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ec29d838-768f-48c3-807b-5f28cb77df51 | . The CIA called this contention “factually inaccurate” in its reply brief, but the CIA also admitted in its reply brief that it has adopted a very broad understanding of “administrative routing information.” See Def.’s First 444 Reply at 16 | National_Security_Counselors_2013-08-15.txt |
1dc49cad-d57d-404e-8bda-8a1cbfe90c33 | . According to the CIA, “administrative routing information” includes not only “notations indicating which offices and analysts ultimately received and processed [FOIA] requests,” but also “recommendations from FOIA analysts and attorneys about how requests should be administratively processed and routed.”53 See id. at 16–17 | National_Security_Counselors_2013-08-15.txt |
352a1a70-7b9f-468e-b370-7102fc9bf548 | . After learning of what it calls the 52 The Court need not decide this issue because, as discussed above, the plaintiff has agreed not to challenge the CIA’s withholding of author names in No. 11-443. See supra note 37 (“The plaintiff agreed to limit the scope of its challenge in Count Three of No. 11-443 to ‘the redaction of titles in the Studies of Intelligence [sic] tables of contents | National_Security_Counselors_2013-08-15.txt |
9e841ad7-4215-4c71-8d12-d239a8a80ab9 | .’ (quoting Second Lutz Decl. )). 53 The CIA had not indicated, prior to its reply brief in No. 11-444, that the term “administrative routing information” included recommendations about how to process FOIA requests. Indeed, the CIA’s opening brief strongly implied that it was only withholding such processing recommendations under Exemption 5 and the deliberative process privilege. See Def | National_Security_Counselors_2013-08-15.txt |
50463425-8936-45f1-8a6e-a84b9ad36909 | .’s First 444 Mem. at 31. The CIA’s declaration simply stated that the information withheld under the CIA Act “contain[ed] information regarding the organization, functions, names, and official titles of personnel employed by the CIA, as well as internal organizational information such as file numbers.” First Lutz Decl. | National_Security_Counselors_2013-08-15.txt |
dc069b0a-70ab-49e2-b2dc-0af66033210b | . Likewise, the CIA’s Vaughn index described the “administrative routing information” as “internal organizational data that could reveal directorate offices, substructures and/or the organizational structure of the CIA.” See, .e.g., First Lutz Decl. Ex. DD at 2–3, 7, 11, 15 | National_Security_Counselors_2013-08-15.txt |
7387ba60-7c68-44f4-a75e-f748ac3fc5f3 | . If the “administrative 114 “remarkable breadth of [the CIA’s] definition of such a mundane term,” the plaintiff contended in its sur-reply brief that these recommendations and comments from FOIA analysts are beyond the scope of § 403g. See Pl.’s Sur-Reply to Def.’s Mot. Summ. J. on Counts 1, 9, 10, 17, 18 and 20 (“Pl.’s 444 Surreply”) at 2, No. 11-444, ECF No. 29. The Court agrees | National_Security_Counselors_2013-08-15.txt |
367c7f70-c8e4-4017-8db3-4b17441b0f78 | . As the above discussion makes plain, “administrative routing information” regarding FOIA requests only falls within § 403g if such information would reveal something about the CIA’s personnel or internal structure, e.g., the names or titles of employees handling or receiving FOIA requests and the organizational structure of personnel within CIA offices or components | National_Security_Counselors_2013-08-15.txt |
5c17fae2-a68b-4193-b395-ebd113cf3be7 | . Recommendations from FOIA analysts about how to process FOIA requests, however, are not solely administrative, personnel-related, or structural. Such recommendations are quite obviously substantive to the extent that they contain suggestions about what information to withhold and what information to disclose to the public | National_Security_Counselors_2013-08-15.txt |
70f18066-56ea-497d-a24a-91ea8a55c8bf | . Certain details within these recommendations may indeed be administrative or personnel-related in nature and thus exempt from disclosure under § 403g, but if the CIA wants to withhold such information, it must specifically describe the information in question and explain why it would reveal “the organization, functions, names, official titles, salaries, or numbers of personnel employed by the | National_Security_Counselors_2013-08-15.txt |
edd02ec8-d8ea-45e1-aefb-f5719f98fdd8 | Agency | National_Security_Counselors_2013-08-15.txt |
cc03f3eb-f532-4ef1-8f89-43cae470931b | .” See 50 U.S.C. § 403g. This the CIA has not done, leaving the Court to speculate, without any basis in the record. The CIA cannot simply lump all FOIA processing materials into the vague and expansive category of “administrative routing information.” Fourth, in discussing the CIA’s Exemption 3 redactions with respect to Count Eighteen in No | National_Security_Counselors_2013-08-15.txt |
