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a8488dc0-1064-49bb-b461-649cc0d9f5f3 | . Meeks, only makes sense up until she explains what happens when the various electronic versions of a record are “merge[d],” after each directorate has reviewed it. See id. ¶–8. First, Ms. Meeks states on the one hand that 61 “there is frequently variation as to what is redacted by the different directorates,” implying that there is frequently no overlap between the directorates’ redactions | National_Security_Counselors_2013-08-15.txt |
678eba87-afb0-48f2-84e7-85b56887dd03 | . See id. (emphasis added). Indeed, this makes sense because, as Ms. Meeks points out, each directorate has “separate operational equities at issue.” See id. Yet, in the very next paragraph of her declaration, Ms | National_Security_Counselors_2013-08-15.txt |
3dd6dfd4-d5fa-4cfe-8eaf-f606f2eb39cd | . Meeks reverses course, stating that “the exemptions appear on top of one another and are unreadable” due to “the substantial overlap of the redactions in each of the directorate’s versions.” Id. (emphasis added) | National_Security_Counselors_2013-08-15.txt |
8863d094-eb30-4d3f-b7f6-440a22a2d65e | . Of course, “frequent[] variation” and “substantial overlap” are not mutually exclusive, but the CIA’s declaration does not explain why exemptions cannot be indicated next to a redaction that was made by only one directorate. It would be one thing if the CIA were to aver that every single redaction is always made by at least two directorates, but the CIA does not even suggest that to be the case | National_Security_Counselors_2013-08-15.txt |
2d57081e-e335-4fde-bba7-d8b51531f8f7 | . In fact, it would appear not to be the case because Ms. Meeks’ declaration strongly implies that, at least sometimes, an entire document is reviewed by only one directorate, see id. , and thus necessarily every redaction made to such a document would be made by only the one reviewing directorate | National_Security_Counselors_2013-08-15.txt |
b2eedef8-ef3f-44e6-abbb-c72dffffa308 | . In such a circumstance—which the CIA suggests is uncommon but nevertheless extant—indicating the claimed exemption “at the place in the record where such deletion is made” appears to be technically feasible based on the CIA’s own explanation of how its redaction process works. See 5 U.S.C. § 552(b) | National_Security_Counselors_2013-08-15.txt |
c35f6fa0-e1b1-459a-88c1-d0a288297481 | . Therefore, even according the “substantial weight” due to the CIA’s declaration on the issue of technical feasibility, see 5 U.S.C. § 552(a)(4)(B), the Court concludes that the CIA’s categorical Document-Level Exemption Policy constitutes a “failure to abide by the terms of the FOIA.” See Payne, 837 F.2d at 491 | National_Security_Counselors_2013-08-15.txt |
eeb6becf-dff6-40fb-81b9-80d7fbe981bc | . The CIA must make a case-by-case determination regarding the technical feasibility of indicating a claimed exemption associated with a deletion 62 “at the place in the record where such deletion is made.” See 5 U.S.C. § 552(b) | National_Security_Counselors_2013-08-15.txt |
6b7d9da4-35df-425a-93cc-b6478e75d02d | . Additionally, based on the CIA’s representations, the CIA can only possibly claim technical infeasibility if the same redaction in question was made by more than one directorate within the CIA. The Court will thus grant summary judgment to the plaintiff with respect to Count Twenty in No. 11-445.24 D | National_Security_Counselors_2013-08-15.txt |
457473b0-11c9-408d-a8df-a47a892c6c06 | . Adequacy of Search Efforts Next, the Court will discuss the plaintiff’s challenges to the adequacy of the search efforts of defendants CIA, State Department, and NSA in responding to four separate FOIA requests. The Court will address the considerations related to each request in turn. 1. Count Eighteen in No | National_Security_Counselors_2013-08-15.txt |
f83268d1-6b57-49d9-b80b-596864b6cff2 | . 11-444: January 26, 2011 FOIA Request to the CIA In response to the plaintiff’s January 26, 2011 FOIA request seeking “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,” the CIA determined that the Director’s Area was the only directorate within | National_Security_Counselors_2013-08-15.txt |
13e3b2b9-43e8-47bc-b34d-79bf1b1b44cd | the CIA reasonably likely to have records responsive to the request | National_Security_Counselors_2013-08-15.txt |
4ca030e9-2ede-4071-969f-4e907876b338 | . See First Lutz Decl. . The stated reason for this determination is that the request sought records “available to IMS,” and “IMS is a component within the Director’s Area.” See id | National_Security_Counselors_2013-08-15.txt |
