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7f8c46c3-4fb6-405b-8a04-889d042c2129 | .3d at 741, and therefore the DOJ cannot assert attorney-client privilege to withhold it. Accordingly, the Court will direct 141 the DOJ to disclose to the plaintiff those portions of Document 3 (a memorandum entitled “Applicability of User’s Fee Statute to Mandatory Declassification Review,” see Colborn Decl. Ex. G) that were disclosed in the meeting minutes submitted by the plaintiff | National_Security_Counselors_2013-08-15.txt |
23c6fb32-2b0f-4758-bfca-5b050e271e02 | .72 As to the third of the five opinions (Document 4), the plaintiff has submitted “a cable from the U.S. Embassy in Tokyo to Washington, D.C.,” which the plaintiff says “sum[s] up” the conclusions of Document 4. See Pl.’s First 445 Opp’n at 32. The plaintiff also asserts that this cable contains “an express citation to the opinion.” Id | National_Security_Counselors_2013-08-15.txt |
add4956c-689f-454b-a470-611b7c16191a | . The cable submitted by the plaintiff cites to an “unclassified telegram” dated December 23, 1975 from the Drug Enforcement Administration (“DEA”) headquarters, not to an OLC opinion. See Pl.’s First 445 Opp’n Ex. L at 1, No. 11-445, ECF No. 33-12 | National_Security_Counselors_2013-08-15.txt |
94664bfb-2ff2-497e-9110-f2bc9a09cfb2 | . The cable goes on to quote from this telegram, summarizing “the opinion of Mary Lawton” regarding the status of government employees assigned to diplomatic or consular missions for purposes of the Privacy Act. See id. It may very well be that this cable is indirectly summarizing Document 4, which was a legal opinion authored by the OLC on May 6, 1975. See Colborn Decl. Ex. G | National_Security_Counselors_2013-08-15.txt |
b82ab2f8-f521-433f-996e-047e8fc2bb3d | . The cable does not, however, include “an express citation to the opinion,” as the plaintiff asserts, Pl.’s First 445 Opp’n at 32, and the only connection to the OLC is the cable’s reference to “the opinion of Mary Lawton, Deputy Asst Attorney General, Office of Legal Counsel,” Pl.’s First 445 Opp’n Ex. L at 1 | National_Security_Counselors_2013-08-15.txt |
578fcac1-e1ed-4d1e-8f01-77dddff2ca63 | . This sparse information is insufficient for the Court to conclude that the cable submitted by the plaintiff discloses any of the contents of Document 4 in particular, and therefore the Court cannot conclude that Document 4 has been officially disclosed in whole or in part or that the DOJ has waived the attorney-client privilege as to any portion of Document 4 | National_Security_Counselors_2013-08-15.txt |
1492fcc5-3f21-4c47-94bc-0bce39653c59 | . 72 Portions of Document 3 may not have been disclosed in the meeting minutes submitted by the plaintiff and thus need not be disclosed to the plaintiff. On the other hand, disclosure of Document 3 in its entirety is appropriate if the entire substance of which is reflected in those publicly available meeting minutes | National_Security_Counselors_2013-08-15.txt |
05c3eace-a1d2-4ff0-ab90-22934b7f37d2 | . 142 Next, as to the fourth of the OLC opinions (Document 13), the plaintiff submits a subsequent, publicly available OLC opinion that “directly reference[s]” a conclusion contained in Document 13. The publicly available OLC opinion submitted by the plaintiff specifically cites Document 13, stating “[w]e . . | National_Security_Counselors_2013-08-15.txt |
163b2bfe-6d57-49fc-a6ce-4c5524328f38 | . opined in 1982 that advisory committee documents are available through FOIA requests made to the supervising agency and that the advisory committee must cooperate.” Pl.’s First 445 Opp’n Ex. M at 3, No. 11-445, ECF No. 33-13 | National_Security_Counselors_2013-08-15.txt |
15c8eb21-a776-4b53-9e3c-23f555983ed4 | . This brief discussion of Document 13 clearly discloses at least one conclusion of that OLC opinion, and therefore the DOJ once again cannot rely on the attorney-client privilege to withhold that disclosed material. See, e.g., In re Sealed Case, 121 F.3d at 741. The Court will therefore direct the DOJ to disclose to the plaintiff the specific portion or portions of Document 13 which “opine[] . . | National_Security_Counselors_2013-08-15.txt |
73053861-c597-4069-a2bc-d70bb94d2751 | . that advisory committee documents are available through FOIA requests made to the supervising agency and that the advisory committee must cooperate.” See Pl.’s First 445 Opp’n Ex. M at 3 | National_Security_Counselors_2013-08-15.txt |
802142f5-1950-4b4b-b333-3e522f2cef1c | . Finally, as to the fifth OLC opinion challenged by the plaintiff (Document 2), the plaintiff submits “systematic declassification review guidelines” promulgated by the Information Security Oversight Office (“ISOO”), “pertaining to, among other things, foreign government information,” which is the general subject of Document 2. See Pl.’s First 445 Opp’n at 33 | National_Security_Counselors_2013-08-15.txt |