4e8d7ed6-e049-4c1c-9fa9-21f1785232c4 | . 11-444, the plaintiff contends that the CIA also wrongfully redacted some responsive information as “non responsive.” See Pl.’s First 444 Opp’n at 39. Essentially, the plaintiff routing information” had indeed been limited to such items, the CIA’s Exemption 3 withholdings all would have been appropriate. 115 complains that the CIA interpreted its request too narrowly | National_Security_Counselors_2013-08-15.txt |
3f1398c6-2a53-4a05-b399-91ecfa860f54 | . The Court has previously discussed the principles that apply in determining whether an agency properly interpreted the scope of a FOIA request. See supra Part III.E.4. The bottom line of those principles is 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 . . | National_Security_Counselors_2013-08-15.txt |
c9f027b3-0926-4256-8a71-a25989ff41ac | . might wish it was drafted,” Miller, 730 F.2d at 777. The FOIA request at issue in Count Eighteen in No. 11-444 sought “a copy of all [CIA] records pertaining to the search tools and indices available to the Office of Information Management Services (‘IMS’) for conducting searches of its own records in response to FOIA requests.” First Lutz Decl. Ex. Q at 1 | National_Security_Counselors_2013-08-15.txt |
404c568b-c8ad-4238-8ef9-4cbd7292c94e | . To clarify the scope of the request, the plaintiff specified two categories of records that would be responsive to the request: (1) “Records which describe the search tools and indices,” and (2) “The actual contents of the indices.” Id | National_Security_Counselors_2013-08-15.txt |
053628a1-da24-4e89-90fc-303975d71419 | . The CIA withheld the following information as non-responsive from two documents (C05665569 and C05665570): (a) “information relating to case management workflow, directorate level workflow, training available to CADRE users, and troubleshooting help with technical issues while using CADRE,” and (b) “information relating to training and access to SMART2, creating a new job in SMART2, application | National_Security_Counselors_2013-08-15.txt |
72f062be-f0d6-4019-8a0b-6c9ea238f216 | of Records Control Schedules, and archiving capabilities | National_Security_Counselors_2013-08-15.txt |
419cc79f-65fa-4688-9226-69dd3cccf33f | .” See First Lutz Decl. Ex. DD at 137, 141. Keeping in mind the CIA’s obligation to construe the plaintiff’s FOIA request liberally, see Nation Magazine, 71 F.3d at 890, it appears that at least some of the information withheld as non-responsive is, in fact, responsive | National_Security_Counselors_2013-08-15.txt |
c1eb1852-79f7-4096-bfa0-f86b27129893 | . Clearly, any record containing information about the capabilities of the search tools and indices in question would “describe” those search tools and indices, and thus would be responsive to the plaintiff’s request. Similarly, any record containing information about how to use the search tools and indices in question (e.g | National_Security_Counselors_2013-08-15.txt |
f83f351a-c451-4824-b1cf-fc324e87515f | ., training materials for 116 users) would also “describe” those search tools and indices.54 The plaintiff’s request for “[r]ecords which describe the search tools and indices,” see First Lutz Decl. Ex | National_Security_Counselors_2013-08-15.txt |
c8d2d455-983a-487c-8b88-9623e9326f6f | . Q at 1, fairly contemplated any records containing information about the functionality and operation of these search tools and indices, and therefore the CIA must release such records to the plaintiff to the extent that they are not exempt from disclosure | National_Security_Counselors_2013-08-15.txt |
1182d415-3494-4c8c-b56f-2d04bd32a290 | .55 Finally, the plaintiff challenges the CIA’s decision to withhold the name of a CIA employee in one responsive document under the CIA Act and Exemption 3.56 See Def.’s First 444 Mem. at 32–33; Pl.’s First 444 Opp’n at 30 | National_Security_Counselors_2013-08-15.txt |
917231a0-b773-4a9d-b2c2-f9c64dccda28 | . The plaintiff contends, “given that the name is at most six characters in length,” and “[g]iven the high likelihood that this is simply a first name,” the CIA Act does not apply because that statute was “designed to protect the identities of people.” See Pl.’s First 444 Opp’n at 30. The CIA responds that the plain language of the CIA Act exempts from disclosure “names . . | National_Security_Counselors_2013-08-15.txt |
800a16d2-fbea-497a-9f98-3125608909bb | . of personnel employed by the Agency,” see 50 U.S.C. § 403g, and adopting the plaintiff’s proposed rule regarding first names “would place an unreasonable burden on the CIA to determine whether a first name should be redacted based on how common the name is and whether the document at issue provides other potentially identifying information about the employee.” Def.’s First 444 Reply at 15 | National_Security_Counselors_2013-08-15.txt |