e1e68f8a-bcf9-4893-9888-fd56daae0051 | . The CIA avers that the plaintiff’s request “was sent to IMS professionals who had personal knowledge of what search tools and indices were available and personally used by IMS personnel to search IMS records systems because they themselves use the search tools and indices references in the request.” Id. | National_Security_Counselors_2013-08-15.txt |
d5c9b6e3-f987-445d-a244-b8bd7c3d73e5 | . The IMS 24 To be clear, the Court is not ordering the CIA to make any modifications to its current document-redaction system, even if such a modification would make the agency’s processing of requests more FOIA-compliant. The plaintiffs advocates for an affirmative injunction against the CIA, requiring it to “correct” a perceived “technical problem” with CIA’s system. See Pl | National_Security_Counselors_2013-08-15.txt |
6f41fb28-3c50-44fd-96c4-3e3dfc8f022c | .’s Second 445 Opp’n at 6. The plaintiff’s challenge, however, was to the CIA’s categorical policy of refusing to indicate exemptions next to specific redactions. See 445 FAC ¶–31. The Court holds that that policy is invalid | National_Security_Counselors_2013-08-15.txt |
2cddc06f-3a74-4197-8954-80aaf0a62fef | . Whether or not the FOIA requires the CIA to broaden the universe of records for which it can feasibly claim exemptions for deletions “at the place in the record where such deletion is made” by, for example, changing its technical process for redacting records, is not at issue here | National_Security_Counselors_2013-08-15.txt |
a6a58471-0342-43f5-9bb1-bced5845a6da | . 63 personnel “electronically searched the IMS records system as well as manually searched for independently known records that were responsive to Plaintiff’s request.” Id. . The plaintiff raises two objections to the adequacy of the CIA’s search in response to the January 26, 2011 FOIA request | National_Security_Counselors_2013-08-15.txt |
b7e4d82a-854a-4917-a17f-1ee8a20e836f | . First, the plaintiff states that “the request asked for the indices themselves, in addition to records about them,” yet the CIA merely “provided three records which described indices.” See Pl.’s First 444 Opp’n at 24 (emphasis in original). Second, the plaintiff complains that, in a separate pending case, the CIA’s declarant, Ms | National_Security_Counselors_2013-08-15.txt |
2cc31f1d-b375-4283-9c60-241fb61d5bd9 | . Lutz, referenced the existence of several IMS systems of records which were not referenced in the documents released to the plaintiff in this case. See id. at 25. Specifically, the records released to the plaintiff in the instant case only reference two records systems: SMART2 and CADRE. See First Lutz Decl. . Yet, the plaintiff points to language in Ms | National_Security_Counselors_2013-08-15.txt |
02e9d1e9-209d-4f58-bb6e-54d691fad6bd | . Lutz’s declaration in a separate pending case (Civil Case No. 11-442), in which she “identified at least three more systems of records which exist ‘within IMS’ and for which records should have been released.” See Pl.’s Mot. for Leave to File Additional Evidence at 3, No. 11-444, ECF No. 44 | National_Security_Counselors_2013-08-15.txt |
efc5f9fc-009e-47b2-8ef7-e6c25bcb0743 | . Hence, the plaintiff asserts that the “CIA fails to explain with particularity why it identified no responsive records about these ‘other systems of records within IMS’ in particular.” Id. at 4 | National_Security_Counselors_2013-08-15.txt |
0c5971d2-a9d4-4979-9336-b4926e3d554b | . It is true that “the agency’s failure to turn up a particular document, or mere speculation that as yet uncovered documents might exist, does not undermine the determination that the agency conducted an adequate search for the requested records.” Wilbur, 355 F.3d at 678 | National_Security_Counselors_2013-08-15.txt |
a856a672-9aab-4508-82b7-160d304d30ee | . At the same time, however, agency affidavits must “‘explain in reasonable detail the scope and method of the search conducted by the agency.” See Morley, 508 F.3d at 1121 (quoting Perry v. Block, 684 F.2d 121, 127 (D.C. Cir. 1982)). In particular, in order to satisfy its burden of establishing the adequacy of its search, an agency’s affidavit must “describe in . . | National_Security_Counselors_2013-08-15.txt |
b446457d-0962-474d-9c47-057916d14e63 | . detail what 64 records were searched, by whom, and through what process.” Steinberg v. U.S. Dep’t of Justice, 23 F.3d 548, 552 (D.C. Cir. 1994). “A reasonably detailed affidavit, setting forth the search terms and the type of search performed . . | National_Security_Counselors_2013-08-15.txt |
3b959d7d-f1ba-473a-adc1-62047208227e | . is necessary to afford a FOIA requester an opportunity to challenge the adequacy of the search and to allow the district court to determine if the search was adequate in order to grant summary judgment.” Oglesby, 920 F.2d at 68. The CIA has failed to meet its burden in this case. Critically, the CIA’s declaration does not state what parameters were used to accomplish the search, i.e | National_Security_Counselors_2013-08-15.txt |
