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5819d55f-e8e7-4542-9eff-437a68b3f379 | . The plaintiff was correct to begin limiting its request by time and subject matter, but attempting to limit its request with vague and malleable terms like “reasonable variety” is not, as the plaintiff contends, a “narrow and rigid definition of what constitutes a representative sample.” See id. at 17 | National_Security_Counselors_2013-08-15.txt |
64ae5d3a-814e-4b60-8939-51d722424e8c | . Such terms only cloaked the plaintiff’s request in more uncertainty, and the CIA was not obligated to respond to it. The Court will grant summary judgment to the CIA on Count Nine in No. 11-444. 2. Count Eight in No | National_Security_Counselors_2013-08-15.txt |
254e4589-f255-44de-9388-e4636cc17571 | . 11-444: July 5, 2010 FOIA Request to the CIA Second, the CIA (partially) refused to process the plaintiff’s request 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 | National_Security_Counselors_2013-08-15.txt |
718ae1b8-8739-4509-875a-77b5ee4e5a61 | . In its request letter, the plaintiff laid out four methods by which the CIA could provide the information requested: (1) “[a]n index including only the ten most prolific requesters for each year,” (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 | National_Security_Counselors_2013-08-15.txt |
e340b813-5823-4aef-a5fd-8ad8c04bb54d | year | National_Security_Counselors_2013-08-15.txt |
f2aa9815-c86b-45a4-8a19-05eeffdfd4b3 | .” Id. at 1–2. The CIA eventually agreed to process the fourth option, but after the plaintiff refused 26 Additionally, requiring agencies to respond to FOIA requests like this would open them up to a whole new category of legal challenges regarding the adequacy of their search efforts | National_Security_Counselors_2013-08-15.txt |
ab36e07c-83f8-4b4e-9cf0-40559e5dcc51 | . For example, a requester could later claim that an agency did not search broadly enough because the records provided by the agency were not sufficiently varied. Such a claim would pose difficulties to both agencies and courts in deciding what level of “variety” is “reasonable” and what sort of search efforts are required to meet such a standard of reasonable variety | National_Security_Counselors_2013-08-15.txt |
cdf0507d-1c31-4436-b98b-0fc442ac70ba | . It was precisely this sort of inquiry that the “reasonably describes” requirement in the FOIA was intended to avoid. See 5 U.S.C. § 552(a)(3)(A). 75 to commit to pay the substantial duplication fees that would be required to satisfy the fourth option (i.e., all FOIA request letters submitted from 2008–2010), the CIA closed the request. See Seventh Lutz Decl. | National_Security_Counselors_2013-08-15.txt |
6f9b8172-5486-45f0-a714-01ec4dc7000b | . The plaintiff narrowly challenges the “CIA’s refusal to produce the record requested as ‘option 2’ in NSC’s request.” Pl.’s Second 444 Opp’n at 3. In this regard, the plaintiff “concedes . . . that options 1 and 3 are not viable,” but the plaintiff nevertheless maintains that “option 2 . . . is.” See id. at 3–4 | National_Security_Counselors_2013-08-15.txt |
9c7fb219-d512-446a-a345-ff87d5d29970 | . To support its contention about the feasibility of the CIA providing “[a]n index including all requesters for each year,” the plaintiff points to “CADRE processing material” that was included in a recent release made to a FOIA requester that is not a party to this lawsuit. See id. at 4 | National_Security_Counselors_2013-08-15.txt |
301bcc0b-056e-4f9b-8f7a-b766ec0f5694 | . These materials, the plaintiff states, “show[] that the results of a CADRE search can be sorted by FOIA request number,” and therefore “all that would need to be done to satisfy NSC’s request would be to conduct a search of CADRE that yielded all requests, sort the results by Case Id, and print those pages that contained the entries for 2008–2010.” Id | National_Security_Counselors_2013-08-15.txt |
bbb72adf-d8e0-4d27-acb9-61e33471d8b1 | . In this same vein, the plaintiff contends that “there is no rule that says that an agency does not have to manually manipulate database information if it is not unduly burdensome to do so, such as typing in a search term, sorting the results, and printing them.” Id. at 4–5. According to the plaintiff, “[d]oing so is not considered ‘creating a record.’” Id. at 5 | National_Security_Counselors_2013-08-15.txt |
b4d749c0-74dd-4059-86a8-e9840f63cfc7 | . The Court has already addressed this question in its previous opinion. “[T]he FOIA imposes no duty on the agency to create records.” Forsham v. Harris, 445 U.S. 169, 186 (1980); accord Yeager, 678 F.2d at 321 (“It is well settled that an agency is not required by FOIA to create a document that does not exist in order to satisfy a request.”). In this regard, “[e]lectronic database searches are . | National_Security_Counselors_2013-08-15.txt |