5d5d3cc3-1505-4930-9a84-b95d6f787c7a | . 54 The Court is unsure whether information about “workflow” or “application of Records Control Schedules” would be responsive to the plaintiff’s request without a better understanding of what those terms mean. 55 The plaintiff also asks the Court to “order [the CIA] to distinguish between the Exemption (b)(3) redactions and the ‘non-responsive’ redactions.” Pl.’s First 444 Opp’n at 35 | National_Security_Counselors_2013-08-15.txt |
8af64257-5a4e-4ae7-827e-8918d3d1b99e | . This issue, however, has not been briefed by the parties specifically with respect to the FOIA request at issue in Count Eighteen of No. 11-444. This is likely because the CIA has previously instituted a categorical policy of indicating the basis for redactions at a document level, rather than a redaction level, as discussed above. See supra Part III.C.2 | National_Security_Counselors_2013-08-15.txt |
addce0d5-7e66-43f6-b6eb-679aa036cba1 | . In light of the Court’s holding that “[t]he CIA must make a case-by-case determination regarding the technical feasibility of indicating a claimed exemption associated with a deletion ‘at the place in the record where such deletion is made,’” id. (quoting 5 U.S.C. § 552(b)), the CIA will be required to make such a case-by-case determination with respect to the request at issue in Count Eighteen | National_Security_Counselors_2013-08-15.txt |
4a57e46d-1d8a-4024-b71b-56ad55a0d61d | . 56 The CIA did not invoke Exemption 6 in its Vaughn index or its declaration to withhold the employee’s name, though the plaintiff discusses in its opposition brief Exemption 6 as a potential basis for withholding the name. See Pl.’s First 444 Opp’n at 30. 117 The Court agrees with the CIA on this issue | National_Security_Counselors_2013-08-15.txt |
643770ba-b457-46c4-9e02-0a7d2b25a4dc | . First, although the plaintiff asserts that “it would be virtually impossible to use [a first name] to identify someone,” see Pl | National_Security_Counselors_2013-08-15.txt |
c55ecd56-92f5-4857-af30-60eff24401e3 | .’s First 444 Opp’n at 30, the CIA is correct that the ability to identify a person by a first name alone depends on how common the first name is and whether the record provides other information that, in combination with a first name, would permit someone to identify the employee | National_Security_Counselors_2013-08-15.txt |
970fada5-a281-43e7-aea5-2cff8bbc5c91 | . Second, the plaintiff contends that the CIA Act was “not designed to be used to withhold such things as first names, nicknames, pseudonyms, or initials,” Pl.’s First 444 Opp’n at 30,57 but the D.C. Circuit has held otherwise. See Military Audit Project v. Casey, 656 F.2d 724, 749 (D.C. Cir | National_Security_Counselors_2013-08-15.txt |
99427be4-6ae6-42bb-a528-2e9bb76a51e5 | . 1981) (“[D]ocuments that might disclose the names, initials, pseudonyms and official titles of CIA personnel . . . are properly withheld by the government.” (footnote omitted)). Since the disclosure of a CIA employee’s first name may disclose the employee’s identity, the CIA is permitted to withhold such information under the CIA Act, 50 U.S.C. § 403g | National_Security_Counselors_2013-08-15.txt |
fc88961d-c5fe-4f2d-8815-bdcc939de32e | . * * * In sum, the Court holds that the CIA’s proposed construction of 50 U.S.C. § 403g is overly broad. As a result, the CIA has inappropriately withheld information under FOIA Exemption 3 | National_Security_Counselors_2013-08-15.txt |
87d9f9fd-e930-4716-a7ee-f0d742521022 | . Specifically, the following categories of information referred to by the CIA in its declarations and briefs are presumptively not exempt from disclosure under § 403g, although, as noted below, may be subject to other exemptions: (1) “internal templates utilized by the [CIA] in tasking FOIA requests,” Third Lutz Decl | National_Security_Counselors_2013-08-15.txt |
1ebf76ef-7058-4c6b-8ece-28b34264cb90 | . ; (2) “internal rules, policies and procedures governing FOIA processing including classification, referrals, coordinations, and fees,” id.; (3) 57 The plaintiff also makes a similar contention in No. 11-443, asserting that “[p]seudonyms simply do not count” as “names . . . of personnel employed by the Agency,” “especially when they are clearly identified as such.” See Pl | National_Security_Counselors_2013-08-15.txt |
684e8fdb-64d1-4b47-aeba-37471c8c80b2 | .’s First 443 Opp’n at 10. This argument is incorrect under Military Audit Project for the same reasons the plaintiff’s related argument in No. 11-444 is incorrect. See Military Audit Project v. Casey, 656 F.2d 724, 749 (D.C. Cir. 1981) (“[D]ocuments that might disclose the names, initials, pseudonyms and official titles of CIA personnel . . . are properly withheld by the government | National_Security_Counselors_2013-08-15.txt |
3f5c5517-7d16-4da1-ac1d-d8580ed31b4e | .” (emphasis added) (footnote omitted)). 118 “organizational information revealing CIA’s internal system of decentralized information management,” id.; (4)“[i]nternal information concerning ways in which CIA is able to store and retrieve information,” First Lutz Decl. Ex | National_Security_Counselors_2013-08-15.txt |