6958be48-5289-44df-9ca3-d6337ff200b3 | ., whether the CIA searched for the indices themselves or what search terms the CIA used to identify responsive records. The CIA’s declaration merely states in conclusory fashion that “IMS employees . . | National_Security_Counselors_2013-08-15.txt |
bd5451c0-1491-44ee-b5fd-c2cdabce0dbd | . conducted an adequate search for records responsive to Plaintiff’s request” by “search[ing] electronically for responsive documents and manually search[ing] for independently known responsive documents.” First Lutz Decl. . The CIA is correct that the plaintiff’s specific arguments improperly focus on “the agency’s failure to turn up . . . particular document[s],” i.e | National_Security_Counselors_2013-08-15.txt |
b8339dd1-9697-4c3d-872e-a7afe76e2f39 | ., the search indices themselves, and offer “mere speculation that as yet uncovered documents might exist,” i.e., documents about other records systems. See Wilbur, 355 F.3d at 678 | National_Security_Counselors_2013-08-15.txt |
da5b420e-bb69-42c5-adf8-c00359aed896 | . Even so, the plaintiff’s arguments underscore the more fundamental deficiency in the CIA’s declaration, which is that the CIA does not provide sufficient information for the Court to conclude that its search methods were “reasonably calculated to uncover all relevant documents.” See Morley, 508 F.3d at 1114 | National_Security_Counselors_2013-08-15.txt |
74de8d90-d04a-4795-80d3-609afd088c4b | . Based on the vague and conclusory assertions in the CIA’s declaration, the Court would be required to speculate in order to conclude that the agency’s search efforts “us[ed] methods which can be reasonably expected to produce the information requested.” Oglesby, 920 F.2d at 68. The Court will therefore deny summary judgment to the CIA on Count Eighteen in No | National_Security_Counselors_2013-08-15.txt |
5e90cac3-1a08-4aaf-a189-2df5e1b0cd01 | . 11-444 with respect to the adequacy of the agency’s search. 65 2. Count Twenty in No | National_Security_Counselors_2013-08-15.txt |
fab5c4b9-9aed-48bb-98f9-61aa6e386f20 | . 11-444: September 25, 2009 FOIA Request to the CIA As stated above, the plaintiff submitted a FOIA request to the CIA on September 25, 2009, seeking “all [CIA] records, including cross-references, pertaining to guidelines for attorneys in the Office of General Counsel (‘OGC’) for the conduct of civil cases, especially pertaining to interactions between OGC attorneys and Department of Justice | National_Security_Counselors_2013-08-15.txt |
c928378f-a8b0-4fdb-82ca-a83ff970a486 | (‘DOJ’) attorneys | National_Security_Counselors_2013-08-15.txt |
1f6a91ba-a0f4-4728-bbbb-d06cafec35b9 | .” First Lutz Decl. Ex. T at 1. In response to this request, the CIA’s declarant avers that “IMS professionals determined that the Director’s Area was the only directorate reasonably likely to have” responsive records. First Lutz Decl. . The Director’s Area then “tasked the [OGC] to search for records responsive to the Plaintiff’s request.” Id. | National_Security_Counselors_2013-08-15.txt |
7528b873-e425-472f-a9de-d0a61a7864bf | . The OGC in turn “searched relevant records systems containing all files reasonably likely to contain responsive materials and located no records responsive to Plaintiff’s request.” Id. | National_Security_Counselors_2013-08-15.txt |
db2f7e6e-41ea-4f36-958d-60cfcf7774d4 | . OGC further “consulted [the CIA’s] Litigation Division management regarding this request” because the Litigation Division “is the component within OGC that interacts most frequently with DOJ attorneys, usually on a daily basis.” Id. According to the CIA’s declarant, “Litigation Division management confirmed that as of [December 2010], no documents responsive to Plaintiff’s request existed.” Id | National_Security_Counselors_2013-08-15.txt |
c2e09176-c5b7-4153-baf0-588f90dfe919 | . The plaintiff again raises two objections to the adequacy of the CIA’s search. First, the plaintiff raises what it refers to as “an existential problem—it is completely unfathomable that the [OGC] would have no records pertaining to guidelines for the conduct of civil cases.” Def.’s First 444 Opp’n at 26. Second, the plaintiff raises the “issue of cut-off dates.” Id. at 27 | National_Security_Counselors_2013-08-15.txt |
7f35e114-a536-4356-a103-b13a2f01fd0c | . The plaintiff states that the CIA “has a practice of assigning a cut-off date to every request of the date the acknowledgement letter is written.” Id. Neither of these contentions is sufficient to defeat summary judgment | National_Security_Counselors_2013-08-15.txt |