e4d48a88-0479-4bc0-a922-70dfab61dd56 | . The plaintiff has also submitted a letter from an OLC official providing the ISOO “with [OLC’s] full concurrence concerning these guidelines.” Pl.’s First 445 Opp’n Ex. N at 9, No. 11-445, ECF No. 33-14. The plaintiff contends that “OLC’s concurrence suggest that these guidelines relied in part on the conclusions of Doc[ument] 2.” Pl.’s First 445 Opp’n at 33 n.26 | National_Security_Counselors_2013-08-15.txt |
3be422a2-b74e-4e61-95d0-f1063fb2fd59 | . The plaintiff’s argument attempting to connect the ISOO’s guidelines with Document 2, however, is a stretch to say the least. Although it is possible that the ISOO guidance submitted by the plaintiff may have 143 relied upon some or all of the legal advice contained in Document 2, that conclusion is far from clear | National_Security_Counselors_2013-08-15.txt |
fdbb7537-a513-4a81-aa87-038346ca4644 | . Even had the ISOO relied on the OLC’s legal advice in Document 2, the disclosure of guidelines based on legal advice does not constitute a disclosure of the legal advice itself. The connection is simply too attenuated to constitute either an official acknowledgement or a waiver of the attorney-client privilege | National_Security_Counselors_2013-08-15.txt |
3f3da64f-fe7c-4093-a89c-64b43c1ab3be | . The Court therefore concludes that the plaintiff’s thin evidence does not establish any official disclosure of the contents of Document 2 or any waiver of the attorney-client privilege as applied to that document, and therefore the DOJ was entitled to withhold Document 2 under the attorney-client privilege. In summary, the Court grants summary judgment to the DOJ on Count Eight in No | National_Security_Counselors_2013-08-15.txt |
3ef5bb21-59ad-4794-9ed5-6b41537a3ab8 | . 11- 445 as to thirteen of the sixteen withheld OLC opinions in their entirety (Documents 1–2, 4–10, 12, 14–16, see Colborn Decl. Ex. G). The Court concludes that the plaintiff’s challenge to Document 11 is now moot because the plaintiff has obtained an unredacted copy of that opinion and has not asked the Court to direct the DOJ to produce a further copy pursuant to the plaintiff’s FOIA request | National_Security_Counselors_2013-08-15.txt |
e0af86df-0b34-4ca0-a680-ddc732a95545 | . The Court will deny summary judgment in part to the DOJ as to the portions of Documents 3 and 13 that were publicly disclosed in the documents submitted by the plaintiff | National_Security_Counselors_2013-08-15.txt |
6b3b81d5-13ac-4077-aa34-4e0149fc12b2 | . The DOJ will be required to disclose the portions of Documents 3 and 13 that correspond to the pieces of privileged information that were made publicly available by the agencies who received the legal advice in question from the OLC.73 3 | National_Security_Counselors_2013-08-15.txt |
5379ba82-e094-470a-a177-4999c0d5822f | . Attorney Work-Product Doctrine Finally, the Court will address the DIA’s apparent invocation of the attorney work- product doctrine to withhold responsive records under Exemption 5. See Judicial Watch, Inc. v | National_Security_Counselors_2013-08-15.txt |
7c638b2d-da31-436f-bb14-d54c1e542c73 | . 73 The Court will not, however, “order DOJ to immediately confirm that none of the information in any of these withheld opinions has been previously officially disclosed,” as the plaintiff requests. See Pl.’s First 445 Opp’n at 33 (emphasis in original). The burden remains on the plaintiff “point to specific information in the public domain” that is “identical to that being withheld | National_Security_Counselors_2013-08-15.txt |
5c498544-107d-43bc-9a1f-fe83dbd476e8 | .” Davis, 968 F.2d at 1280. 144 Dep’t of Justice, 432 F.3d 366, 369 (D.C. Cir. 2005) (“FOIA Exemption 5 incorporates the work-product doctrine and protects against the disclosure of attorney work product.”) | National_Security_Counselors_2013-08-15.txt |
a690226f-414a-4582-a843-e1fbff06b8ff | . “The work-product doctrine shields materials ‘prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative (including the other party’s attorney, consultant, surety, indemnitor, insurer, or agent).’” Id. (quoting FED. R. CIV. P. 26(b)(3)) | National_Security_Counselors_2013-08-15.txt |
cf3c1540-23ec-4870-8a98-a97733fd5d63 | . When reviewing an agency’s withholding of material under the work-product doctrine, the “‘testing question’ . . . is ‘whether, in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation.’” In re Sealed Case, 146 F.3d 881, 884 (D.C. Cir. 1998) (quoting Senate of P | National_Security_Counselors_2013-08-15.txt |