133b8445-a117-4c9b-bfa5-39e5a99fb0a8 | . DD at 137, 142; (5) “information about the CIA’s core functions,” including “intelligence activities, intelligence sources and methods, and the collection, analysis, and dissemination of foreign intelligence,” Second Lutz Decl. ; and (6) “recommendations from FOIA analysts and attorneys about how requests should be administratively processed and routed,” Def.’s First 444 Reply at 16–17 | National_Security_Counselors_2013-08-15.txt |
53ad9264-b182-49f5-9fe3-f1b454d28720 | . Accordingly, the Court denies summary judgment to the CIA, in part, with respect to Count Three in No. 11-443; Counts Seventeen and Eighteen in No. 11-444; and Counts One, Two, Three, Seven, and Thirteen in No. 11-445 | National_Security_Counselors_2013-08-15.txt |
89d8370f-addd-4e9a-a1d5-3982da5594cf | . The Court denies summary judgment to the CIA on these counts only with respect to the CIA’s decision to withhold information in the above six categories under § 403g and Exemption 3 and the CIA’s decision to withhold responsive information as “non responsive” information, as discussed above. Finally, the Court grants summary judgment to the CIA in part on Count Seventeen in No | National_Security_Counselors_2013-08-15.txt |
8c6337ce-ff4b-4f45-81d7-5ee8a784f685 | . 11-444, with respect to the agency’s decision to withhold the first name of a CIA employee from one document under the CIA Act. Some of the information in the above six categories, however, may in fact be properly exempt from disclosure under § 403g—a possibility that the plaintiff itself recognizes. See, e.g., Pl.’s First 445 Opp’n at 17 n.13 | National_Security_Counselors_2013-08-15.txt |
0a591f3f-f657-4b0f-8f81-3abd0528f7cb | . The Court will therefore provide the CIA another opportunity to justify, consistent with this opinion, the agency’s decision to withhold the information in the above six categories under § 403g and FOIA Exemption 3. In this regard, conclusory or generalized descriptions will not suffice | National_Security_Counselors_2013-08-15.txt |
6c2ad48a-39df-470d-97c1-dd239a1cbba6 | . The CIA must specifically describe the withheld information and explain why it would reveal “the organization, functions, names, official titles, salaries, or numbers of personnel employed by the Agency.” See 50 U.S.C. § 403g | National_Security_Counselors_2013-08-15.txt |
3da20bf8-197c-411d-9b4b-115459da309b | . The CIA is 119 also directed to release to the plaintiff any information in documents C05665569 and C05665570 which describes how the search tools and indices available to IMS operate to the extent such information is not exempt from disclosure. 2 | National_Security_Counselors_2013-08-15.txt |
5395a849-4fc4-441b-9b62-1992dcaa0ff2 | . DIA Next, the plaintiff challenges the DIA’s decision to withhold responsive information under Exemption 3 by invoking the National Security Act, 50 U.S.C. § 403-1(i). See Pl.’s First 445 Opp’n at 17–22. The plaintiff argues that the DIA “lacks the authority to invoke the National Security Act on its own to withhold information not protected by 10 U.S.C. § 424.” Id. at 17 | National_Security_Counselors_2013-08-15.txt |
7a023588-7548-405a-a438-033060915286 | . The premise of this contention is that, although the National Security Act originally “vested the Director of Central Intelligence (‘DCI’) with the authority to protect ‘intelligence sources and methods,” the act was amended in 2004. See id. This amendment, according to the plaintiff, “divest[ed] this authority from the DCI,” and transferred the authority to the ODNI. See id. at 17–18 | National_Security_Counselors_2013-08-15.txt |
bd75a6ba-750f-4891-8e54-1eae9838e952 | . Thus, the plaintiff argues that “after 2004 the ODNI is the only agency authorized by statute to claim the National Security Act as a withholding statute, and any other agency seeking to invoke that statute to withhold records under Exemption (b)(3) must be expressly authorized to do so by that office.” Id. at 18 | National_Security_Counselors_2013-08-15.txt |
d1360f27-eafd-4a6a-af6a-d94285f9980a | . This challenge by the plaintiff is now moot, however, because the DIA “has decided to withdraw its assertions of Section 403-1(i)” since “the National Security Act was asserted in each instance as an alternative ground for withholding.” See Defs.’ First 445 Reply at 14 | National_Security_Counselors_2013-08-15.txt |
9591ce7b-023c-446c-a7a2-2e1cca739876 | .58 58 In its supplemental declaration, the DIA is non-specific about the alternative grounds for withholding the information that was originally also withheld pursuant to the National Security Act | National_Security_Counselors_2013-08-15.txt |