9c6fc222-228e-4d8d-9134-a3555bfef272 | . . not regarded as involving the creation of new records.” People for the Am. Way Found. v. U.S. Dep’t of Justice, 451 F. Supp. 2d 6, 14 (D.D.C. 2006); accord NSC I, 76 898 F. Supp. 2d at 270 (“[S]orting a pre-existing database of information to make information intelligible does not involve the creation of a new record . . . .”) | National_Security_Counselors_2013-08-15.txt |
2d76b140-f679-4c50-bbaf-55fa68db753d | . “Producing a listing or index of records, however, is different than producing particular points of data (i.e., the records themselves).” NSC I, 898 F. Supp. 2d at 271 | National_Security_Counselors_2013-08-15.txt |
81ba0fa2-25ea-473e-b751-c1ed8c7b14e9 | . “[A] FOIA request for a listing or index of a database’s contents that does not seek the contents of the database, but instead essentially seeks information about those contents, is a request that requires the creation of a new record, insofar as the agency has not previously created and retained such a listing or index.” Id.; accord People for the American Way, 451 F. Supp | National_Security_Counselors_2013-08-15.txt |
a859f83c-ef70-4342-98a9-5bd6a8753218 | . 2d at 15 (producing a “list of records returned from [a database] search” is “something that FOIA does not mandate” because “the list was not previously created or obtained by the agency” and “an order that defendant produce such a list would be tantamount to requiring defendant to create an agency record”) | National_Security_Counselors_2013-08-15.txt |
069cbd3f-1573-42ca-b9b4-1e20f6b9519c | . Thus, the CIA is correct that “NSC’s argument ignores this Court’s decision” in contending that the production of an index is not the creation of a record, where that index had not been previously created and retained. See Reply in Supp. Def.’s Mot. Summ. J. on Counts Eight and Twenty-One (“Def.’s Second 444 Reply”) at 3, No. 11-444, ECF No. 47 | National_Security_Counselors_2013-08-15.txt |
16d8e90f-4356-4820-a251-f36db4645e65 | . The CIA avers that it “does not maintain an ‘index file’ of requesters.” See Seventh Lutz Decl. .27 By pointing to CADRE’s capability to sort search results by requester identity, the plaintiff merely establishes that the CIA is capable of creating the record that the plaintiff seeks | National_Security_Counselors_2013-08-15.txt |
3b158c9f-b704-450a-b567-f5fc20c06067 | . That showing, however, is insufficient to require the agency to produce such a record because that record is still 27 The CIA does say that it creates “FOIA case logs,” which “detail certain information about requests received by the CIA on a quarterly basis (namely, the date that the FOIA request was opened, the request number, the subject of the request).” Seventh Lutz Decl. n.4 | National_Security_Counselors_2013-08-15.txt |
51b66857-a8be-4455-a7dc-70b47f48fbae | . These case logs, however, do not appear to be the type of index that the plaintiff seeks. 77 not one “that [the CIA] has in fact chosen to create and retain.” See Yeager, 678 F.2d at 321. As a result, the Court will grant summary judgment to the CIA on Count Eight in No. 11-444.28 3. Count One in No | National_Security_Counselors_2013-08-15.txt |
b32b18d1-369e-4b9c-85ee-cca8c3bc0ded | . 11-444: August 8, 2010 FOIA Requests to the CIA Third, the CIA refused to process the plaintiff’s request for “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 | National_Security_Counselors_2013-08-15.txt |
b5268552-72d0-40e8-8cfc-2dcbd4a1977c | . The 28 As the Court’s extensive discussion in its prior opinion underscores, distinguishing between (1) searching an electronic database, which is required under the FOIA if it is reasonably likely to locate records responsive to a request, and (2) creating new records or performing research, which agencies are not required to do by the FOIA, “remains somewhat muddled.” See NSC I, 898 F. Supp | National_Security_Counselors_2013-08-15.txt |
5df6ec39-12b0-477d-8c6c-d2040e203a1a | . 2d at 270. It may seem a matter of legal hair-splitting to conclude that producing a listing of search results or a listing that summarizes or describes the contents of an electronic database is akin to the creation of a record, rather than being akin to conducting a search | National_Security_Counselors_2013-08-15.txt |
755c944a-2c91-4b24-90e1-0224f5012f89 | . This conclusion, however, is weighty—steeped in myriad complexity and fraught with tension—and in the Court’s view, this conclusion has significant implications for the scope of the FOIA. The Court will further discuss the two-fold reasoning that leads to this result | National_Security_Counselors_2013-08-15.txt |