88358931-b0da-4199-8aa6-33d9226648cb | .R., 823 F.2d at 586 n.42). “For a document to meet this standard, the lawyer must have at least had a subjective belief that litigation was a real possibility, and that belief must have been objectively reasonable.” Id | National_Security_Counselors_2013-08-15.txt |
73c98504-5cda-4281-8431-e2d8ceb46bbe | . Hence, at a minimum, an agency claiming the attorney work-product doctrine to withhold responsive material under the FOIA must (1) “provide a description of the nature and contents of the withheld document,” (2) “identify the document’s author or origin (by job title or otherwise),” (3) “describe the factual circumstances that surround the document’s creation,” and (4) “provide some indication | National_Security_Counselors_2013-08-15.txt |
d7756159-1a0f-4af4-a431-984d33cd1c51 | of the type of litigation for which the document’s use is at least foreseeable | National_Security_Counselors_2013-08-15.txt |
1e001163-632c-44a4-a976-d55016c75ff9 | .” Am. Immigration Council, 2013 WL 3186061, at *16. In its declarations, the DIA states that “a significant portion of the responsive records identified in this case related to other civil cases that arose from FOIA requests submitted by requesters referenced in [the plaintiff’s] request.” First Williams Decl. | National_Security_Counselors_2013-08-15.txt |
e32b48f6-a14f-4ea8-8aa2-55c431a236e1 | . The DIA’s declarant further averred that “[t]hese records consist of the active discussions between counsel assigned by the Office of the General Counsel with DIA and other government employees in 145 preparation of the agency’s defense in litigation.” Id | National_Security_Counselors_2013-08-15.txt |
7d01c503-025c-4da1-ac03-33907708992e | . Accordingly, the DIA asserts that “disclosure of this information would reveal the case preparation, legal advice, and review recommendations of agency counsel.” Id | National_Security_Counselors_2013-08-15.txt |
98c12852-2569-4659-a659-6048355ccc98 | . The DIA’s declarant states that “[i]n each instance where Exemption [5] is asserted to protect the attorney work-product, I have concluded that agency counsel was providing specific legal guidance related to an actual or potential litigation matter.” Second Williams Decl. | National_Security_Counselors_2013-08-15.txt |
3b7cee47-738c-4d48-9648-a3ec76b53f59 | . The DIA’s Vaughn index provides (1) the date that each withheld document was created, (2) a very brief description of the document (e.g | National_Security_Counselors_2013-08-15.txt |
000a26d2-82e6-4ae4-b3c4-42cae01d920d | ., “2-page letter”), (3) the agency that originated the document, and (4) a boilerplate statement that the document “contains comments and recommendations” and that it was withheld “as an attorney work product” because it “was prepared in anticipation of litigation.” See Second Williams Decl. Ex. A | National_Security_Counselors_2013-08-15.txt |
06fab4e4-03e0-4cda-b83f-2af64c6e28ea | . The Court concludes that the DIA’s submissions do not provide enough factual context regarding each of the withheld documents for the Court to conclude that each document is entitled to the protections of the attorney work-product doctrine. Specifically, the DIA fails to provide any document-specific information about “the factual circumstances that surround the document’s creation.” See Am | National_Security_Counselors_2013-08-15.txt |
8a441f9d-41a2-4434-9fc7-64da4f02cad6 | . Immigration Council, 2013 WL 3186061, at *16. In this regard, the DIA’s Vaughn index does not specify whether the document was created with regard to a case currently in litigation or a case that was likely to enter litigation | National_Security_Counselors_2013-08-15.txt |
e8d86efc-eeab-4cef-8532-e71f966a0417 | . The DIA’s Vaughn index also provides nearly no information about the nature of each specific document, which is critical in determining whether the protections of the attorney work-product doctrine apply. See Senate of P.R., 823 F.2d at 586 n.42 | National_Security_Counselors_2013-08-15.txt |
d7eb843c-30a5-42ee-8103-e4d0256fe08a | . Although the DIA’s declarant states generally that each withheld document contains “legal guidance related to an actual or potential litigation matter,” Second Williams Decl. , the DIA has the burden to establish that fact with respect to each document | National_Security_Counselors_2013-08-15.txt |
ab1720bb-33c7-4a14-b9c8-15d534fd41df | . 146 This is particularly important for documents created with an eye toward “potential litigation” because, when litigation is only a possibility, the Court is required to assess “whether, in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation.” Senate of P.R | National_Security_Counselors_2013-08-15.txt |
