CIA would have admittedly had to assess NSC’s fee status and right to expedited processing, see id. . Then, NSC would have had to file an administrative appeal from scratch | National_Security_Counselors_2013-08-15.txt |
d64a5738-a363-469c-9b7e-cefbe01096c0 | . The CIA does not state whether it also “piggybacks” administrative appeals for the same information, nor does the CIA say whether such appellate “piggybacking” would be feasible, since even multiple requests for the same information are liable to raise distinct and separate issues in their administrative appeals | National_Security_Counselors_2013-08-15.txt |
d0b7fa8a-45f2-422d-9fe9-1bcd540c6931 | .21 The CIA nevertheless concludes—ignoring the procedural posture of the specific request at issue in this case—that “if plaintiff were to request the same information, his request would be joined with the existing request and the Agency would respond to both requests at the same time.” Id. | National_Security_Counselors_2013-08-15.txt |
b55fd66f-63ce-40fe-a6ab-8655a865651e | . As demonstrated above, however, it is not a simple matter of “join[ing] with the existing request” because the original request had already traveled almost entirely through the administrative process at the time of assignment | National_Security_Counselors_2013-08-15.txt |
07ba47d7-5929-4838-8f58-ef8d21a8c477 | . How the process of catching the new request up with the original request would result in no delay whatsoever defies reality, particularly in a case like the instant one where the original administrative appeal had been pending for over a year when the assignee attempted to modify it | National_Security_Counselors_2013-08-15.txt |
ccaef818-5e62-4fe2-b767-829e04baab2a | . Thus, even assuming that the CIA uniformly implements its “piggybacking” policy, such a 21 The risk of delay would be even more acute if a FOIA request were assigned after the administrative appeal process had already been completed | National_Security_Counselors_2013-08-15.txt |
397580ac-4d9c-4eaf-93fc-0874a788573a | . At that point, the second requester (in this case NSC) would need to file a new FOIA request, file a new administrative appeal, and exhaust the entire administrative process before it would be in the same position as the original requester. 57 policy would still inevitably result in delay to requesters, particularly with respect to FOIA requests that are far along into the administrative process | National_Security_Counselors_2013-08-15.txt |
a3bbe459-d685-4bb8-878f-eaa13b3b9ecf | .22 In sum, the Court concludes that the CIA’s admitted Assignment of Rights Policy constitutes a “failure to abide by the terms of the FOIA.” See Payne, 837 F.2d at 491. The Court likewise concludes that the CIA’s ongoing failure is not excused by the presence of any undue burden that would result from recognizing the assignment of rights associated with FOIA requests | National_Security_Counselors_2013-08-15.txt |
37bf3619-c4b8-4f21-8e18-958c45560141 | . Thus, the CIA may no longer categorically refuse to recognize the assignment of FOIA requests, and the Court will grant summary judgment to the plaintiff on Count Two in No. 11- 443. Additionally and relatedly, since the CIA cites only the Assignment of Rights Policy as the justification for not providing any final administrative response to the plaintiff regarding FOIA request No | National_Security_Counselors_2013-08-15.txt |
bae3469a-d4d1-484c-b535-5aa47e325c7c | . F-2008-01105 (the request assigned by JMP to the plaintiff), the CIA has not met its burden at summary judgment. Since the Assignment of Rights Policy is invalid and thus clearly not sufficient to justify the CIA’s refusal to permit the plaintiff to pursue its administrative appeal, the Court will grant summary judgment to the plaintiff on Count One in No. 11-443 as well | National_Security_Counselors_2013-08-15.txt |
4f781d8d-2045-49e1-ae4c-df67a5ecba42 | . The current status of the FOIA request at issue in Count One, however, is not clear. The CIA stated in January 2013 that this request was “still pending.” See Fifth Lutz Decl. . Likewise, the plaintiff states in its Complaint that the FOIA request was administratively appealed prior to the assignment being issued. See 443 Compl. ¶–13 | National_Security_Counselors_2013-08-15.txt |