073d5bb8-0b92-42a9-a29f-011333768044 | . All that the DIA says in its supplemental declaration is that “each assertion of Section 403-1(i) was made in conjunction with another FOIA exemption” and thus “this Exemption 3 statute is not a critical element of DIA’s defense.” See Second Williams Decl. | National_Security_Counselors_2013-08-15.txt |
4d55d380-39e8-4a32-b45a-6ab74bba9a1a | . It appears from a review of the DIA’s supplemental Vaughn index that any information previously withheld under the National Security Act is now being withheld by the DIA pursuant to Exemption 1; 10 U.S.C. § 424 and Exemption 3; Exemption 5; and/or Exemption 6. See Second Williams Decl. Ex. A | National_Security_Counselors_2013-08-15.txt |
8f1340b5-1baf-4650-a169-94e0701aedab | . 120 Therefore, the Court need not decide whether the DIA has the independent authority to invoke the National Security Act as an Exemption 3 withholding statute. 3. ODNI Finally, the plaintiff challenges the ODNI’s decision to withhold certain portions of e- mail addresses of CIA and ODNI employees under the CIA Act. See Pl.’s First 445 Opp’n at 22–23 | National_Security_Counselors_2013-08-15.txt |
fd047087-b687-4082-8733-2be860db0d2a | . Although the plaintiff “does not challenge ODNI’s invocation of the CIA Act to withhold names and full email addresses of CIA and ODNI employees,” the plaintiff “ask[s] that the domains (i.e., that part after the ‘@’ sign) of the email addresses be released.” Id. at 22 (emphasis in original) | National_Security_Counselors_2013-08-15.txt |
d1b31c68-5a9c-48f7-bef8-f12dfc83c6b2 | . The plaintiff contends that “[r]elease of enough data to determine the agency affiliations of the respective participants in these email chains—the only information deducible from such a release—will not violate the CIA Act.” Id. at 22–23. The plaintiff likewise contends that “Exemption (b)(6) does not apply to the challenged ODNI withholdings.” Id. at 23 | National_Security_Counselors_2013-08-15.txt |
3a874929-5560-4416-97f5-e878140bd8f6 | . In the interest of efficiency, the Court will discuss the plaintiff’s arguments under both Exemption 3 and Exemption 6 in assessing the ODNI’s withholding of domain name information from e-mail addresses.59 The ODNI makes two responses to the plaintiff’s Exemption 3 and Exemption 6 arguments | National_Security_Counselors_2013-08-15.txt |
0aafe95e-88eb-40be-b7cf-1911bada198c | . First, the ODNI argues that “NSC cannot cite to a single case in which a court has held that the CIA Act does not protect CIA and ODNI employees’ full email addresses.” Defs.’ First 445 Reply at 17. Second, the ODNI argues that “NSC also fails to show why the full email addresses are not protected by Exemption (b)(6).” Id | National_Security_Counselors_2013-08-15.txt |
a752fc08-cfa6-4bac-8598-c6ec441a98f6 | . At the outset, both of these arguments misperceive the allocation of the burden on the parties in the summary judgment context | National_Security_Counselors_2013-08-15.txt |
83389c6d-fc7d-4de0-b94d-664549f3b0de | . As discussed above, when an agency’s response to a FOIA request is to withhold responsive 59 As discussed below, FOIA Exemption 6 applies to “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6) | National_Security_Counselors_2013-08-15.txt |
72f68c57-3e92-4d60-b327-12ef6728d374 | . 121 records, either in whole or in part, the agency “bears the burden of proving the applicability of claimed exemptions.” ACLU/DOD, 628 F.3d at 619. It is not the requester’s burden to disprove the applicability of claimed exemptions, as the ODNI frames its opposition. That said, the only case that the Court can find to address this question held that “[t]he CIA Act . . . plainly protects . . | National_Security_Counselors_2013-08-15.txt |
4a9fe92c-f994-439c-8b54-9019e0c953db | . employee names, titles, signatures and identification numbers; telephone numbers, fax numbers, e-mail addresses and street addresses; internal URLs; and other internal organizational information.” James Madison Project v. CIA, 607 F. Supp. 2d 109, 126 (D.D.C. 2009) (emphasis added) | National_Security_Counselors_2013-08-15.txt |
c85eb5c1-5237-4ebb-abdb-bbac5d5bf096 | . The James Madison Project case, however, did not specifically address the applicability of the CIA Act to e-mail domain information, as opposed to full e-mail addresses. Such domain information, as the plaintiff points out, is likely “shared by a large group of federal employees.” Pl.’s Sur-Reply to Defs.’ Mot. Summ. J. on Counts 1, 2, 3, 5, 6, 7, 8, 9, 10, and 13 (“Pl.’s 445 Surreply”) at 3, No | National_Security_Counselors_2013-08-15.txt |
77d0fb91-4bd1-44e4-9b7e-28fc536d3935 | . 11-445, ECF No. 38. As a result, the domains likely do not constitute “personal identifiers,” which was the ODNI’s stated reason for withholding the full e-mail addresses. See Hackett Decl. . Likewise, domain information would not reveal the “names . . . of personnel employed by the [CIA].” 50 U.S.C. § 403g | National_Security_Counselors_2013-08-15.txt |