488faebe-5104-4064-a79c-18bdbac54585 | ., 823 F.2d at 586 n.42. The Court has no way to make that document-by-document assessment based on the DIA’s submissions. Indeed the Court has no way of knowing which documents withheld by the DIA were prepared with respect to “actual . . . litigation” and which were prepared with respect to “potential litigation.” See Second Williams Decl. | National_Security_Counselors_2013-08-15.txt |
59d48593-56c8-40b8-96c9-1deab6589904 | . Accordingly, the Court denies summary judgment to the DIA on Count Five in No. 11-445 with respect to its Exemption 5 withholdings. * * * In sum, the Court denies summary judgment to the CIA, ODNI, DIA, and DOJ with respect to each agency’s decision to withhold responsive material under Exemption 5 | National_Security_Counselors_2013-08-15.txt |
4f1f2021-69fd-44f8-b591-7214d255c81b | . Specifically, with respect to each agency’s Exemption 5 withholding decisions, the Court denies summary judgment to the CIA with regard to Count Seventeen in No. 11-444 and Counts One, Two, Three, and Seven in No. 11-445, to the ODNI with regard to Count Six in No. 11-445, and to the DIA with regard to Count Five in No. 11-445 | National_Security_Counselors_2013-08-15.txt |
0b77d574-ea2d-464e-b3ee-ef9cb503e979 | . These agencies may either renew their summary judgment motion with supplementary declarations and Vaughn indices, or else they must disclose to the plaintiff the responsive records or portions thereof that were withheld under Exemption 5. Finally, the Court grants in part and denies in part summary judgment to the DOJ on Count Eight in No. 11-445 | National_Security_Counselors_2013-08-15.txt |
8810540f-98e5-435b-9eea-d25f59796645 | . The Court denies summary judgment to the DOJ on Count Eight as to the portions of Documents 3 and 13 that were publicly disclosed in the documents 147 submitted by the plaintiff, and the Court grants summary judgment to the DOJ in all other respects. K | National_Security_Counselors_2013-08-15.txt |
eb4cec40-fd59-40c2-9b6a-3c013e088943 | . Electronic Records The plaintiff next opposes a grant of summary judgment to the CIA and the State Department regarding those agencies’ refusal to provide responsive records in electronic format. See Pl.’s First 444 Opp’n at 39–40; Pl.’s First 445 Opp’n at 37. The FOIA provides, “[i]n making any record available to a person . . | National_Security_Counselors_2013-08-15.txt |
8fb61c24-f176-4f86-9514-b3abac6644e3 | . an agency shall provide the record in any form or format requested by the person if the record is readily reproducible by the agency in that form or format.” 5 U.S.C. § 552(a)(3)(B). In this regard, “[e]ach agency shall make reasonable efforts to maintain . . . records in forms or formats that are reproducible for purposes of this section.” Id | National_Security_Counselors_2013-08-15.txt |
d0f20de8-e5a5-4d4f-a382-226ad6c6bfbe | . Finally, the FOIA requires that “a court shall accord substantial weight to an affidavit of an agency concerning . . . reproducibility under paragraph (3)(B).” Id. § 552(a)(4)(B). There are two separate issues under the FOIA’s “readily reproducible” provision | National_Security_Counselors_2013-08-15.txt |
4856ac76-4783-480d-875f-84ee8e999d22 | . The first issue is whether or not a particular record “is readily reproducible by the agency in [the] form or format [requested by the person],” 5 U.S.C. § 552(a)(3)(B), and the “form or format” in this case is an electronic format | National_Security_Counselors_2013-08-15.txt |
fa602307-aad8-4a4b-a065-b64c72b0f801 | . The second issue is whether the State Department has “ma[d]e reasonable efforts to maintain its records in forms or formats that are reproducible” in electronic format. Id | National_Security_Counselors_2013-08-15.txt |
78ab1f34-0648-43e5-b57e-e8b413ae336e | .74 Both of these provisions were added to the FOIA as a part of the 1996 Electronic 74 The CIA has previously asserted that “[i]n determining whether an agency has met this [second] requirement, courts look at whether agency records can be reproduced, not whether they can be readily reproduced in the format requested by a particular requester.” Def.’s Supplemental Mem. & Decl. at 2, No | National_Security_Counselors_2013-08-15.txt |
2cfdc881-37b1-4c31-8750-c799d9f1a4ce | . 11-443, ECF No. 21. The Court disagrees. The statute reads: “In making any record available to a person under this paragraph, an agency shall provide the record in any form or format requested by the person if the record is readily reproducible by the agency in that form or format | National_Security_Counselors_2013-08-15.txt |
