25 F. Supp. 3d 19
D.D.C.2014Background
- Scudder seeks electronic copies of 419 SII articles from CIA under FOIA.
- CIA contends records cannot be readily reproduced electronically due to security and processing burden.
- CIA proposes paper production of ~19,000 pages as a workaround; cites E-FOIA amendments and workload concerns.
- Plaintiff, with substantial CIA experience, asserts SII articles exist in electronic PDF form and should be readily reproducible.
- Motions: cross-motions for summary judgment on electronic production and fee-waiver issues; discovery/evidentiary hearing sought by plaintiff; several motions noted as moot if first issue resolved.
- Court denies first-set summary judgments without prejudice and grants discovery/evidentiary hearing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether records are readily reproducible in electronic format under FOIA § 552(a)(3)(B). | Scudder contends formats can be provided electronically; records exist in electronic PDF. | CIA asserts it cannot readily reproduce due to technical infeasibility and burden. | Summary judgment denied; material facts in dispute require further evidence. |
| Whether the CIA’s DTO and processing steps render electronic production unduly burdensome. | Plaintiff argues burden facts are disputed and DTO process can be streamlined. | Defendant claims DTO steps create excessive burden and are necessary for security. | Material factual disputes preclude summary judgment on burden; discovery warranted. |
| Whether CIA records already exist in PDF/other electronic formats and thus are readily reproducible. | Records exist electronically; plaintiff offered locations and formats. | Even with existing formats, production method and security processes impede release. | Disputes about existing formats are material; issues remain unresolved. |
| Whether discovery and/or an evidentiary hearing is appropriate to resolve disputed material facts. | Discovery needed to test affidavits and production steps. | FOIA discovery is rare; affidavits deemed sufficiently detailed. | Court grants discovery/evidentiary hearing to resolve material factual disputes. |
Key Cases Cited
- Washington Post Co. v. U.S. Dep’t of Health and Human Servs., 865 F.2d 320 (D.C. Cir. 1989) (summary-judgment context; disputed facts; deference to agency affidavits)
- Niagara Mohawk Power Corp. v. U.S. Dep’t of Energy, 169 F.3d 16 (D.C. Cir. 1999) (rejects improper reliance on conflicting affidavits; factual disputes require trial)
- In Defense of Animals v. USDA, 656 F. Supp. 2d 68 (D.D.C. 2009) (disputed material facts; need for adversary proceeding or evidentiary hearing)
- TPS, Inc. v. U.S. Dep’t of Defense, 330 F.3d 1196 (9th Cir. 2003) (readily reproducible; burden on agency; factual issues cannot be resolved on summary judgment)
- Landmark Legal Found. v. EPA, 272 F. Supp. 2d 59 (D.D.C. 2003) (agency not required to reorganize files; context for electronic formats)