ecb8b0d0-5461-4ac4-ab83-336c7d89ec38 | . It is plausible, however, that even domain information could reveal information about the CIA’s “internal structure.” See Phillippi, 546 F.2d at 1015 n.14. For example, e-mail domain information could reveal how personnel are organized within the CIA, and in that event such information would fall within the protection of 50 U.S.C. § 403g | National_Security_Counselors_2013-08-15.txt |
f76d7259-74ac-4a72-8e8e-463e1b7b12b9 | . The ODNI, however, does not advance this argument in attempting to justify its withholding of e-mail addresses. Additionally, the ODNI makes no attempt to argue or establish that e-mail domain information, as distinct from the rest of the information in employees’ e-mail addresses “would constitute a clearly unwarranted invasion of personal privacy.” See 5 U.S.C. § 552(b)(6) | National_Security_Counselors_2013-08-15.txt |
ddb1ff0f-97b8-4978-8e9f-072cf135e5a3 | . Therefore, the Court will 122 deny summary judgment to the ODNI on Count Six in No 11-445 with respect to the withholding of e-mail domain information under Exemption 3 and/or Exemption 6 and will permit the agency to submit a supplementary declaration explaining why e-mail domain information is exempt from disclosure under either or both exemptions. J | National_Security_Counselors_2013-08-15.txt |
69daadf2-e125-4a0a-89c7-0bd7f79a9a08 | . Exemption 5 The plaintiff next challenges the withholding of information by the CIA, DOJ, DIA, and ODNI under FOIA Exemption 5. See Pl.’s First 445 Opp’n at 24–34; Pl.’s First 444 Opp’n at 31–35. FOIA Exemption 5 protects from disclosure “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.” 5 U.S.C | National_Security_Counselors_2013-08-15.txt |
a91a745e-b622-4a10-b82f-a566d99fe14c | . § 552(b)(5). To be properly withheld under Exemption 5, “a document must . . . satisfy two conditions: its source must be a Government agency, and it must fall within the ambit of a privilege against discovery under judicial standards that would govern litigation against the agency that holds it.” Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8 (2001) | National_Security_Counselors_2013-08-15.txt |
8b08455e-b83e-4da3-aab2-aca5943080a7 | . The four defendant agencies listed above cited Exemption 5 to withhold information under the deliberative process privilege, and the attorney- client privilege, both of which are incorporated into Exemption 5. See, e.g., Loving v. Dep’t of Def., 550 F.3d 32, 37 (D.C. Cir. 2008) | National_Security_Counselors_2013-08-15.txt |
da054da0-7941-41a5-8131-de6103fb147c | . The DIA has also apparently invoked the attorney work- product doctrine in its sworn declaration, though the DIA did not advance this argument in its summary judgment motion. Compare Williams Decl. (“DIA asserted Exemption 5 to withhold this information pursuant to the attorney client privilege and/or the attorney-work product privilege . . . .”), with Defs.’ First 445 Mem | National_Security_Counselors_2013-08-15.txt |
76d2dbe8-7ea3-4989-b9b2-3661b0c6c4b8 | . at 25 (“DIA has withheld information on the basis of the deliberative process and attorney-client privileges.”). The Court will first discuss the plaintiff’s challenges regarding material withheld under the deliberative-process privilege before turning to the attorney-client privilege and the attorney work-product doctrine. 123 1 | National_Security_Counselors_2013-08-15.txt |
f2355299-fe5f-4a74-89e1-e2c6f02029c0 | . Deliberative-Process Privilege “The deliberative process privilege protects ‘documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.’” Loving, 550 F.3d at 38 (quoting Klamath Water, 532 U.S. at 8) | National_Security_Counselors_2013-08-15.txt |
ed1fc7ad-6f29-4a20-93c5-74d56c4aca95 | . “To qualify for Exemption 5 protection under the deliberative process privilege, ‘an agency’s materials must be both predecisional and a part of the deliberative process.’” Nat’l Inst. of Military Justice v. U.S. Dep’t of Def., 512 F.3d 677, 680 n.4 (D.C. Cir. 2008) (quoting Formaldehyde Inst. v. Dep’t of Health & Human Servs., 889 F.2d 1118, 1121 (D.C. Cir. 1989)) | National_Security_Counselors_2013-08-15.txt |
75fe7dc6-b12b-4b76-8610-8be4dc9e6b2c | . The Supreme Court has acknowledged that “[t]he deliberative process privilege rests on the obvious realization that officials will not communicate candidly among themselves if each remark is a potential item of discovery and front page news,” and the privilege’s “object is to enhance ‘the quality of agency decisions,’ by protecting open and frank discussion among those who make them within the | National_Security_Counselors_2013-08-15.txt |
37453d91-3da2-4c98-8ac8-2e1fd5cd94fa | Government | National_Security_Counselors_2013-08-15.txt |