5226767a-220e-4ad8-aec0-30b3f3e919ba | . Each agency shall make reasonable efforts to maintain its records in forms or formats that are reproducible for purposes of this section.” 5 U.S.C. § 552(a)(3)(B) (emphasis added) | National_Security_Counselors_2013-08-15.txt |
e4276a29-8e53-4179-92d1-1ad3ed3ec595 | . The only two references to the word “reproducible” in the FOIA are in subsection 552(a)(3)(B), and therefore the Court reads the phrase “reproducible for purposes of this section” to mean “reproducible [in the form or format requested by the person seeking the records].” The Court has previously stated on the record in this case that this is how it interprets the language of 5 U.S.C | National_Security_Counselors_2013-08-15.txt |
496deaae-855c-450b-82d2-c1385a828274 | . § 552(a)(3)(B). See Tr. of Status Conference (Dec. 16, 2011) at 20:20–21:4 (excerpt available at ECF No. 22-4, No. 11-443). 148 FOIA Amendments (“E-FOIA Amendments”). See Pub. L. No. 104-231, § 5, 110 Stat. 3048, 3050 (1996) | National_Security_Counselors_2013-08-15.txt |
b15aa82b-78a2-4aa5-a5db-5705022b491f | . The E-FOIA Amendments were intended to “maximize the usefulness of agency records and information collected, maintained, used, retained, and disseminated by the Federal Government,” and they were specifically intended to encourage government agencies to “use new technology to enhance public access to agency records and information.” Id. § 2, 110 Stat. at 3048–49 | National_Security_Counselors_2013-08-15.txt |
cbd8af1e-36e5-4a1a-b182-41d27214ed25 | . The legislative history of the E-FOIA Amendments elaborated on this purpose, observing that the objective of “promoting greater efficiency in responding to FOIA requests . . . includes using technology to let requesters obtain information in the form most useful to them.” H.R. Rep. 104-795, at 11 (1996). 1 | National_Security_Counselors_2013-08-15.txt |
d1f1367b-8650-420d-bc87-7946ec1f3664 | . CIA With respect to the CIA, the Court first observes that the electronic records issue is not properly before the Court on summary judgment. The CIA has not moved for summary judgment on this issue, or at least does not specifically address this issue in moving for summary judgment in No. 11-443 or 11-444. Additionally, although the plaintiff contends in its opposition brief in No | National_Security_Counselors_2013-08-15.txt |
a885a4dc-29be-4389-9902-324cba6ff960 | . 11-444 that “[t]he Court should order [the CIA] to promptly produce [certain] records in electronic format and to make provisions for the production in electronic format of records responsive to the remainder of NSC’s requests at issue in this case,” Pl.’s First 444 Opp’n at 40, the plaintiff likewise has not cross-moved for summary judgment on the electronic records issue | National_Security_Counselors_2013-08-15.txt |
74330ec0-199e-472c-a38e-1fccde4330a1 | . The plaintiff first raised the electronic records issue in these related cases in the context of a discovery dispute with the CIA in No. 11-443. See Pl.’s Mot. for Status Conference Regarding Count 3, No. 11-443, ECF No. 15 | National_Security_Counselors_2013-08-15.txt |
5ea1c076-707b-4f0e-a7af-e6b71d067ba6 | . In particular, the plaintiff “request[ed] a status conference regarding [the] CIA’s refusal to provide electronic records in response to [the] FOIA Request [at issue in Count Three in No. 11-443].” Id. at 1. The Court granted the plaintiff’s 149 request and held a status conference on this issue on December 16, 2011. See Minute Order dated Dec. 8, 2011, No. 11-443 | National_Security_Counselors_2013-08-15.txt |
76997522-0408-4d2f-9a86-0f2ef23da8d2 | . The Court also permitted the parties to submit authority in support of their respective positions, see id., and, following the status conference, directed the CIA to submit further explanation of three specific issues that were raised but not satisfactorily resolved at the status conference, see Minute Order dated Dec. 16, 2011, No. 11-443 | National_Security_Counselors_2013-08-15.txt |
046b5d61-5de5-4a9c-944c-d6819dab3cd8 | . The plaintiff subsequently moved for a second status conference, see Mot. for Supplemental Status Conference Regarding Count 3 & Electronic Records, No. 11-443, ECF No. 22, but the Court denied this request. See Minute Order dated Jan. 31, 2012, No. 11-443 | National_Security_Counselors_2013-08-15.txt |
ca10c1ce-0f03-4c9e-a44c-864ca2d0e397 | . The Court observed that the CIA’s declarations on the electronic records issue “are not a model of clarity,” but the Court concluded that “another status conference on this same topic will divert judicial resources from the pending motion [to dismiss] in this case and the issues raised may be more efficiently addressed in the context of the pending motion for summary judgment in [No. 11-444] | National_Security_Counselors_2013-08-15.txt |