a80ca38c-10eb-410b-8042-2f884f34dfc4 | . As to the first, and as noted above, “the agency’s failure to turn up a particular document, or mere speculation that as yet uncovered documents might exist, does not 66 undermine the determination that the agency conducted an adequate search for the requested records.” Wilbur, 355 F.3d at 678 | National_Security_Counselors_2013-08-15.txt |
a753e87e-b601-4384-be8c-7dbcde7d9638 | . The plaintiff’s incredulity regarding the absence of responsive records is insufficient to overcome an otherwise adequate search. The second objection is premised on a semantic hair-splitting of the CIA’s declaration | National_Security_Counselors_2013-08-15.txt |
11fea07c-1681-4362-850d-1ef5b2b38f8b | . In particular, the plaintiff notes ambiguous language in the CIA’s declaration that could suggest that the CIA did not search for any records created after the date the CIA accepted the plaintiff’s FOIA request. See Pl.’s First 444 Opp’n at 6–7, 27–28 | National_Security_Counselors_2013-08-15.txt |
23541450-7671-4742-a1f8-4b4ac0de01a7 | . The plaintiff’s suspicions aside, the Court reads the CIA’s declaration to state that the CIA searched for records referenced in the plaintiff’s September 25, 2009 FOIA request as late as December 2011. See First Lutz Decl. . This is not an unreasonable cut-off date. See, e.g., Public Citizen v. Dep’t of State, 276 F.3d 634, 644 (D.C. Cir | National_Security_Counselors_2013-08-15.txt |
80f61162-8206-4d81-b882-6b4f94328ba1 | . 2002) (implicitly approving as reasonable a “date-of-search cut-off [date]”). Although neither of the grounds raised by the plaintiff is sufficient to defeat summary judgment, the Court nevertheless cannot grant summary judgment to the CIA because the CIA’s declaration fails to satisfy the minimal burden under the FOIA to establish the adequacy of the search | National_Security_Counselors_2013-08-15.txt |
ef44fd1e-c466-4da9-b210-866b930831a5 | . It is axiomatic that, for an agency to win summary judgment in a FOIA case, the agency’s justifications for its actions must be “specific” and “non-conclusory.” See, e.g., Am. Civil Liberties Union v. CIA, 710 F.3d 422, 426 (D.C. Cir. 2013). The CIA’s declaration regarding its search efforts in response to the plaintiff’s September 25, 2009 FOIA request, however, are neither | National_Security_Counselors_2013-08-15.txt |
16d0b908-b059-4dfb-becc-cc518cafc808 | . The declaration, for example, uses amorphous terms like “relevant records systems” and “all files reasonably likely to contain responsive materials,” without any explanation of how the agency determined which records systems and files were relevant or reasonably likely to contain responsive materials. See First Lutz Decl. | National_Security_Counselors_2013-08-15.txt |
6279569f-5046-4c3b-9396-9cbfb8b7c590 | . The CIA also does 67 not offer any reasoning for its conclusion that “the Director’s Area was the only directorate reasonably likely to have” responsive records. Id. . Finally, the CIA provides no description of the search parameters it used to locate responsive records. See, e.g., Oglesby, 920 F.2d at 68 | National_Security_Counselors_2013-08-15.txt |
fc7fec73-9845-4d09-a37f-743d36d11313 | . The Court cannot fill in these gaps for the agency under the auspices of good-faith deference. It is the agency’s burden to supply this information to secure summary judgment, and the CIA has failed to meet that burden. Accordingly, the Court will deny summary judgment to the CIA on Count Twenty in No. 11-444 with regard to the adequacy of the agency’s search. 3. Count Nine in No | National_Security_Counselors_2013-08-15.txt |
70d5c39e-aca9-4623-9c61-eef4b385d9b1 | . 11-445: February 6, 2010 FOIA Request to the State Department As discussed above, on February 6, 2010, the plaintiff submitted a FOIA request to the State Department, seeking “copies of all current training handbooks, manuals, guidelines, checklists, worksheets, and similar documents provided to [State Department] FOIA and Privacy Act analysts (both agency employees and contractors) | National_Security_Counselors_2013-08-15.txt |
b9920b02-a60e-4d97-bd9d-0b3123352acb | .” First Walter Decl. Ex. 1, at 1. In response, the State Department “determined that the office that was reasonably likely to have responsive documents was the Bureau of Administration’s Office of Information Programs and Services [‘IPS’].” First Walter Decl. | National_Security_Counselors_2013-08-15.txt |
046df49c-a353-401d-ab10-1b4d673322d0 | . The State Department’s declarant explains: “Because the request sought training materials provided to the [State] Department’s ‘FOIA and Privacy Act analysts (both agency employees and contractors),’ the [State] Department only searched IPS branches that employ FOIA and/or Privacy Act analysts because only those components were reasonably likely to have documents responsive to the subject | National_Security_Counselors_2013-08-15.txt |
