National Security Counselors v. CIA, 969 F.3d 406

Background

National Security Counselors (NSC), a nonprofit that files FOIA requests, brought three district-court suits in 2011 raising 45 FOIA claims against six federal agencies; the district court ruled for the government on all claims.
This appeal addresses three discrete FOIA disputes: (1) NSC’s request to the CIA for lists of all FOIA requesters (2008–2010) sorted by statutory fee categories; (2) NSC’s request to the CIA for “all CIA records pertaining to the IBM supercomputer ‘Watson’”; and (3) NSC’s request to DOJ/Office of Legal Counsel (OLC) for opinions withheld under attorney‑client privilege.
For the fee‑category lists, the CIA declined because its FOIA system did not reliably contain a fee‑category field and producing the sorted lists would require manual review and creation of new compilations.
For the Watson request, the CIA declined as unreasonably burdensome given the breadth of the term and the decentralized, compartmented nature of CIA records; it invited NSC to narrow the scope, which NSC did not do.
For the OLC opinions, the district court ordered disclosure only of portions corresponding to prior official public disclosures; NSC argued it was entitled to full opinions either under the official‑acknowledgment doctrine or because OLC’s prior references waived the attorney‑client privilege.
The D.C. Circuit affirms the district court in all respects, rejecting NSC’s arguments on the three issues and finding no merit in the remaining claims.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether CIA must produce lists of FOIA requesters sorted by fee category	NSC: CIA can sort its database and disclose the resulting lists; sorting is not creating records	CIA: FOIA does not require creation of new records; fee category is not a mandatory field and lists would have to be manually created	Held: CIA need not create new records; production would require creation of compilations and summary judgment for CIA affirmed
Whether CIA must process an unbounded request for all records pertaining to “Watson”	NSC: Request should be read liberally and construed to include records about Watson’s IC impact	CIA: Request as drafted is overbroad; searching CIA-wide would be unreasonably burdensome; agency reasonably invited narrowing	Held: Request was unreasonably burdensome as drafted; CIA properly declined to process it
Whether OLC’s prior references waived attorney‑client privilege or required disclosure beyond officially acknowledged portions	NSC: OLC’s public references constitute waiver or at least permit disclosure of whole opinions (subject‑matter waiver)	DOJ/OLC: Any disclosures were by attorneys, not the client, and did not effect client waiver; official‑acknowledgment permits only specific disclosed portions	Held: No waiver by the client; OLC’s disclosures did not waive the privilege; only portions matching prior official disclosures could be ordered released
Whether district court erred on other FOIA claims	NSC: Various additional challenges to the district court rulings	Government: District court decisions were correct on the merits	Held: D.C. Circuit finds no merit in the remaining arguments and affirms in full

Key Cases Cited

NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (1975) (FOIA covers disclosure of existing agency‑created documents but does not require agencies to create records)
Forsham v. Harris, 445 U.S. 169 (1980) (FOIA imposes no duty to create records)
Yeager v. Drug Enf’t Admin., 678 F.2d 315 (D.C. Cir. 1982) (FOIA requires disclosure of existing records, not creation of new ones)
Am. Fed’n of Gov’t Emps. Local 2782 v. U.S. Dep’t of Commerce, 907 F.2d 203 (D.C. Cir. 1990) (agencies need not honor requests requiring an unreasonably burdensome search)
Goland v. CIA, 607 F.2d 339 (D.C. Cir. 1978) (limits on agency obligations to perform overly broad searches)
Miller v. Casey, 730 F.2d 773 (D.C. Cir. 1984) (FOIA requests are to be read as drafted, not rewritten by agency or requester)
ACLU v. U.S. Dep’t of Def., 628 F.3d 612 (D.C. Cir. 2011) (official‑acknowledgment doctrine can overcome FOIA exemptions for previously disclosed information)
Wolf v. CIA, 473 F.3d 370 (D.C. Cir. 2007) (application of official‑acknowledgment doctrine)
In re Subpoenas Duces Tecum, 738 F.2d 1367 (D.C. Cir. 1984) (disclosure by the privilege holder can waive privilege)
Hanson v. USAID, 372 F.3d 286 (4th Cir. 2004) (an attorney cannot unilaterally waive the client’s privilege)
In re Sealed Case, 737 F.2d 94 (D.C. Cir. 1984) (attorney‑client privilege principles)
In re Sealed Case, 121 F.3d 729 (D.C. Cir. 1997) (discussing waiver and scope of disclosure after waiver)