ae4ff884-b919-4ec7-8c95-188d3e02d58e | .” Id. Unfortunately, the electronic records issue cannot be “more efficiently addressed in the context of the pending motion for summary judgment in [No. 11-444].” See id. As discussed above, the CIA has not specifically addressed that issue in moving for summary judgment in No. 11-444, and the CIA only submitted a declaration on that issue in its reply brief in that case. See Def | National_Security_Counselors_2013-08-15.txt |
3da0d1e8-331c-4b73-b7f0-7fe5bcfc330e | .’s First 444 Reply at 23–4. To the extent that the CIA implicitly moved for summary judgment on the electronic records issue by submitting a declaration attached to its reply brief, the Court denies summary judgment to the CIA because the declarations submitted by the CIA on this issue appear to the Court as unclear and internally inconsistent | National_Security_Counselors_2013-08-15.txt |
fcdffc3d-1fe2-40fa-94f6-96fa17e9c941 | . Of particular note, the first declaration, submitted by Susan Viscuso, the former chief of the CIA’s PIPD, stated that “the CIA maintains two different IT systems, a classified system and an unclassified system.” See Decl. of Susan Viscuso (Dec. 13, 2011) (“First Viscuso Decl.”) , No. 11-443, ECF No. 150 19-1 | National_Security_Counselors_2013-08-15.txt |
71775d47-4542-453e-a31a-a094fb08c07a | . The declarant also averred that “[w]hen records responsive to Plaintiff’s FOIA request were located, they were scanned and uploaded to the classified system.” Id. . This statement strongly implies that responsive records were located somewhere other than the CIA’s classified system and, after being located, were “scanned and uploaded to the classified system.” See id. (emphasis added) | National_Security_Counselors_2013-08-15.txt |
7dcd6815-e446-4f4e-a8c5-314a3142112b | . Yet, in her second declaration, Ms. Viscuso averred that “[t]he CIA does not transfer documents from the unclassified system to the classified system for review and redaction pursuant to a FOIA request,” and “[i]nstead, the unclassified records are already stored on the classified system.” Supplemental Decl. of Susan Viscuso (Jan. 13, 2012) (“Second Viscuso Decl.”) , No. 11-443, ECF No | National_Security_Counselors_2013-08-15.txt |
b82637ba-ea4b-4fb9-9580-9ca8da52be08 | . 21-1(emphasis added). The CIA’s declarant does not reconcile how it is that the agency “does not transfer documents from the unclassified system to the classified system,” Second Viscuso Decl. , while, at the same time, records responsive to the plaintiff’s FOIA request were “scanned and uploaded to the classified system” after being located, First Viscuso Decl. (emphasis added) | National_Security_Counselors_2013-08-15.txt |
e70ac0a5-8744-4e3c-8561-e781967557a0 | . Relatedly, if responsive records are located elsewhere before being “scanned and uploaded to the classified system,” see First Viscuso Decl. , but “all CIA systems of records are located on the Agency’s classified system,” Second Viscuso Decl | National_Security_Counselors_2013-08-15.txt |
ae3672d2-d4b3-4d15-9a2a-463b17db3bdc | . , the CIA does not explain in which system of records the potentially responsive records were “located” prior to being “scanned and uploaded to the classified system,” see First Viscuso Decl. | National_Security_Counselors_2013-08-15.txt |
629e43d4-e5b0-4564-a302-b753b5984022 | .75 These statements, read together, appear inconsistent with one another, or at the very least these statements raise further questions about how the CIA stores, locates, and internally transfers potentially responsive records during the processing of FOIA requests | National_Security_Counselors_2013-08-15.txt |
fa9a5de6-d6a9-4659-a854-4cc65765e7ee | . These lingering questions prevent the Court from being able to grant summary judgment to the CIA on the issue of refusing to produce 75 Additionally, if some potentially responsive records are located in places other than “systems of records,” the CIA does not explain where such repositories of records are located or why they are not required to be located on the CIA’s classified system | National_Security_Counselors_2013-08-15.txt |
4661041a-a9cb-4903-9576-e17901369f56 | . See Second Viscuso Decl. . 151 electronic records.76 Therefore, the Court denies summary judgment to the CIA on Count Three in No. 11-443 and on Counts Seventeen and Eighteen in No. 11-444 regarding the CIA’s refusal to produce responsive records in an electronic format.77 2 | National_Security_Counselors_2013-08-15.txt |