fbebcb97-b81a-4984-8914-444ddcf2fb23 | .” Klamath Water, 532 U.S. at 8–9 (citations omitted); see also Tax Analysts v. IRS, 117 F.3d 607, 617 (D.C. Cir. 1997) (“[T]he deliberative process privilege . . | National_Security_Counselors_2013-08-15.txt |
7f046448-e07c-4d06-a756-1ce22706d33c | . reflect[s] the legislative judgment that ‘the quality of administrative decision- making would be seriously undermined if agencies were forced to operate in a fishbowl because the full and frank exchange of ideas on legal or policy matters would be impossible.’” (quoting Mead Data Cent., Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242, 256 (D.C. Cir. 1977) (internal quotation marks omitted)) | National_Security_Counselors_2013-08-15.txt |
e4a140fd-eb2f-4f35-b526-8a15c286d6cc | . “The need to describe each withheld document when Exemption 5 is at issue is particularly acute because ‘the deliberative process privilege is so dependent upon the individual document and the role it plays in the administrative process.’” Animal Legal Def. Fund, Inc. v. Dep’t of Air Force, 44 F. Supp. 2d 295, 299 (D.D.C. 1999) (quoting Coastal States Gas Corp. v. Dep’t of Energy, 617 F | National_Security_Counselors_2013-08-15.txt |
f0d0278c-b019-410b-bb3b-18d7db41c807 | .2d 854, 867 (D.C. Cir. 1980)) | National_Security_Counselors_2013-08-15.txt |
cf75408e-4681-4ea8-b905-570063d8dfc9 | . In other words, unlike other exemptions 124 where the agency declaration and Vaughn index may be read in conjunction to provide an adequate justification for application of an exemption to a class or category of records, to sustain its burden of showing that records were properly withheld under Exemption 5, an agency must provide in its declaration and Vaughn index precisely tailored | National_Security_Counselors_2013-08-15.txt |
4f87a627-95e1-4e54-b786-5eb4665ac46c | explanations for each withheld record at issue | National_Security_Counselors_2013-08-15.txt |
d3cb1501-f2c4-4421-bd14-306ce32ba08a | . “The agency must establish ‘what deliberative process is involved, and the role played by the documents in issue in the course of that process.’” Senate of P.R. v. U.S. Dep’t of Justice, 823 F.2d 574, 585–86 (D.C. Cir. 1987) (quoting Coastal States, 617 F.2d at 868) | National_Security_Counselors_2013-08-15.txt |
5ee9caf5-5bee-4e51-b82c-efe4c89ac27d | . “In addition to explaining the ‘function and significance of the document[s] in the agency’s decisionmaking process,’” the agency “must describe ‘the nature of the decisionmaking authority vested in the office or person issuing the disputed document[s], and the positions in the chain of command of the parties to the documents.’” Elec. Frontier Found. v. U.S. Dep’t of Justice (“EFF”), 826 F. Supp | National_Security_Counselors_2013-08-15.txt |
8a4bdb99-4592-48ff-ba9d-08afb39d3fd7 | . 2d 157, 168 (D.D.C. 2011) (quoting Arthur Andersen & Co. v. IRS, 679 F.2d 254, 258 (D.C. Cir. 1982)). a) CIA The plaintiff challenges the CIA’s withholding of 310 responsive records,60 in whole or in part, under Exemption 5, the majority of which were withheld under the deliberative-process privilege. See Pl.’s First 445 Opp’n at 25–34; Pl.’s First 444 Opp’n at 31–35; see also First Lutz Decl | National_Security_Counselors_2013-08-15.txt |
6a62c9a3-9829-4a34-9ef6-ab9addcc6b6d | . Ex. DD; Third Lutz Decl. Ex. K. In challenging these withholding decisions by the CIA, the plaintiff makes five related arguments. First, the plaintiff argues that the CIA’s “declaration[] and Vaughn ind[ex] [is] virtually devoid of any non-conclusory information.” See Pl.’s First 445 Opp’n at 25; see also Pl.’s First 444 Opp’n at 32 | National_Security_Counselors_2013-08-15.txt |
68f59337-45e9-48f7-802e-f84d9dd28b8d | . Second, the plaintiff contends that, in order for the deliberative-process privilege to apply, “release of the information must 60 These are documents that were withheld either only under Exemption 5 or were withheld under Exemption 5 and Exemptions 3 and/or 6. 125 inaccurately reflect or prematurely disclose the views of the agency.” Pl.’s First 445 Opp’n at 28; Pl.’s First 444 Opp’n at 33 | National_Security_Counselors_2013-08-15.txt |
6503e952-ea55-4efa-8a6e-c40c1bf19681 | . Yet, the plaintiff contends, “[t]he views of the agency regarding these [FOIA] requests are clear from the text of the response letters, so it is unreasonable to think that someone reading these notes would mistake which conclusions were adopted as the official agency position.” Pl.’s First 444 Opp’n at 33 | National_Security_Counselors_2013-08-15.txt |
846c79c4-03c4-4ded-94ef-2d1b6ead55cf | . Third, the plaintiff implies that some of the withheld material may have been “‘adopted formally or informally, as the agency position on an issue, or used by the agency in its dealings with the public.’” Id. (quoting Judicial Watch v. U.S. Postal Serv., 297 F. Supp. 2d 252, 261 (D.D.C. 2004)); see also Pl.’s First 445 Opp’n at 28–29 | National_Security_Counselors_2013-08-15.txt |