87a2306b-1e4b-4288-95a7-ab328b9d8f34 | . First, permitting a member of the public to request from an agency a listing of search results or a listing that summarizes or describes the contents of an electronic database would permit the public to requisition the resources of government agencies in a way that the FOIA did not intend. The FOIA was intended to provide access to records held by federal agencies, nothing more | National_Security_Counselors_2013-08-15.txt |
947dde06-e751-4b87-aeda-2bc51fe77af7 | . The FOIA was not intended to provide access to the mechanisms that agencies use to retrieve or aggregate information. Although the FOIA is a powerful and necessary statute, it was not intended to permit the public to commandeer agency employees as research assistants, including with respect to performing queries in electronic databases. See Assassination Archives & Research Ctr., 720 F. Supp | National_Security_Counselors_2013-08-15.txt |
94f1d732-8ae3-46b0-9cac-99d7a4dc2ebe | . at 219 (“FOIA was not intended to reduce government agencies to full-time investigators.”). The second premise of the Court’s holding focuses on the question of how the FOIA’s definition of a “record” applies to information held in a database like the one at issue in Count Eight in No | National_Security_Counselors_2013-08-15.txt |
ad8b6861-fcb2-4c2f-a002-5649f4114778 | . 11-445, which holds information extracted from FOIA requests and is used, inter alia, to locate and manage those underlying records | National_Security_Counselors_2013-08-15.txt |
cd5c02b3-0496-45ca-98db-42a7c6fd66af | . The statute’s definition is only moderately helpful and largely circular, defining “record” in relevant part as “any information that would be an agency record subject to the requirements of this section when maintained by an agency in any format, including an electronic format.” 5 U.S.C. § 552(f)(2)(A) | National_Security_Counselors_2013-08-15.txt |
451bd1cf-fcd3-4a55-ad2a-1348a2123de0 | . The obvious question left open by this statutory definition is: What “would be an agency record subject to the requirements of this section”? See id. As applied to this case, a difficulty arises because, when a database is queried, the listing which results from that query is essentially a unique permutation of smaller, individual pieces of information | National_Security_Counselors_2013-08-15.txt |
1c4b0f6f-d3a1-4bb7-b2ac-d7e30d787684 | . These individual pieces of information—for example, the data points that populate a given field of the database—are records under the FOIA. It is for this reason, as the Court previously noted, that “[t]he FOIA requires agencies to disclose all non-exempt data points that it retains in electronic databases.” NSC I, 898 F. Supp. 2d at 272 | National_Security_Counselors_2013-08-15.txt |
3925726a-c9b7-401b-ae1a-71d6918c7e8d | . The crux of the Court’s reasoning, however, is that when those individual data points are uniquely arrayed—for example, when a query returns a list of search results—that unique array (or “aggregation”) of the individual data points constitutes a distinct record | National_Security_Counselors_2013-08-15.txt |
3d699f94-d562-480d-80de-cf15169c5424 | . It is a distinct record because the particular arrangement of data conveys a unique set of information—information that is distinct from what the individual data points can convey when they are arranged differently or when they are not arranged in any particular way at all | National_Security_Counselors_2013-08-15.txt |
2aaadf81-60c9-4276-8ed3-4a62e4dad7ca | . Thus, unless the agency has “chosen to create and retain” this unique aggregation or arrangement of data points, production of such an aggregation or arrangement of data involves the creation of a new record. See Yeager, 678 F.2d at 321. Yeager’s use of the word “retain” is crucial | National_Security_Counselors_2013-08-15.txt |
7eca1cd1-a833-40fc-b19d-d512ed8065a8 | . An agency may have previously run a search identical to the one for which a requester now seeks a listing of search results, and in doing so the agency would have chosen to “create” the record in question already. Unless the agency in some way “retains” the unique aggregation of data, however, that record, in its unique form, is not preserved in the agency’s electronic version of a file cabinet | National_Security_Counselors_2013-08-15.txt |
a50d3a67-e0d9-47ee-aba0-dcaefe82cce5 | . 78 CIA explains its refusal to process this request by saying that it “does not have the capability to sort its incoming FOIA requests based on fee categories.” First Lutz Decl. . The CIA’s declarant also states that “this information [i.e | National_Security_Counselors_2013-08-15.txt |
