206 F.Supp.3d 241
D.D.C.2016Background
- National Security Counselors (NSC) filed three related FOIA/APA actions against CIA, DIA, DOJ, State, NSA, and ODNI challenging processing of numerous FOIA requests and agency FOIA practices; most claims resolved in prior opinions, leaving discrete search and withholding disputes.
- After supplemental agency reprocessing and updated Vaughn indices, remaining disputes centered on adequacy of several CIA searches (Requests F-2011-00682 and F-2010-00020 and four earlier CIA requests) and withholding of ~216 records under FOIA Exemptions 1, 3, and 5 (including CIA Act, National Security Act, deliberative-process, and attorney-client claims) by CIA, DIA, ODNI, and DOJ.
- NSC moved for partial reconsideration of the court’s prior grant of summary judgment to CIA on a claim seeking Tables of Contents (TOCs) from Studies in Intelligence and sought disclosure of certain author names and other items NSC claimed had been publicly released.
- Agencies supplemented searches/productions (including an October 2014 electronic production); CIA explained differences and declined to reprocess redactions made before later public disclosures.
- The court reviewed supplemental declarations and the combined Vaughn index, evaluated adequacy of searches and legal sufficiency of asserted exemptions, and denied NSC’s reconsideration motion, granting summary judgment to defendants on all remaining claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Motion to reconsider CIA TOC ruling (redacted titles/authors & post-production public releases) | CIA withheld information that has been made public; court should order renewed search/release and production of author names | CIA already conducted reasonable searches for officially disclosed material as of the original search date; electronic production mirrored prior hardcopy and reprocessing for post-response public releases is not required | Denied — no extraordinary circumstances; CIA met burden and additional publicly disclosed items after the original search did not require reprocessing or relief; NSC conceded author-name challenge and court refused sua sponte review |
| Adequacy of CIA search for Request F-2011-00682 (IMS search tools/indices) | Search was inadequate; agency failed to describe search parameters and scope | CIA limited search to IMS, consulted IMTOs, identified CADRE and SMART2, searched internal resources and produced responsive descriptions | Granted to CIA — supplemental declaration reasonably detailed scope, personnel, and methods; search reasonably calculated to locate responsive records |
| Adequacy of CIA search for Request F-2010-00020 (OGC guidelines for civil cases) | CIA failed to search appropriately for written guidelines or records of oral training that could be responsive | CIA searched Litigation Division records systems with sensible search terms, conferred with Litigation Division management who confirmed no written guidelines exist (training is oral) | Granted to CIA — searches and follow-up inquiries reasonable; plaintiff’s speculation insufficient to defeat summary judgment |
| Exemption 3 withholdings: CIA Act vs. National Security Act (documents listing which directorate to task, training on Privacy Act, operational-files categories) | CIA Act and Exemption 3 not applicable to many redactions; some materials have been publicly disclosed or are merely organizational/factual | For some items CIA Act invocation rejected; but National Security Act protects disclosure that could reasonably lead to revelation of intelligence sources/methods or capabilities | Mixed: CIA Act withholdings for three documents rejected (CIA Act does not broadly exempt organizational/factual material); withheld material properly protected under National Security Act and Exemption 3 in multiple documents; summary judgment granted to CIA on National Security Act claims |
| Exemption 5 — Deliberative process (CIA, DIA, ODNI) (predecisional/deliberative internal FOIA processing materials, preliminary search terms/results, drafts) | Search terms/results and many processing materials are factual or already disclosed and thus not privileged; agency explanations were too conclusory | Agencies detailed FOIA processing chains, roles (PIPD, IROs), preliminary searches inform final responses; drafts/pre-decisional communications and inter-/intra-agency deliberations would chill candid discussion | Granted for agencies: court found supplemental declarations sufficiently detailed; preliminary search terms/results and many drafts/pre-decisional communications are protected as deliberative; ODNI and DIA withholdings upheld after adequate description |
| Exemption 5 — Attorney-client privilege (CIA training/guidance materials, CADRE entries; DOJ OLC opinions) | Many materials are policy or widely circulated training (not confidential legal advice); prior public disclosures waived privilege as to whole opinions | CIA: redactions reflect legal advice from OGC memorialized in CADRE or embedded in training slides and were kept confidential; DOJ complied with prior order and released publicly disclosed portions; remaining portions remain privileged | Granted: CIA met burden for challenged CADRE and training redactions; DOJ complied with prior directive and properly redacted remaining privileged material; attorney-client withholdings sustained where supported |
Key Cases Cited
- Am. Civil Liberties Union v. U.S. Dep’t of Justice, 750 F.3d 927 (D.C. Cir. 2014) (FOIA’s purpose and disclosure principles)
- Milner v. U.S. Dep’t of Navy, 562 U.S. 562 (2011) (FOIA exemptions are exclusive and narrowly construed)
- Chrysler Corp. v. Brown, 441 U.S. 281 (1979) (basic objective of FOIA is disclosure)
- CIA v. Sims, 471 U.S. 159 (1985) (statutory withholding for intelligence sources and methods under Exemption 3)
- Elec. Frontier Found. v. U.S. Dep’t of Justice, 739 F.3d 1 (D.C. Cir. 2014) (standards for agency affidavits and Exemption 5 deliberative-process analysis)
- Larson v. U.S. Dep’t of State, 565 F.3d 857 (D.C. Cir. 2009) (agency affidavits must be reasonably specific; doctrine of "official acknowledgement")
- Upjohn Co. v. United States, 449 U.S. 383 (1981) (scope and purpose of attorney-client privilege)
- Bonner v. U.S. Dep’t of State, 928 F.2d 1148 (D.C. Cir. 1991) (review should focus on agency’s decision at time of withholding; courts should avoid endless reprocessing)