5f6a4fb5-a2ee-4144-83e2-a0a762695bfa | . Fourth, the plaintiff argues that the deliberative-process privilege does not apply because “whether or not the author will be exposed is a significant factor” in applying the privilege, and the names of the agency employees involved in the communications could be redacted. See Pl.’s First 444 Opp’n at 34; Pl.’s First 445 Opp’n at 29 | National_Security_Counselors_2013-08-15.txt |
c947f49a-e20c-41b2-9e04-709a049278b2 | . Finally, the plaintiff contends that three of the documents withheld by the CIA under the deliberative-process privilege (C05520230, C05520207, and C05520221) are “neither predecisional nor deliberative” because, as described in the Vaughn index, they “are policy documents which merely inform the target audience (FOIA analysts and managers) of CIA’s procedures and policies.” Pl | National_Security_Counselors_2013-08-15.txt |
54cfe47b-450d-4b73-b84f-43efe95fe523 | .’s First 445 Opp’n at 29–30. The plaintiff’s first argument alone succeeds in defeating summary judgment for the CIA with respect to the deliberative-process privilege. Unlike some other FOIA Exemptions (e.g., Exemption 1), when an agency claims the deliberative-process privilege under Exemption 5, the factual context surrounding the withheld document is critical | National_Security_Counselors_2013-08-15.txt |
a5b3364d-d4ee-4db1-be43-9cec853647a9 | . As stated above, “[t]he need to describe each withheld document when Exemption 5 is at issue is particularly acute because ‘the deliberative process privilege is so dependent upon the individual document and the role it plays in the administrative process.’” Animal Legal Def. Fund, 44 F. Supp. 2d at 299 (emphasis 126 added) (quoting Coastal States, 617 F.2d at 867) | National_Security_Counselors_2013-08-15.txt |
318a61d8-2dd4-4260-b62c-bfa8feb6bcf3 | . At a minimum, the agency must provide three basic pieces of information in order for the deliberative-process privilege to apply: (1) the nature of the specific deliberative process involved, (2) the function and significance of the document in that process, and (3) the nature of the decisionmaking authority vested in the document’s author and recipient. See, e.g., Senate of P.R., 823 F | National_Security_Counselors_2013-08-15.txt |
4cada04c-b100-4c46-bf39-bb756a15e53b | .2d at 585–86; Arthur Andersen, 679 F.2d at 257– 58; Coastal States, 617 F.2d at 867–68. The Court will discuss each of these pieces of information in turn with respect to the CIA. As to the first piece of information, in No | National_Security_Counselors_2013-08-15.txt |
307ffaa7-6dc4-49ba-a965-d64cc57ddc67 | . 11-445, the CIA states generally in its declaration that “[t]he deliberative information contained in these documents was solicited, received, or generated as part of the process by which the [CIA] comes to a final determination in response to FOIA requests.” Third Lutz Decl. | National_Security_Counselors_2013-08-15.txt |
12da6df4-eb44-4e05-a5db-6081c4078279 | . The individual entries in the CIA’s Vaughn index, however, do not elaborate on the “specific deliberative process to which the withheld [document] contributed.” See EFF, 826 F. Supp. 2d at 168 (emphasis added). Providing only a general description like “the process by which the [CIA] comes to a final determination in response to FOIA requests,” Third Lutz Decl | National_Security_Counselors_2013-08-15.txt |
a98e56d8-8e1b-4715-b215-2f29ed1d9b7c | . , is particularly problematic in the FOIA processing context because, in responding to a FOIA request, an agency often must make several different types of decisions, e.g., withholding decisions, fee-waiver decisions, expedited processing decisions, and others. As to the second piece of information regarding the role played by the document in the deliberative process, in No | National_Security_Counselors_2013-08-15.txt |
6fbe2afd-cc19-48db-9433-500330710265 | . 11-445 the CIA lists four kinds of information that it withheld as deliberative and predecisional, which include: (1) “recommendations on withholdings and exemptions to be applied to particular requests,” (2) “preliminary search results generated in response to a FOIA or Privacy Act tasking,” (3) “the status of requests in processing,” and 127 (4) “inter-agency memoranda containing the CIA’s | National_Security_Counselors_2013-08-15.txt |
71ff5269-c7cf-414a-ab97-04cf1813fd73 | proposals and recommendations | National_Security_Counselors_2013-08-15.txt |
579c63c5-5dcf-4838-87d7-4663c1191813 | .” Third Lutz Decl. . The CIA provides similarly generic descriptions in No. 11-444, stating only that information “includes FOIA analysts’ recommendation [sic] about how to process this request” and “suggests a course of action relating to this FOIA request.” See First Lutz Decl. Ex. DD at 17, 130 | National_Security_Counselors_2013-08-15.txt |
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