7549efcf-ebe1-4ab4-a33f-cfba662de57a | request | National_Security_Counselors_2013-08-15.txt |
9410ccd1-8e76-49c4-a846-7f66c5bb45b5 | .” Id. . In all, the seven branches of IPS that employ FOIA or Privacy Act analysts were searched, and those searches yielded 122 responsive records. See id. ¶–24. Also as discussed above, the State Department’s Bureau of Diplomatic Security (“DS”) independently responded to the plaintiffs’ request on March 1, 2013, releasing twenty-six 68 responsive records that had not been released by IPS | National_Security_Counselors_2013-08-15.txt |
2b459267-b3b6-44c9-a216-6e4cfe35732b | . See Notice of Recent Development Regarding Count 9, at 1. As the State Department’s declarant explains, “IPS delegates limited authority to certain [State] Department components, including DS [and four other State Department components], to assist with the processing of [FOIA or Privacy Act] requests for purposes of administrative expediency and efficiency.” Third Walter Decl. | National_Security_Counselors_2013-08-15.txt |
6ba44aec-b301-45b1-827d-2ddb14b3ab25 | . Indeed, the State Department’s declarant explains that these five State Department components, including DS, “conduct their own FOIA/Privacy Act reviews and respond directly to requesters,” despite the fact that “IPS is the [State] Department’s central office for the processing of FOIA/Privacy Act requests and the development of FOIA policies and training.” Id. | National_Security_Counselors_2013-08-15.txt |
d0400c05-7da1-4b61-95da-132bf48845ba | . Despite the fact that DS released numerous, unique responsive records, “the [State] Department stands by its decision to limits its search . . . to IPS.” Id. Although the State Department appears unphased by the independent response of DS to the plaintiff’s FOIA request, the Court views the matter differently | National_Security_Counselors_2013-08-15.txt |
99d9ff28-29c8-4829-8269-6b8f0885c536 | . It is clear from the State Department’s initial declaration that the reason the seven IPS components were selected as being likely to contain responsive material is that they were the only branches of IPS “that employ FOIA and/or Privacy Act analysts.” See First Walter Decl. | National_Security_Counselors_2013-08-15.txt |
5ea0ce2e-6c28-40f9-9bd6-36f24faa47b8 | . Yet, it is equally clear from the State Department’s subsequent declaration that several other components of the State Department employ FOIA or Privacy Act analysts. Indeed, the fact that five other components of the State Department “conduct their own FOIA/Privacy Act reviews and respond directly to requesters,” see Third Walter Decl | National_Security_Counselors_2013-08-15.txt |
8820978b-040c-4c3b-be6b-70cd223757c1 | . , establishes that IPS is not the only State Department component likely to contain records responsive to the plaintiff’s February 6, 2010 FOIA request. Therefore, since the State Department “stands by its decision to limits its search . . . to IPS,” id., the State Department has failed to satisfy its burden of establishing that it conducted an adequate 69 search under the FOIA. See, e.g | National_Security_Counselors_2013-08-15.txt |
efc9b6bf-043d-45df-adf3-641c7c49ea72 | ., Ancient Coin Collectors Guild v. U.S. Dep’t of State, 641 F.3d 504, 514 (D.C. Cir. 2011) (agency’s affidavit must “aver[] that all files likely to contain responsive materials (if such records exist) were searched” (internal quotation marks omitted)).25 Accordingly, the Court will deny summary judgment to the State Department on Count Nine in No | National_Security_Counselors_2013-08-15.txt |
d1a99697-89b5-4602-8a2c-59f566f0f070 | . 11-445 in regard to the adequacy of the agency’s search. 4. Count Ten in No. 11-445: February 6, 2010 FOIA Request to the NSA Also on February 6, 2010, the plaintiff submitted a substantially identical FOIA request to the NSA. The only difference was that the request to the NSA sought training materials used by NSA FOIA and Privacy Act analysts, rather than those from the State Department | National_Security_Counselors_2013-08-15.txt |
add5367c-8353-4398-9292-d6670cd035c5 | . See Phillips Decl. Att. 1, at 2. The plaintiff raises only a narrow challenge to the adequacy of the NSA’s search efforts, arguing that “many of the records released by NSA explicitly referenced templates to be used for various FOIA letters by file name.” See Pl.’s First 445 Opp’n at 36 | National_Security_Counselors_2013-08-15.txt |
26c77f84-ee6e-4c72-853b-d2aa8556096f | . The plaintiff argues that the NSA’s failure to search for and produce such templates renders the 25 The plaintiff also specifically takes issue with the fact that the State Department “refused to search for . . . and process” three specific documents that the plaintiff believes “would be responsive to [its] requests.” See Pl.’s First 445 Opp’n at 36 | National_Security_Counselors_2013-08-15.txt |