eb8c1cc7-18e7-449e-9a7d-d3121036aac3 | ., fee category] is not included in the electronic system,” though the CIA’s declarant also avers that “[f]ee category is not a mandatory field,” and thus “this information is often not included in a FOIA request record.” Id | National_Security_Counselors_2013-08-15.txt |
60277f80-05f3-461f-be39-9f5297e6acba | . The plaintiff focuses on the ambiguities in these statements, contending that (1) the word “incoming” is unclear, and (2) the fact that fee information is only “often not included” is an indication that it is sometimes included. See Pl.’s First 444 Opp’n at 10–11 | National_Security_Counselors_2013-08-15.txt |
cc488a69-39b0-4d1f-88b1-59c7abf9cf75 | . These ambiguities, however, only address the CIA’s capability of sorting FOIA requests by fee category—they do not speak to whether the CIA has chosen to create and retain the “database listings” that the plaintiff seeks. As to this latter issue, the principles outlined above regarding the creation of records apply. See supra Part III.D.2 | National_Security_Counselors_2013-08-15.txt |
74c51112-6cdd-4e33-a76b-2088290fc505 | . It is clear from the CIA’s declaration that the agency has not chosen to create and retain such database listings, see First Lutz Decl. (“FOIA analysts would then be required to create new records that identify each request by fee category and provide these newly created records to the Plaintiff.”), and the FOIA does not obligate the CIA to create such database listings, see, e.g | National_Security_Counselors_2013-08-15.txt |
2289800f-627a-4307-855f-6eada70fdf5d | ., Forsham, 445 U.S. at 186. The plaintiff does not contest this, and in fact the plaintiff appears to recognize that creating a new record would be required to respond to these requests. See Pl.’s First 444 Opp’n at 12 (“All that a CIA FOIA analyst would have to do to fill these four requests is . . . [inter alia ] print out the remaining entries into four documents, one for each category | National_Security_Counselors_2013-08-15.txt |
5b72dfbe-610b-430f-982c-fd07e8fc688b | .” (emphasis added)). These “four documents” the plaintiff seeks are not documents the CIA “has in fact chosen to create and retain.” See Yeager, 678 F.2d at 321. Since the CIA was not required to create such records in 79 response to the plaintiff’s FOIA request, the Court will grant summary judgment to the CIA on Count One in No. 11-444. 4. Count Ten in No | National_Security_Counselors_2013-08-15.txt |
2f2e3a5c-18b3-4b37-8466-d17534e309ee | . 11-444: February 16, 2011 FOIA Request to the CIA Finally, the CIA refused to process the plaintiff’s FOIA request that sought “a copy of all [CIA] records pertaining to the IBM supercomputer ‘Watson.’” See First Lutz Decl. Ex. O at 1 | National_Security_Counselors_2013-08-15.txt |
5fef2d46-39bc-46d7-bc2d-1777290a795b | . The CIA says that it refused to process this request because it “does not specify what type of information it seeks relating to Watson; instead, the request generally seeks all information on Watson.” First Lutz Decl. (emphasis in original) | National_Security_Counselors_2013-08-15.txt |
b0ebb548-39d5-441c-987a-cc3979a2964c | . Furthermore, the CIA’s declarant states that “it is difficult to determine where responsive information would likely be located within the Agency because the request is so general,” and therefore “the CIA would be required to search every office for any documents containing the word ‘Watson.’” Id | National_Security_Counselors_2013-08-15.txt |
e5529dd5-0e55-46d4-8a11-248374edfedf | . The plaintiff opposes a grant of summary judgment to the CIA with respect to this request, contending that the CIA is applying “the misguided rule that any request that contains the word ‘pertaining to,’ ‘related to,’ or ‘relating to’ is automatically overbroad whenever [the CIA] does not feel like processing it.” Pl.’s First 444 Opp’n at 19 | National_Security_Counselors_2013-08-15.txt |
fc3a0bca-b0d5-4d63-9a0a-bfb6f775b0db | . The plaintiff then spends several pages of its brief interpreting a case cited by the CIA from the District of Massachusetts, which said that “[a] request for all documents ‘relating to’ a subject is usually subject to criticism as overbroad since life, like law, is ‘a seamless web,’ and all documents ‘relate’ to all others in some remote fashion.” See Mass. Dep’t of Pub. Welfare v. U.S | National_Security_Counselors_2013-08-15.txt |
56326c15-263a-4682-b629-c90b9d04760d | . Dep’t of Health & Human Servs., 727 F. Supp. 35, 36 n.2 (D. Mass. 1989) (Young, J.). The plaintiff concludes its exegesis by hyperbolically asserting that “[the CIA’s] own exemption arguments would categorically exempt all of its records from FOIA if Judge Young’s dicta became the law.” Pl.’s First 444 Opp’n at 22 | National_Security_Counselors_2013-08-15.txt |