b32b6aed-4b4a-4f17-8c2d-3861b7debd22 | . Thus, although the plaintiff requests the Court to “order CIA to immediately release all currently withheld information responsive to . . . the FOIA request at issue in Count 1,” see Pl.’s 443 Cross-Mot. Mem | National_Security_Counselors_2013-08-15.txt |
3b872d98-ccc7-48ed-a88b-21308301d819 | . at 2, the Court will remand this matter to the agency rather than order the 22 The “piggybacking” policy would presumably be much less likely to result in delay if an assignment of rights were to take place early on in the FOIA request process, such that the two requests could be joined prior to any significant amount of work being done with respect to either request | National_Security_Counselors_2013-08-15.txt |
eba7a890-ef24-48fc-b129-69eaa263e3b6 | . 58 release of responsive records. On remand, the CIA must permit the plaintiff to exhaust its administrative remedies through the administrative appeals process as an assignee of the FOIA request in question.23 2. Document-Level Exemption Policy In Count Twenty of No. 11-445, the plaintiff complains that the CIA has a policy or practice “of refus[ing] to invoke exemptions with particularity | National_Security_Counselors_2013-08-15.txt |
9e136598-ad58-45f9-b967-89da028779e9 | .” See 445 FAC . Specifically, the plaintiff alleges that the CIA’s policy is to “invoke[] [FOIA] exemptions on a document-level without indicating which exemptions applied to which particular redactions.” Id. . In its previous opinion, the Court dubbed this the “Document-Level Exemption Policy.” See NSC I, 898 F. Supp. 2d at 243 | National_Security_Counselors_2013-08-15.txt |
adfa061e-8b18-40f3-a1c4-05f8a939b74c | . The FOIA requires that, when an agency releases segregable portions of a record, “the exemption under which the deletion is made, shall be indicated on the released portion of the record, unless including that indication would harm an interest protected by the exemption . . . under which the deletion is made.” 5 U.S.C. § 552(b). In this regard, the FOIA also states, “[i]f technically feasible, | National_Security_Counselors_2013-08-15.txt |
96484559-b2f5-44d1-b53d-0dc544b6f951 | . . . the exemption under which the deletion is made, shall be indicated at the place in the record where such deletion is made.” Id. Finally, the FOIA provides that “a court shall accord substantial weight to an affidavit of an agency concerning the agency’s determination as to technical feasibility under . . . subsection (b).” Id. § 552(a)(4)(B) | National_Security_Counselors_2013-08-15.txt |
32ea4765-d564-4884-a30c-4ffcc5b1049b | . In the instant case, the CIA defends its Document-Level Exemption Policy by contending that “it is not currently technically feasible for the Agency to assert exemptions on the redaction level.” Def.’s Mem. in Supp. Mot. Summ. J. on Counts Twelve & Twenty (“Def | National_Security_Counselors_2013-08-15.txt |
6fb1b762-20d2-4fd6-8e56-6caa6c3acd2d | .’s Second 445 23 The CIA indicates that “if the Court were to order the CIA to begin recognizing assignments, the Agency would have to determine whether NSC’s purported assignment comports with state law and was legitimately obtained and address potential fee and personal privacy issues before it could proceed to litigate the underlying request.” Def.’s Second 443 Reply at 11 | National_Security_Counselors_2013-08-15.txt |
fea6b3dc-9da8-4eef-a0fc-1c5c554f04cb | . The Court will leave these matters to the agency on remand, but cautions that the CIA’s legal position regarding the validity of an assignment resting on state law is highly questionable and, furthermore, may be inconsistent with the law of this case. See NSC I, 898 F. Supp. 2d at 259 (“The Court holds that the plaintiff’s Assignment is valid and enforceable . . . .”). 59 Mem.”) at 2, No | National_Security_Counselors_2013-08-15.txt |
7e9b591f-8019-4b0b-a547-8225978417c3 | . 11-445, ECF No. 42. To support this contention, the CIA has submitted the sworn declaration of Michele Meeks, who is the chief of the CIA’s Public Information Programs Division (“PIPD”) and also the CIA Information and Privacy Coordinator (“IPC”). See Decl. of Michele L. Meeks (Apr. 29, 2013) (“Meeks Decl.”) , No. 11-445, ECF No. 42-1. In that declaration, Ms | National_Security_Counselors_2013-08-15.txt |
f1fcc038-da6d-4664-9a57-9bd97fd8a891 | . Meeks explains that “[t]he CIA’s [FOIA] review process is decentralized whereby each of the [CIA’s] five directorates . . . maintains an [Information Review Officer, or ‘IRO’] staff that reviews Agency records and makes public release determinations with an eye toward evaluating directorate-specific equities.” Id. . Ms | National_Security_Counselors_2013-08-15.txt |