38dd3d71-3ade-40e6-9bc5-c5ad13f70d64 | . To support its contention, the plaintiff relies on the fact that it sent an e-mail to the State Department’s counsel on May 27, 2012—over four months after the State Department had provided a final response to the plaintiff—requesting that the State Department search its Systematic Review Program (“SRP”) (a branch within the ISP) for three specific documents that the plaintiffs believed were | National_Security_Counselors_2013-08-15.txt |
4380eb78-a9f4-4e5e-a78f-e8ee1ae5ef96 | “clearly responsive” but had not been released | National_Security_Counselors_2013-08-15.txt |
ad932a40-562e-4f47-8ce2-4fbe5c7348b8 | . See id. at 35. The plaintiff contends that this e-mail was a “clear lead” that the State Department failed to follow, in violation of the FOIA. See id. at 35–36 (citing Halpern v. FBI, 181 F.3d 279, 288 (2d Cir. 1999)). The plaintiff’s arguments in this regard do not demonstrate a deficiency in the State Department’s search efforts, however, for three reasons | National_Security_Counselors_2013-08-15.txt |
2517cb8a-c97c-45ee-ad9f-a3c3c599ae5a | . First, the State Department did search the SRP for responsive material. See First Walter Decl. . Indeed, the SRP was searched both electronically and manually, using the keywords “training,” “guidance,” “procedures,” and “processing.” Id. Second, the plaintiff has not demonstrated that the three documents it seeks would in fact have been responsive to its FOIA request | National_Security_Counselors_2013-08-15.txt |
89c9ee4f-b1b4-4c9b-812d-fd7d3d391fef | . In particular, the plaintiff has not made any showing that the three documents in question were “in current use as of 6 February 2010,” which was an explicit limitation on the scope of the request. See First Walter Decl. Ex. 1, at 1 | National_Security_Counselors_2013-08-15.txt |
fd60c184-7d5a-4fd3-b306-a311ff548e13 | . Finally, and most fundamentally, the State Department had no obligation to continue searching its records systems based on a “lead” provided by the requester several months after the agency had already completed its search efforts. See, e.g. Campbell v. U.S. Dep’t of Justice, 164 F.3d 20, 28 (D.C. Cir | National_Security_Counselors_2013-08-15.txt |
f4a77364-3c0c-4cdb-94d4-4b373652729b | . 1998) (“[T]he court evaluates the reasonableness of an agency’s search based on what the agency knew at its conclusion rather than what the agency speculated at its inception.”); see also Iturralde v. Comptroller of the Currency, 315 F.3d 311, 315 (D.C. Cir | National_Security_Counselors_2013-08-15.txt |
88bf72ee-0ca3-401a-ac09-50c178fbb58b | . 2003) (“[T]he adequacy of a FOIA search is generally determined not by the fruits of the search, but by the appropriateness of the methods used to carry out the search.”); Mobley v. CIA, No. 11-2072, 2013 WL 452932, at *13 n.14 (D.D.C. Feb | National_Security_Counselors_2013-08-15.txt |
57d6787b-b881-4e71-b68d-f97bbad647e7 | . 7, 2013) (holding FBI had “no obligation to follow up on any leads contained in” records that FBI was not aware of “before the conclusion of the FBI’s search process”) | National_Security_Counselors_2013-08-15.txt |
07af78de-393c-42fa-9597-ae0d9ed02155 | . 70 agency’s search efforts inadequate because “such templates fall clearly within the scope of ‘all current training handbooks, manuals, guidelines, checklists, worksheets, and similar documents,’ especially given the clarification that this request was for ‘material used . . . to train personnel.’” Id. at 36–37 (emphasis in original) | National_Security_Counselors_2013-08-15.txt |
33fa7892-d7e8-4bc1-83ae-0b36676e714e | . The NSA, on the other hand, contends that these templates were not responsive to the plaintiff’s FOIA request, stating that “[t]he templates are boilerplate paragraphs, they do not contain any analysis, guidance, policy, or procedure for the NSA employee to consider or evaluate when processing a FOIA request.” Phillips Decl. . The D.C | National_Security_Counselors_2013-08-15.txt |
176de823-ae0f-4014-bdb9-10f36a970a28 | . Circuit has established that an agency “has a duty to construe a FOIA request liberally,” Nation Magazine, 71 F.3d at 890, and is “bound to read it as drafted” not as “agency officials . . . might wish it was drafted,” Miller v. Casey, 730 F.2d 773, 777 (D.C. Cir. 1984) | National_Security_Counselors_2013-08-15.txt |
7ba1d32d-6d41-48f8-8caa-ff83c8a486f9 | . In this regard, it is clear that, for example, when a FOIA requester “seek[s] all of a certain set of documents” while also “evincing a heightened interest in a specific subset thereof,” such a request “is reasonably susceptible to the broader reading” of seeking the entire set of documents despite the fact that a specific subset of documents is named. LaCedra v. Exec. Office for U.S | National_Security_Counselors_2013-08-15.txt |