cd76f935-ed97-4ac0-ad6b-4f8809cda84d | . Finally, the plaintiff argues that “[a]ny CIA professional who was familiar with the subject area of the request (computer science or, more specifically, artificial intelligence) would 80 be able to easily determine which [CIA] components were likely to have responsive records.” Id. at 23 | National_Security_Counselors_2013-08-15.txt |
86e98de4-54b4-473d-afa4-a5cd947c1896 | . In support of this latter assertion, the plaintiff cites the fact that “the NSA was able to quickly search for and retrieve records responsive to an identical request.” Id. at 23 n.9 | National_Security_Counselors_2013-08-15.txt |
975031b4-00b0-41f9-b524-347ec7b3a413 | .29 With respect to the plaintiff’s contention about the CIA’s alleged “misguided rule,” this Court previously dismissed the plaintiff’s related policy-or-practice claim, which alleged that the CIA had “a policy or practice of applying a definition of the FOIA’s ‘reasonably describes’ requirement that ‘is significantly and consistently broader than is allowed by FOIA.’” NSC I, 898 F. Supp | National_Security_Counselors_2013-08-15.txt |
0b77cb4d-c9a2-4e32-8ef3-40e293f36ffa | . 2d at 273 (quoting 444 FAC ). As the Court previously stated, “the question of whether a particular FOIA request ‘reasonably describes’ the records sought is a highly context- specific inquiry, ill-suited to abstract analysis.” Id. at 278. Thus, the Court will focus on the specific context of the plaintiff’s FOIA request for “all [CIA] records pertaining to the IBM supercomputer ‘Watson | National_Security_Counselors_2013-08-15.txt |
2b2480cf-6348-44a2-877c-536c3b940cec | .’” The plaintiff’s arguments regarding “the misguided rule” regarding requests that contain the terms “relating to” or “pertaining to”—as well as the plaintiff’s related discussion of Judge Young’s opinion in Mass. Dep’t of Pub. Welfare—miss the point | National_Security_Counselors_2013-08-15.txt |
0f8f4ffb-7318-4bf2-99a1-a6874e532fb9 | . As the CIA clarifies in its reply brief, “[t]he CIA determined that NSC’s request for all documents pertaining to Watson was overly broad because the request did not allow CIA FOIA analysts to reasonably determine where responsive records were likely to be located, not because the request contained the phrase ‘pertaining to.’” Def.’s First Reply to Opp. to Mot. for Summ. J | National_Security_Counselors_2013-08-15.txt |
937b8d2e-b100-4183-8d8d-1727916c3614 | . (“Def’s First 444 Reply) at 8, 11-444, ECF No. 27. Indeed, as the CIA’s declarant states, the CIA refused to process this request because it would require the CIA “to search every office for any documents containing 29 The plaintiff also takes a pot shot at the CIA in this regard, stating that “the NSA FOIA Office proves capable of FOIA processing feats only dreamt of at the CIA.” Pl | National_Security_Counselors_2013-08-15.txt |
4847af82-22ca-4fd2-9f90-fbb2df239180 | .’s First 444 Opp’n at 23 n.9. 81 the word ‘Watson,” which the CIA characterizes as “a massive undertaking.” First Lutz Decl. | National_Security_Counselors_2013-08-15.txt |
eb624709-484f-4476-a7d1-d9b17cd6b144 | . The plaintiff only barely addresses this burden issue by contending that “[a]ny CIA professional who was familiar with the subject area of the request (computer science or, more specifically, artificial intelligence) would be able to easily determine which [CIA] components were likely to have responsive records.” Pl.’s First 444 Opp’n at 23 | National_Security_Counselors_2013-08-15.txt |
559e4400-731e-4e97-9015-e66ae7a5e5f4 | . Yet, the plaintiff’s assertion begs the very question that underlies the CIA’s reason for refusing to process the request in the first place. The plaintiff states that “the subject area of the request” is “computer science or, more specifically, artificial intelligence,” see id., but that is not what the request itself states | National_Security_Counselors_2013-08-15.txt |
245273a3-8e92-4afc-bc04-0ecc6482d8be | . The request broadly seeks “all [CIA] records pertaining to the IBM supercomputer ‘Watson.’” See First Lutz Decl. Ex. O at 1 | National_Security_Counselors_2013-08-15.txt |
49b46528-9f23-4f74-95a5-94d3c0b4db13 | . Such a request certainly contemplates records related to the computing technology used to develop “Watson,” but the request also appears to contemplate records that have very little or nothing to do with computer science, such as records about business dealings involving “Watson,” or even informal e-mail exchanges among CIA employees about “Watson’s” appearance on the television program Jeopardy | National_Security_Counselors_2013-08-15.txt |
b25992dd-2df3-4c70-9a97-e62e8e3998e2 | ! | National_Security_Counselors_2013-08-15.txt |