be76b71f-a8cc-45c6-ba06-acedbd9e8115 | . State Department With respect to the State Department, the plaintiff contends that the agency “has now implemented a FOIA processing system which only resides on its classified network, making it impossible for it to easily produce electronic records in response to a FOIA request.” Pl.’s First 445 Opp’n at 37 | National_Security_Counselors_2013-08-15.txt |
dedd8b96-6f0d-474c-b1ec-1eddc9aea0dc | . The plaintiff claims that “State converted to this system only within the past two years,” making State’s decision “even more questionable.” Id. The State Department explains in its sworn declaration that it “processes and reviews documents potentially responsive to a FOIA or Privacy Act request on its classified network, which is also where the [State] Department’s redaction capabilities exist | National_Security_Counselors_2013-08-15.txt |
b4a5f1eb-0418-41d3-86fa-4914cedcab8b | .” First Walter Decl. . The State Department avers that processing potentially responsive documents on its classified system is necessary for three reasons | National_Security_Counselors_2013-08-15.txt |
3eb10802-1902-4291-9387-5898298b6b43 | . First, the State Department avers that “the Department must conduct a line-by-line classification review of all information responsive to a FOIA request regardless of how such documents are marked, and regardless of whether, in the abstract, they are likely to contain classified information.” Id. | National_Security_Counselors_2013-08-15.txt |
7f174eff-5f66-4e54-97f2-73345bf0ac39 | . Second, the State Department claims that it must review all potentially responsive documents on its classified system because “the software the Department uses to review potentially responsive material also contains its only ability to redact 76 The Viscuso declarations only addressed “the records responsive to Plaintiff’s FOIA request [in Count Three of No.11-443].” See First Viscusco Decl. | National_Security_Counselors_2013-08-15.txt |
8f22d522-1d6e-4d96-8393-185e3bc0cb13 | . The CIA submitted a separate declaration authored by Scott Koch, the chief of the CIA’s Information Review and Release Group, regarding the FOIA requests at issue in Counts Seventeen and Eighteen in No. 11-444. See Decl. of Scott Koch (Feb. 27, 2012) (“Koch Decl.”) , No. 11-444, ECF No. 27-1 | National_Security_Counselors_2013-08-15.txt |
70d51cac-414a-4705-a7d9-26053312dcd1 | . The Koch Declaration, however, adds nothing to the information contained in the Viscuso declarations and therefore does not resolve any of the lingering questions raised by those declarations | National_Security_Counselors_2013-08-15.txt |
bf1553eb-8281-4167-8e85-e5c0b17b2760 | . 77 It may be that these and other lingering factual questions in these cases will have to be resolved in the traditional manner of resolving factual disputes in the federal judicial system—a hearing or trial. See Margaret B. Kwoka, The Freedom of Information Act Trial, 61 AM. U. L. REV | National_Security_Counselors_2013-08-15.txt |
6868c5f8-4a11-4969-95fe-d7b602c52fc8 | . 217, 268 (2011) (contending that “[a] look at the records in those rare FOIA trials demonstrates both that FOIA trials are possible and that they are useful”). 152 information.” Id. | National_Security_Counselors_2013-08-15.txt |
89c0102c-9f21-4ff3-9d50-86daa843fd40 | . Third, the State Department states that processing FOIA requests on its classified network is necessary because “[a] significant portion of the Department’s business is classified,” and “a large number of the documents responsive to FOIA requests received by the Department are classified documents,” and thus “the Department’s software for processing information access requests was designed for | National_Security_Counselors_2013-08-15.txt |
5b780565-c14f-4842-a1d3-c4e5069b2275 | and installed on the Department’s classified system | National_Security_Counselors_2013-08-15.txt |
4d6084c4-e921-450a-a7fb-993f70882f6c | .” Id. Additionally, the State Department’s declarant explains in detail why “[p]roviding Plaintiff with electronic versions of responsive documents would be very costly and time- consuming because of the additional steps the Department would have to take to comply with its information security procedures.” Id. | National_Security_Counselors_2013-08-15.txt |
6ed3e02f-f02e-448d-89f5-bee8c0601567 | . First, these “information security procedures” would require “that an analyst within IPS locate and identify all non-exempt, releasable records within the processing system and then submit a formal, written request to the internal systems support staff in IPS stating that all such records have been deemed suitable for transfer.” Id | National_Security_Counselors_2013-08-15.txt |