30a95886-28bb-47b0-9e9d-9c425fa10b89 | . Attorneys, 317 F.3d 345, 348 (D.C. Cir. 2003); see also Nation Magazine, 71 F.3d at 890 (holding that FOIA request seeking records “‘pertaining to’ [Ross] Perot” and specifically “ask[ing] for records indexed under Perot’s name” was “sufficient to alert the agency that appellants sought information about Perot, even if it was not indexed under his name”) | National_Security_Counselors_2013-08-15.txt |
0985b34e-4d12-4452-b0b1-1a81a4b26dea | . The question presented regarding the adequacy of the NSA’s search is simply whether templates, which appear to be used primarily as boilerplate language to respond to FOIA requesters, should have been considered responsive to the plaintiff’s request for training materials. The Court concludes that, reading the plaintiff’s FOIA request “liberally,” Nation Magazine, 71 F | National_Security_Counselors_2013-08-15.txt |
84a3695f-e2a9-4dd2-8855-afff289a04e5 | .3d at 890, the templates referred to are responsive to the plaintiff’s request. 71 Templates used by agency personnel to respond properly and uniformly to FOIA requesters are “material used . . . to train [FOIA] personnel,” which is the material for which the NSA ostensibly searched. See Phillips Decl. Att. 2, No. 11-445, ECF No. 29-13 | National_Security_Counselors_2013-08-15.txt |
5c1d24cb-64dc-4959-9ff1-b9767fc0d46a | . Such templates are the functional equivalent of a guidance document instructing FOIA analysts what to say to requesters in certain situations, and thus should have been considered “similar documents,” as described in the plaintiff’s request. See Phillips Decl. Ex. 1, at 1. Indeed, the templates appear to play an important role in the guidance documents that the NSA provides to its FOIA analysts | National_Security_Counselors_2013-08-15.txt |
050d82d0-1877-4f82-91b4-7f37c41e0fdd | . See, e.g., Pl.’s First 445 Opp’n Ex. R at 2, No. 11-445, ECF No. 33-18 (“If no records are located, the proper response letter to use is a PA Negative GLOMAR.”); id | National_Security_Counselors_2013-08-15.txt |
83ae29d3-2e6f-4878-af32-faf6410e3863 | . at 3 (“If the requester only requests records pertaining to these types of activities being used against him/her, then the Case Officer should use the FOIA_Directed Energy letter and MR templates, and no search request to Security is required.”). As a result, the Court denies summary judgment to the NSA on Count Ten in No. 11-445 | National_Security_Counselors_2013-08-15.txt |
8bd355a8-a1b0-46bb-a30e-65d81ebc7afd | . * * * In sum, the Court denies summary judgment to the CIA on Counts Eighteen and Twenty in No. 11-444 with regard to the adequacy of the CIA’s search efforts. The Court further denies summary judgment to the State Department and the NSA on Counts Nine and Ten in No. 11-445, respectively, with respect to the adequacy of those agencies’ search efforts. E | National_Security_Counselors_2013-08-15.txt |
6b7435d5-70b3-47c7-8694-02e080b5bddb | . Refusals to Process Requests As discussed above, the CIA refused to process seven FOIA requests submitted by the plaintiff, and the plaintiff challenges those refusals here in four separate counts. The Court will discuss the material requested in each of the seven requests and discuss whether it was permissible for the CIA to refuse to process them. 72 1. Count Nine in No | National_Security_Counselors_2013-08-15.txt |
764e0116-da57-4d40-aebe-49c75cec581c | . 11-444: May 13, 2010 FOIA Request to the CIA First, the CIA refused to process the plaintiff’s FOIA request which sought “a representative sample of [CIA] analytical reports and memoranda presenting psychological analyses or profiles of foreign government officials, terrorist leaders, international criminals, business figures, and other intelligence targets prepared by the Medical and | National_Security_Counselors_2013-08-15.txt |
93342308-b1a4-4067-bb74-dd316346afbf | Psychological Analysis Center (‘MPAC’) or its predecessor Office of Leadership Analysis (‘OLA’) | National_Security_Counselors_2013-08-15.txt |
72e4bc86-0c88-4484-b0e8-c2117fef00a6 | .” See First Lutz Decl. Ex. M at 1. As discussed above, see supra Part I.B | National_Security_Counselors_2013-08-15.txt |
59bdf0d3-cb17-4ee2-8083-a7b4481c4b68 | .5, the plaintiff provided four “guidelines” to the CIA regarding “what we consider a ‘representative sample,’” which included (1) “[o]nly final official reports or memoranda that discuss an MPAC/OLA analyst’s conclusions about a target’s psychology,” (2) “[n]o more than twenty reports/memoranda for each year,” (3) “[f]our reports/memoranda for each year (unless less were created that year) for | National_Security_Counselors_2013-08-15.txt |