67b99925-40f6-4048-8a93-38f1741bb237 | . All of these other documents would be responsive to the plaintiff’s broad request as well, even if the plaintiff is not interested in them. It is for this reason that the CIA “cannot reasonably formulate a search of [its] decentralized records system to locate responsive records.” First Lutz Decl. | National_Security_Counselors_2013-08-15.txt |
eed87fb1-87d7-4d52-a9a5-8662445f1ceb | . Relatedly, although the plaintiff focuses on the oft-cited requirement that a request must “‘enable[] a professional agency employee familiar with the subject area to locate the record with a reasonable amount of effort,’” see Pl.’s First 444 Opp’n at 23 (quoting Judicial Watch v. Exp.- Imp. Bank, 108 F. Supp. 2d 19, 27 (D.D.C | National_Security_Counselors_2013-08-15.txt |
232d08eb-1cd2-4a49-aec4-c42426c5018e | . 2000)), the plaintiff fails to recognize that this is a necessary, but not sufficient, condition of adequacy. Even where a request “identif[ies] the 82 documents requested with sufficient precision to enable the agency to identify them,” the request may still fail to “reasonably describe[]” the records sought if it is “so broad as to impose an unreasonable burden upon the agency.” See Am | National_Security_Counselors_2013-08-15.txt |
0f79de14-2fc5-4101-b6af-fb6c4ed8dbad | . Fed’n of Gov’t Emps., 907 F.2d at 209.30 The plaintiff’s February 26, 2011 FOIA request to the CIA was overly broad because it would require the CIA to “search every office for any documents containing the word ‘Watson’” because “any component is equally likely to have responsive records.” First Lutz Decl. ; see, e.g., Oglesby, 920 F | National_Security_Counselors_2013-08-15.txt |
3f2b5364-5464-4c48-8357-bbdb65495f61 | .2d at 68 (“There is no requirement that an agency search every record system.”); Marks v. U.S. Dep’t of Justice, 578 F.2d 261, 263 (9th Cir. 1978) (holding that “the FOIA does not mandate that [an agency] comply” with a request that would require “an all-encompassing search of the records of every field office”). Therefore, the Court will grant summary judgment to the CIA on Count Ten in No | National_Security_Counselors_2013-08-15.txt |
30997a36-2107-494b-9e17-148dfbf16ad5 | . 11-444.31 * * * 30 For example, if a FOIA requester sought “all CIA records printed in the English language,” the agency certainly would know what the requester was asking the agency to produce. The problem with such a request, however, is its breadth, rather than its opaqueness | National_Security_Counselors_2013-08-15.txt |
a98a79d3-8cb5-4f77-a62b-5502bcec4c7a | . 31 The plaintiff also asserts in its briefing that the CIA failed to comply with its own regulation in refusing to process each of these seven FOIA requests. See Pl.’s First 444 Opp’n at 9 | National_Security_Counselors_2013-08-15.txt |
b97d9710-be49-4377-b1cf-e87c66c6aa2e | . That regulation, discussed in the Court’s previous opinion, states: “Communications which do not meet the[] requirements [of reasonably describing the records sought and not requiring an unreasonable search] will be considered an expression of interest and the Agency will work with, and offer suggestions to, the potential requester in order to define a request properly.” 32 C.F.R. § 1900.12(c) | National_Security_Counselors_2013-08-15.txt |
b2d90e88-1e81-4c13-8d80-96fdd9c03b54 | . The plaintiff contends that the CIA “never ‘worked with’ NSC on any of these requests; it never even contacted NSC before mailing its summary cancellation letters.” Pl.’s First 444 Opp’n at 9 (emphasis in original). The plaintiff further contends that “if the Court finds that Defendant violated 32 C.F.R. § 1900 | National_Security_Counselors_2013-08-15.txt |
61fad3eb-2f8d-47ec-8ae0-bb0498c8289c | .12(c) by not contacting NSC prior to cancelling its requests, Defendant is not entitled to summary judgment on Counts 1, 8, 9, and 10.” Id. These arguments raise two issues: (1) whether the CIA violated 32 C.F.R. § 1900.12(c); and (2) whether such a violation is a basis to deny summary judgment to the CIA under the FOIA | National_Security_Counselors_2013-08-15.txt |
c7febef7-2655-4ce3-9797-fbad259f1696 | . As to the first issue, the CIA arguably did “work with, and offer suggestions to,” the plaintiff in response to some of its “expression[s] of interest.” See 32 C.F.R. § 1900.12(c) | National_Security_Counselors_2013-08-15.txt |
93eba4c7-e72a-4ea0-a096-1388a6a3a432 | . For three of the seven requests in question, the CIA “encourage[d] [NSC] to refine the scope of [its] request,” and provided specific ways in which the request could be refined in a way that would enable the agency to process it. See First Lutz Decl. Exs. N, P. Even if the CIA did violate 32 C.F.R. § 1900 | National_Security_Counselors_2013-08-15.txt |