35923fc0-34a2-43e7-81b7-2a9f55186512 | . Meeks also explains that “records frequently involve the equities of multiple directorates,” and “[w]hen records implicate the operational interests of multiple directorates, the reviews are conducted by the relevant IROs simultaneously.” Id. ¶–6 | National_Security_Counselors_2013-08-15.txt |
b1253ac8-e87a-4611-a02f-159697e473b2 | . Within each directorate, “IRO staffers electronically redact any protectable material and indicate the basis for the redaction on the page,” and each directorate maintains “a separate electronic version of the document.” Id. . Once all relevant directorates have completed their reviews, Ms | National_Security_Counselors_2013-08-15.txt |
a02aa6ef-acb6-435a-88a2-80f34f8bd865 | . Meeks explains, the CIA “then consolidates the redactions generated by the reviewing IRO staffs into a single document.” Id. . In this regard, Ms | National_Security_Counselors_2013-08-15.txt |
75d87061-1f80-4d94-863d-fdee1420ef2d | . Meeks states that “there is frequently variation as to what is redacted by the different directorates,” and in that circumstance, “[CIA] staffers compile the redactions made by each directorate and merge all of the redactions into a final version in preparation for public release.” Id | National_Security_Counselors_2013-08-15.txt |
bba70f35-ca63-4414-9888-57409c84a55f | . This preparation of the “final version” occurs on the CIA’s Automated Declassification and Release Environment (“CADRE), which “does not have similar capability with respect to exemptions and other document markings.” Id. . In CADRE, Ms | National_Security_Counselors_2013-08-15.txt |
3a41b846-ff58-44a0-ab78-46338dbb6d0a | . Meeks states, “[t]he merge function pulls the underlying justification for the redaction, but, due to the substantial overlap of the redactions in each of the directorate’s versions, the exemptions appear 60 on top of one another and are unreadable.” Id | National_Security_Counselors_2013-08-15.txt |
3f0c683d-82c8-4d47-bbbd-6c52f4c4fb6b | . Therefore, “[t]he staff involved in the merging cannot, without conducting extensive, time consuming manual review, parse out which exemptions apply to a specific redaction and notate as appropriate.” Id. The Court is mindful that it has a statutory obligation to “accord substantial weight” to Ms. Meeks’ statements regarding the CIA’s determination of technical feasibility, see 5 U.S.C | National_Security_Counselors_2013-08-15.txt |
002186b0-6ed6-43e1-90fe-7a432bb9374b | . § 552(a)(4)(B), but Ms. Meeks’ explanation of the purported technical infeasibility of noting redaction-level exemptions has several unexplained gaps and inconsistencies. It should be noted again at the outset that the CIA’s Document-Level Exemption Policy is, like the Assignment of Rights Policy, categorical in nature. See Meeks Decl | National_Security_Counselors_2013-08-15.txt |
1338da69-3ff1-4e66-82f3-882157b0752d | . (“[A]t present, the Agency indicates all the applicable exemptions in the top corner of the released document.”). This characteristic of the policy is notable, considering that the basis for the Document-Level Exemption Policy is that, when multiple directorates review a record, “the exemptions appear on top of one another and are unreadable.” Id. . Yet, Ms | National_Security_Counselors_2013-08-15.txt |
b6fd8fea-0cbe-4bba-8013-ab62f58fb917 | . Meeks explicitly concedes that records only “frequently involve the equities of multiple directorates.” Id. (emphasis added). That this situation occurs frequently is no justification for imposing the policy categorically, regardless of whether indicating redaction-specific exemptions is technically feasible when multiple directorates review the same document | National_Security_Counselors_2013-08-15.txt |
44c6ea2b-0df9-4cbd-810a-5a4bac3a1f79 | . Hence, when, for example, only one directorate reviews a given record or only one directorate indicates a redaction on a given record, the CIA’s Document- Level Exemption Policy is clearly unsupported and contrary to the FOIA. Furthermore, Ms. Meeks’ explanation of technical infeasibility is perplexing. The CIA’s process of redacting information, as explained by Ms | National_Security_Counselors_2013-08-15.txt |
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