ef51247b-8276-4e6c-8a76-6a1ef34330ac | . Second, “[u]sing special extraction software, the systems support staff would . . . have to remove the releasable records from the Department’s processing system and place them in a folder on the classified network for further review by the Bureau’s Information Systems Security Officer (‘ISSO’).” Id | National_Security_Counselors_2013-08-15.txt |
373fdb41-49f4-4d03-81f2-8e2b011a8457 | . Third, according to the State Department, “[t]he ISSO would then have to inspect each and every document [a second time] on a line-by-line basis to ensure that only the releasable, unclassified records were captured.” Id. Fourth, “a request for support . . . would have to be opened with the Department’s Bureau of Information Resource Management (‘IRM’).” Id. | National_Security_Counselors_2013-08-15.txt |
0ff75a03-7a0d-479b-aa9e-405d7f4bd417 | . Fifth, “[a]fter a virus scan of the unclassified medium, IRM would then transfer each of the documents onto the medium and return the medium to the IPS analyst.” Id | National_Security_Counselors_2013-08-15.txt |
b6cba0a6-1f02-400a-b357-7b8d1af3aef7 | . Finally, “the analyst would have to compare the contents of each of the downloaded files with 153 the contents of each of the records in the classified processing system to ensure that each and every releasable record was properly downloaded.” Id. The State Department avers that “this entire process would potentially take weeks or months for each tranche of releasable documents.” Id | National_Security_Counselors_2013-08-15.txt |
5ef47478-9874-4901-b898-b7936b759144 | . Regarding the question of whether or not State Department records responsive to the plaintiff’s FOIA request were “readily reproducible by the agency in [an electronic] form or format,” 5 U.S.C | National_Security_Counselors_2013-08-15.txt |
8e7bfb2c-5421-4359-be36-d5d705871ac8 | . § 552(a)(3)(B), the Court is somewhat skeptical regarding the State Department’s explanation of the labyrinthine steps that are necessary to move a document from the classified system to an unclassified piece of electronic media | National_Security_Counselors_2013-08-15.txt |
72660061-159d-406a-81d7-da17c84916db | . Specifically, the State Department does not explain why an ISSO would need to perform a second line-by-line review of responsive documents after such documents had already been reviewed by IPS. See First Walter Decl. | National_Security_Counselors_2013-08-15.txt |
356c0342-86e7-459c-bf8b-ccd45a399f24 | . Since the State Department “must conduct a line-by-line classification review of all information responsive to a FOIA request” in the ordinary course of responding to FOIA requests, see id | National_Security_Counselors_2013-08-15.txt |
8a42c542-d023-4977-9b6d-e89d4d8f698c | . the line-by-line review by an ISSO would either be completely duplicative and unnecessary or, if the ISSO’s line-by-line review were the only one performed, it would not add anything to the State Department’s normal burden in responding to FOIA requests | National_Security_Counselors_2013-08-15.txt |
a67593ba-bc1c-4a47-8144-d0b83e1eb378 | . Other than this second, redundant line-by-line review of documents by the ISSO, none of the additional steps required to produce documents in electronic format appear unduly burdensome | National_Security_Counselors_2013-08-15.txt |
328854f8-3fa0-4814-9efd-632c8a9d53e0 | .78 The only one of the additional steps that would appear to involve a substantial amount of time or effort would be the requirement that the IPS analyst compare the contents of 78 The State Department also does not explain why it must call on multiple middlemen to effect the transfer of information from one network to another | National_Security_Counselors_2013-08-15.txt |
99a89e7d-9dd8-4482-a36a-a6bc058b2ecf | . In this regard, it strikes the Court as extremely inefficient for the State Department to pass documents from IPS analysts to “systems support staff” to an ISSO, to the IRM, and then back to the IPS analyst | National_Security_Counselors_2013-08-15.txt |
3b1a2859-14fc-407b-8911-62b0c60de038 | . The implication of the State Department’s declaration is that, in the ordinary course, an IPS analyst is usually the only person to review documents for release, notwithstanding any requirement for approval from superiors | National_Security_Counselors_2013-08-15.txt |
c2e896be-d3ff-417c-93ed-65bd8804db6d | . It would presumably minimize the risk of error (and the risk of releasing classified information) by limiting the number of people who handle releasable information, yet the State Department appears to do just the opposite. 154 the electronic medium to the contents of the classified processing system to ensure that all releasable records are included. See id. | National_Security_Counselors_2013-08-15.txt |
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