996c1b8a-0bb5-480d-873e-0ee97ad892e6 | .12(c) in responding to the plaintiff’s other FOIA requests, however, that is not a basis to deny summary judgment to the CIA under the FOIA. As the Court noted in its previous opinion, a violation of an agency’s own regulations (even if those regulations are related to the FOIA) are not violations of the FOIA itself and “are properly addressed under the APA,” not the FOIA. See NSC I, 898 F. Supp | National_Security_Counselors_2013-08-15.txt |
75dfc6aa-c327-4864-931b-f55260b8fc67 | . 2d at 266 (citing Muttitt v. U.S. Cent. Command, 813 F. Supp. 2d 221, 229 (D.D.C. 2011)). 83 In sum, the Court grants summary judgment to the CIA on Counts One, Eight, Nine, and Ten in No. 11-444. The Court will next discuss the challenges that the plaintiff makes to certain decisions by the defendants to withhold responsive information under the FOIA’s statutory exemptions | National_Security_Counselors_2013-08-15.txt |
9957d9a6-ee6b-4754-b1de-4c3f9ff688c8 | . The plaintiff raises challenges to withholding determinations made pursuant to FOIA Exemptions 1, 2, 3, 5, and 6. The Court will discuss the arguments made about each exemption in turn. F. Exemption 1 The plaintiff challenges Exemption 1 withholding determinations made by defendants DIA and CIA | National_Security_Counselors_2013-08-15.txt |
7ae6b2cd-a078-4d24-b847-faa30b2fbbab | . As to the CIA, the plaintiff specifically challenges the withholding pursuant to Exemption 1 of (1) sixteen responsive records in full under Counts One, Two, Three, and Seven in No. 11-445, and (2) article titles from 105 responsive records under Count Three in No. 11- 443. See Pl.’s First 445 Opp’n at 5; Pl.’s In Camera Opp’n to Def.’s Mot. Summ. J. on Count Three (“Pl | National_Security_Counselors_2013-08-15.txt |
e47734d9-e30a-4fd4-961e-e6ae51f51470 | .’s First 443 Opp’n”) at 11–14, No. 11-443, ECF No. 58.32 As to the DIA, the plaintiff challenges the withholding pursuant to Exemption 1 of two documents in full related to Count Five in No. 11-445. Pl.’s First 445 Opp’n at 6. The Court will begin by discussing the legal standard applicable to Exemption 1 withholding determinations. The Court will then discuss the Exemption 1 issues raised in No | National_Security_Counselors_2013-08-15.txt |
86b262d0-b907-4ee3-a7b5-7f32d0bea1b7 | . 11-445 before turning to No. 11-443 | National_Security_Counselors_2013-08-15.txt |
a18e3d31-b969-40c6-b5a3-e38b70d3f1e3 | . As discussed above, the general rule in FOIA cases is that “[i]f 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 32 The plaintiff | National_Security_Counselors_2013-08-15.txt |
fcc82618-7080-4512-8894-6177dc01caa5 | appears to assert categorical opposition to the CIA’s Exemption 1 withholdings with respect to article titles in records responsive to the FOIA request in Count Three in No | National_Security_Counselors_2013-08-15.txt |
62d4cfb1-b2d0-47c0-b752-01371d49503e | . 11-443, though the plaintiff does “concede[] that some of the information withheld under Exemption (b)(1) is properly classified.” See Pl.’s First 443 Opp’n at 11 | National_Security_Counselors_2013-08-15.txt |
70c0db47-10e2-454a-893b-f5bf12fad851 | . The plaintiff contends that “the Court has no way of knowing which of the withheld information actually meets the criteria for classification, because CIA’s Vaughn index entries consist generally of nothing more informative than a parroting of the statutory standard.” See id. at 11–12. 84 judgment is warranted on the basis of the affidavit alone.” ACLU/DOD, 628 F.3d at 619 | National_Security_Counselors_2013-08-15.txt |
270da521-f053-46c5-9323-a74d1ced50e1 | . FOIA Exemption 1 provides that “matters that are” either “specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy” or “are in fact properly classified pursuant to such Executive order” are exempt from production under the FOIA. See 5 U.S.C. § 552(b)(1). “[I]n the FOIA context, [the D.C | National_Security_Counselors_2013-08-15.txt |
05fd7ab0-22e2-4e6d-86d5-d30c528901b2 | . Circuit has] consistently deferred to executive affidavits predicting harm to the national security, and have found it unwise to undertake searching judicial review.” Ctr. for Nat’l Sec. Studies, 331 F.3d at 927. “The CIA’s arguments need only be both ‘plausible’ and ‘logical’ to justify the invocation of a FOIA exemption in the national security context.” ACLU/DOD, 628 F | National_Security_Counselors_2013-08-15.txt |
ef5b756a-044f-4d07-81ad-285bcaeca0b6 | .3d at 624 (quoting Wolf v. CIA, 473 F.3d 370, 374–75 (D.C. Cir. 2007)); accord Morley, 508 F.3d at 1124 (“[T]he text of Exemption 1 itself suggests that little proof or explanation is required beyond a plausible assertion that information is properly classified.”). 1. Exemption 1 Withholdings in No. 11-445 (CIA and DIA) In No | National_Security_Counselors_2013-08-15.txt |