8a9db7bd-6db1-4467-ac17-94c3fa5aba4f | individuals in each category of intelligence target,” and (4) “[r]easonable variety in the intelligence targets wherever possible (e | National_Security_Counselors_2013-08-15.txt |
07b9ac59-e99d-4e82-902d-31ac167eccc4 | .g., foreign government officials should be from a variety of foreign governments, terrorist leaders should be from different terrorist organizations, etc.).” Id. at 1–2. As to the fourth guideline, NSC further stated that “[f]or the foreign government officials, we would also appreciate if possible a variety of the type of officials (e.g | National_Security_Counselors_2013-08-15.txt |
7e01a160-4782-48b8-bb76-4f18dcbd60c1 | ., some heads of state, some intelligence officials, some law enforcement officials, some financial officials, etc.).” Id. at 2. Citing “the breadth and lack of specificity of [NSC’s] request,” the CIA refused to process this request “because it would require the Agency to perform an unreasonably burdensome search.” First Lutz Decl. Ex. N at 1 | National_Security_Counselors_2013-08-15.txt |
5b8a84e6-9bdd-4719-902a-ffc358dccb58 | . In assessing this response, the Court is guided by two principles: First, “if an agency has not previously segregated the requested class of records[,] production may be required only where the agency can identify that material with reasonable effort.” Goland v. CIA, 607 F.2d 339, 353 (D.C. Cir. 1978) (internal quotation marks omitted) | National_Security_Counselors_2013-08-15.txt |
d1a8f461-2833-43fd-9a23-402dae6ead90 | . Second, “[a]n agency need not honor a request that requires ‘an unreasonably 73 burdensome search.’” Am. Fed’n of Gov’t Emps., Local 2782 v. U.S. Dep’t of Commerce, 907 F.2d 203, 209 (D.C. Cir. 1990) (quoting Goland, 607 F.2d at 353). In this case, the CIA was justified in refusing to process the plaintiff’s May 13, 2010 FOIA request because it did not “reasonably describe[]” the records sought | National_Security_Counselors_2013-08-15.txt |
5857655e-61bf-4a60-8ecc-a2ed4e4f7213 | . See 5 U.S.C. § 552(a)(3)(A). The D.C. Circuit has held that “[t]he linchpin inquiry” in determining whether a request “reasonably describes” the records sought is “whether the agency is able to determine ‘precisely what records are being requested.’” Yeager v. DEA, 678 F.2d 315, 326 (D.C. Cir. 1982) (quoting S. Rep. No. 93-854, at 10 (1974)) | National_Security_Counselors_2013-08-15.txt |
91eb55a7-ea5a-4eed-ac25-babef8ee9dc0 | . Although the plaintiff provided “guidelines” to describe the category of records it sought, those guidelines still left a significant amount of ambiguity about “precisely what records [were] being requested.” Id. (internal quotation marks omitted) | National_Security_Counselors_2013-08-15.txt |
d4cf6cff-6b61-4f6e-b9a7-3f30acbd4f20 | . Notably, although the plaintiff limited the date range and number of reports requested, the plaintiff’s request would still place an unreasonable search burden for two primary reasons. First, the plaintiff’s guideline asking for “[f]our reports/memoranda for each year (unless less were created that year) for individuals in each category of intelligence target,” see First Lutz Decl. Ex | National_Security_Counselors_2013-08-15.txt |
a8284716-0c00-48c0-b030-d348d6d431b3 | . M at 1, would require the agency to examine and sift through a larger body of records to ensure that only one report/memorandum from a given category were included from any given year. This sort of sifting and analysis is not a burden that the FOIA imposes on federal agencies. See, e.g., Assassination Archives & Research Ctr. v. CIA, 720 F. Supp. 217, 219 (D.D | National_Security_Counselors_2013-08-15.txt |
54c8cd84-0f3f-4b98-9328-c61a384eeb8b | .C 1989) (“FOIA was not intended to reduce government agencies to full-time investigators.”). Second, the plaintiff’s request asked the CIA to provide “[r]easonable variety in the intelligence targets,” and also asked for “a variety of the type of officials.” See id. at 2 | National_Security_Counselors_2013-08-15.txt |
7a27dc8a-aab9-4491-95c9-0d484964997c | . This sort of request is inherently burdensome because it requires the agency to weigh whether the variety it has provided is “reasonable” or not, which 74 superimposes a layer of subjective analysis onto the agency’s response effort which the FOIA does not require | National_Security_Counselors_2013-08-15.txt |
97b6afce-2283-492e-8328-575d6f4d3aa0 | .26 The Court appreciates the fact that this request was made because the CIA “refused to process a previous request for all official final psychological profiles produced by the offices in question,” see Pl.’s First 444 Opp’n at 18, but the plaintiff has taken one step forward and two steps back with this most recent iteration of its request | National_Security_Counselors_2013-08-15.txt |
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