93f34324-10da-46c3-8614-5aad6d45a856 | . 11-445, the plaintiff broadly argues that the declarations offered by the CIA and the DIA to establish the applicability of Exemption 1 are insufficient because they only contain “a simple recitation of the statutory standard.” See Pl.’s First 445 Opp’n at 7; accord id | National_Security_Counselors_2013-08-15.txt |
818d882e-1e45-477e-8b0d-e928775bbfcd | . at 8–9 (“Simply stating without any support that information is related to intelligence sources and methods is not sufficient, regardless of the deference given to agencies in national security matters.”) | National_Security_Counselors_2013-08-15.txt |
69eaa2d2-09ab-4ce0-ac19-f0e5247c7807 | . In this regard, the plaintiff asks the Court to “order [the CIA and DIA] to promptly file a more sufficient Vaughn index consisting of something more than a parroting of the statutory standards.” Id. at 9 | National_Security_Counselors_2013-08-15.txt |
ca69e287-25d3-4161-8347-dd668dfe8f72 | . The plaintiff contends that this “something more” should, inter alia, “include the date of classification of each document and the person who classified it, to ensure that the information was classified in accordance with Executive Order 13526.” Id. 85 The CIA’s declarant explains that information withheld under Exemption 1 in No | National_Security_Counselors_2013-08-15.txt |
a89b4c92-d9bc-4c99-88bf-c9b5e0891e16 | . 11-445 falls into two categories: (1) “information on unacknowledged persons and activities,” or (2) “the specifics of FOIA requests referred from other government agencies for which the CIA sought non-attribution.” Third Lutz Decl. | National_Security_Counselors_2013-08-15.txt |
e9873068-a267-4dca-8541-51ba065f8e2a | . The CIA’s declarant clarifies that both categories of information “implicat[e] intelligence activities,” and the documents in question specifically contain (1) “acronyms which disclose the CIA’s involvement in geographic locations and intelligence operations not officially acknowledged,” and (2) “information that would disclose the fact that the CIA collected intelligence on certain individuals | National_Security_Counselors_2013-08-15.txt |
b58f42a0-b096-4dd6-ab5c-be33d7cf190c | and event[s] which have not been officially acknowledged | National_Security_Counselors_2013-08-15.txt |
c724a1ee-97b8-44d6-a15b-0ebd694d4869 | .” Id. , 30. The CIA has also provided a document-by- document Vaughn index, which describes the general character of each withheld document and the exemption or exemptions claimed for each. See Third Lutz Decl. Ex. K, No. 11-445, ECF Nos. 29-2 through 29-7 | National_Security_Counselors_2013-08-15.txt |
4c1d2641-f50b-4ab7-890d-5db7dc15d0ab | . With respect to the two documents withheld under Exemption 1 by the DIA, the agency states in its Vaughn index that both documents “consist[] of a work tasking within the Intelligence Community on a classified subject matter” and “would reveal an intelligence sources and methods [sic] and would therefore compromise the intelligence information collection mission effectiveness of the intelligence | National_Security_Counselors_2013-08-15.txt |
f8e49442-4f77-49d6-a4ee-a83177737600 | community | National_Security_Counselors_2013-08-15.txt |
08cfb654-5851-4bb0-912c-c159e8c9b373 | .” See Supp. Decl. of Alesia Y. Williams (Nov. 8, 2012) (“Second Williams Decl.”) Ex. A at 18, 24, No. 11-445, ECF No. 35-1. Upon consideration of the sworn declarations and accompanying Vaughn indices provided by the CIA and DIA, the Court is satisfied that both agencies have provided “a plausible assertion that information is properly classified.” See Morley, 508 F.3d at 1124 | National_Security_Counselors_2013-08-15.txt |
7f1840df-8ae1-4e89-8193-4ce0427fdfb3 | . It is reasonably clear from the materials provided by both agencies that the information withheld pursuant to Exemption 1 is properly classified because it would compromise important 86 intelligence-gathering activities if it were disclosed | National_Security_Counselors_2013-08-15.txt |
7fea6ee0-89f6-4b57-93c7-4e8c9c582820 | . As to the CIA, the plaintiff concedes that “[t]o the extent the withheld information” contains (1) “acronyms which disclose the CIA’s involvement in geographic locations and intelligence operations not officially acknowledged,” and (2) “information that would disclose the fact that the CIA collected intelligence on certain individuals and event[s] which have not been officially acknowledged,” | National_Security_Counselors_2013-08-15.txt |
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